Screws v. Watson, 48 Ala. 628

Screws v. Watson

48 Ala. 628 | Ala. | 1872

PETERS, J.

A question very much similar to the main question in this case came before the supreme court of the United States in the case of Lovejoy v. Murray, (3 Wall. 1.) In that case, Lovejoy brought suit against Pratt by attachment, and the sheriff levied the attachment on the property of Murray, which was assumed to be the property of Pratt.' The sheriff, being in possession of the property thus seized under the attachment, was unwilling to proceed further or to sell under that writ unless he was indemnified. Upon this, the plaintiffs in the attachment executed a bond, in which, reciting that the sheriff had attached and taken possession of the property, they bound themselves to pay all damages. The sheriff then sold the property under the attachment; and then Murray sued the sheriff in trespass for a wrongful seizure and sale of his property on the attachment against Pratt, and recovered a judgment. The sheriff paid a part of this judgment; and Murray then sued the makers of the bond of indemnity for the same trespass, and one of the questions which arose in this latter suit, as stated by Mr. Justice Miller, was this; “Did the defendants, in giving a bond of indemnity to the sheriff, thereby become liable as joint trespassers with him in the proceedings under the attachment?” In discussing this question he says: “It is sufficient, if they become liable for what was done by the sheriff after they gave the instrument. The trespass complained of was a continuing trespass, and consisted of a series of proceedings, ending *635in the sale of the plaintiff’s property under execution.” The principles settled in this case leave it beyond question that the appellants in this suit, who were defendants in the court below, are co-trespassers with the sheriff in seizing and selling the property of the appellee under the proceedings on the attachment against McDonald. It was also settled in the above cited case of Lovejoy v. Murray, (supra,) that, fixing the liability against the sheriff by judgment, also fixed the liability against the parties to the bond for indemnity. Very clearly, the damages for the trespass should be a pecuniary compensation for the loss sustained by the owner of the property wrongfully taken. This, at the lowest rate, should be the value of the property at the time of the trespass, and interest on this value upon the judgment. When the injured party has obtained a verdict and judgment for damages for taking goods, the property is changed and the right to the goods is vested in the defendant, at least after payment of the judgment.—Clark v. Halleck, 16 Wend. 607; Woolley v. Kean, 2 Halst. 85; Goldsmith v. Stetson & Co., 39 Ala. R. 183, 191. The plaintiff elects to take the damages in lieu of the goods. In such case, the damages could not justly be less than the price of the property wrongfully taken, with interest on that price from the taking. This would be a fair and reasonable compensation for the loss to the owner; and such compensation is a proper measure of the damages. — Sedg. on Dam. 29, 30, et seq. In this case, the sheriff might have been sued with the defendants in this action in the court below, and the recovery against him would have been the value of the goods taken, and interest on it from the conversion. Hair v. Little, 28 Ala. 236. In trespass, the damages must be the same against all who are found guilty.—Ridge v. Wilson, 1 Blackf. 410; 28 Ala. R. 236, supra. And whether a party commences a trespass, or comes in after it is begun and continues to the consummation of its injury in the loss of the property to the owner, he must be held guilty of the whole, else several verdicts might be found in the same action, which is not permitted. — 1 Blackf. 410, supra; Ellis *636v. Bitzer, 2 Ohio, 91. Besides, it is laid down by Sedgwick, in his work on “The Measure of Damages,” that “in the actions of tort, case, trespass, trover, replevin, and detinue, the rule is the same, with exception that in the two latter, the law makes a feeble and partial attempt to enforce the return of the specific chattels, for the taking or detention of which the suit is brought.” — Sedgw. on Dam. p. 10. In trover, the value of the property, with interest, is the proper rule; and unless there are circumstances of aggravation,-it is also proper in such a case as this. — Sedg. on Dam. 529, 530, 531, and cases there cited; Williams v. Crum, 27 Ala. 468; Jenkins v. McConico, 26 Ala. 213; Ewing v. Blount, 20 Ala. 694. The charge of the court below which is complained of does not transcend these limits. It was, therefore, free from error; and for like reasons, the charges asked and refused were properly refused.

The judgment of the court below is affirmed.