Carmichael v. United States F. & G. Co.

DOWDELL, C. J. The second count of the complaint, both as originally filed and as amended, to which demurrer was sustained, counted on a breach of duty by the sheriff in delivering the property seized under the writ of detinue to the plaintiff in'the detinne suit before the expiration of the five days from the seizure, within which time, the defendant had the right under the statute bo execute a replevy bond, and whereby it is averred the property was wholly lost to the plaintiff in the present suit. There can be no doubt that a delivery of the property to the plaintiff before the expiration of five days from the seizure was in palpable violation of the statute, and consequently a breach of duty by the sheriff- .The court erred in sustaining the demurrer to the count. The case was tried on the plea of the general issue to the first count. Under this issue it was immaterial that the box containing the goods which had been seized under the writ, and that had been placed in the storehouse of one Wilks, was removed from said place within five or six days after the seizure. It was wholly immaterial where the goods were kept, so they were safely kept by the officer and ready to be delivered as the law might require. There was no reversible error committed in rejecting this evidence of the witness D. G. Carmichael. The evidence as to a statement made by B. D. Crawford, an attorney for the plaintiff in the detinue suit, and after the termination of that suit, that he as attorney prepared the papers in that case, and that the plaintiff never gave a forthcoming or replevy bond, was purely hearsay and inadmissible, and the court properly sustained the objection to this evidence. The breach of the official bond sued on, alleged in the first count of the complaint, was the failure of the sheriff to require and take a forthcoming bond of the plaintiff in the detinue suit as the statute prescribes. The [326] plaintiff here introduced evidence showing that no such bond was ever returned by the sheriff with the other papers in the case, as it was his duty to do, if he had ever taken such bond. The evidence further showed that the sheriff making the levy died about six months thereafter ; and there was also evidence tending to show that no such bond could be found in the office of the sheriff among his papers. ■ Under this evidence it becomes a question for the- jury to determine whether or not a forthcoming bond was taken by the sheriff from the plaintiff. It was, we think, a fact in inference to be determined by the jury, and the trial court erred in giving the general charge for the defendant. For the errors indicated, the judgment must be reversed, and the cause remanded. Reversed and remanded. Simpson, Denson, and Mayfield, JJ., concur.