contrary Sir Tho. Jones p. 39. Fawcett and Cotton CHAP. X. Of Venire facias Habeas Corpora Juratorum and Distringas VVhat Retorns shall be good on a Venire c. or not Amendments of Venire's c. Of Tales Venire fac ' Habeas corpora Distringas Of the Statutes of Jeofails THe principal Statutes of Jeofails are 8 H. 6. c. 12 c. 15. 32 H. 8. c. 30. 18 El. c. 14. 21 Jac. c. 13. 16 17 Car. 2. c. 8. 8 H. 6. c. 12. extends to any Record Specialty Copy c. 2. Parol 3. Plea 4. Warrant of Attorney 5. Writ Original and Judicial 6. Pannel 7 Retorn But by it misprision of Clarks are only amendable But it extends not to an Insufficient Trial where the Venue is mistaken It extends not to a Retorn of a Sheriff where it should be by a Coroner Nor to a Trial by one not retorned in the Venire fac ' Nor to a Retorn of a Venire fac ' without the Name of the Sheriff Now these Misprisions are not remedied by 8 H. 6. c. 2. 32 H. 8. nor 18 El. c. 4. Viz. Where the Retorn is by the Sheriff where it ought to be by the Coroner when the Sheriff does not put his Name to the Retorn of the Jury when no Retorn is on the Venire fac ' nor when one gives a Verdict who is not retorned nor to Insufficient Trials where the Venue is mistaken 8 Rep. Blackamore's Case By the Stat. 21 Jac. c. 13. After Verdict Judgment shall not be arrested for that the Venire fac ' Hab. corpora or Distringas was awarded to a wrong Officer upon any insufficient Suggestion or that the Venue was in some part misawarded or issued out of more or fewer places than it ought to be so as some one place be right named Or for misnaming any of the Jurors either in the Sirname or any addition in any of the Writs or Retorns thereof so as constat de persona Or for a want of retorn of any of the said Writs so as a Pannel be retorned and annexed thereunto or for that the Officer's Name is not set to the Retorn No Acts of Jeofails extend to Appeals or Pleas of the Crown nor to Actions or Informations on Penal Laws except in 16 17 Car. 2. other than concerning Customs Subsidies of Tonnage and Poundage to which it extends not But the Stat. 21 Jac. helps not if the Christian Name of a Juror be mistaken and the Law notwithstanding Codwell's Case 5 Rep. Roll. 176. and Cro. Jac. 458. Goddard's Case remains as it was But it s amendable per Stat. 18 Eliz. as a discontinuance of Process as Teppet on the Venire and Tippet on the Distringas was amended So Samuel in the Venire and Daniel in the Nomina Jurator ' If there be no Venue it s aided by 16 17 Car. 2. after a Verdict if the Cause be tryed in the proper County where the Action is laid 2 Sand. 227. Perry's Case in Skinner's Case Vide infra If the Plaintiff deliver the Venire to the Sheriff Venire with â— Proviso Tardè so late that he cannot serve it the Defendant shall have a Writ with a Proviso but at the same time the Plaintiff may have another Writ and the Sheriff may not retorn which of them he pleaseth the Proviso ought to be quando duo brevia sunt in eodem gradu qualitate 8 H. 6. 6. If the default be in the Plaintiff after Issue in the prosecuting of the Venire facias then the Defendant may have a Venire facias with a Proviso but not an Habeas corpus with a Proviso until the Plaintiff have made a default in the same Writ For he ought only to have the same Process with a Proviso in which there was a default of the Plaintiff first and therefore tho' the Defendant had a Venire facias with a Proviso upon a default of the Plaintiff yet he cannot have a Nisi prius by Proviso without another default of the Plaintiff Note The Venire ought to be delivered to the When thâ— Venire ought to be delivered to the Sheriff Sheriff four days before the Retorn of it if the Jury dwell forty Miles off and eight days if they dwell further from the place where the Trial is to be Pract. Reg. 87 333. The Name of the Sheriff to the Distringas and Tales are of necessity and to the retorn of the Habeas â—orpora by the Statute of York 12 Ed. 2. c. 5. and these are not holpen by any of the Statutes of Jeofails Cro. El. 310. Steyner and James Cro. Jac. 188. Holdswrith's Case Cro. El. 509. Blodwell's Case 482. Weare's Case What Retorn shall be good in a Venire or not and what shall be Error and what amendable Insufficient Retorns are aided by the Statute Omission of Jeofails As upon the retorn of the Venire fac ' there wanted these words Quilibet Jurator ' per Legios This is not as if there was no Retorn at all And per Cur ' its an Insufficient retorn which is aided and it was awarded to be amended for the omission of Pledges is but Matter of Form and not like to Dr. Hussey's Case where there was a want of an Original And so in 2 Roll. Rep. 87. the Sheriff retorns a Venire fac ' viz. Executio istius brevis c. and the Pannel of the Jurors was filed to it but under the Names of the Jurors he omitted to file the Pledges Cro. Jac. Moor and Blackwell 2 Roll. Rep. 87. In the Writ of Venire fac ' awarded to the Sheriff of Somerset the word Vicecomiti was omitted yet he retorned the Pannel and his Name was endorsed Per Cur ' it is Error but because upon the Roll it was Vic' Somerset it was amended Cro. Car. 595. Sloper and Child Venire fac ' was album breve i. e. no Name of the Sheriff was endorsed It was denied to be amended 1 Brownl 43. Bullen and Jarvis The retorn of a Venire by one Sheriff of London is ill and not helped by the Stat. 21 Jac. But a Certiorari Coronatoribus where there is but one is well enough Hob. 70. 1 Keb. The King against Percival A Venire facias was awarded in the time of Variance Queen Elizabeth and a Distringas with Nisi prius in the time of King James reciting quod distringat Juratores nuper summonit ' in Curia nostra whereas in truth there had not been any Summons in Curia of the King but of the Queen only and Trial and Judgment thereupon and it was Reversed for this Error For this Distringas Distringas Nisi prius with Nisi prius is a special Authority to the Justices who being Justices by the special Commission and not having Authority to take any Jury but such as was summoned in Curia Regis there being none such the Trial by the Jury was Erroneous Goodwin's Case cited in
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
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
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
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
may be on the Essoyn-day A Writ Retorn may be on the Essoyn Day Appearance shall not abate if the Retorn be quarto die post If a man be bound to appear the first day in Term in Court he may appear the first day of the Essoyn and then have his Appearance recorded and this is good 2 Bulst Bedoe and Piper Note Where the Writ or Process is directed to the Bishop there the Bishop is to make Retorn thereof And so where the Writ is directed to other Persons as Coroners they are to make Retorns General Rules of Retorns Deputies are allowed in Ministerial Offices But all Retorns made by them are to be made in the Name of the Principal Officer 3 Bulst 78. The Sheriff must retorn true and not contrary to the Record if he do he falsifies all his Proceedings L. brought Trespass against J. G. Widow hanging the Suit she takes D. to Husband Judgment was against J. G. and a Writ was directed to the Sheriff qd ' caperet J. praedictam per nomen J. G. ad satisfaciend ' c. the Sheriff cannot now retorn that she was married Crok Jac. 323. Doley and White The Retorn must not be contrary to the former Retorn If the Sheriff retorn upon the Venire Retorn of Jurors fac ' 12 Jurors upon the Distringas he may not retorn one had nothing for this is against his former retorn 19 H. 6. 38. For if he had at first and alien since yet it is chargeable with Issues But if the Land be recovered by Eign Title in the mean time he may retorn it with this Conclusion Et issint nihil habet Id. ibidem So if he had Land in the right of his Wife and she is dead in the mean time The Sheriff is to put his Name to every Retorn made by him or the Retorn is to be void By the Statute of York 12 Ed. 2. c. 5. 1 Bulst 73. The Statute appoints that he who Retorns shall add his Name to the Retorn and it is sufficient if it be his Christian Name and Sirname and the name of his Office is not requisite Crok Car. 189. Bethell and Parry Plowd 63. tho' in Scrogs Case More 548. saith the Name of Office must be subscribed as well as by the Sheriffs Christian and Sirname but by Coroners only the name of Office If the Sheriff arrest one upon Mean Process and doth not Retorn the VVrit he is a Trespassor and therefore Stiles Pract. Reg. 276. is not Law where he saith it is not requisite that the Sheriff in making a Retorn should insert his Title or name of Dignity or Christian or Sirname but only his Name of Office Before the Statute of York 12 Ed. 2. c. 5. Rast Ret. of Sheriffs fol. 345. no Name was used to be put to the Retorn of the Writ by the Sheriff nor any other Minister or Officer which was inconvenient upon which complaint was made to this Parliament and so remedied The Retorn of the Venire fac ' was executio istius Brevis patet quodam panello huic Brevi annex ' Tho. H. nuper Vicecom ' and then the now Sheriff added these words istud Breve sic indorsat ' fuit mihi J. R. Vic' deliberat ' per Tho. H. Mil ' nuper Vic' in executione Officij sui it 's sufficient for T. H. ought to put his Name to the Retorn For nuper Vic' shews he was not then Sheriff he ought to have put his Name to it T. H. and then the new Sheriff ought to subscribe istud Breve sic indorsat ' c. Plowd 63. 5 Rep. 41. 2 Rol. Rep. 209. Bethers and Parry Vide infra Cro. Car. 289. contra Retorns must be made according to the Ancient Course and according to Presidents As Waste was assigned in S. the Retorn must not be qd ' accessit ad S. but ad locum vastatum vide infra 27 H. 8. Rol. 2. Dalt 162 163. So a Retorn of non inveni partem for non est inventus it 's Error and not amendable 9 H. 6. fo 12. Mercer was outlawed at the suit of H. it was moved to avoid the Outlawry because the Sheriff retorned the Exigent on the back of the Writ thus viz. superdictus Mercer where it ought to be infra nominatus Mercer for nothing was written above but within But by all the Justices the Retorn was good So if he had writ the Retorn on the inner side of the Writ Dalt 164. Surplusage is no hurt to the retorn of a Writ as in Elegit and the Sheriff retorns that to be executed the extent of the Church of St. Andrews alias dict' St. Edes and the true name is Andrews yet good Winch. p. 27. In Scire fac ' retornable in B. If the Sheriff retorn Scire fac ' c. qd ' sit coram vobis ad faciend ' qd ' Breve requirit Altho' vobis had relation to the King where the garnishment ought to be coram Justiciariis yet good for those words ad faciend ' qd ' Breve requirit comprehend all 29 Ed. 3. 33. adjudged every Retorn must exactly answer the Writ Statutes aid Misretorns and insufficient Retorns but not where there is not any Retorn Cro. Car. 587. Becknam None can make the Retorn of a Writ but such a person who at the time of the Retorn remains an Officer to the Court Vide infra Retorn of a VVrit is not Traversable vide infra Or against the Retorn of the Sheriff there is not any Traverse Averment or Answer Per Maynard in Searl and Longs Case Mod. Feigned Retorns mischievous Rep. 248. It 's a great abuse in Officers to retorn such feigned name the first cause of which was the ignorance of the Sheriffs who being to make Retorns and looking into the President Books for the Form and finding John Doe and Richard Roe put for Examples made their Retorns accordingly and took no care for true Summoners and true Manucaptors And he cited a Cause Judgment was entred in B. in a Plea of Quare Impedit upon non-appearance to the Grand Distress but there the Party was summoned and true Summoners retorned Upon Non-appearance an Attachment issued and real Summoners retorned upon that but upon the Distress it was retorned that the Defendants districti fuere per Bona Catalla Manucapt ' per J. Doe R. Roe and for that cause the Judgment was vacated Note When the Grand Distress is awarded it Grand Distress is that the Sheriff is commanded to seise the thing in question If the Defendant be taken then at the retorn Rule to the Sheriff to retorn his Writ of the Writ the Plaintiffs Attorney at the day of the Retorn of the Writ may give a Rule at the Clerk of the Rules for the Sheriff to retorn his Writ or if he go out of Office then a Distringas to the new Sheriff to distrain the old Sheriff to retorn his Writ But if the
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
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
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
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
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
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
him go It s an Escape unless the Attorney's hand were to it or a Supersedeas delivered 1 Keb. 873. Collet's Case If a man recover against Baron and Feme and Debt lies upon Escape of the Wife take both in Execution and after the Wife is suffered to Escape tho' the Husband continue in Prison yet Debt lies upon this Escape against the Sheriff in which all the Debt shall be recovered for this was the Debt of the Wife and she is as fully in Execution as the Husband And Debt lies on it as well as Action on the Case So if the Feme be only taken in Execution 2 Bulstr 320. 1 Roll. Abr. 810. Dr. Sutloff and Sir G. Reynel 3 Bulstr 150. 1 Roll. Rep. 204 205. Cro. Jac. 657. Whiting and Sir George Reynel Where the Sheriff shall be so chargeable with a Prisoner as to Escapes Where the Action will lye and in what Cases not The Entry of a Committitur upon the Roll In respect of the Entry on the Roll of Committitur shall not charge the Marshal for Escape if there be any after for then it should be in the power of every Attorney to charge the Marshal A Committitur was Ruled to be vacated to the intent the Plaintiff should be at liberty to take out what Execution he will But if the party after such Committitur entred be in the Marshals Custody and then escape the Marshal shall be charged for Escape Siderfin 220. Conny and Jacob. Therefore let the Student beware of the Opinion in Keble 1 Keb. 775. in this Case of Conny's where he tells you the Entry of a Committitur alone is sufficient to charge the Marshal as in Execution for Escape of a Prisoner without actual proof of his being in Execution But the better Opinion is in 1 Keb. 375. in Pettyware and Hamson's Case The Course has been always of late that in case Committitur be entred on Record yet it must be proved he was in Custody since that time because it is the usual Course to enter a Committitur against every Defendant tho' he be upon Bail Wherefore the Court ordered the Marshal to shew whether one were in Custody or not Capias ad satisfaciend ' was delivered to the Sheriff versus J. S. and after the Sheriff did arrest J. S. by force of a Capias Utlagat ' and then the party in the Capias came to the Sheriff and prayed that the party may remain in Execution for his Debt also And the Sheriff suffers him to go at Large and upon both Writs Retorned Non est inventus Per Cur. The Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff in Escape and it is not like where one is in the Fleet for Execution there if other Condemnations in other Courts be Notified to the Warden of the Fleet he shall be chargeable with them all 1 Leon. 263. Scire facias lies not on the Escape of a Bail if no Scire fac ' issued out against him for the Sureties ought not to be taken in Execution presently The Condition of Recognizance of Sureties is That they bring in the Defendant if he be Condemned or to pay the Debt Now if no Scire fac ' issues out against him the Surety being taken cannot plead the Release of the Plaintiff or the death of the Defendant in his Discharge as he might do upon Scire facias 2 Leon. p. 29. Devered and Ratcliff Of Escapes as to the Old and New Sheriffs and Delivering over The Sheriffs of London by Indenture deliver Escape in Law over J. S. in Execution at the Suit of A. and B. severally and only mention the Execution of A. J. S. escapes B. brought Debt against the ancient Sheriffs on this Escape It well lies For he cannot be in Custody of the New Sheriffs for this Execution because they were not charged with this Execution and the fault was in the Old Sheriffs that they omitted this Execution of the Plaintiff in their Indenture and the Escape began eo instante that the Ancient Sheriff delivered the Prisoner to the New for then they cease to have the Custody of him and although he remain in the Rules of the Prison it s an Escape in Law 3 Rep. Westby's Case The Old Sheriff Arrested one upon a Latitat and at the day Retorned Languidus c. and afterwards in exitu ab Officio suo delivered him to the New Sheriff as a Prisoner for this Cause and the New Sheriff suffered him to go at Large This is an Escape in the New Sheriff and an Action of the Case lies against him and tho' the other Sheriff retorned Languidus c. yet this is not material to the Plaintiff he remains always in Prison Cro. Jac. 380. King versus Sir Eusebius Andrews If the Sheriff takes a man in Execution and after a New Sheriff is made and before the other Sheriff delivers over the party who was in Execution escapes The New Sheriff is not chargable for this Escape but the Old Sheriff for the New Sheriff is not chargable with any Prisoner before delivery to him 2 Roll. Abr. 457. Sheriff Skinner's Case One in Execution is willingly let go out of Prison by the Gaoler and then came into the Gaol again then a New Sheriff is and then he makes Escape By Hobart on a Trial at Guild-Hall the New Sheriff cannot be chargable with him nor answerable for him as in Execution for the Execution by such Escape was utterly discharged Neither can two Sheriffs be Answerable simul semel for two Escapes out of one and the same Execution at the same time Hob. 202. Sheriff of Essex's Case One taken in Execution on Ca. sa by the Under-sheriff he took Money of him for the Execution and let him go Then the Sheriff dies and a New Sheriff is and the same Under-sheriff and a new Ca. sa is taken out against the party upon which he was Arrested again and escaped By Hobart the New Sheriff is not Answerable the second taking in Execution being never lawful Hob. p. 202. If the Old Sheriff keep any Prisoner after he is discharged of his Office it s an Escape 2 Leon. 54. Smallman and Lane If one taken upon a Cap ' Escape and the Sheriff die and a new Sheriff be made for the remainder of the Year then the same person is taken by another Cap ' for the same Cause and Escape This will not charge the new Sheriff Hob. p. 202. If the Prisoner walk abroad and returns in the time of one Sheriff and escape in the time of another Sheriff this is no Escape in the time of the second Sheriff Hob. 202. A. was taken in Execution in the time of the New Sheriff shall be charged in Escape upon a new Execution Old Sheriff and then escaped and afterwards in the time of the new Sheriff the Plaintiff again sued a Scire facias against A. upon the said
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
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 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
of Justification and it is not double 7 Ed. 4. 20. Plowd Comment 86. a. Where the Sheriff justifies by Execution he Retorn of the Writ must plead that he retorned the Writ secùs of a Bayliff 1 Leon. p. 144. Parkes and Mosse If a Bayliff justifie by force of a Warrant he Warrant need not say hic in Cur ' prolat ' for the Warrant doth not continue in his hands but he retorns it to the Sheriff 1 Roll. Rep. 327. Curtis and Dowty p. 221. Bateman's Case Tho' the Proceedings in a Court be irregular On Irregular proceedings in a Court Warrant yet if the Court has power to issue out a Capias by this Warrant the Officer may justifie in False Imprisonment Mod. Rep. 173. If a Bayliff justifie by reason of a Warrant he ought to shew the place where the Warrant was made It sufficeth if it be shewed in the Rejoynder 5 H. 7. 24. Justification by Mean Process The Sheriff ought to Retorn his Writ otherwise The immediate Officer must shew the Process Retorned Justification is not good But it is not so with the Servant False Imprisonment was brought against the Sheriffs Bayliff he Justifies by the Sheriffs Warrant on Latitat who arrested the Plaintiff and required the Defendant to be aiding to him but pleads not That the Writ being Retorned was executed Yet per Cur. its good for the has no means to reinforce the Sheriff to make Retorn thereof Cro. Car. 446. Girling's Case In Action of False Imprisonment the Defendant Justified by Process to the Bayliff out of the Court of the Honour of P. and does not shew any Process was Retorned which as Girling's Case is being an immediate Officer must be shewed contra of an Under-Officer And altho' he need not shew forth the Letters Patents yet it must be specially pleaded such a Court was granted and that virtute c. 2 Keb. 156. Haywood and Wood. If the Defendant in Justification of an Arrest pleads That a Bill of Middlesex was prosecuted against the Plaintiff by which the Sheriff made and directed a Warrant to arrest him it shall Bill of Middlesex intended to be delivered to the Sheriff before the Arrest be intended that the Bill was delivered to the Sheriff before the making of the Warrant till it be specially shewed to the contrary In this case he Justifies by Writ to the Sheriff and Warrant to himself 1 Sand. 299. Green and Jones The Causes of Demurrer were because it s not shewed the Writ was delivered to the Sheriff nor the Warrant made before the Arrest and also for that it s not averred that the Writ was Retorned But non allocantur this is no essential Matter nor Traversable And the Plaintiff might have Replied That the Arrest was before the delivery of the Writ else the Court will intend it to be delivered being said that Virtute of a Writ directed to the Sheriff and warrant the Defendant arrested and the Writ needs not to be Retorned by a Bayliff-Errant 2 Keb. 338. mesme Case p. 838. 844. So in Scire fac on Recovery in Action on the Case the Defendant pleads no Capias issued out against H. delivered to the Sheriff Plaintiff Replies a Capias issued out and Non est inventus Retorned but says nothing of the delivery to the Sheriff Defendant Demurs and Judgment pro Quer ' for the Delivery to the Sheriff shall be intended 3 Keb. 668. Holmes and Araker Bail for H. The Time when a Latitat issued forth is As to the Time of the taking out the Writ actually and the Teste of it Traversable and may be averred otherwise than according to the Teste Per totam Curiam for a Relation shall not work a Wrong 2 Keb. 173 198. Bolton and Johnson If a man be taken in the Vacation by a Warrant without a Writ and a Latitat be procured Teste in the Term that Teste shall not discharge the Wrong done after the Teste and before the actual taking out of the Writ but the Plaintiff may take Issue that he prosecuted truly But in Trespass and False Imprisonment the Defendant as Sheriffs-Bayliff Justified by a Latitat Teste 27 June Trin. Term past The Plaintiff Replies That the said Writ was really and actually prosecuted out of B. R. on the 9th of August which was after the Arrest of the Plaintiff Defendant Demurs And per Cur. this is an Estoppel especially in case of a Bayliff whose Warrant might be before the Arrest and all Writs must be Teste as of the Term and the Sheriffs not Retorning the Writ or the not having any shall not prejudice his Under-Bayliff But per Cur. a good Action will lye against the Sheriff or Bayliff of a Franchise in this Case But in Plunket and Green's Case in the same Reporter In Trespass and False Imprisonment against the Sheriff and Bayliff the Defendant Justified by Warrant on Writ to the Sheriff as Long and Bolton's Case The Plaintiff Replies No Writ was then taken out Defendant demurrs and Judgment pro Quer ' for tho' the Bayliff hath Warrant and no Writ a Warrant yet he is liable if there be no Writ contra if the Writ be void and delivered 2 Keb. 705. Plunket and Green And in Bennet and Filkin's Case Trespass and False Imprisonment the Defendant Justifies by arrest on Latitat Plaintiff Replies The Writ was taken out after the Arrest Defendant demurs Per Cur. the ante-date of the Writ will not suffice if the proceeding be after And Judgment pro Quer. 3 Keb. Chancy and Rutter And as to Pleading as to the Time Richardson and Pricket's Case is to be observed The Plaintiff supposed the Arrest and Imprisonment to be 10 Decemb. 29 Eliz. Defendant pleads by virtue of a Warrant from the Sheriff he did arrest and imprison him the 2d and 3d day of December before absque hoc that he was guilty before or after c. Plaintiff Replies He was guilty of the Trespass c. after the 3d day of December prout in Narratione suâ specificatur and Issue upon this and well enough tho' he saith only he was guilty after the 3d day but saith not and before the Action brought For when it s said He was guilty after the 3d day c. prout c. it is to be intended to be the 3d day and the day of which he Counted Cro. El. 95. Richardson and Pricket To all the Imprisonment but 11 Hours the Defendant pleads Not guilty and to the Imprisonment for 11 Hours he Justifies as Sheriff for that the Plaintiff hindred him in the Execution of his Office and said nothing to the Vi armis yet good 1 Sand. 78. But this Case went further 2 Keb. 237. the Trespass and False Imprisonment was laid the 1st of April the Defendant Justifies at another day at Warw. as Sheriff absque hoc that he was guilty the 1st of April or at any time before or
after while he was Sheriff or at any other place Per Cur. This Traverse is Traverse of the Time sufficient and the Plaintiff must reply and shew if there were any other Assault or Imprisonment Also the Traversing the Time before and after doth not lock up the Plaintiff from assigning another day and place especially the thing being Local 1 Sand. 78. 2 Keb. 237. Law and King Justification in False Imprisonment by a Writ of Supplicavit de bono gestu out of Chancery and arresting him by the Sheriffs Warrant thereupon The Justification being by an act in the same Time quae est eadem Transgress County and justifying all the Time in the Declaration tho' it do not agree with it in the Day but concludes quae est eadem Transgressio is good enough the Day not being material and the Replication is not good if it vary from the Day in the Declaration Cro. Car. 228. Tyler and Wall The Case was Trespass c. ultimo die Octob. 6 Car. and detaining him in Prison for two days Defendant justifies because 13 Aug. 6 Car. a Writ of Supplicavit issued and by Warrant from the Sheriff to the Defendant he arrested the Plaintiff 21 Sept. and detained him two days c. quae est eadem Transgressio c. In False Imprisonment in London versus W. Place quae est eadem Transgress Defendant justifies in Norfolk by force of a Warrant to the Sheriff quae est eadem Transgressio absque hoc that he is guilty in London Plaintiff demurrs generally 1. Because the Plea is double for the Justification Traverse double in Norfolk quae est eadem Transgressio had been sufficient without more and then the Traverse makes it double But per Cur. you shall not take advantage of this upon a General Demurrer General Demurrer 1 Roll. Rep. 221. Bateman and Woodcock 2. He Justifies by Warrant and saith not hic Warrant hic in Cur. prolat in Curia prolat Per Cur. They need not shew this in Court for it appears to be executed and that the Warrant is retorned to the Sheriff And so for this last Point is 1 Roll. Rep. 327. Curtiâ— and Dowty's Case In False Imprisonment the Defendant justifies Justification local as Sheriff the taking the Plaintiff by force of a Capias directed to him at D. within his County of G. where the Plaintiff declares of an Imprisonment in another County there the Traverse of the County is good For the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff and so the Justification is Local 3 Leon. 97. in Partridge and Pool's Case The Defendant justifies the Arrest quousque Justification Bond given to appear in B. R. absque hoc that at any time he did Arrest without reasonable Cause until he gave such Bond. Plaintiff demurrs generally Per Cur. The Justification is good and the Plaintiff should have Traverst absque hoc that Traverse he was arrested and detained till Obligation to appear in B. R. 3 Keb. 165. Dawson and Rawlinson False Imprisonment Defendant justifies by Arrest De injuria sua propria to a Justification by virtue of â— Latitat and Warrant by virtue of a Warrant of the Sheriff on a Latitat The Plaintiff replies De injuria sua propria absque tali causa This is naught upon Demurrer being Matter of Record but Issue being taken upon it and being in the Affirmative it s a Jeofail and good after Verdict Judgment pro Quer ' 1 Keb. 125 164. Beesly and Walker So Osborn and Brook's Case The Defendant justifies in False Imprisonment because a Writ of Vi Laica removendâ came to the Sheriff to remove the Force The Plea need not say they found him resistentem in eâ parte Vid. supra tit Vi Laica removenda President Traverse That the Defendant was in Custody by force of a Warrant made upon one Writ and not by Warrant upon another 1 Sand. 19. Pleading by the Sheriffs Baliffs Justification in Trespass Trover c. On Execution Where the Sheriff justifies by Execution he must plead That he Retorned the Writ Secus of a Bayliff 1 Leon. 134. Parkes and Mosse In Trover of 300 Sheep 1 Dec. 36 El. Defendant pleads That he was Sheriff of Com. Linc. and that J. S. recoverd against the Plaintiff 100 l. and upon that a Fieri facias which Writ was Retornable Crastin animar 35 Eliz. that this was delivered to him 1 Octob. 30 El. that he on the 20th of October took the said 300 Sheep and on 22 Oct. sold 104 Sheep for 40 l. and that the other Trover and no Conversion confest in the Plea 192 Sheep remained pro defectu emptorum and at the same Day of Crastin animar he Retorned the said Writ and all this Matter the which is the same Conversion absque hoc that he Converted them aliter vel alio modo Per Cur. The Plea is insufficient 1. Because by his Plea he doth not confess any Conversion and then the Traverse is ill He ought upon this Matter to have pleaded Not guilty and given it in Evidence 2. Because the Declaration supposeth the Trover Trâ—verse and Conversion to be the 1st of Dec. 36 El. and he justifies the Conversion in Octob. 35 El. so he meets not with the Plaintiff in time and therefore he ought to have Traversed it and the Traverse aliter vel alio modo to what it â—xtends Traverse aliter vel alio modo shall never answer to the time but to the manner of the Conversion 3. He makes not any Justification for four of the Sheep but that he seized them but he shews not what he did with them Cro. El. 433. Ascue and Sanderson Scire fac upon a Judgment in Debt Defendant That the Sheriff levied the Debt a good Plea in Scire fac pleads a Fieri fac directed to the Sheriff of L. for levying the Debt and he by force of it took divers Sheep of the Defendants for the Debt and yet detains them Per Cur. It s a good Plea altho' he do not alledge that the Writ is Retorned and altho' the Writ is Conditional Ita quod habeas denarios c. for the Plaintiff hath remedy against the Sheriff and the Execution is â—awful which the Defendant cannot resist So Rooke's Case vid. ante If in False Imprisonment the Defendant justifies Where De injuria sua propria is not a good Plea by a Capias of the Sheriff and a Warrant of â—he Sheriff to himself there De injuria sua propria generally is not a good Plea because a Matter of Record is parcel of the Cause But there he â—ught to say De injuria sua propria and traverse â—he Warrant which is Matter en fait 8 Rep. â—rogat's Case D. brought Action of Assault Battery and Execution â—mprisonment of his Wife against W. and W. in â— B.
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
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.