of his duty as such sheriff, failed and neglected to pay over to the plaintiff the amount so collected; by reason whereof the said defendant has become and is liable to the plaintiff for the moneys collected as aforesaid, to wit, the sum of dollars, together with twenty-five per cent. thereof, as damages for the non-payment thereof, and interest on the said sum of ..... dollars, at the rate of ten per cent. per month from the said .... day of .... 18..... Wherefore the plaintiff demands judgment against the defendant for the said sum of ......... dollars, and interest thereon at the rate of ten per cent. per month from the day of 18...., and the further sum of dollars, being twenty-five per cent. of said sum dollars, under the provisions of the statute .... of aforesaid, and for costs of suit. 22. Against Deputy. To render a deputy liable, an express promise must be shown. Tuttle v. Love, 7 Johns. 470; Paddock v. Cameron, 8 Cow. 212; and see Colvin v. Holbrook, 2 N. Y. 126; affirming S. C., 3 Barb. 475. 23. Delivery of Execution. It is enough to show the delivery of the execution, without proving the judgment: Elliott v. Cronk, 13 Wend. 35; and see 1 Cow. Tr. 322. 24. Demand. In an action against a sheriff to recover property seized under process, or its value by the owner, it is necessary that the plaintiff should show affirmatively notice and demand before bringing suit; otherwise he cannot recover in such action: Killey v. Scannell, 12 Cal. 73; Boulware v. Craddock, 30 Cal. 190. The rule of the common law is correctly stated in Ledley v. Hays, 1 Cal. 160, and the correctness of that decision is impliedly recognized in Daumiel v. Gorham, 6 Cal. 44; see, also, Codman v. Freeman, 3 Cush. 314; and Ackee v. Campbell, 23 Wend. 371; Brewster v. Van Ness, 18 Johns. 133; Dygert v. Crane, 1 Wend. 534; and see Shepard v. Hoit, 7 Hill, 198. 25. Money Paid Over. Where it is averred in the complaint that the money has been collected, and that defendant has failed to return the execu. tion, it will not be presumed that the money has not been paid over. averment to this effect is essential: Hoag v. Warden, 37 Cal. 522. An 26. Obligation to Pay. So, to say that plaintiff has been obliged to pay the amount of, etc., in consequence of the negligence and acts of the defendant in his office of under sheriff, is good, at least on general demurer; Hughes v. Smith, 5 Johns. 168; even if process is voidable: Walden v. Davison, 15 Wend. 575; Bacon v. Cropsey, 7 N. Y. 195; and see Ontario Bank v. Hallett, 8 Cow. 192; Grosvenor v. Hunt, 11 How. Pr. 355; Ginochio v. Orser, 1 Abb. Pr. 433. 27. Remedy.-An action on the case, or an action for money had and re. ceived, may be maintained, at the option of the plaintiff: Dygert v. Crane, 1 Wend. 534; Shepard v. Hoit, 7 Hill, 198. 28. Statute Penalties. Where a sheriff fails to pay over money collected on execution, the action should be for a false return: Egery v. Buchanan, 5 Cal. 51. The statute penalties against sheriffs, for the non-payment of moneys collected on execution, are only recoverable when the sheriff by his return admits the collection of the money, but refuses to pay it over: Id. 6 Cal. 196; 2 Nev. 378; 14 Cal. 143. 29. Sufficient Averment.-It is enough to say generally that the defendant had collected or embezzled, etc., such a sum, which he had refused, etc., without setting forth the particular items, which would lead to prolixity: Postmaster-General v. Cochran, 2 Johns. 413; Hughes v. Smith, 5 Id. 168. [TITLE.] No. 76. vi. Against Sheriff, for False Return. The plaintiff complains, and alleges: I. That at the time of issuing the execution hereinafter mentioned, the defendant was the sheriff of the county of in this State. .... II. That on the ..... day of 187., at judgment was duly given and made in an action in the Court, in favor of the plaintiff, against one G. W., for [ten thousand] dollars. III. That on the ... day of .... 187.; an execution against the property of the said G. W. was issued upon the said judgment, directed and delivered to the defendant, as sheriff aforesaid. IV. That the defendant afterward, and during the life thereof, levied, under the said execution, on property of the said W. [of the value of ten thousand dollars; or sufficient to satisfy the said judgment, with all the expenses of the execution; or state particulars of property on which he might have levied.] V. That the defendant afterwards, in violation of his duty as such Sheriff, falsely returned upon the said execution, to the Clerk of the county of ..... that the said W. had no property in his county on which he could levy the amount of said judgment, or any part thereof. VI. That by means of said premises, the plaintiff has been deprived of the means of obtaining the said moneys. directed to be levied as aforesaid, and which are still wholly unpaid, and is likely to lose the same. [Demand of Judgment.] 30. Allegation for not Levying when there was an Opportunity, and falsely returning Nulla Bona.-That the defendant neglected to make any levy on the goods and chattels, lands and tenements of the said G, W.; and falsely and fraudulently returned upon the said writ to the said court, that the said G. W. had not any goods or chattels, lands or tenements, in his county. That by reason of the premises, the plaintiff is deprived of his remedy for obtaining payment of his judgment and costs aforesaid, and has wholly lost the same. 31. Another Form of Allegation.-That the defendant, so being Sheriff as aforesaid, and having the said order in his hands to execute, and knowing that the said G. W. was in his county and view as aforesaid, falsely and deceitfully returned on the same order to said court, that the said G. W. could not be found in his county. 32. Cause of Action.-The cause of action for a false return arises only on actual return of the writ; but it relates back to the return day, and the false return is properly alleged to have been on that day: Michaels v. Shaw, 12 Wend. 587. An officer who should refuse to proceed upon a second execution would be liable for a false return: 26 Ill. 221; 31 Ill. 120: 15 Ind. 43. See Howe v. While, 49 Cal. 658. A "fee bill" is a process, and governed by the same rule as executions: 2 Gilm. 678; 5 Id. 96; 17 Ill. 344; 24 Tex. 12. 33. Measure of Damages.—The plaintiff is entitled, prima facie, to the face of the execution: Ledyard v. Jones, 3 Seld. 550; Rome v. Curtiss, 1 Hill, 275; 6 Id. 550; 9 Johns. 300; 10 Mass. 474. And in case of loss of property by negligence, the damages are the value of the property lost: Morgan v. Myers, 14 Ohio, 538; Smith v. Fuller, 14 Ohio, 545. 34. Special Damages. It is not essential to aver any special damage. The amount due on the judgment is, prima facie, the measure of damages: Ledyard v. Jones, 7 N. Y. 550; affirming S. C., 4 Sandf. 67; Pardee v. Robertson, 6 Hill, 550; Bank of Rome v. Curtiss, 1 Id. 275; and see Bacon v. Cropsey, 7 N. Y. 195. 35. That Return was False.-The complaint should show that the return was false, and that the respect in which it was false is material: Kidzie v. Sackrider, 14 Johns. 195; Houghton v. Swarthout, 1 Den. 589. 36. Valid Judgment.-In such action, plaintiff must prove a valid judgment: McDonald v. Bunn, 3 Den. 45. The plaintiff complains, and alleges: I. That the plaintiff is, and at the time hereinafter mentioned was, the owner of [naming the vessel], her tackle, apparel and furniture, and that he had chartered the same to one A. B., for a voyage from .... to .... back, for dollars per week. ...... II. That when said vessel was at .... .... and on her voyage aforesaid, and in the possession of C. D., her master, ap pointed by the plaintiff, the defendant, on or about the day of 187., forcibly seized the same, with her apparel, furniture and cargo, of the value of...... dollars, and brought the same to III. That in consequence thereof the plaintiff has lost the said vessel, her apparel, equipments, and furniture, and the money which he was to receive for the charter for the period of.... weeks, and has been put to great cost and expense in and about asserting and maintaining his rights to said vessel, her tackle and furniture. The plaintiff complains, and alleges: I. That at the time of issuing the execution and of the escape hereinafter mentioned, the defendant was the Sheriff in this State. of the county of..... II. That on the ...... day of action in the [District Court of the District, county of ..... 187., in an Judicial in this State], brought by this plaintiff against one A. B. for embezzlement [or other cause authorizing arrest], this plaintiff recovered judgment, duly given by said Court, against said A. B., for. dollars. for.... cution against the property of said A. B. was duly issued by the Clerk of said Court on said judgment, and thereafter duly returned wholly unsatisfied. .... day of.... 187., IV. That thereafter, on the an order of arrest was issued by the Judge of the said Court [or by the County Judge], against the person of said A. B., and then directed and delivered to the defendant as said Sheriff, whereby he was required to arrest said A. B. and commit him to the jail of said county of until he should be discharged according to law. V. That thereafter the defendant, as such sheriff, arrested said A. B. and committed him to jail, pursuant to said execution, and order of arrest. VI. That thereupon the plaintiff entered into an under taking, with good and sufficient securities, duly executed and approved, conditioned for the payment of the expenses of said A. B. for necessary food, clothing, and bedding [or state a deposit for this purpose]. VII. That in violation of his duty as such sheriff, he has since, to wit, on the .... day of 187., without the consent or connivance of the plaintiff, permitted said A. B. to escape, to the damage of the plaintiff ... dollars. Wherefore the plaintiff demands judgment against the defendant, according to the statute, for the debt [or for damage, or sum of money] for which such prisoner was committed, to wit, ... dollars, with interst from, etc. NOTE. "The Political Code provides, sec. 4182: A Sheriff who suffers the escape of a person in a civil action, without the consent or connivance of the person in whose behalf the arrest or imprisonment was made, is liable as follows: "1. When the arrest is upon an order to hold to bail or upon surrender in exoneration of bail before judgment, he is liable to the plaintiff as bail; "2. When the arrest is upon an execution or commitment to enforce the payment of money, he is liable in the amount expressed in the execution or commitment; "3. When the arrest is on an execution or commitment other than to enforce the payment of money, he is liable for the actual damages sustained; "4. Upon being sued for damages for an escape or rescue he may introduce evidence in mitigation and exculpation." Sec. 4183. "He is liable for a rescue of a person arrested in a civil action, equally as for an escape." Sec. 4184. 'An action cannot be maintained against the Sheriff for a rescue, or for an escape of the person arrested upon an execution or commitment, if after his rescue or escape and before the commencement of the action, the prisoner returns to jail, or is retaken by the Sheriff." 37. Arrest for Contempt.—A complaint in an action against a sheriff, for the escape from his custody of a person arrested by him upon a process for contempt, which alleges that the sheriff "suffered and permitted such person to escape and go at large," states a voluntary and not a negligent escape; and an answer which avers that such person may have "wrongfully and privily, and without the knowledge, permission, or consent of this defendant, escaped," etc., and that "if he did so escape, he afterwards" returned into custody, etc., is insufficient as a pleading, as it does not deny, either generally or specifically, the allegation that the sheriff permitted the prisoner to escape: Loosey v. Orser, 4 Bosw. 391. 38. Authority to Release.-The general authority of the attorney as such, is not sufficient to authorize the sheriff to discharge the prisoner upon his consent: Kellogg v. Gilbert, 10 Johns. 220. 39. Committed.-That he had arrested the debtor and detained him in |