Common Pleas, Lord Mansfield said that the House of Lords 1808. had in two instances awarded the writ, and that the King's STERRETT Bench as a court of error had the same jurisdiction; and afterwards in delivering the opinion of the court page 91. he says if either side had moved for a venire facias de novo "this court as a court of error could have granted it." So in Grant v. Astle, (a) which was a writ of error from the Common Pleas, brought by the defendant below, the court said "There was no "doubt but a venire de novo might be granted by a court of error; that it had been done by the House of Lords, and was "not a new practice, (1781) for upon inquiry made by this "court on a late case from Ireland, a great many instances had "been found;" and so a venire was awarded, and the record sent back. In Davies v. Pearce et al. (b), a venire de novo was awarded upon the reversal of a judgment, on a bill of exceptions. So in Bent v. Baker. (c) In the Supreme Court of the United States this power has been exercised in one instance, and in another admitted though not exercised, because the court were divided in opinion as to the jurisdiction of the court below. This latter case was Bingham v. Cabot et al. (d) But in the former, Clarke v. Russel, (e) there was a perfect verdict below for the plaintiff, a bill of exceptions tendered by defendant to the opinion of the court upon a question of evidence, a writ of error sued out by defendant, a reversal of the judgment in consequence of admitting the evidence, and a venire facias de novo, which is exactly this case. Frazer also cited Trevor v. Wall, (f) in which the venire was refused; but there the proceedings originated in an inferior court. 2 Bac. Abr. Error. m. 2. 2 Cro. Jac. 206. 1 Show. 127. Cas. temp. Hardw. 51. Salk. 403. Com. Dig. Pleader. 2 B. 20.* Ross relied on the case of Street v. Hopkinson et al. (g); error in B. R. in Lord Hardwicke's time; in which the court * Vid. note (a) to Davies v. Pierce, 2 D. & E. 126. where the reporter has classed the cases in which a venire facias de novo may be granted. V. BULL. 1808. say that they cannot award a venire de novo, because the action STERRETT was not in the same court. He also adverted to its being a case of the first impression in the Supreme Court; but he did not press his argument upon either point. V. BULL. Per CURIAM. We have no doubt that we have power to award a venire facias de novo. It tends to the despatch of justice, as it prevents delay; and there can be no reason against it but want of precedent in this court, for the cases cited seem to shew full authority. The practice of the Supreme Court of the United States, although not binding upon us, will always command great consideration. Judgment that the record be remitted with award of Venire de novo. Saturday, January 2. In an action against the sheriff for duct of his ΤΗ HAZARD against ISRAEL. HIS was an action of trespass brought against the defendant, who was sheriff of the county of Philadelphia, to recover damages for the misconduct of his officer in the executhe miscon- tion of a fi. fa. It was tried before BRACKENRIDGE J. at Nisi officer in the Prius in December 1807, when the jury found a verdict for the execution of plaintiff, 750 dolls. damages. The defendant now moved for a a writ, it is not necessa- new trial on the grounds that the verdict was against law and ry to shew a evidence, and the damages excessive. particular warrant to The facts as reported by Judge BRACKENRIDGE were as folthe officer; lows: Lewis as executor of Fuller brought a suit against the this is neces sary only in plaintiff and Bringhurst as administrators with the will annexed the case of a bailiff; but in this state there are no bailiffs, their place being supplied by deputies whose authority is sufficiently shewn by proof of a general privity with the sheriff. The sheriff' is answerable for the misconduct of his deputy, whether he recognises and adopts his acts or not. A Jury may give exemplary damages against the sheriff for the misconduct of his deputy. If a deputy sheriff enters the house of an administrator to look for goods of the intestate, and afterwards proceeds to levy upon the goods of the administrator from whom nothing is due, he is a trespasser ab initio. 1808. V. of Clarkson, in which judgment was obtained for a considerable sum, reserving the question of assets. Upon this judgment a fi.fa. HAZARD issued for the debt, to be levied of the testator's goods, and seven pounds ten shillings costs to be levied in like manner if goods ISRAEL. were found otherwise de bonis propriis of the administrators. While the execution was in the hands of Suter the deputy sheriff, he mentioned the circumstance to Mr. Reed the attorney of the administrators on record, who told him that the costs were paid to the defendant; and the fact was, that before the execution issued, Mr. Reed had requested the sheriff to charge the costs. to his private account, to which he assented. There was no pretence that Clarkson's administrators had any of his goods in their hands at the time of the execution or afterwards; nevertheless Suter on the return day of the writ went between ten and eleven o'clock at night to the plaintiff's house, and there proceeded in a rude and insolent manner to levy upon the furniture in the parlour to the amount of seven or eight hundred dollars, and then asked for more property. Mr. Reed, who was called in, forbade Suter to levy, asked him to read the execution, told him that the plaintiff was answerable for costs only, and that they were paid. Suter answered that he knew his duty as well as Mr. Reed, and that he was levying for debt and costs; he then continued to make his inventory, and afterwards went away, but without removing any of the goods. On the next morning Ingersoll moved the court to set aside the levy; and in the course of the day the defendant wrote to the plaintiff that he rescinded the levy, and then made the following return to the fi. fa.: "No "goods of Clarkson whereon to levy &c. and for default thereof "levied on divers goods &c. of Ebenezer Hazard for the dama"ges, which are since restored, as the amount of the said "damages were previously secured to me, and my bailiff "when the said levy was made was not informed thereof." Condy for the defendant. 1. As to the act of Suter the officer. He was not a trespasser; he had a right to levy for the costs, for although the sheriff had security for them, they were not paid; and if he was dissatisfied with the security, whatever was its character, there was no legal impediment in the way of his compelling the payment of them by Hazard. He had moreover a right to enter for the purpose of looking for the goods of Clarkson. It is in the possession of the admiVOL. I. 2 H 1808. HAZARD V. ISRAEL. nistrator that such goods are to be sought; and as this circumstance makes his entry lawful, he must be made a trespasser, if at all, by subsequent acts. But there was no violence; he did not remove or touch a single article of furniture; he merely put in a claim to the goods for the sheriff, and then departed. It cannot be that he was guilty of a trespass by saying that he made a levy, without any thing further. 2. As to the liability of the sheriff. It was incumbent on the plaintiff, in order to support this action, to shew the defendant's warrant to Suter for executing this writ; which was not done. The sheriff must answer for the acts of his bailiff; but the particular warrant must be produced. No general privity between them, such as is shewn by the bailiff's bond, or by his acting usually as such, will answer. Drake v. Sykes. (a) The defendant immediately rescinded the levy made by Suter; and if upon notice to the sheriff of bailiff's misfeasance, the property is instantly restored, no action of trespass will lie. It would be otherwise if there was a special command by the sheriff to the bailiff to commit the trespass. But the writ is a warrant to do that only which is lawful; and unless the sheriff recognises the unlawful act, he is not answerable. Here the goods were not touched, and the levy was given up as soon as the sheriff had notice of it. Saunderson v. Baker (b) turns upon the sheriff's recognising the unlawful act of his bailiff; and Lord Chief Justice De Grey put it to the jury expressly "That if they "were of opinion that the sheriff had recognised the act of "Bolland, they ought to give their verdict for the plaintiff;" which they accordingly did, and said "they were of opinion "that the sheriff had recognised the act of Bolland." 3. The damages are outrageous. Suter did not touch an article but the chair he sat on; Israel rescinded the levy on the very next day; and the jury give 750 dollars as a compensation to the feelings of the plaintiff; for he has sustained no injury. Notwithstanding the case of Duberly v. Gunning (c) the court may certainly grant a new trial for excessive damages in cases of tort. Jones v. Sparrows. (d) Ducker v. Wood. (e) If there be any propriety in the rule of Duberly v. Gunning, which was an action for crim. con., it can be only in application to such a case. The damages here are evidently given by way of example; and (a) 7 D. & E. 113. (c) 4 D. & E. 651. (e) 1 D. & E. 277. 6 Bac. Abr. 667. 1808. HAZARD no case can be shewn in which exemplary damages have been supported against a sheriff for the act of his bailiff, in an action of trespass for taking property. In Lippincott v. Barker sheriff of Philadelphia county, the measure of damages was the amount ISRAEL. sales of the goods. Ingersoll contra. 1. There cannot be a doubt that Suter was a trespasser. The costs were absolutely paid; and the sheriff attempts to save himself by a quibble, when he returns, that they were secured to him. They were settled by Mr. Reed; the sheriff positively accepted him as a debtor for them; they were charged to his account; and the idea of security was an after thought. But the circumstance was also communicated to Suter several days before he attempted a levy; it was repeated to him at the time of levy, and there was no pretence of ignorance. He even levied for debt and costs; and after taking about eight hundred dollars' worth of furniture for twenty dollars costs, he still asked for more. The pretence of searching for Clarkson's goods is also set up since the fact. He did not ask for them; the parlour of the plaintiff was not the place to seek them. Though he may have used no violence to enter the house, his conduct afterwards was rude and insolent; it shewed the disposition with which he entered; and although a man whose behaviour is civil and decorous may enter my house under the presumption of general leave given to persons of such a description, yet my house is my castle; and if any one enters it to disturb my family and to insult and offend me in the bosom of it, he is a trespasser ab initio. 2. The sheriff is liable under the circumstances of the case. There is no necessity for producing a warrant to Suter. He was the under sheriff and not the bailiff; bailiffs, such as are known in England, are not known in the state of Pennsylvania. The under sheriff is the general servant of the sheriff; the bailiff is his servant to a particular purpose; hence the necessity of shewing a particular warrant to the latter, while proof of a general privity is all that is essential to establish the connexion with the former. Drake v. Sykes. The defendant did not rescind his levy until a motion was made in court, and they were about to compel him. But this fact is not material; the sheriff is answerable for the act of his υ. |