Appeal from the Sixth Judicial District.

On the twenty-first of December, 1857, respondents Cashman and Sullivan, who were merchants transacting business in the city of San Francisco, commenced an action in the Fourth District Court of that city, for goods sold and delivered, against Moses Harris, S. Seigman and John Doe Harris, whose real given name plaintiffs alleged to be unknown, and prayed to insert when known, doing business under the firm name of Harris & Seigman. Summons was duly issued thereon, and by the Sheriff returned “ not served ” through inability to find any of the defendants. Afterwards, on the second of March, 1858, the attorney for Sullivan and Cashman made an affidavit for an order of publication, setting forth the return of the summons nnserved, etc. In this affidavit he entitled the', cause “ O. D. 0. Sullivan and William Oashman v. Moses Harris S. Seigman and William Harris.” By what authority the name-of William Harris was substituted for that of John Doe Harris, does, not appear.

Upon this affidavit, the Court made an order for publication .of summons in the cause, which order was entitled O. D. 0. Sullivan v. Moses Harris et al. Thereupon, the publication of the summons was made for the prescribed time, the published summons being addressed to Moses Harris, S. Seigman and William Harris. On the twenty-first of June, 1859, judgment was entered in said cause against Moses Harris, S. Seigman and William Harris. This judgment was entitled “ William Oashman and O. H (A, Sullivan v. Moses Harris, 8. Seigman, and William Harris sued under the name of John Doe Harris.” It appears that Cashman had, some three or four months before entering bis judgment, ascertained that a firm of William Hams & Co., composed of one William Harris and appellant, E. C. Selden, was doing business in Sacramento. Supposing this William Harris to be the party named in the publication affidavit of his attorney, he proceeded to Sacramento to inquire into his responsibility, and consulted an attorney, F. Hereford, in reference thereto. Hereford told him, that, by virtue of a decision of this Court, he was entitled, under judgment against William Harris, to levy upon the interest of that person in the firm of William Harris & Co. Cashman represented to Hereford that he then held a judgment against William Harris and others, and requested Hereford to inquire into the business of the firm, and ascertain if the money could be made. After a lapse of three or four months, Hereford wrote to him to send up the execution. Cashman thereupon procured the judgment to be entered as before stated, to wit—on the twenty-first of June, 1859—and immediately sent up the execution to the Sheriff of Sacramento, who, on the twenty-fourth of June, 1859, levied on all the goods, wares and merchandise of William Harris, and appellant E. C. Selden, and closed their store.

Under the levy, the property was held in custody for about a week, during which time the store remained closed and the business of the firm suspended. Harris’ interest in the property was then sold by the Sheriff at auction, and bought in fpr Harris and Selden for a nominal amount, although really of much value.

Upon the eighth of July, 1859, Harris applied by motion to set aside the judgment which had been rendered against him, and upon a plain showing that he was not the person intended to be sued, and had no connection with the subject matter of the action, by consent of plaintiff’s attorneys the motion was granted.

The present action is brought by E. 0. Selden to recover from Cashman, Sullivan and the Sheriff who made the levy, damages for the injury sustained by him by the levy upon the firm property of himself and Harris, and its detention and sale; the complaint avering that he sustained great loss in the injury done to his business and to Ms credit, and in the diminution of the profits of his trade during the existence of and subsequently to the levy; and averring also, that defendants were actuated by malice in making the levy, and made the same without having any reason to suppose that the judgment against plaintiff’s partner, Harris, was valid.

Defendants, in their answer, justify under the judgment and execution, and aver that they acted in good faith, in the full belief that the judgment was just and legal.

The principal question upon the trial was as to the malice of defendants, and whether their conduct had been such as to entitle the plaintiff to recover exemplary damages.

The evidence mainly relied upon by plaintiff on tMs point, is as follows:

Haswell, Deputy Sheriff, says: “ I was at the store of William Harris & Co. very shortly after the levy was made, etc. Cashman (defendant) was there, and instructed me to levy on the horse and wagon belonging to the firm in addition to the goods, and I did so. He also instructed me to keep the property as secure as possible.” Again: “Before they (the books of account) were locked up, I afiowed defendant, Cashman, to examine them.” And again: “ Plaintiff was there, and called my attention to the fact that Cash-man was examining them, (the books of the firm) and complained. I replied that I supposed Cashman to be a partner, and on my learning that he was the execution creditor, I took the books from Mm.” And again: “ The store was closed under the execution. Cashman was present when I was there. Selden (plaintiff) came several times to inquire about the books and demanded them, but they were refused.”

Another witness, Hastings, the Sheriff’s keeper, testifies: “ One man called to pay the firm money, but I did not receive it, having no authority. Plaintiff remonstrated against closing the store at the beginning. Cashman (defendant) was there. Ho attention was paid to plaintiff’s objection.” Again: “ There were no goods sold during the seven days, nor any business done. At the Sheriff’s sale I was present, as also Cashman. He inquired of me while we were taking an inventory, how the goods were turning out. He passed the store, I think, almost every day. Once or twice he inquired how the stock was turning out. Several persons came there during the time I was there, and wanted to buy. Selden frequently remonstrated against the closing of the store. No attention was paid to his remonstrance.” Again: “ Selden, the plaintiff, at first had access to the books; he was subsequently refused, because Manlove, the Sheriff, came down to the store while Selden was looking at the books by permission of Under Sheriff Baker. Manlove came "in and took them from him and ordered them locked up.”

Another witness, Gf. H. Cushing, testified: “ I was present when Selden asked Manlove for permission to see the books; he demanded permission, and Manlove (the Sheriff) said he was indemnified, was carrying out instructions from Cashman and Sullivan, (defendants) as I understood him, and refused.” Again: “ I was present when Selden made a direct appeal to Cashman to let the business go on. He said it was a hard case for him; that he knew nothing about the suit against William Harris; that Harris was away; that he (Selden) didn’t know that Harris owed anything, or that there were judgments against him; that he (Selden) was an innocent party, and that the levy, if it continued, would break him up. Cashman.replied, that he would have to go on and get his pay; he was able to respond to any damage they might get against him. Selden made a proposition to Cashman to have a receiver appointed to take charge of Harris’ interest, or to take from him (Selden) a bond of indemnity sufficient to indemnify him for Ms rights in the premises, or to let some suitable person be put in charge of Harris’ interest, to take care thereof, so as to let the business go on, but Cashman refused all these propositions.”

Another witness, William May, testifies: “At the sale under the levy, defendandat Cashman was present. Mr. Plyer, plaintiff’s attorney, forbade the sale. Cashman ordered it to go on, notwithstanding. I saw Cashman one day overhauling the books.”

Another witness, J. 0. Corn-sen, testifies: “ The books were taken to the Sheriff’s office. I went for them, as plaintiff’s agent, and asked for them in the name of plaintiff. Cashman and Baker, Under Sheriff, were examhnng them. I demanded that they should be. returned, but they (that is, Cashman and Baker-) refused to give them up. I did not get them until I procured counsel, Mr. Hyer. We then demanded the books, and they were returned to the store.”

Jesse Morrill, says: “I was present at the time the levy was made. Defendant Cashman and the Sheriff were also present. Plaintiff asked Cashman by what authority the levy was made. Cashman replied, on an execution against William Harris. Plaintiff said there could not be anything sold until after the partnership debts were paid, and that he did not know that Harris owed anything. Cashman thereupon told the Sheriff to go on and do his duty, to take possession and close up the store, and that they, defendants, would be responsible; that them house was responsible for anything they ordered there done. Selden said he did not want the store closed up; he would give good bonds so that defendants should not go on and close up the store and ruin him. Cashman would not consent to take any bonds. He insisted upon having the store closed. He would not hearken to any proposition at aE from Selden, but directed the Sheriff to close the store. I was at the store probably every day between the levy and the sale. During that time, a number of persons came to make purchases. They could not get anything.” And again: “ Cashman told the Sheriff to take charge of the store and see that nothing went out.”

Evidence was also introduced, showing that the business of plaintiff was materially injured by the levy and closing up of the store; that his credit was impaired, and that for several months the effects were felt in'a loss of trade.

Plaintiff offered evidence tending to show the probable difference between the profits of his business for the ten months succeeding the levy, and the profits which would have been realized had no interruption of his business by the levy taken place. On defendants’ objection that these damages were too remote, the Court excluded the evidence, to which plaintiff excepted.

On this point, however, the witness, Cushing, testified, without objection, that at the time of the levy, plaintiff’s firm was doing a business of $3,500 to $4,500 a month; that the profit thereon was thirty-three and one-third per cent., or one-third of the amount; and that diming the first month after them resumption, the business was reduced to one-fourth or one-fifth of what it had been, and did not finally recover until about nine months afterwards.

Plaintiff asked the Court to instruct the jury :

“ 1. That if, in their opinion, the defendants acted wantonly, under the evidence, they can give vindictive damages.

“ 2. That if, in the opinion of the jury from the evidence, the defendants acted either wantonly or oppressively, or with gross negligence of plaintiff’s rights, they can give exemplary damages.

“ 8. That if, in the opinion of the jury from the evidence, the defendants acted either wantonly, maliciously or with gross negligence of plaintiff’s rights, or oppressively, the jury can give consequential damages.

“4. That the jury can determine from the evidence whether defendants acted either wantonly, oppressively or with gross negligence of plaintiff’s rights, or maliciously.”

These instructions were refused by the Court, and plaintiff excepted.

The Court thereupon gave the jury the following instructions : “ I shall charge that malice or gross or willful disregard of plaintiff’s rights has not been sufficiently established to allow the jury to find vindictive or consequential damages.”

The Court further charged the jury as follows: “ In a great measure I have cut off plaintiff from his main source of expectation of a verdict. The plaintiff may be regarded as owner of the stock of liquors in the store which was seized and closed up under execution against Harris & Co. That execution was void as against Wm. Harris, and the Sheriff and defendants were trespassers in taking possession of the goods and detaining them; and plaintiff is entitled to sue for and recover all the damages he has sustained. These damages are not those remote, contingent, hypothetical, doubtful damages which arise on profits which plaintiff might have made. You cannot estimate those. What you can estimate is the direct damage to his business and goods resulting from their seizure and detention. You cannot estimate any damage by way of interest, as the value of the goods has not been proved; and it is merely because I believe that plaintiff has been injured and damaged more than the interest upon the value of his goods during them detention would amount to, that I now instruct you that he is entitled to recover the profits he would have made on sales during the detention. After the property was restored to him, and it was restored intact, the damages that may have ensued are too remote, consequential and doubtful to be allowed for in your verdict. In addition to these damages, you may regard the expenses&emdash;twenty-five dollars&emdash; testified to by Cushing. The injury which afterwards resulted was from another source, and cannot now be recovered for in damages. Your verdict should be a liberal compensation within the limits I have prescribed, but must not go so far as to indicate prejudice, or it would be hereafter set aside by the Courts.” To which said charge, and each and every part thereof, plaintiff then and there excepted.

The jury found for plaintiff three hundred dollars damages. Plaintiff moved for a new trial, which was refused; and from this order and from the judgment plaintiff appeals.