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land_n	king_n	let_v	time_n	1,504	5	3.4958	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34174	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 vnder-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, americament : 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.		1696 (1696)	Wing C5653; ESTC R1060	279,424	488

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 YOV 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 Vniversity of Oxford and their Servants from injuries and violences Ye shall keep and defend by all your Strength and Power and the Peace in the said Vniversity 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 Vniversity for to punish the disturbers and breakers of the Peace there after the Priviledges and Statutes of the said Vniversity 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 Vniversity And that ye shall receive all such Oaths of your Vnder-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 Vniversity 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

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 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 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

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

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 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 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 Vnder 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 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

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 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 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 Non-appearance 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

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. It s 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. It s 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 it s 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 it s 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 it s 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

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 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 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 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 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

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 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

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 't is 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 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

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 Joynt-tenant 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 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 Re-extent 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 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 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