appear and claim the property of the goods, &c., mentioned in the inquisition on or before that day se'nnight, a writ of venditioni exponas shall issue to sell the same." If no one appear within the time specified in the rule, the writ issues without any motion in Court. The debtor is entitled to notice of the intended sale.b a West, on Extents, 174. b See The King v. Mares, 2 Price 155. CHAPTER VI. ACTIONS AGAINST HIGH SHERIFF. SECTION I. Respondeat As applied to the High Sheriff and his officers, the maxim resuperior. spondeat superior prevails to the fullest extent; it approaches well nigh to an universal truth. For all civil purposes, the law regards them as one. He is answerable civiliter but not criminaliter, for the acts of his bailiff, is the language of the books. This is explained to mean, that he may be fined, and amerced, or be mulcted in damages, but not imprisoned or indicted. The relation between them has been sometimes compared to that of master and servant; sometimes to that of principal and agent. To a certain point, the comparison may be just-to that where it is lost sight of in the stern requirements of public policy; but beyond this there seems neither similitude nor analogy. Whether the nature of the duties he has to discharge towards the world, or his relation to the Court, or the security he takes, or is supposed to take, from his officers, casts upon him a different or more enlarged responsibility, is difficult to determine-perhaps, in a Extent of practical view, needless to determine; for if anything in law can be said to be settled and agreed upon, it is, that the maxim of respondeat superior ranges over the whole field of civil remedies, and ceases only to apply to the Sheriff for the acts of his officers, where the criminal boundary begins. Thus, he is liable, not only for acts of negligence, but for wilful and fraudulent acts, and for such as might warrant even a criminal prosecution, as for extortion, and the like. On a penal statute, he has been held liable at the suit of the party grieved, and also at the suit of a common informer.c But to charge him for the act of his officer, two things must occur:-1st. The Sheriff must be acting in a ministerial, and not in a judicial capacity;d 2ndly. The officer, for rule. a Laycock's ca. Latch. 187; S. C. Noy, 90; Ackworth v. Kempe, Dougl. 40; Woodgate v. Knatchbull, 2 T. R. 148; Saunderson v. Baker, 3 Wils. 309; Sturmy v. Smith, 11 East, 27; Parrot v. Mumford, 2 Esp. 585: and see Brown v. Copley, 8 Sc. N. R. 358; Woods v. Finnis, 7 Exch. 372. b Ibid.; and see Raphael v. Goodman, 8 Ad. & E. 567; Smart v. Hutton, ib. 568, n. Pechell v. Layton, 2 T. R. 512, 712; Stanway v. Perry, 2 B. & P. 157; Sturmy v. Smith, 11 East, 24. d Holroyd v. Breare, 2 B. & A. 473; Tinsley v. Nassau, M. & M. 52; Tunno whose conduct he is sought to be charged, must be acting in execution of an authority received from the Sheriff.a Thus, where the bailiff was originally authorised by the Sheriff's warrant to execute process, and, upon it, he entered and seized; afterwards, a supersedeas came, and was duly served on the bailiff, and a demand of the goods made upon him; it was held that, for the conversion of the bailiff, after the supersedeas, the Sheriff was not liable, being an act done not under the Sheriff's authority, but in defiance of it.b So when the bailiff, in executing a ca. sa., receives the amount of debt and costs (as he is not authorised to do it), the Sheriff is not liable for the consequences. If a fi. fa. be issued against the goods of C. D., and the bailiff, by mistake, seize the goods of E. F., the Sheriff is liable, for the bailiff is acting in execution of, or, as the books happily express it, under colour of an authority from the Sheriff. For the same reason, if an arrest be made by the bailiff after the return day of the writ; or an arrest be made under a fi. fa., and the like.f It is a familiar rule, that a servant or deputy is not personally chargeable for neglect of duty, only for acts of misfeazance. By the same rule, neither can an Under-sheriff nor a bailiff be personally charged for any nonfea zance, or neglect of duty; for such things the superior alone must answer. But the servant in the one case, and the officer in the other, may be personally sued for any act of misfeazance. For instance, if a bailiff, who has a warrant from the Sheriff to execute a writ, suffer his prisoner by neglect to escape, the Sheriff shall be charged for it, and not the bailiff. But if the bailiff turn the prisoner loose, the action may be brought against the bailiff himself. The maxim-omnis ratihabitio retrotrahitur et mandato æquiparatur-applies to the Sheriff as well as to any other person. But he cannot be made a trespasser by relation; for although a fiction of law may give a right, it cannot create a wrong.h As the Sheriff is so far above the drudgery of his office as Relation seldom, if ever, of himself, to take an active part in it; add to between this, the necessity by law to appoint an Under-sheriff and deputies and his High Shefor certain purposes, it is of great importance to ascertain the officers. relation between him and his officers, and that between them and the world at large. This has been already done in part, but it may be well to repeat here, that the Under-sheriff is the general v. Morris, 2 C. M. & R. 298; Pitcher v. King, 9 Ad. & E. 290: and see Brown v. Copley, 8 Sc. N. R. 354. a 2 Roll. Abr. 552, pl. 10; Cook v. Palmer, 6 B. & C. 739; Crowder v. Long, 8 B. & C. 598; Brown v. Copley, 8 Sc. N. C. 363; Smart v. Hutton, 8 Ad. & E. 568, n: and see Smith v. Pritchard, 8 C. B. 588. b Brown v. Copley, 8 Sc. N. C. 362. Woods v. Finnis, 7 Exch. 372. d Ackworth v. Kempe, Dougl. 40. i Ante, pp. 23, 27, 31. See also Doe How proved. deputy of the High Sheriff for all purposes, within the scope of his office; and that a bound bailiff is only the High Sheriff's servant or agent to do his bidding in a particular transaction: that is to say, he is the special officer of the High Sheriff for the individual occasion, wherein he is employed, and for that individual occasion only. This distinction, kept steadily in view, will explain many things apparently difficult, more especially the effect of admissions accompanying some official act, and brought forward to show the privity between them. It is usual, indeed universal, for a warrant in writing to be granted to the bailiff; but, with the exception of a precept in nature of a withernam, there does not appear to be any obligation upon the Sheriff to grant a warrant or precept in writing. A parol command seeins, in all cases, except as aforesaid, sufficient in law to create authority. Now, seeing that an agent's authority, to do a particular act, is in writing; seeing, also, that the rules of evidence require the best, or rather the highest degree of evidence the matter admits of, to be produced, such written authority or warrant should be produced, on an issue involving the question of authority or no authority. The warrant, after execution, is either retained by the officer, or returned to the office whence it issued. When retained, a sub. duc. tec. must be served upon him. When returned, a notice to produce must be given, and secondary evidence of it will be admissible, in the event of its non-production. Where it had been returned by the bailiff to the Under-sheriff, the Sheriff still being in office, it was held that a notice to produce, served upon the attorney of the Sheriff, was sufficient. Where the bailiff had given the warrant to a third person, and it could not be found, after diligent inquiry, secondary evidence of its contents was admitted, without a notice given to the defendant to produce it. A warrant obtained from the officer of the London agent of the Sheriff is sufficient to connect the Sheriff with the acts of the officer executing it. Where they proved him to be a bound-bailiff, and produced and proved a paper, received from him purporting to be a copy of the warrant, it was held insufficient.d And it has been held insufficient to produce an examined copy of the warrant, with the bailiff's name indorsed on it, though the Sheriff had returned cepi corpus. So where an examined copy of the writ and return, with the bailiff's name written on the margin, was produced, the evidence was considered defective. But, in an action for not arresting, the privity was held sufficiently established by a person belonging to the Sheriff's office, who had indorsed the bailiff's name on the writ produced. In another case, evi dence of a like kind was given and held sufficient; in the latter case, however, it was in evidence, that it was the custom of the office to indorse upon the writ the name of the bailiff who was to execute it.a So where an examined copy of the writ, as returned by the Sheriff with the officer's name indorsed, was produced, and the writ was shown to have been executed by a person of that name, and that the custom of the Sheriff's office was to grant a warrant to the officer whose name was indorsed on the writ, or, if not, to strike the name out, and insert that of another officer, the evidence was held prima facie sufficient to fix the Sheriff. So, where it was proved that a bail-bond, which had been executed and delivered to the bailiff, had been returned to the Sheriff's, and that he had returned cepi corpus, the agency was held sufficiently established. So, where a paper was produced from the Sheriff's office containing an order to the bailiff to give the necessary instructions for making a return to the writ in question, and containing his answer, the privity between the Sheriff and the bailiff, as to the execution of the writ, was held sufficiently established. Where the bailiff proved he had seized under a warrant brought to him by one who said it came from the Sheriff's office, and that he knew the handwriting in it, but had since lost it, the evidence was held sufficient. So, where the plea admitted the officer, who arrested, to be the agent of the defendant for that purpose, it was held unnecessary to produce the warrant. When it is necessary to prove the writ, the warrant reciting the writ seems not to be evidence of it.g A of officers. The Under-sheriff's admissions, he being the general deputy of Admissions the High Sheriff, are evidence against the Sheriff, without previous proof of his authority in the particular transaction.h bound bailiff's, he being an officer in the particular transaction, and in that alone, are inadmissible, until the connection between him and his superior is established by the warrant or otherwise; and even then his adinissions will be evidence only in the same manner, and to the same extent, as those of any other agent.i Again, it is not every admission that will affect the Sheriff; thus, the admissions of the Under-sheriff must accompany some official act done, or they must tend to charge himself, otherwise they will not affect the sheriff. An Under-sheriff's letter, produced by the plaintiff to affect the Sheriff, was held to be evidence of the facts a Tealby v. Gascoigne, 2 Stark. 202. b Scott v. Marshall, 2 C. & J. 238. c Martin v. Bell, 1 Stark. 416. d Jones v. Wood, 3 Camp. 229. e Moon v. Raphael, 2 Sc. 489. Barsham v. Bullock, 10 Ad. & E. 26; Reid v. Poyntz, 8 Dowl. 410. B Glave v. Wentworth, 6 Q. B. 173, n; White v. Morris, 11 C. B. 1015; Haylock v. Sparke, 1 E. & B. 485; |