1

or irregularity in the previous proceedings 1 or the charge contained in it be utterly unfounded.2 But if it be defective on the face of it, as if there be a mistake in the name of the party to be arrested, or if the name of the officer or party to be arrested be inserted without authority and after the issue of the process, the apprehension may be resisted and the killing of the officer will be manslaughter only.3

The phrase above quoted "for the officers ought not to examine the judicial act of the Court whose servants they are, nor exercise their judgment touching the validity of the process in point of law," is one which requires interpretation. It may be thus stated. Being satisfied that the act of which the process issuing in a due and regular manner is the consequence, is the judicial act of the Court whose servants they are, they are not to inquire further, but are bound to execute it. But it is quite clear that they are bound to inquire so far as to satisfy themselves that it is the judicial act of such Court. And it is obvious that it may prove not to be so in two modes—first, that the process is feigned, forged or simulated, and is not the process or order of the Court, or second (which is the third condition under which such warrants and orders may issue) that the Court has in the specific instance manifestly exceeded its jurisdiction,5 inasmuch as it was unable to take cognisance of the cause or matter in which the process issued."

Here it is no defence to the officer if he execute it, and he can derive no protection from it.

[The law of Scotland appears to be practically the same."]

8

With regard to justification, it has been held that a man acting under legal authority is not confined to the authority under which he has professed to act at the time when he acted, but he may resort to any other authority which justified his proceeding. Again, where the judgment is subsequently reversed as being wrong in point of law, all irregular process under it before the appeal is heard is good, and affords a justification to all parties acting under it.9

In pleading, the defendant is bound to set forth the warrant, and rest his justification upon it,10 but he need state nothing in the defence but the issue thereof.11

The greater part of the cases which occur in which officers of the superior Courts are concerned are those in which the defendant is—

[Aitkin v. Fin

11 Hale P. C. 457. lay, 15 S. 683.] 21 East P. C. 310; Green v. Elgie, 5 Q. B. 99; Ex parte Fernandez, 10 C. B. N. S. 3.

3 Ibid.

385; and see R. v. Danser, 6 T. R. 245.

7 See Smith on Reparation.

8 Per Williams, J., Hooper v. Lane, ubi supra.

9 Weiss v. Smith 14 C. B. N. S.

Hooper v. Lane, 6 H. L. C. 443; 596; Smith v. Sydney, L. R. 5 Q. B. 27 L. J. Q. B. 75. 203; 39 L. J. Q. B. 144.

5 Stockdale v. Hansard, 9 Ad. & E. 1. 6 Rutland, ubi supra; Parsons v. Lloyd, ubi supra; Smith v. Bourchier, 2 Stra. 994; Perkins v. Proctor, 2 Wils.

10 Greene v. Jones, 1 Wms. Saund. 298, n. 1.

11 Lev. p. 191 a.; Com. Dig. Pl. 3 M. 24; Britton v. Cole, 1 Salk. 408.

THE SHERIFF,

whose position in point of law is peculiar. Although he is the officer entrusted with the execution of the Queen's writs, practically he never executes in person, but employs under-sheriffs, bound bailiffs and others, for that purpose. The writ which goes to the sheriff has upon its face an injunction to make out his warrant to his bailiff to levy the execution in question. The justification of the sheriff is the writ, of the bailiff the warrant. From this principle it follows that so far as the liability of the sheriff is concerned, it matters not what is the form of the warrant which he issues to the bailiff. He is not only liable for the acts of the bailiff done under the warrant, but also for any mistake or misconduct committed in the course of the execution. It is no defence for the sheriff to say that his orders were not attended to. He still remains liable, provided the act complained of be one which the officer was bound to do while acting in execution of the sheriff's orders, and an actual recognition by the sheriff of such acts is not necessary.

3

5

"There is no doubt that the sheriff is liable for all acts done and neglects of duty by the bailiff in the execution of a writ, on the ground that if the sheriff thinks fit to commit the execution of a writ, which he is bound to execute, to another, he is responsible if that person does not execute it properly, and is in the same condition as if he had executed it himself, the case of a sheriff differing in this respect from the liability of an ordinary principal, for the acts of an agent who does not pursue the authority committed to him." "18 And this is so "for the sake of securing a responsible recourse for indemnity in case of any wrong done in the execution of process".9

[In Scotland the messenger-at-arms is liable in practically the But he executes in person, and his cautioners, i.e. sureties, are generally sued with him.]

same way.

In order to render the sheriff liable for the act of his officer, it is sufficient to produce the warrant, without the writ, and it lies upon the sheriff to prove that no such writ issued,10 but the mere proof that the officer is the bailiff of the sheriff, without producing the warrant is not sufficient 11 unless there be recognition by the sheriff that the officer acted under his authority, which will dispense with the necessity of producing the warrant.1 If the officer swear that the

12

9 Per Erle, J., Hooper v. Lane, ubi supra. As to a writ directed to the coroner, see Serjeant v. Cowan, 1 Cr. & M. 491.

10 Gibbins v. Phillips, 2 M. & R. 238; 7 B. & C. 535; Grey v. Smith, Camp. 387. See George v. Perring, 4 Esp. 63. 11 Drake v. Sykes, 7 D. & E. 113. 12 Jones v. Wood, 3 Camp. 228; Shepherd v. Wheble, 8 C. & P. 534; Martin v. Bell, 1 Stark. 413.

warrant existed, though it be lost, it is sufficient,1 and in such cases secondary evidence is admissible.2

Where the warrant recites the writ, evidence of the judgment is not necessary.3 And it has been held that the sheriff need not prove the writ where the plaintiff claims by virtue of an assignment which is void as against creditors.4

Proof of the indorsement of the officer's name on the writ by a clerk in the under-sheriff's office is prima facie evidence to connect the sheriff.5

Where the execution took place at the time of year when the sheriffs were changed, and a witness after the case was set down for trial saw a form of return signed by the defendant, as sheriff, indorsed on the writ, which had never been returned, it was held sufficient to shew that he was the sheriff who executed the writ. The writ, when produced, having the name of the sheriff erased, it was held for the jury to say whether the erasure was made to correct a mistake, or to defeat the plaintiff."

In an action against a surviving sheriff of London, a return to a writ directed to both sheriffs, purporting to be that of both, is conclusive to shew that the return was authorised by the survivor.7

Admissions made by an officer while in possession under a writ are evidence against the sheriff, and if the officer be guilty of excess, even though it be contrary to the orders of the under-sheriff, the sheriff will not be allowed to bring evidence which would tend to disclaim his responsibility."

A sheriff's-officer who is subpoenaed to produce his warrant, need not be sworn.10

The Under-Sheriff. With regard to the under-sheriff, it appears that he is, while acting in that capacity, not liable for any neglect of duty, nor will an action lie against him for any default in him. For all such neglect or default, the sheriff is alone responsible. But this rule does not extend to cases of extortion on the part of this officer when proceeded against criminally, nor to any other liability criminally for unauthorised acts.12

Where the sheriff dies, the under-sheriff must, until a successor

1 Moon v. Raphael, 2 Scott 489; 2 Bing. N. C. 310.

2 Minshall v. Lloyd, 2 M. & W. 450; Taplin v. Atty, 3 Bing. 164.

3 Bessey v. Windham, 6 Q. B. 166; 14 L. J. Q. B. 7; White v. Morris, 11 C. B. 1015; 21 L. J. C. P. 185.

4 Ogden v. Hesketh, 2 C. & K. 772; and see Reid v. Poyntz, 8 Dowl. 410; M. & W. 412; 9 C. & P. 515.

5 Scott v. Marshall, 2 C. & J. 238; 2 Tyr. 257; Fermor v. Phillips, 5 Moo. 184; 3 B. & B. 27; Holt 537.

6 Whitehouse v. Atkinson, 3 C. & P.

413.

7 Carlile v. Parkins, 3 Stark. 163.
8 Jacobs v. Humphrey, 2 Cr. & M.

9 Scarfe v. Halifax, 7 M. & W. 288.

10 R. v. Menlis, M. & M. 515; Summers v. Moseley, 4 Tyr. 158; 2 C. & M. 477.

11 Cameron v. Reynolds, Cowp. 406.. In Ireland actions for neglect or misconduct lie also against this officer: 57 Geo. III. c. 68, s. 3.

12 Hescott, 1 Salk. 330; Laicock, Lat. 187; Rankin v. Kennedy, I. T. R.. 231.

be appointed, execute the office of sheriff, and while so doing he is liable in all respects as the sheriff, and may appoint a deputy.1

Where an assignment of a lease by deed taken in execution was made in the name and under the seal of office of the sheriff, by A. B., acting as under-sheriff, it was held that such assignment was sufficiently proved without further proving the appointment of A. B., as under-sheriff.2

The Bailiff.-Bailiffs are of three kinds, namely, special bailiffs, bound bailiffs and bailiffs of liberties.

A special bailiff is one appointed by the sheriff for the execution of a particular writ at the instance of the execution-creditor, or some other person similarly interested or his agent. The effect of the selection of such a bailiff is to relieve the sheriff from responsibility to the party at whose instance he was appointed, but to all other persons he is liable in the usual manner. What constitutes a special bailiff is matter of evidence in each case.5 A mere request that a particular officer may be employed is not sufficient, nor is mere interference with the officer on the part of the debtor.7

A bound bailiff is the one usually employed by the sheriff.

It is no part of the duty of this officer to receive writs of execution from the parties.

If the warrant be addressed to him alone, and not to him and his assistants, he must himself execute it, or, at any rate, be near at the time of execution.10 The receipt of money by the bailiff in satisfaction of a judgment-debt is receipt by the sheriff, and the sheriff is liable therefor, although there is no evidence of the money coming to his hands. The bailiff would appear to be personally liable for a false return.12 There is no liability criminally on the part of the sheriff for the acts of the bailiff, 13 and this includes proceedings for penalties for extortion against the officer. 14 In such case the sheriff is irresponsible.15

A liberty is a district in regard to which grants have been anciently made by the Crown to individuals conferring on them or their bailiffs the exclusive privilege of executing legal process therein.16 Westminster and Pontefract are instances of such liberties. The powers, duties and liabilities of a bailiff of a liberty are similar

150 & 51 Vict. c. 55, s. 25. I., 45

& 46 Vict. c. 49, s. 40.

2 James v. Brown, 5 B. & Ald. 243. 3 Pallister v. Pallister, 1 Chit. 614. 4 Wat., 2nd ed., p. 41.

5 Ford v. Leche, 6 A. & E. 699; 1 N. & P. 737.

6 Wright v. Child, L. R. 1 Ex. 358; 35 L. J. Ex. 209; 15 L. T. 141.

7 Corbet v. Brown, 6 D. P. C. 794. In I. such bailiffs may be appointed for civil bill decrees: 34 & 35 Vict. c. 99, s. 5. 8 Triminger v. Keene, W. N. (1882),

p. 106.

9 R. v. Noonan, 10 Ir. C. L. R. 505. 10 Wat., p. 70.

11 Woodman v. Gist, 8 C. & P. 213; Jones v. Perchard, 2 Esp. 507; Gregory v. Cotterell, 5 El. & Bl. 571; 25 L. J. Q. B. 33.

12 Jackson v. Hill, 10 Ad. & E. 477; 2 P. & D. 455.

13 Sanderson v. Baker, 3 Wils. 309; 2 W. Bl. 832; Woodgate v. Knatchbull, 2 D. & East 154.

14 50 & 51 Vict. c. 55, s. 29. I., see 57 Geo. III. c. 68, s. 3.

15 Woodgate v. Knatchbull, ubi supra.. 16 Steph. Comm. 11th ed., p. 640.

to those of a bound bailiff.1 When the king is a party, or the writ contains a non omittas clause, the sheriff or his officer must enter the franchise and execute the writ. And in any other case he may enter, and the execution is not on that account irregular; but the lord may recover compensation from the sheriff, for an infringement of his right; though the party against whom the writ was issued has no remedy.2 When the sheriff has made out his mandate to the bailiff of a liberty, the bailiff and not the sheriff is responsible.3 Process directed in the first instance to the bailiff of a franchise is void, and the bailiff executing it is guilty of a trespass against the party whose goods are taken in execution, for he is not the recognised officer of the Court, but the sheriff.5 The sheriff's mandate requires the bailiffs of the liberty to make their return to the sheriff; but, in practice, such return is made direct to the Court.6

UNDER WARRANTS AND ORDERS OTHER THAN THOSE OF
SUPERIOR COURTS AT COMMON LAW.

A. AFTER ADJUDICATION.

The liability of an officer when acting under a warrant or order of this class where there has been an adjudication is practically identical with that of an officer acting under warrant or order of a superior Court at common law, the main distinction being that which was pointed out at the commencement of the work, namely, that whereas the presumption in favour of jurisdiction is general in the case of warrants and orders of the kind last mentioned, it extends only to what appears on the face of the particular instrument in the case of these warrants and orders.

Putting aside this distinction, the rule as to liability is the same, namely, that where an officer acts under a warrant or order of the class we are now considering, which shows on its face to have been made (1) within the jurisdiction of the Court or person issuing it, or (2) apparently so, it is a complete justification to the officer. On the other hand, where it clearly appears to have been made without such jurisdiction, being beyond the scope of the powers delegated to the Court or officer issuing it, it is no protection to the officer, and he can derive no shelter from what is practically a piece of waste paper.s It is necessary for a party who relies upon the decision of an inferior tribunal to show that the proceedings were within the jurisdiction of the Court.9 An officer of an inferior Court may justify acting