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
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
Gaol and A. B. rescued him This Retorn was Insufficient because he did not shew at what place A. B. made the Rescue for it shall not be intended the place where the Arrest was Bro. Ret. 97. Vide plus tit Rescous The Teste of a Writ was 2 Martii 11 Eliz. Prox futur ' how to refer The Retorn was In quarta Septimana Quadrigesimae prox ' futur ' The words prox ' futur ' refer to quarta Septimana not to Quadrigesimae Mo◠365. Barton and Lever In Trespass the Sheriff retorned in the Common That the Defendant was attached per c. how to be retorned Bench that the Defendant was attached per catalla ad valentiam de 10 l. It s a void Retorn for he ought to retorn he was attached by one Beast or Chattel certain and name them that so they may be forfeited Cro. El. 13. Lawrence and Nethersole 1 Anders 51. vid. tit Attachment In Outlawry of Murder the Sheriff retorns Retorn in Outlawry Ad Comit ' meum tent ' apud D. en le County de Northumberland and saith not in Comitat ' meo Northumbriae tent ' c. It s Error for one may be Sheriff of Cambridge and Huntingdon and of Surrey and Sussex 2 Rolls Rep. 52. Alder's Case Action of the Case upon Escape of one taken Time viz. by Ca. sa ret ' Paschae 16 Car. 2. on a Judgment entred in Mich. 16 Car. 2. which is repugnant and impossible and this moved in Arrest of Judgment on the retorn of a Writ of Enquiry But the Teste appearing to be Jan. 16 Car. 2. ret ' Crast ' Ascent ' and that Virtute brevis postea ante retorn ' viz. such a day of May 16. which should be 17. Per Cur ' This is a void Retorn Viz. being expositive only 2 Keb. 101. Hanmer and Unit. Where a Retorn shall be void for the Incertainty or Repugnancy or not In a Replevin on the Causam nobis significes In Replevin if the Sheriff retorn That the Beasts cannot be delivered quia visum inde habere non potuit This is not good because he doth not say accessit ad locum for perhaps he could not have the View because he did not go where the Beasts were 2 Ed. 3. 54. b. Outlawry was reversed because the Exigent had Uncertain retorn of the Exigent Prout sibi constare poterit is ill in retorn an uncertain Retorn 2 Rep. Dr. Drury's Case 141. If a Capias comes to the Sheriff to take a man it s no Retorn that he was found within his Bailiwick after the delivery of the Writ prout sibi constare poterit This is not good but he ought to retorn expresly Quod non est inventus 9 H. 6. 57. So in a Fieri fac ' de bonis Testatoris against Executors if the Sheriff retorn that they have not any Goods in balliva sua after the delivery of the Writ prout ei constare poterit This Retorn is not good for he ought to take notice whether they had Goods or not and so retorn it 9 H. 57. b. But in Debt against an Executor who pleads Retorn on Assets plene Administravit and Assets are found upon a Fieri fac ' the Sheriff retorns that he had nothing within the same County it s a good Retorn Bendloes n. 91. Upon Habere fac ' seisinam the Sheriff retorns Uncertain that the party who ought to take the Seisin non prosecutus est breve This is not good for the uncertain Intendment of it and the coming of the Sheriff to have seisin is not properly a prosecution of the Writ Pasch 15 Jac. Floyd Bethill On Entry sur disseisin of two Acres Hab ' fac ' Repugnant seisinam was awarded The Sheriff as to one Acre retorns Habere feci as to the other Tardè the Sheriff shall be amerced for such a Retorn as being contrary and repugnant in it self As in Ca. sa against two the Sheriff retorns as to one Cepi and to the other Tardè he shall be amerced 2 Leon. 175. Vide Rescous What shall be a good Retorn against the Admittance of the party or not Debt against the Heir If the Defendant In Debt against the Heir pleads Nothing descends to him but an House in B. upon which Judgment is given for the Plaintiff sed quia ignoratur of what value the House was a Writ issues to the Sheriff to enquire of the Value and according to that to make Execution and the Sheriff retorns That the Heir sold the House before the Writ came to him This is not a good Retorn Hen. 7 Jac. B. R. Goldson and Bennet If in Action of Debt against Executors the Defendant In Debt against an Executor acknowledgeth the Action on which a Fieri fac ' issues the Sheriff may retorn Nulla bona c. for this stands with the Judgment inasmuch as he confest the Action but not that he had Goods 2 Roll. Abr. 459. Newman and Babington Upon Habere fac ' seisinam upon a Judgment against J. S. it is no good Retorn for the Sheriff to retorn That J. S. had nothing in the Land nor was Tenant 17 Ed. 3. 66. b. The Sheriff on Levari Retorns That he had Sheriff pleads Levied the said sum which was 2000 l. and in Debt he pleads as to 308 l. Nil debet and as to the rest a Release from the Plaintiff the Plaintiff demurrs Now the Plea of Nil debet is ill and the Sheriff is Estopt to plead it for it is contrary to the Retorn But per Cur ' since they have not relyed upon the Estoppel but taken Issue that could give them no advantage Hob. 206. Speake and Richards What shall excuse the Sheriff for his not Retorning and what shall not As for the Sheriffs retorning a Rescous Vide sub tit Rescous The Sheriff retorned a Resistance on Habere Resistance fac ' seisinam and he was amerced 20 Marks because he did not take the Posse Comitatus and an Alias awarded Hill 19 Ed. 2. Execution 147. On Habere fac ' seisinam it s a good Retorn to That none came to take Seisin excuse the Sheriff that he at all times was ready to deliver Seisin and appointed divers times in certain for the party to come to the Land to receive Seisin but none comes for the party to receive it 2 Roll. Abr. 459. Floyd and Bethell So he ought to excuse himself from the time before the day aforesaid otherwise the Retorn is not good for peradventure he was requested before and would not perform it mesme Case It is no good Retorn for the Sheriff to say That he is not paid his Fees That the party will not pay his Fees and therefore that he would not execute the Writ 34. H. 6. Bro. Ret. 10. The very words of the Writ do enjoyn the Sheriff to make retorn of it and if he be
him manu forti But per Cur ' that is but mitigation of Damages but his Retorn was false and therefore the Action lieth 1 Rol. Abr. 738. Lister and Bromley If the Sheriff retorn Exigent 3 aut 4 exact ' Exigent and that there were not more Counties where in truth there was a fifth County the Plaintiff shall have Action on the Case against him 9 H. 6. 60. b. Sheriff arrests the party and yet retorns Non est inventus Action on the Case or Trespass Non est inventus or False Imprisonment lies against him for he is a Trespasser ab initio Cro. El. 729. Hawkin's Case 18 Ed. 4. 18. Action on the Case was against the Sheriff Cepi corpus on Stat. 23 H. 6. for that he arrested J. S. and set him at large absque aliqua securitate inventa for his Appearance and at the Day retorned Cepi corpus and that the said J. S. did not appear at the Day but hid himself and that upon an Habeas corpus awarded he retorned Paratum habeo which was Faux whereby the Plaintiff was delayed in his Suit c. The Defendant pleaded That J. S. being arrested put him in Sureties for his Appearance J. N. and J. D. who are persons of sufficient Estate within the County and were bound to him in 40 l. for the Appearance of J. S. at the Day in the Writ mentioned and pleaded the Statute of 13 H. 6. c. 10. by reason whereof he let him at large and traverseth Absque hoc that he let him at Large absque aliqua securitate inventa prout c. Cro. El. 624. Barton and Aldworth The Court held the Plea and Traverse to be good for he is by the Statute compellable to take Bail and it s left to his discretion what Bail to take And altho' he had not the Body at the Day and afterwards at the day of the Habeas corpus retorned quod paratum habco when he was at Large that is a contempt to the Coâ—â—t and Fineable but it s nothing as to the party nor can he take advantage of it So that the Law which has been disputed is Sheriff not charged in Action on the Case for retorning Cepi corpus when he had bailed the party 23 H. 6. 10. A General Law in some Cases setled That where the Sheriff takes Bail according to the Statute of 23 H. 6. and retorns Cepi corpus tho' the party do not appear at the Day yet the Sheriff shall not be charged in an Action on the Case for a False Retorn Siderfin p. 22 23. Allen and Robinson Mo. n. 590. Langton and Gardner For the Statute of 23 H. 6. is a General Statute of which the Judges shall take notice but if it does not appear to be a Retorn within the Statute but at Common Law there for his Non-appearance Action lies And there is a Case in Siderfin on this Point which is worth observation as to laying the Action and Pleading Action on the Case was brought for a False Retorn i. e. Cepi corpus and yet he had him not at the Day but suffered him to escape The Defendant demurs to the Declaration Now the Action is good because the Declaration shall be taken to be true upon this Demurrer And the Statute of 23 H. 6. is in part a private Statute and the Court will not take notice of it without pleading it But had the Defendant pleaded it Specially or had he pleaded Not Guilty he might have had advantage of this Statute and have ousted the Plaintiff of his Action After the said Statute the Sheriff cannot make a Special Retorn but Cepi corpus or Non est inventus So that the Case of Allen and Robinson as to that Point is good Law For such Action lies not properly against the Sheriff because the Statute of 23 H. 6. compels him to Bail the Prisoner and yet the Sheriff shall retorn a Cepi corpus as formerly Siderfin p. 439. Parker and Welby Now it s said in Benson and Welby's Case that 23 H. 6. c. 10. is a private Statute and ought to have been pleaded 2 Sand. 154. Benson and Welby Now that Statute as Whelpdale's Case is is a private Law as to Sheriffs Bonds but as to Extortious Fees it s a publick Law 2 Keb. 626 657 Mod. rep 33. mesme Case If a Sheriff levy Money on a Levari facias Debt vers Vic' if he levy the Money on Levari upon a Recognizance at the Suit of J. S. and retorns the Writ served J. S. may have Debt against the Sheriff or against the Sheriffs Executors But in this Case the Plaintiff demurr'd to the Defendant's Plea and Concluded ill The Plea was grounded on a Release and he should have demanded Judgment if the Defendant should be admitted to plead a Release made after the Sheriff had made his Retorn 1 Rolls Abr. 518. Speake and Richâ—â—ds 1 Brownl 57. mesme Case Hob. p. 206. mesme Case Action on the Case lies against a Sheriff who Action lies for accepting the Retorn of one that is not Bayliff Against Bayliff of a Franchise accepts of a Retorn of one that is not Bayliff and against him that made the Retorn Mo. 431. Palmer and Smalbate Action on the Case lies against the Bayliff of a Franchise for negligent Execution or a False Retorn Mo. p. 431. Action on the Case lies against a Sheriff for For making other Retorn than is retorned by Bayliff of a Liberty Where the Action lies against the Sheriff or Bayliff of a Franchise on a False Retorn making other Retorn than is retorned to him by a Liberty or Bayliff of a Franchise who had Retorna brevium 1 Roll. rep 119. Upon a Fieri fac ' against an Administrator the Sheriff makes a Warrant to the Bayliff of a Franchise to execute it and after the Bayliff is removed and another Bayliff elected and after the old Bayliff retorns in his own Name to the Sheriff That the Administrator had not any Goods praeterquam c. which is false and after the Sheriff makes retorn accordingly to the Court yet no Action on the Case for this False Retorn lies against the Bayliff For the Retorn ought to have been made of the new Bayliff and so the Sheriff had accepted a Retorn from one as it were a meer stranger and so void And he ought to take Cognizance of the right Ministers of Law and therefore the old Bayliff for this False retorn is not punishable by the Law but the Sheriff 1 Roll. Abridgm 99. Palmer and Marsh If the Sheriff retorn Mandavi ballivo Libertatis c. qui mihi responsum dedit c. if the Matter of the Retorn be false no Action lies against the Sheriff but only against the Bayliff For the Sheriff ought to accept the Retorn of the Bayliff and not examine the reality of it if it be sufficient in Law 1 Roll. Abr. 98 99. Palmer and Marsh Cro. El.
satisfaction to the party who Recovered The Sheriff may have Trover or Trespass at election against him that takes them away as Wilbraham and Snowe's Case The Plaintiff being Sheriff seizeth the Goods in Execution by force of a Fieri fac ' and after and before the Sale of them the Defendant takes them and carries them away and converts them to his own use and the Plaintiff being Sheriff brings his Action of Trover and Adjudged the Action well lies By the Seizure of the Goods in Execution the Sheriff hath a property in them so that he may reseize them and sell them as well when he is out of his Office as before Mod. Rep. 2 Sand. 47. Wilbraham and Snow Mod. Rep. 57. Ayre and Aden 2 Sand. 244. Mildmay and Smith Yelv. contra fo 44. Therefore Dyer 99. cited in Dalton 147. is not Law which saith That by the Seizure of the Sheriff the property is not altered until they be sold After the Debt levied the Sheriff is Debtor to the Plaintiff and capable of a Release from him the Action ceasing against the Defendant is ipso facto by the Law transferred to the Sheriff having both the Judgment to make it a Debt and the Levy to make him answerable and tho' Action of Account will properly lye in this Case yet the same will many times bear both Actions tho' the Moneys be received by auter mains or the like Hob. 206 207. Speak and Richards The Case is Reported by Roll thus If a Sheriff levy Money upon a Levari facias upon a Recognizance at the Suit of J. S. and Retorns the Writ served J. S. may have Debt against the Sheriffs Executors But in that Case the Plaintiff demurred to the Defendants Plea and Concludes ill 1 Roll. Abr. 418. The Plea was grounded upon a Release and Action against the Sheriff or his Executor for levying money on the Levari and not retorning the Writ should have demanded Judgment if the Defendant should be admitted to plead a Release made after the Sheriff had made his Retorn and in such case Action lies against the Sheriffs Executor altho' it does not appear that the Fieri fac ' on the Judgment was Retorned for this is not material inasmuch as the party is discharged by payment of it without Retorn And this is not grounded on a personal Tort but on a Contract in Law and this is not a simple Contract but principally grounded upon a Record as it was Adjudged in Parkinson and Culleyford's Case But in an Anonymous Case Cro. Car. 297. Action Action by Executor for levying the Debt and not retorning the Writ in vita Testatoris on the Case was brought by Executor against the Sheriff who had levied the Debt in Execution and did not retorn the Writ and after the Testator died and the Plaintiff for that Tort in vita Testatoris and for the Loss which came to him brought the Action The Quaere was if it lies by the Executor because its a personal Wrong to the Testator And the Court was divided Cro. Car. 297. Vide Escape Where and what remedy against the Sheriff for the Money to the value of the Goods taken in Execution or not The diversity lies on the Sheriffs Retorn Retorn If the Sheriff in executing a Fieri fac ' doth not misbehave himself he shall not be charged in Debt or Scire fac ' unless it appear by his Retorn that he had the Moneys in his hands As if the Sheriff retorn Cepi seisiri feci in manus meus bona catalla ad valentiam 160 l. quae remanent in manibus meis ob defectum emptorum On this Retorn the Sheriff shall not be charged in Debt or Scire facias because it appears not that he has misbehaved himself But if upon the Fieri fac ' the Sheriff Retorn That he hath levied the Money and doth not pay it to the Plaintiff at the Retorn of the Writ the Plaintiff may have a Scire fac ' against the Sheriff to shew Cause wherefore the Money should not be levied of the Goods of the Sheriff 2 Sand. 344 345. Mildmay and Smith Hutton 32. 11. Smith and Linsey So if in Fieri fac ' to levy 200 l. Debt c. the Sheriff Retorns That he had made a Warrant to his Bayliff who had seised divers Goods of the said S. ad valentiam of 160 l. and that they were rescued out of their Custody ita quod he could not Levy the Debt and that the said S. nulla alia habuit bona The Plaintiff may bring a Scire fac ' to have Execution against the Sheriff for the Moneys according to the value Retorned and the Sheriff shall pay it out of his own proper Goods 1 Anders 247. Roke and Wilmot With this agrees 9 Ed. 4. 50. Scire fac ' 21. If Old Sheriff Scire fac against the old Sheriff to pay the Money levied in execution the Sheriff Retorn upon a Scire fac ' that he hath levied the Mony and hath the same in Court but hath not the Money at the day and then a new Sheriff is chosen in this Case it being on Record that the Money is levied by the old Sheriff a Scire fac ' shall issue against the old Sheriff to pay it And if he cannot or will not Discharge and pay the Money the Party shall have a Fieri fac ' or Elegit against the Sheriff of his proper Goods On Fieri fac ' the Sheriff seised several Goods which were Mercery Ware and Retorns Fieri fac ' ad valentiam which Retorn was Filed The Sheriff appears and prays to amend the Retorn because some of the Goods were impaired by lying and he could not get Buyers Per Cur ' 1. Such Retorn may not be altered Retorn not amendable after it is Filed after it is Retorned and Filed 2. Where the Sheriff Retorns Fieri fac ' ad valentiam this shall be no excuse of his payment of the Money because he might have Retorned he had seised the Goods and that they remain pro defectu emptorum and then he may be excused if the bona peritura perish Siderfin p. 40. Needham and Bennet Therefore the Sheriffs were ordered to pay the Money and to answer Interrogatives for their Contempt having been ordered to bring in the Money and not appearing till a Tipstaff was sent As to amendment of Retorns Matter of Form Amendment of Retorn in a Retorn is amendable but not matter of fact which goes to justification of the Imprisonment 2 Bulst 259. Dr. Alphouses's Case The Sheriff Demeaner in Executing the Fieri fac ' If the Sheriff have a Fieri fac ' against a Mans Tresp versus vicount Goods and before Execution he pay him the Money in this case he cannot do Execution after and if he do an Action of Trespass or false Imprisonment lies against him B. R. p. 12 Jac. 1. As to breaking open Houses to do
of the Term to the use of the Grantor himself is not void per Stat. 1 H. 7. for this Grant is not to avoid Creditors For the Term being in right of the Wife as Administratrix and if it had so continued in the hands of W. and had never been granted this was not extendible for the Debt of W. and if W. had it as Executor himself it was not extendible for his proper Debt and Fraud shall not be intended except expresly Fraud not to be intended found therefore the Sale is good Cro. El. 291. Ridler and Punter W. had Execution out of the Kings-Bench by Officer first sells on one Judgment and delivers upon another pretending the first Judgment was fraudulent The Sale shall bind the King Scire facias of a Term which was sold by the Bayliff of a Liberty After upon another Judgment the Bayliff delivers this Term to another pretending that the first Judgment and Execution was fraudulent But per Cur ' it is not well done for he is not a Judge of Fraud and the Court will not allow such pretence to Sheriffs and Officers Latch p. 53. Warrington's Case If the Sheriff extend or sell a Lease this Sale shall bind the King as to his Debt because it is but a Chattel and there was no Covin 8 Rep. 171. Sir Gerrard Fleetwood Upon an Execution against the Husband for Sell the Wises Term for the Debt of the Baron his Debt the Sheriff may sell the Wives Term during her Life Co. Lit. 351. a. The Form of a Retorn of Fieri feci on a Fieri facias Vide Dalt c. 61. Whether a Fieri fac ' upon a Judgment in the Kings-Bench shall go into Wales Plaintiff recovers a Debt against the Testator in B. R. the Action was laid in London and after the Death of the Testator the Plaintiff after Judgment in Scire fac ' sues a Fieri fac ' at London upon which the Sheriff retorns nulla bona by which he sues a Testatum fieri fac ' to the Sheriff of Montgomery in Wales directed to levy the Moneys recovered de bonis Testatoris in manibus Executoris Upon which Writ the Sheriff Retorns this EGo C. L. Baronet ' Vic. infra-mentionat ' Comit ' Montgomery domini Regi humillime Certifico quod infra specificat ' Comitat ' Montgomery est un ' duodecim Comitat ' infra Principalitat ' sive Dominium dicti Dom ' Regis Walliae ubi Breve Domini Regis ipsum regem minime tangen ' non currit quodque non patet per istud breve quod idem breve dictum Dom ' regem ullo modo tangat unde advisament ' Curiae dict' Dom ' Regis coram ipso Rege humillime imploro si mandatum istius brevis exequi poterim C. L. Baronet Vic' The Sheriff on this Retorn was amerced Sheriff not to dispute the Jurisdiction of the Court. and that the Plaintiff should have a new Writ For the Sheriff by his Retorn ought not to dispute the Jurisdiction of the Court to which he is a Minister But if the Court erroneously award Process which was not to be awarded the Sheriff ought to obey and execute it but the party grieved may shew this Matter to the Court and pray that they will supersede their Erroneous Process and so have remedy But as to the Question vid. 2 Sand. 194. Draper and Blaney 2 Keb. 657. Draper's Case 715. Elegit lies into Wales and so doth Execution on a Statute Merchant and that breve Dom. Regis non currit in William is intended of Originals not on Judicials 3 Keb. 170. Witrong and Blaney 1 Bulstr 54. Hall and Rotheram Cro. Jac. 484. A Capias on a Fieri fac ' lieth into Wales 2 Keb. 715. It was the Opinion formerly that a Fieri fac ' on Original Judgment in B. R. doth not lye into Chester Vvales c. but as Dyer the Court shall send the Record and Writ thither And in Action of Debt there it may be but it s granted every day into Lancaster VVales c. 2 Keb. 410. The King versus Needham and Bennet A Writ of Execution goes into VVales and 27 H. 8. c. 26. makes this plain for by it VVales and England are annexed PLowd fo 200. Stradling and Morgan CHAP. XVIII How the Sheriff is to demean himself in giving Possession and Seisin upon the VVrits of Habere fac ' possessionem or Seisinam As to the manner of doing or the retorn of a Supersedeas VVhere it shall stay the Sale of Lands or Goods or not VVhat amounts to a Supersedeas VVhere and when a VVrit of Error is a Supersedeas Of Audita Querela IN all Cases where the Execution of a Judgment The Sheriff to make Execution of the thing at his peril in which the Demand is of a thing certain If the Sheriff do this thing he is not any Disseisor But where the Execution is in the generalty without mentioning of any thing in particular there the Sheriff ought to make Execution of the right thing at his own peril Diversity otherwise he shall be a Disseisor for he is bound to take notice of it and he had not any Warrant from the Court to make Execution of any but the right thing As if a man recover in Assize divers Houses and after the Tenant reverseth it in a Writ of Error and a Writ of Execution issues to the Sheriff to put him in possession of the Houses which he had lost by the Judgment altho' the Tertenants are Strangers to the Recovery and for this they ought not to be ousted without Scire facias against them yet if he do Execution by putting them in possession by force of this Writ he shall not be any Disseisor for that he hath the direct Authority of the Court to do it Pasch 15 Jac. Floyd and Bethel So in Judgment for the Casual Ejector for 47 Houses and on Habere facias possessionem the Sheriff turns out these 47 Tenants and 80 other Tenants without any Process or Plea against them Per Cur ' We will not grant any Writ Trespass against the Sheriff for wrong executing Possession to supersede the Execution against the 80 Tenants for if it should be it ought to be quia erronice and there was not any Error in the proceedings against them because there was not any proceedings But they did Advise that every one should bring Trespass against the Sheriff 2 Siderfin 155. If the Sheriff do deliver possession of more Case against the Sheriff for delivering more Acres than are in the Writ Diversity Acres than are in the Writ this makes not the Writ erroneous but in such case Action on the Case lies against the Sheriff for doing it or an Assize against him that hath the possession delivered to him for the Surplusage of the Land But if the Writ of Hab. fac possess to deliver possession to the Plaintiff of Lands recovered
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
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
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
he ought to have pleaded it with a primo deliberat ' after the Arrest Noy 23. Collins and Phillips To Debt on Bail Bond to Appear the Defendant Plea That before the day of Appearance he was taken by a Cap ' Utlagat ' pleads before the day he was taken by Capias Utlagat ' and detained till after the day and so could not appear The Plaintiff demurred and it was Adjudged to be an ill Plea for the party may remove himself by Habeas corpus and if this should be good all Bail Bonds may be thus avoided and the Plaintiff doth but his Duty 2 Keb. 262. Jeffreys and Cooper Siderfin 406. id Case In Debt the Defendant pleaded the Statute of 23 H. 6. and that was for ease and favour and not for a just Debt The Plaintiff Replies It was for a just Debt absque hoc that it was for ease and favour To which the Defendant Rejoyns Rejoynder specially and the Rejoynder was set aside in the Vacation by Judge Rainsford and the Plaintiff entred Judgment for not joyning on the Issue tendred by the Plaintiff And per Cur ' the Judgment was affirmed 2 Keb. 554. Berry and Bishop Regula For when an Issue and Rule is given the other party must joyn and cannot depart to any new matter Regula A Sheriff brought Debt on a Bond dated the 13th of Jun. the Defendant demands Oyer on Traverse Time of the delivery of the Bond. the Condition which was That if he appear Veneris prox ' post tres Trin ' and pleads That Veneris prox ' post Trin. was 14 Junii and that he was Imprisoned by the Plaintiff till the 19th of June and that the Obligation supra fuit primo deliberat ' by the Defendant the 19th of June absque hoc that this was delivered as his Deed before the 19th day of June Siderfin p. 300. Courtney and Phelps 2 Keb. p. 108 109 122. mesme Case Per Cur ' This is not a good Traverse it ought to have been absque hoc that it was delivered as his Deed before die Veneris prox ' post tres Trin ' For if the Traverse suprà be allowed the Plaintiff shall be excluded from answering to the Time alledged of the Retorn altho' it be false The Defendant pleads Stat. 23 H. 6. and that Traverse Time of the Retorn he was in Custody by warrant of a Writ Retorned Veneris post Octab. Purificat ' The Plaintiff Replied The Defendant was taken by a Warrant on a Writ Retorned Sabbat ' post Octab ' Purific ' and not by any Writ Retorned Veneris c. The Defendant Rejoyned That he was in Custody by virtue of a Writ Retorned Veneris post Octab ' Purific ' absque hoc that he was taken by any Writ Retorned Sabbat ' post Octab ' The Plaintiff demurrs Per Cur ' This is no Traverse upon a Traverse and there would be no Traverse in the Replication which would make an end but in the Rejoynder it doth 2 Keb. 94 105. Bennet and Philkins 1 Sand. p. 20. mesme Case 3 Keb. 656. Gold and Cutler 191. Sturges Debt on Bond the Writ was Ad respondend ' H. G. nuper Vic' Norf. and the Count was Qd ' concessit se teneri praefat ' J. H. in praedict ' 40 l. and saith not Tune Vic' Norfolc ' existen ' And per Cur ' Sur Demurr ' upon the Bar it was Ajudged que Count fuit insufficient Cro. El. 800. Guyben and Whichstcomb 3 Keb. 191. Twisleton and Dunken J. S. puts himself in a Special Bayliff and Special Bayliff takes Bond. It is by Duress Arrests J. D. and takes Bond c. This is by Duress and the Defendant may plead that yet it s not within the Statute nor aided by it For J. D. was never in the sheriffs Custody after the Arrest and the Bond was taken out of the County where he was Arrested and so by Duress Cro. El. 746. Brown and Adams 3 Keb. 756 760. Earl of Bristol and Lord Burkin The Defendant pleads to the Sheriffs Bond After the Writ purchased and before the delivery of it to the Sheriff he may take Security that there was no Writ ever delivered to the Sheriff and so would avoid it by Stat. 23 H. 6. The Sheriff after the Writ sent out but before the Delivery takes Security Which per Cur ' he may if the Defendant will give it 1 Keb. 554. Bromfield and Penhay What Appearance to a Sheriffs Bond is good c. If Appearance be the same Term it is good Appearance after the Day is good The Defendant pleads to a Sheriffs Bonds taken for his Appearance in B. R. die sabbat ' prox ' post Octab ' Sancti Martini and that he appeared at the day And the Court of Common-Pleas gave him a Day to bring the Record of his Appearance by Mittimus out of the Chancery And the Record was certified that he appeared Lunae prox ' post Quindena Martini which was after the Day and adjudged good 1 Brownl 58. Statifield and Grony Idem 74. Carter and Freeman So in Daly and Fryar's Case The parties Appeared two days after the Day in the Condition is good and shall be a discharge of the Bond for the whole Term is but one day in Law so it is in the Common Pleas and in the Kings-Bench 2 Bulstr 255. Daly and Fryar A Debtor having given Bond to the sheriff Defendant ought to Appear notwithstanding a Supersedeas to Appear tho' a Supersedeas comes to the Sheriff before the day of Appearance yet he shall appear to take his Bond. A Sheriff sues his Bail Bond for Non-appearance Plea of Comperuit ad diem how Issue to be joyned and on whose part the Proof lies The Defendant pleads Comperuit ad diem The Plaintiff Replies Nul tiel Record comparentiae The Defendant Rejoyns Quod habeatur tale Recordum Now the Proof lies on the Defendants part to produce the Record in Court A Condition to Appear in B. R. where the Process is Retornable c. The Defendant said in facto that he had appeared secundum formam c. Et hoc petit Repleader was awarded for it must be tryed by the Record A. is bound to Appear such a day c. and A. How the party may Enter his appearance No Process is Retorned at the said Day goes to the Court but there no Process is Retorned Then the party may go to one of the Chief Clerks of the Court and pray him to take a Note of his Appearance Vide the Form of the Entry in such case 1 Leon. p. 90. Brett and Shepard If the other party plead Nul tiel Record it behoveth that the Defendant hath the Record ready at his peril For the Court of Common Pleas cannot Write to the Justices of the Kings-Bench to certifie a Record thither Of the Sheriffs Retorn upon taking Bail and of his taking Insufficient Bail or his refusing sufficient Bail and the
vivariis or which shall be found in Arrears in Account before they be attainted Vide 1 Ed. 3. c. 7. My Lord Coke in his 3 Inst 35. extreamly inveighs against Racks It is true the punishment is amazing but as the sins of every Age grow more impudent so their penalties ought to be more severe And if we will translate our Neighbouring Nations Villanies we ought to imitate their punishments especially for Offences publick and which go to the ruin of a Nation I will put a common Instance At this present our current Trade is almost spoiled by our Noncurrent Money and he that shall break open a Bakers Window to take a Sixpeny Loaf to supply meer Nature shall be as severely treated as ' he that Clips and Counterfeits the Coyn I mean a little dry Hanging serves for both for as to the Sledge its insignificant And we shall conclude It will never be otherwise unless the Breaking on the Wheel and dying by piece-meal sometimes used in other Countries may terrifie Spectators and those to whom it is Reported ut poena ad paucos c. Tho' there is no person that has a greater Veneration for our Common Law than my self yet I conceive I may say the spreading and new Villanies of our Nation are chiefly owing to our undistinguishing punishments He that takes but Half a Crown on the Pad shall be hanged and deservedly and he that Blasphemes his God Murders his Father and commits a Rape upon his Mother shall e'en make his Exit with a few wry wet Looks and a little Swing or two Which punishment I must needs observe is almost grown into Contempt by the major part of Criminals I need but mention the notorious Case of Felton and the late Story of the barbarous Midwife By our Law it is plain A Prisoner in Execution shall not be in Fetters but for Criminal Causes But to return to my purpose A Prisoner while he is such is under protection of the Law and accordingly is to be used And therefore where a Prisoner by duress of the Gaoler comes to an Untimely End it is Murder in the Gaoler 3 Inst 52 91. And the Law implies Malice in him in respect of the Cruelty And therefore if a man dye in Prison the Coroner ought to sit upon him to the end it may be enquired if he came to his death by the duress of the Gaoler or otherwise 3 Inst 91. 52. If the Sheriff or other Officer where he ought to Hang the party attainted according to his Judgment and his Charge will against the Law of his own wrong Burn or Behead him c. the Law in this case implies Malice in him By the Statute of 14 Ed. 3. c. 10. If a Keeper or Under-Keeper of Prisons by too great duress of Imprisonment or by Pain make a Prisoner become an Appellor viz. an Approver against his Will its Felony Every Imprisonment is in Law duritia duress a little addition to it by the Gaoler is too great duress in this case There is a remarkable Case in 3 Bulstrode The Court was moved by Sir G. Reynell against one of his Prisoners who had much misbehaved himself offered to Escape and had endangered the killing of one of his Servants and that he had spent Ten pounds after him and he would have had the Court to have fined him But per Cur ' We will not do it you must keep him in arcta custodia in Irons and you may Indict him for these Misdemeanors and by that way you may have him Fined 3 Bulstr 245. Sir G. Reynell's Case The payment of a Debt by a Prisoner to a Payment of the Debt to â— Gaoler Gaoler is not good and therefore in Debt the Defendant pleads That he was a year in Execution and the Plaintiff could not be found whereupon he paid the Money to the Gaoler The Plaintiff replies That he was to be found at D. absque hoc that he absented eo animo to keep the Defendant in Prison And the Defendant to this Demurs because the Marshal may dye and no Recovery can be by the Defendant against the Marshal if he do not pay it over But the Court gave Judgment for the Plaintiff it being not reasonable to pay Money to the Gaoler for the Plaintiff whether he will or not And also they thought it too hard for the Plaintiff to prove payment or to prove Assets in the hands of the Marshall's Executors 3 Keb. 748. Taylor and Baker Sir Tho. Jones's Rep. mesme Case Where the Imprisonment is unlawful the Prisoner is not to pay for his Diet 1 Roll. Rep. 329. Oliver's Case Note If a Prisoner is in Execution and the Gaoler or Sheriff dye he is in abeyance and custody of the Law 3 Rep. Westby's Case A Gaoler is not bound to deliver his Prisoner who is Discharged by the Court until he pays his due Fees A Prisoner acquitted of Felony the Gaoler may take Twenty pence which is called a Bar Fee Every Sheriff Bayliff of Franchise and every other person having Authority of keeping Gaols or of Prisoners for Felony shall certifie the Names of every such Prisoner in their keeping at the next General Gaol-delivery in every County or Franchise where such Gaol is there to be Kalendred before the Justices of the Delivery of the same Gaol whereby they may as well for the King as the party proceed to make delivery of such Prisoners according to the Law on pain of Five pounds 3 H. 7. 3. If the Gaoler shall suffer an Escape the High Sheriff or Gaoler are chargeable therefore CHAP. XVI When one may be said to be in Execution or not And when without Prayer or not In what Cases the Sheriff may break open an House to do Execution or not To what Sheriff and of what place and County shall Execution be Awarded Of a Cap. ad satisfaciend ' for what and against whom it lies and the Sheriffs Demeanor therein and Retorns thereupon Of Execution When one may be said to be in Execution or not When one shall be in Execution without Prayer of the Plaintiff or not IF a Man recover Damages in Action on the Case against J. S. in the Kings Bench the said J. S. being in Custod ' Mareschal ' yet he shall not be in Execution on this Judgment altho' it be within the year before Prayer of the Plaintiff for the Marshal may not take notice of every Where a Man Comittitur Judgment against every Prisoner but upon Prayer of the Plaintiff a Comittitur shall be entered upon the Roll and then he is in Execucution but if the Defendant being taken in Execution be brought on by Habeas Corpus and then an Entry of the Comâ—â—â—tur is made in the Book of the Office its Goâ—â— Hill 12 Jac. B. R. Sir Henry Bellows and Hanford 2 Rolls Rep. 112. If a Man recover in B. C. Debt and Damages against J. S. and had Judgment altho' that J. S. be
a Prisoner in the Fleet for other Causes which is the Prison of the Common Bench and the Warden informs the Court of it and the Court commands him to retain him in Execution until satisfaction of the Judgment yet he is not in Execution because he was not brought to the Bar by Habeas Corpus and viewed and demanded of the Prisoner if he be the same person who is Condemned or not and it is the Office of the Court to oppose him Dier 13 14 El. p. 306. pl. 63. So if the Warden inform the At the Prayer of the Party or not the Court of Chancery that J. S. which is Prisoner there on a Judgment is in his Ward for certain Causes on which the Court commands the Warden to Retorn him in Execution until satisfaction of the Judgment yet J. S. is not in Execution upon the Judgment because this was not done at the request of the Plaintiff but without his Prayer for it may be he will Elect another Execution Dier 306 63. In Debt against J. S. if the Defendant be taken upon a Latitat and committed to the Marshal for default of Bail and after the Plaintiff recovers against him he continuing in Prison yet he shall not be in Execution for this Judgment before the Prayer of the Plaintiff M. 4 Jac. B. R. Car. and Copping If a Man recover in Debt and Outlaw The On Cap. Utlegat Defendant after Judgment and after within the year the Defendant is taken by Cap ' Uslagatum he shall be in Execution for the Plaintiff before Prayer because the Outlawry was at the Suit of the Party 5 Rep. 88. Garnons Case H. 41. El. B. R. Bonner and Stackley Otherwise it is if he be taken in Execution after the year because in that Case he may not have any Capias against him Hill 38. El. B. R. Norton and Sharp But if a Man Outlaw the Defendant in Debt after Judgment and after within the year the Defendant is taken by Cap ' Utlagatum altho' he be in Execution for the Plaintiff prima facie yet he may make Election that it shall not be an Execution for him 44 El. B. R. Shaw and Cutter If Execution by default be Awarded in a Scire fac ' Scire fac ' upon a Judgment in Debt and the Defendant four years after was in the Fleet for other Cause and by Habeas Corpus he was brought up to the Common Bench and being opposed by the Court if he were the person who was condemned ut supra and he grants it he Tho' after the year and day shall be committed in Execution at the Prayer of the Plaintiff as it seems tho' it be after the year and day Dier 214 147. If A. recover against B. by Judgment in the Kings Bench and upon this B. renders himself to Prison and after brought a Writ of Error and had a Supersedeas yet after upon Prayer of the Plaintiff the Court may commit him in Execution Writ of Error Bail altho' that the Record be removed forasmuch as he had not found Bail upon his Writ of Error p. 9. Car. 1. B. R. Symonds Case How and in what Cases the Sheriff may break open an House to do Execution The Leading Case in this Point is Semaines Case reported by my Lord Coke in 5 Rep. and in Crokes Eliz. 98. out of which I shall Collect these â—ollowing Resolutions The Case was A Joynt Termor of an House with B. dies being bound in a Statute The Sheriff Retorns him dead Conusee Sues another Writ to extend his Lands which he had at the time of his death or after and what Goods he had at the time of his death The Sheriff Impanels a Jury to enquire what Goods c. and it was found there were divers Goods of the said deceased at the House of B. in London And the Sheriff came with the Jury to view Appraise and seise them for this Debt and the Defendant Surviving Termor premissorum non ignarus shut the Door and disturbed him to make Execution It was resolved First Upon Recovery the Sheriff may break On habere fac ' possessionem open an House and deliver it to the Plaintiff for the Writ saith habere fac ' seisinam or possessionem And after Judgment it is not the House of the Defendant in Right Secondly upon a Capias ad satisfaciend ' the Defendant may not break open any Mans House to make Execution but in all cases when the Door is open the Sheriff may Enter to make Execution of Body or Goods Thirdly In all Cases where the King is Party so on Hue and Cry if no Door be open the Sheriff may break open the House to take him or to do Execution or other Process as upon a Cap ' Utlagat ' or upon Contempt But he ought first to signifie the Cause of his coming and request the Owner to open the Door but not to break open any Mans House by night Fourthly Upon a Fieri fac ' or Extendi fac ' the Sheriff may not enter into the House of any the Door being shut nor draw a Latch no not after request and denyal yet tho' the Sheriff be a Trespassor in breaking open the House by Fieri fac ' yet the Execution is Good Fifthly The House of any one is not priviledged but for himself and his Family and his own proper Goods not to protect any who flie there or the Goods of another conveyed there and in such case after request the Sheriff may break open the Door but in the principal Case he did not request it and so the shutting the Door by the Defendant was lawful and no Action lies against him And as for the Allegation of premissorum non ignarus it is too general and Notice ought to be specially alledged that he Notice was Sheriff and what he came to do and the Defendant being a Stranger to the Execution he is not bound to take notice of the Sheriffs intent Upon a Fieri fac ' a Barn which stands in the Field may be broken by the Sheriff because it is not part of the Dwelling-house and there needs no request aliter had the Barn been adjoyning and parcel of the House Siderfin 186 187. Pentons Case 1 Bulst 146. Foster and Hole But tho' a Sheriff cannot break open a House being to take Execution by Fieri fac ' yet when the Door is open that he enters then he may and ought to break open the Door of an Entry or Chamber which is locked or break open any Chest which is locked and take the Goods and if he do not an Action of the Case lies against him 1 Browl. Rep. 50. Diversity was taken in White and Wiltshires case where the Execution is lawfully begun there the Sheriff or his Officers may break the House to mak Execution otherwise when it is not lawfully begun If one be Arrested by the Sheriff and he escapeth to his own House
and in Custody if he please and if the Felony be pardoned or the Attainder reversed he shall be in Execution Mo. 178 274. Mich. 10 Car. 1. B. R. Chappel's Case If a man recovered Debt against B. and levy Ca. sa after a Fi. fa. part of the Debt by Fieri fac ' which is Retorned yet he may take the Body of B. by a Cap ' ad satisfac ' for the residue 4 Jac. B. R. Carter and Copping Tho' the King's Debtor be in Execution by his Body or his Land yet the Subject may take him in Execution by his Body for the Statute of 25 Ed. 3. 13. is to be intended of Executions of Lands and Goods and not of the Body which is tout à tout Hobart 160. Shirley's Case Of Escape of one in Execution by Ca. sa Vide tit Escape Sheriffs of Bristol took the Plaintiff by a Cap ' ad satisfac ' and detained him in Prison until the party Defendant and now Plaintiff paid the Money to the Sheriff Per Cur ' This was contrary to his Warrant which is Ità quod habeat denarios in Curia and because he did not so he is chargeable to him that was in Execution Hetley 122. Read and Earlfield A Capias ad satisfac ' was Retornable Quind Retorn ' Mart. and that Writ was Retorned Album breve and a Testatum thereupon and the Defendant taken by it The Testatum issued out accordingly because the Capias was not Retorned And the Court granted a Supersedeas 1 Brownl 40. Supersed ' Reyner and Mortimer Debt on Judgment in B. R. the Defendant One in Execution on Cap ' ad satisfac ' ought not to pay the Money to the Gaoler confesseth the Judgment and Execution above an year and not being able to find the Plaintiff he paid the Money to the Marshal Plaintiff Replies he did not absent voluntarily and the Defendant demurrs Judgment pro Querente The Sheriff on Cap ' cannot receive the Money as on Fieri fac ' nor is the party remediless for he may pay his Money into Court 1 Leon. 140. and have an Audita Querela but the Plaintiff were remediless should the Gaoler be Insolvent Dom ' Rex and Javan He on Indictment and Conviction of a Disorderly House was Committed to the Marshal for payment of a Fine but before actual Imprisonment the Fine was paid to the Marshal yet Resolved this is no good payment and the party was forc'd to pay it over again Per Jones It is doubtful whether Voluntary payment to the Sheriff on Fieri fac ' before Execution of his Goods be pleadable in Discharge but that is Adjudged it is so much less on a Cap ' which is ad satisfaciend ' the party in Court and he is Committed quousque satisfaciat parti not the Sheriff 3 Keb. 788. Taylor and Baker Verdict If the Issue be Whether the Sheriff took J. S. and kept him in Prison under his Custody in Execution by force of a Capias ad satisfaciend ' and the Jury found he took him by force of an Alias Cap ' ad satisfaciend ' Although it is not found he kept him in Execution for the Debt and Damages aforesaid according to the Issue yet this is a good Special Verdict For it shall be intended for the Consequence is necessary of that which is found because he cannot take him but he ought to be in Execution Hobart Foster and Jackson's Case Vide 3 Rep. 67. Westby's Case 5 Rep. Blomfield Garner Frost and Drury's Case How Execution upon a Ca. sa shall be sued upon a Judgment against two or more and he shall have but one Execution and the Execution of one is not sufficient but the Sheriff may take the Body of all in Execution Vid. 5 Rep. 86. Blomfield's Case and 11 Rep. Godfrey's Case CHAP. XVII What Goods c. of whom shall be taken in Execution on Fieri facias or not After the Sheriff has seised how he stands in the Eye of the Law either to bring Actions for the Tortious taking them away or to make satisfaction to the party who recovered Remedy against the Sheriff for the Money to the value of the Goods taken in Execution or not and how to be pursued The Sheriffs Office and Demeanor in executing a Fieri facias and of the Venditioni exponas and the Retorn what shall be a good Retorn on the Fieri fac ' or not Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judgment and after Sale of the Sheriffs selling a Term for years taken in Execution and when such Sale shall be good or not Whether a Scire facias shall go into Wales Of Fieri facias I Shall next Treat of Execution by Fieri fac ' which is a Judicial Writ lying for him who hath recovered Debt or Damage directed to the Sheriff Commanding him to levy the same of the Defendant's Goods And it lies within a year and day but after the year there must be Scire fac ' This Writ of Fieri facias is only against the Goods and Chattels of a man viz. Leases for years Corn growing or sown upon the Land or movable Goods as Cattel Corn in the Barn Houshold Goods Money Plate and Apparel Co. 1 Inst 290. 6. What Goods and of whom shall be taken in Execution by Fieri facias or not Goods pawned shall not be taken in Execution Goods pawned for the Debt of him which pawned them during the time they are pawned Kitchin 226. The Sheriff upon a Writ of Execution may Fornace annexed not seise and sell to the party a Fornace annexed to the Freehold for this would be Waste in the Lessee 37 El. B. C. Day and Austin The Goods Ecclesiastical of Clergy-men are Bona Ecclesiastica not to be taken by the Sheriff but by the Bishop upon a Levari fac ' on a Recognizance 2 Inst 472. If one sell any Goods to another depending an Action against him these Goods afterwards shall not be put in Execution for they were lawfully bought if done bonâ fide and valuable Consideration But if a Fieri facias be directed to make Execution of Goods and after the Teste of the Writ and before the Sheriff executes it the party sells his Goods bonâ fide they may nevertheless be taken in Execution aliter now by the Statutes of Frauds and Perjuries Cro. El. 174. Mo. 21. n. 72. If the party dies after the Writ of Execution Goods in the hands of the Executor awarded and before it be served the Sheriff may serve it of the Goods in the hands of the Executor For by the Execution awarded the Goods are bound and the Sheriff needs not take notice of his Death Cro. El. 181. Parker and Mosse 1 Leon. 144 145. mesme Case After the Sheriff has seised the Goods how he stands in the Eye of the Law Either to bring Action for the Tortious taking them away or to make
a Stranger but a delivery of a Term to the party who recovers by way of Extent without any Sale and therefore the Owner shall be restored For the Sheriff is not bound by this Writ to sell the Term as he is in a Fieri fac ' Pasch 16 Car. B. R. Buckhurst and Mayo Quaere For this is a Sale all the Term being delivered to the party according to the value in gross and not annual 1 Roll. Abr. 778. So if Personal Goods were delivered to the party per rationabile pretium extentum upon Reversal of the Judgment he shall be restored to the Goods themselves for the same Reason Lessee for 99 years by his Will devised his Lease in these words viz. I devise my Lease to my Wife during her Life and after her death I will that it go to her Children unpreferred and made his Wife Executrix and dyed The Wife entred and married with J. S. and afterwards for 140 l. Debt recovered against J. S. on a Fieri fac ' the Term was sold by the Sheriff and afterwards the Judgment was reversed by Writ of Error and awarded quod omnia quae amifit ratione judicii restituantur The Wife the Executrix died And per Cur ' These Points were Resolved 1. The Executory Devise of the Lease after the death of his Wife to the Daughter Unpreferred was good 2. That the Sale made by the Sheriff upon the Scire fac ' did not destroy the Executory Devise 3. That sale made of the Term by the Sheriff stood good altho' the Judgment was Reversed and the Plaintiff the Daughter shall be restored to the value of the Term but not to the Term it self and yet the Vendee had an absolute property in the Term during the Life of the Wife Mich. 27 El. B. R. Amner and Lodington 8 Rep. 96. Manning's Case A Judgment in D. being Reversed in B. R. a Writ of Restitution was awarded and to enquire what were the Profits of the Land recovered à tempore judicii videlicet 7 Aug. 19 Jac. And the Inquisition retorned That they amounted to 10 l. Per Cur ' The Writ is ill for it ought not to have been what the profits of the Land amounted unto from the Judgment For the Plaintiff is not to answer the Profits longer than from the time of the Execution sued Then there was a new Writ of Restitution which was What profits of the Land the Plaintiff who recovered had taken colore judicii praedicti which was 2 Aug. 19 Jac. and after the Reversal thereof Cro. Jac. 698. Sympson and Juxon Form of the Retorn J. G. alii infranominat ' nihil habent nec eorum aliquis nihil habet in balliva mea unde restitutio bonorum catall ' infrascript ' infranominat ' W. M. habere facere potui Necnon 24. l. infrascript ' eidem W. M. fieri facere potui prout c. Virtute istius brevis mihi direct ' tali die anno infrascript ' tenement ' infrascript ' cum pertin ' reseisiri infra-nominat ' T. H. plenam possession ' seisinam inde restitui prout interius mihi praecipitur Of the Sheriffs selling a Term for years taken in Execution and when such Sale shall be good and when not For the understanding how the Law is in this Where it shall be in the Election of the Sheriff upon Fi. fac to him directed to sell a Term. or deliver it on Extent Point you must observe a diversity between the sale of a Term on a Fieri fac ' and Extent on an Elegit for the Elegit is Quod per Sacramentum XII proborum c. per rationabile pretium exentum That they Appraise the Goods and Chattels of the Debtor and extend his Lands and therefore if they are not Appraised by the Jurors he cannot sell them as Dyer so 100. and so is 5 Rep. Palmer's Case Execution by Elegit ought to be per Inquisitionem per Stat. W. 2. c. 18. which saith per rationabile pretium which extends to Chattels and per extentum which refers to Lands In Elegit the Goods are to be delivered to the party per rationabile pretium but in Fieri fac ' the Sheriff must sell the Goods 1 Keb. 566. Glasswell and Morgan In Elegit the Term may not be extended Difference between the Extent of a Term on Elegit and Sale by Fi. fa. without shewing the certainty of the Commencement for after the Debt satisfied the party is to have his Term and Remainder But upon Fieri fac ' the Sheriff may sell and his Retorn is general quod fieri feci de bonis catallis 5 Rep. Palmer's Case Now the Sheriff is to be careful in the sale Recital of a Term in the Sale of it of a Term on Elegit if he make particular Recital that there be no mistake But a general Recital is better As In Ejectment it was found by Special Verdict that the Sheriff upon an Elegit impannelled a Jury who found that the Defendant was possessed of a Lease for 100 years which began at Mich. 2 3 of Ph. M. ubi revera as it was found it begun Mich. 3 4 of Ph. M. cujus quidem H. statum interesse terminum in tenementis praedictis praedict Juratores appretiarunt ad 80 l. and the Sheriff sold it to the Lessor of the Plaintiff for 80 l. Now the Inquest found one thing and he sells another as this Case was and the Sale not being warranted by the Inquest is void But had the Inquest found he had been possessed of such Land generally for the Term of divers years to come and they had Appraised it for so much without shewing the certain beginning or determination it had been well enough for they shall not be compelled to find a Certainty not having means to be informed thereof or if the Sheriff sells all such Interest which the Defendant had in the same Term the Sale had been good 5 Rep. Palmer's Case So is Sir G. Sidenham's Case in B. R. The Inquest on a Fieri fac ' found that the Defendant was possessed of such a Term and mistook the Date and the Sheriff sold it the Sale was not good And on the New Fieri fac ' the Court directed that it should be found That he was possest of a Lease for years generally and yet continuing and that he sold it Cro. El. 584. Palmer's Case 4 Rep. 74. mesme Case W. and his Wife possessed of a Term in Baron and Feme right of the Wife as Administratrix to C. W. being indebted granted it to B. to the use of W. and his Wife for their Lives and afterwards to the use of B. himself W. is sued for this Debt and Recovery against him and a Fieri facias being awarded to the Sheriff he for this Debt of W. sold the Term What Term not extendible to the Plaintiff Per Cur ' This Grant
Writing they may after make it more formal but cannot alter it in substance for it is a compleat Verdict by delivery of it to the Sheriff 2 Roll. Abridgm 712. D'albie's Case Elegit recites the Judgment quod Elegit executionem Elegit vitious upon Omission of the moiety of the Goods and of the Lands and the Writ was Ideo tibi praecipimus quod bona catalla of the Defendants quae habuit die judicii praedicti redditi deliberari fac ' omitting these words medietatem terrarum tenementorum praedict ' tenend ' the said Goods and moiety of the Lands Quousque debitum levetur by virtue whereof the Sheriff delivered the Moiety in Execution Per. Cur ' This shall not be amended and he ought to Amendment have a new Elegit because the Inquisition was taken without Warrant the Sheriff New Elegit having no Warrant to extend those Lands Cro. Car. 162. Walsall and Riches Two Inquisitions taken at several days by Two Inquisitions no one Stat. Merchant several Juries upon one Statute-Merchant were adjudged naught one was taken of the Land and the other for the Lands and Goods 1 Brownl 38. Lessee had a Lease of the value of 100 l. and The Sheriff not to deliver the Lease at another value than the Jury find it after the Teste of the Elegit and before the Sheriff had executed the Elegit assigns his Term to one who assigns it over to the Plaintiff in the Scire fac ' and afterwards the Sheriff executes the Elegit and delivers the Lease to the Plaintiff Tenend ' c. for the satisfaction of the Debt which came but to 43 l. 6 s. 8 d. Per Cur. The Sheriff could not deliver the Lease at another value than what the Jury had found it at And the Sale made by the Sheriff is as strong as if Sale by the Sheriff as strong as in open Market it had been made in open Market and all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after 1 Brownlow 38. Connyers and Brandling Upon Elegit there needs no Liberate Aliter upon a Statute March 117. In every Elegit the Sheriff must Retorn and The Sheriff to set the moieties distinctly set out the Moieties distinctly unless they be Tenants in Common and in that case he must Retorn the special Matter 1 Brownl 38. On Inquisition of a Lease which is but a Sale or extent of a Lease and the diversity On the 2d Elegit the Sheriff can only deliver a moiety of the moiety lâ—ft Chattel the Sheriff may sell it as Goods but if he extends it there shall be no other benefit than as of a Common Extent Id. ib. Two persons Recovered severally against one in Debt He who had the first Judgment sued first an Elegit and had the Moiety of the Land delivered in Execution after the other sued the Elegit and the Sheriff prayed the Advice of the Court Per Cur. He shall deliver but the Moiety of that Moiety which he had at the time of the Writ awarded Cro. Eliz. 482. Huitt and Cogan S. H. acknowledged two Judgments in Debt Two Elegits and the wholâ— Land extended by them to A. upon Bond and was bound to F. in a Bond bearing date before the Judgments F. assigns his Debt to the King A. takes out Execution upon his Judgments viz. two Elegits by one he has one Moiety of H's Lands by the other the other Moiety Then Process issued out of the Exchequer for the Debt assigned to the King Per Cur. It was Resolved 1. This Subjects Title is prior to the Kings and the King is bound by the Statute of 33 H. 8. 2. Pasch 13 Jac. B. C. Rot. 121. Crook's Case Adjudged The two Extents are well executed because both Judgments are in one and the same Term and no priority between them Hardr. p. 23. Attorney General versus Andrews Actual possession ought not to be delivered on Actual possession not to be delivered on Elegit only to enable an Ejectment Elegit the Sheriff ought only to deliver Seizure to enable the Plaintiff to maintain an Ejectment and the Tenant may plead on the Ejectment else the Tenant would be turned out unheard and be remediless yet if Actual possession be delivered it is remediless 3 Keb. 243. Jefferson and Dawson In Elegit the Sheriff ought to deliver the The moiety to be delivered by Metes and Bounds Moiety by Metes and Bounds Hutton p. 16. If the Land be first Executed upon a Statute and afterwards an Elegit upon a Judgment obtained before the acknowledging of the Statute come also to the Sheriff the Moiety of the Land extended shall be delivered to the Plaintiff upon the Judgment 1 Brownl 38. Freeman's Case The Retorn how to be made Vid. tit What Writs need not be retorned 4 Rep. 65. If a man sue an Elegit upon a Recovery and Ca. sa after an Elegit the Sheriff Retorn That he made partition of the Lands of the Defendant by 12 Jurors but he could not deliver the Moiety to the parties according to the Writ because all the Land was extended to another upon a Statute He may after have a Ca. sa for this Retorn is all one with a Nihil Retorned Mich. 31 32 El. Palmer and Knowles If one pray an Elegit and this entred on Record in Banco and takes out the Writ and before the Retorn of it the Record is removed into the Kings-Bench where the Judgment is affirmed within the year and after it is affirmed to the Court that the Sheriff had Retorned his Writ in Banco yet the Plaintiff may have a Capias for that this Allegation doth not appear to the Court and now its impossible it can be Retorned here and so its stronger than if a Nihil had been Retorned trin 15 Jac. B. R. Andrews and Cope Upon Elegit the Sheriff ought to Retorn the Extent and also that he hath delivered the Lands Elegit need not to be Retorned Therefore if the Sheriff by force of an Elegit delivers to the party the Moiety of the Lands of the Defendant and does not Retorn the Writ if now the Plaintiff will bring Action of Debt de novo the Defendant may plead in Bar the Execution aforesaid tho' the Writ of Execution was not Retorned Earl of Leicester's Case 1 Leon. p. 280. Penruddock and Newman The Sheriff Retorns upon Elegit That the Extent by the Bayliff of a Liberty party had not any Lands but only within the Liberty of St. Edmondsbury and that J. S. Bayliff there hath the Execution and Retorn of all Writs who enquired and retorned an Extent by Inquisition and that the Bayliff delivered the Moiety to the party and the Plaintiff by virtue of that Extent entred Per Cur. 1. The Bayliff may make such Inquisition by Warrant from the Sheriff 2. When a Jury by
a Rescous to be out of the hands of the Deputy Bayliff notwithstanding Dyer 7. El. 241. And the Declaration was held good that he sued an Alias Capias without mentioning a Latitat before this Arrest was made by the Deputy Bayliff of Newark But the main Question was Because it doth not appear that the Bayliff had a Power in his Patent to make a Deputy Bayliff No Escape upon a Tortious Arrest The Action is brought in Suffolk against the Sheriff of Suffolk for Arresting the Defendant in the first Action upon a Capias Utlegat ' and suffering him to Escape and the Defendant in the first Action is named of S. in Com' Norfolk and the Arrest is supposed apud S. praed ' so the Arrest is supposed in the County of Norfolk and then it is Tortious and there is not any Escape thereon Per Curiam it s an incurable Error Cro. Eliz. 887. Eden and Floyd In Action or Case on a Rescous The Plaintiff Declaration of Arrest at L. and rescue at W. the same day being 200 miles distant yet not Error declares that A. was indebted to him by Obligation of 20 l. and that he Sued a Writ against him directed to the Sheriff of Cornwal to take A. c. and that the Sheriff 1 Oct. 6. Car. Arrested him at L. in Com' Cornub ' and after the Defendant at Westminster the praed ' 1 die Octob. rescued him out of the Custody of the Sheriff and on non culp ' Verdict and Judgment vers Quer ' he brought Error and Assigned this for Error for that it was impossible he should be arrested at L. and the same day be rescued at Westm ' 200 Miles distant yet the Court will not intend it to be impossible But however see what Reasons the Plaintiff shall have to assign Error on his own Declaration 1 Rolls Ab. 523. Kendal and Kendal Trespass and Assault laid and tried in Somersetshire the Defendant justified by Warrant to the Sheriff of Dorset and that the Plaintiff endeavoured to rescue himself and Issue de injuria sua propria Gold after Verdict prayed Judgment because within the words of 16 and 17 Car. 2. c. 8. there being three Judgments in the Point Wise and Adderly in C. B. Trin. 26 Car. 2. Croft and Tryal shall be where the cause of Action ariseth Winter and Croft and Bays But the Court were not satisfied with these Judgments and resolved that the Statute intended the Tryal where the cause of Action ariseth But there was a Replead ' because the Defendant Traversed absque hâ—c that he was Guilty aliter vel alio modo The reply was he was Guilty aliter alio modo which was a wild Issue 3 Keb. 552 612 Masters and Wood. Pleading In Action on the Case on Escape upon mean Diversity between pleading Rescous in Debt on Escape Averment Process Defendant Pleads a Rescous ever since 6 Car. 1. It hath been held a good Plea Per Cur ' If it be retorned it s a good Plea and it need not be averred in the Plea that it was retorned But in Debt on Escape it s no Plea 3 Keb. 513. Hill and Mountague Bayliff of West In Action on the Case for a Rescous one may If not Guilty may be pleaded to the Sheriffs Retorn of Rescous Traverse c. but Quaere if not Guilty may be pleaded to the Sheriffs Retorn of a Rescous 1 Keb. 258. Rest entr ' 580. le Roy versus Mayor of Hereford Scire fac ' to have Execution of a Judgment in Debt Defendant Pleads That at another time the Plaintiff had sued Execution by Capias ad satisfaciâ—nd ' and that he was taken thereupon Plaintiff replies True it is he sued a Ca. sa and the Defendant was taken thereupon but he presently rescued himself and escaped Replication is good As there is no cause for the Defendant to to have Audit ' Querela when he is escaped and taken again unless it be for a voluntary permission by the Sheriff so there is not any bar for the Plaintiff to have new Execution And tho' it s no good Retorn on a Ca. sa that the Defendant rescued himself for the Sheriff at his own peril ought to have kept him nor any Plea in Debt on Escape yet the Party himself shall never take advantage of his own Tortious Act. And Scire fac ' after the year is well maintainable Cro. Car. 240 255. Robinson and Cleyton Venue Verdict Action on the Case on Rescous is out of the Common Rules of the Court to alter the Venue But it s in the discretion of the Court on circumstances to alter it as Action brought against a Bankrupt may be brought in the County or here where the Commission is awardeâ— Where a Man may lawfully rescue himself 1 Keb. 346. Where a Man may rescue him self and where not There is a difference between a Warrant of Record and a Warrant or Authority in Law for if a Capias be awarded to a Sheriff to Arrest a Man for Felony albeit the Party be innocent yet cannot he make Rescous But if the Sheriff will by Authority which the Law gives him Arrest any Man for Felony who is not Guilty he may rescue himself Coke 1 Insâ— 161. a. Note Four Nobles Fine is a general Fine imposed for a Rescuer Sir Thomas Jones p. 198. In Debt sur Escape versus Vic. Plaintiff declares That J. S. and his Wife were in Execution and that she escaped On nil debet special Verdict sound that the Baron was in Execution and that he escaped and further that the Wife was not taken in Execution being for Debt contracted before Coverture Yet Judgment pro Quer. the Verdict was not in the whole persuant to the Declaration because they found the Hubband Escaped 1 Siderfin 5. Roberts and his Wife against Herbert In Action on the Case upon a Rescous and Escape The Jury find the Deâ—t due to the Plaintiâ—â— the prosecuting the Lâ—â—itat for this Cause the making the Warrant hereupon to the Sheriff c. Cro. Jac. 485. Hodges and Mark. CHAP. XXI Of Escapes Some Maxims and Diversities premised Escapes as to Mean process and as to Execution What shall be or amount to an Escape of a Prisoner out of Execution or not Of Escapes in respect of the Old and New Sheriff and of the Prisoners being delivered over What thing or act shall excuse an Escape or in what Cases the Sheriff or Gaoler shall not be Answerable for an Escape Of Erroneous Process Where the Escape of one shall not be the Discharge of the other and where the oiher shall have Audita Querela or not Actions of Debt or on the Case by the party against the Sheriff for an Escape and who shall have such Action To whom it shall be said an Escape or not at Election Of Escapes ESCAPE is where one that is Arrested or Imprisoned on the Arrest comes to his Liberty before he is delivered
to the party Cro. Jac. 288. Burton and Eyre So the Sheriff shall not take advantage of Error in the Process as in B. R. the Plaintiff had Judgment to recover more than was due to him 2 Sand. p. 100. Jaques and Lockart To this agree Fitz. Tit. bar pl. 253. Debt was brought against a Gaoler for Escape who said the Sheriff did not deliver him lawfully to him Process discontinued But Per. Cur. he is not to meddle whether the Sheriff delivered him lawfully to him So 21 Ed. 4. 23. b. Action against a Gaoler for suffering one condemned to go at Large ' it s no Plea to say that the Process was discontinued before the Judgment given for he was a stranger to it Dier 66. 15. 4 Rep. 84. Southcotts Case If the Prison be broken by the Kings Enemies Prison broken by the Kings Enemies shall Excuse the Sheriff not if done by Rebels and Traitors Escape by sudden force shall excuse the Sheriff this shall excuse the Sheriff from Escape for the Gaoler could not resist them and he can have no remedy over but if a Prison be broken by Rebels and Traitors within the Realm so as the Prisoners Escape this shall not excuse the Escape for the Gaoler may have his remedy over If the Prisoners Escape by sudden Fire this shall excuse the Sheriff for it is the Act of God Dier pl. 66. Where the Escape of one shall be a discharge of the other or not and where the other shall have Audita Querela or not Vide Supra Two are bound joyntly and severally and one is in Execution and the Gaoler suffers him to Escape voluntarily this cannot be pleaded by the other for it is no discharge of the Debt and by consequence the Action lies against the other now where two are bound joyntly and severally one was condemned and taken in Execution and after the other was sued condemned and taken the first Escapes the other shall not have Audita Querela Because it must be an Execution with satisfactio and tho the first may have Debt on Escape against the Sheriff yet there ought to be satisfaction in Fact before Audita Querela lies and perhaps the Sheriff is worth nothing And if the Defendants were sued by one Writ and several Praecipes altho' the Entry should be Quod unica fiat Executio this is intended to be with Satisfaction for he shall have both their Bodies But if two are taken in Execution for Debt and one Escapes Debt lies against the Sheriff and after the Debt recovered against the Sheriff or against the other the other which remains in Execution shall have Audita Querela to be relieved but the Audita Querela Body taken in Execution is no satisfaction for the Debt 6 Rep. 86. Blomfield's Case Cro. Jac. 351. Pendavis's Case Cro. El 478. 2 Bulstr. 321. And so is Hobart express The Escape of one joynt or several Obligor where both be in Execution shall not discharge the other Hob. p. 2. 59 60. And therefore the Escape of one in Execution where two are bound in a Bond is no Plea to the Bond and tho' he escaped by the voluntary permission of the Sheriff so as the Plaintiff is entituled to an Action against the Sheriff yet that shall not deprive him of his Remedy against the other Obligor But if he had pleaded That the Sheriff suffered him to go at Large by the License of the Plaintiff it might have been pleaded in Discharge Cro. Car. 75. Whitacre and Hankinson G. and A. were joyntly bound to T. in a Bond of 7000l The Obligee takes several Actions and had two several Judgments and sued both to Outlawry and A. was taken upon a Cap. Cap. Utleg Utlegat by the Sheriff of D. who voluntarily suffered him to Escape T. brought Debt against the Sheriff and Recovered and received satisfaction and proceeded to take A. but A. brought Audita Querela And he failed in his Declaration because the Satisfaction made by the Plaintiff to the Sheriff was not Specially pleaded viz. Time and Place where it was made for it is Issuable and it may be made after the Audita Difference between Action of Debt and Case Querela purchased But if T. had recovered only Damages in Action of Case for the Escape the Plaintiff should have had no Audita Querela but here he recovered his Original Debt in Action of Debt grounded upon the Escape Mod. Rep. 170. Alford and Totnell The Escape of any one upon a Joynt Judgment Any one on Joynâ— Execution escapes Debt lies for the whole and Execution the Debt lieth for the whole especially if they be in several Prisons as 5 Rep. 87. Blomfield's Case Tho' the Duty wholly survived by the Death of the party escaped before any Action brought and tho' the Executor of the party dead is discharged But if the Death of one before the Action brought doth discharge the Escape By Hales and Rainsford it doth not By Wild and Twisden it doth 3 Keb. 305. Lutterell and Mosedale Of Actions on the Case or Debt by the party against the Sheriff c. for Escape If a Suit be in the Admiralty for a Matter Where to bâ— ought arising super altum Mare and upon this the Defendant is in Execution and escapes the Plaintiff may have an Action for this Escape in B. R. Action on the Case for Escape lies at Common Law but no Action of Debt lay at Common Law but the party was driven to his Special Action on the Case which Action was grounded on a Trespass or Tort and not upon any Contract in Deed or Law 1 Roll. Abr. 536. Brightwight and Taylor But now Action of Debt lies against the Sheriff or Gaoler for an Escape upon the Statute W. 2. c. 11. 1 R. 2. c. 12. 1 R. 2. c. 12. gave Debt against the Warden of the Fleet and so it is in equity against the Marshal And tho' the Statute limits the Action to be brought by Writ of Debt which is by Original yet a Bill of Debt lies by the equity of these Statutes And forasmuch as this Statute gives remedy by Debt it gives Damages also And this Act doth extend to Feme Coverts and Keepers of Gaols for escape of Prisoners in Execution 1 Leon. 17 Cro. Jac. 658. Now we will consider Actions for Escape On Mean Process Execution On Mean Process It is said 1 Roll. Rep. 389 440. Action on the Case lies on Escape on Mean Process Case lies not for Escape on Arrest in Mean Process but upon Execution it doth But in 1 Rolls Abridgm 99. If a man be arrested on Mean Process at the Suit of J. S. and he escape J. S. shall have a Special Action against the Sheriff on this Escape 1 Roll. Abr. 99. May and Proby If a man sue a Latitat to the intent to Declare against the Defendant after Arrest in Castod ' Maresc ' in Action of Debt and the
Sheriff arrests him and suffers him to escape an Action lies against the Sheriff shewing this Special Matter and he shall recover his Damages having regard to the loss of his Debt 1 Roll. Abr. 537. And so is the Bayliff of Newcastle's Case Escape on Mean Process of one in Prifon for want of Bail lies against Bayliff of a Franchise One brought an Action against J. S. before the Mayor Bayliffs and Stewards of N. where the Bayliffs are the Gaolers of the Town-Prison and J. S. is Committed to the Bayliffs on Mean Process for want of Bail and they let him at Large before Judgment and Execution and after the Plaintiff recovers against him The Plaintiff may have a Special Action against the Bayliffs for the Escape for by it he is deprived of the speedy means to have him in Execution after the Judgment 1 Roll. Abr. 99. The Bayliffs of Newcastle's Case On Executions If the Sheriff suffers one taken by him in Execution to Escape the party at whose Suit he was taken in Execution may have an Alias capias against the party that escaped to take him again in Execution or an Action on the Case against the Sheriff Pract. Reg. 145. If the Sheriff takes one by Capias ad satifaciend ' Action lies tho' the Writ be not retorned in Debt if he after permits him to go at Large and Retorns not the Writ yet Debt lies on this Escape for there is a Record of which the party shall take advantage tho' the Writ be not Retorned Cro. El. p. 16. Clipton's Case Action on the Case upon Escape of Escape on Cap. Utleg one brought in Execution by force of a Cap. Utlegat ' is tam pro dom ' Rege quam pro seipso and the party shall have all in Damages An Action on the Case Tam pro dom ' Rege quam pro seipso was brought for that he had a Capias Utlegat ' after Judgment against J. S. and delivered it to the Sheriff of D. to execute it who seeing J. S. and being desired to execute it would not do it but suffered him to go at Large and afterward the said Sheriff Retorned Non est inventus Per Cur. The Action is well brought and the King is to have the benefit thereof as well as the party And in his Declaration he Declaration need not cite the whole Record but begin at the Judgment quod non recuperasses for it is but a Conveyance to the Action and it s not necessary to shew the whole Record and it sufficeth to begin at that which is the Cause of Action Cro. Jac. 532. Parkhurst and Powell Cro. El. 877. Eden and Floyd Cro. Jac. 360. Barret and Winchcomb Who shall have an Action of Debt or Case upon Escape or to whom it shall be said an Escape or not at Election And this is to be considered in the Case of a Capias Utlegat ' or a Capias pro fine or where one shall be said to be in Execution without prayer of the party and where not If a Cap. ad satisfac issue upon a Judgment in On Cap. Utlegat Action of Debt and the Sheriff Retorn Non est inventus and thereupon he is Outlawed and afterwards a Capias Utlegat ' issues out against him upon which he is taken and Imprisoned and after is permitted to go at Large the party who recovered shall have Action of Debt upon this Escape against the Sheriff for he was in Execution against him also because he cannot have a new Capias ad satisfaciend ' And if he escape altho' he was taken at the King's Suit yet the party had such Interest in the Body that Where one taken on Capias shall be in Execution at the Suit of the party without Prayer he shall have Action of Escape against the Sheriff and before the Plaintiffs Prayer to have him in Execution he is in Execution at his election So that if the Sheriff suffer him to go at Large before the Plaintiff hath determined his election it s an Escape against the Plaintiff if he will and an Action of Debt lies Yelv. p. 20. 1 Roll. Abridgm 810. 5 Rep. Garnon's Case A. recovers in Debt vers D. in Banco Communi and sues a Capias ad satisfac and an Exigi post cap. and Outlaws the Defendant who brought Error in B. R. and Judgment affirmed and within the year a Cap. Utlegat is awarded and the Defendant taken and the Sheriff suffers him to escape before the Retorn of the Writ Action lies against the Sheriff The Defendant here being taken by Cap. Utlegat out of the Kings-Bench shall be in Execution for the Plaintiff presently after the Arrest if he will altho' he was never brought into Court nor the Court committed him in Execution for the party 5 Rep. Garnon's Case As to a Capias pro fine Note In all Cases when the Plaintiff may On Cap. pro fine he shall be in Execution at the Suit of the party have a Capias ad satisfaciend and the Defendant is taken by Capias pro fine he shall be in Execution for the Plaintiff if he will without Prayer As a Capias pro fine on Recovery in Assumpsit and also a Cap. ad satisfac retornable the same Term at one and the same Retorn and as to the Capias pro fine the Sheriff Retorns Cepi corpus and as to the Cap. ad satisfaciend Non est inventus If the Sheriff in such case takes the party by Capias pro fine now upon this taking he is in Execution for the party and if the Sheriff let him go at Large he shall answer for the Escape 1 Leon. 51. Hudson and Leigh So if a man be taken by a Cap. pro fine for denying his Deed in an Action of Debt and is suffered to go at Large he who Recovers shall have Debt against the Sheriff for the Capias is ad respondend ' tam nobis quam parti 7 H. 4. 4. So in Recovery on Forger of False Deeds if the Defendant be Imprisoned for the Fine at the Prayer of the King's Attorney if he be suffered to go at Large before satisfaction to the Plaintiff he may charge him for the Escape because he is in Execution to the party upon the Prisal at his election For he ought to be in Execution at the Suit of the party before Suit to the King because the Suit of the party is the Original and the Fine but accessary because of the Suit 7 H. 6. 6. b. But if a man be taken by Capias pro fine for Where no Capias lies in the Original he shall not be in Execution before Prayer of the party the King where no Capias lies in the Original as in Assize with Force c. and suffered to escape before Prayer of the party to be in Execution for his Damages the party shall not have Escape against the Sheriff because he would not be in Execution for
Execution Plaintiff replies that true it is he sued a Capias ad satisfaciend and the Defendant was taken thereupon but he presently Rescued himself and escaped Per. Cur. the Replication is good and it is no reason the Defendant should take advantage of his own wrong tho 't is no good retorn upon a Capias ad satisfaciend that the Defendant Rescued himself nor any Plea in Debt or Rescous escape and the Plaintiff may have as well his remedy against the party as against the Sheriff and the party hath Liberty to begin again de novo by Action on the Judgment or against the Sheriff Cro. Jac. 240. Robinson and Clayton 1. Keb. 660. If a man upon a Capias ad satisfaciend be taken New Execution upon Rescous in Execution and after Rescues himself from the Sheriff and Escapes the Plaintiff may have a new Capias against him and take him again the first Writ not being retorned or filed nor any Record made of the Award and this on a Sci. fac after the year because he shall not take advantage of his own wrong and so he may have Elegit or any other Writ And so it is if the Sheriff had retorned the Writ and Rescous the Plaintiff may have a new Capias against him 1 Rol. Abr. 904. Mounson and Clayton and Radford and Hopkins If one in Execution Escape and the Sheriff Fresh suit makes fresh persuit after him and takes him again altho it be a long time after yet he shall be said to be in Execution again because he shall not take advantage in his own wrong 3 Rep. Ridgways Case Where one is taken lawfully in Execution and after discharged by Writ of Error and after the Judgment is affirmed a new Capias lies not against him but Execution shall be awarded against his Sureties if he will not render himself But if the Execution is reverst because he was never lawfully taken in Execution as if he be taken after the year without any Sci. fac he may be retaken again Lach. p. 292. Sir W. Fish and Wiseman Escape Laying the Action and Declaration Rule Debt upon Escape ought always to persue the first Action Therefore where the Plaintiff as Executor brought Debt against the Sheriff of I. on escape of E. B. against whom they recovered a Debt of 82l as Administrator of I. S. reciting all the Record in Certain It is erroneous For the first recovery was as Administrator of I. S. and the Debt on escape is as Executor of I. S. which cannot be that one should die Intestate and have an Executor Cro. Jac. p. 394. Sir H. Slingsy vers Lambert The Plaintiff declares against the Sheriff of Devon for an Escape at Exeter which is a City and County it self and not part of the County of Devon yet good after a Verdict for it shall be intended the Defendant had the Custody of his Prisoner in Exon ' either by Hab. Corp. Action against one Sheriff of London and declares he â—as in Custody of both or on fresh persuit Sider 364. Hopping and Holmes The Plaintiff declares that the party was in Custody of both the Sheriffs of London and the Action is brought against one of them the Prisoner that escaped being in Ludgate in the Custody of the Defendant only the Declaration is good for the Prisoner was in Custody of both the Sheriffs tho he was in the Custody of the Defendant and it stands well enough with the Record and the words existen in custod is a good Averment that he was in Custody and the word ut prefertur do not hurt the Averment Stiles Rep. 297. Drinkwater and Pack Declaration Rule If the Party in his Declaration doth shew he hath no Cause of Action in such Case if the Sheriff by force of a Capias to him directed doth Whether the Sheriff shall take advantagâ— of the insufficiency of the Count. take the Party in Execution and suffer him to Escape no Action of Debt lies against the Sheriff for this Escape But in Dyer 67. a. 2 Bulst 62. 9. In Action on Escape against the Sheriff or Gaoler they shall not take advantage of the Insufficiency of the Count but shall answer to the Escape The same Law is of an Error in the Record or Discontinuance because they are Strangers to it no more than a Stranger shall falsifie a Recovery by matter Dilatory Dyer 67. a. Rule The Declaration in Escape ought to mention the first Judgment or the Plaintiff ought to shew he had recovered on Judgment And it is not sufficient to say qd ' recuperasset The Case was qd ' cum the Plaintiff recuperasset vers J. S. c. prout patet per Recordum and that upon this a Capias issued out and J. S. was taken by the Defendant and Escaped It is too general for non constat by the Declaration that any Judgment was ever given against him and then he was not well taken in Execution 1 Sanders 38 39. Jones and Pope Sider p. 307. 2 Keb. 63. Mesme Case 1 Sanders 34. Careswells Case And tho' the Sheriff be in Contempt if he let him Escape yet no Debt ariseth unless there were a Judgment and tho' it be said the Sheriff took him in Execution and for Debt unde convict ' est yet this is but a recital of the Writ Declaration in Escape may be according to the Writ viz. that he Escaped out of the Custody of the Sheriff or Bayliff this is in Action on the Case Siderfin p. 332. In Case Declaration That the Sheriff the Defendant had arrested L. at the Suit of the Plaintiff by a Lat ' sued out of the Court the 21 of January and that by the Escape the Plaintiff had lost his Debt of 119 l. Upon not Guilty the Jury find that the Writ was Teste 28 of Novemb. But revera sued out of Court the 21 of Jan. and that Habeas Corpus was sued by the Plaintiff retornable Mense Pasche with intention to declare then against the said L. But the Defendant upon another Writ of Habeas Corpus without the assent or notice of the Plaintiff sued and retornable Tres Pasche duxit the said L. ad respond ' to the Plaintiff in Trespass ac etiam bille of 19 l. where the said L. was in Custody of the Defendant ad respond ' the Plaintiff in billa de 119 l. and so the said L. was permitted to Escape Moved in Arrest of Judgment because the Action is founded upon an Arrest at the Suit of the Plaintiff by virtue of another Writ than the Writ found by the Jury and the Plaintiff might have declared otherwise videl ' that he had sued a Lat. Teste 28 Novemb. But per Cur. there is veritas Legis veritas Facti and the Declaration is according to the verity of the fact and by necessity of Law the Teste of the Writ ought to be in Term and so is the course Judgment pro Quer ' Sir Thomas
Jones Rep. p. 149. Walbury and Saltonstal Tho' it be not shewn that the Prisoner did It is not necessary to be shewed that he did not appear at the day not appear at the day for if he did not appear then the Plaintiff was at no loss yet that is not Error in the Declaration for tho' he did appear yet the Tort is not purged Cro. El. 289. Appleton and Burr A Declaration is against a Sheriff that he suffered his Prisoner to Escape and had retorned Cepi Corpus parat ' habeo whereas revera he had not the Body at the Retorn of the Writ Quaere if this Declaration was for the false Retorn or for the Escape or for both To this Declaration the Defendant might have pleaded the Stat. of 23 H. 6. but he demurred generally and so has lost the advantage of the Statute which is a private Statute and the Defendant has confessed the Escape by the Demurrer vide supra Sanders 154 155. Benson and Welby So that if the Escape be well alledged the Court will not countenance Error in other Non Formalities The Declaration was whereas he had brought a Writ of Debt against M. W. and recovered and shews all the matter of the Escape c. and then it is as usually in the Common Bench unde queritur qd ' cum he brought a Writ of Debt against M. W. c. and saith not the aforesaid M. VV. and so it may be a Stranger and therefore not good Cro. Jac. 188. Burton and Eyre But upon Conference with the Prothonotaries Course of Declaration C. B. it is the common course in Actions on the Case after recital of the Writ in the unde queritur to begin de novo and not to say praedict ' c. And Per Curiam both courses are well enough And so it is tho' there be an Error in Fact Error in Fact not to be assigned on the Escape As in the Case of Jaques Car. 2. which was On Non Omitt as Capias and Escape The Capias was of 50 l. and to answer 5 l. Alano Lockart Prothonotary And the Judgment in Debt on the Escape by default is 50 l. and this was assigned for Error for the Judgment and Capias was but of 50 l. as to the Party But Non allocatur for upon the whole the Judgment is right and but an Error in Fact which cannot be assigned on the Escape 2 Keb. 646. 2 Sanders 98. Jaques and Keble In Escape against the Marshal the Plaintiff Declared That whereas J. S. was indebted to him by Bond and thereupon arrested by Latitat and put in Bail and the Plaintiff obtained a Judgment who thereupon in Discharge of his Bail did render himself to Sir John Lenthall in Execution and afterward Sir John Lenthall the Marshal suffered him to Escape To this it was excepted that he rendered himself to the Marshal whereas he ought to say he rendered himself to the Court for it is the act of the Court that turns him over to the Marshalsea and a Judge can only take and discharge the Bail But it s here that he rendered himself to Sir John Lenthall in Court Which is well enough Stiles Rep. 330. Child and Sir John Lenthall As to Declarations upon Escape after delivery from the old Sheriff to the new Sheriff and the manner of declaring I shall cite two Cases Declaration as the old and new Sheriff which will much inform us in that point The Declaration was That he was in Execution of the old Sheriff and delivered to the new Sheriff and then committed to the Marshal by Habeas Corpus and then suffered to Escape Cro. Jac. 587. Dowdswell and Sir G. Reynel This exception was taken to the Declaration It must be shewed that the old Sheriff delivered him cum caus to the new Sheriff because it was not shewed that the ancient Sheriffs delivered him in Execution with the Causes of Imprisonment to the new Sheriffs for otherwise it is an Escape in them and not in the Marshal as in VVestbies Case For it may be he was delivered per Indenturam debito modo confectam for other Causes and this Cause was not mentioned And a Declaration ought to be certain to every intent and tho' it be said virtute cujus he was in Execution under the new Sheriffs yet that does not help it for it is but the conclusion of the Premisses and if the matter before does not shew he was in Execution that pretextu cujus will not serve In Debt on Escape The Original and Capias which was retornable Cras Martin in Michael ' 78. was set forth And that Sydly in exit ' ab Officio in December after the Retorn delivered him over to C. and it appears not that the Prisoner was ever in the Custody of Sydley But by VVindham he could not else be turned over and it is expresly said he was in Custody and it may be no Writ was retorned by the Sheriff and tho' in Law he cannot be in Custody till the Retorn yet that shall be now intended neither need it be said that the Sheriff was continued in his Office above a year 1 Keb. 632. Hargol and Creamer Of Declaring in Escape upon Outlawry there Declaring in Escape on Outlawry are also two Cases which will greatly direct us One was Outlawed by the Plaintiff and by Habeas corpus he was delivered to the Marshalsea and escaped Now the Declaration may be for the party only and it need not be an Action on the Case tam quam tho' here is a Contempt to the King Brigdman's Rep. 8. Moor and Sir George Reynell The Plaintiff in Debt on Escape declares of a Recovery of 13 Utlawed 15. and that he was taken by Cap. Utlegat 18 Car. 2. after the year and doth not Declare that he was in Custody nor that he was ever charged in Execution at the Suit of the party by Prayer on the first Judgment in which Case tho' an Action on the Case will lye yet not Action of Debt And after Verdict pro Quer ' Maynard moved in Arrest of Judgment That this taking after the Year after the Recovery and Judgment on the Outlawry does not make the Prisoner in Execution at the Suit of the party without Prayer because it may be Intended that the party intended to have other Execution than the Body And relied on Frost 's Case 5 Rep. 89. That until election made he is not in at the Suit of the party Siderfin 380. Buckland and Kelland 2 Keb. 408. mesme Case But upon Cro. El. 850. Shaw and Cutter's Case Tho' the Capias Utlegat ' be after the year yet Debt â—ies upon Escape without any Prayer of the party entred on Record Declaration on Escapes in Inferiour Courts and 706. Leighton and Garnon's Case The Court inclined that tho' the Capias be after the year yet Debt lies against the Sheriff for the escape without any Prayer of the party
by fresh persuit no more though the Information be depending before the taking so that the Officers diligence appear 2 Keb. 384. the King against Sir J. Lenthall Fresh persuit Pleaded The Plaintiff counts of an escape in London and the Defendant Justifies the retaking in Devon so that the escape at London is not answered it s naught upon Demurrer but when the Defendant Pâ—acâ— by his Replication denies not the fresh Suit but by Protestation relies upon this that he was out of the view which is not material for it is not the form of Pleading to say he had him in his view c. it appears not to the Court that he had cause of Action now this Bar is sufficient for the matter but insufficent for the form and there being no Demurrer but a Replication no advantage shall be taken of the Bar for matter of form 3 Rep. Ridgways Case Popham p. 41. Traverse That he died after fresh persuit â—ut saith not ante 〈◊〉 bille mesme case Action on the Case for voluntary escape Defendant Pleads he escaped in November by negligence and Traversed not voluntarily and that he freshly persued and took him and that postea videlicet 27 Aug. he died to which the Plaintiff Demurred because before the escape and especially for the void Traverse But Per. Cur. the alledging the voluntary escape is immaterial and the Sheriff chargable without it and he need not Traverse the voluntary escape but because he doth not say he died ante exhibitionem billae Judgment for the Plaintiff 3 Keb. 55. Read and Bovey The Plaintiff declared of an escape voluntary the Defendant shews a negligent escape ' its good without a Traverse Latch p. 200. Harvey and Reynell In Debt on escape Plaintiff declares that the Defendant Sheriff of Devon suffered one C. who was in Execution to escape in London 18 December Defendant Pleads that the said C. escaped the 16 December in Com' Devon and that he freshly persued him and retook him the 17 December and reteyned him again in Execution absqueâ—â—c that he is guilty alit ' vel alio modo On Defendant must answer to the Escape mentioned in the Declaration as to time c. Traverse alit vel how extend alio modo On nil debet in Escape which may be given in Evidence this it is Demarred because the escape is supposed to be the 18 December and he Pleads the escape 16 December and the retaking the 17 December and so he answers not to the escape mentioned in the Declaration for the Traverse aliter vel alio modo doth not answer to the Time but to the manner of any thing alledged and Per Cur. the Plea is ill Cro. Eliz. 439. Ridgways Case On nil debet Pleaded in escape fresh persuit may be given in Evidence so a release or any thing that destroys the Duty Vid. supra Tit. Evidence 3 Keb. 308 Lutterel and Mosedell Now as to other Pleas and the formality of pleading what shall be good or not the Cases following are of great consideration to instruct us in that useful Learning Debt for an escape is not within the Stat. of Statute of Limitations Limitations tho Action on the Case is the words of the Statute are All Actions of Debt grounded on any Lending or Contract without specialâ—â— shall be brought within six years 1 Siderf 205 206. 1 Sand. 38. Now first This Action is not founded on any Lending or Contract here is a Duty created by the Law without Lending or Contract 2 Inst 388. 2. This Action is founded on a Specialty viz. on a Statute Law for at Common Law no Debt on Escape lay against a Gaoler c. of one out of Execution and the Statute of 1 R. 2. c. 12. gives the Action of Debt against the Warden of the Fleet and this Statute by Construction extends to all other Gaolers and Sheriffs 1 Sand. 37 38. Jones and Pope Acknowledgment of Satisfaction on Record is Acknowledgment of Satisfaction on Record a good Plea The Sheriff brought an Action on the Case against J. for making his escape out of Execution Defendant pleads Confessing all the Matter and that after this Escape he at whose Suit he was condemned had acknowledged satisfaction on Record To which it was demurred Per Cur. The Plea is good because the Defendant is to be charged for that the Plaintiffs are chargable with the Debt and not otherwise and the Defendant hath pleaded Satisfaction acknowledged on Record which may by his means and is not denied for otherwise the Plaintiff might have shewed the Special Matter by Replication Cro. Eliz. 237. Salteston and Payne Accord with satisfaction is no Plea In Scire Accord with satisfaction fac on Judgment in Escape on Oyer the Defendant pleads Executio non because that after the Judgment the Defendant assigned the Obligation of Security of T. the party who escaped which the Plaintiff received and accepted To which the Plaintiff Demurred And per Cur. Accord with Satisfaction is not pleadable after a Judgment 3 Keb. 255. Poole and Mosedell Nul tiel Record is a good Plea Debt on Escape against the Sheriff upon a Nul tiel Record Capias Utlagat ' after Judgment Defendant pleads there was no such Record of the Debt and Damages It is a good Plea on Demurrer 1 Brownl 51. Maddox and Young Hob. pag. 209. In Debt on Escape one may plead That the Command of the Plaintiff Plaintiff commanded him to let him out of Execution Cro. Car. 329. in Vesey's Case In Scire fac on a Recognizance as Bail in a Escape by consent of the Plaintiff pleaded Writ of Error in the Exchequer Chamber The Defendant pleads That the Plaintiff sued a Capias ad satisfaciendum out of the Kings-Bench to the Sheriff of Middlesex and he was taken in Execution thereon and suffered to escape by the Plaintiffs consent The Plaintiff demurs because they do not lay a place where the Court was held nor where the party escaped by Consent 2 Keb. 567. Mod. Rep. 19. Prinn and Smith Payment of the Money to the Marshal is no Bar but payment to the Sheriff on a Fieri fac is good for he is commanded to levy the Money c. but no such Authority is given to the Sheriff Sir Tho. Jones p. 97. Taylor and Baker In Escape the Defendant pleads a Release of him who recovered to the Prisoner being in Execution it s holden no Plea Nil debet in Debt on Escape 19 H. 6. 14. As to Traversing and Forms of Pleading In Trespass and Imprisonment the Defendant That he escaped by the Sheriffe License is good without a Traverse Justifies by virtue of a Capias and the Plaintiff did afterwards escape and he being Sheriff did follow him by virtue of the said Warrant and took him upon the Capias The Plaintiff replied He escaped by License of the Sheriff and Traverseth the latter taking by virtue of the
Warrant Per Cur. The Traverse is idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put in Issue and not the Traverse 1 Brownl 197. Hatton and Hunn Action on the Case upon Escape was brought against a Serjeant of London He pleads that the Sheriff commanded him to deliver his Prisoner to him which he did and Traversed that he was guilty of the Escape Aliter vel alio modo Per Cur. The Serjeant is an Officer of the Sheriff and the usual manner of Pleading is to plead That the Prisoner was in custody of the Sheriff and Sheriffs in London may make their Houses their Prisons as well as the Counters and the Bar was good but the Traverse was ill Siderfin Traverse That he is guilty of the Escape Vid. supr p. 318. Husband and Cole 2 Keb. 147. mesme Case This Plea is a Confession and avoidance and the Traverse is ill But per Cur. here is no Escape confessed and therefore Not guilty should have Not guilty been pleaded and not to take a Traverse Debt against the Sheriffs of London upon Escape of A. The Plaintiff Declared on an Execution by force of the Recovery and that the party was in the Prison of Ludgate sub custod ' J. S. J. D. then Sheriffs 1 H. 8. and that he so continued sub custodia J. B. J. G. 2 H. 8. and so continued sub custodia J. N. J. L. 3 H. 8. and then was suffered to escape J. N. and J. L. pleaded That before the Escape at such a Day Anno superiùs in Narratione specificato the said J. D. and J. S. adtunc Vicecomites suffered him to Escape Per Cur. It is no Plea because there was three years specified in the Declaration and it shall be taken that it was the first or third of H. 8. Plea to be precise as to time when they were out of their Office yet it is meerly induced by the adtunc Vicecomites which shall lead the Intendment to be in the year in which the Defendant supposeth they were Sheriffs But per Cur. that sufficeth not but the Plea must be alledged in Fact and therefore the Defendants meaning to discharge themselves by former Escape which was not in their time should alledge it precisely Dyer 66. Serjeant Minor's Case In Debt for an Escape of one in Execution Defendant pleads Nil debet and after Issue and the Cause entred for Trial the Defendant would acknowledge the Action with relicta verificatione But per Cur. this he may not do without the assent of the Plaintiff for many defects are aided by Verdict Sir Tho. Jones Rep. 156. Marshall and Cooling's Case The Plaintiff chargeth the Defendant with an Escape 13 Ap. 18. Jac. and the Defendant pleades Escape 29th Feb. 16 Jac. which was a year and two days before the Escape alledged by the Plaintiff to which the Defendant made no answer and altho' he concluded it was the same Where the time is material the conclusion that it was the same Escape will not make it good Escape which makes the Plea good where the time is not material yet in the principal Case the time seems to be material for the Defendant the Marshal Pleads that the Prisoner was committed to him by Habeas Corpus and that he remained in his Custody from such a time till such a time during all which time the Plaintiff never prayed to have the said Prisoner in Execution Bridgmans Rep. p. 7. Moor. vers Sir G. Reynel In an Escape The Defendant confessed that Supersedeas pleaded but the Retorn of the Wit mistaken H. was in his Custody by Latitat retornable Mercurij Crast Animarum but said that a Supersedeas came to him which varied from it reciting a Writ Retornable die Veneris Crastino Animarum for which variance the Plaintiff Demurred as being not the same Action which the Court agreed 1 Keb. 234. Earl of Bedford against Austin In Action on Escape in Debt on Judgment Protection Defendant Pleads That after he was arrested he was discharged by Protection shewed to the Bayliff as Servant to the Earl of Bath Per Cur ' the Plea is naught 1 Keb. 660. Cockman and Symonds In Action on the Case on Mean Process Sheriff Pleads That a Writ of Priviledge came to him Teste Marquess of Newcastle Retornable at Privilege of Sessions pleaded Sessions Which recites that by the Law of England persons shall be priviledged in going to and retorning from the Sessions To which the Plaintiff Demurrs and the Court held the Plea to be ill yet the Court were in doubt upon a second motion whether the Priviledge shall extend to such inferior Courts Also it is ill pleaded not shewing where the Writ issued nor where the Sessions was nor whether the Discharge were in Session Siderfin p. 269. Clark and Mollinuex 3 Keb. 845. Mesme Case In Action on Case for Escape and false Retorn The advantage of pleading the Statute 23 H. 6. lost by Demurrer if the Sheriff Demurs generally upon the Declaration he loseth the advantage of Pleading Stat. 23 H. 6. c. 10. vide supra Benson and Welby Venire In Action of Escape Venire shall not be charged nor in Debt For these may be all over England 1 Keb. 65. Wright and Martin Stiles Rep. 341. By the Marshals Priviledge the Jury on Escape were changed out of London into Middlesex 2 Keb. 818. Crook and Mosedale Hale said he knew him after Imparlance ousted of this Plea but here the Court would not put him to Plead it but granted a Tryal in Middlesex and Escape in London being so every where Cro. El. 625. Venire is most proper to be from the place where the Escape was Action is brought against the Defendant as Sheriff for the Escape of R. in Norfolk and falsely retorning non est inventus in B. R. the false Retorn is not the principal but the Escape is the cause of Action and the false Retorn which is also made in Norfolk is but Aggravation the Party may lay it in either County 2 Keb. 771. Russel and Sucklin Where the Venire and Retorn differ its not good Hetly 83. Per Cur. No Cost shall be on Non-suit in this Action by the Stat. 32 H. 8. Of Escape being pleading in Bar. It has been adjudged as well on Scire fac as in Debt that to plead he was in Execution and contra voluntatem of the Sheriff escaped is no Plea No tho' it were by permission vid. ◠Keb. 305. Ridly and Morslee Cro. Car. 24. Robinson and Clapton Vilner's Case Allenson and Butler Symonds and Cottmar To a Scire fac ' on Recognizance as Bail in Escape by consent Error Defendant Pleads that the Plaintiff after Judgment sued a Capias ad satisfaciend ' out of the Kings Bench and that the Defendant was thereupon taken and that he escaped by consent of
to Reverse the Judgment and upon his Prayer the Court bailed him that he might prosecute the Suit with effect But this Bail was not entred of Record And the Court held it good Evidence The Escape supposed here is for Bailing is the Act of the Court. letting him go by Bail which is the act of the Court and not of the Marshal and may well be given in Evidence Cro. El. p. 5. Vast and Gandy By Wray upon Execution sued after Verdict Bail upon Attaint altho' the Party Sues Attaint the Court usually does not Bail him for the Verdict is intended true till reversed but on good Considerations they may And tho' the Bail be not entred yet the Plaintiff for his benefit may cause it to be entred and then he may have a Scire fac ' on the Bail and so is not at any mischeif The Party being charged in Mean Process when Committitur to be proved he was in Custody the Evidence may be good without proving any Comittitur but if he were in Execution the Comittitur upon the Roll shall be proved Siderfin 237. the King and Povey In Debt sur Escape if the Defendant Plead No Escape pleaded Evidence no Arrest which must be proved in Evidence on Escape for Mean Process nul Escape he cannot plead in Evidence no Arrest Tryal per Pais 174. Clayt 34. Verdict In Debt on Escape if the Plaintiff Declare of Escape against two and sound against one only an Escape of two and it s found one only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment Siderfin p. 5. Andrews's Case In Debt on Escape if the Plaintiff Declare of the Escape of Baron and Feme out of Execution On the Escape of Baron and Feme the Jury find the Baron only in Execution on Judgment for the Debt of the Wife dum sola and the Jury find the Husband only was in Execution yet the Verdict is good and the Plaintiff shall have Judgment The Jury found not that the Wife was taken in Execution being for Debt contracted before Coverture Siderfin p. 5. Roberts and Herbert 1 Keb. 371. Mesme Case Though the Verdict find an Erroneous Process Verdict finds an Erroneous Process yet the Sheriff shall not take advantage thereof As in Debt on Escape and special Verdict finds an alias into another County without a Capias in the proper County and that I was in Execution and escaped Judgment pro Quer. on 2 Cro. 1. Pl. 1. Co. Dr. Druries's Case because the Sheriff is a Stranger and shall have no advantage thereof 3 Keb. 629. Hide and Hillar One rescued himself and escaped and the Verdict on Rescous before the day laid or after Sheriff brought Action on the Case On not Guilty The Jury sound he was arrested circa the 26 of Feb. and then and there rescued himself Per Cur ' be the Rescous before or after the day supposed in the Declaration its good enough so as it be before the Suit commenced Cro. El. 53. Sheriff of Norwich and Bradshaw Consideration on Assumpsit about delivery of Prisoners in safe Custody and saving harmless of Escapes The Sheriff having one in Custody takes Assumpsit of J. S. to deliver the Prisoner to the Bayliff in safe Custody this is a good Assumpsit and no Escape For the Court will not intend that the Bayliff was absent from the Prisoner Siderfin p. 132. Benskin and French In consideration the Plaintiff who sueth as Bayliff would permit J. S. taken in Execution to Rest in the House of N. till Friday next if he Escape the Defendant would pay the Debt By Hales The Consideration is good in Mean Process but being in Execution its ill But the Action must be brought by the Bayliff or nobody but consideration to make a Special Bayliff is sufficient to save harmless This is no Bond or Promise taken of the Prisoner nor of any for him therefore ' its not within the Statute 2 Keb. 805. Feake and Carter 1 Leon p. 132. Palmer and Smalbrook The Bayliff assumes to save the Sheriff harmless of all Escapes is not good The Declaration is That a Ca. sa on a Judgment was awarded against the Defendant to the Sheriff of Suff. who directed his Warrant to the Plaintiff as his Bayliff to serve it and that the Plaintiff assumed to the Sheriff to save him harmless of all Escapes and that by force of the Warrant he arrested the Defendant and the Defendant intending to make the Plaintiff to be charged escaped for which the Plaintiff in the first Action brought an Action against J. C. the Sheriff upon this Escape and recovered and J. C. brought this Action on the Assumpsit It was moved in Arrest of Judgment that there is no sufficient Cause in the Declaration to maintain an Action for tho' the Sheriff may have Action on the Case against the Prisoner that Escapes yet the Bayliff shall not have it Per Cur ' For the Bayliff was not chargeable to the Sheriff by Law but by Assumpsit and this being his voluntary Act shall be no cause to charge the Defendant but shall only make himself chargable But they agreed If the Bayliff had been chargable by Law without such Promise Action lay for him against the Defendant who caused him to be charged Cro. El. 349. Allerton and Harwood In Consideration he would permit him to go at Large and of 2 s. paid he promised to pay all the Mony in which the Party was condemned in Execution Per Cur ' the Consideration is not good being contrary to the Statute of 23 H. 6. and that a Promise and Obligation was all one and tho' it be joyned with another Consideration of 2 s. yet being void and against the Statute for part it is void in all Cro. El. p. 199. Tetherstons's Case Pl. Dive and Manningham Plaintiff declared Whereas the Defendant was arrested at his Suit on Process the Defendant in Consideration that he should be permitted to go at Large promised that he would appear at the day of the Retorn of the Prisoner or would give him 10 l. and he did not appear at the day Per Cur ' Its a good Assumpsit being made to the Party which had Authority to dispense with his appearance Had it been made to the Sheriff or to any other to his use it had been within the equity of the Statute of 23 H. 6. Cro. El. 190. Millward and Clarke Of Escapes of Felons All Prisoners are such either by Matter of Record or Matter in Fact By Matter of Record when one present in Court is committed to Prison by the Court. There if the Gaoler has not him ready it s an Escape without more enquiry unless he had reasonable excuse and the Judges will set the Fine presently By Matter en fait a Man is a Prisoner when he is arrested by Sheriff Bayliff Constable c. and Escapes there the Jury ought
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