¶1The opinion of the court was delivered by
¶2A voluminous record discloses that plaintiff’s son became her agent in 1888. That in January of that year he had an interest in a store in Thibodeaux, conducted entirely in the name of another.
¶3That in February the parties disagreed and there was a dissolution of the business venture.
¶4■That the retiring partner was allowed to take out the daily cash receipts, during a number of days, to an amount equal to his interest.
¶5In that manner the settlement with him was made.
¶6As he was retiring and the only known interested party, and the son deemed it to his interest, the store was transferred to the mother, the plaintiff in this case.
¶7In April, 1888, it was sold by plaintiff to L. A. Gourdain.,
¶8During this ownership of the latter, about two months, one Mel-chert became an interested party, but soon dissolved his connection with the establishment.
¶9Oourciere’s name also figures as a part owner.
¶10On the 18th of June Gourdain sold to plaintiff’s agent.
¶11The price was $1400 — cash $500 and $900 in notes.
¶12She assumed charge through the agency of her son.
¶13On the 18th of that month the store was closed, under a writ of *291attachment, issued in the case of Philip Thompson vs. Gourdain and Courciere, and the goods and merchandise were attached and seized to satisfy an amount due by the former to the latter. The deed of sale, Gourdain to plaintiff, was in' the iron safe in the store and was taken possession of by the sheriff’s deputy who made the seizure.
¶14Plaintiff’s agent and two other witnesses testify that he informed the deputy at the time that the property belonged to the plaintiff.
¶15The verity of this testimony is denied by two of defendant’s witnesses, who, with other witnesses, testify that the property did not belong to plaintiff, that it was the property of her son.
¶16The theory of the defendant is that he sought to evade the pursuit of his creditors by placing the property in the name of the plaintiff.
¶17That she was without interest to bring this suit.
¶18The property attached was sold at public auction by the sheriff, it was perishable property, and brought |850.
¶19;H sfs ¡¡t i{s sfc
¶20An exception of no cause of action and estoppel was filed.
¶21On appeal to this court, in the year 1889, it was decided that plaintiff had a cause of action, and if the sheriff desired to protect himself under Act 87 of 1882 “it was his duty to require the claimant to make the affidavit prescribed in the law as a basis for his exacting from the plaintiff in suit the bond of indemnity.” Macias vs. Sheriff et al., 41 An. 300.
¶22To this extent the issues are settled on appeal and we must accept as correct the conclusion reached.
¶23The ease was remanded.
¶24% ¡¡: :i: '¡¡i ¡¡t # ¡¡t
¶25The first ground of defence presented after the case had been remanded was that no action could be maintained against the defendant, a bond of indemnity having been furnished by the seizing creditor, Philip Thompson, under the provisions of Act 37 of 1882, and by the sheriff assigned to the plaintiff; the effect of which is, they contend, to release the sheriff and his sureties.
¶26The plaintiff declines to accept the bond.
¶27The court a qua decided that the indemnity bond did not affect plaintiff’s rights, they having been determined on this point in the previous decision of this court.
¶28The question of fraud and simulation by plaintiff as against Thompson’s claim did not arrest the attention of the court a qua, but *292the matter at issue was treated as an attempt on the part of the agent, Eugene Rousseau, to protect himself (he being an insolvent) from his own creditors by carrying on business in the name of his. mother, the plaintiff, who was therefore, the court held, without interest to stand in judgment, as the property really belonged to the-son. Prom the judgment decreeing that the property belonged to the son, Eugene Rousseau, the plaintiff appeals.
¶29… if: …
¶30Bill op Exceptions..
¶31The defendants objected to plaintiff’s testimony in so far as relates, to ownership of the property.
¶32The plaintiff sets forth the character of her ownership at some length, such as that through negotiations carried on in her name, through her son and recognized agent, Etienne Rousseau, she acquired a stock of goods and was carrying on business.
¶33The defendant objected to her evidence on the ground that there was no allegation of the name of the person from whom the purchase was made; nor with reference to the origin of the title.
¶34There was no plea of vagueness formally presented, nor prayer for bill of particulars.
¶35If the defendant needed particulars to enable him to prepare his defence, he could have required more accuracy in the demand. Davis vs. Madden, 27 An. 633; Lewis vs. Mieston, Morrison & Co. et al., 26 An. 707; Arrowsmith vs. Durell et al., 14 An. 849.
¶36The testimony was properly admitted.
¶37With reference to the bond of indemnity executed by the seizing creditor in favor of the sheriff and which he has offered to assign to the plaintiff.
¶38It appears to have been executed on the 15th day of March, 1889.
¶39It was filed in the clerk’s office on the 25th of March, 1889, after the decision of this court.
¶40It having been decided that plaintiff had a right of action, it was • no longer possible to defeat' that right by tendering a bond of indemnity.
¶41The officer was notified that the property was owned by one not a party to the suit; he nevertheless proceeded with the suit and thereby became responsible.
¶42*293The plaintiff in whose name the deed of sale was executed, who was in possession, claimed the property as her own.
¶43********
¶44The testimony failed to prove the allegation of defendant’s answer, that the purchase was a fraud and simulation on the part of plaintiff to protect Gourdain & Courciere.
¶45The cash portion of the sale was paid, and it is not satisfactorily shown that there is any sei’ious gi’ound to contest the consideration of the -notes due by the plaintiff for the credit portion. They are unpaid, but their collection is earnestly expected.
¶46… …
¶47The judgment appealed from did not maintain the attachment, but decided that plaintiff was without interest to maintain its illegality.
¶48The argument of defendants’ counsel is principally in support of the correctness of the judgment.
¶49In 1888 plaintiff appointed her son Etienne her agent.
¶50He in that capacity sold the store which was in plaintiff’s name.
¶51On the thirteenth day of June, 1888, it again became hers by purchase, as mentioned in the first part of this decision.
¶52A few days after her ownership under the last sale had commenced, and after she had gone into possession, the property was attached and seized by Philip Thompson, a third person, to pay and satisfy a debt of Gourdain and Courciere to him.
¶53Whatever fraud may have been committed by the latter, it is not shown that plaintiff was a pax’ty.
¶54The son’s testimony, the agent and that of a brother, also the instruments of writing, make it evident that the plaintiff had the interest of an owner.
¶55The son, to whom it is contended the property belongs, testifies that it is not his, but his mother’s.
¶56This testimony is not uncorroborated.
¶57If part of the funds applied to the payment of the cash p’ortion of the sale were furnished by the son, this would not be cause to divest her of her ownership, particularly when the question arises between her and the plaintiff in attachment proceedings, to which she is not a party.
¶58The sale is not wanting in reality, in so far as the attaching creditor is concerned.
¶59The demand of the defendants is not to have title to the property *294recognized as theirs, nor to have the proceeds applied to the payment of creditors, but to have the title decreed to be in another than the plaintiff, and thereby to defeat the suit.
¶60To this end it is not shown that plaintiff is without interest.
¶61Let us concede that the sale was made to the son, it does not give any greater rights to the attaching creditors.
¶62But it was made to the plaintiff.
¶63We will not be understood as deciding that the attaching creditor could not aver and prove the title fraudulent under Act 46 of 1886, but we hold that he may, and thereby re-affirm the case of Schilte vs. Frese, sheriff, 42 An. In the last mentioned case the fraud and simulation were proven, while in the case under consideration the preponderance of evidence does not support such a conclusion.
¶64Having reached this conclusion, it devolves upon us to consider and determine the amount plaintiff should recover.
¶65The officer’s acts were not wanton and malicious.
¶66The functions of his office at. times require diligence, and he has delicate responsibilities imposed upon him.
¶67When malice is not shown and no intention to commit a wrong, his hasty acts should not be too severely judged.
¶68In the case at bar the actual value of the goods and merchandise attached will be the measure of damages.
¶69“The sheriff is only liable for such damages, arising in the discharge of his official duty, as shall be proved to have been actually sustained.” William Bogel vs. John M. Bell, 15 An. 263.
¶70Plaintiff claims profits she would have realized if the store had not been closed; for loss of business, of credit, and other damages. We are not impressed by the allegations made to recover on these grounds, nor by the testimony admitted in their support.
¶71Plaintiff may have been confident in the future of the business, decidedly inore than the facts warrant.
¶72The changes of ownership have been so frequent, there was such a want of permanence in the business, that we can not conclude that compensation should be allowed for these alleged causes of action.
¶73While she is not estopped from recovering the actual value of the property, we can not avoid recalling that her opposition to the attachment and sale was not as pronounced and active as it could, without impropriety, have been.
¶74*295There were acts of carelessness, as an owner, which must relieve the sheriff from considerable responsibility.
¶75Among them we will mention as an instance the fact that the license to the United States Government remained unchanged, and no steps, after the purchase, had been taken tó secure another.
¶76The prosecuting creditor is not before the court; as against the sheriff at whose instance he acted, we will fix the minimum amount proven as the value of the property.
¶77It was appraised in the first place at $1200; afterward at $1100. It was sold at auction for $850.
¶78We accept the last amount in fixing, the value, and the extent of defendant’s responsibility, together with interest and costs.
¶79It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered; it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff against the defendants, condemning them in solido to pay to her the sum of $850 with interest thereon at the rate of 8 per cent, per annum from judicial demand, and that defendants pay costs of both courts.