« PreviousContinue »
How Sheriff ought to plead.
therein stated, which tended to excuse him. The bailiff's general conversation with any indifferent person is not evidence against the Sheriff. Declarations made by a bailiff while the debtor is in his custody are admissible against the Sheriff for an escape.c So in an action against the Sheriff for a false return to a writ, what was said by the bailiff, to whom the warrant under it was directed, when asked by the plaintiff's attorney before the return of the writ, why he did not execute it, is evidence against the Sheriff.d Declarations made by the officer whilst in possession under a fi. fa., after the return of it, are evidence against the Sheriff. So, when the Sheriff had used the affidavit of his officer on an interpleader motion, the affidavit was used against him, although the deponent was in Court, and not called.f So the declarations and acts of a replevin Clerk, at the time of his taking the bond, were admitted as evidence against the Sheriff, though there was no proof, except from those declarations and acts, that he was a replevin Clerk at the time. If an execution creditor has indemnified the Sheriff, what he says is evidence in an action of trespass against the Sheriff for taking the plaintiff's goods under an execution against a third person. Whenever the law places the Sheriff, because of his laches, in the place of the debtor, as regards the creditor, the debtor's admissions will affect the Sheriff; for instance, in an action against the Sheriff for an escape on mesne process, an admission by the defendant in the former action, as to his liability, is evidence against the Sheriff.k
The execution creditor, to justify his taking body or goods under process, must show the judgment and writ. When the plaintiff is other than the execution debtor, the Sheriff or his officer must show both judgment and writ. When the execution creditor or debtor sues either the Sheriff or his officer, the writ alone is sufficient.
Where an officer for whom the writ or warrant would of itself have been a justification, joins in pleading with the party, who can only defend himself on the validity of the judgment or proceeding, he, the officer, stands or falls by the entire plea."
No writ of execution, except an elegit, need be returned; and therefore a Sheriff, justifying under one, need not, in general, show their return; the distinction being, in this respect, between
a Haynes v. Hayton, cited in Bessey
b North v. Miles, 1 Camp. 390.
f Brickell v. Hulse, 7 Ad. & E. 455.
& Plumer v. Brisco, 11 Q. B. 46.
a justification under mesne and final process. This is the general rule; but if any ulterior process in execution against the goods be indispensable, to complete the justification, then it may be necessary to show to the Court the return of the prior writ, in order to warrant the issuing of the other.a
A Sheriff may justify under a writ, though it be irregular.b
The Sheriff is not entitled to any notice of action; for by the Notice of law of England, bringing an action is a sufficient demand and action. notice, and, whenever the contrary is the case, it is and must be matter of legislative enactment.c
FOR ACTS OF TRESPASS.
FOR any wrong done by the Sheriff, acting judicially, no action
The general principles of the Sheriff's liability for the acts of his officers have been already explained; but, it may be convenient for practitioners to have collected a few instances of what formerly would have been classed under the general name of trespass. Thus, when the process of a superior or inferior court has been misapplied, as if A. or his property be taken upon process against B. or his property, the Sheriff is a trespasser.e So if process be abused, as if he break open an outer door, or arrest out of the bailiwick, or after the return day of the writ;f or execute a fi. fa. after notice of allowance of a writ of error;8 or detain a party on a ca. sa. after he tenders the debt and costs; or after notice from the plaintiff that he has released the debt; or retake one after a voluntary escape on a ca. sa.; or if, after directions from the plaintiff not to execute the writ, he does execute it; or seize under a fi. fa. fixtures of the defendant, being the freeholder, he is liable as a trespasser; so where after
seizure and sale by auction of chattels real under a fi. fa., the Sheriff remained in possession an unreasonable time for the further execution of the writ. So when he continues in possession of goods more than a reasonable time, he becomes a trespasser.b No action will lie against him or his officer for arresting a party permanently or temporarily privileged from arrest, though done with a knowledge of the fact, and from malicious motives. So he is justified in taking a defendant in execution under a writ which pursues the name in the action on which the judgment has been obtained, though that be not the defendant's proper name.d If father and son bear the same name, and a writ of fi. fa. issue against the son, without the addition of the younger, primá facie the father is intended; but this prima facie intendment may be rebutted, and the Sheriff made liable for taking the father's goods, by showing that the judgment was obtained and the writ issued against the son.e
The form of the declaration (in the framing of which few, if any, difficulties can well arise since the "Common Law Procedure Act," 1852) necessarily depends upon the nature of the wrong complained of, that is to say, whether it be a wrong to the person, to the personal or to the real property of the plaintiff. For instance:-That the defendant broke and entered a certain dwelling-house of the plaintiff, situate, &c., (or certain land of the plaintiff, called — &c.,) and there seized and carried away, to wit, &c.; and the plaintiff claims £- Or that the defendant seized and laid hold of the plaintiff and carried him to prison, and kept him there imprisoned for hours. And the plaintiff claims £ By the new pleading rules of Hil. T. 1853, it is provided that "in actions for torts the plea of Not Guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the indictment, and no other defence than such denial shall be admissible under that plea; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. All matters in confession and avoidance shall be pleaded specially. In actions for taking, damaging, or converting the plaintiff's goods, the plea of not guilty shall operate as a denial, of the defendant having committed the wrong alleged by taking, damaging, or converting the goods mentioned, but not of the plaintiff's property therein."
The plea of not possessed puts in issue the property as well as the possession. Under this plea, the defendant may show, that the goods had been fraudulently assigned to the plaintiff, and that they were, in truth, the goods of the party against whom the writ
issued ; but he cannot show under it that the assignment was made after the delivery of the writ to the Sheriff; that must form the subject-matter of a special plea; for the assignment, if bona fide, passed the property, although the Sheriff may levy upon it, unless sold in market overt.b The question of fraud or no fraud is for the jury, and not for the Court.
Having stated the general effect of the pleas of not guilty and not possessed, we must refer the pleader to books of precedents for pleas in confession and avoidance, at once numerous and stamped with authority.
The plea of payment of money into Court, in actions of tort, if the declaration be specific, admits the cause of actions so spe. cifically stated. But when the declaration is general, the plea admits a cause of action to the amount paid into Court, but operates as an admission for no other purpose.d
In order to prove the fraud, declarations made by the assignor at the time of executing the bill of sale are admissible, as part of the res gestæ, but not if made at another time. Where A. sued out a writ of fi. fa. against the goods of B., and the Sheriff Evidence. executed a bill of sale of certain goods to A., after this B. remained in possession of the goods, and the Sheriff again took them under another execution against B.: held, that in an action brought by A. against the Sheriff' for taking these goods, the declarations of B. were evidence for the defendant to show that A.'s execution was merely colourable. If he means to say that a deed, good as against all except creditors, is fraudulent and void, he must show that he represents a creditor.g
The evidence necessary to establish the connection between the Sheriff and his officer has been already pointed out.h
The damages recoverable in these actions are such as the plaintiff Damages. can prove that he has actually sustained. Where the goods, &c., are sold, and the plaintiff never regains possession, the jury may give their full value. If he wrongfully seize goods which are afterwards taken from him by another wrongdoer, the owner of the goods may, in an action against the Sheriff, recover special damage the amount necessarily paid to the other wrongdoer, in order to get them back.k
a Ashby v. Minnitt, 8 Ad. & E. 121. b Samuel v. Duke, 3 M. & W. 631. See Twyne's ca. 1 Smith's L. C. 1, n.
d Schreger v. Carden, 11 C. B. 851; Perren v. The M. R. & C. Co., ib. 855; ante, p. 73.
e Phillips v. Eamer, 1 Esp. 356; Penn v. Scholey, 5 ibid. 243; Lewis v. Rogers, 1 C. M. & R. 48.
What is a
FOR ACTS OF CONVERSION.
CONVERSION means an act inconsistent with the general right of conversion. dominion in the owner of the chattel; therefore, to maintain this action, the goods must be destroyed, or changed in quality, taken, or detained, with intent to take them to the defendant's own use, or to deprive the owner of them.a
The Sheriff, as we have seen, cannot be made a trespasser by relation; but for an act of conversion he may be overreached.b
To support the action, the plaintiff must have had, at the time perty plain- of the conversion, a right of property (general or special), and the actual possession, or the right to the immediate possession, as against the defendant, of the subject-matter of the suit. The bare fact of possession of a personal chattel is sufficient evidence of title as against a mere wrongdoer.d
The form of declaration given by "The Common Law Procedure Act, 1852," (from which any other may easily be framed,) is this:That the defendant converted to his own use [or wrongfully deprived the plaintiff of the use and possession of] the plaintiff's goods; that is to say, iron, hops, household furniture [or, as the case may be]."
By the new pleading rules of Hil. T. 1853 it is provided that "the plea of not guilty shall operate as a denial of the defendant having committed the wrong alleged by taking, damaging, or converting the goods mentioned, but not of the plaintiff's property." Under the plea of not guilty, not merely the fact of conversion but its lawfulness is in issue.
Under the plea of not possessed (which is generally pleaded with not guilty) the Sheriff may, amongst other things, set up the jus tertii; in other words, that the goods at the time of the alleged conversion were the property of a third person. The property, as well as the possession, is in issue under it. What has been said in the former section, as to fraudulent assignments, equally applies to the plea of not possessed in actions of this kind.
It should be kept in mind that we are only writing of actions brought against the Sheriff; being so, it would be idle to enter into the question, when a demand and refusal is requisite, or when they amount to or afford evidence of a prior conversion; for if he has exposed himself at all to such an action, it must needs be by
a Fouldes v. Willoughby, 8 M. & W.
b Cooper v. Chitty, 1 Smith L. C. 220.
2 Wms. Saund. 47.
dAs to its being conclusive evidence,
see Elliott v. Kemp, 7 M. & W. 312.
e Whitmore v. Green, 13 M. & W. 107; Young v. Cooper, 6 Exch. 259; Jones v. Davies, ib. 664.
f Leake v. Loveday, 5 Sc. N. C. 926.