
    BOYKIN vs. EDWARDS.
    1. A party is incompetent to execute process in bis own favor.
    2. But mere identity of name will not authorize the court to infer, in the absence of a direct allegation in the pleadings, that the plaintiff in the writ and the deputy constable by whom it was executed are the same person.
    3. In trespass against defendant for taking plaintiff’s horse, defendant pleaded justification under legal process, to which plaintiff replied specially that at the time of the levy he had a family and but the one horse levied on, which was protected by law from levy and sale. Held,
    
    That the replication admitted the validity of the writ and the capacity of the person by whom it was levied to execute it, and only raised the question whether the horse was subject to the levy; and though the proof showed that the plaintiff in the writ was the person who executed it, and the court charged the jury that the levy was valid though made by the plaintiff in the writ, yet it was error without injury, and the judgment would not be reversed.
    .4. The statute of this State, (Clay’s Digest 210, § 47,) which exempts from levy and sale one horse for the use of every family, can be invoked only by a person who resides in this State, and has a family.
    5. The statute of Mississippi which exempts one horse from levy and sale is- a local act, and can only protect the property exempted so long as it remains within the limits of that State.
    Ekbob to tbe Circuit Court of Choctaw.
    Tried before the Hon. L. GibboNS.
    This was an action of trespass, for taking the plaintiff’s horse. The suit was commenced against James Whitted and Sterton B. Edwards; pleas, not guilty; and each defendant pleaded separately, justification. Edwards set out in his plea of justification, that an attachment was issued by Joshua Morse, a justice of the peace, in favor of John P. Cook and Sterton B. Edwards, against the plaintiff, Boykin, which writ came to the hands of James Whitted, a constable. The plea-set forth the writ, and, on the back of it, the following endorsements : “ Sterton B. Edwards is deputized to execute this writ, September 12, 1850, (signed,) Joshua Morse, J. P. [seal].” “Attached one bay horse, 16th September, 1850, S. B. Edwards, deputy constable. Attached one bay horse, September 19, 1850, James Whitted, constable.” The plea then avers, that the defendant, Edwards, did not take the horse, but that the constable did, under the said writ of at-tacbment. Tbe constable, also, justified under tbe attachment, and tbe plaintiff dismissed bis suit as to bim, and demurred to tbe special plea of Edwards, but his demurrer was overruled.
    Tbe plaintiff then replied to tbe special plea of Edwards, that be bad a family at tbe time of tbe levy of tbe attachment, and bad but tbe one horse levied on, and having no oxen, the horse was not liable to tbe attachment. On this replication issue was taken, and tbe parties went to trial, which resulted in a verdict for tbe defendant. During the trial tbe plaintiff took a bill of exceptions, which shows, that tbe attachment was in fact levied by tbe defendant, Edwards, who was deputized by tbe justice to make tbe levy, and that be was one of tbe plaintiffs in tbe attachment suit. It further appeared, that the residence of tbe plaintiff was beyond tbe line of this State, and was in Mississippi, although tbe larger part of bis farm was in Alabama. The plaintiff also proposed to show, that, by tbe laws of Mississippi, one horse was reserved for tbe use of a family, and was exempt from levy and sale; but tbe court ruled, that tbe statute of Mississippi could not protect the plaintiff in this State, and excluded tbe proof, to which the defendant excepted. Tbe court charged tbe jury, in substance, that tbe levy of tbe attachment was not void because tbe writ of attachment was levied by Edwards, one of tbe plaintiffs in that suit: and further, that if tbe plaintiff’s dwelling bouse was beyond tbe limits of this State, that then be was not entitled to tbe benefit of tbe statute of Alabama, reserving one horse for the use of a family exempt from levy and sale. To these charges the defendant excepted.
    Eapiek for tbe plaintiff in error.
    No counsel for tbe defendant.
   DARGAN, C. J.

— It is contended, that tbe court erred in overruling tbe demurrer to the plea of justification, for tbe reason, that tbe defendant, being one of tbe plaintiffs in tbe attachment, was incompetent to execute it, and the levy was therefore void.

It may be admitted that a party is incompetent to execute process in bis own favor, but still we think tbe demurrer was correctly overruled, for two reasons: first, there is no allegation in tbe pleadings showing that Sterton B. Edwards, tbe plaintiff in tbe attachment, is tbe same person who was deputized by tbe justice to execute tbe writ, and who made tbe levy. True, tbe name is tbe same, but I do not see bow tbe law could intend that tbe individual who executed tbe writ was the same person in whose favor it issued, merely because tbe name is the same. I think it should have been made to appear that be was, by a direct allegation. But independent of this, tbe plea directly denies that tbe defendant took tbe horse, and avers that it was levied on by tbe constable, James Whitted. This allegation is not contradicted, but directly admitted by tbe demurrer, and tbe writ being valid on. its face, as set forth in tbe plea, we tbink it clear that tbe demurrer was correctly overruled.

It is, however, insisted, that tbe question is presented by tbe bill of exceptions, as tbe evidence shows that tbe defendant was one of the plaintiffs in tbe attachment, and also, that be did in fact make tbe levy, and upon this evidence tbe court instructed tbe jury that tbe levy was not void. But here tbe plaintiff is met with tbe difficulty, that he did not, by his replication, traverse any of tbe facts set forth in the plea: but, on tbe contrary, replied that be had a family, and but one horse, which Avas protected from levy and sale. This replication does not put in issue tbe legal capacity of the defendant to execute tbe process, but raises the question only whether the horse was liable to tbe attachment. The validity of tbe writ, and the capacity of the party or person who executed it, are admitted, and tbe only issue is, whether tbe horse was subject to tbe levy. Consequently, if tbe court erred in charging the jury that tbe levy was valid, though made by the defendant, it was error without injury, and therefore will not reverse tbe judgment, for the court only charged what in effect was admitted by tbe plaintiff’s replication.

It appeared that tbe plaintiff resided in Mississippi, just beyond tbe line that separates this State from that, and had tbe larger part of his farm in Alabama; tbe levy was made in this State, and the question is therefore raised, whether tbe plaintiff is entitled to the protection of the act of 1838, which exempts one horse from levy and sale, for the use of every family, besides several other articles of property. See the act, Clay’s Digest 210. In the case of Allen v. Manasse, et al., 4 Ala. 554, this act received a construction from which we cannot depart. It was there held, that -the act was only applicable when the party invoking its protection had a family, and resided in this State, and if he did not have his residence within the State, he was not within its protection. Ajtply-ing this rule of construction, it is clear that the plaintiff is not entitled to the benefit of the act, for he resided beyond the limits of Alabama. We also think, that the statute of Mississippi, which is almost identical with our own, cannot protect him. For although the horse was exempt from levy and sale in Mississippi, yet the Mississippi act is local, and can only protect the property exempted by it from execution, so long as the property remains within the limits of that State; but when it passes from beyond her jurisdiction, it then loses the protection of her statute, and the residence of the owner being in Mississippi, he cannot acquire the benefit or protection of the act of Alabama.

There is no error in the record prejudicial to the plaintiff in error, and the judgment must be affirmed.  