the Sheriff must make a Warrant to the Bayliff of the Liberty to make deliverance and if he will not the Sheriff may enter and do it If the Distress be taken extra Libertates and impounded within the Sheriff upon Plaint made may presently enter and make deliverance Co. Mag. Chart. 139. If they are impounded in a Castle or House Sheriff may break Castle House or Close to make Replevin the Sheriff may break it and make Replevin and he cannot retorn he was resisted for he may take the Posse Comitat ' Cok. 2 Instit 105 194. If the Beasts be imparked in a place inclosed which had a Gate open and the Writ comes to make Replevin and the owner stands at the Gate to shoot him he may break the Close to make Replevin 2 Roll. Abr. 565. b. For necessity the Sheriff may enter a Plaint Replevin made presently before himself and after retorn it in the County Court that so the Cattle may not perish 1 Keb. 205. He may take a Plaint out of the County Court and make Replevin presently and not stay till the next County Court which is holden from Month to Month. Cattle being distrained for Rent or Damage The manner of Replevying Fesant c. The Owner of the Cattle must go to the County Clerk or some Deputies in the County for the granting out of Replevins for a Replevy to be directed to the Bayliffs to replevy them and the Party must be bound in an Obligation to the Viscount to prosecute his Action against him or them that did take the Cattle or to make retorn of the same Cattle to the Distrainer if he by Justification or Avowry do recover And if he pursue it not or be found against him then he that ook the Distress shall again have the Distress and shall have a Writ from above de Retorn ' Habend ' in such Retorn ' Habend ' case If the Goods cannot be taken by the first Replevin then issues forth an Alias then a Pluries then a Toties then a Withernam If the Sheriff retorn that he cannot replevy the Cattle because Retorn that they are Eloyned or he cannot have the view of them for the Sheriff must make enquiry if the Retorn be true and if so then he must make a Precept to the Bayliff in Withernam i. e. to take as many other Cattle and he may have an alias and a Pluries Withernam and Withernam so in infinitum but hath no other remedy in the County This sort of Replevin may be retorned out of the County into the Court of Common-Pleas by Re. fa. lo. Recordare fac ' Loquelam The Sheriff upon a Retorn ' Habend ' may enquire the Kinds of the Cattle if the Count or Avowry be uncertain 1 Leon. 193. Rigden Palmer In a Replevin no such Beast is not a good What is a good Retorn in Replevin or nor Retorn but Averia Elongata or Null ' Venit ex Parte Querentis ad monstranda Averia 2 Leon. 67. Sheriff on Replevin of Goods saith that none came to shew him the Goods it s a good Retorn 1 Keb. 184. for he cannot know the Goods without shewing of the Party If J. S. sue a Replevin to the Sheriff and Sheriff makes Replevin of a Stranger he is a Trespasser shews him the Cattle of J. N. and saith they are his Cattle and he makes Replevin of the Cattle he is a Trespasser to J. N. and the Sheriff may have an Action of Trespass against J. S. for his false Information For the Sheriff at his Peril must take notice whose Cattle they be but if there be any fraud in the matter he may aver that 3 H. 7. 14 H. 4. 1 Brownl 211. Buckwood and Beal If a man have Judgment to have a Retorn upon a Nonsuit in a Replevin and the Plaintiff brings a second Deliverance this is a Supersedeas of the Retorn yet the Defendant in the Replevin shall have a Writ to enquire of Damages but if he have Judgment in the second Deliverance then it shal be retorned Irreplevisable and he shall recover Damages Hill 43 Eliz. D. C. Goldsborough p. 185. If the Sheriff doth not his Office in such Cases an Attachment to the Coroners lies against him Reg. Orig. 81. a. As to the Sheriffs taking Pledges vid. sab titulo Pledges infra If the Sheriff retorn fugavit in another County or that the Bayliff of the Liberty retorns elongata or that he cannot have the view in all these Cases a Withernam shall be awarded 1 Rep. Withernam 145. b. Ann Mayowes Case The Writ of Withernam ought to rehearse the Retorn of the Sheriff At Common Law a man might have been non-suited in Replevin and have had new ones in infinitum But West 2. c. 2. restrains the Plaintiff for having any more Replevin after No more Replevin after Non-suit but Second Deliverance Non-suit but gives the Writ of Second Deliverance Cok. 2 Inst. 240. This Writ is a Supersedeas in Law to the Sheriff that he make no Retorn to the Defendant on the former Non-suit Cok. 2 Inst 341. This is taken away as to Avowry for Rents by 2 Stat. K. Charles 2. In a Replevin if the Process continue until a Pluries issue out of Chancery and the Sheriff retorn Retorn that the Defendant claims Property upon this in B. that the Defendant claims property altho' no day is expresly given by this Writ to the Parties but to the Sheriff only to excuse his Contempt for not serving the Process before yet upon the retorn of this Writ the Parties may appear and Plead viz. The Plaintiff may declare and the Defendant may plead to it and it shall not be erroneous for there is no other Writ to be served after this Writ therefore if the Parties might not plead upon this it would be a great mischief So if the Pluries be retorned Tres Michaelis and nothing is done till Paschoe afterwards yet at this Term the Parties may appear and plead if they will 1 Rol. Abr. 581. Gawen and Ludlow Where the Defendant when the Sheriff comes Where in a Replevin the claim of Property by the Defendnat shall hinder the delivery of the Goods by the Sheriff to make Replevin claims Property the Sheriff cannot proceed for it is a Rule in Law the Property ought to be tried by Writ therefore in that Case where the Trial is by Plaint the Plaintiff may have a Writ de Proprietate Probanda directed to the Sheriff to try the Property and if it be found for the Plaintiff the Sheriff is to make deliverance if for the Defendant then he can no further proceed Cok. Litt. 145. b. And to try the Propersy the Sheriff ought to take with him Custod ' Placit ' Coron ' Dier 173. In Replevin the Plaintiff claims Property and thereupon a Writ issues to the Sheriff to try the value 2 Keb. 550.
formam Statliti The Sheriff or his Deputy before this Precept made ought to take a Bond or Pledge sufficient Security De prosequen ' or Retorno habendo The Form of it is thus NOverint Universt per presentes me Wilt ' P. de C. c. teneri firmit ' obligari A. B. Mic Dic ' Com' pred' in decem libris bone c. solvend ' eidem Dicecomiti c. Ad quam quidem soluc̄onem c. THe Condition c. is such That if the above-bounden W. P. do appear at the next County Court to be holden at c. and then and there do prosecute his Action with effect against J. C. for wrongful taking and detaining of his Cattel viz. one Gelding c. as is alledged and do also made Retorn thereof if Retorn thereof shall be adjudged by Law and also do save and keep harmless and indemnified the above named sheriff Under-sheriff and Bayliffs for touching and concerning the delivery of the said Cattle That then c. If the Sheriff delivered Goods and the Plaintiff becomes Nonsuit if the Defendant be ready in Court to avow the Taking then there shall be awarded to the Defendants Retorn of the Beasts in this manner A. B. Mil ' Com' praedict ' Ballivo Hundred ' de H. c. Vide Dalt 523. Accedas ad Curiam Recordar ' fac ' Loquelam If False Judgment be given in any other Court Baron than in the Sheriffs County Court then the Writ of Faux Judgment is called Accedas ad Curiam By this Writ the Sheriff must make a Record of the Plea or Suit in the presence of the Suitors ' and annex the Record so made to the back of the Writ and Retorn and certifie the same under Seal and the Seals of the four Suitors Note Nothing but the Plaint shall be removed if they be at Issue The Form of the Retorn of the Accedas vid. Wilk and Dalton 200. Vide Greenwood of Courts and Dalt c. 60. And vid. Greenwood of Recordar ' fac ' Loquelam and Dalt 201 242. It 's a good Retorn that after the receipt of Retorn the Writ and before the retorn thereof no Court was holden or that the Lord would not hold the Court or that the Suitors would not deliver him the Record The Form of the Retorn of a Pone in Replevin vid. Dalt c. 70. The Form of a Recordar ' fac ' Lequelam Id. c. 72. The Sheriff must openly read this Writ in Court and retorn the same under his own Seal and the Seals of four Suitors and to summon the Defendant to appear at the Day of the Retorn Idem The Retorn must be Recordari feci Loquelam quae est in eodem Comitat ' coram Sectatoribus Curiae and not coram me Id. ibid. On this Writ he may retorn Tradè The Sheriff may send an Accedas ad Curiam by a Servant and need not deliver it in person as Co. Burwell's Case 3 Keb. 249. Reg. Orig. 96. Of the Writ of Justicies This Writ issues out of Chancery directed to the Sheriff giving him Power to hold Plea in this Court for Actions of 40 s. or above in Debt Detinue Case c. and other Actions personals It is so called because its a Commission and not an Original to the Sheriff to do a man Right aad Justice it is Vicountiel and not Retornable And tho' it be directed to the Sheriff yet the Suitors are Judges and the Writ of Faux Judgment Retorn lies on their Erroneous Judgment and it requires no Retorn unless the Action be removed by a Writ of Recordare and then the Writ must be Retorned together with the Record Fitzh N. B. The Form is thus in Debt REx Vic' Surr ' salutem Praecipimus tibi qd ' Justicies A. quod juste sine dilatione redd ' B. 40 s. quos ei debet ut dicitur sicut rationabiliter monstrare poterit qd ' ei redd ' debet ne amplius inde clamorem audiamus pro defectu justitiae c. And several other Forms Vid. Fitzh N. B. pertotum In a Justicies the Justicies may be holden of Accompt so of Admeasurement of Dower Admeasurement of Pasture when a Commoner puts in more Cattle than he ought so of a Writ of Covenant Dalt 504. So Justicies de Curia claudenda that is where a man ought to Inclose his Ground against his Neighbour's Ground so of Debt for Money or other Goods and Detinue So a Justicies of Nusance of Trespass by Justicies of Trespass the Sheriff may hear and determine of the Trespass by an Enquest of Twelve Men according to the Order of Common Law And the Plaintiff may Count to his Damage of 20 l. or more But if it be vi armis or contra pacem the Sheriff cannot determe it therefore that is usually omitted The Sheriff may hold Plea of a Bond of 1000 Marks c. Justicies for 40 l. was held and determined before the Undersheriff in the absence of the Sheriff and a Writ of Faux Judgment lies and not a Writ of Error 2 Leon. p. 34. Sheriffs Tourn The Torun is a Court of Record holden before the Sheriff Magn. Chart. c. 17. Leet is derived out of the Sheriffs Tourn and The Nature of it after the grant of this derivative Leet the Sheriff in his Tourn is not to meddle in the reach of this Leet except in case of Negligence of the Leet and unless it be where the Leet is forfeited into the King's hands If one be under no particular Leet he is within the Sheriffs Tourn And 2 Roll. Rep. 74. the Sheriffs Tourn is the supream Leet of the County The Style is Vic' France-pleg ' Dom ' Regis tent ' apud L. coram Style Vicecom ' in Torno suo c. and not Torn ' Vic' tent ' die apud L. Or Cur ' visus Franc ' Dom ' Regis apud B. coram Vicecom ' in Torno suo and not Tornum Vicecomitis Tent ' c. for Tornum est nisi perambulatio The Tourn is inciden tot the Office of Sheriff 4 Rep. 33. Mitton's Case The Jurisdiction in respect of the things Presentable place where What things are Inquirable in the Sheriffs Tourn and what not Nothing shall be Inquired before the Sheriff in the Tourn but Actions Popular Common Nusances Affrays and Blood-shed 4 H. 6. 10. Assault made on a man is not Inquirable there it being but a Tort to a particular person for which Trespass lies 4 H. 6. 10. The stopping of Water which is a Nusance to the Country People may be Inquired there for it is popular So of a Bridge 4 H. 6. 10. They may amerce for Common Nusances and so may Stewards of Leets notwithstanding the Stat. of Marlbr c. 18. He may Inquire de Assisa panis and Cervitia non observata by Stat. Walliae in Magn. Charta 46. Coke If he find in his Tourn that a person hath erected a Purpresture in the King's HIgh-way
If three Writs of Capias in Process at the suit A General Arrest upon three Special Warrants of J. S. against J. D. are directed to the Sheriff and the Sheriff makes three Special Warrants to one Special Bayliff and he comes to J. D. and arrests him generally without shewing him in what Action neither is it demanded of him but presently upon the Arrest a Stranger Rescues him Action on the Case lies against the Stranger for all the three for this was an Arrest in Law upon all Tr. 16. Jac. Hodges and Marks So if the Writs and Warrants were at the Rescue suit of three several persons and the Bayliff arrests him generally as before for this is a good Arrest for all and all shall have Actions for the Rescue Id. ibid. He is not bound to shew his Warrant at first or to shew at whose Suit it is before he had peaceably submitted to the Arrest Cro. Jac. 15. Hodges's Case But in the Countess of Rutlands Case it is holden when the Sheriff or other person by his Authority arrests another he ought upon the Arrest to shew at whose Suit out of what Court for what Cause and when the Process is retornable to the intent that if it be upon Execution he may pay it and free his Body or agree with the Party or put in Bayl according to the Law and to know when he should appear This is meant after a peaceable submission Cro. Reports the Case of Hodges and Markes thus which is a Leading Case in the Point But when the Party makes resistance or flyeth be need not make such Declaration The Bayliff who had two Warrants against one at the Suit of J. S. laid his hands on him and having both the Warrants in his Pocket he said I arrest you by force of a Warrant I have but did not shew it him nor had it in his hands nor told him at whose Suit This was not a Bayliff conus The Court resolved 1. This Arrest without shewing the Warrant and telling at whose Suit till the other demanded is legal 2. This Arrest without having the Warrant in his hand and having both Warrants about him is well enough tho' he did not shew by which of the Warrants he arrested him For he being under the Bayliffs Arrest is in custody there for all Causes for which the Sheriff had made his Warrant against him tho' the Sheriff or Bayliff do not mention any specially And Rolls C. J. in another Case took this Special Bayliff difference a Special Bayliff is bound to shew his Warrant to the Party whom he is to arrest otherwise the Party arrested is not tyed to obey him but he is not bound to shew his Warrant to a Stranger But a known Bayliff i. e. one that is commonly A known Bayliff known is not bound to shew his Warrant to any A sworn and known Officer be he Sheriff Undersheriff Bayliff or Serjeant need not shew his Warrant yet upon the Arrest the Officer ought to declare the Contents of the Warrant ut supra If Officer arrest a man before he has a Warrant and afterwards procures a Warrant yet the first Arrest was unlawful So if the Officer do make a Warrant for Summons or Arrest not having the Original Writ or Process warranting the same if it appear to the Judges they shall commit the Offender to the Gaol till he has paid 10 l. to the Party grieved and 20 l. to the King But a Capias without Original is sufficient Warrant to the Sheriff 43 Eliz. c. 6. 1 Jac. c. 25. Of Pledges de Prosequendo The reason of Pledges in Actions is 1. Security The reason of Pledges for the Kings Fine 2. For the benefit of the Defendant if Judgment be given against he Plaintiff Taking of Pledges is to the intent that the Party Plaintiff shall prosecute his Suit The Sheriff was at election formerly whether he would serve the Writ or not if Pledges were not found but now it s held they may be found hanging the Writ Formerly if the Plaintiff sued one unjustly the Judges would amerce the Plaintiff grievously till the Statute of Moderata Misericordia was made 3 Bulst 277. Dr. Hussy and More Now if no Pledges be retorned it 's not aided by Jeofayle Stat. 18 Eliz. which aids insufficient Retorns but not no Retorns and therefore the Person against whom to have Judgment is not retorned for the Judgment ought to be against the Plaintiff and his Pledges and so this is no Retorn 1 Rol. Rep. 447. If upon the Original Writ Pledges be not retorned because the Writ commands that if Pledges be found that then c. and it is to the Kings disadvantage if Pledges be not found at the loss of his Fine it's error But the Sheriff may make Replevin without Pledges finding and it is at the Sheriffs peril if he doth not take Pledges Vid supra tit Replevin Cro. Car. 594. Tregoose and Winnele In B. C. Pledges must be endorsed on the Original tho' they may be filed at any time after the Retorn thereof 2 Keb. 299. Hedges Case Vide pluris sub titulo Replevin Vide supra sub titulo sur Summons and Attachment Neither the King nor Infant shall find Pledges King or Infant not to find Pledges for no Americament shall be upon their default therefore it were in vain for them to find Pledges 2 Leon. p. 4. Scire fac ' against the Sheriff for taking insufficient President Pledges The Form of the Sheriffs retorning that he had attached the Defendant by Pledges Hutt p. 77. Trevor and Michelborn 2 Sand. 333. CHAP. VII Of Bail of Special Bail VVho shall take Bail or not Of Bail Bonds Explication of 23 H. 6. c. 10. The design of the Statute The Form to be observed according to the Statute VVhat Obligations and Conditions are within the Statute or not In respect of the Persons and Officers to whom they are made In respect of the Form Of the Courts and of the Sureties The meaning of the words colore Officii Of the pleading the Statute of 23 H. 6. And when and how to be pleaded What Appearance to a Sheriffs Bond is good or not Of the Sheriffs Retorn on taking Bail Of Insufficient Bail Of refusing Sufficient Bail and the Remedy against the Sheriff for so doing The Sheriffs pleading this Statute in Actions brought against him Of Bail Bonds being discharged or assigned Of other Bonds besides Bail Bonds entred into to the Sheriff As for being a true Prisoner Saving harmless from Escapes For Fees c. And the Pleadings thereunto with all the late Cases and Resolutions relating thereunto Of Bail BAil is so called because the Party bailed is delivered by Law into the Custody of those that are his Bail and who are to answer the party if they do not produce the Principal to do it The cause of Marking the Roll for special Special Bail in B. R.
may be on the Essoyn-day A Writ Retorn may be on the Essoyn Day Appearance shall not abate if the Retorn be quarto die post If a man be bound to appear the first day in Term in Court he may appear the first day of the Essoyn and then have his Appearance recorded and this is good 2 Bulst Bedoe and Piper Note Where the Writ or Process is directed to the Bishop there the Bishop is to make Retorn thereof And so where the Writ is directed to other Persons as Coroners they are to make Retorns General Rules of Retorns Deputies are allowed in Ministerial Offices But all Retorns made by them are to be made in the Name of the Principal Officer 3 Bulst 78. The Sheriff must retorn true and not contrary to the Record if he do he falsifies all his Proceedings L. brought Trespass against J. G. Widow hanging the Suit she takes D. to Husband Judgment was against J. G. and a Writ was directed to the Sheriff qd ' caperet J. praedictam per nomen J. G. ad satisfaciend ' c. the Sheriff cannot now retorn that she was married Crok Jac. 323. Doley and White The Retorn must not be contrary to the former Retorn If the Sheriff retorn upon the Venire Retorn of Jurors fac ' 12 Jurors upon the Distringas he may not retorn one had nothing for this is against his former retorn 19 H. 6. 38. For if he had at first and alien since yet it is chargeable with Issues But if the Land be recovered by Eign Title in the mean time he may retorn it with this Conclusion Et issint nihil habet Id. ibidem So if he had Land in the right of his Wife and she is dead in the mean time The Sheriff is to put his Name to every Retorn made by him or the Retorn is to be void By the Statute of York 12 Ed. 2. c. 5. 1 Bulst 73. The Statute appoints that he who Retorns shall add his Name to the Retorn and it is sufficient if it be his Christian Name and Sirname and the name of his Office is not requisite Crok Car. 189. Bethell and Parry Plowd 63. tho' in Scrogs Case More 548. saith the Name of Office must be subscribed as well as by the Sheriffs Christian and Sirname but by Coroners only the name of Office If the Sheriff arrest one upon Mean Process and doth not Retorn the VVrit he is a Trespassor and therefore Stiles Pract. Reg. 276. is not Law where he saith it is not requisite that the Sheriff in making a Retorn should insert his Title or name of Dignity or Christian or Sirname but only his Name of Office Before the Statute of York 12 Ed. 2. c. 5. Rast Ret. of Sheriffs fol. 345. no Name was used to be put to the Retorn of the Writ by the Sheriff nor any other Minister or Officer which was inconvenient upon which complaint was made to this Parliament and so remedied The Retorn of the Venire fac ' was executio istius Brevis patet quodam panello huic Brevi annex ' Tho. H. nuper Vicecom ' and then the now Sheriff added these words istud Breve sic indorsat ' fuit mihi J. R. Vic' deliberat ' per Tho. H. Mil ' nuper Vic' in executione Officij sui it 's sufficient for T. H. ought to put his Name to the Retorn For nuper Vic' shews he was not then Sheriff he ought to have put his Name to it T. H. and then the new Sheriff ought to subscribe istud Breve sic indorsat ' c. Plowd 63. 5 Rep. 41. 2 Rol. Rep. 209. Bethers and Parry Vide infra Cro. Car. 289. contra Retorns must be made according to the Ancient Course and according to Presidents As Waste was assigned in S. the Retorn must not be qd ' accessit ad S. but ad locum vastatum vide infra 27 H. 8. Rol. 2. Dalt 162 163. So a Retorn of non inveni partem for non est inventus it 's Error and not amendable 9 H. 6. fo 12. Mercer was outlawed at the suit of H. it was moved to avoid the Outlawry because the Sheriff retorned the Exigent on the back of the Writ thus viz. superdictus Mercer where it ought to be infra nominatus Mercer for nothing was written above but within But by all the Justices the Retorn was good So if he had writ the Retorn on the inner side of the Writ Dalt 164. Surplusage is no hurt to the retorn of a Writ as in Elegit and the Sheriff retorns that to be executed the extent of the Church of St. Andrews alias dict' St. Edes and the true name is Andrews yet good Winch. p. 27. In Scire fac ' retornable in B. If the Sheriff retorn Scire fac ' c. qd ' sit coram vobis ad faciend ' qd ' Breve requirit Altho' vobis had relation to the King where the garnishment ought to be coram Justiciariis yet good for those words ad faciend ' qd ' Breve requirit comprehend all 29 Ed. 3. 33. adjudged every Retorn must exactly answer the Writ Statutes aid Misretorns and insufficient Retorns but not where there is not any Retorn Cro. Car. 587. Becknam None can make the Retorn of a Writ but such a person who at the time of the Retorn remains an Officer to the Court Vide infra Retorn of a VVrit is not Traversable vide infra Or against the Retorn of the Sheriff there is not any Traverse Averment or Answer Per Maynard in Searl and Longs Case Mod. Feigned Retorns mischievous Rep. 248. It 's a great abuse in Officers to retorn such feigned name the first cause of which was the ignorance of the Sheriffs who being to make Retorns and looking into the President Books for the Form and finding John Doe and Richard Roe put for Examples made their Retorns accordingly and took no care for true Summoners and true Manucaptors And he cited a Cause Judgment was entred in B. in a Plea of Quare Impedit upon non-appearance to the Grand Distress but there the Party was summoned and true Summoners retorned Upon Non-appearance an Attachment issued and real Summoners retorned upon that but upon the Distress it was retorned that the Defendants districti fuere per Bona Catalla Manucapt ' per J. Doe R. Roe and for that cause the Judgment was vacated Note When the Grand Distress is awarded it Grand Distress is that the Sheriff is commanded to seise the thing in question If the Defendant be taken then at the retorn Rule to the Sheriff to retorn his Writ of the Writ the Plaintiffs Attorney at the day of the Retorn of the Writ may give a Rule at the Clerk of the Rules for the Sheriff to retorn his Writ or if he go out of Office then a Distringas to the new Sheriff to distrain the old Sheriff to retorn his Writ But if the
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.
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
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
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
of Justification and it is not double 7 Ed. 4. 20. Plowd Comment 86. a. Where the Sheriff justifies by Execution he Retorn of the Writ must plead that he retorned the Writ secùs of a Bayliff 1 Leon. p. 144. Parkes and Mosse If a Bayliff justifie by force of a Warrant he Warrant need not say hic in Cur ' prolat ' for the Warrant doth not continue in his hands but he retorns it to the Sheriff 1 Roll. Rep. 327. Curtis and Dowty p. 221. Bateman's Case Tho' the Proceedings in a Court be irregular On Irregular proceedings in a Court Warrant yet if the Court has power to issue out a Capias by this Warrant the Officer may justifie in False Imprisonment Mod. Rep. 173. If a Bayliff justifie by reason of a Warrant he ought to shew the place where the Warrant was made It sufficeth if it be shewed in the Rejoynder 5 H. 7. 24. Justification by Mean Process The Sheriff ought to Retorn his Writ otherwise The immediate Officer must shew the Process Retorned Justification is not good But it is not so with the Servant False Imprisonment was brought against the Sheriffs Bayliff he Justifies by the Sheriffs Warrant on Latitat who arrested the Plaintiff and required the Defendant to be aiding to him but pleads not That the Writ being Retorned was executed Yet per Cur. its good for the has no means to reinforce the Sheriff to make Retorn thereof Cro. Car. 446. Girling's Case In Action of False Imprisonment the Defendant Justified by Process to the Bayliff out of the Court of the Honour of P. and does not shew any Process was Retorned which as Girling's Case is being an immediate Officer must be shewed contra of an Under-Officer And altho' he need not shew forth the Letters Patents yet it must be specially pleaded such a Court was granted and that virtute c. 2 Keb. 156. Haywood and Wood. If the Defendant in Justification of an Arrest pleads That a Bill of Middlesex was prosecuted against the Plaintiff by which the Sheriff made and directed a Warrant to arrest him it shall Bill of Middlesex intended to be delivered to the Sheriff before the Arrest be intended that the Bill was delivered to the Sheriff before the making of the Warrant till it be specially shewed to the contrary In this case he Justifies by Writ to the Sheriff and Warrant to himself 1 Sand. 299. Green and Jones The Causes of Demurrer were because it s not shewed the Writ was delivered to the Sheriff nor the Warrant made before the Arrest and also for that it s not averred that the Writ was Retorned But non allocantur this is no essential Matter nor Traversable And the Plaintiff might have Replied That the Arrest was before the delivery of the Writ else the Court will intend it to be delivered being said that Virtute of a Writ directed to the Sheriff and warrant the Defendant arrested and the Writ needs not to be Retorned by a Bayliff-Errant 2 Keb. 338. mesme Case p. 838. 844. So in Scire fac on Recovery in Action on the Case the Defendant pleads no Capias issued out against H. delivered to the Sheriff Plaintiff Replies a Capias issued out and Non est inventus Retorned but says nothing of the delivery to the Sheriff Defendant Demurs and Judgment pro Quer ' for the Delivery to the Sheriff shall be intended 3 Keb. 668. Holmes and Araker Bail for H. The Time when a Latitat issued forth is As to the Time of the taking out the Writ actually and the Teste of it Traversable and may be averred otherwise than according to the Teste Per totam Curiam for a Relation shall not work a Wrong 2 Keb. 173 198. Bolton and Johnson If a man be taken in the Vacation by a Warrant without a Writ and a Latitat be procured Teste in the Term that Teste shall not discharge the Wrong done after the Teste and before the actual taking out of the Writ but the Plaintiff may take Issue that he prosecuted truly But in Trespass and False Imprisonment the Defendant as Sheriffs-Bayliff Justified by a Latitat Teste 27 June Trin. Term past The Plaintiff Replies That the said Writ was really and actually prosecuted out of B. R. on the 9th of August which was after the Arrest of the Plaintiff Defendant Demurs And per Cur. this is an Estoppel especially in case of a Bayliff whose Warrant might be before the Arrest and all Writs must be Teste as of the Term and the Sheriffs not Retorning the Writ or the not having any shall not prejudice his Under-Bayliff But per Cur. a good Action will lye against the Sheriff or Bayliff of a Franchise in this Case But in Plunket and Green's Case in the same Reporter In Trespass and False Imprisonment against the Sheriff and Bayliff the Defendant Justified by Warrant on Writ to the Sheriff as Long and Bolton's Case The Plaintiff Replies No Writ was then taken out Defendant demurrs and Judgment pro Quer ' for tho' the Bayliff hath Warrant and no Writ a Warrant yet he is liable if there be no Writ contra if the Writ be void and delivered 2 Keb. 705. Plunket and Green And in Bennet and Filkin's Case Trespass and False Imprisonment the Defendant Justifies by arrest on Latitat Plaintiff Replies The Writ was taken out after the Arrest Defendant demurs Per Cur. the ante-date of the Writ will not suffice if the proceeding be after And Judgment pro Quer. 3 Keb. Chancy and Rutter And as to Pleading as to the Time Richardson and Pricket's Case is to be observed The Plaintiff supposed the Arrest and Imprisonment to be 10 Decemb. 29 Eliz. Defendant pleads by virtue of a Warrant from the Sheriff he did arrest and imprison him the 2d and 3d day of December before absque hoc that he was guilty before or after c. Plaintiff Replies He was guilty of the Trespass c. after the 3d day of December prout in Narratione suâ specificatur and Issue upon this and well enough tho' he saith only he was guilty after the 3d day but saith not and before the Action brought For when it s said He was guilty after the 3d day c. prout c. it is to be intended to be the 3d day and the day of which he Counted Cro. El. 95. Richardson and Pricket To all the Imprisonment but 11 Hours the Defendant pleads Not guilty and to the Imprisonment for 11 Hours he Justifies as Sheriff for that the Plaintiff hindred him in the Execution of his Office and said nothing to the Vi armis yet good 1 Sand. 78. But this Case went further 2 Keb. 237. the Trespass and False Imprisonment was laid the 1st of April the Defendant Justifies at another day at Warw. as Sheriff absque hoc that he was guilty the 1st of April or at any time before or
shew the time and place of the Arrest was That the Defendant should not let at Large any Prisoner arrested without the Sheriffs Warrant The Plaintiff shews the Defendant had let such a Prisoner at Large at Westminster c. it is good without shewing the time and place of the Arrest For the Escape is the Material part of the Covenant and the manner of the Arrest is not in Question and whether he were legally taken or imprisoned was not material when he was suffered to go at Large Siderfin p. 30. Jenkin's Case The Condition of the Bond was Whereas For a Bayliff of an Hundred to make true Retorn of all his Writs Pleading S. was Sheriff of Surrey and made T. Bayliff of the Hundred of B. Now if he should execute his Office c. and make true Retorn of all Writs directed to him then c. Defendant pleads on Oyer particularly performance to all Plaintiff Replies Process was directed to him to levy Issues on J. S. and that he made his Warrant to T. to Execute the same which Warrant he did not Retorn On Demurrer Judgment was against the Plaintiff because he did not shew that the Issues were to be Levied in the Hundred of B. For tho' the words are general to make Retorn of all Warrants directed to him yet it was to be understood of such only as were to be Executed in his own Hundred of which he was Bayliff Allen p. 10. Slaughter and Day 2 Sand. 414 415. mesme Case cited there Debt on Bond by Under-sheriff to defray the Expence of the High-sheriff and Performance To pay the Expence of the High-sheriff pleaded Plaintiff Replies J. S. recovered in Charges in carrying the Prisoner from Chelmsford to London not shewing it was done by virtue of Habeas corpus Defendant Rejoyns This was by private Agreement Plaintiff Demurs because it was not Concluded to the Country Per Cur ' There must be a Compulsion shewed by Habeas corpus to the Sheriff of Essex without which he cannot deliver him over to another Sheriff and then there is an Allowance upon the Account in the Exchequer in case of Transporting being Signed by the Judges And the Court gave leave to Discontinue 3 Keb. 448 Lewen and Allcock As to the Form of the Indentures and Covenants between the High-sheriff and Under-sheriff vide Dalton Greenwood of Courts and several other President Books CHAP. XXXIII Of Sheriffs Accompts AS for the Periods of Time wherein the manner of the Sheriffs Accompting to the King have been altered by Acts of Parliament and Practice you may peruse a Learned Treatise of the late Lord Chief Justice Hales touching Sheriffs Accompts You find there how the King's Farms were anciently Answered by the Sheriffs and the manner of the Collecting of the Kings Revenues of the County Now that which was Firmi Comitatus were the Vicountiel Rents and they came under various denominations viz. Blanch-Rents Albo firmae Praestatio pro pulchrè placitando Visus Frankpledg ' Redditus ad Turnum Certum Letae and these were in time contracted to a sort of Annual Revenues And the uncertain Annual Revenue was called Proficuum Comitatus which in ancient Times was considerable when most Law-Suits were Transacted in Counties and in Hundred Courts Fines Issues and Amerciaments in those Courts and in those elder Times they were considerable The Farm of the Bailywick of one County was let at 100 l. per Annum temp H. 3. but by Stat. 27. H. 6. c. 10. the Sheriff is restrained from Letting his Bailywick to Farm But these were formerly and now are answered at two Terms in the year Michaelmass and Easter and are called proferae Vicecomitis or Sheriffs proffers But it is as it were a Mock-payment now being so inconsiderable most Causes being tryed in Superiour Courts for upon Account he generally has all his Proffers paid and allowed to him again Vide â—he Statute of 4 H. 5. 2. 34 H. 8. c. 16. Since the Statute of 34 H. 8. c. 16. the Sheriffs might discharge themselves of the Casual Charges or Annual uncertain Charges and most ordinarily after this Statute did discharge themselves of the entire Firmae de proficuis Comitatus and they ascertained to the Court that there were no such profits beyond the charge in collecting them or that the charge of keeping the County Court the Tourn and Hundred Courts which were the things that made up the Firma de proficuis surmounted the benefit And this Making appear was no other than the Oath of the Sheriff and the Statute gives him that benefit Yet tho' the Sheriffs did use to discharge themselves by their Oaths of the entire Fermae de proficuis Comitatus and of a great part of the Vicountiels yet till Anno Dom. 1650. these entire Farms were constantly written out in Charge to the Sheriff upon the Summons of the Pipe tho' it was but a piece of Formality But now the Firmae de proficuo Comisat ' is wholly put out of the Charge of the summons of the Pipe by an Order made in the Exchequer 1650 which is followed to this day By the Act in Car. 2. Entituled An Act for the preventing the unnecessary delays of Sheriffs in passing their Accounts No Sheriff shall be charged in Account to answer any illeviable Seisure Farm Rent or Debt or other thing which was not writ in Process to him or them to be levied wherein the persons of whom or the Lands or Tenements out of which together with the Cause for which the same shall be so levied shall be plainly and particularly expressed but shall be thereof wholly discharged without Petition Plea or other trouble or charge whatsoever If the Sheriff shall seise the Goods of one that is Outlawed c. and does not accompt for the same the Owner of the Goods may have Action of Trespass upon such Seisure and shall recover the Goods or the value thereof in Damages For the Sheriff must plead that he has accounted for them otherwise he shall be a Trespassor ab initio Note The Sheriff is Accountable in respect of his Office but if he be made sine Computo he has by this the Profits to his own use 1 Roll. Rep. 183. O. N. in the Exchequer makes the Sheriff Debtor to the King and the Debtor himself Debtor to the Sheriff Hob. 206. Speake and Richard's Case CHAP. XXXIV Of Coroners How the Coroners must be chosen and the Credit the Law gives to them and how when they shall be discharged The Demeanours as to Outlawries Coroners Inquest Of Coroners c. THe Office of Coroner ever was and yet is 4 Rep. 41. Heydon 8 Rep. 41. Grâ—nly's Case 5 Rep. Specot's Case 4 Rep. 45. Wrote's Case 9 Rep. 31. Strat. Mar. 5 Rep. 108. de Wreck 10 Rep. Denband St. 28 Ed. 3. c. 6. Elect. of â—oroners Vid. 4 Inst 271. Mag. Ch. 17. cap. W. 1. c. â—0 Artic. super Chart. c. 3. Eligible in full County by
divers Hundreds granted to him for Life in Com' Bucks reserving a Rent which the Sheriff disallowed and put in Bayliffs of his own and per Curiam this was against Law and they belonged to the Office of Sheriff And so A Patent to Execute all Process within an Hundred is void There was a Case in 34 Car. 2. B. R. Cle and Ireland which confirms this resolution The Sheriff of the County of Leicest ' against the Grantee of the Hundred of G. in an Action on the Case the Grant was by the King of an Hundred pur Ans and on Special Verdict the Question Sir Th. Jones Rep. 194. was If the Defendant had good Title by such Grant to the said Hundred to hold a Court and constitute a Bayliff against the Will of the Sheriff and the Contingent and incident Fees of Leets and Courts Barons of the Hundred And per Cur ' all the Hundreds which were not before the Statute of 2 Ed. 3. c. 12. and 18 Ed. 3. c. 9. in Fee by the Crown were joyned to the Office of the Sheriff And Judgment was given for the Plaintiff against the Patentee A Sheriffs Bayliff is not an Officer of the Pract. Reg. 49 50. Court that the Court takes notice of A Bayliff of an Hundred may Execute a Writ The extent Pract. 49. out of the Hundred where he his Bayliff for he is Bayliff all the County over Sheriffs Bayliffs shall not be prejudiced by Sheriffs Bayliffs not to be prejudiced by the Non-retorn or the mis-return of the Sheriff the Non-retorn or Mis-retorn of the Sheriff The Defendant as Bayliff of an Hundred took Goods in Execution on Fieri fac ' and sold them and delivered the Money to the Sheriff its good and no Trover lies against the Bayliff for they did Execute Secundum Exigentiam Brevis 1 Leon. 144. Parkes and How 's Sheriffs Bayliffs are to take the Oath of Allegiance To take the Oath of Allegiance 3 Keb. 561 552. according to the Statute 27 Eliz. c. 12. Subpaena 40 l. viz. Bayliffs of Hundreds for they should Execute all Writs and must attend Assizes and Sessions and the Statute requires that Le Roy versus Bents they have sufficient within the Hundred but the ordinary Bayliffs or Bum-bayliffs need not And the words that no other Person or Persons shall intermedle till Sworn refer to the subject matter viz. such persons as ought usually to swear as Sheriffs Officers The Form of the Deputation of the Bayliff of the Hundred Vid. Greenwood 53. The Execution of all Writs which come to 9 Ed. 2. de vicecom the Sheriff shall be done by the Bayliffs of Hundreds such as are sworn tho' now the use is to put in Special Bayliffs Bayliffs of Hundreds shall attend Justices of 27 H. 8. 24. Assize Gaol-delivery and Justices of Peace in every of their Courts and Sessions Of Special Bayliffs what they are and how they stand in the Eye of the Law A Special Bayliff to a Sheriff for the time being Jones Rep. 65. Bath and Salter he is his Officer and his Arrest is the Arrest of the Sheriff and if he suffer a Prisoner to Escape an Action lies against the Sheriff and if the Prisoner makes Rescous the Retorn of the Retorn of Rescous Rescous shall be that it was done to the Sheriff himself The Statute of 27 El. c. 12. about taking the Jones Rep. 249. Oath that the Under-sheriff takes extends not to Special Bayliffs Inconsideration the Bayliff will make such an Promise to save harmless from Escapes Crok El. 178. 271. Dabridgcourt and Smalbroke 1 Rol. Ab. 16. Palmer and Smalbroke one his Special Bayliff a promise to save harmless from Escapes is good for he is an Officer appointed by the Plaintiff and it s no reason the Sheriff should be at a loss by his appointment And this Assumpsit is not within the Statute of 23 H. 6. c. 10. for as the Party may Discharge a Prisoner in Execution so he may foreclose himself from the benefit if the Prisoner Escape and this Action lies if he brings Escape against the Sheriff Note The Delivery of the Writ and the Promise made was to the Under-sheriff and not to the Sheriff himself Of Bayliffs of Franchises and their Power and Retorns Bayliffs of Franchises or Liberties are such as are appointed by Lords within their Liberties to do such Offices within the Precincts of such Lordships or Liberties as the Bayliff Errant do at large in their County Hundred that have Retorna brevium or Franchises Note Bayliffs of Franchises before they execute The Oaths Insufficient retorns by them their Office must take two Oaths one concerning the Supremacy the other concerning the executing their Office Vide Supra Tit. Under-sheriff Fines and Amerciaments for insufficient Retorn Where the Sheriff may enter the Franchise or not of Writs or other Process made by the Stewards or Bayliffs of Liberties shall be set upon the Heads of such Stewards or Bayliffs and not upon the Sheriff per Stat. 27 H. 8. c. 24. Hundred by Grant that hath a Bayliff by 3 Keb. 71. 125. particular Lord is but his Servant and the Sheriff Monday and Frogat Bayliffs of Franchises cannot as such take Bonds for appearance in the Sheriffs name must retorn his Precept usually makes another Bayliff to execute there But a Bayliff of a Franchise Hundred may wave his Franchise and Arrest as a Sheriffs Bayliff and then he may take Obligation in the name of the Sheriff for properly a Bayliff of a Franchise cannot take a Bond for appearance in the Sheriffs name but Bayliff of Hundreds may Dalt 544. cont * 2 Keb. 838. Grene and Jones The Baliff of a Liberty must Retorn his Precept and set his name to it and a Bayliff Itinerant need not †Keb. 86. 87. They cannot Arrest a Man without a Warrant to them by the Sheriff and if they Retorn not the Warrant to the Sheriff the Party Arrested may have his Action of false Imprisonment against the Bayliff A Bayliff of a Liberty cannot execute a Cap. Cannot execute a Cap. Utlag 3 Jac. 1. per Cur ' in B. R. Utlag and if the Party be in the Hands of the Bayliff the Sheriff may take him for it is a non omittas in it self In all Cases where the King is Party the Process must be with a non omittas propter aliquam Libertatem and there the Sheriff shall not send his Precept to the Bayliff of a Liberty but shall enter himself ex officio as for apprehending of Felons or any act at the Suit of the King always Dalt 456. extant on Stat. Merchant vid. Stat. de Mercatoribus But in other Cases where the King is no Party there if without a non omittas the Sheriff shall enter a Franchise to execute the Kings Process the Execution of the Process shall be good but the Lord of
Wetherlyes Case Where one sues a Replevin but hath not the delivery of the Goods and the other Avoweth and the Plaintiff sheweth the Defendant is yet possess'd of the Goods c. and prays that the Defendant may gage Deliverance then he shall Gage-deliverance put in Sureties and Pledges for the deliverance and a Writ shall go forth for the Sheriff to deliver them Where the Replevin is by Plaint there it may be removed out of the County into the Common-Pleas by Recordare and the Sheriff hereupon is Recordare to summons the other Party to be in the Common-Bench or B. R. at a day Certain and of all this he is to make Certificate under his own Seal and the Seals of four Suitors of the same Court In Replevin the Sheriff ought to take two Two sorts of Pledges in Replevin sorts of Pledges by the Common Law Pledges de Prosequendo and by the Statute Pledges de Retorn ' Habend ' Cok. Com' 145. b. And Note The Sheriff must take Sureties and not a Pawn Therefore where one brought Replevin and the value of the Goods taken was 20 s. and the Bayliff took 3 l. 10 s. for Pledges and not Sureties and the Party brought an Action on the Stat. W. 2. and resoved that the Action lies Jones p. 378. Cro. Car. 446. Moyser and Grey If Pledges de Prosequendo are not found and Judgment given the Process is erroneous 9 Rep. Husseys Case But these Pledges may be found to the Sheriff May be found at any time before Judgment Scire fac against the Sheriff upon retorn of nihil as to the Pledges or in Court at any time before Judgment but not after If upon the Writ to have retorn of the Beasts of the Pledges the Sheriff retorn nihil then may the Plaintiff have a Scire fac ' against the Sheriff qd ' reddat ei tot Averia or tot Catalla and so of a Bayliff of a Franchise Cok. Mag. Chart. 340. But as to the Pledges de Retorno Habendo they are given by the Statute of W. 2. c. 2. and an Action is given against the Sheriff if they are not found but this does not make the Proceedings erroneous Per totam Curiam Jones p. 439. Grosse and Boscawen So is Tregooose and Winnell's Case Pledges in Replevin on Retorno habendo were not taken by the Sheriff according to the Statute of W. 2. c. 2. after the Plaint was removed into the Common-Bench by Recordare yet Pledges may be found by the Court. For the Pledges given by the Statute of W. 2. are only to give Remedy against the sheriff for his neglect and the Pledges may be found at any time before Judgment Cro. Car. 594. Tregoose and Winnell If a Withernam be awarded for the Plaintiff Withernam Retron of the Beasts of the Desendant and the Sheriff Retorns he had taken the Beasts of the Defendant in Withernam but none comes from the Plaintiff to have them And now the Plaintiff prays a Writ to the Sheriff to deliver the Withernam to him and the Defendant prays that the Plaintiff gage Deliverance and saith that part of the Beasts which he took are dead by the default of the Plaintiff and the remnant he is ready to deliver In this Case the Plaintiff shall In what case the Plaintiff shall not have deliverance of the Withernam to him not have Deliverance of the Withernam to him but it shall remain in the custody of the Sheriff until a Writ issue to the Sheriff for the Plaintiff to have Deliverance of his Beasts and then shall come in debate in whose default the Beasts are dead 44. Ass 15. Note If J. S. be Sheriff and the Distress be taken by him there the Writ or Plaint shall be in Common Form naming the Sheriff by his Christian name and Sir-name quae J. S. cepit and not quae tu ipse cepists and the Sheriff in that case ought to make Deliverance C. Magna Charta 139. Reg. Orig. 81. b. A Declaration in Replevin was for 100 Ewes Delivery by the Sheriff must be according to the Writ and Weathers and it doth not appear how many there be of Ewes and how many there be of Weathers and the Sheriff is bound to make delivery of the one sort and of the other For the Delivery of the Sheriff must be according to the Writ c. and the Declaration was held ill But Ewes without addition had been good enough and the Sheriff must have delivered the one sort and the other if the Writ be for Oves matrices the Sheriff cannot deliver Weathers So if for black Horses the Sheriff cannot deliver white but is subject to Action on the Case Allen p. 33. Moor and Clypsam Of Retorns De Pone The Sheriff Retorns He had attached the Goods per plegios and the Form of such Retorn vide 2 Sanders 333. De Recordare fac ' Loquelam Dalt c. 72. Retorn ' sur Replevin de retorn ' habend ' Ibid. c. 73. Retorn ' averia clongata vid. le Form ibid. Retorn ' quod accessi ad locum visum habere non potui Ibid. Where the Plaint is in the County Court of the taking and withholding Cattle and Goods the Entry is thus JS queritur versus J. D. de pl ' ito Captionis injustae detentionis averiorum ipsius J. S. contra vad ' pleg ' Et invenit plegios tam de clamore suo prosequendo quam de averiis suis retornand ' si retorn ' inde adjudicetur viz. J. D. R. H. And the Precept of Replevin is thus War'ss A. B. Miles Vic' Comitat ' praedict ' Ballivo Handred ' de H. nec non J. S. Ballivo mec hac vice Et eorum ulterius conjunctim divisim salutem Quia W. P. invenit mihi sufficien ' securitatem tam de clamore suo prosequendo quam de averiis suis videlicet bove uno quem J. C. cepit injuste detinet ut dicitur retorn ' si retorn ' inde adjudicetur Ideo ex parte Dom ' Regis vobis utrique vestrum conjunctim divisim mando qd ' repleg ' delib ' fac ' praefat ' W. P. bovem suum praedict ' or averia sua praedict ' if several Et quod ponat ' seu c. per vad ' salvos plegios praefat ' J. C. ita qd ' sit ad prox ' Comitat ' meum apud c. tenend ' ad respondend ' praefat ' W. de pl'ito captionis injustae detentionis bovis sui praedict ' Et qualit ' c. mihi ad prox ' Comitat ' meum certificetur seu c. sub periculo incumbente Dat' sub sigillo Officii mei die c. Per me A. B. Mil ' Vicecom ' If this Replevin be granted by the Deputy then the must set his Name to the Replevin thus Per me J. A. unum Deput ' dict' Vicecom ' secundum
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
Remedy And his pleading in an Action brought against him Note After the Statute of 23 H. 6. the Sheriff cannot make a Special Retorn in a Capias but only a Cepi Corpus or Non est inventus And the Statute tho' it compells him to take Bail yet it does not alter the Retorn The design of the Statute is to provide against the Extortion of Sheriffs being obliged to Retorn Cepi paratum habeo and yet to lett the Defendant at large and therefore there is no reason he should be Charged for not having the Body at the Day The Retorn of a Paratum habeo is in effect no more than that he hath the Body ready to bring into Court when the Court shall Command him And for his False Retorn of Paratum habeo he is amerceable to the Court till he do bring in the Body and the Common Practice is so but that is nothing to the party and no Action lies against him by the party And therefore vide Page and Tulses's Case Now as to the sheriffs taking Insufficient bail and refusing to take Sufficient bail the Law stands thus If the Sheriff refuse to take Reasonable Bail an Action on the Case lies against him Siderfin p. 23. If the Sheriff refuse to take Bail he is liable to an Action of False Imprisonment If the Sheriff take Insufficient Bail yet no Action lies against him by the party for he is Judge of the Bail Vide supra Therefore In Action on the Case against the Sheriff for Escape the Defendant pleads the Statute of 23 H. 6. that he Lett H. to Bail and took Reasonable Sureties A. and B. persons having sufficient within the County The Plaintiff Replies Absque hoc that he took Bail having sufficient within the County The Defendant Demurrs and Judgment pro Defendente Mod. Rep. 227. Ellis and Yarborough Where Trespass on the Case was brought Sheriff pleads Stat. 13 H. 6. against the Sheriffs of Middlesex for suffering an Escape and Retorning Cepi corpus and Paratum habeo which was false The Defendants plead That the party Arrested put in J. B. and J. C. Sureties and plead the Statute of 23 H. 6. and they took Bond according to the Statute and so let him Escape Per Cur ' The Plea is good for the Reasons aforesaid So in Bowles and Lassell's Case if the Sheriff Retorn a Languidus in Prisona having taken Bail secundum Stat ' it was adjudged that tho' the Defendant was at Large yet no Action lay against the Sheriff All this must be understood of Mean process for else this would be to frustrate the Statute of 23 H. 6. Cro. El. 852. Bowles and Lassels But Note Then it must appear to the Court on the Record that it is on the Statute of 23 H. 6. and not a Retorn at Common Law Not Guilty And the Sheriff may in such case plead Not guilty Siderfin 22. Allen and Robinson But if the Sheriff demurrs to the Declaration If the Sheriff demurr al' Narr ' the Action is against him then the Action is against him For the Declaration shall be taken to be true upon the Demurrer For the Statute is private and the Court will not take notice of it unless it be pleaded But if the Defendant had pleaded this specially or if he had pleaded Non culp ' he might have had advantage of the Statute and oufted the Plaintiff of his Action Cro. El. 624. Barton and Aldworth Siderf Parker and Welby Mod. Rep. 244. 244. Page and Tulse p. 33. Franklyn and Andrews Mo. n. 427. Cro. El. 460. Gardner and Langton By these Words in the Statute That if the Sheriff Retorn a Cepi Corpus he shall be chargeable to have the Body at the Day of the Retorn c. it is intended only that he may be Amerced to the King for not having the Body at the Day 2 Sand. 60. Postern and Hanson An Action on the Case against the sheriff for not taking Reasonable Sureties not having sufficient Estates in the said County and Retorning Cepi corpus and yet not having the Bodies ready by the day lies not forhe is compellable to lett to Bail and if he have not the Body he shall be amerced And because he shall be amerced the Statute gives him Advice to take sufficient Sureties for his own Indempnity 2 Sand. 59. Postern and Hanson In Action on the Case for taking Insufficient Sheriff pleads He had taken sufficient Bail he need not say where nor Traverse the Intent bail The Defendant pleads he had taken sufficient Security He need not say where nor need he traverse the Intent to deceive the Plaintiff of his Debt For it is not issuable at what place the Security was taken and therefore need not be shewed and the Intent is not Traversable and had the Defendant pleaded so it had been ill Siderfin 96. Bentley and Hore Action on the Case against a Sheriff for taking How the Sheriff is to plead on 23 H. 6. c. 10 Insufficient bail The Defendant pleads the Statute of 23 H. 6. c. 10. The Plaintiff Demurs to the Bar because the Sheriff had not alledged that he had not dismissed one B. whom he had taken by sufficient Mainpernors but only alledgeth this by way of Implication and not positively 2 Sand. 58. Postern and Hanson Of Bail Bonds being Discharged or Assigned In Debt on Sheriffs Bond the Principal being Where the Bail Bond shall be discharged paying the Americaments and where not in Prison may be admitted to plead discharging the Amerciaments and this is the course of the Court where the Prosecution is fresh But where the Defendant in the Original Action viz. the Principal is become insolvent Per Cur ' The Bail Bond is the only remedy and they will not discharge that on Ordinary Rules In this Case North prayed the Continuance of Process on the Bail Bond in regard since the default of the Appearance of Fludd the Principal he is become Insolvent by suffering several Judgments But Jones said That the Bail appeared on the very day of the Retorn and the default is the Plaintiffs own and the Bond not above an year old And per Cur ' paying the Amerciaments and Costs the Bail were discharged and the Principal admitted to plead 2 Keb. 545 553. Fludd and Williams The Surety paid the Debt and he sued the Bail Bond sued by the Surety who paid the Debt and the Coroners took a New Bond. Bail Bond assigned by the Sheriff on which a Writ being directed to the Coroners they took a New Bond and assigned it and they prayed the Money out of the Coroners hands for the Surety Per Cur ' The Coroner cannot discharge his Bail Bond no more than the Sheriff and they ordered the Principal Debt to be paid 2 Keb. 287 400. Foster's Case A Bail Bond was discharged upon Motion Discharged by payment of the Money before the Retorn of the Writ Assigument of the Bail
Bond. the Money being paid before the Retorn of the Writ and Common Appearance ordered 3 Keb. 356. Randall's Case If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to sue the Sheriff And the Sheriff shall be amerced till he assign the Obligation to the Plaintiff Pract. Reg. 24. Siderfin p. 24. When Bail is put in de bene esse as Bail taken Bail de bene esse in a Chamber the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keb. 478. The Court cannot compel a Sheriff to assign Where the Sheriff shall be compelled to assign his Bail Bond. his Bond regularly But in some Cases they will as the party was arrested by the Sheriff and through his default in not Retorning the Writ The Defendant died Now in this case he shall not take advantage ofhis own wrong but shall assign the bail Bond or pay the utmost Amerciaments 2 Keb. 388. Hill and Browning It was moved in B. R. to stay Proceedings Proceedings upon Bail Bond shall not be stayed until Special Bail given where the Plaintiff had been prejudiced by delaying of Appearance upon bail Bond upon discharging the Amerciaments and Costs as is usual And it was alledged on the other side That after the same Bail given the Principal had sold his Land and became irresponsible and rendred himself to the Marshalsea And for this cause the Court refused to stay Proceedings and said it would not be done until he had given Special bail because they did not cause him to appear at first according to their Obligation And so it is when the Principal on such default of Appearance becomes a Bankrupt Siderfin pag. 386. Of other Bonds beside Bail Bonds Entred in to the Sheriff what are good and what not And Pleading Vide infra tit Bonds between the High-sheriff and Under-sheriff and others Bond to be a True Prisoner A Bond given to be a True Prisoner as by Law he ought is good and not within the Statute of 23 H. 6. As to this There is a Notable Case of Lenthall and Cooke The Case is Lenthall the Marshal brings Debt on Bond against Cooke The Condition was If the above-bounden A. P. now Prisoner in The Condition the Kings-Bench in Southwark do and shall from henceforth be and continue a true Prisoner in the Custody guard and safe-keeping of the above-named John Lenthall Marshal of the same Prison and in the Custody guard and safe-keeping of his Deputy Officers and Servants or some or one of them until he shall be lawfully discharged without committing any manner of Escape or Escapes during the time of his Restraint Then this present Obligation to be void The Defendant Pleads the Statute of 23 H. 6. Pleadings of Obligations made to the Sheriff colore Officii And further pleads That at the time and long before the Plaintiff was Marshal that P. at the same time was a Prisoner at the Suit of c. And that the Defendant together with the said P. pro easiamento favore to be shewed by the Plaintiff to the said P. made the said Bond c. The Plaintiff Replies and Bond was pro meliori securitate of the said Plaintiff that the said P. should not Escape and traverseth the Ease and Favour The Defendant demurrs And these things were Resolved by the Court. 1. That the Marshal of the Kings-Bench is within the words Gaoler and Keeper of Prisons 2. Bonds made to Gaolers for Ease and Favour of Prisoners are void 3. A Bond given to save harmless from Escapes Bond to save harmless from Escapes is void is within this Statute and void but a Bond to continue a True Prisoner is good And there is no agreement that it is for Ease and Favour appears but the contrary rather for the Plaintiff in his Replication hath Traversed it and the Defendant hath confessed the Replication to be true by his Demurrer 1 Sand. 162. Lenthall and Cooke Latch 23 143. Elworthy and Perryer and Hill there cited This Case of Lenthall and Cooke is Reported by Siderfin and the Case there truly put as here The Intention of the Obligation was for Ease Plea and Favour and Traversing it hath taken it away Now when the Defendant had such Issue Demurrer offered and refused to joyn but demurrs the Defendant agreed it was for Ease and Favour Siderfin 283. Note A little Evidence in such case would serve to prove Ease and Favour A Bond to the Warden of the Fleet to be a True Prisoner The Defendant without pleading the Statute saith it was for Ease and Favour The Plaintiff demurrs The Plaintiff should have Traversed the Ease And Judgment for the Defendant 3 Keb. 320 361. Oakes and Cell Condition is Where D. F. is under his Custody i. e. of the Obligee upon Arrest at the Suit of the Plaintiff in Action of Debt of 1400 l. upon Bond by him to the Plaintiff and at the Request of the Defendant he is permitted to go at Large for six days If therefore the said D. before the 12th of February renders himself a Prisoner to the Sheriff of Middlesex at the Plaintiffs Suit on Action of 1400 l. and remain a True Prisoner till he shall be discharged by Consent of the Plaintiff See the Pleading Quaere de Judgment Sir Tho. Jones Rep. 139. Rushant and Waite Siderfin 132. But a Bond of one in Execution to be a true A Bond of one in Execution to be a True Prisoner is void Prisoner is within this Statute and void And as to this the Case was The Condition of the Bond was If Thomas Manningham keep the Sheriff without damage against our Lord the King and one T. P. and at all times be at the Commandment of the said Sheriff as a True Prisoner and appear before the Justices c. Then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Thomas Manningham was in Execution upon a Recognizance and that the Sheriff made the Obligation for the delivery of the said Thomas Manningham and demanded Conclusion of the Plea Judgment si Actio i. e. If the Plaintiff ought to maintain his Action This is no good Conclusion of the Plea he ought to have Concluded Issint nient son fait For the Statute saith it shall be void and if it shall be void then it shall be void from the beginning and then it is not his Deed. And further That he had not wisely Concluded his Plea for this Special Conclusion had straitned the Defendant so that if the Obligation be void for any other Cause the Defendant shall not have benefit of it And yet because it appear'd to the Judges on the Matter in
Law that the Plaintiff had no Cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for Bailing those which are contained in the second Branch as those in Execution c Plowd 66 67. Dive and Manningham But as for the Conclusion of the Plea the Condition was That the Defendant should appear in B. R. to Answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his Enlargment and Issint non est factum The Plaintiff demurrs Specially upon the Conclusion of the Plea which ought to be Judgment Si Actio and agreed the Plea to be ill Allen p. 85. Leech Davies The Defendant and L. were joyntly bound Judgment confessed on Escape to Sir J. Lenthall for the true Imprisonment of W. and there was a Warrant of Attorney to Confess Judgment on the Escape of W. Glyn moved to set aside the Judgment being a way for Ease only and Judgment entred without Trial of the Escape But per Cur ' It is to be entred on Action brought which is brought and the parties are at Issue But Sir J. Lenthall assigned his Security to the Creditor which per Cur ' is well enough and there appearing no Fraud they refused to set aside the Judgment 1 Keb. 815. Sir John Lenthall versus Lord Landois The Marshal takes Bond of one in Execution The Rules of the Kings-Bench to be a True Prisoner who Escapes Action is brought against him and well for the Bond is good The Marshalsea was Ruled to be enlarged and this shall be called Within the Rules and if the Marshall take a Bond to tarry there it is good Latch 143. Sir G. Reynell versus Elworthy Poph. 165. fine Sir G. Reynel's Case But a Bond to the Marshal c. to save harmless from Escapes is void and within the Statute because it is not a Bond that he shall continue a True Prisoner Vide the Condition Record and Pleadings 1 Sand. 160 161 162. Lenthall and Cooke 2 Keb. 422. Id. Casus The Marshal ought not to take Bond for Bond for Chamber-Rent void Chamber-Rent this is to come in in Allowance Fees The Warden nor other Gaoler cannot impose what Rents they will on Chambers 3 Keb. 102. Bond and Mosedale 3 Keb. 133 603. Duckenfield's Case A Bond or Covenant for Fees is void but a Bond for Fees Bond for True Imprisonment is not void primâ facie without Circumstances c. 3 Keb. 133. Mosedale and Middleton A Bond for Chamber-Rent is void by Common Law because the party is restrained contra voluntatem and shall be Imprisoned till payment Also the Statute extends to the Marshal only for such Bonds as they may take virtute Officii Latch 10. Epsom Case Upon a Statute acknowledged and Extent sued the Sheriff takes Bond of 20 l. for payment of 10 l. his Fee and this was before the Liberate It s a void Bond 1. Because he takes the Bond before the Liberate 2. He took his Wages before he did his work 3 Keb. 678. Ellis and Nelson Vide infra tit Fees Note A Promise is within the Statute as well Promise as a Bond. But it is where the Bond or Promise is made by the Prisoner himself or some other for him And therefore in an Action on the Case the Defendant promised the Plaintiff That if B. a Special Bayliff at his Nomination arrested A. at his Suit on Cap ' ad satisfaciend ' and suffered him to Escape he would not sue the Plaintiff this is not within this Statute 1 Leon. 132. Palmer and Smalbrook But Hobart in Norton Sim's Case saith Covenant is not within this Statute that is because it was not a Bond for performance made in the behalf of a Prisoner as Beaufage's Case is Hob. p. 13. As to Assumpsits and Considerations about delivering Prisoners in safe Custody saving harmless from Escapes permitting to go at large Vid. infra Sub tit Escape in fine By the Statute of 13 Car. 2. c. 2. persons arrested Where the Sherist is not to take 60 or 40 l. Bail by Process out of the Kings-Bench or Common Pleas not expressing the Cause of Action in the Writ Bill or Process and which are bailable by the Statute of 23 H. 6. c. 10. shall give Bail Bond not exceeding the Sum of 40 l. and upon Appearance at the Retorn he shall discharge such Bail Bonds And if the Plaintiff do not Declare before the End of the next Term after Appearance then he shall be Nonsuit and Judgment and Costs shall be against him But this Statute extends not to Arrests upon Capias Utlagat ' Attachment or Rescous Contempt or Priviledge nor to popular Action or Action on any Penal Law except for Tythes Indictment or Information Now if the Sheriff in such Personal Actions do take a Bond of 150 l. where it ought to be but 40 l. the party shall have an Action upon the Statute against the Sheriff but the Bond is not void This was the Case of a Coroner 2 Keb. 387 311. Foster and Closon And therefore Villars and Hasting's Case where it saith The Statute doth not restrain him from any Sum is good Law but with this Caution That Action lies against him if he exceed 40 l. de placito debiti generally upon this late Statute Cro. Jac. 286. In what other Cases the Sheriff may Bail or not The Sheriff cannot bail one Committed for Felony except it be by the Kings special Writ directed to him for that purpose A man Indicted for Trespass or any the like Offence before Justices of the Peace and thereupon Committed to Prison may upon the Kings Writ be Bailed by the Sheriff to appear at Sessions Upon a Supersedeas the Sheriff may bail a man Sued or Indicted c. whereupon a Capias or Exigent shall be awarded against him and the party thereupon is Imprisoned CHAP. VIII Of Retorn of Writs and when they may be Retorned General Rules and Maxims of Retorns What Writs must be Retorned and what need not What shall be a good Retorn of Writs or how Retorns shall be made in respect of the Person that makes the Retorn as Sheriffs Bayliffs of Franchises c. In respect of the Forms and where insufficient Retorns are aided Where Retorns shall be void for the Uncertainty or Repugnancy What shall be a sufficient excuse for the Sheriffs Non-retorn of a Writ and what not What Acts Process or Appearance shall be good before the Retorn The Penalty on the Sheriff by the Court for Non-retorn A Retorn is but a Certificate made by the Sheriff or Bayliff to the Court from whence the Writ issued of that which they have done touching the Execution of the same Writs There is a difference between the Teste and Retorn of Writs A Retorn
512. Palmer and Potter If a Venire fac ' comes to the Sheriff in a Against the Sheriff for a Retorn by one who is nor Bayliff of a Franchise Quare impedit and the Sheriff command the Bayliff of the City of C. to retorn the Pannel who does it accordingly where he had not any Warrant to do it not being Bayliff of a Franchise whereby the Pannel is quasht The Plaintiff for this default in the Sheriff and for his Damages shall have an Action on the Case 38 Assize 13. The Sheriff upon a Fieri facias against J. S. Against the Sheriff and not against the Bayliff makes a Warrant to J. S. to execute as his Bayliff and he does it and afterwards the Sheriff makes a False Retorn viz. that the Writ came Tardé c. by which he is a Trespasser ab initio yet it amkes not the Bayliff a Trespasser 2 Rol. Abr. 562. Parkes and Mosse It was the Opinion of all the Judges in the Case of Fawces and Cotton That the Sheriffs submission to a Fine is no Conclusion to the parties grieved to bring their Actian for the false Retorn of the Sheriff if it were so Sir Thomas Jones p. 39. In retorn on Elegit the Sheriff Retorns That Case and not Debt he had appraised the Goods in specie to 40 l. and extended such Lands and delivered them to the Plaintiff Ubi revera he never delivered them to the Plaintiff Action of Debt lies not in this Case but Action on the Case for it is no Debt in the hands of the Sheriff Cro. Jac. 566. Coryton against Thomas And it s not like to Pyke's Case 14 Jac. which was the Sheriff on a Scire fac ' retorned That he had sold the Goods for so much Money and delivered the Money to the Plaintiff and the Plaintiff thereupon averring that he had not the Money maintained an Action of Debt For there the Sheriff confessed by his Retorn That he had sold the Goods and delivered the Money but here it is not retorned that he medled with the Goods or the value of them so as there is not any Certainty to charge him Pyke's Case 14 Jac. Where the Action is to be brought Action for a False Retorn may be brought in the County where this was or in Middlesex where the Record is Cro. Jac. 532. Parkhurst and Powell So Escape at D. in Wales and the Retorn was Non est Inventus and it was tryed at Westminster the False Retorn being made at Westminster which is the cause of the Action 2 Keb. 362. Mancer and Smith If a Sheriff on Cap ' Utlagat ' will not arrest the party but retorn Non est Inventus an Action may be brought against him in the County where he received the Writ or in Middlesex where the Record of that False Retorn is at Election Hob. 209. Siderfin p. 218 219. Russel's Case A Doubt was Whether Action on the Case for a False retorn on Elegit lies in the County where the retorn of the Exigent was i. e. in Middlesex or where the Land lies And the Court inclined that it lay most properly in Middlesex Winch. p. 100. Sheir against Sir Francis Glover One brings Debt against B. Sheriff of the County Palatine of Lancaster and sues him to Outlawry on Mesn Process and had a Capias directed to the Chancery of the County Palatine who make a Precept to the Coroners of the County being Six to take his Body and have him before the Justices of the Court of Common Bench at VVestminster one of the Coroners being in sight of him and having a fair opportunity to arrest him does it not but they all retorn Non est inventus The Plaintiff hereupon brings his Action against the Coroners in Middlesex And the Court inclined that the Action is well brought in Middlesex because the Plaintiffs Damages arise here by not having the Body here at the Day Bulmer's Case Rep. and Dyer 159. The Chancery retorns to the Court the same Coroner Answer that the Coroners return to him so that the False Retorn is the cause of prejudice and the other things are but Arguments to prove it And the Court conceived an Action would not lye against one Coroner no more than against one Sheriff of London York c. Mod. Rep. 198. Naylor and Sharpley Of Declarations in Actions for False Retorns In Pigot's Case it was alledged for Error that the Declaration was naught 1. The Bond was made for 200 l. dared Process before the Bond made 29 Aug. 13 Jac. and this was before the Bond made yet being retornable in Michaelmas Term and the Latitat upon it after the Bond its sufficient to maintain the Action and the Process always bears Teste the last day of the Term before 2. The Declaration is The Sheriffs Bayliffs It s not shewed the Defendant did not appear arrest the party and the Sheriff falsly retorned Non est inventus It was alledged for Error that the Declaration was not good because he doth not shew that the Bayliffs delivered the Bond to the Sheriff which they had taken for his Appearance nor is it shewed that the Defendant did not appear Sed non allocatur For these serve but for aggravation of Damages and are supplied by the Verdict Cro. Jac. 561. Pigot and Rogers Fieri fac ' for Debt was delivered to the Sheriffs of N. who executed it after which the Sheriffs were discharged of their Office and new ones elected The old Sheriffs redeliver to the party his Goods taken in Execution and indorse Nulla Action against the old Sheriffs bona on the Writ of Fieri fac ' and deliver it to the new Sheriffs so Indorsed And an Action on the Case was brought against the old Sheriffs for this False Retorn and Judgment pro Quer ' And these Exceptions were taken 1. The Plaintiff in his Declaration does not say that the old Sheriffs did retorn Nulla bona but only that they did indorse Nulla bona which is no Retorn 2. He saith not they delivered this Writ thus indorsed to be retorned i. e. by Indenture 3. It appears not whether any Retorn of the Tho' it appear not that any retorn of the contrary was made by the old Sheriffs Writ were made by the old Sheriffs or the new Per Glyn Chief Justice He conceived it to be well and according to the course in that kind For the old Sheriffs to make the Retorn and to deliver the Writ over by Indenture to the new Sheriffs and here was a Verdict And a Retorn is not properly a Retorn till it be filed here yet it is the Retorn of the Sheriff in the County where he is Sheriff and yet it seems Judgment was reversed Quaere Style p. 474. Toft and Day Action on the Case on a False Retorn of Non est inventus by the Sheriff of Galloway in Ireland It was averred that the Sheriff at the time
tho' the Debt was well assigned And upon a Constat of Goods in another County he may well have a Scire fac ' into another County 2 Leon. n. 90. Bendl. 23. But if Executors plead plene administravit it was found they had Assets and a Fieri fac ' issued to the Sheriff who Retorned that they had not any thing within the County Per Cur ' Its a good Retorn because the Jury it may be found Assets in another County so the Verdict shall not bind the Sheriff 2 Brownl Rep. p. 116. Morgan and Took If it appear by the Defendants Plea that he hath When the Sheriff may retâ—rn Devastauit Assets in his hands and if the Sheriff cannot levy the debt in the Defendants hands he may upon the Defendants own shewing without any damage retorn a Devastavit and if Judgment be given against an Executor on Demurrer and Execution awarded the Sheriff cannot Retorn Nulla habet bona Testatoris But it is a Devastavit if it be found against the Executor by Verdict Cro. Eliz. 102. Stubs and Rightwise Judgment was given in Banco de bonis Testatoris Special Scire fac ' and Fieri fac ' issues out the Sheriff Retorns Nulla bona the Plaintiff may have a Special Fieri fac ' That the Sheriff shall levy the Debt of the Goods of the dead and si sibi constare poterit Fauâ— Retorn that the Executors have wasted them then de bonis propriis and if the Sheriff makes a False Retorn the party may have an Action on the Case But if upon the Retorn of Nulla bona and a Quia Testatum est that they have wasted a Writ of Enquiry is awarded what Goods were wasted and it s found that Goods ad valentiaâ— of the Debt were wasted and upon that a Scire fac ' to have Execution de bonis propriis upon two Nichils retorned This is Erroneous and if the Inquisition be false the party hath no Remedy and upon two Nichils retorned the Defendant shall be condemned yet perhaps he had not Notice 5 Rep. Pettyfer's Case To that purpose is a Case in Littleton's Reports Judgment was given against the Executor and Execution awarded and the Plaintiff informs the Sheriff that the Executors have wasted the Goods of the Testator but the Sheriff would not retorn a Devastavit Henden Serjeant moved for a Commission to enquire whether the Goods were wasted and if it be found then the Sheriff might retorn a Devastavit without peril But the Judges said they would not Advise because it was a New course Lit. Rep. 47. But in Aldworth and Peel's Case it was Resolved There Debt was brought against Peel as Executor the Plaintiff had Judgment to recover de bonis Testatoris and thereupon a Scire Scire fac ' de bonis propriis shall not be awarded upon the surmize of the party but on the Retorn of the Sheriff of a Devastavit fac ' was awarded and the Sheriff retorneth quod nulla habuit bona Testatoris and the Plaintiff surmizeth that he had wasted the Testator's Goods whereupon he prayed a Scire fac ' why he should not have Execution de bonis propriis And per Cur ' this Writ shall not be awarded upon the surmize of the party of a Devastation nor in any case where the Judgment is de bonis propriis unless it be on Retorn of the Sheriff where he retorns a Devastavit Cro. El. 530. Aldworth and Peele If A. recover against B. Debt and Damages and after B. died and Administration is granted to C. his Wife who wastes the Goods and after takes D. to Husband and a Fieri fac ' is awarded de bonis Testatoris in the hands of D. and C. and the Sheriff Retorns Nulla bona c. and upon this on surmize that they have wasted the Goods another Writ was awarded to the Sheriff Si sibi constare poterit per Inquisition ' that they have wasted the Goods then to warn them to shew cause why Execution should not be de bonis propriis and so an Inquisition is taken And the Sheriff Retorned That they had not in their hands any of the Goods of the Intestate but that the Feme being Administratrix of her first Husband had Goods of the value of 100 l. of the said Intestates and had wasted them during her Widowhood and the Husband had not wasted any of them Et si devasterunt according to the Writ the Jury pray the Discretion of the Court Per Cur ' This Special Retorn of the Sheriff is good and by this the Husband is ☜ to be charged for the Conversion of the Wife Cro. Car. 603. King and Hilton The Sheriff Retorns a Devastavit no Assets over being in Question on Non est factum against an Administrator by Fieri fac ' with a Scire fac ' Per Cur ' Tho' it be a False Retorn we cannot Faux Retorn help it but it s at the Sheriffs peril 3 Keb. 530. Brown and Collins On Fieri fac ' with a Scire fac ' and Assets the Sheriff returned Waste and the Defendant pleaded plene administravit The Plaintiff demurred because the point of the Inquisition is not traversed and Judgment pro Querente Debt against an Executor and a Recovery by Verdict and Judgment upon this and a Fieri fac ' de bonis of the Intestate upon which a Devastavit was retorned an Elegit issues de bonis propriis Mo. 299. n. 446. Mead and Cheney If A. recover against B. and Execution de bonis The party may discharge himself of a Devastavit by Plea That the Sheriff levied the Money on the first Fieri fac ' Testatoris si non de bonis propriis and the Sheriff upon a Fieri fac ' levies the Moneys and after to another Fieri fac ' to him directed Retorns a Devastavit and upon this a Scire fac ' is granted against B. to shew cause c. B. may discharge himself of this Devastavit by Plea that the Sheriff levied the Money upon the first Fieri fac 1 Roll. Abr. 903. Middleton and Powell President Retorn of a Fieri fac ' upon a Devastavit Dyer 222. But now the Practice is more nimble than by the tedious Inquisitions and that is by bringing Action in the Debet and Detinet against an Executor suggesting a Devastavit in his Declaration without any Retorn of the Sheriff Siderfin 397. Wheatby and Law On a Fieri fac ' in a Scire fac ' to have Execution de bonis propriis Sheriff Retorns upon Inquisition That the Defendant Administrator habuit bona catalla Plea to Scire fac ' de Devastavit in manibus suis quae fuerunt del intestate tempore mortis suae ad valentiam debiti damnorum recovered by the Original Judgment and that the Defendant bona catalla illa ad valenc ' debiti damnorum praedict ' vendidit elongavit ac in
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
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
this Execution vid. supra The Sheriff upon a Scire fac ' cannot deliver Cannot deliver Goods in satisfaction of the Debt the Defendants Goods to the Plaintiff in satisfaction of his Debt but must retorn the Execution in Court Cro. El. 504. Tompson and Clark Noy 56. Mesme Case Action on the Case was brought against the Sheriff for fraudulent omission of Execution of Goods that were in Conspectu suo but he saith not in his Declaration that he knew them to be the Goods of the Defendant in that Action And for this omission after Verdict Judgment was Arrested by Twisden and Windham 1 Keb. 946. The gift of the Action is the fraud which cannot be without notice which is now wrapt in the Verdict tho' it could not be pleaded the Sheriff being bound to take notice whose Goods they are Russel and Comber On Fieri fac ' against J. S. who has the Goods of Sheriff sells the Goods of J. S. a strange Security A. in his possession if the Sheriff sell these Goods Trover or Trespass will lye against him and to prevent this all the Sheriffs of England take Security Keb. 693. Sander's Case Quaere if the Seriff may take Bond for his Security But the safest course is for the Sheriff to enquire by a Jury in whom the property of the Goods is or else not to meddle with any such Goods which do not plainly appear to him to be the Defendants and it being found by the Jury that excuseth the Sheriff Pleading by the Party who has paid the Money to the Sheriff In Detinue the Plaintiff had Judgment and brought Scire fac ' to have Execution Defendant pleads that upon a Distringas to the Sheriff on that Judgment he delivered such Goods to the Sheriff and for the residue that they were appraised at so much by Inquisition taken by the Sheriff and that he delivered the Money to the Sheriff but he doth not aver this matter to be Retorned by the Sheriff it s a good Plea for otherwise the Defendant should be prejudiced for he might have twenty several Executions served against him upon one Judgment and he should be put to his remedy against the Sheriff only who may be insolvent And it is a less mischief to inforce the Plaintiff if his Plea be true to take his Action for it against the Sheriff and if it be not true to take Issue thereupon Crok El. 390. Atkinsons Case Now if the Sheriff levy Goods by force of a Where the Plaintiff shall have a new Fieri fac ' or not Defendant discharged upon seising the Goods by the Sheriff Fieri fac ' and delivers them not to the party nor retorns the overplus the Plaintiff may have a new Fieri fac ' because a Record shall not be avoided by a matter in Fact But by the taking the Goods of the Defendant to the value of the Debt by the Sheriff the Defendant is discharged altho' the Sheriff do not satisfie the Plaintiff therefore he shall not have a new Execution 2 Rolls Rep. 57. p. Jac. 1 Rolls Ab. 902. Where a Sheriff on a Fieri fac ' Retorns that New Execution he had seised Goods of lesser value which were rescued and that nulla alia bona c. the Plaintiff may not Sue a new Execution but only for the surplus beyond the value of the Goods rescued 2 Sanders 344. Mildmay and Smith If the Sheriff levy Money in Execution the Lord Keeper cannot order the Money shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it Marsh Rep. 54. If the Sheriff shall Retorn Fieri feci sed non inveni emptores then a Venditioni exponas shall go out Of the Sheriffs Selling Goods on Fieri fac ' and of the Venditioni exponas As to what Sale is good or not If the Plaintiff tenders the Debt it s a wrong for the Sheriff to sell the Goods 1 Keb. 655. Lefans Case If Goods remain in the Sheriff hands for default of buyers and there perish the Sheriff shall not be chargable But if the Sheriff refuse a buyer Action on the Case lies 2 Keb. 464. Needham's Case The Sheriff took the Defendants Goods in After seising the Goods and before sale a Supersedeas Execution by Fieri fac ' and before Sale the Record was removed by a Writ of Error into the Exchequer Chamber and a Supersedeas awarded and the Sheriff retorned upon the Fieri fac ' seisure of the Goods and that they remained in his hands pro defectu emptorum and he also retorned that a Supersedas was awarded c. and hereupon it was prayed for the Defendant that he might have restitution of his Goods Crok Eliz. 597. But per Curiam Altho this Record be removed and notwithstanding the Supersedeas awarded in regard it came not to the Sheriff till he had begun to make Execution as appears by his Retorn that a Venditioni exponas shall be awarded Venditioni exponas to perfect it And altho' the Plea Roll be removed yet it shall be awarded on the Retorn of the Fieri fac ' which remains still in the Office But as it is in 1 Keb. 324. Brownwood and Estwel if the Error were allowed before seisure then tho' the Sheriff be unpunishable in that Case yet Supersedeas notwithstanding Execution done shall go quia improvide c. And per Câ—riam if the Goods be sold the Money may be brought into Court to be restored to the Party but if not the Goods may in Goods restored in specie specie be restored But if before Sale a Supersedeas comes to him Under sale if the Sheriff after Sells the Goods without a Writ of Venditioni exponas this is void p. 8. Car. 1. Scarling and King The Sheriff sells Bricks for 7 s. per thousand on the place for which he might have 16 s. per thousand The question was Who should pay the overplus the Buyer or the Sheriffs Executors And per Curiam The Sheiffs Executors shall pay the overplus the Sale being absolute and not an Argeement to Sell 3 Keb. 285. Cutten and Hunt The Sheriff perswaded the Jury to prize the Goods at undervalue and so sold them This is an Oppression enquirable at the Assizes by Indictment Crok Jac. 426. Cayers's Case If the Sheriff upon a Fieri fac ' against J. S. Where the old Sheriff after a Writ of discharge may sell seise certain Wood whereof J. S. was possessed and the Sheriff pay parcel of the Money received and does not Retorn his Writ and after the Sheriff is removed and another Sheriff chosen and after the Writ of Discharge delivered to him he sells the Wood this is a lawful sale because by the seisure altho' the Writ is not retorned he is chargeable to the Party Tr. 3. Jac. B. R. Cro. Jac. 73. Ayer and Aderly And there a Distringas issued to the new Sheriff to distrain the
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
by him in Ejectment contains more Acres of Land than were in the Declaration the Writ is erroneous Pract. Reg. 131 132. Trespass lies against the Sheriff if he does not Execution must be done in the right places execute on the right places 1 Keb. 278. Lufton's Case If a man bring Ejectione firmae of 40 Acres of Land and recovers 30 and not the residue upon the Writ of Execution the Sheriff may deliver to him any viz. three or more in the Name of all without setting out the Land recovered Where possession of some in the Name of all good or not by Metes and Bounds altho' the Plaintiff had not recovered all the Acres whereof he had brought this Action and whereof he had supposed the Defendant Tenant But if a man be to be put in possession of divers Messuages upon a Writ of Execution and the Houses are in possession of several men he ought to go to every House particularly and to deliver Seisin of it and the delivery of Seisin of one in the name of all is not sufficient for he ought to deliver plenariam Seisinam Trin. 15 Jac. Floyd and Bethell's Case In Formedon on Non-tenure of three Messuages In what Case the Plaintiff is to shew to the Sheriff what part the Jury intended the Jury found he was Tenant of one of the Messuages and not of the other the Plaintiff may have Judgment and a Writ to the Sheriff to deliver Seisin And the Plaintiff at his peril is to shew to the Sheriff what Messuage it was the Jury did intend for the Jury is not tyed to set Bounds to it Cro. Eliz. 256. Scriven and Prince If a Writ of Execution goes to the Sheriff to Acres that are to be delivered must be according to the Usage of the Country Of Rent or Common Seisin of Rent or Common by Parol put a man in possession of 20 Acres of Land the Sheriff ought to give him 20 Acres in quantity according to the Usage of the Country where it lies and not according to the Statute Floyd and Bethel If a man recover Rent or Common upon which a Writ issues to the Sheriff to put him in possession and the Sheriff comes upon the Land and delivers to him seisin of the Rent or Common by Parol that is well made and the Recoveror is in actual possession of this 22 Assize 84. If the Under-Sheriff delivers Possession riotously Riotous possession by Under-sheriff Attorney in C. B. not to be enquired of by B. R. without Information on Extent on a Statute Merchant and the Sheriff refuseth to Retorn any Jury to enquire of the Force and he was an Attorney of the Common-Pleas the Court of Kings-Bench unless the Cause were depending cannot take notice of the Offence without an Information 2 Keb. 541. Morgatroyd versus Peebles Vid. Mo. 781 462. VVhere shall be a New Execution or not and of the Sheriffs Retorn on this VVrit ThemRecoveror is put in possession by Habere fac possessionem and the Defendant ousts him again What remedy In 2 Brownl p. 216. Stile 's Case in B. R. by After Possession and Ouster what remedy New Execution Retorn VVilliams he cannot have a New Writ of Execution but is put to his New Action and the filing of the Writ is not material for it is within the Election of the Sheriff whether he will file or retorn it or not But if the Execution had not been fully made as in the Execution of an House some hid themselves in the upper Rooms and when the Sheriff was gone they came down and ousted those that the Sheriff had put in possession before in such a Case a New Writ of Execution was awarded By the Chief Justice In this Case of Re-entry the Court may award an Attachment against him for Contempt against the Court. But in Peirson and Taverner's Case the Recoveror is put in possession by Hab. fac possess and the Defendant ousts him again if the Writ be not Retorned the Plaintiff shall have a New Retorn Hab. fac possess 1 Roll. Rep. 353. And if Hab. fac seisinam be executed it is good without Retorn yet the Court may command the Sheriff to Retorn it 1 Roll. Rep. 77. On Habere fac seisinam the Sheriff cannot Retorn That another is Tenant of the Land by Right for that cannot come in Issue between the Demandant and him and therefore he ought to execute the Writ 6 Rep. 52. Boswell's Case Upon Habere fac possess the Sheriff retorned Retorn That in the execution of the said Writ he came to the House recovered and removed out all the persons he could find and delivered to the Plaintiff possession and departed and soon after Three persons secretly Lodged in the House expelled the Plaintiff On Notice whereof he returned again to the House to put the Plaintiff in full possession but the others resisted him so that without peril of his Life he could not do it 1 Leon. pag. 145. Upton and Wells On this Retorn the Court awarded a New New Hab. fac possess Execution A Writ of Habere fac possess was directed to the Sheriff a Writ of Error was brought and a Supersedeas granted directed to the Sheriff to stay Execution And the Supersedeas was shewed to the Sheriff as he was going to do Execution yet he refused to obey Execution by the Sheriff after a Supersedeas it and did Execution notwithstanding This is a great Contempt in the Sheriff and the Court ordered a Writ of Restitution to be granted 2 Bulstr 194. Thomas and Owen Retorn of Habere fac ' possessionem VIrtute istius brevis mihi direct ' Justiciariis infrascript ' Habere feci quod tali die anno infrascript ' Habere feci A. G. plenam seisinam de un ' Messuag ' cum pertin ' in S. infra-specific ' in omnibus prout istud breve exigit requirit Note The Sheriff in Cases where Land is revered is to put the party in possession and seisin by a Twig Clod c. of an House by the Key c. of Rent by Corn or Grass growing on the Land out of which the Rent Issues 6. Rep 52. It is no good Retorn that another is Tenant of the Land by right or that he has nothing in the Land Seisin of the Land in one Vill in the name of all the Lands in 3 Vills is good Retorn of Habere fac possessionem VVirtute istius brevis mihi direct 24 die Maij Annot. infrascript habere feci infra nominat H. H. possessionem termini sui infrascript de tâ—nâ—mâ—ntis infrascript cum pertin prout interius mihi praecipitur Dalt c. 63. Infra nominat R. B. Miles nulla habet bona soâ—â— catalla terrat aut tenementa in balliva mea unde denar infraspec Fieri facere possum prout Interius mihi praecipiter Of Supersedeas If the Roll be marked for a Writ of Error What
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
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
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
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
the Plaintiff Per Cur ' The Plea is Ill for want of Place it is not said where the Court was held nor whether the Party escaped by consent 2 Keb. 567. Moor. Rep. 19. Prin and Smith To Scire fac ' on Judgment in Debt Defendant Bar by volutarily Escape ill as to party Plaintiff pleads a Capias ad satisfaciend issued out of the Court of Kings Bench and that he was taken thereupon and on Habeas Corpus out of the Common Bench he was committed to the Custody of the Warden of the Fleet and that the Warden suffered him voluntarily to Escape To this it was demurred because he concludes not aright And per Cur ' the Execution must be alledged by matter of Record and therefore he must conclude his Plea prout patet per Recordum The difference is between Process that requires no Retorn and the Record whereby he is committed is shewed The Committitur in an Action of Escape is but inducement but in a justification it is substance Upon a Capias or Latitat he need not so conclude but here is Matter of Record also here the Matter of the Bar is not the Matter of Fact but the having sued out Execution on Record And Secondly It s all one as to the Party whether he Escape by the Sheriffs negligence or voluntarily If the Party negligently Escape the Party and the Sheriff may take him again but if voluntarily then only the Party may take him again but not the Sheriff but if the Sheriff let him go by consent of the Plaintiff then neither can take him and Bar by voluntary Escape is held Ill. Judgment pro Quer ' 2 Keb. p. 187 206. Alenson and Butler 2 Keb. 802. Vilner and Allen. Until of late time the Discharge of the Gaoler was a good Discharge As in 3 Co. Ridg ways Case Hob. Case of the Earl of Essex 8 Rep. Dr. Drury's Case but now the Law is taken otherwise Vide supra In Audita Querela voluntary Escape in the Sheriff is no good surmise but that the Sheriff may retake him again Vide supra 1 Rol. Ab. 902. Trevillian's Case Hob. 202. Sheriff of Essex Escape Of Issue Evidence Special Verdict In Debt for Escape on nil debet pleaded the On nil debet Fresh persuit Defendant may give Fresh persuit in Evidence And by Hales at a Tryal at Bar said he always let them give in Evidence Fresh persuit on nil debet And by Wild it is done generally Mod. Rep. 116. 3 Keb. 305. Mosedell's Case In Action against a Gaoler upon Escape of a Evidence in Fresh persuit Prisoner in Execution If the Issue be whether the Gaoler immediately after the Escape made Fresh suit after the Prisoner c. and the Evidence is given that a Prisoner escaped out of Prison by the negligence of the Keeper and is absent a day and a night and the Keeper knows it not having many other Prisoners under his care but when he had notice of it he immediately makes Fresh suit after him and retook him This is an immediate Fresh suit to Which is a Fresh persuit maintain the Issue for covnenient persuit is an immediate persuit in Law 2 Rol. Ab. 681. Hinâ—on and Sir John Lenthal and Elton and Sir John Lenthal on Evidence at the Bar where the Evidence was that he escaped at nine a clock at night and the Notice and Fresh Suit on which he was retaken was the next Morning at nine a Clock Issue was whether A. was taken by a Capias at the Suit of B. and Evidence was taking by a Capias at the Suit of C. and thâ—â— a Delivery of a Capias at the Suit of B. to the Sheriff its good Evidence for tho' he were taken before yet this is a new taking in Law as to this Execution So if the Issue be of a taking on a Capias ad satisfaciend ' and Evidence be by a taking on a Capias Utlegat ' or pro fine with a prayer of the Plaintiff that he may remain for satisfaction Issue was whether J. S. was taken with a Capias Evidence was given by an alias Capias And good Hob. p. 54. In Debt on Escape against the Marshal and Evidence by alias Capias Evidence of Fresh persuit Nil debet pleaded The Plaintiff said he could prove that the Prisoner was at London three long Vacations The Evidence was an Habeas Corpus ad Testificand ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells and that he went 60 Miles beyond Wells before he retorned again Verdict pro Quer. for 620 l. Mod. Rep. 116. Mosedell's Case In Escape upon a Capias retorned ne unques Ne unques en son gard how tried The Prisal how tried on Cap. not Retorned Imprisonment on the Execution how to be tried How in the Case of Mayor of the Staple Arrest in one County and Escape in another where to be tried en son gard shall be tryed by Record But upon a Capias not Retorned the prisal shall be tryed per Pais Rolls 2 Abr. 574. The Imprisonment upon the Execution and not for other cause in Escape shall be tried by the Record But in Escape against the Mayor of a Staple for suffering J. S. in Execution upon a Statute Staple to go at large if the Defendant say he was not in Prison upon the Execution but upon plaint there this shall be tryed per Pais and not by Record because it would be unreasonable the Defendant should certifie a Record where he himself was concerned In Escape upon Arrest in one County and Escape in another County upon not Guilty this shall be tryed where the Escape is laid for the Action is upon the Escape Roll. Ab. 602. Action on the Case against a Sheriff upon Escape in London and the Arrest laid to be in Southampton Per Cur. The Visne shall be where the Escape was because that is the ground of the Action and not where the Arrest was 3 Cro. Richbel and Goddard Note In Action on the Case for Escape or Deceipt the Court will not charge the Visne out of the County where the Plaintiff supposeth the thing to be done Siderfin p. 87. In Action on the Case against the Sheriff of York for an Escape and declares that he arrested Charging the Visne the Prisoner in the said County and after suffered him to escape at D. in Com' Nottingham To which the Defendant pleads not Guilty this Issue may be tryed by the County of Nottingham only without joyning the County of York for the Action and Issue is upon the Escape and not upon the Arrest M. 40 41. El. B. R. Bennion and Watson Debt against the Marshal for suffering T. B. in Execution at the Plaintiffs Suit to Escape Defendant Pleads he did not suffer him to Escape And gave in Evidence That T. B. brought Evidence on non perâ—isit â—re ad Larg Attaint
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
made How the Party may Discharge himself of a Devastavit by Plea And the late practise and not by Inquisition CHAP. XV. Of Prisons To whom they belong and the place where to be kept Who may be Keepers of Gaols c. and how Forfeitable Of the Sheriff of Londons Prison and of the Marshalsea Of the Sheriffs Demeanor towards Prisoners Of the Prisoners Misbehaviour What payment of a Debt to a Gaoler shall be good And of those that breake Prison CHAP. XVI Of Executions When one may be said to be in Execution or not and when without Prayer or not To what Sheriff and of what Place or County shall Execution be awarded of a Capias ad satisfaciendum For what and against whom 〈◊〉 lies and the Sheriffs Demeanor therein and Retorns thereupon CHAP. XVII Of Fieri facias What Goods and of whom shall be taken in Execution by Fieri fac ' or not After the Sheriff has seised the Goods how he stands in the Eye of the Law either to bring Actions for the Tortious taking them away from him or to make satisfaction to the party who Recovered What 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 Of the Sheriffs selling Goods on the Fieri fac ' and of the Venditioni exponas and the Retorn What shall be a good Retorn of the Sheriff on a Fieri facias 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 Difference between the extent of a Term on Elegit and sale by Fieri facias Whether a Fieri facias on a Judgment in the Kings Bench shall go into Wales CHAP. XVIII How the Sheriff is to Demean himself in giving Possession and Seisin upon the Writs of Habere fac ' possession ' or Seisinam as to the manner of Executuing and the Retorn Of a Supersedeas Where it shall stay the Sale of Lands or Goods or not What amounts to a Supersedeas Where and when a Writ of Error is a Supersedeas Of Audita Querela CHAP. XIX Of Elegit The Sheriffs Office therein The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well Executed and what things may be Extended or not Of the Inquisition Retorns of Elegit how to be made Where New Elegit shall be had Of Extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the King's Debt Of Statute Merchant Staple Recognizance Liberate The differences of the Retorns Retorns of Scire fac The Sheriffs demeanor as to Outlawries and Capias Utlegatum and the Retorns CHAP. XX. Of Rescous Where and in what Cases Action lies against a Sheriff for a Rescous and what Action Diversity between Mean Process and Execution Where the Sheriff makes himself chargable by his Retorn Where and what Remedy against the Rescouser by Action or Indictment Of Retorns of Rescous what is good or not Of Laying the Action and how to Declare Of Rescous and Pleadings in it The Venue in this Action for a Rescue CHAP. XXI Of Escapes Some Maxims and Diversities premised Escapes as to Mean Process and 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 Sheriffs 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 and of Erroneous Process Excucusing and how far and in what Cases Where the Escape of one shall not be a Discharge of the other or where the other shall have Audita Querela or not Of Actions of Debt or on the Case by the party against the Sheriff for an Escape Who shall have such Action and to whom it shall be said an Escape or not at Election CHAP. XXII Action for Escape by Executors and Administrators where it lies or not Against whom Action of Escape lies Where Execution shall be after Execution on Escape or not 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 Actiâ—n against the Prisoner that Escapes and how to Declare against him CHAP. XXIII Of Pleadings by the Sheriff to Actions for Escape What shall be said a sufficient Fresh Pursuit and where upon Fresh Pursuit he may retake the Prisoner or not and where the Prisoner upon his being retaken shall have his Audita Querela or not Fresh Pursuit how to be pleaded Pleading the Statute of Limitations Pleading acknowledgment of Satisfaction on Record by the Plaintiff or Accord with Satisfaction Nultiel Record pleaded and how Escape by Consent of the Plaintiff and by the Sheriffs License Traverse in the Pleadings Supersedeas Protection Priviledge Bar by Voluntary Escape Venue Issue Evidence Special Verdict in Actions for Escapes Of the Escape of Felons CHAP. XXIV What Acts of the Sheriffs Bayliffs c. shall amount to a False Imprisonment or not Pleading by Sheriffs to Actions of Trespass False Imprisonment The Rules of Pleading in such Case Justification by Mean Process as to the Warrant Time Place Quae est ad eadem Transgressio what it refers to Traverse of the Time Place Pleadings and Justification by Execution By Process out of an Inferior Court of Record and how to be pleaded 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 hand Of Attachment against others and against the Goods and the Retorn Of Amerciaments Where and in what cases the Sheriff is to be Amerced CHAP. XXVI Remedy against the Sheriffs Bayliffs c. for Male-fesance as imbezelling an Exigent For entring into a Corporation which had Retorna Brevium For not delivering a Supersedeas to the New Sheriff for concealing or substracting a Writ Bayliff of a Liberty chargable for his Servant not for the Gaoler For refusing sufficient Bail and forcing to find extraordinary Bail For taking Insuffient Bail For not bringing Money levied by Fieri fac ' into Court and the Statute of Limitations pleaded CHAP. XXVII Of the Sheriffs Demeanor in Assignment of Dower and the Retorn The Proclamations The Sheriffs Office about Partition His Demeanor in the Writ De Ventre inspiciendo About Retorning a Force About a Vi Laica removenda How the Sheriff shall demean himself in a Writ of Enquiry of Waste and of the Retorns thereof Of the Writ of Estrepement and the Retorn of it The Sheriffs Office in an Excommunicato capiendo CHAP. XXVIII Of the Retorn of Clericus
Defendant be arrested by a Bayliff of a Liberty who hath the Execution and Retorn of Writs then he must retorn his Warrant back to the Sheriff by Rule of Court or Distringas directed to the Sheriff to distrain the Bayliff and so amerce the Bayliff that way Of Retorns in respect of the Old Sheriffs and New Sheriffs Upon the Cap ' the Sheriff retorns languidus Languidus in Prisona in Prisona and a Distress issues to the new Sheriff to make the formerâ— Sheriff to have his Prisoner and the new Sheriff retorns issues on the former Sheriff and an alias Distringas issues What must come in way of Retorn and not by way of surmize against the Sheriff And After one of the Councel would have surmised that the Sheriff against whom the Distress issued was dead But by the Court He shall not have this by way of Surmise but it ought to come in by the Retorn of the Sheriff Dier 25. a. The Retorn of the old Sheriff shall not conclude the new Sheriff On a Fi ' fa ' the Sheriff retorned qd ' cepit bona ad valentiam 10 l. non invenit Emptores whereupon there went out to the new Sheriff a vendition ' exponas who retorned that his Predecessor non cepit bona ideo c. and held good 34. H. 6. VVhere and what VVrits need to be retorned and where and what not Generally all VVrits of Execution except Elegit Ca. sa Habere fac Seisin Possessionem Fieri fac as Cap ' ad satisfaciend ' Habere fac ' seisinam Habere fac ' possessionem Fieri fac ' Liberate c. which are the final Process and after which no Judgment is given nor no further Process and when matters en fait are only to be done as Land to be delivered Seisin had Goods sold c. are good tho' the Writs be not Retorned or Eiled if the Execution be duly made But in case of an Elegit otherwise because the Elegit must be Retorned and why Extent is to be made by Inquisition to the intent that the Court may judge of the sufficiency of it and every Inquisition ought to be of Record Capias in Process must be Retorned 4 Rep. 67. Cap ' in Process must be Retorned Fullwoods Case in other cases the Party is at the end of his Suit otherwise of a Cap ' in Process for the end of the Arrest is that the Defendant shall appear 5 Rep. Hoes Case In a Scire fac ' for Execution it 's a good Bar that the Sheriff levied the Damages by Fi ' fac ' tho' he had not retorned the Writ More 468. Hoes Case The Writ of Retorn ' Habend ' is not retornable Retornâ— haben do 2 Rol. Abr. 434. The Sheriff was ordered to retorn an Hab ' Habere fac ' seisinam fac ' seisinam the Execution is good if he do not retorn it But perhaps a VVrit of Error in Parliament may be brought and if he will not retorn it the Court shall amerce him 1 Rol ' Rep. Godsall and Sir C. Heydon The Writs of Redisseisin and Postdisseisin are Redisseisin Postdisseisin Admeasur ' de pastur ' Dower Vicountiels and not Retornable and the Sheriff shall hold the Plea and give Judgment 2 Inst 82. So the Writs of Admeasurement of Pasture and of Dower and the parties may thereupon plead before the Sheriff in the County But these Pleas may be removed out of the County Court by Pone 2 Inst 369. Where the Sheriff Retorns Cepi corpus paratum Duces tecâ—â—â— habeo and brings him not in then the Writ of Duces tecum shall be awarded to have the Body in Court sub poena 1 Bulstr. 82. Gerton's Case Scire fac ' issues out of Chancery to the Sheriff Security of the Peace The Sheriff not to Retorn separatim of H. and the Justices of Peace to call L. before them to take Security of the Peace L. enters into a Recognizance and the Sheriff Retorns this Matter is not good the Justices should have Retorned too For the Viscount does not meddle with them as Sheriff but by virtue of this Commission only 21 H. 7. 20 21. 2 Rolls Rep. 257. Leonard's Case What shall be a good Retorn or not or how Retorns of Writs are to be made In respect of the persons that make or ought to make the Retorn As Sheriffs Bayliffs of Franchises Sheriffs If a Writ be directed to a place where there Where there are two Sheriffs and one Retorns the Writ are two Sheriffs as London Bristol c. and one of them doth Retorn the Writ its insufficient for it must be Retorned in both their Names tho' one according to Custom may execute it 21 Assize 20. Br. Officer 22. But if a Warrant be directed to two Bayliffs Two Bayliffs of a Franchise of a Franchise to execute a Writ the Retorn of one of the Bayliffs in the Name of both is sufficient Tr. 39 El. Palmer and March If a Writ directed to the Sheriff be executed How the new Sheriff ought to Retoâ—n the Writ executed in the time of the old Sheriff and after a new Sheriff is chosen the new Sheriff ought to Retorn the Writ in this manner scil Recepi hoc breve praedecessori meo directum sic Indorsatum So if upon a Warrant directed to the Bayliff So of a Bayliff of a Franchise of a Franchise to Execute a Writ it be served and after and before the Retorn of it the Bayliff is removed and a new Bayliff chosen the Retorn to the Sheriff shall not be in the Name of the old Bayliff but of the new Bayliff in the manner aforesaid for the old Bayliff is now as a meer Stranger But if a Writ directed to the Sheriff is not How if it be not executed in the old Sheriff Executed by him before he is removed and another chosen and after the Writ is Executed this shall be Retorned generally in the Name of the new Sheriff without any mention of his Predecessor The same Law is of the Bayliff of a Franchise Trin. 39 Eliz. Palmer and Marsh If a Writ be Executed by one Sheriff and before the Retorn of it a new Sheriff is chosen he ought to Retorn the Writ and not the old Sheriff because the new Sheriff is now the Officer of the Court. Maxim None can make the Retorn of a Writ but such a person who at the time of the Retorn remains an Officer to the Court. A Venire was Retorned in this manner Per T. R. Vicecomitem Istud breve cum pannello annexo mihi deliberat ' fuit per Thomam Hanmer Militem nuper Vicecomitem in exitu ab Officio suo Et sic Indorsatur Thomas Hanmer Miles nuper Vicecomes It was assigned for Error in that it appears it was Retorned by one who had no Authority for in saying Nuper Vicecomes excludes him and that
he was not Sheriff when he made the Retorn Per Cur ' Its good for it appears by the Record that he was Sheriff next before Thomas R. and this word Nuper Vicecomes indeed doth necessarily imply that he was not then Sheriff at the time of the delivery of the Writ to the new Sheriff then it must be construed that by the word nuper Vicecomes he was Sheriff at the time of the Pannel made and if he had Retorned it without the word Nuper Vicecomes it had been good Cro. Car. 189. Bethyll and Parry The Record is that the Venire fac ' to try the Issue was Retorned by J. S. Sheriff of the County of D. It was assigned for Error that J. S. was not then Sheriff of the said County And it was certified by a Record under the Seal of the Exchequer viz. That he was Sheriff upon which the Judgment was affirmed But some are of Opinion that this cannot be assigned for Error against the Record of the Court Mich. 11 Car. B. R. Smith and Smith If the Writ be Retorned by one that was not Appearance cures the Retorn of one that was not Sheriff Sheriff it s a manifest Error but if the Defendant appear afterwards and plead it s not material for his Appearance hath made it good Cro. El. p. 582. Thoroughgood and Scroggs If the Sheriff shall Retorn Mandavi ballivo Retorn to Mandavi ballivo c. how Libertatis and shall not therein set down the proper Name of the Bayliff it s not good The Sheriff cannot serve a Writ in part and write to the Bayliff of a Liberty to execute the other part as a Writ served as to part of the Jurors But if the Sheriff upon a Capias in Debt against Three Retorn that he had taken Two and as to the other Mandavit Ballivo Libertatis c. good The common Form of Vic' Ret ' is Feci quoddam Warrant ' but to the Bayliff of a Liberty Mandavi c. 2 Roll. Rep. 263. Praecipe quod reddat was awarded Vicecomitibus Sheriff cannot Retorn He summoned himself Glouc ' versus A. B. C. The Sheriffs Retorn that the said C. was one of the Sheriffs of the said City Ideo ego praefat ' C. c. alter Vicecom ' Civitat ' praedict ' meipsum secundum Exigentium brevis istius summonere non possum Respons It was Adjudged a good Reâ—orn Bendl. n. 160. The Retorn was in this Form upon a Writ of Entry against Edw. Mytchell Thomas Wykes and others Summ ' infranominat ' Edward ' Mychell R. Fenn J. Denn quoad summ ' praedict ' Tho. Wykes Justiciar ' infrascript ' Certifico qd ' idem Thomas ego Tho. Wykes jam unus Vicecomit ' Civitatis praedict ' sum ' unus idem non alius neque diversi Ideo ego praefat ' Thomas Hugo Hyde alter Vic' Civit ' praedict ' meipsum secundum Exigentiam brevis istius summ ' non possumus Respons praedict ' Thomae Wykes Hugonis Hyde Vic' Anderson 110. n. 21. Bayliffs of Franchises vid. suprà Retorn ' de Vic' per Bayliff If a Writ to enquire of Damages be directed The Sheriff cannot Retorn a Writ of Inquâ—ry â— â—iâ—ected to himself to be executed by a Bayliff of a Liberty to the Sheriff he ought not to make such a Retorn That he had Commanded such a Bayliff of such a Liberty c. Cui executio praedict ' brevis tâ—talit ' restat fienda quod alibi infra Com' praedict ' per se fieri non potuit qui quidem Ballivus sic sibi respondet and so sets down an Inquisition before the Bayliff and 40 l. damage This Retorn is erroneous untrue and against Law because the Warrant was directed to the Sheriff himself to be Executed in any part of his Shire and no Venue contained in this Inquest of Office as there is in other Writs which Intitles the Bayliffs of Liberties But because there were divers Presidents of this Form the Court would not Reverse it Hob. p. 83. Virely and Gunstone If the Sheriff Retorn That the Bayliff of a Franchise who had Retorn of Writs had Retorned c. this is good altho' he doth not shew of what place he is Bayliff 29 Ed. 3. c. 1. W. had a Cap ' ad satisfac ' to the Sheriff of New Process because the Retorn was mistaken Middlesex and makes Precept to the Bayliff of the Dutchy and the Precept was Ad capiend ' H. ad respond ' W. where it should be ad satisfaciend ' and the Bayliff retorn the Precept served and the Sheriff retorns to the Court Cepi corpus secundum Exigentiam brevis it was moved to have a new Cap. ad satisfac ' against H. For tho' the Sheriff by his Retorn had Charged himself to the Plaintiff so that he may demand Execution against him yet where in truth the Defendant was never taken in Execution for the Debt as here but only taken ad respondend ' there the Plaintiff is at liberty to take new Process against the Defendant which the Court granted Yelv. 52. Wood and Harborn Presidents Mandavi ballivo qui nullum dedit responsum 2 Sand 99. Jaques and Cesar Mandavi ballivo upon Fieri facias and upon Non omittas awarded Vic' ret ' nulla bona 1 Sand. 305. Merchant and Driver The Form What Retorns shall be good in respect of the Form or not and where Insufficient Retorns are aided As to the Sheriffs setting his Name to the Retorn vide suprà Sometimes the Retorn is Insufficient for omission Omission of Words As where the Retorn was Residuum hujus brevis apparet in quadam Schedula for Residuum executionis hujus brevis Fitzh Ret. 14. And the Sheriff is bound to take knowledge of the Law in making his Retorn therefore in a Scire facias to L. B. Master of the Grammar School of S. c and to the Scholars of the same he retorned that Scire fecit to the Master and doth not say To L. B. Master Bro. Ret. 88. In a Scire fac the Sheriff retorned Scire feci A. B. modo forma prout istud breve exigit requirit and said not infra nominat ' A. B. yet per Cur ' its good for these words prout hoc breve exigit are tantamount 2 H. 4. 13. 3. H. 4. 9. The Sheriff retorned Non inveni for Non est Retorn Non inveni is Error inventus and the party thereupon was Outlaw'd This was assigned for Error and not amendable Fitzh 19. A Retorn by the Sheriff in the Third person A Retorn in the 3d person not good is not a good Retorn The Sheriff retorned Quod praecepit ballivo de S. for Praecepi ballivo and he was amerced for it 21 Ass 17. The Sheriff upon a Capias retorned That he Rescous retorned arrested the Defendant at S. and would have carried him to the
of the delivery of the Capias had the person in Custody at Galloway in the City of Dublin and the Action is brought in the County of the City Per Sanders On a Capias delivered to the Sheriff out of the County he is not bound to hold him there So upon a Latitat which is no Warrant to the Sheriff to take him but only in his Bailywick Per Cur ' This may be by Habeas corpus or Fresh Suit and being after Verdict that finds the False retorn for the retorn was Non est inventus in balliva and the Jury find that he was in balliva at the retorn of the Writ the Court will presume him legally in Custody 3 Keb. 557 561 600. Bradshaw and Andrews Plaintiff declares he had prosecuted a Capias against Chapman who was indebted to the Plaintiff in 100 l. and delivered it to the Sheriff at Newport P. and that the Sheriff postea adtunc ibidem potuisset arrestar ' the said Chapman but that the Defendant machinans to delay the Plaintiff c. arrestare the said Chapman c. adtunc ibidem abstinuit recusavit and had falsly retorned Non est inventus Defendant pleads Non culp ' and Verdict pro Quer. Per Cur ' After Verdict the Declaration is good enought and tho' potuisset arrestare without shewing how or that the Defendant was in view of Chapman and potuisset denotes a possibility and this is true if he were in the County and the Sheriff is not bound to attend his Office in every particular case yet it shall be intended such Matter was given in Evidence by which it appeared to the Jury that the Sheriff potuisset arrestare and the Declaration quod recusavit doth imply Opportunity But it was agreed to be good Cause of Demurrer Sir Tho. Jones p. 40. Fish versus Aston Sheriff of Bedford Error brought by the Sheriff upon a Judgment against him upon a Writ of Scire fac ' for an ill Retorn of a Fieri fac ' 2 Sand. 338. Actions against the Sheriff for Non-feasance For not retorning of Writs If a Capias issues against J. S. and the Sheriff doth not make any retorn upon the said Writ he is a Trespasser ab initio and false imprisonment lies against him 16 H. 7. 14. 3 H. 7. 36. 21 H. 6. 5. 5 Rep. Hoes Case Before the Stat. VV. 2. 19. Regularly for not retorning a Writ the Sheriff was amerced Quousque c. but for a False Retorn or imbesilling the Writ Action lay at Common Law Co. 2 Instit 451. Rast Entries 501 626. Presidents of Actions on this Statute This Statute prevents the Retorn of a Tarde i. e. quod breve adeo tarde venit quod praeceptum Regis exequi non potuit It 's a Question in Sir VVilliam Clarks Case if â—up utlegat Action on the Case lies against a Sheriff for not retorning a Cap. Utlegat It seems it does for the Party has loss by not retorning the Writ tho' the Queen may amerce him for his Contempt Cro. Eliz. p. 873. Sir VVill. Clark Action on the Case lies against a Sheriff for not Summons retorning a Summons 1 Leon. 146. Marsh and Astrey If a Capias be retorned out of an Inferior Inferiour Court Court to an Officer of the Court to take J. S. and he took him accordingly and does not retorn the Process he is a Trespasser ab initio for as much as he is the Officer that ought to retorn it Bayliff errand or Servant not to be punished for not retorn of the Sheriff and he is a Sheriff within his jurisdiction 2 Rol. Abr. 563. Kirk and Atkins If a Capias in Process be awarded to the Sheriff and he makes his Warrant to a Bayliff-errant who is a sworn and known Bayliff within â—he County to take him and he does it accordingly if the Sheriff does not afterwards retorn this Writ it shall make him a. Trespasser ab initio because he is but the Sheriffs Servant and for this he ought to be subject to the wrong done to the party as his Master is 20 H. 7. 13. 21 H. 7. 22. M. 14. Car. B. R. How and Stocken har But if the Bayliff-errant in that Case retorn the Body and the Warrant to the Sheriff altho' the Sheriff doth not retorn the Writ yet he is excused And if the Sheriff upon such Process makes special Bayliffs and they take the Party and the Sheriff doth not retorn the Writ altho' there is not any default in the Bayliffs yet they are Trespasser ab initio because they are but Servants to the Sheriff and by his appointment but this seems a sorry reason And I take it Girling and Allens Case is good Law For tho' the Sheriff ought to retorn his Writ otherwise his Justification in False Imprisonment is not good yet it is not so with his Servant for he has no means to inforce the Sheriff to make retorn thereof and if what he does is legal it shall not be made illegal to him by the act or default of another Crok Car. Gilling and Allen. 11 Car. B. R. Upon a Capias in Process if the Sheriff makes Where no default is in the Bayliff of a Franchise he is excused his Warrant to a Bayliff of a Franchise to execute it who does it accordingly and makes retorn of the Body and Warrant to the Sheriff and the Sheriff after does not retorn the Writ yet this shall not make the Sheriff a Trespasser ab initio because he had done his duty and no default is in him and he is the Officer of the Franchise and not of the Sheriff 8 Ed. 417. b. 21 H. 7. 22. The Court was moved that the Sheriff may Sheriff not to file the Retorn depending Action on the Case against him not be admitted to file the retorn of a Writ because action on the Case was depending against him for not retorning it because then the Action would abate and it was granted by Rolls Stiles 408. Laying the Action and Declaration for not Retorning In a Writ of Entry sur disseisin the Land lying in the County of H. if the Plaintiff deliver the Writ of Summons to the Sheriff of H. in London and after the Sheriff summons the Defendant upon the Land and after doth not retorn the Writ for which Action on the Case is brought in London where the Writ was delivered to him and the Defendant pleads he did not summon him c. upon which they are at issue this may be tried in London 2 Roll. Abr. 807. Rash and Astrey Action on the Case against an Undersheriff and declares whereas the Plaintiff had brought a Writ of Entry against H. C. and delivered it to the Undersheriff to be executed in forma Juris and gave him two shillings for the executing of it and that at such a day he caused the said H. C. to be summoned yet falso c. he did not retorn the
Comyn's Case Cro. Jac. 161. But in the principal Case which was Error of a Judgment in Durham such Case was amended because the Justices of Durham Amendment in Durham and why are Original Judges of the whole Record and had the Record before them at the time of the Trial and the Writ being variant might be amended there Cro. Jac. 161. Goodwin's Case The Venire was between Heath and J. T. and the Sheriff retorned it to be between Heath and W. T. This was a Mis-tryal and Judgment shall not be for the Plaintiff Winch. p. 73. Trist's Case Venire fac ' bears Teste on a Sunday it was amended after Trial Short and Arundel's Case A Venire fac ' bore Teste out of Term and made Amendment by the Roll. to accord with the Roll Gonnel's Case and a Distringas was amended a long time after the Trial yet the Roll being good it was amended Cro. Jac. 161. Comyn's Case Venire awarded Vicecomitibus Lond ' praecipimus sibi was amended after Verdict So if after the Hebeas ibi hoc breve if the nomina Jurator ' be left out Cro. El. 543. Roll. 201. In the award of a Venire fac ' super quo praeceptum fuit Vicecomiti Com' c. it is Error it ought to have been Praeceptum est 2 Sand. 393. The Nisi prius Roll is That Challenge being Amendment made to the Sheriff after Issue and Confessed a Venire fac ' was awarded to the Coroners but the Roll of Nisi prius was that the Venire fac ' was awarded to the Sheriff Per Cur ' This Roll of Nisi prius being a Misprision and which ought to be warranted by the Record ought to be amended Cro. Jac ' 353. Sir Ed. Musgrave Winch. Rep. p. 73. If the Sheriff retorn That there are no Freeholders Where a Venire fac ' shall be of the Issue next â—â—ning of the Visne or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of â—ly c. the Plaintiff may pray a Venire fac ' of the Visne next adjoyning and if the Visne be in Wales where the Kings Writ runs not the Venire fac ' shall be directed to the Sheriff of the next English County to cause the Jury to come de propinquiore Visne of his County to the Visne in Wales adjoyning for the Court shall not be ousted of the Plea Fitzh Abr. tit Visne 8. Jurisdict 24. If the words quorum quilibet habeat be left out or duodecim or qui nulla affinitate attingunt these are amendable as Mistakes of the Clerks Roll. 204 205. Venire fac ' was in this manner Jacob ' c. Vicecomiti salutem and saith not oâ— what County it was amended Cro. Jac. 78. Low and Lacock Venire fac ' what Retornable coram Majore Ballivis de Exceter without saying in Curia vel hic It s Error because it may be Retorned in a Tavern Siderfin p 77. Davies and Pitts If a Venire fac ' be quasht for Consanguinity to the Sheriff a Venire fac ' de novo shall be granted to the Coroners 2 Roll. Abr. 720. The awarding of a New Venire fac ' to the Sheriff where the Veniri fac ' was quasht for Favour in the Under-sheriff is not Error 1 Roll. Rep. 272. A Venire fac ' is to the Coroners without any Process directed to a wrong Officeâ— not amendable Suggestion at all of any Challenge to the Sheriff This is not aided by 21 Jac. c. 13. nor by the 16 17 Car. 2. c. 8. and the Court cannot amend this direction of Process to a wrong Officer and the Court cannot examine the Truth without a Suggestion And Judgment was arrested 3 Keb. 624. Hancock and Weyman Venue awarded to the Coroners and Tales to the Sheriff is Erroneous Cro. El. 574. Morgan and Wye If a Venire fac ' be directed to the Coroners all the Coroners ought to joyn in the Retorn and so both of the Sheriffs of London ought to joyn or else the Retorn is not good Hobart 97. The Sheriff need not retorn the Names of all the 24 on the Distringas Hab ' corpora or Venire fac ' nor affix them to the said Writs 1 Keb. 418. Coldham and Loe. And it was agreed per Cur ' 2 Roll. Rep. 111. Distriugas amended per le Vic' because the Venire fac ' was good and well Retorned the Distringas shall be awarded by the Sheriff 2 Roll. Rep. 111. If a Distringas sicut alias issue against the Jury and no other Distringas was awarded against them before by which the supposal of the Writ is false yet this is not Error for the Venire fac ' serves instead of a Distringas 2 Roll. Rep. 133. The Pannel of the Hab. corpora was amended upon the Sheriffs Oath And where the Distrngas was blank yet the Venire fac ' was well retorned Cro. Jac. 483. Church and Wright A contrary Distringas is by the Sheriff put to the right Pannel and Tried The Trial was held good so tho' no Distringas had been for as this is there is no Writ between the parties 3 Bulstr. 180. Fowkes and Child Tales not retorned by the Sheriff or his Deputy or any sworn Officer but by a Clerk of the Court by general appointment of the Sheriff it s well enough and the Sheriff is answerable for it 1 Keb. 357. Lestrange and Temple Array retorned by the Sheriff after his Discharge is not good Cro. El. 369. Hore and Broom Presidents Distringas Juratores on the Hustings vid. the Form 2 Sand. 240. Retorn ' de Venire fac ' Jur ' Executio istius brevis patet in quadam pannella huiâ— brevi annex ' A. B. Armig. Vic' Nomina Jurator ' inter A. B. Quer ' C. D. Def. in placito Transgress Then Write down the Names of the 24 Jurors thus A. W. de E gen ' sic ad 24. F. C. de W. Yeoman sic ad 24. Quilibet Jurator ' praedictor ' per se separatim Manucapt ' Or Attachiatus est per pleg ' J. D. R. R. A. B. Armig ' Vic' The like in the Habeas corpora Only in the Retorn of this Writ the Sheriff must retorn Issues on every person Exitus eorum cujuslibet x s. or more Dalt c. 58 CHAP. XI Of Habeas Corpus and Retorns upon it Of Habeas Corpus The several sorts and the consequence thereof Of the Retorns of Habeas Corpus by the Sheriff c. and in respect of the Courts commanding Rules on Habeas Corpus who to pay the Charges The Forms of the Retorns AN Habeas Corpus is either ad subjiciend ' which Habeas Corpus ad subjiciend Habeas Corpus ad respondend ' recipiend c. is granted on the Criminal side or an
and the Sheriff persues him and breaks open the Doors of his House and takes him again the party shall never take benefit of this his own wrongful escape Two of the under Sheriffs Bayliffs entred into the House the Door being open to take Execution of the Goods and the Plaintiff shuts the Door upon the Bayliffs and imprisoned them for two hours the Sheriff may break open the House to Rescue his Bayliffs Cro. Jac. 555. White and Wiltshire Note the Sheriff was fined for breaking open an House and rushing in with Sword drawn the Door being half open on private Process By the Stat. W. 1. c. 15. the Sheriff may break open an House or Castle to make Replevin when the Goods of another are Conveyed there 5 Rep. Semain's Case If a Bankrupt convey his Goods to his Neighbours House the Serjeant Commissioners may not but the Sheriff may break open the House because he is a sworn Officer of the Kings Goodwins Law against Bankrupts 65. Quer. Upon a Commission of Rebellion out of Chancery the Sheriff may break open the House to apprehend the party therein whether in his own or anothers House Cromp. fo 47. The Sheriff may take the posse Comitat. to do Execution Per Stat. W. 2. c. 39. and he may take it post vel ante querimoniam but he may take it after resistance and not before for sequi debet potentia justitiam non praecedere Co. 2 Inst p. 454. But suppose the Sheriff cannot do Execution Posse Comitat by the posse Comitatus then saith the Book 1 Keb. 99. 117. he ought to acquaint the Deputy Lieutenants of the County and if they assist not he must acquaint the King and Council and yet the Sheriff shall not be amerced if he return he cannot do Execution but in Godbolt 79. upon a resistance of Execution the Council Table refused to meddle in it because the Court of Kings-Bench ought to see their own Judgment executed and a Writ was prayed to the high Sheriff with a special Rule that the high Sheriff should execute it himself which the Court granted and a Tipstaff to fetch the under Sheriff up to return his Writ which is better than an Attachment which is returnable by it self 1 Kel 99. 117. Godbolt 79. Bush and Chamberlaine To what Sheriff of what place or County shall Execution be awarded If Recognizance of Bayl be taken by a Judge of the Common-pleas at Serjeants Inn in London upon an Original brought in London and certifies this into the Court of Common-Pleas and is there enrolled but it appears on Record that it was taken as before a Scire fac ' may be awarded upon this Recognizance to the Sheriff of London where the Capias was for there was the Commencement of it and also the Scire fac ' may Scire Fac. the Sheriff of London or Middlesex on Recognizance of Bail be awarded to the Sheriff of Middlesex where the Recognisance was enrolled 1 Rol. Abridg ' 891. Johns and Lee Andrews and Harbin Poltney and Forebench Feildgate and Gardener contra 5 Mariae by Brook And by all the Prothonotaries then it ought to be brought in London and not in Middleseas But in 13 Car 1. the Prothonotaries certified that it may be brought in London or Middlesex W. 2 c. 18. saith Vic. ei liberet Medietat ' per rationabile extent viz. per inquisition and the Sheriff Serjeant at Mace may execute Elegit is sworn and a Serjeant at Mace is not sworn to take a Jury yet the Stat. extends to every other immediate Officer to any of the Kings Courts of Record and so a Serjeant may execute this and a Fieri Fac ' also and this Stat. couples Elegit with a Fieri Fac ' and limits both to be executed by the Sheriff but in Wast and Redisseisen the Sheriff must do it in person 4 Rep. 65 66. Fullwoods Case If a Man recover Damages in Action of Wast The Writ to levy Damages in Waste to whom to be derected in one County the Writ to levy them shall issue to the Sheriff of the same County where the Action was first brought and not to any other but if the Sheriff retorn he had nothing he shall have execution into any other County where the Recoveror will 29 Ed. 3. 9. b. Having treated of Executions in general as far as relates to Sheriffs I shall now proceed to speak of Executions in particular as to the Sheriffs demeanor about the executing of them and making due Retorns upon them And ' it s a Point very fit for the consideration of all Sheriffs specially There are but 4 mannner of Executions Two by the Common Law and Two by the Stat. Law by Common Law Levari Fi ' Fac ' Executions Stat. Staple St. Merchant Recognizance By Statute Law Capia Elegit Of which I shall treat distinctly limiting my self therein to the duty and Behaviour of Sheriffs And first of the Capias Capias ad Satisfaciend is a judicial Writ and lyes where a man hath recovered in a personal Action any Debt or Damages in the Kings Court directed to the Sheriff to command him to take the Body of the person condemned in Debt and to put him in Prison till satisfaction made Of Capias ad satisfaciend ' against whom and Cap. ad sa for what it lies and the Sheriffs demeanor therein and retorn thereof It lies not against an Earl Duke or Baron or their Wives except in some special cases nor against an Heir or Executor except in false pleading It lyes against such Presons against whom a Lyes not for a recovery of Damages in all Actions Capias doth lye in the commencement of a Suit as Debt Account Action on the Case Trespass Vi Armis Annuity and Covenant but it lies not for a recovery of Damages in a real Action If one be in Execution by Ca. Sa. which is returned no other Execution can be sued against him his Lands and Goods vid. Stat. 21 Jac. 14. A Capias is to have the Body of such an one such a day and the Sheriff brings the Body or retorns the Writ before the day It is good Winch. p. 7. If one be delivered in Execution by the Kings Writ he is presently in Execution and in Custody without Laying hands on him to Arrest him by Cok. C. J. The Sheriff is to be Excused for taking one Sheriff takes one by a false name by a false Name in Execution and if the Judges admit this false Name yet the Judicial Writ ought not to be Examined by the Sheriff Lane Rep. 49 52. Doyly and Jolliff One in Execution may not be discharged by Habeas corpus or Writ of Priviledge and if one taken on Contempt be taken in Execution he shall not be set at Large Siderfin 289. Swallowe's Case Id. p. 90. The Sheriff may execute Process of Execution Execution against one attaint of Felony against one attaint of Felony
Ancient Sheriff to expose to sale which does not give to him Authority to sell but compells him to do that which he might do by Law But if upon a Fieri fac ' the Sheriff Retorns that he had seised the Goods but non invenit emptores and But the old Sheriff after removeal may not sell upon non invenit emptores retorned Venditioni exponas after he is removed and a new Sheriff made the old Sheriff may not sell them after tho' a Distringas come to him and if he sell them the sale is not good for the new Sheriff must sell them P. 32. El. Dodd and Conney 2 Latch 117 Dixson's Case A Venditioni exponas may not be awarded if it appear that the Goods are out of the Hands of the Sheriff 2 Sanders 344. Mildmays Case What shall be a good retorn of the Sheriff on a Fieri fac ' or not Note If the Sheriff do make Execution on Where there needs no Retorâ— on Fieri fac ' Fieri fac ' tho' he never retorn the Fieri fac ' yet the Execution is good Aliter in Elegit Vid. infra And if the Sheriff levy the Money and give it the Plaintiff tho' he never make any Retorn to the Court it is good enough 4 Rep. 64. Fullwoods Case and p. 90. Hoes Case The Bayliff of the Savoy levied Goods and yet Retorns nulla bona on Attachment and for causesaith that one V. at the time of the Execution shewed a Bill of Sale on good consideration whereby if he executed he was liable to an Action and therefore without Security to save Security to the Sheriff him harmless he refused to make any other Retorn which the Court agreed and ordered the Money to be brought into Court and as the Trial goes between the Sheriff and V. the retorn to be amended or not 1 Keb. 901. Upon a Fieri fac ' the Sheriff retorneth qd ' nihil habet this is not good without saying further nec habuit post receptionem brevis 39 H. 6. Fitz. Ret. 30. On Recovery of Debt on Fieri fac ' directed to Ret ' quod Clericus est beneficiatus the Sheriff of London he retorned qd ' Clericus est beneficiatus in Ely The Court conceived this retorn improper in regard there should have been a suggestion on the Roll after the retorn made by the Sheriff of London that the Defendant had Goods in Ely and that the Sheriff of that County should have made this Retorn of Clericus beneficiatus Now if the Sheriff of London retorn nulla bona but that he is Clericus beneficiatus in Ely thereupon went a Fieri fac ' to the Bishop of Ely on Testatum and he retorned that he had nulla bona Ecclesiastica this retorn by some is not good but he ought to Retorn a Sequestration having admitted him to be Clericus beneficiatus but he is not estopped to say that he is not Clericus beneficiatus by the Retorn of the Sheriff The Court agreed the Fieri fac ' well directed to the Bishop and not to the Sheriff but they conceived it a good Retorn and if it be false the Plaintiff may have his Action on the Case 1 Keb. 497. 2 Keb. 83. Picard and Payton On a Statute if the Sheriff retorn quod est Clericus beneficiatus nullum habens Laicum feod ' nec bona nec catalla but that he is beneficiatus in such a Diocess then a Writ of Sequestration shall go to the Bishop to Sequester the Profits and to deliver them to the Conisee until he be satisfied 2 Rolls Abridgm 474. Pope and Bautree If there be false Retorn on a Fieri fac ' the Action on the Case on a false Retorn on Fierifaâ— remedy is by Action on the Case In a Fieri fac ' to the Sheriffs of London they Retorn nulla bona but that he is Clericus beneficiatus in Ely upon which a Writ issues to the Bishop of Ely and he retorns nulla bona Ecclesiastica If it be so that he hath a Spiritual living the Plaintiff may have Action on the Case against the Bishop Siderfin p. 276. The Party may aver the value of the Goods greater than the Retorn but the Sheriff is Estop't 2 Keb. 789 821. Retorn of a Fieri facias VIrtute istius brevis Fieri feâ—i de bonis catallis terris tenementis infranominat ' R. B. ad valentiam 200 l. illa de die in diem venditioni exposui iâ—de vendidi ad valentiam 100 l. Quâ—â— quidem centum libras ad diem locum infra Content ' parat ' habeo ad reddend ' infranominâ—t ' J. W. prout interius mihi praecipitur resid ' bonorum catallorum praedict ' adhuc penes me remanenâ— iâ—vendit ' ob defect ' emptorum VIrtute istius brevis cepi bona catalla A. W. infrascript ' ad valentiam omnium denariorum infrascript Et illa venditioni exposui ad quod nondum inveni emptores Et ideo denarios infraspecificat ' habere non possum ad diem locum infracontent ' prout mihi praecipitur Other Forms of Retorns vid. Dalton cap. 61. Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judgment in what Cases it shall be and in what not If a man recover Damages and had Execution by Fieri fac ' and upon a Fieri fac ' the Sheriff sells the Term for years to a Stranger and after the Judgment is Reversed he shall only be restored to the Moneys for which the Term was sold which was by default of the party and not to the Term it self because the Sheriff had sold this by Command of the Writ of Fieri fac ' Dyer 363. 8 Rep. 143. Dr. Drury's Case 19. b. Matthew Manning's Case 5 Rep. 90. b. Hoe's Case So if the Goods of a man Outlawed be sold by the Sheriff upon a Cap. Utlagat and after the Outlawry is Reversed by Writ of Error he shall be restored to the Goods themselves because the Sheriff was not compellable to sell these Goods but only to keep them for the use of the King 5 Rep. 90. Hoe's Case But upon Fieri fac ' he shall have Restitution only to the value 1. Else none would buy 2. By Fieri fac ' the Sheriff is compellable to levy the Debt upon the Goods One is compulsio the other voluntas 8 Rep. 143. Dr. Drury's Case If a man recover Damages as suppose in a Writ of Covenant against B. and had Elegit of his Chattels and of the moiety of his Lands and the Sheriff upon this Writ delivers a Lease for years of Land which B. had to the value of 50 l. part of the Sum recovered and after B. Reverseth the Judgment he shall be restored to the Term it self and not to the Value For tho' the Sheriff might have sold the Term upon this Writ yet here is not any Vendition to
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
are that the Plaintiff capt fuit virtute brevis nostri judicialis and this word judicialis is not in the Register but only brevis nostri de Capiendo yet adjudged good 1 Leon. 73 Arundell and Morris Audita Querela on escape of the Testators Creditor and recovery against the Marshal Defendant protestando that the Plaintiff escaped after the Defendant recovered against the Marshal and the Plaintiff did not pay the Marshal absque hoc that the Marshal satisfied and paid the Testator This case differs from all others of escape by consent of the Gaoler this being not purely Debt which goes over to Executors but is grounded on a Tort general by the death of the Gaoler the Court concluded that recovery against non payment to the Marshal was no discharge of the Plaintiff in this Audita Querela But Adjornatur to take Issue on payment by the Marshal to the Creditor viz. the Defendants Testator 3 Keb. 763. Gardner and Sedgwick One was Outlawed in Debt and taken upon Outlawry Pleaded to Audita Querela where 't is good or not the Capias and committed to the Fleet and the Warden suffered him to go at Large voluntarily and after the Executor of the Plaintiff in Debt takes him in Execution again upon a new Writ and upon this he brought Audita Querela and shews this matter and Outlawry in the Plaintiff in the Audita Querela was pleaded Per Cur. it is a good Plea because this Writ is not directly to Reverse the Outlawry as Error is but is founded upon a Tort scil upon the Escape and not upon the Record only aliter in Error or Attaind Outlawry is no Plea nor is there any difference as to this Case where the Outlawry is at the Suit of the Defendant or of a Stranger Vid. other good reasons Sider 43. Jason and Kete If upon Elegit the Sheriff takes an Inquisition and there are found several Lands subject to the extent and found of the several values and the Sheriff Retorns he had delivered some of the said Lands in Particular for the Moieties where it appears that according to the values found an equal Moieties is not delivered to the party who recovers but more than a Moiety this is not void neither is it a Disseisin by the Entry but only voydable by an Audita Querela Tr. 15. Car. 1. B. R. Rowe and VVeeks If A. recover against B. Debt or Damages and Elegit is granted to the Sheriff to extend the Moiety of his Land which is ancient Demesns altho it be admitted that this is not extendible yet B. may not avoid this by Entry without Audita Querela because the Sheriff had a Warrant to deliver the Moiety of half his Land and this was his Land Ergo not void Hob. p. Cox and Barnaby CAP. XIX Of Elegits and the Sheriffs Duty therein and of the Retorns thereof The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well executed and what thing may be executed or not Of the Inquisition Retorns of Elegit how to be made Where a new Elegit shall be had or not Of extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the Kings Debt of Stat. Merchant Staple Recognizance The difference of the Retorns Retorns of Scire fac the Sheriffs demeaner as to Outlaries and Capias Utlagatum and the Retorns Of Elegits c. ELegit is a Judicial Writ given by the Stat. The nature of an Elegit as to Lands or goods VV. 2. c. 18. either upon a Recovery for Debt or Damage or upon a Recognizance in any Court. By this Writ the Sheriff shall deliver to the Plaintiff omnia catalla debitoris exceptis bobus afriâ— Carucae medietaten terrarum and this must be done by Inquest taken by the Sheriff for the valuation of the Goods and Lands ought tobe first found by the Inquisition of a Jury VV. 2. c. 18. gives the Elegit so that in Elegit the Sheriff may take in Execution the Moiety of the Lands of the Conizor c. and all his Goods and Chattels except as aforesaid and was to deliver them to the Conisee or he who recovers upon a reasonable extent or price until the Debâ— be satisfied and the Sheriff shall deliver him the Seisin of the Land and he is called Tenant by Elegit and shall do no VVaste 4 Rep. 47. The Elegit as to Goods is in effect but a Fieri fac and therefore if there be no Lands and Execution be upon Goods and they are not sufficient he may have a Capias aliter if Lands be extended If one prays to have Elegit and the Sheriff Retorns he has no Lands and he prayed a Capias but the Court granted it not the cause is the Entry in the Roll is that he hath chosen the Execution of the Moiety of the Lands which he must stand to 30. Ed. 3. But the Law now is not so for if the Sheriff return Nihil the party may have a Capias Hob. 57. Elegit how to be managed by the Sheriff that so it may be well Extended and what things may be executed or not As to what things may be extended or not you must know All the Goods and Chattels in which are included Leases for Years Leases for Years shall be extended except Oxen and Beasts of the Plow the Moiety of the Lands Vid. infra how it shall be done A Rent seck where there is not any Reversion A rent seck cannot be delivered ut liberum Tenementum Cro. Eliz. 656. VValshal and Heath Annuity Certain is extendible by Elegit Cro. Annuity Jac. 78. York and Twine Lands in Ancient Demsne may be delivered Aunc demesne in Execution by the Sheriff by force of an Eelegit out of the Kings Court for the Land it self was never put in plea directly in the Kings Court Vid. the Million Act. 5. Rep. Aldens Case Hob. 47. Cox and Barneby If the Lands descend to an Infant the Sheriff shall cease to extend As to the Inquisition Note If the Inquisition in Elegit be void in Inquisition void in any part void in the whole any part its void in the whole and the whole must be quasht and not quoad that only so if more than a Moiety be delivered on the Elegit it is void for the whole 2 Keb. 582. Harris's Case Siderfin p. 91. Berry and Wheeler It was moved in the said Case of Harris to quash an Inquisition of Elegit upon Judgment in B. R. because it appears not in what County the Lands extended were but Monmouth being in the Margent and directed to the Sheriff there and the Retorn made by him it shall be intended in Monmouth 2 Keb. 582. Upon a Writ of Extendi facias upon a Statute The Jury cannot alter a Verdict in substance if the Sheriff Impannel a Jury and they deliver the Verdict to the Sheriff in
aut in manus dicti dom Regis capi aut seisiri possint Quae quidem manerium terr tenementa praedict cum pertinentiis Ego praefat Vic. die captionis hujus Inquisitionis cepi in manus dict dom Regis per Extent praed In cujus rei testimonium tam ego praefat Vic. quam Jurat praed huic Inquisition sigilla nostra alternatim apposuimus die anno loco supradict ' c. A. B. Armig. Vic. Extent on a Statute-Merchant issued out Retorn against R. the Conisor the Sheriff Retorned That the Conisor was possest of divers Goods and seised of Lands which he delivered to the Conisee and that the Conisee accepted of the Land and because the Sheriff did not Retorn That he had not any other Lands Goods or Chattels It was Adjudged Insufficient and a new Writ awarded tho' some held it was well enough in the Case of a Conisor but not in the Case of a Purchaser 1 Brownl 37. Fletcher and Robinson Note If the Conisor be Retorned dead Execution If the Conisor be dead how Execution to be shall be granted against his Executor without Scire fac ' to have Execution of his Goods so against the Heir and Tertenants of his Lands without a Scire fac ' Quaere 15 H. 7. 16. b. 2 R. 3 8. b. If the Sheriff do not Retorn the Capias or retorn Tardè or that he directed it to a Bayliff of a Franchise he shall be punished and yield Damages to the party grieved according to the Statute of de Mercatoribus W. 2. c. 39. Two Inquisitions taken at several days by several Juries upon one Statute-Merchant were Adjudged naught One was taken of the Lands and the other for the Lands and Goods 1 Brownl 38. If another had these Lands in Execution by Elegit or is in by discent in such Cases the Sheriff shall Retorn the special Matter i. e. in the first Case that he hath extended the Land of the Defendant But he cannot deliver the same to the Plaintiff for that another had the same in Extent before The Sheriff having an Extent upon a Statute may gather the Goods all into one place to be viewed and appraised by the Jurors and he is not a Trespassor Mo. 563. Attorney General vers Crocker As to what Lands c. shall be extended upon Statutes c. it does not properly belong to this Treatise which hath a respect only to the Office of Sheriff Note If Lands delivered in Execution on a Scire fac ' and New Writ of Execution where Statute-Merchant Staple or Recognizance or upon recovery of Debt and Damages are lawfully recovered or evicted out of the possession of the Conisee before his Debt and Damages be satisfied he shall have Scire fac ' c. and upon this a new Writ of Execution or Re-Extent to levy the residue per Stat. 32 H. 8. c. 1. 1 Inst 289 290 5 Rep. 87. Note also It is a Question in 2 Brownl 270. By whom King James Incorporated the Mayor Bayliffs and Burgesses of Berwick and granted to them the Execution and Retorn of all Writs Whether an Extendi facias shall be Executed by them or by the Sheriff of Northumberland Some said Berwick is English which appears by the Act of Parliament which confirms the Letters Patents and also they send Burgesses to Parliament Others said It is a part of Scotland and a Sheriffwick An Obligation there shall not be Tried in England and it is not in the County of Northumberland nor part of it By Siderfin p. 382. our Laws are not current there But yet in Jackson and Crisp's Case Local breach of Covenant at Berwick Tried at Belford in Cumberland 2 Brownl 270. 2 H. 7. 31. 26 H. 23. Retorns on Scire facias Scire facias is a Writ Judicial directed to the Sheriff c. and is usually to warn a man to come and shew Cause to the Court c. why Execution of a Judgment shall not be done But this Writ shall not be granted before the year and day past after Judgment given Conisor in a Recognizance dies Scire fac ' Retorn not agreeing with the Writ goes against his Executors Haeredes terrarum c. Sheriff Retorns That he had no Executor Scire feci W. H. filio haeredi praedict M. le Conisor This Retorn agrees not with the Writ yet it may be good 3 Rep. 15. Sir William Herbert's Case Scire fac ' on a Recognizance in Chancery against C. who was Retorned dead then a second Scire fac ' issued against the Heir of C. and against the Tenants of the Lands of C. which he had tempore Recognitionis vel postea The Sheriff Retorned C. Tertenant and omitted to Retorn any thing against the Heir This a Non-retorn of the Sheriff and not a Mis-retorn and is not aided by any of the Statutes of 32 H. 8. or 18 Eliz. or 21 Jac. of Jeofail The Heir must be summoned as well as Tertenant on a Recognizance It s Error The Tertenant without the Heir ought not to be charged therefore the Heir ought to be summoned for the Heir may have a Release to plead or other Matter to bar the Execution Also if the Heir be within Age the Parol shall demur and the Tertenant shall have advantage thereof And a new Scire fac ' issued ad Informand ' Curiam and the Retorn was That he had not any Lands in his Bailywick that descended to his Heir nor any Heir within his Bailywick and good enough tho' it had been better if he had Retorned who was Heir and that he was warned or that there was not any Heir in the said County Cro. Car. 295. Eyres and Taunton The Writ Commands the Sheriff to give The words of the Writ not answered in the Retorn Notice to the Tenants of the Land in Fee-simple and the Sheriff Retorns not That those which he had Retorned were Tenants of the Land in Fee-simple and so the words of the Writ are not answered 1 Brownlow Rep. 145 146. The Sheriff may Retorn 24 Tertenants of the whole and every Tenant may plead in discharge of himself or he may Retorn That each is Tertenant of so many Acres 2 Keb. 601. Henshaw's Case Scire fac ' to have Execution on a Recognizance The Sheriff Retorns the Conisor dead other Scire fac ' Issues against the Tertenants of the Conisor on which the Sheriff retorns a Scire feci to W. and R. Tenants and further that there was no Heir nor any other Tenants quibus Scire fac ' poterit la forme 1 Keb. 621. 2 Sanders 6. Jefferson and Moreton Scire fac ' against the Heir and Tertenants the Sheriff Retorns no Heir and the Tertenants appear la form 2 Sanders Jefferson's Case Scire fac ' to Tertenants the Sheriff retorns they are Summoned la foâ—me 2 Sanders 6 8 232. Scire fac ' ad audiend ' errores must be
because Resâ—ue by several retorned it is said quod adtunc è custodia ballivi ceperunt rescusserunt and doth not say quilibet eorum rescussit Sed non allocatur For it shall be intended all of them did it and tho' their Fines are several their Offence shall not be intended so 2 Keb. 436. Le Roy versus Suffeild Rescous was retorned by a Sheriff upon Arrest by special Bayliffs hâc vice scilicet That Cooke and seven others made Assault upon the Bayliffs c. and the party Arrested cepit abduxit where it should be ceperuns abduxerunt Per Cur The Retorn is good against Cooke and void against the rest and Cooke against whom the Capias issued was admitted by his Attorney to make fine which was 6 s. 8 d. Lit. Rep. p. 2. A Bayliff of a Liberty hath Retorn of Writs Rescue from a Bayliff of a Liberty how to be retorned and therefore a Rescous made from him must be retorned to be out of his hands But a Rescous made from the Sheriffs Bayliffs must be expressed to be out of the hands of the Sheriffs Bayliff for the Bayliff is but the Sheriffs Servant But as to this last it is not Law vide supra Stile 's Rep. 417. The Retorn being made by the Bayliffs of a Franchise and saying è custodia sua is not good unless he saith meâ 2 Keb. 177. Le Roy versus Claypoole The Sheriff made a Warrant Ballivis suis to arrest such a man and the Bayliff of the Liberty retorns a Rescous yet it s good Marsh Rep. p. 25. R. and W. were retorned by the Sheriff to have made a Rescous upon such a Bayliff to whom he directed his Warrant to execute his Writ Per Cur. This Retorn is insufficient because it doth not appear that the Bayliff had Retorna brevium which ought always to be mentioned Rescue from the Bayliff of a Liberty how to be Râ—tornâ—d by the Sherâ—ff on the Sheriffs Retorn And this must be so if he retorn it as the Retorn of a Liberty But here in the principal Case he retorns it in his own Name wherefore it shall be intended it was his own Bayliff and tho' he name him in his Retorn as Bayliff of a Liberty yet that is but a void addition Cro. El. 780. Lady Russel and Wood. Tho' the Sheriff arrests a man within a Liberty in the same County of which he is Sheriff and the Prisoner is rescued yet the Rescous is unlawful because the Arrest is good and it s no Offence unless it be to the Lord of the Liberty Yelv. p. 51. Winch's Case cited in Woolfreston's Case Retorn of a Rescous or Mean Process was Retorn of Rescous on mean Process quasht because it saith ad Largum ivit quo voluit and not ad Largum quo voluit ire permiser ' 2 Keb. 318. Le Roy versus Lisle Forms of Retorns of Rescous vid. Dalton 215 216. Rescous Of Laying the Action Declaration and Pleadings A Warrant was from the Sheriffs to the Bayliffs of the Liberty of Pomfret who did Execute it and there was a Rescous And the By Bayliff of a Liberty Bayliff may have the Action against the Rescuers in his own Name but he failed in proving it to be a Liberty and was Nonsuited c. And Note He was put to it first to prove the Liberty by Records Foster and Legard's Case at Yorâ— Assizes B. brought out a Latitat tempore Eliz. versus E. Arrest in one Kings time and Rescous in anothers who was served in the time of King James and E. rescued himself and the Rescue was retorned by the Sheriff of Essex Per Cur. This is good for a Latitat is within the Statute of 1 Ed. 6. and is not lost or abated by the Demise of the Queen For it s not any Original Writ but is in the nature of an Execution grounded on a Record precedent viz. upon a Bill of Middlesex so that the Latitat issues upon a Suit depending and the Latitat the nature of it Arrest was good and so the Rescous Yelv. Everard and Blach In the Declaration the time of the Arrest must How to declare be shewed upon which the Rescous is supposed to be made and it must be shewed that the Party Rescoused was in Custody of the Serjant or Sheriff from whom he was rescued Stiles Rep. 432. Gough and Cann The Plaintiff Declares Whereas one S. was indebted to him by Bond in 300 l. and for Non-payment he Sued a Latitat out of the King-Bench directed to the Sheriff of c. to Arrest him retornable at such a day intending upon his appearance and Bail put in according to the Course of the Court to Declare against him and shews the Course and Custom of the Court that he upon appearance should put in good Bail that if Judgment were had against him he should satisfie the Condemnation or render his Body in Execution That he delivered the Writ to the Sheriff of Nott ' who made a Warrant to the Bayliff of the Kings Liberty of Newark to execute it which Warrant was delivered to the L. Deputy of the Lord Burleigh Ballivi Libertat ' Domini Regis Wapentagij sui de Newark who by force thereof Arrested the said S. That the Defendant rescued him out of the Custody of the said Deputy and he Escaped c. Errors moved in the Exchequer Chamber First Because the Custom of the Kings-Bench is alledged to be that if any one Arrested comes sub Custodia Vicecomit ' he sâ—all put in Bail which Custom of the Court of putting in Bail is not so for he shall be in Custod ' Marr ' and no Declaration can be against him sub Custodia Vicecomitis But non allocatur that which is alledged of the Custom of the Court is Idle Secondly It is said he was rescued from That he was rescued from the Deputy of the Bayliff of a Liberty good Difference between Action on the Case and Retorns and Indictments of Rescues the Deputy of the Bailiff where it ought to have been from the Baliff himself or from the Sheriff Sed non allâ—cat ' for there is a diversity in this Case which is an Action on his Case wherein he shall shew the Truth as in rei veritat ' it is and not as it is upon the Retorns of Rescues and Indictments which say it is done to the Sheriff or Bayliff himself Cro. Jac. 241 Kert and Ellwis Like the Case of Burgh and Apleton Sheriff of Essex Lanes Rep. 70. Mesme Case In that Case it was declared That the Bayliff of a Liberty arrested the Party and delivered him to the Sheriffs Deputy and that he rescued him from the Sheriffs Deputy Dyer 244. And Judgment pro Querente in that Case and in Lane's Rep. p. 70. Burgh and Apleton's Case in the same Case saith that the course of the Kings-Bench is always so in Retorn of
by Order of Law But before I treat of Escapes it will be very advantagious for the better understanding thereof to set down some few Diversities which will help to settle ones Judgment in reading and considering the Cases ensuing Diversities 1. Between a Negligent and a Voluntary or Permissive Escape A Permissive or Voluntary Escape is by the assent privity and knowledge of the Sheriff Gaoler c. Vide postea Where the Prisoner may be retaken or not 2. Between an Escape on Mean Process and on Execution In Escape upon the Arrest by the same Process as a Cap ' ad respondend ' the Writ ought to surmize ad largum ire permisit non comparuit ad diem because the party was Bailable and the Sheriff might suffer him to go at Large Aliter if the Arrest be upon Execution as a Cap. ad satisfac There permisit ire ad largum is good enough Noy 72. Sheriff of Nottingham's Case Vide infra 3. Between an Escape for Debt and for Felony or Treason 4. Between an Escape by a Sheriff or Bayliff and an Escape caused by Rescousers A Rescouser shall be charged with the Debt The Sheriff or Bayliff for a Negligent Escape shall be charged with the Damages only in the same Plea as the Writ supposeth and not with the Debt Lanes Rep. p. 70. 5. Between an Escape in Fact and an Escape in Law As where a man may be in Custody without actual Arrest 6. Between Error in the Proceedings and a Nullity of the Record and how the Sheriff shall take advantage of either 7. Between an Escape in the Life of the Testator and an Escape in the time of the Executor upon Execution in the time of the Testator Note If Judgment be Reversed before Action of Debt brought for an Escape out of Execution the Action is gone 1 Sand. 38. Jones and Pope 8 Rep. 142. Dr. Drury's Case Note It was said by Twisden in 16 Car. 2. B. R. The occasion of so much liberty in the Marshalsea is that the Marshal is not chargable but by Bill which must bear Teste in Term time and so in the former Term the party is not Escaped And by the first Day of the later Term the Prisoner generally is to return to Prison and so no remedy for the party 1 Keb. 794. Of Escapes as to mean Process When a man is in Custody of the Sheriff by Where a man may be in Custody without actual Arrest an Action for the Escape shall be good Process of Law and another Writ is delivered to him to take him presently in the Judgment of Law he is in his Custody without actual Arrest quia Lex non praecipit inutilia as A. recovered in Debt Defendant was Outlawed and after the year the Plaintiff procures a Capias utlag ' and delivers it to the Sheriff of London after the Serjeant Arrests the Defendant to answer I. S. before the Sheriff the Plaintiff delivers the Sheriffs Warrant to the Serjeant who had the Defendant in his House to Arrest the Defendant the Serjeant refuseth and after the Sheriff suffers him to go at Large Plaintiff brought Action against the Sheriff supposing he had Arrested him and Defendant plead non permisit c. 5 Rep. Frost 's Case By Windham in Benskins Case by Law the Bayliffs ought not to hurry away any immediately to Prison but he may call any other persons in aid and so may commit the Prisoner to them 1 Keb. 483. Benskins Case If by assent the Sheriff suffer me to go at Large no Action lies for the Escape Of Escape out of Execution What shall be said an Escape of a Prisoner out of Execution for Debt or not If a man in Execution be suffered to go at Large for a time out of the County and to return again and this upon Bail or Mainprise yet this is an Escape for he ought to be kept in arcta custodia So if he be suffered to go at Large to any place within the County and to return again so if he be suffered to go at Large within the same Town where the Prison is it is an Escape tho he retorn within his time Plowd 36. b. Platts Case 3. Rep. 44. Boyntons Case Hob. p. 173. Earl of Essex The Case was A. recovered upon a Plaint in London against B. and had him in Execution in Ludgate A. died Intestate B. was permitted by the Keeper of Ludgate to go at large into Southwark with J. S. Servant of the Keeper and by the Command of the Keeper The Administrator of A. brought Debt against the Sheriff of London upon the Escape Per Cur. It was an Escape He that waited upon him into Surry could not be Officer to the Sheriff of London and so he had no Keeper For the Power of a Sheriff does not extend beyond his own County unless in Special Cases And the party might have Action of False Imprisonment against him tho' the Baston or Servant waited on him there being Voluntary Dyer 166. accord If the Sheriff removes his Prisoner out of the County without being commanded ' it s an Escape and if he remove Prisoners for ease and delight in the same County it is an Escape as a Prisoner went to a Bearbaiting with his Gaoler in the same County and it was adjudged an Escape so if the Sheriff permit his Prisoner to go to work ' it s an Escape Hetly p. 34. To suffer a Prisoner to walk in the Town tho with a Keeper is an Escape unless it be upon a Habeas Corpus from a Court of Justice Hob. p. 202. If the Habeas Corpus bear Teste in the end of one Term retornable in another this Writ will not warrant the Prisoner to go at Large in the Vacation Hob. ibid. Balden and Temple's Case for tho the Sheriff may remove his Gaol from one place to another within his Bayliff-wick yet he must keep it and his Prisoners within it and not suffer them to go at Large out of the Prison tho he himself be attending on them without an Habeas Corpus from some Court of Justice And let Keepers of Prisons beware when they receive an Habeas Corp. from the Chancery or any other Court bearing Teste in the end of a Term to have the Body of one in Execution in the Court the next Term that they do not by Colour of such Writs suffer the party to go at Large all the mean time as it is sometimes practised for the Writ warrants no more than that he be brought out of Prison only for that purpose and only for so much time as in Judgment of Law as shall be convenient and necessary for the Execution of the Writ and no more which in privilegiis odiosis must ever be strict By Hales in Lutterel and Mosedells Case an Habeas Corpus Hab. Corpus out of that Court to which the party is a Prisoner doth justifie the Gaoler in Assisetime but otherwise if it be
after while he was Sheriff or at any other place Per Cur. This Traverse is Traverse of the Time sufficient and the Plaintiff must reply and shew if there were any other Assault or Imprisonment Also the Traversing the Time before and after doth not lock up the Plaintiff from assigning another day and place especially the thing being Local 1 Sand. 78. 2 Keb. 237. Law and King Justification in False Imprisonment by a Writ of Supplicavit de bono gestu out of Chancery and arresting him by the Sheriffs Warrant thereupon The Justification being by an act in the same Time quae est eadem Transgress County and justifying all the Time in the Declaration tho' it do not agree with it in the Day but concludes quae est eadem Transgressio is good enough the Day not being material and the Replication is not good if it vary from the Day in the Declaration Cro. Car. 228. Tyler and Wall The Case was Trespass c. ultimo die Octob. 6 Car. and detaining him in Prison for two days Defendant justifies because 13 Aug. 6 Car. a Writ of Supplicavit issued and by Warrant from the Sheriff to the Defendant he arrested the Plaintiff 21 Sept. and detained him two days c. quae est eadem Transgressio c. In False Imprisonment in London versus W. Place quae est eadem Transgress Defendant justifies in Norfolk by force of a Warrant to the Sheriff quae est eadem Transgressio absque hoc that he is guilty in London Plaintiff demurrs generally 1. Because the Plea is double for the Justification Traverse double in Norfolk quae est eadem Transgressio had been sufficient without more and then the Traverse makes it double But per Cur. you shall not take advantage of this upon a General Demurrer General Demurrer 1 Roll. Rep. 221. Bateman and Woodcock 2. He Justifies by Warrant and saith not hic Warrant hic in Cur. prolat in Curia prolat Per Cur. They need not shew this in Court for it appears to be executed and that the Warrant is retorned to the Sheriff And so for this last Point is 1 Roll. Rep. 327. Curtiâ— and Dowty's Case In False Imprisonment the Defendant justifies Justification local as Sheriff the taking the Plaintiff by force of a Capias directed to him at D. within his County of G. where the Plaintiff declares of an Imprisonment in another County there the Traverse of the County is good For the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff and so the Justification is Local 3 Leon. 97. in Partridge and Pool's Case The Defendant justifies the Arrest quousque Justification Bond given to appear in B. R. absque hoc that at any time he did Arrest without reasonable Cause until he gave such Bond. Plaintiff demurrs generally Per Cur. The Justification is good and the Plaintiff should have Traverst absque hoc that Traverse he was arrested and detained till Obligation to appear in B. R. 3 Keb. 165. Dawson and Rawlinson False Imprisonment Defendant justifies by Arrest De injuria sua propria to a Justification by virtue of â— Latitat and Warrant by virtue of a Warrant of the Sheriff on a Latitat The Plaintiff replies De injuria sua propria absque tali causa This is naught upon Demurrer being Matter of Record but Issue being taken upon it and being in the Affirmative it s a Jeofail and good after Verdict Judgment pro Quer ' 1 Keb. 125 164. Beesly and Walker So Osborn and Brook's Case The Defendant justifies in False Imprisonment because a Writ of Vi Laica removendâ came to the Sheriff to remove the Force The Plea need not say they found him resistentem in eâ parte Vid. supra tit Vi Laica removenda President Traverse That the Defendant was in Custody by force of a Warrant made upon one Writ and not by Warrant upon another 1 Sand. 19. Pleading by the Sheriffs Baliffs Justification in Trespass Trover c. On Execution Where the Sheriff justifies by Execution he must plead That he Retorned the Writ Secus of a Bayliff 1 Leon. 134. Parkes and Mosse In Trover of 300 Sheep 1 Dec. 36 El. Defendant pleads That he was Sheriff of Com. Linc. and that J. S. recoverd against the Plaintiff 100 l. and upon that a Fieri facias which Writ was Retornable Crastin animar 35 Eliz. that this was delivered to him 1 Octob. 30 El. that he on the 20th of October took the said 300 Sheep and on 22 Oct. sold 104 Sheep for 40 l. and that the other Trover and no Conversion confest in the Plea 192 Sheep remained pro defectu emptorum and at the same Day of Crastin animar he Retorned the said Writ and all this Matter the which is the same Conversion absque hoc that he Converted them aliter vel alio modo Per Cur. The Plea is insufficient 1. Because by his Plea he doth not confess any Conversion and then the Traverse is ill He ought upon this Matter to have pleaded Not guilty and given it in Evidence 2. Because the Declaration supposeth the Trover Trâ—verse and Conversion to be the 1st of Dec. 36 El. and he justifies the Conversion in Octob. 35 El. so he meets not with the Plaintiff in time and therefore he ought to have Traversed it and the Traverse aliter vel alio modo to what it â—xtends Traverse aliter vel alio modo shall never answer to the time but to the manner of the Conversion 3. He makes not any Justification for four of the Sheep but that he seized them but he shews not what he did with them Cro. El. 433. Ascue and Sanderson Scire fac upon a Judgment in Debt Defendant That the Sheriff levied the Debt a good Plea in Scire fac pleads a Fieri fac directed to the Sheriff of L. for levying the Debt and he by force of it took divers Sheep of the Defendants for the Debt and yet detains them Per Cur. It s a good Plea altho' he do not alledge that the Writ is Retorned and altho' the Writ is Conditional Ita quod habeas denarios c. for the Plaintiff hath remedy against the Sheriff and the Execution is â—awful which the Defendant cannot resist So Rooke's Case vid. ante If in False Imprisonment the Defendant justifies Where De injuria sua propria is not a good Plea by a Capias of the Sheriff and a Warrant of â—he Sheriff to himself there De injuria sua propria generally is not a good Plea because a Matter of Record is parcel of the Cause But there he â—ught to say De injuria sua propria and traverse â—he Warrant which is Matter en fait 8 Rep. â—rogat's Case D. brought Action of Assault Battery and Execution â—mprisonment of his Wife against W. and W. in â— B.
were with Child to Certifie how long time in their Judgments quando sit paritura The Sheriff Retorned That she was Twenty weeks gone with Child and that within Twenty weeks fuit paritura Whereupon another Writ issued out of the Common-Bench commanding the Sheriff safely to keep her in such an House and that the Doors should be well guarded and that every day he would cause her to be viewed by some of the Women named in the Writ wherein they were named and that when she should be Delivered some of them should be with her to view her Birth whether it be Male or Female Upon this the Sheriff Retorned He had caused her to be kept c. and that such a day she was Delivered of a Daughter Cro. El. 566. Willoughby's Case But in Theaker's Case the Woman to be Inspected was a Feme Covert to a second Husband and she was with Child by the first they took not the same course but left her with her Husband he entring into Recognizance that she should not remove from the House wherein they inhabited and that one or two of the VVomen Retorned by the Sheriff should see her every day and that two or three of them should be present at her Travail Cro. Jac. 685 686. Theaker's Case The Sheriffs Office about Partition and how he is to demean himself therein At the time of the Partition made the High-sheriff He must be upon the Land in person must be upon the Land in person And if Exception be taken at the Bar before the Writ be retorned and filed a New Writ shall be awarded but if the Sheriff in such case Retorneth That he was there in proper person No Averment against the Retorn filâ—d and this Retorn be received and the Writ filed the party cannot Aver against the Retorn nor shall have Error Cro. El. 9. Clay 's Case In a Writ of Partition if Judgment be given quod partitio fiat and upon this a VVrit is directed to the Sheriff to make partition before that this is Executed and Retorned no VVrit of Error lies upon the first Judgment because before the last Wheâ— Writ of Error lies upon Pâ—rtition or not Judgment which ought to be Qd ' partitio praed ' foret forma stabilis in perpetuum the Plaintiff may be Nonsuited or he may upon the Sheriffs Retorn suggest to the Court That the Partition is not equal and also have a New Partition 1 Rolls Abridgm 750. The Lord Berkley and the Countess of Warwick The Form of the Retorn of a VVrit of Partition vide Dalt c. 68. Sheriffs Office about removing a Force The party grieved may have a Writ supon the Statute of Northampton 2 Ed. 3. cap. 3. directed to the Sheriff to remove the Force and upon this the Sheriff may imprison and justifie in False Imprisonment as was Levett and Farrar's Case and so may the Under-sheriff as that Case was In False Imprisonment against the Sheriff the Defendant Justifies for that a Writ upon the Statute of Northampton was awarded 30 July 32 Eliz. to the Sheriff and Justices of the Peace to remove a Force and that he being Under-sheriff by the Commandment of the Sheriff went to the place and found the Force and because he was not able to remove it he made Proclamation That every one should depart and leave their Weapons c. and afterwards he enquired of the Force and it being found that the Plaintiff was one of them he arrested him and imprisoned him Cro. Eliz. 294. Levett and Farrar Per Cur. The Plea is good And these Points Plea were Adjudged 1. When the Writ is directed to the Sheriff by the name of his Office and not by a particular Name nor doth expresly Command him to do it in person the Under-sheriff may do it Done by the Under-sheriff for its a Writ grounded on the Statute and not a Commission for then it had been otherwise 2. He may Arrest and Imprison at another time upon the Enquiry tho' the Force were removed before his coming and he may Enquire who did it 3. It shall be intended he continued Under-sheriff when in the same Plea it is alledged he was Under-sheriff and the contrary is not shewed 2 Roll. Rep. 178. If when the Sheriff comes to remove a Force if then one hide himself in the Corner of the House to the intent c. this is Force The Sheriffs Office in a Vi Laica removenda In False Imprisonment the Defendant Justifies Justifies in False Imprisonment because a Writ De vi Laica removendâ came to the Sheriff to remove the Force and that the Sheriff came to the House and the Defendant in Assistance of him c. and that there the Plaintiff in domibus praedict ' ad pacem dom ' Regis disturband ' c. eos residentes invenerit Plaintiff demurs 1. The Writ is Si aliquos in ea parte resistentes inveneâ—itis and it is not here pleaded That he found him resisting in eâ— parte i. e. to keep possession But per Cur. the words in eâ— parte ought to be necessarily intended For when he saith He came to the House to remove the Force and the Plaintiff resisted him then sequitur that he resisted him in removing the Force 2. The Writ is aliquos and the Defendant had shewed Resistance by one only But per Cur. aliquos includes aliquem 3. He doth not aver that it was vis Laica armata potestas But per Cur. it appears there was Force and the very Resistance was a Force 2 Roll. Rep. 177. Parson Clossey's Case Upon a Vi Laica removenda if the Sheriff Retorn Non inveni vim Laicam nec armatam potestatem the Lessee shall have Restitution in B. R. Restituâ—ion upon Affidavit that he was kept out with Force Upon this Writ the Sheriff ought not to remove the Incumbent who is in Possession of the Church be it by right or wrong for the Sheriff is only to remove the force and is to suffer the Incumbent to enjoy his Possession More 462. Roberts and Agmondsham How Sheriff is to Demean himself in Proclamations In real Action Vid ' Dower As to Acts of Parliament in former times Proclamations ought to be with Writ to the Sheriff to Proclaim 2 Rolls Rep. 172. Yet if a Statute be not proclaimed the Offences against it are punishable Dr. and Stud. 146. b. How the Sheriff shall Demean himself in a Writ of Inquiry of Wast And of the Sheriffs Retorn thereupon And of the Writ of Estprement In an Action of Wast upon Issue joyned a Jury is Summoned to try the Cause and in the interim to view the place wasted and the Sheriff is to retorn the view As to the President vid. 2 Sanders 254. Grene and Cole The Sheriff must go in person to the place The manner of the view wasted by Stat. W. 2. c. 14. accedat ad Locum vastatum together
Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a Vâ— Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest suâ—mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded
the Hustings of the Sheriffs Courts of the City of London the Writ of Error to Reverse this Judgment must be brought in the Court of the Hustings before the Lord Mayor for that is the Superiour Court Pract. Reg. 124. 4 Inst 247. Direction of Writs Quodlibet breve quod tangit liberum tenementum dirigitur Majori Vicecomitibus alia brevia tantum Vicecomitibus The Two Sheriffs of London do each of them Sheriffs Courts when kept keep a Court of Record where they hold Plea of all Personal Actions and the two Prisons called the Compters belong to them And they have two Court-Days in every Week apiece For the Woodstreet-Compter on Wednesdays and Fridays for the Poultry-Compter on Thursdays and Saturdays In a Plaint of Debt levied before any of the Sheriffs the Custom is That the said Sheriffs Ore tenus send to the Serjeants of the Compter either to Summon or Attach the Defendant without Warrant and upon Nihil Retorned within the City that then the Serjeants and every of them by the Commandment of the Sheriff have used to Attach and Arrest the Defendant to have his Body at the next Court before the Sheriff at the Guild-Hall c. In this manner they certifie their Records But the usual practice is to Enter an Action in the Office for that purpose at one of the Compters which Action must be Entred with Care For it is the Original in that Court by which you must Declare and from whence there must be no Variance And when an Action is Entred then any one Of Entring Actions in Crmpters of the Serjeants may Arrest the Defendant and bring him into Custody until he find Bail to Answer the Condemnation which Bail is to be Bail taken by one of the Clerk-sitters The Defendant may be Arrested by the Custom Arresting by Serjeants of London after Entry of the Plaint in the Porters-Book before the Entry of it in Court before the Sheriff And after Plaint Entred the Serjeant may Arrest without Precept The Serjeant need not shew his Mace because Serjeant shewing his Mace he is sworn and known altho' not to the party and a known Bayliff need not shew his Warrant altho' demanded But in 6 Rep. 52. Countess of Rutland's Case a General Arrest by a Serjeant by shewing the Mace and touching his Body with it and saying ☜ Sir I Arrest you is insufficient for he ought to shew at whose Suit out of what Court for what and of what Retorn c. That the party may know c. In Escape the Defendant pleads the Custom of Escape London That the Mayor and Sheriffs of London have used to enlarge Prisoners that were Arrested in coming and retorning from their Courts having Causes there depending and sets forth a Plaint in London against the Defendant and that hether the Court can discharge one arrested who is coming and teturing to the Court. he was arrested and appeared and pleaded to Issue and as he was coming to Court to defend that Action he was arrested as is supposed in the Declaration And per Cur. the Court cannot discharge one arrested except he be arrested in the Face of the Court 1 Brownl 15. Wilson and The Sheriffs ef London CHAP. XXX The Sheriffs Duty as to the Assizes And as to Sessions of the Peace The Form of the Warrant made by the Sheriff or Undersheriff for Summoning the Assizes vide Dalton 196. A Schedule may be Filed to the backside of the Warrant wherein he shall set down the names of the Grand Jury and Petty Jury of Life and Death to whom he must give warning by his Bayliff The High Sheriffs themselves are to attend the Judges at the Assizes And also Stewards Bayliffs and other Ministers of any Liberties or Franchises c. shall be attendant to the Justices of Assize and Gaol Delivery of the same Counties wherein such Liberties and Franchises shall be And shall be fined by the Judges in case of failure Every Sheriff and all other persons which have the Custody of the Gaols or Prisoners for Felony ought to certifie the names of every of their Prisoners which are in their Custody for Felony to the Justices of the next Gaol Delivery upon pain of 5 l. for every default CHAP. XXXI Of Sheriffs and Officers Fees Remedy and Security for Fees Extortion Punishable What Assumpsit good as to paying Fees or not Of Sheriffs and Officers Fee AT Common Law a Sheriff might not take any Fees but it was Extortion But now he may take the Fees allowed by the Statute Cro. El. p. 654. Stanton and Sullyard The Statute is 29 El. c. 4. No Sheriff Under-sheriff Sta. 29 El. c. 4. of 12 d. in the Pound Bayliff of a Liberty or any of their Deputies shall either directly or indirectly take more for serving an Extent or Execution than after the Rate of 12 d. in the Pound for every 10 l. and 6 d. for every Pound above 100 l. on pain to forfeit treble Damages to the party grieved and besides 40 l. between the Queen and the Prosecutor This Act not to extend to Fees of Executions within Cities or Corporations Yet the Sheriff by the Equity of Stat. 23 H. 6. c. 10. he shall take 4 d. for every Warrant Winch. 21. Upon the words of this Statute it was a Question much Argued in Latch 17. 51. Welden and Vesey Jones 307. Lister and Bromley Cro. El. 335. Gurney's Case Cro. Car. 286. Lister's Case Winch. p. 21 50. Empson's Case where the Statute gives 12 d. in the Pound for the first 100 l. and if exceeds that then but 6 d. Whether this shall be taken but only 6 d. in the Pound for all that exceeds 100 l. or whether he shall have 12 d. for the first 100 l. and Six pence for the rest And it was Adjudged that he shall have 12 d. for every Pound of the first Hundred and 6 d. for every other Pound above the Hundred And so is the constant practice Tho' Hobart in Winch. 50. Empson's Case was strong against it and that the Sheriff shall have but 6 d. in the Pound As to the Proviso That it shall not extend to Executions within Cities or Corporations it was held That it was only to be intended for the executing Judgments given in the Courts of the said Corporation and not to the Sheriffs of Cities or Corporations for executing Judgments out of Superiour Courts Jesson Sheriff of Coventry's Case cited in Lister and Bromley Cro. Car. 287. Vide Latch 17 52. Poph. 173. Welden and Vesey The Case Argued In an Action upon this Statute of 29 Eliz. against the Sheriff for excessive Fees it was moved in Arrest of Judgment because it said ad Parliament ' tent ' per prorogat ' 15 Febr. 29 El. Stat. 29 El. when began and the Rolls appeared by Copy sworn 29 Oct. 28 Eliz the Parliament began and an Adjornment to 17 Nov. 6. and
to the Party and the Justices of Peace may Assess them but they ought first to enquire of the Damages by a Jury Therefore in Bumpsteads Case Cro. Car. 488. Indictment was against the Sheriff fór Extortious Fees on two several Indictments They awarded to the one treble Damages That is where he took of one 20 l. Extorsivè they awarded to the Party 3 l. and 40 l. to the King And on the other where it was found he took 8 s. 8 d. Extorsivè they awarded he should pay to the Party 26 s. 8 d. So a quadruple value and 20 Fine to the King And it was adjudged Error causa qua supra The Indictment must be contra formam Statuti Contra formam Stat. 23 H. 6. if they will proceed upon the Statute of 23 H. 6. id ibid. The Court were doubtful if this Statute extend to Extortions unless taken upon Arrest And Judgment was reversed The Sheriffs Bayliffs were indicted at the Indictment at Quarter Sessions Information Informers have the 3 l. Quarter Sessions for Extortion Jones 379. The King against Lamfern An Informer on Conviction of a Prisoner for Extortion or other Penal Law may have the third part of the Fine according to the Kings privy Seal for that purpose And he had so of 10 l. set on a Bayliff for 3 l. taken for Execution done to his person 1 Keb. 357. and pag. 487. Information was brought against the Keeper of the Gaol or Prison of the Castle of Maidstone for Extortion on the Statute of 23 H. 8. And it was found by Special Verdict that there is not any Castle at Maidstone but a Gaol and the Defendant was Gaoler there Per Curiam Judgment pro Querente 2 Rolls Abr. 211. Goodwin and May. In 2 Brownl 283. The Sheriff was committed to the Fleet for taking Illegal Fees 2 Browl. 283. A Serjeant of London was committed in Execution Commitment for taking illegal Fees Mitigation of Fâ—â—e for a Fine in Extorting Fees on an Arrest and a third part was allotted to the Prosecutor His VVife petitioned the Court to mitigate the Fine but they could not 3 Keb. 328. the King and VVelson The Sheriff of Suffolk was imprisoned for taking a Guinea there being only 2 s. due to him and he retorned two Guineas to the Plaintiff being double of what he had taken on the 3 Ed. 1. cap. 26. and so he was discharged 3 Keb. 714. Butlers Case Assumpsit and Consideration about paying Fees what shall be good or not If a Man assume for Money given to serve certain Process this is not a good consideration as being against Law For it is Extortion in the Sheriff to take it and unlawful for the other to give it H. 10. Jac. Boothby and Alport 1 Rolls Abr. 16. Shirley and Parker Ergo Cro. El. 654. is not Law Stamp and Sullyard Executor Sues Execution by Elegit and B. an Estranger as a friend to the Executor in consideration that the Sheriff will Execute the said Elegit presently and of 6 d. paid him by the Sheriff assumes to pay 60 l. to him whereupon the Sheriff Executes the VVrit This Consideration is against Law for the Sheriff ought to do his Duty without reward and this 60 l. is not any discharge of Sheriffs Fees due by the Statute being given by a Stranger and not exprest for them 1 Roll. Ab. By a Straâ—ger 16. Bird and Cage and tho' it was alledged that this Sum promised him is no more than what the Statute of 29 Eliz. allows him to take for his Fees yet that helps not the Case for that Statute only excuseth him for his taking Fees whereas the Common Law did not permit him to take any thing for the executing VVrits And the giving of 6 d. is no sufficient Consideration being joyned with the other that is unlawful Cro. Jac. 103. Mesme Case A. is Outlaw'd at the Suit of B. for Debt and B. Assumes in Consideration that C. an Estranger In consideration that C. an Estranger will arrest a Man will Arrest A. upon a Cap. Utlag ' that he will pay him 40s This is no good Consideration altho' he shews in his Declaration that he was after made a Special Bayliff to the Sheriff to Arrest him by a VVarrant directed to him This is Extortion and the Sheriff by such means may extort great sums for doing his Office And the Bayliff is the Officer of the Sheriff and his Servant 1 Roll. Abr. ib. Faldoe and Salter Jones Promise to a Stranger to procurâ— the Sheriff to arrest J. S. is good 65. Mesme Case Latch 54. Mesme Case But if a Promise be made to a meer Stranger to go to the Sheriff and procure him to Arrest S. J. this is a good Consideration so if one pray me to go with the Sheriff to Assist him in making Execution and Promiseth me c. it s good CHAP. XXXII Bonds or Covenant between the High-sheriff and Under-sheriff or other Officers What shall be good in Law or not And when said to be forfeited or not Bonds Covenants c. IF the Under-sheriff Covenant with his High-sheriff Difference between a Coâ—enant and a Bond. to save him harmless from all Fines and Amerciaments for any Escape and Covenants also That he will not execute any Writ of Execution above the Sum of 20 l. without Warrant from the High-sheriff This last Covenant is against Law and void yet the other is good but a Bond in such case is void in all For by the Statute of 27 Eliz. c. 12. the Under-sheriff takes Oath to execute all Process Hob. 15. Norton and Sims 2 Roll. Abridgm 30. mesme Case Vide supra tit Under-sheriff The Keeper of Ludgate gives Bond to the To save Sheriff harmless from Escapes Sheriffs of London That he should safely-keep the Prisoners committed to his Charge and should save the Sheriff harmless from all Escapes The Bond is good Quaere as to the last part Cro. El. 466. Hector and Gennâ—t Escape on Cap. Utlag being void because Retorned 10 years after it was awarded But it is not forfeited by Escape of one taken by a Capias Utlagat ' in Debt because the Capias Utlagat ' was awarded the 25th of Eliz. and was Retornable the 35th of Eliz. and so meerly void For every Capias ought to be Retornable the ensuing Term because of the mischief that otherwise might befal the Prisoner to be kept always in Prison and he might well let him at Large 21. H. 7. 16. 8. Ed. 4. 4. Dyer 175. Tho' peradventure this Arrest by force of this Process is excusable in False Imprisonment by the Sheriff yet clearly it s no lawful Imprisonment and as to the prejudice or benefit of a Stranger he shall never be said to be a Prisoner 14 H. 8. 16. 11 H. 4. 36. Debt on Bond to perform Covenants which Defendant not to let at large any Prisoner arrested in Debt Need not
usum suum proprium convertit disposuit Defendant at the Retorn of the Writ comes in protestando that he had fully Administred for Plea he saith non vendidit seu elongavit c. Et hoc c. Plaintiff replies That the Defendant vendidit elongavit c. and found for the Plaintiff Per Cur ' Tho' this is no apparent Issue but whether devastavit vel non for the Defendant might pay Debts with his proper Moneys and that he might dispose of the Goods to his own use yet it s good after Verdict For the Writ of Scire fac ' suggests That the Defendant bona catalla c. disposuit ea intentione qd ' dict a executio fieret 1 Sand. 306. Merchant Driver And it is the Defendant's own fault to take such an Issue for he might have taken Issue that he had not Goods of that value or that he had paid any special Debt CHAP. XV. Of Prisons to whom they belong and the place where kept Who may be keeper of Gaols c. and how forfeitable Of the Sheriffs of Londons Prison and of the Marshalsea and the Grant thereof Of the Sheriffs detneanor towards Prisoners Of the Prisoners Misbehaviour and what payment of a Debt to a Gaoler shall be good or not And of those that break Prison Of Prisons c. ALL Prisons are the Kings but a Subject may be Keeper Co. 2 Inst 100 580. The custody of County Gaols is incident to County Gaol inseparable to the Office of Sheriff the Office of Sheriff and inseparable from the Sheriff and therefore if the King grant the Custody of such a Gaol to another its void For the Sheriff is the immediate Officer of the Kings Courts and shall be answerable for Escapes and be subject to Amerciaments and therefore he shall put in such Keepers as he shall answer for 4 Rep. 34. Mitton's Case 14 Ed. 3. c. 10. The Sheriff may remove his Gaol from one The place where to be kept place to another within his Bailywick And the Sheriff may hold the Assizes in the Castle where he held them there by Prescription altho' the King grant the Custody of the Castle to another So that tho' the Sheriff may keep the Gaol in what place he will within his Bailywick yet in a particular place not without Prescription Heb. p. 202. 1 Anders 345. Infants or Feme Coverts are keepers of Gaols to charge them in Execution for an Escape 2 Inst 382. As the King may by his Letters Patents make a County so he may in the making of it save and except to him and his Successors such part of the Jurisdiction or Priviledge which the other County from which it is exempted had in it before As in many places in the Realm the Gaol of a Town which is a County of it self or a place priviledged from the County is the Gaol of the County and the place where the Assizes or Gaol-delivery is holden is within the County of the Town and yet serves also for the County at large As in the Sessions-Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by Usage it hath been so And so the Gaol of Berry c. Poph. p. 16. The Case of the Town of Gloucester The Sheriffs of London's Court is moveable Prison of the Sheriffs of London and the Sheriff is chargable with a Prisoner while he is in Prison tho' he be Judge also For why should the City Serjeants give Security to the Sheriff unless the Sheriff be the Officer And it hath been Ruled That altho' the Sheriff be Judge yet a Precept is directed to him Therefore it s a good Plea in Debt on Escape That the Sheriff Commanded the Serjeant at Mace to deliver the Prisoner to him Siderfin p. 318. 2 Keb. 141. Husband and Cole Note The Sheriffs of London may make their Houses their Prisons as well as the Compters And the bringing the person arrested to the Sheriff albeit it be sub dio and not into any House yet it s as good as delivering into the Sheriffs Prison Vid. infra Note Upon Forfeiture the Custody of a Prison is given to another and yet till he is actually removed he shall answer for all Escapes and he that occupies the Gaol by Tort shall answer and actual Escape lies against him who had possession at Will 11 H. 7. 23. Dyer 274. But if he be not sufficient Respondeat superior 9 Rep. Reynold's Case Vide supra Grant by Patent of the Office of the Marshalsea Marshalsea of the Kings-Bench for years is not good for the Inconveniences that might ensue it may thereby become in suspence upon probat of a Will till Administration committed thereof and it might fall to persons Insufficient and in case of Fee or Tail it descends to an Infant the Court puts a fit person in for the time Cro. Car. 587. Meade versus Sir J. Lenthall Vid. more of the Marshalsea 9 Rep. Sir G. Reynold's Case 10 Rep. Case of the Marshalsea Marshal of the Kings Bench shall not be priviledged from Execution But if the Court do grant him in Execution it s an Escape as to all the Prisoners but they may make a new Marshal and then take him in Execution Siderfin p. 68. By Hyde Chief Justice of B. R. The Court Informat ' versus le Marshal cannot sequester the Marshal's Office for not paying a Debt due to any private man But by Windham an Information may be against the Officer for this ill using his Office to shift mens Debts and on that the Court may sequester So on any Contempt by him 1 Keb. 846. Roberts versus Sir J. Lenthall Attorney of B. R. brought Trespass against the Warden of the Fleet. Warden of the Fleet who advised with the Court of C. B. that he being an Officer of this Court ought not to be impleaded elsewhere Per Cur ' Its equality of Liberty and he that first begins the Suit shall have the priviledge and so he was advised to Answer 2 Leon. p. 41. Povey's Case G. brought Action of Debt against the Warden by a Bill of Priviledge but he would not appear and the Court were in doubt what remedy the Plaintiff hath to compel the Defendant to appear For he cannot be fore-judged the Court because he had Estate of Inheritance in the said Office But the Warden having made a Lease of his Office for three years he shall not have his Liberty 2 Leonard 173. Gittonson's Case As for Gaols which have been granted in Fee or Life or which have been held by Prescription may be forfeited several ways Where the Gaoler detains a Prisoner after Fees paid the King may seise the Gaol 2 Inst 43 53. Of the Sheriffs Demeanor towards Prisoners Britton c. 11. saith No Prisoner shall be put in Irons but Traytors or those taken for Felony or Trespass in parcis
of the Burgesses there have made choise and election of and of to be Burgesses of our said Borough of Warwick to attend at the Parliament according to the Tenor of the said Warrant to me directed in that behalf In Witness whereof I have to these Presents set our Common Seal of our said Borough the day and year first above written The Sheriffs Retorn of the Writ for Electing a Parliament Man Knight of the Shire VIrtute istius Brevis mihi direct Eligi feci duos milites Gladiis cinctos magis idoneos discret de Commitat meo praed videl W. F. O. S. qui quidem milites plen sufficien potestat pro se Comunitat Com. praed habeant ad faciend consentiend iis quae ad diem locum infra content de Communi Consilio Regni Regis Angliae ordinari contingerit Et praed W. F. J. S. Manucapt sunt per J. P. W. B. R. D. R. N. ad essend ad Parliamentum Domini Regis apud Westm ad diem infracontent ad faciend prout istud Breve in se exigit requirit Feci etiam praeceptum to the Mayor or Bayliff de G. qd de Burgo de G. Elegi fecerint duos Burgenses de discret magis sufficien qd sint ad Parliamentum dicti Domini Regis ad diem infra content ad faciend consentiend ut praed est qui quidem Mayor c. sic mihi respond qd Eligi fecer de praed W. Burgo de G. duos Burgenses discret ' magis sufficien ad essend ad Parliamentum praed viz. S. W. C. R. W. R. O. Armig. Vic. The Sheriffs Office about the Sessions of the Peace As to the Precept of the Sheriff for Summoning the Sessions of the Peace vid. Lamb. 367. Impress 1599. it ought to bear date under the names of two Justices of Peace at least And not of the Custos Rotulorum alone It must be to Summon 24 Jurors and to command all Constables Bayliffs or Coroners to give their attendance upon the Justices And the Form of the Retorn of the Summons vide Dalt 198. In some Cases the Sheriff is to joyn with the Justices as in Case of Riots c. 13 H. 4. c. 7. He is to attend and assist the Justices of the Peace to Arrest such as shall make any forceable Entries or Detainer 15 R. 2. c. 1. He is to Summon 24 to be of the Grand Inquest As to other sorts of Precepts which the Sheriff is to execute in respect of Commissioners of Sewers Commissioners of Bankrupts and several other Acts of Parliament vid. Dalton And the Acts themselves all the Duties of his Office being so various and especially in many late Acts its best to refer to the Acts themselves which no Gentleman ought to be without CHAP. XXIX Customs of London Of their Officer Prison Court of the Sheriffs Court How to lay the Custom of the Sheriffs Court The difference between the Mayors Court and the Sheriffs Court Sheriffs Court when kept The manner of entring Actions in the Country Customs of London as to Officers Courts Process and Prisons c. Vide 9 Rep. 62 63 67. tit Arrest vid. Calthrop BOth the Sheriffs of London are in Law but one Sheriff and the one is not of London and the other of Middlesex as is vulgarly supposed Hob. p. 70 Lamb and Wiseman And the Sheriff of London is known in Law to be two persons therefore if one Sheriff of London make his Retorn without his Fellow this cannot be holpen by Jeofail it being as no Retorn at all or a Retorn without the Sheriffs Name subscribed And London had no Sheriffs in the 13th of Ed. 1. 1 Leon. 284. In London the Mayor and Comminalty have the Office of Sheriff of London and Middlesex and Two Sheriffs are yearly chosen 3 Rep. Westby's Case Upon a Capias ad satisfaciendum to the Sheriff of Middlesex to take J. S. if the Sheriff take him and put him in Newgate which is the Common Prison for London and Middlesex and after another Writ of Execution comes to the Sheriff of London altho' the Sheriffs of London are also Sheriffs of Middlesex and Newgate where the Prison is is the Prison for both Newgate a Prison for both London and Middlesex Counties yet the Prisoner shall not be said to be in Execution upon this New Writ in London nor may the Sheriff of London serve it upon him because he is in another County For when the Cemmitment is to Newgate by Commitment by Sheriff of Middlesex is not a Commitmitment in London tho' the Sheâ—iffs of London and Middlesex are one force of a Writ to the Sheriff of Middlesex he may not be said in any respect to be in the County of London for the Counties continue several and the Prison several in respect of the several Commitments For there are two several sides and a partition between them 1 Rol. Abr. 894. Coas's Case Trin. 16 Jac. B. R. By the Custom of London the Writ of Execution is directed to the Sheriffs of London and not to the Coroner who is the Mayor 2 Rol. Abr. 806. The Retorn of the Outlawry out of London in C. B. is generally made without saying Per judicium Coronatorum Sheriffs Court The Custom is When a man is impleaded Court of Conscience before the Sheriffs the Mayor upon suggestion of the Defendant may send for the parties and for the Record and Examine the parties upon their Pleas and if it be found upon his Examination that the party Plaintiff is satisfied that he may award that the Plaintiff shall be barred And this is called The Court of Conscience 4 Inst c. 50. 8 Rep. City of London's Case The Plaintiff in Assault and Battery in his Replication saith The City of London is an Ancient City and have Pleas and that there was a Plaint in such a Court before F. M. by virtue of which Process the Plaintiff was taken He should have alledged a Custom to hold a How to Lay the Custom of the Sheriffs Court Court before the Sheriffs and that F. M. was then Sheriff It is said Coram F. M. uno Vicecom ' its well enough there being two Courts tho but one Sheriff 1 Keb. 564. Osborn and Parker As to the difference between the Sheriffs Court and Mayors Court. A Clerk of the Mayor's Court said That the Figures Difference of the Entries in the Mayors Court and the Sheriffs Court 264 in their Entries signifie the 26th day of the 4th Month 26 the Day and 4 the Month accounting November in which the Mayor is Chosen the first and so the fourth Month is February But in the Sheriff's Court they count their Months in October And accordingly it was Ordered That Ashfield the 20th day of February commenced a Plaint c. 2 Rol. Rep. 380. Ashfield's Case If an Erroneous Judgment be given in any Writ of Error to be brought in