5 Rob. 202 | La. | 1843
The Sheriff is appellant from a judgment obtained against him on a rule, whereby the plaintiff has recovered from him the sum of three hundred dollars, with interest. The facts of the case are these: The defendant having been arrested, deposited in the hands of the Sheriff and appellant, the sum of three hundred and fifty dollars, on which he was released.
The Code of Practice, arts. 766 and 767, authorizes any per son entitled to any money recovered by the Sheriff, by virtue of the order or judgment of a court, to obtain judgment against that officer, on motion, for the money thus received, with damages. In the present case, the rule was not obtained on the ground of money received by the Sheriff, but on the ground of his illegal conduct in releasing the defendant, and of his neglect of the proper means to seize property, and to sell it. The plaintiff’s request to have the Bank notes advertised, and sold under thofi.fa. is an admission, that they were the property of the defendant; and repels the idea, that there was money of the defendant in the hands of the Sheriff, to which the plaintiff was entitled.
The court, in our opinion, erred, in listening to the plaintiff’s claim upon a rule.
It is therefore ordered, that the judgment be annulled and reversed, and that the rule be discharged ; and that the plaintiff pay the costs in both courts.
On the writ of arrest the Sheriff returned, that he had “ arrested the defendant, who was released on his depositing three hundred and fifty dollars, as security.” On theft.fa. issued on the judgment subsequently obtained, he returned, that he had “ received on the 3 March last, the sum of three hundred and fifty dollars in notes of the New Orleans Improvement and Banking Company, as security of the body of said defendant, arrested on said 3 March, which amount the plaintiff refuses to take at par with specie, and which I refused to advertise and sell according to piaintiff’s request.” There was no proof, that the notes were taken with the consent or knowledge of the plaintiff.