Farebrother and Another v Worsley and Others, Executors of Hirst, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1541
EXCH. OF PLEAS.
S. C. 1 Tyr. 424; 9 L. J. Ex. (O. S.) 166. Reported on another point, 5 Car. & P. 102.
farebrother and another v. wobsley and others, Executors of Hirst, Deceased. Exeh. of Pleas. 1831.-Where a Sheriff s bailiff, in the deed appointing him bailiff, covenanted (inter alia) to pay the Sheriff the coats and charges of defending any action, or of prosecuting or opposing any motion, &c., touching or concerning any matter wherein the bailiff should act, or assume to act as bailiff, to the said Sheriff; and afterwards, in the same deed, covenanted to indemnify, &c., the Sheriff, against all actions, costs, &c., &c., which might be commenced, &c., or which he might suffer, pay, or be liable to, for or by reason of the executing, not executing, returning, or not returning, or mis-return of any writ, process, mandate, precept, or warrant, occasioned by the act or default of the said bailiff:-Held, that the covenant was not confined to the wrongful act of the bailiff, but, that it extended to protect the Sheriff from the costs, &c., which he had incurred, from an action, &c., having been prosecuted against him, in consequence of a return made by him to a writ, on instructions for the return given by the bailiff, though those instructions were correct and proper. [S. C. 1 Tyr. 424; 9 L. J. Ex. (O. S.) 166. Reported on another point, 5 Car. & P. 102.] Covenant by the Sheriff of Middlesex, against the executors of a deceased surety of a bailiff. The declaration set out an indenture, dated the 28th September, 1826, between the plaintiffs, as Sheriff of Middlesex, of the one part; and Joshua Hirst, the younger, Worsley the defendant, J. N., D. R., R. T., VV. C., and J. Hirst, the elder, since deceased, of the other part; by which the [550] plaintiffs, at the instance and request of the said J. H. the younger, and in consideration of the covenant and agreement thereinafter entered into, &c., did nominate and appoint the said J. H. the younger, to be one of the bailiffs of the said Sheriff (during the pleasure of the said Sheriff), permitting him to receive to his own use all lawful fees usually received by Sheriff's bailiffs in the said county of Middlesex, but reserving to the said Sheriff the poundage and such other fees and profits on writs of execution and extent as had been usually received by the Sheriff of the said county of Middlesex, and all such other fees and emoluments to the said Sheriff belonging; and, in consideration of the premises, the said J. H. the younger, &c., &c., (the said parties of the second part), for themselves jointly and severally, and for their several and respective heirs, executors, &c., did, and each of them did covenant, &c., to and with the said plaintiffs and each of them ;- That the said bailiff should duly execute all warrants or mandates to him directed by the said Sheriff, his under-sheriff or deputies, or any of them, in the name of the said Sheriff; That the said bailiff should give regular instructions in writing, for the return of all writs qr process, in all cases in which warrants should have been executed by or directed tj) the said bailiff; j That the said bailiff should and would forthwith pay to the said Sheriff, ynder-! sheriff, or:deputiea, all monies received by the said bailiff on any arrest or levy by him made, or with which he should be entrusted for the said Sheriff, without deduction; That the said bailiff should, in all things, truly, lawfully, and honestly demean and behave himself, as bailiff as aforesaid, and in due and lawful manner all and every the lawful commands or directions of the said Sheriff, his under-sheriff, and their deputies, touching any manner of service [551] incident or belonging to the said office of Sheriff, should and would execute and perform; That the said bailiff should and would well and truly pay to the said Sheriff, his (a) In Michaelmas Term, Price made a similar application, as a motion of course, which wa$ granted; but the Court having subsequently ascertained the nature of the motion, stayed the rule, and directed the application to be renewed at the sittings after the term. 1542 FAREBROTHER V. WORSLEY 1C-4J.5J2. under-sheriff, or deputies, or one of them, the costs and charges of defending any action, and of prosecuting or opposing any motion in or application to the Court, touching or concerning any matter wherein the said bailiff should act, or assume to act, as bailiff to the said Sheriff; That the said bailiff and his sureties, some or one of them, should indemnify the said Sheriff and his under-sheriff, or deputies, from all damages, loss, costs, and charges, which they, or either of them, should or might suffer, sustain, or be put unto, or be liable to suffer, sustain, or be put unto, for or by reason of the payment of any money by the said Sheriff, under-sheriff, or deputies, to any person or persons; or by reason of any return to any writ or process made by the said Sheriff, under-aheriff, or deputies, at the request of the said bailiff; And that the said bailiff and his said sureties, some or one of them, their, or some or one of their heirs, executors, or administrators, should and would save harmless and indemnify the said Sheriff and under-sheriff from and against all actions, suits, fines, atnerciaments, penalties, contempts, forfeitures, loss, costs, charges, and expenses, which might be commenced, prosecuted, imposed, or set upon them, or either of them, or which they, or any or either of them might suffer, pay, or be liable unto, for or by reason of the executing, riot executing, returning, or not returning, or mis-return of any writ, process, mandate, precept, or warrant, occasioned by the act or...
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