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described in the body of the writ; and the notice was Exch. of Pleas, merely to inform him of the object of the process, and when he was to appear, and could not mislead the de Wright fendant.
*** wject of the process, and
Rule absolute, with costs (a).
(a) By the stat. 12 Geo. 1, c. 29, (amended by 5 Geo. 2, c. 27, made perpetual by 21 Geo. 2, c. 3, and extended to inferior Courts by 19 Geo. 3, c. 70, s. 2), where the cause of action is not bailable, the defendant must be served with a copy of the process, upon which shall be written an English notice, &c. This notice is only necessary on the copy of the process served, and need not be on the writ itself;
Lloyd v. Maurice, 9 East, 528 ; but
several defenants in an ac
DAVIES 0. MORGAN and Others. E. V. WILLIAMS moved that service of the quo minus Where one of upon the wife of one of the defendants, who was abroad, might be deemed good service in this, which was an action tion ex contrac...
tu, is abroad, the ex contractu, unless the other defendants would undertake Court will not
m order that sernot to plead in abatement. He urged, that the plaintiff vice of the procould proceed in no other mode in this Court, in which cess upon the
wife of such dethere was no outlawry.
fendant may be deemed good
service, nor reLord LYNDHURST.–We cannot grant this application. strain the other
defendants from In such a case the plaintiff should sue in a Court in which
abatement. he may proceed to outlawry.
Exch. of Pleas,
Scott, qui tam, &c. v. MARSHALL and Another, Sheriff of
In an action DEBT against the Sheriff of Middlesex for extortion in against the Sheriff for the the execution of mesne process. extortion of his on officer, the
On the trial, before Lord Lyndhurst, C. B., at the Westplaintiff proved minster Sittings after last term, it appeared, that one Radan examined copy of the writ ford had executed the process and taken the money, which on which the officer's name was alleged by the plaintiff to have been taken extorsive
sindorsed, ly. To connect the Sheriff with the act of Radford, the and that a person of that name plaintiff offered in evidence an examined copy of the writ, actually executed the writ, and as returned by the Sheriff; upon which was indorsed that the course ro Radford & Co of the Sheriff's office was, that Evidence was given by Mr. Burchell of the underthe name of the officer to whom sheriff's office, that writs generally came into the office the warrant was
with the name of the officer who was to execute the writ granted was usually indorsed indorsed upon them by the attorney for the plaintiff, and on the writ: Held sufficient that the officer whose name was so indorsed was geneLence to connect rally adopted; but if not, the name was struck out, and the Sheriff with the name of another officer was inserted, who was to exethe acts of the officer. cute the writ; and if the writ came to the office without
such indorsement, it was indorsed in the office. He said also, that it might sometimes happen, that an alteration might take place as to the officer who was to execute the process without the indorsement on the writ being altered, but that such alteration would appear from a book kept in the Sheriff's office.
The defendants' counsel objected to the reception of the copy of the writ and return in evidence, which was, however, received by the learned Lord Chief Baron, and the plaintiff had a verdict, with liberty for the defendants to move on this and other points (a).
(a) The Jury found that the money was not taken for the per
sonal benefit of the Sheriff, which Burchell contended, upon the conBurchell now moved accordingly. - Though this has Exch. of Pleas,
1832. been a point which has been often debated, the authorities are decisive, not only that the copy of the writ is insuffi- Scott cient evidence, but that the writ itself, if produced with MARSHALL. the indorsement in question, would not have heen evidence to connect the Sheriff with the act of the officer. The writers on evidence all agree in laying down the proposi. tion as contended for on behalf of the present defendants.
In Roscoe on Evidence (a) it is stated, “if the warrant remains in the hands of the bailiff as if executed, (it'usually does for his justification), a subpoena duces tecum should be served upon the bailiff. If it has been returned to the Sheriff's office, a notice to produce should be given, and secondary evidence will then be admissible.” “ It is not sufficient to produce an examined copy of the precept with the bailiff's name indorsed on it, though the Sheriff has returned cepi corpus. Martin v. Bell (6). So, where an examined copy of the writ and return, with the bailiff's name written on the margin, was produced, Lord Ellenborough held it insufficient to connect the Sheriff with his acts. Jones v. Ward (c), Hill v. Sheriff of Middlesex (d), Morgan v. Brydges (c).” Mr. Phillips says (f)_" To construction of the stat. 23 H. 6, c. 9, pealed by the stat. 32 G. 2, c. 28, amounted to a verdict for the de- and cited Martin v. Bell, 6 M. & S. fendants. He admitted that the 220; Murtin v. Slade, 1 N. R. 59; Sheriff would be liable in case for Jaques v. Whitcomb, 1 Esp. 361; the act of his officer; but submit- Lovell v. Simpson, 3 Esp. 153; ted, that he was not liable in the George v. Perring, 4 Esp. 63, and action given by the statute, be- Boldero v. Moss, 5 T. R. 417. canse a distinction was drawn be. The Court directed these points tween the reward to the Sheriff to be stated in a special case, but and the officer. And he relied the cause was subsequently comupon the language of Ashhurst, J., promised. and Buller, J., in the case of Wood. (a) Page 483. gate v. Knatchbull, 2 T. R. 154, et (6) 1 Stark. N. P. C. 413. seg.
(c) 3 Camp. 228. He also moved in arrest of (d) Holt, 217; S. C. 7 Taunt. 8. judgment, upon the ground that (e) 2 Stark. 314. the statute 23 II. 6, c.9, was re (1) Page 266, 6th edit.
Exch. of Pleas, nect the Sheriff with the acts of a particular officer in the 1832.
execution of a writ, it will not be sufficient to produce an
examined copy of the writ and return, with proof that the MARSHALL. 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 (6): 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 officer was called as a witness; and, in Francis v. Neave (f), 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.
(e) 5 Moore, 184, n. 3 B. & B. 27, n.
(F) 2 B. & B. 26.
In Hill v. The Sheriff of Middlesex (a), the same point was Exch. of Pleas,
1832. taken, and the evidence was rejected. Gibbs, C. J., who was well acquainted with the practice of the Sheriff's of- SCOTT fice, observed—“It is said, that the Sheriff and the officer MARSHALL. 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 (6).
[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.
(d) 3 Camp. 229.