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
2. 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_-_.
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
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.
Set-off and Counter-Claim-Sheriffs.
SET-OFF AND COUNTER-CLAIM-Continued.
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.)-Iaddix vs. Wilson .
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.
656
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 hond 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. ---------- 41
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.-1b. 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..
The fee bill for half commission, for levying the fi. fa., 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-
per
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
9. 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.-----
244
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.
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
the same, 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. -
17. A deputy executed bond with sureties to the sheriff, to gaurantee 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.‒‒‒‒‒
"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. ---
"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, 2 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 prece·lent 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.
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