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

plaintiff to recover the sum of 1882 IS damages
ior an alleged tort committed by him in taking
ana carrying away the plaintiffs property, con-
| slsting OF a lot of shoes, trunks, etc. - - a9
lhey We're seized under an execution against
one Illlotson, which was, including costs, for a
| less sum than $500.
| After the evidence was given in and the trial
finished, the defendant offered to restore and ten
dered the goods seized, if the Court should be of
opinion that the plaintiff had made Out his claim to
the property. The District Judge decreed that the
plaintiff should recover the goods, reservng his
right to sue the defendant for whatever damages
he might have sustained from want of proper
care and attention to the goods while in the defen-
dants custody, and ordered the defendant to pay
costs The plaintiff has appealed. 1
The suit was instituted on the 18th April, 1047,
and IN the petition the value of the goods taken
was alleged to be 1882 Is, and the incidental dam
ages are laid at $500. a5l ro-1. 8ts SO
by the minutes of the trial it appears that the
offer to restore the goods was made on the 4th
June following. We have not been favored with
any authority or precedent Of any case determined
In this State, by which the responsibility of parties
to suit of this kind has been held to be affected
by tender made at the time and under the cir
cumstances attending this. '
Sheriff, under an execution against A, has no
warrant or right to seize the property of B. In
this case the defendant, under color of an execu-
ton against I1llotsOn, seized property which the
District Judge satisfied belonged to the plain
IT'LL As the case stands before the Court in rela-
ton to the property itself, the seizure and removal
OF the defendants goods was a tort, for which he
IS responsible The only question is as TO- the ex-
tent OF his responsibility. Under our laws the
Sheriff has no authority to call jury, in the event
OF his having reasonable ground to doubt whether
the goods to be seized be really the property of the
debtor in execution. The responsibility in all cases
appears, by the uniform decisions of the Supreme
Court, to rest on that officer, whose only protec-
ton is IN the bond of indemnity which in doubtful
cases is usually asked from the creditor. The en-
barrassments which surround the performance of
the duties of Sheriff, particularly in great COM
meIcial city like this, in consequence of the shifts
and devices of fraudulent debtors in putting their
property beyond the reach of their creditors by
sham sales and otherwise, are very serious: the in
terests of the administration Of justice call for some
remedy for the evil by means of legislation. None
better, in all probability, be devised than that
which has been found necessary and PRACTICAL and
is in operation, in England and most of our States
law empowering Sheriffs to summon jury to
determine, on doubtful questions relating to the
ownership of property, which is directed to be
seized IN execution, modified as it there is by set
tied jurisprudence would be of great public benefit
and no more than just protection to the public
officer in the discharge of his difficult and impor-
tant duties. .-. .
We have kept this case long time under adj
ylsement in order to ascertain it, as the law stands,
there was any principle on which the responsibility
of the Sheriff can be modified, in which we could
all concur, and am satisfied there is none.
The Sheriff s officers, in the present case, acted
without malice, ard think the defendant is only |
liable to the plaintiff for the value of the goods
taken away The officers, in seizing, did not close
the store, or interfere with the current business and
the goods were removed in the after part of the day
to the depot of the Sheriff. There is no evidence
OF any aggravatlon or wantomess attending the |
seizure. The name of Tilotson was over the door /
on the street. The boxes were marked in his name.
1t appears that the plaintiff had bought out the
stock of Tillotson in this store, on the 10th Feb
ruary previous, and Tilloson remained with him in
the capacity of clerk and under the evidence,
to all external appearances, there was
good reason for believing that Tiotson was still
he owner. The facts, however, turned out other
wise, and am impelled to consider Mcdonald, the
plaintiff, the owner of the goods, and the defend
Int as guilty of tort in seiZing and removing them |
My opinion is that the plaintiff is entitled 20 Judge
nent for the value Of the goods seized
1t is particularly to be desired that on questions
If this kind, which determine the responsibility of
he executive officers of the law, the opinions of
he judges of this Court should be unanimous; and
is with great Difference that dissent from that of
ny brethren in this case. The judgement of the
District Court having found the sale of the stock of
,oods from Tiotson to the plaintiff of the 10th Of
february, previous to the issuing of the execution
on this Court does not dssent,) and having given
Judgement for the goods in consequence of the ten
Ter made in Court and not concurring with the
District judge to the validity and effect of the
ender as made, am forced to the conclusion that
he Sheriff is liable to the plaintiff for their value
ccording to what ! conceive to be a legal princi-
lie, which is a necessary safeguard of the right of
property. =, f.s1,f
Z