Page images

object of the writ is to enforce the appearance of the party, and to lay the foundation of further proceedings, the officer will not be permitted to justify under it, after it is returnable, unless he shows that he has fully obeyed it in making a return.' (a) The proofs in regard to fraud are considered as foreign to the design of this work.?

§ 598. Competency of witnesses. In regard to the competency of witnesses for and against the sheriff, in addition to what has already been stated respecting his deputies and the execution creditor, it may here further be observed, that, where the issue is upon a fraudulent conveyance by the judgment debtor, his declarations, made at the time of the conveyance, are admissible as part of the res gestæ ; and that, where the question is wholly between his own vendee and the attaching creditor, his interest being balanced, he is a competent witness for either party ;4 but where a question remains between him and his vendee as to the title, he is not a competent witness for the sheriff to impeach it. A surety is a competent witness for the sheriff, in an action for taking insufficient sureties. The owner of goods, who has forcibly rescued them out of the sheriff's hands, is also a competent witness for the sheriff, in an action for falsely returning nulla bona on an execution ; for such return precludes the sheriff from maintaining an action against him for the rescue.? (6)

1 Rowland v. Veale, Cowp. 18 ; Cheasley v. Barnes, 10 East, 93 ; Freeman v. Bluett, 1 Salk. 410 ; 1 Ld. Raym. 633, 634 ; Clark v. Foxcroft, 6 Greenl. 296; Russ v. Butterfield, 6 Cush. 243 ; Roberts v. Wentworth, 5 Id. 192. See Wilder v. Holden, 24 Pick. 8, 12.

See Roberts on Fraudulent Conveyances, pp. 542-590, 2 Kent, Comm. 532-536, where this subject is fully treated. Where the goods were taken on execution, and were found in the possession of the judgment debtor, and are replevied by a person claiming title as owner of them, the burden of proof is on the plaintiff in replevin to show his own title ; but if they were taken out of the plaintiff's possession, the burden of proof is on the officer, to show that they were the property of the judgment debtor. Merritt v. Lyon, 3 Barb. S. C. 110.

Supra, $8 583, 593.

Ante, vol. i. $$ 397, 398. 5 Bland v. Ansley, 2 New Rep. 331. In this case, the debtor had sold a house to the plaintiff, but whether he sold the goods in it also was a matter in dispute between them ; and he was therefore held incoinpetent to testify in favor of his own claim.

6 1 Saund. 195 f, note by Williams. 7 Thomas v. Pearse, 5 Price, 547.

3 4

(a) “The general doctrine is well estab. (6) So the defendant, on whom the exlished, that, if a sheriff seizes goods under ecution was levied, is competent as a wit. a writ which it is his duty to return, he ness in an action against the officer who has no justification unless he discharges levied the execution, for the money col. that duty." Hoar, J., in Williams v. Bab- lected. Grandstaff v. Ridgeley, 30 Gratt. bitt, 14 Gray (Mass), 141.

(Va.) 1.

$ 599. Damages. The damages to be recovered in an action against the sheriff will, in general, be commensurate with the extent of the injury. (a) But in debt, for an escape on execution, the measure of damages is the amount of the judgment, without abatement on account of the poverty of the debtor, or any other circumstances. (6) And where the sheriff has falsely returned bail, when he took none, and an action is brought against him for refusing to deliver over the bail-bond to the creditor, he is liable for the whole amount of the judgment, and cannot show, in mitigation of damages, that the debtor was unable to pay any part of the debt; for this would be no defence for the bail themselves, and the sheriff, by his false return, has placed himself in their situation. But in other cases, though the judgment recovered by the plaintiff against the debtor is prima facie evidence of the extent of the injury which the plaintiff has sustained by the officer's breach of duty in regard to the service and return of the process, yet it is competent for the officer to prove, in mitigation of the injury, any facts showing that the plaintiff has suffered nothing,

1 Hawkins v. Plomer, 2 W. Bl. 1048 ; Alsept v. Eyles, 2 H. Bl. 108, 113 ; supra, $ 589 ; Bernard v. Commonwealth, 4 Litt. 150; Johnson v. Lewis, 1 Dana, 183; Shewell v. Fell, 3 Yeates, 17 ; 4 Yeates, 47. Interest, from the date of the writ, may also be computed. Whitehead v. Varnum, 14 Pick. 523. In some of the United States, the rule of the common law, that the whole sum must be given, has been altered by statutes abolishing the action of debt for an escape ; and the rule is never applied, in any State, to an action of debt upon the sheriff's bond.

2 Simmons v. Bradford, 15 Mass. 82.

(a) So, in an action against him for of the sureties. Robinson v. People, 8 Ill. neglect to levy on land, the measure of App. 279. damages is the amount that would have (6) In New York, the Civil Code, $ 158, come to the plaintiff on a sale of the land provides in substance that in all cases which ought to have been levied on. Har- where the debtor is committed on final proris v. Murfree, 54 Ala. 161.

cess and escapes, the sheriff shall be anAnd in an action for neglecting to re- swerable for the sum for which he was comturn an execution, if it appears that there mitted, and restricts evidence in mitigation was little available property of the judg. of damages to cases where the prisoner was ment debtor, a judgment for the whole committed on mesne process. Dunford v. amount of the execution is too large. Dol. Weaver, 21 Hun (N. Y.), 349 ; Smith v. son v. Saxton, 18 N. Y. Supreme Ct. 565. Knapp, 30 N. Y. 592 ; Ledyard v. Jones,

But in such cases, the burden of proof 3 Seld. (N. Y.) 550. is on the officer to show that the loss is thus This is probably the law generally, limited. The presumption is, unless the though in some cases the language of the contrary appears in the course of the evi: court tends towards drawing a distinction dence, that the plaintiff suffered a loss equal between a negligent escape and a voluntary to the whole amount of the execution. escape, and allowing the defendant in the Moore v. Floyd, 4 Oreg. 101.

former cases to show the insolvency of the So in an action against an officer for debtor in mitigation of damages, and not taking a bad replevin bond, the plaintiff in the latter. State v. Mullen, 50 Ind. 598; can recover only the damages which he State v. Hamilton, 33 Ind. 502. Cf. Craue has actually suffered by the insufficiency v. Stone, 15 Kans. 94.

or but little, by his unintentional default or breach of duty. The jury may give more than the amount of the judgment, if they believe that the wrong was wilful on the part of the officer, by adding to it the incidental expenses of the plaintiff, and the costs not taxable. On the other hand, if it should be apparent that the wrong done by the officer was not the result of a design to injure, and that by it the plaintiff is not placed in a worse situation than he would have been in, had the officer done his duty, the jury will be at liberty, and it will be their duty, to see that a humane or mistaken officer is not made to pay greater damages than the party has actually suffered by his wrong. In cases, therefore, of the latter description, the sheriff has been permitted to show, in mitigation of damages, that the debtor was poor, and unable to pay the debt ;8 or that he might still be arrested as easily as before, the sheriff having omitted to arrest him while sick and afflicted ;4 or that, for any other reason, the plaintiff has not been damnified. (a) If the action is for an escape on mesne process, and the sheriff afterwards had the debtor in custody, the plaintiff cannot maintain the action, without proof of actual damages. In the action for taking insufficient sureties, the plaintiff can recover no more against the sheriff than he could have recovered against the sureties.7

1 Evans v. Manero, 8 M. & W. 463, 473, per Lord Abinger, C. B.; Williams v. Mostyn, 4 M. & W. 145. And see Weld v. Bartlett, 10 Mass. 470 ; Gerrish v. Edson, 1 N. H. 82; Burrell v. Lithgow, 2 Mass. 526 ; Smith v. Hart, 2 Bay, 395.

2 Weld v. Bartlett, 10 Mass. 470, 473, per Parker, J.
8 Brooks v. Hoyt, 6 Pick. 468.
4 Weld v. Bartlett, 10 Mass. 470.

6 Baker v. Green, 2 Bing. 317; Potter v. Lansing, 1 Johns. 215; Russell v. Turner, 7 Johns. 189; Young v. Hosmer, 11 Mass. 89 ; Nye v. Smith, Id. 188; Eaton v. Ogier, 2 Greenl. 46.

6 Planck v. Anderson, 5 T. R. 37, confirmed in Williams v. Mostyn, 4 M. & W. 145, 154, where Baker v. Green, 2 Bing. 317, is, as to this point, overruled. See also Bales v. Wingfield, 4 Ad. & El. n. s. 580.

? Evans v. Brander, 2 H. Bl. 547, confirmed in Baker v. Garratt, 3 Bing. 56.

(a) Shippen v. Curry, 3 Met. (Ky.) 184. show that the property, when sold by him. But in Cassin v. Marshall, 18 Cal. 689, in self at sheriff's sale, brought full and fair an action against a sheriff for an illegal auction prices, and what those prices aclevy, although it appears that the plaintiff tually were, and that the sale was by a was himself about to have sold the goods competent auctioneer, was properly relevied on at public auction, it was held jected. that evidence offered by the defendant to


$ 600. Plea of tender. The plea of tender admits the existence and validity of the debt or duty, insisting only on the fact that there has been an offer to pay or perform it. (a) And though the contract be one which the Statute of Frauds requires to be in writing, yet the plea of tender dispenses with the necessity of proving it. The general proposition maintained in the plea is, that the defendant has done all that was in the power of any debtor alone to do, towards the fulfilment of his obligation; leaving nothing to be done towards its completion but the act of acceptance on the part of the creditor. If the tender was of money, it is pleaded with an averment that the defendant was always and still is ready to pay it, and the money is produced in court. But if the obligation was for the delivery of specific chattels, other than money, a plea of the tender alone, without an averment of subsequent readiness to perform, is sufficient; the rule requiring only the averment of an offer and readiness to do that which is a discharge of the obligation.?

$ 601. Money. To support the issue of a tender of money, it is necessary for the defendant to show that the precise sum, or more, was actually produced in current money, such as is made a legal tender by statute, and actually offered to the plaintiff.4

1 Middleton v. Brewer, 1 Peake, 15. 2 2 Roll. Abr. 523 ; Tout temps prist, A. pl. 1, 3, 5; Carley v. Vance, 17 Mass. 392.

8 A tender of part of an entire demand is inoperative. Dixon v. Clark, 5 M. G. & S. 365 ; 5 Dowl. & L. 155 ; Smith v. Anders, 21 Ala. 782.

4 The current mouey of the United States, which is made a legal tender by statute, consists of all the gold and silver coins of the United States ; together with Spanish milled dollars and their parts, at the rate of one hundred cents for a dollar, weighing not less than seventeen pennyweights and seven grains ; the dollars of Mexico, Peru, Chili, and Central America, of not less weight than four hundred and fifteen grains each, at the same rate ; those restamped in Brazil, of the light weight, of not less fine

(a) But it admits the debt only to the that amount, but not for costs. If the amount of the tender. Eaton v. Wells, 82 money has not been paid into court, the N. Y. 576. So it does in tort, if there be tender is invalid, yet the admissions of the but one cause of action set out in the plea still bind the defendant, and the declaration. Bacon v. Charlton, 7 Cush. plaintiff may have judgment for the a. (Mass.) 581, 583. The admission binds mount of the tender and costs. Monroe v. the defendant, and the plaintiff has a Chaldeck, 78 Ill. 429 ; Pillsbury v. Wil. right to have judgment entered for him to loughby, 61 Me. 274.

But, if a tender is made in bank-notes, it is good, if the want of its being in current coins is waived ;(a) and if the creditor places his refusal to receive the money on some other ground, or even if he makes no objection to the tender on the express ground that it is in bank-notes, it is held a waiver of this objection. So if the tender is made in a bank-check, which is refused because it is not drawn for so much as the creditor demands, it is a good tender.2 (6)

$ 602. Same subject. It must also appear, that the money, or other thing tendered, was actually produced to the creditor. It must be in sight, and capable of immediate delivery, to show, that if the creditor were willing to accept it, it was ready to be paid.3 If it be in bags, held under the party's arm, and not laid on the table or otherwise actually offered to the creditor, it is not sufficient.4 And if it be in the debtor's hand, and the sum is declared, and it is offered by way of tender, it is good, though it be in banknotes, twisted in a roll, and not displayed to the creditor. But if the sum is not declared, or the party says he will pay so much, putting his hand in his pocket to take it, but before he can pro

ness than ten ounces and fifteen pennyweights of pure silver to the pound troy of twelve ounces of standard silver ; and the five-franc pieces of France, of not less fineness than ten ounces and sixteen pennyweights of pure silver to the like pound troy, and weighing not less than three hundred and eighty-four grains each, at ninety-three cents each. Stat. 1837, c. 3, SS 9, 10 ; Stat. 1834, c. 71, § 1; Stat. 1806, c. 22, § 2. Foreign gold coins ceased to be a legal tender after November 1, 1819, by Stat. 1819, c. 507, § 1. Copper cents and half-cents are established as part of the currency, and by implication made a legal tender, by Stat. 1792, c. 39, § 2. A tender of the creditor's own promissory note, due to the debtor, is not good. Cary v. Bancroft, 14 Pick. 315; Hal. lowell and Augusta Bank v. Howard, 13 Mass. 235.

1 Wright v. Reed, 3 T. R. 554 ; Snow v. Perry, 9 Pick. 542 ; Brown v. Saul, 4 Esp. 267 ; Polglase v. Oliver, 2 C. & J. 15; Warren v. Mains, 7 Johns. 476 ; Towson o. Havre de Grace Bank, 6 H. & J. 53 ; Coxe v. State Bank, 3 Halst. 72 ; Bank of the United States v. Bank of Georgia, 10 Wheat. 333.

2 Jones v. Arthur, 4 Jur. 859; s. c. 8 Dowl. P. C. 442.

3 Thomas v. Evans, 10 East, 101 ; Glasscott v. Day, 5 Esp. 48 ; Dickinson o. Shee, 4 Esp. 68 ; Bakeman v. Pooler, 15 Wend. 637 ; Kraus v. Arnold, 7 Moore, 59; Breed v. Hurd, 6 Pick. 356 ; Newton v. Galbraith, 5 Johns. 119.

4 Bull. N. P. 155 ; Wade's Case, 5 Co. 115. 6 Alexander v. Brown, 1 C. & P. 288.

6 Ibid.

(a) A contract may call for payment in tion of the contract does not render the any kind of currency which the parties tender invalid. Black v. Lusk, 69 Ill. 70. may agree on and indicate in the contract, So held of United States treasury notes. and a tender of such currency is a valid Longworth v. Mitchell, 26 Ohio St. 334. tender; but when the contract has been (6) The effect of a refusal by the credi. broken and judgment is obtained on it, the tor of the sum, if it is properly tendered, judgment must be paid in legal tender. is to relieve the debtor from any subsequent White v. Prigmore, 29 Ark. 208. The interest and costs. Gracy v. Potts, 4 Baxt. fact that what is legal tender at the time (Tenn.) 395 ; King v. Finch, 60 Ind. 420; the money is due under the contract was Hamlett v. Tallman, 30 Ark. 505. not legal tender at the time of the forma

« PreviousContinue »