FOURNIER v. CURRY, 4 Ala. 321

ORMOND, J. In the case of Boren v. McGee, [6 Porter, 432,] we expressed the opinion, that the sheriff had no power to pay a judgment and keep the execution open for his own benefit. That the defendant in execution could not deal on equal terms with him, armed as he is with the coercive power of the law, and that therefore such a traffic was forbidden by public policy, and that such payment, so far as it related to the defendant in execution, was a discharge of the judgment, who had the undoubted right to arrest the process and stop its execution.

The point was distinctly presented on the record and necessary and proper to be decided, and havin'g again consid-eyed it, we are satisfied of its correctness, being supported by reason and well sustained by authority. In that case the judgment was paid by the sheriff, the execution reissued and levied on the land of the defendant in execution, whieh was sold without objection by him. When the purchaser brought his action of ejectment, to recover the land, we held that the execution was voidable merely, and that the purchaser acquired a good title.

The principle to be extracted from that case is that an execution issued on a judgment thus discharged by the act of the sheriff is not absolutely void, but may be avoided by the de¿ fendant in execution ; and that if he omits to do so, the purchaser acquires a good title under it. It is true that some stress is laid, in that case, on the fact that the purchaser was ignorant of the discharge of the judgment, but that was not a necessary element of the ‘decision, which turned entirely on the question, whether the process was void or voidable.

In this case the objection is not made by the defendant in execution, but by a third person, and if it were conceded that the defendant in execution, without setting aside the process for irregularity, or the sale made under it, could raise this objection in an action by the purchaser, with notice that the judgment had been previously satisfied, it would by no means follow that such objection could be made by a stranger.

For although the law forbids such dealings between the executive officer of the law and the defendant, in execution from the tendency of such acts to extortion and oppression, yet such an advance of money by the sheriff may not only be fair and honest, but may have been induced by the entreaties and promises of the defendant himself, and exclusively for his benefit. He may therefore not desire/to avail himself of a privilege conferred on him.by law for his protection, and if he does not interpose no one else can. In Woodcock v.

Bennet, [1 Cowen, 737,] it is said that the definition of voidable process is, that it stands good until reversed, and can only be reversed by a party to the suit. In Jackson v. Bartlett, [8 Johns. 361,] where an execution had issued a year and a day after the judgment without revival by sci./a. it was held to be voidable at the instance of the party only against whom it issued. The Court therefore did not err in its instruction to the jury, that the purchase of the defendant in error, under the alias execution was not void.

The defendant also proved the Court to charge that a slave might be loaned in good faith for any period less than three years, without impairing the title of the owner, and without a registry of such loan. The Court admitted such to be the law, but informed the jury that the principle did not apply to the case, because three years had not elapsed since the loan was made. It has been frequently held in this Court, that it is error for the Court to refuse a charge correctly asked, although it may afterwards give the same charge in substance, on the ground of its tendency to mislead the jury.

I incline to the opinion that the charge in this case comes within the influence of those decisions. Evidence had been introduced to show that the defendant in execution was supposed by his neighbors to be the owner of the slave in controversy, from having the possession, and acquired credit thereby. It was therefore vitally important to the defendant to satisfy the jury that he was in no legal default, and that the false credit which it seems the younger Duval obtained from the apparent ownership, was owing to the credulity of those who relied on delusive appearances.

The injury to the defendant by the charge as given, was probably as great as if it had been refused. Nor can I understand with what propriety it could be said that the law referred to did not apply to the case, when it was by virtue of that alone that the possession of the younger Duval was consistent with title in the father. But my brothers think the Court was justified in limiting the charge in the manner it did, and placing the question on the ground of fraud. From this it follows that there is no error in the judgment, and it is therefore affirmed.