land, and so to commit a trespass. But if it were an express covenant for quiet enjoying, there perhaps it were otherwise. (2) and the remainderman enter on the termor, an action will not lie upon the implied covenant against the executors of the lessor. Semb. Dyer 257. a. Swan v. Stransham & al. Sed quare, et vide lb. in notis, where it is said the authority of this case has been doubted. If in such case, the lease had been by tenant in tail the action would lie against his executors. lb. in notis. And if tenant in fee make such a lease for years by indenture, without express covenant, and die within the term, and his heir in by descent, oust the termor, he shall have his action of covenant against the heir, for the privity. Dyer. ub. sup. The assignee of a term may maintain an action upon such implied covenant against the lessor, for an eviction by title paramount, but not against the assignor. 14 Mass. 486, Waldo v. Hall. But an underlease for a less term, reserving rent to the original lessee without reference to the original lease, is the same as an original lease between the parties. Ib. A general implied covenant may be restrained by an express special covenant. Thus the general covenant in a lease implied from the word demisi, is restrained by an express covenant for quiet enjoyment against the lessor and all persons claiming under him. Cro. Eliz. 674, Nokes v. James. 4 Co. 80. S. C. 1 Mod. 113, Deering v. Farrington. 7 Johns. 258, Kent v. Welch. It seems, however, that this applies to warranties of chattels or terms for years, and not to warranties annexed to freeholds and inheritances. Co. Lit. 384. a. In New York the doctrine is laid down as universally applicable that an express covenant will do away the effect of all implied covenants. 2 Caines 192, Frost v. Raymond. 11 Johns. 122, Vanderkarr v. Vanderkarr. In Massachusetts it is said by Sewall C. J. that if a deed contains express covenants of a limited nature, no general covenant of title can be implied. 8 Mass. 201, Sumner v. Williams & al. But in 7 Mass. 69, Gates v. Caldwell, it was held that in a deed containing express covenants there might be also implied covenants not contradictory to, but consistent with the express covenants. So, Co. Lit. 384. a. if a man makes a feoffment by the word dedi, and in the deed warrants the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor. And if a man makes a lease for life rendering rent and adds an express warranty, here the express warranty does not take away the warranty in law. Ib. If a man make a gift in tail or a lease for life reserving rent, or a rentservice by deed, this is a warranty in law, and extends not only against the donor or lessor and his heirs, but also against the assignees of the reversion; and so also the assignee of the lessee for life shall have the benefit of it. Co. Lit. 384. b. The verb dedi, in a feoffment in fee simple implies a warranty, but since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs. 2 Bl. Com. 300. In conveyances in fee simple a warranty is not implied in the word grant, concessi, or any other word except the word, give, dedi. Secus, of a lease for years. Butler's note 332 to Co. Lit. See further, as to the law of implied warranties annexed to freeholds, and inheritances. Co. Lit. 384. a. and note 332. 2 Bl. Com. 300. And the opinion of Kent C. J. in 2 Caines 190, Frost v. Raymond. (2) Vide ante, p. 3, Pincombe v. Rudge, in notis. [12 b] [ 12 c ] Obligation. Trin. 12 Jac. Southampt Bond by under sheriff to the high sheriff. Winch. Ent. 193. Brownl. 1. R. 63, 65. 2. Mod. 568. NORTON US. SIMMES. The stat. 23, H. 6. c. 9, is a special statute and must be pleaded. A sheriff may appoint a deputy at will, and if he grant a deputation irrevocable, yet he may revoke it. An under sheriff has power, by law, to execute all process, the command of which is not personal to the sheriff; and this power cannot be restrained or abridged, either by covenant on the part of the under sheriff not to execute certain process, or by a proviso in the act of appointment by the sheriff; and such proviso or covenant would be void. A bond taken by the sheriff to save him harmless of his own unlawful acts or omissions, is void; but a bond from his under sheriff to save him harmless of all escapes upon arrests made by the under sheriff is valid. A bond for performance of covenants, some of which are void and some valid at common law, is good as to the valid covenants. Secus, if void as to part, by statute. In debt on bond for performance of covenants, if the defendant pleads an insufficient plea of performance, and the plaintiff in his replication assigns no sufficient breach, he cannot have judgment. In debt on such bond, a general plea of performance is good, though some of the covenants are negative, if the negative covenants are void, as against law. SIR DANIEL NORTON, knight, late sheriff of Hampshire, brought an action upon an obligation of an hundred pounds against Richard Simmes, for performance of coveGodb. 212. 23 nants, whereof the effect was, that whereas Sir Daniel H. 8. cap. 10. Norton had made Bryan Chamberlaine his under sheriff at his will, the same Chamberlaine by indenture did covenant with the sheriff to discharge and save him harmless of all escapes of prisoners that should be arrested by him, or any bailiff or officers appointed by him. And another covenant was, that he should not execute any extent, liberate, elegit, or any other execution for any sum above the sum of twenty pounds, before he had first made known to the said sheriff the nature and quality of the said writ; and if any such execution were above twenty pounds, then he would not execute it without the special warrant of the said Sir Daniel Norton the high sheriff. And there were also divers other covenants; and the defendant pleaded, that Chamberlaine the under sheriff had performed all the covenants; whereupon the plaintiff replied, that one White, anno 44 Eliz. had recovered in the Common Pleas two hundred and three pounds debt against one Fielder, and that he had gotten fiftytwo pounds thereof by an execution of fieri facias in the said county of Southampton, and died, and that Frances White, his executrix, had sued a scire facias against the said Fielder for the residue, viz. one hundred and fiftyone pounds, and had judgment, and took out a capias ad satisfaciendum and delivered it to the said Chamberlaine, who arrested him by force thereof, and so he was in execution, in the custody of the said sheriff, for the said debt, and so being, and Chamberlaine remaining under sheriff, the said Fielder escaped out of the custody of the said sheriff, the debt not satisfied; by means whereof the said sheriff was chargeable to pay the said debt, and did pay it unto the said Frances White; and all this was in the sheriffwick of the said Sir Daniel Norton, and while the said Chamberlaine was under sheriff, viz. 6 Jac. Reg. Hereupon the defendant demurred in Law;' and in Trinity Term, 12 Jac. the whole court, upon public argument, gave judgment for the plaintiff, and in this case these points were resolved. [12 d] [13] First, that this case was not within the stat. of 23 H. 6. Judgment. Dy. 120. a. Sid. both because it was not a bond made by or in the behalf 23. 10 Co. 99. of a prisoner, as Beausage's case is; as also because the Plo. 65. a statute is not pleaded, being a special Law (1); and also Co. 76. b. (1) It was long a quæstio vexata whether the statute 23 H. 6. c. 9. was a general or special act. Montague C. J. says, (Plowd. 65) in the quaint language of his time, that it is an act particular in a generality, or it may be called general in a particularity,' and that it ought to be pleaded. In the case in the text it is called a private act. In 2 Saund. 154, Benson v. Welby, it was held to be a private statute, though Twysden J. thought it ought to have been settled otherwise. In 1 Str. 399, Mills v. Bond, it was held to be unnecessary to plead it. In many other old cases the question occurred and it was generally considered a special act, though with some difference of opinion among the judges. In a more modern case, Doug. 93, Boyce v. Whitaker, n. 12, Lord Mansfield inquired if there was ever any doubt whether this statute was a public act. It is now, however, settled, in the case of Samuel v. Evans, 2 T. R. 569, in which all the authorities were examined, that it is a public act and need not be pleaded. The provisions of this act are in force in Massachusetts as a part of the common law of the state; 5 Mass. 315, Morse v. Hodsdon & al. 7 Mass. 101, Clap v. Cofran; in New York by legislative enactment; 24 sess. c. 28. s. 13; 2 Johns. Ca. 239, Dole v. Bull; and, being for the liberty of the subject, are probably adopted in substance in the other States. Vide 4 Hen. & Mun. 281. 2 Day 4. 4 Harris & Mc Henry 5. The statute consists of two branches; the first is as to the persons to b. Dy. 119. a. 4 [13 a] Plo. 143. a. Co. 9. 49. b. 48. b. 97. a. 98. a. 11 Co. L. 233. b. because it was not directly pleaded that Norton was high sheriff, or Chamberlaine under sheriff, but only by way of recital in the indenture, which was pleaded. It was also resolved, that the sheriff might grant his under sheriffwick to hold at his will only; for it was in his choice to make or not to make an under sheriff, but to exercise it himself. That an under sheriff is in effect but the sheriff's deputy, and therefore according to the nature of a deputation must be removeable as an attorney is; so as if the sheriff should make him irrevocable, yet he may revoke him. There is neither common law nor statute law, that makes him immoveable. He is but in the nature of a general bailiff errant to the sheriff and Dy. 278. b. 275. the whole shire, as others are over the hundred. His oath a. p. 115. appointed by the statute of 27 Eliz. is, that he shall bear be let to, or excluded from, bail by sheriffs, &c.; and the second as to the nature and form of the security. 1st. As to the first branch. It has been held that the marshal of the King's Bench, though not named, is within the reason and intent of the act, and therefore bound by it; Dyer 323. b. Ligeart v. Wiseham; Cro. Eliz. 66, Bracebridge v. Vaughan; 1 Saund. 162, Lenthal v. Cooke; that it is imperative, and therefore if a prisoner who is bailable by the act tenders a bail bond with sufficient sureties, and the sheriff refuses to accept it, he is liable to a special action on the case; 2 Salk. 609, Rex v. Barlow; 2 Mod. 31, Smith v. Hall;-84, Page v. Tulse; 5 Mau. & Sel. 223, Matson v. Booth; but not to an action of trespass vi et armis for false imprisonment, for the refusal does not make him a trespasser ab initio; Cro. Ca. 196, Salmon v. Percival; 2 Mod. 31, Smith v. Hall; 1 Saund. 61, a. n. (5); and the action must be brought against the sheriff, and not against his bailiff who made the arrest; Smith v. Hall, ub. sup.; 'that the act is imperative also as to its exceptions, and therefore if the sheriff let to bail those who come within its exceptions, the bond will be void and he will be guilty of an escape; Plowd. 67, Dive v. Manningham; 4 T. R. 505, Bengough v. Rossiter, and S. C. affirmed on error, 2 H. Bla. 418; that a bond given to a sheriff for the appearance of a person arrested on process issued on an indictment for a misdemeanor is void as against the statute, though 'indictments of trespass' are expressly mentioned; Bengough v. Rossiter, ub. sup.; that a sheriff cannot take bail on an attachment for contempt; 1 Str. 479, Anon.; Com. R. 264, Field v. Workhouse; but he may upon an attachment of privilege, attachment upon prohibition, or attachment in process upon a penal statute; Field v. Workhouse, ub. sup. ; that the statute extends only to process in actions at law, and does not affect process in courts of equity; and therefore, on an attachment out of chancery, the sheriff is not bound to take bail, 1 H. Bla. 468, Studd v. Acton; but he may do it at his discretion, and the bond will be valid at common law; 6 Taunt. 569, Morris v. Hayward; that the act does not extend to arrests made by the sergeant at arms attending upon the house of commons, or upon the president and council of the Marches of Wales; Bac. Abr. Sheriff, O., but it does to a mayor who has the custody of prisoners virtute officii; Cro. Eliz. 76, Widow v. Clerke. himself well, for so long as he shall continue in the office. It is necessary both for the public service, and for the indemnity of the sheriff, that he be removeable by the sheriff. Yet it is true, that under sheriffs have been long in use, and experience proves that many sheriffs cannot well execute it themselves; so this point was resolved, that he was a perfect under sheriff, and so the arrest well made by him, and so an escape upon it. [13 b] 1 Brownl. 63. S. C. Next it was resolved, that a sheriff in making an under 9 E. 4. 31, 32. sheriff, did implicitly give him power to execute all the ordinary offices of the sheriff himself, that might be transferred by the law; as serving of process and executions, and the like. But he could not deal in writ of redisseisin, 6 Co. 12. a. because in that the sheriff is a judge; nor in that case of the writ of waste, where the sheriff is commanded to go 2d. As to the nature and form of the security. The constant usage, since the passing of the act, has been to take security by bond; and a simple contract, which is not of so high a nature as the security by obligation, which is required by the statute, is insufficient. Per Ashurst J. 1 T. R. 421, Rogers v. Reeves. 8 Johns. 98, Strong v. Tomkins. The statute, having prescribed the form of the security, and declared that those taken in other form shall be void, must be strictly pursued. Bonds given to the sheriff colore officii, to obtain from him a favor and indulgence to which a prisoner in his custody is not entitled, and in a form not authorized by the act, are usually called bonds for ease and favor, and are void. Dive v. Manningham, Morse v. Hodsdon, and Clap v. Cofran, ub. sup. Two things are essential to the validity of the bond. 1st. That it shall be made to the sheriff himself in the name of his office. 2d. That it shall be only upon condition written for the appearance of the party at the day, &c. 1st. It must be made to the sheriff, or principal officer who has the return of process; and if it be made to his deputy, under sheriff or bailiff, though the arrest may be made by the latter, the bond will be void. 1 T. Ř. 422, Rogers v. Reeves. 2 Mod. 31, Smith v. Hall. Dyer, 120. a. Thrower v. Whetstone. 2 Mod. 304, Hall v. Carter. So if the name of his office is omitted in the bond it will be void. 1 Saund. 60. n. (3.) 2d. It must be only upon condition written that the prisoner shall appear at the day, &c. contained in the precept. The bond will therefore be void if there be any other condition expressed; Plowd. 68, Dive v. Manningham; Cro. Eliz. 672, Scryven v. Dyther; 1 Saund. 161, a. n. (1); or if it be without any condition; Dyer 120. a. Thrower v. Whetstone; 2 T. R. 575, Samuel v. Evans; or with an impossible condition; 1 Str. 399, Mills v. Bond; Samuel v. Evans, ub. sup. And if a sheriff or his deputy or bailiff take any bond, promise or security by way of indemnity for showing ease and favor to his prisoner, or for any future violation of his duty, within the spirit and meaning of this statute, it will be void. |