Griffin v. Ganaway

COLLIER, C. J. 1. The declaration is not drawn with that technical precision which the plaintiff should always employ in stating his cause of action ; but since the act of 1824, “ to regu [151] late pleadings at common law,” [Clay’s Digest, 334, § 119,] has removed all objections, which are merely formal, to the pleadings in a cause, by declaring that, “no demurrer shall have any other effect than that of a general demurrer,” we think the declaration was very correctly adjudged to be sufficient. It is not alleged that the attachment was ever levied; this can only be inferred, if at all, from the allegation that a venditioni exponas was issued and placed in the sheriff’s hands, commanding him to sell so much of the property of the defendant in that suit, (which he was directed to seize and secure by the attachment,) as would be sufficient to satisfy the judgment and costs. The gravamen of the charge is, that, although the defendant in the attachment had property in his possession of sufficient value to pay the debt sought to be collected, together with costs, yet the defendant in this action would not, according to the mandate of the writ, levy the same on property sufficient for that purpose, as he might and ought to have done: whereby the plaintiff is injured, &c. To have entitled the plaintiff to recover, it was not necessary that he should have proved that a venditioni exponas had been placed in the sheriff’s hands. The proof of this allegation was wholly immaterial. It might have been stricken out without affecting, in any manner, the cause of action ; and was, therefore, properly disregarded by the circuit court. [1 Saund. Plead. & Ev. 113-4, 340.] The averment, that the plaintiff was injimed, and had sustained damage to a greater amount than that sought to be recovered by the attachment, is equivalent to an allegation that his debt is unpaid, when considered in reference to the influence of our healing statute already cited. 2. The plaintiff did not attempt to set out the attachment in haec verba, but merely to describe it by its substance and effect. It is in such case ordinarily sufficient, if the legal identity of the instrument has been adhered to ; and there will be no variance, if the writing proved, and that alleged, correspond in all essential particulars. [Pearsall v. Phelps, 3 Ala. Rep. 525; 2 Phil. Ev. C. & H.’s notes, 520 — 7.] Does the mere difference of one quarter of a cent so materially change the identity of the attachment, when the description, in other respects, is in perfect harmony with the allegation, as not to permit it to be read as evidence to the jury? [Bissell v. Kip, 5 Johns. Rep. 89; Bibbins [152] v. Noxon, 4 Wend. Rep. 207; Webb v. Alexander, 7 id. 281 Thompson v. Jameson, 1 Cranch’s Rep. 282; United States v. Lakeman, 2 Mason’s Rep. 229; United States v. McNeal; 1 Gall. Rep. 387; Rex v. Coppard, 3 C. & Payne’S Rep. 59; Crane v. Digert, 4 Wend. Rep. 675.] Taking into consideration the correspondence between the declaration and proof, as to the date of the attachment, the parties, and the amount of the judgment thereupon, when rendered, &c., we are constrained to regard the discrepancy, as to the amount of the attachment, wholly immaterial. If the amount of the attachment had been omitted entirely, the declaration would have been sufficient, [Jameson v. Ostrander, 1 Cow. Rep. 670]; but whether, being stated as descriptive of the process, if the variance was material it might ■be disregarded, it is not necessary to consider. [3 Starkie’s Ev. 1542; 1 Saund. on Plead, and Ev. 340, et post; 2 Phil. Ev. C. & H.’s notes, 520—7.] 3. The cause of action, for which a recovery is sought, is, the neglect of the defendant, as sheriff, to levy an attachment, that was placed in his hands, at the suit of the plaintiff, on a sufficincy of property to pay the debt. Would the entry read from the trial docket, even if not erased, or in any manner obliterated, tend to sustain the allegation ? We think not. The reasonaable inference from it is, that the defendant in the attachment had “settled” with the plaintiff, or some one else, the demand in suit-. Perhaps, it may be intended that, as the entry was made by the 'sheriff, the money was paid to him, although it does not appear ■that an execution was placed in his hands, until more than oné month thereafter. If the money was received by the defendant, under the authority of process in his hands, it might be recovered upon notice and- motion, under the statute; or, if collected without such authority, he would be liable to an action for money had ■and received. But in neither case would the receipt of the mone'y show neglect in levying the attachment. This view is taken upon the hypothesis, that the obliteration of the entry has no influence on its admissibility as evidence. The charge to the jury ■upon this point, does not relieve the case from the error- in the •admission of the evidence. They are informed, if not expressly, ■at least by necessary implication, that it should be considered by them in determining whether the defendant had not been guilty of neglect, or of the want of due diligence, which is the same thing. [153] "We have seen the evidence did not lead to such a conclusion. For the error, then, in its admission, as well as for the charge thereupon, the judgment of the county court is reversed, and the cause remandad.