Set-off and Counter-Claim.
SET-OFF AND COUNTER-CLAIM-Continued.
trespass and right of action, ex delicto, and to maintain an action, ex contractu, for the value of the property converted on an implied promise to pay the value of the property.-Eversole vs. Moore ---- 49
Indebitatus assumpsit might be maintained for the value of property tor- tiously taken and converted, and that which might be recovered in such an action may be plead as a set-off.—Ib. -- ....
3. According to the modern common law, recognized by our Code of Prac- tice, and late adjudications by this court, the vendee of personal prop- erty, is entitled by plea to the action for the price, to a recoupment of the damages resulting to him from the failure of the consideration. (2 Marshall. 86; 4th Littell, 157; 6 B. Mon., 523; 12 B. Mon., 465.)— Miller vs. Gaither _ __. 152
4. Although a partial failure of consideration was, before the adoption of the Code of Practice, not pleadable to an action on a note, yet it might have been remediable in equity.-Hackett vs. Schad ------ 353
5. The Cole requires all defenses, equitable as well as legal, to be pleaded to an action at law; and an equitable right, thus available, may be lost unless thus litigated; consequently, whenever the court saw that there was a partial, and only partial, failure of consideration, it ought to have considered the equitable defenses by transferring the case to the equity side of the docket, and, by a commissioner or otherwise, have ascertained the extent of the failure, and given credit for it in the judgment.—Ib.
The vendor of a slave being a creditor on a note for the price of the slave, with personal security against the estate of the deceased pur- chaser, after the purchaser's death, took possession of, and had said slave in his service, and listed him for work on the military railroad in 1863. If he converted said slave, he is liable for his value at the time of conversion, and for reasonable hire whilst in his possession after the vendee's death. If he illegally took possession, and by reason thereof the slave ran away and made his escape, he is liable to the extent he actually damaged the estate by so doing; and as he became the executor of his own wrong, to the extent he illegally interfered with the assets of decedent's estate, the amount and value of such assets in his hands should be regarded as a payment on his debt, and the surety should be permitted to set it up as an off-set, not as a mere trespass, but as assets in his hands as executor of his own wrong.-Finnell vs. Meaux. 449
Set-off and Counter-Claim-Sheriffs.
SET-OFF AND COUNTER-CLAIM-Continued.
7. The money value, but not the amount, of greenbacks, tortiously taken and appropriated, may be recouped or plead as a set-off, or may be recovered by suit-the trespass being waived. (See Eversole vs. Moore, ante, 49.)-Haddix vs. Wilson .
8. Double the value of property unlawfully taken may be recovered or plead as a set-off, when the unlawful taking comes within the pro- visions of "An act to provide a civil remedy for injuries done by dis- loyal persons." (Act of February 22, 1864, Myers' Sup., p. 1.)— Ib.
All objection to a defense plead as a counter-claim and set-off, which was not, in any manner, connected with the note sued on, is waived by a replication and issue.-Boyd vs. Day & Gorrell‒‒‒‒‒‒‒‒‒‒‒ 617 A set-off can only be allowed to a suit upon a contract, and growing out of a contract, as provided in section 128, Civil Code.-Brown vs. Phillips
1. When it appeared that the failure to make a debt was not the sheriff's fault, and certainly did not result from his failure to return the execu- tion within thirty days after the return day thereof, the plaintiff in the execution had no legal right to recover against him any portion of his uncollected debt under section 4, article 18, chapter 56, Revised Statutes. The amendatory act of August 28th, 1862 (Myers' Sup., 213), did not apply in this case, because it was enacted while this suit was pending. The plaintiff in the execution, consequently, was legally entitled to recover thirty per cent. on the uncollected balance of his execution for the failure to return within the thirty days.- Hill, &c., vs. Turner
2. Any bond required by law to be executed by a sheriff, should be regarded as an official bond, both in contemplation of the Consti- tution and the statute.-Commonwealth vs. Adams, &c.
3. Persons who, in September, 1865, voluntarily signed their names to the sheriff's old bonds, which had been executed in February, 1865, be- came liable to the same extent as if they had signed their names to such bonds when they were first executed in February, 1865.-16. 41 The county court had the power, as often as it deemed proper, to rule the sheriff to give additional sureties; and the signatures of the new sureties, whether signed to the old or new bonds, would make the bonds so signed by them official bonds as to such sureties.-Ib.--- 41
5. "We, the undersigned, authorize Thomas Pearce, jr., to sign our names to any bond required by law of W. J. Brewer, sheriff elect of Henry county, September 1865." Held-That the agent under this power had no right, and was not authorized, to sign the names of his principals to the old revenue bond of Brewer, which had been executed in February, 1865; and that the agent transcended his authority, and his act in putting their names to said bond, is not obligatory on them.-Ib.----- 41
The fee bill for half commission, for levying the fi. f., suspended by the creditor's order, and so returned, is regulated by the 7th article, chapter 38, Revised Statutes, 1 Stanton, 522. But the fee bill for sell- ing the land under venditioni exponas, after act of February 4, 1865 (Myers' Sup., 468), is regulated by that act.-Boyd, &c., vs. Har-
7. There being only one levy and one sale, the sheriff was entitled to no more than if the sale had been under the fi. fa., instead of the vend. ex. The levy and sale constituted but one entire official act; and as there could have been no sale without a levy, the sheriff had no right to charge for each of these constituent acts; and, consequently, if he charged full commission on the sale under the vend. ex., he had no right to charge half commission for the levy of the fi. fa.. suspended by plaintiff's order.—Ib.‒‒‒‒‒‒
The sheriff's right to full commission on the sale is not affected by the creditor's subsequent quashal of the sale directed by himself.-Ib. 142
By failing and refusing to make a reasonable attempt to execute a writ of arrest that night, which was placed in his hand about early gas- lighting, in the city of Louisville, and being admonished that the absconding dehter was at some of the hotels in said city, and that next morning would be too late to execute it-said absconding debtor having remained that night at the Planters' Hotel, in said city, and crossed over to Indiana at three o'clock next morning and escaped- the sheriff was guilty of gross negligence and disregard of official duty.-Phillips, &c., vs. Ronald, &c.‒‒‒‒‒‒
For want of proper and reasonable diligence in failing to execute a writ of arrest, the sheriff and his sureties in his bond are liable, at all events, to nominal damages; and if loss accrued by the non-exer- cise of such diligence and discharge of official duty by the sheriff, and a reasonable discharge of duty would have secured plaintiff's debt, or any part of it, the damages would be increased accordingly;
the measure of damages being the probable loss sustained by the plaintiffs.-Ib.
244 A sheriff having a writ of arrest for the purpose of executing it, at any time, whether night or day, is authorized by section 746 of the Civil Code to break into any house or inclosure, first having given the proper notice, &c., as required in said section.-Ib..‒‒‒‒‒‒‒ 244 12. Nothing to the contrary appearing, the court will presume the sheriff did his duty, and first levied those attachments which first came to his hands.-Phelps vs. Ratcliffe, &c. 334 The sheriff by law was authorized to sell so much land, and only so much, as was requisite to satisfy the executions under which he made the sale; and, having sold more land than was necessary to satisfy he exceeded his power, and the sale was void. This sale might have been quashed by motion, or set aside by suit.—Shropshire, Sc., vs. Pullen ____
When a sheriff transcends his powers in selling land under execution, and the sale is quashed or set aside, the commissions received and retained by him for making such sale may be recovered in an action against him. The statute of limitations against such action will not commence to run until the sale is set aside or quashed.-Ib.
512 The Commonwealth may maintain a civil action on a sheriff's bond for official delinquency in criminal cases, yet, unless some damage resulted from a breach of the bond, an action cannot be maintained. Commonwealth vs. Reed, &c.--‒‒‒
When the accused appeared, as they had undertaken to do, notwith- standing the informality and invalidity of the recognizances taken by the sheriff, it was the duty of the court to hold them in custody until they acknowledged unexceptionable recognizances. If the court permitted the accused to go on such defective recognizances until the next term of the court, the sheriff could not be deemed the cause of their non-appearance or escape, and is not, therefore, responsible on his official bond.-Ib.-
A deputy executed bond with sureties to the sheriff, to guarantee his of ficial fidelity, and to save the sheriff harmless from the consequences of the deputy's acts. The sheriff was subjected to liability and dam- ages by suit and judgment against him, on account of the default of the deputy. The statute of limitations did not commence to run against the sheriff's right of action for idemnity against the deputy. and his sureties in the bond, until the judgment was rendered against
Sheriffs-Specific Performance.
the sheriff, nor was the sheriff's claim barred until seven years after the rendition of the judgment against him.-Bottom, &c., vs. Wil- liamson
If the return of a sheriff is ambiguous, it is susceptible of explanation by other evidence.- Chamberlin & Tapp vs. Brewer, &c. -------- 561 If the return of a sheriff is unambiguous, extraneous evidence may be introduced to contradict it, and to show its falsity, in a suit directly against the sheriff and his sureties. (Caldwell vs. Harlan, 3 Mon., 350; Thompson vs. Morris, 2 B. Mon., 35.)—Ib.‒‒‒‒‒‒ 561
"All motions allowed by this chapter must be commenced within two years after the cause of such motion accrues." (Subsec. 2 of sec. 5, art. 18, chap. 36, 1 Stanton, 494.) The two years' bar to motions, as above, cannot be construed as embracing suits against sheriffs and their sureties.—Ib. ‒‒‒‒ .
1. "This instrument of writing is to certify that I have this day sold to J. R. Shivell a certain tract of land, described in a deed which has been duly acknowledged in the Henry county court clerk's office, which deed is now in my possession, and which is to be delivered to said Shivell on the payment of two thousand dollars on the 25th of De- cember, 1863. J. B. JONES."
Shivell died before December 25, 1863, no part of the money hav- ing been paid. Some time thereafter, his personal representatives, &c., offered to pay, and sued to recover the land or five hundred dol- lars, for which Jones had sold it above the price Shivell was to pay. Held-That they were not entitled to recover either the land or the five hundred dollars-Jones vs. Noble, &c.------
To enable either party to compel a specific execution, as a general rule, the contract must be mutually binding on each party. (Boucher vs. Vanbuskirk, Marshall, 345; Allen vs. Roberts, 2 Bibb, 98; New on Contracts, 154.—Ib.
In a conditional sale of land, the payment of the price on a particular day being a precedent condition to the conveyance and surrender of the possession, time was of the essence of the contract, and the land cannot be recovered without the performance of the condition pre- cedent.-Ib. 694
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