The plaintiff may give evidence of the terms on which the defendant visited his house, and that he was paying his addresses upon the promise or with intentions of marriage;1 and the defendant, on the other hand, may give evidence not only of the loose character and conduct of the daughter, but also, as it seems, of the profligate principles and dissolute habits of the plaintiff himself.2 (a)

1 Elliot v. Nicklin, 5 Price, 641; Tullidge v. Wade, 3 Wils. 18; Brownell v. McEwen, 5 Denio, 367; Capron v. Balmond, 3 Steph. N. P. 2356; Watson v. Bayless, and Murgatroyd v. Murgatroyd, cited 2 Stark. on Evid. 732, n. (t); supra, § 269. But see Dodd v. Norris, 3 Campb. 519, contra Haynes v. Sinclair, 23 Vt. 108; Dain v. Wycoff, 7 N. Y. 191.

2 Dodd v. Norris, 3 Campb. 519. Held otherwise in Dain v. Wycoff, 7 N. Y. 191 (1852). But an offer of marriage, after the seduction, cannot be shown in mitigation of damages. Ingersoll v. Jones, 5 Barb. S. C. 661.

the defendant. McAulay v. Birkhead, 13 Ired. (N. C.) 28; Peters v. Locke, 66 Ill. 206, where James v. Biddington, ante, § 55, is denied. Buller, N. P. 27; Mayne on Damages, 385; Grable v. Margrave, 3 Scam. (Ill.) 372; ante, §§ 55, 89, 269. Contra, Dain v. Wycoff, 7 N. Y. 191. And damages in such a case for the injury to the parents' feelings may be recovered, although there is no separate averment thereof in the declaration; such damages being a natural consequence of the principal injury. Taylor v. Shelkett, 66 Ind. 297; Rollins v. Chalmers, 51 Vt. 592; Phillips v. Hoyle, 4 Gray (Mass.), 568. The rule as to damage is the same whether

the daughter be a minor or of full age. Lipe v. Eisenlerd, 32 N. Y. 229.

(a) It is held in some States that the relative social position of the plaintiff and defendant may be shown to aggravate or mitigate the damages. White v. Murtland, 71 Ill. 250. A subsequent marriage of the daughter with the seducer, and an acquittal of the latter on an indictment for the seduction, may be shown in mitigation of damages. Eichar v. Kistler, 14 Penn. St. 282. And it has been held that an offer of marriage may be shown to mitigate the damages. White v. Murtland, 71 Ill. 250.

SHERIFF.

§ 580. Sheriff responsible for his subordinates. The law of evidence in actions against any officers, for misconduct in regard to civil process in their hands for service, will be treated under this head; the sheriff being the officer principally concerned in that duty. He is identified, in contemplation of law, with all his under-officers, and is directly responsible, in the first instance, for all their acts done in the execution of process.1 (a)

§ 581. Grounds of action. Actions against sheriffs are either for non-feasance, or mere omission of duty, — such as, (1) not serving process; (2) taking insufficient pledges or bail; (3) not paying over money levied or collected: or, for misfeasance, or improperly doing a lawful act, such as, (4) suffering the party arrested to escape; (5) making a false return: or for malfeasance, or doing an unlawful act, under color of process, such as, (6) extortion; (7) seizing the goods of one who is a stranger to the process. These will be considered briefly in their order.

§ 582. Proof of official character. Where the action for any of these causes is founded on the misconduct of an inferior officer, acting under the sheriff, his connection with the sheriff must be proved. If he is an under-sheriff or deputy, recognized by statute as a public officer, it will be sufficient, prima facie, to show that he has acted publicly and notoriously in that character. But if

1 Saunderson v. Baker, 2 W. B. L. 832; Jones v. Perchard, 2 Esp. 507; Smart v. Hutton, 2 N. & M. 426; s. c. 8 Ad. & El. 568, n.; Anon., Lofft, 81; Ackworth v. Kempe, 1 Doug. 40; Woodman v. Gist, 8 C. & P. 213; Watson v. Todd, 5 Mass. 271; Draper v. Arnold, 12 Mass. 449; Knowlton v. Bartlett, 1 Pick. 271; People v. Dunning, 1 Wend. 16; Gorham v. Gale, 7 Cowen, 739; Walden v. Davison, 15 Wend. 575; M'Intire v. Trumbull, 7 Johns. 35; Grinnell v. Phillips, 1 Mass. 530.

2 Ante, vol. i. §§ 83, 92. If the allegation is, that the defendant was sheriff on the day of delivery of the writ to him, and until the return-day thereof, proof of the former averment is sufficient, the latter being immaterial. Jervis v. Sidney, 3 D. & R. 483.

(a) No action lies against a sheriff upon a judgment recovered against his deputy. Pervear v. Kimball, 8 Allen (Mass.), 199. In Morgan v. Chester, 4 Conn. 387, the sheriff is said to be a joint trespasser with his deputy; but in Campbell v. Phelps, 1 Pick. (Mass.) 62, it is held that the party

injured must elect which to sue, regarding them as master and servant. They are held to be joint trespassers, however, in Waterbury v. Westervelt, 9 N. Y. 604, where the cases are fully examined, and the dissenting opinion of Wilde, J., in Campbell v. Phelps, supra, approved.

he is only a private agent or servant of the sheriff, other evidence is necessary. In these cases, a warrant is delivered to the bailiff, authorizing him to serve the process in question; and as this is the most satisfactory evidence of his appointment, it is expedient to produce it, or to establish its loss, so as to admit secondary evidence of its existence and contents.1 A paper, purporting to be a copy of the warrant left with the debtor by the bailiff, is not sufficient, it being the mere act of the bailiff, and of the nature of hearsay; nor will it suffice to produce a general bond of indemnity, given by the bailiff to the sheriff; for this does not make him the sheriff's general officer, but is only to cover each distinct liability that he may come under, in regard to every several warrant.2 But any subsequent act of recognition of the bailiff's authority, by the sheriff, such as returning the process served by the bailiff, or giving instructions for that purpose, is admissible to establish the agency of the bailiff.3 (a) The bailiff himself is a competent witness to prove the warrant under which he acted; but it will seldom be expedient for the plaintiff to call him, as he will be liable to cross-examination by the defendant, in a cause which is virtually his own.1

§ 583. Admissions of deputy as against sheriff. It may also here be stated, that the admissions of an under sheriff, or deputy, tending to charge himself, are receivable in evidence against the sheriff, wherever the under-officer is bound by the record; and he is thus bound, and the record is conclusive evidence against him, both of the facts which it recites, and of the amount of damages, wherever he is liable over to the sheriff, and has been duly notified of the pendency of the action, and required to defend it. (b) This principle applies to all declarations of the under

1 Ante, vol. i. §§ 559-563, 574, 575, 84, n.

2 Drake v. Sykes, 7 T. R. 113; as explained in Martin v. Bell, 1 Stark. 413.

8 Martin v. Bell, 1 Stark. 413; Saunderson v. Baker, 3 Wils. 309; 2 W. Pl. 832; Jones v. Wood, 3 Campb. 228. The return of a person styling himself deputy sheriff is not of itself sufficient evidence, against the sheriff, of the deputy's appointment. Slaughter v. Barnes, 3 A. K. Marsh. 413.

Morgan v. Brydges, 2 Stark. 314. And see ante, vol. i. § 445.
See ante, vol. i. § 180, and n.

(a) To discharge the sheriff from liability for the acts of his deputy, in obeying the instructions of the plaintiff, it must appear that the deputy, in his departure from duty, was obeying or attempting to obey the instructions of the plaintiff.

Sheldon v. Payne, 7 N. Y. 453. See also 10 N. Y. 398.

(b) In those States where the common. law rule still prevails, that interest in the result of a suit disqualifies a witness, a sheriff's deputy is not a competent witness

officer, without regard to the time of making them. But in other cases, where the record is not evidence against the underofficer, his declarations seem to be admissible against the sheriff, only when they accompanied the act which he was then doing in his character of the sheriff's agent and as part of the res gestæ,1 or while the process was in his hands for service. Upon the same general principle of identity in interest, the declarations of the creditor, who has indemnified the sheriff, are admissible in evidence against the latter in an action by a stranger for taking his goods.3

§ 584. Non-service of process. (1.) Where the action is against the sheriff for not serving mesne process, it is incumbent on the plaintiff to prove the cause of action; for which purpose any evidence is competent which would be admissible in the suit against the debtor. Hence the acknowledgment of the debtor that the debt is justly due is admissible against the sheriff.5 The plaintiff must also prove the issuing of process, and the delivery of it to the officer. (a) If the process has been returned, the regular

1 Ibid. See also vol. i. §§ 113, 114; Bowsheer v. Cally, 1 Campb. 391, n.; North v. Miles, Id. 389; Snowball v. Goodricke, 4 B. & Ad. 541.

2 Jacobs v. Humphrey, 2 C. & M. 413; s. c. 4 Tyrw. 272; Mott v. Kip, 10 Johns. 478; Mantz v. Collins, 4 H. & McHen. 216. In order to render the admissions of the deputy competent evidence against the sheriff, it is ordinarily sufficient to prove that he was a deputy of the sheriff, and that he acted colore officii, at the time, without proving the issuing and delivery of the precept under which he professed to act. Stewart v. Wells, 6 Barb. S. C. 79.

8 Proctor v. Lainson, 7 C. & P. 629.

Gunter v. Cleyton, 2 Lev. 85, approved in Alexander v. Macauley, 4 T. R. 611; Parker v. Fenn, 2 Esp. 477, n.; Sloman v. Herne, Id. 695; Riggs v. Thatcher, 1 Greenl. 68.

5 Gibbon v. Coggon, 2 Campb. 188; Williams v. Bridges, 2 Stark. 42; Sloman v. Herne, 2 Esp. 695; Kempland v. Macaulay, 4 T. R. 436; Dyke v. Aldrige, 7 T. R. 665.

for the sheriff, where the action is based on such deputy's misconduct. Odom v. Gill, 59 Ga. 180. But, in general, this objection now goes only to the credibility of the witness. Ante, vol. i. § 418 et seq.

(a) A defect in the process which is delivered to the sheriff, and for failure to enforce which he is sued, which renders the process voidable, will not excuse the officer for failure to enforce it; otherwise if the process is totally void. Forsyth v. Campbell, 15 Hun (N. Y.), 235. On the other hand, when the sheriff undertakes to act by virtue of a process which is absolutely void, he is not protected by it in a suit by the party against whom it was enforced, e. g., where a State

court process was issued and delivered to a sheriff, as a means of enforcing a pilot's claim for wages, the State court in such case having no jurisdiction of such a claim, the process is no defence to the sheriff. Campbell v. Sherman, 35 Wis. 103; Fisher v. McGirr, 1 Gray (Mass.), 45; Kennedy v. Duncklee, id. 71; Twitchell v. Shaw, 10 Cush. (Mass.) 46. But if the process is regular on its face, and issued by a magistrate having jurisdiction over the subject-matter, the officer is protected by it, though it may be voidable for some defect. Clarke v. May, 2 Gray (Mass.), 413; Donahoe v. Shed, 8 Met. (Mass.) 326; Johnson v. Fox, 59 Ga. 270. Cf. Campbell v. Sherman, 35 Wis. 103.

proof is by a copy; if not, its existence must be established by secondary evidence; and, if it is traced to the officer's hands, he should be served with notice to produce it. And here, and in all other cases, where the issuing of process is alleged, the allegation must be precisely proved, or the variance will be fatal.2 Some evidence must also be given of the officer's ability to execute the process; such as, that he knew, or ought to have known, that the person against whom he held a capias was within his precinct; or, that goods, which he might and ought to have attached, were in the debtor's possession.3 The averment of neglect of official duty, though negative, it seems ought to be supported by some proof on the part of the plaintiff, since a breach of duty is not presumed; but, from the nature of the case, very slight evidence will be sufficient to devolve on the defendant the burden of proving that his duty has been performed. (a) The damages will at least be nominal, wherever any breach of duty is shown; (b) and may be increased, according to the evidence.5

§ 585. Defence. In defence of actions of this description, where the suit is for neglecting to attach or seize goods, the sheriff may show that there were reasonable doubts as to the ownership of the goods, and that the plaintiff refused to give him an indemnity for taking them; or that they did not belong to the debtor.7

1 See ante, vol. i. §§ 521, 560.

2 Ante, vol. i. §§ 63, 64, 70, 73; Phillipson v. Mangles, 11 East, 516; Bevan v. Jones, 4 B. & C. 403; Bromfield v. Jones, Id. 380; Webb v. Herne, 1 B. & P. 281. See, further, Stoddart v. Palmer, 4 D. & R. 624; 3 B. & C. 2; Lewis v. Alcock, 6 Dowl. P. C. 78.

8 Beckford v. Montague, 2 Esp. 475; Frost v. Dougal, 1 Day, 128.

4 See ante, vol. i. §§ 78-81.

5 Baker v. Green, 2 Bing. 317; Clifton v. Hooper, 8 Jur. 958; 6 Ad. & El. N. s. 468; Williams v. Mostyn, 4 M. & W. 145; Marzetti v. Williams, 1 B. & Ad. 415. If the deputy sheriff undertakes to receive the amount of the debt and costs, on mesne process, and stay the service of the writ, the sheriff is liable forthwith for the amount received, without any previous demand. Green v. Lowell, 3 Greenl. 373.

6 Marsh v. Gold, 2 Pick. 975; Bond v. Ward, 7 Mass. 123; Perley v. Foster, 9 Mass. 112. See also Weld v. Chadbourne, 37 Me. 221. 7 Canada v. Southwick, 16 Pick. 556.

(a) The question of negligence in these cases is governed by the same general rules as in other cases. See ante, § 230. If, on the evidence offered, the judge is prepared to say that there is no evidence of negligence, he may direct the jury to find for the defendant, but not otherwise. It has been held in an action for a false return of non est inventus, that the fact that the sheriff, when he was given a writ to serve, did not inquire of the plaintiff where the defendant resided, is not, as

matter of law, evidence of negligence. Koch v. Coots, 43 Mich. 30. Where a sheriff is shown to be guilty of negligence in failing to serve a writ, the onus of showing that the defendant was insolvent falls on him. Jenkins v. Troutman, 7 Jones (N. C.), L. 169.

(b) So where a sheriff fails to return an execution within the time prescribed by law, this gives an action for damages. People v. Johnson, 4 Ill. App. 346.