Thornton v. Cochran

51 Ala. 415

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

SAFFOLD, J.

The appellant asks for a rehearing, on the ground that the court assumed the taking of the property to have been done by force. The witness Anderson said, “ Ramsey, who was deputy sheriff of Etowah county, and who pretended to be acting in that capacity, turned over said property to defendant.” “ In a few days afterwards, all the said property, except the cotton, and about fifty bushels of corn which had been destroyed, was returned to plaintiff.” “Defendant replied ” (to a proposition of plaintiff to pay, if any balance was due), “ he wanted money, and money he would have.” Ramsey said, he was deputy sheriff, but had no process except the mortgage; he acted as Thornton’s agent, and turned the property over to him;, Thornton indemnified him, in a bond of $1,000.

When a mortgagee takes a sheriff with him, under an indemnifying bond of $1,000, to levy on the mortgaged property, and thereby gets possession against the consent, though without the active resistance of the mortgagor, he cannot escape from an action of trespass, on the ground of a balance due him on the mortgage. He and the sheriff would both be trifling with the obedience of the citizens to the law and its officers. Admitfcance into a house, obtained under pretence of having a search-warrant, or of being authorized to make a distress, is a sufficient breaking and entering to constitute burglary. 1 Russ, on Crimes, 792. The rehearing is denied.