CHAPTER V. ACTIONS AGAINST HIGH SHERIFF. SECT. I. &c. GENERAL OBSERVATIONS. upon some Liability of THE maxim of respondeat superior approaches nearly to universal High Sheriff truth, as applicable to the persons now under consideration. It for his Under-sheriff, is true that constructive negligence or misconduct arising from bailiffs, the acts of an agent has been holden not to attach Respondeat public officers (a), such as the postmaster-general (b), commissuperior sioners of the customs and excise, auditors of the exchequer, (a distinction in favour of those and some other public officers of ancient date,) yet, as will appear, the exception never did nor does include High-sheriff; but that for all civil purposes, wherein he acts ministerially (not judicially), the law looks upon him and his officers as one person (c), and for whose acts he is responsible to the world. does not apply to some public offi cers, but to Sheriff it does. Civiliter, but not criminaliter liable, meaning of the terms. It becomes then material to inquire how he is made responsible, and to what degree such his responsibility extends. In answer to the first question the language of Buller, J., in the case of Woodgate v. Knatchbull (d) is very forcible and clear. "This (says he) depends on the true meaning of an expression in the books that the Sheriff is answerable civiliter, but not criminaliter, for the acts of his bailiffs. So long ago as the case in Latchford the line was drawn with so much precision that it does not admit of any doubt. There it is explained to mean that the Sheriff shall not be imprisoned or indicted for the acts of his bailiff, but that an action lies against him by the party grieved (a) Per Holt, C. J. 2 Salk. 240; 4 Term Rep. 66; ante, p. 45. (b) Lane v. Cotton, 1 Ld. Raym. 606; Whitfield v. Lord Despencer, Cowp. 754, 766. (c) Woodgate v. Knatchbull, 2 Term Rep. 150; Cameron v. Rey- for damages, and he shall be fined, so that he is not liable to any corporal punishment; but when it rests in damages, he shall make the party a pecuniary satisfaction." Thus much as to the nature of the proceedings against him for the misconduct of his officer. : Next, as to the extent of his liability in order to define the Extent of same, the law of master and servant (the principles now under liability. discussion being derived from that source) should properly be well considered and compared; but it is considered better simply to state in general terms that his liability is not confined to mere acts of negligence, (the utmost extent of a master's liability for the acts of his servant) (e), but extends to wilful acts, and even to such as would warrant a criminal prosecution, such as extortion and the like (ƒ). Whether this difference in degree flows from the nature of the duties he has to discharge to the world, or from the security he takes or is supposed to take from his officers, which is not done in other cases-from one or both, seems unnecessary to determine; the latter, however, is more generally assigned by the Courts as the reason; such is the extent of his liability. must be As a general rule of pleading, all actions for a breach of Action in duty must be brought against the High Sheriff, whether it be general for the default, extortion, or other misconduct, wilful or negli- against gent, of the officer (g). There are, however, be it observed, some instances of misfeazance and malfeazance, for which the officer himself may be made defendant, as by the statutes against extortion, in like manner for a voluntary escape, or any act of trespass in executing process, for the officer thereby becomes an actual personal wrongdoer (h). High Sheriff. Again, to charge the High Sheriff at all, two things must con- But he must cur-1st, he must be acting in a ministerial and not in a judi- be acting in cial (i) character; and 2dly, his officer must be acting under his (e) M'Manus v. Crickett, 1 East, 106; Crofts v. Alison, 4 B. & A.590. (f) 2 Term Rep. 151, 712; 7 id. 267; 11 East, 25; 8 B. & Cr. 602; Smart v. Hutton, 2 Nev. & M. 426; 1 Ch. Pl. 82, 6th edit. (g) Cameron v. Reynolds, Cowp. (i) Metcalfe v. Hodgson, Hut. 120. a ministerial capacity. And the be acting under his authority, express or implied. Acts not within the liffs duty, but subsequently assented to. authority, express or implied; an instance of the former proofficer must position is reported in the case of Tinsley v. Nassau (k), when it was holden that he was not liable for the act of the bailiff in executing a warrant issued by him in his judicial character of judge in the County Court (1). The latter proposition too requires some instance or explanation, and herein of the acts of the scope of bai- officer not within the line of his duty, but subsequently assented to or adopted by the Sheriff in his return or otherwise. In the case of Underhill v. Wilson (m) the plaintiff's goods, farming stock, &c. having been seized under an execution at the suit of one P., the parties, with the assent of the officer, agreed that the latter should remain in possession for a certain period, and that the farm should in the mean time be managed by the plaintiff; and the Sheriff in his return took credit for the money laid out upon the farm; and an action was brought in his name by the Under-sheriff, wherein a sum of money was recovered upon a contract entered into by the officer with an incoming tenant for the sale of hay, &c., the receipt of which sum was admitted in a letter written by the Under-sheriff to the plaintiff's attorney: held, that this was sufficient evidence of an assenting by the Sheriff to the acts of his officer; and consequently that he and not the officer was liable to the plaintiff for the surplus proceeds of the goods, after satisfying the levy and expenses. In Crowder v. Long (n) D. (the officer) withdrew without the knowledge of the Sheriffs, but with the full knowledge and assent of the defendant: the Sheriffs were compelled in consequence of that misconduct of the officer so authorized by the defendant to pay to a third person the value of those very goods which they had already paid to the defendant. Lord Tenterden says, "It is quite clear that the Sheriffs are entitled to recover the money so paid to the defendant, unless at the time when such payment was made they were acquainted with the fact of the misconduct of their officer. I think that as between these parties the act of the officer is not to be considered the act of the Sheriff, so as to make the latter by implication parties to the misconduct of the officer; but that it was incumbent on the defendant to show that the Sheriffs had actual knowledge at the time when they made that payment." The legal inference deducible from this case is, (k) M. & M. 52; 2 Car. & P. 582. (1) Ante, 67. 17. (m) 4 M. & P. 568; 6 Bing. 697. (n) 8 B. & Cr. 602; 3 M. & R. that the knowledge of the officer is not necessarily the knowledge of the High Sheriff, and that the jury (whose province it is to determine the fact) will not, where the officer deviates from his line of duty at the instance of a third party, as between the Sheriff and such third party, conclude the former, without proof of actual knowledge of the officer's misconduct: as between him and others not parties to the laches of the officer, the knowledge of the one seems necessarily the knowledge of the other, without proof of actual knowledge of the officer's misconduct (o). Thus much as to acts not within the line of the officer's duty, but subsequently assented to or adopted by the Sheriff. The evidence necessary to connect the Sheriff with his officer in matters within the scope of his authority, and what amounts in such cases to a recognition by him as his officer, will hereafter be fully considered. With regard to a special bailiff, it has already been observed that no act of his will affect the High Sheriff, and simply because he is the servant of the plaintiff and not that of the High Sheriff、p); but note, if A., as the special bailiff of B. arrest C., the instant the arrest is made A.'s special character is at an end, and he is then, in contemplation of law, the bailiff or servant of him in whose custody C. is, namely, of the High Sheriff. Liability for acts of special bailiffs. It has been already stated likewise as to bailiffs of liberties, Bailiffs of that they are not the Sheriff's officers, consequently no liability liberties. attaches upon him for any thing done by them upon his man date (q). No notice of action for any thing done by him in executing the Notice of process of the Court is required : "for by the law of England action. bringing an action is sufficient demand and notice, and whenever the contrary is the case, it is and must be matter of legislative enactment" (r). It is next proposed to consider the different causes of action against him under their specific heads. Ante, p. 45. (p) Ante, p. 46. (q) Noy, 27; 3 Wils. 309; Ackworth v. Kemp, 1 Dougl. 42; Booth man v. Surrey, Earl of, 2 Term Rep. (r) 1 Bing. 373; 8 Moore, 400. When action will lie for escape. Custody must be lawful. SECTION II. ESCAPE. An action will lie against the High-Sheriff for an escape on mesne process, final process, outlawry (a), or attachment, whether issuing out of a Court of law or equity (b). Before entering upon the consideration of what amounts to an escape it must be premised that an escape necessarily implies an antecedent state of lawful custody (c); in Rogers v. Jones (d) the affidavit of debt was made before a deputy not duly appointed Lord Tenterden says, "the arrest was not good, and as the party was never in lawful custody no action for the escape can be maintained against the Sheriff." In Brazier v. Jones (e) Bayley says, "in an action for an escape the plaintiff must aver and show in evidence not only the escape of the prisoner but that he was previously lawfully detained" (if specially traversed). And in Viner's Abridgment it is said, "an escape cannot be on a tortious arrest, as where the arrest is in a wrong county" (ƒ). Sometimes, however, a doubt may be raised when a man is in a state of legal custody, thus, if an arrest takes place in a liberty; as the arrest, however, in such a case is legal, as against all the world but the bailiff of that liberty, an escape in law would be the consequence, if the party arrested were set at liberty by the Sheriff (g). So if a prisoner is taken upon an erroneous judgment, in this case likewise he is in a state of lawful custody; but if taken on a void judgment, it is otherwise; and consequently in the latter case there could be no escape in law, in the former there could (h). Note, where a Court in which judgment is obtained has cognizance of the same, the judgment is only erroneous; but if the Court has no jurisdiction, it is void (i). (a) Bonner and Stokeley's case, Cro. Eliz. 652; Cook v. Champneys, Fitz. 265. (b) Lewis v. Morland, 2 Barn. & Ad. 63; vide 3 Tyrw. 356. (c) Duffy v. White, 1 Alcock & Napier, 1. (d) 7 B. & Cr. 86. (e) 8 B. & Cr. 130. (f) Vin, Abr. Esc. A.; see also Cro. Eliz. 877; 11 Mod. 50; Hob. 202. (g) Piggott v. Wilkes, 3 B. & A. 502. (h) Gold v. Strode, Carth. 148; Burton v. Eyre, Cro. Jac. 289; Shirley v. Wright, Salk. 700; Bush's case, Cro. Eliz. 188; Martyn v. Hendeyc, Sty. 232; Bull. N. P. 65. (i) Ibid. |