The opinion
Eusxis, C. J.
dissenting. The defendant, who is sheriff of the parish of Orleans, is sued by tho plaintiff to recover the sum of $1,332 25, damages for an alleged tort committed by him in taking and carrying away the plaintiff’s property, consisting of a lot of shoes, trunks, &c. They were seized under an execution against one Tillotson, which was, including costs, for a less sum than $200, After the evidence was given in and tho trial finished, the defendant offered to restore and tendered the goods seized, if the court should be of opinion that the plaintiff had made out his claim to the property. The district judge decreed that the plaintiff should recover tho goods, reserving his right to sue the defendant for whatever damages he might have sustained from a want of proper care and attention to the goods while in the defendant’s custody, and ordered the defendant to pay costs. The plaintiff has appealed.
The suit was instituted on the 12th of April, 1847, and in the petition tho value of the goods taken was alleged to bo $832 25, and the incidental damages are laid at $500. By the minutes of the trial, it appears that the offer to restore tho goods was made on the 4th of June following. We-have not been favored with .nny authority or precedent of any case determined in this State, by which tho *205 responsibility of parties to a suit of this kind has been held to be affected by a tender made at the time and under the circumstances attending this.
A sheriff, under an execution against A. has no warrant or right to seize the property of B. In this case tho defendant, under color of an execution against Tillotson, seized property which the district judge was satisfied belonged to the plaintiff. As the case stands before the court in relation to the property itself, the seizure and removal of the defendant’s goods was a tort, for which he is responsible. The only question is, as to the extent of his responsibility. Under our laws, the sheriff has no authority to call a jury in the event of his havng reasonable ground to doubt whether the goods to be seized be really the property of the debtor in execution. The responsibility in all cases appears, by the uniform decisions of the Supreme Court, to rest on that officer, whose only protection is the bond of indemnity which, in doubtful casos, is usually asked from the credit- or. The embarrassments which usually surround the performance of the duties of a sheriff, particularly in a great commercial ci1y like this, in consequence of the shifts and devices of fraudulent debtors in ¡ratting their property beyond the reach of them creditors by sham sales and otherwise, are veiy serious; the interests of the administration of justice call for some remedy for the evil by means of legislation. None better in all probability can be devised, than that which has been found necessary and practical, and is in operation in England and most of our States. A law empowering sheriff’s to summon a jury to determine on doubtful questions relating to the ownership of property, which is directed to bo seized in execution, modified as it there is by a settled jurisprudence, would be of great public benefit, and no more than a just protection to tho public officer in tho discharge of his difficult and important duties.
We have kept this case a long timo under advisement in order to ascertain if, as the law stands, there was any principle on which tho responsibility of the sheriff' can tbe modified, in which we could all concur, and I am satisfied there is none.
The sheriff’s officers in the present case acted without malice, and, I think, the defendant is only liable to the plaintiff for the value of the goods taken away. The officers,in seizing did not close the store, nor interfere with the current business, and the goods were removed in the after part of the day to tho depot of tho sheriff. There is no evidence of any aggravation or wantonness attending tho seizure. The name of Tillotson was over the door on the street. The boxes were marked in his name. It appeal’s that the plaintiff had bought out the stock of Tillotson in this store on the 16th February previous, and Tillotson remained with him in the capacity of a clerk; and under the evidence, according to all external appearances, there was good reason for believing that Tillotson was still the owner. The facts, however, turned out otherwise, and I am compelled to consider McDonald, the plaintiff, as the owner of the goods, and tho defendant as guilty, of a tort, in seizing and removing tliom. My opinion is that the plaintiff is entitled to judgment for value of the goods seized.
It is particularly to be desired that, on questions of this kind, which determine the responsibility of the executive officers of the law, the opinions of the judges of this court should be unanimous, and it is with great deference that I dissent from that of my brethren in this case. The judgment of the District Court having found the sale of the stock of goods from Tillotson to the plaintiff of the 16th of February previous to tho issuing of tho execution, to have been valid and bona, fide, from which opinion this court does not dissent, and having given judgment *206 for the goods in consequence of the tender made in court, and not concurring with the district judge as to the validity and effect of the tender as made, I am forced to the conclusion that the sheriff is liable to the plaintiff for their value, according to what I conceive to be a legal principle, which is a necessary safeguard of the right of property. " Judgment affirmed.