Posterne against Hanson and Hooker, Sheriffs of Middlesex
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 658
COURT OF KING'S BENCH
[59] 8. posterne against hanson and hooker, sheriffs of middlesex. Trinity, 21st of Charles II. Rol. 465. S. C. 2 Keb. 607. A sheriff is bound by the statute 23 H. 6, c. 9, to let his prisoner, arrested by mesne process, at large upon reasonable sureties, and he is not subject to an action, although he returns cepi corpus. By the words in the statute, " that if the sheriff return cepi cm-pus he shall be chargeable to have the body at the day of the return " is meant only, that he may be amerced to the King for not having the body at the day. Case by Posterne plaintiff, against Hanson and Hooker, late Sheriff of Middlesex, defendants; the plaintiff declares and shews the clause in the statute 23 H. 6, c. 9, by which it is enacted, among other things, "that if the said sheriffs return upon any person eepi corpus or reddidit se, they shall be chargeable to have the bodies of the said persons at the days of the returns of the said writs, bills or warrants, in such form as they were before the making of this Act;" and further sliewa, that one Michael Drew was indebted to him in 2401. by bond, and for the recovery thereof he had sued out a bill of Middlesex out of the Court, returnable oti Tuesday next after three weeks of St. Michael, in the 18th year of the reign of the now King, by force whereof the defendants, before the return of the bill, being Sheriff of Middlesex, took and arrested the said Drew, and had him in their custody, and the defendants afterwards let the said Drew to bail and mainprize, upon security of a bond made and entered to the said defendants, then sheriff, by the said Drew, and one Allen, and one Lee, for the appearance of the said Drew, at the return of the said bill of Middlesex, whereas in truth the said Allen and Lee were not reasonable sureties, nor had sufficient estates in the said county of Middlesex, nor did the said Drew appear at the return of the said bill, nor found any bail to answer the action of the plaintiff, whereby the plaintiff has lost the benefit of recovering his debt, whereupon he brought his action. The defendants plead and shew all the said statute; the material clause for them, and which the plaintiff had omitted, being, " that the sheriff shall let at large his prisoners on reasonable sureties of sufficient persons having sufficient within the county;" arid then they shew that the plaintiff sued out the said bill of Middlesex, which he delivered to them, being Sheriff of Middlesex, and that they by force thereof had arrested the said Drew, and had him in their custody : but they further shew, that they let him at large upon the security of the said bond (3) of the said Allen and Lee, then having (3) This statute consists of two branches; the first is as to the persons to be let to bail; with respect to whom it is enacted, " that sheriffs, &c. shall let out of prison all manner of persons by them arrested, or being in their custody, by force of any writ, bill, or warrant, in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons having sufficient within the counties where such persons be so let to bail or mainprise, to keep their days (c) in such place (c) [This statute was not repealed by the Uniformity of Process Act, which provides (as doea the stat. 1 Viet. c. 110, under which the capias must now issue) that the defendant, within eight days after the execution of the writ, inclusive of the day of such execution, shall cause special bail to be put in. And the provisions of the stat. H. 6 are now applicable to the keeping of the day by ao putting in bail. 2 Cr. & M. 490, Evans v. Mosely. 4 Tyrw. 169, S. C.] 2 WMS, BAUNB. 89. HIL. 21 AND 22 OAR. II. REGIS 65i) sufficient within the aaid county of Middlesex, to wit, at Westminster within the said county ; whereupon they returned cepi corpus at the return of the said bill of Middlesex, as according to law and practice they ought: and there are several other as the said writs, bills, or warrants shall require persons being in their ward by condemnation, execution, fapias utlagatum, or exmmmunicatum, surety of peace, or by special commandment of any justice, and vagabonds refusing to serve according to the Statute of Labourers, only excepted ;" and the second is, as to the nature and form of the security; with regard to which it is enacted, " that no sheriff, &c. shall take any obligation for any cause aforesaid, or by colour of their office, but only to themselves of any person, nor by any person, who shall be in their ward by course of law, but by the name, of their office, and upon condition written, that the prisoners shall appear at the day and place contained in the writ, bill, or warrant; and if any sheriff, &c. take any obligation in other form, by colour of their office, it shall be void." Upon the first branch of the statute, it was determined in the Court of King's Bench, 4 T. R. 505, Een.gcn.igh v. Mossiter, and the determination afterwards affirmed in error in the Exchequer Chamber by all the Judges of that Court, except Eyre C.J., 2 H. Black. 418, that the sheriff has no authority to take a bond for the appearance of persons arrested by him under process issuing upon an indictment at the Quarter Sessions for a misdemeanor; but only a recognisance for their appearance. It has also been resolved by all the Judges (contrary to what had been determined before in the Court of K. B. 1 Ld. Raym. 722, Bex v. Dawes. S. C. 2 Salk. 608,) that the sheriff cannot take bail on an attachment for a contempt, though a Judge at his chambers may ; 1 Str. 479, Anon. S. P. Com. Rep. 264, Field v. Workhouse ; nor on an attachment out of Chancery, for the statute refers only to process in Courts of Common Law. 1 H. Black. 468, Studil v. Acton.(d) But the defendant to a declaration on such a bail-hond, after setting out the condition on oyer, by which it appears to have been taken on an attachment for a contempt, must not demur; for if he do, the Court will not presume the sheriff had not any authority to take bail; but must plead the statute 23 H. 6, and state those facts of the case which will bring the question before the Court. 2 Vent. 234-238, Lawsc-n v. Huddock. Com. Rep. 264, Field v. Worklume. 2 Black. Rep. 935, Say v. Ellis.(e) ( l) In 6 Taunt. 569, Mams v. Hayward. 2 Marsh. 280, S. C., the Court of C. B. held, after taking time to consider, that bail-bonds on an attachment out of Chancery " are neither compellable to be taken by the statute 23 H. 6, nor prohibited by the statute; but that they are good at common law ; and that whether a bail-bond shall be taken or not, is in the discretion of the sheriff, as regulated by the practice of that Court." [Such a bond, however, is not assignable under the stat. 4 Ann. c. 16, s. 20. 4 B. & Ad. 146, Meller v. Palfreyman. See 6 Price, 32, Bird-wood v. Hart.] With respect to an attachment for non-payment of costs, the Court of Exchequer in a subsequent ease, 4 Price, 23, Philips v. Barrett, held, that the sheriff cannot take a bail-bond, on the ground that the process is in the nature of an execution. This latter case, and the ground of it has, however, been subsequently considered in K. B., 2 B. & A. 56, Lewis v. Norland, which was an action against the sheriff for the escape of a person arrested on an attachment for non-payment of costs, and who was let out of custody, but returned before the return-day of the writ; there the Court held that the action would not lie, for the attachment is plainly in the nature of mesne process and not of an execution, inasmuch as its object is to bring the defendant into Court to answer, not to satisfy the plaintiff; and Bayley J., speaking of Morris v. Hayward, says, " that case was decided upon great consideration, and is at variance with the subsequent case of Phelips v. Barrett, the foundation of which was, that an attachment is a process in the nature of execution. But for the reasons I have already given, it seems to me, that an attachment is in the nature of mesne process, and that the principle on which that decision took place cannot be supported." () These decisions seem to have proceeded on the mistaken ground that the stat. 23 H. 6, is a Private Act; but since it has been determined that it is a Public Act (post, 155, note), it seems clear that the defendant, after oyer of the bond and condition, in any case to which the statute applies, may demur or plead the necessary GlJO POSTEENE V. HANSON AND HOOKER Z WMB. SAUND. 60. averments not very material, and so conclude their [60] plea in bar of the action : to which plea the plaintiff demurs in law. And it was argued for the plaintiff, that the action might well be maintained It is held not to be necessary, in an action upon a bail-bond, to state that the defendant in the original action was arrested, and if stated, it is not traversable; for the words of the statute 4 Ann. c. 16, s. 20, viz, "and the sheriff taketh bail from such person against whom such writ, bill, or process is taken out," are general enough to include the case where the party has not been arrested; and besides it would be attended with mischievous consequence to set aside bail-bonds taken civilly without exposing the party to an arrest. 1 Str. 444, IPatkins v. Parry. .Hid. 643, Haley v. Fitzgerald.(f) The nature and form of the security required by the second branch of the statute, is by bond; therefore an agreement in writing, made by a third person with the bailiff of the sheriff, to put in good bail, for a person arrested on mesne process, on or before the return of the writ, or to surrender the body to the bailiff, or on default thereof to pay debt and costs, in consideration of his discharging the party arrested, is held to be void.(gr) Indeed, if the security had been by bond it would be void, because it has been adjudged that the...
To continue reading
Request your trial