Rule to bring in the Body of B. W. the next day Sub Poena 20 l. and so are all Presidents of Felony and Treason Note If it appear that the Committment is good and there is good Cause the Court remands the Prisoner if it is not good they Discharge him if it be doubtful they Bail him The Sheriff may suggest that the Party will Who to pay the Charges of the Retorn not pay his Charges of Retorn of Habeas Corpus ad faciend ' recipiend ' which is at the Suit of the Party But contra in Habeas Corpus ad faciend ' subjiciend ' which is at the Suit of the King he must Retorn at his Peril 1 Keb. 272 280. the King versus Armiger And on Habeas Corpus to remove any Prisoner the Sheriff must Retorn the Writ and the Court will allow his Charges here So in the Case of the Steward of Upon Habeas Corpus the Officer ought to bring the Prisoner to the Court and the Court shall tax Charges and compel payment if the Officer and Prisoner or Plaintiff cannot agree or payment be not made according to the Agreement Sir Tho. Jones p. 178. Error on a Scire fac ' on the Sheriffs Retorn being an Original Suit lies not in the Exchequer Chamber but Error on Scire fac ' Quare Executionem non hath been constantly allowed to lie there 2 Keb. 833. Jones and Anderson The Form of the Retorn Languidus Detent ' in Prisona attamen Corpus ejus c. The Causes of the Caption and Detention Retorned vide Dalton cap. 63. that he was taken in Execution by the late Sheriff c. that he was Imprisoned by a Justice of Peace his Warrant Retorn of a Certiorari per Viscount The Sheriffs of London appeared in Court in their proper person upon a Rule of Court to shew Cause why they did not grant out Execution upon a Judgment given in their Court or else to make a sufficient Retorn of a Certiorari directed to them because they had made three insufficient Retorns Stiles p. 444. A Certiorari was directed to the Sheriff to certifie whether the Conisor in a Recognizance had an Heir Jones p. 319. CHAP. XII How many sorts of Juries Of Retorns and by whom Retorned what manner of persons shall not be Retorned on Juries and how they shall be Discharged Where when and how persons exempt shall have Action against the Sheriff for Impannelling them Of returning trop petit Issues Of levying the Issues Of other Erroneous proceedings and misdemeanors of Sheriffs about Jurors What Estate every Juror must have by the late Statute of 4 5 W. M. Of Challenges The several sorts and causes of Challeng and what are good or not and when to be taken Of Enquiry Of Tryals betwixt Party and Party Jurors are of two Sorts Juries to Enquire are grand Juries at Assizes or the Quarter Sessions So Juries Retorned before Justices of Peace to enquire of Riots Forcible Entries and Juries Retorned before Commissioners of Sewers or upon the Statute of Bankrupts Coroners c. and Inquisitions taken before the Sheriff and all these the Sheriff is to Summon except Bankrupts Qu. Now upon every Tryal in personal Actions the Sheriff must Retorn two Hundredors at least Cok. Litt. 1 25 158. As for the number of Jurors Retorned vid. Dalton 86. Retorn of Jurors If it be conceived an indifferent Jury will Jury Retorned by the Secondary not â—e Retorned in the Country the Court on motion will order the Sheriff to attend the Secondary of the Office with the Book of his Freeholders to have an indifferent one Retorned Pract. Reg. 163. So it was done in Pooles and Markham Case Stiles 477. because the Plaintiff in a former Tryal between the Parties had Feasted four of the Jury and had Feasted some of the Jury that were Retorned upon that Tryal and the like was done in Coxes Case 15 16 Car. 2. B. R. because Cox who was Intitled to the Reversion had forbid Rent to be paid by the Tenants and took on him the defence of the Ejectment brought against the Tenants was of Kindred to the Sheriff and Undersheriff and Trustee for them But in another Cause 17 Car. 2 B. R. The Court on Certificate of a Judge that Verdict was given contrary to Evidence would not allow that the Sheriff should bring in the Book of Freeholders to the Secondary for the ill Example but ordered the Sheriff should Retorn a good Jury in the new Tryal Upon motion that the Cause to be Tryed at the Bar is of great consequence the Court will make a Rule for the Sheriff to Retorn 48 Jurors upon the Jury Pract. Reg. 163. When a Tryal is to be for a thing which concerns Who to Retorn the Jury the Undersheriff there the High Sheriff shall Retorn the Jury aliter if the Tryal concerns the High Sheriff the Undersheriff shall not Retorn the Jury but the Coroners Pract. Reg. 164. What manner of persons shall not be Impanelled on 8 Rep. 5. 3. 6 Rep. 108. 9 Rep. 49. Juries and how they shall be Discharged and where they shall have Actions against the Sheriff for Impannelling of them The Sheriff ought not to Retorn Priviledge Exemption to be exempt from Juries but he ought to Summon and shall not be liable to an Action Siderfin p. 243. The King and Percival the Case was Venire fac ' was awarded to the Sheriff of the City and County of Canterbury to Retorn a Jury here at the Bar and upon the Distringas the Sheriff Retorns this to be an Antient City and County and that the King had granted to them an Exemption not to serve in any Jury out of their City except in Cases of High Treason and by express words that they should not serve coram ipso Rege Per Cur ' First The Retorn is ill Because if it were in the power of the Sheriff to Retorn Priviledge he cannot do this upon the Distringas or Habeas Corpus as he did here because by the Retorning of the Venire viz. That there are 24 prob ' Legales homines he had concluded himself there being also Pledges upon every such Retorn Secondly That the Sheriff may not Retorn so Priviledge of Exemption when to be claiâ—ed at any time but ought to Retorn them Summoned and the Parties ought to come here and then every person who had cause of Priviledge ought to calim here in person and not the Sheriff for them More 883 30. Wallers Case Siderfin 293. The King and Percival The Court awarded an alias Distringas in regard the Sheriff cannot vary from the first Venire Retorned but must have the same Men Keb. 867. mesme Case And no Action lies against the Sheriff upon their Delivery of the Writ of Exemption Hardress Rep. 389. mesme Case But in the Town of Darby and Foxleys Case Action on the Case against the Sheriff for
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
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
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
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
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 Damagâ—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 Miâ—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
512. Palmer and Potter If a Venire fac ' comes to the Sheriff in a Against the Sheriff for a Retorn by one who is nor Bayliff of a Franchise Quare impedit and the Sheriff command the Bayliff of the City of C. to retorn the Pannel who does it accordingly where he had not any Warrant to do it not being Bayliff of a Franchise whereby the Pannel is quasht The Plaintiff for this default in the Sheriff and for his Damages shall have an Action on the Case 38 Assize 13. The Sheriff upon a Fieri facias against J. S. Against the Sheriff and not against the Bayliff makes a Warrant to J. S. to execute as his Bayliff and he does it and afterwards the Sheriff makes a False Retorn viz. that the Writ came Tardé c. by which he is a Trespasser ab initio yet it amkes not the Bayliff a Trespasser 2 Rol. Abr. 562. Parkes and Mosse It was the Opinion of all the Judges in the Case of Fawces and Cotton That the Sheriffs submission to a Fine is no Conclusion to the parties grieved to bring their Actian for the false Retorn of the Sheriff if it were so Sir Thomas Jones p. 39. In retorn on Elegit the Sheriff Retorns That Case and not Debt he had appraised the Goods in specie to 40 l. and extended such Lands and delivered them to the Plaintiff Ubi revera he never delivered them to the Plaintiff Action of Debt lies not in this Case but Action on the Case for it is no Debt in the hands of the Sheriff Cro. Jac. 566. Coryton against Thomas And it s not like to Pyke's Case 14 Jac. which was the Sheriff on a Scire fac ' retorned That he had sold the Goods for so much Money and delivered the Money to the Plaintiff and the Plaintiff thereupon averring that he had not the Money maintained an Action of Debt For there the Sheriff confessed by his Retorn That he had sold the Goods and delivered the Money but here it is not retorned that he medled with the Goods or the value of them so as there is not any Certainty to charge him Pyke's Case 14 Jac. Where the Action is to be brought Action for a False Retorn may be brought in the County where this was or in Middlesex where the Record is Cro. Jac. 532. Parkhurst and Powell So Escape at D. in Wales and the Retorn was Non est Inventus and it was tryed at Westminster the False Retorn being made at Westminster which is the cause of the Action 2 Keb. 362. Mancer and Smith If a Sheriff on Cap ' Utlagat ' will not arrest the party but retorn Non est Inventus an Action may be brought against him in the County where he received the Writ or in Middlesex where the Record of that False Retorn is at Election Hob. 209. Siderfin p. 218 219. Russel's Case A Doubt was Whether Action on the Case for a False retorn on Elegit lies in the County where the retorn of the Exigent was i. e. in Middlesex or where the Land lies And the Court inclined that it lay most properly in Middlesex Winch. p. 100. Sheir against Sir Francis Glover One brings Debt against B. Sheriff of the County Palatine of Lancaster and sues him to Outlawry on Mesn Process and had a Capias directed to the Chancery of the County Palatine who make a Precept to the Coroners of the County being Six to take his Body and have him before the Justices of the Court of Common Bench at VVestminster one of the Coroners being in sight of him and having a fair opportunity to arrest him does it not but they all retorn Non est inventus The Plaintiff hereupon brings his Action against the Coroners in Middlesex And the Court inclined that the Action is well brought in Middlesex because the Plaintiffs Damages arise here by not having the Body here at the Day Bulmer's Case Rep. and Dyer 159. The Chancery retorns to the Court the same Coroner Answer that the Coroners return to him so that the False Retorn is the cause of prejudice and the other things are but Arguments to prove it And the Court conceived an Action would not lye against one Coroner no more than against one Sheriff of London York c. Mod. Rep. 198. Naylor and Sharpley Of Declarations in Actions for False Retorns In Pigot's Case it was alledged for Error that the Declaration was naught 1. The Bond was made for 200 l. dared Process before the Bond made 29 Aug. 13 Jac. and this was before the Bond made yet being retornable in Michaelmas Term and the Latitat upon it after the Bond its sufficient to maintain the Action and the Process always bears Teste the last day of the Term before 2. The Declaration is The Sheriffs Bayliffs It s not shewed the Defendant did not appear arrest the party and the Sheriff falsly retorned Non est inventus It was alledged for Error that the Declaration was not good because he doth not shew that the Bayliffs delivered the Bond to the Sheriff which they had taken for his Appearance nor is it shewed that the Defendant did not appear Sed non allocatur For these serve but for aggravation of Damages and are supplied by the Verdict Cro. Jac. 561. Pigot and Rogers Fieri fac ' for Debt was delivered to the Sheriffs of N. who executed it after which the Sheriffs were discharged of their Office and new ones elected The old Sheriffs redeliver to the party his Goods taken in Execution and indorse Nulla Action against the old Sheriffs bona on the Writ of Fieri fac ' and deliver it to the new Sheriffs so Indorsed And an Action on the Case was brought against the old Sheriffs for this False Retorn and Judgment pro Quer ' And these Exceptions were taken 1. The Plaintiff in his Declaration does not say that the old Sheriffs did retorn Nulla bona but only that they did indorse Nulla bona which is no Retorn 2. He saith not they delivered this Writ thus indorsed to be retorned i. e. by Indenture 3. It appears not whether any Retorn of the Tho' it appear not that any retorn of the contrary was made by the old Sheriffs Writ were made by the old Sheriffs or the new Per Glyn Chief Justice He conceived it to be well and according to the course in that kind For the old Sheriffs to make the Retorn and to deliver the Writ over by Indenture to the new Sheriffs and here was a Verdict And a Retorn is not properly a Retorn till it be filed here yet it is the Retorn of the Sheriff in the County where he is Sheriff and yet it seems Judgment was reversed Quaere Style p. 474. Toft and Day Action on the Case on a False Retorn of Non est inventus by the Sheriff of Galloway in Ireland It was averred that the Sheriff at the time
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
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
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
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
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
Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a Vâ— Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest suâ—mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded
no Prorogation at all So 35 El. 1. Sect. 11. it said 29 El. 6. Vide 1 Anders 294. Rast Abr. Elenchus Parliam Keb. 3. 742. Sprig and Eve Quaere When one Sheriff shall make the Extent and the other Sheriff the Liberate who shall have the Fees given by the Statute Note The Fees shall be paid by him that sets him at work and not by the Prisoner Of whom the Bayliff on Arrest having taken 7 s. for Attorneys Fees was convicted of Extortion 1 Keb. 623. Le Roy. versus Wade Poundage was allowed the Sheriff out of 100 l. Fine imposed after Conviction on Indictment of Battery in B. R. levied upon a Fieri fac ' and it was allowed out of the Money in the hands of the Clerk of the Crown payed by the Sheriff Tho' there was no President in B. R. for it But the Barons always make such allowance in the Exchequer after the Moneys paid in there by the Clerk of the Crown Sir Thomas Jones 185. Le Roy versus Wade Of Sheriffs Security and Remedy for Fees and what Fees they may take or not and what shall be Extortion in them or not and how punishable What Security the Sheriff may take for his Fees or not The VVarden of the Fleet and the VVarden of the Palace of Westminster may take Bond for Diet and due Fees of the Office Hetly 176. Harris and Lea. The Sheriff may take a single Bill for his The Sheriff shall take single Bill for his Fees but not with a penalty Fees and that is the ordinary course but not with a Penalty To this purpose there is a notable Case Empson and Bathurst Winch 22. The Condition of a Bond to the Sheriff is to pay 20 l. That is for Money which is given to him for his Fees which are due by the Stat. of 29 Eliz. Defendant pleads the Statute of 23 H. 6. c. 10. the Case was A Statute of 200 â— was acknowledged to the Defendant by J. S. and this was extended by the Plaintiff being Under-sheriff and it was agreed between C. E. Brother to the Plaintiff and the Under-sheriff before the Libertate excecuted That the Defendant should enter into the said Bond to the use of the Plaintiff Three Points were resolved per Curiam 1. This Bond is not within the Statute of 23 Statute 23 H. 6. H. 6. for the Party was not within the Ward of the Sheriff And so was Beaufage's Case 2. The Sheriff may not take his Salary appointed by the Statute till a compleat Execution i. e. till the Libertate for the words of the Statute are in the Negative and doth not establish the Fees but only tolerates them And by Hobart Action is by Sheriff if the Conisee sue an Extent and then refuse to sue the Liberate to the intent to defraud the Sheriff of his Fees the Sheriff shall have his remedy by Action on the Case 3. This Obligation is void by the Common Law and Extortion as Dive and Manningham Case is Plowd 65. The Sheriff may take a Bond with a great Penalty for the appearance of the Party but not for his Fees by the 23 of H. 6. for that Statute as to Fees is not repealed by 29 Eliz. What Remedy the Sheriff shall have for his Fees Action of Debt lies for a Sheriff upon the Statute of 29 Eliz. c. 4. for Execution Fees al tho' the Statute doth not say he shall have the Fees nor any Action for them but only saith he shall not take for any Execution made any Consideration or Recompence besides what is therein mentioned which it shall be lawful for him to take viz. 12 d. for 20 s. where the Sum doth not exceed 100 l. and 6 d. above 100 l. 1 Rolls Abr. 598 Proby and Lumly versus Mitchel 1 Rolls Rep. 404. The Sheriff shall have Action on the Case but not debt upon Assumpsit to pay his Fees due by the Law of the Realm for to execute an Execution Moor 699. But he shall have Debt for his Fees not prohibited by the Statute of 29 Eliz. Moor 853. Staunton and Proby Moor 667. Mor. 667. Sâ—llyard and Stamp Where and in what Actions the Sheriff shall not take Fees The giving of Money to a Sheriff to Arrest a Man is against the Law 1 Rolls Rep. 313. A Sheriff cannot take Money for Fees upon delivery of Warrants to his own Bayliff but must stay till the Money is levied aliter if it be to Special Bayliff Moor p. 468. â— 669. Sullyard and Stamp No Fee is due to the Sheriff for Executing a Cap. Utlag Cap. Utlegat either for VVarrant to Execute iâ— or for the Retorn of it Sheriff took 200 l. to Execute Hab. fac Possessionem Hetly p. 52. Wildsheres Hab ' fac Possession Case Litt. Rep. 65. Mesme Case Per Cur ' Its great oppression to the Subjects that the Sheriffs to whom the Statute had given so much in the Pound in Case of Execution against a personal Estate should take such Fees in case of a real Estate and it was said it was not to be found that they have any legal Fee upon this Execution but the usual Fee which they ought to take is 2 s. 4 d. 2 Siderfin 155. What shall be said Extortion in Sheriffs and Gaolers c. and how punishable As to the Sheriffs taking Bonds Extorsivè Vid. supra in tit Stat. 23. H. 6. c. 10. By W. 1. c. 26. no Sheriff or any Minster of the King shall take any reward for doing his Office but only that which the King allows upon pain that he shall render double to the Party c. but later Statutes have permitted them to take in some Cases But yet such reasonable Fees as have been allowed by Courts of Justice of old to inferior Ministers and Attendants on Courts if they be demanded it s no Extortion Co. 1 Insâ— 368. Shirly and Packer 10 Rep. 101. If any Bayliff or other Sheriffs Officer shall take any thing of any person to spare them for appearing at the Assizes Sessions of the Peace or the like it is Extortion If the Sheriff or any of his Officers shall take any Money or other reward for the omitting of any Arrest or Attachment to be made it is Extortion and the Shâ—riff oâ— Officer so offending shall forfeit for every such offence 10 l. to the King and Informer 32 H. 6. c. 10. As to the Punishment of Sheriffs for Extortion it s either by Indictment Information Imprisonment Commitment As to Indictments what is good or not Indictment of Extortion against a Bayliff of Indictment an Hundred qd ' Colore Officij he took Extorsive Money and shews not for what matter or cause Per Curiam It s well enough the Officer being Bayliff of an Hundred Especially being after a Verdict But Quaere of this 1 Keb. 557. the King and Gover. By 23 H. 6. c. 20. on Extortion treble Damages Treble damages are given