35 Mo. 334 | Mo. | 1864
delivered the opinion of the court.
This was a suit to recover damages for the unlawful seizure and sale of a negro boy. The defendant attempted to justify his acts upon the ground that he was marshal and ex-officio collector of the town of Farmington, and acted in performance of his duty as such collector, as the means of col
The first instruction given by the court in effect declared, that the seizure and sale by the marshal, without a judgment of a court, was illegal, and that the plaintiff might recover the damages which he may have sustained by the seizure and sale. This instruction stated the law correctly. Although the town ordinance authorized the seizure and sale, yet the general laws under which the town was incorporated did not give it authority to pass the ordinance.
The act of the General Assembly gave to the town the
This determines the most important point in the case, in favor of the judgment of the lower court; but that court, in some minor matters, so erred as to make it necessary to reverse its judgment. The court, by striking out an answer filed by the defendant and by instructions given at the trial, in effect decided that the measure of the plaintiff’s damages was the value of the negro with interest, deducting therefrom the money repaid to the plaintiff, but without deducting the amount of the taxes retained by the defendant.
My .individual opinion is, that there was also another aspect of the case in which the value was not the measure of damages; that is, if the plaintiff after the sale had the possession of the negro, and knowing as he did, that Hunt had no title to the negro, voluntarily and unnecessarily bought the negro from Hunt, he cannot be said to have lost the negro (or the price paid Hunt for the negro) ; and if the negro was not lost to him, of course the measure of damages is not the valne. He may be entitled to full compensation for all the injury which he has sustained by the acts of the defendant, but not for the injury sustained by means of his own voluntary acts.
In the answer (which was stricken out) there were some immaterial averments which might have been stricken out, but there were other matters also which were properly plead-able in mitigation of damages.
the judgment is reversed and the cause remanded.