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
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
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 '
12 Ed. 4. 2. contra And if a Woman be dowabâ—e of a Mannor the Sheriff may assign the Third part of the Mannor in Common instead of Dower without setting out by Metes and Bounds so assigned in Chancery Anc. Ent. Qu. Imp. 529. 10. If a Woman be endowed of an Advowson she Advowson shall be assigned the Third part of the Advowson and not only the ' shird part of the profits viz. the Third presentation 17 Ed. 3. 8. b. If a Woman recover Dower of a Rectory Rectory Impropriate Impropriate where there is not any Glebe the Sheriff shall put her in possession of the Third part of the Tythes generally and not of the Tythes of the Land which issue out of any Third part of the Land of the Parish in certain Mich. 9 Jac. B. per Cur. The Writ of Drwer was de Tertia parte Rectoriae de D. and upon that the Grand Cape issued Cape in manus nostr as tertiam partem Rectoriae c. and the Sheriff by Colour of this Writ took the Tythes severed from the Nine parts c. It s an ill Seisure 1 Leon. p. 92. Mitchel and Hide The Sheriff may assign a Rent in lieu of Rent in lieu of Dower Dower 20 Ass 41. 7 H. 6. 34. So a Rent out of the same Land If the Sheriff assign Dower by Writ to him In Partition directed and doth not Retorn the Writ yet she is Lawfully seised of Dower Aliter in a partition by Writ for there a second Judgment ought to be given Cro. El. Ashborough's Case The Retorn of the Sheriff in Assignment of Certainty of the Retorn Dower need not have such precise Certainty as Declarations and Indictments therefore the Retorn was Quod habere fecit seisinam de 13 Messuagiis sive Tenement is cum terris pratis eisdem pertinentibus tune vel nuper in tenura c. it s good enough and when he saith in the end he delivered them all by Metes and Bounds it is sufficient Cro. Jac. 621. Sir Ch. Howard's Case It was moved for amendment of Assignment Amendment of Assignment of Dower of Dower being Under-value and on refusal of an equal division profered to him by the Dowager with liberty to chuse which two parts he would for the Heir Which the Court Ordered and Committed the Sheriff for taking of 60l of the Lady Longvill to execute his Writ of Execution and Information was brought against him 1 Keb. 743. Longvill's Case As to Proclamations in Dower Where the Sheriff Retorned He had proclaimed the Contents of the Writ this was held insufficient for he must Retorn That he made Summons of the Land The Sheriff upon the Statute of 31 Eliz. if he make Proclamation at the most usual Door of the Church tho' part of the Land lye in another Town in the same County its sufficient tho' the words of the Statute are Parishes or Chappels And tho' there be no actual Summons but only the Names of the Summoners its good for that is all the Form at Common Law and the Statute alters not that Hob. p. 133. Allen and Walker The Forms of Retorns as Proclamation at the Church-door the Retorn of a Writ of View the Retorn of a Writ of Seisin in Dower the Retorn of a Writ of Enquiry of Damages in Dower vid. Dalton c. 56. In Dower of Freehold in M. magnâ and M. parvâ the Sheriff retorned pleg ' de prosequendo J. D. J. R. and the Names of the Summoners J. D. and R. F. and after the Summons made and by the space of 14 Days and more before the Retorn of the said Writ at the most usual Church-door of M. magna where part of the Tenements lay on the 27th of Octob. being the Lords-day immediately after Sermon in that Church he publickly proclaimed all and singular things contained in the Writ to be proclaimed according to the form of the Statute in that behalf made and provided L. P. Armig. Vic. Per. Cur. It s sufficient to make Proclamation at Proclamation at any of the Churches where the Lands lye any of the Churches where the Lands lye and he need not do it at all But because he said He had caused to be proclaimed all and singular in that Writ contained and saith not what the Retorn was adjudged Insufficient 1 Browl. 126. Allen and Walter Upon a Retorn of a Writ of Enquiry in Dower Retorn of a Writ of Enquiry in Dower Errors were assigned 1. The Original Writ appears not to be Retorned according to the Statute for the year doth not appear when it was Retorned 2. The Proclamation made by the Sheriff appears not to be where the Land lies 3. The Retorn does not mention that the Proclamation was after the Summons as it ought Hob. Allen's Case 4. It is not said He did make Proclamation on the Land but the words secundum formaâ—â— Statuti extend far Quare For the Certiorari was not well Retorned in B. R. Stiles Rep. p. 67. Tâ—yn and Thyn Note No Error can be Assigned on the Sheriffs act in giving the Seisin and retorning thereof except it is where Damages are to be Enquired for if any of them be ill then the recovery of the Damages being entire its ill for all Cro. Jac. 621. Sir Ch. Howard's Case If Summons be made in some part of the Summons made in some parts of the Land within the Vill is good Land within the Vill its good neither is it necessary to make the Proclamation where the Summons is Stiles Rep. 91. Thyn Presidents Summons Retorn of the Writ of Seisin and Execution upon it in Dower 2 Sand. 45 92. Hesketh and Lee. On Habere fac ' seisinam in a Writ of Dower of the Third part the Sheriff Retorned That he offered to the Demandants the Seisin of the Third part of the Tenements aforesaid by Metes and Bounds in certain according to the Tenor of the Writ and they refused to accept them of him Per Cur. The Entry of the Demandants is now lawful and the Court refused to award Habere fac ' seisinam de novo as a thing never known Dyer 278. A. brought Dower against the Son to be endowed of Lands of which her Husband the Father of the Defendant died seised A Writ issued forth to Enquire of the Damages and he made his Warrant to J. S. to take the Inquest It was the Opinion of the Justices That he cannot in this case make a Deputy because it was a Judicial act and he must do it in person Noy 21. Randal's Case Sheriffs demeanour in the Writ De Ventre Inspiciendo Writ was directed to the Sheriff That he should cause D. c. to be viewed by 12 Knights and searched by 12 Women in the presence of the 12 Knights ad tractandum per ubera ad ventrem inspiciend ' whether she were with Child or not and to Certifie the same into the Common-Bench and if she
made How the Party may Discharge himself of a Devastavit by Plea And the late practise and not by Inquisition CHAP. XV. Of Prisons To whom they belong and the place where to be kept Who may be Keepers of Gaols c. and how Forfeitable Of the Sheriff of Londons Prison and of the Marshalsea Of the Sheriffs Demeanor towards Prisoners Of the Prisoners Misbehaviour What payment of a Debt to a Gaoler shall be good And of those that breake Prison CHAP. XVI Of Executions When one may be said to be in Execution or not and when without Prayer or not To what Sheriff and of what Place or County shall Execution be awarded of a Capias ad satisfaciendum For what and against whom 〈◊〉 lies and the Sheriffs Demeanor therein and Retorns thereupon CHAP. XVII Of Fieri facias What Goods and of whom shall be taken in Execution by Fieri fac ' or not After the Sheriff has seised the Goods how he stands in the Eye of the Law either to bring Actions for the Tortious taking them away from him or to make satisfaction to the party who Recovered What Remedy against the Sheriff for the Money to the value of the Goods taken in Execution or not and how to be pursued The Sheriffs Office and Demeanor in Executing a Fieri facias Of the Sheriffs selling Goods on the Fieri fac ' and of the Venditioni exponas and the Retorn What shall be a good Retorn of the Sheriff on a Fieri facias or not Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judgment and after Sale Of the Sheriffs selling a Term for Years taken in Execution and when such Sale shall be good or not Difference between the extent of a Term on Elegit and sale by Fieri facias Whether a Fieri facias on a Judgment in the Kings Bench shall go into Wales CHAP. XVIII How the Sheriff is to Demean himself in giving Possession and Seisin upon the Writs of Habere fac ' possession ' or Seisinam as to the manner of Executuing and the Retorn Of a Supersedeas Where it shall stay the Sale of Lands or Goods or not What amounts to a Supersedeas Where and when a Writ of Error is a Supersedeas Of Audita Querela CHAP. XIX Of Elegit The Sheriffs Office therein The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well Executed and what things may be Extended or not Of the Inquisition Retorns of Elegit how to be made Where New Elegit shall be had Of Extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the King's Debt Of Statute Merchant Staple Recognizance Liberate The differences of the Retorns Retorns of Scire fac The Sheriffs demeanor as to Outlawries and Capias Utlegatum and the Retorns CHAP. XX. Of Rescous Where and in what Cases Action lies against a Sheriff for a Rescous and what Action Diversity between Mean Process and Execution Where the Sheriff makes himself chargable by his Retorn Where and what Remedy against the Rescouser by Action or Indictment Of Retorns of Rescous what is good or not Of Laying the Action and how to Declare Of Rescous and Pleadings in it The Venue in this Action for a Rescue CHAP. XXI Of Escapes Some Maxims and Diversities premised Escapes as to Mean Process and Execution What shall be or amount to an Escape of a Prisoner out of Execution or not Of Escapes in respect of the Old and New Sheriffs and of the Prisoners being delivered over What thing or act shall excuse an Escape or in what Cases the Sheriff or Gaoler shall not be Answerable for an Escape and of Erroneous Process Excucusing and how far and in what Cases Where the Escape of one shall not be a Discharge of the other or where the other shall have Audita Querela or not Of Actions of Debt or on the Case by the party against the Sheriff for an Escape Who shall have such Action and to whom it shall be said an Escape or not at Election CHAP. XXII Action for Escape by Executors and Administrators where it lies or not Against whom Action of Escape lies Where Execution shall be after Execution on Escape or not and where it shall not be a Discharge of Execution but that he may be retaken again Of laying the Action and manner of Declaration in this Action Where the Sheriff shall have his Actiâ—n against the Prisoner that Escapes and how to Declare against him CHAP. XXIII Of Pleadings by the Sheriff to Actions for Escape What shall be said a sufficient Fresh Pursuit and where upon Fresh Pursuit he may retake the Prisoner or not and where the Prisoner upon his being retaken shall have his Audita Querela or not Fresh Pursuit how to be pleaded Pleading the Statute of Limitations Pleading acknowledgment of Satisfaction on Record by the Plaintiff or Accord with Satisfaction Nultiel Record pleaded and how Escape by Consent of the Plaintiff and by the Sheriffs License Traverse in the Pleadings Supersedeas Protection Priviledge Bar by Voluntary Escape Venue Issue Evidence Special Verdict in Actions for Escapes Of the Escape of Felons CHAP. XXIV What Acts of the Sheriffs Bayliffs c. shall amount to a False Imprisonment or not Pleading by Sheriffs to Actions of Trespass False Imprisonment The Rules of Pleading in such Case Justification by Mean Process as to the Warrant Time Place Quae est ad eadem Transgressio what it refers to Traverse of the Time Place Pleadings and Justification by Execution By Process out of an Inferior Court of Record and how to be pleaded CHAP. XXV Of Attachments against the Sheriff where and in what Cases it lies or not And where against him for a thing done out of his Office Attachment of Money in the Sheriffs hand Of Attachment against others and against the Goods and the Retorn Of Amerciaments Where and in what cases the Sheriff is to be Amerced CHAP. XXVI Remedy against the Sheriffs Bayliffs c. for Male-fesance as imbezelling an Exigent For entring into a Corporation which had Retorna Brevium For not delivering a Supersedeas to the New Sheriff for concealing or substracting a Writ Bayliff of a Liberty chargable for his Servant not for the Gaoler For refusing sufficient Bail and forcing to find extraordinary Bail For taking Insuffient Bail For not bringing Money levied by Fieri fac ' into Court and the Statute of Limitations pleaded CHAP. XXVII Of the Sheriffs Demeanor in Assignment of Dower and the Retorn The Proclamations The Sheriffs Office about Partition His Demeanor in the Writ De Ventre inspiciendo About Retorning a Force About a Vi Laica removenda How the Sheriff shall demean himself in a Writ of Enquiry of Waste and of the Retorns thereof Of the Writ of Estrepement and the Retorn of it The Sheriffs Office in an Excommunicato capiendo CHAP. XXVIII Of the Retorn of Clericus
Others Sheriff and by that means the Prisoner escaped into Neale's House and 180 l. against Neale because he kept out the Sheriff and shut the Door against him and 500 l. against Sir T. B. because he was the means of conveying away the said Prisoner to Lincolns Inn and per Cur ' such Fines assessed in Court by Judgment on Information cannot be afterwards qualified or mitigated The Sheriffs Bayliffs lawfully arrested a man if Assistants to the Sheriff or his Bayliffs the persons which stood by refuse to assist them in case of Opposition they shall be fined Winch. p. 72. Foster's Case Every man is bound by the Common Law to assist not only the Sheriff in his Office for the execution of the Kings Writs according to Law but also his Bayliff that hath the Sheriffs Warrant in that behalf hath the same Authority which his 2 Inst 193. sur Stat. W. 1. c. 17. Fine for Non-resistance Master hath For the Sheriff cannot do all himself and if they do it not being required they shall be sined and imprisoned but in the case of Replevin out of a Castle House c. before the Sheriff useth any Force he ought to demand according to Law the Goods to be delivered so as Replevy may be made thereof for sequi debet potentia mandatum Legis non praecedere Now besides the Warrant of the Common Law the Sheriff has his Letters Patents of Assistance The Sheriffs Letters Patents of Assistance Id. ibid. whereby the King commandeth that all Archbishops Bishops Dukes Earls Barons Knights Freemen and all other of that County be to the Sheriff thereof in omnibus quae ad Officium illud pertinent intendentes auxiliantes respondentes As to the Sheriffs power in breaking up Houses Sheriffs power to break up Houses Moore 66. vid. infra Tit. Execution Only I shall observe on Process for the Good Behaviour the Sheriff may break an House to take the Party as if the Sheriff have a Cap ' against one to find Surties of the Good Behaviour The Sheriff or his Ministers in the Execution May carry Weapons of Justice may carry a Dag or Hand-gun and it s no offence against the Statute Cro. El. 822. Gardne's case 5 Rep. 71. The Sheriff in some Cases shall not be a Disseisor In what Cases the Sheriffs Officers excused from doing wrong 6 Rep. 52. in fine Boswells case for executing the Kings Writ tho' he doth wrong for Officers in such Cases are excused by their Warrant As it was found ex officio that the Church was full of B. who was a stranger to the Quaere Impedit and it appears no that he had better Title yet the Plaintiff ought to have a Writ to the Bishop generally So it is of a Sheriff on Habere fac ' seisinam of Land for it cannot come in Issue between the Demandant and him for he had no day in Court and tho' a third person had Right they are excused by their Warrant If the Sheriff be resisted in executing the Posse Comitatus 3 Inst 161. Kings Writs or Process of Law he may take the Posse Comitatus so he may to suppress Rioters Vid. Supra As for other Judicial Office of the Sheriff as Enquiry of Wast Redissesin c. vide under their proper Titles By the Statute 21 Jac. c. 13. the Life 1 Keb. 176. of the Party absent during whose Life the Defendant had a Lease is to be enquired by the Sheriff Per Sat. 23 Eliz. A Recusant Convict shall 2 Keb. 108. Le Roy Webb after Proclamation at the Assizes or Gaol Delivery render his Body to the Sheriff before the next Assizes But notwithstanding the Dignity and Favour The Sheriff in what things restrained the Law casts on Sheriffs yet in many places they are restained and have limited qualifications which would further contribute to the explicating the nature of the Sheriffs Office The Sheriff of the County is not to be chosen Not to be chosen a Parliament Man Lit. rep 326 Walt. Longs Case a Parliament Man A. 12 Jac. 1. Sir George Selby was made Sheriff of Durham and Elected Knight for Northumberland it was resolved in Parliament that the Election was void Mr. Walter Longs Case was warmly argued he was informed against first That he being made Sheriff of the County of W. and having taken the Oath to be dwelling in his County all the year unless he had Licence of the King had committed Perjury in as much as he was absent out of the County three Months together He said he was Elected Burgess for Bath and by vertue of a Writ of Summons under the Great Seal which he conceived amounted to a License The Statute is 4 H. 4. cap. 5. every Sheriff shall dwell in his proper person in his Bayliffwick for the time that he shall be Officer the words are Demurrant not Abiding The King by Will may Elect one of the House to be Sheriff for this is a Dispensation but it appeared Mr. Long sought to be Elected Parliament Man Quaere how it was resolved in the Star-chamber By the Stat. of 23 H. 6. no Man shall serve the Shall not serve above one year Non obstante 1 H. 7. 7 Rep. 14. Calvins Case 12 Ed. 4. c. 1. King as Sheriff of any County above one year and that notwithstanding any Clause of Non obstante to the contrary that is notwithstanding the King should expresly dispense with that Stat. And yet 't is agreed that against the express purview in the Act the King may by a Special Non obstante dispense with that Act except such as are Inheritable to the Office of Sheriff or other Offices in London Yet they may execute their Office during Mich. and Hillary Term if no Writ of Discharge come Every Sheriff is to be resident in his own person within his County during the time he is Sheriff except he be otherwise Licensed by the King p. 4 H. 4. c. 5. A Sheriff of one County hath no Authority One Sheriff hath no power in another County or Power within another County yet the Sheriff by force of the Kings Writ may carry the Prisoner through several Counties or make fresh persuit into other Counties and the Prisoner shall be said to be in the Custody of the first Sheriff in every County The Sheriff is not to Let his County to Farm Not to Let his County to Farm per Stat. 23 H. 6. c. 10. By the Sheriff's Letting his County to Farm is understood of the proficua Comitatus which was considerable when most Law Suits were transacted in the Counties and in Hundred Courts Fines Issues and Amercements being considerable And in the time of H. 3. the Bayliffwick of one County was Let at 100 l. per annum a great Sum in those days There was a Bond for Rent on a Lease of the Bayliffwcik of the Savoy Now the Stat. 27 H. 8.
not be received But if the Sheriff in such Writs Retorneth That he was there in proper person and this Retorn be received and the Writ filed then the Court cannot Examine it for the Retorn is good and the party can have no Averment against the Retorn nor can have any Error Cro. El. Clay 's Case Hob. p. 13. But all the ordinary Offices of the Sheriff are transferr'd to the Under-sheriff And therefore High-sheriff abridge the Under-sheriffs Power Hob. p. 13. Norton and Sims if a Sheriff will make an Under-sheriff provided that he shall not serve Executions above 20 l. without his special Warrant this Proviso is void For tho' the High-sheriff may chuse not to make an Under-sheriff at all or may make him at Will and so remove him wholly yet he cannot leave him an Under-sheriff and yet abridge his Power no more than the King can in the case of the Sheriff himself Nor can the Under-sheriff restrain himself by Covenant as he being Under-sheriff is liable to execute all Process and he hath power to do all that the Sheriff can Transfer And so was the Case of Boucher and Wiseman In the Indenture between the High-sheriff and Under-sheriff was an Exception That the Under-sheriff shall not intermeddle with the Execution Cro. El. 440 Boucher and Wiseman of any Writ above the Sum of 40 l. And per Cur ' this Exception was repugnant and void Sheriffs Deputy The Under-sheriff ought always to have a Deputy attendant in every of the Courts of Westminster-Hall to receive and execute their Commands and to give account of Businesses which may fall out about the Sheriff Vide supra In case the Plaintiff declares he sued J. S. on Pleading by Deputy his Deputation without Deed. a Latitat directed to the Sheriff of D. and J. S. was arrested and the Defendant pretending to be Deputy to the Sheriff took Bond of him and let him at large The Defendant pleads the Sheriff made him his Deputy to bail all Prisoners bailable in the County and thereupon he took Bond of J. S. and delivered it to the Sheriff c The Plaintiff demurrs because he pleads his Deputation without Deed per Gawdy it is good without Deed for a Deputy doth things only as a Servant and in right of his Master and so may be without Deed Cro. El. Clecock and Dennis In Rescue the Bayliff of a Liberty arrested the Rescue from the Sheriffs Deputy party and delivered him to the Sheriffs Deputy and saith not from the Sheriff yet it s good For in an Action on the Case he shall shew the Truth as it is in rei veritate Cro. Jac. 242. Kent and Ellicot The Deputy shall plead the General Issue as the Officer himself by the Stat. 7 Jac. Mo. p. 894 n. 1141. What Bonds and Covenants between the High-sheriff and Under-sheriff are good Covenant by the Under-sheriff That he will execute any Extent Liberate Elegit or other Execution Hob. p. 13. not above the Sum of 40 l. is void Vide supra Covenants between the High-sheriff some are Where some Covenants are good and where not good and some are void for those that are good the Bond for performance of Covenants shall stand good Aliter upon a Statute as 23 H. 6. c. 10. If the Sheriff will take a Bond for a Point against that Law and also for a due Debt the whole Bond is void Hob. p. 13. Norton and Sims 14 H. 8. c. 5. A Bond made by the Under-sheriff to the Bond for discharge of all Escapes Sheriff for discharge of all Escapes is good For since he transfers his Authority to him its reasonable he should take Security of him to perform 1 Brownl 83. Under-sheriff brought Debt against one of Pleading his Bayliffs on Bond to save harmless in executing Process c. and assigns the Breach That the Bayliff had not executed such his Warrant sent to him upon a Process directed to him out of the Exchequer to levy Issues upon certain Lands Defendant demâ—urrs 1 because the Warrant directed to him was made out of the County 2 It s not alledged that the Mannor of A. where he was by the Warrant to levy the Issues is within the Hundred where the Bayliff had Jurisdiction per Cuâ— ' its a good Exception and the Breach is not shewed to be within the Condition of the Obligation because a Bayliff cannot execute a Precept out of the Hundred where he is Bayliff Stiles p. 18. Slaughter and Day High-sheriff brought Action of Covenant against Escape tho' after the year a breach of Covenant the Under-sheriff and alledgeth he was a Sheriff An. 1658. and that one W. was then taken and suffered to Escape out of his Custody whereupon J. S. recovered against him and therein it was alledged That the Plaintiff 12 Car. 2. suffered him to Escape out of his Custody it s well enough And any Escape tho' after the year would be a breach of Covenant 2 Keb. 352. Cremer and Humberston If any Sheriff take Hire Gift or Bribe of any Sheriff taking Bribes or buying the Place of Under-sheriff c. Under-sheriff Bayliff Keeper of the Gaol c. for his Place or Office he may be indicted sined or imprisoned Art super Chart. c. 13. 2 Inst 566 In Debt on an Obligation to perform Covenants on Oyer it appeared that the Plaintiff was Under-sheriff by purchase and so void per 5 Ed. 6. c. Vide plus infra sub hic Titulo What acts of the Under-sheriff Bayliffs Gaoler c. the High-sheriff shall be answerable for or not or what Actions shall be brought against the Under-sheriff or High-sheriff Upon every default in the Execution of his Neglect or Fraud Latch 187 Laycock's Case Office be it by Neglect or Fraud of the Under-sheriff he shall answer and be amerced in the Exchequer but the Sheriff shall not be imprisoned for the act of the Under-sheriff nor be Indicted Per Stat. 14 Ed. 3. c. 10. the Sheriffs shall have the 14 Ed. 3. c. 10. 4 Rep. 34. Mitton's Case Custody of the Gaols of the Counties and shall put in such Gaolers as they will answer for The Sheriff is an immediate Officer to the Courts of the King and shall answer for Escapes and shall be subject to Amerciaments if he has not the Body ready in Court Sir Richard Dyer's Case Sheriff of Huntington Escape brought against the Under-sheriff and his Under-sheriff in Marsh and Astry's Case The Under-sheriff suffered one to Escape and the Action was brought against the Under-sheriff As if the Clerk in an Office Misenter any thing he himself shall be punished for it and not the Master of the Office because he takes a Fee for it But if a Retorn made by Sheriff to answer for insufficient Retorns the Bayliff be insufficient then the Sheriff himself shall be amerced 1 Leon. p. 146. Marsh and Astry An Action of Faux
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
Defendant be arrested by a Bayliff of a Liberty who hath the Execution and Retorn of Writs then he must retorn his Warrant back to the Sheriff by Rule of Court or Distringas directed to the Sheriff to distrain the Bayliff and so amerce the Bayliff that way Of Retorns in respect of the Old Sheriffs and New Sheriffs Upon the Cap ' the Sheriff retorns languidus Languidus in Prisona in Prisona and a Distress issues to the new Sheriff to make the formerâ— Sheriff to have his Prisoner and the new Sheriff retorns issues on the former Sheriff and an alias Distringas issues What must come in way of Retorn and not by way of surmize against the Sheriff And After one of the Councel would have surmised that the Sheriff against whom the Distress issued was dead But by the Court He shall not have this by way of Surmise but it ought to come in by the Retorn of the Sheriff Dier 25. a. The Retorn of the old Sheriff shall not conclude the new Sheriff On a Fi ' fa ' the Sheriff retorned qd ' cepit bona ad valentiam 10 l. non invenit Emptores whereupon there went out to the new Sheriff a vendition ' exponas who retorned that his Predecessor non cepit bona ideo c. and held good 34. H. 6. VVhere and what VVrits need to be retorned and where and what not Generally all VVrits of Execution except Elegit Ca. sa Habere fac Seisin Possessionem Fieri fac as Cap ' ad satisfaciend ' Habere fac ' seisinam Habere fac ' possessionem Fieri fac ' Liberate c. which are the final Process and after which no Judgment is given nor no further Process and when matters en fait are only to be done as Land to be delivered Seisin had Goods sold c. are good tho' the Writs be not Retorned or Eiled if the Execution be duly made But in case of an Elegit otherwise because the Elegit must be Retorned and why Extent is to be made by Inquisition to the intent that the Court may judge of the sufficiency of it and every Inquisition ought to be of Record Capias in Process must be Retorned 4 Rep. 67. Cap ' in Process must be Retorned Fullwoods Case in other cases the Party is at the end of his Suit otherwise of a Cap ' in Process for the end of the Arrest is that the Defendant shall appear 5 Rep. Hoes Case In a Scire fac ' for Execution it 's a good Bar that the Sheriff levied the Damages by Fi ' fac ' tho' he had not retorned the Writ More 468. Hoes Case The Writ of Retorn ' Habend ' is not retornable Retornâ— haben do 2 Rol. Abr. 434. The Sheriff was ordered to retorn an Hab ' Habere fac ' seisinam fac ' seisinam the Execution is good if he do not retorn it But perhaps a VVrit of Error in Parliament may be brought and if he will not retorn it the Court shall amerce him 1 Rol ' Rep. Godsall and Sir C. Heydon The Writs of Redisseisin and Postdisseisin are Redisseisin Postdisseisin Admeasur ' de pastur ' Dower Vicountiels and not Retornable and the Sheriff shall hold the Plea and give Judgment 2 Inst 82. So the Writs of Admeasurement of Pasture and of Dower and the parties may thereupon plead before the Sheriff in the County But these Pleas may be removed out of the County Court by Pone 2 Inst 369. Where the Sheriff Retorns Cepi corpus paratum Duces tecâ—â—â— habeo and brings him not in then the Writ of Duces tecum shall be awarded to have the Body in Court sub poena 1 Bulstr. 82. Gerton's Case Scire fac ' issues out of Chancery to the Sheriff Security of the Peace The Sheriff not to Retorn separatim of H. and the Justices of Peace to call L. before them to take Security of the Peace L. enters into a Recognizance and the Sheriff Retorns this Matter is not good the Justices should have Retorned too For the Viscount does not meddle with them as Sheriff but by virtue of this Commission only 21 H. 7. 20 21. 2 Rolls Rep. 257. Leonard's Case What shall be a good Retorn or not or how Retorns of Writs are to be made In respect of the persons that make or ought to make the Retorn As Sheriffs Bayliffs of Franchises Sheriffs If a Writ be directed to a place where there Where there are two Sheriffs and one Retorns the Writ are two Sheriffs as London Bristol c. and one of them doth Retorn the Writ its insufficient for it must be Retorned in both their Names tho' one according to Custom may execute it 21 Assize 20. Br. Officer 22. But if a Warrant be directed to two Bayliffs Two Bayliffs of a Franchise of a Franchise to execute a Writ the Retorn of one of the Bayliffs in the Name of both is sufficient Tr. 39 El. Palmer and March If a Writ directed to the Sheriff be executed How the new Sheriff ought to Retoâ—n the Writ executed in the time of the old Sheriff and after a new Sheriff is chosen the new Sheriff ought to Retorn the Writ in this manner scil Recepi hoc breve praedecessori meo directum sic Indorsatum So if upon a Warrant directed to the Bayliff So of a Bayliff of a Franchise of a Franchise to Execute a Writ it be served and after and before the Retorn of it the Bayliff is removed and a new Bayliff chosen the Retorn to the Sheriff shall not be in the Name of the old Bayliff but of the new Bayliff in the manner aforesaid for the old Bayliff is now as a meer Stranger But if a Writ directed to the Sheriff is not How if it be not executed in the old Sheriff Executed by him before he is removed and another chosen and after the Writ is Executed this shall be Retorned generally in the Name of the new Sheriff without any mention of his Predecessor The same Law is of the Bayliff of a Franchise Trin. 39 Eliz. Palmer and Marsh If a Writ be Executed by one Sheriff and before the Retorn of it a new Sheriff is chosen he ought to Retorn the Writ and not the old Sheriff because the new Sheriff is now the Officer of the Court. Maxim None can make the Retorn of a Writ but such a person who at the time of the Retorn remains an Officer to the Court. A Venire was Retorned in this manner Per T. R. Vicecomitem Istud breve cum pannello annexo mihi deliberat ' fuit per Thomam Hanmer Militem nuper Vicecomitem in exitu ab Officio suo Et sic Indorsatur Thomas Hanmer Miles nuper Vicecomes It was assigned for Error in that it appears it was Retorned by one who had no Authority for in saying Nuper Vicecomes excludes him and that
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 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
and the Sheriff persues him and breaks open the Doors of his House and takes him again the party shall never take benefit of this his own wrongful escape Two of the under Sheriffs Bayliffs entred into the House the Door being open to take Execution of the Goods and the Plaintiff shuts the Door upon the Bayliffs and imprisoned them for two hours the Sheriff may break open the House to Rescue his Bayliffs Cro. Jac. 555. White and Wiltshire Note the Sheriff was fined for breaking open an House and rushing in with Sword drawn the Door being half open on private Process By the Stat. W. 1. c. 15. the Sheriff may break open an House or Castle to make Replevin when the Goods of another are Conveyed there 5 Rep. Semain's Case If a Bankrupt convey his Goods to his Neighbours House the Serjeant Commissioners may not but the Sheriff may break open the House because he is a sworn Officer of the Kings Goodwins Law against Bankrupts 65. Quer. Upon a Commission of Rebellion out of Chancery the Sheriff may break open the House to apprehend the party therein whether in his own or anothers House Cromp. fo 47. The Sheriff may take the posse Comitat. to do Execution Per Stat. W. 2. c. 39. and he may take it post vel ante querimoniam but he may take it after resistance and not before for sequi debet potentia justitiam non praecedere Co. 2 Inst p. 454. But suppose the Sheriff cannot do Execution Posse Comitat by the posse Comitatus then saith the Book 1 Keb. 99. 117. he ought to acquaint the Deputy Lieutenants of the County and if they assist not he must acquaint the King and Council and yet the Sheriff shall not be amerced if he return he cannot do Execution but in Godbolt 79. upon a resistance of Execution the Council Table refused to meddle in it because the Court of Kings-Bench ought to see their own Judgment executed and a Writ was prayed to the high Sheriff with a special Rule that the high Sheriff should execute it himself which the Court granted and a Tipstaff to fetch the under Sheriff up to return his Writ which is better than an Attachment which is returnable by it self 1 Kel 99. 117. Godbolt 79. Bush and Chamberlaine To what Sheriff of what place or County shall Execution be awarded If Recognizance of Bayl be taken by a Judge of the Common-pleas at Serjeants Inn in London upon an Original brought in London and certifies this into the Court of Common-Pleas and is there enrolled but it appears on Record that it was taken as before a Scire fac ' may be awarded upon this Recognizance to the Sheriff of London where the Capias was for there was the Commencement of it and also the Scire fac ' may Scire Fac. the Sheriff of London or Middlesex on Recognizance of Bail be awarded to the Sheriff of Middlesex where the Recognisance was enrolled 1 Rol. Abridg ' 891. Johns and Lee Andrews and Harbin Poltney and Forebench Feildgate and Gardener contra 5 Mariae by Brook And by all the Prothonotaries then it ought to be brought in London and not in Middleseas But in 13 Car 1. the Prothonotaries certified that it may be brought in London or Middlesex W. 2 c. 18. saith Vic. ei liberet Medietat ' per rationabile extent viz. per inquisition and the Sheriff Serjeant at Mace may execute Elegit is sworn and a Serjeant at Mace is not sworn to take a Jury yet the Stat. extends to every other immediate Officer to any of the Kings Courts of Record and so a Serjeant may execute this and a Fieri Fac ' also and this Stat. couples Elegit with a Fieri Fac ' and limits both to be executed by the Sheriff but in Wast and Redisseisen the Sheriff must do it in person 4 Rep. 65 66. Fullwoods Case If a Man recover Damages in Action of Wast The Writ to levy Damages in Waste to whom to be derected in one County the Writ to levy them shall issue to the Sheriff of the same County where the Action was first brought and not to any other but if the Sheriff retorn he had nothing he shall have execution into any other County where the Recoveror will 29 Ed. 3. 9. b. Having treated of Executions in general as far as relates to Sheriffs I shall now proceed to speak of Executions in particular as to the Sheriffs demeanor about the executing of them and making due Retorns upon them And ' it s a Point very fit for the consideration of all Sheriffs specially There are but 4 mannner of Executions Two by the Common Law and Two by the Stat. Law by Common Law Levari Fi ' Fac ' Executions Stat. Staple St. Merchant Recognizance By Statute Law Capia Elegit Of which I shall treat distinctly limiting my self therein to the duty and Behaviour of Sheriffs And first of the Capias Capias ad Satisfaciend is a judicial Writ and lyes where a man hath recovered in a personal Action any Debt or Damages in the Kings Court directed to the Sheriff to command him to take the Body of the person condemned in Debt and to put him in Prison till satisfaction made Of Capias ad satisfaciend ' against whom and Cap. ad sa for what it lies and the Sheriffs demeanor therein and retorn thereof It lies not against an Earl Duke or Baron or their Wives except in some special cases nor against an Heir or Executor except in false pleading It lyes against such Presons against whom a Lyes not for a recovery of Damages in all Actions Capias doth lye in the commencement of a Suit as Debt Account Action on the Case Trespass Vi Armis Annuity and Covenant but it lies not for a recovery of Damages in a real Action If one be in Execution by Ca. Sa. which is returned no other Execution can be sued against him his Lands and Goods vid. Stat. 21 Jac. 14. A Capias is to have the Body of such an one such a day and the Sheriff brings the Body or retorns the Writ before the day It is good Winch. p. 7. If one be delivered in Execution by the Kings Writ he is presently in Execution and in Custody without Laying hands on him to Arrest him by Cok. C. J. The Sheriff is to be Excused for taking one Sheriff takes one by a false name by a false Name in Execution and if the Judges admit this false Name yet the Judicial Writ ought not to be Examined by the Sheriff Lane Rep. 49 52. Doyly and Jolliff One in Execution may not be discharged by Habeas corpus or Writ of Priviledge and if one taken on Contempt be taken in Execution he shall not be set at Large Siderfin 289. Swallowe's Case Id. p. 90. The Sheriff may execute Process of Execution Execution against one attaint of Felony against one attaint of Felony
Ancient Sheriff to expose to sale which does not give to him Authority to sell but compells him to do that which he might do by Law But if upon a Fieri fac ' the Sheriff Retorns that he had seised the Goods but non invenit emptores and But the old Sheriff after removeal may not sell upon non invenit emptores retorned Venditioni exponas after he is removed and a new Sheriff made the old Sheriff may not sell them after tho' a Distringas come to him and if he sell them the sale is not good for the new Sheriff must sell them P. 32. El. Dodd and Conney 2 Latch 117 Dixson's Case A Venditioni exponas may not be awarded if it appear that the Goods are out of the Hands of the Sheriff 2 Sanders 344. Mildmays Case What shall be a good retorn of the Sheriff on a Fieri fac ' or not Note If the Sheriff do make Execution on Where there needs no Retorâ— on Fieri fac ' Fieri fac ' tho' he never retorn the Fieri fac ' yet the Execution is good Aliter in Elegit Vid. infra And if the Sheriff levy the Money and give it the Plaintiff tho' he never make any Retorn to the Court it is good enough 4 Rep. 64. Fullwoods Case and p. 90. Hoes Case The Bayliff of the Savoy levied Goods and yet Retorns nulla bona on Attachment and for causesaith that one V. at the time of the Execution shewed a Bill of Sale on good consideration whereby if he executed he was liable to an Action and therefore without Security to save Security to the Sheriff him harmless he refused to make any other Retorn which the Court agreed and ordered the Money to be brought into Court and as the Trial goes between the Sheriff and V. the retorn to be amended or not 1 Keb. 901. Upon a Fieri fac ' the Sheriff retorneth qd ' nihil habet this is not good without saying further nec habuit post receptionem brevis 39 H. 6. Fitz. Ret. 30. On Recovery of Debt on Fieri fac ' directed to Ret ' quod Clericus est beneficiatus the Sheriff of London he retorned qd ' Clericus est beneficiatus in Ely The Court conceived this retorn improper in regard there should have been a suggestion on the Roll after the retorn made by the Sheriff of London that the Defendant had Goods in Ely and that the Sheriff of that County should have made this Retorn of Clericus beneficiatus Now if the Sheriff of London retorn nulla bona but that he is Clericus beneficiatus in Ely thereupon went a Fieri fac ' to the Bishop of Ely on Testatum and he retorned that he had nulla bona Ecclesiastica this retorn by some is not good but he ought to Retorn a Sequestration having admitted him to be Clericus beneficiatus but he is not estopped to say that he is not Clericus beneficiatus by the Retorn of the Sheriff The Court agreed the Fieri fac ' well directed to the Bishop and not to the Sheriff but they conceived it a good Retorn and if it be false the Plaintiff may have his Action on the Case 1 Keb. 497. 2 Keb. 83. Picard and Payton On a Statute if the Sheriff retorn quod est Clericus beneficiatus nullum habens Laicum feod ' nec bona nec catalla but that he is beneficiatus in such a Diocess then a Writ of Sequestration shall go to the Bishop to Sequester the Profits and to deliver them to the Conisee until he be satisfied 2 Rolls Abridgm 474. Pope and Bautree If there be false Retorn on a Fieri fac ' the Action on the Case on a false Retorn on Fierifaâ— remedy is by Action on the Case In a Fieri fac ' to the Sheriffs of London they Retorn nulla bona but that he is Clericus beneficiatus in Ely upon which a Writ issues to the Bishop of Ely and he retorns nulla bona Ecclesiastica If it be so that he hath a Spiritual living the Plaintiff may have Action on the Case against the Bishop Siderfin p. 276. The Party may aver the value of the Goods greater than the Retorn but the Sheriff is Estop't 2 Keb. 789 821. Retorn of a Fieri facias VIrtute istius brevis Fieri feâ—i de bonis catallis terris tenementis infranominat ' R. B. ad valentiam 200 l. illa de die in diem venditioni exposui iâ—de vendidi ad valentiam 100 l. Quâ—â— quidem centum libras ad diem locum infra Content ' parat ' habeo ad reddend ' infranominâ—t ' J. W. prout interius mihi praecipitur resid ' bonorum catallorum praedict ' adhuc penes me remanenâ— iâ—vendit ' ob defect ' emptorum VIrtute istius brevis cepi bona catalla A. W. infrascript ' ad valentiam omnium denariorum infrascript Et illa venditioni exposui ad quod nondum inveni emptores Et ideo denarios infraspecificat ' habere non possum ad diem locum infracontent ' prout mihi praecipitur Other Forms of Retorns vid. Dalton cap. 61. Of Restitution to Lands or Goods seised by the Sheriff after Reversal of the Judgment in what Cases it shall be and in what not If a man recover Damages and had Execution by Fieri fac ' and upon a Fieri fac ' the Sheriff sells the Term for years to a Stranger and after the Judgment is Reversed he shall only be restored to the Moneys for which the Term was sold which was by default of the party and not to the Term it self because the Sheriff had sold this by Command of the Writ of Fieri fac ' Dyer 363. 8 Rep. 143. Dr. Drury's Case 19. b. Matthew Manning's Case 5 Rep. 90. b. Hoe's Case So if the Goods of a man Outlawed be sold by the Sheriff upon a Cap. Utlagat and after the Outlawry is Reversed by Writ of Error he shall be restored to the Goods themselves because the Sheriff was not compellable to sell these Goods but only to keep them for the use of the King 5 Rep. 90. Hoe's Case But upon Fieri fac ' he shall have Restitution only to the value 1. Else none would buy 2. By Fieri fac ' the Sheriff is compellable to levy the Debt upon the Goods One is compulsio the other voluntas 8 Rep. 143. Dr. Drury's Case If a man recover Damages as suppose in a Writ of Covenant against B. and had Elegit of his Chattels and of the moiety of his Lands and the Sheriff upon this Writ delivers a Lease for years of Land which B. had to the value of 50 l. part of the Sum recovered and after B. Reverseth the Judgment he shall be restored to the Term it self and not to the Value For tho' the Sheriff might have sold the Term upon this Writ yet here is not any Vendition to
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
of the Term to the use of the Grantor himself is not void per Stat. 1 H. 7. for this Grant is not to avoid Creditors For the Term being in right of the Wife as Administratrix and if it had so continued in the hands of W. and had never been granted this was not extendible for the Debt of W. and if W. had it as Executor himself it was not extendible for his proper Debt and Fraud shall not be intended except expresly Fraud not to be intended found therefore the Sale is good Cro. El. 291. Ridler and Punter W. had Execution out of the Kings-Bench by Officer first sells on one Judgment and delivers upon another pretending the first Judgment was fraudulent The Sale shall bind the King Scire facias of a Term which was sold by the Bayliff of a Liberty After upon another Judgment the Bayliff delivers this Term to another pretending that the first Judgment and Execution was fraudulent But per Cur ' it is not well done for he is not a Judge of Fraud and the Court will not allow such pretence to Sheriffs and Officers Latch p. 53. Warrington's Case If the Sheriff extend or sell a Lease this Sale shall bind the King as to his Debt because it is but a Chattel and there was no Covin 8 Rep. 171. Sir Gerrard Fleetwood Upon an Execution against the Husband for Sell the Wises Term for the Debt of the Baron his Debt the Sheriff may sell the Wives Term during her Life Co. Lit. 351. a. The Form of a Retorn of Fieri feci on a Fieri facias Vide Dalt c. 61. Whether a Fieri fac ' upon a Judgment in the Kings-Bench shall go into Wales Plaintiff recovers a Debt against the Testator in B. R. the Action was laid in London and after the Death of the Testator the Plaintiff after Judgment in Scire fac ' sues a Fieri fac ' at London upon which the Sheriff retorns nulla bona by which he sues a Testatum fieri fac ' to the Sheriff of Montgomery in Wales directed to levy the Moneys recovered de bonis Testatoris in manibus Executoris Upon which Writ the Sheriff Retorns this EGo C. L. Baronet ' Vic. infra-mentionat ' Comit ' Montgomery domini Regi humillime Certifico quod infra specificat ' Comitat ' Montgomery est un ' duodecim Comitat ' infra Principalitat ' sive Dominium dicti Dom ' Regis Walliae ubi Breve Domini Regis ipsum regem minime tangen ' non currit quodque non patet per istud breve quod idem breve dictum Dom ' regem ullo modo tangat unde advisament ' Curiae dict' Dom ' Regis coram ipso Rege humillime imploro si mandatum istius brevis exequi poterim C. L. Baronet Vic' The Sheriff on this Retorn was amerced Sheriff not to dispute the Jurisdiction of the Court. and that the Plaintiff should have a new Writ For the Sheriff by his Retorn ought not to dispute the Jurisdiction of the Court to which he is a Minister But if the Court erroneously award Process which was not to be awarded the Sheriff ought to obey and execute it but the party grieved may shew this Matter to the Court and pray that they will supersede their Erroneous Process and so have remedy But as to the Question vid. 2 Sand. 194. Draper and Blaney 2 Keb. 657. Draper's Case 715. Elegit lies into Wales and so doth Execution on a Statute Merchant and that breve Dom. Regis non currit in William is intended of Originals not on Judicials 3 Keb. 170. Witrong and Blaney 1 Bulstr 54. Hall and Rotheram Cro. Jac. 484. A Capias on a Fieri fac ' lieth into Wales 2 Keb. 715. It was the Opinion formerly that a Fieri fac ' on Original Judgment in B. R. doth not lye into Chester Vvales c. but as Dyer the Court shall send the Record and Writ thither And in Action of Debt there it may be but it s granted every day into Lancaster VVales c. 2 Keb. 410. The King versus Needham and Bennet A Writ of Execution goes into VVales and 27 H. 8. c. 26. makes this plain for by it VVales and England are annexed PLowd fo 200. Stradling and Morgan CHAP. XVIII How the Sheriff is to demean himself in giving Possession and Seisin upon the VVrits of Habere fac ' possessionem or Seisinam As to the manner of doing or the retorn of a Supersedeas VVhere it shall stay the Sale of Lands or Goods or not VVhat amounts to a Supersedeas VVhere and when a VVrit of Error is a Supersedeas Of Audita Querela IN all Cases where the Execution of a Judgment The Sheriff to make Execution of the thing at his peril in which the Demand is of a thing certain If the Sheriff do this thing he is not any Disseisor But where the Execution is in the generalty without mentioning of any thing in particular there the Sheriff ought to make Execution of the right thing at his own peril Diversity otherwise he shall be a Disseisor for he is bound to take notice of it and he had not any Warrant from the Court to make Execution of any but the right thing As if a man recover in Assize divers Houses and after the Tenant reverseth it in a Writ of Error and a Writ of Execution issues to the Sheriff to put him in possession of the Houses which he had lost by the Judgment altho' the Tertenants are Strangers to the Recovery and for this they ought not to be ousted without Scire facias against them yet if he do Execution by putting them in possession by force of this Writ he shall not be any Disseisor for that he hath the direct Authority of the Court to do it Pasch 15 Jac. Floyd and Bethel So in Judgment for the Casual Ejector for 47 Houses and on Habere facias possessionem the Sheriff turns out these 47 Tenants and 80 other Tenants without any Process or Plea against them Per Cur ' We will not grant any Writ Trespass against the Sheriff for wrong executing Possession to supersede the Execution against the 80 Tenants for if it should be it ought to be quia erronice and there was not any Error in the proceedings against them because there was not any proceedings But they did Advise that every one should bring Trespass against the Sheriff 2 Siderfin 155. If the Sheriff do deliver possession of more Case against the Sheriff for delivering more Acres than are in the Writ Diversity Acres than are in the Writ this makes not the Writ erroneous but in such case Action on the Case lies against the Sheriff for doing it or an Assize against him that hath the possession delivered to him for the Surplusage of the Land But if the Writ of Hab. fac possess to deliver possession to the Plaintiff of Lands recovered
are that the Plaintiff capt fuit virtute brevis nostri judicialis and this word judicialis is not in the Register but only brevis nostri de Capiendo yet adjudged good 1 Leon. 73 Arundell and Morris Audita Querela on escape of the Testators Creditor and recovery against the Marshal Defendant protestando that the Plaintiff escaped after the Defendant recovered against the Marshal and the Plaintiff did not pay the Marshal absque hoc that the Marshal satisfied and paid the Testator This case differs from all others of escape by consent of the Gaoler this being not purely Debt which goes over to Executors but is grounded on a Tort general by the death of the Gaoler the Court concluded that recovery against non payment to the Marshal was no discharge of the Plaintiff in this Audita Querela But Adjornatur to take Issue on payment by the Marshal to the Creditor viz. the Defendants Testator 3 Keb. 763. Gardner and Sedgwick One was Outlawed in Debt and taken upon Outlawry Pleaded to Audita Querela where 't is good or not the Capias and committed to the Fleet and the Warden suffered him to go at Large voluntarily and after the Executor of the Plaintiff in Debt takes him in Execution again upon a new Writ and upon this he brought Audita Querela and shews this matter and Outlawry in the Plaintiff in the Audita Querela was pleaded Per Cur. it is a good Plea because this Writ is not directly to Reverse the Outlawry as Error is but is founded upon a Tort scil upon the Escape and not upon the Record only aliter in Error or Attaind Outlawry is no Plea nor is there any difference as to this Case where the Outlawry is at the Suit of the Defendant or of a Stranger Vid. other good reasons Sider 43. Jason and Kete If upon Elegit the Sheriff takes an Inquisition and there are found several Lands subject to the extent and found of the several values and the Sheriff Retorns he had delivered some of the said Lands in Particular for the Moieties where it appears that according to the values found an equal Moieties is not delivered to the party who recovers but more than a Moiety this is not void neither is it a Disseisin by the Entry but only voydable by an Audita Querela Tr. 15. Car. 1. B. R. Rowe and VVeeks If A. recover against B. Debt or Damages and Elegit is granted to the Sheriff to extend the Moiety of his Land which is ancient Demesns altho it be admitted that this is not extendible yet B. may not avoid this by Entry without Audita Querela because the Sheriff had a Warrant to deliver the Moiety of half his Land and this was his Land Ergo not void Hob. p. Cox and Barnaby CAP. XIX Of Elegits and the Sheriffs Duty therein and of the Retorns thereof The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well executed and what thing may be executed or not Of the Inquisition Retorns of Elegit how to be made Where a new Elegit shall be had or not Of extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the Kings Debt of Stat. Merchant Staple Recognizance The difference of the Retorns Retorns of Scire fac the Sheriffs demeaner as to Outlaries and Capias Utlagatum and the Retorns Of Elegits c. ELegit is a Judicial Writ given by the Stat. The nature of an Elegit as to Lands or goods VV. 2. c. 18. either upon a Recovery for Debt or Damage or upon a Recognizance in any Court. By this Writ the Sheriff shall deliver to the Plaintiff omnia catalla debitoris exceptis bobus afriâ— Carucae medietaten terrarum and this must be done by Inquest taken by the Sheriff for the valuation of the Goods and Lands ought tobe first found by the Inquisition of a Jury VV. 2. c. 18. gives the Elegit so that in Elegit the Sheriff may take in Execution the Moiety of the Lands of the Conizor c. and all his Goods and Chattels except as aforesaid and was to deliver them to the Conisee or he who recovers upon a reasonable extent or price until the Debâ— be satisfied and the Sheriff shall deliver him the Seisin of the Land and he is called Tenant by Elegit and shall do no VVaste 4 Rep. 47. The Elegit as to Goods is in effect but a Fieri fac and therefore if there be no Lands and Execution be upon Goods and they are not sufficient he may have a Capias aliter if Lands be extended If one prays to have Elegit and the Sheriff Retorns he has no Lands and he prayed a Capias but the Court granted it not the cause is the Entry in the Roll is that he hath chosen the Execution of the Moiety of the Lands which he must stand to 30. Ed. 3. But the Law now is not so for if the Sheriff return Nihil the party may have a Capias Hob. 57. Elegit how to be managed by the Sheriff that so it may be well Extended and what things may be executed or not As to what things may be extended or not you must know All the Goods and Chattels in which are included Leases for Years Leases for Years shall be extended except Oxen and Beasts of the Plow the Moiety of the Lands Vid. infra how it shall be done A Rent seck where there is not any Reversion A rent seck cannot be delivered ut liberum Tenementum Cro. Eliz. 656. VValshal and Heath Annuity Certain is extendible by Elegit Cro. Annuity Jac. 78. York and Twine Lands in Ancient Demsne may be delivered Aunc demesne in Execution by the Sheriff by force of an Eelegit out of the Kings Court for the Land it self was never put in plea directly in the Kings Court Vid. the Million Act. 5. Rep. Aldens Case Hob. 47. Cox and Barneby If the Lands descend to an Infant the Sheriff shall cease to extend As to the Inquisition Note If the Inquisition in Elegit be void in Inquisition void in any part void in the whole any part its void in the whole and the whole must be quasht and not quoad that only so if more than a Moiety be delivered on the Elegit it is void for the whole 2 Keb. 582. Harris's Case Siderfin p. 91. Berry and Wheeler It was moved in the said Case of Harris to quash an Inquisition of Elegit upon Judgment in B. R. because it appears not in what County the Lands extended were but Monmouth being in the Margent and directed to the Sheriff there and the Retorn made by him it shall be intended in Monmouth 2 Keb. 582. Upon a Writ of Extendi facias upon a Statute The Jury cannot alter a Verdict in substance if the Sheriff Impannel a Jury and they deliver the Verdict to the Sheriff in
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
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
were with Child to Certifie how long time in their Judgments quando sit paritura The Sheriff Retorned That she was Twenty weeks gone with Child and that within Twenty weeks fuit paritura Whereupon another Writ issued out of the Common-Bench commanding the Sheriff safely to keep her in such an House and that the Doors should be well guarded and that every day he would cause her to be viewed by some of the Women named in the Writ wherein they were named and that when she should be Delivered some of them should be with her to view her Birth whether it be Male or Female Upon this the Sheriff Retorned He had caused her to be kept c. and that such a day she was Delivered of a Daughter Cro. El. 566. Willoughby's Case But in Theaker's Case the Woman to be Inspected was a Feme Covert to a second Husband and she was with Child by the first they took not the same course but left her with her Husband he entring into Recognizance that she should not remove from the House wherein they inhabited and that one or two of the VVomen Retorned by the Sheriff should see her every day and that two or three of them should be present at her Travail Cro. Jac. 685 686. Theaker's Case The Sheriffs Office about Partition and how he is to demean himself therein At the time of the Partition made the High-sheriff He must be upon the Land in person must be upon the Land in person And if Exception be taken at the Bar before the Writ be retorned and filed a New Writ shall be awarded but if the Sheriff in such case Retorneth That he was there in proper person No Averment against the Retorn filâ—d and this Retorn be received and the Writ filed the party cannot Aver against the Retorn nor shall have Error Cro. El. 9. Clay 's Case In a Writ of Partition if Judgment be given quod partitio fiat and upon this a VVrit is directed to the Sheriff to make partition before that this is Executed and Retorned no VVrit of Error lies upon the first Judgment because before the last Wheâ— Writ of Error lies upon Pâ—rtition or not Judgment which ought to be Qd ' partitio praed ' foret forma stabilis in perpetuum the Plaintiff may be Nonsuited or he may upon the Sheriffs Retorn suggest to the Court That the Partition is not equal and also have a New Partition 1 Rolls Abridgm 750. The Lord Berkley and the Countess of Warwick The Form of the Retorn of a VVrit of Partition vide Dalt c. 68. Sheriffs Office about removing a Force The party grieved may have a Writ supon the Statute of Northampton 2 Ed. 3. cap. 3. directed to the Sheriff to remove the Force and upon this the Sheriff may imprison and justifie in False Imprisonment as was Levett and Farrar's Case and so may the Under-sheriff as that Case was In False Imprisonment against the Sheriff the Defendant Justifies for that a Writ upon the Statute of Northampton was awarded 30 July 32 Eliz. to the Sheriff and Justices of the Peace to remove a Force and that he being Under-sheriff by the Commandment of the Sheriff went to the place and found the Force and because he was not able to remove it he made Proclamation That every one should depart and leave their Weapons c. and afterwards he enquired of the Force and it being found that the Plaintiff was one of them he arrested him and imprisoned him Cro. Eliz. 294. Levett and Farrar Per Cur. The Plea is good And these Points Plea were Adjudged 1. When the Writ is directed to the Sheriff by the name of his Office and not by a particular Name nor doth expresly Command him to do it in person the Under-sheriff may do it Done by the Under-sheriff for its a Writ grounded on the Statute and not a Commission for then it had been otherwise 2. He may Arrest and Imprison at another time upon the Enquiry tho' the Force were removed before his coming and he may Enquire who did it 3. It shall be intended he continued Under-sheriff when in the same Plea it is alledged he was Under-sheriff and the contrary is not shewed 2 Roll. Rep. 178. If when the Sheriff comes to remove a Force if then one hide himself in the Corner of the House to the intent c. this is Force The Sheriffs Office in a Vi Laica removenda In False Imprisonment the Defendant Justifies Justifies in False Imprisonment because a Writ De vi Laica removendâ came to the Sheriff to remove the Force and that the Sheriff came to the House and the Defendant in Assistance of him c. and that there the Plaintiff in domibus praedict ' ad pacem dom ' Regis disturband ' c. eos residentes invenerit Plaintiff demurs 1. The Writ is Si aliquos in ea parte resistentes inveneâ—itis and it is not here pleaded That he found him resisting in eâ— parte i. e. to keep possession But per Cur. the words in eâ— parte ought to be necessarily intended For when he saith He came to the House to remove the Force and the Plaintiff resisted him then sequitur that he resisted him in removing the Force 2. The Writ is aliquos and the Defendant had shewed Resistance by one only But per Cur. aliquos includes aliquem 3. He doth not aver that it was vis Laica armata potestas But per Cur. it appears there was Force and the very Resistance was a Force 2 Roll. Rep. 177. Parson Clossey's Case Upon a Vi Laica removenda if the Sheriff Retorn Non inveni vim Laicam nec armatam potestatem the Lessee shall have Restitution in B. R. Restituâ—ion upon Affidavit that he was kept out with Force Upon this Writ the Sheriff ought not to remove the Incumbent who is in Possession of the Church be it by right or wrong for the Sheriff is only to remove the force and is to suffer the Incumbent to enjoy his Possession More 462. Roberts and Agmondsham How Sheriff is to Demean himself in Proclamations In real Action Vid ' Dower As to Acts of Parliament in former times Proclamations ought to be with Writ to the Sheriff to Proclaim 2 Rolls Rep. 172. Yet if a Statute be not proclaimed the Offences against it are punishable Dr. and Stud. 146. b. How the Sheriff shall Demean himself in a Writ of Inquiry of Wast And of the Sheriffs Retorn thereupon And of the Writ of Estprement In an Action of Wast upon Issue joyned a Jury is Summoned to try the Cause and in the interim to view the place wasted and the Sheriff is to retorn the view As to the President vid. 2 Sanders 254. Grene and Cole The Sheriff must go in person to the place The manner of the view wasted by Stat. W. 2. c. 14. accedat ad Locum vastatum together
Althams's Case Estrepment The VVrit of Estrepment is a Prohibition to do VVast and lies in two Points Where lies 1. VVhen a Man having an Action depending as a Formedon VVrit of Right c. sues to inhibit the Tenant for making VVast during the the Suit and this is either Original and may be sued out of Chancery or Judicial granted out of the Court where the Plea dependeth 2 Inst 328 329. 2. VVhen the Demand is to recover Seisin of the Land in Question and before Execution sued by Habere fac ' Possessionem for fear VVast be made before her Possession he Sues this VVrit And a Man can recover Damages for no more than is contained in his Count. There is likewise when fear is that Wast will be done to prevent it a Prohibition directed to the Sheriff not to permit Wast to be done And the Form vid. 2 Inst 299. The Sheriff may resist the committing of Wast and may Imprison if he cannot otherwise hinder it 3 Bulst 199. And he may take the Posse Comitatus to hinder it Posse comitatus In Wast Estrepment was awarded and upon Affidavit that the Writ of Estrepment was delivered to the Sheriff and that he gave notice to the Party and yet he continues to make Wast Attachment was awarded 1 Brownl 168. Attachment If the Tenants of the Land notwithstanding notice of a Writ of Estrepment directed to the Sheriff commit Wast this is no Contempt and Contempt the Court will not commit them because it was not immediately to them as it might have been Hob. 85. Earl of Cumberland's Case Note If the Sheriff be Plaintiff in the Action of Wast the Writ of Estrepment shall Issue to the Coroners But this Writ of Estrepment is rarely used and in such cases Injunctions out of Chancery are frequently granted It seems Estrepment lies not in a Writ of Error of a Judgment in Partition Siderfin 367. The Sheriffs Office in the Writ de Excommunicato Capiendo The Sheriff needs not bring the Body into the Kings Bench at the day of the Retorn but shall only Retorn the Writ thither with Declaration briefly in what manner he hath served and executed the same 5 El. c. 23. If the Sheriff shall Retorn non est Inventus then a Capias shall be awarded with Proclmation therein commanding the Sheriff in the County Court or at the Assizes or Quarter Sessions to make open Proclamation ten days before the Retorn at least that the Party yeild his Body to Prison in six days And after the six days the Sheriff c. shall make Retorn what he has done thereupon c. the Offender to forfeit 1 ol for such default and so a Capias shall go infinitè with like Proclamation And a forfeiture of 20 l. for every other default to be Estreated presently Sat. 5 El. c. 23. If the Offender yield his Body the Sheriff shall presently commit him to Prison without Bail If the Sheriff make an untrue Retorn that the Party has not yielded his Body on any Proclamation made where indeed he has yielded c. he shall forfeit to the party grieved 40 l. The Writ of Excommunicat ' Capiendo must be taken out of Chancery and recorded in the Kings Bench before it be delivered to the Sheriff 1 Keb. 613. 5 Eliz. c. 23. Lewes versus Stephen son Neither a Vâ— Laica removenda nor Excommunicat ' Capiendo were retornable before the Statatute of 5 El. c. 23. 3 Bulst 92. He that is certified into the Chancery by the Bishop to be Excommunicated and after is taken by Force of the Kings Writ of Excommunicat ' Capiendo is not Bailable by the Sheriff or Gaoler by the Kings Writ But if the Party offered sufficient caution de parendo mandatis Ecclesiae ' in forma Juris then should the Party have the Kings Writ to the Bishop to accept his caution and to cause him to be delivered And if the Bishop will not send to the Sheriff to deliver him then he shall have a Writ out of Chancery to the Sheriff to deliver him Or if he be Excommunicated for a Temperal cause or for a matter whereof the Ecclesiastical Court hath no conusance he shall be delivered by the Kings Writ without any satisfaction 2 Inst 188 189. Retorn of Sheriff as to Clarks VIrtute istius brevis mihi direct ' Justic ' infra script certifico qd ' infra nominat ' T. H. Clericus est beneficiat ' in Episcopatu London nullum habens Laicum feodum in balliva mea ubi potest suâ—mon nec est inventus inead A. B. Armig ' Vic' The Sheriff Retorneth That the Parson ante adventum brevis or post receptionem brevis or before the Retorn of his Writ had resigned his Benefice Et qd ' non habet nec habuit bona neque catalla infra c. It s a good Retorn In Trespass or Debt against a Clark Nihil habet is a good Retorn In Action brought against one wherein a Capias lies Ex gr in account the Sheriff Retorns qd est Clericus Beneficiat nullum habens Laicum feodum in which he may be summoned In this Case the Plaintiff cannot have a Capias to take the Body of the person but he shall have a Writ to the Bishop to cause the person to come and appear But if he had retorned qd ' Clericus est nullum habens Laicum feodum then is a Capias to be granted to the Sheriff because it appeared not by the Retorn that he had any Benefice so as he might be warned by the Bishop his Diocesan and no Man can be exempt from Justice But in the Case of the King where he is party the Sheriff cannot Retorn Clericus Beneficiat ' nullum habens Laicum feodum as on Distress for Issues lost on a Juror 2 Inst 4 627. If a Scire fac ' be brought upon a Recognizance or upon a Judgment in a VVrit of Annuity and the Sheriff Retorn that the Defendant is Clericus Beneficiat ' nullum habens Laicum feodum c. the Plaintiff shall have a VVrit to the Bishop to warn the Defendant and upon warning or two Nihils retorned and default made or if he appeareth and sheweth no matter wherefore Execution should not be granted then a Writ shall be awarded to the Bishop to levy Execution de bonis Ecclesiasticis Retorn of a Writ of Entry The Count was of a third part of a Mesuage and one Stable Petit cape was awarded to the Sheriff and he makes his VVarrant to a Bayliff of a Liberty he Retorns quod cepit in manus Domini Regis the said Mesuage and saith nothing of the Stable And for this cause Judgment was reversed Jones Rep. p. 357. Taite and Heynes In a VVrit of Entry sur Dissesin it was adjudged Error because the Sheriff retorned not the Names of the Summoners or Veyors Cro. Eliz. 557. Merris's Case Retorn of a Writ of Assize The Defendant pleaded