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cause_n	bishop_n	ecclesiastical_a	king_n	2,997	5	4.1467	3	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34174	The compleat sheriff wherein is set forth, his office and authority, with directions, how and in what manner to execute the same, according to the common and statute laws of this kingdom, which are now in force and use, and the judgments and resolutions of the judges in divers late cases, in the several courts of Westminster, relating thereunto : likewise of vnder-sheriffs and their deputies, and where the high-sheriff shall be answerable for their defaults, and where not, &c. : together with the learning of bail bonds, with an explication of Stat. 23 H.6. cap. 10 and pleadings thereon : retorns of writs, remedies against non retorn and faux retorn, Habeas corpus, Venires, challenges and enquiry of damages, prisoners and prisons, execution by fieri fac, elegit, &c. : escapes, actions and pleadings therein, fresh pursuit, and other pleas, attachment, americament : actions, declarations and pleadings on the sheriffs nonfesance or male-fesance : customs of London, as to prisons, courts, process, sheriffs fees, extortion, sheriffs accompts, &c, : to which is added The office and duty of coroners.		1696 (1696)	Wing C5653; ESTC R1060	279,424	488

Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a V● Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest su●mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded

the Liberty shall have an Action against him and the Party Arrested shall have no remedy If Goods are Distrained and Impounded in a Liberty the Bayliff is to make Replevin and Deliver them but if the Bayliff will not or did not Deliver them after the Sheriff hath made Retorn of the Kings Writ to him then the Sheriff shall enter and Deliver them per Stat. 52 H. 3. 21 Ed. 1. 17. and in such cases the Sheriffs Retorn will not serve A Writ of Enquiry of Damages directed to the Sheriff cannot be executed by a Bayliff of He cannot execute a Writ of Enquiry of Damag●s directed to the Sheriff a Liberty but by the Sheriff himself so in Redisseisin for he is both Judge and Officer there Hob. p. 83. Vizey and Gunstone * Bayliff of Westminster fined because the Gaoler of the Gatehouse refused to charge a Prisoner with the Sheriff of Middlesex his Warrant 3 Keb. 479. Briton and Griffith One was in Prison in the Gatehouse by a Warrant from Secretary Coventry for Mi●demeanors and the Gaoler refused to charge him with a Warrant of the Sheriff of Middlesex at the Plaintiff Suit Per Cur ' the Gaoler cannot dispute it tho' the Court may give leave or refuse it and the Bayliff of Westminster on pain of 20 l. was ordered to Return the Writ Of Retorns by them A Bayliff who Executes a Writ and is removed Of their Retorn of Writs to the Sheriff More 431. Palmer and Porter More 402. Atkinson before the Retorn may make the Retorn to the Sheriff and he over to the Court but if he Executes it not he shall not make the Retorn but the Retorn of Nihil or non est inventus t is to be made by the New Bayliffs The Sheriff Retorns Mandavi Ballivo qui mihi dedit responsum qd ' cepit corpus A. fecit Rescous It s a good Retorn But Mandavi Ballivo qui cepit carpus A. fecit Rescous is not good in Redisseisin and that he cannot Retorn Mandavi Ballivo c. Vide pluis tit Retorn A Man may aver against the false Retorns Averment against the Retorn Dalt 545. of Bayliffs of Liberties and shall recover as well against them as against the Sheriff too of several Issues retorned Dalt 545. Where the Precept is made to the Sheriff by Force within a Liberty Dalt 545. the Justices of Peace to retorn a Jury to enquire of a Forceable Entry and the Force is within a Liberty the Sheriff shall direct his Precept to the Bayliff of the Liberty to Retorn the Jury the Bayliff must make a due Retorn as to Issues on Jurors c. Note The Bayliff shall never take benefit of 5 Rep. 92. his Liberty If Capias or fieri fac ' comes against the Bayliff the Sheriff shall execute the Process on him or his Goods within the Liberty and where the Bayliff of the Liberty is party to the Suit he shall not Retorn the Jury but the Sheriff Where and in what Cases the Sheriff may Enter into a Franchise Wheresoever the King is a Party as in every Felony or suspicion of Felony or otherwise in 5 Rep. 92. any Action the Sheriff ex officio is to enter the Franchise and to execute the Process himself In a Writ of Wast and Redisseisin the Sheriff must enter the Franchise to make enquiry c. So where the Bayliff nullum dedit responsum So to Deliver a Distress But 't is safest for the Sheriff in default of the Bayliff to have a Writ of non omittas propter Libertatem On extent upon Stat. Merchant the Sheriff is to enter the Franchise If the Sheriff enter on non emittas by reason Terms Ley. of the Bayliffs default and Execute the Writ the Sheriff shall warn the Bayliff of the Franchise that he be before the Justices at the day contained in the Writ and if he come not and excuse himself then all Writs judicial in the same Plea shall be Writs de non omittas The Sheriff in his Retorn is to set down the name of Baliff of the Liberty Pleadings by Bayliffs of Franchises Trespass for taking away a Mare the Defendant He must shew the Jurisdiction of the Court. saith That before the Taking the Defendant being the King's Bayliff by Precept out of the Court of Pomfret to make Execution c. on Levari c. Per Cur ' Its ill because he doth not shew the Jurisdiction of the Court and that is necessary by the Bayliff of an Inferiour Court especially because he Justifies by 1 Keb. 53. Crofts and Wilkinson reason thereof as in the Countess of Rutlands Case and it must appear that the Court hath Cognizance of the Cause aliter he cannot execute there Precept Action on Escape and declares he delivered a Writ to the Sheriff of Nottingham who made a Warrant to the Bayliff of the King's Liberty Plead Rescue from the Deputy of the Bayliff of a Liberty of Newark to execute it which Warrant was delivered to one L. Deputy of the Lord Burleigh Ballivo Libertatis Dom ' Regis Wapentagii sui de Newark who Arrests him and the Defendant Rescued him out of the Custody of the said Deputy He saith he was Rescued from the Deputy of the Bayliff of the Franchise and does not say from the Bayliff himself or the Sheriff Per Cur ' its good For in this Action on the Case he shall shew the Truth as it is rei veritate and it s not like the Retorns of Rescues or Indictments which say it was done to the Sheriff or Bayliff himself It was moved for Error Secondly because it is alledged the Lord Burleigh was Ballivo Libertatis Dom ' Regis de Newark and the King cannot have any Liberties for they are extinct when they are come to his hands Sed non allocatur For the King may have such Liberties by the suppression of Abbies which are not extinct but revived per Stat. 32 H. 8. or by some other ways and it shall not be intended to extinct unless it be shewed And the Bayliff of a Liberty may well have Bayliff of a Liberty may have Deputy a Deputy Cro. Jac. 241. Kent and Ellwis Power of Bayliff of Franchises and Pleadings The Bayliff of a Franchise cannot take a Difference between Bayliffs of a Franchise and Sheriffs Bayliffs Bond for Appearance in the Sheriffs Name but Bayliffs of Hundreds may Vid. 3 Keb. 552. Ellis's Case Hundreds that have Retorn ' Brevium are Franchises Hundred by Grant that hath Bayliff by particular Lord is but his Servant and the Sheriffs usually makes another Bayliff to execute there But a Bayliff of an Hundred may waive his Franchise and Arrest as Sheriffs Bayliff and then he may take Obligat ' in the Name of the Sheriff also 3 Kcb. 71. Munday and Frogate The Bayliff of a Liberty must Retorn his Precept and a Bayliff Itinerant needs not

Habeas Corpus ad respondend ' recipiend ' or faciend ' granted on the Pleas side for so the Court of the Kings Bench is divided in the practise of it that is to say into Criminal Causes between the King and the Party and Civil Causes between Subject and Subject Now an Habeas Corpus ad respondend ' is when any one is Imprisoned at the Suit of another upon a Legal Process in the Fleet or any other Prison except the Kings Bench Prison and a third person would Sue that Prisoner in this Court B. R. and cannot because he is not in Custody of the Marshal of this Court there he may have an Habeas Corpus to remove the Prisoner out of the Prison where he is into this Court to answer to his Action here This is called a Habeas Corpus cum causa and an Habeas Corpus cum causa doth remove the Prisoner for whom it is granted and all the Causes which are then depending against him for upon Habeas Corpus to an Inferiour Court to remove Corpus cum causa they ought to return all the Causes that are depending there concerning the Party that hath the Habeas Corpus if any of the Causes depending be above 5 l. Stiles Rep. 150. When an Habeas Corpus is Awarded and Bail taken though they be not Filed yet presently the Prisoner is discharged and his Sureties also in the Inferiour Court Cro. Jac. 203. Franley and Basset One was in Execution in the Fleet for a Debt recovered against him in B. R. he being before condemned in the Kings Bench for another Debt was by Habeas Corpus cum causa removed into the Kings Bench per Cur. in this Case he may acknowledge satisfaction for both Debts in B. R. he being in the Custody of the Marshal for both Debts If the Marshal suffer him to Escape he shall be charged for both the Debts Dyer 152 307. As for Retorns of Habeas Corpus What shall be a good Retorn on Habeas Corpus or Corpus cum causa An Habeas Corpus to remove one committed for Debt from one Prison to another may be granted Retornable immediate or indilate for this is only an Habeas Corpus ad Recipiend ' in the nature of it An Habeas Corpus is not a Record till it be Amendment Retorned and Filed and then it cannot be amended but it may be amended before it s Filed Whatsoever person or by what means soever Conclusion of the Retorn he was committed the conclusion of the Retorn ought to be Corpus tamen ejus paratum habo yet it cannot always be so 1 Leon. p. 70. An Habeas Corpus ad subjiciend ' is always intended Retorn by the Chancellor of Durham to him that has the Body tho' ad faciend ' may be circular as an Habeas Corpus was directed to the Chancellor of Durham that he make a Precept to the Sheriff to have the Body coram nobis apud Westm The Retorn is that the Chancellor issued a Precept to the Sheriff to return his Body before him and that the Sheriff returned paratum habet and it s not said the Chancellor had him here which is ill per Cur. for it should be cujus Corpus paratum habeo in this Court 3 Keb. 229. the King against Pell and Offley Habeas Corpus was directed to the Steward and Cause of commitment shewed Marshal of the Marshalsea for H. the Marshal Retorns the said H. was committed to the Custody per mandatum Francisci Walsingham Mil ' principalis Secretar unius de privat ' Concilio Domini Regis This is insufficient because the Cause of Commitment is not set down in the Retorn Then it was amended and Retorned in this manner ex sententia mandato totius Concilij privati Domini Regis ità qd ' ejus corpus habere non possumus This per Cur ' is in sufficient also he ought to have concluded Corpus ejus tamen parat ' habeo Note Where the Party is committed by the whole Councel no cause of the Committment need to be shewed 1 Leon. p. 70. On Latitat the Sheriff Retorned that he had By Habeas Corpus to bring into Chancery Arrested the Defendant and that such a day and before the Retorn of the Latitat Habeas Corpus was to bring the Body into Chancery and there the Prisoner was Discharged the Retorn is good for the Sheriff is bound to obey the Kings Writs and he cannot compel the Parties to put in Sureties here in B. R. But it was ill done of the Master of the Rolls to Discharge him Per Curiam we have oftentimes persons here upon Habeas Corpus who are also Arrested by Process out of the Exchequer or of the Common Pleas but we will not Discharge them before they have found Sureties for their appearance and we cannot punish the Sheriff for the Habeas Corpus was first retornable before the Latitat But because the Retorn was à custodia nostra exoneratus fuit which might be intended as to the Cause in Chancery only and not for the Cause here for he hath not alledged that he was committed to any other in Custody the Sheriff was to amend his Retorn 1 Leon. 145. Cary Amendment and Dennis A Retorn of Habeas Corpus by the Warden of the Fleet was propter contemptum extra Cur ' Cancellariae It s not good 1 Rolls Rep. 92. General Directions for Writs of Habeas Corpus Error or Priviledge vid. Compleat Solicitor 106 and other Manuals On Habeas Corpus the Sheriff Retorns that the That the Justices committed him for a Fine Justices of Peace committed the Plaintiff for a Fine on Contempt for which the Court awarded him to remain in Prison till payment Siderfin p. 144. the King versus Mayo The Retorn on Habeas Corpus was a Protection Protection 1 Leon. p. 70. Searchers Case Note The Retorn of an Habeas Corpus ought Retorn to be Writ on Parchment to be Written in Parchment and not on Paper for the Retorn is to be Filed and made a Record of Court and all Records are to be Written on Parchment And therefore after the Retorn is Read and Filed in Court it cannot be amended But in Hob. p. 113. An Habeas Corpus was Retorned without the Sirname of the Sheriff and after Verdict amended It is agreed The Retorn of an Habeas Corpus Amendment Good to common intent need not be so punctual as a Plea because not made by Persons of such Learning as Pleas are but if they be good to common intent and substance it s enough Upon Habeas Corpus granted by the Kings Rule to bring in the Body Bench to the Warden of the Fleet to have here in Court the Body of D. W. the same Retornable at a day certain at which day the Warden of the Fleet did refuse to make his Retorn and to bring in the Body And the Court entred a

Rule to bring in the Body of B. W. the next day Sub Poena 20 l. and so are all Presidents of Felony and Treason Note If it appear that the Committment is good and there is good Cause the Court remands the Prisoner if it is not good they Discharge him if it be doubtful they Bail him The Sheriff may suggest that the Party will Who to pay the Charges of the Retorn not pay his Charges of Retorn of Habeas Corpus ad faciend ' recipiend ' which is at the Suit of the Party But contra in Habeas Corpus ad faciend ' subjiciend ' which is at the Suit of the King he must Retorn at his Peril 1 Keb. 272 280. the King versus Armiger And on Habeas Corpus to remove any Prisoner the Sheriff must Retorn the Writ and the Court will allow his Charges here So in the Case of the Steward of Upon Habeas Corpus the Officer ought to bring the Prisoner to the Court and the Court shall tax Charges and compel payment if the Officer and Prisoner or Plaintiff cannot agree or payment be not made according to the Agreement Sir Tho. Jones p. 178. Error on a Scire fac ' on the Sheriffs Retorn being an Original Suit lies not in the Exchequer Chamber but Error on Scire fac ' Quare Executionem non hath been constantly allowed to lie there 2 Keb. 833. Jones and Anderson The Form of the Retorn Languidus Detent ' in Prisona attamen Corpus ejus c. The Causes of the Caption and Detention Retorned vide Dalton cap. 63. that he was taken in Execution by the late Sheriff c. that he was Imprisoned by a Justice of Peace his Warrant Retorn of a Certiorari per Viscount The Sheriffs of London appeared in Court in their proper person upon a Rule of Court to shew Cause why they did not grant out Execution upon a Judgment given in their Court or else to make a sufficient Retorn of a Certiorari directed to them because they had made three insufficient Retorns Stiles p. 444. A Certiorari was directed to the Sheriff to certifie whether the Conisor in a Recognizance had an Heir Jones p. 319. CHAP. XII How many sorts of Juries Of Retorns and by whom Retorned what manner of persons shall not be Retorned on Juries and how they shall be Discharged Where when and how persons exempt shall have Action against the Sheriff for Impannelling them Of returning trop petit Issues Of levying the Issues Of other Erroneous proceedings and misdemeanors of Sheriffs about Jurors What Estate every Juror must have by the late Statute of 4 5 W. M. Of Challenges The several sorts and causes of Challeng and what are good or not and when to be taken Of Enquiry Of Tryals betwixt Party and Party Jurors are of two Sorts Juries to Enquire are grand Juries at Assizes or the Quarter Sessions So Juries Retorned before Justices of Peace to enquire of Riots Forcible Entries and Juries Retorned before Commissioners of Sewers or upon the Statute of Bankrupts Coroners c. and Inquisitions taken before the Sheriff and all these the Sheriff is to Summon except Bankrupts Qu. Now upon every Tryal in personal Actions the Sheriff must Retorn two Hundredors at least Cok. Litt. 1 25 158. As for the number of Jurors Retorned vid. Dalton 86. Retorn of Jurors If it be conceived an indifferent Jury will Jury Retorned by the Secondary not ●e Retorned in the Country the Court on motion will order the Sheriff to attend the Secondary of the Office with the Book of his Freeholders to have an indifferent one Retorned Pract. Reg. 163. So it was done in Pooles and Markham Case Stiles 477. because the Plaintiff in a former Tryal between the Parties had Feasted four of the Jury and had Feasted some of the Jury that were Retorned upon that Tryal and the like was done in Coxes Case 15 16 Car. 2. B. R. because Cox who was Intitled to the Reversion had forbid Rent to be paid by the Tenants and took on him the defence of the Ejectment brought against the Tenants was of Kindred to the Sheriff and Undersheriff and Trustee for them But in another Cause 17 Car. 2 B. R. The Court on Certificate of a Judge that Verdict was given contrary to Evidence would not allow that the Sheriff should bring in the Book of Freeholders to the Secondary for the ill Example but ordered the Sheriff should Retorn a good Jury in the new Tryal Upon motion that the Cause to be Tryed at the Bar is of great consequence the Court will make a Rule for the Sheriff to Retorn 48 Jurors upon the Jury Pract. Reg. 163. When a Tryal is to be for a thing which concerns Who to Retorn the Jury the Undersheriff there the High Sheriff shall Retorn the Jury aliter if the Tryal concerns the High Sheriff the Undersheriff shall not Retorn the Jury but the Coroners Pract. Reg. 164. What manner of persons shall not be Impanelled on 8 Rep. 5. 3. 6 Rep. 108. 9 Rep. 49. Juries and how they shall be Discharged and where they shall have Actions against the Sheriff for Impannelling of them The Sheriff ought not to Retorn Priviledge Exemption to be exempt from Juries but he ought to Summon and shall not be liable to an Action Siderfin p. 243. The King and Percival the Case was Venire fac ' was awarded to the Sheriff of the City and County of Canterbury to Retorn a Jury here at the Bar and upon the Distringas the Sheriff Retorns this to be an Antient City and County and that the King had granted to them an Exemption not to serve in any Jury out of their City except in Cases of High Treason and by express words that they should not serve coram ipso Rege Per Cur ' First The Retorn is ill Because if it were in the power of the Sheriff to Retorn Priviledge he cannot do this upon the Distringas or Habeas Corpus as he did here because by the Retorning of the Venire viz. That there are 24 prob ' Legales homines he had concluded himself there being also Pledges upon every such Retorn Secondly That the Sheriff may not Retorn so Priviledge of Exemption when to be clai●ed at any time but ought to Retorn them Summoned and the Parties ought to come here and then every person who had cause of Priviledge ought to calim here in person and not the Sheriff for them More 883 30. Wallers Case Siderfin 293. The King and Percival The Court awarded an alias Distringas in regard the Sheriff cannot vary from the first Venire Retorned but must have the same Men Keb. 867. mesme Case And no Action lies against the Sheriff upon their Delivery of the Writ of Exemption Hardress Rep. 389. mesme Case But in the Town of Darby and Foxleys Case Action on the Case against the Sheriff for

out of any other Court but out of which soever if the Authority of the Writ be-Executed either in Time or Place at the pleasure of the Gaoler or Prisoner ' its an Escape as being carried a month before the time and staying a month after also the Habeas Corpus being at a place and day certain ' it s no pretence of stay at any other places or ultra to search Writings or to speak with Witnesses and immediate is a convenient time without wilful delay so is Mod. Rep. 116 tho the Sheriff be not bound to bring the Prisoner the direct way yet he ought not to carry him round about a great way for the accomodation of the party if he do it is an Escape 3 Keb. 305. Lutterell and Mosedell's Case and Mod. Rep. 116. Mosedell's Case But upon this Point of the Prisoners being suffered Diversity to go at Large there is a diversity to be well heeded And that is Between one in Execution within the Franchise or County where the common Gaol is where the Office of Sheriff or Bayliff extends for there if the Sheriff c. assent that one in Execution shall go out for a time altho he retorn by the time or if he suffer him to go at Large by Bayl or Baston it is an Escape But when the Sheriff c. is commanded by Writ to have the Body at Westminster he may be a Keeper of him in another County as in the Case of Bennet and Halsey Mo. 3. Rep. 44. Boyston's Case The Plaintiff was taken in Execution by the Sheriff of B. and by an Hab. Corp he was brought to Smithfield by the Gaoler of B. and there at eight a Clock at night the Prisoner went into Southwark and none with him and there continued all night and the next morning he Habeas Corpus ad Recipiend ' retorned to Smithfield to his Keeper and there continued with him till the retorn of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants Inn and he retorned his Writ and the Chief Justice committed him to the Marshalsea and it was adjudged to be no Escape in the Sheriff so in Burton and Andrews Case Mo. Rep. Bennet and Halsey For the effect of the Writ is performed to have him there at the day and the Writ does not command him to bring him the usual way but to have his Body at the day and so if one be Sheriff of two Counties and had Arrested two by two several Capias in two Counties he may bring one into the other County to have them both at Westminster and may bring them the surest way If a Gaoler on an Hab. Corp ad Testificandum Habeas Corpus ad Testificand bring one whom he had in Execution to be a VVitness by Twisden it is an Escape and so has been adjudged In Rolls his time the Court was moved for an Hab. Corp. for a Prisoner in the Kings-bench that he might be a Witness in a Cause in Darby Shire at the Assises but it was denied but he said he knew it granted for one to be a Witness at a Tryal at Guild Hall but at the Charges and Peril of the party for whom he was to be a Witness if he Escape 14 Car. 1. B. R. And in 24 Car. 2. B. R. Adam's Case the Court granted an Habeas corpus for a Prisoner in the Marshalsea to Testifie in a Cause in Middlesex But Hale Chief Justice said He would never grant it in his Chamber being but a private Person and the party may escape which would be remediless Siderfin p. 13. Fitz-Jeffreys If one be in Execution in the Fleet or other The King cannot License one to go at Large place at the Suit of the King or of a Common person and the Warden or Gaoler by the Command of the Lord Chancellor or Treasurer suffer him to go into the Country with a Keeper to gather Money the sooner to pay the King and he goes accordingly and returns to Prison again yet this is an Escape as to the Common person for the King himself cannot License a man to go so at Large Dyer 12 13 Eliz. 297. If one be in Execution at the Suit of the King in the Fleet the Warden may suffer him to go to his Counsel with his Keeper But not so in the Case of a Common person Savill's Rep. p. 29. A man is in Execution for Debt and a Woman being Warden of the Fleet marries the Prisoner This is an Escape for that he cannot be his own Prisoner nor a Prisoner to his Wife So if the Sheriff or Gaoler marry a Woman that is in Execution for Debt Sir Gervas Clifton's Case cited 1 Leon. 237. in Offley and Saltington's Case was He being Sheriff suffered one in Execution and in his Custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again This Case was referred by the King to the Habeas Corpus in regard of the Plague Judges Trin. 12 Car. 1. Whether in regard of the Plague Habeas corpora may be granted for the Prisoners in Execution in the Prisons of the Kings-Bench and Fleet upon Judgment in the Common-Bench and Exchequer and it was Certified by them to the Lord Keeper that if upon Habeas corpus granted the Gaoler suffers the Prisoners to go at Large with a Keeper or Baston that this is an Escape and that no Habeas corpus ought to be by the Law for this purpose which the King well approved of And in primo Caroli the Prisoners in the Fleet petitioned the Parliament that they may have Habeas corpora in the Vacation in respect of the great Plague in London but the Parliament would not assent to it because against the Law A Capias ad satisfaciend ' is served upon one who Execution served upon one who is Prisoner for Felony and then an Escape is a Prisoner for Felony and Indicted and Arraigned and found Guilty and afterwards Escapes Debt lies against the Sheriff for the Execution was well served upon him and altho' his Body was at the Queens pleasure yet he shall not take advantage of his own Tort but he shall answer the Suit or Execution of a Common person Cro. El. 165 517. 1 Leon. 87 236. Ognel and Paston The Sheriff delivers the Prisoner upon a void Delivery upon a void Audita Querela is no Escape Audita querela This is no Escape and there the Prisoner may be taken again in Execution Mo. 344. n. 479. Collins's Case But if a Scire facias had in it the words of Audita querela it s against Law and its an Escape if the Sheriff deliver the Prisoner upon it 1 Roll. Rep. 383. A forged Warrant of Attorney for Satisfaction One delivered upon a forg'd Warrant of Attorney for satisfaction is delivered into the Office where one is in Execution and the Marshal lets

no Prorogation at all So 35 El. 1. Sect. 11. it said 29 El. 6. Vide 1 Anders 294. Rast Abr. Elenchus Parliam Keb. 3. 742. Sprig and Eve Quaere When one Sheriff shall make the Extent and the other Sheriff the Liberate who shall have the Fees given by the Statute Note The Fees shall be paid by him that sets him at work and not by the Prisoner Of whom the Bayliff on Arrest having taken 7 s. for Attorneys Fees was convicted of Extortion 1 Keb. 623. Le Roy. versus Wade Poundage was allowed the Sheriff out of 100 l. Fine imposed after Conviction on Indictment of Battery in B. R. levied upon a Fieri fac ' and it was allowed out of the Money in the hands of the Clerk of the Crown payed by the Sheriff Tho' there was no President in B. R. for it But the Barons always make such allowance in the Exchequer after the Moneys paid in there by the Clerk of the Crown Sir Thomas Jones 185. Le Roy versus Wade Of Sheriffs Security and Remedy for Fees and what Fees they may take or not and what shall be Extortion in them or not and how punishable What Security the Sheriff may take for his Fees or not The VVarden of the Fleet and the VVarden of the Palace of Westminster may take Bond for Diet and due Fees of the Office Hetly 176. Harris and Lea. The Sheriff may take a single Bill for his The Sheriff shall take single Bill for his Fees but not with a penalty Fees and that is the ordinary course but not with a Penalty To this purpose there is a notable Case Empson and Bathurst Winch 22. The Condition of a Bond to the Sheriff is to pay 20 l. That is for Money which is given to him for his Fees which are due by the Stat. of 29 Eliz. Defendant pleads the Statute of 23 H. 6. c. 10. the Case was A Statute of 200 ● was acknowledged to the Defendant by J. S. and this was extended by the Plaintiff being Under-sheriff and it was agreed between C. E. Brother to the Plaintiff and the Under-sheriff before the Libertate excecuted That the Defendant should enter into the said Bond to the use of the Plaintiff Three Points were resolved per Curiam 1. This Bond is not within the Statute of 23 Statute 23 H. 6. H. 6. for the Party was not within the Ward of the Sheriff And so was Beaufage's Case 2. The Sheriff may not take his Salary appointed by the Statute till a compleat Execution i. e. till the Libertate for the words of the Statute are in the Negative and doth not establish the Fees but only tolerates them And by Hobart Action is by Sheriff if the Conisee sue an Extent and then refuse to sue the Liberate to the intent to defraud the Sheriff of his Fees the Sheriff shall have his remedy by Action on the Case 3. This Obligation is void by the Common Law and Extortion as Dive and Manningham Case is Plowd 65. The Sheriff may take a Bond with a great Penalty for the appearance of the Party but not for his Fees by the 23 of H. 6. for that Statute as to Fees is not repealed by 29 Eliz. What Remedy the Sheriff shall have for his Fees Action of Debt lies for a Sheriff upon the Statute of 29 Eliz. c. 4. for Execution Fees al tho' the Statute doth not say he shall have the Fees nor any Action for them but only saith he shall not take for any Execution made any Consideration or Recompence besides what is therein mentioned which it shall be lawful for him to take viz. 12 d. for 20 s. where the Sum doth not exceed 100 l. and 6 d. above 100 l. 1 Rolls Abr. 598 Proby and Lumly versus Mitchel 1 Rolls Rep. 404. The Sheriff shall have Action on the Case but not debt upon Assumpsit to pay his Fees due by the Law of the Realm for to execute an Execution Moor 699. But he shall have Debt for his Fees not prohibited by the Statute of 29 Eliz. Moor 853. Staunton and Proby Moor 667. Mor. 667. S●llyard and Stamp Where and in what Actions the Sheriff shall not take Fees The giving of Money to a Sheriff to Arrest a Man is against the Law 1 Rolls Rep. 313. A Sheriff cannot take Money for Fees upon delivery of Warrants to his own Bayliff but must stay till the Money is levied aliter if it be to Special Bayliff Moor p. 468. ● 669. Sullyard and Stamp No Fee is due to the Sheriff for Executing a Cap. Utlag Cap. Utlegat either for VVarrant to Execute i● or for the Retorn of it Sheriff took 200 l. to Execute Hab. fac Possessionem Hetly p. 52. Wildsheres Hab ' fac Possession Case Litt. Rep. 65. Mesme Case Per Cur ' Its great oppression to the Subjects that the Sheriffs to whom the Statute had given so much in the Pound in Case of Execution against a personal Estate should take such Fees in case of a real Estate and it was said it was not to be found that they have any legal Fee upon this Execution but the usual Fee which they ought to take is 2 s. 4 d. 2 Siderfin 155. What shall be said Extortion in Sheriffs and Gaolers c. and how punishable As to the Sheriffs taking Bonds Extorsivè Vid. supra in tit Stat. 23. H. 6. c. 10. By W. 1. c. 26. no Sheriff or any Minster of the King shall take any reward for doing his Office but only that which the King allows upon pain that he shall render double to the Party c. but later Statutes have permitted them to take in some Cases But yet such reasonable Fees as have been allowed by Courts of Justice of old to inferior Ministers and Attendants on Courts if they be demanded it s no Extortion Co. 1 Ins● 368. Shirly and Packer 10 Rep. 101. If any Bayliff or other Sheriffs Officer shall take any thing of any person to spare them for appearing at the Assizes Sessions of the Peace or the like it is Extortion If the Sheriff or any of his Officers shall take any Money or other reward for the omitting of any Arrest or Attachment to be made it is Extortion and the Sh●riff o● Officer so offending shall forfeit for every such offence 10 l. to the King and Informer 32 H. 6. c. 10. As to the Punishment of Sheriffs for Extortion it s either by Indictment Information Imprisonment Commitment As to Indictments what is good or not Indictment of Extortion against a Bayliff of Indictment an Hundred qd ' Colore Officij he took Extorsive Money and shews not for what matter or cause Per Curiam It s well enough the Officer being Bayliff of an Hundred Especially being after a Verdict But Quaere of this 1 Keb. 557. the King and Gover. By 23 H. 6. c. 20. on Extortion treble Damages Treble damages are given