Strong v. Patterson

| Cal. | Jul 1, 1856

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

This was an action in the Court below against the defendant as sheriff, for refusing to levy an attachment, upon certain personal property.

The complaint is verified, as well as the answer. On the trial of the cause, the defendant offered evidence to prove a trial of the right of property by a sheriff’s jury, and a verdict for the claimant. By the provisions of the statute in such cases, it would be necessary for the plaintiff to tender the Sheriff a sufficient bond of indemnity, before he could require him to seize the property, and by the admission of this testimony, the onus was thrown upon the plaintiff of establishing the fact that such bond had been tendered.

This defence should have heen set up in the answer as new matter; the issue is not made or tendered by the pleadings, and the plaintiff might very well complain that he was taken by surprise.

While we hold that a general exception to the admission of testimony is insufficient, because the party offering it is entitled to know the ground of such objection, so that he may supply other evidence, or obviate it, we think an objection that the testimony is irrelevant is sufficiently explicit, as it can mean but one thing, viz.: that the testimony does not fit the case, or is not proper under the issues framed.

It is said, admitting this to be error, the plaintiff is not prejudiced, as the whole transaction was before the jury, particularly the bona fides of the sale by Hardenbergh & Henarie to Bidleman, and they have found for the defendant. It does not appear satisfactorily to us that this verdict was based upon the whole transaction, and establishes the truth of the matters set up in the defence. It is general, and mgy have been rendered upon the belief that no sufficient indemnity bond had been proffered, a fact which the plaintiffs were not prepared to prove.

This could hardly be said to be a case of damnum absque injuriar without we were fully satisfied of the reasons which influenced the verdict.

Judgment reversed, and cause remanded.