tion alleges that the plaintiff duly appointed the defendant
one of his deputies for the purpose of making and granting
replevins within the county, pursuant to the statute in such
case made and provided. The plea asserts that the plain-
tiff did not depute, appoint and proclaim the defendant,
and that he was not deputy at the time when, &c. The
first point is, whether proclamation is necessary to clothe
the defendant with the character of deputy, because, if it is
not, the plea takes issue upon what is not alleged in the
declaration, and is bad on that ground. Neither can the
plaintiff be compelled to accept an issue in terms which
would put him to the proof of an allegation unnecessary to
the maintenance of his action. Goram v. Sweeting (a),
Moore v. Boulcott (b), Stubbs v. Lainson (c). Where a plead-
ing contains several allegations, some of which are material,
and some not, a traverse which puts in issue not only what
is, but what is not material, is bad: Thurman v. Wilde (d).
But proclamation was not necessary to constitute the
defendant deputy in this case, for it does not appear by the
record that he was a deputy appointed by the statute 1 & 2
P. & M. c. 12.
The declaration only says he was
appointed deputy pursuant to the statute; this might have
been the statute of Marlbridge. At common law the sheriff
could not grant replevins except upon a writ issuing out of
Chancery and then only in his county court. But it being
found inconvenient that the goods should be detained from
the owner from county court to county court, the statute of
Marlbridge enabled the sheriff upon plaint made to him,
without writ, to make replevin out of court, and this he
might do by himself or by his bailiffs. 2 Inst. 139; Bac.
Abridg. Sheriff, H. 4; Bac. Abridg. Bailiff, A. The
sheriff therefore by the statute of Marlbridge may grant
replevins out of court by his deputy; but proclamation is
only required under stat. 1 & 2 P. & M. c. 12. If then
there is nothing on the record to shew that the defendant
(a) 2 Wms. Saunds. 204. (b) 1 Bing. N. C. 323.
(c) 5 Dowl. P. C. 162.
(d) 11 A. & E. 458; S. C. 3 P. & D. 289.
was appointed deputy under the statute of 1 & 2 P. & M.
c. 12, he must be taken to have been appointed under the
statute of Marlbridge, and then proclamation is altogether
unnecessary. But, assuming that the defendant was deputy
under the statute, its provisions with regard to the procla-
mation of the deputies are only directory, and the omission
to proclaim the defendant does not prevent him from being
deputy, but only subjects the sheriff to a penalty.
object of the statute was to relieve parties grieved by vex-
atious distresses, and enable them to obtain a more speedy
delivery of their cattle distrained, by providing a certain
number of known deputies for the purpose of making
replevins. But to hold proclamation essential to the
appointment of a deputy would impede the object of the
statute, for the sheriff is not to proclaim the deputies till
his first county day, and thus, if there be no deputy till after
proclamation, there would be no deputy between the
appointment of the sheriff, and his first county day. The
words of the section also are all in the affirmative: they
may therefore be directory when such a construction is
in furtherance of the object of the legislature: Dwarris,
Statutes, 712; Rex v. Leicester (a); Gwynne v. Burnell (b);
judgment of Parke B.; Pearse v. Morrice (c); judgment of
Taunton J.; Rex v. Mayor of Norwich (d).
But, assuming proclamation to have been necessary in order to constitute the defendant deputy, it does not lie in his mouth, after he has accepted the appointment, and acted under it, to say that he was not duly appointed. Here the declaration states that the defendant then accepted such appointment, and continued to be and was such deputy from the time of his said appointment until, &c. and during all the time aforesaid acted and was one of the deputies of the plaintiff. There is no denial on the record that the defendant acted as deputy, and his acceptance of the office, and acting, is a personal estoppel against his
(a) 7 B. & C. 12; S. C. 9 D. & R. 772.
(b) 2 Bing. N. C. 39.
(c) 2 Ad. & Ell. 96; S. C. 4 N. & M. 48.
(d) 1 B. & Ad. 310.
saying that he was not duly appointed. The words in the declaration "pursuant to the statute in such case made and provided," may be rejected; Bennet v. Talbois (a); Com. Dig. Action on Statute, (C) and (H), and the defendant having accepted the office and acted as deputy, is liable for gross negligence; Coggs v. Barnard (b), Doorman v. Jenkins (c), even though his services were gratuitous. [Coleridge J. referred to the case of Griffiths v. Stephens (d).] In that case the statutes were not referred to; the question turned on the fact of appointment, and the point was never raised that, if the replevin clerk had not been proclaimed, he would have been without authority, but here there is an appointment in fact, and so far Griffiths v. Stephens (d) is an authority for the plaintiff.
Lastly, the plea is bad for duplicity. It avers that the plaintiff did not depute, appoint and proclaim the defendant, and that the defendant was not deputy at the time when, &c. This traverse tenders several distinct issues. Suppose the plaintiff at the trial can prove an appointment, but not a due proclamation, the jury must find that the defendant was appointed, but not proclaimed; or suppose he had been duly appointed and proclaimed, but had resigned, then they must find the first part of the issue for the plaintiff, and the latter for the defendant. The traverse here is first of the due reception of the office by denying the defendant's appointment and proclamation, and then a distinct traverse of his continuance in the office by virtue of the appointment. In Faulkner v. Chevell (e), to a declaration in debt on the statute 22 Car. 2, c. 46, s. 14, charging the defendant that he being deputy clerk of the peace practised at the sessions as an attorney, the defendant pleaded that he was not at the time, when, &c. deputy clerk of the peace, nor did he commit any of the said supposed offences in manner and form, &c., and the plea was held bad for
(a) Com. 26.
(b) Ld. Raym. 909.
(c) 2 Ad. & Ell. 256; S. C. 4 N. & M. 170.
(d) 1 Chitty, 196.
(e) 5 Ad. & Ell. 213; S. C. 6 N. & M. 704.
duplicity. So in Hulme v. Mugglestone (a). In Rowe v. Ames (b), the declaration alleged that the defendant seized the goods of one R. Waring and remained in possession of the said goods for a long space of time. The defendant pleaded that he did not seize or take in execution any goods of the said R. Waring, or remain or continue in possession thereof by virtue of the said writ, and the plea was held double. The principle is that a proposition embracing two different points of place or time shall not be submitted as a single issue: Smith v. Dixon (c). Robinson v. Rayley (d) is usually cited, but in that case the several facts stated in the plea made up but one single point of defence.
Erle in support of the plea. The plea is grounded on the assumption that the declaration charges the defendant as deputy under the statute of 1 & 2 P. & M. c. 12. By stating that the plaintiff duly appointed the defendant deputy under the statute, and that the defendant accepted such appointment, the declaration in substance states that the defendant was replevin clerk at the time in the declaration. This he could not have been, if he had never been proclaimed; the plea therefore properly denies in the words of the statute that the plaintiff did depute, appoint and proclaim the defendant deputy. It is true the words depute and proclaim, which are inserted in the plea, are not in the declaration, but they are implied in the assertion that the plaintiff duly appointed the defendant according to the statute, and therefore are properly traversed in express terms by the plea: Meriton v. Briggs (e), Chambers v. Jones (f). It cannot be intended that the defendant was deputy under the statute of Marlbridge, for that statute gave the sheriff no authority to appoint a deputy for that purpose. Bac. Ab. Replevin (C). Nor is the passage cited
(a) S M. & W. 30.
(b) 6 M. & W. 747.
(c) 7 Ad. & Ell. 1; S. C. 1 N. & P. 1.
(d) 1 Bur. 316.
(e) 1 Ld. Raym. 39.
(ƒ) 11 East, 406.
from the 2nd Inst. 139, any authority for that position, for
the sheriff is to grant replevins post querimoniam sibi factam.
The argument in Wilson v. Hobday (a) bears on the ques-
tion, and shews that the power of granting replevins out of
court is by the statute of Marlbridge confined to the she-
riff alone. Besides it appears clearly from the statute
1 & 2 P. & M. c. 12, that the office of replevin clerk was
a new office created by that statute, the words of the section
being, "for the more speedy recovery of cattle." There is
therefore no distinct authority for the sheriff appointing a
deputy for granting replevins previous to the statute, and
there being a known replevin clerk deriving his authority
from the statute, the plaintiff must be understood to have.
intended that officer, and cannot resort to any supposed
deputy deriving his authority from some other source.
Next the defendant was not duly appointed deputy until he
had been proclaimed. The words of the statute are not
directory, nor do the authorities cited for the plaintiff apply,
for the statute declares what shall be proof of appointment.
Till the first county court there is no legal deputy; then the
sheriff appoints by proclamation of the officer; before pro-
clamation the sheriff might revoke his appointment; but
the deputy derives his legal character from the appointment
followed by proclamation. The words of the statute are
"which said deputies so appointed and proclaimed shall
have authority." Nor is the defendant estopped from this
defence. The plaintiff has no right to look to other parts
of the record to see whether there is sufficient to support
the declaration. If the defendant was never deputy at all,
the ground of action fails, because the allegation of neg-
ligence depends upon the fact of the defendant being deputy
at the time, that is the prominent cause of action. [Cole-
ridge J. The argument of the plaintiff is that the defendant.
would be responsible even although a gratuitous agent.] If
that be so, the plea leaves a good cause of action un-
answered, and the plaintiff may have the advantage of it by
(a) 4 M. & S. 120.
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