Davis v. Henry
Mississippi Supreme Court
Davis v. Henry, 63 Miss. 110 (Miss. 1885)
Arnold
Davis v. Henry
Opinion of the Court
delivered the opinion of the court.'
The amended plea of tender filed by Davis should have been traversed. If the facts averred in .it were true, the, attachment was wrongfully sued out, and appellee and the sureties on his bond were liable not only for cost, but also for damages. A distress for rent after tender of the amount due is unlawful, unless there has been a subsequent demand and refusal. Taylor on Landlord and Tenant, §§ 566, 573; Hunter v. Le Conte, 6 Cow. 728; Smithy. Goodwin, 4 B. & Ad. 413.
Reversed.
Reference
- Full Case Name
- S. C. Davis v. J. P. Henry
- Status
- Published
- Syllabus
- Distress for Bent. Plea of tender. Failure to traverse. Judgment. If in an action of attachment for rent tlie defendant file a plea averring tender of the amount due before the institution of the suit, and tender such amount in court, it is error for the court to render judgment against the defendant for the amount so tendered if the plaintiff accepts the tender and fails to traverse the defendant’s plea. And in such case the plaintiff and the sureties on his bond are liable to the defendant for costs and damages.