Blevins & Cavins vs. Sympson, Deputy Sheriff, 2 B. Mon 463

Judge Ewing delivered the Opinion of the Court. The plaintiffs in error, on bill filed, sued out a subpoena, with injunction issued by order of the Chancellor enjoining and restraining the Sheriff of Green county and his deputy, Samuel Sympson, “from delivering possession of certain slaves to McCall and Craddock, or any one until the further order of the Court,” which he had taken from the complainants and then held in his possession, by virtue of a writ of replevin sued out against them by McCall and Craddock.

And at a subsequent term, and after their bill had been dismissed by consent, on the motion of Sympson, the deputy Sheriff, an inquiry was awarded and a jury summoned to inquire whether he was entitled to any thing, and if any thing, how much, for keeping, clothing, and furnishing medical attendance to said slaves while in his custody. The plaintiffs in error appeared in Court and joined issue with the'deputy, and made defence on the inquiry; and the jury having found for Sympson $260, the plaintiffs were ordered by the Chancellor to pay the same to him, and they now ask a reversal of this order.

We think the Chancellor had full power, with or without the intervention of a jury, to make the order. By his command, at the instance of the plaintiffs, an officer of the law had, in effect, been required to keep the slaves in his custody safely until the further order of the Court. He had done so, and been prevented from delivering them to the plaintiffs in replevin, and thereby discharging himself from further risk ox responsibility.

By the order he was subjected not only to the hazard of keeping them safely, but also to the cost of providing meat, drink, clothing, and medical attendance for them, and that in consequence of the command of the Chancellor on the application of the plaintiffs. The officer has a right to be compensated for this risk and these necessary charges, and the Chancellor, as an incident to his jurisdiction over the subject, has' the power to institute the inquiry, and order the compensation to be made.

Where the suit is at an end before such order is made, it is most regular to proceed by rule upon the responsibleparty; but if he appear, join issue, and make defence, without any application for continuance, and a jury pass on the amount of allowance, it cures the irregularity. Where an adm’r. files a bill enjoining the custody of personal property, though the property did once belong to their intestate, yet if the necessity for the proceeding proceed from their own actings, they are individually responsible for the expenses incident thereto. Harlan and Willis for plaintiffs; Monroe for defendant.

As the bill had been dismissed at a former term, and the parties out of Court, it would have been more formal to have brought them before the Court by rule to show cause.

But as they appeared, joined issue, and made defence to the inquiry, without application for a continuance or objection to the trial at the time it was had, there is no ground for the reversal of the order for this informality.'’ And though the Chancellor had the right, and it would probably harm been more appropriate for him to have heard the proof and fixed the amount of compensation himself, it was competent for him to submit the inquiry to a jury as the means of enlightening his conscience as to the amount that should be allowed.

As the evidence is not spread on the record, nor any exceptions taken, nor motion for a new trial made, we cannot say that the amount allowed was unreasonable. Nor is the objection tenable that the order was made on the plaintiffs to pay absolutely, and not out of the assets in their hands.

Though they filed the bill as administrators of one.Skeggs, the difficulties grew out of their own individual transaction after they were appointed administrators, and upon their individual motion, and upon the execution of their individual bond the restraining order was issued, and the officer has a right to look to them for his compensation. It is, therefore, the opinion of this Court that the order of the Chancellor be affirmed with costs, &c.