59 Ala. 575 | Ala. | 1877
A sheriff, who has seized property under an order in a detinue suit, by the express words of the statute, is bound, on the expiration of ten days from the seizure, if the plaintiff in the suit fails to take it into possession by the execution o'f a forthcoming bond, to restore it to the possession of the defendant. Code of 1876, §§ 2942-43; Hall v. Perryman, 42 Ala. 122. The duty of obedience to the order of seizure, and of restoration, in the event of the failure to execute the forthcoming bond, are equally imperative, and are each official. A failure to perform either duty is a misfeasance, involving the sheriff and his sureties on his official bond in liability for the damages the party aggrieved may sustain.— Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183; Kelley v. Moore, 51 Ala. 364.
The admissibility, and the effect of the evidence if admissible, that the ownership of the property was in the plaintiff in the detinue suit, is the important question of this case, and must control its final determination. As a general rule, in an action against an officer for neglect or other misconduct, the actual injury sustained is the measure of damages. Sedgwick on damages (6th Ed.) 634. A plaintiff in
Let the judgment be reversed and the cause remanded.