Golsen v. Liddell ( 1885 )

Farmer, J.

Where a sheriff seizes cotton under a fi. fa., he must keep the same until the day of sale in a place of safety, and if the same be lost or stolen, the burden is strictly on the sheriff to show that the loss occurred wdthout fault on his part, or on the part of his keeper, for whose acts the sheriff is always responsible. C. P. 659; 13 An. 616; 8 An. 139.

2. If the sheriff permit the property seized to go back into the possession of the owner, whether as keeper or not, and the latter disposes thereof, it is not a theft; but the sheriff will be liable to the seizing creditor for the value of the cotton.

3. Conceding that in such a case the sheriff could escape liability, by showing that there were privileges on the cotton which would have defeated plaintiff’s claim, yet it must be shown that the holder of such privileges would have asserted them in due time, and the same amount of proof adduced that would enable a third opponent to recover in the case.

4. Where a witness is cross-examined on matters not referred to in chief, he becomes the witness of the cross-examiner, and his testimony cannot be contradicted by the latter.

5. The failure of the sheriff to introduce witnesses who are accessible, and who could best explain the loss of the property, greatly weakens his defense.