Woolner & Lowenstein v. Spalding ex rel. Heard

Citations

• 65 Miss. 204

Syllabus

<p>1. Indemnifying Bond. Given in attachment. Right of action thereon. § 2633, Code 1880, construed.</p> <p>Section 2633, Code of 1880, provides that, “ The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment, when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin.” A third person whose property has been siezed in attachment as that of the defendant is not precluded by this statute from any appropriate remedy, except replevin while the property is in the hands of the officer having seized it. He may elect the remedy provided by the statute, but he is not restricted thereto.</p> <p>2. Same. Given in attachment. May be sued on, when.</p> <p>An indemnifying bond in attachment operates to transfer from the sheriff to the obligors therein responsibility for the trespass of the former, and it may be proceeded on as soon as injury has been inflicted and a cause of action has arisen, without regard to the stage of the proceedings in attachment.</p> <p>3. Same. Unlawful siezure in, attachment. Measure of damages.</p> <p>In an action upon an indemnifying bond by a third person, whose goods have been seized in attachment, and sold as perishable property by the officer to whom such bond was given, the plaintiff if entitled to recover is not limited to the amount for which the goods were sold, but may recover the real value thereof when converted — the proceedings in attachment being, as to him, res inter alios acta.</p> <p>4. Evidence. Hypothetical question.</p> <p>In proving the value of a stock of goods, a question based on a hypothetical condition of things as to such stock of goods, not shown to have existed, is incompetent.</p>