WILSON vs. SAWYER

WILSON vs. SAWYER. [AÍTUOX AGAINST SHERIFF, FOR MONEY HAD AND RECEIVED.] 1. íh r.-?' -t right io commissions for Execution of process regular on its face,vi I on void judgment,' — A sheriff is not ««titled, as against the fii it in execution, to retain liis commissions out of the proceeds c. c - - ile of property under an execution regular on its face, hut is - . e-i a judgment which is void on account of the incompctency of -.'aiding judge; although the statute (Code, § 8284) protects h¡- ; :e execution of such process. - ‘ Appeal The before the Hon. James 13. MautiN. Tfie: action was brought by John B. 'Wilson, against Hen; v J; Sawyer, to recover the sum of about $250, money reta o a! by the defendant as his commissions, as sheriff, on the :.:ue of property under an execution against the plaintiff; and. was commenced on the 13th August, 1860. The execution was issued, on.the 13th March, 1868, on á decree ren-den J by the probate court, on the 3th March, 1858,'is. favor of 'Martha J. Wilson, against ih.> plaintiff; went into the mils of the defendant, as sheriff of the county, and was 'whim levied on the plaintiff’s property.; and the pro iy was sold,-under said execution, in July, 1858, and brought about $8,500. The'decree of the probate court, on which said execution issued, was reversed by this court, at ií ¡ June term, 1860, (before the commencement of the present suit,) and the cause remanded ; the reversal being placed on the ground, that the decree was void on account of tun incompetency, from interest, of the probate judge before, whom the proceedings were-had. — ¿See the case re-pon o;l -in 36 Ala. 655. All the facts of that case, as shown by tire printed report, were in evidence, and were admitted to be there correctly stated.-; and it was agreed, that the report might be considered a part of the bill of exceptions, It was further admitted, “ that said execution was regular on its face in all respects.” This being all the evidence, tbe court instructed the jury, if they believed the evidence, to find for the defendant; to which charge the plaintiff ex-, cepted, and he now assigns the same as error. ( Alex. & Jno. White, for appellant. S. & J. ,T1 JLeiper, contra. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. The question presented by this record.is, whether a sheriff, who has sold propeity under a fi.fa. regular on its face, but issued upon a judgment which was void, because the judge was incompetent to try the case, (Code, $ 560; Wilson v. Wilson, 36 Ala. 655,) is entitled, as against the defendant in the execution, to retain his commissions out of the proceeds of the sale. The Code provides, that whenever it appears that -the process is regular on its face, and is issued by the competent'authority, a sheriff or other ministerial officer, is justified in- the execution of the same, whatever may be tbe defect in the proceeding on which it ivas issued.” — Code, § 2284. This section was designed to give legislative sanction to the just and salutary rule, adopted by some courts independently of legislation, that ministerial officers are not responsible for executing any process regular on us-ía-ce, if the court from which it issues has general'jurisdiction to award such process, although it had not jurisdiction;in that particular case. — See Rogers v. Mulliner, 6 Wend. 597; Lewis v. Palmer, ib. 367; Savacool v. Broughton, 5 Wend. 170 ; Coon v. Congden; 12 Wend. 496; People v. Cooper, 13 Wend. 379, 384; Noble v. Holmes, 5 Hill, 194 ; People v. Warren, 5 Hill, 440; Watson v. Watson, 9 Conn. 1-40 ; Jones v. Hughes, 5 Serg. & R. 299 ; Forward v. Marsh, 18 Ala. 645, 648; Clarke v. May, 2 Gray, 410; 3 Phil. Ev. (C. & H. notes, ed. 1843,) pp. 990, 107-8-9, 1078. But the rule which justifies an officer, who acts under process apparently regular, though really void, is one of protection merely.-. “ It is a shield, but not-a sword. The officer, when sued., may defend under such process; but’ lie cannot build up a title upon it, which will enable him to maintain actions against third persons.” — Horton v. Hendershott, 1 Hill, 118; Sturbridge v. Winslow, 21 Pick. 83, 87. The execution in' this case, though regular upon its face, was in fact void, and, in the very nature of things, no right can arise out of it. The statute exempts the sheriff from responsibility ; but it-was not designed'to reward or compensate him for executing such process. It would be most unjust, indeed, to take the property of a ciiizen to pay for the execution . of process against him which was issued without'authority of law. The principle is-a sound one, that “ no right can be derived from an unlawful act, in favor of a sheriff who does the unlawful act;” (Collier v. Windham, 27 Ala. 294;) and hence we conclude, that where the judgment is void, the sheriff is not entitled to commissions for executing the fi. fa. issued upon it. — See Nowlin v. McCalley, 31 Ala. 682. judgment reversed, and cause remanded.