authority most relied upon is a dictum by Lord Campbell in Remmett v. Lawrence (1), where, I would remark that, it was altogether an obiter dictum, and quite unnecessary to the decision of 179] the case. Therefore, *although respect is due to anything said by that distinguished judge, yet the dictum in question will not bind us if we see our way, on principle, to a different conclusion. The authorities relied on as supporting that dictum are those referred to by Williams, J., in Levy v. Hale (2), viz., Mildmay v. Smith (3), and Clerk v. Withers (*). Now, in Mildmay v. Smith (3) the sheriff had suffered goods seized under an execution, and returned by him as of a certain value, to be rescued out of his hands, and the Court held that a scire facias. lay against him of the money according to the value returned. It was there argued that the sheriff is in no case chargeable for the debt on a fieri facias, unless he returns that he has the money in his hands. . . "Sed non allocatur; for the sheriff by his return of the rescue has put the plaintiffs to the end of their suit; for they cannot sue a new execution, except only for the surplus of their debt, over and above the 160l.; and the Court cannot award a venditioni exponas, because it appears that the goods are out of the sheriff's hands: 33 Hen. 6, 36a. Therefore the plaintiffs ought to have a writ of debt, or scire facias, on the return against the sheriff. . . or, as here, otherwise they are without remedy . . . . . But true, it is, if the sheriff do not misbehave himself, he is not chargeable in debt or scire facias, unless it appears by his return that he has the money in his hands; as if he returns, 'I have taken, and caused to be seised into my hands, goods and chattels to the value of 1601., which remain in my hands for want of buyers;' there, on this return, he is not chargeable in debt or scire facias, because he has not misbehaved himself, but has done his duty, for there is no default in him." Now observe what follows. "But it is otherwise here, for he has suffered the goods to be rescued out of his hands, which is a great fault in him. Wherefore the judgment was affirmed as aforesaid." In the other case of Clerk v. Withers (), Lord Holt said, "The sheriff is answerable for the value of the goods after he has seized them, and is bound to sell them at all events, and he is bound to the value he has

(1) 15 Q. B., 1004; 20 L. J. (Q. B.), 25. (2) 29 L. J. (C. P.), at P. 130.

() 2 Wms. Saund., 343.

(1) 2 Ld. Raym., 1075.

returned them to be of. And though the goods are lost or rescued from him, he is bound, not to that value which they may after appear or be found to be of, but to the value *he returned them to be of; that is the value he is bound to, [180 and an action of debt lies against him for that value. And that is the case in Saunders' Reports (2d part, 343, Mildmay v. Smith), and by the same reason he is compellable to sell them according to that value." Both those cases were cases of scire facias, and neither was like the present, which is an action of tort; therefore, I think those authorities do not apply, and I find no ground for saying that the tort in the case we have now to consider forms any exception to the general rule already stated. Here it is clear that no damage was sustained, for the moment it was ascertained that the bill of sale was bona fide and valid, no matter what the return of the sheriff had been, the goods were not available, they could not have been sold for the benefit of the plaintiff, the execution creditor, and, therefore, he has not suffered. It may be that the sheriff is to some degree blameable for having taken the course of making this return, or for not adopting the usual and plainly available remedy of interpleading; but we are not to consider how far the sheriff is open to reprehension on that account. The question is whether the present case has been shown to be any exception to the general rule in actions of tort brought against a sheriff. I find no authority for saying that it is, and the rule must therefore be discharged.

BLACKBURN, J. I am also of opinion that the rule must be discharged. An action against a sheriff for a false return will not lie unless actual damage has been caused to the plaintiff; and in the present case, on the finding of the jury that the goods seized were not the debtor's goods, there was no damage, and the action will not lie. But, then, was the sheriff estopped by his return? The general rule is, that what a man says is evidence against him, and nothing more. He may show that what he said was a wilful untruth. Nevertheless there are a good many cases in which a man is not permitted to contradict his assertions, and in which he is precluded, or, in technical language, estopped from doing so; as in the cases of Pickard v.

1871

Stimson v. Farnham.

Sears (1) and Freeman v. Cooke (2). But I do not see anything to bring this return of the sheriff that the goods seized were goods 181] of the debtor,- a mere averment preliminary *to his answer, within the principle of estoppel, and I do not understand why the fact of his being sheriff should make it operate as an estoppel. Where the sheriff has made a return by which he shows a state of things such as that the plaintiff is entitled to receive the money, there the question is quite a different one, for the sheriff says he has money in his hands belonging to the plaintiff. The plaintiff, according to the record as it then. stands, is entitled to have the money. Mildmay v. Smith (3) was not an action for false return. The sheriff had returned that he did seize goods of the debtor, and should have levied the debt, but that they were rescued out of custody. The plaintiffs brought an action on scire facias, and the Court of Common Pleas held that the sheriff was bound by his return, and, consequently, that the plaintiffs were entitled to have execution against him for the value of the goods, as he should have been prepared with sufficient force to resist those people who came to the rescue. Then error was brought, and it could not be denied that the return was bad, but an attempt was made to impugn the judgment of the Court below, because credit had been given for the value of the goods, as returned by the sheriff; to which the answer of the Queen's Bench in effect was, "He has by his own fault put the plaintiffs to an end of their suit; for they cannot sue a new execution, except only for the surplus of their debt over and above the sum returned, and we cannot order the goods to be sold because they are out of the sheriff's hands." And so on those proceedings the sheriff was estopped. That seems reasonable enough. Again, the case of Clerk v. Withers (4) related to quite a different matter: Lord Holt there,. considering the effect of the execution creditor dying after seizure and before sale, points out that the position of the creditor was altered by the goods having been seized: for that he had no further remedy against the judgment debtor, but must proceed against the sheriff, who was bound to sell the goods, and was bound to the value he had stated them to be of in his return, and was not hindered from selling by the death of the exe

(1) 6 Ad. & E. at p. 474. (*) 2 Ex., 654.

(3) 2 Wms. Saund., 343.
(*) 2 Ld. Raym., 1075.

Stimson v. Farnham.

cution creditor. And Mildmay v. Smith was citel. Neither of those cases are authorities for saying that the present defendant was estopped by his return. Then in Remmett v. Lurrence "") is a passage which is the only authority supporting [182 the argument for the plaintiff. Lord Campbell, C.J., is reported to have said that if the sheriff had returned that he had got the debtor's goods, he would have been estopped. The observation may possibly have been misunderstood, but more probably, the learned judge in forgetfulness used inaccurate language. The dictum was cited in the case of Lery v. Hale (3), by Williams, J., whose observations merely show that he had not made up his mind that Lord Campbell was not right. But the two cases he cited do not support the dictum, nor do I see any principle upon which it could be supported. I am therefore of opinion that this rule must be discharged.

MELLOR, J. I am of the same opinion. When the rule was moved we thought it should not be granted, but Remmett v. Lawrence (2) was cited, and we gave this opportunity for examining the dictum upon which the plaintiff's counsel mainly relied. I do not regret that we did so, as the question has now been thoroughly discussed, and we find the authorities satisfactorily show that in actions such as this against a sheriff there is no exception to the ordinary rule that not only must a tort have been committed, but actual damage must have resulted therefrom in order to entitle the plaintiff to recover. There was, in this case, no damage, and consequently the rule must be discharged.

Statute of Frauds (29 Car. 2, c. 3) s. 4— Promise to be answerable for debt of Another-Evidence of Promise to be Primarily liable.

The plaintiff had been employed to construct a main sewer by a local board of health, of which the defendant was chairman. When the sewer was nearly completed the board gave notice, under 11 & 12 Vict. c. 63, s. 69, to the occupiers of the adjoining houses, to connect their drainage within twenty-one days, or the board would do the work at their expense. Before the twenty-one days had expired, the plaintiff, having completed the sewer, was about to leave the place with his carts, &c., when the defendant sent after him, and the following conversation took place. The defendant said, "What objection have you to making the connections?" The plaintiff replied, “I have none, if you or the board will order the work, or become responsible for the payment." The defendant replied, "Go on and do the work, and I will see you paid." The plaintiff accordingly did the work under the superintendence of the surveyor of the board; and sent in the account to the board debiting them with the amount. The board refused payment on the ground that they had not authorized the order; and after more than two years, the account being still unpaid, the plaintiff made a claim and brought an action against the defendant.

The above evidence having been given by the plaintiff, the defendant denied that any conversation of the kind deposed to ever took place; the jury found that it did take place, and a verdict passed for the plaintiff, leave being reserved to enter a nonsuit.

The Court of Queen's Bench made the rule absolute to enter a nonsuit, on the ground that the conversation did not amount to an undertaking of the defendant to be primarily liable for the work; but only to a promise that if the plaintiff would do the work on the credit of the board, the defendant would pay if the board did not, and that this was a promise to be answerable for the debt of another person within s. 4 of the Statute of Frauds, and not being in writing could not be enforced. On appeal :

The Court of Exchequer Chamber reversed the judgment, on the ground that there was evidence on which the jury might have found that the defendant agreed to be primarily liable.

APPEAL by the plaintiff from the decision of the Court of Queen's Bench, making absolute a rule to enter a nonsuit.

The following is the substance of the pleadings and case:First count: That defendant was chairman of the local board of health of Brixham, and in consideration that plaintiff would do certain work for the board at request of defendant, as and assuming to be agent of the board, defendant promised plaintiff