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dicted and overcome by other evidence. Code of Civil Procedure, section 1833.

A sheriff's return that “John Moore, plaintiff's attorney, was the purchaser at $180, and has paid the costs,” means that Moore purchased as attorney, for plaintiff, and the sheriff may so testify, and that he made the deed to the plaintiff and not to the attorney. Moore v. Martin, 38 Cal. 429.

The return of the officer to a writ for possession is only prima facie evidence as to the fact of possession. Coburn v. Goodall, 72 Cal. 505.

The return of the sheriff upon execution showing a demand upon the officers of a defendant corporation for payment of amount named in execution, and an answer by them that no money or property of the corporation is in their possession, and showing the execution unsatisfied, shows a sufficient demand for the attached property to sustain an action upon a bond given for its release, after notice by plaintiff to the sureties of non-delivery of the attached property and demand of payment. Hammond v. Starr, 79 Cal. 559. Liability of sheriff

SEC. 92. If a sheriff does not return a process or notice in his possession, with the necessary indorsement thereon, without delay, he is liable to the party aggrieved for the sum of two hundred dollars, and for all damages sustained by him.

Section 4179, Political Code, and section 96 of former county government acts.

In an action on a sheriff's official bond for

damages for negligence in failing to return an order of sale of mortgaged property, whereby plaintiff was prevented from collecting the debt for the deficiency, it is not enough for the defendants to show that the return was found in the clerk's office without a file mark, among a bundle of bulky papers in an out-of-the-way place, there being a failure of evidence either in the sheriff's or clerk's office tending to show that a return had been made or filed. Where proof of filing can be made by parol, the proof must show an actual delivery to the clerk, or one of his deputies, for the purpose of filing, and the proof should be clear and positive. In such action, the sheriff being charged with a specific act of negligence, there can be no presumption that the sheriff's official duty has been performed, since such presumption in his favor would result in a counter presumption that the clerk had not performed his official duty. And where it is shown that the sheriff acted by deputy, it is not competent to prove that the deputy was a competent, prudent and careful man, the failure to deliver the return to the clerk appearing to be the fault of the sheriff's bookkeeper.

The measure of damages in such cases is the actual loss incurred by the plaintiff, if there is no prayer for recovery of the penalty imposed by statute upon the sheriff for failure to make a return. In the absence of statutory provision, the measure of damages in this class of cases is the actual loss incurred by plaintiff. In this state the statute imposes a penalty

V.

upon the sheriff of two hundred dollars, but this does not apply to the sureties. Boyd v. Desmond, 79 Cal. 256.

The two hundred dollar penalty cannot be enforced against the sureties. Glascock Ashman, 52 Cal. 494. Neglect or refusal to execute writ.

SEC. 93. If the sheriff to whom a writ of execution is delivered neglects or refuses, after being required by the creditor or his attorney, the fees having first been paid or tendered, to levy upon or sell any property of the party charged in the writ, which is liable to be levied upon and sold, he is liable to the creditor for the value of such property.

Section 4180, Political Code, and section 97 of fornier county government acts.

Sales by sheriff, sections 691-697, Code of Civil Procedure. Property liable to seizure may be sold, but not property exempt from execution. Spencer v. Long, 39 Cal. 700.

Nor property of third person. Goodyear v. Williston, 42 Cal. 11. The seizure and sale of such property makes the sheriff a tresspasser and liable for the value of the property.

Sheriff's liability for failure to levy on property when directed. Glascock v. Ashman, 52 Cal. 494.

See as to insufficient excuse for not levying execution, Howe v. White, 49 Cal. 659.

Where the sheriff has received an order of sale on a decree of foreclosure and an appeal has been taken in the case and the appeal bond is insufficient to stay proceedings, the court may make an ex parte order directing the

son.

sheriff to proceed. Societie D'Epargnes v. McHenry, 49 Cal. 351.

Indemnity bond may be required by sheriff, section 689, Code of Civil Procedure. Neglect or refusal to pay over money.

SEC. 94. If he neglects or refuses to pay over, on demand, to the person entitled thereto, any money which may come into his hands by virtue of his office (after deducting all legal fees), the amount thereof, with twenty-five per cent. damages, and interest at the rate of ten per cent. per month, from the time of demand, may be recovered by such per

Section 4181, Political Code, and section 98 of former county government acts.

And the sheriff's office becomes vacant. Section 99, post, and 4186, Political Code.

Demand should be made, and if a larger sum is demanded than is due, the penalty provided for in the statute cannot be recovered in an action against the sheriff. Shumway v. Leakey, 73 Cal. 262. Liable for escape of prisoners.

SEC. 95. A sheriff who suffers the escape of a person arrested in a civil action, without the consent or connivance of the party in whose behalf the arrest or imprisonment is made, is liable as follows:

1. When the arrest is upon an order to hold to bail, or upon a surrender in exoneration of bail before judgment, he is liable to the plaintiff as bail.

2. When the arrest is on an execution or commitment to enforce the payment of money, he is liable for 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.

Section 4182, Political Code, and section 99 of former county government acts.

Arrests on civil process--superior court: sections 478 et seq., Code of Civil Procedure. Justice's court: section 864, Code of Civil Procedure. Exemption of witnesses from arrest, section 2067, Code of Civil Procedure.

Attachment for contempt: section 1214, Code of Civil Procedure.

Liability as bail: may discharge himself therefrom by giving bail at any time before judgment, section 501, Code of Civil Procedure.

Liability for rescue, see next section.

Escape of criminals, see Penal Code, sections 105-110.

SEC. 96. He is liable for the rescue of a person arrested in a civil action, equally as for an escape.

Section 4183, Political Code, and section 100 of former county government acts. Section 501, Code of Civil Procedure. When not liable.

SEC. 97. An action cannot be maintained against the sheriff for a rescue, or for an escape of a person arrested upon an execution or commitment, if, after his rescue or escape, and before the commencement of the action, the prisoner returns to the jail, or is retaken by the sheriff,

Section 4184, Political Code, anal section 101 of former county government acts. Authority must be in writing.

SEC. 98. No direction or authority by a party

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