512. Palmer and Potter If a Venire fac ' comes to the Sheriff in a Against the Sheriff for a Retorn by one who is nor Bayliff of a Franchise Quare impedit and the Sheriff command the Bayliff of the City of C. to retorn the Pannel who does it accordingly where he had not any Warrant to do it not being Bayliff of a Franchise whereby the Pannel is quasht The Plaintiff for this default in the Sheriff and for his Damages shall have an Action on the Case 38 Assize 13. The Sheriff upon a Fieri facias against J. S. Against the Sheriff and not against the Bayliff makes a Warrant to J. S. to execute as his Bayliff and he does it and afterwards the Sheriff makes a False Retorn viz. that the Writ came Tardé c. by which he is a Trespasser ab initio yet it amkes not the Bayliff a Trespasser 2 Rol. Abr. 562. Parkes and Mosse It was the Opinion of all the Judges in the Case of Fawces and Cotton That the Sheriffs submission to a Fine is no Conclusion to the parties grieved to bring their Actian for the false Retorn of the Sheriff if it were so Sir Thomas Jones p. 39. In retorn on Elegit the Sheriff Retorns That Case and not Debt he had appraised the Goods in specie to 40 l. and extended such Lands and delivered them to the Plaintiff Ubi revera he never delivered them to the Plaintiff Action of Debt lies not in this Case but Action on the Case for it is no Debt in the hands of the Sheriff Cro. Jac. 566. Coryton against Thomas And it s not like to Pyke's Case 14 Jac. which was the Sheriff on a Scire fac ' retorned That he had sold the Goods for so much Money and delivered the Money to the Plaintiff and the Plaintiff thereupon averring that he had not the Money maintained an Action of Debt For there the Sheriff confessed by his Retorn That he had sold the Goods and delivered the Money but here it is not retorned that he medled with the Goods or the value of them so as there is not any Certainty to charge him Pyke's Case 14 Jac. Where the Action is to be brought Action for a False Retorn may be brought in the County where this was or in Middlesex where the Record is Cro. Jac. 532. Parkhurst and Powell So Escape at D. in Wales and the Retorn was Non est Inventus and it was tryed at Westminster the False Retorn being made at Westminster which is the cause of the Action 2 Keb. 362. Mancer and Smith If a Sheriff on Cap ' Utlagat ' will not arrest the party but retorn Non est Inventus an Action may be brought against him in the County where he received the Writ or in Middlesex where the Record of that False Retorn is at Election Hob. 209. Siderfin p. 218 219. Russel's Case A Doubt was Whether Action on the Case for a False retorn on Elegit lies in the County where the retorn of the Exigent was i. e. in Middlesex or where the Land lies And the Court inclined that it lay most properly in Middlesex Winch. p. 100. Sheir against Sir Francis Glover One brings Debt against B. Sheriff of the County Palatine of Lancaster and sues him to Outlawry on Mesn Process and had a Capias directed to the Chancery of the County Palatine who make a Precept to the Coroners of the County being Six to take his Body and have him before the Justices of the Court of Common Bench at VVestminster one of the Coroners being in sight of him and having a fair opportunity to arrest him does it not but they all retorn Non est inventus The Plaintiff hereupon brings his Action against the Coroners in Middlesex And the Court inclined that the Action is well brought in Middlesex because the Plaintiffs Damages arise here by not having the Body here at the Day Bulmer's Case Rep. and Dyer 159. The Chancery retorns to the Court the same Coroner Answer that the Coroners return to him so that the False Retorn is the cause of prejudice and the other things are but Arguments to prove it And the Court conceived an Action would not lye against one Coroner no more than against one Sheriff of London York c. Mod. Rep. 198. Naylor and Sharpley Of Declarations in Actions for False Retorns In Pigot's Case it was alledged for Error that the Declaration was naught 1. The Bond was made for 200 l. dared Process before the Bond made 29 Aug. 13 Jac. and this was before the Bond made yet being retornable in Michaelmas Term and the Latitat upon it after the Bond its sufficient to maintain the Action and the Process always bears Teste the last day of the Term before 2. The Declaration is The Sheriffs Bayliffs It s not shewed the Defendant did not appear arrest the party and the Sheriff falsly retorned Non est inventus It was alledged for Error that the Declaration was not good because he doth not shew that the Bayliffs delivered the Bond to the Sheriff which they had taken for his Appearance nor is it shewed that the Defendant did not appear Sed non allocatur For these serve but for aggravation of Damages and are supplied by the Verdict Cro. Jac. 561. Pigot and Rogers Fieri fac ' for Debt was delivered to the Sheriffs of N. who executed it after which the Sheriffs were discharged of their Office and new ones elected The old Sheriffs redeliver to the party his Goods taken in Execution and indorse Nulla Action against the old Sheriffs bona on the Writ of Fieri fac ' and deliver it to the new Sheriffs so Indorsed And an Action on the Case was brought against the old Sheriffs for this False Retorn and Judgment pro Quer ' And these Exceptions were taken 1. The Plaintiff in his Declaration does not say that the old Sheriffs did retorn Nulla bona but only that they did indorse Nulla bona which is no Retorn 2. He saith not they delivered this Writ thus indorsed to be retorned i. e. by Indenture 3. It appears not whether any Retorn of the Tho' it appear not that any retorn of the contrary was made by the old Sheriffs Writ were made by the old Sheriffs or the new Per Glyn Chief Justice He conceived it to be well and according to the course in that kind For the old Sheriffs to make the Retorn and to deliver the Writ over by Indenture to the new Sheriffs and here was a Verdict And a Retorn is not properly a Retorn till it be filed here yet it is the Retorn of the Sheriff in the County where he is Sheriff and yet it seems Judgment was reversed Quaere Style p. 474. Toft and Day Action on the Case on a False Retorn of Non est inventus by the Sheriff of Galloway in Ireland It was averred that the Sheriff at the time
a Rescous to be out of the hands of the Deputy Bayliff notwithstanding Dyer 7. El. 241. And the Declaration was held good that he sued an Alias Capias without mentioning a Latitat before this Arrest was made by the Deputy Bayliff of Newark But the main Question was Because it doth not appear that the Bayliff had a Power in his Patent to make a Deputy Bayliff No Escape upon a Tortious Arrest The Action is brought in Suffolk against the Sheriff of Suffolk for Arresting the Defendant in the first Action upon a Capias Utlegat ' and suffering him to Escape and the Defendant in the first Action is named of S. in Com' Norfolk and the Arrest is supposed apud S. praed ' so the Arrest is supposed in the County of Norfolk and then it is Tortious and there is not any Escape thereon Per Curiam it s an incurable Error Cro. Eliz. 887. Eden and Floyd In Action or Case on a Rescous The Plaintiff Declaration of Arrest at L. and rescue at W. the same day being 200 miles distant yet not Error declares that A. was indebted to him by Obligation of 20 l. and that he Sued a Writ against him directed to the Sheriff of Cornwal to take A. c. and that the Sheriff 1 Oct. 6. Car. Arrested him at L. in Com' Cornub ' and after the Defendant at Westminster the praed ' 1 die Octob. rescued him out of the Custody of the Sheriff and on non culp ' Verdict and Judgment vers Quer ' he brought Error and Assigned this for Error for that it was impossible he should be arrested at L. and the same day be rescued at Westm ' 200 Miles distant yet the Court will not intend it to be impossible But however see what Reasons the Plaintiff shall have to assign Error on his own Declaration 1 Rolls Ab. 523. Kendal and Kendal Trespass and Assault laid and tried in Somersetshire the Defendant justified by Warrant to the Sheriff of Dorset and that the Plaintiff endeavoured to rescue himself and Issue de injuria sua propria Gold after Verdict prayed Judgment because within the words of 16 and 17 Car. 2. c. 8. there being three Judgments in the Point Wise and Adderly in C. B. Trin. 26 Car. 2. Croft and Tryal shall be where the cause of Action ariseth Winter and Croft and Bays But the Court were not satisfied with these Judgments and resolved that the Statute intended the Tryal where the cause of Action ariseth But there was a Replead ' because the Defendant Traversed absque hâ—c that he was Guilty aliter vel alio modo The reply was he was Guilty aliter alio modo which was a wild Issue 3 Keb. 552 612 Masters and Wood. Pleading In Action on the Case on Escape upon mean Diversity between pleading Rescous in Debt on Escape Averment Process Defendant Pleads a Rescous ever since 6 Car. 1. It hath been held a good Plea Per Cur ' If it be retorned it s a good Plea and it need not be averred in the Plea that it was retorned But in Debt on Escape it s no Plea 3 Keb. 513. Hill and Mountague Bayliff of West In Action on the Case for a Rescous one may If not Guilty may be pleaded to the Sheriffs Retorn of Rescous Traverse c. but Quaere if not Guilty may be pleaded to the Sheriffs Retorn of a Rescous 1 Keb. 258. Rest entr ' 580. le Roy versus Mayor of Hereford Scire fac ' to have Execution of a Judgment in Debt Defendant Pleads That at another time the Plaintiff had sued Execution by Capias ad satisfaciâ—nd ' and that he was taken thereupon Plaintiff replies True it is he sued a Ca. sa and the Defendant was taken thereupon but he presently rescued himself and escaped Replication is good As there is no cause for the Defendant to to have Audit ' Querela when he is escaped and taken again unless it be for a voluntary permission by the Sheriff so there is not any bar for the Plaintiff to have new Execution And tho' it s no good Retorn on a Ca. sa that the Defendant rescued himself for the Sheriff at his own peril ought to have kept him nor any Plea in Debt on Escape yet the Party himself shall never take advantage of his own Tortious Act. And Scire fac ' after the year is well maintainable Cro. Car. 240 255. Robinson and Cleyton Venue Verdict Action on the Case on Rescous is out of the Common Rules of the Court to alter the Venue But it s in the discretion of the Court on circumstances to alter it as Action brought against a Bankrupt may be brought in the County or here where the Commission is awardeâ— Where a Man may lawfully rescue himself 1 Keb. 346. Where a Man may rescue him self and where not There is a difference between a Warrant of Record and a Warrant or Authority in Law for if a Capias be awarded to a Sheriff to Arrest a Man for Felony albeit the Party be innocent yet cannot he make Rescous But if the Sheriff will by Authority which the Law gives him Arrest any Man for Felony who is not Guilty he may rescue himself Coke 1 Insâ— 161. a. Note Four Nobles Fine is a general Fine imposed for a Rescuer Sir Thomas Jones p. 198. In Debt sur Escape versus Vic. Plaintiff declares That J. S. and his Wife were in Execution and that she escaped On nil debet special Verdict sound that the Baron was in Execution and that he escaped and further that the Wife was not taken in Execution being for Debt contracted before Coverture Yet Judgment pro Quer. the Verdict was not in the whole persuant to the Declaration because they found the Hubband Escaped 1 Siderfin 5. Roberts and his Wife against Herbert In Action on the Case upon a Rescous and Escape The Jury find the Deâ—t due to the Plaintiâ—â— the prosecuting the Lâ—â—itat for this Cause the making the Warrant hereupon to the Sheriff c. Cro. Jac. 485. Hodges and Mark. CHAP. XXI Of Escapes Some Maxims and Diversities premised Escapes as to Mean process and as to Execution What shall be or amount to an Escape of a Prisoner out of Execution or not Of Escapes in respect of the Old and New Sheriff and of the Prisoners being delivered over What thing or act shall excuse an Escape or in what Cases the Sheriff or Gaoler shall not be Answerable for an Escape Of Erroneous Process Where the Escape of one shall not be the Discharge of the other and where the oiher shall have Audita Querela or not Actions of Debt or on the Case by the party against the Sheriff for an Escape and who shall have such Action To whom it shall be said an Escape or not at Election Of Escapes ESCAPE is where one that is Arrested or Imprisoned on the Arrest comes to his Liberty before he is delivered
Judgment Upon which Execution was awarded by Default and thereupon issued a Cap. ad sat against A. by which he was taken and escaped Per Cur ' The new Sheriff shall be charged for tho' A. was in Execution which was determined by Escape in the time of the Old Sheriff yet when new Execution was awarded against him upon his default in the Scire fac the same shall bind the Sheriff out of whose Custody he escaped 1 Leon. pag. 3. Gibbert and Sir George Hart. What thing or Act shall Excuse an Escape or in what cases the Sheriff or Gaoler shall not be Answerable for an Escape If the Sheriff Arrest a man upon a Latitat or On Retorn of Rescous on Mean Process the Sheriff shall be excused in Action of Escape other mean Process and the Prisoner is Rescued from him before he be carried to Prison and the Sheriff retorns the Rescous against the Rescousers this shall excuse the Sheriff in Action sur case upon Escape because he is not bound neither is it convenient for him to bring a Posse comitat with him to serve every mean Process But if the Sheriff bring him to the Gaol and afâ—er he is Rescued out of Prison and he retorns the Rescous yet this shall not excuse the Sheriff for he ought to keep his Gaol at his Peril But if the Sheriff takes a man in Execution as on a Capias ad satisfaciend and he is Rescued before he brings him to Prisou tho he retorns the Rescous yet this shall not excuse him for that he is to take a Posse Comitat. and the party cannot have a new Execution Proby and Lumly Now let us see whether and how far erroneous Process shall excuse the Sheriff Tho the Process of the Court be Erroneous yet the Sheriff shall not be chargable on Escape as if first Capias be by a wrong name and the Testatum by a right name so if one who is in Execution by a Capias ad satisfaciend on a Recognizance tho the Capias is erroneously awarded yet the Sheriff is Chargeable Yet this is not Law for a Capias ad satisfaciend ' lies on a Recognizance as in Ognell and Pastons Case 1 Leon. 2 Bulst 256. Keysar and Tirrel So of a Capias awarded without a Fi. fac Cro. Eliz. 576. Conyers Case Cro Eliz. 188 Bushes Case So that he is not to take advantage of Error Diversity in the proceedings otherwise it is where he can alledge a nullity in the Record and if the Court award a Capias where it lies not to the Sheriff by force of which he takes the party and then suffers him to Escape he shall be charged for he is not to dispute the Authority of the Court. Another difference is where the Court hath Diversity where the Court has Jurisdiction of the Cause and where not Jurisdiction of the Cause and where not where the Court hath Jurisdiction and doth Misaward Process this is but Error But if the Court hath no Jurisdiction and doth Misaward Process there all is void and the Sheriff may shew this in discharge of himself As if a Formedon be commenced Originally in B. R. or an Appeal in the Common-Bench all is void and no Action of Escape lies against the Sheriff as Kingston upon Hull is a limitted Jurisdiction and they hold Plea of a Bond made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who being Arrested on it Escapes no Action lies against the Sheriff and this is the difference in the Case of the Marshallsea But this is more fully reported in Rolls Abrig 2 Bulst 62. Weaver and Clifford Ognell and Parstons Case 8. Rep. 243. Dr. Drurys's Case Action on the Case is brought in B. R. against the Officer in an Inferior Court upon Escape if the Plaintiff declare that he brought an Action against I. S. in the said Inferiour Court as Kingston upon Hull on an Obligation made at Halyfax in Com' Ebor ' and does not alledge this to be within the Jurisdiction of the said Inferiour Court and upon this Judgment was given and Execution granted and the Defendant took him in Execution and suffered him to Escape and upon this he brings his Action 1 Rol. Abrig 809. Richardsan and Bernard This Declaration is not sufficient to charge the Declaration Tho the Action be Transient yet if brought in Inferiour Court the cause of Action must be alledged to arise there Defendant because it is not alledged the Obligation was made within the Jurisdiction of the Court for altho the Action be Transitory yet this Inferiour Court had a Limited Jurisdiction of things arising within the Jurisdiction and the proceedings there were coram non Judice and utterly void of which the Officer shall take advantage in this Action for the Escape Upon the whole we may see that the Case of Warren and Clifford is misreported in Yel p. 42. where 't is said it was held by three Judges that the Action did not lie because he was not a Prisoner by the course of Law for he was in Execution upon a Capias ad satisfaciend on a Recognizance which lay not but a Sci. fac and therefore saith that Book he being taken by Capad satisfaciend he is not a Prisoner by Course of Law for the Law has not ordained any such means to Arrest him and he being in Custody without Warrant ' its no Escape But this is a double mistake for a Capias ad satisfaciend has been adjudged to lie on a Recognizance and if it did not yet ' its but Erroneous Process of which the Sheriff shall not take advantage In Case upon Escape against the Sheriff of Lancaster for suffering one M. W. to Escape out of Execution and shews a Recovery against him in B. R. and Cap. ad satisfaciend and a non est Invent ' retorned and a Testatum that he concealed himself in the County of Lancaster Erroneous Process because the Warrant varies from the command to the Sheriff of Com. pal Laneaster and a Writ was awarded to the Chancellor of the County Palatine of Lancaster that he should command the Sheriff to take the said I. M. ad saâ—isfaciend c. ita quod the said Chancellor should have him c. and that the Chancellor commanded the Sheriff that he should take the said M. ita quod the Sheriff should have him coram Justiciariis c. and the Defendant being Sheriff did thereupon Arrest him c. Error was brought because the Writ directed by the Chancellor to the Sheriff was not warranted by the Writ directed to him for it varies from the command for it ought to have been that the Sheriff should have the Body before the Chancellor ita quod that he should have him before the Justices Sed non allocat ' for tho there be Error in the Process the Sheriff shall not take any advantage thereof but having suffered him to Escape he is responsible
the Rescue circa c. 26th of February which is uncertain whether it were before or after that Day and if it were after the Day it will not maintain the Declaration for then it cannot be a Rescue the 26th Day But per Cur. the Verdict is good before or after the Day so as it was before the Suit commenced Cro. El. 53. Sheriffs of Norwich versus Bradshaw If Judgment be given in Debt against the Sheriff on Escape he shall have an Action on the Case against the party that escapes altho' the Gaoler Licenseth him to escape and the Gaoler shall not plead this License Mo. p. 404. n. 541. Belchamber and Savage Sheriffs of London brought Action upon the Case against Paine because that he being in Execution under their Custody at Spicer's Suit made Escape c. The Defendant confessed all the Matter but further pleaded That after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the Sum recovered Demurrer Per Cur ' The Action is maintainable tho' the Plaintiff in the first Action had acknowledged satisfaction the payment after doth not take awâ—â— the Action but mitigates the Damage only For the act of a Third person shall not take away an Action once vested 1 Leon. 237. n. 321. Offley and Saltington versus Paine and Hills Case there cited Fitzh N. B. 130. b. it s said there The Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued Qu. CHAP. XXIII Of Pleadings by the Sheriff to Actions brought for Escapes What shall be said a sufficient Fresh-pursuit and where upon Fresh-pursuit made he may retake the Prisoner or not And where the Prisoner upon his being retaken shall have his Audita Querela or not Fresh-pursuit how to be pleaded Pleading the Statute of Limitations Pleading acknowledgment of Satisfaction on Record by the Plaintiff or accord with Satisfaction Nultiel Record pleaded and how Escape by the Plaintiffs Consent By the Sheriff License Traverses Supersedeas Protection Priviledge pleaded Bar by the Voluntary Escape Venue Issue Evidence and Special Verdict Of Escapes of Felons Of Pleadings AS for the Pleading to Escapes directly the Defendant either denies the Escape and then he pleads Non permisit ire ad Largum or else he confesseth the Escape but pleads that he made Fresh-pursuit or that he escaped by License of the Plaintiff There are other Pleas common with other Actions as Statutes of Limitations Satisfaction Nul tiel Record c. Nil debet But I shall first Treat of Pleading Fresh-pursuit And as to the right understanding of that I shall enquire What shall be a sufficient fresh persuit or where upon a fresh persuit of the Sheriff he may retake the Prisoner or not and where the Prisoner upon his being retaken shall have his Audita Querela or not Tho the Prisoner that Escapes be out of the view yet if he be taken in recenti Executione he shall be in Execution again and tho he fly into another County where the Sheriff had not Power yet for as much as the escape was of his own wrong whereof he shall not take Advantage the Sheriff may retake him in another County and he shall be in Execution And fresh persuit is not that he must have him alwaies in his view but if he makes fresh persuit so that it doth not appear fully there was a default in the Sheriff in his persuit tho he be a day and a night out of his view yet he shall be said to be in Execution for the party against his will upon the retaking as if the Prisoner escape to an House and the Sheriff sets a Watch and takes him when he comes out If the Gaoler make a fresh persuit before any If the Sheriff retake him on fresh persuit before Action brought he shall be excused Action commenced and he is retaken the Gaoler shall be excused but ' its otherwise if before the Prisoner be retaken the party brings his Action for at the time of the Action brought he had good cause of Action but it seems by VVinch p. 35. that retaking upon fresh suit after Action is good but not after Issue joyned Cro. Jac. 657. Whiting and Sr. G. Reynells Case Stow Attorney of C. B. was in Execution in Norfolk for 1000l and he by Practice procured himself to be removed by Hab. Corp. before Coke Chief Justice at the Assizes in Lent and then escaped to London and in Easter Term following the Bayliff did retake him the Opinion of the Court was that the fresh Suit made was good tho he took him again at the end of the year if inquiry was made after him and so by consequence Action for false Imprisonment against the Bayliff did not lie Mich. 8. Jac. B. C. Stones Case If the Plaintiff bring his Action before the Sheriff retake him or if the Sheriff does not If the Sheriff does not make fresh persuit yet he may retake him make fresh persuit yet in both Cases the Sheriff may retake him and keep his Body in Custody till he agree with him or he may have Action on the Case for his Tortious escape And where the Prisoner escapes of his own wrong and is retaken he shall never have an Audita Querelâ— against the Sheriff but if he escapes with the consent of the Gaoler he cannot retake him and if he do the party shall have Audita Querela If one in Execution escape the Sheriff may not retake him but upon fresh persuit but he shall Gaoler makesfresh persuit and before he is taken the Prisoner dies yet Action lies against the Gaoler have Action on the Case against him or Trespass quare prisonam fregit 3 Rep. Ridgways Case Poph. 41. mesme Case Jones 145. Harvey and Reynels Case Cro. Jac. 657. VVhitneys Case 2 Rol. Reâ— 282 283 mesme Case A Prisoner escapes the Gaoler makes fresh persuit and before he hath taken him the Prisoner dies this is the Act of God and yet because it was once an escape the Action of escape lies against the Gaoler Poph. p. 186. Upon escape the Sheriff may not in fresh In fresh persuit Sheriff not â—o break open a Chest persuit enter into the House of I. D. and break the Chest of I. N. to search for the Prisoner 2 Rol. Abrig 564. Bennet and Gray If a man in Execution in the County of Devon escapes into the County of Somerset where he is taken in Execution at another mans Suit and after the Sheriff of Devon on fresh persuit finds him in Prison in Somerset-shire it is made a Question how he may charge the Sheriff of Somerset with the first Execution or put the party in Execution seeing he shall not retake him 1 Rolls Abrig 902. Tho Information lies against the Sheriff for Information against the Sheriff for escape escape yet it lies not on escape after taking
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
Habeas Corpus ad respondend ' recipiend ' or faciend ' granted on the Pleas side for so the Court of the Kings Bench is divided in the practise of it that is to say into Criminal Causes between the King and the Party and Civil Causes between Subject and Subject Now an Habeas Corpus ad respondend ' is when any one is Imprisoned at the Suit of another upon a Legal Process in the Fleet or any other Prison except the Kings Bench Prison and a third person would Sue that Prisoner in this Court B. R. and cannot because he is not in Custody of the Marshal of this Court there he may have an Habeas Corpus to remove the Prisoner out of the Prison where he is into this Court to answer to his Action here This is called a Habeas Corpus cum causa and an Habeas Corpus cum causa doth remove the Prisoner for whom it is granted and all the Causes which are then depending against him for upon Habeas Corpus to an Inferiour Court to remove Corpus cum causa they ought to return all the Causes that are depending there concerning the Party that hath the Habeas Corpus if any of the Causes depending be above 5 l. Stiles Rep. 150. When an Habeas Corpus is Awarded and Bail taken though they be not Filed yet presently the Prisoner is discharged and his Sureties also in the Inferiour Court Cro. Jac. 203. Franley and Basset One was in Execution in the Fleet for a Debt recovered against him in B. R. he being before condemned in the Kings Bench for another Debt was by Habeas Corpus cum causa removed into the Kings Bench per Cur. in this Case he may acknowledge satisfaction for both Debts in B. R. he being in the Custody of the Marshal for both Debts If the Marshal suffer him to Escape he shall be charged for both the Debts Dyer 152 307. As for Retorns of Habeas Corpus What shall be a good Retorn on Habeas Corpus or Corpus cum causa An Habeas Corpus to remove one committed for Debt from one Prison to another may be granted Retornable immediate or indilate for this is only an Habeas Corpus ad Recipiend ' in the nature of it An Habeas Corpus is not a Record till it be Amendment Retorned and Filed and then it cannot be amended but it may be amended before it s Filed Whatsoever person or by what means soever Conclusion of the Retorn he was committed the conclusion of the Retorn ought to be Corpus tamen ejus paratum habo yet it cannot always be so 1 Leon. p. 70. An Habeas Corpus ad subjiciend ' is always intended Retorn by the Chancellor of Durham to him that has the Body tho' ad faciend ' may be circular as an Habeas Corpus was directed to the Chancellor of Durham that he make a Precept to the Sheriff to have the Body coram nobis apud Westm The Retorn is that the Chancellor issued a Precept to the Sheriff to return his Body before him and that the Sheriff returned paratum habet and it s not said the Chancellor had him here which is ill per Cur. for it should be cujus Corpus paratum habeo in this Court 3 Keb. 229. the King against Pell and Offley Habeas Corpus was directed to the Steward and Cause of commitment shewed Marshal of the Marshalsea for H. the Marshal Retorns the said H. was committed to the Custody per mandatum Francisci Walsingham Mil ' principalis Secretar unius de privat ' Concilio Domini Regis This is insufficient because the Cause of Commitment is not set down in the Retorn Then it was amended and Retorned in this manner ex sententia mandato totius Concilij privati Domini Regis ità qd ' ejus corpus habere non possumus This per Cur ' is in sufficient also he ought to have concluded Corpus ejus tamen parat ' habeo Note Where the Party is committed by the whole Councel no cause of the Committment need to be shewed 1 Leon. p. 70. On Latitat the Sheriff Retorned that he had By Habeas Corpus to bring into Chancery Arrested the Defendant and that such a day and before the Retorn of the Latitat Habeas Corpus was to bring the Body into Chancery and there the Prisoner was Discharged the Retorn is good for the Sheriff is bound to obey the Kings Writs and he cannot compel the Parties to put in Sureties here in B. R. But it was ill done of the Master of the Rolls to Discharge him Per Curiam we have oftentimes persons here upon Habeas Corpus who are also Arrested by Process out of the Exchequer or of the Common Pleas but we will not Discharge them before they have found Sureties for their appearance and we cannot punish the Sheriff for the Habeas Corpus was first retornable before the Latitat But because the Retorn was à custodia nostra exoneratus fuit which might be intended as to the Cause in Chancery only and not for the Cause here for he hath not alledged that he was committed to any other in Custody the Sheriff was to amend his Retorn 1 Leon. 145. Cary Amendment and Dennis A Retorn of Habeas Corpus by the Warden of the Fleet was propter contemptum extra Cur ' Cancellariae It s not good 1 Rolls Rep. 92. General Directions for Writs of Habeas Corpus Error or Priviledge vid. Compleat Solicitor 106 and other Manuals On Habeas Corpus the Sheriff Retorns that the That the Justices committed him for a Fine Justices of Peace committed the Plaintiff for a Fine on Contempt for which the Court awarded him to remain in Prison till payment Siderfin p. 144. the King versus Mayo The Retorn on Habeas Corpus was a Protection Protection 1 Leon. p. 70. Searchers Case Note The Retorn of an Habeas Corpus ought Retorn to be Writ on Parchment to be Written in Parchment and not on Paper for the Retorn is to be Filed and made a Record of Court and all Records are to be Written on Parchment And therefore after the Retorn is Read and Filed in Court it cannot be amended But in Hob. p. 113. An Habeas Corpus was Retorned without the Sirname of the Sheriff and after Verdict amended It is agreed The Retorn of an Habeas Corpus Amendment Good to common intent need not be so punctual as a Plea because not made by Persons of such Learning as Pleas are but if they be good to common intent and substance it s enough Upon Habeas Corpus granted by the Kings Rule to bring in the Body Bench to the Warden of the Fleet to have here in Court the Body of D. W. the same Retornable at a day certain at which day the Warden of the Fleet did refuse to make his Retorn and to bring in the Body And the Court entred a
Rule to bring in the Body of B. W. the next day Sub Poena 20 l. and so are all Presidents of Felony and Treason Note If it appear that the Committment is good and there is good Cause the Court remands the Prisoner if it is not good they Discharge him if it be doubtful they Bail him The Sheriff may suggest that the Party will Who to pay the Charges of the Retorn not pay his Charges of Retorn of Habeas Corpus ad faciend ' recipiend ' which is at the Suit of the Party But contra in Habeas Corpus ad faciend ' subjiciend ' which is at the Suit of the King he must Retorn at his Peril 1 Keb. 272 280. the King versus Armiger And on Habeas Corpus to remove any Prisoner the Sheriff must Retorn the Writ and the Court will allow his Charges here So in the Case of the Steward of Upon Habeas Corpus the Officer ought to bring the Prisoner to the Court and the Court shall tax Charges and compel payment if the Officer and Prisoner or Plaintiff cannot agree or payment be not made according to the Agreement Sir Tho. Jones p. 178. Error on a Scire fac ' on the Sheriffs Retorn being an Original Suit lies not in the Exchequer Chamber but Error on Scire fac ' Quare Executionem non hath been constantly allowed to lie there 2 Keb. 833. Jones and Anderson The Form of the Retorn Languidus Detent ' in Prisona attamen Corpus ejus c. The Causes of the Caption and Detention Retorned vide Dalton cap. 63. that he was taken in Execution by the late Sheriff c. that he was Imprisoned by a Justice of Peace his Warrant Retorn of a Certiorari per Viscount The Sheriffs of London appeared in Court in their proper person upon a Rule of Court to shew Cause why they did not grant out Execution upon a Judgment given in their Court or else to make a sufficient Retorn of a Certiorari directed to them because they had made three insufficient Retorns Stiles p. 444. A Certiorari was directed to the Sheriff to certifie whether the Conisor in a Recognizance had an Heir Jones p. 319. CHAP. XII How many sorts of Juries Of Retorns and by whom Retorned what manner of persons shall not be Retorned on Juries and how they shall be Discharged Where when and how persons exempt shall have Action against the Sheriff for Impannelling them Of returning trop petit Issues Of levying the Issues Of other Erroneous proceedings and misdemeanors of Sheriffs about Jurors What Estate every Juror must have by the late Statute of 4 5 W. M. Of Challenges The several sorts and causes of Challeng and what are good or not and when to be taken Of Enquiry Of Tryals betwixt Party and Party Jurors are of two Sorts Juries to Enquire are grand Juries at Assizes or the Quarter Sessions So Juries Retorned before Justices of Peace to enquire of Riots Forcible Entries and Juries Retorned before Commissioners of Sewers or upon the Statute of Bankrupts Coroners c. and Inquisitions taken before the Sheriff and all these the Sheriff is to Summon except Bankrupts Qu. Now upon every Tryal in personal Actions the Sheriff must Retorn two Hundredors at least Cok. Litt. 1 25 158. As for the number of Jurors Retorned vid. Dalton 86. Retorn of Jurors If it be conceived an indifferent Jury will Jury Retorned by the Secondary not â—e Retorned in the Country the Court on motion will order the Sheriff to attend the Secondary of the Office with the Book of his Freeholders to have an indifferent one Retorned Pract. Reg. 163. So it was done in Pooles and Markham Case Stiles 477. because the Plaintiff in a former Tryal between the Parties had Feasted four of the Jury and had Feasted some of the Jury that were Retorned upon that Tryal and the like was done in Coxes Case 15 16 Car. 2. B. R. because Cox who was Intitled to the Reversion had forbid Rent to be paid by the Tenants and took on him the defence of the Ejectment brought against the Tenants was of Kindred to the Sheriff and Undersheriff and Trustee for them But in another Cause 17 Car. 2 B. R. The Court on Certificate of a Judge that Verdict was given contrary to Evidence would not allow that the Sheriff should bring in the Book of Freeholders to the Secondary for the ill Example but ordered the Sheriff should Retorn a good Jury in the new Tryal Upon motion that the Cause to be Tryed at the Bar is of great consequence the Court will make a Rule for the Sheriff to Retorn 48 Jurors upon the Jury Pract. Reg. 163. When a Tryal is to be for a thing which concerns Who to Retorn the Jury the Undersheriff there the High Sheriff shall Retorn the Jury aliter if the Tryal concerns the High Sheriff the Undersheriff shall not Retorn the Jury but the Coroners Pract. Reg. 164. What manner of persons shall not be Impanelled on 8 Rep. 5. 3. 6 Rep. 108. 9 Rep. 49. Juries and how they shall be Discharged and where they shall have Actions against the Sheriff for Impannelling of them The Sheriff ought not to Retorn Priviledge Exemption to be exempt from Juries but he ought to Summon and shall not be liable to an Action Siderfin p. 243. The King and Percival the Case was Venire fac ' was awarded to the Sheriff of the City and County of Canterbury to Retorn a Jury here at the Bar and upon the Distringas the Sheriff Retorns this to be an Antient City and County and that the King had granted to them an Exemption not to serve in any Jury out of their City except in Cases of High Treason and by express words that they should not serve coram ipso Rege Per Cur ' First The Retorn is ill Because if it were in the power of the Sheriff to Retorn Priviledge he cannot do this upon the Distringas or Habeas Corpus as he did here because by the Retorning of the Venire viz. That there are 24 prob ' Legales homines he had concluded himself there being also Pledges upon every such Retorn Secondly That the Sheriff may not Retorn so Priviledge of Exemption when to be claiâ—ed at any time but ought to Retorn them Summoned and the Parties ought to come here and then every person who had cause of Priviledge ought to calim here in person and not the Sheriff for them More 883 30. Wallers Case Siderfin 293. The King and Percival The Court awarded an alias Distringas in regard the Sheriff cannot vary from the first Venire Retorned but must have the same Men Keb. 867. mesme Case And no Action lies against the Sheriff upon their Delivery of the Writ of Exemption Hardress Rep. 389. mesme Case But in the Town of Darby and Foxleys Case Action on the Case against the Sheriff for
to Reverse the Judgment and upon his Prayer the Court bailed him that he might prosecute the Suit with effect But this Bail was not entred of Record And the Court held it good Evidence The Escape supposed here is for Bailing is the Act of the Court. letting him go by Bail which is the act of the Court and not of the Marshal and may well be given in Evidence Cro. El. p. 5. Vast and Gandy By Wray upon Execution sued after Verdict Bail upon Attaint altho' the Party Sues Attaint the Court usually does not Bail him for the Verdict is intended true till reversed but on good Considerations they may And tho' the Bail be not entred yet the Plaintiff for his benefit may cause it to be entred and then he may have a Scire fac ' on the Bail and so is not at any mischeif The Party being charged in Mean Process when Committitur to be proved he was in Custody the Evidence may be good without proving any Comittitur but if he were in Execution the Comittitur upon the Roll shall be proved Siderfin 237. the King and Povey In Debt sur Escape if the Defendant Plead No Escape pleaded Evidence no Arrest which must be proved in Evidence on Escape for Mean Process nul Escape he cannot plead in Evidence no Arrest Tryal per Pais 174. Clayt 34. Verdict In Debt on Escape if the Plaintiff Declare of Escape against two and sound against one only an Escape of two and it s found one only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment Siderfin p. 5. Andrews's Case In Debt on Escape if the Plaintiff Declare of the Escape of Baron and Feme out of Execution On the Escape of Baron and Feme the Jury find the Baron only in Execution on Judgment for the Debt of the Wife dum sola and the Jury find the Husband only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment The Jury found not that the Wife was taken in Execution being for Debt contracted before Coverture Siderfin p. 5. Roberts and Herbert 1 Keb. 371. Mesme Case Though the Verdict find an Erroneous Process Verdict finds an Erroneous Process yet the Sheriff shall not take advantage thereof As in Debt on Escape and special Verdict finds an alias into another County without a Capias in the proper County and that I was in Execution and escaped Judgment pro Quer. on 2 Cro. 1. Pl. 1. Co. Dr. Druries's Case because the Sheriff is a Stranger and shall have no advantage thereof 3 Keb. 629. Hide and Hillar One rescued himself and escaped and the Verdict on Rescous before the day laid or after Sheriff brought Action on the Case On not Guilty The Jury sound he was arrested circa the 26 of Feb. and then and there rescued himself Per Cur ' be the Rescous before or after the day supposed in the Declaration its good enough so as it be before the Suit commenced Cro. El. 53. Sheriff of Norwich and Bradshaw Consideration on Assumpsit about delivery of Prisoners in safe Custody and saving harmless of Escapes The Sheriff having one in Custody takes Assumpsit of J. S. to deliver the Prisoner to the Bayliff in safe Custody this is a good Assumpsit and no Escape For the Court will not intend that the Bayliff was absent from the Prisoner Siderfin p. 132. Benskin and French In consideration the Plaintiff who sueth as Bayliff would permit J. S. taken in Execution to Rest in the House of N. till Friday next if he Escape the Defendant would pay the Debt By Hales The Consideration is good in Mean Process but being in Execution its ill But the Action must be brought by the Bayliff or nobody but consideration to make a Special Bayliff is sufficient to save harmless This is no Bond or Promise taken of the Prisoner nor of any for him therefore ' its not within the Statute 2 Keb. 805. Feake and Carter 1 Leon p. 132. Palmer and Smalbrook The Bayliff assumes to save the Sheriff harmless of all Escapes is not good The Declaration is That a Ca. sa on a Judgment was awarded against the Defendant to the Sheriff of Suff. who directed his Warrant to the Plaintiff as his Bayliff to serve it and that the Plaintiff assumed to the Sheriff to save him harmless of all Escapes and that by force of the Warrant he arrested the Defendant and the Defendant intending to make the Plaintiff to be charged escaped for which the Plaintiff in the first Action brought an Action against J. C. the Sheriff upon this Escape and recovered and J. C. brought this Action on the Assumpsit It was moved in Arrest of Judgment that there is no sufficient Cause in the Declaration to maintain an Action for tho' the Sheriff may have Action on the Case against the Prisoner that Escapes yet the Bayliff shall not have it Per Cur ' For the Bayliff was not chargeable to the Sheriff by Law but by Assumpsit and this being his voluntary Act shall be no cause to charge the Defendant but shall only make himself chargable But they agreed If the Bayliff had been chargable by Law without such Promise Action lay for him against the Defendant who caused him to be charged Cro. El. 349. Allerton and Harwood In Consideration he would permit him to go at Large and of 2 s. paid he promised to pay all the Mony in which the Party was condemned in Execution Per Cur ' the Consideration is not good being contrary to the Statute of 23 H. 6. and that a Promise and Obligation was all one and tho' it be joyned with another Consideration of 2 s. yet being void and against the Statute for part it is void in all Cro. El. p. 199. Tetherstons's Case Pl. Dive and Manningham Plaintiff declared Whereas the Defendant was arrested at his Suit on Process the Defendant in Consideration that he should be permitted to go at Large promised that he would appear at the day of the Retorn of the Prisoner or would give him 10 l. and he did not appear at the day Per Cur ' Its a good Assumpsit being made to the Party which had Authority to dispense with his appearance Had it been made to the Sheriff or to any other to his use it had been within the equity of the Statute of 23 H. 6. Cro. El. 190. Millward and Clarke Of Escapes of Felons All Prisoners are such either by Matter of Record or Matter in Fact By Matter of Record when one present in Court is committed to Prison by the Court. There if the Gaoler has not him ready it s an Escape without more enquiry unless he had reasonable excuse and the Judges will set the Fine presently By Matter en fait a Man is a Prisoner when he is arrested by Sheriff Bayliff Constable c. and Escapes there the Jury ought
Where and what cases the Sheriff shall be amerced 377 Of Appearance on Bail Bond 92 93 What Appearance to a Sheriffs Bond good 99 110 Appearance of the party cures the Retorn of one that was not Sheriff 110 Arrest What Arrest is good or not as to the manner of doing it 80 What is good in respect of the time of the Arrest 81 In respect of the Warrant vide Warrant 86 In respect of the persons Arrested and who are priviledged or not 82 Arrest after a Supersedeas 360 Attachment The Nature of it 375 Against the Sheriff in what cases ibid. Against others 376 On Attachment the Sheriff ought to Retorn the certainty of the Goods and why ibid. On Attachment of Money in the Sheriffs hand 376 Assize Retorn of the Writ 402 Assumpfit and Consideration about paying Fees What shall be godo or not 121 Promise to procure Goods to be found by Inquisition 255 One part of a Promise unlawful makes all vicious ibid. In Consideratin of making one especial Bayliff a Promise to save harmless from Escapes 8 57 Assumpsit for paying the Sheriffs Fees what good or not 422 Sheriffs Duty as to the Assizes and Sessions 211 Audita Querela Writ of Audita Querela as to the Form 244 Where Audita Querela lies on Escape out of Execution or not ibid. Outlawry pleaded to Audita Querela 245 Where it lies on Escape as to Mean Process 311 Delivery upon a void Audita Querela whether it be an Escape or not 302 Averment against the Sheriffs Retorn where good or not 157 B BAil The Custom of the Court as to putting in Bail 92 Bailing is the Act of the Court and the Consequence ibid. One in Execution in the Custody of the Marshal not compellable to find Bail if another Action be brought against him Alitèr as to the Fleet 93 Who to take Bail in London ibid. Bail for one taken by Cap ' Excommunicat ib. Scire fac ' on the Escape of the Bail vid. Escape Scire fac ' and Retorn of it against the Bail 93 Bail de bene esse what 95 The Statute of 23 H. 6. c. 10. of Bail Bonds explained ibid. The Form therein to be observed ibid What Bond good within that Statute or not 97 98 Pleadings upon that Statute 105 The advantage of Pleading this Statute lost by Demurrer 113 Of Sheriffs Retorns on Bayl Bonds 111 Of Sureties on Bail Bonds 103 Of Bail Bonds being Discharged or Assigned 114 The Sheriff not to take above 40 l. Bail how understood 122 In what Cases the Sheriff may Bail or not ibid. Actions on the Case against the Sheriff for holding to extrordinary Bail ibid. Bayliffs of Hundred their Nature and Office 43 Not to be prejudiced by the Non Retorn of the Sheriff ibid. To take the Oath of Allegiance 44 Special Bayliff What and how they stand in Eye of the Law 45 Bayliff of Franchises 46 What Bonds for appearance they may take ibid. To what their Office extends not 47 Of their Retorns to the Sheriff 48 Where and in what Cases the Sheriff may enter their Franchise 49 Bayliff of a Franchise not to take benefit of his own Liberty 49 Pleadings by Bayliffs of Franchises ibid. Bayliffs of Fee or Guildable vid. Retorn 51 52 Bonds Bail Bonds vide supra Other Bonds and Covenants entred in to the Sheriffs what shall be good or not 116 Bond to be a true Prisoner and the Pleading 117 For Chamber Rent 121 Bonds or Covenants between the High-sheriff and his Officers 424 Baron and Feme How the Husband is to be charged on the Conversion of the Wife upon a Special Verdict 303 Debt lies on Escape of the Wife C. Capias ad Satisfaciend ' what 211 Against whom and for what it Lies ibid. Of the Sheriffs Demeanor therein ibid. Of the Retorns upon it 212 Ca. sa after a Fieri fac ' ibid. Of Escape of one in Execution by Ca. sa vid. tit Escape 10 Cap ' ad Sat. against the Kings Debtor in Execution 212 Retorn on Fieri fac ' Quod Clericus est beneficiatus 114 211 Where a Ca. sa shall be after an Elegit 252 Of the Retorn of Clericus Benificiat ' 401 404 Courts Diversity where a Court has Jurisdiction of the Cause and where not 308 Cause of Action must be alledged to arise in an Inferior Jurisdiction 309 Where and how the Jurisdiction ought to be set forth or not 175 Where one is arrested in an Infetior Court when Cause of Action does not arise there Action lies against him that levied the Plaint and not against the Officer 363 Justification by Process out of an Inferior Court of Record how to be pleaded 364 Retorns from inferiour Courts vid. Retorn County When the Kingdom divided into Counties 2 Notatio Nominis Viscounts of two sorts and the Original 2 3 County Court incident to the Office of Sheriff the Style of it who are Judges 53 Jurisdiction of it 54 As to the Summs it holds Plea of 55 As to the time ibid. As to the place 96 The Process in the County Court ibid. Of the County Clark 58 Colore Officij how to be taken 104 Challenge The several sorts 184 What 's a good Cause of Challeng or not 185 Difference between a Covenant and a Bond Covenants entred in to the Sheriff 424 Of Coroners How chosen and their Demeanor c. 430 Action on the Case Against the Sheriff on Escapes 382 Against the Sheriff for holding to unreasonable Bail 381 For imbesiling an Exigent ibid. For entring into a Franchise or Corporation which had Retorna Brevium ibid. For not delivering a Super sedeas to the New Sheriff ibid. Against an Under-sheriff for concealing a Writ 382 Against the Sheriffs Deputy for Substracting a Writ ibid. For refusing sufficient Bail 383 For not bringing Mony into Court levied by Fieri fac ' 383 Pro vicount ' if the Conusee sue an Extent and refuse a Liberate to the intent to defraud him of his Fees 217 Vide Retorn Vide Rescous D. THE Form and Manner of the Sheriffs Discharge 20 23 Delivery of Prisoners and of the Old and New Sheriff 21 22 Delivery of Prisoners and Writs by the Old Sheriff to the New and how to be made ibid. Till what time the Old Sheriff or his Officers may act 20 25 The Form of the Indenture for setting over Prisoners 24 What Acts may or must the Old Sheriff do after he is discharged 25 26 What remedy against him for a Misdemeanor in his Office after his Office 26 Of the Sale of Goods on Fieri fac ' after the Old Sheriffs Discharge ibid. The Form of Pleading the Removal of one Sheriff and the Election of another ibid. Sheriffs Deputy 27 33 Pleading by him ibid. Of Rescue from him ibid. Distringas Juratores 167 Declaration in Action on the Case for the Sheriffs Fraudulent omission of Execution of Goods 219 The Course of Declaring in B. C. Declaration on Escape or Cap.
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
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
Bond. the Money being paid before the Retorn of the Writ and Common Appearance ordered 3 Keb. 356. Randall's Case If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to sue the Sheriff And the Sheriff shall be amerced till he assign the Obligation to the Plaintiff Pract. Reg. 24. Siderfin p. 24. When Bail is put in de bene esse as Bail taken Bail de bene esse in a Chamber the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keb. 478. The Court cannot compel a Sheriff to assign Where the Sheriff shall be compelled to assign his Bail Bond. his Bond regularly But in some Cases they will as the party was arrested by the Sheriff and through his default in not Retorning the Writ The Defendant died Now in this case he shall not take advantage ofhis own wrong but shall assign the bail Bond or pay the utmost Amerciaments 2 Keb. 388. Hill and Browning It was moved in B. R. to stay Proceedings Proceedings upon Bail Bond shall not be stayed until Special Bail given where the Plaintiff had been prejudiced by delaying of Appearance upon bail Bond upon discharging the Amerciaments and Costs as is usual And it was alledged on the other side That after the same Bail given the Principal had sold his Land and became irresponsible and rendred himself to the Marshalsea And for this cause the Court refused to stay Proceedings and said it would not be done until he had given Special bail because they did not cause him to appear at first according to their Obligation And so it is when the Principal on such default of Appearance becomes a Bankrupt Siderfin pag. 386. Of other Bonds beside Bail Bonds Entred in to the Sheriff what are good and what not And Pleading Vide infra tit Bonds between the High-sheriff and Under-sheriff and others Bond to be a True Prisoner A Bond given to be a True Prisoner as by Law he ought is good and not within the Statute of 23 H. 6. As to this There is a Notable Case of Lenthall and Cooke The Case is Lenthall the Marshal brings Debt on Bond against Cooke The Condition was If the above-bounden A. P. now Prisoner in The Condition the Kings-Bench in Southwark do and shall from henceforth be and continue a true Prisoner in the Custody guard and safe-keeping of the above-named John Lenthall Marshal of the same Prison and in the Custody guard and safe-keeping of his Deputy Officers and Servants or some or one of them until he shall be lawfully discharged without committing any manner of Escape or Escapes during the time of his Restraint Then this present Obligation to be void The Defendant Pleads the Statute of 23 H. 6. Pleadings of Obligations made to the Sheriff colore Officii And further pleads That at the time and long before the Plaintiff was Marshal that P. at the same time was a Prisoner at the Suit of c. And that the Defendant together with the said P. pro easiamento favore to be shewed by the Plaintiff to the said P. made the said Bond c. The Plaintiff Replies and Bond was pro meliori securitate of the said Plaintiff that the said P. should not Escape and traverseth the Ease and Favour The Defendant demurrs And these things were Resolved by the Court. 1. That the Marshal of the Kings-Bench is within the words Gaoler and Keeper of Prisons 2. Bonds made to Gaolers for Ease and Favour of Prisoners are void 3. A Bond given to save harmless from Escapes Bond to save harmless from Escapes is void is within this Statute and void but a Bond to continue a True Prisoner is good And there is no agreement that it is for Ease and Favour appears but the contrary rather for the Plaintiff in his Replication hath Traversed it and the Defendant hath confessed the Replication to be true by his Demurrer 1 Sand. 162. Lenthall and Cooke Latch 23 143. Elworthy and Perryer and Hill there cited This Case of Lenthall and Cooke is Reported by Siderfin and the Case there truly put as here The Intention of the Obligation was for Ease Plea and Favour and Traversing it hath taken it away Now when the Defendant had such Issue Demurrer offered and refused to joyn but demurrs the Defendant agreed it was for Ease and Favour Siderfin 283. Note A little Evidence in such case would serve to prove Ease and Favour A Bond to the Warden of the Fleet to be a True Prisoner The Defendant without pleading the Statute saith it was for Ease and Favour The Plaintiff demurrs The Plaintiff should have Traversed the Ease And Judgment for the Defendant 3 Keb. 320 361. Oakes and Cell Condition is Where D. F. is under his Custody i. e. of the Obligee upon Arrest at the Suit of the Plaintiff in Action of Debt of 1400 l. upon Bond by him to the Plaintiff and at the Request of the Defendant he is permitted to go at Large for six days If therefore the said D. before the 12th of February renders himself a Prisoner to the Sheriff of Middlesex at the Plaintiffs Suit on Action of 1400 l. and remain a True Prisoner till he shall be discharged by Consent of the Plaintiff See the Pleading Quaere de Judgment Sir Tho. Jones Rep. 139. Rushant and Waite Siderfin 132. But a Bond of one in Execution to be a true A Bond of one in Execution to be a True Prisoner is void Prisoner is within this Statute and void And as to this the Case was The Condition of the Bond was If Thomas Manningham keep the Sheriff without damage against our Lord the King and one T. P. and at all times be at the Commandment of the said Sheriff as a True Prisoner and appear before the Justices c. Then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Thomas Manningham was in Execution upon a Recognizance and that the Sheriff made the Obligation for the delivery of the said Thomas Manningham and demanded Conclusion of the Plea Judgment si Actio i. e. If the Plaintiff ought to maintain his Action This is no good Conclusion of the Plea he ought to have Concluded Issint nient son fait For the Statute saith it shall be void and if it shall be void then it shall be void from the beginning and then it is not his Deed. And further That he had not wisely Concluded his Plea for this Special Conclusion had straitned the Defendant so that if the Obligation be void for any other Cause the Defendant shall not have benefit of it And yet because it appear'd to the Judges on the Matter in
Law that the Plaintiff had no Cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for Bailing those 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
Seal of the Exchequer and the same delivered to him for without Warrant he may not Levy the same 27 Ed. 1. c. 7. Other erroneous Proceedings and Misdemeanors of Sheriffs about and concerning Jurors After the parties were at Issue in Trespass and an Habeas corpus awarded against the Jury the Common-Bench in which the Action depended Supersedeas restrains the Sheriff from Retorning a Jury awarded a Supersedeas quia improvidè c. which was delivered to the Sheriff who notwithstanding retorned the Jury and tryed the Cause This was assigned for Error and in nullo est erratum pleaded it was adjudged Error For the Error assigned is a Matter of Fact depending on a Matter of Record and then the Defendant What is confessed by pleading In nullo est erratum by pleading In nullo est erratum had confessed this that is to say That such Supersedeas was awarded and delivered to the Sheriff before the Trial. Upon which it follows that after the Supersedeas delivered the hands of the Sheriff are closed that he cannot proceed to distrain the Jury nor to Retorn the Writ before the Justices of Assize It s a manifest Error if the Sheriff Retorn the Writ of Hab ' corpora at the Assizes with Nisi prius after Supersedeas awarded for staying the Retorn of the Writ as the Proceedings are erroneous in Inferior Courts after Habeas corpus delivered without a Procedendo Yelv. p. 57. King and Andrews Cro. Jac. p. 43. King and Hill It is not necessary for the Sheriff to Retorn Reasonable things shall be intended to be done the Pannel of the Jurors Names but to say they are de vicineto of such a place for so it shall be intended and the Forms of all Retorns of Jurors are so Pract. Reg. tit Retorn In a Writ of Error Eleven Jurors were Retorned and one Stranger yet because it was the Retorn of the Sheriff it shall not abate 1 Roll. Rep. 302. The Statute of Eliz provides There Reasonable things intended to be done shall be two Hundredors in a Jury yet it s never seen that the Retorn of the Sheriff is so So the Statute of 42 Ed. 3. c. 11. is That the Sheriff shall arraign the Pannel in Assize four days before the Assize yet its never Retorned to be so done but such reasonable things shall be intended to be done unless the contrary appear 2 Siderfin p. 144. Barclee's Case An Attorney was picked over the Bar for directing a Sheriff to retorn Jurors Names Mo. 882. n. 1237. Hanson's Case Note But now by the Statute of 4 5 W. M. Stat. 4 5 of W. M. all Jurors other than Strangers per medietatem Linguae Retorned upon Trial of Issues joyned in the Kings-Bench Common-Pleas or Exchequer or before Justices of Assize or Nisi prius Oyer and Terminer Gaol-delivery or General Quarter Sessions of the Peace shall have in their own Name or Trust within the same County Ten pounds per annum above Reprizes of Freehold or Copyhold Land or in Ancient Demesn or in Rents in Fee-simple Fee-tail or for their own or some other persons Life and in Wales Eight pounds per Annum If any be retorned of Lesser Estate he may be discharged by Challenge or upon his own Oath nor shall a Jurors Issues be saved but by Order of Court for reasonable Cause proved upon Oath The Sheriff Coroner or other Minister retorning any person of Lesser Estate shall forfeit Five pounds to Their Majesties for every person so Retorned They must be summoned six Days before the day of their Appearance and none shall take a Reward to excuse a Jurors appearance on pain to forfeit Ten pounds to Their Majesties This Act extends not to Cities Burroughs or Towns Corporate Of Challenges A Challenge to the Jurors is Twofold To the Array Polls To the Array is to except against all the persons Impannelled And as to this there is a Challenge Principal or for Favour Note That the Challenge to the Array is in respect of the partiality or default of the Sheriff or other Officer that made the Retorn and not in respect of the Persons retorned where there is no partiality or default in the Sheriff For if the Challenge to the Array be found against the party that takes it yet he shall have his particular Challenge to the Polls If the Sheriff or other Officers be of Kindred or Affinity to the Plaintiff or Defendant if the Alliance continue a good cause of Challenge 1 Bulstr. 5 6 7 8. Earl of Salop versus Earl of Rutland Challenge was taken to the Array because the Sheriff was Cousin to the Lessor in Ejectment and concludes not to the Favour it s a principal Challenge Yet in Roll. Rep. 183. it s adjudged a Principal Challenge and in 1 Roll. Abr. 328. Guest and Bridgman saith It is not a Principal Challenge that the Lessor is Cousin But Trin. 1657. B. R. in the Lord Brook's Case its a Principal Challenge Cro. Jac. 575. Simonds and Walsh 2 Rolls Abr. 182. Venire fac ' was awarded to the Coroners on surmize that the Lessor in Ejectment was Servant to the Sheriff It was doubted whether it was a Principal Challenge in 1 Jac. Harbottle's Case Coke said It was Adjudged in 27 El. in Packington's Case that it was not a Principal Challenge but in Spicer's Case it is Resolved otherwise Cro. Jac. 21. Dyer 7 367. If the Challenge be taken for Cosinage it ought to be shewed coment Cousin but in such case Challenge to a Juror is not necessary It s clearly a good Challenge to the Array that the Sheriff is Cousin to the Wife of the Defendant tho' the Wife is no party to the Action But it must be averred that she was alive or had Issue at the making of the Pannel 1. If the Jury may try a Challenge for Cosinage of the Sheriff to the Plaintiff or Defendant and sometime the Coroners or Attorneys in Court are Elisors 2 Roll. Rep. 363. Lloyd and Elisors Williams If the Defendant challenge the Array for that the Sheriff is Cousin to the Plaintiff it is no Counterplea of the Challenge that the Sheriff is also Cousin to the Defendant but the Array shall be quasht because the Defendant first took the Challenge Pasch 41 El. B. R. 2. If any one or more of the Jury be retorned at at the denomination of the party Plaintiff or Defendant the whole Array shall be quasht 3. If the Plaintiff or Defendant have an Action of Battery or Debt against the Sheriff or if the Sheriff have parcel of the Land depending on the same Title or if the Sheriff or his Bayliff be either of Counsel or Attorney or Servant or Gossip of either party all the Array shall be quasht A Prayer to Elisors in Trials at Bar may be at Elisors the Suit of the Defendant or Plaintiff but in Nisi prius at the Prayer of the Plaintiff only Consanguinity
or Affinity are the principal Causes but it s no Challenge to the Array if all the Jurors be of Affinity Challenge to the Array for Favour That the Sheriff is Servant to the Plaintiff or was Arbitrator for a party That the Sheriff purchased part of the Land in question That one party is Tenant or Servant to the Sheriff Malice between the Sheriff and one of the parties is good cause of Challenge That one of the parties has brought an Action of Debt against the Sheriff c. but not that the Officer has Debt against the party for he may demand his Debt without Malice This kind of Challenge being no principal Challenge must be left to the Conscience and discretion of the Tryors Challenge to the Polls i. e. to the particular Challenge to the Poll. Jurors and these are of four sorts 1. Peremptory without shewing any Cause and this for Treason is 35. Felony 20. 2. Principal Challenge to the Polls so called because it stands of it self without leaving any thing to the Conscience or Discretion of the Tryors Now this is such Matter as proves evident Favour or Enmity in the Juror And this is Propter respectum as the Nobility may be challenged or he may challenge himself propter defectum as Aliens Villains not having Freehold sufficient not having two Hundredors Propter affectum as Jurors of Kin or Blood to either party that he has formerly Tried the Cause Counsel not a Commissioner for Examination of Witnesses Fellow-Servant for Favour propter delictum as Outlaw'd c. 3. Challenger to the Poll must shew Cause presently After one hath taken Challenge to the Poll he cannot challenge the Array 4. If the Plaintiff alledge a Cause of Challenge against the Sheriff the Process shall be directed to the Coroners and if any Cause against all the Coroners then the Court shall appoint Elisors Sometime two of them that be Elisors Impannelled When any Challenge is made to the Pollâ— two Tryors shall be appointed by the Court. Note All Challenges must be taken before the Jurors are sworn No Challenge shall be admitted against the Tryors appointed by the Court. There may be a Challenge to the Pannel by Exception to the Sheriff after a Tales prayed to him So after a Venire fac ' prayed to him tho' the cause of Challenge were before the Prayer Hob. p. 235. Upon a Writ of Error the Record was certified That the Challenge was to the Sheriff for Cousinage and after a Venire fac ' awarded to the Coroners upon the Diminution it may not be Certified That the Challenge of the Cousinage was after the Retorn of the Venire fac ' because this is contrary to the Record before certified 1 Roll. Abr. 764. Floyd and Bethell That the Sheriff was quondam Servant to the Defendant Earl of Rutland is no principal Challenge its past and executed Aliter had it been so at the time To say That between the Sheriff or Officer that retorns the Pannel and one of the Defendants there was an Action of Trespass then depending is a principal Challenge CHAP. XIII Of the Writ of Enquiry of Damages and the Sheriffs demeanor therein and in what Cases a new Writ shall be granted or not By whom to be executed The time of Executing it The Form of the Retorn of a Writ of Enquiry of Damages Vide sub tit Waste IF upon the Executing of a Writ of Enquiry A new Writ granted of Damages the Sheriff refuseth to swear and examine some of the Witnesses produced on either part and yet doth execute the Writ the Court will grant a new Writ to the party grieved for the old Writ was not well executed Pract. Reg. 348. A Writ of Enquiry of Damages directed to the Sheriff cannot be executed by a Bayliff of a Liberty Hob. p. 83. Writ of Enquiry of Damages varies in the Amended retorn of the Award upon the Roll which was amended and made agreeable to the Roll Mo. 711. n. 998. As to time of Executing it If a Writ of Enquiry of Damages be Retornable Octabis Michaelis the Sheriff may take the Inquest and enquire the Damages the day of the Retorn and after he Retorns it the same day this Writ is well executed Trin. 38 El. B. R. Gawen and Ludlow If on a Writ of Enquiry of Damages the Inquest be Impannelled the Essoyn Day and the Jury then hear their Evidence two or three days after yet this is well executed Mich. 11 Car. 1. B. R. Stainby and Waterman Retorn of a Writ of Enquiry of Damages Executio istius brevis patet in quadam inquisitione huic brevi annex ' INquisitio indentat ' capta apud C. in Com' War ' tali die anno coram A. B. Armig ' Vicecom ' ejusdem Com' Virtute cajusdam brevis domini Regis eidem Vic' direct ' huic inquisitioni consut ' per Sacrament ' R. S. F. G. c. ad numorum 12 Jurors qui dicunt super Sacramentum suum quod A. P. in brevi Inquisition ' huic consut ' nominat ' sustinuit damna occasione Trangress praedict ' per H. in praed ' brevi nominat ' prout in eodem brevi fit mentio ad 40 s. pro mis ' custag ' ipsius A. P. per ipsum circa sectam suam in hac parte appositis ad 40 s. In cujus rei c. In this Writ to Enquire of Damages in Trespass the Jury cannot find that no Trespass is done Neither may the Sheriff make such a Retorn but if the Jury will find no Damages the Sheriff must make his Retorn accordingly CAP. XIV Where and in what Cases the Sheriffs Retorn of a Devastavit shall be good or not and the late practice in such Cases THe Defendant pleads plene administravit and Sheriff concluded to make any retorn contrary to the Verdict Verdict is for the Plaintiff this estops the Sheriff of the County where the Trial was to Retorn Nulla bona for he is concluded by the Verdict to make any Retorn contrary to it but the Sheriff of another County shall not be so concluded But the Sheriff of the County where the Writ is brought ought to Retorn a Devastavit and thereupon the Plaintiff shall have Process into another County 2 Leon. n. 90. p. 67. Noon's Case 1 Anders 32. And the Question further was If a Testatum shall issue into another County before the Sheriff of the County where the Writ was brought had retorned a Devastavit and not Resolved but without doubt its the safer way to do it upon the Retorn The principal Case was Debt in London against an Executor upon plene administravit it was found for the Plaintiff the Plaintiff assigned the same to the Queen and a Scire fac ' issued out of the Exchequer against the Defendant c. into the County of D. and the Sheriff retorned Nulla bona c. which was not good causa qua supra
a Prisoner in the Fleet for other Causes which is the Prison of the Common Bench and the Warden informs the Court of it and the Court commands him to retain him in Execution until satisfaction of the Judgment yet he is not in Execution because he was not brought to the Bar by Habeas Corpus and viewed and demanded of the Prisoner if he be the same person who is Condemned or not and it is the Office of the Court to oppose him Dier 13 14 El. p. 306. pl. 63. So if the Warden inform the At the Prayer of the Party or not the Court of Chancery that J. S. which is Prisoner there on a Judgment is in his Ward for certain Causes on which the Court commands the Warden to Retorn him in Execution until satisfaction of the Judgment yet J. S. is not in Execution upon the Judgment because this was not done at the request of the Plaintiff but without his Prayer for it may be he will Elect another Execution Dier 306 63. In Debt against J. S. if the Defendant be taken upon a Latitat and committed to the Marshal for default of Bail and after the Plaintiff recovers against him he continuing in Prison yet he shall not be in Execution for this Judgment before the Prayer of the Plaintiff M. 4 Jac. B. R. Car. and Copping If a Man recover in Debt and Outlaw The On Cap. Utlegat Defendant after Judgment and after within the year the Defendant is taken by Cap ' Uslagatum he shall be in Execution for the Plaintiff before Prayer because the Outlawry was at the Suit of the Party 5 Rep. 88. Garnons Case H. 41. El. B. R. Bonner and Stackley Otherwise it is if he be taken in Execution after the year because in that Case he may not have any Capias against him Hill 38. El. B. R. Norton and Sharp But if a Man Outlaw the Defendant in Debt after Judgment and after within the year the Defendant is taken by Cap ' Utlagatum altho' he be in Execution for the Plaintiff prima facie yet he may make Election that it shall not be an Execution for him 44 El. B. R. Shaw and Cutter If Execution by default be Awarded in a Scire fac ' Scire fac ' upon a Judgment in Debt and the Defendant four years after was in the Fleet for other Cause and by Habeas Corpus he was brought up to the Common Bench and being opposed by the Court if he were the person who was condemned ut supra and he grants it he Tho' after the year and day shall be committed in Execution at the Prayer of the Plaintiff as it seems tho' it be after the year and day Dier 214 147. If A. recover against B. by Judgment in the Kings Bench and upon this B. renders himself to Prison and after brought a Writ of Error and had a Supersedeas yet after upon Prayer of the Plaintiff the Court may commit him in Execution Writ of Error Bail altho' that the Record be removed forasmuch as he had not found Bail upon his Writ of Error p. 9. Car. 1. B. R. Symonds Case How and in what Cases the Sheriff may break open an House to do Execution The Leading Case in this Point is Semaines Case reported by my Lord Coke in 5 Rep. and in Crokes Eliz. 98. out of which I shall Collect these â—ollowing Resolutions The Case was A Joynt Termor of an House with B. dies being bound in a Statute The Sheriff Retorns him dead Conusee Sues another Writ to extend his Lands which he had at the time of his death or after and what Goods he had at the time of his death The Sheriff Impanels a Jury to enquire what Goods c. and it was found there were divers Goods of the said deceased at the House of B. in London And the Sheriff came with the Jury to view Appraise and seise them for this Debt and the Defendant Surviving Termor premissorum non ignarus shut the Door and disturbed him to make Execution It was resolved First Upon Recovery the Sheriff may break On habere fac ' possessionem open an House and deliver it to the Plaintiff for the Writ saith habere fac ' seisinam or possessionem And after Judgment it is not the House of the Defendant in Right Secondly upon a Capias ad satisfaciend ' the Defendant may not break open any Mans House to make Execution but in all cases when the Door is open the Sheriff may Enter to make Execution of Body or Goods Thirdly In all Cases where the King is Party so on Hue and Cry if no Door be open the Sheriff may break open the House to take him or to do Execution or other Process as upon a Cap ' Utlagat ' or upon Contempt But he ought first to signifie the Cause of his coming and request the Owner to open the Door but not to break open any Mans House by night Fourthly Upon a Fieri fac ' or Extendi fac ' the Sheriff may not enter into the House of any the Door being shut nor draw a Latch no not after request and denyal yet tho' the Sheriff be a Trespassor in breaking open the House by Fieri fac ' yet the Execution is Good Fifthly The House of any one is not priviledged but for himself and his Family and his own proper Goods not to protect any who flie there or the Goods of another conveyed there and in such case after request the Sheriff may break open the Door but in the principal Case he did not request it and so the shutting the Door by the Defendant was lawful and no Action lies against him And as for the Allegation of premissorum non ignarus it is too general and Notice ought to be specially alledged that he Notice was Sheriff and what he came to do and the Defendant being a Stranger to the Execution he is not bound to take notice of the Sheriffs intent Upon a Fieri fac ' a Barn which stands in the Field may be broken by the Sheriff because it is not part of the Dwelling-house and there needs no request aliter had the Barn been adjoyning and parcel of the House Siderfin 186 187. Pentons Case 1 Bulst 146. Foster and Hole But tho' a Sheriff cannot break open a House being to take Execution by Fieri fac ' yet when the Door is open that he enters then he may and ought to break open the Door of an Entry or Chamber which is locked or break open any Chest which is locked and take the Goods and if he do not an Action of the Case lies against him 1 Browl. Rep. 50. Diversity was taken in White and Wiltshires case where the Execution is lawfully begun there the Sheriff or his Officers may break the House to mak Execution otherwise when it is not lawfully begun If one be Arrested by the Sheriff and he escapeth to his own House
aut in manus dicti dom Regis capi aut seisiri possint Quae quidem manerium terr tenementa praedict cum pertinentiis Ego praefat Vic. die captionis hujus Inquisitionis cepi in manus dict dom Regis per Extent praed In cujus rei testimonium tam ego praefat Vic. quam Jurat praed huic Inquisition sigilla nostra alternatim apposuimus die anno loco supradict ' c. A. B. Armig. Vic. Extent on a Statute-Merchant issued out Retorn against R. the Conisor the Sheriff Retorned That the Conisor was possest of divers Goods and seised of Lands which he delivered to the Conisee and that the Conisee accepted of the Land and because the Sheriff did not Retorn That he had not any other Lands Goods or Chattels It was Adjudged Insufficient and a new Writ awarded tho' some held it was well enough in the Case of a Conisor but not in the Case of a Purchaser 1 Brownl 37. Fletcher and Robinson Note If the Conisor be Retorned dead Execution If the Conisor be dead how Execution to be shall be granted against his Executor without Scire fac ' to have Execution of his Goods so against the Heir and Tertenants of his Lands without a Scire fac ' Quaere 15 H. 7. 16. b. 2 R. 3 8. b. If the Sheriff do not Retorn the Capias or retorn Tardè or that he directed it to a Bayliff of a Franchise he shall be punished and yield Damages to the party grieved according to the Statute of de Mercatoribus W. 2. c. 39. Two Inquisitions taken at several days by several Juries upon one Statute-Merchant were Adjudged naught One was taken of the Lands and the other for the Lands and Goods 1 Brownl 38. If another had these Lands in Execution by Elegit or is in by discent in such Cases the Sheriff shall Retorn the special Matter i. e. in the first Case that he hath extended the Land of the Defendant But he cannot deliver the same to the Plaintiff for that another had the same in Extent before The Sheriff having an Extent upon a Statute may gather the Goods all into one place to be viewed and appraised by the Jurors and he is not a Trespassor Mo. 563. Attorney General vers Crocker As to what Lands c. shall be extended upon Statutes c. it does not properly belong to this Treatise which hath a respect only to the Office of Sheriff Note If Lands delivered in Execution on a Scire fac ' and New Writ of Execution where Statute-Merchant Staple or Recognizance or upon recovery of Debt and Damages are lawfully recovered or evicted out of the possession of the Conisee before his Debt and Damages be satisfied he shall have Scire fac ' c. and upon this a new Writ of Execution or Re-Extent to levy the residue per Stat. 32 H. 8. c. 1. 1 Inst 289 290 5 Rep. 87. Note also It is a Question in 2 Brownl 270. By whom King James Incorporated the Mayor Bayliffs and Burgesses of Berwick and granted to them the Execution and Retorn of all Writs Whether an Extendi facias shall be Executed by them or by the Sheriff of Northumberland Some said Berwick is English which appears by the Act of Parliament which confirms the Letters Patents and also they send Burgesses to Parliament Others said It is a part of Scotland and a Sheriffwick An Obligation there shall not be Tried in England and it is not in the County of Northumberland nor part of it By Siderfin p. 382. our Laws are not current there But yet in Jackson and Crisp's Case Local breach of Covenant at Berwick Tried at Belford in Cumberland 2 Brownl 270. 2 H. 7. 31. 26 H. 23. Retorns on Scire facias Scire facias is a Writ Judicial directed to the Sheriff c. and is usually to warn a man to come and shew Cause to the Court c. why Execution of a Judgment shall not be done But this Writ shall not be granted before the year and day past after Judgment given Conisor in a Recognizance dies Scire fac ' Retorn not agreeing with the Writ goes against his Executors Haeredes terrarum c. Sheriff Retorns That he had no Executor Scire feci W. H. filio haeredi praedict M. le Conisor This Retorn agrees not with the Writ yet it may be good 3 Rep. 15. Sir William Herbert's Case Scire fac ' on a Recognizance in Chancery against C. who was Retorned dead then a second Scire fac ' issued against the Heir of C. and against the Tenants of the Lands of C. which he had tempore Recognitionis vel postea The Sheriff Retorned C. Tertenant and omitted to Retorn any thing against the Heir This a Non-retorn of the Sheriff and not a Mis-retorn and is not aided by any of the Statutes of 32 H. 8. or 18 Eliz. or 21 Jac. of Jeofail The Heir must be summoned as well as Tertenant on a Recognizance It s Error The Tertenant without the Heir ought not to be charged therefore the Heir ought to be summoned for the Heir may have a Release to plead or other Matter to bar the Execution Also if the Heir be within Age the Parol shall demur and the Tertenant shall have advantage thereof And a new Scire fac ' issued ad Informand ' Curiam and the Retorn was That he had not any Lands in his Bailywick that descended to his Heir nor any Heir within his Bailywick and good enough tho' it had been better if he had Retorned who was Heir and that he was warned or that there was not any Heir in the said County Cro. Car. 295. Eyres and Taunton The Writ Commands the Sheriff to give The words of the Writ not answered in the Retorn Notice to the Tenants of the Land in Fee-simple and the Sheriff Retorns not That those which he had Retorned were Tenants of the Land in Fee-simple and so the words of the Writ are not answered 1 Brownlow Rep. 145 146. The Sheriff may Retorn 24 Tertenants of the whole and every Tenant may plead in discharge of himself or he may Retorn That each is Tertenant of so many Acres 2 Keb. 601. Henshaw's Case Scire fac ' to have Execution on a Recognizance The Sheriff Retorns the Conisor dead other Scire fac ' Issues against the Tertenants of the Conisor on which the Sheriff retorns a Scire feci to W. and R. Tenants and further that there was no Heir nor any other Tenants quibus Scire fac ' poterit la forme 1 Keb. 621. 2 Sanders 6. Jefferson and Moreton Scire fac ' against the Heir and Tertenants the Sheriff Retorns no Heir and the Tertenants appear la form 2 Sanders Jefferson's Case Scire fac ' to Tertenants the Sheriff retorns they are Summoned la foâ—me 2 Sanders 6 8 232. Scire fac ' ad audiend ' errores must be
vid. Dalt 236. The Judgment is Ideo Utlagat Coronator ' 1 Inst 288. The profits of Lands of the Person Outlawed in personal Actions the Sheriff may seise without any Office and also the Goods CHAP. XX. Where and in what Cases Action lies against a Sheriff for a Rescous and what Action Diversity between Mean Process and Execution Where the Sheriff makes himself chargeable by his Retorn Where and what Remedy against the Rescouser by Action or Indictment Of Retorn of Rescous What is good or not Of Laying the Action and how to Declare Of Rescous and Pleadings in it The Venue in this Action Of Rescous Where and in what Cases Action lies against the Sheriff for a Rescous or not IF in the Arresting the party is rescued be it on Execution or Mean Process no Action for this lies against the Sheriff And if the Prisoner be Arrested on Mean Process and as he is bringing to the Gaol he is rescued no Action lies against the Sheriff for the Sheriff cannot be supposed to have the Posse Comitatus upon every Mean Process aliter if it be upon Execution there Caveat Vicecomes But if he be Arrested Diversity between Mean Process and Execution as to Rescous upon Mean Process and brought to the Gaol then it s no good Retorn for him to say the Gaol was broken and so he was taken from him And therefore Action on the Case was brought against the Sheriff of London and Middlesex on Escape they plead they had taken the party on a Latitat and that in bringing him from Islington to the Gaol Rescous was made of him from them and so Retorn the Rescous 16 Ed. 4. 3. Bastard Faulconbridges Case 2 Bulst 198. May and Proby Cro. Jac. 419. Mo. 852. Cro. El. 868. Noy 40. 1 Roll. Rep. 388. Rol. Ab. 99. Mesme Case Popham 192. Per Cur. The Plea and Retorn is good notwithstanding Waldoe and Lamberts Case 44 El. B. R. and that upon the former differences and the difference between Mean Process and Execution was inforced in this Case If the Sheriff take one in Execution for Debt and after he suffers him to Escape the debt is gone and the Process served therefore in such case if he should not have his remedy by way of Action against the Sheriff he should be without remedy But not so in Mean Process for there the Party may be taken again Action of Debt lies against the Sheriff upon a Cap. retorned qd ' cepit Corpus and he was rescued 2 Rolls Rep. 57 58. No Rescous can be on a Scire fac ' for Goods but in such case the Party shall have Action on the Case And a Rescous lies only on a Capias which lies against the person and Cro. Car. 515. Sly and Finch's Case which is full as to the Point and was as follows Lit. Rep. 297. the Sheriff of Surry and Alderton's Case Hetly 145. Mesme Case Scire fac ' was brought against Finch Sheriff of Glouc ' for that the Plaintiff having brought a Fieri fac ' directed to Finch he retorned that he had taken Goods into his Hands to the value of 72 l. and had sold as much of them as amounted to 11 l. and the residue remained pro defectu emptorum till such a day at which time he putting them to sale they were rescued from him upon which retorn the Scire fac ' was brought to shew cause why the remaining Debt should not be levied on his Goods To this the Defendant Demurrs All agreed that the Retorn is not good But the Question was Whether he hath charged himself by this Writ Cro. Car. 515. Sly and Finch Sanders 340 343. Mildum and Smith 2 Keb. 789 821. Mesme Case And per Cur ' he is chargeable by this Retorn Where the Sheriff makes himself chargable by his Retorn If he had retorned only qd ' remanent pro defectu emptorum therein he had done his Office and in such case on the Election of a new Sheriff a Distring as Vicecomit ' shall Issue to sell the Goods and to deliver the Money to the new Sheriff But when he saith further that they were rescued out of his Hands therein he hath misdemeaned himself And by Dodderige the Sheriff Vend ' exponas hath charged himself by this Retorn as well in regard of his Misdemeanor as also that he hath his remedy over against the Rescoussers Nor can the Court award a Writ of Venditioni exponas because it s against his own Retorn But if it be objected that perhaps he had seised the Goods again so as he may sell them on a Venditioni exponas if so then he ought to have pleaded Plead it to the Scire fac ' and it had been good Action on the Case Lynn and Cunninghams Case It was a great Question if one shall have Action against the parties that rescued Three Judges were of Opinion he should tho' it was well objected if he shall have Action against the party he shall also have Action against the Sheriff and so betwice satisfied and the Sheriff shall have Action against the party and so he shall be twice charged By Richardson a Man in some case shall have Election of Action and both are but to recover Damages a man had an Execution against one another saw the man and conveyed him out of sight Action on the Case lies against him and perhaps the Sheriff is dead and he shall have no remedy Harvy ad idem The Law gives a man Remedy against the party that doth the wrong If an Action on the Case will lie for hindring a Sheriff in Executing his Office as it was adjudged in Semain and Greshams Case 5 Rep. Ã fortiori when it is actually done and he is rescued out of Custody Cro. ad idem that the Action will lie there is a mischief on both sides the Defendant may be twice charged and the Plaintiff may lose his Debt and if the Sheriff brings the Action he may plead the Recovery by the Plaintiff When the Sheriff made his Retorn of the rescous there is no remedy against him and if the party taken be rescued before he be brought to the Gaol there is no remedy against the Executors of the Sheriff If Debt be brought against the Sheriff and in that a recovery the Plaintiff shall never take the Defendant again and so if he bring Action against the party and recovers the Sheriff may plead that and Fitz. N. B. 12 is doubtful Hutton contra That the Action doth not lie The difference is good where a man is arrested upon mean Process and rescued and after becomes nonsolvent so that they who rescued him are the cause of the loss of my Debt it is a wrong upon which he may be Indicted yet the party shall not have remedy against him because he may proceed Yelverton of the same Opinion and agreed the difference By Hutton upon mean Process the Sheriff never had remedy for the
Sheriff arrests him and suffers him to escape an Action lies against the Sheriff shewing this Special Matter and he shall recover his Damages having regard to the loss of his Debt 1 Roll. Abr. 537. And so is the Bayliff of Newcastle's Case Escape on Mean Process of one in Prifon for want of Bail lies against Bayliff of a Franchise One brought an Action against J. S. before the Mayor Bayliffs and Stewards of N. where the Bayliffs are the Gaolers of the Town-Prison and J. S. is Committed to the Bayliffs on Mean Process for want of Bail and they let him at Large before Judgment and Execution and after the Plaintiff recovers against him The Plaintiff may have a Special Action against the Bayliffs for the Escape for by it he is deprived of the speedy means to have him in Execution after the Judgment 1 Roll. Abr. 99. The Bayliffs of Newcastle's Case On Executions If the Sheriff suffers one taken by him in Execution to Escape the party at whose Suit he was taken in Execution may have an Alias capias against the party that escaped to take him again in Execution or an Action on the Case against the Sheriff Pract. Reg. 145. If the Sheriff takes one by Capias ad satifaciend ' Action lies tho' the Writ be not retorned in Debt if he after permits him to go at Large and Retorns not the Writ yet Debt lies on this Escape for there is a Record of which the party shall take advantage tho' the Writ be not Retorned Cro. El. p. 16. Clipton's Case Action on the Case upon Escape of Escape on Cap. Utleg one brought in Execution by force of a Cap. Utlegat ' is tam pro dom ' Rege quam pro seipso and the party shall have all in Damages An Action on the Case Tam pro dom ' Rege quam pro seipso was brought for that he had a Capias Utlegat ' after Judgment against J. S. and delivered it to the Sheriff of D. to execute it who seeing J. S. and being desired to execute it would not do it but suffered him to go at Large and afterward the said Sheriff Retorned Non est inventus Per Cur. The Action is well brought and the King is to have the benefit thereof as well as the party And in his Declaration he Declaration need not cite the whole Record but begin at the Judgment quod non recuperasses for it is but a Conveyance to the Action and it s not necessary to shew the whole Record and it sufficeth to begin at that which is the Cause of Action Cro. Jac. 532. Parkhurst and Powell Cro. El. 877. Eden and Floyd Cro. Jac. 360. Barret and Winchcomb Who shall have an Action of Debt or Case upon Escape or to whom it shall be said an Escape or not at Election And this is to be considered in the Case of a Capias Utlegat ' or a Capias pro fine or where one shall be said to be in Execution without prayer of the party and where not If a Cap. ad satisfac issue upon a Judgment in On Cap. Utlegat Action of Debt and the Sheriff Retorn Non est inventus and thereupon he is Outlawed and afterwards a Capias Utlegat ' issues out against him upon which he is taken and Imprisoned and after is permitted to go at Large the party who recovered shall have Action of Debt upon this Escape against the Sheriff for he was in Execution against him also because he cannot have a new Capias ad satisfaciend ' And if he escape altho' he was taken at the King's Suit yet the party had such Interest in the Body that Where one taken on Capias shall be in Execution at the Suit of the party without Prayer he shall have Action of Escape against the Sheriff and before the Plaintiffs Prayer to have him in Execution he is in Execution at his election So that if the Sheriff suffer him to go at Large before the Plaintiff hath determined his election it s an Escape against the Plaintiff if he will and an Action of Debt lies Yelv. p. 20. 1 Roll. Abridgm 810. 5 Rep. Garnon's Case A. recovers in Debt vers D. in Banco Communi and sues a Capias ad satisfac and an Exigi post cap. and Outlaws the Defendant who brought Error in B. R. and Judgment affirmed and within the year a Cap. Utlegat is awarded and the Defendant taken and the Sheriff suffers him to escape before the Retorn of the Writ Action lies against the Sheriff The Defendant here being taken by Cap. Utlegat out of the Kings-Bench shall be in Execution for the Plaintiff presently after the Arrest if he will altho' he was never brought into Court nor the Court committed him in Execution for the party 5 Rep. Garnon's Case As to a Capias pro fine Note In all Cases when the Plaintiff may On Cap. pro fine he shall be in Execution at the Suit of the party have a Capias ad satisfaciend and the Defendant is taken by Capias pro fine he shall be in Execution for the Plaintiff if he will without Prayer As a Capias pro fine on Recovery in Assumpsit and also a Cap. ad satisfac retornable the same Term at one and the same Retorn and as to the Capias pro fine the Sheriff Retorns Cepi corpus and as to the Cap. ad satisfaciend Non est inventus If the Sheriff in such case takes the party by Capias pro fine now upon this taking he is in Execution for the party and if the Sheriff let him go at Large he shall answer for the Escape 1 Leon. 51. Hudson and Leigh So if a man be taken by a Cap. pro fine for denying his Deed in an Action of Debt and is suffered to go at Large he who Recovers shall have Debt against the Sheriff for the Capias is ad respondend ' tam nobis quam parti 7 H. 4. 4. So in Recovery on Forger of False Deeds if the Defendant be Imprisoned for the Fine at the Prayer of the King's Attorney if he be suffered to go at Large before satisfaction to the Plaintiff he may charge him for the Escape because he is in Execution to the party upon the Prisal at his election For he ought to be in Execution at the Suit of the party before Suit to the King because the Suit of the party is the Original and the Fine but accessary because of the Suit 7 H. 6. 6. b. But if a man be taken by Capias pro fine for Where no Capias lies in the Original he shall not be in Execution before Prayer of the party the King where no Capias lies in the Original as in Assize with Force c. and suffered to escape before Prayer of the party to be in Execution for his Damages the party shall not have Escape against the Sheriff because he would not be in Execution for
Warrant Per Cur. The Traverse is idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put in Issue and not the Traverse 1 Brownl 197. Hatton and Hunn Action on the Case upon Escape was brought against a Serjeant of London He pleads that the Sheriff commanded him to deliver his Prisoner to him which he did and Traversed that he was guilty of the Escape Aliter vel alio modo Per Cur. The Serjeant is an Officer of the Sheriff and the usual manner of Pleading is to plead That the Prisoner was in custody of the Sheriff and Sheriffs in London may make their Houses their Prisons as well as the Counters and the Bar was good but the Traverse was ill Siderfin Traverse That he is guilty of the Escape Vid. supr p. 318. Husband and Cole 2 Keb. 147. mesme Case This Plea is a Confession and avoidance and the Traverse is ill But per Cur. here is no Escape confessed and therefore Not guilty should have Not guilty been pleaded and not to take a Traverse Debt against the Sheriffs of London upon Escape of A. The Plaintiff Declared on an Execution by force of the Recovery and that the party was in the Prison of Ludgate sub custod ' J. S. J. D. then Sheriffs 1 H. 8. and that he so continued sub custodia J. B. J. G. 2 H. 8. and so continued sub custodia J. N. J. L. 3 H. 8. and then was suffered to escape J. N. and J. L. pleaded That before the Escape at such a Day Anno superiùs in Narratione specificato the said J. D. and J. S. adtunc Vicecomites suffered him to Escape Per Cur. It is no Plea because there was three years specified in the Declaration and it shall be taken that it was the first or third of H. 8. Plea to be precise as to time when they were out of their Office yet it is meerly induced by the adtunc Vicecomites which shall lead the Intendment to be in the year in which the Defendant supposeth they were Sheriffs But per Cur. that sufficeth not but the Plea must be alledged in Fact and therefore the Defendants meaning to discharge themselves by former Escape which was not in their time should alledge it precisely Dyer 66. Serjeant Minor's Case In Debt for an Escape of one in Execution Defendant pleads Nil debet and after Issue and the Cause entred for Trial the Defendant would acknowledge the Action with relicta verificatione But per Cur. this he may not do without the assent of the Plaintiff for many defects are aided by Verdict Sir Tho. Jones Rep. 156. Marshall and Cooling's Case The Plaintiff chargeth the Defendant with an Escape 13 Ap. 18. Jac. and the Defendant pleades Escape 29th Feb. 16 Jac. which was a year and two days before the Escape alledged by the Plaintiff to which the Defendant made no answer and altho' he concluded it was the same Where the time is material the conclusion that it was the same Escape will not make it good Escape which makes the Plea good where the time is not material yet in the principal Case the time seems to be material for the Defendant the Marshal Pleads that the Prisoner was committed to him by Habeas Corpus and that he remained in his Custody from such a time till such a time during all which time the Plaintiff never prayed to have the said Prisoner in Execution Bridgmans Rep. p. 7. Moor. vers Sir G. Reynel In an Escape The Defendant confessed that Supersedeas pleaded but the Retorn of the Wit mistaken H. was in his Custody by Latitat retornable Mercurij Crast Animarum but said that a Supersedeas came to him which varied from it reciting a Writ Retornable die Veneris Crastino Animarum for which variance the Plaintiff Demurred as being not the same Action which the Court agreed 1 Keb. 234. Earl of Bedford against Austin In Action on Escape in Debt on Judgment Protection Defendant Pleads That after he was arrested he was discharged by Protection shewed to the Bayliff as Servant to the Earl of Bath Per Cur ' the Plea is naught 1 Keb. 660. Cockman and Symonds In Action on the Case on Mean Process Sheriff Pleads That a Writ of Priviledge came to him Teste Marquess of Newcastle Retornable at Privilege of Sessions pleaded Sessions Which recites that by the Law of England persons shall be priviledged in going to and retorning from the Sessions To which the Plaintiff Demurrs and the Court held the Plea to be ill yet the Court were in doubt upon a second motion whether the Priviledge shall extend to such inferior Courts Also it is ill pleaded not shewing where the Writ issued nor where the Sessions was nor whether the Discharge were in Session Siderfin p. 269. Clark and Mollinuex 3 Keb. 845. Mesme Case In Action on Case for Escape and false Retorn The advantage of pleading the Statute 23 H. 6. lost by Demurrer if the Sheriff Demurs generally upon the Declaration he loseth the advantage of Pleading Stat. 23 H. 6. c. 10. vide supra Benson and Welby Venire In Action of Escape Venire shall not be charged nor in Debt For these may be all over England 1 Keb. 65. Wright and Martin Stiles Rep. 341. By the Marshals Priviledge the Jury on Escape were changed out of London into Middlesex 2 Keb. 818. Crook and Mosedale Hale said he knew him after Imparlance ousted of this Plea but here the Court would not put him to Plead it but granted a Tryal in Middlesex and Escape in London being so every where Cro. El. 625. Venire is most proper to be from the place where the Escape was Action is brought against the Defendant as Sheriff for the Escape of R. in Norfolk and falsely retorning non est inventus in B. R. the false Retorn is not the principal but the Escape is the cause of Action and the false Retorn which is also made in Norfolk is but Aggravation the Party may lay it in either County 2 Keb. 771. Russel and Sucklin Where the Venire and Retorn differ its not good Hetly 83. Per Cur. No Cost shall be on Non-suit in this Action by the Stat. 32 H. 8. Of Escape being pleading in Bar. It has been adjudged as well on Scire fac as in Debt that to plead he was in Execution and contra voluntatem of the Sheriff escaped is no Plea No tho' it were by permission vid. ◠Keb. 305. Ridly and Morslee Cro. Car. 24. Robinson and Clapton Vilner's Case Allenson and Butler Symonds and Cottmar To a Scire fac ' on Recognizance as Bail in Escape by consent Error Defendant Pleads that the Plaintiff after Judgment sued a Capias ad satisfaciend ' out of the Kings Bench and that the Defendant was thereupon taken and that he escaped by consent of
were with Child to Certifie how long time in their Judgments quando sit paritura The Sheriff Retorned That she was Twenty weeks gone with Child and that within Twenty weeks fuit paritura Whereupon another Writ issued out of the Common-Bench commanding the Sheriff safely to keep her in such an House and that the Doors should be well guarded and that every day he would cause her to be viewed by some of the Women named in the Writ wherein they were named and that when she should be Delivered some of them should be with her to view her Birth whether it be Male or Female Upon this the Sheriff Retorned He had caused her to be kept c. and that such a day she was Delivered of a Daughter Cro. El. 566. Willoughby's Case But in Theaker's Case the Woman to be Inspected was a Feme Covert to a second Husband and she was with Child by the first they took not the same course but left her with her Husband he entring into Recognizance that she should not remove from the House wherein they inhabited and that one or two of the VVomen Retorned by the Sheriff should see her every day and that two or three of them should be present at her Travail Cro. Jac. 685 686. Theaker's Case The Sheriffs Office about Partition and how he is to demean himself therein At the time of the Partition made the High-sheriff He must be upon the Land in person must be upon the Land in person And if Exception be taken at the Bar before the Writ be retorned and filed a New Writ shall be awarded but if the Sheriff in such case Retorneth That he was there in proper person No Averment against the Retorn filâ—d and this Retorn be received and the Writ filed the party cannot Aver against the Retorn nor shall have Error Cro. El. 9. Clay 's Case In a Writ of Partition if Judgment be given quod partitio fiat and upon this a VVrit is directed to the Sheriff to make partition before that this is Executed and Retorned no VVrit of Error lies upon the first Judgment because before the last Wheâ— Writ of Error lies upon Pâ—rtition or not Judgment which ought to be Qd ' partitio praed ' foret forma stabilis in perpetuum the Plaintiff may be Nonsuited or he may upon the Sheriffs Retorn suggest to the Court That the Partition is not equal and also have a New Partition 1 Rolls Abridgm 750. The Lord Berkley and the Countess of Warwick The Form of the Retorn of a VVrit of Partition vide Dalt c. 68. Sheriffs Office about removing a Force The party grieved may have a Writ supon the Statute of Northampton 2 Ed. 3. cap. 3. directed to the Sheriff to remove the Force and upon this the Sheriff may imprison and justifie in False Imprisonment as was Levett and Farrar's Case and so may the Under-sheriff as that Case was In False Imprisonment against the Sheriff the Defendant Justifies for that a Writ upon the Statute of Northampton was awarded 30 July 32 Eliz. to the Sheriff and Justices of the Peace to remove a Force and that he being Under-sheriff by the Commandment of the Sheriff went to the place and found the Force and because he was not able to remove it he made Proclamation That every one should depart and leave their Weapons c. and afterwards he enquired of the Force and it being found that the Plaintiff was one of them he arrested him and imprisoned him Cro. Eliz. 294. Levett and Farrar Per Cur. The Plea is good And these Points Plea were Adjudged 1. When the Writ is directed to the Sheriff by the name of his Office and not by a particular Name nor doth expresly Command him to do it in person the Under-sheriff may do it Done by the Under-sheriff for its a Writ grounded on the Statute and not a Commission for then it had been otherwise 2. He may Arrest and Imprison at another time upon the Enquiry tho' the Force were removed before his coming and he may Enquire who did it 3. It shall be intended he continued Under-sheriff when in the same Plea it is alledged he was Under-sheriff and the contrary is not shewed 2 Roll. Rep. 178. If when the Sheriff comes to remove a Force if then one hide himself in the Corner of the House to the intent c. this is Force The Sheriffs Office in a Vi Laica removenda In False Imprisonment the Defendant Justifies Justifies in False Imprisonment because a Writ De vi Laica removendâ came to the Sheriff to remove the Force and that the Sheriff came to the House and the Defendant in Assistance of him c. and that there the Plaintiff in domibus praedict ' ad pacem dom ' Regis disturband ' c. eos residentes invenerit Plaintiff demurs 1. The Writ is Si aliquos in ea parte resistentes inveneâ—itis and it is not here pleaded That he found him resisting in eâ— parte i. e. to keep possession But per Cur. the words in eâ— parte ought to be necessarily intended For when he saith He came to the House to remove the Force and the Plaintiff resisted him then sequitur that he resisted him in removing the Force 2. The Writ is aliquos and the Defendant had shewed Resistance by one only But per Cur. aliquos includes aliquem 3. He doth not aver that it was vis Laica armata potestas But per Cur. it appears there was Force and the very Resistance was a Force 2 Roll. Rep. 177. Parson Clossey's Case Upon a Vi Laica removenda if the Sheriff Retorn Non inveni vim Laicam nec armatam potestatem the Lessee shall have Restitution in B. R. Restituâ—ion upon Affidavit that he was kept out with Force Upon this Writ the Sheriff ought not to remove the Incumbent who is in Possession of the Church be it by right or wrong for the Sheriff is only to remove the force and is to suffer the Incumbent to enjoy his Possession More 462. Roberts and Agmondsham How Sheriff is to Demean himself in Proclamations In real Action Vid ' Dower As to Acts of Parliament in former times Proclamations ought to be with Writ to the Sheriff to Proclaim 2 Rolls Rep. 172. Yet if a Statute be not proclaimed the Offences against it are punishable Dr. and Stud. 146. b. How the Sheriff shall Demean himself in a Writ of Inquiry of Wast And of the Sheriffs Retorn thereupon And of the Writ of Estprement In an Action of Wast upon Issue joyned a Jury is Summoned to try the Cause and in the interim to view the place wasted and the Sheriff is to retorn the view As to the President vid. 2 Sanders 254. Grene and Cole The Sheriff must go in person to the place The manner of the view wasted by Stat. W. 2. c. 14. accedat ad Locum vastatum together
Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a Vâ— Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest suâ—mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded
to the VVrit of Assize That the VVrit was retorned coram nob ' apud Westm ' not saying ubicunque sed non allocat The Court being here it s well enough and the Reason is because it was for the Plaintiffs convenience that it was ubicunque 2. It was Summon ' XII without an M. over VVhich per Cur ' is well enough in Numeral Letters 3. It was qd ' sint ibi Aud. which should be ad Audiendum as Reg. 198. b. But per Cur. This may be intended Auditur ' and so is well enough without ad 4 It was Si fec whereas it should be Si fecerit sed no allocat and a Respondeas ouster awarded 3 Keb. 326. Creek and Norfolk Quare Impedit In a Quare Impedit The Defendant must be Summoned by the Sheriff And this Summons may be made in Church or to the Parson the Sheriff Retorns Nihil upon the Summons and upon the Attachment and upon the Distress the Plaintiff shall recover If the Defendant comes not at the Distress retorned against him the Plaintiff shall have a VVrit to the Bishop without making any Title Dyer 241. A VVrit of Enquiry of value in a Quare Impedit was executed the first day of the Retorn but the Jury did not give their Verdict till two days after Retorn of a quid Juris Clamat Vid. Dalton c. 71. The Sheriffs behavior in the Writ and Inquisition and Retorn of Malefactoribus in Parcis Vid. Cro. Car. 439 The King against the Inhabitants of Epworth and 17 other Villages and Statute W. 2. c. 46. Co. Mag. Chart. CHAP. XXVIII Of Retorns of Clericus Beneficiat ' Of other Retorns as to Clarks The Sheriffs Office in a Quare Impedit Sessions of the Peace The Sheriffs Office as to Election and retorning of Knights and Bugesses to the Parliament The Form of Indenture for the Knights of the Parliament and Burgesses The Sheriffs Retorn of the Writ for Electing Parliament Men. Retorns of Clericus Beneficiat ' c. AT the next County Court after delivery of the Kings Writ to the Sheriff for the Electing Parliament Men Proclamation shall be made by the Sheriff in full County of the day and place of Parliament and all they who are present shall attend and in full County proceed to the Election of their Knights for the same County and after they are chosen the Names of the persons chosen shall be written in an Indenture under the Seals of the Electors and tacked to the said Writ of Parliament Stat. 7. H. 4 15. Upon any Retorn contrary to this Statute of 8 H. 6. c. 7. the Sheriff shall forfeit 100 l. to the King and have one years Imprisonment and shall forfeit another 100 l. to the person chosen Knight of the Shire and not duly Retorned The chosers must have 40 s. per Annum Freehold within the said County The choice must be between 8 and a 11 of Clock in the Forenoon Every Sheriff after receipt of the Kings Writ for Electing Knights of Parliament ought forthwith to make out his Warrants under the Seal of his Office to every Mayor and Baliff of Cities and Burroughs within the County reciting in his said Warrants the Writ of Parliament commanding them thereby to chuse Citizens and Burgesses to come to the Parliament scil if it be a City to chuse Citizens for the same City by Citizens and if it be a Burrough to chuse Burgesses by Burgesses or Freemen of the same Burrough And those Mayors and Bayliffs must make a lawful Retorn of that Precept to the Sheriff by Indentures made between them and their Sheriff of their Election and of their Names which are elected 23 H. 6. 15. And the Sheriff must set his Hand and Seal of Office to one part of the Indentures and then deliver it to them to be kept and to the other part the Mayor or Citizens or Burgesses must set their Hands and Seals and deliver it as their Deeds to the Sheriff to be certified and retorned by him with the Writ of Summons to the Clerk of the Crown and all this under pain of 100 l. to the King and Imprisonment for one year and the Party grieved or other person in his default shall recover another 100 l. But they must commence their Action within 3 Months after the commencement of the Parliament and Mayor and Bayliffs shall pay 40 l. Dyer 113. Pl. 118. Note Action on the Case lies against a Sheriff for Retorning other Knights for the County than were elected and it is against the Statute of 7 H. 4. for false Retorn and 23 H. 6. c. gives Debt in the Case and it s not in the Negative and so does not exclude from other Remedy 2 Siderfin 168. Nevile and Strowd Now the Names of the said Knights shall be Retorned into the Chancery by Indenture Sealed between the Sheriff and the Chusers of the Knights in manner following The Form of the Indenture for the Knights of Parliament Haec ' Indentura facta in pleno Comitat ' Warr ' tent ' apud Burgum de Warr ' de c. Anno Wilâ—ielmi Tertij c. inter A. B. Mil. Vic. Comitat. praed ex una parte J. C. Mil. A. C. Armig. F. P. F. K. c. multas alias personas Comitat. praed electores duorum Militum ad Parliamentum in Brevi huic Indenturae consut specificat ex altera parts qui ut major pars totius Communitatis praed tunc ibid. existens Jurat examinat secundum vim formam effectum diversorum Statutorum inde edit ' provisor Eligerunt E. P. Mil. J. C. Mil. infra Comitat. praed commorantes Gladiis cinct ' milites habiles magis idoneos discret dantes concedentes praedict duobus Milit. plenam sufficien postestatem pro se tot Communitat Comitatis praedict ad faciend consentiend jis que ad Parliaementum in dicto Brevi content de Communi Consilio Regni dicti Domini Regis nunc Angliae contingerit ordinari super neâ—otiis in dicto Brevi spec In cujus rei Testimonium uni parti hujus Indenture penes dictum Dominum Regem remanen partes praed sigilla sua apposuerunt alter vero parti ejusdem Indenturae praed Vic. sigillum suum apposuit Dat' die Anno Loco supradict c. The Form of Indenture for the Citizens and Burgesses THis Indenture made c. reciting the day and year and the Kings Stile at Lage prout supra Witnesseth That by Vertue of a Warrant to me directed from Sir O. R. Knight Sheriff of the County of Warwick for the Electing and Chusing of two Burgesses Men of good Understanding Wit Knowledge and Discretion for Causes concerning the publick Wealth of the Realm to be at his Majesties High Court of Parliament to be holden at Westminster the day of next coming I E. L. Mayor of the Borough or Town of Warwick with the whole assent and consent of the rest
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
shew the time and place of the Arrest was That the Defendant should not let at Large any Prisoner arrested without the Sheriffs Warrant The Plaintiff shews the Defendant had let such a Prisoner at Large at Westminster c. it is good without shewing the time and place of the Arrest For the Escape is the Material part of the Covenant and the manner of the Arrest is not in Question and whether he were legally taken or imprisoned was not material when he was suffered to go at Large Siderfin p. 30. Jenkin's Case The Condition of the Bond was Whereas For a Bayliff of an Hundred to make true Retorn of all his Writs Pleading S. was Sheriff of Surrey and made T. Bayliff of the Hundred of B. Now if he should execute his Office c. and make true Retorn of all Writs directed to him then c. Defendant pleads on Oyer particularly performance to all Plaintiff Replies Process was directed to him to levy Issues on J. S. and that he made his Warrant to T. to Execute the same which Warrant he did not Retorn On Demurrer Judgment was against the Plaintiff because he did not shew that the Issues were to be Levied in the Hundred of B. For tho' the words are general to make Retorn of all Warrants directed to him yet it was to be understood of such only as were to be Executed in his own Hundred of which he was Bayliff Allen p. 10. Slaughter and Day 2 Sand. 414 415. mesme Case cited there Debt on Bond by Under-sheriff to defray the Expence of the High-sheriff and Performance To pay the Expence of the High-sheriff pleaded Plaintiff Replies J. S. recovered in Charges in carrying the Prisoner from Chelmsford to London not shewing it was done by virtue of Habeas corpus Defendant Rejoyns This was by private Agreement Plaintiff Demurs because it was not Concluded to the Country Per Cur ' There must be a Compulsion shewed by Habeas corpus to the Sheriff of Essex without which he cannot deliver him over to another Sheriff and then there is an Allowance upon the Account in the Exchequer in case of Transporting being Signed by the Judges And the Court gave leave to Discontinue 3 Keb. 448 Lewen and Allcock As to the Form of the Indentures and Covenants between the High-sheriff and Under-sheriff vide Dalton Greenwood of Courts and several other President Books CHAP. XXXIII Of Sheriffs Accompts AS for the Periods of Time wherein the manner of the Sheriffs Accompting to the King have been altered by Acts of Parliament and Practice you may peruse a Learned Treatise of the late Lord Chief Justice Hales touching Sheriffs Accompts You find there how the King's Farms were anciently Answered by the Sheriffs and the manner of the Collecting of the Kings Revenues of the County Now that which was Firmi Comitatus were the Vicountiel Rents and they came under various denominations viz. Blanch-Rents Albo firmae Praestatio pro pulchrè placitando Visus Frankpledg ' Redditus ad Turnum Certum Letae and these were in time contracted to a sort of Annual Revenues And the uncertain Annual Revenue was called Proficuum Comitatus which in ancient Times was considerable when most Law-Suits were Transacted in Counties and in Hundred Courts Fines Issues and Amerciaments in those Courts and in those elder Times they were considerable The Farm of the Bailywick of one County was let at 100 l. per Annum temp H. 3. but by Stat. 27. H. 6. c. 10. the Sheriff is restrained from Letting his Bailywick to Farm But these were formerly and now are answered at two Terms in the year Michaelmass and Easter and are called proferae Vicecomitis or Sheriffs proffers But it is as it were a Mock-payment now being so inconsiderable most Causes being tryed in Superiour Courts for upon Account he generally has all his Proffers paid and allowed to him again Vide â—he Statute of 4 H. 5. 2. 34 H. 8. c. 16. Since the Statute of 34 H. 8. c. 16. the Sheriffs might discharge themselves of the Casual Charges or Annual uncertain Charges and most ordinarily after this Statute did discharge themselves of the entire Firmae de proficuis Comitatus and they ascertained to the Court that there were no such profits beyond the charge in collecting them or that the charge of keeping the County Court the Tourn and Hundred Courts which were the things that made up the Firma de proficuis surmounted the benefit And this Making appear was no other than the Oath of the Sheriff and the Statute gives him that benefit Yet tho' the Sheriffs did use to discharge themselves by their Oaths of the entire Fermae de proficuis Comitatus and of a great part of the Vicountiels yet till Anno Dom. 1650. these entire Farms were constantly written out in Charge to the Sheriff upon the Summons of the Pipe tho' it was but a piece of Formality But now the Firmae de proficuo Comisat ' is wholly put out of the Charge of the summons of the Pipe by an Order made in the Exchequer 1650 which is followed to this day By the Act in Car. 2. Entituled An Act for the preventing the unnecessary delays of Sheriffs in passing their Accounts No Sheriff shall be charged in Account to answer any illeviable Seisure Farm Rent or Debt or other thing which was not writ in Process to him or them to be levied wherein the persons of whom or the Lands or Tenements out of which together with the Cause for which the same shall be so levied shall be plainly and particularly expressed but shall be thereof wholly discharged without Petition Plea or other trouble or charge whatsoever If the Sheriff shall seise the Goods of one that is Outlawed c. and does not accompt for the same the Owner of the Goods may have Action of Trespass upon such Seisure and shall recover the Goods or the value thereof in Damages For the Sheriff must plead that he has accounted for them otherwise he shall be a Trespassor ab initio Note The Sheriff is Accountable in respect of his Office but if he be made sine Computo he has by this the Profits to his own use 1 Roll. Rep. 183. O. N. in the Exchequer makes the Sheriff Debtor to the King and the Debtor himself Debtor to the Sheriff Hob. 206. Speake and Richard's Case CHAP. XXXIV Of Coroners How the Coroners must be chosen and the Credit the Law gives to them and how when they shall be discharged The Demeanours as to Outlawries Coroners Inquest Of Coroners c. THe Office of Coroner ever was and yet is 4 Rep. 41. Heydon 8 Rep. 41. Grâ—nly's Case 5 Rep. Specot's Case 4 Rep. 45. Wrote's Case 9 Rep. 31. Strat. Mar. 5 Rep. 108. de Wreck 10 Rep. Denband St. 28 Ed. 3. c. 6. Elect. of â—oroners Vid. 4 Inst 271. Mag. Ch. 17. cap. W. 1. c. â—0 Artic. super Chart. c. 3. Eligible in full County by
the Freeholders by the Kings Writ De Coronatore Eligendo And so was the Sheriff in former times Eligible and the Sheriff was chosen by Writ directed to the Coroners The Coroner because he is Elected by the Freeholders of the County by Writ and retorned of Record in the Chancery albeit the King dieth remaineth Now seeing the Coroners are Elected by the County if they be insufficient and not able to answer such Fines and other Duties in respect of their Office the Country as their Superiour shall answer for the same If a Certiorari be directed to the Sheriff only in case of Appeal or Indictment of Death it is not sufficient to remove the Cause for the Coroner is Judge of the Cause and not the Sheriff only the Sheriffs have Counter Rolls with the Coroners 3 H. 7. c. 1. gives to the Coroner a Fee of 13 s. 4 d. upon the View of the Body and of the Goods of the Murderers But nothing on Misadventure 1 H. 8. c. 7. W. 1. c. 10. Coroner is an Officer for the King but he is not an Officer when he comes between the parties and the Court will not suffer Examination when the Testimony may be vivâ voce 2 Rol. Rep. 461. Altho' the Coroner takes Examination yet in the Case of the King it is at the discretion of the Judges if he will allow them or take them vivâ voce 2 Roll. Rep. ibid. Before the Stat ' Artic super Cler. 3. the Coroner of the Verge by himself might Enquire of Murder But because the King's Court often removed into another County by reason whereof no Enquiry could be made that Statute was made to remedy it and one person may be Coroner of the King's Houshold and Coroner of the County and yet they are two Coroners c. Quando duo jura concurrunt c. 2 Leon. p. 160. Borow and Holcroft Where Process shall be awarded to the Coroners or not When the Sheriff is Plaintiff in Action of Waste Election shall go to the Coroners Hob. 85. Vide Plowd Wimbish and Willoughby VVhere VVrits shall be directed to the Coroners and where not A Sheriffs Bond for Appearance is sued the Writ upon it ought to be directed to the Coroner because the Bond is to be sued in the Sheriffs Name Pract. Reg. Upon a Venire fac ' awarded to Coroners and Retorn two Coroners Retorn this and two Coroners Retorn the Distringas where at the time of the Retorn there were four Coroners this is not good because all the Coroners ought to make the Retorn and joyn in it they being Ministers and not Judges Hob. Rep. Lamb and Wiesman This Case is Reported by Cro. Jac. 383. in the Exchequer-Chamber The Venire fac ' being awarded to the Coroners was Retorned by T. B. and T. R. Coroners whereas at the time of the Writ awarded and retorned there were two other Coroners viz. VV. S. and T. P. and the Retorn ought to have been in the Name of the four Coroners Per Cur. It 's not Error 1. Because it ought to have been taken by way of Challenge at the time of the Trial and forasmuch as he hath not challenged it he shall not now assign it for Error 2. Admitting it were Error assignable at Common Law yet now being after Verdict is aided by the 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