Daumiel v. Gorham
Before: Murray
Synopsis
Where the goods of a third party are mixed with the property, o.r in the apparent possession of, the judgment debtor, the sheriff is not liable for levying on them as the property of the debtor, unless there has been notice and demand of the goods by the owner, and a delay or refusal to deliver.
Where no such notice or demand was proved, it was error to charge the jury “that the sheriff was a trespasser, and that they were to find the value of the goods.”
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.
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