The first question presented upon the record, is, as to the admissibility of the two writs of habeas corpus and the returns thereon. In order to determine this question correctly, it may be necessary to advert to the character and position of the case at the time the evidence referred to was offered. The plaintiff in error was attempting to charge the defendant in error for failing to make the money upon a writ of execution against Donald Campbell, which he had received as sheriff. His own returns had been introduced, showing that he had levied the execution on certain negroes, on the 17th October, 1849, and again on the same negroes on the 5th January, 1850, the execution being returnable on the second Monday in March, 1850. A prima facie liability was thus raised against the defendant for the value of the negroes, which he could only relieve himself from by showing a state of facts which would repel the presumption arising from the levies.
It is insisted, however, on the part of the plaintiff in error, that the sheriff should not be allowed to make proof of this character — that it would be contradicting his return, which must be held conclusive against him, until set aside or amended. We do not understand the rule to go this length, (Bancroft v. The Governor, 11 Ala. 605;) but it is unnecessary to inquire into the correctness of this position, as we do not consider that this evidence tended in anywise to dispute or contradict the fact of the levy: it was matter entirely outside of it; and the case of The Governor v. Gibson, 14 Ala. 321, is conclusive upon the point, that testimony of this character may be admitted.
But it is said, that the proceedings under which the negroes were taken from the possession of the sheriff, and subsequently discharged, were void for want of jurisdiction, and for that reason they afforded no protection to the officer in yielding obedience to their mandate; that the proceedings were by habeas corpus ; that the question involved was the right of the negroes to freedom, and that this question could not be tried in that mode.
It is true, that this court has decided, that when negroes are held in servitude and claimed as slaves, they cannot by habeas corpus try the right of the person claiming to be the master or owner to hold them, (Fields v. Walker, 17 Ala. 80,) and we are satisfied with the correctness of that decision; but it does not necessarily follow, that the question of freedom may not be tried *152in that mode, where the relation of master and slave is not involved ; and the reasoning of the judge who delivered the opinion of the court in the case referred to, is wholly inapplicable to a case where the right of the master, as such, is not litigated. The grounds on which the decision in Fields v. Walker is rested, are, that another remedy had been provided for the trial of that question, as between the person held in servitude and the person who claimed the right to his services as owner, the provisions of which appeared to have been framed with direct reference to the issue of freedom, as between them; and that, as in such case the question was one involving the right of the owner to his property, he was, under the constitution of this State, entitled to a trial by jury, which he could not have upon a habeas corpus, where the trial is by the judge alone. On referring to the statute providing for the suit for freedom, (Clay’s Dig. 542 § 19,) it will be seen, that the owner is required to enter into bond and security for the forthcoming of the slave, in which case he remains in his service until the termination of the suit, and if out of his possession, the slave himself is required to give bond and security to make good to the owner such costs and damages as he may incur in consequence of the application ; and these provisions, we think, show, that the remedy to which they belong, and which they form a part of, was not intended to apply to any other than the person standing towards the slave in the re-, lation of owner. It may be said, that the sheriff, by the levy, occupies this position for the time being, and that the legislative remedy must be asserted against him ; but it is not to be supposed that, in a case of this kind, the legislature intended the sheriff should give bond, or that by doing so he should become entitled to the services of the negro until the termination of the suit; that he should be kept in jail during that period, or that the rights of the plaintiff in execution should be jeoparded by the failure on the part of the sheriff to confine the negro, until he could be sold. A sufficient answer is, however, as we think, to be found in the nature of the right which the sheriff acquires by the levy. He gains no right to the use or service of the slave, but a mere right to keep and sell, and the law regards him as the owner, only so far as may be necessary to maintain this right. He holds him only as subject to the execution.
We apprehend that it would hardly be contended, that a *153white man not held in servitude, if levied on by the sheriff, and confined in jail, could not try the legality of his confinement by habeas corpus. Would the fact that he was levied on as a slave deprive him of the benefit of this writ, and drive him to the slow process of the statutory suit for freedom 1 The issue before the judge upon the habeas corpus, would be the legality of the confinement, and this, it is true, would incidentally involve the question of slavery ; but no right of the master or owner would be involved, and the judgment of the court discharging the party from his confinement,, would prove nothing whatever, upon the issue of freedom, between him and one claiming to be his owner; and if such would be the rule in relation to a white man, there would be no difference of principle in its application to a free person of color. In every case in which the latter is confined, he has the right to try the legality of his confinement, except in the single case where he is held as a slave by some one claiming the right to his services as master or owner, in which case, the legislature has, from motives of the soundest policy, prescribed a different remedy.
We have said nothing as to the constitutional ground on which the case of Fields v. Walker was put, as it^bviously has no application to a case where the question of ownership is not involved.
It results from the views we have expressed, that the magistrate had jurisdiction to try the legality of the confinement of the negroes levied on,* provided it did not touch the relation of owner; and as it does not appear from the proceedings, that this question was involved, we cannot say that they were without jurisdiction; and as they were valid upon their face, they afforded a protection to the sheriff.
The next question arises upon the action of the court below in admitting the deed of manumission. The general principle that the sheriff may defend himself against a rule for failing to make the money, by showing that the defendant in execution had no property out of which the money could be made, is a proposition no one can doubt; and our own decisions go to the extent that this may be done after levy, if it is shown that he has released the property or returned it to the true owner.—Leavitt v. Smith, 7 Ala. 176; Macon v. Watts, ib. 703. The principle of these decisions is, that the sheriff, by levying upon *154the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of holding them, after he has ascertained their true ownership. We can see no distinction between a levy made on free persons of color, not held as slaves at the time of the levy, and goods proper not belonging to the defendant in execution. In either case, the sheriff would be responsible in damages; and in the first case, we can conceive of no valid reason why he should be bound to retain the negroes after ascertaining the fact of their freedom, which would not require him to retain- property belonging to a third person. The statute providing the mode in which a person held as a slave may try the question of slavery, is confined to such person only, and does not affect the right of the sheriff to try that question, when the proceeding is against him, and it is involved in the issue which he makes, it may be that these principles would not apply to a case where the negro levied on was held as a slave by the defendant in execution, or by one deriving title from him during the continuance of the execution lien. This question is not presented upon the record before us, as the evidence set forth in the bill of exceptions shows that the negroes levied on in this case did not occupy that position. They were not held as slaves at the time of the levy; and we would be understood upon this point as limiting our decision to the case made by the record, and as deciding only, that where negroes not held as slaves are levied on and discharged, the sheriff, when ruled for failing to make the money, may repel the presumption arising from the levy, by showing that the negroes were free.
The execution in the case under consideration, was upon a debt which was due before the act of manumission; and under these circumstances, as that act was not based upon a valuable consideration, it was simply a gift of freedom to the slaves, and must be governed by the same rules that apply to other gifts. These considerations, however, do not apply to the child George, who was bom in a free State, and after the execution of the deed of emancipation. The condition of the mother at the time of his birth was that of freedom. She was liable, it is true, to be subjected into slavery to satisfy the claims of antecedent creditors, but this could not be done until such creditors had obtained a lien, and until that contingency happened, she must be regarded free to all the world; and the child born while she was *155in that condition, would, as a matter of course, follow the status or condition of the mother at the time of the birth.—Parks v. Hewlett, 9 Leigh 511. In this aspect, and for the purpose of showing that one of the negroes levied on was free, the deed was properly admitted.
It only remains to consider whether the court below erred in refusing to admit the petitions for the writs of habeas corpus. So far as the jurisdiction of the proceedings was concerned, we have already considered that question, in the previous part of the opinion, and as they could have been introduced only for the purpose of showing the want of jurisdiction, whether they were admitted or not, would make no difference in this respect.
There is no error in the record, and the judgment is affirmed,