Berry v. Burckhartt
| Decision Date | 30 April 1824 |
| Parties | BERRY AND SMITH v. BURCKHARTT. |
| Court | Missouri Supreme Court |
This was an action on the case, brought by Berry and Smith against the sheriff for a breach of his official duty in not executing a certain writ to him directed out of chancery. The declaration is demurred to, and judgment in the court below for the defendant. The first objection made is that the court could not exercise any jurisdiction in the case, and the sheriff was not bound to execute it. The rule is, if the court have jurisdiction of the matter, the sheriff must obey the writ. The case shows that the plaintiff had taken a mortgage of negroes to secure the payment of money; and that before the time expired, the negroes being left with the mortgagor, he was about to remove them out of the country, or jurisdiction of the court; that a bill was filed to restrain the party, and this writ issued to the sheriff, commanding him to seize the goods, detain them, and restrain the party from removing the property. If the Court of Chancery has not jurisdiction in such a case as this, no court has. It is not now a question whether the proceeding was erroneous; that is not material. We are of opinion that the Court of Chancery had jurisdiction over the subject matter, and that, therefore, the sheriff was bound to obey the writ.
It is next objected that this declaration does not show that the plaintiff had any right of action in law or equity; therefore, they cannot recover. It is true they did not show a debt then due and payable, but they show a present debt, payable in future. Now, if they were hindered or delayed in securing this debt they have cause of action, if they did not entirely lose; and if, on the trial of this cause they cannot show they lost all, they will not recover all, but will only recover according to the actual loss, as it stood at the time of bringing the action. The declaration is sufficient. The judgment of the court is, therefore, reversed, with costs; and the cause is to be remanded to the Circuit Court for further proceeding.
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