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As regards the existence of the cause of action, the same evidence that would be sufficient if the action had been simply between A. and B. (the debtor and creditor) will be sufficient as against the Sheriff. An admission by the debtor is sufficient.a If the issuing of the capias be in question it is thus proved: if returned and filed, by an examined copy; if not returned, notice to produce should be given to the Sheriff's attorney; and upon proof of the service of the notice, and of the delivery of the writ, and that search has been made at the treasury for the return, secondary evidence will be admissible; the secondary evidence will be supplied by a clerk, or by any one who can speak to the facts. The indorsement of non est inventus on a writ of ca. sa. is evidence of delivery. The production of a bill of sale, reciting these facts, will also be good evidence as against the Sheriff of the facts so recited. A bound-bailiff may prove that he endeavoured to make the arrest. It is usual, for the purpose of evidence, to give the bailiff notice where the debtor is to be found: if not done, and we have seen for the maintenance of the action that it need not, persons must be called who can of their own knowledge say that the debtor was to be seen as usual, and continued, after the delivery of the writ to the Sheriff, in the daily exercise of his usual calling.
The measure of damages, for such default, is not necessarily the whole debt; but such a sum as the jury may consider equivalent to the real loss. If there has been no actual loss, still, in the case of final process, the plaintiff must have nominal damages. If there has been no actual loss, in the case of mesne process, he must fail; he is not entitled even to nominal damages.d
FOR NOT ASSIGNING BAIL-BOND.
BAIL-bonds were not assignable at common law; but now, if one be taken upon process at common law, the Sheriff is bound by the statute of 4 Anne, c. 16, s. 20, on the request and cost of the plaintiff, or of his attorney, to assign it; if he refuse to do so, he is liable, in damages, for the consequences. Since the 1 & 2 Vict. c. 110 (the capias being wholly collateral), the taking an assignment of the bail-bond no longer affects the right of the plaintiff to proceed in the original action.f
The declaration should state the debt, the writ of summons, the
a Gibbon v. Coggon, 2 Camp. 188; Rogers v. Jones, 7 B. & C. 86.
b Blatch v. Archer, Cowp. 63; Stark. Ev. 1009.
Woodward v. Larking, 3 Esp. 286. d Clifton v. Hooper, 6 Q. B. 468.
e See Posterne v. Hanson, 2 Wms. Saund. 61.
f Betts v. Smyth, 2 Q. B. 113; Reg. v. Sheriff of Montgomeryshire, 9 M. & W. 448; 2 Wms. Saund. 61, n.
order, capias, delivery of it to the Sheriff, the arrest, the taking of the bail-bond, the non-compliance with its terms, and its consequent forfeiture, the request made to the Sheriff to assign it, offer to pay the costs, and breach of duty. It is usual to add a count for an escape, to guard against the event of a bail-bond not having been taken.
The breach of duty or wrongful act, here alleged, is the refusal to assign the bail-bond. The plea of not guilty, therefore, simply Plea. puts in issue that fact; any other material averment in the declaration, if disputed, must be denied; and all matters in confession and avoidance, in excuse or justification, must be specially pleaded.
The evidence necessary to prove the matters of inducement, if Evidence. denied, has been sufficiently detailed in the preceding section. To show the demand, refusal, and tender of costs of assignment, the person who acted in the matter should be called. If the giving the bail-bond be in issue, notice to produce it should be given, and the service of such notice proved to let in secondary evidence.
The plaintiff, it would seem, is entitled only to such damages as Damages. he can prove he has actually sustained.
FOR CARRYING TO TAVERN, WITHOUT CONSENT, OR TO PRISON
As appears by the preamble of the 32 Geo. 2, c. 28 (1759), so
corporation, or market town, so as such dwelling-house be not the house of the person arrested, and be within the county, riding, division, or liberty, in which the person under arrest was arrested; and then, and in any such case, it shall be lawful to and for any such Sheriff or other officer or minister, to convey or carry the person or persons so arrested, and refusing to be carried to such safe and convenient dwelling-house as aforesaid, to such gaol or prison as he, she or they may be sent to by virtue of the action, writ or process against him, her or them." Penalty 50l. (over and above such penalties or punishments as he or they shall be liable unto by the laws now in force).
A refusal is a condition precedent to the right of the officer to take his prisoner to gaol within twenty-four hours from the time of the arrest. Now, a refusal may be in many ways; a prisoner may nominate, and then refuse to go; or, he may refuse to nominate, or he may nominate and go, and then refuse to stay.a A mere omission, or neglect to do an act, is not a refusal (the word implies something more); neither is a mere submission. In one case, the officer said, " You will go with me to the Granby;" his prisoner said, "Very well :" and it was held not to be a refusal, within the meaning of the statute; it was but a mere submission to the will of one who did not give him, at least inform him that he had a choice of place for a limited time. In another, the prisoner said to the officer, "May not I be taken to a spunginghouse?" and held insufficient. The party arrested must be distinctly informed of his right of option before he be conveyed to prison.
The place With respect to the place nominated; it is clear that the officer nominated. has a right to exercise his judgment as to its safety and convenience, otherwise a house might be nominated where a rescue was easy. The words safe and convenient dwelling-house are to be understood therefore as safe and convenient for the Sheriff, not for the prisoner. Again, an officer is not bound to take a prisoner to any house he may wish to go to for any purpose his caprice may dictate, as to an attorney to consult him; but only to a safe and convenient dwelling-house for the purpose of remaining there during the twenty-four hours allowed by law. An insinuation has been thrown out, that an attorney's house, even for the purpose of remaining there, is not a safe and convenient dwelling-house within the meaning of the statute. An attorney might be the only friend through whom the debt could be satisfied or bail given, and that his accidentally being an attorney should preclude a prisoner of his friend's assistance seems an odd conclusion, if not in direct contravention of the statute itself. Moreover, for a Court of Justice to decide so, involves something harsh towards the general body of its own officers.
a Dewhirst v. Pearson, 1 Cr. & M.
b Simpson v. Renton, 5 B. & Ad. 35.
372; Barsham v. Bullock, 10 Ad. & E.
e Silk v. Humphery, 4 Ad. & E. 970.
This space of twenty-four hours cannot be abridged of an instant Time canof time. Therefore, the putting a prisoner into a state of being not be carried to prison before every moment of the time is expired, as abridged. the putting him upon a coach, or the like, cannot be justified; for if it could be so abridged the prisoner would not have the twenty-four hours, only a part of them; and, in many cases, the whole of the time might be consumed on the way, and thus the statute be wholly defeated.*
The action is at the suit of the party aggrieved, to recover the penalty of 50%.b
The declaration alleges the summons, order, capias, its delivery Declarato the defendant, the arrest and wrongful act complained of, that tion.c is, that he carried the plaintiff "to a certain gaol or prison within twenty-four hours from the time of the said arrest, though he, the plaintiff, did not refuse to be carried to a safe and convenient dwelling-house of his own nomination or appointment within three miles from the place where the plaintiff was so arrested, such place not being a city, borough, corporation or market town, and such dwelling-house not being the house of the plaintiff; contrary to the form, &c., whereby and by force, &c., the defendant forfeited and became liable to pay for the said offence to the plaintiff, being the party thereby aggrieved, the sum of 501."
To this the defendant may plead "nil debet," and give the Plea. special matter in evidence under it. The effect of the plea is to put the plaintiff on proof of all the material averments in the declaration.
The evidence necessary to support the plaintiff's case may, it is Evidence. hoped, be sufficiently collected from the previous remarks upon the refusal, &c., as to need no further comment.
The plaintiff, if he make out his case, will be entitled to the Damages. penalty of 50%.
REFUSING TO ACCEPT BAIL.
(23 Hen. 6, c. 9.1)
THE statute requires Sheriffs and others to let to bail all manner of persons "in their custody by force of any writ, bill, or warrant,
a Ibid.; 1 Cr. & M. 372. b Sect. 12.
The venue is local, 21 Jac. 1, c. 4, 8. 2: see 4 Ad. & E. 959; 1 Cr. & M. 365. The first count may be as in Dewhirst v. Pearson (if the fact) for carrying the plaintiff to a tavern without his free will and consent; the second may be for taking plaintiff to prison within twenty-four hours. In Barsham v. Bullock, 10 Ad. & E. 26, there seems to have been three or more counts, but the particulars do not appear.
d Or not guilty, 21 Jac. 1, c. 4, s. The new pleading rules of Hil. T. 1853, do not affect this plea in a penal action see Faulkner v. Chevell, 5 Ad. & E. 213; Spencer v. Swannell, 3 M. & W. 154; Jones v. Williams, 4 ib. 375.
e Treble costs are abolished by 5 & 6 Vict. c. 97.
f Not repealed by the Uniformity of Process Act, nor by the 1 & 2 Vict. c. 110: see Posterne v. Hanson, 2 Wms. Saund. 59.
in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons be so let to bail," &c.a
: If the defendant tender sufficient sureties, that is, persons having sufficient within the Sheriff's bailiwick, and the Sheriff refuse to accept them, he is liable in damage, or he is liable in a qui tam action for the penalty of 40l. given by the statute."
Declaration. The declaration by the party aggrieved states, that he was duly in custody of the defendant by virtue, &c., which writ was indorsed for bail for £- -, and that the plaintiff tendered to the defendant reasonable sureties of sufficient persons having sufficient within the county, to become bail for the appearance of the plaintiff; and that the defendant wrongfully refused to accept the said sureties so offered.
The breach of duty or wrongful act here alleged is the refusal to accept the offered bail. The plea of not guilty therefore simply puts in issue the fact of refusal: any other material averment, if disputed, must be denied; and all matters in confession and avoidance, in excuse or justification, must be specially pleaded. If the action be for the penalty, nil debet may be pleaded, and the special matter given in evidence under it.
With regard to the evidence no difficulty can well arise. The party aggrieved recovers treble damages, that is, three times the single damages; thus, if the jury give 20l. the Court will award 401. more. In the qui tam action one-half of the 40l. penalty goes to the Queen to be employed to the use of her house, the other half to the common informer who sues.
FOR TAKING INSUFFICIENT PLEDGES IN REPLEVIN.e
BEFORE the Sheriff or his officer can replevy he must take pledges.f By the common law, which still governs a distress damage feasant, it is still necessary that pledges for the prosecution, which are merely nominal, and pledges pro ret. hab. be taken. The stat. of 11 Geo. 2, c. 19 (in matter of rent), requires him to take both,
a Lovell v. Sheriffs of London, 15
b No action lies against the Sheriff
d Buckle v. Bewes, 4 B. & C. 154; Tidd's Pr. 1025.
e For not taking a replevin bond, or for losing the bond, an action will equally lie; see Perreau v. Bevan, 5 B. & C. 284.
f See p. 37.
Ib.; Co. Litt. 145 b.