Page images

with this difference only, that it gives the penalty for not prose, cuting to the defendant, which at common law belonged to the Crown.a


Pledges (plegii) are persons becoming surety. If the Sheriff take money or goods, he will be liable to an action for so doing. The word plegii is in the plural number, yet in a distress damage feasant, if one be found sufficient, the Sheriff has discharged his duty; in a distress for rent, if either surety be insufficient at the time they are taken, the Sheriff is liable. In the one case, then, there is no obligation on the Sheriff to take a replevin bond with two sureties; in the other there is. Again, the pledges must be sufficient in law as well as in estate, for if they be poor in estate or insufficient in law, as within age, women covert, outlawed, persons politic or bodies corporate, the Sheriff must answer it. But if sufficient at the time they are taken, and become insufficient afterwards, the Sheriff is excused. The degree of inquiry into the circumstances of sureties required of the Sheriff, has been a fertile source of litigation; the rule, however, is that he must exercise a reasonable discretion and caution in receiving them; whether he has done so or not is a question for the jury in each case, and the law cannot be laid down with more precision.d

In case of misbehaviour by the Sheriff or by his officer in relation to replevin, the Court will issue an attachment. But for taking no bond or for taking one with insufficient pledges, the Court will not do so, for as the taking of the bond is directed by act of parliament and not by the Court, the neglect to do so is not looked upon as a contempt of Court. The proper remedy, therefore, for the party aggrieved is an action.f The Sheriff is not discharged by the defendant in replevin proceeding on the bond. If the defendant in replevin elect to proceed on the statute 17 Car. 2, c. 7, he is not confined to his execution under that statute, he may sue the sureties or the Sheriff.h

As to the proper time for commencing the action, there is a dis- Time of tinction when the bond is taken on a distress at common law, and commencwhen taken on a distress not at common law; for instance, where ing action. the distress is upon cattle damage feasant, no action can be brought until after a ret. hab., and a return of elongata thereon. But a bond under the 11 Geo. 2, c. 19, being conditioned for prosecuting the suit with effect, that is, success, is forfeited immediately on the plaintiff below being non-prossed.k

The party entitled to an assignment of the bond is the proper Parties to

[blocks in formation]



person to bring the action, that is, the avowant; or where there is no avowant on the record, the person making conusance.a

The declaration states the taking, replevy, plaint, judgment, the writ of ret. hab. and return of elongata thereon, the Sheriff's duty to take bond with sufficient sureties, and defendant's neglect of duty. The breach of duty or wrongful act here alleged, is the taking insufficient pledges which is put in issue by the plea of not guilty. The replevying if put in issue may be shown by the original precept to deliver and delivery. If the precept remain in the possession of the bailiff he should be served with a subpoena duc. tec., but if it has been returned to the Sheriff, his attorney should be served with a notice to produce it, with a view to secondary evidence. The connection between the Sheriff and the bailiff must also be established by the evidence already laid down. If the taking of the bond be in issue, the defendant should be served with a notice to produce it, if in his possession, and the service of such notice proved. When it is in evidence that the Sheriff has assigned the bond to the plaintiff, it is unnecessary to call the attesting witness; for as against the Sheriff, proof of the assignment by him to the plaintiff is sufficient evidence of its due execution.

The sureties themselves are competent witnesses to prove whether they were sufficient or not.

The penalty of the bond is the limit of damages. Within that limit the Sheriff is liable to the extent of the rent in arrear at the time of the distress, and the costs in the replevin suit when the value of the goods seized exceeds the amount of the rent due; but where the value of the goods is less than the rent in arrear, the damages are limited to that value and the costs. The costs of proceedings against the sureties may also be recorded against the Sheriff.g



A RETURN is the Sheriff's answer or certificate (upon his oath of office), touching that which he is commanded to do by process delivered to him. It is general or special. If general, it is usually indorsed on the writ itself. If special, it is commonly engrossed

Page v. Eumer, 1 B. & P. 378.
b Hucker v. Gordon, 3 Tyr. 107.
In Plumer v. Brisco, 11 Q. B. 48,
there were several other pleas, but
semble not necessary.
d Ante, p. 228.

e Scott v. Waithman, 3 Stark. Rep. 168; Plumer v. Brisco, 11 Q. B. 52. f 1 Wms. Saund. 195, i. n. (p). & Ib.

Dalt. ch. 36, 41; Vin. Abr. Sheriff Ret.

on a distinct schedule or piece of parchment, and annexed to the writ, with some such words as these indorsed on the writ-the execution of this writ appears in a certain schedule hereunto annexed. He ought to set his christian name and surname to every return, Form of, &c. so that the Court may know of whom it took it, if need be. It is not necessary that it be set sua propriá manu; it may, and is generally, done by the Under-sheriff. But all returns must be in the name of the High Sheriff. Where there are two persons (as in Middlesex and in some counties corporate) the names of both must be set to it, for in law they constitute but one officer. If a return be by coroners or elizors, all must sign it. If, however, the writ be directed to coroners generally, and not by name, the return may be made by the survivor in case of death, for the survivor is coroner; otherwise in the case of Sheriffs. If the Sheriff die, the Under-sheriff, before a new appointment, must return the writ in the name of the deceased Sheriff. A new Sheriff may make a return of a writ directed to his predecessor in office, because it is directed to one as Sheriff, and not by this or that name.



As to the certainty required in returns. As the object of a re- Certainty of turn is to inform the Court of the truth of the matter, precise certainty in form is not required. If the whole command of the writ be shown to be performed in substance, it is sufficient, as captus est to a capias, attachiatus est to an attachment, without saying where, by whom, or how. So if it refer to the writ without repeating the words of it. Surplusage will not vitiate it. It must be in substance an answer to the whole writ; for instance, a panel with nine names or with fewer than the number required is defective. It must be positive, not equivocal nor evasive. Thus, nulla bona, or non est investus prout ei constare poterit is uncertain, he should return nulla bona or non est inventus.k

It must not in general contradict his own former return, nor that of his predecessor in office; nor falsify the writ nor the record nor be against the confession of the party.1 Imperfect and insufficient returns are aided by the stat. of jeofails;m by appearance; or they may be amended by the Court, even after an attachment granted against the Sheriff for not bringing in the body.

The return was formerly deemed of such high regard, that as a

[blocks in formation]





general rule, no averment was admitted against it. Now, however, in all cases it is regarded as evidence only-evidence not conclusive even upon the Sheriff himself.b

Imperfect or insufficient returns may be amended.c

If the Sheriff make no return the Court will grant an attachment against him Not returning a writ, without other default, is not a cause of action.d

If the return of the Sheriff be false, he may be fined; or an action will lie against him. An action is the proper mode of trying the truth or falsehood of a return. The Court will not do

so on a motion to set aside the proceedings.f

The plaintiff does not waive his right of action for a false return by accepting money under it. So an action lies against the Sheriff for a false return to a fi. fa., notwithstanding the plaintiff, before commencing the suit, has charged the original defendant in execution, or brought an action on the judgment and obtained a second judgment therein. An executor may bring an action for a false return to a fi. fa. in his testator's lifetime.k

The declaration for a false return, for instance of a nulla bona to `fi. fa., states the judgment, issuing of writ, indorsement, delivery to the defendant [the levy], and false return.1

Not guilty operates as a denial of the wrongful act alleged, that is, of the fact of making the return complained of. It would seem that the quality of the return-its truth or falsehood-is not put in issue by it. To raise that question the matter of inducement viz. that there were goods in the bailiwick whereof, &c., must be denied. In such an action and under a plea denying the levy the Sheriff may go into any matter which tends to show that the money levied was not applicable to the plaintiff's writ, as that the judgment was fraudulent, that the money was exhausted by prior claims, that the execution debtor had lost his property by bankruptcy or the like."

It has already been pointed out how the matters of inducement,

a See exceptions in Vin. Abr. Ret. (0.); 2 Roll. Abr. 462; Dalt. ch. 42; Parker v. Mosse, Cro. Eliz.

b Gyfford v. Woodgate, 11 East. 297; Bridges v. Walford, 6 M. & S. 42; Jackson v. Hill, 10 Ad. & E. 489; Field v. Smith, 2 M. & W. 388; Scarfe v. Hallifax, 7 ib. 291; Standish v. Ross, 3 Exch. 532; Remmett v. Lawrence, 15 Q. B. 1011.

c Dalt. ch. 41.

d Morland v. Leigh, 1 Stark. Rep. 388; vide 16 Q. B. 243.

e Com. Dig. Ret. (E. 2.); Dalt. ch.

Barr v. Satchwell, 2 Str. 813.
& Holmes v. Clifton, 10 Ad. & E.

h Wordall v. Smith, 1 Camp. 332.
i Pitcher v. King, 9 Ad. & E. 288.

[merged small][merged small][merged small][ocr errors][merged small]

the writ, the delivery, levy and return are to be proved if in issue,
and how the Sheriff is to be connected with his officer. If the
judgment be in issue it may be proved by an exemplification or by
an examined copy. It cannot be objected at nisi prius that the
judgment was not revived. Where the Sheriff defends his return
of nulla bona, on the ground that the debtor was the domestic ser-
vant of an ambassador, the execution creditor may show that the
appointment was fraudulent. He may show that the assignment
of the goods before execution was fraudulent; or that the judg-
ment under which the Sheriff justifies applying the goods to other
purposes than the plaintiff's writ was fraudulent, indeed any circum-
stance which shows that in law the goods were liable to plaintiff's
execution. He cannot give in evidence, even in mitigation of da
'mages, an inquisition held by him to inquire into the property of
the goods. As a general rule in this action, admissions, which
would be evidence against the party, will be evidence against the


If there has been no actual loss, still, in the case of final process, Damages. the plaintiff is intitled to nominal damages i



WHEN a person in lawful custody is, in fact, set at liberty, or gets Definition away, or becomes, in contemplation of law, without a keeper, be- of. fore discharge by due course of law, he has escaped.k

As a person may be restrained of his liberty for crime or for a civil matter, escape divides itself accordingly. In the one case, the Sheriff or officer is liable to the Crown, in the other the Sheriff is liable to the subject whose rights are injured by the breach of duty. Nothing but the act of God or the Queen's enemies will Excuse for. excuse it.1

The escape takes place with or without the assent of the keeper, Kinds of. it is, in other words, voluntary or involuntary. When voluntary nothing afterwards can purge it.m When involuntary it may be justified by recaption and the like.n voluntary is deemed to be done negligently.

What is not included under

[blocks in formation]
« PreviousContinue »