Chap. XIII. of the registrar, change its name, and upon such change being made, the registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; but no such alteration of name shall affect any rights or obligations of the company, or render defective any legal proceedings instituted or to be instituted by or against the company, and any legal proceed. ings may be continued or commenced against the company by its new name, that might have been continued or commenced against the company by its former name. Company has same rights as private trader. A limited company having once obtained a registered name, has the same rights and limitations as to trading under that name, as an individual trading in his own name (p). There is nothing in the Companies Act, 1862, to affect the right of a company registered under a particular name to an injunction restraining another company which, notwithstanding the prohibition of sect. 20, against identity of names, has been registered under an identical or a similar name, if it is proved that that name is calculated to deceive; the principles applicable to individuals trading under identical or similar names applying equally to companies (p). Thus the plaintiffs, the Guardian Fire and Life Assurance Company, who were established in 1821 and carried on the business of fire and life insurance at 11, Lombard Street. A company called the Guardian Horse and Vehicle Insurance Association (Limited), was established in 1877, and carried on, at 31, Lombard Street, the business of insurance of horses and vehicles until the year 1880, when the company transferred its business to the defendants, a new company incorporated in March, 1880, and called the Guardian and General Insurance Company (Limited). This new company, in addition to insuring horses and vehicles and persons against accident, proposed to engage in fire insurance business. It was held in an action by the plaintiffs to restrain the defendants from carrying on their business so as to deceive, that the plaintiffs' and defendants' names were so similar as to lead to confusion, and that an injunction would have been granted to restrain the defendants from carrying on business under the name of the Guardian and General Insurance Company (Limited), had they (p) Merchant Banking Co. of London v. Merchants' Joint Stock Bank, 9 Ch. D. 560; 47 L. J. Ch. 828, not given an undertaking to change their name to the Guardian Chap. XIII. Horse, Vehicle and General Insurance Company (q). title of book. There may be a trade-mark in the title of a book, and an action Trade-mark in will lie against a person using the title of a book already published, for the purpose of passing off such book as that of a former author (r). (q) Guardian Fire and Life Assurance Co. v. Guardian and General Assurance Co., 50 L. J. Ch. 253; 43 L. T. 791; see Colonial Life Assurance Co. v. Home and Colonial Assurance Co., 33 Beav. (r) Dicks v. Yates, 18 Ch. D. 76; 50 N Chap. XIV. Powers and duties of sheriff. Judicial functions. As returning officer. CHAPTER XIV. THE HIGH SHERIFF. SECTION I.-HIS DUTIES AND LIABILITIES. THE powers and duties of the high sheriff are various. They are either as judge; as the keeper of the Queen's peace; as the Queen's bailiff; or as ministerial officer of the High Court of Justice. In his judicial capacity the high sheriff has to hold a court for the election of knights and coroners of the shire; and has also a judicial power in the assessment of damages under writs of inquiry, both in actions brought in the Queen's Bench Division, when judgment is allowed to go by default, and also in compensation cases under the Lands Clauses Consolidation Act, 1845 (a), and the Railway Clauses Consolidation Act, 1845 (b). The high sheriff, when acting in his capacity as returning officer, is bound to exercise a discretion in the admission or rejection of votes, and if he improperly refuses to accept or hinders an elector from giving his vote, an action will lie against him for so acting (c). Where, however, the sheriff has acted bonâ fide he is not responsible for an erroneous judgment, for, "it cannot be contended," observes Abbott, C.J., "that he is to exercise no judgment, no discretion whatever, in the admission or rejection of votes; and he could not discharge his duty without great peril and apprehension, if, in consequence of a mistake, he became liable to an action" (d). A sheriff, when presiding at an election of knights of the shire, is justified in giving into custody any person creating a disturbance and hindering a constable in the execution of his duty (e). (a) 8 & 9 Vict. c. 18. (b) 8 & 9 Vict. c. 20. (c) Ashby v. White, Ld. Raym. 938; 1 Smith, L.C. (d) Cullen v. Morris, 2 Stark. 587. (e) Spilsbury v. Micklethwaite, 1 Taunt. 146. peace. As the keeper of the Queen's peace, he is, both by common law Chap. XIV. and special commission, the first man in the county and superior As keeper of in rank to any nobleman therein, during his office (f). He may the Queen's apprehend and commit to prison all persons who break the peace, or attempt to break it. He may ex officio pursue and take all traitors, murderers, and felons, and commit them to gaol for safe custody. He is also to defend his county against any of the Queen's enemies when they come into the land; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse commitatûs or power of the county; and this summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning under pain of fine and imprisonment (g). bailiff. As the Queen's bailiff, it is the sheriff's duty to preserve the As Queen's rights of the crown within his bailiwick (h). He must seize to the sovereign's use all lands devolved to the crown by attainder or escheat (i), and must seize and keep all waifs, wrecks, and estrays and the like, unless they be granted to some subject. As its ministerial officer, the sheriff is bound to execute all writs directed to him by the High Court of Justice, and if he negligently or improperly discharges such duty, he is liable to an action at the suit of the party aggrieved (k). As ministerial officer of the High Court of For the performance of these various offices, the sheriff has Under sheriff. under him an under-sheriff, and bailiffs. The under-sheriff usually performs the duty of the office, except in the few instances where the personal presence of the high sheriff is necessary. The under-sheriff, however, is only to a certain extent recognized by the law, which holds the sheriff himself civilly responsible for all acts done or omitted by his under-sheriff or bailiffs (1). By the 3 & 4 Wm. 4, c. 99, it is provided, that every sheriff 3 & 4 Wm. 4, (f) 1 Roll. Rep. 237; 2 Black. Com. 635. (9) Such are the extensive powers and duties of the high sheriff, in his capacity of keeper of the Queen's peace, as laid down in Blackstone's Commentaries. At the present time they have almost entirely fallen into disuse or are executed by other authorities. One of the principal personal duties which the high sheriff is now called upon to perform is to attend upon Her Majesty's judges, when they come circuit. (h) A word introduced by the Norman sovereigns, in imitation of the French, whose territory was divided into bailiwicks, as that of England into counties, 2 Black. Com. 637. (i) See 3 & 4 Wm. 4, c. 99; and 2 (j) See Judicature Act, 1873, s. 96. (7) See authorities cited in last note. c. 99. Chap. XIV. shall within one calendar month next after the notification of his appointment in the Gazette, by writing under his hand, nominate some fit person to be his under-sheriff, and transmit a duplicate thereof to the clerk of the peace, to be by him filed among the records of his office; and that every under-sheriff (except of London and Middlesex) shall before he enter on the execution of his office, take the oath of office. 3 & 4 Wm. 4, c. 42, s. 20. Duty of sheriff in the execution of writs. Abolition of imprisonment for debt. Debtors Act, 1869, 32 & 33 Vict. c. 62. By the 3 & 4 Wm. 4, c. 42, s. 20, it is enacted that every sheriff shall appoint a sufficient deputy, having an office within a mile of the Inner Temple Hall, for the receipt of writs, granting warrants thereon, making returns thereto, and accepting all rules and orders made as to the execution of any process or writ directed to the sheriff (m). The law has always held the sheriff strictly, and with much jealousy, to the performance of his duty in execution of writs, both from the danger there is of fraud and collusion with defendants, and also because it is a disgrace to the Crown and to the administration of justice, if the King's writs remain unexecuted, as appears by statute of Westminster 2, c. 39 (n), where it is said with respect to sheriffs "multotiens etiam falsum dant responsum, mandando quod non potuerunt (exequi) præceptum regis propter resistentiam &c. Caveant vicecomites de cætero quod hujusmodi responsio multum redundat in dedecus domini regis et corona suæ" (o). By the Debtors Act, 1869, 32 & 33 Vict. c. 62, arrest and imprisonment for debt have been abolished, except in the following instances: 1. Default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any con tract. 2. Default in payment of any sum recoverable summarily before a justice or justices of the peace. 3. Default by a trustee or person acting in a fiduciary capacity, and ordered to pay by a court of equity any sum in his possession or under his control. 4. Default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such, or in pay (n) The delivery of a writ to the deputy is a delivery of the writ to the sheriff, Woodland v. Fuller, 11 A. & E. (n) 13 Edw. 1. (o) Howden v. Standish, 18 L. J. C. P. 33; 6 C. B. 520. |
