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Analytical Digest of Cases : Law relating to Sheriffs.


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LAW RELATING TO SHERIFFS. on the day and year aforesaid, took bail for

H.'s putting in special hail to the said action. Right to recover back money paid.- Judgment became bound to the sheriff, under a condition

| That on that occasion defendant, by bail bond, debtor.-The defendant having recovered judg-reciting that H. was taken, on 2nd April, 1849, ment against H., on the 25th of April lodged

by a capias bearing date the same day, in an with the plaintiff, who was the sheriff, a writ of action of debt at plaintiff's suit; and the confi. fa. The plaintiff neglected to execute the dition was for H.'s putting in special bail. writ until the 11th of May, when he seized the That H. did not put in special bail; and the goods of H. and assigned them to the de- bond became forfeited; and the sheriff after: fendant by bill of sale, which stated the con-wards, to wit on 17th April, 1849, assigned it sideration to be 2561. paid by the defendant to to plaintiff. Op special demurrer, him. He then returned fieri feci. Before Held, by Patteson and Erle, JJ., that it apthe seizure the defendant had notice of an act peared conclusively against defendant, from of bankruptcy committed by H. before the the recited condition of the bond, that the 25th of April, upon which a fiat issued in Judge's order was made, H. arrested, and the August, and assignees were appointed, who bond given and assigned, in an action brought sued and recovered from the plaintiff the value by the present plaintiff against H., and after its of the goods seized, whereupon he brought the

commencement. present action to recover back the money so

| And, by Lord Campbell, C.J., Wightman and paid: Held, first, that though no money in Erle. JJ.. that, independently of the condition fact passed, the plaintiff and defendant were, of the bond, the Judge's jurisdiction sufficiently as between themselves, in the same situation appeared. as if the plaintiff had sold the goods to the Held, also, that it was to be intended that defendant and received the money. Secondly, I the bond was assigned before this action was

not the plaintiff's, commenced; for the declaration showed that it still he was entitled to recover, since it was was assigned before the time of declaring, and money which he ought to have received as the Court would therefore intend that it was soon as he had been compelled by the owner assigned before the issuing of the writ, unless to pay for the goods seized. Thirdly, That in the contrary appeared, which was not the case this action the plaintiff was not estopped by here, the same day being named both for the his return from saying that the then title of issuing of the writ and for the assignment. the debtor was defeated by matter subsequent. Barnes v. Keane, 15 Q. B. 75. Lastly, That the money having been paid by the plaintiff in ignorance of the facts, he was

y Case cited in the judgment: Owen v. Waters

2 M. & W. 91. entitled to recover it back, although the defendant could not in every respect be placed in statu quo.-Standish v. Ross, 3 Exch. R. 1. Estoppel by return. If the sheriff return

to a fi. fa. in an action by R. against W., that he BAIL BOND.

has seized goods of W. under a fi. fa. upon a Action by the Sheriff's Assignee.- What is prior judgment recovered by L. against W., admitted on demurter to declaration.-Intend- and R. then brings an action for a false rement that fact occurred before action brought. turn, and for not seizing the goods under R.'s -The assignee of a bond given to the sheriff writ, and the sheriff pleads Not Guilty, and on arrest of H. hy a Judge's order under Stat. other pleas in denial of the seizure of Wi's 1 & 2 Vict. c. 110, s. 3, declared in debt goods under R.'s writ, and of there having against the obligor, reciting that the writ in the been goods of W. which might have been present action issued 17th April, 1850, and seized under R.'s writ, the sheriff is not stating that, to wit on 2nd April, 1349, H. had estopped from showing, under such pleas, that been arrested and was then in the sheriff's the goods seized did not in fact belong to W. custody by virtue of a capias theretofore, to Remmett v. Lawrence, 15 Q. B. 1004. wit on the day and year last aforesaid, issued 2. Seizure under fi. fa. on prior judgment. out of the said Court by virtue of a Judge's - Per Erle, J., where a declaration by an exeorder theretofore, to wit on 31st March, 1849. cution creditor against the sheriff complains nade; which writ was directed and delivered that goods of the execution debtor have been o the sheriff, indorsed for bail for 431., ac seized under plaintiff's fi. fa, and a false reording to the form of the statute. The turn made, and the defendant denies such declaration recited the wit, commanding the seizure, the defendant supports his issue by heriff to take H., and keep him till he should proof that, at the time of the seizure, he had lave given bail or made deposit in an action of in his hands a fi. fa, under a prior judgment lebt at the suit of plaintiff, or should by other obtained by another party against the same iwful means be discharged, and requiring H. debtor. For although the sheriff is, in strict) put in special bail. The declaration then ness, considered to seize goods under all the ated that the sheriff, after the arrest of H., writs in his hands at the time, he does not do elivered to him a copy of the writ, and, to wit so in the sense of such a declaration and tra




Analytical Digest of Cases : Law relating to Sheriffs. verse, which point to a seizure available under having authorised the unlawful act of his plaintiff's writ. Kemmett v. Lawrence, 15 partner, B. Q. B. 1,004.

In such a case, the damages are peculiarly

in the discretion of the jury, and they may inILLEGAL SEIZURE.

clude the sum paid for the withdrawal of the Under fi. fa. - Qucere, to what extent alexecution. Duke of Brunswick v. Slowman, S seizure of goods under a fi. fa. can be justified, C. B. 317. when properly pleaded, where the possession 2. Trespass by officer to execute a writ of of the goods has been illegally obtained. fa.- Plea' of justification.- Replication de inDuke of Brunswick v. Slowman, 8 C. B. 317. liuriá.—Where a plea justifies a trespass under INSUFFICIENT LEVY.

a fi. fa., on the ground that the outer door was General form of declaration.-Case against open at the time of the entry and seizure, that sheriff by execution creditor. The count

int allegation is put in issue by the replication de averred, that there were goods of the debtor

* injuria. Duke of Brunswick v. Slowman, 8 within defendant's bailiwick, of which defend

C. B. 317. ant bad notice, and might have ievied the

RETURN TO FI. FA. money. Breach, that defendant would not

Power of attorney to order sheriff' to quit levy or cause to be made the moneys. Pleas, possession.—To a testatum fi. fa., the sheriff Not Guilty, and a traverse of the averment returned that he seized the defendant's goods, that there were goods of which defendant and kept possession until he received from “ the might have levied, &c. Proof, that the sheriff attorney of the plaintiff's an order to withdraw seized goods of the debtor and sold them, but from possession: Held, that the return was that the sale was improperly conducted. so good, for the attorney of the plaintiff meant that he did not make so much as ought to “the attorney in the action,” and that he had have been made, and plaintiff received less power to order the sheriff to quit possession. than he otherwise would have done and not Levi v. Abbott, 4 Exch. R. 588. enough to satisfy the debt.

TROVER. Held, that this evidence supported the Right of possession. Interest in chattel.breach, and that it was not necessary that Execution. The plaintiffs, brewers in Dublin, plaintiff, being the execution creditor, should supplied a customer in Wales with porter in declare more specially. Mullet v. Challis, 16 casks, on the terms that the empty casks were Q. B. 239.

to be returned to Dublin, at his expense and JURY ACT.

risk, within six months from the date of the 6 Geo. 4, c. 50.- Penalties under.-" Acting contract, or paid for at invoice price, at the under-sheriff." -- Evidence of being. - A des option of the shippers : Held, that as soon as claration for penalties under the Jury Act, 6 the casks were empty, the vendee of the porter Geo. 4, c. 50, S. 46, described the defendant as was a mere bailee of the casks during pleasure, " acting under-sheriff,” and it was proved that and that the vendors had such an immediate he was the person who in the county per- right of possession as entitled them to mainformed the duties of under-sheriff; but that tain trover against a sheriff who wrongfully T., in London, was nominated under-sheriff took them in execution. Manders v. Williams, pursuant to the 3 & 4 Wm. 4, c. 90, s. 5. On 4 Exch. R. 339. the occasion of receiving official documents Cases cited in the judgment : Gordon v. Harper, from the late under-sheriff, the defendant, at 7 T. R. 9; Bradley ". Copley, 1 C. B. 685. the request of the latter, appended the word

SEIZURE. “under-sheriff” to his signature, at the same time saying, that he was not under-sheriff, but

Two writs.First judgment fraudulent.-- If T. was. The defendant had described himself

ribed himself a sheriff has seized goods at a time when he in an affidavit as "acting under-sheriff :" Held,

holds two writs of fi. fa. upon judgments at that the defendant was not liable to the penal

the suit of two different parties, and the plainties as under-sheriff, and that the plaintiff was

tiff obtaining the second judgment, brings an properly nonsuited. Williams v. Thomas, 4

action against the sheriff for a false return : Exch. R. 479.

Quære, whether such plaintiff may, on proof

that the first party's judgment was fraudu. : OUTER DOOR BROKEN.

lent, insist that the seizure was under his writ 1. Officer's trespass.-Co-trespassers.-Da- only. Remmett v. Lawrence, 15 Q. B. 1004. mages.-A., a sheriff's officer, to whom a writ

WRIT OF INQUIRY. of fi. fa. was directed, offered, for a pecuniary | Return.- When judgment may be signed.consideration, to delay its execution for a few Under Stat. 3 & 4 Wm. 4, c. 42, s. 18, which days. B., who exersised the office of bailiff to provides, that in causes tried before the sheriff, the sheriff, in partnership with A., afterwards judgment may be signed “at the return of illegally executed the writ by breaking open any su:. writ of inquiry," judgment cannot an outer door : and A. subsequently withdrew be signea v-fore the day on which the writ has his men from possession on payment of the been made ceturnable, though it has been actuamount indorsed on the writ, and of a bonus ally returned before that day. Holmes v. Lonto himself: Held, sufficient to warrant the don and South Western Railway Company, 13 jury in finding A. to be a co-trespasser, as Q. B. 211..

Analytical Digest of Cases : Law relating to Sheriffs.- Public Companies.



Vict. c. 110, s. 2, and was therefore not enGoods of third party.--Right of owner.- titled to registration. Regina v. Whitmarsh, If a sheriff wrongfully seizes goods which are 15 Q. B. 600.

which are 15 Q. B. 600. afterwards taken from him by another wrong

another wrong.

2;. Suggestion on

2. Suggestion on the record of the death of a doer, the owner of the goods may, in an action public officer.-d., who sued as public officer against the sheriff, recover as special damage of a banking company under the Statutes 7 the amount necessarily paid to the other wrong. Geo. 4, c. 46, and 7 & 8 Vict. c. 113, died doer, in order to get back the goods. Keene

se after issue joined. The Nisi Prius record was v. Dilke, 4 Exch. R. 388.

made up from the plea-roll, as though A. was

alive. The venire had been awarded accord. PUBLIC COMPANIES.

ingly as between A. and the defendants, and

no entry was made on the plea-roll of the death BANKING COMPANY.

of A., or of the appointmers, of another public 1. Stat. 7 & 8 Vict. c. 110, s. 2.-What is a officer. After the Nisi Prius record was so company established for a commercial pur- made up, a memorandum was entered upon it, pose.”- Registration.-Mandamus to the re- stating the fact of the death of A., and that B., gistrar under Stat. 7 & 8 Vict. c. 110, to re- another public officer of the co-partnership, gister the deed of a joint-stock company, and had been appointed to continue the proceedgrant certificate of complete registration. The ings; but this was not stated by way of sugwrit set out the deed, which provided, that it gestion to the Court, nor was it followed by should not authorise or require anything to any statement of confession by the defendants, be done contrary to law; that the company's or a nient dedire; and, after such entry had business should be purchasing land and erect- been made, the cause was entered for trial as ing thereon dwellings to be allotted to the “ B. v. (the defendants)," and was tried by the members, and raising a fund out of which jury returned on the venire in the cause of “ A. sums should be paid to, or applied for the be- v. (the defendants).” Three of the defendants nefit of, the allottees, and raising money for appeared at the trial, under protest; the fourth the purposes aforesaid, by selling, &c., in- had suffered judgment by default; and a verterests in, or charges on, the estates to be pur- dict was found for the plaintiff. chased; that the directors might recommend Held, that the entry so made upon the Nisi allotments of land, dividends of profits, and Prius record, was irregular, and did not authothe setting aside money for a reserve fund; rise the trial in the name of B. as plaintiff. that the shareholders, from time to time se- Quære, whether a formal suggestion of the lected by lot from those to whom no allotment death of A. would have been traversable. had been made, should receive allotments of Barnewall v. Sutherland, 9 C. B. 380. the land purchased; that, before a shareholder 3. Married woman . Sci. fa. - A married should receive his allotinent, a dwelling should woman, with the consent of her husband, the be erected on it, and certain sums laid out in defendant, purchased, with the proceeds of stocking it, by the directors; that the allot- her separate estate, shares in a joint-stock ment should be charged with a rent-charge for banking company, and was registered as the benefit of the company, at the rate of 51. owner. Her husband received some dividends, for every 1001. expended by them; that the and signed receipts as the agent of his wife; rent-charges might be retained for the benefit he also attended a meeting of the company, at of the company, or sold, &c., as the directors which none but shareholders were entitled to should think fit; and that, when the funds of be present. The company's deed of settlement the company should exceed the amount neces. provided, that the husband of any female sary to provide allotments for all the share- shareholder should not be a member in reholders, a dividend out of the profits should spect of such shares, but should be at liberty be declared among the shareholders.

to sell them, or at his option to become a Return,-That the company was not a joint member on complying with certain requisi. stock company established for any commercial tions, which the defendant in this case did not purpose or purpose of profit, within Stat. 7 & do: Held, that the defendant was not a mem8 Vict. c. 110 (sect. 2); and that it consisted ber, for the purpose of execution by scire of more than six persons, and was a banking facias on a judgment against the public company carrying on business within 65 miles officer, under the 7 Geo. 4, C. 46, s. 13. Ness of London; that the shares were of less v. Angas, 3 Exch. R. 805. amount than 1001.; and that the company 4. Executor of deceased partner.-Liability carried on the business of bankers otherwise of for calls.-Extraordinary meeting.-Notice. than by letters patent granted according to -A declaration by the public officer of a jointStat. 7 & 8 Vict. c. 113.

stock company against the executrix of a shareOn demurrer to the return, held,

holder for calls, stated that, by the deed of 1. That, as the deed itself did not disclose settlement, it was provided that the sharethat the company was a banking company, holders, while holding shares, should be partthe latter part of the return showed no legalners in the company, and that, in addition to cause for not registering.

51. required to be paid by each shareholder 2. But that the company appeared, by the before the execution of the deed, the directors deed, not to be established for any commercial should have power to call for the further paypurpose or purpose of profit, within Stat. 7 & ment by each shareholder, or his executors, of 328

Analytical Digest of Cases : Public Companies. 451. on every share held by him. It then an action against a shareholder for the recoaverred, that, after the testator's death, and very of a debt, or for enforcing any claim or whilst the defendant was a shareholder as such demand due to the co-partnership, are bound to executrix, the directors made a call. Breach, sue in the name of one of their public officers, non-payment by the defendant as such execu- and are not at liberty to sue in the names of trix. Pleas, non est factum, and a denial that the covenantees named in the deed of cothe call was made whilst the defendant was a partnership. The words in the 9th section of shareholder as executrix : Held, first, that the the Act, “shall and may,” are obligatory, and covenant by the shareholders to pay calls not merely permissive. Chapman v. Milvain, bound their executors, in case a call was made 5 Exch. R. 61. on them, although the covenant did not con- 6. Sci. fa.-Execution against husband of tain the words " or their executors," and con- shareholder as member for time being.7 Geo. sequently, there was no variance in the state. 4, c. 46, s. 13.-By a deed of settlement conment of the contract; secondly, that the plain- stituting a joint-stock banking company, it tiff was entitled to succeed on the other issue, was provided, that before the husband of a inasmuch as the defendant was in one sense a shareholder became a member of the company, shareholder as executrix, notwithstanding the he should take certain steps therein specified. deed provided that no esecutor should become A woman, who was a shareholder of the coma shareholder without the consent of the di- pany before her marriage, continued after her rectors, and until he had done certain specified inarriage, and without her husband's knowacts, which requisites were not in this case ledge, to receive dividends and pay calls in der complied with.

maiden name upon her shares, which remained The deed of settlement further provided, registered in that name; and she was so de that the directors should meet weekly, on a scribed in the list of shareholders returned to day to be named by them, and on such other the Stamp Office. Her husband knew that days as they should think fit; but that the she was a shareholder, but did not take the secretary, or any director, might call an extra- steps required by the deed of settlement to be ordinary board, by sending a notice at least come a shareholder in respect of her shares, one clear day before the time of meeting, and or do any other act respecting them. specifying the day and hour fixed for the meet- Held, that execution could not be sued out ing, and the purpose thereof; and that the against the husband upon a sci. fa. under the business transacted by the directors, being at 7 Geo. 4, c. 46, s. 13, as a member for the least five in number, should bind the com- time being. Dodgson v. Bell, 1 L. M. & P. pany. The directors appointed Wednesday as 812. their ordinary day of meeting; and a board Case cited in the judgment: Ness v. Angas, s having been held on Wednesday, the 7th of Exch. R. 805 ; 6 D. & L. 645. March, was adjourned. A letter was afterwards sent to the directors by the secretary,

BUILDING SOCIETY. stating that he was directed to inform them! 1. Action by trustees. -- Arbitration under that a special board was summoned for Tues society's rules.- By a rule of a building som day, the 11th of April, on special business. ciety, actions relating to their property were to At this meeting the call in question was made. I be brought by the trustees, who were to be lila Held, that the call was duly made; for this demnified out of the funds; but they were not was not an extraordinary board, and therefore to commence any action without consent of did not require notice of its special purposes. the directors: Held, that, on the trial of a

The statute enabling the company to sue action brought by them, the defendant (though and be sued by their public officer, required a a member of the society), could not allege that memorial to be enrolled of the names, resi- they were suing without the requisite consent. dences, and descriptions of the shareholders. By another rule, disputes between the assoand declared that, until such memorial was en ciation and any of its members were to be re. rolled, no action should be commenced under ferred to arbitration, according to Stat. 10 Geo. the authority of that Act. One of the share- 3, c. 56 (Friendly Societies' Act), s. 27. 1 holders was described thus :-“ A. R.. di. member, borrowing the amount of his share rector of the Honourable East India Company, from the association, gave the trustees a mort. and Major-General in the East India Com-/ gage of premises held by him on lease, which pany's service, shareholder:" Held, sufficient. / contained a clause of forfeiture on non-par. within the meaning of the Act of Parliament. ment of rent; and he covenanted, by the mort as it corresponded with the register. Wills y.) gage deed, to pay his dues to the association, Murray, 4 Exch. R. 843.

and to pay his landlord the rent reserved by Cases cited in the judgment: Hyde v. Skinner,

his lease : Held, that on default by the mort. 2 P. Wms. 196; Harwood v. Hilliard. Mod: gagor in payment of the society's dues, and 268 ; Lorant v. Scadding, 19 Law J., M. C. 5.

also in payment of the rent, the trustees might

proceed at law, and were not bound by the 5. Action by, against shareholder.-7 Geo. 4. I arbitration clause. Doe dem. Morrison . C. 46." Shall and may,meaning of terms.-A | Glover, 15 Q. B. 103. company of persons, established for the pur Case cited in the judgment: Morrison . pose of carrying on the business of bankers Glover, 4 Exch. 444. under the provisions of the 7 Geo. 4, c. 46, in

| To be continued.]

The Legal Observer,



LAW BILLS BEFORE PARLIAMENT. ,diency of substituting a Judge for a jury

upon the trial of civil actions, is about to be TRIAL BY JURY

brought under the consideration of the LeIn the days of Fox and Erskine, the gislature in the bill presented by Lord statesman would, indeed, have been bold Brougham to the House of Lords shortly who ventured to propose that the trial by after the meeting of Parliament, “ for furjury should be dispensed with in civil ac- ther amending the Law of Evidence and tions, with or without the consent of the Procedure.” The clauses by which this litigants. The question, however, is now important change is proposed to be introseriously discussed, and the noble and duced in the procedure of the Common Law learned Lord who is placed at the head of Courts are as follow :-the administration of the Law, has taken “In every civil action or other proceeding great pains to make it known that he has which is henceforth either instituted in, or repronounced no opinion against giving the moved into, any of the Superior Courts of option to suitors between trial by a jury Common Law, and is to be tried at Nisi Prius, and trial by a Judge. All he has ventured

at the Judge at Nisi Prius shall, except as hereinyet to state upon the subject is, that the the

| after excepted, decide the issues of fact without

the the intervention of a jury; and such decision question is one of great delicacy and im- I shall be entered on record, and shall operate portance, and that his mind is not made up in every respect as if it were the finding of a apon it.

Tjury at Nisi Prius;" s. 22. As may be supposed, it is not proposed, “In every such action or proceeding as is in the first instance, to shock the prejudices referred to in the last section, either party of our fellow-countrymen. by a legal pro- thereto may insert in the margin of any pleadhibition against trial by jury. We are not

I ing delivered or filed by him, or if there be no yet so advanced in intelligence that it is si

formal pleadings, in the margin of the issue

19 stated by agreement, the words “by jury," desirable to declare that the Cadi should and whenever such a memorandum is inade by not only make the law but determine all either party, it shall be inserted also in the the facts. It is only proposed to provide, margin of the Nisi Prius Record, and a jury that in case neither party requires a jury, shall be summoned, and shall try the issues of the Judge shall decide all issues of facts fact in like manner as before the passing of this without the intervention of a jury. In this Act;" 8. 23. manner we are to be gradually accustomed If we inquire the grounds upon which a to see the Judge discharge the functions of change so startling is proposed in our legal a jury, but those who, in the slang of the institutions, we are referred to the experiday, “take their stand upon progress,"ence of the County Courts, which seem regard the option to be given as a tempo- destined, for good or evil, to exercise an inrary concession to absurd prejudice, and fluence which no one at the period of their look forward confidently to the speedy ad- establishment could have predicted. Upon vent of that day when "jury trial,” and all every question of legal amendment involvsuch antiquated rubbish, is to share the ing any doubtful element, the supposed exfate of fines and recoveries and trial by perience of the Judges of the County battle!

Courts is appealed to, as affording an unAs our readers are already aware (see erring test of the soundness of the printe, p. 107), the question as to the expe- ciples upon which they administer justice, VOL. xlv. No. 1,303.

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