John G. Camp, vs. W. D. Moseley, and Martha Ann Manly, and Hiram Manly, in right of his wife, administrators and administratrix, de bonis non, of Samuel Parkhill, deceased, 2 Fla. 171

Hawkins, J., delivered the following opinion: The administrators de bonis non of Parkhill brought this action of trespass vi et armis in the Court below against Camp for seizing, taking, and leading away divers negro slaves, a hundred and eighty in number, the property of the said administrators.

They allege in their declaration, besides the trespass, that these slaves were detained and kept by Camp for a long time, whereby great damage accrued to the plaintiff by the deprivation of their services, &c. — ■ The defendant, Camp, pleaded the general issue, and justified himself for the alleged trespass, contending that he had taken the negroes by virtue and force of an execution issued from the late Superior Court of Leon County, at the suit of the Union Bank vs. Hiram Manly and wife, administrators of Samuel Parkhill, deceased. The plaintiff proved by B. W.

Gause, that he, Gause, had acted as appraiser of the property of the estate of Parkhill, and had appraised the negroes taken by Camp at the instance of the plaintiffs, in 1844 or 1845, and that the negroes afterwards went into, possession of plaintiff. Before the sale by the Marshal Camp, a part of the negroes were hired to witness by plaintiffs, and were delivered up to Camp, who informed him that he took them by a precept of the Court.

Here -the plaintiffs rested their cause, and the defendant offered in evidence the execution before referred to, which is in the words following: “ THE TERRITORY OF FLORIDA, To all and singular the Marshals of said Territory — Geeeting : We command you that of the goods and chattels, slaves, lands and tenements of Samuel Parkhill, deceased, in the hands of Martha' Ann Manly late Parkhill, and Hiram Manly in right of his wife said Martha Ann, administrators of Samuel Parkhill deceased, remaining to be administered, you cause to be made the sum of ninety four thousand one hundred and eighty two dollars and twenty-two cents its debt and also twenty-seven thousand nine hundred and eighty-two dollars and sixty-five cents its interest and damages, making together, the sum of one hundred and twenty-two thousand, one hundred and sixty four dollars and eighty seven cents, which the Union Bank of Florida, lately on the first day of March, 1845, recovered in our Superior Court for the County of Leon in the Middle District, as well for its debt as its damages, occasioned by the detention of said debt, and likewise the sum of seven dollars eighty-two cents, which to the said Union Bank of Florida, in the same Court adjudged for its costs by it in that behalf expended, together with lawful interest in said damages from the rendition of said judgment till paid, and the costs of this writ, and of your proceedings hereon, and that you have the said sums of money before the Judge of our said Court at Tallahassee, when satisfied to render the said Union Bank of Florida the sums aforesaid, and have then and there this writ.

Witness, Richard T. Birchett, Clerk, &c.” Upon this writ, Camp endorsed his levy on the negroes alleged by the plaintiff to have been so tortiously taken. The introduction of this writ was objected to by the plaintiffs on the ground that they were strangers to it, and required the original entry and record of judgment to accompany it. The objection was sustained by the Court. Other executions were then offered in evidence, which were in the hands of Camp, the Marshal, at the time of the trespass complained of, and upon which like proceedings were had as on the one already set out.

The pleadings and proceedings in these cases were the same, by consent of counsel. Without intending to discuss all the errors assigned, we will simply take up those which we may deem decisive oí the case. First, therefore, was it requisite and necessary that the record of the judgment upon which the execution issued should have been produced by Camp ? Upon a review of the authorities, we are of opinion that the production of the writ merely was sufficient.

There are several cases strongly in point as to this question, and we proceed to notice them, premising that they carry with them so high and cogent authority as to remove all doubt as to the correctness 'of our decision. The're is a case in 5th Burrows, 2,631, which assumes the negative of this proposition, but we prefer being guided by the reason and authority of decisions to which our attention has been called, and which we now cite. In Parsons vs. Loyd, 3 Wilson, R. 345, we find the law broadly laid down by Lord C. J.

De Grey, who substantially remarks: Parsons the plaintiff was illegally imprisoned under color of a writ sued out against him, which is a mere nullity; he has been unlawfully injured, and must have a remedy; but he has none against the officer, who is not to exercise his judgment touching the validity of the process in point of law; but is obliged to obey the command of the Courts of Westminster, or rather Superior Courts having general jurisdiction, and he may justify, under the writ, although it la void. But when the Courts has no jurisdiction of the cause, the whole is coram, non judice.

And he further says an action would lie against the party suing out such void writ. Citing 1 Levintz 95. 1 Siderfine 272. On page 376, in the same book (Wilson R.) it is further laid down by C. J. De Grey, that a Sheriff or his officer may justify themselves by pleading the writ only, because that is sufficient for their excuse, although there le no judgment on record to support or warrant such writ. But if a stranger interposes and sets the Sheriff to do an execution, he must take care to find a record that warrants the writ and must plead it. So must the party himself at whose suit an execution is made.

No trespass is excused but what is inevitable. Justice Peak in the case of Ives vs. Lucas and Thompson, 1 C. & P., 7, holds the following language : “ As long as a judgment exists, it protects those who seize property under execution issued under it. And if the judgment is set aside no action lies against the Sheriff for anything done under it, while it remained in existence.— And he further said that the setting aside the judgment did not make the Sheriff’s acts void by relation.

In Buller’s Nisi Prius, pages 82 and 83, it is declared, that when the subject matter of the suit is within the jurisdiction of the Court, but the want of jurisdiction is as to the person or place, unless the want of jurisdiction appear on the process to the officer who executes it, he is not a trespasser; contrary, when the subject matter is not within its jurisdiction. The same doctrine is held in Savacool vs. Boughton, 5 Wendell 170.

Judge Marcy says : “ Where the Court issuing the process has general jurisdiction, and the process is regular on its face, the officer is not, though the party may be affected by an irregularity in the proceedings. Where a judgment is vacated for an irregularity the party is liable for the acts done under it; but the officer has a protection of his regular writ.” Citing 1 Lev. 95. 1 Sid. 272. 1 Strange, 509. The case just cited was decided upon the following fads as set forth in the pleadings. The plaintiff declared in trespass for assault, battery, and false imprisonment.

The defendant pleaded a justification, that he was a constable, by virtue of an execution issued by a Justice of the Peace, on a judgment rendered against the plaintiff, that he arrested the plaintiff and committed him to jail.

The plaintiff replied precludinon because.previous to the rendition of the judgment set forth by the defendant, the Justice who rendered the same did not issue any process for the appearance of him, the plaintiff, in the suit in which judgment was rendered, that the judgment by confession was not entered by the Justice with authority of the plaintiff, nor did the parties in the suit appear before the Justice and join issue pursuant to the provisions of the $50 act. To this replication the defendant demurred, and the plaintiff joined in the demurrer.

Here we see that no service of process was effected upon the party ; but because the Court, although one of limited jurisdiction, had jurisdiction of the subject matter, the officer who executed the process under the judgment, was held justified. And the Court cites by way of sustaining its decision the very language hereinbefore set forth, as quoted from page 83 of Buffer's Nisi Prius. The case of Goft vs. Mitchell, 7 Blackford, 270, confirms this doctrine of holding the officer harmless, and extends it to a case where the Sheriff even had notice of the irregularity of the process.

The Court say: “ The writ was legal upon its face, and shewed jurisdiction in the Justice. The law is that a writ having these characteristics, however irregularly issued even though there be no judgment on which to found it, is a justification to the.officer acting under it. Nor did the notice given to the defendant before he completed the execution of the writ, affect his authority. He was not bound to look beyond his process.

Had he seen fit to assume the responsibility of judging for himself, whether the circumstances under which the writ issued would have excused him for not obeying it, he might have done so, and perhaps the excuse would have beep sufficient.

But he was not bound to run the hazard.” There might be many other cases cited to shew the soundness of the proposition we have asserted ; but will conclude the citations after referring to 546 Comyns Digest, vol. 6, 5th American ed.: “If the defendant justifies by judicial process out of a Superior Court it is sufficient to allege the judgment, writ of ca. sa. and warrant thereon to the officer. And the officer himself need not allege the judgment, only the writ and warrant.” 3 Lev. 20. 1 Salk. 409.— See also 10 John., 138. 10 Coke, 76, case of the Marshalsea, 10 Peters U. S.

Rep., 476. 6 Peters, 17. 1 Levintz 95. lb. 173. From these authorities it would seem there is a distinction taken as to the protection afforded a party and the officer executing the process of the Court, the one being supposed to act in accordance with his volition and consequently amenable for acts done voluntarily, the other from a coercion arising from, and incident to the mandate of the writ or process directed to him. The Sheriff is a ministerial officer, and no action should lie against him merely in discharge of his duty, unless he exceed that duty when he becomes liable as a party.

He is protected in the execution of process emanating from a Court of general jurisdiction, provided there appears on the face of the process that the Court has jurisdiction of the subject matter (5 Wendell 170,) nor was it for Camp to decide whether the judgment rendered against Manly and wife, administrators, was erroneous or void, regular or irregular. The judicial power of a Sheriff in this country is still less than in England, and his duty is obedience to the process of the Court, This principle is illustrated in 6 Harrison and Johnson 301. The action was trespass against the Sheriff.

Property was attached by him, under writs from the creditors of M. No person appeared to defend the suit, the property was condemned,fieri facias issued and sale. R. had notice of the service of the attachment, and at the time of service had notified the Sheriff of his claim to the property attached, and brought his action of trespass against the Sheriff.

The Court held that the Sheriff was not responsible for a tort which as a public officer he is bound to perform — that he acted in obedience to the mandate of the law, and it would be strange if the law whose mandate he obeyed should make him responsible for such obedience — that the party in this case had notice ofthe attachment and had a right to appear in Court, and move to quash it.

Indeed so far is this doctrine of protection to the officer carried that in 1 Levintz 95, we find that even after judgment vacated, the officer is excused for executing the writ, and in 3 Cranch 300, it is laid down by Judge Marshal that a judgment obtained by fraud will protect the officer for acts done under it, though not the parties.

It must be conceded we think that the writ in this case was legal on its face, shewing jurisdiction of the Court as to the subject matter of the suit, issued from a Court of general jurisdiction at a proper time and returnable in accordance with law, and it would be going too far to adjudge that the Sheriff should be held responsible for any error of the Court, which rendered the judgment under which execution issued. Nor can we well perceive hotv (he Sheriff was a •party to the proceedings had in the Court, in the case of the Union Bank and the administrators of Parkhill.

It is true that a Bill in Chancery is introduced in the bill of exce ptions, in which bill Camp is one of the defendants, but there is no evidence that Camp had legal notice of the filing of the bill for an injunction. And supposing he had and the injunction Was refused, could he not with propriety have taken the action of the Court as his guide and regarded it protanlo as another judicial decision, as to the regularity •and legality of the judgment rendered against the administrators of Parkhill.

So too with the order df the Court, that the property of the estate of Parkhill be taken possession of by Camp, and that the letters of administration granted to Martha Manly be revoked. All this took place before the judgment rendered against Manly and Wife as general administrators, and though Camp may have had notice, still it would be inequitable and impolitic to have required Camp to look behind the judgment, and to hold him responsible for what was the error of the Court. These proceedings too were collaterally drawn in question in the Court below, and in the case of Tolmer vs.

Thompson, 2 Peters 163, the Court say : That proceedings brought before a Court collaterally, “ are by no moans subject to all the exceptions which might bj taken on a direct appeal. They well may be considered judicial proceedings; they were commenced in a Court of justice, carried on under the supervising power of the Court, and to receive its final ratification! The general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question and it appears on the face of them, that the subject matter was within the jurisdiction of the Court they are voidable only.

The eri'ors and irregularities if any exist, are to be corrected by some direct proceedings either before the same Court to set them aside, or in an appellate Court.

If there isa total want of jurisdiction, the proceedings are void and a mere nullity, and confer no right and afford no justification, and may be rejected when collaterally drawn in question.” In Voorhees vs. the Bank of the United States, 10 Pet. 474, the Court say: “If the validity of a sale under its process, can be questioned for any irregularity preceding the judgment, the Court which assumes such power places itself in the position of that which ren* dered it, and diprivis it of all power of regulating its own practice or modis of proceedings in the progress of a cause to judgment.” The next question arising for the consideration oí the Courtis, should the plaintiff in the Court below have been estopped from a recovery against Camp, owing to the admissions and conduct, of Moseley one of the parties.

It is not the intention of the Court to go any length into the doctrine of estoppel in pais, which has been so ably and learnedly argued in this and another case at' bar during the term, but simply to advert to some of its general principles. We find while other classes of estoppels have not received much or great favor from the Courts those in pais have been much extended and received a liberal, enlarged and we might add an enlightened construction.

The technicalities incident to estoppels are gradually giving way to considerations of reason and practical utility, and the Courts of the present day seem disposed to give force and efficacy to a doctrine which is based upon principles of justice and the purest morality. In the case ot the Welland Canal Company vs. Hathaway, 8 Wendell, 483, Judge Nelson remarks that the acts and admissions of a party operate against him in the nature of estoppel “ when in good conscience and honest dealing ho ought not to be permitted to gainsay them.” In Stevens vs.

Baird, 9 Cowen, 274, the constable had an execution against Benedict, and Stephens pointed out to the offi-c r a qi a itity of lumber, one-fifth of which he said belonged to Benedict. . On the levy being made, a receipt for the property was made by Stephens, which was afterwards sold under the execution, Baird becoming the purchaser, Stephens standing by at the sale and giving no notice of his claim to the whole property. In a suit between Stephens and a purchaser it was htld that Stephens was estopped from denying that Benedict owned one-fifth part of the lumber. In Gregg vs.

Wells, (10 Ad. and Ellis, 90,) it was held that if the owner of the goods stand by and voluntarily allow another to treat them as his own by which moans a third person is induced to purchase them bonajide the former cannot recover them from the purchaser.

Lord Denman said in this case: “ A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has assisted in deceiving.” “The party is only concluded against shewing the truth, or asserting his legal rights when that would have the effect of doing a wrong through his means to some third person.” Hill Rep., 225.

Admissions arising from demeanor and conduct are conclusive against the party, where he has received a benefit therefrom or prejudiced another. 2 Saunders Pl. and Ev., 55. Mr. Starkie in his work on Evidence, vol. 2, 37, uses this language : “ In general admissions may be presumed not only from the declarations of a party, but even from his acquiescence or silence, as for instance, when the existence of a debt or a particular right has been asserted in the presence of a party, and he has not contradicted it, such acquiescence and silence will amount p rima facie to an admission of a debt or right.

So an acquiescence and endurance where acts are done by another which if wrongfully done are encroachments and call for resistance and opposition, are evidence of a tacit admission that such acts could not be legally resisted.” Now what has been the conduct of Moseley in relation to the alleged trespass of Camp. The evidence shews that when he, Camp, proceeded to make the levy under the execution, a list of the ne-groes was furnished him by Moseley. There was no denial on his part as to the right of Camp to levy.

There was indeed more than mere “ acquiescence or silence,” the furnishing the list was an affirmative act, and not merely negative — it enabled. Camp to carry out the levy in thus virtually designating the slaves to be levied upon. He stands negligently by and there is a degree o f negligence amounting to culpability, and allows the Marshal to make the levy, so far as appears by the testimony without protest or dissent.

It is not contended that the conduct of Moseley was fraudulent or wilfully intended to deceive Camp ; but still we must in accordance with the principles laid down, ask if it was such as to produce erroneous impressions on the mind of Camp, as to his future movements in relation to the levy.

There is no claim put m for the ne-groes by virtue of our statutes, and at the sale Moseley took an active part, assisting the Marshal, and made no dissent to the sale; but advised people to bid, and when the sale was forbade by Archer he disapprobated the act, and it appears too that the Marshal acted in accordance with the views of Moseley as to the details of the sale. Taking his whole conduct together, his acts, admissions, and declarations at the sale, it is very evident they are clearly inconsistent and at variance with the claims he now asserts.

It is true the levy was the trespass if any was committed, and no claim was as serted at the time ; but there is direct connivance — the possession of the negroes by Camp was a continuing trespass and acquiesced in by Moseley. Ought he not now to be estopped from gainsaying his admissions, and when too he stood negligently by and allowed a person to do

an act which he might not have done had he received any indication that he would be held legally responsible for that act ? We think he should be, and that Camp should not be amenable as a trespasser. The effect ot an estoppel, whether legal or equitable, is the exclusion of evidence, and its existence must always be a question of law for the Court, and not of fact for the jury. 2 Smith’s Leading Cases, 469, citing Lewis vs. Carstair, 5 Watts and Sergeant, 209, and we therefore think the Court erred in leaving the admissions of Moseley to the jury.

It is contended that even allowing the admissions of Moseley they cannot affect the rights of his co-administrator and administra-trix. But if there are'several administrators they are regarded in the light of an individual person. “ They have a joint and entire interest in the effects of the intestate, which is incapable of being divided, and in case of death such interest shall vest in the survivor without any new grant from the Court.” 1 Williams on Executors, 591.

Acts done by one of several executors or administrators relating to the delivery, sale, or release of the testator’s or intestate’s goods are the acts of all. Wheeler vs. Wheeler, 9 Cowen, 34.— So two of three executors or administrators may compromise a claim and release a debtor to the estate without the concurrence and contrary to the express wish of the other. Murray vs. Blatchford, 1 Wendell, 583.

There was formerly a distinction as to the acts and powers of administrators and executors, on the ground that the executor derived his authority from the act of the deceased, while the administrator derived his from the Ordinary, his appointment being considered in the light of an office.

But, these distinctions have been overruled, and now joint administrators stand upon the same footing as executors, 407 Toller on Ex. 1 McCord, 492.— We deem it unnecessary to proceed further in the consideration of the case either as to the instructions given or those refused, being satisfied that the judgment of the Court below should be reversed.