name, and in his name of office; and in actions on bail bonds, the process must be by writ of summons, as in all other personal actions. If the action be brought by the present sheriff, the writs of execution and other writs in the cause cannot of course be directed to himself, but must be directed to the coroners; Weston v. Coulson, 1 W. Bl. 506; if by the late sheriff, they may be directed to the present sheriff.

Actions against them.] All actions for a breach of duty in the office of sheriff, may be brought against the high sheriff, although arising from the default of the under-sheriff or sheriff's officer. Cameron v. Reynolds, Cowp. 403. Even where a sheriff's officer arrested and detained a defendant, under pretence of a warrant, which had been issued on a fi. fa. the court held that the defendant might maintain trespass for it against the sheriff. Smart v. Hutton, 2 Nev. & M. 426. So, if by the delay of the officer, in selling goods seized by him under a fi. fa., the plaintiff be injured, he may maintain an action against the sheriff. See Bales v. Wingfield, 2 Nev. & M. 831. So if a sheriff's officer, under an execution against A., seize and sell the property of B., B. may maintain an action of trespass for it against the sheriff, and recover the value of the goods, and not merely the sum for which they were sold. Lockley v. Pye, 10 Law J., 305, ex.

So, if the officer, after arresting a defendant, allow him to go at large, without taking a bail bond, an action of escape will lie against the sheriff, if bail above be not put in and perfected. Fuller v. Prest, 7 T. R. 109. See Pariente v. Plumbtree, 2 B. & P. 35. Allingham v. Flower, 2 B. & P. 246. Birn v. Bond, 6 Taunt. 554. But no action as for an escape will lie against the sheriff, for his officer keeping the defendant in his custody after the return of the writ, instead of taking him to prison, if the plaintiff have not been delayed or prejudiced in his suit by it. Plank v. Anderson, 5 T. R. 37. And it is against the sheriff, in whose time the escape occurred, that the action must be brought, although the officer continue to be the officer of the new sheriff, and the new sheriff have returned the writ. R. v. Sh. of Middlesex, 4 East, 604.

So, if the officer take a defendant upon a ca. sa. and allow him to go about with the officer's follower, before he takes him to prison, an action for an escape will lie against the sheriff. Benton v. Sutton, 1 B. & P. 24. So, where the officer, under a warrant upon a ca. sa. not having any clause of non omittas in it, entered a franchise and arrested the defendant, and suffered him to go at large without removing him, it was holden that an action for an escape would lie against the sheriff. Piggott v. Wilkes, B. & A. 502. Even if the officer allow a party, arrested under a ca. sa., to go at large, upon receiving from him the amount of the debt and costs, it will be

an escape, and an action will lie against the sheriff. Slackford v. Austin, 14 East, 468.

The process in actions against the sheriff, is by writ of summons, as in ordinary actions.

Rule to return a writ of mesne process.] It is the duty of the sheriff to return the writ of capias, immediately after his officer has executed it. 2 W. 4, c. 39, sch. 4. If he do not, the plaintiff may rule him to do so. And he may be thus ruled to return the writ, immediately after he has executed it. The sheriff, however, must be called upon by rule, within six lunar months after the expiration of his office; 20 G. 2, c. 27, s. 2, R. v. Adderley, 2 Dug. 463; otherwise no attachment can issue against him for not obeying it, Yrath v. Hopkins, 2 Cr. M. & R. 250, even although he was verbally requested to do so before that time. R. v. Jones, 2 T. R. 1.

But the sheriff cannot be ruled to return the writ, after the plaintiff has taken an assignment of a valid bail bond, Williams v. Jacques, 1 Tidd, 307, and see Anon. 2 Chit. 391, or after the parties have compromised the action, see Alchin v. Wells, 5 T. R. 470, but see Balson v. Meggat, 4 Dowl. 557, cont., or where the writ has been executed by a special bailiff appointed by the plaintiff. De Moranda v. Dunkin, 4 T. R. 119. Hamilton v. Dalziel, 2 W. Bl. 952. See Balson v. Meggat, 4 Dowl. 557. Harding v. Holden, 10 Law J., 229, cp. Where the plaintiff obtained the warrant, and sent it to the officer by post, but the letter not being post paid, the officer refused to take it in: the court held that under these circumstances, the plaintiff could not rule the sheriff to return the writ. Hart v. Weatherley, 4 Dowl. 171. It may be useful to mention that the defendant may also rule the sheriff to return the writ, if it become necessary for him to do so, as for instance, where upon arrest he deposits a sum of money in lieu of a bail bond, and he afterwards wishes it to be paid into court. France v. Clarkson, 2 Dowl. 532.

Where there has been a change of sheriffs since the delivery of the writ, and the writ has been executed by the old sheriff or not at all, care must be taken to rule the late sheriff, and not the present sheriff, to return it, and he must be designated the late sheriff in the rule, otherwise no attachment can be founded upon it; R. v. Sh. of Cornwall, 7 Dowl. 600; or if an attachment have issued, the court upon application will set it aside for irregularity. Thomas v. Newnam, 2 Doul. N. C. 33. Cassidy v. Stewart, 3 Man. & Gr. 575.

The rule may be had in term time, upon furnishing the officer who acts as clerk of the rules with the name of the cause, and the sheriff to whom the writ was directed. It is. not necessary that there should be any affidavit. R. G. H. 1 Vict. And by stat. 2 W. 4, c. 39, s. 15, any judge of the

courts of law at Westminster, in vacation, may make an order for the return of such writ; and such order shall be of the same force and effect as a rule, except that no attachment shall issue for disobedience of it, until it shall have been made a rule of court. And by R. G. M. 3 W. 4, s. 13, "if such order be duly served, but obedience shall not have been paid thereto, and the same shall have been made a rule of court in the term then next following, it shall not be necessary to serve such rule of court, or to make any fresh demand of performance thereon, but an attachment shall issue forthwith for disobedience of such order, whether the thing required by such order shall or shall not be done in the meantime."

The service is usually by delivering a copy of the rule or order to the under-sheriff, or to his clerk at his office, and at the same time showing him the original; or if the sheriff have appointed a deputy in London, a similar service at his office will be sufficient. See 3 & 4 IV. 4, c. 42, s. 20. A service of the rule itself, instead of a copy, would not be bad. v. Jones, 3 Dowl. 315.

See Leaf

four days C. P.; in

The rule, in London and Middlesex, expires in after service; R. T. 6 G. 3, K. B.; R. H. 7 G. 3, other counties, &c. it is an eight day rule. R. G. M. 7 W. 4. Formerly, if the rule expired in vacation, the sheriff had the whole of the vacation to return the writ. But now, by R. G. H. 2 W. 4, s. 11, he must file the writ at the expiration of the rule, or as soon after as the office shall be open.

Return thereto.] If the sheriff have been unable to arrest the defendant, he usually returns that he is not found in his bailiwick; where the return was, that he was not "to be found," it was holden bad, and the court awarded an attachment against the sheriff. Key v. MacKyntire, 5 Dowl. 453. R. v. Sh. of Kent, 2 Mees. & W. 316. If he have been unable to execute the writ from any other cause, he returns it specially. A return that the defendant was insane, and could not be taken or removed without danger of his own life and that of the officer, was holden bad, because it did not allege that he continued so until the return of the writ; but if that had been alleged, the court would have received the return, and would not have awarded an attachment. Cavenagh v. Collet, 4 B. & A. 279, and see Pasmore v. Wilkinson, 3 Dowl. 635. If however the sheriff have taken the defendant, and allowed him to go at large upon giving a bail bond or otherwise, he returns cepi corpus et paratum habeo; but this return will not be sufficient, where the sheriff has the defendant in actual custody, R. v. Sh. of Wilts. 1 Bing. 423, but the return must show that he is in actual custody, and in what prison. Where the return was, that the sheriff arrested the defendant, but that he rescued himself, and was not afterwards found, it

was objected that it was no return to say that the defendant rescued himself,-but the court held it to be sufficient; it was then objected that it was not said that the defendant was taken within the county, and if he were not, he might lawfully have rescued himself,—and for this defect the return was holden bad. R. v. Sh. of Middlesex, 1 B. & A. 190. Where the return stated the defendant to have been rescued out of the custody of the sheriff's bailiff, and not of the sheriff, the court held it to be sufficient. Gobbey v. Dewes, 2 Dowl. 747, see Woodgate v. Knatchbull, 2 T. R. 155, cont. Where the writ was lost, but the sheriff gave notice of it to the plaintiff, and that the defendant was in custody, the court set aside an attachment for not returning the writ, holding that the plaintiff ought to have proceeded as if the sheriff had returned cepi corpus. R. v. Sh. of Kent, 1 Marsh. 289.

If the return be insufficient, Wilton v. Chambers, 1 Har. & W. 582, or if there be no return, the court upon application will grant an attachment against the sheriff; and in the former case, a copy of the return should be annexed to, and verified by, the affidavit, on which the motion is made. Id. But if the return be good upon the face of it, but false, the only remedy for the party is by action; the court will not interfere upon motion. Goubot v. De Crouy, 2 Doul. 86. See Hall v. Jones, 4 Dowl. 712.

The officer with whom the writ and return is filed, shall indorse on it the day and hour of filing it. R. G. H. 2 W. 4, s. 12.

Rule to bring in the body.] As soon as the writ is returned, if bail have not been put in, you may obtain a rule, or in vaca- tion a judge's order, requiring the sheriff to bring in the body. And an affidavit is not necessary for this purpose. R. G. H. 1 Vict. But if bail have then been put in, you must first except to them, before you obtain the rule or order; otherwise the proceedings will be irregular, Maycock v. Solyman, 1 New Rep. 139. R. v. Sh. of Middlesex, 7 D. & R. 264. R. v. Sh. of Middlesex, 8 T. R. 258. R. v. Sh. of London, 5 Dowl. 387. This rule or order may in all cases be obtained on the day next after the writ has been returned, or on the same day, Pouchee v. Lieven, 4 M. & S. 427, if the time for putting in bail have then expired. Rolfe v. Steele, 2 H. Bl. 276. R. v. Sh. of Middlesex, 8 East, 525. Hutchins v. Hird, 5 T. R. 479. Gore v. Williams, 3 Anst. 653. If the bail have already justified, or if they have been put in twenty days and have not been excepted to, of course no body rule or order can regularly be sued out. So, after the defendant was superseded for want of declaration, it was holden that the sheriff could not be ruled to bring in the body. Jones v. Lander, 6 T. R. 753. So, after the plaintiff had recovered against the sheriff in an action for an escape of the defendant, the court held that he could not rule the sheriff

to bring in the body. Barwick v. Walton, 2 B. & A. 623. So, after the defendant was discharged by order of the plaintiff, it was holden that the sheriff could not be ruled to bring in the body, although the plaintiff had previously assigned the debt, and the sheriff had notice of it. Hookham v. Monkton, 6 Moore, 497. So, by taking a warrant of attorney or cognovit from the defendant, payable by instalments, the plaintiff discharges the sheriff. Brown v. Neave, Wightw. 121. R. v. Sh. of Surrey, 1 Taunt. 159. And the rule to bring in the body, must also be taken out within a reasonable time, otherwise the court upon application will set it aside, although the delay has been occasioned by listening to proposals from the defendant. R. v. Sheriff of London, 1 Taunt. 111. So, where it might have been served on the first day of Hilary term, but was not in fact served until the first day of Easter term, owing to a negotiation between the plaintiff and the defendant, it was holden that the sheriff was thereby discharged, and an attachment which had been obtained against him was set aside. R. v. Sh. of Middlesex, } Dowl. 53. But if a sheriff return cepi corpus, he may afterwards be ruled to bring in the body, although he be out of office at the time. R. T. 31 G. 3, K. B. So, merely consenting to an order for staying proceedings on payment of debt and costs, R. v. Sh. of Middlesex, 2 Bing. 366, or time being given to add and justify another bail instead of one rejected, R. v. Sh. of London, 1 D. & R. 163, or the plaintiff declaring in the action, now that the capias is no longer process in it, R. v. Sh. of Montgomeryshire, 1 Dowl. N.C. 388, will not have the effect of discharging the sheriff.

Formerly the body rule could not be drawn up in vacation. But now, by R. G. H. 3 W, 4, "in case a rule of court or judge's order for returning a bailable capias shall expire in vacation, and the sheriff or other officer having the return of such writ shall return cepi corpus thereon" [or if the sheriff return cepi corpus without any rule or order, Bertram v. Davis, 6 Dowl. 180,] “a judge's order may thereupon issue, requiring the sheriff or other officer, within the like number of days after service as by the practice of the court is prescribed with respect to rules to bring in the body issued in term, to bring the defendant into court, by forthwith putting in and perfecting bail; and if the sheriff or other officer shall not duly obey such order, and the same shall have been made a rule of court in the term next following, it shall not be necessary to serve such rule of court, or to make any fresh demand thereon, but an attachment shall issue forthwith for disobedience of such order, whether bail shall or shall not have been put in and perfected in the mean time." In term time the rule is obtained in the same manner as the rule to return the writ; see ante, p. 29; and the rule or order is served in the manner mentioned, ante, p. 30.