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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

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

to the VVrit of Assize That the VVrit was retorned coram nob ' apud Westm ' not saying ubicunque sed non allocat The Court being here it s well enough and the Reason is because it was for the Plaintiffs convenience that it was ubicunque 2. It was Summon ' XII without an M. over VVhich per Cur ' is well enough in Numeral Letters 3. It was qd ' sint ibi Aud. which should be ad Audiendum as Reg. 198. b. But per Cur. This may be intended Auditur ' and so is well enough without ad 4 It was Si fec whereas it should be Si fecerit sed no allocat and a Respondeas ouster awarded 3 Keb. 326. Creek and Norfolk Quare Impedit In a Quare Impedit The Defendant must be Summoned by the Sheriff And this Summons may be made in Church or to the Parson the Sheriff Retorns Nihil upon the Summons and upon the Attachment and upon the Distress the Plaintiff shall recover If the Defendant comes not at the Distress retorned against him the Plaintiff shall have a VVrit to the Bishop without making any Title Dyer 241. A VVrit of Enquiry of value in a Quare Impedit was executed the first day of the Retorn but the Jury did not give their Verdict till two days after Retorn of a quid Juris Clamat Vid. Dalton c. 71. The Sheriffs behavior in the Writ and Inquisition and Retorn of Malefactoribus in Parcis Vid. Cro. Car. 439 The King against the Inhabitants of Epworth and 17 other Villages and Statute W. 2. c. 46. Co. Mag. Chart. CHAP. XXVIII Of Retorns of Clericus Beneficiat ' Of other Retorns as to Clarks The Sheriffs Office in a Quare Impedit Sessions of the Peace The Sheriffs Office as to Election and retorning of Knights and Bugesses to the Parliament The Form of Indenture for the Knights of the Parliament and Burgesses The Sheriffs Retorn of the Writ for Electing Parliament Men. Retorns of Clericus Beneficiat ' c. AT the next County Court after delivery of the Kings Writ to the Sheriff for the Electing Parliament Men Proclamation shall be made by the Sheriff in full County of the day and place of Parliament and all they who are present shall attend and in full County proceed to the Election of their Knights for the same County and after they are chosen the Names of the persons chosen shall be written in an Indenture under the Seals of the Electors and tacked to the said Writ of Parliament Stat. 7. H. 4 15. Upon any Retorn contrary to this Statute of 8 H. 6. c. 7. the Sheriff shall forfeit 100 l. to the King and have one years Imprisonment and shall forfeit another 100 l. to the person chosen Knight of the Shire and not duly Retorned The chosers must have 40 s. per Annum Freehold within the said County The choice must be between 8 and a 11 of Clock in the Forenoon Every Sheriff after receipt of the Kings Writ for Electing Knights of Parliament ought forthwith to make out his Warrants under the Seal of his Office to every Mayor and Baliff of Cities and Burroughs within the County reciting in his said Warrants the Writ of Parliament commanding them thereby to chuse Citizens and Burgesses to come to the Parliament scil if it be a City to chuse Citizens for the same City by Citizens and if it be a Burrough to chuse Burgesses by Burgesses or Freemen of the same Burrough And those Mayors and Bayliffs must make a lawful Retorn of that Precept to the Sheriff by Indentures made between them and their Sheriff of their Election and of their Names which are elected 23 H. 6. 15. And the Sheriff must set his Hand and Seal of Office to one part of the Indentures and then deliver it to them to be kept and to the other part the Mayor or Citizens or Burgesses must set their Hands and Seals and deliver it as their Deeds to the Sheriff to be certified and retorned by him with the Writ of Summons to the Clerk of the Crown and all this under pain of 100 l. to the King and Imprisonment for one year and the Party grieved or other person in his default shall recover another 100 l. But they must commence their Action within 3 Months after the commencement of the Parliament and Mayor and Bayliffs shall pay 40 l. Dyer 113. Pl. 118. Note Action on the Case lies against a Sheriff for Retorning other Knights for the County than were elected and it is against the Statute of 7 H. 4. for false Retorn and 23 H. 6. c. gives Debt in the Case and it s not in the Negative and so does not exclude from other Remedy 2 Siderfin 168. Nevile and Strowd Now the Names of the said Knights shall be Retorned into the Chancery by Indenture Sealed between the Sheriff and the Chusers of the Knights in manner following The Form of the Indenture for the Knights of Parliament Haec ' Indentura facta in pleno Comitat ' Warr ' tent ' apud Burgum de Warr ' de c. Anno Wil●ielmi Tertij c. inter A. B. Mil. Vic. Comitat. praed ex una parte J. C. Mil. A. C. Armig. F. P. F. K. c. multas alias personas Comitat. praed electores duorum Militum ad Parliamentum in Brevi huic Indenturae consut specificat ex altera parts qui ut major pars totius Communitatis praed tunc ibid. existens Jurat examinat secundum vim formam effectum diversorum Statutorum inde edit ' provisor Eligerunt E. P. Mil. J. C. Mil. infra Comitat. praed commorantes Gladiis cinct ' milites habiles magis idoneos discret dantes concedentes praedict duobus Milit. plenam sufficien postestatem pro se tot Communitat Comitatis praedict ad faciend consentiend jis que ad Parliaementum in dicto Brevi content de Communi Consilio Regni dicti Domini Regis nunc Angliae contingerit ordinari super ne●otiis in dicto Brevi spec In cujus rei Testimonium uni parti hujus Indenture penes dictum Dominum Regem remanen partes praed sigilla sua apposuerunt alter vero parti ejusdem Indenturae praed Vic. sigillum suum apposuit Dat' die Anno Loco supradict c. The Form of Indenture for the Citizens and Burgesses THis Indenture made c. reciting the day and year and the Kings Stile at Lage prout supra Witnesseth That by Vertue of a Warrant to me directed from Sir O. R. Knight Sheriff of the County of Warwick for the Electing and Chusing of two Burgesses Men of good Understanding Wit Knowledge and Discretion for Causes concerning the publick Wealth of the Realm to be at his Majesties High Court of Parliament to be holden at Westminster the day of next coming I E. L. Mayor of the Borough or Town of Warwick with the whole assent and consent of the rest

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

Writ of Summons at the day of the retorn Cro. Eliz. 175. Marsh and Astrey and p. 397. Collet and Marsh It was moved in Arrest of Judgment for that It is not averred that the Officer continued in his Office it is not averred he was Undersheriff and continued in in his Office at the day of the Retorn for otherwise the Action lies not against him sed non allocatur 1 Leon. 146. Mesme Case It shall be intended that he continued in his Office for he was Undersheriff when the Writ was delivered to him and 't is alledged that he caused Summons to be made and did not retorn it at the day by which it shall be intended that the Authority was in him The Declaration was that the said Astrey Defendant intendens machinans ipsum querentem in Action● sua praed ' prosequend ' impedire c. did not retorn the Summons but saith not tunc existen ' Undersheriff yet it 's good and if the Defendant were not Undersheriff the same shall come in of the other side Where a man may have a Traverse or Aver against the Sheriffs Retorn and where not It is commonly said in our Books that no Averment shall be against the Sheriffs Retorn which is of Record and therefore in a Redisseisin it cannot be assigned for Error that the Sheriff non accessit ad tenementa as he hath retorned for that is against his Retorn which is recorded Gaudy in Collet and Marshes Case Leon. 183. Holl●●ds Case Gaudy in Collet and Marsh's Case 1 Leon. 397 held against any thing done or retorned by a Sheriff as an Officer there may be an averment as an averment against a Bishops Certificate but the other Justices contra For the Justices ought to credit the Officers Error because the Defendant was not summoned in a Praecipe quod reddat at the Church door according to the Stat. 31 Eliz. c. 3. and by reason of the default a grand cape was awarded and the Sheriff retorned him summoned at the Church Door Per Cur ' he shall not have this Averment but his Action of Deceipt against the Sheriff Cro. Eliz. Action sur Deceipt but not on an Averment 397. Collet and Marsh's Case so Cro. El. 9. 10. Clay 's Case If in Partition the Sheriff Retorn he was there in proper person and this Retorn be received and the Writ filed then the Court cannot examine it for the Retorn is good and the party can have no Averment against the Retorn nor Error The Jury appeared on a Trial and the Defendant would have challenged the Array ore tenus because it was Retorned by one S Sheriff two days after he had received a Writ of Discharge Per Cur ' He cannot Challenge it for that Cause because it would be a direct Averment against the Record for it was Retorned by him as Sheriff and the Retorn accepted Cro. El. 369. Hore and Broom In the Lady Russel and Wood's Case Cro. El. 780. the Kings-Bench would suffer a Traverse to a Sheriff's Retorn because it is False As 4 El. Dyer 412. and in the Common-Bench is usual and Presidents ordered to be searched Sed distinguendum est And I shall shew in what Cases one may aver against the Retorn of the Sheriff A man may aver against the Retorn of the Matter Collateral Sheriff if the Retorn be a matter Collateral As if the Sheriff upon a Capias retorn a Rescous there may be an Averment against it Owen 132. So Winch. p. 100. in another Action Averment may be against the Retorn of the Sheriff tho' In another Action not in the same Action as 5 Ed. 4. for False retorn VVinch p. 100. Stiles versus Sir Francis Glover If the Retorn of the Sheriff concern my Inheritance Retorn concerns ● mans Inheritance I shall have averment against it 2 Rolls Rep. 54. In a Praecipe quod reddat at the Summons retorned he may say that his name is T. B. and that he was summoned by the name of J. B. because otherwise he shall lose his Land by default 19 H. 6. 10. b. If the Sheriff retorn a man outlawed of In Outlawry for Felony Felony he may aver against this Retorn that he came in at the 5th County and tendred Sureties and so was Outlawed for this is in case of Life and Member 1 Ed. 3. 24. b. On Scire fac ' against the Tertenants the Tertenants Defendant after the Retorn of the Sheriff pleads that he is not Tertenant The Plaintiff demurs because as Cro. El. 872. Blood 's Case he is estopped by the Sheriffs Retorn And in Rastall's Entries Tertenancy is traversed And 4 El. Dyer 212. the Retorn of a Capias is traversed as to Rescue And Cro. El. 859. it s agreed that Waste is traversable Waste on the Retorn of the Sheriff But per Cur ' a general Non tenure by Lessee for years is pleadable for else his possession would be disturbed by Ejectment Cro. El. 872. Co. Ent. 620 622. 3. 4. Cro. El. 859. 3 Keb. 170. VVitrony versus Blany So per VVindham In some Cases one may Diversity between a general Nontenure and a special Nontenure pleaded plead and aver against the retorn of the Sheriff as to a Scire facias that there were other Ter-tenants not named for he is not Omniscient And tho' the Sheriff retorn that such are Ter-tenants yet that shall not conclude the Defendant but that he may say another is Tertenant of parcel who is not warned But Rolls is express that Nontenure cannot be pleaded in 〈◊〉 ●gainst the Retorn of the Sheriff 1 Keb. 55. 〈◊〉 〈◊〉 Cro. Jac. 50. Mitchell's Case 2 Rolls 〈◊〉 〈◊〉 In Waste if the Officer retorn That the Jury Waste View had the View yet if the contrary appear by Examination at the Trial the Retorn shall not conclude any of the parties 2 Sand. 255. Green and Cole Tho' a man may not aver contrary to the Averment that he was not Sheriff Sheriffs Retorn yet he may say he which had Indorsed his Name on the Backside of the Writ was not Sheriff because by the Common Law until the Stat. of Ed. 2. c. no Sheriff or Officer used to put their Names to the Retorns and this Averment That he that made the Retorn is no true Officer is not taken away by the Statute Yelv. p. 34. Arundell's Case If Bayliffs of Franchises that have Retorns of Averment against false Retorns of Bayliffs of Franchises Writs make a False retorn the party shall have Averment against it as well of too little Issues as of other things as well as he shall have against the Sheriff but all the punishment shall be upon the Bayliffs Dr. Stud. 2d Book 42. c. The Sheriff retorns a Rescous on Mean process to a Writ of Priviledge and Attachment awarded nisi causa The Preignotaries affirmed that the parties might traverse the Retorn but Tota Curia of Opinion to the

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. à fortiori when it is actually done and he is rescued out of Custody Cro. ad idem that the Action will lie there is a mischief on both sides the Defendant may be twice charged and the Plaintiff may lose his Debt and if the Sheriff brings the Action he may plead the Recovery by the Plaintiff When the Sheriff made his Retorn of the rescous there is no remedy against him and if the party taken be rescued before he be brought to the Gaol there is no remedy against the Executors of the Sheriff If Debt be brought against the Sheriff and in that a recovery the Plaintiff shall never take the Defendant again and so if he bring Action against the party and recovers the Sheriff may plead that and Fitz. N. B. 12 is doubtful Hutton contra That the Action doth not lie The difference is good where a man is arrested upon mean Process and rescued and after becomes nonsolvent so that they who rescued him are the cause of the loss of my Debt it is a wrong upon which he may be Indicted yet the party shall not have remedy against him because he may proceed Yelverton of the same Opinion and agreed the difference By Hutton upon mean Process the Sheriff never had remedy for the

him go It s an Escape unless the Attorney's hand were to it or a Supersedeas delivered 1 Keb. 873. Collet's Case If a man recover against Baron and Feme and Debt lies upon Escape of the Wife take both in Execution and after the Wife is suffered to Escape tho' the Husband continue in Prison yet Debt lies upon this Escape against the Sheriff in which all the Debt shall be recovered for this was the Debt of the Wife and she is as fully in Execution as the Husband And Debt lies on it as well as Action on the Case So if the Feme be only taken in Execution 2 Bulstr 320. 1 Roll. Abr. 810. Dr. Sutloff and Sir G. Reynel 3 Bulstr 150. 1 Roll. Rep. 204 205. Cro. Jac. 657. Whiting and Sir George Reynel Where the Sheriff shall be so chargeable with a Prisoner as to Escapes Where the Action will lye and in what Cases not The Entry of a Committitur upon the Roll In respect of the Entry on the Roll of Committitur shall not charge the Marshal for Escape if there be any after for then it should be in the power of every Attorney to charge the Marshal A Committitur was Ruled to be vacated to the intent the Plaintiff should be at liberty to take out what Execution he will But if the party after such Committitur entred be in the Marshals Custody and then escape the Marshal shall be charged for Escape Siderfin 220. Conny and Jacob. Therefore let the Student beware of the Opinion in Keble 1 Keb. 775. in this Case of Conny's where he tells you the Entry of a Committitur alone is sufficient to charge the Marshal as in Execution for Escape of a Prisoner without actual proof of his being in Execution But the better Opinion is in 1 Keb. 375. in Pettyware and Hamson's Case The Course has been always of late that in case Committitur be entred on Record yet it must be proved he was in Custody since that time because it is the usual Course to enter a Committitur against every Defendant tho' he be upon Bail Wherefore the Court ordered the Marshal to shew whether one were in Custody or not Capias ad satisfaciend ' was delivered to the Sheriff versus J. S. and after the Sheriff did arrest J. S. by force of a Capias Utlagat ' and then the party in the Capias came to the Sheriff and prayed that the party may remain in Execution for his Debt also And the Sheriff suffers him to go at Large and upon both Writs Retorned Non est inventus Per Cur. The Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff in Escape and it is not like where one is in the Fleet for Execution there if other Condemnations in other Courts be Notified to the Warden of the Fleet he shall be chargeable with them all 1 Leon. 263. Scire facias lies not on the Escape of a Bail if no Scire fac ' issued out against him for the Sureties ought not to be taken in Execution presently The Condition of Recognizance of Sureties is That they bring in the Defendant if he be Condemned or to pay the Debt Now if no Scire fac ' issues out against him the Surety being taken cannot plead the Release of the Plaintiff or the death of the Defendant in his Discharge as he might do upon Scire facias 2 Leon. p. 29. Devered and Ratcliff Of Escapes as to the Old and New Sheriffs and Delivering over The Sheriffs of London by Indenture deliver Escape in Law over J. S. in Execution at the Suit of A. and B. severally and only mention the Execution of A. J. S. escapes B. brought Debt against the ancient Sheriffs on this Escape It well lies For he cannot be in Custody of the New Sheriffs for this Execution because they were not charged with this Execution and the fault was in the Old Sheriffs that they omitted this Execution of the Plaintiff in their Indenture and the Escape began eo instante that the Ancient Sheriff delivered the Prisoner to the New for then they cease to have the Custody of him and although he remain in the Rules of the Prison it s an Escape in Law 3 Rep. Westby's Case The Old Sheriff Arrested one upon a Latitat and at the day Retorned Languidus c. and afterwards in exitu ab Officio suo delivered him to the New Sheriff as a Prisoner for this Cause and the New Sheriff suffered him to go at Large This is an Escape in the New Sheriff and an Action of the Case lies against him and tho' the other Sheriff retorned Languidus c. yet this is not material to the Plaintiff he remains always in Prison Cro. Jac. 380. King versus Sir Eusebius Andrews If the Sheriff takes a man in Execution and after a New Sheriff is made and before the other Sheriff delivers over the party who was in Execution escapes The New Sheriff is not chargable for this Escape but the Old Sheriff for the New Sheriff is not chargable with any Prisoner before delivery to him 2 Roll. Abr. 457. Sheriff Skinner's Case One in Execution is willingly let go out of Prison by the Gaoler and then came into the Gaol again then a New Sheriff is and then he makes Escape By Hobart on a Trial at Guild-Hall the New Sheriff cannot be chargable with him nor answerable for him as in Execution for the Execution by such Escape was utterly discharged Neither can two Sheriffs be Answerable simul semel for two Escapes out of one and the same Execution at the same time Hob. 202. Sheriff of Essex's Case One taken in Execution on Ca. sa by the Under-sheriff he took Money of him for the Execution and let him go Then the Sheriff dies and a New Sheriff is and the same Under-sheriff and a new Ca. sa is taken out against the party upon which he was Arrested again and escaped By Hobart the New Sheriff is not Answerable the second taking in Execution being never lawful Hob. p. 202. If the Old Sheriff keep any Prisoner after he is discharged of his Office it s an Escape 2 Leon. 54. Smallman and Lane If one taken upon a Cap ' Escape and the Sheriff die and a new Sheriff be made for the remainder of the Year then the same person is taken by another Cap ' for the same Cause and Escape This will not charge the new Sheriff Hob. p. 202. If the Prisoner walk abroad and returns in the time of one Sheriff and escape in the time of another Sheriff this is no Escape in the time of the second Sheriff Hob. 202. A. was taken in Execution in the time of the New Sheriff shall be charged in Escape upon a new Execution Old Sheriff and then escaped and afterwards in the time of the new Sheriff the Plaintiff again sued a Scire facias against A. upon the said

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