Day v. Brett

Kent, Ch. J. delivered the opinion of the court. The sheriff is not privileged from arrest and imprisonment for debt. There is no such exemption of him known in our law. It is the constant practice to arrest him on mesne process, and to make him responsible for his official conduct, by attachment. The English books, and our own proceedings, furnish many instances of this kind. There are not, indeed, many cases in which ail execution has been issued against a sheriff’s body, for debt, though the case of Taylor v. Clark and Denny, (3 Leon. 399.) is sufficient to show what the law is on the subject, and that the sheriff is as liable as any other person to be taken in execution. The reason why such precedents are scarce is, that the sheriff’s station is such as to make him struggle to avoid such a process; for, as was said in the case of Sir John Lanthall, (Sty. 465.) “ It is neither for his own credit, nor the honour of the court, that a sheriff should not pay his25 debts.” The only difficulty is to know what the co-loner is to do with the sheriff, after he has taken him in execution ; and this was the only embarrassing point with the court, in the above case of Somes v. Lenthall. In the present case, the defendant, after he had arrested the sheriff, on the 1st of July, (for the preceding interview with the sheriff did not amount to an arrest,) delivered him in the gaol of the county, to the deputy-sheriff and gaoler, and he was, immediately thereafter, seen at large. The sheriff has, by statute, (Laws, vol. 1. 208.) and so he had at common law, (Dalton’s Sheriff, p. 5.) the custody of the gaols and prisons of the county, and the prisoners in the same. It is absurd, then, to suppose, that the sheriff can be committed to the gaol of which he has, by law, the custody, and of which he appoints the keeper. None of the provisions in the Statutes, relative to sheriffs and gaols, do, or can, by any reasonable construction, apply to this case, of an imprisonment of the sheriff himself. This must be considered as a casus omissus in the statute book, and it is left as it was at common law, by which the sheriff might make his own house, or any other place, a prison. (Latch. 16. Anon.) This is what the coroner ought to have done ; for when process is awarded to him, to be executed, he is, as the old books express it, locum tenens mcecomitis; and has the common law powers of a sheriff. He was bound, in this case, to have found some other place within the county than the common gaol, for the imprisonment of. the sheriff. It is to be regretted that there is no legislative provision applicable to this case ; and until some be made, we must lay down the rule of the common law as we find it, however inconvenient it may be to the officer, or hard upon the party. It is not to be admitted that a sheriff i,s to [26] be exempt d from the payment of his debts, or from the established means provided to compel a debtor, in all other cases. The delivery of the sheriff to the county gaol, and leaving him there, was an escape; and judgment must be for the plaintiff. Judgment for the plaintiff.