tho' the Debt was well assigned And upon a Constat of Goods in another County he may well have a Scire fac ' into another County 2 Leon. n. 90. Bendl. 23. But if Executors plead plene administravit it was found they had Assets and a Fieri fac ' issued to the Sheriff who Retorned that they had not any thing within the County Per Cur ' Its a good Retorn because the Jury it may be found Assets in another County so the Verdict shall not bind the Sheriff 2 Brownl Rep. p. 116. Morgan and Took If it appear by the Defendants Plea that he hath When the Sheriff may retâ—rn Devastauit Assets in his hands and if the Sheriff cannot levy the debt in the Defendants hands he may upon the Defendants own shewing without any damage retorn a Devastavit and if Judgment be given against an Executor on Demurrer and Execution awarded the Sheriff cannot Retorn Nulla habet bona Testatoris But it is a Devastavit if it be found against the Executor by Verdict Cro. Eliz. 102. Stubs and Rightwise Judgment was given in Banco de bonis Testatoris Special Scire fac ' and Fieri fac ' issues out the Sheriff Retorns Nulla bona the Plaintiff may have a Special Fieri fac ' That the Sheriff shall levy the Debt of the Goods of the dead and si sibi constare poterit Fauâ— Retorn that the Executors have wasted them then de bonis propriis and if the Sheriff makes a False Retorn the party may have an Action on the Case But if upon the Retorn of Nulla bona and a Quia Testatum est that they have wasted a Writ of Enquiry is awarded what Goods were wasted and it s found that Goods ad valentiaâ— of the Debt were wasted and upon that a Scire fac ' to have Execution de bonis propriis upon two Nichils retorned This is Erroneous and if the Inquisition be false the party hath no Remedy and upon two Nichils retorned the Defendant shall be condemned yet perhaps he had not Notice 5 Rep. Pettyfer's Case To that purpose is a Case in Littleton's Reports Judgment was given against the Executor and Execution awarded and the Plaintiff informs the Sheriff that the Executors have wasted the Goods of the Testator but the Sheriff would not retorn a Devastavit Henden Serjeant moved for a Commission to enquire whether the Goods were wasted and if it be found then the Sheriff might retorn a Devastavit without peril But the Judges said they would not Advise because it was a New course Lit. Rep. 47. But in Aldworth and Peel's Case it was Resolved There Debt was brought against Peel as Executor the Plaintiff had Judgment to recover de bonis Testatoris and thereupon a Scire Scire fac ' de bonis propriis shall not be awarded upon the surmize of the party but on the Retorn of the Sheriff of a Devastavit fac ' was awarded and the Sheriff retorneth quod nulla habuit bona Testatoris and the Plaintiff surmizeth that he had wasted the Testator's Goods whereupon he prayed a Scire fac ' why he should not have Execution de bonis propriis And per Cur ' this Writ shall not be awarded upon the surmize of the party of a Devastation nor in any case where the Judgment is de bonis propriis unless it be on Retorn of the Sheriff where he retorns a Devastavit Cro. El. 530. Aldworth and Peele If A. recover against B. Debt and Damages and after B. died and Administration is granted to C. his Wife who wastes the Goods and after takes D. to Husband and a Fieri fac ' is awarded de bonis Testatoris in the hands of D. and C. and the Sheriff Retorns Nulla bona c. and upon this on surmize that they have wasted the Goods another Writ was awarded to the Sheriff Si sibi constare poterit per Inquisition ' that they have wasted the Goods then to warn them to shew cause why Execution should not be de bonis propriis and so an Inquisition is taken And the Sheriff Retorned That they had not in their hands any of the Goods of the Intestate but that the Feme being Administratrix of her first Husband had Goods of the value of 100 l. of the said Intestates and had wasted them during her Widowhood and the Husband had not wasted any of them Et si devasterunt according to the Writ the Jury pray the Discretion of the Court Per Cur ' This Special Retorn of the Sheriff is good and by this the Husband is ☜ to be charged for the Conversion of the Wife Cro. Car. 603. King and Hilton The Sheriff Retorns a Devastavit no Assets over being in Question on Non est factum against an Administrator by Fieri fac ' with a Scire fac ' Per Cur ' Tho' it be a False Retorn we cannot Faux Retorn help it but it s at the Sheriffs peril 3 Keb. 530. Brown and Collins On Fieri fac ' with a Scire fac ' and Assets the Sheriff returned Waste and the Defendant pleaded plene administravit The Plaintiff demurred because the point of the Inquisition is not traversed and Judgment pro Querente Debt against an Executor and a Recovery by Verdict and Judgment upon this and a Fieri fac ' de bonis of the Intestate upon which a Devastavit was retorned an Elegit issues de bonis propriis Mo. 299. n. 446. Mead and Cheney If A. recover against B. and Execution de bonis The party may discharge himself of a Devastavit by Plea That the Sheriff levied the Money on the first Fieri fac ' Testatoris si non de bonis propriis and the Sheriff upon a Fieri fac ' levies the Moneys and after to another Fieri fac ' to him directed Retorns a Devastavit and upon this a Scire fac ' is granted against B. to shew cause c. B. may discharge himself of this Devastavit by Plea that the Sheriff levied the Money upon the first Fieri fac 1 Roll. Abr. 903. Middleton and Powell President Retorn of a Fieri fac ' upon a Devastavit Dyer 222. But now the Practice is more nimble than by the tedious Inquisitions and that is by bringing Action in the Debet and Detinet against an Executor suggesting a Devastavit in his Declaration without any Retorn of the Sheriff Siderfin 397. Wheatby and Law On a Fieri fac ' in a Scire fac ' to have Execution de bonis propriis Sheriff Retorns upon Inquisition That the Defendant Administrator habuit bona catalla Plea to Scire fac ' de Devastavit in manibus suis quae fuerunt del intestate tempore mortis suae ad valentiam debiti damnorum recovered by the Original Judgment and that the Defendant bona catalla illa ad valenc ' debiti damnorum praedict ' vendidit elongavit ac in
this Execution vid. supra The Sheriff upon a Scire fac ' cannot deliver Cannot deliver Goods in satisfaction of the Debt the Defendants Goods to the Plaintiff in satisfaction of his Debt but must retorn the Execution in Court Cro. El. 504. Tompson and Clark Noy 56. Mesme Case Action on the Case was brought against the Sheriff for fraudulent omission of Execution of Goods that were in Conspectu suo but he saith not in his Declaration that he knew them to be the Goods of the Defendant in that Action And for this omission after Verdict Judgment was Arrested by Twisden and Windham 1 Keb. 946. The gift of the Action is the fraud which cannot be without notice which is now wrapt in the Verdict tho' it could not be pleaded the Sheriff being bound to take notice whose Goods they are Russel and Comber On Fieri fac ' against J. S. who has the Goods of Sheriff sells the Goods of J. S. a strange Security A. in his possession if the Sheriff sell these Goods Trover or Trespass will lye against him and to prevent this all the Sheriffs of England take Security Keb. 693. Sander's Case Quaere if the Seriff may take Bond for his Security But the safest course is for the Sheriff to enquire by a Jury in whom the property of the Goods is or else not to meddle with any such Goods which do not plainly appear to him to be the Defendants and it being found by the Jury that excuseth the Sheriff Pleading by the Party who has paid the Money to the Sheriff In Detinue the Plaintiff had Judgment and brought Scire fac ' to have Execution Defendant pleads that upon a Distringas to the Sheriff on that Judgment he delivered such Goods to the Sheriff and for the residue that they were appraised at so much by Inquisition taken by the Sheriff and that he delivered the Money to the Sheriff but he doth not aver this matter to be Retorned by the Sheriff it s a good Plea for otherwise the Defendant should be prejudiced for he might have twenty several Executions served against him upon one Judgment and he should be put to his remedy against the Sheriff only who may be insolvent And it is a less mischief to inforce the Plaintiff if his Plea be true to take his Action for it against the Sheriff and if it be not true to take Issue thereupon Crok El. 390. Atkinsons Case Now if the Sheriff levy Goods by force of a Where the Plaintiff shall have a new Fieri fac ' or not Defendant discharged upon seising the Goods by the Sheriff Fieri fac ' and delivers them not to the party nor retorns the overplus the Plaintiff may have a new Fieri fac ' because a Record shall not be avoided by a matter in Fact But by the taking the Goods of the Defendant to the value of the Debt by the Sheriff the Defendant is discharged altho' the Sheriff do not satisfie the Plaintiff therefore he shall not have a new Execution 2 Rolls Rep. 57. p. Jac. 1 Rolls Ab. 902. Where a Sheriff on a Fieri fac ' Retorns that New Execution he had seised Goods of lesser value which were rescued and that nulla alia bona c. the Plaintiff may not Sue a new Execution but only for the surplus beyond the value of the Goods rescued 2 Sanders 344. Mildmay and Smith If the Sheriff levy Money in Execution the Lord Keeper cannot order the Money shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it Marsh Rep. 54. If the Sheriff shall Retorn Fieri feci sed non inveni emptores then a Venditioni exponas shall go out Of the Sheriffs Selling Goods on Fieri fac ' and of the Venditioni exponas As to what Sale is good or not If the Plaintiff tenders the Debt it s a wrong for the Sheriff to sell the Goods 1 Keb. 655. Lefans Case If Goods remain in the Sheriff hands for default of buyers and there perish the Sheriff shall not be chargable But if the Sheriff refuse a buyer Action on the Case lies 2 Keb. 464. Needham's Case The Sheriff took the Defendants Goods in After seising the Goods and before sale a Supersedeas Execution by Fieri fac ' and before Sale the Record was removed by a Writ of Error into the Exchequer Chamber and a Supersedeas awarded and the Sheriff retorned upon the Fieri fac ' seisure of the Goods and that they remained in his hands pro defectu emptorum and he also retorned that a Supersedas was awarded c. and hereupon it was prayed for the Defendant that he might have restitution of his Goods Crok Eliz. 597. But per Curiam Altho this Record be removed and notwithstanding the Supersedeas awarded in regard it came not to the Sheriff till he had begun to make Execution as appears by his Retorn that a Venditioni exponas shall be awarded Venditioni exponas to perfect it And altho' the Plea Roll be removed yet it shall be awarded on the Retorn of the Fieri fac ' which remains still in the Office But as it is in 1 Keb. 324. Brownwood and Estwel if the Error were allowed before seisure then tho' the Sheriff be unpunishable in that Case yet Supersedeas notwithstanding Execution done shall go quia improvide c. And per Câ—riam if the Goods be sold the Money may be brought into Court to be restored to the Party but if not the Goods may in Goods restored in specie specie be restored But if before Sale a Supersedeas comes to him Under sale if the Sheriff after Sells the Goods without a Writ of Venditioni exponas this is void p. 8. Car. 1. Scarling and King The Sheriff sells Bricks for 7 s. per thousand on the place for which he might have 16 s. per thousand The question was Who should pay the overplus the Buyer or the Sheriffs Executors And per Curiam The Sheiffs Executors shall pay the overplus the Sale being absolute and not an Argeement to Sell 3 Keb. 285. Cutten and Hunt The Sheriff perswaded the Jury to prize the Goods at undervalue and so sold them This is an Oppression enquirable at the Assizes by Indictment Crok Jac. 426. Cayers's Case If the Sheriff upon a Fieri fac ' against J. S. Where the old Sheriff after a Writ of discharge may sell seise certain Wood whereof J. S. was possessed and the Sheriff pay parcel of the Money received and does not Retorn his Writ and after the Sheriff is removed and another Sheriff chosen and after the Writ of Discharge delivered to him he sells the Wood this is a lawful sale because by the seisure altho' the Writ is not retorned he is chargeable to the Party Tr. 3. Jac. B. R. Cro. Jac. 73. Ayer and Aderly And there a Distringas issued to the new Sheriff to distrain the
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
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.
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
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
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
with the Jurors 2 Inst. 390. Six Juors at the least ought to have the view And the Jury may view the place Wasted when the Officer is not present and the Court upon the Tryal ought to examin if the Jurors had the view or not But tho' the Jury ought to have the view yet it is not necessary for the Not necessary to retorn the view Officer to Retorn it 2 Sanders 254 255. Grene and Cole In Action of Wast assigned in a Wood the Jury viewed the Wood only without entring into it And it was held the same was sufficient It would be too tedious for a Jury to view every stub of a Tree that had been Felled Yet if Wast be in several corners of a Wood then the Jury is to have the view of every Corner aliter where Wast is assigned in the whole Wood. And if Wast be assigned in every Room of an House the view of the House generally is sufficient And by Dyer if Wast be assigned in several places and of some of them the Jury had not the view of that they may find no Wast done 1 Leon. 276. If an Issue ariseth in a Foreign County the Jury examined of the view Jury shall not be examined of the view and if the Jurors be not examined of the view when they should be examined its Error Retorn of the Writ of Enquiry in Wast VIirtute brevis Dom. Regis mihi direct ' Ego A. B. Armig ' Vic' Comitat ' praed ' tali die anno in propria persona mea accessi ad Locum vastatum in dicto brevi nominat ' Et apud S. the Vill wherein the place lies feci Inquisitionem c. prout istud breve in se exigit requirit Resid ' Executionis istius brevis patet in quadam Inquisitione huic brevi annex ' Inquisitio Indentata capt ' apud G. in Com' c. tali die anno Coram A. B. Vic' Comit ' praed ' Virtute cujusdam brevis Domini Regis ei inde direct ' huic Inquisitioni consut ' per Sacramentum A B. c. ad numerum 12 qui dicunt super Sacramentum suum qd ' J. R. in brevi praed ' nominat ' fecit vastum venditionem destructionem in omnibus in eod ' brevi specificat ' viz. permittend ' duas cameras pretis 31. unum stabulum pretii 20 s. esse discoopertum pro defectis reparationum earundem domorum per qd ' grossum marem ' eorundem Dom ' per tempest ' pluviales super illas descendentes putred ' devenit Et dicunt super Sacramentum suum qd ' praed J. R. aliud neque plus vastum venditionem seu destructionem fecit in domibus praed ' In cujus rei Testimonium c. Of the Enquiry of Wast This Enquiry of Wast differs from other How differ from other Writs of Enquiry Writs of Enquiry which are but meer Inquests of Office But here it s a Verdict and in nature of a Verdict and a Writ of Attaint lies Therefore where upon a Writ of Enquiry of Wast 13 Jurors were retorned where there ought to be but 12 its Error But in other Writs of Enquiry it is usual to have more than 12 at the Sheriffs pleasure there must not be under 12 tho' it be but an Enquest of Office for it is taken sans mise des parties id est without Issue joyned In a Writ of Enquiry of Wast upon Demurrer or nihil dicit the Sheriff may enquire of it at another place than where the Wast was done Cro. Car. 414. King and Frith 2 Inst 390. Cro. El. 290. Warriford and Haddock Now as to the Juries finding Damages the Law is That if Wast be assigned in three Houses and two Gardens c. and upon the Writ of Enquiry Wast was found in the Houses and Gardens and entire Damages given it s well for it is the usual course to find entire Damages Damages entire and not several for every of them Cro. Car. 414. King and Fitch Lib. Intr. 620. 8 Rep. 61. But where the Writ of Wast and Count is in domibus boscis Gardinis and upon the Writ of Enquiry the Wast is found in domibus Gardinis and nothing in boscis there the Plaintiff shall be in Misericordia because he counts for Wast in places where no Wast was committed in one of them But where Wast was assigned in cutting down twenty Trees and the Wast is found in cutting down two Trees aliter If the Jury find Damages only to 8 s. the Plaintiff ought to have Judgment for it ought to be above 40 s. Winch Rep. 5. Sir G. Topping and King If Wast be committed in two Villages and Where excuted the Sheriff hath executed his Office ill in one Village and well in another all shall be enquired of denovo because the whole Inquisition was but one Inquest at one time If VVast be assigned in divers Towns the Sheriff and Jury must view all the places wasted in every Town but he may enquire thereof in any one of the Towns 2 Inst 390. Note Action of VVast lies not in antient Action of Wast lies in Ancient Demsne and why Demesne because upon default at the grand Distress there cannot be a VVrit to the Sheriff to enquire of the VVast as the Statute appoints So 2 Inst 386. That the Court fails of the Incidents to an Action of VVast to award a VVrit to the Sheriff to enquire of the VVast 2 Sanders 254 Grenes's Case 4 Rep. Fulwoods's Case What Retorn shall be good or not A VVrit to the Sheriff to enquire of VVast This Writ is a non omittâ—as who Returns mandavi Ballivo meo Libertatis c. qui nullum dedit responsum it s an ill Retorn and the Sheriff was amerced and a sicut alias awarded because in the executing this VVrit he is both Officer and Judge which power cannot be committed to a Bayliff of a Liberty and this VVrit is a non omittas in it self and he hath power to retorn into the Franchise But if after Appearance the Party appears its good 2 Brownl Rep. 240. Trin. 11. H. 7. f. 42. F. H. tit retorn de Vic. 53. 11 H. 4. 21. The place wasted and treble value is to be Wasts to be recovered and how recovered now if VVast be made sparsim in a Close or VVood the treble value shall be levied by Fieri fac ' or by Elegit and not by Capias because Capias lies not upon the Original 1 Brownl 240. The Sheriff makes a Precept to a Bayliff to Summon a Jury who retorned a Pannel which was parcel of the Record and the Sheriff took the Inquest of some not retorned It was the better Opinion that the Retorn was good tho' some said the Sheriff may vary from the Retorn of the Bayliff as he is one that makes the Array and is Judg also 8 Rep. 157. Ed.
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
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
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
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
Jones Rep. p. 149. Walbury and Saltonstal Tho' it be not shewn that the Prisoner did It is not necessary to be shewed that he did not appear at the day not appear at the day for if he did not appear then the Plaintiff was at no loss yet that is not Error in the Declaration for tho' he did appear yet the Tort is not purged Cro. El. 289. Appleton and Burr A Declaration is against a Sheriff that he suffered his Prisoner to Escape and had retorned Cepi Corpus parat ' habeo whereas revera he had not the Body at the Retorn of the Writ Quaere if this Declaration was for the false Retorn or for the Escape or for both To this Declaration the Defendant might have pleaded the Stat. of 23 H. 6. but he demurred generally and so has lost the advantage of the Statute which is a private Statute and the Defendant has confessed the Escape by the Demurrer vide supra Sanders 154 155. Benson and Welby So that if the Escape be well alledged the Court will not countenance Error in other Non Formalities The Declaration was whereas he had brought a Writ of Debt against M. W. and recovered and shews all the matter of the Escape c. and then it is as usually in the Common Bench unde queritur qd ' cum he brought a Writ of Debt against M. W. c. and saith not the aforesaid M. VV. and so it may be a Stranger and therefore not good Cro. Jac. 188. Burton and Eyre But upon Conference with the Prothonotaries Course of Declaration C. B. it is the common course in Actions on the Case after recital of the Writ in the unde queritur to begin de novo and not to say praedict ' c. And Per Curiam both courses are well enough And so it is tho' there be an Error in Fact Error in Fact not to be assigned on the Escape As in the Case of Jaques Car. 2. which was On Non Omitt as Capias and Escape The Capias was of 50 l. and to answer 5 l. Alano Lockart Prothonotary And the Judgment in Debt on the Escape by default is 50 l. and this was assigned for Error for the Judgment and Capias was but of 50 l. as to the Party But Non allocatur for upon the whole the Judgment is right and but an Error in Fact which cannot be assigned on the Escape 2 Keb. 646. 2 Sanders 98. Jaques and Keble In Escape against the Marshal the Plaintiff Declared That whereas J. S. was indebted to him by Bond and thereupon arrested by Latitat and put in Bail and the Plaintiff obtained a Judgment who thereupon in Discharge of his Bail did render himself to Sir John Lenthall in Execution and afterward Sir John Lenthall the Marshal suffered him to Escape To this it was excepted that he rendered himself to the Marshal whereas he ought to say he rendered himself to the Court for it is the act of the Court that turns him over to the Marshalsea and a Judge can only take and discharge the Bail But it s here that he rendered himself to Sir John Lenthall in Court Which is well enough Stiles Rep. 330. Child and Sir John Lenthall As to Declarations upon Escape after delivery from the old Sheriff to the new Sheriff and the manner of declaring I shall cite two Cases Declaration as the old and new Sheriff which will much inform us in that point The Declaration was That he was in Execution of the old Sheriff and delivered to the new Sheriff and then committed to the Marshal by Habeas Corpus and then suffered to Escape Cro. Jac. 587. Dowdswell and Sir G. Reynel This exception was taken to the Declaration It must be shewed that the old Sheriff delivered him cum caus to the new Sheriff because it was not shewed that the ancient Sheriffs delivered him in Execution with the Causes of Imprisonment to the new Sheriffs for otherwise it is an Escape in them and not in the Marshal as in VVestbies Case For it may be he was delivered per Indenturam debito modo confectam for other Causes and this Cause was not mentioned And a Declaration ought to be certain to every intent and tho' it be said virtute cujus he was in Execution under the new Sheriffs yet that does not help it for it is but the conclusion of the Premisses and if the matter before does not shew he was in Execution that pretextu cujus will not serve In Debt on Escape The Original and Capias which was retornable Cras Martin in Michael ' 78. was set forth And that Sydly in exit ' ab Officio in December after the Retorn delivered him over to C. and it appears not that the Prisoner was ever in the Custody of Sydley But by VVindham he could not else be turned over and it is expresly said he was in Custody and it may be no Writ was retorned by the Sheriff and tho' in Law he cannot be in Custody till the Retorn yet that shall be now intended neither need it be said that the Sheriff was continued in his Office above a year 1 Keb. 632. Hargol and Creamer Of Declaring in Escape upon Outlawry there Declaring in Escape on Outlawry are also two Cases which will greatly direct us One was Outlawed by the Plaintiff and by Habeas corpus he was delivered to the Marshalsea and escaped Now the Declaration may be for the party only and it need not be an Action on the Case tam quam tho' here is a Contempt to the King Brigdman's Rep. 8. Moor and Sir George Reynell The Plaintiff in Debt on Escape declares of a Recovery of 13 Utlawed 15. and that he was taken by Cap. Utlegat 18 Car. 2. after the year and doth not Declare that he was in Custody nor that he was ever charged in Execution at the Suit of the party by Prayer on the first Judgment in which Case tho' an Action on the Case will lye yet not Action of Debt And after Verdict pro Quer ' Maynard moved in Arrest of Judgment That this taking after the Year after the Recovery and Judgment on the Outlawry does not make the Prisoner in Execution at the Suit of the party without Prayer because it may be Intended that the party intended to have other Execution than the Body And relied on Frost 's Case 5 Rep. 89. That until election made he is not in at the Suit of the party Siderfin 380. Buckland and Kelland 2 Keb. 408. mesme Case But upon Cro. El. 850. Shaw and Cutter's Case Tho' the Capias Utlegat ' be after the year yet Debt â—ies upon Escape without any Prayer of the party entred on Record Declaration on Escapes in Inferiour Courts and 706. Leighton and Garnon's Case The Court inclined that tho' the Capias be after the year yet Debt lies against the Sheriff for the escape without any Prayer of the party
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