NELMS v. HILL. (Supreme Court of Alabama. January 31, 1889.) 1. SET-OFF And Counter-CLAIM-DEMANDS SOUNDING IN DAMAGES. Under Code Ala. 1886, § 2678, providing that mutual demands, not sounding in damages, may be set off by defendant, in an action on a note defendant cannot set off damages arising from a trespass committed by the plaintiff in wrongfully seizing and carrying off defendant's stock. 2. TRESPASS-DAMAGES-SPECULATIVE. Damages for injury to one's farming operations, by seizing and carrying away his stock used in farming, are too remote and speculative to be recovered in trespass. Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge. In this case three several actions were brought by S. H. Hill, suing as surviving partner, against C. W. Nelms; each being commenced in a justice's court, and founded on a promissory note executed by defendant, of which the plaintiff claimed to be the owner by assignment. The three cases were consolidated in the circuit court, and the defendant interposed a special plea of setoff. The court sustained a demurrer to this plea, and its judgment thereon is now assigned as error. The opinion states the averments of the plea. Geo. P. Harrison, for appellant. W. J. Samford, for appellee. CLOPTON, J. Against the notes on which the consolidated actions are founded, the defendant seeks to set off the damages suffered by plaintiff having seized and carried away his horses and mules. The plea, as originally framed, substantially avers that the notes were given in consideration of guano sold to the defendant for the purpose of making a crop, with the understanding and agreement that they should be paid out of the crop grown therewith; and that a few days after the delivery of the guano plaintiff wrongfully seized and carried away defendant's horses and mules, whereby he was deprived of the means of making the crop, which was loss to him. Though by the statute mutual demands, whether liquidated or unliquidated, may be set off one against the other, whether or not the defendant has the legal title, demands sounding in damages merely are in terms excluded. Code 1886, § 2678. The phrase, "sounding in damages merely," has been interpreted to include that class of demands where, when the facts are ascertained, the law is incapable of measuring the damages by a pecuniary standard. Wrongfully seizing and carrying defendant's stock constituted a trespass, damages for which are recoverable only in an action de bonis asportatis. In such action, not only actual and special, but also exemplary or punitive, damages are recoverable. That such cause of action is not available as a set-off under the statute has been expressly decided. As long ago as 1859, in Walker v. McCoy, 34 Ala. 659, it was held that where the defendant's cause of action is recoverable only in an action de bonis asportatis, the demand was one sounding in damages merely, and was excluded from the statute of set-off, on the ground that, vindictive damages being recoverable, the law did not furnish a pecuniary standard of measurement. This ruling was reaffirmed in Rosser v. Bunn, 66 Ala. 89, and is decisive of the unavailability as a set-off of the defendant's cause of action set forth in the plea. The plea was amended so as to limit the set-off to the special damages,— the loss or destruction of the crop,-which it is insisted are susceptible of definite ascertainment. In Walker v. McCoy, supra, the same contention was made, and ruled against. It is said: "If the defendant in this suit were the plaintiff, suing in trespass de bonis asportatis, the present plaintiff would have no right to set off the demand now in suit. He could not say; 'I will split up your demand, and bring forward my set-off against so much of it as is for special damage. Such a course could not be allowed, without a plain violation of the statute, which excludes the right of set-off where the demand sounds in damages merely. Thus, the result of the position taken for the defendant would be to make his demand within or without the statute, at his election." Moreover, the plea claims to set-off only the damages suffered by the loss of the crop. It is well settled that damages to one's farming operations are too remote and speculative to be recoverable in an action of trespass for wrongfully seizing and carrying away his stock while engaged in farming. Street v. Sinclair, 71 Ala. 110; Higgins v. Mansfield, 62 Ala. 267; Burton v. Holley, 29 Ala. 318; Wilkinson v. Ketler, 59 Ala. 306. Affirmed. QUILLMAN v. GURLEY. (Supreme Court of Alabama. January 31, 1889.) APPEAL-REVIEW-WEIght of EVIDENCE-SPECIAL FINDING-EJECTMENT. Under Code Ala. 1886, §§ 2743-2745, providing that the parties in ejectment may waive a jury, and submit the issue of fact to the court, whose finding shall have the same effect as a verdict, and may be either general or special, and, "if there is a special finding of facts the supreme court must, on appeal, examine and determine whether the facts are sufficient to support the judgment," the supreme court cannot review the sufficiency of the evidence to support a judgment, in the absence of a special finding entered on the minutes. Appeal from circuit court, Madison county; H. C. SPEAKE, Judge. CLOPTON, J. This case, being an action of ejectment, was tried by the circuit court without the intervention of a jury. Under the statutes the parties may waive a trial by jury by agreement in writing, and submit the issue of fact to trial and determination by the court, in which case the finding of the court upon the facts has the same effect as the verdict of the jury. The finding of the court may be general or special, unless a special finding of the facts is requested by both or one of the parties, and, if so requested, the court must state in writing the facts as it finds them, and such statement, with the judgment of the court, must be entered on the minutes. Either party has the right, by bill of exceptions, to reserve any ruling, opinion, or decision of the court, to which an exception could have been reserved if a trial by jury had not been waived, and is entitled to an appeal from the judgment of the court as if it had been rendered on the verdict of the jury. If there is a special finding of facts, the supreme court must, on appeal, examine and determine whether the facts are sufficient to support the judgment, (Code 1886, §§ 2743-2745;) the operation of the statute being that, when the parties waive a trial by jury, and consent that the court may be the trier of facts, there shall be the same right of appeal and reservation of question for revision on appeal as if there had been a trial by jury, and the judgment had been rendered on their verdict, and no other or greater. The appellate court cannot review the sufficiency of the evidence to support the judgment, except in the single instance of a special finding of the facts entered on the minutes, as provided by the statute. A comparison of the sections of the Code of 1886 with the corresponding sections, 3029-3031, Code 1876, shows that, while there is some change in the language and the collocation of phrases, there are no changes in any material respects. We must presume that by the substantial re-enactment the legislature intended the statutes should receive the same judicial construction which had been previously placed upon them. By the uniform construc-. tion of the sections of the Code of 1876, when the finding of the facts was general, they were construed as attaching to it the quality of conclusiveness in that respect when assailed on appeal, as attached to the verdict of the jury; and in such case this court has uniformly declined to review and dẹ termine the sufficiency of the evidence to support the judgment. The decision of the court was regarded as the equivalent of the verdict of the jury, and not reviewable on appeal or error. Calloway v. State, 75 Ala. 37; Bell v. State, Id. 27; Knowles v. State, 80 Ala. 9; Summers v. State, 70 Ala. 16. The finding of the court in the present case is general; there does not appear on the minutes any special finding of the facts. McCarthy v. Zeigler, 67 Ala. 43. Unless there was a special finding entered on the minutes, a review of the evidence and examination of its sufficiency to support the judgment would be a usurpation of jurisdiction. We must therefore decline to examine and determine the sufficiency of the evidence to support the judgment. Affirmed. BRYAN et al. v. KELLY. (Supreme Court of Alabama. January 31, 1889.) 1. BOND-PLEADING-ACTION ON BOND-PROOF OF EXECUTION. Code Ala. § 2769, provides that every written contract, the foundation of the suit, purporting to be executed by the party sought to be charged, is evidence of the existence of the debt, or that the party undertook to perform the duty for which it was given, and was made on sufficient consideration, but may be impeached by plea. By section 2770 such contract must be received in evidence without proof of execution, unless its execution be denied by plea. Held that, in an action on the official bond of a constable, where the bond is set forth in the complaint as the foundation of the suit, and purports to have been executed by defendants, and neither its consideration nor execution is impeached by plea, it is admissible in evidence, though it was executed without statutory authority. 2. EXECUTION-CLAIM OF EXEMPTION-FILING. Code, § 2521, relating to exemptions, provides that the defendant in person, or by his agent, may, at any time after levy and prior to the sale, file with the officer making the levy a claim in writing. Held that, a delivery by the claimant of the verified claim to the wife of the constable, with instructions to deliver it to her husband, is a filing, within the meaning of that section, where she actually delivers it to him. 3. SHERIFFS AND CONSTABLES-ACTION ON BOND-EVIDENCE-ADMISSIONS OF PRINCIPAL OBLIGOR. An admission by the constable that he received the claim is admissible, in an action on his bond against himself and his sureties, for damages from the sale of exempt property, as against him, conceding that it is inadmissible against his sureties. Their remedy is by a charge limiting and confining its effect to the constable alone. 4. SAME-ADDITIONAL BOND-LIABILITY BEFORE APPROVAL. An attachment was issued October 17th, claim for exemption was filed November 19th, and an additional bond, the one in suit, was given by the constable, and approved November 28th, and two days thereafter the property was sold. Held, under Code, § 284, relating to additional bonds of officers, which provides that such additional bond shall be of like force and obligation, from the time of its approval, as the first official bond, the claimant cannot recover on such bond damages arising from the acts of the constable prior to its approval. 5. SAME-EVIDENCE-WRIT OF ATTACHMENT. The attachment was issued generally against the estate of the defendant therein, and failed to state that the amount claimed to be due was for rent and advances, or any statutory grounds for the enforcement of a landlord's lien, against which the goods levied on would not be exempt, nor did it describe or recite the substantive averments of the affidavit. Held, that the affidavit was not admissible to show that the nature of the debt was such as authorized the constable to disregard the claim for exemption, as it was not sufficiently described in the attachment to authorize him to look to it. 6. SAME AFFIDAVIT IN ATTACHMENT-DAMAGES. Code Ala. § 273, requiring the plaintiff, before entitled to recover, to show that he had been injured by the act of the constable, the affidavit was admissible to show that plaintiff had not been injured by showing that the attachment was in fact issued for the enforcement of a valid and subsisting landlord's lien, and that the claim of exemption was frivolous. 7. SAME-BREACH OF BOND-NOMINAL DAMAGES. The disregard of a claim for exemption, by selling the property in satisfaction of a lien which prevails against it, when the claim for exemption is in law and fact frivolous, is not such a breach of the official bond as will entitle the owner to recover nominal damages, in the absence of proof of actual damages. Appeal from circuit court, Cullman county; H. C. SPEAKE, Judge. Action by John W. Kelly against W. R. Bryan and others, on a constable's bond for selling exempt property. As to the placing of the declaration of exemptions in the hands of the constable, the court charged the jury "that, if plaintiff's claim of exemption was delivered by him to Bryan's wife, with the request that she would deliver it to her husband, and she delivered it to him, this would be, within the meaning of the law, a sufficient lodgment with the officer making the levy." To the giving of this charge by the court the defendant duly excepted. The defendants then asked the court to give the following charges, and reserved an exception to the refusal to give each of them: "(1) If the jury believe the evidence, they must find for the defendants. (2) If the jury believe the evidence, they must find a verdict in favor of the defendants who are sureties on Bryan's bond. (3) If the jury find from the evidence that plaintiff's claim of exemptions was lodged with the wife of said Bryan, the constable making the levy on the property, and was not lodged with the officer by the plaintiff, his agent or attorney, then the making of the claim, and leaving it with the wife of the officer, would not put the officer in the wrong in making the levy and sale, and plaintiff would have no right to recover in this case. (4) If the jury find from the evidence that the writ of attachment was issued to enforce a landlord's lien on the property levied on, then it was not necessary for said Bryan, the constable, to regard the claim of exemptions, and his sale of the property under the attachment would be no violation of plaintiff's rights." Judgment for plaintiff, and defendants appeal. * Code Ala. 1886, §§ 2769, 2770, provides that "every written instrument, the foundation of the suit, purporting to be executed by the party sought to be charged, * * is evidence of the existence of the debt, or that the party undertook to perform the duty for which it was given, and that it was made on sufficient consideration," and that such instrument "must be received in evidence without proof of the execution, unless the execution thereof is denied by plea verified by affidavit." Code 1886, § 284, relating to additional bonds which may be required of officers, provides that “every such additional bond is of like force and obligation * * * from the time of its approval." George H. Parker, for appellants. W. T. L. Cofer, for appellee. CLOPTON, J. A writ of attachment was issued by a justice of the peace in favor of Whorton and Brittain against the estate of appellee, and was levied by appellant Bryan, as constable, on personal property of the defendant in attachment, which was removed from the premises, and afterwards sold by the constable. After the levy, and before the sale, appellee filed in the office of the judge of probate a declaration and claim of exemption, and, as he alleges, filed the same with the officer making the levy. The action is brought by the appellee on the official bond of the constable, against him and his sureties, and the breach assigned, in respect to which any evidence was introduced, is that the constable disregarded the claim of exemption, and sold the property. The other breach is that the constable refused to accept a replevy bond which was tendered by plaintiff, but no evidence was introduced to show that such bond was tendered, and no question arises on this breach. The question in regard to the validity of the bond was raised by objections to its introduction in evidence; the specific grounds of objection being that it shows on its face that it was taken without authority of law, and it is not shown by what authority it was required. The bond recites that the constable was required to give a now bond, and it is set forth in the complaint as the foundation of the action, and purports to be signed by the defendants. Though an official bond, executed without statutory requirement as a condition precedent to entering into or continuing in the office, is ordinarily regarded as voluntary and gratuitous, when it is set forth in the complaint as the foundation of the action, and purports to be executed by the defendants, and its consideration is not impeached by plea, nor its execution denied by verified plea, it may be properly admitted in evidence to go before the jury. There is no plea impeaching the consideration of the bond, or denying its execution. Code 1886, §§ 2769, 2770; Johnson v. Caffey, 59 Ala. 331. The declaration and claim of exemption was filed in the office of the judge of probate, November 18, 1885. The plaintiff testified that on the next day he went to the home of the defendant constable, and, finding him absent, gave the claim to his wife, and requested her to deliver it to him, and that the constable afterwards admitted that he had received it. Defendants severally objected to the admission of the constable being received in evidence. It was clearly competent as an admission against himself, even if it be conceded that it is not admissible against his sureties. In such case, it would be the better practice to limit the operation of the evidence when received, but, this not being done, a co-defendant's only remedy is by a charge limiting and confining its effect and operation to the defendant making the admission. Lewis v. Lee Co., 66 Ala. 480. Section 2521 of the Code of 1886 provides that "the defendant in person, or by his agent or attorney, may, at any time after the levy and prior to the sale, file with the officer making the levy a claim in writing, verified by oath." If the evidence be believed, the wife of the constable became the agent of the plaintiff to deliver the claim of exemption; and, if actually delivered by her to the constable, it was, in the meaning of the statute, filed with the officer making the levy by the agent of the defendant in attachment. The attachment was issued October 17, 1885, and was levied on the 5th day of November thereafter. The claim of exemption was filed with the officer November 19, 1885, and the bond sued on was approved November 28, 1885. The property was sold two days thereafter. It is manifest that the plaintiff is not entitled to recover on the bond any damage suffered from any act of the constable prior to the approval of the bond, from which time, under the statute, it took effect. Code 1886, § 284. The material question in the case is whether the constable was authorized to sell the property in disregard of the claim of exemption, and, if not authorized, what damage did the sale cause the plaintiff? The question arises on the exclusion of the affidavit on which the attachment issued when offered in evidence by the defendants, the plaintiffs having previously introduced in evidence the attachment itself. In McLaren v. Anderson, 81 Ala. 106, the question arose on a proceeding to set aside a sale of a homestead under an execution. It was held that a sheriff could not inquire behind the face of the process in his hands, and determine for himself that the judgment rests on a cause of action against which the homestead exemption is unavailing. But it is also said: "If the judgment and execution had disclosed on their face that the recovery was for a tort, it would have been the duty of the sheriff to disregard the claim as frivolous, and to proceed and make the sale. The execution, however, gave him no such information. It could not do so without going beyond the judgment entry, which the clerk was not authorized to do. The writ of attachment is very informal and irregular. It does not state that the amount claimed to be due is for rent and advances, nor any statutory ground on which an attachment is authorized to issue for the enforcement of a landlord's lien, and is issued generally against the estate of the defendant. Had it described or recited the substantive averments of the affidavit on which |