Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	administrator_n	execution_n	executor_n	1,786	5	10.6402	5	false

Text snippets containing the quad

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

tho' the Debt was well assigned And upon a Constat of Goods in another County he may well have a Scire fac ' into another County 2 Leon. n. 90. Bendl. 23. But if Executors plead plene administravit it was found they had Assets and a Fieri fac ' issued to the Sheriff who Retorned that they had not any thing within the County Per Cur ' Its a good Retorn because the Jury it may be found Assets in another County so the Verdict shall not bind the Sheriff 2 Brownl Rep. p. 116. Morgan and Took If it appear by the Defendants Plea that he hath When the Sheriff may ret●rn Devastauit Assets in his hands and if the Sheriff cannot levy the debt in the Defendants hands he may upon the Defendants own shewing without any damage retorn a Devastavit and if Judgment be given against an Executor on Demurrer and Execution awarded the Sheriff cannot Retorn Nulla habet bona Testatoris But it is a Devastavit if it be found against the Executor by Verdict Cro. Eliz. 102. Stubs and Rightwise Judgment was given in Banco de bonis Testatoris Special Scire fac ' and Fieri fac ' issues out the Sheriff Retorns Nulla bona the Plaintiff may have a Special Fieri fac ' That the Sheriff shall levy the Debt of the Goods of the dead and si sibi constare poterit Fau● Retorn that the Executors have wasted them then de bonis propriis and if the Sheriff makes a False Retorn the party may have an Action on the Case But if upon the Retorn of Nulla bona and a Quia Testatum est that they have wasted a Writ of Enquiry is awarded what Goods were wasted and it s found that Goods ad valentia● of the Debt were wasted and upon that a Scire fac ' to have Execution de bonis propriis upon two Nichils retorned This is Erroneous and if the Inquisition be false the party hath no Remedy and upon two Nichils retorned the Defendant shall be condemned yet perhaps he had not Notice 5 Rep. Pettyfer's Case To that purpose is a Case in Littleton's Reports Judgment was given against the Executor and Execution awarded and the Plaintiff informs the Sheriff that the Executors have wasted the Goods of the Testator but the Sheriff would not retorn a Devastavit Henden Serjeant moved for a Commission to enquire whether the Goods were wasted and if it be found then the Sheriff might retorn a Devastavit without peril But the Judges said they would not Advise because it was a New course Lit. Rep. 47. But in Aldworth and Peel's Case it was Resolved There Debt was brought against Peel as Executor the Plaintiff had Judgment to recover de bonis Testatoris and thereupon a Scire Scire fac ' de bonis propriis shall not be awarded upon the surmize of the party but on the Retorn of the Sheriff of a Devastavit fac ' was awarded and the Sheriff retorneth quod nulla habuit bona Testatoris and the Plaintiff surmizeth that he had wasted the Testator's Goods whereupon he prayed a Scire fac ' why he should not have Execution de bonis propriis And per Cur ' this Writ shall not be awarded upon the surmize of the party of a Devastation nor in any case where the Judgment is de bonis propriis unless it be on Retorn of the Sheriff where he retorns a Devastavit Cro. El. 530. Aldworth and Peele If A. recover against B. Debt and Damages and after B. died and Administration is granted to C. his Wife who wastes the Goods and after takes D. to Husband and a Fieri fac ' is awarded de bonis Testatoris in the hands of D. and C. and the Sheriff Retorns Nulla bona c. and upon this on surmize that they have wasted the Goods another Writ was awarded to the Sheriff Si sibi constare poterit per Inquisition ' that they have wasted the Goods then to warn them to shew cause why Execution should not be de bonis propriis and so an Inquisition is taken And the Sheriff Retorned That they had not in their hands any of the Goods of the Intestate but that the Feme being Administratrix of her first Husband had Goods of the value of 100 l. of the said Intestates and had wasted them during her Widowhood and the Husband had not wasted any of them Et si devasterunt according to the Writ the Jury pray the Discretion of the Court Per Cur ' This Special Retorn of the Sheriff is good and by this the Husband is ☜ to be charged for the Conversion of the Wife Cro. Car. 603. King and Hilton The Sheriff Retorns a Devastavit no Assets over being in Question on Non est factum against an Administrator by Fieri fac ' with a Scire fac ' Per Cur ' Tho' it be a False Retorn we cannot Faux Retorn help it but it s at the Sheriffs peril 3 Keb. 530. Brown and Collins On Fieri fac ' with a Scire fac ' and Assets the Sheriff returned Waste and the Defendant pleaded plene administravit The Plaintiff demurred because the point of the Inquisition is not traversed and Judgment pro Querente Debt against an Executor and a Recovery by Verdict and Judgment upon this and a Fieri fac ' de bonis of the Intestate upon which a Devastavit was retorned an Elegit issues de bonis propriis Mo. 299. n. 446. Mead and Cheney If A. recover against B. and Execution de bonis The party may discharge himself of a Devastavit by Plea That the Sheriff levied the Money on the first Fieri fac ' Testatoris si non de bonis propriis and the Sheriff upon a Fieri fac ' levies the Moneys and after to another Fieri fac ' to him directed Retorns a Devastavit and upon this a Scire fac ' is granted against B. to shew cause c. B. may discharge himself of this Devastavit by Plea that the Sheriff levied the Money upon the first Fieri fac 1 Roll. Abr. 903. Middleton and Powell President Retorn of a Fieri fac ' upon a Devastavit Dyer 222. But now the Practice is more nimble than by the tedious Inquisitions and that is by bringing Action in the Debet and Detinet against an Executor suggesting a Devastavit in his Declaration without any Retorn of the Sheriff Siderfin 397. Wheatby and Law On a Fieri fac ' in a Scire fac ' to have Execution de bonis propriis Sheriff Retorns upon Inquisition That the Defendant Administrator habuit bona catalla Plea to Scire fac ' de Devastavit in manibus suis quae fuerunt del intestate tempore mortis suae ad valentiam debiti damnorum recovered by the Original Judgment and that the Defendant bona catalla illa ad valenc ' debiti damnorum praedict ' vendidit elongavit ac in

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 Mea● 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 wh●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 B●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

Utlegat ' 312 313 Daclaration in Action on Escape vid. Escape Where and in what Cases the Sheriffs Retorn of a Devastravit shall be good and the late practice in Cases 190 The Party may Discharge himself of a Devastavit by Plea That the Sheriff levied the Money by Fieri fac ' 193 Sheriffs Demeanor in a Writ of Dower 384 E ELegit The nature of it as to Land and Goods 247 What things may be extended or not 248 Inquisition on Elegit when void or not 249 Where a new Elegit or re-extent may ibid. Be or not 254 256 Of Capias ad Sat. after an Elegit 255 The Sheriff not to deliver a Lease at another value than the Jury find it 250 The Sheriff to set out the Moieties distinctly ibid. On a second Elegit the Sheriff can only deliver a Moiety of a Moiety ibid. The Sheriff to deliver the Moieties and not the Jury 253 There must be an Inquisition and the Sheriff himself cannot extend it 255 Actual possession not to be delivered on Elegit only to enable one to bring Eject ' Firme 251 The Retorns on Elegit what are good or not 252 The Entry of the Retorn of Elegit on the Roll ibid. Extent by the Bayliff of a Liberty and Inquisition by him 253 Of Elegits and Testatums into London Lancashire and other Counties 258 Extent of a Term vid. Fieri fac ' Serjeant at Mace may execute an Elegit Escape Not to be judged strictly 7 Diversities of Escapes 295 What shall be said an Escape of a Prisoner out of Execution in Debt or not 297 On the Sheriffs removing the Prisoner what favour shall a mount to an Escape or not 298 Debt lies on Escape of the Wife 303 Of Escapes in respect of the Committitur entred ibid Scire fac ' on the Escape of Bail 304 Execution served upon one that is Prisoner for Felony and then Escape 302 Of Escapes as to the Old and New Sheriff 305 306 What thing or act shall excuse the Sheriff from an Escapes 307 Escape on Cap. Utlegat and the Declaration 212 313 315 How far Erroneous Process shall excuse an Escape in the Sheriff or not 308 Where the Escape of one shall be the discharge ● of another or not 311 Escape of one in Joynt Execution 312 Variance between the Teste of the Writ and finding by the Jury in Escape 317 Laying Execution and Declaration in Escapes 328 Declaration as to the delivery of the Old Sheriff in Escape 332 Declaration on Escape in Inferiors Courts 334 Where the Sheriff shall have an Action against the Prisoner that escaped and how to declare against him 337 Escape brought after the Plaintiff in the first Action acknowledged Satisfaction 339 345 Information against the Sheriff for an Escape Pleadings on Escape Fresh persuit 340 341 Permisit ire ad Largum 325 Acknowledgment of Satisfaction pleaded 345 Stat. Limitations pleaded ibid. Supersedeas Protection pleaded 249 Nula tiel Record 346 Of Escape being pleaded in Bar 351 Escape by permission no Plea ibid. By consent of the Plaintiff a good Plea 346 Bar by voluntary Escape ill as to the Party Plaintiff 326 Discharge by the Gaoler is not a good Discharge tho' formerly adjudged otherwise ibid. Issue Evidence Verdict in Escape what good or not 352 Escape brought against Baron and Feme 356 Venue in Escape 350 Debt or Case against the Sheriff for Escape out of Execution 315 For Escape on Mean Process 314 Who shall have Action of Debt on Escape and to whom it shall be said an Escape at Election 316 Executor shall have Action on the Case against the Shereiff for Escape out of Execution or Mean Process and how to be brought 319 Action on the Case if it lies against the Under-sheriff for Escape 322 Where against the Bayliff of a Franchise 323 Not against the Sheriff or Gaolers Executors ib. Against a Serjeant in London on Mean Process 324 Where Escape shall not be a Discharge of Execution but that he may be retaken again or not 324 if one be in Prison and the Marshal die and the Prisoner Escape there is no remedy but to take him again 325 If the Prisoner Rescue himself the Party may sue the Sheriff or begin de novo upon the Judgment 327 Of Escape of Felons 359 Where Executor on Non-suit shall not pay Costs ibid. Execution Where one shall be said to be in Execution or not without prayer of the Party 203 204 Where the Court may commit in Execution tho' the Record be removed 205 How and in what Cases the Sheriff may break open an House to do Execution ibid. To what Sheriff of what place or County shall Execution be awarded 209 Execution by the Sheriff after a Supersedeas 242 243 Retorn of a Writ of Elegit 402 F. What Fees the Sheriff is to take 415 Sheriffs Fees by whom to be paid 417 Poundage allowed the Sheriff out of a Fine on Conviction on Indictment of Barretry levied as a Fieri fac ' and how and by whom allowed ibid. What security the Sheriff may take for Fees or not ibid. What remedy shall the Sheriff have for his Fees 419 VVhere and in what Action the Sheriff shall not take Fees ibid. VVhat shall be said Extortions in Sheriffs and Gaolers and how punishable 420 Consideration in Assumpsit for paying Fees 422 Fieri fac ' what 215 The Form of the Retorn of a Fieri fac ' 227 Whether a Fieri fac ' on a Judgment in the Kings Bench shall go into Wales 260 Property of the Goods not in the Plaintiff before Liberate 260 VVhat Goods and of whom shall be taken in Execution by Fieri fac 261 What Action the Sheriff shall have for the Tortious taking away of Goods after he has seised them 217 Where and what Remedy against the Sheriff for the Money to the value of the Goods taken in Execution 219 The Sheriff cannot deliver Goods in Satisfaction of the Debt 221 Sheriff sells the Goods of J. S. a Stranger on Fieri fac ibid. What is the Sheriffs best way to save themselves from seising and selling the Goods of a Stranger in Execution ibid. Where the Plaintiff shall have a new Fieri fac or not 222 Of the Sheriffs selling Goods on the Fieri fac and of the Venditioni exponas 223 What shall be a good Retorn of the Sheriff on a Fieri fac ' or not 225 The Form of the Retorn of a Fieri fac 227 Where it shall be in the Election of the Sheriff on a Fieri fac to sell a Term or deliver it in extent 231 Difference between the extent of a Term on Elegit and a sale by Fieri fac 232 What is the safest way for the Sheriff to sell a Term ibid. What Term is not extendible 233 Force The Sheriffs Office about removing it c. ibid. Fraud not to be intended except it be exresly found ibid. Fresh persuit What shall be a sufficient Fresh persuit and where upon

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 ● 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 Com●●●tur is made in the Book of the Office its Go●● 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

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

aut in manus dicti dom Regis capi aut seisiri possint Quae quidem manerium terr tenementa praedict cum pertinentiis Ego praefat Vic. die captionis hujus Inquisitionis cepi in manus dict dom Regis per Extent praed In cujus rei testimonium tam ego praefat Vic. quam Jurat praed huic Inquisition sigilla nostra alternatim apposuimus die anno loco supradict ' c. A. B. Armig. Vic. Extent on a Statute-Merchant issued out Retorn against R. the Conisor the Sheriff Retorned That the Conisor was possest of divers Goods and seised of Lands which he delivered to the Conisee and that the Conisee accepted of the Land and because the Sheriff did not Retorn That he had not any other Lands Goods or Chattels It was Adjudged Insufficient and a new Writ awarded tho' some held it was well enough in the Case of a Conisor but not in the Case of a Purchaser 1 Brownl 37. Fletcher and Robinson Note If the Conisor be Retorned dead Execution If the Conisor be dead how Execution to be shall be granted against his Executor without Scire fac ' to have Execution of his Goods so against the Heir and Tertenants of his Lands without a Scire fac ' Quaere 15 H. 7. 16. b. 2 R. 3 8. b. If the Sheriff do not Retorn the Capias or retorn Tardè or that he directed it to a Bayliff of a Franchise he shall be punished and yield Damages to the party grieved according to the Statute of de Mercatoribus W. 2. c. 39. Two Inquisitions taken at several days by several Juries upon one Statute-Merchant were Adjudged naught One was taken of the Lands and the other for the Lands and Goods 1 Brownl 38. If another had these Lands in Execution by Elegit or is in by discent in such Cases the Sheriff shall Retorn the special Matter i. e. in the first Case that he hath extended the Land of the Defendant But he cannot deliver the same to the Plaintiff for that another had the same in Extent before The Sheriff having an Extent upon a Statute may gather the Goods all into one place to be viewed and appraised by the Jurors and he is not a Trespassor Mo. 563. Attorney General vers Crocker As to what Lands c. shall be extended upon Statutes c. it does not properly belong to this Treatise which hath a respect only to the Office of Sheriff Note If Lands delivered in Execution on a Scire fac ' and New Writ of Execution where Statute-Merchant Staple or Recognizance or upon recovery of Debt and Damages are lawfully recovered or evicted out of the possession of the Conisee before his Debt and Damages be satisfied he shall have Scire fac ' c. and upon this a new Writ of Execution or Re-Extent to levy the residue per Stat. 32 H. 8. c. 1. 1 Inst 289 290 5 Rep. 87. Note also It is a Question in 2 Brownl 270. By whom King James Incorporated the Mayor Bayliffs and Burgesses of Berwick and granted to them the Execution and Retorn of all Writs Whether an Extendi facias shall be Executed by them or by the Sheriff of Northumberland Some said Berwick is English which appears by the Act of Parliament which confirms the Letters Patents and also they send Burgesses to Parliament Others said It is a part of Scotland and a Sheriffwick An Obligation there shall not be Tried in England and it is not in the County of Northumberland nor part of it By Siderfin p. 382. our Laws are not current there But yet in Jackson and Crisp's Case Local breach of Covenant at Berwick Tried at Belford in Cumberland 2 Brownl 270. 2 H. 7. 31. 26 H. 23. Retorns on Scire facias Scire facias is a Writ Judicial directed to the Sheriff c. and is usually to warn a man to come and shew Cause to the Court c. why Execution of a Judgment shall not be done But this Writ shall not be granted before the year and day past after Judgment given Conisor in a Recognizance dies Scire fac ' Retorn not agreeing with the Writ goes against his Executors Haeredes terrarum c. Sheriff Retorns That he had no Executor Scire feci W. H. filio haeredi praedict M. le Conisor This Retorn agrees not with the Writ yet it may be good 3 Rep. 15. Sir William Herbert's Case Scire fac ' on a Recognizance in Chancery against C. who was Retorned dead then a second Scire fac ' issued against the Heir of C. and against the Tenants of the Lands of C. which he had tempore Recognitionis vel postea The Sheriff Retorned C. Tertenant and omitted to Retorn any thing against the Heir This a Non-retorn of the Sheriff and not a Mis-retorn and is not aided by any of the Statutes of 32 H. 8. or 18 Eliz. or 21 Jac. of Jeofail The Heir must be summoned as well as Tertenant on a Recognizance It s Error The Tertenant without the Heir ought not to be charged therefore the Heir ought to be summoned for the Heir may have a Release to plead or other Matter to bar the Execution Also if the Heir be within Age the Parol shall demur and the Tertenant shall have advantage thereof And a new Scire fac ' issued ad Informand ' Curiam and the Retorn was That he had not any Lands in his Bailywick that descended to his Heir nor any Heir within his Bailywick and good enough tho' it had been better if he had Retorned who was Heir and that he was warned or that there was not any Heir in the said County Cro. Car. 295. Eyres and Taunton The Writ Commands the Sheriff to give The words of the Writ not answered in the Retorn Notice to the Tenants of the Land in Fee-simple and the Sheriff Retorns not That those which he had Retorned were Tenants of the Land in Fee-simple and so the words of the Writ are not answered 1 Brownlow Rep. 145 146. The Sheriff may Retorn 24 Tertenants of the whole and every Tenant may plead in discharge of himself or he may Retorn That each is Tertenant of so many Acres 2 Keb. 601. Henshaw's Case Scire fac ' to have Execution on a Recognizance The Sheriff Retorns the Conisor dead other Scire fac ' Issues against the Tertenants of the Conisor on which the Sheriff retorns a Scire feci to W. and R. Tenants and further that there was no Heir nor any other Tenants quibus Scire fac ' poterit la forme 1 Keb. 621. 2 Sanders 6. Jefferson and Moreton Scire fac ' against the Heir and Tertenants the Sheriff Retorns no Heir and the Tertenants appear la form 2 Sanders Jefferson's Case Scire fac ' to Tertenants the Sheriff retorns they are Summoned la fo●me 2 Sanders 6 8 232. Scire fac ' ad audiend ' errores must be