people themselves. And this usage of ours, at its first introduction, was perhaps founded upon some statute, not now to be found among our printed laws; first, because it is materially different from the direction of all the statutes before mentioned, which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute; and also because a statute is expressly referred to in the record, which sir Edward Coke tells us(0) he transcribed from the council-book of 3 March, 34 Hen. VI., and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him; whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Pricot, delivered the unanimous opinion of them all," that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the statute; that the person refusing was liable to no fine for disobedience, as if he had been one of the three persons chosen according to the tenor of the statute, that they would advise the king to have recourse to the three persons that were chosen according to the statute, or that some other *thrifty man be [ *408] entreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the statute in this behalf made be observed." But notwithstanding this unanimous resolution of the judges of England, thus entered in the council-book, and the statute 34 & 35 Hen. 8, c. 26, s. 61, which expressly recognises this to be the law of the land, some of our writers(p) have affirmed that the crown, by its prerogative, may name whom it pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of queen Elizabeth, when, by reason of the plague, Michaelmas term was not kept at Westminster, so that the judges could not meet there to nominate the sheriffs, whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining on the last year's list(g). And this case, thus circumstanced, is the only authority in our books for the making of these extraordinary sheriffs. It was indeed held, the reporter adds, that the queen by her prerogative might make a sheriff without the election of the judges, non obstante aliquo statuto in contrarium; but the doctrine of non obstante, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the Revolution, and abdicated Westminster hall when king James abdicated the kingdom. However, it must be acknowledged, that the practice of occasionally naming what are called pocket-sheriffs, by the sole authority of the crown, continued to the reign of George III., since which time few, if any, such compulsory instances have occurred in England (r). [ *409] *The sheriff, by virtue of several old statutes, is to continue in office no longer than one year; and yet it has been said (s) that a sheriff (0) 2 Inst. 559. (r) Before summoning the Long Parliament, Charles I. appointed seven of the leading patriots sheriffs by prerogative, in order to prevent their being returned to parliament. Sir E. Coke being returned, sat in parliament notwithstanding; and it appears now that (in England at any rate) a sheriff may be returned as member anywhere except for his own county, or for any borough therein for which he happens to be returning officer. Rogers, El. 11th ed. 218; Fortesc. c. 24, note (k), ed. 1775. See further on this subject the speech of Lord Lyndhurst in the House of Lords on moving for an inquiry into the mode of appointing sheriffs in Ire land. (Parl. Deb. xliii. p. 990.) (8) 4 Rep. 32. may be appointed durante bene placito, and so is the form of the royal writ(t), and of the present warrant of appointment superseding that writ(u). Therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the crown(x), in which last case it was usual for the successor to send a new writ to the old sheriff; but now by statute 1 Ann. st. 1, c. 8, all officers appointed by the preceding sovereign may hold their offices for six months after the demise of the crown, unless sooner displaced by the successor. We will further observe, that by statute 1 Rich. 2, c. 11, no man who has served the office of sheriff for one year, can be compelled to serve the same again within three years after(y). We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the queen's peace, as a ministerial officer of the superior courts of justice, or as the queen's bailiff. His power and duty. In his judicial capacity the sheriff formerly presided in the tourn court, where such was his authority that archbishops, bishops, abbots, priors, earls, As judge. and barons were bound to attend before him till specially exempted from doing so by the statute of Marlbridge(z) (52 Hen. 3, c. 10), since which time the sheriff's tourn gradually fell into disrepute, and its business, which was criminal, became, under the authority of 1 Edw. 4, c. 2, transferred to the quarter sessions. The sheriff's county court had *till recently juris[ *410] diction in certain civil cases where the amount claimed was not in excess of forty shillings, and though the statute 9 & 10 Vict. c. 95, took away the sheriff's small debt jurisdiction in the old county court, yet sect. 4 of that statute expressly preserved it for other purposes, and the sheriff has still to hold his court for the election of knights of the shire, whose return de facto he decides, as well as for that of coroner. In this court also proceedings are taken with a view to outlawry. Writs of inquiry, under 8 & 9 Will. 3, c. 11, to assess damages in cases where judgment has gone by default, are directed to the sheriff (a), and when this is done he has, under 3 & 4 Will. 4, c. 42, s. 16, to empannel a jury, and then sit as judge, to decide the cause, though practically these duties are always performed by the under-sheriff. As keeper of the queen's peace, both by common law and special commission, the sheriff is the first man in the county, and superior to any nobleman therein, As keeper of during his term of office(b). He may apprehend, and commit to queen's peace. prison, all persons who break the peace, or attempt to break it; and may bind any one in a recognisance to keep the peace. He may, and is bound ex officio to pursue, and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the queen's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county(c): and this summons every person above (t) Dalt. 8. (u) 3 & 4 Will. 4, c. 99. Sched. (r) Dalt. 7. (y) In the city of London a person who has once served the office of sheriff is not only exempt from serving again, but is also for ever ineligible by an act of the Common Council in 1748. See Impey on Sheriffs, 27. (2) Spel. Gloss. tit. Vicecom. (a) So were writs of trial under the statute 3 & 4 Will. 4. c. 42, s. 17, where the sum claimed did not exceed 20%., but these writs were abolished by s. 6 of 30 & 31 Vict. c. 142, an act giving increased jurisdiction to the County Courts. (b) 1 Roll. Rep. 237. fifteen years old, (the clergy and aged and decrepit persons only excepted,) is bound to attend upon warning(d), under *pain of fine and imprison[ *411] ment(e). But though the sheriff is thus the principal conservator of the peace in his county, yet by the express directions of the great charter(ƒ), he is forbidden to hold pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioner of justice should be also the judge; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office (g); for this would be equally inconsistent; he being in some respects the servant of the justices. In his ministerial capacity the sheriff is bound to execute process issuing from the courts of justice.(106) In the commencement of civil causes, where a bail (d) Lamb. Eiren. 312; Bac. Abr. tit. Sheriff (N. 2). (e) Stat. 2 Hen. 5, st. 1, c. 8. (f) John, c. 27; Hen. 3, c. 17. (106) If the process is regular on its face, and is issued by a court having jurisdiction to issue it, it is the duty of the sheriff to execute it according to its command. And he ought to do this at the earliest practicable moment, though he may take such reasonable time as the needs and circumstances of the case require. Whitney v. Battersfield, 13 Cal. 335; Chapman v. Thornburgh, 17 id. 87. If the process is regular on its face, and there is nothing in it to show a want of jurisdic tion in the court issuing it, he will be protected in its execution. Savacool v. Boughton, 5 Wend. 170; Chegaray v. Jenkins, 5 N. Y. (1 Seld.) 376; Howard v. Clark, 44 Mo. 344; Brown v. Mason, 40 Vt. 157; Chase v. Ingalls, 97 Mass. 524; Higdon v. Conway, 12 Mis. 295. But, although the process is regular on its face, yet if the court issuing it had no jurisdiction, he may refuse to execute it, and show the want of jurisdiction as a defense. Earl v. Camp, 16 Wend. 562; Cornell v. Barnes, 7 Hill, 35; Tucker v. Malloy, 48 Barb. 85. A sheriff cannot excuse himself from the service of process because it is erroneous or irregular, but only when it is absolutely void. Stoddard v. Tarbell, 20 Vt. 321; French v. Willet, 4 Bosw. 649; S. C., 10 Abb. Pr. 99; Hutchinson v. Brand, 9 N. Y. (5 Seld.) 208; 6 How. Pr. 73; Bacon v. Cropsey, 7 N. Y. (3 Seld.) 195. The party in whose favor an execution issues may give such directions as will excuse the sheriff from his general duty or liability. Root v. Wagner, 30 N. Y. (3 Tiff.)9; Fletchers v. Bradley, 12 Vt. 22. And an implied promise of indemnity to a sheriff arises if he follows the direction. Ranlett v. Blodgett, 17 N. H. 298. But where process is merely handed to him for service, without any direction as to the mode, there is no implied promise of indemnity. Nelson v. Cook, 17 Ill. 443. A sheriff acts upon his own responsibility in executing process, and the court will not direct or advise him as to the mode of doing it. Bowie v. Brahe, 4 Duer, 676; Matter of Steamship Circassian, 50 Barb. 490. Ignorance of duty is no excuse for a sheriff. York v. Clopton, 32 Ga. 362. Grain in the straw which has been attached ought to be threshed, if that is necessary for its preservation. Briggs v. Taylor, 35 Vt. 57. Coal seized on a vessel, in a replevin suit, must receive such care as a prudent man of good judgment, well acquainted with the location of the vessel, and having the power of the sheriff, might be expected to take of his own coal. Moore v. Westervelt, 27 N. Y. (13 Smith) 234. But a sheriff who has attached personal property is not liable for a loss or injury which was not caused by his negligence or want of ordinary care. Kendall v. Morse, 43 N. H. 553. If attached property, of which due care is taken by the sheriff, is stolen, the sheriff is not liable. Dorman v. Kane, 5 Allen (Mass.), 38. But a sheriff was held liable where he kept money in a trunk under his bed, after its collection on an execution, from whence it was stolen. Gilmore v. Moore, 30 Ga. 628. A sheriff must execute process before its return day, or his acts will be void. Lofland v. able capias has been issued, he is to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, As ministerial he must carry the judgment of the court into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. officer. As the queen's bailiff, it is his business to preserve the rights of the crown within his bailiwick; for so his county is frequently called in the writs; a word introduced by the princes of the Norman line, in imitation of the As queen's bailiff. French, whose territory was divided into bailiwicks, as that of England into counties(h). He must seize to the queen's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seize and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and he had to collect the rents of the crown within his bailiwick, till this duty was taken from him by the statute 3 & 4 Will. 4, c. 99(i). *To execute these various duties, the sheriff has under him many [* 412] inferior officers; an under-sheriff, a deputy-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500l. (k). The under-sheriff, who must now be nominated by the sheriff within one month after his own appointment(7), usually performs the routine duties of the shrievalty; some few duties only, for discharging which the perUnder-sheriff. sonal presence of the high sheriff is necessary, being excepted. Formerly the under-sheriff was precluded from remaining in office above a year(m), and from practising as an attorney during such period(n), but these regulations, which had long been successfully evaded, are abolished (0), and the under-sheriff is now almost invariably an attorney, and frequently remains in office for many consecutive years. As the sheriff is responsible for the acts of his under-sheriff, it is usual and proper to take security from him for the due performance of his duties(p).(107) At one time the office of under-sheriff was (h) Fortesc. de Leg. c. 24. (i) Dalt. Sheriff, 47. (k) 3 Geo. 1, c. 15, s. 10. (4) 3 & 4 Will. 4, c. 99, s. 5 (m) 42 Edw. 3, c. 9; 23 Hen. 6, c. 7; Dalt. Sheriff, 454. (n) 1 Hen. 5, c. 4. (0) 7 Will. 4 & 1 Vict. c. 55, s. 1. (p) Hob. 14; Dalt. Sheriff, 445. Jefferson, 4 Harr. 303; Vail v. Lewis, 4 Johns. 450; Van Rensselaer v. Kidd, 6 N. Y. (2 Seld.) 331, 333; Prescott v. Wright, 6 Mass. 20. He has no right to use the property levied on; and if it be manuscript, he cannot make and sell copies of it, before the sale. Banker v. Caldwell, 3 Minn. 94. In the execution of process, the sheriff may, if necessary, call to his aid the power of the county. Sutton v. Allison, 2 Jones' Law (N. C.), 339; Coyles v. Hurtin, 10 Johns. 85; Bell v. North, 4 Litt. 133. A sheriff cannot delegate to another the power to appoint a deputy for him. Perkins v. Reed, 14 Ala. 536. (107) It is a rule of very general application that a sheriff is civilly responsible for the acts or neglects of his deputy while acting in an official capacity. Mason v. Ide, 30 Vt. 697; Sheldon v. Paine, 10 N. Y. (6 Seld.) 398; 7 N. Y. (3 Seld.) 453; Pond v. Leman, 45 Barb. 152. A neglect by a deputy to pay over money collected by him as an officer renders the sheriff liable. Norton v. Nye, 56 Me. 211; Seaver v. Pierce, 42 Vt. 325; Hammond v. Root, 15 Gray (Mass.), 516; Hill v. Fitzpatrick, 6 Ala. 314. The sheriff is liable when the deputy levies upon goods not the property of the defendant in the execution. Pond v. Leman, 45 Barb. 152; Commonwealth v. Stockton, 5 Monr. 193; VOL. I.-34 determined by the death of the sheriff, but the stat. 3 Geo. 1, c. 15, provides that in the event of the death or lawful supercession of the latter during his year of office, the under-sheriff (or deputy-sheriff) shall continue in office, and execute the duties thereof in the name of the deceased sheriff until another be appointed. Deputy-sheriff. The deputy-sheriff, as at present constituted, is an officer formerly unknown to the law; for though by various old statutes the sheriff was ordered to make a deputy in the courts of common law and chancery, yet the practice was for him to appoint his under-sheriff deputy, and the under-sheriff appointed his agent in town to act for him. But now, by 3 & 4 . Will. 4, c. 42,*s. 20, the sheriff himself is required to appoint a deputy(q), [*413] for the receipt of writs, granting warrants thereon, making returns thereto, and accepting of all rules and orders to be made on, or touching the execution of, any process or writ directed to the sheriff(r). Bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of hundreds, or common bailiffs, are officers appointed over those Bailiffs. respective districts by the sheriff, to collect fines therein, to summon juries, to attend the judges and justices at the assizes and quarter-sessions, and also to execute writs and process in the several hundreds. And it was once held that these bailiffs should be persons who knew every man's person and land within the hundred, so that they might the more easily execute process, and it was provided by several ancient statutes that they should have sufficient lands within the county to answer the king and his people in case any should complain against them. The sheriff being generally answerable for the misdoing of these bailiffs(s), they are usually bound in an obligation with sureties for the due execution of their office. Special bailiffs are officers chosen by the plaintiff in a suit, or his attorney, and appointed by the sheriff at their request for the purpose of executing a particular writ; and the sheriff is not usually responsible for their misconduct, to those at whose instance he appointed them(t), though he may be so to third persons. The gaoler was formerly the servant of the sheriff, who was responsible for his conduct, and might appoint and *dismiss him at pleasure(u). [ *414] It was the gaoler's business to keep safely all persons committed by (q) Who must either reside or have an office within one mile of the Inner Temple Hall. (r) Harris v. Carter, 5 M. & W. 432; Woodland v. Fuller, 11 A. & E. 859. Since this statute the delivery of any order or rule to the deputy has been held equiva lent to a delivery to the sheriff. See also (u) Bac. Abr. tit. Sheriff, H. 5. Carmack v. Commonwealth, 5 Binn. 184; Wilbur v. Strickland, 1 Rawle, 458; Satterwhite v. Carson, 3 Ired. 549. So he is liable to his deputy where another of his deputies has taken goods which the other had previously levied upon. Robinson v. Ensign, 6 Gray (Mass.), 300. But he is not liable for the services of a person employed by his deputy to keep property attached by the latter. Dooley v. Root, 13 Gray (Mass.), 303; Krum v. King, 12 Cal. 412. Nor is he liable for the act of his deputy, which was performed while he was the deputy of a former sheriff. Wilton Manufacturing Co. v. Butler, 34 Me. 431. Nor will an action lie against a sheriff upon a judgment recovered against his deputy. Pervear v. Kimball, 8 Allen (Mass.), 199. A deputy sheriff may be removed and deprived of authority by a written notice to him from the sheriff revoking his appointment. Edmunds v. Barton, 31 N. Y. (4 Tiff.) 495. |