Griffin v. Ganaway , 8 Ala. 625 ( 1845 )

COLLIER, C. J.

The true measure of damages in this case is, the injury which the plaintiff sustained by the neglect of the defendant to levy the attachment on a sufficiency of property to satisfy the judgment consequent thereupon. It is fairly inferri-ble from the evidence, that the horse levied on would not, at a forced sale, have sold for a sum equal to that for which the action was brought, to say nothing of the expense of keeping such property before it is replevied, and other costs. If as much of the estate of the defendant in attachment, making a proper allowance for depreciation in price, costs and incidental charges, was levied on, as was necessary to satisfy these, together with the debt, then perhaps, the sheriff would be discharged, if from causes beyond his control, it should be lost, or become valueless.

The evidence of the defendant’s witnesses as to the value of the horse, was inconclusive. These witnesses doubtless spoke in reference to the market price, as ascertained in ordinary contracts between man and man. Nowit is known to all who have any knowledge upon the subject, that sales of property for which there is not a great demand, is less likely to command a fair price at a forced than a voluntary sale.

"We should consider the price at which the horse sold under the venditioni exponas, as furnishing a more certain standard of value, than the testimony of witnesses; especially as there was no evidence tending to show any thing like depreciation from bad treatment or otherwise, between the levy and sale. But, be this as it may, the charge of the Court upon the evidence, assuming the defendant’s neglect of official duty, could not possibly prejudice him; for we have already seen, that if neglect, was established, the plaintiff is entitled to be compensated to the extent of the injury he has suffered.

Prom what has been said, it clearly results, that neither of the charges prayed should have been given. They assume that the defendant could not be made liable for more, than the difference between the value of the horse at the time of the levy, and the amount for which the attachment issued. This, it has been shown, is not the law. There is then no error in the points presented, and the judgment is therefore affirmed.