B. F. Ashcroft seeks in this suit to recover damages of James A. Weaver, sheriff of Hopkins county, for an alleged trespass in forcibly taking possession of a stock of goods, alleged by Ashcroft to be his property, and of the store-house in which said goods were kept for sale. The sheriff was acting under an attachment against the property of Isham Bussell, who was, up to July 21,1871, in partnership with Ashcroft, but who on that day had executed to Ashcroft a transfer or bill of sale of his interest in the stock of goods. Weaver alleged that this sale br transfer was fraudulent.
Previous to January 18,1871, Bussell was doing business on his own account in this store-house and in part with the same goods. On that day he sold a half interest -in the business to Ashcroft. An inventory of the stock of goods then on hand at invoice prices amounted to $3,544, and the terms on which Ashcroft became a partner were that he was to pay Bussell $1,000 in gold when called on, and to pay interest on the balancé of one-half of $3,544 gold. The $1,000 gold was, some month ortwo afterwards, paid to Bussell, and appropriated in Ashcroft’s presence to pay off' an incumbrance on Bussell’s homestead. After Ashcroft and Bussell became partners the firm purchased over $4,000 worth of goods, all *437on credit, and carried on business about six months, until July 21,1871, when, as before stated, Russell sold to Ashcroft his interest in the stock of goods.
By the terms of this sale Ashcroft took the goods and assumed to pay the firm debts; Russell took the books and accounts due the firm, amounting to $1,823, and some items of firm property. It appears that in making this trade the parties assumed that the firm had neither made nor lost, and that Russell was to receive out of the firm enough, with the $1,000 gold before paid by Ashcroft, to pay him §3,544 currency, the invoice price of the goods which he brought into the partnership. This sale or dissolution was promptly announced in the county paper, and was followed soon by an attachment, sued out by E. Marx, an individual creditor of Russell, for goods sold him whilst merchandizing alone. Russell, it seems, was in debt between $5,000 and §6,000 at the time he and Ashcroft became partners, and during the existence of the firm his creditors were pressing him for payment. Ashcroft claimed and testified that he was ignorant of Russell’s embarrassed condition, and there is other testimony that up to July 21,1871, both he and Ashcroft were regarded as solvent and trustworthy. On the other hand, there was evidence of repeated applications to Russell by the agents of his individual mercantile creditors for payment of their claims, made at the store, and whilst Ashcroft, was there; and it appears from the testimony of Russell that some of these creditors proposed to him to take 50 cents on the dollar on their claims. On Saturday, July 29, 1871, Weaver, disregarding the protest of Ashcroft, levied the attachment against Russell, in favor of E. Marx, for $1,572.92, on the goods in Ashcroft’s possession. He took possession of the store-house and stock of goods, and retained it whilst making an invoice of the goods attached, amounting to $1,595.88.
This invoice was not completed and copied until the following Wednesday, when Weaver tendered a copy thereof to plaintiff Ashcroft, tendering him also the key of the store*438house and possession of the remaining goods. Ashcroft, who says he had understood Weaver to levy on his entire stock, and who had already, on August 1, instituted this suit, refused to receive the key or the remainder of the goods unless Weaver would also give him an invoice of what was left. This Weaver refused to do, and the goods, except $800 worth levied on some weeks later by Weaver’s directions, appear to have remained in the store-house, and the key in Weaver’s possession, until, in 1873, the house, which belonged to Russell', and all that was then in it, was delivered by Weaver to Russell. What goods were then in the house, and what ultimately became of them or of the stock not attached, the record fails to show.
In defendant’s answer it was alleged that the sale to Ashcroft was fraudulent, and that, the goods being subject to levy by" virtue of the attachment, he levied on goods to the amount of $1,595.88, kept possession of the house and goods no longer than; was necessary to separate the amount of goods levied upon, and then tendered the key and remaining goods to plaintiff, who refused, and had continued to refuse, to receive them.
After' one mistrial and one new trial granted to defendant, the case was tried in January, 1877, resulting in a verdict for plaintiff for $10,660.95.
On the trial the primary issue xvas as to the validity of the transfer from Russell to Ashcroft. If that transfer was not fraudulent, but was valid, the goods were Ashcroft’s property, the sheriff in seizing them was guilty of a trespass, and the only other questions were as to the extent of that trespass and as to the measure of damages.
Clearly, it was important to the defendant that this primary or leading issue be submitted to the jury, with correct instructions as to the law bearing thereon. If the charge of the court as given embodies any material error of law which may have misled the jury on this issue to defendant’s"prejudice, he is entitled to another trial. Our opinion is that the *439charge contains such error. We copy those paragraphs of the charge only on. which we propose to comment:
“11. A debtor in failing circumstances may prefer one creditor to another, and where partners owe individual debts and partnership debts, the partnership creditors have, in law and equity, a right to have their partnership debts first paid out of the partnership effects. And if the jury believe from the evidence that prior to the 29th of July, 1871, Isham Russell and B. F. Ashcroft were partners, doing business as merchants, and that the firm was at that time indebted to others, and that Russell was also indebted to E. Marx and others on his individual account, and that Russell sold to Ashcroft his interest in the partnership effects for the purpose o’f paying the debts of the firm of Russell & Ashcroft, and not for the purpose of defrauding the individual creditors of Russell, the jury should find for the plaintiff.
“12. If the object of the sale of the partnership goods of Russell & Ashcroft was in part to provide for the firm creditors, and the sale was made in good faith for that purpose, and not for the purpose of defrauding the individual creditors of Russell, the plaintiff is entitled to recover, and the jury should find accordingly. If the jury believe from the evidence that the goods were seized, while in the possession of the plaintiff, by virtue of a writ of attachment against Russell, they should find for the plaintiff, unless it satisfactorily appears from the evidence that the goods seized were the property of Russell, or that he had an interest in them as a partner' of Ashcroft.
“13. If the jury believe from the evidence that the goods seized upon were the property of the plaintiff, and defendant at the time of such seizure was the sheriff of Hopkins county, and that in the discharge of his official duties as such sheriff he seized the goods in good faith and under the belief that they were Russell’s goods, or that he had an interest in them, and that in making the levy he did not in fact act from a malicious motive or intention to injure or oppress the plain*440tiff", the measure of damages will be the value of the goods seized, at their fair cash valuation in Sulphur Springs at the time of their seizure, with interest thereon from that date at the rate of eight per cent, per annum; but if he acted without probable cause to believe that they were the plaintiff’s goods, and with the intent to injure the plaintiff, the jury may find such fair and reasonable additional damages as the facts and circumstances may warrant.
“If the jury find for the plaintiff', the form of their verdict will be: ‘We, the jury, find for the plaintiff, and assess his damages at $ -—,’ filling up the blank with the amount selected by the jury. If they find for the defendant, they simply say so by their, verdict.”
Charge asked by plaintiff' and given by the court:
“ 5. It is not only the right, but the duty of partners to provide for the payment of the partnership debts; and if you believe from the evidence that Ashcroft & Bussell were partners in merchandise, and that they mutually dissolved their partnership by a fair and open transaction, by which the notes and accounts were conveyed to Bussell and the stock of goods conveyed to Ashcroft incumbered with the payment of the firm debts, without any intention to defraud upon their part, the creditors of one of the partners have no right to complain, and the stock of goods would not be liable to seizure for Bus-sell’s debts, and the sheriff in making such seizure would be responsible in damages for such wrongful seizure.
“ 6. Fraud will not be presumed, but must be proved like any other fact, and the burden of such proof rests on the party who alleges fraud.
“ 8. Even if Bussell was insolvent before he made the trade with Ashcroft, by which the entire stock of goods was sold to Ashcroft, if the trade was fairly and honestly made, with the view of providing for the payment of the partnership debts out of the stock of goods in Ashcroft’s hands, and if the whole transaction was fair and open Ashcroft took a good title to the goods, and you will find for the plaintiff his damages in *441the value of the stock of goods at the time of such seizure, with eight per cent, interest per annum up to the present time.
“ 9. A debtor’, even in failing circumstances, may prefer one creditor to another; and if Isham Bussell was insolvent individually, and sold his interest in the partnership goods to Ashcroft with the honest purpose of providing for the payment of the partnership debts, and to get his interest in the firm accounts in order to pay on his individual debts, without any intention of hindering or defrauding his creditors, such transaction would not defeat the title of Ashcroft in the stock of goods, nor would such goods be subject to seizure for Bus-sell’s debts.
“ 10. Whatever might have been the intention of Isham Bussell in making the sale to Ashcroft, if the transaction on Ashcroft’s part was fair and honest, and he bought out Bus-sell with the honest purpose of securing the payment of the partnership debts, and that he did in good faith purchase said stock of goods for a valuable consideration, and assume the payment of such debts without, any participation in or knowledge of any fraudulent intent, then he-cannot be disturbed in the possession of his goods; and if the same were seized for Bussell’s debt, such seizure was wrongful,
“ 11. An officer of the law, in executing process, makes a levy at his own peril; and if, in executing a writ of attachment against one person, he seizes the goods of another, the officer is responsible in damages to such person whose goods he has wrongfully seized. And if you believe from the evidence that Weaver did seize Ashcroft’s goods upon the attachment against Bussell, you will find for the plaintiff whatever actual damages the evidence has shown you that plaintiff has sustained by reason of stich wrongful seizure.”
The defendant asked the court to charge the jury :
“ That if they believe from the testimony that at the time the defendant made the levy he was acting.in good faith and with a purpose only to execute his duty as an officer, that he *442had a right to seize the stock and was entitled to a reasonable time to separate from the stock such amount as would reasonably satisfy the áttaehment and to invoice the same, and that if after the sheriff had done this he offered to restore the remainder of the stock to the plaintiff, and the plaintiff refused to receive the same, then in case you find the goods were in fact and by good faith purchased the property of the plaintiff, still you will not he authorized to find against the defendant beyond the reasonable cash value of the goods actually taken and applied to the satisfaction of the attachment in his bands, with eight per cent, interest thereon from the date of the seizure.”
This instruction was refused by the court.
We think that the eleventh and twelfth paragraphs of the principal charge, and the fifth, eighth, ninth, and tenth paragraphs of the charge given at request of plaintiff, presenting to the jury the idea that the transfer of the goods to Ashcroft might have been only a justifiable preference of the partnership creditors, was inappropriate under the facts of the case, and, repeated again and again as it was, was calculated to mislead the jury. The firm creditors were entitled to be first paid out of the firm assets before the transfer, and we are unable to see that the effect of the transfer was to give them any additional preference payment or security. On the contrary, if valid, its effect w^as to destroy that preference as to so much of the firm assets as passed into Russell’s hands. In no aspect of the transaction docs it admit of the construction that Russell, however honestlyhe may have acted in making the trade, was, in so doing, merely performing a duty to provide for the partnership debts; for such was not its effect. Indeed, in the ninth instruction, given at the request of plaintiff', we find presented the inconsistent idea that Russell’s motive might have been “to get his interest in the firm accounts in order to pay on bis individual debts.” The tendency of that part of the charge on the subject of the right and duty to prefer partnership creditors was to lead the jury *443to look upon the transfer as such a preference, and to find that it was therefore not fraudulent, but valid.
That part of the charge, (paragraph 6, given at request of plaintiff',) that “ fraud will not be presumed, but must be proved like any other fact, and the burden of such proof rests on the party who alleges such fraud,” should have been accompanied with some further explanation as to the character of evidence by which fraud may be established. (Sparks v. Dawson, 47 Tex., 144.)
The latter part of paragraph 13 of the principal charge, authorizing the jury, “ if they believed that the defendant acted without probable cause, and with intent to injure the plaintiff,” to find additional damages, evidently left the jury at liberty in that event to give exemplary damages. But our opinion is that there is no sufficient evidence to support a verdict for exemplary damages, and that the jury should not have been instructed on the subject. The evidence not only fails to disclose any ill-feeling or improper motive, but seems to negative such a conclusion. This error in the charge may have influenced the amount of the verdict.
Appellant complains of other parts of the charge as to the right to levy on partnership property for individual debts, but we are of opinion that the jury must have understood from the entire charge that if the transfer to Ashcroft was invalid, then the sheriff had a right to levy the attachment, and was not liable as a trespasser therefor.
He also complains of various rulings in admitting evidence, but we do not see that the court committed any material error of that sort to his prejudice, unless it be in allowing Russell to answer the following question: “ For what purpose did you tell A. J. Childress, while in a conversation with him as to the contemplated sale to Ashcroft, that you wanted to make said sale ?” It appears from the depositions of Childress that Russell consulted him about the trade some time before it was made, and the question had reference to that time. Although the rule is very liberal in questions of fraud *444in admitting declarations as a part of the'res gestae, we think it would be to extend it too far to allow a question as to what the party charged with the fraud had said as to his motives in a conversation with a third party at a time considerably antedating the transaction. But, although there is a bill of exceptions to the action of the court in allowing this question, the statement of facts does not show what was the answer of the witness. The deposition of A. J. Childress, appended to, but only in part embraced in, the statement of facts, contains his statement as to those declarations, but we do not find in the record anything showing that such evidence was before the jury.
There is still another question growing out of the defense of .Weaver, viz., that he only seized the stock and held it a reasonable time to enable him to separate from it such amount as would reasonably satisfy the attachment, and that when he had accomplished that he offered to restore the remainder, and the plaintiff persistently refused to receive it.
Counsel for appellant have adduced no authority for the proposition that the action of the sheriff", if he actually seized and held for several days .the entire stock, and was guilty of a trespass in seizing any part of it, would be so qualified by the fact that his object was to levy on and retain only a part of the stock, as to make it in law but a conversion of that part. In the absence of authority, we are not prepared to affirm or deny this as a rule of law. Whether the sheriff wrongfully took possession of the entire stock of goods, was, we think, mainly a question of fact.
If he did, and the conversion was complete, the fact that he afterwards tendered back the goods, or a part thereof, does not relieve him from full responsibility. A tort is not cured by a tender without acceptance. (Gibbs v. Chase, 10 Mass., 128; Vosburgh v. Welch, 11 Johns., 175.) The effect of such tender and refusal is discussed by Justice Bronson in Hanmer v. Wilsey, 17 Wend., 91. The case was one where a horse was seized under an attachment illegally issued, and *445on the discovery of this fact the constable returned the horse to the stable, and notified the owner, who refused to receive him. In that case, as in this, the plaintiff* had, before the proffered return, commenced legal proceedings. He says: “But, independent of the fact that the plaintiff had commenced legal proceedings, there was no ground for mitigating damages. The horse had been wrongfully taken, and the plaintiff had a right to insist on being paid the value. The actual return of the horse to the plaintiff’s stable without his assent was a matter of no legal consequence.” Again: “It was a matter of no moment to the plaintiff what became of the horse after the original illegal talcing. Replacing the animal in the plaintiff’s stable without his assent was a nugatory act; it could no more operate to prejudice the plaintiff than any other disposition which the defendant might have made of the property.” The plaintiff" was in that case allowed to recover the value of the property. (See, also, Otis v. Jones, 21 Wend., 395.) In this case any apparent harshness in this rule is alleviated by the fact that the defendant made no effort to show that the goods so proffered back bad subsequently and continuously been held for plaintiff’s benefit.
By the charge of the court, the plaintiff was allowed to recover, as compensatory damages, the value of the goods seized at the time of the seizure, with eight per cent, interest. This was the correct rule if the seizure was such as to amount to a conversion. (McInroy v. Dyer, 47 Penn., 120; Field on Dam., sec. 768, et seq.; 23 Cal., 349.)
For the error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.