[A sheriff is aníwerable civiliter but not criminaliter his bailiff. To maintain The cafe upon the evidence of facts at the trial was, That the plaintiff Saunderfon is an auctioneer, and having goods in his warehoufe to be fold by auction, publifhed, a catalogue thereof for for the act of fale in May 1771; that one Bolland a fheriff's officer having a warrant from the fheriff upon an execution of fieri facias against one Beavor at the fuit of one Price, thereupon feifed the faid goods of the plaintiff Saunderfon, fuppofing the fame were Beavor's goods, which they were not, as was proved at the trial; that on the 31st of May, Bolland took away the goods which were proved to be of the value of 300l. and upwards, locked the door of the ware-houfe, and took away the key thereof. an action civiliter it is not neceflary to fhew an actual recog nition by the fheriff of the acts of the Ackworth v. S. P. as this cafe; and the notes there respecting this That on the 1ft of June the plaintiff went to the fheriff's office, where he found Mr. Frith clerk to the under-fheriff, and then and there, in writing, demanded all the goods (fo wrongfully fcifed by Bolland the officer) to be returned, and that if they were not returned he [the plaintiff Saunderfon] would fue the fheriffs, whereupon Mr. Frith then told him the fheriffs had report. See alfo Woodgate fufficient fecurity from Bolland, and that he (Frith) did not care. v. Knatchbull, Frith alfo faid, "This fellow Bolland has been often guilty, I "am glad he is caught,, but we have fecurity." The defendants gave no evidence at all at the trial; and in fumming up the plaintiff's evidence to the jury, the Lord Chief Juftice told them, that if they were of opinion that the fheriff had recognized the act of Bolland, they ought to give their verdict for the plaintiff which they accordingly did, and faid they were of opinion that the fheriff had recognized the act of Bolland; the Lord Chief Juftice was fatisfied with the verdict. 2 Term Rep. K. B. 148, 150, 156.] It was moved by Serjeants Burland and Walker, that the ver dict was unfupported by the evidence, and that the sheriff was not answerable in an action of trefpafs vi et armis, for acts done by his officers or bond-bailiffs, and they cited 2 Roll. Abr. 559. (0) pl. 9." If the fheriff makes a warrant to the bailiff of a "franchise to take the goods of a man in execution, and he mis"takes the goods, and takes the goods of another man, the bailiff "is the trefpaffer, and not the fheriff." And pl. 10. ibid. "If a *man be arrested by the bailiffs of the fheriff, and thereupon he "fheweth to them a fuperfedeas to difcharge him, and the bailiffs refufe it, and afterwards detain him in prifon, ye fhall have falfe imprifonment against the bailiffs, and not againft "the fheriff." They alfo cited Laicock's cafe, Latch 187, where it is faid the fheriffs fhall be fined or amerced, and fhall answer in damages to the party for the misdemeanor of the under-sheriff, but he fhall not be imprifoned or indicted; from whence they argued that trefpafs vi et armis in this cafe will not lie against the high-fheriff, because the judgment in that trefpafs is quod capiatur. Where Whereupon the court made a rule to fhew caufe why the verdict fhould not be fet afide, and a new trial granted. Serjeant Davy for the plaintiff against a new trial-I never knew this objection made before; the notion I have always entertained upon this fubject is this; a fheriff appoints his bailiffs or officers to do the acts which the fheriff himself is bound and obliged, by law, to do; he takes fecurity, both by bond and oath from the officers to indemnify himfelf, and if the King's fubjects are hurt or injured by the wrongful acts or trefpaffes of fuch officers, they must refort to the fheriff himself to be repaired in damages for fuch wrongs and trefpaffes. Thefe bond-bailiffs [or bum-bailiffs] are the moft abandoned and wicked fet of men, therefore the fheriffs always take large and ample fecurity for their good behaviour, but if the fheriff himself is not anfwerable in damages for trefpaffes committed by them under colour of their office, fuch fecurity feems vain and nugatory. If it was once univerfally understood that the high fheriffs are not anfwerable, by law, for trefpaffes committed by their officers in the execution of the fheriff's warrants, this would very much tend to the breach of the peace, and endangering men's lives for if an officer fhould have a warrant to take B.'s goods in execution, and he, wilfully, or by mistake, feifed the goods of A. in that cafe, if A. knew that the fheriff was not anfwerable for the trefpafs, A. would moft probably refift the officer with force, the peace would be broken, and lives might be in danger. Laicock's cafe in Latch. 187. is not applicable to this; that was a fpecial action upon the cafe, against the under-fheriff for returning upon a latitat, non eft inventus; which latitat was delivered by the plaintiffs to the under-fheriff, when the defendant therein named, was in the prefence, view and company of the under-fheriff; fo that it is there faid an action against the high Sheriff laid for an escape, and that he fhall anfwer for his underfheriff civilly, not criminally. The cafes in 2 Rol. Abr. 552. pl. 9 & 10. are no more to the purpose than Laicock's cafe; the first of those, pl. 9. is the cafe of the bailiff of a franchife who is not appointed by the sheriff, therefore if that officer miftakes and feifes one man's goods inftead of another's, the fheriff is not liable; the other cafe, pl. 10. is, if a fuperfedeas be fhewn to the fheriff's bailiff to discharge a man whom he has arrefted, and the bailiff afterwards detains him in prison, falfe imprisonment lies against the bailiff, and not against the fheriff; but this cafe does not reach the prefent cafe at bar, for here the under-fheriff has recognized the trefpafs done by Bolland, and has told the plaintiff that the sheriff had fecurity, and the plaintiff might do what he pleased. Serjeant Glynn on the fame fide for the plaintiff―This is trefpafs for taking goods acknowledged to be the property of the plaintiff, and not of Beavor the defendant named in Bolland's warrant; it was a queftion put to the jury by my Lord Chief Juftice, whether they believed this act of Bolland was not an aft recognized by the fheriff; Mr. Frith the clerk acted as underfheriff, and fpeaking for the theriff adopts the fact, he fays it is indifferent to the fheriff, becaufe (fays he) "We have indem. "nity." With this question put by my Lord Chief Juftice to the Jury the matter was left to them, and they being of opinion that the fheriff had recognized the act of Bolland, have given their verdict accordingly, which is decifive. The high fheriff must be anfwerable in damages for the trefpaffes committed by his officers in the execution of warrants; for if this matter was to ftand upon any other ground, it would be pregnant with great mifchief indeed! That great publick officer the high fheriff must be a perfon refponfible to the King's subjects in fortune, &c. and the law doth not prefume the bumbailiffs to be perfons answerable, who are (in general) the moft abandoned wicked fet of men living; and if the sheriff was not to be answerable for their trespasses in the execution of warrants, a door would be opened to plunder and rapine by these bailiffs, who would, whenever they thought fit (as in the prefent cafe) feife and take away the goods of one man inftead of another's. Indeed if I (as a private perfon) was to command my fervant to do a lawful act, [fuppofe] to diftrain the goods of A. and he wrongfully takes a diftrefs of the goods of B. I should not be answerable for my fervant's mifdoing; but in the cafe of a publick officer, the high fheriff, who delegates perfons to act for him in his own office, must be anfwerable perfonally in damages for trefpaffes done by those perfons in the execution of his office, for fuck perfons act by the fheriff's power and publick authority. There are many cafes where a mafter is anfwerable for the wrong done by his fervant; the fervants of a carman ran over a boy in the streets and maimed him by negligence, an action was brought against the mafler, and the plaintiff recovered. The fervants of A. with his cart run against the cart of B. in which there was a pipe of Sack, and overturned it, whereby the Sack was fpoiled, and ran into the ftreet, an action was brought against the mafter, and held good by Holt Chief Juftice. 1 Ld. Raym 739, 264, 265. An action lies against the mafter of a ship, boat or barge, for the unfkilfully or negligently fteering thereof by the fervant, fervant, whereby any damage is done to the perfon or property of another; many other fimilar cafes there are, where the mafter muft, by law, be anfwerable civilly for the acts of his fervant, otherwise great mifchief to the publick would enfue: the fafety of the publick is much concerned in the prefent queftion. Serjeant Burland for the defendants-No cafe hath been cited to fhew that trefpafs vi et armis will lie against the fheriff in the prefent cafe; and the fubfequent recognition by Mr. Frith, the under-fheriff's clerk, will not make the defendant's anfwerable in trefpafs vi et armis. I fubmit it (with deference) to the court, that no man is anfwerable in trefpafs vi et armis for an act done by his fervant or deputy, who acts contrary to the command and order of his mafter or principal. Here is a warrant or authority to Bolland to take the goods of A. but he wrongfully takes the goods of B.; the fheriff is no more answerable than if Bolland had not taken any man's goods at all; it might as well be faid, that whatever trespass this Bolland commits, the sheriff fhall be answerable to his master. 66 66 I can fee no difference between the cafe of a fheriff and his bailiff, and a master and his fervant; the master of a hackney-coachman or a carter is not anfwerable in trefpafs vi et armis, for injuries done by the fervant. "If my fervant without my notice puts my beafts into the land of another, my fervant is the trefpaffer, and not I, because by the voluntary putting in the cattle there without my affent, he gains a fpecial property for the time, and fo, to this purpose, they are his cattle. 2 Roll. Abr. 553. (Q) pl. 1. -Suppofe a bailiff breaks open the door of a man's houfe to arreft him, or to take his goods in execution, the sheriff in fuch a cafe would not be a trefpaffer, but the officer himself only.-And if a bailiff arrefts a ftrange perfon not named in the writ, falfe imprisonment lies against the bailiff only, not against the fheriff." In Hil. 44 Eliz. B. R. the "cafe was, that on the 2d day of July a capias ad fatisfaciendum was delivered in Holborn to the fheriff of Cambridge, who made 66 a warrant to his bailiffs the fame day, and afterwards, alfo on "the fame day, there came to the fheriff a fuperfedeas, upon a "writ of error, of which the bailiffs, having no notice took the de"fendant's body who efcaped, and afterwards the bailiffs, having "notice of the fuperfedeas retook him; and thereupon trespass and imprisonment was brought, and adjudged maintainable. "Moore 677. pl. 921. Prine verfus Allington." Where the fheriff is anfwerable, the bailiff is not liable in the fame fort of action; if the bailiff permits an efcape, or the under theriff makes a falfe return of a writ, the high fheriff is only liable. liable to an action for the efcape, or for the falle return, for it is the efcape and falfe return of the high-fheriff.-Laicock's cafe in Latch. 187. when confidered, is a cafe in point for the defendant, and fhews that trefpafs vi et armis does not lie against the high fheriff, for the judgment in trespass vi et armis is quod capiatur, but that cafe fays, the high-sheriff shall not be imprifoned for the act of his officer. For a tort or wrong in the execution of procefs, the under fheriff or officer who does the wrong is only anfwerable.-If the demandant in a writ of entry fur diffeifin, delivers a writ of fummons thereupon to the under-fheriff of the county, and afterwards he doth fummon the tenant upon the land accordingly, and notwithstanding, doth not return the writ, an action upon the cafe may be brought against the under-fheriff, if the plaintiff pleases, for perhaps the fheriff had no notice thereof; and it may be, that the under-fheriff hath taken the fees to execute the writ. 1 Roll. Abr. 94. (R) pl. 4. adjudged inter Marsh and Aftrey. Cro. Eliz. 175. S. C. 1 Leon. 146. S. C.— So if a warrant upon a fieri facias to levy a debt at the fuit of 7. S. be directed to an under-bailiff of a liberty, and he by force thereof levies the debt and afterwards conceals the writ, and doth not make any certificate thereof, an action upon the cafe lies against the under-bailiff, because that he hath done a perfonal tort. 1 Roll. Abr. 94. pl. 5. The cafe of Cooper et al', affignees of Johns a bankrupt, versus Chitty and Blackflon Sheriffs of London, 1 Burro. 20. was trover for goods of the bankrupt lawfully taken in execution, and fold by the Sheriffs after they had notice of the bankruptcy, and that the goods were the property of the affignees, which was adjudged a converfion by the fheriffs.-The times and facts in that cafe are, that on the 5th of December 1753, one Godfrey obtained judgment in C. B. against the said Johns; and on the fame day (5th December 1753) execution upon that judgment was taken out against his goods by Godfrey, and the goods feized by the fheriffs under it; that Johns committed the act of bankruptcy 4th December 1753, and on the 8th of the fame December a commiflion of bankruptcy was taken out against him; and on the very fame day the commiffioners executed an affignment; and afterwards, on the 28th of December, a bill of Jale of the goods was made by the fheriffs.- --The question was, Whether the affignees could maintain trover against the fheriffs (who executed this procefs under a regular judgment and execution) for feizing the goods under a fieri facias iffued out and executed after the act of bankruptcy was committed, and felling them after the affignment was executed. And per totam curiam, the |