
    ANDRESS vs. BROUGHTON.
    1. A bill of exceptions -will be construed most strongly against the party excepting.
    2. when the bill of exceptions sets out several distinct charges and refusals to charge on request, and concludes with the words, “ to which defendant excepted,” the exception will be construed to apply only to the charge and refusal contained in the paragraph immediately preceding it.
    3. When an execution comes to the hands of a sheriif after the expiration of his term of office, he has no more authority to levy it than any other private individual ; and if he levies upon and sells the defendant’s property by virtue of it, he is liable in trover or trespass.
    4. In such case, the defendant will not be held to have waived the tort, by being present at the sale and asking a postponement of it, and by requesting the sheriff not to pay over the money arising therefrom to the plaintiff in execu. tion, when it is not shown that he was aware of the want of authority on the part of the sheriff.
    Error to the Circuit Court of Monroe.
    Tried before the Hon. JOHN Bragg.
    Trover by Broughton against Andress. The bill of exceptions first sets out the substance of the evidence, for which see the opinion, and then the charges of the court, in the following language:
    
      “ And the court charged the jury, that this request was not such evidence of the waiver of the tort, as to prevent the plaintiff from bringing this action of trover; and the defendant asked the court to charge the jury, that if Broughton agreed to take the money arising from the sale, he cannot maintain this action. But the court refused to give the charge asked for; but charged the jury, that if the plaintiff agreed to take the money, and it was tendered or paid to him, then he could not maintain this action.
    “ And the defendant asked the court to charge the jury, that if the plaintiff ever requested the defendant not to pay over the money arising from the sale, it is a circumstance from which the jury might infer that plaintiff admitted that the slave was properly sold, and further, that he thereby waived the tort and looked to the money: which charge as asked the court refused to give, but charged the jury, that the proof as made was not such evidence of a waiver of the tort as to preclude the plaintiff from maintaining this action.
    “ And the defendant further asked the court to charge the jury, that if plaintiff requested defendant not to pay.overtke money received on sale of July, the jury might infer that the plaintiff looked to the money alone to be his, dependent upon the right of the Bank; which charge the court refused, but charged the jury, that if Andress received the execution after his term of office expired, he had no more right to act under it than any other private individual; and if he had acted under it, and sold the property of plaintiff, he was liable in this action, and plaintiff had not lost his right to resort to it by what was shown by the proof to have passed between them.
    “To which defendant excepted; whereupon,” &c.
    The errors assigned are :
    1. The court erred in giving the charges shown in the bill of exceptions;
    2. In refusing to give the charges as shown by the bill of exceptions;
    3. In giving the qualifications to the charges asked;
    4. In rendering judgment for the defendant in error.
    Watts, Judge & JacksoN, for plaintiff in error:
    1. The bill of exceptions shows that the plaintiff in error excepted to the charges given, and also the refusal to give the charges asked. The language used at the end of the bill of exceptions will apply to all the charges given, and to those refused. See Fletcher v. Weisman, 1 Ala., 602. It may be asked, why were the charges asked and those given inserted in the bill of exceptions, if they were not excepted to ?
    2. The judge undertook to decide what was proved and what it ought to weigh, in the first charge given, and thereby usurped the province of the jury.
    3. The charge asked under the third head in the bill of exceptions was a proper one, and ought to have been given; and the court erred in refusing to give it as asked. The qualification given under the same head was certainly assuming to judge of what the whole testimony proved. This should have been left to the jury. And the affirmative charge given by tbe court under the fourth point in the bill of exceptions is objectionable for the same reason.
    4. The facts proven, viz: that Andress requested twice a postponement of the sale; that he was present at the sale, making no objections; that he afterwards requested the sheriff to hold the money until he could see whether he had paid the debt; that the sheriff had so held the money, are facts which show that no trespass had been committed; or, if committed at all, had been waived by the defendant in error; vohntincm, fit injuria. Broughton consented to the sale, and his request to Andress to retain the money, which Andress did in obedience to his request, at most, only authorized assumpsit to be brought for the price brought at such sale.
    It certainly was not necessary, as seems to have been supposed by the circuit.judge, for Andress to tender the money to Broughton. It was rather Broughton’s duty to demand the money of the sheriff.
    WILLIAMS & CooKE, contra:
    
    1. The bill of exceptions is construed most strongly against the party excepting. 6 Ala., 801. It is not enough, therefore, to ask charges and make objections; the opinion of the court must be excepted to. Bank v. McDade, 4 For., 252, vide page 265 ; Milton v. Rowland, 11 Ala., 740.
    2. What is a waiver, where the facts are undisputed, is a question of law. Hill v. Hobert, 4 Shepley, 168; 16 Maine Rep., 168
    6. A waiver is an estoppel, and some act must be done by the party resulting in injury or loss to the adverse party. Assignees of Pittee v. Sparrow, 7 Barn. & Ores., 310, 14 E. 0. L. R., 50; Brewer v. Brewer & Logan, 19 Ala., 482.
    4. Andress, the plaintiff in error, was a trespasser cib initio; and the record does not show that defendant in error had any knowledge he was no sheriff, and Andress is not injured by any acts of plaintiff below.
   PHELAN, J.

— This was an action of trover, brought by Broughton against Andress to recover the value of a slave named July.

There was evidence “ tending to prove” that Andress, who was sheriff of Monroe from 1848 to 1846, in August of tbe latter year, and a few days after bis term of office bad expired, received an execution in favor of tbe Bank of tbe State of Alabama against tbe plaintiff, and levied it on tbe slave in question, and finally sold bim under it in December, 1846 ; that while Andress bad this execution in band, be was requested by plaintiff to postpone tbe sale twice, that he might obtain evidence from Tuskaloosa to show that tbe debt was paid; that plaintiff was present at tbe sale; that after tbe sale, and in December, 1846, plaintiff requested Andress not to pay over the money received from tbe sale of said slave to tbe Bank; and that Andress bad never paid over tbe money to tbe Bank or plaintiff, but still bolds it.

Tbe court was requested by tbe counsel for tbe defendant to give several charges, wbicb were refused, and other charges, different from those requested, were given by tbe court; but there was no exception taken to them.

Tbe bill of exceptions then contains tbe following as its closing portion: “ And tbe defendant further asked the court to charge tbe jury, that if plaintiff requested defendant not to pay over tbe money received on sale of July, tbe jury might infer that tbe plaintiff looked to tbe money alone to be bis, dependent upon tbe right of tbe Bank'; which charge tbe court refused, but charged tbe jury, that if Andress received tbe execution after bis term of office expired, be bad no more right to act under it than any other private individual; and if be bad acted under it, and sold tbe property of plaintiff, be was liable in this action, and tbe plaintiff bad not lost bis right to resort to it by what was shown by tbe proof to have passed between them. To wbicb defendant excepted; whereupon, this bill of exceptions is sealed,” &c.

We can only notice tbe charge wbicb was refused, and that wbicb was given, contained in tbe paragraph immediately preceding tbe exception. Tbe words, “to wbicb defendant excepted,” bydbe ordinary rules of .construction, can only apply properly to tbe matter of tbe independent paragraph in immediate connection with them; — their immediate antecedent. To say that tbe pronoun “wbicb” shall have four or five separate charges and refusals to charge, spread over more than a page, as its antecedent, would not be correct according to any rule of criticism. But tbe rule of construction applied to bills of exceptions as against tbe party excepting, is a strict rule; it is, that they shall be construed most strongly against tbe party excepting. 4 Por., 252 ; 11 Ala.; 15 Ala., 18 ; 6 Ala., 801. Under this rule, we cannot bold that any exception is taken, except to tbe refusal to charge and tbe charge given contained in tbe paragraph immediately preceding tbe exception.

Tbe rule of law stated by the court, that if Andress received tbe Bank execution after tbe expiration of bis term of office, it conferred no authority whatever on him to levy upon and sell tbe property of plaintiff, is correct. After tbe expiration of bis term of office, be became, as to new writs, a mere private individual, and final process coming to bis bands, directed to tbe sheriff, conferred no authority on him for its execution. He bad no more right to sell tbe plaintiff’s slave after that time, by virtue of an execution then first delivered to him, than if no such process bad existed. Cutbbert v. Tardy, decided at this term. So far as tbe rights of tbe plaintiff were concerned, be was a mere trespasser. Peck v. Holcombe, 3 Por., 329.

In an action between third persons, tbe acts of an officer de facto may often have validity, because be acts under color of authority. 7 Ala., 535. But in an action against tbe officer himself, tbe lawfulness of his action must depend upon bis actual right to exercise tbe power which is claimed. He must be an officer de jure, and armed with a lawful precept. 7 Ala., 578. If be sells under process before or after tbe time prescribed by law, (4 John., 450 ;) if be levies process out of bis county, although be may sell it within, (3 Dana, 489 ;) be is liable to trespass at the suit of tbe injured party. "When sued in trover or trespass, an officer, to justffy, must show a process valid in law, and that be executed it pursuant to law. It is true, if be levies an execution, not valid, or not at a proper time, upon tbe goods of tbe defendant, be may show in mitigation of damages that tbe money has been paid in satisfaction of judgment against tbe plaintiff, but in mitigation only. 6 Mass., 20; 4 Harrington, 303.

It nowhere appears from tbe bill of exceptions, that tbe plaintiff was aware of this tort, at tbe time be requested tbe defendant to postpone tbe sale and not to pay over tbe money. Even then, if these things could conduce to show that he had waived the tort, had it been also shown that he knew defendant had no authority to sell, it will not do to hold, that ho waived a tort of which he was in fact ignorant at the time. It must always appear that a man has knowledge of a thing, before he can be construed to act in reference to it. So here, as it is nowhere shown that plaintiff knew that the process under which defendant sold his slave gave him no lawful authority to make that sale, his being present at the sale, his asking a postponement of it, or that defendant would delay paying over the money to the Bank, cannot show, nor conduce to show, a waiver of the tort on the part of the plaintiff.

We find no error in the charge qf the court, and the judgment is affirmed.  