a

either void or voidable in point of law on the ground of fraud or otherwise, must be specially pleaded. In an action founded on the Sheriff's return to a fi. fa., as the return is parcel of the record, and nil debet was no plea against a record (though facts were mixed with it,) nunquam indebitatus seems to be no plea to it.

A debt founded on a Sheriff's return is not grounded on any Evidence. lending or contract within the meaning of the 21 Jac. 1, c. 16.o

The receipt of the money, when the Sheriff has made his return, and when he has not done so, must be proved, as laid down in a former page.

The amount of damages will be the sum indorsed on the writ Damages. (if the whole has been levied), or the sum which he has actually received, deducting all legal charges.

a Ibid. r. 8.

b 1 Wms. Saund. 38; 2 ib. 344.

c Jones v. Pope, 1 Wms. Saund. 36.

For Fees.

CHAPTER VII.

ACTIONS BY SHERIFF.

SECTION I.

EX CONTRACTU.

THE Sheriff at common law has no claim for fees which he can
enforce by action. But by several Acts of Parliament and rules
of Court, already cited, compensation has been given him, with
power to levy, over and above the sum recovered by the judgment.
It may be, however, that the fees are not levied; and then the
question arises, what remedy the Sheriff has for recovery of them;
for, to refuse to execute the writ till his fees are paid, is, as we
have seen, after payment, an indictable offence. On the stat. of
28 Eliz. c. 4 (containing no express words as to any remedy for
fees), it was held, that, by implication, a right was given to the
Sheriff to demand the fees mentioned in the statute; and that he
might, as in all cases where a statute creates a debt or duty, main-
tain an action of debt for them.b A like construction, by parity
of reasoning, would also be put upon the 1 Vict. c. 55, and other
statutes which do not, in express words, provide any remedy for
fees.

The Sheriff cannot recover his charges for executing a fi. fa. by action against the attorney in the cause, unless there be special circumstances from which a jury may infer an actual undertaking by the attorney to pay. A Sheriff's officer, who has been employed by an attorney to execute writs for him, may maintain an action against the attorney for the fees usually paid on such occasions. The client is not liable, there being no privity between him and the officer.e

There is nothing in the pleadings or evidence to call for remark.

a Dalt. ch. 119; Woodgate v. Knatchbull, 2 T. R. 148; Dew v. Parsons, 2 B. & A. 562.

b Moore, 853, pl. 1166; Latch. 19; Palm. 400; Tyson v. Parke, 2 Lord Raym. 12, 12; Jayson v. Rash, 1 Salk.

с

Maybery v. Mansfield, 9 Q. B. 754.
d Foster v. Blakelock, 5 B. & C. 328;
Walbank v. Quarterman, 3 C. B. 94;
Maile v. Mann, 2 Exch. 608; sed vide
Seal v. Hudson, 4 D. & L. 760.

e Ibid.

1

SECTION II.

ON SECURITIES FOR MONEY SEIZED UNDER A FI. FA.a

(1 & 2 Vict. c. 110.)

With respect to actions on promissory notes, bills of exchange, &c., seized by the Sheriff under a fi. fa. by virtue of the twelfth section of the above-named statute, it is enacted,

"That by virtue of any writ of fieri facias to be sued out of any superior or Power to inferior Court after the time appointed for the commencement of this Act, or any seize proprecept in pursuance thereof, the Sheriff or other officer having the execution, missory thereof, may and shall seize and take any money or bank notes (whether of the notes, bills, governor and company of the Bank of England, or of any other bank or bankers), &c. and any cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money, belonging to the person against whose effects such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized, or a sufficient part thereof, and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, as a security or securities for the amount by such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised; and may sue in the name of such To sue for Sheriff or other officer for the recovery of the sum or sums secured thereby, if and amount sewhen the time of payment thereof shall have arrived; and that the payment to such cured by Sheriff or other officer by the party liable on any such cheque, bill of exchange, bills of expromissory note, bond, specialty or other security, with or without suit, or the change and recovery and levying execution against the party so liable, shall discharge him to other secuthe extent of such payment or of such recovery and levy in execution as the case rities. may be, from his liability on any such cheque, bill of exchange, promissory note, bond, specialty, or other security, and such Sheriff or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to be levied, together with Sheriff's poundage and expenses, any surplus shall remain in the hands of such Sheriff or other officer, the same shall be paid to the party against whom such writ shall be so issued, provided that no such Sheriff or other officer shall be bound to Proviso as sue any party liable upon any such cheque, bill of exchange, promissory note, bond, to indemspecialty or other security, unless the party suing out such execution shall enter nity to into a bond, with two sufficient sureties, for indemnifying him from all costs and Sheriff. expenses to be incurred in the prosecution of such action, or to which he may become liable in consequence thereof, the expense of such bond to be deducted out of any money to be recovered in such action."

Bond of Indemnity for suing on Bills, &c.

MEN BY THESE PRESENTS that we G. A. of

G. P. of

and

KNOW ALL C. W. of in the county of W. are held and firmly bound to Sir G. M. Bart. of High Sheriff of the said county in the sum of £ to be paid to the said Sir G. M. Bart. or to his certain attorney executors administrators or assigns for which payment to be well and truly made we bind ourselves and each of us our and each of our heirs executors and administrators and every of them jointly and severally firmly by these presents sealed with our seals and dated this &c.

WHEREAS the above-named Sir G. M. Bart. as Sheriff of the county of by virtue of her Majesty's writ of fieri facias to him directed against the goods and chattels of one C. D. issued at the suit of the said G. A. out of her Majesty's Court of Queen's Bench, hath seized and taken in execution a certain promissory note of one J. B.; and whereas the said G. A. hath applied to the said Sheriff and requested

a He ought to sell them; see ante, p. 174.

Pleas.

him to sue the maker of the said note for the recovery of the amount thereof, which the said Sir G. M. Bart. has consented to do upon being indemnified for so doing.

NOW THE CONDITION of the above-written obligation is such that if the abovebounden G. A. G. P. and C. W. or any of them, their or any of their heirs executors or administrators do and shall from time to time and at all times hereafter well and sufficiently indemnify the said G. M. Bart. from all costs and expenses to be incurred in the prosecution of such action or to which he may become liable in consequence thereof, then that the above-written obligation to be void otherwise to stand and remain in full force vigour and effect.

Signed sealed and deli

vered in the presence

of me

In the Queen's Bench.
Westmoreland

Declaration.

The

day of

A.D. 18

to wit.

A. B. Sheriff of the county of W. (the plaintiff in this suit according to the form of the statute in such case made and provided) by J. A. his attorney sues C. D. For that the defendant on &c. by his promissory note now over due promised to pay to one G. B. £ two months after date but did not pay the same: And the plaintiff further says that heretoforea and before the commencement of this suit one G. P. in the Court of our lady the Queen before the Queen herself by the consideration and judgment of the same Court recovered against the said J. B. a certain debt of £ and also costs which in and by the same Court were adjudged to the said G. P. and with his assent whereof the said J. B. was convicted as by the record and proceedings thereof still remaining in the same Court of our lady the Queen before the Queen herself at W. aforesaid will more fully and at large appear: And the plaintiff further saith that the said judgment being in full force and the said sum of £ remaining unpaid and unsatisfied the said G. P. on &c. for the obtaining of satisfaction thereof sued and prosecuted out of the said Court a writ of fieri facias directed to the Sheriff of W. by which said writ our lady the Queen commanded the said Sheriff that of the goods and chattels of the said J. B. in the said Sheriff's bailiwick he should cause to be levied the sum aforesaid and that he should have that money before our said lady the Queen at W. aforesaid immediately after the execution thereof to render to the said G. P. for his debt aforesaid; and that the said Sheriff should have there then that writ which said writ afterwards and before the delivery thereof to the plaintiff as such Sheriff as hereinafter mentioned to wit on &c. was duly indorsed with a direction for the said Sheriff to levy £ besides Sheriff's poundage officer's fees and all other incidental expenses and which said writ so indorsed afterwards and before the said execution thereof to wit on the day and year last aforesaid was delivered to the plaintiff who then and from thence until and at and after the execution of the said writ was and from thence hitherto hath been and still is Sheriff of the said county of W. to be executed iu due form of law by virtue of which said writ the plaintiff as such Sheriff as aforesaid afterwards to wit on the day and year last aforesaid and within his bailiwick as such Sheriff seized and took in execution the said promissory note above-mentioned of all which premises the defendant afterwards to wit on the day and year last aforesaid had notice Yet the defendant hath disregarded his promise and hath not paid the sum of £100 in the said note mentioned or any part thereof to the said J. B. before the same was so seized and taken in execution as aforesaid or to the plaintiff as such Sheriff as aforesaid since the same was so seized and taken in execution: To the damage of the plaintiff as Sheriff as aforesaid of £ and thereupon according to the form of the statute in such case made and provided he brings suit &c.

It would seem that whatever pleas might have been pleaded to

a This probably, according to the usual forms of pleading, should have

G. A. (L. S.)
G. P. (L. S.)
C. W. (L. S.)

preceded, but as a general precedent it will be found more correct.

an action brought upon the instrument by the original creditor may be pleaded herein; add, however, that the defendant may deny any other material averment on the face of the declaration, as the issuing of the writ, seizure, &c. It would seem to be the duty of the Sheriff to present, give notice of dishonour, and the like, except where it is to affect the Crown, which cannot be affected by his laches.

Upon recovery of the amount of the security the Sheriff must How pay over the whole, or so much as will satisfy the debt of the amount of execution creditor; and, if any surplus remain after payment of security to be disposed the debt, together with his poundage and expenses, it must be of. paid over to the party against whom such writ shall be so issued.

SECTION III.

EX DELICTO.

As any one having a special property in goods may bring an action against a wrongdoer, a Sheriff may, with respect to goods seized by him under a fi. fa., maintain an action for any wrong done to them, provided they be at the time in his actual possession.a If he abandon possession, the property and possession revert back to the original owner. b

When the Sheriff returns nulla bona, and there is a recovery against him for his false return, that vests no property in him; it remains as before, and the goods are liable to any subsequent execution for the owner's debt.c

a Wilbraham v. Snow, 2 Wms. Saund. 47 a.; R. v. Eastall, 2 Russ. C. & M. 158, 197.

b Blades v. Arundale, 1 M. & S. 711.

c 2 Vern. 239.