Bodega v. Perkerson , 60 Ga. 516 ( 1878 )

Bleckley, Judge.

According to the decided weight of the evidence, the goods were the property of the plaintiff, and the possession of the same by the defendant in attachment was under and for the owner, and not in his own right. They were seized by the sheriff while in the hands of a comtnon carrier, to whom the defendant in attachment had just delivered them for transportation from Atlanta to New York. While they were in the sheriff’s custody under the levy, the title of the plaintiff was made known to the sheriff, and their surrender demanded. He would not yield to the demand, but retained the goods until a claim had been regularly interposed, and bond and security given, as provided for by the claim laws embodied in the Code. This action was brought after the demand and refusal now referred to.

1. The attachment was authority to the officer to seize the property of the defendant, but none, whatever, to seize the property of third persons. 57 Ga., 596.

If, owing to the peculiar circumstances, the sheriff was justifiable in treating these goods as the property of that defendant until informed of the true title, (and we hardly think that he was) he was bound, at his peril, to recognize and yield to the true title when it was brought to his notice. Not having done so, he was guilty of a conversion, and a cause of action against him then became complete, if it was not so before. Between the risk of .liability to the owner by holding on, and the risk of liability to the plaintiff in attachment by letting go, the sheriff’s position may have been éxeeedingly embarrassing and uncomfortable; but such risks are incident to his office, and they must needs be incurred by whomsoever considers the office sufficiently profitable or desirable to induce its acceptance. In numerous instances the sheriff is charged as if he knew both law and fact with absolute certainty, and not to know either is simply his misfortune.

2. The claim laws give to owners a cumulative remedy. They do not abrogate or supersede remedies which existed before. 9 Ga., 23. Indeed, properly speaking, they afford no remedy at all for damages, beyond the mitigation which results from regaining possession of the property. 58 Ga., 195. The surrender of property after conversion goes in mitigation of damages, but does not defeat the action. 7 lb., 528. The motion for new trial presents several points . on the measure of damages, all of which may be readily solved by consulting the Code.

Cited in the argument: 56 Ga., 426; 12 Ib., 613; 13 Ib., 392; Addison on Torts, 787 ; Drake on Attach., §§195, et seq; Code, §§3269, 3283; 34 Ga., 311; 29 Ib., 710; Drake on A., §§194, 194a; 32 Ga., 512; 56 Ib., 634; 30 Ib., 241; 13 Ib., 389; 3 Camp., 47; Crocker on Sh’ff’s, 382; Code, §3322.

Judgment reversed.