was voluntary, as plaintiff must show in his replication that the escape was voluntary, if he means to rely on that fact (b). If the defence be, that the escape arose from inevitable accident, or the Queen's enemies, or any other matter which excuses the Sheriff in point of law, it must be specially pleaded. As to evidence enough has been already stated for all Evidence practical purposes (c), except as to the judgment; and with respecially of nul tiel gard to it, the evidence necessarily depends upon the plea record. pleaded-whether nul tiel record is pleaded or not (d); if nul tiel record is pleaded, the record itself if a record of the same Court must be produced; if of another Court superior or inferior, it is proved by the tenor of the record certified under a writ of certiorari; if nul tiel record is not pleaded, the record is proved by exemplification or by an examined copy. In this form of action (as before stated) the jury cannot give Damages. less than what the creditor would have recovered against the prisoner, namely, the sum indorsed on the writ, and the legal fees of execution. against The Sheriff's remedy against the party escaping, when he has Sheriff's sustained damage, is by action on the case against him for such remedy damage; but note, if the escape was voluntary, the Sheriff has no party esmeans of reimbursing himself. caping. SECTION IV. FOR NOT ARRESTING WHEN THERE WAS AN OPPORTUNITY. What constitutes an arrest in law has been already stated (a). An arrest, The form of action for a breach of duty of this nature is an action on the case, and the declaration is, in matters of inducement, &c. similar to those already noticed for escapes, to the end of the statement of the delivery of the writ to the Sheriff, and then proceeds as follows: (b) 1 Vent. 211. (c) Ante, p. 368. (d) Vide Tidd, 801. (a) Ante, p. 310. what constitutes. Form of re medy. Pleas. "And the plaintiff saith that the said E. F. at the time of the delivery of the said last mentioned writ to the defendant, so being such Sheriff as aforesaid, and from thence, to wit, for one month then next following, was within the said Sheriff's bailiwick, and the defendant as such Sheriff, at any time during that period, could and might and ought to have taken and arrested the said E. F. by virtue of the said last mentioned writ, at the suit of the plaintiff, if he would so have done, whereof the now defendant during all that time had notice; yet the now defendant not regarding, &c. did not nor would at any time whilst the said last mentioned writ was in full force, (although often requested so to do,) take or cause to be taken the said E. F. as by the said last mentioned writ he was commanded, but then wholly failed and made default [and (b) the said E. F. did not cause special bail to be put in for him in the said action in the said Court of according to the exigency thereof, or otherwise observe the requisites of the said writ, but then wholly failed and made default] whereby," &c. The Sheriff's duty and breach of duty here alleged are that "he could and might and ought to have taken and arrested the said E. F. by virtue of the writ;" but that he did not take him, or cause him to be taken as herein commanded. The general plea of not guilty, therefore, as it operates " as a denial only of the breach of duty, and not of the facts stated in the inducement," simply puts in issue the fact of the Sheriff's neglect to arrest when there was an opportunity; all other pleas in denial must take issue on some particular matter of fact alleged in the declaration, and pleas in confession and avoidance must be specially pleaded. The term opportunity, as used, may appear prima facie equivocal, at all events to require some explanation, more especially as one might from some (c) authorities be inclined to infer that without express notice of the debtor's being in the defendant's bailiwick, and when or where he was to be found, the Sheriff was guilty of no breach of duty; notice too is usually averred in the declaration, which in some degree supports this doctrine; but in the case of Hereford v. M'Namara (d) the declaration was specially demurred to, because of the omission of an averment of notice, and it was held unnecessary. The Sheriff is bound to execute the process of the law in the (b) It is not necessary to state this; 2 Ch. Pl. 518, and cases cited. (c) Gibbon v. Coggan, 2 Camp. 189. (d) 5 Dowl. & Ryl. 97, recognized in Dyke v. Duke, 1 Arnold, 14. most effectual way (e). If, therefore, a party against whom he holds a writ does not abscond, but continues in the daily exercise of his usual occupation, appearing publicly as usual, is visible to every person that comes to him about business, and the bailiff neglects to arrest him, upon proof of these facts, without proof of express notice to him of such information as will enable him to identify and arrest, the Sheriff is liable in damages for a breach of duty. A Sheriff is bound to know every inhabitant in his baili- Sheriff wick (f). bound to know every inhabitant A bound-bailiff is not a competent witness for the defendant in his bailito prove that he endeavoured to make the arrest (g). wick. Evidence. The plaintiff is only entitled to such damages as the jury think Damages. fit to give him, and such as he can prove to have actually sustained by the Sheriff's neglect; but if plaintiff prove his case, he will be entitled to nominal damages. SECTION V. FOR NOT ASSIGNING BAIL BOND. Bail bonds were not assignable at common law, but now if one Bail bonds be taken upon process at common law, the Sheriff is bound by assignable. the statute of 4 Anne, c. 16, s. 20, on the request and cost of the plaintiff or his attorney, to assign it, and if he refuse to do Form of so, he is liable to an action on the case (a). action. As this action will necessarily henceforth be of rare occurrence Pleadings. in practice in consequence of the abolition of arrest on mesne process except in certain cases, it would be useless to do more here respecting the declaration, &c. than refer to the books of precedents wherein they are to be found (b); premising only, Plea of not guilty, effect of. Evidence. Damages. that the breach of duty alleged in the declaration is, the refusal to assign the bail bond when requested so to do, and on having the costs of the assignment offered to him. The plea of not guilty therefore as at present restricted, simply puts in issue these facts; all other pleas in denial must take issue on some particular matter of fact alleged in the declaration, and all matters in confession and avoidance be pleaded specially. Of the issues, when the original debt, the issuing and delivery of the writ, the arrest, &c. are traversed, nothing more need be said. If the giving the bail bond be in issue, notice to produce it should be given, and the service of such notice proved. If the general plea be pleaded, a demand and refusal must be proved, and it would seem a tender of the costs of assignment, for a tender of costs seems a condition precedent, but the authorities do not seem to go so far as to require proof of this. The plaintiff is only entitled to such damages as a jury think fit to give him; but if he prove his case, he will, at all events, be entitled to nominal damages. SECTION VI. FOR CARRYING TO TAVERN OR TO PRISON WITHIN Debt for Penalty on 32 Geo. 2, c. 28. As appears by the preamble of the statute (1759), so grievous and oppressive had the conduct of gaolers and inferior officers, in the execution of process for debt, become towards their distressed prisoners, that the legislature felt bound to interfere, and throw its mantle of protection around them; with this humane intent it was enacted, (amongst other things), "That no Sheriff, undersheriff, bailiff, serjeant at mace, or other officer or minister whatsoever, shall at any time or times hereafter convey or carry, or cause to be conveyed or carried, any person or persons by him or them arrested, or being in his or their custody, by virtue or colour of any action, writ, process or attachment, to any *** nor tavern, ale-house or other public victualling or drinking-house, There must be a refusal. submission There must be a refusal.—It is a condition precedent to the right of the officer to take his prisoner to gaol within twentyfour hours from the time of the arrest. A refusal may be in many ways, a prisoner may nominate and then refuse to go, or he may refuse to nominate, or he may nominate and go, and then refuse to stay (a). A mere omission (b) or neglect to do an act Omssion, is not a refusal, that word implies something more; neither is a neglect or mere submission. In one case (c) the officer said, you will go not enough. with me to the Granby," his prisoner said "very well," and it was holden not to be a refusal within the meaning of the statute, only a mere submission to the will of one who did not give him, at least inform him that he had, a choice of place for a limited time. The officer should have said, "you have the choice of going to any dwelling-house for the next twenty-four hours to a) 4 B. & Ad. 972. (b) Simpson v. Renton, 5 B. & Ad. 66 (c) Dewhurst v. Pearson, 1 Cr. & M. 372. |