328 a. The law respecting the validity of warrants of commitment has been much considered in several recent cases, to which we must content ourselves with simply referring, but in which the reader will find the law and cases upon this important and comprehensive subject. In Howard v. Gossett, (c) which is now pending before the Court of Exchequer Chamber, the question was as to the validity of a warrant for arresting the plaintiff, issued by the Speaker of the House of Commons. In this case, which, when finally determined, will be the leading decision respecting the validity of warrants, will be found, it is believed, all the authorities bearing upon this subject. In Van Sandau v. Turner, (d) the inquiry was respecting the sufficiency of a justification of arrest and imprisonment, under a warrant issued by a judge of the Court of Review. And in Thomas v. Hudson, (e) which was an action against the keeper of the Queen's Prison for an escape, the Court of Queen's Bench held that the defendant, who had discharged the prisoner from custody under *an order of one of the Commis[*272] sioners of the Court of Bankruptcy, acting judicially and in a matter over which he had jurisdiction, was protected by such order.(ƒ)

329. Where it is provided by statute, that commissioners, or parliamentary trustees entrusted with the conduct of public works, and acting gratuitously, should sue and be sued by their clerks or other servants, no action is maintainable against the latter, unless it could have been supported against the former in their public capacity ;(g) and although when commissioners under an act of Parliament order something to be done, which is not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered to do, they render themselves liable to an action, yet they are not answerable for the misconduct of such as they are obliged to employ, and against whom, consequently, the remedy for such misconduct must be enforced.(h) It may indeed be laid down as a rule, applicable in ordinary cases, that, where commissioners appointed under an act of Parliament contract with a person carrying on an independent business for the performance of work which they could not execute for themselves, and which they are justified in ordering to [*273] be *executed, under the provisions of the Act, the contractor and not the commissioners will be liable for any injury resulting from the negligent or improper performance of such work.(i) But a substantive and immediate officer of the Crown, charged with the execution of a certain limited duty for which he receives compensation, is clearly liable for an

(c) 14 L. J., N. S., Q. B. 367. In Howard v. Gossett, and Stockdale v. Hansard, 9 A. & E.," and 11 A. & E. 253. 297; and the Case of the Sheriff of Middlesex, 11 A. & E. 273, the extent and nature of the privileges of the House of Commons were elaborately examined.

(d) 6 Q. B. 773; see Green v. Elgie, 5 Q. B. 99.

(e) 14 M. & W. 353,* this case is now pending before the Court of Exchequer Chamber. (f) See also Watson v. Bodell, 14 M. & W. 57; Savory v. Chapman, 11 A. & E. 829.a (g) Per Best, C. J., Hall v. Smith, 2 Bing. 158;b Cane v. Chapman, 5 A. & E. 647. 658, 659; Wormwell v. Hailstone, 6 Bing. 668;d Jones v. Gooday, 9 M. & W. 736.* (h) Per Best, C. J., 2 Bing. 158b et seq.; Sutton v. Clarke, 6 Taunt. 29. See Harris v. Baker, 4 M. & S. 27; Boulton v. Crowther, 2 B. & C. 703, and cases there cited; Jones v. Bird, 5 B. & Ald. 837.g

(i) Allen v. Hayward, 15 L. J., N. S., Q. B. 99; see also Davis v. Curling, Id. 56.

"Eng. Com. Law Reps. 36. *Id. 39. Id. 48. Id. 39. Id. 9. Id. 12. Id. 19. Reprinted at $2.50 per vol.

eId. 1. fId. 9. Id. 7.

injury occasioned by the neglect of his duties.(k) For it is a general principle, that where the law casts any duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures, and if several are jointly bound to perform such duty they will be liable, jointly and severally, for their failure or refusal to perform it.(7)

330. The ground of the sheriff's liability for the acts of his bailiff is, that he is casting upon another a duty which the law imposes upon him, and consequently that he is acting by a servant;"(m) he will, therefore, according to ordinary principles, be liable for an illegal or fraudulent act committed by his bailiff, even though he were not personally cognizant of the transaction, and may be sued jointly with him,(n) (as if the

bailiff *seize the goods of the wrong party by mistake,(o) or arrest [*274] a person under a fi. fa. (p)), unless the act were done under circumstances constituting him the special bailiff of the party; as, where the attorney of the plaintiff in a cause requested of the sheriff a particular officer-delivered the warrant to that officer-took him in his carriage to the scene of action, and there encouraged an illegal arrest, it was held that the sheriff was not liable for an escape.(g) Nor will the sheriff be liable if the wrong complained of be neither expressly sanctioned by him, nor impliedly committed by his authority; as, where the bailiff derived his authority not from the sheriff but from the plaintiff, or from some other party at whose instigation he acted ;(r) for although the general rule is, that the act of the officer is in point of law the act of the sheriff, yet it is not competent to one, whose act produces the misconduct of the bailiff, to say, that the act of the officer, done in breach of his duty to the sheriff, and which he has himself induced, is the act of the sheriff. (s) When, therefore, an action *had been commenced against the sheriff and his officer for seizing a horse, and it appeared that the execution creditor had [*274 a] identified himself with the sheriff by directing the seizure of the horse in question, the court, on application by the sheriff, directed that the action should be continued, the name of the execution creditor being substituted for those of the sheriff and his officer.(t)

(k) Barry v. Arnaud, 10 A. & E. 646;h Schinotti v. Bumsted, 6 T. R. 646; Per Best, C. J., Henley v. The Mayor of Lyme, 5 Bing. 107, affirmed 1 Bing. N. C. 222.k

(1) Ferguson v. Earl of Kinnoull, 9 Cla. & Fin. 251. 279, recognising Sutton v. Johnston, 1 T. R. 493.

(m) Per Tindal, C. J., Brown v. Copley, 8 Scott, N. R. 362.

(n) Per Ashhurst, J., Woodgate v. Knatchbull, 2 T. R. 154; Raphel v. Goodman, 8 A & E. 565; Sturmy v. Smith, 11 East, 25; Price v. Peek, 1 Bing. N. C. 380;k Crowder v. Long, 8 B. & C. 602.m See Peshall v. Layton, 2 T. R. 712; Thomas v. Pearse, 5 Price, 578.

(0) Jarmain v. Hooper, 7 Scott, N. R. 663.

(p) Smart v. Hutton, 8 A. & E. 568, n.o See Belshaw v. Marshall, 4 B. & Ad. 336.° (9) Doe v. Trye, 5 Bing. N. C. 573;P Ford v. Leche, 6 A. & F. 699, cited and distinguished in Alderson v. Davenport, 13 M. & W. 42; Per Buller, J., De Moranda v. Dunkin, 4 T. R. 121.

(r) Cook v. Palmer, 6 B. & C. 739; Crowder v. Long, 8 B. & C. 598;m Tompkinson v. Russell, 9 Price, 287; Bowden v. Waithman, 5 Moore, 183; Stuart v. Whittaker, Ry. & M. 310; Higgins v. M'Adam, 3 Y. & J. 1.

(s) Per Bayley, J., Crowder v. Long, 8 B. & C. 603, 604.m (t) Brown v. Ludham, 6 Scott, N. R. 934.

hEng. Com. Law Reps. 37. Id. 15. PId. 35.

Id. 27.
Id. 33.

Id. 35. mId. 15. Id. 35. oId. 24. rId. 13.

330 a. As to the position of the sheriff with respect to the county court, "there are," as observed in a recent case, "strong authorities to shew that he is a judicial and not a mere ministerial officer," and that he will not therefore be liable for the misfeasance of his officer in executing process issuing out of such court,(u) as in trover for a conversion by his bailiff of goods seized under a process of attachment, but after notice of a supersedeas.(x)

330 b. Not only will the sheriff, as a general rule, (y) be liable for the wrongful act of his officer, but the plaintiff in the original action,(z) or the attorney who directs (a) the execution of a warrant, will be liable in trespass if it prove bad.

When the Husband must be sued alone, ss. 331, 332. When the Wife may be sued alone,-Her Liability if she survives Husband, s. 333. When the Husband may be sued alone or jointly with his Wife, ss. 334-336. When the Husband and Wife must be sued joint!y, s. 337. Infant, Non Compos Mentis, Outlaw, ss. 338, 339.

331. WHERE goods have been converted by a feme covert by an act implying a transfer of property in them, and not amounting to a total destruction, it seems that trover may be brought against the husband alone, for the conversion is in law the act of the husband, and cannot, in legal contemplation, be to the use of the wife; (a) but, if the latter be joined as a defendant, the court will, after verdict, presume that the conversion was merely temporary and did not effect an ultimate change of property, and was, consequently, such as the wife might be guilty of.(b) There may, however, be a distinction in this respect between the actions of detinue and trover, for, in the former, the plaintiff seeks to recover the goods in specie, but in the latter he only asks for damages: (c) and therefore, if the delivery be to hus

(u) Brown v. Copley, 8 Scott, N. R. 350, citing 2 Roll. Ab. 552, pla. 10; Tinsley_v. Nassau, Moo. & Mal. 52; Pitcher v. King, 9 A. & E. 288 ; Tunno v. Morris, 2 Cr. M. & R. 298. See Cameron v. Reynolds, 1 Cowp. 403; cited Bull. N. P. 64, n. (a). (x) Brown v. Copley, 8 Scott, N. R. 350.

(y) See Magnay v. Burt (in error), 5 Q. B. 381; Riseley v. Ryle, 11 M. & W. 16. (2) Jarmain v. Hooper, 7 Scott, N. R. 663.

(a) Green v. Elgie, 5 Q. B. 99,b overruling Sedley v. Sutherland, 3 Esp. 202.

(a) Berry v. Nevys, Cro. Jac. 551. See 2 Wms. Saund. 47 i.; post, s. 334.

(b) Per Bayley, J., Keyworth v. Hill, 3 B. & Ald. 687, 688; Draper v. Fulkes, Yelv. 165. See the form of a declaration in trover against both the husband and wife, alleging a conversion by the wife to the use of the husband, Catterall v. Kenyon, 3 Q. B. 310. (c) Per Best, J., 3 B. & Ald. 689.c

Eng Com. Law Reps. 36. Id. 45. Id. 5. Id. 43.

band and wife, the action of detinue *should, it seems, be brought against the husband alone.(d)

[*275]

332. If the husband survive no action lies against him for the tort of his wife, committed either before or during coverture, (e) though, if he has been a joint tortfeasor with her, he is still liable in respect of his own tortious act; but if the husband of an executrix waste the goods, this is a devastavit in the feme, on which the husband surviving shall not be charged, unless judgment was recovered against husband and wife during coverture.(g) It must, however, be observed that, if the wife was entitled to any choses in action which the husband did not reduce into possession in her lifetime, so that it becomes necessary for him to take out administration to her, he will be liable, as her administrator, for her devastavit, by virtue of the stat. 30 Car. 2, c. 7, explained and made perpetual by 4 & 5 Will. & M. c. 34, s. 12.(h) Again, if the husband of lessee for life does waste, and the wife dies before a recovery against them, the husband shall not be charged ;(i) but if baron, possessed for years in right of the feme, does waste, and afterwards the feme dies, an action for waste lies against the baron, because the law gives the term to him.(k)

*333. A married-woman cannot be sued alone for her separate

tort, subject, however, to the exceptions already noticed ;(1) but she [*276]

remains liable after her husband's death for her tortious act, committed either before or during marriage, and if jointly concerned with her husband in committing the injury, so that an action would have lain against both, it seems that her liability would equally survive ;(m) therefore, if feme lessee for life marries and the husband does waste, a right of action for such waste will survive against the feme ;(n) and so, if the baron and feme are joint lessees for years or lessees for life, provided, in the latter case, the feme agrees to the estate after the baron's death. (0) The rule laid down as to the liability of a feme executrix or administratrix surviving her husband, for his devasta vit of the goods of the testator or intestate, is, that if she was executrix or administratrix before the coverture she shall be charged for the act of the husband after his death; but that if a feme covert be made executrix or administratrix, and the probate or letters of administration be taken out by the husband in his wife's name, but either against or without her consent, and she do not afterwards intermeddle in the administration, she may renounce after his death, and avoid the consequences of his devastavit.(p)

(d) Per Dodderidge, J., Isaac v. Clarke, 2 Buls. 308; Marshe's case, 1 Leo. 312; 38 Edw. 3. 1, a; post, s. 337.

(e) Hammond, Parties to Actions, 184.

(g) Mounson v. Bourn, Cro. Car. 518, 519; Com. Dig. Bar. and Feme, (2, B.), (2, C.); Hammond, Parties to Actions, 192.

(h) 2 Williams on Executors, 3rd ed. 1441.

(i) Com. Dig. Bar. and Feme, (2, C.); but see Sacheverel v. Bagnoll, Cro. Eliz. 357. (k) Bac. Ab. 7th ed. Waste, (H).

(1) Bac. Ab. Bar. and Feme, (L.); ante, ss. 99, 100. 222.

(m) Per Bosanquet, J., Vine v. Saunders, 4 Bing. N. C. 102.e

(n) Bac. Ab. 7th ed. Waste, (H).

(0) Ib.

(p) 2 Williams on Executors, 3rd ed. 1444, 1445.

334. It is now expressly decided that husband and wife are jointly liable in trespass for their joint act, as *for their joint assault or battery; [*277] and in this case it is consequently unnecessary to bring two actions() and where, in trespass against baron and feme for entering plaintiff's house and taking his goods and converting them to their own use, it was moved in arrest of judgment, that the feme could not convert to her own use, the Court held trespass maintainable, the conversion not being the gist of this action.(r) In trover against husband and wife, the conversion should not be laid to their joint use, but to the use of the husband,(s) yet if so laid the declaration will be sufficient after verdict; and the conversion itself being a tortious act of which the wife may, under certain circumstances, be guilty, as in the case of a total destruction,(t) she may, it seems, be charged with the conversion, and the declaration may state that husband and wife converted the goods, omitting the words, to their own use,(u) or that the wife converted them to the use of the husband.(x) But for a conversion by the wife during coverture, an action may be brought against the husband alone, for the act of the wife may be *considered, in [*278] law, as the act of the husband.(y) Again, case will perhaps lie against husband and wife for retaining and keeping the servant of another, although the feme cannot enter into a contract: for the receiving and keeping the servant without any contract may, perhaps, constitute a trespass with which the feme may be charged.(z)

335. With regard to the lands of a married woman it should be observed, that an action on the case, in the nature of waste, lies against husband and wife upon a lease for life or years to both jointly, or to the feme whilst sole, in which latter case the wife ought, perhaps, to be joined in the action; (a) and the Courts consider the rent issuing from the lands of a married woman to be so much in the nature of a personal chattel belonging to the husband, that he may distrain and even avow alone for such rent accruing during the coverture ;(b) although the wife may generally join with her

(q) Vine v. Saunders, 4 Bing. N. C. 96, where the cases are reviewed; Watson v. Thorpe, Cro. Jac. 239; admitted, Berry v. Nevys, Cro. Jac. 661; Per Bayley, J., Keyworth v. Hill, 3 B. & Ald. 687 ; White v. Eldridge, 1 Lord Raymond, 443; Smalley v. Kerfoot, 2 Stra, 1094.

(r) Smalley v. Kerfoot, 2 Stra. 1094.

(s) Rhemes v. Humphreys, Cro. Car. 254. See Catterall v. Kenyon, 11 Law Journ., N. S., Q. B. 260.

(t) Keyworth v. Hill, 3 B. & Ald. 685,5 recognized 4 Bing. N. C. 102;f Draper v. Fulkes, Yelv. 165; Coxe v. Cropwell, Cro. Jac. 5.

(u) 2 Selw. N. P. 10th ed. 1368.

(x) Catterall v. Kenyon, 11 Law Journ., N. S., Q. B. 260.

(y) 2 Roper, H. & W. 2nd ed. 127.

(z) Fawcet v. Beavres, 2 Lev. 63, cited in Com. Dig. Bar. & Feme, (Y.), in Bac. Ab. Bar. & Feme, (L.), and in 4 Bing. N. C. 98.h

(a) Bac. Ab., 7th ed., Waste, (H.); Com. Dig., 5th ed., Bar. & Feme, (Y.), n. (ƒ) In ejectment by husband and wife, the demise must be stated according to the title of the landlord; therefore if husband, seised in fee jure uxoris, has made a lease jointly with his wife, and that lease being forfeited or expired he brings ejectment, and shows a demise to the plaintiff by himself only, the declaration will be bad. Coote, L. & T. 576 ; Bac. Ab. 7th ed. Bar. & Feme, (D. 3); ante, s. 285.

(b) Coote, L. & T. 432; Osborne v. Wickenden, 2 Saund. R. 197.

fEng. Com. Law Reps. 33. Id. 43. hId. 33.