
    Smith v. Hilton.
    
      Trover Against Constable.
    
    (Decided June 30th, 1906.
    41 So. Rep. 747.)
    1. Justices of the Peace; Qualification; Void Acts. — A justice of the peace whose term of office expired in August 1904, and who failed to give an official bond as required by General Acts 1903, p. 238, thus extending his term until the next general election, vacated the office, and an attachment issued by him after Sept. 10, 1904, was void.
    2. Sheriff’s and Constables; Wrongful Attachments; Void Writ no Defense. — A constable, under a void writ of attachment, levied upon certain property and delivered the same to plaintiff’s landlord, who sold the property and applied the proceeds to an alleged indebtedness of plaintiff for rent. Held, even if plaintiff was indebted to his landlord in an amount exceeding the value of the cotcon, such fact constituted no defense to an action of conversion against the constable.
    
      Appeal from Geneva Circuit Court.
    Heard before Hon. H. A. Pearce.
    This is an action by A. H. Hilton against W. H. Smith, a constable, for the conversion by him of certain cotton alleged to belong to plaintiff. The facts necessary to an understanding of the opinion sufficiently appear therein.
    Espy & Farmer, for appellant.
    The case of Bodman v. Grisham, 111 Ala. 194, is relied on by appellant to support his contention that evidence of the fact that appellee owed Blackmon, his landlord, more than the proceeds of the cotton as rent and that it was so applied, was admissible and a complete defense.to the action.
    B. P. Coleman, for appellee.
    Blackmon had no right to replevy. — § 555, code 1896; Wool fork v. Ingram, 53 Ala. 11. Testimony as to the application- of the proceeds of the cotton to pay the landlord was inadmissible. — Keith- v. Hamm, 89 Ala. 590; Byrd v. Womack, 69 Ala. 390, and cases therein cited.
   HARALSON, J.

It seems to be admitted on both sides, that O. A. Hardwick, who issued the attachment in favor of K Blackmon against the plaintiff in this ease, A. H. Hilton, was not in fact a justice of the peace, at the time he issued such attachment. He had been a justice, whose term of office had expired, and he failed to give an official bond by the 10th of September, 1904, as required by act approved 17th September, 1903 (Gen. Acts 1903, p. 238), which act provides, that the failure to execute, such bond by that date, vacated the office.

The attachment was issued, therefore, by a person not authorized, and it was of no more legal effect than if it had been issued by a private individual. The writ that was issued was void, and would not support a levy. On the motion of plaintiff, said Hardwick dismissed said attachment, as is stated in the bill of exceptions. This means nothing more nor less, than that said Hardwick repudiated said attachment, as having been inadvertently and improperly issued by him, and that he would have nothing more to do with the matter.

Before this action on the part of said Hardwick, the constable, W. H. Smith, into whose hands the writ of attachment went, turned the bale of cotton, on which he had levied the writ, in to the- hands of K. Blackmon, who claimed an interest in the cotton levied on, upon Blackmon giving him an indemnifying bond. The contention between the plaintiff and Blackmon was, as appears by the bill of exceptions, that plaintiff had rented land from Blackmon for the year 1904, at a stated rent, and made a crop on it, for which, as he alleges, he paid Blackmon, $60, which was all that he owed for rent of the land. Blackmon, on the other hand, claimed that plaintiff had not paid all his rent, but owed him more on that account, than the bale of cotton was worth. Therefore, Blackmon sold the bale of cotton and applied the proceeds, as he contends, towards the payment of the rent still, owing by plaintiff to him!

Thereupon, plaintiff commenced this action in trover against W. H. Smith, the constable, for the conversion of said bale’ of cotton. The defendant filed the plea of not guilty, and another plea, which is not set out in the record proper, nor in the bill of exceptions, which plea was, on motion of plaintiff, stricken out. Whether properly or improperly stricken, we are unable, and are not called on to adjudge, since we are not informed of the nature and character of said plea. The case was tried on the plea of the general issue, and the court gave the general charge for the plaintiff. It also instructed the jury, that the measure of plaintiff’s damages would be the value of the cotton at the time of the conversion of the same with interest from date of the conversion to the time of the trial. These charges are assigned as error, and Only the first is insisted on in argument.

As we have stated, the contention of defendant is, that if plaintiff was indebted to Blackmon, his landlord, for a balance due on rents for 1904, and Blackmon, after defendant delivered the cotton to him, sold it, and applied the proceeds to that indebtedness, this plaintiff could not recover in the case, if the value of the cotton sold did not exceed plaintiff’s alleged indebtness to Blackmon. This is tantamount to saying, that if A., owes B. a debt the latter has the legal right to take possession of A.’s personal property, without his consent and dispose of it, and apply' the proceeds of his sale to his debt Avithout liability therefor.

In Belser v. Youngblood, 103 Ala. 545, 15 South. 863, Ave held, that Avken a tenant Avho' has executed a mortgage on the crops grown on leased premises, sells a portion of such crops Avithout instruction or authority of his landlord, the purchaser is liable in trover to the mortgagee, though the proceeds of the sale Avere paid to the landlord in payment of rent due him. It was there said, that a different rule, would sanction a dangerous precedent, and be contrary to the former rulings of the court. — Keith v. Ham, 89 Ala. 590, 7 Eouth. 234; Bird v. Womack, 69 Ala. 392; Higgins v. Whitney, 24 Wend. 380. In Bird v. Womack, supra, which was an action of trespass de bonis asportatis, it Avas held, that if the defendant, being a mere trespasser, has applied the property seized by him to the plaintiff’s use, but without authority, and Avithout plaintiff’s consent, express or implied, this fact is not available to him in mitigation of damages, although the use to which the property Avas applied, was the satisfaction of a lien which a third party held thereon. In the course of the opinion it Avas said: “If defendants generally, Avere permitted to invoke such a défense, they would be encouraged in pragmatical interferences Avith the property of'.third persons, and, perhaps, to. such an extent as frequently to endanger the public peace. It is carrying the rule sufficiently far to accord this right of recoupment to parties Avho holds liens on property, which is the subject of conversion or trespass, and we are not inclined to extend its operation further, despite the hardship of the principle in many cases.”

We find no error in the record, and the judgment below is affirmed.

Weakley, C. J., and Doavdell and Denson, JJ., concur.  