Mr. Justice NELSON
delivered the opinion of the court.
This is a writ of error' to the District Court of the United States for the Middle District of Alabama.
The suit was brought upon an official bond given by Alexander Smith, as sheriff of Coosa county, and his sureties, conditioned that he would well and truly perform all and singular the duties of his office as required by the laws of the State.
The declaration sets out a judgment, recovered by J. W. and B. Leavitt at the Eall term of 1839, in the Circuit Court of the Second Circuit of the State of Alabama, against Jeremiah M. Erion, for the sum of $3,472: also an execution upon the same issued to the said Smith, as sheriff. ■
Fourteen breaches of the condition of the bond are assigned,for the purpose of charging the defendant and his' sureties with the payment of the'judgment.
In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two proyisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner: and thereupon it shall be'the duty of the sheriff to postpone the sale until the next term of’the court; and such court shall require the parties concerned to make up an issue, under such rules as'it may adopt, so as to try the right of property before a.jury at the same term; and the sheriff shall make a return on the execution accordingly, • provided the person claiming such property, or his attorney, shall give a bond to the sheriff with surety equal to the amount of the execution, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may’assess against him, in case it should appear that such claim was made for the purpose of delay. Clay’s Dig. 211, § 52.
It is further pro vided, ’that -it shall be the duty of the sheriff to return the property levied on to the person out of whose -possession it was taken upon-such person entering into a bond vyith surety to the- plaintiff in the execution in double the amount of the debt and costs, conditioned for delivery of the property to the sheriff whenever the claim of property so made-shall be determined by the court. . Ib;
It was subsequently provided that one bond might be taken with a condition embracing- substantially the matters contained in the two 'above mentioned. Ib. 213, § 62.
The other provisión is, that whenever the sheriff-shall fail 1°. make the money on the execution on or before the first day of the term of the court before which the execution is returnable, the plaintiff or his attorney shall suggest to the court that the. money could have been made by the sheriff, with du.e diligence, and it shall be the duty of the court forthwith to cafise an issue to be made up to try the fact; and if it shall be found by the jury that the money could have been made with' due diligence, judgment shall be rendered against the sheriff,'and his safeties, or any or either of them, for the money specified in the execution, together with ten per centum on the amount. • lb. 213,, § 85. '
There is, also, a similar provision in the case of the suggestion of a false return on the execution by the sheriff. Ib. 218, '§.84./
"We have said’there are fourteen breaches assigned of the condition of the bond in question in the declaration.
The first is, that there were divers goods and chattels, lands and tenements of Frión, the defendant in fhe execution within' its. lifetime, out of which the sheriff could have levied the amount of the judgment: but that he had neglcctéd to levy find' collect the same.
Second and third, that he had levied upon sufficient goods and chattels of the defendant, but had neglected to sell the same, and collect the amount.
The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth, that the return made upon the execution, namely, , that the goods levied' on had been claimed by A. B; Dawson' and' Samuel Frión, assignees of J. W. Frión, defendant in' the" execution, and claim-bond given to W. J. Campbell, now sheriff, and my successor in office — was false, setting out in various of these breaches the grounds of the falsity in the return, namely, either that no claim had been made to the property by Dawson and Frión, or if made, no affidavit, as required by the statute," had been furnished to the sheriff, or no bond had been required, . or given; or that the proper affidavit had been made, but no bond given according to the requirement of the statute.. -
The thirteenth' and fourteenth breaches admit an affidavit and'bond, according to the statute; but charge that the claim-bond was lost by the negligence of the sheriff, and was not returned to the court with- the execution at the return of the writ. . '
The defendants plead to the first, second, and third breaches-, that at the April term of the court held in and for the county of Coosa, in 1840, the plaintiffs in the execution suggested to the. court, according to the statute in such cases made and provided, after setting out the execution, and issuing of it to the
sheriff, and return of it without having levied the money thereon, that the same might have been collected, if due diligence had been used b, the sheriff; that thereupon an issue was formed upon this suggestion; and, that upon the trial such proceedings were had that the jury found the same in favor of the defendants. The plea further avers that the alleged neglects,] defaults and breaches of duty in. the first, second, and third breaches assigned, and in said suggestion are the same, and' not different.
To this plea the plaintiffs replied,’that the matters, neglects, and defaults in the said three breaches assigned in the declararation, were not the same identical matters, neglects, and defaults as in said plea mentioned, and for and in respect to which the said judgment in said plea' mentioned was recovered in manner and form as set forth.
To this replication there was a demurrer and joinder, and judgment for the defendants.
The defendants, also, plead to all the breaches severally, except the first, that the goods and chattels levied on as stated in said breaches at the time of the said levy,, and at the time said execution came to the hands of the said Smith, sheriff, as aforesaid, were not the property of the said Jeremiah M. Frión, the defendant in the execution, and were not liable to be taken for the payment or satisfaction of the said judgment.
There was a demurrer to this plea, and joinder, and judgment for the defendants.
These two pleas cover ail the breaches assigned in the declaration, and if they furnished answers to them, the judgment for the defendants in the court below should be sustained.
The first three breaches, as we have seen, were first that there were goods of the defendant in the execution, and of. which the sheriff could have, levied the money; but that not regarding, his duty, he neglected, and refused so to do. Second and third, that- he did make a levy upon the goods, but neglected and refused to sell the same.
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Mr. Justice NELSON
delivered the opinion of the court.
This is a writ of error' to the District Court of the United States for the Middle District of Alabama.
The suit was brought upon an official bond given by Alexander Smith, as sheriff of Coosa county, and his sureties, conditioned that he would well and truly perform all and singular the duties of his office as required by the laws of the State.
The declaration sets out a judgment, recovered by J. W. and B. Leavitt at the Eall term of 1839, in the Circuit Court of the Second Circuit of the State of Alabama, against Jeremiah M. Erion, for the sum of $3,472: also an execution upon the same issued to the said Smith, as sheriff. ■
Fourteen breaches of the condition of the bond are assigned,for the purpose of charging the defendant and his' sureties with the payment of the'judgment.
In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two proyisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner: and thereupon it shall be'the duty of the sheriff to postpone the sale until the next term of’the court; and such court shall require the parties concerned to make up an issue, under such rules as'it may adopt, so as to try the right of property before a.jury at the same term; and the sheriff shall make a return on the execution accordingly, • provided the person claiming such property, or his attorney, shall give a bond to the sheriff with surety equal to the amount of the execution, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may’assess against him, in case it should appear that such claim was made for the purpose of delay. Clay’s Dig. 211, § 52.
It is further pro vided, ’that -it shall be the duty of the sheriff to return the property levied on to the person out of whose -possession it was taken upon-such person entering into a bond vyith surety to the- plaintiff in the execution in double the amount of the debt and costs, conditioned for delivery of the property to the sheriff whenever the claim of property so made-shall be determined by the court. . Ib;
It was subsequently provided that one bond might be taken with a condition embracing- substantially the matters contained in the two 'above mentioned. Ib. 213, § 62.
The other provisión is, that whenever the sheriff-shall fail 1°. make the money on the execution on or before the first day of the term of the court before which the execution is returnable, the plaintiff or his attorney shall suggest to the court that the. money could have been made by the sheriff, with du.e diligence, and it shall be the duty of the court forthwith to cafise an issue to be made up to try the fact; and if it shall be found by the jury that the money could have been made with' due diligence, judgment shall be rendered against the sheriff,'and his safeties, or any or either of them, for the money specified in the execution, together with ten per centum on the amount. • lb. 213,, § 85. '
There is, also, a similar provision in the case of the suggestion of a false return on the execution by the sheriff. Ib. 218, '§.84./
"We have said’there are fourteen breaches assigned of the condition of the bond in question in the declaration.
The first is, that there were divers goods and chattels, lands and tenements of Frión, the defendant in fhe execution within' its. lifetime, out of which the sheriff could have levied the amount of the judgment: but that he had neglcctéd to levy find' collect the same.
Second and third, that he had levied upon sufficient goods and chattels of the defendant, but had neglected to sell the same, and collect the amount.
The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth, that the return made upon the execution, namely, , that the goods levied' on had been claimed by A. B; Dawson' and' Samuel Frión, assignees of J. W. Frión, defendant in' the" execution, and claim-bond given to W. J. Campbell, now sheriff, and my successor in office — was false, setting out in various of these breaches the grounds of the falsity in the return, namely, either that no claim had been made to the property by Dawson and Frión, or if made, no affidavit, as required by the statute," had been furnished to the sheriff, or no bond had been required, . or given; or that the proper affidavit had been made, but no bond given according to the requirement of the statute.. -
The thirteenth' and fourteenth breaches admit an affidavit and'bond, according to the statute; but charge that the claim-bond was lost by the negligence of the sheriff, and was not returned to the court with- the execution at the return of the writ. . '
The defendants plead to the first, second, and third breaches-, that at the April term of the court held in and for the county of Coosa, in 1840, the plaintiffs in the execution suggested to the. court, according to the statute in such cases made and provided, after setting out the execution, and issuing of it to the
sheriff, and return of it without having levied the money thereon, that the same might have been collected, if due diligence had been used b, the sheriff; that thereupon an issue was formed upon this suggestion; and, that upon the trial such proceedings were had that the jury found the same in favor of the defendants. The plea further avers that the alleged neglects,] defaults and breaches of duty in. the first, second, and third breaches assigned, and in said suggestion are the same, and' not different.
To this plea the plaintiffs replied,’that the matters, neglects, and defaults in the said three breaches assigned in the declararation, were not the same identical matters, neglects, and defaults as in said plea mentioned, and for and in respect to which the said judgment in said plea' mentioned was recovered in manner and form as set forth.
To this replication there was a demurrer and joinder, and judgment for the defendants.
The defendants, also, plead to all the breaches severally, except the first, that the goods and chattels levied on as stated in said breaches at the time of the said levy,, and at the time said execution came to the hands of the said Smith, sheriff, as aforesaid, were not the property of the said Jeremiah M. Frión, the defendant in the execution, and were not liable to be taken for the payment or satisfaction of the said judgment.
There was a demurrer to this plea, and joinder, and judgment for the defendants.
These two pleas cover ail the breaches assigned in the declaration, and if they furnished answers to them, the judgment for the defendants in the court below should be sustained.
The first three breaches, as we have seen, were first that there were goods of the defendant in the execution, and of. which the sheriff could have, levied the money; but that not regarding, his duty, he neglected, and refused so to do. Second and third, that- he did make a levy upon the goods, but neglected and refused to sell the same.
The plea sets up that the plaintiffs made a suggestion, under the statute, to the court, at the return of the execution, that the sheriff could have collected the money thereon, if he had exercised due diligence in the execution of the writ; and upon this suggestion or allegation an issue was formed between the parties and tried by a jury, who found a verdict for the defendants, upon which a judgment was rendered. .
The replication to this plea is that the matters, neglects^ arid defaults in the said three breaches in the declaration were nut the same matters, neglects, and defaults in' the said plea mentioned, and in respect to which the judgment was recovered.
We think the replication is bad, on the ground that it raises an issue of law, rather than one of fact. The matters in all three of the breaches were necessarily involved in the question of due and proper diligence on the part of the sheriff in the execution of the
ft. fa.
The omission to levy upon the goods, or to sell after the levy, fell directly within the issue and inquiry in that proceeding under the statute; and we are bound to presume were the subject of exámination before the court and jury, and were passed upon by them. Where the facts in issue appear upon the record, either expressly or by necessary intendment, it is not competent to contradict them, as this would, be contradicting the record itself. The judgment is conclusive upon these facts, between the same parties or privies, whenever properly pleaded. If the matters involved in the issue do not appear upon the record, then it is competent to ascertain them by proof
aliunde. 2
Phillips’s Ev. 15, 20,21; C. & H. Notes, p.. 13; Note 14; also p. 163 — 4 and cases.
Here we cannot help ..seeing, that the matters sought to be put in issue by the replication are those necessarily involved in the former trial; and to uphold it would be. to permit the same-facts to be agitated over again. Certainly, neglect to levy the money on the execution out of the defendant’s goods within the sheriff’s bailiwick, or neglect to sell them, and make the money after the levy, are facts bearing directly on the former issue ;■ and one criterion for trying whether the matters or cause of action be the same as in the former suit, is, that the same evidence will sustain both actions. 2 Phillips’s Ev. 16; C. & H. Notes, p. 19, note 17.
The issue upon the súggestion, that the sheriff could have levied the money on the execution with the exercise of due diligence, is a very broad one. It is held, by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence; and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But, if the defence consists of new matter or matters of avoidance, he must then plead it. 3 Ala. R. 28.
It is difficult to conceive of a broader issue for the purpose of charging this officer with neglect or default in the course of his duty under the execution.
Then, as to the plea that the goods levied on were not the goods of the defendant in the execution, and not liable to thé satisfaction of the judgment. This the demurrer admits. Of course, the sheriff' had no authority to make the levy, and stood responsible himself to .the owner, as a trespasser, as soon as the seizure took place. In the face of this admission on the record, it is impossible to hold him liable for the valúe of the goods.
The plea answers the material' allegation in each of the assignments of breaches,'and without which the assignment would be substantially defective, namely, the seizure of the goods on .the execution. The allegations as to no claim having been made to the property by third persons, and no affidavit taken, or bond given, or if. given that it was lost, are matters depending upon the levy. If that is denied or avoided, the several breaches are fully answered,
Now, the seizure of the goods of .a third person, on the execution, does not change the title or make them the goods of the defendant on the execution. The only effect is, if after this the • sheriff returns the execution
nulla
bona, the burden is thrown upon him in a suit for a false return to show that the goods were not the defendant’s, and therefore not liable to the execution. Magne
v.
Seymour, 5 Wend. R. 309; 1 B. & C. 514.
The same principle was held in Mason et al.
v.
Watts, 7 Ala. R. 703. That was a case arising out of a suggestion against the sheriff and his sureties, under thp statute to which we have referred, and in a case where the gpods had been seized, and a return upon the execution accordingly. The suggestion was met that the goods were not the property of the defendant in the execution.
The court say, that the sheriff may excuse himself by showing that the defendant in the execution had no property in the goods levied upon.. That the reason for this is, that the sheriff, by levying upon the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of holding the goods after he has ascertained their true ownership. Another observation in that case is applicable here.. The court says it may be, if a loss results to the plaintiff'.by being cast in costs, or otherwise, from the neglect of the. sheriff to retain the, affidavit, of claim, or bond executed by the claimant, he may be liable in. an .action on the case, but not for the value of the property levied on. Although the suit on the bond in this case, according to' .the practice in the courts ,pf Alabama, may be regarded ás a substitute for this action, still no such ground or cause of action' is set out in any of the assignments of breaches, and of course, no opportunity given to; answer it. We are satisfied,- therefore, that the 'plea is a .f^U answer to all the breaches assigned to which it refers, and has been pleaded.
There are many other, pleas, replications, .and issues of law raised upon them, arising out of the useless.number of breaches .assigned in the declaration, and which have very much tangled and complicated the pleadings in the record; but we do not propose to examine or express' any opinion upon them,'- as upon the whole record we see a ^complete defence to all the
canses of action set forth in the declaration, it would be an idle and profitless waste of time to enter upon their examination, and, besides, whatever might be our conclusions, they would not vary the result. Stephens’s PI. 153,176.
The judgment of Úie court below is affirmed.
Order.
This cause came on to be heard on the transcript of‘the record, from the District Court of the United States for the Middle District of Alabama, and was ■ argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the-judgment of the said District Court in this cause be, and the same, is hereby affirmed, with costs.