fendants having refused to obey a mandamus to collect the amount of a judgment by adding it to the tax roll, the court allowed the plaintiff his counsel fees and costs.1 class of decisions in which sheriffs have been held liable for the entire judgment for failing to perform their duty when an execution has been placed in their hands. The decisions on this subject are not harmonious; for while it has been generally held that on a failure to arrest the defendant on a capias, or levy an execution on his property, or to allow him to escape when held a prisoner, the amount of the debt is the presumptive measure of damages, it has been held in many courts that this may be rebutted, or the damages reduced by showing that the prisoner has been re-arrested, or that there is sufficient property subject to levy to satisfy the debt, or other matter showing that the plaintiff has not sustained damages to the amount of the judgment. This whole subject is fully discussed in Sedg. on Damages, 506-525. Richardson v. Spencer, 6 Ohio, 13. But without going into this disputed question we are of opinion that those cases do not furnish the rule for the class to which this belongs. "The sheriff, under the laws of England, was an officer of great dignity and honor. He was also the custodian of the jail in which all prisoners, whether for crime or for debt, were kept. He had authority in all cases, when it was necessary, to call out the whole power of the country, to assist him in the performance of his duty. The principle of the sheriff's liability, here asserted, originated undoubtedly in cases of suit for an escape. Imprisonment of the debtor was then the chief, if not the only, mode of enforcing satisfaction of a judgment for money. It was a very simple, a very speedy, and a very effectual mode. The debtor being arrested on a capias, which was his first notice of the action, was held a prisoner, unless he could give bail, until the action was tried. If he gave hail, and judgment went against him, his bail must pay the debt, or he could be re-arrested on a capias ad satisfaciendum; and, if he had given no bail, he was holden under this second writ until the money was paid. To permit him to escape was in effect to lose the debt; for his body had been taken in satisfaction of the judgment. Inasmuch as the object of keeping the defendant in prison was to compel the payment of the debt, through his desire to be released. the plaintiff was entitled to have him in custody every hour until the debt was paid. It is also to be considered that, for every day's service in keeping the prisoner, the sheriff was entitled to compensation by law at the hands of the creditor. Williams v. Mostyn, 4 M. & W. 145; Williams v. Griffith, 3 Exch. 584; Wylie v. Birch, 4 Q. B. 566; Clifton v. Hooper, 6 id. 468. With the means at the hand of the sheriff for safe-keeping and re-arrest. with the escape of the debtor almost equivalent to a loss of the debt, and with compensation paid him by plaintiff for his service, it is not surprising that, when he negligently or intentionally permitted an escape, he should be held liable for the whole debt. How different the duties of the class of officers to which defend 1 Newark Savings Inst. v. Panhort, 7 Biss. 99. See Branch v. Davis, 29 Fed. Rep. 888. [252] § 162. Plaintiff's consent. The previous consent of the plaintiff to the act which he complains of, though not given in a form to bar him or support a plea of justification, may yet be proved in mitigation of damages. Thus in tres ants belong, and the circumstances under which their duties are performed! There is no profit in the office itself. It is undertaken mainly from a sense of public duty; and, if there be any compensation at all, it is altogether disproportionate to the responsibility and trouble assumed. They are in no sense the agents of creditors, and receive no compensation from the holders of judgments or other claims against the town, for the collection and payment of their debts. There are no prisons under their control, no prisoners committed to their custody, no posse comitatus to be brought to their aid; but without reward and without special process of a court to back them, they are expected to levy taxes on the reluctant community at whose hands they hold office. To hold these humble but necessary public duties can only be undertaken at the hazard of personal liability for every judgment which they fail to levy and collect, whether through mistake, ignorance, inadvertence, or accident, as a sheriff is for an escape, without any proof that the judgment creditor has lost his debt, or that its value is in any manner impaired, is a doctrine too harsh to be enforced in any court where imprisonment for debt has been abolished. which, as a suggestion, Lord Mans. field said that 'where an action will lie for complete satisfaction (as in that case), equivalent to specific relief, and the right of the party applying is not clear, the court will not interpose the extraordinary remedy of a mandamus.' He then shows that the right of the party in that case to have the transfer made is not clear. As this was not an action against the officers of the bank for damages, the remark that there was other relief is only incidental, and the point as to the measure of damages was not in issue. A note to the principal case shows that an action of assumpsit was afterwards brought and compromised before final judgment. But on the whole case there is no discussion of the measure of damages and that question remained undecided. The case of Clark v. Miller, 54 N. Y. 528, decided very recently in the commission of appeals, appears to be more in point. It was an action against the supervisor of the town of Southport, Chemung county, for refusing to present to the board of supervisors of the county the plaintiff's claim for damages as re-assessed for laying out a road through his land. The court without much discussion of the principle holds the defendant liable for the full amount of "The case of The King on the the re-assessment, on the authority Prosecution of Parbury v. The Bank of the Commercial Bank of Buffalo of England, Doug. 524, is cited as v. Kortright, 22 Wend. 348. That sustaining the plaintiff in error. It case was decided in the court of was an application for a mandamus errors in 1839. It was an action for to compel the governor and company refusing to make a transfer of stock of the Bank of England to transfer to the bank. The chancellor (Walstock of the bank. The writ was worth) was of opinion that the extent denied on several grounds; among of the damages was the depreciation pass for an alleged injury to the plaintiff's wall by inserting joists in it, evidence that the wall was so used by the defendant in the erection of an adjoining building under an express parol agreement with the plaintiff is admissible under the [253] general issue in mitigation.1 So it may be proved that the injury in question was inflicted in a fight by mutual consent.2 § 163. Injuries to character and feelings. Any exceptional conduct or character of the plaintiff which impairs his title to compensation or diminishes the injury in question is provable in mitigation. In those actions where the wrong complained of involves injury to character the defendant may show, in order to reduce damages, the general bad character of the plaintiff. The weight of New York authority favors the proposition that in an action by a female for an indecent assault, the injury to her feelings being an element of damages, specific acts of lewdness with others than the defendant may be shown in mitigation without being specially pleaded.* Evidence that the plaintiff's marriage with his reputed [254] wife was void is admissible in an action for seduction of his reputed daughter to rebut the presumption of actual service by showing that the plaintiff was not legally entitled thereto and in mitigation of damages. In an action for criminal conversation it may be shown that the plaintiff was wanting in affec of the stock and not its full value; and of this opinion were four sena tors. "In the case of The People v. The Supervisors of Richmond, 28 N. Y. 112, also before the court in 20 id. 252, the relator had sued out a writ of mandamus requiring the supervisors to audit his claim for damages assessed for land taken as a highway. The supervisors made a return to the writ, which proving false, the supreme court rendered a judgment against them personally for the claim of $200 and for $84 damages for the delay. The court of appeals said that as the return of the supervisors was false, and the relator had been kept out of the money to which he was entitled from the town, the super visors may be properly made liable in damages to the extent of the interest upon $200,- to wit, $84, and they affirm the judgment as to the $84 and reverse it as to the $200, for which they order a peremptory writ of mandamus. This answer accords precisely with our views, and we think it of equal authority with Clark v. Miller." 1 Hamilton v. Windolf, 36 Md. 301. 2 Adams v. Waggoner, 33 Ind. 531. See § 151, ante. 3 Fitzgibbon v. Brown, 43 Me. 169. See ante, § 152. 4 Guilerette v. McKinley, 27 Hun, 320, reviewing the cases in New York. 517. Howland v. Howland, 114 Mass. 1 tion for his wife to support the inference that his loss was trifling; or that there was but slight intercourse between them; and in an action for breach of promise of marriage that the plaintiff was utterly unfit to appreciate the person to whom he engaged himself. Declarations by the plaintiff pending the action that she would not marry the defendant. except for his money have been admitted. The fact of a female plaintiff having had an illegitimate child, though known to the defendant at the time of the promise, may be proved;" and her intercourse with another man before and after the promise. In actions for seduction proof of plaintiff's careless indifference to defendant's opportunities for criminal intercourse with her daughter may be shown in mitigation, but actual connivance by the plaintiff would be a bar. 6 § 164. Reduction of loss or benefit. Whatever diminishes the loss of the injured party, or where the recovery is influenced by the amount of benefit derived from the act complained of by the defendant, whatever decreases the value of that benefit may be proved in mitigation, where the matter diminishing the loss in the former case, or impairing the benefit in the other, is part of the transaction. Thus in an action against a contractor for failing to fulfill his contract he may show that the agreed price has not been paid. And where A. took wrongful possession of premises on the 2d of June, and [255] a sum of money became due for ground rent on the 24th for the month ending on that day, which A. paid, it was held in an action for mesne profits that he was entitled to deduct the money so paid from the damages. In that case the payment of the ground rent diminished the value of the occupa. tion to the defendant; and having paid what the plaintiff must otherwise have paid, his injury, for which mesne profits were compensation, was, to the amount paid, mitigated.10 So a tenant has a right to deduct from rent all expenses or taxes 1 Bromley v. Wallace, 4 Esp. 237. 2 Calcraft v. Harborough, 4 C. & P. 499. 3 Leeds v. Cook, 4 Esp. 256. 4 Miller v. Rosier, 31 Mich. 475. Contra, Miller v. Hayes, 34 Iowa, 496. 5 Denslow v. Van Horn, 16 Iowa, 476. 6 Burnett v. Simpkins, 24 Ill. 264. 7 Zerfing v. Mourer, 2 Greene (Ia.), 520; Parker v. Elliott, 6 Munf. 587. 8 Bunnell v. Greathead, 49 Barb. 106; Smith v. Masten, 15 Wend. 270; Sherwood v. Titman, 55 Pa. St. 77. 9 Ready v. Tuskaloosa, 6 Ala. 327. 10 Doe v. Hare, 2 Cr. & M. 145. which he has been compelled to pay for the lessor.1 If a mortgagee who has brought an action for damage done to the mortgaged premises by a removal of fixtures has sold the premises intermediate the injury and the action for more than enough to pay his debt and all prior incumbrances, this fact may be proven in mitigation of damages.2 The immediate landlord is bound to protect his tenant from all paramount claims; and when, therefore, the tenant is compelled, in order to protect himself in the enjoyment of the land in respect to which the rent is payable, to make payments which ought, as between himself and his landlord, to have been made by the latter, he is considered as having been authorized by the landlord so to apply his rent due or accruing due. Of this nature are not only payments of ground rent to the superior landlord, but interest due upon a mortgage prior to the lease; an annuity charged upon the land; and rates and taxes." But where the payment of the ground rent or other like charge gives no right of action against the party suing for the rent, this right of deduction does not exist." 4 § 165. Pleading in mitigation. It has sometimes been held as a general rule that matters which would have gone in bar of the action cannot be given in evidence to reduce damages unless pleaded. Lord Abinger, C. B., said: "It is a principle as old as my recollection of Westminster Hall that matter of justification cannot be given in evidence in an action in order to mitigate damages." The case was an action for wrongfully discharging the plaintiff from the defendant's service. The defendant pleaded only payment of money into court. It was contended in his favor that he should be allowed to show in mitigation that the discharge was for misconduct, as under this issue there was merely an inquiry of damages; that the same evidence was admissible as [256] upon a writ of inquiry after a judgment by default. It was held properly rejected. Alderson, B., said: "The question is 1 Sapsford v. Fletcher, 4 T. R. 511; Taylor v. Zamira, 6 Taunt. 524; Carter v. Carter, 5 Bing. 406. 2 King v. Bangs, 120 Mass. 514. 4 Johnson v. Jones, 9 A. & E. 809. 5 Taylor v. Zamira, 6 Taunt. 524. 6 Baker v. Davis, 3 Camp. 474; Andrew v. Hancock, 1 B. & B. 37. 7 Graham v. Allsopp, supra. 8 Spock v. Phillips, 5 M. & W. 279. |