Lately Printed for J. Walthoe.

THe Pleadings and Arguments of Mr. Finch and Sir Robert Sawyer, the Kings Solicitor and Attorney General; and Sir George Treby, the Recorder of London, and now Lord Chief Justice of the Common Pleas, and the late Chief Justice Pollexfen, for the City of London; with the Judg­ment Entred thereupon. The whole Proceedings faithfully taken from the Records. Wherein is comprized all the Learning of Corporations, whether Forfeitable, how, and for what; and whether a Corporation can be surrendred. Which Points do not only concern the City of London; but all other Corporations in England. In Folio, price 6 s.

Lex Custumaria; Or, A Treatise of Copy-hold Estates, in respect of the Lord and Copyholder. Wherein the Nature of Customs in general, and of particular Customs, Grants and Surrenders, and their Constructions and Expositions in reference to the thing granted or surrendred, and the Uses of Limitations of Estates, are clearly Illustrated. Admittances, Presentments, Fines and Forfeitures are fully handled, and many Quaeries and Difficul­ties by late Resolutions setled. Leases, Licenses, Extinguishments of Copy-hold Estates, and what Statutes extend to Copy-hold Estates are explain'd. And also of Actions by Lord or Tenant, and the manner of declaring and pleading, either gene­rally, or as to particular Customs, with Trials and Evidence of Custom, and of Special Verdict. To­gether with a Collection of many Cases, wherein a Copy-holder may receive relief in the Court of Chancery. To which are annexed Presidents of Con­veyances, &c. In Octavo, price 5 s.

THE Compleat Sheriff: Wherein is set forth, His OFFICE and AUTHORITY; With Directions, how and in what manner to Execute the same, according to the Common and Statute Laws of this Kingdom, which are now in force and use: And the Judgments and Resolu­tions of the Judges in divers late Cases, in the several Courts of Westminster, relating thereunto.

Likewise of Ʋnder-Sheriffs and Their Deputies; and where the High-Sheriff shall be Answerable for their Defaults, and where not, &c.

Together with the Learning of

  • Bail Bonds; with an Ex­plication of Stat. 23 H. 6. cap. 10. and Pleadings thereon.
  • Retorns of Writs, Reme­dies against Non Retorn and Faux Retorn, Habeas corpus, Venires, Challenges and Enquiry of Damages. Prisoners and Prisons. Execution by Fieri fac', Elegit, &c.
  • Escapes, Actions and Pleadings therein. Fresh Pursuit, and other Pleas. Attachment, Amercia­ment: Actions, Decla­rations and Pleadings on the Sheriffs Nonfesance or Male-fesance.
  • Customs of London, as to Prisons, Courts, Process, Sheriffs Fees, Extortion, Sheriffs Accompts, &c.

To which is added, The Office and Duty of Coroners.

— Deus nobis haec otia fecit.

London, Printed by the Assigns of R. and E: Atkyns, Esquires; for Iohn Walthoe, and are to be sold at his Shop in Vine-Court, Middle-Temple. MDCXCVI.

The PREFACE.

WHEN Sir Edward Coke in his first Institutes, fo. 168. tells us, That the Sheriff hath Triplicem Custo­diam: (1) Vitae Justitiae. (2) Vitae Legis. (3) Vitae Reipublicae, he thereby gives us a short, but pithy Description of this Important Office. And if Execu­tion be the Life of the Law (as without doubt it is) it seems to be seated in the Sheriff, as in the Heart, which is primum vivens, and ultimum moriens. Original Process moves and is dire­cted to him; Subsequent Proceedings are Circulated in him, and at last are Finished and compleated by him.

This gives us to Understand, not only the Importance, but the Exten­siveness of the Sheriffs Office. Espe­cially when we Consider how many Thousands of Families have Suffered irreparable Ruin by the Ignorance or Carelessness (not to say worse) of She­riffs and their Officers; Nay, they [Page] themselves failing in the due discharg of their Duty, have oftentimes ren­dred themselves Obnoxious to charga­ble Payments and difficult Defences.

Certainly then, to understand well the Law about Sheriffs, and their fit Management and Demeanor in all the Branches and Circumstances re­lating to their Office, is a thing of as great Consideration as any that can be propounded to us, as Members of a Body Politick.

We have indeed many that have Treated of some Parts thereof ( inter alia) as Crompton, Kitchin, Greenwood &c. But I know but two that have design­edly Undertaken this Title.

Mr. Dalton (a Person of Great Learning and Industry) has discover­ed much Reading in our Old Books, and is also of very great use to direct us in CASES that may seldom and rarely happen; and yet there is much of him now Antiquated, and divert­ed into other Channels. The Re­ceiving Fee-farm Rents, Waifs, Estrays, [Page] Deodands, Wards bona Felonum, &c. seldom or never troubling the She­riff, having been Extinct or Aliened by Act of Parliament, or granted to Lords of Mannors, or other Persons.

Besides, some things are there deli­vered for Law, and so might pass in his time, which have received quite con­trary Resolutions; and Thousands of Cases have hapned since, which are not to be found in him, nor in the least mentioned by him. Neither has he been so happy as we could wish, to Treat Methodically of Rescousers, Escapes, &c. which make a great Fi­gure in our Books; and he has totally omitted (unless it be sparsim) the proper Remedies against the Non­seasance or Male-feasance of the Sheriffs and their Officers. I have, in many Titles, directed you to refer almost wholly to him, as not being willing to Transcribe them; but they are such as are Common, and known of course, or else seldom or never practicable.

Mr. Wilkinson is (for so much as he hath Undertaken) Neatly and Judi­ciously done: But as to the Office of SHERIFFS, tho' the Book bears that Title; yet it is the least part thereof, not exceeding above Four printed Sheets; so that we cannot think that sufficient Direction to us. Nor have either of them given any Directions as to the Laying of Actions, Declara­tions, Pleadings, and Trials or Evidence; and therefore I have been the more careful to place them under their proper Titles.

Upon these Reflections, it seems not Unreasonable to imagine, That a Treatise of this Nature may find some Acceptance, and meet with a favourable Reception, as well from Gentlemen (who are, or may be capable for this weighty Office, and thereby be better enabled to Serve their King and Country, and also Themselves) as from the Students and Practisers of our Common Law.

THE CONTENTS.

CHAP. I. OF Counties. When the Realm was divid­ed into Counties. Vicecomit. notatio nominis. Sheriffs how made in former times, how at this day, the Sheriffs [...]onour Power and Priviledge. His Office not apportionable. What he may do as Conservator pacis. How favoured in the Execution of his Office. Of his Assistance. In what Things and Cases he is restrained. Not to Let County or Hun­dred to Farm, &c.

CHAP. II. What the Sheriff must do at the entrance into his Office. The Form of the Writ of Dis­charge of the Old Sheriff. The Form of bis Oath. How and before whom he is to be Sworn and the Retorn. The Cities and Towns in England which have Sheriffs, and [Page] how many each hath. Of Delivery of Writs and Prisoners by the Old Sheriff to the New. Till what time the Old Sheriff or his Officers may Act. What's to be done in Case of the Kings Death. What shall be said a good delivery of Prisoners, and how to be made. The Form of the Indenture of setting over the Prisoners and the Writs. The Form of the Retorn of those that have been execu­ted by the Old Sheriff. What Acts may and must the Old Sheriff do after his Discharge, and what remedy against him for a Misde­meanor in his Office. When and where the New Sheriff must Read his Patent, and make his Deputies in the County and Courts above. How and in what Cases or not, his Office is determined before his Year be out.

CHAP. III. Of Under-sheriff. His Nature and Oath. In what Cases the Sheriff might execute the Office in person. He cannot abridge the Under-sheriffs Power Of the Sheriffs Deputy in the County and Courts above. Pleading by the Deputy. Of Rescue from him. What Bonds or Covenants between the High-She­riff and the Under-sheriff, Bayliff, Gaole [...], the High-sheriff shall be answerable for or not, and what Action shall be brought against the High sheriff, Under sheriff or Gaolers, Cases and Resolutions about the Rule Respon­deat [Page] Superior. Where and in what Cases the Lord of a Franchise shall be answerable. Of Tryalls, by the Sheriff, or Sheriffs Cer­tificate, or by the Record.

CHAP. IV. Of Bayliffs. Of Bayliffs of Hundreds, their Nature, Office and Oath. Of Special Bayliffs, and of Pre­mises on making of Special Bayliffs to save harmless from Escapes. Of Bayliffs of Franchises, their Nature, Power, Office. And of Retorns by them, the manner of Pleading by Bayliff of Franchises. In what Cases the Sheriff may enter into the Liberty of Bayliffs of Fees or Guildable.

CHAP. V. Of the County Court. The Nature, Style: the Jurisdiction as to the Summons it holds. Plea of time and place. The Process, the Forms of the Original Process. Of Execu­tion of County Clerk. Adjournment of Court. Of Replevin. The Sheriffs Office and Demea­nor therein, and the Retorns, and what are good or not. Pone Withernam, the manner of Replevying. The Retorno habendo. Second Deliverance. Property. Recordare. Privileges in Replevin. The Form of the Bond for Security, of Accedas ad Curiam & Resalo. [Page] Of the Writ of Justicies of the Sheriffs Town. The Jurisdiction and Pleadings.

CHAP. VI. Of the Original Process in real Actions, and in personal Actions, with the Retorns. Sum­mons and Attachment of Mean Process. What Arrest by the Sheriff or Bayliff shall be good or not. Of the Bayliffs shewing his Warrant, as to the time of the Arrest be­fore or after the Retorn, in respect of the persoons Arrested of Non omittas, who are Priviledged or Protected from Arrests, or not in regard of Person or Courts. Where Arrest shall be lawful or not, in respect of the Warrant. Of Warrants to Special Bay­liff, and to known Bayliffs. Of Pledges de prosequendo.

CHAP. VII. Of Bail. Of Special Bail. Who shall take Bail or not. Of Bail Bondss. Explication of the Statute 23 H. 6 c. 10. the design of the Statute. The Form to be observed ac­cording to the Statute. What Obligations and Conditions are within this Statute or not, in respect of the Persons and Officers to whom they are made, in the respect of the Form, of the Courts and of the Sure­ties. The meaning of the words Colore Officij. Of the Statute 23 H. 6. being [Page] pleaded, and when and how to be pleaded. What appearance to a Sheriffs Bond is good or not. Of the Sheriffs Retorn on taking Bail. Of Insufficient Bail. Of refusing suf­ficient Bail, and the Remedy against the Sheriff for so doing. The Sheriff pleading this Statute in Actions brought against him. Of Bail Bonds being discharged or assigned. Of other Bonds besides Bail Bonds entered into the Sheriff as for being a true Prisoner, saving harmless of Escapes, Fees, &c. and the Pleadings thereto, with all the late Cases and Resolutions relating thereunto. In what other Cases the Sheriff may Bail or not.

CHAP. VIII. Of Retorns of Writs. When they may be retorn­ed. General Cases and Maxims of Retorns. What Writs must be retorned, and what need not. What shall be a good Retorn of Writs, or how Retorns shall be made, in respect of the person that makes the Retorn, as Sheriffs, Bayliffs of Franchises, &c. in re­spect of the Forms, and wherein sufficient Retorns are aided, where Retorns shall be void, for the uncertainty or repugnancy. What shall be a good Retorn against the ad­mittance of the Party or not. What shall be a sufficient excuse for the Sheriffs Non retorn of a Writ and what not. What Acts, Pro­cess or Appearance shall be good before the Retorn. The Penalty on the Sheriff by the [Page] Court for Non Retorns. Where Sheriffs Re­torns shall be amended and where not.

CHAP. IX. Remedy against the Sheriff for a false Retorn. Where and in what Cases, and what Action lies against him for false Retorn. Where such Actions are to be brought, how to be laid, and the manner of declaring therein. Of the Reason of the Retorn of a Cepi Corpus on Bail taken; Where Action lies against the Sheriff or Bayliff of a Franchise, and which of them upon a false Retorn. Remedy against the Sheriff for not retorning the Writ, or against his Bayliff, or against the Bayliff of Franchise. Of laying the Action and declar­ing thereupon. Where and in what Cases a Man may Traverse the Sheriffs Retorn or not.

CHAP. X. Of Venire facias, Habeas Corpus, Jurat' Distringas. What Retornes shall be good on a Venire or not. Of Amendments of Venires &c. Of Tales.

CHAP. XI. Of Habeas Corpus. The several sorts, and the consequence thereof. Of the Retorns of Habeas Corpus, by the Sheriff, &c. and in respect of the Courts. Rules on Habeas Corpus. Who to pay the Charges. The Forms of the Retorns. Retorns of Certi­orari.

CHAP. XII. Two sorts of Juries. Of Retorns of Jurors. And by whom to be retorned. What manner of persons shall not be retorned on. Juries, and how such persons shall be discharged; where, when and how Persons Exempt shall have Action against the Sheriff for Impannelling them. Of retorning trop petit Issues, of levying the Issues. Of other Erroneous Pro­ceedings and Misdemeanors of Sheriffs about and concerning Jurors. What Estate every Juror must have by the late Statute of 4 & 5 of William and Mary. Of Challenges, and the several Sorts and Causes of Challeng, and what are good or not, and when to be taken.

CHAP. XIII. Of a Writ of Enquiry of Damages, and the Sheriffs Demeanor therein, in what Cases a new Writ shall be granted or not. By whom to be executed or not. The time of Executing it. The Form of the Retorn of a Writ of Enquiry of Damages.

CHAP. XIV. Where and in what Cases the Sheriffs Retorn of a Devastavit shall be good or not. When such Retorn to be made. How the Party may Discharge himself of a Devastavit by Plea. And the late practise, and not by Inqui­sition.

CHAP. XV. Of Prisons; To whom they belong, and the place where to be kept. Who may be Keepers of Gaols, &c. and how Forfeitable. Of the Sheriff of Londons Prison, and of the Marshalsea. Of the Sheriffs Demeanor towards Prisoners. Of the Prisoners Mis­behaviour. What payment of a Debt to a Gaoler shall be good. And of those that breake Prison.

CHAP. XVI. Of Executions. When one may be said to be in Execution, or not; and when without Prayer, or not. To what Sheriff, and of what Place or County shall Execution be awarded of a Capias ad satisfaciendum. For what, and against whom [...] lies; and the Sheriffs Demeanor therein, and Retorns thereupon.

CHAP. XVII. Of Fieri facias. What Goods, and of whom, shall be taken in Execution by Fieri fac', or not. After the Sheriff has seised the Goods, how he stands in the Eye of the Law, either to bring Acti­ons for the Tortious taking them away from him, or to make satisfaction to the party who Recovered. What Remedy against the Sheriff for the Money, to the value of the Goods taken in Execution, or not; and how to be pursued. The Sheriffs Office and Demeanor in Executing a Fieri facias. Of the Sheriffs selling Goods on the Fieri fac', and of the Venditioni exponas and the Retorn. What shall be a good Retorn of the Sheriff on a Fieri facias, or not Of Restitution to Lands or Goods, seised by the Sheriff after Re­versal of the Judgment, and after Sale. [Page] Of the Sheriffs selling a Term for Years, taken in Execution, and when such Sale shall be good, or not. Difference between the extent of a Term on Elegit, and sale by Fieri facias. Whether a Fieri facias, on a Judgment in the Kings Bench, shall go into Wales.

CHAP. XVIII. How the Sheriff is to Demean himself in gi­ving Possession and Seisin upon the Writs of Habere fac' possession', or Seisinam, as to the manner of Executuing, and the Retorn. Of a Supersedeas. Where it shall stay the Sale of Lands or Goods, or not. What amounts to a Supersedeas. Where and when a Writ of Error is a Supersedeas. Of Audita Querela.

CHAP. XIX. Of Elegit. The Sheriffs Office therein. The difference of it as to Lands and Goods, how to be ma­naged by the Sheriff that it may be well Executed, and what things may be Ex­tended, or not. Of the Inquisition. Re­torns of Elegit, how to be made. Where New Elegit shall be had. Of Extent by the Bayliff of a Liberty. The Sheriffs Office about Execution for the King's Debt. Of Statute Merchant, Staple, Recognizance, [Page] Liberate. The differences of the Retorns. Retorns of Scire fac. The Sheriffs demeanor as to Outlawries and Capias Utlegatum; and the Retorns.

CHAP. XX. Of Rescous. Where and in what Cases Action lies against a Sheriff for a Rescous; and what Action. Diversity between Mean Process and Exe­cution. Where the Sheriff makes himself chargable by his Retorn. Where, and what Remedy against the Rescouser by Action, or Indictment. Of Retorns of Rescous, what is good, or not. Of Laying the Action, and how to Declare. Of Rescous, and Pleadings in it. The Venue in this Action for a Rescue.

CHAP. XXI. Of Escapes. Some Maxims and Diversities premised. Escapes as to Mean Process and Execution. What shall be or amount to an Escape of a Prisoner out of Execution, or not. Of Escapes in respect of the Old and New Sheriffs, and of the Prisoners being deli­vered over. What thing or act shall excuse an Escape; or in what Cases the Sheriff or Gaoler shall not be Answerable for an [Page] Escape; and of Erroneous Process Excu­cusing, and how far and in what Cases. Where the Escape of one shall not be a Discharge of the other; or where the other shall have Audita Querela or not. Of Actions of Debt, or on the Case. by the party against the Sheriff for an Escape. Who shall have such Action, and to whom it shall be said an Escape, or not, at Election.

CHAP. XXII. Action for Escape by Executors and Admini­strators, where it lies, or not. Against whom Action of Escape lies. Where Execu­tion shall be after Execution on Escape, or not; and where it shall not be a Discharge of Execution, but that he may be retaken again. Of laying the Action, and manner of Declaration in this Action: Where the Sheriff shall have his Acti [...]n against the Prisoner that Escapes, and how to Declare against him.

CHAP. XXIII. Of Pleadings by the Sheriff to Actions for Escape. What shall be said a sufficient Fresh Pursuit, and where upon Fresh Pursuit he may retake the Prisoner, or not; and where the Prisoner, upon his being retaken, shall have his Audita Querela, or not. Fresh [Page] Pursuit, how to be pleaded. Pleading the Statute of Limitations: Pleading acknow­ledgment of Satisfaction on Record by the Plaintiff, or Accord with Satisfaction. Nultiel Record pleaded, and how. Escape by Consent of the Plaintiff, and by the Sheriffs License. Traverse in the Pleadings. Super­sedeas, Protection, Priviledge. Bar by Voluntary Escape. Venue, Issue, Evidence, Special Verdict in Actions for Escapes. Of the Escape of Felons.

CHAP. XXIV. What Acts of the Sheriffs, Bayliffs, &c. shall amount to a False Imprisonment, or not. Pleading by Sheriffs to Actions of Trespass, False Imprisonment. The Rules of Pleading in such Case. Justification by Mean Process, as to the Warrant, Time, Place. Quae est ad eadem Transgressio, what it refers to. Tra­verse of the Time, Place. Pleadings and Justification by Execution: By Process out of an Inferior Court of Record, and how to be pleaded.

CHAP. XXV. Of Attachments against the Sheriff, where and in what Cases it lies, or not: And where against him for a thing done out of his Office. Attachment of Money in the Sheriffs hand. Of Attachment against others, and [Page] against the Goods and the Retorn. Of Amer­ciaments: Where, and in what cases the Sheriff is to be Amerced.

CHAP. XXVI. Remedy against the Sheriffs Bayliffs, &c. for Male-fesance, as imbezelling an Exigent. For entring into a Corporation which had Re­torna Brevium. For not delivering a Super­sedeas to the New Sheriff, for concealing or substracting a Writ. (Bayliff of a Liberty chargable for his Servant, not for the Gaoler.) For refusing sufficient Bail, and forcing to find extraordinary Bail. For taking Insuffi­ent Bail. For not bringing Money levied by Fieri fac' into Court, and the Statute of Limitations pleaded.

CHAP. XXVII. Of the Sheriffs Demeanor in Assignment of Dower, and the Retorn. The Proclamations. The Sheriffs Office about Partition. His De­meanor in the Writ De Ventre inspiciendo. About Retorning a Force. About a Vi Laica removenda. How the Sheriff shall demean himself in a Writ of Enquiry of Waste, and of the Retorns thereof. Of the Writ of Estrepement, and the Retorn of it. The She­riffs Office in an Excommunicato capiendo.

CHAP. XXVIII. Of the Retorn of Clericus beneficiatus, and of other Retorns as to Clerks. The Sheriffs Office in a Quare Impedit. The Sheriffs Duty at the Assizes; and at the General Quarter Sessions of the Peace. The Sheriffs Office as to Election, and Retorning of Burgesses and Knights to the Parliament. The Form of the Indenture for the Knights of the Parlia­ment, and for the Burgesses. The Sheriffs Retorn of the Writ for Electing Parliament Men.

CHAP. XXIX. Customs of London, as to Officers, Prisons, Courts, Process. Of the Sheriffs Court. How to Lay the Custom of the Sheriffs Court. The difference between the Mayors Court and the Sheriffs Court. Sheriffs Court, when kept. The manner of Entring Actions in the Compters.

CHAP. XXX. The Sheriffs Duty as to the Assizes: And as to the Sessions of the Peace.

CHAP. XXXI. Of Sheriffs and Officers Fees. Of Security and Remedy for Fees. What Security the Sheriff may take for Fees, or not. What Remedy the Sheriff shell have for his Fees. Where the Sheriff shall not take Fees. What shall be said Extortion in Sheriffs and Gaolers, and how punishable. What shall be a good Consideration in Assumpsit.

CHAP. XXXII. Bonds or Covenant between the High-sheriff and Ʋnder-sheriff, or other Officers. What shall be good in Law, or not: And when said to be Forfeited, or not.

CHAP. XXXIII. Of Sheriffs Accompts.

CHAP. XXXIV. Of Coroners. How the Coroners must be Chosen, and the Credit the Law gives to them; and how and when they shall be discharged. The Coro­nors Demeanor as to Outlawries. Coroners In­quest.

THE OFFICE AND DUTY OF SHERIFFS, &c.

CHAP. 1.

Of Counties. When the Realm was divided into Counties. Vicecomites. Notatio nominis. Sheriffs eligible in former Times; How made at this Day. The Sheriffs Honour, Power and Priviledge. His Office not apportionable. What he may do as Con­servator Pacis. How favoured in the Execution of his Office. Of his Assistance. In what Things and Cases he is restrained.

THE Sheriff and the County being Cor­relata, I shall first give a few Observa­tions about Counties, what they were Originally.

Counties (a word taken from the French,) or Counties. Shires (a word taken from the Saxons,) are cer­tain Circuits and Parts of the Kingdom, into which the whole Realm was divided for the more convenient Government thereof, and is Governed by a yearly Officer, which we call SHERIFF, which is compounded of two Saxon words, Shine and Reeve, Reeve signify­ing Praepositus, or Governour.

As for the Time when and by whom this When this Realm was divided in­to Coun­ties. 1 Inst. 168. Realm was divided into Counties, Authors seem to differ. Coke on Littleton, fo. 168. holds, that they were divided by the Britains; but it is generally held (as Ingulph, &c.) that they were divided by King Egbert or Aelfred: But tho' Egbert united the Heptarchy, yet he was not the first that divided the Kingdom into Counties, nor Aelfred neither, as some imagine. For as Mr. Selden observes, about the Year 700 (an hundred years before Egbert) one of Ina's Laws was; If any [...]man, i. e. Sheriff were guilty of an Escape, perdat Comitatum suum. Therefore Ingul­phus meant that King Elfred did divide it into Hundreds, or else made a more punctual Divi­sion than was before. Now it appears that the Earls of the Counties, had the custody and guard of the Counties long before the Conquest; and when the Earls left their Custodies, then was the Custodies of Counties committed to Viscounts, and they are thereupon called Vice­comites, Comites, Vicecomi­tes. quia vices Comitis supplent. And we seem to derive all this from the Romans; for what we call Comitatus, was by them called Consulatus, and what the Saxons afterwards called Sh [...]ieve, or Earl, the Romans called Consul; and the Sheriff was Deputy of the Consul or Earl, and the Romans called him Viceconsul. 1 Inst. 168. Dug­dale Antiq. War. Pref.

In 2 Bulstr. Chune and Pyots Case, Coke argu­endo, seems to be of Opinion, that there were no Earls before the Conquest. But the meaning is, there was no Hereditary Earl; but he that had the Office, had it at the pleasure of the King. For in the Preface to his Reports, the Third Part, he is of Opinion, there were Sheriffs 3 Rep. Pref. time out of mind before the Conquest; and if so, then Earls were. He gives an undeniable Argument, for that the Trials per Juries, which were always Returned by the Sheriffs, were before the Conquest, even as appears by Doomsday-Book. Now we know that Viscounts were not Created Viscounts Original. till the Time of H. 6. Sed distinguendum, &c. Vis­count signifies a Title of Honour, or an Office of Trust. As a Title of Honour it is of late stand­ing; but as an Office of Trust, ( viz.) for the Government of the County, it was time out of mind. And this difference I ground upon Camb­den in his Britannia: Viscount (saith he) haec vetus Officii, sed nova Dignitatis appellatio. 9 Rep. in fine de Lewes's Case.

The Sheriff at Common Law was Eligible by Sheriffs in Ancient times Eli­gible by the Coun­ty. the County, as the Coroner is at this day; and then by the Death of the King his Office was not determined, no more than the Coroners are now. 2 Brownl. 282. Chamberlain and Goldsmith.

But by Stat. 14 Ed. 3. c. 7. & 21 H. 8. c. 20. the Judges are to nominate Three persons of every How Cho­sen at this day, and when. County to be presented to the King, that he may prick one of them, which by the Statute is to be done 3 Novemb. being Crastin. Animarum; and yet An. 16 Car. 1. because the 3d of November was the first day of the Parliament, and the Lords were to attend upon the King, it was Resolved by the Judges, that it might be well put off till another day; and the Lord Keeper deferred it till the 6th of November. Cro. Car. 595.

But the Statute of 9 Ed. 2. restrains not the King's Power at Common Law; but the King may constitute a Sheriff without Election, or grant it in Fee; and he may still make Sheriffs without the Judges, Dyer 225. for all Acts of Dyer 225. Acts of Grace, how to be con­strued. Grace flow from him. As Dyer 211. the Com­mission of Trial of Piracy upon the Statute of 28 H. 8. is good, tho' the Chancellor does not nominate the Commissioners as the Statute ap­points, &c. And the Reason is given by my Lord Hobart. Hob. 14. b. Colt and Glover's Case, & 214.

These Statutes, and the like, were made to put things in ordinary Form; and to ease the Sovereign of Labour, and not to deprive him of Power. The Election being meerly in the King, and the Office Ministerial only.

I will now set down some General Observa­tions The Ho­nour, Power and Privi­ledge of Sheriffs. of the great Honour, Power and Priviledge of Sheriffs, and wherein and by what Acts he is restrained.

One calls it Judiciaria dignitas. Fortescue saith, that Vicecomes is Nobilis Officiarius. In Savill's Savil p. 43. Rep. p. 43. he is called a Royal Officer: For (saith the Book) Charters of Liberties granted to the Barons of Cinque Ports and other Inhabitants, shall discharge them for Inferiour Offices, as Constable, &c. but not of Offices Royal, as Sheriff. 1 Roll. Rep. 274. Phelp's Case.

The Sheriff takes place of every Noble-man Takes place of Noble­men. in the County, during the time that he is Sheriff. And tho' the Sheriff be not a Justice of Peace, yet he is a Conservator of the Peace, and by this he may well imprison a man upon good Cause. 2 Roll. Rep. 237.

Fitzherbert N. B. 81. b. at Common Law the Sheriff may Commit any one for the Breach of the Peace.

Such Persons as he shall apprehend upon sus­picion of Treason, or Felony, upon fresh Suit or Hue and Cry, he may commit to the Gaol. He may commit all Affrayers or Breakers of the Peace in his presence.

Upon any Foreign Invasion he may raise the County; so upon Rebellions and Insurrections; and may command any Number he thinks fit to aid him.

But of his own Authority he shall not Arrest any man upon suspicion of Felony; except there be a Felony committed in Fact, and he himself have suspicion of him.

By Stat. 17 R. 2. c. 8. the Sheriff may raise the Posse Comitatus to suppress Rioters and commit them to Prison, 13 H. 4. c. 7. and if the Rioters resist, the Sheriff and his Assistants may justifie the killing them. Vide the Stat. 13 H. 4. c. 7. and the Stat. of Northampt. 2 Ed. 3. c. 3. for this purpose, & 13 Ed. 1. c. 39.

Wheresoever the Sheriff, or any other of the Kings Officers may take Posse Comitatus, or have Authority either to execute the Kings Process, or apprehend Felons, Rioters, &c. if they shall find Resistance, they may arrest and imprison all such Offenders.

He hath Custodiam Comitatus, and therefore What the Sheriff may do as Conserva­tor Pacis. Tho' not to act as Ju­stice of the Peace for that year. for Cause he may commit: He is Conservator Pacis. Stat. 1 Mar. c. 8. doth not take away Power from the Sheriff; only, if he was in Commission of Peace before, he was to forbear the execution of his Commission for the Peace so long as he is Sheriff; but he is not to forbear the execution of that which is committed to him for the County.

The Sheriff, if he see a person carry Weapons in the Highway in terrorem populi, he may commit him, tho' he do not break the Peace in his pre­sence. [Page 6] The Lord Coke cited the Mayor of Bar­staple's Case, in Chune and Piott's Case, 2 Bulstr. The Sheriff favoured in the Exe­cution of his Office. Now the Case of Chune and Piott was this: One Clare was committed to the Compter of Woodstreet, and made his Escape; the Defendant being one of the Sheriffs pursued him, and in his pursuit met with the Plaintiff in the Night time vagrantem, who pursued him indecently, and gave him uncivil words, & detrusit ad murum; Justificat' en faux Imprison­ment. whereupon he Imprisoned him, and Justifies in faux Imprisonment. He doth not say, he did it violenter, or contra pacem, or sciens, knowing him to be Sheriff: But per Cur', it shall be intended he did it malitiosè, and the Law implies it was done vi & armis. It's a good Justification. Had the Defendant done it by chance and unwil­lingly, he might have pleaded it, and his not pleading it shews it to be otherwise, 2 Bulstr. 329. But the Mayor of Barstaple Justified the commit­ting a man, for that he did misbehave himself against him by ill Words, &c. Had this been laid to be done in the execution of his Office, it had been good; but he was then playing at Tables.

Anciently the Bishop, with the Sheriff, went Bishops and Sheriffs went Cir­cuits. The Office of Sheriff entire, and not to be apportion'd in Circuit twice every year, through every Hun­dred within the County, 2 Inst. 70.

The King cannot restrain any part of the Sheriff's Power, neither can the King choose a Sheriff contrary to the Statute of Lincoln. The Office of Sheriff is entire and cannot be appor­tioned. Tho' the King constitute a Sheriff durante beneplacito, and may determine it at Will; yet he may not determine it in part, nor abridge him of any thing incident to his Office. Hob. p. 13. 2 Inst. 501. 4 Rep. 32. Milton's Case.

The Sheriff is an Officer of that Eminence, Sheriffs favoured in Law. Confidence and Charge, that he ought to have all Right pertaining to his Office, and ought to [Page 7] be favoured in Law before any Private person. I shall give you some Instances. 4 Rep. 33. b. Mitton's Case.

Inasmuch as Escapes are so Penal to Officers, Escape, not to be judged strictly. the Judges have always made as benign Con­struction as the Law will permit in favour of them, and to the intent that every one may [...]ear his own burden, they will never judge an Escape by strict Construction. As if one in Execution escape and fly into another County, and the Sheriff retake him on Fresh pursuit, its no E­scape, if [...]t be before Action brought. So if the Sheriff by Habeas Corpus be commanded to bring the Body at the day, he shall not be com­pelled to take the most direct way, but the safest. Vide infra.

The Sheriff is not punished for executing the The Sheriff not punish­able for executing erroneous Process. Killing of the Sheriff in doing his Duty, is Murder. Process of the Court, tho' it were erroneous. Vid. postea.

If any Sheriff, Under-Sheriff, Serjeant or Officer, who hath execution of Process, be slain in doing his Duty, its Murder in him who kills him, altho' there were not any former Malice between them; and if there were Error in awarding of Process, or in the mistake of one Process for another; as a Capias in Debt against a Peer; and an Officer be slain in the execution thereof, the Offender shall not have advantage Cro. Jac. 279. Mac­kally's Case. of such Error, no more than a Sheriff who suffers a Prisoner to escape, shall take any advan­tage of Error thereby. And in this case there needs not a Special Indictment to be drawn; but a General Indictment, that such a party ex malitiâ suâ praecogitata percussit, &c. for the Law presumes Malice, tho' none be proved; so it is if any shall come in aid of them; and an Officer, 9 Rep. Mackally's Case. if he be resisted, is not bound to fly to the Wall, as other Subjects are.

Several Persons were informed against, for Severe Fines for assaulting the Sheriff. assaulting the Sheriff in serving Execution, and fined Sir J. Wingfield the Prisoner at 500 l. and Brady 500 Marks, because it appeared upon the Evidence he drew his Sword and wounded the Cro. Car. 251. B. R. Le Roy versus Sir J. Wingfield and Others. Sheriff, and by that means the Prisoner escaped into Neale's House, and 180 l. against Neale, because he kept out the Sheriff, and shut the Door against him, and 500 l. against Sir T. B. because he was the means of conveying away the said Prisoner to Lincolns Inn; and per Cur' such Fines assessed in Court by Judgment on Infor­mation, cannot be afterwards qualified or miti­gated.

The Sheriffs Bayliffs lawfully arrested a man, if Assistants to the She­riff, or his Bayliffs. the persons which stood by refuse to assist them, (in case of Opposition) they shall be fined. Winch. p. 72. Foster's Case.

Every man is bound by the Common Law to assist, not only the Sheriff in his Office, for the execution of the Kings Writs, according to Law; but also his Bayliff that hath the Sheriffs Warrant in that behalf, hath the same Authority which his 2 Inst. 193. sur Stat. W. 1. c. 17. Fine for Non-resi­stance. Master hath: For the Sheriff cannot do all him­self, and if they do it not, being required, they shall be sined and imprisoned; but in the case of Replevin, out of a Castle, House, &c. before the Sheriff useth any Force, he ought to demand (according to Law) the Goods to be delivered, so as Replevy may be made thereof; for sequi debet potentia mandatum Legis, non praecedere.

Now besides the Warrant of the Common Law, the Sheriff has his Letters Patents of Assi­stance, The She­riffs Letters Patents of Assistance. Id. ibid. whereby the King commandeth, that all Archbishops, Bishops, Dukes, Earls, Barons, Knights, Freemen, and all other of that County, be to the Sheriff thereof in omnibus quae ad Officium illud pertinent, intendentes, auxiliantes & respondentes.

As to the Sheriffs power in breaking up Houses, Sheriffs power to break up Houses. Moore 66. vid. infra Tit. Execution. Only I shall observe on Process for the Good Behaviour, the Sheriff may break an House to take the Party, as if the She­riff have a Cap' against one, to find Surties of the Good Behaviour.

The Sheriff or his Ministers in the Execution May carry Weapons. of Justice, may carry a Dag or Hand-gun, and its no offence against the Statute. Cro. El. 822. Gardne's case, & 5 Rep. 71.

The Sheriff in some Cases shall not be a Dissei­sor In what Cases the Sheriffs Of­ficers excu­sed from doing wrong. 6 Rep. 52. in fine Bos­wells case. for executing the Kings Writ, tho' he doth wrong, for Officers in such Cases are excused by their Warrant. As it was found ex officio, that the Church was full of B. who was a stranger to the Quaere Impedit, and it appears no that he had better Title; yet the Plaintiff ought to have a Writ to the Bishop generally. So it is of a Sheriff on Habere fac' seisinam of Land, for it cannot come in Issue between the Demandant and him, for he had no day in Court; and tho' a third person had Right, they are excused by their Warrant.

If the Sheriff be resisted in executing the Posse Comi­tatus. 3 Inst. 161. Kings Writs or Process of Law, he may take the Posse Comitatus; so he may to suppress Ri­oters. Vid. Supra.

As for other Judicial Office of the Sheriff, as Enquiry of Wast, Redissesin, &c. vide under their proper Titles. By the Statute 21 Jac. c. 13. the Life 1 Keb. 176. of the Party absent, during whose Life the Defendant had a Lease, is to be enquired by the Sheriff.

Per Sat. 23 Eliz. A Recusant Convict shall 2 Keb. 108. Le Roy & Webb. after Proclamation at the Assizes or Gaol Deli­very render his Body to the Sheriff, before the next Assizes.

But notwithstanding the Dignity and Favour The Sheriff in what things re­strained. the Law casts on Sheriffs, yet in many places they are restained, and have limited qualifications, [Page 10] which would further contribute to the explica­ting the nature of the Sheriffs Office.

The Sheriff of the County is not to be chosen Not to be chosen a Parliament Man. Lit. rep. 326 Walt. Longs Case. a Parliament Man. A. 12 Jac. 1. Sir George Selby was made Sheriff of Durham, and Elected Knight for Northumberland; it was resolved in Parlia­ment, that the Election was void.

Mr. Walter Longs Case was warmly argued, he was informed against first, That he being made Sheriff of the County of W. and having taken the Oath to be dwelling in his County all the year, unless he had Licence of the King, had committed Perjury, in as much as he was ab­sent out of the County three Months together. He said he was Elected Burgess for Bath, and by vertue of a Writ of Summons under the Great Seal, which he conceived amounted to a License. The Statute is 4 H. 4. cap. 5. every Sheriff shall dwell in his proper person in his Bayliffwick for the time that he shall be Officer; the words are Demurrant, not Abiding. The King by Will may Elect one of the House to be Sheriff, for this is a Dispensation; but it appeared Mr. Long sought to be Elected Parliament Man. Quaere how it was resolved in the Star-chamber.

By the Stat. of 23 H. 6. no Man shall serve the Shall not serve above one year. Non ob­stante. 1 H. 7. 7 Rep. 14. Calvins Case. 12 Ed. 4. c. 1. King as Sheriff of any County above one year, and that notwithstanding any Clause of Non obstante to the contrary; that is, notwithstanding the King should expresly dispense with that Stat. And yet 'tis agreed, that against the ex­press purview in the Act, the King may by a Special Non obstante dispense with that Act, (except such as are Inheritable to the Office of Sheriff or other Offices in London.) Yet they may execute their Office during Mich. and Hillary Term, if no Writ of Discharge come.

Every Sheriff is to be resident in his own per­son, within his County during the time he is Sheriff, (except he be otherwise Licensed by the King.) p. 4 H. 4. c. 5.

A Sheriff of one County hath no Authority, One Sheriff hath no power in another County: or Power within another County; yet the She­riff by force of the Kings Writ may carry the Prisoner through several Counties, or make fresh persuit into other Counties, and the Prisoner shall be said to be in the Custody of the first Sheriff, in every County.

The Sheriff is not to Let his County to Farm Not to Let his County to Farm. per Stat. 23 H. 6. c. 10. By the Sheriff's Letting his County to Farm, is understood of the proficua Comitatus, which was considerable, when most Law Suits were transacted in the Counties, and in Hundred Courts, Fines Issues and Amerce­ments being considerable. And in the time of H. 3. the Bayliffwick of one County was Let at 100 l. per annum, a great Sum in those days. There was a Bond for Rent, on a Lease of the Bayliffwcik of the Savoy. Now the Stat. 27 H. 8. c. 24. being a general Statute, and the conclusion 3 Keb. 678. Ellis and Nelson. general contra formam Statuti, will avoid this Con­tract, per Stat. 23 H. 6. The Security is void, tho' it hath no express words to avoid it; but per Curiam, 23 H. 6. being a particular Law should have been pleaded, and the Stat. 27 H. 8. is but a Relative Statute. Per Stat. 4 Ed. 3. c. 9. The Nor hun­dred. More W. 1021. Stockwith and North. Sheriff shall not Let Hundreds to Farm. It was resolved in Stockwith and North's Case, that the setting to Farm Offices was malum prohibitum, against the Stat. of 4. H. 4. c. 5. and also malum se. And therefore, because the Sheriff of Not­tingham took Money for the Gaolership, and the Bayliffwick of the County for one year, he was fined in the Star Chamber. The penalty for offen­ding these Laws are 40 l.

Tho' the Sheriff be so much favoured and re­spected Guilty of Homicide if he put a Condemn'd man to death con­trary to or­der of Law. in the Law, and in the very Execution of Criminals; yet he shall be Guilty of Homicide, for not observing the Order of Law, in putting a Condemned man to death. 7 Rep. 13. 1 Jac.

What prescription by a Sheriff good or not. A Sheriff may not prescribe, that he and all those who have been Sheriffs have been seized of a certain Gift at every Turn held, &c. for the Sheriff is put in by the King every year, and re­moveable at pleasure. But in 21 H. 7. 17. b. an Under-Sheriff prescribes, that he and all Under-Sheriffs of the County, have used to have so 42 Ed. 3. 5. 21 H. 7. 17. 6. much for Bar Fees, and admitted good.

CHAP. II.

What the Sheriff must do at the Entrance into his Office. The Form of the Writ of Discharge of the Old Sheriff. The Form of his Oath, how and be­fore whom to be taken, and the Return. The Cities and Towns in England which have Sheriffs, and how many each. Of delivery of Writs and Prisoners by the Old Sheriff to the New. Till what time the Old Sheriff, or his Officers may Act. What's to be done in the Case of the Kings Death. What shall be said a good delivery of Prisoners, and how to be made. The Form of the Indenture setting over the Prisoners, and the Writs. The Form of the Re­turn of those that have been Executed by the Old Sheriff. What Acts may or must the Old Sheriff do after his Discharge, and what remedy against him for a Misdemeanor in his Office. When and where the New Sheriff must Read his Patent, and make his Deputies in the County and Courts above. How and in what Cases his Office is deter­mined before the year be out.

HE must go into the Remembrancer's Office in the Exchequer, to Enter the Recogni­ance with Sureties, (or some for him) with Con­dition for payment of his Proffers or Accompts which is twice in the year, ( viz.) at or before Mense Pasch' & Mense Michaelis then next follow­ing. Then his Attorney or some other will write him a Note, signifying that he is Sheriff of such a County, and hath entred into Recognizance; the which Note the Sheriff must deliver to one of the six Clarks in Chancery to make his Patent by, with a Writ of Assistance, and a Writ of Discharge to be delivered to his Predecessor, who should be Delivered with all speed to his Prede­cessor, for the benefit of his Under-Sheriff; because [Page 14] till it be livered, the Precedent Sheriff may do Execution of all Process.

As to the Forms of these two Patents, ( viz.) the Patent of his Office, and the Patent of As­stance, Vid. Dalton.

But the Form of the Writ of Discharge dire­cted to the Old Sheriff is this.

WIllielmus, &c. dilect' sib. J. S. Armig' nuper Vic' Warr' salutem. Cum concesserimus Dilecto, &c. nobis A. B. Armig' Comitatum nostrum praedict' custo­diend', quamdiu nobis placuerit, prout in Literis nostris patentibus ei inde concess' plenius continetur, Tibi praecipi mus qd' eid. A. B. Com'nostr' praed' cum pertinentiis una cum Rotulis Brevib' Memorand' & omnibus aliis ad officium Vicecom' praed' spectan' quae in custodia tua existunt per Indenturas inde inter te & prefat' A. B. debite conficiend' liberes Teste meipso apud' West' quinto die, &c.

In the next place, he may go to a Master of the Chancery, or to one of the Judges of Assize of that County whereof he is Sheriff, and take the Oath of Supremacy by the Stat. of 1 El. c. 1. 5. Eliz. c. 1. And also an Oath for the due Execution of his Office, which is as follows.

The Sheriffs Oath.

YE shall Swear, that you shall serve the King well and truly in the Office of She­riff of A. and do the Kings Profit in all that belongs to you to do by way of your Office, as far forth as you can or may. Ye shall truly keep the Kings Rights, and all that belongeth to the Crown. Ye shall not assent to Decrease, to Les­senings [Page 15] or to Concealments of the Kings Right, or of his Franchises; and whensoever ye shall have knowledge, that the Kings Rights, or the Rights of his Crown be concealed or withdrawn, be it in Land, Rent, Franchise or Suits, or any other things, Ye shall do your true Power to make them be restored to the King again; and if ye may not do it, ye shall certifie the King, or some of his Counsel thereof, such as ye hold for certain will say it to the King. Ye shall not Respite the Kings Debts for any Gifts or Fa­vour, where you may raise them without great grievance of the Debtors. Ye shall truly and righteously treat the People of your Sheriff­wick, and do right as well to Poor as to Rich, in all that belongeth to your Office. Ye shall do no wrong to any Man for any Gift or Behest, or Promise of Goods for favour, nor hate. Ye shall disturb no Mans Right. Ye shall truly ac­quit at the Exchequer, all those of whom ye shall any thing receive of the Kings Debts. Ye shall nothing take whereby the King may lose, or whereby that Right may be disturbed, letted, or the Kings Debt delayed. Ye shall truly return, and truly serve all the Kings Writs, as far forth as shall be within your cunning. Ye shall not have to be your Ʋnder Sheriff, or any of the Sheriffs Clarks, of the last year past. Ye shall take no Bayliff into your Service, but such as ye shall answer for. Ye shall make each of your Bayliffs to make such Oath, as ye make your self in that, that belongeth to their Occu­pation. Ye shall receive no Writ by any of you [Page 16] or yours unsealed, or any sealed under any Seal of any Justice save of Justice in Eyre, or Ju­stice assigned in the same Shire where ye be Sheriff in, or other Justice having Power, or Authority to make any Writs unto you by the Law of the Land, or any Justice of Newgate. Ye shall make your Bayliffs of the true and sufficient Men in the County. Ye shall be dwel­ling in your proper person within your Baliff­wick, for the time ye shall be in the same Of­fice, except ye be otherwise Licensed of the King. Ye shall not Let your Sheriffwick, nor any Bayliffwick thereof to Farm to any Man. Ye shall truly set and return reasonable and due Issues of them that be within your Bayliffwick after their Estate and their Honour; and make your Pannells your self of such persons, as be most next, most sufficient, and not suspected or procured, as it is ordained by the Statutes, and over this in eschewing and restrainder of the Mans-slaughters, Roberies, and other mani­fold grievous Offences, that have been done dayly, namely of such as name themselves Soul­diers, and by other Vagrants, the which conti­nually increase in number, and multiply, so that the Kings true Subjects may not be safe; yea, Ride, nor go to do such things as they have to do, to their intolerable hurt and hindrance: Ye shall truly and effectually, with all dili­gence possible to your Power execute the Statutes, as the Statutes of Winchester, and of Vaga­bonds. These things all ye shall truly keep, as God ye help.

Note, That there was an Addition in this Crok. Car. p. 25, 26. Sir Ed. Coke's Case. Oath by the Statute of 5 R. 2. and 2 H. 4. c. 15. (viz.) That he should seek to repress all Errors and Heresies commonly called Lollards, and should be assistant to the Commissaries, and Ordinaries in Church matters. And this was objected by Sir Ed. Coke, after he had been Lord Chief Justice of both Benches, and made Sheriff of the County of Buckingham, when he had a dedimus potestatem annexed to a Schedule, in the first year of Charles the first: And ever since they have been left out, because Lollardism then was the true Antipapal Religion as is now professed. And he made other Objections, one whereof was, that some parts of the Oath are not by any Statute, and its a Maxim, That none but the Parliament can ap­point None but the Parlia­ment can appoint an Oath. an Oath. But it was resolved by the Judges, that this Oath being appointed, and continued divers years by direction of the Statute, altho' without the express Authority of any Statute Law; yet may well be continued for the pub­lick benefit.

Note, As to the Statute of Winchester, the Ju­stices of Peace have eased the Sheriff of much trouble. And by the Statute of 39 Eliz. cap. 4. all former Statues for the punishment of Vaga­bonds are Repealed

The Oath of the Sheriff of Oxford and Berks, and also of Cambridge and Huntington.

YOƲ shall Swear, That well and truly ye shall Serve the King in the Office of Sheriff of Oxford and Berks. And the Kings Profit, &c. ut supra usque So help ye God. And also ye shall Swear, That the Masters and Scholars of the Ʋniversity of Oxford, and [Page 18] their Servants from injuries and violences Ye shall keep and defend by all your Strength and Power; and the Peace in the said Ʋniversity as much as in you is, ye shall keep. And that you shall give your Councel and Help to the Chancellor, and Scholars of the same Ʋniver­sity, for to punish the disturbers and breakers of the Peace there, after the Priviledges and Statutes of the said Ʋniversity, at all times when it shall be needful. And also, ye shall put your help withal your Strength to defend the Priviledges, Liberties and Customs of the said Ʋniversity. And that ye shall receive all such Oaths of your Ʋnder-Sheriffs, and other your said Ministers of your said County of Ox­ford, as soon and anon as ye shall be at the the Castle, or at the Town of Oxford, in pre­sence of any that shall be thereto deputed by the said Ʋniversity; to the which things the King will, that your said Ministers be by you acted and compelled. As God you help.

The like Addition to the Oath of the Sheriff of Cambridge and Huntington, mutatis mutandis.

If the New Sheriff be not in London, he may take his Oath by dedimus potestatem, directed to any two Justices of Peace of the same County, one to be of the Quorum, or to any other Com­missioners.

The Cities and Towns in England, which have Sheriffs are as follow.
  • The City of
    • Bristol 2
    • Coventry 2
    • Canterbury 1
    • York 2
    • Exon 2
    • Glocester 2
    • Leichfeild 1
    • Lincoln 2
    • London 2
    • Norwich 2
    • Worcester 1
  • The Town of
    • Kingston upon Hull 1
    • Southampton 1
    • Nottingham 2
    • Poole 1
    • Newcasle on Tine 1

The Return of the Dedimus by the Commissi­oners is thus.

VIrtute istius Brevis nobis direct' (tali die & Anno) recepimus Sacrament' infranominat' A. B. Vice­com' Warr' tam de offic' Vicecom' in dict' Com' Warr' bene & fidelit' faciend' juxt' formam cujusdam Sche­dulae praesentibus ann' quam Sacramentum specificat' in Actu Parliament' Anno Regni Dominae Elizabethae nuper Reginae Angliae &c. primo fact' secundum tenorem Brevis & Schedulae Brevis proed' similit' annex' prout Breve istud in se exigit & requirit.

The Sheriff must take the Oath and Sacra­ment, as is now usual for all Officers and Mini­sters of Justice. Stat. Car. 2. and the Oaths appointed by the Statute of William and Mary.

In the general Case of the Sheriffs of England, when the King makes a new Patent, tho' the Ancient Sheriff had his Office but durante [...]eneplacito, presently a Writ of de Comitatu Com­misso Writ of Discharge. (which is commonly called a Writ of Dis­charge, or a Writ de exoneratione officij,) shall issue; the form Vide supra.

And then another Writ is directed to the Ancient Sheriff for the delivery of his County and Rolls, Writs, &c. to the New Sheriff. These were two Writs formerly, but now they are in­cluded in one. Vide supra.

The next thing is, the New Sheriff at or be­fore his first County Court, must take over from his Predecessor all his Prisoners and Writs pre­cisely by view, and by Indenture to be made be­tween them, wherein all the Causes which he has against every Prisoner, must be set forth and delivered, or else the New Sheriff is not charg­ed with them, as in Westbies Case.

Now before I say more as to the Delivery, I I shall shew you what Actions of the Old Sheriff, or his Officers shall be good, and to what time.

Now the Old Sheriff of a County is Sheriff, until the New be Sworn, altho' he be Chosen; for it is the taking of his Oath that doth com­pleat Till what time the old Sheriff, or the new Sheriff may Act. Crok El. 12 Fitz Case. More 186. More 364. St. John's Case. Cro. El. 440. Boucher and Wise­man. him in his Office. And the Arrest is good by the Old Sheriff, till a new Patent be shewed to him, or other sufficient notice, Cro. El. Fitzs Case. The Acts of the Old Sheriff are good, till a Writ of Discharge received, More 186. And a Bayliff Errant may Execute a Warrant of an Old Sheriff made before a Writ of Discharge; altho' a New Sheriff be Chosen, More 364.

And therefore in Cro. El. 440. Action on the Case was brought against the Sheriff, and the Plaintiff declared, whereas he had recovered an 100 l. and had a Fieri facias, and Defendant by [Page 21] vertue thereof levied 28 l. and had not Retorn­ed the Writ, nor paid the Money to the Plain­tiff. On Not guilty pleaded, in Evidence it was proved, that the Writ was delivered to C. the Defendants Under-Sheriff, 9 No. 34. El. and the same day he made Execution; and he proved, that the same day a Writ of Discharge was deli­vered to him, 6 No. 35 El. but he did not prove he had notice of this Writ of Discharge, before the Execution served, Per Cur'. he was yet Sheriff, and Chargable to the Plaintiffs Action. The Ancient Sheriffs ought to give notice of all Ex­ecutions, against any in their Custody to the New Sheriff, altho' the Executions are of Re­cord; or otherwise, the New Sheriff shall not be chargable with them. But if the Old Sheriff dye, the New Sheriff at his Peril, shall take Notice of Executions to the new Sheriff. 3 Rep. Westbies Case. notice of all Executions, which are against any that he finds in the Gaol; and this is of neces­sity, for there is none to deliver over the Pri­soners to him: And in such case the New She­riff is to take notice of all the Writs. Dalt. 17. Moore 688. Pop. 85. Mesme Case.

The Delivery over of the Prisoners must be by Indenture, and every several Execution must Delivery of Prisoners 3 Rep. Westbi [...] Case. be mentioned that is against any one. And there­fore in the great Case to this purpose, viz. Westbies Case, The Sheriff of London by Indenture Deli­ver over J. S. (who was in Execution at the Suit of A. and B. severally,) and only mentions the Execution against A. and J. S. Escapes, B. brought Debt against the Old Sheriffs, and ad­judged that the Action well lies; for he cannot be in Custody of the New Sheriff for this Exe­cution, because they were not charged with this Execution, and the fault was in the Old Sheriffs, in omitting it on their Indenture; and the Escape commenceth e [...] Instanti that the Ancient [Page 22] Sheriffs deliver their Prisoner to the New, for then they cease to have the Custody of him, and tho' he remains in the Walls of the Gates, 'tis an Escape in Law.

And until the Prisoners are delivered to the New Sheriff, they remain in the Custody of the Ancient Sheriff, notwithstanding the New Pa­tent, the Writ of Discharge, and the Writ of Delivery.

As to the Prisoners in Execution, in case of the death of the Sheriff. Vid. infra tit. Execution.

Now by the Death of the King the Sheriffs What is to be done in case of the Kings death. Dalt. 17. Office ceaseth, and therefore in the next King's time, a new Patent is immediately sued out; and if a Prisoner escape between the Death of the King and the new Patent, the Sheriff shall be charged, for he ought to have made his Gaol safe. Vide supra, Westbies Case.

In Smallman and Lanes Case, It was the Opini­on What shall be said a good deli­very, and how to be made. 2 Leon 54. Smallman and Lane. of all the Justices, That by the Law the Old Sheriff ought to deliver the Body of him, who is in his Custody, by view to the new She­riff, and such Prisoners ought to be brought to him to view; and from that time, the Law shall judge the Prisoners in the Possession of the new Sheriff, and not before.

D. Sheriff of Warwick had one in Execution whom he kept in a private Prison by himself, for all his Executions in the Town of Warwick; and when he was discharged of his Office, and a New Sheriff made, D. said to the New Sheriff, that he had such an one in Execution in his Cu­stody, and offered to the said Sheriff to put him in the Indenture amongst his other Prison­ers The New Sheriff not bound to receive Prisoners from the Old Sheriff, but at the Gaol; yet if the other will receive them out of the Gaol, the old one is discharged. Dabridgcourts Case, largely cited in Wes [...]b [...]es Case, Pop. 85. delivered to the New Sheriff; but the new [Page 23] Sheriff refused to receive him, unless D. would deliver him into the Common Gaol of the County, which was in the Town of Warwick, and then the Prisoner escaped. D. was charged with this Escape, for the New Sheriff is not compellable to take the Prisoners of the delivery Crompt. 204. of the Old Sheriff, but in the Common Gaol of the County. And if the Sheriff dies, the Party shall be rather at a prejudice, than the New Sheriff without cause charged with him: And in such a Case, the Party who sued Execution may help himself, (to wit) by a remanding of the Body, by a Corpus cum causa, whereby he may be brought to be duly in Execution, and this under a due Officer.

There was an Habeas Corpus ad recipiend', &c. How Pri­soners shall be turned over by Indenture. for W. W. to H. Sheriff of Glouc' and he moved the Court for their Advice, because W. was in Ex­ecution when B. was Sheriff, and was left in the Gaol when C. was Sheriff; but he was not turned over by Indenture to C. not to H. but was yet in the Gaol, and had been charged with a new Execution, which they were ready to Retorn, but pray that he shall not be inforced to Return the other Execution; because he was not in Custody to him for this. Per Cur', He shall not If a Pri­soner is not turned over to the next She­riff and yet remains in the Gaol, he is Prisoner of the ancient Sheriff, and may be turned over. be compelled to make other Retorn, but that for the first Execution, he shall yet remain in the Custody of B. the ancient Sheriff, tho' his Body be in the Custody of the New, because he was not turned over by Indenture; and the difference between this and Westby's Case is, that there the Prisoner was turned over for one Debt, and not for the other, and therefore an Escape for that. And per Cur', B. the ancient Sheriff may turn him over by Indenture to H. the present Sheriff (for it ought not to be to C. for he never was in his Custody) and then he will make Retorn of all [Page 24] the Executions. Siderfin p. 335. Hanmer and Wico­mer. The Old Sheriff may make Indenture to one who is Sheriff several years after. Vide 2 Keb. 224.

Note, It was said by Hobart, Winch 51. in Empson and Bathurst's Case. If the Sheriff make an Ex­tent, and before a Liberate a new Sheriff is chosen, in this case the new Sheriff shall have the Fees appointed by the Statute.

Upon Delivery of the old Sheriff to the new Sheriff, and Escape thereupon, Vide tit. Declara­tion in Escape.

The Form of an Indenture for setting over Prisoners and Writs between the Old and New Sheriff.

THis Indenture made, &c. Between A. B. Esq; late Sheriff of the County of Warr' of the one part, and C. D. Knight, now Sheriff of the said County, of the other part, Witnesseth, That the said A. B. by virtue of his Majesties Writ of Discharge (of his late Office) to him directed, hath delivered and set over unto the said C. D. these Writs following, (That is to say) a Capias against W. H. Ret' Octab' Hill. ad sect. Johannis Smith, &c. together with the Bodies of J. N. in Execution at the Suit of G. H. for a Debt of 22 l. and J. H. at the Suit of C. D. in Execution for 10 l. and R. G. in Execution as well at the Suit of O. D. for a Debt of 100 l. as also at the Suit of N. W. for a Debt of 40 l. in, &c. In witness, &c.

All the Writs which are set over in the Inden­ture between the Sheriffs, if they have been exe­cuted by the Old Sheriff, then they must be Re­torned by him, or in his Name, and Indorsed under by the New Sheriff thus:

Breve prout Indorsat' mihi deliberat' fuit per A. P▪ Armig', Vic', prox' praedecessor' meum in exitu ab Officio suo.

Per C. D. M [...]', Vicecom'

What Acts may or must the Old Sheriff do after he is discharged, and what remdy against him for a Misdemeanor in his Office.

Process in some Cases may be to the Old In what case Pro­cess shall be to the Old She­riff. In case of Retorn of Cepi cor­pus. Sheriff, to bring in the Body of a Prisoner; and that is, where before he hath made a Retorn of Cepi corpus & parat' habeo, and afterwards he is removed and a New Sheriff made; on Non­appearance of the Prisoner Process shall go to the Old Sheriff, as Distringas, 1 Bulstr. 82. Egerton and Morgan.

The difference is, if the Sheriff at the day Retorn Cepi corpus and have not the Body ready, he shall be amerced, and a Distringas shall be awarded to the Coroners. But if the old Sheriff at the day Retorn Cepi corpus, and before the day of the Retorn he is removed, and a new one is made, the Distringas here shall be awarded to the new Sheriff, if it appear on the Record that he has taken the Body.

A Sheriff on a Fieri fac' seised Goods in his hands to the value of the Debt, and payed part of the Debt, and the Goods not being sold nor the Writ Retorned, the Sheriff was discharged, and afterwards sold the residue of the Goods Sale of Goods after Dis­charge. without any Vendition' exponas. And per Cur', the sale is good; for the Writ of Fieri fac' gave Au­thority to him to sell without any other Writ, 2 Cro. 73. Ayer and Aden. Therefore Mo. 757. the same Case is Misreported, which saith, If the Sheriff takes Goods by Fieri fac' and then is dis­charged; he may not sell them, but ought to deliver them to the new Sheriff, and Return quod non invenit emptores. And Yelverton in the same Case agreed with Crook on Fieri fac', sed non inveni [Page 26] emptores, a Distringas to sell shall go to the old Sheriff, and not to deliver the Goods to the new one, Mo. 757. Yelv. 44. Cro. Jac. 73. Aden and Ayre. 2 Keb. 821. Mildmay and Smith.

If Money be paid to the old Sheriff, and he is discharged before the Retorn of the Writ, the Party pays the Money to the Old Sheriff, he shall not pay it again. party shall not be compelled to pay it again; and the Plaintiff may have his remedy against the ancient Sheriff, if he will, Cro. El. 209. Rook and Wilmott.

The old Sheriff returned the Proclamation upon an Exigent, after that he was discharged of his Office; and by the Judgment of the Court the Outlawry was void, and the party was dis­charged, Dyer 41.

Note this for a Rule, That that which comes Regula. Pleading. after the Nuper is not traversable, unless the party be charged by reason of his Office, as if he be called in pleading Nuper Vicecomes, nuper Eschea­tor, &c. 38 H. 6. 18.

If Attachment may be granted against a Sheriff, out of his Office, not to be fined for a Con­tempt during his Office. Sheriff for Contempt, after he is removed out of his Office. The Justices said, they could not do it; for now he is no Officer and cannot now be fined, and without Fine they do not use to Im­prison, 2 Brownl. 144.

So Stiles: A Sheriff out of his Office cannot be fined by the Court; but a Tipstaff may be sent for, to bring him in to answer the Misde­meanor committed by him when he was in his Office, Pract. Reg. 304. p. 18. Or a Distringas nuper Vicecomiti may Issue out against him, 2 Sand. 88.

The Form of Pleading, Removal of one Sheriff and the Election of another, vide 2 Sand. 88.

The new High-Sheriff at the first County-Court, next after his Election and the discharge [Page 27] of the old Sheriff, must read his Patent and Writ The She­riffs Let­ters Pa­tents, when and where to be read. of Assistance, and nominate his Under-Sheriff, and depute and proclaim four Deputies to make Replevins in the Sheriffs name, who ought not to dwell above twelve miles distant one from the other, in every quarter of the County one, and to make deliverance of Distresses, when need shall require; per Stat. 1 & 2 Ph. & Mar. c. 12.

The new Sheriff, before he shall Return any Writs into the Chancery, Kings-Bench, Common Pleas His Depu­ties. or Exchequer, ought to make an Attorney or Deputy on Record in every of these Courts, there to receive all manner of Writs and Warrants as shall be directed to the Sheriffs respectively, and this upon pain of 40 l. and that per Stat. 23 H. 6. c. 10. And such Deputies are to be made by Warrant of Attorney from the High-sheriff. The like Law is of Sheriffs of Wales, and Lancaster, and Chester, and all Writs of Proclamation shall be delivered to every such Deputy. The Bishop of Durham, and (during the Vacancy) the Chan­cellor of Durham, shall likewise have a Deputy to receive all Writs of Proclamation.

Vid. plus of Deputies infra.

How the Sheriffs Office may be determined, or not, before the year be out.

The King may determine his Office when he pleaseth, tho' he cannot (during the Continuance of his Office) abridge his Power.

The Office of Sheriff determines by the death 2 Siderfin, p. 49. Cro. El. 12. Lord Mor­dants Case. of the King, vid. supra.

The Sheriff being made a Baron of Parlia­ment, or becoming a Baron by discent, this doth not determine his Office.

By the Death or Resignation of the King, the Authority of the Sheriffs, and all his Officers, doth determine; therefore it is used presently, in the next Kings time, to sue out new Patents of his Office, and of Assistance.

CHAP. III.

Of Under-sheriffs, &c. His Nature and Office, and Oath. In what cases the High-sheriff must execute the Office in person: He cannot abrige the Under­sheriffs Power. Of the Sheriffs Deputies in the County, and in the Courts above. Pleadings by the Deputies, and of Rescues from him. What Bonds and Covenants between the High-sheriff and Under-sheriff are good or not, and the pleadings to such Bonds. What acts or defaults of the Under­sheriff, Bayliffs, Gaolers, the High-sheriff shall be answerable for, or not: And what Actions shall be brought against the High-sheriff, Under-sheriffs and Gaolers. Cases and Resolutions about the Rule Respondeat Superior. Where the Lords of a Franchise shall be answerable. Of Trial by the She­riffs Certificate or by the Record.

WE have seen before how that an Earl had the Jurisdiction of the Counties, and their Commission ran thus, Commisimus vobis custodiam Comitatus nostri ad voluntatem, and the Sheriff comes in his place; and all Sheriffs likewise have their Commissions ad voluntatem nostram; and tho' Deputy. 3 Bulstr. 77, 78. Phelps and Winch­comb. there is no mention in his Patent of any Deputy to be made by him, yet he makes one. And as in the first Goverment the Earl made his Deputy, so the Sheriff made his Deputy, (viz.) the Under­sheriffs and Bayliffs Errants within the County, [Page 29] called the Serjeants of the County, and there is no Warrant for him to do so; but yet the same hath been still done.

A Ministerial Officer, as the Sheriff is, may Ministerial Officers may make Deputies. make a Deputy; but a Judicial Officer cannot, because he is to do Justice. Sed distinguendum est. All Retorns made by him, ought to be made in the name of the Principal Officer. For the High-sheriff only is sworn as to the execution of the Office of Sheriff, and he is to answer all.

Sub-Vicecomes is a person that our Law takes The Anti­quity of Under­sheriff. The Na­ture of an Under­sheriff. notice of, and an Under-sheriff hath been in use before the Conquest.

Now an Under-sheriff being in effect but the Sheriffs Deputy, according to the nature of a Deputation, he is removable as an Attorney is; and if the Sheriff make him irrevokable, yet he may revoke him. He is but in the nature of a general Bayliff Errant to the Sheriff, and the whole Shire, as others are over the Hundred. So that the High-sheriff may grant this Office at The High­sheriff may execute the Office of Under­sheriff himself. Will; or he need not make an Under-sheriff at all, but may exercise it himself.

The Under-sheriffs Oath.

Every Under-sheriff, before he meddles with Stat, 27 E [...]. c. 12. his Office, shall before one of the Justices of Assize, or the Custos Rotulorum of the County, or two Justices of the Peace there, one whereof to be of the Quorum, take the Oath of Supremacy, and also the Oath hereafter written, on pain to forfeit treble Damages to the party grieved, if he com­mit any act contrary to the said Oaths, or either of them. The Form of the Oath is as fol­lows:

I A. B. shall not use nor exercise the Office of Under-Sheriff corruptly, during the time that I shall remain therein; neithe shall or will accept, receive or take, by any colour, means or device whatsoever, or consent to the taking of any manner of Fee or Reward of any person or persons for the Impannelling or Re­turning of any Inquest, Jury, or Tales, in any Court of Record for the King, or betwixt party and party above Two shillings, or the value thereof, or such Fees as are allowed and ap­pointed for the same by the Laws and Statutes of this Realm: But will, according to my Power, truly and indifferently, with convenient speed, Impannel all Jurors, and Retorn all such Writ or Writs touching the same, as shall ap­pertain to be done by my Duty or Office, during the time that I shall remain in the same Office.

So help me God.

No Bayliff of Franchise, Deputy, or Clerk of Bayliffs of Franchises, and Sheriffs Deputies to take the same Oath. a Sheriff or Under-sheriff, shall intermeddle with their several Offices, before they have taken the said Oaths, as aforesaid, (before the Persons appointed by this Act to administer the same) or before the Head Officer of the place, if it be a Town Corporate, altering only the Terms of the Office, and the Office of Under-sheriff, to such words as are convenient for the Deputation, Office, or Place respectively: And this on pain to forfeit 40 l. between the King and the Prose­cutor.

The Forfeitures may be sued by Debt, Bill, Forfeitures, how to be recovered. Plaint or Information, in any the Kings Courts of Record: And Justices of Assize and of the Peace in their open Sessions, shall hear and de­termine the default done contrary to this Act, and on Conviction to award Execution by Fieri fac', Attachm', Capias, or Exigent.

The Sheriff in making an Under-sheriff, doth implicitly give him power to execute all the ordinary Offices of the Sheriff himself, that be transferred by Law; as serving Process, Exe­tion, and the like.

But in some Cases the High-sheriff must exer­cise the Office himself in person, and the Under­sheriff may not do it. As,

On a Writ of Partition.

On a Writ of Redisseisin; for in that the Sheriff is Judge.

In a Writ of Waste; for there the Sheriff is commanded to go to the place wasted. Vide infra.

In Justicies, the Sheriff himself is Judge, or else all is coram non Judice, and the Under-sheriff cannot hold Plea in it.

In all Cases where the words of the Writ are, That the Sheriff shall go in his own person; as in an Accedas ad Curiam, Waste, Redisseisin; there the Under-sheriff cannot do it. And one may be Judge and Officer in diversis respectibus. As the One per­son may be Judge and Officer in diversis respectibus. Sheriffs in Redisseisin, Waste, &c. so Bayliffs in many ancient Corporations are Judges and Offi­cers too, and the Custom is good, Cro. Car. 138. Crane's Case.

A Writ of Partition was awarded, and upon the Examination of the Under-sheriff, he con­fessed the High-sheriff was not there, as he ought to have been, and a new Writ was awarded.

Now in the Writs aforesaid, where the Sheriff must do Execution in his own person, if He be not there in person; if Exception be taken at the Bar before the Retorn of them be received, If the Waste be retorned and filed, the Court cannot Examine, whether he were there in proper person. But Exception may be taken at the Bar, before the Retorn be received. the Writ shall not be received: But if the Sheriff in such Writs Retorneth, That he was there in proper person, and this Retorn be received, and the Writ filed, then the Court cannot Examine it; for the Retorn is good, and the party can have no Aver­ment against the Retorn nor can have any Error. Cro. El. Clay's Case, Hob. p. 13.

But all the ordinary Offices of the Sheriff are transferr'd to the Under-sheriff: And therefore High­sheriff abridge the Under­sheriffs Power. Hob. p. 13. Norton and Sims. if a Sheriff will make an Under-sheriff, provided that he shall not serve Executions above 20 l. without his special Warrant, this Proviso is void. For tho' the High-sheriff may chuse, not to make an Under-sheriff at all, or may make him at Will, and so remove him wholly; yet he cannot leave him an Under-sheriff and yet abridge his Power, no more than the King can in the case of the Sheriff himself. Nor can the Under-sheriff re­strain himself by Covenant; as he being Under­sheriff, is liable to execute all Process, and he hath power to do all that the Sheriff can Trans­fer. And so was the Case of Boucher and Wise­man. In the Indenture between the High-sheriff and Under-sheriff was an Exception, That the Under-sheriff shall not intermeddle with the Execu­tion Cro. El. 440 Boucher and Wise­man. of any Writ above the Sum of 40 l. And per Cur' this Exception was repugnant and void.

Sheriffs Deputy.

The Under-sheriff ought always to have a Deputy attendant in every of the Courts of West­minster-Hall, to receive and execute their Com­mands, and to give account of Businesses which may fall out about the Sheriff. Vide supra.

In case the Plaintiff declares, he sued J. S. on Pleading by Deputy his Depu­tation without Deed. a Latitat directed to the Sheriff of D. and J. S. was arrested; and the Defendant pretending to be Deputy to the Sheriff, took Bond of him and let him at large. The Defendant pleads, the She­riff made him his Deputy, to bail all Prisoners bailable in the County, and thereupon he took Bond of J. S. and delivered it to the Sheriff, &c The Plaintiff demurrs, because he pleads his Deputation without Deed; per Gawdy, it is good without Deed; for a Deputy doth things only as a Servant, and in right of his Master, and so may be without Deed, Cro. El. Clecock and Dennis.

In Rescue the Bayliff of a Liberty arrested the Rescue from the Sheriffs Deputy. party, and delivered him to the Sheriffs Deputy, and saith, not from the Sheriff; yet its good: For in an Action on the Case he shall shew the Truth, as it is in rei veritate Cro. Jac. 242. Kent and Ellicot.

The Deputy shall plead the General Issue, as the Officer himself, by the Stat. 7 Jac. Mo. p. 894 n. 1141.

What Bonds and Covenants between the High-sheriff and Under-sheriff are good.

Covenant by the Under-sheriff, That he will execute any Extent, Liberate, Elegit, or other Ex­ecution Hob. p. 13. not above the Sum of 40 l. is void. Vide supra.

Covenants between the High-sheriff, some are Where some Co­venants are good, and where not. good and some are void; for those that are good, the Bond for performance of Covenants shall stand good. Aliter upon a Statute, as 23 H. 6. c. 10. If the Sheriff will take a Bond for a Point against that Law, and also for a due Debt, the whole Bond is void, Hob. p. 13. Norton and Sims, 14 H. 8. c. 5.

A Bond made by the Under-sheriff to the Bond for discharge of all E­scapes. Sheriff, for discharge of all Escapes, is good: For since he transfers his Authority to him, its reasonable he should take Security of him to perform, 1 Brownl. 83.

Under-sheriff brought Debt against one of Pleading. his Bayliffs on Bond to save harmless in executing Process, &c. and assigns the Breach, That the Bayliff had not executed such his Warrant sent to him, upon a Process directed to him out of the Exchequer, to levy Issues upon certain Lands. Defendant dem [...]urrs, (1) because the Warrant directed to him was made out of the County: (2) Its not alledged, that the Mannor of A. where he was by the Warrant to levy the Issues is within the Hundred where the Bayliff had Jurisdiction; per Cu [...]', its a good Exception, and the Breach is not shewed to be within the Condition of the Obligation; because a Bayliff cannot execute a Precept out of the Hundred where he is Bay­liff, Stiles p. 18. Slaughter and Day.

High-sheriff brought Action of Covenant against Escape tho' after the year, a breach of Covenant. the Under-sheriff, and alledgeth, he was a Sheriff An. 1658. and that one W. was then taken, and suffered to Escape out of his Custody; where­upon J. S. recovered against him, and therein it was alledged, That the Plaintiff 12 Car. 2. suffered him to Escape out of his Custody; its well enough: And any Escape, tho' after the year, would be a breach of Covenant, 2 Keb. 352. Cremer and Humberston.

If any Sheriff take Hire, Gift or Bribe of any Sheriff taking Bribes, or buying the Place of Under­sheriff &c. Under-sheriff, Bayliff, Keeper of the Gaol, &c. for his Place or Office, he may be indicted, sined or imprisoned, Art. super Chart. c. 13. 2 Inst. 566

In Debt on an Obligation to perform Cove­nants, on Oyer it appeared that the Plaintiff was Under-sheriff by purchase, and so void, per 5 Ed. 6. c.

Vide plus infra, sub hic Titulo.

What acts of the Under-sheriff, Bayliffs, Gaoler, &c. the High-sheriff shall be answerable for, or not; or what Actions shall be brought against the Under-sheriff or High-sheriff.

Upon every default in the Execution of his Neglect or Fraud. Latch. 187 Laycock's Case. Office, be it by Neglect or Fraud of the Under­sheriff, he shall answer and be amerced in the Exchequer; but the Sheriff shall not be impri­soned for the act of the Under-sheriff, nor be Indicted.

Per Stat. 14 Ed. 3. c. 10. the Sheriffs shall have the 14 Ed. 3. c. 10. 4 Rep. 34. Mitton's Case. Custody of the Gaols of the Counties, and shall put in such Gaolers as they will answer for. The Sheriff is an immediate Officer to the Courts of the King, and shall answer for E­scapes; and shall be subject to Amerciaments, if he has not the Body ready in Court.

Sir Richard Dyer's Case, Sheriff of Huntington, Escape brought against the Under­sheriff. and his Under-sheriff, in Marsh and Astry's Case. The Under-sheriff suffered one to Escape, and the Action was brought against the Under­sheriff: As if the Clerk in an Office Misenter any thing, he himself shall be punished for it, and not the Master of the Office: because he takes a Fee for it. But if a Retorn made by Sheriff to answer for insufficient Retorns. the Bayliff be insufficient, then the Sheriff him­self shall be amerced, 1 Leon. p. 146. Marsh and Astry.

An Action of Faux Imprisonment, or other Actions against the Under­sheriff. Action may be brought against the Under-sheriff in the Exchequer, altho' the High-sheriff be Officer of the Court; for the Court takes notice of the Under-sheriff also.

Faux Imprisonment against the Under-sheriff; Faux Im­prisonment. for detaining a Prisoner after a Release made, 1 Roll. Abr. 539. Doyley and Jolliff, 3 Bulstr. 96, 97. Withers and Henly.

If the Demandant in a Writ of Entry or Not Re­torning a Writ of Summons. Disseisin deliver a Writ of Summons to the Under­sheriff of the County, and after he summons a Tenant upon the Land accordingly, and not­withstanding doth not Retorn the Writ, Action on the Case may be brought against the Under­sheriff, if the Plaintiff will: For peradventure the Sheriff had not Notice of it, and the Under­sheriff took Fees to execute the Writ; and its said falsò & malitiosè for delay of the Plaintiff, which is imbezelling it, Hill. 32 El. B. R. Marsh and Astry.

Servant of the Bayliff of a Franchise, sworn Where the Bayliff of a Franchise is charg­able. on Deputation to serve Process but of such a sum, and he serves Process of a greater sum sans Warrant, and after levied the Money, and parts with it; the Bayliff shall be chargable, Hetley p. 12.

Latitat issues to the Sheriff of N. who makes his Warrant to the Bayliff of a Liberty to arrest J. S. the Bayliff makes his Warrant to his De­puties: The Deputies Arrest him at VV. out of Sir Tho. Jones Rep. p. 215. Ol­liet and Bissey. the Liberty, and after bring him into the Li­berty, and delivered by them to the Gaoler of the Liberty. Per Cur', The Action of Faux Imprisonment lies not against the Gaoler, for he had done but what belonged to his Office, and is not bound to enquire whether the first Arrest be Tortious, or not; and if he had been informed of it, yet [Page 37] if he had not been privy to the Practice, yet he ought to detain the Prisoner, being delivered to him by a good Warrant: For if such Information had been False, the Gaoler had been liable to an Escape; and the Prisoner is not without his Remedy, for he had a good Action against the Tortfesors; and it seem'd to Maynard, the Action lyes against the Gaoler, because he is as a Servant to the Bayliff of the Liberty. But no such thing appeared in the Record; and in truth he was a Patent Officer by Grant of the Lord of the Liberty. But per Cur', if it had been so, this alters not the Case; for the Bayliff had made his Warrant lawful, and the sole Offence was in the Bayliffs, who execute the said Lawful Warrant illegally.

If the Under-sheriff make a Retorn amer­ciable, Retorn amerci­able. there the High-sheriff shall be amerced; for the Retorn is made expresly in his Name: But if it be a False Retorn whereupon an Action of False Re­torn. Desceit lies, in that case it may be brought against the Under-sheriff, Dr. & Stud. c. 42.

The Sheriff shall answer for the Misdemeanors Misdemea­nors of Bayliffs. Conceal­ment of a Writ. of his Bayliff. Ibid.

If a Warrant on a Fieri fac' be directed to an Under-bayliff of a Liberty, and he levies the Debt, but conceals the Writ, nor makes any Certificate of it, Action on the Case lies against him; for it is a Personal wrong, Mich. 12 Jac. B. R. Bell and Catesby.

Fieri fac' is to levy the Goods of Dawson, and The diffe­rence be­tween the mistake of one person for another, and the Goods of one for another. the Bayliff by virtue thereof took the Goods of Luttrel as the Goods of Dawson, Trespass well lies against the High-sheriff. For albeit had the Under-sheriff taken another Person, he had done wrong and without Warrant, and the Action well lies against him; yet as to Goods, this may be done by colour of the Warrant, [Page 38] and the High-sheriff is chargable in Trespass; and the Retorn of Nulla bona will not alter the case, having no influence on Lutterels Goods. By Windham, the High-sheriff and Under-sheriff are one Officer: And if an Under-sheriff deliver Hab' fac' [...]possess [...] of White-acre for Black-acre. White-acre on Hab' fac' possession' of Black-acre, the High-sheriff is chargable, alitèr of a Com­mon Servant, who is a Trespasser, if he takes one mans Goods as anothers, for which I sent. Also, here is no Special Warrant set forth, therefore all is the act of the Sheriff; and the High sheriff may well bring his Action of Cove­nant against the Under-sheriff, Pasch. 20 Car. 2. B. R. Cremer and Humberston.

If a Bayliff-Errant, or Special Bayliff, Arrest Action is for Rescous against the Sheriff, not against the Bayliff. a man upon a Capias ad satisfaciendum, and after the Prisoner rescues himself, he at whose Suit he was arrested may not have an Action on the Case upon the Escape against the Bayliff, but he ought to have it against the Sheriff; for the Bayliff is but a Servant to the Sheriff, Mich. 32 El. B. R. Atterton and Harwood.

The Gaoler shall answer for his Servant, who Gaoler to to answer for his Servant. Bayliff-Errant. Dr. & Stnd. lib. 2. 127. permits Escapes.

The False Retorn of the Sheriff shall not make the Bayliff punishable in an Action; for he is Bayliff-Errant, and a meer Servant. As the Bayliff Justifies per Sheriffs Warrant; Plaintiff Replies, the Sheriff Retorned upon the Writ, Tardè, Cr [...]. El. 181. Parks and Mosse.

Respondeat Superior.

In all Cases of Escape, the Gaoler who has the 9 Rep 98. actual possession of the Gaol shall answer for all Escapes; but if he have not sufficient where­withal to answer Respondeat Superior, i. e. He that committed the Custody of the Gaol to him.

Yet quaere de hoc. There is no Process directed to a Gaoler, but an Habeas Corpus, and the Pri­soners are in the Eye of the Law, in the Custody of the Sheriff only; and when our Books say, Actions of Escape lye against Gaolers, such ab­solute Gaolers are intended, as Writs are directed to: Tho' I conceive an Action lies against the Sheriff or Gaoler at Election; and if the Gaoler is not sufficient, then against the Sheriff. Vid. Hardress p. 29. Wainright and Griffith, a Case Ar­gued, but not Resolved.

How the Superior, and in what Cases, shall answer for the Inferior, or not.

If a man be sent to Prison on a Statute Mer­chant Dr. & Stud. lib. 2 p. 136 by the Mayor, before whom the Recog­nizance was taken; and if the Gaoler will not receive him, he shall answer for the Debt, if he have wherewith; if he have not, then he shall answer that committed him to the Gaol, as appears by the Statute called Statute Mer­chant.

23 H. 6. c. 10. The Superior shall put in such for whom they will answer.

The Comminalty of London that have the Fee, shall answer for the Sheriffs.

But in such Action against the Superior it must Averment. be averred, that the Inferior was Insufficient: As in Debt against the Dean and Chapter of Pauls, for the Escape of the Bayliff of a Liberty lies not, because it is not averred that the Bayliff was insufficient, 2 Roll. 155 Dyer 278.

Debt was brought on Escape of Holt, Com­mitted How to De [...]l [...]e. to the Fleet on Judgment. Declaration is, That the Defendant, Sir Jeremy Whitchc [...]t, was seised, and granted the Office of Ward [...]n of the Fleet for three Lives to Duckenfield, who [Page 40] was seised, and by Habeas Corpus Holt was re­moved, and by Chancery Committed to the Fleet in Execution; and Duckenfield suffered the Escape, the Defendant being Superior, and Duckenfield insufficient. The Court inclined, That the Superior in this case was chargable: But the Declaration being, That at the time of the Lease and Commitment of the Prisoner, and at the time of the Action, the Lessee Ducken­field was insufficient; and the Verdict is only, That he was at the time of the Lease, and of the Escape and Commitment; but not that he Verdict not pursuant. was Insufficient at the time of the Action, which is the Gist of the Action; and if he was Insuffi­cient at the time of the Action, no Action lieth. And this is necessary to be found on VVestm. 2. c. 11. and this being not found, nor nec unquam postea 25 Car. 2. Plummer & Whitch­cot vid. Sir Tho. Jones Rep. p. 60. Mesme Case. Dyer 278. Gawd [...]es Case. the Escape, the conclusion being so super totam materiam, and the tota materia is not found, &c. a Venire fac' de novo was awarded.

The Duke of Norfolk was adjudged to answer for his Deputy. Dyer 278.

The Duke of Norfolks Case was this, He being Marshal of England, and having Authority to make a Deputy, made Gawdy his Deputy, who was sworn in open Court; afterwards Gawdy Li­censed a Prisoner, who was in Execution to go into Norfolk with a Keeper, and Debt was brought against Gawdy for the Escape. It was adjudged, tho' he was but under Marshal, and the Action brought in Middlesex, supposing the Escape in Shorditch, and not in the County of Surry where the Marshalsea is, that the Action did well lie.

Debt was brought against the Dean and Chap­ter Noy 67. Dean and Chapter of Pauls Case. of Pauls, for an Escape suffered by their Bai­liff of a Franchise, where they had Retorn of Writs. Per Cur. It lies not against them, but a­gainst [Page 41] the Bayliff, for the Writ is directed to him, scilicet, Ballivo Libertatis, and for an ill Retorn the Bayliff always is fined.

The County answers for the Coroners.

The Gaoler of the County shall not answer Where the Rule Resp. Superior hold or not. Escape on Execution, but the Sheriff, and some hold that Respondeat Superior, is only where the inferior Officer is removeable, as Gaoler to the Sheriff.

By Wild and others on VV. 2. chap. 11. It was never intended, that Superior should answer in any other Case than Account.

This as some say is grounded on 13 Ed. 1. c. 11. on 1 R. 2. c. 12. and Respondeat Superior was only in the Kings Case at Common Law. Marshal of the B. R. is but a Branch of the Earl Marshal.

If Execution be directed to a Sheriff to make 2 Brownl. Rep. 50. Execution within a City, and the Sheriff directs his Warrant to the Bayliff, who does it, and af­ter is a fugitive and not able to answer for it; the Lord of the Franchise shall answer for it, Where Lord of a Franchise to answer. and shall be liable to answer for his Bayliff.

He which has the keeping of the Gaol by right or wrong, shall be charged for the Escape of Prisoners. And if he which has the Custody of the Gaol in Fee, substitutes another under him at Will, or for Life, he which hath the a­ctual 9 Rep. 98. Possession of the Office shall be charged (by Action) for the Escape. But if they be not sufficient Respondeat Superior.

Having treated of Sheriffs and Under-Sheriffs, I shall add some few Resolutions, where Tryals shall be by the Sheriff or by the Record.

Of Tryals.

Tryal may be by the Certificate of the Sheriff, By Sheriffs Certificate. Trial [...] per pais. 9. upon a Writ directed to him in the Case of Pri­viledg, whether one be a Citizen or Foreigner. Tryals per Pais. 9.

Whether one was Sheriff such a day or not, Cro. Car. 421. shall be tryed per Pais.

If it be a Question, whether the Sheriff made By the Sheriff. such a Retorn or not, it shall be tried by the Sheriff, If whether the Under-sheriff made such a Retorn or not, it shall be tried by the Under­sheriff. Cro. Car. 421. By the Re­cord. If the Question be, whether such an one be Sheriff or not, he being made by Letters Pa­tents of Record, shall be tried by the Record. As was Smiths Case. Error assigned, because the Venire fac' was retorned by Sir R. S. Sheriff of Essex, and in Crastino Martini 9 Car. and then the said Sir R. S. was not Sheriff, but H. S. the Defendant in the Writ of Error saith, that Sir R. S. was Sheriff of Essex before the Retorn of the said Writ, ( viz.) 10 No. 9 Car. by the Kings Patent, prout patet de Recordo. Upon Nul tiel Re­cord pleaded, at the day he produced the Let­ters Patents in Court, whereby he was made Cro. Car. 421. Smith Case. Sheriff. It was moved, that it ought to be tried per Pais, whether he were Sheriff such a day, and not by the Record of the Patent, for he might be discharged before the day. But per Cur. that shall not be intended, unless it were by pleading shewn to the Court, and so Judg­ment was affirmed.

If it come in Issue, whether he that made the 8 H. 410, 20. Br. Officer 33. Array be Under-sheriff or not; this shall be tried by the County and not by the Officer.

CHAP. IV.

Of Bayliffs of Hundreds; their Nature, Office and Oath. Of Special Bayliffs, and of Promises on making Special Bayliffs, to save harm­less from Escapes. Of Bayliffs of Franchises, their Nature, Power, Office; and of Retorns by them. The manner of Pleading by Bayliffs of Fran­chises. In what Cases the Sheriff may Enter into their Liberties. Of Baliffs of Fees, or Guild­able.

HAving treated of Under-sheriffs, I come now to speak of Bayliffs to the Sheriff, ( viz.) Bayliffs Errant, or Ballivi Intinerantes, or Bayliffs of Hundreds, and Special Bayliffs.

The making of the Bayliffs of Hundreds be­longs to the Sheriff.

By the Statute of 14 Edw. 3. Hundreds (as to the Bayliffwicks of the same) are rejoyned to the Counties, and all Grants made of the Bayliff­wicks of Hundreds since that Statute are void, and the making the Bayliffs thereof belongs to 4 Instit. 267. Fortescues Casae. Hundreds cannot be granted from the Sheriff. the Sheriff; as in Fortescues Case of Buckingham Shire, 2 Car. 1. Fortescue had of late divers Hun­dreds granted to him for Life, in Com' Bucks, reserving a Rent, which the Sheriff disallowed, and put in Bayliffs of his own; and per Curiam, this was against Law, and they belonged to the Office of Sheriff. And so,

A Patent to Execute all Process within an Hundred is void.

There was a Case in 34 Car. 2. B. R. Cle and Ireland, which confirms this resolution. The Sheriff of the County of Leicest' against the Grantee of the Hundred of G. in an Action on the Case, the Grant was by the King of an Hun­dred [Page 44] pur Ans, and on Special Verdict the Que­stion Sir Th. Jones Rep. 194. was, If the Defendant had good Title by such Grant to the said Hundred to hold a Court, and constitute a Bayliff against the Will of the Sheriff, and the Contingent, and incident Fees of Leets, and Courts Barons of the Hundred. And per Cur' all the Hundreds which were not before the Statute of 2 Ed. 3. c. 12. and 18 Ed. 3. c. 9. in Fee by the Crown were joyned to the Office of the Sheriff. And Judgment was given for the Plaintiff against the Patentee.

A Sheriffs Bayliff is not an Officer of the Pract. Reg. 49, 50. Court, that the Court takes notice of.

A Bayliff of an Hundred may Execute a Writ The extent. Pract. 49. out of the Hundred where he his Bayliff, for he is Bayliff all the County over.

Sheriffs Bayliffs shall not be prejudiced by Sheriffs, Bayliffs, not to be prejudiced by the Non­retorn, or the mis­return of the Sheriff. the Non-retorn, or Mis-retorn of the Sheriff. The Defendant (as Bayliff of an Hundred) took Goods in Execution on Fieri fac', and sold them, and delivered the Money to the Sheriff; its good, and no Trover lies against the Bayliff, for they did Execute Secundum Exigentiam Brevis. 1 Leon. 144. Parkes and Hows.

Sheriffs Bayliffs are to take the Oath of Alle­giance To take the Oath of Allegiance. 3 Keb. 561, 552. according to the Statute, 27 Eliz. c. 12. Subpaena 40 l. (viz.) Bayliffs of Hundreds, for they should Execute all Writs, and must attend As­sizes and Sessions; and the Statute requires, that Le Roy ver­sus Bents. they have sufficient within the Hundred, (but the ordinary Bayliffs or Bum-bayliffs need not.) And the words, (that no other Person or Per­sons shall intermedle till Sworn) refer to the subject matter, (viz.) such persons as ought usually to swear as Sheriffs Officers.

The Form of the Deputation of the Bayliff of the Hundred. Vid. Greenwood 53.

The Execution of all Writs, which come to 9 Ed. 2. de vicecom. the Sheriff, shall be done by the Bayliffs of Hun­dreds, such as are sworn, tho' now the use is to put in Special Bayliffs.

Bayliffs of Hundreds shall attend Justices of 27 H. 8. 24. Assize, Gaol-delivery, and Justices of Peace in every of their Courts and Sessions.

Of Special Bayliffs; what they are, and how they stand in the Eye of the Law.

A Special Bayliff to a Sheriff for the time be­ing, Jones Rep. 65. Bath and Salter. he is his Officer, and his Arrest is the Arrest of the Sheriff; and if he suffer a Prisoner to Escape, an Action lies against the Sheriff; and if the Prisoner makes Rescous, the Retorn of the Retorn of Rescous. Rescous shall be, that it was done to the Sheriff himself.

The Statute of 27 El. c. 12. about taking the Jones Rep. 249. Oath that the Under-sheriff takes, extends not to Special Bayliffs.

Inconsideration, the Bayliff will make such an Promise to save harm­less from Escapes. Crok. El. 178. 271. Dabridg­court and Smalbroke. 1 Rol. Ab. 16. Palmer and Smal­broke. one his Special Bayliff, a promise to save harmless from Escapes is good; for he is an Officer ap­pointed by the Plaintiff, and its no reason the Sheriff should be at a loss by his appointment. And this Assumpsit is not within the Statute of 23 H. 6. c. 10. for as the Party may Discharge a Prisoner in Execution, so he may foreclose him­self from the benefit, if the Prisoner Escape and this Action lies, if he brings Escape against the Sheriff. Note, The Delivery of the Writ, and the Promise made, was to the Under-sheriff, and not to the Sheriff himself.

Of Bayliffs of Franchises, and their Power, and Retorns.

Bayliffs of Franchises, or Liberties, are such as are appointed by Lords within their Liberties, to do such Offices within the Precincts of such Lordships or Liberties, as the Bayliff Errant do at large in their County, Hundred, that have Retorna brevium or Franchises.

Note, Bayliffs of Franchises, before they exe­cute The Oaths. Insufficient retorns by them. their Office must take two Oaths, one con­cerning the Supremacy, the other concerning the executing their Office. Vide Supra. Tit. Un­der-sheriff.

Fines and Amerciaments for insufficient Re­torn Where the Sheriff may enter the Franchise or not. of Writs, or other Process made by the Stewards, or Bayliffs of Liberties shall be set upon the Heads of such Stewards or Bayliffs, and not upon the Sheriff. per Stat. 27 H. 8. c. 24.

Hundred by Grant, that hath a Bayliff by 3 Keb. 71. 125. particular Lord, is but his Servant, and the Sheriff Monday and Frogat. Bayliffs of Franchises cannot as such, take Bonds for appearance in the She­riffs name must retorn his Precept. usually makes another Bayliff to execute there: But a Bayliff of a Franchise Hundred, may wave his Franchise, and Arrest as a Sheriffs Bayliff; and then he may take Obligation in the name of the Sheriff, for properly a Bayliff of a Franchise cannot take a Bond for appearance in the Sheriffs name; but Bayliff of Hundreds may, Dalt. 544. cont.

2 Keb. 838. Grene and Jones. The Baliff of a Liberty must Retorn his Pre­cept and set his name to it; and a Bayliff Itinerant need not.

Keb. 86. 87. They cannot Arrest a Man without a War­rant to them by the Sheriff, and if they Retorn not the Warrant to the Sheriff, the Party Ar­rested may have his Action of false Imprison­ment against the Bayliff.

A Bayliff of a Liberty cannot execute a Cap. Cannot execute a Cap. Utlag 3 Jac. 1. per Cur' in B. R. Utlag. and if the Party be in the Hands of the Bayliff, the Sheriff may take him, for it is a non omittas in it self.

In all Cases where the King is Party, the Pro­cess must be with a non omittas propter aliquam Libertatem, and there the Sheriff shall not send his Precept to the Bayliff of a Liberty, but shall enter himself ex officio, as for apprehending of Felons, or any act at the Suit of the King, al­ways Dalt. 456. extant on Stat. Merchant, vid. Stat. de Mercatoribus.

But in other Cases where the King is no Par­ty, there if without a non omittas the Sheriff shall enter a Franchise to execute the Kings Process, the Execution of the Process shall be good; but the Lord of the Liberty shall have an Action against him, and the Party Arrested shall have no remedy.

If Goods are Distrained and Impounded in a Liberty, the Bayliff is to make Replevin and Deliver them, but if the Bayliff will not, or did not Deliver them, after the Sheriff hath made Retorn of the Kings Writ to him, then the Sheriff shall enter and Deliver them. per Stat. 52 H. 3. 21 Ed. 1. 17. and in such cases the Sheriffs Retorn will not serve.

A Writ of Enquiry of Damages directed to the Sheriff, cannot be executed by a Bayliff of He cannot execute a Writ of Enquiry of Damag [...]s directed to the Sheriff. a Liberty, but by the Sheriff himself; so in Redisseisin, for he is both Judge and Officer there. Hob. p. 83. Vizey and Gunstone.

Bayliff of West­minster fi­ned because the Gaoler of the Gatehouse, refused to charge a Prisoner with the Sheriff of Middlesex his Warrant 3 Keb. 479. Briton and Grif­fith. One was in Prison in the Gatehouse, by a War­rant from Secretary Coventry for Mi [...]demeanors, and the Gaoler refused to charge him with a [Page 48] Warrant of the Sheriff of Middlesex at the Plain­tiff Suit. Per Cur' the Gaoler cannot dispute it, tho' the Court may give leave or refuse it; and the Bayliff of Westminster on pain of 20 l. was order­ed to Return the Writ.

Of Retorns by them.

A Bayliff who Executes a Writ, and is re­moved Of their Retorn of Writs to the Sheriff. More 431. Palmer and Porter. More 402. Atkinson. before the Retorn, may make the Re­torn to the Sheriff, and he over to the Court, but if he Executes it not, he shall not make the Retorn, but the Retorn of Nihil or non est in­ventus tis to be made by the New Bayliffs.

The Sheriff Retorns, Mandavi Ballivo qui mihi dedit responsum qd' cepit corpus, & A. fecit Rescous. Its a good Retorn. But Mandavi Ballivo qui cepit carpus, & A. fecit Rescous is not good in Redis­seisin, and that he cannot Retorn Mandavi Bal­livo, &c. Vide pluis tit. Retorn.

A Man may aver against the false Retorns Averment against the Retorn. Dalt. 545. of Bayliffs of Liberties, and shall recover as well against them, as against the Sheriff too of se­veral Issues retorned. Dalt. 545.

Where the Precept is made to the Sheriff by Force with­in a Liber­ty. Dalt. 545. the Justices of Peace, to retorn a Jury to en­quire of a Forceable Entry, and the Force is within a Liberty, the Sheriff shall direct his Pre­cept to the Bayliff of the Liberty to Retorn the Jury, the Bayliff must make a due Retorn as to Issues on Jurors, &c.

Note, The Bayliff shall never take benefit of 5 Rep. 92. his Liberty. If Capias or fieri fac' comes against the Bayliff, the Sheriff shall execute the Pro­cess on him, or his Goods, within the Liberty; and where the Bayliff of the Liberty is party to the Suit, he shall not Retorn the Jury, but the Sheriff.

Where and in what Cases the Sheriff may Enter into a Franchise.

Wheresoever the King is a Party, as in every Felony or suspicion of Felony, or otherwise in 5 Rep. 92. any Action, the Sheriff ex officio is to enter the Franchise, and to execute the Process him­self.

In a Writ of Wast and Redisseisin, the Sheriff must enter the Franchise, to make enquiry, &c.

So where the Bayliff nullum dedit responsum.

So to Deliver a Distress.

But 'tis safest for the Sheriff in default of the Bayliff, to have a Writ of non omittas propter Li­bertatem.

On extent upon Stat. Merchant, the Sheriff is to enter the Franchise.

If the Sheriff enter on non emittas, by reason Terms Ley. of the Bayliffs default, and Execute the Writ, the Sheriff shall warn the Bayliff of the Fran­chise, that he be before the Justices at the day contained in the Writ, and if he come not, and excuse himself, then all Writs judicial in the same Plea, shall be Writs de non omittas.

The Sheriff in his Retorn is to set down the name of Baliff of the Liberty.

Pleadings by Bayliffs of Franchises.

Trespass for taking away a Mare; the De­fendant He must shew the Jurisdiction of the Court. saith, That before the Taking the Defendant (being the King's Bayliff) by Precept out of the Court of Pomfret, to make Execu­tion, &c. on Levari, &c. Per Cur', Its ill, because he doth not shew the Jurisdiction of the Court; and that is necessary by the Bayliff of an In­feriour [Page 50] Court, especially because he Justifies by 1 Keb. 53. Crofts and Wilkinson. reason thereof, as in the Countess of Rutlands Case; and it must appear that the Court hath Cognizance of the Cause, aliter he cannot exe­cute there Precept.

Action on Escape, and declares he delivered a Writ to the Sheriff of Nottingham, who made a Warrant to the Bayliff of the King's Liberty Plead, Rescue from the Deputy of the Bayliff of a Li­berty. of Newark to execute it; which Warrant was delivered to one L. Deputy of the Lord Bur­leigh, Ballivo Libertatis Dom' Regis Wapentagii sui de Newark, who Arrests him, and the Defen­dant Rescued him out of the Custody of the said Deputy. He saith, he was Rescued from the Deputy of the Bayliff of the Franchise; and does not say, from the Bayliff himself, or the Sheriff. Per Cur', its good: For in this Action on the Case he shall shew the Truth, as it is rei veritate, and its not like the Retorns of Rescues or Indictments, which say, it was done to the Sheriff or Bayliff himself. It was moved for Error, Secondly, because it is alledged, the Lord Burleigh was Ballivo Libertatis Dom' Regis de Newark, and the King cannot have any Li­berties; for they are extinct when they are come to his hands. Sed non allocatur: For the King may have such Liberties by the suppression of Abbies, (which are not extinct, but revived per Stat. 32 H. 8.) or by some other ways, and it shall not be intended to extinct unless it be shewed.

And the Bayliff of a Liberty may well have Bayliff of a Liberty may have Deputy. a Deputy, Cro. Jac. 241. Kent and Ellwis.

Power of Bayliff of Franchises and Pleadings.

The Bayliff of a Franchise cannot take a Difference between Bayliffs of a Fran­chise and Sheriffs Bayliffs. Bond for Appearance in the Sheriffs Name; but Bayliffs of Hundreds may. Vid. 3 Keb. 552. Ellis's Case.

Hundreds that have Retorn' Brevium are Fran­chises.

Hundred by Grant, that hath Bayliff by par­ticular Lord, is but his Servant, and the Sheriffs usually makes another Bayliff to execute there. But a Bayliff of an Hundred may waive his Franchise, and Arrest as Sheriffs Bayliff, and then he may take Obligat' in the Name of the Sheriff also, 3 Kcb. 71. Munday and Frogate.

The Bayliff of a Liberty must Retorn his Precept, and a Bayliff Itinerant needs not, 2 Keb. 838. Green and Jones.

A Plaint being before the Bayliffs of Bury, they directed a Warrant to the Under-Bayliffs to take the party, Ita quod habeant Corpus ejus coram Ballivis ad prox' Cur' tenend', (tal' die.) The Under-Bayliffs arrested him, and committd him to Prison, sub Custod' Def. S. T. The Action on the Case lies not against the Defendant; for the Prisoner was not Committed to him by any Lawful Authority; it was Ita qd', but not to Commit him: And the Action lies against them, if they have him not at the Day, Cro. El. 743. Baldry and Johnson.

If Execution be directed to a Sheriff, to make Lord of the Fran­chise to answer for his Baylif [...] Execution within a Liberty, and the Sheriff directs his Warrant to the Bayliff, who does it, and after is a Fugitive and not able to answer for it, the Lord of the Franchise shall answer for it, and shall be liable to answer for his Bayliff, 2 Brownl. 50.

There are other sorts of Bayliffs, which are Bayliffs of Fee, and are Officers of Fee within their Jurisdiction and Precinct. And for the Execution of Process there, the Sheriff shall not write or send his Precept to these Bayliffs, as to a Bayliff of a Franchise, but as to the Bayliff of Gildable; and the Sheriff shall return his An­swer, Dalt. 543. and make his Retorn as if the Sheriff himself had served the Process; and the Retorn thereof shall be in the Name of the Sheriff, and shall not make mention of the Bayliff of Fee: But if such a Bayliff will not Execute the Process, a Non omittas shall go out to the Sheriff.

The Mirror of Justices saith thus: If the Mirror of Just. lib. 4. Bayliff of a Franchise does not make Execution of a Retorn of the Sheriff, the Sheriff may enter into the Franchise, and the King shall recover the Seisin, and so that shall become Guildable which before was Enfranchised.

CHAP. V.

Of the County Court. The Nature of it. Its Juris­diction, as to the Sum it holds Plea of. Of the time and place. The Forms of the Original Pro­cess. Of Execution there. Of the County Clerk. Of Replevin. The Sheriffs Office, and demeanour therein, and the Retorns thereof, what are good, or not. Pone. Withernam. The manner of Re­plevying. The Retorno habendo. Second Deli­verance. Property. Pledges in Replevin. The Form of the Entry of the Plaint. The Form of the Precept in Replevin. The Form of the Bond for Security. Of Accedas ad Curiam. Recor­dari fac' Loquelam. Of the Writ of Justicies. Of the Sheriff Tourn, Jurisdiction and Plead­ings.

Of the County Court, &c.

THis Court is no Court of Record, but only a Court Baron, and the Suitors are Judges. But in a Redisseisin the Sheriff is Judge, by the Statute of Merton, cap. 3. and a Writ of Error lieth of his Judgment.

The County-Court is incident to the Office Incident to the Office of Sheriff. of Sheriff, and so is the Entry of all Proceedings there; and therefore if the King grant the Office of Clerkship of the County Court to M. and constitute J. S. Sheriff of the same County, its a void Patent, tho' it be granted when the Sheriffwick is vacant, yet the new Sheriff shall have it. And in all Writs directed to the Sheriff concerning the County-Court, the King saith, In Comitatu tuo, and in Retorns of Exigents made by him he saith, Ad Comitatum meum tent'. [Page 54] In False Judgment it is said, In pleno Comitatu tuo 4 Rep. Mitton's Case. 4 Inst. 266. Recordari facias Loquelam, &c. Sub sigillo tuo, &c. Also in a Precept of Tolt, to remove a Plea out of the Court Baron into the County Court, it is, Summoneas, &c. qd' sit ad Comitatum meum. And it is the Sheriffs Court, tho' the Suitors are Judges.

The Style of the Court is,

Buck's. Curia prima Comitatus E. L. Mil', Vice­comitis Comitat' praedict' tent' apud B. &c.

And the next Court, Curia secunda, and so forth.

Tho' it be said commonly, that the Suitors By Pre­scription the Sheriff may be Judge. are Judges; yet by Prescription the Sheriff may be Judge, as it was in Car. 2. There is a Court called Curia Comitatus, in the County Pa­latine of Durham, and the Sheriff is Judge: And tho' in the County Court the Suitors are Judges; yet by Prescription it may be held before the Sheriff, 2 & 3 Ed. 6. c. 25. Vid. Stat. Mod. Rep. 172.

As a Court Baron by Special Prescription may be held Coram Seneschallo: So in Norton's Case, Indictment was brought of Perjury in a Plea depending in the County Court, in Action on the Case for 3 l. Errors assigned were, First, It is not said how the Plea was depending, as by Justicies or Plaint Entred: And, Secondly, It is said, in the County Court held coram the Sheriff & Sectatoribus, and saith not per Consuetudinem, quae Curia concessit, 3 Keb. 370. Dom' Rex and Norton.

The Jurisdiction of the County Court.

This Court holdeth no Suits of Charters for Lands, or for Inheritance, or to make several Plaints upon one entire Debt; nor any Action to compel one to render an Account, tho' it be under 40 s. because the Sheriff cannot assign 2 Inst. 380. Auditors, who are Judges of the Record, and the County Court is no Court of Record.

And they cannot hold Plea of any Debt due by Record.

In Action of Trespass there holden, no Force shall be supposed.

It holdeth no Plea of Debt or Damages to the value of 40 s. or above; but by Justicies he may. Vid. infra.

Nor of any Trespass Vi & armis; because a Fine is due therein to the King, and no Court 2 Inst. 311. can assess a Fine, but a Court of Record.

Yet if the Debt be 40 s. or above, and the Plaintiff will acknowledge in his Declaration the receipt of so much as to bring it within 40 s. in this case the Plaint is good: But he can­not Id. ibid. split a Debt into several Actions, and if he do, the Defendant may plead the same to the Jurisdiction of the Court; or may have a Pro­hibition to stay that Indirect Suit, or move for Attachment against the Steward.

It is holden once every Month, upon a Day Time. certain, the Month being computed according to 28 Days; and the Reason is, because of the Writs of Exigents, which must be Proclaimed there, 9 H. 3 c. 3. 2 Ed. 6. c. 25.

Vide tit. Outlawries.

The County Court is kept once a Month at a Day certain; because the Kings Writs of Exi­gents are to be Proclaimed there, and the Exigent [Page 56] is to be directed to the Sheriff in this Court, and he upon the Exigent doth proclaim, or call the parties (Sued in Courts above) to render their Bodies, &c. or else to be out of the King's Pro­tection. And the Coroners are to sit with the Sheriff at every County Court, there to give Judgment upon Outlawries. And as to these Matters, the County Court is a Court of Record. But in London, the Judgment upon Utlaries is given by the Recorder, Co. Litt. 288.

This Court may be kept at any place within Place. the County, at the Sheriffs pleasure; but not out of it.

But by Stat. the Sheriff of Northum­berland is to hold his County Court in the Town or Castle of Alnwick, and in no other place.

The Sheriff of Sussex is to hold his County Dalton 157, 158. Court one time at Chichester, and another time time at Lewis; and so alternis vicibus.

The Process.

The Original Process of this Court, (viz.) Summon, Attachment and Distress Infinite. A Distringas or County Warrant, is a Precept issuing out for a Debt under 40 s. And its Form is thus:

Praecept' est Ballivo ibid', Qd' Distringat F. D. per omnia bona & catalla sua, qd' sit ad prox' Comi­tat' meum ad respond' A. B. de placito debit', &c. Teste, &c.

If on Trespass;

Praecept' est ibid', Qd' Attachiat' C. D. per omnia bona & catalla sua, qd' sit ad prox' Comitat' meum de placito Debiti, or Transgressionis, &c.

And the Goods or Chattels, whereby the Defendant is so Attached or Distrained, the Bayliff shall keep them till the next County Court, except the Defendant replevy the same by two Pledges distrainable within the County; which Pledges shall become Sureties, that the Defendant shall appear at the next Court, to answer the Plaintiff in his Plaint: But if he do not replevy the Goods, and that the Defendant makes default at the next Court (at the Day given him by the Attachment) the Court shall award the Goods so Attached to be forfeited, and shall keep the Goods so forfeited.

So in Distress, which must be plevied by four Mainpernors.

If the Distress be mainprized, and the Defen­dant makes default of Appearance, the Court shall amerce the Defendant and his Mainpernors. And in both Cases the Defendant shall be Di­strained again to be at the next County Court. And the Entry is thus:

J. S. opp' se versus C. D. de placito debiti, &c. & The Entry of an Alias Distringas. ipse non venit; & Ballivus retornavit, qd' distrinxit eum per unum bovem pretii 5 s. Et manucapt' per E. F. G. H. I. K. L. M. ideo in misericordia Et sicut prius Distringatur, &c.

And so Process shall be made by Distress In­finite.

Note, For every default of Appearance the Dalt. 503, 504. Defendant is Distrainable, till he come into Court.

Note, That the Goods attached or distrained in the County Court (whether upon a Justicies, or otherwise) shall be forfeited on default of Appearance, by the Defendant, at the Day given him by the Process.

It has been a Question, How Execution shall be after Recovery in County Court? Not by Of Execu­tion in Court-Baron. Capias is agreed, except in Wales.

But by Fitzherbert 20. b. and Finch 68. the safest way (in this Court, and so in Hundred Court, or Court Baron) is to have an Executione Judicii directed to the Sheriff, &c. and then the Sheriff may make Execution, as in a Court of Record, by Fieri fac', or Levari.

If the Defendant doth not appear the next Duces te­cum for Non-appear­ance. Court after the Distringas executed, then there issues out a Duces tecum to cause him to Appear; and then an Alias, and a Pluries duces tecum, and so ad infinitum.

The Sheriff may before any County Court Summons. award a Summons to his Bayliff, Retornable within two or three days, at his discretion, to summon the Defendant by his Goods, to Answer, &c. And If the Bayliff Retorn Nihil, and the Plaintiff removes the same by Pone into Pone. the Common Pleas, the Court shall not grant a Capias, 4 Inst. 266.

The Sheriff before the next Court day after his Election, must depute and constitute a County Clerk to keep the Court; and the Stat. County Clerk. 1 H. 5. cap. 4. prohibits such a County Clerk to practice as an Attorney in the same year. And this County Clerk ought to Retorn no Plaints (except in case of Replevins) out of Court; but in full County sedente Curia; yet its now done otherwise.

And at the Adjorning of every Court he must Adjorn­ment of the Court to a Day certain. appoint a Day certain for the next Court, to the intent the Country may know at what time to resort thither, to hear the Kings Writs of Exigents, and Proclamations Read.

Of Replevin, and the Sheriffs Office and Demeanor therein, and of the Retorns.

This being a main Branch of the Sheriffs Du­ty as to the County Court, I shall treat of it, so much as concerns the Sheriff and his Office.

Replevin is a Writ, and lieth where any man distrains another for Rent, &c. Then he who is distrained, shall have this Writ to the Sheriff (called Replegiari Facias) to deliver to him the Distress, and shall find Sureties to pursue his Action; or if he pursue it not, or it be found and adjudged against him, then he that took the Distress, shall have again the Distress; and this is called the Retorn of the Beasts; and in such a Case lies the Writ de Retorn' Habend'. This is when Goods are replevied by Writ, and is at the Common Law.

This Writ is Vicountiel, and in nature of a By Writ. Justicies, in which the Viscount shall hold Plea in any value, and is not Retornable; but it may be removed into the Kings-Bench or Common-Pleas by Pone: By the Plaintiff without Cause, Pone. and by the Defendant with Cause shewn in the Writ. Co. Mag. Chart. 339,340.

If a Replevin be sued by Writ, and the She­riff retorn that the Cattle are not to be found, then a Witherman shall be awarded against the Defendant; and if a Nihil be retorned, then an Alias and a Pluries Withernam, and thereup­on Withernam an Exigent.

If the Defendant upon the Retorn' Habend' ad­judged for him, cannot have retorn of the Beasts; and upon the Retorn' Habend' the Sheriff retorn that the Cattle, first taken, are dead, he may have a Scire Fac' against the Pledges; and upon Scire fac. a Nihil retorned on that, he may have a Scire [Page 60] fac' against the Sheriff; for insufficient Pledges are no Pledges, 1 Brownl. rep. 168. Replevy by Plaint.

Replevin by Plaint, and that is by the Stat. of Marlbridg, c. 21.

The Sheriff by Plaint made without Writ, may either by Parol or by Precept command his Bayliff to deliver them, i. e. to make Reple­vin of them, Col 2 Inst. 139, 140.

When the Distress is taken and impounded infra Libertates, which have retorn of Writs, the Sheriff must make a Warrant to the Bayliff of the Liberty to make deliverance; and if he will not, the Sheriff may enter and do it. If the Distress be taken extra Libertates, and im­pounded within, the Sheriff upon Plaint made, may presently enter and make deliverance, Co. Mag. Chart. 139.

If they are impounded in a Castle or House, Sheriff may break Castle, House or Close to make Re­plevin. the Sheriff may break it, and make Replevin, and he cannot retorn he was resisted, for he may take the Posse Comitat', Cok. 2 Instit. 105, 194.

If the Beasts be imparked in a place inclosed which had a Gate open, and the Writ comes to make Replevin, and the owner stands at the Gate to shoot him, he may break the Close to make Replevin, 2 Roll. Abr. 565. b.

For necessity the Sheriff may enter a Plaint Replevin made pre­sently. before himself, and after retorn it in the Coun­ty Court, that so the Cattle may not perish, 1 Keb. 205.

He may take a Plaint out of the County Court, and make Replevin presently, and not stay till the next County Court, which is holden from Month to Month.

Cattle being distrained for Rent or Damage The man­ner of Re­plevying. Fesant, &c. The Owner of the Cattle must go to the County Clerk (or some Deputies in the County, for the granting out of Replevins) [Page 61] for a Replevy to be directed to the Bayliffs to replevy them; and the Party must be bound in an Obligation to the Viscount to prosecute his Acti­on against him, or them that did take the Cat­tle, or to make retorn of the same Cattle to the Distrainer, if he by Justification or Avow­ry do recover. And if he pursue it not, or be found against him, then he that ook the Di­stress, shall again have the Distress, and shall have a Writ from above, de Retorn' Habend' in such Retorn' Habend'. case.

If the Goods cannot be taken by the first Re­plevin, then issues forth an Alias, then a Pluries, then a Toties, then a Withernam. If the Sheriff retorn that he cannot replevy the Cattle be­cause Retorn. that they are Eloyned (or he cannot have the view of them) for the Sheriff must make enquiry if the Retorn be true; and if so, then he must make a Precept to the Bayliff in Wither­nam, i. e. to take as many other Cattle, and he may have an alias and a Pluries Withernam, and Withernam so in infinitum, but hath no other remedy in the County.

This sort of Replevin may be retorned out of the County into the Court of Common-Pleas by Re. fa. lo. Recordare fac' Loquelam.

The Sheriff upon a Retorn' Habend' may en­quire the Kinds of the Cattle, if the Count or Avowry be uncertain, 1 Leon. 193. Rigden & Palmer.

In a Replevin, no such Beast, is not a good What is a good Re­torn in Re­plevin or nor. Retorn; but Averia Elongata, or Null' Venit ex Parte Querentis ad monstranda Averia. 2 Leon. 67. Sheriff on Replevin of Goods saith, that none came to shew him the Goods, its a good Retorn, 1 Keb. 184. for he cannot know the Goods without shewing of the Party.

If J. S. sue a Replevin to the Sheriff, and Sheriff makes Re­plevin of a Stranger, he is a Trespasser. shews him the Cattle of J. N. and saith they are his Cattle, and he makes Replevin of the Cattle, he is a Trespasser to J. N. and the She­riff may have an Action of Trespass against J. S. for his false Information: For the Sheriff at his Peril must take notice whose Cattle they be; but if there be any fraud in the matter, he may aver that, 3 H. 7. 14 H. 4. 1 Brownl. 211. Buckwood and Beal.

If a man have Judgment to have a Retorn upon a Nonsuit in a Replevin, and the Plaintiff brings a second Deliverance, this is a Supersedeas of the Retorn; yet the Defendant in the Reple­vin shall have a Writ to enquire of Damages; but if he have Judgment in the second Delive­rance, then it shal be retorned Irreplevisable, and he shall recover Damages, Hill. 43 Eliz. D. C. Goldsborough p. 185.

If the Sheriff doth not his Office in such Cases, an Attachment to the Coroners lies against him, Reg. Orig. 81. a.

As to the Sheriffs taking Pledges, vid. sab titu­lo Pledges, & infra.

If the Sheriff retorn fugavit in another Coun­ty, or that the Bayliff of the Liberty retorns elongata, or that he cannot have the view, in all these Cases a Withernam shall be awarded, 1 Rep. Withernam 145. b. Ann Mayowes Case.

The Writ of Withernam ought to rehearse the Retorn of the Sheriff.

At Common Law a man might have been non-suited in Replevin, and have had new ones in infinitum. But West. 2. c. 2. restrains the Plaintiff for having any more Replevin after No more Replevin after Non­suit, but Second De­liverance. Non-suit, but gives the Writ of Second Delive­rance, Cok. 2 Inst. 240. This Writ is a Superse­deas in Law to the Sheriff, that he make no Re­torn [Page 63] to the Defendant on the former Non-suit, Cok. 2 Inst. 341. This is taken away as to A­vowry for Rents, by 2 Stat. K. Charles 2.

In a Replevin if the Process continue until a Pluries issue out of Chancery, and the Sheriff retorn Retorn that the Defendant claims Pro­perty. upon this in B. that the Defendant claims pro­perty; altho' no day is expresly given by this Writ to the Parties, but to the Sheriff only to excuse his Contempt for not serving the Process before; yet upon the retorn of this Writ the Parties may appear and Plead ( viz.) The Plain­tiff may declare, and the Defendant may plead to it, and it shall not be erroneous; for there, is no other Writ to be served after this Writ; there­fore if the Parties might not plead upon this, it would be a great mischief. So if the Pluries be retorned Tres Michaelis, and nothing is done till Paschoe afterwards, yet at this Term the Parties may appear and plead if they will, 1 Rol. Abr. 581. Gawen and Ludlow.

Where the Defendant, when the Sheriff comes Where in a Replevin the claim of Proper­ty by the Defendnat shall hin­der the de­livery of the Goods by the She­riff. to make Replevin, claims Property, the Sheriff cannot proceed; for it is a Rule in Law, the Property ought to be tried by Writ; therefore in that Case, where the Trial is by Plaint, the Plaintiff may have a Writ de Proprietate Proban­da directed to the Sheriff to try the Property; and if it be found for the Plaintiff, the Sheriff is to make deliverance; if for the Defendant, then he can no further proceed, Cok. Litt. 145. b.

And to try the Propersy, the Sheriff ought to take with him Custod' Placit' Coron'. Dier. 173.

In Replevin the Plaintiff claims Property, and thereupon a Writ issues to the Sheriff to try the value, 2 Keb. 550. Wetherlyes Case.

Where one sues a Replevin, but hath not the delivery of the Goods, and the other Avoweth, and the Plaintiff sheweth the Defendant is yet [Page 64] possess'd of the Goods, &c. and prays that the Defendant may gage Deliverance; then he shall Gage-deli­verance. put in Sureties and Pledges for the deliverance, and a Writ shall go forth for the Sheriff to de­liver them.

Where the Replevin is by Plaint, there it may be removed out of the County into the Com­mon-Pleas by Recordare, and the Sheriff hereupon is Recordare. to summons the other Party to be in the Common-Bench or B. R. at a day Certain; and of all this he is to make Certificate under his own Seal, and the Seals of four Suitors of the same Court.

In Replevin the Sheriff ought to take two Two sorts of Pledges in Reple­vin. sorts of Pledges by the Common Law, Pledges de Prosequendo; and by the Statute, Pledges de Retorn' Habend', Cok. Com' 145. b.

And Note, The Sheriff must take Sureties and not a Pawn.

Therefore where one brought Replevin, and the value of the Goods taken was 20 s. and the Bayliff took 3 l. 10 s. for Pledges, and not Sure­ties, and the Party brought an Action on the Stat. W. 2. and resoved that the Action lies, Jones p. 378. Cro. Car. 446. Moyser and Grey.

If Pledges de Prosequendo are not found, and Judgment given, the Process is erroneous, 9 Rep. Husseys Case.

But these Pledges may be found to the Sheriff, May be found at any time before Judgment. Scire fac. against the Sheriff up­on retorn of nihil as to the Pledges. or in Court, at any time before Judgment, but not after.

If upon the Writ to have retorn of the Beasts of the Pledges, the Sheriff retorn nihil, then may the Plaintiff have a Scire fac' against the Sheriff, qd' reddat ei tot Averia, or tot Catalla; and so of a Bayliff of a Franchise, Cok. Mag. Chart. 340.

But as to the Pledges de Retorno Habendo, they are given by the Statute of W. 2. c. 2. and an Action is given against the Sheriff if they are not found; but this does not make the Pro­ceedings erroneous. Per totam Curiam. Jones p. 439. Grosse and Boscawen. So is Tregooose and Winnell's Case.

Pledges in Replevin on Retorno habendo were not taken by the Sheriff, according to the Sta­tute of W. 2. c. 2. after the Plaint was removed into the Common-Bench by Recordare; yet Pledges may be found by the Court. For the Pledges given by the Statute of W. 2. are only to give Remedy against the sheriff for his neglect, and the Pledges may be found at any time before Judgment, Cro. Car. 594. Tregoose and Winnell.

If a Withernam be awarded for the Plaintiff Wither­nam. Retron. of the Beasts of the Desendant, and the Sheriff Retorns he had taken the Beasts of the Defen­dant in Withernam; but none comes from the Plaintiff to have them. And now the Plaintiff prays a Writ to the Sheriff; to deliver the Wither­nam to him; and the Defendant prays, that the Plaintiff gage Deliverance; and saith, that part of the Beasts which he took are dead by the default of the Plaintiff, and the remnant he is ready to deliver. In this Case the Plaintiff shall In what case the Plaintiff shall not have deli­verance of the Wi­thernam to him. not have Deliverance of the Withernam to him; but it shall remain in the custody of the Sheriff, until a Writ issue to the Sheriff, for the Plaintiff to have Deliverance of his Beasts; and then shall come in debate in whose default the Beasts are dead, 44. Ass. 15.

Note, If J. S. be Sheriff, and the Distress be taken by him, there the Writ or Plaint shall be in Common Form, naming the Sheriff by his [Page 66] Christian name and Sir-name— quae J. S. cepit, and not— quae tu ipse cepists; and the Sheriff in that case ought to make Deliverance, C. Magna Charta 139. Reg. Orig. 81. b.

A Declaration in Replevin was for 100 Ewes Delivery by the Sheriff must be according to the Writ. and Weathers, and it doth not appear how many there be of Ewes, and how many there be of Weathers, and the Sheriff is bound to make delivery of the one sort and of the other: For the Delivery of the Sheriff must be accord­ing to the Writ, &c. and the Declaration was held ill. But Ewes without addition had been good enough, and the Sheriff must have delivered the one sort and the other, if the Writ be for Oves matrices the Sheriff cannot deliver Wea­thers: So if for black Horses the Sheriff cannot deliver white, but is subject to Action on the Case. Allen p. 33. Moor and Clypsam.

Of Retorns.

De Pone.

The Sheriff Retorns, He had attached the Goods per plegios, and the Form of such Retorn, vide 2 Sanders 333.

De Recordare fac' Loquelam, Dalt. c. 72.

Retorn' sur Replevin de retorn' habend', Ibid. c. 73.

Retorn' averia clongata, vid. le Form ibid.

Retorn', quod accessi ad locum, & visum habere non potui, Ibid.

Where the Plaint is in the County Court, of the taking and withholding Cattle and Goods; the Entry is thus:

JS. queritur versus J. D. de pl' ito Captionis & in­justae detentionis averiorum ipsius J. S. contra vad' & pleg'. Et invenit plegios tam de clamore suo prosequendo, quam de averiis suis retornand', si retorn' inde adjudicetur, (viz.) J. D. & R. H.

And the Precept of Replevin is thus:

War'ss. A. B. Miles, Vic' Comitat' praedict' Bal­livo Handred' de H. nec non J. S. Ballivo mec hac vice; Et eorum ulterius conjunctim & divisim, salutem. Quia W. P. invenit mihi suf­ficien' securitatem tam de clamore suo prosequendo, quam de averiis suis, videlicet, bove uno quem J. C. cepit & injuste detinet, ut dicitur retorn', si retorn' inde adjudicetur. Ideo ex parte Dom' Regis vobis & utrique vestrum conjunctim & divisim mando, qd' repleg' & delib' fac' praefat' W. P. bovem suum praedict', (or, averia sua praedict', if several;) Et quod ponat' seu, &c. per vad' & salvos plegios prae­fat' J. C. ita qd' sit ad prox' Comitat' meum apud, &c. tenend' ad respondend' praefat' W. de pl'ito captionis & injustae detentionis bovis sui praedict'. Et qualit', &c. mihi ad prox' Comitat' meum certifi­cetur seu, &c. sub periculo incumbente;

Dat' sub sigillo Officii mei die, &c.
Per me A. B. Mil', Vicecom'.

If this Replevin be granted by the Deputy, then the must set his Name to the Replevin thus: ‘Per me J. A. unum Deput' dict' Vicecom', secundum formam Statliti.’

The Sheriff, or his Deputy, before this Precept made, ought to take (a Bond or Pledge) sufficient Security De prosequen', or Retorno habendo. The Form of it is thus:

NOverint Universt per presentes me Wilt' P. de C. &c. teneri & firmit' obligari A. B. Mic Dic', Com' pred' in decem libris bone, &c. sol­vend' eidem Dicecomiti, &c. Ad quam quidem soluc̄onem, &c.

THe Condition, &c. is such, That if the above­bounden W. P. do appear at the next County Court to be holden at, &c. and then and there do prosecute his Action with effect against J. C. for wrongful taking and detaining of his Cattel, ( viz. one Gelding, &c.) as is alledged, and do also made Retorn thereof, if Retorn thereof shall be adjudged by Law, and also do save and keep harmless and indemnified the above named sheriff, Under-sheriff, and Bayliffs, for, touching and concerning the deli­very of the said Cattle, That then, &c.

If the Sheriff delivered Goods, and the Plaintiff becomes Nonsuit, if the Defendant be ready in Court to avow the Taking, then there shall be awarded to the Defendants Retorn of the Beasts in this manner.

A. B. Mil', Com' praedict' Ballivo Hundred' de H. &c.

Vide Dalt. 523.

[Page 69]

Accedas ad Curiam, Recordar' fac' Loquelam.

If False Judgment be given in any other Court Baron than in the Sheriffs County Court, then the Writ of Faux Judgment is called Acce­das ad Curiam.

By this Writ the Sheriff must make a Record of the Plea, or Suit, in the presence of the Suitors', and annex the Record so made to the back of the Writ, and Retorn and certifie the same under Seal, and the Seals of the four Suitors.

Note, Nothing but the Plaint shall be removed, if they be at Issue.

The Form of the Retorn of the Accedas, vid. Wilk. and Dalton 200.

Vide Greenwood of Courts, and Dalt. c. 60.

And vid. Greenwood of Recordar' fac' Loquelam, and Dalt. 201, 242.

It's a good Retorn, that after the receipt of Retorn. the Writ, and before the retorn thereof, no Court was holden, or that the Lord would not hold the Court, or that the Suitors would not deliver him the Record.

The Form of the Retorn of a Pone in Replevin, vid. Dalt. c. 70.

The Form of a Recordar' fac' Lequelam, Id. c. 72.

The Sheriff must openly read this Writ in Court, and retorn the same under his own Seal, and the Seals of four Suitors, and to summon the Defendant to appear at the Day of the Retorn. Idem.

The Retorn must be, Recordari feci Loquelam, quae est in eodem Comitat' coram Sectatoribus Curiae; (and not, coram me,) Id. ibid.

On this Writ he may retorn Tradè.

The Sheriff may send an Accedas ad Curiam by a Servant, and need not deliver it in person; as Co. Burwell's Case, 3 Keb. 249. Reg. Orig. 96.

Of the Writ of Justicies.

This Writ issues out of Chancery directed to the Sheriff, giving him Power to hold Plea in this Court for Actions of 40 s. or above, in Debt, Detinue, Case, &c. and other Actions personals. It is so called, because its a Commission (and not an Original) to the Sheriff to do a man Right aad Justice; it is Vicountiel, and not Retornable. And tho' it be directed to the Sheriff, yet the Suitors are Judges, and the Writ of Faux Judg­ment Retorn. lies on their Erroneous Judgment; and it requires no Retorn, unless the Action be removed by a Writ of Recordare, and then the Writ must be Retorned, together with the Record, Fitzh. N. B.

The Form is thus in Debt:

REx Vic' Surr', salutem. Praecipimus tibi qd' Justicies A. quod juste & sine dilatione redd' B. 40 s. quos ei debet ut dicitur, sicut rationabiliter monstrare poterit, qd' ei redd' debet ne amplius inde clamorem audiamus pro defectu justitiae, &c.

And several other Forms. Vid. Fitzh. N. B. per­totum.

In a Justicies; the Justicies may be holden of Accompt; so of Admeasurement of Dower, Admeasurement of Pasture, when a Commoner puts in more Cattle than he ought; so of a Writ of Covenant, Dalt. 504.

So Justicies de Curia claudenda, that is, where a man ought to Inclose his Ground against his Neighbour's Ground; so of Debt, for Money, [Page 71] or other Goods, and Detinue: So a Justicies of Nusance; of Trespass; by Justicies of Trespass the Sheriff may hear and determine of the Trespass by an Enquest of Twelve Men, ac­cording to the Order of Common Law: And the Plaintiff may Count to his Damage of 20 l. or more.

But if it be vi & armis, or contra pacem, the Sheriff cannot determe it, therefore that is usually omitted.

The Sheriff may hold Plea of a Bond of 1000 Marks, &c.

Justicies for 40 l. was held and determined before the Undersheriff, in the absence of the Sheriff; and a Writ of Faux Judgment lies, and not a Writ of Error, 2 Leon. p. 34.

Sheriffs Tourn.

The Torun is a Court of Record, holden be­fore the Sheriff, Magn. Chart. c. 17.

Leet is derived out of the Sheriffs Tourn, and The Na­ture of it. after the grant of this derivative Leet, the Sheriff in his Tourn is not to meddle in the reach of this Leet; except in case of Negli­gence of the Leet, and unless it be where the Leet is forfeited into the King's hands.

If one be under no particular Leet, he is within the Sheriffs Tourn.

And 2 Roll. Rep. 74. the Sheriffs Tourn is the supream Leet of the County.

The Style is,

Vic' France-pleg' Dom' Regis tent' apud L. coram Style. Vicecom' in Torno suo, &c. and not Torn' Vic' tent' die apud L.

Or, Cur' visus Franc' Dom' Regis apud B. coram Vicecom' in Torno suo, and not Tornum Vice­comitis Tent', &c. for Tornum est nisi perambulatio.

The Tourn is inciden tot the Office of She­riff, 4 Rep. 33. Mitton's Case.

  • The Jurisdiction in respect of the
    • things Pre­sentable.
    • place where.

What things are Inquirable in the Sheriffs Tourn, and what not.

Nothing shall be Inquired before the Sheriff in the Tourn, but Actions Popular, Common Nusances, Affrays and Blood-shed, 4 H. 6. 10.

Assault made on a man is not Inquirable there, it being but a Tort to a particular person, for which Trespass lies, 4 H. 6. 10.

The stopping of Water; which is a Nusance to the Country People, may be Inquired there; for it is popular: So of a Bridge, 4 H. 6. 10.

They may amerce for Common Nusances; and so may Stewards of Leets, notwithstanding the Stat. of Marlbr. c. 18.

He may Inquire de Assisa panis, and Cervitia non observata, by Stat. Walliae in Magn. Charta 46. Coke.

If he find in his Tourn, that a person hath erected a Purpresture in the King's HIgh-way, he may abate it, 29. Ed. 3. 21. b.

What is Presentable in a Franchise; as de­fault In what cases what is present­able in a Franchise, is present­able in a Tourn, or not. in Repairing a Cawsey is not presentable in the Tourn, because out of his Jurisdiction being in the Franchise: But if the default be in the Lord for not Repairing it, this may be presented in the Tourn; because the Franchise was first derived out of the Tourn, 10 H. 4. 4. 17 Jac. B. R. Loader and Samuell.

Where and what Inquisitions or Presentments taken in the Sheriffs Tourn, shall be presented to the Ju­stices of Peace, and how they shall proceed upon them.

By the Statute of 1 Ed. 4. c. 2. the Presentments shall be by the Sheriff at the next Quarter-Sessi­ons, and there shall be Inrolled; and upon this they assess the Fines and Amerciaments, and shall make Process to levy it to the use of the Sheriff, Jones 300. Griffith and Bedle.

Sheriffs Tourn, when and where to be kept.

By the Statute of 21 Ed. 3. c. 15. the Tourn ought to be kept infra mensem post Festum Paschae, & post Festum Sancti Michaelis, 31 Ed. 3. c. 13.

Who shall be amerced for not coming to the Sheriffs Tourn, or not.

Not a Baron; not Tenants in Ancient Demesn.

I shall cite a Case or two as to Pleading in Actions about Americaments, for further Expli­cation.

Trespass for taking a Bullock. Defendant Justifieth, because at the Sheriffs Tourn, held infra mensem Paschae, ( viz.) 18 Apr. the Plaintiff was presented for not appearing at the said Tourn, being debito modo summonitus, and Amerced by the Jury, which was affeered by four of the Jury at 40 s. And after at the next Sessions of the Peace, ( viz.) 22 Apr. it was cer­tified and ratified by such Justices of the Peace; whereupon the Steward made a Warrant to him to levy it, and so sold it.

The Plaintiff demurrs:

1. Because the Defendant doth not alledge, that the Tourn was kept infra mensom post Festum Paschae; but infra mensem Paschae, which may as well be before Easter as after, 21 Ed. 3. 15.

2. Because the Americament is alledged to be made by the Jury, and affeered by four of the Jurors, where it always ought to beassessed by the Court; for its a Judicial Act, and shall be affeered by the Affeerers appointed, Lib. Intr. 119. Affeer­ment.

3. That the Amerciament was levied by the Defendant, as Bayliff by Warrant from the Steward of the Court, where (by the Statute of 1 Ed. 4) it is appointed, that no Fine or Americament in the Tourn shall be levied, unless it be certified at the next Sessions of the Peace by Indenture, and Enrolled, and by Process made from the Justices to the Sheriff, &c. Griffith and Bedle, Cro. Car. 275.

Judgment for the Plaintiff.

In Trespass, the Defendant Justifies for an Amerciament set in the Sheriffs Tourn, and Exceptions were taken to it:

1. Because he Justified by Praecipe to him law­fully granted, and saith not at what place.

2. He prescribes for a Tourn to be held, and doth not shew any, or what Estate.

And by Hutton, a Prescription for a Tourn, Prescrip­tion by a Que Estate. or an Hundred Court, by a que Estate is naught, because it lies in Grant, and is not manureable; but he ought to have said, That the King, and all they that were seised of the said Hundred have had, and from the time, &c.

And per Cur. Except he shewed before whom the Tourn was held, it was naught; and it ought to be holden before the Sheriff, 1 Brownl. 198. Darney and Hardington.

Oath of Allegiance to be taken every She­riffs Tourn, C. Magna Charta 73, 147, 148.

Hundred Courts.

Vid. suprà tit. Bayliffs.

It is derived out of the County Court, for the Ease of the People, as the Leet was out of the Tourn.

The Style is thus:

Curia E. C. Mil', Hundredi sui de B. in Comitat' B. tent', &c. coram A. B. Seneschallo ibid'.

Vide pluis 4 Inst. 267.

And the Forms of proceedings in this Court.

Vide Wilkinson.

CHAP. VI.

Of the Original Process in Real Actions and Per­sonal Actions, with the Retorns, as Summons, Attachment, &c. Of Mean Process, what Ar­rest by the Sheriff or Bayliff shall be good or not: Of the Bayliffs shewing his Warrant: What Ar­rest is good as to the time of the Arrest, before or after the Retorn, in respect of the persons Arrest­ed, who are priviledged or protected from Ar­rests or not, in regard of Persons or Courts: where Arrest shall be Lawful or not, in respect of the Warrant. Of Warrants to Special Bayliffs or known Bayliffs: of Pledges de Prosequendo.

Of Original Process.

LET it be observed that regularly Writsare directed to the Sheriffs or Coroners, but in special Cases to the Plaintiff himself or to others; to the Party, as a Prohibition, ne exeat Regnum; to others as to Judges Temporal and Ecclesiastical or Civil, to Serjeant at Armes, to Mayor and Bay­liffs; and where the Sheriff is Judge of the Court, a Writ which should have been directed to him, shall be directed to the Serjeants of the Mace, i. e. where there are such Serjeants, Pract. Reg. 345.

The Original Process in Real Actions is a Sum­mons, so in all Personal Actions except in Tres­pass, and in that there is no Summons; but At­tachment and Distress in a Real Action, the Sheriff shall summons the Tenant upon the Land in demand; but in Personal Actions the Sheriff must summons the Defendant by his Person: [Page 77] And in a Praecipe there ought to be two Summo­ners, i. e. two good substantial Neighbours.

If the Tenant be sufficient, he must retorn two common Pledges for the Plaintiff, and then the names of the Summoners thus,

  • Respons' A. B. Vic' Comit' infra scripi' plegij de prosequendo.
    • John Doe.
    • Rich. Roe.
  • Summonitores infra nominati, J. S. the De­fendant.
    • VV. Browne.
    • J. Cook.

But if the Tenant (or Defendant) be in­sufficient, then the Retorn must be thus.

  • Respons' A. B. Vic' Com' infra script' plegij de prosequend'.
    • J. Doe.
    • R. Roe.

Infra nominatus J. S. nihil habet in Balliva mea per quod ( or unde) summoniri potest, nec est invent'. in eadem.

(If it be in any Real Action, or in any Action of Annuity, Debt, Covenant, or other Writ where Summons lieth.)

If in Trespass, it is thus,

Infra nominatus C. D. nihil habet in Balliva mea, per qd' Attachiari possit, nec est invent' in Balliva mea.

If two Defendants, name them; if more, name the two & caeteri Defendantes infra nomi­nati nihil habent.

If upon Distress, then thus,

Infra nominat' A. B. nihil habet in Terris, Tene­mentis & Hereditamentis infra scriptis per quod ipsum distringere possum.

If the Sheriff will delay the execution of the Writ he may return it in two manners.

1. Infra nominat' J. S. non invenit mihi pleg' de prosequendo; for in all si fecerit te secu­rum.

The Sheriff is to take Sureties or Pledges of the Plaintiff, or else he need not execute the Writ.

2. Istud Breve mihi deliberat' fuit, ( or mihi ve­nit) adeo tarde, qd' illud exequi non potui pro­pter Brevitatem temporis.

And the Sheriff may retorn tarde in every Writ, except in an Attachment and in a Capias.

But these Retorns must be true, or else the Sheriff is punishable.

Attachment is by goods and differs from an Arrest which is only of the Body of a Man.

The Form of the Attachment is,

Pone per vadios & salvos plegios B. qd' sit coram, &c. ad respond' A. de placito, &c.

Attachment may be made by Pledges as well as by Goods ( scilioet) by finding Pledges or Sureties to appear. The Pledges shall not be bound in any sum, as Mainpernors are, and they shall be amerced, if he appears not.

Where the Writ is, Pone per vadios & salvos plegios, there if the Sheriff find the Party, he may attach him by hhis Pledges; if he find him not, he may attach him by his Goods. Fitzh. Ret­de Vic. 57.

For Offences against the Crown which touch Life and Member, the Attachment shall be by the Body.

If the Defendant be attached by his Goods, the Retorn must be

J. D. infra nominatus, Attachiatus est per unam patellam pretij 10 d. If od dead things, ad valentiam, &c.

The Form of the Retorn of Distringas, Vide Dalton, 223.

In Debt or Trespass upon the Distringas, the Sheriff retorned but 6 d. Issues, and was amer­ced for it.

Tho' the words of the Distringas be qd' distring' per omnes Terras & Catalla sua in Balliva tua, yet the Sheriff ought to distrain him but reason­ably, and not according to the words of the Writ, Kiel. 117.

Mean Process. What Arrest by the Sheriff or Bailiff shall be good and lawful or not, either as to the manner of Doing, the Time, or in respect of the Warrant or the Persons Arrested.

As to the Manner,

It's commonly said, a known Bayliff need not Shewing the War­rant. shew his Warrant altho' it be demanded, nor a special Bayliff without demand: As to London, in Mackallys Case its said, the Serjeant need not to shew his Mace, because he is sworn and known, altho' not to the Party, 9 Rep. Mackallys Case.

And yet in the Countess of Rutlands Case its held a General Arrest by a Serjeant by shew­ing his Mace and touching his Body with it, by saying Sir I Arrest you, is insufficient, for he ought to shew at whose Suit, out of what Court, for what, and of what Retorn, that the Party may know what to do, 6 Rep. 52.

Where the Sheriff doubting a Rescue, causeth the Serjeant of the Mace to arrest one first on an Action of 100 l. entred in London according to Custom, and after the Sheriff arrests him by Cap' ad Satisfac', this is unlawful, and the Serje­ant was severely punished, and the Court disli­ked such feigned Actions against Law. 6 Rep. 52.

The Sheriff must not dispute the Authority of the Court, tho' the Process be erroneous, Vid. infra, & Dalt. 106, 107.

If the Officer comes to Arrest a man, and he flyeth, the Officer may pursue him and take him in another County, but he cannot beat him, &c. because he was not arrested. If the [Page 81] Arrest of Bayliff he flyeth or draws Weapon, he may.

If a Special Bayliff by force of a Warrant on Arresting J. D. in a Stangers House. a Capias in Process, enters into the House of J. S. the Door being open, and there takes J. D. against whom the Writ is, the Process is well served as to J. D. and all Strangers: And if any Stranger rescue him, he at whose Suit he is ar­rested shall have Action against him. 2 Rolls Abr. 277. Hodges and Marks Case.

A Capias was retornable on All Souls Day, which is non dies Juridicus, which the Sheriff retorned, and so let the Party go, it is a bad Retorn; the Writ was good, and the detaining of the Party on it Lawful, and he was com­manded to bring him into Court. Pop. 205.

As to the Time.

If the Sheriff arrest a man before a Writ to Of Arrest before the Writ deli­vered. him delivered, it is a Trespass; yet in the plead­ing he need not say that the Writ was delivered. It shall be intended that the Bill of Middlesex was delivered to the Sheriff before the Arrest, and before the Warrant made: For the Arrest being after the prosecution of the said Bill of Middlesex, and it being said in the Plea, that the Bill was prosecuted per qd' the Sheriff makes Intend­ment in Pleading. his Warrant, it shall be intended to be delivered to the Sheriff before the Warrnat made: And if it were not so, the Plaintiff ought to have shewed it in his Special Replication; but he ha­ving demurred to it has lost the advantage.

If a Latitat retornable die Lunae prox' post cras' Arrest on the day of Retorn, good. Sanctae Trinit' (which is the 10th of July) comes to the Sheriff to arrest J. S. he may arrest him on the said 10 day of July. 2 Rol. Abr. 378. May and Hoper. So a Capias in Process may [Page 82] be executed the day of the Retorn. So a Ca­pias ad satisfaciend'. But

The Sheriff upon a Capias in Process, may not But not af­ter the day of the Re­torn, and before the quarto die post. arrest the Party after the day of the Retorn and before the quarto die post; as if the Writ be re­tornable Octab' Pur', which is the 9th day of Fe­bruary, and the Sheriff arrests him on the 10th day, the Arrest is ill; for the quarto die post is but a day of grace, and the party may appear before that day if he will. 33 H. 6. Siderfin 229. Ellis and Jackson. And tho' the Sheriff may re­turn His Office quoad ar­resting is determin­ed on the Essoyn day. his Writ after, yet his Office quoad arrest­ing is determined on the Essoyn day, so that Dalton p. 116. is not Law. 1 Keb. 718. mesme Case.

An Arrest in the House, the Door being open at six of the Clock at Night is good enough.

By the late Act of Parliament none can be Ar­rested on Sunday, except for Treason, Felony or breach of Peace.

In respect of the Persons Arrested. As if he Arrest one person for another, and one that ought not to be Arrested on the account of Protection or Priviledge.

The Sheriff had Process against one Adderley, and he took one Adderby; if he were known by one Name or the other, it is good, alit' not. More 407. n. 548.

If the sheriff executes a Capias, and there is He ought at his peril to take no­tice of the Person and Goods, but whether Original be sued out. no Original to warrant it, he is excusable, but he must take notice at his peril of the Person and Goods that he Arrests, for he is not to examine whether the Original be sued out or not: But if he arrest J. S. instead of J. N. he does it without Warrant.

Capias against G. and E. B. affirms himself to be E. and is taken, yet this shall not excuse in false Imprisonment; the same Law of a Commis­sion of Rebellion. Hardress 323. Thurbane Case.

As concerning priviledged or protected Persons, let us see who are priviledged from arrests or not

Here I shall briefly say something of a Non­omittas; of the Office and Authority of the She­riff on it.

Stat. W. 2. c. 39. gives it: For when Bayliffs of Liberties had retorn of Writs, upon a Man­date to them, they would do nothing. Now a Remedy is given by this Stat. commanding the Sheriff qd' non omittat propter aliquam Libertatem, quin exequatur Praeceptum Dom' Regis. 2 Inst. 451. And

If a Bayliff make an insufficient Retorn, a Non omittas shall be granted. 2 Roll. Rep. 336.

Attachment is a Non omittas in it self, ergo the Sheriff may break the House to take the Person. 1 Rep. 18, 33. 5. Rep. 92.

Form of pleading Non omittas, Cap' ad Satisi­faciend', and on Mandavi Ballivo, Retorn, Arrest, and Escape. Vid. 2 Sand. 98.

Pleading Non Omittas, Fieri fac' upon Manda­vi Ballivo retorned. 1 Sand. 304.

Peers of the Realm are Priviledged; so Dut­cllesses Peers. and Countesses by Discent or Marriage, as in the Countess of Rutlands Case, There the Sheriff was excused by the Writ, tho' it appears in that she was a Countess, Coke 6 Rep. for the Officer ought not to dispute the Authority of the Court; But Cap' upon Contempt, as Rescous, &c. lies against a Peer. Dalt. 104.

The Body of a Peer may be taken in Execu­tion upon a Statute, if he had not Goods nor Lands extendible. Dalt. 105.

Ministers in the Church are priviledged from Clergy. Arrest. Artic' Cler' c. 3. 1 R. 2. c. 15. 1 Mariae. c. 3.

Wiltshire, Undersheriff, was imprisoned by the Kings Ser­vant. Lord Chamberlain for arresting Sir George Hast­ings, Servant to the King, upon a Cap' Utlagat'. Litt. Rep. 65. Wiltshires Case.

Per Cur' He may well arrest him, for it is at the Suit of the King himself, and he is sworn to serve it. And by all the Judges of England, he who procured the Commitment of the Under­sheriff ought to pay all the Charges and Ex­pences. And it is adjudged in 1 Keb. 40. The Kings Servant is not so Priviledged from arrests; but that the Sheriff ought to retorn his Writ un­less he shews his priviledge on the Arrest.

The Queen, or Queen Dowagers Servants are not priviledged.

In the King and Moultons Case, the Court decla­red their Opinion to be, That none of the Kings Servants in Ordinary can be arrested without notice first given to my Lord Chamberlain, who cannot priviledge any perpetually, but in conve­nient time must either remove such, or make them pay their debts; but if the Bayliffs, with­out notice, do arrest any such, the Messengers of my Lord Chambelain cannot rescue the Pri­soner by Letter (the Arrest being lawful) nor by Warrant, but the Party is punishable for his contempt, for no man can know the Kings Ser­vant by his Face, but he may shew his Priviledge on the Arrest.

They also conceived the Warrant of my Lord Rescue. Chamberlain to the Messenger to take all persons that detain such Prisoner, is a Rescue and against [Page 85] Law, and is to be only against the Plaintiff that sued, for the Bayliffs had the Kings Warrant to arrest, and had no notice before the Arrest, that he was the Kings Servant. This was Sir George Hamiltons Case one of the Privy Chamber. 2 Keb. 3.

If a Parliament man be arrested on Mean Parliament may. Process, or taken in execution, it's proper for the Parliament when they meet, to discharge him, for in Sir Rich. Temples Case, the Justices doubted whether they could do it or not. Twis­den demanded why he did not sue his. Writ of Priviledge out of Chancery upon the retorn of his Election. Siderfin 42. 2 Keb. 3. Sir R. Temples Case.

Clergy-men called to the Convocation have the same priviledge a Parliament-men have. Dier fo. 60.

By the Court of Chancery one was discharged Chancery Priviledge. from an Arrest, being done as he came to put in his Answer. 1 Rep. in Ch. 92. & p. 22. There is a Chancery-priviledge from Arrest, and privi­ledge in other Courts for Officers and Attor­neys.

As to Protections the 2d Instit. p. 56. upon Protections Stat. is very full. All Protections that are not Legal, which appear not in the Regi­ster, or warranted by our Books, are expresly against the branch of Magna Charta 1 Inst. 131. Nulli differemus justitiam. As a Protection un­der the Great Seal granted to any man, direct­ed to the Sheriff, &c. commanding him that they shall not arrest him during a certain Time, at such a mans Suit, which hath words in it, per Prarogativam quam nolumus esse arguendam. 2 Inst. 56. This Protection was adjudged to be void.

In respect of the Warrant, what is good or not to justifie Arrest: Or where Arrest shall be lawful or justifiable by force of a Warrant or not, and where its good without shewing the VVarrant.

A Warrant made to three conjunctions & divi­sim; this being a Warrant for execution of ju­stice may be sufficiently executed by two. 2 Rol. Rep. 137. VVhite and VV. Usher.

So a Sheriff makes a Warrant to four & cuili­bet eroum, qd' ipsi caperent: Two of the four take him, it's good. Yelv. p. 25. King and Hobbs.

For Warrants of this kind are not to be resem­bled Diversity between Warrants. to Warrants or Authority to make or take Livery.

A Warrant to two men joyntly to Arrest ano­ther, either of them may do it. Cok. Litt. 181. Vide Crok. El. 913. Mesme Case.

The Sheriff upon a Bill of Middlesex makes his Precept to the Bayliff of VVestminster to arrest J. Ferrers Kt. ubi revera he was not Knight but Baronet; this was not a good Warrant, and Warrant false as to Misnomer. the Deputy Bayliff being killed by Sir John's Servant, it was not found murder in the Servant, because his Warrant was not good, and upon the Tryal he was acquitted. Jones p. 346. the King and Ferrers.

The Sheriffs Bayliffs cannot execute a Writ directed to the Sheriff without the Sheriffs War­rant, and if he do he is liable to an Action.

If the Writ comes out of the Kings Bench, then the Warrant must be, Ita qd' habeam Corpus ejus coram Dom' Rege, &c.

If out of the Common Pleas, then it must be Ita qd' habeam Corpus ejus coram Justiciariis Dom' Regis, &c.

VVhere the VVarrant ought to be shewed or not.

If three Writs of Capias in Process at the suit A General Arrest up­on three Special Warrants. of J. S. against J. D. are directed to the Sheriff, and the Sheriff makes three Special Warrants to one Special Bayliff; and he comes to J. D. and arrests him generally, without shewing him in what Action, neither is it demanded of him; but presently upon the Arrest, a Stranger Res­cues him, Action on the Case lies against the Stranger for all the three, for this was an Ar­rest in Law upon all. Tr. 16. Jac. Hodges and Marks.

So if the Writs and Warrants were at the Rescue. suit of three several persons, and the Bayliff ar­rests him generally as before, for this is a good Arrest for all, and all shall have Actions for the Rescue. Id. ibid.

He is not bound to shew his Warrant at first, or to shew at whose Suit it is, before he had peaceably submitted to the Arrest. Cro. Jac. 15. Hodges's Case.

But in the Countess of Rutlands Case it is hol­den, when the Sheriff or other person by his Au­thority arrests another, he ought upon the Ar­rest to shew at whose Suit, out of what Court, for what Cause, and when the Process is retorn­able, to the intent that if it be upon Executi­on, he may pay it, and free his Body, or agree with the Party, or put in Bayl according to the Law, and to know when he should appear. This is meant after a peaceable submission, Cro. Reports, the Case of Hodges and Markes thus, which is a Leading Case in the Point. But when the Party makes resistance or flyeth, be need not make such Declaration.

The Bayliff who had two Warrants against one, at the Suit of J. S. laid his hands on him, and having both the Warrants in his Pocket, he said I arrest, you by force of a Warrant I have, but did not shew it him, nor had it in his hands, nor told him at whose Suit. (This was not a Bayliff conus.)

The Court resolved, 1. This Arrest without shewing the Warrant and telling at whose Suit till the other demanded, is legal.

2. This Arrest without having the Warrant in his hand, and having both Warrants about him, is well enough, tho' he did not shew by which of the Warrants he arrested him. For he being under the Bayliffs Arrest, is in custo­dy there for all Causes, for which the Sheriff had made his Warrant against him, tho' the Sheriff or Bayliff do not mention any speci­ally.

And Rolls C. J. in another Case, took this Special Bayliff. difference; a Special Bayliff is bound to shew his Warrant to the Party whom he is to arrest, otherwise the Party arrested is not tyed to obey him, but he is not bound to shew his Warrant to a Stranger.

But a known Bayliff, i. e. one that is common­ly A known Bayliff. known, is not bound to shew his Warrant to any.

A sworn and known Officer (be he Sheriff, Undersheriff, Bayliff or Serjeant) need not shew his Warrant, yet upon the Arrest the Officer ought to declare the Contents of the Warrant, ut supra.

If Officer arrest a man before he has a War­rant, and afterwards procures a Warrant, yet the first Arrest was unlawful.

So if the Officer do make a Warrant for Sum­mons or Arrest, not having the Original Writ or Process warranting the same, if it appear to the Judges, they shall commit the Offender to the Gaol till he has paid 10 l. to the Party grie­ved, and 20 l. to the King. But a Capias with­out Original, is sufficient Warrant to the She­riff. 43 Eliz. c. 6. 1 Jac. c. 25.

Of Pledges de Prosequendo.

The reason of Pledges in Actions is, 1. Secu­rity The reason of Pledges. for the Kings Fine. 2. For the benefit of the Defendant, if Judgment be given against he Plaintiff. Taking of Pledges is to the intent that the Party Plaintiff, shall prosecute his Suit.

The Sheriff was at election (formerly) whe­ther he would serve the Writ or not if Pledges were not found, but now its held they may be found hanging the Writ: Formerly if the Plain­tiff sued one unjustly, the Judges would amerce the Plaintiff grievously till the Statute of Mode­rata Misericordia was made. 3 Bulst. 277. Dr. Hussy and More.

Now if no Pledges be retorned, it's not aided by Jeofayle. Stat. 18 Eliz. which aids insufficient Retorns, but not no Retorns, and therefore the Person against whom to have Judgment is not retorn­ed, for the Judgment ought to be against the Plaintiff and his Pledges, and so this is no Re­torn. 1 Rol. Rep. 447.

If upon the Original Writ, Pledges be not retorned (because the Writ commands that if Pledges be found, that then, &c. and it is to the Kings disadvantage if Pledges be not found at the loss of his Fine) it's error. But the Sheriff may make Replevin without Pledges finding, and it is at the Sheriffs peril if he doth not take [Page 91] Pledges, Vid, supra tit. Replevin. Cro. Car. 594. Tregoose and Winnele.

In B. C. Pledges must be endorsed on the Ori­ginal, tho' they may be filed at any time after the Retorn thereof. 2 Keb. 299. Hedges Case.

Vide pluris sub titulo Replevin. Vide supra sub ti­tulo sur Summons and Attachment.

Neither the King nor Infant shall find Pledges, King or In­fant not to find Pled­ges. for no Americament shall be upon their default, therefore it were in vain for them to find Pledges. 2 Leon. p. 4.

Scire fac' against the Sheriff for taking insuffi­cient President. Pledges. The Form of the Sheriffs retorn­ing that he had attached the Defendant by Pledges. Hutt. p. 77. Trevor and Michelborn.2 Sand. 333.

CHAP. VII.

Of Bail. of Special Bail. VVho shall take Bail, or not. Of Bail Bonds. Explication of 23 H. 6. c. 10. The design of the Statute. The Form to be observed according to the Statute. VVhat Obli­gations and Conditions are within the Statute, or not. In respect of the Persons and Officers to whom they are made. In respect of the Form; Of the Courts, and of the Sureties. The meaning of the words colore Officii. Of the pleading the Statute of 23 H. 6. And when and how to be pleaded. What Appearance to a Sheriffs Bond is good, or not. Of the Sheriffs Retorn on taking Bail. Of Insufficient Bail. Of refusing Suffi­cient Bail; and the Remedy against the Sheriff for so doing. The Sheriffs pleading this Statute in Actions brought against him. Of Bail Bonds, being discharged or assigned. Of other Bonds, besides Bail Bonds, entred into to the Sheriff; As for being a true Prisoner; Saving harmless from Escapes; For Fees, &c. And the Pleadings there­unto, with all the late Cases and Resolutions relating thereunto.

Of Bail.

BAil is so called, because the Party bailed is delivered by Law into the Custody of those that are his Bail, and who are to answer the party if they do not produce the Principal to do it.

The cause of Marking the Roll for special Special Bail in B. R. on Latitat, and in B. C. on Origi­nal. Bail in the Kings-Bench is, because the Cause of Action does not appear upon the Latitat, by which the party is Arrested, but it is made [Page 92] appear by the Declaration; but in the Common Pleas, where they proceed upon Original, the cause of Action does appear.

Now one that is in Execution in Custody of One in Ex­ecution in Custody of the Mar­shal, not compella­lable to find Bail if another Action be brought against him. Aliter in the Fleet. Who shall take Bail. In London. the Marshal of the Kings-Bench, is not com­pellable to find Bail, if another Action be brought against him; but if he be in the Fleet on Exe­cution, and an Action be brought against him in the Kings-Bench, he must either be Removed and Committed to the Custody of the Marshal, or else he must put in Bail to the Action.

It is the Common Course of London, upon Plaint before the Sheriffs, and a Precept to the Serjeant to Arrest one, the Sureties shall be found and offered to the Sheriffs, not the Serjeants. So in Inferiour Mayor's Courts, Widow and Clark's Case.

Therefore in False Imprisonment the Defen­dant pleads the Custom of London, That on Entry of a Plaint in London, a Serjeant may by Parol, or otherwise, Arrest the Defendant to answer the Plaintiff, and shews, That J. S. entred a Plaint in the Compter against the Plaintiff, and that he was a Serjeant, and Arrested him and carryed him to the Compter till he found suffi­cient Bail. The Defendant confesseth the Cu­stom, the Entry of the Pleint and Arrest, and that he offered Security to the Sheriff; and of this he gave Notice to the Defendant, and yet he carried him to the Compter. The Defen­dant demurrs. Per Cur', The Serjeant, upon tender of Bail to the Sheriff, is not bound to set the party at Large, unless the Sheriff send a Warrant testifying this to him, Joue's Rep. 226. Percivall and Salmon.

If a Capias for the Good Behaviour be dire­cted Capias for the Good Behaviour. to the Sheriff by the Justices of Assize, and upon this the Sheriff makes a Warrant to J. S. to take him, who took him accordingly, and [Page 93] the party tenders J. S. sufficent Bail for his Appearance; and J. S. refuseth it and keeps him in Custody. This makes him not a Tres­passer ab initio; for 'tis not his Office to take Bail, but the Sheriffs, 2 Roll. Abridg. 562. Adam's Case.

Neither the Sheriff, nor any Justice of the Bail for one taken by Cap' Excom'. Peace, cannot Bail one taken by a Writ of Cap' Excommunicat'. But he is Bailable by the Kings-Bench, 1 Bulstr. 122. Hall and King.

Capias must be taken out, and sealed and delivered to the Sheriff against the Bail, be­fore he can be taken by a Testatum in another Testatum. County and because in Robinson's Case it was never deliverd to the Sheriff, but all Retorned in one Term, the Execution was set aside, 2 Keb. 424. Robinson's Case.

The Scire facias against the Bail, usually is left Scire fac' against the Bail. Retorn. four days with the Sheriff before the Retorn of it; but if it be not it is well enough, 2 Keb. 229. Barle and Potter.

Judgment in a Scire facias against Manucap­tors, Retorn of Scire fac' against the Manucap­tors. the Bail is liable by the Judgment; and if they be Freeholders in the same County where the Recognizance is made, then they must have notice and time; because the Scire facias may be Retorned: But if they be Strangers, the She­riff is not bound to warn them or give notice, Notice. but Retorn Nihil on both together; for this is but of favour to the Bail, who at their peril ought to bring in the Principal.

In Action brought against the Baron and Where the Husband must put in Special Bail for his Wife, or not. Feme, and the Husband is only Arrested, yet the Husband must put in Bail for his Wife, if the Name of the Wife be in the Writ, else he is not bound to put in Bail for her; for it is the Writ that warrants the Bail, Pract. Reg. 43.

Yet in 1 Keb. 241. the Husband is not bound to put in Special Bail for his Wife, if she be not Arrested; but he must appear for himself and his Wife, and must find Special Bail for himself, 1 Keb. 241. Nevill and Cage.

Note, Where Bail is put in De bene esse (as in a Judges Chamber) the Plaintiff cannot Sue the Sheriffs Bond till it be refused or set aside; but he ought to except against it in the Judges Chamber, 2 Keb. 478.

But I think he may except against it after, within a certain time. According to an Old Rule, it was within 20 days.

Of Bail Bonds. The Explication of the Statute of 23 H. 6.

This Statute is frequently pleaded in our Books, and many Cases about the Nature of this Statute; and the Retorns and Pleadings there­upon we meet with, which if methodically digested, would be the better and more clearly explained.

Let us see how the Law was at Common Law, and before the making of this Statute.

At Common Law, if the Sheriff had taken any man by the Kings Writ, he must not be Breve de homine Repleg'. delivered but by Breve de homine replegiando, and he was not compellable to take Bail of any, 2 Sand. 60.

But this Statute compels him to take Bail, and the design of the Statute is, to provide against the Extortion of Sheriffs, who would not deliver them without great sums, Cro. El. 808. Sir George Clifton.

Now the Statute prescribes the Form, and that Design of this Stat'. the Sheriff under colour of his Office should not oppress the party to make him any other Obli­gation, for the Statute makes the Obligation void for not pursuing the Form; but not in the Matter thereof. This Statute was made for the Prisoners benefit; for the mischief before was, That the Sheriff not being compellable to bail him, would extort Money to bail him, Mod. Rep. 228.

Now this Statute hath Three Branches, as it is in Dive and Manningham's Case, Plowden.

1. Commandment and Authority to the She­riff, to let to Bail' such persons as are Mainper­nable: So it extends to Coroners, Stewards of Franchises, Bayliffs, Keepers of Prisons, &c.

2. A Restraining branch, That they shall not let to Bail such persons as be in their Ward by Condemnation, Execution, Capias Utlagat', or Excommunication, Surety of the Peace, and such as shall be Committed by special Com­mandment of the Justices, nor Vagabonds.

3. The third is, to make Obligations void, taken in any other form than the Statute limits; That no Sheriff, nor any of his Officers and Ministers aforesaid, shall take or cause to be taken, or make any Obligation for any Cause aforesaid, or by colour of their Office, but only to themselves, of any person, nor by any person which shall be in their Ward, by the Course of the Law; but by the Name of their Office, and upon Condition written, That the said Prisoners shall appear at the Day contained in the said Writ, Bill, or Warrant, and in such places as the said Bill, &c. shall require: And any other Obli­gation taken by them in any other form, shall be void.

Now there are Three Forms to be ob­served:

1. That is shall be made to the Sheriff him­self.

2. Note these words (For any other Cause) refer to all that went before, as well those contained in the Exception, as in the First branch. There­fore a Bond taken of a man in Execution is void by this Statute, and the Surety may plead, this was taken by him in Execution as Sheriff, and and the words colore Officii make it void; for he he lets him to Bail who is not Mainpernable, Plowd. 69, 80. Dive and Manningham.

3. Note also ( Nor any of his Officers) it is not The Stat' mistaken in print. so, and the printed Statute is mistaken. It is not the Sheriff, nor any de ses Officers, (or any of his Officers) but not any des Officers; not ejus Officiarii, but alii Officiarii. And so is Old Rastal which is in French, and so Adjudged in Langham's Case.

In Debt on Bond to Lenthal, the Defendant pleaded it was for Ease; it was held to extend to the Marshal, tho' he is not one de ses Officers but one des Officers and Ministers of Justice, 3 Keb. 71. Monday and Frogate.

And if the Statute be mis-recited it may be demurred to, as it was in this very Case, Cro. El. 108. Teussell and Acton.

In this Statute are Three Forms to be ob­served:

1. That it shall be made to the Sheriff him­self. Vide infra.

2. That it shall be made to him by the Name of his Officer.

3. That it shall be only for Appearance at the day and place, Cro. El. 862. Cotton and Vale, 2 And. 173. mesme Case.

But as to the Insufficiency of the Sureties, that is Matter and not Form, and the Obligation is not void. Vide infra.

The Statute prescribes the Form, and that the Sheriff under Colour of his Office should not He must pursue the Form, not the Matter. oppress the party to make him any other man­ner of Obligation; for the Statute makes the Obligation void for not pursuing the Form, but not in the Matter thereof: Therefore the sheriff may take one Surety, or one that has no Land in the County, Cro. El. 808. Sir Geo. Clifton's Case, Mod. Rep. 32. Franklyn's Case.

Per Hobart, ex Relatione Twisden: Because the Statute would make sure work, and not leave it to Expositions what Bond should be taken: There­fore it was added, That Bonds taken in any other form should be void.

What Obligations and Conditions are good, or not.

1. In respect of the Persons and Officers to whom they are made.

2. In respect of the Form.

1. In respect of the Officers or Persons to whom made.

Such Bond given to a Deputy of a Bayliff of To a Deputy of a Bayliff of a Fran­chise. Serjeant at Arms. a Franchise is void, or to an Under-sheriffs Deputy; it must be to the Bayliff or Sheriff himself, Noy p. 69. Tavernor's Case.

A Serjeant at Arms, attending on the Presi­dent and Council of the Marches of Wales, is not an Officer within this Stat. Cro. Car. 9. Johns and Stratford.

If the Bayliff of an Hundred, which is a Bayliff of an Hnu­dred. Franchise, take Bond, he must do it in the She­riffs Name, 3 Keb. 21, 117, 127. Monday and Fro­gate.

This Bond must be taken to the Sheriff him­self, and not to another, Dyer 119. 10 Rep. 100. 7 Ed. 4. 5. Plowd. Com. 68. a. b.

A Serjeant at Arms in VVales is not within Serjeant at Arms in Wales the Stat. Stiles 234. Barton's Case.

The House of Commons had Voted one VV. guilty of High Treason, and the Plaintiff being a Serjeant at Arms took the said VV. into Cu­stody; and the Defendant entred into Bond to the Plaintiff, Conditioned for the said VV's Appearance, who did not appear. Debt was brought, and on demurrer. Per Cur', It's a void Bond by the Common Law, being entred into for ease and favour of the Prisoner, and he was not bailable. But the Court agreed the Plaintiff was not an Officer within 23 H. 6. c. 10. Obj. The Condition recites the Bond was entred into for Appearance only, is an Estoppel to say it was for other Cause. Per Cur', Here is no Estoppel; for Estoppel is when the Bond is a good Bond, then the Recital is an Estoppel; but when the Bond is void, the Estoppel is void too, Hardress p. 464. Norfolk's Case.

A Serjeant to the House of Commons is not Serjeant to the House of Com­mons. within this Statute, 1 Keb. 391. Norfolk and Ayl­mer.

This Statute doth not extend to Bond made to the Plaintiff himself, Allen p. 58. Leech and Davis.

The Bond not being taken by the Sheriff in Not taken by the Sheriff in the name of his Office. the Name of his Office, in Debt upon the Bond, the Defendant demurrs upon Oyer.

Sed non allocatur; for the Statute is not pleaded, Pleading the Stat'. and it may be for a just Debt, 2 Keb. 620. Jacques's Case.

Marshal of the Kings-Bench is within this Marshal of the Kings-Bench. Statute, and if he takes Bond against this Statute 'tis void, Cro. El. 66. Bracebridge and Vaughan, 9 Co. 98.

A Bond to Neele, Sheriff of Warwick, and the Bond was to Neele Vic' Com' praed', and Warwick put in the Margent. Per Dodderidge, This is not a good Bond; he ought to be named Sheriff, and of what County, 2 Rolls Rep. 360. Neele and Cooper.

As to Appearance, where the Condition is good, or not.

An Obligation to the Sheriff, to Appear and Answer, &c. is void by the Statute of 23 H. 6. Aliter to Appear to Answer; for the party by the Law may Appear, yet Judgment may be given by default, Noy 53, 54. Lord Ever's Case, Dyer 274. contra 172. Rowles and How.

Condition to make an Appearance, quaere if good.

Obligation was taken by the Sheriff for an Appear­ance, where the Term is adjourn­ed. Appearance at Westminster, and the Term ws Adjourned to St. Albans, and the party appeared there; he had not forfeited the Obligation, quaere. Mo. n. 578. Corbet and Downing.

That Obligation shall alway relate to the day and place comprized, and he ought to appear at the Kings-Bench, or else he forfeits his Bond, Mo. 466.

The Condition was, If the said J. D. per­sonally appeared, &c. â die Paschae in 15 dies, to Answer to J. H. as shall appertain, and farther to do and receive as the Court therein shall [Page 100] consider in that behalf, that then, &c. it's a void Bond, Cro. El. 672. Scriven and Dyther.

If the Sheriff take an Obligation for the Ap­pearance Bond for appearance before Pro­cess comes to the Sheriff. of J. S. before Process comes to him to Arrest J. S. and after the Process comes, this Obligation is good, Siderfin p. 151.

Bail Bond was to appear at Westminister die Sabbati prox' post Purificat'. to Answer; its ill, it was intended the Feast day, 3 Keb. 260. Rodd and Huans.

Bill of Middlesex was Retornable die Veneris, Mistake of the Day. the Condition of the Bail Bond was, If the Defendant appeared die Sabbati, it is a void Bond, 1 Sand. 21, 22. Bennet and Filkins.

Condition to Appear and Answer is good To appear and an­swer. enough, 2 Cro. 286. tho' Mildmay and Cage his Case was Objected, being intended generally to answer any Action, and the Writ was of Trespas, 3 Keb. 422. Briscoe and Richardson.

Thc Condition of the Bond was, That if the Insenfible. Defendant do appear in Banco Regis such a day, then the Condition of the Obligation to be void; yet per Cur' both are good: For if these words were omitted, it is but Surplusage, Siderfin 456. Maleverer and Hawkins, 2 Keb. 615. mesme Case, Mod. Rep. 35. mesme Case.

To a Condition to appear before his Majesties To appear at Westm. Justices of Kings-Bench at Westminster. The De­fendant pleads the Statute of 23 H. 8. and that this was alia forma; it should be coram Dom' Rege ubicunque, &c. yet it ws adjudged good. The Statute is not to be avoided by such mistakes of Retorns, 3 Keb. 551, 611, 627.

So in Cadwell and Dawkin's Case the Condi­tion was, Ad respond' E. exec' in plac' Trans. de 100 l. and the Writ was, Ad respond' E. in pla­cito Tresp' ac etiam billae 100 l. de debito, &c. this variance is not material, if the Bond be made [Page 101] in the name of his Office, and the Condition express the time and place of his Appearance, and at whose Suit, its enough, Cro. Jac. 286. Villars and Hastings, Sir Tho. Jones 137. Cudwell und Dawkin's Case, so Kerby and Curtis.

The Condition is, If such an one who is To appear personally. arrested on a Latitat, appeared personally and answered, &c. in regard his appearance is neces­sary to put in special Bail, if the party require it, the Bond is good, Cro. El. 776. Bowles and Hersteo, Dalt. 446. 10 Rep. 100.

A Writ out of the Kings-Bench was Return­able Appear­ance on a Writ Re­tornable out of Term. out of Term, the Sheriff takes the party and takes Bond to appear at the day of the Retorn, and for Non-appearance brought Debt on this Obligation: This Bond was void by the Statute, and the Sheriff shall not be amerced for Non-appearance, nor liable to any False Impri­sonment by the party, 2 Siderfin 129. Jenkins and Hatton.

The Writ is placito Trans. the Condition of To answer, Trans. ac etiam billae the Bond is to answer Ac etiam billae 100 l. in placito debiti is void, being another Writ; but if the Writ were in placito debiti, or the Bond taken only to answer the Writ in placito Trans. it were well enough. And a Nil capiat per Billam was awarded on Demurrer by the Plaintiff upon the Defendants Plea upon the Statute, it being in alia forma, 3 Keb. 164. Mildmay and Cage, and p. 711. Moor and Finch.

Ad respond' de platito debiti is good without Ad Respon­dend' de placito de­biti, with­out men­tioning the Sum. mentioning the Sum. The Bond ought to be made to the Sheriff by the name of his Office, and ought to express the day and place of his Appearance, and these Circumstances being observed, tho' it be variant in other Circumstances, its not ma­terial, Cro. Mich. 9 Jac. 286. Villers and Ha­stings.

The Sheriff cannot take Bond to appear at another day than is contained in the Writ, 2 Keb. 526.

If an Obligation be taken by the Sheriff after Bond ta­ken by the Sheriff after the day of the Retorn void, and why. the day of the Retorn, its void by the Statute, and is not a single Obligation; and the Statute was made to prevent such great Oppressions, for the party so taken after the Retorn, may not be bailed without coming before a Judge; and he may not do this out of Term without the Con­sent of the other party, Siderfin 301. Courtney and Phelps

L. gives Bond to the Sheriff, being arrested On At­tachment out of Chancery. by Attachment out of the Chancery. The Con­dition was, That the Defendant should appear such a day in Chancery, apud Westm' ubicunque fuerit. This Bond is within the Statute; but here the Variance makes it void, Ubicunque fuerit, 2 Keb 526. Levezer and Redshaw, Stiles 234. Bur­ton and Low, 3 Keb. 599, 614. Kirby's Case.

As to Courts.

The Sheriff, by virtue of an Attachment under the Privy-Seal of the Court of Requests, took the Defendant, and for his Enlargement made the Obligation to appear before the Kings Counsel, &c. Per. Cur', Here is no Warrant to take the Body, or the Obligation; for that Court hath not any power by Commission, Statute, or Common Law.

But the Sheriff ought to obey the Process out of the Dutchy Court, for that is appointed by Dutchy-Court. Act of Parliament, but the other is not within the Statute, for the Statute speaks of such who are in their Custody by course of Law. So this Obligation is avoidable by Duress, Cro. El. 646. Stephens and Fludd, 2 Anderson 122. mesme Case.

Plaint in a Court-Baron of 39 s. and an Court Baron. Attachment against the Defendants Goods, and detained till the Plaintiff caused a 40 l. Bond to be made to the Plaintiff himself to appear and answer, and Condemnation by a day, and pleaded the Statute of 27 H. 6. This Bond is void at Common Law.

Its void also for Extortion, because of the Extortion. unreasonable sum, &c. and the Statute doth not extend to such a Bond, 1 Keb. 872, 873. Randall and Keite.

The Condition was to appear before the Ju­stices Not ac­cording to the Style of the Court. de B. R. at Westminster, and saith not ad placita coram Nobis tenenda ubicunque, &c. the Va­riance is not material, and by common Intend­ment it is the same Court, Sir Tho. Jones 46. Kirby and Curwin.

As to Sureties.

The Statute saith, That he shall take Obliga­tion Sureties. with sufficient Sureties; but this is for the benefit of the Sheriff, that is, for his Indemnity, that if he be amerced for Non-appearance of the party, he shall have his remedy; for he may take what Sureties he thinks fitting, Mo. 636. Cotton and Vale.

Therefore if the Sheriff take Obligation for Bond not void for insufficien­cy of Sure­ties. Appearance, its not void per Stat. 23 H. 6. for insufficiency of the Sureties; or that the Surety had no Land; for the Sheriff may take one Surety or two, 2 Anders. 157.

The Sheriff is Judge of the Sufficiency, and its no plea to say, he took Bonds of Insvfficient persons, Mo. Rep. 118. Cotton and Vale.

The party that gives the Bond must be in the Ward of the Sheriff. So is Beaufage's Case, vid. 10 Rep. 99. b. Winch. p. 20, 50. Empson and Bathurst.

So, Condition to Appear; the Defendant on The Bond must be taken of the person who is in Lawful Custody. Oyer pleads the Statute of 23 H. 6. that the Plaintiff (Bayliff of St Edmondsbury) Imprisoned the Defendant without Warrant, and thereon took the Bond. Per Cur', Its an ill Plea; for the Bond must be taken of the person in Custody, i. e. Lawful Custody; and this Bond is voidable by Duress at Common Law, 3 Keb. 756, 760. Lord Suffolk and Birket, Sir Thomas Jones 76. mesme Case.

The Sheriff upon a Fieri fac' took Bond of the Defendant to pay the Money in Court at the Retorn of the Writ; this is good, and not void by Stat. 23 H. 6. Vid. Dalton 443. 10 Rep. 99. Beaufage's Case.

Colore Officii.

Colore Officii is taken in malam partem. No What it is, and to what it extends, or not. Sheriff shall take Obligation contrary to the Statute Colore Officii. As one in Execution escapes and is retaken, and then a Bond is made for his Enlargement, this is Colore Officii. But if a Sheriff take a Bond for a true Debt; this is good, because its not Colore Officii, 2 Leon. 118. Philips and Stone.

Debt on Obligation taken by the Plaintiff Sheriff, of the Defendant his Clerk, upon Con­dition to pay the King's silver into the Exchequer within fourteen days after he received it. The Defendant pleads Stat. 23 H. 6. and averred it was taken Colore Officii. And upon Demurrer it was adjudged for the Plaintiff; for the Statute doth not intend such Obligation taken of them which are not to appear, nor in Custody. The Plea that the Bond is taken Colore Officii, will not avoid a Bond taken of the party, to do what he [Page 105] ought, Mo. n. 685. Cartwright and Dalesworth, 3 Keb. 790.

A Bond for Tuition of a Child as Curator, Curator. Tutor. and to give Account to the Ordinary, is but a voluntary undertaking of the Guardian, and so not within the Stat. 23 H. 6. and its good at Common Law, notwithstanding 3 Inst. 149. 3 Keb. 671.

Note, If the one part of the Condition be The whole Bond is void, if against this Statute in any point. according to the Statute, and the other not, all shall be void; for the Statute extends to the whole Bond, Dive and Manningham Pl. 68. b. Palmer Rep. 378. Noel and Cooper.

If the Sheriff take Bond for a Point against this Law, and also for a due Debt, the whole Bond is void, Hob. p. 14.

Note, The Warden of the Fleet, and the Kings Palace at Westminster, are excepted out of this Act.

Of Pleadings.

Regula, This is a particular private Law, and ought to be pleaded.

Regulâ. Condition was, That J. S. appeared in B. R. &c. The Defendant demands Oyer, and so de­murred; because it is not taken by the Sheriff in the name of his Office. Sed non allocatur; the Statute being not pleaded, (as Whelpdale's Case) No Exception can be taken against it, for it may be a just Debt, 1 Sand. 155. Dive and Manning­ham's Case, Parker and Wells, Siderfin 24. Allen and Robinson, Hob. 13. contr. 3 Keb. 320, 361. Oakes and Ceel.

A Condition to appear in B. R. according to Custom, at the suit of M. On Oyer the Defen­dant pleads there is no such Custom in B. R. ad the Plaintiff hath alledged, to appear to an etiam billae, and so the Obligation void. The At etiam Billae. Plaintiff demurrs, and Judgment pro Querente; because the Statute of 23 H. 6. is not pleaded, being a particular Law. But it might be pleaded, the Bond was by Duress, being in another man­ner Duress. than the Statute allows; and that Statute makes the Bond void for the whole, 2 Keb. 620. 3 Keb. 60, 181. Forth and Walker.

If the Statute be misrecited, it may be Demur­red to, Siderfin 356. Holbay and Bray, 2 Keb. 278. Pench and Woodnoth,

Quare, How the Court will take notice of it, by the printed Book or by the Record, or other­wise?

Regula, To plead an Appearance, and not to say, Prout patet per Recordum, is naught.

Regulâ. So Corbet's Case; On the Sheriffs Bond it must be averred a Record in the Rejoynder as well as in the Bar, 1 Brownl. 91. Andrews and Robins, Cro. El. 466. Corbet's Case, 2 Keb. 250, 278. Knight and Pitt.

Condition was, If he appeared at Westminster such a day, to answer, &c. The Defendant pleads, that before the Day of the Retorn of the Writ the Term was adjourned to Hartford, and that there he appeared. The Plaintiff de­murs. Per Cur', He ought to conclude his Plea, prout patet per Recordum; for tho' he appeareth, yet if his Appearance be not entred of Record, he forfeits his Obligation, and he ought to Con­clude his Plea so, otherwise the Plaintiff cannot answer thereunto as to say Nultiel Record, Cro. El. 466. Corbet and Cooke.

Debt upon a Sheriffs Bond for Appearance in B. R. the Defendant pleads comparuit ad diem; the Plaintiff denies it, and by Mittimus out of the Chancery it was brought into the Common Pleas, and Judgment there given, Palmer and Steward cited Cro. Car. 297. in Lutterel and Leas's Case.

Tho' the Bond is made void by Act of Parlia­ment, Non est factum not to, be pleaded. yet the party may not plead Non est fa­ctum, but must plead the Special Matter, and take advantage of the Act of Parliament, 5 Rep. 117. Whelpdale's Case.

In Debt upon Bond, the Defendant pleads the Traverse, That he was in Pri­son tempore confectio­nis, not good. Statute of 23 H. 6. and shews that W. was in Execution, and that the Bond was made for his Deliverance against the Statute. The Plaintiff Replies, That tempore confectionis of the said Bond W. was at Large; absque hoc that he was in Prison tempore confectionis, &c. the Traverse is not good: For one may be in Prison, and make a promise to make a Bond, for which he is En­larged, and within an Hour after he makes the Bond, the same is within the Statute; it ought to have been absque hoc, that it was made pro deli­beratione, 2 Leon. 107. Bowes and Vernon, 2 Keb. 512. Die and Adams.

Debt on Bond, dated 25 Sept. the Defendant Plead primo deliberat' after the Arrest. pleads a Capias ad satisfaciend' was awarded against B. who was taken on it the 30th of Sept. and that the Obligation was made for the Enlargement of B. The Plaintiff demurs, and had Judgment; because it appears the Bond was made before the Arrest, and so could not be avoided by 23 H. 6. but he ought to have pleaded it with a primo deliberat' after the Arrest, Noy 23. Collins and Phillips.

To Debt on Bail Bond to Appear, the Defen­dant Plea, That before the day of Appear­ance he was taken by a Cap' Utlagat'. pleads before the day he was taken by Capias Utlagat', and detained till after the day, and so could not appear. The Plaintiff demur­red, and it was Adjudged to be an ill Plea; for the party may remove himself by Habeas corpus, and if this should be good, all Bail Bonds may be thus avoided, and the Plaintiff doth but his Duty, 2 Keb. 262. Jeffreys and Cooper, Siderfin 406. id. Case.

In Debt, the Defendant pleaded the Statute of 23 H. 6. and that was for ease and favour, and not for a just Debt. The Plaintiff Replies, It was for a just Debt, absque hoc that it was for ease and favour. To which the Defendant Re­joyns Rejoynder. specially, and the Rejoynder was set aside in the Vacation by Judge Rainsford; and the Plaintiff entred Judgment for not joyning on the Issue tendred by the Plaintiff: And per Cur' the Judgment was affirmed, 2 Keb. 554. Berry and Bishop.

Regula, For when an Issue and Rule is given, the other party must joyn, and cannot depart to any new matter.

Regula. A Sheriff brought Debt on a Bond, dated the 13 th of Jun. the Defendant demands Oyer on Traverse. Time of the deli­very of the Bond. the Condition, which was, That if he appear Veneris prox' post tres Trin', and pleads, That Veneris prox' post Trin. was 14 Junii, and that he was Imprisoned by the Plaintiff till the 19 th of June, and that the Obligation supra fuit primo deliberat' by the Defendant the 19 th of June; absque hoc, that this was delivered as his Deed before the 19 th day of June, Siderfin p. 300. Courtney and Phelps, 2 Keb. p. 108, 109, 122. mesme Case.

Per Cur', This is not a good Traverse; it ought to have been, absque hoc that it was delivered as his Deed before die Veneris prox' post tres Trin'. For if the Traverse suprà be allowed, the Plaintiff shall be excluded from answering to the Time alledged of the Retorn, altho' it be false.

The Defendant pleads Stat. 23 H. 6. and that Traverse. Time of the Retorn. he was in Custody by warrant of a Writ Re­torned Veneris post Octab. Purificat'. The Plaintiff Replied, The Defendant was taken by a War­rant on a Writ Retorned Sabbat' post Octab' Purific', and not by any Writ Retorned Vene­ris, &c. The Defendant Rejoyned, That he was in Custody by virtue of a Writ Retorned Veneris post Octab' Purific', absque hoc that he was taken by any Writ Retorned Sabbat' post Octab'. The Plaintiff demurrs. Per Cur', This is no Traverse upon a Traverse; and there would be no Traverse in the Replication, which would make an end; but in the Rejoynder it doth, 2 Keb. 94, 105. Bennet and Philkins, 1 Sand. p. 20. mesme Case, 3 Keb. 656. Gold and Cutler, 191. Sturges.

Debt on Bond; the Writ was, Ad respondend' H. G. nuper Vic' Norf. and the Count was, Qd' concessit se teneri praefat' J. H. in praedict' 40 l. and saith not, Tune Vic' Norfolc' existen'. And per Cur', Sur Demurr' upon the Bar it was Ajudged, que Count fuit insufficient, Cro. El. 800. Guyben and Whichstcomb, 3 Keb. 191. Twisleton and Dun­ken.

J. S. puts himself in a Special Bayliff, and Special Bayliff takes Bond. It is by Duress. Arrests J. D. and takes Bond, &c. This is by Duress, and the Defendant may plead that; yet its not within the Statute, nor aided by it. For J. D. was never in the sheriffs Custody after the Arrest, and the Bond was taken out of the County where he was Arrested, and so by [Page 110] Duress, Cro. El. 746. Brown and Adams, 3 Keb. 756, 760. Earl of Bristol and Lord Burkin.

The Defendant pleads to the Sheriffs Bond, After the Writ pur­chased, and before the delivery of it to the Sheriff, he may take Secu­rity. that there was no Writ ever delivered to the Sheriff, and so would avoid it by Stat. 23 H. 6. The Sheriff after the Writ sent out, but before the Delivery, takes Security: Which per Cur', he may, if the Defendant will give it, 1 Keb. 554. Bromfield and Penhay.

What Appearance to a Sheriffs Bond is good, &c.

If Appearance be the same Term, it is good. Appear­ance after the Day is good. The Defendant pleads to a Sheriffs Bonds, taken for his Appearance in B. R. die sabbat' prox' post Octab' Sancti Martini, and that he ap­peared at the day: And the Court of Common-Pleas gave him a Day to bring the Record of his Appearance by Mittimus out of the Chancery. And the Record was certified, that he appeared Lunae prox' post Quindena Martini, which was after the Day, and adjudged good, 1 Brownl. 58. Statifield and Grony, Idem 74. Carter and Free­man.

So in Daly and Fryar's Case: The parties Ap­peared two days after the Day in the Condition, is good, and shall be a discharge of the Bond; for the whole Term is but one day in Law. so it is in the Common Pleas, and in the Kings-Bench, 2 Bulstr. 255. Daly and Fryar.

A Debtor having given Bond to the sheriff Defendant ought to Appear notwith­standing a Supersedeas to Appear, tho' a Supersedeas comes to the Sheriff before the day of Appearance; yet he shall appear to take his Bond.

A Sheriff sues his Bail Bond for Non­appearance: Plea of Comperuit ad diem, how Issue to be joyn­ed, and on whose part the Proof lies. The Defendant pleads Comperuit ad diem. The Plaintiff Replies, Nul tiel Record comparentiae. The Defendant Rejoyns, Quod habeatur tale Recordum. Now the Proof lies on the Defendants part, to produce the Record in Court.

A Condition to Appear in B. R. where the Process is Retornable, &c. The Defendant said in facto that he had appeared secundum formam, &c. Et hoc petit Repleader was awarded; for it must be tryed by the Record.

A. is bound to Appear such a day, &c. and A. How the party may: Enter his appearance. No Process is Retorned. at the said Day goes to the Court; but there no Process is Retorned. Then the party may go to one of the Chief Clerks of the Court, and pray him to take a Note of his Appearance. Vide the Form of the Entry in such case, 1 Leon. p. 90. Brett and Shepard.

If the other party plead Nul tiel Record, it behoveth that the Defendant hath the Record ready at his peril: For the Court of Common Pleas cannot Write to the Justices of the Kings-Bench, to certifie a Record thither.

Of the Sheriffs Retorn upon taking Bail, and of his taking Insufficient Bail; or his refusing sufficient Bail, and the Remedy: And his pleading in an Action brought against him.

Note, After the Statute of 23 H. 6. the Sheriff cannot make a Special Retorn in a Capias; but only a Cepi Corpus or Non est inventus: And the Statute, tho' it compells him to take Bail, yet it does not alter the Retorn. The design of the Statute is to provide against the Extortion of Sheriffs, being obliged to Retorn Cepi & paratum habeo, and yet to lett the Defendant at large; [Page 112] and therefore there is no reason he should be Charged for not having the Body at the Day.

The Retorn of a Paratum habeo, is in effect no more than that he hath the Body ready to bring into Court, when the Court shall Com­mand him.

And for his False Retorn of Paratum habeo, he is amerceable to the Court till he do bring in the Body, (and the Common Practice is so); but that is nothing to the party, and no Action lies against him by the party. And therefore vide Page and Tulses's Case.

Now, as to the sheriffs taking Insufficient bail, and refusing to take Sufficient bail, the Law stands thus:

If the Sheriff refuse to take Reasonable Bail, an Action on the Case lies against him, Siderfin p. 23.

If the Sheriff refuse to take Bail, he is liable to an Action of False Imprisonment.

If the Sheriff take Insufficient Bail, yet no Action lies against him by the party; for he is Judge of the Bail. Vide supra. Therefore,

In Action on the Case against the Sheriff for Escape. the Defendant pleads the Statute of 23 H. 6. that he Lett H. to Bail, and took Rea­sonable Sureties A. and B. persons having suffici­ent within the County. The Plaintiff Replies, Absque hoc, that he took Bail, having sufficient within the County. The Defendant Demurrs, and Judgment pro Defendente, Mod. Rep. 227. Ellis and Yarborough.

Where Trespass on the Case was brought Sheriff pleads Stat. 13 H. 6. against the Sheriffs of Middlesex for suffering an Escape and Retorning Cepi corpus, and Paratum [Page 113] habeo (which was false.) The Defendants plead, That the party Arrested put in J. B. and J. C. Sureties, and plead the Statute of 23 H. 6. and they took Bond according to the Statute, and so let him Escape. Per Cur', The Plea is good, for the Reasons aforesaid. So in Bowles and Lassell's Case, if the Sheriff Retorn a Languidus in Pri­sona, having taken Bail secundum Stat'; it was adjudged, that tho' the Defendant was at Large, yet no Action lay against the Sheriff. All this must be understood of Mean process); for else this would be to frustrate the Statute of 23 H. 6. Cro. El. 852. Bowles and Lassels.

But Note, Then it must appear to the Court on the Record, that it is on the Statute of 23 H. 6. and not a Retorn at Common Law: Not Guilty. And the Sheriff may in such case plead Not guilty, Siderfin 22. Allen and Robinson.

But if the Sheriff demurrs to the Declaration, If the She­riff demurr, al' Narr', the Action is against him. then the Action is against him. For the Decla­ration shall be taken to be true upon the Demurrer. For the Statute is private, and the Court will not take notice of it unless it be pleaded. But if the Defendant had pleaded this specially, or if he had pleaded Non culp', he might have had advantage of the Statute, and oufted the Plain­tiff of his Action, Cro. El. 624. Barton and Ald­worth, Siderf. Parker and Welby, Mod. Rep. 244. 244. Page and Tulse, p. 33. Franklyn and Andrews, Mo. n. 427. Cro. El. 460. Gardner and Lang­ton.

By these Words in the Statute, That if the Sheriff Retorn a Cepi Corpus, he shall be charge­able to have the Body at the Day of the Retorn, &c. it is intended only that he may be Amerced to the King for not having the Body at the Day, 2 Sand. 60. Postern and Hanson.

An Action on the Case against the sheriff for not taking Reasonable Sureties, not having suffi­cient Estates in the said County, and Retorning Cepi corpus, and yet not having the Bodies ready by the day, lies not; forhe is compellable to lett to Bail, and if he have not the Body he shall be amerced; And because he shall be amerced, the Statute gives him Advice to take sufficient Sureties, for his own Indempnity, 2 Sand. 59. Postern and Hanson.

In Action on the Case for taking Insufficient Sheriff pleads, He had taken sufficient Bail, he need not say where, nor Tra­verse the Intent. bail: The Defendant pleads, he had taken suffi­cient Security. He need not say where, nor need he traverse the Intent, to deceive the Plaintiff of his Debt: For it is not issuable at what place the Security was taken, and therefore need not be shewed; and the Intent is not Traversable; and had the Defendant pleaded so it had been ill, Siderfin 96. Bentley and Hore.

Action on the Case against a Sheriff for taking How the Sheriff is to plead on 23 H. 6. c. 10 Insufficient bail. The Defendant pleads the Statute of 23 H. 6. c. 10. The Plaintiff Demurs to the Bar, because the Sheriff had not alledged, that he had not dismissed one B. (whom he had taken) by sufficient Mainpernors, but only al­ledgeth this by way of Implication, and not positively, 2 Sand. 58. Postern and Hanson.

Of Bail Bonds, being Discharged or Assigned.

In Debt on Sheriffs Bond, the Principal being Where the Bail Bond shall be discharged, paying the America­ments, and where not. in Prison may be admitted to plead, discharging the Amerciaments (and this is the course of the Court) where the Prosecution is fresh: But where the Defendant in the Original Action, ( viz.) the Principal is become insolvent. Per [Page 115] Cur', The Bail Bond is the only remedy, and they will not discharge that on Ordinary Rules. In this Case North prayed the Continu­ance of Process on the Bail Bond, in regard since the default of the Appearance of Fludd the Principal, he is become Insolvent by suffer­ing several Judgments. But Jones said, That the Bail appeared on the very day of the Retorn, and the default is the Plaintiffs own, and the Bond not above an year old. And per Cur', paying the Amerciaments and Costs, the Bail were discharged, and the Principal admitted to plead, 2 Keb. 545, 553. Fludd and Willi­ams.

The Surety paid the Debt, and he sued the Bail Bond sued by the Surety who paid the Debt, and the Coro­ners took a New Bond. Bail Bond assigned by the Sheriff; on which a Writ being directed to the Coroners, they took a New Bond and assigned it, and they prayed the Money out of the Coroners hands for the Surety. Per Cur', The Coroner cannot discharge his Bail Bond no more than the Sheriff, and they ordered the Principal Debt to be paid, 2 Keb. 287, 400. Foster's Case.

A Bail Bond was discharged upon Motion, Discharged by payment of the Mo­ney before the Retorn of the Writ. Assigument of the Bail Bond. the Money being paid before the Retorn of the Writ, and Common Appearance ordered, 3 Keb. 356. Randall's Case.

If the Defendant appears not to the Sheriffs Bond, according to the Condition thereof, the Plaintiff may (by leave of the Sheriff) sue the Bond in the Sheriffs Name; but its at the Plain­tiffs Election to sue the Sheriff: And the Sheriff shall be amerced till he assign the Obligation to the Plaintiff, Pract. Reg. 24. Siderfin. p. 24.

When Bail is put in de bene esse, (as Bail taken Bail de bene esse. in a Chamber) the Plaintiff cannot sue the She­riffs Bond till it be refused or set aside; but he [Page 116] ought to except against it in the Judges Cham­ber, 1 Keb. 478.

The Court cannot compel a Sheriff to assign Where the Sheriff shall be compelled to assign his Bail Bond. his Bond regularly. But in some Cases they will, as the party was arrested by the Sheriff, and through his default in not Retorning the Writ. The Defendant died. Now in this case, he shall not take advantage ofhis own wrong; but shall assign the bail Bond, or pay the utmost Amerciaments, 2 Keb. 388. Hill and Brown­ing.

It was moved in B. R. to stay Proceedings Proceed­ings upon Bail Bond shall not be stayed until Spe­cial Bail given, where the Plaintiff had been prejudiced by delaying of Appear­ance. upon bail Bond, upon discharging the Amercia­ments and Costs (as is usual.) And it was al­ledged on the other side, That after the same Bail given the Principal had sold his Land, and became irresponsible, and rendred himself to the Marshalsea. And for this cause the Court refused to stay Proceedings, and said, it would not be done until he had given Special bail; because they did not cause him to appear at first, according to their Obligation. And so it is, when the Principal on such default of Ap­pearance becomes a Bankrupt, Siderfin pag. 386.

Of other Bonds (beside Bail Bonds) Entred in to the Sheriff, what are good, and what not: And Pleading.

Vide infra tit. Bonds, between the High-sheriff and Under-sheriff, and others.

Bond to be a True Prisoner.

A Bond given to be a True Prisoner (as by Law he ought) is good, and not within the Sta­tute of 23 H. 6. As to this,

There is a Notable Case of Lenthall and Cooke. The Case is,

Lenthall the Marshal brings Debt on Bond against Cooke. The Condition was,

If the above-bounden A. P. now Prisoner in The Con­dition. the Kings-Bench in Southwark, do and shall from henceforth be and continue a true Pri­soner, in the Custody, guard, and safe-keeping of the above-named John Lenthall, Marshal of the same Prison; and in the Custody, guard and safe-keeping of his Deputy Officers and Servants, or some or one of them, until he shall be lawfully discharged, without committing any manner of Escape or Escapes during the time of his Restraint, Then this present Obligation to be void.

The Defendant Pleads the Statute of 23 H. 6. Pleadings. of Obligations made to the Sheriff colore Officii. And further pleads, That at the time, and long before the Plaintiff was Marshal, that P. at the same time was a Prisoner at the Suit of, &c. And that the Defendant, together with the said P. pro easiamento & favore to be shewed by the Plaintiff to the said P. made the said Bond, &c. The Plaintiff Replies, and Bond was pro meliori securitate of the said Plaintiff, that the said P. should not Escape, and traverseth the Ease and Favour. The Defendant demurrs.

And these things were Resolved by the Court.

1. That the Marshal of the Kings-Bench is within the words, Gaoler and Keeper of Pri­sons.

2. Bonds made to Gaolers for Ease and Favour of Prisoners, are void.

3. A Bond given to save harmless from Escapes, Bond to save harm­less from Escapes, is void. is within this Statute and void; but a Bond to continue a True Prisoner is good: And there is no agreement that it is for Ease and Favour appears, but the contrary rather; for the Plaintiff in his Replication hath Traversed it, and the Defendant hath confessed the Replication to be true by his Demurrer, 1 Sand. 162. Lenthall and Cooke, Latch. 23, 143. Elworthy and Perryer, and Hill there cited.

This Case of Lenthall and Cooke is Reported by Siderfin; and the Case there truly put as here.

The Intention of the Obligation was for Ease Plea. and Favour, and Traversing it hath taken it away.

Now when the Defendant had such Issue Demurrer. offered, and refused to joyn, but demurrs; the Defendant agreed it was for Ease and Favour, Siderfin 283.

Note, A little Evidence in such case would serve to prove Ease and Favour.

A Bond to the Warden of the Fleet to be a True Prisoner. The Defendant without plead­ing the Statute saith, it was for Ease and Favour. The Plaintiff demurrs. The Plaintiff should have Traversed the Ease. And Judgment for the Defendant, 3 Keb. 320, 361. Oakes and Cell.

Condition is, Where D. F. is under his Custody ( i. e. of the Obligee) upon Arrest, at the Suit of the Plaintiff, in Action of Debt of 1400 l. upon Bond by him to the Plaintiff, and at the Re­quest of the Defendant he is permitted to go at Large for six days. If therefore the said D. before the 12th of February renders himself a [Page 119] Prisoner to the Sheriff of Middlesex at the Plain­tiffs Suit on Action of 1400 l. and remain a True Prisoner till he shall be discharged by Consent of the Plaintiff. See the Pleading. Quaere de Judgment, Sir Tho. Jones Rep. 139. Rushant and Waite, Siderfin 132.

But a Bond of one in Execution to be a true A Bond of one in Exe­cution to be a True Prisoner, is void. Prisoner is within this Statute, and void. And as to this the Case was:

The Condition of the Bond was, If Thomas Manningham keep the Sheriff without damage against our Lord the King and one T. P. and at all times be at the Commandment of the said Sheriff as a True Prisoner, and appear before the Justices, &c. Then the Obligation to be void.

The Defendant pleaded the Statute of 23 H. 6. and that the Body of Thomas Manningham was in Execution upon a Recognizance, and that the Sheriff made the Obligation for the delivery of the said Thomas Manningham, and demanded Conclusion of the Plea. Judgment si Actio, i. e. If the Plaintiff ought to maintain his Action.

This is no good Conclusion of the Plea; he ought to have Concluded, Issint nient son fait. For the Statute saith it shall be void; and if it shall be void, then it shall be void from the be­ginning, and then it is not his Deed. And fur­ther, That he had not wisely Concluded his Plea; for this Special Conclusion had straitned the Defendant so, that if the Obligation be void for any other Cause, the Defendant shall not have benefit of it. And yet because it appear'd to the Judges on the Matter in Law, that the Plaintiff had no Cause of Action, the Court gave Judgment against him; for the Obligation is void by the Letter of the Statute, for it makes void Obligations taken in other manner, which extends to avoid Obligations for Bailing those [Page 120] which are contained in the second Branch; as those in Execution, &c, Plowd. 66, 67. Dive and Manningham.

But as for the Conclusion of the Plea, the Condition was, That the Defendant should ap­pear in B. R. to Answer in a Plea of Trespass, and satisfie the Damages. The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his Enlargment, and Issint non est factum. The Plaintiff demurrs Specially upon the Con­clusion of the Plea, which ought to be Judgment Si Actio, and agreed the Plea to be ill, Allen p. 85. Leech & Davies.

The Defendant and L. were joyntly bound Judgment confessed on Escape. to Sir J. Lenthall for the true Imprisonment of W. and there was a Warrant of Attorney to Confess Judgment on the Escape of W. Glyn moved to set aside the Judgment, being a way for Ease only, and Judgment entred without Trial of the Escape. But per Cur', It is to be entred on Action brought, which is brought, and the parties are at Issue. But Sir J. Lenthall assigned his Security to the Creditor, which per Cur', is well enough; and there appearing no Fraud, they refused to set aside the Judgment, 1 Keb. 815. Sir John Lenthall versus Lord Lan­dois.

The Marshal takes Bond of one in Execution The Rules of the Kings-Bench. to be a True Prisoner, who Escapes; Action is brought against him, and well, for the Bond is good. The Marshalsea was Ruled to be enlarged, and this shall be called Within the Rules; and if the Marshall take a Bond to tarry there, it is good, Latch. 143. Sir G. Reynell versus Elworthy, Poph. 165. fine, Sir G. Reynel's Case.

But a Bond to the Marshal, &c. to save harm­less from Escapes, is void, and within the Statute; because it is not a Bond that he shall continue a True Prisoner. Vide the Condition, Record and Pleadings, 1 Sand. 160, 161, 162. Lenthall and Cooke, 2 Keb. 422. Id. Casus.

The Marshal ought not to take Bond for Bond for Chamber-Rent void. Chamber-Rent; this is to come in in Allowance Fees. The Warden, nor other Gaoler, cannot impose what Rents they will on Chambers, 3 Keb. 102. Bond and Mosedale, 3 Keb. 133, 603. Duckenfield's Case.

A Bond or Covenant for Fees is void; but a Bond for Fees. Bond for True Imprisonment is not void primâ facie, without Circumstances, &c. 3 Keb. 133. Mosedale and Middleton.

A Bond for Chamber-Rent is void by Com­mon Law; because the party is restrained contra voluntatem, and shall be Imprisoned till payment. Also the Statute extends to the Marshal only for such Bonds as they may take virtute Officii, Latch. 10. Epsom Case.

Upon a Statute acknowledged, and Extent sued, the Sheriff takes Bond of 20 l. for pay­ment of 10 l. his Fee; and this was before the Liberate. Its a void Bond, 1. Because he takes the Bond before the Liberate. 2. He took his Wages before he did his work, 3 Keb. 678. Ellis and Nelson.

Vide infra tit. Fees.

Note, A Promise is within the Statute, as well Promise. as a Bond. But it is where the Bond or Promise is made by the Prisoner himself, or some other for him. And therefore in an Action on the Case the Defendant promised the Plaintiff, That if B. (a Special Bayliff at his Nomination) arrested A. at his Suit on Cap' ad satisfaciend', [Page 122] and suffered him to Escape, he would not sue the Plaintiff; this is not within this Statute, 1 Leon. 132. Palmer and Smalbrook.

But Hobart in Norton Sim's Case saith, Cove­nant is not within this Statute; that is, because it was not a Bond (for performance) made in the behalf of a Prisoner, as Beaufage's Case is, Hob. p. 13.

As to Assumpsits and Considerations about deli­vering Prisoners in safe Custody, saving harmless from Escapes, permitting to go at large. Vid. infra. Sub tit. Escape in fine.

By the Statute of 13 Car. 2. c. 2. persons ar­rested Where the Sherist is not to take 60 or 40 l. Bail. by Process out of the Kings-Bench, or Common Pleas, not expressing the Cause of Action in the Writ, Bill, or Process, and which are bailable by the Statute of 23 H. 6. c. 10. shall give Bail Bond, not exceeding the Sum of 40 l. and upon Appearance at the Retorn, he shall discharge such Bail Bonds. And if the Plaintiff do not Declare before the End of the next Term after Appearance, then he shall be Nonsuit, and Judgment and Costs shall be against him. But this Statute extends not to Arrests upon Capias Utlagat', Attachment or Rescous, Contempt or Priviledge; nor to popular Action, or Action on any Penal Law (except for Tythes) Indictment or Information.

Now if the Sheriff in such Personal Actions, do take a Bond of 150 l. (where it ought to be but 40 l.) the party shall have an Action upon the Statute against the Sheriff; but the Bond is not void. This was the Case of a Coroner, 2 Keb. 387, 311. Foster and Closon.

And therefore Villars and Hasting's Case, where it saith, The Statute doth not restrain him from any Sum, is good Law; but with this Caution, That Action lies against him if he exceed 40 l. de placito debiti generally, upon this late Statute, Cro. Jac. 286.

In what other Cases the Sheriff may Bail, or not.

The Sheriff cannot bail one Committed for Felony, except it be by the Kings special Writ directed to him for that purpose.

A man Indicted for Trespass, or any the like Offence, before Justices of the Peace, and there­upon Committed to Prison, may upon the Kings Writ be Bailed by the Sheriff to appear at Ses­sions.

Upon a Supersedeas the Sheriff may bail a man Sued, or Indicted, &c. whereupon a Capias or Exigent shall be awarded against him, and the party thereupon is Imprisoned.

CHAP. VIII.

Of Retorn of Writs, and when they may be Retorn­ed. General Rules and Maxims of Retorns. What Writs must be Retorned, and what need not. What shall be a good Retorn of Writs, or how Retorns shall be made, in respect of the Per­son that makes the Retorn, as Sheriffs, Bayliffs of Franchises, &c. In respect of the Forms, and where insufficient Retorns are aided. Where Re­torns shall be void for the Uncertainty or Repug­nancy. What shall be a sufficient excuse for the Sheriffs Non-retorn of a Writ, and what not. What Acts, Process or Appearance shall be good before the Retorn. The Penalty on the Sheriff by the Court for Non-retorn.

A Retorn is but a Certificate made by the Sheriff or Bayliff to the Court, from whence the Writ issued, of that which they have done touching the Execution of the same Writs.

There is a difference between the Teste and Retorn of Writs.

A Retorn may be on the Essoyn-day. A Writ Retorn may be on the Essoyn Day. Appear­ance. shall not abate if the Retorn be quarto die post.

If a man be bound to appear the first day in Term in Court, he may appear the first day of the Essoyn, and then have his Appearance re­corded, and this is good, 2 Bulst. Bedoe and Piper.

Note, Where the Writ or Process is directed to the Bishop, there the Bishop is to make Retorn thereof: And so where the Writ is directed to other Persons (as Coroners) they are to make Retorns.

General Rules of Retorns.

Deputies are allowed in Ministerial Offices: But all Retorns made by them are to be made in the Name of the Principal Officer, 3 Bulst. 78.

The Sheriff must retorn true, and not contrary to the Record; if he do he falsifies all his Proceed­ings. L. brought Trespass against J. G. Widow, hanging the Suit, she takes D. to Husband; Judg­ment was against J. G. and a Writ was directed to the Sheriff, qd' caperet J. praedictam per nomen J. G. ad satisfaciend', &c. the Sheriff cannot now retorn that she was married. Crok. Jac. 323. Doley and White.

The Retorn must not be contrary to the former Retorn. If the Sheriff retorn upon the Venire Retorn of Jurors. fac' 12 Jurors, upon the Distringas he may not retorn one had nothing, for this is against his former retorn, 19 H. 6. 38. For if he had at first and alien since, yet it is chargeable with Issues. But if the Land be recovered by Eign Title, in the mean time he may retorn it with this Conclusion Et issint nihil habet. Id. ibidem. So if he had Land in the right of his Wife, and she is dead in the mean time.

The Sheriff is to put his Name to every Retorn made by him, or the Retorn is to be void. By the Statute of York 12 Ed. 2. c. 5. 1 Bulst. 73. The Statute appoints that he who Retorns shall add his Name to the Retorn, and it is sufficient if it be his Christian Name and Sirname, and the [Page 126] name of his Office is not requisite, Crok. Car. 189. Bethell and Parry. Plowd. 63. tho' in Scrogs Case, More 548. saith the Name of Office must be subscribed, as well as by the Sheriffs Christi­an and Sirname, but by Coroners only the name of Office.

If the Sheriff arrest one upon Mean Process, and doth not Retorn the VVrit, he is a Trespassor; and therefore Stiles Pract. Reg. 276. is not Law, where he saith it is not requisite that the Sheriff in making a Retorn should insert his Title or name of Dignity, or Christian or Sirname, but only his Name of Office. Before the Statute of York, 12 Ed. 2. c. 5. Rast. Ret. of Sheriffs fol. 345. no Name was used to be put to the Retorn of the Writ by the Sheriff, nor any other Minister or Officer which was inconvenient, upon which complaint was made to this Parliament, and so remedied.

The Retorn of the Venire fac' was executio istius Brevis patet quodam panello huic Brevi annex' Tho. H. nuper Vicecom', and then the now Sheriff added these words, istud Breve sic indorsat' fuit mihi J. R. Vic' deliberat' per Tho. H. Mil' nu­per Vic' in executione Officij sui; it's sufficient, for T. H. ought to put his Name to the Retorn: For nuper Vic' shews he was not then Sheriff, he ought to have put his Name to it T. H. and then the new Sheriff ought to subscribe istud Breve sic indorsat', &c. Plowd. 63. 5 Rep. 41. 2 Rol. Rep. 209. Bethers and Parry. Vide infra Cro. Car. 289. contra.

Retorns must be made according to the Ancient Course, and according to Presidents. As Waste was assigned in S. the Retorn must not be qd' ac­cessit ad S. but ad locum vastatum; vide infra, 27 H. 8. Rol. 2. Dalt. 162, 163.

So a Retorn of non inveni partem for non est inventus, it's Error and not amendable, 9 H. 6. fo. 12.

Mercer was outlawed at the suit of H. it was moved to avoid the Outlawry, because the She­riff retorned the Exigent on the back of the Writ thus, ( viz.) superdictus Mercer, where it ought to be infra nominatus Mercer; for nothing was written above but within. But by all the Justices the Retorn was good. So if he had writ the Retorn on the inner side of the Writ. Dalt. 164.

Surplusage is no hurt to the retorn of a Writ, as in Elegit, and the Sheriff retorns that to be ex­ecuted, the extent of the Church of St. An­drews, alias dict' St. Edes, and the true name is Andrews, yet good. Winch. p. 27. In Scire fac' retornable in B. If the Sheriff retorn Scire fac' &c. qd' sit coram vobis ad faciend', qd' Breve re­quirit: Altho' vobis had relation to the King, where the garnishment ought to be coram Justi­ciariis, yet good; for those words ad faciend' qd' Breve requirit, comprehend all. 29 Ed. 3. 33. adjudged every Retorn must exactly answer the Writ.

Statutes aid Misretorns and insufficient Retorns, but not where there is not any Retorn. Cro. Car. 587. Becknam.

None can make the Retorn of a Writ, but such a person, who at the time of the Retorn, remains an Officer to the Court. Vide infra.

Retorn of a VVrit is not Traversable, vide in­fra: Or against the Retorn of the Sheriff, there is not any Traverse, Averment or Answer.

Per Maynard in Searl and Longs Case. Mod. Feigned Retorns mischie­vous. Rep. 248. It's a great abuse in Officers to retorn such feigned name, the first cause of which was the ignorance of the Sheriffs, who being to [Page 128] make Retorns, and looking into the President Books for the Form, and finding John Doe and Richard Roe put for Examples, made their Re­torns accordingly, and took no care for true Summoners and true Manucaptors. And he ci­ted a Cause.

Judgment was entred in B. in a Plea of Qua­re Impedit, upon non-appearance to the Grand Distress; but there the Party was summoned and true Summoners retorned. Upon Non­appearance an Attachment issued, and real Sum­moners retorned upon that; but upon the Di­stress it was retorned that the Defendants distri­cti fuere per Bona & Catalla, & Manucapt' per J. Doe & R. Roe; and for that cause the Judg­ment was vacated.

Note. When the Grand Distress is awarded, it Grand Di­stress. is, that the Sheriff is commanded to seise the thing in question.

If the Defendant be taken, then at the retorn Rule to the Sheriff to retorn his Writ. of the Writ, the Plaintiffs Attorney at the day of the Retorn of the Writ, may give a Rule at the Clerk of the Rules, for the Sheriff to re­torn his Writ; or if he go out of Office, then a Distringas to the new Sheriff to distrain the old Sheriff to retorn his Writ: But if the De­fendant be arrested by a Bayliff of a Liberty, who hath the Execution and Retorn of Writs, then he must retorn his Warrant back to the Sheriff by Rule of Court, or Distringas directed to the Sheriff to distrain the Bayliff, and so amerce the Bayliff that way.

Of Retorns in respect of the Old Sheriffs and New Sheriffs.

Upon the Cap' the Sheriff retorns languidus Languidus in Prisona. in Prisona, and a Distress issues to the new She­riff to make the former [...] Sheriff to have his Priso­ner; and the new Sheriff retorns issues on the former Sheriff, and an alias Distringas issues What must come in way of Retorn, and not by way of surmize. against the Sheriff. And After one of the Councel would have surmised, that the Sheriff against whom the Distress issued was dead.

But by the Court, He shall not have this by way of Surmise, but it ought to come in by the Retorn of the Sheriff. Dier 25. a.

The Retorn of the old Sheriff shall not conclude the new Sheriff. On a Fi' fa' the She­riff retorned qd' cepit bona ad valentiam 10 l. & non invenit Emptores, whereupon there went out to the new Sheriff a vendition' exponas, who re­torned that his Predecessor non cepit bona, & ideo, &c. and held good. 34. H. 6.

VVhere and what VVrits need to be retorned, and where, and what not.

Generally all VVrits of Execution (except Ele­git) Ca. sa. Ha­bere fac. Seisin. Pos­sessionem, Fieri fac. as Cap' ad satisfaciend', Habere fac' seisinam, Habere fac' possessionem, Fieri fac', Liberate, &c. which are the final Process, and after which no Judgment is given, nor no further Process; and when matters en fait are only to be done, as Land to be delivered, Seisin had, Goods sold, &c. are good, tho' the Writs be not Retorned or Ei­led (if the Execution be duly made.)

But in case of an Elegit otherwise, because the Elegit must be Retorn­ed, and why. Extent is to be made by Inquisition, to the in­tent that the Court may judge of the suffici­ency of it, and every Inquisition ought to be of Record.

Capias in Process must be Retorned, 4 Rep. 67. Cap' in Process must be Retorned. Fullwoods Case; in other cases the Party is at the end of his Suit; otherwise of a Cap' in Process, for the end of the Arrest is, that the Defendant shall appear. 5 Rep. Hoes Case.

In a Scire fac' for Execution, it's a good Bar that the Sheriff levied the Damages by Fi' fac' tho' he had not retorned the Writ. More 468. Hoes Case.

The Writ of Retorn' Habend' is not retornable, Retorn [...] haben do. 2 Rol. Abr. 434.

The Sheriff was ordered to retorn an Hab' Habere fac' seisi­nam. fac' seisinam, the Execution is good if he do not retorn it. But perhaps a VVrit of Error in Par­liament may be brought; and if he will not re­torn it, the Court shall amerce him. 1 Rol' Rep. Godsall and Sir C. Heydon.

The Writs of Redisseisin and Postdisseisin are Redisseisin, Postdissei­sin, Admea­sur' de pastur', Dower. Vicountiels, and not Retornable; and the Sheriff shall hold the Plea, and give Judgment, 2 Inst. 82.

So the Writs of Admeasurement of Pasture, and of Dower, and the parties may thereupon plead before the Sheriff in the County. But these Pleas may be removed out of the County Court by Pone, 2 Inst. 369.

Where the Sheriff Retorns Cepi corpus & para­tum Duces te­c [...]. habeo, and brings him not in, then the Writ of Duces tecum shall be awarded, to have the Body in Court sub poena, 1 Bulstr. 82. Gerton's Case.

Scire fac' issues out of Chancery to the Sheriff Security of the Peace. The Sheriff not to Re­torn sepa­ratim. of H. and the Justices of Peace, to call L. before them to take Security of the Peace. L. enters into a Recognizance, and the Sheriff Retorns; this Matter is not good, the Justices should have Retorned too. For the Viscount does not meddle with them as Sheriff, but by virtue of this Com­mission only, 21 H. 7. 20, & 21. 2 Rolls Rep. 257. Leonard's Case.

What shall be a good Retorn, or not; or how Retorns of Writs are to be made.

In respect of the persons that make, or ought to make the Retorn. As,

  • Sheriffs.
  • Bayliffs of Franchises.
  • Sheriffs.

If a Writ be directed to a place where there Where there are two She­riffs and one Retorns the Writ. are two Sheriffs, as London, Bristol, &c. and one of them doth Retorn the Writ, its insufficient; for it must be Retorned in both their Names, tho' one (according to Custom) may execute it, 21 Assize 20. Br. Officer 22.

But if a Warrant be directed to two Bayliffs Two Bay­liffs of a Franchise. of a Franchise to execute a Writ, the Retorn of one of the Bayliffs in the Name of both is suf­ficient, Tr. 39 El. Palmer and March.

If a Writ directed to the Sheriff be executed, How the new Sheriff ought to Reto [...]n the Writ exe­cuted in the time of the old Sheriff. and after a new Sheriff is chosen, the new Sheriff ought to Retorn the Writ in this manner, (scil.) Recepi hoc breve praedecessori meo directum sic Indorsatum.

So if upon a Warrant directed to the Bayliff So of a Bayliff of a Fran­chise. of a Franchise to Execute a Writ, it be served; and after and before the Retorn of it the Bayliff is removed, and a new Bayliff chosen, the Re­torn to the Sheriff shall not be in the Name of the old Bayliff, but of the new Bayliff in the manner aforesaid; for the old Bayliff is now as a meer Stranger.

But if a Writ directed to the Sheriff is not How, if it be not execu­ted in the old Sheriff. Executed by him before he is removed, and another chosen, and after the Writ is Executed; this shall be Retorned generally in the Name of the new Sheriff, without any mention of his Predecessor.

The same Law is of the Bayliff of a Fran­chise, Trin. 39 Eliz. Palmer and Marsh. If a Writ be Executed by one Sheriff, and before the Retorn of it a new Sheriff is chosen, he ought to Retorn the Writ, and not the old Sheriff, because the new Sheriff is now the Officer of the Court.

Maxim, None can make the Retorn of a Writ, but such a person, who at the time of the Retorn remains an Officer to the Court.

A Venire was Retorned in this manner: Per T. R. Vicecomitem. Istud breve cum pannello annexo mihi deliberat' fuit per Thomam Hanmer Militem, nuper Vicecomitem in exitu ab Officio suo. Et sic Indorsatur. Thomas Hanmer Miles, nuper Vicecomes. It was assigned for Error, in that it appears it was Retorned by one who had no Authority; for in saying Nuper Vicecomes ex­cludes him, and that he was not Sheriff when he made the Retorn.

Per Cur', Its good; for it appears by the Re­cord, that he was Sheriff next before Thomas R. and this word Nuper Vicecomes indeed doth [Page 133] necessarily imply, that he was not then Sheriff at the time of the delivery of the Writ to the new Sheriff, then it must be construed, that by the word nuper Vicecomes he was Sheriff at the time of the Pannel made; and if he had Re­torned it without the word Nuper Vicecomes, it had been good, Cro. Car. 189. Bethyll and Par­ry.

The Record is, that the Venire fac' to try the Issue was Retorned by J. S. Sheriff of the Coun­ty of D. It was assigned for Error, that J. S. was not then Sheriff of the said County. And it was certified by a Record under the Seal of the Exchequer, (viz.) That he was Sheriff; upon which the Judgment was affirmed. But some are of Opinion, that this cannot be assigned for Error against the Record of the Court, Mich. 11 Car. B. R. Smith and Smith.

If the Writ be Retorned by one that was not Appearance cures the Retorn of one that was not Sheriff. Sheriff, its a manifest Error; but if the Defen­dant appear afterwards and plead, its not material; for his Appearance hath made it good, Cro. El. p. 582. Thoroughgood and Scroggs.

If the Sheriff shall Retorn Mandavi ballivo Retorn to Mandavi ballivo, &c. how. Libertatis, and shall not therein set down the proper Name of the Bayliff, its not good.

The Sheriff cannot serve a Writ in part, and write to the Bayliff of a Liberty to execute the other part; as a Writ served as to part of the Jurors. But if the Sheriff upon a Capias in Debt against Three, Retorn that he had taken Two, and as to the other Mandavit Ballivo Liber­tatis, &c. good.

The common Form of Vic' Ret' is, Feci quod­dam Warrant'; but to the Bayliff of a Liberty, Mandavi, &c. 2 Roll. Rep. 263.

Praecipe quod reddat was awarded Vicecomitibus Sheriff cannot Retorn▪ He sum­moned himself. Glouc', versus A. B. & C. The Sheriffs Retorn, that the said C. was one of the Sheriffs of the said City. Ideo ego praefat' C. &c. alter Vicecom' Civitat' praedict' meipsum secundum Exigentium brevis istius summonere non possum. Respons. It was Adjudged a good Re [...]orn, Bendl. n. 160.

The Retorn was in this Form, upon a Writ of Entry against Edw. Mytchell, Thomas Wykes and others.

Summ' infranominat' Edward' Mychell, R. Fenn & J. Denn, & quoad summ' praedict' Tho. Wykes▪ Justiciar' infrascript' Certifico qd' idem Thomas, & ego Tho. Wykes jam unus Vicecomit' Civitatis praedict', sum' unus & idem, & non alius neque di­versi. Ideo ego praefat' Thomas & Hugo Hyde alter Vic' Civit' praedict' meipsum secundum Exigen­tiam brevis istius summ' non possumus. Respons. prae­dict' Thomae Wykes & Hugonis Hyde Vic'. Anderson 110. n. 21.

Bayliffs of Franchises, vid. suprà.

Retorn' de Vic' per Bayliff.

If a Writ to enquire of Damages be directed The Sheriff cannot Retorn a Writ of Inqu [...]ry, & [...] [...]i [...]ected to himself to be executed by a Bayliff of a Li­berty. to the Sheriff, he ought not to make such a Retorn, That he had Commanded such a Bayliff of such a Liberty, &c. Cui executio praedict' brevis t [...]talit' restat fienda, & quod alibi infra Com' praedict' per se fieri non potuit, qui quidem Ballivus sic sibi respondet; and so sets down an Inquisition before the Bayliff, and 40 l. damage. This Retorn is erroneous, untrue and against Law; because the Warrant was directed to the Sheriff himself to be Executed in any part of his Shire, and no Venue contained in this Inquest of Office, as there is in other Writs which Intitles the Bayliffs of Liber­ties. But because there were divers Presidents of [Page 135] this Form, the Court would not Reverse it, Hob. p. 83. Virely and Gunstone.

If the Sheriff Retorn, That the Bayliff of a Franchise (who had Retorn of Writs) had Re­torned, &c. this is good, altho' he doth not shew of what place he is Bayliff, 29 Ed. 3. c. 1.

W. had a Cap' ad satisfac' to the Sheriff of New Pro­cess, be­cause the Retorn was mista­ken. Middlesex, and makes Precept to the Bayliff of the Dutchy, and the Precept was Ad capiend' H. ad respond' W. where it should be ad satisfaciend', and the Bayliff retorn the Precept served, and the Sheriff retorns to the Court Cepi corpus secun­dum Exigentiam brevis; it was moved to have a new Cap. ad satisfac' against H. For tho' the Sheriff by his Retorn had Charged himself to the Plaintiff, so that he may demand Execution against him; yet where in truth the Defendant was never taken in Execution for the Debt, as here, but only taken ad respondend', there the Plaintiff is at liberty to take new Process against the Defendant, which the Court granted, Yelv. 52. Wood and Harborn.

Presidents,

Mandavi ballivo qui nullum dedit responsum, 2 Sand▪ 99. Jaques and Cesar.

Mandavi ballivo upon Fieri facias, and upon Non omittas awarded. Vic' ret' nulla bona, 1 Sand. 305. Merchant and Driver.

The Form. What Retorns shall be good in respect of the Form, or not; and where Insufficient Retorns are aided.

As to the Sheriffs setting his Name to the Re­torn, vide suprà.

Sometimes the Retorn is Insufficient for omis­sion Omission. of Words: As where the Retorn was, Resi­duum hujus brevis apparet in quadam Schedula, for Residuum executionis hujus brevis, Fitzh. Ret. 14.

And the Sheriff is bound to take knowledge of the Law in making his Retorn; therefore in a Scire facias to L. B. Master of the Grammar School of S. &c, and to the Scholars of the same, he retorned that Scire fecit to the Master, and doth not say, To L. B. Master, Bro. Ret. 88.

In a Scire fac. the Sheriff retorned Scire feci A. B. modo & forma prout istud breve exigit & requi­rit, and said not infra nominat' A. B. yet per Cur' its good, for these words prout hoc breve exigit are tantamount, 2 H. 4. 13. 3. H. 4. 9.

The Sheriff retorned Non inveni, for Non est Retorn Non inveni is Error. inventus, and the party thereupon was Outlaw'd. This was assigned for Error, and not amendable, Fitzh. 19.

A Retorn by the Sheriff in the Third person, A Retorn in the 3d person not good. is not a good Retorn. The Sheriff retorned, Quod praecepit ballivo de S. for Praecepi ballivo, and he was amerced for it, 21 Ass. 17.

The Sheriff upon a Capias retorned, That he Rescous retorned. arrested the Defendant at S. and would have carried him to the Gaol, and A. B. rescued him. This Retorn was Insufficient, because he did not shew at what place A. B. made the Rescue; for it shall not be intended the place where the Arrest was, Bro. Ret. 97.

Vide plus tit. Rescous.

The Teste of a Writ was 2 Martii 11 Eliz. Prox▪ fu­tur', how to refer. The Retorn was, In quarta Septimana Quadrigesimae prox' futur'. The words prox' futur' refer to quarta Septimana, not to Quadrigesimae, Mo [...] 365. Barton and Lever.

In Trespass the Sheriff retorned in the Com­mon That the Defendant was attach­ed per, &c. how to be retorned. Bench, that the Defendant was attached per catalla ad valentiam de 10 l. Its a void Retorn, for he ought to retorn he was attached by one Beast or Chattel certain, and name them, that so they may be forfeited, Cro. El. 13. Lawrence and Nethersole, 1 Anders. 51. vid. tit. Attachment.

In Outlawry of Murder the Sheriff retorns, Retorn in Outlawry. Ad Comit' meum tent' apud D. en le County de Nor­thumberland, and saith not in Comitat' meo Nor­thumbriae tent', &c. Its Error, for one may be Sheriff of Cambridge and Huntingdon, and of Surrey and Sussex, 2 Rolls Rep. 52. Alder's Case.

Action of the Case upon Escape of one taken Time ( viz.) by Ca. sa. ret' Paschae 16 Car. 2. on a Judgment entred in Mich. 16 Car. 2. which is repugnant and impossible; and this moved in Arrest of Judgment on the retorn of a Writ of Enquiry. But the Teste appearing to be Jan. 16 Car. 2. ret' Crast' Ascent', and that Virtute brevis postea & ante retorn', (viz.) such a day of May 16. which should be 17. Per Cur', This is a void Retorn, ( Viz.) being expositive only, 2 Keb. 101. Hanmer and Unit.

Where a Retorn shall be void for the Incertainty or Repugnancy, or not.

In a Replevin on the Causam nobis significes, In Reple­vin. if the Sheriff retorn, That the Beasts cannot be delivered, quia visum inde habere non potuit. This is not good, because he doth not say accessit ad locum; for perhaps he could not have the View, because he did not go where the Beasts were, 2 Ed. 3. 54. b.

Outlawry was reversed, because the Exigent had Uncertain retorn of the Exi­gent. Prout sibi constare poterit, is ill in re­torn. an uncertain Retorn, 2 Rep. Dr. Drury's Case, 141.

If a Capias comes to the Sheriff to take a man, its no Retorn that he was found within his Bailiwick after the delivery of the Writ prout sibi constare poterit. This is not good, but he ought to retorn expresly Quod non est inventus, 9 H. 6. 57.

So in a Fieri fac' de bonis Testatoris against Exe­cutors, if the Sheriff retorn that they have not any Goods in balliva sua, after the delivery of the Writ prout ei constare poterit. This Retorn is not good; for he ought to take notice whether they had Goods or not, and so retorn it, 9 H. 57. b.

But in Debt against an Executor, who pleads Retorn on Assets. plene Administravit, and Assets are found upon a Fieri fac', the Sheriff retorns, that he had nothing within the same County; its a good Retorn, Bendloes n. 91.

Upon Habere fac' seisinam the Sheriff retorns, Uncertain. that the party who ought to take the Seisin non prosecutus est breve. This is not good; for the uncertain Intendment of it, and the coming of the Sheriff to have seisin is not properly a pro­secution of the Writ, Pasch. 15 Jac. Floyd & Bethill.

On Entry sur disseisin of two Acres, Hab' fac' Repugnant seisinam was awarded. The Sheriff as to one Acre retorns Habere feci, as to the other Tardè; the Sheriff shall be amerced for such a Retorn, as being contrary and repugnant in it self. As in Ca. sa. against two, the Sheriff retorns as to one Cepi, and to the other Tardè, he shall be amerced, 2 Leon. 175.

Vide Rescous.

What shall be a good Retorn against the Admittance of the party, or not.

Debt against the Heir: If the Defendant In Debt. against the Heir. pleads, Nothing descends to him but an House in B. upon which Judgment is given for the Plaintiff; sed quia ignoratur of what value the House was, a Writ issues to the Sheriff to enquire of the Value, and according to that to make Execution; and the Sheriff retorns, That the Heir sold the House before the Writ came to him. This is not a good Retorn, Hen. 7 Jac. B. R. Goldson and Bennet.

If in Action of Debt against Executors the De­fendant In Debt against an Executor. acknowledgeth the Action, on which a Fieri fac' issues, the Sheriff may retorn Nulla bona, &c. for this stands with the Judgment, inas­much as he confest the Action; but not, that he had Goods, 2 Roll. Abr. 459. Newman and Babing­ton.

Upon Habere fac' seisinam, upon a Judgment against J. S. it is no good Retorn for the Sheriff to retorn, That J. S. had nothing in the Land, nor was Tenant, 17 Ed. 3. 66. b.

The Sheriff on Levari Retorns, That he had Sheriff pleads. Levied the said sum (which was 2000 l.) and in Debt he pleads as to 308 l. Nil debet, and as to the rest a Release from the Plaintiff; the Plaintiff demurrs. Now the Plea of Nil debet is ill, and the Sheriff is Estopt to plead it; for it is con­trary to the Retorn. But per Cur', since they have not relyed upon the Estoppel, but taken Issue, that could give them no advantage, Hob. 206. Speake and Richards.

What shall excuse the Sheriff for his not Retorning, and what shall not.

As for the Sheriffs retorning a Rescous, Vide sub tit. Rescous.

The Sheriff retorned a Resistance on Habere Resistance. fac' seisinam, and he was amerced 20 Marks; because he did not take the Posse Comitatus, and an Alias awarded, Hill. 19 Ed. 2. Execution 147.

On Habere fac' seisinam, its a good Retorn to That none came to take Seisin. excuse the Sheriff, that he at all times was ready to deliver Seisin, and appointed divers times in certain for the party to come to the Land to receive Seisin; but none comes for the party to receive it, 2 Roll. Abr. 459. Floyd and Bethell.

So he ought to excuse himself from the time before the day aforesaid, otherwise the Retorn is not good; for peradventure he was requested before, and would not perform it, mesme Case.

It is no good Retorn for the Sheriff to say, That he is not paid his Fees. That the party will not pay his Fees, and there­fore that he would not execute the Writ, 34. H. 6. Bro. Ret. 10. The very words of the Writ do enjoyn the Sheriff to make retorn of it; and if he be not paid his Fees where he is allowed to take them, he may recover them by Action.

If a Writ out of the Kings-Bench be directed Tho' Infe­rior Court be not bound to allow a Writ, yet they must make a Retorn. to an Inferiour Court, which the Inferior Court is not bound to allow, but may proceed notwith­standing the Writ directed to them; yet they ought to make a Retorn upon the Writ, and in the Retorn to shew the Cause: For the Writs from above ought to be obeyed, Stiles Pract. Reg. tit. Retorn.

Sheriff retorned a Protection on Arrest. It Sheriff cannot retorn a Protection on arrest. was set aside per Cur', in regard the Sheriff can retorn nothing but Non est inventus, or Cepi-corpus, at his own peril; and its in his discretion to allow or disallow any Protection, and the Sheriff was ordered to retorn his Writ on a Pain, 2 Keb. 681. The Sheriff of Yorkshire' s Case.

If a man be taken in Execution at the Suit If Super­sedeas comes. he must retorn the Super­sedeas with the Body. If the party discharge him, its a a good Excuse. the King; afterwards a Supersedeas comes to the Sheriff, by 2 H. 7. fo. 17. he may retorn the Super­sedeas with the Body.

So the Sheriff is to retorn the Capias and the Body at the Day; but if the party discharge him, this is a good excuse, 3 Bulstr. 96, 97.

In Replevin, if the Sheriff retorneth, That the Defendant claimeth Property, its a good Excuse, Dalt. 181.

The Sheriffs of London may retorn their Cu­stom, Dalt. c. 73.

Mandavi ballivo Libertatis, qui nullum dedit responsum, is a good Retorn to excuse.

Tardè is an Excuse.

So that the Plaintiff non invenit plegios de prose­quendo.

Amendment. Where Amendment shall be of Sheriffs Retorns, and where not.

On Venire fac' no Retorn was indorsed, nor any Name of the Sheriff on the back of the Writ, nec quod executio brevis patet in quodam pan­nello, &c.

The 18th of Eliz. aids Insufficient Retorns, not where there is no Retorns; and it could not be amended after Verdict, and a new Venire fac' issued, 5 Rep. 41. Rowland's Case.

8 H. 6. c. 12. extends to Retorns; but yet Mis­prision of Clerks are only to be amended. But it extends not to a Retorn by the Sheriff where it should be to a Coroner; nor doth 18 Eliz.

Nor to a Retorn of a Venire fac' without the Name of the Sheriff; vid. plus Co. 8 Rep. 162. Black­more's Case.

The Venire fac', and other Process, is directed Vicecomitibus de Canterbury, and the Retorn is made by one Sheriff only. The Court amended this at Common Law, and not upon the Statute of Jeofails, as was Sherington and Talbot's Case, 1 Cro.... and 39 H. 6. 40. And they swore the Jury here, that there was but one Sheriff in Canterbury, Siderfin p. 243. the King and Per­eival.

Album breve retorned is not amendable, Mo. Rep. 1196.

Where the Retorn of the Sheriff shall be amended, as well after Verdict as before, vid. 10 Rep. Denbaud's Case.

Vide hic sparsim pluis de Amendments.

Having now Treated largely of the Insuffi­ciency and Validity of Retorns in General, I shall consider how the Law is in Cases where Sheriffs retorn no Writs; or what Act, Process or Appearance shall be good before the Retorn, and the penalty on the Sheriff for not Retorn­ing.

As to not retorning of Execution, vide in­fra.

Where a man is to lose an Inheritance if he do not appear, he shall appear without the Retorn of the Sheriff gratis, by Day in the Roll, 10 H. 7. 11.

Where a man is to have a [...]orporal pain if he doth not Appear, he may appear without the Retorn of the Sheriff gratis, Id. ibid.

In Trespass; if after the Exigent is issued, the Defendant renders himself and had a Superse­deas, he may appear by the Roll, altho' the She­riff doth not retorn the Exigent at the Day, 38 Ed. 3. 20. b.

In a Writ of Debt, if no Original be retorned, nor any Retorn made, yet the Defendant may appear by the Roll, 29 Ed. 3. 18.

In a Writ of Debt, if the Sheriff retorn the Original Nihil, &c. yet the Defendant may ap­pear for fear of a Capias, 10 Jac. B. R. Slaney and Vautrey.

The penalty for not Retorning.

Nota pro Regula by Hales: (1) The Court will ☜ discharge Prisoners on Common Bail in two Terms. (2) They will inflict Penalties on Sheriffs, for not making Deputies; and will (whe­ther in Office or not) imprison them, for not retorning of Writs by the Day, and not leave them to Amerciaments, or Distringas nuper Vice­comit', 2 Keb. 812.

In 1 Bulstr. 201, 202. an Habeas Corpus was directed to the Warden of the Fleet, to bring in the Body of a Prisoner in his Custody; who refusing to make his Retorn, another Day was give [...] him upon pain to return the Body.

If the Sheriff takes J. S. upon a Latitat or Capias, and doth not retorn the Writ, an Action lies against him.

CHAP. IX.

Remedy against the Sheriff for a False Retorn: Where and in what Cases, and what Action lies against him for a False Retorn. Where such Actions are to be brought, how to be laid, and the manner of declaring therein. Of the reason of the Retorn of Cepi Corpus upon Bail taken. Where Action lies against the Sheriff or Bayliff of a Franchise, and which of them upon a False Retorn. Reme­dy against the Sheriff for not Retorning the Writ; or against his Bayliff, or against the Bayliff of a Franchise. Of laying the Action; and of the De­claration thereon. Where, and in what Cases a man may traverse the Sheriffs Retorn or not.

FOr Remedy against Sheriffs, Bayliffs and Gaolers, and where the Action is to be laid as to Mis-feazance, Non-fezance, Faux-retorns and Non-retorns, vide Stat. VV. 2. c. 39.

For Mis-feazance,

1. For a Faux Retorn; where and in what Cases Action lies, and where not; and where and how such Actions are to be brought, and the manner of Declaring therein.

In Partition, or other Real Action, if the She­riff Summon­ed. Retorn the Tenant summoned, when in truth he was not, Action of Deceit lies against him, 26 Ass. 48. 1 Brownl. 157.

So in a Real Action, if the Demandant deliver a Writ of Summons to the Sheriff, and the She­riff summon the Tenant accordingly, and after does not retorn the Writ, Action on the Case lies against him, H. 32 El. B. R. Marsh and Astery.

So if the Sheriff retorn one Summoned or Proclaimed, which is not, Action on the Case lies; but this is not assignable for Error, Mo. 349. Corbet and Marsh.

Action on the Case lies against the Sheriff Delivery on Inqui­sit ion. for retorning, That he had delivered to the Plaintiff, upon Inquisition taken where he re­fused to deliver it, and so the Retorn is false; tho' it was objected, that perhaps the possession is kept against him manu forti. But per Cur', that is but mitigation of Damages; but his Retorn was false, and therefore the Action lieth, 1 Rol. Abr. 738. Lister and Bromley.

If the Sheriff retorn Exigent 3 aut 4 exact', Exigent. and that there were not more Counties, where in truth there was a fifth County; the Plaintiff shall have Action on the Case against him, 9 H. 6. 60. b.

Sheriff arrests the party, and yet retorns Non est inventus; Action on the Case, or Trespass Non est inventus. or False Imprisonment lies against him; for he is a Trespasser ab initio, Cro. El. 729. Hawkin's Case. 18 Ed. 4. 18.

Action on the Case was against the Sheriff, Cepi corpus on Stat. 23 H. 6. for that he arrested J. S. and set him at large absque aliqua securitate inventa for his Appearance, and at the Day retorned Cepi corpus, and that the said J. S. did not appear at the Day, but hid himself; and that upon an Habeas corpus award­ed he retorned Paratum habeo, which was Faux, whereby the Plaintiff was delayed in his Suit, &c. The Defendant pleaded, That J. S. being arre­sted put him in Sureties for his Appearance, J. N. and J. D. who are persons of sufficient Estate within the County, and were bound to him in 40 l. for the Appearance of J. S. at the Day in the Writ mentioned, and pleaded the Statute of 13 H. 6. c. 10. by reason whereof he let [Page 146] him at large, and traverseth Absque hoc that he let him at Large, absque aliqua securitate inventa prout, &c. Cro. El. 624. Barton and Aldworth.

The Court held the Plea and Traverse to be good; for he is by the Statute compellable to take Bail, and its left to his discretion what Bail to take: And altho' he had not the Body at the Day, and afterwards at the day of the Habeas corpus retorned, quod paratum habco, when he was at Large, that is a contempt to the Co [...]t and Fineable; but its nothing as to the party, nor can he take advantage of it.

So that the Law which has been disputed, is Sheriff not charged in Action on the Case for retorn­ing Cepi corpus, when he had bailed the party. 23 H. 6. 10. A General Law in some Cases. setled, That where the Sheriff takes Bail accord­ing to the Statute of 23 H. 6. and retorns Cepi corpus; tho' the party do not appear at the Day, yet the Sheriff shall not be charged in an Action on the Case for a False Retorn, Siderfin p. 22, 23. Allen and Robinson, Mo. n. 590. Langton and Gard­ner.

For the Statute of 23 H. 6. is a General Statute, of which the Judges shall take notice; but if it does not appear to be a Retorn within the Sta­tute, but at Common Law, there for his Non­appearance Action lies. And there is a Case in Siderfin on this Point which is worth observation, as to laying the Action and Pleading:

Action on the Case was brought for a False Retorn, i. e. Cepi corpus, and yet he had him not at the Day, but suffered him to escape. The Defendant demurs to the Declaration. Now the Action is good, because the Declaration shall be taken to be true upon this Demurrer. And the Statute of 23 H. 6. is in part a private Statute, and the Court will not take notice of it without pleading it. But had the Defendant pleaded it Specially, or had he pleaded Not Guilty, he might have had advantage of this Statute, and [Page 147] have ousted the Plaintiff of his Action. After the said Statute the Sheriff cannot make a Special Retorn, but Cepi corpus, or Non est inventus. So that the Case of Allen and Robinson as to that Point, is good Law. For such Action lies not properly against the Sheriff, because the Statute of 23 H. 6. compels him to Bail the Prisoner; and yet the Sheriff shall retorn a Cepi corpus, as for­merly, Siderfin p. 439. Parker and Welby.

Now its said in Benson and Welby's Case, that 23 H. 6. c. 10. is a private Statute, and ought to have been pleaded, 2 Sand. 154. Benson and Welby.

Now that Statute, as Whelpdale's Case is, is a private Law as to Sheriffs Bonds; but as to Ex­tortious Fees, its a publick Law, 2 Keb. 626, 657, Mod. rep. 33. mesme Case.

If a Sheriff levy Money on a Levari facias, Debt vers. Vic', if he levy the Money on Levari. upon a Recognizance, at the Suit of J. S. and retorns the Writ served, J. S. may have Debt against the Sheriff, or against the Sheriffs Execu­tors. But in this Case the Plaintiff demurr'd to the Defendant's Plea, and Concluded ill. The Plea was grounded on a Release, and he should have demanded Judgment, if the Defen­dant should be admitted to plead a Release made after the Sheriff had made his Retorn, 1 Rolls Abr. 518. Speake and Rich [...]ds, 1 Brownl. 57. mesme Case. Hob. p. 206. mesme Case.

Action on the Case lies against a Sheriff, who Action lies for accept­ing the Retorn of one that is not Bayliff. Against Bayliff of a Fran­chise. accepts of a Retorn of one that is not Bayliff, and against him that made the Retorn, Mo. 431. Palmer and Smalbate.

Action on the Case lies against the Bayliff of a Franchise for negligent Execution, or a False Retorn, Mo. p. 431.

Action on the Case lies against a Sheriff, for For ma­king other Retorn, than is re­torned by Bayliff of a Liberty. Where the Action lies against the Sheriff or Bayliff of a Fran­chise on a False Re­torn. making other Retorn than is retorned to him by a Liberty or Bayliff of a Franchise, who had Retorna brevium, 1 Roll. rep. 119.

Upon a Fieri fac' against an Administrator, the Sheriff makes a Warrant to the Bayliff of a Franchise to execute it, and after the Bayliff is removed, and another Bayliff elected; and after the old Bayliff retorns in his own Name to the Sheriff, That the Administrator had not any Goods praeterquam, &c. which is false, and after the Sheriff makes retorn accordingly to the Court; yet no Action on the Case for this False Retorn lies against the Bayliff. For the Retorn ought to have been made of the new Bayliff, and so the Sheriff had accepted a Retorn from one as it were a meer stranger, and so void. And he ought to take Cognizance of the right Mini­sters of Law; and therefore the old Bayliff for this False retorn is not punishable by the Law, but the Sheriff, 1 Roll. Abridgm. 99. Palmer and Marsh.

If the Sheriff retorn Mandavi ballivo Liber­tatis, &c. qui mihi responsum dedit, &c. if the Matter of the Retorn be false, no Action lies against the Sheriff, but only against the Bayliff: For the Sheriff ought to accept the Retorn of the Bayliff, and not examine the reality of it, (if it be sufficient in Law) 1 Roll. Abr. 98, 99. Palmer and Marsh, Cro. El. 512. Palmer and Pot­ter.

If a Venire fac' comes to the Sheriff in a Against the Sheriff, for a Re­torn by one who is nor Bayliff of a Fran­chise. Quare impedit, and the Sheriff command the Bay­liff of the City of C. to retorn the Pannel, who does it accordingly, where he had not any War­rant to do it, not being Bayliff of a Franchise, whereby the Pannel is quasht. The Plaintiff for this default in the Sheriff, and for his Damages [Page 149] shall have an Action on the Case, 38 Assize 13.

The Sheriff upon a Fieri facias against J. S. Against the Sheriff, and not against the Bay­liff. makes a Warrant to J. S. to execute as his Bayliff, and he does it; and afterwards the Sheriff makes a False Retorn, ( viz.) that the Writ came Tar­dé, &c. by which he is a Trespasser ab initio, yet it amkes not the Bayliff a Trespasser, 2 Rol. Abr. 562. Parkes and Mosse.

It was the Opinion of all the Judges in the Case of Fawces and Cotton, That the Sheriffs sub­mission to a Fine, is no Conclusion to the parties grieved, to bring their Actian for the false Retorn of the Sheriff, if it were so, Sir Thomas Jones p. 39.

In retorn on Elegit, the Sheriff Retorns, That Case, and not Debt. he had appraised the Goods in specie to 40 l. and extended such Lands, and delivered them to the Plaintiff. Ubi revera he never delivered them to the Plaintiff. Action of Debt lies not in this Case, but Action on the Case; for it is no Debt in the hands of the Sheriff, Cro. Jac. 566. Coryton against Thomas.

And its not like to Pyke's Case, 14 Jac. which was, the Sheriff on a Scire fac' retorned, That he had sold the Goods for so much Money, and delivered the Money to the Plaintiff; and the Plaintiff thereupon averring that he had not the Money, maintained an Action of Debt: For there the Sheriff confessed by his Retorn, That he had sold the Goods, and delivered the Money; but here it is not retorned, that he medled with the Goods, or the value of them, so as there is not any Certainty to charge him, Pyke's Case, 14 Jac.

Where the Action is to be brought.

Action for a False Retorn may be brought in the County where this was, or in Middlesex where the Record is, Cro. Jac. 532. Parkhurst and Powell.

So Escape at D. in Wales, and the Retorn was Non est Inventus, and it was tryed at Westminster, the False Retorn being made at Westminster, which is the cause of the Action, 2 Keb. 362. Mancer and Smith.

If a Sheriff on Cap' Utlagat' will not arrest the party, but retorn Non est Inventus, an Action may be brought against him in the County where he received the Writ; or in Middlesex, where the Record of that False Retorn is, at Election, Hob. 209. Siderfin p. 218, 219. Russel's Case.

A Doubt was, Whether Action on the Case for a False retorn on Elegit lies in the County where the retorn of the Exigent was, i. e. in Middlesex, or where the Land lies? And the Court inclined. that it lay most properly in Middlesex, Winch. p. 100. Sheir against Sir Francis Glover.

One brings Debt against B. Sheriff of the County Palatine of Lancaster, and sues him to Outlawry on Mesn Process, and had a Capias directed to the Chancery of the County Palatine, who make a Precept to the Coroners of the County, being Six, to take his Body and have him before the Justices of the Court of Common Bench at VVestminster; one of the Coroners being in sight of him, and having a fair oppor­tunity to arrest him does it not, but they all retorn Non est inventus. The Plaintiff hereupon brings his Action against the Coroners in Mid­dlesex; [Page 151] And the Court inclined, that the Action is well brought in Middlesex; because the Plain­tiffs Damages arise here, by not having the Body here at the Day, Bulmer's Case Rep. and Dyer 159.

The Chancery retorns to the Court the same Coroner. Answer that the Coroners return to him, so that the False Retorn is the cause of prejudice, and the other things are but Arguments to prove it. And the Court conceived an Action would not lye against one Coroner, no more than against one Sheriff of London, York, &c. Mod. Rep. 198. Naylor and Sharpley.

Of Declarations in Actions for False Retorns.

In Pigot's Case it was alledged for Error that the Declaration was naught:

1. The Bond was made for 200 l. dared Process before the Bond made. 29 Aug. 13 Jac. and this was before the Bond made; yet being retornable in Michaelmas Term, and the Latitat upon it after the Bond, its sufficient to maintain the Action, and the Process always bears Teste the last day of the Term before.

2. The Declaration is, The Sheriffs Bayliffs Its not shewed the De­fendant did not appear. arrest the party, and the Sheriff falsly retorned Non est inventus. It was alledged for Error, that the Declaration was not good, because he doth not shew that the Bayliffs delivered the Bond to the Sheriff, which they had taken for his Appearance; nor is it shewed that the Defen­dant did not appear. Sed non allocatur. For these serve but for aggravation of Damages, and are supplied by the Verdict, Cro. Jac. 561. Pigot and Rogers.

Fieri fac' for Debt was delivered to the Sheriffs of N. who executed it, after which the Sheriffs were discharged of their Office, and new ones elected. The old Sheriffs redeliver to the party his Goods taken in Execution, and indorse Nulla Action against the old Sheriffs. bona on the Writ of Fieri fac', and deliver it to the new Sheriffs so Indorsed. And an Action on the Case was brought against the old Sheriffs for this False Retorn, and Judgment pro Quer'. And these Exceptions were taken:

1. The Plaintiff in his Declaration does not say, that the old Sheriffs did retorn Nulla bona, but only that they did indorse Nulla bona, which is no Retorn.

2. He saith not, they delivered this Writ thus indorsed to be retorned, i. e. by Inden­ture.

3. It appears not whether any Retorn of the Tho' it appear not that any retorn of the con­trary was made by the old Sheriffs. Writ were made by the old Sheriffs or the new. Per Glyn Chief Justice. He conceived it to be well, and according to the course in that kind. For the old Sheriffs to make the Retorn, and to deliver the Writ over by Indenture to the new Sheriffs, and here was a Verdict. And a Retorn is not properly a Retorn till it be filed here; yet it is the Retorn of the Sheriff in the County where he is Sheriff; and yet it seems Judgment was reversed. Quaere. Style p. 474. Toft and Day.

Action on the Case on a False Retorn of Non est inventus by the Sheriff of Galloway in Ireland. It was averred, that the Sheriff at the time of the delivery of the Capias had the person in Custody at Galloway in the City of Dublin, and the Action is brought in the County of the City. Per Sanders. On a Capias delivered to the Sheriff out of the County, he is not bound to hold him there. So upon a Latitat, which is no Warrant [Page 153] to the Sheriff, to take him but only in his Baily­wick. Per Cur'. This may be by Habeas corpus or Fresh Suit, and being after Verdict, that finds the False retorn (for the retorn was Non est inventus in balliva) and the Jury find that he was in balliva at the retorn of the Writ, the Court will presume him legally in Custody, 3 Keb. 557, 561, 600. Bradshaw and Andrews.

Plaintiff declares, he had prosecuted a Capias against Chapman, who was indebted to the Plaintiff in 100 l. and delivered it to the Sheriff at Newport P. and that the Sheriff postea & adtunc & ibidem potuisset arrestar' the said Chap­man; but that the Defendant machinans, to delay the Plaintiff, &c. arrestare the said Chapman, &c. adtunc & ibidem abstinuit & recusavit, and had falsly retorned Non est inventus. Defendant pleads Non culp', and Verdict pro Quer. Per Cur'. After Verdict the Declaration is good enought; and tho' potuisset arrestare, without shewing how, or that the Defendant was in view of Chapman, and potuisset denotes a possibility; and this is true if he were in the County, and the Sheriff is not bound to attend his Office in every particular case; yet it shall be intended such Matter was given in Evidence, by which it appeared to the Jury, that the Sheriff potuisset arrestare, and the Decla­ration quod recusavit doth imply Opportunity: But it was agreed to be good Cause of Demurrer, Sir Tho. Jones p. 40. Fish versus Aston Sheriff of Bedford.

Error brought by the Sheriff, upon a Judg­ment against him upon a Writ of Scire fac', for an ill Retorn of a Fieri fac', 2 Sand. 338.

Actions against the Sheriff for Non-feasance. For not retorning of Writs.

If a Capias issues against J. S. and the Sheriff doth not make any retorn upon the said Writ, he is a Trespasser ab initio, and false imprison­ment lies against him. 16 H. 7. 14. 3 H. 7. 36. 21 H. 6. 5. 5 Rep. Hoes Case.

Before the Stat. VV. 2. 19. Regularly for not retorning a Writ the Sheriff was amerced Quo­us (que), &c. but for a False Retorn or imbesilling the Writ, Action lay at Common Law. Co. 2 In­stit. 451. Rast. Entries 501, 626. Presidents of Actions on this Statute. This Statute prevents the Retorn of a Tarde, i. e. quod breve adeo tarde ve­nit, quod praeceptum Regis exequi non potuit.

It's a Question in Sir VVilliam Clarks Case if [...]up. utle­gat. Action on the Case lies against a Sheriff for not retorning a Cap. Utlegat. It seems it does, for the Party has loss by not retorning the Writ, tho' the Queen may amerce him for his Contempt. Cro. Eliz. p. 873. Sir VVill. Clark.

Action on the Case lies against a Sheriff for not Summons. retorning a Summons. 1 Leon. 146. Marsh and Astrey.

If a Capias be retorned out of an Inferior Inferiour Court. Court to an Officer of the Court to take J. S. and he took him accordingly, and does not retorn the Process, he is a Trespasser ab initio, for as much as he is the Officer that ought to retorn it, Bayliff er­rand or Servant not to be punished for not re­torn of the Sheriff. and he is a Sheriff within his jurisdiction. 2 Rol. Abr. 563. Kirk and Atkins.

If a Capias in Process be awarded to the She­riff, and he makes his Warrant to a Bayliff-er­rant, who is a sworn and known Bayliff within [Page 155] [...]he County to take him, and he does it ac­cordingly, if the Sheriff does not afterwards re­torn this Writ, it shall make him a. Trespasser ab initio, because he is but the Sheriffs Servant, and for this he ought to be subject to the wrong done to the party as his Master is, 20 H. 7. 13. 21 H. 7. 22. M. 14. Car. B. R. How and Stocken har. But if the Bayliff-errant, in that Case, re­torn the Body and the Warrant to the Sheriff, altho' the Sheriff doth not retorn the Writ, yet he is excused. And if the Sheriff upon such Pro­cess makes special Bayliffs, and they take the Party, and the Sheriff doth not retorn the Writ; altho' there is not any default in the Bayliffs, yet they are Trespasser, ab initio, because they are but Servants to the Sheriff and by his appoint­ment; but this seems a sorry reason: And I take it Girling and Allens Case is good Law. For tho' the Sheriff ought to retorn his Writ, other­wise his Justification in False Imprisonment is not good; yet it is not so with his Servant, for he has no means to inforce the Sheriff to make re­torn thereof; and if what he does is legal, it shall not be made illegal to him by the act or de­fault of another. Crok. Car. Gilling and Allen. 11 Car. B. R.

Upon a Capias in Process, if the Sheriff makes Where no default is in the Bay­liff of a Franchise, he is excu­sed. his Warrant to a Bayliff of a Franchise to execute it, who does it accordingly, and makes retorn of the Body and Warrant to the Sheriff, and the Sheriff after does not retorn the Writ, yet this shall not make the Sheriff a Trespasser ab initio, because he had done his duty, and no default is in him, and he is the Officer of the Franchise, and not of the Sheriff. 8 Ed. 417. b. 21 H. 7. 22.

The Court was moved, that the Sheriff may Sheriff not to file the Retorn, de­pending Action on the Case a­gainst him. not be admitted to file the retorn of a Writ, because action on the Case was depending against him for not retorning it, because then the Action would abate, and it was granted by Rolls. Stiles 408.

Laying the Action and Declaration for not Retorning.

In a Writ of Entry sur disseisin, the Land ly­ing in the County of H. if the Plaintiff deliver the Writ of Summons to the Sheriff of H. in London; and after the Sheriff summons the De­fendant upon the Land, and after doth not re­torn the Writ; for which Action on the Case is brought in London, where the Writ was deliver­ed to him, and the Defendant pleads he did not summon him, &c. upon which they are at issue, this may be tried in London. 2 Roll. Abr. 807. Rash and Astrey.

Action on the Case against an Undersheriff, and declares, whereas the Plaintiff had brought a Writ of Entry against H. C. and delivered it to the Undersheriff to be executed in forma Ju­ris, and gave him two shillings for the executing of it, and that at such a day he caused the said H. C. to be summoned, yet falso, &c. he did not retorn the Writ of Summons at the day of the retorn. Cro. Eliz. 175. Marsh and Astrey. and p. 397. Collet and Marsh.

It was moved in Arrest of Judgment, for that It is not averred that the Officer continued in his Office. it is not averred he was Undersheriff, and con­tinued in in his Office at the day of the Retorn; for otherwise the Action lies not against him, sed non allocatur. 1 Leon. 146. Mesme Case.

It shall be intended that he continued in his Office, for he was Undersheriff when the Writ was delivered to him; and 'tis alledged that he caused Summons to be made, and did not retorn it at the day, by which it shall be intended, that the Authority was in him. The Declara­tion was, that the said Astrey (Defendant) in­tendens & machinans ipsum querentem in Action [...] sua praed' prosequend' impedire, &c. did not re­torn the Summons, but saith not tunc existen' Undersheriff, yet it's good; and if the Defen­dant were not Undersheriff, the same shall come in of the other side.

Where a man may have a Traverse, or Aver against the Sheriffs Retorn, and where not.

It is commonly said in our Books, that no Averment shall be against the Sheriffs Retorn which is of Record, and therefore in a Redissei­sin it cannot be assigned for Error that the She­riff non accessit ad tenementa, as he hath retorned, for that is against his Retorn, which is record­ed. Gaudy in Collet and Marshes Case. Leon. 183. Holl [...]ds Case.

Gaudy in Collet and Marsh's Case, 1 Leon. 397: held, against any thing done or retorned by a Sheriff, as an Officer, there may be an aver­ment; as an averment against a Bishops Certifi­cate; but the other Justices contra: For the Justi­ces ought to credit the Officers. Error because the Defendant was not summoned in a Praecipe quod reddat, at the Church door, according to the Stat. 31 Eliz. c. 3. and by reason of the de­fault a grand cape was awarded, and the Sheriff retorned him summoned at the Church Door. [Page 158] Per Cur', he shall not have this Averment, but his Action of Deceipt against the Sheriff, Cro. Eliz. Action sur Deceipt, but not on an Aver­ment. 397. Collet and Marsh's Case, so Cro. El. 9. 10. Clay's Case. If in Partition the Sheriff Retorn, he was there in proper person, and this Retorn be received, and the Writ filed, then the Court cannot examine it; for the Retorn is good, and the party can have no Averment against the Re­torn, nor Error. The Jury appeared on a Trial, and the Defendant would have challenged the Array ore tenus; because it was Retorned by one S—Sheriff, two days after he had received a Writ of Discharge. Per Cur', He can­not Challenge it for that Cause; because it would be a direct Averment against the Record, for it was Retorned by him as Sheriff, and the Retorn accepted, Cro. El. 369. Hore and Broom.

In the Lady Russel and Wood's Case, Cro. El. 780. the Kings-Bench would suffer a Traverse to a Sheriff's Retorn, because it is False. As 4 El. Dyer 412. and in the Common-Bench is usual, and Presidents ordered to be searched.

Sed distinguendum est. And I shall shew in what Cases one may aver against the Retorn of the Sheriff.

A man may aver against the Retorn of the Matter Collateral. Sheriff, if the Retorn be a matter Collateral.

As if the Sheriff upon a Capias retorn a Rescous, there may be an Averment against it, Owen 132.

So Winch. p. 100. in another Action Averment may be against the Retorn of the Sheriff, tho' In another Action. not in the same Action; as 5 Ed. 4. for False retorn. VVinch. p. 100. Stiles versus Sir Francis Glover.

If the Retorn of the Sheriff concern my In­heritance, Retorn concerns [...] mans In­heritance. I shall have averment against it. 2 Rolls Rep. 54.

In a Praecipe quod reddat, at the Summons re­torned, he may say that his name is T. B. and that he was summoned by the name of J. B. because otherwise he shall lose his Land by de­fault, 19 H. 6. 10. b.

If the Sheriff retorn a man outlawed of In Outlaw­ry for Felony. Felony, he may aver against this Retorn, that he came in at the 5th County, and tendred Sure­ties, and so was Outlawed; for this is in case of Life and Member, 1 Ed. 3. 24. b.

On Scire fac' against the Tertenants, the Tertenants Defendant after the Retorn of the Sheriff pleads, that he is not Tertenant. The Plaintiff demurs; because, as Cro. El. 872. Blood's Case, he is estopped by the Sheriffs Retorn. And in Rastall's Entries, Tertenancy is traversed: And 4 El. Dyer 212. the Retorn of a Capias is traversed as to Rescue. And Cro. El. 859. its agreed, that Waste is tra­versable Waste. on the Retorn of the Sheriff. But per Cur' a general Non tenure by Lessee for years is pleadable; for else his possession would be disturbed by Ejectment, Cro. El. 872. Co. Ent. 620, 622. 3. 4. Cro. El. 859. 3 Keb. 170. VVitrony versus Blany.

So per VVindham. In some Cases one may Diversity between a general Nontenure, and a special Nontenure, pleaded. plead and aver against the retorn of the Sheriff, as to a Scire facias, that there were other Ter­tenants not named; for he is not Omniscient. And tho' the Sheriff retorn that such are Ter­tenants, yet that shall not conclude the Defen­dant, but that he may say another is Tertenant of parcel, who is not warned. But Rolls is express, that Nontenure cannot be pleaded in [...] [...]gainst the Retorn of the Sheriff, 1 Keb. 55. [...] Cro. Jac. 50. Mitchell's Case, 2 Rolls [...] [...]

In Waste, if the Officer retorn, That the Jury Waste. View. had the View; yet if the contrary appear by Examination at the Trial, the Retorn shall not conclude any of the parties, 2 Sand. 255. Green and Cole.

Tho' a man may not aver contrary to the Averment, that he was not Sheriff. Sheriffs Retorn; yet he may say, he which had Indorsed his Name on the Backside of the Writ was not Sheriff, because by the Common Law, until the Stat. of Ed. 2. c. no Sheriff or Officer used to put their Names to the Retorns; and this Averment, That he that made the Re­torn is no true Officer, is not taken away by the Statute, Yelv. p. 34. Arundell's Case.

If Bayliffs of Franchises that have Retorns of Averment against false Re­torns of Bayliffs of Fran­chises. Writs, make a False retorn, the party shall have Averment against it, as well of too little Issues as of other things, as well as he shall have against the Sheriff; but all the punishment shall be upon the Bayliffs, Dr. & Stud. 2d Book 42. c.

The Sheriff retorns a Rescous on Mean pro­cess to a Writ of Priviledge, and Attachment awarded nisi causa. The Preignotaries affirmed that the parties might traverse the Retorn; but Tota Curia of Opinion to the contrary, Sir Tho. Jones p. 39. Fawcett and Cotton.

CHAP. X.

Of Venire facias, Habeas Corpora Juratorum, and Distringas. VVhat Retorns shall be good on a Venire, &c. or not. Amendments of Venire's, &c. Of Tales.

‘Venire fac', Habeas corpora & Distringas.’

Of the Statutes of Jeofails.

THe principal Statutes of Jeofails are 8 H. 6. c. 12, &c. 15. 32 H. 8. c. 30. 18 El. c. 14. 21 Jac. c. 13. 16 & 17 Car. 2. c. 8.

8 H. 6. c. 12. extends to any Record, Specialty, Copy, &c. 2. Parol. 3. Plea. 4. Warrant of Attorney. 5. Writ Original and Judicial. 6. Pannel. 7: Retorn. But by it misprision of Clarks are only amendable: But it extends not to an Insufficient Trial, where the Venue is mistaken. It extends not to a Retorn of a Sheriff, where it should be by a Coroner. Nor to a Trial by one not retorned in the Venire fac'. Nor to a Retorn of a Venire fac' without the Name of the Sheriff. Now these Misprisi­ons are not remedied by 8 H. 6. c. 2. 32 H. 8. nor 18 El. c. 4. (Viz.) Where the Retorn is by the Sheriff, where it ought to be by the Coroner, when the Sheriff does not put his Name to the Retorn of the Jury; when no Retorn is on the Venire fac'; nor when one gives a Verdict, who is not retorned; nor to Insufficient Trials, where the Venue is mistaken, 8 Rep. Blackamore's Case.

By the Stat. 21 Jac. c. 13. After Verdict Judg­ment shall not be arrested, for that the Venire fac', Hab. corpora, or Distringas, was awarded to a wrong Officer, upon any insufficient Suggestion, or that the Venue was in some part misawarded, or issued out of more or fewer places than it ought to be, so as some one place be right named. Or for misnaming any of the Jurors either in the Sir­name, or any addition in any of the Writs or Retorns thereof, so as constat de persona. Or for a want of retorn of any of the said Writs, so as a Pannel be retorned and annexed thereunto; or for that the Officer's Name is not set to the Retorn.

No Acts of Jeofails extend to Appeals or Pleas of the Crown; nor to Actions or Informations on Penal Laws, except in 16 & 17 Car. 2. other than concerning Customs, Subsidies of Tonnage and Poundage, to which it extends not. But the Stat. 21 Jac. helps not, if the Christian Name of a Juror be mistaken, and the Law notwithstanding Codwell's Case. 5 Rep. Roll. 176. and Cro. Jac. 458. Goddard's Case remains as it was.

But its amendable per Stat. 18 Eliz. as a dis­continuance of Process, as Teppet on the Venire, and Tippet on the Distringas was amended. So Samuel in the Venire, and Daniel in the Nomina Jurator'.

If there be no Venue, its aided by 16 & 17 Car. 2. after a Verdict, if the Cause be tryed in the proper County where the Action is laid, 2 Sand. 227. Perry's Case in Skinner's Case. Vide infra.

If the Plaintiff deliver the Venire to the Sheriff Venire with [...] Proviso. Tardè, so late that he cannot serve it, the Defen­dant shall have a Writ with a Proviso; but at the same time the Plaintiff may have another Writ, and the Sheriff may not retorn which [Page 163] of them he pleaseth, the Proviso ought to be quando duo brevia sunt in eodem gradu & quali­tate, 8 H. 6. 6.

If the default be in the Plaintiff after Issue in the prosecuting of the Venire facias, then the Defendant may have a Venire facias with a Pro­viso; but not an Habeas corpus with a Proviso, until the Plaintiff have made a default in the same Writ. For he ought only to have the same Process with a Proviso, in which there was a default of the Plaintiff first; and therefore tho' the Defendant had a Venire facias with a Proviso, upon a default of the Plaintiff, yet he cannot have a Nisi prius by Proviso, without another default of the Plaintiff.

Note. The Venire ought to be delivered to the When th [...] Venire ought to be deliver­ed to the Sheriff. Sheriff four days before the Retorn of it, if the Jury dwell forty Miles off, and eight days if they dwell further from the place where the Trial is to be, Pract. Reg. 87, 333.

The Name of the Sheriff to the Distringas and Tales, are of necessity; and to the retorn of the Habeas [...]orpora by the Statute of York, 12 Ed. 2. c. 5. and these are not holpen by any of the Statutes of Jeofails, Cro. El. 310. Steyner and James, Cro. Jac. 188. Holdswrith's Case, Cro. El. 509. Blod­well's Case; 482. Weare's Case.

What Retorn shall be good in a Venire, or not; and what shall be Error, and what amendable.

Insufficient Retorns are aided by the Statute Omission. of Jeofails: As upon the retorn of the Venire fac' there wanted these words, Quilibet Jurator' per Legios. This is not, as if there was no Re­torn at all. And per Cur', its an Insufficient [Page 164] retorn which is aided, and it was awarded to be amended; for the omission▪ of Pledges is but Matter of Form, and not like to Dr. Hussey's Case, where there was a want of an Original. And so in 2 Roll. Rep. 87. the Sheriff retorns a Venire fac', (viz.) Executio istius brevis, &c. and the Pannel of the Jurors was filed to it; but under the Names of the Jurors he omitted to file the Pledges, Cro. Jac. Moor and Blackwell, 2 Roll. Rep. 87.

In the Writ of Venire fac' awarded to the Sheriff of Somerset the word ( Vicecomiti) was omitted; yet he retorned the Pannel, and his Name was endorsed. Per Cur', it is Error; but because upon the Roll it was Vic' Somerset, it was amended, Cro. Car. 595. Sloper and Child.

Venire fac' was album breve (i. e.) no Name of the Sheriff was endorsed. It was denied to be amended, 1 Brownl. 43. Bullen and Jarvis.

The retorn of a Venire by one Sheriff of London, is ill, and not helped by the Stat. 21 Jac. But a Certiorari Coronatoribus, where there is but one, is well enough, Hob. 70. 1 Keb. The King against Percival.

A Venire facias was awarded in the time of Variance. Queen Elizabeth▪ and a Distringas with Nisi prius in the time of King James, reciting quod distrin­gat Juratores nuper summonit' in Curia nostra, whereas in truth there had not been any Sum­mons in Curia of the King, but of the Queen only, and Trial and Judgment thereupon; and it was Reversed for this Error. For this Distrin­gas Distringas, Nisi prius. with Nisi prius is a special Authority to the Justices, who being Justices by the special Com­mission, and not having Authority to take any Jury but such as was summoned in Curia Regis, there being none such, the Trial by the Jury was Erroneous, Goodwin's Case, cited in Comyn's [Page 165] Case; Cro. Jac. 161. But in the principal Case, which was Error of a Judgment in Durham, such Case was amended; because the Justices of Dur­ham Amend­ment in Durham, and why. are Original Judges of the whole Record, and had the Record before them at the time of the Trial, and the Writ being variant might be amended there, Cro. Jac. 161. Goodwin's Case.

The Venire was between Heath and J. T. and the Sheriff retorned it to be between Heath and W. T. This was a Mis-tryal, and Judgment shall not be for the Plaintiff, Winch. p. 73. Trist's Case.

Venire fac' bears Teste on a Sunday; it was amended after Trial, Short and Arundel's Case.

A Venire fac' bore Teste out of Term, and made Amend­ment by the Roll. to accord with the Roll, Gonnel's Case; and a Distringas was amended a long time after the Trial; yet, the Roll being good, it was amended, Cro. Jac. 161. Comyn's Case.

Venire awarded, Vicecomitibus Lond' praecipimus sibi, was amended after Verdict. So if after the Hebeas ibi hoc breve, if the nomina Jurator' be left out, Cro. El. 543. Roll. 201.

In the award of a Venire fac' super quo praecep­tum fuit Vicecomiti Com', &c. it is Error; it ought to have been Praeceptum est, 2 Sand. 393.

The Nisi prius Roll is, That Challenge being Amend­ment. made to the Sheriff after Issue and Confessed, a Venire fac' was awarded to the Coroners; but the Roll of Nisi prius was, that the Venire fac' was awarded to the Sheriff. Per Cur', This Roll of Nisi prius being a Misprision and which ought to be warranted by the Record, ought to be amended, Cro. Jac'. 353. Sir Ed. Musgrave, Winch. Rep. p. 73.

If the Sheriff retorn, That there are no Free­holders Where a Venire fac' shall be of the Issue next [...]ning. of the Visne, or if the Visne be where the Kings Writ runs not; as in the Cinque Ports, &c. or in a place where the men are priviledged from serving on Juries out of that place, as the Isle of [...]ly, &c. the Plaintiff may pray a Venire fac' of the Visne next adjoyning; and if the Visne be in Wales (where the Kings Writ runs not) the Venire fac' shall be directed to the Sheriff of the next English County, to cause the Jury to come de propinquiore Visne of his County to the Visne in Wales adjoyning; for the Court shall not be ousted of the Plea, Fitzh. Abr. tit. Visne 8. Jurisdict. 24.

If the words ( quorum quilibet habeat) be left out, or duodecim, or qui nulla affinitate attingunt; these are amendable, as Mistakes of the Clerks, Roll. 204, 205.

Venire fac' was in this manner, Jacob', &c. Vicecomiti salutem, and saith not o [...] what Coun­ty; it was amended, Cro. Jac. 78. Low and La­cock.

Venire fac' what Retornable coram Majore & Ballivis de Exceter, without saying in Curia vel hic. Its Error; because it may be Retorned in a Tavern, Siderfin p 77. Davies and Pitts.

If a Venire fac' be quasht for Consanguinity to the Sheriff, a Venire fac' de novo shall be granted to the Coroners, 2 Roll. Abr. 720.

The awarding of a New Venire fac' to the Sheriff, where the Veniri fac' was quasht for Favour in the Under-sheriff, is not Error, 1 Roll. Rep. 272.

A Venire fac' is to the Coroners, without any Process directed to a wrong Office [...], not amend­able. Suggestion at all of any Challenge to the Sheriff. This is not aided by 21 Jac. c. 13. nor by the 16 & 17 Car. 2. c. 8. and the Court cannot amend this direction of Process to a wrong Officer; [Page 167] and the Court cannot examine the Truth with­out a Suggestion. And Judgment was arrested, 3 Keb. 624. Hancock and Weyman.

Venue awarded to the Coroners, and Tales to the Sheriff, is Erroneous, Cro. El. 574. Morgan and Wye.

If a Venire fac' be directed to the Coroners, all the Coroners ought to joyn in the Retorn, and so both of the Sheriffs of London ought to joyn, or else the Retorn is not good, Hobart 97.

The Sheriff need not retorn the Names of all the 24 on the Distringas, Hab' corpora, or Venire fac', nor affix them to the said Writs, 1 Keb. 418. Coldham and Loe.

And it was agreed per Cur', 2 Roll. Rep. 111. Distriugas amended per le Vic'. because the Venire fac' was good and well Re­torned, the Distringas shall be awarded by the Sheriff, 2 Roll. Rep. 111.

If a Distringas sicut alias issue against the Jury, and no other Distringas was awarded against them before, by which the supposal of the Writ is false, yet this is not Error; for the Venire fac' serves instead of a Distringas. 2 Roll. Rep. 133.

The Pannel of the Hab. corpora was amended upon the Sheriffs Oath. And where the Distrngas was blank, yet the Venire fac' was well retorned, Cro. Jac. 483. Church and Wright.

A contrary Distringas is by the Sheriff put to the right Pannel and Tried▪ The Trial was held good, so tho' no Distringas had been; for as this is, there is no Writ between the parties, 3 Bulstr. 180. Fowkes and Child.

Tales not retorned by the Sheriff or his Deputy, or any sworn Officer; but by a Clerk of the Court, by general appointment of the Sheriff its well enough, and the Sheriff is answerable for it, 1 Keb. 357. Lestrange and Temple.

Array retorned by the Sheriff, after his Dis­charge, is not good, Cro. El. 369. Hore and Broom.

Presidents,

Distringas Juratores on the Hustings; vid. the Form, 2 Sand. 240.

Retorn' de Venire fac' Jur'

Executio istius brevis patet in quadam pannella hui [...] brevi annex'. A. B. Armig. Vic'.

Nomina Jurator' inter A. B. Quer' & C. D. Def. in placito Transgress.

Then Write down the Names of the 24 Jurors thus:

  • A. W. de E gen' & sic ad 24.
  • F. C. de W. Yeoman & sic ad 24.
  • Quilibet Jurator' praedictor' per se separatim Manucapt',
  • Or, Attachiatus est per pleg'.
    • J. D.
    • R. R.
  • A. B. Armig' Vic'.

The like in the Habeas corpora.

Only in the Retorn of this Writ the Sheriff must retorn Issues on every person,

Exitus eorum cujuslibet—x s. or more, Dalt. c. 58

CHAP. XI.

Of Habeas Corpus, and Retorns upon it. Of Ha­beas Corpus. The several sorts, and the conse­quence thereof. Of the Retorns of Habeas Cor­pus by the Sheriff, &c. and in respect of the Courts commanding. Rules on Habeas Corpus, who to pay the Charges. The Forms of the Retorns.

AN Habeas Corpus is either ad subjiciend', which Habeas Corpus ad subjiciend. Habeas Corpus ad respondend' recipiend, &c. is granted on the Criminal side, or an Habeas Corpus ad respondend' recipiend' or faciend' granted on the Pleas side; for so the Court of the Kings Bench is divided in the practise of it, (that is to say,) into Criminal Causes between the King and the Party, and Civil Causes be­tween Subject and Subject.

Now an Habeas Corpus ad respondend' is, when any one is Imprisoned at the Suit of another upon a Legal Process in the Fleet, or any other Pri­son except the Kings Bench Prison, and a third person would Sue that Prisoner in this Court ( B. R.) and cannot because he is not in Custody of the Marshal of this Court, there he may have an Habeas Corpus to remove the Prisoner out of the Prison where he is into this Court, to an­swer to his Action here. This is called a Habeas Corpus cum causa; and an Habeas Corpus cum causa doth remove the Prisoner for whom it is gran­ted, and all the Causes which are then depen­ding against; him for upon Habeas Corpus to an Inferiour Court, to remove Corpus cum causa, they ought to return all▪ the Causes that are depen­ding there concerning the Party that hath the Habeas Corpus, (if any of the Causes depending be above 5 l.) Stiles Rep. 150.

When an Habeas Corpus is Awarded and Bail taken though they be not Filed, yet presently the Prisoner is discharged, and his Sureties also in the Inferiour Court. Cro. Jac. 203. Franley and Basset.

One was in Execution in the Fleet, for a Debt recovered against him in B. R. he being before condemned in the Kings Bench, for another Debt, was by Habeas Corpus cum causa removed into the Kings Bench; per Cur. in this Case he may acknowledge satisfaction for both Debts in B. R. he being in the Custody of the Marshal for both Debts. If the Marshal suffer him to Escape, he shall be charged for both the Debts. Dyer 152, 307.

As for Retorns of Habeas Corpus.

What shall be a good Retorn on Habeas Corpus, or Corpus cum causa.

An Habeas Corpus to remove one committed for Debt from one Prison to another, may be granted Retornable immediate, or indilate, for this is only an Habeas Corpus ad Recipiend' in the nature of it.

An Habeas Corpus is not a Record till it be Amend­ment. Retorned and Filed, and then it cannot be amended, but it may be amended before its Filed.

Whatsoever person, or by what means soever Conclusion of the Re­torn. he was committed, the conclusion of the Retorn ought to be Corpus tamen ejus paratum habo; yet it cannot always be so. 1 Leon. p. 70.

An Habeas Corpus ad subjiciend' is always in­tended Retorn by the Chan­cellor of Durham. to him that has the Body, tho' ad faciend' may be circular, as an Habeas Corpus was dire­cted to the Chancellor of Durham, that he make a Precept to the Sheriff, to have the Body co­ram [Page 171] nobis apud Westm. The Retorn is, that the Chancellor issued a Precept to the Sheriff to return his Body before him; and that the Sheriff returned paratum habet, and its not said the Chancellor had him here, which is ill per Cur. for it should be cujus Corpus paratum habeo, in this Court. 3 Keb. 229. the King against Pell and Offley.

Habeas Corpus was directed to the Steward and Cause of commit­ment shewed. Marshal of the Marshalsea for H. the Marshal Retorns the said H. was committed to the Cu­stody, per mandatum Francisci Walsingham Mil' principalis Secretar & unius de privat' Concilio Do­mini Regis. This is insufficient, because the Cause of Commitment is not set down in the Retorn; Then it was amended and Retorned in this manner— ex sententia & mandato totius Concilij privati Domini Regis ità qd' ejus corpus habere non possumus. This per Cur' is in sufficient also; he ought to have concluded Corpus ejus tamen parat' habeo.

Note, Where the Party is committed by the whole Councel, no cause of the Committment need to be shewed. 1 Leon. p. 70.

On Latitat the Sheriff Retorned, that he had By Habeas Corpus to bring into Chancery. Arrested the Defendant, and that such a day, and before the Retorn of the Latitat, Habeas Corpus was to bring the Body into Chancery, and there the Prisoner was Discharged; the Retorn is good, for the Sheriff is bound to obey the Kings Writs, and he cannot compel the Parties to put in Sureties here in B. R. But it was ill done of the Master of the Rolls to Discharge him. Per Curiam, we have oftentimes persons here up­on Habeas Corpus, who are also Arrested by Process out of the Exchequer, or of the Common Pleas; but we will not Discharge them before they have found Sureties for their appearance, [Page 172] and we cannot punish the Sheriff, for the Habeas Corpus was first retornable before the Latitat. But because the Retorn was à custodia nostra ex­oneratus fuit, which might be intended as to the Cause in Chancery only, and not for the Cause here, for he hath not alledged, that he was committed to any other in Custody; the She­riff was to amend his Retorn. 1 Leon. 145. Cary Amend­ment. and Dennis.

A Retorn of Habeas Corpus by the Warden of the Fleet, was propter contemptum extra Cur' Can­cellariae. Its not good, 1 Rolls Rep. 92.

General Directions for Writs of Habeas Corpus, Error or Priviledge, vid. Compleat Solicitor 106, and other Manuals.

On Habeas Corpus the Sheriff Retorns, that the That the Justices commit­ted him for a Fine. Justices of Peace committed the Plaintiff for a Fine on Contempt, for which the Court award­ed him to remain in Prison till payment. Sider­fin p. 144. the King versus Mayo.

The Retorn on Habeas Corpus was a Prote­ction. Protection. 1 Leon. p. 70. Searchers Case.

Note, The Retorn of an Habeas Corpus ought Retorn to be Writ on Parch­ment. to be Written in Parchment, and not on Pa­per; for the Retorn is to be Filed, and made a Record of Court, and all Records are to be Written on Parchment: And therefore, after the Retorn is Read and Filed in Court it cannot be amended: But in Hob. p. 113. An Habeas Cor­pus was Retorned without the Sirname of the Sheriff, and after Verdict amended.

It is agreed, The Retorn of an Habeas Corpus Amend­ment. Good to common intent. need not be so punctual as a Plea, because not made by Persons of such Learning as Pleas are; but if they be good to common intent and sub­stance, its enough.

Upon Habeas Corpus granted by the Kings Rule to bring in the Body. Bench to the Warden of the Fleet, to have here in Court the Body of D. W. the same Retorn­able at a day certain; at which day the Warden of the Fleet did refuse to make his Retorn, and to bring in the Body. And the Court entred a Rule to bring in the Body of B. W. the next day Sub Poena 20 l. and so are all Presidents of Felony and Treason.

Note, If it appear that the Committment is good, and there is good Cause; the Court re­mands the Prisoner; if it is not good, they Dis­charge him, if it be doubtful they Bail him.

The Sheriff may suggest, that the Party will Who to pay the Charges of the Retorn. not pay his Charges of Retorn of Habeas Corpus, ad faciend' & recipiend', which is at the Suit of the Party. But contra in Habeas Corpus, ad faci­end' & subjiciend', which is at the Suit of the King, he must Retorn at his Peril. 1 Keb. 272, 280. the King versus Armiger.

And on Habeas Corpus to remove any Prisoner, the Sheriff must Retorn the Writ, and the Court will allow his Charges here. So in the Case of the Steward of—

Upon Habeas Corpus, the Officer ought to bring the Prisoner to the Court, and the Court shall tax Charges and compel payment, if the Officer and Prisoner, or Plaintiff cannot agree, or payment be not made according to the Agreement. Sir Tho. Jones p. 178.

Error on a Scire fac', on the Sheriffs Retorn being an Original Suit, lies not in the Exchequer Chamber; but Error on Scire fac' Quare Execu­tionem non, hath been constantly allowed to lie there. 2 Keb. 833. Jones and Anderson.

The Form of the Retorn.

Languidus,

Detent' in Prisona, attamen Corpus ejus, &c. The Causes of the Caption and Detention Re­torned. vide Dalton cap. 63. that he was taken in Execution by the late Sheriff, &c. that he was Imprisoned by a Justice of Peace his Warrant.

Retorn of a Certiorari per Viscount.

The Sheriffs of London appeared in Court in their proper person, upon a Rule of Court, to shew Cause why they did not grant out Execu­tion, upon a Judgment given in their Court, or else to make a sufficient Retorn of a Certiorari directed to them, because they had made three insufficient Retorns. Stiles p. 444.

A Certiorari was directed to the Sheriff to certifie, whether the Conisor in a Recognizance had an Heir. Jones p. 319.

CHAP. XII.

How many sorts of Juries. Of Retorns, and by whom Retorned; what manner of persons shall not be Retorned on Juries, and how they shall be Discharged. Where, when, and how persons ex­empt shall have Action against the Sheriff for Impannelling them. Of returning trop petit Is­sues. Of levying the Issues. Of other Erroneous proceedings, and misdemeanors of Sheriffs about Jurors. What Estate every Juror must have by the late Statute of 4 & 5 W. & M. Of Chal­lenges, The several sorts and causes of Challeng, and what are good or not, and when to be taken.

Of Enquiry. Of Tryals betwixt Party and Party.

Jurors are of two Sorts.

Juries to Enquire, are grand Juries at Assizes, or the Quarter Sessions. So Juries Retorned before Justices of Peace, to enquire of Riots, Forcible Entries, and Juries Retorn­ed before Commissioners of Sewers, or upon the Statute of Bankrupts, Coroners, &c. and Inquisitions taken before the Sheriff, and all these the Sheriff is to Summon (except Bank­rupts.) Qu.

Now upon every Tryal in personal Actions the Sheriff must Retorn two Hundredors at least. Cok. Litt. 1 25, 158.

As for the number of Jurors Retorned, vid. Dalton 86.

Retorn of Jurors.

If it be conceived an indifferent Jury will Jury Re­torned by the Secon­dary. not [...]e Retorned in the Country, the Court on motion will order the Sheriff to attend the Se­condary of the Office with the Book of his Freeholders, to have an indifferent one Retorn­ed, Pract. Reg. 163. So it was done in Pooles and Markham Case, Stiles 477. because the Plaintiff in a former Tryal between the Parties had Fea­sted four of the Jury, and had Feasted some of the Jury that were Retorned upon that Tryal; and the like was done in Coxes Case, 15 & 16 Car. 2. B. R. because Cox who was Intitled to the Reversion, had forbid Rent to be paid by the Tenants, and took on him the defence of the Ejectment brought against the Tenants, was of Kindred to the Sheriff and Undersheriff, and Trustee for them: But in another Cause, 17 Car. 2 B. R. The Court on Certificate of a Judge, that Verdict was given contrary to Evidence, would not allow, that the Sheriff should bring in the Book of Freeholders to the Secondary for the ill Example; but ordered the Sheriff should Retorn a good Jury in the new Tryal.

Upon motion that the Cause to be Tryed at the Bar is of great consequence, the Court will make a Rule for the Sheriff to Retorn 48 Jurors upon the Jury. Pract. Reg. 163.

When a Tryal is to be for a thing which con­cerns Who to Retorn the Jury. the Undersheriff, there the High Sheriff shall Retorn the Jury; aliter, if the Tryal con­cerns the High Sheriff, the Undersheriff shall not Retorn the Jury, but the Coroners. Pract. Reg. 164.

What manner of persons shall not be Impanelled on 8 Rep. 5. 3. 6 Rep. 108. 9 Rep. 49. Juries, and how they shall be Discharged, and where they shall have Actions against the Sheriff for Impannelling of them.

The Sheriff ought not to Retorn Priviledge, Exemption. to be exempt from Juries; but he ought to Sum­mon, and shall not be liable to an Action. Siderfin p. 243. The King and Percival, the Case was, Venire fac' was awarded to the Sheriff of the City and County of Canterbury, to Retorn a Jury here at the Bar, and upon the Distringas the Sheriff Retorns this to be an Antient City and County, and that the King had granted to them an Exemption, not to serve in any Jury out of their City, except in Cases of High Treason; and by express words, that they should not serve coram ipso Rege. Per Cur'.

First, The Retorn is ill: Because, if it were in the power of the Sheriff to Retorn Priviledge, he cannot do this upon the Distringas or Habeas Corpus, as he did here; because by the Retorn­ing of the Venire. (viz.) That there are 24 prob' & Legales homines he had concluded himself, there being also Pledges upon every such Retorn.

Secondly, That the Sheriff may not Retorn so Priviledge of Exemp­tion, when to be clai [...] ed. at any time, but ought to Retorn them Sum­moned, and the Parties ought to come here; and then every person who had cause of Privi­ledge ought to calim here in person, and not the Sheriff for them. More 883; 30. Wallers Case, Siderfin 293. The King and Percival. The Court awarded an alias Distringas, in regard the Sheriff cannot vary from the first Venire Retorned; but must have the same Men, Keb. 867. mesme Case. And no Action lies against the Sheriff, upon their Delivery of the Writ of Exemption, Har­dress. Rep. 389. mesme Case.

But in the Town of Darby, and Foxleys Case, Action, on the Case against the Sheriff for Retorning one exempt 1 Rol. Rep. 119. Action on the Case adjudged to lie against the Sheriff, for Retorning one of a Jury, who lived in a place which his exempt, and Co. Mag' chap. 382, 130, 447, 488, 461. Action, on the Case lies against the Sheriff, for Retorning a person exempt of a Jury.

The Sheriff must not Retorn magis remotos, minus What Ju­rors the Sheriff must Re­torn. sufficientes & magis suspectos, by the Statute W. 2. chap. 38. and if he do, the Plaintiff or Deman­dant shall recover Damages by the Statute, if he be delayed, and the Defendant, if he lose his Land, and Articuli super chartas gives double Damages to the Demandant.

The Sheriff by Statute W. 2. c. 38. must not Retorn Men, decrepit senes ultra 70 annos, homi­nos non in patria commorantes. This Statute is a direct Prohibition in it self, and therefore the Party grieved may have Action on the Act a­gainst the Sheriff, without giving notice of Sick­ness, Notice. or Non-commorancy; yet the use is to Sue out a Writ grounded on this Statute, that he Retorn them not, and notice by word is good, if notice were requisite, Co. 2 Inst. 477.

Peers of Parliament not to be Impannelled, Remedy for undue Retorns. Who is the party grie­ved that shall have his Action. nor Tenants in Antient Demesne.

Where the Demandant or Plaintiff is delayed of his Suit, by such Retorn of the Sheriff, as magis remotos, he shall by the Statute recover Damages against him, or where the Defen­dant, after he has lost his Land by the Oath of them so Retorned contrary to the Form of the Statute; and after he doth convict them in an Attaint and so is restored, he may then have his Action on this Statute for his Damages, 2 Inst. 448. sur Stat. W. 2. c. 38.

If one dwell in Middlesex, and had Freehold in the County of York over 40 l. the Sheriff of York may not Summon him to Middlesex, to Try a Cause at the Bar in Westminster for Land in Yorkshire, W. 2. c. 42. 1 Rol. Rep. 163.

In a Writ of Right or any other Writ, a Baron Peer. of the Realm may excuse himself.

Action on the Statute, W. 2. c. 8. for Re­torning Men more remote or suspected, Count and Bar inde. Dr. Bonhams Case. 8 Rep. 118.

Upon a Tryal between a Peer and another, Peer. the Sheriff must retorn a Knight; but if he do not, and the Peer doth not challenge the Array, but the Jury give a Verdict, he shall not have advantage of this afterwards, Lord Powes and Kertman P. 9 Car.

A Jury was Empannelled of the Town of Southampton, and called to the Bar and made de­fault, and the Men of that Town shewed to the Court a Grant made to the Inhabitants of that Town, that no Retorn should be made of the Men of that Town to be of any Jury, and prayed the allowance of their Charter; and the Court appointed them to plead their Charter, and so they did, 1 Brownl. p, 36.

If a Man has a Charter of Exemption, and sheweth it to the Sheriff, yet he may Retorn him; for the Sheriff is not a Judge to allow or disallow his Charter, but he must Sue out a Writ of al­lowance of his Charter, and deliver the Writ to the Sheriff, and shew his Charter to him, and then if the Sheriff Retorn him, Action on the Case lies against him.

On a Dorsetshire Tryal at the Bar, on default of all the Jurors but three, It appeared, that She [...]iff counter­mands the Summons the Sheriff had by command of the Plaintiff, countermanded their Summons against the Gree of the Defendant, who now prayed a Tryal. [Page 180] But this being impossible, for the Court in such Case will not supply the Jury with a Tales de Cir­cumstantibus: No Tales de circumstan­tibus on Tryal at Bar. But they offered to Non-suit the Plaintiff on Record, and conceived the Defen­dant should contribute to the payment of the Jury, because they should remain indifferent Jurors, 2 Siderfin 77. Hunt and Hollis.

Retorn of a Distringas, for appearance of the President. Defendant in the Hustings, 2 Sanders 233.

Retorn of a Jury by the Bedels of the four next Wards, 2 Sanders 244.

If the Sheriff Retorn but 40 l. which is the Issues. Action case against the Sheriff for Retorning two several Issues. usual Issues on Distring as Juratores, the Court on prayer of the party cannot cause him to Retorn greater; but only make a Rule, that good Issues be Retorned: But by Twisden Action on the Case lies against the Sheriff, 1 Keb. 475. The Plain­tiff ought to bring a Writ against the Sheriff on Averment against the Sheriffs Re­torn of Issues. Averment, that he might have levied greater Issues, and so the Court may increase them.

Note, Before Stat. W. 2. c. 39. the Plaintiff could not aver against the Retorn of the Sheriff, if he Retorned too small Issues, for he is but an Officer in Court, and has no day in Court to answer the Plaintiff party: But now by 1 Ed. 3. the Plaintiff may aver what the value of the Issues be, Rents of the Land, Corn in the Grange, What shall be said Issues. Hay in the Barn, all moveables except Riding furniture, and Utensils of House.

Retorn of the grand Inquest.

Stat. 11 H. 7. c. 9. No Indictment shall be found by any persons named to the Justices, without due Retorn of the Sheriff, but by Inquest of law­ful liege People Retorned by the Sheriff. One Scarlet whom the Sheriff had not Retorned, by confederacy betwixt him and the Clark who read [Page 181] the pannel, procured himself to be sworn of the grand Jury, with intent to indict his Neighbours maliciously, and he did so; he was adjudged an Justices may alter the Pannel. Offender within this Law, and by Statute 3 H. 8. c. 10. The Justices of Gaol Delivery, or Justices of the Peace, of whom one to be of the Quorum, in open Court may alter the Pannel Retorned by the Sheriff, to enquire of the King only, by Ad­dition, or substraction of any of the Jurors so Retorned, and they have power to command the Sheriff, to put other in the Pannel according to their Discretion. And the Sheriff ought to Re­torn the Pannel, so reformed upon the Penalty of the said Act. So that none can be of any Grand Inquest, but by the Retorn of the She­riff, Coke 12 Rep. Rob. Scarlets Case, Dalton. 394.

Note, By the Statute of 4 & 5 of William and Mary, all Jurors are not to have 10 l. per annum vide infra.

It is very needful for the High Sheriff, to have a Book containing the Names of all the Free­holders in his County, and their sufficien­ces, that he may make the Pannells according to his Oath, and better know Pledges and Sure­ties.

As for Issues lost for default of appearance, scilicet by Jurors, or by Tenant, or Demandant; the Sheriff may not levy till they shall be estreated under the Seal of the Exchequer, and the same delivered to him, for without Warrant he may not Levy the same, 27 Ed. 1. c. 7.

Other erroneous Proceedings and Misdemeanors of Sheriffs, about and concerning Jurors.

After the parties were at Issue in Trespass, and an Habeas corpus awarded against the Jury, the Common-Bench (in which the Action depended) Supersedeas restrains the Sheriff from Re­torning a Jury. awarded a Supersedeas, quia improvidè, &c. which was delivered to the Sheriff, who notwith­standing retorned the Jury and tryed the Cause. This was assigned for Error, and in nullo est erratum pleaded, it was adjudged Error. For the Error assigned is a Matter of Fact, depend­ing on a Matter of Record; and then the De­fendant What is confessed by plead­ing In nullo est erratum. by pleading In nullo est erratum had confessed this, (that is to say) That such Super­sedeas was awarded and delivered to the Sheriff before the Trial. Upon which it follows, that after the Supersedeas delivered, the hands of the Sheriff are closed, that he cannot proceed to distrain the Jury, nor to Retorn the Writ before the Justices of Assize. Its a manifest Error, if the Sheriff Retorn the Writ of Hab' corpora at the Assizes with Nisi prius after Supersedeas awarded for staying the Retorn of the Writ; as the Proceedings are erroneous in Inferior Courts after Habeas corpus delivered without a Procedendo, Yelv. p. 57. King and Andrews. Cro. Jac. p. 43. King and Hill.

It is not necessary for the Sheriff to Retorn Reasonable things shall be intended to be done. the Pannel of the Jurors Names, but to say they are de vicineto of such a place; for so it shall be intended, and the Forms of all Retorns of Jurors are so, Pract. Reg. tit. Retorn.

In a Writ of Error Eleven Jurors were Re­torned and one Stranger; yet because it was the Retorn of the Sheriff, it shall not abate, 1 Roll. Rep. 302.

The Statute of— Eliz—provides, There Reasonable things in­tended to be done. shall be two Hundredors in a Jury; yet its never seen that the Retorn of the Sheriff is so. So the Statute of 42 Ed. 3. c. 11. is, That the Sheriff shall arraign the Pannel in Assize four days before the Assize, yet its never Retorned to be so done; but such reasonable things shall be intended to be done, unless the contrary appear, 2 Siderfin p. 144. Barclee's Case.

An Attorney was picked over the Bar, for directing a Sheriff to retorn Jurors Names, Mo. 882. n. 1237. Hanson's Case.

Note, But now by the Statute of 4 & 5 W. & M. Stat. 4 & 5 of W. & M. all Jurors (other than Strangers, per medietatem Linguae) Retorned upon Trial of Issues joyned in the Kings-Bench, Common-Pleas or Exchequer, or before Justices of Assize, or Nisi prius, Oyer and Terminer, Gaol-delivery, or General Quarter Sessions of the Peace, shall have in their own Name or Trust within the same County Ten pounds per annum above Reprizes, of Freehold or Copyhold Land, or in Ancient Demesn, or in Rents in Fee-simple, Fee-tail, or for their own or some other persons Life; and in Wales Eight pounds per Annum. If any be retorned of Lesser Estate, he may be discharged by Challenge, or upon his own Oath; nor shall a Jurors Issues be saved but by Order of Court, for reasonable Cause proved upon Oath.

The Sheriff, Coroner, or other Minister re­torning any person of Lesser Estate, shall forfeit Five pounds to Their Majesties for every person so Retorned.

They must be summoned six Days before the day of their Appearance, and none shall take a Reward to excuse a Jurors appearance, on pain to forfeit Ten pounds to Their Majesties.

This Act extends not to Cities, Burroughs or Towns Corporate.

Of Challenges.

A Challenge to the Jurors is Twofold:

  • To the Array, Polls.

To the Array, is, to except against all the persons Impannelled: And as to this there is a

  • Challenge Principal, or for Favour.

Note, That the Challenge to the Array is in respect of the partiality or default of the Sheriff, or other Officer that made the Retorn, and not in respect of the Persons retorned, where there is no partiality or default in the Sheriff. For if the Challenge to the Array be found against the party that takes it; yet he shall have his parti­cular Challenge to the Polls.

If the Sheriff or other Officers be of Kin­dred or Affinity to the Plaintiff or Defendant; if the Alliance continue, a good cause of Chal­lenge, 1 Bulstr. 5, 6, 7, 8. Earl of Salop versus Earl of Rutland.

Challenge was taken to the Array, because the Sheriff was Cousin to the Lessor in Ejectment, and concludes not to the Favour; its a principal Challenge. Yet in Roll. Rep. 183. its adjudged a Principal Challenge; and in 1 Roll. Abr. 328. Guest and Bridgman, saith, It is not a Principal Challenge that the Lessor is Cousin. But Trin. [Page 185] 1657. B. R. in the Lord Brook's Case its a Princi­pal Challenge, Cro. Jac. 575. Simonds and Walsh, 2 Rolls Abr. 182.

Venire fac' was awarded to the Coroners on surmize, that the Lessor in Ejectment was Ser­vant to the Sheriff. It was doubted, whether it was a Principal Challenge in 1 Jac. Harbottle's Case. Coke said, It was Adjudged in 27 El. in Packington's Case, that it was not a Principal Challenge; but in Spicer's Case it is Resolved otherwise, Cro. Jac. 21. Dyer 7, 367.

If the Challenge be taken for Cosinage, it ought to be shewed coment Cousin; but in such case Challenge to a Juror, is not necessary.

Its clearly a good Challenge to the Array, that the Sheriff is Cousin to the Wife of the Defen­dant, tho' the Wife is no party to the Action: But it must be averred, that she was alive, or had Issue at the making of the Pannel.

1. If the Jury may try a Challenge for Cosi­nage of the Sheriff to the Plaintiff or Defen­dant, and sometime the Coroners, or Attorneys in Court, are Elisors, 2 Roll. Rep. 363. Lloyd and Elisors. Williams.

If the Defendant challenge the Array, for that the Sheriff is Cousin to the Plaintiff; it is no Counterplea of the Challenge that the Sheriff is also Cousin to the Defendant; but the Array shall be quasht, because the Defendant first took the Challenge, Pasch. 41 El. B. R.

2. If any one or more of the Jury be retorned at at the denomination of the party, Plaintiff or Defendant, the whole Array shall be quasht.

3. If the Plaintiff or Defendant have an Action of Battery or Debt against the Sheriff, or if the Sheriff have parcel of the Land depending on the same Title; or if the Sheriff or his Bayliff be either of Counsel or Attorney, or [Page 186] Servant or Gossip of either party; all the Array shall be quasht.

A Prayer to Elisors in Trials at Bar may be at Elisors. the Suit of the Defendant or Plaintiff; but in Nisi prius, at the Prayer of the Plaintiff only.

Consanguinity or Affinity are the principal Causes; but its no Challenge to the Array, if all the Jurors be of Affinity.

Challenge to the Array for Favour, That the Sheriff is Servant to the Plaintiff, or was Arbitrator for a party: That the Sheriff purchased part of the Land in question: That one party is Tenant or Servant to the Sheriff.

Malice between the Sheriff and one of the parties, is good cause of Challenge, That one of the parties has brought an Action of Debt against the Sheriff, &c. but not that the Officer has Debt against the party; for he may demand his Debt without Malice.

This kind of Challenge being no principal Challenge, must be left to the Conscience and discretion of the Tryors.

Challenge to the Polls, i. e. to the particular Challenge to the Poll. Jurors; and these are of four sorts:

1. Peremptory, without shewing any Cause; and this for Treason is 35. Felony 20.

2. Principal Challenge to the Polls; so cal­led, because it stands of it self, without leaving any thing to the Conscience or Discretion of the Tryors. Now this is such Matter as proves evident Favour or Enmity in the Juror.

And this is, Propter respectum; as the Nobility may be challenged, or he may challenge himself, propter defectum, as Aliens, Villains; not having Freehold sufficient; not having two Hundredors. Propter affectum, as Jurors of Kin or Blood to either party; that he has formerly Tried the Cause; Counsel; not a Commissioner for [Page 187] Examination of Witnesses; Fellow-Servant; for Favour; propter delictum, as Outlaw'd, &c.

3. Challenger to the Poll must shew Cause presently. After one hath taken Challenge to the Poll, he cannot challenge the Array.

4. If the Plaintiff alledge a Cause of Chal­lenge against the Sheriff, the Process shall be directed to the Coroners; and if any Cause against all the Coroners, then the Court shall appoint Elisors. Sometime, two of them that be Elisors. Impannelled.

When any Challenge is made to the Poll [...], two Tryors shall be appointed by the Court.

Note, All Challenges must be taken before the Jurors are sworn.

No Challenge shall be admitted against the Tryors, appointed by the Court.

There may be a Challenge to the Pannel by Exception to the Sheriff, after a Tales prayed to him: So after a Venire fac' prayed to him, tho' the cause of Challenge were before the Prayer, Hob. p. 235.

Upon a Writ of Error the Record was certified, That the Challenge was to the Sheriff for Cou­sinage, and after a Venire fac' awarded to the Coroners, upon the Diminution it may not be Certified, That the Challenge of the Cousinage was after the Retorn of the Venire fac'; because this is contrary to the Record before certified, 1 Roll. Abr. 764. Floyd and Bethell.

That the Sheriff was quondam Servant to the Defendant, Earl of Rutland, is no principal Challenge, its past and executed. Aliter, had it been so at the time.

To say, That between the Sheriff or Officer that retorns the Pannel, and one of the Defen­dants, there was an Action of Trespass then de­pending, is a principal Challenge.

CHAP. XIII.

Of the Writ of Enquiry of Damages, and the Sheriffs demeanor therein, and in what Cases a new Writ shall be granted, or not. By whom to be executed. The time of Executing it. The Form of the Retorn of a Writ of Enquiry of Da­mages.

Vide sub tit. Waste.

IF upon the Executing of a Writ of Enquiry A new Writ granted. of Damages the Sheriff refuseth to swear and examine some of the Witnesses produced on either part, and yet doth execute the Writ; the Court will grant a new Writ to the party grieved, for the old Writ was not well executed, Pract. Reg. 348.

A Writ of Enquiry of Damages directed to the Sheriff, cannot be executed by a Bayliff of a Liberty, Hob. p. 83.

Writ of Enquiry of Damages varies in the Amended. retorn of the Award upon the Roll, which was amended and made agreeable to the Roll, Mo. 711. n. 998.

As to time of Executing it.

If a Writ of Enquiry of Damages be Retorn­able Octabis Michaelis, the Sheriff may take the Inquest and enquire the Damages the day of the Retorn, and after he Retorns it the same day; this Writ is well executed, Trin. 38 El. B. R. Gawen and Ludlow.

If on a Writ of Enquiry of Damages the In­quest be Impannelled the Essoyn Day, and the Jury then hear their Evidence two or three days after; yet this is well executed, Mich. 11 Car. 1. B. R. Stainby and Waterman.

Retorn of a Writ of Enquiry of Damages.

Executio istius brevis patet in quadam inquisitione huic brevi annex'.

INquisitio indentat' capta apud C. in Com' War' (tali die & anno) coram A. B. Armig', Vicecom' ejusdem Com', Virtute cajusdam brevis domini Regis, eidem Vic' direct' & huic inquisitioni consut' per Sacrament' R. S. F. G. &c. (ad numorum 12 Jurors) qui dicunt super Sacramentum suum quod A. P. in brevi Inquisition' huic consut' nominat' sustinuit damna occasione (Trangress. praedict') per H. in praed' brevi nominat' prout in eodem brevi fit mentio ad 40 s. & pro mis' & custag' ipsius A. P. per ipsum circa sectam suam in hac parte appositis ad 40 s. In cujus rei, &c.

In this Writ, to Enquire of Damages in Tres­pass, the Jury cannot find that no Trespass is done. Neither may the Sheriff make such a Retorn; but if the Jury will find no Damages, the Sheriff must make his Retorn accord­ingly.

CAP. XIV.

Where and in what Cases the Sheriffs Retorn of a Devastavit shall be good or not, and the late practice in such Cases.

THe Defendant pleads plene administravit, and Sheriff concluded to make any retorn, contrary to the Verdict. Verdict is for the Plaintiff, this estops the Sheriff of the County where the Trial was to Retorn Nulla bona; for he is concluded by the Verdict to make any Retorn contrary to it; but the Sheriff of another County shall not be so concluded. But the Sheriff of the County where the Writ is brought ought to Retorn a Devastavit, and thereupon the Plaintiff shall have Process into another County, 2 Leon. n. 90. p. 67. Noon's Case, 1 Anders. 32.

And the Question further was, If a Testatum shall issue into another County, before the Sheriff of the County where the Writ was brought had retorned a Devastavit, and not Resolved; but without doubt its the safer way to do it upon the Retorn.

The principal Case was; Debt in London against an Executor, upon plene administravit it was found for the Plaintiff, the Plaintiff assign­ed the same to the Queen, and a Scire fac' issued out of the Exchequer against the Defendant, &c. into the County of D. and the Sheriff retorned Nulla bona, &c. which was not good, causa qua supra, tho' the Debt was well assigned. And upon a Constat of Goods in another County, he may well have a Scire fac' into another County, 2 Leon. n. 90. Bendl. 23.

But if Executors plead plene administravit, it was found they had Assets, and a Fieri fac' issued to the Sheriff, who Retorned that they had not any thing within the County. Per Cur', Its a good Retorn, because the Jury it may be found Assets in another County; so the Verdict shall not bind the Sheriff, 2 Brownl. Rep. p. 116. Morgan and Took.

If it appear by the Defendants Plea that he hath When the Sheriff may ret [...]rn Devasta­uit. Assets in his hands, and if the Sheriff cannot levy the debt in the Defendants hands, he may upon the Defendants own shewing (without any damage) retorn a Devastavit; and if Judgment be given against an Executor on Demurrer, and Execution awarded, the Sheriff cannot Retorn Nulla habet bona Testatoris. But it is a Devastavit if it be found against the Executor by Verdict. Cro. Eliz. 102. Stubs and Rightwise.

Judgment was given in Banco de bonis Testatoris, Special Scire fac'. and Fieri fac' issues out; the Sheriff Retorns Nulla bona; the Plaintiff may have a Special Fieri fac', That the Sheriff shall levy the Debt of the Goods of the dead, and si sibi constare poterit, Fau [...] Re­torn. that the Executors have wasted them, then de bonis propriis; and if the Sheriff makes a False Retorn, the party may have an Action on the Case. But if upon the Retorn of Nulla bona, and a Quia Testatum est, that they have wasted, a Writ of Enquiry is awarded what Goods were wasted, and its found that Goods ad valentia [...] of the Debt were wasted, and upon that a Scire fac' to have Execution de bonis propriis upon two Nichils retorned; This is Erroneous, and if the Inquisition be false, the party hath no Remedy, and upon two Nichils retorned the Defendant shall be condemned; yet perhaps he had not Notice, 5 Rep. Pettyfer's Case.

To that purpose is a Case in Littleton's Reports, Judgment was given against the Executor, and Execution awarded; and the Plaintiff informs the Sheriff, that the Executors have wasted the Goods of the Testator; but the Sheriff would not retorn a Devastavit. Henden Serjeant moved for a Commission, to enquire whether the Goods were wasted; and if it be found, then the Sheriff might retorn a Devastavit without peril. But the Judges said, they would not Advise, because it was a New course, Lit. Rep. 47.

But in Aldworth and Peel's Case it was Re­solved. There Debt was brought against Peel as Executor, the Plaintiff had Judgment to re­cover de bonis Testatoris; and thereupon a Scire Scire fac' de bonis propriis shall not be award­ed upon the sur­mize of the party, but on the Retorn of the Sheriff of a De­vastavit. fac' was awarded, and the Sheriff retorneth quod nulla habuit bona Testatoris; and the Plaintiff surmizeth, that he had wasted the Testator's Goods; whereupon he prayed a Scire fac', why he should not have Execution de bonis propriis. And per Cur', this Writ shall not be awarded upon the surmize of the party of a Devastation, nor in any case where the Judgment is de bonis propriis; unless it be on Retorn of the Sheriff, where he retorns a Devastavit, Cro. El. 530. Ald­worth and Peele.

If A. recover against B. Debt and Damages, and after B. died, and Administration is granted to C. his Wife, who wastes the Goods, and after takes D. to Husband, and a Fieri fac' is awarded de bonis Testatoris in the hands of D. and C. and the Sheriff Retorns Nulla bona, &c. and upon this, on surmize that they have wasted the Goods, another Writ was awarded to the Sheriff, Si sibi constare poterit per Inquisition', that they have wasted the Goods, then to warn them to shew cause why Execution should not be de bonis propriis, and so an Inquisition is taken. And the [Page 193] Sheriff Retorned, That they had not in their hands any of the Goods of the Intestate; but that the Feme being Administratrix of her first Husband, had Goods of the value of 100 l. of the said Intestates, and had wasted them during her Widowhood, and the Husband had not wasted any of them. Et si devasterunt accord­ing to the Writ, the Jury pray the Discretion of the Court. Per Cur'. This Special Retorn of the Sheriff is good, and by this the Husband is ☜ to be charged for the Conversion of the Wife. Cro. Car. 603. King and Hilton.

The Sheriff Retorns a Devastavit (no Assets over being in Question) on Non est factum against an Administrator by Fieri fac', with a Scire fac'. Per Cur', Tho' it be a False Retorn we cannot Faux Re­torn. help it, but its at the Sheriffs peril, 3 Keb. 530. Brown and Collins.

On Fieri fac', with a Scire fac' and Assets, the Sheriff returned Waste, and the Defendant pleaded plene administravit. The Plaintiff de­murred, because the point of the Inquisition is not traversed, and Judgment pro Querente.

Debt against an Executor, and a Recovery by Verdict, and Judgment upon this, and a Fieri fac' de bonis of the Intestate; upon which a Devastavit was retorned, an Elegit issues de bonis propriis, Mo. 299. n. 446. Mead and Cheney.

If A. recover against B. and Execution de bonis The party may dis­charge himself of a Devasta­vit by Plea, That the Sheriff levied the Money on the first Fieri fac'. Testatoris, si non, de bonis propriis, and the Sheriff upon a Fieri fac' levies the Moneys, and after to another Fieri fac' to him directed, Retorns a Devastavit; and upon this a Scire fac' is granted against B. to shew cause, &c. B. may discharge himself of this Devastavit by Plea, that the Sheriff levied the Money upon the first Fieri fac. 1 Roll. Abr. 903. Middleton and Powell.

President,

Retorn of a Fieri fac' upon a Devastavit, Dyer 222.

But now the Practice is more nimble than by the tedious Inquisitions, and that is, by bringing Action in the Debet and Detinet against an Exe­cutor, suggesting a Devastavit in his Declara­tion, without any Retorn of the Sheriff, Siderfin 397. Wheatby and Law.

On a Fieri fac' in a Scire fac' to have Execution de bonis propriis.

Sheriff Retorns upon Inquisition, That the Defendant (Administrator) habuit bona & catalla Plea to Scire fac' de Deva­stavit. in manibus suis quae fuerunt del intestate tempore mortis suae ad valentiam debiti & damnorum reco­vered by the Original Judgment; and that the Defendant bona & catalla illa ad valenc' debiti & damnorum praedict' vendidit & elongavit ac in usum suum proprium convertit & disposuit. Defen­dant at the Retorn of the Writ comes in, & protestando that he had fully Administred, for Plea he saith, non vendidit seu elongavit, &c. Et hoc, &c. Plaintiff replies, That the Defendant vendidit & elongavit, &c. and found for the Plaintiff. Per Cur', Tho' this is no apparent Issue (but whether devastavit vel non) for the Defen­dant might pay Debts with his proper Moneys, and that he might dispose of the Goods to his own use; yet its good after Verdict. For the Writ of Scire fac' suggests, That the Defendant bona & catalla, &c. disposuit ea intentione qd' dict a executio fieret, 1 Sand. 306. Merchant & Driver. And it is the Defendant's own fault to take such an Issue; for he might have taken Issue, that he had not Goods of that value, or that he had paid any special Debt.

CHAP. XV.

Of Prisons, to whom they belong, and the place where kept. Who may be keeper of Gaols, &c. and how forfeitable. Of the Sheriffs of Londons Prison, and of the Marshalsea, and the Grant thereof. Of the Sheriffs detneanor towards Pri­soners. Of the Prisoners Misbehaviour, and what payment of a Debt to a Gaoler shall be good, or not. And of those that break Prison.

Of Prisons, &c.

ALL Prisons are the Kings; but a Subject may be Keeper, Co. 2 Inst. 100, 580.

The custody of County Gaols is incident to County Gaol inse­parable to the Office of Sheriff. the Office of Sheriff, and inseparable from the Sheriff; and therefore if the King grant the Custody of such a Gaol to another, its void: For the Sheriff is the immediate Officer of the Kings Courts, and shall be answerable for Escapes, and be subject to Amerciaments, and therefore he shall put in such Keepers as he shall answer for, 4 Rep. 34. Mitton's Case, 14 Ed. 3. c. 10.

The Sheriff may remove his Gaol from one The place where to be kept. place to another within his Bailywick. And the Sheriff may hold the Assizes in the Castle where he held them there by Prescription, altho' the King grant the Custody of the Castle to another. So that tho' the Sheriff may keep the Gaol in what place he will within his Bailywick, yet in a particular place not without Prescription, Heb. p. 202. 1 Anders. 345.

Infants or Feme Coverts are keepers of Gaols, to charge them in Execution for an Escape, 2 Inst. 382.

As the King may by his Letters Patents make a County, so he may in the making of it, save and except to him and his Successors such part of the Jurisdiction or Priviledge, which the other County (from which it is exempted) had in it before. As in many places in the Realm, the Gaol of a Town, which is a County of it self, or a place priviledged from the County, is the Gaol of the County, and the place where the Assizes or Gaol-delivery is holden, is within the County of the Town, and yet serves also for the County at large: As in the Sessions-Hall at Newgate, which serves as well for the County of Middlesex, as for London, and yet it stands in London; but by Usage it hath been so. And so the Gaol of Berry, &c. Poph. p. 16. The Case of the Town of Gloucester.

The Sheriffs of London's Court is moveable, Prison of the Sheriffs of London. and the Sheriff is chargable with a Prisoner while he is in Prison, tho' he be Judge also. For why should the City Serjeants give Security to the Sheriff, unless the Sheriff be the Officer? And it hath been Ruled, That altho' the Sheriff be Judge, yet a Precept is directed to him. Therefore its a good Plea in Debt on Escape, That the Sheriff Commanded the Serjeant at Mace to deliver the Prisoner to him, Siderfin p. 318. 2 Keb. 141. Husband and Cole.

Note, The Sheriffs of London may make their Houses their Prisons, as well as the Compters: And the bringing the person arrested to the Sheriff, albeit it be sub dio, and not into any House; yet its as good as delivering into the Sheriffs Prison. Vid. infra. [Page 197] Note, Upon Forfeiture the Custody of a Pri­son is given to another, and yet till he is actually removed he shall answer for all Escapes, and he that occupies the Gaol by Tort shall answer; and actual Escape lies against him who had possession at Will, 11 H. 7. 23. Dyer 274.

But if he be not sufficient, Respondeat superior. 9 Rep. Reynold's Case. Vide supra.

Grant by Patent of the Office of the Mar­shalsea Marshal­sea. of the Kings-Bench for years is not good, for the Inconveniences that might ensue; it may thereby become in suspence upon probat of a Will, till Administration committed thereof; and it might fall to persons Insufficient; and in case of Fee or Tail it descends to an Infant, the Court puts a fit person in for the time, Cro. Car. 587. Meade versus Sir J. Lenthall.

Vid. more of the Marshalsea, 9 Rep. Sir G. Rey­nold's Case, 10 Rep. Case of the Marshal­sea.

Marshal of the Kings Bench shall not be privi­ledged from Execution. But if the Court do grant him in Execution its an Escape as to all the Prisoners; but they may make a new Mar­shal, and then take him in Execution, Siderfin p. 68.

By Hyde, Chief Justice of B. R. The Court Informat' versus le Marshal. cannot sequester the Marshal's Office, for not paying a Debt due to any private man. But by Windham, an Information may be against the Officer for this ill using his Office to shift mens Debts, and on that the Court may sequester. So on any Contempt by him, 1 Keb. 846. Roberts versus Sir J. Lenthall.

Attorney of B. R. brought Trespass against the Warden of the Fleet. Warden of the Fleet, who advised with the Court of C. B. that he being an Officer of this Court, ought not to be impleaded elsewhere. Per Cur', Its equality of Liberty, and he that first begins the Suit shall have the priviledge; and so he was advised to Answer, 2 Leon. p. 41. Povey's Case.

G. brought Action of Debt against the Warden by a Bill of Priviledge, but he would not appear; and the Court were in doubt, what remedy the Plaintiff hath to compel the Defendant to ap­pear. For he cannot be fore-judged the Court, because he had Estate of Inheritance in the said Office: But the Warden having made a Lease of his Office for three years, he shall not have his Liberty, 2 Leonard 173. Gittonson's Case.

As for Gaols which have been granted in Fee, or Life, or which have been held by Prescrip­tion, may be forfeited several ways.

Where the Gaoler detains a Prisoner after Fees paid, the King may seise the Gaol, 2 Inst. 43, 53.

Of the Sheriffs Demeanor towards Prisoners.

Britton c. 11. saith, No Prisoner shall be put in Irons, but Traytors, or those taken for Felony or Trespass in parcis & vivariis, or which shall be found in Arrears in Account before they be at­tainted. Vide 1 Ed. 3. c. 7.

My Lord Coke, in his 3 Inst. 35. extreamly inveighs against Racks. It is true, the punish­ment is amazing; but as the sins of every Age grow more impudent, so their penalties ought to be more severe: And if we will translate our Neighbouring Nations Villanies, we ought to [Page 199] imitate their punishments; especially for Offen­ces publick, and which go to the ruin of a Na­tion.

I will put a common Instance. At this present our current Trade is almost spoiled by our Non­current Money, and he that shall break open a Bakers Window to take a Sixpeny Loaf to supply meer Nature, shall be as severely treated, as' he that Clips and Counterfeits the Coyn; I mean, a little dry Hanging serves for both; for as to the Sledge, its insignificant. And we shall conclude, It will never be otherwise unless the Breaking on the Wheel and dying by piece­meal, sometimes used in other Countries, may terrifie Spectators, and those to whom it is Re­ported; ut poena ad paucos, &c.

Tho' there is no person that has a greater Veneration for our Common Law than my self; yet I conceive I may say, the spreading and new Villanies of our Nation are chiefly owing to our undistinguishing punishments.

He that takes but Half a Crown on the Pad shall be hanged, and deservedly; and he that Blasphemes his God, Murders his Father, and commits a Rape upon his Mother, shall e'en make his Exit with a few wry wet Looks, and a little Swing or two: Which punishment I must needs observe is almost grown into Contempt by the major part of Criminals.

I need but mention the notorious Case of Felton; and the late Story of the barbarous Mid­wife.

By our Law it is plain, A Prisoner in Execu­tion shall not be in Fetters, but for Criminal Causes.

But to return to my purpose: A Prisoner (while he is such) is under protection of the Law, and accordingly is to be used.

And therefore where a Prisoner, by duress of the Gaoler, comes to an Untimely End, it is Murder in the Gaoler, 3 Inst. 52, 91. And the Law implies Malice in him in respect of the Cruelty.

And therefore if a man dye in Prison, the Coroner ought to sit upon him, to the end it may be enquired, if he came to his death by the duress of the Gaoler, or otherwise, 3 Inst. 91. 52.

If the Sheriff, or other Officer, where he ought to Hang the party attainted, according to his Judgment and his Charge, will (against the Law) of his own wrong, Burn or Behead him, &c. the Law in this case implies Malice in him.

By the Statute of 14 Ed. 3. c. 10. If a Keeper, or Under-Keeper of Prisons, by too great duress of Imprisonment, or by Pain, make a Prisoner become an Appellor, ( viz.) an Approver against his Will, its Felony.

Every Imprisonment is in Law duritia, duress; a little addition to it by the Gaoler, is too great duress in this case.

There is a remarkable Case in 3 Bulstrode. The Court was moved by Sir G. Reynell against one of his Prisoners, who had much misbehaved himself, offered to Escape, and had endangered the killing of one of his Servants, and that he had spent Ten pounds after him; and he would have had the Court to have fined him. But per Cur', We will not do it; you must keep him in arcta custodia in Irons, and you may Indict him for these Misdemeanors, and by that way you may have him Fined, 3 Bulstr. 245. Sir G. Reynell's Case.

The payment of a Debt by a Prisoner to a Payment of the Debt to [...] Gaoler. Gaoler is not good; and therefore in Debt the Defendant pleads, That he was a year in Exe­cution and the Plaintiff could not be found, whereupon he paid the Money to the Gaoler. The Plaintiff replies, That he was to be found at D. absque hoc, that he absented eo animo, to keep the Defendant in Prison. And the Defen­dant to this Demurs, because the Marshal may dye, and no Recovery can be by the Defendant against the Marshal, if he do not pay it over. But the Court gave Judgment for the Plaintiff; it being not reasonable to pay Money to the Gaoler for the Plaintiff, whether he will or not. And also, they thought it too hard for the Plaintiff to prove payment, or to prove Assets in the hands of the Marshall's Executors, 3 Keb. 748. Taylor and Baker, Sir Tho. Jones's Rep. mesme Case.

Where the Imprisonment is unlawful the Prisoner is not to pay for his Diet, 1 Roll. Rep. 329. Oliver's Case.

Note, If a Prisoner is in Execution, and the Gaoler or Sheriff dye, he is in abeyance and custody of the Law, 3 Rep. Westby's Case.

A Gaoler is not bound to deliver his Prisoner, who is Discharged by the Court, until he pays his due Fees.

A Prisoner acquitted of Felony, the Gaoler may take Twenty pence, which is called a Bar Fee.

Every Sheriff Bayliff of Franchise, and every other person having Authority of keeping Gaols, or of Prisoners for Felony, shall certifie the Names of every such Prisoner in their keeping at the next General Gaol-delivery in every County or Franchise where such Gaol is, there to be Kalendred before the Justices of the Delivery of the same Gaol, whereby they may, as well for the King as the party, proceed to make delivery of such Prisoners, according to the Law, on pain of Five pounds, 3 H. 7. 3.

If the Gaoler shall suffer an Escape, the High Sheriff or Gaoler are chargeable therefore.

CHAP. XVI.

When one may be said to be in Execution or not. And when without Prayer or not. In what Cases the Sheriff may break open an House to do Execution or not. To what Sheriff, and of what place and County shall Execution be Awarded. Of a Cap. ad satisfaciend' for what and against whom it lies, and the Sheriffs Demeanor therein, and Re­torns thereupon.

Of Execution.

When one may be said to be in Execution or not.

When one shall be in Execution with­out Prayer of the Plaintiff or not.

IF a Man recover Damages in Action on the Case against J. S. in the Kings Bench, the said J. S. being in Custod' Mareschal'; yet he shall not be in Execution on this Judgment, altho' it be within the year, before Prayer of the Plaintiff; for the Marshal may not take notice of every Where a Man Comittitur. Judgment against every Prisoner; but upon Prayer of the Plaintiff, a Comittitur shall be en­tered upon the Roll, and then he is in Execu­cution; but if the Defendant being taken in Execution, be brought on by Habeas Corpus, and then an Entry of the Com [...]tur is made in the Book of the Office, its Go [...] Hill. 12 Jac. B. R. Sir Henry Bellows and Hanford. 2 Rolls Rep. 112.

If a Man recover in B. C. Debt and Damages against J. S. and had Judgment, altho' that J. S. be a Prisoner in the Fleet for other Causes, (which is the Prison of the Common Bench) and the Warden informs the Court of it, and the Court commands him to retain him, in Execu­tion until satisfaction of the Judgment; yet he is not in Execution, because he was not brought to the Bar by Habeas Corpus, and viewed and demanded of the Prisoner, if he be the same person, who is Condemned or not; and it is the Office of the Court to oppose him, Dier 13, 14 El. p. 306. pl. 63. So if the Warden inform the At the Prayer of the Party or not. the Court of Chancery, that J. S. (which is Pri­soner there on a Judgment) is in his Ward for certain Causes, on which the Court commands the Warden to Retorn him in Execution, until satisfaction of the Judgment; yet J. S. is not in Execution upon the Judgment, because this was not done at the request of the Plaintiff, but without his Prayer, for it may be he will Elect another Execution, Dier 306, 63.

In Debt against J. S. if the Defendant be taken upon a Latitat, and committed to the Marshal for default of Bail, and after the Plaintiff reco­vers against him he continuing in Prison; yet he shall not be in Execution for this Judgment, before the Prayer of the Plaintiff, M. 4 Jac. B. R. Car. and Copping.

If a Man recover in Debt and Outlaw. The On Cap. Utlegat. Defendant after Judgment, and after within the year the Defendant is taken by Cap' Uslagatum, he shall be in Execution for the Plaintiff before Prayer, because the Outlawry was at the Suit of the Party, 5 Rep. 88. Garnons Case, H. 41. El. B. R. Bonner and Stackley. Otherwise it is, if he be taken in Execution after the year, because in that Case he may not have any Capias against [Page 205] him, Hill. 38. El. B. R. Norton and Sharp. But if a Man Outlaw the Defendant in Debt after Judg­ment, and after within the year, the Defendant is taken by Cap' Utlagatum, altho' he be in Exe­cution for the Plaintiff prima facie; yet he may make Election, that it shall not be an Execution for him, 44 El. B. R. Shaw and Cutter.

If Execution by default be Awarded in a Scire fac' Scire fac' upon a Judgment in Debt, and the Defendant four years after was in the Fleet for other Cause; and by Habeas Corpus he was brought up to the Common Bench, and being opposed by the Court, if he were the person who was condemned, ut supra, and he grants it, he Tho' after the year and day. shall be committed in Execution, at the Prayer of the Plaintiff as it seems, tho' it be after the year and day, Dier 214, 147.

If A. recover against B. by Judgment in the Kings Bench, and upon this B. renders himself to Prison, and after brought a Writ of Error and had a Supersedeas; yet after upon Prayer of the Plaintiff, the Court may commit him in Execu­tion, Writ of Error, Bail. altho' that the Record be removed; foras­much as he had not found Bail upon his Writ of Error, p. 9. Car. 1. B. R. Symonds Case.

How and in what Cases the Sheriff may break open an House to do Execution.

The Leading Case in this Point is Semaines Case, reported by my Lord Coke, in 5 Rep. and in Crokes Eliz. 98. out of which I shall Collect these [...]ollowing Resolutions.

The Case was, ‘A Joynt Termor of an House with B. dies, being bound in a Statute. The Sheriff Retorns him dead, Conusee Sues another Writ to ex­tend his Lands, which he had at the time of his death or after, and what Goods he had at the time of his death: The Sheriff Impanels a Jury to enquire what Goods, &c. and it was found there were divers Goods of the said de­ceased at the House of B. in London: And the Sheriff came with the Jury to view Appraise, and seise them for this Debt, and the (Defen­dant) Surviving Termor, premissorum non igna­rus shut the Door, and disturbed him to make Execution.’

It was resolved,

First, Upon Recovery the Sheriff may break On habere fac' possessi­onem. open an House, and deliver it to the Plaintiff; for the Writ saith, habere fac' seisinam, or posses­sionem. And after Judgment it is not the House of the Defendant in Right.

Secondly, upon a Capias ad satisfaciend', the De­fendant may not break open any Mans House to make Execution; but in all cases, when the Door is open the Sheriff may Enter to make Execution of Body or Goods.

Thirdly, In all Cases where the King is Party, so on Hue and Cry, if no Door be open, the Sheriff may break open the House to take him, or to do Execution or other Process; as upon a Cap' Utlagat', or upon Contempt: But he ought first to signifie the Cause of his coming, and request the Owner to open the Door, but not to break open any Mans House by night.

Fourthly, Upon a Fieri fac', or Extendi fac', the Sheriff may not enter into the House of any, the Door being shut, nor draw a Latch no not after request and denyal; yet tho' the Sheriff be a Trespassor in breaking open the House by Fieri fac', yet the Execution is Good.

Fifthly, The House of any one is not privi­ledged but for himself and his Family, and his own proper Goods, not to protect any who flie there, or the Goods of another conveyed there; and in such case after request, the Sheriff may break open the Door; but in the principal Case he did not request it, and so the shutting the Door by the Defendant was lawful, and no Action lies against him. And as for the Allegation of ( premissorum non ignarus) it is too general, and Notice ought to be specially alledged, that he Notice. was Sheriff and what he came to do; and the Defendant being a Stranger to the Execution, he is not bound to take notice of the Sheriffs intent.

Upon a Fieri fac', a Barn which stands in the Field may be broken by the Sheriff, because it is not part of the Dwelling-house, and there needs no request, aliter had the Barn been adjoyn­ing and parcel of the House, Siderfin 186, 187. Pentons Case, 1 Bulst. 146. Foster and Hole.

But tho' a Sheriff cannot break open a House, being to take Execution by Fieri fac', yet when the Door is open that he enters, then he may and ought to break open the Door of an Entry or Chamber which is locked, or break open any Chest which is locked and take the Goods, and if he do not, an Action of the Case lies against him, 1 Browl. Rep. 50.

Diversity was taken in White and Wiltshires case, where the Execution is lawfully begun, there the Sheriff or his Officers may break the House to mak Execution, otherwise, when it is not lawfully begun. If one be Arrested by the Sheriff and he escapeth to his own House, and the She­riff persues him and breaks open the Doors of his House, and takes him again, the party shall never take benefit of this his own wrongful es­cape.

Two of the under Sheriffs Bayliffs entred into the House, the Door being open, to take Execu­tion of the Goods, and the Plaintiff shuts the Door upon the Bayliffs, and imprisoned them for two hours; the Sheriff may break open the House to Rescue his Bayliffs. Cro. Jac. 555. White and Wiltshire.

Note, the Sheriff was fined for breaking open an House, and rushing in with Sword drawn, the Door being half open, on private Process. By the Stat. W. 1. c. 15. the Sheriff may break open an House or Castle to make Replevin when the Goods of another are Conveyed there. 5 Rep. Semain's Case.

If a Bankrupt convey his Goods to his Neigh­bours House, the Serjeant Commissioners may not, but the Sheriff may break open the House, because he is a sworn Officer of the Kings Goodwins Law against Bankrupts 65. Quer.

Upon a Commission of Rebellion out of Chan­cery, the Sheriff may break open the House to apprehend the party therein, whether in his own or anothers House. Cromp. fo. 47.

The Sheriff may take the posse Comitat. to do Execution Per Stat. W. 2. c. 39. and he may take it post vel ante querimoniam, but he may take it after resistance, and not before; for sequi de­bet [Page 209] potentia justitiam non praecedere. Co. 2 Inst. p. 454.

But suppose the Sheriff cannot do Execution Posse Co­mitat. by the posse Comitatus, then saith the Book 1 Keb. 99. 117. he ought to acquaint the Deputy Lieu­tenants of the County, and if they assist not, he must acquaint the King and Council, and yet the Sheriff shall not be amerced, if he re­turn he cannot do Execution; but in Godbolt. 79. upon a resistance of Execution, the Council Table refused to meddle in it, because the Court of Kings-Bench ought to see their own Judgment executed: and a Writ was prayed to the high Sheriff with a special Rule, that the high Sheriff should execute it himself, which the Court gran­ted, and a Tipstaff to fetch the under Sheriff up to return his Writ, which is better than an Attachment which is returnable by it self. 1 Kel, 99. 117. Godbolt 79. Bush and Chamberlaine.

To what Sheriff, of what place or County shall Execu­tion be awarded.

If Recognizance of Bayl be taken by a Judge of the Common-pleas at Serjeants Inn in London, upon an Original brought in London, and certifies this into the Court of Common-Pleas, and is there enrolled; but it appears on Record, that it was taken as before, a Scire fac' may be awarded upon this Recognizance to the Sheriff of London where the Capias was, for there was the Commencement of it, and also the Scire fac' may Scire Fac. the Sheriff of London or Middle­sex on Recogni­zance of Bail. be awarded to the Sheriff of Middlesex where the Recognisance was enrolled, 1 Rol. Abridg' 891. Johns and Lee, Andrews and Harbin, Poltney and Forebench, Feildgate and Gardener, contra. 5 Mariae by Brook, And by all the Prothonotaries then, it ought to be brought in London and not in Mid­dleseas. [Page 210] But in 13 Car 1. the Prothonotaries certifi­ed that it may be brought in London or Middle­sex.

W. 2 c. 18. saith Vic. ei liberet Medietat' per ra­tionabile extent. (viz.) per inquisition, and the She­riff Serjeant at Mace may execute Elegit. is sworn, and a Serjeant at Mace is not sworn to take a Jury; yet the Stat. extends to every o­ther immediate Officer, to any of the Kings Courts of Record, and so a Serjeant may execute this, and a Fieri Fac' also, and this Stat. couples Ele­git with a Fieri Fac' and limits both to be execu­ted by the Sheriff, but in Wast and Redisseisen, the Sheriff must do it in person. 4 Rep. 65, 66. Fullwoods. Case

If a Man recover Damages in Action of Wast The Writ to levy Damages in Waste to whom to be derected. in one County, the Writ to levy them shall issue to the Sheriff of the same County where the Action was first brought, and not to any other; but if the Sheriff retorn he had nothing, he shall have execution into any other County where the Recoveror will. 29 Ed. 3. 9. b.

Having treated of Executions in general, as far as relates to Sheriffs; I shall now proceed to speak of Executions in particular, as to the She­riffs demeanor about the executing of them, and making due Retorns upon them. And 'its a Point very fit for the consideration of all Sheriffs specially.

There are but 4 mannner of Executions, Two by the Common Law, and Two by the Stat. Law,

by Common Law
  • Levari
  • &
  • Fi' Fac'
 Executions.
  • Stat. Sta­ple,
  • St. Mer­chant,
  • Recogni­zance.
By Statute Law
  • Capia.
  • Elegit.

[Page 211] Of which I shall treat distinctly, limiting my self therein to the duty and Behaviour of Sheriffs, And first of the Capias.

Capias ad Satisfaciend is a judicial Writ and lyes where a man hath recovered in a personal Action, any Debt or Damages in the Kings Court, direct­ed to the Sheriff to command him to take the Body of the person condemned in Debt and to put him in Prison till satisfaction made.

Of Capias ad satisfaciend' against whom and Cap. ad sa. for what it lies, and the Sheriffs demeanor there­in, and retorn thereof.

It lies not against an Earl, Duke or Baron, or their Wives, except in some special cases, nor a­gainst an Heir or Executor, except in false plead­ing.

It lyes against such Presons against whom a Lyes not for a reco­very of Damages in all Acti­ons. Capias doth lye in the commencement of a Suit, as Debt, Account, Action on the Case, Trespass Vi & Armis, Annuity and Covenant; but it lies not for a recovery of Damages in a real Action.

If one be in Execution by Ca. Sa. which is re­turned, no other Execution can be sued against him, his Lands and Goods, vid. Stat. 21 Jac. 14.

A Capias is to have the Body of such an one such a day, and the Sheriff brings the Body or retorns the Writ before the day, It is good. Winch. p. 7.

If one be delivered in Execution by the Kings Writ, he is presently in Execution and in Custo­dy without Laying hands on him to Arrest him, by Cok. C. J.

The Sheriff is to be Excused for taking one Sheriff takes one by a false name by a false Name in Execution; and if the Judges admit this false Name, yet the Judicial Writ ought not to be Examined by the Sheriff, Lane Rep. 49, 52. Doyly and Jolliff.

One in Execution may not be discharged by Habeas corpus or Writ of Priviledge; and if one taken on Contempt be taken in Execution, he shall not be set at Large, Siderfin 289. Swallowe's Case. Id. p. 90.

The Sheriff may execute Process of Execu­tion Execution against one attaint of Felony. against one attaint of Felony and in Cu­stody, if he please; and if the Felony be par­doned, or the Attainder reversed, he shall be in Execution, Mo. 178, 274. Mich. 10 Car. 1. B. R. Chappel's Case.

If a man recovered Debt against B. and levy Ca. sa. af­ter a Fi. fa. part of the Debt by Fieri fac', which is Re­torned; yet he may take the Body of B. by a Cap' ad satisfac' for the residue, 4 Jac. B. R. Carter and Copping.

Tho' the King's Debtor be in Execution by his Body or his Land, yet the Subject may take him in Execution by his Body; for the Statute of 25 Ed. 3. 13. is to be intended of Executions of Lands and Goods, and not of the Body, which is tout à tout, Hobart 160. Shirley's Case.

Of Escape of one in Execution by Ca. sa. Vide tit. Escape.

Sheriffs of Bristol took the Plaintiff by a Cap' ad satisfac', and detained him in Prison until the party Defendant, and now Plaintiff, paid the Money to the Sheriff. Per Cur', This was con­trary to his Warrant, which is, Ità quod habeat denarios in Curia; and because he did not so, he is chargeable to him that was in Execution, Hetley 122. Read and Earlfield.

A Capias ad satisfac' was Retornable Quind. Retorn'. Mart. and that Writ was Retorned Album breve, and a Testatum thereupon, and the Defendant taken by it. The Testatum issued out according­ly, [Page 213] because the Capias was not Retorned. And the Court granted a Supersedeas, 1 Brownl. 40. Supersed'. Reyner and Mortimer.

Debt on Judgment in B. R. the Defendant One in Execution on Cap' ad satis­fac', ought not to pay the Money to the Gaoler. confesseth the Judgment, and Execution above an year; and not being able to find the Plaintiff, he paid the Money to the Marshal. Plaintiff Replies, he did not absent voluntarily; and the Defendant demurrs. Judgment pro Querente. The Sheriff on Cap' cannot receive the Money as on Fieri fac', nor is the party remediless, for he may pay his Money into Court, 1 Leon. 140. and have an Audita Querela; but the Plaintiff were remediless should the Gaoler be Insolvent, Dom' Rex and Javan. He on Indictment and Conviction of a Disorderly House, was Com­mitted to the Marshal for payment of a Fine, but before actual Imprisonment the Fine was paid to the Marshal; yet Resolved, this is no good payment, and the party was forc'd to pay it over again. Per Jones, It is doubtful whether Voluntary payment to the Sheriff on Fieri fac', before Execution of his Goods, be pleadable in Discharge (but that is Adjudged it is so,) much less on a Cap' which is ad satisfaciend' the party in Court, and he is Committed quousque satis­faciat parti, not the Sheriff, 3 Keb. 788. Taylor and Baker.

Verdict,

If the Issue be, Whether the Sheriff took J. S. and kept him in Prison under his Custody in Execution by force of a Capias ad satisfaciend'; and the Jury found he took him by force of an Alias Cap' ad satisfaciend'; Although it is not found he kept him in Execution for the Debt and Damages aforesaid, according to the Issue; [Page 214] yet this is a good Special Verdict. For it shall be intended; for the Consequence is necessary of that which is found, because he cannot take him, but he ought to be in Execution, Hobart, Foster and Jackson's Case.

Vide 3 Rep. 67. Westby's Case. 5 Rep. Blomfield, Garner, Frost and Drury's Case.

How Execution upon a Ca. sa. shall be sued upon a Judgment against two or more, and he shall have but one Execution; and the Execu­tion of one is not sufficient, but the Sheriff may take the Body of all in Execution. Vid. 5 Rep. 86. Blomfield's Case, and 11 Rep. Godfrey's Case.

CHAP. XVII.

What Goods, &c. of whom shall be taken in Execu­tion on Fieri facias, or not. After the Sheriff has seised, how he stands in the Eye of the Law, either to bring Actions for the Tortious taking them away, or to make satisfaction to the party who recovered. Remedy against the Sheriff for the Money to the value of the Goods taken in Execution, or not, and how to be pursued. The Sheriffs Office and Demeanor in executing a Fieri facias, and of the Venditioni exponas and the Retorn; what shall be a good Retorn on the Fieri fac', or not. Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judg­ment, and after Sale of the Sheriffs selling a Term for years taken in Execution, and when such Sale shall be good, or not. Whether a Scire facias shall go into Wales.

Of Fieri facias.

I Shall next Treat of Execution by Fieri fac'; which is a Judicial Writ, lying for him who hath recovered Debt or Damage, directed to the Sheriff, Commanding him to levy the same of the Defendant's Goods: And it lies within a year and day; but after the year there must be Scire fac'.

This Writ of Fieri facias is only against the Goods and Chattels of a man; ( viz.) Leases for years, Corn growing or sown upon the Land, or movable Goods; as Cattel, Corn in the Barn, Houshold Goods, Money, Plate and Apparel, Co. 1 Inst. 290. 6.

What Goods, and of whom shall be taken in Execu­tion by Fieri facias, or not.

Goods pawned shall not be taken in Execu­tion Goods pawned. for the Debt of him which pawned them, during the time they are pawned, Kitchin 226.

The Sheriff upon a Writ of Execution may Fornace annexed. not seise and sell to the party a Fornace an­nexed to the Freehold; for this would be Waste in the Lessee, 37 El. B. C. Day and Austin.

The Goods Ecclesiastical of Clergy-men are Bona Ec­clesiastica. not to be taken by the Sheriff, but by the Bishop, upon a Levari fac', on a Recognizance, 2 Inst. 472.

If one sell any Goods to another depending an Action against him, these Goods afterwards shall not be put in Execution; for they were lawfully bought, (if done bonâ fide, and valua­ble Consideration.) But if a Fieri facias be di­rected to make Execution of Goods, and after the Teste of the Writ, and before the Sheriff executes it, the party sells his Goods bonâ fide, they may nevertheless be taken in Execution; ( aliter now by the Statutes of Frauds and Perju­ries,) Cro. El. 174. Mo. 21. n. 72.

If the party dies after the Writ of Execution Goods in the hands of the Executor. awarded, and before it be served, the Sheriff may serve it of the Goods in the hands of the Executor. For by the Execution awarded the Goods are bound, and the Sheriff needs not take notice of his Death, Cro. El. 181. Parker and Mosse, 1 Leon. 144, 145. mesme Case.

After the Sheriff has seised the Goods, how he stands in the Eye of the Law. Either to bring Action for the Tortious taking them away, or to make satisfaction to the party who Recovered.

The Sheriff may have Trover or Trespass at election, against him that takes them away; as Wilbraham and Snowe's Case.

The Plaintiff being Sheriff seizeth the Goods in Execution by force of a Fieri fac', and after (and before the Sale of them) the Defendant takes them and carries them away, and converts them to his own use; and the Plaintiff (being Sheriff) brings his Action of Trover; and Ad­judged the Action well lies. By the Seizure of the Goods in Execution the Sheriff hath a pro­perty in them, so that he may reseize them and sell them, as well when he is out of his Office, as before, Mod. Rep. 2 Sand. 47. Wilbraham and Snow, Mod. Rep. 57. Ayre and Aden, 2 Sand. 244. Mildmay and Smith, Yelv. contra fo. 44.

Therefore Dyer 99. cited in Dalton 147. is not Law, which saith, That by the Seizure of the Sheriff, the property is not altered until they be sold.

After the Debt levied, the Sheriff is Debtor to the Plaintiff, and capable of a Release from him, the Action ceasing against the Defendant is ipso facto by the Law transferred to the Sheriff, having both the Judgment to make it a Debt, and the Levy to make him answerable; and tho' Action of Account will properly lye in this Case, yet the same will many times bear both Actions, tho' the Moneys be received by auter mains, or the like, Hob. 206, 207. Speak and Richards.

The Case is Reported by Roll▪ thus:

If a Sheriff levy Money upon a Levari facias, upon a Recognizance at the Suit of J. S. and Retorns the Writ served; J. S. may have Debt against the Sheriffs Executors. But in that Case the Plaintiff demurred to the Defendants Plea, and Concludes ill, 1 Roll. Abr. 418.

The Plea was grounded upon a Release, and Action against the Sheriff or his Executor, for levying money on the Levari and not retorning the Writ. should have demanded Judgment if the Defen­dant should be admitted to plead a Release, made after the Sheriff had made his Retorn; and in such case Action lies against the Sheriffs Executor, altho' it does not appear that the Fieri fac' on the Judgment was Retorned; for this is not material, inasmuch as the party is discharged by payment of it without Retorn: And this is not grounded on a personal Tort, but on a Contract in Law; and this is not a simple Contract, but principally grounded upon a Record, as it was Adjudged in Parkinson and Culleyford's Case.

But in an Anonymous Case, Cro. Car. 297. Action Action by Executor, for levying the Debt and not retorning the Writ in vita Testatoris. on the Case was brought by Executor against the Sheriff, who had levied the Debt in Exe­cution, and did not retorn the Writ; and after the Testator died, and the Plaintiff for that Tort, in vita Testatoris, and for the Loss which came to him, brought the Action. The Quaere was, if it lies by the Executor, because its a personal Wrong to the Testator: And the Court was divided, Cro. Car. 297.

Vide Escape.

Where and what remedy against the Sheriff for the Money to the value of the Goods taken in Execu­tion, or not.

The diversity lies on the Sheriffs Retorn. Retorn.

If the Sheriff in executing a Fieri fac' doth not misbehave himself, he shall not be charged in Debt or Scire fac', unless it appear by his Re­torn that he had the Moneys in his hands. As if the Sheriff retorn, Cepi & seisiri feci in manus meus bona & catalla ad valentiam 160 l. quae remanent in manibus meis ob defectum emptorum.

On this Retorn the Sheriff shall not be charged in Debt or Scire facias, because it appears not that he has misbehaved himself. But if upon the Fieri fac' the Sheriff Retorn, That he hath levied the Money, and doth not pay it to the Plaintiff at the Retorn of the Writ, the Plaintiff may have a Scire fac' against the Sheriff, to shew Cause wherefore the Money should not be levied of the Goods of the Sheriff, 2 Sand. 344, 345. Mildmay and Smith, Hut­ton 32. 11. Smith and Linsey.

So if in Fieri fac' to levy 200 l. Debt, &c. the Sheriff Retorns, That he had made a Warrant to his Bayliff, who had seised divers Goods of the said S. ad valentiam of 160 l. and that they were rescued out of their Custody, ita quod he could not Levy the Debt, and that the said S. nulla alia habuit bona. The Plaintiff may bring a Scire fac' to have Execution against the Sheriff for the Moneys, according to the value Retorned, and the Sheriff shall pay it out of his own proper Goods, 1 Anders. 247. Roke and Wilmot.

With this agrees, 9 Ed. 4. 50. Scire fac' 21. If Old Sheriff. Scire fac. against the old Sheriff to pay the Money le­vied in ex­ecution. the Sheriff Retorn upon a Scire fac', that he hath levied the Mony and hath the same in Court, but hath not the Money at the day, and then a new Sheriff is chosen; in this Case it being on Record, that the Money is levied by the old Sheriff, a Scire fac' shall issue against the old Sheriff to pay it. And if he cannot or will not Discharge and pay the Money, the Party shall have a Fieri fac' or Elegit against the Sheriff, of his proper Goods.

On Fieri fac' the Sheriff seised several Goods which were Mercery Ware, and Retorns Fieri fac' ad valentiam—which Retorn was Filed. The Sheriff appears and prays to amend the Retorn, because some of the Goods were impaired by ly­ing, and he could not get Buyers.

Per Cur' 1. Such Retorn may not be altered, Retorn not amendable after it is Filed. after it is Retorned and Filed.

2. Where the Sheriff Retorns Fieri fac' ad va­lentiam, this shall be no excuse of his payment of the Money, because he might have Retorned he had seised the Goods, and that they remain pro defectu emptorum, and then he may be excused, if the bona peritura perish, Siderfin p. 40. Needham and Bennet.

Therefore the Sheriffs were ordered to pay the Money, and to answer Interrogatives for their Contempt, having been ordered to bring in the Money, and not appearing till a Tipstaff was sent.

As to amendment of Retorns. Matter of Form Amend­ment of Retorn. in a Retorn is amendable, but not matter of fact; which goes to justification of the Imprisonment, 2 Bulst. 259. Dr. Alphouses's Case.

The Sheriff Demeaner in Executing the Fieri fac'.

If the Sheriff have a Fieri fac' against a Mans Tresp. ver­sus vicount Goods, and before Execution he pay him the Money, in this case he cannot do Execution af­ter, and if he do, an Action of Trespass or false Imprisonment lies against him, B. R. p. 12 Jac. 1.

As to breaking open Houses to do this Execu­tion vid. supra.

The Sheriff upon a Scire fac' cannot deliver Cannot de­liver Goods in satisfa­ction of the Debt. the Defendants Goods to the Plaintiff in satisfa­ction of his Debt, but must retorn the Execu­tion in Court, Cro. El. 504. Tompson and Clark Noy 56. Mesme Case.

Action on the Case was brought against the Sheriff, for fraudulent omission of Execution of Goods that were in Conspectu suo; but he saith not in his Declaration, that he knew them to be the Goods of the Defendant in that Action: And for this omission after Verdict Judgment was Arrested, by Twisden and Windham, 1 Keb. 946. The gift of the Action is the fraud, which cannot be without notice, which is now wrapt in the Verdict, tho' it could not be pleaded, the Sheriff being bound to take notice whose Goods they are, Russel and Comber.

On Fieri fac' against J. S. who has the Goods of Sheriff sells the Goods of J. S. a strange Security. A. in his possession, if the Sheriff sell these Goods, Trover or Trespass will lye against him; and to prevent this, all the Sheriffs of England take Security, Keb. 693. Sander's Case.

Quaere if the Seriff may take Bond for his Secu­rity: But the safest course is, for the Sheriff to enquire by a Jury in whom the property of the Goods is, or else not to meddle with any such Goods, which do not plainly appear to him to [Page 222] be the Defendants, and it being found by the Jury, that excuseth the Sheriff.

Pleading by the Party, who has paid the Money to the Sheriff.

In Detinue the Plaintiff had Judgment, and brought Scire fac' to have Execution. Defendant pleads, that upon a Distringas to the Sheriff on that Judgment, he delivered such Goods to the Sheriff, and for the residue that they were ap­praised at so much by Inquisition taken by the Sheriff, and that he delivered the Money to the Sheriff, but he doth not aver this matter to be Retorned by the Sheriff; its a good Plea, for otherwise the Defendant should be prejudiced, for he might have twenty several Executions served against him upon one Judgment; and he should be put to his remedy against the Sheriff only, who may be insolvent. And it is a less mischief to inforce the Plaintiff, if his Plea be true, to take his Action for it against the Sheriff, and if it be not true, to take Issue thereupon, Crok. El. 390. Atkinsons Case.

Now if the Sheriff levy Goods by force of a Where the Plaintiff shall have a new Fieri fac', or not. Defendant discharged upon seis­ing the Goods by the Sheriff. Fieri fac', and delivers them not to the party, nor retorns the overplus, the Plaintiff may have a new Fieri fac', because a Record shall not be avoided by a matter in Fact: But by the taking the Goods of the Defendant to the value of the Debt by the Sheriff, the Defendant is discharg­ed, altho' the Sheriff do not satisfie the Plaintiff, therefore he shall not have a new Execution, 2 Rolls Rep. 57. p. Jac. 1 Rolls Ab. 902.

Where a Sheriff on a Fieri fac' Retorns, that New Exe­cution. he had seised Goods of lesser value which were rescued, and that nulla alia bona, &c. the Plain­tiff may not Sue a new Execution, but only for the surplus beyond the value of the Goods rescued, 2 Sanders 344. Mildmay and Smith.

If the Sheriff levy Money in Execution, the Lord Keeper cannot order the Money shall stay in the Sheriffs hands, or order that the Plain­tiff shall not call for it, Marsh Rep. 54.

If the Sheriff shall Retorn Fieri feci, sed non inveni emptores, then a Venditioni exponas shall go out.

Of the Sheriffs Selling Goods on Fieri fac', and of the Venditioni exponas.

As to what Sale is good or not.

If the Plaintiff tenders the Debt, its a wrong for the Sheriff to sell the Goods, 1 Keb. 655. Le­fans Case.

If Goods remain in the Sheriff hands, for de­fault of buyers, and there perish, the Sheriff shall not be chargable. But if the Sheriff refuse a buyer, Action on the Case lies, 2 Keb. 464. Need­ham's Case.

The Sheriff took the Defendants Goods in After sei­sing the Goods and before sale a Superse­deas. Execution by Fieri fac', and before Sale the Re­cord was removed by a Writ of Error into the Exchequer Chamber, and a Supersedeas awarded; and the Sheriff retorned upon the Fieri fac', sei­sure of the Goods, and that they remained in his hands pro defectu emptorum; and he also re­torned, that a Supersedas was awarded, &c. and hereupon it was prayed for the Defendant, that he might have restitution of his Goods. Crok. Eliz. 597.

But per Curiam, Altho this Record be removed, and notwithstanding the Supersedeas awarded, in regard it came not to the Sheriff, till he had begun to make Execution, as appears by his Retorn, that a Venditioni exponas shall be award­ed Venditioni exponas. to perfect it▪

And altho' the Plea Roll be removed, yet it shall be awarded on the Retorn of the Fieri fac' which remains still in the Office. But as it is in 1 Keb. 324. Brownwood and Estwel, if the Error were allowed before seisure, then tho' the Sheriff be unpunishable in that Case, yet Supersedeas notwithstanding Execution done shall go, quia improvide, &c.

And per C [...]riam if the Goods be sold, the Money may be brought into Court to be resto­red to the Party; but if not, the Goods may in Goods re­stored in specie. specie be restored.

But if before Sale a Supersedeas comes to him, Under sale. if the Sheriff after Sells the Goods without a Writ of Venditioni exponas, this is void. p. 8. Car. 1. Scarling and King.

The Sheriff sells Bricks for 7 s. per thousand on the place, for which he might have 16 s. per thou­sand. The question was, Who should pay the overplus, the Buyer or the Sheriffs Executors. And per Curiam, The Sheiffs Executors shall pay the overplus; the Sale being absolute, and not an Argeement to Sell, 3 Keb. 285. Cutten and Hunt.

The Sheriff perswaded the Jury to prize the Goods at undervalue, and so sold them. This is an Oppression enquirable at the Assizes by In­dictment, Crok. Jac. 426. Cayers's Case.

If the Sheriff upon a Fieri fac' against J. S. Where the old Sheriff after a Writ of discharge may sell. seise certain Wood whereof J. S. was possessed, and the Sheriff pay parcel of the Money received, and does not Retorn his Writ, and after the Sheriff is removed and another Sheriff chosen, and after the Writ of Discharge delivered to him he sells the Wood, this is a lawful sale, because by the seisure altho' the Writ is not retorned, he is chargeable to the Party, Tr. 3. Jac. B. R. Cro. Jac. 73. Ayer and Aderly. And there a Distrin­gas issued to the new Sheriff to distrain the An­cient Sheriff to expose to sale, which does not give to him Authority to sell, but compells him to do that which he might do by Law. But if upon a Fieri fac', the Sheriff Retorns that he had seised the Goods, but non invenit emptores, and But the old Sheriff after re­moveal may not sell upon non invenit emptores retorned. Venditioni exponas. after he is removed, and a new Sheriff made, the old Sheriff may not sell them after, tho' a Di­stringas come to him, and if he sell them the sale is not good, for the new Sheriff must sell them, P. 32. El. Dodd and Conney, 2 Latch 117, Dixson's Case.

A Venditioni exponas may not be awarded, if it appear that the Goods are out of the Hands of the Sheriff, 2 Sanders 344. Mildmays Case.

What shall be a good retorn of the Sheriff on a Fieri fac' or not.

Note, If the Sheriff do make Execution on Where there needs no Retor [...] on Fieri fac'. Fieri fac' tho' he never retorn the Fieri fac', yet the Execution is good. Aliter in Elegit. Vid. infra, And if the Sheriff levy the Money and give it the Plaintiff, tho' he never make any Retorn to the Court, it is good enough. 4 Rep. 64. Full­woods Case, and p. 90. Hoes Case.

The Bayliff of the Savoy levied Goods, and yet Retorns nulla bona on Attachment, and for causesaith, that one V. at the time of the Execution shewed a Bill of Sale on good consideration, whereby if he executed, he was liable to an Action: and therefore, without Security to save Security to the Sheriff. him harmless, he refused to make any other Retorn; which the Court agreed, and ordered the Money to be brought into Court, and as the Trial goes between the Sheriff and V. the retorn to be amended or not, 1 Keb. 901.

Upon a Fieri fac', the Sheriff retorneth qd' nihil habet, this is not good without saying further, nec habuit post receptionem brevis, 39 H. 6. Fitz. Ret. 30.

On Recovery of Debt on Fieri fac' directed to Ret' quod Clericus est beneficiatus the Sheriff of London, he retorned qd' Clericus est beneficiatus in Ely. The Court conceived this retorn improper, in regard there should have been a suggestion on the Roll, after the retorn made by the Sheriff of London, that the Defen­dant had Goods in Ely, and that the Sheriff of that County should have made this Retorn of Clericus beneficiatus. Now if the Sheriff of London retorn nulla bona, but that he is Clericus benefi­ciatus in Ely, thereupon went a Fieri fac' to the Bishop of Ely on Testatum, and he retorned that he had nulla bona Ecclesiastica; this retorn by some is not good, but he ought to Retorn a Sequestration, having admitted him to be Clericus beneficiatus; but he is not estopped to say, that he is not Clericus beneficiatus by the Retorn of the Sheriff. The Court agreed, the Fieri fac' well directed to the Bishop and not to the Sheriff, but they conceived it a good Retorn, and if it be false the Plaintiff may have his Action on the Case, 1 Keb. 497. 2 Keb. 83. Picard and Payton.

On a Statute, if the Sheriff retorn quod est Clericus beneficiatus nullum habens Laicum feod' nec bona nec catalla, but that he is beneficiatus in such a Diocess, then a Writ of Sequestration shall go to the Bishop to Sequester the Profits, and to deliver them to the Conisee until he be satisfied, 2 Rolls Abridgm. 474. Pope and Bau­tree.

If there be false Retorn on a Fieri fac', the Action on the Case on a false Retorn on Fierifa [...]. remedy is by Action on the Case. In a Fieri fac' to the Sheriffs of London, they Retorn nulla bona, but that he is Clericus beneficiatus in Ely; upon which a Writ issues to the Bishop of Ely, and he retorns nulla bona Ecclesiastica: If it be so that he hath a Spiritual living, the Plaintiff may have Action on the Case against the Bishop, Siderfin p. 276.

The Party may aver the value of the Goods greater than the Retorn, but the Sheriff is E­stop't, 2 Keb. 789, 821.

Retorn of a Fieri facias.

VIrtute istius brevis Fieri fe [...]i de bonis & catallis terris & tenementis infranominat' R. B. ad valentiam 200 l. & illa de die in diem venditioni exposui & i [...]de vendidi ad valentiam 100 l. Qu [...] quidem centum libras ad diem & locum infra Con­tent' parat' habeo ad reddend' infranomin [...]t' J. W. prout interius mihi praecipitur, & resid' bonorum & catallorum praedict' adhuc penes me remanen [...] i [...] ­vendit' ob defect' emptorum.

VIrtute istius brevis cepi bona & catalla A. W. infrascript' ad valentiam omnium denariorum infrascript. Et illa venditioni exposui ad quod non­dum inveni emptores. Et ideo denarios infraspecifi­cat' habere non possum ad diem & locum infra­content', prout mihi praecipitur.

Other Forms of Retorns, vid. Dalton, cap. 61.

Of Restitution to Lands or Goods seised by the Sheriff, after Reversal of the Judgment, in what Cases it shall be, and in what not.

If a man recover Damages, and had Execu­tion by Fieri fac', and upon a Fieri fac' the Sheriff sells the Term for years to a Stranger, and after the Judgment is Reversed, he shall only be restored to the Moneys for which the Term was sold, which was by default of the party, and not to the Term it self; because the Sheriff had sold this by Command of the Writ of Fieri fac', Dyer 363. 8 Rep. 143. Dr. Drury's Case, 19. b. Matthew Manning's Case, 5 Rep. 90. b. Hoe's Case.

So if the Goods of a man Outlawed be sold by the Sheriff upon a Cap. Utlagat. and after the Outlawry is Reversed by Writ of Error, he shall be restored to the Goods themselves; be­cause the Sheriff was not compellable to sell these Goods, but only to keep them for the use of the King, 5 Rep. 90. Hoe's Case.

But upon Fieri fac' he shall have Restitution only to the value:

1. Else none would buy.

2. By Fieri fac' the Sheriff is compellable to levy the Debt upon the Goods: One is compulsio, the other voluntas, 8 Rep. 143. Dr. Drury's Case.

If a man recover Damages, (as suppose in a Writ of Covenant) against B. and had Elegit of his Chattels, and of the moiety of his Lands; and the Sheriff upon this Writ delivers a Lease for years of Land which B. had, to the value of 50 l. part of the Sum recovered, and after B. Reverseth the Judgment; he shall be restored to the Term it self, and not to the Value. For tho' the Sheriff might have sold the Term upon this Writ; yet here is not any Vendition to a Stranger, but a delivery of a Term to the party who recovers, by way of Extent without any Sale, and therefore the Owner shall be restored: For the Sheriff is not bound by this Writ to sell the Term, as he is in a Fieri fac', Pasch. 16 Car. B. R. Buckhurst and Mayo.

Quaere, For this is a Sale; all the Term being delivered to the party according to the value in gross, and not annual, 1 Roll. Abr. 778.

So if Personal Goods were delivered to the party per rationabile pretium & extentum, upon Reversal of the Judgment he shall be restored to the Goods themselves for the same Rea­son.

Lessee for 99 years, by his Will devised his Lease in these words; ( viz.) I devise my Lease to my Wife during her Life, and after her death, I will, that it go to her Children unpreferred; and made his Wife Executrix and dyed. The Wife entred and married with J. S. and afterwards for 140 l. Debt recovered against J. S. on a Fieri fac' the Term was sold by the Sheriff, and afterwards the Judgment was reversed by Writ of Error, and awarded, quod omnia quae

amifit ratione judicii restituantur. The Wife (the Executrix) died. And per Cur' These Points were Resolved:

1. The Executory Devise of the Lease after the death of his Wife to the Daughter (Un­preferred) was good.

2. That the Sale made by the Sheriff upon the Scire fac', did not destroy the Executory De­vise.

3. That sale made of the Term by the Sheriff stood good, altho' the Judgment was Reversed; and the Plaintiff (the Daughter) shall be resto­red to the value of the Term, but not to the Term it self; and yet the Vendee had an abso­lute property in the Term during the Life of the Wife, Mich. 27 El. B. R. Amner and Lodington, 8 Rep. 96. Manning's Case.

A Judgment in D. being Reversed in B. R. a Writ of Restitution was awarded, and to enquire what were the Profits of the Land recovered à tempore judicii; (videlicet) 7 Aug. 19 Jac. And the Inquisition retorned, That they amounted to 10 l. Per Cur', The Writ is ill; for it ought not to have been, what the profits of the Land amounted unto from the Judgment. For the Plaintiff is not to answer the Profits longer than from the time of the Execution sued. Then there was a new Writ of Restitution, which was, What profits of the Land the Plaintiff (who recovered) had taken colore judicii praedicti, which was 2 Aug. 19 Jac. and after the Reversal thereof, Cro. Jac. 698. Sympson and Juxon.

Form of the Retorn.

J. G. & alii infranominat' nihil habent nec eorum aliquis nihil habet in balliva mea, unde resti­tutio bonorum & catall' infrascript' infranominat' W. M. habere facere potui: Necnon 24. l. infrascript' eidem W. M. fieri facere potui prout, &c.

Virtute istius brevis mihi direct' (tali die & anno infrascript') tenement' infrascript' cum pertin' re­seisiri & infra-nominat' T. & H. plenam possession' & seisinam inde restitui prout interius mihi praecipi­tur.

Of the Sheriffs selling a Term for years taken in Execution, and when such Sale shall be good, and when not.

For the understanding how the Law is in this Where it shall be in the Electi­on of the Sheriff upon Fi. fac. to him directed to sell a Term. or deliver it on Extent. Point, you must observe a diversity between the sale of a Term on a Fieri fac', and Extent on an Elegit; for the Elegit is, Quod per Sacramentum XII. proborum, &c. per rationabile pretium & exen­tum, That they Appraise the Goods and Chattels of the Debtor, and extend his Lands; and therefore if they are not Appraised by the Jurors, he cannot sell them, (as Dyer so. 100. and so is 5 Rep. Palmer's Case.) Execution by Elegit ought to be per Inquisitionem per Stat. W. 2. c. 18. which saith, ( per rationabile pretium) which ex­tends to Chattels, and per extentum, which refers to Lands. In Elegit the Goods are to be deli­vered to the party per rationabile pretium; but in Fieri fac' the Sheriff must sell the Goods, 1 Keb. 566. Glasswell and Morgan.

In Elegit the Term may not be extended Difference between the Extent of a Term on Elegit, and Sale by Fi. fa. without shewing the certainty of the Com­mencement; for after the Debt satisfied the party is to have his Term and Remainder. But upon Fieri fac' the Sheriff may sell, and his Re­torn is general, quod fieri feci de bonis & catallis, 5 Rep. Palmer's Case.

Now the Sheriff is to be careful in the sale Recital of a Term in the Sale of it. of a Term on Elegit, if he make particular Reci­tal, that there be no mistake. But a general Recital is better: As,

In Ejectment it was found by Special Verdict, that the Sheriff upon an Elegit impannelled a Jury, who found that the Defendant was possessed of a Lease for 100 years, which began at Mich. 2 & 3 of Ph. & M. ubi revera, as it was found it begun Mich. 3 & 4 of Ph. & M. cujus quidem H. statum interesse & terminum in tenementis prae­dictis praedict. Juratores appretiarunt ad 80 l. and the Sheriff sold it to the Lessor of the Plaintiff for 80 l.

Now the Inquest found one thing, and he sells another (as this Case was,) and the Sale not being warranted by the Inquest is void. But had the Inquest found he had been possessed of such Land generally for the Term of divers years to come, and they had Appraised it for so much, without shewing the certain beginning or determination, it had been well enough, for they shall not be compelled to find a Certainty, not having means to be informed thereof; or if the Sheriff sells all such Interest which the De­fendant had in the same Term, the Sale had been good, 5 Rep. Palmer's Case.

So is Sir G. Sidenham's Case in B. R. The In­quest on a Fieri fac' found that the Defendant was possessed of such a Term, and mistook the Date, and the Sheriff sold it; the Sale was not [Page 233] good. And on the New Fieri fac' the Court directed that it should be found, That he was possest of a Lease for years generally, and yet continuing, and that he sold it, Cro. El. 584. Palmer's Case, 4 Rep. 74. mesme Case.

W. and his Wife possessed of a Term in Baron and Feme. right of the Wife, as Administratrix to C. W. being indebted, granted it to B. to the use of W. and his Wife for their Lives, and afterwards to the use of B. himself. W. is sued for this Debt, and Recovery against him, and a Fieri facias being awarded to the Sheriff, he for this Debt of W. sold the Term What Term not exten­dible. to the Plaintiff. Per Cur'. This Grant of the Term to the use of the Grantor himself is not void per Stat. 1 H. 7. for this Grant is not to avoid Creditors: For the Term being in right of the Wife as Administratrix, and if it had so continued in the hands of W. and had never been granted, this was not extendible for the Debt of W. and if W. had it as Executor himself, it was not extendible for his proper Debt, and Fraud shall not be intended except expresly Fraud not to be intended. found; therefore the Sale is good, Cro. El. 291. Ridler and Punter.

W. had Execution out of the Kings-Bench by Officer first sells on one Judgment and deli­vers upon another, pretending the first Judgment was frau­dulent. The Sale shall bind the King. Scire facias, of a Term, which was sold by the Bayliff of a Liberty. After, upon another Judg­ment the Bayliff delivers this Term to another, pretending that the first Judgment and Execu­tion was fraudulent. But per Cur' it is not well done; for he is not a Judge of Fraud, and the Court will not allow such pretence to Sheriffs and Officers, Latch. p. 53. Warrington's Case.

If the Sheriff extend or sell a Lease, this Sale shall bind the King (as to his Debt,) because it is but a Chattel, and there was no Covin, 8 Rep. 171. Sir Gerrard Fleetwood.

Upon an Execution against the Husband for Sell the Wises Term for the Debt of the Baron. his Debt, the Sheriff may sell the Wives Term during her Life, Co. Lit. 351. a.

The Form of a Retorn of Fieri feci on a Fieri facias. Vide Dalt. c. 61.

Whether a Fieri fac' upon a Judgment in the Kings-Bench shall go into Wales.

Plaintiff recovers a Debt against the Testator in B. R. the Action was laid in London; and after the Death of the Testator the Plaintiff after Judgment in Scire fac' sues a Fieri fac' at London, upon which the Sheriff retorns nulla bona, by which he sues a Testatum fieri fac' to the Sheriff of Montgomery in Wales, directed to levy the Moneys recovered de bonis Testatoris in manibus Executoris. Upon which Writ the Sheriff Retorns this:

EGo C. L. Baronet', Vic. infra-mentionat' Comit' Montgomery domini Regi humillime Certifico quod infra specificat' Comitat' Montgomery est un' duodecim Comitat' infra Principalitat' sive Domi­nium dicti Dom' Regis Walliae ubi Breve Domini Regis ipsum regem minime tangen' non currit, quodque non patet per istud breve quod idem breve dictum Dom' regem ullo modo tangat, unde advi­sament' Curiae dict' Dom' Regis coram ipso Rege humillime imploro si mandatum istius brevis exequi poterim.

C. L. Baronet, Vic'.

The Sheriff on this Retorn was amerced, Sheriff not to dispute the Juris­diction of the Court. and that the Plaintiff should have a new Writ. For the Sheriff by his Retorn ought not to dis­pute the Jurisdiction of the Court, to which he is a Minister: But if the Court erroneously award [Page 235] Process which was not to be awarded, the Sheriff ought to obey and execute it; but the party grieved may shew this Matter to the Court, and pray that they will supersede their Erro­neous Process, and so have remedy.

But as to the Question, vid. 2 Sand. 194. Draper and Blaney, 2 Keb. 657. Draper's Case 715.

Elegit lies into Wales, and so doth Execution on a Statute Merchant, and that breve Dom. Regis non currit in William, is intended of Originals, not on Judicials, 3 Keb. 170. Witrong and Blaney, 1 Bulstr. 54. Hall and Rotheram, Cro. Jac. 484.

A Capias on a Fieri fac' lieth into Wales, 2 Keb. 715.

It was the Opinion formerly, that a Fieri fac'. on Original Judgment in B. R. doth not lye into Chester, Vvales, &c. but as Dyer, the Court shall send the Record and Writ thither. And in Action of Debt there it may be; but its granted every day into Lancaster, VVales, &c. 2 Keb. 410. The King versus Needham and Bennet.

A Writ of Execution goes into VVales, and 27 H. 8. c. 26. makes this plain; for by it VVales and England are annexed, PLowd. fo. 200. Strad­ling and Morgan.

CHAP. XVIII.

How the Sheriff is to demean himself in giving Possession and Seisin upon the VVrits of Habere fac' possessionem or Seisinam. As to the man­ner of doing, or the retorn of a Supersedeas. VVhere it shall stay the Sale of Lands or Goods, or not. VVhat amounts to a Supersedeas. VVhere and when a VVrit of Error is a Supersedeas. Of Audita Querela.

IN all Cases where the Execution of a Judg­ment, The Sheriff to make Execution of the thing at his peril. in which the Demand is of a thing certain; If the Sheriff do this thing, he is not any Disseisor. But where the Execution is in the generalty, without mentioning of any thing in particular, there the Sheriff ought to make Execution of the right thing at his own peril, Diversity. otherwise he shall be a Disseisor; for he is bound to take notice of it, and he had not any War­rant from the Court to make Execution of any but the right thing. As if a man recover in Assize divers Houses, and after the Tenant re­verseth it in a Writ of Error, and a Writ of Execution issues to the Sheriff, to put him in possession of the Houses which he had lost by the Judgment, altho' the Tertenants are Stran­gers to the Recovery, and for this they ought not to be ousted without Scire facias against them; yet if he do Execution by putting them in pos­session by force of this Writ, he shall not be any Disseisor, for that he hath the direct Autho­rity of the Court to do it, Pasch. 15 Jac. Floyd and Bethel.

So in Judgment for the Casual Ejector for 47 Houses, and on Habere facias possessionem the Sheriff turns out these 47 Tenants, and 80 other Tenants, without any Process or Plea against them. Per Cur'. We will not grant any Writ Trespass against the Sheriff for wrong executing Possession. to supersede the Execution against the 80 Te­nants; for if it should be, it ought to be quia erronice, and there was not any Error in the pro­ceedings against them, because there was not any proceedings. But they did Advise, that every one should bring Trespass against the Sheriff, 2 Si­derfin 155.

If the Sheriff do deliver possession of more Case against the Sheriff for delivering more Acres than are in the Writ. Diversity. Acres than are in the Writ, this makes not the Writ erroneous; but in such case Action on the Case lies against the Sheriff for doing it; or an Assize against him that hath the possession deli­vered to him for the Surplusage of the Land. But if the Writ of Hab. fac. possess. to deliver possession to the Plaintiff of Lands recovered by him in Ejectment, contains more Acres of Land than were in the Declaration, the Writ is erro­neous, Pract. Reg. 131, 132.

Trespass lies against the Sheriff, if he does not Execution must be done in the right places. execute on the right places, 1 Keb. 278. Lufton's Case.

If a man bring Ejectione firmae of 40 Acres of Land and recovers 30, and not the residue; upon the Writ of Execution the Sheriff may deli­ver to him any, ( viz.) three or more in the Name of all, without setting out the Land recovered Where possession of some in the Name of all, good or not. by Metes and Bounds, altho' the Plaintiff had not recovered all the Acres whereof he had brought this Action, and whereof he had supposed the Defendant Tenant. But if a man be to be put in possession of divers Messuages upon a Writ of Execution, and the Houses are in possession of several men, he ought to go to every House [Page 238] particularly, and to deliver Seisin of it, and the delivery of Seisin of one in the name of all is not sufficient; for he ought to deliver plenariam Seisinam, Trin. 15 Jac. Floyd and Bethell's Case.

In Formedon on Non-tenure of three Messuages In what Case the Plaintiff is to shew to the Sheriff what part the Jury intended. the Jury found he was Tenant of one of the Messuages, and not of the other; the Plaintiff may have Judgment, and a Writ to the Sheriff to deliver Seisin: And the Plaintiff at his peril is to shew to the Sheriff what Messuage it was the Jury did intend; for the Jury is not tyed to set Bounds to it, Cro. Eliz. 256. Scriven and Prince.

If a Writ of Execution goes to the Sheriff, to Acres that are to be delivered, must be according to the U­sage of the Country. Of Rent or Common. Seisin of Rent or Common by Parol. put a man in possession of 20 Acres of Land, the Sheriff ought to give him 20 Acres in quan­tity, according to the Usage of the Country where it lies, and not according to the Statute, Floyd and Bethel.

If a man recover Rent or Common, upon which a Writ issues to the Sheriff to put him in possession, and the Sheriff comes upon the Land, and delivers to him seisin of the Rent or Com­mon by Parol, that is well made, and the Reco­veror is in actual possession of this, 22 Assize 84.

If the Under-Sheriff delivers Possession rio­tously Riotous possession by Under­sheriff, Attorney in C. B. not to be enquired of by B. R. without Informa­tion. on Extent on a Statute Merchant, and the Sheriff refuseth to Retorn any Jury to enquire of the Force, and he was an Attorney of the Common-Pleas, the Court of Kings-Bench, unless the Cause were depending, cannot take notice of the Offence without an Information, 2 Keb. 541. Morgatroyd versus Peebles, Vid. Mo. 781, & 462.

VVhere shall be a New Execution or not, and of the Sheriffs Retorn on this VVrit.

ThemRecoveror is put in possession by Habere fac. possessionem, and the Defendant ousts him again; What remedy?

In 2 Brownl. p. 216. Stile's Case in B. R. by After Pos­session and Ouster what remedy. New Exe­cution. Retorn. VVilliams, he cannot have a New Writ of Exe­cution, but is put to his New Action, and the filing of the Writ is not material; for it is within the Election of the Sheriff, whether he will file or retorn it, or not. But if the Exe­cution had not been fully made, as in the Exe­cution of an House, some hid themselves in the upper Rooms, and when the Sheriff was gone they came down and ousted those that the Sheriff had put in possession before; in such a Case a New Writ of Execution was awarded. By the Chief Justice, In this Case of Re-entry the Court may award an Attachment against him, for Contempt against the Court.

But in Peirson and Taverner's Case, the Reco­veror is put in possession by Hab. fac. possess. and the Defendant ousts him again; if the Writ be not Retorned, the Plaintiff shall have a New Retorn. Hab. fac. possess. 1 Roll. Rep. 353.

And if Hab. fac. seisinam be executed, it is good without Retorn; yet the Court may com­mand the Sheriff to Retorn it, 1 Roll. Rep. 77.

On Habere fac. (seisinam) the Sheriff cannot Retorn, That another is Tenant of the Land by Right, for that cannot come in Issue between the Demandant and him, and therefore he ought to execute the Writ, 6 Rep. 52. Boswell's Case.

Upon Habere fac. possess. the Sheriff retorned, Retorn. That in the execution of the said Writ he came to the House recovered, and removed out all the persons he could find, and delivered to the Plaintiff possession and departed; and soon after Three persons secretly Lodged in the House expelled the Plaintiff: On Notice where­of he returned again to the House to put the Plaintiff in full possession; but the others re­sisted him, so that without peril of his Life he could not do it, 1 Leon. pag. 145. Upton and Wells.

On this Retorn the Court awarded a New New Hab. fac. possess. Execution. A Writ of Habere fac. possess. was directed to the Sheriff; a Writ of Error was brought, and a Supersedeas granted, directed to the Sheriff to stay Execution: And the Super­sedeas was shewed to the Sheriff as he was going to do Execution; yet he refused to obey Execution by the Sheriff after a Superse­deas. it, and did Execution notwithstanding. This is a great Contempt in the Sheriff, and the Court ordered a Writ of Restitution to be granted, 2 Bulstr. 194. Thomas and Owen.

Retorn of Habere fac' possessionem.

VIrtute istius brevis mihi direct' Justiciariis infrascript' Habere feci (quod tali die & anno infrascript') Habere feci A. G. plenam seisinam de un' Messuag' cum pertin' in S. infra-specific' in omni­bus prout istud breve exigit & requirit.

Note, The Sheriff in Cases where Land is re­vered, is to put the party in possession and seisin by a Twig, Clod, &c. of an House by the Key, &c. of Rent by Corn or Grass, growing on the Land, out of which the Rent Issues. 6. Rep 52.

It is no good Retorn, that another is Tenant of the Land by right, or that he has nothing in the Land.

Seisin of the Land in one Vill in the name of all the Lands in 3 Vills; is good.

Retorn of Habere fac possessionem.

VVirtute istius brevis mihi direct. 24 die Maij Annot. infrascript. habere feci infra nominat▪ H. H. possessionem termini sui infrascript. de t [...]n [...]m [...]n­tis infrascript. cum pertin. prout interius mihi praeci­pitur. Dalt. c. 63.

Infra nominat. R. B. Miles nulla habet bona so [...] catalla terrat aut tenementa in balliva mea unde denar. infraspec. Fieri facere possum prout Interius mihi praecipiter.

Of Supersedeas.

If the Roll be marked for a Writ of Error What a mounts to a Supersed. before Execution done, the Sheriff shall be ex­cused for doing it before a Supersedeas delivered, but this is sufficient to supersede the Execution. Where Writ of Error is a Super­sedeas or not, and when. 1 Keb. 12. If a Writ of Error be brought, and shewed to the Attorney, if Execution proceed, a Supersedeas quia erronice may go. But in Noel's Case. 2 Keb. p. 33. Error brought and shewed to the Attorney, is no good Supersedeas, till it be shewed to the Clerk of the Errors.

Till the Roll Marked, or the Writ delivered unto the Officer in Court, Writ of Error is no Supersedeas, especially after the Retorn of it. 3 Keb. 171.

The party ought to take notice of a Recipitur upon the Record if it be Entred, and if the par­ty take not out Execution after the Writ of Er­ror allowed, it is a Contempt, else not; and the Attorney is not bound to view the Record, if a [Page 242] Writ of Error be brought, but may take out Execution, if there he not a Supersedeas, or no­tice given to the party. Stiles Rep. 105. Winn and S [...]bbins. 'Its the duty of the Clerk of the Er­rors to mark the Roll and not the Attorny. Stiles Rep. 159. Mercer and Rule. A Writ of Error is duly persued, tho the Roll be not marked and if neither the Roll be marked nor notice given to the Attorney of the other side of the bringing the Writ of Error, if the party proceed to take out Execution it is no Contempt to the Court.

Marking the Roll, paying Fees for, or allow­ance Where and when a Writ of Error is a Supersed. or not. by the Chief Justice of a Writ of Error is no Supersedeas, unless actually taken out before Execution, per Touisden. Error brought and shew­ed to the Attorney, is no Supersedeas until it be shewed to the Clerk of the Errors, which is an Allowance in Court, and therefore if Execution be done before it be allowed by the Judge, or shewed to the Clerk of the Errors, it is well done, because the Attorney otherwise would never have it allowed, but only shewed to the Attorney of the other side; but if he shew it, and declare his Intention to have it speedily allowed, there Ex­ecution is superseded in the mean time, but yet if Bayl be not given according to the Statute, the Execution may be well done, which the Court agreed. 1 Keb. 33. Noel's Case.

Formerly ( per Hales), if Execution were gone out before a Writ of Error delivered, or shewed to the party, it was not to be a Supersedeas, and by him it shall not be a Supersedeas, unless shewed to the pary, and must not foreclose his time in having it allowed, for if it be not allowed by the Court within four days it is no Supersedeas, and a Writ of Error taken out, if it be not shew­ed to the Clerk of the other side and allowed by [Page 243] the Court, it is no Supersedeas to the Execution. Mod. Rep. 112.

The Sheriff makes his Warrant to a Bayliff to Time of the delive­ry of the Supersed. take the Body of &c. Upon a Ca. Sa. and before the Warrant executed, the Sheriff receives a Su­persedeas, and the Bayliff having no notice pro­ceeds; yet the Arrest is not lawful, but the Bay­liff is excusable in Tresspass. Moor p. 677. Prince and Allington.

One purchaseth a Supersedeas, and doth not de­liver it to the Sheriff till after the fourth County day, and then he is Outla wed, yet the Outlaw­ry Outlawry is void. Moor. n. 73. Ca. sa. was delivered to the Sheriff of E. at 11 Clock, and a Warrant there­upon made to the Bayliffs, 4 hours after a Super­sedeas comes to the Sheriff, and a Warrant upon this Supersedeas delivered to the Goaler to set the parties at liberty if they were Prisoners, who upon it were discharged. Per. Cur. the Sheriff hath done well, being the same day, Lit. Rep. 296. Porter and Corbet.

Fi. Fac' to the Sheriff to Levy the Debt, and the Defendant brought Error, and had a Super­sedeas; so much Mony as the Sheriff had receiv­ed before, shall go to satisfaction, and a Venditi­oni exponas shall issue upon it. Yel. p. 6. Tocock and Honyman.

Supersedeas, as to Goods seised is a Supersedeas Where a Supersed. shall stay the Sale of Goods or not. as to Sale; but if the Sheriff hath received the Mony he must return it into Court, 3 Keb. 174 Mud and Warren; and it is not discharged by the Supersedeas. And the case was, a Supersedeas came before Execution, but in truth after Goods seised and before Goods sold, but after the Sheriff had taken security for the Mony, and discharged the Execution; Sheriff returns that he had received a Supersedeas out of Chancery in the nature of an Aud. Querela, It is not good, because the Record was [Page 244] not there 1 Rol. Abridg. 383. Merston and Man­nory.

A Certiorari delivered to the Justices of the Peace after Restitution awarded, and before it be executed by the Sheriff, is not a Supersedeas to the Sheriff, unless the Justices make a Supersedeas upon it, which if they do not, they are fineable for the Contempt. Mo. Rep. 673.

Note, By the Stat. 16. and 17. Car. 2. c. 8. All stays of Execution by Supersedeas on VVrits of Error after Verdict, are taken away; but the other remains as they did.

Aud. Quer. on escape where it lies or not, or upon o­ther Execution by the Sheriff, not well made and delivered.

Vide infra sub titulo, where the Escape of one shall be a discharge of the other, or not.

Audita Querela, is an Equitable Writ, and not to be allowed without Equity.

If one in Execution escape of his own wrong, he shall never have Audita Querela to discharge himself; and the Goaler may retake him; but if he escape with the consent of the Gaoler the the Gaoler cannot take him again, and if he do, the party shall have an Audita Querela. Cro. Car. 240. Robinsons Case, 1 Rol. Abridg. 307. Trevillian and the Lord. Roberts.

So if the Sheriff Arrests one in Execution, and doth not retorn the Writ, but suffers him to es­cape, and upon the alias Capias, he Arrests him again, Audita Querela lies. Mo. 57. n. 163.

But where two were bound joyntly and seve­rally, one was condemned and taken in Execution, after the other was sued, condemned and taken, the first escapes, the other shall not have Audita [Page 245] Querela, for there must be satisfaction in part. 5. Rep. 67. Blomfields Case.

A word that is surplusage, shall not avoid this Writ, as in Arundels Case: The Audita Querela comprehended, that M. had recovered against the Plaintiff in Debt, and that he was taken by Cap. ad satisfaciend. at the Suit of M. by the Sheriff of G. who let him go at Large, and on Issue up­on the voluntary escape it was found for the Plaintiff. And it was moved, that the Writ of Audita Querela was not good, for the words are, that the Plaintiff capt. fuit virtute brevis nostri judi­cialis, and this word judicialis is not in the Re­gister, but only brevis nostri de Capiendo, yet adjudged good. 1 Leon. 73 Arundell and Mor­ris.

Audita Querela on escape of the Testators Cre­ditor, and recovery against the Marshal. Defen­dant protestando, that the Plaintiff escaped after the Defendant recovered against the Marshal, and the Plaintiff did not pay the Marshal, absque hoc that the Marshal satisfied and paid the Testa­tor. This case differs from all others of escape by consent of the Gaoler, this being not purely Debt which goes over to Executors, but is groun­ded on a Tort general by the death of the Gao­ler; the Court concluded, that recovery against non payment to the Marshal, was no discharge of the Plaintiff in this Audita Querela. But Adjor­natur, to take Issue on payment by the Marshal to the Creditor, viz. the Defendants Testator 3 Keb. 763. Gardner and Sedgwick.

One was Outlawed in Debt, and taken upon Outlawry Pleaded to Audita Querela where 'tis good, or not the Capias and committed to the Fleet, and the Warden suffered him to go at Large voluntarily, and after the Executor of the Plaintiff in Debt, takes him in Execution again upon a new Writ, and upon this he brought Audita Querela, and [Page 246] shews this matter, and Outlawry in the Plaintiff in the Audita Querela was pleaded, Per Cur. it is a good Plea, because this Writ is not directly to Reverse the Outlawry (as Error is) but is foun­ded upon a Tort ( scil.) upon the Escape, and not upon the Record only, aliter in Error or Attaind. Outlawry is no Plea; nor is there any difference as to this Case, where the Outlawry is at the Suit of the Defendant or of a Stranger. Vid. other good reasons Sider. 43. Jason, and Kete.

If upon Elegit, the Sheriff takes an Inquisition, and there are found several Lands subject to the extent, and found of the several values; and the Sheriff Retorns he had delivered some of the said Lands in Particular for the Moieties, where it appears, that according to the values found an equal Moieties is not delivered to the party who recovers, but more than a Moiety; this is not void, neither is it a Disseisin by the Entry, but only voydable by an Audita Querela. Tr. 15. Car. 1. B. R. Rowe and VVeeks.

If A. recover against B. Debt or Damages, and Elegit is granted to the Sheriff to extend the Moiety of his Land, which is ancient Demesns, altho it be admitted, that this is not extendible, yet B. may not avoid this by Entry, without Audita Querela, because the Sheriff had a War­rant to deliver the Moiety of half his Land, and this was his Land, Ergo not void. Hob. p. Cox and Barnaby.

CAP. XIX.

Of Elegits, and the Sheriffs Duty therein, and of the Retorns thereof. The difference of it, as to Lands and Goods, how to be managed by the Sheriff that it may be well executed, and what thing may be ex­ecuted or not. Of the Inquisition, Retorns of Ele­git, how to be made. Where a new Elegit shall be had or not. Of extent by the Bayliff of a Liberty. The Sheriffs Office about Execution for the Kings Debt; of Stat. Merchant, Staple, Recognizance: The difference of the Retorns. Retorns of Scire fac. the Sheriffs demeaner as to Outlaries, and Capias Utlagatum, and the Re­torns

Of Elegits, &c.

ELegit is a Judicial Writ given by the Stat. The nature of an Elegit, as to Lands or goods. VV. 2. c. 18. either upon a Recovery for Debt or Damage, or upon a Recognizance in any Court. By this Writ the Sheriff shall deliver to the Plaintiff, omnia catalla debitoris (exceptis bo­bus & afri [...] Carucae) medietaten terrarum, and this must be done by Inquest taken by the Sheriff, for the valuation of the Goods, and Lands ought tobe first found by the Inquisition of a Jury. VV. 2. c. 18. gives the Elegit, so that in Elegit the Sheriff may take in Execution the Moiety of the Lands of the Conizor, &c. and all his Goods and Chat­tels, (except as aforesaid) and was to deliver them to the Conisee, or he who recovers upon a reasonable extent or price, until the Deb [...] be sa­tisfied, and the Sheriff shall deliver him the Sei­sin of the Land, and he is called Tenant by Ele­git, and shall do no VVaste. 4 Rep. 47.

The Elegit as to Goods, is in effect but a Fieri fac. and therefore if there be no Lands, and Ex­ecution be upon Goods, and they are not suffici­ent, he may have a Capias; aliter if Lands be extended.

If one prays to have Elegit, and the Sheriff Retorns he has no Lands, and he prayed a Ca­pias, but the Court granted it not; the cause is, the Entry in the Roll is, that he hath chosen the Execution of the Moiety of the Lands which he must stand to, 30. Ed. 3. But the Law now is not so, for if the Sheriff return Nihil, the party may have a Capias, Hob. 57.

Elegit, how to be managed by the Sheriff, that so it may be well Extended, and what things may be executed or not.

As to what things may be extended or not, you must know.

All the Goods and Chattels, in which are inclu­ded Leases for Years. Leases for Years, shall be extended, (except Oxen and Beasts of the Plow) the Moiety of the Lands. Vid. infra, how it shall be done.

A Rent seck, where there is not any Rever­sion A rent seck. cannot be delivered ut liberum Tenementum. Cro. Eliz. 656. VValshal and Heath.

Annuity Certain is extendible by Elegit. Cro. Annuity. Jac. 78. York and Twine.

Lands in Ancient Demsne may be delivered Aunc. de­mesne. in Execution by the Sheriff by force of an Eelegit out of the Kings Court, for the Land it self was never put in plea directly in the Kings Court. Vid. the Million Act. 5. Rep. Aldens Case, Hob. 47. Cox and Barne­by.

If the Lands descend to an Infant, the Sheriff shall cease to extend.

As to the Inquisition,

Note, If the Inquisition in Elegit be void in Inquisition void in any part, void in the whole. any part, its void in the whole, and the whole must be quasht; and not quoad that only; so if more than a Moiety be delivered on the Elegit, it is void for the whole, 2 Keb. 582. Harris's Case, Siderfin p. 91. Berry and Wheeler.

It was moved in the said Case of Harris to quash an Inquisition of Elegit upon Judgment in B. R. because it appears not in what County the Lands extended were; but Monmouth being in the Margent, and directed to the Sheriff there, and the Retorn made by him, it shall be in­tended in Monmouth, 2 Keb. 582.

Upon a Writ of Extendi facias upon a Statute, The Jury cannot alter a Verdict in substance. if the Sheriff Impannel a Jury, and they deliver the Verdict to the Sheriff in Writing, they may after make it more formal, but cannot alter it in substance; for it is a compleat Verdict by delivery of it to the Sheriff, 2 Roll. Abridgm. 712. D'albie's Case.

Elegit recites the Judgment, quod Elegit exe­cutionem Elegit vitious upon Omission. of the moiety of the Goods, and of the Lands; and the Writ was, Ideo tibi praecipimus quod bona & catalla of the Defendants, quae habuit die judicii praedicti redditi deliberari fac', omitting these words, & medietatem terrarum & tenementorum praedict' tenend' the said Goods and moiety of the Lands; Quousque debitum levetur, by virtue whereof the Sheriff delivered the Moiety in Execution. Per. Cur' This shall not be amended, and he ought to Amend­ment. have a new Elegit; because the Inquisition was taken without Warrant, the Sheriff New Elegit. having no Warrant to extend those Lands, Cro. Car. 162. Walsall and Riches.

Two Inquisitions taken at several days by Two Inqui­sitions no one Stat. Merchant. several Juries upon one Statute-Merchant, were adjudged naught; one was taken of the Land, and the other for the Lands and Goods, 1 Brownl. 38.

Lessee had a Lease of the value of 100 l. and The Sheriff not to deliver the Lease at another. value, than the Jury find it. after the Teste of the Elegit, and before the She­riff had executed the Elegit, assigns his Term to one, who assigns it over to the Plaintiff in the Scire fac'; and afterwards the Sheriff executes the Elegit, and delivers the Lease to the Plaintiff, Tenend', &c. for the satisfaction of the Debt, which came but to 43 l. 6 s. 8 d. Per Cur. The Sheriff could not deliver the Lease at another value than what the Jury had found it at. And the Sale made by the Sheriff is as strong as if Sale by the Sheriff, as strong as in open Market. it had been made in open Market, and all the Goods and Chattels are bound after the Teste of the Elegit, and cannot be sold by the Owner after, 1 Brownlow 38. Connyers and Brand­ling.

Upon Elegit there needs no Liberate. Aliter upon a Statute, March. 117.

In every Elegit the Sheriff must Retorn and The Sheriff to set the moieties distinctly. set out the Moieties distinctly, unless they be Tenants in Common; and in that case he must Retorn the special Matter, 1 Brownl. 38.

On Inquisition of a Lease which is but a Sale, or extent of a Lease, and the diversity On the 2d Elegit, the Sheriff can only deliver a moiety of the moiety l [...]ft. Chattel, the Sheriff may sell it as Goods; but if he extends it, there shall be no other benefit than as of a Common Extent, Id. ib.

Two persons Recovered severally against one in Debt: He who had the first Judgment sued first an Elegit, and had the Moiety of the Land delivered in Execution; after the other sued the Elegit, and the Sheriff prayed the Advice of the Court. Per Cur. He shall deliver but the Moiety of that Moiety which he had at the time of the [Page 251] Writ awarded, Cro. Eliz. 482. Huitt and Cogan.

S. H. acknowledged two Judgments in Debt Two Ele­gits and the whol [...] Land extended by them. to A. upon Bond, and was bound to F. in a Bond bearing date before the Judgments. F. assigns his Debt to the King. A. takes out Execution upon his Judgments, viz. two Elegits; by one he has one Moiety of H's Lands, by the other the other Moiety: Then Process issued out of the Exchequer, for the Debt assigned to the King. Per Cur. It was Resolved,

1. This Subjects Title is prior to the Kings, and the King is bound by the Statute of 33 H. 8.

2. Pasch. 13 Jac. B. C. Rot. 121. Crook's Case, Ad­judged. The two Extents are well executed; because both Judgments are in one and the same Term, and no priority between them, Hardr. p. 23. Attorney General versus Andrews.

Actual possession ought not to be delivered on Actual possession not to be delivered on Elegit, only to enable an Ejectment. Elegit, the Sheriff ought only to deliver Seizure to enable the Plaintiff to maintain an Ejectment, and the Tenant may plead on the Ejectment, else the Tenant would be turned out unheard and be remediless; yet if Actual possession be delivered it is remediless, 3 Keb. 243. Jefferson and Dawson.

In Elegit the Sheriff ought to deliver the The moie­ty to be delivered by Metes and Bounds Moiety by Metes and Bounds, Hutton p. 16.

If the Land be first Executed upon a Statute, and afterwards an Elegit upon a Judgment ob­tained before the acknowledging of the Statute come also to the Sheriff, the Moiety of the Land extended shall be delivered to the Plaintiff upon the Judgment, 1 Brownl. 38. Freeman's Case.

The Retorn, how to be made.
Vid. tit. What Writs need not be retorned, 4 Rep. 65.

If a man sue an Elegit upon a Recovery, and Ca. sa. after an Elegit. the Sheriff Retorn, That he made partition of the Lands of the Defendant by 12 Jurors; but he could not deliver the Moiety to the parties according to the Writ; because all the Land was extended to another upon a Statute. He may after have a Ca. sa. for this Retorn is all one with a Nihil Retorned, Mich. 31 & 32 El. Palmer and Knowles.

If one pray an Elegit, and this entred on Record in Banco, and takes out the Writ; and before the Retorn of it the Record is removed into the Kings-Bench, where the Judgment is affirmed within the year, and after it is affirmed to the Court, that the Sheriff had Retorned his Writ in Banco; yet the Plaintiff may have a Capias, for that this Allegation doth not appear to the Court, and now its impossible it can be Retorned here, and so its stronger than if a Nihil had been Retorned, trin. 15 Jac. B. R. Andrews and Cope.

Upon Elegit the Sheriff ought to Retorn the Extent, and also that he hath delivered the Lands.

Elegit need not to be Retorned. Therefore if the Sheriff by force of an Elegit delivers to the party the Moiety of the Lands of the Defendant, and does not Retorn the Writ; if now the Plaintiff will bring Action of Debt de novo, the Defendant may plead in Bar the Execution aforesaid, tho' the Writ of Execution was not [Page 253] Retorned, Earl of Leicester's Case, 1 Leon. p. 280. Penruddock and Newman.

The Sheriff Retorns upon Elegit, That the Extent by the Bayliff of a Liberty. party had not any Lands, but only within the Liberty of St. Edmondsbury, and that J. S. Bayliff there hath the Execution and Retorn of all Writs, who enquired and retorned an Extent by Inquisition, and that the Bayliff delivered the Moiety to the party, and the Plaintiff by virtue of that Extent entred.

Per Cur. 1. The Bayliff may make such Inqui­sition by Warrant from the Sheriff.

2. When a Jury by the Inquisition find the seisin and value of the Land, the Jury shall ex­tend all the Land; and the Bayliff in a Fran­chise, The Sheriff to deliver the moie­ties, and not the Jury. and the Sheriff where there is none, shall deliver the Moieties, and not the Jury, Cro. Car. 317. Sparrow and Mattersoch.

On an Elegit, averring no Goods were seised, it hath been held no Scire facias lieth; but upon a Fieri fac. bare seizure is an Execution, 2 Keb. 789, 821. Smith and Mildmay.

It was found by Inquisition on Elegit, that the Retorn, where there are other Lands not to be in severalty. Defendant was seised of the Moiety of a Mes­suage and Lands for Life, and other Lands in the Right of his Wife; the Sheriff Retorns, Quod virtute brevis, &c. deliberari feci medietatem om­nium praemissorum, videiicet, medietatem medietatis unius messuagiis necnon duo pomar' necnon unum clausum. The Elegit was filed; the Retorn is not good, the Sheriff ought to have delivered to him the moiety of the moiety of the Lands joyntly, so that the Tenant by Elegit may be Tenant in Common of a fourth part with the Joyntenants: But by this delivery in Severalty he had in effect but the 8th part; for the other Joyntenant may occupy the Land delivered with [Page 254] him in Common; if it had been duorum poma­riorum it had been good. And he cannot have a New Elegit properly; but the Plaintiff shall New Elegit. make a surmize that the Sheriff malè suggessit in the Execution of the Elegit, and then he shall have a New one at his peril, Latch. Rep. 77. Score and Kendale.

An Extent upon a Statute-Merchant. The Conisor keeps the possession of the House. Plaintiff put the Conisee in possession of parcel of an House and Lands, and suffered the Co­nisor to continue in the rest of the House, by reason whereof the Conisor kept the possession of the whole and held the Conisee out. The Conisee, to the intent he might have a full and perfect possession of the Whole, caused the Sheriff that he did not Retorn the Writ of Extent, on which it is entred on the Roll, Quod Vicecomes nihil inde fecit nec misit breve; an Alias An Alias extendi fac', where it may be, or not. breve extendi facias may well be awarded. And the Sheriff cannot Retorn, that the Land was formerly extended by the Old Sheriff; because by the Entry upon the Roll it appears that no Entry of Retorn on the Roll. Execution was done; but if the Entry be not, the same is an Execution for the party, tho' it be not Retorned, 2 Leon. 12. n. 20. Coleshill and Hastings.

It was said in 1 Keb. 91. That after one Elegit New Elegit without Continu­ances. Retorned, they cannot have another Elegit without Continuances. But per Cur. the Course is not to make Continuances in the Roll, but awards severally. And per Cur. if Nihil be Retorned he may have a New Elegit; but if an Acre be Retorned, he can have no other.

The Form of the Retorn of an Elegit with Inquisition, taken, 2 Sand. 244.

Sheriff takes Inquisition upon Elegit, the Plaintiff may enter immediately before the Re­torn of it, 1 Rolls Abr. 738. Lister and Brom­ley.

Presidents.

Retorn of Elegit with Inquisition taken on it, vid. 2 Sand. 68.

The Sheriff Retorns Nihil as to Goods and Chattels on the first Elegit; yet on the second Elegit a Lease for years was taken in Execution, tho' the Suggestion for the second Writ was of Lands, and nothing of Chattels, Mo. 341. Hunger and Fry.

The Form of the Retorn of Elegit, Dalt. 231, 232.

Upon Elegit the Sheriff Retorned, That he Retorn must be on an Inquisition. had delivered to the Plaintiff Goods and Chat­tels of the Defendants ad valentiam 20 l. per rationabile pretium, and shewed what the Goods were in certain; and also that he had delivered 20 Acres of Land of the Defendants, quae est medietas omnium terrarum per rationabile extentum; but Retorned no Inquisition, scil. per Sacramentum 12. &c. Per Cur', There ought to be Inquisition, and the Sheriff himself cannot extend it, Dyer 100.

Plaintiff declares, where the Defendant had In Consi­deration he would prosecute a New Elegit, a Promise to procure the Goods to be sound is not good seised Goods of I. S. by vertue of an Elegit, sued by the Plaintiffs and delivered to the Defendant, being Deputy Sheriff, he in consideration, that the Plaintiff at the request of the Defendant, would prosecute another Elegit, and deliver to the Defendant, and Authorize, some person to receive the Goods, promiseth to procure the Goods to be found by the Inquisition, and to deliver the Goods to the Person Autorized. Per Cur. the P [...]mise is not lawful, the seising of the [Page 256] Goods, by the first Elegit was not good, for want of an Inquisition: And it differs from a Fieri fac. so that the Defendant is a Tres­passor ab initio, and this promise is to make good his Tort, and the Sheriff must Retorn a Jury indifferently, and this promise engageth him to the contrary, and one part of the pro­mise being unlawful makes all Vicious. Sir Thomas Jone's. Rep. Morris and Chapman, Carter Rep.

A new Elegit, Issued upon Suggestion, that the Where shall be a new Elegit. party had other Lands in the same County, for if it appear that one takes part of the Land upon delivery of the Sheriff and accepts it, he cannot after take a new Extent; and if he does 'its wholly void, for then the Record is ended, and the Attornies of both parties are out of Court; but if it is found that he came into Court, and surmised that the party had other Lands in the same County, and prayed a new Elegit, he shall have it; for this is intended the first day of the Extent Retorned, and then it is reason he may wave it, and pray a new Ex­tent, for he never accepted of the first. Mo. 341. Hunger and Fry. Cro Eliz. 310. mesme Case.

After a full and perfect Execution had by Extent, and Returned of Record, there shall never be any Reextent upon any Eviction; but if the Extent be insufficient in Law, there may go out a new Extent; as Elegit Issued out against G. Esq; who at the time of suing the Writ was Baronet, it was insufficient since the Stat. 23. H. 8. cap. 5. Co. Lit. 290, &c.

Of Elegit, and the Retorn, Vid. Fulwood's Case 4. Rep. Vid. W. 2. c. 17. 2 Inst. 39.

Where Execution shall be awarded upon Elegit, and how the Sheriff shall demean himself upon it, and what Lands shall be delivered, and the Retorn.

If more than a Moiety be delivered upon the Elegit, 'its for the whole, Siderf. p. 91. Berry and Wheeler.

Of the Sheriffs Extent of a Term, vid tit. Fi. fac.

The Sheriff may Extend, or sell a Lease, and How De­livered. this Sale shall bind the King, because but a Chat­tel, and no Covin in the case, 8. Rep. Sir George Fleetwoods Case. Judgment in Debt against a Joynt­tenant for Life, who releaseth to the other and dyes. The Plaintiff sues Elegit. Per. Cur. the release being his own act shall not discharge his Moie­ty of the Execution, for by the Acceptance of the Release he has deprived himself of the jus accrescendi, 7. Rep. 78. Lord Aburgavennies Case.

A Rent seck (where there is not any Redissei­sin) What shall be delive­red. cannot be delivered, ut liberum tenementum, Cro. Eliz. p. 656. Walsal and Heath. Annuity cer­tain is extendiable by Elegit. Cro. Jac. 78. Yorke and Twine.

Where the Sheriff extends a Manner by the name of Acres, Land, Meadow, Wood; no Advowson passeth, Owen's Rep. p. 4. Brag and Brook.

In Elegit the Sheriff ought to deliver the Moiety by Metes and Bounds. Hutton. p. 16.

Upon recovery in C. B. against G. The Plaintiff prays Elegit to the Sheriff of London, where the Action was brought, and to the Sheriff of Lanca­ster, (as the course is) by Sci. fac. directed to the Chancellor of the County Palatine, and this Ele­git appears to be grounded upon a Testatum, [Page 258] first made by the Sheriff of London, that G. had nothing in London, ubi revera they never made such Retorn, and upon this the Sheriff Retorned that he took a Lease of Tythes, which the She­riff delivered to the Plaintiff, as the Goods and Chattels of G. for the Debt, and that G. had not plura bona, &c. Per Cur. no Retorn [...]eing made by the Sheriff of London, and it appear­ing that no Testatum was ever awarded, it is Er­ror, for the Plaintiff in B. C. might have taken his Elegit immediately into London and into Lan­caster, Elegit into London and Lancaster or any o­ther Coun­ties. yet he hath waved this benefit, and grounds his Execution upon a Testatum, which is false, and now G. shall be restored to his Term again; for the Sale and delivery of the Lease to the party himself on an Elegit is no Sale On Sale of a Term where the Term shall be resto­red or not. by force of the Writ, and it is in Law, but a bare delivery in specie, and upon reversal shall be restored in specie, and doth not alter the property absolutely, but attends the goodness or illness of the Execution. But if the Sale had been to a stranger for. 100 l. tho the value had been 1000l. yet upon reversal, he shall not have the Term, but the Mony, for it is the folly of the party that he did not pay the Judgment: So on Sale by Fi. fac. the Term shall never be restored. vid. supra Cro. Jac. 246. Yel. p. 179. Goodyear and Ince, Yel. 180. Vid. where there shall be a Reextent or no.

If no Retorn be upon Elegit, the party after the Year and Day shall have a Sci. fac. and af­ter this a new Elegit. Mo. p, 24. n. 83.

The Sheriffs Office about Execution for the Kings Debt

After the Stat. 33. H. 8 c. 39. was made for levying of the Kings Debt, the usual Process to the Sheriff at this day is,

QUOd diligenter per Sacrament. proborum & legalium hominum de balliva tua inquiras, &c. quae & cujusmodi bona & ca­talla & cujusmodi pretii idem debitor habuit in dicta balliva tua, &c. Et ea omnia capias in manus nostras ad valentiam debiti praed. & inde Fi. Fac. debitum praed. &c. Et si forte bona & catalla praedicti debitoris ad solucion. debiti praedict. non sufficerent tunc non omittas propter aliquam Libertatem quin eam ingredi­aris & per sacrament' praed. proborum, &c. diligent in­quiras quas terras & quae tenementa & cujusmodi Annui valoris idem (debitor) habuit seu seisitus fuit in dicta balliva tua, &c. Et ea omnia & sin­gula in quorum manibus jam existunt extend. fac. & in manus nostras capias, &c. Et capias praed. (debitorem) ita quod habeas corpus praed. (debitoris) ad satisfac. nobis de debito praed.

Whereby it appears, that if the Goods and Chattels of the Kings Debtor be sufficient, and so can be made to appear to the Sheriff, whereupon he may levy the Kings Debt, then ought not the Sheriff to extend the Lands of the Debtor or his Heir, or of any Purchaser, or Ter-tenant.

If one extends a Statute Staple at the Suit of The King to be pre­ferred. A. the Sheriff extends the Lands, and takes the Goods, and seiseth them into the hands of the King, but does not make Livery, and and after a Writ of Prerogative of the King issues out [Page 260] of the Exchequer, and commands the Sheriff to levy the Kings Debt of B. ( viz.) 100 l. of the Goods of the Debtor; and if he had not suffi­cient, then to Extend his Lands; and this is delivered to the Sheriff after the first Writ of Extent, but that was not Retorned. The Sheriff in this Case ought to execute the Extent for the King's Debt; because the property of the Goods and Lands were not in A. before they were delivered to him by a Writ of Liberate, and the Goods being seised into the hands of the King for the use of the party, were priviledged from all other Executions, but that of the King only, 2 Roll. Ab. 158. Dyer 67. Stringfellow's Case. Hob. 339.

Where the Officer without any Warrant or Property of the Goods not in the Plaintiff before the Liberate. Authority shall levy any Duty for the King, and shall after account for the same in the Exchequer, or otherwise pay the same to the King's use, there the Officer seemeth chargable but as a Trespassor; but if he shall convert the same to his own proper use, it is Felony.

If a man be bound in a Statute-Merchant Execution on Stat. Merchant. (and does not pay the Debt at the day) Execu­tion shall be done thereof in this manner; the Conisee must come to the Major, or other Officer, before whom the Statute was acknow­ledged, and pray him to Certifie the same into the Chancery, under his Seal, &c. and if he will not Certifie it, then a Writ of Certiorari must be sued forth of Chancery, directed to the said Officer, to Certifie the acknowledgment of the said Statute into the Petty-Bag Office in Chancery, and upon the Certificate a Writ of Execution; scilicet, First, a Capias shall go out to the Sheriff against the Body of the Conisor ( si Laicus sit;) but the Debtor, after he is taken, hath liberty given him (within a Quarter of a year) to sell [Page 261] his Lands and Goods to discharge his Debts: And if he do not agree for his said Debts within the next Quarter; or if he cannot be found, then all his Lands and Goods upon Extendi facias shall be Appraised by a Jury, and shall be delivered to his Creditors by a reasonable time, to hold till the Debt be fully paid; and yet the Body of the Debtor, if he be taken, shall remain in Prison until the Debt and Damages be paid. And this Writ may be Retornable into the C. B. or B. R.

Tho' it be within a Franchise, the Sheriff is to execute it himself.

If the Sheriff Retorn, That the Debtor is a Clerk, then an Extent shall go out against his Lands and Goods only.

If the Debtor find Sureties, they shall be Ordered in all things as the Principal; scilicet, As to the Arrest of their Bodies, and delivery of the Lands and Goods.

The Statute ought to be shewed to the Court, where the Certiorari is Retorned.

The Creditor out of the Profits of the Lands, is to find the Debtor Bread and Water in Pri­son.

Of Statute-Staple.

A Statute-Staple is of two sorts:

1. Per Stat. 26 Ed. 3. cap. 9. & sic proprie dicitur, and is acknowledged before the Mayor of the Staple.

2. Per Stat. 23 H. 6. c. 6. before one of the Chief Justices, or before the Mayor and Recorder of London.

A Statute-Staple must be Certified into Chan­cery Stat. Staple. as a Statute-Merchant, and on that Certificate Execution shall go presently forth against the Body ( si Laicus sit,) and Lands and Goods of the Conisor, Retornable into Chancery, in the Petty-Bag Office there, and not into B. C. or B. R. as Statute-Merchant.

The Sheriff on this shall take the Body of the Conisor, and per Sacramentum proborum, &c. presently extend, and prize and seise into the King's hands his Lands, Goods and Chattels, and shall Certifie the Appraisment into Chancery.

Upon which the Conisee shall have a Libe­rate to the Sheriff, to deliver these Lands and Goods to the value of his Debt; and shall not be delivered to him by the Sheriff before the Liberate.

Of Retorns on Statute Merchant, Staple and Recog­nizance; and the Sheriffs demeanor in the Exe­cutions.

Before I speak of the Retorns, it will be needful to consider the Writs themselves, and the different Forms of them: For they are the Sheriffs Directions.

The Writ of Execution upon a Statute Mer­chant, Statute-Merchant. is for Lands and Goods thus:

QUod Vic' omnia bona & catalla terras & tene­menta quae fuerunt praedicti (le Conisor) sine dilatione Liberari faceret per rationabile pretium & extentum tenend' ut liberum tenementum, &c.

And he is not commanded to do it per Sacra­mentum proborum, &c.

But the Writ of Execution upon a Statute-Staple, and upon a Recognizance in the nature of it (on 23 H. 8.) is,

QUod Vic' omnia terras & catalla per Sacra­mentum proborum & legalium hominum de balliva sua per quos, &c. juxta verum valo­rem diligent' extendi & appretiari faceret & in manum nostram seisiri faceret ut ea praefato (le Conisee) quousque sibi de summa praedicta satis­factus fuerit, liberari faciamus, &c. Et qualiter, &c.

So that as ye may observe by the Forms, by force of the Writ on the Statute Merchant, the Sheriff may deliver the Lands and Goods pre­sently upon the Extent to the party. But by the Writ on Statute Staple, or Recognizance in the nature of it, he is to extend the Lands and Goods, and to seise them into the hands of the King; but not to deliver them to the party without a Liberate.

The Proceedings in a Statute-Merchant, is a Difference between proceed­ings in a Stat. Merch. and Stat. Staple. Capias, and if the Sheriff thereupon retorn a Cepi corpus, then he shall remain in Prison a quarter of a year, within which time he may sell his Goods and Lands to pay his Debts, and this by the express words of the Statute of 15 H. 7. c. 16. but if the Sheriff retorn Non est inventus, Execution shall be granted of his Lands and Goods.

But in a Statute-Staple and Recognizance, the first Process is to take his Body, Lands and Goods all in one Writ; for this is by the express words of the Statute, and a more speedy Re­medy than the Statute-Merchant.

Now on a Statute-Staple and Recognizance, the Writ of Execution upon Retorn of the Coni­sor dead, is to extend the Lands nec non catalla, which were of the Conisor at the time of his death: And this is the constant course, as ap­pears by Records of Extents which are in the Rolls.

On Extent of a Statute-Merchant the Sheriff Retorns, That the Body cannot be found, and that he had extended the Lands and delivered them to the Plaintiff, Reg. 146.

The Sheriff may retorn Non est inventus, nec habet bona nec terras; the Sheriff retorned the Conisor mortuus, Dyer 299.

Upon Extent of a Statute-Merchant, or Staple, the Sheriff may retorn, That the Debtor is Clerk. If he retorn Tradè, or Mandav' ballivo Libertatis, he shall be punished.

Lands in Ancient Demesn shall be taken in Execution on a Statute; but not Copyhold-Lands, 4 Rep. 67. 5. Rep. 105.

Where, the Debt of the Conisor appeareth in the Retorn, there of necessity his Seisin must be found to be of an Estate in Fee-simple only, Dyer 299.

Execution upon Recognizance per Stat. 32 H. 8. c. 6. hath the effect of a Statute-staple.

Retorn' Liberate post Extent' fact' super Oblig' Statut' Stapulae.

VIrtute, &c. Liberavi infranominat' B. S. maneria terras & tenementa infrascript' habena' sibi & assignat' suis ut liberum tenementum suum quousque sivi de debito infrascripto una cum damnis misis & expensis suis plenarie fuerit satisfact' prout, &c.

Retorn' de Extent' super Recogn' vel Stat'.

VIrtute istius brevis mihi direct' cepi corpus infranominat' W. W. cujus quidem corpus ad diem & locum infra content' paratum habeo prout interius mihi praecipitur.

Resid' Executionis istius brevis patet in quadam Inquisitione huic brevi annex.'

A. B. Armig. Vic.

War. INquisitio indentat' capt' apud C. in Com­praed. 12 die Jan. Anno, &c. coram A. B. Armig. Vic. Com. praedict. Virtute brevis Dom. Regis mihi direct. & huic Inquisitioni annex' per Sacra­mentum T. B. &c. (Et sic XII.) qui dicunt super Sacramentum suum quod W. W. in brevi praedict. nominat. die recogn. debit' in eodem brevi spec. fuit seisitus in dominico suo ut de feodo de & in manerio de A. in Com. praed. clar. annui valoris in omnibus exitibus ultra reprisas 100 l. Et ulterius Jura­tores praedict. super Sacramentum suum praedict. dicunt quod praed. W. W. die recognitionis debiti praed. seu unquam postea nulla habuit bona sua catalla, neque al. sive plura terr. five tenementa in Com. praed. ad eorum notitiam quod extend. appretiari aut in manus dicti dom. Regis capi aut seisiri possint. Quae quidem manerium terr. & tenementa praedict. cum pertinentiis Ego praefat. Vic. die captionis hujus Inquisitionis cepi in manus dict. dom. Regis per Extent. praed. In cujus rei testimonium tam ego praefat. Vic. quam Jurat. praed. huic Inquisition. sigilla nostra alternatim apposuimus die anno & loco supradict', &c.

A. B. Armig. Vic.

Extent on a Statute-Merchant issued out Retorn. against R. the Conisor; the Sheriff Retorned, That the Conisor was possest of divers Goods, and seised of Lands, which he delivered to the Conisee, and that the Conisee accepted of the Land; and because the Sheriff did not Retorn, That he had not any other Lands, Goods or Chattels. It was Adjudged Insufficient, and a new Writ awarded; tho' some held it was well enough in the Case of a Conisor, but not in the Case of a Purchaser, 1 Brownl. 37. Fletcher and Robinson.

Note, If the Conisor be Retorned dead, Exe­cution If the Conisor be dead, how Exe­cution to be. shall be granted against his Executor, without Scire fac' to have Execution of his Goods; so against the Heir and Tertenants of his Lands without a Scire fac', Quaere. 15 H. 7. 16. b. 2 R. 3 8. b.

If the Sheriff do not Retorn the Capias, or retorn Tardè, or that he directed it to a Bayliff of a Franchise, he shall be punished, and yield Damages to the party grieved, according to the Statute of de Mercatoribus, W. 2. c. 39.

Two Inquisitions taken at several days by several Juries upon one Statute-Merchant, were Adjudged naught: One was taken of the Lands, and the other for the Lands and Goods, 1 Brownl. 38.

If another had these Lands. in Execution by Elegit, or is in by discent; in such Cases the Sheriff shall Retorn the special Matter; i. e. in the first Case, that he hath extended the Land of the Defendant: But he cannot deliver the same to the Plaintiff; for that another had the same in Extent before.

The Sheriff having an Extent upon a Statute, may gather the Goods all into one place to be viewed and appraised by the Jurors, and he is not a Trespassor, Mo. 563. Attorney General vers. Crocker.

As to what Lands, &c. shall be extended upon Statutes, &c. it does not properly belong to this Treatise, which hath a respect only to the Office of Sheriff.

Note, If Lands delivered in Execution (on a Scire fac', and New Writ of Execution, where. Statute-Merchant, Staple or Recognizance, or upon recovery of Debt and Damages) are lawfully recovered or evicted out of the posses­sion of the Conisee, before his Debt and Da­mages be satisfied, he shall have Scire fac', &c. and upon this a new Writ of Execution, or Re-Extent, to levy the residue per Stat. 32 H. 8. c. 1. 1 Inst. 289, 290, 5 Rep. 87.

Note also, It is a Question in 2 Brownl. 270. By whom. King James Incorporated the Mayor, Bayliffs and Burgesses of Berwick, and granted to them the Execution and Retorn of all Writs, Whether an Extendi facias shall be Executed by them, or by the Sheriff of Northumberland?

Some said Berwick is English, which appears by the Act of Parliament which confirms the Letters Patents, and also they send Burgesses to Parliament.

Others said, It is a part of Scotland, and a Sheriffwick. An Obligation there shall not be Tried in England; and it is not in the County of Northumberland, nor part of it.

By Siderfin p. 382. our Laws are not current there: But yet in Jackson and Crisp's Case, Local breach of Covenant at Berwick, Tried at Bel­ford in Cumberland▪ 2 Brownl. 270. 2 H. 7. 31. 26 H. 23.

Retorns on Scire facias.

Scire facias is a Writ Judicial, directed to the Sheriff, &c. and is usually to warn a man, to come and shew Cause to the Court, &c. why Execution of a Judgment shall not be done. But this Writ shall not be granted before the year and day past, after Judgment given.

Conisor in a Recognizance dies, Scire fac' Retorn not agreeing with the Writ. goes against his Executors, & Haeredes terrarum, &c. Sheriff Retorns, That he had no Executor; & Scire feci W. H. filio & haeredi praedict. M. ( le Conisor.) This Retorn agrees not with the Writ; yet it may be good, 3 Rep. 15. Sir William Herbert's Case.

Scire fac' on a Recognizance in Chancery against C. who was Retorned dead, then a second Scire fac' issued against the Heir of C. and against the Tenants of the Lands of C. which he had tempore Recognitionis vel postea. The Sheriff Retorned C. Tertenant, and omitted to Retorn any thing against the Heir. This a Non-retorn of the Sheriff, and not a Mis­retorn, and is not aided by any of the Statutes of 32 H. 8. or 18 Eliz. or 21 Jac. of Jeofail. The Heir must be summoned as well as Tertenant, on a Re­cognizance Its Error: The Tertenant without the Heir ought not to be charged; therefore the Heir ought to be summoned, for the Heir may have a Release to plead, or other Matter to bar the Execution. Also if the Heir be within Age, the Parol shall demur, and the Tertenant shall have advantage thereof: And a new Scire fac' [Page 269] issued ad Informand' Curiam; and the Retorn was, That he had not any Lands in his Bailywick that descended to his Heir, nor any Heir within his Bailywick, and good enough; tho' it had been better, if he had Retorned who was Heir, and that he was warned, or that there was not any Heir in the said County, Cro. Car. 295. Eyres and Taunton.

The Writ Commands the Sheriff to give The words of the Writ not answered in the Re­torn. Notice to the Tenants of the Land in Fee­simple, and the Sheriff Retorns not, That those which he had Retorned were Tenants of the Land in Fee-simple, and so the words of the Writ are not answered, 1 Brownlow Rep. 145, 146.

The Sheriff may Retorn 24 Tertenants of the whole, and every Tenant may plead in dis­charge of himself; or he may Retorn, That each is Tertenant of so many Acres, 2 Keb. 601. Henshaw's Case.

Scire fac' to have Execution on a Recogni­zance. The Sheriff Retorns the Conisor dead, other Scire fac' Issues against the Tertenants of the Conisor, on which the Sheriff retorns a Scire feci to W. and R. Tenants; and further, that there was no Heir nor any other Tenants, quibus Scire fac' poterit, & la forme, 1 Keb. 621. 2 Sanders 6. Jefferson and Moreton.

Scire fac' against the Heir and Tertenants, the Sheriff Retorns no Heir, and the Terte­nants appear, & la form, 2 Sanders. Jefferson's Case.

Scire fac' to Tertenants, the Sheriff retorns they are Summoned, la fo [...]me 2 Sanders 6, 8, 232.

Scire fac' ad audiend' errores must be deliver­ed Scire fac' ad audiend errores. to the Sheriff, 1 Rols Rep. 329. Sr. Thomas Midleton's Case.

If a Special Scire fac' do Issue forth, a Nihil Special Scire fac. ret. cannot be retorned upon it, for Nihil is a gene­ral Retorn, and the Writ is Special, Pract. Reg. tit. Retorn.

The Retorn of the second Scire fac' ought to Ret. of the second Scire fac' when to bear date. bear date on the Retorn of the first Scire fac'.

Retorn de Scire fac'.

VIrtute istius brevis nihil direct' per A. B. & C. D. probos & Legales homines de Balliva mea Scire fec' infra nominat' J. S. qd. sit Coram Ju­sticiariis Domini Regis (if it be in the Common-Pleas) vel Coram Domino Rege (if in the King-Bench) vel Coram Baronibus Domini Regis (if in the Exchequer) ad diem & locum infra script. ad ostend. & proponend. si quid pro se habeat vel dicere sciat quare, &c. according the Matter contained in the Writ) prout mihil interius praecipitur.

Infra nominat. A. B. nihil habet in Balliva mea per quod ei Scire facere possum, neque est inventus in eadem (if the Retorn be in Chancery)— qd' sit Coram Domino Rege in Cancellaria.

Two Nihils Retorned countervail a Scire fec'.

To Scire fac. sur Recognisans, Sheriff Retorns that the Defendant is dead, 2 Sanders.

Scire fac. Vid. Tertenants, The Sheriff Re­torns they are Summoned, 2 Sanders 8.

The Sheriffs Demands and Office as to Outlawries and Capias Utlagatum, and Retorn.

He which is sued in a personal Action, if he The man­ner of su­ing to the Outlawry. do not appear on the Mean Process, then the Exigent is directed to the Sheriff to call and pro­claim him in five County Court Days one af­ter another, to answer to the Law; and when, upon the Exigent the Sheriff Retorns quod non comparuit; upon this Retorn, the Plaintiff shall have a Cap. utlagatum against the Defendant, but if the Defendant appear upon the Exigent, he shall have a Supersedas.

Where upon the Exigent the Sheriff retorneth Retorns. Reddidit se, he must have the Body in Court at the day of the Retorn of the Writ, except the Party be Sick.

The Sheriff may Retorn the Coroners were absent.

As for the Forms of these Retorns, vid. Dalt. cap. 59.

A Capias utlagatum is a non omittas in it self. The Bayliff of a Fran­chise can­not Exe­cute a Cap Uilagat. Sheriff not to put the party out of pos­session. And therefore the Bayliff of a Liberty cannot Execute a Cap. Utlagt. and if the Party be in the hands of the Bayliff the Sheriff may take him.

If a Capias Utlagatum Issues to the Sheriff to take the Party, and to enquire what Lands and Tenements he had, the Sheriff finds by Inqui­sition, that is seised of many Lands, and con­tinues Possession in them, he cannot put the Party out of Possession by force of that, Winch p. 78.

An Outlawry Retorned in London in these Retorn as to the Hu­stings in London. words. Ad Husting. tentum in Guildhal Civitatis London tali die A. B. exactus fuit & non compa­ruit: This is no good Retorn, because there are two Hustings in London, one is de commu­nibus placitis, and the other is de placitis terrae; in such case the Retorn must be apud Husting de communibus placitis.

The City of Norwich is within the County of Ret. where the City is City and County. Norfolk. Also it is a County in it self, which may hold Plea. And therefore if a Retorn be made in these words, Ad Com' tentum apud Norvicum in Com. Norfolc. This is not good, for that it may have two Intendments ( scilicet) that the County which was held there was for the City, or for the County of Norfolk: But if the Retorn be in these words, Ad Comitatum Norfolc' tentum apud Norwiucm in Comit. Norfolc. it is good, for now it cannot be intended, but only that their County was held for the County of Norfolk, 11 H. 7. 10. b.

In a Cap. Utlagat. the Sheriff retorned, that Protection Retorned. the Party who was Arrested had a Protection from a Peer of Parliament it is Ill; and day was given to the Sheriff to amend his Retorn, Winch p. 24.

Proclamation was directed to the Sheriff of Proclama­tion Re­torned. Cheshire against J. H. and the Writ was Retorned, Tali die ad Comit. meum tent. en le Shirehall, &c. Proclamationem feci ac eod. die ad General' Session. &c. Proclamationem feci, and this Matter was pleaded in avoidance of the Outlawry to Reverse it, be­cause the Proclamations were made one day, and the Writ was tribus specialibus diebus, &c.

Per Curiam, It is an ill Retorn, and the She­riff was amerced for it, Goldsborough 111.

By the Custom of London the Writ was di­rected to the Sheriff of London, and not to the Coroner (who is Mayor.)

The Retorn of the Outlawry out of London in B. R. is generally made without saying per judicium Coronat. 2 Rolls Ab. 806.

Error to Reverse an Outlawry in the County of Lancaster, for that the Sheriff retorned qd. ad Com. Lancastriae tent. ibid. where it should have been ad Com. Lancastriae tent. apud Lancaster, or at some other place certain, and it was rever­sed, 9 Rep. 94. Dyer 105.

The Exigent was Retorned, ad Com. tent. apud Retorn Exigent. castrum de Exon primo exactus fuit, &c. and because it was not set down in what County, it was held to be Erroneous. One was retorned Outlawed, and for that it did not appear, that it was per judicium Coronatorum, it was reversed, and that without any Writ of Error.

VIrtute istius brevis mihi direct. cepi corpus A. B. Cap. 1. This the Form of Retorns. infrae nominat. cujus corpus Coram Justioariis infra script. ad diem & Locum infra content. parat. habeo prout interius mihi praecipitur, residuum vero Ex­ecutionis istius brevis patet in quadam inquisitione huic brevi annex.

So on non est inventus, residuum vero, &c.

Inquisitio Indentat. capt. apud, &c. Qui dicunt super Sacramentum suum qd. J. S. in dicto brev. nominat. nulla Bona neque Catalla Terr. sive Tenemen­ta habuit aut tenuit in Com. praed. die Jovis prox. post festum Sanct. B. Martyr. Anno Regni Domini Regis nunc tertio in dicto brevi specificat. nec unquam postea, quae in manus dicti Domini R [...]gis capi ac seisiri possunt ad noticiam Juratorum praedict. In cu­jus rei Testimonium tam sigillum Com. praed. quam Juratorum praed. huic Inquisitioni Indentat. sunt ap­pensa dat. die anno & loco supradict.

Other Retorns in Capias Utlagat. vid. Dalton, 215.

Retorna de Exigent, vid. Dalt. 236.

The Judgment is, Ideo Utlagat. Coronator' 1 Inst. 288.

The profits of Lands of the Person Outlawed in personal Actions, the Sheriff may seise with­out any Office, and also the Goods.

CHAP. XX.

Where and in what Cases Action lies against a She­riff for a Rescous, and what Action. Diversity between Mean Process and Execution: Where the Sheriff makes himself chargeable by his Retorn. Where and what Remedy against the Rescous­er by Action or Indictment. Of Retorn of Res­cous. What is good or not. Of Laying the Action, and how to Declare. Of Rescous and Pleadings in it. The Venue in this Action.

Of Rescous. Where and in what Cases Action lies against the Sheriff for a Rescous or not.

IF in the Arresting the party is rescued, be it on Execution or Mean Process, no Action for this lies against the Sheriff: And if the Pri­soner be Arrested on Mean Process, and as he is bringing to the Gaol he is rescued, no Action lies against the Sheriff, for the Sheriff cannot be supposed to have the Posse Comitatus upon every Mean Process, aliter if it be upon Execution; [Page 275] there Caveat Vicecomes. But if he be Arrested Diversity between Mean Pro­cess and Execution as to Res­cous. upon Mean Process and brought to the Gaol, then its no good Retorn for him to say, the Gaol was broken and so he was taken from him. And therefore, Action on the Case was brought against the Sheriff of London and Mid­dlesex on Escape, they plead they had taken the party on a Latitat, and that in bringing him from Islington to the Gaol, Rescous was made of him from them, and so Retorn the Rescous, 16 Ed. 4. 3. Bastard Faulconbridges Case, 2 Bulst. 198. May and Proby, Cro. Jac. 419. Mo. 852. Cro. El. 868. Noy 40. 1 Roll. Rep. 388. Rol. Ab. 99. Mesme Case. Popham 192.

Per Cur. The Plea and Retorn is good, not­withstanding Waldoe and Lamberts Case, 44 El. B. R. and that upon the former differences; and the difference between Mean Process and Execution was inforced in this Case. If the Sheriff take one in Execution for Debt, and after he suffers him to Escape; the debt is gone and the Pro­cess served, therefore in such case, if he should not have his remedy by way of Action against the Sheriff, he should be without remedy: But not so in Mean Process, for there the Party may be taken again.

Action of Debt lies against the Sheriff upon a Cap. retorned qd' cepit Corpus and he was rescued, 2 Rolls Rep. 57, 58.

No Rescous can be on a Scire fac' for Goods, but in such case the Party shall have Action on the Case: And a Rescous lies only on a Capias which lies against the person, and Cro. Car. 515. Sly and Finch's Case, which is full as to the Point, and was as follows, Lit. Rep. 297. the Sheriff of Surry and Alderton's Case, Hetly 145. Mesme Case.

Scire fac' was brought against Finch Sheriff of Glouc', for that the Plaintiff having brought a Fieri fac' directed to Finch, he retorned that he had taken Goods into his Hands to the value of 72 l. and had sold as much of them as a­mounted to 11 l. and the residue remained pro defectu emptorum till such a day, at which time he putting them to sale, they were rescued from him, upon which retorn the Scire fac' was brought to shew cause, why the remaining Debt should not be levied on his Goods: To this the Defendant Demurrs. All agreed that the Retorn is not good. But the Question was, Whe­ther he hath charged himself by this Writ, Cro. Car. 515. Sly and Finch, Sanders 340, 343. Mildum and Smith, 2 Keb. 789, 821. Mesme Case.

And per Cur' he is chargeable by this Retorn. Where the Sheriff makes himself charg­able by his Retorn. If he had retorned only qd' remanent pro defectu emptorum, therein he had done his Office, and in such case on the Election of a new Sheriff, a Distring as Vicecomit' shall Issue to sell the Goods, and to deliver the Money to the new Sheriff. But when he saith further, that they were re­scued out of his Hands, therein he hath mis­demeaned himself. And by Dodderige, the She­riff Vend' ex­ponas. hath charged himself by this Retorn, as well in regard of his Misdemeanor; as also, that he hath his remedy over against the Rescoussers: Nor can the Court award a Writ of Venditioni ex­ponas, because its against his own Retorn. But if it be objected, that perhaps he had seised the Goods again, so as he may sell them on a Ven­ditioni exponas, if so, then he ought to have plead­ed Plead. it to the Scire fac' and it had been good.

Action on the Case.

Lynn and Cunninghams Case. It was a great Question, if one shall have Action against the parties that rescued. Three Judges were of Opini­on he should, tho' it was well objected, if he shall have Action against the party, he shall also have Action against the Sheriff, and so betwice satisfied, and the Sheriff shall have Action against the party, and so he shall be twice charged.

By Richardson, a Man in some case shall have Election of Action, and both are but to reco­ver Damages; a man had an Execution against one, another saw the man and conveyed him out of sight; Action on the Case lies against him, and perhaps the Sheriff is dead, and he shall have no remedy.

Harvy ad idem: The Law gives a man Re­medy against the party that doth the wrong. If an Action on the Case will lie for hindring a Sheriff in Executing his Office, as it was adjudg­ed in Semain and Greshams Case 5 Rep. à for­tiori when it is actually done, and he is rescued out of Custody.

Cro. ad idem that the Action will lie; there is a mischief on both sides; the Defen­dant may be twice charged, and the Plaintiff may lose his Debt; and if the Sheriff brings the Action, he may plead the Recovery by the Plaintiff. When the Sheriff made his Retorn of the rescous, there is no remedy against him; and if the party taken, be rescued before he be brought to the Gaol, there is no remedy against the Executors of the Sheriff. If Debt be brought against the Sheriff, and in that a recovery, the Plaintiff shall never take the Defendant again; and so if he bring Action against the party and [Page 278] recovers, the Sheriff may plead that; and Fitz. N. B. 12 is doubtful.

Hutton contra, That the Action doth not lie. The difference is good where a man is arrested upon mean Process and rescued, and after be­comes nonsolvent, so that they who rescued him are the cause of the loss of my Debt, it is a wrong upon which he may be Indicted, yet the party shall not have remedy against him, because he may proceed. Yelverton of the same Opinion, and agreed the difference.

By Hutton, upon mean Process the Sheriff ne­ver had remedy for the Rescous, but he shall re­torn the Rescous; but upon Execution he shall not retorn the Rescous, but have an Action, and the party is not prejudiced, for he shall have an Action against the Sheriff, tho in Judgment of Law the party is liable.

Remedy against the Rescouser by Action and Indict­ment.

The Rescouser shall be doubly punish­ed, by the King, and by the party; upon the Retorn of the Sheriff, he shall be fined to the King, and Attachment shall issue out against him, and the party shall have a Writ of Rescous against him, and so shall the Sheriff too.

Action on the Case lies against the party that rescoused, by the party who had the Loss, and he shall not be forced to Sue the Sheriff, for per­haps the Sheriff is dead, and then no Action lies against his Executors ( actio personalis moritur, &c.) and if the Plaintff recover the parties may plead it if they be sued by the Sheriff, so as there is not any danger of being doubly charged; so is Hoppings Case 2 Keb. 340. Action on the Case lies against the Rescuer as well as the Sheriff. [Page 279] But as to the Case of Myn and Caughton, it is well reported and agreed by the Judges in Hetly. p. 94. by the name of Lyn and Cunningham, which was full to the Point, and the Reasons in re­spect to this and other cases of like nature, are weighty; I have set down as it is in the Book, with the Reasons of the Judges that differed in Opinion. Cro. Car. 109. Mynn and Coughton. 2 Keb. 340. Hoppings Case. What Da­mages the Rescouser shall an­swer.

The Defendant rescued B. S. out of the Bay­lisff hands when the said B. S. was arrested by Alias capias out of the Kings-Bench, which Writ is only in nature of a Plea of Trespass; the party who rescued him shall answer in this Action, Damages for the Debt, which was 300l. because by this means the Defendant lost his Debt, but if the Sheriff or Bayliff in this case had only suffered a negligent escape, they should be charged on­ly with the Damages in the same Plea as the Writ supposeth, and nothing for the Debt. Lanes Rep. p. 70. Kent and Kelloway.

Remedy against the Rescouser by Indictment, and for what reason quasht or reversed.

Error was brought to reverse an Indictment of Rescous and Ryot, and the Errors Assigned were.

1. There was a Warrant to three conjunctim & divisim to arrest H. and two of them ar­rest him, it ought to have been by one or all three, because it is a Ministerial Act, 14. H. 4. 34.

2. Juratores pro domino Rege praesentant, and do not say 12 Jurors present and peradventure, but eleven did present. Tr. 2 Car. 1. Harrison and Erington.

The Names of the Jurors ought to have been certified, for peradventure they were not pro­bi & legales homines, but Villains and Outlaws, 15 H. 4. 41.

Note, an Indictment before Coroners, which found B. felo de se, was quashed, because it did not appear it was per sacramentum proborum & le­galium hominum.

4. It is found that the Sheriff by vertue of a Writ directed to him came, &c. and upon this Rescous was made by H. &c. and it appears not what manner of Writ it was ( viz. Eleg.) Capias, &c. and if there were no Writ there can be no Res­cous; and albeit he had no Writ, yet if Executi­on were done by vertue of another Writ, the Sheriff mi­stakes the Warrant. party may disobey it (if he be not a Bayliff known) as if on Hab. fac. seisinam the Sheriff makes a War­rant as on a Capias. Tr. 2. Car. 1. Harison and Exington.

An Indictment for a Rescous retorned against one in B. R. ought not to be quashed, altho it be erronious, except the person Indicted for it do personally appear in Court. Pract. Reg Tit. Rescous.

Indictment of rescous ought to express, the Indict­ment not to be uncertain. place where and the time when the Rescous, or else it is ill for the uncertainty, Pract. Reg. Tit. Res­cous.

Retorn of Rescous.

By Stat. W. 2. c. 39. a Retorn of Rescous is forbidden, for redundat in dedecus domini Regis. The Sheriff may take the posse comitatus post vel ante Queremoniam, as well before as after com­plaint made, and the Delinquents must be Upon a voluntary return (if i [...] the▪ Sheriff is not si [...]ea­able, but Action lies against him. punished coram Rege in the Kings-Bench, Co. 2 Inst. 45.

Note, the Court never sines a Sheriff for the ill retorn of a Rescous, because it is voluntary, but they allow exceptions to quash it, because the party cannot Traverse it: But where he is compellable to make a Retorn, he is finable, but the party shall have his Action on the Case. [Page 281] Yet in Chamber's Case, 2 Keb. 358. the Sheriff is Finable for retorning a Rescous on Fi. fac'; but the Retorn is well enough as to the party, 1 Keb. 878. Burrough's Case, 1 Roll. Rep. 389. Proby and Lumley.

Now as to the Ill Retorns of Rescous, and the Exception to quash it, I shall briefly cite the Cases Adjudged in our Books, for the more per­fect Direction of such Retorns hereafter to be made.

The Retorn of a Rescous, without mentioning The Re­torn must mention the place where it was made. the place where it was made, is void. The Sheriff retorns Rescous upon him at Dale in the County of Bucks, which was the County into which the Process was awarded. Exception was taken, because he saith not ( infra ballivam meam.) But non allocatur; for if it be within the County, it cannot otherwise be taken, but to be within his Bailywick, Mo. 422.

Upon a Latitat awarded, the Sheriff retorns a Rescous tali die; but there is not any place mentioned where the Arrest was made. Its a void Retorn. For non constat, whether the Ar­rest and Rescous were within the County and Jurisdiction of the Sheriff, Yelv. p. 51. Woolfrost's Case.

The Sheriff retorned a Rescous against the Father and Son; against the Father for rescuing his Son, and against the Son for rescuing him­self.

As to the Father, the Retorn was sufficient as to time and place: But that against the Son wanted such Certainty.

By Dodderidge, The Retorn is good: It shall be intended at the same time that the Father re­scued the Son, that the Son rescued himself, and the word ( Et) is a Conjunction Copulative; and compleats both together.

Haughton contra. A Prisoner may be rescued by others, and he not know of it; and the Rescous may be at several times, 2 Bulstrode 137.

The Sheriff in his retorn of Rescous said, That he was in Custodia ballivi Itinerantis, and that a Rescous was made to his Bayliff Itinerant. Its not good. Aliter, if it had been Bayliff of a Liberty, March. Rep. p. 92.

Rescous quasht, because it is quod arrestavit—without saying in custodia sua habuit—, 1 Siderfin 332.

The Sheriff ought not to say, He rescoused To say, he rescued him out of the Custody of the Bayliff, is not good. him out of the Custody of his Bayliff, but out of the Custody of the Sheriff: But it is good, if it were by the Bayliff of a Liberty.

Retorn of a Rescous was not quasht for say­ing, in custodia for è custodia; but because he saith cepit & arrestavit, and not in custodia habuit, it was quasht; for an Arrest may be only by word, 2 Keb. 177. The King against Claypoole, and p. 227. The King against Sympson.

Exception was to the retorn of a Rescous, because it was è custodia ballivi mei. Sed non allocatur; for there is veritas legis & veritas facti, and if either be alledged its sufficient; therefore its as good as if it had been è custodia mea. But Keeling held it ill; because a Retorn must an­swer the Law, and the difference has alwas been between a Sheriffs Bayliff, and a Bayliff of a [Page 283] Franchise. And according to the Opinion of Keeling is Dyer, 7 El. 241. Dyer 241. 39 H. 6. 42. 2 Roll. Rep. 263, 354.

If the Sheriff retorn in Banco a Rescous made to his Bayliff Errant by these words, viz. Virtute istius brevis, &c. mandavi ballivo meo Itineranti, &c. qui mihi sic respondit, quod arrestavit, &c. shew­ing the year, day and place; and that a Rescous was made, &c. This Retorn is not good, because this Arrest is the proper Arrest of the Sheriff, and no credit is to be given to the Bayliff Er­rant, Mich. 8 Jac. in Scaccario, Kent and Heltway's Case.

But per Cur. such a Retorn in Banco Regis is good enough, because the Presidents of the the Court are accordingly; and such Retorn by a Bayliff of a Franchise in B. R. is good.

Tho' its faid 2 Roll. Rep. 78. the Sheriff ought to retorn Rescous made to him, and not to his Bayliff, yet in truth the Force is made to his Bayliff; but it is according to the different course of the Courts.

Two Exceptions were taken to the Retorn of a Rescous:

1. Feci Warrant', but saith not sub sigillo Officii. Non allocatur, because he saith feci Warrant' di­rectè, and its not a Warrant unless it be sub sigillo.

2. It was not retorned, That it was extra custod' of the Sheriff, but of the Bayliffs. Sed non allocatur; for the Custody of the Bayliffs Virtute warranti of the Sheriff, is the Custody of the Sheriff, Sir Tho. Jones Rep. 195. Penfold's Case.

A Rescous was retorned in this manner by the Sheriff; ( viz.) in the Recital of the Arrest he said, Mandavi ballivo, &c. qui virtute praedicti Warranti arrestavit, &c. and after shews the Rescous.

Exception was, He Commands his Bayliffs to In the Retorn he makes no mention of his Warrant. Arrest, and saith, That by virue of the said Warrant they did Arrest, &c. and makes no mention of any Warrant, but of his Command to them. Had this been to a Bayliff of a Li­berty it had been good; but not to those which are Bayliffs Itinerants.

But per Cur', he cannot Command a Bayliff of a Liberty, but by his Warrant.

The Clerk of the Crown said, The Common Form is, Feci quoddam Warrantum; but to a Bayliff of a Liberty it is Mandavi.

A General Warrant to a Bayliff of a Liberty ( viz.) for all Arrests is good; but not to a Bayliff Itinerant, by Haughton.

But by Sir James Ley Chief Justice, Tho' the Common Form be Feci quoddam Warrantum, yet this tantamounts: For the Mandate of the Sheriff to the Bayliff is the Bayliffs Warrant. However a Rescouser as to this cannot take advantage, but shall be fined to the King, 2 Roll. Rep. 263.

The Sheriff retorns a Rescous, and recites The time and place where the Warrant was made, not shewed in the Retorn. where a Latitat was to him directed, &c. he made his Warrant to the Bayliff, who arrested W. and that G. made the Rescous. It was held to be good, tho' he doth not shew the time and place of the Warrant, 2 Roll. Rep. 255. Webb and Withers.

A Rescous was Retorned in this Form by the Sheriff:

CEpi corpus praedict. A. & idem A. fuit in custodia mea virtute brevis praedict. quousque B. C. & D. Vi & armis (tali die & anno) in E. & F. ballivos meos insultum fecere vulneravere & male tractavere, & A. de custodia mea adtunc & ibidem rescussere.

And two Exceptions were made:

1. He doth not shew any Warrant made to Mention no War­rant. the Bayliff. Per Cur'. The Prisoner is alledged to be in custodia of the Sheriff, and the Rescous to be from him, and therefore need not speak of the Warrant; and this that is spoken of the Bayliff is Surplusage.

2. The Rescous is not well retorned, because Rescous retorned without Vi & armis. the Battery is alledged to be Vi & armis. Per Cur', This is Surplusage, and the Rescous is not re­torned to be Vi & armis, Latch. p. 184.

Quaere, If a Rescous may be retorned without Vi & armis?

But this Case is more truly reported by Rolls. Retorn quasht.

If a Sheriff retorn, That he by force of a Capias took the Body of J. S. & ipsum habuit in Custodia quousque J. D. & J. N. Vi & armis such a day, insultum fecer' in W. S. & W. N. his Bayliffs, & praedict. J. S. adtunc & ibidem è custodia sua rescusser' & praedict. J. S. seipsum rescussit. This is not a good Retorn, because it doth not shew that the Bayliffs had any Authority to Inter­meddle: And to lay a Rescous without Vi & armis is not good; and the Vi & armis goes to the first Clause only, Pasch. 3 Car. 1. Wilcox's Case, 2 Roll. Abr. 457.

The retorn of a Rescous was quasht for these Exceptions:

1. It is said, Feci Warrantum meum Thomae Taylor; and does not say, Tho. Taylor was his Bayliff.

2. He doth not say, for what Cause he made his Warrant: And so it appears not, whether it was lawful or not, Stiles Rep. 159.

In a Cap. Utlagat. before Judgment, the Sheriff retorned, That J. S. and J. N. rescoused the party. Its good without addition: For no Statute nor Book will compel the Sheriff to give Additions in this Case. And the Rescousers which were present were Committed to the Fleet, Winch. Rep. p. 10.

If the Sheriff retorn, That the party himself, simulcum J. S. & J. N. made the Rescous. It was said it was not good; because there is not any Aver­ment that J. S. and J. N. rescued him. And if it Insensible Retorn. had been, that J. S. simulcum N. rescusserunt A. it is not good against J. S. because it is res­cusserunt, which is Insensible, Mich. 14 Car. 1. B. R.

Retorn of a Rescous was excepted to, because Res [...]ue by several retorned. it is said quod adtunc è custodia ballivi ceperunt & rescusserunt; and doth not say, & quilibet eorum rescussit. Sed non allocatur: For it shall be in­tended all of them did it; and tho' their Fines are several, their Offence shall not be intended so, 2 Keb. 436. Le Roy versus Suffeild.

Rescous was retorned by a Sheriff upon Ar­rest by special Bayliffs hâc vice, (scilicet) That Cooke and seven others made Assault upon the Bayliffs, &c. and the party Arrested cepit & [Page 287] abduxit, where it should be ceperuns & abduxe­runt. Per Cur▪ The Retorn is good against Cooke, and void against the rest; and Cooke (against whom the Capias issued) was admitted by his Attorney to make fine, which was 6 s. 8 d. Lit. Rep. p. 2.

A Bayliff of a Liberty hath Retorn of Writs, Rescue from a Bayliff of a Liberty, how to be retorned. and therefore a Rescous made from him must be retorned, to be out of his hands. But a Rescous made from the Sheriffs Bayliffs, must be expressed to be out of the hands of the Sheriffs Bayliff; for the Bayliff is but the Sheriffs Ser­vant. But as to this last, it is not Law, vide supra, Stile's Rep. 417.

The Retorn being made by the Bayliffs of a Franchise, and saying è custodia sua, is not good, unless he saith meâ, 2 Keb. 177. Le Roy versus Claypoole.

The Sheriff made a Warrant Ballivis suis, to arrest such a man, and the Bayliff of the Li­berty retorns a Rescous; yet its good, Marsh. Rep. p. 25.

R. and W. were retorned by the Sheriff, to have made a Rescous upon such a Bayliff, to whom he directed his Warrant to execute his Writ. Per Cur. This Retorn is insufficient, be­cause it doth not appear that the Bayliff had Retorna brevium, which ought always to be men­tioned Rescue from the Bayliff of a Liberty how to be R [...]torn [...]d by the Sher [...]ff. on the Sheriffs Retorn. And this must be so, if he retorn it as the Retorn of a Liberty: But here in the principal Case he retorns it in his own Name, wherefore it shall be intended it was his own Bayliff; and tho' he name him in his Retorn, as Bayliff of a Liberty, yet that is but a void addition, Cro. El. 780. Lady Russel and Wood.

Tho' the Sheriff arrests a man within a Liberty in the same County of which he is Sheriff, and the Prisoner is rescued, yet the Rescous is unlawful; because the Arrest is good, and its no Offence unless it be to the Lord of the Liberty, Yelv. p. 51. Winch's Case, cited in Wool­freston's Case.

Retorn of a Rescous or Mean Process was Retorn of Rescous on mean Process. quasht, because it saith ad Largum ivit quo voluit, and not ad Largum quo voluit ire permiser', 2 Keb. 318. Le Roy versus Lisle.

Forms of Retorns of Rescous, vid. Dalton 215, 216.

Rescous. Of Laying the Action, Declaration and Pleadings.

A Warrant was from the Sheriffs to the Bayliffs of the Liberty of Pomfret, who did Execute it, and there was a Rescous: And the By Bayliff of a Li­berty. Bayliff may have the Action against the Res­cuers in his own Name; but he failed in proving it to be a Liberty, and was Nonsuited, &c. And Note, He was put to it first to prove the Liberty by Records. Foster and Legard's Case at Yor [...] Assizes.

B. brought out a Latitat tempore Eliz. versus E. Arrest in one Kings time, and Rescous in anothers who was served in the time of King James, and E. rescued himself, and the Rescue was retorned by the Sheriff of Essex. Per Cur. This is good; for a Latitat is within the Statute of 1 Ed. 6. and is not lost or abated by the Demise of the Queen: For its not any Original Writ, but is in the nature of an Execution, grounded on a Record precedent, viz. upon a Bill of Middlesex, so that the Latitat issues upon a Suit depending; and the Latitat, the nature of it▪ Arrest was good, and so the Rescous, Yelv. Eve­rard and Blach.

In the Declaration the time of the Arrest must How to de­clare. be shewed upon which the Rescous is supposed to be made; and it must be shewed, that the Party Rescoused was in Custody of the Serjant, or She­riff from whom he was rescued, Stiles Rep. 432. Gough and Cann.

The Plaintiff Declares, Whereas one S. was indebted to him by Bond in 300 l. and for Non­payment he Sued a Latitat out of the King-Bench directed to the Sheriff of, &c. to Arrest him, re­tornable at such a day, intending upon his ap­pearance, and Bail put in according to the Course of the Court, to Declare against him, (and shews the Course and Custom of the Court, that he upon appearance should put in good Bail, that if Judgment were had against him he should satisfie the Condemnation, or render his Body in Execution) That he delivered the Writ to the Sheriff of Nott', who made a Warrant to the Bayliff of the Kings Liberty of Newark to ex­ecute it; which Warrant was delivered to the L. Deputy of the Lord Burleigh, Ballivi Li­bertat' Domini Regis Wapentagij sui de Newark; who by force thereof Arrested the said S. That the Defendant rescued him out of the Custody of the said Deputy, and he Escaped, &c. Errors moved in the Exchequer Chamber.

First, Because the Custom of the Kings-Bench is alledged to be, that if any one Arrested comes sub Custodia Vicecomit', he s [...]all put in Bail, which Custom of the Court of putting in Bail. is not so, for he shall be in Custod' Marr' and no Declaration can be against him sub Custodia Vice­comitis. But non allocatur, that which is alledged of the Custom of the Court is Idle.

Secondly, It is said, he was rescued from That he was rescued from the Deputy of the Bayliff of a Liber­ty, good. Difference between Action on the Case, and Re­torns and Indictments of Rescues. the Deputy of the Bailiff; where it ought to have been from the Baliff himself, or from the Sheriff: Sed non all [...]cat', for there is a diver­sity in this Case, which is an Action on his Case, wherein he shall shew the Truth, as in rei veritat' it is, and not as it is upon the Re­torns of Rescues and Indictments, which say it is done to the Sheriff or Bayliff himself, Cro. Jac. 241 Kert and Ellwis. Like the Case of Burgh and Apleton Sheriff of Essex, Lanes Rep. 70. Mesme Case. In that Case it was declared, That the Bayliff of a Liberty arrested the Party, and de­livered him to the Sheriffs Deputy, and that he rescued him from the Sheriffs Deputy, Dyer 244. And Judgment pro Querente in that Case, and in Lane's Rep. p. 70. Burgh and Apleton's Case, in the same Case saith, that the course of the Kings-Bench is always so in Retorn of a Rescous, to be out of the hands of the Deputy Bayliff; notwithstan­ding Dyer 7. El. 241. And the Declaration was held good, that he sued an Alias Capias, without mentioning a Latitat, before this Arrest was made by the Deputy Bayliff of Newark. But the main Question was, Because it doth not ap­pear, that the Bayliff had a Power in his Patent to make a Deputy Bayliff. No Escape upon a Tor­tious Ar­rest.

The Action is brought in Suffolk against the Sheriff of Suffolk, for Arresting the Defendant in the first Action upon a Capias Utlegat' and suf­fering him to Escape, and the Defendant in the first Action is named of S. in Com' Norfolk, and the Arrest is supposed apud S. praed' so the Ar­rest is supposed in the County of Norfolk, and then it is Tortious, and there is not any Escape thereon. Per Curiam, its an incurable Error, Cro. Eliz. 887. Eden and Floyd.

In Action or Case on a Rescous, The Plaintiff Declara­tion of Ar­rest at L. and rescue at W. the same day (being 200 miles di­stant yet not Error. declares, that A. was indebted to him by Obli­gation of 20 l. and that he Sued a Writ against him directed to the Sheriff of Cornwal, to take A. &c. and that the Sheriff 1 Oct. 6. Car. Arrested him at L. in Com' Cornub' and after the Defen­dant at Westminster, the praed' 1 die Octob. re­scued him out of the Custody of the Sheriff; and on non culp' Verdict and Judgment vers. Quer' he brought Error and Assigned this for Error, for that it was impossible he should be arrested at L. and the same day be rescued at Westm' (200 Miles distant,) yet the Court will not intend it to be impossible. But however, see what Reasons the Plaintiff shall have to assign Er­ror on his own Declaration, 1 Rolls Ab. 523. Ken­dal and Kendal.

Trespass and Assault laid and tried in Somer­setshire, the Defendant justified by Warrant to the Sheriff of Dorset, and that the Plaintiff endea­voured to rescue himself, and Issue de injuria sua propria. Gold after Verdict prayed Judgment, because within the words of 16 and 17 Car. 2. c. 8. there being three Judgments in the Point. Wise and Adderly in C. B. Trin. 26 Car. 2. Croft and Tryal shall be where the cause of Action ariseth. Winter, and Croft and Bays: But the Court were not satisfied with these Judgments, and resolved that the Statute intended the Tryal where the cause of Action ariseth. But there was a Replead', be­cause the Defendant Traversed absque h [...]c, that he was Guilty aliter vel alio modo. The reply was he was Guilty aliter & alio modo, which was a wild Issue, 3 Keb. 552, 612, Masters and Wood.

Pleading.

In Action on the Case on Escape upon mean Diversity between pleading Rescous in Debt on Escape. Averment. Process. Defendant Pleads a Rescous ever since, 6 Car. 1. It hath been held a good Plea. Per Cur' If it be retorned, its a good Plea, and it need not be averred in the Plea that it was retorned. But in Debt on Escape its no Plea, 3 Keb. 513. Hill and Mountague Bayliff of West.

In Action on the Case for a Rescous one may If not Guilty may be pleaded to the She­riffs Retorn of Rescous. Traverse, &c. but Quaere, if not Guilty may be pleaded to the Sheriffs Retorn of a Rescous, 1 Keb. 258. Rest. entr' 580. le Roy versus Mayor of Hereford.

Scire fac' to have Execution of a Judgment in Debt. Defendant Pleads, That at another time the Plaintiff had sued Execution by Capias ad satisfaci [...]nd', and that he was taken thereupon. Plaintiff replies, True it is, he sued a Ca. sa. and the Defendant was taken thereupon, but he pre­sently rescued himself and escaped. Replication is good, As there is no cause for the Defendant to to have Audit' Querela when he is escaped and taken again, unless it be for a voluntary permis­sion by the Sheriff, so there is not any bar for the Plaintiff to have new Execution; And tho' its no good Retorn on a Ca. sa. that the Defen­dant rescued himself (for the Sheriff at his own peril ought to have kept him) nor any Plea in Debt on Escape; yet the Party himself shall never take advantage of his own Tortious Act. And Scire fac' after the year is well maintain­able, Cro. Car. 240, 255. Robinson and Cleyton.

Venue. Verdict.

Action on the Case on Rescous is out of the Common Rules of the Court to alter the Venue. But its in the discretion of the Court on cir­cumstances to alter it, as Action brought against a Bankrupt may be brought in the County, or here where the Commission is awarde [...] ▪

Where a Man may lawfully rescue himself, 1 Keb. 346. Where a Man may rescue him self and where not.

There is a difference between a Warrant of Record, and a Warrant or Authority in Law, for if a Capias be awarded to a Sheriff to Ar­rest a Man for Felony, albeit the Party be in­nocent, yet cannot he make Rescous. But if the Sheriff will by Authority which the Law gives him Arrest any Man for Felony who is not Guilty, he may rescue himself, Coke 1 Ins [...]. 161. a.

Note, Four Nobles Fine, is a general Fine imposed for a Rescuer, Sir Thomas Jones p. 198.

In Debt sur Escape versus Vic. Plaintiff de­clares, That J. S. and his Wife were in Execu­tion, and that she escaped. On nil debet special Verdict sound, that the Baron was in Execu­tion and that he escaped; and further, that the Wife was not taken in Execution, (being for Debt contracted before Coverture.) Yet Judg­ment pro Quer. the Verdict was not in the whole persuant to the Declaration, because they found the Hubband Escaped, 1 Siderfin 5. Roberts and his Wife against Herbert.

In Action on the Case upon a Rescous and Es­cape: The Jury find the De [...]t due to the Plainti [...], the prosecuting the L [...]itat for this Cause, the making the Warrant hereupon to the Sheriff, &c. Cro. Jac. 485. Hodges and Mark.

CHAP. XXI.

Of Escapes. Some Maxims and Diversities premised. Escapes, as to Mean process, and as to Execution. What shall be or amount to an Escape of a Pri­soner out of Execution, or not. Of Escapes in respect of the Old and New Sheriff, and of the Prisoners being▪ delivered over. What thing or act shall excuse an Escape, or in what Cases the Sheriff or Gaoler shall not be Answerable for an Escape. Of Erroneous Process. Where the Escape of one shall not be the Discharge of the other; and where the oiher shall have Audita Querela, or not. Actions of Debt, or on the Case, by the party against the Sheriff for an Escape, and who shall have such Action. To whom it shall be said an Escape, or not, at Election.

Of Escapes.

ESCAPE is where one that is Arrested, or Imprisoned on the Arrest, comes to his Liberty before he is delivered by Order of Law.

But before I treat of Escapes, it will be very advantagious for the better understanding thereof, to set down some few Diversities, which will help to settle ones Judgment in reading and considering the Cases ensuing.

Diversities.

1. Between a Negligent, and a Voluntary or Permissive Escape. A Permissive or Volun­tary Escape is by the assent, privity and know­ledge of the Sheriff, Gaoler, &c. Vide postea, Where the Prisoner may be retaken or not.

2. Between an Escape on Mean Process, and on Execution. In Escape upon the Arrest by the same Process; as a Cap' ad respondend', the Writ ought to▪ surmize ad largum ire permisit, & non comparuit ad diem; because the party was Bailable, and the Sheriff might suffer him to go at Large. Aliter, if the Ar­rest be upon Execution; as a Cap. ad satisfac. There permisit ire ad largum is good enough. Noy 72. Sheriff of Nottingham's Case. Vide infra.

3. Between an Escape for Debt, and for Felony or Treason.

4. Between an Escape by a Sheriff or Bayliff, and an Escape caused by Rescousers. A Rescouser shall be charged with the Debt. The Sheriff or Bayliff for a Negligent Escape shall be charged with the Damages only in the same Plea, as the Writ supposeth, and not with the Debt, Lanes Rep. p. 70.

5. Between an Escape in Fact, and an Escape in Law: As where a man may be in Custody without actual Arrest.

[Page 296]6. Between Error in the Proceedings and a Nullity of the Record, and how the Sheriff shall take advantage of either.

7. Between an Escape in the Life of the Testa­tor, and an Escape in the time of the Exe­cutor, upon Execution in the time of the Testator.

Note, If Judgment be Reversed before Action of Debt brought for an Escape out of Execu­tion, the Action is gone, 1 Sand. 38. Jones and Pope, 8 Rep. 142. Dr. Drury's Case.

Note, It was said by Twisden, in 16 Car. 2. B. R. ‘The occasion of so much liberty in the Marshalsea is, that the Marshal is not charg­able but by Bill, which must bear Teste in Term time; and so in the former Term the party is not Escaped: And by the first Day of the later Term the Prisoner generally is to return to Prison, and so no remedy for the party, 1 Keb. 794.’

Of Escapes as to mean Process.

When a man is in Custody of the Sheriff by Where a man may be in Custody without actual Arrest, an Action for the Escape shall be good. Process of Law, and another Writ is delivered to him to take him, presently in the Judgment of Law, he is in his Custody without actual Arrest, quia Lex non praecipit inutilia; as A. recove­red in Debt; Defendant was Outlawed, and after the year the Plaintiff procures a Capias utlag' and delivers it to the Sheriff of London, after the Serjeant Arrests the Defendant to an­swer I. S. before the Sheriff, the Plaintiff delivers [Page 297] the Sheriffs Warrant to the Serjeant (who had the Defendant in his House) to Arrest the De­fendant, the Serjeant refuseth, and after the She­riff suffers him to go at Large; Plaintiff brought Action against the Sheriff, supposing he had Ar­rested him, and Defendant plead non permisit, &c. 5 Rep. Frost's Case.

By Windham in Benskins Case, by Law the Bayliffs ought not to hurry away any immedi­ately to Prison, but he may call any other per­sons in aid, and so may commit the Prisoner to them. 1 Keb. 483. Benskins Case.

If by assent the Sheriff suffer me to go at Large no Action lies for the Escape.

Of Escape out of Execution. What shall be said an Escape of a Prisoner out of Execution for Debt or not.

If a man in Execution be suffered to go at Large for a time out of the County, and to return again, and this upon Bail or Mainprise, yet this is an Escape, for he ought to be kept in arcta custodia. So if he be suffered to go at Large to any place within the County, and to return again, so if he be suffered to go at Large within the same Town where the Prison is, it is an Escape, tho, he retorn within his time. Plowd. 36. b. Platts Case. 3. Rep. 44. Boyntons Case. Hob. p. 173. Earl of Essex.

The Case was, A. recovered upon a Plaint in London against B. and had him in Execution in Ludgate. A. died Intestate. B. was permitted by the Keeper of Ludgate to go at large into South­wark with J. S. Servant of the Keeper, and by the Command of the Keeper. The Admini­strator [Page 298] of A. brought Debt against the Sheriff of London upon the Escape. Per Cur. It was an Escape. He that waited upon him into Surry could not be Officer to the Sheriff of London, and so he had no Keeper: For the Power of a Sheriff does not extend beyond his own County, unless in Special Cases. And the party might have Action of False Imprisonment against him, tho' the Baston or Servant waited on him there; being Voluntary, Dyer 166. accord.

If the Sheriff removes his Prisoner out of the County without being commanded, 'its an Es­cape, and if he remove Prisoners for ease and delight in the same County, it is an Escape, as a Prisoner went to a Bearbaiting with his Gaoler in the same County, and it was adjudged an Escape; so if the Sheriff permit his Prisoner to go to work, 'its an Escape. Hetly. p. 34.

To suffer a Prisoner to walk in the Town, tho with a Keeper, is an Escape, unless it be upon a Habeas Corpus from a Court of Justice Hob. p. 202. If the Habeas Corpus bear Teste in the end of one Term retornable in another, this Writ will not warrant the Prisoner to go at Large in the Vacation, Hob. ibid. Balden and Temple's Case; for tho the Sheriff may remove his Gaol from one place to another within his Bayliff-wick, yet he must keep it and his Prisoners within it, and not suffer them to go at Large out of the Prison, tho he himself be attending on them, without an Habeas Corpus from some Court of Justice. And let Keepers of Prisons be­ware when they receive an Habeas Corp. from the Chancery or any other Court bearing Teste in the end of a Term to have the Body of one in Execution in the Court the next Term, that they do not by Colour of such Writs suffer the party to go at Large all the mean time (as it is some­times [Page 299] practised) for the Writ warrants no more than that he be brought out of Prison only for that purpose, and only for so much time as in Judgment of Law as shall be convenient and necessary for the Execution of the Writ and no more, which in privilegiis odiosis must ever be strict.

By Hales in Lutterel and Mosedells Case, an Habeas Corpus. Hab. Corpus out of that Court to which the party is a Prisoner doth justifie the Gaoler in Assise­time, but otherwise if it be out of any other Court; but out of which soever, if the Authority of the Writ be-Executed either in Time or Place at the pleasure of the Gaoler or Prisoner 'its an Escape, as being carried a month before the time, and staying a month after; also the Habeas Corpus being at a place and day certain, 'its no pretence of stay at any other places, or ultra, to search Writings or to speak with Witnesses, and immediate is a convenient time without wilful delay, so is Mod. Rep. 116 tho the Sheriff be not bound to bring the Prisoner the direct way, yet he ought not to carry him round about a great way, for the accomodation of the party, if he do it is an Escape. 3 Keb. 305. Lutterell and Mosedell's Case, and Mod. Rep. 116. Mosedell's Case.

But upon this Point of the Prisoners being suf­fered Diversity. to go at Large, there is a diversity to be well heeded. And that is,

Between one in Execution within the Fran­chise or County where the common Gaol is, where the Office of Sheriff or Bayliff extends, for there if the Sheriff, &c. assent that one in Execution shall go out for a time, altho he re­torn by the time, or if he suffer him to go at Large by Bayl or Baston, it is an Escape. But [Page 300] when the Sheriff, &c. is commanded by Writ to have the Body at Westminster, he may be a Keep­er of him in another County as in the Case of Bennet and Halsey Mo.—3. Rep. 44. Boyston's Case.

The Plaintiff was taken in Execution by the Sheriff of B. and by an Hab. Corp, he was brought to Smithfield by the Gaoler of B. and there at eight a Clock at night the Prisoner went into Southwark and none with him, and there continued all night, and the next morning he Habeas Corpus ad Recipiend'. retorned to Smithfield to his Keeper, and there continued with him till the retorn of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants Inn, and he retor­ned his Writ, and the Chief Justice committed him to the Marshalsea, and it was adjudged to be no Escape in the Sheriff, so in Burton and An­drews Case. Mo. Rep. Bennet and Halsey.

For the effect of the Writ is performed to have him there at the day, and the Writ does not command him to bring him the usual way, but to have his Body at the day, and so if one be She­riff of two Counties and had Arrested two by two several Capias in two Counties, he may bring one into the other County to have them both at Westminster, and may bring them the su­rest way.

If a Gaoler on an Hab. Corp ad Testificandum Habeas Corpus ad Testificand. bring one whom he had in Execution to be a VVitness, by Twisden, it is an Escape, and so has been adjudged. In Rolls his time, the Court was moved for an Hab. Corp. for a Prisoner in the Kings-bench, that he might be a Witness in a Cause in Darby Shire at the Assises, but it was de­nied; but he said he knew it granted for one to be a Witness at a Tryal at Guild Hall, but at the Charges and Peril of the party, for whom he was to be a Witness if he Escape 14 Car. 1. B. R. [Page 301] And in 24 Car. 2. B. R. Adam's Case, the Court granted an Habeas corpus for a Prisoner in the Marshalsea to Testifie in a Cause in Middlesex. But Hale Chief Justice said, He would never grant it in his Chamber, being but a private Person, and the party may escape, which would be remediless, Siderfin p. 13. Fitz-Jeffreys.

If one be in Execution in the Fleet, or other The King cannot License one to go at Large. place, at the Suit of the King, or of a Common person, and the Warden or Gaoler (by the Command of the Lord Chancellor or Treasurer) suffer him to go into the Country with a Keeper to gather Money, the sooner to pay the King; and he goes accordingly, and returns to Prison again: yet this is an Escape as to the Common person; for the King himself cannot License a man to go so at Large, Dyer 12 & 13 Eliz. 297.

If one be in Execution at the Suit of the King in the Fleet, the Warden may suffer him to go to his Counsel with his Keeper. But not so in the Case of a Common person, Savill's Rep. p. 29.

A man is in Execution for Debt, and a Woman being Warden of the Fleet marries the Prisoner, This is an Escape; for that he cannot be his own Prisoner, nor a Prisoner to his Wife.

So if the Sheriff or Gaoler marry a Woman that is in Execution for Debt.

Sir Gervas Clifton's Case, cited 1 Leon. 237. in Offley and Saltington's Case was, He being Sheriff suffered one in Execution and in his Custody to go and see a Play; and the same was adjudged an Escape, and the party could not be in Execu­tion again.

This Case was referred by the King to the Habeas Corpus in regard of the Plague. Judges, Trin. 12 Car. 1. Whether in regard of the Plague Habeas corpora may be granted for the Prisoners in Execution in the Prisons of the Kings-Bench and Fleet, upon Judgment in the Common-Bench and Exchequer; and it was Cer­tified by them to the Lord Keeper, that if upon Habeas corpus granted the Gaoler suffers the Pri­soners to go at Large with a Keeper or Baston, that this is an Escape, and that no Habeas corpus ought to be by the Law for this purpose, which the King well approved of.

And in primo Caroli the Prisoners in the Fleet petitioned the Parliament, that they may have Habeas corpora in the Vacation, in respect of the great Plague in London; but the Parliament would not assent to it, because against the Law.

A Capias ad satisfaciend' is served upon one, who Execution served upon one who is Prisoner for Felony, and then an Escape. is a Prisoner for Felony, and Indicted, and Ar­raigned, and found Guilty, and afterwards Escapes. Debt lies against the Sheriff; for the Execution was well served upon him, and altho' his Body was at the Queens pleasure; yet he shall not take advantage of his own Tort, but he shall answer the Suit or Execution of a Common person, Cro. El. 165, 517. 1 Leon. 87, 236. Ognel and Paston.

The Sheriff delivers the Prisoner upon a void Delivery upon a void Au­dita Que­rela is no Escape. Audita querela. This is no Escape, and there the Prisoner may be taken again in Execution, Mo. 344. n. 479. Collins's Case.

But if a Scire facias had in it the words of Audita querela, its against Law, and its an Escape if the Sheriff deliver the Prisoner upon it, 1 Roll. Rep. 383.

A forged Warrant of Attorney for Satisfa­ction One deli­vered up­on a forg'd Warrant of Attor­ney for satisfaction is delivered into the Office where one is in Execution, and the Marshal lets him go. Its an Escape, unless the Attorney's hand were to it, or a Supersedeas delivered, 1 Keb. 873. Collet's Case.

If a man recover against Baron and Feme, and Debt lies upon Escape of the Wife. take both in Execution, and after the Wife is suffered to Escape; tho' the Husband continue in Prison, yet Debt lies upon this Escape against the Sheriff, in which all the Debt shall be reco­vered; for this was the Debt of the Wife, and she is as fully in Execution as the Husband: And Debt lies on it as well as Action on the Case. So if the Feme be only taken in Execution, 2 Bulstr. 320. 1 Roll. Abr. 810. Dr. Sutloff and Sir G. Reynel, 3 Bulstr. 150. 1 Roll. Rep. 204, 205. Cro. Jac. 657. Whiting and Sir George Reynel.

Where the Sheriff shall be so chargeable with a Prisoner, as to Escapes; Where the Action will lye, and in what Cases not.

The Entry of a Committitur upon the Roll In respect of the Entry on the Roll of Commit­titur. shall not charge the Marshal for Escape (if there be any after) for then it should be in the power of every Attorney to charge the Marshal. A Committitur was Ruled to be vacated, to the in­tent the Plaintiff should be at liberty to take out what Execution he will. But if the party after such Committitur entred be in the Marshals Cu­stody, and then escape, the Marshal shall be charged for Escape, Siderfin 220. Conny and Jacob.

Therefore let the Student beware of the Opi­nion in Keble (1 Keb. 775.) in this Case of Conny's, where he tells you, the Entry of a Com­mittitur [Page 304] alone is sufficient to charge the Marshal, as in Execution for Escape of a Prisoner, without actual proof of his being in Execution. But the better Opinion is in 1 Keb. 375. in Pettyware and Hamson's Case.

The Course has been always of late, that in case Committitur be entred on Record, yet it must be proved he was in Custody since that time; because it is the usual Course to enter a Commit­titur against every Defendant, tho' he be upon Bail.

Wherefore the Court ordered the Marshal to shew, whether one were in Custody or not.

Capias ad satisfaciend' was delivered to the Sheriff versus J. S. and after the Sheriff did arrest J. S. by force of a Capias Utlagat', and then the party in the Capias came to the Sheriff, and prayed that the party may remain in Execu­tion for his Debt also. And the Sheriff suffers him to go at Large, and upon both Writs Re­torned Non est inventus. Per Cur. The Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff in Escape; and it is not like where one is in the Fleet for Execution, there, if other Condemnations in other Courts be Notified to the Warden of the Fleet, he shall be chargeable with them all, 1 Leon. 263.

Scire facias lies not on the Escape of a Bail, if no Scire fac' issued out against him; for the Sureties ought not to be taken in Execution pre­sently. The Condition of Recognizance of Sureties is, That they bring in the Defendant, if he be Condemned, or to pay the Debt. Now if no Scire fac' issues out against him, the Surety being taken cannot plead the Release of the Plaintiff, or the death of the Defendant in his [Page 305] Discharge, as he might do upon Scire facias; 2 Leon. p. 29. Devered and Ratcliff.

Of Escapes as to the Old and New Sheriffs, and Delivering over.

The Sheriffs of London by Indenture deliver Escape in Law. over J. S. (in Execution at the Suit of A. and B. severally) and only mention the Execution of A. J. S. escapes; B. brought Debt against the ancient Sheriffs on this Escape. It well lies: For he cannot be in Custody of the New She­riffs for this Execution; because they were not charged with this Execution, and the fault was in the Old Sheriffs that they omitted this Exe­cution of the Plaintiff in their Indenture; and the Escape began eo instante that the Ancient Sheriff delivered the Prisoner to the New, for then they cease to have the Custody of him, and although he remain in the Rules of the Prison, its an Escape in Law, 3 Rep. Westby's Case.

The Old Sheriff Arrested one upon a Latitat, and at the day Retorned Languidus, &c. and afterwards in exitu ab Officio suo delivered him to the New Sheriff, as a Prisoner for this Cause, and the New Sheriff suffered him to go at Large. This is an Escape in the New Sheriff, and an Action of the Case lies against him; and tho' the other Sheriff retorned Languidus, &c. yet this is not material to the Plaintiff, he remains always in Prison, Cro. Jac. 380. King versus Sir Eusebius Andrews.

If the Sheriff takes a man in Execution, and after a New Sheriff is made; and before the other Sheriff delivers over, the party who was in Execution escapes. The New Sheriff is not [Page 306] chargable for this Escape, but the Old Sheriff; for the New Sheriff is not chargable with any Prisoner before delivery to him, 2 Roll. Abr. 457. Sheriff Skinner's Case.

One in Execution is willingly let go out of Prison by the Gaoler, and then came into the Gaol again; then a New Sheriff is, and then he makes Escape.

By Hobart, on a Trial at Guild-Hall, the New Sheriff cannot be chargable with him, nor answerable for him, as in Execution; for the Execution by such Escape was utterly discharg­ed. Neither can two Sheriffs be Answerable simul & semel for two Escapes, out of one and the same Execution at the same time, Hob. 202. Sheriff of Essex's Case.

One taken in Execution on Ca. sa. by the Under-sheriff, he took Money of him for the Execution and let him go: Then the Sheriff dies and a New Sheriff is, and the same Under­sheriff; and a new Ca. sa. is taken out against the party, upon which he was Arrested again, and escaped.

By Hobart, the New Sheriff is not Answerable, the second taking in Execution being never lawful, Hob. p. 202.

If the Old Sheriff keep any Prisoner after he is discharged of his Office, its an Escape, 2 Leon. 54. Smallman and Lane.

If one taken upon a Cap' Escape, and the Sheriff die, and a new Sheriff be made for the remainder of the Year; then the same person is taken by another Cap' for the same Cause, and Escape: This will not charge the new Sheriff, Hob. p. 202.

If the Prisoner walk abroad and returns in the time of one Sheriff, and escape in the time of another Sheriff, this is no Escape in the time of the second Sheriff, Hob. 202.

A. was taken in Execution in the time of the New Sheriff shall be charged in Escape upon a new Exe­cution. Old Sheriff, and then escaped, and afterwards in the time of the new Sheriff the Plaintiff again sued a Scire facias against A. upon the said Judgment: Upon which Execution was awarded by Default, and thereupon issued a Cap. ad sat. against A. by which he was taken, and escaped. Per Cur', The new Sheriff shall be charged; for tho' A. was in Execution, which was deter­mined by Escape in the time of the Old Sheriff, yet when new Execution was awarded against him upon his default in the Scire fac. the same shall bind the Sheriff, out of whose Custody he escaped, 1 Leon. pag. 3. Gibbert and Sir George Hart.

What thing or Act shall Excuse an Escape, or in what cases the Sheriff or Gaoler shall not be An­swerable for an Escape.

If the Sheriff Arrest a man upon a Latitat or On Retorn of Rescous on Mean Process, the Sheriff shall be excused in Action of Escape. other mean Process, and the Prisoner is Rescued from him before he be carried to Prison, and the Sheriff retorns the Rescous against the Rescousers, this shall excuse the Sheriff in Action sur case upon Escape, because he is not bound neither is it convenient for him to bring a Posse comitat. with him to serve every mean Process. But if the Sheriff bring him to the Gaol, and af [...]er he is Rescued out of Prison, and he retorns the Rescous, yet this shall not excuse the Sheriff, for he ought to keep his Gaol at his Peril. But if the Sheriff takes a man in Execution, as on a Ca­pias ad satisfaciend. and he is Rescued before he [Page 308] brings him to Prisou, tho he retorns the Res­cous, yet this shall not excuse him, for that he is to take a Posse Comitat. and the party cannot have a new Execution. Proby and Lumly.

Now let us see whether, and how far errone­ous Process shall excuse the Sheriff.

Tho the Process of the Court be Erroneous, yet the Sheriff shall not be chargable on Escape; as if first Capias be by a wrong name, and the Testatum by a right name; so if one who is in Execution by a Capias ad satisfaciend. on a Recognizance, tho the Capias is erroneously awarded, yet the Sheriff is Chargeable. Yet this is not Law, for a Ca­pias ad satisfaciend' lies on a Recognizance, as in Ognell and Pastons Case. 1 Leon. 2 Bulst. 256. Keysar and Tirrel.

So of a Capias awarded without a Fi. fac. Cro. Eliz. 576. Conyers Case. Cro Eliz. 188 Bushes Case.

So that he is not to take advantage of Er­ror Diversity. in the proceedings, otherwise it is where he can alledge a nullity in the Record; and if the Court award a Capias where it lies not to the Sheriff, by force of which he takes the party, and then suffers him to Escape, he shall be charg­ed, for he is not to dispute the Authority of the Court.

Another difference is, where the Court hath Diversity, where the Court has Jurisdicti­on of the Cause, and where not. Jurisdiction of the Cause and where not; where the Court hath Jurisdiction, and doth Misaward Process, this is but Error: But if the Court hath no Jurisdiction and doth Misaward Process, there all is void, and the Sheriff may shew this in discharge of himself: As if a Formedon be com­menced Originally in B. R. or an Appeal in the Common-Bench, all is void, and no Action of Es­cape lies against the Sheriff; as Kingston upon [Page 309] Hull is a limitted Jurisdiction, and they hold Plea of a Bond made out of their Jurisdiction, and thereupon a Capias was awarded against the Obligor, who being Arrested on it, Escapes, no Action lies against the Sheriff, and this is the difference in the Case of the Marshallsea. But this is more fully reported in Rolls Abrig. 2 Bulst. 62. Weaver and Clifford, Ognell and Parstons Case. 8. Rep. 243. Dr. Drurys's Case.

Action on the Case is brought in B. R. against the Officer in an Inferior Court upon Escape, if the Plaintiff declare that he brought an Action against I. S. in the said Inferiour Court ( as King­ston upon Hull) on an Obligation made at Haly­fax in Com' Ebor' and does not alledge this to be within the Jurisdiction of the said Inferiour Court, and upon this Judgment was given and Ex­ecution granted, and the Defendant took him in Execution and suffered him to Escape, and upon this he brings his Action. 1 Rol. Abrig. 809. Richardsan and Bernard.

This Declaration is not sufficient to charge the Declarati­on. Tho the Action be Transient, yet if brought in Inferiour Court, the cause of Action must be alledged, to arise there. Defendant, because it is not alledged, the Obli­gation was made within the Jurisdiction of the Court; for altho the Action be Transitory, yet this Inferiour Court had a Limited Jurisdiction of things arising within the Jurisdiction, and the proceedings there were coram non Judice, and utterly void, of which the Officer shall take ad­vantage in this Action for the Escape.

Upon the whole we may see that the Case. of Warren and Clifford is misreported in Yel. p. 42. where 'tis said, it was held by three Judges that the Action did not lie, because he was not a Prisoner by the course of Law, for he was in Execution upon a Capias ad satisfaciend. on a Recognizance, which lay not, but a Sci. fac. and therefore saith that Book, he being taken by Cap­ad [Page 310] satisfaciend. he is not a Prisoner by Course of Law, for the Law has not ordained any such means to Arrest him, and he being in Custody without Warrant 'its no Escape. But this is a double mistake, for a Capias ad satisfaciend. has been adjudged to lie on a Recognizance, and if it did not, yet 'its but Erroneous Process, of which the Sheriff shall not take advantage.

In Case upon Escape against the Sheriff of Lancaster for suffering one M. W. to Escape out of Execution; and shews a Recovery against him in B. R. and Cap. ad satisfaciend. and a non est Invent' retorned; and a Testatum that he concealed himself in the County of Lancaster, Erroneous Process, because the Warrant varies from the command to the Sheriff of Com. pal. Laneaster. and a Writ was awarded to the Chancellor of the County Palatine of Lancaster, that he should command the Sheriff to take the said I. M. ad sa [...]isfaciend. &c. ita quod the said Chancellor should have him, &c. and that the Chancellor commanded the Sheriff that he should take the said M. ita quod the Sheriff should have him coram Justiciariis, &c. and the Defendant being Sheriff did thereupon Arrest him, &c. Error was brought because the Writ directed by the Chancellor to the Sheriff, was not warranted by the Writ directed to him, for it varies from the command, for it ought to have been that the Sheriff should have the Body before the Chancel­lor, ita quod that he should have him before the Justices, Sed non allocat' for tho there be Error in the Process, the Sheriff shall not take any advantage thereof, but having suffered him to Escape he is responsible to the party. Cro. Jac. 288. Burton and Eyre.

So the Sheriff shall not take advantage of Er­ror in the Process, as in B. R. the Plaintiff had Judgment to recover more than was due to him. 2 Sand. p. 100. Jaques and Lockart.

To this agree Fitz. Tit. bar. pl. 253. Debt was brought against a Gaoler for Escape, who said the Sheriff did not deliver him lawfully to him: Process. discontinu­ed. But Per. Cur. he is not to meddle, whether the Sheriff delivered him lawfully to him. So 21 Ed. 4. 23. b. Action against a Gaoler for suffering one condemned to go at Large, 'its no Plea to say that the Process was discontinued before the Judgment given, for he was a stranger to it. Dier 66. 15. 4 Rep. 84. Southcotts Case.

If the Prison be broken by the Kings Enemies, Prison bro­ken by the Kings Enemies shall Ex­cuse the Sheriff, not if done by Rebels and Traitors. Escape by sudden force shall excuse the Sheriff. this shall excuse the Sheriff from Escape, for the Gaoler could not resist them, and he can have no remedy over; but if a Prison be broken by Rebels and Traitors within the Realm, so as the Prisoners Escape, this shall not excuse the Es­cape, for the Gaoler may have his remedy over.

If the Prisoners Escape by sudden Fire, this shall excuse the Sheriff, for it is the Act of God. Dier pl. 66.

Where the Escape of one shall be a discharge of the other or not, and where the other shall have Audita Querela or not, Vide Supra.

Two are bound joyntly and severally, and one is in Execution, and the Gaoler suffers him to Escape voluntarily, this cannot be pleaded by the other, for it is no discharge of the Debt, and by consequence the Action lies against the other; now where two are bound joyntly and severally, one was condemned and taken in Execution, and after the other was sued condem­ned and taken, the first Escapes, the other shall not have Audita Querela: Because it must be an Execution with satisfactio; and tho the first may have Debt on Escape against the Sheriff yet [Page 312] there ought to be satisfaction in Fact before Audita Querela lies, and perhaps the Sheriff is worth nothing. And if the Defendants were sued by one Writ and several Praecipes, altho' the Entry should be Quod unica fiat Executio, this is intended to be with Satisfaction; for he shall have both their Bodies. But if two are taken in Execution for Debt. and one Escapes, Debt lies against the Sheriff; and after the Debt recovered against the Sheriff, or against the other, the other which remains in Execution shall have Audita Querela to be relieved; but the Audita Querela, Body taken in Execution is no satisfaction for the Debt, 6 Rep. 86. Blomfield's Case, Cro. Jac. 351. Pendavis's Case, Cro. El 478. 2 Bulstr. 321.

And so is Hobart express; The Escape of one joynt or several Obligor, where both be in Execution, shall not discharge the other, Hob. p. 2. 59, 60.

And therefore the Escape of one in Execution, where two are bound in a Bond, is no Plea to the Bond; and tho' he escaped by the voluntary permission of the Sheriff, so as the Plaintiff is entituled to an Action against the Sheriff, yet that shall not deprive him of his Remedy against the other Obligor: But if he had pleaded, That the Sheriff suffered him to go at Large by the License of the Plaintiff, it might have been pleaded in Discharge, Cro. Car. 75. Whitacre and Hankinson.

G. and A. were joyntly bound to T. in a Bond of 7000l. The Obligee takes several Actions, and had two several Judgments, and sued both to Outlawry, and A. was taken upon a Cap. Cap. Utleg. Utlegat. by the Sheriff of D. who voluntarily suffered him to Escape. T. brought Debt against the Sheriff, and Recovered and received satis­faction, and proceeded to take A. but A. brought [Page 313] Audita Querela: And he failed in his Declaration, because the Satisfaction made by the Plaintiff to the Sheriff, was not Specially pleaded, ( viz.) Time and Place where it was made; for it is Issuable, and it may be made after the Audita Difference between Action of Debt and Case. Querela purchased. But if T. had recovered only Damages in Action of Case for the Escape, the Plaintiff should have had no Audita Querela; but here he recovered his Original Debt in Action of Debt; grounded upon the Escape, Mod. Rep. 170. Alford and Totnell.

The Escape of any one upon a Joynt Judg­ment Any one on Joyn [...] Execution escapes, Debt lies for the whole. and Execution, the Debt lieth for the whole; especially if they be in several Prisons, as 5 Rep. 87. Blomfield's Case: Tho' the Duty wholly survived by the Death of the party escaped before any Action brought, and tho' the Executor of the party dead is discharg­ed.

But if the Death of one before the Action brought, doth discharge the Escape. By Hales and Rainsford it doth not: By Wild and Twisden it doth, 3 Keb. 305. Lutterell and Mosedale.

Of Actions on the Case, or Debt, by the party against the Sheriff, &c. for Escape.

If a Suit be in the Admiralty for a Matter Where to b [...] ought arising super altum Mare; and upon this the Defendant is in Execution and escapes, the Plaintiff may have an Action for this Escape in B. R.

Action on the Case for Escape lies at Common Law; but no Action of Debt lay at Com­mon Law, but the party was driven to his Special Action on the Case, which Action was [Page 314] grounded on a Trespass or Tort, and not upon any Contract in Deed or Law, 1 Roll. Abr. 536. Brightwight and Taylor.

But now Action of Debt lies against the She­riff or Gaoler for an Escape upon the Statute W. 2. c. 11. & 1 R. 2. c. 12. 1 R. 2. c. 12. gave Debt against the Warden of the Fleet; and so it is in equity against the Marshal: And tho' the Sta­tute limits the Action to be brought by Writ of Debt, which is by Original; yet a Bill of Debt lies by the equity of these Statutes. And foras­much as this Statute gives remedy by Debt, it gives Damages also: And this Act doth extend to Feme Coverts, and Keepers of Gaols for escape of Prisoners in Execution, 1 Leon. 17 Cro. Jac. 658.

Now we will consider Actions for Escape, On Mean Process, Execution.

On Mean Process.

It is said, 1 Roll. Rep. 389, 440. Action on the Case lies on Escape, on Mean Process. Case lies not for Escape on Arrest in Mean Process; but upon Execution it doth.

But in 1 Rolls Abridgm. 99. If a man be arrested on Mean Process at the Suit of J. S. and he escape, J. S. shall have a Special Action against the Sheriff on this Escape, 1 Roll. Abr. 99. May and Proby.

If a man sue a Latitat, to the intent to De­clare against the Defendant after Arrest in Castod' Maresc' in Action of Debt, and the Sheriff arrests him, and suffers him to escape, an Action lies against the Sheriff shewing this [Page 315] Special Matter, and he shall recover his Da­mages, having regard to the loss of his Debt, 1 Roll. Abr. 537.

And so is the Bayliff of Newcastle's Case. Escape on Mean Process of one in Prifon for want of Bail, lies against Bayliff of a Fran­chise. One brought an Action against J. S. before the Mayor, Bayliffs and Stewards of N. where the Bayliffs are the Gaolers of the Town-Prison, and J. S. is Committed to the Bayliffs on Mean Process for want of Bail, and they let him at Large before Judgment and Execution, and after the Plaintiff recovers against him. The Plaintiff may have a Special Action against the Bayliffs for the Escape; for by it he is deprived of the speedy means to have him in Execution after the Judgment, 1 Roll. Abr. 99. The Bayliffs of New­castle's Case.

On Executions.

If the Sheriff suffers one taken by him in Execution to Escape, the party at whose Suit he was taken in Execution may have an Alias capias against the party that escaped, to take him again in Execution, or an Action on the Case against the Sheriff, Pract. Reg. 145.

If the Sheriff takes one by Capias ad satifa­ciend' Action lies, tho' the Writ be not retorned. in Debt, if he after permits him to go at Large, and Retorns not the Writ, yet Debt lies on this Escape; for there is a Record of which the party shall take advantage, tho' the Writ be not Retorned, Cro. El. p. 16. Clipton's Case.

Action on the Case, upon Escape of Escape on Cap. Utleg. one brought in Execution by force of a Cap. Utlegat', is tam pro dom' Rege quam pro seipso; and the party shall have all in Damages.

An Action on the Case, Tam pro dom' Rege quam pro seipso was brought, for that he had a Capias Utlegat' after Judgment against J. S. and delivered it to the Sheriff of D. to execute it, who seeing J. S. and being desired to execute it, would not do it, but suffered him to go at Large and afterward the said Sheriff Retorned Non est inventus. Per Cur. The Action is well brought, and the King is to have the benefit thereof as well as the party. And in his Declaration he Declara­tion. need not cite the whole Record, but begin at the Judgment quod non recuperasses; for it is but a Conveyance to the Action, and its not necessary to shew the whole Record; and it sufficeth to begin at that which is the Cause of Action, Cro. Jac. 532. Parkhurst and Powell, Cro. El. 877. Eden and Floyd, Cro. Jac. 360. Barret and Winch­comb.

Who shall have an Action of Debt or Case upon Escape, or to whom it shall be said an Escape, or not, at Election.

And this is to be considered in the Case of a Capias Utlegat', or a Capias pro fine; or where one shall be said to be in Execution without prayer of the party, and where not.

If a Cap. ad satisfac. issue upon a Judgment in On Cap. Utlegat. Action of Debt, and the Sheriff Retorn Non est inventus, and thereupon he is Outlawed; and afterwards a Capias Utlegat' issues out against him, upon which he is taken and Imprisoned, and after is permitted to go at Large; the party who recovered shall have Action of Debt upon this Escape against the Sheriff; for he was in Execution against him also, because he cannot have a new Capias ad satisfaciend'. And if he [Page 317] escape, altho' he was taken at the King's Suit, yet the party had such Interest in the Body, that Where one taken on Capias shall be in Execu­tion at the Suit of the party without Prayer. he shall have Action of Escape against the She­riff; and before the Plaintiffs Prayer to have him in Execution, he is in Execution at his election. So that if the Sheriff suffer him to go at Large before the Plaintiff hath deter­mined his election, its an Escape against the Plaintiff if he will, and an Action of Debt lies, Yelv. p. 20. 1 Roll. Abridgm. 810. 5 Rep. Garnon's Case.

A. recovers in Debt vers. D. in Banco Communi, and sues a Capias ad satisfac. and an Exigi post cap. and Outlaws the Defendant, who brought Error in B. R. and Judgment affirmed, and within the year a Cap. Utlegat. is awarded, and the Defendant taken, and the Sheriff suffers him to escape before the Retorn of the Writ; Action lies against the Sheriff. The Defendant here being taken by Cap. Utlegat. out of the Kings-Bench, shall be in Execution for the Plaintiff presently after the Arrest, if he will, altho' he was never brought into Court, nor the Court committed him in Execution for the party, 5 Rep. Garnon's Case.

As to a Capias pro fine,

Note, In all Cases when the Plaintiff may On Cap. pro fine, he shall be in Exe­cution at the Suit of the party. have a Capias ad satisfaciend. and the Defendant is taken by Capias pro fine, he shall be in Exe­cution for the Plaintiff, if he will, without Prayer: As, a Capias pro fine on Recovery in Assumpsit, and also a Cap. ad satisfac. retornable the same Term at one and the same Retorn; and as to the Capias pro fine, the Sheriff Retorns Cepi corpus; and as to the Cap. ad satisfaciend. Non est inventus. If the Sheriff in such case takes the party by Capias pro fine, now upon this [Page 318] taking he is in Execution for the party; and if the Sheriff let him go at Large, he shall answer for the Escape, 1 Leon. 51. Hudson and Leigh.

So if a man be taken by a Cap. pro fine for denying his Deed in an Action of Debt, and is suffered to go at Large, he who Recovers shall have Debt against the Sheriff; for the Capias is ad respondend' tam nobis quam parti, 7 H. 4. 4.

So in Recovery on Forger of False Deeds, if the Defendant be Imprisoned for the Fine at the Prayer of the King's Attorney; if he be suffered to go at Large before satisfaction to the Plaintiff, he may charge him for the Escape, be­cause he is in Execution to the party upon the Prisal at his election. For he ought to be in Execution at the Suit of the party, before Suit to the King; because the Suit of the party is the Original; and the Fine but accessary, because of the Suit, 7 H. 6. 6. b.

But if a man be taken by Capias pro fine for Where no Capias lies in the Original, he shall not be in Execution before Prayer of the party. the King, where no Capias lies in the Original, (as in Assize with Force, &c.) and suffered to escape before Prayer of the party to be in Exe­cution for his Damages, the party shall not have Escape against the Sheriff, because he would not be in Execution for him before Prayer.

CHAP. XXII.

Action for Escape by Executors or Administrators, where it lies, or not. Against whom Action of Escape lies. Where Execution shall be after Exe­cution on Escape; and where it shall not be a Dis­charge of Execution, but that he may be retaken again. Of laying the Action, and manner of Declaration in this Action. Where the Sheriff shall have his Action against the Prisoner that Escapes; and how to Declare.

Action of Escape by Executors or Administrators, and how to be brought.

IT is made a Question in Jones 173. and On Mea [...] Process. Latch. 67. Lemason and Dixon's Case, Whe­ther an Executor shall have an Action on the Case against the Sheriff for an Escape in the time of the Testator on Mean Process? But the better Opinion seems to be, The Executor cannot have any Remedy: The Escape being in the time of the Testator it is a Personal wrong to the party, & moritur cum persona, Latch. 67. Jones 173.

But on the other side it was said by Dodderidge, The Executor shall have this Action, and that it is within the equity of the Statute of 4 Ed. 3. for it is a Wrong, tho' upon Mean Process, and the Tort continues as to the Executor; for every thing which makes to the hindrance of the execution of a Will is a wrong to him, and the performance of Wills is much favoured in Law. And if this Action would not lye, it would be a mischievous case; for as soon as the Creditor [Page 320] dies, the Gaoler may suffer the Prisoner to escape, because none may have Action against him.

Two Judges were against two.

Whitlock's diversity was, This Personal Tort may be considered in two respects; as a Crime punishable, and that is gone; or as a Tort to the party; and then it is but reasonable that the Executor should have remedy.

But it is agreed by all, according to Fitzh. N. B. After Judgment. 121. That if it were upon Escape after Judgment, that the Action would lye by the Executor; therefore quaere as to Wade's Case 2 Keb. 616. The Executor moved for a Scire facias against the Defendant, escaped out of Execution in the time of the Testator, and that the Committitur then entred may be vacated. Per Cur. albeit the party or the Gaoler on Negligent escape, or the party on Wilful escape may take him again, yet not by a New Process or Capias after a Com­mittitur; nor can the Executors have any Re­medy.

But Stile's Rep. p. 32. Boomer and Payt, is posi­tive, That the Administrator may have Action of Debt against a Sheriff for the escape of a Prisoner, suffered in the time of the Intestate. But this was in the case of Execution.

So that the difference seems to be wh [...]re the Diversity. Escape is one Mean Process, and where it is out of Execution.

Another difference is, betwixt an Escape in Diversity between Escape in the time of the Testator, and the time of the Executor. the Life of the Testator, and an Escape in the time of the Executor upon Execution in the time of the Testator. And it is agreed for Law, That if a Prisoner escapes in the time of the Executor, the Executor may have Action of Debt.

B [...]t the Question is in Sir George Reynell and Langcastel's Case; and it is Adjudged, that it ought to be in the detinet only, for it is grounded It must be brought by Executor in the Detinet. on the former Judgment: And as an Action of Debt on the first Judgment shall be in the detinet; So here; and the difference was taken, Where the Action is grounded upon privity of Con­tract, it ought to be in the detinet. Aliter, when grounded upon a Tort.

So is the same Case, Hob. 272. by the name of Langcastel and Sidley: If it were in the debet and detinet, the Plaintiff should recover for his own use.

So it is in Stile's Rep. 32. Martin and Hendley, and 2 Roll. Rep. 132.

So Executor brings Debt upon Escape of one who was Bail in the Recognizance with, &c. to his Testator; it must be in the detinet, Lane's Rep. p. 80. Carew's Case.

Note, In Debt for Escape, broght by the Costs. Executor; if he be Nonsuit, he shall not pay Costs, 1 Roll. Rep. 63.

The Plaintiff brings Action on the Case as Executor against the Sheriff (Defendant) for Escape, and had Judgment given him per nomen of Executor. This Judgment past by Non sum Informatus. Error was brought, because the first Judgment was given for him as Administrator; and this in Action on the Escape, and the Judg­ment on it was per nomen of Executor.

Dodderidge put the Case:

The Administrator hath one in Execution for Debt, the Sheriff suffers him to escape; he brought his Action of Debt against the Sheriff for this Escape, and recovers; and after all he [Page 322] finds a Will, by which he himself was made Executor. The Recovery shall now be good, and this Money recovered against the Sheriff shall be Assets in his hands, and no Audita Que­rela in this Case lies against the Sheriff. And Crook of the same Opinion.

Houghton contra. If the first Executor dies In­testate, his Administrator shall not have an Action of Debt against the Sheriff for this Escape; no more shall the Executor here in the Principal Case have his Action against the Sheriff for the escape of him that was in Exe­cution at the suit of an Administrator. The Executor here hath no privity to sue Execution upon this Judgment; because the Scire fac' de­pends on the Satisfaction, and to this he is not privy. The Court being divided, it was Com­pounded, 3 Bulstr. 112. Slingsby and Lambert, Cro. Jac. 394. 1 Roll. Rep. 276. Godbolt 262. mesme Case.

Action on the Case lies by Commissioners of Action on the Case by Com­missioners of Bank­rupts for an Escape. Bankrupcy, for suffering one to escape who was Committed by them; because he refused to be examined, 1 Roll. Rep. 47. Barnes and Cary.

Against whom an Action for Escape lies.

If the Under-sheriff takes one in Execution, Against an Under­sheriff. and suffers him to escape; Action of Debt lies against the Sheriff himself.

But there is a Case cited in Marsh and Astrey's Case, 1 Leon. 146. The Under-sheriff suffered a Prisoner to escape, and the Action was brought against the Under-sheriff: For (saith the Book) it may be the Under-sheriff himself had not Notice of the matter, ( and I conceive, its no matter whether he had or not, he having Security [Page 323] from his Under-sheriff,) and the Writ was deli­vered to the Under-sheriff, and he took a Fee for it.

But this seems not to be Law: The Sheriff is the person in Court alone to answer all Mis­demeanors Where Action lies against the Under­sheriff, or not. of Under-sheriffs, or Bayliffs. As the Under-sheriff lets one go that is arrested upon a Latitat, and Retorns Non est inventus. No Action lies against the Under-sheriff; but the Sheriff shall not be Imprisoned nor Indicted for the act of the Under-sheriff, Latch. p. 187. Laycock's Case.

Yet quaere of the Principal Case, vid. supra sub tit. Under-sheriffs.

Cap. ad satisfaciend' is awarded to the Sheriff Action against the Bayliff of a Fran­chise, and not against the She­riff. of Berkshire to arrest J. S. who was then in the Custody of the Mayor and Burgesses of Windsor, and he awarded a Warrant to the Mayor, &c. to take him, who did so, and after let him escape. Action of Debt for this Escape lies against them, not against the Sheriff.

And the like Law of a Bayliff of a Fran­chise.

Action of Debt is maintainable against a Not against the Sheriffs or Gaolers Executors. Gaoler or Sheriff for escape out of Execution: But it doth not lye against his Executors or Ad­ministrators. Vide supra, yet with this diffe­rence, Dyer 271, 322.

Where the Sheriff is chargable in his Life­time Difference between a Tort and Levying Money. for a Personal Tort or Misfeasanze, there his Person is only chargable, & actio moritur cum persona: But where he is chargable for levying Money on a Fieri fac', and not paying it over; there, if he dies, his Executors are chargable: It's a Duty, Cro. Car. 539. Perkinson and Cully­ford.

A Prisoner taken on mean Process upon plaint Against a Serjeant in London. before the Sheriff in London, is in Custody of a Serjeant, and escapes, the Action shall be brought against the Serjeant in this Case. Siderf. p. 318.

Action upon the Case, against Defendant being Sheriff of London on mean Process, and after Issue and Trial by Nisiprius, and before the day in Banco, one of them dies; tho they are reputed one Officer, yet they are 2 distinct per­sons, and the Suit shall proceed against the other, Hard. 161. Harris versus Phillips and Briggs.

Where Execution shall be after Execution upon Escape, or where an Escape shall not be a Discharge of Execution, but that he may be taken again.

Note, If the party negligently Escape, the party and the Sheriff may take him again; but if voluntarily, the only the party may take him again, but not the Sheriff; but if the Sheriff let him go by the consent of the Plaintiff, then neither can take him, 2 Keb. 206. Alenson and Butler.

But tho the party or Gaoler on negligent es­cape, or the party on wilful escape may take him again, yet not by a new Process or Capias after a Committitur, 2 Keb. 616. Wades Case. In case of Sheriffs death.

If one in Execution on Ca. Sa. escape of his own­wrong, yet the Plaintiff cannot have other Exe­cution, Hob p. 6.

If a Man taken in Execution by a Capias be put in Prison, and after escapes, and after the Sheriff dies, a new Capias lies against him, other­wise the Plaintiff would be without Remedy. But if a Man be in Prison, and the Marshall die, [Page 525] and then the Prisoner escapes, there is no reme­dy but to take him again; for if after the death of the old Sheriff, and before another is made Sheriff a Prisoner go at large, this is no escape, for he is in Custody of the Law, and may be re­taken in Execution at any time, Hob. p. 60. 41. Ass. 15. Mod. Rep. 14. 3 Rep. Westbies Case.

On voluntary escape, the party doth not lose his Interest, but may take him again, and if the Sheriff die he may have a new Execution if he will.

So the Plaintiff Eexcutor brought a Sci. fac. on a Plea of permisit ire ad Larg. how con strued. Judgment in Debt for the Testator against the Defendant, Quare Execution. habere non debet, De­fendant pleads he was taken in Execution per Ca. Sa. upon this Judgment, and committed to. the Fl [...]et, and that the Warden permitted him ire [...]. Plaintiff Demurs, and judgment giv [...] [...] querente; and he may have new Executi­on against the Defendant, who escapes out of Prison, by 3 Justices cont' Vaughan And Alanson and Butler is full to the Point; Sir Thomas Jones p. 21. Allen and Winter.

2d Point, Whether permisit ire ad Larg. shall be implyed negligenter or voluntarie, and it seems, 'its not voluntary, because the Plea shall be most strongly taken against the pleader.

If A. be taken on Execution at the Suit of B. and voluntarily Escape by the assent of the She­riff, and after the Sheriff retakes him and keeps him in Priso [...], he shall be in Execution to B. because tho B. may bring an Action against the Sheriff on this voluntary Escape, yet this is at his Election, for the party in Execution of his own wrong shall not put B. to his Action a­gainst the Sheriff against his will, and it may be that the Sheriff is not able to make him recom­pence, 10. Car. B. Trevillian and the Lord Roberts [Page 326] Case, Siderf' p. 350 Allanson and Butler.

So it is said, tho' the Gaoler be Liable to an Action of Trespass for the retaking, yet the Pri­soner is in Execution, and the Reason given is, The Body is a Pledge, and the Execution must be effectual. 3 Keb. 453, 463. James and Pierce.

Uoluntary Escape suffered only to gain Fees ought not to be countenanced, nor is no Plea in Bar, that the party was intended to re­ [...]orn to Prison again at his day, and the Plaintiff has an Interest, which is not discharged by the Escape. But my Lord Hobart on a Tryal at Guild-Hall in the Sheriff of Essex's Case, was of another Opinion, the Case was; The Prisoner having been in Execution, was willingly let go out of Prison by the Gaoler, and then came into the Gaol again, and so remained in the Gaol till the time of another Sheriff, and then Escaped, and an Action of Debt was brought against the Sheriff, This is since de­nyed for Law. By volun­tary Escape suffered by the Gaoler the Execution gone. and he directed the Jury, that the Sheriff was not answerable to this Action, for when he was suffered by the Gaoler voluntarily to go abroad, the Execution was utterly discharged, so as he could not lawfully be taken again, nor ad­judged in Execution by Law, tho the party would yield himself to it, or the Creditor should allow it, 2 Leon. p. 169. 162.

If a Prisoner in Execution escape with the permission of the Gaoler, the Execution is utter­ly gone and extinguished, and the Plaintiff shall never resort to him that escapes, but shall hold himself to the Gaoler for his remedy. Aliter if he escape voluntary, or of his own wrong, prout supra. But the Law is now held otherwise against Ridg­ways Case, Dr. Drurys Case, and the Earl of Essex Case. But 'its otherwise in case of a Rescous, Hob. p. 202. Sheriff of Essex Case, 2 Leon. 117. 162. Phillips and Stone.

In Sci. fac. to have Execution on a Judgment Permissive Escape. in Debt, Defendant pleads that at another time, the Plaintiff had sued Execution by Capias ad satisfaciend. and the Defendant was taken in Ex­ecution. Plaintiff replies, that true it is, he sued a Capias ad satisfaciend. and the Defendant was taken thereupon, but he presently Rescued him­self and escaped. Per. Cur. the Replication is good, and it is no reason the Defendant should take ad­vantage of his own wrong; tho 'tis no good re­torn upon a Capias ad satisfaciend. that the Defen­dant Rescued himself, nor any Plea in Debt or Rescous. escape; and the Plaintiff may have as well his remedy against the party as against the Sheriff, and the party hath Liberty to begin again de novo by Action on the Judgment, or against the Sheriff, Cro. Jac. 240. Robinson and Clayton, 1. Keb. 660.

If a man upon a Capias ad satisfaciend be taken New Exe­cution upon Res­cous. in Execution, and after Rescues himself from the Sheriff and Escapes, the Plaintiff may have a new Capias against him and take him again, the first Writ not being retorned or filed, nor any Record made of the Award, and this on a Sci. fac. after the year, because he shall not take advantage of his own wrong; and so he may have Elegit or any other Writ: And so it is if the Sheriff had retorned the Writ and Rescous, the Plaintiff may have a new Capias against him. 1 Rol. Abr. 904. Mounson and Clayton, and Radford and Hopkins.

If one in Execution Escape, and the Sheriff Fresh suit. makes fresh persuit after him and takes him again, altho it be a long time after, yet he shall be said to be in Execution again, because he shall not take advantage in his own wrong. 3 Rep. Ridgways Case.

Where one is taken lawfully in Execution, and after discharged by Writ of Error, and after the Judgment is affirmed, a new Capias lies not a­gainst him, but Execution shall be awarded a­gainst his Sureties, if he will not render himself. But if the Execution is reverst, because he was never lawfully taken in Execution (as if he be taken after the year without any Sci. fac.) he may be retaken again, Lach. p. 292. Sir W. Fish and Wiseman.

Escape. Laying the Action and Declaration.

Rule, Debt upon Escape ought always to persue the first Action. Therefore, where the Plaintiff as Executor brought Debt against the Sheriff of I. on escape of E. B. against whom they recover­ed a Debt of 82l as Administrator of I. S. reci­ting all the Record in Certain: It is erroneous. For the first recovery was as Administrator of I. S. and the Debt on escape is as Executor of I. S. which cannot be, that one should die Intestate, and have an Executor, Cro. Jac. p. 394. Sir H. Slingsy vers. Lambert.

The Plaintiff declares against the Sheriff of Devon, for an Escape at Exeter, which is a City and County it self, and not part of the County of Devon, yet good after a Verdict, for it shall be intended the Defendant had the Custo­dy of his Prisoner in Exon' either by Hab. Corp. Action a­gainst one Sheriff of London, and de­clares, he [...]as in Custody of both. or on fresh persuit, Sider. 364. Hopping and Holmes.

The Plaintiff declares that the party was in Custody of both the Sheriffs of London, and the Action is brought against one of them, the Pri­soner that escaped being in Ludgate, in the [Page 329] Custody of the Defendant only, the Declaration is good, for the Prisoner was in Custody of both the Sheriffs, tho he was in the Custody of the Defendant; and it stands well enough with the Record, and the words existen. in custod. is a good Averment that he was in Custody, and the word ut prefertur do not hurt the Averment Stiles, Rep. 297. Drinkwater and Pack.

Declaration.

Rule. If the Party in his Declaration doth shew he hath no Cause of Action, in such Case if the She­riff by force of a Capias to him directed, doth Whether the Sheriff shall take advantag [...] of the in­sufficiency of the Count. take the Party in Execution, and suffer him to Escape, no Action of Debt lies against the Sheriff for this Escape. But in Dyer 67. a. 2 Bulst. 62. 9.

In Action on Escape against the Sheriff or Gaoler, they shall not take advantage of the In­sufficiency of the Count, but shall answer to the Escape: The same Law is of an Error in the Record or Discontinuance, because they are Strangers to it; no more than a Stranger shall falsifie a Recovery by matter Dilatory, Dyer 67. a.

Rule. The Declaration in Escape ought to mention the first Judgment; or, the Plaintiff ought to shew he had recovered on Judgment. And it is not sufficient to say, qd' recuperasset. The Case was, qd' cum the Plaintiff recuperasset vers. J. S. &c. prout patet per Recordum, and that upon this a Capias issued out, and J. S. was taken by the Defendant and Escaped. It is too general; for non constat by the Declaration that any Judgment was ever given against him, and then he was not well taken in Execution, 1 Sanders 38, 39. Jones and Pope. Sider. p. 307. 2 Keb. 63. Mesme [Page 330] Case, 1 Sanders 34. Careswells Case. And tho' the Sheriff be in Contempt if he let him Escape, yet no Debt ariseth unless there were a Judg­ment; and tho' it be said the Sheriff took him in Execution, and for Debt unde convict' est; yet this is but a recital of the Writ.

Declaration in Escape may be according to the Writ ( viz. that he Escaped out of the Cu­stody of the Sheriff or Bayliff,) this is in Action on the Case, Siderfin p. 332.

In Case, Declaration, That the Sheriff, (the Defendant) had arrested L. at the Suit of the Plaintiff by a Lat' sued out of the Court the 21 of January, and that by the Escape the Plaintiff had lost his Debt of 119 l. Upon not Guilty the Jury find, that the Writ was Teste 28 of Novemb. But revera sued out of Court the 21 of Jan. and that Habeas Corpus was sued by the Plaintiff re­tornable Mense Pasche, with intention to declare then against the said L. But the Defendant up­on another Writ of Habeas Corpus, without the assent or notice of the Plaintiff, sued and retorn­able Tres Pasche duxit the said L. ad respond' to the Plaintiff in Trespass ac etiam bille of 19 l. where the said L. was in Custody of the Defendant ad respond' the Plaintiff in billa de 119 l. and so the said L. was permitted to Escape. Moved in Arrest of Judgment, because the Action is founded upon an Arrest at the Suit of the Plain­tiff by virtue of another Writ than the Writ found by the Jury; and the Plaintiff might have declared otherwise ( videl') that he had sued a Lat. Teste 28 Novemb. But per Cur. there is veri­tas Legis & veritas Facti, and the Declaration is according to the verity of the fact, and by ne­cessity of Law, the Teste of the Writ ought to be in Term, and so is the course. Judgment, pro Quer', Sir Thomas Jones Rep. p. 149. Walbury and Saltonstal.

Tho' it be not shewn that the Prisoner did It is not necessary to be shew­ed that he did not ap­pear at the day. not appear at the day, for if he did not appear then the Plaintiff was at no loss, yet that is not Error in the Declaration, for tho' he did ap­pear, yet the Tort is not purged, Cro. El. 289. Appleton and Burr.

A Declaration is against a Sheriff, that he suffered his Prisoner to Escape, and had retorned Cepi Corpus & parat' habeo, whereas revera he had not the Body at the Retorn of the Writ. Quaere if this Declaration was for the false Retorn, or for the Escape, or for both,—To this Declara­tion the Defendant might have pleaded the Stat. of 23 H. 6. but he demurred generally, and so has lost the advantage of the Statute, which is a private Statute, and the Defendant has confes­sed the Escape by the Demurrer, vide supra. Sanders 154, 155. Benson and Welby.

So that if the Escape be well alledged, the Court will not countenance Error in other Non Formalities.

The Declaration was, whereas he had brought a Writ of Debt against M. W. and recovered, and shews all the matter of the Escape, &c. and then it is, (as usually in the Common Bench) unde queritur qd' cum he brought a Writ of Debt against M. W. &c. and saith not the aforesaid M. VV. and so it may be a Stranger, and there­fore not good, Cro. Jac. 188. Burton and Eyre. But upon Conference with the Prothonotaries, Course of Declara­tion C. B. it is the common course in Actions on the Case after recital of the Writ, in the unde queritur to begin de novo, and not to say praedict', &c. And Per Curiam, both courses are well enough.

And so it is, tho' there be an Error in Fact. Error in Fact not to be as­signed on the Escape. As in the Case of Jaques, Car. 2. which was,

On Non Omitt as, Capias and Escape. The Capias was of 50 l. and to answer 5 l. Alano Lockart Pro­thonotary: And the Judgment in Debt on the Escape by default is 50 l. and this was assigned for Error; for the Judgment and Capias was but of 50 l. as to the Party. But Non allocatur, for upon the whole the Judgment is right, and but an Error in Fact, which cannot be assigned on the Escape, 2 Keb. 646. 2 Sanders 98. Jaques and Keble.

In Escape against the Marshal, the Plaintiff Declared, That whereas J. S. was indebted to him by Bond, and thereupon arrested by Lati­tat, and put in Bail, and the Plaintiff obtained a Judgment, who thereupon in Discharge of his Bail did render himself to Sir John Lenthall in Execution, and afterward Sir John Lenthall (the Marshal) suffered him to Escape. To this it was excepted, that he rendered himself to the Marshal; whereas he ought to say he rendered himself to the Court, for it is the act of the Court that turns him over to the Marshalsea; and a Judge can only take and discharge the Bail. But its here, that he rendered himself to Sir John Lenthall in Court. Which is well enough, Stiles Rep. 330. Child and Sir John Lenthall.

As to Declarations upon Escape, after delivery from the old Sheriff to the new Sheriff, and the manner of declaring, I shall cite two Cases, Declara­tion as the old and new Sheriff which will much inform us in that point.

The Declaration was, That he was in Execu­tion of the old Sheriff, and delivered to the new Sheriff, and then committed to the Marshal by Habeas Corpus, and then suffered to Escape, Cro. Jac. 587. Dowdswell and Sir G. Reynel.

This exception was taken to the Declaration, It must be shewed that the old Sheriff delivered him cum caus. to the new Sheriff. because it was not shewed, that the ancient She­riffs delivered him in Execution, with the Causes of Imprisonment to the new Sheriffs; for other­wise, it is an Escape in them, and not in the Marshal, as in VVestbies Case. For it may be he was delivered per Indenturam debito modo confectam for other Causes, and this Cause was not men­tioned. And a Declaration ought to be certain to every intent; and tho' it be said virtute cujus, he was in Execution under the new Sheriffs, yet that does not help it, for it is but the con­clusion of the Premisses; and if the matter before does not shew he was in Execution, that pretextu cujus will not serve.

In Debt on Escape. The Original and Capias which was retornable Cras. Martin in Michael'—78. was set forth: And that Sydly in exit' ab Officio in December, after the Retorn delivered him over to C. and it appears not that the Pri­soner was ever in the Custody of Sydley. But by VVindham he could not else be turned over, and it is expresly said he was in Custody, and it may be no Writ was retorned by the Sheriff; and tho' in Law he cannot be in Custody till the Retorn, yet that shall be now intended; neither need it be said, that the Sheriff was continued in his Office above a year, 1 Keb. 632. Hargol and Creamer.

Of Declaring in Escape upon Outlawry, there Declaring in Escape on Out­lawry. are also two Cases which will greatly direct us:

One was Outlawed by the Plaintiff, and by Habeas corpus he was delivered to the Marshalsea, and escaped. Now the Declaration may be for the party only, and it need not be an Action on the Case tam quam, tho' here is a Contempt to the King, Brigdman's Rep. 8. Moor and Sir George Reynell.

The Plaintiff in Debt on Escape declares of a Recovery of 13, Utlawed 15. and that he was taken by Cap. Utlegat. 18 Car. 2. after the year, and doth not Declare that he was in Custody, nor that he was ever charged in Execution at the Suit of the party, by Prayer on the first Judgment, (in which Case, tho' an Action on the Case will lye, yet not Action of Debt.)

And after Verdict pro Quer', Maynard moved in Arrest of Judgment, That this taking after the Year, after the Recovery and Judgment on the Outlawry, does not make the Prisoner in Execution at the Suit of the party, without Prayer; because it may be Intended, that the party intended to have other Execution than the Body. And relied on Frost's Case 5 Rep. 89. That until election made, he is not in at the Suit of the party, Siderfin 380. Buckland and Kel­land, 2 Keb. 408. mesme Case.

But upon Cro. El. 850. Shaw and Cutter's Case, Tho' the Capias Utlegat' be after the year. yet Debt [...]ies upon Escape, without any Prayer of the party en­tred on Record. Declara­tion on Escapes in Inferiour Courts. and 706. Leighton and Garnon's Case, The Court inclined, that tho' the Capias be after the year, yet Debt lies against the Sheriff for the escape, without any Prayer of the party entred on Re­cord; and that he which is taken upon a Cap. Utlegat. is in Execution at the Suit of the party, till the party disclaim it, 5 Rep. Frost's Case.

As to Leighton, and Garnon, and Shaw and Cutter's Cases, vide supra.

As to the manner of Declaring on Escapes in Inferiour Courts, or upon Removal out of Infe­riour Courts, it need not be shewed how the Jurisdiction of the Court was, and how it was held; this being but Inducement to the Acti­on.

And so is 1 Cro. Moys and Hodges, 2 Kel. 219. Drinkwarter's Case, the Escape being the material part; and tho' its said, the party was Committed debito modo, and doth not say, prout patet per Recordum, its good enough, the Presidents being both ways.

But in Hodges's Case the difference is right. When the Jurisdicti­on ought to be set forth, and when not. When the Jurisdiction of the Court ought to be set forth, and when not. The Declaration was:

Whereas the Plaintiff in such a Court of Pye­powders, held at Gloucester secundum consue [...]ud' Civitatis illius, brought Action of Debt of 200 l. against Hodges, and thereupon he was arrested, and under Custody of the Sheriffs of Gloucester, who let him go at Large. Per Cur'. In pleading a Recovery in Inferiour Court, he ought to shew by what Authority the Court is holden, whether by Patent or Prescription: And this Court being styled a Court of Pyepowders, (which is incident to Fairs and Markets, and is for Contracts arising in them) shall not be intended to be a Court, unless it be shewed to be held by Charter or Prescription, and that the Sheriff who is to take advantage thereby ought to shew it. As Stew­ards, when they make any Certificate out of Inferiour Courts, ought to shew therein how the said Courts are holden, for they best know their own Authority. But otherwise in the Case of a Stranger, as here, where the Style of the Court is but an Inducement to his Action, Cro. Car. 58. Hodges and Moys.

So Action on Escape on Mean Process in Infe­riour Need not fet forth any Plaint in Inferior Court. Courts, by virtue whereof the Defendants as Bayliffs did duly arrest him, and they set not forth any Plaint. And per Cur. this is but Induce­ment, and cured by Appearance, the Escape being well set forth, 2 Keb. 209. Pepper and Some.

In Action on the Case for Escape, it was al­ledged Bayliff of a Fran­chise deli­vered the person arrested to the Sheriff, and saith not at what place. in the Declaration, That the Sheriff di­rected his Warrant to the Bayliff of a Franchise to arrest the party; who arrested him, and deli­vered him to the Under-sheriff in câ parte autho­rizat', &c. and shewed no place where the Bayliff delivered the Prisoner; for it may be it was out of the County. Sed non allocatur: For the shew­ing the place was but Inducement to the Action, and when he pleaded Not guilty, the Escape is the Matter material, Cro. Eliz. 289. Appleton and Burr.

Debt upon Escape was brought against the Bay­liff Its not alledged, that the Sheriff made War­rant to the Bayliff of a Liberty. of a Liberty, and it was excepted to the De­claration, that it was not alledged the Sheriff made a Warrant to the Bayliff on Execution: But only that at A. aforesaid, by virtue of the Warrant aforesaid, took the Prisoner, and saith not, within the Liberty aforesaid. Sed non allocatur.

Action on the Case on Escape brought, and Profert in Curia of the Will. the Plaintiff declares, That the party was in Ex­ecution at the Suit of his Testator; its good, without saying, profert in Curia of the Will, 1 Roll. Rep. 78.

Baron and Feme brought Escape; the Baron Escape brought by Baron and Feme. arrests the Prisoner with a Latitat in his own name sole: And now he declares, That he took out the L [...]titat eâ intentione to charge the Prisoner, upon a Bond made to the Wife dum sola fuit; and by Three Justices, its good.

Action on the Case against a Bayliff of a Liber­ty on an Escape by a Clerk of the Hanaper in Chancery; and declares, that for recovery of his Debt he prosecuted an Attachment of Privi­ledge, directed to the Sheriff of Middlesex ad re­spond' placito Trans. eâ intentione, that he should put [Page 337] in Bail for recovery of his Debt on Bond; the Sheriffs of Middlesex directed their Warrant to the Bayliffs of Westminster, and he arrested him, and suffered him to escape, Cro. Car. 329. Mynn and Hinton.

The Declaration is naught:

1. Because he does not say of what Liberty he was Bayliff, or whether he hath Execution or Retorn of Writs.

2. He alledges he had an Attachment of Pri­viledge to arrest him in Trespass, intending after his Appearance to Declare in Debt, which can­not be unless in B. R.

And there the Reason is, because when he The Rea­son of of decla­ring in Debt on Trespass in B. R. appears and puts in Bail, he is supposed to be in custodia Marescall', &c. and declares against him in Custody: But it is not so in any other Court.

Where the Sheriff shall have his Action against the Prisoner that Escapes, and how he shall Declare against him.

Upon a Voluntary Escape the Sheriff shall not have an Action on the Case against the Prisoner. Aliter upon a Negligent Escape, Mo. 597.

Sheriffs of N. bring Action on the Case, and Declare:

Whereas J. S. recovered against the Defen­dant in Debt of, &c. and a Capias ad satisfaciend▪ was a warded against him, by force whereof they directed their Warrant to three Serjeants, &c. to arrest him, who did arrest him 26 Febr. &c. and he escaped, and afterwards was not found in the same County, per quod by reason of the same Escape they were bound to answer the Debt ad dampnum, &c.

The Jury, on Not Guilty, found that he was arrested about the 26th of Febr. and to this De­claration it was excepted:

1. They alledge they made a Certain War­rant, By War­rant, and not said sub sigillo. and say not sub sigillo sigillat', and a War­rant without a Seal is insufficient. Per Cur'. It is the usual Form, and they do not say sub sigillo.

2. They say they are chargable with the Debt; but say not, that they were charged or damnified, and if they be not damnified, they have no Cause of Action: For perhaps the party will never sue them, or they may dye before suit, and then the Suit is gone.

But per Cur. Action lies on this Escape before Sheriff may have the Action before he is sued. they are sued; for the party arrested did a wrong to them by the Escape and Rescous, and they are always chargable to the other party; and if they stay till they are sued, perhaps the party that escaped may dye, or fly the Coun­try.

3. The Arrest and Rescue is supposed the Jury find the Rescue circa, &c. 26th of February, which is uncertain whether it were before or after that Day; and if it were after the Day, it will not maintain the Decla­ration, for then it cannot be a Rescue the 26th Day.

But per Cur. the Verdict is good before or after the Day, so as it was before the Suit com­menced, Cro. El. 53. Sheriffs of Norwich versus Bradshaw.

If Judgment be given in Debt against the Sheriff on Escape, he shall have an Action on the Case against the party that escapes, altho' the Gaoler Licenseth him to escape, and the Gaoler shall not plead this License, Mo. p. 404. n. 541. Bel­chamber and Savage.

Sheriffs of London brought Action upon the Case against Paine, because that he being in Execution under their Custody at Spicer's Suit, made Escape, &c. The Defendant confessed all the Matter; but further pleaded, That after the Escape, Spicer had acknowledged satisfa­ction (being after the Escape) upon Record of the Sum recovered. Demurrer.

Per Cur', The Action is maintainable, tho' the Plaintiff in the first Action had acknow­ledged satisfaction, the payment after doth not take aw [...] the Action, but mitigates the Damage only: For the act of a Third person shall not take away an Action once vested, 1 Leon. 237. n. 321. Offley and Saltington versus Paine; and Hills Case there cited.

Fitzh. N. B. 130. b. its said there, The Plaintiffs in this Action ought to shew, that they had been impleaded by him who recovered; for they cannot have this Action before they are sued Qu.

CHAP. XXIII.

Of Pleadings by the Sheriff to Actions brought for Escapes. What shall be said a sufficient Fresh­pursuit, and where upon Fresh-pursuit made he may retake the Prisoner, or not: And where the Pri­soner, upon his being retaken, shall have his Audita Querela, or not. Fresh-pursuit, how to be pleaded. Pleading the Statute of Limitations. Pleading acknowledgment of Satisfaction on Record by the Plaintiff, or accord with Satisfaction. Nultiel Record pleaded, and how. Escape by the Plaintiffs Consent. By the Sheriff, License. Traverses, Supersedeas, Protection, Priviledge pleaded. Bar by the Voluntary Escape. Venue, Issue, Evidence and Special Verdict. Of Escapes of Felons.

Of Pleadings.

AS for the Pleading to Escapes directly, the Defendant either denies the Escape, and then he pleads Non permisit ire ad Largum, or else he confesseth the Escape; but pleads that he made Fresh-pursuit, or that he escaped by License of the Plaintiff.

There are other Pleas common with other Actions, as Statutes of Limitations, Satisfaction, Nul tiel Record, &c. Nil debet.

But I shall first Treat of Pleading Fresh­pursuit: And as to the right understanding of that I shall enquire,

What shall be a sufficient fresh persuit, or where upon a fresh persuit of the Sheriff, he may retake the Prisoner or not, and where the Prisoner upon his being retaken shall have his Audita Querela or not.

Tho the Prisoner that Escapes be out of the view, yet if he be taken in recenti Executione, he shall be in Execution again; and tho he fly into another County where the Sheriff had not Pow­er, yet for as much as the escape was of his own wrong (whereof he shall not take Advantage) the Sheriff may retake him in another County, and he shall be in Execution. And fresh persuit is not that he must have him alwaies in his view, but if he makes fresh persuit, so that it doth not appear fully there was a default in the Sheriff in his persuit, tho he be a day and a night out of his view, yet he shall be said to be in Execution for the party against his will upon the retaking, as if the Prisoner escape to an House, and the Sheriff sets a Watch and takes him when he comes out.

If the Gaoler make a fresh persuit before any If the She­riff retake him on fresh per­suit before Action brought he shall be excused. Action commenced and he is retaken, the Gao­ler shall be excused, but 'its otherwise if before the Prisoner be retaken the party brings his Action, for at the time of the Action brought he had good cause of Action; but it seems by VVinch. p. 35. that retaking upon fresh suit after Action is good, but not after Issue joyned. Cro. Jac. 657. Whiting and Sr. G. Reynells Case.

Stow Attorney of C. B. was in Execution in Norfolk for 1000l. and he by Practice procured himself to be removed by Hab. Corp. before Coke Chief Justice at the Assizes in Lent, and then es­caped [Page 342] to London, and in Easter Term following the Bayliff did retake him, the Opinion of the Court was, that the fresh Suit made was good, tho he took him again at the end of the year, if inquiry was made after him, and so by con­sequence Action for false Imprisonment against the Bayliff did not lie. Mich. 8. Jac. B. C. Stones Case.

If the Plaintiff bring his Action before the Sheriff retake him, or if the Sheriff does not If the Sheriff does not make fresh per­suit. yet he may retake him. make fresh persuit, yet in both Cases the Sheriff may retake him, and keep his Body in Custody till he agree with him, or he may have Action on the Case for his Tortious escape: And where the Prisoner escapes of his own wrong, and is retaken he shall never have an Audita Querel [...] against the Sheriff, but if he escapes with the consent of the Gaoler he cannot retake him, and if he do the party shall have Audita Querela: If one in Execution escape, the Sheriff may not retake him but upon fresh persuit, but he shall Gaoler makesfresh persuit, and before he is taken the Priso­ner dies yet Action lies against the Gaoler. have Action on the Case against him, or Trespass quare prisonam fregit. 3 Rep. Ridgways Case. Poph. 41. mesme Case. Jones 145. Harvey and Reynels Case, Cro. Jac. 657. VVhitneys Case, 2 Rol. Re [...] 282, 283, mesme Case.

A Prisoner escapes, the Gaoler makes fresh persuit, and before he hath taken him the Priso­ner dies; this is the Act of God, and yet because it was once an escape, the Action of escape lies against the Gaoler. Poph. p. 186.

Upon escape, the Sheriff may not in fresh In fresh persuit Sheriff not [...]o break open a Chest. persuit enter into the House of I. D. and break the Chest of I. N. to search for the Prisoner, 2 Rol. Abrig. 564. Bennet and Gray.

If a man in Execution in the County of Devon, escapes into the County of Somerset, where he is taken in Execution at another mans Suit, and after the Sheriff of Devon, on fresh persuit finds him in Prison in Somerset-shire, it is made a Question, how he may charge the Sheriff of So­merset with the first Execution, or put the party in Execution seeing he shall not retake him. 1 Rolls Abrig. 902.

Tho Information lies against the Sheriff for Informati­on against the Sheriff for escape escape, yet it lies not on escape after taking by fresh persuit, no more though the Information be depending before the taking, so that the Offi­cers diligence appear. 2 Keb. 384. the King a­gainst Sir J. Lenthall,

Fresh persuit Pleaded.

The Plaintiff counts of an escape in London, and the Defendant Justifies the retaking in De­von; so that the escape at London is not answered, its naught upon Demurrer; but when the Defen­dant P [...]ac [...]. by his Replication denies not the fresh Suit, but by Protestation relies upon this, that he was out of the view (which is not material, for it is not the form of Pleading to say he had him in his view, &c.) it appears not to the Court that he had cause of Action, now this Bar is suffici­ent for the matter, but insufficent for the form, and there being no Demurrer, but a Replication, no advantage shall be taken of the Bar for mat­ter of form, 3 Rep. Ridgways Case, Popham p. 41. Traverse. That he died after fresh per­suit, [...]ut saith not ante [...] bille. mesme case.

Action on the Case for voluntary escape▪ De­fendant Pleads, he escaped in November by neg­ligence and Traversed not voluntarily, and that he freshly persued and took him, and that postea videlicet 27 Aug. he died, to which the Plaintiff [Page 344] Demurred, because before the escape, and espe­cially for the void Traverse. But Per. Cur. the alledging the voluntary escape is immaterial, and the Sheriff chargable without it, and he need not Traverse the voluntary escape, but be­cause he doth not say he died ante exhibitionem billae, Judgment for the Plaintiff, 3 Keb. 55. Read and Bovey.

The Plaintiff declared of an escape voluntary, the Defendant shews a negligent escape, 'its good without a Traverse. Latch p. 200. Harvey and Reynell.

In Debt on escape, Plaintiff declares that the Defendant (Sheriff of Devon) suffered one C. who was in Execution to escape in London, 18 December. Defendant Pleads that the said C. es­caped the 16 December in Com' Devon, and that he freshly persued him and retook him the 17 December, and reteyned him again in Execution abs (que) [...]c, that he is guilty alit' vel alio modo. On Defendant must an­swer to the Escape mentioned in the Declarati­on as to time, &c. Traverse alit. vel how extend. alio modo. On nil de­bet in Es­cape which may be given in Evidence. this it is Demarred; because the escape is suppo­sed to be the 18 December, and he Pleads the escape 16 December, and the retaking the 17 De­cember, and so he answers not to the escape menti­oned in the Declaration, for the Traverse aliter vel alio modo doth not answer to the Time, but to the manner of any thing alledged, and Per Cur. the Plea is ill. Cro. Eliz. 439. Ridgways Case.

On nil debet Pleaded in escape, fresh persuit may be given in Evidence; so a release or any thing that destroys the Duty. Vid. supra Tit. Evidence. 3 Keb. 308 Lutterel and Mosedell.

Now as to other Pleas, and the formality of pleading, what shall be good or not, the Cases following are of great consideration to instruct us in that useful Learning.

Debt for an escape is not within the Stat. of Statute of Limitati­ons. Limitations, tho Action on the Case is; the words of the Statute are, All Actions of Debt grounded on any Lending or Contract, without special [...], shall be brought within six years, 1 Siderf. 205, 206. 1 Sand. 38.

Now first, This Action is not founded on any Lending or Contract; here is a Duty created by the Law without Lending or Contract, 2 Inst. 388.

2. This Action is founded on a Specialty, ( viz.) on a Statute Law; for at Common Law no Debt on Escape lay against a Gaoler, &c. of one out of Execution, and the Statute of 1 R. 2. c. 12. gives the Action of Debt against the Warden of the Fleet; and this Statute by Con­struction, extends to all other Gaolers and She­riffs, 1 Sand. 37, 38. Jones and Pope.

Acknowledgment of Satisfaction on Record is Acknow­ledgment of Satis­faction on Record. a good Plea.

The Sheriff brought an Action on the Case against J. for making his escape out of Execu­tion. Defendant pleads, Confessing all the Mat­ter, and that after this Escape he at whose Suit he was condemned, had acknowledged satis­faction on Record. To which it was demurred. Per Cur. The Plea is good, because the Defendant is to be charged; for that the Plaintiffs are chargable with the Debt, and not otherwise; and the Defendant hath pleaded Satisfaction ac­knowledged on Record, which may by his means, and is not denied; for otherwise the Plaintiff might have shewed the Special Matter by Replication, Cro. Eliz. 237. Salteston and Payne.

Accord with satisfaction, is no Plea. In Scire Accord with satis­faction. fac. on Judgment in Escape, on Oyer, the Defen­dant pleads Executio non; because that after the Judgment the Defendant assigned the Obliga­tion of Security of T. the party who escaped, which the Plaintiff received and accepted. To which the Plaintiff Demurred. And per Cur. Accord with Satisfaction is not pleadable after a Judgment, 3 Keb. 255. Poole and Mosedell.

Nul tiel Record is a good Plea.

Debt on Escape against the Sheriff upon a Nul tiel Record. Capias Utlagat' after Judgment: Defendant pleads there was no such Record of the Debt and Damages. It is a good Plea on Demurrer, 1 Brownl, 51. Maddox and Young, Hob. pag. 209.

In Debt on Escape one may plead, That the Command of the Plaintiff. Plaintiff commanded him to let him out of Exe­cution, Cro. Car. 329. in Vesey's Case.

In Scire fac. on a Recognizance, as Bail in a Escape by consent of the Plain­tiff pleaded Writ of Error in the Exchequer Chamber. The Defendant pleads, That the Plaintiff sued a Capias ad satisfaciendum out of the Kings-Bench to the Sheriff of Middlesex, and he was taken in Execution thereon, and suffered to escape by the Plaintiffs consent. The Plaintiff demurs, because they do not lay a place where the Court was held, nor where the party escaped by Consent, 2 Keb. 567. Mod. Rep. 19. Prinn and Smith.

Payment of the Money to the Marshal is no Bar; but payment to the Sheriff on a Fieri fac. is good; for he is commanded to levy the Mo­ney, &c. but no such Authority is given to the Sheriff, Sir Tho. Jones p. 97. Taylor and Baker.

In Escape the Defendant pleads a Release of him who recovered, to the Prisoner, being in Execution; its holden no Plea. Nil debet in Debt on Escape, 19 H. 6. 14.

As to Traversing, and Forms of Pleading.

In Trespass and Imprisonment the Defendant That he escaped by the Sheriffe License, is good without a Traverse. Justifies by virtue of a Capias, and the Plaintiff did afterwards escape, and he being Sheriff did follow him by virtue of the said Warrant, and took him upon the Capias. The Plaintiff replied, He escaped by License of the Sheriff, and Tra­verseth the latter taking by virtue of the War­rant. Per Cur. The Traverse is idle, because the Plaintiff had sufficiently confessed and avoided; and if he escaped by the Sheriffs License, that ought to be the thing put in Issue, and not the Traverse, 1 Brownl. 197. Hatton and Hunn.

Action on the Case upon Escape was brought against a Serjeant of London. He pleads that the Sheriff commanded him to deliver his Prisoner to him; which he did, and Traversed, that he was guilty of the Escape, Aliter vel alio modo. Per Cur. The Serjeant is an Officer of the Sheriff, and the usual manner of Pleading is to plead, That the Prisoner was in custody of the Sheriff; and Sheriffs in London may make their Houses their Prisons, as well as the Counters, and the Bar was good, but the Traverse was ill, Siderfin Traverse, That he is guilty of the Escape. Vid. supr. p. 318. Husband and Cole, 2 Keb. 147. mesme Case.

This Plea is a Confession and avoidance, and the Traverse is ill. But per Cur. here is no Escape confessed; and therefore Not guilty should have Not guilty. been pleaded, and not to take a Traverse.

Debt against the Sheriffs of London upon Escape of A. The Plaintiff Declared on an Execution by force of the Recovery, and that the party was in the Prison of Ludgate, sub custod' J. S. & J. D. then Sheriffs, 1 H. 8. and that he so con­tinued sub custodia J. B. & J. G. 2 H. 8. and so continued sub custodia J. N. & J. L. 3 H. 8. and then was suffered to escape. J. N. and J. L. pleaded, That before the Escape at such a Day, Anno superiùs in Narratione specificato, the said J. D. and J. S. adtunc Vicecomites suffered him to Escape.

Per Cur. It is no Plea, because there was three years specified in the Declaration, and it shall be taken that it was the first or third of H. 8. Plea to be precise as to time. when they were out of their Office, yet it is meerly induced by the adtunc Vicecomites, which shall lead the Intendment to be in the year in which the Defendant supposeth they were She­riffs.

But per Cur. that sufficeth not, but the Plea must be alledged in Fact; and therefore the Defendants meaning, to discharge themselves by former Escape, which was not in their time, should alledge it precisely, Dyer 66. Serjeant Mi­nor's Case.

In Debt for an Escape of one in Execution. Defendant pleads Nil debet; and after Issue, and the Cause entred for Trial, the Defendant would acknowledge the Action with relicta verificatione. But per Cur. this he may not do without the assent of the Plaintiff; for many defects are aided by Verdict, Sir Tho. Jones Rep. 156. Marshall and Cooling's Case.

The Plaintiff chargeth the Defendant with an Escape, 13 Ap. 18. Jac. and the Defendant pleades Escape, 29th Feb. 16 Jac. which was a year and two days before the Escape alledged by the Plaintiff; to which the Defendant made no answer, and altho' he concluded it was the same Where the time is ma­terial the conclusion that it was the same Escape will not make it good. Escape which makes the Plea good where the time is not material, yet in the principal Case the time seems to be material; for the Defen­dant, (the Marshal) Pleads, that the Prisoner was committed to him by Habeas Corpus, and that he remained in his Custody from such a time till such a time, during all which time the Plain­tiff never prayed to have the said Prisoner in Execution, Bridgmans Rep. p. 7. Moor. vers. Sir G. Reynel.

In an Escape, The Defendant confessed that Supersedeas pleaded but the Retorn of the Wit mi­staken. H. was in his Custody by Latitat retornable Mercurij Crast. Animarum, but said that a Superse­deas came to him (which varied from it) reci­ting a Writ Retornable die Veneris Crastino Ani­marum, for which variance the Plaintiff De­murred as being not the same Action, which the Court agreed, 1 Keb. 234. Earl of Bedford against Austin.

In Action on Escape, in Debt on Judgment Protection. Defendant Pleads, That after he was arrested he was discharged by Protection shewed to the Bayliff, as Servant to the Earl of Bath. Per Cur' the Plea is naught, 1 Keb. 660. Cockman and Sy­monds.

In Action on the Case on Mean Process She­riff Pleads, That a Writ of Priviledge came to him Teste Marquess of Newcastle Retornable at Privilege of Sessions pleaded. Sessions: Which recites, that by the Law of England, persons shall be priviledged in going to and retorning from the Sessions. To which the Plaintiff Demurrs, and the Court held the [Page 350] Plea to be ill; yet the Court were in doubt upon a second motion, whether the Priviledge shall extend to such inferior Courts. Also it is ill pleaded, not shewing where the Writ issued, nor where the Sessions was, nor whether the Discharge were in Session, Siderfin p. 269. Clark and Mollinuex, 3 Keb. 845. Mesme Case.

In Action on Case for Escape and false Retorn, The advan­tage of pleading the Statute 23 H. 6. lost by De­murrer. if the Sheriff Demurs generally upon the De­claration, he loseth the advantage of Plea­ding, Stat. 23 H. 6. c. 10. vide supra. Benson and Welby.

Venire.

In Action of Escape, Venire shall not be charg­ed, nor in Debt: For these may be all over England, 1 Keb. 65. Wright and Martin, Stiles Rep. 341.

By the Marshals Priviledge, the Jury on Escape were changed out of London into Mid­dlesex, 2 Keb. 818. Crook. and Mosedale.

Hale said, he knew him after Imparlance ousted of this Plea; but here the Court would not put him to Plead it, but granted a Tryal in Middlesex, and Escape in London, being so every where, Cro. El. 625.

Venire is most proper to be from the place where the Escape was.

Action is brought against the Defendant as Sheriff for the Escape of R. in Norfolk, and falsely retorning non est inventus in B. R. the false Retorn is not the principal, but the Escape is the cause of Action; and the false Retorn which is also made in Norfolk is but Aggravation, the Party may lay it in either County, 2 Keb. 771. Russel and Sucklin.

Where the Venire and Retorn differ its not good, Hetly. 83.

Per Cur. No Cost shall be on Non-suit in this Action, by the Stat. 32 H. 8.

Of Escape being pleading in Bar.

It has been adjudged as well on Scire fac. as in Debt, that to plead he was in Execution, and contra voluntatem of the Sheriff escaped, is no Plea. No tho' it were by permission, vid. [...] Keb. 305. Ridly and Morslee, Cro. Car. 24. Ro­binson and Clapton, Vilner's Case, Allenson and But­ler, Symonds and Cottmar.

To a Scire fac' on Recognizance as Bail in Escape by consent. Error, Defendant Pleads, that the Plaintiff after Judgment sued a Capias ad satisfaciend' out of the Kings Bench, and that the Defendant was thereupon taken, and that he escaped by con­sent of the Plaintiff. Per Cur', The Plea is Ill for want of Place, it is not said where the Court was held, nor whether the Party escaped by con­sent, 2 Keb. 567. Moor. Rep. 19. Prin and Smith.

To Scire fac' on Judgment in Debt, Defen­dant Bar by vo­lutarily Escape ill as to party Plaintiff. pleads a Capias ad satisfaciend issued out of the Court of Kings Bench, and that he was taken thereupon, and on Habeas Corpus out of the Com­mon Bench, he was committed to the Custody of the Warden of the Fleet, and that the War­den suffered him voluntarily to Escape. To this it was demurred, because he concludes not aright: And per Cur', the Execution must be alledged by matter of Record, and therefore he must conclude his Plea, prout patet per Re­cordum: The difference is between Process that requires no Retorn, and the Record whereby [Page 352] he is committed is shewed. The Committitur in an Action of Escape is but inducement, but in a justification it is substance. Upon a Capias or Latitat he need not so conclude, but here is Matter of Record also, here the Matter of the Bar is not the Matter of Fact, but the having sued out Execution on Record. And Secondly, Its all one as to the Party, whether he Escape by the Sheriffs negligence or voluntarily. If the Party negligently Escape, the Party and the Sheriff may take him again, but if voluntarily, then only the Party may take him again, but not the Sheriff; but if the Sheriff let him go by con­sent of the Plaintiff, then neither can take him; and Bar by voluntary Escape is held Ill. Judg­ment pro Quer', 2 Keb. p. 187, 206. Alenson and Butler, 2 Keb. 802. Vilner and Allen.

Until of late time the Discharge of the Gaoler was a good Discharge. As in 3 Co. Ridg. ways Case, Hob. Case of the Earl of Essex, 8 Rep. Dr. Drury's Case, but now the Law is taken otherwise. Vide supra.

In Audita Querela, voluntary Escape in the Sheriff is no good surmise, but that the Sheriff may retake him again. Vide supra. 1 Rol. Ab. 902. Trevillian's Case, Hob. 202. Sheriff of Essex.

Escape. Of Issue, Evidence, Special Verdict,

In Debt for Escape on nil debet pleaded, the On nil de­bet, Fresh persuit. Defendant may give Fresh persuit in Evidence. And by Hales, at a Tryal at Bar said, he always let them give in Evidence Fresh persuit on nil de­bet. And by Wild, it is done generally, Mod. Rep. 116. 3 Keb. 305. Mosedell's Case.

In Action against a Gaoler upon Escape of a Evidence in Fresh persuit. Prisoner in Execution: If the Issue be, whether the Gaoler immediately after the Escape made Fresh suit after the Prisoner, &c. and the Evi­dence is given, that a Prisoner escaped out of Prison by the negligence of the Keeper, and is absent a day and a night, and the Keeper knows it not (having many other Prisoners un­der his care) but when he had notice of it, he immediately makes Fresh suit after him, and retook him: This is an immediate Fresh suit to Which is a Fresh persuit. maintain the Issue, for covnenient persuit is an immediate persuit in Law, 2 Rol. Ab. 681. Hin­ [...]on and Sir John Lenthal, and Elton and Sir John Lenthal, on Evidence at the Bar, where the Evi­dence was that he escaped at nine a clock at night, and the Notice and Fresh Suit on which he was retaken, was the next Morning at nine a Clock.

Issue was, whether A. was taken by a Capias at the Suit of B. and Evidence was taking by a Capias at the Suit of C. and th [...] a Delivery of a Capias at the Suit of B. to the Sheriff, its good Evidence; for tho' he were taken before, yet this is a new taking in Law as to this Execu­tion. So if the Issue be of a taking on a Capias ad satisfaciend', and Evidence be by a taking on a Capias Utlegat', or pro fine with a prayer of the Plaintiff, that he may remain for satisfaction.

Issue was, whether J. S. was taken with a Capias. Evidence was given by an alias Capias. And good, Hob. p. 54.

In Debt on Escape against the Marshal, and Evidence by alias Capias. Evidence of Fresh persuit. Nil debet pleaded. The Plaintiff said, he could prove that the Prisoner was at London three long Vacations. The Evidence was an Habeas Corpus ad Testificand' and that the Prisoner went down too long before-hand, and stayed too [Page 354] long after the Assizes were done at Wells, and that he went 60 Miles beyond Wells before he retorned again. Verdict pro Quer. for 620 l. Mod. Rep. 116. Mosedell's Case.

In Escape upon a Capias retorned, ne unques Ne unques en son gard how tried. The Prisal how tried on Cap. not Retor­ned. Imprison­ment on the Execu­tion how to be tried. How in the Case of Mayor of the Staple. Arrest in one County and Escape in another where to be tried. en son gard shall be tryed by Record: But upon a Capias not Retorned, the prisal shall be tryed per Pais, Rolls 2 Abr. 574.

The Imprisonment upon the Execution, and not for other cause in Escape shall be tried by the Record. But in Escape against the Mayor of a Staple, for suffering J. S. in Execution upon a Statute Staple to go at large, if the Defendant say he was not in Prison upon the Execution, but upon plaint there, this shall be tryed per Pais, and not by Record; because it would be unreasonable, the Defendant should certifie a Record where he himself was concer­ned.

In Escape upon Arrest in one County, and Es­cape in another County; upon not Guilty this shall be tryed, where the Escape is laid, for the Action is upon the Escape, Roll. Ab. 602.

Action on the Case against a Sheriff upon Escape in London, and the Arrest laid to be in Southampton. Per Cur. The Visne shall be where the Escape was, because that is the ground of the Action, and not where the Arrest was, 3 Cro. Richbel and Goddard.

Note, In Action on the Case for Escape or Deceipt the Court will not charge the Visne out of the County where the Plaintiff supposeth the thing to be done, Siderfin p. 87.

In Action on the Case against the Sheriff of York for an Escape, and declares that he arrest­ed Charging the Visne. the Prisoner in the said County, and after suffered him to escape at D. in Com' Nottingham. [Page 355] To which the Defendant pleads not Guilty, this Issue may be tryed by the County of Not­tingham only, without joyning the County of York; for the Action and Issue is upon the Escape and not upon the Arrest, M. 40 & 41. El. B. R. Bennion and Watson.

Debt against the Marshal for suffering T. B. in Execution at the Plaintiffs Suit to Escape. Defendant Pleads, he did not suffer him to Es­cape. And gave in Evidence, That T. B. brought Evidence on non per­ [...]isit [...]re ad Larg. Attaint to Reverse the Judgment, and upon his Prayer the Court bailed him, that he might prosecute the Suit with effect. But this Bail was not entred of Record. And the Court held it good Evidence. The Escape supposed here is for Bailing is the Act of the Court. letting him go by Bail, which is the act of the Court and not of the Marshal, and may well be given in Evidence, Cro. El. p. 5. Vast and Gandy.

By Wray, upon Execution sued after Verdict, Bail upon Attaint. altho' the Party Sues Attaint, the Court usually does not Bail him, for the Verdict is intended true till reversed, but on good Considerations they may: And tho' the Bail be not entred, yet the Plaintiff for his benefit may cause it to be entred, and then he may have a Scire fac' on the Bail, and so is not at any mischeif.

The Party being charged in Mean Process when Commit­titur to be proved. he was in Custody, the Evidence may be good without proving any Comittitur; but if he were in Execution the Comittitur upon the Roll shall be proved, Siderfin 237. the King and Povey.

In Debt sur Escape, if the Defendant Plead No Escape pleaded. Evidence no Arrest which must be proved in Evidence on Escape for Mean Process. nul Escape, he cannot plead in Evidence no Ar­rest, Tryal per Pais 174. Clayt. 34.

Verdict.

In Debt on Escape if the Plaintiff Declare of Escape against two and sound against one only. an Escape of two, and its found one only was in Execution; yet the Verdict is good, and the Plaintiff shall have Judgment, Siderfin p. 5. An­drews's Case.

In Debt on Escape, if the Plaintiff Declare of the Escape of Baron and Feme out of Execution On the Escape of Baron and Feme, the Jury find the Baron only in Execution. on Judgment for the Debt of the Wife dum sola, and the Jury find the Husband only was in Execu­tion; yet the Verdict is good, and the Plaintiff shall have Judgment. The Jury found not that the Wife was taken in Execution (being for Debt contracted before Coverture,) Siderfin p. 5. Ro­berts and Herbert. 1 Keb. 371. Mesme Case.

Though the Verdict find an Erroneous Pro­cess, Verdict finds an Erroneous Process. yet the Sheriff shall not take advantage there­of. As in Debt on Escape, and special Verdict finds an alias into another County, without a Capias in the proper County, and that I was in Execution and escaped. Judgment pro Quer. on 2 Cro. 1. Pl. 1. & Co. Dr. Druries's Case, because the Sheriff is a Stranger and shall have no ad­vantage thereof, 3 Keb. 629. Hide and Hillar.

One rescued himself and escaped, and the Verdict on Rescous before the day laid, or after. Sheriff brought Action on the Case. On not Guilty, The Jury sound he was arrested circa the 26 of Feb. and then and there rescued him­self. Per Cur' be the Rescous before or after the day supposed in the Declaration its good enough, so as it be before the Suit commenced, Cro. El. 53. Sheriff of Norwich and Bradshaw.

Consideration on Assumpsit, about delivery of Pri­soners in safe Custody, and saving harmless of Escapes.

The Sheriff having one in Custody takes As­sumpsit of J. S. to deliver the Prisoner to the Bayliff in safe Custody, this is a good As­sumpsit, and no Escape. For the Court will not intend, that the Bayliff was absent from the Pri­soner, Siderfin p. 132. Benskin and French.

In consideration the Plaintiff (who sueth as Bayliff) would permit J. S. taken in Execution to Rest in the House of N. till Friday next, if he Escape the Defendant would pay the Debt:

By Hales, The Consideration is good in Mean Process, but being in Execution its ill. But the Action must be brought by the Bayliff or nobody; but consideration to make a Special Bayliff is sufficient to save harmless. This is no Bond or Promise taken of the Prisoner, nor of any for him, therefore 'its not within the Statute, 2 Keb. 805. Feake and Carter, 1 Leon p. 132. Palmer and Smalbrook.

The Bayliff assumes to save the Sheriff harm­less of all Escapes is not good. The Declaration is, That a Ca. sa. on a Judgment was awarded against the Defendant to the Sheriff of Suff. who directed his Warrant to the Plaintiff as his Bayliff to serve it; and that the Plaintiff assumed to the Sheriff to save him harmless of all Es­capes, and that by force of the Warrant he arrested the Defendant, and the Defendant in­tending to make the Plaintiff to be charged, es­caped; for which the Plaintiff in the first Action brought an Action against J. C. the Sheriff, upon this Escape, and recovered, and J. C. brought [Page 358] this Action on the Assumpsit. It was moved in Arrest of Judgment, that there is no sufficient Cause in the Declaration to maintain an Action, for tho' the Sheriff may have Action on the Case against the Prisoner that Escapes, yet the Bayliff shall not have it. Per Cur'. For the Bayliff was not chargeable to the Sheriff by Law but by Assumpsit, and this being his voluntary Act shall be no cause to charge the Defendant, but shall only make himself chargable. But they agreed, If the Bayliff had been chargable by Law, without such Promise, Action lay for him against the Defendant, who caused him to be charged, Cro. El. 349. Allerton and Har­wood.

In Consideration he would permit him to go at Large, and of 2 s. paid he promised to pay all the Mony in which the Party was condemned in Execution. Per Cur' the Consideration is not good, being contrary to the Statute of 23 H. 6. and that a Promise and Obligation was all one, and tho' it be joyned with another Considera­tion of 2 s. yet being void, and against the Sta­tute for part, it is void in all, Cro. El. p. 199. Tetherstons's Case. Pl. Dive and Manningham.

Plaintiff declared, Whereas the Defendant was arrested at his Suit on Process, the Defen­dant in Consideration that he should be permit­ted to go at Large, promised that he would ap­pear at the day of the Retorn of the Prisoner, or would give him 10 l. and he did not appear at the day. Per Cur' Its a good Assumpsit, being made to the Party which had Authority to dis­pense with his appearance: Had it been made to the Sheriff, or to any other to his use, it had been within the equity of the Statute of 23 H. 6. Cro. El. 190. Millward and Clarke.

Of Escapes of Felons.

All Prisoners are such, either by Matter of Record, or Matter in Fact.

By Matter of Record, when one present in Court is committed to Prison by the Court. There if the Gaoler has not him ready, its an Escape without more enquiry, (unless he had reasonable excuse) and the Judges will set the Fine presently.

By Matter en fait, a Man is a Prisoner when he is arrested by Sheriff, Bayliff, Constable, &c. and Escapes, there the Jury ought to find it, and present it before the Justices, and the Justices assess the Fine.

Upon a Capias for Felony, the Sheriff Retorns Cepi Corpus, and hath not the Body at the day, and the Sheriff was amerced for the Escape at 50 l.

By some it is Felony in the Sheriff to suffer a Prisoner to Escape. vid. Stat. de frang. Prisonam. If the Gaoler suffer the Escape, its Felony in him, and forfeiture of the Office, 6 H. 7. 11. 10 H. 7, 26. 9. Rep. 98. Co. on M. Charta. Keil. 195, 196. vid. Dalt. 567.

The Statute of 4 Ed. 1. de frangentibus Prisonam mittigates the Rigor of the Common Law; for before that Statute, the breaking of the Prison was Felony in every Case, but now it is not Felony, but where the Party was committed to Prison for Felony, 2 Leon. p. 161. in Borough and Holcrofts Case.

CHAP. XXIV.

What act of the Sheriffs, Bayliffs, &c. shall amount to False Imprisonment, or not. Pleading by Sheriffs to Actions of Trespass, False Imprisonment, &c. The Rules of Pleading in such cases. Justifica­tion by Mean Process. As to the Warrant, Time, Place, Quae est eadem transgressio, what it refers to. Traverse of the Time, Place, Pleadings and Justification by Execution; by Process out of an Inferiour Court of Record, and how to be pleaded.

What acts of the Sheriffs, Bayliffs, &c. shall amount to a False Imprisonment, or not.

IF a Bayliff arrest one after the Writ is Re­torned, Arrest after the Writ Retorned. Precept from an Illegal Court. Erroneous Process. False Imprisonment lies.

A Precept to arrest from an illegal Court will not save the Officer from an Action of False Imprisonment, Hob. p. 61.

Trespass, &c. will not lye against the Sheriff, for executing Process, tho' it were erroneous, Hob. p 48. Cox and Barnsly.

One asks another if his Name be J. S. who Arrest by a wrong Name. said, Yes; on which he arrests him by a War­rant which he had to arrest J. S. yet False Impri­sonment lies, Mo. 457. Coot and Highworth.

One had a Capias ad satisfaciend' delivered Arrest after Supersedeas to the Sheriff, who made a Warrant [...]to his Bay­liff to do Execution: Afterwards a Supersedeas [Page 361] was awarded and delivered by the Sheriff, the Defendant being his Bayliff, who escaped, and the Defendant retook him and detained him in Execution: This second is False Imprisonment; for tho' the first Imprisonment was legal, he having taken him by virtue of a Warrant made before the Supersedeas awarded and delivered, he not having notice of Supersedeas was excusable. But the detainment in Prison was afterwards a Wrong. For he being the Sheriffs Servant, and by Intendment having time given him sufficient to have Notice from his Master, ought at his peril to take notice thereof, Cro. El. 918. Prince and Allington.

The Liberty of a man is so tender in the eye of the Law, that a small thing amounts to False Imprisonment. As in a Case tryed at York Assizes, one Roberts's Case.

One in Execution in the County of Lancaster, One in Execution in Com. L. desired to be carried into the County of Y and the Defendant stay'd him, on Not guilty its False Imprison­ment. desired to be brought to the County of York, to speak to his Friends; and being there endea­voured to make his escape; and the Defendant commanded to stay him: He was held a prin­cipal Imprisoner, as well as those that laid hands on him. The Defendant pleaded Not guilty. Otherwise had it been had he pleaded specially, ( viz.) That the Prisoner was brought into another County at his own desire. But the Jury honestly gave but 2d damage, Roberts's Case at York Assizes.

If a man be in the hands of the Under­sheriff in Execution for Debt, and the Debtee tells the Sheriff, that the Prisoner has satisfied him, if the Sheriff release not the Prisoner, its False Imprisonment to detain one after the Plaintiff hath commanded the Sheriff to deliver him. But this Case is more fully reported in [Page 362] Bulstr. 3. 96, 97. Withers versus Henly Under­sheriff.

A. is in Execution at the Suit of B. aftewards B. Plaintiff tells the Sheriff he had made a Release. came to the Sheriff, and told him he had made and sealed a Release of the Debt to the Plaintiff, and that therefore he should deliver him out of Exe­cution. The Sheriff doth not so, but after keeps him still in Prison. The Plaintiff brings Action of False Imprisonment. It lies.

By the Stat. 1 R. 2. c. 12. One being in Exe­cution shall not be▪ suffered to go out of Prison by Mainprise, Bail or Baston, without making gree to the parties, unless it be by Writ or other Commandment of the King; and the detaining him after this amounts in Law to a New taking. For the restraining of his Liberty where he ought to have it, is a Caption in Law. Here the Sheriff ought to take notice of the party Plaintiff, and at whose Suit he is in Custo­dy.

By Coke, Detainer after this by the space of one Hour is False Imprisonment, (a Continuance of an Inclosure is a new Nusance.) If he would have helped himself here, he ought to have set forth that he knew him not to be the Plain­tiff, who told him of the Release. 3 Bulstr. 96, 97. Withers versus Henly Under-sheriff. The Case of 20 H. 7. 19. differs from this Case, because the Debt, of the King was satisfied, 10 H. fo. 3. a. 1 Roll. 240. mesme Case, Cro. El. 379. mesme Case.

It is said in 2 Keb. 33. the party who went with the Sheriff to shew to him where the Goods were ( in Execution) the Judgment being set aside afterwards, was a Trespassor ab initio; but that the Sheriff was not suable nor chargable, 2 Keb. 33. Turner and Felgate.

It was agreed in Olliet and Bessey's Case, Where Action to be brought against him that levied a Plaint wrongfully, not against the Officer. 34. Car. 2. B. R. if one be arrested by Process out of an Inferiour Court for a Cause of Action, which does not arise within their Jurisdiction, the party Plaintiff may well maintain his Action against him that levied the Plaint, or the Officer who had executed it, Sir Tho. Jones Rep. p. 214. Olliet and Bessy.

Pleadings by the Sheriff, Bayliffs, Gaolers, &c.

I shall lay down two or three general Rules

If a Sheriff justifie by force of a Capias to him directed, he shall say he was Sheriff at the time of the arrest, as well as at the receipt of the Writ, 35 H. 6. 48, 49.

If the Bayliff justifie by force of a Warrant, Warrant. he ought to shew the place where the Warrant was made, 5 H. 7. 24. Long 5. 101. b.

In Trespass, where one justifies as an Officer De son tort demesne. to do Execution, De son tort demesne without answering to the Cause is no Plea, 19 H. 6. 7. a.

In False Imprisonment the Defendant may shew twenty Causes by way of Justification, and it is not double, 7 Ed. 4. 20. Plowd. Comment. 86. a.

Where the Sheriff justifies by Execution, he Retorn of the Writ. must plead that he retorned the Writ, secùs of a Bayliff, 1 Leon. p. 144. Parkes and Mosse.

If a Bayliff justifie by force of a Warrant, he Warrant. need not say hic in Cur' prolat'; for the Warrant doth not continue in his hands; but he retorns it to the Sheriff, 1 Roll. Rep. 327. Curtis and Dowty, & p. 221. Bateman's Case.

Tho' the Proceedings in a Court be irregular, On Irre­gular proceed­ings in a Court. Warrant. yet if the Court has power to issue out a Capias, by this Warrant the Officer may justifie in False Imprisonment, Mod. Rep. 173.

If a Bayliff justifie by reason of a Warrant, he ought to shew the place where the Warrant was made. It sufficeth if it be shewed in the Rejoyn­der, 5 H. 7. 24.

Justification by Mean Process.

The Sheriff ought to Retorn his Writ, other­wise The im­mediate Officer must shew the Process Retorned. Justification is not good: But it is not so with the Servant.

False Imprisonment was brought against the Sheriffs Bayliff; he Justifies by the Sheriffs War­rant on Latitat, who arrested the Plaintiff, and required the Defendant to be aiding to him; but pleads not, That the Writ being Retorned was executed. Yet per Cur. its good; for the—has no means to reinforce the Sheriff to make Retorn thereof, Cro. Car. 446. Girling's Case.

In Action of False Imprisonment, the Defen­dant Justified by Process to the Bayliff out of the Court of the Honour of P. and does not shew any Process was Retorned, which (as Girling's Case is) being an immediate Officer, must be shewed; contra of an Under-Officer. And altho' he need not shew forth the Letters Patents, yet it must be specially pleaded such a Court was granted, and that virtute, &c. 2 Keb. 156. Haywood and Wood.

If the Defendant in Justification of an Arrest pleads, That a Bill of Middlesex was prosecuted against the Plaintiff, by which the Sheriff made [Page 365] and directed a Warrant to arrest him; it shall Bill of Middlesex intended to be deli­vered to the Sheriff before the Arrest. be intended that the Bill was delivered to the Sheriff before the making of the Warrant, till it be specially shewed to the contrary. In this case he Justifies by Writ to the Sheriff, and Warrant to himself, 1 Sand. 299. Green and Jones.

The Causes of Demurrer were, because its not shewed the Writ was delivered to the Sheriff, nor the Warrant made before the Arrest; and also for that its not averred that the Writ was Retorned. But non allocantur, this is no essential Matter, nor Traversable: And the Plaintiff might have Replied, That the Arrest was before the delivery of the Writ, else the Court will intend it to be delivered, being said that Virtute of a Writ directed to the Sheriff and warrant the Defendant arrested; and the Writ needs not to be Retorned by a Bayliff-Errant, 2 Keb. 338. mesme Case, & p. 838. 844.

So in Scire fac. on Recovery in Action on the Case, the Defendant pleads no Capias issued out against H. delivered to the Sheriff. Plaintiff Replies a Capias issued out, and Non est inventus Retorned; but says nothing of the delivery to the Sheriff. Defendant Demurs, and Judgment pro Quer'; for the Delivery to the Sheriff shall be intended, 3 Keb. 668. Holmes and Araker, Bail for H.

The Time when a Latitat issued forth is As to the Time of the taking out the Writ actually, and the Teste of it. Traversable, and may be averred otherwise than according to the Teste, Per totam Curiam; for a Relation shall not work a Wrong, 2 Keb. 173, 198. Bolton and Johnson.

If a man be taken in the Vacation by a War­rant without a Writ, and a Latitat be procured, Teste in the Term, that Teste shall not discharge [Page 366] the Wrong done after the Teste, and before the actual taking out of the Writ; but the Plaintiff may take Issue that he prosecuted truly. But in Trespass and False Imprisonment, the Defen­dant as Sheriffs-Bayliff Justified by a Latitat, Teste 27 June, Trin. Term past.

The Plaintiff Replies, That the said Writ was really and actually prosecuted out of B. R. on the 9th of August, which was after the Arrest of the Plaintiff.

Defendant Demurs: And per Cur. this is an Estoppel, especially in case of a Bayliff, whose Warrant might be before the Arrest; and all Writs must be Teste as of the Term, and the Sheriffs not Retorning the Writ, or the not having any, shall not prejudice his Under-Bayliff.

But per Cur. a good Action will lye against the Sheriff or Bayliff of a Franchise in this Case.

But in Plunket and Green's Case, in the same Reporter:

In Trespass and False Imprisonment against the Sheriff and Bayliff, the Defendant Justified by Warrant on Writ to the Sheriff, as Long and Bolton's Case. The Plaintiff Replies, No Writ was then taken out. Defendant demurrs, and Judgment pro Quer'; for tho' the Bayliff hath Warrant and no Writ. a Warrant, yet he is liable if there be no Writ; contra, if the Writ be void and delivered, 2 Keb. 705. Plunket and Green.

And in Bennet and Filkin's Case, Trespass and False Imprisonment, the Defendant Justifies by arrest on Latitat. Plaintiff Replies, The Writ was taken out after the Arrest. Defendant de­murs. Per Cur. the ante-date of the Writ will not suffice, if the proceeding be after. And Judgment pro Quer. 3 Keb. Chancy and Rutter.

And as to Pleading, as to the Time, Richardson and Pricket's Case is to be observed. The Plaintiff supposed the Arrest and Imprisonment to be 10 Decemb. 29 Eliz. Defendant pleads by virtue of a Warrant from the Sheriff he did arrest and imprison him the 2d and 3d day of December before; absque hoc that he was guilty before or after, &c. Plaintiff Replies, He was guilty of the Trespass, &c. after the 3d day of December, prout in Narratione suâ specificatur, and Issue upon this, and well enough; tho' he saith only, he was guilty after the 3d day; but saith not, and before the Action brought. For when its said, He was guilty after the 3d day, &c. prout, &c. it is to be intended to be the 3d day, and the day of which he Counted, Cro. El. 95. Richardson and Pricket.

To all the Imprisonment, but 11 Hours, the Defendant pleads Not guilty, and to the Impri­sonment for 11 Hours he Justifies as Sheriff; for that the Plaintiff hindred him in the Execution of his Office, and said nothing to the Vi & armis, yet good, 1 Sand. 78. But this Case went further, 2 Keb. 237. the Trespass and False Im­prisonment was laid the 1st of April, the Defen­dant Justifies at another day at Warw. as Sheriff, absque hoc that he was guilty the 1st of April, or at any time before or after, while he was Sheriff, or at any other place. Per Cur. This Traverse is Traverse of the Time. sufficient, and the Plaintiff must reply and shew, if there were any other Assault or Imprison­ment. Also the Traversing the Time before and after, doth not lock up the Plaintiff from assigning another day and place, especially the thing being Local, 1 Sand. 78. 2 Keb. 237. Law and King.

Justification in False Imprisonment by a Writ of Supplicavit de bono gestu out of Chancery, and arresting him by the Sheriffs Warrant thereupon The Justification being by an act in the same Time, quae est eadem Transgress. County, and justifying all the Time in the De­claration, tho' it do not agree with it in the Day, but concludes quae est eadem Transgressio is good enough, the Day not being material; and the Replication is not good if it vary from the Day in the Declaration, Cro. Car. 228. Tyler and Wall.

The Case was Trespass, &c. ultimo die Octob. 6 Car. and detaining him in Prison for two days. Defendant justifies, because 13 Aug. 6 Car. a Writ of Supplicavit issued, and by Warrant from the Sheriff to the Defendant, he arrested the Plaintiff 21 Sept. and detained him two days, &c. quae est eadem Transgressio, &c.

In False Imprisonment in London versus W. Place, quae est eadem Transgress. Defendant justifies in Norfolk, by force of a Warrant to the Sheriff quae est eadem Transgressio, absque hoc that he is guilty in London. Plaintiff demurrs generally:

1. Because the Plea is double; for the Justifi­cation Traverse double. in Norfolk, quae est eadem Transgressio, had been sufficient without more, and then the Tra­verse makes it double. But per Cur. you shall not take advantage of this upon a General Demur­rer, General Demurrer. 1 Roll. Rep. 221. Bateman and Woodcock.

2. He Justifies by Warrant, and saith not hic Warrant, hic in Cur. prolat. in Curia prolat. Per Cur. They need not shew this in Court; for it appears to be executed, and that the Warrant is retorned to the Sheriff. And so for this last Point is 1 Roll. Rep. 327. Curti [...] and Dowty's Case.

In False Imprisonment the Defendant justifies Justifica­tion local. (as Sheriff) the taking the Plaintiff by force of a Capias directed to him at D. within his County of G. where the Plaintiff declares of an Impri­sonment in another County; there the Traverse of the County is good. For the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff, and so the Justification is Local, 3 Leon. 97. in Partridge and Pool's Case.

The Defendant justifies the Arrest quousque, Justifica­tion. Bond given to appear in B. R. absque hoc that at any time he did Arrest without reasonable Cause, until he gave such Bond. Plaintiff demurrs ge­nerally. Per Cur. The Justification is good, and the Plaintiff should have Traverst absque hoc that Traverse. he was arrested and detained till Obligation to appear in B. R. 3 Keb. 165. Dawson and Rawlin­son.

False Imprisonment. Defendant justifies by Ar­rest, De injuria sua propria to a Justi­fication by virtue of [...] Latitat and War­rant. by virtue of a Warrant of the Sheriff on a Latitat. The Plaintiff replies, De injuria sua propria absque tali causa. This is naught upon Demurrer, being Matter of Record; but Issue being taken upon it, and being in the Affirmative, its a Jeo­fail, and good after Verdict. Judgment pro Quer'. 1 Keb. 125, 164. Beesly and Walker. So Osborn and Brook's Case.

The Defendant justifies in False Imprisonment, because a Writ of Vi Laica removendâ came to the Sheriff to remove the Force. The Plea need not say, they found him resistentem in eâ parte. Vid. supra tit. Vi Laica removenda.

President,

Traverse, That the Defendant was in Custody by force of a Warrant made upon one Writ, and not by Warrant upon another, 1 Sand. 19.

Pleading by the Sheriffs Baliffs. Justification in Trespass, Trover, &c. On Execution.

Where the Sheriff justifies by Execution, he must plead, That he Retorned the Writ. Secus of a Bayliff, 1 Leon. 134. Parkes and Mosse.

In Trover of 300 Sheep 1 Dec. 36 El. Defen­dant pleads, That he was Sheriff of Com. Linc. and that J. S. recoverd against the Plaintiff 100 l. and upon that a Fieri facias, which Writ was Retornable Crastin. animar. 35 Eliz. that this was delivered to him 1 Octob. 30 El. that he on the 20th of October took the said 300 Sheep, and on 22 Oct. sold 104 Sheep for 40 l. and that the other Trover, and no Conversion confest in the Plea. 192 Sheep remained pro defectu emptorum; and at the same Day of Crastin. animar. he Retorned the said Writ, and all this Matter, the which is the same Conversion, absque hoc that he Con­verted them aliter vel alio modo. Per Cur. The Plea is insufficient;

1. Because by his Plea he doth not confess any Conversion, and then the Traverse is ill. He ought upon this Matter to have pleaded Not guilty, and given it in Evidence.

2. Because the Declaration supposeth the Tro­ver Tr [...]verse. and Conversion to be the 1st of Dec. 36 El. and he justifies the Conversion in Octob. 35 El. so he meets not with the Plaintiff in time, and [Page 371] therefore he ought to have Traversed it, and the Traverse aliter vel alio modo, to what it [...]xtends. Traverse aliter vel alio modo shall never answer to the time, but to the manner of the Conver­sion.

3. He makes not any Justification for four of the Sheep, but that he seized them; but he shews not what he did with them, Cro. El. 433. Ascue and Sanderson.

Scire fac. upon a Judgment in Debt. Defen­dant That the Sheriff levied the Debt, a good Plea in Scire fac. pleads a Fieri fac. directed to the Sheriff of L. for levying the Debt, and he by force of it took divers Sheep of the Defendants for the Debt, and yet detains them. Per Cur. Its a good Plea, altho' he do not alledge that the Writ is Retorned, and altho' the Writ is Conditional, Ita quod habeas denarios, &c. for the Plaintiff hath remedy against the Sheriff, and the Execution is [...]awful, which the Defendant cannot resist. So Rooke's Case, vid. ante.

If in False Imprisonment the Defendant justi­fies Where De injuria sua propria is not a good Plea. by a Capias of the Sheriff, and a Warrant of [...]he Sheriff to himself, there De injuria sua propria generally is not a good Plea; because a Matter of Record is parcel of the Cause: But there he [...]ught to say, De injuria sua propria, and traverse [...]he Warrant, which is Matter en fait, 8 Rep. [...]rogat's Case.

D. brought Action of Assault, Battery and Execution. [...]mprisonment of his Wife against W. and W. in [...]. B. Defendants plead a Special Justification, ( viz.) That in Nov. 2 Jac. Action of Trespass was brought by A. against Julian G. and on General Issue found for Julian G. and Judgment [...]or her; and afterwards, and before Execution, Julian G. marries the Plaintiff D. and afterwards [Page 371] Writ of Error was brought in B. R. and upon a Scire facias against the said Julian, Judgment in C. B. was Reversed; and afterwards Ca. sa. was directed to W. and W. the Sheriff to take the said Julian G. and they took her; with an Aver­ment, That the said Julian G. and the Wife of the now Plaintiff was one and the same person.

Plaintiff demurrs; because when the Warrant Trespass vers. A. and his Feme, the Feme after marries, and her first Name continued in▪ all pro­ceedings. is against Julian G. there is no such Julian G. for by her marriage with the Plaintiff she had another Name, and his Averment cannot help him, because it agrees not with his Warrant: But aliter, had the Variance been in the Name of Baptism only.

But per Cur. the Scire facias was according to the Judgment in the C. B. and well then might all the subsequent Process be so: But if the Husband had come upon the Scire facias, and shewed how that she was Covert, then the Action ought to be against both of them▪ And,

2. The parties themselves, in all the proceed­ings throughout, have all admitted that she is the same person, and had the same Name, and they shall be concluded from saying the con­trary. And tho' the Sheriff had shewed the Marriage, this was but a bare Allegation and A bare Allegation of the Sheriff▪ doth not make a thing appear Judicially. Suggestion of the Sheriff, and it appears no [...] whether it were Judicially so or not.

3. It would be dangerous for the Sheriff to Retorn a Non est inventus; for because the parties have all admitted her Name to be so in all pro­ceedings, the Sheriff shall be Estopped also, 3 H. 7. 10. and then Action on the Case would lye o [...] the false Retorn, if the Woman should be in th [...] company of the Sheriff, and the party shew her to the Sheriff, and she escape, 1 Brownl. 226▪ [Page 373] Doyley and Webb, 2 Bulstrode 80. mesme Case.

In Trespass for taking Goods. Defendant pleads a Recovery in the Court of Dorchester, in Debt against the Plaintiff, and Execution up­on this by Fieri fac: and Justifies the taking, appraising and sale (by Consent) of the Plaintiff, in part of the satisfaction of the Judgment re­covered, Quae est eadem captio. Plaintiff demurs; because the Defendant varying in the time of the taking, from the time alledged in the Declara­tion, he ought to traverse any other Taking; for the same Goods may be taken at several times, and the Quae est eadem captio is not suffi­cient; as Marshall and Dicken's Case, Sir Tho. Jones p. 146. Allen and Chamming.

But per. Cur. the Averment sufficeth, Keilw. 27. 1 Bulstr. 138. Cro. Car. 228.

Justification in Trespass, Assault and Battery, by Process out of an Inferiour Court of Record, is not good without shewing whether the Court was holden by Charter or Prescription, Sir Tho. Jones p. 165. Strode and Deering.

In Trespass of Battery, the Defendant justifies the Process to arrest one Wood, and the Plaintiff would have Rescued him, whereupon he did molliter manus imponere.

The Plaintiff Replied, De injuria sua propria, De injuria sua proprt [...] with a special Traverse. absque hoc that the Defendant had virtute of such a Warrant taken, as that by which the Defen­dant Justified. Defendant demurs.

Per Cur. The Justification is sufficient, and better by the admittance in the Replication, than if the Issue had been offered De injuria sua propria generally without such Traverse, 2 Keb. 293. Haywood and Wood.

In Trespass and Imprisonment, the Defendant That which is confessed and avoid­ed, not to be traver­sed. Justifies by a Capias, and that the Plaintiff did afterwards Escape, and he being Plaintiff did follow him by virtue of the said Warrant, taken out upon the Capias.

Plaintiff Replies, He escaped by the License of the Sheriff, and traverseth the Later taking by virtue of the Warrant.

Per Cur. The Traverse is idle▪ because the Plaintiff had sufficiently confessed and avoided; and if he escaped by the Sheriffs License, that ought to be the thing put in Issue, and not the Traverse, 1 Brownl. 197. Hatton and Hunn.

CHAP. XXV.

Of Attachments against the Sheriff; where and in what Cases it lies or not. And where against him for a thing done out of his Office. Attachment of Money in the Sheriffs hands. Of Attachments against others, and against the Goods, and the Retorn. Of Amerciaments, where and in what Cases the Sheriff is to be amerced.

Of Attachments against the Sheriff, where and in what Cases it Lies or not.

ATtachment shall not be granted against the Not for the Con­tempt of his Bayliffs For frivo­lous retorn of an Hab. Corpus. High-sheriff, for the Contempt of his Bayliff, March p. 54.

Attachment against the Sheriff for a frivo­lous Retorn of an Habeas Corpus. The Retorn was, That the Committee for poor Prisoners ordered he should not bring the Body till they had consulted with the Lord Chief Justices: And an alias Habeas Corpus under pain of 80 l. Stiles Rep. 422.

Attachmant against a Sheriff for refusing to For refu­sing to bring Mo­ney into Court. Not retorn of Habeas Corpus. For execu­ting Process against the Rule of Court. bring Money into Court.

Attachment lies by the Rules of the Kings-Bench, for not making a Retorn of Habeas Cor­pus, upon a pluries Habeas Corpus issued forth, Pr. Reg. tit. Attachment.

Attachment lies against a Bayliff, for execu­ting a Process of this Court, against a Rule of the Court having notice, Pr. Reg. ibid:

It was a doubt, whether Attachment lies Against a Sheriff when he was out of his Office for a mis­demeanor during his Office. against a Sheriff when he was out of his Office for a Misdemeanor in his Office. Capias was de­livered to the Sheriff against J. S. and the Plain­tiff shews him to the Sheriff, and he saw him, but he turned about and said I cannot see him, and after Retorns non est inventus, and then his Office determined. Dodderidg and Jones granted an Attachment against him, tho' he was out of his Office, for this Contempt during his Office, Latch p. 176. and p. 217. Dixons's Case. But they two denied an Attachment against a late Sheriff, for retorning non invenit emptores, and then his Office determins, and he detained the Goods in his hands.

Note, Attachment of Mony in the Sheriffs No attach­ment in the Sheriff hands. hand is void, for the Sheriff at the Retorn of the Writ ought to answer for the Money, 1 Leon. p. 264.

Attachment against others.

An Atatchment against a Man is a non omit­tas Attach­ment is a Non omit­tas. in it self, and the Sheriff may break his House to take him, for the Writ is for his per­son, 1 Rol. Rep. 339. Briggs's Case.

If the Party Defendant be Attached, or Di­strained by Process out of any Court of Record, or County by force of a Justicies, &c. Hun­dred Court, or any Court Baron, and make de­fault, the Goods or Issues are forfeited, and up­on the Attachment the Sheriff, or other Offi­cer may take the Goods with them. On At­tachment the Sheriffs ought to Retorn the certainty of the Goods and why, and the value. And this is the Reason, that upon the Attachment the Sheriff or other Officer ought to Retorn the certainty of the Goods and the value; and it is not sufficient to Retorn, that he hath Attached [Page 377] or Distrained the Defendant by Goods to such a value, and so upon the Distress, the Issues must be retorned in certain, because they are upon default to be forfeited, vide supra tit. original Process, 3 Inst. 228.

The Sheriff is to bring an Attachment upon the Writ of ne exeat regnum until he finds Sure­ties, 1 Rol. Rep. 313.

Where and in what Cases the Sheriff is to be Amerced.

The Sheriff is to be amerced for the faults of For the faults of his Special Bayliffs. his Special Bayliffs, for the Sheriff is the Officer to the Court and not they. But if the Sheriff Retorn quod mandavit ballivo, &c. qui respondit, &c. if the Retorn is sufficient, and a default is for not doing according to the Retorn, the Bayliff shall be amerceed and not the Sheriff. As if the Where the Bayliff shall be amerced and not the Sheriff. Sheriff Retorn quod mandavit ballivo Liberta­tis, &c. qui respondit qd' cepit J. S. according to the Writ, and he shall be here at the day, if he bring him not at the day, the Bayliff shall be amerced and not the Sheriff. But if the Cham­berlain of the County Palatin of Chester, makes an insufficient Retorn to the Court of Common Pleas, upon a Writ issued out of that Court, the Sheriff shall be amerced, because he is the Officer responsible to the Court. Now in Pal­mer and Marshes Case, 1 Brownl. 36. If the She­riff Retorn quod mandavit ballivo Libertatis qui sic respondit, and retorn an insufficient Retorn in Law, the Sheriff shall be amerced, for he might have retorned, ballivus nullum responsum dedit. Amerced for the in­sufficient Retorn of the Bayliff of a Liber­ty. If the Sheriff Retorn feci retornum istius brevis G. & L. [ ballivis Libertatis G. qui habent retornum bre­vium [Page 378] & Executionem eorundem, qui mihi re [...]onde­runt, qd' istud mandatum adeo tarde receperun [...] per manus Attornat' sequentis qd' nihil inde facere potue­runt; the Sheriff shall be amerced for this Re­torn, for he ought to have Retorned it to the Bayliff time enough for them to serve it, Trin. 39 El. B. R. Palmer and Marsh, 1 Ed. 1. 13. b.

If no Retorn be made for part by a Bayliff of a Liberty, the Sheriff shall be amerced. As in a Praecipe qd' reddat, if at the grand Cape the Sheriff Retorn quod mandavit J. Bayliff of a Franchise, &c. who retorned, that he had taken the Land into the Kings hands; and speaks no­thing that he had summoned the Tenant, as the Writ commands him, the Sheriff in this case shall be amerced, for that no Retorn is made of part, 4 H. 6. 25. b.

By the Stat. of 27. H. 8. 24. Amerciaments for insufficient Retorns of Writs, made by Baliffs of Liberties, shall be set upon the Heads of such Bayliffs, and not upon the Sheriff, nor upon the Lord of the Franchise.

If the Sheriff be amerced by the Court for the Increase of Amerci­aments. not doing a thing belonging to his Office; and yet he continues to neglect to do it contrary to the Rule of the Court, the Court may increase the Amerciaments till he do his Duty therein. But Amerciaments set upon the Sheriff upon the Amercia­ment estre­ated with a Respe­ctuat. motion of the Party, if they be not Estreated into the Exchequer, may be with a Respectuat' (that is) be respited) if the Party grieved, who caused him to be amerced will consent there­unto, otherwise not, Pract. Reg. p. 18.

If upon a Latitat the Sheriff do Retorn a Cepi Amercia­ment for not Retorn. Corpus, and the Party arrested on this Process doth not appear at the day of the Retorn, the Sheriff may be amerced by the Court; yet tho' the Sheriff be amerced, if the Party arrested do [Page 379] appear within a week after the day he ought to have appeared, the Amerciament may be taken of the Sheriff, Pract. Reg. 18.

If a Debt be levied by Fieri fac' and delivered to the Plaintiff, and the Writ is not retorned, yet the Execution and Sale is good, but the Sheriff shall be amerced for the Non-retorn of the Writ, 5 Rep. Hoes Case.

It was moved to have the Sheriff amerced for Not for retorning too small Issues. retorning too small Issues: Coke said we cannot do so, for (saith he) it doth not lie in our Coni­sance, whether they are too small or not, but you are put to your Amerciament, 1 Roll. Rep. 339. Goates's Case.

A Bishop shall be amerced for an Escape 100 l. Amercia­ments for Escape of persons convict. a Gaoler shall be amerced for a negligent Es­cape of a Person Attaint 100 l. and if one con­vict 5 l. 2 Inst. 28.

An Exigent which was delivered of Record (to the Sheriff) was imbesilled, and the Copy thereof was retorned by the Sheriff, and he was amerced for the Retorn of the Copy at 30 l. and for imbesilling the Exigent at 20 l. 5 H. 4. 5.

CHAP. XXVI.

Remedy against Sheriffs, Bayliffs, &c. for Male-fea­sance. As imbesilling an Exigent, for entring into a Corporation which had Retorna Brevium. For not delivering a Supersedeas to the new Sheriff. For concealing or substracting a Writ. For refusing sufficient Bail, and forcing to find extraordinary Bail. For taking sufficient Bail. For not bringing Money levied by Fieri fac' into Court. And Stat. of Limitations pleaded.

Remedy against Sheriffs, Bayliffs, &c.

IF the Sheriff in his Court quash an Essoyn Erro­neously, For qua­shing an Essoyn. without the consent of the Suitors; Action on the Case lies against him, for the Party cannot have his false Judgment on this, 26 Assize 45.

If a Distring as Issues to the Sheriff to Distrain the Defendant in the Action by all his Lands and Chattels, &c. and the Sheriff Retorns trop petit Retorns Trop petit Issues. Issues, (too small Issues) altho' an Averment lies by the Stat. W. 2. c. 43. Yet the Plaintiff may well have his Action on the Case against the Sheriff, because it appeareth by the words of the Statute that this is a false Retorn, and the words are qd' Distringeret, by all his Lands and Chattels, Ita qd' de exitibus eorum, &c. so that if he do not Retorn all the Issues, he does not as he is commanded. The Statute ordains that the King shall have the Issues, but restrains not any Remedy that the Plaintiff had at Common Law, 3 Car. 1. Dorothy Bennet against the Sheriff of London.

If the Sheriff imbesil an Exigent delivered to For imbe­silling an Exigent. him at my Suit, Action on the Case lies tam pro Dom' Rege quam pro meipso, 41 Assize 12.

A Knight for the County brought Action For not levying Expences in Parlia­ment. against the Sheriff, for not levying 10 l. 4 s. for his expences in attendance in Parliament, 17 Ed. 3 B. R. Rot.

The Sheriff was punished in the Star-chamber, for neglecting to Execute a Capias Utlagat' after Judgment, Hob. 264.

Action on the Case lies against a Sheriff, for For entring into a Cor­poration which had retorna brevium. entring a Corporation which had Retorna bre­vium, 1 Rol. 118, 119. The Town of Darby vers. Foxhen.

J. S. recovered a Debt against Calthrop, and procured a Writ of Execution to W. P. Sheriff of D. but before the Writ was executed, Cal­throp procured a Supersedeas to the said P. who when his time was out, delivered all the Writs to the new Sheriff, but not this Supersedeas; so that J. S. procures a new Writ of Execution to For not delivering a Supers [...] ­deas to the new Sheriff the new Sheriff, upon which 18 of Calthrops Beasts were taken. And he brings his Action against P. for not delivering over the Superse­deas. By the Prothonotaries, the Course is to take a new Writ to the new Sheriff. But the Court inclined that the Action lay; for the Writ to the old Sheriff is, quod comitat' praed' una cum bre­vibus rotulis memorandis & omnibus officium illud tangen. And an Action will lye, for not delivering some Writs to the new Sheriff, which is not retorned, as Estrepment, Mod. Rep. 222. Cal­throp and Phillips.

He at whose Suit the Party arrested Rescues himself and Escapes from a Special Bayliff or Bayliff errant, shall have Action against the She­riff only. Vid. tit. Under-sheriff, Atterton and Harwood.

Warrant on Fiere fac' is directed to the Un­der-sheriff Against un­dersheriff for conceal­ing a W [...]it. of a Liberty, and he levies the Debt but conceals the Writ; Action on the Case lies against him, M. 12 Jac. B. R. Bell and Satesby.

If the Sheriffs Deputy substracts a Writ which Against the Sheriffs Deputy for not substra­cting a Writ. Bayliff of Liberty chargable for his Servant. is to be retorned, Action lies against the She­riff. And yet the Deputy may be punished for this falsity by deceipt, 19 H. 6. 71. b.

Servant of a Baliff of a Franchise, Sworn by Deputation to serve Process but of such a Sum, and he serves Process of a greater Sum with­out Warrant, and levies the Money, and parts with it, the Bayliff shall be chargable, Het­ley p. 12.

Sir John Lenthal (his Prisoner having agreed For not discharg­ing a Pri­soner with­out paying Action Money. with his Creditors) would not discharge him, without paying to him Action-Mony, By Glyn S. J. there are two Remedies against him. Acti­on of false Imprisonment, or Indictment for Extortion. Fees must be paid and no more, Stiles Rep. 454. Welberly and Sir John Lenthall.

Vid. tit. Fees.

But Bayliff of a Liberty is not chargable for the Gaoler. Vid. supra.

As for what Remedy there is against the Sheriff for refusing sufficient Bail, the Law stands thus.

If a Sheriff or Mayor refuse sufficient Bail, For refu­sing suffi­ent Bail. against the Statute of 23 H. 6. c. 10. by which the Penalty of 40 l. is given, one Moiety to the King, and the other to the Party who will Sue for it. In this Case no Action lies by Bill in the Kings Bench against the Sheriff, &c. Be­cause the Statute of 18 Eliz. is, That no person [Page 383] shall Sue any Penal Statute but by information, or original Action and not otherwise.

But Note, It is not limited by the Statute of 23 H. 6. c. 10. how the Penalty shall be recovered, but generally that he shall forfeit 40 l. one Moie­ty to the King, and the other to him that Sues, 3 Inst. 194, 6 Rep. 17. Gregories's Case, 1 Rolls Ab. 537. Whidiston and Clerk.

Action on the Case doth not lie against a She­riff, For taking insufficient Bail. for suffering a Prisoner to go at large, up­on the taking insufficient Bail. vid. supra. pasc. 2 Jac. C. B. in the Case of the Lady Mounson against the Sheriff of Lincoln, for taking insufficient se­curity upon Stat. of 23 H. 6. It was adjudged, That the death of one of the Sheriffs did not abate the Writ, 2 Sanders. 5. Postern and Hanson, Hutton p. 120. Metcalf and Hodyson p. 77. Trevor and Mi­chelbourn, 1 Keb. 56. Stalford and Bateman.

Action on the Case lies against the Sheriff, Action of the Case against the Sheriff for not bring­ing Money into Cour [...] levied by Scire fac. Statute of Limitati­tions pleaded. for that he levied such a Sum of Money on a Fieri fac' at the Suit of the Plaintiff, and brought not the Money into the Court at the day of the Re [...]orn.

The Defendant pleaded the Statute of Li­mitations 21 Jac. Its Ill. An indebitatus Assumpsit would lye against the Sheriff in this Case, or against his Executors, and then the Statute might be pleaded. If the Fieri fac' had been retorned, the Action would have been grounded upon the Record, and its the Sheriffs fault that the Writ is not retorned: But however Per Cur', the Judg­ment in this Court is the Foundation of the Action. And so Judgment pro Quer. that is not within the Statute of Limitations, Mod. Rep. 24.

Action on the Case against a Bayliff for con­cealing a Scire fac', after he had levied the Money upon it, 1 Roll. Rep. 78.

One is Arrested for 600 l. and forced to find extraodinary Bail. Action on the Case lies.

CHAP. XXVII.

Of the Sheriffs demeanor in Assignment of Dower, and the Retorn. The Proclamations. The Sheriffs Office about Partition. His demeanor in the Writ De Ventre inspiciendo. About Retorning a Force. About a Vi Laica removenda. How the Sheriff shall demean himself in a Writ of En­quiry of Waste; and of the Retorns thereof. Of the Writ of Estrepement, and the Retorn. The Sheriffs Office in a Writ of De Excommu­nicato capiendo. Retorns of Sheriffs, as to Clerks. Retorn of a Writ of Entry. Retorn of an Assize, Quare Impedit, De Malefactoribus in parcis.

Of the Sheriffs demeanour in Assignment of Dower, and the Retorn.

THe Sheriff may not assign Dower against Common Right.

If the Sheriff assign one Mannor upon Dower recovered of three Mannors, its not good; it Mannor. ought to be a Third part of each: But he may Assign all the Meadow, Pasture, &c. Mo. 12. n. 47.—19. n. 66. 12 Ed. 4. 2. contra.

And if a Woman be dowab [...]e of a Mannor, the Sheriff may assign the Third part of the Man­nor in Common instead of Dower, without set­ting out by Metes and Bounds; so assigned in Chancery, Anc. Ent. Qu. Imp. 529. 10.

If a Woman be endowed of an Advowson, she Advowson. shall be assigned the Third part of the Ad­vowson, and not only the 'shird part of the profits, ( viz.) the Third presentation, 17 Ed. 3. 8. b.

If a Woman recover Dower of a Rectory Rectory Impropri­ate. Impropriate where there is not any Glebe, the Sheriff shall put her in possession of the Third part of the Tythes generally, and not of the Tythes of the Land, which issue out of any Third part of the Land of the Parish in certain, Mich. 9 Jac. B. per Cur.

The Writ of Drwer was de Tertia parte Recto­riae de D. and upon that the Grand Cape issued, Cape in manus nostr as tertiam partem Rectoriae, &c. and the Sheriff by Colour of this Writ took the Tythes, severed from the Nine parts, &c. Its an ill Seisure, 1 Leon. p. 92. Mitchel and Hide.

The Sheriff may assign a Rent in lieu of Rent in lieu of Dower. Dower, 20 Ass. 41. 7 H. 6. 34. So a Rent out of the same Land.

If the Sheriff assign Dower by Writ to him In Parti­tion. directed, and doth not Retorn the Writ, yet she is Lawfully seised of Dower. Aliter in a partition by Writ; for there a second Judgment ought to be given, Cro. El. Ashborough's Case.

The Retorn of the Sheriff in Assignment of Certainty of the Retorn. Dower need not have such precise Certainty, as Declarations and Indictments; therefore the Retorn was, Quod habere fecit seisinam de 13 Mes­suagiis, sive Tenement is, cum terris & pratis eisdem pertinentibus tune vel nuper in tenura, &c. its good enough; and when he saith in the end, he deli­vered [Page 386] them all by Metes and Bounds, it is suffici­ent, Cro. Jac. 621. Sir Ch. Howard's Case.

It was moved for amendment of Assignment Amend­ment of Assign­ment of Dower. of Dower, being Under-value, and on refusal of an equal division profered to him by the Dowager, with liberty to chuse which two parts he would for the Heir. Which the Court Or­dered, and Committed the Sheriff for taking of 60l. of the Lady Longvill, to execute his Writ of Execution; and Information was brought against him, 1 Keb. 743. Longvill's Case.

As to Proclamations in Dower.

Where the Sheriff Retorned, He had pro­claimed the Contents of the Writ; this was held insufficient, for he must Retorn, That he made Summons of the Land.

The Sheriff upon the Statute of 31 Eliz. if he make Proclamation at the most usual Door of the Church, tho' part of the Land lye in another Town in the same County its sufficient, tho' the words of the Statute are Parishes, or Chappels. And tho' there be no actual Summons, but only the Names of the Summoners, its good; for that is all the Form at Common Law, and the Statute alters not that, Hob. p. 133. Allen and Walker.

The Forms of Retorns; as Proclamation at the Church-door, the Retorn of a Writ of View, the Retorn of a Writ of Seisin in Dower, the Retorn of a Writ of Enquiry of Damages in Dower, vid. Dalton c. 56.

In Dower of Freehold in M. magnâ and M. parvâ, the Sheriff retorned pleg' de prosequendo J. D. J. R. and the Names of the Summoners J. D. and R. F. and after the Summons made, and by the space of 14 Days and more, before the Retorn of the said Writ, at the most usual Church-door of M. magna, where part of the Tenements lay, on the 27th of Octob. being the Lords-day immediately after Sermon in that Church, he publickly proclaimed all and singu­lar things contained in the Writ, to be proclaim­ed according to the form of the Statute in that behalf made and provided, L. P. Armig. Vic.

Per. Cur. Its sufficient to make Proclamation at Proclama­tion at any of the Churches where the Lands lye. any of the Churches where the Lands lye, and he need not do it at all: But because he said, He had caused to be proclaimed all and singular in that Writ contained, and saith not what, the Retorn was adjudged Insufficient, 1 Browl. 126. Allen and Walter.

Upon a Retorn of a Writ of Enquiry in Dower Retorn of a Writ of Enquiry in Dower. Errors were assigned:

1. The Original Writ appears not to be Re­torned according to the Statute; for the year doth not appear when it was Retorned.

2. The Proclamation made by the Sheriff, appears not to be where the Land lies.

3. The Retorn does not mention that the Proclamation was after the Summons, as it ought, Hob. Allen's Case.

4. It is not said, He did make Proclamation on the Land; but the words secundum forma [...] Statuti extend far.

Quare, For the Certiorari was not well Re­torned in B. R. Stiles Rep. p. 67. T [...]yn and Thyn.

Note, No Error can be Assigned on the She­riffs act in giving the Seisin, and retorning thereof, except it is where Damages are to be Enquired; for if any of them be ill, then the recovery of the Damages being entire, its ill for all, Cro. Jac. 621. Sir Ch. Howard's Case.

If Summons be made in some part of the Summons made in some parts of the Land within the Vill, is good. Land within the Vill, its good; neither is it necessary to make the Proclamation where the Summons is, Stiles Rep. 91. Thyn.

Presidents.

Summons, Retorn of the Writ of Seisin, and Execution upon it in Dower, 2 Sand. 45, 92. Hes­keth and Lee.

On Habere fac' seisinam, in a Writ of Dower of the Third part, the Sheriff Retorned, That he offered to the Demandants the Seisin of the Third part of the Tenements aforesaid by Metes and Bounds in certain, according to the Tenor of the Writ, and they refused to accept them of him. Per Cur. The Entry of the Demandants is now lawful; and the Court refused to award Habere fac' seisinam de novo, as a thing never known, Dyer 278.

A. brought Dower against the Son, to be endowed of Lands, of which her Husband (the Father of the Defendant) died seised. A Writ issued forth to Enquire of the Damages, and he made his Warrant to J. S. to take the Inquest. It was the Opinion of the Justices, That he can­not in this case make a Deputy, because it was a Judicial act, and he must do it in person, Noy 21. Randal's Case.

Sheriffs demeanour in the Writ De Ventre Inspiciendo.

Writ was directed to the Sheriff, That he should cause D. &c. to be viewed by 12 Knights, and searched by 12 Women in the presence of the 12 Knights; & ad tractandum per ubera & ad ventrem inspiciend', whether she were with Child or not, and to Certifie the same into the Common-Bench; and if she were with Child, to Certifie how long time in their Judgments, & quando sit paritura: The Sheriff Retorned, That she was Twenty weeks gone with Child, and that within Twenty weeks fuit paritura.

Whereupon another Writ issued out of the Common-Bench, commanding the Sheriff safely to keep her in such an House, and that the Doors should be well guarded; and that every day he would cause her to be viewed by some of the Women named in the Writ (wherein they were named;) and that when she should be Delivered, some of them should be with her to view her Birth, whether it be Male or Female.

Upon this the Sheriff Retorned, He had caused her to be kept, &c. and that such a day she was Delivered of a Daughter, Cro. El. 566. Willoughby's Case.

But in Theaker's Case, the Woman to be In­spected was a Feme Covert, (to a second Husband) and she was with Child by the first; they took not the same course, but left her with her Hus­band, he entring into Recognizance, that she should not remove from the House wherein they inhabited, and that one or two of the VVomen (Retorned by the Sheriff) should see her every [Page 390] day, and that two or three of them should be present at her Travail, Cro. Jac. 685, 686. Theaker's Case.

The Sheriffs Office about Partition, and how he is to demean himself therein.

At the time of the Partition made, the High­sheriff He must be upon the Land in person. must be upon the Land in person: And if Exception be taken at the Bar before the Writ be retorned and filed, a New Writ shall be awarded; but if the Sheriff in such case Re­torneth, That he was there in proper person, No Aver­ment against the Retorn fil [...]d. and this Retorn be received and the Writ filed, the party cannot Aver against the Retorn, nor shall have Error, Cro. El. 9. Clay's Case.

In a Writ of Partition, if Judgment be given quod partitio fiat, and upon this a VVrit is directed to the Sheriff, to make partition; before that this is Executed and Retorned no VVrit of Error lies upon the first Judgment, because before the last Whe [...] Writ of Error lies upon P [...]r­tition, or not. Judgment (which ought to be, Qd' partitio praed' foret forma & stabilis in perpetuum) the Plaintiff may be Nonsuited; or he may upon the Sheriffs Retorn suggest to the Court, That the Partition is not equal, and also have a New Partition, 1 Rolls Abridgm. 750. The Lord Berkley and the Countess of Warwick.

The Form of the Retorn of a VVrit of Par­tition, vide Dalt. c. 68.

Sheriffs Office about removing a Force.

The party grieved may have a Writ supon the Statute of Northampton, 2 Ed. 3. cap. 3. directed to the Sheriff, to remove the Force; and upon this the Sheriff may imprison and justifie in False Imprisonment, as was Levett and Farrar's Case; and so may the Under-sheriff, as that Case was.

In False Imprisonment against the Sheriff, the Defendant Justifies, for that a Writ upon the Statute of Northampton was awarded 30 July 32 Eliz. to the Sheriff and Justices of the Peace, to remove a Force; and that he being Under­sheriff, by the Commandment of the Sheriff went to the place and found the Force; and because he was not able to remove it, he made Proclamation, That every one should depart, and leave their Weapons, &c. and afterwards he enquired of the Force; and it being found that the Plaintiff was one of them, he arrested him, and imprisoned him, Cro. Eliz. 294. Levett and Farrar.

Per Cur. The Plea is good. And these Points Plea. were Adjudged:

1. When the Writ is directed to the Sheriff by the name of his Office, and not by a parti­cular Name, nor doth expresly Command him to do it in person, the Under-sheriff may do it; Done by the Under­sheriff. for its a Writ grounded on the Statute, and not a Commission, for then it had been other­wise.

2. He may Arrest and Imprison at another time upon the Enquiry, tho' the Force were removed before his coming; and he may En­quire who did it.

3. It shall be intended he continued Under­sheriff, when in the same Plea it is alledged he was Under-sheriff, and the contrary is not shewed, 2 Roll. Rep. 178.

If when the Sheriff comes to remove a Force, if then one hide himself in the Corner of the House, to the intent, &c. this is Force.

The Sheriffs Office in a Vi Laica removenda.

In False Imprisonment the Defendant Justifies, Justifies in False Imprison­ment. because a Writ De vi Laica removendâ came to the Sheriff, to remove the Force; and that the Sheriff came to the House, and the Defendant in Assistance of him, &c. and that there the Plaintiff in domibus praedict' ad pacem dom' Regis distur­band', &c. & eos residentes invenerit.

Plaintiff demurs,

1. The Writ is, Si aliquos in ea parte resistentes invene [...]itis, and it is not here pleaded, That he found him resisting in e [...] parte, i. e. to keep possession. But per Cur. the words in e [...] parte ought to be necessarily intended. For when he saith, He came to the House to remove the Force, and the Plaintiff resisted him, then sequitur that he resisted him in removing the Force.

2. The Writ is, aliquos, and the Defendant had shewed Resistance by one only. But per Cur. aliquos includes aliquem.

3. He doth not aver, that it was vis Laica & armata potestas. But per Cur. it appears there was Force, and the very Resistance was a Force, 2 Roll. Rep. 177. Parson Clossey's Case.

Upon a Vi Laica removenda, if the Sheriff Retorn Non inveni vim Laicam nec armatam pote­statem, the Lessee shall have Restitution in B. R. Restitu­ [...]ion. [Page 393] upon Affidavit that he was kept out with Force.

Upon this Writ the Sheriff ought not to re­move the Incumbent, who is in Possession of the Church, be it by right or wrong, for the She­riff is only to remove the force, and is to suf­fer the Incumbent to enjoy his Possession, More 462. Roberts and Agmondsham.

How Sheriff is to Demean himself in Procla­mations.

In real Action. Vid' Dower.

As to Acts of Parliament in former times.

Proclamations ought to be with Writ to the Sheriff to Proclaim, 2 Rolls Rep. 172.

Yet, if a Statute be not proclaimed, the Of­fences against it are punishable, Dr. and Stud. 146. b.

How the Sheriff shall Demean himself in a Writ of Inquiry of Wast. And of the Sheriffs Retorn thereupon. And of the Writ of Estprement.

In an Action of Wast upon Issue joyned, a Jury is Summoned to try the Cause, and in the interim to view the place wasted, and the She­riff is to retorn the view. As to the President, vid. 2 Sanders 254. Grene and Cole.

The Sheriff must go in person to the place The man­ner of the view. wasted, by Stat. W. 2. c. 14. accedat ad Locum va­statum, together with the Jurors, 2 Inst. 390.

Six Juors at the least ought to have the view. And the Jury may view the place Wasted when the Officer is not present; and the Court up­on the Tryal ought to examin, if the Jurors had [Page 394] the view or not. But tho' the Jury ought to have the view, yet it is not necessary for the Not neces­sary to retorn the view. Officer to Retorn it, 2 Sanders 254, 255. Grene and Cole.

In Action of Wast assigned in a Wood, the Jury viewed the Wood only without entring in­to it: And it was held the same was sufficient. It would be too tedious for a Jury to view every stub of a Tree that had been Felled. Yet, if Wast be in several corners of a Wood, then the Jury is to have the view of every Corner; aliter where Wast is assigned in the whole Wood. And if Wast be assigned in every Room of an House, the view of the House generally is suf­ficient. And by Dyer, if Wast be assigned in several places, and of some of them the Jury had not the view, of that they may find no Wast done, 1 Leon. 276.

If an Issue ariseth in a Foreign County, the Jury exa­mined of the view. Jury shall not be examined of the view; and if the Jurors be not examined of the view when they should be examined, its Error.

Retorn of the Writ of Enquiry in Wast.

VIirtute brevis Dom. Regis mihi direct' Ego A. B. Armig' Vic' Comitat' praed' (tali die & anno) in propria persona mea accessi ad Locum va­statum in dicto brevi nominat' Et apud S. (the Vill wherein the place lies) feci Inquisitionem, &c. prout istud breve in se exigit & requirit.

Resid' Executionis istius brevis patet in quadam Inquisitione huic brevi annex'.

Inquisitio Indentata capt' apud G. in Com', &c. (tali die & anno) Coram A. B. Vic' Comit' praed' Virtute cujusdam brevis Domini Regis ei inde di­rect' & huic Inquisitioni consut' per Sacramentum A [Page 395] B. &c. (ad numerum 12) qui dicunt super Sacra­mentum suum qd' J. R. in brevi praed' nominat' fecit vastum venditionem & destructionem in omnibus in eod' brevi specificat', viz. permittend' duas cameras pretis 31. & unum stabulum pretii 20 s. esse disco­opertum pro defectis reparationum earundem domorum per qd' grossum marem' eorundem Dom' per tempest' pluviales super illas descendentes putred' devenit. Et dicunt super Sacramentum suum qd' praed. J. R. aliud neque plus vastum venditionem seu destructionem fecit in domibus praed' In cujus rei Testimonium, &c.

Of the Enquiry of Wast.

This Enquiry of Wast differs from other How differ from other Writs of Enquiry. Writs of Enquiry, which are but meer Inquests of Office. But here its a Verdict and in nature of a Verdict, and a Writ of Attaint lies: There­fore, where upon a Writ of Enquiry of Wast, 13 Jurors were retorned, where there ought to be but 12, its Error. But in other Writs of En­quiry, it is usual to have more than 12, at the Sheriffs pleasure, there must not be under 12 tho' it be but an Enquest of Office, for it is taken sans mise des parties, id est, without Issue joyned. In a Writ of Enquiry of Wast upon Demurrer or nihil dicit, the Sheriff may enquire of it at ano­ther place than where the Wast was done, Cro. Car. 414. King and Frith. 2 Inst. 390. Cro. El. 290. Warriford and Haddock.

Now as to the Juries finding Damages the Law is, That if Wast be assigned in three Houses and two Gardens, &c. and upon the Writ of Enquiry, Wast was found in the Houses and Gardens, and entire Damages given, its well, for it is the usual course to find entire Dama­ges, Damages entire. and not several for every of them, Cro. [Page 396] Car. 414. King and Fitch. Lib. Intr. 620. 8 Rep. 61. But where the Writ of Wast and Count is in domibus boscis & Gardinis, and upon the Writ of Enquiry the Wast is found in domibus & Gardi­nis, and nothing in boscis, there the Plaintiff shall be in Misericordia; because he counts for Wast, in places where no Wast was committed in one of them. But where Wast was assigned in cut­ting down twenty Trees, and the Wast is found in cutting down two Trees, aliter.

If the Jury find Damages only to 8 s. the Plaintiff ought to have Judgment, for it ought to be above 40 s. Winch Rep. 5. Sir G. Topping and King.

If Wast be committed in two Villages, and Where ex­cuted. the Sheriff hath executed his Office ill in one Village, and well in another, all shall be en­quired of denovo, because the whole Inquisition was but one Inquest at one time: If VVast be assigned in divers Towns, the Sheriff and Jury must view all the places wasted in every Town, but he may enquire thereof in any one of the Towns, 2 Inst. 390.

Note, Action of VVast lies not in antient Action of Wast lies in Anci­ent Demsne and why. Demesne, because upon default at the grand Di­stress, there cannot be a VVrit to the Sheriff, to enquire of the VVast as the Statute appoints. So 2 Inst. 386. That the Court fails of the Inci­dents to an Action of VVast, to award a VVrit to the Sheriff to enquire of the VVast, 2 Sanders 254 Grenes's Case. 4 Rep. Fulwoods's Case.

What Retorn shall be good, or not.

A VVrit to the Sheriff to enquire of VVast, This Writ is a non omitt [...]as. who Returns mandavi Ballivo meo Libertatis, &c. qui nullum dedit responsum, its an ill Retorn; and the Sheriff was amerced, and a sicut alias awarded; because in the executing this VVrit he is both Officer and Judge, which power can­not be committed to a Bayliff of a Liberty, and this VVrit is a non omittas in it self, and he hath power to retorn into the Franchise. But if after Appear­ance. the Party appears its good, 2 Brownl. Rep. 240. Trin. 11. H. 7. f. 42. F. H. tit. retorn de Vic. 53. 11 H. 4. 21.

The place wasted, and treble value is to be Wasts to be recover­ed, and how. recovered; now if VVast be made sparsim in a Close or VVood, the treble value shall be levied by Fieri fac' or by Elegit, and not by Capias, because Capias lies not upon the Original, 1 Brownl. 240.

The Sheriff makes a Precept to a Bayliff to Summon a Jury, who retorned a Pannel which was parcel of the Record; and the Sheriff took the Inquest of some not retorned. It was the better Opinion, that the Retorn was good; tho' some said the Sheriff may vary from the Retorn of the Bayliff, as he is one that makes the Array and is Judg also, 8 Rep. 157. Ed. Althams's Case.

Estrepment.

The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points. Where lies.

1. VVhen a Man having an Action depending (as a Formedon, VVrit of Right, &c.) sues to in­hibit, the Tenant for making VVast during the the Suit, and this is either Original, and may be sued out of Chancery, or Judicial, granted out of the Court where the Plea dependeth, 2 Inst. 328, 329.

2. VVhen the Demand is to recover Seisin of the Land in Question, and before Execution sued by Habere fac' Possessionem, for fear VVast be made before her Possession, he Sues this VVrit. And a Man can recover Damages, for no more than is contained in his Count.

There is likewise, when fear is that Wast will be done to prevent it, a Prohibition directed to the Sheriff, not to permit Wast to be done. And the Form, vid. 2 Inst. 299.

The Sheriff may resist the committing of Wast, and may Imprison if he cannot other­wise hinder it, 3 Bulst. 199. And he may take the Posse Comitatus to hinder it. Posse comi­tatus.

In Wast Estrepment was awarded, and upon Affidavit that the Writ of Estrepment was deli­vered to the Sheriff, and that he gave notice to the Party, and yet he continues to make Wast; Attachment was awarded, 1 Brownl. 168. Attach­ment.

If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast; this is no Contempt, and Contempt. the Court will not commit them, because it was [Page 399] not immediately to them, as it might have been, Hob. 85. Earl of Cumberland's Case.

Note, If the Sheriff be Plaintiff in the Action of Wast, the Writ of Estrepment shall Issue to the Coroners.

But this Writ of Estrepment is rarely used, and in such cases, Injunctions out of Chancery are frequently granted.

It seems Estrepment lies not in a Writ of Error, of a Judgment in Partition, Siderfin 367.

The Sheriffs Office in the Writ de Excommunicato Capiendo.

The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn, but shall only Retorn the Writ thither with Declaration briefly, in what manner he hath served and exe­cuted the same, 5 El. c. 23.

If the Sheriff shall Retorn non est Inventus, then a Capias shall be awarded with Proclmation therein, commanding the Sheriff in the County Court, or at the Assizes or Quarter Sessions, to make open Proclamation ten days before the Retorn at least, that the Party yeild his Body to Prison in six days. And after the six days the Sheriff, &c. shall make Retorn what he has done thereupon, &c. (the Offender to forfeit 1 ol. for such default) and so a Capias shall go in­finitè with like Proclamation: And a forfeiture of 20 l. for every other default to be Estreated presently, Sat. 5 El. c. 23.

If the Offender yield his Body, the Sheriff shall presently commit him to Prison without Bail.

If the Sheriff make an untrue Retorn, that the Party has not yielded his Body on any Pro­clamation made, where indeed he has yield­ed, &c. he shall forfeit to the party grieved 40 l.

The Writ of Excommunicat' Capiendo must be taken out of Chancery, and recorded in the Kings Bench before it be delivered to the Sheriff, 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son.

Neither a V [...] Laica removenda nor Excommu­nicat' Capiendo were retornable before the Sta­tatute of 5 El. c. 23. 3 Bulst. 92.

He that is certified into the Chancery by the Bishop to be Excommunicated, and after is taken by Force of the Kings Writ of Excommu­nicat' Capiendo is not Bailable by the Sheriff. or Gaoler by the Kings Writ. But if the Party offer­ed sufficient caution, de parendo mandatis Eccle­siae' in forma Juris, then should the Party have the Kings Writ to the Bishop to accept his cau­tion, and to cause him to be delivered. And if the Bishop will not send to the Sheriff to deli­ver him, then he shall have a Writ out of Chan­cery to the Sheriff to deliver him. Or if he be Excommunicated for a Temperal cause, or for a matter whereof the Ecclesiastical Court hath no conusance, he shall be delivered by the Kings Writ without any satisfaction, 2 Inst. 188; 189.

Retorn of Sheriff as to Clarks.

VIrtute istius brevis mihi direct' Justic' infra, script. certifico qd' infra nominat' T. H. Clericus est beneficiat' in Episcopatu London, nullum habens Laicum feodum in balliva mea ubi potest su [...] ­mon. nec est inventus inead.

A. B. Armig' Vic'.

The Sheriff Retorneth, That the Parson ante adventum brevis, or post receptionem brevis, or be­fore the Retorn of his Writ had resigned his Benefice. Et qd' non habet nec habuit bona neque catalla infra, &c. Its a good Retorn.

In Trespass or Debt against a Clark, Nihil habet is a good Retorn.

In Action brought against one wherein a Capias lies ( Ex gr. in account) the Sheriff Re­torns qd. est Clericus Beneficiat. nullum habens Lai­cum feodum in which he may be summoned; In this Case the Plaintiff cannot have a Capias, to take the Body of the person, but he shall have a Writ to the Bishop, to cause the person to come and appear. But if he had retorned qd' Clericus est nullum habens Laicum feodum, then is a Capias to be granted to the Sheriff, because it appeared not by the Retorn that he had any Benefice, so as he might be warned by the Bishop his Diocesan, and no Man can be exempt from Justice. But in the Case of the King where he is party, the Sheriff cannot Retorn Clericus Beneficiat' nullum habens Laicum feodum, as on Distress for Issues lost on a Juror, 2 Inst. 4, 627.

If a Scire fac' be brought upon a Recogni­zance, or upon a Judgment in a VVrit of An­nuity, and the Sheriff Retorn, that the Defen­dant is Clericus & Beneficiat' nullum habens Laicum feodum, &c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant, and upon warning, or two Nihils retorned, and default made, or if he appeareth and sheweth no mat­ter wherefore Execution should not be granted, then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis.

Retorn of a Writ of Entry.

The Count was of a third part of a Mesuage and one Stable. Petit cape was awarded to the Sheriff, and he makes his VVarrant to a Bayliff of a Liberty; he Retorns quod cepit in manus Domini Regis the said Mesuage, and saith no­thing of the Stable: And for this cause Judg­ment was reversed, Jones Rep. p. 357. Taite and Heynes.

In a VVrit of Entry sur Dissesin, it was ad­judged Error, because the Sheriff retorned not the Names of the Summoners or Veyors, Cro. Eliz. 557. Merris's Case.

Retorn of a Writ of Assize.

The Defendant pleaded to the VVrit of Assize, That the VVrit was retorned coram nob' apud Westm' not saying ubicunque; sed non allocat. The Court being here its well enough, and the Reason is, because it was for the Plaintiffs con­venience that it was ubicunque? 2. It was Summon' XII without an M. over VVhich per Cur' is well enough in Numeral Letters. 3. It was qd' sint ibi Aud. which should be ad Audiendum, as Reg. 198. b. But per Cur. This may be intended Auditur', and so is well enough without ad. 4 It was Si fec. whereas it should be Si fecerit. sed no allocat. and a Respondeas ouster awarded, 3 Keb. 326. Creek and Norfolk.

Quare Impedit.

In a Quare Impedit, The Defendant must be Summoned by the Sheriff. And this Summons may be made in Church, or to the Parson; the Sheriff Retorns Nihil upon the Summons, and upon the Attachment, and upon the Distress, the Plaintiff shall recover.

If the Defendant comes not at the Distress retorned against him, the Plaintiff shall have a VVrit to the Bishop, without making any Title, Dyer 241.

A VVrit of Enquiry of value in a Quare Im­pedit was executed the first day of the Retorn, but the Jury did not give their Verdict till two days after.

Retorn of a quid Juris Clamat. Vid. Dalton c. 71.

The Sheriffs behavior in the Writ and Inquisition, and Retorn of Malefactoribus in Parcis.

Vid. Cro. Car. 439 The King against the In­habitants of Epworth, and 17 other Villages, and Statute W. 2. c. 46. Co. Mag. Chart.

CHAP. XXVIII.

Of Retorns of Clericus Beneficiat'. Of other Re­torns as to Clarks. The Sheriffs Office in a Qua­re Impedit, Sessions of the Peace. The Sheriffs Office as to Election, and retorning of Knights and Bugesses to the Parliament. The Form of Indenture for the Knights of the Parliament and Burgesses. The Sheriffs Retorn of the Writ for Electing Parliament Men.

Retorns of Clericus Beneficiat', &c.

AT the next County Court, after delivery of the Kings Writ to the Sheriff, for the Electing Parliament Men, Proclamation shall be made by the Sheriff in full County, of the day and place of Parliament, and all they who are present shall attend, and in full County pro­ceed to the Election of their Knights for the same County; and after they are chosen, the Names of the persons chosen shall be written in an Indenture under the Seals of the Electors, and tacked to the said Writ of Parliament, Stat. 7. H. 4 15.

Upon any Retorn contrary to this Statute, of 8 H. 6. c. 7. the Sheriff shall forfeit 100 l. to the King, and have one years Imprisonment; and shall forfeit another 100 l. to the person chosen Knight of the Shire, and not duly Retorned. The chosers must have 40 s. per Annum Freehold within the said County.

The choice must be between 8 and a 11 of Clock in the Forenoon.

Every Sheriff, after receipt of the Kings Writ for Electing Knights of Parliament, ought forthwith to make out his Warrants under the Seal of his Office, to every Mayor and Baliff of Cities and Burroughs within the County; reciting in his said Warrants the Writ of Parli­ament, commanding them thereby to chuse Ci­tizens and Burgesses to come to the Parliament ( scil) if it be a City, to chuse Citizens for the same City by Citizens; and if it be a Burrough to chuse Burgesses by Burgesses (or Freemen of the same Burrough.) And those Mayors and Bayliffs must make a lawful Retorn of that Pre­cept to the Sheriff by Indentures made between them and their Sheriff of their Election, and of their Names which are elected, 23 H. 6. 15. And the Sheriff must set his Hand and Seal of Office to one part of the Indentures, and then deliver it to them to be kept, and to the other part the Mayor, or Citizens, or Burgesses must set their Hands and Seals, and deliver it as their Deeds to the Sheriff, to be certified and retorned by him with the Writ of Summons to the Clerk of the Crown; and all this under pain of 100 l. to the King, and Imprisonment for one year, and the Party grieved (or other person in his default) shall recover another 100 l. But they must commence their Action within 3 Months after the commencement of the Parliament. and Mayor and Bayliffs shall pay 40 l. Dyer 113. Pl. 118.

Note, Action on the Case lies against a She­riff, for Retorning other Knights for the County than were elected, and it is against the Statute of 7 H. 4. for false Retorn, and 23 H. 6. c. gives Debt in the Case, and its not in the Negative, and so does not exclude from other Remedy, 2 Siderfin 168. Nevile and Strowd.

Now the Names of the said Knights shall be Retorned into the Chancery by Indenture Sealed, between the Sheriff and the Chusers of the Knights in manner following.

The Form of the Indenture for the Knights of Parliament.

Haec' Indentura facta in pleno Comitat' Warr' tent' apud Burgum de Warr' de &c. Anno Wil­ [...]ielmi Tertij, &c. inter A. B. Mil. Vic. Comitat. praed. ex una parte & J. C. Mil. A. C. Armig. F. P. F. K. &c. & multas alias personas Comitat. praed. & electores duorum Militum ad Parliamentum in Brevi huic Indenturae consut. specificat. ex altera parts qui ut major pars totius Communitatis praed. tunc ibid. existens Jurat. & examinat. secundum vim for­mam & effectum diversorum Statutorum inde edit' & provisor. Eligerunt. E. P. Mil. & J. C. Mil. infra Comitat. praed. commorantes Gladiis cinct' mili­tes habiles & magis idoneos & discret. dantes & con­cedentes praedict. duobus Milit. plenam & sufficien. postestatem pro se & tot. Communitat. Comitatis praedict. ad faciend & consentiend. jis que ad Par­liaementum in dicto Brevi content de Communi Consi­lio Regni dicti Domini Regis nunc Angliae continge­rit ordinari, super ne [...]otiis in dicto Brevi spec. In cu­jus rei Testimonium uni parti hujus Indenture penes dictum Dominum Regem remanen. partes praed. sigilla sua apposuerunt, alter vero parti ejusdem Indenturae praed. Vic. sigillum suum apposuit. Dat' die Anno & Loco supradict. &c.

The Form of Indenture for the Citizens and Burgesses.

THis Indenture made, &c. (reciting the day and year, and the Kings Stile at Lage, prout supra.) Witnesseth, That by Vertue of a Warrant to me directed from Sir O. R. Knight, Sheriff of the County of Warwick, for the Ele­cting and Chusing of two Burgesses, Men of good Understanding, Wit, Knowledge and Dis­cretion, for Causes concerning the publick Wealth of the Realm, to be at his Majesties High Court of Parliament, to be holden at West­minster, the day of next coming. I E. L. Mayor of the Borough or Town of Warwick, with the whole assent and consent of the rest of the Burgesses there, have made choise and election of and of to be Burgesses of our said Borough of Warwick, to attend at the Parliament, according to the Tenor of the said Warrant to me directed in that behalf. In Witness whereof, I have to these Presents set our Common Seal of our said Bo­rough, the day and year first above written.

The Sheriffs Retorn of the Writ, for Electing a Parliament Man Knight of the Shire.

VIrtute istius Brevis mihi direct Eligi feci duos milites Gladiis cinctos magis idoneos & discret. de Commitat. meo praed. (videl.) W. F. & O. S. qui quidem milites plen. & sufficien. potestat. pro se & Comunitat. Com. praed. habeant ad faciend. & con­sentiend, iis quae ad diem & locum infra content. de Communi Consilio Regni Regis Angliae ordinari con­tingerit. [Page 408] Et praed. W. F. & J. S. Manucapt. sunt per J. P. W. B. R. D. & R. N. ad essend. ad Par­liamentum Domini Regis apud Westm. ad diem in­fracontent. ad faciend. prout istud Breve in se exigit & requirit Feci etiam praeceptum (to the Mayor or Bayliff) de G. qd. de Burgo de G. Elegi fecerint. duos Burgenses de discret. & magis sufficien. qd. sint ad Parliamentum dicti Domini Regis ad diem infra con­tent. ad faciend. & consentiend. ut praed. est qui qui­dem (Mayor, &c.) sic mihi respond. qd. Eligi fecer. de praed. W. Burgo de G. duos Burgenses discret' & magis sufficien. ad essend. ad Parliamentum praed. (viz.) S. W. C. R. W.

R. O. Armig. Vic.

The Sheriffs Office about the Sessions of the Peace.

As to the Precept of the Sheriff for Summon­ing the Sessions of the Peace, vid. Lamb. 367. Impress. 1599. it ought to bear date under the names of two Justices of Peace at least. And not of the Custos Rotulorum alone. It must be to Summon 24 Jurors, and to command all Con­stables, Bayliffs or Coroners, to give their at­tendance upon the Justices. And the Form of the Retorn of the Summons, vide Dalt. 198.

In some Cases the Sheriff is to joyn with the Justices as in Case of Riots, &c. 13 H. 4. c. 7.

He is to attend and assist the Justices of the Peace, to Arrest such as shall make any forceable Entries or Detainer, 15 R. 2. c. 1.

He is to Summon 24 to be of the Grand In­quest.

As to other sorts of Precepts, which the She­riff is to execute, in respect of Commissioners of Sewers, Commissioners of Bankrupts, and se­veral other Acts of Parliament, vid. Dalton. [Page 409] And the Acts themselves, all the Duties of his Office being so various, and especially in many late Acts, its best to refer to the Acts themselves, which no Gentleman ought to be without.

CHAP. XXIX.

Customs of London. Of their Officer, Prison, Court of the Sheriffs Court. How to lay the Custom of the Sheriffs Court. The difference between the Mayors Court and the Sheriffs Court. Sheriffs Court when kept. The manner of entring Actions in the Country.

Customs of London, as to Officers, Courts, Process and Prisons, &c.

Vide 9 Rep. 62, 63, 67. tit. Arrest, & vid. Calthrop.

BOth the Sheriffs of London are in Law but one Sheriff, and the one is not of London and the other of Middlesex, as is vulgarly sup­posed, Hob. p. 70, Lamb and Wiseman.

And the Sheriff of London is known in Law to be two persons; therefore if one Sheriff of London make his Retorn without his Fellow this cannot be holpen by Jeofail, it being as no Retorn at all, or a Retorn without the Sheriffs Name subscribed: And London had no Sheriffs in the 13th of Ed. 1. 1 Leon. 284.

In London the Mayor and Comminalty have the Office of Sheriff of London and Middlesex, and Two Sheriffs are yearly chosen, 3 Rep. Westby's Case.

Upon a Capias ad satisfaciendum to the Sheriff of Middlesex, to take J. S. if the Sheriff take him and put him in Newgate, which is the Common Prison for London and Middlesex, and after another Writ of Execution comes to the Sheriff of London; altho' the Sheriffs of London are also Sheriffs of Middlesex, and Newgate (where the Prison is) is the Prison for both Newgate a Prison for both London and Mid­dlesex. Counties; yet the Prisoner shall not be said to be in Execution upon this New Writ in London, nor may the Sheriff of London serve it upon him, because he is in another County.

For when the Cemmitment is to Newgate by Commit­ment by Sheriff of Middlesex, is not a Commit­mitment in London, tho' the She [...]iffs of London and Middlesex are one. force of a Writ to the Sheriff of Middlesex, he may not be said in any respect to be in the County of London; for the Counties continue several, and the Prison several, in respect of the several Commitments: For there are two several sides, and a partition between them, 1 Rol. Abr. 894. Coas's Case, Trin. 16 Jac. B. R.

By the Custom of London, the Writ of Execu­tion is directed to the Sheriffs of London, and not to the Coroner, (who is the Mayor, 2 Rol. Abr. 806.

The Retorn of the Outlawry out of London in C. B. is generally made without saying, Per judicium Coronatorum.

Sheriffs Court.

The Custom is, When a man is impleaded Court of Conscience before the Sheriffs, the Mayor upon suggestion of the Defendant may send for the parties, and for the Record, and Examine the parties upon their Pleas; and if it be found upon his Exami­nation that the party Plaintiff is satisfied, that [Page 411] he may award that the Plaintiff shall be barred. And this is called, The Court of Conscience, 4 Inst. c. 50. 8 Rep. City of London's Case.

The Plaintiff in Assault and Battery in his Replication saith, ‘The City of London is an Ancient City, and have Pleas, and that there was a Plaint in such a Court before F. M. by virtue of which Process the Plaintiff was taken.’ He should have alledged a Custom to hold a How to Lay the Custom of the Sheriffs Court. Court before the Sheriffs, and that F. M. was then Sheriff: It is said, Coram F. M. uno Vicecom', its well enough, there being two Courts, tho but one Sheriff, 1 Keb. 564. Osborn and Parker.

As to the difference between the Sheriffs Court, and Mayors Court.

A Clerk of the Mayor's Court said, That the Fi­gures Difference of the Entries in the Mayors Court, and the Sheriffs Court. 264 (in their Entries) signifie the 26th day of the 4th Month, 26 the Day and 4 the Month, accounting November (in which the Mayor is Chosen) the first, and so the fourth Month is February.

But in the Sheriff's Court they count their Months in October.

And accordingly it was Ordered, That Ashfield the 20th day of February commenced a Plaint, &c. 2 Rol. Rep. 380. Ashfield's Case.

If an Erroneous Judgment be given in any Writ of Error to be brought in the Hustings. of the Sheriffs Courts of the City of London, the Writ of Error to Reverse this Judgment must be brought in the Court of the Hustings before the Lord Mayor; for that is the Superiour Court, Pract. Reg. 124. 4 Inst. 247.

Direction of Writs.

Quodlibet breve quod tangit liberum tenementum dirigitur Majori & Vicecomitibus, & alia brevia tantum Vicecomitibus.

The Two Sheriffs of London do each of them Sheriffs Courts, when kept. keep a Court of Record, where they hold Plea of all Personal Actions, and the two Prisons (called the Compters) belong to them.

And they have two Court-Days in every Week apiece: For the Woodstreet-Compter, on Wednesdays and Fridays; for the Poultry-Compter, on Thursdays and Saturdays.

In a Plaint of Debt levied before any of the Sheriffs, the Custom is, That the said Sheriffs Ore tenus send to the Serjeants of the Compter, either to Summon or Attach the Defendant without Warrant; and upon Nihil Retorned within the City, that then the Serjeants, and every of them, by the Commandment of the Sheriff have used to Attach and Arrest the De­fendant, to have his Body at the next Court before the Sheriff at the Guild-Hall, &c.

In this manner they certifie their Records: But the usual practice is, to Enter an Action in the Office for that purpose, at one of the Compters; which Action must be Entred with Care: For it is the Original in that Court by which you must Declare, and from whence there must be no Variance.

And when an Action is Entred, then any one Of Entring Actions in Crmpters. of the Serjeants may Arrest the Defendant, and bring him into Custody until he find Bail to Answer the Condemnation, which Bail is to be Bail. taken by one of the Clerk-sitters.

The Defendant may be Arrested by the Cu­stom Arresting by Ser­jeants. of London, after Entry of the Plaint in the Porters-Book, before the Entry of it in Court before the Sheriff: And after Plaint Entred, the Serjeant may Arrest without Precept.

The Serjeant need not shew his Mace, because Serjeant shewing his Mace. he is sworn and known, altho' not to the party; and a known Bayliff need not shew his War­rant, altho' demanded.

But in 6 Rep. 52. Countess of Rutland's Case, a General Arrest by a Serjeant by shewing the Mace, and touching his Body with it, and saying ☜ Sir, I Arrest you, is insufficient; for he ought to shew at whose Suit, out of what Court, for what, and of what Retorn, &c. That the party may know, &c.

In Escape the Defendant pleads the Custom of Escape. London, That the Mayor and Sheriffs of London have used to enlarge Prisoners that were Arrested, in coming and retorning from their Courts, having Causes there depending; and sets forth a Plaint in London against the Defendant, and that hether the Court can dis­charge one arrested, who is coming and tetur­ing to the Court. he was arrested, and appeared, and pleaded to Issue; and as he was coming to Court, to defend that Action, he was arrested, as is supposed in the Declaration. And per Cur. the Court cannot discharge one arrested, except he be arrested in the Face of the Court, 1 Brownl. 15. Wilson and The Sheriffs ef London.

CHAP. XXX.

The Sheriffs Duty as to the Assizes. And as to Sessions of the Peace.

The Form of the Warrant made by the Sheriff, or Undersheriff for Summoning the As­sizes, vide Dalton 196. A Schedule may be Filed to the backside of the Warrant; wherein he shall set down the names of the Grand Jury and Pet­ty Jury of Life and Death; to whom he must give warning by his Bayliff.

The High Sheriffs themselves are to attend the Judges at the Assizes: And also Stewards Bayliffs, and other Ministers of any Liberties or Fran­chises, &c. shall be attendant to the Justices of Assize and Gaol Delivery of the same Counties, wherein such Liberties and Franchises shall be. And shall be fined by the Judges in case of failure.

Every Sheriff (and all other persons) which have the Custody of the Gaols (or Prisoners for Felony) ought to certifie the names of every of their Prisoners, which are in their Custody for Felony, to the Justices of the next Gaol Deli­very, upon pain of 5 l. for every default.

CHAP. XXXI.

Of Sheriffs and Officers Fees. Remedy and Security for Fees. Extortion Punishable. What Assumpsit good, as to paying Fees, or not.

Of Sheriffs and Officers Fee.

AT Common Law a Sheriff might not take any Fees, but it was Extortion: But now he may take the Fees allowed by the Statute, Cro. El. p. 654. Stanton and Sullyard.

The Statute is 29 El. c. 4. No Sheriff, Under­sheriff, Sta. 29 El. c. 4. of 12 d. in the Pound. Bayliff of a Liberty, or any of their Deputies▪ shall either directly or indirectly, take more for serving an Extent or Execution, than after the Rate of 12 d. in the Pound for every 10 l. and 6 d. for every Pound above 100 l. on pain to forfeit treble Damages to the party grieved; and besides, 40 l. between the Queen and the Prosecutor. This Act not to extend to Fees of Executions within Cities or Corporations.

Yet the Sheriff, by the Equity of Stat. 23 H. 6. c. 10. he shall take 4 d. for every Warrant, Winch. 21.

Upon the words of this Statute it was a Question much Argued in Latch. 17. 51. Welden and Vesey, Jones 307. Lister and Bromley, Cro. El. 335. Gurney's Case, Cro. Car. 286. Lister's Case, Winch. p. 21, 50. Empson's Case, where the Statute gives 12 d. in the Pound for the first 100 l. and if exceeds that, then but 6 d. Whether this shall be taken, but only 6 d. in the Pound for all that exceeds 100 l. or whether he shall have 12 d. for the first 100 l. and Six pence for the rest? [Page 416] And it was Adjudged that he shall have 12 d. for every Pound of the first Hundred, and 6 d. for every other Pound above the Hundred: And so is the constant practice. Tho' Hobart (in Winch. 50. Empson's Case) was strong against it, and that the Sheriff shall have but 6 d. in the Pound.

As to the Proviso, That it shall not extend to Executions within Cities or Corporations, it was held, That it was only to be intended for the execu­ting Judgments given in the Courts of the said Corporation, and not to the Sheriffs of Cities or Corporations, for executing Judgments out of Superiour Courts, Jesson. Sheriff of Coventry's Case, cited in Lister and Bromley, Cro. Car. 287.

Vide Latch. 17, 52. Poph. 173. Welden and Vesey, The Case Argued.

In an Action upon this Statute of 29 Eliz. against the Sheriff for excessive Fees, it was moved in Arrest of Judgment, because it said ad Parliament' tent' per prorogat' 15 Febr. 29 El. Stat. 29 El. when be­gan. and the Rolls appeared (by Copy sworn) 29 Oct. 28 Eliz the Parliament began, and an Adjorn­ment to 17 Nov. 6. and no Prorogation at all.

So 35 El. 1. Sect. 11. it said 29 El. 6.

Vide 1 Anders. 294. Rast. Abr. Elenchus Parliam. & Keb. 3. 742. Sprig and Eve.

Quaere, When one Sheriff shall make the Ex­tent, and the other Sheriff the Liberate, who shall have the Fees given by the Statute.

Note, The Fees shall be paid by him that sets him at work, and not by the Prisoner. Of whom the Bayliff on Arrest having taken 7 s. for Attorneys Fees, was convicted of Extor­tion, 1 Keb. 623. Le Roy. versus Wade.

Poundage was allowed the Sheriff out of 100 l. (Fine imposed after Conviction on Indictment of Battery in B. R.) levied upon a Fieri fac', and it was allowed out of the Money, in the hands of the Clerk of the Crown payed by the She­riff. Tho' there was no President in B. R. for it. But the Barons always make such allow­ance in the Exchequer, after the Moneys paid in▪ there by the Clerk of the Crown, Sir Thomas Jones 185. Le Roy versus Wade.

Of Sheriffs Security and Remedy for Fees, and what Fees they may take or not, and what shall be Extortion in them or not, and how punish­able.

What Security the Sheriff may take for his Fees or not.

The VVarden of the Fleet, and the VVarden of the Palace of Westminster, may take Bond for Diet and due Fees of the Office, Hetly 176. Harris and Lea.

The Sheriff may take a single Bill for his The Sheriff shall take single Bill, for his Fees but not with a pe­nalty. Fees, and that is the ordinary course, but not with a Penalty. To this purpose there is a notable Case, Empson and Bathurst, Winch 22.

The Condition of a Bond to the Sheriff is to pay 20 l. That is, for Money which is given to him for his Fees, which are due by the Stat. of 29 Eliz. Defendant pleads the Statute of 23 H. 6. c. 10. the Case was; A Statute of 200 [...] was acknowledged to the Defendant by J. S. and this was extended by the Plaintiff being Under-sheriff, and it was agreed between C. E. Brother to the Plaintiff, and the Under-sheriff before the Libertate excecuted, That the Defen­dant should enter into the said Bond to the use of the Plaintiff. Three Points were resolved per Curiam.

1. This Bond is not within the Statute of 23 Statute 23 H. 6. H. 6. for the Party was not within the Ward of the Sheriff. And so was Beaufage's Case.

2. The Sheriff may not take his Salary appoin­ted by the Statute till a compleat Execution, i. e. till the Libertate, for the words of the Statute are in the Negative, and doth not establish the Fees, but only tolerates them. And by Hobart, Action is by Sheriff. if the Conisee sue an Extent, and then refuse to sue the Liberate, to the intent to defraud the Sheriff of his Fees; the Sheriff shall have his remedy by Action on the Case.

3. This Obligation is void by the Common Law, and Extortion, as Dive and Manningham Case is, Plowd. 65. The Sheriff may take a Bond with a great Penalty, for the appearance of the Party, but not for his Fees, by the 23 of H. 6. for that Statute as to Fees is not repea­led by 29 Eliz.

What Remedy the Sheriff shall have for his Fees.

Action of Debt lies for a Sheriff upon the Statute of 29 Eliz. c. 4. for Execution Fees, al▪ tho' the Statute doth not say he shall have the Fees, nor any Action for them; but only saith, he shall not take for any Execution made, any Consideration or Recompence, besides what is therein mentioned, which it shall be lawful for him to take ( viz.) 12 d. for 20 s. where the Sum doth not exceed 100 l. and 6 d. above 100 l. 1 Rolls Abr. 598 Proby and Lumly versus Mitchel, 1 Rolls Rep. 404.

The Sheriff shall have Action on the Case, but not debt upon Assumpsit, to pay his Fees due by the Law of the Realm, for to execute an Execution. Moor 699. But he shall have Debt for his Fees not prohibited by the Statute of 29 Eliz. Moor 853. Staunton and Proby, Moor 667. Mor. 667. S [...]llyard and Stamp.

Where and in what Actions the Sheriff shall not take Fees.

The giving of Money to a Sheriff to Arrest a Man is against the Law, 1 Rolls Rep. 313.

A Sheriff cannot take Money for Fees upon delivery of Warrants to his own Bayliff, but must stay till the Money is levied, aliter if it be to Special Bayliff, Moor p. 468. [...]. 669. Sull­yard and Stamp.

No Fee is due to the Sheriff for Executing a Cap. Utlag▪ Cap. Utlegat. either for VVarrant to Execute i [...], or for the Retorn of it. Sheriff took 200 l. to [Page 420] Execute Hab. fac. Possessionem, Hetly p. 52. Wild­sheres Hab' fac. Possession. Case, Litt. Rep. 65. Mesme Case.

Per Cur' Its great oppression to the Subjects, that the Sheriffs (to whom the Statute had given so much in the Pound, in Case of Execution against a personal Estate) should take such Fees in case of a real Estate; and it was said, it was not to be found that they have any legal Fee upon this Execution, but the usual Fee which they ought to take is 2 s. 4 d. 2 Siderfin 155.

What shall be said Extortion in Sheriffs and Gao­lers, &c. and how punishable.

As to the Sheriffs taking Bonds, Extorsivè, Vid. supra in tit. Stat. 23. H. 6. c. 10.

By W. 1. c. 26. no Sheriff or any Minster of the King, shall take any reward for doing his Office, but only that which the King allows, upon pain that he shall render double to the Party, &c. but later Statutes have permitted them to take, in some Cases. But yet, such reasonable Fees as have been allowed by Courts of Justice of old to inferior Ministers and Attendants on Courts, if they be demanded, its no Extortion, Co. 1 Ins [...]. 368. Shirly and Packer. 10 Rep. 101.

If any Bayliff or other Sheriffs Officer, shall take any thing of any person, to spare them for appearing at the Assizes, Sessions of the Peace or the like, it is Extortion.

If the Sheriff, or any of his Officers shall take any Money, or other reward for the omitting of any Arrest or Attachment to be made; it is Extortion, and the Sh [...]riff o [...] Officer so offen­ding, shall forfeit for every such offence 10 l. to the King and Informer, 32 H. 6. c. 10.

As to the Punishment of Sheriffs for Extor­tion, its either by Indictment, Information, Imprison­ment, Commitment. As to Indictments, what is good or not.

Indictment of Extortion against a Bayliff of Indictment. an Hundred, qd' Colore Officij he took Extorsive Money, and shews not for what matter or cause. Per Curiam, Its well enough, the Officer being Bayliff of an Hundred, Especially being after a Verdict. But Quaere of this, 1 Keb. 557. the King and Gover.

By 23 H. 6. c. 20. on Extortion treble Dam­ages Treble da­mages. are given to the Party, and the Justices of Peace may Assess them; but they ought first to enquire of the Damages by a Jury. Therefore in Bumpsteads Case, Cro. Car. 488. Indictment was against the Sheriff fór Extortious Fees, on two several Indictments; They awarded to the one treble Damages; That is, where he took of one 20 l. Extorsivè, they awarded to the Party 3 l. and 40 l. to the King. And on the other where it was found he took 8 s. 8 d. Extorsivè, they awarded he should pay to the Party 26 s. 8 d. So a quadruple value, and 20 Fine to the King. And it was adjudged Error, causa qua supra.

The Indictment must be contra formam Statuti, Contra for­mam Stat. 23 H. 6. if they will proceed upon the Statute of 23 H. 6. id. ibid. The Court were doubtful, if this Statute extend to Extortions, unless taken upon Arrest. And Judgment was reversed.

The Sheriffs Bayliffs were indicted at the Indictment at Quarter Sessions. Informa­tion, Infor­mers have the 3 l. Quarter Sessions for Extortion, Jones 379. The King against Lamfern.

An Informer on Conviction of a Prisoner for Extortion, or other Penal Law, may have the third part of the Fine, according to the Kings privy Seal for that purpose. And he had so of 10 l. set on a Bayliff for 3 l. taken for Exe­cution [Page 422] done to his person, 1 Keb. 357. and pag. 487.

Information was brought against the Keeper of the Gaol, or Prison of the Castle of Maid­stone, for Extortion on the Statute of 23 H. 8. And it was found by Special Verdict, that there is not any Castle at Maidstone but a Gaol, and the Defendant was Gaoler there. Per Curiam, Judgment pro Querente, 2 Rolls Abr. 211. Goodwin and May.

In 2 Brownl. 283. The Sheriff was commit­ted to the Fleet for taking Illegal Fees, 2 Browl. 283.

A Serjeant of London was committed in Execu­tion Commit­ment for taking il­legal Fees. Mitigation of F [...]e. for a Fine in Extorting Fees on an Arrest, and a third part was allotted to the Prosecutor. His VVife petitioned the Court to mitigate the Fine, but they could not, 3 Keb. 328. the King and VVelson.

The Sheriff of Suffolk was imprisoned for tak­ing a Guinea, there being only 2 s. due to him, and he retorned two Guineas to the Plaintiff, be­ing double of what he had taken, on the 3 Ed. 1. cap. 26. and so he was discharged, 3 Keb. 714. Butlers Case.

Assumpsit and Consideration about paying Fees, what shall be good or not.

If a Man assume for Money given to serve certain Process, this is not a good consideration, as being against Law. For it is Extortion in the Sheriff to take it, and unlawful for the other to give it, H. 10. Jac. Boothby and Alport, 1 Rolls Abr. 16. Shirley and Parker. Ergo Cro. El. 654. is not Law, Stamp and Sullyard. Executor Sues Execu­tion by Elegit, and B. an Estranger as a friend [Page 423] to the Executor, in consideration that the Sheriff will Execute the said Elegit presently, and of 6 d. paid him by the Sheriff assumes to pay 60 l. to him; whereupon the Sheriff Executes the VVrit. This Consideration is against Law; for the Sheriff ought to do his Duty without reward; and this 60 l. is not any discharge of Sheriffs Fees, due by the Statute being given by a Stranger, and not exprest for them, 1 Roll. Ab. By a Stra [...] ­ger. 16. Bird and Cage, and tho' it was alledged, that this Sum promised him is no more than what the Statute of 29 Eliz. allows him to take for his Fees; yet that helps not the Case, for that Statute only excuseth him for his taking Fees, whereas the Common Law did not permit him to take any thing for the executing VVrits. And the giving of 6 d. is no sufficient Consideration being joyned with the other that is unlawful, Cro. Jac. 103. Mesme Case.

A. is Outlaw'd at the Suit of B. for Debt, and B. Assumes in Consideration, that C. an Estran­ger In conside­ration that C. an E­stranger will arrest a Man. will Arrest A. upon a Cap. Utlag', that he will pay him 40s. This is no good Considera­tion, altho' he shews in his Declaration that he was after made a Special Bayliff to the Sheriff, to Arrest him by a VVarrant directed to him. This is Extortion, and the Sheriff by such means may extort great sums for doing his Office: And the Bayliff is the Officer of the Sheriff and his Servant, 1 Roll. Abr. ib. Faldoe and Salter. Jones Promise to a Stranger to procur [...] the Sheriff to arrest J. S. is good. 65. Mesme Case, Latch 54. Mesme Case. But if a Pro­mise be made to a meer Stranger to go to the She­riff, and procure him to Arrest S. J. this is a good Consideration; so if one pray me to go with the Sheriff to Assist him, in making Executi­on, and Promiseth me, &c. its good.

CHAP. XXXII.

Bonds, or Covenant between the High-sheriff and Under-sheriff, or other Officers. What shall be good in Law, or not: And when said to be forfeited, or not.

Bonds, Covenants, &c.

IF the Under-sheriff Covenant with his High­sheriff, Difference between a Co [...]enant and a Bond. to save him harmless from all Fines and Amerciaments for any Escape; and Cove­nants also, That he will not execute any Writ of Execution above the Sum of 20 l. without Warrant from the High-sheriff: This last Cove­nant is against Law, and void; yet the other is good, (but a Bond in such case is void in all.) For by the Statute of 27 Eliz. c. 12. the Under­sheriff takes Oath to execute all Process, Hob. 15. Norton and Sims, 2 Roll. Abridgm. 30. mesme Case.

Vide supra tit. Under-sheriff.

The Keeper of Ludgate gives Bond to the To save Sheriff harmless from Escapes. Sheriffs of London, That he should safely-keep the Prisoners committed to his Charge, and should save the Sheriff harmless from all Escapes. The Bond is good. ( Quaere as to the last part.) Cro. El. 466. Hector and Genn [...]t. Escape on Cap. Utlag. being void, be­cause Retorned 10 years after, it was awarded.

But it is not forfeited by Escape of one taken by a Capias Utlagat' in Debt; because the Capias Utlagat' was awarded the 25th of Eliz. and was Retornable the 35th of Eliz. and so meerly void. For every Capias ought to be Retornable the ensuing Term; because of the mischief that otherwise might befal the Prisoner to be kept [Page 425] always in Prison, and he might well let him at Large, 21. H. 7. 16. 8. Ed. 4. 4. Dyer 175.

Tho' peradventure this Arrest, by force of this Process, is excusable in False Imprisonment by the Sheriff, yet clearly its no lawful Imprison­ment: and as to the prejudice or benefit of a Stranger, he shall never be said to be a Prisoner, 14 H. 8. 16. 11 H. 4. 36.

Debt on Bond to perform Covenants; which Defendant not to let at large any Prisoner arrested in Debt. Need not shew the time and place of the Ar­rest. was, That the Defendant should not let at Large any Prisoner arrested, without the Sheriffs War­rant. The Plaintiff shews, the Defendant had let such a Prisoner at Large at Westminster, &c. it is good without shewing the time and place of the Arrest. For the Escape is the Material part of the Covenant, and the manner of the Arrest is not in Question, and whether he were legally taken or imprisoned, was not material, when he was suffered to go at Large, Siderfin p. 30. Jenkin's Case.

The Condition of the Bond was, Whereas For a Bayliff of an Hun­dred to make true Retorn of all his Writs. Pleading. S. was Sheriff of Surrey, and made T. Bayliff of the Hundred of B. Now if he should execute his Office, &c. and make true Retorn of all Writs directed to him, then, &c. Defendant pleads on Oyer particularly, performance to all. Plaintiff Replies, Process was directed to him, to levy Issues on J. S. and that he made his War­rant to T. to Execute the same, which Warrant he did not Retorn.

On Demurrer, Judgment was against the Plaintiff; because he did not shew that the Issues were to be Levied in the Hundred of B. For tho' the words are general, to make Retorn of all Warrants directed to him, yet it was to be understood of such only as were to be Executed [Page 426] in his own Hundred, of which he was Bayliff, Allen p. 10. Slaughter and Day, 2 Sand. 414, 415. mesme Case cited there.

Debt on Bond by Under-sheriff, to defray the Expence of the High-sheriff; and Performance To pay the Ex­pence of the High­sheriff. pleaded. Plaintiff Replies, J. S. recovered in Charges in carrying the Prisoner from Chelms­ford to London, not shewing it was done by virtue of Habeas corpus. Defendant Rejoyns, This was by private Agreement. Plaintiff Demurs, because it was not Concluded to the Country. Per Cur', There must be a Compulsion shewed by Habeas corpus to the Sheriff of Essex, without which he cannot deliver him over to another Sheriff; and then there is an Allowance upon the Account in the Exchequer, in case of Transporting, being Signed by the Judges. And the Court gave leave to Discontinue, 3 Keb. 448 Lewen and Allcock.

As to the Form of the Indentures and Cove­nants between the High-sheriff and Under­sheriff, vide Dalton, Greenwood of Courts, and several other President Books.

CHAP. XXXIII. Of Sheriffs Accompts.

AS for the Periods of Time wherein the manner of the Sheriffs Accompting to the King have been altered by Acts of Parlia­ment and Practice, you may peruse a Learned Treatise of the late Lord Chief Justice Hales touching Sheriffs Accompts. You find there how the King's Farms were anciently Answered by the Sheriffs, and the manner of the Collect­ing of the Kings Revenues of the County.

Now that which was Firmi Comitatus, were the Vicountiel Rents, and they came under various denominations, ( viz.) Blanch-Rents, Albo firmae Praestatio pro pulchrè placitando, Visus Frankpledg', Redditus ad Turnum, Certum Letae; and these were in time contracted to a sort of Annual Revenues.

And the uncertain Annual Revenue was called Proficuum Comitatus, which in ancient Times was considerable, when most Law-Suits were Trans­acted in Counties and in Hundred Courts, Fines, Issues and Amerciaments in those Courts; and in those elder Times they were conside­rable.

The Farm of the Bailywick of one County was let at 100 l. per Annum temp. H. 3. but by Stat. 27. H. 6. c. 10. the Sheriff is restrained from Letting his Bailywick to Farm.

But these were formerly, and now are an­swered at two Terms in the year, Michaelmass and Easter, and are called proferae Vicecomitis, or Sheriffs proffers. But it is as it were a Mock-payment [Page 428] (now being so inconsiderable, most Causes being tryed in Superiour Courts) for upon Account he generally has all his Proffers paid and allowed to him again.

Vide [...]he Statute of 4 H. 5. 2. & 34 H. 8. c. 16.

Since the Statute of 34 H. 8. c. 16. the Sheriffs might discharge themselves of the Casual Charges, or Annual uncertain Charges, and most ordinarily after this Statute did discharge them­selves of the entire Firmae de proficuis Comitatus; and they ascertained to the Court, that there were no such profits beyond the charge in col­lecting them, or that the charge of keeping the County Court, the Tourn and Hundred Courts, which were the things that made up the Firma de proficuis surmounted the benefit: And this Making appear, was no other than the Oath of the Sheriff, and the Statute gives him that be­nefit.

Yet tho' the Sheriffs did use to discharge them­selves by their Oaths of the entire Fermae de pro­ficuis Comitatus, and of a great part of the Vi­countiels; yet till Anno Dom. 1650. these entire Farms were constantly written out in Charge to the Sheriff upon the Summons of the Pipe, tho' it was but a piece of Formality.

But now the Firmae de proficuo Comisat' is wholly put out of the Charge of the summons of the Pipe, by an Order made in the Exchequer 1650, which is followed to this day.

By the Act in Car. 2. Entituled, An Act for the preventing the unnecessary delays of Sheriffs in passing their Accounts. No Sheriff shall be charged in Account to answer any illeviable Seisure, Farm, Rent or Debt, or other thing, which was not writ in Process to him or them to be levied, [Page 429] wherein the persons of whom, or the Lands or Tenements out of which, together with the Cause for which the same shall be so levied, shall be plainly and particularly expressed; but shall be thereof wholly discharged, without Petition, Plea, or other trouble or charge whatsoever.

If the Sheriff shall seise the Goods of one that is Outlawed, &c. and does not accompt for the same, the Owner of the Goods may have Action of Trespass upon such Seisure; and shall recover the Goods, or the value thereof in Damages. For the Sheriff must plead that he has accounted for them; otherwise he shall be a Trespassor ab initio.

Note, The Sheriff is Accountable in respect of his Office; but if he be made sine Com­puto, he has by this the Profits to his own use, 1 Roll. Rep. 183.

O. N. in the Exchequer makes the Sheriff Debtor to the King, and the Debtor himself Debtor to the Sheriff, Hob. 206. Speake and Richard's Case.

CHAP. XXXIV.

Of Coroners. How the Coroners must be chosen, and the Credit the Law gives to them; and how when they shall be discharged. The Demeanours as to Outlawries. Coroners Inquest.

Of Coroners, &c.

THe Office of Coroner ever was, and yet is 4 Rep. 41. Heydon. 8 Rep. 41. Gr [...]nly's Case. 5 Rep. Specot's Case. 4 Rep. 45. Wrote's Case. 9 Rep. 31. Strat. Mar. 5 Rep. 108. de Wreck. 10 Rep. Denband. St. 28 Ed. 3. c. 6. Elect. of [...]oroners. Vid. 4 Inst. 271. Mag. Ch. 17. cap. W. 1. c. [...]0. Artic. super Chart. c. 3. Eligible in full County by the Freeholders, by the Kings Writ De Coronatore Eligendo. And so was the Sheriff in former times Eligible, and the Sheriff was chosen by Writ directed to the Coro­ners.

The Coroner, because he is Elected by the Freeholders of the County by Writ, and retorn­ed of Record in the Chancery, albeit the King dieth, remaineth.

Now seeing the Coroners are Elected by the County, if they be insufficient and not able to answer such Fines and other Duties, in respect of their Office, the Country as their Superiour shall answer for the same.

If a Certiorari be directed to the Sheriff only in case of Appeal, or Indictment of Death, it is not sufficient to remove the Cause; for the Co­roner is Judge of the Cause, and not the Sheriff; only the Sheriffs have Counter Rolls with the Coroners.

3 H. 7. c. 1. gives to the Coroner a Fee of 13 s. 4 d. upon the View of the Body, and of the Goods of the Murderers: But nothing on Mis­adventure, 1 H. 8. c. 7. & W. 1. c. 10.

Coroner is an Officer for the King; but he is not an Officer when he comes between the par­ties; and the Court will not suffer Examination▪ when the Testimony may be vivâ voce, 2 Rol. Rep. 461.

Altho' the Coroner takes Examination, yet in the Case of the King it is at the discretion of the Judges, if he will allow them or take them vivâ voce, 2 Roll. Rep. ibid.

Before the Stat' Artic super Cler. 3. the Coroner of the Verge by himself might Enquire of Mur­der: But because the King's Court often remo­ved into another County, by reason whereof no Enquiry could be made, that Statute was made to remedy it, and one person may be Coroner of the King's Houshold and Coroner of the County; and yet they are two Coroners, &c. Quando duo jura concurrunt, &c. 2 Leon. p. 160. Borow and Holcroft.

Where Process shall be awarded to the Coroners, or not.

When the Sheriff is Plaintiff in Action of Waste, Election shall go to the Coroners, Hob. 85.

Vide Plowd. Wimbish and Willoughby.

VVhere VVrits shall be directed to the Coroners, and where not.

A Sheriffs Bond for Appearance is sued; the Writ upon it ought to be directed to the Coro­ner, because the Bond is to be sued in the She­riffs Name, Pract. Reg.

Upon a Venire fac' awarded to Coroners, and Retorn. two Coroners Retorn this, and two Coroners Retorn the Distringas, where at the time of the Retorn there were four Coroners; this is not good, because all the Coroners ought to make the Retorn and joyn in it, they being Ministers and not Judges, Hob. Rep. Lamb and Wiesman.

This Case is Reported by Cro. Jac. 383. (in the Exchequer-Chamber.) The Venire fac' being awarded to the Coroners, was Retorned by T. B. and T. R. Coroners; whereas at the time of the Writ awarded and retorned there were two other Coroners, ( viz.) VV. S. and T. P. and the Retorn ought to have been in the Name of the four Coroners.

Per Cur. It's not Error.

1. Because it ought to have been taken by way of Challenge at the time of the Trial; and for­asmuch as he hath not challenged it, he shall not now assign it for Error.

2. Admitting it were Error assignable at Com­mon Law, yet now (being after Verdict) is aided by the Stat [...]te, which aids Mis-Retorns and Insufficient Retorns, and this is but a Mis-Retorn.

Upon the Venire fac. Retorned by Coroners. their Names were writ A. & B. Coronatores, and upon the Hab' corpora the Names of A. and B. were written, but not the Name of Coroners. Per Cur. It's no Error: But if their Names ought to have been here, then it is not aided per Stat. 32 H. 8. nor 18 Eliz. Cro. Eliz. 703. S [...]r [...]ggs's Case.

Where a Jury is Retorned by a Coroner, where it ought to be by the Sheriff, & è converso, this is not redressed by the Statute Anno 32 H. 8. 18 Eliz. (Vide the late Stat.)

Writ of Covenant was directed to the Coroners of Chester, with a claim at the end of the Writ Quia praed' J. D. miles est Vicecomes Comit. Cestriae fiat Executio brevis praed. per Coronatores ita qd. Vicecomes s [...] non intromittat. Per Cur. If the Writ be directed to the Sheriff and he is Party it is, good to avoid the doubt to take a Writ to the Coroners: For if the Defendant appears and accepts thereof, and comes in and levies the Fine, he shall never after assign it for Error, Cro. Car. Done and Smith.

If a VVrit be directed to the Coroners, if Where and what mat­ters done and execu­ted by one Coroner where there are more shall be good and what not. 4 Rep. 41, 45, 46, 47. 5 Rep. Longs Case 10 Rep. 103. there be three they ought all to execute this VVarrant, for the same is to be executed accor­ding to the direction. And by Coke the differ­ence is, If it be in judicial matters any two of them may do it, if in ministerial, all are to do it, 3 Bulst. 77, 78. Phelps and VVinch [...]omb. so Hob p. 70.

The Plaintiff for the expedition of his Tryal, surmised that he was Servant to the Sheriff of Cornwal, where the Action was brought, and prayed a Venire to the Coroners. And the De­fendant non dedixit. Per Cur. Forasmuch, as if the Sheriff had retorned this Pannel, it had been a good Cause to quash the Array for favour, that the Plaintiff to avoid that delay might well shew it, and have Process to the Coroners; and the rather, for that this is a judicial VVrit, Plow. 74. Cro. Eliz. 581. Cham. and Mathew. so in Eject­ment vers. 4. who Plead non cul. if the Plaintiff suggest, that the Sheriff is of Affinity to one of the Defendants, shewing how; and upon this prays a Venire fac' to the Coroners, and the De­fendant Be a great delay [...] Rolls Abr. 668. Fox and She­pard. denies it not, and the Venire fac' is a­warded to the Coroners; Its well awarded: For tho' none of the Defendants may challeng the Array, for that the Sheriff is of Affinity with [Page 434] one of the Defendants; yet the Plaintiff ought at the Tryal either challeng the Array and so de­lay himself, or he ought not to Try this during the time that he is Sheriff, which he would. If the Sheriff levy a Fine, the VVrit of Covenant must be directed to the Coroners, 1 Roll. Ab. 797. Done and Simthart. Cro. Car. 416. Mesme Case, Jones p. 343. Mesme Case and this Clause was in the end of the VVrit, quia praed. Johannes Done miles est Vicecomes Comit. Cestriae fiat Execut. brevis praed. per Coronatores ita qd. Vicecomes non se intro­mittat.

In a thing which concerns the Sheriff, and his Interest, Venire fac. ought to be awarded to the Coroners, Cro. Jac. 551. Loader and Samuel.

The Sheriff who was Lessor to the Plaintiff was Master to one of the Coroners in Ejectment; the cause was alledged and confessed, and Ve­nire fac' issued to the Coroners ita qd. the Ser­vant should not intermeddle, Moor 625. no. 853.

A Retorn of a Venire by three Coroners, where are four, its Error at Common Law, but holpen by the Statute, Hob. p. 70.

Venire fac' was awarded to the Sheriff, which was quasht for favour of the Under-sheriff, who retorns the Pannel and a new Venire fac' award­ed to the Sheriff ita qd' le Under-sheriff ne se in­tromittat. Its no Error, tho' it be not directed to the Coroners, 1 Roll. Rep. 272. Walters Case.

Venire fac' not to be awarded to the Coroner, till there be a default in the Sheriff, 1 Rolls Rep. 364.

Venire fac' may be awarded, if the first be quasht for favour in the Under-sheriff, 1 Rolls Rep. 272.

The Authority of a Coroner, and of what things he may enquire, &c. and the Order of such Enquiry, and of what not, 4 Rep. 41. Walkers Case, Heydon 45. Vauxe's Case, and Wig's Case, 5 Rep. 109. Foxly's Case.

The Coroner may on Estrepment provide against Wast by taking the Posse Comit. Hob. 85. in Wast brought by the Sheriff, Earl of Cumber­land vers. Countess Dowager.

As the Sheriff in his Tourn may enquire of all Felonies by the Common Law, saving the death of a Man; so the Coroner can enquire of no Felony, but of the death of a Man, and that super visum Corporis. He shall also enquire of the Escape of the Murderer, of Treasure Trove, Deodands, and Wreks of the Sea. He ought to deliver the Inquisition of death taken by him at the next Gaol delivery, or certifie the same into B. R. He hath power to bind over Witnesses to the next Gaol delivery in that County: Besides the Judi­cial place, he hath Office ministerial as a She­riff, viz. when there is a just exception taken to the Sheriffs, judicial Process shall be awarded to the Coroner to execute the Kings Writs.

The Sheriff put in his Challeng to have a Ve­nire fac' to the Coroners, because the Sheriff was his Master, and concludes not & issint favor­able. Yet its good, Moor. p. 470. no. 853.

The Parties being at Issue a Venire fac. was awarded to the Sheriff, and afterwards upon En­try quod vicecomes non misit berve, a Venire fac' was prayed and awarded to the Sheriff, the Plaintiff had admitted him to be a person qua­lified to make the Retorn. But per Cur', Because that being awarded upon the Roll is but as a Continuance, and there was not any Venire fac. taken forth, and its but matter of Form to make such a Continuance, It was held well enough, [Page 436] Cro. Jac. 35. Willoughby and Egerton, Cro. El. 853. Cro. Jac. 35.

Upon Challeng to the Sheriff a Venire fac. was awarded to the Coroners and retorned, and at the Nis. Prius, a Tales granted by the new She­riff, its Error, Mo. p. 356. n. 482. Morgan and Wye, it was held a manifest Error, Cro. El. 894. Corn and Paslow, and not aided by the Statute of Misconveyance of Process: For its a Mis­tryal.

Process once directed to the Coroners, shall never after in the same Cause be directed to the Sheriff, tho' the same Sheriff which first was be removed, Mor. 356. n. 422. But a Quaere is made of this in Hob. 64. Web's Case.

Demeanor of Coroners as to Outlawrys.

Outlawry was reversed, because the Names of the Coroners was not put to the Judgment, 1 Rolls Rep. 266.

In Outlawry the Judgment was Ideo per ju­dicium A. B. &c. Coronat. Utlegat' est, and saith not Coronat' Comit' praed', and for this the Outlawry reversed, 2 Rolls Rep. 82.

Coroners are Judges in Outlawries in County, Courts, 4 Rep. 72. Mitton Case, 9 Rep. 119. Lord Sanchar's Case.

The Statute of 4 Ed. 1. de Officio Coronatoris, provides that such Inquest shall be villarum proxim' adjacent. Per Cur. its not requisite to shew they are the next Vills, it shall be intended if the con­trary appear not. At the Common Law it is vil­larum adjacent. and this Statute hath no negative words, and so the Tryal at Common Law re­mains, 2 Siderfin 144. Barclay's Case.

Where a Man shall not have Averment against what the Coroner affirms upon his Examina­tion.

The Court agreed a melius inquirend. after an Office post mortem which is originally to the She­riff. But after an Inquest of a Coroner super vi­sum Corporis, &c. that he died of a Megrim, no melius inquirend' can go, the Original not being before the Sheriff, especially not until the In­quest be quasht. And there its but ad informand' Conscientiam Traversable, as Barclays Case, who drowned himself, and the Coroner refused to hear the Kings Witness; and thus in case of miscarriage and quashing the former Inquest, they will grant a new one, 1 Keb. 859. the King against Stanlack.

Coroners Inquest.

A flight found by the Coroners Inquest is fi­nal as to Forfeiture of Goods, and cannot be tryed again, Hob. p. 318.

If one is killed in a Village, and the Coroners make no Inquest, the Village must be amerced, 1 Keb. 278. Lord Buckhurst, and if there were an Inquest, it must be retorned per Certiorari; the Coroner is to Retorn his Inquisition at the next Gaol delivery, and because he did not, the Court Discharged him, and set 100 l. upon his Head, they having found it Murder, 280.

The Coroner ought to sit upon the Body of every Prisoner that dies in Prison, 3 Instit. 52, 91.

Where the Body of a Felo de se cannot be found, & trait devant les Coroners, his Goods shall be Forfeit and found before the Justices of Peace, 1 Roll. Rep. 272.

Melius Inquirend' upon the death of a Man di­rected to the Coroner and not to the Sheriff, because none but Coroners can enquire super visum Corporis. But for the Misdemeanor of the Sheriff, it may be quasht and a new one granted; the Coroner must take the Evidence in Writing, and must bring his Examination into Court up­on occasion, Mod. Rep. p. 82.

Process may be awarded against a Coroner, to come in to mend the Inquisition, or may be served with a Rule to attend to amend matters of Form, but not matterr of substance, as the Inquest found G. Felonice seipsum submers. fuit, but saith not he cast himself into the Water. But Felo­nice submersus is the Substance, Siderfin p. 209. the King and Glover. 225. vers. King and Harrison.

Inquisition before a Coroner, without saying Legal. homin. Villar. prox adjacent. but Legal. homin' Paroch. de A. yet good.

Commission to the Sheriff (in the nature of a Melius Inquirendum) to enquire of the death of a Man when it had been found before the Co­roner before is against the Statute of 28 Ed. 4. 9. But there are divers Presidents since that Sta­tute of such Commissions awarded.

The Court was moved for a Melius Inquiren­dum) to be directed to the Coroner of N. to enquire what Goods T. Felo de se died possest of, because the Inquisiton retorned did only find the Goods he was possest of in London. Per Glyn, Take it, but it must be directed to the Sheriff, because the Coroner has done his Office already, Stiles 461. Blackwell's Case, and so was Toomes Case.

The Coroner may find such a Nusance as oc­casions the death of a Man. Allen. p. 51. and the Township shall be amerced thereupon, as a breach in a Bridge whereby a Man falls into a River and was drowned.

How a Coroner shall be discharged of his Office, and what shall be a sufficient Cause to discharge him, or not, vide 5 Rep. 57. Specot's Case, 8 Rep. 41. Greisly's Case, 9 Rep. Sir George Reynell's Case.

The Mayor is Coroner in the City of London, 4 Inst. 250.

But He doth not pronounce Judgment upon Outlawry; but the Recorder, 8 Rep. City of London.

The Authority and Credit the Law gives to the Rolls and Records of the Coroner, vide supra.

Retorns upon a Capias in Process.

VIrtute istius Brevis cepi J. W. infrascriptum cujus corpus coram Justic' infrascript' ad diem & locum interius content' habeo parat' prout breve istud exigit & requirit, &c. Lib. Intr. 109. c.
R. S. infranominat' non est invent' in balliva mea, & quoad cap' J. F. infranom' mandavi J. S. ballivo Libert' de F. S. qui plenum retorn' habet omnium Brev' & execution' eorundem cui executio istius brevis totalit' pertinet faciend' extra quam Libertatem nulla execut' istius brevis inde per me fieri potest, qui quidem bal­livus mihi sic respondit quod cepit corpus praed' J. F. cujus corpus praed' R. S. coram Justiciar' dom Regis infrascript' ad diem & locum infra content' habebit, Vel sic, qui quidem ballivus null' mihi dedit respons. Lib. Intr. ibid.
VIrtute istius brevis A. B. infrascript' captus est per corpus suum & in (tali Prisona) sive Gaola adeo Languidus detent' quod corpus ejus ad diem & locum interius content' habere non possum abs (que) mortis periculo.
[Page 440]VIrtute istius brevis Certifico, quod postquam istud breve mihi liberat' fuit ad capiend' R. T. (& alios Defendentes) in isto brevi specificat' idem R. & alii infranominat' protulerunt mihi breve dom' Regis de supersed. quod huic brevi est consut' virtute cujus supersed. omnino.

These Writs usually are Retorned by the Attorneys themselves, by the consent of the Sheriff.

Nota, Upon a Capias ad respond. Tarde is no good Retorn.

Retorn' sur Capias ad satisfaciend'.

VIrtute istius brevis mihi direct' cepi corpus infra­nominat' A. B. cujus quidem corpus coram Ju­stic' infrascript' (vel coram dom' Rege) ad diem & locum infracontent' parat' habeo satisfaciend' infra­nominat' C. D. de debito & damnis infraspecificat' prout interius mihi Praecipitur, Lib. Intr. 109.

Non est inventus.

Nihil, ibid.

Quod captus est per praecept' dom' Regis.

Quod captus est super Recogn' fait in Concellar'.

Quod est in Prisona per Cap. ad sat. en Det.

[Page 441]QUod ante adventum brevis istius praed' R. D. captus fuit, &c. & in prisona, &c. detentus virtute cujusdam querelae vers. ipsum per nomen R. D. in placito' debiti super demand' 20 l. in Curia, &c. ad sectam J. G. levat'.

Retorn' de Levari fac'.

VIrtute brevis istius cepi in manus dom' Regis quoddam hospitium cum tribus Shopis (in tali loco) ipsius J. T. infrascript' quae valent per annum ultra reprisas 10 l. Et quod praedict' hospitium cum Shopis praed' salvo custod' donec aliud à vobis inde habeo in mandatum.

Retorn of Liberate.

VIrtute istius brevis (tali die & anno) liberavi L. S. infranominat' manerium infraspec' cum prat' tenend. sibi & assignat' suis ut liberum tenemen­tum suum quousque sibi de debito infrascript' una cum damnis misis & expensis quae in hac parte rationa­bilit' sustinuit plenar' satisfact' fuerit prout istud breve exigit & requirit, Lib. Intr. 598.

Retorn of a Praemunire, vid. Dalt. c. 70.

Retorn' de Recogn' extra Canc. Dalt. c. 81.

Retorn' de Supplicavit, id. ibid.

Presidents of Retorns extra Scaccarium, vide Dalt. c. 82. W. Wilkinson.

The Form of a Bond for Appearance.

NOverint universi per praesentes nos A. B. de C. in Com. Warw. gen' E. F. de L. &c. & H. T. de, &c. teneri & firmit. obligari A. B. Mil. Vic. Com. praedict. in quadragint. libris bonae & legalis monetae, &c. solvend. eidem Vicecomiti aut suo certo Attornat', &c. (as in other double Bonds.)
COnditio istius Obligationis talis est, Quod si supra Obligatus A. B. compareat personalit' coram dom' Rege (or, coram Ju­sticiariis dom' Regis) apud Westm' (à die Paschae in quindecim dies) ad respond. K. W. de placito debiti (transgress. ac etiam billae, &c. detentionis, &c.) [as in the Writ] quod tunc praesens Obligatio vacua & pro nulla ha­beatur, alioquin in suo robore permanere & vigore.

A Condition to pass an Account, to procure a Discharge for a Sheriff.

THe Condition of, &c. That if the aboveo bounden T. F. his Heirs, Executors and Ad­ministrators, do make a true and perfect Account of and for the above-named T. T. his Heirs and Executors, in the Exchequer of our Sovereign Lord the King, of, for and upon all Issues, Charges, Sum and Sums, which be or shall be charged or demanded, of or upon the said T. as late Sheriff of the said County; and do get and procure a sufficient Quietus est thereof for the said T. T. his Heirs and Executors. And more­over, do well and truly discharge, save and keep [Page 443] harmless the said T. T. his Heirs, &c. against our said Sovereign Lord the King, his Heirs and Successors, and all other person and persons, of, for and concerning the said Office of Sheriff, and all the Receipts and Charges thereof; That then, &c.

A Condition for a Bayliff of an Hundred to enter into to the Sheriff, vid. Presidents in Dalt. c. 115.

A Condition for a Gaoler to enter into, for the safe keeping of his Prisoner, vid. Dalt. ibid.

THE TABLE.

A
  • ACced [...] ad Curiam, the Nature of it, and Re­torns, p. 69,
  • Accounts of the Sheriff 427
  • Acres, where to be estimated [according to the Custom of the Country 238
  • Amercement: Where and what cases the She­riff shall be amerced 377
  • Of Appearance on Bail Bond, 92, 93
  • What Appearance to a Sheriffs Bond good 99, 110
  • Appearance of the party cures the Retorn of one that was not Sheriff, 110
  • Arrest: What Arrest is good or not, as to the manner of doing it 80
  • What is good in respect of the time of the Ar­rest 81
  • In respect of the Warrant, ( vide Warrant) 86
  • In respect of the persons Arrested, and who are priviledged, or not 82
  • Arrest after a Supersedeas 360
  • Attachment: The Nature of it 375
  • Against the Sheriff, in what cases, ibid.
  • Against others 376
  • On Attachment the Sheriff ought to Retorn the certainty of the Goods, and why ibid.
  • [Page]On Attachment of Money in the Sheriffs hand, 376
  • Assize: Retorn of the Writ 402
  • Assumpfit, and Consideration about paying Fees, What shall be godo or not 121
  • Promise to procure Goods, to be found by Inqui­sition 255
  • One part of a Promise unlawful makes all vicious ibid.
  • In Consideratin of making one especial Bayliff, a Promise to save harmless from Escapes 8, 57
  • Assumpsit for paying the Sheriffs Fees, what good, or not 422
  • Sheriffs Duty as to the Assizes and Sessions 211
  • Audita Querela: Writ of Audita Querela, as to the Form, 244
  • Where Audita Querela lies on Escape out of Exe­cution, or not ibid.
  • Outlawry pleaded to Audita Querela 245
  • Where it lies on Escape, as to Mean Process 311
  • Delivery upon a void Audita Querela, whether it be an Escape, or not 302
  • Averment against the Sheriffs Retorn, where good or not 157
B
  • BAil: The Custom of the Court as to putting in Bail 92
  • Bailing is the Act of the Court, and the Conse­quence ibid.
  • One in Execution in the Custody of the Marshal, not compellable to find Bail if another Action be brought against him. Alitèr as to the Fleet 93
  • Who to take Bail in London ibid.
  • Bail for one taken by Cap' Excommunicat▪ ib.
  • [Page] Scire fac' on the Escape of the Bail, vid. Escape
  • Scire fac' and Retorn of it against the Bail 93
  • Bail de bene esse what 95
  • The Statute of 23 H. 6. c. 10. of Bail Bonds ex­plained ibid.
  • The Form therein to be observed ibid
  • What Bond good within that Statute or not 97, 98
  • Pleadings upon that Statute 105
  • The advantage of Pleading this Statute lost by Demurrer 113
  • Of Sheriffs Retorns on Bayl Bonds 111
  • Of Sureties on Bail Bonds 103
  • Of Bail Bonds being Discharged or Assigned 114
  • The Sheriff not to take above 40 l. Bail how understood 122
  • In what Cases the Sheriff may Bail or not ibid.
  • Actions on the Case against the Sheriff, for holding to extrordinary Bail ibid.
  • Bayliffs of Hundred, their Nature and Office 43
  • Not to be prejudiced by the Non Retorn of the Sheriff ibid.
  • To take the Oath of Allegiance 44
  • Special Bayliff: What and how they stand in Eye of the Law 45
  • Bayliff of Franchises 46
  • What Bonds for appearance they may take ibid.
  • To what their Office extends not 47
  • Of their Retorns to the Sheriff 48
  • Where and in what Cases the Sheriff may enter their Franchise 49
  • Bayliff of a Franchise not to take benefit of his own Liberty 49
  • Pleadings by Bayliffs of Franchises ibid.
  • [Page]Bayliffs of Fee or Guildable, vid. Retorn 51, 52
  • Bonds Bail Bonds, vide supra
  • Other Bonds and Covenants entred in to the Sheriffs, what shall be good or not 116
  • Bond to be a true Prisoner, and the Pleading, 117
  • For Chamber Rent 121
  • Bonds or Covenants between the High-sheriff and his Officers 424
  • Baron and Feme: How the Husband is to be charged on the Conversion of the Wife, up­on a Special Verdict 303
  • Debt lies on Escape of the Wife
C.
  • Capias ad Satisfaciend' what 211
  • Against whom and for what it Lies ibid.
  • Of the Sheriffs Demeanor therein ibid.
  • Of the Retorns upon it 212
  • Ca. sa. after a Fieri fac' ibid.
  • Of Escape of one in Execution by Ca. sa: vid. tit. Escape. 10
  • Cap' ad Sat. against the Kings Debtor in Exe­cution 212
  • Retorn on Fieri fac', Quod▪ Clericus est benefici­atus 114, 211
  • Where a Ca. sa. shall be after an Elegit 252
  • Of the Retorn of Clericus Benificiat' 401, 404
  • Courts: Diversity where a Court has Jurisdicti­on of the Cause, and where not 308
  • Cause of Action must be alledged to arise in an Inferior Jurisdiction 309
  • Where and how the Jurisdiction ought to be set forth or not 175
  • Where one is arrested in an Infetior Court, when Cause of Action does not arise there, Action lies against him that levied the Plaint [Page] and not against the Officer, 363
  • Justification by Process out of an Inferior Court of Record, how to be pleaded 364
  • Retorns from inferiour Courts, vid. Retorn
  • County: When the Kingdom divided into Counties 2
  • Notatio Nominis. Viscounts of two sorts, and the Original 2, 3
  • County Court incident to the Office of Sheriff, the Style of it, who are Judges 53
  • Jurisdiction of it, 54
  • As to the Summs it holds Plea of 55
  • As to the time ibid.
  • As to the place 96
  • The Process in the County Court ibid.
  • Of the County Clark 58
  • Colore Officij how to be taken 104
  • Challenge. The several sorts 184
  • Whats a good Cause of Challeng or not 185
  • Difference between a Covenant and a Bond
  • Covenants entred in to the Sheriff 424
  • Of Coroners: How chosen and their Demeanor, &c. 430
  • Action on the Case: Against the Sheriff on Es­capes 382
  • Against the Sheriff for holding to unreasonable Bail 381
  • For imbesiling an Exigent ibid.
  • For entring into a Franchise or Corporation which had Retorna Brevium ibid.
  • For not delivering a Super sedeas to the New Sheriff ibid.
  • Against an Under-sheriff, for concealing a Writ 382
  • Against the Sheriffs Deputy for Substracting a Writ ibid.
  • For refusing sufficient Bail 383
  • [Page]For not bringing Mony into Court levied by Fieri fac' 383
  • Pro vicount' if the Conusee sue an Extent, and re­fuse a Liberate, to the intent to defraud him of his Fees 217
  • Vide Retorn, Vide Rescous
D.
  • THE Form and Manner of the Sheriffs Discharge 20, 23
  • Delivery of Prisoners, and of the Old and New Sheriff 21, 22
  • Delivery of Prisoners, and Writs by the Old Sheriff to the New, and how to be made ibid.
  • Till what time the Old Sheriff or his Officers may act 20, 25
  • The Form of the Indenture for setting over Prisoners 24
  • What Acts may or must the Old Sheriff do after he is discharged 25, 26
  • What remedy against him for a Misdemeanor in his Office after his Office 26
  • Of the Sale of Goods on Fieri fac' after the Old Sheriffs Discharge ibid.
  • The Form of Pleading, the Removal of one Sheriff, and the Election of another, ibid.
  • Sheriffs Deputy 27, 33
  • Pleading by him ibid.
  • Of Rescue from him ibid.
  • Distringas Juratores 167
  • Declaration in Action on the Case for the She­riffs Fraudulent omission of Execution of Goods 219
  • The Course of Declaring in B. C.
  • Declaration on Escape or Cap. Utlegat' 312, 313
  • Daclaration in Action on Escape, vid. Escape [Page] Where and in what Cases the Sheriffs Retorn of a Devastravit shall be good, and the late pra­ctice in Cases 190
  • The Party may Discharge himself of a Deva­stavit by Plea, That the Sheriff levied the Money by Fieri fac' 193
  • Sheriffs Demeanor in a Writ of Dower 384
E,
  • ELegit. The nature of it as to Land and Goods 247
  • What things may be extended or not 248
  • Inquisition on Elegit, when void or not 249
  • Where a new Elegit or re-extent may ibid.
  • Be or not 254, 256
  • Of Capias ad Sat. after an Elegit. 255
  • The Sheriff not to deliver a Lease at another value than the Jury find it 250
  • The Sheriff to set out the Moieties distinctly ibid.
  • On a second Elegit, the Sheriff can only deliver a Moiety of a Moiety ibid.
  • The Sheriff to deliver the Moieties, and not the Jury 253
  • There must be an Inquisition, and the Sheriff himself cannot extend it 255
  • Actual possession not to be delivered on Elegit. only to enable one to bring Eject' Firme 251
  • The Retorns on Elegit, what are good or not 252
  • The Entry of the Retorn of Elegit on the Roll ibid.
  • Extent by the Bayliff of a Liberty and Inquisi­tion by him 253
  • Of Elegits and Testatums into London, Lancashire and other Counties 258
  • Extent of a Term, vid. Fieri fac'
  • [Page]Serjeant at Mace may execute an Elegit.
  • Escape: Not to be judged strictly 7
  • Diversities of Escapes 295
  • What shall be said an Escape of a Prisoner out of Execution in Debt or not 297
  • On the Sheriffs removing the Prisoner, what fa­vour shall a mount to an Escape or not 298
  • Debt lies on Escape of the Wife 303
  • Of Escapes in respect of the Committitur entred ibid:
  • Scire fac' on the Escape of Bail 304
  • Execution served upon one that is Prisoner for Felony and then Escape 302
  • Of Escapes as to the Old and New Sheriff 305, 306
  • What thing or act shall excuse the Sheriff from an Escapes▪ 307
  • Escape on Cap. Utlegat. and the Declaration 212, 313, 315
  • How far Erroneous Process shall excuse an Escape in the Sheriff or not 308
  • Where the Escape of one shall be the discharge [...] of another or not 311
  • Escape of one in Joynt Execution 312
  • Variance between the Teste of the Writ, and finding by the Jury in Escape 317
  • Laying Execution and Declaration in Escapes 328
  • Declaration as to the delivery of the Old Sheriff in Escape 332
  • Declaration on Escape in Inferiors Courts, 334
  • Where the Sheriff shall have an Action against the Prisoner that escaped, and how to declare against him 337
  • Escape brought after the Plaintiff in the first Action acknowledged Satisfaction 339, 345
  • Information against the Sheriff for an Escape
  • Pleadings on Escape: Fresh persuit 340, 341
  • Permisit ire ad Largum 325
  • [Page]Acknowledgment of Satisfaction pleaded 345
  • Stat. Limitations pleaded ibid.
  • Supersedeas, Protection pleaded 249
  • Nula tiel Record 346
  • Of Escape being pleaded in Bar 351
  • Escape by permission no Plea ibid.
  • By consent of the Plaintiff a good Plea, 346
  • Bar by voluntary Escape, ill as to the Party Plaintiff 326
  • Discharge by the Gaoler, is not a good Discharge, tho' formerly adjudged otherwise ibid.
  • Issue, Evidence, Verdict in Escape, what good or not 352
  • Escape brought against Baron and Feme 356
  • Venue in Escape 350
  • Debt or Case against the Sheriff for Escape out of Execution 315
  • For Escape on Mean Process 314
  • Who shall have Action of Debt on Escape, and to whom it shall be said an Escape at Ele­ction 316
  • Executor shall have Action on the Case against the Shereiff for Escape out of Execu­tion, or Mean Process, and how to be brought 319
  • Action on the Case, if it lies against the Under­sheriff for Escape 322
  • Where against the Bayliff of a Franchise 323
  • Not against the Sheriff or Gaolers Executors, ib.
  • Against a Serjeant in London on Mean Process 324
  • Where Escape shall not be a Discharge of Exe­cution, but that he may be retaken again or not 324
  • if one be in Prison and the Marshal die, and the Prisoner Escape, there is no remedy, but to take him again 325
  • If the Prisoner Rescue himself, the Party may [Page] sue the Sheriff, or begin de novo upon the Judgment 327
  • Of Escape of Felons 359
  • Where Executor on Non-suit shall not pay Costs ibid.
  • Execution: Where one shall be said to be in Execution, or not without prayer of the Party 203, 204
  • Where the Court may commit in Execution, tho' the Record be removed 205
  • How and in what Cases the Sheriff may break open an House to do Execution ibid.
  • To what Sheriff of what place or County shall Execution be awarded 209
  • Execution by the Sheriff after a Supersedeas 242, 243
  • Retorn of a Writ of Elegit. 402
F.
  • What Fees the Sheriff is to take 415
  • Sheriffs Fees by whom to be paid 417
  • Poundage allowed the Sheriff out of a Fine on Conviction on Indictment of Barretry, levied as a Fieri fac', and how, and by whom al­lowed ibid.
  • What security the Sheriff may take for Fees or not ibid.
  • What remedy shall the Sheriff have for his Fees 419
  • VVhere and in what Action the Sheriff shall not take Fees ibid.
  • VVhat shall be said Extortions in Sheriffs and Gaolers, and how punishable 420
  • Consideration in Assumpsit for paying Fees 422
  • Fieri fac' what 215
  • The Form of the Retorn of a Fieri fac' 227
  • Whether a Fieri fac' on a Judgment in the Kings Bench shall go into Wales 260
  • [Page]Property of the Goods not in the Plaintiff before Liberate 260
  • VVhat Goods, and of whom shall be taken in Execution by Fieri fac. 261
  • What Action the Sheriff shall have for the Torti­ous taking away of Goods after he has seised them 217
  • Where and what Remedy against the Sheriff for the Money to the value of the Goods taken in Execution 219
  • The Sheriff cannot deliver Goods in Satisfaction of the Debt 221
  • Sheriff sells the Goods of J. S. a Stranger on Fieri fac. ibid.
  • What is the Sheriffs best way to save themselves from seising and selling the Goods of a Stranger in Execution ibid.
  • Where the Plaintiff shall have a new Fieri fac. or not 222
  • Of the Sheriffs selling Goods on the Fieri fac. and of the Venditioni exponas 223
  • What shall be a good Retorn of the Sheriff on a Fieri fac' or not 225
  • The Form of the Retorn of a Fieri fac. 227
  • Where it shall be in the Election of the Sheriff on a Fieri fac. to sell a Term or deliver it in extent 231
  • Difference between the extent of a Term on Elegit, and a sale by Fieri fac. 232
  • What is the safest way for the Sheriff to sell a Term ibid.
  • What Term is not extendible 233
  • Force: The Sheriffs Office about removing it, &c. ibid.
  • Fraud not to be intended except it be exresly found ibid.
  • Fresh persuit: What shall be a sufficient Fresh persuit, and where upon Fresh persuit he may [Page] be retaken 341, 342
  • Gaoler makes Fresh persuit, and before he is taken the Prisoner dies, yet Action lies against the Gaoler 342
  • Fresh persuit pleaded, and how 343
  • What is good Evidence of Fresh persuit or not 353
  • Franchise: Vid. Bayliff. vide Retorn
  • Action on the Case lies against a Sheriff for en­tring a Franchise, or Corporation which had Retorna Brevium 381
G.
  • Gaols, Prisons: To whom they belong 195
  • The place where to be kept ibid.
  • Sheriff of London's Prison 196
  • The Sheriffs Demeanor towards Prisoners 198
  • Payment of a Debt of one in Execution to a Gaoler, if Good 201
  • Prisoner not to be delivered till he pay his due Fees ibid.
H.
  • Habeas Corpus Jurat. 167
  • Hebeas Corpus, the several sorts and their Re­torns 169
  • Who to pay the charge of Habeas Corpus 173
  • Forms of the Retorns of Habeas Corpus 174
  • Habere fac. Possession, vid. Possession
I
  • JUsticies; the Nature of it, and the Retorn 70
  • Jurors of two sorts 175
  • Retorns of Jurors 176
  • [Page]Who are exempt from Juries 177
  • And how they shall be discharged 178
  • Their remedy for being Impannelled ibid.
  • Of levying Issues, and when 180
  • Supersedeas restrains a Sheriff from Retorning a Jury 182
  • What Estate Jurors must have 183
  • Jeofails 161
  • Where Trespass and False Imprisonment lies against the Sheriff, or what acts of the Sheriffs, Bayliffs, &c. shall amount to a false Imprison­ment 360, 361
  • Inquisition on Elegit, vid. Elegit.
  • Information against the Sheriff for Escape 343
K
  • THe Sheriffs Office about Execution for the King's Debt 259
  • The King cannot License a Prisoner to go at Large
L
  • LAtitat; the Nature of it
  • Statute of Limitations pleaded in Escape 345
  • —pleaded to Action on the Case, for not bringing Mony into Court levied by Fi. fac.
  • London: Customs as to Officers, Courts 409
  • Sheriffs of London, their Courts their Prison
  • How to lay the Custom of the Sheriffs Court in Pleading 410
  • Difference of the Entries in the Mayors Court and Sheriffs Court 411
  • Of Entring Actions in the Compter 412
  • Liberate: Property of the Goods not in the Plaintiff before Liberate
N
  • NOn obstante: Dispensation 10
  • Where Notice ought to be specially alledg­ed
  • [Page]Notice whose Goods they are in Execution 111
  • Notice of Executions to the New Sheriff 21
O
  • THe Form of the Sheriffs Oath 15
  • Before whom, and how to be taken ibid.
  • Under-sheriff and Bayliffs Oath 30, 31
  • One may be Officer and Judge diversis respectibus 30
  • Outlawry pleaded in Bar to Audita Querela
P
  • PArliament: The Sheriffs Office as to Electing Knights and Burgesses of Parliament 406
  • The Form of the Indenture for Knights and Burgesses ibid.
  • The Form of the Sheriffs Retorn of the Writ, for Electing Parliament Men ib.
  • Partition: The Sheriffs demeanor in a Writ of Partition 390
  • Pleadings: Pleading to Audita Querela 342
  • Pleading on the Stat. 23 H. 6. c. 10. by the Prisoner, or by the Sheriff 105
  • Pleadings by Bayliffs of Franchises 49
  • Justification by Process out of a [...] Inferior Court of Record, how to be pleaded, vid. supr.
  • The Form of Pleading the removing of one Sheriff, and the Election of another 23
  • Pleading by the Sheriffs Deputy 33
  • Pleading of the Stat. of Limitations in Escape
  • Pleading by the Sheriffs Bayliffs, Gaolers, and how Justification must be in Action of Trespass or False Imprisonment, by Process, Warrant, &c. and how to be pleaded as to the time of taking out the Writ, place Traverse 361, 362, 363
  • Justification by Execution, how to be pleaded 370
  • Pleading in Trover on Fi. fac. and how ibid.
  • Pleading to Trespass, by taking Goods by Reco­very 363
  • Pleadings in Escape, vid. Escape.
  • [Page]Pleading the Jurisdiction of the Court, and how, vid. supra.
  • Pleading in Replevin ( vide Replevin) 59
  • Piedges, vid. Replevin.
  • Posse Comitatus, sparsim.
  • Possession: In Habere fac' possession' the Sheriff is to make Execution of the right thing at his peril 236
  • Trespass against the Sheriff for wrong Executing possession 237
  • Action on the Case against the Sheriff, for delivering more Acres than are in the Writ ibid.
  • Where possession of some in the name of all, is good, or not ibid.
  • Riotous possession delivered by the Under-sheriff, how to be enquired of 238
  • For Ouster after possession delivered, what Re­medy 239
  • Where the Plaintiff shall have a new Habere fac' possession' 240
  • Of the Retorn of Habere fac' possess. and the Form 241
  • Process: Original Process in real and personal Acti­ons, and the Forms of the Retorns 76
  • Of Mean Process 80
  • Priviledge from Arrests, vide Arrests.
  • Prisons, vide Gaols.
Q
  • THe Sheriffs demeanor in a Quare Impedit 403
R
  • REcognisance, vide Statute.
  • Recordare fac' loquelam 61
  • Replevin: The several sorts 59
  • The manner of Replevying 60
  • Retorno Habendo 61
  • Retorns in Replevin 61, 62, 63
  • —property pleaded 63
  • [Page] Gager deliverance 64
  • Two sorts of Pledges in Replevin ibid.
  • The Form of a Precept in Replevin 67
  • The Form of the Bond for Security, 68
  • Rescous: Where and in what Cases Action lies against the Sheriff for a Rescous, or not 277
  • Where the Sheriff makes himself chargable by his Retorn of Rescous 226
  • Action on the Case lies against the party that Res­coused, and against the Sheriff 274
  • Remedy against the Rescouser by Indictment, and how to be laid 278
  • Of Retorns of Rescous, what are good, or not 280
  • Rescue from the Bayliff of a Liberty, how to be Retorned 287
  • Of laying the Action and Declaration in Resc. 288
  • Difference between Actions on the Case, and Re­torns and Indictments of Rescous 151
  • Diversity between pleading Rescous en Det on Escape, and Action on the Case in Escape 290
  • Pleading in Rescous 292
  • Venue in Rescous 293
  • Where a man may rescue himself, and where not ibid.
  • New Execution upon a Rescous
  • Verdict on Rescous before the Day laid, or after, good, if before the Suit commenced 293
  • Rescue pleaded by the Bayliff of a Liberty 50
  • Retorns of Writs: When may be made 124
  • General Rules of Retorns 125
  • Languidus in Prisona 129
  • What must come in by way of Retorn, and not by way of Surmize ibid.
  • What Writs must be Retorned, and what need not 129
  • What shall be a good Retorn or not, in respect of the person Retorning 131
  • Of the new Sheriffs retorning the Writ, executed [Page] in the time of the old Sheriff 131
  • What Retorn shall be good in respect of the Form, or not 135
  • Retorn void for uncertainty or repugnancy 137
  • What shall excuse the Sheriff for not Retorning Writs 140
  • What shall be a good Retorn against the Admit­tance of the party 139
  • How Retorns must be made if Supersedeas comes to the Sheriff 141
  • Retorns from Inferiour Courts 140
  • Amendment of Sheriffs Retorns 141
  • What Action, Process or Appearance shall be good before the Retorn of the Writ 142
  • Penalty of the Sheriff by the Court, for not Retorning 143
  • Actions brought for a False Retorn 144, 145
  • Against the Bayliff of a Franchise, for a False Retorn 148
  • The Sheriffs Duty, as to the Retorns of Bayliff of Franchises ibid.
  • The Sheriffs submission to a Fine, no Conclusion to the parties to bring a False Retorn 149
  • Action on the Case, and not Debt, for a False Re­torn 159
  • Where the Action to be brought, and how to Declare ibid.
  • Action against the old Sheriff for a False Ret' 152
  • Action against the Sheriff, for not Retorning the Writ 154
  • If it may be against the Bayliff-Errant ibid.
  • The Sheriff not to file the Retorn, depending the Action on the Case against him 156
  • Of Laying the Action, and Decla [...]ation for not Retorning ibid.
  • Where a man may Traverse or Aver against the Sheriffs Retorn, or not 157
  • A Retorn not amendable after it is filed ib.
  • [Page]Of the Retorn of Cepi corpus & parat' habeo when the party is bailed, and the reason of it 145
  • Vide more of Retorns under their proper Titles, as Scire facias, &c.
  • Restitution: Of Goods taken in Execution re­stored in specie 224
  • Of Restitution of Lands or Goods seised by the Sheriff after Judgment Reversed 228
  • —and the Form of the Retorn in such case ib.
  • On sale of a Term, where the Term shall be restored, or not 228
S
  • SCire facias: For the Sheriff, upon a Retorn of a Nihil of the Pledges 89
  • Scire fac', and Retorn against the Bail 93
  • Scire fac' de bonis propriis, not to be awarded on surmize of the party, but on the Retorn of the Sheriff upon a Devastavit 192
  • Scire fac' to the Sheriff of London or Middlesex, on a Recognizance for Bail
  • Scire fac' against the old Sheriff, to pay the Money levied in Execution 220
  • Of Retorns of Scire fac' what are good or not 9, 268
  • Sheriffs: In Ancient times how Eligible, and how at this day 3
  • His power and priviledge 4
  • Favoured in the Execution of his Office 6
  • His Office not apportionable ibid.
  • Not punishable for executing Erroneous Process 7
  • Fine for Nonassistance of the Sheriff 8
  • His power to break open Houses, vid. Execution 9
  • In what cases his Officers are excused from do­ing wrong ibid.
  • In what things his Power is restrained 10
  • Not to be chosen a Parliament man ibid.
  • Not to serve above one year ibid.
  • The Sheriffs Power in another County 11
  • [Page]Of his Execution of Felons 12
  • What he must do at the entrance into his Office 13
  • Vide Oath 14
  • The Cities and Towns of England which have Sheriffs, and how many 19
  • How the Sheriffs Office may be determined before his year is out 27
  • In what Cases the High sheriff must execute the Office in person 30
  • Sheriff not to dispute the Jurisdiction of the Court
  • Of the Sheriffs of London and Middlesex, v. London.
  • Sheriffs Office about the Sessions of the Peace 408
  • Seisin of Rent or Common, how to be delivered in Execution 238
  • Supersedeas: What amounts to a Supersedeas 241
  • Where a Writ of Error is a Supersedeas or not, and when ibid.
  • Of Execution by the Sheriff after a Supersed. 243
  • Where a Supersedeas shall stay the sale of Goods, or not ibid.
  • Statute-Merchant, &c. The Writ of Execution on a Statute-Merchant and a Statute-Staple, and the difference 260
  • The manner of Execution on a Statute-Merchant, Staple, or Recognizance ibid.
  • Difference between the proceedings on a Sta­tute-Staple and Statute-Merchant 263, 264
  • Form of the Retorn on a Recogn' or Stat. ibid.
T
  • TRespass against the Sheriff, for wrong Exe­cuting possession 273
  • Trespass and false Imprisonment, v. Imprisonment.
  • Tourn of the Sheriff: Jurisdisdiction, &c. 71, 72
  • Inquisition taken in the Sheriffs Tourn, 72
  • Pleadings as to the Tourn 75
  • [Page]Who shall be Amerced for not coming to the Sheriffs Tourn ibid.
  • Trials: By the Sheriffs Certificate, or by the Re­cord 42
  • Trial shall be where the Cause of Action ariseth 309
V
  • VEnditioni exponas, (v. Fieri fac▪ & Supersed.) 223
  • Sh [...]riffs demeanor in a Writ of De Ventre [...] Inspiciend. 388
  • Sheriffs demeanor in a Vi Laica removenda 209
  • Ven [...]re fac. and what Retorn thereof shall be good or not 392
  • Amendment of Venire 165
  • Under-sheriff: His Nature, Antiquity, Office 28
  • What Bonds, Covenants, &c. are good between the High-sheriff and Under-sheriff, or not, and the Pleadings 33
  • What Acts the Under-sheriff, Bayliff, Gaoler, and the High-sheriff are answerable for, and the Rule of Respondeat Superior 35, 36
W
  • WIthernam 62, 65
  • Warrant: What Arrest shall be justified by force of a VVarrant▪ 86
  • VVhere the Bayliff must shew his VVarrant, and when 87
  • Writ of Enquiry of Damages: By whom to be Executed or not 188
  • The time of Executing it ibid.
  • The Form of the Retorn 189
  • The Sheriffs Office in a VVrit of Enquiry of Waste 394
  • The View; how the Enquiry to be made ibid.
  • Of the Retorn, and of Damages in Waste, and the Writ to levy them, to whom to be directed 396
  • VVrit of Estrepement; where it lies, and the She­riffs Office about it 398
FINIS.

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.