Sheriffs.

5. For not arresting the Debtor when the Defendant had an opportunity.

See Form ante p. 449.

6. For not Assigning a Bail Bond. (i)

As in the count for an escape, ante p. 447, to the end of the statement of the arrest, and then proceed as follows:] And the said plaintiff in fact further saith, that the said E. F. being so arrested and in the custody of the said defendant so being such sheriff as aforesaid, under and by virtue of said writ, for the cause aforesaid, he the said defendant as such sheriff, afterwards, and before the return of the said last mentioned writ, to wit, on [&c.], last aforesaid, at [&c.,] aforesaid, took bail for the appearance of the said E. F., in the said Court of Common Pleas of said county, on the first day of the then next term of said court, or the succeeding day, according to the form of the statute in such case made and provided, and on that occasion he the said defendant, so being such sheriff as aforesaid, then and there, to wit, on [&c.] aforesaid, at [&c.] aforesaid, took of the said E. F. and two other persons, as his sureties or bail, according to the form of the said statute, a certain writing obligatory, commonly called a bail bond, in the penal sum of dollars, conditioned for the appearance of the said E. F. at the time and place aforesaid, to answer to the said plaintiff in the plea aforesaid; and the said plaintiff in fact further saith, [&c., state the nonappearance of the party arrested, and consequent forfeiture of the bail bond, as ante, 367, and then proceed as follows:] And although the said A. B., by G. H., his lawful attorney in that behalf, did, afterwards, and whilst the said defendant was such sheriff as aforesaid, to wit, on [&c.] at [&c.], aforesaid, request the said defendant to assign the said writing obligatory to him the said plaintiff in the said action, according to the form of the statute in such case made and provided; yet the said defendant, so being such sheriff as aforesaid, contriving and wrongfully and unjustly intending to injure the plaintiff in this behalf, and to hinder and prevent him from bringing any action or actions on the said writing obligatory, and to deprive him of the means of recovering the damages [or debt] aforesaid, did not, nor would, at the said time when he was so requested as aforesaid, assign the said writing obligatory to him the said plaintiff, but, on the contrary thereof, then and there wholly refused, and hath from thence hitherto wholly neglected and refused so to do, and by means of the premises last aforesaid, he the said plaintiff hath been and is hindered and prevented from bringing any action or actions on the said writing obligatory, and hath been and is deprived of the means of recovering the said damages, and is likely to lose the same, to wit, at [&c.] aforesaid. [If it be doubtful whether a bail bond was taken, add a count for an escape, as ante, 447.]

(i) It is not certain that this action can be maintained. See Stat. 655, § 36; Tidd. 8 Lond. ed. 320, 321; 9 ed. 298; 1 Mod. 228.

Sheriffs.

7. By Sheriff against a Party, for giving him False Instructions, whereby he arrested an improper person.

For that, whereas, the defendant, heretofore, to wit, on [&c.] at [&c.], prosecuted and sued forth out of the Court of Common Pleas [or say, out of the clerk's office of the Court of Common Pleas] of said county, a certain writ of _capias ad respondendum, against one B. R., directed to the sheriff of the county of aforesaid, by which said writ the State of Ohio commanded the said sheriff to take the said B. R., if he might be found in his bailiwick, and him safely keep, so that he might have his body before the Court of Common Pleas of the county aforesaid, at the court house in said county, on the first day of their then next term, to answer to the said defendant in a plea of [here insert the action named in the writ, and the damages, or debt and damages,] and that the said sheriff then have there that writ; which said writ afterwards and before the delivery thereof to the defendant as sheriff of said county, to be executed as hereinafter mentioned, to wit, on [&c., teste day of writ,] at said county, was duly indorsed with the cause of action, the amount sworn to, and for bail for dollars, (k) according to the form of the statute in such case made and provided; and which said writ, so indorsed, afterwards, and before the return thereof, to wit, on [&c., exact day not material,] at the county aforesaid, was delivered to the plaintiff, who then and from thence, until and at and after the return of said writ, was sheriff of the county aforesaid, to be by him in due form of law executed; and the said plaintiff in fact further saith, that at the time of the said delivery of the said writ unto him the said plaintiff for execution as aforesaid, and of the arrest hereinafter mentioned, he the said plaintiff did not know, but was then and there ignorant of, and wholly unacquainted with, the person of the said B. R., the defendant in the said writ; yet the said defendant, well knowing such premises, and also then and there well knowing the person of the said B. R., the defendant in the said writ, afterwards, and after the delivery of the said writ unto him the said plaintiff for execution as aforesaid, and before the execution thereof, and also before the return of the said writ, and whilst the said plaintiff was so unacquainted with the person of the said B. R., to wit, on [&c.], at the county aforesaid, did falsely, fraudulently and deceitfully, assert and affirm unto the said plaintiff, so then and there being sheriff of the said county, and having the said writ for execution as aforesaid, that the said B. R., the defendant in the said writ, lived at a certain house, [&c.,] and did then and there wrongfully instruct, order and direct the said plaintiff, so being then and there sheriff as aforesaid, and so having the said writ for execution as aforesaid, to take and arrest the person answering and being of the description so by him given as aforesaid, as and for, and as being the said B. R., whereupon the said plaintiff, being still ignorant of, and wholly unacquainted with, the person of the said B. R., and not then

(k) See note (7), e, p. 448.

Ships and Boats.

and there knowing that the said person so by the said defendant described as aforesaid was not the said B. R., but then and there conceiving such person to be the said B. R., did then and there proceed to, and did then and there, under and in consequence, and in pursuance of, the said instructions, orders and directions, of the said defendant, take and arrest the said person, so by the said defendant described as aforesaid, upon and under the said writ, as and for, and as being the said B. R.; but in truth and in fact, the said plaintiff saith, that the said person, so by the said defendant described as aforesaid, and by him the said plaintiff arrested, was not the said B. R., the defendant in the said writ, but another and different person, and of another and different description than the said B. R., to wit, one J. R., to wit, at the county aforesaid; and so the said plaintiff in fact saith, that the said defendant, in and by his said assertion, affirmation, instructions, orders and directions, so made and given to him the said plaintiff as aforesaid, then and there, to wit, on the [&c.], at the county aforesaid, did falsely and fraudulently deceive him the said plaintiff, that thereby and in consequence thereof, and of his having so taken and arrested the said J. R. as aforesaid, he the said plaintiff was, afterwards, and before the commencement of this suit, to wit, on [&c.] at [&c.], sued and prosecuted by the said J. R., in an action or suit at law in this court here, for such arrest and false imprisonment of him the said J. R., as aforesaid, and the said J. R. did, afterwards, to wit, at the term of said court, in the year judgment against him the said plaintiff, in such action or suit for a large sum of money, to wit, the sum of for his damages and costs in such action, thereby and by reason thereof, and of the said recovery so had and obtained against him by the said J. R. as aforesaid, he the said plaintiff was afterwards, to wit, on [&c.] at the county aforesaid, forced and obliged to pay, and did in fact pay, the said sum of dollars, in satisfaction and discharge of the said judgment, so obtained against him by the said J. R. as aforesaid, to wit, at the county aforesaid; and the said plaintiff also saith, that by reason of such action being brought against him as aforesaid, he the said plaintiff was necessarily forced and obliged to lay out, expend and pay, and did in fact lay out, expend and pay, divers other sums of money, amounting in the whole to a large sum of money, to wit, the sum of dollars, for and on account of his own costs and charges in and about the defence and settlement of the said action or suit, to wit, at the county aforesaid.

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-, recover

SEC. XXII. SHIPS AND BOATS.

1. Against the Owner or Captain of a Ship for running foul of Plaintiff's Vessel.

For that, whereas, the plaintiff, before and at the time of the committing of the grievance by the defendant hereinafter mentioned, was lawfully possessed

Ships and Boats.

9

of a certain ship or vessel [or "schooner,” as the case may be,] to wit, at said county, of great value, to wit, of dollars, then and there lawfully being in the river - and the defendant was also then and there possessed of a certain other ship or vessel [or "schooner," as the case may be,] in the river aforesaid, and then had the care, direction and management of the same. Yet the defendant, not regarding his duty in that behalf, whilst the said ships or vessels respectively so were in the said river, to wit, on [&c.], at said county, took so little and such bad care of his said ship or vessel and governed and navigated the same in so unskillful and improper a manner, *that the same, by and through the carelessness, unskillfulness, misdirection, mismanagement and improper conduct of the defendant in that behalf, then and there, with great force and violence, ran foul of and struck against the said ship or vessel of the plaintiff, and thereby then and there greatly broke, damaged and injured the same, and thereby divers goods and chattels, to wit, [&c., describing them as in trover,] of the plaintiff, of great value, to wit, of the value of dollars, then and there being in his said ship or vessel, then became and were greatly damaged, wetted and spoiled; and also by reason of the premises, the plaintiff then and there necessarily incurred divers expenses, to wit, to the amount of

dollars, in and about the surveying and repairing the said damage so done to his said ship or vessel as aforesaid; and also by means of the premises, the plaintiff lost and was deprived of the use of his said ship or vessel for a long space of time, to wit, for the space of, and thereby lost and was deprived of all the profits and advantages which during that time he might, and also otherwise might and would have derived and acquired from the use of his said ship or vessel, to wit, at said county. To the damage, [&c.]

2. Against the Owners for Carelessness of Master in Running Down Plaintiff's Boat.

For that, whereas, the said plaintiff, on [&c.] at [&c.], was lawfully possessed of a certain boat commonly called a flat boat, of great value, to wit, of the value of dollars, and ladened with divers goods and chattels, to wit, [&c., describe them as in trover,] of the plaintiff's of great value, to wit, of the value of dollars, and which said flat boat was then and there lawfully floating upon the river ; and the said defendants were then and there the owners, and possessed of a certain steam vessel, called [&c.], then and there being and propelled by steam in the same river, of which one A. was the master duly appointed by the defendants, and for whose carelessness, negligence and unskillfulness as master of the said steam vessel the said defendants then were, and now are, answerable; and the said defendants, by the said A. master of the said steam vessel as aforesaid, then and there so negligently, carelessly and unskillfully managed and steered the said steam vessel, that the said steam vessel, for the want of good and sufficient care and management

Ships and Boats.

thereof, fell foul of, run down and sunk the said flat boat with the said goods and chattels above described on board of her; by reason whereof the plaintiff hath wholly lost the said flat boat, with the goods and chattels aforesaid, and also all the profit and benefit of said boat in the business of carrying and transporting of goods. [Add a count similar to the first. See Oliver, 286, 287.]

3. Against the Proprietors of a Steam Vessel for causing a dangerous Swell in the River, whereby the Plaintiff's Vessel was Swamped.

For that, whereas, [proceed as in Form 1, supra, to the asterisk, describing defendant's vessel as a "steam vessel,"] and then and there wrongfully and improperly navigated and propelled the said vessel, and caused and suffered the same to be navigated and propelled in the said river near to the said ship or vessel of the plaintiff, in so immoderate, rapid, careless and improper a manner, that by reason and means thereof, there then were a great, excessive, undue, immoderate and dangerous swell and disturbance of the water of the said river near to and about the plaintiff's said ship or vessel [or "flat boat"]; and by reason of the premises, divers large quantities of the water of the said river then and there rushed, flowed and came into and upon the said ship or vessel of the plaintiff, and the same was thereby overwhelmed and then and there sunk in the said river, and by reason thereof ["the plaintiff, who then and there was in his said ship or vessel, was then and there in great danger of being drowned, and was greatly hurt, bruised and wounded, and became and was sick, ill and disordered, and so hath remained thence hitherto, and thereby also"] the said ship or vessel of the plaintiff, with its appurtenances, was then and there greatly broken, strained, damaged and injured, and divers goods of the plaintiff therein being, to wit, of great value, to wit, dollars, were destroyed and wholly lost to the plaintiff; and thereby also the plaintiff incurred and was subjected to divers expenses, to wit, to the amount of dollars, in weighing and raising his said ship or vessel from and out of the said river, and clearing the same from water, and having the same removed and surveyed, and the damage done thereto estimated, and the plaintiff then and there incurred other expenses, to wit, dollars, in and about the preserving and picking up divers materials and things belonging to and being in the said ship or vessel of the plaintiff; and also by reason of the premises, the plaintiff lost and was deprived of the use of his said ship or vessel, for a long time, to wit, from the time of committing the said grievances hitherto, and hath thereby been deprived of divers gains and profits which otherwise might and would have accrued to him from the use thereof; and thereby also the plaintiff lost the freight and reward, to wit, dollars, which would otherwise have been payable to him for freight for conveying in his said ship or vessel divers goods, to wit, which were therein when she was so sunk as aforesaid, and was and is by reason of the premises otherwise injured, to wit, at said county. To the damage, [&c.]