
    David Hamilton v. Henry H. Hurst, et al.
    Where the plaintiff resides in a different parish from the one in which he sues the defendant the latter may, under the act of 1839 amending art. 375 C. P., reconvene against the plaintiff for any cause of action.
    Where property seized on sequestration has been lost by the negligence of the sheriff, the plaintiff is liable if the sequestration was illegally issued; and it is not necessary to make the sheriff a party, when the defendant seeks to recover his damages of the plaintiff.
    APPEAL from the District Court of Point Coupée. Farrar, J.
    
      C. Ratliff, for plaintiff,
    contended: 1st. Plaintiff contends that his demand was fully made out. 2d. That plaintiff’s motion to strike out defendant’s plea in reconvention should have been sustained. 3d. That the court erred in permitting any testimony to go to the jury in relation to the loss of the boat while in the hands of the sheriff, and to prove the damage consequent upon her loss, as the sheriff had no opportunity of showing that he had discharged his duty in that respect. Plaintiff’s objections should have been sustained. 4th. The damages assessed, if the testimony was properly received, are excessive and unsupported by the evidence. See case of Sonable v. Souleny, Sheriff, 1 R. R. 292. 5th. The sequestration properly issued, and defendant has no cause of complaint in that respect .See C. P. art. 275, sec. 7. Also act of 20th March, 1839, sec. 6. 6th. The defence that the ferry charter was forfeited, is untenable, as no person has a right to complain. State alone can have the charter declared forfeited. In this ease Hamilton only sold his right to the ferry charter such as it was. See act of sale from Hamilton to Hurst. 7th. A party is not bound to repair the damage which he may cause to another in the exercise of his legal rights. Henry v. Dufilho, 14 L. R. 48. 8th. Plaintiff gave through his counsel written instructions to the sheriff how to proceed in the management of the boat while under sequestration. It is not pretended that the boat was lost in consequence of these instructions; nor does the testimony any where make it even probable, much less certain, that the boat was lost by negligence, carelessness, or mismanagement of the sheriff or plaintiff.
    For these reasons the verdict of the jury should be set aside; the judgment reversed; defendant’s demand in reconvention rejected, and plaintiff have judgment for the whole amount of his demand, with a vendor’s privilege on the boat, &c., as prayed for.”
    S. A. Lacoste and A. Provosty, for defendant,
    contended: The defendant’s motion to set aside the sequestration should have prevailed, not only on the third ground, which was the only one submitted to the jury, but also on the two first points : For the bond, the sum of which was not determined by the court as required by C. P. art. 276, was cleai’ly insufficient in amount; it should have been for an amount sufficient to compensate the defendant, not only for all damage which he could sustain, but also for the privation of the revenue during the pendency of the suit. C. P. art. 277. The bond was for only eighteen hundred dollars, just the price at which the boat was sold by plaintiff to defendant; but its value was greatly enhanced by the repairs, which cost defendant nine hundred dollars, and the revenue was from four to five hundred dollars per month; of all of which defendant was deprived. Besides, applicant should have made oath that he feared that defendant having possession of the property “ should remove it beyond the limits of the State during the pendency of the suit,” 5 N. S. 43 ; 5 L. R. 345; 11 R. R. 151; for plaintiff did not sue for the possession of the property. Act of 1839.
    There are some questions of law raised by plaintiff’s counsel in the lower court, which may be briefly noticed here. The first is a motion to strike out defendant’s plea in reconvention:
    1st. “ Because the matters set up are not connected with and incidental to the principal demand.”
    It is a sufficient answer to his ground to say that plaintiff resides in á different parish from the defendant, and that the latter had a right to reconvene against the former for any cause. Act of March 20, 1839, sec. 7, 4 R. R. 1.
    2d. Because the matters set up in the reconventional demand are basedon injuries resulting from the alleged illegal acts of the sheriff, for which plaintiff is not responsible; and 3d. Because the sheriff’s acts cannot be inquired into, as the case now stands.
    By a reference to defendant’s answer the court will perceive that the position assumed by plaintiff’s counsel is incorrect. The defendant claims damages for having been deprived of the use of the boat, and the privilege of crossing persons and things across the river between Bayou Sara and Pointe Coupée, as well as for the loss of the boat.
    It is proved beyond question that the sequestration was improperly sued out; and it is a settled principle that where a sequestration has been illegally sued out, the true standard of damages is the probable loss sustained by the defendant. “ He should be placed as nearly as possible in the situation he would have been in had the sequestration not been issued.” 6 L. R. 266. 11 R. R. 145. How then could the defendant have established the damages sustained by him, if he had been prevented from proving the loss of his property, after the unlawful sequestration; no matter by whose fault that loss occurred? How could the court and jury, in the absence of such proof, have placed him in the situation he was previous to the sequestration ?
    In the case of Rodriguez and Vzsmnt, 11 L. R. 167, the Supreme Court refused to allow to the defendant the value of his slave, who had died while detained in prison under a writ of sequestration. But the court said: “We think the testimony is vague, and does not show with sufficient certainty that the death of the slave was caused by any disease arising from his detention in jail.”
    In the case before this court, the testimony is dii'eet and positive, that the pi'operty sequestered would not have been lost if it had been suffered to remain in defendant’s possession.
    But we contend, that the plaintiff is responsible for all the consequences of his wrongful seizure ; even for the acts of the sheriff. Art. 2949 of the Civil Code says: “The appointment of a judicial guai'dian produces, between the person seizing and the guardian, i'eciprocal obligations. The guai'dian must use, for the preservation of the effects seized, the care of a prudent father of a family; he must produce them, either for the dischax-ge of the person who has seized them-for sale, or to the person against whom the execution was levied, in case the seizure be raised.”
    
      Troplong in commenting upon this article, C. N. art. 1962, says: “ Quoiqu’il en soit, c’est au nom du saisissant que la justice fait ce dépót; des lors le saisissant est censé avoir contracüé avec le gardien, et le gardien avec le saisissant. Le premier est tenu ci l’egard du sécond de toutes les obligations énoncées par les articles 1947 et 1948 : le second est tenu envers le premier des obligations dont les articles 1927 et suiv. donnent le détail.”......“C’est pourquoil’article 1962, aprés avoir mis le gardien en présence du saisissant, décide d’une maniere générale, qu’il est tenu, par la conservation des effets saisís, des soins du bon pére de famille.”......Le contrat de dépót n’est censé intervenir qu’entre le saisissant, représenté par l’huissier, et le dépositaire nommé par celuici: Le saisi n’y est pas partie; il est penitus extraneus. Troplong, Dépót et Séquestre, Nos. 278 et seq.
    But the point is no longer an open one since the case of Jones v. Doles, 3d Ann. p. 589.
    The damages assessed by the jury are far from being excessive. The steam boat alone was estimated by two witnesses to be worth two thousand dollar’s. The repairs put upon her after the sale, cost the defendant nine hundred dollars. It is ¡moved also, that his profits, during the business season, would have been from three to four hundred dollars per month. He had been deprived of the use of his property during seven months, when the case was finally decided.”
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sold a steam ferry boat, a ferry flat boat and the right of keeping the ferry to defendant, who gave him three promissory notes, with his co-defendant as surety. When the first note became due this action was instituted upon it and the two others; and the plaintiff, alleging that he had just reason to fear that the defendant Hurst would conceal, part with or dispose of the boat pending the suit, and thus prevent him from recovering, any portion of his debt, obtained a writ of sequestration; under which the sheriff took possession of the boat.

Hurst moved to set aside the sequestration; and further answered, denying the allegations of the petition, except the signature of the notes, and alleging that the charter sold to him by the plaintiff had become forfeited before the sale, by various acts and omissions of the said plaintiff, by reason whereof the consideration of the notes had failed. The defendant, then assuming the position of plaintiff in reconvention, charges that the sequestration issued wrongfully, and without cause; that he was unjustly deprived of the use of his property, and that while out of his possession the steam feny boat was sunk, through the gross neglect and total want of experience of the plaintiff or of his agent; that the plaintiff neglected to take any steps to raise it; in consequence of which it is now a complete wreck. He claims five thousand dollars damages in reconvention. The other defendant adopted this defence.

The motion to set aside the sequestration failed; and the cause was tried before a jury, who returned the following verdict: “We, the jury, find for the defendant in the sum of twenty-three hundred dollars damages, to be offset by the notes of H. H. Hurst and J. S. Seibert for the sum of eighteen hundi’ed dollars given to plaintiff, and judgment for balance in favor of defendant.” Judgment was rendered accordingly, and the plaintiff appealed.

Before going to trial the plaintiff moved to strike out the plea in reconvention from the answer, which motion was overruled by the court, and he took a bill of exceptions; by his own showing he is not a resident of the parish in which he sues, and under the act of 1839 amending art. 375 C. P., the defendant may reconvene against him for any cause. It was optional with the defendant to resort to his remedy on the sequestration bond, or to proceed as he has done.

The plaintiff also took bills of exceptions to the opinions of the court admitting evidence offered by the defendant, to prove the damages he had sustained and the negligence of the sheriff, in consequence of which the boat Was lost.

If, as alleged in the answer, the sequestration was wrongfully sued out, the plaintiff was from the beginning a trespasser; under that allegation the defendant may prove any fact going- to show the damage sustained by reason of the trespass, or of the want of care of the property.

The plaintiff also excepted, on various grounds, to the introduction of the testimony of James Vance, taken on a former trial. The court admitted it, to show that the defendant was satisfied with his bargain, and likely to do a thriving business, and thus to negative the grounds on which the sequestration was taken out. There can be no doubt of the admissibility of the evidence offered for those purposes.

On the merits, the case turns exclusively upon questions of fact. The defendant has satisfactorily shown, that the grounds upon which the sequestration issued were unfounded in fact; and that the only serious law suits pending against him at the time of the trial, had been instituted after the sequestration, and probably in consequence of it. fíe has also shown, that the steam ferry boat was left without any person on board at the time it sank, and that the sinking might have been prevented by ordinary care. The judgment, so far as its effect is to dispense the defendant from paying, for the boats is therefore correct. Jones v. Doles, 3d Ann. 589.

But we are of opinion that the damages assessed are excessive ; it is proved, that the boat, after it sank, and the engine in it were worth from 450 to 500 dollars. The ferry flat boat must also have been Worth something; and as the defendant retained both, and still had the right of ferry, we are of opinion, that they are sufficient to indemnify him.

It is therefore ordered, that the judgment in this case bte reversed ; and that there be judgment in favor of the defendant and appellee, with the costs of the district court; those of this appeal to be paid by him.  