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Marshall v. Ulleswater Company.

1871

it; therefore I think that, if this case turned on a plea, it would be sufficient to allege that the plaintiff maintained the pier in such a place that it was impossible for the *public to use (174 their right to navigate without either knocking down or removing it, and therefore, the defendants, having a right to go, went, doing no unnecessary damage, across the pier. In my judgment, that would be a good plea; and it would not be a good replication to say, “It was erected by you, or by persons to whom you are privy.”

MELLOR, J. I have come to the same conclusion. I was not at first free from doubt, nor is the doubt yet altogether removed; but I think that my Brother Blackburn's view is quite consistent with good sense, which induces me to agree in the judgment. I am not prepared to dispute in any way the doctrines enunciated by him; my only difficulty has arisen from the circumstances under which this pier was erected, but, on the whole, I think it cannot make any difference whether the pier was built by the plaintiff himself, or by Mr. Askew wrongfully in the bed of the lake. The plaintiff must now be supposed to say: “ This pier is mine, and you are wrongfully inducing people to come upon it,” which amounts to the same thing as if the plaintiff had erected the pier himself.

Lush, J. I do not share in the doubt that my Brother Mellor has expressed. It appears to me to be a very clear case, and I think the plaintiff is in precisely the same position as if he had built the pier himself. It was erected by wrong on his soil. He might have had it removed at the expense of the wrongdoer. Instead of doing so he exercised the right he undoubtedly had to claim it as part of his own property. He took possession of it, exercised dominion over it, and now claims, by this action, damages in respect of his right of property. That puts him in exactly the same position as if he had built it, or bought it when built. He maintains the pier for the purpose of obstructing the navigation of the lake; the defendants say: “That pier obstructs us and our right of navigation, and so long as it exists, in consequence of that portion of the pier or jetty which extends into the lake having been so made and constructed, and not having been removed, and remaining as it was originally built, we, the

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defendants, are prevented from disembarking and landing and embarking passengers and goods without using that portion of 175] the pier or jetty which *go extends into the lake.” If the pier were not there they would have the right of bringing steamboats as near their own land as they could, and would have the right of making use of any reasonable means in order to reach the land; it appears to me that is incident to the ordinary right of navigation. They would have been able to do so if the obstruction were not there. That brings the case within Eastern Counties Ry. Co. v. Dorling (). The pier prevents the defendants using their right of navigation, and therefore they have a good justification for passing over it; just as in the case of a person placing a gate across a high road, or maintaining it there, and then seeking to bring an action against a person, who could not use his right on account of the gate, for trespass by climbing over it.

Judgment for the defendants. Attorneys for the plaintiff: Bell, Brodrick, f Grey. Attorneys for the defendants : James, Curtis, f James.

STIMSON v. FARNHAM.

Nov. 25, 1871.

Law Reports, 7 Queen's Bench, 175. Sheriff, Action against False Return Estoppel - Actual Damage. The plaintiff, an execution creditor, delivered a writ of fi. fa. to the sheriff, who proceeded to execute it by seizing goods upon the premises and apparently the property of the execution debtor, but which were then, in fact, in possession of the holder of a bill of sale to whom they had been previously assigned. The sheriff remained on the premises until dismissed by the plaintiff's attorney, and, being directed to return the writ, made a return, that he had seized goods of the debtor and kept them until ordered by the plaintiff's attorney to withdraw from possession. To an action brought by the plaintiff against the sheriff for not levying under the writ, and for a false return, the defendant pleaded (inter alia), nulla bona, and at the trial, set up, as his sole defence, the bill of sale, which the jury found to be valid ; and a verdict was entered for the defendant:

Held, that actual damage was necessary to support the action; that the defendant was not estopped by his return from proving that the goods seized did

(1) 5 C. B. (N. S.), 821 ; 28 L. J. (C. P.), 202.

61

Stimson v. Farnham.

Z 871

not belong to the debtor; that as they were found to be the property of the
signee they were not available for sale under the execution ; and that, there fore,
the plaintiff had sustained no damage from the conduct of the sheriff, and could
not maintain the action.

DECLARATION, against the defendant as sheriff, for not levying under a writ of fi. fa., and for a false return that he had seized the *goods and chattels, in his bailiwick, of the execution (176 debtor, and kept them safe until he received from the attorney of the plaintiff an order to withdraw from possession of the same.

Pleas : 1. Not guilty. 2. Except as to the claim in respect of the return, nulla bona. 3. That after seizure of the goods by the defendant the plaintiff ordered him to withdraw from possession, whereupon the defendant did so, and made the return complained of.

Issue thereon.

At the trial, before Mellor, J., at the sittings in Middlesex in Easter term, 1871, it appeared that the plaintiff had recovered judgment against one Henry Fellows, for 741., and had delivered a writ of fi. fa. to the defendant, the sheriff of Leicestershire, commanding him to levy that sum. The sheriff's officer accordingly went with the writ to the premises of the execution debtor, and seized goods there, which were, however, then in the possession of a claimant under a bill of sale. At the request of the plaintiff's attorney the sheriff's officer remained on the premises until dismissed by him. In the mean while the goods were sold under the bill of sale. The plaintiff demanded a return to the writ, and the defendant thereupon returned that he had seized the goods and chattels of Henry Fellows, and kept them safe in his possession until the 19th of September, 1870, when he received from the attorney of the plaintiff an order to withdraw from possession, and that he then withdrew from such possession. In support of the second plea (upon which alone he relied), the defendant adduced evidence to prove that all the goods apparently belonging to the execution debtor in his bailiwick had, prior to the seizure, been assigned under the bill of sale.

The learned judge asked the jury whether the assignment by the bill of sale was valid or not; they found it to be valid; and a verdict was entered for the defendant, with leave to move to enter a verdict for the plaintiff for 771.

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A rule was accordingly obtained, on the ground that the defendant was concluded by his return.

Mundell, Q. C., and Abbott, showed cause. As the assignment was valid the goods did not belong to the execution debtor; therefore the plaintiff has suffered no loss through the conduct 177] of the defendant, *and cannot maintain the action. It is the duty of a sheriff to execute a writ directed to him, and to make a true return. But this duty is only imposed upon him for the benefit of the creditor; and if he can absolutely negative the possibility of any advantage accruing to the creditor from the performance of his duty, the creditor will not be entitled even to nominal damages : Mayne's Law of Damages, p. 4; Williams v. Moslyn (); Wylie v. Birch (3). Secondly, the defendant was not estopped by his return from proving that the goods seized were not the property of the debtor: Remmet v. Lawrence (3). There a sheriff returned to a fi. fa., that by virtue of a writ previously delivered to him by another creditor he had seized goods of Webb, the debtor; and to an action for a false return he pleaded not guilty, and other pleas in denial of there having been goods of Webb, which were, or might have been seized under the plaintiff's writ. It was held that the sheriff was not estopped from showing that the goods did not belong to Webb.

[BLACKBURN, J. In Levy v. Hale (0) Williams, J., points out that in Remmett v. Lawrence (3) Lord Campbell says, “ If he had returned that he had taken Webb's goods, and had them in his hands for want of buyers, he would have been estopped from denying that the goods were Webb’s,” and, upon counsel arguing that the observation of the Chief Justice was an obiter dictum without authority, Williams, J., cited Mildmay v. Smith (); Clerk v. Withers (); adding that it was “too strong to say that there is no authority in favor of what Lord Campbell says in Remmett v. Lawrence (3).”]

The judgment, however, in Levy v. Hale (7) supports the present contention. The doctrine of estoppel, stated in Pickard v. Sears (0), does not apply to the present case, for the position of (1) 4 M. & W., 145.

(0) 2 Wms. Saund., 343. ( 4 Q. B., 566.

2 Ld. Raym. at p. 1075. ) 15 Q. B., 1004; 20 L. J. (Q. B.), 25. (1) 29 L. J.(C. P.), 127. (9) 29 L. J. (C. P.), at p. 130.

(TM) 6 Ad. & E. at p. 474.

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the plaintiff was not altered by the false return : 2 Sm. L. C., 6th ed., p. 769; notes to Duchess of Kingston's Case. The onus of showing actual damage from the falsehood of the return rests on the plaintiff, who has not proved any. The sheriff is a ministerial officer, and *is not estopped by the formal return (178 which he is compelled to make.

Field, Q.C., and J. W. Mellor, in support of the rule. The defendant was estopped by his false return, as the plaintiff acted upon it by bringing the action.

[BLACKBURN, J. That is an attempt to extend the doctrine in Pickard v. Sears (') much further than it has ever been carried.]

It might well go to that length. In Field v. Smith (), a sheriff had levied and sold goods under a fi. fa., and, after receiving information that the debtor had petitioned the Insolvency Court, returned fieri feci; and it was held that he was bound by that return. The passage above cited from the judgment of Lord Campbell in Remmett v. Lawrence () is much in favor of the present plaintiff. Two courses were open to the sheriff, he might either have returned nulla bona or have interpleaded. He adopted neither. Matters subsequent may defeat a return, as in Standish v. Ross (1); but there was no matter subsequent in this case. All the facts were known to the defendant when he deliberately made his untrue return. At least he might have applied to amend it.

COCKBURN, C.J. I am of opinion that this rule must be discharged. The action is founded on tort, for a wrong done by the sheriff in making this return, which was in one sense a false return. Now the rule respecting such actions against a sheriff is, that, not only must a wrongful act have been committed, but damage must have been thereby caused, in order to entitle the person injured to maintain the action. That fundamental rule would apply here, unless the present case is shown to be excepted from it. It has been argued that this being an action against a sheriff for a false return, he is concluded by the return he has made. We must look to see whether there is

any

sufficient authority for saying that this case forms an exception to the general principle governing actions of this character. The (1) 6 Ad. & E. at p. 474.

(*) 15 Q. B., 1004; 20 L. J. (Q. B.), 25. ( 2 M. & W., 388.

(*) 3 Ex., 527.

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