Majority
p. 185Bayley against Bates, Sheriff, &c.
Headnote
4” i,n<iuisit|on made by a she-» riff’s jury to ascertain whether the property in a/é'-z ,/£w,°is oVnot^iffotmd ,"°a %stificition tolhe sheriff, for returning nulla /,ona> and a con-elusive defence ¡nan action ay^&eL/urii,°uní thaVhe^id'^ot Wlth s°odBut ,lf ,an a'!e_ equate indemnity tendered to he should unreak.^'seem^that proceed anisen naMe°forVfáiscí return-
THIS was an action on the case, for a false return. The declaration stated, that a judgment was obtained in . . February, 1$09, m favour of the plaintiff, against /?. B. on which a fi.fa.. was issued, returnable the 25th of November, 1809, and delivered to the defendant, as sheriff of the county of Ontario, on the 14th of November. That the defendant had not the moneys, as he was direct-v ed, &c. but falsely, maliciously, and deceitfully re- *' turned on the fi.fa. that he could find no goods or chattels, lands or tenements of the said R. B. in his bailiwick, &c. Plea, the general issue. The cause was tried at the Ontario circuit, on the 26tíj)of June, 1810, before the Chief Justice. . v v
On the fieri facias which was given in evidence, the defendant had endorsed a return of nulla bona, It was proved, that after the delivery o.f the writ, and before the return-day thereof, the defendant had levied on & negro boy, said tobe a slave of R. B. the defendant named in the execution, who brought the negro into this state in 1803, when he removed into Ontario
p. 186
county from the state of Maryland; and had filed in the proper office, the affidavit and certificate required by law jn such case. It was proved that R. B. had claimed the ne1 gro as his slave. The plaintiff gavenotice to the defendant, that the negro was the property of R. B. and offered to-indemnify the defendant if he would sell the negro ; and protested against a trial of the question of property by a jury, as the slave was not claimed by any other person. The offer of indemnity was verbal, and not accompanied with a tender of any written security or bond. The defendant summoned a jury to inquire into the fact of property; and by an inquisition taken the 20th of December, 1809, in the usual form, the jury found that the negro was not, in fact, the property of R. B.
The plaintiff’s attorney attended before the jury of inquiry ; no person appeared to claim th¡e negro, and the only question submitted to the jury was, whether the. negro had not become entitled to his freedom, under, the act relative to slaves and servants. (Sess. 24. c. 188.)
It was proved that when R, B. left the county of Ontario, the plaintiff, as his agent, let the farm of R. B. to another person, with the negro, who laboured on the farm, in the service of the lessee, for onp year and nine months, and had afterwards been seen in the service of other persons, some years after R. B. had left the county; and that before the delivery of the execution to the defendant, he had hired himself out to labour, and had been at large, in different parts of the county.
The Chief Justice charged the jury, that the inquisition was conclusive in favour of the defendant, unless the plaintiff proved that the defendant had acted dishonestly and fraudulently; and that to entitle the plaintiff to recover, he mqst not only show that the return was false, but that the defendant knowingly, wilfully, and deceitfully, made such false return; and that it was for the jury to decide whether the defendant had acted iim partially and with good faith, in taking the 'inquisitions The jury found a verdict for the defendant.
p. 187= . 6 » contended that the inquisition in this case was not conclusive. In Latkow v. Earner and Burnettthe court of K. B. held that the proceeding of the sheriff could not lie conclusive in any case, for inquests of office were always traversable. At most, the inquisition could only go in excuse or mitigation of damages. To make a sheriff liable, it is enough to show the fact of a false-return, and the law will -presume a want of good faith in the officer. It is not requisite to prove that he acted maliciously or deceitfully* It was admitted that the negro was a slave, and the inquiry was, whether he had been manumitted according to law. Having been once a slave, he is presumed to continue in that condition until a regular manumission is proved. It does not appear that the jury who signed, the inquisition, found that the negro had been manumitted. Is the inquisition to be conclusive, not only as to right of property, but as to the freedom of the slave ? Whether he was free Or not, was a question of law, not to be decided in this collateral way. observed, that the charge to the jury was not that the inquisition was conclusive as to the right of property, but merely as a protection to the sheriff against this action. By the fifth section of the act concerning slaves and -servants, (sess. 24. c. 188.) the negro became free, in consequence of the hiring or transferring for a year and nine months. It became necessary, therefore, for the Sheriff to have the question tried by a jtiry. In the case of Latkow v. Eamer and another, the inquisition was after the action was brought. It is said by Dalton,[4] and various other writers, that the finding of the jury will excuse the sheriff; and in Farr v. New-mail,
A motion was made to set aside the verdict, as against evidence, and for the misdirection of the judge.
Sudam, for the plaintiff,
Rodman, contra,
p. 188[3] Grose, J. and Lord Kenyon agreed that the sheriff might summon a jury to satisfy himself as to the property, and that the inquisition would justify him: and in Roberts v. Thomas,[4] Lord Kenyon refused to set aside an inquisition He said it was for the purpose of indemnifying the sheriff, in making his return to the writ; but did not bind the right of property between the litigating parties. The same doctrine is recognised in Wells v. Pickman,[5] where Lord Kenyon speaks of the sheriff’s making use of the intervention of a jury, so as to avoid all risks.
The question is, whether the defendant was protected under the inquest of office from the charge of a false return. It is found that he procured and conducted the inquest with impartiality and good faith; and it appears that the plaintiff had due notice of it, and that there was not any regular indemnity offered to the sheriff, in case he would sell the negro. If then the return of nulla bona, founded upon an inquest, will in any case be a defence in an action for a false return, notwithstanding that the property of the chattel in question did belong to the defendant in the execution, this would seem to be such a case. .
The general language of the books is, that these inquisitions will excuse the sheriff in his return of nulla bonay and repel the charge of a false return. (Dalton's Sheriff 146. Gilbert's Law of Executions, 21. Tidd's K. B. vol. 2. 922. Grose, J. and Lord Kenyon, in 4 Term Rep. 633. 648. Lord Kenyon, in 6 Term Rep. 88. 7 Term Rep. 177.Impey 's Sheriff, 135. and by the counsel on each side, in Cooper v. Chitty and Blackstone, 1 Burr. 20. Gould, J. in 3 Wils. 309.) There is not any express adjudication upon the point; for the usual course for the. sheriff is to take an indemnity, by bond, from the plaintiff, if the question of property be doubtful or litigated. There are also other ways pointed out in the books, by
p. 189
which the sheriff will, in such cases, be protected from harm. The court will, on application, enlarge the time for making a return, until the right of property be tried between the parties, or the sheriff receive a sufficient indemnity. So, if he sells, the money may be retained in court until the right be ascertained, and the sheriff may even, by filing a bill in chancery, compel the parties to interplead. (1 Keb. 693. 1 Burr. 37. 2 Black. Rep. 1064 . 2 Tidd’s K. B. 928. 2 Bay’s Rep. 67.) But, if none of these steps be taken, and the sheriff summons an inquest, and makes a return accordingly, it will protect him, unless there be circumstances in the case to show that he did not act with good faith. If the sheriff should •unreasonably refuse an adequate indemnity, the court would probably hold him bound to proceed and sell, or reject this defence. An action for a false return sounds in tort and'fraud; and it draws into consideration, in a greater or less degree, the quo animo of the defendant.
In the present case, there are no circumstances to de= prive the sheriff of the protection which the inquisition ought to give, and the motion for a new trial is denied.
Motion denied.