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 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 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 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 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 â—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
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 it s 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 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 't is 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.
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 Vnder-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 Shâ—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
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 Deâ—lâ—â—e to the Fleet on Judgment Declaration is That the Defendant Sir Jeremy Whitchcâ—â—t was seised and granted the Office of Wardâ—n of the Fleet for three Lives to Duckenfield who 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. Gawdâ—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 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 Trialâ— 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 Under-sheriff 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
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 in the name of his Office and the Condition express the time and place of his Appearance and at whose Suit it s 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 it s 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 It s 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 it s 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
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 Supersâ—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 Wâ—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 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 Courâ— 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 Reâ—orn The Defendant pleaded the Statute of Limitations 21 Jac. It s 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 it s 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.
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 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 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 â—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 it s no Escape if â—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
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 Under-sheriffs 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 Under-sheriff 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 Under-sheriffs and Bayliffs Errants within the County 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 Under-sheriff The Nature of an Under-sheriff 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 High-sheriff may execute the Office of Under-sheriff 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 Eâ— 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 Under-sheriff 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
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 it s 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 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 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 it s 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 Non-suit 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 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 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 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 above-bounden 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. 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 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
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 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 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 't is 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 't is 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 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
Anders 157. The Sheriff is Judge of the Sufficiency and it s 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 it s 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 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
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 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 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 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
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 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 It s 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 ' 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
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 it s 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 it s 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 it s 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 â—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 giveâ— 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 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 it s 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 Coâ—â—t and Fineable but it s 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 Non-appearance 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 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 it s 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 it s 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 Richâ—â—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.
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 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 Quousque 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 â—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 â—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 't is 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 Actionâ— 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. Hollâ—â—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 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 â— 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. it s 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 Ter-tenants not named for he is not Omniscient And tho' the Sheriff retorn that such are Ter-tenants 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 〈◊〉 â—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
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 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 piece-meal 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 â— 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 Comâ—â—â—tur is made in the Book of the Office its Goâ—â— 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
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 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 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 ' it s 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 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
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 ' it s 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 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 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 Joynâ— 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 bâ— 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 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
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 it s naught upon Demurrer but when the Defendant Pâ—acâ— 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 â—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 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 absqueâ—â—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 specialâ—â— 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 it s 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
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 â—to his Bayliff to do Execution Afterwards a Supersedeas 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 Under-sheriff 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 Bulstr 3. 96 97. Withers versus Henly Under-sheriff 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
12 Ed. 4. 2. contra And if a Woman be dowabâ—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. It s 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. it s good enough and when he saith in the end he delivered 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. It s 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 formaâ—â— Statuti extend far Quare For the Certiorari was not well Retorned in B. R. Stiles Rep. p. 67. Tâ—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
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 Under-sheriff 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 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 â— 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. Sâ—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. â— 669. Sullyard and Stamp No Fee is due to the Sheriff for Executing a Cap. Utlag Cap. Utlegat either for VVarrant to Execute iâ— or for the Retorn of it Sheriff took 200 l. to 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 it s no Extortion Co. 1 Insâ— 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 Shâ—riff oâ— 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 it s 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 It s 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 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 Fâ—â—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 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 Straâ—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 procurâ— 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. it s 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 High-sheriff Difference between a Coâ—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 Under-sheriff 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 Gennâ—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 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 it s 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
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 Statâ—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. Sâ—râ—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 sâ— 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 VVinchâ—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 â— Rolls Abr. 668. Fox and Shepard denies it not and the Venire fac ' is awarded to the Coroners It s well awarded For tho' none of the Defendants may challeng the Array for that the Sheriff is of Affinity with 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 It s 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 it s but matter of Form to make such a Continuance It was held well enough 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 it s a Mis-tryal 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. it s 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 it s 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