money produced by the sale of the goods. Lord Denman said, "The rights of parties at trial are the same as they were at the commencement of the suit, or if they are changed, a plea puis darrein continuance ought to place the new facts. on the record. It is important to uphold the principle, that a party is entitled to recover by way of damage all that at the commencement of the suit he has lost through the wrongful act of the defendant" (g). This decision is certainly opposed to natural justice, and it seems equally opposed to the analogy of other actions. In trover, as we have seen, a re-delivery of the goods, even after action brought, will authorise the jury to give only nominal damages, unless actual loss has been caused by the detention or otherwise (). So in detinue, where the goods have been returned after the commencement of the suit, the judgment is only for the damages caused by the detention (i). In trespass, no doubt, an additional element enters into the verdict. It ought to comprise damages for the manner of the taking, for the value of the thing taken, and for the loss incurred by its being taken. But when the second item has been already paid for, why should it be paid for again in trespass, any more than in trover or detinue? It is difficult to see how any plea puis darrein continuance could have been framed, which would not have been bad on general demurrer, unless it had alleged that the money was paid and accepted in full satisfaction of all the causes of action, which it obviously was not. Anything short of this would have been merely a plea to the damages, and have left the taking unanswered (k). No doubt the defendant, instead of paying the money to the plaintiff, might have paid it into Court. But such a course would clearly have been less beneficial to the plaintiff, since it would have forced him to stop his action, or continue it at the risk of losing his costs (7); it is hard then to see why it should be so much more beneficial to the defendant. Nor is this like an attempt to surprise the plaintiff by setting up a new defence, such as title in another, (g) Rundle v. Little, 6 Q. B. 174. (h) Moon v. Raphael, 2 Bingh. N. C. 315. (i) Williams v. Archer, 5 C. B. 318. (k) 1 W. Saund. 28, a, n. 3. [1 Wms. Notes to Saund. 23, n. (1).] (1) Rumbelow v. Whalley, 16 Q. B. 397. Evidence of col not admissible. because if true at all it must be perfectly known to him. Nor, finally, does it come within the rule which requires payment after action to be pleaded, because it would have been no defence if it had been pleaded (m)., In the same case a question was raised, whether an attorney, sued in trespass for seizing goods, might give in evidence a judgment under which he had acted in issuing a fi. fa. No decision seems to have been given upon this point. On principle it would seem to be admissible in mitigation of damages, as showing the character of the act, and the absence of all malicious motive. Matter of a merely collateral nature cannot be given in lateral matter is reduction of damages. For instance, where the action was for injury caused by a collision at sea, the defendant was not allowed to deduct from the amount of loss proved, any money paid to the plaintiff by his insurers in respect of the same damage. This would be to make the wrong-doer pay nothing, and take all the benefit of the insurance without the burthen of the premium (n). On the same principle, in trespass for taking away goods sold by defendant to plaintiff, and not paid for according to contract, the plaintiff is entitled to their full value. The jury cannot take into consideration the debt due in respect of them from the plaintiff to the defendant, because the retaking by the latter would be no answer to an action by him for their price (o). Actions against sheriff. This is the most proper place for noticing actions against the sheriff by the debtor, or supposed debtor, for an unlawful execution. In such cases the sheriff appears as a wrong-doer, and damages against him are regulated on much the same. principles as against other persons. The rule was discussed. lately in the Court of Queen's Bench under the following circumstances. The action was trespass against the sheriff and his bailiff for breaking the plaintiff's house, and seizing his goods; it appeared that a former execution for the same debt 2707. had been put in, and the debt had been paid to a person at the bailiff's office. He never paid it over, and the execu (m) See, too, per Lord Abinger, C. B., 11 M. & W. 744. (n) Yates v. Whyte, 4 Bingh. N. C. 272. (0) Gillard v. Brittan 8 M. & W. 575; [Page v. Cowasjee, L. R. 1 P. C. App. 127. See ante, p. 300.] tion creditor never received it. Upon this account execution was put in by the same sheriff, which was the ground of action. The goods were not sold; but a man remained in possession several days. The jury gave a verdict for 4007. It was held that these damages were not excessive against the sheriff; per Cur. "If the second execution had been put in merely by mistake, or with a view bonâ fide to try any question which might fairly have been tried between the sheriff and the plaintiff, we should have thought the damages excessive as against the sheriff, as they greatly exceeded the pecuniary loss sustained. Sheriffs acting bonâ fide are entitled to and will always have the protection of the Court. The jury appear to have thought that this was a case in which the process of the Court had been abused, and a gross outrage was committed under the forms of law. We cannot say that they were wrong in coming to this conclusion, and if they were right, we should not be justified in interfering in behalf of the sheriff with the amount of compensation which they have awarded in the exercise of their constitutional functions" (p). goods have been ing open outer seized by break door. A question has arisen several times as to the amount of Damages when damages, where the sheriff has taken goods under a regular fi. fa., but has been guilty of such an irregularity in executing it as makes him a trespasser ab initio. It is laid down in Semayne's case (q), that the sheriff cannot break the defendant's house by force of a fi. fa., but he is a trespasser by the breaking, and yet the execution which he then doth in the house is good. If this be so, damages against him ought only to be for the breaking, and not for the seizure. On the other hand, there seems to be an almost insuperable difficulty in the way of framing any plea which shall not leave the taking without justification, and, unless it can be justified, nothing short of entire damages can, it seems, be given. It is settled that the door being open is a condition precedent to (p) Gregory v. Cotterell, 1 E. & B. 360; 22 L. J. Q. B. 217. [It was decided in this case in the Ex. Ch. that the sheriff is responsible not only for the wrongful acts of his officers, but for those of persons employed by them, if done by colour of the warrant; 5 E. & B. 571; 25 L. J. Q. B. 33. The high bailiff of a county court is in a similar position; Burton v. Le Gros, 34 L. J. Q. B. 91.] (q) 5 Rep. 93, a; 1 Sm. L. C. 92, 6th ed. executing the writ in the dwelling-house, and that the averment is material. Therefore when in trespass for breaking the plaintiff's house, and arresting him therein, the defendant pleaded, except as to the breaking, an arrest under a ca. sa., the door being open, and this averment was traversed with success; it was held that damages might be given not only for the breaking and entering, but also for the arrest (r). This, however, was a case of personal arrest, and in a later instance Parke, B., asked, "whether there was any authority for saying that the same doctrine applied to an execution. against goods?" (s). There is an exactly similar case; the action was for breaking and entering plaintiff's house, seizing his goods, and compelling him to pay a sum of money to withdraw from possession. The defendant justified under a writ of fi. fa., the outer door being at the time open. The jury found that it was shut, and gave 7207., observing that that sum was meant to include 2207. paid by the plaintiff, under protest, to induce the defendant to withdraw the execution. A motion was made to reduce the damages, on the ground that the execution was valid, though the entry was a trespass, and therefore the amount of the levy ought not to have been given. The Court, in giving judgment, after observing that the only plea of justification under the writ of fi. fa. was one which alleged that the defendant entered for the purpose of making a levy, the outer door being open, and that this allegation was found against them, as well as the plea of not guilty, proceeded to say, "The defendants therefore could not avail themselves of the writ of fi. fa. under the plea of the general issue, and were, upon the state of the record, without defence in regard to the amount exacted to induce them to withdraw; the jury were warranted in including the amount so exacted in damages. The state of the record before-mentioned renders it unnecessary to consider how far, and to what extent, a levy under a writ of fi. fa. can be justified, where properly pleaded, when the possession of the goods has been illegally obtained" (t). When the question next arises we may expect some phenomenon of special pleading to meet the possibility (1) Kerbey v. Denby, 1 M. & W. 336. (8) Percival v. Stamp, 9 Exch. 167, 170; 23 L. J. Ex. 25. so cautiously hinted at. Probably the real importance of the doctrine above stated will be felt when the action is not against the sheriff or his bailiffs, but against the execution creditor, for the proceeds of the sale. Should he be successful in separating himself from any connection with the unlawful entry, he may be held entitled to retain the goods, on the ground that the execution was valid, and that he cannot be put in a worse position on account of improper conduct which he did not sanction, and which was not the act of his agent, but of a public officer obeying the mandate of a Court of Justice (u). house. I may observe that the outer door of an out-house may be Breaking outer broken open for the purpose of executing a fi. fa. (e), but not door of an outin making a distress (y). The cases were reconciled by Lord Campbell, C. J., on the ground that a distinction may reasonably be made between the powers of an officer acting in execution of legal process, and the powers of a private indidual, who takes the law into his own hands, and for his own purposes (2). tion. Where a fi. fa. has been executed in a place where the Seizing goods Court had no authority, as for instance, out of the jurisdiction out of jurisdicof the Court, the measure of damages is the whole value of the goods seized, and not the amount of injury actually sustained. To admit the latter mode of estimating damages would be, in effect, allowing the illegal proceedings to stand good (a). When, after a wrongful seizure by the sheriff, the goods Payment of are taken from him by another wrong-doer, from whom the money to recover. right owner can only obtain them by payment, he may, in an action against the sheriff, recover as special damage the money necessarily so paid (b). And on the same principle the sheriff (u) See 7 H. IV. 35, Com. Dig. Trespass, C. 1, 4 Inst. 317; Robinson v. Vaughton, 8 C. & P. 255; Wilson v. Tumman, 6 M. & G. 236; Lyons v. Martin, 8 A. & E. 512; Freeman v. Rosher, 13 Q. B. 780; [Smith v. Holbrooke, 9 Ir. L. R. 155.] (x) Penton v. Browne, 1 Sid, 186. (y) 9 Vin. Abr. 128, Distress (E. 2), pl. 6; Brown v. Glenn, 16 Q. B. 254. (z) 16 Q. B. 257. [Both in the case of distress and execution, a bailiff may break open the door to retake possession if there has been no abandonment; Bannister v. Hyde, 3 E. & E. 627; 29 L. J. Q B. 141.] (a) Sowell v. Champion, 6 A. & E. 407. (b) Keene v. Dilke, 4 Exch. 388. |