
    Thorn v. Kemp.
    
      Action for Damages against Constable, for Breach of Official. Bond.
    
    1. When‘proceedings in justice court competent evidence in action on constable's bond. — When an action is brought in the Circuit Court, against a constable and his official bondsmen, for failure of constable to turn over property to party entitled, that had been levied on by the constable in an action of detinue in justice court, the affidavit, summons and complaint and detinue bond are competent evidence for the plaintiff.
    2. Objection to question not answered. — An exception based on an objection to a question asked that appears not. to have been answered, or if answered, was afterwards, excluded, is not well taken.
    3. Witness placed under the rule. — Where a witness has been placed under the rule, and comes back into the court and listens to the evidence, it is in the discretion of the court whether he be permitted to testify in the case; and, the ruling of the court on the subject is not a subject of review in this court.
    4. Levy on property not shown by the return. — The return of the sheriff is not conclusive as to any matters in respect to which it is silent; if property is levied on, which is not mentioned in the return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff involving the property actually levied on.
    5. Burden of proof in action at bar. — In the case at bar, the burden is on the plaintiff to maintain the averments oí Iris complaint; had plaintiff sued in detinue, trover or trespass, proof oí actual possession, or of a right to immediate possession, and the seizure of the property by the constable, would have authorized a recovery.
    6. Getting possession of property by breach of the peace. — No man can obtain possession of property in the actual possession of another against his will by a breach of the peace, and then justify under a superior right or title.
    7. Same. — Nor can a private person, or legal officer, by the forms of law, obtain possession of property in the possession of another under the claim of ownership, and after getting possession under legal process, abandon the legal process and set up an independent superior title.
    8. Measure of damages. — A person who wrongfully takes property from the possession of 'another, against his will, is liable in damages to the full value of the property taken ; where peaceable possession is taken under color or claim of right, the damages for its detention or conversion is the actual damages sustained; and in the latter case, the defendant may set up a superior outstanding title in another, if he can connect himself with it
    9. Abstract charge. — A charge predicated upon an hypothesis not supported by any evidence in the cause, is abstract.
    10. Charge, misplacing the burden of proof.— In an action against a constable and his bondsmen for misfeasance in failing to return property levied upon in a detinue suit, to the defendant, upon failure of plaintiff to give a bond therefor, a charge which asks that if the evidence fails to reasonably satisfy the jury that the writ of detinue came into the hands of the constable before he seized the property in question, that their verdict should be for the defendant, misplaces the burden of proof.
    Appeal from Butler Circuit Court.
    Tried before the Hon. John P. Hubbaed.
    This action was brought by Samuel Parker and A. A. Kemp against Samuel A. Brunson, a constable, and the sureties on his official bond, and was commenced on the 20th of March, 1889. The complaint alleged that said Brunson was a constable for Beat No. 14, of Butler county, that on the 29th of January, 1889, one W. E. Larkin, as the assignee of Joseph Touart, brought an action of detinue before JohnE. Stoll, a justice of the peace of Beat 14, against the said Samuel Parker and A. A. Kemp, and having made affidavit and given bond, as required by law, a writ of deti-nue was issued by said justice and placed in the hands of the defendant, Brunson, to be levied on the following property, claimed by said Larkin, viz: a chestnut mare, Ehody, fifteen hogs, one log-cart, chain and fixtures; that said Brun-son, on the same day, levied said writ upon, and took into his possession, one log-cart, chain and fixtures, named in the complaint, that the defendants in that suit failed to re-plevy, and the plaintiff failed to execute a forthcoming bond within the time allowed by law, whereupon the defendants made demand upon said Brunson for a return of said property, but that he failed and refused to restore it, and the same was lost to them. The suit was for damages, laid at the value of the property alleged to have been thus lost to plaintiffs. Issue was taken on this complaint at the Spring Term, 1891, and there was a judgment in favor of the plaintiffs for $77.00. On the trial, the plaintiffs offered in evidence a copy of a bond, purporting to be the oficial bond of Samuel A. Brunson, as constable of Beat 14, Butler county. The defendants each separately objected to the introduction of this copy in evidence, (1), because it was secondary evidence ; (2), because it was inadmissible under the state of proof then before the court; (3), because it was illegal evidence ; (4), because the original, or a certified copy was the better evidence. Thereupon Powell, counsel for plaintiffs, stated that the paper was an exact copy of the recorded bond, and offered to get the original record. Counsel for defendants then offered to withdraw objection to its admission if Powell knew it was a correct copy; and, made no further objection. The plaintiffs offered in evidence what purported to be copies óf a detinue summons and pomplaint; there was evidence that they were true copies of the originals, which were shown to be lost or destroyed. The defendants objected to these being offered in evidence, on the same grounds urged against the copy of Brunson’s bond. Copies of the affidavit and bond in the detinue suit were offered and objected to in like manner, and on same grounds. Plaintiffs offered in evidence the docket of justice Stoll, relating to said detinue case, in his court. Among the entries on said docket, was one entered Peb. 25, which was as follows : “The plaintiff amends his complaint by striking out one log-cart, and chain, and one chestnut sorrel mare, named Bhody; and case continued;” afterwards, April 6, This entry appears on said justice’s .docket in said cause: “Motion to amend by striking off the entry as to levy on cart and fixtures. Motion granted.” The witness Parker, one of the plaintiffs, testified to the value of the property taken by Brunson, and the price it brought at a sale by him. This witness was asked by plaintiff’s counsel if any body forbade the sale of the cart at said sale ? This question was objected to by defendants on the grounds that it was illegal and irrelevant. The bill of exceptions states that it was excluded.
    The defendants offered in evidence a mortgage upon the property in controversy, executed by A. A. Kemp and Samuel Parker, tbe plaintiffs, to Joseph Touart, on tlie 3rd of September, 1888, and showed by a witness, W. W. Rye, that said witness was present with Brunson when the latter took possession of said cart, chain and fixtures, under said mortgage ; that Brunson had no other papers; that this was on the 23rd of January, 1889.
    The defendant, Brunson, testified, that he took the cart under the mortgage made by Parker and Kemp to Touart; that he did not take the cart, chain or fixtures under a writ of detinue; that the writ of detinue did not come into his hands until after he had taken the cart under the mortgage, and carried it to Georgiana; that the return on the writ of detinue was not made nor signed by him, but was made by the justice, Stoll, and had, upon his application, been amended; that, at the time Powell made demand on him, witness, for the cart, chain and fixtures, they were not in his possession, but had been turned over to Larkin, for whom he had taken them under the mortgage. The bill of exceptions states, that Larkin, was put on the stand as a witness for defendants, and his examination began just before the adjournment of the court, in the evening; that the next morning, another witness was examined, while said witness, Larkin, who was under the rule, remained in the court room, and heard the evidence of this other witness. That Larkin was about again to be examined by the defendants when the plaintiffs objected, and the court refused to allow him to be examined.
    There was other evidence offered by the plaintiff that Brunson called twice for the cart at the house of Parker and was told that he could not get it, that it was chained to a tree; that he called the third time and had with him a writ of detinue which he read to Mrs. Parker, Mr. Parker not being present, and took the cart loose from the tree and carried away the chains against the objection of Mrs. Parker.
    Many charges in writing were asked, both by the plaintiffs and the defendants. Among the charges asked and refused, and upon which errors are assigned, are the following, requested by the defendants:
    1. “The court charges the jury that, if they believe from the evidence that Brunson made an application to the court which issued the detinue writ to amend his return, and if they further find that upon such application, and after hearing the evidence on said application, such justice allowed such application, and allowed the constable to amend said return by striking out the entry as to levy on cart and fixtures, then they must find tbat sucb return, as amended, speaks tbe facts and tbe truth as to sucb transaction.”
    2. “Tbe court further instructs tbe jury, tbat tbe privilege which is given .to an officer to amend bis return, is upon tbe principle tbat tbe truth of tbe facts ought to appear of record, and tbe officer having been mistaken in regard to them ought to be permitted to amend bis return.”
    3. “Tbe court further charges tbe jury, tbat tbe statements of tbe written record of tbe justice, Stoll, is, in this case, conclusive, and can not be here contradicted, but should be considered by you as it appears in tbe writing of Justice Stoll.”
    4. “Tbe court further charges tbe jury, tbat if tbe evidence fails to reasonably satisfy you that the writ of detinue came into tbe bands of Brunson before be took tbe cart, your verdict should be for defendants.”
    6. “Tbe court further charges tbe jury, tbat tbe statements of tbe written record of Justice Stoll is conclusive as to what was done in tbe case before him, and when in said court tbe complaint was amended, and tbe log cart and chain . were stricken out, tbe log cart and chain were no longer in said suit, and tbe case stood as if tbe suit bad at first been brought without putting tbe log cart and chain therein.”
    8. “Tbe court further charges the jury, tbat if tbe plaintiffs have failed to satisfy you, with reasonable certainty, tbat defendant Brunson did not take tbe cart under tbe mortgage, your verdict should be for defendants.”
    9. “The court further instructs tbe jury, tbat if tbe plaintiffs have failed to show tbat within five days from the taking of tbe property Parker and Kemp failed to give bond for same, and further show tbat within ten days plaintiffs failed to give bond for same, then tbe plaintiffs can not recover.”
    10. “Tbe court further charges tbe jury, tbat tbe presumption of law is tbat tbe officer did bis duty, and this presumption is overcome only by clear and convincing proof that be did not do bis duty.”
    Each of these charges was refused; tbe defendants excepted, and upon this appeal assign tbe rulings of tbe court thereon as error.
    J. C. Richardson, for appellants.
    Gamble & Powell, for appellees.
   HARALSON, J.

1. Tbe objection to tbe introduction of tbe official bond of tbe constable, Samuel A. Bronson, was withdrawn by tbe defendant, as tbe record shows, and it was read without objection. After this, an assignment of error can not be predicated on its introduction.

2. Tbe affidavit, tbe detinue bond and tbe summons and complaint in the justice’s court, were competent evidence for tbe plaintiff, as their proof tended to establish the allegations of tbe complaint, and if not objectionable on other grounds, were properly allowed to be read.

Tbe objection to tbe affidavit and bond on tbe ground that copies and not tbe originals were produced, is not well taken, since tbe record shows tbe originals were read, tbe recital being, “Plaintiffs then offered in evidence tbe affidavit and bond in detinue in justice’s court.”

3. Tbe objection to tbe summons and complaint can not be sustained. Tbe bill of exceptions states, “There was evidence of tbe loss or destruction of tbe originals of said instruments, preliminary to their admission in evidence; and that they were correct copies of originals was also in evidence.” "What this evidence was we are not informed; but, if what is stated is true, tbe ruling admitting tbe copies in evidence was free from error. We are bound to presume there was sufficient evidence to sustain tbe ruling of tbe court.

4. D. M. Powell, one of plaintiff’s attorneys, testified as a witness, that tbe copies of tbe detinue, summons and complaint in tbe justice’s court, which were offered in evidence by tbe plaintiffs, were pencil copies made by him of the papers, which be received while be was attorney for Parker & Kemp, in tbe case before tbe justice, and that his recollection was that said copies were correct, copies of tbe papers be bad; that after be made copies tbe papers were used in tbe suit before J. S. Van Pelt, a justice of tbe peace, at Georgiana, and that after tbe suit be never saw them any more.

Tbe objection to tbe admission of this evidence was that it was illegal, not to its sufficiency. It was certainly legal as far as it went, in connection with other evidence, as tending to show tbe loss of tbe originals, and that tbe copies be was deposing to were correct copies. Besides, tbe bill of exceptions states that this witness gave other testimony as to the original detinue, summons and complaint without stating what it was.

5. Tbe exception on which tbe 5th assignment is based is groundless, because tbe question to tbe witness, Parker, objected to by defendants, does not appear to have been answered; but,'if answered, tbe bill of exceptions states, immediately following tbe reservation of tbe exception, — said evidence was afterwards excluded from tbe jury.

6. There was no error in refusing to allow tbe witness, Larkin, to be examined. He was placed under tbe rule and afterwards came into tbe court-room and listened to tbe evidence. It was a matter of discretion witb tbe court to allow bim, after tbis, to testify, or not, and its ruling on tbe subject is not a subject of review.'

7. We held in Gay v. Burgess, 59 Ala. 578, that, “A sheriff who has seized property under an order in a detinue suit, by express words of tbe statute, is bound on tbe expiration of ten days from tbe seizure, if tbe plaintiff in the detinue suit fails to take it into possession by tbe execution of a forthcoming bond, to restore it to tbe possession of the defendant (Code 1886, §§ 2717 (2942), 2718 (2943); Bell v. Perryman, 42 Ala. 122), and tbat tbe duty of obedience to the order of seizure, and of restoration, in tbe event of tbe failure to execute tbe forthcoming bond, are equally imperative, and are each official. A failure to perform either duty is a misfeasance, involving tbe sheriff and bis sureties on bis official bond in liability for tbe damages the party aggrieved may sustain.”

8. Tbe docket of tbe magistrate introduced in evidence, showed tbat tbe cause was continued from tbe 11th day of February, — tbe day on which tbe summons and complaint in detinue were returnable, — until tbe 25th of February (1889), on which date tbe following entry appears on said docket: “The plaintiff amends bis complaint, by striking out one log cart and chain and one sorrel mare, and case continued until tbe next term of court.” Tbe complaint contained other personal property besides tbat stricken out.

Tbe cause, as shown from tbe entries on tbe docket, was then continued until tbe 6th April, when tbe following entry appears: “Motion to amend by striking off tbe entry as to levy on cart and fixtures, granted.” This motion does not appear to have been made by tbe constable, and since no one has the right, generally, to make a motion in a cause, except one of tbe parties, in tbe absence of anything else, we would presume the plaintiff made it. Yet, it may have been done in tbe interest of tbe constable, and tbe proof tends to show tbat fact. Tbe complaint bad been amended by tbe plaintiff, as we have seen, by striking out tbe log cart and chain from it, and there remained nothing then for tbe levy, as to them, to rest on, and tbe cause stood in court without a complaint for, and a levy on, the property about which this suit is brought. The constable appears, so far as this present action is concerned, therefore, with no levy, as a matter of record, in the detinue cause. If the proof shows that he levied on the property, and made no return on the writ, it can not be allowed, as contended by defendant, that the plaintiff can not prove by parol evidence that the levy was in fact made. In Henley v. Rose, 76 Ala. 376, we said, “A defendant in attachment has no control over the return which the officer may make, and can not be prejudiced by his omission or neglect. The return is not conclusive as to any matters in respect to which it is silent. If a sheriff levies upon and seizes property, which he fails to mention in his return, the fact may be shown by extrinsic evidence, in a proceeding against the sheriff, in which the question of what property was actually levied on, is involved.”— Jefferson Co. Sav. Bank v. Eborn, 84 Ala. 535.

9. To recover under the complaint in this case it is necessary to sustain the averments as laid. The plaintiff must show the seizure of the property under the detinue writ, and the failure of the plaintiff in the detinue suit to give the bond, required by the statute to entitle him to the possession, and the failure of the constable to restore the property to plaintiff. In this form of action, the burden is on the plaintiff to show the breach of the condition of the constable’s bond as averred in the complaint. Failing to meet the burden, the plaintiff can not recover. It would be different, if plaintiff had sued in detinue or trover, or for a bare tress-pass. In this action, proof -of actual possession or ownership and the right of immediate possession, and the seizure of the property by the constable, would have authorized a recovery, and the burden would have rested upon the constable, to justify the seizure and retention of the property.

The defendant contends that he took peaceable possession of the property before the writ in' detinue came to his hands, for and as the agent of one Larkin, who held a valid mortgage upon it, and that he delivered it to the mortgagee. If the jury are satisfied of the truth of this contention, plaintiff has not only failed to make the necessary proof, but defendant has affirmatively shown a defense and justification. The jury must determine the disputed facts. If the constable seized the property under a writ of detinue, having thus obtained possession, he would not be permitted to turn it over to the mortgagee. No man can obtain possession of property in the actual possession of another, against his will, by a breach of the peace, and then justify under a superior right or title. Public interest will not tolerate such conduct.—Street v. Sinclair, 71 Ala. 110; Thornton v. Cockran, 51 Ala. 415.

Neither can a private person or legal officer, by the forms of law, to which every citizen must submit, obtain possession of property in the possession of another under a claim of ownership, and having used the process of the law to acquire possession, abandon the legal process and set up an independent superior title. The law will not allow its process to be abused for such purposes. And the same rule applies where possession is obtained by artifice and fraud. Any person who thus deprives another of the possession is guilty of a wrong, and must either restore the property to him from whom taken, or -answer in damages for its full value.—Gay v. Burgess, 59 Ala. supra; Ex parte Hurn, 92 Ala. 102. A different rule as to'the measure of damages applies where one obtains the peaceable possession of the property of another, under some color or claim of right, and detains it or converts it to his own use, against one who has a prior right. In the latter case, the measure of .damages is the actual damage sustained.—Wilson v. Strobach, 59 Ala. 488; Williams v. Brassell, 51 Ala. 297; Pollack v. Harmon, —Ala. —; Draper, Mathis & Co. v. Walker, Teague & Co., 98 Ala. 310. A defendant when sued for a tort under these latter conditions, may set up an outstanding title superior to the plaintiff, if he can properly connect himself with it.— Marks v. Robinson, 82 Ala. 78; Gardner v. Morrison, 12 Ala. 547; Draper, Mathis & Co. v. Walker, Teague & Co., supra; 3 Brick. Dig. p. 776, p. 5. There are some decisions apparently conflicting, but which we think may be reconciled on these principles, and which are believed to be sound. Except where exemplary damages or smart money is recoverable, the actual damage as a general rule, should measure the extent of recovery. But the law will not tolerate a violation of the public peace, or a fraudulent resort to legal process, or fraud, or artifice to get an undue advantage over one who submits to its mandates. He who thus denes and disregards the law, or obtains an advantage by fraud, can not defend, but must make full restitution.

10. Applying the foregoing principles to the charges given and refused, to which exceptions were reserved, and many of them disappear. The six given for the plaintiff, state the law correctly; and, for the same reason they were properly given, No. 9 asked by defendant was properly refused, and besides, it misplaces the burden of proof. All those asked by defendant except the 5th and 7th -were properly refused. No. 1 is abstract. The return as amended is silent, and does not speak any thing as to the property in question, and it was competent for plaintiff to show the levy under the writ. Nos. 2 and 3 are abstract and misleading. Nos. 4 and 8, each, misplace the burden of proof. No. 6 states no reason why the plaintiff should not recover, and denies the right of plaintiff to show that the log cart and chain were in fact levied on and seized by the constable. No. 10 is misleading.

11. There was evidence tending to show, that the writ of detinue was not placed in the hands of the constable Brun-son, before he took the cart and fixtures, and that he did not take them under said writ, but under a mortgage, and that said writ came into his hands, after he took possession of said property. Under the averments of the complaint, it was incumbent on the plaintiffs to show,' as we have before stated, that the property was taken by Brunson as constable, under said writ, and detinue bonds not having been given as required by statute, was not returned to him. Whether he did or not, was a question of disputed fact, proper for the determination of the jury, and if the facts hypothesized in charges 5 and 7 were true, the plaintiffs were not entitled to recover. The refusal to give them was error, and the cause must be reversed on that account.

Beversed and remanded.  