
    Lavretta v. Holcombe.
    
      Action against Sheriff for Failure to Blake Money on a Ven-ditioni Exponas.
    
    1. Section 2963 of Code construed. — Under Oode, § 2863, which provides that ‘‘when a doubt exists as to the title oí the defendant to personal property which the sheriff is required to levy upon, he may demand indemnity from the plaintiffthe sheriff who has levied an attachment may afterwards demand an indemnity before proceeding to sell it.
    2. Section 2905 of Code construed; when sheriff may require indemnity. Code, § 2905, which provides that “when a reasonable doubt exists whether property levied on .belongs to the defendant the sheriff may require a bond of indemnity, and if it is not given he may restore the property,” applies as well to the case of a sheriff acting under a writ of venditioni exponas as under a writ of execution.
    3. When immaterial whether plaintiff is an incorporation or a mere association. — Where in an action against a sheriff for not executing a writ'of venditioni exponas, the sheriff attempts to show that the property was claimed by a certain club, it is immaterial whether such club was a corporation or a voluntary association, since in either capacity it might own the property.
    
      4. Evidence of voluntary association; when can not he objected to. 
      Where the plaintiU has had evidence as to the incorporation of the club excluded, he can not object to proof of its being a voluntary association.
    5. Proof of character of club. — In order to prove the character of the club as a voluntary association,it is proper for a witness to testify that he had been elected president of the club, and had acted as such president.
    6. liow private, papier proved. — An affidavit presented by the club to the sheriff for the purpose of informing him of its title, may be proved by the testimony of the affiant, since it is a mere private paper not required by law to be made, and not the foundation of any claim involved in the suit.
    Appeal from the City Court of Mobile.
    Tried before the Hon. O. J. Semmes.
    This was a suit by John L. Lavretta to recover of "Wm. H. Holcombe, the sheriff of Mobile county, the amount remaining unpaid on a venditioni exponas, which was placed in his hands for collection, and which was issued in an attachment suit brought by the said Lavretta against one Moraquez, his tenant. The complaint alleged that the sheriff had levied upon sufficient property to satisfy the claim, and had illegally discharged from the levy some portion thereof, leaving an unsatisfied balance due the plaintiff. It was shown that the sheriff had levied an attachment upon certain property found in the building occupied by said Maraquez, and which, under one' aspect of the evidence, belonged to him at the time he leased the premises from Lavretta, but which he subsequently sold to the El Gosmopolitano Social and Literary Club. After the sheriff bad taken the property under the attachment writ, but before a sale, he was notified that some of the property levied upon was claimed by said club. He thereupon made demand upon the plaintiff, Lavretta, for an indemnifying bond as to that part of the property, and upon Lavretta’s failure to give the bond, the property claimed by the club was released.
    The defendant filed a number of pleas all of which, with varying phraseology, set up that after he had levied on the property and was about to sell under the writ in his hands, a portion of the property was claimed by affidavit as the property of the Cosmopolitano Club, and that he had a reasonable doubt whether said property was subject to said levy, and that he had therefore demanded an indemnifying bond from the plaintiff, which was refused. To these pleas the plaintiff demurred. The demurrers were overruled, and this action of the court is the chief ground of error assigned in this court. Other questions arose on the trial, alluded to in the opinion of the court, which are unimportant in the view of the case taken by this court.
    
      Gregory, L. & H. T. Smith, for appellants.
    The statutes of Alabama have undertaken to create an entire and distinct system of attachment proceedings and to deal with tbe entire subject, and therefore to supercede and repeal all common law and ancient customs in regard thereto. — -Souther-land on State Const., sec. 164, et seq. Whether, therefore, the sheriff is, or is not, entitled to .demand indemnity after he has levied an attachment upon property, but before he makes a sale of it, must depend upon the terms of our statute upon that subject. The statute provides that, “when a doubt exists as to the title of the defendant to personal property which the sheriff is required to levy upon, he may demand indemnity from the plaintiff.” — Code of 1886, section 2963. Nothing whatever is said about his demanding indemnity when a doubt arises after the levy has been made. The mention of the one instance in which an indemnifying bond may be demanded, by implication excludes all others. This is not a case of an unintentional omission in the statute, for, as early as 1824, and from that day to this, it has been, and is, expressly provided that when a doubt arises either before or after the levy of an execution, the sheriff may demand a bond of indemnity before proceeding with the levy, or with the sale, as the case may be. — Code of 1886, section 2905. Originally, the statute relating to executions, allowed the demand for indemnity to be made at any time after levy, but made no provision for a demand before levy, (see Toul-min’s Digest), but it was subsequently changed to cover both cases. A good reason may, or may not, exist for the difference of the statute in regard to the two cases, but that the difference exists cannot be denied. The law is so written by the legislature, and it is not for the courts to change it. There is a difference between the commencement of an attachment suit, and the commencement of a suit by summons and complaint deduced by the courts not from the exact language of the statute, but from the nature of the remedies. It is in the venue of the suit. The statute providing that no person shall be sued outside of the county of his residence, held not to apply to a suit commencing by attachment. — Herndon v. Givens, 16 Ala. 261.
    The court allowed a witness to testify that he had been elected president of the association by the minutes of the club. These minutes were the best evidence of their contents, and were not shown to be lost, destroyed, or beyond the jurisdiction of the court, and secondary evidence of their contents was not admissible. — 3 Brick. Dig. 439, 486. A witness was further allowed to prove the execution of an affidavit by bimself, and by proof of the handwriting of another. The affidavit was not one authorized by law, but was intended merely as a private memorandum of the notice given to the sheriff of a claim of ownership of property. It purported to be sworn to before a justice of the peace, and by him certified. This certificate constituted the justice of the peace a subscribing witness to the execution of the notice. — Sharpe v. Orme, 61 Ala. 263; Rogers v. Adams, 66 Ala. 600. And where a private paper is executed before a subscribing witness, execution cannot be proven by any other-witness, unless it be first shown that the subscribing wit7 ness is dead, or out of the jurisdiction of the court. — Ellison v. Stale, 69 Ala. 1; Patterson v. Kicker, 72 Ala. 406; Jonhs v. Terrell, 73 Ala. 238; Asketo v. Steiner, 76 Ala. 218.
    Clark & Clark, for appellees.
    1. The only question to be decided in this case is the right of the sheriff to have demanded an indemnifying bond under the circumstances shown in the bill of exceptions, and on the failure of plaintiff for ten days to give the same to discharge the levy upon the property claimed by other parties, and as to the title of the defendant he had a reasonable doubt.
    The sheriff was justified in his action by both sections 2905 and 2963 of the Code of Alabama. These sections while differing in phraseology, are essentially the same in effect.— Ogden v. Poiocll, 7 Ala. 243; Betancourt v. Eberlin, 71 Ala. 461; BurriH’s Law Diet., “Execution;” Bouvier’s Law Diet. “Yenditioni Exponas;” Screws v. Watson, 48 Ala. 628. As to proof of affidavit submitted to sheriff, claiming some of the attached property as belonging to the C. Club, the rule as to proof by attesting witness, as laid down by Supreme Court in 76 Ála. 218-221, is cited.
   HARALSON, J.

1. The plaintiff, Lavretta, — appellant here — sued out an attachment against Moraquez, returnable to the City Court of Mobile, placed it in the hands of the sheriff, Hoicombe — appellee here, — who levied it on personal property supposed to belong to the-defendant in attachment. The suit was prosecuted to judgment in said court, for the sum of $478.24 and costs; the property levied on was condemned to be sold for the satisfaction of the judgment, and a writ venditioni exponas issued and was placed in the hands of the defendant, as sheriff, who advertised it for sale, and on the day of the sale, and before it came off, and the property which had been levied on was about to be sold under that writ, one Gerald, as president of the “Cosmopolitano Club,” by bis affidavit, made claim to a part of said property as being the property of said club and not of the defendant in execution; and defendant, having reasonable doubt whether the property he had levied on, which was claimed by said club, belonged to the defendant in attachment, and was liable to levy and sale under said writ, notified the plaintiff of this claim and of his reasonable doubt as to the ownership of the property, • and required of him a bond of indemnity, before proceeding to sell that portion of it which was claimed by said club; and plaintiff refused to give a bond of indemnity, and after ten days from the time he required said bond — no bond having been given — defendant released that portion of it which was so claimed, and sold and accounted for the balance.

2. The main question in the case is, whether the sheriff, having levied the attachment on the property, could after-toarcls demand an indemnity, and if not given in ten days from the demand, release it.

Section 2963 of the Code provides, “When a doubt exists as to the title of the defendant to personal property which the sheriff is required to levy upon, he may demand indemnity from the plaintiff.” This statute does not say that the doubt referred to, to authorize a demand for indemnity, must exist before the ievy is made; and it would certainly be a narrow construction and one directly against the policy of the law, to so interpret it. It was to relieve him of the peril under which he proceeded in such cases, at common law, that the statute was passed. The rule was a harsh one which required him to proceed, as the agent of the plaintiff in making his money, and run all the risk of a mistake in so doing; and so, in the suggestions of a better and juster policy, this statute was passed. Often, attachments are necessarily hurriedly levied, without opportunity to investigate the ownership of property on which levies are required to be made, and when claims to it are not generally ascertained, until after a levy; and to hold that a sheriff, in this race of diligence he runs for plaintiff, because he did not know of the danger ahead of him, before he started, can not stop, but must go right ahead, when he finds it out, puts him in no better position for protection with, than without the statute. It is reasonable and fair to hold, that he may demand indemnity, under this statute after, as well as before the levy, and, if not given, he is not bound to sell. If a sacrifice is to be made at this point, better the plaintiff than the sheriff.—Screws v. Watson, 48 Ala. 628. In this case, the sheriff having an attachment against the estate of McDon-aid, levied on tbe goods of Watson, and afterwards, wben judgment bad been obtained against McDonald in tbe attachment suit, execution issued and was levied on tbe same property, on wbicb be bad levied tbe attachment, but be refused to sell unless indemnified.- And tbe obligors on that bond were held liable on it, a result that could not have been reached, if it bad not been lawful to demand indemnity, after tbe levy of an attachment.

3. But this case finds relief under another section of tbe Code — 2905—wbicb is in a different title, article and chapter from tbe one to wbicb we have just been referring. Tbe article under wbicb this section — 2905—comes, relates to “Levy, Sale and Return; Venditioni exponas and Conveyance.” Its provisions refer to writs of venditioni exponas, as well as to writs of execution. These provisions are, “When a reasonable doubt exists whether the property levied on, (it does not say under execution), belongs to tbe defendant, or whether tbe property alleged to be bis, is subject to levy and sale, tbe sheriff may require of tbe plaintiff, bis agent or attorney, a bond of indemnity; and, if it is not given, within ten days thereafter, be may restore tbe property to tbe defendant, if levied on, or decline to levy, if one has not been made.”

There is but little difference in fact, and none in legal effect, in an execution and a venditioni exponas. Tbe one is an order to seize any property tbe sheriff may find wbicb belongs to tbe defendant and sell it, to satisfy the judgment on wbicb it issued; tbe other is an order to sell particular property already seized and in tbe bands of tbe officer, to satisfy tbe judgment on wbicb it issued. They are tbe means of accomplishing tbe same end — tbe satisfaction of the judgment. The officer levying and selling is exposed to tbe same hazards, against wbicb it is tbe policy of tbe law to shield him, in proceeding to accomplish this result, so beneficial to tbe plaintiff, whether under tbe one or tbe other. It would not hurt him any more, to be ruined in making tbe money for a plaintiff under a venditioni exponas, than under an execution, and tbe legislature knew that, wben it made said section of the Code broad enough to cover tbe sheriff, whether be acts in making a levy under one or tbe other writ.

4. Wben tbe plaintiff recovered bis judgment, be might have issued execution on it, against tbe property, generally, of the defendant, and coming to tbe bands of tbe sheriff, be might have levied it on tbe property already levied on, and in bis bands under tbe attachment, and thereby have en-forced bis lien as effectually as by a venditioni exponas. In tbat case, wbo denies, if doubt bad risen as to tbe defendant’s ownership of tbe property, be would bave bad tbe right to demand indemnity ? And what reason can be assigned, why be should not bave tbe same right, when proceeding under venditioni exponas ?

Applying these principles to the demurrers to tbe 8th and 9th pleas, we must bold they were rightly overruled.

5. In the course of tbe trial, an effort was made, by tbe defendant as is stated, to establish tbat tbe Cosmopolitano Club, which claimed tbe part of tbe property levied on, was a corporation, and for tbat purpose, offered in evidence tbe incorporation book, kept in tbe office of tbe judge of probate, and the proceedings touching tbe organization of said Club, as found in said book, but they were ruled out, on tbe motion of tbe plaintiff, “because they did not show a corporate organization as required by law.” It could bave served no indispensable purpose, to show tbat tbe Club was organized, for an unchartered association of individuals, styling themselves tbe “Cosmopolitano Social and Literary Club,” could bave owned tbe property levied on, aijd made claim to it, as well as if they bad been incorporated. Having objected to defendant proving tbe corporate existence of said Club, tbe plaintiff could not well object to proof of a voluntary association of individuals under that name, ahd tbe objection to tbe question propounded to tbe witness, L. B. Gould. — “ ‘Do you know whether or not several people, or a number of people, acted together, and claimed to be a Club under tbe name of tbe ‘El Cosmopolitano Social and Literary Club,’ ” was properly allowed, tbe other evidence tending to show tbat this Club made claim to a part of tbe property levied on, which tbe sheriff demanded indemnity to sell. Eor the same reasons, tbe question propounded to and answered by tbe same witness, which constitutes tbe basis for tbe 5th assignment of error, was allowable.

6. Tbe statements of said witness, tbat be bad been elected as president of tbe Club, as shown by its minutes and tbat be was, in May, 1889, and prior thereto, acting as tbe president of an organization or a society of gentlemen, designating themselves, tbe “El Cosmopolitano Social and Literary Club,” were very proper to be answered. They tended to show a voluntary organization under that name, which claimed this property, and tbat tbe claim was not simulated but real. The question propounded was, “if be claimed to be an officer of tbat Club ?” Tbe answer was, “tbat be did not claim to be an officer thereof, but tbat be bad. been elected as tbe president of tbe Club, as shown by tbe minutes.” Whether tbe minutes of tbe Club showed be was elected or not, was, immaterial, if be acted, and tbe statement of tbe witness was about a collateral fact, which was also a collective fact, to which be was competent to testify, as much so as when a witness testifies be executed a deed or brought a suit.

7. We have held that a defective certificate of acknowledgment of a conveyance may, from necessity, operate .as tbe formal attestation of a witness, to prevent tbe instrument from being inoperative as a conveyance. Carlisle v. Carlisle, 78 Ala. 544; Rogers v. Adams, 66 Ala. 600; but, that is in a case, where the instrument, to have any legal effect, must be acknowledged or attested, and to save a conveyance which tbe parties intended to make, tbe magistrate who takes a defective acknowledgment, is allowed to be converted into a subscribing witness to tbe conveyance.

Tbe affidavit, tbe proof of tbe execution of which, in tbe form it was allowed, — made tbe basis of an exception, — was a private paper, one which tbe law does not require to be made. It was a mere notice to tbe sheriff of tbe claim of tbe El Cosmopolitano Club to a part of tbe property be bad levied on, forbidding him to sell it. We are not informed it was made as tbe basis of a replevy; and on tbe presentation of this claim, as tbe bill of exceptions states, a release of tbe levy of tbe property described in tbe affidavit was demanded of tbe sheriff in behalf of said Club. To make tbe claim appear to be tona fide, no doubt, it was sworn to. Tbe Notary Public before whom it was sworn, is not, properly speaking, a subscribing witness to it, and it is not necessary, now, so to decide. But, if tbe notary were tbe attesting witness, tbe paper is not tbe foundation of tbe right and title of tbe Club to tbe property, tbe sale of which, by the paper, it forbade; but it is “merely collateral, or inter alios, under or from whom neither party seeks to claim any right or interest.” Askew v. Steiner, 76 Ala. 221. And so, tbe witness, Gould, was properly allowed to prove bis own signature and that of Jno. Marquez, tbe other maker of tbe written claim. This view of tbe case disposes of tbe remaining assignments of error.

We find no error in tbe record, and tbe judgment of tbe City Court is affirmed.

Affirmed.  