Digitized by Microsp, a z O •< S mA -^ * Q J > ■ = " ^ . i <« .2 C :^ O t O g 5 ' I .^ « g ;2 E I « 2 E Sk O US J 2 O < Q Digitized by Microsoft® KD 7312»l"8"7r"'"-"'"^ * 'inBiiSni.iRl,!'.'!® Offices of hioh sherif 3 1924 021 723 733 DATE DUE ^S Digitized by Microsoft® PRINTED IN U.SA This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archiY,ejgrg(d^tails/gu31924021723733 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® ATKINSON'S SHERIFF LAW. Digitized by Microsoft® Digitized by Microsoft® TEEATISE ON THE OFFICES OF HIGH 8HEK1FF, IINDER8HEBIEF, BAIIHT, &c. mCLTJDINa THEIB DUTIES AT ELECTIONS OF MEMBERS OF PARLIAMENT AND CORONERS; AND AT ASSIZES, SESSIONS, & PAKLIAMENTAEY ELECTION COURTS ; ALSO ON RAILWATf COMPENSATION CASES, AND THE EXECUTION OP WEITS. BY GEORaE ATKINSON, B.A., Oxon. T SEBJEAST-AT-LAW ; ACTING JUDGE OF THE HIGH COURT OF JUDICATURE AT BOMBAY. THE SIXTH EDITION BY RUDOLPH E. MELSHEIMER, B.A., Cams. or THE INNEB TEMPLE, BAERISTEB-AT-LAW. LONDON: HENEY SWEET, 3, CHANCEEY LANE, 1878. Digitized by Microsoft® . LONBON : TMHTBD BT 0. F. EOWOETH, BUEAM'S. BTJItDntQS, OHAHCEEY LAITE. Digitized by Microsoft® TO THE EIGHT HONORABLE SIE FITZEOT KELLY, Knt., LOED CHIEI' BABON OF THE EXCHEQTTER, m, BY PEEMISSION, EESPECTFULLT DEDICATED. Digitized by Microsoft® Digitized by Microsoft® PREFACE. Since the publication of the last edition of this work numerous alterations have taken place in the law and practice connected with the office of SherifE. The Bankruptcy Act, the Debtors Act, the Ballot Act, the Judicatui'e Acts, and the Prison Act, have each in turn rendered obsolete large portions of the text. It has therefore been found necessary to re-write those parts of it ; ' but great care has been taken to preserve, as far as possible, the brevity of style of the earlier editions, and to refrain from corrections, except in cases where the materials could not have been before the learned Author. The work still remains cumbered with the treatment of some practically obsolete subjects, such as Outlawry. So long, however, as the law allows such proceedings to be taken, the book would be. incomplete without some notice of them. The Editor feels conscious that in dealing theo- retically with a subject so eminently practical there is great danger of inaccuracy: This has, however, been Digitized by Microsoft® VUl PEKFACE. greatly lessened by the courtesy of various gentlemen who have lent the assistance of their practical experience as TJndersherifEs, and in the Ofl&ces of Writs, of Audit of Sheriffs' Accounts, and of the Queen's Eemembrancer — ^the sections relating to the latter two subjects having, in fact, been revised by Mr. Pike and Mr. Hankin respectively. To all these gentlemen the Editor takes this opportunity of expressing his obligations. E. E. M. 2, Haeoouet BuiLDnras, Temple, Kovemher, 1877. Digitized by Microsoft® CONTENTS. CHAPTEE I. PAOE 1. Greneral Observations 1 2. Qualification of High Sheriff 10 3. Nomination of High Sheriff U 4. Appointment of High Sheriff 18 5. Appointment of TJnder-Sheriff 23 6. Deputies in Iiondon 2S 7. Bailiffs 29 8. Gaolers , 36 CHAPTEE n. JuDIOIAli DtlTIES . . . , 38 1. Common Law County Court 38 2. Court for the Election of Coroner 44 3. Court under Writ of Inquiry 54 4. Compensation Court 60 CHAPTEE m. MnnsTEEiAi. Duties 74 1. Jury 74 2. Assizes 88 3. Executions (Criminal) 89 4. Parliamentary Elections ' 96 5. Parliamentary Election Court 140 6. Posse Comitatus 142 7. Crown Bailiff 147 CHAPTEE IT. Wbits or Execution 150 1. Interpleader 150 2. Judgments 163 3. Execution 169 4. Eieii facias 177 Digitized by Microsoft® X CONTENTS. PAOB 8. Elegit 210 6. Levari facias 222 7. De Nooumento amovendo 222 8. Attachment, and Ca. sa 223 9. Capias TJtlagatum 236 10. Writ of Possession.' 239 11. Writ of Delivery 244 12. Extent 246 OHAPTEE V. Execution of othee Weiis 257 1. Orders of Arrest 257 2. Ne exeat Eegno 260 3. Orders of Conunittal 262 4. De Ventre inspioiendo 264 5. Venire , 265 CHAPTEE VI. Sheecffs' Ebes akd Aocoxraixs 267 1. Sheriffs' Fees 267 2. Sheriffs' Accounts 279 CHAPTEE Vn. EEMEnrES AGAINST THE ShEEIFP 287 1. By Indictment 287 2. By Attachment 288 3. By Action 293 4. Wrongful Execution 303 5. Ealae Eetum 312 6. Negligence 317 7. Money Claims 323 8. Eemoving vrithout Paying Eent 329 CHAPTEE "Vm. Actions by the Sheeief 335 Index 340 Digitized by Microsoft® TABLE OF CASES CITED. A. PA(JE Atbott V. Eichards 151, 157 Ackworth v. Kempe . . 295, 303 Adams v. Osbaldestou 34 Aireton v. Davis 318 Alohin V. WeUs 200, 201 Aldred v. Constable .... 189, 194 Alworth V. Hutchinson .... 238 Ames V. Waterlow 231 Anderson v. Callo-way 163 ■ V. Davenport .... 33 Andrews v. Dixon 330 Angell V. Hadden 152 Angerstein v. ChaUis 333 Angus V. Wootton 156 Arden v. Goodacre 289, 292 Armitage v. Foster 160, 161 Amitt v: Gamett 330 Arnold, Ex parte 188 Ash V. Dawnay 194, 303 Ashby V. White 96 Ashworth v. Outram 183 Att.-Gen. V. Dafkin .... 191, 226 »■. Sewell 246 Ayre v. Aden 194 Ayshford v. Murray 195 B. Baddeley, Ex parte 63 Balls V. Metropolitan Board of Works 66 Bahne v. Hntton 308 Balson V. Meggatt 33 Barclay, Ex parte 186 Barker v. Dynes 152, 163 V. St. Quiutin . . 198, 208 Bam V. Satohwell 315 Barratt». Price 321 PAGE Barshamv. BuUock 299, 310, 330 Bartlett v. Peutland 196 Barton «. Gill 207 — V. Sutton 321 Bayley J). Potts 200 Beale v. Overton 155 Beckett v. Midland Ey. Co. . 70 Belcher v. Patten 158, 184 Bennett v. Thompson 275 Bentley v. Hook 152 Benton v. Sutton 319 Benyon v. Jones 233 Bemal v. Donnegal 261 Berry v. Adamson 227 Beswick v. Thomas 159 Blades v. Arundale ' 194, 336 Blake i). Newbum 326 Blake's case 59 Bland v. Delano 159, 161 Blatch V. Archer 227 Bolton V. Bolton 174, 178 Bond i>. WoodhaU 155 Bonomi v. Backhouse 59 Boothman*;. Surrey 8, 34, 36, 211 Botten V. TonJinson 324 Bowdler v. Smith .... 157, 159 Bowring v. Pritchard 34i Bowsher ». Galley 299 Braokenbury v. Lawrie 153, 175 Bradley i>. Copley 307' Bragg V. Hopkins 153 Braine v. Hunt 156 Braithvfaite v. Marriott 272 Branddge v. Adshead 157 Brand i>. Hammersmith Ey. Co 69, 70 Brandling v. Barrington .... 331 Brandon's cafe 69 Brewer v. Jones 278, 336 BrickeU v. Hulse 300 Digitized by Microsoft® TABLE OF CASES CITED. PAQE Bridge V. Cage . ; 278 Bridges V. WaHord .... 315, 336. Briggs V. Sowton 24 ' Brinsmead v. Hamson .... 245 Bromage v. Vaughan .' 205 Brooke, Ex parte 204 Brown v. Copley 32, 294, 295 V. G-lenn 191 V. Jarvis 175, 318 V. Watson 174, 301 Bro-wniug v. Sabin 225 Bruu V. Hutchinson 201 Brune v. Thompson 4 Brunker, Ex parte 260 Brunswick v. Sloman 192 Bryant, In re 198, 303 Buccleuch, Duke of, v. Me- tropolitan Board of Works 70 Buckland ii. Butterfield 179 Buckle V. Bewes 312 BuUen v. Ansley 201 Bullock 41. Dodds 237 Burdett v. Ahhott 192 Burdon v. Kennedy 184 C. Callans v. Sherry 230 Calvert v. JolifEe 334 Cameron v. Lightfoot. . 228, 231 Candy «. Maugham 154 Capper, Ex parte 57 Came v. Brice 158, 182 Carr v. Edwards , 159, 160 Carrett v. Smallpage. . 8, 34, 226 Cashert v. Att.-Gen 251 Cater v. Chignell 151 Cavenagh «. CoUett 315 Cetti V. Bartlett 162 Chamhers v. Coleman 207 Chapman v. Bowlby 201 V. Speller 195 Chase.w. Goble 158 Cheston v. Gibbs 174 Chick V. Smith 175 Chilton V. Charrington .... 245 Christie v. Winnington 188 Christopherson v. Burton 189, 190 Claridge v. Collins 153 Clarke v. Chetwode 160 V. Lord 156, 159 PAOE Clarke v. Nicholson 308 Clementson v. Mason 132 Clerk V. Withers . . 207, 302, 315 Clifton V. Hooper 175, 320, 322 Clutterbuck v. HuUb . . 228, 229 Cobham v. Dalton 223 Cocker v. Musgrove . . 205, 206, 219, 333 CoUingridge v. Paxton 180 CoUins, Ex parte 186 Colls V. Coates 201 Collyer v. Speer . . 330, 331, 333 ColviUe, Ex parte 14 Connor v. West 240 Contant v. Chapman 321 Cook t>. AUen 155 V. Hartle 308 ■y. Hemming 180 Cooke V. Birt 191, 192 Coole V. Braham 301, 316 Cooper V. Asprey 153 • — V. Chitty 305 V. Hill 271 Copland v. Powell 302 Corpe V. Glyu 196 Corrigall v. L. & B. Ey. Co. 71, 72 Cowbridge Ey. Co., In re . . 166 Cox V. Balue 154 i). Fenn 160 V. Leigh 332 Crawley ». Lidgent 218 Crawshay v. Thornton 151 Croft ». L. & N. W. Ey. Co. 59 Crowder v. Long 294, 299, 336 Crump V. Day 154, 155 Curlewis v. Bird 269 Curtis V. Mayne 201, 278 Cusel V. Pariente 162 D. Dale V. Birch 323, 328 Daniels v. Gompertz 312 Darby v. Wateriow 198 Da-ridson v. Seymour 294 Daviesr. Edmonds 200, 201, 331 Davis V. Oswell 309 V. Eendlesham 230 Day V. Carr 153 V. Waldook 153 Digitized by Microsoft® TABLE OF CASES CITED. PAOB Deere, In re 228, 233 De la Vega v. Viaima 229 DeUer v. Priokett 158 Delvalle v. Plomer 316 De Medina «. Grove 175 De Mesnil v. Daldn 175, 306 Dennis Ji.Wlietham 189,190,205 Derby W.Smith 182 Dew V. Paxsons 335 Dewey v. Bayntun 316 Dewhirrst v. Pearson 310 Deybel's case 4 D'Eynoourt v. Gregory 184 Dioas V. Brougham 287 Dick V. Swinton 260 Dicker v. Adams 56 Dighy i>. Stirling 230 Dillon «!. Cunningham. . 228, 230 Dixon V. Smith 331 Dod V. Saxby 331 Dodds V. Shepherd 158 Doe d. Bowley v. Barnes . . 299 V. Donston 194 (?. Hughes ». Jones .. 197 d. James v. Brown .... 299 d. Lloyd V. Eoe 242 d. Phillips V. Evans . . 184 d. Pitcher i). Eoe 242 d. Stevens v. Donston. . 180 «>. Thorn 198 Donne's case 261 Douglas, In re 228 Dovaston u. Payne 314 Drake v. Sykes . .'. . 32, 296, 299 Ex parte . . : 245 Drewe v. Lainson 189, 205 Duddin v. Long 154 Duignan, Ex parte 203 Dumergue i>. Rumsey 179 Duncan v. Cashin 183 Duperoy v. Johnson 66 Dutton V. Eumiss 153 Dyer v. Disney 228 Dyke v. Aldridge 152 V. Duke 318 E. Eaglew.CharingCrossRy.Co. 70 Edwards v. Bridges 183 «;. Edwards .. 184,186 IPAOE Edwards, Ex parte 61 Eggiagton's case 226 EUiott V. Kemp 307 Elwes V. Mawe 179 Evaiis V. Atkins 310 V. Bear 224 Ex parte 325 11. HaUam ^ 188 V. WiUs 263 Eveleigh v. Salsbury 159 Ewin's case 246 Farr v. Newman 180, 182 Farrant i). Thompson 184 Faulkner «. Chevell 24 Fenny ». Dnrrant 221 Fenwicki). Layoook 151,154,182 Fermor v. Phillips 297 Field V. Smith 315 Fisher v. Begrez 182 V. Magnay 305 Fitzhardinge ». G. & B. Canal Co 67 Fitz.'s case 21 FUght V. Cook 229 Floyd V. Bethill 241 Foley 11. Addenbrooke 179 Ford V. Baynton 152 a.Dflly 157 V. Leche 33 Forrester's case 227 Forster v. Cookson 332 Foster v. Blakelook 278 — ■!). Hilton 333 Fotherby's case 63 Fouldes V. WiUoughby 307 France v. Campbell 185 Francis v. Neave 298 Freeman v. Jeffries 336 G. Gale, In re 234 Garland v. Carlisle 308 Gawler v. Chaplin 194 Gibbon v. Coggon 318 Giles V. Grover . . 167, 168, 195, 246, 251, 254, 324 Digitized by Microsoft® TABLE OP CASES CITED. PAOE Gilpin V. Beniamin 230 Gladstone v. Tadwiok. . 188, 192 Glasspole v. Young 183, 184 Glossop V. Pole. 199, 316 Goddard v. Harris 229 Godson V. Sanctuary 17S Goodman v. Sayers 261 Goodyere v. Inoe 212 Gordon v. Harper 307 V. Laurie 310 Gore V. Goaton 201, 331 Goudy V. Dunoombe 227 Graham i!. Grill 201, 239 V. Sandrinelli 231 i>. Witherby 189 Grant i>. Bryant 238 Gray v. N. "E. Ey. Co 67 Great Ship Co., Parry's case 197 Greaves v. De Castro 331 Green v. Austin 328 1). BroTTO 153 B. Price S5 Greening v. Wilkinson .... 308 Gregory v. Slowman . . 204, 307 Grissell, Ex parte 218 Groves v. Cowham 174 Gaest V. Cowbridge Ey. Co. 213 GwiUiam v. Barker 331 GyjEEord v. Woodgate 315 H. Hadley v. Baxendale 58 Hall V. Roche 28 Hamilton v. Dalziel 29 Hare v. Hyde 226, 230 Harley v. Harley 198 Harris v. Booker 217 V. Lloyd 28 Harrison v. Barry 331 V. Evans 11 ■ ■ V. Hodgson 226 1: Paynter 21, 185, 327 V. Timmins 196 Harvey v. Dakin 228 V. Hall 225 V. O'Meara 236 Hatton V. Haywood 167 Hayne's case 62 Haythom v. Bush 154 Hayward's case .-. 66 PACE Heenan r. Evans 189, 205 Hereford v. M'Namara .... 175 Hermitage v. Kilpiu 263 Herries v. Jamieson ...... 173 Hescott's ease 278, 325 Hill V. Middlesex, Sheriff of 297 Hinchett v. Kimpson 330 Hobson».Thelluson 188,302,317 Hodgson r. Gascoigne 332 Hoe's case 198 Holdroid v. LiddeU 320 HolUer v. Laurie 151 Holmes v. Clifton 315 V. Meutze 152, 154 V. Sparkes 326 Holioyd V. Breare 294 Holt V. Frost 154 Holton «i. Guntrip 153 Hooper v. Lane . . 174, 176, 232, 318, 321 Hooson, Ex parte 224 Hope, Ee 224 Hopman v. Barber 278 Horton v. Devon 153 HosMns V. Knight 331 Howard «>. Cauty.. 189, 198, 208 Howden v. Eogers 261 ». Standish 175 Howes V. Turner 113 J). Toung 199, 203 Hudson V. Tooth 234 HuU V. Greenhill 217 Hume V. Druyfi 259 Hunt V. Hooper 168, 208 Hunter v. City of Glasgow Ky. Co 70 Hutchison v. Birch 191 I. Ibbotson V. Chandler 156 Lnray v. Magnay 189, 190 Inland r. BusheU 153 Izod V. Lamb 182 Jackson v. HiU 34, 211, 315 r. Mawby 233 Jacobs r. Humphrey . . 300, 318 Digitized by Microsoft® TABLE OF OASES OITKD. XV PAGE Jameson, Ex parte .... 168, 193 Jaques v. CsEsar 321 Jarmaiu v. Hooper 185, 305, 306 V. ■WoUaaton 182 Jay, Ex parte 187 Jayson v. Rash 335 Jefieries v. Sheppard 328 Johnson V. Evans 195, 196 V. Leigh 191 Jones, Ex parte 168 «. Lewis 159 V. WiUiams 23 V. "Wood 297, 298 Jordan v. Bincks 21 E. Kearney v. Ryan 195 Keene v. Dilke 183, 307 Keightley v. Birch 194, 195 Kelsey i). Hilder 195 Kemble v. Earren 67 Kempland v. Maoauley .... 301 King V. Birch 158 V. Simmonda 158 BoBgsdale v. Maim 242 Kirk V. Clark 156 Knight «>. Griddle 185 L. L. &G. Ey. Co., In re .... 71 Lambe v. Wiseman 313 Lane v. Chapman 321 Laxwood's case 11 Lawton v. Lawton 179 Layoook's case 27, 287, 294 Lee ». Uansel 191, 192 Legg V. Evans 178, 185 Letohmere v. Thoroivgood . . 184 Letsom v. BioMey 7, 72 Levi V. Abbott 198, 208 Levy v. Hale 317 Lewis, Ex parte 187 V. Holding 160 11. Jones 153 V. Rogers 304 Lloyd V. Davies 217 ■ V. Harrison 231 V. Roe 242 PAGE Lookley v. Pye 307 London & Devon Biscuit Co., In re 196 Lovell V. London, Sheriffs of 311 Loviok V. Crowder 184 Lnard v. Butcher 158 Luckin v. Simpson ' 158 Luntly V. Nathaniel 228 Lyster v. DoUand 184 M. M'CarthyD.M:et.Bd.ofWks. 70 Macrae v. Clarke 317 M'Taggart ff.Wedderbiim. . 42 Magnay «. Burt 8, 231 MaUe w.Mann 278 Manning's case 198 Marks v. Ridgway 162 Marshall v. Hicks 272 Marshalsea case 174 Martin v. BeU 297, 298 Martindale i>. Booth 304 Mason v. Paynter 175, 240 -0. Redshaw 156 Masters i>. Lowther 272, 275 ■ V. Stanley 185 Mather v. Brown 115 Mayberry v. Mansfield 278, 335 Mayhew V. Merrick. . . . 195, 196 Meekins v. Smith 228 Melan v. D. de Ktzjames . . 229 Meredith v. Rogers 161 Merest ». Harvey 58 Messenger «. Clarke 182 Metoalf V. Soholey 184 Middleton«!. Chichester 223,224 MLldmay v. Smith 302 Miles V. Harris 201 MiushaU v. Lloyd 297 Montague v. Harrison 229 Moon V. Raphael 298, 309 Morgans v. Bridges 260, 297, 305 Morland v. Leigh 313 V. Pellatt 323 Morley v. Attenborough 195 Morris J). Burdett 135 V. Jones 221 Morrish i). Murrey ........ 191 Mullett V. Chalhs 195 Digitized by Microsoft® TABLE OF CASES CITED. PAGE , 205 . 154, 155, 180 Miink V. Cass . . . Mutton V. Toung . N. Nash V. AUeil 219, 243 V. Dickenson 193, 200 Ne-sroastle, Duke of, Ee 184 > w.Moiris 227 Newland v. Clifie. . 8, 33, 34, 36 Newton ». Constable 228,229,231 V. Harland 217, 228 Nias V. Davis 320 Norman v. Villars 182 North V. Mills 300 North Staffordshire Ey. Co., In re 197 Norton v. Walker 231 Norwich, M. of, v. Berry. . 11, 12 Notley V. Buck 327 0. O'Brien v. Brodie 187 Oriental Fin. Cor., Ex parte 163 Ostler V. Bower 153, 154 Oughton V. Seppings 328 Oxfordshire, Sheriff of. In re 169 P. Padfield v. Brine 185 Palgrave v. Wyndham 330 PaUister v. Pallister 33 Palmer's case 180 Pariente v. Pennell 162 Parker v. Kett 27 ■ ». Moor 226 • V. Mosse 315 Parrott v. Mnmf ord 295 Pate V. Eoe 24Z Patomi V. Campbell . . 153, 154 Penn v. Soholey 304 Pennell v. Stephens 188 Pennoir v. Brace 174 Penton v. Browne 191 Peroival v. Stamp 192 Peshall V. Layton 294, 311 Pewtress v. Annan 175 FAQE Phillips V. Bacon 195, 318 -W.Canterbury 200,272,326 V. Earner 304 V. Pound 228 Pickering v. James 121, 122 Pike V. Stephens 188 PiUrington v. Cooke 268, 326 Pitcher v. King 294, 316 Pitt V. Coombes 228 Playfair v. Musgrove . . 194, 197, 304 Plevin V. Prince 326 Poole's case 179 Porter i>. Viner 33 Posteme v. Hanson 311 Powell V. Lock 156 Prentice v. Harrison 301 Price V. HoUis 219 V. WiUianiB 55 Proctor V. Lainson 300 Pryoe v. Belcher 96 Pugh V. Griffith 192 Q. Quick v.. Staines 182 R. E. V. Adams 251 — V. Antrobus 91, 287 — V. Armstrong 238 — V. Arnold 167 — V. Austen 255 — V. Bennison 250 — V. Berkley 72 — V. BicMey 252 — V. Bingham 246 ■ — V. Blake 229 — V. Brown 71 — V. Collingridge ' 248 — V. Cotton 251 — V. De Caux 331 — V. Devon, Sheriff of 235 — V. Diplock 52, 53 — V. Dugger 234 — V. Dunn 313 — r. Eastall 333 — r. Edwards 174, 175 — V. Eyre 234 Digitized by Microsoft® TABLE OE CASES CITED. SVU PAOB R. V. Fowler 234 — ('. Frost 77 — ». Gardner 64 — V. Hertford 157 — V. Hind 238 — V. Humphrey 251 — V. Jaram 36 — - r. Kinnear 250 — V. Larking 252 — V. Lee 251 — V. Leicestershire, SherifE of 289 — t). L. & N. "W. Ey. Co. . . 63 — V. Lushington 251 — V. Maherley 247 — V. Manchester, &o. Ey. Co 69 — V. Mares 252 — V. Mead 34 — V. Middlesex, Sherifi of. . 21, 291 — V. Monmouth, Sheriff of . 315 — V. K. & W. Eoad, Trus- tees of 71 — V. Peel 246 — V. Pratt 224 — r. Quash 252 — V. Eentou 174, 247, 250 — V. Eobinson 201 — V. Eyle 246, 249, 252 — V. Seton 250 — V. Shackle 246 — V. St. K. Dock Co 196 — V. Stubbs 10, 226 — »). Ward 251 — I'. Warwickshire, Sheriff of 63 — V. Webb ... ' 179 — V. Wilts, Sheriff of 315 — V. TandeU 41 Ramsay v. Eaton 188 EandaU v. Gumey 229 EandeU v. Wheble 175 Eaphael v. Goodman . . 294, 299 Rateliffe v. Burton 192 Rawstome i;. Wilkinson ... . 201 Read's case 11 Reeves v. Slater 1 74 Eeiiu. Poyntz 299, 330 Eemmett v. Lawrence. . 189, 190, 302, 315 Reya, Ex parte 204 A. PAOB Reynolds v. Adams 238 V. Barford ...... 314 Eichardson «. S. B. Ry. Co. 67 Ricket V. Metrop. Ry. Co. . . 69 Ridler v. Punter 217 Ripley v. G. N. Ry. Co. . . 71 Riseley v. Eyle . . . .219, 330, 332 Roberts v. Parry 220, 221 Robinson v. Yewens 321 Eooke, Ex parte 168, 193 Roe V. Dawson 242 «. Hammond 200, 275 Rogers v. Jones 319 . V. Keunay 178, 185 Eoret V. Lewis 175 Eush, In re 224 Russell V. E. A. Co 184 Ruston V. Hatfield 328 Rutland's case 309 RyaU V. Rowley 180 Ryan v. Shilcock 191, 192 S. St. John's College 1). Murcott 331 Samuel v. Buller 175, 233 Saunders v. Musgrave 331 Sawle V. Paynter 29 Scales V. Sargeson 161 Scarfe v. Halifax 315, 327 Schulte, Ex parte 187 Scott V. Lewis 153 V. Marshall 298 V. Soholey 184 Seal V. Hudson 278 Seaward v. WiUiams 160 Selby «. HiUs 229 Semayne's case 191, 192, 212 Sharp v. Key 216 Shattook f . Carden 189, 205 Shepherd o. Wheeble 297 Sherwood d. Clark 174, 220 Shingler v. Holt 158 Shirley 4'. Wright 321 Silk V. Humphi'ey 310 Sim V. Marryatt 195 Simmons v. Edwards 182 Simpson v. Eenton 310 Sims, Ex parte .... 199, 203, 272 Slater v. Hames 200, 268 -V. Pinder 168, 193 Smalloombe v. Olivier 205 b Digitized by Microsoft® TABLE OF CASES CITED< PAOE Smallman v. Pollard 333 Smart v. Hutton 294, 295 Smitli, In re 224 i>. Egginton 306 V. Pritoliard 293, 294 — ^ V. Sydney 301 Sueary i>. Abdy . .202, 204, 278 Snowball i>. Goodricke . . 32, 300 Sobey v. Sobey 261 South, In re 216 Spooner, Ex parte 204 Spiy's case 229 Standish v. Eoss 315, 336 Stimson*. Eamham ..302, 315, 316 Stock V. Holland 204 Stockdale v. Hansard 55 StofPel, Ex parte 237 Stonehouse v. Eyen 219 Stones V. Menhem 80, 82 Story V. Birmingham 230 Street v. Street 261 Strong V. Dickenson 228 Stroud 1). Watts 313 Sturmy v. Smith 294 Swain v. Morland 324 T. Taplin v. Atty 297 Tarlton i>. Eisher 231 Taylor v. Lanyou 332 V. Richardson 29 ■ V. Warrington 275 Tealby v. Gascoigne 298 Teggin v. Langford 155, 159 Temple, Ex parte 250 Theaker's case 264 Thomag v. Desanges 175 V. Hudson 174 Thompson v. Eardeu 7 • In re •. 232 ■ i>. Mirehouse .... 242 Thomson v. Moore 229 Thornton v. Einch 166 Thurgood i>. Richardson 331 Thurston v. MiUs 323 Tomlinson v. Shynn 328 Trimbey v. Vignier 229 Tugman «i. Hopkins 182 Twyne's case 304 lesson V. Parke 335 U. PAOE Underden v. Burgess 160 Univ. Disinfector Co., In re 197 Upton ». Wells 242 1). Witherwick 243 V. Valpy D. Manley 327 Villars, Ex parte 193, 203 Viveash v. Becker 227 Volet r. Waters 41 W. Walbank v. Quarterman . . 278 Walker v. Hunter 198 V. L. & B. Ry. Co. . . 6S Walsal V. Heath 216 Walters «■. Rees 229 Warmoll v. Young 316 Watkins, Ex parte 228 Webb V. Taylor 229 Webber v. Hutchins 174 Webster r. Delafield 156 Wells r. Kilpin 166 Wesley r'. Skinner . .'. 21 Westby's case 21 Westmorland t. Smith 180 Wharton «!.Naylor. . 180, 184,332 White r. Chappie 17'> V. Haugh 27!S V. Morris . . 299, 301, 304 Whitehouse r. Atkinson .... 309 T. EeUows 59 *. Partridge . . 261 Wilke's case 5 Wilkinson v. Rooklas 238 Wmett V. Spaj-row 314 Williams, Ex parte 167 V. Bridges 301, 316 r. Gary 31G r. Ci'ossling 158 r. Lewsey 331 WiUies r. Farley 304 Willoughby's case 264 Willows r. Ball 18.5 Wills r. Hopkins 161 Wilson I'.. Boswell 261 Digitized by Microsoft® TAJ3LE OF CASES CITED. XIX PAGE Wilaon v. Law 314 Winn V. Ingleby 18i Winter v. Miles 205 Wintle V. Chetwynd 207 V. Freeman. . 189, 208, 314 Wood V. Wood 185 Wooddye v. Coles 203, 328 Woodgate v. KnatohbuE . . 287, 294, 325, 326, 335 Woodhouse's case 62 Woodland v. Puller 28 Woods V. Knnis . . 204, 295, 321 WooUey r. Clark 301 PAOE WordaU r. Smith 316 Wormwell v. Hailstone .... 196 WorralWatrwks.Co.iJ.Lloyd 213 Wright V. Child 33 V. Lord Vemey 152 Wrightup V. areenaore .. 268, 326 Wylie V. Birch 317 Y. • York !'. Twine 180 Digitized by Microsoft® EEEATA AND ADDENDA. Page 5, note I, for " 30 " read " 39." 29, delete "Cornwall." In Cumberland, process is stiU executed by seal-keepers. 40, note 7. This applies to mesne process only. 41, line 5, for "an order of arrest or attachment" read "a ca. sa. or oa. resp." 131, note l,for "V." read "VII." 183, note 3. AsMvorth v. Outram is reported in 5 Ch. D. 923. Digitized by Microsoft® OP THE OFFICE OF SHERIFF. CHAPTEE THE FIEST. Section I. In England, there are many good institutions, wtose Origin, beginnings, like the sources of some great rivers, seem to baffle discovery. The office of sheriff is one of the kind. We are able to trace its course, with precision, for a thousand years, or thereabouts ; but, after that, we begin to lose sight of it: and it gradu- ally disappears amid the haze that overspread the land upon the decline and fall of the Eoman empire. Before the reign of King Alfred, indeed, as we read in the laws of King Ida [a.d. 688], there were portions of the land known as counties; which the counts or earls had in charge. We also meet, at a very early period, with the words shires and shire- reves ; but, there is good reason to believe, that such counties or scyrs were, before the time of King Alfred, mere detached districts of land of a peculiar tenure,' and not defined geographical portions of the ' E. g. Seveland, wliich was of allodial tenure. See Dal- rymple's Feudal System, p. 11. A. B Digitized by Microsoft® GENERAL OBSEEVATIOlfS. King Alfred's division of the reeilm. Count and yiscotint. kingdom, as they did, in fact, become in his reign, and as they have remained ever since. Be that as it may, it is clear, that, in the reign of that wise prince [a.d. 872], great and fundamental changes were made in the re-distrihution, or, as Sijc E. Coke ex- presses it, in the "more certain division," of England into parts, for the better administration of justice. The arrangement then made has, virtually, continued to this our day. The parts or portions into which the kingdom was then, and into which it is stiU divided, are called counties or shires. They are convertible terms : the one being derived from the French, and the other from the Saxon language. If we are right in saying that the words were, before the final settlement, applied to lands of a peculiar tenure, and not to a defined geographical portion of the realm, the appli- cation of them to a new state of things was not strictty correct; but many instances may be found, in our own times, of old names being transferred to new things, even by the legislature itself. The Countj^ Court Act 1846 afiiords an instance. Now, there is good reason to believe that as soon as the new counties or shires were defined, and the vice-comes was charged with the custody of them, instead of the comes, the old names readily adapted themselves to the new state of things. This is probable ; for they differed not so much in kind as in degree. The present division of the principality of "Wales into twelve shires did not take place until the year 1542 (34 & 35 Hen. 8, c. 26). It is not unworthy of remark, that the count was called in Latin comes, and that the officer, to whose custody the county was committed, by King Alfred's policy, was styled vice-comes., From this circum- stance some have been led to say, that the comes Digitized by Microsoft® GENEEAi OBSEETATIONS. appointed the vice-comes; in. other Tvords, that the latter derived his authority from the comes, and was mere deputy to him. There is, we think, little or no foundation for their idea. "We have no hesitation in saying, that the vice-comes never derived any of his authority from the comes. From the reign of King Alfred to the present time, he has ever been, as he is now, appointed by the chief of the executive power in the state. Before the 9 Edw. 2, st. 2, as we shall presently see,' three persons weie chosen by the inhabitants of the counties, ex qtiibus rex unimi confirmabat : and the 28 Edw. 3, c. 10, also, ordained that they should be elected by the freeholders of the county ; but this is not, in any way, at variance with the proposition — that he has always derived his authority from the crown ; for, although chosen by others, he was ever appointed by the crown. Until the Magna Charta [a.d. 1215] the sheriff held J"^^"^ pleas of the crown ; but, impaired as his powers were by that statute, he retained, and stUl retains, a great part of his primary dignity; as may be seen partly Digmty- in this, namely, that he has a right of precedence, within his county, of every nobleman, during the time that he is in office. He is, also, a grand Con- servator of the Peace. Hence (as Sir E. Coke says) "the high sheriff (vice-comes) is an officer of great antiquity, and of great trust and authority, having from the queen the custody, keeping, command and government, in some sort, of the whole county committed to his charge and care." 4.nd from the same high source of authority we know that he has a threefold custody, viz. vitse 1 Sect. III. b2 Digitized by Microsoft® GENEEAL OBSEEVATIOliTS. County and shire. QuUleta. iustitise (for he is to return indifferent jtuies for tte trial of men's lives, liberties, lands, and goods) ; vitse legis (for lie is, after suit, chargeable to make exe- cution : -whidh is the life and fruit of the law) ; and vitse reipublicsB (for he is principal Conservator Pacis within the county: which is the life of the Common- wealth).' In these different characters he will appear in the course of the present work. A few preliminary remarks wOl, however, simplify the m.atter. A shire or county is one of those several parts iuto which the realm is divided: for the better govern- ment of it, and the more easy administration of justice. Besides this general division of England and Wales into shires or counties, they are, of themselves, sub- divided for many, especially for electoral, purposes ; as win be seen when we come to speak, more par- ticularly, of "The Eepresentation of the People Act, 1867" (30 & 31 Yict. e. 102), and "The Boundary Act, 1868 " (31 & 32 Tict. c. 46). Some critics make a distinction and say — such are shires which take their denomination from some principal- town, as Cambridgeshire, Oxfordshire, and the like ; whilst the rest, not bearing the name of any town, are to be reputed counties, as Norfolk, Suffolk, and the Hke. But, iu Wales, we meet with Merionethshire and Glamorganshire, and no towns so termed ; Devonshire shows that there is nothing whatever but fancy in this idea. Of the division of the realm into counties all Courts of justice take official notice.^ There is no part of the kingdom that is not in some county.' There are, indeed, certain districts which > Co. Litt. 168. ^ Deybel's case, 4 B. & A. 243 ; and see Brum v. Thomp- son, 2 Q. B. 790. ^ Fort. c. xxiv. ; Jenk. Eep. Ca. 7. Digitized by Microsoft® GENERAL OBSERVATION'S. are parcel of one county, and yet lie, in fact, witlin tlie boundaries of another ; these districts are called quillets ; and they were, untO. a late period, produc- tive of inconvenience in the execution of writs from the superior Courts, by reason of their locality. But this has been remedied by the legislature ; ^ and they now, for nearly all purposes, form part of that county by which they are surrounded. Again, it is declared by "The Boundary Act, 1868" (31 & 32 Vict. c. 46), that " where any county, divi- sion of a county, or borough, abuts on the sea coast, or on any tidal river, the boundaries of such county, &c. shall, for all purposes relating to the election of a member or members to serve in parliament, be deemed to extend to the low-water mark." In former times, one and the same sheriff often had more coimties than one under his charge. The sheriff of Cambridgeshire is, at this day, sheriff of the counties of Cambridge and Huntingdon. The sheriffs of the city of London have also in charge the county of Middlesex.^- Sussex and Surrey were separated in 1667, re-united under the same sheriff in 1571, and again separated in 1636. England and "Wales are divided into fifty-two counties or shires ; the former into forty and the latter into twelve.^ Durham, Lancaster, and Chester, are counties Counties palatine. Middlesex is held in perpetual fee farm by the mayor and commonalty and citizens of London. Durham was a county palatine, by prescription, in the Bishop of Durham. It is now, by the 6 & 7 Will. 4, e. 19, held by her Majesty the Queen, as a franchise 1866 2^111.4,0.30,8.20; ^866 1 Camd. Brit. 344 2 & 3 Viet. c. 93 ; 7 & 8 Vict. (6dit. Gibson), Willies' case, 0. 61 ; 7 & 8 Vict. c. 92; 21 & 4 Burr. 2560. 22 Vict. c. 68. 3 34 & 35 Hen. 8, o. 26. Digitized by Microsoft® GEIJEEAIi OBSEEVATIONS. and royalty separate from tlie crown.' Lancashire, on the attainder of Henry YI. (1 Edw. 4), hecame ■ forfeited; and was then, hy Act of Parliament, vested in King Edward the Fourth, and his heirs — kings of England for ever : but under a separate guiding and governance from the other inheritances of the crown.'* By the 11 Geo. 4 & 1 Will. 4, the power, autho- rity, and jurisdiction of the Court of Session of the county palatine of Chester and of the judges thereof, and of the Court of Exchequer there, and of the chamberlain and vice-chamberlain thereof, and also of the judges and Courts of Great Sessions, both in law and equity, in the principality of "Wales, ceased and determined ; and the jurisdiction of the Courts at Westminster was, instead, extended to them. restmore- From the year 1202 to 1850, Westmoreland was held ia perpetual fee farm by a subject, as Middlesex now is. It was, after the death of the late Henry, Earl of Thanet, and consequent extinction of the title, that the appointment to the o£Glce of high sheriff was vested in the crown.' Vorcester. The sheriffwick of Worcester, formerly held in fee by the Earl of Warwick, was forfeited ia 1398.* eadiesex. Middlesex was, by a charter of Henry the First (con- firmed by King John), vested, in fee, in the mayor and commonalty and citizens of the city of London : upon condition of their paying 300Z. a year to the Exchequer. By an act of common council, dated 7th of April, 1748, it is ordered (amongst other things), " That henceforth the right of electing per- sons to the said offices of sheriffalty shall be, and the same is, hereby vested in the liverymen of the several companies of this city." In Yanacre's case ' See Braoton, lib. iii. o. 8, ^ Co. Litt. 170. s. 4 ; 4 Inst. 204; Dalt. p. 2; » 13 & 14 Vict. o. 30. Sir J. Davia, 62. * See 21 Eich. 2, o. 10. Digitized by Microsoft® GEfTBRAIi OBSEEVATIONS. the validity of this bye-la-w, as it affected the sheriff- alty of Middlesex, was called in. question : but it was held good. The nomination takes place every year at a Common Hall convened in the Guildhall. The sheriffs of counties palatine and of Middlesex, in a Court of justice, stand in the same relation as the sheriEEs of other counties do. They differ only in the mode of their appointment, manner of accounting, and the Uke. By " The Common Law Procedure Act, 1852" (15 & 16 Vict. c. 76, s. 122), " all writs of every description issuing out of the superior Courts of common law at "Westminster, to be executed in the counties palatine, shall be directed and delivered to the sheriffs of such counties, and executed and returned by them to the Courts out of which such writs are issued, in the same manner in all respects as writs are executed and returned by the sheriffs of other counties." The Queen may, it is said, at her will and pleasure, make any county a county palatine.^ In Berwick-upon-Tweed, Bristol, Canterbury, Cities and Chester, Exeter, Gloucester, Lichfield, Lincoln, Nor- wich, Worcester, York, Oaermarthen, Haverfordwest, Kingston-upon-HuU, Newcastle-upon-Tyne, Notting- ham, Poole and Southampton, the council appoint, on the 9th of November every year, a fit person to execute the office 'of sheriff.* London still has two sheriffs, who for most pu3j)0ses' constitute, in law, one officer.* There are certain ports, wherein the constable of CSngne ports. Dover Castle, as lord warden, executes all writs, &c. Their names are Dover, Sandwich, Eomney, Hastings ' ' Vaugh. Eep. 418. 5 M. & S. 144. 2 6 & 7 Wm. 4, c. 105, s. 5. * See Bao, Abr. Sherife, K. ; ' Thompson v. Farden, 1 Sc. Vin. Abr. Steriff, C. a., pi. 1. N. E. 282 ; Letsom r. Bk: ' Digitized by Microsoft® i GElsrERAl OBSEEVATIONS. and Hythe.'. The ancient towns of Winclielsea and Eye, and other ports that were incorporated -with the five ports, are within the liberties thereof. They are called The Cinque Ports. "ranchise. A franchise or liberty, as the term is here used, is a royal privilege or a branch of the royal preroga- tive vested in a subject, who, in person or by proxy, executes the civil process of the law thereia. All such liberties are judicially noticed by the Courts ; and the high sheriff is, likewise, bound to notice them.^ (aiiimck. A bailiwick is now, in general, used in the sense of sheriffwick : as in the return of a writ, where the person is not arrested, the sheriff says — "the within- named A. B. is not found in my bailiwick."^ heriffan TJie sheriEE is the immediate officer of the High flficer of the ^ lourt. Court to execute writs and the like, and whether a writ come to Tn'm by or without authority, or be awarded against whom it does not lie, he cannot doubt or dispute its validity.* The law presumes him to be indifferent between party and party; it may happen however that he is himself a party, in which case the writ is directed to the other sheriff, if there be two, or to the coroner. If the coroner should be also a party, the Court or one of the Masters may nominate a deputy to execute the writ, who is called an elisor. His power does not, in general, extend beyond his county : except by special authority, as by habeas corpus and the Uke. When that is so, he is, in another county, sheriff to a special intent ; and the law regards the removed as the prisoner of the 1 See 1 & 2 Geo. 4, o. 76, East, 338 ; Kewland v. CUffc, a. 18 ; Jeak's Charter of the 3 B. & Ad. 633. Cinque Ports. 3 See also Co. Litt. 168. 2 Boothman v. Surrey, 2 T. * See Mapiay v. Burt, 6 Q. E. 5 ; Carrett v. Smallpage, 9 B. 394 ; 2 Wms. Saund. 193. Digitized by Microsoft® GENEEAIi OBSERTATIONS. ' 9 same sheriff. By this means, it is said, there may be two sheriffs in one and the same county; namely, one to a special intent, and the other to all general intents and purposes.' So, if a prisoner, of his own wrong, escape into another county, the sheriff or his officer, upon fresh pursuit, may retake him there. His ministerial acts may, in general, be executed dehors his county;^ for example,- he may make his return anywhere in England. So the assignment of a bail- bond, or a panel, may be made anywhere in England. Again, a writ delivered to the sheriff anywhere will, in general, have the same effect as if it were delivered to him within the coujaty. By the 4 Hen. 4, c. 5, it was ordained that every sheriff of England should abide (soit demurrant), in proper person, within his bailiwick, for the time that he should be such officer; and that he should be thereto sworn ; but this ordinance was repealed by the 19 & 20 Tict. c. 64. The office cannot be apportioned, divided or Office not abridged.' The Queen, it is true, may determine °'>" ^^ ' it at pleasure (the sheriff being appointed during pleasTire), but she cannot determine it in part, as for one towi, or for one hundred, except by making such town a county of itself, and appointing a sheriff thereto. Neither can she take from him anything incident to his office. ■ Misuser is a cause of forfeiture of office, if held Forfeited. for life, or in fee ; or a ground of removal, and a fresh appointment, if appointed durante bene placito. If a corporation fail to make such an election as the letters-patent prescribe, it amounts to a forfeiture of the franchise : and the letters might be repealed by scire facias.* ' Plo-wd. 37 a. 34 Co. 33. 2 5 Co. 89 a ; Dalt. 22. * 12 Mod. 272. Digitized by Microsoft® lO QUAIilPICATION. The office has been, in fact, executed hj a female : for Anne Countess of Pembroke held the office in Westmoreland; and, at tbe assizes at Appleby, she sat witb. tbe judges on the bench.' All Courts must take iudicial notice of the high sherifE.'' Section II. QUAJLIFICATIOHr. Land. The Statute of Sherifis (9 Edw;. 2, c. 16, st. 2) declares, "that none shall be sheriff, except he have sufficient land within the same shire where he shall be sheriff, to answer the king and the people," and this is repeated by the 13 & 14 Car. 2, c. 21 ;' but the sufficiency of this qualification is not defined. As there are many duties cast upon him, for which the law has not provided any remuneration, men of , standing and substance are, for the most part, ap- pointed to the office, that they may be able to dis- charge those duties with more ease and dignity.* At conrmon law, no salary is attached to the office. This is another reason for appointiug men of sub- stance. Salaries were sometimes granted by Parlia- ment : and some grants still remain : as in "Wales, where the sheriff has, for his fee, 51. a year.* The sheriff of Cambridgeshire has a rent payable out of lands within the manor of Maddingly, in the same county.^ In counties corporate and towns, by virtue 1 Co. Litt. 326 a ; JJ. v. * See 13 & 14 Car. 2, o. 21, Stuilis, 2 T. E. 395. s. 1. 2 1 Salk. 266. « 34 & 35 Hen. 8, o. 26, 3 And see 4 Edw. 3, c. 9 ; s. 64. 5 Ed-w. 3, 0. 4 ; 14 Edw. 3, 1= 34 & 35 Hen. 8, c. 24. St. 1, 0. 7 ; 28 Edw. 1, 0. 13. Digitized by Microsoft® QUAlIFICATIOlSr. 1 1 of some tye-la-w, an allowance is sometimes made. • The Anxilium Yicecomiti was a fee of this kind. The Queen has an interest in every subject, and is entitled to his services; but, if one be disabled or disqualified, for any cause, he is not obliged to re- move such disability or to qualify himself.' For Dissenters. instance, in 1767, it was adjudged that a Dissenter was not compellable to quaHfy himself by taking the sacrament according to the rites of the Church of England ; and that a Dissenter's election to the office was null and void.^ When the disabling statutes, upon which the question arose, were repealed, another oath was substituted instead of the oaths of allegiance, supremacy and abjuration; and by the Oaths Act' a declaration is now made sufficient. The law may be briefly stated thus* : — ^No man is exempt from Disabilities the office of sheriff but by act of parliament ; ° letters- ^ns!"^™^' patent ; by disability, arising from a judgment in law f or by reason of the office being incompatible with another.' ' In one case in 1874 an absolute refusal to serve seems to have been tolerated — where the sheriff elect for Bedfordshire returned the warrant unopened to the Privy Council office. 1. Bythe2&3 Viet. c. 59, s. 2, any sheriff who is an officer of the militia is discharged from personally performing the office of sheriff while the militia remain embodied ; the under-sheriff is then answerable ; and the 30 Viet, c. 14, s. 67, and, in general, the Mutiny Acts, disable 1 Mead's case, 2 Mod. 299. c. 17, and 5 & 6 Will. 4, o. 28. ° Sarrison t. Hvans, Cowp. The Acts relating to deolara- 393. tions against transubstantia- 3 31 & 32 Viot. 0. 72, s. 12, tion are repealed by 10 Geo. 4, subs. 4. c. 7. ' * 13 Car. 2, st. 2, o. 1 ; 25 ^ larwood's case, 1 Kaym. Car. 2, 0. 2; 16 Geo. 2, o. 30, 32. repealed as to so muoh. as im- ^ 2 Mod. 305 ; 4 lb. 273. posed th.e necessity of taking ' See Norwich y. Berry, 4 tbe sacrament, by 9 Geo. 4, Burr. 2114. Digitized by Microsoft® 12 QTJAIilFICATION. , every person who is commissioned, and in full pay as an officer or who shall be employed in enlisting. 2. No one, who has served the office, can be, within three years next ensuing, chosen agaia, unless there be no other ia the county qualified for the office;' and it is not usual even to call upon the same family to serve twice in the same generation. 3. The 9 Edw. 2, c. 16, declares that none that is steward or bailiff to a great lord shall be made sheriff : except he be out of office. 4. By letters-patent : there is no instance of this in our books. 5. By disability arising from a judgment in law. A prisoner for debt is not bound to remove his disability ; but, for reasons not very intelligible on the face of the reports, a per- son excommunicated is bound to remove his dis- ability.^ 6. By reason of the office being inconsistent with some other : ' an attorney in actual practice is exempt on this ground ; for he cannot, of necessity, be attendant upon the superior Courts and upon his county, at the same time. Lord Mansfield, in the authority referred to for this proposition, said that this exemption was the privilege of the Court of which he was an officer, and not the privilege of the attorney himself. If so, the exemption must apply, with equal force, to sheriffs of counties as to sheriffs of cities or towns, as in the case then under discussion. In the same case, it was also said that barristers are ' See 1 Eicli. 2, o. 11 ; 23 for ever exempt. Ibid. If Hen. 6, o. 7. London seema one voluntarily STvears that now to be the only exception. he is not worth 20,0001., he is No person who has once served excused in London. {Ac( of the office in London and Mid- Common Council, 11th Jioie, dlesex is again eligible. [Act 1799; Bao. Abr. Sheriff (B.).) of Common Cmmcil, Ith April, ^ See 2 Mod. 299. 1748.) A person who has paid ^ Mayor of Norwich\.Sen-y, the fine (unless he afterwards 4 Burr. Rep. 2114. become an alderman) is also Digitized by Microsoft® QUAIEFICATION. 13 exempt.^ A barrister's being in actual practice, would be allowed as a good excuse ; but to say that a barrister is disabled, or that he is exempt from the oifi.ce, by reason of his calling, seems to be a hasty remark. A chairman of sessions for the county for which he was nominated, has been held not excused on that account; but in one case, where a person pleaded his onerous duties as a magistrate, coupled with the fact that the government were in treaty for the purchase of his estate, the excuse was allowed.' The oiB.ce is also incompatible with the duties of a m.ember of the House of Commons, that is to say, for the place of which he is the returning officer.^ But there is no objection to a sheriff's election for a county, city or borough, where he is not the returning officer. However, by a resolution of the House of Commons itseK (7th Jan. 1689), "the nominating any member of the House to the Mng, to be made a sheriff, is a breach of the privilege of the House." This does not prevent a member of parliament from serving if he is willing to do so, and in 1854 the member for Boston did, in fact, serve as sheriff of Norfolk. A coroner made sheriff is discharged from his office of coroner.* If a justice of the peace is appointed to the office of sheriff, he is forbidden by the 1 Mary, sess. 2, c. 8, s. 2, to use or exercise the office of justice of the peace--during his shrievalty ; and this Act has not been affected by any addition to the duties of justices of the peace which have been ' 4 Burr. 2114. SirE. Coke and yet he was returned for ■was Ch. J. of K. B., and after- that county. See Koscoe's ■wards was M.P. for Bucking- Life. hamshire, Cro. Car. 25, Dalt. * SherifE of Southampton, Add. Ch. 2. He had, before 1861. that, very tyrannically been ^ See 1 Bl. Com. 175, n. made high sheriff of Norfolk, * F. N. B. 163, n. Digitized by Microsoft® 14 IfOMINATIOH'. created by subsequent legislation.' Tlie nobility are not excluded from, the office. In ancient times, the office was in general filled with " barones, comites, duces interdum, et regum filii." Bishops, also, -were not unfrequently sheriffs.^ SECTioif m. BILLING- OR NOMINATING SHEEIFFS. Election. Sheriffs were formerly chosen by the inhabitants of the counties. In it, as Sir "W. Blackstone well ob- serves,^ we discover a strong trace of the demoeratical part of our constitution. The election, as he also says, was, in all probability, not absolutely vested in the commons, but required the royal approbation. For, in the Gothic constitution, the judges of the County Courts, which office was executed by our sheriff, were elected by the people, but confirmed by the king. And the form of these elections was thus managed. The people, or incolse territorii, chose twelve electors ; and they nominated three persons, " ex quibus rex unum confirmabat." But with us, in England, these popular elections growing tumul- tuous, were put an end to ; and the bill or nomination list is now made up of names suggested by the out- going sheriff to the senior judge on the summer circuit.* 1 JExp. Cohille, 1 Q,. B. D. June) one or more fit persons 133. (not exceeding nine), being ^ Spelm. Gloss. (Vice-coin.) ; free of the city, to be publicly Wilims' Leg. Sax. p. 205. put in nomination ; and any ' 1 Bl. Com. 339. two or more liverymen may, at * The Lord Mayor of Lon- the day of election, nominate don may nominatetothe Court any freeman of the city. {Act of Aldermen (at any time he of Common CoiiiicU, 1748.) And thinks proper, between the see 2 W. & M. o. 8. 14th of April and the 14th of Digitized by Microsoft® NOMINATIOlSr. 15 They are generally gentlemen of the county who, by their means and position, are fitted for the duties of such an o£B.ce. If any of them object to serve, they should send a letter of excuse to the circuit judge, or to the privy council, stating the grounds on which they desire to be excused. This should be done before the day of nomination ; although excuses can be accepted at any time before receipt of the warrant of appoint- ment. By the 9 Edw. 2, st. 2, sheriffs were to be assigned by the chancellor, treasurer, barons of the exchequer, and by the justices ; and, in the absence of the chan- cellor, by the treasurer, barons and justices. By the 14 Edw. 3, c. 7 ; 23 Hen. 6, c. 8 ; and the 21 Hen. 8, c. 20, the chancellor, treasurer, president of the Mng in council, chief justices and chief baron, are to assign them. On the morrow of St. Martin, they assemble in the Nomination. Exchequer Division,' the great officers of State arranging themselves on the Bench with the Lord Chief Baron presiding, and the judges who went the previous summer circuit sitting below. Eormerly the Queen's remembrancer used to administer an oath to them that they would nominate no one from favour, partiality or improper motive, but since the Promissory Oaths Act, of 1871,^ no oath has been used. He now takes a list of all the counties in alphabetical order (except Middlesex, Lancashire and Cornwall), and a list of the three names of those who were nominated the year before, which he reads over, and the last of the three he mentions as the present sheriff, whose name is then struck off as having 1 See 1 Bl. Com. 340; 2 34 & 35 yiot. o. 48. Judicature Act of 1873, s. 96. Digitized by Microsoft® 16 NOMnSTATION. served. If there should be any objection or excuse on the part of either of the persons whose names stand upon the roll, the letter of excuse is then read, either by the clerk of the privy council, if the excuse ■was forwarded to the privy council office, or by the judge, if it has been sent to him, as the case may be; and if the excuse, upon being duly considered by the privy councillors, is accepted, the Queen's remem- brancer (or his representative) calls upon the judge in whose circuit the particular county under con- sideration may be for one or more new names to take the places of those thus excused. Each judge attending has a list of extra names of gentlemen elegible for the office, which is suppKed to him by the outgoing sheriff, from which he reads as many names as he may be called upon to supply. As each county is made complete by the required three names being placed upon the roll, the Queen's remembrancer or his representative reads them over, marking them 1, 2, 3, in order of nomination. A copy of this list of nominees for the office of sheriff is then forwarded to the privy council office, whose duty it is to have it forthwith published in the London Gazette. The sheriffs for Wales are now nominated at the same time and ia like manner.^ The sheriff of the county palatine of Lancaster is afterwards nominated and appointed by the Duke of Lancaster, in the duchy office. This is, in general, * done in Hilary Term. The sheriff of Cornwall is nominated and appointed by the Duke of Cornwall (H. E. H. the Prince of Wales), in the Duchy of Cornwall office. This also takes place, in general, in Hilary Term. )n^thof When the sheriff, for the time being, dies, her ' 8 & 9 "Vict. 0. 11. Digitized by Microsoft® NOMINATION. 17 Majesty, by virtue of her royal prerogative, nomi- nates and appoiats Ms successor, -without this assembly of the great officers of state and judges on the morro-w of St. Martia. "Whether one, who ■was not on the nomination list, could he appointed, was a question that has called forth the keenest dis- putation.^ A pocket sheriff, that is to say, one that is not of the three on the nomination list, can he appointed hy the sole authority of the crown. But the exercise of this prerogative is very unusual unless warranted by exceptional circumstances.^ According London, to ancient custom, the liverymen of the city of London proceed to election on Midsummer Day; though the sheriffs do not enter upon their duties until September. That the election may be more free, the lord mayor and aldermen leave the hustings. Her Majesty's approval of the choice is now communicated by "warrant.^ In the cities of Oxford, Berwick-upon-Tweed, Other cities. Bristol, Canterbury, Chester, Exeter, Gloucester, Lichfield, Lincoln, Norwich, "Worcester, York, Caer- marthen, Haverfordwest, Kiagston-upon-Hull, New- castle-upon-Tyne, Nottingham, Poole, and South- ampton, the council, that is, the mayor, aldermen and councillors, are; on the 9th of November every year, at the quarterly meeting of the council, and immediately after the election of the mayor, to appoint a fit person to execute the office of sheriff,* who is to hold his office until the appointment of his successor. The nomination list havina: been arazetted with all Pricking the V . ° . n shenffs. the necessary alterations and corrections, rolls are 1 See 1 Bl. Com. 342 (edit. B.61,ameiiaedby6 &7Will.4, CImstian). ■ o. lOS, s. 4. Coventry lost its 2 1 Bl. Com. 341. sheriff by the 5 & 6 Viot. 3 22 & 23 Viot. 0. 21, s. 42. o. 116, s. 10. * See 5 & 6 WiU. 4, o. 76, Digitized by Microsoft® 18 APPOINTMENT. prepared by the Queen's remem'braneer and trans- mitted to the lord president of the privy coTincil, and certain other memhers of the council who usually attend the nomination, during the month of January, for the purposes of the ceremony of "pricking the sheriffs," which usually takes place the day before parliament meets. The pricking is performed by the Sovereign, who passes the point of a bodkin through one of the names (usually the first) for each county on the roll submitted by the lord president, thus selecting the sheriff for the ensuing year. The statute requires that the same shall be forth- with notified in the London Gazette, by the clerk of the privy council.^ ■Section IV. APPOINTMENT. Warrant. The appointment for counties in England and "Wales (except Middlesex, Lancashire, and Cornwall) is by a warrant signed by the clerk of the privy council. Warrant of Appointment.^ At the Conrt at. — =— tlie day of . Present the Queen's most Excellent Majesty in Council. ' T(JA. B. of, &c. Whereas H. M. -was this day pleased by and -with the advice of her privy council to nominate and appoint you for and to be sheriff of the county of during her Majesty's pleasure: These are therefore to require you to take the custody and charge of the said county and duly to perform the duties of 1 3 & 4 Will, i, 0. 99, s. 3. » 3 & 4 Will. 4, c. 99, Set. Digitized by Microsoft® APPOnSTTMENT. 19 sherifl thereof during her Majesty's pleasure and -whereof you are duly to answer acoording to law. Dated this day of . By H. M.'s command. CD. There is now no patent, -writ of assistance, or other ■writ whatsoever ; nor does the sheriff enter into any recognizance, nor pay any fees for the same. The warrant iaust be, forthwith, after the prick- ing (which . usually takes place in Hilary Term following), transmitted to the person appointed, by the clerk of the coi;yicil, who must, also, within ten days after the date of the warrant, transmit a dupli- cate thereof to the clerk of the peace of the county for which such person is appointed sheriff ; to be, by the clerk of the peace enrolled, and kept, without fee or reward. On receipt of this warrant, and before he enter Declaration. upon the execution of his office, every one so ap- pointed must make the usual declaration' that he will well and truly serve her Majesty in the office of sheriff, which is filed in the office of the clerk of the peace : to whom a fee of 5s. is allowed.'' The appointment, as shown by the warrant, is Detennina- during her Maj esty's pleasure. ' Therefore, until a new sheriff is appointed and sworn, the office is not, in . general, determined; for example, in 1867 the per- 1 31 & 32 Vict. 0. 72, s. 12. of office. If elected between 2 As regards the sheriffs the 14th and 22nd of Septem- of London and Middlesex, the her, and they do not make the persons elected at the general declaration on Miohaehnas election day are to appear Day, or, if elected at any before the Court of Aldermen, other time, and they do not, on the 14th of September after within six days after notice their election: to enter into an of election, make the declara- obligation to the Chamberlain tion, they may be fined. See of the City, in the penalty of " Pulling's Laws and Customs 1,000^. conditioned to appear of London," and 31 & 32 Vict, on Michaelmas Day at Guild- c. 72, s. 12. hall and make the declaration 02 Digitized by Microsoft® 20 APPOINTMENT. son appointed to be sherifE of Surrey died before taking the oath of office, and his predecessor con- tinued to act until another was appointed and sworn. On a demise of the crown he holds his office for six months longer, unless sooner displaced by another.! jjj ^j^e event of the dqath of the high sheriff of any county in England and "Wales, his under-sheriff continues in office, and executes the same, in the name of the deceased sherifE, until another sheriff be appointed and sworn. The under- sheriff is answerable for a prpper discharge of the duties of his office, in all respects, as the deceased sheriff would have been, if he had been living. The security given by the under-sheriff to the deceased sheriff stands as a security in the meantime.' The office, if held for life, or in fee, may be forfeited and seized by the crown, or the holder removed for misconduct. So, if a militia officer, being sheriff, be called out for actual service, he is discharged from personally performing the duties of the office.' In that case, his under-sheriff, during the time, is in the same condition as the under-sheriff of a deceased high sheriff. Every sheriff appointed under the Municipal Cor- poration Act (the 5 & 6 Will. 4, c. 76), or under the 6 & 7 WiU. 4, e. 105, s. 5, holds his office until the appointment of his successor. The warrant of appointment, per se, does not affect the relation of the old and new sheriff; it operates, only, as an authority to the incoming sheriff to qualify himself for entering upon his office, and to take, from the outgoing sheriff, a transfer • of aU writs, &c. That was the effect 1 1 Ann. St. 1, 0. 8. 3 2 & 3 Viot. o. 59 » 3 Geo. 1, 0. 15, B. 8. Digitized by Microsoft® APPOINTMENT. 21 of the patent before the 3 & 4 "Will. 4, c. 99 ; and sucli, it is conceived, is that of its substitute, the warrant of appointment. . When, and by what process, then, are their conditions changed ? When, and by what process, is the one charged with, and the other discharged from, the custody of the county? The rule may be thus laid down : — The old sheriff is not discharged from nor is the new sheriff charged with the custody of the county till two things are done, viz. the receipt of the warrant of appointment by the iacoming sheriff, and the deKvery to the out- going sheriff of the signed duplicate list and account mentioned in the 7th sect, of the stat. of 3 & 4 Will. 4, c. 99.' The words are " Every sheriff of any county, city, liberty, division, town corporate, or place, shall, at the expiration of his office, make out and deliver to the new or incoming sheriff, a true and correct list and account, under his hand, of all prisoners in his custody,' and of all writs, and other process in his hands, not whoUy executed by him; with all such particulars as shall be necessary to explain to the said incoming sheriff the several matters intended to be transferred to him;' and shall thereupon turn Time and over and transfer to the care and custody of the said transfer, incoming sheriff all such prisoners, writs, ^d process, and all records, books, and matters appertaining to the said ofB.ce of sheriff." "And the said incoming sheriff shall, thereupon, sign and give a duplicate of such list and accounts to the sheriff going out of ' As to tlie old law, see are not transferred, Harrison Fitz. case, Cio. Eliz. 28; Wes- t. Paynter, 6 M. & W. 391. ley v. Siinner, Noy, 51 ; 19 As to the meaning of the Via. Abr. 461. -words wholly executed, see ^ The custody of all pri- Jordan v. BmeJces, 13 Q. B. soners is now transferred to 760. See also Westby^s case, the gaoler. Prison Act, 1877. 3 Eep. 72 ; R. v. Sheriff of ^ Writs wholly executed Middlesex, i East, 607. Digitized by Microsoft® 22 APPOINTMEN'T. office, to whom tlie same shall be a good and sufficient discharge of and from all the prisoners therein men- tioned, and transferred to the said iacoming sheriff ; and the further charge of the execution of the writs, process, and other matters therein contained, without any writ of discharge, or other writ whatsoever; and the said incoming sheriff shall, thereupon, stand and be charged with the said prisoners, and also with the execution and care of the said writs, process, and other matters contained in the said list and account, as fully and effectually as if the same writs and pro- cess had been turned over by indenture and schedule. And in case any sheriff shall refuse or neglect, at the expiration of his office, to make out, sign and deliver such list and accounts as aforesaid, and to turn over the process aforesaid in manner aforesaid, every such sheriff so neglecting or refusing, shall be liable to mate such satisfaction by damages and costs to the party aggrieved, as he, she, or they shall sustain by such neglect or refusal."' Power of As the transfer is seldom made or accepted by the high sheriff, in person, the following may be the form of the Power of Attorney. 1. To AIL TO ■WHOM IHESE PBESBNTS R TTAT. T. COME GEEETIlfQ : Whereas I Gr. A. of in the county of by H. M.'s warrant of appointment bearing date the day of A.D. • ■ have been appointed high sherifB of t^e said county instead of M. A. Esq. : Notv ■kso'w te, that I have nominated constituted and appointed and do by these presents nominate constitute and appoint T. E. of in the said county gentle- 1 Reg. Gen. Hil. T. 1853, -within the time aJIo-wed by r. 134, provide that, "Where larw, be called upon to bring any sherifi, before his going in the body by a rule for that out of office, shall arrest any purpose, notwithstanding he defendant, and take a bail may be out of office before bond, and make return of cepi such rule shall be granted." corpus, he shall and may, Digitized by Microsoft® attorney. TJITDEE-SHEErET. 23 man for me and in my stead to receive and take from the said M. A. or from his under-sheriff or from such other person or persons as he shall or may appoint for that purpose a true and correct list and account of all writs and other process in his hands not whoUy executed by him with all such particulars as shall be necessary to explain to me the several matters intended to be transferred to me and all records books and matters apper- taining to my ofSce of sheriff; and further for me and in my stead to sign and give a duplicate of such list and account to the said M. A. aid whatever else may be necessary to carry the same into effect. In witness whereof I have hereunto set my hand and seal this day of a.d. . 2. To AM, TO WHOM THESE PEESENTS STTATiT. COMB GBEETHrQ : Whereas by H. M.'s warrant of appointment G. A. Esq. of hath been duly appointed high sheriff of the county of C. in my stead: Now know te that I have nominated con- stituted and appelated and by these presents do nominate constitute and appoint J. B. of in the said county gentle- man for me and in my stead to make out and deliver to the said G-. A. Esq. a true and correct list and account of all writs and .other process in my hands not whoUy executed by me with all such particulars as may be necessary to explain to brm the several matters intended to be transferred to him and to turn over and transfer to his care and custody all such writs and process and all records books and matters apper- taiuiag to the said office of sheriff, and further for me and in my stead to accept and receive a duplicate of such list and account and all such 'writs process records books and matters appertaining to the said ofSce. In witness, &c. Section V. TJNDEE-SHEEIFF. By tlie commoii law, he that has an office of trust Deputy of cannot make a deputy, without express words in his ^ patent (or grant) so to do.' Now, the office of high sheriff is an office of great trust and confidence ; and, 1 SeeDalt. ch. 1. Nor could Jones v. Williams, 7 Dowl. P. an under-sheriff appoint a de- C. 938. puty to execute a writ of trial. • Digitized by Microsoft® 24 XmUEE-SHEEIFF. therefore, he caniiot (except by force of some Act of Parliament) make a deputy in such things as concern his judicial power. Nor may he let, or assign over his office, in any manner. As for matters concerning his ministerial office, he may, by the common law, make or appoint, under him, his under-sheriff, baOiffs, and others, who may occupy their places in right of the sheriff.^ This he may do, without express words in the warrant of appointment to that efltect. Appoint- Pormerly, the sheriff was not, it seems, obliged to piUsory^™ appoint an under-sheriff. Again, there was a doubt whether he could appoint one by parol. But now, every person so appointed sheriff as aforesaid shall, within one calendar month next after the notification of his appointment in the London Gazette, by writiag under his hand, nominate and appoint some fit and proper person to be his under-sheriff;^ and shall transmit a duplicate thereof to the clerk of the peace for the county; to be by him filed, and which he is, by the act, required to file among the records of his office; and for which he shall be entitled to demand and have, from such under-sheriff, the sum of 6s. and no more. The appointment and duplicate are not liable to any stamp duty.^ Appointment. To AXl TO WHOM THESE PEESENTS SHALL COME OEEETIXG: Whereas I Gr. A. of in the county of W. have been ap- pointed during H. M.'s pleasure sheriff of the said county by 1 Dalt. CO. 1 & 115. Geo. 2, o. 46. See Faidhier ' Neither the under-sheriff v. ClieveU, 5 A. & E. 213 ; nor his deputy can act as a Briggs v. Sowton, 9 Dowl. solicitor, attorney, or agent, P. C. 105. Semble, this is or sue out any process at any not affected by 6 & 7 Viot. general or quarter sessions of c. 73. the peace -within the county, ^ 3 ^ ^ "WHl. 4, 0. 99, s. 5. under a penalty of 50Z., 22 Digitized by Microsoft® ■DHDEE-SHEIlIFr. 25 a warrant of appointment bearing date the day of A.D. : Now ENOW TB that I have nominated constituted and appointed and by these presents do nominate constitute and appoint M. A. of in the said county gentleman my imder-aheriff of and for the said county and do depute and authorize him to act and to execute for me and in my stead all things to the said ofBoe of sheriff in any wise appertaining or belonging. Dated this day of ■ a.d. Gr. A. The 3 Greo. 1, c. 15, s. 10, enacts, "that it shall Farming not be lawful to or for any person or persons what- soever to buy, sell, let or take to farm the office of under-sheriff, deputy-sheriff, seal-keeper, county- clerk, shire-clerk, gaoler, "bailiff, or any other office or place pertaining to the office of high sheriff of any county or shire in England or Wales; or to contract for, promise, or grant for money or other reward or benefit, the said offices or places or any of them; nor to give, take, promise or receive any other consideration whatsoever for the said office, or any of them, directly or indirectly, by themselves or any person in trust for them, or for their use," under the penalty of 5001. This Act did not, in this re- spect, extend to London, Middlesex or Durham, or to any city or town, being a county of itself. But by the 5 & 6 Anne, c. 31, s. 8, it was declared that "no sheriff of London and Middlesex shall accept, demand, take or receive of his or their under-sheriff, directly or indirectly, either by himself or any person or per- sons in trust for hini or them, any sum or sums of money, gratuity or present whatsoever, for the execu- tion of the place of under-sheriff." ^ The sheriff cannot abridge his power; for it is essential to a deputy to have the whole power of his principal, except the power of making a deputy." On ' Extended to Durham by - See Bacon's Ab. (SherifE), 14 Geo. 3, c. 46, s. 1. H. 1. illegal. Digitized by Microsoft® 26 tnjDEE-SHEEIFF. the other hand, he cannot, proimo vigore, enahle Tiim to do what he must do in propria persona.^ Indemnity. The sheriflE may take security from his under- sherifB to indemnify Tiim from actions, and the like. Indeed, since the 3 Geo. 1, c. 15, s. 8, which provides, in case of the death of the sheriff, that the security given by the under-sheriff and his pledges shall stand as a security' to all persons, he must take it.^ Security to High Sheriff. This Indeniuee made &c. Ijetween A. B. of in the county of C. of tlie first part and C. D. and E. F. of tlie said comity of the other part: Whereas the said A. B. by H. M.'b warrant of appointment bearing date the day of ■ A.D. has been appointed sheriff of the said county during'. pleasure and hath taken upon himself the duties thereof : And whereas also at the instance of the said C. D. and E. E. the said C. D. hath been appointed by the said A. B. to be under- sheriff of the said county. In consideration whereof and iu consideration of the covenants hereinafter mentioned on the part of the said A. B. the said E. E. and the said C. D. jointly and severally for themselves their heirs exors and admors do hereby covenant promise and agree to and with the said A. B. his exors and admors that he the said C. D. shall and will well and sufficiently perform, the office of under-sheriff ; and shall and win save harmless and keep indemnified the said sherifE his heirs exors and admors of and from aU manner of actions causes of actions suits fines and amerciaments contempts and forfeitures and all other charges and incumbrances whatsoever which shall or may happen to be assessed or imposed upon the ' said A. B. as sherifE by reason of the nonfeazance misfeazance or malfeazance of him the said C. D. or for or by reason of any other cause or thing whatsoever that should or ought to be done by the said under-sheriff or by the clerks baUiffs or servants to be employed concerning the said office. And further that the said under-sheriff shall from time to time give due notice to the said sheriff of such personal attendance as shall be requisite to be made by him ; and shall attend on and assist I him thereat and be aiding and assisting in raising and levying such force within the said county as the sheriff shall be enjoined to raise ; and cause to be executed aU such per- sons as shall be sentenced to death according to his or her sentence and well and faithfully do execute and perform all and every act matter and thing belonging to the said office 1 6 Co. 12 ; Hob. 13. -^ See also 2 & 3 Vict. ^. 59, s. 2. Digitized by Microsoft® ■UXDER-SHEEIFi'. 27 of iinder-sherifE. 1 And the said A. B. dotli hereby for himself his heirs «xors and admors covenant promise and agree to and with the said C. J), his exors and admors in manner f ollomag : that is to say, that the bonds or obligations to be entered iato or given to the said sherifE by his bailiffs shall be considered as ■well for the indemnity of the said under-sheriff as qf the said sheriff himself. And that the said under-sheriff performing the aforesaid covenants shall have and enjoy the said of&oe of under-sheriff during the shrievalty of the said A. B. and keep by himself or deputy the courts by ■law established in the said county and have and take all lawful fees dues profits and emoluments whatsoever belonging to the said ofSoe of sheriff. In witness whereof the said parties to these presents have hereunto set their hands and seals on the day and year first above written. Signed sealed &o. The Tinder-slierifE must, like the high sheriff, make Declaration, the declaration before entering on his of&ce.- The under-sheriff, as such, is not an officer of the Powers. ' High Court, ^ except when he is acting under the 3 Geo. 1, c. 15, s. 8, or under the Mutiny Acts. He is the deputy of the sheriff for all ministerial, and, by Act of Parliament, for some judicial, purposes. He does everything in the name of his principal ; and his principal is, civilly, answerable for his acts. The power to make bailiffs and precepts_is a neces- sary consequence of his deputation; although the sheriff- does not acquaint him therewith.* "Writs &c., directed to the sheriff, are usually delivered at once to the under-sheriff, or his London deputy, to make out the proper warrants thereon : which, as we have seen, he may do by force of his deputation. ^ He is obliged to receive them, in any place and at all times, within the county, on the tender or payment ^ Any other covenant may be added, such as to get the ac- counts examined and audited, duly to transfer all writs not wholly executed, &c. ' Ante, p. 19. ^ Zaicock's case, Latch, 187; Com. Dig. (tit. Visct.) * Parker v. Kctt, I Salk. 96. 5 See 3 & 4 WUl. 4, c. 42, s. 20, as to the necessity of having a deputyresident within one mile of the Inner Temple Hall for all such purposes. Digitized by Microsoft® 28 DEPUTIES rtf London. of such fees as the law allo-ws. The delivering out warrants, before he has the writ in his custody, sub- jects him to a penalty of 10?. Under the like penalty, every warrant must have the same day and year set down thereon as shall be set down on the writ itself.' By the stat. of 42 Edw. 3, c. 9, it was enacted "that no sheriff, under-sheriff, nor sheriff's clerk, abide in his office above one year;" but, by 1 Yiet. c. 55, s. 1, the above is repealed, as relates to the time during which under-sheriffs and sheriffs' clerks may abide in their respective offices. Section VI. DEPUTIES IN LONDON. By the 3 & 4 WiU. 4, c. 42, s. 20, the sheriff of each county, in England and "Wales, must severally name a sufficient deputy, who shall be resident, or have an office, within one mile from the Inner Temple Hall, for the receipt of writs, granting warrants thereon, making returns thereto, and accepting of all rules and orders to be made on or touching the execution of any process or writ to be directed to such sheriff. A delivery of a writ to such a deputy is, in effect, a delivery to the sheriff himself.' No mention is made in the Act of the time or form of naming a deputy for such purposes. A reasonable time will, therefore, be allowed for that purpose. 1 6 Geo. 1, 0. 21, 8. 53. = Harris v. Lloyd, 5 M. & Hall V. Roolw, 8 T. K. 187. W. 436 ; Woodland r. Ftilkr, 11 Ad. & E. 859. Digitized by Microsoft® B^ULIITS. 29 Appointment. W. to wit. ■ Sir G. M. Bart, sheriff of the ooxmty aforesaid to M. A. gentleman, greeting : I do hereby nominate con- stitute and appoint you to be my deputy for the receipt of ■writs granting warrants thereon making returns iJiereto and accepting of all rules and orders to be made on or touching the execution of any process or writ to be directed to me as sheriff as aforesaid. Griven under the seal of my ofSce this day of A.D. 18—. G. M. Section YII. BAILIFFS. By the 14 EdTV. 3, stat. 1, c. 9, it is enacted "that Quaiffloa- sherifEs shall hold the same (counties) in their own hands, and put in such bailiffs and hundredors, having lands -within the said baUiwicts and hundreds, for ■whom they ■will'ans'wer." Formerly, a writ, called " a balivo amovendo," lay to remove a bailifE from his office for want of sxifflcient land in the bailiwick. In Cumberland,^ and in Cornwall,^ there seem to be, in fact, no bound-bailifEs ; but Lord Kenyon, in speaking of Cumberland, says, " "What -protection the sheriff of Cumberland has, in cases of this kind, that other sheriffs have not, it is not necessary to inquire in this case; but though he may not have bound-bailiffs, he may perhaps learn, whenever the question arises, that he is bound, like all other sheriffs, either to execute the writ personally, or to procure it to be executed by some other person, for whom he is responsible." This with equal force ^ Hamilton v. Dalziel, 2 W. ^ Sawh v. Faynter, 1 D. & Bl. 952 ; Taylor y. Richardson, E. 309. 8 T. E. 606. Digitized by Microsoft® 30 BOUNB-BAILrETS. applies to Oomwall, and to other counties, as to the one to wHch it has more immediate reference. There are :—l. Bound-bailiffB. 2. Specialhailiffs. 3. Bailiflts of liberties. BoTXHD-BAHrETS. Bound-bailifEs are such as are bound, with secu- rities, to the high sheriff, in an obligation for the due execution of their office. The nature of their office appears sufficiently from the conditions of the obligation set out below. Their power cannot be abridged.' In London they are called serjeants-at- mace. Bound-Bailiff's Obligation?- Kkow all men by these peesents that we C. D. of and E. F. of are held and firmly boxrnd to A. B. Esq. sherifE of the comity of C. in the sum of £ to be paid to the said A. B. or to his certain attorney exors admors or assigns for which payment to be well and^l^pily made we bind ourselves and each of us our and each of our heirs exors and admors and every of them jointly and severally by these pre- sents. Wheeeas the said sheriff at the request of the said C. D. and of his surety the said E. F. hath nominated and appointed the said 0. D. to be one of the baihfis of the said sheriff for so long time as he the said A. B. shall remain sherifE of : Ksn WHEEEAS the said E. F. in consideration of the nomination and appointpient of the said C. D. as aforesaid hath consented and agreed to execute such bond or obligation as is above written with such condition as is hereinaiter expressed and contained: Now thebeeobe the cohbition of the above-written obligation is such that if the said baUiff shall duly execute aU warrants or mandates to him directed by the said sheriff under-sherifE or deputies or any of them in the name of the said sherifE and shall duly make a true and sufRcient return in writing to all warrants which shall come to his hands as such baiUfi for execution : aud aiso if the said bailiff shall and will deliver up to the said sheriff or under-sheriff all bonds and other securities belonging to the said sherifE within two days after the same shall be taken ; and aiso if the said bailiff shall give day by day instructions in writing for the sheriff' s return to each and every writ and process upon which any warrant shall have 1 See Dalt. oh. 115; 2 Brownl. 283. Digitized by Microsoft® BOHNB-BAILHTS. 31 been granted to him or under or in respect of or by colour of which he shall in any way act or assume to act as bailiff to the said sheriff whether such writ or writs shall have been executed or not ; Airo Aiao if the said ba,i1iff shall duly execute all writs delivered to him for execution from her Majesty's High Court of Justice ; A^ro Also if the said bailiff shall make a true return and inrentory of all goods and chattels seized in execution by >iiTn as bailiff to the said sheriff and if he shall before removal thereof pay to the landlord the rent in arrear not exceeding one year and all taxes due in respect thereof pursuant to the statute and shall indemnify the said sheriff on account of any mistake or default relatiag thereto ; Airo aibo if the said bailiff shall pay to the said sheriff or under-sheriff the consideration or purchase-money mentioned in every biU of sale or assign- ment executed by the said sheriff or under-sheriff at the request of the said bailiff notwithstanding the acknowledgment of the receipt thereof by the said sheriff contained in any such bin of sale or assignment ; aud aibo if the said bailiff shall and will forthwith pay to the said sheriff or under-sheriff all monies received by the said bailiff on any arrest or levy by him made or with which he shall be entrusted for the said sheriff without deduction ; aub aiso it the said bailiff shall in all things truly and honestly demean and behave himself as bailiff aforesaid and faithfully and diligently serve and attend the said sheriff his under-sheriff and their deputies and in due and lawful manner all their and every of their lawful commands or directions touching any manner of service incident or belong- ing to the said of&ce of sheriff shall and will execute and pCTfoim ; AUD Also it the said bailiff and his sureties some or one of them shall indemnify and save harmless the said sheriff and his under-sheriff from all damages loss costs and charges which they or either of them shall or may suffer sustain or be put unto or be liable to suffer sustain or be put unto for or by reason of the nonfeazance malfeazance or misfeazamce of the said baibff or for or by reason of the payment of any money by the said sheriff under-sheriff or deputies to any person or persons or by reason of any return to any writ or process made by the said sheriff under-sheriff or deputies at the request of the said bailiff ; ani} ai£0 if the said bailiff and his said sureties some or one of them their or some one of their heirs executors or administrators shall and will save harmless and indemnified the said sheriff and under-sheriff their and each of their executors and administrators from and against all actions suits fines and amerciaments penalties contempts forfeitures loss costs charges damages and expenses which may be commenced prosecuted imposed or set upon them or either of them or which they or any or either of them may suffer pay or be liable unto for or by reason of any extortion happening by the act or default of the said bailiff or for or by reason of the executing not executing returning not returning or mis- retom of any writ process mandate precept warrant or order the not bringing into court the body of any defendant or any other cause whatsoever happening by or arising from the act or Digitized by Microsoft® 82 SPECIAL BAILIFPS. omission of the said bailiff then the above-written obligation shall be void otherwise to be and remain in full force and virtue. Declaration. Before impaneUing, or retiirning any inquest, jiuy, or tales, or intermeddling witn tlie execution of process from any court of record, he must, under the penalty of 4:01., make the declaration of office. Formerly it was the oath prescribed by the 27 Eliz. c. 12; but it is now, it seems, the same declaration, mutatis mutandis, as the high sherifP and the under-sheriff make.^ Duties. The under-sheriff is the sheriff's deputy in all that relates to his ministerial duties; but between a bound-bailiff and the sheriff there is no such con- nection. The bailiff is, in effect, appointed by the sheriff to act on each occasion of executing process, wherein he is concerned. In other words, when a warrant is granted to him, he becomes the . special officer of the sheriff for that individual occasion, and no more.^ This distinction is of great importance ia practice. But as the evidence to connect the under- sheriff and baiUff with their principal the sheriff, as well as his responsibility for the wrongful acts of his officers, must be more fully considered hereafter, we proceed to explain the character of those who fall under the second division, namely. Nomination, Speoiai, Bailipps. They are nomiaated by the party in the cause, or by his solicitor, and appointed by the sheriff, pro hac vice. For their acts, so long as the special agency continues, the sheriff is not responsible. Where there is an express appointment, no difficulty can I Ante, p. 19. ' Dmlie V. Sytces, 7 T. E. 113; Brawny. CopUy, 2 D. & L. 336 ; Smwlall v. Goodriche, 4 B. & Ad. 41. Digitized by Microsoft® BAILrFF OF A LIBERTY. 33 "Well arise; but wliere tlie appointment is to be inferred from circumstances it is otherwise. Tbe Liability of result of the authorities may be fairly summed up his acts. thus : — ^the appointing a special bailiff, or the giving special directions to a bound-baiUff, or any inter- ference of the solicitor with the execution of the process, discharges or modifies the liability of the sheriff to the extent to which the bailiff has acted under such special directions, or in direct consequence of such interference.^ The sheriff has been held dis- charged by the fact of the plaintiff's appointment of a special bailiff to manage a sale: although he returned that he had sold, and that he had paid the sum illegally deducted for the auction.^ At the same time let it be observed that the mere expression of a -wish or a request by the solicitor, that an officer, usually employed, may execute the writ, does not, without more, constitute the latter the plaintiff's agent.' In iew words, whether anything said, ■written, or done, amounts to an appointment of a special bailiff, or to a sufficient contract with the officer to make him the agent of one of the parties instead of the sheriff, is a question of fact rather than of law.' Bailiet of a Libeety. The bailiff of a liberty is one appointed by the lord of a liberty to execute process, and to do such offices therein as the bound-bailiff does within the county.* 1 See :porter v. Viner, 1 Cli. ' 1 Ch. Eep., supra. Eep.613; FaUisterv.FaUister, ' Andersonsr. Davenport, 13 ibid. n. ; Salson v. Meggat, 4 M. & W. 46 ; Wright v. Child, Dowl. 558; Ford v. Leche, L. E., 1 Ex. 358. 1 N. & P. 737; Wright v. * See Dalt. ch. 117; New- Child, L. R., 1 Ex. 358. land\. Cliffe, 3 B. & Ad. 641. A. B Digitized by Microsoft® 34 BAILIFP OI' A LIBERTY. Eelation to sheriff. Effect'of non omittas, Execution ■within liberty by sheriff. He is an independent officer.' Yet, as there is some connection between the sheriff of the county and him, arising out of the execution of process within the liberty, it is important to know not only the nature of that connection, but the sheriff's right and duty to enter the franchise. The sheriff, as already stated, is the immediate officer of the High Court of Justice; and to him writs are directed, although relatiug to things to be done withia a liberty or franchise.^ If a writ contains what is commonly called a non omittas clause, the liberty is thereby made pro Mc vice parcel of the sheriff's baUiwick : and he or his officer must enter the liberty, and execute the writ there.' But, if a writ does not contain the non omittas clause, it ought to be executed by the bailiff of the liberty, to whom the sheriff directs his mandate for that purpose.* If a sheriff's officer enter a liberty to execute a writ not containing the non omittas clause and does there execute it, such execution is not irregular. His entry is, however, an infringement of the lord's rights, who may claim compensation for the injury.' The sheriff may, ex officio, and without any writ of non omittas, enter the franchise, and execute his office, whenever the crown is a party to the action or process under which he is set in motion ; as also in cases where the bailiff has neglected to make any return to the mandate. By the 8 & 9 Vict. c. 72, s.,4. 1 Dalt. ch. 117; Boothman T. Surrey, 2 T. E. 5; Jackson T. mil, 10 A. & E. 484. ■ 2 Dalt. 00. 40, 117; Car- rctt T. Smallpage, 9 East, 330; Bowring v. Pritchard, 14 East, 289. 2 Adams T. Osbaldeston,' 3 B. & Ad. 490. * lb. ; TSTewland v. Cliffe, 3 B. & Ad. 633. = Dalt. oh. 117; Boothman Y. JE. of Sm-rey, 2 T. E. 5 ; S. T. Mead, 2 Stark. 207 ; Jackson v. IliU, 10 A. & E. 493. Digitized by Microsoft® BAILIFF OF A LIBEETY. 85 in executing, a capias, or any other process against the person, the sheriff of the county of York (whether the writ contain the non omittas clause or not) is bound to enter the liberty of the Honour of Ponte- fract, and execute the writ. The bailiff of a liberty, having the return of -writs, Duties. cannot arrest a man without authority from the sheriff derived from the writ in his hands. And he must make his return to the sheriff, and not to the Court, for he is not the officer of the Court. If he arrest one by a warrant, upon an order to him directed from the sheriff, the obligation taken for the appearance of the party must be made to the sheriff and in his name. "Whether the sheriff should direct his mandate to the lord or to the baUiff of the fran- chise ; or, whether in the lord's name or in that of his deputy the returns and other ministerial acts are to be done, are questions that depend, chiefly, on this, whether the grantee of the Crown has, by his bailiff, the full return of writs within a certain district. If that be so, then the mandate may be directed to the bailiff by name, and the return made in his name ; but if the grant contain no such special provision, the bailiff is but the lord's deputy, and all things must be done in the name of the principal. If he can obtain no certain knowledge of the fact, nor of the usual practice (which cannot well happen), the only safe course is to direct his mandate to the lord, as principal, and not to the bailiff. All lords that have franchises, or their bailiffs, shaE attend upon the justices of assize and gaol delivery, on pain of forfeiture of their franchises.' And all such bailiffs, or their deputies, must attend upon and assist the sheriff at all Courts of gaol delivery, the 1 Dalt. ch. 117. d2 Digitized by Microsoft® 36 GAOLERS. execution of convicts, &c.' "WTiere the bailiff of a liberty bad regularly attended the Court of Quarter Sessions, and bad made returns of jurors resident witbin tbe liberty, a fine was imposed upon bim for refusiag to summoii a jury to attend at sucb sessions." A bailiff of a liberty is judicially noticed.' Custody of gaol. hility of sheriff. Section VJLUL. GAOLERS. By tbe common law, tbe sberiff bad, ex officio, tbe custody of tbe common gaol in tbe county; except wbere it bad been granted out by tbe Crown to some otber person, or to some body corporate. He appointed tbe gaoler; and could bave removed bim, at pleasure.* On tbe other band, be was responsible, civilly, for bis acts. But, by tbe Prisons Act, 1865,° this power of appoiatment was conferred on tbe justices in sessions assembled, and tbe responsibility of tbe sberiff was confined to debtor prisoners. This responsibility is now stm further lessened by tbe Prison Act, 1877, which, after giving to the secretary of state power to appoint county prisons, and to make rules connected with tbem, enacts that the sheriff shall not be liable for the escape of any prisoner." And it is further enacted, that "nothing in this Act contained shall affect tbe jurisdiction or responsibility of the sberiff in respect of prisoners under sentence of death and 1 Newland\. Cliffe, 3 B. & Ad. 630. » S. V. Jaram, 4 B. & C. 692. ^ Boothman v. Surrey, 2 T. R. 6. « See 14 Edw. 3, o. 10. 6 28 & 29 Viot. c. 126, s. 10. « Sect. 31. This Act comes into operation on the 1st AprU, 1878. Digitized by Microsoft® GAOLEES. 37 con fined In any prison within his JTmsdiction, or his jurisdiction or control over the prison where such prisoners are confined, and the officers thereof, so far as may be necessary for the purpose of carrying into effect the sentence of death, or for any purpose relating thereto; and in any prison in which sentence of death , is required or authorized to he carried into effect on any prisoner, the sheriff shall, for the purposes of carrying that sentence into execution, he deemed to have the same jurisdiction with respect to such prison as he would hy law have had with respect to the com- mon gaol of his county, if this Act had not passed, and such prison were the common gaol of his county."^ 1 Sect. 32. See post. Chap. III., p. 89. Digitized by Microsoft® ( 38 ) Court. CHAPTEE THE SECOND. JUDICIAL DUTIES. The sheriff's judicial duties have been much cur- taUed by modern legislation. They consist chiefly of jurisdiction in matters of outlawry, writs of inquiry and compensation oases, and conducting elections of coroners. Section I. COUNTY COUET. Tome. The Magna Charta, as we have already stated, stripped the sheriff of all power to hold pleas of the Crown. His Tome, thereupon, ceased to be as a necessary consequence. "When we say ceased to be, we mean that it ceased to be a Court of record — ^to be a Court for the trial of persons accused of crime; for, after that, he might stiU, in his Torne, have initiated inquiry into offences, with a view to a final inquiry elsewhere. But, as all the business, even of a pre- liminary kind, has devolved on the quarter sessions of the peace, it is needless to dwell any more upon it. County The County Court, as well as the Tome, is, by the common law, incident to and inseparable from the office of sheriff. But the sheriff's County Court, like the Torne, is but the shadow of what it was. Before the new County Court Act^ it had, to a limited 1 9 & 10 Vict. c. 95. Digitized by Microsoft® COUNTY COURT. 39 extent, a jurisdiction concurrent ■with, and sometimes exclusive of the superior Courts. The sheriff's duties, in the old common law County- Court or Shire Court, are, for the most part, of a ministerial kind. He is the mere registrar : the suitors or freeholders being the judges. In matters of outlawry, as we shaU. presently see, the coroner sits with him to give judgment. Replevin proceedings, which before the 19 & 20 Yict. e. 108, constituted so large a proportion of the business of this Court, were thereby wholly transferred to the new County Court ; and therefore they, as well, require no further notice. The Court is not a Court of record,^ except as to Not of re- matters of outlawry.- The style of it is— "W. to wit, S'oSw. the (1st) County Court of M. A., Esq., sheriff of the county aforesaid, held at C." It holds plea by plaint, or by writ of justicies, which is ia the nature of a commission out of Chancery, empowering him to hold plea in any personal action (not being vi et armis), to any amount.' By the 9 Hen. 3, c. 35, and 2 Edw. 6, c. 23 (as Time of ■' ^ holding regards England) ; by the 34 Hen. 8, c. 26, s. 73 Court, (as regards Wales) ; and by 33 Hen. 8, c. 13 (as to Chester), not more than one lunar month must inter- vene between Court and Court :* and by the 7 & 8 WiU. 3, c. 25, aU County Courts held for the county of York, or any other County Courts, which hereto- fore used to be held on a Monday, shaU be called and begun upon a "Wednesday, and not otherwise : any custom or usage to the contrary notwithstanding. It may be held by adjournment on a Monday. The Court must be held on a day certaiu : because of the writs of exigent, which are to be proclaimed and read 1 8 Co. 41. County, C. 1. 2 Dalt. ch. 109. * See 2 Inst. 71 ; Dalt. oh. 3 lb. ; Com. Dig., tit. 109. Digitized by Microsoft® 40 JTJDICIAIj DTJTIES. there/ and upon wHch the coroner, as we have said, sits with 'the sheriff at the Court, when reqiiired, to give judgment in outlawry. ' Place. By the common law, the Coiirt may be holden at any place, so that it be within the county.^ But in certain counties it must, by statute, be held at particular places. In England — for Northumber- land, in the town or castle of Alnwick :^ Sussex, at Chichester and Lewes alternately:' Cheshire, in the shire hall:* Monmouthshire, at Monmouth and Newport alternately.^ In Wales — ^Brecknockshire, at Brecknock: Eadnorshire, at New Eadnor and Presteign : Montgomeryshire, at Montgomery and Machynlleth : Denbighshire, at Wresham,^ Outlawry. To carry outlawry into effect in this Court is partly the duty of the sheriff and partly that of the coroner. The former acts in a ministerial, the latter in a judicial character. The former executes, returns writs, makes proclamations, &c.; the latter pronounces judgment of outlawry. Exigi Facias? Victoria &o. to the sheriff of greeting ; We command you that you cause C. D. late of ■ in the ooimty of farmer to be demanded from husting to husting \}f hi. Zondon; if not, smj "from County Court to County Court"] until according to the law and custom of England he be out- lawed if he do not appear : and if he do appear then that you take him and him safely keep so that you may have his body before us [C. P. "before our justices"; Exch. "before the barons of our said Exch."] at Westminster on to answer to A. B. in an action of contract at the suit of the said A. B. and whereupon you returned to us [C. P. "to our justices"; Exch. "to our barons"] at Westminster on last past that the 1 Dalt. oh. 109. 6 n, ^ lb. ' The distringas is abo- 3 19 Hen. 7, u. 24 ; Dyer, lished by the Common Law 135. Frocedm-e Act, 15 & 16 Vict. « 33 Hen. 8, u. 13. c. 76, s. 24. 5 27 Hen. 8, u. 26. Digitized by Microsoft® COTINTY COrHT. 41 said C. D. was not found in your baiKwiok and that he had nothing in yoi%'baili'wiok by -which he oonld be distrained and have there this writ. Witness &o. This writ, "wMcL. is now very rarely issued, may be sued out on a return of non est inventus to an order of arrest or attachment. It requires the sheriff to call the party from County Court to County Court, or from hustings to hustings (as the case may he), until he is outlawed. If the sheriff neither bring ia the- party on a caption, nor render before the outlawry, nor render a complete outlawry at' the time when the writ of exigent is returnable, he has not done his . duty.^ "Where there is neither a caption nor a render, the sheriff, having the writ in his possession,^ at five successive^ courts exacts or calls the party, in the following manner : — C. b. appear and answer A. B. in a svdt for the recoTery of £ , or judgment of outlawry [or "waiver"] will be pro- nounced against you. After the exactions have been' made, if the defen- dant appears before the return of the writ, a super- sedeas issues to stay proceedings in the sheriff's office; if he do not appear, then the coroner, taking the exigent in his hand, pronounces Judgment of Outlawry. Forasmuch as C. D. the defendant named in this writ of exigent hath been duly exacted at five successive County Courts \or "hustings"] and hath not appeared nor been taken nor rendered his body to the sherifE of this county of W. Therefore we pronounce Viiiri outlawed [or "waived "].* After judgment pronounced, the writ, together with the judgment, is returned to the custos brevium. The 1 S. V. Tandell, 4 T. E. ^ 2 B. & C, supra. 633 ; 2 B. & C. 353. * This judgment need not ' Volet V. Waters, 3 D. & besignedbythe coroner; JJ. v. E. 55. Yandell, i T. E. 533. Digitized by Microsoft® 42 JUDICIAL DUTIES. clerk of the outlawries, on receiving the exigent and return thereto, will make out a writ of capias utlaga- tum, directing the sherifE, if necessary, to seize also the goods, &c. of the outlaw, which hy the judgment become forfeited to the Crown.' Return to Exigi Facias. By -virtue of tHs writ to me directed at my Comity Court held at in and for tlie county of on tlie "day of [in London, "at tlie busting of pleas of land holden in the Gruildhall of the city of London on "] in the year within written the within-named C. D. was a first time demanded and did not appear : And at my County Court held at aforesaid on the day of in the year aforesaid the said C. D. was a second time demanded and did not appear ; And at my County Court held at afore- said on the day of in the year aforesaid the said C. D. was a third time demanded and did not appear : And at my Comity Court held at aforesaid on the day of in the year aforesaid the said C. D. was a fourth time demanded and did not appear : And at my County Court held at aforesaid on the day of in the year aforesaid the said C. D. was a fifth time demanded and .did not appear : Therefore by the judgment of Esq. coroner of our sovereign lady the Qneen for the county aforesaid the said C. D. according to the law and custom of England is out- lawed. The answer of sheriff.^ If not at all in the time of tlie same sheriff, thtis : By virtue of this writ to me directed at my [&o. and conolwde his return with "The answer of ■ sheriff" and conclude by stating the times when called by the present sheriff thus ;] This writ so indorsed was delivered to me the present sheriff by the above-named sheriff on his going out of office. At my County Court, &c. The answer of sheriff. Where the Defendant appears. By virtue of this writ to me directed at my County Court held at in and for the said county of on the day of A.n. the within-named C. D. was a first time demanded ; and then and there appeared and then rendered himself into my custody ; whose body I have ready before our lady the Queen at the day and place within contained as within I. am commanded. The answer of sheriff. ' 33 & 34 Vict. 0. 23, s. 1; "- SeeM'Tagyarty. Wedder- post, Ch. IV. burn, 2 D. & L. 580. Digitized by Microsoft® COTINTT COURT. 43 Allocatur Exigent. Victoria &c. : We oommand you that allowing those County Courts \or "hustiags"] atwMoli C. B. late of was demanded and did not appear as you returned to us [" to our justices" or " to the barons of our Exchequer"] at West- minster on last past you cause the said C. D. to be further demanded from Comity Court to County Court until according to the law and ciistom of England he be outlawed if he do not appear ; and if he do appear then that you take him and him safely keep so that you may have his body before us [" before our justices" or "before the barons of our said Exoh."] at W. on to answer A. B. in an action of at the suit of the . said A. B. and have there this writ. Witness &c,i Capias Utlagatum. Victoria &o. : We command you that you omit not by reason of any liberty of your baUiwiok but that you enter the same and take C. 1). late of being outlawed in your said county on &c. at the suit of A. B. of [»/ the writ issue into a count!/ different from that in which the defendant was outlawed say " as our sheriil of returned to us (or in G. P. 'to our justices' or in JExch. 'to our barons of our Exchequer') at W. at a certain day now past"] if he shall be found in your baili- wick and bim safely keep so that you may have his body before us [or "before our justices" or "before the barons of our said Exch."] at W. on &c. to do and receive what our said Court ["or "justices" or "barons"] shall consider of him in this behalf and have there this writ. Witness &c. Return. The execution of this writ appears in a certain inquisition to this writ annexed. Inquisition thereon. W. to wit. An inquisition indented taken at in the county of W. on the day of in the year of the reign of our sovereign lady Victoria before me sherifi of the said county by virtue of the Queen's writ to me directed and to this inquisition annexed uponthe oath of A. B., C. D., E. E. &o. honest and lawful men of my bailiwick who being' sworn and charged to inquire of aU such matters and things as in the said writ are mentioned and contained on their oath say that C. D. in the said writ to this inquisition annexed on on which day he was outlawed in the said county at the suit of A. B. in an action of whereof he is convicted was and yet is possessed of the goods and chattels following that is to say 1 A writ of proclamation is not necessary. Cro. Jac. 577. Digitized by Microsoft® 44 . juDiciAi DnrES. of the value of £ • as of Ms own proper goods and chattels [or ' ' had nor hath any goods or chattels in my bailiwick to the knowledge of the said jurors"}: And the jurors aforesaid upon their oath aforesaid do further pay that the said C. D. on last past (on which day he was outlawed as aforesaid) was and yet is seised in his demesne as of fee [as the case may he"] of and in one messuage and 100 acres of land with the appurtenances situate iu the parish of in the said county now in the tenure and occupation of T. E. of the yearly value of £ in aU issues heyond reprises : all and singular which said goods chattels tenements and premises I the said sheriff by virtue of the said writ on the said day of the taking of this inquisition have taken and caused to be seized into the hands of our said lady the Queen as by the said writ I am commanded : And the jurors aforesaid upon their oath aforesaid do further say that the said 0. D. on last past (on which day he was outlawed as aforesaid) or at any time afterwards had not nor hath he any other or more goods chattels lands or tenements in my bailiwick to the knowledge of the said jurprs. In witness whereof as well I the said dierifi as the jurors aforesaid have severally set our respective seals to this inquisition on the day and year and at the place aforesaid. [Signatures and seals of the sheriff and Jurors.^ ^ Section II. COUNTY OOITET FOE THE ELECTION OE CORONER. Coroners, or Crowners, are of three kinds. Coroners: — 1. Virtute officii. 2 Virtute cliartse sive commissioms. 3. Yirtute electionis.'' The two first divisions of the subject may he passed over, because the sheriff has nothing to do with their appointment. County Coroners virtute electionis alone come vsdthin his province. In short, he is the returning officer at their election. They are chosen by a majority Electors. of such freeholders within the county as are at the • As soon as the inquest is lawry is in a civil suit, the taken, the sheriff takes posses- landlord is entitled to a year's sion of the property found by rent ; 7 T. R. 264. it, and returns the writ and * See Hawk. P. C. b. 2, inquisition. He has no right ch. 9 ; 1 Bl. Com. 346 (Edit, to poundage. When the out- Christian). Digitized by Microsoft® COUNTY COUET (cOEONEE). 45 ■time of the election resident within the coimty or district for -which the election tates place.^ By 14 Ed-w. 3, st. 1, c. 8, it is enacted "that no coroner Quaiiflca^ he chosen unless he have land in fee sufficient in the ""' same county whereof he may answer to aU manner of people." And the 28 Edw. 3, c. 6, which confirms to the shires the power of electing coroners, and the subsequent acts regulating the procedure save to the Crown and to lords of franchises their right of making coroners, as they had done before. If one prove insufficient to answer for the fines, &c., the county, as superior, must answer for his mis- carriage.'' As the coroner is chosen by writ, and not created Detennina^ by patent, his offi.ce is not determined by demise of the Sovereign.^ He may appoint a deputy, whose office determines Deputy, on the demise or removal of the coroner himself ; so that in the case of a county possessing only one coroner there is, on his demise, no one to discharge the office pending the election of his successor. A county may at any time be divided into districts Disfxiots. by her Maj esty in Council, on petition of the justices of such county, if it seems expedient to them, and places may be appointed in each district for the election.* London, the Cinque Ports, and Westminster, have their own coroners. In the Stannaries in Cornwall the wardens are coroners.^ The Bishop of Ely has the appointment of the coroners in the Isle of Ely. The coroner of the Admiralty is appointed by the Lord High Admiral. That of the Verge by the Lord High Steward, for the time being.^ 1 7 & 8 Vict. 0. 92, s. 9. * 7 & 8 Vict. o. 92, s. 4. 2 2 Inst. 174; 2 Hale, P. ° 34 & 35 Hen. 8, c. 26; C. 66. - 2 Hale's P. C. 56. 3 Dyer, 165 a. « Ibid. Digitized by Microsoft® 46 JUDICIAIi DT7TIES. l^daTitof Upon the death, resignation, or removal of the coroner, the first step to be taken by the candidate ■who wishes to apply for the writ, is to make or get an affidavit of the death, resignation, or removal (as the case may be) of the late coroner. It is sworn before a commissioner to administer oaths in Chancery. Affidavit. In Chancery. A. B. of the parish of M. in the county of W. gentleman maketh oath and saith that G. T. late one of the coroners of the said county departed this life [resigned or was removed by the Lord Chancellor,^ as the ease may ic] on or about the day of last past. Sworn, &c. A. B. The affidavit, when sworn, is annexed to a petition, which must be subscribed by freeholders of the county. Petition. To the Eight Honble. the Lord High Chancellor of Great Britain. . The hxmihle petition of us whose names are hereunto sub- scribed freeholders of the county of W. on behalf of ourselves and others freeholders of the said county Sheweth That G. T. late one of the coroners for the said county of W. departed this life [or S;o. as the case may fe] on or about the day of as by the affidavit hereimto annexed appears. And that it wiU be for her Majesty's service and general good of the said county to have a proper person elected coroner in the room and stead of the said G. T. deceased: Tour petitioners therefore most humbly pray your lordship's order that a writ de coronatore eUgendo do issue for the election of a new coroner for the said comity of W. in the room and stead of the said G. T. deceased. And your petitioners will ever pray &c. The petition and affidavit is to be lodged with the clerk of the crown in chancery; with whom the 1 See 23 & 24 Vict. c. 116, s. 6. Digitized by Microsoft® COUlfTY COTIBT (cOEONEe). 47 agent signs an nndertating prepared agreeably to tlie writ engaging "that due notice shall be given in all the market towns of the time and place for the execution of the writ six days before the execution." The clerk gets the writ sealed, and it is then de- livered to the sherifE. Writ de Coronatore EUgendo} The Queen to the sherifE &c. Because L. one of our coroners in your county is dead as we have received information we conunand you if it be so that then in your full county ■with the assent of the same county you cause to be chosen in the place of hnn the said L. one other coroner according to the form of the statute thereof set forth and provided who having taken the oath (as the custom is) from thenceforth shall do and keep those things which belong to the office of coroner in the county aforesaid and cause to be chosen such a person who best may know and be most able to discharge that office and make known to us his name. Witness &c. The proceedings at the election and the sheriff's Election. duty therein are regulated by the 7 & 8 Yict. c. 92, as amended by the 23 & 24 Vict. c. 116. They enact Tobeheiain (amongst other things) that upon every election to be made of any coroner or coroners for any county, the sheriff of the county where such election shall be made shall hold a Court for the same election at some convenient place within the district for which the election of coroner shall take place, on some day to be by him. appelated, -which day shall not be less than seven days nor more than fourteen days after the receipt of the writ de coronatore eKarendo ; and ^ election ...... . , not deter- in case the said election be not then determined upon mined on the the view with the consent . of the electors there proceed to present,, but that a poll be demanded for deter- mination thereof, then the said sheriff, or in his absence his under-sheriff, shall adjourn the same 1 F. N. B. 163. Digitized by Microsoft® take a poll. 48 JUDICIAli DtJTIES. Duration of poU. ria«es for the taking of poll. Slieriif may erect polling booths for taking the poll at. No voter to poll out of the district where his property- lies. Court to eight of the clock in the forenoon of the next day hut one, unless such next day but one shall he Saturday or .Sunday, and then of the Monday following; and the said sheriff, or in his absence the Tinder-sheriff, or such others as shaU he deputed by him, shall then and there proceed to take the said poll in some public place or places ; and such polling shall continue for one' day only, for eight hours in such day; and no poll shall be kept open later than four of the clock in the afternoon of the said day.^ That for more conveniently taking the poll at all elections of coroners, the poU shall be taken at the place to be appoiated for holding the Court for such election, and at such other places as may, for the time being, be appointed by the quarter sessions.^ That at every contested election of coroner, the sheriff, under-sheriff, or sheriff's deputy shall, if required by or on the behalf of any candidate on the day fixed for the election, and, if not so required, may, if it shall appear to him ex- pedient, cause a booth or booths to be erected for taking the poU at the Court or principal place of election, and also at each of the'polHng places within the district hereinbefore directed to be used for the purposes of such election, and shall cause to be afiixed on the most conspicuous part of each of the said booths the names of the several parishes, town- ships, and places for which such booth is respectively allotted; and no person shall be admitted to vote at any such election in respect of any property situate in any parish, township or place, except at the booth so allotted for such parish, township or place, and if no booth shall be allotted for the same, then at any 23 & 2i Viot. c. 116, s. 2. « Sect. 11. 7 & 8 Vict. 0. 92, s. 10. Digitized by Microsoft® COtTNTT COTJET (cOEOlfEE). 49 of the tooths for the same districts ; and in case any in case of a parish, township or place, or part of any parish, moiudea:% township or place, shall happen not to be included ^y^'*^"'- in any of the districts, the votes in respect of property situate in any parish, township or place, or any part of any parish, township or pla,ce so omitted, shall be taken at the Court or principal place of election for such district of the said county.' And for the more Poll clerks to due and orderly proceeding in the said poU, it is amlswOTi. enacted, That the said sheriff, or in his absence the under-sheriff, or such as he shall depute, shall appoint such number of clerks as to him shall seem meet and convenient for the taking thereof, which clerks shall take the said poll in the presence of the said sheriff or his under-sheriff, or such as he shall depute ; and I before they begin to take the said poll, every clerk so appointed shall by the said sheriff or his under- , sheriff, or such as he shall depute as aforesaid, be sworn truly and indifferently to take the same poU, and to set down the names of each elector, and the place of his residence, and for whom he shall poll, and to. poll no elector who is not sworn, if required to be sworn by the candidates or either of them; and which oaths of the said clerks the said sheriff or his under-sheriff, or such as he shall depute, shall have authority to administer; and the sheriff, or in his lospeotorof absence his under-sheriff, as aforesaid, shall appoint for each candidate such one person as shaU. be nomi- nated to him by each candidate to be inspector of every clerk who shall be appointed for taking the poll ; and every elector, before he is admitted to poU Electors to ■'■ . . . ue sworn. at the same election, shall, if required by or on behalf of any candidate, first take the oath herein- after mentioned, which oath the said sheriff, by 1 Sect. 12. A. E Digitized by Microsoft® 50 JUDICIAL DUTIES. Mmself or Ms under-sheriff, or such s-wom clerk by Mm appointed for taMng the said poll as aforesaid, shall have authority to administer (that is to say) : " I swear [or iemg one of the people called Qjuilcers, or entitled hy Imo to make affirmation "Bolemiily affirm"] that I am a free- holder of the comity of and have a freehold estate con- sistiug of lying at -within the said comity ; and that such freehold estate has not heen granted to me fraudu- lently or oolourably on purpose to qualify me to give my vote at tlus election ; and that the place of my abode is at \md if it be a place consisting of more streets or places than one ■ specifying what street or place"] ; that I am twenty-one years of age, as I believe ; and that I have not been before polled at this election, [adding, except in cases of solemn affirmations,] So help me God.' Custody of poll books, and final declaration of the poll. licpeases of sheriff, &c. to be paid liy the can- (lidates. ^'That the poll clerks shall, at the close of the poll, inclose and seal th«ir several hooks, and shaU. publiely deliver them, so inclosed and sealed, to the sheriff, under-sheriff, or sheriff's deputy presiding at such poU, who shall give a receipt for the same ; and every such deputy who shall have received any such poU. hooks shall forthwith deliver or transmit the same, so inclosed and sealed, to the sheriff or Ms under-sheriff, who shaU receive and keep all the poll books unopened unto, the reassembling of the Court on the day next but one after the close of the poll, unless such next day but one shall be Sunday, and then on the Monday following, when he shall openly break the seals thereon, and cast up the number of votes as they appear on the said several books, and shall openly declare the state of the poll, and shall make procla- mation of the person chosen, not later than two of the clock in the afternoon of the said day.* That all the reasonable costs, charges and expenses wMch the said sheriff, or Ms under-sheriff or other deputy, shall expend or be liable to, in and about the providing of 1 Sect. 13. Sect. 15. Digitized by Microsoft® COTJNTY C0T7ET (cORONEK). 51 poll books, bootlis and clerks (sucIl clerks to Tbe paid not more than one guinea each for each day), for the purpose of taking the poU at any such election, shall he borne and paid by the several candidates at such election in equal proportions.' , "1 The 7 & 8 Vict. e. 92, did not apply to the county of To what Chester, or any county palatine, city, borough, town, lote Ltena. liberty, franchise, part or place, the appointment or election of coroner whereof takes place by law other- wise than under th^ writ de coronatore eligendo;^ but the county of Chester was put under the general law by the 23 & 24 Vict. c. 116, s. 7. Notice of Election. The sheriff of the county of W. mil at 8 o'clock in the morning of the day of now next ensiling hold a Court at the Moot HaU for the election of a coroner for the said county in the room of Gr. T. deceased at which time and place the sheriff requests the attendance of the freeholders of the said cotmty. At the time and place mentioned in the above notice, the sheriff, or, in his absence, the under-sheriff, orders the bailiff to make Proclamation. All manner of persons who have anything to do at this election of coroner for the county of W. let them draw near and give their attendance. * i The sheriff, or, in his absence, the under-sheriff. Mode of then briefly explains the object of his holding the coratl^ Court, reads the writ, and aSks if there be any candi- date for the vacant office. The candidate (if any) is then proposed and seconded by freeholders. If there be no contest, the election is at once determined on the view; and, after the iiecessary forms as to the return, &e. are perfected, the Court is dissolved in the usual way. But, if a poll be demanded, the sheriff, 1 Sect. 16. 2 Sect. 27. e2 Digitized by Microsoft® JimiCIAI, DUTIES. Baid E. W. aa the maimer is hath made declaration to do and keep those things which to the ofEoe of coroner in the said county doth belong as I am -within commanded. The answer of . Section IH. WHIT OF mQUIE'S". A writ of inquiry is an inquest of office to inform the conscience of the Court as to the amount of damages in an action where the plaintiff has obtained judgment by def aiilt or on demurrer, and where the claim is not for a debt or liquidated demand in money. The Court may itseK assess the damages in such eases, and, in fact, the more usual course is to refer the question to one of the official referees or masters, where the amount of damages is substantially a matter of cal- culation ; but, where it appears that the matter may be more conveniently tried by a jury, a writ of inquiry may be issued, directed to the sheriff of the county in which the action woidd have gone to trial. The writ commands that because it is unknown to the Coxu-t what damages the plaintiff hath sustained, the sheriff shall by the oath of twelve good and lawful men of his baiKwick inquire what claim the plaintiff hath, as well in respect of the causes of action as for his costs and charges incurred. It is tested on the day of issue, and usually made returnable immediately after execution thereof. Eight days notice should be given of the time at which the inquiry wiU be held;^ and where the defendant cannot be found, the Court may make an order for substituted service. Jury. The sheriff must summon a jury from the ordinary > As to notice, see E. G-., Hil. T. 1853, r. 34, et seq. Digitized by Microsoft® WEIT OF INQTnilT. 55 jury book ' in use for trials at nisi prius ; or he may be directed to sununon a special ittry,'' The inquest is generally held before tlie under- Before sberifi himself, but the sheriff may appoint a deputy for the purpose, and if the case presents any unusual difficulty; or if the facts are important it may, by leave of the Court or a judge, be executed before a judge. "When that is so, he acts ministerially, in aid of the sheriff. If the venue be laid in Middlesex or in London, it may be executed before the chief justice, or the chief baron.' It is usually executed in the county in which the Where. action was proposed to be tried, but by special leave it may be executed elsewhere. It may be executed the same day that it is made returnable. To execute this writ, he must, at once, enter all Howexe- . cuted. liberties or franchises.* The Court will not stay the execution of this writ, at the instance of any person, unless such person be a party to the suit. For in- stance, it would not do so on the motion of the sheriff, although he could show that in executing it his per- sonal liberty was in danger from the warrant of the Speaker of the House of Commons or the like.'' A warrant to the baUiff is not necessary. The sheriff may give verbal instructions to sununon a jury to attend at the appointed time and place. He should summon more than the twelve required, be- cause it may happen that one or more are challenged. It is in the discretion of the sheriff to admit the ' 6 Geo. 4, 0. 50, s. 52. counsel would probaibly be ^ Price V. Williams, 5 Dowl. allowed on taxation, contrary 160. to the usual rule. 3 See Green v. Frice, 13 M. * Hob. 83 ; ante, p. 34. & W. 700 ; 16 ib. 350. In * StocMale v. Smsard, 9 these cases the costs of two A. & E. 1. Digitized by Microsoft® JUDICIAIi DTTIES. said E. W. as the maimer is hath made declaration to do and keep those things which to the office of coroner in the said county doth belong as I am within commanded. The answer of . Section m. WRIT OF maurRf. A writ of inquiry is an inquest of oJ6B.ee to inform fixe conscience of tlie Court as to tlie amount of damages in an action vliere tlie plaintiff lias obtained judgment by default or on demurrer, and where the claim is not for a debt or Hquidated demand in money. The Court may itseK assess the damages in such cases, and, in fact, the more usual course is to refer the question to one of the official referees or masters, where the amount of damages- is substantially a matter of cal- culation ; but, where it appears that the matter may be more conveniently tried by a jury, a writ of inquiry may be issued, directed to the sheriff of the county in which the action would have gone to trial. The writ commands that because it is unknown to the Court what damages the plaintifE hath sustained, the sheriff shall by the oath of twelve good and lawful men of his bailiwick inquire what claim the plaintiff hath, as well in respect of the causes of action as for his costs and charges incurred. It is tested on the day of issue, and usually made returnable immediately after execution thereof. Eight days notice should be given of the time at which the inquiry will be held;^ and where the defendant cannot be found, the Court may make an order for substituted service. Jury. The sheriff must summon a jury from the ordinary ' As to notice, see E. 0-., HU. T. 1853, r. 34, et seg. Digitized by Microsoft® WRIT OF INQtriRY. 5.5 jury book ' in use for trials at nisi prius ; or lie may be directed to summon a special jury," The inquest is generally held before the under- Before sheriff himself, but the sheriff may appoint a deputy for the purpose, and if the ease presents any unusual difficulty, or if the facts are important it may, by leave of the Court or a judge, be executed before a judge. "When that is so, he acts ministerially, in aid of the sheriff. If the venue be laid in Middlesex or in London, it may be executed before the chief justice, or the chief baron.^ It is usually executed in the county in -which the Wiia-e. action was proposed to be tried, but by special leave it may be executed elsewhere. It may be executed the same day that it is made returnable. To execute this writ, he must, at once, enter all Howexe- . cuted. liberties or franchises.* The Court will not stay the execution of this writ, at the instance of any person, unless such person be a party to the stdt. For in- stance, it would not do so on the motion of the sheriff, although he could show that in executing it his per- sonal liberty was iu danger from the warrant of the Speaker of the House of Commons or the like.* A warrant to the bailiff is not necessary. The sheriff may give verbal instructions to summon a jury to attend at the appointed time and place. He should summon more than the twelve required, be- cause it may happen that one or more are challenged. It is in the discretion of the sheriff to admit the ^ 6 Geo. i, c. 50, s. 52. counsel would probably be ^ Price T. Williams, 5 Dowl. allowed on taxation, contrary 160. to the usual rule. 3 See Green v. Frice, 13 M. * Hob. 83 ; ante, p. 34. & W. 700; 16 ib. 350. In * StocMaU v. Samsard, 9 these cases the costs of two A. & E. 1. Digitized by Microsoft® issues. 56 JTTDICIAI, DtFTIES. challenge, if he consider that it is made for siifficient cause.' The mimher of jiirymen at the trial may exceed twelve. Where a writ of the kind was executed, at the bar of the Court of K. B., in an action brought by the Duke of York (afterwards James H.) against Titus Gates, fifteen were sworn upon the jury. They gave the damages laid in the declaration, viz. 100, 000^.^ When writ Where there is judgment by default as to part of the claim, and issue joined as to the residue, or, when one of several defendants suffers judgment by default and the other puts in a statement of defence, or if there be an issue of fact raised in any way, a writ of inquiry is not issued. The damages, in such cases, are assessed by the jury who try the issues.' But a plaintiff having obtained judgment on demurrer for a part of his claim, may have a writ of inquiry as to that part, provided he abandon the rest.* Where there is a demurrer to part and judgment by default to the residue, the plaintiff may either await the result of the demurrer and then execute a writ of inquiry on both judgments, or he may execute a writ of inquiry at once on the judgment by default and assess con- tingent damages on the demurrer. Inasmuch as the under-sheriff or the sheriff's assessor, as the case may be, is, in general, a man of experience, it is needless — ^indeed if it were other- wise, it would scarcely be possible — in a work like this, to lay down rules for his guidance at the inquiry. Suifice it to say, that it is to be conducted in every 1 Anon. 3 Salt. 81 ; Anon. mained covered. 3 State 6 Mod. 43. Trials, 987. ^ In that case the sheriff ' Dicker v. Adams, 2 B. & of Middlesex sat at the table P. 63. below the judges, and re- * Duperoy v. Johnson, 7 T. B. 473. Digitized by Microsoft® WBIT OF HfQiriET. 57 respect in the same maimer as a trial at nisi prius in ■vrMch. tlie defendant has admitted all the causes of action, and in which, therefore, the only c[uestion in dispute is the amount of damages. To find the true measure of damages and apply Meaameof it IS not always an easy thing to do. Damages are regarded as a compensation and satisfaction for the cause of action alleged. The plaintiff cannot recover more than he has claimed in his statement of claim, unless it he amended hy leave. The parties to a in contract. contract may, hy express agreement, fix or hmit the amount of damages. In that case, the only dispute that can well arise is as to whether the sum agreed upon was really intended to stand as a penalty, to cover any real damage that might arise, and which would not he recoverahle, or to stand as liquidated damages. The rule is — "That where articles contain covenants for the performance of several things, and then one large sum is stated, at the end, to be paid upon breach of performance, that must be considered a penalty ; but where it is agreed that if a party do such a particular thing, such a sum shall be paid by him, there the sum stated may be.treated as liquidated damages; and there is one case in which the sum agreed for must always be considered as a penalty — that is, where the payment of a smaller sum is secured by a larger." ' Por the non-payment of a debt the law limits the damages to the amount of the debt and interest. In some other cases of contract this has been laid down — ^that they are " either such as may fairly and substantially be considered as arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably ' Kemble v. Farren., 6 Biag. 141 ; Ex parte Capper, 4 Ch. D. 724. Digitized by Microsoft® 58 JUDICIAL DITTIES. be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." ' The motives and conduct of the party charged with a breach of contract, except the contract of marriage, do not affect the amount of damages. They must not, in any case, be too remote — ^that is to say, they must arise out of the cause of action, and immediately, and naturally, that is, according to the usual course of things. Damages arising subsequent to the commencement of the action may be taken into consideration when they are the natural result of the act complaiaed of, and when they do not, of themselves, constitute a new cause of action. It is on this principle that interest, by way of damages, is calculated up to the time of iaquiry. In tort. Damages in actions ex contractu are, for the most part, certain, or reducible to a certaiaty, by the mere process of calculation. But actions ex delicto, in a majority of cases, set figures at defiance. In actions for converting or detaining things, the value of the article converted or detained affords a criterion. But in those for trespass or consecLuential wrongs, espe- cially those affecting the person or character of the plaintiff, the circumstances of aggravation or mitiga- tion are so many in number and so different in kind and degree that one can afford little or no aid in another, as to the measure of damages. An instance of this may be found in Merest v. Harvey.^ The action was for trespass qu. cl. fr. The evidence was, in effect, that the plaintiff was on his own ground shooting, when the defendant, an M.P., &c., went up to him in a state of drunkenness, used gross language, ' Hadley v. Baxendale, 9 - 5 Taunt. 442. Exoh. 341. Digitized by Microsoft® ■milT OF mUTOKY. 59 and shot before him. The plaintiff, on the other hand, demeaned himself like a gentleman. There was no pecuniary damage, beyond what the law inflicted for the trespass on the land; yet the jury gave 5001. damages: and the Court refused a new trial. In the sam.e case one of the judges said: "I remember a case where a jury gave 500Z. damages for merely knocking a man's hat off." In this very case, as we do in some others, we read of exemplary damages. But it is, at best, an unguarded expression. The law knows no such thing as "exemplary" damages. The jury, in the cases cited, gave no damages for example's sake — ^they gave compensation and satisfaction to the plaintiff for a trespass committed under and attended with circiunstanees of very great aggravation. "We have before stated, in the passage which refers Prospective to prospective damages in actions of contract, when they may be recovered. So in actions ex delicto they are recoverable, also, whenever the prospective loss could not be the subject of a fresh action. ladeed, where no other action will lie for them, they not only may but must be, if ever, recovered at once.' If the assessment of damages be under Lord Unaer LoTd ^ Campbell's Campbell's Act (9 & 10 Vict. e. 93), it must be borne Act. in mind that the action is brought in the name of the executor, but the jury are to give damages to the parties, respectively, for whose benefit the action is btought. It requires the jury therefore to look to the interests of each of the parties. This is well exemplified in Pym's case.^ The widow not only did not suffer, but did, in fact, largely benefit in a pecuniary point of view by her husband's death; but 1 Bonomi v. Backhouse, 28 Western Sail. Co., 32 L. J., L. J., Q. B. S1»; Whitehouae Q. B. 113. v.Js^fctvs, SOL. J.,C.B. 305; ^ 32 L. J., Q. B. 377; Croft V. London and North Blake's case, 18 Q. B. 93. Digitized by Microsoft® 60 J-DDICIAl DTTTIES. the younger cHldTeii lost hj Ms death, the reasonable probability of pecuniary benefit. The jury, so directed, found a verdict for 13,000J. : and they apportioned it (as they are required by the Act to do) iu this way : they assigned 1,000/. to the widow and l,500Z.to each of the younger children. These sums were afterwards reduced, at the suggestion of the Court, but the above principle of assessment was not iu any way affected by what the Court suggested. It was only a suggestion thrown out as a means of preventing further litigation. Meiurn. The execution of this writ appears in the inquisition here- unto annexed. The answer of high sheriff. W \ An inquisition indented taken at on before to wit. ) sheriff of the county aforesaid by Tirtue of a writ of our Lady the Queen to the said sheriff directed and to this inquisition annexed to inquire of certain matters in the said writ specified by the oaths of A. B. C. [names of the jurors'] honest and lawful men of the said county who being chosen tried and sworn upon their oath say that A. B. in the said writ named hath sustained damages to the amount of £ besides his costs and charges by bim about his suit in that behalf expended and for those costs and charges to 40s. \or "that the arrears of rent due from the said C. D. to the said A. B. on the day of that is say at the time of such distress taken amounted to the sum of £ and the jurors aforesaid upon their oath aforesaid further say that at the time of the distress taken the value of the cattle distrained was £ ■ ."] In witness whereof as well I as the said jurors have set our hands and seals to this inquisition the day and year above written. SEOTioif rv. COMPENSATION COUET. This is a Court wherein the sheriff, personally or by deputy, presides, to assess compensation to a person whose property is to be taten from him or to be injuriously affected by the eiaecution of some public works under the powers of an Act of Parliament. The Court was unknown to the common law. To Digitized by Microsoft® COMPENSATION COTJET. 6l the language of tlie legislature, therefore, we must always look for instruction : whether the q[uestion he one of form or suhstance, whether it relates to the rights of the parties, the nature of the compulsory power, or to the jurisdiction and duties of the sheriff. Ill the year 1845 it was found expedient to com- General prise in General Acts, sundry provisions relating to the construction, constitution and management of the acquisition of lands required for undertakings or works of a public nature, and the compensation to he made for the same. This was done as well for the purpose of avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves. The General Acts are " The Companies Clauses Consolidation, Act, 1845 " (8 & 9 Vict. c. 16),i " The Lands Clauses Consolida- tion Act, 1845" (8 & 9 Vict. c. 18), and " The Eail- ways Clauses Consolidation Act, 1845" (8 & 9 Vict. c. 20). Each of them (save so far as it may he ex- pressly varied or excepted by any particular Act) is to he incorporated with such particular Act, form part of such particular Act, and be construed together therewith, as forming one Act. When the promoters of the undertaking require to ?°^^ *° purchase any land under the powers of their Act of Parliament, they must give notice to all persons ia- terested in such land demanding particulars, and statiug that they are willing to treat ; '" and when this notice is served on the owner his power of dealing with his property, or of parting with it to third persons, is concluded.' 1 The 8 & 9 Vict. o. 16 is afEected, so far, by the 26 & not affected by the 26 & 27 27 Viet. c,'92. Vict. 0. 118 as regards any- ^ 8 & 9 Victl c. 18, s. 18. thiag contained hereia. Nor ^ Ex parte Edivards, L. K., is the 8 & 9 Vict. u. 20 12 Eq. 389. Digitized by Microsoft® 62 JTrDICIAl DUTIES. Notice of trial by jury. Company's warrant to summon jury. "Where slieriff interested. At one time an idea prevailed that a notice to treat created the relation of vendor and purchaser ; but it has been overruled, and decided that it does not constitute a contract. But it has the effect of pre- venting either party getting rid of their obligation ; the one to take and the other to give up the lands specified in the potice.^ The owner then sends ia his particulars of claim, and ia a question of disputed compensation the pro- moters of the undertaHng must (if no application be made for a trial at nisi prius under the 31 & 32 Vict. c. 119) give a ten days' notice to the other party of their intention to cause a jury to be summoned for settling the amount;^ this notice should state what amount of compensation they are -willing to pay. They are then to issue their Trarrant to the sheriff, requiring him to summon a jury for that purpose,' and the -warrant should be under the common seal of the promoters of the uxtdertaking, if they be a cor- poration, or if they be- not a corporation, under the hands and seals of anyt-wo of them; and, "if the sheriff be interested in the matter in dispute, appli- cation is to be made to some coroner of the county, in -which the lands in question or some part thereof shall be situate, and, if all the coroners of such coimty be so interested, application may be made to some person having filled the office of sheriff or coroner in such county, and who shall be then living there, and -who shall not be interested in the matter in dispute. With respect to the persons last men- tioned, preference shall be given to one who shall have most recently served either of the said offices. ' Hayne's case. Dr. & Sm. 426 ; Woodhome's case, 34 L. J., Oh. 297. = 8 & 9 Vict. c. 18, s. 38. 3 lb. s. 39. Digitized by Microsoft® COMPENSATION COTJKT. ' 63 And every ex-sheriff, coroner or ex-coroner shall have power, if lie think fit, to appoint a deputy or assessor." But as this direction, in respect of the interest of the sheriff, is introduced for the protection of the party against whom the interest might operate, such person may waive it.' He does not waive the objection by appearing and conductiag his case if he is at the time of the inquisition unaware of the sheriff's interest. In such a case the inquisition should he removed by certiorari into the High Court and quashed.^ The interest intended by the statute is such as would disqualLEy a justice at common law. If the company gives notice to take the land, and refuses to proceed to arrangement within a reasonable time, the owner may proceed by mandamus or by action for mandamus tinder the Common Law Pro- cedure Act, 1854.' Upon receipt of the warrant the sheriff summons The jmy. a jury of twenty-four iadifferent persons, duly quali- fied to act as common jurymen in the superior Courts, to meet at a convenient time and place to be appointed by him for that purpose : such time not being less than fourteen nor more than twenty-one days after the receipt of such warrant : and such place not being more than eight miles distant from the lands in question, unless by consent of the parties iaterested. He must also forthwith give notice to the promoters of the works of the time and place so appointed by him.* Out of the jurors appearing, a jury of twelve per- sons shall be drawn by the sheriff in such manner as ^ Ex parte BaddeUy, 5 D. London anANorthWestemRail. & L. 577. Co., 9 L. T., N. S. 423. 2 E. V. Sheriff of WarwicTc- ' Fotherby's ease, 36 L. J., shire, 24 L. T. 211 ; E. v. C. P. 89; L. E., 2 C. P. 188. * 8 & 9 Vict. c. 18, s. 41. Digitized by Microsoft® 64 JTIDICIAIi DtrriES. Witnesses. Tiew. Penalties. juries iox trials of issues joined inthe superior Courts are Tby law required to be drawn. If a sufB.cieiit number of jurymen do not appear, the sheriff shall return other indifferent men, duly qualified as afore- said, of the bystanders or others that can speedily be procured, to mate up the jury to the required number. All parties concerned may have their lawful chal- lenges against any of the jurymen, but no such party shall challenge the array. ^ The sheriff presides on the inquiry. The party claiming compensation is deemed the plaiutiff, and has all such rights and privileges as a plaintiff is entitled to in the trial of actions at law,* except with regard to costs. If either party so request in writing, the sheriff shall summon before him any person considered ne- cessary to be examined as a witness touching the matters in question. And, on the like request, the sheriff shall order the jury or any six or more of them to view the place or matter in controversy, in like manner as views may be had in the trial of actions in the superior Courts.' If the sheriff make default in any of the matters to be done by him in relation to any such trial or inquiry, he shall forfeit fifty pounds for every such offence, and such penalty shall be recoverable by the promoters of the under- taking by action in any of the superior Courts. And, if any person summoned and returned upon any jury under this or the special Act, whether common or special, do not appear, or, if appearing, refuse to make oath, or, in any other manner, unlawfully neglect his duty, he shall, unless he show reasonable excuse to the satisfaction of the sheriff, forfeit a sum • 8 & 9 Vict. c. 18, s. 42. " S.r.Garclner,6 A.&,^.m. 3 8 & 9 Viot. 0. 18, s. 43. Digitized by Microsoft® COMPEN'SATION COTJBT. 65 not exceeding ten pounds : and every suoli penalty, payable by a sheriff or juryman shall be applied in satisfaction of the costs of the inquiry, so far as the same will extend. And, in addition to the penalty hereby imposed, every such juryman shall be subject to the same regulations, pains and penalties, as if such jury had been returned for the trial of an issue joiued in any of the superior Courts.^ If the party claiming conipensation shall not appear ciajnumt , . . ? „ , . . , . . notappear- at the time appointed for the inquiry, such inquiry tag. shall not be further proceeded in; but the compensa- tion to be paid shall be such as shall be ascertained by a surveyor appointed by two justices. Before the jury proceed to inquire of and assess the Jnror'soath. compensation or damage, in respect of which their verdict is to be given, they shall make oath thalt they will truly and faithfully inquire of and assess such compensation or damage; and the sheriff shall ad- minister such oath as weU as the oaths of all persons called upon to give evidence." "Where such inquiry shall relate to the value of J™*^^ lands to be purchased and also to compensation assessed. claimed for injury done or to be done to the lands held therewith, the jury shall deliver their verdict separately for the sum of money to be paid for the purchase of the lands required for the works, or of any interest therein belonging to the party with whom the question of disputed compensation shall have arisen, or which, under the provisions therein contained, he is enabled to sell or convey, and for the sum of money to be paid by way of compensation for the damage, if any, to be sustained by the owner of the lands, by reason of the severing of the lands taken from the other lands of such owner, or otherwise 1 8 & 9 Vict. 0. 18, s. 44. '^ lb. s. 48. A. ■e Digitized by Microsoft® 66 JUDICIAL DUTIES. injiiriously affecting such lands by the exercise of the po-wers of the general or the special act, or any act incorporated theremth.' Verdict and And the sheriff, before whom such inquiry shall judgment. ' be held, shall give judgment for the purchase-money or compensation assessed by such jury; and the ver- dict and judgment shall be signed by the sheriff; and, being so signed, shall be kept by the clerk of the peace among the, records of the general or quarter sessions of the county in whieh the lands or any part thereof shall be situate, in respect of which such purchase-money or compensation shall have been awarded. And such verdicts and judgments shall be deemed records.^ There is no provision for the issuing of a writ of execution upon them, but they may be enforced by bringing an action upon them. "On every such inquiry before a jury, where the verdict of the jury shall be given for a greater sum than the sum previously^ offered by the promoters of the undertaking, all the costs of such inquiry shall be borne by the promoters of the undertaking. But if the verdict of the jury be given for the same or a less sum than the sum previously offered by the promoters of the undertaking; or, if the owner of the lands shall have failed to appear at the time and place appointed for the inquiry, having received due notice thereof, one half of the costs of summoning, impaneUing and returning the jury and of taking the inquiry and recording the verdict and judgment thereon, in case such verdict shall be taken, shall be defrayed by the owners of the lands, and the other half by the promoters of the undertaking, and each ' 8 & 9 Vict. 0. 18, s. 49. So = Sayward's case, 33 L. J., also at Nisi Prius, under 31 & Q. B. 73 ; Balls v. Metropolitan 32 Vict. 0. 119, s. 41. Boardof Works, L. E., 1 Q. B. 2 8 & 9 Vict. c. 18, s. 60. 337. Digitized by Microsoft® COMPENSATION COTIRT. 67 party shall bear his own costs, other than as afore- said, incident to such iaquiry".^ If either party desire any such question of disputed Special jury, compensation as aforesaid to be tried before a special jury, such question shall be so tried; provided that notice of such desire, if coming from the other party, be given to the promoters of the undertaking before they have issued their warrant to the sheriff. And for that purpose the promoters of the undertaking shall by their warrant to the sheriff require him to nominate a special jury for such trial. And there- upon the sheriff shall, as soon as conveniently may be after the receipt by liiTn of such warrant, summon both the parties to appear before him, by themselves or their attorneys, at some convenient time and place appointed by him for the purpose of nominating a special jury (not being less than five nor more than eight days from the service of such summons). And at the place and time so appointed the sheriff shall proceed to nominate and strike a special jury, in the manner in which such juries shall be required by the laws for the time being in force to be nominated or struck by the proper oiiicers of the superior Courts; and the sheriff shall appoint a day, not later than the eighth day after striking of such jury, for the parties or their agents to appear before him to reduce the mmiber of such jury, and thereof shall give four days' notice to the parties. And on the day so ap- pointed the sheriff shall proceed to reduce the said special jury to the number of twenty, in the manner used and accustomed by the proper officers of the superior Courts. The special jury, on such inquiry, 1 8 & 9 Vict. 0. 18, s. 51; see 0. P. 122 ; also FitzhardmgeY. Miehardson T. S. B. It. Co., 11 G. ^ B. Carnal Co., L. E., 7 C. B. 169, as to costs under Q. B. 776, carried out in Gra%f sect. 68 ; in error, 21 L. J., v.iV. E. B. Co., 1 Q. B. D. 696. Digitized by Microsoft® 68 jiroiciAL DurrBS. ^landamus. Interest affected. shall consist of twelve of tlie said twenty, wlio shall first appear on the names being called over; the parties having their lawful challenges against any of the said jurymen. And if a full jury do not appear, or, if after such challenges a full jujy do not remain, then, upon the application of either party, the sheriff shall add to the list of such jury the names of any other disinterested persons qualified to act as special or common jurymen, who shall not have been pre- viously struck off the aforesaid list, and who may then be attending the court, or can speedily be pro- cured, so as to complete such jury; all parties having their lawful challenges against such persons. And the sheriff shall proceed to the trial and adjudication of the matters in question by such jury, and such trial shall be attended in all respects with the Kke incidents and consequences, and the like penalties shall be applicable, as provided in the case of a trial by common jury.^ Any other inquiry than that for the trial of which such special jury may have been struck and reduced as aforesaid may be tried by such jury; provided the parties thereto respectively shall give their consent to such trial. No juryman shall, without his consent, be sum- moned or required to attend any such proceeding as aforesaid more than once in any year. The sheriff may be compelled by mandamus to impanel a jury. Sec.'' With regard to the persons entitled to compensation, it may be laid down, as a general rule, that any one whose beneficial interest iu the land taken is injuri- ously affected by the execution of the works is entitled • 8 & 9 Viot. 0. 18, 8. 55. Digitized by Microsoft® - Walker v. 1. ^ B. S. Co., 3 Q. B. 744. COMPENSATION COtTET. 69 to compensation. If no land is taken, tlie statutes give no compensation for depreciation of property.' Eememter always, however, that a jury has no power to determine whether a claunant really has the interest he claims. Its function is simply to assess the damages, assuming the iaterest to be as claimed.^ The question of title may he tried by action on the judgment.^ These Acts give compensation to two classes of persons, namely, to persons interested in lands to be purchased; and to persons claiming compensation for injury done or to be done where land is taken by the exercise of the company's statutory powers. The Damages, anaount of compensation due to the former is, in general, easily ascertained. As regards the latter, the rule to be collected from the cases ia the House of Lords, is this : No case comes within the provision of the statute, unless where some permanent damage has been occasioned to the land itself, in respect of which, before the company had acquired their statutory powers, the complaioing party might have maintaiued an action. But it does not foUow that a party would have a right to compensation in aU cases in. which, if these Acts had not passed, there might have been not only an iadictment but a right of action. The injury- must be actual permanent injury to the land itself, as by loosening the foundation of buildings on it, obstructing its light or its drains, making it less accessible by depriving it of river frontage, or by lowering or raising the ground immediately in front of it, or by some such physical deterioration. It is not required that the land or house of the claimant be touched.* The property may be "injuriously 1 Brand v. Sammm-smifh ^ lb. ; JJ. v. M. S. Co., 32 iJ. Co., L. E., 4 H. L. 171. L. J., Q. B. 367. ^ Brandon's case, 34 L. J., * Eicket v. Metropolitan JR. Ch. 333. Co., 36 L. J., Q. B. 205 ; L. Digitized by Microsoft® 70 JTJDICIAI, DTTTEES. affected" -without that — as by the mere invasion of an easement;' hut he must establish the fact of a pennanent injury to fixed property by reason of the works. The -words "fixed property" are introduced in contradistinction to personal inconvenience, tempo- rary use of property, or the like ; which had been in some cases, before the law was settled, considered ■within the statute. These Acts do not contain any pro-pisions under which a person whose land has not been taken for the purposes of a railway can recover statutory compensation from a railway company in respect of damage or annoyance arisiag from vibration occasioned (without negligence) by the passiag of trains, after the railway is brought into use, even though the value of the property has been actually depreciated thereby;^ but if any part of his land is taken, a foundation is given for a claim for compensa- tion ia respect of injury to adjoining premises which have been injuriously affected.' The jury are not, it is said, to give speculative damages. They woidd not be authorized, it is true, in awarding damages for mere imaginary evils. But, when it is shown that, ia the execution of the works, a certain act is to be or is done, they must, as men ■with reasoning faculties, consider the nature of such act, together with all its probable consec[uences. They may take into account not only the present purpose to which the land is applied, but also any other more beneficial purpose to which in the course E., 2 H. L. 175 ; and see " Brand v. Hammersmith Beckett t. Midland S. Co., L. R. Co., L. R., 4 H. L. 171 ; R., 3 C. P. 82; 37 L. J., C. Sunter t. City of Glasgow B. P. U, approved in JKcCaj-a^v. Co., L. E., 2 H. L. Sc. 78. Metropolitan Board of Works, ^ Duke of Bucclmgh v. Me- L. E., 7 H. L. 243. tropoUtan Board of Works, L. ^■Eagle v. Charing Cross H. E., 5 H. L. 418. Co., L. E., 2 C. P. 638. Digitized by Microsoft® COMPENSATION COURT. 71 of eventB at no remote period it may be applied, just as an owner might do if lie were bargaining with, a purchaser in the market.^ "Reason," sg-ys Bentham, "proceeding on the data furnished by experience, is capable of appreciating the different degrees of pro- bability and reaching that poiat of likelihood, which, in ordinary language, has received the name of moral certainty. The light by which we walk does not manifest to us the first principles of nature or acquaint us with the utmost limits of her power; but it is sufficient for guiding our judgment in the ordinary transactions of Hfe, and judicial decisions rest on the very same foundation." "When the inquiry relates to the value of lands, &c. to be taken, and also to compensation claimed for injury done or likely to be done to lands, the jury are to be directed to return their verdict separately for the two. The omission creates confusion, although a verdict conjunctim. would not be a nullity.^ So, where there are several interests to be compensated for, an assessment in one gross sum would be irregular, if not, in such a case, a nullity.' There is a remedy by new trial when any miscarriage Appeal. of justice arises at nisi prius, where a judge of one of the superior Courts presides : and, therefore, a remedy by new trial when the inquiry is im.der the 31 & 32 Tict. c. 110, s. 41; and yet (strange to say) there is none in important compensation cases that are tried before the sherifiE or his assessor. However, where the sheriff has no jurisdiction, or where the jury include in their verdict something which they were 1 S. T. £rotm, L. E., 2 Q. and B. JR. Co., 6 So. N. C. B. 631 ; Bipley v. G. N. S., 264 ; 8 & 9 Vict. c. 18, s. 63. li. E., 10 Oil. 435. 3 See S. v. The Trustees of 2 In re L. and G. R. Co., 2 the N. and V. Road, 5 Q. B. A. & E. 684 ; Corrigali v. i. 578. Digitized by Microsoft® 72 JUDICIAl DUTIES. not authorized to include, or where they exceed their jurisdiction, as hj determining that the claimant is not entitled to compensation for this or that property, ■when he really is, the Court will issue a certiorari and quash the inquisition, although the statute ex- pressly takes away the writ ; for the statute must be understood to assume that the order has been made by proper authority, and it does not therefore apply where the jurisdiction is exceeded, because in such case the proceedings are not in truth under the Act.^ Warrant.'' M. ) Whereas we the promoters &c. on the day to wit. j of — — A.D. 18 — pursuant to the statute in such case made and provided did cause to be served a certain notice in ■writing under our common seal personally upon which said notice was and is in the words and fig^ures follo'wing' [notice]. And whereas the said hath not accepted the ofBer therein contained or any part thereof and the question of value and compensation etiU remains disputed between us: We do hereby require and command you upon the receipt of this our warrant to summon a jury to determine the said differences and disputes ia the premises ; and herein fail not. Griveu under our common seal this &c. Company's Notice of Inquiry. Take notice that a jury of the county of • — - has been summoned and that an inquest ■will be held upon the value of your interest of and in and the compensation you may be entitled to from us in respect of the public works of the Co. and that the same -wUl be tried on at o'clock a.m. before the under-sheriff of the said comity at the house of commonly called the at in the said county [whei-e cotmsel will attend]. Given under our common seal this &c. To . 1 B. V. Berldey, 1 Kenyon, Middlesex, and in some coun- 99. ties of cities, constituting one 2 When there is but one ofBoer, it ought to be directed person sheriff and he a share- " to the one who is not a share- holder (which they must know holder, and not to the coroner, from their o-wn books), the See Corrigall v. L. and B. R. warrant cannot be directed -to Co., 6 So. N. C. 241; Letsom him, ante, p. 62 ; but when v. BicUey, 5 M. & S. 144. there are two persons, as in Digitized by Microsoft® COMPElfSATIOlT COUET. 73 Sheriff's Notice to Company. Take notice that I ahall hold an inquest and proceed to inquire into tlie value of &c. [«s «Sow] on the day of next at ten o'clock a.m. at A. in the county of W. at the house commonly called ■ when and where you are requested or some one on your behalf to attend. Dated &c. To . high sheriff. Request to summon Witness. We hereby request you to summon on the inquest to be held at on respecting certain matters in difference between us and • one who is a material witness touching the matters in question. Dated &o. To sheriff of . Request to View. We hereby request you to order the jury or any six or more of the jury summoned for the inquest to be held at &c. {as above] to Tiew the place in controversy. Dated &c. To sheriff of . Inquisition, <^c. W. ) An inquisition indented taken at on to wit. j before sheriff of the county aforesaid by virtue of a certain warrant to the said sheriff directed under the common seal of the — — Co. and to this inquisition annexed to inquire of certain matters in the said warrant specified by the oath of [names of jurymen] honest and lawful men of the said county who being charged and sworn upon their oath say that A. B. hath sustained damages to the amount of £ ; and the jurors aforesaid upon their oath aforesaid further say that the value of the interest of the said A. B. of and in &e. amounts to £ . In witness whereof as well I the said sheriff as the said jurors have set our hands and seals to this inquisition the day and year above written. Judgment. Therefore it is considered that the said A. B. do recover against the said company the said several sums of £ and £ ; and the defendant in mercy &c. high sheriff.! ' These must be sent to the clerk of the peace to be filed; 8&9 Viet. 0. 18, s. 50. Digitized by Microsoft® ( 74 ) CHAPTEE THE THIRD. MINISTEEIAL DUTIES. The Bheriff's duties of this kind are, at once, mimerous, delicate, and important. They consist, chiefly of stumnoning juries for the trial of issues, of attendance upon Courts of justice, executing the judgments of those Courts, and conducting elections of members of Parliament. The Courts where his presence, in person or hy deputy, is required, are — 1. The Assize Courts, whether acting under general or special commis- sions ; 2. The Parliamentary Election Court, created by the 31 & 32 Vict. e. 125 ; and 3. The General Sessions of the Peace ; where, however, it is only usual for a bailiff to attend to prove the service of summons on absent jurymen, and of this no further mention will be made. Section I. JURY. There are several sorts of jurors, namely, grand jurors, special jurors, common jurors, a jury of matrons, and a jury of by-standers. Gi-anajury. The first class constitute the grand inquest, or, as more commonly called, the grand jury: as dis- tinguished from the petit jury. All iadictments are preferred to, and presented upon oath by them. To Digitized by Microsoft® JUEY. 75 this end the sheriff of every county is hound to return to the Courts twenty-four prohi et legales homines to inquire, present, do, and execute all those things which, on the part of our lady the Queen, shall then and there be commanded them.^ But although he must summon twenty-four, no more than twenty-three can be sworn upon it. By the common law they must be, it seems, freeholders — but to what amount is uncertain. The grand jury at the sessions of the peace require the quaUfication described in the 6 Geo. 4, c. 60, s. 11: and that of the grand jury in the county of Lancaster (33 Hen. 6, c^ 2) is also fixed at 51. They must be probi et legales homines, in other words, they must not be outlaws, convicts, aliens, persons excommunicated, or the like. As it is only in the nature of an inquiry ^ or accusation, which is afterwards to be tried and determined, — they are only to hear evidence on behalf of the prosecution, and upon their oaths to inquire whether there be sufficient cause to call upon the party to answer it. It has been the practice, for ages, to examine the witnesses before the grand jury privately.^ "A grand jury, however, ought to be thoroughly per- suaded of the truth of an indictment, so far as the evidence goes, and not to rest satisfied with remote probability : a doctrine that might be applied to very oppressive purposes".* The grand inquest, returned the first day of the sessions and sworn, commonly serves the whole sessions of the peace, oyer and terminer, or gaol delivery; but circumstances may arise when the Court 1 2 Hale's P. C. 154; 4B1. » See i Bl. Comm. (Edit. Comm. 301. Christian), 303, n. ' 6 Geo. 4, 0. 60, s. 3. * 4 Bl. Comm. 303. Digitized by Microsoft® 76 MINISTEEIAi DTTTIES. not only may Ibut wiH order another inquest to be returned and sworn.' As regards the qualification of the special or common jurors the sheriff has little or nothing to do. He receives, once a year, from the clerk of the peace Jurors' a hook Called "The Jurors' Book." It is used for one year only, heg^inning on the 1st of January, after it comes into the hands of the sherifE or under-sheriff. The jurors are returned from this book : provided, ho-w- ever, that if there be no jurors' book in existence for the current year, they may be returned from the book of the year preceding. In every county in England (except the counties palatiae, and except in causes to be tried at bar or by a special jury) no less than forty-eight, nor more than seventy-two, must appear in the panel. By order of the judges, however, the number may be increased to 144. And, in places where the session is of long duration, the sheriff In sets. may apply to them for leave to summon two sets of seventy-two, or whatever number, below 144, he may think sufficient, and an order may be made. In his summons he should specify on which set the juior is (first or second), and at what time the attendance of such juror wiU be required. Jury in The judges' precept directs the sheriff to summon matters. common ]urors for the trial of aU issues, civil or criminal, that may be for trial; but (except on iudict- ments for treason or felony) the High Court of Justice has power, upon motion made on behalf of the Crown or of the prosecutor or defendant, to order a special jury to be struck before the proper officer of the Court for the trial of any crimiual case.- When a person is indicted for high treason or misprision of treason, in any Court other than the 1 2 Hale's P. 0. 156. 2 6 Geo. 4, c. 50, s. 30. Digitized by Microsoft® JITET. 77 Queen's Bench. Division, a list of the petit jury must be delivered to him, ten days hefore the arraignment, in the presence of two or more credible witnesses. If in the Queen's Bench Division, it maybe delivered to the party indicted at any time after the arraign- ment, so as the same be delivered ten days before the day of trial ; but he is not entitled to this panel if his crime relate to her Majesty's life or person, or to the counterfeiting her coin, the great or privy seal, her sign manual, or privy signet.'^ "Within ten days after the receipt of the Jurors' Special Book for the current year, the names of all men specified therein as qualified to serve as special jurors'* must be taken out by the sheriff or under- sheriff in alphabetical order, together with their respective places of abode and additions, in a separate Hst, to be subjoiaed to the Jurors' Book. And, for the purpose of balloting, these names must be num- bered 1, 2, 3, and so on; and the numbers written on separate cards or pieces of parchment, of equal size, and secured in a drawer for the purposes men- tioned. The superior Courts have the power of ordering special juries to be struck in any case what- soever, whether civil or criminal, or on any penal statute, excepting only indictments for treason or felony.' The precept issued by the judges of the High Number to Court* directs the sheriff to summon a sufficient monei." number of special jurymen, to be mentioned therein, not exceeding forty-eight in all, to try the special jury causes at the assizes. And the persons sum- ' JReg. T. Frost, 2 Mood. C. * The precept, as regards C. 140 ; 9 C. & P. 129. any session of the peace, is 2 33 & 34 Vict. c. 77, s. 15. issued by the sheriff in the ' 6 Greo. 4, c. 50, s. 30. name of two or more justices. 6 Geo. 4, i>. 50, B. 20. Digitized by Microsoft® 78 Panel. Juries Act, 1870. MINISTEEIAI, DUTIES. moned, in pureuance of such precept, shall Ibe the jury for trying the special jury causes at the assizes, subject to such right of challenge as the parties are now by law entitled to. A printed panel of the special jurors so summoned shall he made, kept, delivered, and annexed to the nisi prius record, in like time and manner and upon the same terms as thereinbefore provided with reference to the panel of common jurors. And upon the trial the special jury shall be balloted for and called in the order in which they shall be drawn from the box, in the same manner as common jurors : provided that the Court or a judge, in such case as they or he may think fit, may order that a special jury be struck, and such order shall be a sufficient warrant for striking such special jury, and making a panel thereof for the trial of the par- ticular cause.^ Sheriffs other than the sheriffs of London and Middlesex shall, seven days before the commission day, make and keep at their offices for inspection a printed copy of this panel of special jurymen, who need not be summoned uidess notice be given.'' By the Juries Act, 1870,^ it is enacted — "1. That no person shall be summoned to serve on any jury or inquest (except a grand jury) more than once in any one year, unless all the jurors upon the list shall have been already summoned to serve during such year: " Provided that nothing herein contained shall pre- judice the operation of any certificate granted under the County Juries Act, 1825, ss. 41 & 42. " 2. No person shall be exempt from serving as a 1 C. li.P.Aot, 1852,8.108. 2 E.Q-.,Hil.T. 1853,r.47, post, p. 79. 3 33 & 34 Vict. c. 77, s. 19. Digitized by Microsoft® JTIRT. 79 common JTiror by reason of Ms Tbeing on any special inrors list, or being qualified to serve as a grand juror. " 3. No person shall be summoned or be liable to serve as a juror in more tban one Court on the same day." The jurors are entitled to six days' notice; and the sheriff has power to make regulations as to their attendance. In any action in the High Court the plaintiff is entitled to have the cause tried by a special jury, upon giving notice in 'writing to the defendant, at such time as votdd be necessary for a notice of trial, of his intention that the cause shall be so tried. And the defendant is also entitled to have the cause so tried on giving the nke notice to the plaintiEE, «ither before notice of trial, or, if afterwards, then six days at least before the day for which notice of trial has been given: provided that the Court or a judge may, at any time, order that a cause shall be tried by a special jury upon such terms as they or he shall think fit. Where notice has been given to try by special Notice to jury, either party may, six days before the first day stunmon of the sittings in London or Middlesex, or adjourn- ^^"^ ''™'^' ment day in London, or conxmission day of the assizes, give notice to the sheriff that such cause is to be tried by a special jujy; and in case no such notice be given no special jury need be summoned or attend, and the cause may be tried by a common jury, unless other- wise ordered by the Court or a judge. Li all cases where notice is not given to the sheriff that the cause is to be tried by a special jury, and by reason thereof a special jury is not summoned or does not attend, the cause may be tried by a common jury, to be taken from the panel of common jurors, in like manner as Digitized by Microsoft® 80 MrNiSTERiAi, DtrrrES. if no proceedings had Ibeen had to try the cause by a special jury. View. It may be that for the better understanding of the matter ia dispute that some of the jurors should themselves see, in other words- should have a view of the place, the premises, or the process of manu- facture in question. Before the 4 & 5 Anne, c. 16, s. 7, a view could not be obtained until the full jury were sworn: after which a juror was withdrawn and the parties entered into a consent rule for a view. It is needless to dwell upon the delay and inconveni- ence of such a practice. Then followed the 3 Geo. 3, e. 25, s. 14, which was substantially embodied in the 6 Geo. 4, c. 50, the 23rd section of which enacts that "in any case, civil or crimiaal, or on any penal statute depending in any of the said Courts of Record in "Westminster, or in the counties palatine, or great sessions in. Wales, if it shall appear to any of the respective Courts, or to any judge thereof in vacation, that it will be proper and necessary that some of the jurors who are to try the issues in such case should have the view of the place in question, in order to their better understanding the evidence that may be given upon the trial of such issues ; in every such case such Court or any judge thereof in vacation may order a rule to be drawn up containing the usual terms; and also requiring, if such Court or judge shall so think fit, the party applying for the view to deposit ' in the hands of the under-sherifE a siun of money to be named in the rule for payment of the expenses of the view, and commanding special writs of venire facias, distringas or habeas corpora to issue,^ by which the sherifE, or other minister to whom the ^ See Stones v. Mcnhem, 2 " These -writs are no longer Exch. K. 386. necessary, C. L. P. Act, 1852, s. 104. Digitized by Microsoft® 81 said writs shall be directed, shall be commanded to have sis or more of the jurors named in such -writs, or in the panels thereto annexed (who shall be mutually consented to by the parties, or if they cannot agree, shall be nominated by the sheriff or such other minister as aforesaid), at the place in question some convenient time before the trial ; who then and there shaU. have the place in question shown to them by two persons in the said writs named, to be appointed by the Court or judge, and the said sheriff or other minister who is to execute any such writs, shall, by a special return upon the same, certify that the view hath been had according to the com- mand of the same, and shall specify the names of the viewers." And by the next section it is provided, that the viewers are to be first sworn on the jury at the trial, and then so many only shall be added to the viewers who shall appear as shall, after all defaulters and challenges allowed, make up a full jury of twelve. This is somewhat altered by the 15 & 16 Vict. c. 76, s. 114, which enacts that "a writ of view shall not be necessary or used. But, whether the view is to be had by a common or special jury, it shall be suffi- cient to obtain a rule of the Court or judge's order, directing a view to be had. And the proceedings upon the rule for a view shall be the same as the proceedings theretofore had under a writ of view ; and the sheriff, upon request, shall deliver to either party the names of the viewers, and shall also return their' names to the associate for the purpose of their being called as jurymen upon the trial." Either party may obtain a rule or order for inspection by the jury, or by himself, or by his witnesses, of any real or personal* property in dispute.^ 1 17 & 18 Vict, c. 125, s. 58. Digitized by Microsoft® 82 MINISTEEIAIi DUTIES. Conduct of showers. SherifE's duties on ■view. The duties and conduct of the showers are explained by the case of Symons v. Clark:^ — " After the merits of the cause had heen determined at the assizes by a special jury, defendant moyed to set aside the verdict, upon affidavit, that plaintiff's shower at a view, pur- suant to a rule of Court previous to the trial, had misbehaved himself by telling the viewers this place is called A. and this C. (which were not the places in question), and saying, these cottages pay Mr. S. fivepence or sixpence a year rent ; defendant in- sisting that nothing more than the place in question, which was one single cottage, should have been shown to the viewers. Upon hearing counsel on both sides the Court discharged the rule : being of opinion that on a view the showers may show marks, boundaries, &c. to enlighten the viewers, and may say to them, these are the places which on the trial we shall adapt our evidence to. The jury could have no light from looking at the cottage only. The ques- tion to be tried was, whether it stood within Mr. S.'s manor or not. Had an ancient man been produced to the viewers, and he had acquainted them that he had known the place many years, and given account of the boundary, &c., this would have been improper, because it is giving evidence before the trial." A view is usually granted in actions of a local nature, as injuries to land, or houses, in waste, nui- sances, and the like. The mode or process of a manufactory may be viewed. In an action for work and labour by a bricklayer the Court refused to allow one.^ The sheriff's duties, on a view, seem to be simply those of an ordinary officer of the Court in charge of a jury. He is to prevent any improper ' Barnes's Notes, 4.57. ^ Stones V. Mmh^m, 2 Exch. 382. Digitized by Microsoft® JURY. 83 interference of strangers ; and afterwards to certify, to the justices of assize, that the rule of Court or the judge's order, as the case may be, has been com- plied with. By the 6 Geo. 4, c. 50, s. 37, " where a full jury Tales jury. shall not appear before any Court of assize or nisi prius, or before any of the superior ci-vil Courts of the three counties palatine, or before any Court of great sessions, or where, after appearance of a full jury, by challenge of any of the parties, the jury is likely ' to remain untaten for default of jurors, every such Court, upon request made for the king by any one thereto authorized or assigned by the Court, or on request made by the parties, plaintiff or demandant, defendant or tenant, or their respective attorneys, in any action or suit, whether popular or private, shall command the sheriff or other minister, to whom the making of the return shall belong, to name and appoint, as often as need shall require, so many of such other able men of the county then present as shall make up a full jury. And the sheriff or other minister, as aforesaid, shall, at such command of the Court, return such men duly qualified as shall be present or can be found to serve on such jury, and shall add and annex their names to the former panel: provided that where a special jury shall have been struck for the trial of any issue, the talesmen shall be such as shall be impanelled upon the common jury panel to serve at the same Court, if a sufficient number of such men can be found; and the king, by any one so authorized or assigned as aforesaid, and all and every the parties aforesaid, shall and may, in each of the cases aforesaid, have their respec- tive challenges to the jurors so added si,nd annexed, and the Court shall proceed to the trial of every such issue with those jurors who were before impanelled, g2 Digitized by Microsoft® 84 MINISTEBIAI, DTJTIES. How sum- moned. Jury of malTOns. Lunacy. Coroners. Clerk of the market. together with the talesmen so newly added and annexed, as if aU the said jurors had heen returned upon the writ or precept awarded to try the issue." ■ It is not necessary that the tales be selected out of persons accidentally present. It may be out of those whose presence the sheriff has previously taken means to obtain. Any person who is on the Jurors' Boot may be served by showing the simimons to him, or, in case of his absence from his usual place of abode, by leaving with some one inhabiting there a note in writiag, under the hand of the sheriff or other proper officer, containing the substance of the summons;' or the service may be efEected by the post.^ The jury of matrons will be the subject of future remark. Suffice it to say, that as their duties con- sist in . ascertaining and deciding whether a woman is quick with child or not, they must be persons who have been mothers themselves. The sheriff may also be directed by a master in lunacy to summon a jury where an inquiry has been directed as to the soundness of a person's mind. The number to be summoned is regulated by general orders of the Lord Chancellor,' but the inquisition must be found by the oaths of twelve men at least. By the common law, coroners may make and direct their precepts and warrants to the sheriff for return- ing of juries before them, and may also assess and set a fine upon the sheriff for not returning of a panel or jury before them.* The clerk of the market also, who is an ancient officer to see that aU weights and measures be accord- ing to the king's standard in the Exchequer, may 1 6 Geo. 4, 0. 50. ■' 25 & 26 Vict. 0. 107. '•' 16 & 17 Vict. 0. 70, s. 46. ■• 12 Br. Fines pur Con- tempts. Digitized by Microsoft® JXJEY. 85 hold a Court, aad make his process or precepts to sheriffs and baUifEs of to-wns to return juries before him, at a certain day and place by him to be appointed, by which juries he may inquire of things incident to his office.^ Commissioners and other such ofScers are frequently Commis- authorized to direct their precept to the sheriff direct- sewers. ing him to summon a jury before them, for example, the Commissioners of Sewers have, by the 23 Hen. 8, • c. 5, " authority to make and direct writs, precepts, warrants, and other commandments, to all sheriffs, bailiffis, and all other -ministers and officers, as well within liberties as without, before the said commis- sioners or six of them, at certain days, times and places to be returned," ^ &c. " Sheriffs shall return and cause to come before the said commissioners, at such days and places as they shall appoint, such and so many jurors, &c., honest and lawful men of their baiHwiok or shire, as "well within liberties as without, as shall be expedient for inquiry.'" And by the statute 3 & 4 Will. 4, c. 22, s. 11, the said commissioners, or any six or more of them, are em- powered to issue a warrant or precept under their hands and seals to the sheriff or other returning officer of every county at large or place within the limits of their commission, commanding such sheriff or officer to impanel, summon and return a jury, and such officer is by the Act required to do so. The jury is to consist of not more than forty-eight nor less than eighteen substantial and indifferent persons qualified and usually simamoned to serve on grand juries in Courts of Sessions of the Peace. In some 1 Cromp. Author. desCourts, ' Dalton, Oh. 100 ; 23 Hen. fol. 22. 8, 0. 5, B. 3. ' lb., sect. i. Digitized by Microsoft® 86 MINISTERIAL DUTIES. cases where, on an inquiry concerning matters affect- ing tenements lying partly in the coimty at large and partly within some' liberty having jurisdiction exclusiye of the sheriff of the county, the respective juries come to different conclusions, the sheriff may be commanded by the precept to return a jury at a place not within his jurisdiction. General Warrant to Bailiffs} W. \ I Gr. A. BheriS of the county aforesaid to T. D. my to -wit. / bailiff \the bailiff of the liberty of P.] greeting: By virtue of the precept of justices assigned to take the assizes in and for the said county I command you that you be and appear before the said justices at * in the county aforesaid on the day of next coming "with all ■writs &c. And also that you cause to come before the said justices at the time and place aforesaid such and so many good and la-wf ul . men of the county aforesaid -whose names are hereunder written to do those things which on the part of our said lady the Queen shall be then and there enjoined him. And I command you also that you make public proclamation in and through the whole county aforesaid that all those who will prosecute any prisoner in any prison or gaol in the county aforesaid or at large on bail that they be then and there present to prosecuta them as shall be just. And also that you give notice to aU justices of the peace chief constables coroners stewards and bailiffs of liberties within the county aforesaid that they be then and there with their rolls records indictments and other memoranda to do those things which in this behalf shall belong unto them to be done. And further by virtue of the precept so to me directed I command you that you have before the said justices at the time and place aforesaid the bodies of the several jurors whose names are hereunder written and that you yourself be then there in your own person to attend do and perform all those things which belong to your office. Given &o. Gr. A. sheriff. To summon Jury? W. j I G. A. sheriff of the said county to T. D. my bailiff to wit. / greeting : These are to will and require you immedi- * These warrants, sum- stance of the precept, by the mouses, &c., are usually terms of which the sheriff printed. If anything is to must be guided in framing it. be done within a liberty, the '^ Proclamation is usually warrant should be directed to made by advertisement in the the bailiff of the liberty. The county newspapers, warrant must contain the sub- ' For all issues civil and Digitized by Microsoft® 87 ately upon sigM hereof to warn and summon the several per- sons hereunder named personally to be and appear at the Court house at on the day of next. Jury to View. "W. ) I G. A. sheriff of the said county to T. D. my to wit. ) bailiff greeting : Ton are hereby required to warn and summon the several persons hereunder named personally to be and appear at the next assizes to be held for this county on &c. at &c. to try certain issues joined in a cause now pending between A. B. plaintiff and C. D. defendant. And the said persons are desired and requested to be and appear at the house known by the sign of &o. at o'clock in the noon of the same day where they will be attended by and persons appointed by the Court to show them the premises in question. And hereof fail not at your peril. Given &c. high sheriff.^ Return of the Precept. The execution of this precept aippears more f uUy by divers panels to the same annexed. And further I have caused to be publicly proclaimed throughout my baOiwiok that all who shall prosecute against those prisoners be then and there to prosecute against them as shall be just. I have also given notice to all justices of the peace mayor^coroners escheators stewards and also to all chief constables and bailiffs of every hundred and Hberty within my county that they be then and there in their own person with their rolls records indictments and other remembrances to do those things which to their offices in this behalf appertain to be done as is within com- manded me. The answer of Gr. A. sheriff.^ criminal, 15 & 16 Vict. c. 76, ' To this annex a panel of s. 105. This form is also the names of the viewers, sufficient for the grand jury. ^ The panels are engrossed He must have notice six days on parchment and annexed to before the commission day, or the precept. On the back of six days before the first day the precept is indorsed the of the sittings in London or above return. They should Middlesex, or adjournment be delivered by the sheriff to day in London, that a special the judge or commissioner at jury is required. If there be • the time he opens the oom- no such notice, no special mission, together with a panel jury need be summoned. lb. of the crown calendar, s. 112. Digitized by Microsoft® 88 MINISTEEIAl, DUTIES. Certificate of View} I do hereby certify that I have caused the place in question to be shown to {j^M'ors that attend'] in the panel hereunto annexed as within oommanded and required by the said order. Q-. A. sherifi. Section II. Duties at Javelin men or police. ASSIZES. Besides the siumnoiiiiLg of juries, maMag procla- mation of the assizes, &c., holding a view, returning the precept, and the Kke, he should see that the Courts are fit to hold pleas m. He should meet the judges at the usual place and -with the usual retinue, and must attend the Court. The recent Parliamentary Election Act (31 & 32 Vict. c. 125), also enjoins the same thing. Any wilful disobedience, in this respect, would be punished, as of late has been done, by a hea-vy fine for non-attendance. The case of Evelyn, high sherifi of Surrey, is one of the last, and one of the most remarkable instances on record. The sheriff must also provide lodgings for the judges, if they are not already provided by some other person or in some other way, which is often the case.^ And if the justices of the peace have not directed a sufficient number of poHee constables to keep order in and about the Assize Courts,' he must provide a sufficient number of javelin men or men in livery. ^ The view must be had by six at least. 6 Geo. 4, c. 50, s. 23. And the names of the viewers must be certified in the return. See 15 & 16 Vict. c. 76, s. 114. 2 See also 31 & 32 Vict, c. 125, s. 28. ' 22 & 23 Vict. u. 32. Digitized by Microsoft® EXECUTIONS. 89 The 13 & 14 Car. 2, c. 21, s. 1, fixes the maxinmm of servants with liveries attending upon him in the time of the assizes at forty, and the minimum twenty, in any county in England. Twelve men servants is the minimum in any county in Wales, and for every default he shall forfeit the sum of 200^. The same statute, under a like penalty, forbids him to keep at any assize any table " other than those that shall be of his own family or retinue." Before the Prisons Act, 1865 (28 & 29 Vict. c. 126), Crown he was required by law to give to the judges of assize and to the justices in quarter sessions a calendar of the crown prisoners, but this is now to be done by the gaoler, and not by the sheriff. The abolition of forfeiture of lands and goods for treason and felony^ has also relieved the sheriff of much of his former duty at the assizes. caleudai*. Section m. EXECUTIONS. In a former page it has been shown that the Besponsi- custody of prisoners has been taken from the sheriff sheriff in and given to the gaoler. But by the Prison Act, prisoners 1877,^ it is expressly provided, that nothing therein tmcf^of™" contained "shall affect the jurisdiction or respon- ^^^' sibOity of the sheriff in respect of prisoners under sentence of death and confined in any prison within his jurisdiction, or his jurisdiction or control over the prisoners where such prisoners are confined, and the o;fficers thereof so far as may be necessary for 1 33 & 34 Vict. u. 23. ^ 40 & 41 Vict. c. 21, s. 32. Digitized by Microsoft® 90 MINISTERIAL DUTIES. the purpose of carrying into effect tlie sentence of deatli, or for any purpose relating thereto; and in any prison in vMoh sentence of death is required or authorized to he carried into effect on any prisoner, the sheriff shall, for the purposes of carryiag that sentence into execution, be deemed to have the same jurisdiction with respect to such prison as he would by law have had with respect to the common gaol of his county, if this Act had not passed, and such prison were the common gaol of his county."^ In ancient times there was a warrant under the hand and seal of the judge who delivered judgment of death. Upon the execution of a peer of parlia- ment, pursuant to judgment pronounced iu the Court of the Lord High Steward, such a warrant is stOl made out, but in ordinary cases the practice has quite fallen into disuse.'^ "What usually takes place is this : — The sheriff receives one copy of the calendar signed by the judge, and another from the clerk of assize signed by him. These calendars contaia the several judgments written in the margin. This calendar is, for all practical puirposes, the sheriff's guide ; but it is in law a mere minute or memorial, giving directions to no one. The judgment pro- nounced in open Court, or, rather, the award of the Court upon the judgment, is that which authorizes and justifies the sheriff in the execution of the sentence. Time of The day of execution used to be fixed by the judge,' execu on. ^^^ ^^^^ ^-^^ Private Execution Act (31 Vict. c. 24) came into operation, the Home Office issued some regulations to this effect: 1st. That all executions should take place at 8 o'clock on Monday morning 1 Ante, p. 37. ' K & 7 WiU. 4, o. 30, - 2 Hale, P. C. 409. Digitized by Microsoft® EXECUTIONS. 91 next following the third Sunday after sentence : thus giving the convict three Sundays between his sentence and death. 2ndly. That a black flag should be hoisted at the moment of execution, on a conspicuous part of the prison, and remain there one hour. 3rdly. That the prison, parish, or other bell shoidd toll a quarter of an hour before and a quarter of an hour after the execution. Execution ought not to be awarded into a different Place- county from that wherein the trial takes place. If, however, the record of attainder be removed into the Queen's Bench Division, the Court may order ' execution wherever it pleases.' Again, Palmer was tried in the Central Criminal Court and executed at Stafford, in the county where his crime was committed. But this was done under the 19 & 20 Vict. c. 16. Execution, when not otherwise provided for by Act By -wiiom. of Parliament, must be done by the person who has' the legal custody of the convict, or by one appointed by biTin to do it. Eor this purpose, as we have seen, the sheriff, and not the gaoler, is the proper officer.' The mode of execution must be warranted by the judgment. For instance, if the sentence be that the convict be hanged, he must not be beheaded. That would be felony, or, as some say, murder.^ The Queen, even by her prerogative, it seems, could not alter it, except in degree of pain and iafamy. Condemned persons, confined in the castle of Chester, for crimes committed in the county, may, by order of the judge, be executed by the city sheriff.* ■ S. V. Antroius, 2 A. & E. ^ I Hale, P. C, oh. 37. 865. ^ 5&6"WiIl. 4, c. 1; E.v. 2 Ante, p. 37. Antroius, 2 A. & E. 865. Digitized by Microsoft® 92 MINISTEEIAI DUTIES. Execution to be withia the walls of tlie prison. Sheriff, &o. to be pre- Certificate and declara- tion of death. The judgment is — suspendatur per collem quoiisque fuerit mortuus : that is, that he be hanged by the neck untU he be dead. This shows that, in the event of accident the attempt must be resumed. The execution must be carried into effect within the walls of the prison in which the offender is con- fined at the time of execution. The Capital Punishment Amendment Act, 1868 (31 Vict. c. 24), contains some important clauses thereon. Sects. 2 — 12 enact that — "2. Judgment of death to be executed on any prisoner sentenced after the passing of this Act on any indictment or inc[uisition for murder shall be carried iato effect within the walls of the prison in which the offender is confined at the time of execu- tion. "3. The sheriff charged with the execution, and the gaoler, chaplain, and surgeon of the prison, and such other officers of the prison as the sheriff requires, shall be present at the execution. " Any justice of the peace for the county, borough, or other jurisdiction to which the prison belongs, and such relatives of the prisoner or other persons as it seems to the sheriff or the visiting justices of the prison proper to admit within the prison for the purpose, may also be present at the execution. " 4. As soon as may be after judgment of death has been executed on the offender, the surgeon of the prison shall examine the body of the offender, and shall ascertain the fact of death, and shall sign a certificate thereof and deliver the same to the sheriff. "The sheriff, and the gaoler and chaplain of the prison and such justices and other persons present (if any) as the sheriff requires or allows, shall also sign a declaration to the effect that judgment of death has been executed on the offender. Digitized by Microsoft® EXECTTTIONS. 93 Declaration of Sheriff and others. We the imdersigned hereby declare that judgment of death ■was this day executed on 0. D. in the [describe prison] in our presence. Dated this — — day of . (Signed) E. F. sherifE of . Gr. H. justice of the peace for . J. K. gaoler of . L. M. chaplain of . &o. &o. "5. Tlie coroner of the jurisdiction to which, the coroner's prison belongs wherein judgment of death is executed "'i'^^ ■ on any offender shall within twenty-four hours after the execution hold an inquest on the body of the offender, and the jury at the inquest shall inquire into and ascertain the identity of the body, and whether judgment of death was duly executed on the offender; and the inquisition shall be La dupli- cate, and one of the originals shall be delivered to the sheriff. "No officer of the prison or prisoner confined therein shall in any case be a juror on the inquest. " 6. The body of every offender executed shall be Burial, buried within the walls of the prison within which judgment of death is executed on him; provided that if one of her Majesty's principal secretaries of state is satisfied on the representation of the visiting jus- tices of a prison that there is not convenient space within the walls thereof for the burial of offenders executed thereia, he may, by writing under his hand, appoint some other fit place for that purpose, and the same shall be used accordingly. "7. One of her Majesty's principal secretaries of Power to state shall from time to time make such rules and regu- state to lations to be observed on the execution of judgment ™* ® of death in every prison as he may from time to time deem expedient for the purpose, as well of guarding Digitized by Microsoft® 94 MINISTERIAL DUTIES. Such rules to be laid before pap- liament. Penalty for signing false certificate. Certificate to be sent to secretary of state, and copy ex- hibited at prison. Deputies. against any abuse in such execution as also of giving greater solemnity to the same, and of making known without the prison walls the fact that such execution is taking place. "8. All such rules and regulations shall be laid upon the tables of both Houses of Parliament within six week after the making thereof, or if Parliament be not then sitting within fourteen days after the next meeting thereof. "9. If any person knowingly and wilfully signs any false certificate or declaration required by this Act, he shall be guilty of a misdemeanour, and on conviction thereof shall be liable, at the discretion of the Court, to imprisonment for any term not ex- ceeding two years, with or without hard labour, and with or without solitary confinement. "10. Every certificate and declaration and the duplicate of the inquisition required by this Act shaJl in each case be sent with all convenient speed by the sheriff to one of her Majesty's principal secretaries of state, and printed copies of the same several in- struments shall as soon as possible be exhibited, and shall for twenty-four hours at least be kept exhibited on or near the principal entrance of the prison within which judgment of death is executed. "11. The duties and powers by this Act imposed on or vested in the sheriff may be performed by and shall be vested in his under-sheriff or other lawful deputy acting in his absence and with his authority, and any other officer charged in any case with the execution of judgment of death. " The duties and powers by this Act imposed on or vested in the gaoler of the prison may be performed by and shall be vested in the deputy gaoler (if any) acting in his absence and with his authority, and (if there is no officer of the prison called the gaoler) by Digitized by Microsoft® EXECUTIONS. 95 the governor, keeper or other chief officer of the prison and his deputy (if any) acting as aforesaid. " The duties and powers by this Act imposed on or vested in the surgeon may he performed by and shall he vested in the chief medical officer of the prison (if there is no officer of the prison called the surgeon). " The duties by this Act imposed on the chaplain may, in the event of the absence of the chaplain, be performed by the assistant chaplain or other person acting in place of the chaplain." HangmarH s Authority. I G-. H. of — — sheriff of tlie comity of W. do hereby authorize you to hang J. D. who now lies under sentence of death in the gaol at A. Dated &c. G-. H. But the execution may be, for a time, suspended Eeprieve. by a reprieve : as when a woman is capitally con- victed, and pleads her pregnancy. Though this is Pregnancy. no cause to stay the judgment, yet it is to respite the execution till she be delivered. This is done in favorem proHs. "In case," says Sir "W. Blackstone, " this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire the fact; and if they bring ia their verdict quick with child (for barely with child, unless it be alive in the womb, is not sufficient) execution shall be stayed generally tiU the next session; and so from session to session, till either she be delivered, or proves by the course of nature not to have been with child at all." As already stated, this jury should consist of " dis- creet women." Such as are or have been mothers should be put upon it. They ought to be summoned. They are to be protected and treated during their examination and deliberations in aU respects as other juries are. There Digitized by Microsoft® 96 MINISTBEIAL nrTIES. seems to be no instance of any evidence taken or received by tbem ; but there seems to be nothing in principle to prevent them. Indeed, in many cases, medical evidence would be absolutely required. Aiter delivery, the convict must be brought to the bar again, and be asked to say why executioja should not be made ; for it may be that she has good cause to allege, as a pardon, or the like.' iDBanity. Another cause of reprieve is — ^the convict becoming insane after judgment. This may -be ex arbitrio judicis, although the sessions be adjourned or finished; but the inquiry now emanates from and is conducted by the secretary of state for the home department. Men of science are sent to examine the convict, and report thereon. If the report shows that the convict is non compos, her Majesty is advised to reprieve him ; if not, the secretary of state for the home department informs the sheriff that he decHnes to recommend him to the mercy of the crown ; and, therefore, the law must take its course. Dutiea of sheriif. Section IV. PAELIAMENTAKT ELECTIONS. In the old County Court for the election of knights of the shire, the high-sheriff's duties were formerly of a mixed nature.* But since the statute of 6 & 7 Viet, c. 18, they seem to be chiefly ministerial.' Be it remembered, also, that since the 16 & 17 Vict, c. 68, the sheriff is to act as returning officer at 1 2 Hale, P. C. 414. 2 Ashiy V. White, 1 Smith's L. C. 251. ' See Pryce v. Belcher, 3 C. B. 58; 4 lb. 866, S. C. ; and 1 Sm. L. C.{7thed.), p. 307. Digitized by Microsoft® PABLIAMENTART ELECTIONS. 97 elections of members of parliament for the county- only, and not as theretofore for the boroughs within it. The exception introduced by a later Act, if it may be called one, mil be noticed hereafter. The first step iu a parliamentary election is the Writs, writ, which issues from the office of the clerk of the crown in chancery : in the case of a general election by warrant of the lord chancellor, and in other elec- tions under warrant of the speaker, or by order of the house if it is sittiag. . After the election, it is returned into the crown office. A separate writ is sent for each electoral division of a county. Form of Writ. * Victoria by tlie grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of tlie Faith to the sheriS of the county of greeting ; t Whereas by the advice of our council we have ordered a Parliament to be holden at Westminster on the day of next: We command you that notice of the time and place of election being first duly given you do cause election to be made according to law of members \or a member] to serve in Parliament for the said county \or the division of the said county] of % and that you do cause the names of such members \mr member] when so elected whether they \or he] be present or absent ,to be certified to us iu our Chancery without delay. Witness ourself at Westminster the day of in the year of our reign and in the year of our Lord 18 . Label or direction of Writ, To the sheriff of . A vmt of a new election of members [or member] for the said county [or division of a county]. * Th^ name of the sove- reign may be altered when necessary. + This pre- amble to M omitted ex- cept in case of a general t Except in a general elec- tion, iTisert here in the place of A. B., deceased, or otherwiaCf stating the cause of valiancy. Certificate indorsed on the Writ. I hereby cei;j}ify that the members \or member] elected for in pursuance of the within-written writ are [or is] A. B. of in the county of and C. D. of in the county of . (Signed) A. B. high sheriff. Mote. — A separate writ will be issued for each county as defined for the purposes of a parliamentary election. Digitized by Microsoft® 98 MmiSTBEIAli DUTIES. The writs, whetlier upon a general election or upon particular vacancies during parliament, are taken by the messenger of the great seal or his deputy' to the General Post Office in London; and are there delivered to the postmaster-general, or to such other person as he shall depute to receive the same. He on receipt of them is to give an acknowledgment in writing to the person from whom they were received, expressing therein the time of such delivery. He shall also keep a duplicate of such acknowledgment signed by both parties.^ The statute . also requires that the writs be dispatched by the first post or mail after the receipt thereof, directed to the proper oifieer, and accompanied with proper directions to the post- master or deputy postmaster of the town or place, or nearest to the town or place, where such officer has his office,' requiring him forthwith to carry such writs to such office, and deliver them to the officer to whom they are directed, or to his deputy. He is to give a memorandum, under his 'hand, to such post- master, acknowledging the receipt of such writ, and setting forth the day and hour when the same was delivered. This memorandum is to be signed by such postmaster, by whom it is to be transmitted, by the first or second post afterwards, to the postmaster- general at the General Post Office in London, who is to make an entry thereof in a book for that purpose; and to file such memorandum, along with the dupli- cate of the messenger's acknowledgment: that the same may be inspected or produced by any person interested in such election. MmaSoT.'^ ^^® ^"^^ ^° *^^ sheriffs of London and Middlesex, I f ^^^rJ^"^- °- ^^' "■ *• ' Tlie sherifi must for this bee 53 Greo. 3, c. 89, ». 1. purpose inform the Post OfBce of his office. lb. o. 2. Digitized by Microsoft® PARLIAMENTABY ELECTIONS. 99 and all other officers whose office is in London, Westminster, or Sontliwark, or witHn five miles thereof (which are to be delivered at their offices by the messenger of the great seal), are excepted. Every person concerned in the delivery of any writ who shall wilfully neglect or delay to deliver it, is to be deemed guilty of a misdemeanor.' The sheriff must indorse upon the back of the writ the date of the receipt of it, thus : — Eeceived tlie within ■writ on the day of . A. B. high sheriff. The duties of the sheriff at elections are now Nomination regulated by the provisions of the Ballot Act and Slte^^' Eules, 1872,^ by which it is enacted that a candidate for election to serve m parliament for a county shall be nominated in writing.' The writing shall be sub- scribed by two registered electors of such county* as proposer and seconder, and by eight other registered electors of the sam.e coujity as assenting to the nomination, and shall be delivered during the time appoiuted* for the election ^ to the returning officer by the candidate himself, or his proposer or seconder. If at the expiration of one hour after the time appointed for the election no more candidates stand nominated than there are vacancies to be filled up, - the returning officer shaU. forthwith declare the oan- ' 53 Geo. 3, c. 89, s. 6. masters instructs the sherifl 2 35 & 36 Viot. 0. 33. to that effect. The register ' See post, p. 115, rr. 5, 6 is conclusive of a person's and 7. right to vote. * A register of electors en- ^ See p. 114, rr. 1 — i and 8. titled to vote is forwarded to The term "election" applies the sheriff by the clerk of the to elections which, not being peace on or before the last contested, are completed at day of November in each year. the time of nominatioh, as If any alteration is to be made well as to elections which, in it pursuant to a judgment being contested, are decided' of the High Court, one of the by a poU. h2 Digitized by Microsoft® 100 MINISTEEIAL DTTTIES. didates who may stand nomiiiated to be elected, and return their names to the clerk of the crown in chancery;' hut if at the expiration of such hour more candidates stand nominated than there are vacancies to be filled up, the returning officer shaU adjourn the election, and shall take a poU in manner in that Act mentioned.^ A candidate may, during the time appointed for the election, but not afterwards, withdraw from his candidature by giving a notice to that effect, signed by him, to the returning officer : ' provided that the proposer of a candidate nominated in his absence out of the United Kingdom may withdraw such candi- date by a written notice signed by him and delivered to the returning officer, together with a written de- claration of such absence of the candidate. If after the adjournment of an election by the returning officer for the purpose of taking a poll one of the candidates nominated shaU die before the poll has commenced, the returning officer shall, upon being satisfied of the fact of such death, coHtntermand notice of the poll, and all the proceedings with refer- ence to the election shall be commenced afresh in aU respects as if the writ had been received by the returning officer on the day on which proof was given to him of such death : provided that no fresh nomination shall be necessary in the case of a candi- 1 See p. 130, rr. 42, 43. By turn of -writs issued on vaoan- 7 & SWiU. 3, 0. 25, s. 1, "upon cies, there is no precise in- every new parliament there terval fixed by law nor any shall be forty days between day mentioned in the writa the teste and return of the ■when the members returned ■writ of summons." In prao- are to attend in parliament, tioe fifty days intervene in - See p. 117, r. 9. consequence of the twenty- ^ gee p. 118, r. 10. Effect second article in the Treaty of not giving security for ex- of Union ■with Scotland. With penses, see post, p. 1 38. regard to the issuing and re- Digitized by Microsoft® PAELIAMENTAKT ELECTIONS. 101 date who stood nominated at' the time of the counter- mand of the poll. In the case of a poll at an election the votes shall PoU at ^ elections. be given by ballot.' The ballot of each voter shall consist of a paper (in. the Act called a ballot paper) showing the names and description of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting, the baUot paper shaJl be marked on both sides with an official mark,'* and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterf oU; and the voter, having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer presiding at the polling station (in the Act called "the presiding officer"^), after having shown to him the official mark at the back. Any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anjrthing, except the said number on the back, is written, or marked by which the voter can be identified, shall be void and not counted. After the close of the poll* the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer; and that officer shall, in the presence of such agents,^ if any, of the candidates as may be in attendance, open the ballot boxes, and ascertain the result of the poU by counting* the votes 1 See p. 119, rr. 14—28. » See p. 125, rr. 29, 30. ^ A perforating or emboss- * See p. 134, r. 57. ing stamp should be used. ^ See p. 125, rr. 31 — 37. 3 See p. 121, 1-. 21. Digitized by Microsoft® 102 MUnSTEEIAl DUTIES. Offences in respect of nomination papers, bal- lot papers, and ballot boxes. given to each candidate, and sliall fortliwitli declare to be elected the candidates or candidate to -whom the majority of votes have been given, and return their names to the clerk of the cro^ra in chancery.^ The decision of the returning officer as to any question arising in respect of any ballot paper shall be £nal, subject to reversal on petition questioning the election or return. Where an equality of votes is found to exist between any candidates at an election for a county, and the addition of a vote would entitle any of such candidates to be declared elected, the returning officer, if a registered elector^ of such county, may give such additional vote, but shall not in. any other case be entitled to vote at an election for which he is re- turning officer. Every person who — (1) Forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper, knowing the same to be forged ; or (2) Porges or counterfeits or fraudulently defaces or fraudulently destroys any ballot paper, or the official mark on any ballot paper ; or (3) Without due authority supplies any ballot paper to any person ; or (4) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorized by law to put in ; or (5) Praudulently takes out of the polling station any ballot paper ; or (6) Without due authority destroys, takes, opens, or otherwise interferes with any ballot box 1 p. 127, rr. 38-43. ' If not, he must make a double return. Digitized by Microsoft® PAEIilAMKNTABY BLE0TION8. 103 or packet of ballot papers then in use for the purposes of the election ; shall be guilty of a misdemeanor, and be liable, if he is a returning officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding two years, with or without hard labour, and if he is any other person, to im- prisonment for any term not exceeding six months, with or without hard labour. Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is ptmishable. In any indictment or other prosecution for an offence in relation to the nomiuation papers, ballot boxes, ballot papers and marking instruments at an election, the property in such papers, boxes and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils. Every officer, clerk and agent in attendance at a infring- polling station shall maintain and aid in maintaining secrecy, the secrecy of the voting in such station, and shall not communicate, except for some purpose authorized by law, before the poll is closed, to any person any information as to the name or number on the register of voters of any elector who has or has not applied for a ballot paper or voted at l^at station, or as to the official mark,^ and no such officer, clerk or agent, and no person whosoever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the poJling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any informa- tion obtained in a polling station as to the candidate I See p. 120, r. 20. Digitized by Microsoft® .04 MnnsTERiAi DtrrrES. for whoni any voter in suoli station is about to vote or has voted, or as to the number on the back ol the ballot paper given to any voter at such station. Every officer, clerk and agent la attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any par- ticular ballot paper. No person shall directly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote. Division of The justice^ at general or quarter sessions' divide LQto polling the county into polling districts, and assign a polling place to each district, in such manner that, so far as is reasonably practicable, every elector resident in the county shall have a polling place within a distance not exceeding four miles' from his residence, so, nevertheless, that a polling district need not in any case be constituted containing less than one hundred registered electors. No election shall be questioned by reason of any informality relative to polling districts or polling places, and any order made by the justices in rela- tion to polling districts or polling places, shall apply only to lists of voters made subsequently to its date, and to registers of voters formed out of such lists, and to elections held after the time at which a register of voters so formed has come into force : provided that where any such order is made between the 1st day of July and the 1st day of November in 1 30 & 31 Viot. 0. 102, s. 34. » 6 & 7 Viot. o. 18, s. 76. Digitized by Microsoft® PAELIAMENTAEY ELECTIONS. 105 any year, and does not create any new division between two or more polling districts of any parish for wMch. a separate poor rate is or can be made, sucli order shall apply to the register of voters which comes into force next after such order is made, and to elections held after that register so comes into force; and the clerk of the peace shall copy, print and arrange the lists of voters for the purpose of such register in accordance with such order. The returning officer may use, free of charge, for irse of the purpose of taking the poll, any room in a school pubUo room receiving a grant out of moneys provided by ParKa- ™ ^ ment, and any room the expense of maintaining which is payable out of any local rate, but he shaU. make good any damage done to such room, and defray any expense incurred by the person or body of persons, corporate or unincorporate, having control over the same on account of its being used for the purpose of taking the poll as aforesaid. The use of any room in an imoccupied house for the purpose of taking the poll shall not render any person liable to be rated or to pay any rate for such house. At any election for a county, a person shall not be Condusive- T16SS of entitled to vote unless his name is on the register of register of voters for the time being in force for such county, and every person whose name is on such register shall be entitled to demand and receive a ballot paper and to vote : provided that nothing in this section shall entitle any person to vote who is prohibited from voting by any statute, or by the common law of parliament, or relieve such person from any penalties to which he may be liable for voting. Subject to the provisions of the Ballot Act, every General returning officer shall provide such nomination papers, duties of polling stations, ballot boxes, ballot papers, stamping l^^^ instruments, copies of register of voters, and other Digitized by Microsoft® 106 MDJISTEEIAl DXTTIES.. things, appoint. and pay such officers, and do sucli other acts and things as may be necessary for effectu- ally conducting an election in manner provided by that Act. All expenses properly incurred by any returning officer in carrying into effect the provisions of the Act, in the ease of any parliamentary election, shaU be payable in the same manner as expenses incurred in the erection of poUlng booths at such election were by law payable.' Where the sheriff is returning officer for more than one county as defined for the purposes of par- liamentary elections, he may, without prejudice to any other power, by writing under his hand, appoint a fit person to be his deputy for all or any of the purposes relating to an election in any such county, and may, by himself or such deputy, exercise any powers and do any things which the returning officer is authorized or required to exercise or do in relation to such election. Every such deputy, and also any under sheriff, shall, in so far as he acts as returning officer, be deemed to be included in the term return- ing officer in the provisions of the Act relating to parliamentary elections, and the enactments with which those provisions are to be construed as one. Keeping of If any person misconducts himself in the polling station. station, or fails to obey the layrful orders of the presiding officer, he may immediately, by order of ' It is the duty of tlie licensed for the sale of teer, BherifE, so far as is practicable -wine or spirits, or any booth, and where a pubUo room can- haU, room or other place not be had free of charge directly commimicatingthere- (ante, p. 105), to hire a btuld- with, unless by consent of all iag or room for the poll in- the candidates expressed in stead of erecting a booth; but -writing. 16 & 17 Vict. o. 68, it must not be an inn, hotel, s. 6 ; 30 & 31 Vict. c. 102, tavern or other premises ». 37. Digitized by Microsoft® PAELIAMENTABY ELECTIONS. 107 the presiding officer, he removed from tlie poUing station by any constable in or near tliat station, or any other person anthorized in -writiag by the return- ing officer to remove him; and the person so removed shall not, imless with the permission of the presiding officer, again be allowed to enter the polling station during the day. Any person so removed as aforesaid, if charged with the commission in such station of any offence, may be kept in custody until he can be brought before a justice of the peace. Provided that the powers conferred by this section shall not be exercised so as to prevent any elector who is otherwise entitled to vote at any polling station from having an opportunity of voting at such station. For the purpose of the adjournment of the poll. Power of and of every other enactment relating to the poU, a officer and presiding officer shall have the power by law belong- aon of ^ ing to a deputy returning officer ;^ and any presiding ° ' officer and any clerk appoiuted by the returning officer to attend at a polling station shall have the power of asking the questions and administering the oath authorized^ by law to be asked of and adminisr • 2 & 3 'Will, i, 0. 45, 8. 70, A. B. on the register of voters ^ At the time of polling no now in force for the county of question can be put to any [or "for the riding, voter as to Ms right to vote parts or division of the county except the following, and this of "]? can be done by the presiding 2. Have you already voted officer or the clerk appointed either here or elsewhere at by the returning officer to this election for the county of attend >n"Tn only if required [or "for the ^ridmg, on behalf of any candidate parts or division of the county and at the time of his tender- of ," «s the ease mm/ ie] ? ing his vote, and not after- If any person shall wilfully wards: — make a false answer he may 1. Are you the same per- be indicted for a misdemeanor. son whose name appears as In addition to these twa Digitized by Microsoft® 108 MINISTBRIAL DUTIES. tered to voters, and any justice of the peace and any returning officer may take and receive any declara- tion authorized by the Act to be taken before him. Liabffity of Every returning officer, presiding officer, and clerk ^"(^dud;. who is guilty of any mlf ul misfeasance or any wilful act or omission in contravention of the Act shall, in addition to any other penalty or liability to which he may be subject, forfeit to any person aggrieved by such misfeasance, act, or omission a penal sum not exceeding 100^. 30 & 31 Vict. Sect. 50 of the Eepresentation of the People Act, 1867, (which relates to the acting of any returning officer, or his partner or clerk, as agent for a candi- date,) shall apply to any returning officer or officer appointed by hiTn in pursuance of the Ballot Act, and to his partner or clerk. ProhibiHon No person who has voted at an election shaU, ia ofTOte"^™^ any legal proceeding to question the election or return, be required to state for whom he has voted. Non-com- No election shall be declared invalid by reason of rules. a non-compliance with the rules contained in the first schedule, or any mistake in the use of the forms in the second schedule to the Ballot Act, if it appears to the tribunal having cognizance of the questions, or either of them, " division of the county the presiding officer or clerk of ," as the case may he\, must, if required on behalf of and that you have not before any candidate, at the time of voted either here or elsewhere tendering a vote, administer at the present election for the the following oath or affinna- county of \or " for the tion to the voter : — riding," &c.]. So help r, 1 J. , ■ yo'i God. Oath of Identity. ^q ^oter at any election is You do swear [oc "affirm," to be required to take any as the case may be\ that you other oath or affirmation, are the same person whose either in proof of his freehold, name appears as A. B. on the residence, age or other quali- register of voters now in force fioatiou or right to vote. 6 & for the county of \or 7 Vict. c. 18, ss. 81, 82. " for the riding " or Digitized by Microsoft® PABLIAMKNTAEY ELECTIONS. 109 question that the election -was conducted in accord- ance with the principles laid down in the body of that Act, and that such non-compliance or mistake did not affect the result of the election. "Where a parliamentary borough and municipal Use of borough occupy the whole or any part of the same baUotboxes, area, any ballot boxes or 'fittings for polling stations Uamentary ■and compartments proTided for such parliamentary Ticeversl" borough, or such municipal borough, may be used in any municipal or parliamentary election in such borough free of charge, and any damage other than ■ reasonable wear and tear caused to the same shall be paid as part of the expenses of the election at which they are so used.^ These provisions shall, so far as is consistent with Construc- 1 1.1 1 -11 bonof Act. the tenor thereof, be construed as one with the en- actments for the time being in force relating to the representation of the people, and to the registration of persons entitled to vote at the election of members to serve in parliament, and with any enactments otherwise relating to the subject matter of these provisions, and terms used in the said provisions shall have the same meaning as in the said enact- ments ; and in constrmng the said enactments relat- ing to an election or to the poll or taking the votes by poU, the mode of election and of taking the poll under the Ballot Act shall for the purposes of the said enactments be deemed to be substituted for the mode of election or poU, or taking the votes by poll, referred to in the said enactments ; and any person applying for a baUot paper as above shall be deemed "to tender his vote," or "to assume to vote," within the meaning of the said enactments ; and any application for a ballot paper as above, or any ' See 38 & 39 Vict. c. 84, s. 6. Digitized by Microsoft® 110 MINISTEEIAl DUTIES. expressions relative thereto shall be equivalent to " voting " in the said enactments and any expres- sions relative thereto; and the term "polling booth" as used in the said enactments shall be deemed to include a polling station; and the term "proclama- tion" as used in the said enactments shall be deemed to include a public notice given in pursuance of the BaUot Act. Definition A person shaU for all purposes of the laws relating men? of ' to parliamentary elections be deemed to be guilty of peraona on. ^-^^ ofEence of personation who at an election applies for a ballot paper in the name of some other person, whether that name be that of a person living or dead or of a fictitious person, or who having voted once at any such election applies at the same election for a ballot paper in his own name. The ofEence of personation, or of aiding, abetting, counseUing, or procuriag the commission of the offence of personation by any person, shall be a felony,' and any person convicted thereof shaU. be punished by imprisonment for a term not exceeding two years together with hard labour. It shaU be the duty of the returning officer to iastitute a prose- cution agaiast any person whom he may beUeve to have been guilty of personation, or of aiding, abet- ting, counselling, or procuriag the commission of the offence of personation by any person, at the election for which he is returning officer; and the costs and expenses of the prosecutor and the witnesses in such case, together with compensation for their trouble and loss of time, shall be allowed by the Court in the same manner in which Courts are empowered to allow the same in cases of felony. Se may, therefore, on the mdiotment for the offence, be found guilty of an attempt. Digitized by Microsoft® PAKLIAMENTAET ELECTIONS. Ill The provisions of the Eegistration Act, 6 & 7 Vict, c. 18, shall apply to personation under the Ballot Act in the same manner as they apply to a person who knomngly personates and falsely assumes to vote in the name of another person as mentioned in the former Act. These provisions are contained in sections 86 to 89, of which the first two are as follows: — "86. And be it enacted, that if at the time any person tenders his vote at such election, or after he has voted, and before he leaves the polling booth, any such agent so appointed as aforesaid shall declare to the returning officer or his re- spective deputy presiding therein that he verily believes and undertakes to prove that the said person so voting is not in fact the person in whose name he assumes to vote, or to the like effect, then, and in every such case, it shall be lawful for the said returning officer or his said deputy, and he is hereby required, immediately after such person shall have voted, by word of mouth, to order any constable or other peace officer to take the said person so voting into his custody, which said order shall be a sufficient warrant and authority to the said constable or peace officer for so doing: provided always that nothing herein contained shall be construed or taken to au- thorize any returning officer or his deputy to reject the vote of any person who shall answer in the affirmative the questions authorized by this Act to be put to him at the time of polling, and shall take the oaths or make the affirmations authorized and required of him. " 87. And be it enacted, that every such constable or peace officer shall take the person so in has custody, at the earliest convenient time, before some two justices of the peace acting in and for the county, city, or borough within which the said person shall have so yoted as aforesaid : provided always, that in case the attendance of two such justices as aforesaid cannot be procured within the space of three hours after the close of the poU on the day on which such person shall have been so taken into custody, it shall be lawful for the said constable or peace officer, and he is hereby required, at the request of such person so in his custody, to take him before any one justice of the peace acting as aforesaid, and such justice is hereby au- thorized and required to liberate such person on his entering into a reeognizance with one sufficient surety, conditioned to appear before any two such justices as aforesaid, at a time and place to be specified in such recognizance, to answer the said charge ; and if no such justice shall be found within four hours after the closing of the said poll, then such person shall forth- with be discharged from custody: provided also that if, in consequence of the absence of such justices as aforesaid, or from Digitized by Microsoft® 112 Vote to be struck off for bribery, treating, or undue influence. Construc- tion, MINISTEELAi DUTIES. any other oaiise, the said charge cannot be inquired into -within the time aforesaid, it shall be lawful, ncTertheless, for any two such justices as aforesaid, to inquire into the same on the next or some other subsequent day, and, if necessary, to issue their warrant for the apprehension of the person so charged." The offence of personation shall be deemed to be a corrupt practice -within the meaning of the Parlia- mentary Elections Act, 1868.^ If, on the trial of any election petition questioning the election or return for any county or borough, any candidate is found, by the report of the judge, by himself or his agents to have been guilty of persona- tion, or by himseK or his agents to have aided, abetted, counselled, or procured the commission at such election of the offence of personation by any person, such candidate shall be incapable of being elected or sitting in parKament for such county or borough during the parliament then in existence. Where a candidate, on the trial of an election petition claiming the seat for any person, is proved to have been guilty, by himself or by any person on his behalf, of bribery, treating, or undue influence in respect of any person -who voted at such election, or -where any person retained or employed for re-ward by or on behalf of such candidate for all or any of the pTirposes of such election, as agent, clerk, mes- senger, or in any other employment, is proved on such trial to have voted at such election, there shall, on a scrutiny, be struck off from the number of votes appearing to have been given to such candidate one vote for every person -who voted at such election and is proved to have been so bribed, treated, or unduly influenced, or so retained or employed for re-waxd as aforesaid. These pro-visions concerning the offence of per- 1 31 & 32 Vict. c. 125. Digitized by Microsoft® PAELIAitENTAKT ELECTIONS. 113 sonation. shall be construed as one with " The Par- liamentary Elections Act, 1868.'" Rules for Parliamentary Elections in Counties, under the Ballot Act, 1872. 1. The returning officer shall, in the case of a Election, county election, -within two days after, the day on which he receives the writ, give puhlic notice, between the hours of nine in the morning and four in the afternoon, of the day on which and the place at which he will proceed to an election, and of the time appointed for the election, and of the day on which the poll will be taken in case the election is contested, and of the time and place at which forms of nomina- tion papers may be obtained, and shall send one of such notices by post, under cover, to the postmaster of the principal post office of each polling place in the county, endorsed with the words "Notice of election," and the same shaU. be forwarded free of charge; and the postmaster receiving the same shall forthwith publish the same in the manner in which post office notices are usually published.^ Form of Notice of Parliamentary Election. The returning officer of the of will on the day of now next ensuing het-nreen the hours of and proceed to the nomiQation and if there is no opposition to the plection of a member \or members] for the said county [or division of a county] at the .* * Note. In- forms of nomination paper may be obtained at * between ?f* desmp- the hours of a^d on . ^l°l^^ Every nomination paper must be signed by two registered electors as proposer and seconder and by eight other registered electors as assenting to the nomination. Every nomination paper must be delivered to the returning ' 31 & 32 Vict. c. 125. unless it appears that people ^ A defect in any of these have been misled by it. notices would not cause the Sowes v. Tw-ner, 1 C. P. D. election to be declared void, 670. Digitized by Microsoft® 114 MINISTEEIAl DUTIES. ofEcer by the candidate proposed or by Ms proposer and seconder between the said hours of and on the said * Note. In- day of at the said .* sert descrip- Each candidate nominated and his proposer and seconder Kon of place and one other person selected by the candidate and no other and room. persons are entitled to be admitted to tlje room. In the event of the election being contested the poll will take place on the day of . (Signed) A. B. sheriff. , day of 18 . Take notice that all persons who are guilty of bribery treating undue influence personation or other corrupt practices at the said election will on conviction of such offence be liable to the penalties mentioned in that behalf in "The Corrupt Practices Prevention Act 1854" and the Ballot Act 1872 and the Acts amending the said Acts. Take notice that by the ParHamentaiy Elections (Returning OfB.cers) Act 1875 it is provided that every person having any claim against a returning officer for work labour materiafi ser- vices or expenses in respect of any contract made with him by or on behalf s>i the returning officer for the purposes of an election (except for publications of account of election expenses) shall within fourteen, days after the day on which the return is made of the person or persons elected at the election transmit to the returning officer the detailed particulars of such claim in writing and the returning officer shall not be liable in respect of anything which is iiot duly stated in such particulars. Time- 2. The day of election shall he fixed hy the return- ing officer not later than the ninth day after the day on which he receives the writ, with an interval of not less than three clear days between the day on which he gives the notice and the day of election.' 1 The times for nomination July 8. First possible day and poll would be, therefore, for poll, supposing the writ received, say on the 1st July (see r. 56):— July 1. Eecept of writ. „ 2. ,, 3. Last possible day , for notice. „ 4. ,, 5. First possible day for nomination. ,, V. „ 10. Last possible day for nomination. „ 11. „ 12. „ 13. „ 14. „ 15. ,, 16. „ 17. Last possible day for poU. Digitized by Microsoft® papers. PABMAMENTAIIY ELECTIONS. 115 3. The place of election shall be a convenient room piaoe, situate in the town in ■\srhich such election would have been held if this Act had not passed,' or where the election would not have been held in a town, then situate in such town in the county as the returning officer may from time to time determine as being in his opinion most convenient for the electors. 4. The time appointed for the election shall be Hom-s. such two hours between the hours of ten in the fore- noon and three in the afternoon as may be appointed by the returning officer, and the returning officer shall attend during those two hours and for one hour after. 5. Each candidate shaU. be Tin TniTi a.tp.fl by a separate Nomination nomination paper, but the same electors or any of them may subscribe as many nomination papers as there are vacancies to be filled, but no more. 6. Each candidate shall be described in the nomi- Description nation paper in such manner as in the opittion of the dates, returning officer is calculated to sufficiently identify such candidate; the description shall include his names, ^ his abode, and his rank, profession or calling, and his surname shall come first in the list of his names. No objection to a nomination paper on the ground of the description of the candidate therein being insufficient, or not being in compliance with this rule,' shall be allowed or deemed valid, unless such objection is made by the returning officer, or ^ The sheriff may appoint * See Mather v. Broim, 1 C. any convenient place in the P. D. 596. This decision neighbourhood of the place Tvould probably not apply to where previous to 1832 elec- the present Act in whidi more tions were usually held ; 2 & discretion is given to the re- 3 Win. i, c. 64, s. 34. See returning officer, also 30 & 31 Vict. o. 102, 3 See r. 13. B. 23. I2 Digitized by Microsoft® 116 Sheriff to supply nomination papers. MIliriSTEEIAL DUTIES. by some other person, at or immediately after the time of the delivery of the nomination paper. 7. The returning officer shall supply a form of nomination paper to any registered elector requiring the same during such two hours as the returning officer may fix, between the hours of ten in the morning and two in the afternoon on each day inter- vening between the day on which notice of the election was given and the day of election, and during the time appointed for the election ; but nothing in this Act shall render obligatory the use of a nomi- nation paper supplied by the returning officer, so, however, that the paper be in the form following : — Form of Nomination Paper. We the undersigned A. B. of in the of and C. D. of in the of being electors for the county of do hereby nominate the following person as a proper person to serve as member for the said county in parliament : Surname. Other Names. Abode. Profession or Occupation. BROWK John 52, George Street, Bristol. Merchant. JONES or "William Datid ... High Elms, Wilts Esquire. MF-KTON or Hon. George Travis commoiily called Viscount. Swauworth, Berks Viscoimt. SMITH or Henry Sydney 72, High St., Bath Attorney. (Signed) A. B. CD. We the undersigned being registered electors of the said county do hereby assent to the nomination of the above- Digitized by Microsoft® PAKLIAMENTARY ELECTIONS. 117 mentioned JoJm Brown as a proper person to serve as member for the said county in parliament. (Signed) E. F. of G. H. of I. J. of E. L. of M. N. of 0. P. of Q. R. of S. T. of Note. — ^Where a candidate is an Irish peer or is commonly known by some title he may be described by his title as if it were his surname. 8. The nomination papers shall he delivered to the who may returning officer at the .place of election during the prSd^gs. time appointed for the election; and the candidate nominated by each nomination paper, and his pro- poser and seconder, and one other person selected hy the candidate, and no person other than aforesaid, shall, except for the purpose of assisting the returning officer, he entitled to attend the proceedings during the time appointed for the election. 9. If the election is contested the returning officer Notice of shall, as soon as practicable after adjourning the ^^ election, give public notice of the day on -which the poll will be taken,' and of the candidates described as in their respective nomination papers, and of the names of the persons who subscribed the nomination paper of each candidate, and of the order ia which the names of the candidates will be printed in -the ballot paper, and shall deliver to the postmaster of the principal post office of the town in which is situate the place of election a paper, signed by himself, containing the names of the candidates nominated, and stating the day on which the poR is to be taken, and the postmaster shall forward the information ' This is in addition to the notice required by r. 1. He should first take security for his costs. Digitized by Microsoft® 118 MINTSTEEIAL DtrriB8. Notice of ■withdrawal of candidate. Notice of nomination. Effect of nomination. Objections to nomina- tion. contained in eucli paper by telegraph, free of charge, to the several postal telegraph offices situate in the county for which the election is to he held, and such information shall be published forthwith at each such office in the manner in which post office notices are usually published. 10. If any candidate nominated dujring the time appointed for the election is withdrawn in pursuance of this Act, the returning officer shall give public notice of the name of such candidate, and the names of the persons who subscribed the nomination paper of such candidate, as weU as of the candidates who stood nominated or were elected. 11. The returning officer shall, on the nomination paper being delivered to him, forthwith publish notice of the name of the person nominated as a candidate, and of the names of his proposer and seconder, by placarding or causing to be placarded the names of the candidate and his proposer and seconder in a conspicuous position outside the building in which the room is situate appointed for the election. 12. A person shall not be entitled to have his name inserted in any ballot paper as a candidate unless he has been nominated in manner provided by this Act, and every person whose nomination paper has been delivered to the returning officer during the time appointed for the election shall be deemed to have been nominated in manner provided by this Act, unless objection be made to his nomination paper by the returning officer or some other person before the expiration of the time appointed for the election or within one hour afterwards.' 13. The returning officer shall decide on the validity of every objection made to a nomination paper, and ' As to objections on ground of misdesoription, see r. 6. Digitized by Microsoft® PAELIAMENTAEY ELEOTIONS., 119 his decision, if disallowing the objection, shall be final; but if allowing the same, shall be subject to reversal on petition questiomng the election or return. 14. The poll shall take place on such day^ as the The poll. retiirning ofB.cer may appoint, not beiag" less than two nor more than six clear days after the day fixed for the election. 15. At every polling place' the returning officer PoUing shall provide a sufficient number of polling stations for the accommodation of the electors entitled to vote at such polling place, and shall distribute the polling stations amongst those electors in such manner as he thinks most convenient, provided that in a district borough there shall be at least one poUing station at each contributory place of such borough. 16. Each polling station shall be furnished with such number of compartments, in which the voters can mark their votes screened from observation, as the returning officer thinks necessary, so that at least one compartment be provided for every one hundred and fifty electors entitled to vote at such polling station.' 17. A separate room or separate booth may con- tain a separate polling station, or several polling stations may be 'constructed in the same room or booth. 18. No person shall be admitted to vote at any polling station except the one allotted to him. 19. The returning officer shall give public notice ' I^om 8 a.m. tiU 5 p.m. and his clerk and of the per- 16 & 17 Viot. 0. 15, B. 2. sonation agents entitled to 2 /. e. the town or village attend, and on the other side at which the electors are to the compartments iato which poU. the voters are to retire in 3 The polling station usu- order to mark their votes, and ally contains on one side the two doors for ingress and seats of the presiding officer egress. Digitized by Microsoft® 120 MINISTEEIAl DUTIES. of the situation of polling stations and tlie descrip- tion of voters entitled to vote at eacli station, and of the mode in which electors are to vote. Form of directions for the guidance of the voter in voting, which shall he printed in conspicuous characters, and placarded outside every Polling Station and in every compartment of every Polling Station. Tte voter may vote for candidate — . The voter "wxll go into one of the compartments and "with the pencil provided in the compartment place a cross on the right hand side opposite the name of each candidate for vrhom he votes thus X The voter mU then fold up the ballot paper so as to show the official mark on the back and leaving the compart- ment ■will without showing the front of the paper to any person show the official mark on the back to the presiding officer and then in the presence of the presiding officer put the paper into the baUot box, and forthwith quit the polling station. If the voter inadvertently spoils a ballot paper, he can retvim it to the officer, who will, if satisfied of such inadvertence, give binn another paper. If the voter votes for more than candidate , or places any mark on the paper by which he maybe afterwards identified, his ballot paper will be void, and vrill not be counted. If the voter takes a ballot paper out of the polling station, or deposits in the ballot box any other paper than the one given him by the officer, he will be guilty of a misdemeanour, and be subject to imprisonment for any term not exceeding six months, with or without hard labour. Note. — These directions shall be Ulustrated by examples of the ballot paper. 20. The returning officer shall provide each poll- ing station with materials for voters to mark the ballot papers, with instruments for stamping thereon the official mark, and with copies of the register of voters, or such part thereof as contains the names of the voters allotted to vote at such station. He shall keep the official mark secret, and an interval of not less than seven years shall intervene between the use of the same official mark at elections for the same county or borough. Digitized by Microsoft® ELECTIONS. 121 21. The returniag officer shall appoint a presiding presiding officer' to preside at each station, and the officer so °^'^^- appointed shall keep order' at his station, shall regulate the number of electors to be admitted at a time, and shall exclude all other persons except the clerks, the agents of the candidates, and the con- stables on. duty.^ 22. Every ballot paper shall contain a list of the Ballot candidates described as in their respective nomination p^i'^'^^- papers, and arranged alphabetically in the order of their surnames, and (if there are two or more can- didates with the same surname) of their other names : it shall be in the form following or as near thereto as circumstances admit, and shall be capable of being folded up : — Form of Ballot Paper. Porm of Front of Ballot Paper. 1 BBOWN (John Bro-wn, of 52, George St., Bristol, merchaiit.) 2 JONES (Wflliam David Jones, of High Elms, Wilts, Esq.) 3 MEETON (Hon. George Travis, commonly called Viscount Merton of Swanv7orfch, Berks.) 4 SMITH (Henry Sydney Smith, of 72, High Street, Bath, attorney.) ^ As to liability of presiding officer and clerk for negli- gence, see FieTcermg v. James, L. E,., 8 C. P. 489. * He has in respect of the poll the same power as a de- puty returning officer ; he may, for instance, adjourn the poll to the following day in case of riot or interruption. 2 Wm. 4, c. 45, s. 70, and 5 & 6 Will. 4, 0. 36, s. 8. ^ A sufficient attendance of constables or peace officers must be provided under 6 & 7 Vict. 0. 18, s. 90. Digitized by Microsoft® 122 MINISTEEIAIi DTTTrES. Form of Back of Ballot Paper. No. Election for comity. 18 . Note. — ^The number on the balldt paper is to correspond with that in the counterfoil. Directions as toprintimg Ballot Papers. Nothing is to be printed on the ballot paper except in accord- ance ■with this form. , The surname of each candidate and if there are two or more candidates of the same surname also the other names of such candidates shall be printed in large ohara<;ters as shown in the form and the names addresses and descriptions and the number on the back of the paper shall be printed in small characters. BaUot 23. Every ballot box shall be so constmeted that boxes. tbe ballot papers can be introduced therein, but can- not be withdrawn therefrom, without the box being unlocked. The presiding officer at any polling station, just before the commencement of the poU, shall show the ballot box empty to such persons, if any, as may be present in such station, so that they may see that it is empty, and shall then lock it up, and place his seal upon it in such manner as to prevent its being opened without breaking such seal, and shall place it in his view for the receipt of baUot papers, and keep it so locked and sealed. 24. Immediately before a ballot paper is delivered to an elector it shall be marked on both sides with the official mark,^ either stamped or perforated, and the number, name and description of the elector as stated in the copy of the register shall be called out, and the nimiber of such elector shall be marked on the counterfoil, and a mark shall be placed in the register agaiast the number of the elector, to denote that he has received a ballot paper, but without ^ Piclcering v. James, L. E., 8 C. P. 489. Digitized by Microsoft® PAELIAMENTAEY ELECTIONS. 123 showing the partioular ballot paper which he has received. 25. The elector, on reeeiTiag the ballot paper, shall forthwith proceed into one of the compartments in the polling station, and there mark his paper, and fold it up so as to conceal his vote, and shall then put his ballot paper, so folded lip, into the ballot box ; he shall vote without undue delay, and shall quit the polling station as soon as he has put his ballot paper into the ballot box. 26. The presiding officer, on the application of Duties of any voter who is incapacitated by blindness or other officer, physical cause from voting in manner prescribed in this Act, or (if the poll be taken on Saturday) of any voter who declares that he is of the Jewish per- suasion, and objects on reKgious grounds to vote in manner prescribed by this Act, or of any voter who makes such a declaration as hereiaafter mentioned that he is unable to read, shall, in the presence of the agents of the candidates, cause the vote of such voter to be marked on a ballot paper in manner directed by such voter, and the ballot paper to be placed in the ballot box, and the name and number on the register of voters of every voter whose vote is marked in pursuance of this rule, and the reason why it is so marked, shall be entered on a list in this Act called "the list of votes marked by the presiding officer." ' . ', The said declaration, in this Act referred to as "the declaration of inability to read," shall be made by the voter at the time of polling, before the pre- siding officer, who shall attest it in the form herein- after mentioned, and no fee, stamp, or other payment shall be charged ia respect of such declaration, and the said declaration shall be given to the presiding officer at the time of voting. Digitized by Microsoft® 124 MINISTEEIAL DUTIES. Form of Declaration of inahility to read. I, A. B., of , being numbered on the register of voters for tbe county of , do hereby declare that I am unable to read. A. B., his mark. day of . r, the undersigned, being the presiding of&cer for the poUing station for the county of , do hereby certify, that the above declaration, having been first read to the above- named A. B., was signed by bim in my presence with his mark. (Signed) C. D., Presiding officer for poUing station for the county of . day of . " 27. If a person, representing himseK to be a par- ticular elector named on the register, applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions and taking the oath permitted by law to * be asked of and to be administered to voters at the time of polling, be entitled to mark a baUot paper in the same manner as any other voter, but the ballot paper (in this Act called a tendered ballot paper) shall be of a colour differing from the other ballot papers, and instead of beiag put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer. And the name of the voter and his number on the register shall be entered on a Ust, in this Act called the tendered votes list. 28. A voter who has inadvertently dealt with this ballot paper ia such manner that it cannot be con- veniently used as a ballot paper, may, on delivering to the presiding officer the baUot paper so inad- vertently dealt with, and proving the fact of the in- advertence to the satisfaction of the presiding officer. Digitized by Microsoft® PARLIAMENTARY ELECTIONS. 125 obtain another ballot paper in the place of the baUot paper so deliyered up (in this Act called a spoilt ballot paper), and the spoilt ballot paper shaU be immediately cancelled. 29. The presiding officer of each station, as soon as practicable after the close of the poll, shall, in the presence of the agents of the candidates, make up into separate packets sealed with his own seal and the seals of such agents of the candidates as desire to affix their seals, — ( 1 . ) Each ballot box in use at the station, unopened ' but with the key attached ; and (2.) The unused and spoilt ballot papers, placed together; and (3.) The tendered ballot papers ; and (4.) The marked copies of the register of voters, and the counterfoils of the ballot papers ; ■ and (5.) The tendered votes Ust, and the Kst of votes marked by the presiding officer, and a statement of the number of the voters whose votes are so marked by the presiding officer under the heads "physical incapacity," "Jews," and "unable to read," and the declarations of inability to read ; and shall deliver such packets to the returning officer.. 30. The packets shall be accompanied by a state- ment made by such presiding officer, showing the number of ballot papers entrusted to him, and ac- counting for them under the heads of baUot papers in the ballot box, unused, spoilt and tendered ballot papers, which statement is in this Act referred to as the ballot paper account. 3 1 . The candidates may respectively appoint agents Counting to attend the counting of the votes. Digitized by Microsoft® 126 MnaSTEEIAl DUTIES. 32. The returning officer shall make arrangements for counting the votes in the presence of the agents of the candidates as soon as practicable after the close of the poU, and shaU give to the agents of the candidates appointed to attend at the counting of the votes notice in writing of the time and place at which he will begin to count the same. 33. The returning officer, his assistants and clerks, and the agents of the candidates, and no other person, except with the sanction' of the returning officer, may be present at the counting of the votes. 34. Before the returning officer proceeds to count the votes, he shaU, in the presence ^ of the agents of the candidates, open each ballot box, and, taking out the papers therein, shaU count and record the number thereof, and then mix together the whole of the ballot papers contained in the ballot boxes. The returning officer, while counting and recording the number of ballot papers and counting the votes, shall keep the ballot papers with their faces upwards, and take aU proper precautions for preventing any person from seeing the munbers printed on the backs of such papers. 36. The returning officer shall, so far as practicable, proceed continuously with counting the votes, allowing only time for refreshment, and excluding (except so far as he and the agents otherwise agree) the hours between seven o'clock at night and nine o'clock on the succeeding morning. During the excluded time the returning officer shall place the ballot papers and other documents relating to the election under his own seal and the seals of such of the agents of ' This sanction ought not turning officer in the count- to be given except for the ing. purpose of assisting the re- * See r. 55. Digitized by Microsoft® PAELIAMENTABY ELECTIONS. 127 the candidates as desire to afiix their seals, and shall otherwise take proper precautions for the security of such papers and documents. 36. The returning officer shall endorse "rejected" on any ballot paper which he may reject as invalid, and shall add to the endorsement "rejection objected to," if an objection be in fact made by any agent to his decision. The , returning officer shall report to the clerk of the crown in chancery the numbers of ballot paper rejected and not counted by bi-m under the several heads of — 1. Want of official mark ; 2. Votiag for more candidates than entitled to ; 3. Writing or mark by which voter could be identified ; 4. Unmarked or void for uncertainty ; and shall on request allow any agents of the can- didates, before such report is sent, to copy it. 37. Upon the completion of the counting, the re- Report o( turning officer shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or marked copy of the register of voters and counter- foils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded by him as aforesaid, and the unused and spoilt ballot papers in his possession and the tendered votes list, and shall reseal each sealed packet after examination. The returning officer shall report to the clerk of the crown in chancery the result of such verification, and shall, on request, allow any agents of the candi- dates, before such report is sent, to copy it. 38. Lastly, the returning officer shall forward to Documents the clerk of the crown in chancery (in manner in warded to Digitized by Microsoft® 128 MINISTEEIAl DUTIES. crown. clerk of the which the poll books are by any existing enactment' required to be forwarded to such clerk, or as near thereto as circumstances admit) all the packets of ballot papers in his possession, together with the said reports, the ballot paper accounts, tendered votes lists, list of votes marked by the presiding officer, statements relating thereto, declarations of inability to read, and packets of counterfoils, and marked copies of registers, sent by each presiding officer, endorsing on each packet a description of its con- tents and the date of the election to which they relate, and the name of the county or borough for which such election was held ; and the term poU book in any such enactment shall be construed to include any document forwarded in pursuance of this rule. 39. The clerk of the crown shall retain for a year all documents relating to an election forwarded to Viim in pursuance of this Act by a returning officer, and then, unless otherwise directed by an order of ' That is to say, he must postmaster or deputy post- enclose and seal the several master of the place where the packets of documents and ten- notice of the members elected der the same to each of the was given, who is to give an candidates to be sealed by acknowledgment in writing them respectively. In case of such receipt, expressing any candidate neglect or re- therein the time of such de- fuse to seal the same, the livery, keeping a duplicate sheriff must endorse on one signed by the sherifi or his of the packets the fact of such deputy. If sent through the neglect or refusal ; and, as post office there must be sent, soon as possible after the com- at the time of transmitting pletion of the counting, the the packets, a letter by the sheriff or his agent must de- same post or mail to the clerk liver the packets so sealed to of the crown, informing him the clerk of the crown in the of such transmission, and Chancery Division or his de- giving bim the number and puty. The sheriff may de- description of the packets so liver them, directed to the transmitted. 6 & 7 Vict. c. 1 8, clerk of the crown, to the s. 93. Digitized by Microsoft® PABLIAMENTABT ELECTIONS. 129 the House of Commons, or of one of her Majesty's superior Courts, shall cause them to be destroyed. 40. No person shall be allowed to inspect any rnspeotion rejected ballot papers in the custody of the clerk blucjf''''^ of the crown in chancery, except imder the order of p*p^™- the House of Commons or under the order of one of her Majesty's superior Courts, to be granted by such Court on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of a petition questioning an election or return; and any such order for the inspection or production of ballot papers may be made subject to such conditions as to persons, time, place, and mode of inspection or pro- duction as the House or Court making the same may think expedient, and shall be obeyed by the clerk' of the crown in chancery. Any power given to a Court by this rule may be exercised by any judge of such Court at chambers. 41. No person shall, except by order of the House of Commons or any tribunal having cognizance of petitions complaining of undue returns or imdue elections, open the sealed packet of counterfoils after the same has been once sealed up, or be allowed to inspect any counted ballot papers in the custody of the clerk of the crown in chancery ; such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the House or tribunal making the order may think expedient; provided that, on making and carrying into effect any such order, care shall be taken that the mode in which any particular elector has voted shall not be discovered until he has been proved to Digitized by Microsoft® 130 MINISTEEIAL DUTIES. have voted, and his vote has been declared by a competent Oourt to be invalid. 42. All documents forwarded by a returning officer in pursuance of this Act to the clerk of the crown in chancery, other than ballot papers and counterfoLlfl, shall be open to public inspection at such time and under such regulations as may be prescribed by the clerk of the crown in chancery, with the consent of the speaker of the House of Conmions, and the clerk of the crown shall supply copies of or extracts from the said documents to any person demanding the same, on payment of such fees and subject to such regulations as may be sanctioned by the Treasury. 43. "Where an order is made for the production by the clerk of the crown in chancery of any document in his possession relating to any specified election, the production by such clerk or his agent of the document ordered, in such manner as may be directed by such order, or by a rule of the Court having power to make such order, shall be conclusive evidence that such document relates to the specified election; and any endorsement appearing on any packet of ballot papers produced by such clerk of the crown or his agent shaU be evidence of such papers being what they are stated to be by the endorsement. The production from proper custody of a ballot paper purporting to have been used at any election, and of a counterfoil marked with the same printed number and having a number marked thereon in writing, shall be prima facie evidence that the person who voted by such baUot paper was the person who at the time of such election had affixed to his name in the register of voters at such election the same number as the number written on such counterfoil. Digitized by Microsoft® PAELIAMENTAKT ELECTIONS. 131 44. The return ' of a member or members elected Eetum of to serve in parliament for any county shall be made by a certificate of the names of such member or members under the hand of the returning ofB.cer endorsed on the writ of election for such county, and such certificate shaE have effect and be dealt with in like manner as the return under the existing law ; and the returning officer may, if he thini; fit, deliver the writ with such certificate endorsed to the post- master of the principal post office of the place of election, or his deputy, and in that case he shaU. take a receipt from the postmaster or his deputy for the same ; and such postmaster or his deputy shall then forward the same by the first post, free of charge, under cover, to the clerk of the crown, with the words "Election "Writ and Eetum" endorsed thereon. 45. The returning officer shall, as soon as possible. Public give public notice of the names of the candidates elected, and, in the case of a contested election, of the total number of votes given for each candidate, whether elected or not. 46. Where the returning officer is rec[uired or authorized by this Act to give any public notice, he shall carry such requirement into effect by advertise- ments, placards, handbills, or such other means as he thinks best calculated to afford information to the electors. 47. The returning officer may, if he think fit, Sheriff may preside at any polling station, and the provisions of presiding this Act relating to a presiding officer shall apply to such returning officer with the necessary modifications as to things to be done by the returning officer to the presiding officer, or the presiding officer to the returning officer. ' Action for false return, see post. Chap. V. k2 Digitized by Microsoft® 132 MINISTERIAL DUTIES. Appoint- ment of persons to assist in counting votes. Powers of presiding officer's derk. Attendance of candi- date. Agents of candidates for count- ing votes. 48. In the case of a contested election for any county or borough, the returning officer may, in. addition to any clerks, appoint competent persons to assist him iu counting the votes. 49. No person shall be appointed by a returning officer for the purposes of an election who has been employed by any other person in or about the election. 50. Gthe presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorized to do by this Act at a polling station SKcept ordering the arrest, exclusion, or ejection from the polling station of any person. 51. A candidate may himself undertake the duties which any agent of his if appointed might have undertaken, or may assist his agent in the perform- ance of such duties, and may be present at any place at which his agent may, in pursuance of this Act, attend.' 52. The name and address of every agent of a candidate appointed to attend the counting of the votes shall be transmitted to the returning officer one clear day at the least before the opening of the poll ; and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, not- withstanding that his appointment may be otherwise valid, and any notice required to be given to an agent by the returning officer may be delivered at or sent by post to such address. 53. If any person appointed an agent by a candi- date for the purposes of attending at the poUing station or at the counting of the votes dies, or becomes incapable of acting during the time of the election, the candidate may appoint another agent in his place. Ckimntson v. Mason, L. R., 10 C. P. 209. Digitized by Microsoft® PAELIAMKNTAKY ELECTIONS. 133 and shall forthwith give to the returning officer notice in writing of the name and address of the agent so appointed. 54. Every returning officer, and every officer, clerk Dedaration or agent authorized to attend at a polling station, or at the counting of the votes, shall, before the opening of the poU, make a statutory declaration of secrecy, in the presence, if he is the returning officer, of a justice of the peace, and if he is any other officer or an agent, of a justice of the peace or of the returning officer; but no such returning officer, officer, clerk or agent as aforesaid shall, save as aforesaid, be required, as such, to make any declaration or take any oath on the occasion of any election.^ Form of Statutory Declaration of Secrecy. I solenmly promise and declare, that I will not at this elec- tion for do anything forbidden hy section four of the Ballot Act, 1872, which has been read to me. [Note. — The section must be read to the declarant by the person taking the declaration.] 55. Where in this Act any expressions are used Attendance requiring or authorizing or inferring that any act or thing is to be done in the presence of the agents of the candidates, such expressions shall be deemed to refer to the presence of such agents of the candidates as may be authorized to attend, and as have in fact attended, at the time and place where such act or thing is being done, and the non-attendance of any agents or agent at such time and place shall not, if such act or thing be otherwise duly done, in anywise invalidate the act or thing done. 56. In reckoning time for the purposes of the Act, Eeekoning ' It is a misdemeanor for as agent for a candidate for any retnming ofScer or his any purpose. 30 & 31 Vict, deputy, or any partner or c. 102, s, 50. clerk of either of them, to act Digitized by Microsoft® 134 MINISTERIAL DUTIES. A^nts of candidates. Sunday, Christmas Day, Good Friday and any day set apart for a pubKc fast or public thanksgiving, shall be excluded ; and where anything is required by this Act to be done on any day which falls on the above-mentioned days such thing may be done on the aext day, unless it is one of the days excluded as above mentioned. 57. In this Act^ the expression " agents of the candidates," used in relation to a polling station, means agents appointed ia pursuance of sect. 85 of the 6 & 7 Yict. c. 18, which is as follows : — "And, for the more eflfeotual detection of the personation of voters at elections, be it enacted that it shall be lawful for any candidate at any election of a member or members to serve in Parliament, previous to the time fixed for taking the poll at such election, to nominate and appoint an agent or agents on his behalf to attend at each or any of the booths appointed for taking the poll at such election, for the purpose of detecting personation ; and such candidate shall give notice in writing to the returning officer or his respective deputy of the name and address of the person or persons so appointed by bim to act as agent or agents for such purpose ; and thereupon it shall be lawful for every such agent to attend during the time of polling at the booth or booths for which he shall have been so appointed." Death of sheriff. The writ being once returned ia accordance with the provisions of these rules, the House of Commons alone has the power to alter or amend it. On the motion of a member, the House orders the clerk of the crown ia chancery to attend with the return, and it is amended as the House directs. If the high sheriff died between the issuing of the writ and its return, the House of Oommons formerly ordered a new writ to be issued to the new sheriff. But since the statute of 3 Geo. 1, c. 15, s. 8, his ' In the rules, e.g. in r. 31, the agents for counting votes are sometimes meant. The candidates are also obliged by 26 & 27 Vict. o. 29, s. 2, to appoint agents for election Digitized by Microsoft® PAELIAMENTARY ELECTIONS. 135 iinder-slieriff or deputy must, in such, a case, execute all writs, &e. in the name of the deceased sheriff, until another sheriff be appointed and sworn. If the high sheriff should go out of office, the writ. Change of. if not wholly executed, is transferred to his successor ; if wholly executed, it is returned by him into Chan- cery. There is no difference, as regards the transfer, between this writ and a common fieri facias. If he wilfully delays, neglects or refuses to make Neglect in the return of one in whose favour an election petition return. has been determined under the 31 & 32 Yict. c. 125, he may be sued for double damages and full costs of suit : provided the action be brought within one year of the- commission of the offence, or within six months after the conclusion of the trial relating to the petition. The same Act provides that when a petition com- plains of him as a returning officer, he is to be deemed for all the purposes of that Act, except the admission of respondents in his place, a respondent. Within two months aiter the election, statements statement' of the election expenses of each candidate are made dates' ex- out by their respective agents, and delivered, together with the bills and vouchers, to the sheriff, who must, at their expense, insert an abstract of them in some local newspaper within fourteen days of their delivery to him. He must preserve them, and during six months after their delivery to hiTn he must permit any voter to inspect them on payment of a fee of one shilling.^ At common law, the sheriff could not recover from the candidate any part of the expenses ;" but now he is, by the 38 & 39 Yict. c. 84, entitled to his reason- ' 26 & 27 Viot. c. 29, s. 4. ' Morris v. Burdett, 1 Camp. 218. Digitized by Microsoft® 136 MmiSTEBIAL DUTIES. SheraPs chaiges. able charges for the election, not exceeding the fol- lowing maxionmi charge for each item : — For preparing and publishing the notice of election For preparing and supplying the nomination papers . . For travelling to and from the place of nomination, or of declaring the poll at a contested election, per mile For hire or necessary fitting up of rooms or buDLdings for polling, or damage or expenses by or for use of such rooms or buildings For constructing a polling station, with its fittings and compartments For each ballot box required to be purchased For the use of each ballot box, when hired . . For stationery at each polling station For printiag and providing ballot papers, per thousand For each stamping instrument For copies of the register For each presiding of&cer For one clerk at each polling station, where not more than 500 voters are assigned to such station For an additional clerk at a polling station for every number of 500 voters, or fraction thereof, beyond the first 500 assigned to such poll- ing station . . For every person employed in count- ing votes, not exceeding six such persons where the number of regis- tered electors does not exceed 3, 000, and one for every additional 2,000 electors For making the return to the clerk of the crown For the preparation and publication of notices (other than the notice of election) & 8. d. 2 2 110 10 The necessary expenses, not exceeding at any one polling station the charge for construct- ing and fitting a poll- ing station. 7 7 1 1 5 10 1 10 10 The sums payable by statute for the neces- sary copies. 3 3 1 1 1 1 1 1 1 1 Not exceeding for the whole of such notices 201., and U. for every additional 1,000 elec- tors above 3,000. Digitized by Microsoft® PABLTAMENTABY ELECTIONS. 137 For conveyance of ballot boxes from the polling stations to the place where the ballot papers are to be counted, per mile . . . . . , For professional and other assistance in and about the conduct of the election For travelling expenses of presiding officers and clerks, per mile For services and expenses in relation to receiving and publishing accounts of election expenses, in respect of each candidate For aU other expenses . . 10 In a contested election, not exceeding 261., and an additional 3^. for every 1,000 regis- tered electors or frac- tion thereof above 3,000 and up to 10, 000, and 21. for every 1,000 or fraction thereof above 10,000. In an uncontested election, one-fifth of the above 10 2 2 In a contested election, not exceeding 101., and an additional 1^. for every 1,000 elec- tors or fraction thereof above 1,000. In an uncontested election, nU. Note. — ^Travelling expenses are not to be allowed in the case of any person unless for distances exceeding two miles from the place at which he resides. The amount of these charges is to be divided equally among the candidates — and if a candidate is nomiaated without his consent, the persons by whom his nomination is subscribed are jointly and severally liable for his share. The sheriff may require security to be given Security.- for his charges in respect of the election. The Digitized by Microsoft® 138 MrNISTEEIAl DTJTIES. maximum amount which he may demand is as foUovs : — Wliere the registered electors do not exceed 1,000 . . Where the registered electors exceed 1,000 but do not exceed 2,000 Where the registered electors exceed 2,000 hut do not exceed 4,000 Where the^registered electors exceed 4,000 but do not exceed 7,000 Where the registered electors exceed 7,000 but do not exceed 10,000 Where the registered electors exceed 10,000 but do not exceed 15,000 Where the registered electors exceed 15,000 but do not exceed 20,000 Where the registered electors exceed 20,000 but do not exceed 30,000 Where the registered electors exceed 30,000 .. £ 150 200 275 400 550 700 800 900 1,000 If at the end of two hours appointed for the elec- tion, not more candidates stand nominated than there are vacancies to be filled up, the maximum amount which may he required is one-fifth of the maximum according to the above scale. The total amount of the required security m.ust then be apportioned equally among the candidates, and if any of them fail to give security for his share within one hour afterwards he must be treated as having withdrawn from his candidature. Accounts. Within fourteen days of the return of the persons elected, all claims against the sheriff for election expenses must be sent in to him, and within twenty- one days of the return he must forward to the candi- dates or their agents a detailed account of such claims and of his charges, and of the proportion claimed from each candidate, and must allow them to inspect the vouchers. The candidates, if they object to his account, may, within fourteen days of the receipt of it, apply to the County Court to have it taxed, and Digitized by Microsoft® PABLIAMENTABT ELECTIONS. 139 the Court has power to inquire into and reduce the claims -which have been sent ia to the sheriff, and finally to give and enforce judgment for the amount that may be found due. Before the 16 & 17 Vict. c. 68, writs of election for When cities, towns and boroughs, as well as for counties, act as were directed to the sheriff of the county. But by officraSI that Act sheriffs are to make elections for their "'"^ ' counties only. Circumstances, however, may arise in which the sheriff may become the acting returning officer of a borough, &c. ; for the 17 & 18 Yict. c. 57 enacts that every writ for the election in. any borough &c. shall be directed to the returning officer or his deputy, " and in their absence to the sheriff of the county ia which the said city, borough or town is situate ; and ia all cases whatever, whenever there shall be, either from temporary vacancy, or from > some other cause, no person duly qualified in any borough, city or town to perform the duties of a returning officer for the 6am.e, the sheriff of the county ia which, &c. shall be charged with the exe- cution of the said writ ; and shall execute the same and in all respects perform the duties of and iaci- dental to the office of returning officer : provided always that it shall not be lawful for the said sheriff to receive or execute the writ, except where there shaU be no person withia the said borough, city or town legally qualified and competent as returning officer to execute the same." As the sheriff can seldom or ever become the returning officer of a borough, &c., we dwell no longer upon this part of our subject. Digitized by Microsoft® 140 MINISTEEIAX DUTIES. Section V. Exception of judge. Power of judge. THE PARLIAMENTAKY ELECTION COUET. (31 & 32 ViOT. 0. 125.) . In the year 1868 a new Court, for trying parlia- mentary election petitions, was constituted. It is a Oomt of Eecord, and the high sheriff is required, in person or by deputy, to attend it. The Court must sit ia the county (when the petition relates to a couniy election), unless, under special circum- stances, the Court changes the venue. His duties will be best gathered from a few sections of the Act which we give in full. Sect. 28 enacts: "The judge shall be receiv^d at the place where he is about to try an election peti- tion under this Act with the same state, so far as circumstances admit, as a judge of assize is received at an assize town; he shall be received by the sheriff in the case of a petition relating to a county election, and in any other ease by the mayor in the ease of a borough having a mayor, and in the case of a borough not having a mayor by the sheriff of the county ia which the borough is situate, or by some person named by such sheriff. " The travelling and other expenses of the judge, and all expenses properly incurred by the sheriff, or by such mayor or person named as aforesaid, in re- ceiving the judge and providing him with necessary accommodation and with a proper Court, shall be defrayed by the Commissioners of the Treasury out of money to be provided by parliament." ^ Sect. 29. "On the trial of an election petition under this Act the judge shall, subject to the pro- visions of this Act, have the same powers, jurisdie- 1 See 32 & 33 Vict. c. 21. Digitized by Microsoft® ELECTION PETITIONS. 141 tion and authority as a judge of one of the Superior Courts and as a judge of assize and nisi prius, and the Court held by him shall he a Court of Eecord." Sect. 30.' "The judge shall be attended on the Attendance trial of an election petition under this Act in the same manner as if he were a judge sitting at nisi prius, and the expenses of such attendance shall be deemed to be part of the expenses of providing a Court." The judges for the time being on the rota for the trial of election petitions may make or amend general rules and orders for the effectual execution of this Act. Such rules were made in Michaelmas Term, 1868,^ by which the- master of the Common Pleas Division, with whom the petition has been left, is ordered to send a copy forthwith to the sherifi, and with it the names and addresses of the agents of the parties, and the sheriff is ordered to publish these petition, &c. particulars along with the petition. The costs of lishei^" publishing this and any other matter required-to be published by the returning officer are to be paid by the petitioner or person moving in the matter, and form part of the general costs of the petition.* An Costs. order may be obtained from the master for the pay- ment of these costs, which is to have the same force as an order made by a judge, and may be made a rule of Court and enforced like a judge's order.' The time and place of trial of the petition is fixed by the judges, and a notice stuck up in the master's office, a pubuo copy of which is also sent by the master to the sheriff ^^ "' fifteen days before the day appointed for the trial. The sheriff is ordered to publish the same forthwith in the county.* The sticking up of the notice of trial L. E., i C. P. 771. ' Rule 29. Rule 12. * Rule 31. Digitized by Microsoft® 142 MINISTEEIAL DITTIES. at the office of the master is to be deemed and taken to be notice in the prescribed manner within the meaning of the Act, and such notice is not vitiated by any miscarriage of, or relating to, the copy or copies thereof to be sent as above.' The judge has power to postpone the beginning of the trial, and any notice of such postponement must, when received by the sheriff, be forthwith made public,^ as also any notice to the effect that the respondent does not intend to oppose the petition if sent from the master's office.' Section YI. POSSE COMITATTJS. PoBae Freq[uent reference is made to the sheriff's duty to raise the posse comitatus or power of the county, to aid him in the execution of writs, to suppress dis- turbance and the like. This is so well given by Dalton* that we will make no apology for quoting it at length. "The sheriff or his under-sheriff, orbayliff, &c. (says he), may — ^nay ought, if need be — to take the power of the county (sc. what number of persons they shall think good) to aid him or them to execute in every behalf the king's process or writ (be it by writ of execution, replevin, capias, &c., or any other vmt), it being the king's commandment.' And such as shall not assist the sheriff, &c. therein, being re- ' Eiile 32. ' In exeouting mesne pro- * Rule 34. cese he may, but he is not ' Kule 53. bound to take the poBse comi- ' Ch. 95; see also ib. oh. 4. tatus. 2 Wms. Saund. 345. Digitized by Microsoft® POSSE COMITATES. 143 quired, shall pay a fine to the king. Bro, ParUa- ment and Pines, 37 ; and Trespass, 266. The statute of Westm. 2, c. 39, is direct and full in this point, saying, ' Sheriffs make many times false answers, returning that they could not execute the king's pre- cept for the resistance of some great men ; wherefore let the sheriff beware, from henceforth, for such manner of answers redound much to the dishonour of the king ; and, as soon as his hayHffs do testifie that they have found such resistance, forthwith all things set apart (taking with him the power of the shire) he shall go in proper person to do execution,' &c. But, it seemeth, hy this statute, that the sheriff shall not take the power of the county but only post querimoniam factam and not before. And yet, it is holden, that the sheriff may do it by the common law; for quando aliquid mandatur, mandatur et omne per quod pervenitur ad iUud. See 3 H. 7, fol. 1, and Co. 5, 115. Also, by the statute of "Westm. 1, c. 17, if a distress be impounded in a castle or fortress, and detained, the sheriff or bayliff, taking with him the power of the shire, &e., may cause the said castle or fortress to be beaten down. And by the book 19 E. 2, Pitz. Exec. 147, upon a writ of seisin the sheriff returned that he could not deliver seisin for resistance ; and for that the sheriff did not take the power of the county, according to the statute, he was amerced twenty marks. So, in a replevin, if the sheriff return that the cattle are in a fort or a castle, so as he cannot make deliverance, he shall be amerced, causa qua supri,. Note, where the sheriff or other who bound officer is enabled to take the power of the county, *" ^^"^' they may command and ought to have the aid and attendance of all knights, gentlemen, yeomen, hus- bandmen, labourers, tradesmen, servants and appren- tices, and of all other such persons being above the Digitized by Microsoft® 144 MINISTERIAL DUTIES. age of fifteen years and that are able to travel.' To which purpose also, see the sheriff's patent of assistance, whereby there is oonunandment given to all archbishops, bishops, dukes, earls, barons, knights, and aU other the kiag's subjects within the same county, to be aiding to the sheriff, ia whatsoever belongeth to his office. And, ia such cases, they are not appointed any number; but it is referred to the discretion of the sheriff, &c., what number they will have to attend upon them, and how and in what manner they shall be armed, weaponed, or otherwise furnished. The sheriff's bayliff, to execute a replevy, took with him three hundred men armed (modo guerrino) sc. with brigan- , dines, jaokes, and guns, and it was holden lawful; for the sheriff's officer hath power to take assistance as well as the sheriff himself. B. Eiots, 2. Vide Co. 5, 72. Also, the sheriff may take posse comitatus in defence of the realm, when any of the king's enemies shall iuvade the land, &c. The sheriff also may take posse comitatus (any number that he shall think meet) to pursue, apprehend, arrest, and imprison traytors, murderers, robbers, and other felons, or such as do break or go about to break or to disturb the king's peace. And, it seemeth, that in all cases where the sheriff may take posse comitatus, there also he may make proclamation, commanding, in the Mng's name, all persons (meet) to come and go with him, and to aid him, for the apprehending of traytors or felons, suppressing of rioters, pacifying of an affray, or the like, or in any other thing belonging 'Between. 15 and 70. 2 Hen. 5, o. 8, they are described Inst. 194. Under the Eiot as liege people being sufficient Act (57 Geo. 3, u. 19, s. 10) to travel, when reasonably all persons of age and ability warned, were bound to assist. In the 2 Digitized by Microsoft® POSSE COMITATrS. 145 to his ofiB.ce, where lie shall find any resistance ; . . . The sheriff may also take posse comitatus to execute the precept or warrant of the justices of the peace, as in case of forcible entry, to make restitution, &c. But, it seemeth, in such cases, where the power of the county is to be raised or taken, that the baylifE must have warrant from the sheriff to do it, and that he must be a known baylifE or ofB.cer that must do it. Note, that the sheriff or his ofB.cers may take the power of the county by force of the common law. .... Also the sheriff's bayliffs or his servant having the sheriff's warrant hath the same authority that the sheriff himself hath, and every man is bound to aid them in their business, and that both by the common law and common reason. . . ; . If the sheriff or his under-sheriff, bayliff or servant having the sheriff's warrant shall take posse comitatus with them without any sufiB.cient cause, yet such as therein shall be aiding to the sheriff or his said ofB.cers or servant may well justifie such their doing by the com-i mandment of the sheriff or his said officers, &c. 5 H. 7, 4, 5." Moreover, the sheriff is, by the common law, a Conservator principal and special conservator of the peace in ° ^5^*™* every place within his county, and has committed to him the custody of his county for the time that he is sheriff. He is to see the peace thereof kept and maintained ; and, upon request to him made; ha may command and cause another to find sureties for the peace, and may take the same surety by recognizance.' Yet he ought not in other things to execute thei office of a justice, in the same county where he is sheriff, during the time that he is in office. All acts ' Co. Litt. 168. A. L Digitized by Microsoft® 146 imnsTEEiAL duties. done by Tiim by authority of any commission of tHe peace during tbe time of Ms shrievalty are void. But if he be put into the commission of the peace before, and that commission continue after he. is discharged of his office, he may, it seems, sit and execute the office of justice of peace, by force of that commission, ^rithout taking a new oath.' By the common law he is bound to do his best endeavour for the conservation of the peace ; and he not only may but ought to pursue, apprehend, arrest and imprison aU traitors, murderers, robbers and other felons, and all such other as do break or go about to break or disturb the peace within his county. And to that purpose, as we have said, he may take of that county where he is sheriff any number that he shall think meet to aid and assist him. And every man, beiag required, ought to be aiding therein to him ; and if any man, being required, shall refuse to aid him therein he may be fined and imprisoned, for it is a contempt against the Queen's prerogative. And by the statute of 3 Edw. 1, c. 9, upon any felony committed, all men generally shall be ready at the commandment of the sheriff, and at the cry of the county, to pursue and arrest aU felons, when any need is, as well within franchises as without, and they which make default may be fined. It seems that the sheriff may attach aU. such persons mating such default to appear before the justices of gaol delivery, there to answer their, said default. Eiot Act. By the 1 Geo. 1, stat. 2, c. 5, if any persons, to the number of twelve or more, shaU. be assembled, con- trary to the provisions of the statute, the sheriff or under-sheriff of the county, city or town, where such ' Dalt. ch. i; Hawk. P. C. b. 2, ch. 8. Digitized by Microsoft® CONSEEVATOE PACIS. 147 assembly shall be, is (as well as otlier persons named) empo-wered to disperse tliem. The ■words of the statute are : — ^He " shall, among the said rioters, or as near to them as he can safely- come, with a loud voice, command or cause to he com- manded silence to be while proclamation is making ; and after that, shall openly and with a loud voice make or cause to be made proclamation in these words, or like in eilect :" — Proclamation. Our sovereign lady the Queen chargeth and commandetli all persons here assembled immediately to disperse themselves and peaceably depart to their habitations or to their lawful business upon the pains contained in the Act made in the first year of King George the First for preventing tumultuous and riotous assemblies. God save the Queen. If any such persons, to the number of twelve or more,- after such proclamation made, shaU. remain or continue together by the space of one hour, the sheriff or his under-sheriff are empowered to command all persons of age or abiUiy to assist in apprehending them ; and if any rioter be killed or hTirt, they are indemnified from, the consequences. If any be apprehended they are to be taken before a justice of the peace to be dealt -with according to law. Section VII. CROWN BAILIFF. Before the 3 & 4 WiU. 4, c. 99, the sheriff might not improperly have been termed the treasurer of the county ; ' for it was his duty, under the solemn obligation of his oath, truly to preserve the rights of the cro-wn -within, his county, yiz. lands, rents, fran- = Dalt. CO. 4, 10, 12. l2 Digitized by Microsoft® 148 MnaSTEEIAL DITTIES. Crown debts. Fines to Le levied on receipt of process from clerks of assize ; chises, suits or services, and all that belongs to the crown; that he would not respite or delay to levy the crown debts ; that he would truly and f aithf ullj' acquit at the Exchequer all those of whom he should have received any debt or duties belonging to the crown; and would truly set and return reasonable and due issues of persons in his bailiwick. But by the above Act aU rents, payments, &c. arisiug out of crown lands, &c. were made part of the land revenues of the crown, and not receivable by him. But fines and debts are still under the sheriff's care. Debts may be due to the crown in different ways, viz., by outlawry, gift, judgment or specialty. These may be levied either upon the body or goods of the debtor or his sureties, or, upon their lands in their own hands or in the hands of their heirs or feoffees or of any other person claiming from them by descent or purchase,' Also the executors, administrators, as- signees and other possessors of the goods of the crown debtor are chargeable to the crown debt. A distress of this kind may after fifteen days be sold, if the debt be not satisfied in the meantime. But for the crown debts, fines, issues, amerciaments, penalties and forfeited recognizances, the sheriff is not chargeable or accountable, neither may he dis- train for or otherwise levy the same untO. he shall have process to levy them. As regards fines, issues, amerciaments, penalties and recognizances, the 22 & 23 Vict. c. 21 provides that the clerks of assize (and the clerk of the crown in Durhg,m and Sadberge) shall estreat them into the Exchequer, and send a vmt (according to the form in the Act) directed to the sheriff to levy them. Until all are levied or discharged in some way he is to 1 See post, tit. "Extent." Digitized by Microsoft® CUO'WS BAILIPF. 149 retain the writ. He is to make Lis return to tlie Treasury at sucL. time as the commissioners' warrant may appoiat; and his return is to be indorsed on the roll of fines, &c. which is delivered to hi-m along with the writ. AVhen the party resides in another county, or has removed, the sheriff is to issue his warrant together with a copy of the writ directed to the sheriff of the other county. These things the sheriff must do under a penalty of 50/. The recovery of fines, &c. imposed by justices of or clerk of the peace is regulated by the 3 Geo. 4, c. 46. In that ease the process to the sheriff is issued by the clerk of the peace, and the sheriff makes his return to the quarter sessions. Wreck of the sea, as belonging to the crown by Wreck of prerogative, and confirmed in many instances by act of parliament, is no longer, practically, in the sheriff's custody or care, the Merchant Shipping Act, 1854, having placed the entire management of it in other hands.' But still, by the statute of Prserogativa Regis (17 E. 2) the crown is entitled to whales and sturgeons taken in the sea or elsewhere within the realm (except in certaia places privileged by the crown), which was also the common law before the' statute. 1 17 & 18 Vict. c. 104, amended by 25 & 26 Vict. o. 63. Digitized by Microsoft® ( 150 ) CHAPTEE THE FOTJETH. WEITS OF EXECUTION. Befoee entering into matters more immediately re- lating to writs of execution, it seems convenient to place here two other subjects, essentially and insepar- ably interwoven with them, namely, interpleader and the effect of a judgment upon the property of the debtor. Section I. INTEEPLEADER. The Interpleader Act, 1 & 2 WiU. 4, c. 58,' after reciting that difficulties sometimes arise in the exe- cution of process agaiast goods and chattels, issued by or under the authority of the said Courts, bj' reason of claims made to such goods and chattels by assignees of bankrupts, and other persons, not being the parties against whom such process has issued, whereby sheriffs and other officers are exposed to the hazard and expense of actions; and it is reasonable to afford relief and protection, in such cases, to such sheriffs and other officers, provides that when any such claim shall be -made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shaU and may be lawful to and for the Court from 1 Amended by I & 2 Vict. c. 45, o. 2. Digitized by Microsoft® , tNTEEPLEADEE. 151 ■wHch. suci. process issued, or a judge upon applica- tion of sucli sheriff or otlier officer made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them as well the party issuing such process as the party maldng such claim, and thereupon to exercise for the adjustment of such claims, and the relief and protection of the sheriff or other officer, all or any of the powers and authorities hereinbefore contained, and make such rules and decisions as shall appear to. be just, according to the circumstances of the ease; and the costs of all such proceedings shall be in the discretion of the Court. One main object of this part of the Act was to give protection to the sheriff wherever, by reason of claims to the property seized, he was in danger of being sued by the execution creditor if he yielded to the claim, or by the claimant if he executed the writ. It did not mean to protect him where the resistance was to the writ itself, i.e. where the party in the cause objected to any execution on his own goods. Por then, the process itself, properly executed, would be his defence.^ But he may apply for protection whereyer two or more persons claim agaiast him the same debt, duty or property, and where the whole of the rights claimed by them may be properly deter- mined by litigation between them, the sheriff not being imder any liabilities to any of such persons beyond those which arise from the titl,e to the pro- perty in contest." The sheriff may take, but cannot be compelled to accept, an indemnity. But an engagement to in^ ' FenwielcY. ZaycoaJe, 2 Q. RlchardSj 3D. &L. 489; Catei- B. Ill ; Sollier v. Laurie, 3 v. CMgnell, 15 Q. B. 217. C. B. 334, and see Abbott v, " Crawshay y,. Thornton, 2 My. &Cr.l. Digitized by Microsoft® 152 WEITS OF EXECTJTIOlf. demnify him in the execution of any act which would be a plain violation of his duty, woidd he void— he can only protect himself from the consequences of a lawful, or apparently lawful, act.' It seems that where an indemnity is taken, the admissions of the party indemnifying are evidence against the sheriff.- In arranging the judicial decisions, it may be proper to consider them in the following order: — 1. Those within the statute. 2. Those not within the statute. 3. AppUcation, time of, &c. 4. The consequence of appearance or non-appearance of the parties. 5. Costs. The foundation of an application, under this statute, is that a bona fide claim has been made; anything short of this will not do ;* it is not necessary, however, to show that the claim has any substantial founda- tion.* A claim founded upon a lien has been held sufficient.^ A claim for part of the goods seized is enough.* Interpleader may be granted though the titles have not a common origin, but are adverse to, and independent of one another.' ■Wlen relief . Applications under this statute are not as of course. It is the duty of the sheriff to make some inquiry, and to have good ground for supposing the goods seized to be those of the execution debtor, before he applies for relief. He is not to be spared all trouble and to abstain from making aU inquiry ; but when conflicting claims are advanced on which he cannot decide, he may apply,* after giving notice ' Wright v. Lord Vcrnetj, 3 * Ford v. Baynton, 1 Dowl. Dougl. 240. 358. " Ilyhe v. Aldridge, cited in ^ Barker v. Dynes, I Dowl. 7 T. E. 665. 170. 3 Bently t. Sooh, 2 Dowl. ' 23 & 24 Vict. u. 126, s. 12. 339. 8 Holmes v. Mentze, 4 A. & * Angett v. Hadden, 15 Ves. E. 127. 244. Digitized by Microsoft® INTERPLEADER. l53 to the execution creditors, so as to ascertain whetlier they wish to contest the question.^ The goods or money in dispute must be actually in his hands at the time of his application to the Court, to entitle him to relief.^ The Court wiU protect the sheriff only from the original seizure, and not from any subsequent misconduct;^ or, he maybe relieved in respect of the adverse claims, and be left liable for neghgence in executing the -writ.* Though the claimant be an infant, the sheriff may be relieved.* Whether the process issued out of any of the Courts at Westminster, or out of the Palatine Courts, relief may be granted." It may be granted as well after as before action brought against the sheriff.' The Court, however, will not relieve the sheriff, wiennot. under this Act, where he has paid over the proceeds of the execution to the Judgment creditor" (though he had no notice of any claim untO. after he had paid over the money,' and may be willing to briag a similar amount into Court'"); nor where he has de- livered any part of the goods to the claimant ; " nor where he has accepted an indemnity." The Act does not apply to conflicting executions," unless perhaps in cases where it is doubtful which writ is entitled to precedence ; " nor where the resistance is to the writ ' Dutton V. Furniss, 35 L. * Anderson v. Calloioay, 1 J., C!h. 463. Dowl. 636. ^ Solton V. Guntrip, 3 M. & ' Scott v. Lewis, i Dowl. W. 143 ; see Say v. Carr, 7 259. iExch. 885, and Cooper v. As- '" Inland v. Bushell, 5 Dowl. preij, 32 L. J., Q. B. 208. 147. ^ Lewis -7. Jones, 2 M. & "W. '' LCorton v. Devon, 4 Exoh. 204. 497. * Sraclcenhury v. Xawric, 3 '* Ostler v. Mower, i Dowl. 00^1.180. 606. SeeaisoPatomiv.Camp- 5 ClaridifeY. Collins, 7 Dowl. iell, 12 M. & W. 277. 698. . ^^ Sraffffy.Sopkins,2'Doyd. « Tidd's New Pr. 575. 151. ' Green v. Brown, 3 Dowl. " Day v. WaldooJc, 1 Dowl. 337. 523. Digitized by Microsoft® 154 "W3ITS OF EXECTJTION. itself;' nor when lie has seized gooda in execution ■which were under a distress for rent; for it is the duty of the sheriff to inquire whether the rent be due, and if it is, to satisfy it;^ nor when he with- draws from possession on a claim being set up;' nor when, at the request of either pariy, he delays his application, and by that delay afEects the relation of parties.* So, if the sheriif has any interest," or"_i£ his under-sheriff has any,^ relief wiU. not be granted, although the sheriff swears that he does not coUude with him.'' So, where an under-sheriff, who was acting as attorney for certain creditors of the defen-r dant, informed them of a writ of fi. fa. at the suit of the plaiatiff having been placed iu his hands to execute, by which means the issuing of a fiat ia bankruptcy was accelerated, and the plaintiff's exe- cution thereby defeated, the sheriff was refused relief.' And where the adverse claim was merely that of a partner of the execution debtor, who gave notice to the sheriff to quit possession, on the ground that the goods seized were partnership pro- perty, and that the debtor had no beneficial interest in them, being indebted to the firm beyond the amount of his share in the effects, relief was refused." The crown cannot be made a party to an inter- pleader rule.'" Nor can a foreigner, residing abroad, be compelled to come in." The Act contains no clause ' Femeich v. Laycoch, 2 Q. ' But see Salt v. Frost, 3 B. 111. H. &N. 831. 2 Kmjthorny.Bmh, 2Dowl. ^ Cox v. Bahie, 2 D. & li. 641. 719. 3 Crumps. Day, iCB.IQiO. » Holmes v. Mentze, 4 A. & * Mutton T. Yotmg, 4 C. B. E. 127; and see Weekly Notes, 371; ib. 760. 1875, p. 204. ° Duddin v. Long, 3 Dowl. '" Candy v. Maugham, 7 So, 139. N. C. 402. " Ostler V. Bower, i Dowl. " Faforiiiy.Camplicll, 12M. 605. & W. 278. Digitized by Microsoft® rNTEEPLEADER. 155 to proHHt the slieriil from applying to tiie Court, as before, to enlarge tlie time for making Ms return; and, when he is not relievaWe under the statute, he may move the Court for that indulgence. The application may be to the Court or to a judge AppUcation. in chambers; if made to the latter, the costs are in his discretion, subject to review by the Court.^ The application must be made promptly,^ or -within a reasonable time after the claim is made ; ^ and any delay must be accounted for in the first instance. If the sheriff cannot come at once to the Court, being delayed by a rule of Court staying proceedings, it is his duty to watch the rule, and to make his application within a reasonable time after it is dis- charged.* The affidavit in support of the application should Affidavit, state the seizure of the goods by the sheriff under the execution, that they or the proceeds (as the case may be) are, at the time of the application, in his hands, that a claim has been made, that in consequence of such claim he does not know to whom the goods or proceeds belong, or to whom he is liable, and that he is ready to pay into Court, or dispose of the subject- matter of dispute in such manner as the Court may order and direct. Where there is any delay, it must be accounted for in the first instance, for no supple- mental affidavit is allowable on showing cause.'* The Act does not require the sheriff to deny collusion with any of the parties." It is not necessary for an exer cution creditor, appearing on a motion under this 1 1 & 2 Vict. c. 45, s. 2; » Beale v. Overton, I'M., k Teggin v. Langford, 10 M. & W. 534. W. 556. By consent it may * Gooli T. Allen, 2 Dowl. 11. be made to a master, subject to '' lb. appeal to a judge at cbambers. " £ondv,Woodhall,iDowl. 2 Muttm V. Ymmg, 4 C. B. 351. 371 ; Cnmp t. Bay, ib. 760. Digitized by Microsoft® 156 -vviiiTS OF EXECxrrios'. Act, to produce an aflB.davit.' But the nature and particulars of tlie claim should, it seems, he authen- ticated on oath.- AJidavit. In the High Court of Justice, ( A. B. plaintiff Q. B. Div. Between \ and ( C. D. defendant. Gf. P. of in the county of • officer to the sheriff of " maketh oath and saith that vmder and by virtue of a writ of fi. fa. directed to the said sheriff commanding him that he should &c. [as in writ) and indorsed to levy the sum of £ besides and by virtue of a warrant of the said sheriff granted on the said writ he this deponent did on the day of • instant seize certaia then being the property of the said defendant situate at M. within the bailiwick of the said sheriff and that the said &c. now are in the possession of the said sheriff. And this deponent further saith that on or about the day of instant he this deponent was served with a written notice of which the following is a true copy [eopt/ the notice]. And this deponent further saith that this application is made at his own expense and for his own in- demnity and without collusion with the defendant or any other person ; and that the said sheriff is not to the knowledge or belief of this deponent indemnified by any person whatsoever. Sworn &c. G. P. Appearance No oue has a right to be heard, xmless he be called mons. on by the rule or summons, though he be in fact a claimant; and, if called in one character, he cannot, it seems, appear in another.' The claimants may appear without taMng ofBce copies of the aiEdavits on -which the rule was obtained.* Aifidavits on show- ing cause may be sworn at any time before cause is shown.^ When a new claim is raised £if ter a rule nisi is obtained, the sheriff may malce the new claimant a party to the rule, and the Court will enlarge the rule until the other claimant consent.* If the claimant has ' Angus v. Wbotton, 3 M. & 55 ; but see Ibbotson v. Chand- W. 310. Icr, 9 Dowl. 250. ' Powell V. Loclc, 3 Ad. & E. * Mason v. Redshau-, 2 Dowl. 315; Webster v. Delajkld, 7 C. 595. B. 187. 5 Sraiiie v. Sunt, 2 Dowl. 3 Clarice v. Lord, 2 Dowl. 391. « Kirk T. Clarle, 4 Dowl. 363. Digitized by Microsoft® INTEBPLBADEE. 157 sustained any special damage by a sale of tlie goods or tlie like, it must be distiactly brougM before the Court or tlie judge at tlie time the rule or order is made.^ The case may, at the request of either party, where Hearing. from the smallness of the amount in dispute, or of the value of the goods seized, it appears desirable, be disposed of summarily f or the rule or summons may be at once discharged (in -wMch case the sheriff is entitled to a reasonable time to return the writ before an attachment can issue) f or, one or more issues may be directed to be tried (in which case who is to be plaintiff and who defendant, and what admissions are to be made by the defendant, &o,, are in the discre- tion of the Com-t or judge, as may best suit the justice of the case).* In general, the claimant is plaintiff, and the execution creditor is defendant. "Where the facts are undisputed, the judge may de- cide the question without directiag an action or issue, or if he think it desirable, a special case may be stated.* The goods are, commonly, ordered to be sold, and the money brought into Court, to abide the event.^ An execution creditor's claim may be barred by the Court as well as that of an adverse claimant.'' If the sheriff and the judgment creditor appear, the former to support his rule, the latter to resist the adverse claim, and the adverse claimant does not appear, the sheriff's rule is made absolute, and the adverse claimant is barred as against the sheriff.^ An execu- 1 Ahhott V. Bkhards, 3 D. & * 23 & 24 Vict. u. 126^ a. 15. L. 488. « lb. s. 13. 2 23 & 24 Vict. 0. 126, s. 14. ' Ford v. Mlhj, 5 B. & Ad, 3 Sex T. Hertford, 5 Dowl. 885. 144. * Boiodkr v. Smith, 1 Dowl. * Bramidge v. Adshead, % 418. Dowl. 69. Digitized by Microsoft® 158 WBITS OF EXECXITI03S-. tion creditor, when made defendant, may be compelled to give security for costs, wlien Le resides out of the jurisdiction of the Court, is insolvent, or the Hke.^ Judgment. The judgment in any such action or issue, and the decision of the Court or Judge in a summary manner are final and conclusive against the parties, and all persons claiming by, from, or under them.^ In the latter case, the judge cannot, even by consent of the parties, give a right of appeal to the Court.^ Feigned Issue.^ In tKe High Coiirt of Justice, Division [or in any inferior Cowt, as the case may be'\. Middlesex to wit [or such other county as may be dtrecte. the purpose of informing the & L. 660; Dcller v^ Friclcett, conscience of the Court, and 15 Q. B. 1081. is the creature of the Court. 2 23 & 24 Vict. c. 126, 8. 17 ; They will not, therefore, aUow Kiny T. Simmmids, .7 Q. B. the jus tertii to be set up. 316; 1 H. L. C. 775, S. C; Caiw v. .Bn>, 7 M. & W; 183 ; King v. Birch, ib. 674. Belcher y. Fatten, 6 C. B. 618. ^ Bodds V. Sliepherd, 1 Ex. And see Cha^ v. GobU, 3 So. B. 75. N. C. 249 ; Shingler v. Jlolt, * This form is given by the 30 L. J., Ex. 322. 8 & 9 Vict. c. 109, but the ^ gee 30 L. J., Exch. 319— adoption of it is not oompul- 323. sory ; Zmrd v. Butcher, 2 C. ^ Zuchin v. Simpson, 8 Scott, B. 868. An issue under the 676. Interpleader Act is solely for Digitized by Microsoft® INTEEtLEABER. 159 judge/ subject to appeal to the Court.^ In the exer- cise of that discretion, they have laid it down, as a general rule, that if the execution creditor does not appear he' must pay the claimant's costs;' if the claimant does not appear, he must pay the execution creditor's costs,^ hut not the sheriff's/ and if neither party appear, each as against the sheriff wUl be barred, and the sheriff may levy his poundage and expenses before abandoning the remainder of the x levy.^ The sheriff is not, in general, allowed costs, Sheriff's 1 ■ T ■ 1 COStB. except such as he may have incurred in dealing with the goods seized under order of the Court, or for the benefit of the parties; these he is entitled to receive from the unsuccessful party.' Also, if he be brought improperly before the Court, the costs of his applica- tion for relief will be allowed him. As the sheriff is not entitled to receive, so is he not, in general, liable to pay costs, if he act fairly.^ But if he do not act fairly, or be guilty of any laches in making his appli- cation, as to time, giving notices, or the like;" or, if he make no inquiry into the nature of the claim set up ;"• or, if he do not pay the landlord his rent, after proper notice," the Court will make the sheriff pay the costs of the application, and likewise the costs of any security ordered to be given. Such expense as he may incur, as agent of the parties, after his application. 1 1 & 2 Viot. 0. 45, s. 2. " JlveUigh v. Salsbitry, 5 See Carr t. Edwards, 8 Dowl. Dowl. 369. 30 ; Lewis y. SoUing, 3 So. N. ' Bland t. Delano, 6 Dowl. 0. 191. 293. ^ Teggin v. Langford, 10 M. « Clarice v.' Lord, 2 Dowl. & W. 556. 65. 3 Beswick-v. Thomas, 5 Dowl. " Bland v. Delano, 6 Dowl. 458. 293. * Bawdier v. Smith, 1 Dowl. " In re Sheriff of Oxford, 6 418. Dowl. 136. *■ Jones T. Lewis, 8 M. & W. " Clarke v. Lord, supra. 264. ..'-'- Digitized by Microsoft® 160 -WEITS OF EXECUTION'. ■sviU be allowed;' and any extra expense he may liave been put to by obeying tbe rule of Court directing an - issue.^ So, where the parties come to an arrange- ment after an order made under the statute, the sheriff -will be paid, if there be anything to show that their conduct was vexatious.^ Costs incurred by keeping possession in consequence of a party refusing to consent to a judge at chambers makiag an order in the case, no authority for that purpose being given by the statute, are not allowed to the sheriff.* If an issue be directed, the costs are either made to abide the event or are reserved. In the former case, they will fall on the party who fails ; in the latter, they will be subsequently arranged, as may appear just and reasonable. Thus, where they were reserved — the issue was as to five horses, and the plaintifE made out his claim only to two : the plaintiff was allowed only a portion of the costs of the issue to be ascertained by the master, and he was held entitled to the costs of the original application, but not to those of the subsequent proceedings to obtain costs, inasmuch as his claim was too large.^ The Court may adjudicate as to the costs of appearing to the sheriff's rule, and of an issue directed to be tried under it, although the trial of it has already taken place." Costs of AVhen an issue is directed to be tried between an execution creditor and a claimant, and the latter re- fuses to try and abandons his claim, he will be liable to pay the execution creditor's costs down to the time of the claim being abandoned, and of applying to take ' Vnderden v. Burgess, 4 635. Dowl. 104:. ^ Lewis v. Molding, 3 Sc. N. '^ Armitage Y.Foster, I "H-.k C. 191; Carr v. Edwards, 8 W. 208. Dowl. 30. ^ Cox V. Fenn, 7 Dowl. 51. '^ Seaward \. TViUiam, X * Clarli T. Chetwode, 4 Dowl. Dowl. 528. Digitized by Microsoft® INTEEPLEADEE, 161 the money out of Court.* Where the Court ordered a claimant to proceed to trial, upon bringing a sum of money into Court, which he neglected to do, he was held liable to pay as well the costs occasioned by his false claim, as the costs of the application to the Court to compel him to pay them; and that, too, although no previous application had been made to him.^ But the costs should be previously delnanded, otherwise the costs of the application will not, in general, be allowed.^ The sheriff will be allowed the extra ex-! pauses he is put to by obeying the rule of Court directing, an issue.* Also the expenses of a sale effected by the authority of the Court, although it appear on the trial of the issue that the seizure was wrongful.^ When the issue is tried, the successful pariy is, entitled, there being no order inconsistent there- with, to the money paid into Court, the costs of trying the issue, and the costs of the application to the Court, although he has not applied to the opposite side for their consent to take the money out of Couxt.^ All rules, orders, matters, and decisions, to be, Eemedy for. made and done in interpleader proceedings, except only the affidavits to be filed, may, together with the. statement of claim (if any), be entered of record, with a note in the margia expressing the true date of such entry, to the end that the same may be evidence, in future times if required, and to secure and enforce ' Wills T. Hoplcins, 3 Dowl. * Armitage y. Foster, 1 H. 346. & W. 208. - Scales v. Sargeson, 3 Dowl. * Bland v. Delano, 6 Dowl. 707. 293. 3 lb. ^ Mereiiithy.Bogers,TDowl. Digitized by Microsoft® 162 -vmiTS OP EXECUTION. tlie payment of costs directed by any siicli rule or order; and every such rule or order so entered shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments; and in case any costs shall not he paid within fifteen days after notice of the taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same, together with the costs of such entry, and of the execution; and the sheriff or other officer exe- cuting any such writ shall be entitled to the same fees and no more as upon any similar writ grounded upon a judgment of the Court.' A party entitled to costs under the Interpleader Act, may pursue his remedy for their recovery either under that Act or under the 1 & 2 Vict. c. 110, s. 18. If he proceed under the latter, he need not enter the order for them of record.^ Application Upon an application imder an interpleader rule (as to get money out of Court, or the like), the affidavit should be entitled in the original cause.' The suc- cessful party is entitled to the costs of the application, though cause be shown in the first instance.* Where a judge at chambers has, under this Act, directed money to be paid into Court to abide the event of an issue, and has reserved the question of costs, an application for the money must be made to the judge, and not to the Court.^ The sheriff's right to poundage depends on the event of the issue, i.e. where the goods have been sold, or the circumstances of the levy have been such 1 1 & 2 "WiU. i, 0. 58, 8. 7 ; N. 0. 834. 23 & 24 Vict. c. 126, s. 18. ■» Ctiscly. Pariente, 8 So. N. 2 Cetti V. Jinrtktt, 1 Dowl. C. 240. N. C. 928. <> Marks\.Midgway,-i.'E.:s.Qii. " rarkiitii V . PeiDiel!, 7 So. 8. Digitized by Microsoft® JUDGMENTS. ^G3 as to entitle Tn'm to his fees, lie ■wUl be allowed to retain them if the issue be decided in favour of the judgment creditor.^ Section II. JUDGMENTS. Judgment is the sentence of the law pronounced by a Court of justice upon a matter contained in the record, and when pronounced the original debt becomes merged in it.^ By the common law it created no Hen on the body. Common. nor upon the property, real or personal, of him. against whom it was pronounced. We speak of a judgment pronounced in the case of a subject; for, by the common law, the lands being held mediately or immediately of the king, they were as much subject to his demands, by the judgment of his Court, as if there had been a reservation in the original tenure ; and, therefore, in such a case, the judgment, per se, bound the lands from the time of the record of the debt. So stood the common law before the Statute of Statute lair. "Westminster the Second (13 Edw. 1, c. 18), which gave the judgment creditor an election between a fi. fa. and an elegit ; and created in his favour a general lien upon all the debtor's lands, which he then had, or which he might afterwards acquire. Upon this followed, at long intervals, several statutes, «8pecially the Statute of Frauds (29 Car. 2, c. 3, ss. 14, 15), and the 1 & 2 Vict. c. 110, s. 13, which made the judgment a specific charge on the beneficial interest of the debtor in any such lands. ' Barker v. Dynes, 1 Dowl. ^ lEx parte Oriental Finan- 169. cial Corporation, i Ch. D. 33. K 2 Digitized by Microsoft® 164 ■WEITS OF EXECUTION. Judgments, &c. not to affect land until land delivered in execution. 27 & 28 Vict. C.112 Interpreta- tion of tei'ms. Writs of execution to be registered in manner prescribed by 23 & 24 Vict. c. 38. No-w, ho-n'ever, the effect of a judgment in charging the land of the debtor is governed by the 27 & 28 Vict, c. 112, which, after reciting that it is desirable to assimilate the law affecting freehold, copyhold and leasehold estates to that affecting purely personal estates, in respect of judgments, statutes and recog- nizances, enacts that " no j udgment, statute or recogni- zance shaU affect any land, of whatever tenure, until such land shall have been actually delivered in exe- cution by virtue of a writ of elegit or other lawful authority, in pursuance of such judgment, statute or recognizance. "In the construction of this Act the term 'judg- ment' shall be taken to include registered decrees, orders of Courts of equity and bankruptcy, and other orders having the operation of a judgment ; and the term ' land ' shall be taken to include aU hereditaments, corporeal or incorporeal, or any interest therein; and the term ' debtor' shall be taken to include husbands of married women, assignees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons. "Every writ or other process of execution of any such judgment, statute or recognizance, by virtue whereof any land shall have been actually delivered in execution, shall be registered in the manner pro- vided by the 23 & 24 Vict. c. 38,' but in the name of the debtor against whom such writ or process is issued, instead of, as under the said Act, in the name of the creditor ; and no other or prior registration'* of such judgment, statute or recognizance shall be or be deemed necessary for any purpose ; and no reference to any such prior registration shall be required to be ' By leaving a memoran- dum with the senior master of the Common Pleas. ^ Kegistration of the judg- ment used to be necessary to give a lien. Digitized by Microsoft® JUDGSIEJTTS. 165 made in or by the memorandum or minute of such, writ or other process of execution -which shall be left with the senior master of the Court of Common Pleas for the purpose of such registry. "Every creditor to whom any land of his debtor Oreditorto shall have been actually delivered in execution by deiiveieTin virtue of any such judgment, statute or recognizance, entS^°to and whose writ or other process of execution shall be JI^^S" duly registered, shall be entitled forthwith, or at any 'f™ anceiy time afterwards while the registry of such writ or for sale. process shall continue in force, to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in such land, and every such petition may be served upon the debtor only; and thereupon the Court shall direct all such inquiries to be made as to the nature and par- ticulars of the debtor's interest in such land, and his title thereto, as shall appear to be necessary or proper; and in making such inquiries, and generally in carry- ing into effect such order for sale, the practice of the said Court with respect to sales of real estates of deceased persons for the payment of debts shall be adopted and followed, so far as the same may be found conveniently applicable. "If it shall appear on making such inquiries that wiiero flicie any other debt due on any judgment, statute or crautora, recognizance is a charge on such land, the creditor "^eto be entitled to the benefit of such charge (whether prior tS!'"^™ or subsequent to the charge of the petitioner) shall be served with notice of the said order for sale, and shall after such service be bound thereby, and .shall be at liberty to attend the proceedings under the same, and to have the benefit thereof; and the proceeds of such sale shall be distributed among 'the persons who may be found entitled thereto, according to their respective priorities. Digitized by Microsoft® 166 ■WEITS OF DXECUTIOJr. Parties daimiug interest througli debtor bOTmd by order for bale. Delivery in exe'cution. Equitable interest. "Every person claiming any interest in sucli land tltrougli or under the debtor, by any means subsequent to tbe deliveiy of sucli land in execution as aforesaid, shall be bound by every such order for sale, and by all the proceedings consequent thereon." The .definition of "land" in the above Act includes certain things incapable of actual delivery : the " de- livery in execution" must therefore be understood as having regard to the subject matter of the execution, and is not to be confined to land capable of delivery at law by the sheriff. If it be such land it may be delivered under an elegit,' but if the debtor's interest is equitable, such as an equity of redemption, then some other kind of deliver}', actual or symbolical, becomes necessarj". In such cases, the inchoate right of the judgment creditor under the 1 & 2 Yict. c. 110, s. 13, though giving him no lien on the land, and no right to obtain an order for sale, may still be made the foundation of an action to assert his equitable rights. It seems, however, that he ought to sue out an elegit and deliver it to the sheiifif before commencing such an action.^ The creditor may, therefore, bring an action to remove any legal difficulty ■which prevents him from making his judgment a complete charge,' or to redeem a prior title, such as an elegit not extending to the whole interest of the debtor;* and the relief given by the Court, by the appointment of a receiver'* or other- wise, is substantially a delivery in execution bj'' lawful authority within the Act, and constitutes a complete charge upon the land. The order of the Court, in 1 Post, Sect. V. . ^ In re Cowbridge Hail. Co., L. E., 5Eq. 413. ^ Thornton v. Finch, 4 GifE. 41.'). •• In re Cowbridge Mail. Co., L. E., 5 Eq. 413. 5 Welhy. Kilpin, L. E., IS Eq. 298. Digitized by Microsoft® bouiid. JUDGMENTS. 167 fact, effects as to eqiiitaUe interests wliat the action of the sheriff does as to legal estates.' Thus -we have the 27 & 28 Vict. c. 112, iDlacing so far all hereditaments, corporeal or incorporeal, or any interest therein (including leasehold estates), on the same footing -with purely personal estates, but leaving untouched all rights given by earlier Acts, except so far as it expressly takes them away. What, then, is the condition, in that respect, of J^ion purely personal estates, to which all other interests are assimilated? By the common law, as we have said, the judgment per se did not bind them. They were bound from the time of the teste of the writ of execution.- By the Statute of Frauds' the time Ti^as carried down, as between the creditor and third parties, to the delivery of the writ to the sheriff, who therefore can only seize, as against such third parties, what belongs to the debtor when the writ is deKvered to him. Still, however, as between the judgment debtor and creditor, the goods remain bound from the teste of the writ ; so that, for example, if the debtor die before the writ is delivered to the sheriff, all goods which belonged to him at the teste of the writ may be seized under it. Executions at the suit of the Crown are also not mentioned in the statute ; there- fore, in such cases, as for example on a writ of extent, the goods are bound from the teste of the writ.* The sheriff has no property in the goods until seized: the debtor may lawfully remove them into another baili- wick ; but after the sheriff has once seized them, he acquires a special property in them, and may maintain trover for them,** though the actual property is not 1 HattonT. Eaywood, L. E., ' 29 Car. 2, o. 3, s. 16. 9 Ch. 229. * R. T. Arnold, 7 Viner, 105, - ^ 1 Wms. Saund. 219 g, ^ Ex parte Williams, 'L.'R., n. (i!) ; GiUs v. Graver, 9 Bing. 7 Ch. 317. 128. Digitized by Microsoft® 168 WEITS or EXECTJTIOX. Cleaning of term '• bound." Entry of judgment. changed until sale.'- Nov, hj the Mercantile Law Amendment Act,'' in order to remedy the inconvenience of the goods being bound by an act of which third parties could have no knowledge, it is enacted that as between such third parties and the execution creditor the goods are not bound by any writ of execution until actual seizure has taken place, provided that the title of such third party to the goods be acquired bona fide and for valuable consideration, and without notice that any writ against the goods had been delivered to the sheriff for execution,' otherwise they will, as before, be bound by the delivery of the writ to the sheriff. The meaning of the term "bound" is that the exe- cution creditor obtains, as against the debtor himself and all persons claiming by assignment from or by representation under him, what has been called a quasi-lien on the goods, so that the debtor cannot dispose of them, unless in market overt, so as to prevent their being taken in execution. It does not imply that the creditor becomes a secured creditor within the meaning of the Bankruptcy Act ; to effect this a seizure is always necessary,* because, until then, the property in the goods remains in the debtor. Aiter verdict obtained, the judge orders judgment to be entered, either immediately, or at a subsequent date upon motion, and the judgment is then entered by the proper officer in a book kept for the purpose, and dated as of the day on which it was pronounced, or, where no judgment is pronounced in Court, then ' Giks V. Grovei; 9 Bing. 128. 2 19 & 20 Vict. 0. 97, 8. 1. " The title would not be de- feated if the writ is delivered with instruotious to suspend, execution. Sunt v. Hooper, 12 M. & W. 664. ^ Slater v. Fwder, L. R., 6 Ex. 228; ih. 7 Ex. 95; Hx parte jRocie, L. R., 6Ch.795; Fx parte Jones, L. E., 10 Ch. 663; JSx parte Jamaon, 3 Ch. D. 488. Digitized by Microsoft® EXECUTIOX. 169 as of the day on which the requisite documents are left at the office ; and from that date the judgment takes effect. Immediately thereupon the costs may be taxed, and execution may issue. By the Judgments Extension Act, 1868,^ the certi- ^^?^^ ficate of a judgment, obtaiaed in any of the superior Act. Courts of common law, may be registered in Ireland ctamiBii-. or Scotland, and so give it the effect of a judgment ; and the certificate of a judgment or decreet obtained there may be registered here, and from the date of registration will have the effect of a judgment of the Court in which it is registered. Section III. EXECUTION. Execution in our law signifies the last performance wiiat. of an act, as of a judgment, statute, or the like ; it is described by Blackstone as a "putting the sentence of the law in force." The cases in which this becomes the duty of the sheriff acting under a writ of execu- tion issuing from the High Court of Justice, will be discussed in the following sections of this chapter. The term " writ of execution" is generally used to signify a writ grounded on a judgment or order of the Court out of which it issues. It includes writs of fi. fa., capias,^ elegit, sequestration, and attachment, and all subsequent writs that may issue for giving -effect thereto.' " The antient executions," says Gilbert, "are to be distinguished, as they were in the king's Court, and in the Courts of inferior lords. In the king's Court they could levy the money itself 1 31 & 32 Viot. i;. 64. only. 2 This must be taken to ' Jud. Act, 1875, Ord. 42, mean capias on final process i\ 6. Digitized by Microsoft® 170 ■WHITS OF EXECTJTION'. Different Mnds of execution* upon the party against whom the judgment was given. In the lord's Court they could only levy distresses: a pain to force obedience to the lord's commands ; and whether they were justly levied or not was to be reconsidered again in the ki n g's Court. "It is generally said, iu the books, that there was only a lev. fa. and a fi. fa. for the subject, in the case of an execution. This is true, for it is plain that the capias and elegp-t came in by statute.^ But at conunon law they awarded execution some- times by the words of hab. denaiios, fa. denariosj fi. fa. denarios, lev. fa. denarios f and all these forms were used at first indistinctly, as words tantamount to the same thing. This appears even in the king's case, by the several forms yet extant on record ; but afterwards they began to distinguish the writ into two several forms, viz., the fi. fa. and the lev. fa., and confined the writs to be used in distinct cases.' " At common law a man by judgment authenti- cated his debt, and it gave an authority to the party to sue his execution within a year and a day ; but if he did not, it was presumed to be paid, and after that time the law allowed him to plead paym.ent and a release of such recorded debt." Bj- statute. Now, by the Judicature Acts,^ every person, whether party to an action or not,^ to whom any simi of money or any costs shall be payable under a judg- ment, or under any order of the Court or a judge, whether in an action, cause or matter,' shall, imme- diately after the time when the judgment or order was duly entered, be entitled to sue out one or more Tune for execution at common law. 1 See Hob. 66. - 3 Co. 11. ^ The lev. fa. is now very unusual in civil process except in cases of outlawry. ■• Ord. 42, I'. 15. = lb. r. 21. lb. 1. 20. Digitized by Microsoft® EXECUTIOlf. 171 Tvrit or ■writs of fieri facias, or one or more "writ or "writs of elegit to enforce payment thereof, subject nevertheless as follows: — (1) If the judgment is for payment within a period therein mentioned, no such "writ as aforesaid shall be issued until after the ex- piration of such period ; (2) the Court or judge, at the time of giving judgment, or the Court or a judge afterwards, may give leave to issue execution before, or may stay execution until any time after, the ex- piration of the periods prescribed. And in the Com-t for Divorce and Matrimonial Causes, a writ of fi. fa., or writ of sequestration, or writ of elegit is issued as of course in the registry upon default of payment of any siun of money at the time appointed by any order of the Court for the payment thereof, and upon afiidavit of service of the order and non-payment.' Where an action is brought for detention of, or Delivery of breach of contract to deliver, specific goods, the g^ds." defendant may be ordered to deliver up the specific goods. The writ of execution will then be for the delivery of such goods.- If they be not delivered up, the sheriff, will be directed by writ of distringas to distrain the defendant by all his lands and chattels,^ or a writ of attachment or sequestration may issue.* A judgment for the payment of money into Court Payment of may be enforced by writ of sequestration, or in cases coS "^ " in which attachnaent is authorized by law, by attach- ment.^ A judgment for the recovery or for the delivery of EecoTeiy of the possession of land may be enforced by writ of possession.^ 1 > EiJe 203, AprU, 1877. r. 4. 2 Jud. Act, 1875, Ord. 49. ^Ib.T.2; see Ords. 45 and " 17 & 18 Vict. e. 125, s. 78 ; 47. "Writs of sequestration are 19 & 20 Vict. c. 97, s. 2. not directed to the sheriff. * Jud. Act, 1875, Ord. 42, • « lb. r. 2 and Ord. 48. Digitized by Microsoft® 172 VEITS OF EXECITTIOIf. Other acts. Stock and shares. Ecclesias- tical goods. Husband and wife. Partners. A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attach- ment, or by committal.' "Where the property of the judgment debtor con- sists of stock or shares, a charging order may be made as provided by the 1 & 2 Vict. c. 110, ss. 14 and 15, and the 3 & 4 Vict. c. 82, s. 1, and if such stock is transferable at the Bank of -England a writ of distringas may be sued out under 5 Vict. c. 5.' These orders extend to the interest of the judgment debtor whether in possession, remainder or reversion, and whether vested or contingent, in the stocks and shares as well as the dividends and produce of them ; and their practical effect is to secure that the pro- perty is not dealt with without notice to the creditor. They do not, however, concern the sheriff. Ecclesiastical goods are reached by process directed to the bishop of the diocese, and not to the sheriff. When a husband and wife are sued jointly, if by confession or otherwise it appears that the husband ' is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband and wife, and as to the residue, if any, of such debt or damages, the judgment shall be a separate judgment against the wife,' and execution may issue accordingly. When judgment is obtained against partners in the name of the firm, execution may issue either against any property of the partners as such; or against any person who has admitted on the pleadings that he is or has been adjudged to be a partner ; or ' Ord. 42, i.. 5 and Ord. 44. ' 37 & 38 Vict. s. 4. » Ord. 46. Digitized by Microsoft® EXECUTION. 1 73 against any person who has been served as a partner ■with, the writ of summons, and has failed to ap- pear.' Although the execution on a joint judgment must Joint juflg- he joint, yet it may he levied upon one defendant only, and it is for him to seek contribution from the others.^ Where judgment is recovered or an order made Com-iots. against any convict, either before or after conviction, execution may issue against his property in the hands of the interim curator, if such person have been ap- pointed by the justices, or in the hands of any other person who may have taken upon himself the posses- sion or management thereof without legal authority, in the same manner as if such property were in the possession or power of such convict; and all such judgments or orders may likewise be executed by writ of scire facias or otherwise, according to the practice of the Court, against any such property which may be vested in the administrator of the convict.^ As between the original parties to a judgment Time for J. • J. J." 'i-L • . execution. execution may issue at any time withm six years from the recovery of the judgment.* Where six years have elapsed, or any change has taken place by death or otherwise in the parties entitled or liable to execution, the party alleging himself to be entitled to execution may apply to the Court or a judge for leave to issue execution accordingly.* There are a few general maxims, respecting writs General > Jud. Act, 1875, Ord. 42, 3 33 & 34 Vict. c. 23, r. 8. 8. 27. ' Berries v. Jcmieson, 5 T. * Jud. Act, 1875, Ord. 42, E. 556 r. 18. 5 lb. r. 19. Digitized by Microsoft® 174 WEITS OF EXECUTION. of execution, which conveniently range themselves in this place : — Quando jus domini regis et subditi insunul con- ciirrnnt jus regis preeferri debet.^ The crown cannot be prejudiced by the laches of any of its officers.* "Writs of execution are judicial, i. e. they are grounded on the judgment, and are not issued with- out the production of it, except by order of the Court.^ The writ must accord, in its mandatory part, with the judgment, or show on the face of it why it does not, and it must be indorsed with the name and address of the party suing it out.* Being founded on the judgment it must issue out of the Court where the judgment is, and a praecipe must be filed by the party issuing it.' A sheriff is the immediate officer of the High. Court to execute writs ; and whether a writ comes to him with or without authority, or is awarded against whom it does not lie, he cannot doubt or dispute its validity.^ 1 1 Wms. Saund. 219 g, h, ^ 2 Wms. Saund. 101 g, g ; n. [t] ■ 2 ib. 709, n. (y). Jud. Act, 1875, Ord. 42, r. 10. Broom's Maxims, 49 ; JJ. v. ^ MarshaUea case, 10 Co. 68 ; JEdwards, 9 Ex. 32. Thomas v. Stidson, 14 M. & W. 2 JR. V. Senton, 2 Exct. 220. 365, 16 ib. 885, Dalt. ch. 20; 3 Co. Litt. 289 b. This Brown v. Watson, L. T., 23 maxim, still prevails though N. S. 745. Unless a different ground writs are abolished by obligation be oast upon him " The Comm. Law, Proc. Act, by statute law, see Chtston v. 1852;" Jud. Act, 1875, Ord. GMs, 12M. & W. 120; Groves 42, r. 9; Bolton v. Bolton, 3 v. CotoAam, 10 Bing. 6. Erro- Ch. D. 276. neous process is a justification, * Femiolr v. Brace, 1 Salt. 2 Wms. Saund. 101 h, h. He 319 ; Webber v. Stitchins, 8 M. cannot defend himself under a & W. 319; Slieriooodv. Clark, void writ, Sooper v. Lane, 10 15 M. & W. 764; Reeves v. Q. B. 560. 6 H. of L. ' Slater, 7 B. & C. 486 ; Jud. 443, S. C. Act, 1875, Ord. 42) r. 11. Digitized by Microsoft® EXECUTION. 175 No oae can be sued for the exercise of his legal right to issue execution on a judgment, unless, in doing so, he act mahciouBly, and without reasonable and probable cause.' The sheriff is bound to notice all liberties.^ He is bound to know the person of every inha- bitant within his bailiwick.^ The sheriff and under-sheriff must receive all manner of writs, in any place, and at all times, within the county, when and wheresoever they shaU. be de- livered to them ;* and should indorse upon them the true date of siich delivery. The legal day is, as between subject and subject, divisible into fractions ;° but as against the crown it is not so." To perfect the execution, no writ (except an elegit) need be returned or filed.' The sheriff executes process at his peril; he is answerable civilly for what he does upon it.^ Every writ must be executed in a reasonable time." No writ, or civil process, can .be executed on a Sunday." If need be, the posse comitatus must be raised." 1 Be Medina V. Grove, 10 Q. v. Annan, 9 ib. 836. B. 152; Moret v. Zeiois, 5 D. ^ B.y. Edwards, 9Exoh. 54. & L. 372. ' See Dalt. ch. 38. 2 Ante, p. 33. » 11 H. 4, 90; 14 H. 4, 25. ^ Hereford v. H'Namara, ^ See Brown v. Jarvis, 1 M. 5 D. & R. 97; De Mesnil v. & W. 704; RandellY. WlieUe, Dakin, L. E., 3 Q.' B. 18. 10 Ad. & E. 719; Mason v. Semtle, also his goods and Faynter, 1 Q. B. 980; Clifton cliattels, Dalt. oh. 73 ; ib. App. v. Sooner, 6 Q. B. 468. ch. 3, but not his land, ib. ch. i" 29 Car. 2, o. 7, s. 6 : and 63. Bee Samuel v. Buller, 1 Exch. * Ib. ch. 20; BracTcentury y . 440. Zawrie, 3 Dowl. 180. " Ante, p. 142; 2 Wms. 5 Thomas v. Desanges, 2 B. Saund. 345 ; White v. Ohapple, 6 A. 686; GodsonY.Sanctuat-y, 4 C. B. 630; Sowden v. Stmi- 4 B. & Ad. 255 ; Chielc v. dish, 6 ib. 509. Smith, 8 Dowl. 337; Fewtress Digitized by Microsoft® 176 'WBITS OF EXECnmON'. Writs are usually executed by bailiffs acting under a warrant ; but the high sheriff or his deputy, the under-sheriff, may act in person.' The warrant must be according to the nature of the -n-rit, commanding the bailifEs to obey the man- datory part of the writ ; but if there be a recital in the writ, it need not be inserted in the warrant.^ The warrant must always contain a copy of the indorsement of the writ. Every writ of execution must bear date on the day on which it is issued.' In every case of execution the party entitled to execution may levy the poundage, fees and expenses of execution over and above the sum recovered.* Every writ of execution for the recovery of monej- must be indorsed with a direction to the sheriff or other officer or person to whom the writ is directed ta levy the money really due and payable and sought to be recovered under the judgment, stating the amount and also to levy interest thereon, if sought to be recovered, at the j-ate of 41. per cent, per annimi from the time when the judgment was entered up, provided that in cases where there is an agreement between the parties that more than 41. per cent, interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed.^ A writ of execution, if unexecuted, remains in force for one year from the date of issue, unless renewed by leave of the Court or a judge, by being marked with seal of the Court bearing the date of such renewal, or by the party issuing it 1 See Sooper \. lane, 6 H. ' Jud. Act, 1875, Ord. 42, of L. Cases, 443. r. 12. " Dalt. 117. * lb. r. 13. ^ lb. r. 14. Digitized by Microsoft® FIEEI FACIAS. 177 giving a ■written notice of renewal to the slierifE, signed by himself or his solicitor, and bearing the like seal of the court; and a writ of execution so renewed shall have effect, and be entitled to priority, according to the time of the original delivery thereof.^ The production of a writ of execution, or of the notice renewing the same, purporting to be marked with such seal, showing the same to have been re- newed, is sufficient evidence of its having been so renewed.- Section rv. PIEEI FACIAS, OE H. PA. The writ of execution which is most frequently met with in practice is the fieri facias. It is a judicial writ, and lies for any person who has recovered any debt or damages in the Queen's Courts. It is directed to the sheriff of the county in which it is to be executed, who thereupon makes out the following Warrant. W. \ J. F., Esquire, sheriflE of the oovmty aforesaid, to -to Tvit. ) and ■ my bailiffs, greeting : By virtue of a writ of our Sovereign Lady the Queen to me ■directed, I command you, and every of you, that of the goods and chattels of C. D. in my bailiwick, you or cue of you cause to be made the sum of and also interest thereon at the rate •of pounds per centum per annum from the {date of jiidg- ment) , vrhioh said sum of money and interest were lately "before her Majesty's High Court of Justice, — — Division, in a certain action wherein A. B. was plaintiff and C. D. was •defendant, by a judgment (or order) of the said court, bearing ■date the day of • ■ 187 , adjudged to be paid by the said C. D. to the said A. B., together with certain costs in the said judgment [or order) mentioned, and which costs have been taxed and allowed by one of the taxing masters of the said court, at the sum of £ . Ajid I further command you, and every of you, that of the goods and chattels in my bailiwick of the said C. D. you further cause to be made the said sum of £, , together with interest thereon at the rate of £ per centum per annum, from the [date of certificate of taxation), 1 lb. r. 16. ■^ lb. 1-. 17. A. N Digitized by Microsoft® 178 WHITS OF EXECUTiorr. so that I may have that money, with such interest as aforesaid, before her Majesty's said cotirt, immediately after the execution hereof to be paid to the said A. B. in the said writ named. And that you execute this warrant so that I may do all such things as by the statute passed in the second year of the reign of her present Majesty I am authorized and required to do in this behalf, as I am by the said writ commanded. Hereof fail not, as you will answer at your peril. Griren under the seal of my office, this day of 187 . By the same sheriff. Before you levy beware the parties are not privileged as ambassadors, or servants to ambassadors, or otherwise pro- tected. Writ indorsed as under. Levy £ and £ for costs of execution, &c., and also interest on £ at £ per centum per annum, from the day of 1 8 , until payment ; besides sheriff's poundage, officer's fees, costs of levying, and all other legal incidental ex- penses, &c. &c. What may r£^^ above warrant follows tlie most usual form of DC seized. .,..,-. tlie writ, wHcli may, however, be vaned aocordiiig to circumstances,' when the form of the warrant must be altered accordingly. The writ uses the words "goods and chattels:" the sherLffi cannot therefore seize free- hold property under it ; it is his duty to levy on the goods and' chattels of the person named in the writ (except he be a foreign minister or otherwise pro- tected). Bona et catalla ecclesiastica are excepted, being reached by a similar writ addressed to the bishop of the diocese. Neither can goods and chattels te seized, unless the person named in the writ have in them a legal and saleable interest^ in his own right. Again, of chattels, some go to the executor and some to the heir ; but, as regards liability to seizure under * a fi. fa., this distinction is too narrow. The question really depends in each case upon the nature of the interest of the execution debtor. The books point out, amongst other things that are liable to be taken * Bolton V. Bolton, 3 Ch. D. "W. 41 ; Sogers v. Kennay, 9 276. Q. B. 592. A Ust is given in 2 Legu V. Evans, 6 M. & Sewell's Sheriffs, p. 231. Digitized by Microsoft® ITEBI TACIAS. 179 in execution, the following : — moveable goods, as Moveable horses, oxen, household stuff, plate, ready money, ^ hooks, wearing apparel (but, by 8 & 9 Vict. e. 127, s. 8, actual necessaries are protected, i. e. wearing apparel of the debtor and his family, and the tools and imple- ments of his trade to the value of 51. in all), husbandry, utensils not annexed to the freehold, trade fixtures, Fixtures, such as coppers, vats and the like, even if annexed to the freehold, though not forming part of the building, and which may have been fixed by a tenant for the purposes of his trade,^ unless their removal would cause serious injury to any important part of the building, or would be inconsistent with the terms of the tenancy.' So also all other fixtures, which would be removeable by the tenant as between hi-m and his lessor,* such as hangings, looking-glasses, wainscot fixed by screws, marble chimney-pieces,^ stoves, grates and the ironwork behind them, and the removal of which would not amount to waste.^ The right to remove such fixtures continues only so long as the tenant holds possession of the premises under a right still to con- sider himself as tenant,' or probably for a reasonable time after receipt of the notice to quit in cases where the duration of the tenancy is uncertain. Similarly, on a fi. fa. against the owner of a house, such fixtures only may be seized as would go to the executor, and not to the heir. Farm buildings erected by a tenant at his own expense, with the consent of his landlord, for purposes of trade or agriculture, are in general 1 R. v. Webb, 2 Show. E. JPoletj v. Addenbroolce, 13 M. & 166. W. 174. ^ Mwes V. Mawe, 2 Smith's ' Zawton v. Lawton, 3 Atk. L. C. 182, and the cases there 15. cited. See also 14 & 15 Vict. ^ BucMand v. Butterfleld, 2 u. 25, s. 3. B. & B. 54. ' i>umerfftie y. Svmsey, 2 H. ' Weeton v. Woodcock, 7 M. & 0. 777. & W. 14. * Foole's case, 1 Salk. 368; n2 Digitized by Microsoft® 180 -WHITS OF EXECIJTIOX. removeable after a montli's notice to tlie landlord, if he then refuses to purchase them,' and may therefore Com, &c. in that case be seized. Corn in the bam, fruetus industriales, or fruits of industry, are Hable to be taken, as corn gromng, artificial grass or other pro- duce, which the tenant may, consistently with his lease, remove from the farm f as also a term of years ;' the interest of a tenant from year to year ;^ a term jure uxoris for the husband's debt ;^ a rent-charge issuing out of a chattel interest ; an annuity certain granted by the Crown to a subject ;" the inter e"st of the debtor in property held by him as a pawnee, pledgee or lessee. And by 1 & 2 Yict. c. 110, s. 12, any money, bank notes (whether of the Bank of England or of any other bank), cheques,, bills of exchange, promissory notes, bonds, specialities or other securities for money, may be seized and paid over to the creditor, or held as security, or be sued upon by the sheriff in his own name. The effect of this statute was to put notes and money, which were not seizable before, on the same footing as goods, and to subject them to all the inci- dents and liabilities of money which forms the proceeds of goods seized.' Farming The seiziire of farmina: stock taken in execution is Htock. regulated by the 56 Geo. 3, c. 60, by which. the sheriff 1 14 & 15 Vict. 0. 25, s. 3. « York v. Twine, Cro. Jac. = 56 Geo. 3, o. 50; and see 78. Wharton v. Naylor, 12 Q. B. ' See Mutton t. Toung, 4 679. See also 14 & 15 Vict. C. B. 375, 397; CoUmgridgev. c. 25, 88. 2, 3. Paxton, 11 ib. 683. Debts and ^ Fahner's case, 4 Co. 74; choses in action are deemed Taylor v. Cole, 3 T. E. 294; goods and chattek for some Moe d. Stevens v. Sonston, 3 B. purposes under the bankrupt & A. 230; Flayfair v. Mus- acts (see Ryall v. Sowley, 1 grove,-! D. & L. 78. Ves. sen. 348; Cook v. Sem- * Westmoreland v. Smith, 1 miitg, 37 L. J., C. B. 179), but 1 M. cS: Ey. 137. they are not so, in general, for ^ See Fiirr v. Xcwinan, 4 T. the purposes of execution. E. 639. Digitized by Microsoft® riERI FACIAS. 181 is prohibited from seizing on any lands let to farm any straw, chaff, colder, manure, &c. ; and wliere there is a covenant or contract in ■writing, of wMoli the sheriff has notice, for spending agricultural produce upon the farm, he is prohibited from removing the crops, &c. The tenant is required to give notice to the sheriff of such covenants or written agreements, and the sheriff is required to give notice by post to the landlord or his agent of his possession of ^lich agricultural produce ; and in case of the silence of the landlord or agent, the sheriff must delay the sale till the latest period he can do.' And where there is a covenant or written contract between landlord and tenant, the sheriff is to assign or mate an agree- ment with his vendee that he is to consume the produce according to the terms of such covenant or written agreement. If there be no such covenant or agree- ment, then the vendee is to stipulate to spend the produce of the farm according to the custom of the country, and the vendee is allowed the use of the bams, &c. on the farm' for that purpose, without the sheriff or vendee being deemed to be a trespasser,* nor are such crops remaining on the premises liable to a distress for rent.* The sheriff is to allow the landlord to bring actions in his name against the vendee for breaches of the agreement in assigning the crops, &c., the landlord indemnifying the sheriff before commencing his action.' By the 7 Ann. c. 12, s. 3, all writs against the goods Whatcannot or chattels of any ambassador or other public minister of any foreign prince or state authorized and received by her Majesty as such, or of the domestic servant of 1 Sect. 2. 4 Sect. 6. 2 Sect. 3. " Sect. 4. 3 Sect. 10. Digitized by Microsoft® 182 WRITS OF EXECUTION. any such person,' are utterly nuH and void; provided, as regards the domestic, he he not a trader within the meaning of the bankrupt acts.^ No bona aut catalla ecclesiastica, as we have said, can be seized under this writ.^ Goods of a testator or intestate, in the hands of an executor or administrator, cannot be seized in execution of a judgment against the executor or administrator in his own right.^ But where an executrix used the goods of her testator as her own, and afterwards married, and then treated them as the goods of her husband, it was decided that she had estopped herself from objecting to their being taken in execution for her husband's debts.' Property vested in a trustee, by a bona fide settlement, for the wife's sole and separate use, cannot be taken for the hus- band's debts," unless the husband has traded with it, or dealt with it in a manner inconsistent with the deed.' But money paid to her by the trustee, or property purchased by her with the money so paid, belongs to her husband, if reduced into possession by him, and in that case maybe taken for his debt;' but, as a general rule, the savings or income of her separate estate remain her separate property, and caiinot be so ' A Kst of them ia forwarded R. 618; IzodT. Lamb, 1 C. & by the Foreign Office to the J. 35; Simmons v. Edwards, Sheriffs of London and Mid- 16 M. & W. 838. dlesex, at whose office it may ' Jarman v. Woollaston, 3 be inspected. T. R. 618 ; Derby v. Smith, 8 ^ See Fisher v. JBegres, T. E,. 82. Do-wl. 588. 8 Came v. Srice, 7 M. & W. ' Dalt.219; Bao.Abr.Exe- 186; Tubman v. Sopkiiis, 5 Sc. cution ; ante, p. 178. N. R. 482; Messenger y. Clarke, * Farr v. Newman, 4 T. R. 5 Exoh. 388. The status of a 621 ; Fenwick v. Laycock, 2 Q. woman who has obtained a B. 108. decree nisi for dissolution of * Quiek V. Staines, 1 B. & P. marriage is stUl that of a mar- 293 ; Fenwick v. Laycock, 2 Q. ried woman until the decree B- 108. is made absolute. Norman v. ^ Jarman v. TFoollaston, 3 T. Villars, 25 "W. R. 780. Digitized by Microsoft® FIERI FACIAS. 183 taken.^ The tendency of the Courts has always been to extend this protection where no fraud on creditors was intended, and in many cases the husband has been treated as a trustee for his wife of property given to her during marriage, or otherwise coming to him in his marital right. And now, by the Married Women's Property Act, 1870,^ the protection is defined to extend also to all the wagesj earnings and stock-in- trade ' of any married woman, in any lawful occupation which she carries on separately from her husband with his consent, and also any chattels or other property purchased out of her earnings for her own use. It also includes a policy of insurance, if expressed upon the face of it to be for the benefit of the wife, or of the wife and children. The goods of a woman cohabiting with the defen- dant, assuming his name and passing for his wife, cannot be taken for his debt if she has done no more to estop herself from showing that they were her own.* The goods of a husband are not liable to be taken Debts of in execution for the debts of his wife contracted '^^' before marriage, except in respect of and to the . extent of the following assets : — (1) the value of the personal estate in possession of the wife, which shall have vested in the husband ; (2) the value of the choses in action of the wife which the husband shall have reduced into possession, or which with reason- able diligence he might have reduced into possession ; (3) the value of the chattels real of the wife which shall have vested in the husband and wife ; (4) the value of the rents and profits of the real estate of the ' Stmcan v. Cash'm, L. R., ■* Edwards v. Bridges, 2 10 C. P. 554. Stark. 396 ; Glasspoole-v. Young, - 33 & 34 Vict. c. 93, s. 1. 9 B. & C. 696; Eeene v. DilU, ''• Ashworth v. Oiitram, W, 4 Exoh. 388. N. 1877, p. 64. Digitized by Microsoft® 184 -WRITS OF EXECUTIOIf. wife Trhich the husband shall have received, or with reasonahle diligence might have received; (5) the value of the husband's estate or interest in any pro- perty, real or personal, which the wife in contempla- tion of her marriage with him shaU. have transferred to him or to any other person ; (6) the value of any j>roperty, real or personal, which the wife in con- templation of her marriage with the husband shall with his consent have transferred to any person with the view of defeating or delaying her existing cre- ditors.^ Under this writ the sheriff cannot seize landlord's fixtures, even though the freehold is in the debtor.^ Nor what is part of the freehold, as doors, "windows, or anything which is part of the architectural design of the house,^ nor apples upon trees, for they belong to the freehold,'' nor an estate in fee or for life,' nor a mere equitable interest,^ nor an equity of redemp- tion,' nor things in custodia legis," as by distress ; or, for instance, where the property of a joint stock com- pany is in the hands of a receiver appointed by, the Court of Chancery, the sheriff, having seized under a fi. fa., may be ordered to withdraw.' Nor can he seize before the termination of the bailment any 1 37 & 38 Vict. c. 50, s. 5. E. 861; He Bnlce of Xcurastk, 2 IFinn v. Ingilby, 5 B. & L. E., 8 Eq. 700. A. 625. See also JFarrant v. ' lb. ; Lyster v. Dolland, 1 Thompson, 5 B. & A. 826. Ves. jun. 431 ; Btirdon v. Ken- 3 Com. Dig. tit. Exec. e. 4; mdy, 1 Atk. 739. I)' JEyncoart\. Gregory, Hi. 'R., * Com. Dig. Exec. c. 3; 3 Eq. 382. Letckmere v. Tlwrowgood, 3 * Gilb. Ex. 19. Mod. 236; Lorick v. Crowder, '• 3 Co. 13; sedqu. as to an 8 B. & C. 132; Wharton v. estate pur autre vie, 29 Car. 2, Naylor, 12 Q. B. 673 ; Selcher c. 3; Comb. 291; and an out- v. Fatten, 6 C. B. 608. standing term to attend the ^ Russell v. M. A. Co., S inheritance. Doe d. Phillips \. Mac. & G. 123; but see Ed- Evans, 1 C. & M. 450. wards v. Edwards, 2 Ch. D. " S'coft V. Scholet/, 8 East, 291. 467 ; Metcalf v. Sc'holey, 2 N. Digitized by Microsoft® riEEI FACIAS. 185 goods of the debtor in tlie liands of a pawnee or lessee/ thougli he may sell them subject to the right of the bailee; nor can he seize a mere personal interest, as a right of Ken,- nor any tenement -which cannot be granted over, as the office of jfilacer, or the like f nor goods in the hands of another, as trustee for the debtor,* unless, perhaps, where they have been for a long time in his possession under circum- stances inconsistent with the trust ; nor money due and owing to the debtor, as a debt from another person and in the hands of the latter f nor money seized under a fi. fa. and in the sheriff's hands," nor the goods of a person not named in the writ.'' From this last proposition it follows, that if A. BiUsofsaie. transfers his property to B., remaining in possession of it himself, but such continued possession not being fraudulent, being, for example, in accordance with the terms of a stipulation in a bona fide deed of transfer, it cannot be taken in an execution against A.® But if the transfer be fraudulent (which is, in all cases, a qiiestion for the jury and not for the Court), it is void as against creditors ; and the pro- perty remains, as regards them, A.'s property, and liable to be seized accordingly. If the property in a personal chattel" capable of complete transfer by 1 Hosiers v. Kennay, 9 Q. B. v. Brine, 3 B. & B. 294. 952. * lb. ; Masters v. Stanley, 8 - Legg v. :Emns, 6 M. & W. Dowl. 169. 36. ' Glasspoole T. Young, 9 B. ^ Dyer, 7 b. & G. 696 ; Jarmain v. Hooper, * France r. Campiell, 9 1 D. & L. 769. See SeweU's Dowl. P. C. 916. SheiiEEs, p. 228. ^ Sarrison v. Faynter, 6 M. " See 1 Smith's L. C. 1. & W. 387; Wood V. Wood, i " Defined in 17 & 18 Vict. Q. B. 400. Nor will the c. 36, o. 7. The definition of Court order the sheriff tore- " personal chattels " includes taiji a sum in his hands to fixtures, but this must depend satisfy the debt ; Willows v. upon whether the mortgagee Ball, 2 N". R. 376; Knight r. is empowered to separate them Criddle, 9 East, 48; Fadjield from the building. Digitized by Microsoft® 186 "WEITS OP EXECUTION. Conditions. Apparent delivery,' is transferred by 1)111 of sale, or any other form of equitable security wHch gives a right to take possession of such chattel through the agency of the Court,^ and the transferor remains in posses- sion or apparent possession of it, such transfer is, unless filed with the proper officer in the Queen's Bench Division within twenty-one days, absolutely null and void as against all sherifi's officers and other persons seizing in the execution of any process of the Coujct.^ And if the transfer is subject to any defeasance, declaration of trust or condition, that is to say, anything affecting the donee prejudicially,* such condition must be filed as part of the biU of sale.* Should the seizure take place within the twenty-one days, the bill of sale has priority without being registered, and the title of the donee is not prejudiced if acquired bona fide and for valuable consideration before the actual seizure, and without notice that any writ against the goods was iii the hands of the sheriff for execution," or that any act of bankruptcy has been committed by the debtor. Although the object of this provision is to ensure notoriety of the transfer, yet it has been held that the fact of the execution creditor having knowledge of the charge on the debtor's goods does not prevent his availing himself of the objection that it has not been registered.' A question frequently arises as to whether the "apparent possession" of the debtor has ceased, so as to defeat the execution. A mere delivery of formal possession to any other person is not enough ; • & parte Barclay, L. E., 9 Ch. 576. 2 Edwards v. Edwards, 2 Ch. D. 291. 3 17 & 18 Vict. c. 36, s. 1. * Ex parte Collins, L. E., 10 Ch. 372. » 17 & 18 Viot. u. 36, a. 2. « 19 & 20 Viot. e. 97, s. 1. ' Edwards v. Edwards, 2 Ch. D. 291. Digitized by Microsoft® PIERI FACIAS. 1S7 as wliere a troter is simply put in to prevent the removal of furniture, but allows everything to be used by the debtor as before. Something must be done which takes the goods plainly out of the ap- parent possession of the debtor in the eyes of every- body who sees them.^ Prom the rule which forbids the officer to take the Bankmptcy. property of any one but of the person named in the writ, it also follows that property vested in con- sequence of bankruptcy in the trustees of a debtor cannot be seized by virtue of a writ against him. The title of the trustees relates back in general to the act of bankruptcy, after the date of which, there- fore, any seizure would generally be void as against them ; but by the Bankruptcy Act, 1869,^ in order to protect the sheriff and the execution creditor against the operation of an act of bankruptcy of which they were ig-norant, it is enacted that any execution against the goods of any bankrupt is valid if exe- cuted in good faith by seizure and sale before the date of the order of adjudication, and if the person on whose account such execution was issued had not at the time of the same being executed by seizure and sale notice of any act of bankruptcy committed by the bankrupt prior to the seizure,' and available against him for adjudication. The creditor is therefore entitled to so much and Execution ^ _ completed no more of the execution as he may have completed by sale. by sale before the adjudication, even though he is prevented from selling by an interpleader order.* An absolute bUl of sale by the sheriff is a sufficient 1 I!xparteZewis,'L.It..,6Ch. ' Ex parte Schulte, L. R., 9 626 ; ExpaHeJwy, ib. 9 Ch. 697. Cli. 409. * 32 & 33 Viot. c. 71, s. 95, * O'Brien v. Brodie, L. R., subs. 3. 1 Ex. 302. Digitized by Microsoft® 188 -WRITS 01? EXECniON. completion/ or any otter contract of sale where only formal acts remain necessarj'- to carry it out. Notice of Mt Tlie notice of an act of bankruptcy to invalidate of bank- • , . i n-i mptcy. the execution must be given to the creditor, or to one of them if more than one,'* or to his solicitor, or, semble, to a clerk who has so far the .management of the business as to have the power of acting on such communication, in the solicitor's absence.' No- tice to the sheriff or to the bailiff is insutficient.- Notice of the debtor's intention to commit an act of bankruptcy is also insufficient,* nor is it enough to give such notice as merely would put the creditor to further inquiry ;* it must be that he has actually committed an act of banlsruptcy, though it may be general, to that effect. Mercantile Again, on the other hand, the Mercantile Law ment Act. Amendment Act, 1856," enacts that "no writ of fi. fa. or other writ of execution, and no writ of attachment against the goods of a debtor, shall prejudice the title to such goods acquired by any person bona fide and for a valuable consideration before the actual seizure or attachment thereof by virtue of such writ ; provided such person had not, at the time when he acquired such title, notice ' that such writ or any other writ, by virtue of which the goods of such owner might be seized or attached, had been de- livered to and remained unexecuted in the hands of the sheriff, under-sheriff, or coroner." Priority of It often happens that two or more writs against the same person are in the possession of the sheriff at ' Christie If. WMnnington, S * ExpartcAmold,iCh.'D.'lO. Ex. 287. <> m-ans t. Hallam, L. R., 6 •i Ramsay v. Eaton, 10 M. & Q. B. 713. W. 27. » 19 & 20 Vict. c. 97, s. 1. » Pj/.c V. Stephens, 12 Q. B. ' HobsonT. Thclhison, L. E., 465; I'ennell v. StepJiens, 7 C. 2 Q. B. 642; Gladstonev. Tad- B. 998. wiek, L. E., 6 Ex. at p. 211. Digitized by Microsoft® ■writs. FIERI FACIAS. 189 the time hie mates the seizure. When this happens he must execute them all,' and the maxim — qui prior est tempore potior est jure — must be his guide. In other words, he is to execute them and apply the proceeds according to their priority; which, as to writs of fi. fa., is according to the time of their de- livery to him. It is not material whether he seize the goods under the first or under the last writ ; for when seized, they are, in contemplation of law, in his custody under all the writs he then has; and when he sells, he sells under aU. But, as we have said, he must apply the proceeds according to this priority. If they be more than sufficient to satisfy the first, he must apply the surplus to the second, then to the third, and so on.^ On the other hand, if the first be avoided by the bankrupt laws,' or be void on the ground of fraud* or the like, the proceeds must be applied to the second, and so forth. If the whole proceeds are exhausted by a landlord's claim for rent and a prior writ together, a return of nulla bona is the proper return to make to a second writ." Again, a second or subsequent writ must have priority, if the execution of a former be suspended at the time the other comes." In cases of this kind, one actual entry or seizure is sufficient to satisfy the exigencies of all delivered to him ; but there must be an actual entry or seizure of the property under ' DennisT. Whetham, L. R., Murton, 3 Ex. 160; Shattoc/cv. 9 Q. B. 345. Tte same bafliffs Garden, 6 ib. 723; JRemmett should execute tbem all. v. Lawrence, 15 Q. B. 1004; * Drewe t. Lamson, 11 A. & Dennis v. Whetham, L. E., 9 E. 529: Aldredv. Constabk, Q. B. 345. Q. B. 370. ^ Wintk t. Freeman, 11 A. ' Aldred v. ConstaJ>le, 6 Q. & E. 539 ; Ileenan v. Evans, i B. 370 ; Graham v. Witherbi/, So. N. K. 2. 7 ib. 491. " Simty. Sooper, 1 D. & L. * Imray v. Magnay, 11 M. 628; Howard v. Cawty, 2 ib. & W. 267; Christopherson v. 115. Digitized by Microsoft® 190 "WniTS OF EXECUTION. one before there can arise a constructive one under another of the same property. Thus, a fi. fa. was issued against one of two partners, and under it partnership property was seized ; afterwards another was issued against both partners, and deliyered to the same sheriff, but no actual entry or seizure took place under it before a fiat in bankruptcy issued against them, inasmuch as under the first the interest of one alone was affected, the execution on the joint judgment was not served and levied by seizure be- fore the fiat, and the assignees prevailed over the execution creditor.' ivauduient With regard to fraudulent executions. 3f the right judgments. , , , of no creditor intervenes, the sheriff must sell under a writ on a fraudulent judgment; for such judgment is good inter so, and void only as against creditors, and, by implication, void as against the sheriff, when acting in right of a creditor.^ When the judgment is void as against creditors he must execute any subsequent writ ; and in any action brought, the fraud of the prior judgment may be proved.' The sheriff is responsible for neglecting to seize and sell, if he have notice of the fraud, or if he could discover it by reasonable inquiry.* He must execute the writ within a reasonable time after its delivery to him. It may be executed on any day except Sunday, even on the return day, if it be made returnable on a day certain. Writs are, however, nearly always made returnable "immediately after execution," that is to say, when the whole amoimt indorsed has been levied. ' Johnson t. Evans, 1 D. & * Imray v. Magnay, 11 M. L. 935 ; and see Semmett v. & W. 275 ; Christopherson v. Zaiorence, 15 Q. B. 1004. JBurtoti, 3 Exoh. 162; Dennis * Imray v. Magnay, supril. v. Whetham, L. B., 9 Q. B. 3 lb. 345. Digitized by Microsoft® EIEEI PACIAS. 191 Every man's house is Ms castle.' Thus, an officer Breakmi cannot break open an outer door or window to execute process in a civil suit. But if he find the outer, door open and enter; or, if the outer door be opened to him from within and he enter, he may break open inner doors, if necessary,^ and he may, if forcibly turned out of the house, break open an outer door to get in again. It is the dwelling-house alone that is privi- leged : the outer door of a warehouse or outhouse made for the conservation of goods only, and not connected with the dwelling-house, may be broken open.^ Chambers in the Inns of Court and colleges are dwelling-houses within the meaning of the rule.* The sheriff's justification for entering the defen- dant's dwelling-house does not depend upon the result of finding or of not finding his goods;* but it is other- wise of a stranger's house, for he cannot justify the breaking open the outer or inner door of a stranger's house, unless it turn out that the defendant's goods are actually there.* Neither can he justify entering a stranger's house, if none of the defendant's goods be there, although the door be open, and although the sheriff inay have reasonable cause to suspect that they are there,' and in no case can he justify entering a royal residence.^ Under a fi. fa. against the goods of an intestate in the hands of an administratrix, he may justify entering the house of her husband, though 1 Semmjne'a case, 1 Smith's ion, 3 B. & P. 223; SuUhison L. C. 105. T. Birch, i Taunt. 627 ; Coolm 2 Fenton v. Urowne, 1 Sid. v. Birt, 5 ib. 765 ; Johnson v. 181; dist. Brown v. Glenn, 16 Zeigh, 6 ib. 245. Q. B. 256: and see Syan v. ' Morrish-v. Murrey, 13 M. Shilcaclc, 7 Exoh. 74; Bobson & W. 53, and cases ia tbe last T. Th-elluson, L. E., 2 Q. B. note. 642. ° As to what constitutes a * See Jeev. Gansel, Cowp. 1. royal residence, see Att.-Gen. * See MorrishY. Mm-rey, 13 v. Dakin, L. E., 4 H. L. 338. M. & W. 57; Ratcliffe v. Biw- Digitized by Microsoft® dooi-s. 192 -WEITS OF EXECTTIOX. no goods be found there.' A bailiff may break open the door of a lodger, having first gained peaceable entrance at the outer door of the house.' If the officer be in, and cannot remove the goods without opening the outer door, and neither the defendant nor any one on Ms behalf be present, whom the officer could ask to open it, he may break it open.^ A distinction, in this respect, has long prevailed between process at the suit of the crown and that of a subject. In aH cases, where the crown is a party, the sheriff (if the doors be not open) may break into any house to do execution, if he cannot enter with- out. But, before he breaks in, he ought to signify the cause of his coming, and to make request to open the door.* The breaking open doors, &c., under cir- cumstances not justifiable, does not, it seems, vitiate the execution, but merely renders the sheriff liable to an action.' It is said that the officer may not open a latch. But this seems not to be so. He may open the door as others do who are in. the habit of going in." Seizure, how The officer, on entering and seizing, should take care to let it be known what goods he intends to seize, but, subject to this, he may seize part in the name of the whole,' raising, if need be, the posse comitatus. He should declare the full contents of his warrant, so that the debtor may pay the amount ; and a special bailiff may be called on by the debtor 1 Cooke v. Bivt, 5 Taunt. Bac. Abr. Exec. (N) ; Duke of 765. Brunswick v. iSloman, 8 C. B. ^ Xeey. Gansel, Cowp. 1. 317; Ryan v. Shilcock, 7 Ex. " "■ ih V. Griffith, 7 A. & 74; Pereival v. Stamp, 9 ib. E. 827. 167. * Semayne's case, 3rd Res.; " See Syan v. Shilcock, 7 Burdett \. Abbot, 14 East, 157; Ex. 77. Hawk. P. C. b. 2, ch. 14, s. 1. ' Gladstone v. Paduick, L. ' Semayne's case, supra ; 2 E., 6 Ex. 203. Digitized by Microsoft® riEEI TACIAS. 193 to produce his -tt^arrant to prove Ms authority. A mere entry, -without more, is not a seizure.^ Having seized he makes an inventory, leaves a m.an in pos- session, and then, within a reasonable time, either removes the goods off the' premises to a place of safety until he can sell them, or he sells them on the premises, with the consent of the debtor, or of the person on whose premises the goods are. The effect Effect ot ■*■ i o ^ scizuie. of the seizure is that the sheriff acquires a quahfied property in the goods seized, like that of a factor who is under advances, and from whom the goods m.ay fee claimed hack on payment of those advances, and the creditor obtains a security upon them,^ within the meaning of the Bankruptcy Act, provided that no act of bankruptcy had been committed before seizrure, and provided that the execution is not against a trader for a sum exceeding 501., a case which will be noticed hereafter.' Not unf requently there is a conflict between exe- Conflict of , . . . „ „ , , . , I executions. . cutions issuing irom one oi the superior courts and from a county court. When that is so the priority is determined by priority in time of delivering the writ to the sheriff or the application to the regis- trar for the warrant.* A renewed writ is entitled to priority, according to the time of the original de- livery.^ If another officer is already in possession under a prior writ, it is a sufficient seizure if the sheriff gives him notice of the subsequent one, and leaves a copy of it with him.* Possession must not be abandoned. Where the Abandoning ■ 1 Nash Y. Dickenson, L. R., * 19.& 20 Vict. o. 108, s. 47; 2 C. P. 252. 30 & 31 Vict. o. 142, s. 30. 2 Slater v. FinOer, L. E., 6 ^ ju^_ j^^^^ 1375^ Ord. 42, Ex. 228 ; Ex parte Eoeke, L. E., i-. 16. 6 Cfh. 795; 'JEx parte Jameson, * Ex parte Villars, L. R., 9 3 Oh. D. 488; ante, p. 168. Ch. 432. 3 See p. 202. -^ A. O Digitized by Microsoft® 194 ■WRITS OJ EXECrTION. Qiiantity of goods to be Sale. Venditioiii exponas. Delay. officer quitted the premises after the- seizure, leaving no one in charge of the goods, but taking "with him the key of a drawer, wherein he had locked his warrant, it was held an abandonment.^ But if he continues in possession for more than a reasonable time he is a trespasser.'' His duty is to seize such a quantity of goods only as are reasonably sufficient to satisfy the amount endorsed on the writ, and to stop the sale of the goods as soon as a sufficient sum. has been raised to cover that amount, together vrith any lawful claim for rent, and without making allowance for the possi- bility of fiirther costs being incurred.' It is the duty of the sheriff to seU also within a reasonable time, which he may do even though out of office.* If, however, the only price obtainable is much below the real value, he may return that the goods remain in his hands for want of buyers, and wait until the creditor sues out a venditioni exponas, under which it is the sheriff's duty to sell, at all events, for the best price that can be got.^ If he should go out of office before the venditioni exponas issues, the creditor may then sue out a distringas nuper vicecomitem, by which the new sheriff is commanded to distrain, the old sheriff to sell the goods and have the money in court. If nothing has been levied, and nulla bona returned, an alias fi. fa., or a pltiries fi. fa. may be sued out. If the sheriff delay the sale for an unreasonable time he will be liable in damages to any party in- T. Anmdale, 1 M. & S. 710. * Playfair v. Musgrove, 14 M. &W. 239; AshY.Daunnii, 8 Exch. 239. ^ Aldred v. ConstalU, 6 Q. B. 381 ; Gaidcr v. Chaplin, 2 Exch. 507. * Ayre v. Aden, Cro. Jao. 73; Doew. Donstm, 1 B. & A. 230. ° KeightUyY. .BJrcA, SCamp, 524. Digitized by Microsoft® PIEEI PACIAS. 195 jured ; but, for instance, if he have notice of an act of 'bankruptcy committed by the debtor, he may take a reasonable time to inquire whether the statement is true."- If an inadequate price be offered, he should not sell, but should return that they remain in his hands for want of buyers;^ for if, in consequence of his negligence, the goods sell at an undervalue, he will be liable in damages to both debtor and creditor for the injury to their respective interests.' There is Saieto not now as formerly any obligation on the sheriff to raeiS" sell by auction, nor is there anything to prevent his selling to the judgment creditor or delivering the goods to biTin at a bona fide valuation. There is no warranty of title at a sheriff's sale.* The effect of the sale is to take the actual property Effect of in the goods out of the debtor;* and if the debtor ^ ^' is not adjudicated bankrupt before it takes place, it completes the title of the creditor to the proceeds, if he had no notice of any act of bankruptcy committed by the debtor prior to the seizure and available against him for adjudication ; provided that the exe- cution is not against a trader for a sum exceeding 60/. ;* a case- which will be noticed hereafter.' As to partnership property : " the sheriff seizes the Partnership whole, or a part in the name of the whole, and then sells the debtor's undivided interest therein. The vendee is tenant in common with the other partner,' ^ AyshforA t. Murray, 23 Kearney t. Rycm, Ir. E., 10 L. T., N. S. 470; KeUey v. C. L. 500. Milder, 15 Sol. Jour. 117. * Giles v. Grover, 9 Bing. ' Keightley t. Birch, 3 Camp. 128. 521. 6 32 & 33 Vict. o. 71, ss. 87, 3 FMllips T. Bacon, 9 East, 95, subs. 3. 298; Mullet v. Challia, 16 Q. ' Seep. 202. B. 240. .e Jud. Act, 1875, Ord. 42, ■ * Chapman v. Speller, 14 Q. r. 8; ante, p. 172. B. 622. See also Morley \. ' Johnson v. JSvans, 7 Sc. N. Attenhorough, 3 Ex. 506; Sim C. 1044; Mayhew v. Merrick, V. Marryatt, 17 Q. B. 291 ; 7 C. B. 250. 02 Digitized by Microsoft® property. 196 WEITS OF EXEcrTiosr. and the property of tlie other moiety is not affected by the judgment or execution, the seizure of the whole of it arising from the necessity of the case.^ Joint stock. The statutes incorporating joint stock and other public bodies do, in general, point out the mode of obtaining the fruits of a judgment recovered against their secretary or other nominal party to the record. When that is so, the statute must be strictly followed. Under some the proceeding is by scire facias, under pthers by distress. Some make the reserved fund liable, others make no provision at aU, but rest by saying that the nominal party sued shall not be per- sonally Hable. In the latter, cases, the fruits of the judgment are obtained by mandamus or proceedings in equity.^ By the Companies Act, 1862,' it is enacted that " where any company is being wound up by the Court, or subject to the supervision of the Court, any attachment, sequestration, distress or execution put in force against the estate or effects of the said company after the commencement of the said winding-up shall be void to all intents." That is to say, an execution agaiast the company is void so far as regards the goods of the company, unless the sheriff actually levies and enters into possession of their goods before a petition for winding-up the company ha,s been pre- sented (provided the order be ultimately made) .* This section is, however, subject to an exception under sect. 87 of the Act, by which the Court has power to Companies Act. 1 Johnson v. Evans, 7 So. N. C. 1044 ; Mayliew t. Merrick, 7 C. B. 280. ^ WormwcU v. Hailstone, 6 Bing. 668; Bartlett v. Pent- land, 1 B. & Ad. 704; Corpe V. Glyn, 3 ib. 802; S. v. St. K.Dk. Co., 4 ib. 363; Sar- rison T. Timmins, 4 M. & W. 518. 3 25 & 26 Vict. 0. 89, s. 163. * Ik re London and Bet-on mscuit Co., L. K., 12 Eq. 190. Digitized by Microsoft® riEEi rAciAs. 137 ■grant leave to proceed with an execution/ and possibly even to issue one after a -winding-up order has been made;^ and, under sect. 85, the Court has power to restrain the proceedings at any time after the presen- tation of a petition for winding up, and before the order has been made.^ This power would not be exercised, except iinder special circumstances, if the creditor has obtained judgment and issued execution bona fide, and the sheriff is in possession before the presentation of the petition.* How is a leasehold interest to be seized ? It has Leaae for been said that the sheriff cannot enter to do this; but it would seem that although he need not do so, yet he has a right to enter for the purpose of executing the writ, but not after seizure and sale for the purpose of giving to the vendee possession of the term ; but, remembering that the general property in the goods seized remains, even after seizure, in the debtor, the sheriff should not stay beyond a reasonable time.'* By the sale the vendee acquires a right of entry and a right of possession, which he may, if necessary, enforce by ejectment.^ Again, the sheriff does not give the purchaser a legal title by merely putting him into possession. He must execute an assignment in conformity with the provisions of the Statute of Frauds, and the 8 & 9 Vict. c. 106;^ until this is done, the term remains in the original lessee. I An assignment is also necessary in the case of ships,, ships. which the sheriff may seize if they are within the body of his county. He need not go on board ; but he should procure the certificate of registry, and cause ' ^ Sx parte North, Staffordshire case, 33 L. J., Ch. 245. Htj. Co., L. E., 19 Eq. 60. » i-iayfair y. Musgrove, 14 * Jn re Universal Bisinfeotor M.. & W. 239. Co., L. E., 20 Eq. 162. « Doe d. Sughes v. Jones, 9, 3. See also s. 201. M. & W. 372; Plagfair v. * Great Ship Co., FarryU Miisgrove, 14 ib. 239. Digitized by Microsoft® 198 •WBITS OF EXECUTION. Judgment reversed. himself to he re^stered under tlie Merchant Shipping Act, as owner qi the debtor's shares, so as to enable himself to execute a bill of sale to the purchaser under ihe execution.^ If the sheriff, under a fi. fa., sell goods, and the judgment be reversed, the money and not the thing in specie, is to be restored. So if a term be sold, the term shall not be restored, only the money.* stay of pro- An appeal does not now operate as a stay of pro- ceedings, except so far as the Court or a judge may order.' The sJierLff is a trespasser if he proceeds with the sale after knowledge that such an order has been made, and is guilty of a contempt of Court, for which he is liable to be committed to prison. He ought, if possible, to postpone the sale if he knows that an injunction has been applied for.* And where by an interpleader order the sheriff is ordered to withdraw on the claimant giving security to the satisfaction of the master, he is bound to withdraw on receiving notice that such security has been given, whether the security is valid or not.* If, however, the sale has been advertized, the Court does not usually restraia the sheriff from proceeding with it, unless it appears that the debtor's estate would be prejudiced by the sale. If the sheriff be directed by the plaintiff or his solicitor* not to execute the writ or suspend its exe- cution, he is bound to obey, for so far he is the plaintiff's agent. Directions to his bailiff do not necessarily amount to directions to him.' Direction not to execute. ' Barley t. Sarley, 11 Ir. Ch. E. 451. ^ Manning's case, 8 Co. 94 b ; JSbe's ease, 5 Co. 90 b ; 2 Wms. Saimd. 69; Doey. Thorn, 1 M. & S. 425. ^ Jud. Act, 1875, Ord. 58, r. 16. * He Bryant, 4 Cb. D. 98. 5 Darby \. Waterlow.'L.'R., 3 C. P. 453. * i;mv.^Mo«,4Exch.588. ' See Barker v. St. Quintin, 1 D. & L. 542; Moward v. Cauty, 2 ib. 115; Walker v. Sunter, 2 C. B. 324. Digitized by Microsoft® FIEEI PACIAS. 199 It seems once to have been thouglit, that if the lactuestas' sheriff had any doubt whether the goods were the defendant's, he might summon a jury de bene esse, and that the inquisition would, in trespass, be admis- sible evidence in mitigation of damages. But the better opinion now inclines the other way. If the ques- iion were whether the sheriff had acted maliciously or not, it might, perhaps, be admissible on such an issue.' In every case of execution the party entitled to Amoimtto execution may levy the poundage, fees and expenses -of execution over and above the sum recovered,^ Suppose, therefore, the writ indorsed, "levy 100?., besides poundage, fees and aU other legal incidental ■expenses," the amount for which the levy should be laade is as follows : — £ s. cl. Principal indorsed 100 Interest,^ say 2 6 Costs of execution, say 1 5 Warrant, say 2 6 Poundage 5 6 To baiUff for executing warrant .110 Por man in possession three days (not boarded)* 15 Sale by auction, five per cent, on, say 120? 6 Amount to be levied. . . . £114 6 6 Poundage is given by the 28 & 29 Ehz. c. 4, as a Poundage, recompense for the serving and executing of any 1 See Glossop v. Fole, 3 M. ment, 4 per cent, per annum & S. 177. from date of judgment; Jud. 2 Jud. Act, Ord. 42, r. 13. Act, 1875, Ord. 42, r. 14. See Sowes v. Young, 1 Ex. D. * Wien absolutely neces- 146. sary ; Mx parte Sims, 4 Ch. D. 3 In the absence of agree- 521; Sib. 375, Digitized by Microsoft® 200 TraiTS OF EXECUTION. extent or execution. The amount is one sHUing in the pound for the first lOOZ., and sixpence in the .pound for every pound above lOOZ. levied or extended ■and delivered in execution. The amounts of the sheriff's other costs are given in the Table of Fees. No matter what extra trouble or expense the sheriff may have incurred (whether caused by the debtor's own wrongful act, or to prevent a rescue by removal of the goods for sale, or on account of an adverse claim, or the like) the rule is inflexible^ that the poundage he receives is to be deemed a sufB.cient recompense. He is not, as a general rule, entitled to poundage until the writ is executed, and money " delivered in execution ;" and inasmuch as the writ commands him that " of the goods and chattels " of the debtor he " cause to be made " the amount of the debt, it has been held that he is entitled to poundage only in respect of the amount realized by actual sale of goods seized;^ but in a more recent case the Court took a different view, and decided that where the Creditor has had all the benefit of the sheriff's services, and by means of them has obtained pay- ment of his debt, poundage is due, in whatever manner the money may have been procured; and that whether a mere request on the part of the officer bearing the warrant may have proved sufficient, or whether it may have been necessary to proceed to a seizure or sale, the execution is equally completed.'' . The rule seems to be that the sheriff is entitled to - 1 Slater v. Barnes, 7 M. & D. 300 ; and see msh v. Dic- W. 413; Dames v. ^dmmids, ienson, L. R., 2 C. P. 252, 1 D. & L. 396 ; Phillips v. where seizure alone seema to Ca/nterhimj, 11 M. & W. 621 ; tave been thought sufficient. Baylcy v. Potts, 8 A. & E. 272. S Bissicks v. Bath Colliery ^ Anon., LofEts. 433; Miles Co., 36 L. T. 800; and see ■T. Hams, 31 L. J., C. P. AUhin \. Wells, 5 T. E. 470. 361 ; Boev. Smnmond, 2 C. P. Digitized by Microsoft® PIEEI FACIAS. 20J poundage on all the amount obtained under the com- pulsion of the process.' Therefore, if on interpleader, or in consequence of the bankruptcy of the defendant, it appears that the execution creditor is not entitled, no poundage would be due." But where, before com- pletion of the execution, the parties compromised, the sheriff has been held entitled to poundage.^ Similarly, if after the levy the proceedings are set aside for irregularity, it seems that, although nothing is "delivered in execution," this does not affect the sheriff's right against the creditor to recover his poundage on the amount realized, or on the value of the goods seized under the -writ. This has been held in the case vrhere a sale has taken place,* and it is submitted that the rule would now be the same where the proceedings are set aside after seizure and before sale"* owing to the fault of the execution creditor; for he ought not to be allowed to take advantage of his own wrong after the sheriff, having been set in motion by him, has incurred all the responsibility of the seizure, and has done all that he is bound to do under the writ. If the sale takes ' place, poundage may be calculated on the total amount realized, inclusive of any sum that may have to be paid to the landlord for rent;* or, if no sale takes place, thea on the total value of the goods seized, .and for which the sheriff is responsible. This can in no case exceed the amount endorsed on the writ.' ' S. V. BoHnson, 2 0. M. & 111; jRaiostome T. Wilkinson, 11.336. 4M. &S. 250. ^ £nm T. Hutchinson, 2D. ^ But see Miles v. Sarris, & L. 45. 31 L. J., C. P. 361, where the ^ Alchin Y. Wells, 5 T. E. contrary was held, on the i70; ani. Bee Graham v. Grill, ground that poimdage was 2 M. & S. 294; Chapman tt. never due until sale. ■ Bowlbtj, 8 M. &W. 250; but ^' Gore v. Goston, 1 Stra. see Colls v. Coates, 11 Ad. &E. 643; Dailies v. Edmonds, 1 D. 826. & li. 396, * Bitllen V. Ansley, 6 Esp. ' Ante, p. 194. Digitized by Microsoft® 202 -WEITS OF EXECtmON. The sheriff is entitled to deduct his fees from the amount of the levy, although there he no direction to that effect upon the -writ,' but he is not entitled to ■enforce payment of them against the execution debtor; 60 that if after a seizure the execution creditor be- comes, by reason of liquidation, composition or other- ■wise, disentitled to recover the amount of the judgment debt, the sheriff should not (imless required by the creditor to do so) proceed to a sale to realize the amount of his fees. When ftie right to levy the debt is barred, the poundage andfees cease to be leviable also.* Xandiord's jf t^q receive notice from the landlord of rent in xeut, arrear, he must levy it also, as follows : — Before the goods are taken in execution, the landlord of the execution debtor has, ujider the 8 Anne, c. 14, a right to be paid by the execution creditor any arrears of rent that may be due to him from the debtor, such claim beiug limited to the amount of one year's rent, or to four weeks' rent if the tenancy be weekly, and in the case of any tenement let for any other term less than a year, it is limited to the arrears accruing in four such terms .^ And the sheriff or other officer is empowered to levy and pay to the execution creditor as well the money so paid for rent as the execution money. The usual practice is for the landlord to give notice to the sheriff and to receive th£ rent from Taxes. him. The sheriff must also, before sale or removal, pay any taxes due to the Crown ia respect of the premises on which the goods are seized, to the extent of one year's arrears.* Sie to^S! "Where crops are seized and sold in execution agaiost teess after a tenant, so long as they remain on the farm or lands ' Curtis V. Mayne, 2 Dowl. D. 299. N. C. 37. ' 7 .5c 8 Vict. c. 96, 8. 67. 2 Snmry v. Abdy, 1 Ex. * 43 Geo. 3, o. 99, s. 37. Digitized by Microsoft® TIEEI FACIAS. 203 they are (in default of sufficient distress of the goods and chattels of the tenant) liable to the rent which may accrue and become due to the landlord after any such seizure and sale, and to the remedies by distress for recovery of such rent, and that notwithstanding any bargain and sale or assignment which may have been executed by the sheriff. If the seizure and sale have taken place under an Exeoution execution against a trader^ for a sum exceeding 501. tradet for STUD, 6XCB6cL~ (inclusive of the sheriff's costs up to the date of sale)^ ingsoi. this constitutes in itself an act of bankruptcy on the part of the .debtor;^ but this does not interfere with the sheriff's duty to continue all necessary sales until he has realized enough to satisfy the execution.* But he must retain the proceeds of such sale in his hands for a period of fourteen days, and if notice is served upon him within that period of a bankruptcy petition, or of a petition for liquidation by arrangement or ^ Traders are defined to be , gaining;, exoliange, bartering, altmi makers, apothecaries, commission, consignment, or auctioneers, bankers,- bleach-- otherwise, in gross or by re- ers, brokers, bricimakers, tail, and persons who, either builders, calenderers, carpen- for themselves or as agents or ters, carriers, cattle or sheep factors for others, seek their salesmen, coach proprietors, liVing by buying and selling cowkeepers, dyers, fullers, or buying and letting for hire keepersof inns, taverns, hotels, goods or commodities, or by or coffee houses, limebumers, the workmanship or the oon- liyery stable keepers, market version of goods or commodi- gardeners, millers, packers, ties; but a farmer, grazier, printers, sharebrokers, ship- common labourer, or work- owners, shipwrights, stock- man for hire is not deemed a brokers, stockjobbers, victual- trader, nor is a member of lers, warehousemen, wharf- any partnership, association, ingers, persons using the trade or company which cannot be or profession of a soiivener, adjudged bankrupt, receiving other men's moneys ^ Howes v. Young, 1 Ex. D. or estates into their trust or 146 ; JSx parte Sims, 4 Ch. D. custody, personsinsuring ships 621, 5 ib. 375. or their freight or other mat- • ^ 32 & 33 Vict. c. 71, s. 6, ters against perils of the sea, subs. 5.' persons using the trade of ■ *■ Sx parte Villars,lj.'^., 9 merchandise by way of bar- Ch. 432. Digitized by Microsoft® 204 WEITS 03? EXECrXION. composition' having been presented against or by sueli trader lie must hold the proceeds, after deducting expenses, on trust to.pay the same to the trustee ; but if no such notice is served upon him, or if the petition proves abortive, he may pay over to the execution creditor the amount of his debt;'' and if any surplus remain he must return it to the debtor on demand ; but he is not bound to search for him.' The sheriff is in these cases entitled to notice in such a form as to give hiTn reasonable information concerning the debtor from which he may infer that he is a trader, and by which he may sufGiciently identify him.* The creditor may, if he choose, abandon part of his claim so as to bring the total below 50Z., and so obtain immediate payment.^ Payi^ntto A. payment by the debtor to the sheriff, in order to prevent the execution being completed, does not, if consented to by the judgment creditor, constitute such a sale, and the money may therefore be handed over at once." Such a payment to the sheriff or his bailiff is a good payment,' and the defendant is thereby dis- charged from the judgment and all further execution, although the officer do not satisfy the execution creditor.' If the defendant pay or tender the debt before execution, an execution afterwards would be a trespass,® and similarly with regard to a sale after notice of payment to the creditor." ' Hxparte Duiffnan,'L.'R., 6 " JSx parte Brooke, L. E., Ch. 605. 9 Ch. 301 ; Stoeh v. Holland, 2 32 & 33 Vict. 0. 71, s. 87. L. E,., 9 Ex. 147. ' Wooddye t. Coles, 3 Salk. ' Woods v. Finnis, 7 Exoh. 159. 370; Gregory y. Shwman, 1 E. ^ Ex parte Spootier, L. R., & B. 368; 2 Wms. Saimd. 10 Ch. 168. 47 a, n. (1). ^ Ex parte Hey a, W. N. ^ Gregorys. Shwman, sacpA. 1877, p. 189. 9 Sneary v. Abdy, 1 Ex. D. 299. Digitized by Microsoft® FIEBI FACIAS. 205 Eettjens.^ Nulla hona? The within-najaed CD. hath' no goods or chattels in my bailiwick whereof I can cause to be made the sum. within mentioned or any part thereof. The answer of , sheriff. Nulla bona and clericus. The within-named C. D. hath no goods or chattels nor any lay fee in my bailiwick whereof I can cause to be made the sum withiu mentioned, or any part thereof. And I do further certify and return that the said G. T. is a beneficed clerk that is to say rector of the rectory [or ' ' vicar of the vicarage "] and parish chxirch of M. in the county of "W. and diocese of C* The answer of , sheriff. Nulla bona testatoris. The within-named C. D. has no goods or chattels which were of the within -named E. F. at the time of his death in his hands to be administered in my bailiwick whereof I can cause to be made the sum within mentioned or in any part thereof. The answer of , sheriff. Lord Chancellor should think fit so to direct. The sheriff returned nulla bona, and after the return the Lord Chan- cellor made an order annulling the fiat. It was held a good return. It seems also to be a correct return where the de- fendant's goods are in a place where the sherifi cannot exe- cute the writ, as in Bucking- ham Palace ; Winter t. Miles, 10 East, 577. It also seems to be a good return where the landlord claims his rent and the execution creditor (upon notice) refuses to pay it; CoeTcer V. Musgrove, 9 Q. B. 234. The sheriff must retura either that there are goods, or that there are none; and no difficulties will excuse him; Mxmk-^.Gass, 9 Dowl. 332. 2 Nil habet is a good return, without saying nee habuit post receptionem brevis, nee habuit die quo, &c. Dalt. eh. 36. ^ Bromage v. Taughan, 7 Exoh. 224. ^ When the return is in a convenient form, it is indorsed on the writ itself. When it is not, these words are indorsed: "The execution of this writ appears in the schedule here- unto annexed ; ' ' and the return itself is engrossed on a distinct panel. ^ Nulla bona is the proper return when the person named in the writ has no property liable to be seized; ShattockY. Carden, 6 Exch. 725. It is also the proper return to a second or other writ, wheii the proceeds have been ex- hausted by a landlord's claim for rent, or by the expenses of the levy, or by a writ having priority, or the like ; Drewc v. Xainaon, 11 Ad. & E. 538; Wintle v. Freeman, ib. 539; Seencm v. Evans, 1 Dowl. N. C. 204; Dennis v. Wluitham, L. K., 9 Q. B. 345. In SmalU coiiibe V. Olivier, 13 M. & W. 91, between the delivery and return of the writ, the Court of Eeview had ordered that a fiat should be annulled if the Digitized by Microsoft® 206 ■WRITS OF EXECUTION. Same with Devastavit. The within-named C. D. has no goods or chattels &o. [b* before] but I do further certify and return that divers goods and chattels -which were of the said E. F. at the time of his death to the value of the sum within mentioned after the death of the said E. E. came to the hands.of the said C. D. to be administered which said goods and chattels the said 0. D. hath before the coming of this writ to me directed eloigned wasted and converted to his own use. The answer, &o. Fieri Feci. By virtue of this writ to me directed and delivered I have caused to be made of the goods and chattels of the within- named C. D. the sum within mentioned which I have ready at the time and place within mentioned to be rendered to the within-named A. B. as within I am commanded. The answer, &c. Fi. Fe. as to part and Nulla Bona as to residue. By virtue of this writ to me directed and delivered I have caused to be levied of the goods and chattels of the within- named 0. D. the sum of £ • which I have ready at the time and place within mentioned to be rendered to the within A. B. in part satisfaction of his claim. And I do further certify and return that the said 0. D. hath no goods or chattels within my bailiwiok whereof I can cause to be made the residue of the said sum or any part thereof as within I am commanded. The answer, Sea. Fi. Fe. and payments to landlord Sfc.^ By virtue of this writ to me directed and dehvered I have caused to be made of the goods and chattels of the within- named C. D. the sum of £ part whereof viz. £ I have paid to Sir Gr. M. Baronet the landlord of the premises whereon the said goods and chattels were seized for rent due to him for the said premises at last \£ other part thereof to one J. B. which I was commanded to levy for him of the said C. D.'s goods and chattels within my bailiwiok by a writ of . fi. fa. delivered to me before the delivery of the one at the suit of the said A. B. to wit on the day of a.d. 18 — £ other part thereof to one X. T. which I was commanded to levy for him of the said C. D.'s goods and chattels within my baihwiok by a certain other writ of fi. fa. delivered to me before the delivery of the one at the suit of the said A. B. to wit on the day of • a.d. 18 — £ further part thereof I have paid to E. E. for Queen's taxes due and owing to her Majesty from the said C. D. for and in respect of the said premises] and £ further part thereof I have retained for poundage and expenses and £ residue thereof I haye ready at the time and place within mentioned to render to ' Coolicr V. Musgrove, 9 Q. B. 234. Digitized by Microsoft® PIEEI FACIAS. 207 the said A. B. in part satisfaction of his said debt and interest : And I do hereby further certify and return that the said C. D. hath no goods or chattels in mybaUiwick whereof I can cause to be made the residue of the said sum or any part thereof as -within I am oon^anded. The answer, &c. Fi. Fe., and that goods remain in hand for want of buyers} By Tirtue of this writ to me directed and delivered I have taken goods and chattels of the within-named C. D. td the value of £ ^ which remain in my hands for want of buyers. Therefore I cannot have the money or any part thereof at the time and place within contained as I am within commanded. The answer, &c. Part sold and the rest remain in hand. By virtue of this writ to me directed and delivered I have taken goods and chattels of the within-named C. B. to the value of £ • within mentioned and have sold thereof to the value of £ which money I have ready at the time and place within contained but the residue of the said goods and chattels remain in my hands for want of buyers. The answer, &c. Fi. Fe. on goods for part and money and hanh notes for residue. By virtue of this writ to me directed I have caused to be made of the goods and chattels of the within -named C. D. the sum of £ which money I have ready at the time and place within contained to render to the said A. B. in part of the sum within mentioned. And I further certify and return that I have taken the sum of £ in money and certain bank notes for the payment of the smtn of £ \or "divers bank notes for the payment of divers sums of money amounting to the sum of £— — ' ' ] which money and bank notes I have paid and delivered to the said A. B. for the residue of the sum within mentioned according to the form of the statute in such case made and provided.^ The answer of . 1 This is not a discharge of set upon them, the return wiU the command of the writ, but be primlf aoie evidence against only an excuse that he has not him afterwards ; Barton v. Gill, themoney; Clerk v. Withers,^ 12 M. & "W. 315; Wimtle v. Mod. 299. C7j«toymrf, 7Dowl.554; Cham- ^ He must return some value hers v. Coleman, 9 ib. 594. ("value unknown" will not Formerly he was, it seems, do). He must be careful; be- concluded by his return; see cause although not estopped Clerk v. Withers. or bound by the precise value ^ See ante, p. 180. Digitized by Microsoft® 208 TfraiTS OF EXECUTION. Where hills of exchange are taken. By virtue of this writ to me directed I have seized and taken a certain bOl of exchange for the payment of the sum of £ [or "cheque," or "3, certain promissory note for the payment ■of the smn of £ " or "a certain bond Sjnditioned for the payment of the sum of £ and interest" or "a certain specialty containing « covenant for the payment of the sum of " as the case may be'] belonging to the' within -named C D. ■which said bill &c. [as the case may be] I hold as a security for the amount of the sum in the said writ mentioned according "to the form of the statute in such case made and provided. ^ The answer of . Withdrawal of Writ.- 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. I was commanded by the within-named A. B. [or "by one E. F. the solicitor of the within-named A. B."] to forbear [or "suspend"] the execution thereof and have forbore [or ' ' suspended ' ' ] the execution thereof accordingly. The answer of . Mandavi iallivo. By virtue of this writ to me directed I made my mandate to the baUifE of of his liberty of who hath the execution and return of all writs and process within the said liberty, and without whom no execution of this writ could be made by me within the same, which said bailifP hath not given me any answer thereto [or "hath answered me thus that by virtue of my said mandate to him thereupon directed he hath caused to be made of the goods and chattels of the within-named C. D. the sum vrithin mentioned and that he hath that money ready at the time and place within contained as by my said mandate he was commanded."] The answer of . Bond of indemnity for selling. Know all men by these presents that we A. B. of J. B. of and E. P. of are held and firmly bound to Gr. A. Esq. high sheriff of the county of W. in the penal sum of £ [double the sum indorsed on tlie unt] of good and lawful money of Great Britain to be paid to the said sheriff or his certain attorney executors administrators or assigns for which payment to be weU and faithfully made we bind ourselves and every one of us by himself for the whole and every part thereof J See ante, p. 180. 2 ib. 117; Barker v. St. Quin- ■ Hunt V. Hooper, 1 D. & L. tin, 1 ib. 542; Levi v. Abbott, 626; and seeHoKardY.Cauty, i Exch. 590; ante, p. 198. Digitized by Microsoft® FIERI TACIAS. 209 and the heirs executors and administrators of us and every of us firmly by these presents. Whereas the above-named G-. A. as high sheri6E of the county of W. by virtue of her Majesty's writ of fi. fa. to him directed and delivered against the goods and chattels of G. T. issued at the suit of the said A. B. out of her Majesty's court of at W. and there returnable immediately after the execution thereof hath seized and taken divers goods and chattels in ex- ecution. And whereas since the seizing and taldng of the said goods and chattels in execution as aforesaid the same have been claimed by one J. 0. who hath given notice to the said sheriff not to proceed to a sale of the said goods and chattels. And whereas the said A. B. hath applied to the said sheriff and requested him to sell the said goods and chattels so seized as aforesaid and to pay to the said A. B. the money arising from the sale thereof which the said sheriff has consented to iipon being indemnified for so doing. Now the condition of the above-written obHgatiou is such that if the above-boundeu A. B., J. B. and E.. P. their heirs executors or administrators do and shall from time to time and at aH times hereafter well and suf&ciently save harmless and keep indemnified the said sheriff his under-sheriff deputy and officers and each and every of them of from and against all losses costs charges damages and expenses which he or they shall or may sustain suffer bear pay expend or be put unto for or by reason or means of selling the said goods and chattels so seized and taken in execution as aforesaid ; and also of from and against all action and actions or any proceeding or proceedings which now are or shall or may at any time or times hereafter be brought commenced or prosecuted rightfully or wrongfully against the said sheriff his under-sheriff deputy arid officers or any or either of them for or by reason or means of the selling the said goods and chattels or for or by reason or means of any other matter or. thing whatsoever relating thereto tlien the above-written obligation to be void otherwise to stand and remain in full force vigour and effect. A. B. Signed &c. J. B. E. P. Condition of Bond for Withdraioing. "Whereas the above-named Gr. A., as high sheriff of the coimty of W.' by virtue of her Majesty's writ of Ji. fa. to hun directed and delivered against the goods and chattels of Gr. T. issued at the suit of A. B. out of her Majesty's court of at W. and there returnable immediately after the execution thereof hath seized and taken divers goods and chattels in ex- ecution. And whereas since the seizing and taMng of the said ' goods and chattels in executioii as aforesaid the same have been claimed by one J. C. who hath given notice to the said sheriff not to proceed to a sale of them. And whereas the above- named J. C. hath applied to the said sheriff and requested him to abandon the possession of the said goods and chattels, and to return nulla bona which the said sheriff hath consented Digitized by Microsoft® 210 TraiTS or exectjtioh". to do upon being indemnified. Now the condition of the above-written obligation is such that if the above-boiinden J. C. and X. T. their heirs executors or administrators do and shall from time to time and at all times hereafter well and sufficiently save harmless and keep indemnified the said sheriff his und6r-sherifp deputy and officers and each and every of them of from and against all losses costs charges damages and expenses which he or they shall or may sustain suffer bear pay expend or be put unto for or on account or by reason of abandoning the possession thereof and returning nulla bona to the said court ; and also of and from and against all action and actions or any proceeding or proceedings which now are or shall or may at any time or times hereafter be brought com- menced or prosecuted rightfully or wrongfully against the said sheriff his under-sherifi deputy and officers or any or either of them for or on account or by reason of abandoning the posses- sion and returning imlla bona or for or on account or by reason of any other matter or thing whatsoever relating thereto then the above-written obhgation to be void otherwise to stand and remain in full force vigour and effect. Signed, &c. J. C. S. T. Section V. ELEGIT. This is a judicial writ wHch lies to recover ajij sum of money or any costs payable under a judgment or order, or upon a recognizance in any Conrt.^ "Writ. It was fii'st given by the Statute of "Westminster 2 (13 Edw. 1, 0. 18), wbicb provided that it should be " in the election" of the judgment creditor to have a writ of fi. fa., or that the sheriff should deliver to him all the chattels of the debtor, and a moiety of his land at a reasonable price, till the debt be levied. It was afterwards, by the Statute of Frauds,^ and the 1 & 2 Yict. c. 110, enlarged from legal to trust estates, and from a moiety to the whole of the debtor's lands. 1 Co. Litt. 289 b; Dalt. ch. Acts, Ord. 42, r. 15, ante, 28; GUb. Exon. 32; Jud. p. 170. 2 29 Car. 2, u. 3. Digitized by Microsoft® ELEGIT. 211 The writ commands the sherifE to cause to be de- livered to the plaintiff by a reasonable price and extent, all the goods and chattels of the defendant, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and heredita- ments of copyhold or customary tenure, as the defen- dant or any person or persons in trust for him was or were seised or possessed of, on the day on which the decree or order was made under which the execu- tion issues,' or at anytime afterwards; or over which the defendant on that day, or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit. The writ is indorsed as in other cases.^ m Warrant.^ W. to wit. Sir G-. M. bart. sheiiff of the county of W. aforesaid to T. D. and B. B. my bailifFs greeting : By virtue of the "writ of elegit to me directed and deKvered I do hereby command you and each of you jointly and severally to seize and take aU the goods and chattels of C. D. (except his oxen and beasts of the plough) in my baHiwiok so that I may cause the same to be delivered to A. B. as by the said -writ I am commanded and forthwith certify the same to me. Given imder the seal of my office this day of a.d. 18 — . sheriff. The warrant cannot contain instructions to the bailiffs to appraise the goods, or to value and extend the lands ; this must be done by a fury on incLuisition. The sheriff cannot deliver any goods in execution or 1 This is the old form of sheriff must conduct the in- writ in use before the 27 & 28 quiry accordingly. The re- Vict. u. 112 (seep. 164), and sponsibflity does not rest with appears to be inconsistent with Mm. the provisions of the first sec- ^ See pp. 174, 176. tion of that Act. The form ' For warrant to bailiff of is, however, retained in the liberty, see Boothman v. Sur- schedule to the Judicature rey, 2 T. K. 5 ; Jackson v. Sill, Act and Rules, and if the writ 10 Ad. & E. 485. is issued in that form the p2 Digitized by Microsoft® 212 WRITS OP EXECUTIOlf. extend any lands but such, as are so appraised and valued.' Soi2m'e. The seizure under the above Tvarrant is executed in precisely the same manner, and the same things are seizable, as under a fi. fa. ; with the exception of money, bank notes, cheques, bills of exchange, pro- missory notes, bonds, specialties, or other securities for money, which are made subject to a fi. fa. by the 1 & 2 Viet. c. 110, s. 12, but cannot be taken under this writ, as that Act does not extend to an elegit. Sale. There is, however, no sale under this writ. Wh.at- ever is seized is delivered to the plaintiff "by a reasonable price and extent," to be determined by a juiy.^ Inquiry. Upon receipt of the writ the sheriff appoints a time for its execution; and impanels a jury for the pur- poses mentioned in the writ, as on'a writ of inquiry. They may go to the house or ground to be extended, or where the goods to be appraised are, and there may appraise and value the same ; and may go into the house for that purpose, if the door be open.' On the day and at the time and place appointed for the inquiry, the execution creditor, or his solicitor, attends with his witnesses or other evidence to show what goods and chattels the defendant has and their value, and also what lands, and the nature of their tenure and yearly value. The jury must be charged, and the oath administered to them, and the inquisi- tion returned in accordance with the command of the writ. ' 4 Co. 74; Dyer, 100 a; his term; Goodyere v. Ince, Dalton, CO. 28, 68 ; 2 Wms. Cro. Jac. 246. Saund. 69 c. ' Semaync^s case, 5 Co. 91; 2 Co. Litt. 289 b. One con- 1 Sm. L. C. 105 ; Dalt. 134, sequence of this is that if adds, " but he may not break a term be seized, and judg- open the doors," &c. ; but ment afterwards reversed, the this seems not accurate as to termor must be restored to gates. Digitized by Microsoft® ELEGIT. 21 3 No notice need be given to the debtor.^ Wliere several writs of elegit against the same Priority of debtor are delivered to the sheriff for execution, the priority depends, as in other cases, upon the time of delivery to the sheriff.'' If the chattels taken be sufficient to satisfy the ^atfx- debt, then the sheriff ought not to extend the land.^ If not sufficient, however, he must proceed to extend the whole of the debtor's real property (except the benefice, including the glebe, of a parson or vicar), whether in fee, in tail, in severalty, joint tenancy, tenancy in common, coparcenary, for life, for years, copyhold, customary, or in reversion; whether they be tenements, rectories, tithes, rents or hereditaments, legally vested in him, or of which any other person in trust for him. is seised or possessed, or over which such person has any disposing power, which he may without the assent of any other person exercise for his own benefit. By the 1 & 2 Vict. c. 110, s. 11, it is declared to be land, &o. legally vested, &e. in hiTn at the time of entering up the judgment, or at any time afterwards ; but the 27 & 28 Yiot. o. 112, alters this to the time of the actual delivery in execution.* The wife's lands, which the husband has during co- verture, are extendible ; ' so also is land conveyed to a local board, and held by them for public purposes." "Land," says Blackstone,' " coinprehends all things of a permanent substantial nature ; being a word of a very extensive signification. " " Tenement' ' is a word of still greater extent, and though, in its vulgar acceptation, 1 2Wni8.Saund. 69 c, 11.(2). chattels. " Guest V. Cowbridge Rail. * See ante, p. 164, and Co., L. E., 6 Eq. 619. p. 211, innotis. 3 2 Inst. 395; Vin. Ab. ^ Dalt. 136. Exec. (M). It seems that a ^ Worral Waterworks Co. v. term of years, if certain, may Lloyd, L. E., 1 0. P. 718, be treated as either land or ''2 Bl. Comm. 16. Digitized by Microsoft® 214 •WRITS OF BXECUTIOlsr. it is only applied to houses and other buildings, yet in its original, proper and legal sense, it signifies every- thing that may he holden, provided it be of a per- manent nature ; Tvhether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus *' Uberum tenementum," frank tenement or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like ; and, as lands and houses are tenements, so is an advovson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are aU. of them, legally speaking, tenements. But " hereditament," says Sir E. Coke, is the largest and most comprehensive expression ; for it includes not only lands and tene- ments, but whatsoever may be inherited, be it cor- poreal or incorporeal, real, personal, or mixed. Thus an heirloom, or implement of furniture, which by custom descends to the heir together with a house, is neither land nor tenement, but a mere movable : yet being inheritable, is comprised under the general word hereditament : and so a condition, the benefit of which may descend to a man from his ancestor, is also a hereditament. Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen, and handled, by the body : incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. Corporeal hereditaments consist wholly of substantial and per- manent objects ; aU which may be comprehended under the general denomination of land only. For "land," says Sir E. Coke, comprehendeth in its legal signification any ground, soU, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, Digitized by Microsoft® ELEGIT. 215 marslies, furzes and heatli. It legally includes also aH castles, houses, and other buildings, for they consist of two things : land, which is the foundation, and structure thereupon ; so that if I convey the land or ground, the structure or building passes with it. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism ; but such is the language of the law : and I cannot bring an action to recover possession of a pool or other piece of water by the name of water only ; either by calculating its capacity, for so many cubical yards ; or, by superficial measure, for twenty acres of water ; or, by general description, as for a pond, a watercourse, or a rivulet : but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. Eor water is a movable wandering thing, and must of ne-« cessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein : wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immovable ; and therefore in this I may have a certain substantial property, of which the law will take notice, and not of the other. Land hath also, in its legal signification, an indefi- nite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law : upwards, therefore, no man may erect any building, or the Hke, to overhang another's land ; and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface ; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but everything under it or over it. And, Digitized by Microsoft® 216 -WBITS OF EXECTJTIOM'. therefore, if a man grants all Ms lands, lie grants thereby all Ms mines of metal and other fossils, Ms woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, ex- cept in the instance of water ; by a grant of wMch, nothing passes but a right of fisMng : but the capital distinction is tMs, that by the name of a castle, mes- suage, toft, croft, or the Uke, nothing else will pass, except what falls with the utmost propriety ujider the term made use of ; but by the- name of land, wMchis nomen generalissimum, everything terrestrial win pass. What not It has already been mentioned ' that money, and extendible. . . . „ ■, ■, • ■, , . various securities tor money, though made subject to a fieri facias by the 1 & 2 Vict. o. 110, s. 12, cannot be extended under an elegit ; and generally no chose in action is extendible.'* The general rule is that whatever cannot be taken under a fi. fa.' is also not extendible as goods and chattels under an. elegit ; and that land in mortgage, or any interest in land not capable of actual delivery, as for example an equity of redemption, or a remainder expectant,* is not ex- tendible under the latter part of the writ. Nor, it seems, is a bare rent extendible, as a rent seek f nor anything wMch cannot be granted and assigned : as the ofiice of filacer, the half-pay of an officer, or the Uke." So a trust, created by a defendant in favour of Mmself and another person, was held to be a trust not witMn 29 Car. 2, c. 3, s. 10; that clause being confined to cases where the trustees are seised or 1 Ante, p. 212. « Me South, L. E,., 9 Ch. = Sharp y. Key, 8 M. & W. 369. 379. 5 Wahal\.]Ienth,Cro.'E\iz, 3 See ante, p. 181. 656; Vin. Ab. Exec. (M). « Dyer, 7. Digitized by Microsoft® ELEGIT. 217 possessed in trust for a defendant alone, and not jointly -with another person.' Bona ecclesiastica are not extendible under this writ : nor an adrowson in gross :^ nor the glebe belonging to the parsonage or vicarage, or churchyard.^ Nor a term in right o£ the wife as administratrix, for the debt of the hus- band.* Again, if a man be disseised, against whom judgment is recovered, the lands in the hands of the disseisor shall not be liable ; for though the disseisee has the right of possession, yet they are not his until recovered.^ So, if a feoffment be upon condition, and the feofEee acknowledge a statute, and the con- dition be broken, the feoffee shall enter into the lands freed of the charge of the statute, because he comes in by a prior title, and the feoffee hath no right to the lands, not having performed the con- dition upon which the lands were given him.^ When land is extended, the elegit and inquisition Eetum of must be returned and ffled' in order to complete the execution. When this is done the legal title to the land delivered vests in the plaintiff, who may assert his right of entry in any way that the law allows. He must not use violence, or he may subject himself to a criminal charge for breach of the peaee.^ He may bring ejectment if it is an estate in possession, or he can sue for the rent, if it is a reversion,' or he may obtain a summary order upon petition for the sale of the debtor's interest, or for an inquiry, where 1 Ball T. Greenhill, 4 B. & » Vin. Ah. Exec. (M) ; Gilb. A. 684; see also JECarris v. 42. Booker, 4 Bing. 99. " Gilb. 42. 2 Gilb. 39; Vin. Ab. Exec. ' 2 Wms. Satmd. 69 e. (M). ^ See Newton v. Sarlmid, 1 3 GUb. 40; 3 B. & P. 327. So. N. C. 474. ' Sidler v. Funter, Cro. Elizv ' He may distrain -without 292. attornment ; Lloyd v. Demies, 2 Ex. 103. Digitized by Microsoft® 218 WKITS OF EXECITTIOIS'. Delivery of lands a , satisfaction. Landlord's claim for rent. there is any doubt as to what the saleable interest of the debtor is.^ The words of the old writ of elegit were " to hold as his freehold;" yet the interest which a tenant by elegit had in the land delivered was not a freehold, but a chattel interest devolving upon his executors.^ The form of writ now in use has the words, " to hold the said lands, &o., according to the nature and tenure thereof, to him and to his assigns untU. the said sums, together with interest, shall have been levied;" i.e., shall have been, or might have been, levied ; for if the tenant by elegit neglect to take the profits, when he might take them, he is concluded thereby.^ After lands are extended on an elegit, the plaintiff cannot sue out any other writ of execution, for this is deemed satisfaction ;* but is otherwise if nothing be done or returned upon the elegit.' So if the sheriff deliver goods to the plaintiff for part of the debt, and return nihil as to the land, another elegit or a fi. fa, may issue for the residue, or he may have debt upon the judgment.^ So if the return be that he cannot deliver the lands, because they are already extended, a fi. fa. may afterwards issue.* By the 8 Anne, c. 14, s. 1, no goods &c., shall be liable to be taken by virtue of any execution, on any pretence whatsoever, unless the party at whose siiit the said execution is sued out shall, before the removal of such goods from off the said premises by virtue of such execution or extent, pay to the land- lord not exceeding one year's rent." There seems to be no doubt, therefore, that where goods are ' JSx parte Grissell, L. R., 2 Ch. 385. " 1 Wms. Exors. 5S4. 3 Co. 4, 82. * Crawley v. Lidgent, Cro. Jao. 338. " See 2 Wms. Saimd. 68 d. « See ante, p. 202. Digitized by Microsoft® ELEGIT. 219 delivered imder an elegit the landlord is entitled to a year's rent ; but seeing thai;, under an elegit, the sheriff has only power to distrain, not to sell, "whence is the landlord's rent to come, or how is the sheriff to act ? We conceive, if the execution creditor, upon notice, refuse to satisfy the landlord's claim, the sheriff should not deliver the goods, but return the facts. Indeed, in such a case, the return of nulla bona seems to be sufficient.' In the case of bankruptcy of the defendant, it is Bankruptcy. provided by the Bankruptcy Act that any execution or attachment against his land, executed in good faith by seizure before the date of the order of adjudica- tion, is valid if the person on whose account it was issued had not, at the time of the seizure, notice of any act of bankruptcy committed by the bankrupt and available against Hm for adjudication.^ Where goods are seized under this writ, the sheriff Potmaage. is entitled to the same poundage as on the execution of a fi. fa.' Where land is delivered he is entitled to the same amount, to be calculated on the yearly value of the lands extended,* and not on the sum to be levied under the writ.^ Return of Nihil!^ TTie -within named C. D. had not nor hath where yrrA has heen duly registered any goods or chattels in my bailiwick nor had nor hath he or any person in trust for him any land tenement rectory tithe rent or hereditament in my hallivick nor any disposing power over any such land [&c.] in my haUiwick which I can cause to be deHvered to the said A. B. by a reasonable price and extent as within I am commanded. The answer of , sheriff. ' See Eiseley Y.Ryle, 11 M. * NasA v. Allen, 1 Dav. & & W. 16 ; Cocker v. Musgrove, M. 16 ; see also Frice v. Sollis, 9 Q. B. 223. 1 M. & S. 105. ^ 32 & 33 Vict. V. 71, 0. 95, " The inquisition need not subs. 2. be remitted with this return. ' Ante, p. 200. Stone/iouse v. JSwcn, 2 Sir. B. < 3 Geo. 1, c. 15, a. 16. 874. Digitized by Microsoft® 220 WRITS OP EXECUTION. Deliver]/ of Goods and no Lands. By virtue of this writ to me directed I have caused to be delivered to the within named A. B. all the goods and chattels of the within named C. D. in my bailiwick (except his oxen and beasts of the plough) at the price of £ to hold the said goods and chattels as his proper goods and chattels in part satisfaction of the sum and interest within mentioned. And I do further certify and return that the said C. D. had not nor hath he nor had nor hath any person in trust for hi m any land tenement rectory tithe rent or hereditament in my bailiwick nor any disposing power over any such land [&c.] in my bailiwick which I can cause to be delivered to the said A. B. for the residue of the said sum and interest or any part thereof as within I am commanded. The answer of . Lands delivered. By virtue of this writ to me directed I have caused to be de- livered to the vrithin named A. B. at a reasonable extent all the lands which the said C. D. hath in my bailiwick. And I do further certify and return that the said C. D. had not nor hath he any goods or chattels within my bailiwick nor any tenements &c. [as before] which I can cause to be delivered to the said A. B. as within I am coxomanded. The answer of . The execution of this vn?it appears in the inquisition here- unto annexed.' The answei; of . W. to wit. An inquisition indented taken at in the county of W. the day of A. d. 18 — before me sheriff of the county aforesaid by virtue of the writ of our lady the Queen to this inquisition annexed by the oath of J. B. [&c. J twelve honest and lawful men of the county aforesaid who being duly impanelled drawn by ballot and sworn say upon their oaths that the said C. D. is possessed of his own right of the goods and chattels f ollo-nong, that is to say of the value or price of £ which said goods and chattels I the said sherifB have caused to be dehvered to the said A. B. to hold the said goods and chattels as his own proper goods and chattels in part satis- faction of the sum and interest in the said writ mentioned.^ And the jurors aforesaid upon their oath fui-ther say that the said C. D. [or " one W. C. in trust for the said C. D."] is [or, was on the day &c. as in the utW] seised in his demesne as of fee of and in a dwelling house and farm with the appur- tenants commonly called or knowix by the name of P situate ' If anything has been de- of a moiety is to be delivered, ducted for rent, taxes, or the it is sufficient to describe it like, state it as in fi. fa., ante, in any manner whereby the P- 206. estate may be identified, ^ As now the whole instead Roberts v. Farry, 13 M. AW. Digitized by Microsoft® ELEGIT. 221 and 'bemg in the parish of in the comity aforesaid: that is to say one messuage fifty acres of arable land &c. of the clear yearly value of £ in aU issues beyond reprizes [or " of free- hold for and during the term of his natural life" or " of and in one undivided moiety of and in &c.," or "in his demesne as of fee at the 'will of the lord aocordiag to the custom of the manor of in the county aforesaid, " or " as of fee and right, or ' of freehold for and during the term of his natural life' of and in a certain rent charge [or ' annuity'] of £ payable by four equal quarterly payments on &o. and charged and charge- able upon and issuing and payable out of certain lands and premises wifii the appurtenants situate and being in the parish of in the county aforesaid ; " or " that the said CD. has [or had] a certain disposing power over {stating the nature of the power) which power he the said C. D. may without the assent of any other person exercise for his own benefit"] which said I the said sheriff on the aforesaid day of taking this inquisition have caused to be deHvered to the said A. B. to hold according to the nature and tenure thereof to him and his assigns according to the form of the statute in such case made and provided until the sum and interest in the said writ mentioned shall have been levied : And lastly the Jurors afore- said upon their oath aforesaid say that the said C. D. in the said writ named, has not any other or more goods or chattels in my bailiwick nor had he or any person in trust for him on the day of or at any time afterwards any other or more lands or tenements nor any rectory tithes rents or heredita- ments in the county aforesaid whereof he the said C. D. &c. is seised or possessed of nor any other- or more lands [&c.] in the county aforesaid over which he had any disposing power which he might without the assent of any other person exercise for his own benefit to the knowledge of the said jurors. In witness, &c. 358; Sherwood Y. Clark, 15 ib. if they find fraud, partiality, 766. And it would seem now, &o. may stop the filing and for the same reason, to be award a new elegit, 2 Inst, sufficiently certain to describe 396. So if the lands are ex- a term (without showing its tended at an undervalue, Com. beginning or end), as a "term Dig- Exec. (C 14). If the of years yet to come ;" see 2 return be void, the objection Wms. Saund. 68 g, 69. But may be taken in an action of the inquisition must be cer- ejectment brought to recover tain as to the locality of the actual possession, JFetmy v. lands where the iuquisition is Durrani, 1 B. & A. 40. If taken, the nature of the de- voidable only, and not void, fendant's estate therein, and the Court will quash it, ib. their value, ib. 70 d; semble. The iuquisition may be good such a degree of certainty as in part and bad in part, see w^ould do m a conveyance JiToms v. /ones, 2 B. &C. 242; woidd suffice, 13 M. & W. Roberts v. Parry, 13 M. & "W. 357. Before inquisition filed, 356. •the Court may examine it, and Digitized by Microsoft® 222 WRITS OF EXECUTION. ■nrhen issued. How exe- cuted. Distringas. Section VI. LEVAM FACIAS. This writ used to be, at common law, the only writ of execution against the lands of a defendant ; but it is now, as regards civil process (except outlawry) entirely superseded by the writ of elegit. It is, however, stUl issued from the Crown office to recover a penalty on a conviction removed into the Queen's Bench Division by certiorari, or to recover against inhabitants convicted of a nuisance in not repairing highways or the like, the necessary sums to complete the repairs. The writ directs the sheriff to levy the sum. of the goods and chattels, lands and tenements of the de- fendant. It differs, therefore, in this respect from an elegit, that under it the sheriff may sell, the goods, and may himself collect the debt out of the profits of the land, as corn or grass growing thereon. He has, however, no authority to meddle- with the debtor's lands, so as to sell or deliver them in satisfaction.^ The recovery of a penalty against a company is also sometimes enforced by distringas, as in the case of taxes.'' It seems that the distress may be sold after a reasonable time, usually fifteen daj's, if the debt be not satisfied in the meantime. Section VII. DE NOCUMENTO AMOVENDO. Upon a conviction for obstructing a highway, or for other nuisances, a nominal fine is sometimes imposed, and a writ of abatement (de nocumento 1 3 Co. 11; 2 Inst. 450; Plowd. 441; Caml). 470. 2 See p. 148. Digitized by Microsoft® ATTACHMENT, AKD CAPIAS AD SATISFACIENDUM. 223 amovendo) awarded, coinmaiidiiig tlie sheriff to cause tlie nuisance to he removed witliout delay. The execution of this writ must of course depend upon the circumstances of each case. If the de- fendant satisfies the Court that he is about to remove the nuisance, they may order the writ to be sus- pended, or to lie in the office for a certain time, to give the defendant an opportunity of removing or abating the niiisance himself.' Section Vill. ATTACHMENT, AND CAPIAS AD SATISFACIENDUM. At common law there was no power to imprison imprison- any person for the debt or damage of a subject, debt except in actions for trespass "vi et armis." The first alteration in the law seems to have been intro- duced by the Statute of Marlbridge,^ in an action of account. This was followed by other statutes leading to the judicial-writ of capias ad satisfaciendum, which used to issue at the instance of any person who re- covered debt or damages in any personal action. Now, however, this general power of imprisonment for debt is again abolished (except in the case of Crown debts) by the Debtors Act, 1869,^ by which it is confined to certain special cases where a debt is contracted, not in the ordinary intercourse of business, but in a manner in some degree worthy of being visited with punishment,* and is limited in those cases to a period of one year. 1 Com. Cr. Pr. 154. * MiddUton v. Chichester, L. = 52 Hen. 3, c. 23. , E., 6 Ch. 156, 3 32 & 33 Vict. c. 62, s. 4. Digitized by Microsoft® 224 WEITS OF EXECUTION. The law, therefore, as to imprisonment for dett, remains (subject to that limitation) as it was before the Debtors Act, 1869, in the following six cases: — (1) default in payment of a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract ; (2) default in payment of any sum recoverable summarily before a justice or justices of the peace ;' (3) default by a trustee or person acting in a fiduciary capacity,'' and ordered to pay by a court of equity any sum in his possession ' or under his control;* (4) default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct '^ as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the Court ° making the order ; (5) de- fault in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorized to make an order ; (6) de- fault in .payment of debts due to the Crown,' for in this case the Debtors Act does not apply. TVkenwrit In aU these cases (except the last, which will be noticed presently), the creditor may, as a matter of right, ^ obtain a judge's order for a capias ad satis- faciendum, or, as is the more usual course, for un attachment to issue against the person in default, under either of which he may be imprisoned for a period not longer than a year.' ^ Costs at quarter sessions, ' Se Sope, L. B. , 7 Ch. M. T. Fratt, L. B,., 5 Q. B. 523. 176. 6 He Rmh, L. E., 9 Eq. ^ Ex parte Sooson, L. B., 8 147. Ch. 231. ' Such as estreated recog- ^ Middloton v. Chichester, L. nizances, Se Smith, 2 Ex. D. B., 6 Ch. 152. 47. * Evans T. Sear, L. B., 10 » j^„„„s y. ^^.f,,.^ supra. Cli. 76. 3 32 & 33 Viot. o. 62, s. 4. Digitized by Microsoft® ATTACHMENT, AND CAPIAS AD SATISFACIENDUM. 225 The Debtors Act, 1869, also leaves imtouclied th.e power of the Court to commit for contempt.' An application for an attacliment can only be made after notice to the party against whom it is to be issued,'' or his solicitor.' It should be made promptly, and upon affidavits. Not more than three persons may be included in one writ. Under a ca. sa. the sheriff is commanded to take writs, the body of the defendant, and him safely keep, so that he may have his body in Court to satisfy the ' plaintiff. It is an execution of the highest nature, and, although it did not extinguish the debt, it was, before the period of imprisonment was limited to a year, a complete bar to all further remedy against the debtor. Under an attachment he is conunanded to attach the defendant so as to have him in Court to answer, and perform and abide such order as the' Court may make. As regards the arrest, the pro- ceedings under these two writs are substantially the same ; they will therefore be considered together. Warrant. W ) A. B. esq. sherifB of the ootmty aforesaid to the to wit. j keeper of the gaol of the said county and also to J. S. myhailifl, greeting: Byvirtueof her Majesty's writ of capias ad satisfaciendum [or attachment] to me directed, I conunand you and every of you jointly and severally, that you omit not by reason of any liberty in my bailiwick but that you enter the same and take [or attach] C. D. wheresoever he shall be found in my bailiwick and him safely keep so that I may have his body before her Majesty's High Court of Justice, Division, immediately after the execution hereof as in the said writ I am commanded. And in what manner you have executed this my warrant certify to me immediately after the execution thereof. Given under my seal &c. this day of . The high sheriff or under-sheriff may execute the How writ personally without warrant — ^it is, however, 1 Sarva/ v. Sail, L. R, 11 r. 2. Eq. 31. * Brovming v. Saiin, 5 Ch. * Jud. Act, 1875, Ord. 42, D. 511. A. Digitized by Microsoft® Q cuted. 226 WRITS OP BXECrTION. usually executed by a bailifE under warrant. The person making out the warrant must have the writ in his custody.^ The writ, in common with other writs of execution, remains in force for one year only from its date, unless renewed.'' The sheriff must, however, arrest on the first opportunity, raising, if need be, the posse comitatus. He may not arrest on civil process on a Sunday,^ unless it be to retake a person after a negli- gent escape.* If the writ contains, as it usually does, a "non omittas" clause, no warrant to the bailiff of a liberty is required where it is to be executed within the liberty,' for the sheriff, and not the bailiff, must execute a writ containing such a clause.^ There were formerly, especially in London and Southwark, numerous "pretended privileged places," many of which are now no longer so. The sheriff, however, should not arrest in a court of justice, nor in a royal residence. The arrest would be good, but he might be liable to an information for intrusion, unless he first obtain the permission of the lord steward, or other proper officer of the royal household.' How exe- The arrest is usually made by corporal seizure or by touch ; but this is not absolutely necessary : * for where the officer went into the room and fastened the door, teUing the debtor, at the same time, that he 1 6 Geo. 1, 0. 25, s. 53. 626; see also 5 T. B. 25. ^ Jud. Act, 1876, Ord. 42, ^ Carrett v. Smallpage, 9 rr. 6 and 16. It -Hfould seem East, 330. to be mcorrect to describe " Ante, p. 34. some of the bailable attacb- ' M. v. Stubbs, 3 T. E. 735 ; mentsas "writs of execution," Sare v. Ityde, 16 Q. B. 394; but no distinction is made in Att.-Gen. v. I)akin, L. E., 4 the rules cited. H. L. 338. ^ 29 Car. 2, o. 7, s. 6 ; » Samson v. Hodgixm, 10 Eggmgton's case, 2 E. & B. 717. B. & C. 445. * Parker v. Moor, 2 SaUc. Digitized by Microsoft® ATTACHMENT, AND CAPIAS AD SATISFACrENDITM:. 227 arrested him, it was lield good.' The officer to ■whom the warrant is directed need not he the person actually making the arrest, nor is it ahsolutely neces- sary that he be within sight when the arrest is made ; hut he must he acting in and ahout the arrest. He cannot, for instance, stay at home and send another to make it.' If the party is already in prison, the sheriff's duty is merely to lodge the order with the keeper or gaoler as a detainer. There are privileges of person and place, which iWTiiege must he ohserved hy the officer executiag the war- rant, that is to say, there are persons who are privi- leged from arrest on civil process, and places which afford a sort of sanctuary for persons who might he arrested elsewhere. This privilege is of two kinds, viz., permanent and temporary. The former may be urged to prevent the issuing of the writ, the latter suspends its execution. The following persons are Permanent permanently privileged : — The royal family, and the ^" ^^" chaplains and servants of the sovereign (unless leave be obtained from the lord chamberlain of the royal household), the lord . chancellor, the lord keeper, peers, temporal and spiritual, English, Scotch or Irish, peeresses by birth, marriage or creation, the widows of peers, members of Parliament,' bishops, and, it seems, members of Convocation, ambassadors and other ministers of foreign states at this Court, and their domestic servants,* judges and their neces- sary servants, masters in Chancery, cursitors, minis- * See Berry v. Adarmon, 6 Bankruptcy Acts ; Duke of B. & C. 528. Newcastle v. , Morris, L. E., i 2 match T. Archer, Cowp. H. L. 661. 65. * 7 Anne, c. 12, s. 3 ; For- ' See Goudy v. Duncomhe, 1 rester's case, temp. Talbot, Exoh. 435, as to duration of 281. A consul has not the privilege. Privilege of par- privilege ; Viveaah v. Seeker, liament exists at common law, 3 M, & S. 284. and is not taken away by the Dig/Szid by Microsoft® 228 wmTS OF execution. t^j-s, and known clerks of tlie Court of Chancery, and the menial servants of the chancellor or keeper or of their ministers and officers, assistant officers of hoth Houses of Parliament who are summoned and con- tinually attend there, the serjeant-at-arms, door- keepers, clerks, &c., persons who are the servants of the sovereign and liahle to be called on as such to perform services,' and the auditor of the exchequer and other officers. A person adjudicated a bank- rupt is also protected from arrest, pending the bank- ruptcy proceedings, in respect of any debt provable in the bankruptcy,^ although it be a debt from which the order of discharge in bankruptcy would not re- lease him.' Married women may now be arrested.* Temporary Other persons temporarily privileged from arrest pn ege. ^^^^ ^ bankrupt eundo morando et redeundo from the Court to pass his examinations; a barrister eundo morando et redeundo from the Courts at "Westminster and on circuit ; ' and a solicitor ° or parliamentary agent' (but this privilege, which depends on prescrip- tive usage, does not extend to their clerks).* So also all persons taking part in the proceedings of a case, whether civil or criminal, whether parties,' jurors or witnesses'" eundo morando et redeundo from any of ' See Dyer v. Disney, 16 M. & L. 80. &W. 312; Sarvey \. JDakin, ' JEx parte Watkins, 8 Sim. 3 Excfe. 266. 377. 2 32 & 33 Vict. u. 71, 8S. 12 * j>Mllips v. Pound, 7 Ex. and 13; Cobham y. Valton, Jj. 881. E., 10 Ch. 655; but see Se « Cameron v. Lightfoot, 2 Deere, ib. 658. Wm. Bl. Ill3; Fitt v. Coomes, 3 Cobham v. Dalton, L. K., 5 B. & Ad. 1078. 10 Ch. 655. " Wiether compelled by * Dillon V. Cunningham, L. subpoena to attend, or not ; R., 8 Ex. 23. MeScina Y. Smith, 1 H. Bl. ^ Ztmtly T. Nathaniel, 2 636. See also Newton v. Har- Dowl. 51; Newton v. Constable, land, 8 Sc. 70; In re Douglas, 2 Q. B. 166. 3 Q. B. 836 ; Strong v. Dieken- ' Clutterbuck v. Sulli, 4 D. son, 1 M. & W. 490. Digitized by Microsoft® ATTACHMENT, AND CAPIAS AD SATISFACIENDTTM. 229 the superior Coiirts, committees of either House of Parliament,' bankruptcy court,' courts martial, county courts,' and all inferior courts of law;* for a suitor wh.0 has obtained a judgment in a ciTil action cannot use the process of the Court for the purpose of "vrithdrawing from another Court a witness or other person without whose presence full justice cannot be done.* When a causahas been referred under an order of nisi priua, or by submission containing a clause to make it a rule of Court, parties and witnesses are pri- vileged as if the same was stQl before the Court.' So on writs of inquiry.' Clergjonen, eundo morando et redeundo from performing divine service, are privi- leged from arrest.* A party taken under an irregular writ is privileged in returning from' the chambers of the judge who has discharged him, although the attendance there be of his own seeking, as by habeas corpus.' Aliens are not privileged from arrest. One fo- Aliens. reigner may arrest another in this country for a debt which accrued in a foreign country whUe both re- sided there : and he may do so, although the law of the foreign country does not allow of arrest for debt.'" If a solicitor is about to quit the country he loses his privilege.'' An acquitted prisoner has no privilege ' Spry's case, 1852, not re- stable, 2 Q. B. 160. ported. ' 1 Bio. 2, c. 15; Goddard * Selby V. EiUs, 8 Bing. 166. v. Barris, 7 Bing. 320. ^ ClutterbucJc t. Hulls, 4 D. » Sex v. Blake, i B. & Ad. & L. 82. 355. * Com. Dig. Privilege (A.), '" Se la Vega v. Yianna, 1 2Q. B. 166. B. & Ad. 284; overruling ' Montagtte r. Harrison', 3 Melan v. Sulce de KUjames, 1 O. B., N. S. 299. B. & P. 138. See also Trim- ^ Jtandall v. Gumey, 3 B. & hey v. Tignier, 1 Bing. N. C. A. 252; Webh v. TayUr, 1 D. 151. & L. 676. " TAomsoM v. Jfoore, IDowI. ' Walters v. JUes, 4 B. N. S. 283 ; Flight v. Cook, 1 Moore, 34; Netvtm \. Cm- D. & L. 715. Digitized by Microsoft® 230 AnilTS OF EXECTJTION. Married women. Effect of privilege. redeundo,' the trial being at an end ; but it is other- wise where an accused person attends the Court on his recognizances, and returns after a remand.^ In many of the cases above named, it is not the priTilege of the individual but a protection thrown over Viim by the law of nations, or by the niumcipal law, for the benefit of others whose privilege it really is. "Where a judgment has been obtained against a husband and wife jointly, and it appears that she is merely a party in that character, she is entitled to her discharge if taken in execution ; but the Debtors Act applies equally to married women, who may therefore be imprisoned for debt.' A permanent privilege, as before stated, may prevent the issuing of the writ, and a temporary privilege prevents its execution. The distinction is important to the sheriff, for he would, in some cases of permanent privilege, by executiag it, incur a fine, imprisonment, and even corporal punishment. If, for instance, he were to execute it on a peer,^ peeress, or on a member of the House of Com- mons, he might be liable to be committed by the House for a breach of privilege. So for arresting an ambassador or his domestic, not only the sheriff and his officer but also the party at whose suit the process issued would be liable to punishment, pro- 16 Q. B. 394 ; but see Gallans y. Sherry, Ale. & Nap. 125. * Gilpin V. Benjamin, L. R., 4 Ex. 131. ^ Dillon V. Ctmningham, L. E., 8 Ex. 23. * If a peer be arrested, the Court or a judge will dis- cbarge him upon apphcation for that purpose. And they mU not, upon such applica- tion, enter into the right to his title. The privilege of an Irish peer is prim^ facie esta- blished ; Start/ v. Birmingham, 3 D. & E. 488 ; sed vide Davis v. Rendlesham, 7 Taunt. 679. As to a Scotch peer, see Digby V. Stirling, 1 M. & So. 116. His being a peer, and having acted as such, is sufficient. Digitized by Microsoft® ATTACHMENT, ASfD CAPIAS AD SATISFACIENDUM. 231 ■vided the name of such, domestic has been properly- registered at the Foreign Office, and transmitted to the office of the sheriffs of London and Middlesex. So also the arrest of a clergyman during his pri- vilege, with knowledge, is a misdemeanour. In any other case of privilege it is advisable for the sheriff to execute the writ, leaving the person arrested to apply to the Court or a judge for his dis- charge.' The sheriff may, if he choose, decide the question of piivilege himself and discharge the party at his own risk,' in which case he might have to contest with the plaintiff the truth of his return. Again, the sheriff is not liable in damages for arresting a privileged person, for if he has acted in obedience to a mandate of the Court he is excused.' The party suing out the writ may be liable in trespass if it is set aside, but the sheriff is not. Where a person is arrested under a ca. sa., or Bail, under an attachment in the nature of final process, such as for not obeying a decree or order of the Court, or for non-payment of money, the sheriff cannot take bail. In other cases, such as under an attachment for want of answer, he may in his dis- cretion take a bail bond, conditioned accordingly, which may be assigned to the plaintiff,* and be put in suit by him. If bail be not taken, it is the sheriff's duty to keep Escape, the pferson taken "in salva et arcta custodia ;" for if he allow a defendant arrested under a ca. sa. to go at large for the shortest time without the consent ' Graham t. Sandrinelli, i Cmstable, 2 Q,.^. IbT \ Magnay D. & L. 317. v. Burt, 5 Q. B. 393; Norton 2 Zloyd T. Harrison, L. E., v. Walker, 3 Exoh. 480; Ames 1 Q. B. 502. T. Waterlow, L. R., 5 C. P. 3 Tarlton v. Fisher, 2 Dougl. 53. 676; Cameron v. Lightfoot, 2 * ^«(»!., 2 Atk. 507. Wm. Bl. 1190; Newton v. Digitized by Microsoft® Several write. 232 -VTEITS OF EXECUTION. cut tte plaintifE it is an escape, for wliicli tlie sheriff may be made liable if any damage can be shown. It is an escape if the sheriff take bail or receive payment of the debt without authority.' His duty is to convey the party to prison ; there the sheriff's responsibility ceases, and he is not liable for any subsequent escape." Persons committed for contempt of Court are to be treated as misdemeanants of the first division.' When the sheriff has several writs in his hands against the same individual, the rule applicable to writs of fi. fa. applies to them. He is authorized to arrest on all the writs ; it is not material which one he chooses to enforce by warrant ; he has an autho- rity under each writ, not arising out of any relation of one writ to another, but from the operation of law, which empowers him in each of the cases to arrest, or to detain if he has already arrested in any one. If, indeed, he has acted collusively or im- properly in the first arrest, so that an action would lie against him, his subsequent act, grounded upon such arrest, would be void, otherwise he would be enabled to take advantage of his own wrong.* Discharge. The party suing out the process is at Hberty at any time to direct the discharge of the person arrested. Any detention afterwards would be a trespass. Under any other circumstances, the person arrested must, inasmuch as no time is mentioned in the writ at which the imprisonment is to cease, apply to the Court for an order of discharge.^ If he can show that his case is within section 4 of the Debtors Act, he wiU be ' Eob. Abr. Escape. * Hooper v. Lane, 6 H. L. MO & 41 Vict. 0. 21, SB. 31, 443. 67. 5 Me Thompson, 22 W. E. ' lb. 8.41; 28 & 29 Vict. 857. 0. 126, s. 67. Digitized by Microsoft® ATTACHMENT, Am) CAPIAS AD SATISFACIENDrM. 233 entitled to an order at the expiration of a year. Ha is also entitled to tlie order wlien lie has cleared his contempt, according to the particulars endorsed on the writ of attachment, or has paid'the debt for which the ca. sa. was issued. He cannot now be detained in prison for non-payment of the costs as formerly.^ The application should be made to the Court from which' the process issued ; if, however, protection be claimed on account of bankruptcy, the debtor may, at any time after a bankruptcy petition has been pre- sented against him, apply to the Court of Bankruptcy to restrain the proceedings.* That Court would not, however, interfere in a case of an attachment issued by a Court of competent jurisdiction upon other grounds than mere non-payment of money.' If he be wrongly discharged, he may, by leave of the Court, be re-taken.* On receipt of the order of discharge, the sheriff is Searcii. allowed a reasonable time for making a search to ascertain whether there are any other writs lodged in his office against the same person.** He then issues his discharge warrant to the gaoler. In certain cases where an attachment is issued to Sequestra- enforce acts other than mere payment of money, the person suing out the process is entitled to a com- mission of sequestration in lieu of or in addition to the attachment. The writ of sequestration is, how- ever, not directed to the sheriff. On the Crown side of the Queen's Bench Division, CroTmpro- a ca. sa. may be issued against a defendant, after judgment for the Crown, where he is not under ' Jackson v. Memty, 1 Ch. * Benyon v. Jones, 15 M. & D. 86. W. 570. ^ 32 & 33 Vict. 0. 71, 8. 13. * Samrtel v. Sulkr, I Exoh. » He Deere, L. E., 10 Ch. 439. 658. Digitized by Microsoft® 234 WMTS OF EXECITTIOIf. recognizance to appear to receive sentence, or where a penalty has been imposed ; upon wMcli, if lie cannot be found in tbe sheriff's bailiwick, proceedings to outlawry may be taken.' Crown debtors may be imprisoned just as formerly, either under an extent which directs arrest in any case, or, as is more usual, under a writ in an alter- native form commanding the sheriff to levy the debt, and in default to ^ake the body of the debtor as under a ca. sa. In Eedesias- In cases cognizable in the Ecclesiastical Courts, tical Courts. . -, , ^ i when any person neglects or reiuses to appear, or refuses to comply with the orders or decrees of any such Court, the judge who issued the citation, or before whom the contempt has been committed, may pronounce the person contumacious, and, within ten days, signify the same to her Majesty in Chan- cery, and thereupon a writ de contumace capiendo may issue.' The proctors for the complainant file in the registry a prsecipe for a significavit, and the writ issues out of the Petty Bag Ofiice, directed to the sheriff, and returnable in the Queen's Bench Division.' The writ sets out the matter of the action in which it is issued, so as to show it to be cognizable by the Ecclesiastical Court,* and commands the sheriff to lodge the defendant in gaol. It is not, therefore, necessary for the sheriff to have the body of the defendant ready to bring into Court, or to make a return to that effect. It is sufficient to return the writ with the manner in which he has executed it.* With this exception it is executed like an attachment. 1 Com. Cr. Pr. 152. 791 ; In re Gah, 1 H. & "W. = 53 Geo. 3, o. 127, s. 1. 59; R. v. Exjre, 2 Str. 1067; ' JSifdsoti. V. Tooth, 2 P. D. JJ. v. Fowler, 1 Salt. 293. 136- ^ 5 Eliz. 0. 23, =. 3. * S. V. Dugger, 5 B. & A. Digitized by Microsoft® ATTACHMENT, AND CAPIAS AD SATISrACIENDUM. 235 The sherifE does not iij. general return writs of Eetum. ca. sa. or attaclunent without being required to do so. If required he should make the return as soon as the writ is executed. The party suing out the process is at liberty to rule the sheriff to return the writ on the fifth day after it is put into his hands, or at any sub- sequent time within six months after the expiration of the office of the sheriff. If he does not make the return he is liable to an attachment or amercement. The sheriff is entitled to no poundage on money Poundage, received by him in the execution of these writs.' Eetueits. Non est inventus.'^ The ■within-named C. D. is not found in my baUiTriek. The answer of Sheriff. Returns of Cepi Corpus. I have. taken the within-named C. D. whose body I have ready as within I am commanded.^ The answer, &c. Or,. I have attached the within-named C. D. whose body remains in her Majesty's gaol for my county of . The answer, &c.' Privileged Person. Before and at the time of the coming of this writ to me directed the within-named C. D. was and still is a peer of the realm having privilege of Parliament ["a menial servant of her Majesty the Queen " or the like] wherefore the body of the said C D. before our lady the Queen on the day and at the place within contained I cannot have as within I am com- manded. The answer of • . 1 3 & 6 Vict. 0. 98, s. 31 ; turn in the case of a person B. V. Sheriff of Devon, 3 Dowl. protected by bankruptcy or 10; and see Table of Pees, privilege, post. 3 xhis is the usual return ' This would be a good re- where bail is taken. Digitized by Microsoft® 236 WBIT3 OP EXECUTION. Wlien issued. How exe- cuted. Section IX. CAPIAS UTLAGATUM. This is a writ of execution founded upon a judg- ment of outlawry pronounced by the coroner in the sheriff's coujity Court, or by the Recorder of London in the Court of Hustings.' By the common law, in all actions of trespass vi et armis in which there was a fine to the Crown, the process was a capias. But in account, debt, covenant, ■and the Uke, 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,' but outlawry is now almost obsolete in civil process,* and in criminal process is but rarely resorted to. It may be issued on a return of non est inventus to a capias ad satisfaciendum, or to a capias ad respon- dendum before judgment, on the Crown side of the Queen's Bench Division, followed by CLuinto exactus to an exigi facias.' The writ is either general or special: that is to say, it is either against the person in the same form as an attachment, or else with an additional part ia the form of an elegit against the goods and lands of the defendant. The warrant is similar to that under a ca. sa.,* and the mode of executing it is the same as under that ' In Harvey v. O^Meara, 7 Dowl. 725, it was said that the judgment was but inter- locutory, and the oa. uti. but mesne process within the meaning of the 1 & 2 Vict, c. 110, s. 7. 2 10 Co. 72; 2 Roll. Abr. 805; Co. Litt. 128 b. » Gilb. 73. * 3 Burr. 1484 ; 4 ib. 2540. Outlawry, on mesne civil pro- cess, was abolished by the 15 & 16 Vict. 0. 76, s. 24, which was in its turn repealed by the Statute Law Revision Act, 1875. ° Ante, p. 41. « Ante, p. 225. Digitized by Microsoft® CAPIAS ■CTLAGATUM. 237 writ; -with, this difference, however, that the sheriff may break open the house of the person outlawed.' At common law the defendant could not have been Bail, bailed when taken on it. Neither can he be bailed since 4 & 5 W. & M. c. 18 in criminal cases, after conviction, nor when taken upon an outlawry after judgment.* In these cases, therefore, he must be kept in arcta eustodia. He is in the position of a person attached for contempt in avoiding process, and is not in custody for debt so as to be entitled to discharge on being adjudicated a bankrupt.' With respect to his goods, chattels, lands, and iniiuiry. tenements, the sheriff is commanded by the writ to inquire, by the oath of honest and lawful men of his county, what he hath or had on the day of his out- lawry 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 Queen'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" as on an elegit. This, however, should be kept in mind, that an elegit is more comprehensive than a special ca. utl. ; for copyhold and customary lands may, by 1 & 2 Vict. c. 110, be taken under the former, but not under the latter.' Nor can trust property be taken under it.* ' Dalt. 524; Grilb. 76. words "lands and tenements" ' 3 Burr. 1484 ; 4 ib. 2540. has been already considered 3 JBx parte Stoffel, L. E., 3 ante, p. 213. Ch. 240. ' Parker, 190. * GUb. 75. 8 Cro. Jao. 513; Sty.. 41. * Lane, 23 ; Lutw. 329, The Statute of Frauds, 29 1513; see Bullock y. Dodds, 2 Car. 2, o. 3, b. 10, and 1 & 2 B. & A. 276. Vict. c. 110, would seem not " The legal import of the to apply to such a case. Digitized by Microsoft® proceeds. 238 WEITS OP EXEOTTTION. Witnesses may be subpcBnaed to attend the execution of the inquiry. When done, the sheriff takes posses- sion of the goods and chattels.' He must not oust nor disturb the possession of any tenant f he can only take the issues or profits of the freehold tenements.' Deaiingwith When the special writ is returned, the writ and inquisition are filed with the clerk of the exigents and outlawries. They are afterwards carried to the office of the Gustos BrcYium, whence a transcript is sent into the Exchequer Division,* where a rule is granted for persons to come in and claim the pro- perty seized, and upon the expiration of this rule there may issue a venditioni exponas to sell the goods, a levari facias to levy the issues and profits of the freehold land, or sequestration, as the case may be, and a sci. fa. to recover the debts.^ The money raised by these writs belongs to the Crown; but on civil process the plaintiff may have it paid to hiTn in satisfaction of his debt and costs, by applying by motion in the Exchequer Division, if it does not exceed bQl. If it exceed that sum, the plaintiff must' petition" the Lords of the Treasury. An order is then made, which, with the Attbrney-Greneral's con- sent, and with a subpoena annexed, is delivered to the sheriff, which he must obey under the penalty of an attachment.' The special ca. utl. in a civil action is so far in thQ nature of a civil process, that the landlord is entitled to his rent as under a fi. fa.^ ' 9 Hen. 6, 20, 21 ; Gilb. 75. version against Jiim that hath " lb. ; 21 Hen. 7, 7. the goo£ of the party out- • lb.; Plowd. 541; Hardr. lawed." 106, 176; Bunb. 103. 6 gee JJ. v. Sind, I Dowl. ^ IteynoUs-v. AdamSjZT.'R. 286; E. v. Armstrong, 3 ib. 578. In WilJcinson v. Rocklaa, 760; Grant v. Bryant, 6 M. & 1 Mod. Eep. 90, Hale says, Si-Zil; Alworth^. Hutchinson, " It is the course of the Ex- 1 Lutw. 334; Gilb. C. P. 16. chequer in case of an outlawry « Xidd's Pr. Poims, 54. to prefer an information in ' 2 Pr. Aichb. 1142. the nature of trover and con- ^ ,Ajite, p. 202. Digitized by Microsoft® WBITS OF POSSESSION AM) ASSISTANCE. 239 The sheriff is not entitled to poundage until the Poundage, execution of the venditioni exponas or other sup- plementary -writ." Section X. WRITS OP POSSESSION AND ASSISTANCE. A judgment for the recovery or for the delivery of the possession of land may he enforced by writ of possession.^ It may he sued out on judgment for the claimant in an action of ejectment, or where by any judgment or order any person therein named is directed to deliver up possession of any lands to some other person. No further order is necessary, but the person prosecuting such judgment must file an affidavit showing due service of the judgment, and that the same has not been obeyed.' He will then be entitled to sue out a writ of possession or assistance directed to the sheriff of the county where the property lies. It is not now necessary, as for^- merly, to prove a demand and refusal of possession.* Upon any judgment in ejectment for recovery of possession and costs, there may be either one writ or separate writs of execution for the recovery of posses- sion and for the costs, at the election of the claimant.^ The separate writs are in all respects the same as in other cases. Warrant. W ) SterifE of the comity of W. aforesaid to to wit. ) T. D. and E. B. my bailiffs, greeting : By virtue of the writ of hab. f ac. poss. to me directed and delivered I do hereby command yon and each of you jointly and severally to 1 Graham v. Grill, 2 M. & ' lb., Ord. 48, r. 2. S. 294. * DanieU's Ch. Pr. 923. 2 Jud. Act, 1875, Ord. 42, = 15 & 16 Vict. c. 76, b. 187. r. 3. Digitized by Microsoft® 240 WBITS OF EXECUTION. cause the said J. D. to have the possession of the said land ia the said writ specified with the appurtenances ["and I do further command you or one of you," as in warrant m fi. fa. i;c. if the writs be imited'] : And forthwith certify the same to me. Given under the seal of my office this day of A.D. 18—. Sheriff. In the execution of this writ, the sheriff is not bound to know, ex officio, nor to seek the land, and since the writ does not describe either the quantity or locality with minute certainty, the plaintiff or some one on his behalf must go and point it out ; if not, the sheriff not only may, but ought to return the fact that no one came on the part of the plaintiff to show the premises to him.' It is usual to call upon the plaintiff for an indemnity before the execu- tion of the writ ; if refused, the sheriff must act upon the above rule, viz., deliver possession of what is shown to him by the plaintiff or by some one on his behalf ; if given, he must deliver what the plaintiff requires.' If a stranger's land be shown to him, by force whereof he enter, he is no trespasser.' How exe- He must execute the writ in a reasonable time f and if after it is delivered to him he has an opportunity to execute it, and refuses or neglects to do so, he is liable to an action.* He must, i£ need be, raise the posse comitatus ; a return, therefore, that he could not deliver possession by reason of -resistance, is a bad return.' Doors may be broken open by the officer after signifying the cause of his coming and making re- quest that they may be opened; for otherwise the writ could not be executed." ' Dalt. ch. 63. * Mason v. Paynter, 1 Q. B. ^ Eun. Eject. 484; Connor 974. V. West, 6 Burr. 2672. « Dalt. 256, 257; Gilb. 19; ' Dalt. ch. 63. Run. Eject. 485. cuted. Digitized by Microsoft® WEITS OF POSBESSION AlTD ASSISTANCE. 241 When land is recovered, the sheriff puts the claimant into possession by a twig, hough, clod, or the Kke. When a house is recovered, possession is delivered hy the ring of the door ; or, when the door is open, by parol, as by bidding him. enter and take possession. If common appendant or appurtenant be recovered, he g^ves possession of the land to ■which it is appendant or appurtenant, and possession of the common follows. If a highway be recovered, he delivers possession of the land, subject to the public easement or right of way. If a fishery^ he delivers possession of the land covered with water. If a mine, he enters it, and by a piece of ore, or stone, or the Kke, delivers possession of it. If an alder cave, by a twig, or the like. If a cattle-gate, by a clod, or the like. In short, that which the sheriff takes, as a symbol of possession, ought, in strictness, in each case, to be part and parcel of the thing itself. It is, in law, pars pro toto. If the claimant recovers (say) 100 out of a plot of ground of 200 acres, the sheriff delivers one or more, in the name of the whole, without dividing it by metes and bounds.' If a certain number of acres are to be de- livered, he must deliver possession of that number of acres, according to the estimation in the county where the lands lie.^ If several tenements mentioned in the writ be in the possession of several tenants, the officer must give possession of each separately : of one, in the name of all, is not sufficient. But if all be in the possession of the same tenant, it is said to be suf- ficient to deliver possession of one in the name of all.' The safest way is to remove the tenant of each house, and to deliver possession separately. As the ' Via. Abr. Exec. (H.); ' Fhyd v, Bethill, 1 EoU. Palm. 289; Kun. Eject. 486. Eep. 420; 1 Roll. Abr. 886. .3 lb. ; Eun. Eject. 486. A. K Digitized by Microsoft® 243 •WTIITS OE EXECUTION. end of tlie -writ is to give the party full and actual possession, lie must remove all persons, and their goods, from off the premises, otherwise the execution is not complete ;^ to save this expense and inconveni- ence, it is however more usual for the tenants in possession to attorn to the plaintiff. The execution is not complete untU the bailiffs are withdrawn, and Distnrbance. possession completely given.^ If a stranger turn the plaintiff out of possession, after execution fully exe- cuted, the plaintiff is put to his new action, or to an indictment for the forcible entry. If the same de- fendant disturb him, he cannot have another writ of possession, whether the sheriff has returned the former or not.' When a sheriff's officer, acting under a writ of possession is dispossessed before he deliver possession, it must appear that the persons dispos- sessing are acting in concert with the defendant before a fresh writ can issue.* If the officer is thus disturbed in the execution of the process of the Court, it is a contempt for which an attachment may issue, whether the person disturbing him be the defendant or a stranger ; and it seems that an attachment may also issue where the defendant disturbs the plaintifiE immediately after the execution is complete.^ If the sheriff deliver possession of more than he ought, the Court will, on a summary application, order it to be Crops. restored.* Where crops were standing on the land, when possession was delivered, the Court refused to compel the lessor of the plaintiff to pay over to the 1 Lutw. I486; Upton v. Dowl., N. S. 407. Wells, \ Leon. 145; Tidd's * Thompson v. Mirehome, 2 Pr. 1081, 8th edit. Dowl. 200; Zloj/d v. Hoe, ' 6 Mod. 115; 1 Leon. 145; snpra. Palm. 289 ; Doe d. Pitcher v. ^ Kingsdale v. Mann, 6 Mod. Moe, 9 Dowl. 971. 27. 3 Fate V. Roe, 1 Taimt. 65 ; « Roe v. Dawson, 3 Wils. 49; .see Doe d. Lloyd v. Roe, 1 Eun. Eject. 485. Digitized by Microsoft® "WniTS OP POSSESSION AND ASSISTANCE. 243 late tenant (defendant) tlie value of tlie crops, aiter deducting the rent.^ Strictly speaking, the sheriff should make a return Eetums. as under an elegit ; but it is not essential to the validity of the execution, as it is under that writ; and it is not usual therefore to return the -writ unless called on to do so. On the execution of this writ the sheriff is entitled Poundage, to the same poundage as under an elegit, that is to say, one shilling in the pound on the yearly value of the lands delivered where the whole yearly value does not exceed lOOZ., and sixpence in the pound for every pound above that sum.- Bond of Indemnity.^ Know all men by these presents that we G-. A. of Gr. P. of and C. W. of in tlie 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 Gr. M. Bart, or to his certain attorney executors administrators or assigns for which payment to be weU 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 &e. Whereas on the day of a.d. 18 — a writ of hab. fac. poss. was delivered to the said Sir Gr. M. Bart, at the suit of the above-named Gr. A. ; and whereas also the above-named Gr. A. hath applied to- and requested the said high sheriff to deliver to him under the said writ certain tenements in his baili- wick that is to say which he hath consented to do upon • being indemnified for so doing. Now the condition of the above written obligation is such that if the above bounden Gr. 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 Sir Gr. M. Bart, from all costs and expenses to be incurred or to which he may become liable by reason of the premises then that the above written obliga- tion to be void otherwise to stand and remain in full force vigour and effect. Gr. A. (i.s.) G. P. L.a.J Signed sealed and delivered ) C. W. (l.s.) in the presence of me ) ' Upton V. Witherwich, 3 ^ Z Geo. 1, c. 15, s. 16; Bing. 11. Nash v. AUen, i Q. B. 784. 3 See ante, p. 210. Digitize %y Microsoft® 244 WRITS or EXECUTION. 'Rt'TTTTINS Bt virtue of this writ to me directed on the — - day of _ iTthe year within written I caused the within-named A BVhaTe possession of with the appurtenances as ^t£n I am commanded. Also I have caused to be levied of tteXds^d chattels of the said C. D. the sum of £ which money I have ready as within I am «™f^^:^^^ ^^ Or And the within-named C. D. hath not any goods or chattels in my bailiwick whereof I can cause to be made the sum of £ -vrithin mentioned or any part thereof. The answer oi . Or, By virtue of tHs writ to me directed I have been always ready and willing to deUver the possession of the premises- within mentioned to the within-named A. B. with the appur- tenances as I am within commanded; hut no one came to me, on the part of the said A. B. to show the same premises to me or any part thereof or to receive the possession thereof or any part thereof from me. The answer of ■ . Or, By virtue of this writ to me directed I have been always ready and willing to deliver possession of the premises within mentioned to the withia-named A. B. with the appurtenances as within I am commanded and did on the day of in the year within written offer to deliver them to him but he refused to receive the same. The answer of . Section XI. WRIT OF DELIVERT. A judgment for tlie recovery of any property other 'than land or money may be enforced by a -writ of delivery. On the trial of an action for goods sold, the jury find by their verdict what are the goods in respect of which the plaintifE is entitled to recover, and which remain undelivered ; what (if any) is the sum the plaintifE would have been liable to pay for the delivery thereof ; what damages (if any) the plaiatifE would have sustained if the goods should be delivered under the execution, and what damages if not so de- livered. Thereupon the Court or a judge has power, ' See RoU. Abr. Return (I.) ; or other writs are as in other Dalt. ch. 63; Ret. Br. 46, cases. 352. The returns to the fi. fa. Digitized by Microsofi® ■WnlT OF DELIVERY. 245 if judgment be given for the plaintiff, to order the writ to issue for the delivery of the goods on payment of such sum (if any) as may have been found to be payable by the plaintiff, without giving the defen- dant the option of retaining them upon paying the value or damages assessed. Similarly, in an action for detention of goods, the jury having assessed their value, the writ may issue.' If any of the goods cannot be found, the sheriff must, unless restrained by a judge's order, proceed to execute the further command of the writ, which is, at the option of the plaintiff, either to distrain the defendant by aU his lands and chattels in the baiKwick, until he render to the plaintiff the goods mentioned in the writ, or else to cause to be made of the defendant'g goods and chattels, as in a fi. fa., the assessed value or damages, or a due proportion thereof. The plaintiff may, also, either by the same or a separate writ, issue execution for the damages, costs and interest in the action. And he has now the option of enforc- ing the judgment by writ of attachment or seques- tration instead of the writ of delivery.^ The theory of the judgment in an action of detinue Effect o( is a kind of involuntary sale of the plaintiff's goods to the defendant at the value assessed at the trial. But if the plaintiff does not get that value on issuing exe- cution, then he does not lose his property in the goods themselves. The judgment alone does not divest it, nor does the execution unless there is satisfaction of the judgment; so that if the sale of the goods seized does not cover the expenses, or if a prior act of bank- ruptcy nullifies the execution, the property in the goods remains in the plaintiff.' 1 See Chilton v. Charrimgton, Act, Ord. 42, r. i, and Ord. 49. 15 C. B. 730. ' Srinsmead v. Harrison, L. 2 17& 18 Vict. c. 125, 8. 78; E., 7 C. P. bi1;.Bx parte 19 & 20 Vict. c. 97, s. 2; Jud. Drake, 5 Ch. D. 860. Digitized by Microsoft® execution. ,246 "WEITS 03? EXECUnOlf. What. Cro"wii debts. Kinds of extent. SECTIOlf xn. EXTENT. An extent, in the sense in wHcli it is here used, is a prerogative execution, and entirely appropriated to the crown. It is a common law execution, modified and restricted by the 33 Hen. 8, c. 39.^ The body, lands, and goods of a debtor or ac- countant to the king were liable at common law. But, by the 33 Hen. 8, c. 39, a new right seems to have been given to the crown, viz. the right of taking all at once in execution.'* The crown debts are either of record or not of record. There can be no debt of the crown upon which process can issue except it be of record.'' Such debts are recoverable by scire facias, or, by filing an information on the record itself,* but when there is danger of the debt being lost by delay, through the insolvency of the debtor or otherwise, a writ of extent may issue. The writ of extent is of two kinds, viz. in chief, and in aid. An extent in chief is an adverse pro- ceeding by the crown against a crown debtor, or against the debtor of a crown debtor. An extent in aid is when the extent is issued at the instance of a crown debtor against his debtor, to aid his payment of the crown debt."" There are also extents of the second and third degree." The term immediate ex- tent means an extent which issues without a scire facias.'' The writ is called an extent or extendi facias ' See Giks v. Grover, 9 BiQg. 248. . ' Giles T. Grover, supra. ' Seff. V. litjle, 9 M. & W. 227. * Att.-Gm. V. Seicell, i M. & "W. 77. ^ Extents in aid are regu- lated by 57 Geo. 3, c. 117; but it does not apply to an extent in chief; Sex v. Peel, 11 Price, 772. When it may be resorted to, when not, see R. V. Bingham, 2 C. & J. 130. " S. V. Shackle, U Price, 772; Gilb. Exch. 177; Hwin's case, Parker, 259. 'West, 18; Gilb. Exch. 168. Digitized by Microsoft® EXTENT. 247 because the sherifE is to cause the lands, &c. to be appraised, to their fidl extended value, that it may he fcaown how soon the debt will be satisfied. The writ formerly issued out of the equity side of Whence the Exchequer, upon the fiat of the Chancellor of the Exchequer, or that of a baron, which was the com- mencement of the Queen's suit or award of execution.^ It is now issued by the Queen's Remembrancer out of the Exchequer Division of the High Court of Justice.^ It may issue in term or in vacation. It is tested on the day it issues, is signed by the Queen's Eemembrancer, sealed with the Exchequer seal, and made returnable on a day certain.' By a rule of the Court of Exchequer dated 22nd June, 1822, "It is Affidavit of ordered, that from henceforth no fiat for an extent ™^ in aid shall be granted, unless the party applying for the same, or some person or persons on his behalf, shall make affidavit that unless the process of extent for the debt due to him from his debtor be forthwith issued, the debt due to the crown from the party apply- ing' will be in danger of being lost to the crown."* Upon the issuing of every extent in aid, the amount of debt due or claimed to be due to her Majesty must be stated and specified in the fiat ; and if the debt foimd due to the crown debtor equals or exceeds that amount, such amount is to be indorsed upon the writ as the sum to be levied by the sherifE. And if the debt found due to the crown debtor is of less amount than the sum specified in the fiat, the amount so found due is the sum to be indorsed and levied. As to any overplus arising from the sale of lands, &c. SuitjIus. it is provided by the 57 Geo. 3, c. 117, that such overplus shaU. be paid into the Court of Exchequer, 1 West, 58. P. C. 383; B. v. Hmtm, 2 Ex. 2 5 & 6 Vict. c. 86, s. 2. 216 ; 5 & 6 Vict. c. 86, s. 8. ' Sex v. Maberley, 2 Dowl. * 2 Wms. Saund. 7,0 e, n. (*) . Digitized by Microsoft® ^48 •WlllTS OF BXECUIUOJN. together with the amount indorsed upon the writ; and the Court will, upon sununary application, make such order for the return, disposal, or distribution of it, or any part of it, as may appear proper. The intent of this branch of the statute was to prevent, in future, the practice of issuing extents in aid for recovering larger sums than were due to the crown by the debtors on whose behalf such extents were When not to issued. Sect. 4 prevents, in future, the issuing of te sued out. ^^j^^^^ ^^ ^-^ ^j^ ^j^g application of certain bond and simple contract debtors to the crown. But there is a saving clause as to simple contract debtors becoming so by the collection or receipt of any money arising from the revenue of the crown. Sect. 5 enacts, that no extent in aid shall issue on bonds as surety for insurance companies. And, lastly, the act provides for the discharge of persons imprisoned under the writ of capias in any extent in aid, upon giving the proper notice and in other respects complying with the provisions of the statute. Must be a In Order to issue an extent, as already stated, the corf.°* '" debt must be on the records of the Court. The mode of issuing it is this : — an aflS.davit is made stating two things, namely, the debt and the danger of its being lost without some more speedy and efficacious process.' If no affidavit of danger can be made, the proceeding is by scire facias. A commission of in- quiry first of all issues to find the debt. This is an ex parte proceeding. It is a mere form to put the debt upon record in order to authorize the issuing of the process.'* The inquisition is taken before a jury, but no viva voce evidence of the debt is required. The jury may find the fact of a debt being due to the crown on the sole evidence of an affidavit that ' West, 51, and App. • See S. v. ColUngridge, 3 Price, 280. Digitized by Microsoft® EXTEIfT. 249 the debt is due. This, indeed, is the usual evidenced No notice is given to the debtor of the execution of this commission. Nor could he, it seems, attend and dispute the claim. The proper time for doing so is when the extent issues and the inquisition is taken before the sheriff and the jury. When the debt is thus found of record, the extent issues upon the same affidavit and a judge's fiat. In one case it seems to have been issued on an inquisition and fiat of eight years' standing. Extents may issue into different counties at the same time. And before or after the return of the first others may issue with the same teste as the first. The writ does not abate by the death of the debtor.^ The extent in chief commands the sheriff to enter liberties, if need be, to take the body; to find by inquisition of twelve men, what lands and tenements, with their yearly value, the debtor had in the sheriff's bailiwick on the day he first became the Queen's debtor, or at any time since; and also what lands and tenements, with their yearly values, he had in the bailiwick at the time of issuing the writ ; also, to find, by like inquisition, what goods and chattels, and of what sort and price ; his debts, credits, spe- cialties, and sums of money, in his own right, or any one in trust for him ; that he extend and appraise the same, and seize them into his hands ; with the usual proviso, mentioned in the baron's fiat, as to the goods and chattels, viz., to seize, but not to sell them, until otherwise commanded. Such- are the substan- tial requirements of the writ. To enforce them the sheriff may break open the outer How exe- door of a dwelling-house, if not opened on request, and he may, in obedience to the non omittas clause 1 Reg. V. Rylo, 9 M. & W. 227. * West, 60. Digitized by Microsoft® 350 WRIT3 OP EXECrTIOK. in the -writ, enter a liberty to execute it. On receipt of the writ he issues Ms summons to the defendant and to his debtors, to appear and disclose the nature of their property, debts, &e. ; likewise, to aU other persons, on pain of attachment, who can give the required information. He also summons a jury of .Arrest. twelve men as in other cases.' The capias clause is not usually enforced, although strictly in obedience to the writ the debtor ought to be taken, even where lands and goods are seized sufficient to satisfy the debt. If enforced, he cannot be admitted to bail; for the statute of bail bonds does not extend to the crown. Nor do the Companies Acts or the Debtors Act or Bankruptcy Act bind the crown, and therefore the writ of extent may be enforced against persons and property otherwise within the protecting clauses of those acts ; for example, a bankrupt may be ar- rested, during his ordinary privilege,' and if arrested after discharge under the Bankrupt Act, he will not, on that account, be released from custody.' "Where the sheriff had, over and above the person of the debtor, seized property more than sufficient to cover the demand, he was discharged;* and where a party in custody under this writ was allowed voluntarily to 'escape, but was retaken and restored into the same custody and under the same writ, it was held that he was rightly in custody and was not entitled to his discharge ; the foundation of these decisions being that the crown is not affected by the laches of its own officers.* Whatmiy What is meant by lands tenements goods and chattels needs no explanation. But a word or two as ' West, 303. * Men v. JBnnear, 3 Price, ' ^x parte Temple, 2 Eose, 536. 22. 5 Seff. V. Kenton, 2 Exoh. 3 Sex V. iSetm, 8 Price, 671 ; 216. Beff. y. Bennison, 1 D. & L. 613. Digitized by Microsoft® EXTENT. 251 to the debts. They comprehend money in the defend- ant's possession, • and dehts by simple contract or by specialty, which, although not due, the sheriff must seize.' Any one is in privity with the crown who kuows that the money which he receives is the money of the crown.^ It. seems, that on an extent in chief, the crown may seize debts found to be due to its debtor ad infinitum ; but, on an ■ extent in aid, not beyond the third degree, counting the crown debtor as one of the degrees.^ The crown cannot avoid, an equit- able mortgage;* or the Hen of a factor;^ or of a wharfinger ;* or a bona fide assignment in trust for creditors ;' a mortgage, or pledge f or any other similar assignment, or charge^ upon the goods before the process of the crown attaches. But they may be taken, subject to such liabilities as the debtor has created. So things in custodia legis by distress," or under a fieri facias,'' before sale, may be taken under this writ ; for no inception of an execution can bar the crown. The sheriff has no power, by virtue of this writ, sheriff can to levy or receive the debts found on the inqui^tion. no/seuf" ' He is merely to seize them, and his seizure is merely nominal. The finding, through the medium of the jury, constitutes the seizure in law. The seizure is the inception of the execution, delivery under a liberate being ttie completion, analogous to the sale under a fi. fa.'" The sheriff must, as to witnesses, questions, &c., inquisitioii. ' West, 172; 1 & 2 Vict. « H. v. Htimphretj, 1 M'Cl. c. 110. & T. 173. ^ Jieg. Y. Adams, 2 Exch. ' Giles v. Grover, 9 Bing. 299; EexY. Ward, ib. 301, n. 139; West, 115. ' West, 303; sed vide Jf. v. ^ Sex v. Cotton, Parker, " ■■ ? 32 & 33 Viet. c. 62, s. 5. Digitized by Microsoft® OEDEES OF COMMITTAl. 263 the day of the execution hereof you immediately make kaown to me so that I may -within two days after the arrest of the said A. B. indorse on the said order the true date of such arrest. Hereof fail not as you will answer at your peril. Griveu under the seal of my ojffice this day of . The order remains in force as long, at least, as the judgment or order on which it is founded, though upon this point the rules are silent.^ The sheriff or officer to whom the order is directed must, -within t-wo days after the arrest, indorse on the order the true date of such arrest, and return it to the person named in the indorsement as having obtained the order. The order is executed in the same manner as the •writ of capias ad satisfaciendum,- and the same fees are payable on it ; but imprisonment -under this order does not operate as a satisfaction or extinguishment of any debt, or demandor cause of action, or deprive any person of any other rights against the property of the debtor,-^ except that an order of committal may not be made more than once for the same debt; atthough -where an order is made for payment of a debt by instalments, each instalment becomes a separate debt for default in payment of -which a separate order of committal may be made.* In the Chancery Division, after imprisonment for non-pay- ment of the first instalment in such a case, the, payment of subsequent instalments may be enforced by attachment, as in the case of disobedience to an order directing the performance of some act other than the payment of money.*^ 1 SermitageY. Kilpin, L. E., * Evans Y. Wills, 1 C. P. D.- 9 Ex. 205. 229. 2 Ante, p. 226. ^ Gen. Ord., Jan. 1870, ^ Sect. 5. r. 18, ante, p. 172. Digitized by Microsoft® 264 EXECTJTION OF OTHEK WBITS.. Upon payment of tlie sums mentioned in tlie order, and tlie sheriff's fees, the debtor is entitled to a certifi- cate to that effect signed by the solicitor in the cause of the creditor, or by the creditor himself, and attested by a solicitor or by a justice of the peace. He must then be discharged out of custody. Form of Certificate. I certify that A. B. now in the gaol of upon an order of the honorable Mr. Justice at the suit of C. D. for non-payment of a debt of £ has satisfied the said debt together -with the costs mentioned in the said order and sheriff's fees. Dated &c. Sectioit rV. DE VENTRE ESTSPICIENDO. This writ used to be granted out of Chancery com- manding the sheriff that he cause the party to be viewed by twelve knights, and searched by twelve women in the presence of the twelve knights, and ad traotandum per ubera et ventrem inspiciendum whether she was with child, and to certify the same unto the common bench. And if she were with child, to certify for how long time, in their judgments, et quando sit paritura. The writ is now practically obsolete, but the Court stOl has the power to make an order to the like effect, and to direct that some of the women be present to view the birth, in order to guard against fraud.' ' See Willoiighiy' s case, Cio. and TheaJcer's case, Cro. Jac. E. 656; Dalt. o. 4, s. 2, app., 686. Digitized by Microsoft® VENIRE. 265 Section V. VENIEE. Wliere an indietment is removed by certiorari into Venire the Queen's Bencli Division, and the defendant is not in custody, as, for instance, where the indictment is against the inhabitants of a parish or county, or where the defendant has been held to bail in the inferior Court, he may be compelled to appear by a ■writ of venire facias, directed to the sheriff. This writ commands the sheriff to, cause the de- fendant to come into Court to answer the charge, and is executed by the service of a summons on the persons named in it. Pour defendants may be included in one writ. If the sheriff returns to the venire that he has Distringas, summoned the defendant, and the defendant neglects to appear within four days after such return, a dis- tringas may be sued out, upon which the sheriff levies 40«. upon the goods of the defendant. If the defendant neglects to appear within foiu* Ca. resp. days after the return of the distringas, or if the sheriff returns either to the venire or distringas that the defendant has not any goods in his bailiwick by which he can be summoned or distrained, upon a cer- tificate from the crown office a warrant may be obtained from a judge for the apprehension of the defendant; or, where it is deemed expedient to proceed to outlawry, a capias ad respondendum may be issued against him. In cases of felony, the capias is issued in the first instance without any venire or distringas.^ 1 Com. Cr. Pr. 129. Digitized by Microsoft® 266 EXECUTION OE OTHEE ■WIEtlTS. In cases of indictments agaiast inhabitants of a parish or county, &c., where a capias would be impracticable, a second distringas with increased issues may be sued out on default of appearance to the first, and so on until they do appear.^ , 1 1 Com. Cr. Pr. 134. Digitized by Microsoft® ( 267 ) CHAPTEE THE SIXTH. SHEEIFFS' FEES AND ACCOUNTS. Section I. SHEEIEES' EEES. By the common law it was the duty of the sheriff to At Common execute all -vrrits without fee or reward; all such fees ^^^' as he is now entitled to were provided by particular statutes. By the Statute of "Westminster I., c. 26, the common law was affirmed by the et ^i-ment "that no sheriff shall take any reward to do his office, but shall be paid of that which they hold of the king, and he that so doth shall yield twice as much, and be pimished at the king's pleasure." The sheriffs eon- seq[uently became backward in executing writs, by reason of the great danger in taking desperate men, as well as in detaining them for fear of escape. Whereupon parliament thought fit to grant them fees in the reign of Elizabeth ; which they have to this day.^ Before the 1 Vict. c. 55, they were ascertained and regulated by the following statutes, namely, on mesne process by the 23 Hen. 6, c. 9 and 32 Geo. 2, c. 28, s. 12 ; on final process agaiast the debtor's goods, by 28 EKz. c. 4 and 43 Geo. 3, c. 46 ; against his lands, by elegit and hab. fac. poss. by 3 Geo. 1, c. 16 and ' 28 EHz. 0. 4; 2 Inst. 176. See p. 200 as to poundage on fi. fa. Digitized by Microsoft® 268 SHEEHTS FEES. 1 Vict. c. 53. Pees to be allowed by taxing officei-. To prevent oi&cers tak- ing fees not allowed or greater fees tlianare allowed ; 8 Geo. 1, c. 25; on extents, crown debts and liberates, by 3 Geo. 1, c. 15 and 8 Geo. 1, c. 25; and as to poundage on ca. sa. by 3 Geo. 1, c. 15, s. 17. The statutes of tbe present reign are 1 Vict. c. 55 (passed to increase and fix the remuneration to be paid to tbe sberiff or Ms officers, according to th.e discretion of the judges), the 5 & 6 Yict. c. 98, s. 31, which took away the right of poundage on a ca. sa., and the Common Law Procedure Act, 1852, which enabled the party entitled to execution to levy the poundage fees and expenses over and above the sum recovered.' By the statute of 1 Vict, c." 55, intituled "An Act for better regulating the fees payable to the sheriffs upon the execution of civil process," cer- tain exemptions from the operation of the statute of Elizabeth were created, and the receipt of cer- tain fees beyond the poundage was legalized.^ It enacts, that it shall be lawful for sheriffs, or their officers, concerned in the execution of process directed to sheriffs, to demand, take and receive such fees, and no more, as shall from time to time be aUowed by any officer of the several Courts of law at Westminster charged with the duty of taxing costs ia such Courts, under the sanction and authority of the judges of the said Courts respectively.' And that any sheriff, officer, or minister acting in the execution of process directed to any sheriff or sheriffs, or engaged or concerned therein, who shall extort, demand, take, accept or receive from any person or persons any fee or fees, gratuity or reward ' 15 & 16 Vict. c. 76, s. 123; and Eeg. Gen. H. T. 16 Vict. ; continued by the Jud. Act, Ord. 42, r. 13. ' See Wrightup v. Gnm- acre, 10 Q. B. 1; Pillcing- ton V. Cooke, 4 D. & L. 355, and Slater v. Sames, 7 M. & "W. 413. 3 Sect. 2. Digitized by Microsoft® sheriffs' fees. 269 not allowed as aforesaid, or greater in amount than as allowed as aforesaid, such sheriff or other his officer or minister, upon complaint thereof made against him to any of the said Courts, and on proof being made thereof upon oath, either by the examina- tion of witnesses viva voce, or on affidavits, or on interrogatories, to the satisfaction of the Court to which the said complaint shall be made, that such sheriff, officer or minister, as the case may be, hath offended therein as aforesaid, then and in such ease every such sheriff, officer or minister, as the ease may be, shall be adjudged guilty of a contempt of such Court, and punished by such Court accordingly ; and and other ' -^ • ^ D ./ J persons from if any person, not being such officer or minister as taking any aforesaid, shall assume or pretend to act as such, and shall extort, demand, take, accept or receive any fee or fees, gratuity or reward under colour or pretext of such office, he shall, on like complaint and proof, be in that respect dealt with by the Court in like manner.^ And that in all cases of summary complaints as Court may , award costs. aforesaid, the Court before which such complaint shall be preferred, may, at its discretion, award the costs ^ of or occasioned by such complaint to be paid by either party to the other ; such costs to be taxed by the master of such Court : provided always, that no such complaint shaU. be entertained unless made before the last day of term next following the act whereof complaint is made.' An.d that the sheriffs of Lancashire and Durham, ^eesto the ' sheiins of and their officers, shall have and be entitled to the Lanoashii-e and Dur- like fees, and no more, as from time to time shall be ham. allowed under the authority of this act to sheriffs 1 Sect. 3. Dowl., K. S. 752. 2 See Curlewis v. Bird, 1 * Sect. 4. Digitized by Microsoft® 270 SIIEEHTS' FEES. upon process issuing from tlie superior Courts at Westminster.^ And by virtue of the jiower tlius granted, the judges, on the 20th day of December, 1837, sanctioned and authorized the following fees for the performance of oiScial duties, to be taken by the sheriffs, under- sheriffs, deputy sheriffs, sheriffs' agents, bailiffs, and others, the officers or ministers of sheriffs in England and Wales. TAELE OP FEES. For every warrant which shall be granted by the sheriff to Ms officer, upon any writ or process : — £ s. d. In London and Middlesex^. . .. .. 2 6 And on crown' and outlawry process, an additional .. .. .. .. ..026 In all other coimties, where the most distant part of the county shall not exceed 100 miles from London Not exceeding 200 miles . . Exceeding 200 miles Where there are several defendants in a writ of capias, and warrants are issued thereon by the under-sheriff against more than one defendant, no more shall be charged in any case for each warrant after the first, than . . . . ..026 ^ Sect. 5. the judges and ordered to be ' Where the -writ is of a enrolled on the 20th Deo., special or imoommon nature, 1837, purporting to be made 6s. 8d. may be allo-wed. pursuant to the statute 1 Viot. 5 By Eeg. Gen. M. T. 10 c. 55, as relates to process at Viot. (November 16, 1846), it the suit of the Crown, be am- was ordered "that so much of niJled;" 9 Q. B. 699. the table of fees signed by Digitized by Microsoft® 5 6 7 SHEEIFFS' FEES. 271 For an arrest in London^ . . In Middlesex, not exceeding a mile from the General Post Office . . Not exceeding seven miles from same place In other counties, not exceeding a mile from officer's residence. . Not exceeding seven miles . . Exceeding seven miles For conveying the defendant to gaol from the place of arrest . . per mile For an undertaking to give a hail-bond . . FOB, A BAIL-BOOT). If the debt shall not exceed £60 Do. 100 Do. ' 150 Do. 300 Do. 400 Do. 500 If it shaU. exceed 500 For receiving money under the statute upon deposit for arrest, and paying the same into Court, if in London or Middlesex . . If in any other county FOR FILESTG THE BAIL-BOND. If the arrest be made in London or Middle- sex . . If in any other county ASSIGNMENT OF BAIL OE OTHEE BOND, If in London or Middlesex. . If in any other county, including postage . . For the return to any "writ of habeas corpus, if one action . . . . . . ..012 £ s. d. 10 6 10 6 1 1 10 6 1 1 1 11 6 1 10 6 10 6 1 1 1 11 6 2 2 3 3 4 4 5 5 6 8 10 2 4 5 7 6 1 See Cooper T. Sill, 6 0. B., N. S. 703. Digitized by Microsoft® £ s. d. 2 6 10 1 1 2 6 272 SHEEHTS' FEES. And for eaoli action after the first . . Por the bailiff to conduct prisoner to gaol per diem And travelling expenses . . per mile Por searching ojGB-ces for detainers^ Bailiff's messenger for that purpose^ To the bailiffs, for executing ■n'arrants on extent, capias utlagatum, levari facias, fieri facias, ca. sa., order of committal,' ne exeat, attachment, elegit, writ of possession, forfeited recognizance, and other like matters, for each, if the dis- tance from the sheriff's office or the bailiff's residence do not exceed five miles If beyond that distance . . per mile On distringas in London . . In Middlesex, not exceeding five m.iles from General Post Oifice Exceeding five miles In other counties, not exceeding five miles from officer's residence . . Exceeding five miles Por each man left in possession, when absolutely necessary,' If boarded . . . . per diem If not boarded . . . . per diem Por every sale by auction,* notwithstanding 1 These are not payable on appraisement ; Phillips v. Lord a levy under a fi. fa., Masters Canterbury, 11 M. & W. 619 ; V. Lowther, 11 0. B. 948. Marshall v. Sieks, 10 Q. B. '^ Ante, p. 263. 16; or for advertizing, 5j-«i7^ - ^ Jlx parte Sims, i Ch. D. waite v. Marriott, 32 L. J., 521 ; 6 ib. 375. Ex. 24. * No fee is payable for an Digitized by Microsoft® 1 1 6 5 5 10 5 10 3 6 5 SHEEIFFS' FEES. 273 the defendant should become bankrupt £ s. d. or insolvent, where the property sold does not produce more than 300Z. 5 per cent. — 400;. 4 per cent. — 500^. 3 per cent., and ■where it exceeds 500/. 2J per cent. Bond of indemnity, besides stamps . . 1 10 Certificate of execution having issued for record • .. .. .. .. ..050 OK" -VVRITS OF INftUIRY. For a deputation . . . . . . ..110 On lodging writ for entering cause, and ■warrant for summoning jury, "which fee shaU. be forfeited in case of countermand of trial 040 ON TEIAL OR INQUISITION. Sheriff for presiding . . . . ..110 Bailiff for sumononing jua-y, and attendance in Court 040 Aad if not held at the office of the under- sheriff. For hire of room, if actually paid, not exceeding . . . . . . . . 10 For travelling expenses of under-sheriff from his office to place where trial or inquisition held . . ' per mUe 10 To the bailiff, from his residence per mUe 6 [The travelling expenses of the under-sheriff from his office, and of the bailiff from his residence, to the place where the trial or inquisition is held, are to be apportioned rateably to the parties, if more than one trial or inquisition be held at the same time and place.] A. T Digitized by Microsoft® 274 SHEEHTS' FEES. d. In all cases in which it shall appear to the master that a saving of expense has accrued to the parties by reason of a writ of trial having been executed by deputation, the fee for such deputation shall be allowed. On writs of extent, elegit, capias utlagatum, and others of the like nature ; for sum- moning the jury, use of room, presiding at the inc[uisition, &e. . . . . .,220 Jury! 12 Por travellLng expenses of under-sheriff from his office to the place of inquisition j)er mile 10 For drawing and engrossing the inquisition perfolio 16 ITor a summons for the attendance of a witness .. ,. .. .. ..050 OTHER CASES. [These come under the head of Eeplevin in the original Table.] !Por each summons on a writ of sci. fa., or for the service of writ of capias where no arrest .. .. .. .. ..050 And mileage . . . . . . ..010 Por recording each demand or proclamation under writs of outlawry . . . . ..020 !Por bailiff for making each demand or pro- clamation on writs of outlawry in London or Middlesex . . . . . . ..026 In other counties . . . . ..050 And travelling expenses, if the distance shall exceed five nules, then for every mile beyond that distance . . ..006 ' On writ of iaquiry only 4s. is allowed, supra. Digitized by Microsoft® SHEEIFI'S' FEES. 275 £ s. d. Tor any supersedeas, writ of error, order, liberate, or discharge to any writ or pro- cess, or for the release of any defendant in custody' (unless in the prison of the county) or of goods taken in execution- 4 6 Por the return of any writ or process, and filing same, exclusive of the fee paid on filing ..010 JTTRT PEOCESS. The fees given under this head in the table have all been repealed by subsequent enactments. The Common Law Procedure Act, 1852,^ abolished the writs of venire, distringas, and habeas corpora jura- torum, and altered the mode of summoning special juries by requiring one panel to be made for the trial of aU special jmy causes at the assizes;* and simi- larly, with respect to common juries at assizes and at the sittings in London and Middlesex, it required a printed panel to be prepared by the sheriff. By the Juries Act, 1870,^ London and Middlesex were put on the same footing as the rest with regard to special juries also. Now, therefore, the only remuneration of the sheriff for the labour of summoning juries is the amount which may be allowed him by the Trea- sury on his bill of cravings. This may include the costs of summoning jurors by post, so far as they do . not exceed the sum allowed on that account to the predecessor of the sheriff in office in any one year 1 See Taylor v. Warrington, ^\b &16 Vict. c. 76, s. 104. 22 L. J., Q. B. 99. * See' Bennett v. Thompson, 2 See Masters v. Zowtlier, 2 Jur., N. S. 613. 21 L. J., C. P. 130; Soe v. » 33 & 34 Vict. o. 77, s. 16. Hammond, 2 C. P. D. 300. t2 Digitized by Microsoft® 276 sheriffs' fees. between August, 1859, and August, 1862.' Tlie sheriff is also empowered to make a charge of one shilling on delivering a copy of the printed panel to any person requiring it. By the Eeg. Gen., Trin. Term, 1864, however, it is ordered that sheriffs or their officers may take the following fees for attending in Court upon the trial: — £ s. d. Of every common jury cause or issue, from the party who entered the same for trial 10 6 Of every cause or issue tried by a special jury summoned by precept under the 108th section of the Common Law Pro- cedure Act, 1852, from the party at whose instance the same was so tried . . 110 View. For attending a view, it is provided by Eule 49 of Hilary Term, 1853, as follows : — Upon any ap- plication for a view there shall be an affidavit stating the place at which the view is to be made, and the distance thereof from the office of the under-sheriff, and the sum to be deposited in the hands of the under-sheriff shall be lOZ. in case of a common jury and 16Z. in case of a special jury if such distance do not exceed five miles, and 15/. in case of a common jury and- 211. in case of a special jury if it be above five miles. And if such sum shall be more than sufficient to pay the ex- penses of the view, the surplus shall forthwith be returned to the attorney of the party who obtained the view ; and if such sum shall not be sufficient to pay such expenses, the deficiency shall forthwith be paid by such attorney to the under-sheriff. And the under-sheriff shall pay and account for the ' 25&26Viot.c. 107,8. 13. Digitized by Microsoft® SHEEirrs' FEES. 277 money so deposited according to tlie scale follow- ing, that is to say : — £ s. d. Por travelling expenses to the under-slieriff , shewers and Jurymen, expenses actually paid, if reasonable. Fee to the under-sheriff when the distance does not exceed five miles from his oiEce 110 Where such distance exceeds five miles . . 2 2 And in case he shall be necessarily absent more than one day, then for each day after the first a further fee of .... 1 1 Fee to each of the shewers, the same as the under-sheriff, calculating the distance from their respective places of abode. Fee to each common juryman, per diem . . 5 Fee to each special juryman, per diem . . 110 Allowance for refreshment to the under- sheriff, shewers and jurymen, whether common or special, each, per diem . . 5 To the bailiff, for smnmoning each jury- man whose residence is not more than five miles distant from the office of the under-sheriff , 2 6 And for each whose residence does exceed five mUes of such distance , 5 For any duty not herein provided for, such sum as one of the Masters of the Courts of Queen's Bench or Exchequer, or one of the Prothonotaries of the Court of Common Pleas, may upon special ap- plication allow. The fees due to the sheriff on execution of process How re-' are payable by the party suing it out, not by the judgment debtor. The sheriff has no right to levy Digitized by Microsoft® 278 SHEBniTS' FEES; them apart from the power of the judgmeiit creditor to enforce payment of the sum recovered. The creditor, however, if entitled to levy the sum re- covered, may levy the fees and expenses of execution over and above such sum,' and then the sheriff is entitled to deduct them from the amount of the levy, whether or not there are instructions to that effect upon the writ.^ When, therefore, the right to levy the debt is barred, the fees cease to be leviable also, and the sheriff cannot proceed to enforce the payment of them by a sale of the debtor's goods ; or at all events not without instructions from the creditor to do so.' ' Either the sheriff or the bailiff may sue for them ; and it seems that the practice is for the soKcitor acting in the matter to be treated as the person pri- marily liable, in the absence of circumstances esta- blishing a privity between the client and the sheriff's officer.* The sheriff cannot refuse to execute the writ imtU his fees are paid ; ^ and it seems that any bond con- ditioned to pay him his fees," or any promise to pay him at a higher rate, would be void.' Coroners. In cases where the sheriff is a party, or otherwise disqualified to act, and in various other cases, writs are frequently directed to and executed by the coroner in his stead, and the coroner is then entitled to the 1 Jud. Act, 1875, Ord. 42, Jones, 10 Ex. 655; but see ^- }^- Maybei-y v. Maiisffid, 9 Q. B. - Curtis V. Maijnc, 2 Dowl., 754, and Seal v. Rudson, i D. N. S. 37. & L. 760. 299 Sneary v. Ahdtj, 1 Ex. D. "s Heseot's case, I Sali. 330. . ' „ See Bopman v. Sarber, Stra. Foster v. Blakehek, 5 B. & 814; Whiter. Smgh, ib. 1262. C. 328; Walhank v. Quarter- « Raym. 62; Hutt 52 man, 3 0. B. 94; Maile v. ' Uridge r. Cane, Cm. Jao. Mann, 2 Ex. 608; Bretcet- v. 103.. Digitized by Microsoft® SnERIITs' ACCOUNTS. 279 same poundage, fees and other compensation, and to the same remedies for their recovery as the sheriff would have been entitled to.' Section' II. SHERIFFS' ACCOUNTS. Before the 3 & 4 WiU. 4, c. 99, became law, the Fonner practice. sheriff used to act as treasurer of the county,'' and it was his duty to collect Crown rents and other pay- ments. A day used to be prefixed for him to account, and two other days were also appointed, called "prof- fers," because he then proffered the Crown rents (usually after the utas of Easter and Michaelmas). When the day of prefi:x;ion arrived, he was put to account on the different processes he had received from the Exchequer, the sums received by him were "totted," and he was "apposed" before the barons xipon the great roll, before the cursitor baron on the summons of the pipe, and before the foreign apposer on the summons of the green wax. His accounts were then passed before the clerk of the jjipe, and his quietus and discharge made out.. By the above Act, however, all these complicated Audit, forms were abolished, and it was provided that the accounts of all sheriffs of counties, cities and towns within England^ should be examined and audited by the commissioners appointed for auditing public accounts, under 25 Geo. 3, c. 52, 46 Geo. 3, c. 141, 1 7 & 8 Vict.- 0. 92, s. 22. ehei-iff of "Westmoreland is rc- * Ante, p. 147. quired to transmit his account ^ Tlie comities of Chester, yearly within two months Lancaster and Durham are after the 1st of January in excepted in the Act, but are each year. now treated like the rest. The Digitized by Microsoft® 280 SHEEHTS' ACCOTJITTS. and 1 & 2 Geo. 4, c. 121. Sheriffs going out of office ' (except those of the three counties above named) within two calendar months next after the expiration of their office, or, in case of death, the under-sheriff, within the same time, must transmit to these commis- sioners a just and true account under his hand, of all sums received by him to or for the use of her Majesty, and of all sums paid or claimed by him or on her behalf (except such sums as are or have been usually inserted and allowed in the bill of cravings), with all such particulars as shall be needful to explain the same. Tees. The Act also abolished aU fees on obtaining patents and passing accounts, which under the former practice were considerable. But this statute, so far as it requires sheriffs' accounts to be audited by commissioners of audit, is repealed by the 22 & 23Tict. c. 21, which enacts, that such accounts shall be examined and audited by such persons and in such manner as the commissioners of her Majesty's treasury may, from time to time, by warrant under their hands direct. And by such war- rant they may make all such provisions in relation to the transmission, examination and audit of such accounts, and for ascertaining and determining the balances due from and the discharge of the persons accounting, as may seem proper, subject to such other provisions as may be made by the warrant (which is to be laid before parliament).' Sheriffs are to transmit their accounts to the commissioners of her Majesty's treasury.^ Oatij. In case it shall be necessary for any sheriff or under-sheriff to make oath or affidavit to the account so transmitted, or to anything relating thereto,' except 1 Sect. 28. » Sect. 29. Digitized by Microsoft® claim. SHEKirrs' ACCOrNTS. 281 •when they require his personal examination, such oath or affidavit may be made before any of the judges of the superior courts at Westminster, a commissioner, master extraordinary in chancery,' or before any justice of the peace. The sherijQE's claim, or "biU of cravings," is now. Sheriff's "within two months after the expiration of his ofiice, preferred to the lord high treasurer, or to the com- missioners of the treasury, who may grant a warrant for the allowance of the same in the sheriff's account, or for the payment of such sum in respect thereof as they shall think reasonable.. The lords of the treasury having issued a warrant under the 22 & 23 Vict. c. 21, s. 28, and such warrant having received the sanction of both houses of parlia- ment, its provisions as to the transmission, examination and audit of the accounts must be strictly pursued. The following is a copy of a fine account : — A just and true account of all sums received by , sheriff of the county of , from the day of , 18 — , to the day of, 18 — , to or for the use of her Majesty, and containing the names and residences of all persons incurring- fines, issues, amerciaments, or forfeited recognizances, sum or sums of money, which the said sheriff, or any bailiff or other officer of the said sheriff has been authorized or required to levy by virtue of any writ or writs issued out of the Exchequer Division of the High Coiirt of Justice for the Queen (first fruits and tenths excepted), or by the clerks of assize, or by the clerk of the peace for the said county, or by any town clerk of any town within the said county, and to him the said sheriff directed during his sheriffalty for levying fines, issues, amerciaments, or recognizances by virtue of any writ or writs delivered over to him by any former sheriff, with the causes of non-payment or . discharges, and by whom (whether by warrant of the lords of the treasury, order of the Exchequer Division of the High Court of Justice, Court of Quarter Sessions, or Queen's sign mtoual, or otherwise) in case any fine, issue, amerciament, or forfeited recognizance shall not have been paid or shall have been dis- charged after payment. ' Now called "Commissioners in Chancery," 16 & 17 Vict, c. 78, o. 1. Digitized by Microsoft® 282 SHEEIFrS ACqOUITTS. Also, an account of all the goods and chattels of any person or persons outlawed, or any waif, cstray, treasure trove, casualty, or other profit of whatsoever nature, which have come to the hands or knowledge of the said sheriff, his under-sheriff, or any other person, his hailiff, oificer or minister, or any or either of them. Names and Eesi- dences of Parties, and Nature of Process. Writ issijed by A. B., clerk of as- size [or, clerk of the peace, as the case may iel J. H. of K. L. of M.N. of &o. "Waifs, estrays, &c. &c. Gross Amount of each Fine £ s. 10 1 5 15 Amount levied or received of eacli Kne &c. £ B. d. 15 Amount of eacli Kne, &c. not levied or received Amount of eaelL Fine, &c. dis- cliarged. £ s. d. 10 £ s. d. 15 Observations. 'By Court of Quar- ter Ses- sions [or, royal warrant, as the case may ic]. State of Account of Sir E. S., Bart., late sheriff of W. CTTATIGE. £i s. d. Amount of fines, &c. received £1 5 Amount received for bUl of cravings 168 3 11 Total charge .. .. 169 8 11 DISCHAEGE. Amount of fines, &c. paid to tlie receiver 13 2 Allowed for poundage . . . . 110 Tor bill of cravings as allowed by treasury warrant at the footthereof 168 3 11 Total discharge . . . . 169 8 11 E. S. late sheriff. Digitized by Microsoft® SHEKIFFS' ACCOtJJfTS. 280 The mode of 'making up, transmitting, and passing How pre- tlie account is this : — ^Within two calendar months next after the expiration of office, or death of the high sheriff (as the case may be), blank forms should be obtained from the office of the auditors of sheriffs' accounts, at No. 2, New -Street, Spring Gardens, London ; they should be filled up, signed by the sheriff or under-sheriff, and transmitted, together ■with the bill of cravings (hereinafter explained) to the agent employed to pass the accounts ; or, when filled up and signed, they may be taken to the office of the auditors appointed under the Act, where the account is examined with the quarterly returns re- ceived from the different clerks of the peace and other officers, and forwarded mth the office certificate to the receiver of fines due from the sheriff. On the production of his receipt the auditors recommend to the treasury the amount to bo allowed on the bill of cravings, and, after the allowance thereof by the lords commissioners, an order for payment of the amount is sent to the high sheriff (who can sign the same and pass it through his bankers), or a written request signed by him for payment to his under-sheriff or agent may be sent with the biU of cravings, in which case the payment is made accordingly. After receipt of the allowance, the sheriff's agent can, on personal application at the treasury, obtain the warrant of allowances, which he exchanges at the office of the auditors for the sheriff's quietat. Form of Warrant. We, being two of the Lords Commissioners of her Majesty's Treasury, are pleased to allow the within-mentioned charges in the account of the sheriff of — -, for the year ending . Treasury Chambers. Dated the . Digitized by Microsoft® 284 SHEEIFrs' ACCOUNTS. The accounts of tlie sheriffs of Wales are passed in the principality, and before the auditor.' Neglect to Formerly, if the sheriff did not appear at the day of prefixion, he was deemed an accountant in default, and proceeded against accordingly. The day of pre- fixion was in the nature of a summons for him to appear; and when the four days of grace had passed he was presumed to have the Crown money in his hands, and was proceeded against as an accountant that had been sunamoned, that is, by an attachment, fi. fa., and cap. in manus nomine districtionis against his body, lands and goods. If the two calendar months, or whatever other time the warrant may prescribe, be substituted for the day of prefixion, the same remedies, in case of default, would seem to apply now, and the four days of grace woidd be allowed. "We have already shown when the biU of cravings is made up, when and how transmitted, when and by whom reviewed and allowed. It only remains to be considered what things are usually allowed. This must, of course, depend in a great measure upon cir- cumstances, but the general rule is (and it cannot be defined with greater certainty), that all sums of money reasonably and bona fide paid for the Crown, in and about the execution of the office, constitute its essen- tials and are allowed : such as judge's lodgings, advertisements, execution of felons, and the liie. In Wales there are fijced allowances for aU the usual items. By the 31 & 32 Yict. c. 125, s. 28,= the expenses of receiving the judge on the trial of an election petition 1 11 Geo. i & 1 ■Will. 4, ' Ante, p. 140. c. 70, s. 33. Digitized by Microsoft® SHEEIPFS ACCOTTNTS. 285 and of proYiding a court may be claimed. The costs of publisMng the petition, however, form part of the general costs of the petition, and must he claimed from the parties, if necessary, under a judge's order. Form of Sheriff's Clftim. County of . Claim of M. A., Esq., sheriff for tlie year ending - Allowed. £ s. d. 5 5 2 15 10 Ktting-up courts, and stationery .... Ballotiag-box and Special Jury List Attending persons to read Acts of Parliament Filing appointments (fees by statute) Judge's lodgings Summoning jurors^ Issuing warrants Eieouting do Proclamations {21. each) Advertising assizes (not to exceed 10^.) Refreshment for jury: Eeg. r. , and Meg. v. ■ (not to exceed 12s. for each trial), Spring assizes .... Paid JJtarwood for executing . . The following Special Allowances are made for a Winter Assize : Fitting-up courts, and stationery .... Judge's lodgings Summoning jurors Advertising assizes (not to exceed 51.) Per day. High sheriff's attendance . . £5 5 TJnder-sheriEf's do. ..330 Do. clerk's do. ..110 Javelin men (not to exceed twelve), each, per day . . 5s. or 6s. Two trumpeters ditto Eefreshment for jury: Meg. v. . . £ Claimed. £ s. d. ' The amoimts allowed on the other items must depend on circumstances. ' By the 2o & 26 Vict, u. 107, o. 13, this may include cost of service by post. Digitized by Microsoft® 28B SHEEIFFS' ACCOUNTS. Affidavit. I, A. B. of , gentleman, and late imder-sherifB to M. A., Esq., late sheriff of , make oath and say that the several sums of money above mentioned and charged to he paid were paid and expended by me, and by other the said sheriff's officers and ministers ; and that the services above mentioned as done and for -vvhich the other above-mentioned sums arc craved were done, as I have been informed and verily believe. Sworn, &c. Digitized by Microsoft® ( 287 ) CHAPTEE THE SEVENTH. EEMEDIES AGAINST THE SHERIFF. Section I. BY INDICTMENT. EvEKY malfeasance or culpable non-feasance of an officer of justice, 'with relation to Lis office, is a misdemeanour, and. punishable by fine or imprison- ment, or both. In a great majority of cases, ■where a duty is imposed on the sheriff by statute, a penalty is also fixed for neglect on his part in performing it, the half of which is, in some cases (as, for example, under the 6 Geo. 4, c. 50, s. 46, which imposes a penalty of 50Z. for neglect in summoning juries), given to the person who sues for it. If by common law the sheriff is bound, by virtue of his office, to perform any act, the neglect to perform it is an indictable offence.' An indictment or criminal in- formation does, however, not lie against the sheriff for the acts of his bailiff ; for these ho is answerable civilly only, i. e., he may be fined and amerced or mulcted in damages, but not imprisoned or indicted.'^ On the other hand, for any wrong done by him when acting judicially he cannot be made answerable civilly, but may render himself liable to pumshment by indictment or information.^ ' R. V. Antrohus, 6 C. & P. E. 148. 784. ^ Bicas y. Brougham, I M. 2 LaymcVs case, Latch, 187; & B. '309. See Hawk. P. C. WooclgaU v. Knatchhnll, 2 T. II. oo. 25 & 26. Digitized by Microsoft® 288 BESIEDIES AGAINST THE SHERIEF. Proceedings under qui tarn information are noticed in the following sections. , issued. Section II. BY ATTACHMENT. A more usual remedy against the sheriff for neg- lect of duty is by attachment, the object of which is to make him appear personally before the Court and answer as to the matters in question. Attachment used to be awarded against any officer of the Court by the judges at their discretion on a bare sugges- tion, or on their own knowledge; and is properly grantable in cases of contempts against which all Courts of record may proceed in a summary way. It is now, however, issued only on application made after notice to the party against whom it is sought.' When "It seems clear," says Hawkins,' "from the general reason of the law (which gives all Courts of record a kind of discretionary power over all abuses by their own officers, in the administration or execution of justice, which bring a disgrace on the Courts them- selves, as not taking sufficient care to prevent them), that wherever it shall appear that any such officers have been guilty of any corrupt practice in not serv- ing any writ — as where they refuse to do it unless paid an unreasonable gratuity from the plaintiff — or receive a bribe from the defendant or give biTn notice to remove his person or effects in order to prevent the service of any writ, the Court which awarded it may punish such offences in such manner as shall seem proper, by attachment &c., as well as the Court 1 Jud. Act, Ord. 44, x: 2. ° Hawk. P. C. b. II. oh. 22. Digitized by Microsoft® BY ATTACHilENT. of King's Bencli, wMch has a general superin- tendency over all crimes whatsoever (as the Star Chamber had also formerly), hut commonly leaves offences of this kind, in relation to causes in other Courts, to be punished by such Courts to which they more immediately belong. But if there neither appear to have been any palpable corruption in the case, nor particular obstiaacy, as by disobeying a special rule of the Coiu't in relation to the service of such writ, nor other extraordinary circumstances of -wilful negligence, the judgment whereof is to be left to the discretion of the Court, it seems not to be usual to grant an attachment in such cases, but to leave the party to his ordinary remedy against the officer; which he may have either by serving him with rules to return the writ, &c., or by suing him for the damage sustained by his negligence, or by taking out an alias and pluries, which if the sheriff do not execute, an attachment, directed to the coro- ners, goes against him of course, unless he .give a good excuse for his not having done it. And if the coroners do not execute the writ, the Court will grant an attachment against them .directed to elizors." So, also, it is common practice to grant attachments for escapes,' extortion, "using needless force, violence and terror, in making an arrest, or by breaking open doors where by law it is not justifiable, and there is no plausible excuse for doing it ; or treating the per- sons arrested basely and inhumanly; or keeping them in custody till they consent to pay money for their deliverance; or making an arrest without due autho- rity, as by force of a blank warrant, filled up with the name of a special bailiff by the party himself, or bailiff, without the privity or subsequent agreement ' Arden v. Goodmrc, 11 C. B. 367; R.^. Sheriff of Leicester- shire, 1 L., M. & P. 414. A. Digitized by Microsoft® 289 290' EEMEDIES AGAINST THE SHERIFF. of the sheriff. Sometimes attachments of this kind are denied, in respect of the common use of the prac- tice, which by experience hath been found to be almost necessary in some cases to prevent the defen- dant's having notice of the intended arrest; and therefore, if it shall appear to the Court that there ■was any such reasonable cause for such a proceeding, it will be a great inducement to excuse, if not wholly to dispense with it. . . . It seems also clear, that where any such officer is guilty of any corrupt prac- tice in depriving the party who sues out a writ of that benefit and advantage which he ought to have from the execution of 'it, he is liable to be punished in the manner above mentioned; as if he levy the debt by virtue of an execution, and keep the money in his own hands, and embezzle it ; but unless there appear some gross and palpable corruption in a sheriff neglecting to return a writ which hath been executed by him, or to bring in the body, or the the money, &c. according to his return, the Coui-t will hardly grant an attachment against him imme- diately, but ynR rather proceed against him by rules to return the writ, &c., and if he do not obey them, will increase the amercements upon him till he do, or perhaps grant an attachment for the contempt. And if the sheriff return that he sent the process to the baiHff of a liberty, who hath given him no answer, a non omittas shall be awarded to the sheriff; and if he return that he sent the process to such bailiff, who hath returned a cepi corpus, or such like matter, and the bailiff bring not in the body or money, &c. at the day, by the better opinion, the bailiff shall be amerced, and a writ shall issue to the sheriff, to distrain the bailiff to bring in the bodj% &c. . . ": So if the sheriff allow the debtor to go at large on bail and return cepi, and have not the body Digitized by Microsoft® BY ATTACHMENT. 291 at the day, attacliment and amercement, as formerly, is tlie process. And there seems to be no doubt but that wherever any such officer endeavours to impose upon a Court, by making a return to a writ of a matter known by him to be false,, he is, in strictness, liable to be punished, in this manner, for his con- tempt. Tet it seems that the Court will not easily be prevailed on to proceed in this manner for a bare false return, but will rather leave the party injured by it to his remedy by an action, unless there be some extraordinary circumstances of hardship or oppression; as where an officer who had arrested one on a capias, returned that he had taken him, but that the party was so sick, that he could not bring in his body at the day for the fear of en- dangering his life, where in truth the party had been all the while in good health, and was only detained under such pretence in order to extort money from him, &c. And where a sheriff has been guilty of a contempt in the course of a civil suit, and the defendant afterwards dies, an attachment may stiU. issue against the sheriff for the prior contempt.." An attachment against the sheriff, as in other Application cases, must be applied for and issued promptly after the default complained of. Thus where a plaintiff,, on account of negotiations between himself and the defendant, delayed for a term to proceed against the sheriff,, the Court held the latter to be discharged by the plaintiff's laches.^ And an attachment against a sheriff has been set aside because, by the delay in issuing it, the sheriff has been prevented recovering the debt against the defendant, or proving for it in bankruptcy.' ' B.T. Sheriff of Middlesex, ^ Com. Cr. Pr. 36. 1 D. P. 0. 53. Digitized by Microsoft® 292 KEITEDIES AGAINST THE SIIEKIPr. How exe- cuted. Settinj? jifiide upon teiins. How issued. The writ must be directed to tlie coroner, and lodged at Hs office. The indorsement should be for costs of the attachment in addition to the description of the nature of the contempt, and a bill of such costs should be annexed to the -writ. The coroner usually returns cepi corpus, but the caption of the sheriff is merely nominal by giving notice of the attachment at the office of the under- sheriff, upon which the matter is either settled, or a rule obtained to set the writ aside. The discretion of the Court, on setting aside an attachment against the sheriff for the escape of a prisoner taken on a ca. sa., is to be governed by the principle laid down in an action for damages, under 5 & 6 Vict. c. 98, s. 31 ; and, if necessary, an action will be directed to ascertain the amount of damages, the attachment standing over. The true measure of damages, in such a case, is the value of the custody of the debtor at the moment of the escape ; and no deduction is to be made on account of anything which the plaintiff might have obtained by diligence after escape. But if the plaintiff has done anything to aggravate the loss occasioned by the sheriff's neglect, or has prevented the sheriff from retaking the debtor, the damages will be materially affected by such conduct.' The application to set aside an attachment for not bringing in the body must, if made on the part of the sheriff, or any officer of the sheriff, be grounded on an affidavit showing that such application is reaUy and truly made on the part of such person himself, at his own expense, and for his indemnity only, and without collusion with the original defendant.- ' Ardeii v. Goodacrc, B. 367. 11 0. "- Eeg. Gon., Hil. T., 1853, Digitized by Microsoft® BY ACTION. 29t "When a sheriff wlio has made defaiilt so as to ho Against lati slieiilt. in contempt has gone out of office, motion may he made mthin six months for an attachment against him as late sheriff in like manner as against a sheriff for the time being ; except that in this case the writ must be directed to the existing sheriff instead of the Section IH. BY ACTION. In general, any person who has sustained anj" "niicniiabic damage in consequence of the negligence or fraud or tortious act, whether wilful or inadvertent, of the sheriff when acting ministerially, or of his under- sheriff or officers when acting under colour of authority from him, may bring an action against the sheriff for compensation in damages for anj- wrong so committed, whether by himself or by them. The relation between them has been sometimes compared to that of master and servant ; and some- times to that of principal and agent. To some extent the comparison may be just, but beyond this there seems neither similitude nor analogy. Tho reason that the sheriff is held liable is, that having a duty imposed upon him by law, instead of per- forming it himself he delegates it to another; and therefore it is but just that he should be responsible for the misconduct of those to whom he so delegates the performance of his duty.' As applied to him, therefore, the maxim "respondeat superior" prevails to its fullest extent, and ceases only to apply to the sheriff for the acts of his officers where the criminal 1 Smith T. Fritchard, S C. B-. 588. Digitized by Microsoft® liable. 294 REMEDIES AGAINST THE SHEEIFF. boundary lies. Thus, he is liable, not only for acts of negligence, but for wilful and fraudulent acts, and for such, as might warrant even a criminal prosecution, as for extortion, and .the like.' On penal statutes he has been held liable at the suit of the party aggrieved, and also at the suit of a common informer;^ but the words in those statutes giving the plaintiff an option to proceed against the sheriff or his officer must be construed reddendo singula singulis, and not as giving him a right to proceed against each person offending.' The sheriff cannot be sued for negligence in the execution of a writ delivered to his predecessor.* When not But to charge him for the act of his officer two ' things must concur: — first, the sheriff must be act- ing in a ministerial and not in a judicial capacity;' secondly, the officer, for whose conduct he is sought to be charged, must be acting in execution of, or under colour of, an authority received from the sheriff." Thus, ' where the bailiff was originally authorized by the sheriff's warrant to execute pro- cess, upon which he entered and seized, and after- wards a supersedeas came, and was duly served on the baiUff, and a demand of the goods made upon him; it was held that for the conversion of the bailiff, after the supersedeas, the sheriff was not liable; it being an act done not under the sheriff's authority 1 LaycocWs case, Latch, 187; ' Solroyd v. Birare, 2 B. & Wooclffatev.Xnatchlmll,2T.'R. A. 473; Fitcher v. King, 9 148 ; and see Raphael v. Good- Ad. & E. 290 ; and see Brown man, 8 Ad. & E. 665; Smart y. v. Coplei/, 8 So. N. R. 354. Eulton, ib. 568, n. « Crowdcr v. Long, 8 B. & ''^ Sturmy Y. Smith, II 'Ea.st, C. 698; Brown v. Copley 8 21- Sc. N. C. 363 ; Smart v. Sut- 3 Feshall v. Layton, 2 T. E. ton, 8 Ad. & E. 568, n. ; and 712. see Smith v. Fritchard, 8 C. B. * Davidson\. Seymoitr, 'KooA. 588. & M. 34. Digitized by Microsoft® BY ACTIOX. ;295 but in defiance of it.' So when tlie bailiff, on arrest- ing tinder an order of committal or a oa. sa., receives tbe amount of debt and costs (wbicb he is not autho- rized by the warrant to do), the sheriff is not liable for the consequences, the bailiff having no authority from the sheriff to enter into any such contract on his behalf.^ If a fi. fa. be issued against the goods of one person, and the baOiff, by mistake, seize the goods of another, the sheriff is liable ; because in that case the bailiff is acting under colour of an authority from the sheriff.^ For the same reason, if an arrest be made by the baOiff after the return day of the writ,* or if an arrest be made under a fi. fa., and the like, the sheriff is liable.^ It is a familiar rule that a servant or deputy is not personally chargeable for neglect of duty. He is only liable to be sued for acts of misf eazance. By the same rule, neither can an under-sheriff nor a bailiff be personally charged for any act of nonf eazance or neglect of duty. For such things the sheriff alone must answer, provided it be something which, by his command or authority, the officer was bound to do. For instance, if a bailiff, who has a warrant from the sheriff to execute a writ, suffer his prisoner by neglect to escape, the sheriff shall be charged for it and not the bailiff. But if the bailiff turn the prisoner loose, the action may be brought against the bailiff him- self. The under-sheriff is the general deputy of the high sheriff for aU. purposes within the scope of his office. A bound baUiff is only the high sheriff's servant or 1 Jii-oum V. C'oplei/, 8 Sc. N. 40. C. 362. * Farrot v. Mmnford, 2 Esp. - Woods V. Finnis, 7 Exch. 585. 363. » Smart v. maton, 8 Ad. & ^ Aclcworthy.Kempe,'DoTXgi.. E. 568, n. i I I Digitized by Microsoft® 296 EEJIEDIES AGAINST THE SHEEITF. agent to do his bidding in a particular transaction ; that is to say, he is the special officer of the high sheriff for the individual occasion wherein he is em- ployed, and for that individual occasion only; so that process directed to one bailiff is no authority for another to act upon. This distinction, kept steadily in view, ■will explain many things apparently difficult, more especially the effect of admissions accompanying some official act and brought forward to show the privity between the sheriff and his officer. Kvidonoe to To found an action against the sheriff for the act coimect the « i • t .i . «> • ■ t (» iitttccrtrith or default of his baohff, it is therefore necessary to prove the authority of the bailiff. It is usual, indeed it is universal, for a warrant in writing to be granted to him; also it is customary before issuing the war- rant to indorse upon it the name of the officer by whom it is to be executed; and when it cannot be executed, it is returned by him to the sheriff's office ; but if executed, it is kept by the officer for his own justification, and he merely returns to the sheriff a memorandum of what has been done under the war- rant, from which the sheriff's return is made. But there does not appear to be any obligation upon the sheriff to grant a warrant or precept in writing. A parol command seems, in all cases, except as afore- said, sufficient in law to create authority. Now, Avhere an agent's authority to do a particular act is in writing, the rules of evidence requiring the, best or rather the highest degree of evidence the matter admits of to be produced, make it necessary that such written authority or warrant should be produced on an issue involving the question of authority or no autho- rity.^ The warrant, after execution, is either retained by the officer or returned to the office whence it issued. 1 Brake v. Sylics, 7 T. E. 113. Digitized by Microsoft® BY ACTIOS'. 297 "WTien it is retained, a sub. due. tec. must be served upon him. "VVben it is returned, a notice to produce must be given, and secondary evidence of it will be admissible, in tbe event of its non-production. Wliere it had been returned by the bailiff to the under-sheriff, the sheriff stiU. being in office, it was held that a notice to produce, served upon the attor- ney of the sheriff, was sufficient.' Where the bailiff had given the warrant to a third person, and it could not be found after diligent inquiry, secondary evidence of its contents was admitted, without a notice given to the defendant to produce it.^ A warrant obtained from the officer of the London agent of the sheriff is sufficient to connect the sheriff with the acts of the officer executing it.' In every case it must be shown that the sheriff has either granted a warrant to the officer, or has subsequently recognized his act ;* it is not enough to prove him a general baUiff, and to show that he had given a bond of indemnity to the sheriff.^ And it has been held insufficient to produce an examined copy of the warrant, with the bailiff's name indorsed on it, though the sheriff had returned the writ.* So where an examined copy of the writ and return, with the bailiff's name written on the margin, was produced, the evidence was considered defective." But it would seem that the fact of the bailiff's name appearing on the writ is evidence to go to the jurj' of the connection, and if it be proved to have been written by authority of the sheriff, it will be sufficient proof. Thus, in an a,ction for not arresting, the privity was held sufficiently established 1 Taplin t. Atty, 3 Bing, 165. 2 Minshall t. Lloyd, 2 M. W. 450. 3 Shepherd v. Wheehle, 8 C, & P. 534. * Martin v. JBell, \ Stark, 413. 5 Dralic Y. Sylces, 7 T. E. 113. " Jones V. Wood, 3 Camp. 228;' HillY. Sheriff of Middle- sex, 7 Taunt. 8 ; Morgans, v. Bridges, 2 Stark. 314 ; Ferinor V. Phillips, 5 Moore, 183. Digitized by Microsoft® 298 EEMEDIES AGAINST THE SHEEHT. by the evidence of a witness wlio produced tlie writ, and said that he helonged to the sheriff's office, and had indorsed the bailiff's name on the writ.' In another case eyidence of a like kind was given and held sufficient; it being in evidence that it was the custom of the office to indorse upon the writ the name of the bailiff who was to execute it.^ So where an examined copy of the writ, as returned by the sheriff with the officer's name indorsed, was pro- duced, and the writ was shown to have been executed by a person of that name, and that the custom of the sheriff's office was to grant a warrant to the officer whose name was indorsed on the writ, or, if not, to strike the name out, and insert that of another officer, the evidence was held prima facie sufficient to fix the sheriff.' So where it was proved that a bail-bond, which had been executed and delivered to the bailiff upon an arrest under bailable process, had been re- turned to the sheriff, and upon it that he had returned cepi corpus, the agency was held sufficiently esta- blished without production of the warrant.* So, where, in an action for false return to a writ, a paper was produced from the sheriff's office containing an order to the bailiff giving the necessary instructions for making a return to the writ in question, and con- taining his answer; it was held that the paper amounted to a clear recognition by the sheriff that the bailiff was the person to whom the execution of the writ had been entrusted.^ And where a bailiff proved that he had seized under a warrant brought to him by one who said it came from the sheriff's office, and that he knew the handwriting in it, but had since lost it, the evidence was held sufficient.^ 1 Francis v. JS'mt'c, 3 B. «& J. 238. B. 126. i Martin v. Bell, 1 Staxk. - Tcalby v. Gaseoigne, 1 416. Stark. 202. 5 /ow^v. TToix;, 3 Camp. 229. ' Scott V. Marshall, 2 C. & « jVooh v. jBapAaei, 2 So. 489. Digitized by Microsoft® BY ACTIOX. 299 So, where the plea admitted the officer who aiTested to he the agent of the defendant for that purpose, it was held unnecessary to produce the warrant in order to fix the sheriff with liability for acts arising out of the arrest.^ When it is necessary to prove the writ, the warrant reciting the writ is not sufiicient evidence of it; the recital is merely in the nature of a declara- tion accompanying the warrant, but not evidence of the truth of that declaration; just as also the produc- tion of the writ by the sheriEE is not, except as against the execution debtor, sufficient evidence of the judg- ment.^ The coimection between the sheriff' and his officer being once established, the latter is, in all matters relating to the execution, the same as the sheriff, and it is to him in person that the law looks,' except in cases where the party opposed to the sheriff is col- luding with the officer.* The under-sheriff's admissions (he being the gene- Admissions. ral deputy of the high sheriff) are evidence against the sheriff, upon proof of his acting as under-sheriff, without further proof of his authority in the parti- cular transaction.' On the other hand, the admissions of a bound bailiff, he being an oflScer in the particular transaction and in that alone, are inadmissible until the connection between him and his superior is esta- blished by the warrant or otherwise. And even then his admissions wiU be evidence only in the same man- ner and to the same extent as those of any other agent." Again, the sheriff will not be affected by the ' Barsham v. BallocJc, 10 * Crowder v. Long, 8 B. & Ad. & E. 23 ; Eeid v. Poynt:, C. 598. ' 8 Dowl. 410. ^ Doe d. James v. Broicn, 5 2 White V. Morris, 11 C. B. B. & A. 2i3 ; Doe d. Bowley 1015. V. Barms, 8 Q. B. 1042. ' Baphael Y.Goodman, 8 AA. " BraJee v. Sykes, 7 T. E. &E. 570. 113; Bowsher v. Calleij, I Camp. 391, n. Digitized by Microsoft® soft KEMEDIES AGAINST THE SHEEIFF. admissions of his under-slieriff, unless they accom- pany some official act done by him, or tend to charge himself; the under-sheriff being in truth the real party in the cause.'- Nor would a bailiff's general conversation with any indifferent person be evidence against the sheriff, unless it can be considered as part of his act touching the execution of the writj and for which the sheriff is responsible. Thus, declarations made by a bailiff while the debtor is in his custody are admissible against the sheriff in an action for an escape.- 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.* 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 de- ponent was in Court, and not called;' but this depends upon the general rul6 of evidence, that where a party produces, on his own behalf, a docimient of which he knows the contents, the statements in it become evi- dence against him. If an execution creditor has in- demnified 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," for in this case the creditor becomes in truth the real party in the cause ; and, similarly, whenever the law places the sheriff, because of his laches, in 1 Snou'hall v. Goodricke, -1 '' Jacobs t. Siimjj/iret/, 2 C. B. & Ad. .'541. &M. 413. ^ Korth \ . Miles, 1 Camp. '■• Urickcll v. SiiUc, 1 Ad. & 390. E. 455. ^ lb. " I'rodor t. Lainson, 7 C. & P. 629. Digitized by Microsoft® BY ACTION. 301 the place of the debtor, as regards the creditor the debtor's admissions will affect the sheriff.' For in- stance, 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.- The execution creditor, to justify his taking body Defence, or goods under process, must show the judgment and writ.^ When the plaintiff is any other than the exe- cution 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. A sheriff may justify under an irregular" or inegniai' erroneous writ any act done under it before it is set ™^ ^' aside," provided the writ be not void on the face of it for want of seal or otherwise, or did not issue from a Court having no jurisdiction;' but if it be void, the sheriff is responsible whether he knew it to be void or not, or could not have discovered its defect with ordinary care.** No writ of execution, except an elegit, need be Eeturns. returned; therefore a sheriff, justifying under one, need not, in general, show its return. But if any nlterior 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 1 Williams v. Bridges, 1 " Frentice t. Harrison, 4 Stark. E. 42 ; and see CooU Q. B. 852. V. Braham, 3 Exoh. 185. ' WooUe^J v. Clark, 5 B. & - Williams v. Bridges, 2 A. 746. As to the distinotion Stark. E. 42; see-Kempland in cases where the action ia , V. Macauley, Peake, 65. brought against the original '' 1 Wms. Saund. 298, n. [e). plaintiflf, see Smith t. Stjdney, « White Y. Morris, 11 0. B. L. E., 5 Q. B. 203. 1034 ; supra. ^ See Sooper v. Zane, 10 Q. ^ Ante, p. 174 ; Broicn y. E. 561. Watson, 23 L. T., N. S. 74.5. Digitized by Microsoft® 302 EEMEDIES AGAINST THE SHEEDT. the prior writ, in order to warrant the issuing of the subsequent one. The sheriff's return has been held to operate as an estoppel upon him in cases where a scire facias has gone against him of the money according to the value returned of the goods seized in execution,' but this is otherwise in an action founded on tort ; the rule respecting the latter class of actions is that not only must a wrongful act have been committed, but damage must have been thereby caused in order to entitle the person injured to recover.^ Thus also the sheriff's officer is not, for the purposes of his own justification, concluded by his return. Notice of The sheriff is not in any case entitled to notice action. of action for things done by him in executing the process of the Court ; and where by Act of Parlia- ment he was empowered to levy debts due in respect of taxes recorded in the exchequer, it was held that he was not entitled to a month's notice of action as a collector under the 43 Geo. 3, c. 99, s. 33.' The nature of the sheriff's duties in the execution of writs exposes him constantly to the risk of actions at the suit of the various parties interested : first, at the suit of the party whose person or goods the sheriff has taken, for damages consequent on any irregularity in carrying out the execution, or any breach of the sheriff's duty as an officer of the Court ; secondly, at the suit of the party suing out the writ for damage arising out of the negligence of the sheriff in carrying out the execution, or for a ffilse return, or for extortion ; and thirdly, at the ' Mildmay v. Smith, 2 Wii»s. ^ Sobson v. Thelluson, L. R. , Saimd. 343 ; Clerk v. Withers, 2 Q. B. 642 ; Stimson v. Fam- 2 Ld. Eaym. 1075; and see ham, L. R., 7 Q. B. 178. JRemmctt v. Lawrence, 15 Q. ' Copland \. Poii-elLl'&mg. B. 1004. 369. Digitized by Microsoft® WEOlfGFrL EXECUTION. 303 suit of the landlord of the execution debtor for removing goods seized without satisfying his claim for rent. Under these heads the various cases -will be considered separately. trespass- Sectiojst rV. ■WRONGFUL EXECUTION. The sheriff must, as we have seen, execute all writs Acts of at his peril; and great care is necessary to avoid rendering himself liable to an action as a trespasser at the suit of some party interested; for if under any writ he seizes the person or goods of anyone other than the person against whom it is issued,' or if the process of the Court be abused, as by breaking open doors under circumstances not justifiable,^ or by arresting out of his baUivsdck, or by proceeding with an execution after knowledge that a stay of proceed- ings has been ordered,* or after directions from the plaintiff not to do so, or by seizing under an execu- tion goods of the defendant which are not liable to seizure, — in all such cases the sheriff may be held liable as a trespasser, on the principles discussed in the earlier chapters on the execution of- writs. Similarly, also, if he continues in possession of goods for an. unreasonable time.* Thus, where after seizure and sale by auction of the lease of a dwelling-house under a fi. fa., the sheriff remained in possession of the house an unreasonable time for the further exe- cution of the writ, he was held to be a trespasser, since the seizure did not vest the term ia the sheriff; ' AclcwoHh Y. Kempe, 1 '* Me Bryant, 4 Ch. D. 98. Dougl. 40. * Ash V. Bawnay, 8 Exoh. 2 See pp. 191, 212, 237, 249. 239. Digitized by Microsoft® ;j04 EEMEDIES against the SnEEIFF. it remains in tlie debtor until the slieriff executes an assignment to the purchaser.^ Evidence. To support an action for trespass to goods, it is, in general, sufficient prima facie evidence of property for the plaintiff to show that he was in possession of the goods at the time of seizure; or to show an assignment to himself from the person in possession. This may, however, in the case where the execution debtor is the person in possession, be rebutted by evidence that the goods were assigned fraudulently ■without good consideration with the intention of de- feating creditors ; and, as we have seen,- the sheriff may in that case seize the goods in execution, and prove the fraud of the assignment or bill of sale in justification. This is always a question for the jury.' To prove fraud, declarations made by the assignor at the time of executing the bill of sale are admis- sible, as part of the res gestae, but not if made at another time.* Where A. sued out a writ of fi. fa. against the goods of B., and the sheriff executed a bill of sale of certain goods to A. ; B. remained in possession of the goods, and the sheriff again took them under another execution against B. : it was 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 the sheriff re- lies on the fact that a deed, good as against all but creditors, is fraudulent and void, he must show that he represents a creditor." ' Flafifair v. Ilusgrovc, 11 356 ; Perm v. Schokij, 6 ib. M. & "W". 239. 2-13 ; Lewis v. Jtoffvrs, 1 C, ^ Ante, p. 185 ; and notes M. & E. 48. to Twi/ne'scase, 1 Sm. L. C. 12. " IFillics v. Farki/, 3 C. & ^ MartindaU v. Booth, 3 B. P. 395. & Ad. 498 ; 1 Sm. L. C. 15. « White v. Moi-ris, 11 C. B. * Phillips V. Earner, 1 Esp. 1028. Digitized by Microsoft® ■WEONGFUI, EXECUTION. 305 If the execution debtor becomes bankrupt, the right of the trustees to his property relates back prima facie to the act of bankruptcy; but the sheriff cannot be made liable in trespass by relation.^ It must be remembered that in aU cases where the person or goods of the wrong party have been seized by the sheriff under the directions of the judgment creditor or his solicitor, the party injured has the option of suiag the creditor.'' No action will lie against the sheriff or his officer PriTQege for arresting a party who is either permanently or ^'^ "^^st. temporarily privileged from arrest; though done with a knowledge of the fact and from malicious motives.' The sheriff is justified in taking a defendant under Misnomer. an order of committal, or ca. sa* which pursues the name in the action on which the judgment has been obtained, though that be not the defendant's proper name,* for in such a case the defendant by appearing in the action is taken to have waived the misnomer. But it is otherwise under an arrest order, which is obtained ex parte and without notice to the defendant, under which, therefore, the sheriff shoTild not arrest a person who is misnamed; for even if the defendant was known by the name in which the order is made out, or if he had assumed it in the particular case so as to afford a sufficient justification to the sheriff in acting under it, yet he would not be liable to an action for not executing it;' whereas, on the other hand, unless the defendant was as commonly known by the name used in the writ as by his real name, the. sheriff would be liable to an action of trespass for executing 1 Cooper V. C««y, 1 Sm. L. ' ^„te, p. 231. 0. 488. * Fis/ier v. Magnay, 1 D. & ^ ' See Jaxmam v. Sooper, 1 L. 40. D. & L. 769. * Morgans v. Bridges, 1 B. & Aid. 647. ^_ Digitized by Microsoft® ^ 306 EEMEDIES AGAINST THE SHEEIFP. "Unlawful detention. roid writs. Damages. it. A person, arrested under a mistake as to his iden- tity, who deposits money in order to obtain his dis- charge, -will not he taken to have assumed the character of defendant if he protests against the arrest, and gives notice of the mistake to the sheriff.' If father and son bear the same name, and a writ issue against the son, without the addition of "the younger," the father is prima facie intended; but this prima facie intendment may be rebutted, and the sheriff be made liable for taking the father's goods by showing that the judgment was obtained and the writ issued against the son.^ If the sheriff having lawfully arrested a party de- tains him after such detainer ceases to be lawful and notice thereof, he will be liable in trespass; but it seems that it is otherwise where the party having been unlawfully in custody, has become entitled to his discharge, unless it can be shown that the sheriff had' notice of the facts entitling him to his discharge.' Again, although the sheriff is bound to execute all writs which may be delivered to him, without inquir- ing into their legality or regularity, yet, where a writ is void on the face of it as being issued without authority, or from a Court which has no jurisdiction over the cause, he would be a trespasser in attempt- ing to execute it,* the whole proceedings being coram non judice. The damages recoverable in these actions are such as the plaintiff can prove that he has actually sus- tained. Where the goods, &c. are sold, and the plain- tiff never regains possession, the jury may give their ' DeMemilv. DaJcin, L.R., 3 Q. E. 18. " Jarmain v. Hooper, 7 So. N. E. 663. ' Smith v. Egi/mton, 7 Ad. & EU. 167. See Prison Act, 40 & 41 Viot. 0. 21. * Ante, p. 301. Digitized by Microsoft® WHONQPTIL EXECrriON. 307 full value.' If he -wrongfully seize goods wMch. are afterwards taken from Mm by another wrongdoer, the owner of the goods may, in an action against the sherijGf, recorer as special damage the amount neces- sarily paid to the other wrongdoer in order to get them hack/ Again, where goods wrongfully taken in execution Acts of con- hy the sheriff have been destroyed, or changed in quality, taken or detained, with the intention of de- privimg the owner of them, the sheriff may be liable to an action for the conversion, or for the proceeds of the sale, if he has sold them. To support such an action, the plaintiff must have had, at the time of the conversion, a right of property (general or special) and the actual possession or the right to the inmie- diate possession, as against the defendant, of the subject-matter of the action.^ The sheriff, for ex- ample, is not liable at the suit of the baUor for sell- 1 ing goods absolutely on execution against a debtor who is merely bailee of them without power to seU, unless at the time of seizure the bailor was entitled to possession of them.* Bare possession of personal chattels, or possession by a third person, and assign- ment of them to the plaintiff is, however, prima facie evidence of property in the plaintiff to support the action.^ The effect of a fraudulent assignment has been already discussed.^ The sherLffi cannot be made liable by relation for acts of trespass;' but for acts of conversion it has 1 LochUtjv. Fye,8'K. (feW. E. 9 ; 2 'Wins. Saund. 47. 133; Fouldes v. Wilhughhy, * Bradley \. Copley, 1 C. B. ib. 548. 685. 2 Keene v. Dillce, 4 Exch. ^ As to its 'bemg conclusk» 388 ; see also Gregory v. Slow- evidence, see Mliott v. Kemp, man, 1 E. & B. 370.. 7 M. & "W. 312. " Gordon v. Sarper, 7 T. ^ Jjnte, pp. 185, 304. x2 Digitized by Microsoft® 308 EEMEDIES AGAINST THE SHEBHT. been held otherwise.' He is, however, now relieved from this liabOity by the Bankruptcy Act in cases which fall within it.' Evidence. It should be kept in miad that we are only writing of actions brought against the sheriff. Being so, it would be idle to enter into the question, when a de- mand 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 be by a direct act of conversion, as by seizure under a fi. fa., and the like. How the privity or connection between him and his officers is established in evi- dence, and how far, and when, he is affected by their admissions, has been already explained. Damages. In this action, as a general rule, the proper measure of damages is the value of the thing taken. On as- , sessing them the jury are not limited to its value at ! the time of the conversion, but they may find its value at a subsequent time, in their discretion.' On the other hand, when, after an act of bankruptcy, a sheriff seizes and sells goods, and the trustees bring an ac- tion for the conversion, the juiy may deduct the expenses of the sale, if the trustees would themselves have had to sell the goods.* The price at which the goods are sold at a sheriff's sale is not necessarily the measure of damages, if the sale be wrongful. But when the plaintiff is a trustee in bankruptcy, and would have been obliged to sell the goods if they had come to him, juries axe often induced to return a verdict for no more than the sum at which ' Balme v. Sutton, 9 Bing'. ' Greening v. Wilkinson, 1 471 ; Garland V. Carlisle, 311. C. & P. 625 ; Cook v. Hartle, & W. 162 ; 4 Bing. N. C. 7. 8 ib. 568. 2 32 & 33 Vict. 0. 71, ss. 87, * aarke v. Nicholaon, 1 C, 95 ; ante, pp. 187, 203, 219 ; M. & K. 724. see 1 Sm. L. C. 523. Digitized by Microsoft® ■WE0NGFT7L EXECUTION. 309 the sheriff actually sold.' The restitution of the goods may he shown in mitigation of damages.'' Special damage may be recovered in this action if claimed.' Another cause of action against the sheriff for Caxrying to irregularity in carrying out executions against the m24hoiirs. person was given hy the 32 Geo. 2, c. 28, from the preamble of which it appears that so grievous and oppressive had the conduct of gaolers and inferior officers, in the execution of process for debt, become towards their prisoners, that the legislature felt bound to interfere, and protect them. With this intent it was enacted (amongst other things) "that no sheriff, under-sheriff, bailiff, serjeant-at-mace, or other officer or minister whatsoever, shall, at any time or times hereafter, convey or parry or cause to be conveyed or carried any person or persons by him or them arrested or being in his or their custody, by virtue or colour of any action, writ, process, or attachment, to any ; tavern, ale-house, or other public victualling or drinMng-house, or to the private house of any such officer or minister, or of any tenant or relative of his, without the free and voluntary consent of the person or persons so arrested or in custody nor shall carry any such person to any gaol or prison within twenty-f OUT hours from the time of such arrest, unless such person or persons so arrested shall refuse to be carried to some safe and convenient dwellingT house of his, her or their own nomination or appoint^ ment, within a city, borough, corporation or market town, in case such person or persons shaU be there arrested, or within three miles from the place where ' Whitehouse y. Atkinson, EoU. Abr. 5 ; Moon v. Eaphael, 3 C. & P. 344. 2 Bing. N. C. 310. ^ Coimtess Eutland's Case, 1 ' Davis v. Oswell, 7 C. & P. 804. Digitized by Microsoft® 310 EEMEDIES AGAINST THE SHEEIFr. STicli arrest shall he made, if tlie same sliall be out of any city, •borough., 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 ofB^cer 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 501. (over and above such penalties or punishments as he or they shall be liable unto by the laws now in force). ^ The first section of this Act applies only to arrest on mesne process, and was passed with the intention of giving to the person arrested an opportunity of procuring security, or of agreeing with the person at whose suit he was arrested." Since the discontinuance of the old sponging-houses the Act seems to have been treated as practically obsolete, and it appears to be the usual course to convey the party "to prison imme- diately. The Act has, however, never been repealed, and since an order of arrest is necessarily obtained on an ex parte application without notice to the debtor, it would seem that he is still entitled to the benefit of its provisions when arrested under such an order, and that a refusal to be carried to some private house 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.' 1 Sect. 12. Pearson, 1 Or. & M. 372 ; 2 Evans v. Atkins, i T. E. Sarsham v. Sullock, 10 Ad. & 555- E. 26 ; Gordon v. Laurie, 9 Q. 2 See Simpson v. Rmton, 5 B. 64 ; Silk v. Humphrey, 4 B. & Ad. 35 ; Sewhirst v. Ad. & B. 970. Digitized by Microsoft® •WHONGFUL EXECUTIOlf. 311 The action is at tlie suit of the party aggrieved to recover the penalty of 50Z.,' against either th'e sheriil or the bailiff, but not against both.'' Again, by the stat. 23 Hen. 6, c. 9,' the sheriff is itefusine required to let to bail all manner of persons arrested or in his custody, "by force of any -writ, bill, or war- rant, in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient per- sons having sufficient within the counties where such persons be so let to bail," &c.* Persons in execution, or who are in custody on a capias uilagatum, and the like, are excepted. The tailing of bail is now no longer obUgatoiy on the sheriff on arresting under any writ, with the exception of a ne exeat regno ; ^ and it seems, there- fore, that an action for refusing bail can only be brought against the sheriff by a person arrested under that writ. If the defendant tender sufficient sureties, that is, persons having sufficient within the sheriff's baili- wick, and the sheriff refuse to accept them, he is liable in damage, or he is liable in a qui tarn action for the penalty of 40^. given by the statute." The breach of duty or wrongful act is the refusal to accept the offered bail. On proof of the arrest and refusal, therefore, the party aggrieved is entitled to a verdict, and the act provides that he may recover 'treble damages, that is, three times the single da- Damages. 1 S. 12. Treble costs were * Lomll v. Slwriffs of Zon- abolished by the 5 & 6 Vict. don, 15 East, 324. ,;. 97, a. 2. * Ante, p. 261. - FcsluaU T. Layton, 2 T. E. " No action lies against the 712. sheriff for taking insufficient ' Not repealed by the Uni- bail ; but he shaU be amerced, formity of Process Act, nor if he has not the body forth- by the 1 & 2 Vict. c. 110; coming to appear and answer see Fosterne v. Kanson, 2 Wms. the plaintiff. See 2 Wms. Saund. 59. Saund. 61 /. Digitized by Microsoft® 312 EEMEDIES AGAINST THE SHEEHT. mages. Thus, if tlie jury give 20?. the Court will award 40Z. more.^ In tlie qui tarn action one half of the 40?. penalty goes to the Queen to be employed to the use of her house, the other half to the informer who sues* Section V. FAXSE RETTJEN. Among the actions to which, in the discharge of his duty in the execution of writs, the sheriff is sub- ject at the suit of the party suing out the process, the most frequent is that, for a false return. 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.^ At common law it was necessary that there should be fifteen days between the teste and return of all writs of execution; but they are now returnable "immediately after the exe- cution thereof." The return is either general or special. If general, it is usually indorsed on the wnt itself. If special, it is commonly engrossed on a dis- tinct schedule or piece of parchment and annexed to the writ, with some such words as these indorsed on it — " The execution of this writ appears in a certain schedule hereunto annexed." The sheriff ought in strictness to return every writ when executed ; but . this is not usual unless ruled or ordered to do so by the plaintiff,' in order to prevent improper conduct in the officer, or to found an action against the sheriff where by his negligence the plaiatiff's right to re- cover on his judgment has been defeated. • Suckh T. Bewes, 4 B. & C. Abr. Sheriff, Ret. 154; Tidd'sPr. 102-5. ^ See Daniels v. Gompertz, 2 Dalt. Ch. 36, 41 ; Vin. 3 Q. B. 322. Digitized by Microsoft® PAISE EETUEN. 313 The sheriff can only be ruled to return the writ ■while he is in office, or within six calendar months after he goes out of it. Such rules upon the sheriffs of London and Middlesex are fonr-day rules; upon other sheriffs, eight-day rules. A copy of the rule, with the name of the officer by whom the writ was executed indorsed on it, is then served at the office of the sheriff's deputy; and unless the time be enlarged on the application of the sheriff, he must return the writ accordingly, otherwise the Court will grant an attachment against him. The not returning the writ, without other default, is not a cause of action.' The sheriff ought to set his christian name and surname to every return, so that the Court may know from whom it came.^ It is not necessary that it be set sua propria manu. It may be and is generally done by the imder-sheriff. All returns must be in the name of the high sheriff.' "Where there are two persons, as in Middlesex and in some counties corpo- rate, the names of both must be set to it, for in law they constitute one officer.* If a return be by coro- ners 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.^ It is otherwise in the case of sheriffs. If the sheriff die, the tinder-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 ' Morland v. Leigh, 1 Stark. (H.); and seeBac. Abr. Sheriff, 388 ; see 16 Q. B. 243. Com. Dig. Viscount, Ret. (C). 2 12 Edw. 2, c. 5 ; Plo-srd. ■* Ante, p. 7. ' 63 a ; R. v. Dunn, 2 Moody, * Lambe v. Wiseman, Hob. C. C. 297; Stroud r. Watts, 83. 3 D. & L. 799. " Vin. Abr. Ret. (D.). 3 lb. ; Tin. Abr. SJieriff ' 3 Geo. 1, o. 15, s. 8. Digitized by Microsoft® 314 EEMEDIES AGAINST THE SHEBHT. to Ms 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 rettim is to inform the Court of the truth of the matter, precise certainty in form is not re- quired.^ If the whole command of the writ be shown to be performed in substance, that is sufficient, as captus est to a capias, attachiatus est to an attach- ment, without saying where, by whom, or how; and similarly, a return of fieri feci need not specify the particular goods taken, or the sum for which each article is sold.^ 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 or evasive. Thus, nulla bona or non est inventus prout ei constare potent is uncer- tain and insufficient.^ Where the sheriff returns that he has seized the goods in question "by virtue of several previous writs according to the priority thereof," he ought to show the amount due on each of the earlier writs, and the value of the goods seized." And a return that the goods seized remain in hand for want of buyers should state the value of the goods.'' 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 .^ Imperfect and insufficient returns may 1 Co. Litt. 363 a, 8 Co. Taunt. 876. 128 a, DovastonY. Payne, 2 H. * Dalt. ch. 36. Bl. 630 ; Wilson v. Law, 2 « Vin. Abr. Ret. (L.). Salt. R. 589; Reynolds v. Bar- ^ Wintle v. Freeman, 11 Ad. ford, 8 So. N. C. 238. & E. 548. 2 Dalt. oh. 36. ' Ante, p. 207. 3 Wdlett v. Sparrow, 6 » Dait. ch. 36. Digitized by Microsoft® FALSE EETTJHIf. 315 be amended by the Court,' even after an attachment granted against the sheriff. The return was formerly deemed of such high re- gard that, as a general rule, the sheriff was estopped by it.' Now, however, it is regarded as evidence only — evidence not conclusive even upon the sheriff him- seK,' except, perhaps, where it shows a state of things such as that the, sheriff has money in his hands belonging to the plaintiff. If the return of the sheriff be false, he may be Eemedy. fined, or an action wiU lie against him,* — as, for example, if he return nuUa bona to a writ of fi. fa. when he had an opportunity of making a levy. This is, in fact, the usual form of action against the sheriff for not levying when the defendant has goods within his bailiwick, of which the sheriff either had, or might by using due diligence have had, notice. 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.'' The plaintiff does not waivfe 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 commenc- ing the suit, has charged the original defendant in ' Dalt. oil. 41 ; CavenaghY. Collett, 4 B. & A. 279 ; R. v. Sheriff of Monmouth, 1 Marsh. 344 ; S. V. Sheriff' of Wilts, 8 J. B. Moore, 518. * See exceptions in Vin. Abr. Eet. (0.) ; 2 EoU. Abr. 462; Dalt. ob. 42; Parker \. Mosse, Cro. Eliz. ; Cler/c v. Withes, 6 Mod. 293. ' Gyfford v. TFoodgate, 11 East, 297 ; Bridges v. Walford, 6 M. & S. 42 ; JacTcson v. Mill, 10 Ad. & E. 489 ; PielA v. Smith, 2 M. &W. 388 ; Scarf e v. Hallifax, 7 ib. 291 ; Stan- dish T. Ross, 3 Exoh. 532 Bemmett v. Lawrence, 15 Q. B 1011 ; Stimson v. Farnham, L. R., 7 Q. B. 181. * Com. Dig. Ret. (E. 2) Dalt. ch. 36. * Barr v. Satchwell, 2 Str 813. ^ Solmes V. Clifton, 10 Ad, & E. 675. Digitized by Microsoft® 316 EEMEDIES AGAINST THE SHEBHT. execution,' or brougM an action on the judgment and obtained a second judgment therein.^ An exe- Qutor may bring an action for a false return to a fi. fa. in Ms testator's lifetime.^ When the sheriff defends his return of nulla bona on the ground that the debtor was the domestic servant of an ambassador — ^this being one among the many questions .-whieh sheriffs in the execution of process must determine at their peril — ^the execution creditor may show that the appointment was fraudu- lent.* He may show that the assignment of the goods before execution was fraudulent,* or that the judgment under which the sheriff justifies applying the goods to other purposes than the plaintiff's writ was fraudulent ; " indeed any circumstance which shows that in law the goods were liable to plaintiff's execu- tion.' The sheriff cannot give -in evidence, even in mitigation of damages, an inquisition held by him to inquire into the property of the goods.? As a general rule in this action, admissions which would be evi- dence against the party will be evidence against the sheriff.^ Damages. If there has been no actual loss then no action lies.'" Prima facie, the damage is measured by the whole value of the goods which might have been seized; but all facts may be taken into consideration- which would probably occur as against this prima ' Wordally. Smith, 1 Camp. ^ JFarmollY. Totmg, 5 £. & 332. C. 661. 2 FiUher v. King, 9 Ad. & ' Ante, p. 185. E. 288. 8 Qiossop Y. FoU, 3 M. & S. " Williams v. Cary, 12Mod. 176. 71. ' Williams v. Bridges, 2 * Dehalle v. Flomer, 3 Stark. 42 : and see Coole v. Camp. 47. Braham, 3 Exoh. 185. '• Dewey v. Bayntun, 6 East, "> Stimsmy.Faimham, L.E., 257. 7 Q. B. 180. Digitized by Microsoft® NEaLIQENCE. 317 facie presumption/ — sucli, for example, that tlie debtor has become bankrupt/ or -was likely to become so be- fore the execution was complete; or that the goods seized had previously been assigned by the debtor under a valid bill of sale;^ or that the proceeds were exhausted by a landlord's claim for rent* or by ex- penses, or the Hke. In cases of execution against the person, since the custody of the debtor is only of value to the creditor as a means of putting pressure on the debtor, the measure of damages must be estimated accordingly'; bearing in mind also that, except at the suit of the Crown, such custody cannot last more than one year.* In estimating them the jury may take into account not only the debtor's own resources, but also all reasonable probabilities, founded upon his position in life and the surrounding circumstances, that the debt, or part of it, would have been discharged i£ he had been in custody/ Section VI. NEGLIGENCE. There are several other cases where the question of false return does not arise, in which the sheriff may be held liable at the suit of the party suing out the process, for negligence in executing, or refusal to execute, any writ when he has the opportunity and is required to do so. Thus, for example, he may be sued for not selling 1 SobsonY.Thellusorij'L.'S,., * Levy v. Sale, L. J., 29 2 Q. B. 642. , 0. P. 127. 2 Wylie T. JBireh, 4 Q. B. * j^^^te, p: 224. 566. ^ Macrae v. Clarice, L. R., 2 StmsonY.FarnhMn, supra. 1 0. P. 403. Digitized by Microsoft® 318 EEMEDIES AGAIIfST THE SHERIFI'. goods witMn a reasonable time after seizure;' or for selling improperly.^ His liability for neglect in seizing has been noticed in the last section; and having once seized, his liability to the execution creditor becomes the same as that of an ordinary bailee intrusted with goods for sale ; and upon this principle an action may be maintained and damages estimated. A sheriff is bound to know ex officio the person, and, it seems, also the goods and chattels, of every one in his county. He must likewise use proper care to execute every writ in a reasonable or con- venient time, and in the most effectual way, being liable to an action for the consequences of any wilful or careless neglect.' Thus, if a party, against whom he holds a writ or an arrest order, does not abscond but continues in the daily exercise of his usual occu- pation, appears publicly as usual, is visible to every person that comes to him. about business, and the bailiff neglects to arrest him; upon proof of these facts, without proof of express notice to him of such information as would enable him to identify and arrest the party, the sheriff is liable in damages for a breach of duty. It is not enough to prove merely that the party was withia the baUiwick, in order to charge the sheriff; some notice should be proved;* but, on the other hand, the sheriff is bound to make due inquiries.^ The question of negligence in arresting under an attachment or ca. sa. may be tried in an action for false return; but in the case of arrest under a judge's ' Jacobs V. Hmnphrcy, 2 Cr. Q. B. S61. & M. 413 ; Aireton v. Bemis, * GMon v. Coggon, 2 Camp. 9 Bing. 940. . 189. ^ FMllips T. Bacon, 9 East, " Dyke v. HuJce, 4 N. C. 298. 197 ; Brown v. Jarvis, 1 M. & 2 See Hooper v. Lane, 10 W. 704.- Digitized by Microsoft® NEGLIGENCE. 319 order trndet the Debtors Act, wHch. does not provide for any return, the sheriff may he equally liahle to an action for negligence. The plaintiff must he prepared to prove the making Evidence. of the order, and the lodging it with the sheriff for execution; and the existence of a cause of action against the defendant, or the deht due from him, must be shown; this may be proved by the same evidence that would be sufficient if the action had been simply between the original parties, which wiU be sufficient as against the sheriff. An admission by the debtor is therefore evidence against the sheriff.^ A bound-baUiffi may prove that he endeavoured to make the arrest. It is usual, for the purpose of evidence, to g^ve the bailiff notice where the debtor is to be found. If this be 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 sheriflE, in the daily exercise of his usual calling. Again, if the officers of the sheriff, having once Escape. taken the defendant into custody, suffer biTin to regain his liberty or to become in contemplation of law with- out a keeper, or if, on arrest after judgment agaiast him, they allow him to be in a different custody from that which is likely to enforce payment of the debt,^ the sheriff is liable to the plaintiff for the conse- quences; or if the escape take place with the assent of the officer, he may himself be charged as a per- sonal wrongdoer. Formerly, the sheriff was also ^ Gibbon v. Coggon, 2 Camp. ^ Benton v. Sutton, 1 B. & P. 188 ; Sogers v. Jones, 7 B. & 27. C. 86. Digitized by Microsoft® escape. 320 EEMEDIES AGAINST THE SHEEIFF. liable either to the Crown, or to the plaintiff in civil actions, as the case might be, for the escape from Prison Acts, prison of persons arrested. By the Prison Act, 1865,^ however, he was relieved from liability for the escape from imprisonment of any prisoner other than a debtor; and since the commencement'* of the Prison Act, 1877,' this relief is extended to all cases of per- sons committed to prison.* Under the former of these Acts it was necessary for the sheriff to take security from the gaoler of any prison in which debtors were confined, and the sheriff was the nominal defendant in actions for escape from such prisons; under the later Act he will only be liable to actions for escape arisuig out of the negligence of his own baUiffs; and when the party arrested is once intrusted to the custody of the gaoler, the responsibility of the sheriff will cease. Constructive "When the defendant is taken in execution, the plaintiff has a right not only to have him kept in custody continuously, but also to expect that the sheriff vd.ll allow him no greater liberty than he is by law entitled to. Thus, an action will lie for escape in execution not only if the defendant be allowed to be at large before being taken to prison,^ but also if he be not conveyed to prison within a reasonable time,° if damage can be shovpn.' Where the defend- ant is taken under an arrest order, which is in the nature of mesne process, such constructive escape can never be a cause of action. If the officer takes one arrested to a place out of his bailiwick, the sheriff is chargeable for an escape.^ 1 28 & 29 Vict. e. 126, o. 60. ' Under a, ca. sa. nominal * April 1st, 1878. damages are recoverable; Clif- » 40 & 41 Vict. 0. 21. tmi v. Hooper, 6 Q. B. 468 ; * Sects. 31, 67. but this writ is so rarely used ^ Wms. Saund. 35 a, ■a.-icl). as scarcely to form an exoep- ^ Soldroid v. Liddell, 1 Ld. tion to the rule in the text. Eaym. 241 ; Mas v. Dmis, * See Nias y. Davis, supra. 4 0. B. 459. Digitized by Microsoft® NEGLIGENCE. 321 If on a judgment against two, both be taken in execu- tion and one escape, the sherifE is liable though the other continue in custody.^ The case of husband and wife stands on the same footing.^ If the officer receives the amount indorsed on the writ, and before payment to the execution creditor release the debtor, there is an escape; for in the execution of process against the person a payment to the sheriff is no discharge of the debt as against the creditor.^ If the sheriff have several writs against the same Several party, and arrest him on one of them, he is deemed to be in custody under all; provided the first arrest be not illegal by the wrongful act of the sheriff;* and therefore the sheriff may be liable to an action for an escape at the suit of any of the parties suing out the writs.* The sheriff may be liable though the process be Erroneous . . process. erroneous." Not so if it be a void judgment or a void writ;' for an escape can only be from a state of lawful detention. It cannot, for instance, be on a tortuous arrest, as in a wrong coiinty or the Hke.' If a person taken in execution escape, he may be retaken on a new writ, or the judgment creditor may issue any other kind of execution on the judgment, as if his debtor had never been taken at all;' or, he may proceed against the sheriff for the escape, or for the costs of issuing the new writ. The sheriff may 1 Dalt. App. oh. 7, s. 1. « Via. Atr. Escape (A.) 32. 2 lb. 'lb. (F.) 20 ; Jaques v. ^ Woods V. F'mnis, 7 Exoh. OasMr, 2wms. Saimd. Wlhh; 363 ; ante, p. 263. SUrUy v. Wright, 2 Salk. * Barrat v. Friee', 9 Biag. 700 ; Lane v. Chapman, 11 A. 566; Itoiinsonv. Yewens, 5 M. & E. 979. & W. 152 ; Sooper t. Lam, ^ Vin. Abr. Escape (A.) ; 10 Q. B. 546. Contant v. Chapnan, 2 Q. B. 5 Barton v. Sutton, 1 B. & P. 779. 24; Bao. Abr. Hscape (A.) 2. » 8 & 9 WiU. 3, o. 27, s. 7. A. Y Digitized by Microsoft® 322 EEMEDIES AGAINST THE SHEEIFF. also retake Tiim imder tlie same writ on fresli pur- suit. Damages. The measure of damages in an action for escape or for other negligence in executing an arrest order will be the damage sustained by the plaintiff in the pro- secution of his action in consequence of the absence of the defendant ; or, in the case of a penal action, it win be the damage consequent on the defendant not haying been compelled to give security according to the terms of the order.' Similarly in actions for de- ■ fault in executing an order of committal the measure of damages can only be estimated by the probable value of the effect of the pressure of the imprison- ment (which under such an order can never exceed six weets) in compelling the defendant to pay the debt;- for imprisomnent under this form of order does not operate as an extinguishment of the debt or cause of action, or deprive the plaintiff of any other rights against the property of the debtor.^ In cases which come within the exceptions in the fourth section of the Debtors Act, the period of imprisonment may extend to one year, and the damages may be accordingly greater.* Neglect as There are other duties besides the execution of officer at writs, for neglect in the discharge of which the sheriff may be sued by the party aggrieved ; — special notice of which would be beyond the scope of this work. For example, by the statute 31 & 32 Vict. c. 125, s. 48, it is enacted "that if any sheriff or other returning officer shall wilfully de- lay, neglect, or refuse duly to return any person who ought to be returned to serve in parliament, 1 See ante, p. 257. * Nominal damages are re- ^ See under False Return, coverable for an escape under p. 316. a ca. sa., wMch is, however, ' Ante, -p. 263. sai exceptional case; Cliftou V. Hooper, 6 Q. B. 468. Digitized by Microsoft® MONET CLAIMS. 323 for any county, city, 'borougli, district of burgh?, port, or place witMn Great Britain or Ireland, such person may, in case it have been determined by a Select Conamittee, appointed in the manner herein- before directed, that such person was entitled to have been returned, sue the sheriff or other officer having so wilfully delayed, neglected, or refused duly to make such return at his election, in any of her Majesty's Courts of Record at "Westminster, or Dublin, or in the Court of Session in Scotland, and shall recover double the damages he has sustained by reason thereof, together with full costs of suit, provided such action be commenced within one year after the commission of the act on which it is grounded; or within six months after the conclusion of any pro- ceedings in the House of Commons relating to such election." Section VII. MONEY CLAIMS. As soon as money is received by the sheriff, by virtue of any writ or process sued out by the plaintiff, he is presently, by act of law, debtor to the plaintiff. In the language of the older books, when the money is levied by the sheriff, so as the action ceases against the defendant, the same is by law transferred to the sheriff, having both the judgment to make it a debt and the levy to make him answerable.^ There seems to have been an impression that this contract was not transferred to the sheriff before the return of the writ; but, after solemn argument, it was decided otherwise.- 1 2 Wins. Sa-nnd. 344. Mills, 16 East, 269; Morland 2 DaU v. Birch, 3 Camp. v. Pellatt, 8 B. & 0. 727. 347 ; and see Thurston v. y2 Digitized by Microsoft® 324 EEMEDIES AGAINST THE SHEEIIT. The usual course is, where the party has not pre- cluded himself, to rule the sheriff to return the writ; and upon a return that he has seized and sold and has the money ready, to proceed for the fruits of the execution, hy motion to the Court,' or by action on the return, or for money had and received.'* If the sheriff suffer goods seized under an execution and returned by him of such a value to be rescued out of his hands, a scire facias lies to have execution against hi-m of the money according to the value returned.' A mere seizure wiU. not charge the sheriff in an action for money had and received, nor wiU. an irregular sale, for, until lawful sale, the execution creditor has no interest in either the goods or money, without which interest this action will never lie. By sale or payment of the money the original debt is ex- tinguished, and the debt is transferred to the sheriff.* So, where he receives payment of or recovers by action the amount of any security for money seized under a fi. fa. and refuses to pay it over, an action will lie against him.'' Extortion. Again, a person upon whom extortion is committed, may bring an action against the sheriff for a return of the money. Extortion, or the .taking more fees than are by law allowed, is perhaps the most serious offence with which a sheriff's officer can be charged. It is punishable by attachment, or at common law by indictment; but, as an indictment can only be main- tained against the person actually guUiy of the offence, • Botten T. Tomlinson, 16 C. 727 ; Thurston v. Mills, 16 L. J., C. B. 138. East, 269 ; Giles v. Grover, ^ Cases suprd. 2 M. & S. 197. 3 2 Wms. Saund. 343. * Stoain v. Morland, 1 B. & * Morland v. Pellatt, 8 B. & B. 370. Digitized by Microsoft® MOlfEY CLAIMS. 325 the usual remedy against the sheriff for extortion hy his officer is by action.' In a larger sense extortion denotes any oppression under colour of right. But it is usually, as here, applied to that abuse of public justice which consists in the unlawful taking of money or valuable thing by any officer colore officii, when none at aU is due, or not so much is due, or .before it is due ; " Ex- , tortio est crimen quando x^uis colore officii extorquet quod non est debitujn, vel quod suprd, debitum, vel ante tempus quod est debitum." ^ The difference between bribery and extortion seems to be this, that the former offence consists in the offering a present, or receiving one when offered ; the latter in demanding one colore officii. If an officer, therefore, refuse to execute a writ or warrant unless his fees are paid, the sheriff wiU be liable in damages for not doing his duty; or, after taking the fees under such circumstances (because taken before due), the officer may be indicted for extortion.' So likewise it is ex- tortion to take a bond for his fee before execution.* To take anything for sparing, not warning, or not returning a person to serve as a juryman, or other- wise, at the assizes, sessions of the peace, or at any other court, or to take money or other reward not to arrest or attach, or for any other omission of duty, is extortion. So if the sheriff or gaoler detain one in prison, after being duly discharged, except for lawful fee, it is extortion ; as if he detain him for meat, drink, or the Uke. The person from whom the money has been ex- Eemedy. torted may either apply summarily to the Court for ' Woodgate v. Knatchbull, 2 ' SescoWs ease, 1 Salk. 330. T. E. 148. * ExpaHe Evans, 2 B. & P. 2 See Hawk. P. C. b. 1, 88. ch. 27 ; Dalt. ch. 119. Digitized by Microsoft® 326 KEMEErES AGAINST THE SHEEITF. Evidence. Motion to the Court. restitution/ or bring an action for money lad and received; or, if the offence falls -within the 28 Eliz. 0. 4, he may exact the penalty of 401., one-half of which goes to the Crown, and the other half to the party suing for it; or, again, certain eases of extor- tion might possibly fall within the 32 Geo. 2, c. 28, s. 12, which imposes a penalty of 501.^ If the plaintiff proceeds by action, since the table of fees promulgated by the judges in pursuance of the 1 Vict. c. 55 has the force of a public act, and is therefore to be judicially noticed, it is unnecessary to give any evidence as to the amount of fees allowed bylaw;' it is enough to show, by his return, or other- wise, how much the officer was to levy, and how much he actually received. The plaintiff may recover the penalty, treble da- mages,* or the sum extorted, as the case may be. formerly also, he had in some cases treble costs, but they are no longer allowed.' If application be made to the Court, it must be upon oath either by the examination of witnesses viva voce, or on affidavits, or on interrogatories ; and the party offending (if the complaint be made within a reasonable time) wiU be adjudged guilty of a con- tempt of Court, and punished accordingly. By one and the same rule the sheriff may be called upon to refund the excess, and the officer to show cause why he should not be attached for the contempt." When the excess complained of was a charge for remaining in possession a longer time than was ne- , ' Fhillipa v. Lord Canter- bury, 11 M. & W. 619. ^ See PitMngton v. Coohc, 16 It. & W. '615; Wriffhtup v. Greenacre, 10 Q. B. 1 ; Solmis V. Sparkes, 12 C. B. 260. ' Flavin V. Pnnce, 10 A. & E. 498. * Woodgate v. KnatchbuU, 3 T. E. 148. '^ 5 & 6 Vict. 0. 97, 8. 2. " eialce V. Newbmm, 5 D. & L. 602. . Digitized by Microsoft® MONEY CLAIMS. S27 cessary, and for employing more men than were ne- cessary to keep possession, and the afB.davits •were contradictory, the Court referred the matter to the master for his report.' The sheriff may also be sued for the return of At suit of r» Ti 1 <. 1 • executiou money wrongfully taken from the person against debtor. whom an execution has been issued, or for the pro- ceeds of the sale of goods wrongfully taken and sold in execution." So if there be a balance remaining after the plaintiff's execution is satisfied, such balance becomes a debt from the sheriff to the execution debtor.^ And where the sheriff seizes under a writ of execution, and the owner of the goods contends that the possession is Ulegal, and pays money to avert the evil and inconvenience of a sale, the money so paid may be recovered back in an action for money had and received, if the claim turns out to be unfounded.* Money paid under a threat to seize and seU, or extorted by duress or by a threat of duress of the person,* or paid to the sher riff to redeem goods seized under an excessive levy,' may similarly be recovered. But a voluntary pay- ment of an illegal demand, the party knowing the demand to be illegal, without an immediate and urgent necessity (as to redeem or preserve his person or goods), is not the subject of an action for money had and received.* An action for money had and received cannot be maintained by a landlord to re- cover the amount of a year'^s rent against the sheriff who has sold his tenant's goods under an execution. The landlord's remedy is on the statute of 8 Ann. 1 BlaU T. Newbum, 5 D. & & W. 387. L. 602. ■! Valpy v. Manley, 1 C. B. 2 Notley V. Buck, 8 B. &■ C. 602. 160. 6 Scarfe v. SaUifax, 7 M. 2 Harrison, v. Faynter, 6 M. & W. 288. Digitized by Microsoft® 328 EEMEDIES AGAINST THE SHEBIPF. c. 14, for removing the goods before the year's rent was paid, or by motion to the Oourt.^ In order to maiatain money had and received, either the money or the goods -wrongfully seized (the proceeds of which are claimed by the plaintiff) must originally, or at the time of the action brought, have belonged to the plaintiff, or have been in possession of the plaintiff at the time of the seizure; proof of such possession merely "will constitute a prima facie case against the sheriff.^ Again, the sheriff cannot be fixed with the debt by the laches of the plaiatiff. AVliere the sheriff in Michaelmas term returned to a writ of fi. f a. " goods in hand for want of buyers, value unknown;" and no further steps were taken untU Trinity term follow- ing; in the meantime the goods were seized under an extent by the Crown : it was held, that as the delay was permitted by the plaintiff he could not afterwards fix the sheriff with the payment of the debt.* Dcmana. Although a demand before action brought is not absolutely necessary to the maintenance of the ac- tion, yet a demand should in prudence be made; otherwise the Court will stay proceedings on pay- ment of the sum due, without costs.* If, however, upon sale, money remain in his hands beyond the debt, the defendant, it seems, must demand it of the sheriff before action brought.^ * Green v. Austin, 3 Camp. 2 B. & B. 77 ; see also 1 Ch. 260; see the folio-wing section. Eep. 613, n. ^ Oughton v. Sepp'mgs, IB. * Jefferics v. Sheppard, 3 B. &Ald. 241. & A. 696; Dale v. Birch, 3 3 Euston T. Hatfield, 3 B. & Camp. 347. A. 204 ; Tomlimon v. Shynn, ^ Wooddye v. Coles, Noy, 59. Digitized by Microsoft® KEMOVIXG "WITHOUT SATISFYING YEAb's KENT. 329 Section VIII. EEMOVING WITHOUT SATISFYINa TEAH'S RENT. Before the debtor's goods are removed from the statutes. premises under the execution, his landlord may, under the 8 A Tine, c. 14, claim arrears of rent that are due to him. The statute enacts that "no goods or chattels whatsoever lying or being in or upon any messuage, lands or tenements which are or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever; unless the party, at whose suit the said execution is sued out, shall before the removal of such goods from off the said premises by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said pre- mises at the time of the taking of such goods or chattels by virtue of such execution ; provided the said arrears of rent do not amount to more than one year's rent. And in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailifF one year's rent, may proceed to execute his judgment as he might have done before the making of this act. And the sheriff or other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent as the execution money." And the 7 & 8 Vict. c. 96, s. 67, provides "that no landlord of any tenement let at a weekly rent shaE have any claim or lien upon any goods taken in exe- cution under the process of any Court of law for more than four weeks arrears of rent; and if such tenement shall be let for any other term less than a year, the landlord shall not have any claim or lien on such Digitized by Microsoft® 330 REMEDIES AGAINST THE SHERIFF. goods for more than tlie arrears of rent accruing during four sucli terms or times of payment.'" If then the sheriff has notice that any such claim of the landlord remains unsatisfied, he renders him- self Kahle to an action if he proceeds to remove the goods. Express notice is not required hy the statute.' The notice usually given to the sheriff is only for the purpose of establishing his knowledge of the land- lord's claim; and if that knowledge can by any other means be brought home to him at any time before he has parted with the money, he will be compelled to pay the rent.'' The landlord wiU then have a remedy against the sheriff either by action on the statute,* or by motion ■ in Court for payment by the sheriff out of the money levied.^ The latter remedy is independent of notice to the sheriff, for upon motion the Court will give relief to the landlord at any time so long as the pro- ceeds remain in the hands of the sheriff." Cases witiiiii It has been decided that an immediate and not a the statute. , . . ground landlord is meant.' An executor or adminis- trator is entitled to the benefit of the statute as to arrears due to the testator in his lifetime.^ A trustee of an outstanding satisfied term, assigned in trust to attend the inheritance, is within its provisions." It extends to an execution at the suit of a defendant for 1 Ante, p. 202. ^ Himhett v. Kiiiipson, 2 ' Andrews t. Dixon, 3 B. & Wils. 140. A. 645; Risekj/w.Myie, IIM. ^ Arnitt v. Ganiett, 3 B. & & W. 16. A. 442. ' Arnitt v. Oarnett^ 3 B. & ' Mennet's ease, 2 Str. E. A. 442; Andreivs-v.J)aon,ih. 787. 646 ; CoUyer v. Speer^ 2 B. & " Falgrave v. Windham, 1 B. 67. Str. 212; Wms. Exors. 670. * Barsham v. Bultoch, 2 P. ' Collyer v. Speer, 4 Moore, & D. 241 ; Meid v. Foyntz, 8 473. Dowl.410. Digitized by Microsoft® EEitOVING WITHOUT SATISPYIXG YEAe's EENT. 331 costs as well as to that of plaintiff.' Goods seized under a capias utlagatum are liable for a year's rent.-* Under a sequestration issued out of the Chancery Division, the landlord, it seems, is entitled to a year's rent.^ Goods seized under an extent in aid are not liahle to a year's rent.* The statute is not confined to an original demise of entire premises, it applies as well to a sub-lessee : and it applies to goods taken in execution on part of the original demise." The money claimed must be due as rent, and for the year immediately preceding the execution.'' Eent stipulated by lease to be paid in advance is rent due at the time of the seizure within the meaning of the statute.' The landlord seems entitled to his year's rent without any deduction for poundage.* He is entitled to a full year's rent although he has been used to remit some portion of it to his tenant.' Only one year's rent is to be paid although there be two or more executions.'" The statute is confined to rent due at the time of the taking ; therefore, for rent which accrues after the taking and during the con- tinuance of the sheriff in possession no claim can be made upon the sheriff." Again, the statute does not apply to all cases where the landlord has a right to ' Smclteit V. Kimpson, 2 ^ Gors v. Goston,! Str. R. WUb. 140. 643 ; Colhjer t. Speer, 4 J. B. ^ St. Jolm^s Coll. V. Murcott, Moore, 573 ; Davies v. Ed- 7 T. K. 259 ; Greaves v. monds, 1 D. & L. 393. D'Acmtro, Bimb. 194 ; see " Willimns v. Leii>sey, 1 M. Srandling v. Barrington, 6 B. & So. 92. 6 C. 472. 1" Bod V. Saxby, 2 Str. R. ' lb. ; and Dixon v. Smith, 1024 ; 5 J. B. Moore, 97. 1 Swanst. 457. '' Gwilliam v. iarlcer, 1 * M. V. Be Caux, 2 Price, 17. Price, 274; Boskinsy. Knight, ' Thurgood v. Michardson, 1 M. & S. 245. A landlord 7 Bing. 428. may now, by the 15 & 16 Vict. ^ SaimdersY. Musgrme, 6B. c. 25, distrain upon growing & C. 524. c»"op« for one year's rent, even ' Sarrison v. Barry, 7 Price, while they are in custodid legis. 600. Digitized by Microsoft® 332 EEMEDIES AGAISrST THE SHEEIFF. distrain, but only to tenancies subsisting at tlie time of the execution; therefore, no claim can be made upon the sheriff for rent which has accrued due since the day of the demise laid in an ejectment for the same premises; for, by bringing ejectment, the land- lord treats the defendant as a trespasser and not as a tenant;' and although by the same statute the landlord has the right to distrain for rent during six months after the lease has been determined, this does not entitle him to claim the amount from the sheriff." And for the same reason mere occupation, without payment of rent, under an agreement for a future lease, is not a tenancy within the statute.' The statute applies only to cases where the judgment creditor claims adversely to the landlord, and not where the execution is sued out at the instance of the landlord himself.* The landlord has a right to his year's rent whether the goods be his tenant's or not.^ Por instance, where under a writ of fi. fa. the sheriff levied on and removed goods which were not the property of the judgment debtor, the owner recovered by action the whole proceeds of the levy. Before the removal of the goods from the premises on which they were, the sheriff had notice of a year's rent being due, which he did not pay: it was held, notwith- standing the sheriff had paid the whole proceeds of the levy to the owner of the goods, that he was liable, under this statute, for removing the goods without paying the rent." A mere sale of the goods,' or the delivery of a bill ' Hodgson v. Gascoigne, 5 B. & A. 88. & A. 88. 5 TayUn- v. Lanyon, 6 Bing. * Cox V. Leigh, L. E., 9 Q. 536. B. 333. 6 Forster v. Coolcson, 1 G. & 3 SiseUy v. jRyle, 11 M. & D. 6K W. 16. ' Wharton v. Kaylor, 12 Q. * Modgaon v. Gascoigne, 5 B. B. 673. Digitized by Microsoft® EEJIOVESfG -WITHOUT SATISFYING YEAU'S BENT. 333 of sale by tlie sheriff, has been held not to be a removal of the goods within the meaning of the statute.^ It may be that the ffoods on the premises are inT 'Where not /v.- .-, T»-i n sufflcienton suincient to satisfy the years rent. If that be so, premises to the sheriff should, on notice from the landlord, with- lord, draw the execution. If he chooses to, seU, the Court win not stay proceedings against Tiim on paying over the proceeds of the sale.^ If the execution creditor, upon notice, refuses to satisfy the landlord's claim, the sheriff must not proceed to a sale. He should withdraw and return the facts.' The plaintiff should be prepared to prove the Evidence terms of the subsisting tenancy, the arrears of rent, the levy, notice before removal, and breach of duty, viz. the removing the goods and chattels without paying or satisfying the plaintiff the arrears. The foundation of the action is not the original taking, but the removing with notice of rent in arrear. It is enough to show that some goods were re- moved. The plaintiff need not show that enough to satisfy the rent was not left.* In the case of Harri- son V. Barry' it was held sufficient prima facie evidence to support the action to prove the occupa- tion by the tenant; and that it was for the sheriff then to show that the rent had been paid. If the rent be due under a lease in writing, it must be produced.* The damages are not limited to the amount pro- Damages. 1 SmalUnan v. Follard, ID. * CoUyer v. Speer, 2 B. & B. & L. 904. 67. 2 Foster v. Mlton, I Dowl. = 7 Price, 690. 35; and see 2 B. & Ad. 418. * Angerstim v. Challis, 1 ' Cocker T. Miisgrove, 9 Q. Exoh. 279, B. 234. Digitized by Microsoft® 334 BEMEDIES AGAIXST THE SHERIFF. duced by the sale;' for example, tlie plaintiff may show that the goods sold badly;* nor, on the other hand, are the jury bound to give so much as the sale priee.^ 1 Calvert t. Miffe, 2 B. & 3 Calvert t. Joliffe, 2 B: & Ad. 420. Ad. 422. 2 Foster v. ITj^^ra.lDoTvl.SS. Digitized by Microsoft® ( 335 ) CHAPTEE THE EIGHTH. ACTIONS BY THE SHEEEET. The sherifE has no claim at common Ism for fees.^ For fees. But by several Acts of Parliament and rules of Court; already cited, compensation has been given to him, together with the power to levy them over and above the sum recovered by the judgment, On the statute of 28 Eliz. c. 4 (containing no express words as to any remedy for them), 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 dutj', jnaLatain an action for them.^ A like construction may be put upon the 1 Vict. c. 66, and other statutes which do not, in express words, provide any pai-ticular remedy. Formerly the sheriff could not recover his charges for executing a fi. fa. by action against the attorney in the cause, unless there were special circumstances from which a jury could infer an actual undertaking by the attorney to pay them;* but a sheriff's officer, who had been employed by an attorney to execute writs for him, might maintain an action against the lattomey for the fees usually paid on such occasions. Now, however, the practice is for the solicitor acting jn the matter to be treated as the person primarily ' Dalt. eh. 119; Woodgate ^ rysowT.Par&j 2L.Raym. T. KnatehbuU, 2 T. E. 148; 12; /aymrav.JSMA, lSalk.209. Dexv V. Farsons, 2B.&A. 562. ■ * Maybery v. Mansfield, 9 Q. B. 754. Digitized by Microsoft® 336 ACTIONS BY THE SHEEIPF. liable, in the absence of circumstances establisWng a privity between the client and the sheriff's officer.' If a sheriff sell goods under a fi. fa. and pay over the proceeds to the execution creditor in ignorance of an act of bankruptcy committed by the defendant in the action, and the sheriff is afterwards compelled to pay the amount to the trustees, he may recover it from the execution creditor as money paid in igno- rance of facts,^ even although the latter after repay- ing the money cannot be placed in statu quo.' But this action is not maintainable without some demand or intimation from the sheriff that the money has been paid under such circumstances as to render it recoverable.* When the sheriff has duly seized goods under a fi. fa., he has such a special property in them as to enable him to maintain an action for injury done to them while they are in his possession;^ he is in a posi- tion similar to that of a factor who is under advances, and from whom the goods may be claimed back on payment of those advances, while at the same time he is answerable to the plaintiff for the value of them. If he abandon possession, the property and possession revert to the original owner ; and thus where an officer had seized a table in the name of all the goods in the house, and locked up his warrant in the table drawer and left the house, it was held that the sheriff could not maintain an action against the landlord who afterwards distrained them for rent.* If the sheriff return nulla bona, and there be a ' Brewer v. Jones, 10 Exch. * Freeman v. Jeffries, L. E., 655. Ex. 199. 2 Brydgea v. Walford, 6 M. « 2 "Wms. Saund. 47 a ; & S. 42 ; Crowder v. Zotiff, E. v. Emtall, 2 RusB. C. & M. 8 B. & C. 698. 158, 197. ' Standish v. Rosa, 3 Exoh. * Bladea v. Anmdale, 1 M. 527. & S. 711. Digitized by Microsoft® ACTIONS BY THE SHEEIIT. 337 recovery against him for a false return, no property is thereby vested in him. That remains as hefore ; and the goods are liable to any subsequent execution for the owner's debt.' "With respect to actions on promissory notes, bills of exchange, &c., seized by the sheriff under a fi. fa., it is enacted :- — " That by virtue of any writ of fieri facias to be sued out of any superior or inferior Court, or any precept in pursuance thereof, the sheriff or other officer having the execution thereof, may and shall seize and take any money or bank notes (whether of the governor and company of the Bank of England, or of any other bank or bankers), and any cheques, bills of exchange, promissory notes, bonds, special- ties, 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 seoiirities for money, as a secu- rity 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 sheriff or other officer for the recovery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived; and that the payment to such sheriff or other officer by the party liable on any such cheque, bill of exchange, promissory note, bond, specialty or other security, with or without suit, or the recovery and levying execution against the party so liable, shall discharge him to the extent of such payment 1 2 Vem. 239. 2 1 & 2 Vict. c. 110, s. 12. A. Z Digitized by Microsoft® 338 ACTION'S BY THE SHEEH'I'. or of such recovery and levy in execution as the case may he, 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 shaU 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 shaU remain in the hands of such sheriff or other officer, the same shall be paid to the party agaiast whom such writ Proviso as to shall be SO issued: provided that no such sheriff or sheriff. other officer shall be bound to sue any party liable upon any such cheque, bill of exchange, promissory note, bond, specialty or other security, unless the party suing out such execution shall enter into a bond, with two sufficient sureties, for indemnifying him from aU costs and 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." It would seem to be the duty of the sheriff to pre- sent, give notice of dishonour, and the like. Upon recovery of the amount, the sheriEP must pay over the whole, or so much as will satisfy the debt of the execution creditor. If any surplus re- main, after payment of the debt, poundage, and ex- penses, it must be paid over to the party against whom the writ issued. How amount of security to be disposed of. Bond of Indemnity for Suing on Bills, Sfc. Know all men by these presents that we G. A. of G. P. of ■ and 0. W. of in the county of W. are held and firmly bound to Sir G. M. Bart, of high aherifi of the Digitized by Microsoft® ACTIONS BY THE SHERIFr. 339 said ooiinty in the sum of £ to be paid to the said Sir G. M. Bart, or to his certain attorney executors administrators or assigns for Tirhioh payment to be weil 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 iirmly by these presents sealed with our seals and dated this &c. Whekeas the above-named Sir G. M: Bart, as sheriS of the county of by virtue of her Majesty's writ of fieri facias to him directed against the goods and chattels of one 0. D. issued at the suit of the said Gr. A. out of H.M. Court of Q. B., hath seized and taken in execution a certain promissory note ; and whereas the said G-. A. hath appKed to the said sheriff and requested him to sue the maker of the said note for the recovery of the amount thereof, which the said Sir G-. M. Bart, has con- sented to do upon being indemnified for so doing. Now THE coNDiTiou of the above-vsrritten obligation is such that if the above-bounden Gr. A., Gr. 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 Sir G. M. Bart, from aU 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 be void otherwise to remain in full force and effect. G-. A. (l.s.) Signed &c. G. P. (l.s.) C. "W. (L.S.) • z 2 Digitized by Microsoft® Digitized by Microsoft® INDEX. ABAJiTDONMENT, of possession, 194, 336. ABATEMENT, writ of, 222. ABROAD, solicitor going, loses privilege from arrest, 229. when defendant going, may be arrested, 257, 261. ACCOUNTS, at elections, 138. ACCOUNTS (SHERIFF'S), 279. mode of auditing, 279. bill of cravings, 281, 285. fine account, 281. mode of passing account, 283. Treasury warrant, 283. neglect to account, 284. form of sheriff's claim, 285. affidavit, 286. ACT OF BANKRUPTCY, effect of, on execution, 187. sale under execution against trader for 501. . .203. doctrine of relation, 305, 307. ACTION, by execution creditor to redeem prior title to land of debtor, 166. against sheriff, 293. against execution creditor for wrongful execution, 305. by sheriff, 335. ACTIONS AaAINST SHERIFF, 293. evidence to connect officer with sheriff, 296. admissions, 299. defence, 301. irregular writs, 301. return to writs, 301. notice of action not required, 302. Digitized by Microsoft® 342 INDJEX. ACTIONS AGAINST mERlFF—amtinucd. for ■wrongful execution, 303. acts of trespass, 303. conversion, 307. carrying to prison within twenty-four hours, 309. refusing bail, 311. false return, 312. negligence, 317. not arresting, 318. escape, 319. neglect as returning officer at elections, 322. money claims, 223. extortion, 325. removing without satisfying year's rent, 329. ACTIONS BT SHERIFF, 335. for fees, 335. for torts to goods in his possession, 336. on securities seized under a fi. fa., 337. ADJOURNMENT, of poll at elections ia case of riot, 121. ADMINISTRATOR. See Executor. goods of, not seizable for debt of intestate, 182. ADMIRALTY, appointment of coroners, 45. ADMISSIONS, of under-sheriff, bailiff, &e., when and how they affect the sheriff, 299. of execution creditor who has given an indemnity, how they affect him, 300. of debtor, when and how they affect him, 301. ADVERSE CLAIM, 152. See Interpleader. ADVOWSON, not extendible under an elegit, 217. AFFIDAVIT, for -writ de coronatore eligendo, 46. of extent, 247, 253. ne exeat regno, 261. under Interpleader Act, 156. on passing sheriff's accounts, 286. on application by sheriff to set aside attachment, 292. AGENTS AT ELECTIONS, for countiag votes, 125. personation, 134. candidates' expenses, 135. AID, extent in, 246. Digitized by Microsoft® INDEX. 343 ALIEN, appearance on interpleader, 154. not privileged from arrest; 229. AliLEGIANCE, declaration of, by sheriff, 19. ■under-sheriff, 27. bailiff, 32. coroner, 53. ALLOCATUR EXIGENT, 43. ALLOCATUK (Treasury), 283. AMBASSADOK, goods of, privileged from execution, 181. privilege from arrest, 227. punishment for arresting him or his domestic, 230. statute does not extend to consuls, 227. AMERCEMENTS, 290. ANNUITY, when seizable under a fi. fa., 180. APPARENT POSSESSION, when execution justified by, 186. APPEAL, on scrutiny on election of coroner, 52. on compensation oases, 71. does not operate as stay of execution, 198. APPOINTMENT, of sheriff, 18. form of warrant, 18. of under-sheriff, 24. deputy in London, 28. bailiff, 30. ARREST. See Attachment. how made, 226. privilege from, 227. aKeus, 229. married women, 230. effect of privilege, 230, 305. on crown process, 233. in ecclesiastical courts, 234. under writ of extent, 250. under arrest order under Debtors Act, 257. warrant, 258. security to plaintiff, 258. discharge, 259. misnomer, effect of, 260, 305. costs, 260. under ne exeat regno, 261. Digitized by Microsoft® 344 INDEX. ARREST — continued. under order of conunittal, 263. fees on, 271. action against sherifE for negligence, 317. escape, 319. ASSiaNMENT, of farming stock taken in execution, 181. of lease taken in execution, 197. of ships, 197. of tail bond, fee on, 271. ASSISTANCE, •writ of, 239. See Possession. ASSIZES, attendance of bailiff of liberty, 35. nature of sherifE's duties at, 88. execution of oon"vict, 89. ATTACHMENT, writ of, 223. when it lies, 22i. application for, 225. warrant, 225. in force for one year, 226. how executed, 226. privilege from arrest, 227. effect of privilege, 230. bail, 231. escape, 231. priority of writs, 232. discharge, 232. search for detainers, 233. return, 235. poundage, 235. for non-payment of instalments of debt, 263. fees on, 272. when it lies against the sheriff, 288. must be applied for promptly, 291. against late sheriff, 293. action for escape, 319. ATTORNEY. See Solicitor. ATTORNMENT, tenant by elegit may distrain without, 217- by tenant under hab. fao. poss. 242. AUCTION, sheriff's fees on sale, 272. AUDIT, of sheriff's accounts, 279. AUXILIUM VICE-COMITI, 11. Digitized by Microsoft® INDEX. 346 BAIL, under attaohment, 231. • outlawry, 237. extent, 250. fees on taking bond, and filing, 271. action for refusing, 311. BAILrPPS, 29. cannot buy their places, 25. appointment of, 27. qualification of, 29. ]midB of, 30. may raise the posse comitatus, 145. fees, 272. action for fees, 278. ■when sheriffl liable for their acts, 287, 293. relation between them and sheriff, how proved, 296. Crown Bailiff, 147. his duties as to the collection of fines, penalties, crown debts, 148. Bound Bailiff, 30. bond of, 30. declaration, 32. may, in some cases, sue attorney. for his fees, 278. action against, 295. relation between, and sheriff, 296. admissions by, how and when they affect sheriff, 299. action for escape, 319. Special Bailiff, 32. what amounts to an appoiatment of, 33. consequence of appointment of, 33. how far high sheriff liable for his acts, 33. Bailiff of a Liberty, 33. relation between him and sheriff, 34. . may act as sheriff's officer, 34. must make his return to the sheriff, 35. bond taken by him in the name of the sheriff, 35. attendance at assizes, 35. amercement for neglect in execution of process, 290. BAILIWICK, 8. BALLOT ACT, 99. ballot papers, 121. boxes, 122. BANK NOTES, seizable under fi. fa. 180. not seizable under elegit, 212. BANKRUPTCY, when it defeats execution against goods, 187. land, 219. notice of, towhom to be given, 18&. ■ execution against trader for bOl. . . 203. when ground of privilege from arrest, 228, 250. Digitized by Microsoft® 346 ETDEX. BARRISTER, ■whetlaer exempt from serving the office of sheriif, 13. privilege from arrest, 228. BENEFICE, not extendible under elegit, 213. BERWICK-ON-TWEED, appointment of sheriff, 7, 17. BILLINa SHERIFFS, 14. BILL OF CRAVINGS, 285. BILL OF EXCHAJSTGE, may be seized tinder fi. fa., 180. not on elegit, 212. action upon, by sheriff, 337. BILL OF SALE, when available against an execution, 185. is not a removal of goods -within 8 Ajine, c. 14 . . 332. BISHOPS, have acted as sheriffs, 14. executions agaiast ecclesiastical goods directed to, 172. BLANK WARRANT, arrest under, illegal, 289. BONA ECOLESIASTICA, cannot be taken under fi. fa., 178, 182. nor under elegit, 217. process against, directed to the bishop, 172. BONDS OR SECURITIES, from under-sheriff, 26. bailiff, 30. of indemnity for sellipg or vnthdravping under a fi. fa., 203. on executing Trrit of possession, 240, 243. of indemnity for suing on securities seized under a fi. fa., 338. ■wheii seizable in execution, 180, 212. action on, by sheriff,' 337. BOOTHS, _ at election of coroners, 48, 52. members of parliament, 105, 119. BOROUGHS, elections in, 139. BOUNDARY ACT, The, 5. BREAKING DOORS, of stranger's house, 191.' in executing fi. fa., 191. at suit of crown, 102. elegit, 212. capias utlagatum, 237. writ of possession, 240. remedy for, 303. Digitized by Microsoft® DTDEX. 347 BRECKNOCKSHIRE, sheriff's comity court, 40. BRISTOL, appointment of sheriff in, 7, 17. CAERMAETHEN, appointment of sheriff, 7, 17. CAMBRIDGESHIRE, sheriff's salary, 10. CAMPBELL'S ACT, LORD, 59. CAiiTTERBIIRY, appointment of sheriff, 7, 17. CAPIAS, 257. See Amst. CAPIAS AD RESPONDENDUM, 265. CAPIAS AD SATISEACIENDUM, 223. when issued, 224. ho"w executed, 225. See Attachment. on crown process, 233. fees on, 272. damages in action for escape, 320. CAPIAS UTLAaATUM, 236. See Outlawry. form of writ, 43. mquisition on, 43, 237. return, 43. fees on, 272. liability to year's rent, 331. CEP! CORPUS, return of, 235. CERTAINTY, required in returns, 314. CERTIFICATE, of payment under order of committal, 264. CERTIORARI, to quash inquisition in compensation cases, 63, 72. CHALLENGE. &ee Jurij. right of, in compensation oases, 64, 68. CHAMBERS, in inns of court to be treated as dwelling-houses, 191. Digitized by Microsoft® 348 INDEX. CHAKGINa ORDER, on land, 166. stock, 172. CHATTELS, seizable under fi. fa., 178. elegit, 211. lev. fa., 222. ea. utl., 237. extent, 246. when fixtures included, 185. CHEQUES (BANKER'S), seizable under a fi. fa., 180. not under an elegit, 212. action upon, by sheriff, 337. CHESHIRE, a county palatine, 5. sherifE's county court, 40. CHESTER, appointment of sheriff in, 7, 17. election of coroner, 51. criminal executions, 91. CHOSE IN ACTION, when seizable, 180, 216. CINQUE PORTS, by whom writs executed in, 7. coroners in, 45. CITIES, sheriffs of, 7, 17. when sheriff to act as returning officer, 139. CLERGYMAN, when privileged from arrest, 229. CLERK, solicitor's, not privileged from arrest, 228. CLERK OF THE MARKET, 84. CLERK OF THE PEACE, must file appointment of sheriff, 19. declaration of office, 19. under-sheriff, 24. coroner, 53. deliver list of voters to sheriff, 53. file judgments of compensation courts, 66, 73. COLLEGE ROOMS, to be treated as dwelling-houses, 191. Digitized by Microsoft® INDEX. 349 COLLUSION, "on application, under Interpleader Act, 155. to set aside attachment^ 292. by baUiff, a defence in action against sheriff, 299. COMMISSIOliTERS, their precepts, when executed by the sheriff, 85. COMMITTAL, order of, 172. for contempt, 225. under Debtors Act, 262. warrant, 262. how executed, 263. certificate and discharge, 264. fees on, 272. escape from custody, 319. COMPANIES ACT, 196. COMPENSATION COITRT, 60. statutes relating to, 61. notice to treat, 61. warrant, 62, 72. jury, 63. place of holding court, 63. notice of, 63, 73. who plaintiff, 64. witnesses, 64, 73. view, 64, 73. claimant not appearing, 65. damages, how assessed, 65. verdict and judgment, how given, 66, 73. costs, 66. special jury, 67. who entitled to compensation, 68. appeal, 71. certiorari, 72. COMPUTATION OF TIME, for purposes of Ballot Act, 133. fractions of day in execution of process, 175. CONSUL, not privileged from arrest, 227. CONTEMPT OE COURT, attachment for, imtouohed by Debtors Act, 225. against sheriff, 288. late sheriff, 293. CONTIBIACE CAPIENDO, writ of, 234. CONVEESION, remedy against sheriff, 307. by sheriff, 336. Digitized by Microsoft® 3/50 INDEX. CONVICTS, execution against, 173. COPYHOLD LAJSTDS, efEeot of judgment on, 164. extendible under an elegit, 213. not seizable under ca. utl., 237. COEN, ■when seizable under fi. fa., 180. See Crops. COENWAiL, sherifE of, by whom and when appointed, 16, 18. COKONEK, effect of his being made sheriff, 13. outlawry, 40. Mnds of, 44. qualification of, 45. number of, 45. how chosen, 45. determination of office, 45. deputy, 45. districts of, 45. how to obtain writ, 46. election, notice of, 47. time and place, 47. duration of poll, 48. poll clerks, 49. proceedings at poU, 49. scrutiny, 52. sheriff's decision final, 62. declaration of office, 53. return to writ, 53. duties at county court, 40. compensation court, 62. jury, how summoned, 84. inquest after execution of convict, 93. fees when acting for sheriff, 278. execution of attachment against sheriff, 292. COSTS, imder Compensation Acts, 66. on interpleader, 158. under arrest order, 260. treble costs, 326. COUNSEL, costs of, on writ of inquiry, 55. COUNT AND VISCOUNT, 2. Digitized by Microsoft® INDEX. 351 COUNTY CLERK, 25. COUNTY COURT, 38. sherifB's duties tliere, in general, ministerial, 39. , when a court of record, 39. style of, 39. time and place of holding, 39. outlawry, 40. for election of coroner, 44. COUNTY OR SHIRE, definition and division of, &o., 1, 4. judicial notice of, 4. sheiafB sometimes has more than one under his charge, 5. number of, 5. COUNTY PALATINE, names of, 5. how and when created, 5, 7. by and of whom held, 6. sheriff of, how he differs from other sheriffs, 7. execution of writs in, 7. COURTS, county, 38. for election of ooroiier, 44. luider writ of inquiry, 54. compensation, 60. assizes, 88. / parliamentary election, 140. COVENTRY, has no longer a sheriff, 17. CRAVINGS (BILL OP), 281, 285. form of, 285. afH.davit in support of, 286. CROPS, GROWING, seizable vmder a fi. fa., 180. when hable to distress after sale in execution, 202. under writ of possession, 242. CROWN, cannot be made party to interpleader, 154. to have precedence in executions, 174. not prejudiced by the laches of its officers, 174. CROWN BAILIFE, 147. CROWN DEBTS, 148. CUMBERLAND, no bound bailiffis in, 29. CUSTODIA LEGIS, things in, cannot be seized under a fi. fa., 184, when liable to distress for rent, 202. when may be seized under an extent, 251. Digitized by Microsoft® 352 INDEX. CUSTOMAEY LANDS, effect of judgmeiit upon, 164. extendible under an elegit, 213. not imder fca. utl., 237. DAMAGES, how assessed on writs of inquiry, 57. under Lord Campbell's Act, 59. PubMo Companies' Compensation Acts, 65. nominal, for escape under ca. sa., 320. iu actions for wrongful execution, 306, 308. false return, 316. negHgence, 322. extortion, 326. removing without satisfying rent, 333. DAY, when fraction of, may be inquired into, 175. DEATH, sentence of, how, when, and where carried out, 89. of sheriff, effect of, ,17; 313. of coroner, 45. of party charged in execution, 167. of defendant does not prevent issuing of attachment against sheriff for contempt ui course of the action, 291. DEBTORS ACT, 1869.. 223. See ^cm^.. DEBTORS' PRISON, custody of, 36, 320. DEBTS (CROWN), 246. See Mxtcnt. sheriff's duties as to, 148. DECLARATION OE OFFICE, by sheriff, 19. by under-sheriff, 27. by baiUff, 32. by coroner, 63. DE CONTUMACE CAPIENDO, vpiit, 234. DE CORONATORE ELIGENDO, writ, 47. return to, 53. DELIVERY, writ of, 244. DELIVERY IN EXECUTION, 166. DELIVERY OF "WRIT TO SHERIFF, 28, 175. effect of, 167. Digitized by Microsoft® htdex. 353 DEMAND, before breaking doors, 192. by execution debtor for surplus in sherifiB's hands, 204, 328. before action for money received, 328. in action by sheriff for money paid in mistake, 336. DEMISE OF THE CROWN, effect of, on sheriff, 20. coroner, 45. DENBIGHSHIRE, sheriff's county court, 40.. DE NOCUMENTO AMOVENDO,- -smt, 222. DEPOSIT, ? of security by party arrested, 258. DE PR^RGGATrVA REGIS, 149. DEPUTATION, fee on, 273. DEPUTY, at common law, 24. under-sheriff is general deputy, 27. ■when sheriff ma.y appoiat, 24. when under-sheriff may appoint, 27. sheriff's deputy in London, 28. on writ of inquiry, 55. , on compensation court, 60. on execution of judgment of death, 94. DETAINER, 227. action for wrongful, 306. DETERMINATION OF OFFICE, of sheriff, 9, 19. coroner, 45. DE VENTRE INSPICIENDO, 264. DISABILITIES, from of&oe of sheriff, 11. DISOHAUGE FROM ARREST, under attachment and ca. sa., 232. arrest order, 259. order of committal, 264. fees on, 275. DISSENTER, 11. DISTRESS, goods in, when liable to execution, 184, 251. after sale under execution, 202. A. A A Digitized by Microsoft® 354 INDEX. DISTRINGAS, 222, 265. to outla-wTjr abolished, 40. on jury process, abolished, 80. stock, 172. indictments against inhabitants, &o., 266. fees on, 272. against bailiff of Kberty, 290. DOORS. See Breaking Doors. DOVER, execution of imts in, 7. DURHAM, how held, 5, 25. DWELLINa-HOUSE, 191. See SreaMng Doors. EARL, 1. EARNINGS, of married -women protected from execution against husband, 183. ECCLESIASTICAL COURTS, process of arrest, 234. ECCLESIASTICAL GOODS, execution against, 172. EJECTMENT, execution on judgment in, 239. ELECTION. See Coroner, Sheriff, Men\her of Farllament, i-c. ELECTION PETITION COURT, 140.. ELEGIT, writ of, 171, 210. equitable interest, how dealt with under, 166. warrant, 211. how executed, 212. inquiry under, 212. priority of writs, 213. what extendible under, 213. what not, 216. must be returned, 217. effect of return, 217. litidlord's claim for rent, 218. effect of bankruptcy, 219. poundage, 219. returns to, 219. inquisition, 220. fees on, 272, 274. Digitized by Microsoft® INDEX. 355 ELISORS, 8, 289. ELY, appointment of coroners, 45. ENTRY, of liberty by sheriff, 34. tenant by elegit, 166, 217. EQUITABLE INTEREST, delivery of, in execution, 166. not seizable under a fi. fa., 184. an elegit, 216. EQUITY OF REDEMPTION, delivery of, in execution, 166. not seizable under a fi. fa., 184. an elegit, 216. ERRONEOUS PROCESS, justification under, 174, 301, 306. escape, 321. ESCAPE, 231. recaption may be on Sunday, 226. liability of sheriff ia general for, 319. from prison, 320. several writs, 321. erroneous process, 321. remedies for, 321. measure of damages, 322. ESTREAT OE EINES, by whom made, 148. EVIDENCE, to fix sheriff for the acts of his officers, 296. admissions of ofScers, 299. in actions for wrongful execution, 304, 308. false return, 315. negligence, 319. extortion, 326. removing without satisfying rent, 333. EXCESS, of levy how recovered, 327. EXCHEQUER, nomination of sheriffs in, 15. EXECUTION (CIVIL), 169. _ on judgment in compensation court, 66. writs of, at common law, 170. writs of, by statute, 170. within what time it might issue at common law, 170. by statute, 173. A A 2 Digitized by Microsoft® 356 IKDEX. ■ . EXECUTION (OTVIL)— continued. for delivery of specific goods, 171. for payment of money into court, 171. for recovery of land, 171. in other cases, 172. stock and shares, 172. ecclesiastical goods, 172. against husband and wife, 172. partners, 172. on joint judgment, 173. against convicts, 173. crown executions to have precedence, 174. writs grounded on and must accord with the judgment, 174. iiling prsecipe, 174. shenS to execute writs, 174. action for maliciously issuing execution, 175. sheriff must notice all liberties, 176. must know person of every inhabitant, 175. must receive vprits and endorse date of delivery, 175. returns generally, 175, 313. time of, 175. Sunday, 175. posse comitattis, 175. by baiHfis, 176. warrant, 176. must contain copy of indorsement of writ, 176. date of writ, 176. poimdage and expenses may be levied, 176, 199. interest, 176. renewal of writ, 176. when wrongful, action for, 303. negligent, action for, 317. escape from, 319. action for return of money wrongfully taken, 327. EXECUTION (CE.IM1NA1), 89. * sheriS's authonty, 90. time of execution, 90. place of, 91. by whom, 91. where, 91, 92. sheriff must be present, 92. certificate of death, 92. declaration, 93. coroner's inquest, 93. burial, 93. penalty for false certificate or declaration, 94; hangman's authority, 95. reprieve on ground of pregnancy, 95. insanity, 96. EXECUTOR, when goods of, seizable under a fi. fa., 182. may maintain action for false return, 316. Digitized by Microsoft® INDEX. 357 EXEMPTIONS, from ofBLoe of sheriff, 11. EXETEE, appointment of sherifp, 7, 17. EXIGI FACIAS, 40. returns to, 42. EXPENSES, of election of coroner, 50.. of parliamentary election, 135. EXTENT, 246. kinds of, 246. when issued, 247. atadavit of danger, 247, 253. must be for debt of record, 249. how executed, 249. arrest, 250. seizure of goods, 250. inquiry, 251. priority of writs, 252. poundage, 252. sale, 252. liberate, 254. return, 255. fees on, 272, 274. EXTORTION, what, 325. remedies for, 325. FALSE EETURN, attachment for, 291. action for, 312. EABMING, of office illegal, 25. FARMING STOCK, when seizable imder fi. fa., 180. FEES, of poU clerks at election of coroner, 51. of sheriff on parliamentary election, 136. at common law, 267. by statute, 268. table of, 270. how recovered, 277. who liable, 278. coroners when acting for sherifi, 278. action for, 335. Digitized by Microsoft® 358 INDEX. FEIGNED ISSUE, under Interpleader Act, 158. costs of, 169. PELON'S PEOPEETT, forfeiture of, abolished, 89. FEMALE, office of sheriff executed by, 10. FEME COVERT. See Husband and Wife. FI. FA., ■writ of, 177. what can be seized, 178. ■what cannot, 181. bills of sale, 185. effect of bankruptcy, 187. priority of ■writs, 188. fraudiient judgments, 190. time of executing, 190. breaking doors, 191. seizure, 192. conflict of executions^ 193. abandoning possession, 193. seizure of goods in hands of executor, 182. goods df husband for debts of -wife, 183. growing crops, 180. partnership property, 195. property of joint stock companies, 196. ships, 197. a lease for years, 197. quantity of goods to be seized, 194. sale, 194. to judgment creditor, 195. / effect of, 195. venditioni exponas, 194. cannot be executed after directions not to do so, 198. form of return to that effect, 208. judgment reversed, 198. stay of proceedings, 198. amount to be levied, 199. poundage on, 199. fees on irregular -writ, 201. landlord's rent, 202. taxes, 202. crops liable to distress after sale, 202. execution against trader for sum exceeding 50/. . . 203. to whom payment may be made, 204. execution after payment, 204. what to be done ■with surplus, 204. returns to, 205. fees on, 272. proceedings on bills of exchange, &c., seized under, 337. Digitized by Microsoft® INDEX. 359 FINES, levy of, 148. acooimt of, 281. FIXTURES, when seizable under fi. fa., 179. when not, 184. when treated as personal chattels, 185. FOREIGN OFFICE, list of persons privileged from execution, 182, 231. FORFEITURE, of office, 9. of goods on outlawry, 42. for treason and felony, 89. FRANCHISE, 8. See Liberty. FRAUDS, STAT. OF, efiect of delivery of writ to sheriff, 167. FRAUDULENT ASSIGNMENT, 185, 304. FRAUDULENT JUDGMENT AND EXECUTION, when sheriff bound to sell under, 190. FREEHOLDS, not seizable under a fi. fa., 178. extendible under elegit, 213. can be seized under a ca. utlagatum, 237. an extent, 249. FRUCTUS INDUSTRIALES, seizable imder fi. fa., 180. GAOLER, 36. farming office, illegal, 25. custody of prisoners, 36, 320. GARNISHMENT, 169. GLOUCESTER, appointment Cf sheriff, 7, 17. GOODS AND CHATTELS. See CJiatteU. GRAND JURY, 74. qtiaHfication, 75. number summoned and sworn, 75. GROWING CROPS, seizure of, 180, 184, 202. Digitized by Microsoft® 360 INDEX. HABEAS COEPUS,_ may be executed in any county, 8. on jury process, abolished, 80. HAB. PACPOS, 239. See Fossession, writ of. HANG-INa, 89. See JSxeaition. HASTINGS, execution of -writs in, 7. , HAVEEFOEDWEST, appointment of sheriff, 7, 17. HEEEDITAMENT, definition of, 214. HOUSE, 191. See BreaJdng Doors. HuirTrNGDONSHIEE, incorporated -with Cambridgeshire, 5. HUSBAND AND WIEE, execution where judgment is against both, 172. ■wife's property, when seizable for husband's debt, 182. husband's property, when seizable for debts of wife, 183. when property of woman cohabiting with a man may be taken for his debt, 183. escape of one when both arrested, 321, HUSBANDRY UTENSILS, when seizable under fi. fa., 179. HUSTIN(pl-S, 40. See Outlawry. HYTHE, execution of writs in, 7. IPENTITT, oath of, at elections, 108. IMPEISONMENT, 223. See AttaeJimmt. INDEMNITY, from under-sheriff, 26. bond of, for selling under fi. fa., 208. delivery under writ of possession, 243. suing on bills, &o. seized under fi. fa., 338. fees on, 273. INDldTMENT OE INTOEMATION, when it lies against sheriff, 287. Digitized by Microsoft® INDEX. 361 INDORSEMENT OF "WRITS, by sheriff, 175. party, 176. copy of, on warrant, 176. on order of arrest, 258. committal, 263. of name of officer on warrant, 296. INQUIRY, 54. See Writ of Inqitinj. under li. fa., 199, 316. elegit, 212. capias utlagatiun, 237. « extent, 251. fees on, 273. INQUISITION, under compensation acts, 65, 73. in outlawry, 43. on elegit, 220. extent, 255. fees on, 273. INSAITITT, a cause of reprieve, 96. INSURAJS'CE, poUoy of, for benefit of wife, not seizable for debt of husband, 183. INTEREST, when leviable, 176. in land, how delivered in execution, 166. not extendible xmder elegit, 216. INTERPIiEADER, 150. provisions and object of the Interpleader Act, 151. in what cases relief will be granted, 152. not be granted, 153. the crown cannot be a party to an interpleader rule, 15'^, nor can a foreigner residing abroad, 154. application to be made to court, judge or master, 155. within what time, 155. affidavit in support of, 155. collusion, 155. appearance of parties on summons, 156. who can appear, 156. proceedings on, hearing of rule, 157. barring claims on non-appearance, 157. summary settlement, 157. feigned issue, 158. costs, 158. remedy for, 161. poundage, 162. IRREGULAR PROCESS, sheriff bound to execute, 174. when a justification to sheriff, 174, 301, 306. escape, 321. Digitized by Microsoft® 362 , INDEX. ISSUE, PEiaNED, Tinder Interpleader Act, 158. ISSUES, due to the crown, how levied, 148. on idistringae, 266. JAVELIN MEN, 88. cost of, 285. JOINT JUDGMENTS, execution on, 173. JOINT STOCK COMPANIES, execution against, 196. JUDGE'S LODGINGS, 88. JUDGMENT, 163. effect of, at common law, 163. under Westm. 2, Stat, of Frauds, and 1 & 2 Vict. c. 110. 163. upon lands and chattels real, 164. from what time it binds lands, 164. registration of writs, 164. order for sale of land, 165. notice to other creditors, 165. " delivery in execution," 166. equitable interest, 167. from what time judgment binds goods and chattels, 167. meaning of term "bound," 168. entry of, 168. Judgments Extension Act, 169. execution on, 170. JUDICIAL ACTS, sheriff not liable to action for, 293. JUEISDICTION, effect of want of, on execution, 301. JURY, on writ of inquiry, 54, 55. in compensation courts, 63, 67. penalty for default, 64, 65. special jury in compensation courts^ 67. challenge, 68. different kinds of, 74. at assizes, how and when summoned, 76. grand jurors, 74. common jurors, 76. number, and how to be summoned, 76. in criminal oases, 76. treason, 76. Digitized by Microsoft® 363 JUKY — contimted. special jurors, 77, 79. Juries Act, 1870.. 78. jurors entitled to six days' notice, 79. notice to sheriff to summon special jury, 79. view, 80. how summoned, 84. matrons, 84, 95. on lunacy inquiry, 84. coroner's jury, 84. clerk of the market, 84. commissioners, 85. warrants to baiMs, 86. return to precept, 87. sheriff's fees, 275. penalty for neglect in summoning, 287. taking reward for sparing, 325. JUSTICE OF PEACE, not to exercise office during shrievalty, 13, 145. JUSTICIES (WEIT OE), 39. KINGSTON, appointment of sheriff in, 7, 17. LACHES, when sheriff discharged by plaintiffs, 291, 328. effect of sheriff's, in action at suit of creditor, 300. LANCASTER, how held, 6. LAND, what, 214. effect of a judgment upon, 164. interest in, how delivered in execution, 166. sheriff not bound to know debtor's laud in his bailiwick, 240. what seizable under elegit, 213. oa. utlagatmn, 237. extent, 249. LANDS CLAUSES CONSOLIDATION ACT, 61. LANDLORD'S BENT, claim for, under fi. fa., 202. elegit, 218. capias utlagatum, 238. extent, 251, 331. sequestration, 331. notice must be given of his claim before removal, 330. sheriff's duty in case there is not sufficient to satisfy year s rent, 333. remedies for removing without satisfying rent, 329. Digitized by Microsoft® 364 INDEX. LEASE FOE TEAES, effect of judgment upon, 167. may be treated either as land or chattels under elegit, 213. heir seizable under fi. fa., 197. elegit, 213. V ca. utl., 237. extent, 249. LEVARI EACIAS, 170, 222. in outlaTpry, 238. fees on, 272. LEVY, under fi. fa., 199. action against sheriff for not leTying, 315. LIBERATE, imder extent, 254. fees on, 275. LIBERTY, what, 8. officially noticed by the courts, 8. bailiff of, 33. . attendance of bailiff at assizes, 35. sheriff bound to notice, 175. LICHFIELD, appointment of sheriff, 7, 17. LIEN, right of, not seizable in execution, 185. LINCOLN, appointment of sheriff, 7, 17. LIST, of writs, &c. transferred by old to new sheriff, 21. of voters at election of coroners, 53. LODGINGS (JUDGE'S), sheriff to provide, 88. LODGER, breaking open door of, 192. See Breaking Doors. LONDON, sheriffs of, how elected, 7, 17. coroners, 45. LUNACY, jury on inquiry, 84. MALICE, action for malicious execution, 175. MANDAMUS, against company imder Compensation Acts, 63. to compel sheriff to empanel a jury, 68. Digitized by Microsoft® INDEX. 365 MANDAVI BALLrVO, return of, 208. MAEEIED WOMEN, 182. See Susiand and Wife. MATRONS. (JXIRT OF), 84, 95. MEMBER OF PARLIAMENT, vhen exempt from of6oe of sheriff, 13. Froceedmgs relating to Election of, 96. duties of sheriff, 96, 113. •writs, 97. transmission of, 98. sheriff's duties on receipt of, 99, 113. nomination of candidates, 99, 115, 118. poll at elections, 101, 117, 119. offences at elections, 102. infringement of secrecy, 103. division of counties into polling districts, 104. use of school and puhHo room for poU, 105. register of voters, 105. duties of returning officer, 105. expenses, 106. depaty returning officer, 106. keeping of order in station, 106. presiding officers, 106, 121, 123. oaths, 107. penalty for misconduct, 108. prohibition of disclosure of vote, 108. effect of non-compliance with rules, 108. use of municipal ballot boxes, 109. personation, 110. bribery, 112. rules under Ballot Act, 113. election, notice of, 113. time of, 114. place of, 116. hours of, 115. polling stations, 119. directions to voters, 120. baUbt papers, 121. boxes, 122. counting votes, 125. inspection of rejected ballot papers, 129. return of -writ, 131. . declaration of secrecy, 133. agents, 133, 134. statement of candidates' expenses, 135. sheriff's charges, 136. security for, 137. sheriff as returning officer for borough, 139. parKamentary election court, 140. privilege from arrest, 227, 230. action for neglect as returning officer, 322. Digitized by Microsoft® 366 DTDEX. MERCANTILE LAW AMENDMENT ACT, 168. MESNE PEOCESS, arrest on, 257. , MESSENQER, fees of, 272. MIDDLESEX, held by Mayor of London, 5, 6. MILITIA OEEIOEE, when exempt from serving the office of sheriff, 11, 20. MINISTERIAL ACTS, may be executed dehors the county, 9. sherifE liable for acts of officer, 294. MISCONDUCT, sheriff may be removed for, 20. MISEEAZANCE, action against sheriff for, 293. officer, 295. MISNOMER, effect of, in orders of arrest and committal, 260, 305. MONEY, may be seized imder a fi. fa., 180. but not und.er an elegit, 212, 216. action against sheriff for money had and received, 323. MONMOUTHSHIRE AND MONTGOMERYSHIRE, sheriff's county court, 40. MORTGAGE, land in, not extendible under elegit, 216. NE EXEAT REGNO, 260. fees on, 272. action for refusing bail, 311. NEGLIGENCE, action for, 317. NEWCASTLE, appointment of sheriff, 7, 17. NEW SHERIFF, ■relation in wMoh he stands to old sheriff, 20. Vhen his duties commence, 21. transfer of writs to, 21. not liable for negligence of predecessor, 294. NEW TRIAL, under Railway Compensation Acts, 71. Digitized by Microsoft® INDEX. 367 NOBILITY, not exempt from serving as sheriff, 14. NOMINATION, of sheriffs, when, by whom, and how made, 14. in counties palatine, 16. case of death, 16. certain cities, 17. of members of parliament, 99, 115, 118. NON EST INVENTUS, return of, 235. NONEEAZANCE, who liable for, 295. NON OMITTAS CLAUSE, 34. NOETHUMBEELAND, sheriff's county coui"t, 40. NORWICH, appointment of sheriff, 7, 17. NOTES (PEOMISSOET), seizaole under fi. fa., 180. not under elegit, 212. action on by sheiiff, 337. NOTICE, of election of coroner, 51. of holding writ of inquiry, 54. to treat under Compensation Acts, 61. of trial under ditto, 62. by sheriff, 63, 73. to jiirors, 79. to sheriff to summon special jury, 79, 87. of parliamentary election, 113. of poll at election, 117. of result of election, 131. of trial of election petition, 141. of act of bankruptcy, 188. of writ unexecuted in hands of sheriff, 188. of the existence of covenants between landlord and tenant, 181- of landlord's claim for year's rent, 202, 330. of executing elegit, 213. See Elegit. of proceeding upon extent, 252. See Extent. of action, sheriff not entitled to, 302. NOTTDSraHAM:, appointment of sheriff, 7, 17. NULLA BONA, return of, to fi. fa., 205. elegit, 219. Digitized by Microsoft® 368 INDEX. OATH, of ofEoe. See Declaration. relating to sherifE's aecoimts, 280. OFFICER (MILITAET), . ,. „ ^ in the army and navy, when exempt from serving the office ot ' sheriff, 12. OFFICERS (SHERIFF'S), when sheriff liable for their acts, 293. actions against, 295. how relation between them and sheriff proved, 296. ■ admissions by, how and when they affect sheriff, 299. OLD SHERIFF, relation to new, 20. transfer of writs and prisoners on going out of office, 21. attachment against, 293. ORDER OF ARREST, 257. See Arrest. ORDER, OF COMMITTAI/, 262. See Committal. ORDER OF DISOHAUaE. See Discharge. OUTLAWRY, 40. judgment, form of, 41. by whom given, 41. on crown process, 234. proceedings in, 236. inquiry, 237. dealing with proceeds, 238. poundage, 239. fees on, 272, 274. OXFORD, appointment of sheriff, 17. PALACE (ROYAL), effect of arrest within, 226. PALATINE, 7. See' Comtij Falatine. PANEL (JURY), at assises, 76, 87. to be delivered to pei'son indicted for treason, 77. of special jury, 78. , sheriff's fee, 276. PARLIAMENT, 96. See Members of rarliamcnt. privilege from arrest, 227. ' PARLIAMENTARY ELECTION COURT, 140. PARTNERS, execution against, 172. goods of, how seized and sold under.a fi. fa., 195. Digitized by Microsoft® INDEX. 369 PAWNED GOODS, seizure and sale of, 185. PAYMENT, by debtor to sheriff under fi. fa., 204. process against the person, 321. PEER, not excluded from serving as sheriff, 14, privilege from arrest, 227. effect of arresting, 230. PENAL STATUTE, sheriff's liability on, 294. PENALTIES, on sheriff of London for not making declaration of office, 19. for farming offices, 25. for delivering warrant before receipt of writ, 28. on bailiff for not making declaration of office, 32. on sheriff for default on compensation court, 64. on jury for ditto, 64. on sheriff for not retTiming coroner's jury, 84. on sheriff for non-attendance, &o. at assizes, 88. for signing false certificate of execution of convict, 94. on sheriff for misconduct at elections, 108. not levying fines, 149. neglect in summoning juries, 287. extortion, 326. actions for, 294. for carrying to prison vpithin twenty-four hours, 311. for refusing bail, 311. PERSONATION, offence of, at elections, 110. PETITION, for coroner's writ, 46. POCKET SHERIFF, what, 17. POLICY OF INSURANCE, for benefit of wife, not seizable for debt of husband, 183. POLL, at election of coroner, 48, 52. parliamentary election, 101, 117, 119. POLL BOOKS, SO. See Coroner. Memiers of Parliament. POLL CLERKS, 49. See Coroner. Members of Parliament. POOLE, appointment of sheriff, 7, 17. POSSE COMITATUS, 142. A. B B Digitized by Microsoft® 370 INDEX. POSSESSION, -writ of, 171, 239. ■warrant, 239. how executed, 240. disturbance, 242. return, 243. poundage, 243. fees on, 272. POTINDAaE, effect of interpleader on, 162. may be levied over and above the sum recovered, 176, 199 onfi. fa., 199. elegit, 219. attachment and ca. sa., 235. capias utlagatum, 239. ■writ of possession, 243. extent, 252. remedies for, 277, 335. PRECIPE, on issuing ■writ of execution, 174. PE^ROGATIVA EEGIS (Stat, of), 149. PEEGNANCT, ■when a stay of execution, 95. PKESIDESra OFFICERS, duties of, at elections, 106, 121, 123. PRICKING SHERIFFS, 18. PRIORITY OP WRITS, 177. fi. fa., 188. superior court and county court, 193. elegit, 213. PRISON, carrying to, ■withia twenty-four hours after arrest, 258, 309. sherilf not liable for escape from, 320. PRISON ACT, 1877. .21, 36, 89, 320. PRISONER, may be fetaken dehors the county, 9. custody of, 36, 89, 320. execution of, 36, 89. detainer of, 227, 306. PRIVILEGE, from execution under fi. fa., 178. from arrest, 227. effect of, 230. remedies for breach of, 230, 305. Digitized by Microsoft® INDEX. 371 PROCLAMATION, writ of, on allocatur exigent, 43. of assizes, 86. at election of coroner, 51, 53. member of parliament, 65. under Eiot Act, 147. PEOMISSOET NOTES, seizable under fi. fa., 180. not under an elegit, 212. action upon by ^eriff, 337. PROPERTY, effect of judgment in passing, 167. seizure in execution, 193, 336. abandonment, 194, 336. sale in execution, 195. . Avliat necessary to support action for ■wrongful execution, 307. sheriff's inquisition as to, 316. QTJALrPICATION, of sheriff, 10. land, 10. dissenters, 11. militia of&oers, 11. stewards, 12. judgment debtors, 12. solicitors, 12. barristers, 13. members of parliament, 13. justice of peace, 13. pobility, 14. bailiffs, 29. coroners, 13, 45. voters for, 53. jurors, 75. QU^OITER SESSIONS, under-sheriff not to practise at, 24. duties of bailiff of liberty at, 36. duties of sheriff at, 74. recovery of fines, 149. QUESTIONS, at elections, 107. QUILLET, 5. QUI TAM, action, 294. QUO WARRANTO, agaiust coroner, 53. B B 2 Digitized by Microsoft® 372 nrnEls:. EADNORSHIEE, sheriff's county court, 40. RAILWAY COMPENSATION, 60. See Compensation Court. REAL PEOPEETT, execution against, 213, 239, 246. EEOAPTION, 321. may be on Sunday, 226. EECOGNIZANCES, 148, 224. EECTOEY, extendible under elegit, 211. EEDEMPTION, delivery of equity of, in execution, 166. not extendible under elegit, 216. EEQISTEE, of voters, 105. EEGISTEATION, of voters, 105, 111. of judgments, 164. of writs, 164. of bills of sale, 186. EELATION, doctrine of, 305, 307. EEMAINDEE EXPECTANT, not extendible under elegit, 216. EEMEDIES AGAINST THE SHEEIFF, by indictment, 287. by attacbment, 288. by action, 293. for wrongful execution, 303. for false return, 312. for negligence, 317. for escape, 319. for negfigence as returning officer at elections, 322. for extortion, 325. for removing goods without satisfying landlord's rent, 330. EEMOVING WITHOUT SATISFYING YEAE'S EENT, when sheriS liable to action for, 329. what is a removal, 332. EENEWAL OP WRITS, 176. EENT, landlord's claim for, under fi. fa., 202. elegit, 218. outlawry, 238. tenant by elegit may distrain for, without attornment, 217. action for removal without satisfying, 329. Digitized by Microsoft® iifDEx. 373 KENT CHARGE, seizable under fi. fa., ISO. EjEPLEVESr, 39. EEPEIEVE, 95. pregnancy, 95. insanity, 96. EESCUE, 142. See Fosse Comitatm. RESrOENCE, of sheriff, need not be withia his bailiwick, 9; royal, privileged from executions, 191. RESTITUTION, where too much is seized under a fi. fa., 204. writ of possession, 242. action for, 327. RETURNING OFFICER, 139. RETURN TO WRITS, by special bailiff, 35. to exigi facias, 42. to capias utlagatum, 43. to writ for election of coroner, 53. to writ of inquiry, 60. to precept to summon jury, 87. to writ for election of member of parliament, 131. to process issued by clerk of the peace, 149. no writ, except elegit, need be returned or filed, 175, 312. fi. fa., 205. elegit, 219. attachment and ca. sa., 235. writ of possession, 243. extent, 255. fees on, 275. when necessary, 301, 312. when sheriff estopped by, 302, 315. rules to return, 313, 324. remedy for false return, 315. by. coroners, 313. by under-sheriff in case of death of sheriff, 313. new sheriff may return process directed to old sheriff, 313. must not contradict former return, 314. falsify record, 314. amendment of, 315. remedy for not makiug, 313. false return, 312. REVERSAL OF JUDGMENT, 198. REVERSION, extendible on elegit, 213. Digitized by Microsoft® I 374 INDEX. REVISING BAERISTEE, 58. EIOT ACT, 146. EOLL, nomination of sheriffs, 17. ROMNBT, execution of Tvrits in, 7. EOYAL RESIDENCE, privileged from execution, 191. RULE, to return writ, 313, 324. RYE, incorporated with cinque ports, 8. SALARY, of sherifi, 10. SALE, hills of, 185. effect of, under fi. fa., 187, 195. payment by debtor to sheriff, 204. under elegit, 212. distrhigas, 222. outlawry, 238. extent, 252. by auction, fees on, 272. expenses of, in action against sheriff for conversion, 308. order for sale of land in execution, 165. of securities seized on fi. fa., 180. no implied warranty of title on sale of goods imder a fi. fa., 195. of term of years, 197. partnership property, 195. growing crops, 202. not a removal under 8 Anne, c. 14, 332. action for improperly selling, 317. SALE (BILL OF), 185. SANDWICH, execution of writs in, 7. SCIRE FACIAS, 9. against companies, 196. in outlawry, 238. fees on, 274. against sheriff, 324. SCRUTINY, at election of coroner, 52. Digitized by Microsoft® JNDEX. SEAL-KEEPERS. See Addenda. SECUEED CEEDITOE, effleot of aeiziire of goods in execution, 193. SECURITIES. See Bonds, mtes, Vnder-STieriff, Bailiff. for money, seizable under jBl. fa., 180. action on, by sherifi, 337. SEIZURE, ho-w made under fi. fa., 192. effect of, 193, 318, 336. action for wTOng^ful, 303. SEPARATE PROPERTY, of mfe not seizable for debts of husband, I S3. SEQUESTRATION", -writ of, 171, 233. landlord's claim for rent under, 321. SERJEAJSTT AT MACE, 30. SESSIONS OF THE PEACE, under-sberifB not to practise at, 24. duties of bailiff of liberty at, 36. sheriff at, 74. recovery of fines, 149. SETTIlSra ASIDE PROCEEDINGS, against sheriff, 292. SETTLEMENT, 182. See Smhand and Wife. SEVERAL WRITS, priority of, 188, 193, 213. seizure under one, seizure under all, 189. escape from arrest under, 321. SEWERS, jtiries of commissioners, 85. SHARES, charging order on, 172. SHERIFFS (Stat, of), 10. SHIPS, how seized under fi. fa., 197. SHIRE-CLERK, 25. SHIRE OR SCYE, 2. See County. SHOWERS, on view, 82. Digitized by Microsoft® 376 ■ INDEX.- SOLICITORS, exempt from serving as sherifi, 12. when privileged from arrest, 228, 229 . liable for sheriff's fees, 335. SOUTHAMPTON, appointment of sheriff, 7, 17. SPECIAL BAILIPF, 32. SPECIAL JURY, 77. See Jury. STAMPS, none on appointment of sheriff, 19. nnder-sheriff, 21. STAT OE PROCEEDINGS, effect of, 198, 303. STOCK, charged in execution, 172. STRANGER, entering house of, 191. SUNDAY, execution of oivU process on, 175. arrest on, when good, 226. recaption on, 226. SUPERSEDEAS, 175. fees on, 275. SURPLUS, of levy, 204, 242. action for, 327. SUSSEX, sherifE's county court, 40. TABLE OF FEES, 270. has force of public act, 326. TALES JURY, 83. TAVERN, for poU at elections, 106. carrying to, without consent, 309. TAXES, when to be levied under fi. fa., 202. return of payment of, to fi. fa., 206. TENANT BY ELEGIT, 166. interest of, 218. may distrain without attornment, 217. TENANTS. See Landlord. Digitized by Microsoft® INDEX. 377 TENAira'S FIXTURES, 179. See Fixtures. TENDER, to sheriff or bailiff, 204. TENEMENT, defimtion of, 213. TERM OP YEARS. See lease for Years. TESTATOR, goods of, when seizable under fi. fa., 182. TESTE OE WRIT, when goods hound from date of, 167. TIME, computation of, imder Ballot Act, 133. in execution of process, 17.)- TITHES, extendible under elegit, 213. TOOLS, when protected from seizure in execution, 179. TOURN OR TORNE, 38. TOWNS, sheriffs of, 7. TRADE FIXTURES, 179. TRADERS, execution against, 203. definition of, 203. TRANSFER, of unexecuted writs, prisoners, &o., 21. power of attorney to make or receive transfer of writs, 22. of property, 185. See Mil of Sale. TRAVELLESra EXPENSES, on arrest, 272. on inquisition, 273. TREASON, list of jury to be delivered to prisoner, 76. TREASURY, warrant, 283. TRESPASS, sheriff's liability for acts of, 303. TRUST PROPERTY, execution against, 211. A. C C Digitized by Microsoft® 378 nfDEX. XJNDER-SHERIFr, 23. acts during vacancy caused by death of the sherifE, 20. sheriff, being a militia officer, called out for actual service, 20. when appointed, 24. appointment of, 24. may not practise as solicitor at sessions, 24. when he may appoint a deputy, 25. office of, cannot be bought or sold, 25. power of, cannot be abridged, 25. security to sheriff, 26. declaration of office, 27. not an officer of the superior courts, 27. duration of office, 28. his relation to the high sheriff, how proved, 295. admissions by, 299. / VENDITIONI EXPONAS, onfi. fa., 194. on outlawry, 238. on extent, 252. VENIRE DISTEESrOAS, 265. VENIRE FACIAS, on jury process, abolished, SO. on crown process, 265. VENTRE INSPICIENDO, writ, 264. VERDICT, in compensation cases, how framed, 71. VIEW, under Compensation Acts, 61. in other cases, 80. number of viewers, 81, 88. proceedings upon, by judge's order, 81. warrant to bailiff, 87. certificate, 88. fees, 276. VOID WRIT, no justification to sheriff, 301. escape, 321. VOTER. See Coroner. Member of Parliament. WAaES, of married woman not seizable for debt of husband, 183. WALES, counties in, 2, S. accounts of sheriff of, 284. Digitized by Microsoft® INDEX. '379 WAEEAJSTT (BAILIFF'S), penalty for delivering without writ, 28. on writ of inquiry, 55. to summon jury, 86. when writ may be executed without, 176. who may execute, 176. arrest on blank warrant, illegal, 289. must be according to writ, 176. must contain copy of indorsement of writ, 176. on fi. fa., 177. on elegit, 211. on attachment and ca. sa. 225. on writ of possession, 239. fees on, 270. proof of, in action against sheriff, 296. ■WABRANT OF APPOINTMENT, of sheriff, 18. effect of, 20. of under-sheriff, 24. WAREANTT OF TITLE, at sheriff's sale, 195. WEARING APPAREL, protected from seizure in execution, 179. "WESTMINSTER, coroners in, 45. "WESTMORELAND, how held, 6, 10. sheriff's accounts, 279. "WIFE. See Susband and Wife. "WINCHELSEA, incorporated with cinque ports, 8. "WITHDRAWAL, of candidate at election, 100, 118. of writ of execution, 208. "WITNESSES, in compensation cases, 64. privilege from arrest, 228. WORCESTER, how held, 6. appointment of sheriff, 7, 17. "WRECK, of the sea, 149. Digitized by Microsoft® 380 INDEX. WRIT OP INQUIRY, 54. how executed, 55. when it issues, 56. measure of damages, 57. under Lord Campbell's Act, and how assessed, 59. return to writ, 60. , WRITS. See Execution. in counties palatine, 7. in cinque ports, 7. list of, delivered by old to new sheriff, 21. new sheriff to execute same, 22. deHTery of, to under-sheriff, 27, 175. deputy in Loudon, 28. sheriff bound to receive them when and wheresoever delivered to him in his county, 27, 175. need not (except an elegit) be returned to make the execution perfect, 175. must bear date on the day of issue, 176. must be executed in a reasonable time, 175. irregular one a justification to sheriff, 174, 301, 306. how proved, in action against sheriff, 299. WRONGFUL EXECUTION, action for, 303. action for return of money, 327. TORE, appointment of sheriff, 7, 17- C. F. EOWOBTH, PBINTBB, BBEAM'S BTHlWNaS, OHANOBET LAUE. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®