Ware v. Innis , 3 Mart. (N.S.) 117 ( 1824 )

Mathews, J.

delivered the opinion of the court. This suit is brought by the plaintiff, to recover a part of his wages, as overseer of the defendant, for the year 1822, and also money alleged to have been paid and advanced by him for the use, and benefit of the latter. The answer contains a general denial of all the allegations of the petition, a plea of prescription as to part of the plaintiff’s claims; a forfeiture of his right to recover, on account of having seized and taken property from the defendant, to satisfy the amount now claimed by him, and also compensation to the amount of $52, &c. Judgment was rendered in favor of the plaintiff, in the court below, for $568 58 cents—from which the defendant appealed.

West'n District, Sept. 1824.

From an attentive examination of the evidence of the case, we are of opinion that the facts proven, do justify the decision of the district court, as to its amount.

But an important legal question remains to be settled: Has the appellee forfeited his right to recover, by the seizure of the property of the appellant, (without judicial authority,) to satisfy his claims?

The laws relied on by the counsel for the defendant in support of the plea of forfeiture, are found in the 4 book, tit. 13, & lan. 1, of the N. Recopilacion, and the 10 law of book 5, tit. 17 of the same work.

We have attentively considered these laws, and are of opinion that the forfeiture which they create, only takes place in consequence of a taking with force, as it is believed the intention of the legislature was to prevent breaches of the peace, &c. In the present case there is no evidence of force on the part of the plaintiff.

Thomas for the plaintiff, Scott & Bullard for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.