Ch. XV. f. 1. Action for Extortion. the face of his return, the warrant is unnecessary. (c) The same evidence should be given in the action against the bailiff. One of the offences enumerated in the latter Act of Parliament, is taking more than by law is allowed for waiting till bail is given, for which a penalty of fifty pounds is inflicted; but it has been Jaques v. holden, that no action can be maintained for this offence, without proving a regular table of fees, settled in pursuance of that Act, which, I believe, has never yet been done. Whitcomb, 1. Esp. Cas. 361. False Return of Mesne Process. For False Returns on Mesne Process the declaration generally states the plaintiff's cause of action; that a writ issued and was delivered to the defendant, and that the defendant either did take the debtor, and afterwards permitted him to escape, or else that he might have taken him, but did not, and returned non est inventus. In this case, therefore, the first evidence will be the plaintiff's cause of action, Alexander next the writ and return, (d) by an examined v. M'Cauley, 4 T. copy of the original, filed of record, which is Rep. 611. (c) If the judgment be stated in the declaration he must also prove that. Savage v. Smith, z Blac. 1101. (d) In Cribb v. Herne and another, 1 Bos. & P. 292. where the declaration for an escape on mesne process, alledged that the writ was indorsed for bail, by virtue of an affidavit, &c. the Court held, that the affidavit should be proved, and that the production or proof of the writ, whereon the sum was indorsed, was not sufficient proof of this substantive allegation. But if it had only said, indorsed for bail for so much, then it would not have been necessary; and, in the other case, an examined copy would be sufficient. Vide Bul. N. P. 14. Part II. False Re turn of Mesne Blatch v. sufficient evidence of the writ itself, and of its delivery to the sheriff; then, the warrant to the officer, in the same manner as in the former Process instance; and, lastly, either that the defendant was once in the custody of the bailiff, or of his follower in his presence, and escaped from him; or else that notice was given to the sheriff, under-sheriff, or bailiff, where the defendant was, and that he might have been arrested had the officer thought proper to have taken him. In order to shew the amount of the damages which he has sustained, the plaintiff should also prove the circumstances of the defendant at the time of the arrest, and that he has since absconded, or become insolvent, for Tempest if the defendant was originally in bad circumClayt. 34 stances, or he may be met with every day, and the plaintiff has not in fact been injured by this negligence of the defendant, the damages will be merely nominal. v. Linley, Pirote on If the sheriff make a return of cepi corpus, and the ground of complaint be that he had not the defendant forthcoming at the return of the writ, the plaintiff must prove his debt, the writ and return, which, admitting the caption, renders the warrant unnecessary. He must then prove that the defendant was at large, or Vide At- in improper custody after the return of the Matteson, writ, that no bail above was put in, and that 2 T. Rep. by these circumstances he has been injured; for where a sheriff's officer kept a defendant in son, 5 T. his custody some time after the return of the 2 Blac. 1048. kinson v. 172. Plant V. Ander Rep. 37. f. 1. Escape on writ, and then took him to prison, yet as the Ch. XV. plaintiff was not, in fact, delayed or injured, the action was held not to be maintainable. This action is generally brought where the defendant has been permitted to go at large without a bail bond, and the Court will not, in such a case, stay the proceedings upon the defendant putting in bail. Fuller v. Prest, 7 T. Rep. 109. In an action for a false return of the writ Action for of Fieri Facias, the plaintiff must prove exa False Re turn of mined copies of the judgment, writ, and return, FieriFacias. and give evidence of the warrant, as in other cases. He must then prove, that the debtor had goods within the county, and that due notice was given to the defendant, or his bailiff, of them. If the property of the goods is alledged to be in a third person, and the sheriff be indemnified by him to return nulla bona, the plaintiff must also be prepared to prove the property to be in the original defendant, by shewing acts of ownership by him, or other conduct inconsistent with the claim which is set up. 320. I Ld. In general the goods of the debtor are bound Smallfrom the time of delivering the writ to the she- comb v. Buckingriff; but if the plaintiff, or his attorney, give ham, Salk. directions to the sheriff not to levy till a future Řaym.251. day, and in the mean time another writ be de- S. C. livered to the sheriff, the plaintiff loses his priority; and the sheriff should levy on the second writ. In this case, therefore, the sheriff may return nulla bona on the first writ, and support CC 3 Bradley v. Wynd- ham, I v. Peake's his N. P. 65 Action for False Re turn of FieriFacias. Burr. 20. Part II. his return by proving the fact. So if a trader has committed an act of bankruptcy before the writ was delivered to the sheriff, or being in prison for debt at the time, remain there so Cooper v. long afterwards as to make up two months, Chitty, I and a commission issue against him, this by Chippen relation devests him of all property from the Brigden, first, and the sheriff must not proceed to sell, though he had in fact levied the goods. Here also the sheriff must return nulla bona, and give evidence of the different facts necessary to support the commission, viz. the trading act of bankruptcy, &c. dale v. Bul. N. P. 41. Action for one in Execution. Where the action is brought against a sheriff' for the escape of one in execution, the plaintiff may declare in debt; and if the sheriff, having returned cepi corpus, afterwards permitted the defendant to escape, the plaintiff must prove copies of the judgment, writ, and return. But if the escape were from the bailiff before the return, and the writ remain unreturned in the sheriff's hands, the writ itself may be produced. The Blatch v. plaintiff' should also in this case prove the warCowp. 63. rant, to shew that at the time the debtor escaped Sed vide Archer, from the bailiff, he was invested with that character. If the debtor, being in the county goal, was charged with a writ of execution, by lodging it with the sheriff, it will be necessary to prove the fact of his so being in custody, at the time of the delivery of the writ; and to avoid the difficulty which might otherwise arise in this case, it is 3 & 9 W. by Stat. 8 and 9 W. III. enacted, "That if any III. c. 27. 13 person one in Execution. person or persons whatsoever, desiring to charge Ch. XV. f. I. any person with any action or execution, shall Action for desire to be informed by the Marshal of the Escape of King's Bench, or Warden of the Fleet, or their respective deputy or deputies, or by any other keeper or keepers of any other prison or prisons, whether such person be a prisoner in his custody or not, the said Marshal or Warden, or such other keeper or keepers of any other prison or prisons, shall give a true note in writing thereof to the person so requesting the same, or to his lawful attorney, upon demand at his office for that purpose, or, in default thereof, shall forfeit the sum of fifty pounds; and if such Marshal or Warden, or their respective deputy or deputies exercising the said office, or other keeper or keepers of any other prison or prisons, shall give a note in writing that such person is an actual prisoner in his or their custody, every such note shall be accepted and taken as a sufficient evidence that such person was at that time a prisoner in actual custody." In cases where the prisoner was in custody of a former sheriff, the assignment of the prisoners made by him to the defendant, should also be proved; for the sheriff is only chargeable with such prisoners as are assigned, unless he comes into office on the death of the old sheriff, in which case he must take notice of all prisoners in the gaol at his peril. Westby's co. 72. Case, 3 |