Where the defence is, that the goods in question were assigned before the execution, the plaintiff, in reply, may shew the assignment to have been fraudulent. Dewey v. Bayntun, 6 East, 257.

The defendant cannot give in evidence, even in mitigation of damages, an inquisition held by him to inquire into the property of the goods, under which they were found not to be the property of the debtor. Glossop v. Pole, 3 M. & S. 175.

Damages.] Where the sheriff is sued for returning nulla bona, instead of levying on certain property which belonged jointly to the debtor and to another, the proper measure of damage is half the value of the goods. Tyler v. Duke of Leeds, 2 Stark. 218.

Competency.] The following decisions occurred before disqualifications by reason of interest were removed by statute. A person who has forcibly taken the goods out of the hands of the sheriff is competent to prove his own property in them; for the sheriff cannot maintain an action against him for the rescue after a return of nulla bona. Thomas v. Pearse, 5 Price, 547. And the assistant to a sheriff's officer, who has been left in possession under an execution, is a competent witness for the sheriff; for, as he was not employed by the defendant himself, the judgment would not be evidence either for or against the witness. Clark v. Lucas, R. & M. 32.

For Extortion.

The evidence in this action depends entirely on the allegations in the declaration, and the pleadings.

In debt on 28 Eliz. c. 4. for extortion in executing a fi. fa., if the plaintiff states the judgment in his declaration, and that execution was sued out on the said judgment, it must be proved. Savage v. Smith, 2 W. Bl. 1101.; Peppin v. Solomons, 5 T. R. 498.

The mode in which the issuing of the fi. fa. (antè, p. 609.) and the connexion between the sheriff and the bailiff (antè, p. 602.) may be proved, has been already stated. If the sheriff has returned to the writ that he has caused to be levied, &c., it will be evidence that he has adopted the act of the bailiff as his own. Woodgate v. Knatchbull, 2 T. R. 154. It must appear that the sheriff intrusted the bailiff with his authority in the particular case in which the latter has abused it, and therefore, if the extortion be committed by an officer not named in the warrant, to whose house the party had been carried, the sheriff is not liable. George v. Perring, 4 Esp. 63. So where a writ is directed to the coroner, though it is executed by an officer of the sheriff, the latter is not liable. Sarjeant v. Cowan, 1 C. & M. 491.; S. C. 3 Tyrwh.

538.

Where the money levied is not sufficient to satisfy the plaintiff's claim, the retaining of any part which ought to be paid over to the plaintiff, is an indirect receiving or taking from him within the statute 28 Eliz. c. 4. Buckle v. Bewes, 3 B. & C. 688.

In actions against a sheriff's officer on 32 Geo. 2. c. 28., it was formerly held that the plaintiff must prove a table of fees allowed by the justices. Jaques v. Whitcomb, 1 Esp. 361.; Martin v. Slade, 2 New

Rep. 59. In Martin v. Bell, 6 M. & S. 220., it was held by the court of King's Bench, that this table did not apply to the sheriff's fees for an arrest, but that what is allowed by the master on taxation is what he is by law to take. But in Innes v. Levy, 4 Dowl. P. C. 116., S. C. 2 Scott, 189., Philpott v. Selby, Scacc. T. T. 1835, and Plerin v. Prince, 10 A. & E. 494., it was held that the stat. 23 Hen. 6. c. 9. was then in force, which prohibits the sheriff from taking more than 1s. 8d., and the bailiff more than 4d. This statute is now repealed by 7 W. 4. & 1 Vict. c. 55. which permits sheriffs and their officers to take such fees, and no more, as are allowed by the officers of the courts of law at Westminster under the sanction of the judges. And by 5 & 6 Vict. c. 98. s. 31., after 1st March 1843 no poundage shall be taken by sheriffs, bailiffs, and others for taking the body in execution; and only such fees shall be taken by the sheriff, or persons having return of writs, as shall be allowed under 7 W. 4. & 1 Vict. c. 55.

APPENDIX, No. I.

As the late rules on pleading, and on the proof of documents, are frequently referred to at Nisi Prius, it has been thought advisable to insert, at the close of this work, the following extracts from them.

REGULE GENERALES.

Hilary Term, 4 W. 4.

Rule 20. Either party, after plea pleaded, and a reasonable time before trial, may give notice to the other, either in town or country, in the form hereto annexed, marked A., or to the like effect, of his intention to adduce in evidence certain written or printed documents; and unless the adverse party shall consent, by indorsement on such notice, within forty-eight hours, to make the admission specified, the party requiring such admission may call on the party required, by summons, to shew cause before a judge why he should not consent to such admission; or, in case of refusal, be subject to pay the costs of proof. And unless the party required shall expressly consent to make such admission, the judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice, which shall be proved at the trial to the satisfaction of the judge, or other presiding officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause. Provided that, if the judge shall think the application unreasonable, he shall indorse the summons accordingly.

Provided also, that the judge may give such time for inquiry or examination of the documents intended to be offered in evidence, and give such directions for inspection and examination, and impose such terms upon the party requiring the admission, as he shall think fit.

If the party required shall consent to the admission, the judge shall order the same to be made.

No costs of proving any written or printed document shall be allowed to any party who shall have adduced the same in evidence on any trial, unless he shall have given such notice as aforesaid, and the adverse party shall have refused or neglected to make such admission, or the

judge shall have indorsed upon the summons that he does not think it reasonable to require it.

A judge may make such order as he may think fit respecting the costs of the application, and the costs of the production and inspection; and, in the absence of a special order, the same shall be costs in the

in evidence the several documents hereunder specified, and that the same may be inspected by the defendant, his attorney, or agent at

on

defendant

that the { plaintiff

I will be required to admit that such of the said

}

documents as are specified to be originals were respectively written, signed or executed as they purport respectively to have been; that such as are specified as copies, are true copies; and such documents as are stated to have been served, sent, or delivered, were so served, sent or delivered respectively; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c.

[Here describe the documents; the manner of doing which

may be

as follows:]

ORIGINALS.

Description of the Documents.

Deed of Covenant between A. B. and C. D. first

part, and E. F. second part

Indenture of lease from A. B. to C. D.

Date.

first}

1st Jan. 1828.

1st Feb. 1828.

Indenture of release between 4.B. C.D. first part, 2nd Feb. 1828.

Letter, defendant to plaintiff

1st March, 1828.

Policy of insurance on goods by ship Isabella, on 3d. Dec. 1827. voyage from Oporto to London

Memorandum of agreement between C.D. captain

Bill of exchange for 1007, at three months, drawn

1st Jan. 1828.

by A. B. on, and accepted by C. D. indorsed by 1st May, 1829. E. F. and G. H.

WHEREAS it is provided by the statute 3 & 4 W. 4., c. 42., s. 1., that the judges of the superior courts of common law at Westminster, or any eight or more of them, of whom the chiefs of each of the said courts should be three, should and might, by any rule or order to be from time to time by them made, in term or vacation, at any time within five years from the time when the said act should take effect, make such alterations in the mode of pleading in the said courts, and in the mode of entering and transcribing pleadings, judgments, and other proceedings in actions at law, and such regulations as to the payment of costs, and otherwise, for carrying into effect the said alterations, as to them might seem expedient, which rules, orders, and regulations were to be laid before both houses of parliament, as therein mentioned, and were not to have effect until six weeks after the same should have been so laid before both houses of parliament, but after that time should be binding and obligatory on the said courts, and all other courts of common law, and be of the like force and effect as if the provisions contained therein had been expressly enacted by parliament. Provided that no such rule or order should have the effect of depriving any person of the power of pleading the general issue, and of