13 Tex. 396 | Tex. | 1855
The process under which the Sheriff acted, was clearly void upon its face, consequently he could not justify under it, and there was no error in the judgment sustaining exceptions to the plea of justification. But the suit was for the recovery of the mule or its value; the petition alleging a conversion by the defendant, but praying judgment specially for the recovery of the possession of the property, or its value, in the alternative. The verdict was for the plaintiff for the highest estimated value of the property ; and the judgment
The verdict cannot be supported as giving exemplary damages, for that is not the case made by the petition. Nor does the evidence present a case calling for such damages. The process, it is-true, was void on its face ; but there is no reason to believe the officer, in point of fact, knew it to be so. He doubtless acted in ignorance of his duty, honestly believing it was his duty to execute the process; and he does not appear to have done more than obedience to the mandate required. And though, in consequence of its invalidity, he cannot justify under it, he should not be held responsible for damages beyond what would be compensation to the plaintiff for the injury sustained by Imp. And he cannot be held responsible for such damages, otherwise than by a suit brought for that purpose, and having that object directly in view. The judgment is reversed and the cause remanded.
Reversed and remanded.