J. K. Hooper and J. Pilcher, - Plaintiffs in Error; J. Lane, Jane Sigel, and C. E. Newcombe, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 28 August 1857 |
| Date | 28 August 1857 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1368
House of Lords
Mews' Dig. i. 363, 461; xi. 602; xii. 1131, 1133, 1179; xiii. 1973. S.C. 27, L.J. Q.B. 75; 3 Jur. N.S. 1026; 6 W.R. 146; and below, 10 Q.B. 546. On point as to arrest under several writs, considered and followed in Ockford v. Freston, 1861, 6 H. and N. 466; and cf. Bateman v. Freston, 1860, 30 L.J. Q.B. 133; and Ex parte Freston, 1861, 30 L.J. Ch. 460; on point as to rule against taking advantage of one's own wrong, cited with approval in In re London Celluloid Co., 1888, 39 Ch. D. 206.
Sheriff - Arrest - Writ valid and invalid - Detainer - Entry of Judgment - Interest.
J. K. HOOPER and J. PILCHER,-Plaintiffs in Error; J. LANE, JANE SIGEL, and C. E. NEWCOMBE,-Defendants in Error [June 24, 26, 1856; July 2, August 28, 1857]. [Mews' Dig. i. 363, 461; xi. 602; xii. 1131, 1133, 1179; xiii. 1973. S.C. 27, L.J. Q.B. 75; 3 Jur. N.S. 1026; 6 W.R. 146; and below, 10 Q.B. 546. On point as to arrest under several writs, considered and followed in Ockford v. Freston, 1861, 6 H. and N. 466; and cf. Bateman v. Freston, 1860, 30 L.J. Q.B. 133 ; and Ex parte Freston, 1861, 30 L.J. Ch. 460; on point as to rule against taking advantage of one's own wrong, cited with approval in In re London Celluloid Co., 1888, 39 Ch. D. 206.] Sheriff-Arrest-Writ valid and invalid-Detainer-Entry of Judgment-Interest. Although the sheriff is an agent for those who put writs into his hands to execute, he is also a public functionary, having, at the same time, duties to perform towards those against whom such writs are directed. If the sheriff having two writs in his hands, one valid the other invalid, arrests on both at the same time, he may rely on the valid writ, and treat as detainers any number of valid writs which he may then have, or which may afterwards come to his hands. But if, having two such writs, he arrests on the invalid writ alone, he cannot afterwards justify the arrest by the good writ. Nor can he while a person is unlawfully in his custody, by virtue of an arrest on an invalid writ, arrest that person on a good writ. To peranit him to do so would be to allow him to take advantage of his own wrong. H., a sheriff, had in his office a valid writ against B., at the suit of one L., but had not himself granted any warrant upon it. H. had also in his hands a writ against B., at the suit of A., which was invalid for want of signature by the * His Lordship afterwards favoured the Reporter with a note to say, that in delivering his own opinion he had accidentally omitted to state that Lord Brougham, who had heard the case argued, entirely concurred with the judgment now delivered. 1368 HOOPER V. LANE [1857] VI H.L.C., 444 proper officer of the Exchequer, the Court out of which it issued. H. had granted a warrant on this writ, and H.'s bailiff arrested B. upon it. B. went before a Judge, claiming to be discharged. The bailiff opposed this application, and, having then obtained a warrant on L.'s writ, also claimed to detain B. on that writ. The Judge discharged B., who then left the country. In an action by L. against, H. for neglect, the Judge told the jury that it was a question of fact whether H. had been guilty of culpable neglect in arresting upon A.'s invalid writ; and that if H. knew, or by reasonable care might have discovered that A.'s writ was void, it was culpable negligence : Held, affirming the judgment of the Court below, that, this direction was right. A declaration contained two breaches. The Defendant pleaded Not guilty on the first breach, which involved the whole cause of action. The finding was for the Plaintiff, and the damages were [444] assessed thereon, and judgment was entered up on that finding. On the second breach there was a finding of Not guilty. No entry of eat sine die was made on this finding: Held, that there should have been such an entry; but that this House had power to amend the record, by directing such an entry to be made? Qu. Whether where a judgment of the Court below is affirmed on error, and interest is asked for under the 3 and 4 Will. 4, c. 42, this House need make the order for interest, or may leave the party to apply for it in the Court below? Case against the Defendants below, as Sheriff of Middlesex, for breach of duty, in not arresting one Anthony Bacon, against whom the Plaintiffs below had lodged a ca-pias ad xatisfaciendum. The declaration, after alleging that the Defendants were sheriff of Middlesex, that the writ of the Plaintiffs was delivered to them, that Bacon for a certain time afterwards was within their bailiwick, and that they at any time during that period might have arrested him under it if they would so have done, stated as a first breach, that the defendants, not regarding, etc., did not nor would at any, etc., although often requested so to do, and although a reasonable time had elapsed for them so to do, take Bacon under the writ, but made default; and, as a second breach, that the Defendants afterwards wrongfully and illegally took Bacon under the false and illegal pretence of another writ, whereas there never was any such writ, and wrongfully detained him until he was discharged by an order of Mr. Justice Coltman, wrhereby, whilst they so wrongfully imprisoned him, and for a reasonable time after his discharge, they could not arrest or detain him under the Plaintiffs' writ, but were obliged to permit him to depart from their custody, and he left their bailiwick. The Defendants pleaded, First,-Not guilty as to the whole declaration. Secondly, that Bacon was not within their bailiwick as alleged. Thirdly, that they could not [445] have arrested him as alleged. Fourthly, as to so much of the declaration as related to the first breach, that they were not, at the time of the delivery of the writ, Sheriff of Middlesex. Fifthly, as to the same breach, that the writ was not delivered to them in manner and form, etc. Sixthly, as to the second breach, the Defendants said, first, that they were not, during the time alleged, sheriff, etc. Seventhly, as to the said second breach, that they did not take Bacon under a false and illegal pretence of a writ; and, eighthly, that there was a writ of capias, at the suit of one Arambura, under which the Defendants took Bacon, specially traversing the Plaintiffs' allegation that there never was any such writ. The Plaintiffs took issue on all these pleas.. There were two other pleas, which were demurred to, on which judgment was given for the Plaintiffs. The cause was first tried before Lord Denman on May 12th, 1845, when a verdict was found for the Plaintiffs below on all the issues of fact. The facts proved in evidence were, that the Plaintiffs below delivered their writ of ca. sa. for 323 3s. 4d. debt, and 3 10s. damages and costs, against Anthony Bacon, to the then Sheriff of Middlesex on May 20th, 1842, and this was, delivered over, by their predecessors, to the Defendants below on their coming into office at the end of that year. That a, warrant was issued by their predecessors on this writ, but, no new warrant was granted by the Defendants until after Bacon was in custody as hereinafter mentioned. That on August 1st, 1843, a piece of parchment purporting to be a capias ad respondendum against Bacon at the suit of one Juan 1369 VI H.L.C., 446 HOOPER V. LANE [1857] Arambura out of the Court of Exchequer of Pleas (which was a nullity), was delivered to the Defendants, and information was given to them as to where he was to be found. They thereupon issued their warrant on that piece of parchment to their [446] officer Swayne, who immediately arrested him.* A summons was taken out by Bacon for his discharge from this arrest, on the ground that the writ was a nullity. The Defendants did not attend the summons, and Bacon was directed by Mr. Justice Coltman to be discharged; a warrant having in the interval been made out by the Defendants, under the Plaintiffs' writ, the sheriff claimed a right to detain Bacc.ii under the warrant. Another summons was taken out by Bacon for his discharge in the Plaintiffs' suit. No notice was given to them of this summons; and on an objection being raised by the Defendants, who did attend it, that the Plaintiffs ought to have been summoned, Mr. Justice Coltman said there was no necessity for this, as it was the wrongful act of the sheriff which was complained of, and ordered his discharge. Evidence was given that Bacon could and would have paid the Plaintiffs, had he been arrested under their writ. Immediately after this his second discharge he left this country. Lord Denman directed the j ury that under these circumstances there had been 110 valid arrest of Bacon at the suit of the Plaintiffs below; that the order of Mr. Justice Coltman was no justification to the sheriff, and that if the jurors believed the above facts the Defendants were liable for negligence, and had been guilty of negligence in point of law, and that the only question was the amount of [447] damages, if, in point of fact, the Defendants had been guilty of negligence. To all these directions the Defendants tendered a bill of exceptions, which came on for argument before the Court of Exchequer Chamber; and on May 13th, 1848, judgment was given (10 Q.B. Kep. 546), by which it was ordered that the verdict should be set aside and a venire de novo awarded, on the ground that on the issue of not guilty as applied to the second breach, the Judge ought to have left to the jury the question of negligence whether the Defendants below knew or ought, if they had used reasonable care, to have known of the defect in Arambura's writ. As to the rest the direction was held to be correct. The Court also suggested the expediency of assessing the damages on the two breaches separately, expressing some doubt as to the sufficiency of the mode in which the second breach was framed. The cause...
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