Levistones v. Claiborne

Martin, J. The defendant Claiborne, as Marshal of the City Court, having levied a fi. fa., which had been issued on a judgment which his co-defendant Whiting had obtained against Gottschalk, on a number of municipality notes, claimed by the present plaintiff as his own, this suit was brought, and an injunction was obtained to stay the sale of the notes; and the defendant Whiting is appellant from a judgment perpetuating the injunction, and decreeing that the notes be returned to the plaintiff. The court, in our opinion, erred. The testimony may, perhaps, show that the plaintiff was the owner of the notes; but it is also established that they were handed over by Gottschalk, the defendant, in thof.fa., in the presence of the plaintiff and appellee, who, although he asserted his ownership of the notes, did not insist on the Marshal’s desisting from taking and carrying them away. This circumstance divests him of any equity in opposing the sale ; especially as at the time when Gottschalk handed over the notes, there was a considerable sum of money on his counter in gold and silver, which the Marshal had declared, it was his intention to seize in satisfaction of the fi.fa. It is therefore ordered and .decreed, that the judgment be reversed, that the injunction be dissolved, and that the appellant Whiting recover from the appellee, damages at the rate of five per cent, on said Whiting’s judgment against Gottschalk, with costs of suit in both courts.