West v. Shockley Derrickson

4 Del. 287

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court:

Booth, Chief Justice,

charged.—In an action of trespass for injury to personal property, the plaintiff must prove: 1st. The property, of which possession is sufficient prima facie evidence. 2d. The trespass. 3d. The damage. The pleas were not guilty, and justification under execution process. The first plea puts in issue the fact of the trespass, &c.

If property be taken by a public officer having no writ in his hands, or after the return day, he is a trespasser. But if a levy be made before the return day of the writ, and the property remains in the possession of the defendant, the officer may, after the return day, take possession of the property levied on ; and for so doing he would not be a trespasser. As to the plaintiff in the execution, he would not be liable as a trespasser, for irregular execution of the process, unless he is shown to have ordered this mode of execution, or unless he participated in the trespass.

As to the damages, they should be allowed only for the injury arising from being deprived of the possession of the property for the time it was out of plaintiff’s possession, and any depreciation in its value arising from the seizure and detention.

Verdict for plaintiff, 25cts.

On motion the court disallowed the costs of five of the witnesses summoned by the plaintiff, because their testimony was immaterial.