23 Ala. 143 | Ala. | 1853
The first question presented upon the record, is, as to the admissibility of the two writs of habeas corpus and the returns thereon. In order to determine this question correctly, it may be necessary to advert to the character and position of the case at the time the evidence referred to was offered. The plaintiff in error was attempting to charge the defendant in error for failing to make the money upon a writ of execution against Donald Campbell, which he had received as sheriff. His own returns had been introduced, showing that he had levied the execution on certain negroes, on the 17th October, 1849, and again on the same negroes on the 5th January, 1850, the execution being returnable on the second Monday in March, 1850. A prima facie liability was thus raised against the defendant for the value of the negroes, which he could only relieve himself from by showing a state of facts which would repel the presumption arising from the levies.
It is insisted, however, on the part of the plaintiff in error, that the sheriff should not be allowed to make proof of this character — that it would be contradicting his return, which must be held conclusive against him, until set aside or amended. We do not understand the rule to go this length, (Bancroft v. The Governor, 11 Ala. 605;) but it is unnecessary to inquire into the correctness of this position, as we do not consider that this evidence tended in anywise to dispute or contradict the fact of the levy: it was matter entirely outside of it; and the case of The Governor v. Gibson, 14 Ala. 321, is conclusive upon the point, that testimony of this character may be admitted.
But it is said, that the proceedings under which the negroes were taken from the possession of the sheriff, and subsequently discharged, were void for want of jurisdiction, and for that reason they afforded no protection to the officer in yielding obedience to their mandate; that the proceedings were by habeas corpus ; that the question involved was the right of the negroes to freedom, and that this question could not be tried in that mode.
It is true, that this court has decided, that when negroes are held in servitude and claimed as slaves, they cannot by habeas corpus try the right of the person claiming to be the master or owner to hold them, (Fields v. Walker, 17 Ala. 80,) and we are satisfied with the correctness of that decision; but it does not necessarily follow, that the question of freedom may not be tried
We apprehend that it would hardly be contended, that a
We have said nothing as to the constitutional ground on which the case of Fields v. Walker was put, as it^bviously has no application to a case where the question of ownership is not involved.
It results from the views we have expressed, that the magistrate had jurisdiction to try the legality of the confinement of the negroes levied on,* provided it did not touch the relation of owner; and as it does not appear from the proceedings, that this question was involved, we cannot say that they were without jurisdiction; and as they were valid upon their face, they afforded a protection to the sheriff.
The next question arises upon the action of the court below in admitting the deed of manumission. The general principle that the sheriff may defend himself against a rule for failing to make the money, by showing that the defendant in execution had no property out of which the money could be made, is a proposition no one can doubt; and our own decisions go to the extent that this may be done after levy, if it is shown that he has released the property or returned it to the true owner.—Leavitt v. Smith, 7 Ala. 176; Macon v. Watts, ib. 703. The principle of these decisions is, that the sheriff, by levying upon
The execution in the case under consideration, was upon a debt which was due before the act of manumission; and under these circumstances, as that act was not based upon a valuable consideration, it was simply a gift of freedom to the slaves, and must be governed by the same rules that apply to other gifts. These considerations, however, do not apply to the child George, who was bom in a free State, and after the execution of the deed of emancipation. The condition of the mother at the time of his birth was that of freedom. She was liable, it is true, to be subjected into slavery to satisfy the claims of antecedent creditors, but this could not be done until such creditors had obtained a lien, and until that contingency happened, she must be regarded free to all the world; and the child born while she was
It only remains to consider whether the court below erred in refusing to admit the petitions for the writs of habeas corpus. So far as the jurisdiction of the proceedings was concerned, we have already considered that question, in the previous part of the opinion, and as they could have been introduced only for the purpose of showing the want of jurisdiction, whether they were admitted or not, would make no difference in this respect.
There is no error in the record, and the judgment is affirmed,