CHAPTER VI.

ACTIONS BY HIGH SHERIFF.

SECTION I.

ASSUMPSIT AND DEBT.

As already stated, the Sheriff at common law has no claim which he can enforce by action, therefore if he has any claim, it must be under the provisions of some statute (a).

By the 43 Geo. 3, c. 46," the plaintiff or plaintiffs may also levy the poundage, fees and expenses of the execution over and above the sum recovered by the judgment. Assuming, however, that the fees are not levied by virtue of this statute, a question arises what remedy the Sheriff has for recovery of them, (for to refuse to execute the writ till his fees are paid is, after payment, an indictable offence); on the statute of 43 Geo. 3, containing no express words as to any remedy for fees, (and, by parity of reasoning, it would be so on the recent statute of Victoria, there being no express words to that effect,) it was holden that, by implication, a right was given to the Sheriff to demand the fees mentioned in the statute; and, consequently, that he might, as in all cases where a statute creates a debt or duty, maintain an action of debt for them (b); a similar construction was put upon the statute of 28 Elizabeth (c); his remedy then is by action of debt (d); or he may maintain assumpsit upon an express promise. There is an authority of Lord Kenyon (e) for saying, that a Sheriff's officer may, when there is an express promise, maintain an action for fees in his own name, but this seems to require some qualification, notwithstanding it is in some measure countenanced by a precedent of one of the most eminent lawyers of

(a) Ante, p. 381.

(b) Moore, 853, pl. 1166; Latch. 19; Salk. 331; Palm. 400.

(c) Tyson v. Parke, 2 Ld. Raym.

1212; see also 1 Salk. 209; 1 Rol. 598, 1. 35.

(d) Mo. 468 ; Cro. Eliz. 654. (e) Ormerod v. Foskett, Peake's Add. Ca. 77.

our day, Mr. Chitty (f). The authorities in banc do not, it is submitted, go so far as the one at nisi prius, they merely establish this proposition, that a Sheriff's officer employed by an attorney to execute writs, may maintain an action against him, not for fees quà fees, but for the remuneration usually allowed on such occasions (h); and this is in strict accordance with the principles of law; for that A. should be employed by B., and not entitled to a reasonable remuneration for his services, would be most unjust. The term bound bailiff is perhaps not proper, for when one who happens to be a bound bailiff is employed by the plaintiff or his attorney, he is not, in such employment, a bound bailiff, but a special bailiff, being, pro hac vice, the servant of the plaintiff or his attorney, as the case may be, and not the servant of the Sheriff; and his accidentally being a bound bailiff is a matter wholly irrelevant and unimportant.

SECTION II.

TROVER AND TRESPASS.

As any one having a special property in goods may support trover against a wrong-doer, so may a Sheriff for goods seized under a fi. fa., provided they are at the time of the conversion in his actual possession; if he abandons possession, the property and possession revert back to the original owner (a). Note.When the Sheriff returns "nulla bona," and there is a recovery against him for his false return, that vests no property in him, but it remains vested in the party as before, and they are liable to any subsequent execution for his debt (b).

So he may support trespass for an injury done while he remained in actual possession.

(f) 2 Ch. Pl. 52, 6th edit.

(g) Foster v. Blakelock, 5 B. & Cr. 328; see also Townsend v. Carpenter, 2 Car. & P. 118; and Bramwell v. Pinnock, 7 B. & Cr. 536.

(a) 1 Ventr. 52; 6 Mod. 292; 2

Saund. 47; Blades v. Arundale, 1 M. & S. 711.

(b) 2 Vern. 239.

(c) 2 Saund. 47; 1 M. & S. 711; see 1 D. & R. 307; 2 Id. 755; 1 Ch. Pl. 170.

Power to seize promissory notes, bills, &c.

To sue for

amount secured by bills of ex

change and

SECTION III.

ON SECURITIES FOR MONEY SEIZED UNDER A FI. FA.

(1 & 2 Vict. c. 110.)

It is next proposed to consider actions by High Sheriff, brought upon promissory notes, bills of exchange, &c., seized by him under a fi. fa. by virtue of the twelfth section of the above-mentioned statute (a), which enacts,

"That by virtue of any writ of fieri facias to be sued out of any superior or inferior Court after the time appointed for the commencement of this Act, 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, specialties or other securities for money, belonging to the person against whose effects such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized, or a sufficient part thereof, and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, as a security or securities for the amount by such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised; and may sue in the name of such 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 or of such recovery and levy in execution as the case may be, from his liability on any such cheque, bill of exchange, promissory note, bond, specialty or other security, and such Sheriff or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to be levied, together with Sheriff's poundage and expenses, any surplus shall remain in the hands of such Sheriff or other officer, the same shall be paid to the party against whom such writ shall be so issued, Proviso as provided that no such Sheriff or 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 suiug out such execution shall enter into a bond, with two sufficient sureties, for indemnifying him from all 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."

other secu. rities.

to indem

nity to Sheriff.

(a) Ante, 328.

of

Bond of Indemnity.

KNOW ALL MEN BY THESE PRESENTS that we G. A. of

and C. W. of

G. P.

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

WHEREAS the above-named Sir G. M., Bart., as Sheriff of the county of by virtue of her Majesty's writ of fieri facias to him directed, against the goods, chattels, moneys, bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, and other securities for money of one J. B. issued at the suit of the said G. A. out of her Majesty's Court of Queen's Bench, hath seized and taken in execution a certain promissory note of the said J. B.; and whereas the said G. A. hath applied 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 G. M., Bart., has consented to do upon being indemnified for so doing.

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

vered in the presence

of me

G. A. (L. s.)
G. P. (L. s.)

C. W. (L. s.)

In the Queen's Bench.

Westmorland

Declaration.

The

A. B., Sheriff of the county of W., (the plaintiff in this to wit. suit according to the form of the statute in such case made and provided) by J. A., his attorney, complains of G. W. the defendant in this suit, who has been summoned to answer the said A. B., as Sheriff as aforesaid, in an action on promises. For that whereas the defendant on the day of A. D. 1839, made his promissory note in writing, and thereby promised to pay to one J. B. £100 three months after the date thereof, which period had elapsed before the commencement of this suit, and then delivered the said note to the said J. B. and promised the said J. B. to pay him the same according to the tenor and effect thereof: And the plaintiff further saith, that heretofore (b) and before the commencement of this suit, to wit, on the in the

(b) This probably according to the usual forms of pleading should have preceded, but as a general precedent this will be found more correct it

day of

is, as far as can be ascertained, the first precedent under the new statute, -nihil simul inventum est et perfectum!

Pleas.

year aforesaid, one G. P. in the Court of our lady the Queen, before the Queen herself, by the consideration and judgment of the same Court, recovered against the said J. B. a certain debt of £ and also

day of

costs, which in and by the same Court were adjudged to the said G. P.
and with his assent for his damages which he had sustained, as well by
the occasion of the detaining of the said debt as for his costs and charges
by him about his suit in that behalf expended, whereof the said J. B.
was convicted as by the record and proceedings thereof still remaining in
the same Court of our lady the Queen, before the Queen herself, at West-
minster aforesaid, will more fully and at large appear: And the plaintiff
further saith, that the said judgment being in full force, and the debt and
damages remaining unpaid and unsatisfied, the said G. P. on the
A. D. 1839, for the obtaining of satisfaction thereof, sued
and prosecuted out of the said Court of our said lady the Queen, before the
Queen herself, at Westminster aforesaid, a certain writ of our said lady
the Queen called a fieri facias, directed to the Sheriff of W., by which
said writ our lady the Queen commanded the said Sheriff that of the
goods, chattels, money, banknotes, cheques, bills of exchange, promissory
notes, bonds, specialties, and other securities for money of the said J. B.
in the said Sheriff's bailiwick, he should cause to be levied the debt and
damages aforesaid, and that he should have that money before our said
lady the Queen at Westminster aforesaid immediately after the execution
thereof, to render to the said G. P. for his debt and damages as aforesaid;
and that the said Sheriff should have there then that writ, which said writ
afterwards and before the delivery thereof to the plaintiff as such Sheriff
as hereinafter mentioned, to wit, on the
in the year
aforesaid, was duly indorsed with a direction for the said Sheriff to levy
£ besides Sheriff's poundage, officer's fees, and all other incidental
expenses, and which said writ, so indorsed, afterwards and before the said
execution thereof, to wit, on the day and year last aforesaid, was delivered to
the plaintiff, who then and from thence until and at and after the execution
of the said writ was, and from thence hitherto hath been, and still is Sheriff
of the said county of W., to be executed in due form of law, by virtue of
which said writ the plaintiff, as such Sheriff as aforesaid, afterwards, to wit,
on the day and year last aforesaid, and within his bailiwick, as such Sheriff,
seized and took in execution the said promissory note above mentioned,
of all which premises the defendant afterwards, to wit, on the day and year
last aforesaid, had notice: Yet the defendant hath disregarded his promise
and hath not paid the sum of £100 in the said note mentioned, or any
part thereof, to the said J. B. before the same was so seized and taken in
execution as aforesaid, or to the plaintiff as such Sheriff as aforesaid, since
the same was so seized and taken in execution: To the damage of the
plaintiff as Sheriff as aforesaid of £ and thereupon according to the
form of the statute in such case made and provided he brings suit, &c.

day of

With regard to a defence to an action of this kind little need be said, for it is quite clear that whatever pleas might have been pleaded to an action brought upon the instrument by the original creditor may be pleaded herein; add however, that the defendant may deny any other material averment on the face of the declaration, as to the issuing of the writ, seizure, &c. &c.