Daumiel v. Gorham

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.”

Appeal from the District Court of the Twelfth Judicial District. Action of trespass against the defendant as Sheriff of San Francisco County, for seizing goods of plaintiff. The defence set up is, that the goods were seized under three attachments against Henry Meiggs; that the property when seized was the property and in the possession of said Meiggs. The evidence shows that the plaintiff had ¡purchased and paid for the property described in Ms complaint, and had stored them in Meiggs’ mill, where a portion of them were proved to have been seized by the defendant, but not sold or removed. The value of the property was proved, but there was a conflict in the testimony as to a- notice of his claim and demand of the property by the plaintiff upon the defendant and the keeper in charge, and as to the delay or refusal of the defendant to deliver the goods to plaintiff. The Court charged the jury that the defendant, in levying on the property, was a trespasser, and that the jury were to find the value of the property, and refused instructions asked for by defendant, to the effect that if the goods were in the possession of Meiggs when seized, the defendant was not liable as a trespasser, unless it was shown that the plaintiff had designated and demanded them, and that defendant had refused to deliver them; which is assigned as error.