Lately Printed for J. Walthoe THe Pleadings and Arguments of Mr. Finch and Sir Robert Sawyer the Kings Solicitor and Attorney General and Sir George Treby the Recorder of London and now Lord Chief Justice of the Common Pleas and the late Chief Justice Pollexfen for the City of London with the Judgment Entred thereupon The whole Proceedings faithfully taken from the Records Wherein is comprized all the Learning of Corporations whether Forfeitable how and for what and whether a Corporation can be surrendred Which Points do not only concern the City of London but all other Corporations in England In Folio price 6 s. Lex Custumaria Or A Treatise of Copy-hold Estates in respect of the Lord and Copyholder Wherein the Nature of Customs in general and of particular Customs Grants and Surrenders and their Constructions and Expositions in reference to the thing granted or surrendred and the Uses of Limitations of Estates are clearly Illustrated Admittances Presentments Fines and Forfeitures are fully handled and many Quaeries and Difficulties by late Resolutions setled Leases Licenses Extinguishments of Copy-hold Estates and what Statutes extend to Copy-hold Estates are explain'd And also of Actions by Lord or Tenant and the manner of declaring and pleading either generally or as to particular Customs with Trials and Evidence of Custom and of Special Verdict Together with a Collection of many Cases wherein a Copy-holder may receive relief in the Court of Chancery To which are annexed Presidents of Conveyances c. In Octavo price 5 s. THE Compleat Sheriff Wherein is set forth His OFFICE and AUTHORITY With Directions how and in what manner to Execute the same according to the Common and Statute Laws of this Kingdom which are now in force and use And the Judgments and Resolutions of the Judges in divers late Cases in the several Courts of Westminster relating thereunto Likewise of Vnder-Sheriffs and Their Deputies and where the High-Sheriff shall be Answerable for their Defaults and where not c. Together with the Learning of Bail Bonds with an Explication of Stat. 23 H. 6. cap. 10. and Pleadings thereon Retorns of Writs Remedies against Non Retorn and Faux Retorn Habeas corpus Venires Challenges and Enquiry of Damages Prisoners and Prisons Execution by Fieri fac ' Elegit c. Escapes Actions and Pleadings therein Fresh Pursuit and other Pleas. Attachment Amerciament Actions Declarations and Pleadings on the Sheriffs Nonfesance or Male-fesance Customs of London as to Prisons Courts Process Sheriffs Fees Extortion Sheriffs Accompts c. To which is added The Office and Duty of Coroners Deus nobis haec otia fecit London Printed by the Assigns of R. and E Atkyns Esquires for Iohn Walthoe and are to be sold at his Shop in Vine-Court Middle-Temple MDCXCVI The PREFACE WHEN Sir Edward Coke in his first Institutes fo 168. tells us That the Sheriff hath Triplicem Custodiam 1 Vitae Justitiae 2 Vitae Legis 3 Vitae Reipublicae he thereby gives us a short but pithy Description of this Important Office And if Execution be the Life of the Law as without doubt it is it seems to be seated in the Sheriff as in the Heart which is primum vivens and ultimum moriens Original Process moves and is directed to him Subsequent Proceedings are Circulated in him and at last are Finished and compleated by him This gives us to Understand not only the Importance but the Extensiveness of the Sheriffs Office Especially when we Consider how many Thousands of Families have Suffered irreparable Ruin by the Ignorance or Carelessness not to say worse of Sheriffs and their Officers Nay they themselves failing in the due discharg of their Duty have oftentimes rendred themselves Obnoxious to chargable Payments and difficult Defences Certainly then to understand well the Law about Sheriffs and their fit Management and Demeanor in all the Branches and Circumstances relating to their Office is a thing of as great Consideration as any that can be propounded to us as Members of a Body Politick We have indeed many that have Treated of some Parts thereof inter alia as Crompton Kitchin Greenwood c. But I know but two that have designedly Undertaken this Title Mr. Dalton a Person of Great Learning and Industry has discovered much Reading in our Old Books and is also of very great use to direct us in CASES that may seldom and rarely happen and yet there is much of him now Antiquated and diverted into other Channels The Receiving Fee-farm Rents Waifs Estrays Deodands Wards bona Felonum c. seldom or never troubling the Sheriff having been Extinct or Aliened by Act of Parliament or granted to Lords of Mannors or other Persons Besides some things are there delivered for Law and so might pass in his time which have received quite contrary Resolutions and Thousands of Cases have hapned since which are not to be found in him nor in the least mentioned by him Neither has he been so happy as we could wish to Treat Methodically of Rescousers Escapes c. which make a great Figure in our Books and he has totally omitted unless it be sparsim the proper Remedies against the Nonseasance or Male-feasance of the Sheriffs and their Officers I have in many Titles directed you to refer almost wholly to him as not being willing to Transcribe them but they are such as are Common and known of course or else seldom or never practicable Mr. Wilkinson is for so much as he hath Undertaken Neatly and Judiciously done But as to the Office of SHERIFFS tho' the Book bears that Title yet it is the least part thereof not exceeding above Four printed Sheets so that we cannot think that sufficient Direction to us Nor have either of them given any Directions as to the Laying of Actions Declarations Pleadings and Trials or Evidence and therefore I have been the more careful to place them under their proper Titles Upon these Reflections it seems not Unreasonable to imagine That a Treatise of this Nature may find some Acceptance and meet with a favourable Reception as well from Gentlemen who are or may be capable for this weighty Office and thereby be better enabled to Serve their King and Country and also Themselves as from the Students and Practisers of our Common Law THE CONTENTS CHAP. I. OF Counties When the Realm was divided into Counties Vicecomit notatio nominis Sheriffs how made in former times how at this day the Sheriffs â—onour Power and Priviledge His Office not apportionable What he may do as Conservator pacis How favoured in the Execution of his Office Of his Assistance In what Things and Cases he is restrained Not to Let County or Hundred to Farm c. CHAP. II. What the Sheriff must do at the entrance into his Office The Form of the Writ of Discharge of the Old Sheriff The Form of bis Oath How and before whom he is to be Sworn and the Retorn The Cities and Towns in England which have Sheriffs and
be Sheriff in or other Justice having Power or Authority to make any Writs unto you by the Law of the Land or any Justice of Newgate Ye shall make your Bayliffs of the true and sufficient Men in the County Ye shall be dwelling in your proper person within your Baliffwick for the time ye shall be in the same Office except ye be otherwise Licensed of the King Ye shall not Let your Sheriffwick nor any Bayliffwick thereof to Farm to any Man Ye shall truly set and return reasonable and due Issues of them that be within your Bayliffwick after their Estate and their Honour and make your Pannells your self of such persons as be most next most sufficient and not suspected or procured as it is ordained by the Statutes and over this in eschewing and restrainder of the Mans-slaughters Roberies and other manifold grievous Offences that have been done dayly namely of such as name themselves Souldiers and by other Vagrants the which continually increase in number and multiply so that the Kings true Subjects may not be safe yea Ride nor go to do such things as they have to do to their intolerable hurt and hindrance Ye shall truly and effectually with all diligence possible to your Power execute the Statutes as the Statutes of Winchester and of Vagabonds These things all ye shall truly keep as God ye help Note That there was an Addition in this Crok Car. p. 25 26. Sir Ed. Coke's Case Oath by the Statute of 5 R. 2. and 2 H. 4. c. 15. viz. That he should seek to repress all Errors and Heresies commonly called Lollards and should be assistant to the Commissaries and Ordinaries in Church matters And this was objected by Sir Ed. Coke after he had been Lord Chief Justice of both Benches and made Sheriff of the County of Buckingham when he had a dedimus potestatem annexed to a Schedule in the first year of Charles the first And ever since they have been left out because Lollardism then was the true Antipapal Religion as is now professed And he made other Objections one whereof was that some parts of the Oath are not by any Statute and its a Maxim That none but the Parliament can appoint None but the Parliament can appoint an Oath an Oath But it was resolved by the Judges that this Oath being appointed and continued divers years by direction of the Statute altho' without the express Authority of any Statute Law yet may well be continued for the publick benefit Note As to the Statute of Winchester the Justices of Peace have eased the Sheriff of much trouble And by the Statute of 39 Eliz. cap. 4. all former Statues for the punishment of Vagabonds are Repealed The Oath of the Sheriff of Oxford and Berks and also of Cambridge and Huntington YOV shall Swear That well and truly ye shall Serve the King in the Office of Sheriff of Oxford and Berks. And the Kings Profit c. ut supra usque So help ye God And also ye shall Swear That the Masters and Scholars of the Vniversity of Oxford and their Servants from injuries and violences Ye shall keep and defend by all your Strength and Power and the Peace in the said Vniversity as much as in you is ye shall keep And that you shall give your Councel and Help to the Chancellor and Scholars of the same Vniversity for to punish the disturbers and breakers of the Peace there after the Priviledges and Statutes of the said Vniversity at all times when it shall be needful And also ye shall put your help withal your Strength to defend the Priviledges Liberties and Customs of the said Vniversity And that ye shall receive all such Oaths of your Vnder-Sheriffs and other your said Ministers of your said County of Oxford as soon and anon as ye shall be at the the Castle or at the Town of Oxford in presence of any that shall be thereto deputed by the said Vniversity to the which things the King will that your said Ministers be by you acted and compelled As God you help The like Addition to the Oath of the Sheriff of Cambridge and Huntington mutatis mutandis If the New Sheriff be not in London he may take his Oath by dedimus potestatem directed to any two Justices of Peace of the same County one to be of the Quorum or to any other Commissioners The Cities and Towns in England which have Sheriffs are as follow The City of Bristol 2 Coventry 2 Canterbury 1 York 2 Exon 2 Glocester 2 Leichfeild 1 Lincoln 2 London 2 Norwich 2 Worcester 1 The Town of Kingston upon Hull 1 Southampton 1 Nottingham 2 Poole 1 Newcasle on Tine 1 The Return of the Dedimus by the Commissioners is thus VIrtute istius Brevis nobis direct ' tali die Anno recepimus Sacrament ' infranominat ' A. B. Vicecom ' Warr ' tam de offic ' Vicecom ' in dict' Com' Warr ' bene fidelit ' faciend ' juxt ' formam cujusdam Schedulae praesentibus ann ' quam Sacramentum specificat ' in Actu Parliament ' Anno Regni Dominae Elizabethae nuper Reginae Angliae c. primo fact ' secundum tenorem Brevis Schedulae Brevis proed ' similit ' annex ' prout Breve istud in se exigit requirit The Sheriff must take the Oath and Sacrament as is now usual for all Officers and Ministers of Justice Stat. Car. 2. and the Oaths appointed by the Statute of William and Mary In the general Case of the Sheriffs of England when the King makes a new Patent tho' the Ancient Sheriff had his Office but durante â—eneplacito presently a Writ of de Comitatu Commisso Writ of Discharge which is commonly called a Writ of Discharge or a Writ de exoneratione officij shall issue the form Vide supra And then another Writ is directed to the Ancient Sheriff for the delivery of his County and Rolls Writs c. to the New Sheriff These were two Writs formerly but now they are included in one Vide supra The next thing is the New Sheriff at or before his first County Court must take over from his Predecessor all his Prisoners and Writs precisely by view and by Indenture to be made between them wherein all the Causes which he has against every Prisoner must be set forth and delivered or else the New Sheriff is not charged with them as in Westbies Case Now before I say more as to the Delivery I I shall shew you what Actions of the Old Sheriff or his Officers shall be good and to what time Now the Old Sheriff of a County is Sheriff until the New be Sworn altho' he be Chosen for it is the taking of his Oath that doth compleat Till what time the old Sheriff or the new Sheriff may Act. Crok El. 12 Fitz Case More 186. More 364. St. John's Case Cro. El. 440. Boucher and Wiseman him in his Office And
out of any other Court but out of which soever if the Authority of the Writ be-Executed either in Time or Place at the pleasure of the Gaoler or Prisoner ' its an Escape as being carried a month before the time and staying a month after also the Habeas Corpus being at a place and day certain ' it s no pretence of stay at any other places or ultra to search Writings or to speak with Witnesses and immediate is a convenient time without wilful delay so is Mod. Rep. 116 tho the Sheriff be not bound to bring the Prisoner the direct way yet he ought not to carry him round about a great way for the accomodation of the party if he do it is an Escape 3 Keb. 305. Lutterell and Mosedell's Case and Mod. Rep. 116. Mosedell's Case But upon this Point of the Prisoners being suffered Diversity to go at Large there is a diversity to be well heeded And that is Between one in Execution within the Franchise or County where the common Gaol is where the Office of Sheriff or Bayliff extends for there if the Sheriff c. assent that one in Execution shall go out for a time altho he retorn by the time or if he suffer him to go at Large by Bayl or Baston it is an Escape But when the Sheriff c. is commanded by Writ to have the Body at Westminster he may be a Keeper of him in another County as in the Case of Bennet and Halsey Mo. 3. Rep. 44. Boyston's Case The Plaintiff was taken in Execution by the Sheriff of B. and by an Hab. Corp he was brought to Smithfield by the Gaoler of B. and there at eight a Clock at night the Prisoner went into Southwark and none with him and there continued all night and the next morning he Habeas Corpus ad Recipiend ' retorned to Smithfield to his Keeper and there continued with him till the retorn of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants Inn and he retorned his Writ and the Chief Justice committed him to the Marshalsea and it was adjudged to be no Escape in the Sheriff so in Burton and Andrews Case Mo. Rep. Bennet and Halsey For the effect of the Writ is performed to have him there at the day and the Writ does not command him to bring him the usual way but to have his Body at the day and so if one be Sheriff of two Counties and had Arrested two by two several Capias in two Counties he may bring one into the other County to have them both at Westminster and may bring them the surest way If a Gaoler on an Hab. Corp ad Testificandum Habeas Corpus ad Testificand bring one whom he had in Execution to be a VVitness by Twisden it is an Escape and so has been adjudged In Rolls his time the Court was moved for an Hab. Corp. for a Prisoner in the Kings-bench that he might be a Witness in a Cause in Darby Shire at the Assises but it was denied but he said he knew it granted for one to be a Witness at a Tryal at Guild Hall but at the Charges and Peril of the party for whom he was to be a Witness if he Escape 14 Car. 1. B. R. And in 24 Car. 2. B. R. Adam's Case the Court granted an Habeas corpus for a Prisoner in the Marshalsea to Testifie in a Cause in Middlesex But Hale Chief Justice said He would never grant it in his Chamber being but a private Person and the party may escape which would be remediless Siderfin p. 13. Fitz-Jeffreys If one be in Execution in the Fleet or other The King cannot License one to go at Large place at the Suit of the King or of a Common person and the Warden or Gaoler by the Command of the Lord Chancellor or Treasurer suffer him to go into the Country with a Keeper to gather Money the sooner to pay the King and he goes accordingly and returns to Prison again yet this is an Escape as to the Common person for the King himself cannot License a man to go so at Large Dyer 12 13 Eliz. 297. If one be in Execution at the Suit of the King in the Fleet the Warden may suffer him to go to his Counsel with his Keeper But not so in the Case of a Common person Savill's Rep. p. 29. A man is in Execution for Debt and a Woman being Warden of the Fleet marries the Prisoner This is an Escape for that he cannot be his own Prisoner nor a Prisoner to his Wife So if the Sheriff or Gaoler marry a Woman that is in Execution for Debt Sir Gervas Clifton's Case cited 1 Leon. 237. in Offley and Saltington's Case was He being Sheriff suffered one in Execution and in his Custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again This Case was referred by the King to the Habeas Corpus in regard of the Plague Judges Trin. 12 Car. 1. Whether in regard of the Plague Habeas corpora may be granted for the Prisoners in Execution in the Prisons of the Kings-Bench and Fleet upon Judgment in the Common-Bench and Exchequer and it was Certified by them to the Lord Keeper that if upon Habeas corpus granted the Gaoler suffers the Prisoners to go at Large with a Keeper or Baston that this is an Escape and that no Habeas corpus ought to be by the Law for this purpose which the King well approved of And in primo Caroli the Prisoners in the Fleet petitioned the Parliament that they may have Habeas corpora in the Vacation in respect of the great Plague in London but the Parliament would not assent to it because against the Law A Capias ad satisfaciend ' is served upon one who Execution served upon one who is Prisoner for Felony and then an Escape is a Prisoner for Felony and Indicted and Arraigned and found Guilty and afterwards Escapes Debt lies against the Sheriff for the Execution was well served upon him and altho' his Body was at the Queens pleasure yet he shall not take advantage of his own Tort but he shall answer the Suit or Execution of a Common person Cro. El. 165 517. 1 Leon. 87 236. Ognel and Paston The Sheriff delivers the Prisoner upon a void Delivery upon a void Audita Querela is no Escape Audita querela This is no Escape and there the Prisoner may be taken again in Execution Mo. 344. n. 479. Collins's Case But if a Scire facias had in it the words of Audita querela it s against Law and its an Escape if the Sheriff deliver the Prisoner upon it 1 Roll. Rep. 383. A forged Warrant of Attorney for Satisfaction One delivered upon a forg'd Warrant of Attorney for satisfaction is delivered into the Office where one is in Execution and the Marshal lets
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
shew the time and place of the Arrest was That the Defendant should not let at Large any Prisoner arrested without the Sheriffs Warrant The Plaintiff shews the Defendant had let such a Prisoner at Large at Westminster c. it is good without shewing the time and place of the Arrest For the Escape is the Material part of the Covenant and the manner of the Arrest is not in Question and whether he were legally taken or imprisoned was not material when he was suffered to go at Large Siderfin p. 30. Jenkin's Case The Condition of the Bond was Whereas For a Bayliff of an Hundred to make true Retorn of all his Writs Pleading S. was Sheriff of Surrey and made T. Bayliff of the Hundred of B. Now if he should execute his Office c. and make true Retorn of all Writs directed to him then c. Defendant pleads on Oyer particularly performance to all Plaintiff Replies Process was directed to him to levy Issues on J. S. and that he made his Warrant to T. to Execute the same which Warrant he did not Retorn On Demurrer Judgment was against the Plaintiff because he did not shew that the Issues were to be Levied in the Hundred of B. For tho' the words are general to make Retorn of all Warrants directed to him yet it was to be understood of such only as were to be Executed in his own Hundred of which he was Bayliff Allen p. 10. Slaughter and Day 2 Sand. 414 415. mesme Case cited there Debt on Bond by Under-sheriff to defray the Expence of the High-sheriff and Performance To pay the Expence of the High-sheriff pleaded Plaintiff Replies J. S. recovered in Charges in carrying the Prisoner from Chelmsford to London not shewing it was done by virtue of Habeas corpus Defendant Rejoyns This was by private Agreement Plaintiff Demurs because it was not Concluded to the Country Per Cur ' There must be a Compulsion shewed by Habeas corpus to the Sheriff of Essex without which he cannot deliver him over to another Sheriff and then there is an Allowance upon the Account in the Exchequer in case of Transporting being Signed by the Judges And the Court gave leave to Discontinue 3 Keb. 448 Lewen and Allcock As to the Form of the Indentures and Covenants between the High-sheriff and Under-sheriff vide Dalton Greenwood of Courts and several other President Books CHAP. XXXIII Of Sheriffs Accompts AS for the Periods of Time wherein the manner of the Sheriffs Accompting to the King have been altered by Acts of Parliament and Practice you may peruse a Learned Treatise of the late Lord Chief Justice Hales touching Sheriffs Accompts You find there how the King's Farms were anciently Answered by the Sheriffs and the manner of the Collecting of the Kings Revenues of the County Now that which was Firmi Comitatus were the Vicountiel Rents and they came under various denominations viz. Blanch-Rents Albo firmae Praestatio pro pulchrè placitando Visus Frankpledg ' Redditus ad Turnum Certum Letae and these were in time contracted to a sort of Annual Revenues And the uncertain Annual Revenue was called Proficuum Comitatus which in ancient Times was considerable when most Law-Suits were Transacted in Counties and in Hundred Courts Fines Issues and Amerciaments in those Courts and in those elder Times they were considerable The Farm of the Bailywick of one County was let at 100 l. per Annum temp H. 3. but by Stat. 27. H. 6. c. 10. the Sheriff is restrained from Letting his Bailywick to Farm But these were formerly and now are answered at two Terms in the year Michaelmass and Easter and are called proferae Vicecomitis or Sheriffs proffers But it is as it were a Mock-payment now being so inconsiderable most Causes being tryed in Superiour Courts for upon Account he generally has all his Proffers paid and allowed to him again Vide â—he Statute of 4 H. 5. 2. 34 H. 8. c. 16. Since the Statute of 34 H. 8. c. 16. the Sheriffs might discharge themselves of the Casual Charges or Annual uncertain Charges and most ordinarily after this Statute did discharge themselves of the entire Firmae de proficuis Comitatus and they ascertained to the Court that there were no such profits beyond the charge in collecting them or that the charge of keeping the County Court the Tourn and Hundred Courts which were the things that made up the Firma de proficuis surmounted the benefit And this Making appear was no other than the Oath of the Sheriff and the Statute gives him that benefit Yet tho' the Sheriffs did use to discharge themselves by their Oaths of the entire Fermae de proficuis Comitatus and of a great part of the Vicountiels yet till Anno Dom. 1650. these entire Farms were constantly written out in Charge to the Sheriff upon the Summons of the Pipe tho' it was but a piece of Formality But now the Firmae de proficuo Comisat ' is wholly put out of the Charge of the summons of the Pipe by an Order made in the Exchequer 1650 which is followed to this day By the Act in Car. 2. Entituled An Act for the preventing the unnecessary delays of Sheriffs in passing their Accounts No Sheriff shall be charged in Account to answer any illeviable Seisure Farm Rent or Debt or other thing which was not writ in Process to him or them to be levied wherein the persons of whom or the Lands or Tenements out of which together with the Cause for which the same shall be so levied shall be plainly and particularly expressed but shall be thereof wholly discharged without Petition Plea or other trouble or charge whatsoever If the Sheriff shall seise the Goods of one that is Outlawed c. and does not accompt for the same the Owner of the Goods may have Action of Trespass upon such Seisure and shall recover the Goods or the value thereof in Damages For the Sheriff must plead that he has accounted for them otherwise he shall be a Trespassor ab initio Note The Sheriff is Accountable in respect of his Office but if he be made sine Computo he has by this the Profits to his own use 1 Roll. Rep. 183. O. N. in the Exchequer makes the Sheriff Debtor to the King and the Debtor himself Debtor to the Sheriff Hob. 206. Speake and Richard's Case CHAP. XXXIV Of Coroners How the Coroners must be chosen and the Credit the Law gives to them and how when they shall be discharged The Demeanours as to Outlawries Coroners Inquest Of Coroners c. THe Office of Coroner ever was and yet is 4 Rep. 41. Heydon 8 Rep. 41. Grâ—nly's Case 5 Rep. Specot's Case 4 Rep. 45. Wrote's Case 9 Rep. 31. Strat. Mar. 5 Rep. 108. de Wreck 10 Rep. Denband St. 28 Ed. 3. c. 6. Elect. of â—oroners Vid. 4 Inst 271. Mag. Ch. 17. cap. W. 1. c. â—0 Artic. super Chart. c. 3. Eligible in full County by
the Liberty shall have an Action against him and the Party Arrested shall have no remedy If Goods are Distrained and Impounded in a Liberty the Bayliff is to make Replevin and Deliver them but if the Bayliff will not or did not Deliver them after the Sheriff hath made Retorn of the Kings Writ to him then the Sheriff shall enter and Deliver them per Stat. 52 H. 3. 21 Ed. 1. 17. and in such cases the Sheriffs Retorn will not serve A Writ of Enquiry of Damages directed to the Sheriff cannot be executed by a Bayliff of He cannot execute a Writ of Enquiry of Damagâ—s directed to the Sheriff a Liberty but by the Sheriff himself so in Redisseisin for he is both Judge and Officer there Hob. p. 83. Vizey and Gunstone * Bayliff of Westminster fined because the Gaoler of the Gatehouse refused to charge a Prisoner with the Sheriff of Middlesex his Warrant 3 Keb. 479. Briton and Griffith One was in Prison in the Gatehouse by a Warrant from Secretary Coventry for Miâ—demeanors and the Gaoler refused to charge him with a Warrant of the Sheriff of Middlesex at the Plaintiff Suit Per Cur ' the Gaoler cannot dispute it tho' the Court may give leave or refuse it and the Bayliff of Westminster on pain of 20 l. was ordered to Return the Writ Of Retorns by them A Bayliff who Executes a Writ and is removed Of their Retorn of Writs to the Sheriff More 431. Palmer and Porter More 402. Atkinson before the Retorn may make the Retorn to the Sheriff and he over to the Court but if he Executes it not he shall not make the Retorn but the Retorn of Nihil or non est inventus t is to be made by the New Bayliffs The Sheriff Retorns Mandavi Ballivo qui mihi dedit responsum qd ' cepit corpus A. fecit Rescous It s a good Retorn But Mandavi Ballivo qui cepit carpus A. fecit Rescous is not good in Redisseisin and that he cannot Retorn Mandavi Ballivo c. Vide pluis tit Retorn A Man may aver against the false Retorns Averment against the Retorn Dalt 545. of Bayliffs of Liberties and shall recover as well against them as against the Sheriff too of several Issues retorned Dalt 545. Where the Precept is made to the Sheriff by Force within a Liberty Dalt 545. the Justices of Peace to retorn a Jury to enquire of a Forceable Entry and the Force is within a Liberty the Sheriff shall direct his Precept to the Bayliff of the Liberty to Retorn the Jury the Bayliff must make a due Retorn as to Issues on Jurors c. Note The Bayliff shall never take benefit of 5 Rep. 92. his Liberty If Capias or fieri fac ' comes against the Bayliff the Sheriff shall execute the Process on him or his Goods within the Liberty and where the Bayliff of the Liberty is party to the Suit he shall not Retorn the Jury but the Sheriff Where and in what Cases the Sheriff may Enter into a Franchise Wheresoever the King is a Party as in every Felony or suspicion of Felony or otherwise in 5 Rep. 92. any Action the Sheriff ex officio is to enter the Franchise and to execute the Process himself In a Writ of Wast and Redisseisin the Sheriff must enter the Franchise to make enquiry c. So where the Bayliff nullum dedit responsum So to Deliver a Distress But 't is safest for the Sheriff in default of the Bayliff to have a Writ of non omittas propter Libertatem On extent upon Stat. Merchant the Sheriff is to enter the Franchise If the Sheriff enter on non emittas by reason Terms Ley. of the Bayliffs default and Execute the Writ the Sheriff shall warn the Bayliff of the Franchise that he be before the Justices at the day contained in the Writ and if he come not and excuse himself then all Writs judicial in the same Plea shall be Writs de non omittas The Sheriff in his Retorn is to set down the name of Baliff of the Liberty Pleadings by Bayliffs of Franchises Trespass for taking away a Mare the Defendant He must shew the Jurisdiction of the Court. saith That before the Taking the Defendant being the King's Bayliff by Precept out of the Court of Pomfret to make Execution c. on Levari c. Per Cur ' Its ill because he doth not shew the Jurisdiction of the Court and that is necessary by the Bayliff of an Inferiour Court especially because he Justifies by 1 Keb. 53. Crofts and Wilkinson reason thereof as in the Countess of Rutlands Case and it must appear that the Court hath Cognizance of the Cause aliter he cannot execute there Precept Action on Escape and declares he delivered a Writ to the Sheriff of Nottingham who made a Warrant to the Bayliff of the King's Liberty Plead Rescue from the Deputy of the Bayliff of a Liberty of Newark to execute it which Warrant was delivered to one L. Deputy of the Lord Burleigh Ballivo Libertatis Dom ' Regis Wapentagii sui de Newark who Arrests him and the Defendant Rescued him out of the Custody of the said Deputy He saith he was Rescued from the Deputy of the Bayliff of the Franchise and does not say from the Bayliff himself or the Sheriff Per Cur ' its good For in this Action on the Case he shall shew the Truth as it is rei veritate and it s not like the Retorns of Rescues or Indictments which say it was done to the Sheriff or Bayliff himself It was moved for Error Secondly because it is alledged the Lord Burleigh was Ballivo Libertatis Dom ' Regis de Newark and the King cannot have any Liberties for they are extinct when they are come to his hands Sed non allocatur For the King may have such Liberties by the suppression of Abbies which are not extinct but revived per Stat. 32 H. 8. or by some other ways and it shall not be intended to extinct unless it be shewed And the Bayliff of a Liberty may well have Bayliff of a Liberty may have Deputy a Deputy Cro. Jac. 241. Kent and Ellwis Power of Bayliff of Franchises and Pleadings The Bayliff of a Franchise cannot take a Difference between Bayliffs of a Franchise and Sheriffs Bayliffs Bond for Appearance in the Sheriffs Name but Bayliffs of Hundreds may Vid. 3 Keb. 552. Ellis's Case Hundreds that have Retorn ' Brevium are Franchises Hundred by Grant that hath Bayliff by particular Lord is but his Servant and the Sheriffs usually makes another Bayliff to execute there But a Bayliff of an Hundred may waive his Franchise and Arrest as Sheriffs Bayliff and then he may take Obligat ' in the Name of the Sheriff also 3 Kcb. 71. Munday and Frogate The Bayliff of a Liberty must Retorn his Precept and a Bayliff Itinerant needs not
Bond. the Money being paid before the Retorn of the Writ and Common Appearance ordered 3 Keb. 356. Randall's Case If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to sue the Sheriff And the Sheriff shall be amerced till he assign the Obligation to the Plaintiff Pract. Reg. 24. Siderfin p. 24. When Bail is put in de bene esse as Bail taken Bail de bene esse in a Chamber the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keb. 478. The Court cannot compel a Sheriff to assign Where the Sheriff shall be compelled to assign his Bail Bond. his Bond regularly But in some Cases they will as the party was arrested by the Sheriff and through his default in not Retorning the Writ The Defendant died Now in this case he shall not take advantage ofhis own wrong but shall assign the bail Bond or pay the utmost Amerciaments 2 Keb. 388. Hill and Browning It was moved in B. R. to stay Proceedings Proceedings upon Bail Bond shall not be stayed until Special Bail given where the Plaintiff had been prejudiced by delaying of Appearance upon bail Bond upon discharging the Amerciaments and Costs as is usual And it was alledged on the other side That after the same Bail given the Principal had sold his Land and became irresponsible and rendred himself to the Marshalsea And for this cause the Court refused to stay Proceedings and said it would not be done until he had given Special bail because they did not cause him to appear at first according to their Obligation And so it is when the Principal on such default of Appearance becomes a Bankrupt Siderfin pag. 386. Of other Bonds beside Bail Bonds Entred in to the Sheriff what are good and what not And Pleading Vide infra tit Bonds between the High-sheriff and Under-sheriff and others Bond to be a True Prisoner A Bond given to be a True Prisoner as by Law he ought is good and not within the Statute of 23 H. 6. As to this There is a Notable Case of Lenthall and Cooke The Case is Lenthall the Marshal brings Debt on Bond against Cooke The Condition was If the above-bounden A. P. now Prisoner in The Condition the Kings-Bench in Southwark do and shall from henceforth be and continue a true Prisoner in the Custody guard and safe-keeping of the above-named John Lenthall Marshal of the same Prison and in the Custody guard and safe-keeping of his Deputy Officers and Servants or some or one of them until he shall be lawfully discharged without committing any manner of Escape or Escapes during the time of his Restraint Then this present Obligation to be void The Defendant Pleads the Statute of 23 H. 6. Pleadings of Obligations made to the Sheriff colore Officii And further pleads That at the time and long before the Plaintiff was Marshal that P. at the same time was a Prisoner at the Suit of c. And that the Defendant together with the said P. pro easiamento favore to be shewed by the Plaintiff to the said P. made the said Bond c. The Plaintiff Replies and Bond was pro meliori securitate of the said Plaintiff that the said P. should not Escape and traverseth the Ease and Favour The Defendant demurrs And these things were Resolved by the Court. 1. That the Marshal of the Kings-Bench is within the words Gaoler and Keeper of Prisons 2. Bonds made to Gaolers for Ease and Favour of Prisoners are void 3. A Bond given to save harmless from Escapes Bond to save harmless from Escapes is void is within this Statute and void but a Bond to continue a True Prisoner is good And there is no agreement that it is for Ease and Favour appears but the contrary rather for the Plaintiff in his Replication hath Traversed it and the Defendant hath confessed the Replication to be true by his Demurrer 1 Sand. 162. Lenthall and Cooke Latch 23 143. Elworthy and Perryer and Hill there cited This Case of Lenthall and Cooke is Reported by Siderfin and the Case there truly put as here The Intention of the Obligation was for Ease Plea and Favour and Traversing it hath taken it away Now when the Defendant had such Issue Demurrer offered and refused to joyn but demurrs the Defendant agreed it was for Ease and Favour Siderfin 283. Note A little Evidence in such case would serve to prove Ease and Favour A Bond to the Warden of the Fleet to be a True Prisoner The Defendant without pleading the Statute saith it was for Ease and Favour The Plaintiff demurrs The Plaintiff should have Traversed the Ease And Judgment for the Defendant 3 Keb. 320 361. Oakes and Cell Condition is Where D. F. is under his Custody i. e. of the Obligee upon Arrest at the Suit of the Plaintiff in Action of Debt of 1400 l. upon Bond by him to the Plaintiff and at the Request of the Defendant he is permitted to go at Large for six days If therefore the said D. before the 12th of February renders himself a Prisoner to the Sheriff of Middlesex at the Plaintiffs Suit on Action of 1400 l. and remain a True Prisoner till he shall be discharged by Consent of the Plaintiff See the Pleading Quaere de Judgment Sir Tho. Jones Rep. 139. Rushant and Waite Siderfin 132. But a Bond of one in Execution to be a true A Bond of one in Execution to be a True Prisoner is void Prisoner is within this Statute and void And as to this the Case was The Condition of the Bond was If Thomas Manningham keep the Sheriff without damage against our Lord the King and one T. P. and at all times be at the Commandment of the said Sheriff as a True Prisoner and appear before the Justices c. Then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Thomas Manningham was in Execution upon a Recognizance and that the Sheriff made the Obligation for the delivery of the said Thomas Manningham and demanded Conclusion of the Plea Judgment si Actio i. e. If the Plaintiff ought to maintain his Action This is no good Conclusion of the Plea he ought to have Concluded Issint nient son fait For the Statute saith it shall be void and if it shall be void then it shall be void from the beginning and then it is not his Deed. And further That he had not wisely Concluded his Plea for this Special Conclusion had straitned the Defendant so that if the Obligation be void for any other Cause the Defendant shall not have benefit of it And yet because it appear'd to the Judges on the Matter in
512. Palmer and Potter If a Venire fac ' comes to the Sheriff in a Against the Sheriff for a Retorn by one who is nor Bayliff of a Franchise Quare impedit and the Sheriff command the Bayliff of the City of C. to retorn the Pannel who does it accordingly where he had not any Warrant to do it not being Bayliff of a Franchise whereby the Pannel is quasht The Plaintiff for this default in the Sheriff and for his Damages shall have an Action on the Case 38 Assize 13. The Sheriff upon a Fieri facias against J. S. Against the Sheriff and not against the Bayliff makes a Warrant to J. S. to execute as his Bayliff and he does it and afterwards the Sheriff makes a False Retorn viz. that the Writ came Tardé c. by which he is a Trespasser ab initio yet it amkes not the Bayliff a Trespasser 2 Rol. Abr. 562. Parkes and Mosse It was the Opinion of all the Judges in the Case of Fawces and Cotton That the Sheriffs submission to a Fine is no Conclusion to the parties grieved to bring their Actian for the false Retorn of the Sheriff if it were so Sir Thomas Jones p. 39. In retorn on Elegit the Sheriff Retorns That Case and not Debt he had appraised the Goods in specie to 40 l. and extended such Lands and delivered them to the Plaintiff Ubi revera he never delivered them to the Plaintiff Action of Debt lies not in this Case but Action on the Case for it is no Debt in the hands of the Sheriff Cro. Jac. 566. Coryton against Thomas And it s not like to Pyke's Case 14 Jac. which was the Sheriff on a Scire fac ' retorned That he had sold the Goods for so much Money and delivered the Money to the Plaintiff and the Plaintiff thereupon averring that he had not the Money maintained an Action of Debt For there the Sheriff confessed by his Retorn That he had sold the Goods and delivered the Money but here it is not retorned that he medled with the Goods or the value of them so as there is not any Certainty to charge him Pyke's Case 14 Jac. Where the Action is to be brought Action for a False Retorn may be brought in the County where this was or in Middlesex where the Record is Cro. Jac. 532. Parkhurst and Powell So Escape at D. in Wales and the Retorn was Non est Inventus and it was tryed at Westminster the False Retorn being made at Westminster which is the cause of the Action 2 Keb. 362. Mancer and Smith If a Sheriff on Cap ' Utlagat ' will not arrest the party but retorn Non est Inventus an Action may be brought against him in the County where he received the Writ or in Middlesex where the Record of that False Retorn is at Election Hob. 209. Siderfin p. 218 219. Russel's Case A Doubt was Whether Action on the Case for a False retorn on Elegit lies in the County where the retorn of the Exigent was i. e. in Middlesex or where the Land lies And the Court inclined that it lay most properly in Middlesex Winch. p. 100. Sheir against Sir Francis Glover One brings Debt against B. Sheriff of the County Palatine of Lancaster and sues him to Outlawry on Mesn Process and had a Capias directed to the Chancery of the County Palatine who make a Precept to the Coroners of the County being Six to take his Body and have him before the Justices of the Court of Common Bench at VVestminster one of the Coroners being in sight of him and having a fair opportunity to arrest him does it not but they all retorn Non est inventus The Plaintiff hereupon brings his Action against the Coroners in Middlesex And the Court inclined that the Action is well brought in Middlesex because the Plaintiffs Damages arise here by not having the Body here at the Day Bulmer's Case Rep. and Dyer 159. The Chancery retorns to the Court the same Coroner Answer that the Coroners return to him so that the False Retorn is the cause of prejudice and the other things are but Arguments to prove it And the Court conceived an Action would not lye against one Coroner no more than against one Sheriff of London York c. Mod. Rep. 198. Naylor and Sharpley Of Declarations in Actions for False Retorns In Pigot's Case it was alledged for Error that the Declaration was naught 1. The Bond was made for 200 l. dared Process before the Bond made 29 Aug. 13 Jac. and this was before the Bond made yet being retornable in Michaelmas Term and the Latitat upon it after the Bond its sufficient to maintain the Action and the Process always bears Teste the last day of the Term before 2. The Declaration is The Sheriffs Bayliffs It s not shewed the Defendant did not appear arrest the party and the Sheriff falsly retorned Non est inventus It was alledged for Error that the Declaration was not good because he doth not shew that the Bayliffs delivered the Bond to the Sheriff which they had taken for his Appearance nor is it shewed that the Defendant did not appear Sed non allocatur For these serve but for aggravation of Damages and are supplied by the Verdict Cro. Jac. 561. Pigot and Rogers Fieri fac ' for Debt was delivered to the Sheriffs of N. who executed it after which the Sheriffs were discharged of their Office and new ones elected The old Sheriffs redeliver to the party his Goods taken in Execution and indorse Nulla Action against the old Sheriffs bona on the Writ of Fieri fac ' and deliver it to the new Sheriffs so Indorsed And an Action on the Case was brought against the old Sheriffs for this False Retorn and Judgment pro Quer ' And these Exceptions were taken 1. The Plaintiff in his Declaration does not say that the old Sheriffs did retorn Nulla bona but only that they did indorse Nulla bona which is no Retorn 2. He saith not they delivered this Writ thus indorsed to be retorned i. e. by Indenture 3. It appears not whether any Retorn of the Tho' it appear not that any retorn of the contrary was made by the old Sheriffs Writ were made by the old Sheriffs or the new Per Glyn Chief Justice He conceived it to be well and according to the course in that kind For the old Sheriffs to make the Retorn and to deliver the Writ over by Indenture to the new Sheriffs and here was a Verdict And a Retorn is not properly a Retorn till it be filed here yet it is the Retorn of the Sheriff in the County where he is Sheriff and yet it seems Judgment was reversed Quaere Style p. 474. Toft and Day Action on the Case on a False Retorn of Non est inventus by the Sheriff of Galloway in Ireland It was averred that the Sheriff at the time
usum suum proprium convertit disposuit Defendant at the Retorn of the Writ comes in protestando that he had fully Administred for Plea he saith non vendidit seu elongavit c. Et hoc c. Plaintiff replies That the Defendant vendidit elongavit c. and found for the Plaintiff Per Cur ' Tho' this is no apparent Issue but whether devastavit vel non for the Defendant might pay Debts with his proper Moneys and that he might dispose of the Goods to his own use yet it s good after Verdict For the Writ of Scire fac ' suggests That the Defendant bona catalla c. disposuit ea intentione qd ' dict a executio fieret 1 Sand. 306. Merchant Driver And it is the Defendant's own fault to take such an Issue for he might have taken Issue that he had not Goods of that value or that he had paid any special Debt CHAP. XV. Of Prisons to whom they belong and the place where kept Who may be keeper of Gaols c. and how forfeitable Of the Sheriffs of Londons Prison and of the Marshalsea and the Grant thereof Of the Sheriffs detneanor towards Prisoners Of the Prisoners Misbehaviour and what payment of a Debt to a Gaoler shall be good or not And of those that break Prison Of Prisons c. ALL Prisons are the Kings but a Subject may be Keeper Co. 2 Inst 100 580. The custody of County Gaols is incident to County Gaol inseparable to the Office of Sheriff the Office of Sheriff and inseparable from the Sheriff and therefore if the King grant the Custody of such a Gaol to another its void For the Sheriff is the immediate Officer of the Kings Courts and shall be answerable for Escapes and be subject to Amerciaments and therefore he shall put in such Keepers as he shall answer for 4 Rep. 34. Mitton's Case 14 Ed. 3. c. 10. The Sheriff may remove his Gaol from one The place where to be kept place to another within his Bailywick And the Sheriff may hold the Assizes in the Castle where he held them there by Prescription altho' the King grant the Custody of the Castle to another So that tho' the Sheriff may keep the Gaol in what place he will within his Bailywick yet in a particular place not without Prescription Heb. p. 202. 1 Anders 345. Infants or Feme Coverts are keepers of Gaols to charge them in Execution for an Escape 2 Inst 382. As the King may by his Letters Patents make a County so he may in the making of it save and except to him and his Successors such part of the Jurisdiction or Priviledge which the other County from which it is exempted had in it before As in many places in the Realm the Gaol of a Town which is a County of it self or a place priviledged from the County is the Gaol of the County and the place where the Assizes or Gaol-delivery is holden is within the County of the Town and yet serves also for the County at large As in the Sessions-Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by Usage it hath been so And so the Gaol of Berry c. Poph. p. 16. The Case of the Town of Gloucester The Sheriffs of London's Court is moveable Prison of the Sheriffs of London and the Sheriff is chargable with a Prisoner while he is in Prison tho' he be Judge also For why should the City Serjeants give Security to the Sheriff unless the Sheriff be the Officer And it hath been Ruled That altho' the Sheriff be Judge yet a Precept is directed to him Therefore it s a good Plea in Debt on Escape That the Sheriff Commanded the Serjeant at Mace to deliver the Prisoner to him Siderfin p. 318. 2 Keb. 141. Husband and Cole Note The Sheriffs of London may make their Houses their Prisons as well as the Compters And the bringing the person arrested to the Sheriff albeit it be sub dio and not into any House yet it s as good as delivering into the Sheriffs Prison Vid. infra Note Upon Forfeiture the Custody of a Prison is given to another and yet till he is actually removed he shall answer for all Escapes and he that occupies the Gaol by Tort shall answer and actual Escape lies against him who had possession at Will 11 H. 7. 23. Dyer 274. But if he be not sufficient Respondeat superior 9 Rep. Reynold's Case Vide supra Grant by Patent of the Office of the Marshalsea Marshalsea of the Kings-Bench for years is not good for the Inconveniences that might ensue it may thereby become in suspence upon probat of a Will till Administration committed thereof and it might fall to persons Insufficient and in case of Fee or Tail it descends to an Infant the Court puts a fit person in for the time Cro. Car. 587. Meade versus Sir J. Lenthall Vid. more of the Marshalsea 9 Rep. Sir G. Reynold's Case 10 Rep. Case of the Marshalsea Marshal of the Kings Bench shall not be priviledged from Execution But if the Court do grant him in Execution it s an Escape as to all the Prisoners but they may make a new Marshal and then take him in Execution Siderfin p. 68. By Hyde Chief Justice of B. R. The Court Informat ' versus le Marshal cannot sequester the Marshal's Office for not paying a Debt due to any private man But by Windham an Information may be against the Officer for this ill using his Office to shift mens Debts and on that the Court may sequester So on any Contempt by him 1 Keb. 846. Roberts versus Sir J. Lenthall Attorney of B. R. brought Trespass against the Warden of the Fleet. Warden of the Fleet who advised with the Court of C. B. that he being an Officer of this Court ought not to be impleaded elsewhere Per Cur ' Its equality of Liberty and he that first begins the Suit shall have the priviledge and so he was advised to Answer 2 Leon. p. 41. Povey's Case G. brought Action of Debt against the Warden by a Bill of Priviledge but he would not appear and the Court were in doubt what remedy the Plaintiff hath to compel the Defendant to appear For he cannot be fore-judged the Court because he had Estate of Inheritance in the said Office But the Warden having made a Lease of his Office for three years he shall not have his Liberty 2 Leonard 173. Gittonson's Case As for Gaols which have been granted in Fee or Life or which have been held by Prescription may be forfeited several ways Where the Gaoler detains a Prisoner after Fees paid the King may seise the Gaol 2 Inst 43 53. Of the Sheriffs Demeanor towards Prisoners Britton c. 11. saith No Prisoner shall be put in Irons but Traytors or those taken for Felony or Trespass in parcis
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
a mounts to a Supersed before Execution done the Sheriff shall be excused for doing it before a Supersedeas delivered but this is sufficient to supersede the Execution Where Writ of Error is a Supersedeas or not and when 1 Keb. 12. If a Writ of Error be brought and shewed to the Attorney if Execution proceed a Supersedeas quia erronice may go But in Noel's Case 2 Keb. p. 33. Error brought and shewed to the Attorney is no good Supersedeas till it be shewed to the Clerk of the Errors Till the Roll Marked or the Writ delivered unto the Officer in Court Writ of Error is no Supersedeas especially after the Retorn of it 3 Keb. 171. The party ought to take notice of a Recipitur upon the Record if it be Entred and if the party take not out Execution after the Writ of Error allowed it is a Contempt else not and the Attorney is not bound to view the Record if a Writ of Error be brought but may take out Execution if there he not a Supersedeas or notice given to the party Stiles Rep. 105. Winn and Sâ—â—bbins ' Its the duty of the Clerk of the Errors to mark the Roll and not the Attorny Stiles Rep. 159. Mercer and Rule A Writ of Error is duly persued tho the Roll be not marked and if neither the Roll be marked nor notice given to the Attorney of the other side of the bringing the Writ of Error if the party proceed to take out Execution it is no Contempt to the Court. Marking the Roll paying Fees for or allowance Where and when a Writ of Error is a Supersed or not by the Chief Justice of a Writ of Error is no Supersedeas unless actually taken out before Execution per Touisden Error brought and shewed to the Attorney is no Supersedeas until it be shewed to the Clerk of the Errors which is an Allowance in Court and therefore if Execution be done before it be allowed by the Judge or shewed to the Clerk of the Errors it is well done because the Attorney otherwise would never have it allowed but only shewed to the Attorney of the other side but if he shew it and declare his Intention to have it speedily allowed there Execution is superseded in the mean time but yet if Bayl be not given according to the Statute the Execution may be well done which the Court agreed 1 Keb. 33. Noel's Case Formerly per Hales if Execution were gone out before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas and by him it shall not be a Supersedeas unless shewed to the pary and must not foreclose his time in having it allowed for if it be not allowed by the Court within four days it is no Supersedeas and a Writ of Error taken out if it be not shewed to the Clerk of the other side and allowed by the Court it is no Supersedeas to the Execution Mod. Rep. 112. The Sheriff makes his Warrant to a Bayliff to Time of the delivery of the Supersed take the Body of c. Upon a Ca. Sa. and before the Warrant executed the Sheriff receives a Supersedeas and the Bayliff having no notice proceeds yet the Arrest is not lawful but the Bayliff is excusable in Tresspass Moor p. 677. Prince and Allington One purchaseth a Supersedeas and doth not deliver it to the Sheriff till after the fourth County day and then he is Outla wed yet the Outlawry Outlawry is void Moor. n. 73. Ca. sa was delivered to the Sheriff of E. at 11 Clock and a Warrant thereupon made to the Bayliffs 4 hours after a Supersedeas comes to the Sheriff and a Warrant upon this Supersedeas delivered to the Goaler to set the parties at liberty if they were Prisoners who upon it were discharged Per. Cur. the Sheriff hath done well being the same day Lit. Rep. 296. Porter and Corbet Fi. Fac ' to the Sheriff to Levy the Debt and the Defendant brought Error and had a Supersedeas so much Mony as the Sheriff had received before shall go to satisfaction and a Venditioni exponas shall issue upon it Yel p. 6. Tocock and Honyman Supersedeas as to Goods seised is a Supersedeas Where a Supersed shall stay the Sale of Goods or not as to Sale but if the Sheriff hath received the Mony he must return it into Court 3 Keb. 174 Mud and Warren and it is not discharged by the Supersedeas And the case was a Supersedeas came before Execution but in truth after Goods seised and before Goods sold but after the Sheriff had taken security for the Mony and discharged the Execution Sheriff returns that he had received a Supersedeas out of Chancery in the nature of an Aud. Querela It is not good because the Record was not there 1 Rol. Abridg. 383. Merston and Mannory A Certiorari delivered to the Justices of the Peace after Restitution awarded and before it be executed by the Sheriff is not a Supersedeas to the Sheriff unless the Justices make a Supersedeas upon it which if they do not they are fineable for the Contempt Mo. Rep. 673. Note By the Stat. 16. and 17. Car. 2. c. 8. All stays of Execution by Supersedeas on VVrits of Error after Verdict are taken away but the other remains as they did Aud. Quer. on escape where it lies or not or upon other Execution by the Sheriff not well made and delivered Vide infra sub titulo where the Escape of one shall be a discharge of the other or not Audita Querela is an Equitable Writ and not to be allowed without Equity If one in Execution escape of his own wrong he shall never have Audita Querela to discharge himself and the Goaler may retake him but if he escape with the consent of the Gaoler the the Gaoler cannot take him again and if he do the party shall have an Audita Querela Cro. Car. 240. Robinsons Case 1 Rol. Abridg. 307. Trevillian and the Lord. Roberts So if the Sheriff Arrests one in Execution and doth not retorn the Writ but suffers him to escape and upon the alias Capias he Arrests him again Audita Querela lies Mo. 57. n. 163. But where two were bound joyntly and severally one was condemned and taken in Execution after the other was sued condemned and taken the first escapes the other shall not have Audita Querela for there must be satisfaction in part 5. Rep. 67. Blomfields Case A word that is surplusage shall not avoid this Writ as in Arundels Case The Audita Querela comprehended that M. had recovered against the Plaintiff in Debt and that he was taken by Cap. ad satisfaciend at the Suit of M. by the Sheriff of G. who let him go at Large and on Issue upon the voluntary escape it was found for the Plaintiff And it was moved that the Writ of Audita Querela was not good for the words
shall be delivered to his Creditors by a reasonable time to hold till the Debt be fully paid and yet the Body of the Debtor if he be taken shall remain in Prison until the Debt and Damages be paid And this Writ may be Retornable into the C. B. or B. R. Tho' it be within a Franchise the Sheriff is to execute it himself If the Sheriff Retorn That the Debtor is a Clerk then an Extent shall go out against his Lands and Goods only If the Debtor find Sureties they shall be Ordered in all things as the Principal scilicet As to the Arrest of their Bodies and delivery of the Lands and Goods The Statute ought to be shewed to the Court where the Certiorari is Retorned The Creditor out of the Profits of the Lands is to find the Debtor Bread and Water in Prison Of Statute-Staple A Statute-Staple is of two sorts 1. Per Stat. 26 Ed. 3. cap. 9. sic proprie dicitur and is acknowledged before the Mayor of the Staple 2. Per Stat. 23 H. 6. c. 6. before one of the Chief Justices or before the Mayor and Recorder of London A Statute-Staple must be Certified into Chancery Stat. Staple as a Statute-Merchant and on that Certificate Execution shall go presently forth against the Body si Laicus sit and Lands and Goods of the Conisor Retornable into Chancery in the Petty-Bag Office there and not into B. C. or B. R. as Statute-Merchant The Sheriff on this shall take the Body of the Conisor and per Sacramentum proborum c. presently extend and prize and seise into the King's hands his Lands Goods and Chattels and shall Certifie the Appraisment into Chancery Upon which the Conisee shall have a Liberate to the Sheriff to deliver these Lands and Goods to the value of his Debt and shall not be delivered to him by the Sheriff before the Liberate Of Retorns on Statute Merchant Staple and Recognizance and the Sheriffs demeanor in the Executions Before I speak of the Retorns it will be needful to consider the Writs themselves and the different Forms of them For they are the Sheriffs Directions The Writ of Execution upon a Statute Merchant Statute-Merchant is for Lands and Goods thus QUod Vic' omnia bona catalla terras tenementa quae fuerunt praedicti le Conisor sine dilatione Liberari faceret per rationabile pretium extentum tenend ' ut liberum tenementum c. And he is not commanded to do it per Sacramentum proborum c. But the Writ of Execution upon a Statute-Staple and upon a Recognizance in the nature of it on 23 H. 8. is QUod Vic' omnia terras catalla per Sacramentum proborum legalium hominum de balliva sua per quos c. juxta verum valorem diligent ' extendi appretiari faceret in manum nostram seisiri faceret ut ea praefato le Conisee quousque sibi de summa praedicta satisfactus fuerit liberari faciamus c. Et qualiter c. So that as ye may observe by the Forms by force of the Writ on the Statute Merchant the Sheriff may deliver the Lands and Goods presently upon the Extent to the party But by the Writ on Statute Staple or Recognizance in the nature of it he is to extend the Lands and Goods and to seise them into the hands of the King but not to deliver them to the party without a Liberate The Proceedings in a Statute-Merchant is a Difference between proceedings in a Stat. Merch. and Stat. Staple Capias and if the Sheriff thereupon retorn a Cepi corpus then he shall remain in Prison a quarter of a year within which time he may sell his Goods and Lands to pay his Debts and this by the express words of the Statute of 15 H. 7. c. 16. but if the Sheriff retorn Non est inventus Execution shall be granted of his Lands and Goods But in a Statute-Staple and Recognizance the first Process is to take his Body Lands and Goods all in one Writ for this is by the express words of the Statute and a more speedy Remedy than the Statute-Merchant Now on a Statute-Staple and Recognizance the Writ of Execution upon Retorn of the Conisor dead is to extend the Lands nec non catalla which were of the Conisor at the time of his death And this is the constant course as appears by Records of Extents which are in the Rolls On Extent of a Statute-Merchant the Sheriff Retorns That the Body cannot be found and that he had extended the Lands and delivered them to the Plaintiff Reg. 146. The Sheriff may retorn Non est inventus nec habet bona nec terras the Sheriff retorned the Conisor mortuus Dyer 299. Upon Extent of a Statute-Merchant or Staple the Sheriff may retorn That the Debtor is Clerk If he retorn Tradè or Mandav ' ballivo Libertatis he shall be punished Lands in Ancient Demesn shall be taken in Execution on a Statute but not Copyhold-Lands 4 Rep. 67. 5. Rep. 105. Where the Debt of the Conisor appeareth in the Retorn there of necessity his Seisin must be found to be of an Estate in Fee-simple only Dyer 299. Execution upon Recognizance per Stat. 32 H. 8. c. 6. hath the effect of a Statute-staple Retorn ' Liberate post Extent ' fact ' super Oblig ' Statut ' Stapulae VIrtute c. Liberavi infranominat ' B. S. maneria terras tenementa infrascript ' habena ' sibi assignat ' suis ut liberum tenementum suum quousque sivi de debito infrascripto una cum damnis misis expensis suis plenarie fuerit satisfact ' prout c. Retorn ' de Extent ' super Recogn ' vel Stat ' VIrtute istius brevis mihi direct ' cepi corpus infranominat ' W. W. cujus quidem corpus ad diem locum infra content ' paratum habeo prout interius mihi praecipitur Resid ' Executionis istius brevis patet in quadam Inquisitione huic brevi annex ' A. B. Armig. Vic. War INquisitio indentat ' capt ' apud C. in Compraed 12 die Jan. Anno c. coram A. B. Armig. Vic. Com. praedict Virtute brevis Dom. Regis mihi direct huic Inquisitioni annex ' per Sacramentum T. B. c. Et sic XII qui dicunt super Sacramentum suum quod W. W. in brevi praedict nominat die recogn debit ' in eodem brevi spec fuit seisitus in dominico suo ut de feodo de in manerio de A. in Com. praed clar annui valoris in omnibus exitibus ultra reprisas 100 l. Et ulterius Juratores praedict super Sacramentum suum praedict dicunt quod praed W. W. die recognitionis debiti praed seu unquam postea nulla habuit bona sua catalla neque al. sive plura terr five tenementa in Com. praed ad eorum notitiam quod extend appretiari
He rescoused To say he rescued him out of the Custody of the Bayliff is not good him out of the Custody of his Bayliff but out of the Custody of the Sheriff But it is good if it were by the Bayliff of a Liberty Retorn of a Rescous was not quasht for saying in custodia for è custodia but because he saith cepit arrestavit and not in custodia habuit it was quasht for an Arrest may be only by word 2 Keb. 177. The King against Claypoole and p. 227. The King against Sympson Exception was to the retorn of a Rescous because it was è custodia ballivi mei Sed non allocatur for there is veritas legis veritas facti and if either be alledged its sufficient therefore it s as good as if it had been è custodia mea But Keeling held it ill because a Retorn must answer the Law and the difference has alwas been between a Sheriffs Bayliff and a Bayliff of a Franchise And according to the Opinion of Keeling is Dyer 7 El. 241. Dyer 241. 39 H. 6. 42. 2 Roll. Rep. 263 354. If the Sheriff retorn in Banco a Rescous made to his Bayliff Errant by these words viz. Virtute istius brevis c. mandavi ballivo meo Itineranti c. qui mihi sic respondit quod arrestavit c. shewing the year day and place and that a Rescous was made c. This Retorn is not good because this Arrest is the proper Arrest of the Sheriff and no credit is to be given to the Bayliff Errant Mich. 8 Jac. in Scaccario Kent and Heltway's Case But per Cur. such a Retorn in Banco Regis is good enough because the Presidents of the the Court are accordingly and such Retorn by a Bayliff of a Franchise in B. R. is good Tho' its faid 2 Roll. Rep. 78. the Sheriff ought to retorn Rescous made to him and not to his Bayliff yet in truth the Force is made to his Bayliff but it is according to the different course of the Courts Two Exceptions were taken to the Retorn of a Rescous 1. Feci Warrant ' but saith not sub sigillo Officii Non allocatur because he saith feci Warrant ' directè and it s not a Warrant unless it be sub sigillo 2. It was not retorned That it was extra custod ' of the Sheriff but of the Bayliffs Sed non allocatur for the Custody of the Bayliffs Virtute warranti of the Sheriff is the Custody of the Sheriff Sir Tho. Jones Rep. 195. Penfold's Case A Rescous was retorned in this manner by the Sheriff viz. in the Recital of the Arrest he said Mandavi ballivo c. qui virtute praedicti Warranti arrestavit c. and after shews the Rescous Exception was He Commands his Bayliffs to In the Retorn he makes no mention of his Warrant Arrest and saith That by virue of the said Warrant they did Arrest c. and makes no mention of any Warrant but of his Command to them Had this been to a Bayliff of a Liberty it had been good but not to those which are Bayliffs Itinerants But per Cur ' he cannot Command a Bayliff of a Liberty but by his Warrant The Clerk of the Crown said The Common Form is Feci quoddam Warrantum but to a Bayliff of a Liberty it is Mandavi A General Warrant to a Bayliff of a Liberty viz. for all Arrests is good but not to a Bayliff Itinerant by Haughton But by Sir James Ley Chief Justice Tho' the Common Form be Feci quoddam Warrantum yet this tantamounts For the Mandate of the Sheriff to the Bayliff is the Bayliffs Warrant However a Rescouser as to this cannot take advantage but shall be fined to the King 2 Roll. Rep. 263. The Sheriff retorns a Rescous and recites The time and place where the Warrant was made not shewed in the Retorn where a Latitat was to him directed c. he made his Warrant to the Bayliff who arrested W. and that G. made the Rescous It was held to be good tho' he doth not shew the time and place of the Warrant 2 Roll. Rep. 255. Webb and Withers A Rescous was Retorned in this Form by the Sheriff CEpi corpus praedict A. idem A. fuit in custodia mea virtute brevis praedict quousque B. C. D. Vi armis tali die anno in E. F. ballivos meos insultum fecere vulneravere male tractavere A. de custodia mea adtunc ibidem rescussere And two Exceptions were made 1. He doth not shew any Warrant made to Mention no Warrant the Bayliff Per Cur ' The Prisoner is alledged to be in custodia of the Sheriff and the Rescous to be from him and therefore need not speak of the Warrant and this that is spoken of the Bayliff is Surplusage 2. The Rescous is not well retorned because Rescous retorned without Vi armis the Battery is alledged to be Vi armis Per Cur ' This is Surplusage and the Rescous is not retorned to be Vi armis Latch p. 184. Quaere If a Rescous may be retorned without Vi armis But this Case is more truly reported by Rolls Retorn quasht If a Sheriff retorn That he by force of a Capias took the Body of J. S. ipsum habuit in Custodia quousque J. D. J. N. Vi armis such a day insultum fecer ' in W. S. W. N. his Bayliffs praedict J. S. adtunc ibidem è custodia sua rescusser ' praedict J. S. seipsum rescussit This is not a good Retorn because it doth not shew that the Bayliffs had any Authority to Intermeddle And to lay a Rescous without Vi armis is not good and the Vi armis goes to the first Clause only Pasch 3 Car. 1. Wilcox's Case 2 Roll. Abr. 457. The retorn of a Rescous was quasht for these Exceptions 1. It is said Feci Warrantum meum Thomae Taylor and does not say Tho. Taylor was his Bayliff 2. He doth not say for what Cause he made his Warrant And so it appears not whether it was lawful or not Stiles Rep. 159. In a Cap. Utlagat before Judgment the Sheriff retorned That J. S. and J. N. rescoused the party It s good without addition For no Statute nor Book will compel the Sheriff to give Additions in this Case And the Rescousers which were present were Committed to the Fleet Winch. Rep. p. 10. If the Sheriff retorn That the party himself simulcum J. S. J. N. made the Rescous It was said it was not good because there is not any Averment that J. S. and J. N. rescued him And if it Insensible Retorn had been that J. S. simulcum N. rescusserunt A. it is not good against J. S. because it is rescusserunt which is Insensible Mich. 14 Car. 1. B. R. Retorn of a Rescous was excepted to
not be Imprisoned nor Indicted for the act of the Under-sheriff Latch p. 187. Laycock's Case Yet quaere of the Principal Case vid. supra sub tit Under-sheriffs Cap. ad satisfaciend ' is awarded to the Sheriff Action against the Bayliff of a Franchise and not against the Sheriff of Berkshire to arrest J. S. who was then in the Custody of the Mayor and Burgesses of Windsor and he awarded a Warrant to the Mayor c. to take him who did so and after let him escape Action of Debt for this Escape lies against them not against the Sheriff And the like Law of a Bayliff of a Franchise Action of Debt is maintainable against a Not against the Sheriffs or Gaolers Executors Gaoler or Sheriff for escape out of Execution But it doth not lye against his Executors or Administrators Vide supra yet with this difference Dyer 271 322. Where the Sheriff is chargable in his Life-time Difference between a Tort and Levying Money for a Personal Tort or Misfeasanze there his Person is only chargable actio moritur cum persona But where he is chargable for levying Money on a Fieri fac ' and not paying it over there if he dies his Executors are chargable It 's a Duty Cro. Car. 539. Perkinson and Cullyford A Prisoner taken on mean Process upon plaint Against a Serjeant in London before the Sheriff in London is in Custody of a Serjeant and escapes the Action shall be brought against the Serjeant in this Case Siderf p. 318. Action upon the Case against Defendant being Sheriff of London on mean Process and after Issue and Trial by Nisiprius and before the day in Banco one of them dies tho they are reputed one Officer yet they are 2 distinct persons and the Suit shall proceed against the other Hard. 161. Harris versus Phillips and Briggs Where Execution shall be after Execution upon Escape or where an Escape shall not be a Discharge of Execution but that he may be taken again Note If the party negligently Escape the party and the Sheriff may take him again but if voluntarily the only the party may take him again but not the Sheriff but if the Sheriff let him go by the consent of the Plaintiff then neither can take him 2 Keb. 206. Alenson and Butler But tho the party or Gaoler on negligent escape or the party on wilful escape may take him again yet not by a new Process or Capias after a Committitur 2 Keb. 616. Wades Case In case of Sheriffs death If one in Execution on Ca. Sa. escape of his ownwrong yet the Plaintiff cannot have other Execution Hob p. 6. If a Man taken in Execution by a Capias be put in Prison and after escapes and after the Sheriff dies a new Capias lies against him otherwise the Plaintiff would be without Remedy But if a Man be in Prison and the Marshall die and then the Prisoner escapes there is no remedy but to take him again for if after the death of the old Sheriff and before another is made Sheriff a Prisoner go at large this is no escape for he is in Custody of the Law and may be retaken in Execution at any time Hob. p. 60. 41. Ass 15. Mod. Rep. 14. 3 Rep. Westbies Case On voluntary escape the party doth not lose his Interest but may take him again and if the Sheriff die he may have a new Execution if he will So the Plaintiff Eexcutor brought a Sci. fac on a Plea of permisit ire ad Larg how con strued Judgment in Debt for the Testator against the Defendant Quare Execution habere non debet Defendant pleads he was taken in Execution per Ca. Sa. upon this Judgment and committed to the Flâ—et and that the Warden permitted him ire 〈◊〉 Plaintiff Demurs and judgment giv◠〈◊〉 querente and he may have new Execution against the Defendant who escapes out of Prison by 3 Justices cont ' Vaughan And Alanson and Butler is full to the Point Sir Thomas Jones p. 21. Allen and Winter 2d Point Whether permisit ire ad Larg shall be implyed negligenter or voluntarie and it seems ' its not voluntary because the Plea shall be most strongly taken against the pleader If A. be taken on Execution at the Suit of B. and voluntarily Escape by the assent of the Sheriff and after the Sheriff retakes him and keeps him in Prisoâ— he shall be in Execution to B. because tho B. may bring an Action against the Sheriff on this voluntary Escape yet this is at his Election for the party in Execution of his own wrong shall not put B. to his Action against the Sheriff against his will and it may be that the Sheriff is not able to make him recompence 10. Car. B. Trevillian and the Lord Roberts Case Siderf ' p. 350 Allanson and Butler So it is said tho' the Gaoler be Liable to an Action of Trespass for the retaking yet the Prisoner is in Execution and the Reason given is The Body is a Pledge and the Execution must be effectual 3 Keb. 453 463. James and Pierce Uoluntary Escape suffered only to gain Fees ought not to be countenanced nor is no Plea in Bar that the party was intended to reâ—orn to Prison again at his day and the Plaintiff has an Interest which is not discharged by the Escape But my Lord Hobart on a Tryal at Guild-Hall in the Sheriff of Essex's Case was of another Opinion the Case was The Prisoner having been in Execution was willingly let go out of Prison by the Gaoler and then came into the Gaol again and so remained in the Gaol till the time of another Sheriff and then Escaped and an Action of Debt was brought against the Sheriff This is since denyed for Law By voluntary Escape suffered by the Gaoler the Execution gone and he directed the Jury that the Sheriff was not answerable to this Action for when he was suffered by the Gaoler voluntarily to go abroad the Execution was utterly discharged so as he could not lawfully be taken again nor adjudged in Execution by Law tho the party would yield himself to it or the Creditor should allow it 2 Leon. p. 169. 162. If a Prisoner in Execution escape with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff shall never resort to him that escapes but shall hold himself to the Gaoler for his remedy Aliter if he escape voluntary or of his own wrong prout supra But the Law is now held otherwise against Ridgways Case Dr. Drurys Case and the Earl of Essex Case But ' its otherwise in case of a Rescous Hob. p. 202. Sheriff of Essex Case 2 Leon. 117. 162. Phillips and Stone In Sci. fac to have Execution on a Judgment Permissive Escape in Debt Defendant pleads that at another time the Plaintiff had sued Execution by Capias ad satisfaciend and the Defendant was taken in
the Rescue circa c. 26th of February which is uncertain whether it were before or after that Day and if it were after the Day it will not maintain the Declaration for then it cannot be a Rescue the 26th Day But per Cur. the Verdict is good before or after the Day so as it was before the Suit commenced Cro. El. 53. Sheriffs of Norwich versus Bradshaw If Judgment be given in Debt against the Sheriff on Escape he shall have an Action on the Case against the party that escapes altho' the Gaoler Licenseth him to escape and the Gaoler shall not plead this License Mo. p. 404. n. 541. Belchamber and Savage Sheriffs of London brought Action upon the Case against Paine because that he being in Execution under their Custody at Spicer's Suit made Escape c. The Defendant confessed all the Matter but further pleaded That after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the Sum recovered Demurrer Per Cur ' The Action is maintainable tho' the Plaintiff in the first Action had acknowledged satisfaction the payment after doth not take awâ—â— the Action but mitigates the Damage only For the act of a Third person shall not take away an Action once vested 1 Leon. 237. n. 321. Offley and Saltington versus Paine and Hills Case there cited Fitzh N. B. 130. b. it s said there The Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued Qu. CHAP. XXIII Of Pleadings by the Sheriff to Actions brought for Escapes What shall be said a sufficient Fresh-pursuit and where upon Fresh-pursuit made he may retake the Prisoner or not And where the Prisoner upon his being retaken shall have his Audita Querela or not Fresh-pursuit how to be pleaded Pleading the Statute of Limitations Pleading acknowledgment of Satisfaction on Record by the Plaintiff or accord with Satisfaction Nultiel Record pleaded and how Escape by the Plaintiffs Consent By the Sheriff License Traverses Supersedeas Protection Priviledge pleaded Bar by the Voluntary Escape Venue Issue Evidence and Special Verdict Of Escapes of Felons Of Pleadings AS for the Pleading to Escapes directly the Defendant either denies the Escape and then he pleads Non permisit ire ad Largum or else he confesseth the Escape but pleads that he made Fresh-pursuit or that he escaped by License of the Plaintiff There are other Pleas common with other Actions as Statutes of Limitations Satisfaction Nul tiel Record c. Nil debet But I shall first Treat of Pleading Fresh-pursuit And as to the right understanding of that I shall enquire What shall be a sufficient fresh persuit or where upon a fresh persuit of the Sheriff he may retake the Prisoner or not and where the Prisoner upon his being retaken shall have his Audita Querela or not Tho the Prisoner that Escapes be out of the view yet if he be taken in recenti Executione he shall be in Execution again and tho he fly into another County where the Sheriff had not Power yet for as much as the escape was of his own wrong whereof he shall not take Advantage the Sheriff may retake him in another County and he shall be in Execution And fresh persuit is not that he must have him alwaies in his view but if he makes fresh persuit so that it doth not appear fully there was a default in the Sheriff in his persuit tho he be a day and a night out of his view yet he shall be said to be in Execution for the party against his will upon the retaking as if the Prisoner escape to an House and the Sheriff sets a Watch and takes him when he comes out If the Gaoler make a fresh persuit before any If the Sheriff retake him on fresh persuit before Action brought he shall be excused Action commenced and he is retaken the Gaoler shall be excused but ' its otherwise if before the Prisoner be retaken the party brings his Action for at the time of the Action brought he had good cause of Action but it seems by VVinch p. 35. that retaking upon fresh suit after Action is good but not after Issue joyned Cro. Jac. 657. Whiting and Sr. G. Reynells Case Stow Attorney of C. B. was in Execution in Norfolk for 1000l and he by Practice procured himself to be removed by Hab. Corp. before Coke Chief Justice at the Assizes in Lent and then escaped to London and in Easter Term following the Bayliff did retake him the Opinion of the Court was that the fresh Suit made was good tho he took him again at the end of the year if inquiry was made after him and so by consequence Action for false Imprisonment against the Bayliff did not lie Mich. 8. Jac. B. C. Stones Case If the Plaintiff bring his Action before the Sheriff retake him or if the Sheriff does not If the Sheriff does not make fresh persuit yet he may retake him make fresh persuit yet in both Cases the Sheriff may retake him and keep his Body in Custody till he agree with him or he may have Action on the Case for his Tortious escape And where the Prisoner escapes of his own wrong and is retaken he shall never have an Audita Querelâ— against the Sheriff but if he escapes with the consent of the Gaoler he cannot retake him and if he do the party shall have Audita Querela If one in Execution escape the Sheriff may not retake him but upon fresh persuit but he shall Gaoler makesfresh persuit and before he is taken the Prisoner dies yet Action lies against the Gaoler have Action on the Case against him or Trespass quare prisonam fregit 3 Rep. Ridgways Case Poph. 41. mesme Case Jones 145. Harvey and Reynels Case Cro. Jac. 657. VVhitneys Case 2 Rol. Reâ— 282 283 mesme Case A Prisoner escapes the Gaoler makes fresh persuit and before he hath taken him the Prisoner dies this is the Act of God and yet because it was once an escape the Action of escape lies against the Gaoler Poph. p. 186. Upon escape the Sheriff may not in fresh In fresh persuit Sheriff not â—o break open a Chest persuit enter into the House of I. D. and break the Chest of I. N. to search for the Prisoner 2 Rol. Abrig 564. Bennet and Gray If a man in Execution in the County of Devon escapes into the County of Somerset where he is taken in Execution at another mans Suit and after the Sheriff of Devon on fresh persuit finds him in Prison in Somerset-shire it is made a Question how he may charge the Sheriff of Somerset with the first Execution or put the party in Execution seeing he shall not retake him 1 Rolls Abrig 902. Tho Information lies against the Sheriff for Information against the Sheriff for escape escape yet it lies not on escape after taking