Exch. of Pleas, nect the Sheriff with the acts of a particular officer in the 1832. SCOTT v. MARSHALL. 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 (the warrant) issues, the name of the officer who is to execute the warrant." And he adds in a note, that, " particularly, Hill v. The Sheriff of Middlesex has fixed the rule." It is true, that the authorities are conflicting; but, upon examination, they will be found to resolve themselves into the principle above stated.-First, then, as to the cases in which such evidence has been received. In Blatch v. Archer (a), the first upon the subject, the point was not made at the trial; and it does not distinctly appear from the report how the question arose; and, therefore, that case is entitled to no weight. The next case is M'Neil v. Perchard (b): that was an action against the Sheriffs of London, and it was proved to be the practice, to indorse in that office the name of the officer to whom the warrant was directed: it is not, therefore, applicable to a case in which, by the practice of the office, the writ is indorsed before it comes to the office, and the officer may subsequently be changed; for the indorsement in the office is an admission by the Sheriff, that the warrant was granted to a particular officer. The same observation applies to Tealby v. Gascoigne (c), and Bowden v. Waithman (d), in which the like evidence was received. In Fermor v. Phillips (e), the of ficer was called as a witness; and, in Francis v. Neave (ƒ), the name of the bailiff was proved to have been indorsed in the Sheriff's office. On the other hand, there are cases, which decide that such evidence is not admissible. (a) Cowp. 63. (b) 1 Esp. N. P. 263. (e) 5 Moore, 184, n. 3 B. & B. 27, n. (f) 2 B. & B. 26. 1832. SCOTT บ. MARSHALL. In Hill v. The Sheriff of Middlesex (a), the same point was Exch, of Pleas, taken, and the evidence was rejected. Gibbs, C. J., who was well acquainted with the practice of the Sheriff's office, observed-"It is said, that the Sheriff and the officer are connected by the indorsement on the writ; it is not so, unless the plaintiff can shew that the officer's name was indorsed upon the writ, by the authority of the Sheriff. The writ is only evidence against the Sheriff, to the extent of his duty upon the writ, and it is no part of his duty to annex the name of the officer to the return. The name of the officer might have been indorsed by the plaintiff himself or his attorney." This case was affirmed in banc (b). [Bayley B.-There was no evidence in that case of the course of the office.] It certainly does not appear from the report, but the language of the Chief Justice is not directed to that point; he says generally, that the warrant must be traced to the Sheriff. The general course of office raises only an implication, that the warrant was granted to the officer named; it may have been given, notwithstanding, to another officer; and the Sheriff would be fixed by an act not in the course of his duty. In Morgan v. Brydge (c), evidence was given of the course of the office of the Sheriff of Middlesex; but nevertheless, Abbott, C. J., rejected the evidence. That case was in every respect similar to the present. And in Jones v. Wood (d) Lord Ellenborough rejected similar evidence, although it was contended, that, by the course of the office, the indorsement meant that the warrant was directed to a particular officer. So, in Martin v. Bell (e), the course of the office was proved, and the name of the bailiff had been indorsed on the writ; but Lord Ellenborough held, that it was necessary, either to (a) Holt, N. P. 217. (b) 7 Taunt. 8. (c) 2 Stark. N. P. 314. (d) 3 Camp. 229. 1832. SCOTT v. Exch. of Pleas, produce the warrant, or to shew some recognition on the part of the Sheriff of the agency of the officer. In Fonsick v. Magnay (a) the question was, whether the indorsement of the name of Owen, the officer, upon the writ, was sufficient to fix the Sheriff of Middlesex with the acts of the officer; and Gibbs, C. J., was of opinion that it was not. MARSHALL. At all events, the examined copy of the writ could not be evidence; for the indorsement was no part of the return or of the record, but a mere memorandum of the Sheriff, which it is not part of the duty of the Sheriff to indorse; and, if not part of the record, it could not be proved by an examined copy. Lord LYNDHURST, C. B.-The cases which have been relied upon are principally Nisi Prius decisions. The question came before the Court of Common Pleas in the cases of Fermor v. Phillips, Francis v. Neave, and Bowden v. Waithman; and that Court deliberately decided that such evidence was sufficient. I do not say that the evidence is conclusive, but the indorsement is prima facie evidence: and if the warrant was granted to a different officer, the Sheriff, by reference to his book, has the means of proving that fact, and of rebutting the presumption which arises from the indorsement. A recognition by the Sheriff of the act of the bailiff dispenses with other proof that the bailiff acted under due authority; and the course of office amounts, prima facie, to such a recognition. It was proved here, that if the writ came to the office indorsed, such indorsement was adopted in the office; otherwise, the writ was indorsed in the office. It amounts to the same thing as if the clerk of the under-sheriff, or the under-sheriff himself, had indorsed the writ. If the writ would be evidence, I think the examined copy is evidence also. (a) 1 Marsh. 554. 1832. SCOTT v. MARSHALL. BAYLEY, B.—I think it clear that this is prima facie Exch. of Pleas, evidence, to fix the Sheriff with the acts of the officer, whose name is indorsed upon the process which is returned. It appears to be the course of the office, that the name of an officer is always indorsed on the process, either before it comes to the office, in which case the indorsement is generally adopted, and thereby becomes the act of the Sheriff, or if the process is not indorsed before it is delivered to the Sheriff, the name is there indorsed after it is received. The writ so indorsed is returned and filed; and it cannot be presumed, that any alteration is made after the writ is filed. The Sheriff, therefore, sends out the writ, with an intimation, that the officer whose name is indorsed is the officer by whom it was executed; and there is no hardship upon the Sheriff; because, if the warrant be granted to a different officer, the Sheriff has the means of proving that fact. The case of Fonsick v. Mugnay was an action against the late Sheriff, and the Chief Justice "agreed, that if it had been proved, that the defendants, as Sheriff, had received the return, it would have been sufficient to shew that Owen was their officer." This clearly shews what would have been the opinion of the Chief Justice upon this point. The rest of the Court concurring, the rule was Refused. Exch. of Pleas, 1832. In an action on a policy of insurance in the usual form, on BLACKETT V. THE ROYAL EXCHANGE ASSURANCE COMPANY. COVENANT on a policy of assurance at and from Lon don to Calcutta, on the ship Thames, her tackle, apparel, ship, boat, &c. ordnance, munition, boat, and other furniture, in the usual form; with the memorandum, "free from average, under 31. per cent., unless general." evidence of usage that the underwriters never pay for the loss of boats the ship, slung upon the quar ter, is inadmissible. At the trial, before Vaughan, B., at the London sittings, on the outside of the plaintiffs having proved the loss of a boat, which, with other damage, subsequently incurred by stress of weather, amounted to more than 31. per cent., the defendants offered evidence of a usage, that boats, slung upon the outside of the ship, on the quarter, were not protected by the policy. It had been proved, on the part of the plaintiffs, that such slinging was proper and necessary in voyages of the description insured against. The learned Baron was of opinion, that such evidence of usage was inadmissible, and he accordingly rejected it. On the memorandum, "free from average under 31. per cent.," the underwriter is liable for the amount of the aggregate of several partial losses, each less than 31. per cent., but amounting together to more. The defendants then contended that several partial losses, each in itself less than 31. per cent., but amounting in the aggregate to more than 31. per cent., could not be lumped together, so as to take the case out of the exception contained in the memorandum. The learned Baron reserved the point; and the plaintiff had a verdict, with leave for the defendants to move on the rejection of evidence of usage, and on the construction of the memorandum. In Michaelmas Term, the Attorney-General obtained a rule accordingly, citing Pelly v. Royal Exchange Assurance Company (a), on the first point; and Stevens on Average (b), on the last. (a) Burr. 341. (b) Page 205. |