The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-03-29

then this action is brought The plaintiff, title
produced for the first time the trial of the cause
and then the Sheriff brings the goods into Court
ana says he Is ready to deliver them Immediately
| If the Court should so direct.
IL seems to me, if we hold the Sheriff liable il
TINS case as trespasser when he was willing t.
restore the goods, it would be great hardship upoI
the public officer, and would be in reality enabling
party to take advantage of his own wrong. The
plaintiff, even if he was a real purchaser acted ir
such way as to deceive the public, and this de-
lDerately and for his own supposed interest. When
lll0tsOns clerk was about leaving the shop shortly
after the sale. he asked Mcdonald whether he was
to erase Iilotsons name from over the door
| Mcdonald replied " that he would let it remain
that it would be of some advantage to him." Ii
seems to me such course Of conduct should be dis
couraged. 1t hold out the vendor in false light to
the public, and gives him a false credit. In the
case before US it led the public officer into an error
the consequences of which the plaintiff now seeks
| to impose upon him. i2ia ri .dia ~ =
think the plaintiff was bound in good conscience
to give the officer something more Than his naked
| assertion, thus violently opposed by all the sur
| rounding appearances. Why was not the bill OF
sale shown, and the plaintiff 5 books upon which
I he now relies 59ea trs' i1-e eff 'r a}i
The position of Sheriff is one of great RESPONSE
bIiy If he refuses to make levy and the plaintiff
In the suit can show that the goods found the pos
session of the defendant in execution were in truth
his property, he is entitled to his debt pro
Il
action against the Sheriff for a false return of
nuta bond,' it is sufficient to put the Sheriff on
his defence for the plaintiff to show that the de-
fendant in execution was in possession of property
sufficient to satisfy the execution. Magne Us. Ly-
man, Wendell, 81. l do not find anv textuaI
provision in our laws authorizing sheriff to de-
mand bond of indemnify and l have doubts
whether he has legal right to dose. If, on the
other hand, he is to be held liable, as wrong
for taking property which the owner has been sur
hvvIo Il
sheriff, his double responsibility becomes grevous
to degree that appears to me unreasonable
think very great weight is to be given to what was
said in argument, by counsel, respecting what is
properly characterized by the Chief Justice as a
defect in our jurisprudence. At common law,
when the sheriff is met by the assertion of an ad-
verse title, he may impanel jury to inquire in
whom the property is vested and their return will
excuse him in an action of trespass. Bacon's
Abridg: perbo Sheriff Bailey Us. Bates, s John
and ought not to be held with the same severity to
party whose conduct was imprudent and well
calculated to deceive the officer. a
If this case were tested by the rules and princ-
pies OF the common law, which has been invoked
in argument by the plaintiffs counsel. incline
to the opinion that the sheriff would be permitted
to return the goods upon payment of costs and mere
nominal damages. Iquestion if the action of tres
pass would lie in such case for, to sustain that
action it seems the taking must be unjustifable
Hence it is declared, by respectable authority that
It sheriff take the goods of Avunder writ of
f. ta., after he has committed an act of bankruptcy,
and afterwards the goods assigned under a
commission OF bankruptcy: an action of trespass
does not lie against the officer, although the goods
DO by relation become the property of the assgnees
from the time of committing the act; for as the
officer might not know that A. had committed an
act OF bankruptcy, or that an assignment of the
goods would be made, and as it was his duty to
execute the writ, it would be unreasonable to pun
lsh him as wrongdoer. Bacon's Abridg. Uerbo
Trespass. So if A. mix his corn or money with the
corn or money of B., so that they cannot be disn-
gushed, and b. takes the whole, trespass does not
lie, as there was fault on the part of Alb And
SO should think a party would not be entitled to
bring an action OF trespass against the sheriff who
had left his goods in the possession of the defendant
In execution, in such manner as to give him all
the appearances of ownership. - - fr.-,..- & |
Ihen, II the taking was not unjustiiabe, the |
plaintiff would be driven to an action of trover ;
and find it asserted by the same author that in
some cases in that action it is allowed to bring the
thing into Court. But herein,' he remarks 'this
distinction is to be observed if trover is brought for
specific chattel of an unascertained quantity and
quality, and unattended with any circumstances |
that may enhance the damages beyond the real |
value, but that its real and ascerained value must
be the sole measure of damages, then the specific |
thing demanded may be brought into Court. But |
where there is an uncertainty either to the quail
y or quantity of the thing demanded or there is any
tort accompanying ii, that may enhance the damage
above the zeal value of the thing and there is no
rule whereby to estimate the additional value there
it shall not be brought into Court" So in Browne
on Actions, it is said sc If the defendant return the
goods the plaintiff will only recover such damages
as he has actually sustained but he at all events
entitled to nominal damages, as the return of the
goods does not cure the conversion, but merely
goes in mitigation of damages and if there be a
dispute as to the quantity of the goods converted
and the plaintiff refuses to receive back the portion
offered, the Court will, upon application for that
purpQD, stay the proceedings on delivery of such
portion OF the goods and payment of costs and
damages, and if the plaintiff refuse to accept such
terms, will permit the defendant to deliver up
the goods, the plaintiff to pay the costs incurred
to such delivery, in the event of his
not recovering in respect of some other articles
than those delivered up, or more than nominal
damages in respect of those delivered browne
on Actions; Tr0ver, p. 425.
The power Of our Courts cannot be less than
that Of those of common law to mould the remedy
to the justice of the case
To these remarks may add, that am not pre-
pared to say that there was such legal change of
possession as would perfect the sale against credi-
Tors, even snpposing the sale TO be real and bona
hde-See Hoffman u.s. Clarke, 5 Wheaton, $40
In that case, which was trespass against con- 4
stable for taking horse alleged to belong TO the
plaintiff, by virtue of an execution against A, the
plaintiff brother it appeared in evidence that the
'old him to the plaintiff, before the'execuon, for
! full price. Another witness, produced by the
plaintiff, testified that the plaintiff and A lived
ogether and that after the sale the plaintiff kent
he horse in the same stable in which Ahad kept
lin. The Court there said, the law in order 10
make sales of personal property good against ered-
ors, and to prevent them being deceived by ap-
'earances, nguires that there shall be an actual
ransfer OF e possession, so far as the nature and
condition Of the property will admit Of it. The
circumstance of the seller and buyer of the horse
BOARDING together in the same house, furnishes no
round for dispensing with such actual change of
he possession as will render it distinct and usib,
o that il may become notorious. 1t was surely
ractcable for the plaintiff to have taken possess
ion OF the horse, by placing him in different
table; and either feeding and taking care of him
Imself, or to have procured some third person to
ave done SO. So here the plaintiff might nave
hanged the sign, etc.
RosT, Justice, and KING, Justice, being also Of
pinion that the Judgment should stand, it is there
IRE decreed that the Judgment of the District Court
e affirmed and the costs of appeal be paid by the
l. .,fxl L. l.