has been wrongfully detained from his possession, where such preperty has an active capacity for earning money.
ON REHEARING.
Where personal property is wrongfully taken by an officer, and sold at judicial sale, and the owner purchases the property at such sale, and receives possession thereof, he is not entitled, in an action of claim and delivery against the officer, to judgment for the value of the property; but, in lieu thereof, he is entitled to judgment for the sum that it cost him to regain possession, with interest on such sum from the date of its payment.
(Opinion Filed Feb. 25 1892.)
APPEAL from district court, Dickey county; Hon. W. S. Lauder, Judge.
F. S. Parker and H. F. Miller (Newman & Resser, of caunsel), for appellant. ZH. P. Perry and Alex. D. Flemington, for respondent.
Action by Theodorus Northrup against William A. Cross, sheriff of Dickey county, to recover possession of certain personal property. Verdict and judgment for plaintiff. New trial denied. Defendant appeals. Modified and affirmed, On rehearing, reversed, and new trial ordered.
F. S. Parker, H. F. Miller (Newman & Resser, of counsel), for appellant:
The selection made by plaintiff was not sufficiently definite to enable him to recover his exemptions. Friedman v. Sullivan, 2 8. E. Rep. 785. The defendant, as sheriff, was guilty of no neglect of duty. He could not be compelled to select the specific articles for plaintiff. That duty the law puts on the plaintiff. Zielke v. Morgan, 7 N. W. Rep. 283. The action was in fact an action for conversion. Sutherland on Damages, vol. 3, p. 541; Nickerson v. Chatterton, 7 Cal. 568; Bigelow v. Doolittle, 36 Wis. 115; Dorsey v. Manlon, 14 Cal. 553.
E. P. Perry and Alex. D. Flemington, for respondent:
The question as to whether a selection had been made was properly submitted to the jury as the main question in the case.
