
    Bryan v. Kelly.
    
      Action on Constables Official Bond.
    
    1. Constable’s official bond; validity, and how impeached. — The official bond of a constable, which only recites that he “was required to give a new bond,” not stating or showing by what authority, is ordinarily regarded as voluntary and gratuitous; yet, in an action against him and his sureties, founded on it, its execution not being denied by plea verified by affidavit, nor its consideration impeached by plea, it is competent and admissible as evidence.
    
      2. Admission of principal, as evidence against him and his sureties. In an action on an official bond, against the principal and his sureties, an admission by him being competent evidence against him, the better practice would be to thus limit its operation when offered and admitted; but, this not being done, the sureties can only protect themselves by a charge to the jury limiting its operation and effect.
    3. Claim of exemption, delivered to constable or his wife. — A claim of exemption to property, on which an attachment has been levied by a constable, being delivered by the defendant, during the officer’s absence from home, to his wife, with a request to deliver it to her husband; she becomes the defendant’s agent to deliver it, and a delivery by her to her husband is equivalent to a delivery to the officer by the defendant in person.
    4. Claim of exemption; when officer may disregard. — A claim qf exemption, for property on which an attachment halt been levied, may be disregarded by the officer, when the writ shows on its face that the claim is frivolous, and can not prevail against the plaintiff’s demand; but he can not look beyond the writ itself to ascertain the facts.
    5. Landlord’s lien, as against claim of exemption; attachment against crop, or against estate generally. — A landlord’s lien on the tenant’s crops, for rent and advances, is superior to all other liens (Code, § 3056), and must prevail against a claim of exemption; and an attachment issued against the tenant’s estaie generally, but founded on an affidavit which states a statutory ground for an attachment against the crops, and levied on the crops only, though irregular, is sufficient to enforce the landlord’s lien, not having been abated.
    6. Action on constable’s official'bond, for selling property claimed as exempt. — An action for damages can not be maintained against a constable and the sureties on his official bond, on account of his sale of property under the levy of an attachment, in disregard of a claim of exemption which was lodged with him, when it appears that the claim was unfounded, that the property was in fact subject to the process, and the proceeds of sale were applied to the payment of the debt; and for the purpose of showing these facts, the papers in the attachment suit are admissible as evidence, the affidavit being the initial step.
    Appeal from the Circuit Court of Cullman.
    Tried before tbe Hon. H. C. Speake.
    This action was brought by John W. Kelly, against W. R. Bryan and the sureties on his official bond as constable; and was commenced on the 11th of December, 1885. The bond, which was set out in the complaint, was dated November 26th, 1885, and approved November 28th; recited that said Bryan, as constable, “was required on the 18th of November, 1885, to give a new bond as such constable;” and was conditioned for the faithful discharge of his duties, as required by law. One of the breaches of the bond assigned in the complaint, and the only one it is necessary to notice, was, that said Bryan, while acting as constable, on or about November 5th, 1885, levied an attachment at the suit of Wliarton & Brittain, against the estate of.plaintiff, on a quantity of cotton, corn and fodder, advertised the same for sale under the levy, and sold the property on or about November 30th, to satisfy the. writ; “that after said levy, and before the day of sale, plaintiff lodged with said Bryan, as constable, his declaration and claim of exemption to said property, which had been sworn to and duly recorded; and that said Bryan, as constable, disregarding said claim of exemption, sold said property so levied on, to plaintiff’s damage.” The defendants demurred to this breach as assigned, “because it fails to show any wrong or injury in said sale by the constable, notwithstanding said claim or declaration;” and they also demurred to the complaint, “because it does not state or show that the bond sued on was an official bond, or that the same was taken, approved or filed under any authority of law.” The court overruled the demurrer, and the cause was tried on issue joined on the plea of “not guilty,” resulting, under the rulings of the court, in a verdict and judgment for plaintiff, for $194.70.
    On the trial, as the bill of exceptions shows, the plaintiff having offered in evidence the bond on which the action was founded, the defendants objected to its admission as evidence, “on the ground thát it showed on its face it was taken without authority of law, and did not show, nor was it shown by other evidence, why or by what authority said new bond was required of said Bryan as constable.” The court overruled the objections, and admitted the bond as evidence; and the defendants excepted. The plaintiff then read in evidence the attachment at the suit of Wharton & Brittain, with its levy on the cotton, corn and fodder specified, and proved the sale of the property by the constable on the 30th November, 1885. The attachment was issued by a justice of the peace, on the 17th October, 1885, recited that the plaintiffs in attachment had complained on oath that John W. Nelly was indebted to them in the amount of $90.50, and had made oath “that said Nelly is about to remove the crop from the premises by them rented to him for the year 1885”, and commanded a levy of the defendant’s estate generally. The plaintiff then offered in evidence a certified copy of his declaration and claim of exemption, which he had made and filed in the office of the probate judge of the county on the 18th November, 1885; and testified, “that after making out and filing said claim of exemption, and on the day after it was made, he went with it to the house of said Bryan, but found. Mm away from borne, and left it witb bis wife, witb a request tbat be band it to said Bryan, ber bus-band; and tbat on tbe next day be saw said Bryan, wbo told bim tbat be bad received said claim. To tbe admission of tbis evidence, as to a declaration by said Bryan tbat be bad received said claim, eacb of tbe defendants severally and separately objected,” and excepted to tbe overruling of tbeir objections.
    Tbe defendants tben offered in evidence tbe affidavit and bond on wbicb tbe attachment was issued; but they were excluded by tbe court, on objection by tbe plaintiff, and tbe defendants excepted. Tbe affidavit was made by Isaac M. Wbarton, one of tbe plaintiffs in attachment, and stated “tbat be and M. P. Brittain are just owners of tbe following lands in said county,” describing them; “and tbat under a contract of renting said lands for tbe year 1885, which contract is in substance as follows: said Wbarton & Brittain were to furnish tbe lands, and John Kelly was to furnish tbe teams and labor to cultivate tbe same, and said Wbarton & Brittain furnished said Kelly witb advances, consisting of money and other things of value, for tbe sustenance and well-being of said Kelly’s family, and witb implements to be used in cultivating the crop to be grown on said lands during said year; for wbicb said Kelly agreed to pay said Wharton & Brittain tbe amount of $90.50; and affiant further states that be has good cause to believe, and does believe, that said Kelly is about to remove said crop from tbe premises, without paying for said rent and advances; and tbat tbis attachment is not sued out for tbe purpose of vexing or harassing said Kelly.”
    “At tbis stage of tbe cause,” tbe bill of exceptions states, “the defendants moved tbe court to exclude from tbe jury as evidence the said declaration and claim of exemption, because tbe evidence does not show tbat it was lodged by tbe plaintiff, bis agent or attorney, witb tbe officer wbo made tbe levy; and because no notice was given to said Wbarton & Brittain, tbat tbe same was lodged witb tbe officer within three days, as required by law.” Tbe court overruled tbis motion, and tbe defendants excepted. Tbe court charged tbe jury, in tbis connection, “tbat if plaintiff’s claim of exemption was delivered by bim to Bryan’s wife, with tbe request tbat she would deliver it to ber husband, and she delivered it to bim; tbis would be, within tbe meaning of tbe law, a sufficient lodgment with the officer making the levy.” To this charge the defendants excepted.
    The defendants requested the following charges to the jury, and duly excepted to the refusal of each: (1.) “If tbe jury believe tbe evidence, they must find for the defendants.” (2.) “If tbe jury believe tbe evidence, they must find a verdict in favor of tbe defendants who are sureties on Bryan’s said bond. (3.) “If tbe jury find from tbe evidence that plaintiff’s claim of exemption was lodged with tbe wife of said Bryan, tbe constable making tbe levy on tbe property, and was not lodged with tbe officer by tbe plaintiff, bis agent or attorney; then tbe making of tbe claim, and leaving it with tbe wife of the officer, would not put tbe officer in tbe wrong in making tbe levy and sale, and plaintiff would have norightto recoverin this case.” (4.) “If the jury find from tbe evidence that tbe writ of attachment was issued to enforce a landlord’s lien on tbe property levied on; then it was not necessary for said Bryan, tbe constable, to regard tbe claim of exemption, and bis sale, of tbe property under tbe attachment would be no violation .of plaintiff’s rights.”
    All the rulings above-stated are now assigned as error.
    Gbo. H. Parker, for appellants.
    W. T. L. Ooi’ER, contra.
    
   CLOPTON, J.

A writ of attachment was issued by a justice of tbe peace in favor of Wharton & Brittain against the estate of plaintiff, and was levied by appellant Bryant, as constable, on personal property of tbe defendant in attachment, which was removed from tbe premises, and after-wards sold by tbe constable. After tbe levy, and before tbe sale, plaintiff filed in tbe office of tbe judge of probate a declaration and claim of exemption, and, as be alleges, filed tbe same with tbe officer making tbe levy. Tbe action is brought by tbe plaintiff on tbe official bond of tbe constable, against him and bis sureties; and tbe only breach assigned, in respect to which any evidence was introduced, is, that tbe constable disregarded tbe claim of exemption, and sold tbe property. Tbe other breach is, that tbe constable refused to accept a replevy bond which was tendered by plaintiff; but no evidence was introduced to show that such bond was tendered, and no question arises on that breach.

The question in regard to the validity of the bond was raised by objections to its introduction in evidence, the specific grounds of objection being, that it shows on its face that it was taken without authority of law, and it is not shown by what authority it was required. The bond recites, that the constable was required to give a new bond, and it is set forth in the complaint as the foundation of the action, and purports to be signed by the defendants. Though an official bond, executed without statutory requirement as a condition precedent to entering into, or continuing in the office, is ordinarily regarded as voluntarily and gratuitous; when it is set forth in the complaint as the foundation of the action, and purports to be executed by the defendants, and its consideration is not impeached by plea, nor its execution denied by verified plea, it may be properly admitted in evidence to go before the jury. There is no plea impeaching the consideration of the bond, or denying its execution. — Code, 1886, §§ 2769, 2770; Johnston v. Caffey, 59 Ala. 336.

The declaration and claim of exemption was filed in the office of the judge of probate, November 18, 1885. The plaintiff: testified, that on the next day he went to the home of. the constable, and, finding him absent, gave the claim to his wife, and requested her to deliver it to him, and that the constable afterwards admitted that he had received it. Defendants severally objected to the admission of the constable being received in evidence. It was clearly competent as an admission against himself, even if it be conceded that it is not admissible against his sureties. In such case, it would be the better practice, to limit the operation of the evidence when received; but, this not being done, a co-defendant’s only remedy is by a charge, limiting and confining its effect and operation to the defendant making the admission. — Lewis v. Lee Co., 66 Ala. 480.

Section 2521 of the Code of 1886 provides, that “the defendant in person, or by his agent or attorney, may, at any time after the levy, and prior to the sale, file with the officer making the levy a claim in writing verified by oath.” If the evidence be believed, the wife of the constable became the agent of the plaintiff to deliver the claim of exemption; and if actually delivered by her to the constable, it was, in the meaning of the statute, filed with the officer making the levy, by the agent of the defendant in attachment.

The attachment was issued October 17, 1885, and was levied on the fifth day of November thereafter. The claim of exemption was filed with the officer November 19, 1885, and the bond sued on was approved November 28th, 1885. The property was sold two days thereafter. It is manifest that the plaintiff is not entitled to recover on the bond any damage suffered from any act of the constable prior to the approval of the bond, from which time, under the statute, it took effect. — Code, 1886, § 189.

The material question in the case is, whether the constable was authorized to sell the property, in disregard of the claim of exemption; and if not authorized, what damage did the sale cause the plaintiff? The question arises on the exclusion of the affidavit, on which the attachment issued, when offered in evidence by the defendants, the plaintiffs having previously introduced in evidence the attachment itself. In McLaren v. Anderson, 81 Ala. 106, the question arose on a proceeding to set aside a sale of a homestead under an execution. It was held, that a sheriff could not inquire behind the face of the process in his hands, and determine for himself that the judgment rests on a cause of action against which the homestead exemption is unavailing. But it is also said: “If the judgment and execution had disclosed on their face that the recovery was for a tort, it would have been the duty of the sheriff to disregard the claim as frivolous, and to proceed and make the sale. The execution, however, gave him no such information. It could not do so without going beyond the judgment-entry, which the clerk was not authorized to do.”

The writ of attachment is very informal and irregular. It does not state that the amount claimed to be due is for rent and advances, nor any statutory ground on which an attachment is authorized to issue for the enforcement of a landlord’s lien, and is issued generally against the estate of the defendant. Had it described or recited the substantive averments of the affidavit on which it issued, and had it been issued against the crops grown on the rented premises, so as to show its ' nature, the constable would have been authorized to disregard the claim of exemption. — Ex parte Barnes, 84 Ala. 540. The attachment fails to describe the affidavit with sufficient fullness to authorize the constable to look beyond it to the affidavit.

In considering the question of injury, it should be observed, that this is an action brought by a party claiming to be aggrieved by the sale of his property, on an official bond, against the principal and his sureties. To entitle the plaintiff to recover, he must, under the statute prescribing the extent of the obligation of the bond on the principal and sureties, show injury, either by a wrongful act of the constable committed under color of his office, or by his failure to perform, or the improper performance or neglectful performance of some duty imposed by law. — Code, 1886, § 273. The attachment is not void. Though issued against the estate of the tenant generally, it is merely irregular; and' having been levied on the crops only, and not having been abated, is capable of enforcing the landlord’s lien. — Ellis v. Martin, 60 Ala. 394. It is well settled, that the lien of a landlord for rent and advances is superior to all other liens, and will prevail against a claim of exemption, as regards the crops grown on the rented premises. — Ex parts Barnes, supra. The declaration of exemption not only makes a general claim, but also recites the attachment and its levy, and claims the property levied on as exempt particularly from the attachment. If the relation of landlord and tenant in fact existed between the plaintiffs and defendant in the attachment, and the indebtedness is for rent and advances, and the attachment was issued for the enforcement of the landlord’s lien, and the crops levied on were grown on the rented premises, they are subject to the attachment, and the claim of exemption is frivolous and unavailing. If these substantive facts, when appearing on the face of the process, authorize the officer to disregard the claim of exemption, they also, when established by reference to the affidavit and ether evidence, in an action on his bond, make manifest that his disregard of the claim could work no injury to the plaintiff, his property having been sold for the payment of a debt which was a paramount lien. This is on the same principle that a sheriff, when sued on his official bond, for failure to make the money on an execution, may show in defense that the property of the judgment debtor is incumbered by mortgage or other lien, superior to the lien of the execution, to an amount in excess of its value, and in consequence the plaintiff has sustained no injury.' — Abbott, v. Gillespy, 75 Ala. 180; Wilson v. Strobach, 59 Ala. 488. A disregard of a claim of exemption, by selling the property in satisfaction of a lien which prevails against it, when the claim is, in law and fact, frivolous and unavailing, is not of the classes of breaches of the official bond, which entitles the party to recover nominal in the absence of proof of actual damages, such as failing to return an execution, as required by law, or to perform like duties. For tbe purpose of showing tbat the plaintiff bad not been injured by tbe sale of tbe crops, it was permissible for tbe defendants to prove tbat tbe attachment was in fact issued for tbe enforcement of a valid and subsisting landlord’s lien; and as tbe initial step, tbe affidavit was admissible to show its nature, and tbe ground on wbicb it issued. We presume it was properly identified, as tbe bill of exceptions recites, in terms, that it was tbe affidavit on wbicb tbe attachment was based.

Tbe court did not err in tbe charges given and refused. Charge numbered five, requested by defendants, asserts a correct proposition of law, but there was no evidence before tbe jury on wbicb to base it. For tbe error mentioned, tbe judgment is reversed, and cause remanded.  