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It has been holden, that an action upon the case will lie agninst a sheriff for taking insufficient pledges, and that without any previous sci. fa. against the pledges. Prowse v. Pattison, H. 13 Geo. 2. (a)

In such action against the sheriff, some evidence must be given by the plaintiff of the insufficiency of the pledges or suraties; but very slight evidence is sufficient to throw the proof on the sheriff: For the sureties are known to him, and he is to take care that they are sufficient.--Saunders v. Darling & al. Sittingg at Westminster, C. B. T. 10 Geo. 3.

In replevin, both plaintiff and defendant are actors, therefore either party may carry down the cause ; and if the defendant give notice, and do not go on to trial, the court will give costs against him; for the same reason, the defendant may not move for judgment of nonsuit, unless the plaintiff have given notice of trial.- Eggleton v. Smart, T. 2 Geo. 3, 1 Bla. 375. (b)

(61)

A defendant in replevin, being en- plaintiff did not appear at the assizes; titled to an assignment of the bond, defendant therefore brought down if the plaintiff do not appear in the

the record; and his counsel insisting county court, and prosecute, fc. ac, strongly on a verdict, Baron Reynolds cording to the condition, he may complied, but on motion by plaintiff sue thereon as assignee of the sheriff to set it aside, the court, after hearin the superior courts, though the ing the judge's report, ordered the replevin be not removed out of the postea to be amended, and a nonsuit county court. Dias v. Freeman, sup. to be returned instead of a verdict in note (a).

for defendant, and that defendant (a) If the sheriff neglect to take should pay the costs of the motion, a replevin bond, the court will not Plaintiff, obtaining judgment in grant an attachment against him, replevin, was not entitled to costs but leave the party to his remedy at common law; but by the statute by action, in which action the party of Gloucester (6 Ed. 1. c. 1. s. 2.) can only recover double the value the plaintiff is entitled to costs in of the goods distrained. Twells v. all cases where he was entitled to Colville, Willes, 375. R. v. Lewis, damages before that statute, there2 T. Rep. 617.

fore be shall now have his costs in In an action, however, against replevin. Tidd's Pra. 863. (2d ed.) the sheriff for taking insufficient

Where there were several defendpledges, the court of Č. B. will notants, and one pleaded non cepit, and order him to pay the costs recovered was acquitted, in which čase (under by the defendant in replevin, but stat, 8 & 9 W. 3. c. 11.) he would the defendant has a more summary have been entitled to costs in tresmode against the sheriff, the under pass, if the judge did not certify sherjff, and the replevin clerk, by there was good ground to make hiin motion, as in Richards v. Acton, 2 a defendant; yet in replevin he can. Bla. 1220. Vide etiam ante, p. 52. not have his costs, for replevin iş n. (b).

not mentioned in the statute, and ro) Vide etiam Jones v. Concan- the statutes giving costs are to be non, 3 T. Rep. 661. Shortridge v. strictly construed. Ingle v. WordsHiern, 5 T. Rep. 400. In Hicks v. worth, 3 Burr, 1284. Young, 2 Barnes, 371, in replovin,

CHAPTER

CHAPTER V.

OR RESCOUS.

Rescous is twofold, and is applicable,

1. To goods and chattels distrained.

2. To a person arrested, 1. RESCOUS (in its first sense) is where the owner, or other person; takes away by force a thing distrained from the person distraining, (a) but the person must be actually in possession of the thing, or else it is po rescous; as if a man come to make a distress, and he be disturbed to do it; but the party may bring an action on the case for this disturbance.-F. N. B. 102.

The plaintiff ought to count for what rent or services he took the distress, and the defendant may traverse the tenure. Ib. 230.

If a man send his servant to distrain for rent, &c. and rescous be made, the master shall have the writ, (b) and he may join in the writ for the assault and battery of the servant.-Co. Litt. 47. 160.

If a distress be taken without cause, as where no rent is due, one may make rescous before the cattle is impounded. So if the owner tender the rent before the distress taken,

If a man distrain 40 sheep of Als, and as many of B.'s, damagefeasant, A. cannot by reason of the right of common in the place where, and that he could not separate his sheep from B.'s, justify rescuing B.'s sheep with his own, (Jennings v. Plaistow, E. 1620. Cro. Jac. 468. Co. Litt. 161.) N. B. The beasts must be damage-feasant at the time of the distress, and if they were damage-feasant yesterday, and again to-day, they can only be distrained for the damage they are then doing. (Vuspor v. Edward, M. 13 W. III. 12 Mod. 660.) But by 11 Geo. 2. c. 19. If the lessee fraudulently convey * lis goods [*62 ] from the premises, the lessor may within thirty days seize them as a distress, wherever found.

If the defendant plead not guilty, (which is the general issue) he caunot give in evidence non-tenure of the plaintiff who distrained for sent, but he ought to plead it.- Heath's Maxim, 76.

But this action is rarely brought now-a-days, but a special action upon the case, in which non-tenure might be given in evidence on the

(a) Vide 1 Inst. 160.

(6) Vide F. N. B. 101,

general

general issue.- Note; by 2 IV. & M. c. 5. s. 4. the plaintiff shall recover treble damages, if the distress be for rent, in such action upon the case for an unlawful rescous. (a)

2. Rescous in its second sense) may be made of any one taken up on legal process, and for such rescous the plaintiff may bring an action of rescous, or an action on the case against the rescuers. (b) To support his action, it will be necessary for him to prove, 1. The origioal cause of action. 2. The writ and warrant; which must be by producing sworn copies. 3. The arrest, to shew it legal. 4. In point of damage, it is expedient to prove that the person arrested became insolvent, or not to be found; but this is not necessary, for the defendant being guilty of violence against the process of the law shall have no favour. (Wilson v. Geary, T. 3 Ann. 6 Mod. 211.) However be may give in evidence, in mitigation of damages, the ability of the person arrested, or that he is still amenable to justice; yet if the jury give the whole debt in damages, the court will not grant a new trial.-Kent v. Kelway, 7 Jac. l. Jenk. 311. pl. 93.

The person rescued may be a witness for the defendant, and though be be particeps criminis, if the defendant be guilty, yet it shall only go to his credit.-Wilson v. Geary, sup. (c)

Note; That bare words will not make an arrest, but if the bailiff touch the person, it is an arrest, and the retreat a rescous. (Genner v. Sparkes, T. 1704. Salk. 79.) On a motion for an attachment against three persons for a rescous of a person taken in execution, it was ob jected that there had not been a legal arrest, as the bailiff had never touched the defendant--per curiam, this is a good arrest; and if the

(a) And the word " treble" in must shew, that defendant was at this statute has been construed to large, or in improper custody after refer to the costs as well as the da- the return of the writ, and that no mages. Lawson v. Story, Ld. Raym. bail was put in whereby the plaintiff 19. Salk. 205.

was injured. Atkinson v. Natteson, (b) Which latter remedy is now 2 T. Rep. 172; for where a sheriff's most usually adopted, the former officer kept the defendant after the having grown out of use.

return of the writ, and then took (c) Vide etiam Anon. 1 Vent. him to prison, so that the plaintiff 306.

was not delayed, it was held, that In Hawkins v. Plomer, 2 Bla. this action would not lie. Plank v. 1048, it was held, that if the sheriff Anderson, 5 T. Rep. 37; and indeed return cepi corpus, and the ground it is for permitting the defendant to of complaint be, that the defendant be at large without a bail bond, was not forthcoming at the return that this action is most commonly of the writ, the plaintiff must prove brought; in which case the court his debt, and the writ, and return, will not stay proceedings on the debut not the caption, that being fendant's putting in bail. Fuller v, admitted by the return. Next he Prest, 7 T. Rep. 109.

bailiff

bailiff who has a process against one, says to him when he is on horseback, or in a coach,“ you are my prisoner, I have a writ against you,” upon which he submits, turns back or goes with him, though the bailiff bever touched him, yet it is an arrest, because he submitted to the process : but if instead of going with the bailiff, he had gone or fled from him, it could be no arrest unless the bailiff had laid hold of him.Homer v. Battyn & al. B. R. H. 12 Geo. 2.

By 29 Car. II. c. 7. s. 6. An arrest may be made on a Sunday for [ 63 ] treason, felony, or breach of the peace; but in other cases, an arrest on a Sunday is void, (a) insomuch that the party may have an action of false imprisonment: (Wilson v. Tucker, T. 1695. Salk. 78.) But a person may be re-taken on a Sunday, when arrested the day before. (b) So bail may take their prisoner on a Sunday, and render him on the Text day. (c)

Chief Justice Holt doubted whether an arrest made by a bailiff's servant would be lawful, even though in the presence of a bailiff; and where the bailiff sent his follower up stairs to arrest a man who was rescued by the defendant, reserved the case for his opinion. But howe soever such a case might be determined, yet it would certainly not be good, if the bailiff were not quodam modo in his company.-Wilson Geary, sup. (d)

It is not necessary to shew the warrant, or to tell at whose suit you “arrest him, unless he demand it: And if you have two warrants in your

..(a) As this act directs that the attachment on non-payment of moexecution of every process on the ncy due on the master's allocatur. Lord's day shall be void to all in- NI'Ileham v. Smith, 8 T. Rep. 86. tents and purposes, the regularity Nor after a voluntary escape. Al. or irregularity of any proceedings kinson v, Jameson, 5 T. Rep. 25. cannot depend on the subsequent which recognized Featherstone v. assent of the party to waive any ob- Atkinson, Barnes, 373, in which jection to such proceedings. Tay- . case the distinction between a volor v. Philips, 3 East, 155. , luntary and a negligent escape was

r) For he was in the custody of taken, the law by the first arrest, and it is Nor for non-payment of a pean original arrest on a Sunday ouly nalty by defendant, who has been that this statute prohibits. Parker convicted on a penal statute. Rex v. Moor, Salk. 626. So on an escape v. Myers, 1 T, Rep. 265. warrant; a man may be arrested on And where defendant was arrested a Sunday, for that is in nature of a on a Sunday by a writ out of the fresh pursuit, and not an original Marshalsea, the court of King's Bench proceeding and commitment, but refused to discharge him, saying the old commitment continued. S.C. he must bring an action for false Lol. Raym. 1028. 6 Mod. 95. imprisonment. Wilson v. Guttery,

(c) So may a man be taken on a 5 Mod. 95. Sunday, upon an attachment for a (d) But it will be suificient if he Tescue. Anon. Willes, 459.

be near and acting in the arrest, But not on a rule nisi for an Blatch v. Archer, Cowp. 65.

pockets

pockets against him and produce neither, if he be rescued, either party at whose suit the warrants were made out may bring an action against the rescuers.--Hodges v. Marks, T. 1619. Cro. Jac. 485. (a)

If the party rescued were taken upon process of execution, the sheriff may maintain an action against the rescuers, because he is liable to an action of escape; for he cannot return a rescous as he may upon mesne process. (May v. Proby, H. 1617. Cro. Jac. 419.) But if the prisoner had been once in gaol upon mesne process, the sheriff ought at his peril to keep him, and a rescous from thence is no excuse for him, neither is it an excuse wbere the sheriff is bringing him up by habeas corpus ; (May v. London Sheriffs, H. 1617. i Rol. Rep. 440.) and consequently in such case likewise, he may have an action against the rescuers.--Crompton v. Ward, E. 1721. 1 Stra. 434. (6)

In

cess.

(a) A bailiff sworn, and commonly Cro. Eliz. 873, that the sheriff shall known to be such, need not shew his be excused in all cases of mesne prowarrant, though the party demands So where he is sued for an it. Mackalley's Ca. 9 Co. 68, 69. escape on mesne process, if he plead 2 Hawk. P. C. 85. If an action is a rescue he is not bound to shew that laid in one of the compters in Lon- the rescue was returned. Gorges don, a city serjeant may arrest the v. Gore, 3 Lev. 46. party without the sheriff's warrant. An escapo occasioned by fire, or i Lill. Abr. 94. And by the custom by the king's enemies, will excuse of London, a debtor may be arrested the sheriff, but not where the prison before the debt has become due, is broke by rebels or traitors, for to make him find sureties, but not against them he may raise the posse by the common law. i Nels. Abr. comit. 33 Hen. VI. i. Elliot v. Nor258. A bailiff having a writ to ar- folk, 4 T. Rep. 789. rest A. B. comes up to another per- A recaption upon a fresh suit is son, and asks him if his name is also a ground of excuse for the A. B., and he answers that it is, if sheriff. Ridgway's Ca. 3 Co. 52. But the bailiff arrest him, an action will il must be before action brought. lie for the false arrest. Lane, 49. Whiting v. Reynall, Cro. Jac. 657. Sed

a warrant be to take A. for a recaption on the same day the the son of B., and the bailiff arrests the action was brought, will not do. son of D. who is the person intended, Harrey v. Reynall, W. Jones, 145. but not the party within his warrant, After a voluntary escape, gaoler it will be a false arrest. Ibid. cannot retake his prisoner, but the

(b) In May v. Proby, sup. it was plaintiff may by an escape warrant, beld, that if the sheriff arrests a man and proceed to judgment against on mesne process, and he is rescued cither the defendant or the gaoler, on going to gaol, the sheriff shall not but this is confined to a case of be liable, for though he is bound to mesne process only. Ravenscroft v. arrest a man against whom he has a Eyles, 2 Wils. 295. Key v. Briggs, writ, if he meets him, and the man Skin. 582, S. P.for all writs on mesne is pointed out to him, yet he cannot process must be returnable in the be supposed to have the posse comita- same or the next term. Shirley v. tus always with him; and on the same Wright, 2 Salk. 700. But in the principle, it was held in Clark's Case, case of an execution plaintiff may

retake

quære, if

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