the judgment, the plaintiff having no property in the goods (i).

PART

IV.

The judgment-debtor is not a competent witness to prove that he did not assign the goods to the plaintiff, which have Competency. been taken in execution by the sheriff; for the effect of his testimony would be to pay his own debt at the plaintiff's expense (k).

In an action against a sheriff for extortion committed Extortion. by his bailiff (1), the plaintiff must prove the * issuing of the * 1356 writ (m), the warrant (n), and the extortion committed by the bailiff; but where it appears from the return to the writ itself, that more has been taken for executing the writ than the sheriff was entitled to, proof of the warrant is unnecessary (o).

In an action under the stat. 32 Geo. II. c. 28, to recover the penalty of 50l. for taking more than is by law allowed for waiting till bail is given, it has been held, that it is essential to prove a regular table of fees settled in pursuance of the act (p); but if the plaintiff fail upon the counts for

(i) See Martyn v. Podger, 5 Burr. 2631. Trespass for seizing the goods of John Martin under an execution against William Martin, the defendant proved the fieri facias against the goods of William, and also that he seized the goods as William's, but did not prove the judgment; the Court, on a motion for a new trial, after a verdict for the plaintiff, held that the judgment ought to have been proved; but held also, that it ought to have been left to the Jury, whether the plaintiff was not in possession under a fraudulent bill of sale from William.

(k) Bland v. Ansley, 2 N. R. 331. Note, that the judgmentdebtor had sold a house to the plaintiff, and whether the goods in that house were sold, or not, at the same time, was matter of dispute. If the judgment-debtor would have been liable to the plaintiff, in case of his failure, to the amount of the goods, he would, it seems, have stood indifferent.

(1) See the provisions of the stat. 29 Eliz. c. 4, and 32 Geo. II. c. 28. An action under the former of these statutes for taking more for a levy than the statute allows, may be maintained by the party against whose goods the writ was issued, although there were not goods to the amount of the debt and costs, and the sum overcharged is deducted out of the sum to be paid over to the creditor.

The statute of Eliz. does not apply to crown debts. Stevens v. Rothero, 3 B. & B. 143. Peacock v. Harris, 1 Salk. 332.

(m) Supra, 1335. And if the judgment be alleged in the declaration, it should also be proved. Savage v. Smith, 2 Bl. Rep. 1101. (n) Supra, 1337.

(0) Woodgate v. Knatchbull, 2 T. R. 148.

(p) Jacques v. Whitcomb, 1 Esp. C. 361. Martin v. Slade, 2 N. R, 59. Hannam v. Ormerod, 1 Esp. C. 362, n.

&c.

PART IV.

the penalties, he may still recover the excessive payment in an action for money had and received (9).

In an action against a sheriff, or other returning officer, Refusing vote, for refusing a legal vote, it seems to be settled that it is not sufficient merely to prove that the defendant obstructed the legal right of the plaintiff to vote, provided he acted bona fide, and to the best of his judgment; but that it is essential to show that he acted maliciously, and from some improper motive (r) (1).

* 1357 Sale by a sheriff.

*Where a sheriff sells a term under a writ of fieri facias, which is afterwards set aside for irregularity, the produce of the sale being directed to be returned to the termor, the latter cannot afterwards maintain ejectment against the vendee ($).

Where a lessor in ejectment claims as purchaser from the sheriff, who sells under a fieri facias at the suit of the lessor, he should prove the judgment as well as the writ (t).

(9) Lovell v. Simpson, 3 Esp. C. 153. In Martin v. Slade, (2 N. R. 59), the plaintiff having been nonsuited for not proving the special counts, the Court refused to grant a new trial in order to let the plaintiff in to recover the excess on the money counts; but it is not intimated that the plaintiff might not have recovered for money had and received at the trial, had he made the point.

(r) See Cullen v. Morris, 2 Starkie's C. 577. Sergeant v. Mil ward, Luders, 248. The Bridgwater case, 1 Peck. 108, Orme's Dig. 242. The Seaford case, Simeon, 129; Orme's Dig. 251. Drew v. Colton, 2 Lud. 245. 1 East, 563. n. Contrary to the opinion of Holt, C. J. in Ashby v. White, 2 Ld. Raym. 938; 6 Mod. 46; 1 Salk. 19; Holt, 524; 1 Brown, 45. And see Grew v. Milward, 2 Lud. 245.

(s) Doe v. Thorn, 1 M. & S. 425. That a sale of a chattel is valid, although the execution be afterwards set aside for irregularity,. see Dyer, 363, pl. 24; 5 Co. 90; 13 Co. 20. But see Turnor v. Folgate, T. Ray. 73. And the sheriff cannot be treated as a trespasser (per Bayley, J. in Doe v. Thorn, 1 M. & S. 427). But qu. when the term is extended on an elegit, or forfeited on outlawry, and sold, and the judgment of outlawry is reversed. Cro. Jac. 246; 1 And. 277; Cro. Eliz. 278. [See Yelv. 180, note (2).]

The sheriff may justify as well under an irregular as under an erroneous judgment, so as the writ be not void, and a purchaser will gain a title under him; for they are not privy to the irregularity. Tidd, 924, 3d edit. 1 Ves. 195. A party may justify under an erroneous judgment, for it is the act of the Court, but not under an irregular one which has been set aside. 1 Str. 509. Tidd, 924, 3d edit. [See Yelv. 179. d. note (1)—180, note (2).]

(t) Doe d. Bland v. Smith, 2 Starkie's C. 199. Burton v. Cole, Carth. 443, supra, 520. So in trover by an assignee, under a sale

(1) [Wheeler v. Patterson, 1 N. Hamp. Rep. 88. Jenkins & al. v. Waldron, 11 Johns. 114. Acc. Lincoln v. Hapgood & al. 11 Mass. Rep. 350. Contra. See Custis v. Lane, 3 Munf. 579.]

Evidence of an assignment of a lease taken in execution by one who acts as under-sheriff, is evidence of an assignment, without proof of the appointment of the undersheriff (u).

PART

IV.

Assignment.

A return by the sheriff being the official act of a public Return. officer, is evidence against third persons. If he return a rescue, the Court will so far give credence to it as to issue an attachment in the first instance (x). So it is evidence against the defendant upon an indictment for a rescue, although not conclusive (y).

The sheriff's return that he has levied, is, it seems, evidence of the fact as against third persons (z); but *the* 1358 return that he has levied under a writ of fi. fa. does not afford even prima facie evidence that he has paid the money over to the judgment-creditor (a).

The debtor is a competent witness for the plaintiff in an Competency, action for an escape on mesne process, for he could neither plead the recovery in bar of an action for the debt, nor give it in evidence in reduction of damages (b). And an owner of goods, who has forcibly taken them out of the sheriff's possession, is a competent witness for the sheriff in an action for a false return of nulla bona to a writ of fieri facias, to prove that the goods were not the property of the debtor; for the sheriff, after returning nulla bona, could not maintain an action against him for the rescue, in case the plaintiff were to succeed (c).

by the Sheriff against the assignees of a bankrupt, upon an execution, issued before the bankruptcy, the plaintiff must prove the judgment as well as the writ, unless it appear that the defendants are sued as assignees. Glazier v. Eve, 1 Bing, 209. Supra, Part p. 245. Part iv. 520. 1357.

ii.

(u) Doe d. James v. Brawn, 5 B. & A. 243.

(x) R. v. Elkins, 4 Burr. 2129. 297.

Gyford v. Woodgate, 11 East,

(y) Per Ld. Ellenborough, in Gyfford v. Woodgate, 11 East, 297. (z) Gyfford v. Woodgate, 11 East, 297; where, in an action against a judgment-creditor for having sued out an alias fi. fa. after a sufficient execution levied under the first, it was held, that the sheriff's returns on the two writs (which were produced by the plaintiff), in which he stated that he had forborne to sell under the first, and had sold under the second writ by the request of the plaintiff, were evidence of the fact for the defendant.

(a) Cator v. Stokes, 1 M. & S. 599.

(b) Per Abbott, C. J. in Hunter v. King, 4 B. & A. 209; B. N. P. 67. R. v. Warden of the Fleet, 12 Mod. 337.

(c) Thomas v. Pearse, 5 Price, 547. See Pitcher v. Bailey 8 East, 171, where it was held, that an officer guilty of breach of duty in permitting a prisoner to go at large on his promise to pay,

PART
IV.

On a charge against the warden of the Fleet for permitting the escape of prisoners, a prisoner who has escaped, but who has been retaken, is a competent * witness * 1359 against the warden, although he has given a bond conditioned for his being a true prisoner; for the record of conviction would be no evidence against the warden either in an action by him upon the bond, or in an action of false imprisonment by the witness (d).

STAMP.

1. Where necessary with reference to the subject-matter Administration, Agreement, Appraisement, &c.

1359.

2. Re-stamping, when necessary, 1374.

3. Several stamps, when necessary, 1375.

4. Stamp of a different denomination, when sufficient, 1377.

5. Objection, when to be taken, 1378.

6. Presumptive evidence that an instrument has been properly stamped, 1379.

7. The consequence of the want of a proper stamp, 1379. 8. For what collateral purposes an unstamped writing may be used, 1381.

Where a party is bound to prove his title as administrator, at the trial, by evidence of letters of administration, and it appears that he sues for a greater value than is covered by the ad valorem stamp of his letters of administration, they cannot be received in evidence (e).

But it is otherwise where the character in which the plaintiff sues is admitted by the plea: as, where an administrator sues upon promises to the intestate, and makes

could not, after being obliged to pay the money to the creditor, recover it from the debtor. And see Eyles v. Faikney, cited Peake's C. 144. A verdict against the sheriff in an action for a false return of nulla bona, does not, as in trover, vest any property in the goods in him, but they remain liable to a subsequent execution (Underwood v. Mordant, 2 Vern. 238). And where a debtor in execution escapes, though with the consent of the gaoler or sheriff, a recovery against the sheriff of less than the whole debt will not preclude the creditor from retaking the debtor, even although twelve months have expired, without a scire facias. B. N. P. 69, cites Lenthal v. Gardiner, Hil. 26 & 29 Car. II. per Hales. Collop v. Brandley, Trin. 31 Car. II. Th. Br. 282.

(d) R. v. The Warden of the Fleet, 12 Mod. 337. R. v. Ford, 2 Salk. 690.

(e) Hunt v. Stevens, 3 Taunt. 113.

profert of the letters of administration, and the defendant pleads merely non assumpsit (ƒ).

* Where A. sued out a commission of bankruptcy on

PART

IV.

a debt due to him as executor, but the probate was insuf- * 1360 ficiently stamped, a sufficient stamp being afterwards Administration affixed, it was held to be sufficient to support the commis

sion (g).

By the statute 55 Geo. III. c. 184, an agreement, or Agreement. any minute or memorandum of an agreement (h), made

(5) Thynne v. Protheroe, 2 M. & S. 553. Supra, 548. (g) Rogers v. James, 7 Taunt. 147; 2 Marsh. 425.

(h) A mere collateral writing not signed by the parties is not within the statute. A written paper delivered by the auctioneer to. one to whom lands were let by auction, containing the description of the lands, the term for which they were let, and the rent, but not signed by the auctioneer nor any of the parties, was held to be admissible in evidence without a stamp (Ramsbottom v. Tunbridge, 2 M. & S. 434); for it was held to be no more than a mere declaration by the auctioneer, and not like an original minute. But in a similar case, where the note was signed by the auctioneer, it was held that a stamp was necessary (Ramsbottom v. Mortley, 2 M. & S. 445), although the name of the lessor was omitted; for it was evidence of part of a contract, although not of a complete contract, to satisfy the Statute of Frauds. Ibid. And see Dalison v. Stark, 4 Esp. C. 163; supra, 82.

A paper which operates but incidentally as evidence of an agreement, is admissible without a stamp. Notice of a dissolution of partnership is evidence to prove that a partnership once subsisted. Wheldon v. Matthews, 2 Chitty's R. 390.

Where a broker sought to recover for doing business by commission, it was held that a prospectus of the terms on which he did business was functus officio previous to the entering into a parol contract, and might be read, though unstamped. Edgar v. Blick, 1 Starkie's C. 464.

In an action for work and labour, a mere proposal and estimate made by the plaintiff, but not finally acceded to, is evidence for the defendant, without a stamp, in reduction of the demand (Penniford v. Hamilton, 2 Starkie's C. 475). In an action for not delivering goods manufactured by the defendant in consequence of an order from the plaintiff, a memorandum signed by the plaintiff only, describing the nature and quantity of the goods, but not specifying the price, may be given in evidence without a stamp, and it was held that the acceptance of the order, and the precise terms of the contract, might be proved by other evidence. Ingram v. Lea, 2 Camp. 521.

Where B. was directed by letter from C. to pay a sum of money to D. out of the proceeds of goods in the hands of B., and B. by letter to D. agreed to pay the money, it was held that this was not an agreement between B. and C., and therefore that an agreement stamp was improper; but that the order from B. to C. ought to have been stamped as an order for payment of money out of a fund which might or might not be available under the stat. 55. Geo. III. c. 184. Firbank v. Bell, 1 B. & A. 36.

A cog