For taking goods in execution. 214 I. For taking the plaintiff's goods in execution. cient pledges fourthly, the action to recover money levied; fifthly, the action for taking the goods of a tenant in execution, without paying the arrears of rent; sixthly, the action for an escape on mesne process; seventhly, the action for an escape in execution; eighthly, the action for an extortion of the bailiff; ninthly and lastly, the action for a false return. First, of an action against the sheriff for taking the plaintiff's goods in execution. The One of the most common actions against the sheriff is an action of trespass for the seizure of the plaintiff's goods under an execution issued against a third person. object of this action is to make the sheriff responsible for the act of another, who is supposed to have acted under his authority for it is an established rule, that the sheriff is answerable for the taking by the bailiff, who seizes under the colour of a warrant; the act of the bailiff being considered, for all civil purposes, the act of the sheriff himself.(1)(a) : The points to be proved in this action are, the plaintiff's property in the goods, the taking by the defendant and the connection or relation between the defendant and the bailiff in the particular transaction, which is the subject of (1) Sanderson v Baker, 2 Black. 832. S. C. 3 Wils. 317. Cameron v Reynolds, Cowp. 403. Ackworth v Kempe, 1 Doug. 40. And several other cases to the same effect are cited in 2 Black. 833, 834. (a) An action for the breach of duty of the under-sheriff or deputy must, in general, be brought against the sheriff himself, and not against his inferior cfficer. 1 Chitty on Flead. 73. 12 Mass. Rep. 450. But in Massachusetts, the plaintiff has an election to sue either the sheriff or his deputy. Draper v Arnold, 12 Mass. Rep. 449. Trespass is the proper action against the sheriff for an injury done by his depu ty to the person or property of another. Campbell v Phelps, 17 Mass Rep. 244 the action. With respect to the fact of taking, and the For taknig goods in proof of the plaintiff's property, it is scarcely necessary execution. to say any thing. It may be sufficient to mention, that if the plaintiff claim the goods as his property under an assignment, or bill of sale, or other writing, the written instrument must be proved according to the regular course. In answer to this, the defendant may show that the assignment or bill of sale was fraudulent; and for the purpose of proving the fraud, the declarations of the vendor at the time of his signing and executing the instrument, are admissible in evidence, as a part of the transaction, against the plaintiff, who claims under the vendor; but declarations made by him at any other time cannot be received.(1) 215 The last point, namely, the connection between the Proof of warsheriff and the bailiff, is the principal, and the only point rant. which in this place requires any discussion. The fact of the sheriff having authorised the bailiff to take the execu-* tion, is best proved by the warrant itself, usually kept in the custody of the officer: if the officer has returned it to the sheriff's office, a notice to produce it should be regu- larly served; (2) and, on proof of this notice; secondary ev. idence of the warrant will be admited. The bailiff usually returns the warrant, if not executed, to the sheriff's of tice, but if he has executed it, he keeps it for his own justification, and returns to the sheriff a memorandum of what he has done under the warrant, from which memorandum the sheriff makes his return.(3) After the execution of a warrant, therefore, a notice to produce the warrant should be served on the bailiff; for the plaintiff will not be entitled to give parol evidence of the warrant, on proving a notice only to the sheriff. (4) (1) Phillips v Eamer, 1 Esp.N. P. 357. Penn v Scholey, 5 Esp. N. P. C. 243. (2) As to the notice to produce, the service of such notice, and the proof of the notice, see Treat. on (3) Martin v Bell, 1 Starkie,415. For taking goods in execution. 216 Recognition by sheriff. Further, a written paper purporting to be a copy of the warrant of execution, and delivered as such by the officer at the time of the seizure, is not sufficient to charge the defendant: this is nothing more, in effect, than an admission by the bailiff, that he was acting under the warrant of the defendant; but the bailiff is not the sheriff's general officer, as the under-sheriff is, and any statement made by him, as to his acting under the authority of his superior, is not admissible evidence against the sheriff the warrant itself ought to be produced, as the best proof of the authority.(1) Nor is the bond of indemnity, which the bailiff gives to the sheriff, any proof of his acting under the authority of the sheriff on a particular occasion; for he is not the sheriff's general officer; but he gives a bond to execute such warrants as shall be directed to him; and, when he receives a warrant, he becomes the sheriff's special of ficer.(2) Instead of proving the warrant, if it can be shown, that the sheriff has recognized the bailiff, who executed the writ, as the officer whom he had intrusted with the execution, such a recognition is evidence of the bailiff's acting under his authority, (a) without the production of the warrant.(3) Thus, where a paper was produced from the sheriff's office, containing as well an order to the officer to give the necessary instructions for making a return to the writ in question, as also his return, this was held to be a clear recognition by the sheriff, of his having authorised (1) Drake v Sykes, 1 T. R.113. 116. (2) Drake v Sykes, 7 T. R.113. 117. (3) Sanderson v Baker, 2 Black. 832, in which case the recognition such as it was, of the act done was by the under-sheriff; and that was considered equivalent to a recognition by the sheriff himself. The under-sheriff is the general officer of the high sheriff, and represents him in all the business of the of fice. See also Jones v Wood, 3 Campb. 228. (a) As to a verbal authority from the sheriff to his deputy, vide Commonwealth v Field, 13 Mass. Rep. 321. the officer to execute the writ.(1) So, in the late case of For taking goods in exeMartin v. Bell,(2) an action against the sheriff for the ex- cution. tortion of a bailiff in taking bail, in which case a notice was proved to have been served on the sheriff, calling upon him to produce the bail bonds, which had been executed and delivered to the bailiff, and it was further proved, that one of these bonds had been returned to the sheriff, upon which he had made his return of cepi corpus; Lord Ellenborough held, that this evidence was sufficient to prove the bailiff's agency; the sheriff having by his return on the bail bond taken the fruits of the arrest by the bailiff, which he could not do without also adopting his act.(8) 217 To connect the sheriff with the acts of a particular offi- Indorsement, cer in the execution of a writ, it will not be sufficient to produce an examined copy of the writ and return, with proof that the name indorsed is the name of the sheriff's officer, although it should appear to be the usual practice in the sheriff's office to indorse upon the writ, before it issues, the name of the officer who is to execute the warrant:(4) however, if it were proved, that the bailiff's name had been indorsed on the writ, before it issued, by the undersheriff, or some person authorised by him, that would probably be considered as sufficient evidence to connect the sheriff and the officer. (1) Jones v Wood,3 Camp.228. (2) Martin v Bell, 1Starkie,416. (3) That an adoption of the agency in one part operates as an adoption of the whole act, see Wilson v Poulter, 2 Str. 859. Hovil v Park, 7 East, 164. (4) Jones v Wood, 3 Campb. 229. by Ld. Ellenborough. Martin v Pell, 1 Stark. 413. by Ld. Ellenborough. Hill Sheriff of Middlesex, Holt N. P. C. 217. by Gibbs, Ch. J. The plaintiff, not having other proof against the sheriff, was nonsuited; and the nonsuit was affirmed by the Court of C. P., 7 Taunt. 8. Morgan v for taking goods in execution. Admission by under-sheriff. A question has sometimes occurred with respect to the admissibility of statements and admissions by the under-sheriff, or by the sheriff's officer, as evidence against the sheriff. (a) As to admissions by the under-sheriff, the earliest case, usually referred to, is that of Yabsley v Doble,(1) of which the note is as follows: "The question was, if the confession of an under-sheriff of an escape be any evidence against the high-sheriff; and adjudged that it is: for, though the sheriff is suable, yet the under-sheriff gives him a bond to save him harmless, and therefore it will all fall upon him: and his confession therefore is good evidence, because in effect it charges himself." This is the whole (1) 1 Lord Raym. 190. (a) The declarations and confessions of a general deputy of a sheriff made to the attorney of the plaintiff in answer to inquiries relative to an execution delivered to such deputy to be executed, and while the execution was in force, are admissible evidence to charge the sheriff. Mott and others v Kip, 10 Johns. Rep. 478. In an action against a sheriff for the default of one of his deputies, in not paying over the amount of an execution, the letters of the deputy were beld admissible evidence. Parker, C. J. in delivering the opinion of the Court says; "It has been argued that these letters can only be considered as the confession of Minott, (the deputy;) and although proper to be used in an action against him, they could not be so used in an action against the sheriff, who did not make the confession; and that at the utmost they amounted to the declarations of a witness not under oath, which are never admissible. But we are of opinion that the letters were properly admitted, and properly used by the jury; The action although in form against the sheriff, is substantially against the deputy: who is immediately answerable over to the sheriff upon his bond, and against whom the verdict may be used as evidence to establish the claim of the sheriff against him." "It is also well known in practice, that the deputy always considers himself called upon to answer through the sheriff, that he employs counsel and makes the defence, the sheriff being made by law the agent to answer for the defaults of his deputies: but the deputy himself, who commits the default being substantially the defendant in the suit. We are also well satisfied that the practice has uniformly been to prove the necessary facts by the confession, oral or written, of the deputy, in action against the sheriff." Tyler v Ulmer, 12 Mass. Rep. 163. |