The record brings up for review only the rulings of the trial court upon the pleadings. The complaint was amended by striking out the count in trover, leaving only the first and second counts of the complaint. The first count is in trespass, and in the usual form, as prescribed by the Code. All assignments as cause for demurrer to this count, or to the complaint as a whole, were properly overruled.
There is some contention as to whether the second count is in case or trespass. Trespass and case may be joined under section 2673 of the Code. The averments of the second count show that the plaintiff was not in possession of the property, and did not have the right to the immediate possession when the levy complained of was made; but, whether in case or trespass, the demurrer to the second count raises the question as to its sufficiency to show a cause of action. A creditor who causes an attachment to be wrongfully levied upon property is equally guilty of a trespass as the officer who makes the levy. The second count does not affirm the fact that the prior attachments sued out against A. <T. Langley & Brother, and which were levied upon the stock of goods, the subject of controversy, were wrongfully sued out, or wrongfully levied. Applying the rule that the pleadings must be construed strictly against the pleader, we are of opinion that this count shows that, the sheriff being rightfully in possession of the stock of goods, by virtue of the prior levy at the suit of other creditors, the defendant sued out at his own instance an attachment against Langley & Brother, and wrongfully caused the same to be levied upou the goods in question, and had the goods sold under his attachment, to the damage of the plaintiff. The goods being in “gremio leáis,” and plaintiff *219not being in actual possession, and not baying tlie immediate right of possession according to tlie averments of bis second count, lie could not maintain trespass. — Davis v. Young, 20 Ala. 151; Nelms v. Bondurant, 26 Ala. 341; Harmon v. McRae, 91 Ala. 409.
Will case lie against one who causes an attachment to be wrongfully levied upon goods which are in gremio legis ? The ownership of a defendant debtor of his chattels is not divested by the levy of an attachment — the levy only creates a lien upon the property in favor of the plaintiff. — Code, § 2957. The lien is dependent upon the judgment to be recovered, and when' recovered it relates back to the levy. Scarborough v. Malone, 67 Ala. 572 ; Cordeman v. Malone, 63 Ala. 556. Any loss or damage sustained by the owner, the result of neglect or misconduct on the part of the sheriff, or the wrongful act of any other person, while the goods are rightfully in the possession and under the control of such sheriff as an officer of the court, may be recovered by the owner by an action on the case. Property claimed by a vendee of a defendant debtor, in some instances, may be rightfully levied upon at the suit of one creditor, and not subject to attachment at the suit of another person. When property of a defendant debtor is in the possession of the sheriff, by virtue of a levy of attachment or execution, and subsequent writs of attachment or execution are received by him against the same defendant, returnable to the same court, and to which the property is liable, a second levy by the sheriff, and indorsement thereof on the writ, subject to the prior levy, does not disturb or in any manner interfere with the custodia legis under the first levy. If the sheriff should undertake to displace or subordinate the prior lien secured by the first levy, he might render himself lable to the creditors holding the prior lien. — 67 Ala., supra; 63 Ala., supra. This principle, however, is wholly unlike those in which, to prevent a conflict in the jurisdiction of different courts, it is held that property in gremio legis of one court can not be seized under process of another court, or where replevy or other bonds have been executed by the defendant in the suit, or by a stranger, by which the actual custody of the property is taken from the officer, and placed in the possession of the obligors, and held upon condition that the property be returned, &c. In cases of the latter character, the property can not be levied upon by attachment or executions against the original debtor or the claimant. The reasons are fully stated in the authorities cited. Rives v. Welborne, 6 Ala. 38 ; Pond v. Griffin, 1 Ala. 678; *220Cordaman v. Malone, 63 Ala. 558; Kemp v. Porter, 7 Ala. 53 ; Dollins v. Lindsey, 89 Ala. 219; Harmon v. McRae, 91 Ala. 409.
We are of opinion that the second count, when construed as an entirety, is in case, and is sufficient. True, the first clause would indicate an intention on the part of the pleader to count in trespass ; but the further averments show that the injury complained of, and which damaged him, was the wrongful levy and sale of the property caused by the defendant, under his attachment, while the property was rightfully in the possession of the sheriff under prior attachment. As we have seen, damages sustained under such circumstances, give a cause of action to recover which case will lie.
Section 2956 provides, in cases of attachment issued by justices of the peace, for an amount exceeding the jurisdiction of the justice, and not more than the amount of the penalty of the constable’s bond, that the justice may, by indorsement on the process, “direct that it be executed by the constable of the precinct, who shall return the same to the court to which it is returnable.” Section 2958 provides for the sale of the property levied upon by order of the court, and “the proceeds of the sale be retained by the sheriff,” &c.; and under section 2959 the sheriff is authorized to sell property, under certain conditions, without an order of court. We are of opinion that the property levied upon by the constable was properly delivered by him to the sheriff, and that when so delivered, it was in his possession as sheriff, and not as a mere bailee to the constable. The statute does not expressly direct the constable to turn the property over in such cases to the sheriff, but a fair construction of the several statutes, and of the duties imposed upon the sheriff, and of the fact that the writ should be directed to the sheriff, leads to the conclusion that the authority of the constable in such cases ends when he delivers the property to the sheriff, and makes his return to the proper court.
It is unnecessary to adjudicate in detail all the questions raised by the assignment of errors. We at first thought, and so stated, that the case ought to be reversed; but after a more careful examination of the pleadings, we are satisfied that the conchisions of the trial court are free from error.
Affirmed.