he may abate it 29. Ed. 3. 21. b. What is Presentable in a Franchise as default In what cases what is presentable in a Franchise is presentable in a Tourn or not in Repairing a Cawsey is not presentable in the Tourn because out of his Jurisdiction being in the Franchise But if the default be in the Lord for not Repairing it this may be presented in the Tourn because the Franchise was first derived out of the Tourn 10 H. 4. 4. 17 Jac. B. R. Loader and Samuell Where and what Inquisitions or Presentments taken in the Sheriffs Tourn shall be presented to the Justices of Peace and how they shall proceed upon them By the Statute of 1 Ed. 4. c. 2. the Presentments shall be by the Sheriff at the next Quarter-Sessions and there shall be Inrolled and upon this they assess the Fines and Amerciaments and shall make Process to levy it to the use of the Sheriff Jones 300. Griffith and Bedle. Sheriffs Tourn when and where to be kept By the Statute of 21 Ed. 3. c. 15. the Tourn ought to be kept infra mensem post Festum Paschae post Festum Sancti Michaelis 31 Ed. 3. c. 13. Who shall be amerced for not coming to the Sheriffs Tourn or not Not a Baron not Tenants in Ancient Demesn I shall cite a Case or two as to Pleading in Actions about Americaments for further Explication Trespass for taking a Bullock Defendant Justifieth because at the Sheriffs Tourn held infra mensem Paschae viz. 18 Apr. the Plaintiff was presented for not appearing at the said Tourn being debito modo summonitus and Amerced by the Jury which was affeered by four of the Jury at 40 s. And after at the next Sessions of the Peace viz. 22 Apr. it was certified and ratified by such Justices of the Peace whereupon the Steward made a Warrant to him to levy it and so sold it The Plaintiff demurrs 1. Because the Defendant doth not alledge that the Tourn was kept infra mensom post Festum Paschae but infra mensem Paschae which may as well be before Easter as after 21 Ed. 3. 15. 2. Because the Americament is alledged to be made by the Jury and affeered by four of the Jurors where it always ought to beassessed by the Court for its a Judicial Act and shall be affeered by the Affeerers appointed Lib. Intr. 119. Affeerment 3. That the Amerciament was levied by the Defendant as Bayliff by Warrant from the Steward of the Court where by the Statute of 1 Ed. 4 it is appointed that no Fine or Americament in the Tourn shall be levied unless it be certified at the next Sessions of the Peace by Indenture and Enrolled and by Process made from the Justices to the Sheriff c. Griffith and Bedle Cro. Car. 275. Judgment for the Plaintiff In Trespass the Defendant Justifies for an Amerciament set in the Sheriffs Tourn and Exceptions were taken to it 1. Because he Justified by Praecipe to him lawfully granted and saith not at what place 2. He prescribes for a Tourn to be held and doth not shew any or what Estate And by Hutton a Prescription for a Tourn Prescription by a Que Estate or an Hundred Court by a que Estate is naught because it lies in Grant and is not manureable but he ought to have said That the King and all they that were seised of the said Hundred have had and from the time c. And per Cur. Except he shewed before whom the Tourn was held it was naught and it ought to be holden before the Sheriff 1 Brownl 198. Darney and Hardington Oath of Allegiance to be taken every Sheriffs Tourn C. Magna Charta 73 147 148. Hundred Courts Vid. suprà tit Bayliffs It is derived out of the County Court for the Ease of the People as the Leet was out of the Tourn The Style is thus Curia E. C. Mil ' Hundredi sui de B. in Comitat ' B. tent ' c. coram A. B. Seneschallo ibid ' Vide pluis 4 Inst 267. And the Forms of proceedings in this Court Vide Wilkinson CHAP. VI. Of the Original Process in Real Actions and Personal Actions with the Retorns as Summons Attachment c. Of Mean Process what Arrest by the Sheriff or Bayliff shall be good or not Of the Bayliffs shewing his Warrant What Arrest is good as to the time of the Arrest before or after the Retorn in respect of the persons Arrested who are priviledged or protected from Arrests or not in regard of Persons or Courts where Arrest shall be Lawful or not in respect of the Warrant Of Warrants to Special Bayliffs or known Bayliffs of Pledges de Prosequendo Of Original Process LET it be observed that regularly Writsare directed to the Sheriffs or Coroners but in special Cases to the Plaintiff himself or to others to the Party as a Prohibition ne exeat Regnum to others as to Judges Temporal and Ecclesiastical or Civil to Serjeant at Armes to Mayor and Bayliffs and where the Sheriff is Judge of the Court a Writ which should have been directed to him shall be directed to the Serjeants of the Mace i. e. where there are such Serjeants Pract. Reg. 345. The Original Process in Real Actions is a Summons so in all Personal Actions except in Trespass and in that there is no Summons but Attachment and Distress in a Real Action the Sheriff shall summons the Tenant upon the Land in demand but in Personal Actions the Sheriff must summons the Defendant by his Person And in a Praecipe there ought to be two Summoners i. e. two good substantial Neighbours If the Tenant be sufficient he must retorn two common Pledges for the Plaintiff and then the names of the Summoners thus Respons ' A. B. Vic' Comit ' infra scripi ' plegij de prosequendo John Doe Rich. Roe Summonitores infra nominati J. S. the Defendant VV. Browne J. Cook But if the Tenant or Defendant be insufficient then the Retorn must be thus Respons ' A. B. Vic' Com' infra script ' plegij de prosequend ' J. Doe R. Roe Infra nominatus J. S. nihil habet in Balliva mea per quod or unde summoniri potest nec est invent ' in eadem If it be in any Real Action or in any Action of Annuity Debt Covenant or other Writ where Summons lieth If in Trespass it is thus Infra nominatus C. D. nihil habet in Balliva mea per qd ' Attachiari possit nec est invent ' in Balliva mea If two Defendants name them if more name the two caeteri Defendantes infra nominati nihil habent If upon Distress then thus Infra nominat ' A. B. nihil habet in Terris Tenementis Hereditamentis infra scriptis per quod ipsum distringere possum If the Sheriff will delay the execution of the Writ he may return it in two manners 1. Infra nominat ' J. S. non invenit
of the delivery of the Capias had the person in Custody at Galloway in the City of Dublin and the Action is brought in the County of the City Per Sanders On a Capias delivered to the Sheriff out of the County he is not bound to hold him there So upon a Latitat which is no Warrant to the Sheriff to take him but only in his Bailywick Per Cur ' This may be by Habeas corpus or Fresh Suit and being after Verdict that finds the False retorn for the retorn was Non est inventus in balliva and the Jury find that he was in balliva at the retorn of the Writ the Court will presume him legally in Custody 3 Keb. 557 561 600. Bradshaw and Andrews Plaintiff declares he had prosecuted a Capias against Chapman who was indebted to the Plaintiff in 100 l. and delivered it to the Sheriff at Newport P. and that the Sheriff postea adtunc ibidem potuisset arrestar ' the said Chapman but that the Defendant machinans to delay the Plaintiff c. arrestare the said Chapman c. adtunc ibidem abstinuit recusavit and had falsly retorned Non est inventus Defendant pleads Non culp ' and Verdict pro Quer. Per Cur ' After Verdict the Declaration is good enought and tho' potuisset arrestare without shewing how or that the Defendant was in view of Chapman and potuisset denotes a possibility and this is true if he were in the County and the Sheriff is not bound to attend his Office in every particular case yet it shall be intended such Matter was given in Evidence by which it appeared to the Jury that the Sheriff potuisset arrestare and the Declaration quod recusavit doth imply Opportunity But it was agreed to be good Cause of Demurrer Sir Tho. Jones p. 40. Fish versus Aston Sheriff of Bedford Error brought by the Sheriff upon a Judgment against him upon a Writ of Scire fac ' for an ill Retorn of a Fieri fac ' 2 Sand. 338. Actions against the Sheriff for Non-feasance For not retorning of Writs If a Capias issues against J. S. and the Sheriff doth not make any retorn upon the said Writ he is a Trespasser ab initio and false imprisonment lies against him 16 H. 7. 14. 3 H. 7. 36. 21 H. 6. 5. 5 Rep. Hoes Case Before the Stat. VV. 2. 19. Regularly for not retorning a Writ the Sheriff was amerced Quousque c. but for a False Retorn or imbesilling the Writ Action lay at Common Law Co. 2 Instit 451. Rast Entries 501 626. Presidents of Actions on this Statute This Statute prevents the Retorn of a Tarde i. e. quod breve adeo tarde venit quod praeceptum Regis exequi non potuit It 's a Question in Sir VVilliam Clarks Case if â—up utlegat Action on the Case lies against a Sheriff for not retorning a Cap. Utlegat It seems it does for the Party has loss by not retorning the Writ tho' the Queen may amerce him for his Contempt Cro. Eliz. p. 873. Sir VVill. Clark Action on the Case lies against a Sheriff for not Summons retorning a Summons 1 Leon. 146. Marsh and Astrey If a Capias be retorned out of an Inferior Inferiour Court Court to an Officer of the Court to take J. S. and he took him accordingly and does not retorn the Process he is a Trespasser ab initio for as much as he is the Officer that ought to retorn it Bayliff errand or Servant not to be punished for not retorn of the Sheriff and he is a Sheriff within his jurisdiction 2 Rol. Abr. 563. Kirk and Atkins If a Capias in Process be awarded to the Sheriff and he makes his Warrant to a Bayliff-errant who is a sworn and known Bayliff within â—he County to take him and he does it accordingly if the Sheriff does not afterwards retorn this Writ it shall make him a. Trespasser ab initio because he is but the Sheriffs Servant and for this he ought to be subject to the wrong done to the party as his Master is 20 H. 7. 13. 21 H. 7. 22. M. 14. Car. B. R. How and Stocken har But if the Bayliff-errant in that Case retorn the Body and the Warrant to the Sheriff altho' the Sheriff doth not retorn the Writ yet he is excused And if the Sheriff upon such Process makes special Bayliffs and they take the Party and the Sheriff doth not retorn the Writ altho' there is not any default in the Bayliffs yet they are Trespasser ab initio because they are but Servants to the Sheriff and by his appointment but this seems a sorry reason And I take it Girling and Allens Case is good Law For tho' the Sheriff ought to retorn his Writ otherwise his Justification in False Imprisonment is not good yet it is not so with his Servant for he has no means to inforce the Sheriff to make retorn thereof and if what he does is legal it shall not be made illegal to him by the act or default of another Crok Car. Gilling and Allen. 11 Car. B. R. Upon a Capias in Process if the Sheriff makes Where no default is in the Bayliff of a Franchise he is excused his Warrant to a Bayliff of a Franchise to execute it who does it accordingly and makes retorn of the Body and Warrant to the Sheriff and the Sheriff after does not retorn the Writ yet this shall not make the Sheriff a Trespasser ab initio because he had done his duty and no default is in him and he is the Officer of the Franchise and not of the Sheriff 8 Ed. 417. b. 21 H. 7. 22. The Court was moved that the Sheriff may Sheriff not to file the Retorn depending Action on the Case against him not be admitted to file the retorn of a Writ because action on the Case was depending against him for not retorning it because then the Action would abate and it was granted by Rolls Stiles 408. Laying the Action and Declaration for not Retorning In a Writ of Entry sur disseisin the Land lying in the County of H. if the Plaintiff deliver the Writ of Summons to the Sheriff of H. in London and after the Sheriff summons the Defendant upon the Land and after doth not retorn the Writ for which Action on the Case is brought in London where the Writ was delivered to him and the Defendant pleads he did not summon him c. upon which they are at issue this may be tried in London 2 Roll. Abr. 807. Rash and Astrey Action on the Case against an Undersheriff and declares whereas the Plaintiff had brought a Writ of Entry against H. C. and delivered it to the Undersheriff to be executed in forma Juris and gave him two shillings for the executing of it and that at such a day he caused the said H. C. to be summoned yet falso c. he did not retorn the
Retorning one exempt 1 Rol. Rep. 119. Action on the Case adjudged to lie against the Sheriff for Retorning one of a Jury who lived in a place which his exempt and Co. Mag ' chap. 382 130 447 488 461. Action on the Case lies against the Sheriff for Retorning a person exempt of a Jury The Sheriff must not Retorn magis remotos minus What Jurors the Sheriff must Retorn sufficientes magis suspectos by the Statute W. 2. chap. 38. and if he do the Plaintiff or Demandant shall recover Damages by the Statute if he be delayed and the Defendant if he lose his Land and Articuli super chartas gives double Damages to the Demandant The Sheriff by Statute W. 2. c. 38. must not Retorn Men decrepit senes ultra 70 annos hominos non in patria commorantes This Statute is a direct Prohibition in it self and therefore the Party grieved may have Action on the Act against the Sheriff without giving notice of Sickness Notice or Non-commorancy yet the use is to Sue out a Writ grounded on this Statute that he Retorn them not and notice by word is good if notice were requisite Co. 2 Inst 477. Peers of Parliament not to be Impannelled Remedy for undue Retorns Who is the party grieved that shall have his Action nor Tenants in Antient Demesne Where the Demandant or Plaintiff is delayed of his Suit by such Retorn of the Sheriff as magis remotos he shall by the Statute recover Damages against him or where the Defendant after he has lost his Land by the Oath of them so Retorned contrary to the Form of the Statute and after he doth convict them in an Attaint and so is restored he may then have his Action on this Statute for his Damages 2 Inst 448. sur Stat. W. 2. c. 38. If one dwell in Middlesex and had Freehold in the County of York over 40 l. the Sheriff of York may not Summon him to Middlesex to Try a Cause at the Bar in Westminster for Land in Yorkshire W. 2. c. 42. 1 Rol. Rep. 163. In a Writ of Right or any other Writ a Baron Peer of the Realm may excuse himself Action on the Statute W. 2. c. 8. for Retorning Men more remote or suspected Count and Bar inde Dr. Bonhams Case 8 Rep. 118. Upon a Tryal between a Peer and another Peer the Sheriff must retorn a Knight but if he do not and the Peer doth not challenge the Array but the Jury give a Verdict he shall not have advantage of this afterwards Lord Powes and Kertman P. 9 Car. A Jury was Empannelled of the Town of Southampton and called to the Bar and made default and the Men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Retorn should be made of the Men of that Town to be of any Jury and prayed the allowance of their Charter and the Court appointed them to plead their Charter and so they did 1 Brownl p 36. If a Man has a Charter of Exemption and sheweth it to the Sheriff yet he may Retorn him for the Sheriff is not a Judge to allow or disallow his Charter but he must Sue out a Writ of allowance of his Charter and deliver the Writ to the Sheriff and shew his Charter to him and then if the Sheriff Retorn him Action on the Case lies against him On a Dorsetshire Tryal at the Bar on default of all the Jurors but three It appeared that Sheâ—iff countermands the Summons the Sheriff had by command of the Plaintiff countermanded their Summons against the Gree of the Defendant who now prayed a Tryal But this being impossible for the Court in such Case will not supply the Jury with a Tales de Circumstantibus No Tales de circumstantibus on Tryal at Bar. But they offered to Non-suit the Plaintiff on Record and conceived the Defendant should contribute to the payment of the Jury because they should remain indifferent Jurors 2 Siderfin 77. Hunt and Hollis Retorn of a Distringas for appearance of the President Defendant in the Hustings 2 Sanders 233. Retorn of a Jury by the Bedels of the four next Wards 2 Sanders 244. If the Sheriff Retorn but 40 l. which is the Issues Action case against the Sheriff for Retorning two several Issues usual Issues on Distring as Juratores the Court on prayer of the party cannot cause him to Retorn greater but only make a Rule that good Issues be Retorned But by Twisden Action on the Case lies against the Sheriff 1 Keb. 475. The Plaintiff ought to bring a Writ against the Sheriff on Averment against the Sheriffs Retorn of Issues Averment that he might have levied greater Issues and so the Court may increase them Note Before Stat. W. 2. c. 39. the Plaintiff could not aver against the Retorn of the Sheriff if he Retorned too small Issues for he is but an Officer in Court and has no day in Court to answer the Plaintiff party But now by 1 Ed. 3. the Plaintiff may aver what the value of the Issues be Rents of the Land Corn in the Grange What shall be said Issues Hay in the Barn all moveables except Riding furniture and Utensils of House Retorn of the grand Inquest Stat. 11 H. 7. c. 9. No Indictment shall be found by any persons named to the Justices without due Retorn of the Sheriff but by Inquest of lawful liege People Retorned by the Sheriff One Scarlet whom the Sheriff had not Retorned by confederacy betwixt him and the Clark who read the pannel procured himself to be sworn of the grand Jury with intent to indict his Neighbours maliciously and he did so he was adjudged an Justices may alter the Pannel Offender within this Law and by Statute 3 H. 8. c. 10. The Justices of Gaol Delivery or Justices of the Peace of whom one to be of the Quorum in open Court may alter the Pannel Retorned by the Sheriff to enquire of the King only by Addition or substraction of any of the Jurors so Retorned and they have power to command the Sheriff to put other in the Pannel according to their Discretion And the Sheriff ought to Retorn the Pannel so reformed upon the Penalty of the said Act. So that none can be of any Grand Inquest but by the Retorn of the Sheriff Coke 12 Rep. Rob. Scarlets Case Dalton 394. Note By the Statute of 4 5 of William and Mary all Jurors are not to have 10 l. per annum vide infra It is very needful for the High Sheriff to have a Book containing the Names of all the Freeholders in his County and their sufficiences that he may make the Pannells according to his Oath and better know Pledges and Sureties As for Issues lost for default of appearance scilicet by Jurors or by Tenant or Demandant the Sheriff may not levy till they shall be estreated under the
Seal of the Exchequer and the same delivered to him for without Warrant he may not Levy the same 27 Ed. 1. c. 7. Other erroneous Proceedings and Misdemeanors of Sheriffs about and concerning Jurors After the parties were at Issue in Trespass and an Habeas corpus awarded against the Jury the Common-Bench in which the Action depended Supersedeas restrains the Sheriff from Retorning a Jury awarded a Supersedeas quia improvidè c. which was delivered to the Sheriff who notwithstanding retorned the Jury and tryed the Cause This was assigned for Error and in nullo est erratum pleaded it was adjudged Error For the Error assigned is a Matter of Fact depending on a Matter of Record and then the Defendant What is confessed by pleading In nullo est erratum by pleading In nullo est erratum had confessed this that is to say That such Supersedeas was awarded and delivered to the Sheriff before the Trial. Upon which it follows that after the Supersedeas delivered the hands of the Sheriff are closed that he cannot proceed to distrain the Jury nor to Retorn the Writ before the Justices of Assize It s a manifest Error if the Sheriff Retorn the Writ of Hab ' corpora at the Assizes with Nisi prius after Supersedeas awarded for staying the Retorn of the Writ as the Proceedings are erroneous in Inferior Courts after Habeas corpus delivered without a Procedendo Yelv. p. 57. King and Andrews Cro. Jac. p. 43. King and Hill It is not necessary for the Sheriff to Retorn Reasonable things shall be intended to be done the Pannel of the Jurors Names but to say they are de vicineto of such a place for so it shall be intended and the Forms of all Retorns of Jurors are so Pract. Reg. tit Retorn In a Writ of Error Eleven Jurors were Retorned and one Stranger yet because it was the Retorn of the Sheriff it shall not abate 1 Roll. Rep. 302. The Statute of Eliz provides There Reasonable things intended to be done shall be two Hundredors in a Jury yet it s never seen that the Retorn of the Sheriff is so So the Statute of 42 Ed. 3. c. 11. is That the Sheriff shall arraign the Pannel in Assize four days before the Assize yet its never Retorned to be so done but such reasonable things shall be intended to be done unless the contrary appear 2 Siderfin p. 144. Barclee's Case An Attorney was picked over the Bar for directing a Sheriff to retorn Jurors Names Mo. 882. n. 1237. Hanson's Case Note But now by the Statute of 4 5 W. M. Stat. 4 5 of W. M. all Jurors other than Strangers per medietatem Linguae Retorned upon Trial of Issues joyned in the Kings-Bench Common-Pleas or Exchequer or before Justices of Assize or Nisi prius Oyer and Terminer Gaol-delivery or General Quarter Sessions of the Peace shall have in their own Name or Trust within the same County Ten pounds per annum above Reprizes of Freehold or Copyhold Land or in Ancient Demesn or in Rents in Fee-simple Fee-tail or for their own or some other persons Life and in Wales Eight pounds per Annum If any be retorned of Lesser Estate he may be discharged by Challenge or upon his own Oath nor shall a Jurors Issues be saved but by Order of Court for reasonable Cause proved upon Oath The Sheriff Coroner or other Minister retorning any person of Lesser Estate shall forfeit Five pounds to Their Majesties for every person so Retorned They must be summoned six Days before the day of their Appearance and none shall take a Reward to excuse a Jurors appearance on pain to forfeit Ten pounds to Their Majesties This Act extends not to Cities Burroughs or Towns Corporate Of Challenges A Challenge to the Jurors is Twofold To the Array Polls To the Array is to except against all the persons Impannelled And as to this there is a Challenge Principal or for Favour Note That the Challenge to the Array is in respect of the partiality or default of the Sheriff or other Officer that made the Retorn and not in respect of the Persons retorned where there is no partiality or default in the Sheriff For if the Challenge to the Array be found against the party that takes it yet he shall have his particular Challenge to the Polls If the Sheriff or other Officers be of Kindred or Affinity to the Plaintiff or Defendant if the Alliance continue a good cause of Challenge 1 Bulstr. 5 6 7 8. Earl of Salop versus Earl of Rutland Challenge was taken to the Array because the Sheriff was Cousin to the Lessor in Ejectment and concludes not to the Favour it s a principal Challenge Yet in Roll. Rep. 183. it s adjudged a Principal Challenge and in 1 Roll. Abr. 328. Guest and Bridgman saith It is not a Principal Challenge that the Lessor is Cousin But Trin. 1657. B. R. in the Lord Brook's Case its a Principal Challenge Cro. Jac. 575. Simonds and Walsh 2 Rolls Abr. 182. Venire fac ' was awarded to the Coroners on surmize that the Lessor in Ejectment was Servant to the Sheriff It was doubted whether it was a Principal Challenge in 1 Jac. Harbottle's Case Coke said It was Adjudged in 27 El. in Packington's Case that it was not a Principal Challenge but in Spicer's Case it is Resolved otherwise Cro. Jac. 21. Dyer 7 367. If the Challenge be taken for Cosinage it ought to be shewed coment Cousin but in such case Challenge to a Juror is not necessary It s clearly a good Challenge to the Array that the Sheriff is Cousin to the Wife of the Defendant tho' the Wife is no party to the Action But it must be averred that she was alive or had Issue at the making of the Pannel 1. If the Jury may try a Challenge for Cosinage of the Sheriff to the Plaintiff or Defendant and sometime the Coroners or Attorneys in Court are Elisors 2 Roll. Rep. 363. Lloyd and Elisors Williams If the Defendant challenge the Array for that the Sheriff is Cousin to the Plaintiff it is no Counterplea of the Challenge that the Sheriff is also Cousin to the Defendant but the Array shall be quasht because the Defendant first took the Challenge Pasch 41 El. B. R. 2. If any one or more of the Jury be retorned at at the denomination of the party Plaintiff or Defendant the whole Array shall be quasht 3. If the Plaintiff or Defendant have an Action of Battery or Debt against the Sheriff or if the Sheriff have parcel of the Land depending on the same Title or if the Sheriff or his Bayliff be either of Counsel or Attorney or Servant or Gossip of either party all the Array shall be quasht A Prayer to Elisors in Trials at Bar may be at Elisors the Suit of the Defendant or Plaintiff but in Nisi prius at the Prayer of the Plaintiff only Consanguinity
by him in Ejectment contains more Acres of Land than were in the Declaration the Writ is erroneous Pract. Reg. 131 132. Trespass lies against the Sheriff if he does not Execution must be done in the right places execute on the right places 1 Keb. 278. Lufton's Case If a man bring Ejectione firmae of 40 Acres of Land and recovers 30 and not the residue upon the Writ of Execution the Sheriff may deliver to him any viz. three or more in the Name of all without setting out the Land recovered Where possession of some in the Name of all good or not by Metes and Bounds altho' the Plaintiff had not recovered all the Acres whereof he had brought this Action and whereof he had supposed the Defendant Tenant But if a man be to be put in possession of divers Messuages upon a Writ of Execution and the Houses are in possession of several men he ought to go to every House particularly and to deliver Seisin of it and the delivery of Seisin of one in the name of all is not sufficient for he ought to deliver plenariam Seisinam Trin. 15 Jac. Floyd and Bethell's Case In Formedon on Non-tenure of three Messuages In what Case the Plaintiff is to shew to the Sheriff what part the Jury intended the Jury found he was Tenant of one of the Messuages and not of the other the Plaintiff may have Judgment and a Writ to the Sheriff to deliver Seisin And the Plaintiff at his peril is to shew to the Sheriff what Messuage it was the Jury did intend for the Jury is not tyed to set Bounds to it Cro. Eliz. 256. Scriven and Prince If a Writ of Execution goes to the Sheriff to Acres that are to be delivered must be according to the Usage of the Country Of Rent or Common Seisin of Rent or Common by Parol put a man in possession of 20 Acres of Land the Sheriff ought to give him 20 Acres in quantity according to the Usage of the Country where it lies and not according to the Statute Floyd and Bethel If a man recover Rent or Common upon which a Writ issues to the Sheriff to put him in possession and the Sheriff comes upon the Land and delivers to him seisin of the Rent or Common by Parol that is well made and the Recoveror is in actual possession of this 22 Assize 84. If the Under-Sheriff delivers Possession riotously Riotous possession by Under-sheriff Attorney in C. B. not to be enquired of by B. R. without Information on Extent on a Statute Merchant and the Sheriff refuseth to Retorn any Jury to enquire of the Force and he was an Attorney of the Common-Pleas the Court of Kings-Bench unless the Cause were depending cannot take notice of the Offence without an Information 2 Keb. 541. Morgatroyd versus Peebles Vid. Mo. 781 462. VVhere shall be a New Execution or not and of the Sheriffs Retorn on this VVrit ThemRecoveror is put in possession by Habere fac possessionem and the Defendant ousts him again What remedy In 2 Brownl p. 216. Stile 's Case in B. R. by After Possession and Ouster what remedy New Execution Retorn VVilliams he cannot have a New Writ of Execution but is put to his New Action and the filing of the Writ is not material for it is within the Election of the Sheriff whether he will file or retorn it or not But if the Execution had not been fully made as in the Execution of an House some hid themselves in the upper Rooms and when the Sheriff was gone they came down and ousted those that the Sheriff had put in possession before in such a Case a New Writ of Execution was awarded By the Chief Justice In this Case of Re-entry the Court may award an Attachment against him for Contempt against the Court. But in Peirson and Taverner's Case the Recoveror is put in possession by Hab. fac possess and the Defendant ousts him again if the Writ be not Retorned the Plaintiff shall have a New Retorn Hab. fac possess 1 Roll. Rep. 353. And if Hab. fac seisinam be executed it is good without Retorn yet the Court may command the Sheriff to Retorn it 1 Roll. Rep. 77. On Habere fac seisinam the Sheriff cannot Retorn That another is Tenant of the Land by Right for that cannot come in Issue between the Demandant and him and therefore he ought to execute the Writ 6 Rep. 52. Boswell's Case Upon Habere fac possess the Sheriff retorned Retorn That in the execution of the said Writ he came to the House recovered and removed out all the persons he could find and delivered to the Plaintiff possession and departed and soon after Three persons secretly Lodged in the House expelled the Plaintiff On Notice whereof he returned again to the House to put the Plaintiff in full possession but the others resisted him so that without peril of his Life he could not do it 1 Leon. pag. 145. Upton and Wells On this Retorn the Court awarded a New New Hab. fac possess Execution A Writ of Habere fac possess was directed to the Sheriff a Writ of Error was brought and a Supersedeas granted directed to the Sheriff to stay Execution And the Supersedeas was shewed to the Sheriff as he was going to do Execution yet he refused to obey Execution by the Sheriff after a Supersedeas it and did Execution notwithstanding This is a great Contempt in the Sheriff and the Court ordered a Writ of Restitution to be granted 2 Bulstr 194. Thomas and Owen Retorn of Habere fac ' possessionem VIrtute istius brevis mihi direct ' Justiciariis infrascript ' Habere feci quod tali die anno infrascript ' Habere feci A. G. plenam seisinam de un ' Messuag ' cum pertin ' in S. infra-specific ' in omnibus prout istud breve exigit requirit Note The Sheriff in Cases where Land is revered is to put the party in possession and seisin by a Twig Clod c. of an House by the Key c. of Rent by Corn or Grass growing on the Land out of which the Rent Issues 6. Rep 52. It is no good Retorn that another is Tenant of the Land by right or that he has nothing in the Land Seisin of the Land in one Vill in the name of all the Lands in 3 Vills is good Retorn of Habere fac possessionem VVirtute istius brevis mihi direct 24 die Maij Annot. infrascript habere feci infra nominat H. H. possessionem termini sui infrascript de tâ—nâ—mâ—ntis infrascript cum pertin prout interius mihi praecipitur Dalt c. 63. Infra nominat R. B. Miles nulla habet bona soâ—â— catalla terrat aut tenementa in balliva mea unde denar infraspec Fieri facere possum prout Interius mihi praecipiter Of Supersedeas If the Roll be marked for a Writ of Error What
Writing they may after make it more formal but cannot alter it in substance for it is a compleat Verdict by delivery of it to the Sheriff 2 Roll. Abridgm 712. D'albie's Case Elegit recites the Judgment quod Elegit executionem Elegit vitious upon Omission of the moiety of the Goods and of the Lands and the Writ was Ideo tibi praecipimus quod bona catalla of the Defendants quae habuit die judicii praedicti redditi deliberari fac ' omitting these words medietatem terrarum tenementorum praedict ' tenend ' the said Goods and moiety of the Lands Quousque debitum levetur by virtue whereof the Sheriff delivered the Moiety in Execution Per. Cur ' This shall not be amended and he ought to Amendment have a new Elegit because the Inquisition was taken without Warrant the Sheriff New Elegit having no Warrant to extend those Lands Cro. Car. 162. Walsall and Riches Two Inquisitions taken at several days by Two Inquisitions no one Stat. Merchant several Juries upon one Statute-Merchant were adjudged naught one was taken of the Land and the other for the Lands and Goods 1 Brownl 38. Lessee had a Lease of the value of 100 l. and The Sheriff not to deliver the Lease at another value than the Jury find it after the Teste of the Elegit and before the Sheriff had executed the Elegit assigns his Term to one who assigns it over to the Plaintiff in the Scire fac ' and afterwards the Sheriff executes the Elegit and delivers the Lease to the Plaintiff Tenend ' c. for the satisfaction of the Debt which came but to 43 l. 6 s. 8 d. Per Cur. The Sheriff could not deliver the Lease at another value than what the Jury had found it at And the Sale made by the Sheriff is as strong as if Sale by the Sheriff as strong as in open Market it had been made in open Market and all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after 1 Brownlow 38. Connyers and Brandling Upon Elegit there needs no Liberate Aliter upon a Statute March 117. In every Elegit the Sheriff must Retorn and The Sheriff to set the moieties distinctly set out the Moieties distinctly unless they be Tenants in Common and in that case he must Retorn the special Matter 1 Brownl 38. On Inquisition of a Lease which is but a Sale or extent of a Lease and the diversity On the 2d Elegit the Sheriff can only deliver a moiety of the moiety lâ—ft Chattel the Sheriff may sell it as Goods but if he extends it there shall be no other benefit than as of a Common Extent Id. ib. Two persons Recovered severally against one in Debt He who had the first Judgment sued first an Elegit and had the Moiety of the Land delivered in Execution after the other sued the Elegit and the Sheriff prayed the Advice of the Court Per Cur. He shall deliver but the Moiety of that Moiety which he had at the time of the Writ awarded Cro. Eliz. 482. Huitt and Cogan S. H. acknowledged two Judgments in Debt Two Elegits and the wholâ— Land extended by them to A. upon Bond and was bound to F. in a Bond bearing date before the Judgments F. assigns his Debt to the King A. takes out Execution upon his Judgments viz. two Elegits by one he has one Moiety of H's Lands by the other the other Moiety Then Process issued out of the Exchequer for the Debt assigned to the King Per Cur. It was Resolved 1. This Subjects Title is prior to the Kings and the King is bound by the Statute of 33 H. 8. 2. Pasch 13 Jac. B. C. Rot. 121. Crook's Case Adjudged The two Extents are well executed because both Judgments are in one and the same Term and no priority between them Hardr. p. 23. Attorney General versus Andrews Actual possession ought not to be delivered on Actual possession not to be delivered on Elegit only to enable an Ejectment Elegit the Sheriff ought only to deliver Seizure to enable the Plaintiff to maintain an Ejectment and the Tenant may plead on the Ejectment else the Tenant would be turned out unheard and be remediless yet if Actual possession be delivered it is remediless 3 Keb. 243. Jefferson and Dawson In Elegit the Sheriff ought to deliver the The moiety to be delivered by Metes and Bounds Moiety by Metes and Bounds Hutton p. 16. If the Land be first Executed upon a Statute and afterwards an Elegit upon a Judgment obtained before the acknowledging of the Statute come also to the Sheriff the Moiety of the Land extended shall be delivered to the Plaintiff upon the Judgment 1 Brownl 38. Freeman's Case The Retorn how to be made Vid. tit What Writs need not be retorned 4 Rep. 65. If a man sue an Elegit upon a Recovery and Ca. sa after an Elegit the Sheriff Retorn That he made partition of the Lands of the Defendant by 12 Jurors but he could not deliver the Moiety to the parties according to the Writ because all the Land was extended to another upon a Statute He may after have a Ca. sa for this Retorn is all one with a Nihil Retorned Mich. 31 32 El. Palmer and Knowles If one pray an Elegit and this entred on Record in Banco and takes out the Writ and before the Retorn of it the Record is removed into the Kings-Bench where the Judgment is affirmed within the year and after it is affirmed to the Court that the Sheriff had Retorned his Writ in Banco yet the Plaintiff may have a Capias for that this Allegation doth not appear to the Court and now its impossible it can be Retorned here and so its stronger than if a Nihil had been Retorned trin 15 Jac. B. R. Andrews and Cope Upon Elegit the Sheriff ought to Retorn the Extent and also that he hath delivered the Lands Elegit need not to be Retorned Therefore if the Sheriff by force of an Elegit delivers to the party the Moiety of the Lands of the Defendant and does not Retorn the Writ if now the Plaintiff will bring Action of Debt de novo the Defendant may plead in Bar the Execution aforesaid tho' the Writ of Execution was not Retorned Earl of Leicester's Case 1 Leon. p. 280. Penruddock and Newman The Sheriff Retorns upon Elegit That the Extent by the Bayliff of a Liberty party had not any Lands but only within the Liberty of St. Edmondsbury and that J. S. Bayliff there hath the Execution and Retorn of all Writs who enquired and retorned an Extent by Inquisition and that the Bayliff delivered the Moiety to the party and the Plaintiff by virtue of that Extent entred Per Cur. 1. The Bayliff may make such Inquisition by Warrant from the Sheriff 2. When a Jury by
may break his House to take him for the Writ is for his person 1 Rol. Rep. 339. Briggs's Case If the Party Defendant be Attached or Distrained by Process out of any Court of Record or County by force of a Justicies c. Hundred Court or any Court Baron and make default the Goods or Issues are forfeited and upon the Attachment the Sheriff or other Officer may take the Goods with them * On Attachment the Sheriffs ought to Retorn the certainty of the Goods and why and the value And this is the Reason that upon the Attachment the Sheriff or other Officer ought to Retorn the certainty of the Goods and the value and it is not sufficient to Retorn that he hath Attached or Distrained the Defendant by Goods to such a value and so upon the Distress the Issues must be retorned in certain because they are upon default to be forfeited vide supra tit original Process 3 Inst. 228. The Sheriff is to bring an Attachment upon the Writ of ne exeat regnum until he finds Sureties 1 Rol. Rep. 313. Where and in what Cases the Sheriff is to be Amerced The Sheriff is to be amerced for the faults of For the faults of his Special Bayliffs his Special Bayliffs for the Sheriff is the Officer to the Court and not they But if the Sheriff Retorn quod mandavit ballivo c. qui respondit c. if the Retorn is sufficient and a default is for not doing according to the Retorn the Bayliff shall be amerceed and not the Sheriff As if the Where the Bayliff shall be amerced and not the Sheriff Sheriff Retorn quod mandavit ballivo Libertatis c. qui respondit qd ' cepit J. S. according to the Writ and he shall be here at the day if he bring him not at the day the Bayliff shall be amerced and not the Sheriff But if the Chamberlain of the County Palatin of Chester makes an insufficient Retorn to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because he is the Officer responsible to the Court. Now in Palmer and Marshes Case 1 Brownl 36. If the Sheriff Retorn quod mandavit ballivo Libertatis qui sic respondit and retorn an insufficient Retorn in Law the Sheriff shall be amerced for he might have retorned ballivus nullum responsum dedit * Amerced for the insufficient Retorn of the Bayliff of a Liberty If the Sheriff Retorn feci retornum istius brevis G. L. ballivis Libertatis G. qui habent retornum brevium Executionem eorundem qui mihi reâ—â—onderunt qd ' istud mandatum adeo tarde receperunâ— per manus Attornat ' sequentis qd ' nihil inde facere potuerunt the Sheriff shall be amerced for this Retorn for he ought to have Retorned it to the Bayliff time enough for them to serve it Trin. 39 El. B. R. Palmer and Marsh 1 Ed. 1. 13. b. If no Retorn be made for part by a Bayliff of a Liberty the Sheriff shall be amerced As in a Praecipe qd ' reddat if at the grand Cape the Sheriff Retorn quod mandavit J. Bayliff of a Franchise c. who retorned that he had taken the Land into the Kings hands and speaks nothing that he had summoned the Tenant as the Writ commands him the Sheriff in this case shall be amerced for that no Retorn is made of part 4 H. 6. 25. b. By the Stat. of 27. H. 8. 24. Amerciaments for insufficient Retorns of Writs made by Baliffs of Liberties shall be set upon the Heads of such Bayliffs and not upon the Sheriff nor upon the Lord of the Franchise If the Sheriff be amerced by the Court for the Increase of Amerciaments not doing a thing belonging to his Office and yet he continues to neglect to do it contrary to the Rule of the Court the Court may increase the Amerciaments till he do his Duty therein But Amerciaments set upon the Sheriff upon the Amerciament estreated with a Respectuat motion of the Party if they be not Estreated into the Exchequer may be with a Respectuat ' that is be respited if the Party grieved who caused him to be amerced will consent thereunto otherwise not Pract. Reg. p. 18. If upon a Latitat the Sheriff do Retorn a Cepi Amerciament for not Retorn Corpus and the Party arrested on this Process doth not appear at the day of the Retorn the Sheriff may be amerced by the Court yet tho' the Sheriff be amerced if the Party arrested do appear within a week after the day he ought to have appeared the Amerciament may be taken of the Sheriff Pract. Reg. 18. If a Debt be levied by Fieri fac ' and delivered to the Plaintiff and the Writ is not retorned yet the Execution and Sale is good but the Sheriff shall be amerced for the Non-retorn of the Writ 5 Rep. Hoes Case It was moved to have the Sheriff amerced for Not for retorning too small Issues retorning too small Issues Coke said we cannot do so for saith he it doth not lie in our Conisance whether they are too small or not but you are put to your Amerciament 1 Roll. Rep. 339. Goates's Case A Bishop shall be amerced for an Escape 100 l. Amerciaments for Escape of persons convict a Gaoler shall be amerced for a negligent Escape of a Person Attaint 100 l. and if one convict 5 l. 2 Inst 28. An Exigent which was delivered of Record to the Sheriff was imbesilled and the Copy thereof was retorned by the Sheriff and he was amerced for the Retorn of the Copy at 30 l. and for imbesilling the Exigent at 20 l. 5 H. 4. 5. CHAP. XXVI Remedy against Sheriffs Bayliffs c. for Male-feasance As imbesilling an Exigent for entring into a Corporation which had Retorna Brevium For not delivering a Supersedeas to the new Sheriff For concealing or substracting a Writ For refusing sufficient Bail and forcing to find extraordinary Bail For taking sufficient Bail For not bringing Money levied by Fieri fac ' into Court. And Stat. of Limitations pleaded Remedy against Sheriffs Bayliffs c. IF the Sheriff in his Court quash an Essoyn Erroneously For quashing an Essoyn without the consent of the Suitors Action on the Case lies against him for the Party cannot have his false Judgment on this 26 Assize 45. If a Distring as Issues to the Sheriff to Distrain the Defendant in the Action by all his Lands and Chattels c. and the Sheriff Retorns trop petit Retorns Trop petit Issues Issues too small Issues altho' an Averment lies by the Stat. W. 2. c. 43. Yet the Plaintiff may well have his Action on the Case against the Sheriff because it appeareth by the words of the Statute that this is a false Retorn and the words are qd ' Distringeret by all his Lands and Chattels Ita qd '
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
of the Term to the use of the Grantor himself is not void per Stat. 1 H. 7. for this Grant is not to avoid Creditors For the Term being in right of the Wife as Administratrix and if it had so continued in the hands of W. and had never been granted this was not extendible for the Debt of W. and if W. had it as Executor himself it was not extendible for his proper Debt and Fraud shall not be intended except expresly Fraud not to be intended found therefore the Sale is good Cro. El. 291. Ridler and Punter W. had Execution out of the Kings-Bench by Officer first sells on one Judgment and delivers upon another pretending the first Judgment was fraudulent The Sale shall bind the King Scire facias of a Term which was sold by the Bayliff of a Liberty After upon another Judgment the Bayliff delivers this Term to another pretending that the first Judgment and Execution was fraudulent But per Cur ' it is not well done for he is not a Judge of Fraud and the Court will not allow such pretence to Sheriffs and Officers Latch p. 53. Warrington's Case If the Sheriff extend or sell a Lease this Sale shall bind the King as to his Debt because it is but a Chattel and there was no Covin 8 Rep. 171. Sir Gerrard Fleetwood Upon an Execution against the Husband for Sell the Wises Term for the Debt of the Baron his Debt the Sheriff may sell the Wives Term during her Life Co. Lit. 351. a. The Form of a Retorn of Fieri feci on a Fieri facias Vide Dalt c. 61. Whether a Fieri fac ' upon a Judgment in the Kings-Bench shall go into Wales Plaintiff recovers a Debt against the Testator in B. R. the Action was laid in London and after the Death of the Testator the Plaintiff after Judgment in Scire fac ' sues a Fieri fac ' at London upon which the Sheriff retorns nulla bona by which he sues a Testatum fieri fac ' to the Sheriff of Montgomery in Wales directed to levy the Moneys recovered de bonis Testatoris in manibus Executoris Upon which Writ the Sheriff Retorns this EGo C. L. Baronet ' Vic. infra-mentionat ' Comit ' Montgomery domini Regi humillime Certifico quod infra specificat ' Comitat ' Montgomery est un ' duodecim Comitat ' infra Principalitat ' sive Dominium dicti Dom ' Regis Walliae ubi Breve Domini Regis ipsum regem minime tangen ' non currit quodque non patet per istud breve quod idem breve dictum Dom ' regem ullo modo tangat unde advisament ' Curiae dict' Dom ' Regis coram ipso Rege humillime imploro si mandatum istius brevis exequi poterim C. L. Baronet Vic' The Sheriff on this Retorn was amerced Sheriff not to dispute the Jurisdiction of the Court. and that the Plaintiff should have a new Writ For the Sheriff by his Retorn ought not to dispute the Jurisdiction of the Court to which he is a Minister But if the Court erroneously award Process which was not to be awarded the Sheriff ought to obey and execute it but the party grieved may shew this Matter to the Court and pray that they will supersede their Erroneous Process and so have remedy But as to the Question vid. 2 Sand. 194. Draper and Blaney 2 Keb. 657. Draper's Case 715. Elegit lies into Wales and so doth Execution on a Statute Merchant and that breve Dom. Regis non currit in William is intended of Originals not on Judicials 3 Keb. 170. Witrong and Blaney 1 Bulstr 54. Hall and Rotheram Cro. Jac. 484. A Capias on a Fieri fac ' lieth into Wales 2 Keb. 715. It was the Opinion formerly that a Fieri fac ' on Original Judgment in B. R. doth not lye into Chester Vvales c. but as Dyer the Court shall send the Record and Writ thither And in Action of Debt there it may be but it s granted every day into Lancaster VVales c. 2 Keb. 410. The King versus Needham and Bennet A Writ of Execution goes into VVales and 27 H. 8. c. 26. makes this plain for by it VVales and England are annexed PLowd fo 200. Stradling and Morgan CHAP. XVIII How the Sheriff is to demean himself in giving Possession and Seisin upon the VVrits of Habere fac ' possessionem or Seisinam As to the manner of doing or the retorn of a Supersedeas VVhere it shall stay the Sale of Lands or Goods or not VVhat amounts to a Supersedeas VVhere and when a VVrit of Error is a Supersedeas Of Audita Querela IN all Cases where the Execution of a Judgment The Sheriff to make Execution of the thing at his peril in which the Demand is of a thing certain If the Sheriff do this thing he is not any Disseisor But where the Execution is in the generalty without mentioning of any thing in particular there the Sheriff ought to make Execution of the right thing at his own peril Diversity otherwise he shall be a Disseisor for he is bound to take notice of it and he had not any Warrant from the Court to make Execution of any but the right thing As if a man recover in Assize divers Houses and after the Tenant reverseth it in a Writ of Error and a Writ of Execution issues to the Sheriff to put him in possession of the Houses which he had lost by the Judgment altho' the Tertenants are Strangers to the Recovery and for this they ought not to be ousted without Scire facias against them yet if he do Execution by putting them in possession by force of this Writ he shall not be any Disseisor for that he hath the direct Authority of the Court to do it Pasch 15 Jac. Floyd and Bethel So in Judgment for the Casual Ejector for 47 Houses and on Habere facias possessionem the Sheriff turns out these 47 Tenants and 80 other Tenants without any Process or Plea against them Per Cur ' We will not grant any Writ Trespass against the Sheriff for wrong executing Possession to supersede the Execution against the 80 Tenants for if it should be it ought to be quia erronice and there was not any Error in the proceedings against them because there was not any proceedings But they did Advise that every one should bring Trespass against the Sheriff 2 Siderfin 155. If the Sheriff do deliver possession of more Case against the Sheriff for delivering more Acres than are in the Writ Diversity Acres than are in the Writ this makes not the Writ erroneous but in such case Action on the Case lies against the Sheriff for doing it or an Assize against him that hath the possession delivered to him for the Surplusage of the Land But if the Writ of Hab. fac possess to deliver possession to the Plaintiff of Lands recovered
the Inquisition find the seisin and value of the Land the Jury shall extend all the Land and the Bayliff in a Franchise The Sheriff to deliver the moieties and not the Jury and the Sheriff where there is none shall deliver the Moieties and not the Jury Cro. Car. 317. Sparrow and Mattersoch On an Elegit averring no Goods were seised it hath been held no Scire facias lieth but upon a Fieri fac bare seizure is an Execution 2 Keb. 789 821. Smith and Mildmay It was found by Inquisition on Elegit that the Retorn where there are other Lands not to be in severalty Defendant was seised of the Moiety of a Messuage and Lands for Life and other Lands in the Right of his Wife the Sheriff Retorns Quod virtute brevis c. deliberari feci medietatem omnium praemissorum videiicet medietatem medietatis unius messuagiis necnon duo pomar ' necnon unum clausum The Elegit was filed the Retorn is not good the Sheriff ought to have delivered to him the moiety of the moiety of the Lands joyntly so that the Tenant by Elegit may be Tenant in Common of a fourth part with the Joyntenants But by this delivery in Severalty he had in effect but the 8th part for the other Joyntenant may occupy the Land delivered with him in Common if it had been duorum pomariorum it had been good And he cannot have a New Elegit properly but the Plaintiff shall New Elegit make a surmize that the Sheriff malè suggessit in the Execution of the Elegit and then he shall have a New one at his peril Latch Rep. 77. Score and Kendale An Extent upon a Statute-Merchant The Conisor keeps the possession of the House Plaintiff put the Conisee in possession of parcel of an House and Lands and suffered the Conisor to continue in the rest of the House by reason whereof the Conisor kept the possession of the whole and held the Conisee out The Conisee to the intent he might have a full and perfect possession of the Whole caused the Sheriff that he did not Retorn the Writ of Extent on which it is entred on the Roll Quod Vicecomes nihil inde fecit nec misit breve an Alias An Alias extendi fac ' where it may be or not breve extendi facias may well be awarded And the Sheriff cannot Retorn that the Land was formerly extended by the Old Sheriff because by the Entry upon the Roll it appears that no Entry of Retorn on the Roll. Execution was done but if the Entry be not the same is an Execution for the party tho' it be not Retorned 2 Leon. 12. n. 20. Coleshill and Hastings It was said in 1 Keb. 91. That after one Elegit New Elegit without Continuances Retorned they cannot have another Elegit without Continuances But per Cur. the Course is not to make Continuances in the Roll but awards severally And per Cur. if Nihil be Retorned he may have a New Elegit but if an Acre be Retorned he can have no other The Form of the Retorn of an Elegit with Inquisition taken 2 Sand. 244. Sheriff takes Inquisition upon Elegit the Plaintiff may enter immediately before the Retorn of it 1 Rolls Abr. 738. Lister and Bromley Presidents Retorn of Elegit with Inquisition taken on it vid. 2 Sand. 68. The Sheriff Retorns Nihil as to Goods and Chattels on the first Elegit yet on the second Elegit a Lease for years was taken in Execution tho' the Suggestion for the second Writ was of Lands and nothing of Chattels Mo. 341. Hunger and Fry The Form of the Retorn of Elegit Dalt 231 232. Upon Elegit the Sheriff Retorned That he Retorn must be on an Inquisition had delivered to the Plaintiff Goods and Chattels of the Defendants ad valentiam 20 l. per rationabile pretium and shewed what the Goods were in certain and also that he had delivered 20 Acres of Land of the Defendants quae est medietas omnium terrarum per rationabile extentum but Retorned no Inquisition scil per Sacramentum 12. c. Per Cur ' There ought to be Inquisition and the Sheriff himself cannot extend it Dyer 100. Plaintiff declares where the Defendant had In Consideration he would prosecute a New Elegit a Promise to procure the Goods to be sound is not good seised Goods of I. S. by vertue of an Elegit sued by the Plaintiffs and delivered to the Defendant being Deputy Sheriff he in consideration that the Plaintiff at the request of the Defendant would prosecute another Elegit and deliver to the Defendant and Authorize some person to receive the Goods promiseth to procure the Goods to be found by the Inquisition and to deliver the Goods to the Person Autorized Per Cur. the Pâ—â—mise is not lawful the seising of the Goods by the first Elegit was not good for want of an Inquisition And it differs from a Fieri fac so that the Defendant is a Trespassor ab initio and this promise is to make good his Tort and the Sheriff must Retorn a Jury indifferently and this promise engageth him to the contrary and one part of the promise being unlawful makes all Vicious Sir Thomas Jone's Rep. Morris and Chapman Carter Rep. A new Elegit Issued upon Suggestion that the Where shall be a new Elegit party had other Lands in the same County for if it appear that one takes part of the Land upon delivery of the Sheriff and accepts it he cannot after take a new Extent and if he does ' its wholly void for then the Record is ended and the Attornies of both parties are out of Court but if it is found that he came into Court and surmised that the party had other Lands in the same County and prayed a new Elegit he shall have it for this is intended the first day of the Extent Retorned and then it is reason he may wave it and pray a new Extent for he never accepted of the first Mo. 341. Hunger and Fry Cro Eliz. 310. mesme Case After a full and perfect Execution had by Extent and Returned of Record there shall never be any Reextent upon any Eviction but if the Extent be insufficient in Law there may go out a new Extent as Elegit Issued out against G. Esq who at the time of suing the Writ was Baronet it was insufficient since the Stat. 23. H. 8. cap. 5. Co. Lit. 290 c. Of Elegit and the Retorn Vid. Fulwood's Case 4. Rep. Vid. W. 2. c. 17. 2 Inst. 39. Where Execution shall be awarded upon Elegit and how the Sheriff shall demean himself upon it and what Lands shall be delivered and the Retorn If more than a Moiety be delivered upon the Elegit ' its for the whole Siderf p. 91. Berry and Wheeler Of the Sheriffs Extent of a Term vid tit Fi. fac The Sheriff may Extend or sell a
aut in manus dicti dom Regis capi aut seisiri possint Quae quidem manerium terr tenementa praedict cum pertinentiis Ego praefat Vic. die captionis hujus Inquisitionis cepi in manus dict dom Regis per Extent praed In cujus rei testimonium tam ego praefat Vic. quam Jurat praed huic Inquisition sigilla nostra alternatim apposuimus die anno loco supradict ' c. A. B. Armig. Vic. Extent on a Statute-Merchant issued out Retorn against R. the Conisor the Sheriff Retorned That the Conisor was possest of divers Goods and seised of Lands which he delivered to the Conisee and that the Conisee accepted of the Land and because the Sheriff did not Retorn That he had not any other Lands Goods or Chattels It was Adjudged Insufficient and a new Writ awarded tho' some held it was well enough in the Case of a Conisor but not in the Case of a Purchaser 1 Brownl 37. Fletcher and Robinson Note If the Conisor be Retorned dead Execution If the Conisor be dead how Execution to be shall be granted against his Executor without Scire fac ' to have Execution of his Goods so against the Heir and Tertenants of his Lands without a Scire fac ' Quaere 15 H. 7. 16. b. 2 R. 3 8. b. If the Sheriff do not Retorn the Capias or retorn Tardè or that he directed it to a Bayliff of a Franchise he shall be punished and yield Damages to the party grieved according to the Statute of de Mercatoribus W. 2. c. 39. Two Inquisitions taken at several days by several Juries upon one Statute-Merchant were Adjudged naught One was taken of the Lands and the other for the Lands and Goods 1 Brownl 38. If another had these Lands in Execution by Elegit or is in by discent in such Cases the Sheriff shall Retorn the special Matter i. e. in the first Case that he hath extended the Land of the Defendant But he cannot deliver the same to the Plaintiff for that another had the same in Extent before The Sheriff having an Extent upon a Statute may gather the Goods all into one place to be viewed and appraised by the Jurors and he is not a Trespassor Mo. 563. Attorney General vers Crocker As to what Lands c. shall be extended upon Statutes c. it does not properly belong to this Treatise which hath a respect only to the Office of Sheriff Note If Lands delivered in Execution on a Scire fac ' and New Writ of Execution where Statute-Merchant Staple or Recognizance or upon recovery of Debt and Damages are lawfully recovered or evicted out of the possession of the Conisee before his Debt and Damages be satisfied he shall have Scire fac ' c. and upon this a new Writ of Execution or Re-Extent to levy the residue per Stat. 32 H. 8. c. 1. 1 Inst 289 290 5 Rep. 87. Note also It is a Question in 2 Brownl 270. By whom King James Incorporated the Mayor Bayliffs and Burgesses of Berwick and granted to them the Execution and Retorn of all Writs Whether an Extendi facias shall be Executed by them or by the Sheriff of Northumberland Some said Berwick is English which appears by the Act of Parliament which confirms the Letters Patents and also they send Burgesses to Parliament Others said It is a part of Scotland and a Sheriffwick An Obligation there shall not be Tried in England and it is not in the County of Northumberland nor part of it By Siderfin p. 382. our Laws are not current there But yet in Jackson and Crisp's Case Local breach of Covenant at Berwick Tried at Belford in Cumberland 2 Brownl 270. 2 H. 7. 31. 26 H. 23. Retorns on Scire facias Scire facias is a Writ Judicial directed to the Sheriff c. and is usually to warn a man to come and shew Cause to the Court c. why Execution of a Judgment shall not be done But this Writ shall not be granted before the year and day past after Judgment given Conisor in a Recognizance dies Scire fac ' Retorn not agreeing with the Writ goes against his Executors Haeredes terrarum c. Sheriff Retorns That he had no Executor Scire feci W. H. filio haeredi praedict M. le Conisor This Retorn agrees not with the Writ yet it may be good 3 Rep. 15. Sir William Herbert's Case Scire fac ' on a Recognizance in Chancery against C. who was Retorned dead then a second Scire fac ' issued against the Heir of C. and against the Tenants of the Lands of C. which he had tempore Recognitionis vel postea The Sheriff Retorned C. Tertenant and omitted to Retorn any thing against the Heir This a Non-retorn of the Sheriff and not a Mis-retorn and is not aided by any of the Statutes of 32 H. 8. or 18 Eliz. or 21 Jac. of Jeofail The Heir must be summoned as well as Tertenant on a Recognizance It s Error The Tertenant without the Heir ought not to be charged therefore the Heir ought to be summoned for the Heir may have a Release to plead or other Matter to bar the Execution Also if the Heir be within Age the Parol shall demur and the Tertenant shall have advantage thereof And a new Scire fac ' issued ad Informand ' Curiam and the Retorn was That he had not any Lands in his Bailywick that descended to his Heir nor any Heir within his Bailywick and good enough tho' it had been better if he had Retorned who was Heir and that he was warned or that there was not any Heir in the said County Cro. Car. 295. Eyres and Taunton The Writ Commands the Sheriff to give The words of the Writ not answered in the Retorn Notice to the Tenants of the Land in Fee-simple and the Sheriff Retorns not That those which he had Retorned were Tenants of the Land in Fee-simple and so the words of the Writ are not answered 1 Brownlow Rep. 145 146. The Sheriff may Retorn 24 Tertenants of the whole and every Tenant may plead in discharge of himself or he may Retorn That each is Tertenant of so many Acres 2 Keb. 601. Henshaw's Case Scire fac ' to have Execution on a Recognizance The Sheriff Retorns the Conisor dead other Scire fac ' Issues against the Tertenants of the Conisor on which the Sheriff retorns a Scire feci to W. and R. Tenants and further that there was no Heir nor any other Tenants quibus Scire fac ' poterit la forme 1 Keb. 621. 2 Sanders 6. Jefferson and Moreton Scire fac ' against the Heir and Tertenants the Sheriff Retorns no Heir and the Tertenants appear la form 2 Sanders Jefferson's Case Scire fac ' to Tertenants the Sheriff retorns they are Summoned la foâ—me 2 Sanders 6 8 232. Scire fac ' ad audiend ' errores must be
Imprisonment or other Actions against the Under-sheriff Action may be brought against the Under-sheriff in the Exchequer altho' the High-sheriff be Officer of the Court for the Court takes notice of the Under-sheriff also Faux Imprisonment against the Under-sheriff Faux Imprisonment for detaining a Prisoner after a Release made 1 Roll. Abr. 539. Doyley and Jolliff 3 Bulstr. 96 97. Withers and Henly If the Demandant in a Writ of Entry or Not Retorning a Writ of Summons Disseisin deliver a Writ of Summons to the Under-sheriff of the County and after he summons a Tenant upon the Land accordingly and notwithstanding doth not Retorn the Writ Action on the Case may be brought against the Under-sheriff if the Plaintiff will For peradventure the Sheriff had not Notice of it and the Under-sheriff took Fees to execute the Writ and it s said falsò malitiosè for delay of the Plaintiff which is imbezelling it Hill 32 El. B. R. Marsh and Astry Servant of the Bayliff of a Franchise sworn Where the Bayliff of a Franchise is chargable on Deputation to serve Process but of such a sum and he serves Process of a greater sum sans Warrant and after levied the Money and parts with it the Bayliff shall be chargable Hetley p. 12. Latitat issues to the Sheriff of N. who makes his Warrant to the Bayliff of a Liberty to arrest J. S. the Bayliff makes his Warrant to his Deputies The Deputies Arrest him at VV. out of Sir Tho. Jones Rep. p. 215. Olliet and Bissey the Liberty and after bring him into the Liberty and delivered by them to the Gaoler of the Liberty Per Cur ' The Action of Faux Imprisonment lies not against the Gaoler for he had done but what belonged to his Office and is not bound to enquire whether the first Arrest be Tortious or not and if he had been informed of it yet if he had not been privy to the Practice yet he ought to detain the Prisoner being delivered to him by a good Warrant For if such Information had been False the Gaoler had been liable to an Escape and the Prisoner is not without his Remedy for he had a good Action against the Tortfesors and it seem'd to Maynard the Action lyes against the Gaoler because he is as a Servant to the Bayliff of the Liberty But no such thing appeared in the Record and in truth he was a Patent Officer by Grant of the Lord of the Liberty But per Cur ' if it had been so this alters not the Case for the Bayliff had made his Warrant lawful and the sole Offence was in the Bayliffs who execute the said Lawful Warrant illegally If the Under-sheriff make a Retorn amerciable Retorn amerciable there the High-sheriff shall be amerced for the Retorn is made expresly in his Name But if it be a False Retorn whereupon an Action of False Retorn Desceit lies in that case it may be brought against the Under-sheriff Dr. Stud. c. 42. The Sheriff shall answer for the Misdemeanors Misdemeanors of Bayliffs Concealment of a Writ of his Bayliff Ibid. If a Warrant on a Fieri fac ' be directed to an Under-bayliff of a Liberty and he levies the Debt but conceals the Writ nor makes any Certificate of it Action on the Case lies against him for it is a Personal wrong Mich. 12 Jac. B. R. Bell and Catesby Fieri fac ' is to levy the Goods of Dawson and The difference between the mistake of one person for another and the Goods of one for another the Bayliff by virtue thereof took the Goods of Luttrel as the Goods of Dawson Trespass well lies against the High-sheriff For albeit had the Under-sheriff taken another Person he had done wrong and without Warrant and the Action well lies against him yet as to Goods this may be done by colour of the Warrant and the High-sheriff is chargable in Trespass and the Retorn of Nulla bona will not alter the case having no influence on Lutterels Goods By Windham the High-sheriff and Under-sheriff are one Officer And if an Under-sheriff deliver Hab ' fac ' â—possessâ— of White-acre for Black-acre White-acre on Hab ' fac ' possession ' of Black-acre the High-sheriff is chargable alitèr of a Common Servant who is a Trespasser if he takes one mans Goods as anothers for which I sent Also here is no Special Warrant set forth therefore all is the act of the Sheriff and the High sheriff may well bring his Action of Covenant against the Under-sheriff Pasch 20 Car. 2. B. R. Cremer and Humberston If a Bayliff-Errant or Special Bayliff Arrest Action is for Rescous against the Sheriff not against the Bayliff a man upon a Capias ad satisfaciendum and after the Prisoner rescues himself he at whose Suit he was arrested may not have an Action on the Case upon the Escape against the Bayliff but he ought to have it against the Sheriff for the Bayliff is but a Servant to the Sheriff Mich. 32 El. B. R. Atterton and Harwood The Gaoler shall answer for his Servant who Gaoler to to answer for his Servant Bayliff-Errant Dr. Stnd. lib. 2. 127. permits Escapes The False Retorn of the Sheriff shall not make the Bayliff punishable in an Action for he is Bayliff-Errant and a meer Servant As the Bayliff Justifies per Sheriffs Warrant Plaintiff Replies the Sheriff Retorned upon the Writ Tardè Crâ— El. 181. Parks and Mosse Respondeat Superior In all Cases of Escape the Gaoler who has the 9 Rep 98. actual possession of the Gaol shall answer for all Escapes but if he have not sufficient wherewithal to answer Respondeat Superior i. e. He that committed the Custody of the Gaol to him Yet quaere de hoc There is no Process directed to a Gaoler but an Habeas Corpus and the Prisoners are in the Eye of the Law in the Custody of the Sheriff only and when our Books say Actions of Escape lye against Gaolers such absolute Gaolers are intended as Writs are directed to Tho' I conceive an Action lies against the Sheriff or Gaoler at Election and if the Gaoler is not sufficient then against the Sheriff Vid. Hardress p. 29. Wainright and Griffith a Case Argued but not Resolved How the Superior and in what Cases shall answer for the Inferior or not If a man be sent to Prison on a Statute Merchant Dr. Stud. lib. 2 p. 136 by the Mayor before whom the Recognizance was taken and if the Gaoler will not receive him he shall answer for the Debt if he have wherewith if he have not then he shall answer that committed him to the Gaol as appears by the Statute called Statute Merchant 23 H. 6. c. 10. The Superior shall put in such for whom they will answer The Comminalty of London that have the Fee shall answer for the Sheriffs But in such Action against the Superior
Gaol and A. B. rescued him This Retorn was Insufficient because he did not shew at what place A. B. made the Rescue for it shall not be intended the place where the Arrest was Bro. Ret. 97. Vide plus tit Rescous The Teste of a Writ was 2 Martii 11 Eliz. Prox futur ' how to refer The Retorn was In quarta Septimana Quadrigesimae prox ' futur ' The words prox ' futur ' refer to quarta Septimana not to Quadrigesimae Mo◠365. Barton and Lever In Trespass the Sheriff retorned in the Common That the Defendant was attached per c. how to be retorned Bench that the Defendant was attached per catalla ad valentiam de 10 l. It s a void Retorn for he ought to retorn he was attached by one Beast or Chattel certain and name them that so they may be forfeited Cro. El. 13. Lawrence and Nethersole 1 Anders 51. vid. tit Attachment In Outlawry of Murder the Sheriff retorns Retorn in Outlawry Ad Comit ' meum tent ' apud D. en le County de Northumberland and saith not in Comitat ' meo Northumbriae tent ' c. It s Error for one may be Sheriff of Cambridge and Huntingdon and of Surrey and Sussex 2 Rolls Rep. 52. Alder's Case Action of the Case upon Escape of one taken Time viz. by Ca. sa ret ' Paschae 16 Car. 2. on a Judgment entred in Mich. 16 Car. 2. which is repugnant and impossible and this moved in Arrest of Judgment on the retorn of a Writ of Enquiry But the Teste appearing to be Jan. 16 Car. 2. ret ' Crast ' Ascent ' and that Virtute brevis postea ante retorn ' viz. such a day of May 16. which should be 17. Per Cur ' This is a void Retorn Viz. being expositive only 2 Keb. 101. Hanmer and Unit. Where a Retorn shall be void for the Incertainty or Repugnancy or not In a Replevin on the Causam nobis significes In Replevin if the Sheriff retorn That the Beasts cannot be delivered quia visum inde habere non potuit This is not good because he doth not say accessit ad locum for perhaps he could not have the View because he did not go where the Beasts were 2 Ed. 3. 54. b. Outlawry was reversed because the Exigent had Uncertain retorn of the Exigent Prout sibi constare poterit is ill in retorn an uncertain Retorn 2 Rep. Dr. Drury's Case 141. If a Capias comes to the Sheriff to take a man it s no Retorn that he was found within his Bailiwick after the delivery of the Writ prout sibi constare poterit This is not good but he ought to retorn expresly Quod non est inventus 9 H. 6. 57. So in a Fieri fac ' de bonis Testatoris against Executors if the Sheriff retorn that they have not any Goods in balliva sua after the delivery of the Writ prout ei constare poterit This Retorn is not good for he ought to take notice whether they had Goods or not and so retorn it 9 H. 57. b. But in Debt against an Executor who pleads Retorn on Assets plene Administravit and Assets are found upon a Fieri fac ' the Sheriff retorns that he had nothing within the same County it s a good Retorn Bendloes n. 91. Upon Habere fac ' seisinam the Sheriff retorns Uncertain that the party who ought to take the Seisin non prosecutus est breve This is not good for the uncertain Intendment of it and the coming of the Sheriff to have seisin is not properly a prosecution of the Writ Pasch 15 Jac. Floyd Bethill On Entry sur disseisin of two Acres Hab ' fac ' Repugnant seisinam was awarded The Sheriff as to one Acre retorns Habere feci as to the other Tardè the Sheriff shall be amerced for such a Retorn as being contrary and repugnant in it self As in Ca. sa against two the Sheriff retorns as to one Cepi and to the other Tardè he shall be amerced 2 Leon. 175. Vide Rescous What shall be a good Retorn against the Admittance of the party or not Debt against the Heir If the Defendant In Debt against the Heir pleads Nothing descends to him but an House in B. upon which Judgment is given for the Plaintiff sed quia ignoratur of what value the House was a Writ issues to the Sheriff to enquire of the Value and according to that to make Execution and the Sheriff retorns That the Heir sold the House before the Writ came to him This is not a good Retorn Hen. 7 Jac. B. R. Goldson and Bennet If in Action of Debt against Executors the Defendant In Debt against an Executor acknowledgeth the Action on which a Fieri fac ' issues the Sheriff may retorn Nulla bona c. for this stands with the Judgment inasmuch as he confest the Action but not that he had Goods 2 Roll. Abr. 459. Newman and Babington Upon Habere fac ' seisinam upon a Judgment against J. S. it is no good Retorn for the Sheriff to retorn That J. S. had nothing in the Land nor was Tenant 17 Ed. 3. 66. b. The Sheriff on Levari Retorns That he had Sheriff pleads Levied the said sum which was 2000 l. and in Debt he pleads as to 308 l. Nil debet and as to the rest a Release from the Plaintiff the Plaintiff demurrs Now the Plea of Nil debet is ill and the Sheriff is Estopt to plead it for it is contrary to the Retorn But per Cur ' since they have not relyed upon the Estoppel but taken Issue that could give them no advantage Hob. 206. Speake and Richards What shall excuse the Sheriff for his not Retorning and what shall not As for the Sheriffs retorning a Rescous Vide sub tit Rescous The Sheriff retorned a Resistance on Habere Resistance fac ' seisinam and he was amerced 20 Marks because he did not take the Posse Comitatus and an Alias awarded Hill 19 Ed. 2. Execution 147. On Habere fac ' seisinam it s a good Retorn to That none came to take Seisin excuse the Sheriff that he at all times was ready to deliver Seisin and appointed divers times in certain for the party to come to the Land to receive Seisin but none comes for the party to receive it 2 Roll. Abr. 459. Floyd and Bethell So he ought to excuse himself from the time before the day aforesaid otherwise the Retorn is not good for peradventure he was requested before and would not perform it mesme Case It is no good Retorn for the Sheriff to say That he is not paid his Fees That the party will not pay his Fees and therefore that he would not execute the Writ 34. H. 6. Bro. Ret. 10. The very words of the Writ do enjoyn the Sheriff to make retorn of it and if he be
and the Sheriff persues him and breaks open the Doors of his House and takes him again the party shall never take benefit of this his own wrongful escape Two of the under Sheriffs Bayliffs entred into the House the Door being open to take Execution of the Goods and the Plaintiff shuts the Door upon the Bayliffs and imprisoned them for two hours the Sheriff may break open the House to Rescue his Bayliffs Cro. Jac. 555. White and Wiltshire Note the Sheriff was fined for breaking open an House and rushing in with Sword drawn the Door being half open on private Process By the Stat. W. 1. c. 15. the Sheriff may break open an House or Castle to make Replevin when the Goods of another are Conveyed there 5 Rep. Semain's Case If a Bankrupt convey his Goods to his Neighbours House the Serjeant Commissioners may not but the Sheriff may break open the House because he is a sworn Officer of the Kings Goodwins Law against Bankrupts 65. Quer. Upon a Commission of Rebellion out of Chancery the Sheriff may break open the House to apprehend the party therein whether in his own or anothers House Cromp. fo 47. The Sheriff may take the posse Comitat. to do Execution Per Stat. W. 2. c. 39. and he may take it post vel ante querimoniam but he may take it after resistance and not before for sequi debet potentia justitiam non praecedere Co. 2 Inst p. 454. But suppose the Sheriff cannot do Execution Posse Comitat by the posse Comitatus then saith the Book 1 Keb. 99. 117. he ought to acquaint the Deputy Lieutenants of the County and if they assist not he must acquaint the King and Council and yet the Sheriff shall not be amerced if he return he cannot do Execution but in Godbolt 79. upon a resistance of Execution the Council Table refused to meddle in it because the Court of Kings-Bench ought to see their own Judgment executed and a Writ was prayed to the high Sheriff with a special Rule that the high Sheriff should execute it himself which the Court granted and a Tipstaff to fetch the under Sheriff up to return his Writ which is better than an Attachment which is returnable by it self 1 Kel 99. 117. Godbolt 79. Bush and Chamberlaine To what Sheriff of what place or County shall Execution be awarded If Recognizance of Bayl be taken by a Judge of the Common-pleas at Serjeants Inn in London upon an Original brought in London and certifies this into the Court of Common-Pleas and is there enrolled but it appears on Record that it was taken as before a Scire fac ' may be awarded upon this Recognizance to the Sheriff of London where the Capias was for there was the Commencement of it and also the Scire fac ' may Scire Fac. the Sheriff of London or Middlesex on Recognizance of Bail be awarded to the Sheriff of Middlesex where the Recognisance was enrolled 1 Rol. Abridg ' 891. Johns and Lee Andrews and Harbin Poltney and Forebench Feildgate and Gardener contra 5 Mariae by Brook And by all the Prothonotaries then it ought to be brought in London and not in Middleseas But in 13 Car 1. the Prothonotaries certified that it may be brought in London or Middlesex W. 2 c. 18. saith Vic. ei liberet Medietat ' per rationabile extent viz. per inquisition and the Sheriff Serjeant at Mace may execute Elegit is sworn and a Serjeant at Mace is not sworn to take a Jury yet the Stat. extends to every other immediate Officer to any of the Kings Courts of Record and so a Serjeant may execute this and a Fieri Fac ' also and this Stat. couples Elegit with a Fieri Fac ' and limits both to be executed by the Sheriff but in Wast and Redisseisen the Sheriff must do it in person 4 Rep. 65 66. Fullwoods Case If a Man recover Damages in Action of Wast The Writ to levy Damages in Waste to whom to be derected in one County the Writ to levy them shall issue to the Sheriff of the same County where the Action was first brought and not to any other but if the Sheriff retorn he had nothing he shall have execution into any other County where the Recoveror will 29 Ed. 3. 9. b. Having treated of Executions in general as far as relates to Sheriffs I shall now proceed to speak of Executions in particular as to the Sheriffs demeanor about the executing of them and making due Retorns upon them And ' it s a Point very fit for the consideration of all Sheriffs specially There are but 4 mannner of Executions Two by the Common Law and Two by the Stat. Law by Common Law Levari Fi ' Fac ' Executions Stat. Staple St. Merchant Recognizance By Statute Law Capia Elegit Of which I shall treat distinctly limiting my self therein to the duty and Behaviour of Sheriffs And first of the Capias Capias ad Satisfaciend is a judicial Writ and lyes where a man hath recovered in a personal Action any Debt or Damages in the Kings Court directed to the Sheriff to command him to take the Body of the person condemned in Debt and to put him in Prison till satisfaction made Of Capias ad satisfaciend ' against whom and Cap. ad sa for what it lies and the Sheriffs demeanor therein and retorn thereof It lies not against an Earl Duke or Baron or their Wives except in some special cases nor against an Heir or Executor except in false pleading It lyes against such Presons against whom a Lyes not for a recovery of Damages in all Actions Capias doth lye in the commencement of a Suit as Debt Account Action on the Case Trespass Vi Armis Annuity and Covenant but it lies not for a recovery of Damages in a real Action If one be in Execution by Ca. Sa. which is returned no other Execution can be sued against him his Lands and Goods vid. Stat. 21 Jac. 14. A Capias is to have the Body of such an one such a day and the Sheriff brings the Body or retorns the Writ before the day It is good Winch. p. 7. If one be delivered in Execution by the Kings Writ he is presently in Execution and in Custody without Laying hands on him to Arrest him by Cok. C. J. The Sheriff is to be Excused for taking one Sheriff takes one by a false name by a false Name in Execution and if the Judges admit this false Name yet the Judicial Writ ought not to be Examined by the Sheriff Lane Rep. 49 52. Doyly and Jolliff One in Execution may not be discharged by Habeas corpus or Writ of Priviledge and if one taken on Contempt be taken in Execution he shall not be set at Large Siderfin 289. Swallowe's Case Id. p. 90. The Sheriff may execute Process of Execution Execution against one attaint of Felony against one attaint of Felony
and in Custody if he please and if the Felony be pardoned or the Attainder reversed he shall be in Execution Mo. 178 274. Mich. 10 Car. 1. B. R. Chappel's Case If a man recovered Debt against B. and levy Ca. sa after a Fi. fa. part of the Debt by Fieri fac ' which is Retorned yet he may take the Body of B. by a Cap ' ad satisfac ' for the residue 4 Jac. B. R. Carter and Copping Tho' the King's Debtor be in Execution by his Body or his Land yet the Subject may take him in Execution by his Body for the Statute of 25 Ed. 3. 13. is to be intended of Executions of Lands and Goods and not of the Body which is tout à tout Hobart 160. Shirley's Case Of Escape of one in Execution by Ca. sa Vide tit Escape Sheriffs of Bristol took the Plaintiff by a Cap ' ad satisfac ' and detained him in Prison until the party Defendant and now Plaintiff paid the Money to the Sheriff Per Cur ' This was contrary to his Warrant which is Ità quod habeat denarios in Curia and because he did not so he is chargeable to him that was in Execution Hetley 122. Read and Earlfield A Capias ad satisfac ' was Retornable Quind Retorn ' Mart. and that Writ was Retorned Album breve and a Testatum thereupon and the Defendant taken by it The Testatum issued out accordingly because the Capias was not Retorned And the Court granted a Supersedeas 1 Brownl 40. Supersed ' Reyner and Mortimer Debt on Judgment in B. R. the Defendant One in Execution on Cap ' ad satisfac ' ought not to pay the Money to the Gaoler confesseth the Judgment and Execution above an year and not being able to find the Plaintiff he paid the Money to the Marshal Plaintiff Replies he did not absent voluntarily and the Defendant demurrs Judgment pro Querente The Sheriff on Cap ' cannot receive the Money as on Fieri fac ' nor is the party remediless for he may pay his Money into Court 1 Leon. 140. and have an Audita Querela but the Plaintiff were remediless should the Gaoler be Insolvent Dom ' Rex and Javan He on Indictment and Conviction of a Disorderly House was Committed to the Marshal for payment of a Fine but before actual Imprisonment the Fine was paid to the Marshal yet Resolved this is no good payment and the party was forc'd to pay it over again Per Jones It is doubtful whether Voluntary payment to the Sheriff on Fieri fac ' before Execution of his Goods be pleadable in Discharge but that is Adjudged it is so much less on a Cap ' which is ad satisfaciend ' the party in Court and he is Committed quousque satisfaciat parti not the Sheriff 3 Keb. 788. Taylor and Baker Verdict If the Issue be Whether the Sheriff took J. S. and kept him in Prison under his Custody in Execution by force of a Capias ad satisfaciend ' and the Jury found he took him by force of an Alias Cap ' ad satisfaciend ' Although it is not found he kept him in Execution for the Debt and Damages aforesaid according to the Issue yet this is a good Special Verdict For it shall be intended for the Consequence is necessary of that which is found because he cannot take him but he ought to be in Execution Hobart Foster and Jackson's Case Vide 3 Rep. 67. Westby's Case 5 Rep. Blomfield Garner Frost and Drury's Case How Execution upon a Ca. sa shall be sued upon a Judgment against two or more and he shall have but one Execution and the Execution of one is not sufficient but the Sheriff may take the Body of all in Execution Vid. 5 Rep. 86. Blomfield's Case and 11 Rep. Godfrey's Case CHAP. XVII What Goods c. of whom shall be taken in Execution on Fieri facias or not After the Sheriff has seised how he stands in the Eye of the Law either to bring Actions for the Tortious taking them away or to make satisfaction to the party who recovered Remedy against the Sheriff for the Money to the value of the Goods taken in Execution or not and how to be pursued The Sheriffs Office and Demeanor in executing a Fieri facias and of the Venditioni exponas and the Retorn what shall be a good Retorn on the Fieri fac ' or not Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judgment and after Sale of the Sheriffs selling a Term for years taken in Execution and when such Sale shall be good or not Whether a Scire facias shall go into Wales Of Fieri facias I Shall next Treat of Execution by Fieri fac ' which is a Judicial Writ lying for him who hath recovered Debt or Damage directed to the Sheriff Commanding him to levy the same of the Defendant's Goods And it lies within a year and day but after the year there must be Scire fac ' This Writ of Fieri facias is only against the Goods and Chattels of a man viz. Leases for years Corn growing or sown upon the Land or movable Goods as Cattel Corn in the Barn Houshold Goods Money Plate and Apparel Co. 1 Inst 290. 6. What Goods and of whom shall be taken in Execution by Fieri facias or not Goods pawned shall not be taken in Execution Goods pawned for the Debt of him which pawned them during the time they are pawned Kitchin 226. The Sheriff upon a Writ of Execution may Fornace annexed not seise and sell to the party a Fornace annexed to the Freehold for this would be Waste in the Lessee 37 El. B. C. Day and Austin The Goods Ecclesiastical of Clergy-men are Bona Ecclesiastica not to be taken by the Sheriff but by the Bishop upon a Levari fac ' on a Recognizance 2 Inst 472. If one sell any Goods to another depending an Action against him these Goods afterwards shall not be put in Execution for they were lawfully bought if done bonâ fide and valuable Consideration But if a Fieri facias be directed to make Execution of Goods and after the Teste of the Writ and before the Sheriff executes it the party sells his Goods bonâ fide they may nevertheless be taken in Execution aliter now by the Statutes of Frauds and Perjuries Cro. El. 174. Mo. 21. n. 72. If the party dies after the Writ of Execution Goods in the hands of the Executor awarded and before it be served the Sheriff may serve it of the Goods in the hands of the Executor For by the Execution awarded the Goods are bound and the Sheriff needs not take notice of his Death Cro. El. 181. Parker and Mosse 1 Leon. 144 145. mesme Case After the Sheriff has seised the Goods how he stands in the Eye of the Law Either to bring Action for the Tortious taking them away or to make
a Stranger but a delivery of a Term to the party who recovers by way of Extent without any Sale and therefore the Owner shall be restored For the Sheriff is not bound by this Writ to sell the Term as he is in a Fieri fac ' Pasch 16 Car. B. R. Buckhurst and Mayo Quaere For this is a Sale all the Term being delivered to the party according to the value in gross and not annual 1 Roll. Abr. 778. So if Personal Goods were delivered to the party per rationabile pretium extentum upon Reversal of the Judgment he shall be restored to the Goods themselves for the same Reason Lessee for 99 years by his Will devised his Lease in these words viz. I devise my Lease to my Wife during her Life and after her death I will that it go to her Children unpreferred and made his Wife Executrix and dyed The Wife entred and married with J. S. and afterwards for 140 l. Debt recovered against J. S. on a Fieri fac ' the Term was sold by the Sheriff and afterwards the Judgment was reversed by Writ of Error and awarded quod omnia quae amifit ratione judicii restituantur The Wife the Executrix died And per Cur ' These Points were Resolved 1. The Executory Devise of the Lease after the death of his Wife to the Daughter Unpreferred was good 2. That the Sale made by the Sheriff upon the Scire fac ' did not destroy the Executory Devise 3. That sale made of the Term by the Sheriff stood good altho' the Judgment was Reversed and the Plaintiff the Daughter shall be restored to the value of the Term but not to the Term it self and yet the Vendee had an absolute property in the Term during the Life of the Wife Mich. 27 El. B. R. Amner and Lodington 8 Rep. 96. Manning's Case A Judgment in D. being Reversed in B. R. a Writ of Restitution was awarded and to enquire what were the Profits of the Land recovered à tempore judicii videlicet 7 Aug. 19 Jac. And the Inquisition retorned That they amounted to 10 l. Per Cur ' The Writ is ill for it ought not to have been what the profits of the Land amounted unto from the Judgment For the Plaintiff is not to answer the Profits longer than from the time of the Execution sued Then there was a new Writ of Restitution which was What profits of the Land the Plaintiff who recovered had taken colore judicii praedicti which was 2 Aug. 19 Jac. and after the Reversal thereof Cro. Jac. 698. Sympson and Juxon Form of the Retorn J. G. alii infranominat ' nihil habent nec eorum aliquis nihil habet in balliva mea unde restitutio bonorum catall ' infrascript ' infranominat ' W. M. habere facere potui Necnon 24. l. infrascript ' eidem W. M. fieri facere potui prout c. Virtute istius brevis mihi direct ' tali die anno infrascript ' tenement ' infrascript ' cum pertin ' reseisiri infra-nominat ' T. H. plenam possession ' seisinam inde restitui prout interius mihi praecipitur Of the Sheriffs selling a Term for years taken in Execution and when such Sale shall be good and when not For the understanding how the Law is in this Where it shall be in the Election of the Sheriff upon Fi. fac to him directed to sell a Term. or deliver it on Extent Point you must observe a diversity between the sale of a Term on a Fieri fac ' and Extent on an Elegit for the Elegit is Quod per Sacramentum XII proborum c. per rationabile pretium exentum That they Appraise the Goods and Chattels of the Debtor and extend his Lands and therefore if they are not Appraised by the Jurors he cannot sell them as Dyer so 100. and so is 5 Rep. Palmer's Case Execution by Elegit ought to be per Inquisitionem per Stat. W. 2. c. 18. which saith per rationabile pretium which extends to Chattels and per extentum which refers to Lands In Elegit the Goods are to be delivered to the party per rationabile pretium but in Fieri fac ' the Sheriff must sell the Goods 1 Keb. 566. Glasswell and Morgan In Elegit the Term may not be extended Difference between the Extent of a Term on Elegit and Sale by Fi. fa. without shewing the certainty of the Commencement for after the Debt satisfied the party is to have his Term and Remainder But upon Fieri fac ' the Sheriff may sell and his Retorn is general quod fieri feci de bonis catallis 5 Rep. Palmer's Case Now the Sheriff is to be careful in the sale Recital of a Term in the Sale of it of a Term on Elegit if he make particular Recital that there be no mistake But a general Recital is better As In Ejectment it was found by Special Verdict that the Sheriff upon an Elegit impannelled a Jury who found that the Defendant was possessed of a Lease for 100 years which began at Mich. 2 3 of Ph. M. ubi revera as it was found it begun Mich. 3 4 of Ph. M. cujus quidem H. statum interesse terminum in tenementis praedictis praedict Juratores appretiarunt ad 80 l. and the Sheriff sold it to the Lessor of the Plaintiff for 80 l. Now the Inquest found one thing and he sells another as this Case was and the Sale not being warranted by the Inquest is void But had the Inquest found he had been possessed of such Land generally for the Term of divers years to come and they had Appraised it for so much without shewing the certain beginning or determination it had been well enough for they shall not be compelled to find a Certainty not having means to be informed thereof or if the Sheriff sells all such Interest which the Defendant had in the same Term the Sale had been good 5 Rep. Palmer's Case So is Sir G. Sidenham's Case in B. R. The Inquest on a Fieri fac ' found that the Defendant was possessed of such a Term and mistook the Date and the Sheriff sold it the Sale was not good And on the New Fieri fac ' the Court directed that it should be found That he was possest of a Lease for years generally and yet continuing and that he sold it Cro. El. 584. Palmer's Case 4 Rep. 74. mesme Case W. and his Wife possessed of a Term in Baron and Feme right of the Wife as Administratrix to C. W. being indebted granted it to B. to the use of W. and his Wife for their Lives and afterwards to the use of B. himself W. is sued for this Debt and Recovery against him and a Fieri facias being awarded to the Sheriff he for this Debt of W. sold the Term What Term not extendible to the Plaintiff Per Cur ' This Grant
are that the Plaintiff capt fuit virtute brevis nostri judicialis and this word judicialis is not in the Register but only brevis nostri de Capiendo yet adjudged good 1 Leon. 73 Arundell and Morris Audita Querela on escape of the Testators Creditor and recovery against the Marshal Defendant protestando that the Plaintiff escaped after the Defendant recovered against the Marshal and the Plaintiff did not pay the Marshal absque hoc that the Marshal satisfied and paid the Testator This case differs from all others of escape by consent of the Gaoler this being not purely Debt which goes over to Executors but is grounded on a Tort general by the death of the Gaoler the Court concluded that recovery against non payment to the Marshal was no discharge of the Plaintiff in this Audita Querela But Adjornatur to take Issue on payment by the Marshal to the Creditor viz. the Defendants Testator 3 Keb. 763. Gardner and Sedgwick One was Outlawed in Debt and taken upon Outlawry Pleaded to Audita Querela where 't is good or not the Capias and committed to the Fleet and the Warden suffered him to go at Large voluntarily and after the Executor of the Plaintiff in Debt takes him in Execution again upon a new Writ and upon this he brought Audita Querela and shews this matter and Outlawry in the Plaintiff in the Audita Querela was pleaded Per Cur. it is a good Plea because this Writ is not directly to Reverse the Outlawry as Error is but is founded upon a Tort scil upon the Escape and not upon the Record only aliter in Error or Attaind Outlawry is no Plea nor is there any difference as to this Case where the Outlawry is at the Suit of the Defendant or of a Stranger Vid. other good reasons Sider 43. Jason and Kete If upon Elegit the Sheriff takes an Inquisition and there are found several Lands subject to the extent and found of the several values and the Sheriff Retorns he had delivered some of the said Lands in Particular for the Moieties where it appears that according to the values found an equal Moieties is not delivered to the party who recovers but more than a Moiety this is not void neither is it a Disseisin by the Entry but only voydable by an Audita Querela Tr. 15. Car. 1. B. R. Rowe and VVeeks If A. recover against B. Debt or Damages and Elegit is granted to the Sheriff to extend the Moiety of his Land which is ancient Demesns altho it be admitted that this is not extendible yet B. may not avoid this by Entry without Audita Querela because the Sheriff had a Warrant to deliver the Moiety of half his Land and this was his Land Ergo not void Hob. p. Cox and Barnaby CAP. XIX Of Elegits and the Sheriffs Duty therein and of the Retorns thereof The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well executed and what thing may be executed or not Of the Inquisition Retorns of Elegit how to be made Where a new Elegit shall be had or not Of extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the Kings Debt of Stat. Merchant Staple Recognizance The difference of the Retorns Retorns of Scire fac the Sheriffs demeaner as to Outlaries and Capias Utlagatum and the Retorns Of Elegits c. ELegit is a Judicial Writ given by the Stat. The nature of an Elegit as to Lands or goods VV. 2. c. 18. either upon a Recovery for Debt or Damage or upon a Recognizance in any Court. By this Writ the Sheriff shall deliver to the Plaintiff omnia catalla debitoris exceptis bobus afriâ— Carucae medietaten terrarum and this must be done by Inquest taken by the Sheriff for the valuation of the Goods and Lands ought tobe first found by the Inquisition of a Jury VV. 2. c. 18. gives the Elegit so that in Elegit the Sheriff may take in Execution the Moiety of the Lands of the Conizor c. and all his Goods and Chattels except as aforesaid and was to deliver them to the Conisee or he who recovers upon a reasonable extent or price until the Debâ— be satisfied and the Sheriff shall deliver him the Seisin of the Land and he is called Tenant by Elegit and shall do no VVaste 4 Rep. 47. The Elegit as to Goods is in effect but a Fieri fac and therefore if there be no Lands and Execution be upon Goods and they are not sufficient he may have a Capias aliter if Lands be extended If one prays to have Elegit and the Sheriff Retorns he has no Lands and he prayed a Capias but the Court granted it not the cause is the Entry in the Roll is that he hath chosen the Execution of the Moiety of the Lands which he must stand to 30. Ed. 3. But the Law now is not so for if the Sheriff return Nihil the party may have a Capias Hob. 57. Elegit how to be managed by the Sheriff that so it may be well Extended and what things may be executed or not As to what things may be extended or not you must know All the Goods and Chattels in which are included Leases for Years Leases for Years shall be extended except Oxen and Beasts of the Plow the Moiety of the Lands Vid. infra how it shall be done A Rent seck where there is not any Reversion A rent seck cannot be delivered ut liberum Tenementum Cro. Eliz. 656. VValshal and Heath Annuity Certain is extendible by Elegit Cro. Annuity Jac. 78. York and Twine Lands in Ancient Demsne may be delivered Aunc demesne in Execution by the Sheriff by force of an Eelegit out of the Kings Court for the Land it self was never put in plea directly in the Kings Court Vid. the Million Act. 5. Rep. Aldens Case Hob. 47. Cox and Barneby If the Lands descend to an Infant the Sheriff shall cease to extend As to the Inquisition Note If the Inquisition in Elegit be void in Inquisition void in any part void in the whole any part its void in the whole and the whole must be quasht and not quoad that only so if more than a Moiety be delivered on the Elegit it is void for the whole 2 Keb. 582. Harris's Case Siderfin p. 91. Berry and Wheeler It was moved in the said Case of Harris to quash an Inquisition of Elegit upon Judgment in B. R. because it appears not in what County the Lands extended were but Monmouth being in the Margent and directed to the Sheriff there and the Retorn made by him it shall be intended in Monmouth 2 Keb. 582. Upon a Writ of Extendi facias upon a Statute The Jury cannot alter a Verdict in substance if the Sheriff Impannel a Jury and they deliver the Verdict to the Sheriff in
Lease and How Delivered this Sale shall bind the King because but a Chattel and no Covin in the case 8. Rep. Sir George Fleetwoods Case Judgment in Debt against a Joynt-tenant for Life who releaseth to the other and dyes The Plaintiff sues Elegit Per. Cur. the release being his own act shall not discharge his Moiety of the Execution for by the Acceptance of the Release he has deprived himself of the jus accrescendi 7. Rep. 78. Lord Aburgavennies Case A Rent seck where there is not any Redisseisin What shall be delivered cannot be delivered ut liberum tenementum Cro. Eliz. p. 656. Walsal and Heath Annuity certain is extendiable by Elegit Cro. Jac. 78. Yorke and Twine Where the Sheriff extends a Manner by the name of Acres Land Meadow Wood no Advowson passeth Owen's Rep. p. 4. Brag and Brook In Elegit the Sheriff ought to deliver the Moiety by Metes and Bounds Hutton p. 16. Upon recovery in C. B. against G. The Plaintiff prays Elegit to the Sheriff of London where the Action was brought and to the Sheriff of Lancaster as the course is by Sci. fac directed to the Chancellor of the County Palatine and this Elegit appears to be grounded upon a Testatum first made by the Sheriff of London that G. had nothing in London ubi revera they never made such Retorn and upon this the Sheriff Retorned that he took a Lease of Tythes which the Sheriff delivered to the Plaintiff as the Goods and Chattels of G. for the Debt and that G. had not plura bona c. Per Cur. no Retorn â—eing made by the Sheriff of London and it appearing that no Testatum was ever awarded it is Error for the Plaintiff in B. C. might have taken his Elegit immediately into London and into Lancaster Elegit into London and Lancaster or any other Counties yet he hath waved this benefit and grounds his Execution upon a Testatum which is false and now G. shall be restored to his Term again for the Sale and delivery of the Lease to the party himself on an Elegit is no Sale On Sale of a Term where the Term shall be restored or not by force of the Writ and it is in Law but a bare delivery in specie and upon reversal shall be restored in specie and doth not alter the property absolutely but attends the goodness or illness of the Execution But if the Sale had been to a stranger for 100 l. tho the value had been 1000l yet upon reversal he shall not have the Term but the Mony for it is the folly of the party that he did not pay the Judgment So on Sale by Fi. fac the Term shall never be restored vid. supra Cro. Jac. 246. Yel p. 179. Goodyear and Ince Yel 180. Vid. where there shall be a Re-extent or no. If no Retorn be upon Elegit the party after the Year and Day shall have a Sci. fac and after this a new Elegit Mo. p 24. n. 83. The Sheriffs Office about Execution for the Kings Debt After the Stat. 33. H. 8 c. 39. was made for levying of the Kings Debt the usual Process to the Sheriff at this day is QUOd diligenter per Sacrament proborum legalium hominum de balliva tua inquiras c. quae cujusmodi bona catalla cujusmodi pretii idem debitor habuit in dicta balliva tua c. Et ea omnia capias in manus nostras ad valentiam debiti praed inde Fi. Fac. debitum praed c. Et si forte bona catalla praedicti debitoris ad solucion debiti praedict non sufficerent tunc non omittas propter aliquam Libertatem quin eam ingrediaris per sacrament ' praed proborum c. diligent inquiras quas terras quae tenementa cujusmodi Annui valoris idem debitor habuit seu seisitus fuit in dicta balliva tua c. Et ea omnia singula in quorum manibus jam existunt extend fac in manus nostras capias c. Et capias praed debitorem ita quod habeas corpus praed debitoris ad satisfac nobis de debito praed Whereby it appears that if the Goods and Chattels of the Kings Debtor be sufficient and so can be made to appear to the Sheriff whereupon he may levy the Kings Debt then ought not the Sheriff to extend the Lands of the Debtor or his Heir or of any Purchaser or Ter-tenant If one extends a Statute Staple at the Suit of The King to be preferred A. the Sheriff extends the Lands and takes the Goods and seiseth them into the hands of the King but does not make Livery and and after a Writ of Prerogative of the King issues out of the Exchequer and commands the Sheriff to levy the Kings Debt of B. viz. 100 l. of the Goods of the Debtor and if he had not sufficient then to Extend his Lands and this is delivered to the Sheriff after the first Writ of Extent but that was not Retorned The Sheriff in this Case ought to execute the Extent for the King's Debt because the property of the Goods and Lands were not in A. before they were delivered to him by a Writ of Liberate and the Goods being seised into the hands of the King for the use of the party were priviledged from all other Executions but that of the King only 2 Roll. Ab. 158. Dyer 67. Stringfellow's Case Hob. 339. Where the Officer without any Warrant or Property of the Goods not in the Plaintiff before the Liberate Authority shall levy any Duty for the King and shall after account for the same in the Exchequer or otherwise pay the same to the King's use there the Officer seemeth chargable but as a Trespassor but if he shall convert the same to his own proper use it is Felony If a man be bound in a Statute-Merchant Execution on Stat. Merchant and does not pay the Debt at the day Execution shall be done thereof in this manner the Conisee must come to the Major or other Officer before whom the Statute was acknowledged and pray him to Certifie the same into the Chancery under his Seal c. and if he will not Certifie it then a Writ of Certiorari must be sued forth of Chancery directed to the said Officer to Certifie the acknowledgment of the said Statute into the Petty-Bag Office in Chancery and upon the Certificate a Writ of Execution scilicet First a Capias shall go out to the Sheriff against the Body of the Conisor si Laicus sit but the Debtor after he is taken hath liberty given him within a Quarter of a year to sell his Lands and Goods to discharge his Debts And if he do not agree for his said Debts within the next Quarter or if he cannot be found then all his Lands and Goods upon Extendi facias shall be Appraised by a Jury and
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
Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a Vâ— Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest suâ—mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded
de exitibus eorum c. so that if he do not Retorn all the Issues he does not as he is commanded The Statute ordains that the King shall have the Issues but restrains not any Remedy that the Plaintiff had at Common Law 3 Car. 1. Dorothy Bennet against the Sheriff of London If the Sheriff imbesil an Exigent delivered to For imbesilling an Exigent him at my Suit Action on the Case lies tam pro Dom ' Rege quam pro meipso 41 Assize 12. A Knight for the County brought Action For not levying Expences in Parliament against the Sheriff for not levying 10 l. 4 s. for his expences in attendance in Parliament 17 Ed. 3 B. R. Rot. The Sheriff was punished in the Star-chamber for neglecting to Execute a Capias Utlagat ' after Judgment Hob. 264. Action on the Case lies against a Sheriff for For entring into a Corporation which had retorna brevium entring a Corporation which had Retorna brevium 1 Rol. 118 119. The Town of Darby vers Foxhen J. S. recovered a Debt against Calthrop and procured a Writ of Execution to W. P. Sheriff of D. but before the Writ was executed Calthrop procured a Supersedeas to the said P. who when his time was out delivered all the Writs to the new Sheriff but not this Supersedeas so that J. S. procures a new Writ of Execution to For not delivering a Supersâ—deas to the new Sheriff the new Sheriff upon which 18 of Calthrops Beasts were taken And he brings his Action against P. for not delivering over the Supersedeas By the Prothonotaries the Course is to take a new Writ to the new Sheriff But the Court inclined that the Action lay for the Writ to the old Sheriff is quod comitat ' praed ' una cum brevibus rotulis memorandis omnibus officium illud tangen And an Action will lye for not delivering some Writs to the new Sheriff which is not retorned as Estrepment Mod. Rep. 222. Calthrop and Phillips He at whose Suit the Party arrested Rescues himself and Escapes from a Special Bayliff or Bayliff errant shall have Action against the Sheriff only Vid. tit Under-sheriff Atterton and Harwood Warrant on Fiere fac ' is directed to the Under-sheriff Against undersheriff for concealing a Wâ—it of a Liberty and he levies the Debt but conceals the Writ Action on the Case lies against him M. 12 Jac. B. R. Bell and Satesby If the Sheriffs Deputy substracts a Writ which Against the Sheriffs Deputy for not substracting a Writ Bayliff of Liberty chargable for his Servant is to be retorned Action lies against the Sheriff And yet the Deputy may be punished for this falsity by deceipt 19 H. 6. 71. b. Servant of a Baliff of a Franchise Sworn by Deputation to serve Process but of such a Sum and he serves Process of a greater Sum without Warrant and levies the Money and parts with it the Bayliff shall be chargable Hetley p. 12. Sir John Lenthal his Prisoner having agreed For not discharging a Prisoner without paying Action Money with his Creditors would not discharge him without paying to him Action-Mony By Glyn S. J. there are two Remedies against him Action of false Imprisonment or Indictment for Extortion Fees must be paid and no more Stiles Rep. 454. Welberly and Sir John Lenthall Vid. tit Fees But Bayliff of a Liberty is not chargable for the Gaoler Vid. supra As for what Remedy there is against the Sheriff for refusing sufficient Bail the Law stands thus If a Sheriff or Mayor refuse sufficient Bail For refusing suffient Bail against the Statute of 23 H. 6. c. 10. by which the Penalty of 40 l. is given one Moiety to the King and the other to the Party who will Sue for it In this Case no Action lies by Bill in the Kings Bench against the Sheriff c. Because the Statute of 18 Eliz. is That no person shall Sue any Penal Statute but by information or original Action and not otherwise But Note It is not limited by the Statute of 23 H. 6. c. 10. how the Penalty shall be recovered but generally that he shall forfeit 40 l. one Moiety to the King and the other to him that Sues 3 Inst 194 6 Rep. 17. Gregories's Case 1 Rolls Ab. 537. Whidiston and Clerk Action on the Case doth not lie against a Sheriff For taking insufficient Bail for suffering a Prisoner to go at large upon the taking insufficient Bail vid. supra pasc 2 Jac. C. B. in the Case of the Lady Mounson against the Sheriff of Lincoln for taking insufficient security upon Stat. of 23 H. 6. It was adjudged That the death of one of the Sheriffs did not abate the Writ 2 Sanders 5. Postern and Hanson Hutton p. 120. Metcalf and Hodyson p. 77. Trevor and Michelbourn 1 Keb. 56. Stalford and Bateman Action on the Case lies against the Sheriff Action of the Case against the Sheriff for not bringing Money into Courâ— levied by Scire fac Statute of Limitatitions pleaded for that he levied such a Sum of Money on a Fieri fac ' at the Suit of the Plaintiff and brought not the Money into the Court at the day of the Reâ—orn The Defendant pleaded the Statute of Limitations 21 Jac. It s Ill. An indebitatus Assumpsit would lye against the Sheriff in this Case or against his Executors and then the Statute might be pleaded If the Fieri fac ' had been retorned the Action would have been grounded upon the Record and its the Sheriffs fault that the Writ is not retorned But however Per Cur ' the Judgment in this Court is the Foundation of the Action And so Judgment pro Quer. that is not within the Statute of Limitations Mod. Rep. 24. Action on the Case against a Bayliff for concealing a Scire fac ' after he had levied the Money upon it 1 Roll. Rep. 78. One is Arrested for 600 l. and forced to find extraodinary Bail Action on the Case lies CHAP. XXVII Of the Sheriffs demeanor in Assignment of Dower and the Retorn The Proclamations The Sheriffs Office about Partition His demeanor in the Writ De Ventre inspiciendo About Retorning a Force About a Vi Laica removenda How the Sheriff shall demean himself in a Writ of Enquiry of Waste and of the Retorns thereof Of the Writ of Estrepement and the Retorn The Sheriffs Office in a Writ of De Excommunicato capiendo Retorns of Sheriffs as to Clerks Retorn of a Writ of Entry Retorn of an Assize Quare Impedit De Malefactoribus in parcis Of the Sheriffs demeanour in Assignment of Dower and the Retorn THe Sheriff may not assign Dower against Common Right If the Sheriff assign one Mannor upon Dower recovered of three Mannors it s not good it Mannor ought to be a Third part of each But he may Assign all the Meadow Pasture c. Mo. 12. n. 47. 19. n. 66.