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He may arrest a privileged person; and though he knows the Arrest of fact, and makes the arrest maliciously, no action will lie against privileged him.a If a bankrupt be arrested for debt, or on any escape warrant in coming to surrender, or shall, after his surrender, and while protected by order of the Court, be so arrested, he must, on producing such protection to the officer who shall arrest him, and giving such officer a copy thereof, be imme diately discharged.b He is bound to execute the process of He is bound the law in the most effectual way. It is his duty to arrest the to arrest the party the first opportunity; if not, he will be liable for any damage that may result from his negligence.d The true measure
of damage, in such a case, is not necessarily the whole debt, but such a sum as the jury may, in each case, think equivalent to the real loss sustained; if, on final process, no actual loss be made out, the verdict must still be entered for nominal damages. He must raise the posse comitatus if need be. Should the plaintiff Execution or his attorney command the Sheriff not to execute the writ, he suspended. cannot do so; for so far he is under the control of the party.g Disputes have arisen as to whether John can be arrested by Misnomer. the name of William. The difficulty is more seeming than real. John, for instance, is sued as William, and judgment is recovered against him, by the name of William. Now, as it is an axiom, that the writ of execution must accord with the judgment, it can only issue against him by the name of William, and the Sheriff must take him in that name. John, in short, is estopped by the record, from saying his name in not William.h
When judgment is obtained against husband and wife, and both Husband are taken in execution, a judge may, and in general does, dis- and wife. charge her on affidavit that she has no separate property, or that there is collusion between the execution creditor and her husband; but, if she alone be taken on such a judgment, the courts are not agreed as to the power to discharge.i The Court of Q. B. has decided that the judge has a discretionary power in this case.k If the judgment be against the wife alone, of course she is not entitled to her discharge.
If the Sheriff be ordered to return non est inventus, and, in the meantime, the defendant surrender, he is bound to take him.1
Taking to gaol.
When a person is taken on a ca. sa., he may be taken at once to gaol; the 32 Geo. 2, c. 28, applying only as to arrest on mesne process.a
It is no part of the Sheriff's duty, in executing this writ, to receive the money; but if he do receive it, and pay it over to the plaintiff, and the Sheriff, after such payment, liberate his prisoner, it is well; if he set him free before such payment, it will be an escape.b
Attorney's By The Common Law Procedure Act, 1852, a written order to power to discharge, under the hand of the attorney in the cause, by whom discharge. the writ was issued, is a justification to the Sheriff, unless the party, for whom such attorney professes to act, shall have given notice to the contrary; but such discharge is not to be a satisfaction of the debt, unless made by the authority of the creditor; and, lastly, it provides that nothing in the Act shall justify any attorney in giving such order to discharge without the consent of his client.c
The plaintiff, of course, can at all times direct his discharge; and any detention afterwards would be a trespass.
I have taken the within-named C. D. whose body I have ready as within I am commanded.
The answer &c.
Cepi Corpus as to one Defendant and Non est inventus as to
I have taken the within-named C. D. whose body I have ready as within I am commanded; but the within-named E. F. is not found in my bailiwick.
The answer &c.
Non est inventus of two.
The within-named A. B. and C. D. are not nor is either of them found in my bailiwick, The answer &c.
a Evans v. Atkins, 4 T. R. 555.
c 15 & 16 Vict. c. 76, s. 126: see
d When the writ is indorsed with a direction to be returned non est inventus, the meaning is, that the Sheriff is not
to search for the debtor; but if the debtor surrenders himself the Sheriff must detain him; Magnay v. Monger, 4 Q. B. 817. When the writ is lodged at the Sheriff's office merely to give the bail notice, this is a good return, though the plaintiff knew where to find the defendant; but if the defendant be already in custody of the Sheriff he cannot return non est inventus, see 2 Wms. Saund. 71e.
Non est inventus of several.
The within-named A. B. and the rest of the within-named defendants are not found in my bailiwick. The answer &c.
Non est inventus of one and Mandavi Ballivo of another. The within-named R. S. is not found in my bailiwick; and as regards the taking of the within-named I. F. I have commanded W. W. bailiff of the liberty of who &c. The answer of
Withdrawal or Suspension of Writ.a
I do hereby certify and return that after the coming of this writ to me directed that is to say on the day of A. D. 18- I was commanded by the withinnamed A. B. [or "by one E. F. the attorney of the within-named A. B."] to forbear [or "suspend"] the execution thereof and have forborne [or "suspended"] accordingly. The answers &c.
Cepi Corpus and Discharge out of Custody.
I have taken the within-named C. D. and committed him to the common gaol of our lady the Queen of her castle of C. there to be kept in safe custody so that I might have his body before our lady the Queen [" before the justices of our lady the Queen" or "barons of her Exchequer "] at Westminster as within I am commanded; and I do hereby further certify and return that afterwards that is to say on the day of A. D. 18- by command of a certain other writ of our lady the Queen to me directed and delivered a transcript whereof is annexed to this writ [or "by the directions and command of the within-named A. B." or "of one E. F. the attorney of the within-named A. B."] I caused the said A. B. to be delivered from that prison and therefore the body of the said C. D. before &c. at the day and place within contained I cannot have as within I am commanded. The answer &c.
That the Defendant had become Bankrupt and obtained his Certificate, wherefore the Sheriff forbore to take him.a
I do hereby certify and return that before the coming of the annexed writ to me directed the said C. D. in the said writ named then being a trader within the meaning of the laws relating to bankrupts and being then indebted to E. F. a subject of this realm in the sum of £50 and upwards and being also then indebted to divers other subjects of this realm in divers other large sums of money became and was a bankrupt and was thereupon duly found and adjudicated to be a bankrupt. And I do hereby further certify and return that such proceedings were thereupon had that the said C. D. afterwards and after the recovery of the sum and interest in the said writ mentioned and before the coming of the said writ to me directed to wit on the day of in the year of our Lord 18- duly obtained his certificate of conformity and which certificate afterwards and before the coming of the said writ to me directed was duly allowed according to the form of the statute in such case made and provided. And I do hereby further certify and return that the cause of action upon which the recovery in the said writ mentioned was had and obtained accrued to A. B. in the said writ named against the said C. D. before such time as the said C. D. so became a bankrupt. Wherefore I the said Sheriff having notice of all and singular the premises aforesaid did forbear to take the body of the said C. D. as within I am commanded. The answer &c.
Before and at the time of the coming of this writ to me directed the withinnamed C. D. was and still is a peer of the realm having privilege of parliament ["a
a See ante, p. 205.
menial servant of her majesty the Queen" or the like] wherefore the body of the
THIS is a writ of execution founded upon a judgment of outlawry, or of waiver, pronounced by the coroner in the County Court, or by the Recorder of London in the Court of Hustings. By the common law, in all actions of trespass quare vi et armis, and in which there was a fine to the Crown, the process was a capias; and in such cases, process of outlawry lay by the common law. But in account, debt, covenant, and the like, the process was by summons and distress infinite, and not by capias. In such cases, the capias and outlawry were introduced by Act of Parliament.d
The writ is either general, or special; that is to say, against the person simply, or against the person and goods, or lands and tenements of the defendant. The mode of executing this writ is the same as that of other writs, with this distinction, however, that the Sheriff may break open the house of the person outlawed.e 1st. As to the body of the debtor: Privilege from arrest has been already considered. At common law the defendant could not have been bailed when taken on a ca. utl.; neither can he be bailed since 4 & 5 W. & M. c. 18, in criminal cases; at least, in misdemeanors, after conviction; nor when taken upon an outlawry after judgment. In these cases, therefore, he must be kept in arctá custodiá. 2ndly. With respect to his goods, chattels, lands,and tenements: the Sheriff is to inquire, by the oath of honest and lawful men of his county, what he hath or had on the day of his outlawry, or at any time afterwards; and, by their oath, to extend and appraise the same according to the true value, and to take them into the Q.'s hands and safely keep them. It is a power to take and appraise, but not to sell. He is to impanel a jury, who are to make inquiry of the goods and chattels of the defendant, including his debts, and also of his lands and tenements. He is to appraise the goods, and to extend or value his lands and tenements.1 Witnesses may be subpoenaed to attend the execu
Deac. & C. 16; Anon. 15 L. J. Q. B. 268.
3 Burr. 1484; 4 ib. 2540.
Ibid. Outlawry on mesne process is abolished, 15 & 16 Vict. c. 76, s. 24: i Gilb. 75.
* Lane, 23; Lutw. 329, 1513: see Bullock v. Dodds, 2 B. & A. 276.
The full legal import of the words lands and tenements has been already considered, ante, p. 173. This, however, should be kept in mind, that an elegit is more comprehensive than a special ca.
tion of the inquiry; when done, the Sheriff takes possession of the goods and chattels, He must not oust nor disturb the possession of any tenant; he can only take the issues or profits of the freehold tenements.
General Capias Ullagatum.d
Victoria &c. We command you that you omit not by reason of any liberty in your bailiwick but that you enter the same and take C. D. being outlawed in your said bailiwick [or "in the county of -"] on the
day of last past at
the suit of A. B. in an action on contract [if the writ issue into a county different from that in which defendant was outlawed say as our Sheriff of turned to us (or to our justices' or 'to the barons of our Exch.') at W. at a certain day now past "] if he shall be found in your bailiwick and him safely keep so that you may have his body before us [&c.] at W. on the day of A. D. to do and receive what our Court before us [or &c.] shall consider of him in this behalf; and have there this writ. Witness &c.
Special Capias Utlagatum.
Victoria &c. We command you that you omit not by reason of any liberty in your bailiwick but by the oath of good and lawful men of your said bailiwick you diligently inquire what goods and chattels lands and tenements C. D. late of hath or had in your bailiwick on the last past or at any time afterwards on which day he was outlawed in your county [or "in the county of -"] at the suit of A. B. in an action of as you have lately returned to us [&c. if the writ issue into a county other than from that in which defendant was outlawed say "as our Sheriff of returned to us [&c.] at W. at a certain day now past"] and by their oath cause the same to be extended and appraised according to the true value thereof and what you find by that inquisition take into our hands and cause to be safely kept so that you answer to us for the true value and issues thereof; and having so extended and appraised the same what you shall have done thereupon make known to us [&c.] at W. on the day of 18 distinctly and plainly under your seal and the seals of those by whose oath you shall have made that extent and appraisement: And for that the said C. D. so being outlawed conceals himself and runs up and down in your county in contempt of us and in prejudice of our crown as we are informed we command you that you take the said C. D. wheresoever he shall happen to be found in your bailiwick as well within liberties as without and keep him safely so that you may have his body before us [&c.] at W. at the aforesaid time to do and receive what our said [&c.] shall consider of him in this behalf; and have there this writ. Witness &c.
Sheriff's Warrant on General Capias Utlagatum.
Esq. Sheriff of the county aforesaid to and
my bailiffs to wit. greeting: By virtue of H. M.'s writ of ca. utlagatum to me directed and delivered I do hereby command you and each of you jointly and severally that you take C. D. wheresoever he may be found in my bailiwick and him safely keep so that I may have his body before our Lady the Q. [in C. B. "before the justices of our Lady the Q." in Exch. "before the barons of H. M.'s Exch."] at W. on the day of A. D. 18- as in the said writ I am commanded; and in what