Fleming v. Lockart

8 Mart. 398 | La. | 1821

Lead Opinion

Martin, J.

The plaintiffs seek to recover damages, on account of a negro sold, as a runaway, by the defendant, as sheriff, having been recovered from her by his previous owner. Some of the formalities which the law requires, previous to such a sale, having been neglected by the vendor.

West’n District. Sept. 1821. In such a suit, notice to the sheriff of the former suit need not be, proven to have been given him, that he might defend his vendee, but he may shew any thing which his vendee might have shewn to resist the claim of the former owner of the negro.

He pleaded the general issue, the want of notice of the suit in which the negro was recovered, and that he was not liable for his bonâ fide acts as sheriff.

There was judgment for him, and the plaintiffs appealed.

The sale and recovery are proven, and the defendant has produced the receipt of the printers, to shew how often the negro was advertised ; and it appears that the advertisements were not continued as long as the law requires.

I think that the only consequence of the want of notice to the present defendant, of the suit in which the negro was recovered, is the faculty, which he has exercised, of shewing any thing which might have prevented a recovery. In this, however, I believe he failed.

Surely if a sheriff sell any thing, without previously doing what the law requires from him, for the validity of the sale, and his vendee is obliged to abandon the thing sold, in consequence of the vendor’s neglect, the latter is bound to indemnify him.

Baldwin for the plaintiffs, Bullard for the defendant.

We ought to reverse the judgment, and the case must be remanded, in order that the damages may be assessed; and the costs of this appeal must be borne by the defendant and appellee.

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Concurrence Opinion

Mathews, J.

I concur in this opinion.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the cause be remanded to the district court, in order that the damages be assessed; and it is ordered that the defendant and appellee pay costs in this court.