Law that the Plaintiff had no Cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for Bailing those which are contained in the second Branch as those in Execution c Plowd 66 67. Dive and Manningham But as for the Conclusion of the Plea the Condition was That the Defendant should appear in B. R. to Answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his Enlargment and Issint non est factum The Plaintiff demurrs Specially upon the Conclusion of the Plea which ought to be Judgment Si Actio and agreed the Plea to be ill Allen p. 85. Leech Davies The Defendant and L. were joyntly bound Judgment confessed on Escape to Sir J. Lenthall for the true Imprisonment of W. and there was a Warrant of Attorney to Confess Judgment on the Escape of W. Glyn moved to set aside the Judgment being a way for Ease only and Judgment entred without Trial of the Escape But per Cur ' It is to be entred on Action brought which is brought and the parties are at Issue But Sir J. Lenthall assigned his Security to the Creditor which per Cur ' is well enough and there appearing no Fraud they refused to set aside the Judgment 1 Keb. 815. Sir John Lenthall versus Lord Landois The Marshal takes Bond of one in Execution The Rules of the Kings-Bench to be a True Prisoner who Escapes Action is brought against him and well for the Bond is good The Marshalsea was Ruled to be enlarged and this shall be called Within the Rules and if the Marshall take a Bond to tarry there it is good Latch 143. Sir G. Reynell versus Elworthy Poph. 165. fine Sir G. Reynel's Case But a Bond to the Marshal c. to save harmless from Escapes is void and within the Statute because it is not a Bond that he shall continue a True Prisoner Vide the Condition Record and Pleadings 1 Sand. 160 161 162. Lenthall and Cooke 2 Keb. 422. Id. Casus The Marshal ought not to take Bond for Bond for Chamber-Rent void Chamber-Rent this is to come in in Allowance Fees The Warden nor other Gaoler cannot impose what Rents they will on Chambers 3 Keb. 102. Bond and Mosedale 3 Keb. 133 603. Duckenfield's Case A Bond or Covenant for Fees is void but a Bond for Fees Bond for True Imprisonment is not void primâ facie without Circumstances c. 3 Keb. 133. Mosedale and Middleton A Bond for Chamber-Rent is void by Common Law because the party is restrained contra voluntatem and shall be Imprisoned till payment Also the Statute extends to the Marshal only for such Bonds as they may take virtute Officii Latch 10. Epsom Case Upon a Statute acknowledged and Extent sued the Sheriff takes Bond of 20 l. for payment of 10 l. his Fee and this was before the Liberate It s a void Bond 1. Because he takes the Bond before the Liberate 2. He took his Wages before he did his work 3 Keb. 678. Ellis and Nelson Vide infra tit Fees Note A Promise is within the Statute as well Promise as a Bond. But it is where the Bond or Promise is made by the Prisoner himself or some other for him And therefore in an Action on the Case the Defendant promised the Plaintiff That if B. a Special Bayliff at his Nomination arrested A. at his Suit on Cap ' ad satisfaciend ' and suffered him to Escape he would not sue the Plaintiff this is not within this Statute 1 Leon. 132. Palmer and Smalbrook But Hobart in Norton Sim's Case saith Covenant is not within this Statute that is because it was not a Bond for performance made in the behalf of a Prisoner as Beaufage's Case is Hob. p. 13. As to Assumpsits and Considerations about delivering Prisoners in safe Custody saving harmless from Escapes permitting to go at large Vid. infra Sub tit Escape in fine By the Statute of 13 Car. 2. c. 2. persons arrested Where the Sherist is not to take 60 or 40 l. Bail by Process out of the Kings-Bench or Common Pleas not expressing the Cause of Action in the Writ Bill or Process and which are bailable by the Statute of 23 H. 6. c. 10. shall give Bail Bond not exceeding the Sum of 40 l. and upon Appearance at the Retorn he shall discharge such Bail Bonds And if the Plaintiff do not Declare before the End of the next Term after Appearance then he shall be Nonsuit and Judgment and Costs shall be against him But this Statute extends not to Arrests upon Capias Utlagat ' Attachment or Rescous Contempt or Priviledge nor to popular Action or Action on any Penal Law except for Tythes Indictment or Information Now if the Sheriff in such Personal Actions do take a Bond of 150 l. where it ought to be but 40 l. the party shall have an Action upon the Statute against the Sheriff but the Bond is not void This was the Case of a Coroner 2 Keb. 387 311. Foster and Closon And therefore Villars and Hasting's Case where it saith The Statute doth not restrain him from any Sum is good Law but with this Caution That Action lies against him if he exceed 40 l. de placito debiti generally upon this late Statute Cro. Jac. 286. In what other Cases the Sheriff may Bail or not The Sheriff cannot bail one Committed for Felony except it be by the Kings special Writ directed to him for that purpose A man Indicted for Trespass or any the like Offence before Justices of the Peace and thereupon Committed to Prison may upon the Kings Writ be Bailed by the Sheriff to appear at Sessions Upon a Supersedeas the Sheriff may bail a man Sued or Indicted c. whereupon a Capias or Exigent shall be awarded against him and the party thereupon is Imprisoned CHAP. VIII Of Retorn of Writs and when they may be Retorned General Rules and Maxims of Retorns What Writs must be Retorned and what need not What shall be a good Retorn of Writs or how Retorns shall be made in respect of the Person that makes the Retorn as Sheriffs Bayliffs of Franchises c. In respect of the Forms and where insufficient Retorns are aided Where Retorns shall be void for the Uncertainty or Repugnancy What shall be a sufficient excuse for the Sheriffs Non-retorn of a Writ and what not What Acts Process or Appearance shall be good before the Retorn The Penalty on the Sheriff by the Court for Non-retorn A Retorn is but a Certificate made by the Sheriff or Bayliff to the Court from whence the Writ issued of that which they have done touching the Execution of the same Writs There is a difference between the Teste and Retorn of Writs A Retorn
Gaol and A. B. rescued him This Retorn was Insufficient because he did not shew at what place A. B. made the Rescue for it shall not be intended the place where the Arrest was Bro. Ret. 97. Vide plus tit Rescous The Teste of a Writ was 2 Martii 11 Eliz. Prox futur ' how to refer The Retorn was In quarta Septimana Quadrigesimae prox ' futur ' The words prox ' futur ' refer to quarta Septimana not to Quadrigesimae Mo◠365. Barton and Lever In Trespass the Sheriff retorned in the Common That the Defendant was attached per c. how to be retorned Bench that the Defendant was attached per catalla ad valentiam de 10 l. It s a void Retorn for he ought to retorn he was attached by one Beast or Chattel certain and name them that so they may be forfeited Cro. El. 13. Lawrence and Nethersole 1 Anders 51. vid. tit Attachment In Outlawry of Murder the Sheriff retorns Retorn in Outlawry Ad Comit ' meum tent ' apud D. en le County de Northumberland and saith not in Comitat ' meo Northumbriae tent ' c. It s Error for one may be Sheriff of Cambridge and Huntingdon and of Surrey and Sussex 2 Rolls Rep. 52. Alder's Case Action of the Case upon Escape of one taken Time viz. by Ca. sa ret ' Paschae 16 Car. 2. on a Judgment entred in Mich. 16 Car. 2. which is repugnant and impossible and this moved in Arrest of Judgment on the retorn of a Writ of Enquiry But the Teste appearing to be Jan. 16 Car. 2. ret ' Crast ' Ascent ' and that Virtute brevis postea ante retorn ' viz. such a day of May 16. which should be 17. Per Cur ' This is a void Retorn Viz. being expositive only 2 Keb. 101. Hanmer and Unit. Where a Retorn shall be void for the Incertainty or Repugnancy or not In a Replevin on the Causam nobis significes In Replevin if the Sheriff retorn That the Beasts cannot be delivered quia visum inde habere non potuit This is not good because he doth not say accessit ad locum for perhaps he could not have the View because he did not go where the Beasts were 2 Ed. 3. 54. b. Outlawry was reversed because the Exigent had Uncertain retorn of the Exigent Prout sibi constare poterit is ill in retorn an uncertain Retorn 2 Rep. Dr. Drury's Case 141. If a Capias comes to the Sheriff to take a man it s no Retorn that he was found within his Bailiwick after the delivery of the Writ prout sibi constare poterit This is not good but he ought to retorn expresly Quod non est inventus 9 H. 6. 57. So in a Fieri fac ' de bonis Testatoris against Executors if the Sheriff retorn that they have not any Goods in balliva sua after the delivery of the Writ prout ei constare poterit This Retorn is not good for he ought to take notice whether they had Goods or not and so retorn it 9 H. 57. b. But in Debt against an Executor who pleads Retorn on Assets plene Administravit and Assets are found upon a Fieri fac ' the Sheriff retorns that he had nothing within the same County it s a good Retorn Bendloes n. 91. Upon Habere fac ' seisinam the Sheriff retorns Uncertain that the party who ought to take the Seisin non prosecutus est breve This is not good for the uncertain Intendment of it and the coming of the Sheriff to have seisin is not properly a prosecution of the Writ Pasch 15 Jac. Floyd Bethill On Entry sur disseisin of two Acres Hab ' fac ' Repugnant seisinam was awarded The Sheriff as to one Acre retorns Habere feci as to the other Tardè the Sheriff shall be amerced for such a Retorn as being contrary and repugnant in it self As in Ca. sa against two the Sheriff retorns as to one Cepi and to the other Tardè he shall be amerced 2 Leon. 175. Vide Rescous What shall be a good Retorn against the Admittance of the party or not Debt against the Heir If the Defendant In Debt against the Heir pleads Nothing descends to him but an House in B. upon which Judgment is given for the Plaintiff sed quia ignoratur of what value the House was a Writ issues to the Sheriff to enquire of the Value and according to that to make Execution and the Sheriff retorns That the Heir sold the House before the Writ came to him This is not a good Retorn Hen. 7 Jac. B. R. Goldson and Bennet If in Action of Debt against Executors the Defendant In Debt against an Executor acknowledgeth the Action on which a Fieri fac ' issues the Sheriff may retorn Nulla bona c. for this stands with the Judgment inasmuch as he confest the Action but not that he had Goods 2 Roll. Abr. 459. Newman and Babington Upon Habere fac ' seisinam upon a Judgment against J. S. it is no good Retorn for the Sheriff to retorn That J. S. had nothing in the Land nor was Tenant 17 Ed. 3. 66. b. The Sheriff on Levari Retorns That he had Sheriff pleads Levied the said sum which was 2000 l. and in Debt he pleads as to 308 l. Nil debet and as to the rest a Release from the Plaintiff the Plaintiff demurrs Now the Plea of Nil debet is ill and the Sheriff is Estopt to plead it for it is contrary to the Retorn But per Cur ' since they have not relyed upon the Estoppel but taken Issue that could give them no advantage Hob. 206. Speake and Richards What shall excuse the Sheriff for his not Retorning and what shall not As for the Sheriffs retorning a Rescous Vide sub tit Rescous The Sheriff retorned a Resistance on Habere Resistance fac ' seisinam and he was amerced 20 Marks because he did not take the Posse Comitatus and an Alias awarded Hill 19 Ed. 2. Execution 147. On Habere fac ' seisinam it s a good Retorn to That none came to take Seisin excuse the Sheriff that he at all times was ready to deliver Seisin and appointed divers times in certain for the party to come to the Land to receive Seisin but none comes for the party to receive it 2 Roll. Abr. 459. Floyd and Bethell So he ought to excuse himself from the time before the day aforesaid otherwise the Retorn is not good for peradventure he was requested before and would not perform it mesme Case It is no good Retorn for the Sheriff to say That he is not paid his Fees That the party will not pay his Fees and therefore that he would not execute the Writ 34. H. 6. Bro. Ret. 10. The very words of the Writ do enjoyn the Sheriff to make retorn of it and if he be
satisfaction to the party who Recovered The Sheriff may have Trover or Trespass at election against him that takes them away as Wilbraham and Snowe's Case The Plaintiff being Sheriff seizeth the Goods in Execution by force of a Fieri fac ' and after and before the Sale of them the Defendant takes them and carries them away and converts them to his own use and the Plaintiff being Sheriff brings his Action of Trover and Adjudged the Action well lies By the Seizure of the Goods in Execution the Sheriff hath a property in them so that he may reseize them and sell them as well when he is out of his Office as before Mod. Rep. 2 Sand. 47. Wilbraham and Snow Mod. Rep. 57. Ayre and Aden 2 Sand. 244. Mildmay and Smith Yelv. contra fo 44. Therefore Dyer 99. cited in Dalton 147. is not Law which saith That by the Seizure of the Sheriff the property is not altered until they be sold After the Debt levied the Sheriff is Debtor to the Plaintiff and capable of a Release from him the Action ceasing against the Defendant is ipso facto by the Law transferred to the Sheriff having both the Judgment to make it a Debt and the Levy to make him answerable and tho' Action of Account will properly lye in this Case yet the same will many times bear both Actions tho' the Moneys be received by auter mains or the like Hob. 206 207. Speak and Richards The Case is Reported by Roll thus If a Sheriff levy Money upon a Levari facias upon a Recognizance at the Suit of J. S. and Retorns the Writ served J. S. may have Debt against the Sheriffs Executors But in that Case the Plaintiff demurred to the Defendants Plea and Concludes ill 1 Roll. Abr. 418. The Plea was grounded upon a Release and Action against the Sheriff or his Executor for levying money on the Levari and not retorning the Writ should have demanded Judgment if the Defendant should be admitted to plead a Release made after the Sheriff had made his Retorn and in such case Action lies against the Sheriffs Executor altho' it does not appear that the Fieri fac ' on the Judgment was Retorned for this is not material inasmuch as the party is discharged by payment of it without Retorn And this is not grounded on a personal Tort but on a Contract in Law and this is not a simple Contract but principally grounded upon a Record as it was Adjudged in Parkinson and Culleyford's Case But in an Anonymous Case Cro. Car. 297. Action Action by Executor for levying the Debt and not retorning the Writ in vita Testatoris on the Case was brought by Executor against the Sheriff who had levied the Debt in Execution and did not retorn the Writ and after the Testator died and the Plaintiff for that Tort in vita Testatoris and for the Loss which came to him brought the Action The Quaere was if it lies by the Executor because its a personal Wrong to the Testator And the Court was divided Cro. Car. 297. Vide Escape Where and what remedy against the Sheriff for the Money to the value of the Goods taken in Execution or not The diversity lies on the Sheriffs Retorn Retorn If the Sheriff in executing a Fieri fac ' doth not misbehave himself he shall not be charged in Debt or Scire fac ' unless it appear by his Retorn that he had the Moneys in his hands As if the Sheriff retorn Cepi seisiri feci in manus meus bona catalla ad valentiam 160 l. quae remanent in manibus meis ob defectum emptorum On this Retorn the Sheriff shall not be charged in Debt or Scire facias because it appears not that he has misbehaved himself But if upon the Fieri fac ' the Sheriff Retorn That he hath levied the Money and doth not pay it to the Plaintiff at the Retorn of the Writ the Plaintiff may have a Scire fac ' against the Sheriff to shew Cause wherefore the Money should not be levied of the Goods of the Sheriff 2 Sand. 344 345. Mildmay and Smith Hutton 32. 11. Smith and Linsey So if in Fieri fac ' to levy 200 l. Debt c. the Sheriff Retorns That he had made a Warrant to his Bayliff who had seised divers Goods of the said S. ad valentiam of 160 l. and that they were rescued out of their Custody ita quod he could not Levy the Debt and that the said S. nulla alia habuit bona The Plaintiff may bring a Scire fac ' to have Execution against the Sheriff for the Moneys according to the value Retorned and the Sheriff shall pay it out of his own proper Goods 1 Anders 247. Roke and Wilmot With this agrees 9 Ed. 4. 50. Scire fac ' 21. If Old Sheriff Scire fac against the old Sheriff to pay the Money levied in execution the Sheriff Retorn upon a Scire fac ' that he hath levied the Mony and hath the same in Court but hath not the Money at the day and then a new Sheriff is chosen in this Case it being on Record that the Money is levied by the old Sheriff a Scire fac ' shall issue against the old Sheriff to pay it And if he cannot or will not Discharge and pay the Money the Party shall have a Fieri fac ' or Elegit against the Sheriff of his proper Goods On Fieri fac ' the Sheriff seised several Goods which were Mercery Ware and Retorns Fieri fac ' ad valentiam which Retorn was Filed The Sheriff appears and prays to amend the Retorn because some of the Goods were impaired by lying and he could not get Buyers Per Cur ' 1. Such Retorn may not be altered Retorn not amendable after it is Filed after it is Retorned and Filed 2. Where the Sheriff Retorns Fieri fac ' ad valentiam this shall be no excuse of his payment of the Money because he might have Retorned he had seised the Goods and that they remain pro defectu emptorum and then he may be excused if the bona peritura perish Siderfin p. 40. Needham and Bennet Therefore the Sheriffs were ordered to pay the Money and to answer Interrogatives for their Contempt having been ordered to bring in the Money and not appearing till a Tipstaff was sent As to amendment of Retorns Matter of Form Amendment of Retorn in a Retorn is amendable but not matter of fact which goes to justification of the Imprisonment 2 Bulst 259. Dr. Alphouses's Case The Sheriff Demeaner in Executing the Fieri fac ' If the Sheriff have a Fieri fac ' against a Mans Tresp versus vicount Goods and before Execution he pay him the Money in this case he cannot do Execution after and if he do an Action of Trespass or false Imprisonment lies against him B. R. p. 12 Jac. 1. As to breaking open Houses to do
of the Term to the use of the Grantor himself is not void per Stat. 1 H. 7. for this Grant is not to avoid Creditors For the Term being in right of the Wife as Administratrix and if it had so continued in the hands of W. and had never been granted this was not extendible for the Debt of W. and if W. had it as Executor himself it was not extendible for his proper Debt and Fraud shall not be intended except expresly Fraud not to be intended found therefore the Sale is good Cro. El. 291. Ridler and Punter W. had Execution out of the Kings-Bench by Officer first sells on one Judgment and delivers upon another pretending the first Judgment was fraudulent The Sale shall bind the King Scire facias of a Term which was sold by the Bayliff of a Liberty After upon another Judgment the Bayliff delivers this Term to another pretending that the first Judgment and Execution was fraudulent But per Cur ' it is not well done for he is not a Judge of Fraud and the Court will not allow such pretence to Sheriffs and Officers Latch p. 53. Warrington's Case If the Sheriff extend or sell a Lease this Sale shall bind the King as to his Debt because it is but a Chattel and there was no Covin 8 Rep. 171. Sir Gerrard Fleetwood Upon an Execution against the Husband for Sell the Wises Term for the Debt of the Baron his Debt the Sheriff may sell the Wives Term during her Life Co. Lit. 351. a. The Form of a Retorn of Fieri feci on a Fieri facias Vide Dalt c. 61. Whether a Fieri fac ' upon a Judgment in the Kings-Bench shall go into Wales Plaintiff recovers a Debt against the Testator in B. R. the Action was laid in London and after the Death of the Testator the Plaintiff after Judgment in Scire fac ' sues a Fieri fac ' at London upon which the Sheriff retorns nulla bona by which he sues a Testatum fieri fac ' to the Sheriff of Montgomery in Wales directed to levy the Moneys recovered de bonis Testatoris in manibus Executoris Upon which Writ the Sheriff Retorns this EGo C. L. Baronet ' Vic. infra-mentionat ' Comit ' Montgomery domini Regi humillime Certifico quod infra specificat ' Comitat ' Montgomery est un ' duodecim Comitat ' infra Principalitat ' sive Dominium dicti Dom ' Regis Walliae ubi Breve Domini Regis ipsum regem minime tangen ' non currit quodque non patet per istud breve quod idem breve dictum Dom ' regem ullo modo tangat unde advisament ' Curiae dict' Dom ' Regis coram ipso Rege humillime imploro si mandatum istius brevis exequi poterim C. L. Baronet Vic' The Sheriff on this Retorn was amerced Sheriff not to dispute the Jurisdiction of the Court. and that the Plaintiff should have a new Writ For the Sheriff by his Retorn ought not to dispute the Jurisdiction of the Court to which he is a Minister But if the Court erroneously award Process which was not to be awarded the Sheriff ought to obey and execute it but the party grieved may shew this Matter to the Court and pray that they will supersede their Erroneous Process and so have remedy But as to the Question vid. 2 Sand. 194. Draper and Blaney 2 Keb. 657. Draper's Case 715. Elegit lies into Wales and so doth Execution on a Statute Merchant and that breve Dom. Regis non currit in William is intended of Originals not on Judicials 3 Keb. 170. Witrong and Blaney 1 Bulstr 54. Hall and Rotheram Cro. Jac. 484. A Capias on a Fieri fac ' lieth into Wales 2 Keb. 715. It was the Opinion formerly that a Fieri fac ' on Original Judgment in B. R. doth not lye into Chester Vvales c. but as Dyer the Court shall send the Record and Writ thither And in Action of Debt there it may be but it s granted every day into Lancaster VVales c. 2 Keb. 410. The King versus Needham and Bennet A Writ of Execution goes into VVales and 27 H. 8. c. 26. makes this plain for by it VVales and England are annexed PLowd fo 200. Stradling and Morgan CHAP. XVIII How the Sheriff is to demean himself in giving Possession and Seisin upon the VVrits of Habere fac ' possessionem or Seisinam As to the manner of doing or the retorn of a Supersedeas VVhere it shall stay the Sale of Lands or Goods or not VVhat amounts to a Supersedeas VVhere and when a VVrit of Error is a Supersedeas Of Audita Querela IN all Cases where the Execution of a Judgment The Sheriff to make Execution of the thing at his peril in which the Demand is of a thing certain If the Sheriff do this thing he is not any Disseisor But where the Execution is in the generalty without mentioning of any thing in particular there the Sheriff ought to make Execution of the right thing at his own peril Diversity otherwise he shall be a Disseisor for he is bound to take notice of it and he had not any Warrant from the Court to make Execution of any but the right thing As if a man recover in Assize divers Houses and after the Tenant reverseth it in a Writ of Error and a Writ of Execution issues to the Sheriff to put him in possession of the Houses which he had lost by the Judgment altho' the Tertenants are Strangers to the Recovery and for this they ought not to be ousted without Scire facias against them yet if he do Execution by putting them in possession by force of this Writ he shall not be any Disseisor for that he hath the direct Authority of the Court to do it Pasch 15 Jac. Floyd and Bethel So in Judgment for the Casual Ejector for 47 Houses and on Habere facias possessionem the Sheriff turns out these 47 Tenants and 80 other Tenants without any Process or Plea against them Per Cur ' We will not grant any Writ Trespass against the Sheriff for wrong executing Possession to supersede the Execution against the 80 Tenants for if it should be it ought to be quia erronice and there was not any Error in the proceedings against them because there was not any proceedings But they did Advise that every one should bring Trespass against the Sheriff 2 Siderfin 155. If the Sheriff do deliver possession of more Case against the Sheriff for delivering more Acres than are in the Writ Diversity Acres than are in the Writ this makes not the Writ erroneous but in such case Action on the Case lies against the Sheriff for doing it or an Assize against him that hath the possession delivered to him for the Surplusage of the Land But if the Writ of Hab. fac possess to deliver possession to the Plaintiff of Lands recovered
to the party Cro. Jac. 288. Burton and Eyre So the Sheriff shall not take advantage of Error in the Process as in B. R. the Plaintiff had Judgment to recover more than was due to him 2 Sand. p. 100. Jaques and Lockart To this agree Fitz. Tit. bar pl. 253. Debt was brought against a Gaoler for Escape who said the Sheriff did not deliver him lawfully to him Process discontinued But Per. Cur. he is not to meddle whether the Sheriff delivered him lawfully to him So 21 Ed. 4. 23. b. Action against a Gaoler for suffering one condemned to go at Large ' it s no Plea to say that the Process was discontinued before the Judgment given for he was a stranger to it Dier 66. 15. 4 Rep. 84. Southcotts Case If the Prison be broken by the Kings Enemies Prison broken by the Kings Enemies shall Excuse the Sheriff not if done by Rebels and Traitors Escape by sudden force shall excuse the Sheriff this shall excuse the Sheriff from Escape for the Gaoler could not resist them and he can have no remedy over but if a Prison be broken by Rebels and Traitors within the Realm so as the Prisoners Escape this shall not excuse the Escape for the Gaoler may have his remedy over If the Prisoners Escape by sudden Fire this shall excuse the Sheriff for it is the Act of God Dier pl. 66. Where the Escape of one shall be a discharge of the other or not and where the other shall have Audita Querela or not Vide Supra Two are bound joyntly and severally and one is in Execution and the Gaoler suffers him to Escape voluntarily this cannot be pleaded by the other for it is no discharge of the Debt and by consequence the Action lies against the other now where two are bound joyntly and severally one was condemned and taken in Execution and after the other was sued condemned and taken the first Escapes the other shall not have Audita Querela Because it must be an Execution with satisfactio and tho the first may have Debt on Escape against the Sheriff yet there ought to be satisfaction in Fact before Audita Querela lies and perhaps the Sheriff is worth nothing And if the Defendants were sued by one Writ and several Praecipes altho' the Entry should be Quod unica fiat Executio this is intended to be with Satisfaction for he shall have both their Bodies But if two are taken in Execution for Debt and one Escapes Debt lies against the Sheriff and after the Debt recovered against the Sheriff or against the other the other which remains in Execution shall have Audita Querela to be relieved but the Audita Querela Body taken in Execution is no satisfaction for the Debt 6 Rep. 86. Blomfield's Case Cro. Jac. 351. Pendavis's Case Cro. El 478. 2 Bulstr. 321. And so is Hobart express The Escape of one joynt or several Obligor where both be in Execution shall not discharge the other Hob. p. 2. 59 60. And therefore the Escape of one in Execution where two are bound in a Bond is no Plea to the Bond and tho' he escaped by the voluntary permission of the Sheriff so as the Plaintiff is entituled to an Action against the Sheriff yet that shall not deprive him of his Remedy against the other Obligor But if he had pleaded That the Sheriff suffered him to go at Large by the License of the Plaintiff it might have been pleaded in Discharge Cro. Car. 75. Whitacre and Hankinson G. and A. were joyntly bound to T. in a Bond of 7000l The Obligee takes several Actions and had two several Judgments and sued both to Outlawry and A. was taken upon a Cap. Cap. Utleg Utlegat by the Sheriff of D. who voluntarily suffered him to Escape T. brought Debt against the Sheriff and Recovered and received satisfaction and proceeded to take A. but A. brought Audita Querela And he failed in his Declaration because the Satisfaction made by the Plaintiff to the Sheriff was not Specially pleaded viz. Time and Place where it was made for it is Issuable and it may be made after the Audita Difference between Action of Debt and Case Querela purchased But if T. had recovered only Damages in Action of Case for the Escape the Plaintiff should have had no Audita Querela but here he recovered his Original Debt in Action of Debt grounded upon the Escape Mod. Rep. 170. Alford and Totnell The Escape of any one upon a Joynt Judgment Any one on Joynâ— Execution escapes Debt lies for the whole and Execution the Debt lieth for the whole especially if they be in several Prisons as 5 Rep. 87. Blomfield's Case Tho' the Duty wholly survived by the Death of the party escaped before any Action brought and tho' the Executor of the party dead is discharged But if the Death of one before the Action brought doth discharge the Escape By Hales and Rainsford it doth not By Wild and Twisden it doth 3 Keb. 305. Lutterell and Mosedale Of Actions on the Case or Debt by the party against the Sheriff c. for Escape If a Suit be in the Admiralty for a Matter Where to bâ— ought arising super altum Mare and upon this the Defendant is in Execution and escapes the Plaintiff may have an Action for this Escape in B. R. Action on the Case for Escape lies at Common Law but no Action of Debt lay at Common Law but the party was driven to his Special Action on the Case which Action was grounded on a Trespass or Tort and not upon any Contract in Deed or Law 1 Roll. Abr. 536. Brightwight and Taylor But now Action of Debt lies against the Sheriff or Gaoler for an Escape upon the Statute W. 2. c. 11. 1 R. 2. c. 12. 1 R. 2. c. 12. gave Debt against the Warden of the Fleet and so it is in equity against the Marshal And tho' the Statute limits the Action to be brought by Writ of Debt which is by Original yet a Bill of Debt lies by the equity of these Statutes And forasmuch as this Statute gives remedy by Debt it gives Damages also And this Act doth extend to Feme Coverts and Keepers of Gaols for escape of Prisoners in Execution 1 Leon. 17 Cro. Jac. 658. Now we will consider Actions for Escape On Mean Process Execution On Mean Process It is said 1 Roll. Rep. 389 440. Action on the Case lies on Escape on Mean Process Case lies not for Escape on Arrest in Mean Process but upon Execution it doth But in 1 Rolls Abridgm 99. If a man be arrested on Mean Process at the Suit of J. S. and he escape J. S. shall have a Special Action against the Sheriff on this Escape 1 Roll. Abr. 99. May and Proby If a man sue a Latitat to the intent to Declare against the Defendant after Arrest in Castod ' Maresc ' in Action of Debt and the
Sheriff arrests him and suffers him to escape an Action lies against the Sheriff shewing this Special Matter and he shall recover his Damages having regard to the loss of his Debt 1 Roll. Abr. 537. And so is the Bayliff of Newcastle's Case Escape on Mean Process of one in Prifon for want of Bail lies against Bayliff of a Franchise One brought an Action against J. S. before the Mayor Bayliffs and Stewards of N. where the Bayliffs are the Gaolers of the Town-Prison and J. S. is Committed to the Bayliffs on Mean Process for want of Bail and they let him at Large before Judgment and Execution and after the Plaintiff recovers against him The Plaintiff may have a Special Action against the Bayliffs for the Escape for by it he is deprived of the speedy means to have him in Execution after the Judgment 1 Roll. Abr. 99. The Bayliffs of Newcastle's Case On Executions If the Sheriff suffers one taken by him in Execution to Escape the party at whose Suit he was taken in Execution may have an Alias capias against the party that escaped to take him again in Execution or an Action on the Case against the Sheriff Pract. Reg. 145. If the Sheriff takes one by Capias ad satifaciend ' Action lies tho' the Writ be not retorned in Debt if he after permits him to go at Large and Retorns not the Writ yet Debt lies on this Escape for there is a Record of which the party shall take advantage tho' the Writ be not Retorned Cro. El. p. 16. Clipton's Case Action on the Case upon Escape of Escape on Cap. Utleg one brought in Execution by force of a Cap. Utlegat ' is tam pro dom ' Rege quam pro seipso and the party shall have all in Damages An Action on the Case Tam pro dom ' Rege quam pro seipso was brought for that he had a Capias Utlegat ' after Judgment against J. S. and delivered it to the Sheriff of D. to execute it who seeing J. S. and being desired to execute it would not do it but suffered him to go at Large and afterward the said Sheriff Retorned Non est inventus Per Cur. The Action is well brought and the King is to have the benefit thereof as well as the party And in his Declaration he Declaration need not cite the whole Record but begin at the Judgment quod non recuperasses for it is but a Conveyance to the Action and it s not necessary to shew the whole Record and it sufficeth to begin at that which is the Cause of Action Cro. Jac. 532. Parkhurst and Powell Cro. El. 877. Eden and Floyd Cro. Jac. 360. Barret and Winchcomb Who shall have an Action of Debt or Case upon Escape or to whom it shall be said an Escape or not at Election And this is to be considered in the Case of a Capias Utlegat ' or a Capias pro fine or where one shall be said to be in Execution without prayer of the party and where not If a Cap. ad satisfac issue upon a Judgment in On Cap. Utlegat Action of Debt and the Sheriff Retorn Non est inventus and thereupon he is Outlawed and afterwards a Capias Utlegat ' issues out against him upon which he is taken and Imprisoned and after is permitted to go at Large the party who recovered shall have Action of Debt upon this Escape against the Sheriff for he was in Execution against him also because he cannot have a new Capias ad satisfaciend ' And if he escape altho' he was taken at the King's Suit yet the party had such Interest in the Body that Where one taken on Capias shall be in Execution at the Suit of the party without Prayer he shall have Action of Escape against the Sheriff and before the Plaintiffs Prayer to have him in Execution he is in Execution at his election So that if the Sheriff suffer him to go at Large before the Plaintiff hath determined his election it s an Escape against the Plaintiff if he will and an Action of Debt lies Yelv. p. 20. 1 Roll. Abridgm 810. 5 Rep. Garnon's Case A. recovers in Debt vers D. in Banco Communi and sues a Capias ad satisfac and an Exigi post cap. and Outlaws the Defendant who brought Error in B. R. and Judgment affirmed and within the year a Cap. Utlegat is awarded and the Defendant taken and the Sheriff suffers him to escape before the Retorn of the Writ Action lies against the Sheriff The Defendant here being taken by Cap. Utlegat out of the Kings-Bench shall be in Execution for the Plaintiff presently after the Arrest if he will altho' he was never brought into Court nor the Court committed him in Execution for the party 5 Rep. Garnon's Case As to a Capias pro fine Note In all Cases when the Plaintiff may On Cap. pro fine he shall be in Execution at the Suit of the party have a Capias ad satisfaciend and the Defendant is taken by Capias pro fine he shall be in Execution for the Plaintiff if he will without Prayer As a Capias pro fine on Recovery in Assumpsit and also a Cap. ad satisfac retornable the same Term at one and the same Retorn and as to the Capias pro fine the Sheriff Retorns Cepi corpus and as to the Cap. ad satisfaciend Non est inventus If the Sheriff in such case takes the party by Capias pro fine now upon this taking he is in Execution for the party and if the Sheriff let him go at Large he shall answer for the Escape 1 Leon. 51. Hudson and Leigh So if a man be taken by a Cap. pro fine for denying his Deed in an Action of Debt and is suffered to go at Large he who Recovers shall have Debt against the Sheriff for the Capias is ad respondend ' tam nobis quam parti 7 H. 4. 4. So in Recovery on Forger of False Deeds if the Defendant be Imprisoned for the Fine at the Prayer of the King's Attorney if he be suffered to go at Large before satisfaction to the Plaintiff he may charge him for the Escape because he is in Execution to the party upon the Prisal at his election For he ought to be in Execution at the Suit of the party before Suit to the King because the Suit of the party is the Original and the Fine but accessary because of the Suit 7 H. 6. 6. b. But if a man be taken by Capias pro fine for Where no Capias lies in the Original he shall not be in Execution before Prayer of the party the King where no Capias lies in the Original as in Assize with Force c. and suffered to escape before Prayer of the party to be in Execution for his Damages the party shall not have Escape against the Sheriff because he would not be in Execution for
him before Prayer CHAP. XXII Action for Escape by Executors or Administrators where it lies or not Against whom Action of Escape lies Where Execution shall be after Execution on Escape and where it shall not be a Discharge of Execution but that he may be retaken again Of laying the Action and manner of Declaration in this Action Where the Sheriff shall have his Action against the Prisoner that Escapes and how to Declare Action of Escape by Executors or Administrators and how to be brought IT is made a Question in Jones 173. and On Meaâ— Process Latch 67. Lemason and Dixon's Case Whether an Executor shall have an Action on the Case against the Sheriff for an Escape in the time of the Testator on Mean Process But the better Opinion seems to be The Executor cannot have any Remedy The Escape being in the time of the Testator it is a Personal wrong to the party moritur cum persona Latch 67. Jones 173. But on the other side it was said by Dodderidge The Executor shall have this Action and that it is within the equity of the Statute of 4 Ed. 3. for it is a Wrong tho' upon Mean Process and the Tort continues as to the Executor for every thing which makes to the hindrance of the execution of a Will is a wrong to him and the performance of Wills is much favoured in Law And if this Action would not lye it would be a mischievous case for as soon as the Creditor dies the Gaoler may suffer the Prisoner to escape because none may have Action against him Two Judges were against two Whitlock's diversity was This Personal Tort may be considered in two respects as a Crime punishable and that is gone or as a Tort to the party and then it is but reasonable that the Executor should have remedy But it is agreed by all according to Fitzh N. B. After Judgment 121. That if it were upon Escape after Judgment that the Action would lye by the Executor therefore quaere as to Wade's Case 2 Keb. 616. The Executor moved for a Scire facias against the Defendant escaped out of Execution in the time of the Testator and that the Committitur then entred may be vacated Per Cur. albeit the party or the Gaoler on Negligent escape or the party on Wilful escape may take him again yet not by a New Process or Capias after a Committitur nor can the Executors have any Remedy But Stile 's Rep. p. 32. Boomer and Payt is positive That the Administrator may have Action of Debt against a Sheriff for the escape of a Prisoner suffered in the time of the Intestate But this was in the case of Execution So that the difference seems to be whâ—re the Diversity Escape is one Mean Process and where it is out of Execution Another difference is betwixt an Escape in Diversity between Escape in the time of the Testator and the time of the Executor the Life of the Testator and an Escape in the time of the Executor upon Execution in the time of the Testator And it is agreed for Law That if a Prisoner escapes in the time of the Executor the Executor may have Action of Debt Bâ—t the Question is in Sir George Reynell and Langcastel's Case and it is Adjudged that it ought to be in the detinet only for it is grounded It must be brought by Executor in the Detinet on the former Judgment And as an Action of Debt on the first Judgment shall be in the detinet So here and the difference was taken Where the Action is grounded upon privity of Contract it ought to be in the detinet Aliter when grounded upon a Tort. So is the same Case Hob. 272. by the name of Langcastel and Sidley If it were in the debet and detinet the Plaintiff should recover for his own use So it is in Stile 's Rep. 32. Martin and Hendley and 2 Roll. Rep. 132. So Executor brings Debt upon Escape of one who was Bail in the Recognizance with c. to his Testator it must be in the detinet Lane's Rep. p. 80. Carew's Case Note In Debt for Escape broght by the Costs Executor if he be Nonsuit he shall not pay Costs 1 Roll. Rep. 63. The Plaintiff brings Action on the Case as Executor against the Sheriff Defendant for Escape and had Judgment given him per nomen of Executor This Judgment past by Non sum Informatus Error was brought because the first Judgment was given for him as Administrator and this in Action on the Escape and the Judgment on it was per nomen of Executor Dodderidge put the Case The Administrator hath one in Execution for Debt the Sheriff suffers him to escape he brought his Action of Debt against the Sheriff for this Escape and recovers and after all he finds a Will by which he himself was made Executor The Recovery shall now be good and this Money recovered against the Sheriff shall be Assets in his hands and no Audita Querela in this Case lies against the Sheriff And Crook of the same Opinion Houghton contra If the first Executor dies Intestate his Administrator shall not have an Action of Debt against the Sheriff for this Escape no more shall the Executor here in the Principal Case have his Action against the Sheriff for the escape of him that was in Execution at the suit of an Administrator The Executor here hath no privity to sue Execution upon this Judgment because the Scire fac ' depends on the Satisfaction and to this he is not privy The Court being divided it was Compounded 3 Bulstr 112. Slingsby and Lambert Cro. Jac. 394. 1 Roll. Rep. 276. Godbolt 262. mesme Case Action on the Case lies by Commissioners of Action on the Case by Commissioners of Bankrupts for an Escape Bankrupcy for suffering one to escape who was Committed by them because he refused to be examined 1 Roll. Rep. 47. Barnes and Cary. Against whom an Action for Escape lies If the Under-sheriff takes one in Execution Against an Under-sheriff and suffers him to escape Action of Debt lies against the Sheriff himself But there is a Case cited in Marsh and Astrey's Case 1 Leon. 146. The Under-sheriff suffered a Prisoner to escape and the Action was brought against the Under-sheriff For saith the Book it may be the Under-sheriff himself had not Notice of the matter and I conceive it s no matter whether he had or not he having Security from his Under-sheriff and the Writ was delivered to the Under-sheriff and he took a Fee for it But this seems not to be Law The Sheriff is the person in Court alone to answer all Misdemeanors Where Action lies against the Under-sheriff or not of Under-sheriffs or Bayliffs As the Under-sheriff lets one go that is arrested upon a Latitat and Retorns Non est inventus No Action lies against the Under-sheriff but the Sheriff shall
Execution Plaintiff replies that true it is he sued a Capias ad satisfaciend and the Defendant was taken thereupon but he presently Rescued himself and escaped Per. Cur. the Replication is good and it is no reason the Defendant should take advantage of his own wrong tho 't is no good retorn upon a Capias ad satisfaciend that the Defendant Rescued himself nor any Plea in Debt or Rescous escape and the Plaintiff may have as well his remedy against the party as against the Sheriff and the party hath Liberty to begin again de novo by Action on the Judgment or against the Sheriff Cro. Jac. 240. Robinson and Clayton 1. Keb. 660. If a man upon a Capias ad satisfaciend be taken New Execution upon Rescous in Execution and after Rescues himself from the Sheriff and Escapes the Plaintiff may have a new Capias against him and take him again the first Writ not being retorned or filed nor any Record made of the Award and this on a Sci. fac after the year because he shall not take advantage of his own wrong and so he may have Elegit or any other Writ And so it is if the Sheriff had retorned the Writ and Rescous the Plaintiff may have a new Capias against him 1 Rol. Abr. 904. Mounson and Clayton and Radford and Hopkins If one in Execution Escape and the Sheriff Fresh suit makes fresh persuit after him and takes him again altho it be a long time after yet he shall be said to be in Execution again because he shall not take advantage in his own wrong 3 Rep. Ridgways Case Where one is taken lawfully in Execution and after discharged by Writ of Error and after the Judgment is affirmed a new Capias lies not against him but Execution shall be awarded against his Sureties if he will not render himself But if the Execution is reverst because he was never lawfully taken in Execution as if he be taken after the year without any Sci. fac he may be retaken again Lach. p. 292. Sir W. Fish and Wiseman Escape Laying the Action and Declaration Rule Debt upon Escape ought always to persue the first Action Therefore where the Plaintiff as Executor brought Debt against the Sheriff of I. on escape of E. B. against whom they recovered a Debt of 82l as Administrator of I. S. reciting all the Record in Certain It is erroneous For the first recovery was as Administrator of I. S. and the Debt on escape is as Executor of I. S. which cannot be that one should die Intestate and have an Executor Cro. Jac. p. 394. Sir H. Slingsy vers Lambert The Plaintiff declares against the Sheriff of Devon for an Escape at Exeter which is a City and County it self and not part of the County of Devon yet good after a Verdict for it shall be intended the Defendant had the Custody of his Prisoner in Exon ' either by Hab. Corp. Action against one Sheriff of London and declares he â—as in Custody of both or on fresh persuit Sider 364. Hopping and Holmes The Plaintiff declares that the party was in Custody of both the Sheriffs of London and the Action is brought against one of them the Prisoner that escaped being in Ludgate in the Custody of the Defendant only the Declaration is good for the Prisoner was in Custody of both the Sheriffs tho he was in the Custody of the Defendant and it stands well enough with the Record and the words existen in custod is a good Averment that he was in Custody and the word ut prefertur do not hurt the Averment Stiles Rep. 297. Drinkwater and Pack Declaration Rule If the Party in his Declaration doth shew he hath no Cause of Action in such Case if the Sheriff by force of a Capias to him directed doth Whether the Sheriff shall take advantagâ— of the insufficiency of the Count. take the Party in Execution and suffer him to Escape no Action of Debt lies against the Sheriff for this Escape But in Dyer 67. a. 2 Bulst 62. 9. In Action on Escape against the Sheriff or Gaoler they shall not take advantage of the Insufficiency of the Count but shall answer to the Escape The same Law is of an Error in the Record or Discontinuance because they are Strangers to it no more than a Stranger shall falsifie a Recovery by matter Dilatory Dyer 67. a. Rule The Declaration in Escape ought to mention the first Judgment or the Plaintiff ought to shew he had recovered on Judgment And it is not sufficient to say qd ' recuperasset The Case was qd ' cum the Plaintiff recuperasset vers J. S. c. prout patet per Recordum and that upon this a Capias issued out and J. S. was taken by the Defendant and Escaped It is too general for non constat by the Declaration that any Judgment was ever given against him and then he was not well taken in Execution 1 Sanders 38 39. Jones and Pope Sider p. 307. 2 Keb. 63. Mesme Case 1 Sanders 34. Careswells Case And tho' the Sheriff be in Contempt if he let him Escape yet no Debt ariseth unless there were a Judgment and tho' it be said the Sheriff took him in Execution and for Debt unde convict ' est yet this is but a recital of the Writ Declaration in Escape may be according to the Writ viz. that he Escaped out of the Custody of the Sheriff or Bayliff this is in Action on the Case Siderfin p. 332. In Case Declaration That the Sheriff the Defendant had arrested L. at the Suit of the Plaintiff by a Lat ' sued out of the Court the 21 of January and that by the Escape the Plaintiff had lost his Debt of 119 l. Upon not Guilty the Jury find that the Writ was Teste 28 of Novemb. But revera sued out of Court the 21 of Jan. and that Habeas Corpus was sued by the Plaintiff retornable Mense Pasche with intention to declare then against the said L. But the Defendant upon another Writ of Habeas Corpus without the assent or notice of the Plaintiff sued and retornable Tres Pasche duxit the said L. ad respond ' to the Plaintiff in Trespass ac etiam bille of 19 l. where the said L. was in Custody of the Defendant ad respond ' the Plaintiff in billa de 119 l. and so the said L. was permitted to Escape Moved in Arrest of Judgment because the Action is founded upon an Arrest at the Suit of the Plaintiff by virtue of another Writ than the Writ found by the Jury and the Plaintiff might have declared otherwise videl ' that he had sued a Lat. Teste 28 Novemb. But per Cur. there is veritas Legis veritas Facti and the Declaration is according to the verity of the fact and by necessity of Law the Teste of the Writ ought to be in Term and so is the course Judgment pro Quer ' Sir Thomas
Jones Rep. p. 149. Walbury and Saltonstal Tho' it be not shewn that the Prisoner did It is not necessary to be shewed that he did not appear at the day not appear at the day for if he did not appear then the Plaintiff was at no loss yet that is not Error in the Declaration for tho' he did appear yet the Tort is not purged Cro. El. 289. Appleton and Burr A Declaration is against a Sheriff that he suffered his Prisoner to Escape and had retorned Cepi Corpus parat ' habeo whereas revera he had not the Body at the Retorn of the Writ Quaere if this Declaration was for the false Retorn or for the Escape or for both To this Declaration the Defendant might have pleaded the Stat. of 23 H. 6. but he demurred generally and so has lost the advantage of the Statute which is a private Statute and the Defendant has confessed the Escape by the Demurrer vide supra Sanders 154 155. Benson and Welby So that if the Escape be well alledged the Court will not countenance Error in other Non Formalities The Declaration was whereas he had brought a Writ of Debt against M. W. and recovered and shews all the matter of the Escape c. and then it is as usually in the Common Bench unde queritur qd ' cum he brought a Writ of Debt against M. W. c. and saith not the aforesaid M. VV. and so it may be a Stranger and therefore not good Cro. Jac. 188. Burton and Eyre But upon Conference with the Prothonotaries Course of Declaration C. B. it is the common course in Actions on the Case after recital of the Writ in the unde queritur to begin de novo and not to say praedict ' c. And Per Curiam both courses are well enough And so it is tho' there be an Error in Fact Error in Fact not to be assigned on the Escape As in the Case of Jaques Car. 2. which was On Non Omitt as Capias and Escape The Capias was of 50 l. and to answer 5 l. Alano Lockart Prothonotary And the Judgment in Debt on the Escape by default is 50 l. and this was assigned for Error for the Judgment and Capias was but of 50 l. as to the Party But Non allocatur for upon the whole the Judgment is right and but an Error in Fact which cannot be assigned on the Escape 2 Keb. 646. 2 Sanders 98. Jaques and Keble In Escape against the Marshal the Plaintiff Declared That whereas J. S. was indebted to him by Bond and thereupon arrested by Latitat and put in Bail and the Plaintiff obtained a Judgment who thereupon in Discharge of his Bail did render himself to Sir John Lenthall in Execution and afterward Sir John Lenthall the Marshal suffered him to Escape To this it was excepted that he rendered himself to the Marshal whereas he ought to say he rendered himself to the Court for it is the act of the Court that turns him over to the Marshalsea and a Judge can only take and discharge the Bail But it s here that he rendered himself to Sir John Lenthall in Court Which is well enough Stiles Rep. 330. Child and Sir John Lenthall As to Declarations upon Escape after delivery from the old Sheriff to the new Sheriff and the manner of declaring I shall cite two Cases Declaration as the old and new Sheriff which will much inform us in that point The Declaration was That he was in Execution of the old Sheriff and delivered to the new Sheriff and then committed to the Marshal by Habeas Corpus and then suffered to Escape Cro. Jac. 587. Dowdswell and Sir G. Reynel This exception was taken to the Declaration It must be shewed that the old Sheriff delivered him cum caus to the new Sheriff because it was not shewed that the ancient Sheriffs delivered him in Execution with the Causes of Imprisonment to the new Sheriffs for otherwise it is an Escape in them and not in the Marshal as in VVestbies Case For it may be he was delivered per Indenturam debito modo confectam for other Causes and this Cause was not mentioned And a Declaration ought to be certain to every intent and tho' it be said virtute cujus he was in Execution under the new Sheriffs yet that does not help it for it is but the conclusion of the Premisses and if the matter before does not shew he was in Execution that pretextu cujus will not serve In Debt on Escape The Original and Capias which was retornable Cras Martin in Michael ' 78. was set forth And that Sydly in exit ' ab Officio in December after the Retorn delivered him over to C. and it appears not that the Prisoner was ever in the Custody of Sydley But by VVindham he could not else be turned over and it is expresly said he was in Custody and it may be no Writ was retorned by the Sheriff and tho' in Law he cannot be in Custody till the Retorn yet that shall be now intended neither need it be said that the Sheriff was continued in his Office above a year 1 Keb. 632. Hargol and Creamer Of Declaring in Escape upon Outlawry there Declaring in Escape on Outlawry are also two Cases which will greatly direct us One was Outlawed by the Plaintiff and by Habeas corpus he was delivered to the Marshalsea and escaped Now the Declaration may be for the party only and it need not be an Action on the Case tam quam tho' here is a Contempt to the King Brigdman's Rep. 8. Moor and Sir George Reynell The Plaintiff in Debt on Escape declares of a Recovery of 13 Utlawed 15. and that he was taken by Cap. Utlegat 18 Car. 2. after the year and doth not Declare that he was in Custody nor that he was ever charged in Execution at the Suit of the party by Prayer on the first Judgment in which Case tho' an Action on the Case will lye yet not Action of Debt And after Verdict pro Quer ' Maynard moved in Arrest of Judgment That this taking after the Year after the Recovery and Judgment on the Outlawry does not make the Prisoner in Execution at the Suit of the party without Prayer because it may be Intended that the party intended to have other Execution than the Body And relied on Frost 's Case 5 Rep. 89. That until election made he is not in at the Suit of the party Siderfin 380. Buckland and Kelland 2 Keb. 408. mesme Case But upon Cro. El. 850. Shaw and Cutter's Case Tho' the Capias Utlegat ' be after the year yet Debt â—ies upon Escape without any Prayer of the party entred on Record Declaration on Escapes in Inferiour Courts and 706. Leighton and Garnon's Case The Court inclined that tho' the Capias be after the year yet Debt lies against the Sheriff for the escape without any Prayer of the party
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
Wetherlyes Case Where one sues a Replevin but hath not the delivery of the Goods and the other Avoweth and the Plaintiff sheweth the Defendant is yet possess'd of the Goods c. and prays that the Defendant may gage Deliverance then he shall Gage-deliverance put in Sureties and Pledges for the deliverance and a Writ shall go forth for the Sheriff to deliver them Where the Replevin is by Plaint there it may be removed out of the County into the Common-Pleas by Recordare and the Sheriff hereupon is Recordare to summons the other Party to be in the Common-Bench or B. R. at a day Certain and of all this he is to make Certificate under his own Seal and the Seals of four Suitors of the same Court In Replevin the Sheriff ought to take two Two sorts of Pledges in Replevin sorts of Pledges by the Common Law Pledges de Prosequendo and by the Statute Pledges de Retorn ' Habend ' Cok. Com' 145. b. And Note The Sheriff must take Sureties and not a Pawn Therefore where one brought Replevin and the value of the Goods taken was 20 s. and the Bayliff took 3 l. 10 s. for Pledges and not Sureties and the Party brought an Action on the Stat. W. 2. and resoved that the Action lies Jones p. 378. Cro. Car. 446. Moyser and Grey If Pledges de Prosequendo are not found and Judgment given the Process is erroneous 9 Rep. Husseys Case But these Pledges may be found to the Sheriff May be found at any time before Judgment Scire fac against the Sheriff upon retorn of nihil as to the Pledges or in Court at any time before Judgment but not after If upon the Writ to have retorn of the Beasts of the Pledges the Sheriff retorn nihil then may the Plaintiff have a Scire fac ' against the Sheriff qd ' reddat ei tot Averia or tot Catalla and so of a Bayliff of a Franchise Cok. Mag. Chart. 340. But as to the Pledges de Retorno Habendo they are given by the Statute of W. 2. c. 2. and an Action is given against the Sheriff if they are not found but this does not make the Proceedings erroneous Per totam Curiam Jones p. 439. Grosse and Boscawen So is Tregooose and Winnell's Case Pledges in Replevin on Retorno habendo were not taken by the Sheriff according to the Statute of W. 2. c. 2. after the Plaint was removed into the Common-Bench by Recordare yet Pledges may be found by the Court. For the Pledges given by the Statute of W. 2. are only to give Remedy against the sheriff for his neglect and the Pledges may be found at any time before Judgment Cro. Car. 594. Tregoose and Winnell If a Withernam be awarded for the Plaintiff Withernam Retron of the Beasts of the Desendant and the Sheriff Retorns he had taken the Beasts of the Defendant in Withernam but none comes from the Plaintiff to have them And now the Plaintiff prays a Writ to the Sheriff to deliver the Withernam to him and the Defendant prays that the Plaintiff gage Deliverance and saith that part of the Beasts which he took are dead by the default of the Plaintiff and the remnant he is ready to deliver In this Case the Plaintiff shall In what case the Plaintiff shall not have deliverance of the Withernam to him not have Deliverance of the Withernam to him but it shall remain in the custody of the Sheriff until a Writ issue to the Sheriff for the Plaintiff to have Deliverance of his Beasts and then shall come in debate in whose default the Beasts are dead 44. Ass 15. Note If J. S. be Sheriff and the Distress be taken by him there the Writ or Plaint shall be in Common Form naming the Sheriff by his Christian name and Sir-name quae J. S. cepit and not quae tu ipse cepists and the Sheriff in that case ought to make Deliverance C. Magna Charta 139. Reg. Orig. 81. b. A Declaration in Replevin was for 100 Ewes Delivery by the Sheriff must be according to the Writ and Weathers and it doth not appear how many there be of Ewes and how many there be of Weathers and the Sheriff is bound to make delivery of the one sort and of the other For the Delivery of the Sheriff must be according to the Writ c. and the Declaration was held ill But Ewes without addition had been good enough and the Sheriff must have delivered the one sort and the other if the Writ be for Oves matrices the Sheriff cannot deliver Weathers So if for black Horses the Sheriff cannot deliver white but is subject to Action on the Case Allen p. 33. Moor and Clypsam Of Retorns De Pone The Sheriff Retorns He had attached the Goods per plegios and the Form of such Retorn vide 2 Sanders 333. De Recordare fac ' Loquelam Dalt c. 72. Retorn ' sur Replevin de retorn ' habend ' Ibid. c. 73. Retorn ' averia clongata vid. le Form ibid. Retorn ' quod accessi ad locum visum habere non potui Ibid. Where the Plaint is in the County Court of the taking and withholding Cattle and Goods the Entry is thus JS queritur versus J. D. de pl ' ito Captionis injustae detentionis averiorum ipsius J. S. contra vad ' pleg ' Et invenit plegios tam de clamore suo prosequendo quam de averiis suis retornand ' si retorn ' inde adjudicetur viz. J. D. R. H. And the Precept of Replevin is thus War'ss A. B. Miles Vic' Comitat ' praedict ' Ballivo Handred ' de H. nec non J. S. Ballivo mec hac vice Et eorum ulterius conjunctim divisim salutem Quia W. P. invenit mihi sufficien ' securitatem tam de clamore suo prosequendo quam de averiis suis videlicet bove uno quem J. C. cepit injuste detinet ut dicitur retorn ' si retorn ' inde adjudicetur Ideo ex parte Dom ' Regis vobis utrique vestrum conjunctim divisim mando qd ' repleg ' delib ' fac ' praefat ' W. P. bovem suum praedict ' or averia sua praedict ' if several Et quod ponat ' seu c. per vad ' salvos plegios praefat ' J. C. ita qd ' sit ad prox ' Comitat ' meum apud c. tenend ' ad respondend ' praefat ' W. de pl'ito captionis injustae detentionis bovis sui praedict ' Et qualit ' c. mihi ad prox ' Comitat ' meum certificetur seu c. sub periculo incumbente Dat' sub sigillo Officii mei die c. Per me A. B. Mil ' Vicecom ' If this Replevin be granted by the Deputy then the must set his Name to the Replevin thus Per me J. A. unum Deput ' dict' Vicecom ' secundum
formam Statliti The Sheriff or his Deputy before this Precept made ought to take a Bond or Pledge sufficient Security De prosequen ' or Retorno habendo The Form of it is thus NOverint Universt per presentes me Wilt ' P. de C. c. teneri firmit ' obligari A. B. Mic Dic ' Com' pred' in decem libris bone c. solvend ' eidem Dicecomiti c. Ad quam quidem soluc̄onem c. THe Condition c. is such That if the above-bounden W. P. do appear at the next County Court to be holden at c. and then and there do prosecute his Action with effect against J. C. for wrongful taking and detaining of his Cattel viz. one Gelding c. as is alledged and do also made Retorn thereof if Retorn thereof shall be adjudged by Law and also do save and keep harmless and indemnified the above named sheriff Under-sheriff and Bayliffs for touching and concerning the delivery of the said Cattle That then c. If the Sheriff delivered Goods and the Plaintiff becomes Nonsuit if the Defendant be ready in Court to avow the Taking then there shall be awarded to the Defendants Retorn of the Beasts in this manner A. B. Mil ' Com' praedict ' Ballivo Hundred ' de H. c. Vide Dalt 523. Accedas ad Curiam Recordar ' fac ' Loquelam If False Judgment be given in any other Court Baron than in the Sheriffs County Court then the Writ of Faux Judgment is called Accedas ad Curiam By this Writ the Sheriff must make a Record of the Plea or Suit in the presence of the Suitors ' and annex the Record so made to the back of the Writ and Retorn and certifie the same under Seal and the Seals of the four Suitors Note Nothing but the Plaint shall be removed if they be at Issue The Form of the Retorn of the Accedas vid. Wilk and Dalton 200. Vide Greenwood of Courts and Dalt c. 60. And vid. Greenwood of Recordar ' fac ' Loquelam and Dalt 201 242. It 's a good Retorn that after the receipt of Retorn the Writ and before the retorn thereof no Court was holden or that the Lord would not hold the Court or that the Suitors would not deliver him the Record The Form of the Retorn of a Pone in Replevin vid. Dalt c. 70. The Form of a Recordar ' fac ' Lequelam Id. c. 72. The Sheriff must openly read this Writ in Court and retorn the same under his own Seal and the Seals of four Suitors and to summon the Defendant to appear at the Day of the Retorn Idem The Retorn must be Recordari feci Loquelam quae est in eodem Comitat ' coram Sectatoribus Curiae and not coram me Id. ibid. On this Writ he may retorn Tradè The Sheriff may send an Accedas ad Curiam by a Servant and need not deliver it in person as Co. Burwell's Case 3 Keb. 249. Reg. Orig. 96. Of the Writ of Justicies This Writ issues out of Chancery directed to the Sheriff giving him Power to hold Plea in this Court for Actions of 40 s. or above in Debt Detinue Case c. and other Actions personals It is so called because its a Commission and not an Original to the Sheriff to do a man Right aad Justice it is Vicountiel and not Retornable And tho' it be directed to the Sheriff yet the Suitors are Judges and the Writ of Faux Judgment Retorn lies on their Erroneous Judgment and it requires no Retorn unless the Action be removed by a Writ of Recordare and then the Writ must be Retorned together with the Record Fitzh N. B. The Form is thus in Debt REx Vic' Surr ' salutem Praecipimus tibi qd ' Justicies A. quod juste sine dilatione redd ' B. 40 s. quos ei debet ut dicitur sicut rationabiliter monstrare poterit qd ' ei redd ' debet ne amplius inde clamorem audiamus pro defectu justitiae c. And several other Forms Vid. Fitzh N. B. pertotum In a Justicies the Justicies may be holden of Accompt so of Admeasurement of Dower Admeasurement of Pasture when a Commoner puts in more Cattle than he ought so of a Writ of Covenant Dalt 504. So Justicies de Curia claudenda that is where a man ought to Inclose his Ground against his Neighbour's Ground so of Debt for Money or other Goods and Detinue So a Justicies of Nusance of Trespass by Justicies of Trespass the Sheriff may hear and determine of the Trespass by an Enquest of Twelve Men according to the Order of Common Law And the Plaintiff may Count to his Damage of 20 l. or more But if it be vi armis or contra pacem the Sheriff cannot determe it therefore that is usually omitted The Sheriff may hold Plea of a Bond of 1000 Marks c. Justicies for 40 l. was held and determined before the Undersheriff in the absence of the Sheriff and a Writ of Faux Judgment lies and not a Writ of Error 2 Leon. p. 34. Sheriffs Tourn The Torun is a Court of Record holden before the Sheriff Magn. Chart. c. 17. Leet is derived out of the Sheriffs Tourn and The Nature of it after the grant of this derivative Leet the Sheriff in his Tourn is not to meddle in the reach of this Leet except in case of Negligence of the Leet and unless it be where the Leet is forfeited into the King's hands If one be under no particular Leet he is within the Sheriffs Tourn And 2 Roll. Rep. 74. the Sheriffs Tourn is the supream Leet of the County The Style is Vic' France-pleg ' Dom ' Regis tent ' apud L. coram Style Vicecom ' in Torno suo c. and not Torn ' Vic' tent ' die apud L. Or Cur ' visus Franc ' Dom ' Regis apud B. coram Vicecom ' in Torno suo and not Tornum Vicecomitis Tent ' c. for Tornum est nisi perambulatio The Tourn is inciden tot the Office of Sheriff 4 Rep. 33. Mitton's Case The Jurisdiction in respect of the things Presentable place where What things are Inquirable in the Sheriffs Tourn and what not Nothing shall be Inquired before the Sheriff in the Tourn but Actions Popular Common Nusances Affrays and Blood-shed 4 H. 6. 10. Assault made on a man is not Inquirable there it being but a Tort to a particular person for which Trespass lies 4 H. 6. 10. The stopping of Water which is a Nusance to the Country People may be Inquired there for it is popular So of a Bridge 4 H. 6. 10. They may amerce for Common Nusances and so may Stewards of Leets notwithstanding the Stat. of Marlbr c. 18. He may Inquire de Assisa panis and Cervitia non observata by Stat. Walliae in Magn. Charta 46. Coke If he find in his Tourn that a person hath erected a Purpresture in the King's HIgh-way
If three Writs of Capias in Process at the suit A General Arrest upon three Special Warrants of J. S. against J. D. are directed to the Sheriff and the Sheriff makes three Special Warrants to one Special Bayliff and he comes to J. D. and arrests him generally without shewing him in what Action neither is it demanded of him but presently upon the Arrest a Stranger Rescues him Action on the Case lies against the Stranger for all the three for this was an Arrest in Law upon all Tr. 16. Jac. Hodges and Marks So if the Writs and Warrants were at the Rescue suit of three several persons and the Bayliff arrests him generally as before for this is a good Arrest for all and all shall have Actions for the Rescue Id. ibid. He is not bound to shew his Warrant at first or to shew at whose Suit it is before he had peaceably submitted to the Arrest Cro. Jac. 15. Hodges's Case But in the Countess of Rutlands Case it is holden when the Sheriff or other person by his Authority arrests another he ought upon the Arrest to shew at whose Suit out of what Court for what Cause and when the Process is retornable to the intent that if it be upon Execution he may pay it and free his Body or agree with the Party or put in Bayl according to the Law and to know when he should appear This is meant after a peaceable submission Cro. Reports the Case of Hodges and Markes thus which is a Leading Case in the Point But when the Party makes resistance or flyeth be need not make such Declaration The Bayliff who had two Warrants against one at the Suit of J. S. laid his hands on him and having both the Warrants in his Pocket he said I arrest you by force of a Warrant I have but did not shew it him nor had it in his hands nor told him at whose Suit This was not a Bayliff conus The Court resolved 1. This Arrest without shewing the Warrant and telling at whose Suit till the other demanded is legal 2. This Arrest without having the Warrant in his hand and having both Warrants about him is well enough tho' he did not shew by which of the Warrants he arrested him For he being under the Bayliffs Arrest is in custody there for all Causes for which the Sheriff had made his Warrant against him tho' the Sheriff or Bayliff do not mention any specially And Rolls C. J. in another Case took this Special Bayliff difference a Special Bayliff is bound to shew his Warrant to the Party whom he is to arrest otherwise the Party arrested is not tyed to obey him but he is not bound to shew his Warrant to a Stranger But a known Bayliff i. e. one that is commonly A known Bayliff known is not bound to shew his Warrant to any A sworn and known Officer be he Sheriff Undersheriff Bayliff or Serjeant need not shew his Warrant yet upon the Arrest the Officer ought to declare the Contents of the Warrant ut supra If Officer arrest a man before he has a Warrant and afterwards procures a Warrant yet the first Arrest was unlawful So if the Officer do make a Warrant for Summons or Arrest not having the Original Writ or Process warranting the same if it appear to the Judges they shall commit the Offender to the Gaol till he has paid 10 l. to the Party grieved and 20 l. to the King But a Capias without Original is sufficient Warrant to the Sheriff 43 Eliz. c. 6. 1 Jac. c. 25. Of Pledges de Prosequendo The reason of Pledges in Actions is 1. Security The reason of Pledges for the Kings Fine 2. For the benefit of the Defendant if Judgment be given against he Plaintiff Taking of Pledges is to the intent that the Party Plaintiff shall prosecute his Suit The Sheriff was at election formerly whether he would serve the Writ or not if Pledges were not found but now it s held they may be found hanging the Writ Formerly if the Plaintiff sued one unjustly the Judges would amerce the Plaintiff grievously till the Statute of Moderata Misericordia was made 3 Bulst 277. Dr. Hussy and More Now if no Pledges be retorned it 's not aided by Jeofayle Stat. 18 Eliz. which aids insufficient Retorns but not no Retorns and therefore the Person against whom to have Judgment is not retorned for the Judgment ought to be against the Plaintiff and his Pledges and so this is no Retorn 1 Rol. Rep. 447. If upon the Original Writ Pledges be not retorned because the Writ commands that if Pledges be found that then c. and it is to the Kings disadvantage if Pledges be not found at the loss of his Fine it's error But the Sheriff may make Replevin without Pledges finding and it is at the Sheriffs peril if he doth not take Pledges Vid supra tit Replevin Cro. Car. 594. Tregoose and Winnele In B. C. Pledges must be endorsed on the Original tho' they may be filed at any time after the Retorn thereof 2 Keb. 299. Hedges Case Vide pluris sub titulo Replevin Vide supra sub titulo sur Summons and Attachment Neither the King nor Infant shall find Pledges King or Infant not to find Pledges for no Americament shall be upon their default therefore it were in vain for them to find Pledges 2 Leon. p. 4. Scire fac ' against the Sheriff for taking insufficient President Pledges The Form of the Sheriffs retorning that he had attached the Defendant by Pledges Hutt p. 77. Trevor and Michelborn 2 Sand. 333. CHAP. VII Of Bail of Special Bail VVho shall take Bail or not Of Bail Bonds Explication of 23 H. 6. c. 10. The design of the Statute The Form to be observed according to the Statute VVhat Obligations and Conditions are within the Statute or not In respect of the Persons and Officers to whom they are made In respect of the Form Of the Courts and of the Sureties The meaning of the words colore Officii Of the pleading the Statute of 23 H. 6. And when and how to be pleaded What Appearance to a Sheriffs Bond is good or not Of the Sheriffs Retorn on taking Bail Of Insufficient Bail Of refusing Sufficient Bail and the Remedy against the Sheriff for so doing The Sheriffs pleading this Statute in Actions brought against him Of Bail Bonds being discharged or assigned Of other Bonds besides Bail Bonds entred into to the Sheriff As for being a true Prisoner Saving harmless from Escapes For Fees c. And the Pleadings thereunto with all the late Cases and Resolutions relating thereunto Of Bail BAil is so called because the Party bailed is delivered by Law into the Custody of those that are his Bail and who are to answer the party if they do not produce the Principal to do it The cause of Marking the Roll for special Special Bail in B. R.
their Ward by the Course of the Law but by the Name of their Office and upon Condition written That the said Prisoners shall appear at the Day contained in the said Writ Bill or Warrant and in such places as the said Bill c. shall require And any other Obligation taken by them in any other form shall be void Now there are Three Forms to be observed 1. That is shall be made to the Sheriff himself 2. Note these words For any other Cause refer to all that went before as well those contained in the Exception as in the First branch Therefore a Bond taken of a man in Execution is void by this Statute and the Surety may plead this was taken by him in Execution as Sheriff and and the words colore Officii make it void for he he lets him to Bail who is not Mainpernable Plowd 69 80. Dive and Manningham 3. Note also Nor any of his Officers it is not The Stat ' mistaken in print so and the printed Statute is mistaken It is not the Sheriff nor any de ses Officers or any of his Officers but not any des Officers not ejus Officiarii but alii Officiarii And so is Old Rastal which is in French and so Adjudged in Langham's Case In Debt on Bond to Lenthal the Defendant pleaded it was for Ease it was held to extend to the Marshal tho' he is not one de ses Officers but one des Officers and Ministers of Justice 3 Keb. 71. Monday and Frogate And if the Statute be mis-recited it may be demurred to as it was in this very Case Cro. El. 108. Teussell and Acton In this Statute are Three Forms to be observed 1. That it shall be made to the Sheriff himself Vide infra 2. That it shall be made to him by the Name of his Officer 3. That it shall be only for Appearance at the day and place Cro. El. 862. Cotton and Vale 2 And. 173. mesme Case But as to the Insufficiency of the Sureties that is Matter and not Form and the Obligation is not void Vide infra The Statute prescribes the Form and that the Sheriff under Colour of his Office should not He must pursue the Form not the Matter oppress the party to make him any other manner of Obligation for the Statute makes the Obligation void for not pursuing the Form but not in the Matter thereof Therefore the sheriff may take one Surety or one that has no Land in the County Cro. El. 808. Sir Geo. Clifton's Case Mod. Rep. 32. Franklyn's Case Per Hobart ex Relatione Twisden Because the Statute would make sure work and not leave it to Expositions what Bond should be taken Therefore it was added That Bonds taken in any other form should be void What Obligations and Conditions are good or not 1. In respect of the Persons and Officers to whom they are made 2. In respect of the Form 1. In respect of the Officers or Persons to whom made Such Bond given to a Deputy of a Bayliff of To a Deputy of a Bayliff of a Franchise Serjeant at Arms. a Franchise is void or to an Under-sheriffs Deputy it must be to the Bayliff or Sheriff himself Noy p. 69. Tavernor's Case A Serjeant at Arms attending on the President and Council of the Marches of Wales is not an Officer within this Stat. Cro. Car. 9. Johns and Stratford If the Bayliff of an Hundred which is a Bayliff of an Hnudred Franchise take Bond he must do it in the Sheriffs Name 3 Keb. 21 117 127. Monday and Frogate This Bond must be taken to the Sheriff himself and not to another Dyer 119. 10 Rep. 100. 7 Ed. 4. 5. Plowd Com. 68. a. b. A Serjeant at Arms in VVales is not within Serjeant at Arms in Wales the Stat. Stiles 234. Barton's Case The House of Commons had Voted one VV. guilty of High Treason and the Plaintiff being a Serjeant at Arms took the said VV. into Custody and the Defendant entred into Bond to the Plaintiff Conditioned for the said VV's Appearance who did not appear Debt was brought and on demurrer Per Cur ' It 's a void Bond by the Common Law being entred into for ease and favour of the Prisoner and he was not bailable But the Court agreed the Plaintiff was not an Officer within 23 H. 6. c. 10. Obj. The Condition recites the Bond was entred into for Appearance only is an Estoppel to say it was for other Cause Per Cur ' Here is no Estoppel for Estoppel is when the Bond is a good Bond then the Recital is an Estoppel but when the Bond is void the Estoppel is void too Hardress p. 464. Norfolk's Case A Serjeant to the House of Commons is not Serjeant to the House of Commons within this Statute 1 Keb. 391. Norfolk and Aylmer This Statute doth not extend to Bond made to the Plaintiff himself Allen p. 58. Leech and Davis The Bond not being taken by the Sheriff in Not taken by the Sheriff in the name of his Office the Name of his Office in Debt upon the Bond the Defendant demurrs upon Oyer Sed non allocatur for the Statute is not pleaded Pleading the Stat ' and it may be for a just Debt 2 Keb. 620. Jacques's Case Marshal of the Kings-Bench is within this Marshal of the Kings-Bench Statute and if he takes Bond against this Statute 't is void Cro. El. 66. Bracebridge and Vaughan 9 Co. 98. A Bond to Neele Sheriff of Warwick and the Bond was to Neele Vic' Com' praed ' and Warwick put in the Margent Per Dodderidge This is not a good Bond he ought to be named Sheriff and of what County 2 Rolls Rep. 360. Neele and Cooper As to Appearance where the Condition is good or not An Obligation to the Sheriff to Appear and Answer c. is void by the Statute of 23 H. 6. Aliter to Appear to Answer for the party by the Law may Appear yet Judgment may be given by default Noy 53 54. Lord Ever 's Case Dyer 274. contra 172. Rowles and How Condition to make an Appearance quaere if good Obligation was taken by the Sheriff for an Appearance where the Term is adjourned Appearance at Westminster and the Term ws Adjourned to St. Albans and the party appeared there he had not forfeited the Obligation quaere Mo. n. 578. Corbet and Downing That Obligation shall alway relate to the day and place comprized and he ought to appear at the Kings-Bench or else he forfeits his Bond Mo. 466. The Condition was If the said J. D. personally appeared c. â die Paschae in 15 dies to Answer to J. H. as shall appertain and farther to do and receive as the Court therein shall consider in that behalf that then c. it 's a void Bond Cro. El. 672. Scriven and Dyther If the Sheriff take an Obligation for the Appearance Bond for
Bond. the Money being paid before the Retorn of the Writ and Common Appearance ordered 3 Keb. 356. Randall's Case If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to sue the Sheriff And the Sheriff shall be amerced till he assign the Obligation to the Plaintiff Pract. Reg. 24. Siderfin p. 24. When Bail is put in de bene esse as Bail taken Bail de bene esse in a Chamber the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keb. 478. The Court cannot compel a Sheriff to assign Where the Sheriff shall be compelled to assign his Bail Bond. his Bond regularly But in some Cases they will as the party was arrested by the Sheriff and through his default in not Retorning the Writ The Defendant died Now in this case he shall not take advantage ofhis own wrong but shall assign the bail Bond or pay the utmost Amerciaments 2 Keb. 388. Hill and Browning It was moved in B. R. to stay Proceedings Proceedings upon Bail Bond shall not be stayed until Special Bail given where the Plaintiff had been prejudiced by delaying of Appearance upon bail Bond upon discharging the Amerciaments and Costs as is usual And it was alledged on the other side That after the same Bail given the Principal had sold his Land and became irresponsible and rendred himself to the Marshalsea And for this cause the Court refused to stay Proceedings and said it would not be done until he had given Special bail because they did not cause him to appear at first according to their Obligation And so it is when the Principal on such default of Appearance becomes a Bankrupt Siderfin pag. 386. Of other Bonds beside Bail Bonds Entred in to the Sheriff what are good and what not And Pleading Vide infra tit Bonds between the High-sheriff and Under-sheriff and others Bond to be a True Prisoner A Bond given to be a True Prisoner as by Law he ought is good and not within the Statute of 23 H. 6. As to this There is a Notable Case of Lenthall and Cooke The Case is Lenthall the Marshal brings Debt on Bond against Cooke The Condition was If the above-bounden A. P. now Prisoner in The Condition the Kings-Bench in Southwark do and shall from henceforth be and continue a true Prisoner in the Custody guard and safe-keeping of the above-named John Lenthall Marshal of the same Prison and in the Custody guard and safe-keeping of his Deputy Officers and Servants or some or one of them until he shall be lawfully discharged without committing any manner of Escape or Escapes during the time of his Restraint Then this present Obligation to be void The Defendant Pleads the Statute of 23 H. 6. Pleadings of Obligations made to the Sheriff colore Officii And further pleads That at the time and long before the Plaintiff was Marshal that P. at the same time was a Prisoner at the Suit of c. And that the Defendant together with the said P. pro easiamento favore to be shewed by the Plaintiff to the said P. made the said Bond c. The Plaintiff Replies and Bond was pro meliori securitate of the said Plaintiff that the said P. should not Escape and traverseth the Ease and Favour The Defendant demurrs And these things were Resolved by the Court. 1. That the Marshal of the Kings-Bench is within the words Gaoler and Keeper of Prisons 2. Bonds made to Gaolers for Ease and Favour of Prisoners are void 3. A Bond given to save harmless from Escapes Bond to save harmless from Escapes is void is within this Statute and void but a Bond to continue a True Prisoner is good And there is no agreement that it is for Ease and Favour appears but the contrary rather for the Plaintiff in his Replication hath Traversed it and the Defendant hath confessed the Replication to be true by his Demurrer 1 Sand. 162. Lenthall and Cooke Latch 23 143. Elworthy and Perryer and Hill there cited This Case of Lenthall and Cooke is Reported by Siderfin and the Case there truly put as here The Intention of the Obligation was for Ease Plea and Favour and Traversing it hath taken it away Now when the Defendant had such Issue Demurrer offered and refused to joyn but demurrs the Defendant agreed it was for Ease and Favour Siderfin 283. Note A little Evidence in such case would serve to prove Ease and Favour A Bond to the Warden of the Fleet to be a True Prisoner The Defendant without pleading the Statute saith it was for Ease and Favour The Plaintiff demurrs The Plaintiff should have Traversed the Ease And Judgment for the Defendant 3 Keb. 320 361. Oakes and Cell Condition is Where D. F. is under his Custody i. e. of the Obligee upon Arrest at the Suit of the Plaintiff in Action of Debt of 1400 l. upon Bond by him to the Plaintiff and at the Request of the Defendant he is permitted to go at Large for six days If therefore the said D. before the 12th of February renders himself a Prisoner to the Sheriff of Middlesex at the Plaintiffs Suit on Action of 1400 l. and remain a True Prisoner till he shall be discharged by Consent of the Plaintiff See the Pleading Quaere de Judgment Sir Tho. Jones Rep. 139. Rushant and Waite Siderfin 132. But a Bond of one in Execution to be a true A Bond of one in Execution to be a True Prisoner is void Prisoner is within this Statute and void And as to this the Case was The Condition of the Bond was If Thomas Manningham keep the Sheriff without damage against our Lord the King and one T. P. and at all times be at the Commandment of the said Sheriff as a True Prisoner and appear before the Justices c. Then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Thomas Manningham was in Execution upon a Recognizance and that the Sheriff made the Obligation for the delivery of the said Thomas Manningham and demanded Conclusion of the Plea Judgment si Actio i. e. If the Plaintiff ought to maintain his Action This is no good Conclusion of the Plea he ought to have Concluded Issint nient son fait For the Statute saith it shall be void and if it shall be void then it shall be void from the beginning and then it is not his Deed. And further That he had not wisely Concluded his Plea for this Special Conclusion had straitned the Defendant so that if the Obligation be void for any other Cause the Defendant shall not have benefit of it And yet because it appear'd to the Judges on the Matter in
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
vivariis or which shall be found in Arrears in Account before they be attainted Vide 1 Ed. 3. c. 7. My Lord Coke in his 3 Inst 35. extreamly inveighs against Racks It is true the punishment is amazing but as the sins of every Age grow more impudent so their penalties ought to be more severe And if we will translate our Neighbouring Nations Villanies we ought to imitate their punishments especially for Offences publick and which go to the ruin of a Nation I will put a common Instance At this present our current Trade is almost spoiled by our Noncurrent Money and he that shall break open a Bakers Window to take a Sixpeny Loaf to supply meer Nature shall be as severely treated as ' he that Clips and Counterfeits the Coyn I mean a little dry Hanging serves for both for as to the Sledge its insignificant And we shall conclude It will never be otherwise unless the Breaking on the Wheel and dying by piece-meal sometimes used in other Countries may terrifie Spectators and those to whom it is Reported ut poena ad paucos c. Tho' there is no person that has a greater Veneration for our Common Law than my self yet I conceive I may say the spreading and new Villanies of our Nation are chiefly owing to our undistinguishing punishments He that takes but Half a Crown on the Pad shall be hanged and deservedly and he that Blasphemes his God Murders his Father and commits a Rape upon his Mother shall e'en make his Exit with a few wry wet Looks and a little Swing or two Which punishment I must needs observe is almost grown into Contempt by the major part of Criminals I need but mention the notorious Case of Felton and the late Story of the barbarous Midwife By our Law it is plain A Prisoner in Execution shall not be in Fetters but for Criminal Causes But to return to my purpose A Prisoner while he is such is under protection of the Law and accordingly is to be used And therefore where a Prisoner by duress of the Gaoler comes to an Untimely End it is Murder in the Gaoler 3 Inst 52 91. And the Law implies Malice in him in respect of the Cruelty And therefore if a man dye in Prison the Coroner ought to sit upon him to the end it may be enquired if he came to his death by the duress of the Gaoler or otherwise 3 Inst 91. 52. If the Sheriff or other Officer where he ought to Hang the party attainted according to his Judgment and his Charge will against the Law of his own wrong Burn or Behead him c. the Law in this case implies Malice in him By the Statute of 14 Ed. 3. c. 10. If a Keeper or Under-Keeper of Prisons by too great duress of Imprisonment or by Pain make a Prisoner become an Appellor viz. an Approver against his Will its Felony Every Imprisonment is in Law duritia duress a little addition to it by the Gaoler is too great duress in this case There is a remarkable Case in 3 Bulstrode The Court was moved by Sir G. Reynell against one of his Prisoners who had much misbehaved himself offered to Escape and had endangered the killing of one of his Servants and that he had spent Ten pounds after him and he would have had the Court to have fined him But per Cur ' We will not do it you must keep him in arcta custodia in Irons and you may Indict him for these Misdemeanors and by that way you may have him Fined 3 Bulstr 245. Sir G. Reynell's Case The payment of a Debt by a Prisoner to a Payment of the Debt to â— Gaoler Gaoler is not good and therefore in Debt the Defendant pleads That he was a year in Execution and the Plaintiff could not be found whereupon he paid the Money to the Gaoler The Plaintiff replies That he was to be found at D. absque hoc that he absented eo animo to keep the Defendant in Prison And the Defendant to this Demurs because the Marshal may dye and no Recovery can be by the Defendant against the Marshal if he do not pay it over But the Court gave Judgment for the Plaintiff it being not reasonable to pay Money to the Gaoler for the Plaintiff whether he will or not And also they thought it too hard for the Plaintiff to prove payment or to prove Assets in the hands of the Marshall's Executors 3 Keb. 748. Taylor and Baker Sir Tho. Jones's Rep. mesme Case Where the Imprisonment is unlawful the Prisoner is not to pay for his Diet 1 Roll. Rep. 329. Oliver's Case Note If a Prisoner is in Execution and the Gaoler or Sheriff dye he is in abeyance and custody of the Law 3 Rep. Westby's Case A Gaoler is not bound to deliver his Prisoner who is Discharged by the Court until he pays his due Fees A Prisoner acquitted of Felony the Gaoler may take Twenty pence which is called a Bar Fee Every Sheriff Bayliff of Franchise and every other person having Authority of keeping Gaols or of Prisoners for Felony shall certifie the Names of every such Prisoner in their keeping at the next General Gaol-delivery in every County or Franchise where such Gaol is there to be Kalendred before the Justices of the Delivery of the same Gaol whereby they may as well for the King as the party proceed to make delivery of such Prisoners according to the Law on pain of Five pounds 3 H. 7. 3. If the Gaoler shall suffer an Escape the High Sheriff or Gaoler are chargeable therefore CHAP. XVI When one may be said to be in Execution or not And when without Prayer or not In what Cases the Sheriff may break open an House to do Execution or not To what Sheriff and of what place and County shall Execution be Awarded Of a Cap. ad satisfaciend ' for what and against whom it lies and the Sheriffs Demeanor therein and Retorns thereupon Of Execution When one may be said to be in Execution or not When one shall be in Execution without Prayer of the Plaintiff or not IF a Man recover Damages in Action on the Case against J. S. in the Kings Bench the said J. S. being in Custod ' Mareschal ' yet he shall not be in Execution on this Judgment altho' it be within the year before Prayer of the Plaintiff for the Marshal may not take notice of every Where a Man Comittitur Judgment against every Prisoner but upon Prayer of the Plaintiff a Comittitur shall be entered upon the Roll and then he is in Execucution but if the Defendant being taken in Execution be brought on by Habeas Corpus and then an Entry of the Comâ—â—â—tur is made in the Book of the Office its Goâ—â— Hill 12 Jac. B. R. Sir Henry Bellows and Hanford 2 Rolls Rep. 112. If a Man recover in B. C. Debt and Damages against J. S. and had Judgment altho' that J. S. be
this Execution vid. supra The Sheriff upon a Scire fac ' cannot deliver Cannot deliver Goods in satisfaction of the Debt the Defendants Goods to the Plaintiff in satisfaction of his Debt but must retorn the Execution in Court Cro. El. 504. Tompson and Clark Noy 56. Mesme Case Action on the Case was brought against the Sheriff for fraudulent omission of Execution of Goods that were in Conspectu suo but he saith not in his Declaration that he knew them to be the Goods of the Defendant in that Action And for this omission after Verdict Judgment was Arrested by Twisden and Windham 1 Keb. 946. The gift of the Action is the fraud which cannot be without notice which is now wrapt in the Verdict tho' it could not be pleaded the Sheriff being bound to take notice whose Goods they are Russel and Comber On Fieri fac ' against J. S. who has the Goods of Sheriff sells the Goods of J. S. a strange Security A. in his possession if the Sheriff sell these Goods Trover or Trespass will lye against him and to prevent this all the Sheriffs of England take Security Keb. 693. Sander's Case Quaere if the Seriff may take Bond for his Security But the safest course is for the Sheriff to enquire by a Jury in whom the property of the Goods is or else not to meddle with any such Goods which do not plainly appear to him to be the Defendants and it being found by the Jury that excuseth the Sheriff Pleading by the Party who has paid the Money to the Sheriff In Detinue the Plaintiff had Judgment and brought Scire fac ' to have Execution Defendant pleads that upon a Distringas to the Sheriff on that Judgment he delivered such Goods to the Sheriff and for the residue that they were appraised at so much by Inquisition taken by the Sheriff and that he delivered the Money to the Sheriff but he doth not aver this matter to be Retorned by the Sheriff it s a good Plea for otherwise the Defendant should be prejudiced for he might have twenty several Executions served against him upon one Judgment and he should be put to his remedy against the Sheriff only who may be insolvent And it is a less mischief to inforce the Plaintiff if his Plea be true to take his Action for it against the Sheriff and if it be not true to take Issue thereupon Crok El. 390. Atkinsons Case Now if the Sheriff levy Goods by force of a Where the Plaintiff shall have a new Fieri fac ' or not Defendant discharged upon seising the Goods by the Sheriff Fieri fac ' and delivers them not to the party nor retorns the overplus the Plaintiff may have a new Fieri fac ' because a Record shall not be avoided by a matter in Fact But by the taking the Goods of the Defendant to the value of the Debt by the Sheriff the Defendant is discharged altho' the Sheriff do not satisfie the Plaintiff therefore he shall not have a new Execution 2 Rolls Rep. 57. p. Jac. 1 Rolls Ab. 902. Where a Sheriff on a Fieri fac ' Retorns that New Execution he had seised Goods of lesser value which were rescued and that nulla alia bona c. the Plaintiff may not Sue a new Execution but only for the surplus beyond the value of the Goods rescued 2 Sanders 344. Mildmay and Smith If the Sheriff levy Money in Execution the Lord Keeper cannot order the Money shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it Marsh Rep. 54. If the Sheriff shall Retorn Fieri feci sed non inveni emptores then a Venditioni exponas shall go out Of the Sheriffs Selling Goods on Fieri fac ' and of the Venditioni exponas As to what Sale is good or not If the Plaintiff tenders the Debt it s a wrong for the Sheriff to sell the Goods 1 Keb. 655. Lefans Case If Goods remain in the Sheriff hands for default of buyers and there perish the Sheriff shall not be chargable But if the Sheriff refuse a buyer Action on the Case lies 2 Keb. 464. Needham's Case The Sheriff took the Defendants Goods in After seising the Goods and before sale a Supersedeas Execution by Fieri fac ' and before Sale the Record was removed by a Writ of Error into the Exchequer Chamber and a Supersedeas awarded and the Sheriff retorned upon the Fieri fac ' seisure of the Goods and that they remained in his hands pro defectu emptorum and he also retorned that a Supersedas was awarded c. and hereupon it was prayed for the Defendant that he might have restitution of his Goods Crok Eliz. 597. But per Curiam Altho this Record be removed and notwithstanding the Supersedeas awarded in regard it came not to the Sheriff till he had begun to make Execution as appears by his Retorn that a Venditioni exponas shall be awarded Venditioni exponas to perfect it And altho' the Plea Roll be removed yet it shall be awarded on the Retorn of the Fieri fac ' which remains still in the Office But as it is in 1 Keb. 324. Brownwood and Estwel if the Error were allowed before seisure then tho' the Sheriff be unpunishable in that Case yet Supersedeas notwithstanding Execution done shall go quia improvide c. And per Câ—riam if the Goods be sold the Money may be brought into Court to be restored to the Party but if not the Goods may in Goods restored in specie specie be restored But if before Sale a Supersedeas comes to him Under sale if the Sheriff after Sells the Goods without a Writ of Venditioni exponas this is void p. 8. Car. 1. Scarling and King The Sheriff sells Bricks for 7 s. per thousand on the place for which he might have 16 s. per thousand The question was Who should pay the overplus the Buyer or the Sheriffs Executors And per Curiam The Sheiffs Executors shall pay the overplus the Sale being absolute and not an Argeement to Sell 3 Keb. 285. Cutten and Hunt The Sheriff perswaded the Jury to prize the Goods at undervalue and so sold them This is an Oppression enquirable at the Assizes by Indictment Crok Jac. 426. Cayers's Case If the Sheriff upon a Fieri fac ' against J. S. Where the old Sheriff after a Writ of discharge may sell seise certain Wood whereof J. S. was possessed and the Sheriff pay parcel of the Money received and does not Retorn his Writ and after the Sheriff is removed and another Sheriff chosen and after the Writ of Discharge delivered to him he sells the Wood this is a lawful sale because by the seisure altho' the Writ is not retorned he is chargeable to the Party Tr. 3. Jac. B. R. Cro. Jac. 73. Ayer and Aderly And there a Distringas issued to the new Sheriff to distrain the
Rescous but he shall retorn the Rescous but upon Execution he shall not retorn the Rescous but have an Action and the party is not prejudiced for he shall have an Action against the Sheriff tho in Judgment of Law the party is liable Remedy against the Rescouser by Action and Indictment The Rescouser shall be doubly punished by the King and by the party upon the Retorn of the Sheriff he shall be fined to the King and Attachment shall issue out against him and the party shall have a Writ of Rescous against him and so shall the Sheriff too Action on the Case lies against the party that rescoused by the party who had the Loss and he shall not be forced to Sue the Sheriff for perhaps the Sheriff is dead and then no Action lies against his Executors actio personalis moritur c. and if the Plaintff recover the parties may plead it if they be sued by the Sheriff so as there is not any danger of being doubly charged so is Hoppings Case 2 Keb. 340. Action on the Case lies against the Rescuer as well as the Sheriff But as to the Case of Myn and Caughton it is well reported and agreed by the Judges in Hetly p. 94. by the name of Lyn and Cunningham which was full to the Point and the Reasons in respect to this and other cases of like nature are weighty I have set down as it is in the Book with the Reasons of the Judges that differed in Opinion Cro. Car. 109. Mynn and Coughton 2 Keb. 340. Hoppings Case What Damages the Rescouser shall answer The Defendant rescued B. S. out of the Baylisff hands when the said B. S. was arrested by Alias capias out of the Kings-Bench which Writ is only in nature of a Plea of Trespass the party who rescued him shall answer in this Action Damages for the Debt which was 300l because by this means the Defendant lost his Debt but if the Sheriff or Bayliff in this case had only suffered a negligent escape they should be charged only with the Damages in the same Plea as the Writ supposeth and nothing for the Debt Lanes Rep. p. 70. Kent and Kelloway Remedy against the Rescouser by Indictment and for what reason quasht or reversed Error was brought to reverse an Indictment of Rescous and Ryot and the Errors Assigned were 1. There was a Warrant to three conjunctim divisim to arrest H. and two of them arrest him it ought to have been by one or all three because it is a Ministerial Act 14. H. 4. 34. 2. Juratores pro domino Rege praesentant and do not say 12 Jurors present and peradventure but eleven did present Tr. 2 Car. 1. Harrison and Erington The Names of the Jurors ought to have been certified for peradventure they were not probi legales homines but Villains and Outlaws 15 H. 4. 41. Note an Indictment before Coroners which found B. felo de se was quashed because it did not appear it was per sacramentum proborum legalium hominum 4. It is found that the Sheriff by vertue of a Writ directed to him came c. and upon this Rescous was made by H. c. and it appears not what manner of Writ it was viz. Eleg. Capias c. and if there were no Writ there can be no Rescous and albeit he had no Writ yet if Execution were done by vertue of another Writ the Sheriff mistakes the Warrant party may disobey it if he be not a Bayliff known as if on Hab. fac seisinam the Sheriff makes a Warrant as on a Capias Tr. 2. Car. 1. Harison and Exington An Indictment for a Rescous retorned against one in B. R. ought not to be quashed altho it be erronious except the person Indicted for it do personally appear in Court Pract. Reg Tit. Rescous Indictment of rescous ought to express the Indictment not to be uncertain place where and the time when the Rescous or else it is ill for the uncertainty Pract. Reg. Tit. Rescous Retorn of Rescous By Stat. W. 2. c. 39. a Retorn of Rescous is forbidden for redundat in dedecus domini Regis The Sheriff may take the posse comitatus post vel ante Queremoniam as well before as after complaint made and the Delinquents must be Upon a voluntary return if iâ—â— the Sheriff is not siâ—eaable but Action lies against him punished coram Rege in the Kings-Bench Co. 2 Inst 45. Note the Court never sines a Sheriff for the ill retorn of a Rescous because it is voluntary but they allow exceptions to quash it because the party cannot Traverse it But where he is compellable to make a Retorn he is finable but the party shall have his Action on the Case Yet in Chamber 's Case 2 Keb. 358. the Sheriff is Finable for retorning a Rescous on Fi. fac ' but the Retorn is well enough as to the party 1 Keb. 878. Burrough's Case 1 Roll. Rep. 389. Proby and Lumley Now as to the Ill Retorns of Rescous and the Exception to quash it I shall briefly cite the Cases Adjudged in our Books for the more perfect Direction of such Retorns hereafter to be made The Retorn of a Rescous without mentioning The Retorn must mention the place where it was made the place where it was made is void The Sheriff retorns Rescous upon him at Dale in the County of Bucks which was the County into which the Process was awarded Exception was taken because he saith not infra ballivam meam But non allocatur for if it be within the County it cannot otherwise be taken but to be within his Bailywick Mo. 422. Upon a Latitat awarded the Sheriff retorns a Rescous tali die but there is not any place mentioned where the Arrest was made It s a void Retorn For non constat whether the Arrest and Rescous were within the County and Jurisdiction of the Sheriff Yelv. p. 51. Woolfrost's Case The Sheriff retorned a Rescous against the Father and Son against the Father for rescuing his Son and against the Son for rescuing himself As to the Father the Retorn was sufficient as to time and place But that against the Son wanted such Certainty By Dodderidge The Retorn is good It shall be intended at the same time that the Father rescued the Son that the Son rescued himself and the word Et is a Conjunction Copulative and compleats both together Haughton contra A Prisoner may be rescued by others and he not know of it and the Rescous may be at several times 2 Bulstrode 137. The Sheriff in his retorn of Rescous said That he was in Custodia ballivi Itinerantis and that a Rescous was made to his Bayliff Itinerant It s not good Aliter if it had been Bayliff of a Liberty March Rep. p. 92. Rescous quasht because it is quod arrestavit without saying in custodia sua habuit 1 Siderfin 332. The Sheriff ought not to say
a Rescous to be out of the hands of the Deputy Bayliff notwithstanding Dyer 7. El. 241. And the Declaration was held good that he sued an Alias Capias without mentioning a Latitat before this Arrest was made by the Deputy Bayliff of Newark But the main Question was Because it doth not appear that the Bayliff had a Power in his Patent to make a Deputy Bayliff No Escape upon a Tortious Arrest The Action is brought in Suffolk against the Sheriff of Suffolk for Arresting the Defendant in the first Action upon a Capias Utlegat ' and suffering him to Escape and the Defendant in the first Action is named of S. in Com' Norfolk and the Arrest is supposed apud S. praed ' so the Arrest is supposed in the County of Norfolk and then it is Tortious and there is not any Escape thereon Per Curiam it s an incurable Error Cro. Eliz. 887. Eden and Floyd In Action or Case on a Rescous The Plaintiff Declaration of Arrest at L. and rescue at W. the same day being 200 miles distant yet not Error declares that A. was indebted to him by Obligation of 20 l. and that he Sued a Writ against him directed to the Sheriff of Cornwal to take A. c. and that the Sheriff 1 Oct. 6. Car. Arrested him at L. in Com' Cornub ' and after the Defendant at Westminster the praed ' 1 die Octob. rescued him out of the Custody of the Sheriff and on non culp ' Verdict and Judgment vers Quer ' he brought Error and Assigned this for Error for that it was impossible he should be arrested at L. and the same day be rescued at Westm ' 200 Miles distant yet the Court will not intend it to be impossible But however see what Reasons the Plaintiff shall have to assign Error on his own Declaration 1 Rolls Ab. 523. Kendal and Kendal Trespass and Assault laid and tried in Somersetshire the Defendant justified by Warrant to the Sheriff of Dorset and that the Plaintiff endeavoured to rescue himself and Issue de injuria sua propria Gold after Verdict prayed Judgment because within the words of 16 and 17 Car. 2. c. 8. there being three Judgments in the Point Wise and Adderly in C. B. Trin. 26 Car. 2. Croft and Tryal shall be where the cause of Action ariseth Winter and Croft and Bays But the Court were not satisfied with these Judgments and resolved that the Statute intended the Tryal where the cause of Action ariseth But there was a Replead ' because the Defendant Traversed absque hâ—c that he was Guilty aliter vel alio modo The reply was he was Guilty aliter alio modo which was a wild Issue 3 Keb. 552 612 Masters and Wood. Pleading In Action on the Case on Escape upon mean Diversity between pleading Rescous in Debt on Escape Averment Process Defendant Pleads a Rescous ever since 6 Car. 1. It hath been held a good Plea Per Cur ' If it be retorned it s a good Plea and it need not be averred in the Plea that it was retorned But in Debt on Escape it s no Plea 3 Keb. 513. Hill and Mountague Bayliff of West In Action on the Case for a Rescous one may If not Guilty may be pleaded to the Sheriffs Retorn of Rescous Traverse c. but Quaere if not Guilty may be pleaded to the Sheriffs Retorn of a Rescous 1 Keb. 258. Rest entr ' 580. le Roy versus Mayor of Hereford Scire fac ' to have Execution of a Judgment in Debt Defendant Pleads That at another time the Plaintiff had sued Execution by Capias ad satisfaciâ—nd ' and that he was taken thereupon Plaintiff replies True it is he sued a Ca. sa and the Defendant was taken thereupon but he presently rescued himself and escaped Replication is good As there is no cause for the Defendant to to have Audit ' Querela when he is escaped and taken again unless it be for a voluntary permission by the Sheriff so there is not any bar for the Plaintiff to have new Execution And tho' it s no good Retorn on a Ca. sa that the Defendant rescued himself for the Sheriff at his own peril ought to have kept him nor any Plea in Debt on Escape yet the Party himself shall never take advantage of his own Tortious Act. And Scire fac ' after the year is well maintainable Cro. Car. 240 255. Robinson and Cleyton Venue Verdict Action on the Case on Rescous is out of the Common Rules of the Court to alter the Venue But it s in the discretion of the Court on circumstances to alter it as Action brought against a Bankrupt may be brought in the County or here where the Commission is awardeâ— Where a Man may lawfully rescue himself 1 Keb. 346. Where a Man may rescue him self and where not There is a difference between a Warrant of Record and a Warrant or Authority in Law for if a Capias be awarded to a Sheriff to Arrest a Man for Felony albeit the Party be innocent yet cannot he make Rescous But if the Sheriff will by Authority which the Law gives him Arrest any Man for Felony who is not Guilty he may rescue himself Coke 1 Insâ— 161. a. Note Four Nobles Fine is a general Fine imposed for a Rescuer Sir Thomas Jones p. 198. In Debt sur Escape versus Vic. Plaintiff declares That J. S. and his Wife were in Execution and that she escaped On nil debet special Verdict sound that the Baron was in Execution and that he escaped and further that the Wife was not taken in Execution being for Debt contracted before Coverture Yet Judgment pro Quer. the Verdict was not in the whole persuant to the Declaration because they found the Hubband Escaped 1 Siderfin 5. Roberts and his Wife against Herbert In Action on the Case upon a Rescous and Escape The Jury find the Deâ—t due to the Plaintiâ—â— the prosecuting the Lâ—â—itat for this Cause the making the Warrant hereupon to the Sheriff c. Cro. Jac. 485. Hodges and Mark. CHAP. XXI Of Escapes Some Maxims and Diversities premised Escapes as to Mean process and as to Execution What shall be or amount to an Escape of a Prisoner out of Execution or not Of Escapes in respect of the Old and New Sheriff and of the Prisoners being delivered over What thing or act shall excuse an Escape or in what Cases the Sheriff or Gaoler shall not be Answerable for an Escape Of Erroneous Process Where the Escape of one shall not be the Discharge of the other and where the oiher shall have Audita Querela or not Actions of Debt or on the Case by the party against the Sheriff for an Escape and who shall have such Action To whom it shall be said an Escape or not at Election Of Escapes ESCAPE is where one that is Arrested or Imprisoned on the Arrest comes to his Liberty before he is delivered
by Order of Law But before I treat of Escapes it will be very advantagious for the better understanding thereof to set down some few Diversities which will help to settle ones Judgment in reading and considering the Cases ensuing Diversities 1. Between a Negligent and a Voluntary or Permissive Escape A Permissive or Voluntary Escape is by the assent privity and knowledge of the Sheriff Gaoler c. Vide postea Where the Prisoner may be retaken or not 2. Between an Escape on Mean Process and on Execution In Escape upon the Arrest by the same Process as a Cap ' ad respondend ' the Writ ought to surmize ad largum ire permisit non comparuit ad diem because the party was Bailable and the Sheriff might suffer him to go at Large Aliter if the Arrest be upon Execution as a Cap. ad satisfac There permisit ire ad largum is good enough Noy 72. Sheriff of Nottingham's Case Vide infra 3. Between an Escape for Debt and for Felony or Treason 4. Between an Escape by a Sheriff or Bayliff and an Escape caused by Rescousers A Rescouser shall be charged with the Debt The Sheriff or Bayliff for a Negligent Escape shall be charged with the Damages only in the same Plea as the Writ supposeth and not with the Debt Lanes Rep. p. 70. 5. Between an Escape in Fact and an Escape in Law As where a man may be in Custody without actual Arrest 6. Between Error in the Proceedings and a Nullity of the Record and how the Sheriff shall take advantage of either 7. Between an Escape in the Life of the Testator and an Escape in the time of the Executor upon Execution in the time of the Testator Note If Judgment be Reversed before Action of Debt brought for an Escape out of Execution the Action is gone 1 Sand. 38. Jones and Pope 8 Rep. 142. Dr. Drury's Case Note It was said by Twisden in 16 Car. 2. B. R. The occasion of so much liberty in the Marshalsea is that the Marshal is not chargable but by Bill which must bear Teste in Term time and so in the former Term the party is not Escaped And by the first Day of the later Term the Prisoner generally is to return to Prison and so no remedy for the party 1 Keb. 794. Of Escapes as to mean Process When a man is in Custody of the Sheriff by Where a man may be in Custody without actual Arrest an Action for the Escape shall be good Process of Law and another Writ is delivered to him to take him presently in the Judgment of Law he is in his Custody without actual Arrest quia Lex non praecipit inutilia as A. recovered in Debt Defendant was Outlawed and after the year the Plaintiff procures a Capias utlag ' and delivers it to the Sheriff of London after the Serjeant Arrests the Defendant to answer I. S. before the Sheriff the Plaintiff delivers the Sheriffs Warrant to the Serjeant who had the Defendant in his House to Arrest the Defendant the Serjeant refuseth and after the Sheriff suffers him to go at Large Plaintiff brought Action against the Sheriff supposing he had Arrested him and Defendant plead non permisit c. 5 Rep. Frost 's Case By Windham in Benskins Case by Law the Bayliffs ought not to hurry away any immediately to Prison but he may call any other persons in aid and so may commit the Prisoner to them 1 Keb. 483. Benskins Case If by assent the Sheriff suffer me to go at Large no Action lies for the Escape Of Escape out of Execution What shall be said an Escape of a Prisoner out of Execution for Debt or not If a man in Execution be suffered to go at Large for a time out of the County and to return again and this upon Bail or Mainprise yet this is an Escape for he ought to be kept in arcta custodia So if he be suffered to go at Large to any place within the County and to return again so if he be suffered to go at Large within the same Town where the Prison is it is an Escape tho he retorn within his time Plowd 36. b. Platts Case 3. Rep. 44. Boyntons Case Hob. p. 173. Earl of Essex The Case was A. recovered upon a Plaint in London against B. and had him in Execution in Ludgate A. died Intestate B. was permitted by the Keeper of Ludgate to go at large into Southwark with J. S. Servant of the Keeper and by the Command of the Keeper The Administrator of A. brought Debt against the Sheriff of London upon the Escape Per Cur. It was an Escape He that waited upon him into Surry could not be Officer to the Sheriff of London and so he had no Keeper For the Power of a Sheriff does not extend beyond his own County unless in Special Cases And the party might have Action of False Imprisonment against him tho' the Baston or Servant waited on him there being Voluntary Dyer 166. accord If the Sheriff removes his Prisoner out of the County without being commanded ' it s an Escape and if he remove Prisoners for ease and delight in the same County it is an Escape as a Prisoner went to a Bearbaiting with his Gaoler in the same County and it was adjudged an Escape so if the Sheriff permit his Prisoner to go to work ' it s an Escape Hetly p. 34. To suffer a Prisoner to walk in the Town tho with a Keeper is an Escape unless it be upon a Habeas Corpus from a Court of Justice Hob. p. 202. If the Habeas Corpus bear Teste in the end of one Term retornable in another this Writ will not warrant the Prisoner to go at Large in the Vacation Hob. ibid. Balden and Temple's Case for tho the Sheriff may remove his Gaol from one place to another within his Bayliff-wick yet he must keep it and his Prisoners within it and not suffer them to go at Large out of the Prison tho he himself be attending on them without an Habeas Corpus from some Court of Justice And let Keepers of Prisons beware when they receive an Habeas Corp. from the Chancery or any other Court bearing Teste in the end of a Term to have the Body of one in Execution in the Court the next Term that they do not by Colour of such Writs suffer the party to go at Large all the mean time as it is sometimes practised for the Writ warrants no more than that he be brought out of Prison only for that purpose and only for so much time as in Judgment of Law as shall be convenient and necessary for the Execution of the Writ and no more which in privilegiis odiosis must ever be strict By Hales in Lutterel and Mosedells Case an Habeas Corpus Hab. Corpus out of that Court to which the party is a Prisoner doth justifie the Gaoler in Assisetime but otherwise if it be
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
by fresh persuit no more though the Information be depending before the taking so that the Officers diligence appear 2 Keb. 384. the King against Sir J. Lenthall Fresh persuit Pleaded The Plaintiff counts of an escape in London and the Defendant Justifies the retaking in Devon so that the escape at London is not answered it s naught upon Demurrer but when the Defendant Pâ—acâ— by his Replication denies not the fresh Suit but by Protestation relies upon this that he was out of the view which is not material for it is not the form of Pleading to say he had him in his view c. it appears not to the Court that he had cause of Action now this Bar is sufficient for the matter but insufficent for the form and there being no Demurrer but a Replication no advantage shall be taken of the Bar for matter of form 3 Rep. Ridgways Case Popham p. 41. Traverse That he died after fresh persuit â—ut saith not ante 〈◊〉 bille mesme case Action on the Case for voluntary escape Defendant Pleads he escaped in November by negligence and Traversed not voluntarily and that he freshly persued and took him and that postea videlicet 27 Aug. he died to which the Plaintiff Demurred because before the escape and especially for the void Traverse But Per. Cur. the alledging the voluntary escape is immaterial and the Sheriff chargable without it and he need not Traverse the voluntary escape but because he doth not say he died ante exhibitionem billae Judgment for the Plaintiff 3 Keb. 55. Read and Bovey The Plaintiff declared of an escape voluntary the Defendant shews a negligent escape ' its good without a Traverse Latch p. 200. Harvey and Reynell In Debt on escape Plaintiff declares that the Defendant Sheriff of Devon suffered one C. who was in Execution to escape in London 18 December Defendant Pleads that the said C. escaped the 16 December in Com' Devon and that he freshly persued him and retook him the 17 December and reteyned him again in Execution absqueâ—â—c that he is guilty alit ' vel alio modo On Defendant must answer to the Escape mentioned in the Declaration as to time c. Traverse alit vel how extend alio modo On nil debet in Escape which may be given in Evidence this it is Demarred because the escape is supposed to be the 18 December and he Pleads the escape 16 December and the retaking the 17 December and so he answers not to the escape mentioned in the Declaration for the Traverse aliter vel alio modo doth not answer to the Time but to the manner of any thing alledged and Per Cur. the Plea is ill Cro. Eliz. 439. Ridgways Case On nil debet Pleaded in escape fresh persuit may be given in Evidence so a release or any thing that destroys the Duty Vid. supra Tit. Evidence 3 Keb. 308 Lutterel and Mosedell Now as to other Pleas and the formality of pleading what shall be good or not the Cases following are of great consideration to instruct us in that useful Learning Debt for an escape is not within the Stat. of Statute of Limitations Limitations tho Action on the Case is the words of the Statute are All Actions of Debt grounded on any Lending or Contract without specialâ—â— shall be brought within six years 1 Siderf 205 206. 1 Sand. 38. Now first This Action is not founded on any Lending or Contract here is a Duty created by the Law without Lending or Contract 2 Inst 388. 2. This Action is founded on a Specialty viz. on a Statute Law for at Common Law no Debt on Escape lay against a Gaoler c. of one out of Execution and the Statute of 1 R. 2. c. 12. gives the Action of Debt against the Warden of the Fleet and this Statute by Construction extends to all other Gaolers and Sheriffs 1 Sand. 37 38. Jones and Pope Acknowledgment of Satisfaction on Record is Acknowledgment of Satisfaction on Record a good Plea The Sheriff brought an Action on the Case against J. for making his escape out of Execution Defendant pleads Confessing all the Matter and that after this Escape he at whose Suit he was condemned had acknowledged satisfaction on Record To which it was demurred Per Cur. The Plea is good because the Defendant is to be charged for that the Plaintiffs are chargable with the Debt and not otherwise and the Defendant hath pleaded Satisfaction acknowledged on Record which may by his means and is not denied for otherwise the Plaintiff might have shewed the Special Matter by Replication Cro. Eliz. 237. Salteston and Payne Accord with satisfaction is no Plea In Scire Accord with satisfaction fac on Judgment in Escape on Oyer the Defendant pleads Executio non because that after the Judgment the Defendant assigned the Obligation of Security of T. the party who escaped which the Plaintiff received and accepted To which the Plaintiff Demurred And per Cur. Accord with Satisfaction is not pleadable after a Judgment 3 Keb. 255. Poole and Mosedell Nul tiel Record is a good Plea Debt on Escape against the Sheriff upon a Nul tiel Record Capias Utlagat ' after Judgment Defendant pleads there was no such Record of the Debt and Damages It is a good Plea on Demurrer 1 Brownl 51. Maddox and Young Hob. pag. 209. In Debt on Escape one may plead That the Command of the Plaintiff Plaintiff commanded him to let him out of Execution Cro. Car. 329. in Vesey's Case In Scire fac on a Recognizance as Bail in a Escape by consent of the Plaintiff pleaded Writ of Error in the Exchequer Chamber The Defendant pleads That the Plaintiff sued a Capias ad satisfaciendum out of the Kings-Bench to the Sheriff of Middlesex and he was taken in Execution thereon and suffered to escape by the Plaintiffs consent The Plaintiff demurs because they do not lay a place where the Court was held nor where the party escaped by Consent 2 Keb. 567. Mod. Rep. 19. Prinn and Smith Payment of the Money to the Marshal is no Bar but payment to the Sheriff on a Fieri fac is good for he is commanded to levy the Money c. but no such Authority is given to the Sheriff Sir Tho. Jones p. 97. Taylor and Baker In Escape the Defendant pleads a Release of him who recovered to the Prisoner being in Execution it s holden no Plea Nil debet in Debt on Escape 19 H. 6. 14. As to Traversing and Forms of Pleading In Trespass and Imprisonment the Defendant That he escaped by the Sheriffe License is good without a Traverse Justifies by virtue of a Capias and the Plaintiff did afterwards escape and he being Sheriff did follow him by virtue of the said Warrant and took him upon the Capias The Plaintiff replied He escaped by License of the Sheriff and Traverseth the latter taking by virtue of the
to Reverse the Judgment and upon his Prayer the Court bailed him that he might prosecute the Suit with effect But this Bail was not entred of Record And the Court held it good Evidence The Escape supposed here is for Bailing is the Act of the Court. letting him go by Bail which is the act of the Court and not of the Marshal and may well be given in Evidence Cro. El. p. 5. Vast and Gandy By Wray upon Execution sued after Verdict Bail upon Attaint altho' the Party Sues Attaint the Court usually does not Bail him for the Verdict is intended true till reversed but on good Considerations they may And tho' the Bail be not entred yet the Plaintiff for his benefit may cause it to be entred and then he may have a Scire fac ' on the Bail and so is not at any mischeif The Party being charged in Mean Process when Committitur to be proved he was in Custody the Evidence may be good without proving any Comittitur but if he were in Execution the Comittitur upon the Roll shall be proved Siderfin 237. the King and Povey In Debt sur Escape if the Defendant Plead No Escape pleaded Evidence no Arrest which must be proved in Evidence on Escape for Mean Process nul Escape he cannot plead in Evidence no Arrest Tryal per Pais 174. Clayt 34. Verdict In Debt on Escape if the Plaintiff Declare of Escape against two and sound against one only an Escape of two and it s found one only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment Siderfin p. 5. Andrews's Case In Debt on Escape if the Plaintiff Declare of the Escape of Baron and Feme out of Execution On the Escape of Baron and Feme the Jury find the Baron only in Execution on Judgment for the Debt of the Wife dum sola and the Jury find the Husband only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment The Jury found not that the Wife was taken in Execution being for Debt contracted before Coverture Siderfin p. 5. Roberts and Herbert 1 Keb. 371. Mesme Case Though the Verdict find an Erroneous Process Verdict finds an Erroneous Process yet the Sheriff shall not take advantage thereof As in Debt on Escape and special Verdict finds an alias into another County without a Capias in the proper County and that I was in Execution and escaped Judgment pro Quer. on 2 Cro. 1. Pl. 1. Co. Dr. Druries's Case because the Sheriff is a Stranger and shall have no advantage thereof 3 Keb. 629. Hide and Hillar One rescued himself and escaped and the Verdict on Rescous before the day laid or after Sheriff brought Action on the Case On not Guilty The Jury sound he was arrested circa the 26 of Feb. and then and there rescued himself Per Cur ' be the Rescous before or after the day supposed in the Declaration its good enough so as it be before the Suit commenced Cro. El. 53. Sheriff of Norwich and Bradshaw Consideration on Assumpsit about delivery of Prisoners in safe Custody and saving harmless of Escapes The Sheriff having one in Custody takes Assumpsit of J. S. to deliver the Prisoner to the Bayliff in safe Custody this is a good Assumpsit and no Escape For the Court will not intend that the Bayliff was absent from the Prisoner Siderfin p. 132. Benskin and French In consideration the Plaintiff who sueth as Bayliff would permit J. S. taken in Execution to Rest in the House of N. till Friday next if he Escape the Defendant would pay the Debt By Hales The Consideration is good in Mean Process but being in Execution its ill But the Action must be brought by the Bayliff or nobody but consideration to make a Special Bayliff is sufficient to save harmless This is no Bond or Promise taken of the Prisoner nor of any for him therefore ' its not within the Statute 2 Keb. 805. Feake and Carter 1 Leon p. 132. Palmer and Smalbrook The Bayliff assumes to save the Sheriff harmless of all Escapes is not good The Declaration is That a Ca. sa on a Judgment was awarded against the Defendant to the Sheriff of Suff. who directed his Warrant to the Plaintiff as his Bayliff to serve it and that the Plaintiff assumed to the Sheriff to save him harmless of all Escapes and that by force of the Warrant he arrested the Defendant and the Defendant intending to make the Plaintiff to be charged escaped for which the Plaintiff in the first Action brought an Action against J. C. the Sheriff upon this Escape and recovered and J. C. brought this Action on the Assumpsit It was moved in Arrest of Judgment that there is no sufficient Cause in the Declaration to maintain an Action for tho' the Sheriff may have Action on the Case against the Prisoner that Escapes yet the Bayliff shall not have it Per Cur ' For the Bayliff was not chargeable to the Sheriff by Law but by Assumpsit and this being his voluntary Act shall be no cause to charge the Defendant but shall only make himself chargable But they agreed If the Bayliff had been chargable by Law without such Promise Action lay for him against the Defendant who caused him to be charged Cro. El. 349. Allerton and Harwood In Consideration he would permit him to go at Large and of 2 s. paid he promised to pay all the Mony in which the Party was condemned in Execution Per Cur ' the Consideration is not good being contrary to the Statute of 23 H. 6. and that a Promise and Obligation was all one and tho' it be joyned with another Consideration of 2 s. yet being void and against the Statute for part it is void in all Cro. El. p. 199. Tetherstons's Case Pl. Dive and Manningham Plaintiff declared Whereas the Defendant was arrested at his Suit on Process the Defendant in Consideration that he should be permitted to go at Large promised that he would appear at the day of the Retorn of the Prisoner or would give him 10 l. and he did not appear at the day Per Cur ' Its a good Assumpsit being made to the Party which had Authority to dispense with his appearance Had it been made to the Sheriff or to any other to his use it had been within the equity of the Statute of 23 H. 6. Cro. El. 190. Millward and Clarke Of Escapes of Felons All Prisoners are such either by Matter of Record or Matter in Fact By Matter of Record when one present in Court is committed to Prison by the Court. There if the Gaoler has not him ready it s an Escape without more enquiry unless he had reasonable excuse and the Judges will set the Fine presently By Matter en fait a Man is a Prisoner when he is arrested by Sheriff Bayliff Constable c. and Escapes there the Jury ought
of Justification and it is not double 7 Ed. 4. 20. Plowd Comment 86. a. Where the Sheriff justifies by Execution he Retorn of the Writ must plead that he retorned the Writ secùs of a Bayliff 1 Leon. p. 144. Parkes and Mosse If a Bayliff justifie by force of a Warrant he Warrant need not say hic in Cur ' prolat ' for the Warrant doth not continue in his hands but he retorns it to the Sheriff 1 Roll. Rep. 327. Curtis and Dowty p. 221. Bateman's Case Tho' the Proceedings in a Court be irregular On Irregular proceedings in a Court Warrant yet if the Court has power to issue out a Capias by this Warrant the Officer may justifie in False Imprisonment Mod. Rep. 173. If a Bayliff justifie by reason of a Warrant he ought to shew the place where the Warrant was made It sufficeth if it be shewed in the Rejoynder 5 H. 7. 24. Justification by Mean Process The Sheriff ought to Retorn his Writ otherwise The immediate Officer must shew the Process Retorned Justification is not good But it is not so with the Servant False Imprisonment was brought against the Sheriffs Bayliff he Justifies by the Sheriffs Warrant on Latitat who arrested the Plaintiff and required the Defendant to be aiding to him but pleads not That the Writ being Retorned was executed Yet per Cur. its good for the has no means to reinforce the Sheriff to make Retorn thereof Cro. Car. 446. Girling's Case In Action of False Imprisonment the Defendant Justified by Process to the Bayliff out of the Court of the Honour of P. and does not shew any Process was Retorned which as Girling's Case is being an immediate Officer must be shewed contra of an Under-Officer And altho' he need not shew forth the Letters Patents yet it must be specially pleaded such a Court was granted and that virtute c. 2 Keb. 156. Haywood and Wood. If the Defendant in Justification of an Arrest pleads That a Bill of Middlesex was prosecuted against the Plaintiff by which the Sheriff made and directed a Warrant to arrest him it shall Bill of Middlesex intended to be delivered to the Sheriff before the Arrest be intended that the Bill was delivered to the Sheriff before the making of the Warrant till it be specially shewed to the contrary In this case he Justifies by Writ to the Sheriff and Warrant to himself 1 Sand. 299. Green and Jones The Causes of Demurrer were because it s not shewed the Writ was delivered to the Sheriff nor the Warrant made before the Arrest and also for that it s not averred that the Writ was Retorned But non allocantur this is no essential Matter nor Traversable And the Plaintiff might have Replied That the Arrest was before the delivery of the Writ else the Court will intend it to be delivered being said that Virtute of a Writ directed to the Sheriff and warrant the Defendant arrested and the Writ needs not to be Retorned by a Bayliff-Errant 2 Keb. 338. mesme Case p. 838. 844. So in Scire fac on Recovery in Action on the Case the Defendant pleads no Capias issued out against H. delivered to the Sheriff Plaintiff Replies a Capias issued out and Non est inventus Retorned but says nothing of the delivery to the Sheriff Defendant Demurs and Judgment pro Quer ' for the Delivery to the Sheriff shall be intended 3 Keb. 668. Holmes and Araker Bail for H. The Time when a Latitat issued forth is As to the Time of the taking out the Writ actually and the Teste of it Traversable and may be averred otherwise than according to the Teste Per totam Curiam for a Relation shall not work a Wrong 2 Keb. 173 198. Bolton and Johnson If a man be taken in the Vacation by a Warrant without a Writ and a Latitat be procured Teste in the Term that Teste shall not discharge the Wrong done after the Teste and before the actual taking out of the Writ but the Plaintiff may take Issue that he prosecuted truly But in Trespass and False Imprisonment the Defendant as Sheriffs-Bayliff Justified by a Latitat Teste 27 June Trin. Term past The Plaintiff Replies That the said Writ was really and actually prosecuted out of B. R. on the 9th of August which was after the Arrest of the Plaintiff Defendant Demurs And per Cur. this is an Estoppel especially in case of a Bayliff whose Warrant might be before the Arrest and all Writs must be Teste as of the Term and the Sheriffs not Retorning the Writ or the not having any shall not prejudice his Under-Bayliff But per Cur. a good Action will lye against the Sheriff or Bayliff of a Franchise in this Case But in Plunket and Green's Case in the same Reporter In Trespass and False Imprisonment against the Sheriff and Bayliff the Defendant Justified by Warrant on Writ to the Sheriff as Long and Bolton's Case The Plaintiff Replies No Writ was then taken out Defendant demurrs and Judgment pro Quer ' for tho' the Bayliff hath Warrant and no Writ a Warrant yet he is liable if there be no Writ contra if the Writ be void and delivered 2 Keb. 705. Plunket and Green And in Bennet and Filkin's Case Trespass and False Imprisonment the Defendant Justifies by arrest on Latitat Plaintiff Replies The Writ was taken out after the Arrest Defendant demurs Per Cur. the ante-date of the Writ will not suffice if the proceeding be after And Judgment pro Quer. 3 Keb. Chancy and Rutter And as to Pleading as to the Time Richardson and Pricket's Case is to be observed The Plaintiff supposed the Arrest and Imprisonment to be 10 Decemb. 29 Eliz. Defendant pleads by virtue of a Warrant from the Sheriff he did arrest and imprison him the 2d and 3d day of December before absque hoc that he was guilty before or after c. Plaintiff Replies He was guilty of the Trespass c. after the 3d day of December prout in Narratione suâ specificatur and Issue upon this and well enough tho' he saith only he was guilty after the 3d day but saith not and before the Action brought For when it s said He was guilty after the 3d day c. prout c. it is to be intended to be the 3d day and the day of which he Counted Cro. El. 95. Richardson and Pricket To all the Imprisonment but 11 Hours the Defendant pleads Not guilty and to the Imprisonment for 11 Hours he Justifies as Sheriff for that the Plaintiff hindred him in the Execution of his Office and said nothing to the Vi armis yet good 1 Sand. 78. But this Case went further 2 Keb. 237. the Trespass and False Imprisonment was laid the 1st of April the Defendant Justifies at another day at Warw. as Sheriff absque hoc that he was guilty the 1st of April or at any time before or
Defendants plead a Special Justification viz. That in Nov. 2 Jac. Action of Trespass was brought by A. against Julian G. and on General Issue found for Julian G. and Judgment â—or her and afterwards and before Execution Julian G. marries the Plaintiff D. and afterwards Writ of Error was brought in B. R. and upon a Scire facias against the said Julian Judgment in C. B. was Reversed and afterwards Ca. sa was directed to W. and W. the Sheriff to take the said Julian G. and they took her with an Averment That the said Julian G. and the Wife of the now Plaintiff was one and the same person Plaintiff demurrs because when the Warrant Trespass vers A. and his Feme the Feme after marries and her first Name continued in all proceedings is against Julian G. there is no such Julian G. for by her marriage with the Plaintiff she had another Name and his Averment cannot help him because it agrees not with his Warrant But aliter had the Variance been in the Name of Baptism only But per Cur. the Scire facias was according to the Judgment in the C. B. and well then might all the subsequent Process be so But if the Husband had come upon the Scire facias and shewed how that she was Covert then the Action ought to be against both of them And 2. The parties themselves in all the proceedings throughout have all admitted that she is the same person and had the same Name and they shall be concluded from saying the contrary And tho' the Sheriff had shewed the Marriage this was but a bare Allegation and A bare Allegation of the Sheriff doth not make a thing appear Judicially Suggestion of the Sheriff and it appears noâ— whether it were Judicially so or not 3. It would be dangerous for the Sheriff to Retorn a Non est inventus for because the parties have all admitted her Name to be so in all proceedings the Sheriff shall be Estopped also 3 H. 7. 10. and then Action on the Case would lye oâ— the false Retorn if the Woman should be in thâ— company of the Sheriff and the party shew her to the Sheriff and she escape 1 Brownl 226 Doyley and Webb 2 Bulstrode 80. mesme Case In Trespass for taking Goods Defendant pleads a Recovery in the Court of Dorchester in Debt against the Plaintiff and Execution upon this by Fieri fac and Justifies the taking appraising and sale by Consent of the Plaintiff in part of the satisfaction of the Judgment recovered Quae est eadem captio Plaintiff demurs because the Defendant varying in the time of the taking from the time alledged in the Declaration he ought to traverse any other Taking for the same Goods may be taken at several times and the Quae est eadem captio is not sufficient as Marshall and Dicken's Case Sir Tho. Jones p. 146. Allen and Chamming But per. Cur. the Averment sufficeth Keilw 27. 1 Bulstr 138. Cro. Car. 228. Justification in Trespass Assault and Battery by Process out of an Inferiour Court of Record is not good without shewing whether the Court was holden by Charter or Prescription Sir Tho. Jones p. 165. Strode and Deering In Trespass of Battery the Defendant justifies the Process to arrest one Wood and the Plaintiff would have Rescued him whereupon he did molliter manus imponere The Plaintiff Replied De injuria sua propria De injuria sua proprtâ— with a special Traverse absque hoc that the Defendant had virtute of such a Warrant taken as that by which the Defendant Justified Defendant demurs Per Cur. The Justification is sufficient and better by the admittance in the Replication than if the Issue had been offered De injuria sua propria generally without such Traverse 2 Keb. 293. Haywood and Wood. In Trespass and Imprisonment the Defendant That which is confessed and avoided not to be traversed Justifies by a Capias and that the Plaintiff did afterwards Escape and he being Plaintiff did follow him by virtue of the said Warrant taken out upon the Capias Plaintiff Replies He escaped by the License of the Sheriff and traverseth the Later taking by virtue of the 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 CHAP. XXV Of Attachments against the Sheriff where and in what Cases it lies or not And where against him for a thing done out of his Office Attachment of Money in the Sheriffs hands Of Attachments against others and against the Goods and the Retorn Of Amerciaments where and in what Cases the Sheriff is to be amerced Of Attachments against the Sheriff where and in what Cases it Lies or not ATtachment shall not be granted against the Not for the Contempt of his Bayliffs For frivolous retorn of an Hab. Corpus High-sheriff for the Contempt of his Bayliff March p. 54. Attachment against the Sheriff for a frivolous Retorn of an Habeas Corpus The Retorn was That the Committee for poor Prisoners ordered he should not bring the Body till they had consulted with the Lord Chief Justices And an alias Habeas Corpus under pain of 80 l. Stiles Rep. 422. Attachmant against a Sheriff for refusing to For refusing to bring Money into Court Not retorn of Habeas Corpus For executing Process against the Rule of Court bring Money into Court Attachment lies by the Rules of the Kings-Bench for not making a Retorn of Habeas Corpus upon a pluries Habeas Corpus issued forth Pr. Reg. tit Attachment Attachment lies against a Bayliff for executing a Process of this Court against a Rule of the Court having notice Pr. Reg. ibid It was a doubt whether Attachment lies Against a Sheriff when he was out of his Office for a misdemeanor during his Office against a Sheriff when he was out of his Office for a Misdemeanor in his Office Capias was delivered to the Sheriff against J. S. and the Plaintiff shews him to the Sheriff and he saw him but he turned about and said I cannot see him and after Retorns non est inventus and then his Office determined Dodderidg and Jones granted an Attachment against him tho' he was out of his Office for this Contempt during his Office Latch p. 176. and p. 217. Dixons's Case But they two denied an Attachment against a late Sheriff for retorning non invenit emptores and then his Office determins and he detained the Goods in his hands Note Attachment of Mony in the Sheriffs No attachment in the Sheriff hands hand is void for the Sheriff at the Retorn of the Writ ought to answer for the Money 1 Leon. p. 264. Attachment against others An Atatchment against a Man is a non omittas Attachment is a Non omittas in it self and the Sheriff
may break his House to take him for the Writ is for his person 1 Rol. Rep. 339. Briggs's Case If the Party Defendant be Attached or Distrained by Process out of any Court of Record or County by force of a Justicies c. Hundred Court or any Court Baron and make default the Goods or Issues are forfeited and upon the Attachment the Sheriff or other Officer may take the Goods with them * On Attachment the Sheriffs ought to Retorn the certainty of the Goods and why and the value And this is the Reason that upon the Attachment the Sheriff or other Officer ought to Retorn the certainty of the Goods and the value and it is not sufficient to Retorn that he hath Attached or Distrained the Defendant by Goods to such a value and so upon the Distress the Issues must be retorned in certain because they are upon default to be forfeited vide supra tit original Process 3 Inst. 228. The Sheriff is to bring an Attachment upon the Writ of ne exeat regnum until he finds Sureties 1 Rol. Rep. 313. Where and in what Cases the Sheriff is to be Amerced The Sheriff is to be amerced for the faults of For the faults of his Special Bayliffs his Special Bayliffs for the Sheriff is the Officer to the Court and not they But if the Sheriff Retorn quod mandavit ballivo c. qui respondit c. if the Retorn is sufficient and a default is for not doing according to the Retorn the Bayliff shall be amerceed and not the Sheriff As if the Where the Bayliff shall be amerced and not the Sheriff Sheriff Retorn quod mandavit ballivo Libertatis c. qui respondit qd ' cepit J. S. according to the Writ and he shall be here at the day if he bring him not at the day the Bayliff shall be amerced and not the Sheriff But if the Chamberlain of the County Palatin of Chester makes an insufficient Retorn to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because he is the Officer responsible to the Court. Now in Palmer and Marshes Case 1 Brownl 36. If the Sheriff Retorn quod mandavit ballivo Libertatis qui sic respondit and retorn an insufficient Retorn in Law the Sheriff shall be amerced for he might have retorned ballivus nullum responsum dedit * Amerced for the insufficient Retorn of the Bayliff of a Liberty If the Sheriff Retorn feci retornum istius brevis G. L. ballivis Libertatis G. qui habent retornum brevium Executionem eorundem qui mihi reâ—â—onderunt qd ' istud mandatum adeo tarde receperunâ— per manus Attornat ' sequentis qd ' nihil inde facere potuerunt the Sheriff shall be amerced for this Retorn for he ought to have Retorned it to the Bayliff time enough for them to serve it Trin. 39 El. B. R. Palmer and Marsh 1 Ed. 1. 13. b. If no Retorn be made for part by a Bayliff of a Liberty the Sheriff shall be amerced As in a Praecipe qd ' reddat if at the grand Cape the Sheriff Retorn quod mandavit J. Bayliff of a Franchise c. who retorned that he had taken the Land into the Kings hands and speaks nothing that he had summoned the Tenant as the Writ commands him the Sheriff in this case shall be amerced for that no Retorn is made of part 4 H. 6. 25. b. By the Stat. of 27. H. 8. 24. Amerciaments for insufficient Retorns of Writs made by Baliffs of Liberties shall be set upon the Heads of such Bayliffs and not upon the Sheriff nor upon the Lord of the Franchise If the Sheriff be amerced by the Court for the Increase of Amerciaments not doing a thing belonging to his Office and yet he continues to neglect to do it contrary to the Rule of the Court the Court may increase the Amerciaments till he do his Duty therein But Amerciaments set upon the Sheriff upon the Amerciament estreated with a Respectuat motion of the Party if they be not Estreated into the Exchequer may be with a Respectuat ' that is be respited if the Party grieved who caused him to be amerced will consent thereunto otherwise not Pract. Reg. p. 18. If upon a Latitat the Sheriff do Retorn a Cepi Amerciament for not Retorn Corpus and the Party arrested on this Process doth not appear at the day of the Retorn the Sheriff may be amerced by the Court yet tho' the Sheriff be amerced if the Party arrested do appear within a week after the day he ought to have appeared the Amerciament may be taken of the Sheriff Pract. Reg. 18. If a Debt be levied by Fieri fac ' and delivered to the Plaintiff and the Writ is not retorned yet the Execution and Sale is good but the Sheriff shall be amerced for the Non-retorn of the Writ 5 Rep. Hoes Case It was moved to have the Sheriff amerced for Not for retorning too small Issues retorning too small Issues Coke said we cannot do so for saith he it doth not lie in our Conisance whether they are too small or not but you are put to your Amerciament 1 Roll. Rep. 339. Goates's Case A Bishop shall be amerced for an Escape 100 l. Amerciaments for Escape of persons convict a Gaoler shall be amerced for a negligent Escape of a Person Attaint 100 l. and if one convict 5 l. 2 Inst 28. An Exigent which was delivered of Record to the Sheriff was imbesilled and the Copy thereof was retorned by the Sheriff and he was amerced for the Retorn of the Copy at 30 l. and for imbesilling the Exigent at 20 l. 5 H. 4. 5. CHAP. XXVI Remedy against Sheriffs Bayliffs c. for Male-feasance As imbesilling an Exigent for entring into a Corporation which had Retorna Brevium For not delivering a Supersedeas to the new Sheriff For concealing or substracting a Writ For refusing sufficient Bail and forcing to find extraordinary Bail For taking sufficient Bail For not bringing Money levied by Fieri fac ' into Court. And Stat. of Limitations pleaded Remedy against Sheriffs Bayliffs c. IF the Sheriff in his Court quash an Essoyn Erroneously For quashing an Essoyn without the consent of the Suitors Action on the Case lies against him for the Party cannot have his false Judgment on this 26 Assize 45. If a Distring as Issues to the Sheriff to Distrain the Defendant in the Action by all his Lands and Chattels c. and the Sheriff Retorns trop petit Retorns Trop petit Issues Issues too small Issues altho' an Averment lies by the Stat. W. 2. c. 43. Yet the Plaintiff may well have his Action on the Case against the Sheriff because it appeareth by the words of the Statute that this is a false Retorn and the words are qd ' Distringeret by all his Lands and Chattels Ita qd '
de exitibus eorum c. so that if he do not Retorn all the Issues he does not as he is commanded The Statute ordains that the King shall have the Issues but restrains not any Remedy that the Plaintiff had at Common Law 3 Car. 1. Dorothy Bennet against the Sheriff of London If the Sheriff imbesil an Exigent delivered to For imbesilling an Exigent him at my Suit Action on the Case lies tam pro Dom ' Rege quam pro meipso 41 Assize 12. A Knight for the County brought Action For not levying Expences in Parliament against the Sheriff for not levying 10 l. 4 s. for his expences in attendance in Parliament 17 Ed. 3 B. R. Rot. The Sheriff was punished in the Star-chamber for neglecting to Execute a Capias Utlagat ' after Judgment Hob. 264. Action on the Case lies against a Sheriff for For entring into a Corporation which had retorna brevium entring a Corporation which had Retorna brevium 1 Rol. 118 119. The Town of Darby vers Foxhen J. S. recovered a Debt against Calthrop and procured a Writ of Execution to W. P. Sheriff of D. but before the Writ was executed Calthrop procured a Supersedeas to the said P. who when his time was out delivered all the Writs to the new Sheriff but not this Supersedeas so that J. S. procures a new Writ of Execution to For not delivering a Supersâ—deas to the new Sheriff the new Sheriff upon which 18 of Calthrops Beasts were taken And he brings his Action against P. for not delivering over the Supersedeas By the Prothonotaries the Course is to take a new Writ to the new Sheriff But the Court inclined that the Action lay for the Writ to the old Sheriff is quod comitat ' praed ' una cum brevibus rotulis memorandis omnibus officium illud tangen And an Action will lye for not delivering some Writs to the new Sheriff which is not retorned as Estrepment Mod. Rep. 222. Calthrop and Phillips He at whose Suit the Party arrested Rescues himself and Escapes from a Special Bayliff or Bayliff errant shall have Action against the Sheriff only Vid. tit Under-sheriff Atterton and Harwood Warrant on Fiere fac ' is directed to the Under-sheriff Against undersheriff for concealing a Wâ—it of a Liberty and he levies the Debt but conceals the Writ Action on the Case lies against him M. 12 Jac. B. R. Bell and Satesby If the Sheriffs Deputy substracts a Writ which Against the Sheriffs Deputy for not substracting a Writ Bayliff of Liberty chargable for his Servant is to be retorned Action lies against the Sheriff And yet the Deputy may be punished for this falsity by deceipt 19 H. 6. 71. b. Servant of a Baliff of a Franchise Sworn by Deputation to serve Process but of such a Sum and he serves Process of a greater Sum without Warrant and levies the Money and parts with it the Bayliff shall be chargable Hetley p. 12. Sir John Lenthal his Prisoner having agreed For not discharging a Prisoner without paying Action Money with his Creditors would not discharge him without paying to him Action-Mony By Glyn S. J. there are two Remedies against him Action of false Imprisonment or Indictment for Extortion Fees must be paid and no more Stiles Rep. 454. Welberly and Sir John Lenthall Vid. tit Fees But Bayliff of a Liberty is not chargable for the Gaoler Vid. supra As for what Remedy there is against the Sheriff for refusing sufficient Bail the Law stands thus If a Sheriff or Mayor refuse sufficient Bail For refusing suffient Bail against the Statute of 23 H. 6. c. 10. by which the Penalty of 40 l. is given one Moiety to the King and the other to the Party who will Sue for it In this Case no Action lies by Bill in the Kings Bench against the Sheriff c. Because the Statute of 18 Eliz. is That no person shall Sue any Penal Statute but by information or original Action and not otherwise But Note It is not limited by the Statute of 23 H. 6. c. 10. how the Penalty shall be recovered but generally that he shall forfeit 40 l. one Moiety to the King and the other to him that Sues 3 Inst 194 6 Rep. 17. Gregories's Case 1 Rolls Ab. 537. Whidiston and Clerk Action on the Case doth not lie against a Sheriff For taking insufficient Bail for suffering a Prisoner to go at large upon the taking insufficient Bail vid. supra pasc 2 Jac. C. B. in the Case of the Lady Mounson against the Sheriff of Lincoln for taking insufficient security upon Stat. of 23 H. 6. It was adjudged That the death of one of the Sheriffs did not abate the Writ 2 Sanders 5. Postern and Hanson Hutton p. 120. Metcalf and Hodyson p. 77. Trevor and Michelbourn 1 Keb. 56. Stalford and Bateman Action on the Case lies against the Sheriff Action of the Case against the Sheriff for not bringing Money into Courâ— levied by Scire fac Statute of Limitatitions pleaded for that he levied such a Sum of Money on a Fieri fac ' at the Suit of the Plaintiff and brought not the Money into the Court at the day of the Reâ—orn The Defendant pleaded the Statute of Limitations 21 Jac. It s Ill. An indebitatus Assumpsit would lye against the Sheriff in this Case or against his Executors and then the Statute might be pleaded If the Fieri fac ' had been retorned the Action would have been grounded upon the Record and its the Sheriffs fault that the Writ is not retorned But however Per Cur ' the Judgment in this Court is the Foundation of the Action And so Judgment pro Quer. that is not within the Statute of Limitations Mod. Rep. 24. Action on the Case against a Bayliff for concealing a Scire fac ' after he had levied the Money upon it 1 Roll. Rep. 78. One is Arrested for 600 l. and forced to find extraodinary Bail Action on the Case lies CHAP. XXVII Of the Sheriffs demeanor in Assignment of Dower and the Retorn The Proclamations The Sheriffs Office about Partition His demeanor in the Writ De Ventre inspiciendo About Retorning a Force About a Vi Laica removenda How the Sheriff shall demean himself in a Writ of Enquiry of Waste and of the Retorns thereof Of the Writ of Estrepement and the Retorn The Sheriffs Office in a Writ of De Excommunicato capiendo Retorns of Sheriffs as to Clerks Retorn of a Writ of Entry Retorn of an Assize Quare Impedit De Malefactoribus in parcis Of the Sheriffs demeanour in Assignment of Dower and the Retorn THe Sheriff may not assign Dower against Common Right If the Sheriff assign one Mannor upon Dower recovered of three Mannors it s not good it Mannor ought to be a Third part of each But he may Assign all the Meadow Pasture c. Mo. 12. n. 47. 19. n. 66.
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
the Hustings of the Sheriffs Courts of the City of London the Writ of Error to Reverse this Judgment must be brought in the Court of the Hustings before the Lord Mayor for that is the Superiour Court Pract. Reg. 124. 4 Inst 247. Direction of Writs Quodlibet breve quod tangit liberum tenementum dirigitur Majori Vicecomitibus alia brevia tantum Vicecomitibus The Two Sheriffs of London do each of them Sheriffs Courts when kept keep a Court of Record where they hold Plea of all Personal Actions and the two Prisons called the Compters belong to them And they have two Court-Days in every Week apiece For the Woodstreet-Compter on Wednesdays and Fridays for the Poultry-Compter on Thursdays and Saturdays In a Plaint of Debt levied before any of the Sheriffs the Custom is That the said Sheriffs Ore tenus send to the Serjeants of the Compter either to Summon or Attach the Defendant without Warrant and upon Nihil Retorned within the City that then the Serjeants and every of them by the Commandment of the Sheriff have used to Attach and Arrest the Defendant to have his Body at the next Court before the Sheriff at the Guild-Hall c. In this manner they certifie their Records But the usual practice is to Enter an Action in the Office for that purpose at one of the Compters which Action must be Entred with Care For it is the Original in that Court by which you must Declare and from whence there must be no Variance And when an Action is Entred then any one Of Entring Actions in Crmpters of the Serjeants may Arrest the Defendant and bring him into Custody until he find Bail to Answer the Condemnation which Bail is to be Bail taken by one of the Clerk-sitters The Defendant may be Arrested by the Custom Arresting by Serjeants of London after Entry of the Plaint in the Porters-Book before the Entry of it in Court before the Sheriff And after Plaint Entred the Serjeant may Arrest without Precept The Serjeant need not shew his Mace because Serjeant shewing his Mace he is sworn and known altho' not to the party and a known Bayliff need not shew his Warrant altho' demanded But in 6 Rep. 52. Countess of Rutland's Case a General Arrest by a Serjeant by shewing the Mace and touching his Body with it and saying ☜ Sir I Arrest you is insufficient for he ought to shew at whose Suit out of what Court for what and of what Retorn c. That the party may know c. In Escape the Defendant pleads the Custom of Escape London That the Mayor and Sheriffs of London have used to enlarge Prisoners that were Arrested in coming and retorning from their Courts having Causes there depending and sets forth a Plaint in London against the Defendant and that hether the Court can discharge one arrested who is coming and teturing to the Court. he was arrested and appeared and pleaded to Issue and as he was coming to Court to defend that Action he was arrested as is supposed in the Declaration And per Cur. the Court cannot discharge one arrested except he be arrested in the Face of the Court 1 Brownl 15. Wilson and The Sheriffs ef London CHAP. XXX The Sheriffs Duty as to the Assizes And as to Sessions of the Peace The Form of the Warrant made by the Sheriff or Undersheriff for Summoning the Assizes vide Dalton 196. A Schedule may be Filed to the backside of the Warrant wherein he shall set down the names of the Grand Jury and Petty Jury of Life and Death to whom he must give warning by his Bayliff The High Sheriffs themselves are to attend the Judges at the Assizes And also Stewards Bayliffs and other Ministers of any Liberties or Franchises c. shall be attendant to the Justices of Assize and Gaol Delivery of the same Counties wherein such Liberties and Franchises shall be And shall be fined by the Judges in case of failure Every Sheriff and all other persons which have the Custody of the Gaols or Prisoners for Felony ought to certifie the names of every of their Prisoners which are in their Custody for Felony to the Justices of the next Gaol Delivery upon pain of 5 l. for every default CHAP. XXXI Of Sheriffs and Officers Fees Remedy and Security for Fees Extortion Punishable What Assumpsit good as to paying Fees or not Of Sheriffs and Officers Fee AT Common Law a Sheriff might not take any Fees but it was Extortion But now he may take the Fees allowed by the Statute Cro. El. p. 654. Stanton and Sullyard The Statute is 29 El. c. 4. No Sheriff Under-sheriff Sta. 29 El. c. 4. of 12 d. in the Pound Bayliff of a Liberty or any of their Deputies shall either directly or indirectly take more for serving an Extent or Execution than after the Rate of 12 d. in the Pound for every 10 l. and 6 d. for every Pound above 100 l. on pain to forfeit treble Damages to the party grieved and besides 40 l. between the Queen and the Prosecutor This Act not to extend to Fees of Executions within Cities or Corporations Yet the Sheriff by the Equity of Stat. 23 H. 6. c. 10. he shall take 4 d. for every Warrant Winch. 21. Upon the words of this Statute it was a Question much Argued in Latch 17. 51. Welden and Vesey Jones 307. Lister and Bromley Cro. El. 335. Gurney's Case Cro. Car. 286. Lister's Case Winch. p. 21 50. Empson's Case where the Statute gives 12 d. in the Pound for the first 100 l. and if exceeds that then but 6 d. Whether this shall be taken but only 6 d. in the Pound for all that exceeds 100 l. or whether he shall have 12 d. for the first 100 l. and Six pence for the rest And it was Adjudged that he shall have 12 d. for every Pound of the first Hundred and 6 d. for every other Pound above the Hundred And so is the constant practice Tho' Hobart in Winch. 50. Empson's Case was strong against it and that the Sheriff shall have but 6 d. in the Pound As to the Proviso That it shall not extend to Executions within Cities or Corporations it was held That it was only to be intended for the executing Judgments given in the Courts of the said Corporation and not to the Sheriffs of Cities or Corporations for executing Judgments out of Superiour Courts Jesson Sheriff of Coventry's Case cited in Lister and Bromley Cro. Car. 287. Vide Latch 17 52. Poph. 173. Welden and Vesey The Case Argued In an Action upon this Statute of 29 Eliz. against the Sheriff for excessive Fees it was moved in Arrest of Judgment because it said ad Parliament ' tent ' per prorogat ' 15 Febr. 29 El. Stat. 29 El. when began and the Rolls appeared by Copy sworn 29 Oct. 28 Eliz the Parliament began and an Adjornment to 17 Nov. 6. and