Strasburger v. Barber

Bartol, C. J., delivered the opinion of the Court. The appellee, a feme covert, by her next, friend, sued the appellants in trespass de bonis asportatis. It appears that the appellant, Strasburger, had recovered a judgment for $41.33 against W. T. Barber, plaintiff’s husband, and caused a writ of fieri facias issued thereon, to be levied by McLaughlin, a constable, upon certain goods in a store, alleged to be the separate property of Mrs. Barber, by whom the store was carried on. The goods seized, were removed from the store; and about one month thereafter, were returned to her possession by the appellants.

The case was submitted to the jury upon instructions contained in the plaintiff’s prayer, and in the second, third, fourth and eighth prayers of the defendants which were granted. We find no error in these instructions, they left the questions of fact in dispute fairly to the jury, and stated correctly the rule or measure of damages. It has been said in argument, that the fifth clause of the plaintiff’s prayer, and the third prayer of the defendants, are inconsistent with each other, and it was error to grant them both ; but the appellants counsel have failed to point out any inconsistency between them. ¹⁰⁸ By the former, the jury were instructed if they found the facts therein before enumerated; that the plaintiff was entitled to recover in damages for such injury as she sustained because of the taking of her goods, and for the breaking up of her business ; if the jury should find that her business had thereby been broken up, and that the jury might assess greater than the actual damage, if they should find the defendants acted after notice and wantonly. By the defendants’ third prayer, the jury were instructed that if they should find the goods had been restored to the plaintiff, the proper measure of damages is not the value of tlie .goods seized; but only such damages, if any, as she may have sustained -by reason of the taking and detention of the goods, and the injurious consequences thereof\ if any, from the date of the seizure until their restitution.

And by the second prayer, the jury were instructed that the plaintiff could recover only the actual damage-suffered, provided the jury should find, that the defendant caused the officer to take them, under a bona fide claim of title and right under the law, and without any malicious motive or purpose to harrass or injure the plaintiff. We think these instructions were correct, and find no inconsistency in them. 'The acceptance of the goods by the plaintiff did not deprive her of the right of action, and