If the taking be in issue. The connection between the Sheriff and the bailiff must also be established by the evidence already laid down. If the taking of the bond be in issue, the defendant should be of the bond served with a notice to produce the bond (if in his possession), and the service of such notice proved; when it was produced under such notice, and it appeared that the original bond had been shown to the plaintiff's agent, and a copy of it delivered to him, it was held unnecessary to call the subscribing witness; and that as against the Sheriff it must be taken to be a valid bond (u). So when it was proved that the Sheriff had assigned the bond to the plaintiff, it was holden unnecessary to prove the execution by the sureties; for that as against the Sheriff, proof of the assignment by him to the plaintiff was sufficient (x). The sureties themselves are competent witnesses to prove whether they were sufficient or not (y). Sureties good wit nesses to prove their ¡ufficiency. Amount of lamages. The Sheriff in this action is liable to the amount of the penalty in the bond; that is, double the value of the goods distrained, and no farther (z). Acts in a ministerial SECTION XII. TRESPASS. For what is done in his judicial character, as before observed, judicial and no action will lie against him, though it were done maliciously; in such case, however, he might be punished by criminal information or indictment (a), but for torts committed in his ministerial character an action will lie. character. When trespass lies. In trespass he is in general liable, even though there was no wrongful intent in committing the tort; as if by mistake he take the goods of a wrong person, the intent of a wrongdoer being immaterial, except as regards the amount of damages (b), but he (u) Scott v. Waithman, 3 Stark. Rep. 168. (x) Barnes v. Lucas, R. & M. 266. (y) Saund. 195g; Hindle v.. Blades, 5 Taunt. 225. (z) Evans v. Brander, 2 Hen. Bl. 47; Paul v. Goodluck, 2 Bing. N. R. 224; 1 Hodges, 370; 2 Scott's Rep. 363; and see Hunt v. Round, 2 Dowl. P. C. 561. (a) Dicas v. Lord Brougham, 1 M. & Rob. 309; 6 Car. & P. 249. (b) 2 Stark. Rep. 213; 3 Wils. 309; 3 East, 599, 601. cannot be made a trespasser by relation, for although a fiction of law may give a right, it cannot create a wrong; thus if a Sheriff, after a secret act of bankruptcy committed by A., seize his goods under an execution against him, he cannot be sued by the assignees in trespass, but only in trover (c). So when the process of a superior or inferior court has been misapplied, as if A. or his property be taken upon process against B.; and trespass is the proper remedy where there is a misnomer in the process which has not been waived, though it be executed on the person or goods of the party against whom it was in fact intended to be issued; or if process be abused, as if he break open an outer door, or arrest out of the bailiwick or after the return day of the writ (d), or execute a fi. fa. after notice of allowance of a writ of error, or detain a party on a ca. sa. after he tenders the debt and costs, or retake one after a voluntary escape on a ca. sa. (e), or seize under a fi. fa. for fixtures of the defendant who is a freeholder, for he thereby becomes a trespasser ab initio; but if the act complained of consists of a mere nonfeazance, as if he improperly refuse bail or to act when he should do so, an action on the case, and not of trespass, is the form to be adopted (f). When process is irregular merely, no action for false imprisonment can be maintained until that process is set aside (g). The declaration (in the form of which few difficulties can well Declaraarise) will necessarily depend upon the nature of the act of tion. trespass, whether to the person, to personal property, or to real property (h). The plea of "not guilty" puts in issue the fact of the defend- Pleas. ant having committed the act complained of, and nothing more; the plea therefore is proper in trespass to person, if the defendant committed no assault, battery or imprisonment; in trespass to personal property, if the defendant did not take, &c.; and in trespass to real property the fact of the trespass is alleged, but (c) Smith v. Milles, 1 T. R. 480; Balme v. Hutton, 9 Bing. Rep. 471; Carlisle v. Garland, 3 M. & W. 152; Groves v. Cowham, 10 Bing. 5. (d) Belshaw v. Marshall, 1 Nev. & M. 689. (e) Atkinson v. Matteson, 2 T. R. (f) Storland v. Govett, 5 B. & C. 490; Six Carpenters case, 8 Co. 290. (g) Riddell v. Pakeman, 2 C. M. & R. 33. (h) Phillips v. Howgate, 5 B. & A. 220; Young v. Beck, 1 C. M. & R. 400. Pleas by Sheriff justifying arrest under capias. the possessory title of the plaintiff is not in issue, which must be specially denied if intended to be disputed: and all matters in confession and avoidance must be specially pleaded. In justification under process the usual pleas are the following: 1st. Not guilty. 2nd." And for a further plea in this behalf (i) [as to the making the said assault, &c.] the defendant saith (actio non), because he saith that before the said time when, &c. in the declaration mentioned, to wit, on, &c. a certain writ of our lady the Queen, called a capias, was issued out of the Court of our lady the Queen, before the Queen herself, directed to the then Sheriff of by which said writ our lady the Queen commanded the said Sheriff that he should omit not by reason of any liberty in his bailiwick, &c. [setting out remainder of capias verbatim except memoranda], which said writ was then duly indorsed for bail for £ and which said writ so indorsed for bail as aforesaid, afterwards, to wit, on, &c. was delivered (k) to the defendant, who then and from thenceforth until and at and after eight days after the execution of the said writ upon the now plaintiff as hereinafter mentioned, was Sheriff of the said county of to be executed in due form of law and the defendant, by virtue of the said writ, as such Sheriff as aforesaid, afterwards, and before the time appointed for the return of the said writ, to wit, at the said time when, &c. in the declaration mentioned, and within his bailiwick, as such Sheriff, took and arrested the plaintiff by his body, and kept and detained him in his custody at the suit of the said E. F. for the cause aforesaid for the space of time in the declaration mentioned, as he lawfully might for the cause aforesaid (?); and the defendant further saith, that afterwards and at the return of the said writ, to wit, on, &c. he the defendant duly returned the said writ to the said Court of our lady the Queen, before the Queen herself, and then returned thereon that by virtue thereof he the defendant had taken the plaintiff, whose body he had ready as by the said writ he was commanded, as by the said writ and the said return thereof remaining of record in the said Court more fully appears: and this, &c. verify, &c. (m) (i) The recital of the trespasses intended to be justified must depend on the statements in the declaration; 1 Saund. 296-298, n.; Beck v. Young, 1 C. M. & R. 448; Reddell v. Pakeman, 3 Dowl. 714; 1 Gale, 104; how to plead in an inferior court; Cowp. 18; see also 2 Ch. Pl. 1000; by a serjeant at mace under process executed in London; 9 Wentw. 331. See another plea, 3 Chit. Pl. 1006; Phillips v. Howgate, 5 B. & Ad. 220. (k) This allegation is not necessary but usual; Green v. Jones, 1 Saund. 298. (1) The arrest only is justified in this precedent, if a battery be justified the cause thereof must be set out on (m) The Sheriff or officer to whom mesne process is directed must allege a return of mesne process, but the bailiff who has a warrant or any person who acts in his aid need not. When the Sheriff justifies under process in execution the return need not be shown, unless some ulterior process is to be resorted to to complete the justification; Clearty v. Barnes, 10 East's Rep. 81, and cases cited. When a process or warrant is stated in the plea the replica- Replication "de injuria" cannot be replied; plaintiff must either deny tion. the issuing of the writ or warrant, or that the trespasses were committed in due execution thereof, showing why and sometimes without showing why (n); if the plea justifies a battery, because plaintiff attempted a rescue, the plaintiff may reply that defendant beat him more than was necessary (o). When the bailiff, in an action against him for breaking and entering plaintiff's dwelling-house, pleaded that he entered under a writ of fi. fa. and a warrant, to which the plaintiff replied that before the writ and warrant were fully executed defendant exacted more than the sum he was entitled to levy; the replication was holden bad on demurrer, as the act complained of-the extortion- -was not such an act of trespass as would make the Sheriff a trespasser ab initio. The effect of the general issue and the evidence bearing upon Evidence. it. The writ, arrest, &c. and the evidence to support the allegations having been already considered, it would be to little or no use to accumulate further comment thereon. The damages recoverable in this action are such as the plaintiff Damages. can prove that he has actually sustained. SECTION XIII. TROVER. ceased to be the property of the de fendant. As before observed the Sheriff must at his peril execute the Where prowrit on the property of the person therein named, and upon that peity has of no other individual; if, therefore, goods have ceased to be the property of that party, he is liable to an action at law if he seizes them, although not cognizant of the change of property: upon this principle it is considered that a Sheriff, who seizes after an act of bankruptcy, without notice, is liable in an action of trover at the suit of the assignees. That he could not be made a trespasser by relation, (being a public officer,) was clearly settled; but that he was liable in (n) Vide 2 Ch. Pl. 1129, n. (e). (o) See also Young v. Beck, 1 C. M. & R. 400. Liable in trover but not trespass. trover (a) was equally admitted as a clear rule in all the text books of writers on bankrupt law; acted upon by all practisers in their advice to clients, and confirmed by some of the ablest men that have ever adorned the judicial seat from Lord Mansfield down to the present day. But in Michaelmas term, 1831, the case of Balme v. Hutton (b) came before the barons of the exchequer, by whom, in one of the most elaborate judgments on record, it was adjudged that in such a case he was not liable in trover; but this judgment was carried by writ of error into the Exchequer Chamber, when it was reversed (c). Subsequently, the case of Carlisle v. Garland (d) was argued in the Exchequer Chamber, but the judges were equally divided on the main point, and by the House of Lords the judgment of the Court below was affirmed by a majority of the judges, (Lord Denman, Vaughan and Bolland, dissentientibus) (e), thereby deciding that a Sheriff, who seizes and sells the goods of a bankrupt under a fi. fa., before fiat, but after an act of bankruptcy, without notice of the act of bankruptcy, is liable in trover to the assignees; so that trover will lie against him, whether he have notice of the act of bankruptcy or not (ƒ). What right he has to take goods, &c. of one not subject to the bankrupt laws, when the transfer took place after the delivery of the writ to him, has already been fully considered (g). These observations are made with a view of showing his duties in cases of bankruptcy or insolvency-when he should proceed to sell and when he should not-to whom he should turn over the proceeds, to the execution creditor or to the assignees-and also how the property of goods and chattels of persons not within the reach of the bankrupt laws is affected by a delivery of the writ to him; a proper consideration of which will always guide him in his option of calling for an indemnity, or applying to the (a) Cooper v. Chitty, 1 Burr. 36; Hitchin v. Campbell, 3 Wils. 309; Lazarus v. Waithman, 5 Moore, 313; Potter v. Starkie, 4 M. & S. 260; Wyatt v. Blades, 3 Camp. 396; Lee v. Lopes, 15 East, 239; Price v. Helyar, 4 Bing. 527; Carlisle v. Garland, 7 Bing. 298; Dillon v. Lumley, 2 B. & Ad. 131; è contrá, Bailey v. Baning, 1 Lev. 173; 1 Sid. 271; Letchmere v. Thorogood, 3 Mod. 236; Cole v. Davies, Ld. Raym. 724. (b) 2 C. & Jerv. 20; 2 Tyrw. 17. (c) 9 Bing. 471. (d) 10 Bing. 452; 3 Tyrw. 705; 4 Scott, 587-717; 3 M. & W. 152. (e) The maxim "ignorantia juris neminem excusat" seems a strange maxim after cases like this. (f) 1 Mont. & Ayrt. B. L. 251; Henl. 338; and ante, p. 330, where executions in the case of bankruptcy are fully considered. (g) Ante, 329. |