he would be estopped thereafter from claiming the same goods under the same title. We can not, therefore, doubt, that if a suit were now instituted by Houghton against the plaintiffs, founded on their recognition of his title, it would be competent for them to defend against such suit, by showing that the butter was taken from their possession by process of law against Cutter, and that Houghton has instituted a suit against the officer serving the process, and that his title has been found defective, and the officer serving such process justified in taking the property. The liability of the plaintiffs to Houghton for the butter did not protect it against the creditors of Cutter, if Houghton's title has been found and adjudged to be invalid, as against such creditors. The rejoinder, therefore, fully answered the replication.

The judgment of the county court is therefore affirmed.

THE PRINCIPAL CASE IS CITED in Leach v. Francis et al., 41 Vt. 674, to the point that to entitle a deputy to the immunity of a public officer in the execution of a process, he must show his authority and make known his business, if required to do so, by the party who is called upon to obey.

BREAKING OPEN DOORS TO EXECUTE WRIT: See note to Keith v. Johnson, 25 Am. Dec. 167-171, where the whole subject is discussed.

DISPOSSESSION OF WAREHOUSEMAN OF GOODS BY LEGAL PROCESS: See note to Schmidt v. Blood, 24 Am. Dec. 156.

HOLTON V. BROWN.

[18 VERMONT, 224.]

TENDER WITH CONDITION ANNEXED IS INVALID.

TENDER WITH CONDITION, IS NO BAR TO EJECTMENT BROUGHT ON MORTGAGE. Plaintiff held a mortgage to secure a note, but had lost the note. Defendant, the mortgagor, tendered payment, but demanded the note as a condition, and refused to take a receipt and discharge of mortgage, which plaintiff offered. Held: Such tender was no bar to an action of ejectment brought on the mortgage.

Plea, general issue.

De

EJECTMENT, founded on mortgage. fendant had given a note to plaintiff, and secured the same by a mortgage. Plaintiff left the note with his attorney, informed defendant, and the money was tendered to him. Plaintiff proved by Seymour the offer to give a receipt and discharge of the mortgage. Defendant objected to the witness on the ground of interest. The other facts appear in the opinion. Judgment for plaintiff, and defendant appealed.

H. Seymour, for the plaintiff.

E. D. Barber and E. J. Phelps, for the defendant.

By Court, BENNETT, J. The simple question in this case is, whether the plaintiff's right of action is barred by reason of the tender, which is insisted upon in the defense. When the money was tendered, the note secured by the mortgage was demanded, and the defendant refused to part with the money, unless the note was surrendered. The note was at that time mislaid, but Seymour proposed to receive the money and discharge the note and mortgage; but the defendant declined to leave the money on such terms. This note was payable to Jesse Stratton or order, and has never been negotiated by the payee. The plaintiff might have recovered in an action at law upon the note, provided it had been shown to have been lost. The right of the holder, in such case, at law, is fully recognized in the case of Lazell v. Lazell, 12 Vt. 449 [36 Am. Dec. 352]. If the plaintiff could maintain an action on the note, at law, upon proof of its loss, without producing it, it would seem that the defendant, to have such action, must have made an absolute and an unconditional tender. A tender, with a condition annexed to the acceptance, is invalid. The party has not a right to demand a receipt, or a surrender of the security, or obligation, upon which the money is tendered: Laing v. Meader, 1 Carr. & P. 257; Evans v. Judkins, 4 Camp. 156; Cole v. Blake, Peake, 180; Loring v. Cooke, 3 Pick. 51. The case of Hansard v. Robinson, 14 Eng. Com. L. 50, cited by the counsel for the defendant, is a case in which the lost paper had been negotiated, and it was correctly held, that in such case there could be no remedy at law. The remedy must be in equity, where it is within the province of the court to order an indemnity to be furnished against such outstanding paper, before the court will grant relief. In the case cited from Campbell's reports, the paper had also been negotiated.

If the tender would not have barred an action on the note, much less would it bar an action of ejectment on the mortgage deed. The fact that Seymour offered to give a discharge of the note and of the mortgage is of no particular importance, except as it evinced a willingness on his part to make the defendant safe against any future attempt to enforce a second payment of the note. We can see no ground for claiming that Seymour was an incompetent witness.

Judgment of the county court affirmed.

THE PRINCIPAL CASE IS CITED in Preston v. Grant, 34 Vt. 205, to the point that acceptance of money does not discharge a claim unless accepted with the understanding that it is to be in full.

TENDER TO BE VALID MUST BE UNCONDITIONAL, and the money or other thing to be tendered must be actually produced, unless the tender be dispensed with by the creditor: Brown v. Gilmore, 22 Am. Dec. 223; and he who makes a tender must be ready to pay, and must actually offer to pay: Sargent v. Graham, 22 Id. 469; North v. Mallett, 2 Id. 622.

ADM'R OF WHITNEY v. TOWN OF CLARENDON.

[18 VERMONT, 252.]

IN AN ACTION ON THE CASE ANY EVIDENCE may be given under the general issue which destroys the right of action."

PRIOR RECOVERY FOR THE SAME CAUSE OF ACTION may be given in evi dence under the general issue, and is a bar to a second action.

FOR DAMAGES ACCRUING AFTER A JUDGMENT IN A FORMER ACTION, and arising out of the same cause, an action will not lie.

TRESPASS on the case brought by a father for damages in consequence of injuries to his minor son, caused by the breaking down of a bridge, which the defendant failed to keep in repair. Plea, the general issue. That the bridge was out of repair; that it was the duty of defendant to keep it in repair, and that plaintiff's son was injured by reason of their failure to do so, were admitted. Plaintiff then proved damages since February 28, 1840. Defendants gave in evidence a judgment in a suit for similar damages between the same parties, sustained prior to the above date, and requested the court to instruct the jury, that the judgment recovered in the former case was a bar to this action, which the court refused to do. Verdict for plaintiff. Exceptions by defendants.

S. H. and E. F. Hodges, for the defendants.

Foot, Everts, Thrall, and Pond, for the plaintiff.

By Court, BENNETT, J. We think that there was no objection to the defendants availing themselves, under the general issue, of the matter offered in defense. In an action on the case, anything may be given in evidence under the general issue, which destroys the right of action. If damages are sought to be recovered for beating the plaintiff's horse, by means of which he lost his service, the defendant may well show, under the general issue, that the beating was lawful: Slater v. Swann, Str. 872; Bull. N. P. 78. The question then arises, does the former recovery destroy the plaintiff's right of action in this case? Or in

other words, can there be a succession of actions to recover damages resulting from one and the same injury? The injury inflicted upon the person of the son of the plaintiff by the fall of the bridge, by reason of its insufficiency, is one and entire, though there may be a continuation of the damages resulting from that injury. It is contended on the part of the plaintiff, that in the action by the parent, for the loss of service, the gist of the action is the loss of service, and that the parent may have successive actions from time to time, to recover the resulting damages, as it shall suit his pleasure. There should be an end of litigation; and I should regret it, if the law was so settled, that every fresh damage would give a new cause of action.

In Hodsoll v. Stallerbrass, 39 Eng. Com. L. 94, it was held, that both the injury and damage must concur, to give a right of action, and that the damages were not the sole cause of action. That was an action by the master for the loss of the service of his apprentice, occasioned by the bite of a dog; and it was contended, that the action was not grounded upon the injury, but upon the resulting damage. But the court directed prospective damages to be assessed by the jury on the ground, that a second action could not be brought to recover damages resulting from the same injury. That case was fully considered and is decisive of the one at bar. Upon the authority of that case the plaintiff in this action might have recovered prospective damages in his first action, and should not have been confined to such damages, as had in fact accrued at the time, when the suit was brought. If the plaintiff, by his own declaration, confined himself to such damages as had resulted from the injury within a given time after it happened, it was the pleader's own fault; but, as the time is only limited under a vide licit, it may be questionable, whether such would have been its effect. Sergeant Williams, in his note to the case of Hambleton v. Veere, 2 Saund. 171, lays down the proposition, that in trespass, and in tort, new actions may be brought as often as new injuries and wrongs are repeated, and consequently prospective damages should not be given in a case, in which there is a continuation of the injury. There is no intimation, that every fresh damage gives a new action. Though it should be admitted, that, in an action by the master, the loss of service is the gist of the action; yet it is a non sequitur, that damage alone can give the action. In trover the conversion is the gist of the action; yet there is no right of action, unless the conversion involves an injury to the plaintiff's right of property.

The case of Hambleton v. Veere, 2 Saund. 169, is relied upon to sustain the decision of the county court. We think that case is distinguishable from the one now before us. That was an action for enticing the plaintiff's servant to depart from his service; and the plaintiff claimed damages for the loss of service for the whole of the residue of the term of the apprenticeship. The term had not expired, and, upon a motion in arrest, it was held to be error, upon that declaration, to assess damages beyond the time of the exhibition of the bill. It is to be remarked, that it was alleged in the declaration, that the person enticed away had been retained in the service of the plaintiff, as his apprentice, for the term of nine years, and that having served the plaintiff five years, he was then enticed away by the defendant, he (the defendant) well knowing the premises; whereby the plaintiff lost the service of his apprentice for all the residue of the said term to come. It appears from the declaration, that the injury was not complete when the action was brought. The defendant enticed the servant away, knowing he was the apprentice of the plaintiff for the term of nine years, and consequently every detention of the servant with such knowledge, was a fresh injury; and when new damage had accrued, a second action might well be sustained, as in the case of a continuation of a nuisance, or of false imprisonment. The case of Ward v. Rich, 1 Vent. 103, rests upon the same principle. That was an action for enticing away the plaintiff's wife and keeping her from the plaintiff, until, as was alleged, a certain day, which was some time after the suit was commenced. After verdict for the plaintiff judgment was arrested, upon the ground, that it must be intended, that the jury gave damages for the entire term specified in the declaration. In this case the subsequent detention of the wife, after action brought, was a new injury. In Brasfield v. Lee, 1 Ld. Raym. 329, the continuation of the false imprisonment, after action brought, was a fresh injury. The overflowing of the plaintiff's lands is a continuation of the injury, and upon sound principles there may be, in such cases, successive actions.

It was admitted by the counsel in Hodsoll v. Stallerbrass, 39 Eng. Com. L. 94, that, if the action had been brought by the master for an injury to his person, the court might have given prospective damages, but they urged, that, when the action was case for loss of service, a different rule should obtain. The court, however, repudiate any distinction in the two cases. It is true, that in the argument of that case, a case under the name