Daumiel v. Gorham
DAUMIEL v. GORHAM
- Area
- civil
- Panel
- William J. Murray, Jr. (author)
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion — Murray
The opinion of the Court was delivered by Mr. Chief Justice Murray.
Mr. Justice Terry concurred.
Where the goods of a third person are mixed with the property, or in the apparent possession of the judgment debtor, a sheriff who levies upon them, supposing them to belong to the defendant in execution, is not liable as a trespasser ab initio. In order to charge him it is necessary to show a notice and demand of the goods, and a delay or refusal to deliver.
The Court below erred in instructing the jury that “the sheriff was a trespasser, and that they were to find the value of the goods.” This was virtually withdrawing the case from the jury, and assigning either as a conclusion of law, that the officer was primarily liable, or as a conclusion of fact from the testimony, that a demand and refusal had been proved, about which there was much contradictory evidence.
Judgment reversed and new trial ordered.
Cited by
- George H. Fuller Desk Co. v. McDade S. F. No. 84 · 1896-07-18
- People ex rel. Rynerson v. Kelsey · 1868-07-01
- Paige v. O'Neal · 1859-01-15