action was held maintainable, and they gave judgment for the plaintiffs. I agree with my brother Glynn that the fheriff's delegation of bailiffs and officers to act for him in his office, is like other delegations, and that if a fervant of a carter, by driving unfkilfully, negligently, or wilfully, overturns or injures the coach or carriage of another perfon, the mafter of the cart is anfwerable in an action of trefpafs upon the cafe, but not in trefpafs vi et armis.I admit, if the fheriff had made a return, he would have been answerable in trefpafs vi et armis, because all persons any way concerned in fuch trefpafs are principals. Lord Chief Justice De Grey-Do you [brother Burland] contend that no recognition of this fact of Bolland but a return of the writ will fix the fheriff as a trefpaffer vi et armis? Serjeant Burland-Frith the under-fheriff's clerk faid, "This' fellow Bolland has been often guilty of faults, I am glad he "is caught, but we have fecurity;" (that is to fay,) If Bolland has done any act to affect the fheriff, the fheriff has fecurity, this muft be Frith's meaning; if the fheriff himself had faid the fame, it would not have made him liable in an action of trespass vi et armis, and no faying whatever of an under-fheriff can make the high-fheriff perfonally liable in that action. Serjeant Walker of the fame fide for the defendants-Spoke to the fame effect with Serjeant Burland. 46 Gould Juftice-As to the recognition by the fheriff, cited 4 Infit. 317. where it is faid, that " by the common law he that receiveth a trefpaffer, and agreeth to a trespass after it be done, "is no trefpaffer, unless the trefpafs was done to his ufe or for his benefit, and then his agreement fubfequent, amounteth to a commandment." Serjeant Davy-cited Saunders verfus Powell. 1 Keb. 693. where it is faid by Twifden Juftice, that trover or trespass will lie against the fheriff in a cafe like this at bar; and 2 Keb. 352. "A fieri facias was to levy the goods of Dawfon; and the bailiff "by virtue thereof took the goods of one Lutterell, as the goods "of Dawfon, and after returns nulla bona of Dawfon, whereupon trefpafs was brought and a recovery had against "the high-fheriff, which [as was faid] is impoffible, for only the under-fheriff himlelf is fubject: fed non allocatur, "for the high-fheriff is chargeable in trefpafs, and the return "of nulla bona will not alter the cafe, having no influence on "Lutterell's goods. And Bro. Office and Officer, pl. 24. is, 06 66 Note, Judgment of the court. 42, 43, and the notes there.1 66 "Nota, that the act of the under-fheriff or his deputy in the name of the fheriff fhall charge the fheriff; and for their "acts the fheriff fhall be amerced and none other. 5 Ed. 4. 4, 5." 66 Gould Juftice-I am of opinion that my Lord Chief Juftice did very right in leaving it to the jury, with this question, viz. "whether they were of opinion, that the fheriff had recognized "the act of Bolland." The fheriff (or the under-fheriff which is the fame in this cafe) makes a warrant to the officer to take the goods of A. in execution, and he feizes the goods of the plaintiff; Frith the under-fheriff's clerk has notice hereof given to him by the plaintiff in writing, who alfo at the fame time demanded the goods to be restored to him, but inftead of ordering that to be done, Frith (as it feems to me) made a joke of the business; I confider Frith as ftanding in the place of, and representing the very perfons of Baker and Martin the fheriffs themfelves, and Frith not ordering the goods fo wrongfully taken to be restored immediately to the plaintiff, the sheriffs from that time became principals in the trespass by recognizing the act of Bolland. If Frith had made any doubt whether the goods feized were the property of the plaintiff or not, it was the duty of him and the fheriff to have made an inquiry by a jury, under a writ of proprietate probanda; but inftead of doing this he tells the plaintiff they have got fecurity, and feems to be quite careless about the matter; I am clearly of opinion that this was an adoption of the fact by the fheriffs themfelves, and upon this ground alone the [See Doug, plaintiff is intitled to have judgment. The cafe in 2 Keb. 352. (a MS. copy whereof I have feen) is directly in point, that trefpafs vi et armis well lies in this cafe. This is not a new notion, for it is laid down by Hankford [Juftice C. B.] 13 Hen. 4. 2. a. b. "That if I bring a writ of debt against J. A. in "which a capias iffueth, if the fheriff by colour of this writ "taketh a man named B. C. he fhall have a writ of false imprifonment against the fheriff, and not against me; but if fo "be that I come to the fheriff with the fame writ, and inform "him that B. C. is the fame perfon against whom the writ is "fued, and because of that certification the fheriff takes him, "he may have a writ of falfe imprisonment against the sheriff "and me, or against the fheriff alone," to which Thirning [Chief Justice C. B.] accorded, and faid that this was law. Something has been thrown out touching the fheriff's liabi lity to answer civilitèr, and not criminalitèr for the acts of his officers, officers, the books mean that the fheriff is not liable to an indictment. In this cafe I confider all three, the sheriff, under-fheriff, and deputy, as one person. 2 Blackftone Juftice-The jury have found the fact, that the fheriff recognized the act of Bolland; but if they had not found that fact, I fhould have thought the fheriff was anfwerable in an action of trefpafs vi et armis for the act of Bolland his of ficer, the law looking upon the fheriff and all his officers as one perfon; he is to look to his officers that they do their duty, for if they tranfgrefs he is anfwerable to the party injured by fuch tranfgreffion, and his officers are anfwerable over to him. Keb. 352. is in point.There is a difference between master and fervant, but a fheriff and all his officers are confidered, in cafes like this, as one perfon." In debt, [to compel the de"fendant to appear,] the fheriff diftrained 7. B. where the "name of the defendant was T. B.; there 7. B. fhall have his remedy against the fheriff, et hoc videtur [lays Brooke] by gene"ral action of trefpafs; but where he ferves the writ truly, " and embezzles it, or makes a falfe return, videtur that an "action upon the cafe lies. Bro. Trefpafs, pl. 135. cites 19 "Hen. 6. 80." 46 Nares Juftice-I am of the fame opinion with my brothers Gould and Blackstone. Frith fhould have faid he would do his best endeavour to get the goods reftored to the plaintiff, if they were his property, and ought to have told the plaintiff fo when he demanded the fame. I have for a long time thought, that trefpafs and imprisonment well lie against the fheriff, for trefpafs and falfe imprifonment committed by his bailiff in the execution of procefs. Bro. Trefpafs, pl. 99. 11 Hen. 4. 90, 91.vide Dalton's Office of Sheriffs, 482. cap. 121.I know of three actions of trefpafs against the fheriff in cafes of this kind; Tyler verfus Johnson, B. R. tried at Stafford in 1764 was imprisonment against the fheriff; the writ and warrant was to take the party plaintiff in the county of Worcester, and the officer took him in the county of Stafford, inftead of Worcester, there was a verdict for the plaintiff, although I objected that the action did not lie against the fheriff, but only against the bailiff; I remember a fimilar cafe tried before Lord Chief Juftice Wilmot, who was of opinion the action well laid against the fheriff; I also remember a third action of the fame kind; fo that in practice it is clear that imprisonment lies against the fheriff, for the act of his bailiff. Lord Lord Chief Justice De Grey-I am of the fame opinion I was at the time of the trial of this caufe, that the action well lies against the defendants the fheriffs. And therefore the rule to fhew caufe why there fhould not be a new trial must be dif charged, And it was discharged accordingly. MICHAELMAS TERM 13 GEO, III. 1772, tion upon the ftatute of 9 Geo. I. c. 22. it was Allen, qui tam, &c. verfus The Inhabitants of the In a declara ACTION upon the ftatute of the 9th of Geo. 1. c. 22. by the plaintiff Allen qui tam, &c. against The inha bitants of the Hundred of Kirkton, to recover fatisfaction and amends for the damages he had fuftained, by the fetting fire to two ftacks of oats, which in the declaration is laid to have been feloniously committed and done by fome perfon or perfons unknown to the plaintiff, which he lays to his damage of 300l. Jaid that two ftacks of oats of the plaintiff were fet on fire feloniously, and well enough, although it Upon the trial of this caufe at the laft affizes, it was proved to was objected the fatisfaction of the jury, that on the 6th of December laft the it ought to plaintiff's two ftacks of oats were feloniously fet on fire by per have been fons unknown, and that the plaintiff was damnified thereby to the value of 170l. and every other requifite being proved accord. ing to the act of parliament, the jury found a verdict for the plaintiff, and gave him 170l, damages, laid to be done unlawfully and maliciously. 2 Black. Rep. $42. S. C. And now Serjeant Forfter moved in arreft of judgment, and objected that the declaration was bad; because it was alledged therein, that the setting fire to the ftacks of oats was committed and and done feloniously, but it is not alledged that it was done unlawfully and maliciously, which are the very words in the ftatute fect. 1. which, being a very penal law, ought to be literally purfued, for it makes many acts capital offences, which were no more than trefpaffes or civil injuries before the making of the ftatute; and he compared it to the flatute of hue and cry, and cited Hob. 139. Norris verfus The Hundred of Gawtry, Noy 21. Bateman verfus The Hundred of Bandalls, and 2 Stran. 1247. King verfus The Hundred of Bishop's Sutton, to fhew, that this being a penal law, the very words of the ftatute ought to be purfued in the plaintiff's declaration; and that the word feloniously is not fufficient without the words unlawfully and maliciously; for a man may fet fire to his own ftacks of oats ftanding in his own land, if he thinks fit, but this is no offence against the ftatute.Serjeant Walker of the fame fide, spoke to the like effect, Serjeant Burland for the plaintiff-The ftatute doth not make ufe of any technical words or expreffions, that are abfolutely neceffary to be inferted in a declaration against the Hundred in this kind of action, but leaves the plaintiff to alledge and prove quo animo his ftacks of oats were fet on fire; here he has alledged in his declaration, and proved at the trial, to the fatisfaction of the jury, that the fame was committed and done feloniously, and that fact which was committed feloniously was certainly done wil fully, unlawfully and maliciously, for doing an act feloniously, is doing it malo animo, viz. with malice; therefore Serjeant Burland concluded that the declaration was perfectly right; and of that opinion was the whole court, and gave judgment for the plaintiff. Batchelor the younger verfus Bigg, C. B. affault for given at the THIS was an action of trespass against the defendant, for In an action having had criminal converfation with the wife of the of trefpafs and plaintiff, wherein he declared, that the defendant with force and criminal conarms, on fuch a day and year, at A. in the county of B. made verfation, the an affault upon C. the wife of the plaintiff, and then and there damages debauched, abufed, and carnally knew her; whereby the plaintiff trial were loft the comfort and fociety of his faid wife, &c. The defendant 11. 11s. 6d. pleaded the general iffue not guilty, whereupon iffue was joined, the plaintiff which was tried by a fpecial jury before Mr. Baron Perrot full cofts, at the laft fummer affizes for the county of Buckingham; when without a a verdict was given for the plaintiff, with one pound eleven certificate of fhillings and fixpence damages, and one pound eleven fhillings and fixpence cofts. The fhall have the judge under the ftat. 22 & 23 Car. 2. 59. [2Black.Rep $54. S. C.] |