Bain v. Wells

• Decision Date: 20 June 1895
• Citation: 107 Ala. 562,19 So. 774
• Parties: BAIN v. WELLS ET AL.
• Court: Alabama Supreme Court

19 So. 774

107 Ala. 562

BAIN v. WELLS ET AL.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Marshall county; James A. Bilbro, Judge.

This action was brought by the appellant, George Bain, against the appellee M. G. Wells, as sheriff, and the sureties on his official bond, to recover damages for the unlawful taking of several hundred bushels of corn, alleged to have been the property of the plaintiff. The defendant pleaded four pleas. The first was the general issue. The second plea averred justification under a landlord's writ of attachment for rent. There was a demurrer sustained to the third plea, and the fourth plea is sufficiently stated in the opinion. The material facts of the case are set forth in the opinion of the court.

The defendant was allowed to introduce in evidence, against the separate objection and exception of the plaintiff, the affidavit for attachment, the writ of attachment, the complaint, the pleas, and the judgment entry in the case of McDonald, administrator, against J. S. Bain, Jr. The objection to each part of this testimony was on the ground that it was illegal, irrelevant, immaterial, and was res inter alios acta. The defendant also introduced evidence of the presence of the plaintiff at the trial of the case of McDonald against Bain, and that he took part in the trial and made suggestions as to the conduct of the defendants, and was a witness on said trial. The plaintiff interposed the same objections to this evidence, and separately excepted to the court's overruling his objections. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence they will find for plaintiff on defendant's second plea. (2) If the jury believe the evidence, they will find for plaintiff on defendant's fourth plea. (3) If the jury believe the evidence, they will find for the plaintiff, and the measure of his damages is the value at the time of the taking of the corn seized, less the corn raised on the rented premises, with interest thereon. (4) The court charges the jury that the writ in evidence is no protection to the defendant for taking this corn. (5) If the jury believe the evidence, they will find for the plaintiff for all of the corn seized, except the corn raised on the land which plaintiff rented from McDonald for the year 1890, and the extent of the damages is the value of the corn at the time of the taking, with interest thereon down to the present time. (6) If George Bain, at the time the levy was made, told the sheriff that the corn was his, and if he levied on it he would make him or McDonald pay for it, then your verdict should be for the plaintiff, if you believe the evidence in this case, for all the corn levied on, except what was raised on the land rented by plaintiff from McDonald." At the request of the defendant, the court gave to the jury the following written charges, and to the giving of each of these charges the plaintiff separately excepted: "(1) If you find that the plaintiff pointed out the corn to the sheriff at the time of the levy as the corn grown on the place rented from McDonald, then plaintiff can recover nothing, even though the corn belonged to plaintiff. (2) If the jury find from the evidence that George Bain informed Wells or pointed out to Wells the corn in the crib as the corn grown on the place McDonald had rented to him, George Bain, in 1890, and which he had and cultivated in 1891, then defendants are guilty of no wrong, and your verdict should be for them. (3) If the jury find from the evidence that the plaintiff made statements to the sheriff which were reasonably calculated to, and did, lead the sheriff to believe that the corn in the crib levied on was grown on the rented premises, and made no suggestion or intimation to the sheriff that other corn than that grown on the rented premises was in the crib, then the plaintiff cannot recover." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Affirmed.

O. D Street, for appellant.

Lusk & Bell, for appellees.

COLEMAN J.

The appellant, George Bain, sued Wells, as sheriff, for the wrongful seizure of 400 bushels of corn levied upon under an attachment sued out by one McDonald, as administrator against Simps Bain, brother of plaintiff. The defendant pleaded the general issue, and justified under two special pleas, numbered 2 and 4. The pleas of the defendant showed substantially the following facts, and the evidence tended to support them: That for the year 1890 McDonald, as administrator, rented certain lands to plaintiff, George Bain; that some time in December, 1890, McDonald, as administrator, at public auction rented the same lands for the year 1891 to Simps Bain, and that plaintiff, George Bain, was present at said renting, and bid for the lands; that the rent for the year 1891 not being paid at maturity, the landlord brought suit against Simps Bain on the rental contract, and sued out an attachment against him to enforce the landlord's lien for the unpaid rent, which attachment was levied by the sheriff on the corn in controversy. Simps Bain litigated the attachment suit, but plaintiff recovered a judgment against him for the amount agreed to be paid, and obtained an order of condemnation of the corn levied upon. When the sheriff went on the premises to levy the attachment, he found George Bain, the plaintiff, in possession, and in possession of the corn. George Bain notified the sheriff the corn belonged to him, and that he would hold the sheriff responsible for...