Devries Co. sued out an attachment against Phillips, and the defendant as Sheriff levied the attachment *Page 386 on goods which he supposed to be Phillips, but which were in fact the property of Moses Haywood, who was plaintiff's intestate. After the levy Moses Haywood interpleaded that the goods were his and was made a party; and the interplea was found in his favor. In the meantime the defendant Sheriff had sold the goods, the same being perishable for the sum of $2,544.56; and in the same suit it was referred without objection, to ascertain the value of the goods; and the referee reported that the amount of the sale was the value, $2.544.56; and there being no exceptions to the report, Moses Haywood recovered that sum and the defendant Sheriff paid Moses Haywood $2,250 and refused to pay the balance $294.56, because he says he expended $13 50 for ocean freight, which sum was allowed and reduced the balance to $281.06 and that this balance he had expended in and about the sale.
We are of the opinion that he was not entitled to retain for the expenses of the sale, because it was his own wrongful act to take Haywood's goods and sell them.
It would be monstrous if one man could take the property of another against his will and sell it and charge for doing it. Nor is the matter altered by the fact that the defendant was Sheriff; because he had the right to require an indemnity from the plaintiff Devries Co. as in fact he did.
In order to show the amount of the defendant's liability the plaintiff introduces the record of the suit between Devries Co. and Phillips and Haywood's interpleader, containing the defendant's official levy and sale. To this the defendant objected. We think it was competent for the purpose for which it was offered.
The defendant offered to prove by his own oath that the plaintiff's intestate induced him, by something that he said, to levy on the goods as the property of Phillips.
We think this was properly refused him under our statute *Page 387 which forbids a party to testify as to a transaction between himself and the intestate of the other party.
There is no error.
PER CURIAM. Judgment affirmed.