Griffin v. Ganaway. unless there be some satisfactory excuse shown for the omission is, in law, no return. Let the judgment be affirmed. GRIFFIN v. GANAWAY. 1. In an action against a sheriff for failing to levy an attachment upon a sufficiency of property to satisfy the judgment rendered thereon, the measure of damages is the injury sustained by the sheriff's failure to make the proper levy. The value of the property levied on in such case, should be equal to the amount of the debt sought to be recovered, making a proper allowance for depreciation in price, the effect of a forced sale, as also costs and other incidental charges: and evidence of the sum at which the property was sold under the execution, should perhaps be considered more satisfactory as to its value than the opinions of witnesses. Writ of Error to the County Court of Talladega. THIS was an action on the case, at the suit of the defendant in error, to recover damages of the plaintiff, for the failure to levy an attachment placed in his hands, as sheriff, on the 27th of October, 1841, in favor of the former, against the estate of Shelton Kennerly, on a sufficiency of property to satisfy the same. [See this case when previously here, reported in 6 Ala. Rep. 148.] The cause was tried on the general issue, and other pleas, a verdict was returned in favor of the plaintiff for $92 30, and judgment rendered accordingly. On the trial, the defendant excepted to the ruling of the Court. It was shown by the attachment and by other proof, that it was levied on a horse, as the property of the defendant in attachment, which was proved by one witness to be worth seventy-five dollars, at the time of the levy, and by another to be worth one hundred dollars. The attachment was for $86 07 1-2, issued about three months previous to the trial term of the cause to which it was ancillary, and at which the judgment was obtained. Soon Griffin v. Ganaway. after the rendition of the judgment, a venditioni exponas issued, under which the horse that had been levied on was sold for the sum of forty dollars; of that sum the plaintiff received but ten dollars, the residue being appropriated to the payment of the costs. Upon these facts, the Court charged the jury, that in estimating the value of the horse levied on, they could look to the price at which he was sold, as well as the other evidence; and that the evidence of the witnesses as to the value was not conclusive. The defendant's counsel then prayed the Court to charge the jury -1. If the defendant was guilty of the neglect charged in the declaration, the measure of the damages was not the difference between the ten dollars which the plaintiff received from the sale of the horse, and the plaintiff's demand sought to be recovered. 2. That the defendant could not be made liable for more than the difference between the value of the horse at the time of the levy, and the amount for which he was required to attach Kennerly's estate. These several charges were refused. S. F. RICE, for the plaintiffin error, insisted that the first charge was erroneous, because the inquiry was not as to the value of the horse some three or four months after the levy, (and perhaps longer,) when he was sold; and because it makes the sheriff an insurer, that the value of the horse would not depreciate between the levy and sale. The charges refused were obviously proper, and should have been given. L. E. PARSONS, for the defendant. The witness who testified to the value of the horse did not speak in reference to a public sale for cash, although the law requires the sheriff thus to dispose of property levied on by him. It was proper for the jury to look at all the facts in coming to a conclusion on this point. The first charge prayed is a mere negative, without furnishing any rule for ascertaining the damages, and should not have been given. The second was properly refused, because there was no proof of the value of the horse at a public sale forcash. The witnesses doubtless had reference to sales made upon negotiations in the ordinary way, between seller and purchaser. 1 COLLIER, C. J.-The true measure of damages in this case Griffin v. Ganaway. is, the injury which the plaintiff sustained by the neglect of the defendant to levy the attachment on a sufficiency of property to satisfy the judgment consequent thereupon. It is fairly inferrible from the evidence, that the horse levied on would not, at a forced sale, have sold for a sum equal to that for which the action was brought, to say nothing of the expense of keeping such property before it is replevied, and other costs. If as much of the estate of the defendant in attachment, making a proper allowance for depreciation in price, costs and incidental charges, was levied on, as was necessary to satisfy these, together with the debt, then perhaps, the sheriff would be discharged, if from causes beyond his control, it should be lost, or become valueless. The evidence of the defendant's witnesses as to the value of the horse, was inconclusive. These witnesses doubtless spoke in reference to the market price, as ascertained in ordinary contracts between man and man. Now it is known to all who have any knowledge upon the subject, that sales of property for which there is not a great demand, is less likely to command a fair price at a forced than a voluntary sale. We should consider the price at which the horse sold under the venditioni exponas, as furnishing a more certain standard of value, than the testimony of witnesses; especially as there was no evidence tending to show any thing like depreciation from bad treatment or otherwise, between the levy and sale. But, be this as it may, the charge of the Court upon the evidence, assuming the defendant's neglect of official duty, could not possibly prejudice him; for we have already seen, that if neglect was established, the plaintiff is entitled to be compensated to the extent of the injury he has suffered. From what has been said, it clearly results, that neither of the charges prayed should have been given. They assume that the defendant could not be made liable for more, than the difference between the value of the horse at the time of the levy, and the amount for which the attachment issued. This, it has been shown, is not the law. There is then no error in the points presented, and the judgment is therefore affirmed. 8 628 108 116 Riggs v. Andrews & Co. RIGGS v. ANDREWS & CO. 1. In a suit by an indorsee against his immediate indorser, on a note pur- 2. It is unnecessary to fill up a blank indorsement, even when the descrip- Writ of Error to the County Court of Dallas. ASSUMPSIT by Andrews & Co. against Riggs, as the indorser of a promissory note, which, in the indorsement on the writ, is thus set out: "Mobile, 28th April, 1841. Three years after date, we promise to pay to Daniel M. Riggs, Esq. or order, six hundred and eighty-two 16-100 dollars, value received, negotiable and payable at the Bank of Mobile. "GAYLE & BOWER, in liquidation, By WM. BOWER." The declaration describes the note as made by Gayle & Bower. The defendant appeared, and craved oyer of the writ and indorsement upon it, which being given, he demurred. The Court overruled the demurrer. He then pleaded several pleas in bar of the action. At the trial, upon the general as well as other issues, the plaintiff gave in evidence the note which is above récited, on which appeared the blank indorsement of the defendant. To the admissibility of this note as evidence, the defendant objected, on the grounds, Ist. That it was variant from the note described in the declaration, being the note of Wm. Bower only, and not the note of Gayle & Bower. 2. That the indorsement was variant from that set out in the declaration, which is there stated as the indorsement of the Riggs v. Andrews & Co. defendant to the plaintiffs, and the note in evidence is indorsed in blank only. The objection was overruled, and the note admitted as evidence to the jury. In the discussion of the last mentioned objection, the counsel for the plaintiffs contended that the indorsement in blank was alone sufficient, and also that they had the right then to fill up the indorsement, so as to direct the payment to be made to the plaintiffs, but did not do so, or express their determination or promise, to do it, until after the note and indorsement had been admitted as evidence; but during the trial they wrote above the name of Riggs the following: "pay the within note to the order of E. L. Andrews & Co." The plaintiffs also read in evidence a notice of the protest of the said note, purporting to be from a notary public of Mobile, stating that the note had been duly protested by him on the 1st day of May, 1844, and that on the same day he had put notice thereof in the post office, addressed to the defendant at Selma, and also to Cahawba. They also introduced witnesses, who stated that the defendant had resided with his family in the city of Mobile, several years prior to the month of May, 1844, and during that time had exercised the office of cashier of the Planters' and Merchants' Bank of Mobile; also, that during the latter part of his residence there, he had acted as a commissioner of said Bank for winding up its concerns; that some time prior to the said month of May, 1844, the defendant's family removed to a place about six miles from the town of Selma, and near the same distance from the town of Cahawba, and that his family had resided at the same place since their removal-the settlement having been purchased by the defendant some years previous to their removal; that the defendant at the same time came up the river with his family, saying, they would remain at their settlement in Dallas county, but that he was to return immediately to Mobile to attend to his business there; that afterwards, and before the month of May, 1844, he was several times seen in Dallas county, and that he spent a portion of his time in Mobile; what portion the witness could not say. There was no other evidence than above stated, that the defendant had changed his place of business, or that his said official duties or employments in Mobile had terminated, or ceased, prior to the month of June, 1844, or that he was absent from Mobile on or about the 1st May of that year. It was also in evidence that since the last mentioned date, |