Fitch v. Brockmon

Appeal from the Seventh Judicial District, Sonoro County. The complaint sets forth, that the defendant, about the 15th of May, 1851, with force and arms, seized, took, and drove away, a number of cattle of the plaintiff, of the value of §4700, and converted and disposed of the same to his own use, to her damage, &c.

Defendant answered, and denied that he so seized and drove away the cattle of the plaintiff ;■ and denies that he converted any cattle of the plaintiff to his own use. That he was acting as sheriff of said county, before and since the 15th of May, 1851; and about the 17th of February, an execution was put into his hands as sheriff, in favour of Jas. A. Griffith, against Lindsey Carson, and was informed that Carson had about 500 head of cattle at the ranch named in the complaint, by one Henry Fitch, who was then acting as the agent and attorney of the plaintiff, and was requested by him to levy on and sell the said cattle; and that he did, as sheriff, levy upon and sell about 350 head of said cattle, as the property of the said Lindsey Carson; that the said plaintiff’s attorney was present at the sale, and made no objection, but on the contrary, purchased about 100 head of the said cattle for the said plaintiff; and denies that any of the said cattle was the property of the plaintiff, and avers that they were the property, and in possession of the said Lindsey Carson.

The execution and return are set forth upon the record, and Griffith’s receipt for the amount of the execution.

The case was submitted to the Court without a jury, who found that the defendant did drive off the cattle; 2nd. That he did so in his capacity of sheriff, under proper authority; 3rd. That the cattle were in the possession of the plaintiff; 4th. That Lindsey Carson had an undivided interest in them; 5th. That Henry Fitch was the agent of his mother, the plaintiff, in her absence, and in that capacity did permit the levy to be made; 6th. That Carson and the plaintiff, after the taking complained of, had a final settlement, when the plaintiff paid over to Carson the balance of cattle due him; and nothing appearing to the contrary in the testimony, it is to be presumed that the cattle were accounted for; 7th. That by this settlement it appears, that at the time of the taking, Carson had a much larger number of cattle on the ranch than was taken by the sheriff.

Upon the facts thus found, the Court decided in favour of defendant, and ordered judgment to be entered accordingly.

The plaintiff moved for a new trial, upon the following grounds: Error in law, in that the Court went beyond the pleadings, in deciding that the plaintiff had received satisfaction for the cattle, on settlement with Lindsey Carson; 2nd. Insufficiency of evidence to justify the decision of the Court, that Henry Fitch was such an agent for plaintiff, as to be able to bind her, by his consent, to the levy.