On the Merits.
The record shows that final judgment was rendered in favor of Mrs. Barrimore, supporting her plea of payment of the rent claimed of her at the rate of $26 a month for April and May, 1872 ; and under such a judgment the conclusion is inevitable that the writ of provisional seizure was decided to have been wrongfully obtained. On this issue the judgment is conclusive, and though we may differ with the District Judge in his conclusion that the plea of payment of $52 was supported by proof of tender to the creditor of a voucher for a face value of $55, but of a market value of atD most $44, yet we are powerless to revise his judgment, which is res judicata in the premises, and fixes, under the rules of law hereinabove considered, a liability for damages on the party suing out the writ of provisional seizure.
But the want of malice and the eminently probable cause, which characterized the cause of MeEeely, are proper subjects of consideration in the measure of damages which should be allowed to plaintiff in this cause.
The record teems with evidence showing want of malice in him in his legal efforts to recover his suit; his only fault consisting in the retention of the voucher which he had not accepted in settlement of his claim. But under the stern rule of law, and the final judgment of the Third District Court, he must be held liable for the actual damages *1182suffered by the defendant in the suit for rent, and caused by the provisional seizure of her furniture ; and in our opinion those damages consist of the fees of the attorney employed for her defense under the writ and of the deprivation of the use of her furniture. We do not think that he is responsible for the damages caused to the property seized by being improperly stored.
These are the acts of the constable, for which he is responsible personally and under his official bond. It was his bounden legal duty to take proper care of the furniture while in his custody, and the seizing creditor, who is not shown to have directed or otherwise interfered with the officer in the discharge of his duty, cannot be held liable for damages caused to the furniture through the negligence, recklessness or other illegal acts of the constable.
The jury fixed the damages sustained by Mrs. Barrimore at one hundred and fifty dollars, without specifying in detail the basis of their finding. We are, therefore, unable to ascertain what particular elements of damages were considered by them as affecting their verdict.
But even if they confined their investigation to the expenses incurred by plaintiff in her defense, and to the deprivation of the use of her furniture, we conclude that they have done substantial justice between the parties, and the evidence, which we have carefully considered, does not authorize us to disturb their verdict.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.