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
of the delivery of the Capias had the person in Custody at Galloway in the City of Dublin and the Action is brought in the County of the City Per Sanders On a Capias delivered to the Sheriff out of the County he is not bound to hold him there So upon a Latitat which is no Warrant to the Sheriff to take him but only in his Bailywick Per Cur ' This may be by Habeas corpus or Fresh Suit and being after Verdict that finds the False retorn for the retorn was Non est inventus in balliva and the Jury find that he was in balliva at the retorn of the Writ the Court will presume him legally in Custody 3 Keb. 557 561 600. Bradshaw and Andrews Plaintiff declares he had prosecuted a Capias against Chapman who was indebted to the Plaintiff in 100 l. and delivered it to the Sheriff at Newport P. and that the Sheriff postea adtunc ibidem potuisset arrestar ' the said Chapman but that the Defendant machinans to delay the Plaintiff c. arrestare the said Chapman c. adtunc ibidem abstinuit recusavit and had falsly retorned Non est inventus Defendant pleads Non culp ' and Verdict pro Quer. Per Cur ' After Verdict the Declaration is good enought and tho' potuisset arrestare without shewing how or that the Defendant was in view of Chapman and potuisset denotes a possibility and this is true if he were in the County and the Sheriff is not bound to attend his Office in every particular case yet it shall be intended such Matter was given in Evidence by which it appeared to the Jury that the Sheriff potuisset arrestare and the Declaration quod recusavit doth imply Opportunity But it was agreed to be good Cause of Demurrer Sir Tho. Jones p. 40. Fish versus Aston Sheriff of Bedford Error brought by the Sheriff upon a Judgment against him upon a Writ of Scire fac ' for an ill Retorn of a Fieri fac ' 2 Sand. 338. Actions against the Sheriff for Non-feasance For not retorning of Writs If a Capias issues against J. S. and the Sheriff doth not make any retorn upon the said Writ he is a Trespasser ab initio and false imprisonment lies against him 16 H. 7. 14. 3 H. 7. 36. 21 H. 6. 5. 5 Rep. Hoes Case Before the Stat. VV. 2. 19. Regularly for not retorning a Writ the Sheriff was amerced Quousque c. but for a False Retorn or imbesilling the Writ Action lay at Common Law Co. 2 Instit 451. Rast Entries 501 626. Presidents of Actions on this Statute This Statute prevents the Retorn of a Tarde i. e. quod breve adeo tarde venit quod praeceptum Regis exequi non potuit It 's a Question in Sir VVilliam Clarks Case if â—up utlegat Action on the Case lies against a Sheriff for not retorning a Cap. Utlegat It seems it does for the Party has loss by not retorning the Writ tho' the Queen may amerce him for his Contempt Cro. Eliz. p. 873. Sir VVill. Clark Action on the Case lies against a Sheriff for not Summons retorning a Summons 1 Leon. 146. Marsh and Astrey If a Capias be retorned out of an Inferior Inferiour Court Court to an Officer of the Court to take J. S. and he took him accordingly and does not retorn the Process he is a Trespasser ab initio for as much as he is the Officer that ought to retorn it Bayliff errand or Servant not to be punished for not retorn of the Sheriff and he is a Sheriff within his jurisdiction 2 Rol. Abr. 563. Kirk and Atkins If a Capias in Process be awarded to the Sheriff and he makes his Warrant to a Bayliff-errant who is a sworn and known Bayliff within â—he County to take him and he does it accordingly if the Sheriff does not afterwards retorn this Writ it shall make him a. Trespasser ab initio because he is but the Sheriffs Servant and for this he ought to be subject to the wrong done to the party as his Master is 20 H. 7. 13. 21 H. 7. 22. M. 14. Car. B. R. How and Stocken har But if the Bayliff-errant in that Case retorn the Body and the Warrant to the Sheriff altho' the Sheriff doth not retorn the Writ yet he is excused And if the Sheriff upon such Process makes special Bayliffs and they take the Party and the Sheriff doth not retorn the Writ altho' there is not any default in the Bayliffs yet they are Trespasser ab initio because they are but Servants to the Sheriff and by his appointment but this seems a sorry reason And I take it Girling and Allens Case is good Law For tho' the Sheriff ought to retorn his Writ otherwise his Justification in False Imprisonment is not good yet it is not so with his Servant for he has no means to inforce the Sheriff to make retorn thereof and if what he does is legal it shall not be made illegal to him by the act or default of another Crok Car. Gilling and Allen. 11 Car. B. R. Upon a Capias in Process if the Sheriff makes Where no default is in the Bayliff of a Franchise he is excused his Warrant to a Bayliff of a Franchise to execute it who does it accordingly and makes retorn of the Body and Warrant to the Sheriff and the Sheriff after does not retorn the Writ yet this shall not make the Sheriff a Trespasser ab initio because he had done his duty and no default is in him and he is the Officer of the Franchise and not of the Sheriff 8 Ed. 417. b. 21 H. 7. 22. The Court was moved that the Sheriff may Sheriff not to file the Retorn depending Action on the Case against him not be admitted to file the retorn of a Writ because action on the Case was depending against him for not retorning it because then the Action would abate and it was granted by Rolls Stiles 408. Laying the Action and Declaration for not Retorning In a Writ of Entry sur disseisin the Land lying in the County of H. if the Plaintiff deliver the Writ of Summons to the Sheriff of H. in London and after the Sheriff summons the Defendant upon the Land and after doth not retorn the Writ for which Action on the Case is brought in London where the Writ was delivered to him and the Defendant pleads he did not summon him c. upon which they are at issue this may be tried in London 2 Roll. Abr. 807. Rash and Astrey Action on the Case against an Undersheriff and declares whereas the Plaintiff had brought a Writ of Entry against H. C. and delivered it to the Undersheriff to be executed in forma Juris and gave him two shillings for the executing of it and that at such a day he caused the said H. C. to be summoned yet falso c. he did not retorn 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
it must Averment be averred that the Inferior was Insufficient As in Debt against the Dean and Chapter of Pauls for the Escape of the Bayliff of a Liberty lies not because it is not averred that the Bayliff was insufficient 2 Roll. 155 Dyer 278. Debt was brought on Escape of Holt Committed How to Deâ—lâ—â—e to the Fleet on Judgment Declaration is That the Defendant Sir Jeremy Whitchcâ—â—t was seised and granted the Office of Wardâ—n of the Fleet for three Lives to Duckenfield who was seised and by Habeas Corpus Holt was removed and by Chancery Committed to the Fleet in Execution and Duckenfield suffered the Escape the Defendant being Superior and Duckenfield insufficient The Court inclined That the Superior in this case was chargable But the Declaration being That at the time of the Lease and Commitment of the Prisoner and at the time of the Action the Lessee Duckenfield was insufficient and the Verdict is only That he was at the time of the Lease and of the Escape and Commitment but not that he Verdict not pursuant was Insufficient at the time of the Action which is the Gist of the Action and if he was Insufficient at the time of the Action no Action lieth And this is necessary to be found on VVestm 2. c. 11. and this being not found nor nec unquam postea 25 Car. 2. Plummer Whitchcot vid. Sir Tho. Jones Rep. p. 60. Mesme Case Dyer 278. Gawdâ—es Case the Escape the conclusion being so super totam materiam and the tota materia is not found c. a Venire fac ' de novo was awarded The Duke of Norfolk was adjudged to answer for his Deputy Dyer 278. The Duke of Norfolks Case was this He being Marshal of England and having Authority to make a Deputy made Gawdy his Deputy who was sworn in open Court afterwards Gawdy Licensed a Prisoner who was in Execution to go into Norfolk with a Keeper and Debt was brought against Gawdy for the Escape It was adjudged tho' he was but under Marshal and the Action brought in Middlesex supposing the Escape in Shorditch and not in the County of Surry where the Marshalsea is that the Action did well lie Debt was brought against the Dean and Chapter Noy 67. Dean and Chapter of Pauls Case of Pauls for an Escape suffered by their Bailiff of a Franchise where they had Retorn of Writs Per Cur. It lies not against them but against the Bayliff for the Writ is directed to him scilicet Ballivo Libertatis and for an ill Retorn the Bayliff always is fined The County answers for the Coroners The Gaoler of the County shall not answer Where the Rule Resp Superior hold or not Escape on Execution but the Sheriff and some hold that Respondeat Superior is only where the inferior Officer is removeable as Gaoler to the Sheriff By Wild and others on VV. 2. chap. 11. It was never intended that Superior should answer in any other Case than Account This as some say is grounded on 13 Ed. 1. c. 11. on 1 R. 2. c. 12. and Respondeat Superior was only in the Kings Case at Common Law Marshal of the B. R. is but a Branch of the Earl Marshal If Execution be directed to a Sheriff to make 2 Brownl Rep. 50. Execution within a City and the Sheriff directs his Warrant to the Bayliff who does it and after is a fugitive and not able to answer for it the Lord of the Franchise shall answer for it Where Lord of a Franchise to answer and shall be liable to answer for his Bayliff He which has the keeping of the Gaol by right or wrong shall be charged for the Escape of Prisoners And if he which has the Custody of the Gaol in Fee substitutes another under him at Will or for Life he which hath the actual 9 Rep. 98. Possession of the Office shall be charged by Action for the Escape But if they be not sufficient Respondeat Superior Having treated of Sheriffs and Under-Sheriffs I shall add some few Resolutions where Tryals shall be by the Sheriff or by the Record Of Tryals Tryal may be by the Certificate of the Sheriff By Sheriffs Certificate Trialâ— per pais 9. upon a Writ directed to him in the Case of Priviledg whether one be a Citizen or Foreigner Tryals per Pais 9. Whether one was Sheriff such a day or not Cro. Car. 421. shall be tryed per Pais If it be a Question whether the Sheriff made By the Sheriff such a Retorn or not it shall be tried by the Sheriff If whether the Under-sheriff made such a Retorn or not it shall be tried by the Under-sheriff Cro. Car. 421. By the Record If the Question be whether such an one be Sheriff or not he being made by Letters Patents of Record shall be tried by the Record As was Smiths Case Error assigned because the Venire fac ' was retorned by Sir R. S. Sheriff of Essex and in Crastino Martini 9 Car. and then the said Sir R. S. was not Sheriff but H. S. the Defendant in the Writ of Error saith that Sir R. S. was Sheriff of Essex before the Retorn of the said Writ viz. 10 No. 9 Car. by the Kings Patent prout patet de Recordo Upon Nul tiel Record pleaded at the day he produced the Letters Patents in Court whereby he was made Cro. Car. 421. Smith Case Sheriff It was moved that it ought to be tried per Pais whether he were Sheriff such a day and not by the Record of the Patent for he might be discharged before the day But per Cur. that shall not be intended unless it were by pleading shewn to the Court and so Judgment was affirmed If it come in Issue whether he that made the 8 H. 410 20. Br. Officer 33. Array be Under-sheriff or not this shall be tried by the County and not by the Officer CHAP. IV. Of Bayliffs of Hundreds their Nature Office and Oath Of Special Bayliffs and of Promises on making Special Bayliffs to save harmless from Escapes Of Bayliffs of Franchises their Nature Power Office and of Retorns by them The manner of Pleading by Bayliffs of Franchises In what Cases the Sheriff may Enter into their Liberties Of Baliffs of Fees or Guildable HAving treated of Under-sheriffs I come now to speak of Bayliffs to the Sheriff viz. Bayliffs Errant or Ballivi Intinerantes or Bayliffs of Hundreds and Special Bayliffs The making of the Bayliffs of Hundreds belongs to the Sheriff By the Statute of 14 Edw. 3. Hundreds as to the Bayliffwicks of the same are rejoyned to the Counties and all Grants made of the Bayliffwicks of Hundreds since that Statute are void and the making the Bayliffs thereof belongs to 4 Instit 267. Fortescues Casae Hundreds cannot be granted from the Sheriff the Sheriff as in Fortescues Case of Buckingham Shire 2 Car. 1. Fortescue had of late
the Sheriff must make a Warrant to the Bayliff of the Liberty to make deliverance and if he will not the Sheriff may enter and do it If the Distress be taken extra Libertates and impounded within the Sheriff upon Plaint made may presently enter and make deliverance Co. Mag. Chart. 139. If they are impounded in a Castle or House Sheriff may break Castle House or Close to make Replevin the Sheriff may break it and make Replevin and he cannot retorn he was resisted for he may take the Posse Comitat ' Cok. 2 Instit 105 194. If the Beasts be imparked in a place inclosed which had a Gate open and the Writ comes to make Replevin and the owner stands at the Gate to shoot him he may break the Close to make Replevin 2 Roll. Abr. 565. b. For necessity the Sheriff may enter a Plaint Replevin made presently before himself and after retorn it in the County Court that so the Cattle may not perish 1 Keb. 205. He may take a Plaint out of the County Court and make Replevin presently and not stay till the next County Court which is holden from Month to Month. Cattle being distrained for Rent or Damage The manner of Replevying Fesant c. The Owner of the Cattle must go to the County Clerk or some Deputies in the County for the granting out of Replevins for a Replevy to be directed to the Bayliffs to replevy them and the Party must be bound in an Obligation to the Viscount to prosecute his Action against him or them that did take the Cattle or to make retorn of the same Cattle to the Distrainer if he by Justification or Avowry do recover And if he pursue it not or be found against him then he that ook the Distress shall again have the Distress and shall have a Writ from above de Retorn ' Habend ' in such Retorn ' Habend ' case If the Goods cannot be taken by the first Replevin then issues forth an Alias then a Pluries then a Toties then a Withernam If the Sheriff retorn that he cannot replevy the Cattle because Retorn that they are Eloyned or he cannot have the view of them for the Sheriff must make enquiry if the Retorn be true and if so then he must make a Precept to the Bayliff in Withernam i. e. to take as many other Cattle and he may have an alias and a Pluries Withernam and Withernam so in infinitum but hath no other remedy in the County This sort of Replevin may be retorned out of the County into the Court of Common-Pleas by Re. fa. lo. Recordare fac ' Loquelam The Sheriff upon a Retorn ' Habend ' may enquire the Kinds of the Cattle if the Count or Avowry be uncertain 1 Leon. 193. Rigden Palmer In a Replevin no such Beast is not a good What is a good Retorn in Replevin or nor Retorn but Averia Elongata or Null ' Venit ex Parte Querentis ad monstranda Averia 2 Leon. 67. Sheriff on Replevin of Goods saith that none came to shew him the Goods it s a good Retorn 1 Keb. 184. for he cannot know the Goods without shewing of the Party If J. S. sue a Replevin to the Sheriff and Sheriff makes Replevin of a Stranger he is a Trespasser shews him the Cattle of J. N. and saith they are his Cattle and he makes Replevin of the Cattle he is a Trespasser to J. N. and the Sheriff may have an Action of Trespass against J. S. for his false Information For the Sheriff at his Peril must take notice whose Cattle they be but if there be any fraud in the matter he may aver that 3 H. 7. 14 H. 4. 1 Brownl 211. Buckwood and Beal If a man have Judgment to have a Retorn upon a Nonsuit in a Replevin and the Plaintiff brings a second Deliverance this is a Supersedeas of the Retorn yet the Defendant in the Replevin shall have a Writ to enquire of Damages but if he have Judgment in the second Deliverance then it shal be retorned Irreplevisable and he shall recover Damages Hill 43 Eliz. D. C. Goldsborough p. 185. If the Sheriff doth not his Office in such Cases an Attachment to the Coroners lies against him Reg. Orig. 81. a. As to the Sheriffs taking Pledges vid. sab titulo Pledges infra If the Sheriff retorn fugavit in another County or that the Bayliff of the Liberty retorns elongata or that he cannot have the view in all these Cases a Withernam shall be awarded 1 Rep. Withernam 145. b. Ann Mayowes Case The Writ of Withernam ought to rehearse the Retorn of the Sheriff At Common Law a man might have been non-suited in Replevin and have had new ones in infinitum But West 2. c. 2. restrains the Plaintiff for having any more Replevin after No more Replevin after Non-suit but Second Deliverance Non-suit but gives the Writ of Second Deliverance Cok. 2 Inst. 240. This Writ is a Supersedeas in Law to the Sheriff that he make no Retorn to the Defendant on the former Non-suit Cok. 2 Inst 341. This is taken away as to Avowry for Rents by 2 Stat. K. Charles 2. In a Replevin if the Process continue until a Pluries issue out of Chancery and the Sheriff retorn Retorn that the Defendant claims Property upon this in B. that the Defendant claims property altho' no day is expresly given by this Writ to the Parties but to the Sheriff only to excuse his Contempt for not serving the Process before yet upon the retorn of this Writ the Parties may appear and Plead viz. The Plaintiff may declare and the Defendant may plead to it and it shall not be erroneous for there is no other Writ to be served after this Writ therefore if the Parties might not plead upon this it would be a great mischief So if the Pluries be retorned Tres Michaelis and nothing is done till Paschoe afterwards yet at this Term the Parties may appear and plead if they will 1 Rol. Abr. 581. Gawen and Ludlow Where the Defendant when the Sheriff comes Where in a Replevin the claim of Property by the Defendnat shall hinder the delivery of the Goods by the Sheriff to make Replevin claims Property the Sheriff cannot proceed for it is a Rule in Law the Property ought to be tried by Writ therefore in that Case where the Trial is by Plaint the Plaintiff may have a Writ de Proprietate Probanda directed to the Sheriff to try the Property and if it be found for the Plaintiff the Sheriff is to make deliverance if for the Defendant then he can no further proceed Cok. Litt. 145. b. And to try the Propersy the Sheriff ought to take with him Custod ' Placit ' Coron ' Dier 173. In Replevin the Plaintiff claims Property and thereupon a Writ issues to the Sheriff to try the value 2 Keb. 550.
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
he may abate it 29. Ed. 3. 21. b. What is Presentable in a Franchise as default In what cases what is presentable in a Franchise is presentable in a Tourn or not in Repairing a Cawsey is not presentable in the Tourn because out of his Jurisdiction being in the Franchise But if the default be in the Lord for not Repairing it this may be presented in the Tourn because the Franchise was first derived out of the Tourn 10 H. 4. 4. 17 Jac. B. R. Loader and Samuell Where and what Inquisitions or Presentments taken in the Sheriffs Tourn shall be presented to the Justices of Peace and how they shall proceed upon them By the Statute of 1 Ed. 4. c. 2. the Presentments shall be by the Sheriff at the next Quarter-Sessions and there shall be Inrolled and upon this they assess the Fines and Amerciaments and shall make Process to levy it to the use of the Sheriff Jones 300. Griffith and Bedle. Sheriffs Tourn when and where to be kept By the Statute of 21 Ed. 3. c. 15. the Tourn ought to be kept infra mensem post Festum Paschae post Festum Sancti Michaelis 31 Ed. 3. c. 13. Who shall be amerced for not coming to the Sheriffs Tourn or not Not a Baron not Tenants in Ancient Demesn I shall cite a Case or two as to Pleading in Actions about Americaments for further Explication Trespass for taking a Bullock Defendant Justifieth because at the Sheriffs Tourn held infra mensem Paschae viz. 18 Apr. the Plaintiff was presented for not appearing at the said Tourn being debito modo summonitus and Amerced by the Jury which was affeered by four of the Jury at 40 s. And after at the next Sessions of the Peace viz. 22 Apr. it was certified and ratified by such Justices of the Peace whereupon the Steward made a Warrant to him to levy it and so sold it The Plaintiff demurrs 1. Because the Defendant doth not alledge that the Tourn was kept infra mensom post Festum Paschae but infra mensem Paschae which may as well be before Easter as after 21 Ed. 3. 15. 2. Because the Americament is alledged to be made by the Jury and affeered by four of the Jurors where it always ought to beassessed by the Court for its a Judicial Act and shall be affeered by the Affeerers appointed Lib. Intr. 119. Affeerment 3. That the Amerciament was levied by the Defendant as Bayliff by Warrant from the Steward of the Court where by the Statute of 1 Ed. 4 it is appointed that no Fine or Americament in the Tourn shall be levied unless it be certified at the next Sessions of the Peace by Indenture and Enrolled and by Process made from the Justices to the Sheriff c. Griffith and Bedle Cro. Car. 275. Judgment for the Plaintiff In Trespass the Defendant Justifies for an Amerciament set in the Sheriffs Tourn and Exceptions were taken to it 1. Because he Justified by Praecipe to him lawfully granted and saith not at what place 2. He prescribes for a Tourn to be held and doth not shew any or what Estate And by Hutton a Prescription for a Tourn Prescription by a Que Estate or an Hundred Court by a que Estate is naught because it lies in Grant and is not manureable but he ought to have said That the King and all they that were seised of the said Hundred have had and from the time c. And per Cur. Except he shewed before whom the Tourn was held it was naught and it ought to be holden before the Sheriff 1 Brownl 198. Darney and Hardington Oath of Allegiance to be taken every Sheriffs Tourn C. Magna Charta 73 147 148. Hundred Courts Vid. suprà tit Bayliffs It is derived out of the County Court for the Ease of the People as the Leet was out of the Tourn The Style is thus Curia E. C. Mil ' Hundredi sui de B. in Comitat ' B. tent ' c. coram A. B. Seneschallo ibid ' Vide pluis 4 Inst 267. And the Forms of proceedings in this Court Vide Wilkinson CHAP. VI. Of the Original Process in Real Actions and Personal Actions with the Retorns as Summons Attachment c. Of Mean Process what Arrest by the Sheriff or Bayliff shall be good or not Of the Bayliffs shewing his Warrant What Arrest is good as to the time of the Arrest before or after the Retorn in respect of the persons Arrested who are priviledged or protected from Arrests or not in regard of Persons or Courts where Arrest shall be Lawful or not in respect of the Warrant Of Warrants to Special Bayliffs or known Bayliffs of Pledges de Prosequendo Of Original Process LET it be observed that regularly Writsare directed to the Sheriffs or Coroners but in special Cases to the Plaintiff himself or to others to the Party as a Prohibition ne exeat Regnum to others as to Judges Temporal and Ecclesiastical or Civil to Serjeant at Armes to Mayor and Bayliffs and where the Sheriff is Judge of the Court a Writ which should have been directed to him shall be directed to the Serjeants of the Mace i. e. where there are such Serjeants Pract. Reg. 345. The Original Process in Real Actions is a Summons so in all Personal Actions except in Trespass and in that there is no Summons but Attachment and Distress in a Real Action the Sheriff shall summons the Tenant upon the Land in demand but in Personal Actions the Sheriff must summons the Defendant by his Person And in a Praecipe there ought to be two Summoners i. e. two good substantial Neighbours If the Tenant be sufficient he must retorn two common Pledges for the Plaintiff and then the names of the Summoners thus Respons ' A. B. Vic' Comit ' infra scripi ' plegij de prosequendo John Doe Rich. Roe Summonitores infra nominati J. S. the Defendant VV. Browne J. Cook But if the Tenant or Defendant be insufficient then the Retorn must be thus Respons ' A. B. Vic' Com' infra script ' plegij de prosequend ' J. Doe R. Roe Infra nominatus J. S. nihil habet in Balliva mea per quod or unde summoniri potest nec est invent ' in eadem If it be in any Real Action or in any Action of Annuity Debt Covenant or other Writ where Summons lieth If in Trespass it is thus Infra nominatus C. D. nihil habet in Balliva mea per qd ' Attachiari possit nec est invent ' in Balliva mea If two Defendants name them if more name the two caeteri Defendantes infra nominati nihil habent If upon Distress then thus Infra nominat ' A. B. nihil habet in Terris Tenementis Hereditamentis infra scriptis per quod ipsum distringere possum If the Sheriff will delay the execution of the Writ he may return it in two manners 1. Infra nominat ' J. S. non invenit
Anders 157. The Sheriff is Judge of the Sufficiency and it s no plea to say he took Bonds of Insvfficient persons Mo. Rep. 118. Cotton and Vale. The party that gives the Bond must be in the Ward of the Sheriff So is Beaufage's Case vid. 10 Rep. 99. b. Winch. p. 20 50. Empson and Bathurst So Condition to Appear the Defendant on The Bond must be taken of the person who is in Lawful Custody Oyer pleads the Statute of 23 H. 6. that the Plaintiff Bayliff of St Edmondsbury Imprisoned the Defendant without Warrant and thereon took the Bond. Per Cur ' Its an ill Plea for the Bond must be taken of the person in Custody i. e. Lawful Custody and this Bond is voidable by Duress at Common Law 3 Keb. 756 760. Lord Suffolk and Birket Sir Thomas Jones 76. mesme Case The Sheriff upon a Fieri fac ' took Bond of the Defendant to pay the Money in Court at the Retorn of the Writ this is good and not void by Stat. 23 H. 6. Vid. Dalton 443. 10 Rep. 99. Beaufage's Case Colore Officii Colore Officii is taken in malam partem No What it is and to what it extends or not Sheriff shall take Obligation contrary to the Statute Colore Officii As one in Execution escapes and is retaken and then a Bond is made for his Enlargement this is Colore Officii But if a Sheriff take a Bond for a true Debt this is good because it s not Colore Officii 2 Leon. 118. Philips and Stone Debt on Obligation taken by the Plaintiff Sheriff of the Defendant his Clerk upon Condition to pay the King's silver into the Exchequer within fourteen days after he received it The Defendant pleads Stat. 23 H. 6. and averred it was taken Colore Officii And upon Demurrer it was adjudged for the Plaintiff for the Statute doth not intend such Obligation taken of them which are not to appear nor in Custody The Plea that the Bond is taken Colore Officii will not avoid a Bond taken of the party to do what he ought Mo. n. 685. Cartwright and Dalesworth 3 Keb. 790. A Bond for Tuition of a Child as Curator Curator Tutor and to give Account to the Ordinary is but a voluntary undertaking of the Guardian and so not within the Stat. 23 H. 6. and its good at Common Law notwithstanding 3 Inst 149. 3 Keb. 671. Note If the one part of the Condition be The whole Bond is void if against this Statute in any point according to the Statute and the other not all shall be void for the Statute extends to the whole Bond Dive and Manningham Pl. 68. b. Palmer Rep. 378. Noel and Cooper If the Sheriff take Bond for a Point against this Law and also for a due Debt the whole Bond is void Hob. p. 14. Note The Warden of the Fleet and the Kings Palace at Westminster are excepted out of this Act. Of Pleadings Regula This is a particular private Law and ought to be pleaded Regulâ Condition was That J. S. appeared in B. R. c. The Defendant demands Oyer and so demurred because it is not taken by the Sheriff in the name of his Office Sed non allocatur the Statute being not pleaded as Whelpdale's Case No Exception can be taken against it for it may be a just Debt 1 Sand. 155. Dive and Manningham's Case Parker and Wells Siderfin 24. Allen and Robinson Hob. 13. contr 3 Keb. 320 361. Oakes and Ceel A Condition to appear in B. R. according to Custom at the suit of M. On Oyer the Defendant pleads there is no such Custom in B. R. ad the Plaintiff hath alledged to appear to an etiam billae and so the Obligation void The At etiam Billae Plaintiff demurrs and Judgment pro Querente because the Statute of 23 H. 6. is not pleaded being a particular Law But it might be pleaded the Bond was by Duress being in another manner Duress than the Statute allows and that Statute makes the Bond void for the whole 2 Keb. 620. 3 Keb. 60 181. Forth and Walker If the Statute be misrecited it may be Demurred to Siderfin 356. Holbay and Bray 2 Keb. 278. Pench and Woodnoth Quare How the Court will take notice of it by the printed Book or by the Record or otherwise Regula To plead an Appearance and not to say Prout patet per Recordum is naught Regulâ So Corbet's Case On the Sheriffs Bond it must be averred a Record in the Rejoynder as well as in the Bar 1 Brownl 91. Andrews and Robins Cro. El. 466. Corbet's Case 2 Keb. 250 278. Knight and Pitt Condition was If he appeared at Westminster such a day to answer c. The Defendant pleads that before the Day of the Retorn of the Writ the Term was adjourned to Hartford and that there he appeared The Plaintiff demurs Per Cur ' He ought to conclude his Plea prout patet per Recordum for tho' he appeareth yet if his Appearance be not entred of Record he forfeits his Obligation and he ought to Conclude his Plea so otherwise the Plaintiff cannot answer thereunto as to say Nultiel Record Cro. El. 466. Corbet and Cooke Debt upon a Sheriffs Bond for Appearance in B. R. the Defendant pleads comparuit ad diem the Plaintiff denies it and by Mittimus out of the Chancery it was brought into the Common Pleas and Judgment there given Palmer and Steward cited Cro. Car. 297. in Lutterel and Leas's Case Tho' the Bond is made void by Act of Parliament Non est factum not to be pleaded yet the party may not plead Non est factum but must plead the Special Matter and take advantage of the Act of Parliament 5 Rep. 117. Whelpdale's Case In Debt upon Bond the Defendant pleads the Traverse That he was in Prison tempore confectionis not good Statute of 23 H. 6. and shews that W. was in Execution and that the Bond was made for his Deliverance against the Statute The Plaintiff Replies That tempore confectionis of the said Bond W. was at Large absque hoc that he was in Prison tempore confectionis c. the Traverse is not good For one may be in Prison and make a promise to make a Bond for which he is Enlarged and within an Hour after he makes the Bond the same is within the Statute it ought to have been absque hoc that it was made pro deliberatione 2 Leon. 107. Bowes and Vernon 2 Keb. 512. Die and Adams Debt on Bond dated 25 Sept. the Defendant Plead primo deliberat ' after the Arrest pleads a Capias ad satisfaciend ' was awarded against B. who was taken on it the 30th of Sept. and that the Obligation was made for the Enlargement of B. The Plaintiff demurs and had Judgment because it appears the Bond was made before the Arrest and so could not be avoided by 23 H. 6. but
Remedy And his pleading in an Action brought against him Note After the Statute of 23 H. 6. the Sheriff cannot make a Special Retorn in a Capias but only a Cepi Corpus or Non est inventus And the Statute tho' it compells him to take Bail yet it does not alter the Retorn The design of the Statute is to provide against the Extortion of Sheriffs being obliged to Retorn Cepi paratum habeo and yet to lett the Defendant at large and therefore there is no reason he should be Charged for not having the Body at the Day The Retorn of a Paratum habeo is in effect no more than that he hath the Body ready to bring into Court when the Court shall Command him And for his False Retorn of Paratum habeo he is amerceable to the Court till he do bring in the Body and the Common Practice is so but that is nothing to the party and no Action lies against him by the party And therefore vide Page and Tulses's Case Now as to the sheriffs taking Insufficient bail and refusing to take Sufficient bail the Law stands thus If the Sheriff refuse to take Reasonable Bail an Action on the Case lies against him Siderfin p. 23. If the Sheriff refuse to take Bail he is liable to an Action of False Imprisonment If the Sheriff take Insufficient Bail yet no Action lies against him by the party for he is Judge of the Bail Vide supra Therefore In Action on the Case against the Sheriff for Escape the Defendant pleads the Statute of 23 H. 6. that he Lett H. to Bail and took Reasonable Sureties A. and B. persons having sufficient within the County The Plaintiff Replies Absque hoc that he took Bail having sufficient within the County The Defendant Demurrs and Judgment pro Defendente Mod. Rep. 227. Ellis and Yarborough Where Trespass on the Case was brought Sheriff pleads Stat. 13 H. 6. against the Sheriffs of Middlesex for suffering an Escape and Retorning Cepi corpus and Paratum habeo which was false The Defendants plead That the party Arrested put in J. B. and J. C. Sureties and plead the Statute of 23 H. 6. and they took Bond according to the Statute and so let him Escape Per Cur ' The Plea is good for the Reasons aforesaid So in Bowles and Lassell's Case if the Sheriff Retorn a Languidus in Prisona having taken Bail secundum Stat ' it was adjudged that tho' the Defendant was at Large yet no Action lay against the Sheriff All this must be understood of Mean process for else this would be to frustrate the Statute of 23 H. 6. Cro. El. 852. Bowles and Lassels But Note Then it must appear to the Court on the Record that it is on the Statute of 23 H. 6. and not a Retorn at Common Law Not Guilty And the Sheriff may in such case plead Not guilty Siderfin 22. Allen and Robinson But if the Sheriff demurrs to the Declaration If the Sheriff demurr al' Narr ' the Action is against him then the Action is against him For the Declaration shall be taken to be true upon the Demurrer For the Statute is private and the Court will not take notice of it unless it be pleaded But if the Defendant had pleaded this specially or if he had pleaded Non culp ' he might have had advantage of the Statute and oufted the Plaintiff of his Action Cro. El. 624. Barton and Aldworth Siderf Parker and Welby Mod. Rep. 244. 244. Page and Tulse p. 33. Franklyn and Andrews Mo. n. 427. Cro. El. 460. Gardner and Langton By these Words in the Statute That if the Sheriff Retorn a Cepi Corpus he shall be chargeable to have the Body at the Day of the Retorn c. it is intended only that he may be Amerced to the King for not having the Body at the Day 2 Sand. 60. Postern and Hanson An Action on the Case against the sheriff for not taking Reasonable Sureties not having sufficient Estates in the said County and Retorning Cepi corpus and yet not having the Bodies ready by the day lies not forhe is compellable to lett to Bail and if he have not the Body he shall be amerced And because he shall be amerced the Statute gives him Advice to take sufficient Sureties for his own Indempnity 2 Sand. 59. Postern and Hanson In Action on the Case for taking Insufficient Sheriff pleads He had taken sufficient Bail he need not say where nor Traverse the Intent bail The Defendant pleads he had taken sufficient Security He need not say where nor need he traverse the Intent to deceive the Plaintiff of his Debt For it is not issuable at what place the Security was taken and therefore need not be shewed and the Intent is not Traversable and had the Defendant pleaded so it had been ill Siderfin 96. Bentley and Hore Action on the Case against a Sheriff for taking How the Sheriff is to plead on 23 H. 6. c. 10 Insufficient bail The Defendant pleads the Statute of 23 H. 6. c. 10. The Plaintiff Demurs to the Bar because the Sheriff had not alledged that he had not dismissed one B. whom he had taken by sufficient Mainpernors but only alledgeth this by way of Implication and not positively 2 Sand. 58. Postern and Hanson Of Bail Bonds being Discharged or Assigned In Debt on Sheriffs Bond the Principal being Where the Bail Bond shall be discharged paying the Americaments and where not in Prison may be admitted to plead discharging the Amerciaments and this is the course of the Court where the Prosecution is fresh But where the Defendant in the Original Action viz. the Principal is become insolvent Per Cur ' The Bail Bond is the only remedy and they will not discharge that on Ordinary Rules In this Case North prayed the Continuance of Process on the Bail Bond in regard since the default of the Appearance of Fludd the Principal he is become Insolvent by suffering several Judgments But Jones said That the Bail appeared on the very day of the Retorn and the default is the Plaintiffs own and the Bond not above an year old And per Cur ' paying the Amerciaments and Costs the Bail were discharged and the Principal admitted to plead 2 Keb. 545 553. Fludd and Williams The Surety paid the Debt and he sued the Bail Bond sued by the Surety who paid the Debt and the Coroners took a New Bond. Bail Bond assigned by the Sheriff on which a Writ being directed to the Coroners they took a New Bond and assigned it and they prayed the Money out of the Coroners hands for the Surety Per Cur ' The Coroner cannot discharge his Bail Bond no more than the Sheriff and they ordered the Principal Debt to be paid 2 Keb. 287 400. Foster's Case A Bail Bond was discharged upon Motion Discharged by payment of the Money before the Retorn of the Writ Assigument of the Bail
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
may be on the Essoyn-day A Writ Retorn may be on the Essoyn Day Appearance shall not abate if the Retorn be quarto die post If a man be bound to appear the first day in Term in Court he may appear the first day of the Essoyn and then have his Appearance recorded and this is good 2 Bulst Bedoe and Piper Note Where the Writ or Process is directed to the Bishop there the Bishop is to make Retorn thereof And so where the Writ is directed to other Persons as Coroners they are to make Retorns General Rules of Retorns Deputies are allowed in Ministerial Offices But all Retorns made by them are to be made in the Name of the Principal Officer 3 Bulst 78. The Sheriff must retorn true and not contrary to the Record if he do he falsifies all his Proceedings L. brought Trespass against J. G. Widow hanging the Suit she takes D. to Husband Judgment was against J. G. and a Writ was directed to the Sheriff qd ' caperet J. praedictam per nomen J. G. ad satisfaciend ' c. the Sheriff cannot now retorn that she was married Crok Jac. 323. Doley and White The Retorn must not be contrary to the former Retorn If the Sheriff retorn upon the Venire Retorn of Jurors fac ' 12 Jurors upon the Distringas he may not retorn one had nothing for this is against his former retorn 19 H. 6. 38. For if he had at first and alien since yet it is chargeable with Issues But if the Land be recovered by Eign Title in the mean time he may retorn it with this Conclusion Et issint nihil habet Id. ibidem So if he had Land in the right of his Wife and she is dead in the mean time The Sheriff is to put his Name to every Retorn made by him or the Retorn is to be void By the Statute of York 12 Ed. 2. c. 5. 1 Bulst 73. The Statute appoints that he who Retorns shall add his Name to the Retorn and it is sufficient if it be his Christian Name and Sirname and the name of his Office is not requisite Crok Car. 189. Bethell and Parry Plowd 63. tho' in Scrogs Case More 548. saith the Name of Office must be subscribed as well as by the Sheriffs Christian and Sirname but by Coroners only the name of Office If the Sheriff arrest one upon Mean Process and doth not Retorn the VVrit he is a Trespassor and therefore Stiles Pract. Reg. 276. is not Law where he saith it is not requisite that the Sheriff in making a Retorn should insert his Title or name of Dignity or Christian or Sirname but only his Name of Office Before the Statute of York 12 Ed. 2. c. 5. Rast Ret. of Sheriffs fol. 345. no Name was used to be put to the Retorn of the Writ by the Sheriff nor any other Minister or Officer which was inconvenient upon which complaint was made to this Parliament and so remedied The Retorn of the Venire fac ' was executio istius Brevis patet quodam panello huic Brevi annex ' Tho. H. nuper Vicecom ' and then the now Sheriff added these words istud Breve sic indorsat ' fuit mihi J. R. Vic' deliberat ' per Tho. H. Mil ' nuper Vic' in executione Officij sui it 's sufficient for T. H. ought to put his Name to the Retorn For nuper Vic' shews he was not then Sheriff he ought to have put his Name to it T. H. and then the new Sheriff ought to subscribe istud Breve sic indorsat ' c. Plowd 63. 5 Rep. 41. 2 Rol. Rep. 209. Bethers and Parry Vide infra Cro. Car. 289. contra Retorns must be made according to the Ancient Course and according to Presidents As Waste was assigned in S. the Retorn must not be qd ' accessit ad S. but ad locum vastatum vide infra 27 H. 8. Rol. 2. Dalt 162 163. So a Retorn of non inveni partem for non est inventus it 's Error and not amendable 9 H. 6. fo 12. Mercer was outlawed at the suit of H. it was moved to avoid the Outlawry because the Sheriff retorned the Exigent on the back of the Writ thus viz. superdictus Mercer where it ought to be infra nominatus Mercer for nothing was written above but within But by all the Justices the Retorn was good So if he had writ the Retorn on the inner side of the Writ Dalt 164. Surplusage is no hurt to the retorn of a Writ as in Elegit and the Sheriff retorns that to be executed the extent of the Church of St. Andrews alias dict' St. Edes and the true name is Andrews yet good Winch. p. 27. In Scire fac ' retornable in B. If the Sheriff retorn Scire fac ' c. qd ' sit coram vobis ad faciend ' qd ' Breve requirit Altho' vobis had relation to the King where the garnishment ought to be coram Justiciariis yet good for those words ad faciend ' qd ' Breve requirit comprehend all 29 Ed. 3. 33. adjudged every Retorn must exactly answer the Writ Statutes aid Misretorns and insufficient Retorns but not where there is not any Retorn Cro. Car. 587. Becknam None can make the Retorn of a Writ but such a person who at the time of the Retorn remains an Officer to the Court Vide infra Retorn of a VVrit is not Traversable vide infra Or against the Retorn of the Sheriff there is not any Traverse Averment or Answer Per Maynard in Searl and Longs Case Mod. Feigned Retorns mischievous Rep. 248. It 's a great abuse in Officers to retorn such feigned name the first cause of which was the ignorance of the Sheriffs who being to make Retorns and looking into the President Books for the Form and finding John Doe and Richard Roe put for Examples made their Retorns accordingly and took no care for true Summoners and true Manucaptors And he cited a Cause Judgment was entred in B. in a Plea of Quare Impedit upon non-appearance to the Grand Distress but there the Party was summoned and true Summoners retorned Upon Non-appearance an Attachment issued and real Summoners retorned upon that but upon the Distress it was retorned that the Defendants districti fuere per Bona Catalla Manucapt ' per J. Doe R. Roe and for that cause the Judgment was vacated Note When the Grand Distress is awarded it Grand Distress is that the Sheriff is commanded to seise the thing in question If the Defendant be taken then at the retorn Rule to the Sheriff to retorn his Writ of the Writ the Plaintiffs Attorney at the day of the Retorn of the Writ may give a Rule at the Clerk of the Rules for the Sheriff to retorn his Writ or if he go out of Office then a Distringas to the new Sheriff to distrain the old Sheriff to retorn his Writ But if the
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
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 retâ—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 Fauâ— 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 valentiaâ— 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
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
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
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
not be Imprisoned nor Indicted for the act of the Under-sheriff Latch p. 187. Laycock's Case Yet quaere of the Principal Case vid. supra sub tit Under-sheriffs Cap. ad satisfaciend ' is awarded to the Sheriff Action against the Bayliff of a Franchise and not against the Sheriff of Berkshire to arrest J. S. who was then in the Custody of the Mayor and Burgesses of Windsor and he awarded a Warrant to the Mayor c. to take him who did so and after let him escape Action of Debt for this Escape lies against them not against the Sheriff And the like Law of a Bayliff of a Franchise Action of Debt is maintainable against a Not against the Sheriffs or Gaolers Executors Gaoler or Sheriff for escape out of Execution But it doth not lye against his Executors or Administrators Vide supra yet with this difference Dyer 271 322. Where the Sheriff is chargable in his Life-time Difference between a Tort and Levying Money for a Personal Tort or Misfeasanze there his Person is only chargable actio moritur cum persona But where he is chargable for levying Money on a Fieri fac ' and not paying it over there if he dies his Executors are chargable It 's a Duty Cro. Car. 539. Perkinson and Cullyford A Prisoner taken on mean Process upon plaint Against a Serjeant in London before the Sheriff in London is in Custody of a Serjeant and escapes the Action shall be brought against the Serjeant in this Case Siderf p. 318. Action upon the Case against Defendant being Sheriff of London on mean Process and after Issue and Trial by Nisiprius and before the day in Banco one of them dies tho they are reputed one Officer yet they are 2 distinct persons and the Suit shall proceed against the other Hard. 161. Harris versus Phillips and Briggs Where Execution shall be after Execution upon Escape or where an Escape shall not be a Discharge of Execution but that he may be taken again Note If the party negligently Escape the party and the Sheriff may take him again but if voluntarily the only the party may take him again but not the Sheriff but if the Sheriff let him go by the consent of the Plaintiff then neither can take him 2 Keb. 206. Alenson and Butler But tho the party or 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 2 Keb. 616. Wades Case In case of Sheriffs death If one in Execution on Ca. Sa. escape of his ownwrong yet the Plaintiff cannot have other Execution Hob p. 6. If a Man taken in Execution by a Capias be put in Prison and after escapes and after the Sheriff dies a new Capias lies against him otherwise the Plaintiff would be without Remedy But if a Man be in Prison and the Marshall die and then the Prisoner escapes there is no remedy but to take him again for if after the death of the old Sheriff and before another is made Sheriff a Prisoner go at large this is no escape for he is in Custody of the Law and may be retaken in Execution at any time Hob. p. 60. 41. Ass 15. Mod. Rep. 14. 3 Rep. Westbies Case On voluntary escape the party doth not lose his Interest but may take him again and if the Sheriff die he may have a new Execution if he will So the Plaintiff Eexcutor brought a Sci. fac on a Plea of permisit ire ad Larg how con strued Judgment in Debt for the Testator against the Defendant Quare Execution habere non debet Defendant pleads he was taken in Execution per Ca. Sa. upon this Judgment and committed to the Flâ—et and that the Warden permitted him ire 〈◊〉 Plaintiff Demurs and judgment giv◠〈◊〉 querente and he may have new Execution against the Defendant who escapes out of Prison by 3 Justices cont ' Vaughan And Alanson and Butler is full to the Point Sir Thomas Jones p. 21. Allen and Winter 2d Point Whether permisit ire ad Larg shall be implyed negligenter or voluntarie and it seems ' its not voluntary because the Plea shall be most strongly taken against the pleader If A. be taken on Execution at the Suit of B. and voluntarily Escape by the assent of the Sheriff and after the Sheriff retakes him and keeps him in Prisoâ— he shall be in Execution to B. because tho B. may bring an Action against the Sheriff on this voluntary Escape yet this is at his Election for the party in Execution of his own wrong shall not put B. to his Action against the Sheriff against his will and it may be that the Sheriff is not able to make him recompence 10. Car. B. Trevillian and the Lord Roberts Case Siderf ' p. 350 Allanson and Butler So it is said tho' the Gaoler be Liable to an Action of Trespass for the retaking yet the Prisoner is in Execution and the Reason given is The Body is a Pledge and the Execution must be effectual 3 Keb. 453 463. James and Pierce Uoluntary Escape suffered only to gain Fees ought not to be countenanced nor is no Plea in Bar that the party was intended to reâ—orn to Prison again at his day and the Plaintiff has an Interest which is not discharged by the Escape But my Lord Hobart on a Tryal at Guild-Hall in the Sheriff of Essex's Case was of another Opinion the Case was The Prisoner having been in Execution was willingly let go out of Prison by the Gaoler and then came into the Gaol again and so remained in the Gaol till the time of another Sheriff and then Escaped and an Action of Debt was brought against the Sheriff This is since denyed for Law By voluntary Escape suffered by the Gaoler the Execution gone and he directed the Jury that the Sheriff was not answerable to this Action for when he was suffered by the Gaoler voluntarily to go abroad the Execution was utterly discharged so as he could not lawfully be taken again nor adjudged in Execution by Law tho the party would yield himself to it or the Creditor should allow it 2 Leon. p. 169. 162. If a Prisoner in Execution escape with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff shall never resort to him that escapes but shall hold himself to the Gaoler for his remedy Aliter if he escape voluntary or of his own wrong prout supra But the Law is now held otherwise against Ridgways Case Dr. Drurys Case and the Earl of Essex Case But ' its otherwise in case of a Rescous Hob. p. 202. Sheriff of Essex Case 2 Leon. 117. 162. Phillips and Stone In Sci. fac to have Execution on a Judgment Permissive Escape in Debt Defendant pleads that at another time the Plaintiff had sued Execution by Capias ad satisfaciend and the Defendant was taken in
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
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
of the Burgesses there have made choise and election of and of to be Burgesses of our said Borough of Warwick to attend at the Parliament according to the Tenor of the said Warrant to me directed in that behalf In Witness whereof I have to these Presents set our Common Seal of our said Borough the day and year first above written The Sheriffs Retorn of the Writ for Electing a Parliament Man Knight of the Shire VIrtute istius Brevis mihi direct Eligi feci duos milites Gladiis cinctos magis idoneos discret de Commitat meo praed videl W. F. O. S. qui quidem milites plen sufficien potestat pro se Comunitat Com. praed habeant ad faciend consentiend iis quae ad diem locum infra content de Communi Consilio Regni Regis Angliae ordinari contingerit Et praed W. F. J. S. Manucapt sunt per J. P. W. B. R. D. R. N. ad essend ad Parliamentum Domini Regis apud Westm ad diem infracontent ad faciend prout istud Breve in se exigit requirit Feci etiam praeceptum to the Mayor or Bayliff de G. qd de Burgo de G. Elegi fecerint duos Burgenses de discret magis sufficien qd sint ad Parliamentum dicti Domini Regis ad diem infra content ad faciend consentiend ut praed est qui quidem Mayor c. sic mihi respond qd Eligi fecer de praed W. Burgo de G. duos Burgenses discret ' magis sufficien ad essend ad Parliamentum praed viz. S. W. C. R. W. R. O. Armig. Vic. The Sheriffs Office about the Sessions of the Peace As to the Precept of the Sheriff for Summoning the Sessions of the Peace vid. Lamb. 367. Impress 1599. it ought to bear date under the names of two Justices of Peace at least And not of the Custos Rotulorum alone It must be to Summon 24 Jurors and to command all Constables Bayliffs or Coroners to give their attendance upon the Justices And the Form of the Retorn of the Summons vide Dalt 198. In some Cases the Sheriff is to joyn with the Justices as in Case of Riots c. 13 H. 4. c. 7. He is to attend and assist the Justices of the Peace to Arrest such as shall make any forceable Entries or Detainer 15 R. 2. c. 1. He is to Summon 24 to be of the Grand Inquest As to other sorts of Precepts which the Sheriff is to execute in respect of Commissioners of Sewers Commissioners of Bankrupts and several other Acts of Parliament vid. Dalton And the Acts themselves all the Duties of his Office being so various and especially in many late Acts its best to refer to the Acts themselves which no Gentleman ought to be without CHAP. XXIX Customs of London Of their Officer Prison Court of the Sheriffs Court How to lay the Custom of the Sheriffs Court The difference between the Mayors Court and the Sheriffs Court Sheriffs Court when kept The manner of entring Actions in the Country Customs of London as to Officers Courts Process and Prisons c. Vide 9 Rep. 62 63 67. tit Arrest vid. Calthrop BOth the Sheriffs of London are in Law but one Sheriff and the one is not of London and the other of Middlesex as is vulgarly supposed Hob. p. 70 Lamb and Wiseman And the Sheriff of London is known in Law to be two persons therefore if one Sheriff of London make his Retorn without his Fellow this cannot be holpen by Jeofail it being as no Retorn at all or a Retorn without the Sheriffs Name subscribed And London had no Sheriffs in the 13th of Ed. 1. 1 Leon. 284. In London the Mayor and Comminalty have the Office of Sheriff of London and Middlesex and Two Sheriffs are yearly chosen 3 Rep. Westby's Case Upon a Capias ad satisfaciendum to the Sheriff of Middlesex to take J. S. if the Sheriff take him and put him in Newgate which is the Common Prison for London and Middlesex and after another Writ of Execution comes to the Sheriff of London altho' the Sheriffs of London are also Sheriffs of Middlesex and Newgate where the Prison is is the Prison for both Newgate a Prison for both London and Middlesex Counties yet the Prisoner shall not be said to be in Execution upon this New Writ in London nor may the Sheriff of London serve it upon him because he is in another County For when the Cemmitment is to Newgate by Commitment by Sheriff of Middlesex is not a Commitmitment in London tho' the Sheâ—iffs of London and Middlesex are one force of a Writ to the Sheriff of Middlesex he may not be said in any respect to be in the County of London for the Counties continue several and the Prison several in respect of the several Commitments For there are two several sides and a partition between them 1 Rol. Abr. 894. Coas's Case Trin. 16 Jac. B. R. By the Custom of London the Writ of Execution is directed to the Sheriffs of London and not to the Coroner who is the Mayor 2 Rol. Abr. 806. The Retorn of the Outlawry out of London in C. B. is generally made without saying Per judicium Coronatorum Sheriffs Court The Custom is When a man is impleaded Court of Conscience before the Sheriffs the Mayor upon suggestion of the Defendant may send for the parties and for the Record and Examine the parties upon their Pleas and if it be found upon his Examination that the party Plaintiff is satisfied that he may award that the Plaintiff shall be barred And this is called The Court of Conscience 4 Inst c. 50. 8 Rep. City of London's Case The Plaintiff in Assault and Battery in his Replication saith The City of London is an Ancient City and have Pleas and that there was a Plaint in such a Court before F. M. by virtue of which Process the Plaintiff was taken He should have alledged a Custom to hold a How to Lay the Custom of the Sheriffs Court Court before the Sheriffs and that F. M. was then Sheriff It is said Coram F. M. uno Vicecom ' its well enough there being two Courts tho but one Sheriff 1 Keb. 564. Osborn and Parker As to the difference between the Sheriffs Court and Mayors Court. A Clerk of the Mayor's Court said That the Figures Difference of the Entries in the Mayors Court and the Sheriffs Court 264 in their Entries signifie the 26th day of the 4th Month 26 the Day and 4 the Month accounting November in which the Mayor is Chosen the first and so the fourth Month is February But in the Sheriff's Court they count their Months in October And accordingly it was Ordered That Ashfield the 20th day of February commenced a Plaint c. 2 Rol. Rep. 380. Ashfield's Case If an Erroneous Judgment be given in any Writ of Error to be brought in
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
the Plaintiff Per Cur ' The Plea is Ill for want of Place it is not said where the Court was held nor whether the Party escaped by consent 2 Keb. 567. Moor. Rep. 19. Prin and Smith To Scire fac ' on Judgment in Debt Defendant Bar by volutarily Escape ill as to party Plaintiff pleads a Capias ad satisfaciend issued out of the Court of Kings Bench and that he was taken thereupon and on Habeas Corpus out of the Common Bench he was committed to the Custody of the Warden of the Fleet and that the Warden suffered him voluntarily to Escape To this it was demurred because he concludes not aright And per Cur ' the Execution must be alledged by matter of Record and therefore he must conclude his Plea prout patet per Recordum The difference is between Process that requires no Retorn and the Record whereby he is committed is shewed The Committitur in an Action of Escape is but inducement but in a justification it is substance Upon a Capias or Latitat he need not so conclude but here is Matter of Record also here the Matter of the Bar is not the Matter of Fact but the having sued out Execution on Record And Secondly It s all one as to the Party whether he Escape by the Sheriffs negligence or voluntarily If the Party negligently Escape the Party and the Sheriff may take him again but if voluntarily then only the Party may take him again but not the Sheriff but if the Sheriff let him go by consent of the Plaintiff then neither can take him and Bar by voluntary Escape is held Ill. Judgment pro Quer ' 2 Keb. p. 187 206. Alenson and Butler 2 Keb. 802. Vilner and Allen. Until of late time the Discharge of the Gaoler was a good Discharge As in 3 Co. Ridg ways Case Hob. Case of the Earl of Essex 8 Rep. Dr. Drury's Case but now the Law is taken otherwise Vide supra In Audita Querela voluntary Escape in the Sheriff is no good surmise but that the Sheriff may retake him again Vide supra 1 Rol. Ab. 902. Trevillian's Case Hob. 202. Sheriff of Essex Escape Of Issue Evidence Special Verdict In Debt for Escape on nil debet pleaded the On nil debet Fresh persuit Defendant may give Fresh persuit in Evidence And by Hales at a Tryal at Bar said he always let them give in Evidence Fresh persuit on nil debet And by Wild it is done generally Mod. Rep. 116. 3 Keb. 305. Mosedell's Case In Action against a Gaoler upon Escape of a Evidence in Fresh persuit Prisoner in Execution If the Issue be whether the Gaoler immediately after the Escape made Fresh suit after the Prisoner c. and the Evidence is given that a Prisoner escaped out of Prison by the negligence of the Keeper and is absent a day and a night and the Keeper knows it not having many other Prisoners under his care but when he had notice of it he immediately makes Fresh suit after him and retook him This is an immediate Fresh suit to Which is a Fresh persuit maintain the Issue for covnenient persuit is an immediate persuit in Law 2 Rol. Ab. 681. Hinâ—on and Sir John Lenthal and Elton and Sir John Lenthal on Evidence at the Bar where the Evidence was that he escaped at nine a clock at night and the Notice and Fresh Suit on which he was retaken was the next Morning at nine a Clock Issue was whether A. was taken by a Capias at the Suit of B. and Evidence was taking by a Capias at the Suit of C. and thâ—â— a Delivery of a Capias at the Suit of B. to the Sheriff its good Evidence for tho' he were taken before yet this is a new taking in Law as to this Execution So if the Issue be of a taking on a Capias ad satisfaciend ' and Evidence be by a taking on a Capias Utlegat ' or pro fine with a prayer of the Plaintiff that he may remain for satisfaction Issue was whether J. S. was taken with a Capias Evidence was given by an alias Capias And good Hob. p. 54. In Debt on Escape against the Marshal and Evidence by alias Capias Evidence of Fresh persuit Nil debet pleaded The Plaintiff said he could prove that the Prisoner was at London three long Vacations The Evidence was an Habeas Corpus ad Testificand ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells and that he went 60 Miles beyond Wells before he retorned again Verdict pro Quer. for 620 l. Mod. Rep. 116. Mosedell's Case In Escape upon a Capias retorned ne unques Ne unques en son gard how tried The Prisal how tried on Cap. not Retorned Imprisonment on the Execution how to be tried How in the Case of Mayor of the Staple Arrest in one County and Escape in another where to be tried en son gard shall be tryed by Record But upon a Capias not Retorned the prisal shall be tryed per Pais Rolls 2 Abr. 574. The Imprisonment upon the Execution and not for other cause in Escape shall be tried by the Record But in Escape against the Mayor of a Staple for suffering J. S. in Execution upon a Statute Staple to go at large if the Defendant say he was not in Prison upon the Execution but upon plaint there this shall be tryed per Pais and not by Record because it would be unreasonable the Defendant should certifie a Record where he himself was concerned In Escape upon Arrest in one County and Escape in another County upon not Guilty this shall be tryed where the Escape is laid for the Action is upon the Escape Roll. Ab. 602. Action on the Case against a Sheriff upon Escape in London and the Arrest laid to be in Southampton Per Cur. The Visne shall be where the Escape was because that is the ground of the Action and not where the Arrest was 3 Cro. Richbel and Goddard Note In Action on the Case for Escape or Deceipt the Court will not charge the Visne out of the County where the Plaintiff supposeth the thing to be done Siderfin p. 87. In Action on the Case against the Sheriff of York for an Escape and declares that he arrested Charging the Visne the Prisoner in the said County and after suffered him to escape at D. in Com' Nottingham To which the Defendant pleads not Guilty this Issue may be tryed by the County of Nottingham only without joyning the County of York for the Action and Issue is upon the Escape and not upon the Arrest M. 40 41. El. B. R. Bennion and Watson Debt against the Marshal for suffering T. B. in Execution at the Plaintiffs Suit to Escape Defendant Pleads he did not suffer him to Escape And gave in Evidence That T. B. brought Evidence on non perâ—isit â—re ad Larg Attaint