Selected quad for the lemma: peace_n

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peace_n	case_n	justice_n	session_n	2,687	5	10.4872	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A34174	The compleat sheriff wherein is set forth, his office and authority, with directions, how and in what manner to execute the same, according to the common and statute laws of this kingdom, which are now in force and use, and the judgments and resolutions of the judges in divers late cases, in the several courts of Westminster, relating thereunto : likewise of vnder-sheriffs and their deputies, and where the high-sheriff shall be answerable for their defaults, and where not, &c. : together with the learning of bail bonds, with an explication of Stat. 23 H.6. cap. 10 and pleadings thereon : retorns of writs, remedies against non retorn and faux retorn, Habeas corpus, Venires, challenges and enquiry of damages, prisoners and prisons, execution by fieri fac, elegit, &c. : escapes, actions and pleadings therein, fresh pursuit, and other pleas, attachment, americament : actions, declarations and pleadings on the sheriffs nonfesance or male-fesance : customs of London, as to prisons, courts, process, sheriffs fees, extortion, sheriffs accompts, &c, : to which is added The office and duty of coroners.		1696 (1696)	Wing C5653; ESTC R1060	279,424	488

Law that the Plaintiff had no Cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for Bailing those which are contained in the second Branch as those in Execution c Plowd 66 67. Dive and Manningham But as for the Conclusion of the Plea the Condition was That the Defendant should appear in B. R. to Answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his Enlargment and Issint non est factum The Plaintiff demurrs Specially upon the Conclusion of the Plea which ought to be Judgment Si Actio and agreed the Plea to be ill Allen p. 85. Leech Davies The Defendant and L. were joyntly bound Judgment confessed on Escape to Sir J. Lenthall for the true Imprisonment of W. and there was a Warrant of Attorney to Confess Judgment on the Escape of W. Glyn moved to set aside the Judgment being a way for Ease only and Judgment entred without Trial of the Escape But per Cur ' It is to be entred on Action brought which is brought and the parties are at Issue But Sir J. Lenthall assigned his Security to the Creditor which per Cur ' is well enough and there appearing no Fraud they refused to set aside the Judgment 1 Keb. 815. Sir John Lenthall versus Lord Landois The Marshal takes Bond of one in Execution The Rules of the Kings-Bench to be a True Prisoner who Escapes Action is brought against him and well for the Bond is good The Marshalsea was Ruled to be enlarged and this shall be called Within the Rules and if the Marshall take a Bond to tarry there it is good Latch 143. Sir G. Reynell versus Elworthy Poph. 165. fine Sir G. Reynel's Case But a Bond to the Marshal c. to save harmless from Escapes is void and within the Statute because it is not a Bond that he shall continue a True Prisoner Vide the Condition Record and Pleadings 1 Sand. 160 161 162. Lenthall and Cooke 2 Keb. 422. Id. Casus The Marshal ought not to take Bond for Bond for Chamber-Rent void Chamber-Rent this is to come in in Allowance Fees The Warden nor other Gaoler cannot impose what Rents they will on Chambers 3 Keb. 102. Bond and Mosedale 3 Keb. 133 603. Duckenfield's Case A Bond or Covenant for Fees is void but a Bond for Fees Bond for True Imprisonment is not void primâ facie without Circumstances c. 3 Keb. 133. Mosedale and Middleton A Bond for Chamber-Rent is void by Common Law because the party is restrained contra voluntatem and shall be Imprisoned till payment Also the Statute extends to the Marshal only for such Bonds as they may take virtute Officii Latch 10. Epsom Case Upon a Statute acknowledged and Extent sued the Sheriff takes Bond of 20 l. for payment of 10 l. his Fee and this was before the Liberate It s a void Bond 1. Because he takes the Bond before the Liberate 2. He took his Wages before he did his work 3 Keb. 678. Ellis and Nelson Vide infra tit Fees Note A Promise is within the Statute as well Promise as a Bond. But it is where the Bond or Promise is made by the Prisoner himself or some other for him And therefore in an Action on the Case the Defendant promised the Plaintiff That if B. a Special Bayliff at his Nomination arrested A. at his Suit on Cap ' ad satisfaciend ' and suffered him to Escape he would not sue the Plaintiff this is not within this Statute 1 Leon. 132. Palmer and Smalbrook But Hobart in Norton Sim's Case saith Covenant is not within this Statute that is because it was not a Bond for performance made in the behalf of a Prisoner as Beaufage's Case is Hob. p. 13. As to Assumpsits and Considerations about delivering Prisoners in safe Custody saving harmless from Escapes permitting to go at large Vid. infra Sub tit Escape in fine By the Statute of 13 Car. 2. c. 2. persons arrested Where the Sherist is not to take 60 or 40 l. Bail by Process out of the Kings-Bench or Common Pleas not expressing the Cause of Action in the Writ Bill or Process and which are bailable by the Statute of 23 H. 6. c. 10. shall give Bail Bond not exceeding the Sum of 40 l. and upon Appearance at the Retorn he shall discharge such Bail Bonds And if the Plaintiff do not Declare before the End of the next Term after Appearance then he shall be Nonsuit and Judgment and Costs shall be against him But this Statute extends not to Arrests upon Capias Utlagat ' Attachment or Rescous Contempt or Priviledge nor to popular Action or Action on any Penal Law except for Tythes Indictment or Information Now if the Sheriff in such Personal Actions do take a Bond of 150 l. where it ought to be but 40 l. the party shall have an Action upon the Statute against the Sheriff but the Bond is not void This was the Case of a Coroner 2 Keb. 387 311. Foster and Closon And therefore Villars and Hasting's Case where it saith The Statute doth not restrain him from any Sum is good Law but with this Caution That Action lies against him if he exceed 40 l. de placito debiti generally upon this late Statute Cro. Jac. 286. In what other Cases the Sheriff may Bail or not The Sheriff cannot bail one Committed for Felony except it be by the Kings special Writ directed to him for that purpose A man Indicted for Trespass or any the like Offence before Justices of the Peace and thereupon Committed to Prison may upon the Kings Writ be Bailed by the Sheriff to appear at Sessions Upon a Supersedeas the Sheriff may bail a man Sued or Indicted c. whereupon a Capias or Exigent shall be awarded against him and the party thereupon is Imprisoned CHAP. VIII Of Retorn of Writs and when they may be Retorned General Rules and Maxims of Retorns What Writs must be Retorned and what need not What shall be a good Retorn of Writs or how Retorns shall be made in respect of the Person that makes the Retorn as Sheriffs Bayliffs of Franchises c. In respect of the Forms and where insufficient Retorns are aided Where Retorns shall be void for the Uncertainty or Repugnancy What shall be a sufficient excuse for the Sheriffs Non-retorn of a Writ and what not What Acts Process or Appearance shall be good before the Retorn The Penalty on the Sheriff by the Court for Non-retorn A Retorn is but a Certificate made by the Sheriff or Bayliff to the Court from whence the Writ issued of that which they have done touching the Execution of the same Writs There is a difference between the Teste and Retorn of Writs A Retorn

of the Burgesses there have made choise and election of and of to be Burgesses of our said Borough of Warwick to attend at the Parliament according to the Tenor of the said Warrant to me directed in that behalf In Witness whereof I have to these Presents set our Common Seal of our said Borough the day and year first above written The Sheriffs Retorn of the Writ for Electing a Parliament Man Knight of the Shire VIrtute istius Brevis mihi direct Eligi feci duos milites Gladiis cinctos magis idoneos discret de Commitat meo praed videl W. F. O. S. qui quidem milites plen sufficien potestat pro se Comunitat Com. praed habeant ad faciend consentiend iis quae ad diem locum infra content de Communi Consilio Regni Regis Angliae ordinari contingerit Et praed W. F. J. S. Manucapt sunt per J. P. W. B. R. D. R. N. ad essend ad Parliamentum Domini Regis apud Westm ad diem infracontent ad faciend prout istud Breve in se exigit requirit Feci etiam praeceptum to the Mayor or Bayliff de G. qd de Burgo de G. Elegi fecerint duos Burgenses de discret magis sufficien qd sint ad Parliamentum dicti Domini Regis ad diem infra content ad faciend consentiend ut praed est qui quidem Mayor c. sic mihi respond qd Eligi fecer de praed W. Burgo de G. duos Burgenses discret ' magis sufficien ad essend ad Parliamentum praed viz. S. W. C. R. W. R. O. Armig. Vic. The Sheriffs Office about the Sessions of the Peace As to the Precept of the Sheriff for Summoning the Sessions of the Peace vid. Lamb. 367. Impress 1599. it ought to bear date under the names of two Justices of Peace at least And not of the Custos Rotulorum alone It must be to Summon 24 Jurors and to command all Constables Bayliffs or Coroners to give their attendance upon the Justices And the Form of the Retorn of the Summons vide Dalt 198. In some Cases the Sheriff is to joyn with the Justices as in Case of Riots c. 13 H. 4. c. 7. He is to attend and assist the Justices of the Peace to Arrest such as shall make any forceable Entries or Detainer 15 R. 2. c. 1. He is to Summon 24 to be of the Grand Inquest As to other sorts of Precepts which the Sheriff is to execute in respect of Commissioners of Sewers Commissioners of Bankrupts and several other Acts of Parliament vid. Dalton And the Acts themselves all the Duties of his Office being so various and especially in many late Acts its best to refer to the Acts themselves which no Gentleman ought to be without CHAP. XXIX Customs of London Of their Officer Prison Court of the Sheriffs Court How to lay the Custom of the Sheriffs Court The difference between the Mayors Court and the Sheriffs Court Sheriffs Court when kept The manner of entring Actions in the Country Customs of London as to Officers Courts Process and Prisons c. Vide 9 Rep. 62 63 67. tit Arrest vid. Calthrop BOth the Sheriffs of London are in Law but one Sheriff and the one is not of London and the other of Middlesex as is vulgarly supposed Hob. p. 70 Lamb and Wiseman And the Sheriff of London is known in Law to be two persons therefore if one Sheriff of London make his Retorn without his Fellow this cannot be holpen by Jeofail it being as no Retorn at all or a Retorn without the Sheriffs Name subscribed And London had no Sheriffs in the 13th of Ed. 1. 1 Leon. 284. In London the Mayor and Comminalty have the Office of Sheriff of London and Middlesex and Two Sheriffs are yearly chosen 3 Rep. Westby's Case Upon a Capias ad satisfaciendum to the Sheriff of Middlesex to take J. S. if the Sheriff take him and put him in Newgate which is the Common Prison for London and Middlesex and after another Writ of Execution comes to the Sheriff of London altho' the Sheriffs of London are also Sheriffs of Middlesex and Newgate where the Prison is is the Prison for both Newgate a Prison for both London and Middlesex Counties yet the Prisoner shall not be said to be in Execution upon this New Writ in London nor may the Sheriff of London serve it upon him because he is in another County For when the Cemmitment is to Newgate by Commitment by Sheriff of Middlesex is not a Commitmitment in London tho' the She●iffs of London and Middlesex are one force of a Writ to the Sheriff of Middlesex he may not be said in any respect to be in the County of London for the Counties continue several and the Prison several in respect of the several Commitments For there are two several sides and a partition between them 1 Rol. Abr. 894. Coas's Case Trin. 16 Jac. B. R. By the Custom of London the Writ of Execution is directed to the Sheriffs of London and not to the Coroner who is the Mayor 2 Rol. Abr. 806. The Retorn of the Outlawry out of London in C. B. is generally made without saying Per judicium Coronatorum Sheriffs Court The Custom is When a man is impleaded Court of Conscience before the Sheriffs the Mayor upon suggestion of the Defendant may send for the parties and for the Record and Examine the parties upon their Pleas and if it be found upon his Examination that the party Plaintiff is satisfied that he may award that the Plaintiff shall be barred And this is called The Court of Conscience 4 Inst c. 50. 8 Rep. City of London's Case The Plaintiff in Assault and Battery in his Replication saith The City of London is an Ancient City and have Pleas and that there was a Plaint in such a Court before F. M. by virtue of which Process the Plaintiff was taken He should have alledged a Custom to hold a How to Lay the Custom of the Sheriffs Court Court before the Sheriffs and that F. M. was then Sheriff It is said Coram F. M. uno Vicecom ' its well enough there being two Courts tho but one Sheriff 1 Keb. 564. Osborn and Parker As to the difference between the Sheriffs Court and Mayors Court. A Clerk of the Mayor's Court said That the Figures Difference of the Entries in the Mayors Court and the Sheriffs Court 264 in their Entries signifie the 26th day of the 4th Month 26 the Day and 4 the Month accounting November in which the Mayor is Chosen the first and so the fourth Month is February But in the Sheriff's Court they count their Months in October And accordingly it was Ordered That Ashfield the 20th day of February commenced a Plaint c. 2 Rol. Rep. 380. Ashfield's Case If an Erroneous Judgment be given in any Writ of Error to be brought in

Savill's Savil p. 43. Rep. p. 43. he is called a Royal Officer For saith the Book Charters of Liberties granted to the Barons of Cinque Ports and other Inhabitants shall discharge them for Inferiour Offices as Constable c. but not of Offices Royal as Sheriff 1 Roll. Rep. 274. Phelp's Case The Sheriff takes place of every Noble-man Takes place of Noblemen in the County during the time that he is Sheriff And tho' the Sheriff be not a Justice of Peace yet he is a Conservator of the Peace and by this he may well imprison a man upon good Cause 2 Roll. Rep. 237. Fitzherbert N. B. 81. b. at Common Law the Sheriff may Commit any one for the Breach of the Peace Such Persons as he shall apprehend upon suspicion of Treason or Felony upon fresh Suit or Hue and Cry he may commit to the Gaol He may commit all Affrayers or Breakers of the Peace in his presence Upon any Foreign Invasion he may raise the County so upon Rebellions and Insurrections and may command any Number he thinks fit to aid him But of his own Authority he shall not Arrest any man upon suspicion of Felony except there be a Felony committed in Fact and he himself have suspicion of him By Stat. 17 R. 2. c. 8. the Sheriff may raise the Posse Comitatus to suppress Rioters and commit them to Prison 13 H. 4. c. 7. and if the Rioters resist the Sheriff and his Assistants may justifie the killing them Vide the Stat. 13 H. 4. c. 7. and the Stat. of Northampt. 2 Ed. 3. c. 3. for this purpose 13 Ed. 1. c. 39. Wheresoever the Sheriff or any other of the Kings Officers may take Posse Comitatus or have Authority either to execute the Kings Process or apprehend Felons Rioters c. if they shall find Resistance they may arrest and imprison all such Offenders He hath Custodiam Comitatus and therefore What the Sheriff may do as Conservator Pacis Tho' not to act as Justice of the Peace for that year for Cause he may commit He is Conservator Pacis Stat. 1 Mar. c. 8. doth not take away Power from the Sheriff only if he was in Commission of Peace before he was to forbear the execution of his Commission for the Peace so long as he is Sheriff but he is not to forbear the execution of that which is committed to him for the County The Sheriff if he see a person carry Weapons in the Highway in terrorem populi he may commit him tho' he do not break the Peace in his presence The Lord Coke cited the Mayor of Barstaple's Case in Chune and Piott's Case 2 Bulstr The Sheriff favoured in the Execution of his Office Now the Case of Chune and Piott was this One Clare was committed to the Compter of Woodstreet and made his Escape the Defendant being one of the Sheriffs pursued him and in his pursuit met with the Plaintiff in the Night time vagrantem who pursued him indecently and gave him uncivil words detrusit ad murum Justificat ' en faux Imprisonment whereupon he Imprisoned him and Justifies in faux Imprisonment He doth not say he did it violenter or contra pacem or sciens knowing him to be Sheriff But per Cur ' it shall be intended he did it malitiosè and the Law implies it was done vi armis It 's a good Justification Had the Defendant done it by chance and unwillingly he might have pleaded it and his not pleading it shews it to be otherwise 2 Bulstr 329. But the Mayor of Barstaple Justified the committing a man for that he did misbehave himself against him by ill Words c. Had this been laid to be done in the execution of his Office it had been good but he was then playing at Tables Anciently the Bishop with the Sheriff went Bishops and Sheriffs went Circuits The Office of Sheriff entire and not to be apportion'd in Circuit twice every year through every Hundred within the County 2 Inst 70. The King cannot restrain any part of the Sheriff's Power neither can the King choose a Sheriff contrary to the Statute of Lincoln The Office of Sheriff is entire and cannot be apportioned Tho' the King constitute a Sheriff durante beneplacito and may determine it at Will yet he may not determine it in part nor abridge him of any thing incident to his Office Hob. p. 13. 2 Inst. 501. 4 Rep. 32. Milton's Case The Sheriff is an Officer of that Eminence Sheriffs favoured in Law Confidence and Charge that he ought to have all Right pertaining to his Office and ought to be favoured in Law before any Private person I shall give you some Instances 4 Rep. 33. b. Mitton's Case Inasmuch as Escapes are so Penal to Officers Escape not to be judged strictly the Judges have always made as benign Construction as the Law will permit in favour of them and to the intent that every one may ●ear his own burden they will never judge an Escape by strict Construction As if one in Execution escape and fly into another County and the Sheriff retake him on Fresh pursuit it s no Escape if ●t be before Action brought So if the Sheriff by Habeas Corpus be commanded to bring the Body at the day he shall not be compelled to take the most direct way but the safest Vide infra The Sheriff is not punished for executing the The Sheriff not punishable for executing erroneous Process Killing of the Sheriff in doing his Duty is Murder Process of the Court tho' it were erroneous Vid. postea If any Sheriff Under-Sheriff Serjeant or Officer who hath execution of Process be slain in doing his Duty its Murder in him who kills him altho' there were not any former Malice between them and if there were Error in awarding of Process or in the mistake of one Process for another as a Capias in Debt against a Peer and an Officer be slain in the execution thereof the Offender shall not have advantage Cro. Jac. 279. Mackally's Case of such Error no more than a Sheriff who suffers a Prisoner to escape shall take any advantage of Error thereby And in this case there needs not a Special Indictment to be drawn but a General Indictment that such a party ex malitiâ suâ praecogitata percussit c. for the Law presumes Malice tho' none be proved so it is if any shall come in aid of them and an Officer 9 Rep. Mackally's Case if he be resisted is not bound to fly to the Wall as other Subjects are Several Persons were informed against for Severe Fines for assaulting the Sheriff assaulting the Sheriff in serving Execution and fined Sir J. Wingfield the Prisoner at 500 l. and Brady 500 Marks because it appeared upon the Evidence he drew his Sword and wounded the Cro. Car. 251. B. R. Le Roy versus Sir J. Wingfield and

on Latitat and in B. C. on Original Bail in the Kings-Bench is because the Cause of Action does not appear upon the Latitat by which the party is Arrested but it is made appear by the Declaration but in the Common Pleas where they proceed upon Original the cause of Action does appear Now one that is in Execution in Custody of One in Execution in Custody of the Marshal not compellalable to find Bail if another Action be brought against him Aliter in the Fleet. Who shall take Bail In London the Marshal of the Kings-Bench is not compellable to find Bail if another Action be brought against him but if he be in the Fleet on Execution and an Action be brought against him in the Kings-Bench he must either be Removed and Committed to the Custody of the Marshal or else he must put in Bail to the Action It is the Common Course of London upon Plaint before the Sheriffs and a Precept to the Serjeant to Arrest one the Sureties shall be found and offered to the Sheriffs not the Serjeants So in Inferiour Mayor's Courts Widow and Clark's Case Therefore in False Imprisonment the Defendant pleads the Custom of London That on Entry of a Plaint in London a Serjeant may by Parol or otherwise Arrest the Defendant to answer the Plaintiff and shews That J. S. entred a Plaint in the Compter against the Plaintiff and that he was a Serjeant and Arrested him and carryed him to the Compter till he found sufficient Bail The Defendant confesseth the Custom the Entry of the Pleint and Arrest and that he offered Security to the Sheriff and of this he gave Notice to the Defendant and yet he carried him to the Compter The Defendant demurrs Per Cur ' The Serjeant upon tender of Bail to the Sheriff is not bound to set the party at Large unless the Sheriff send a Warrant testifying this to him Joue's Rep. 226. Percivall and Salmon If a Capias for the Good Behaviour be directed Capias for the Good Behaviour to the Sheriff by the Justices of Assize and upon this the Sheriff makes a Warrant to J. S. to take him who took him accordingly and the party tenders J. S. sufficent Bail for his Appearance and J. S. refuseth it and keeps him in Custody This makes him not a Trespasser ab initio for 't is not his Office to take Bail but the Sheriffs 2 Roll. Abridg. 562. Adam's Case Neither the Sheriff nor any Justice of the Bail for one taken by Cap ' Excom ' Peace cannot Bail one taken by a Writ of Cap ' Excommunicat ' But he is Bailable by the Kings-Bench 1 Bulstr 122. Hall and King Capias must be taken out and sealed and delivered to the Sheriff against the Bail before he can be taken by a Testatum in another Testatum County and because in Robinson's Case it was never deliverd to the Sheriff but all Retorned in one Term the Execution was set aside 2 Keb. 424. Robinson's Case The Scire facias against the Bail usually is left Scire fac ' against the Bail Retorn four days with the Sheriff before the Retorn of it but if it be not it is well enough 2 Keb. 229. Barle and Potter Judgment in a Scire facias against Manucaptors Retorn of Scire fac ' against the Manucaptors the Bail is liable by the Judgment and if they be Freeholders in the same County where the Recognizance is made then they must have notice and time because the Scire facias may be Retorned But if they be Strangers the Sheriff is not bound to warn them or give notice Notice but Retorn Nihil on both together for this is but of favour to the Bail who at their peril ought to bring in the Principal In Action brought against the Baron and Where the Husband must put in Special Bail for his Wife or not Feme and the Husband is only Arrested yet the Husband must put in Bail for his Wife if the Name of the Wife be in the Writ else he is not bound to put in Bail for her for it is the Writ that warrants the Bail Pract. Reg. 43. Yet in 1 Keb. 241. the Husband is not bound to put in Special Bail for his Wife if she be not Arrested but he must appear for himself and his Wife and must find Special Bail for himself 1 Keb. 241. Nevill and Cage Note Where Bail is put in De bene esse as in a Judges Chamber the Plaintiff cannot Sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 2 Keb. 478. But I think he may except against it after within a certain time According to an Old Rule it was within 20 days Of Bail Bonds The Explication of the Statute of 23 H. 6. This Statute is frequently pleaded in our Books and many Cases about the Nature of this Statute and the Retorns and Pleadings thereupon we meet with which if methodically digested would be the better and more clearly explained Let us see how the Law was at Common Law and before the making of this Statute At Common Law if the Sheriff had taken any man by the Kings Writ he must not be Breve de homine Repleg ' delivered but by Breve de homine replegiando and he was not compellable to take Bail of any 2 Sand. 60. But this Statute compels him to take Bail and the design of the Statute is to provide against the Extortion of Sheriffs who would not deliver them without great sums Cro. El. 808. Sir George Clifton Now the Statute prescribes the Form and that Design of this Stat ' the Sheriff under colour of his Office should not oppress the party to make him any other Obligation for the Statute makes the Obligation void for not pursuing the Form but not in the Matter thereof This Statute was made for the Prisoners benefit for the mischief before was That the Sheriff not being compellable to bail him would extort Money to bail him Mod. Rep. 228. Now this Statute hath Three Branches as it is in Dive and Manningham's Case Plowden 1. Commandment and Authority to the Sheriff to let to Bail ' such persons as are Mainpernable So it extends to Coroners Stewards of Franchises Bayliffs Keepers of Prisons c. 2. A Restraining branch That they shall not let to Bail such persons as be in their Ward by Condemnation Execution Capias Utlagat ' or Excommunication Surety of the Peace and such as shall be Committed by special Commandment of the Justices nor Vagabonds 3. The third is to make Obligations void taken in any other form than the Statute limits That no Sheriff nor any of his Officers and Ministers aforesaid shall take or cause to be taken or make any Obligation for any Cause aforesaid or by colour of their Office but only to themselves of any person nor by any person which shall be in

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 former● 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 Retorn● 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 tec●●● 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 Reto●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

a mounts to a Supersed before Execution done the Sheriff shall be excused for doing it before a Supersedeas delivered but this is sufficient to supersede the Execution Where Writ of Error is a Supersedeas or not and when 1 Keb. 12. If a Writ of Error be brought and shewed to the Attorney if Execution proceed a Supersedeas quia erronice may go But in Noel's Case 2 Keb. p. 33. Error brought and shewed to the Attorney is no good Supersedeas till it be shewed to the Clerk of the Errors Till the Roll Marked or the Writ delivered unto the Officer in Court Writ of Error is no Supersedeas especially after the Retorn of it 3 Keb. 171. The party ought to take notice of a Recipitur upon the Record if it be Entred and if the party take not out Execution after the Writ of Error allowed it is a Contempt else not and the Attorney is not bound to view the Record if a Writ of Error be brought but may take out Execution if there he not a Supersedeas or notice given to the party Stiles Rep. 105. Winn and S●●bbins ' Its the duty of the Clerk of the Errors to mark the Roll and not the Attorny Stiles Rep. 159. Mercer and Rule A Writ of Error is duly persued tho the Roll be not marked and if neither the Roll be marked nor notice given to the Attorney of the other side of the bringing the Writ of Error if the party proceed to take out Execution it is no Contempt to the Court. Marking the Roll paying Fees for or allowance Where and when a Writ of Error is a Supersed or not by the Chief Justice of a Writ of Error is no Supersedeas unless actually taken out before Execution per Touisden Error brought and shewed to the Attorney is no Supersedeas until it be shewed to the Clerk of the Errors which is an Allowance in Court and therefore if Execution be done before it be allowed by the Judge or shewed to the Clerk of the Errors it is well done because the Attorney otherwise would never have it allowed but only shewed to the Attorney of the other side but if he shew it and declare his Intention to have it speedily allowed there Execution is superseded in the mean time but yet if Bayl be not given according to the Statute the Execution may be well done which the Court agreed 1 Keb. 33. Noel's Case Formerly per Hales if Execution were gone out before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas and by him it shall not be a Supersedeas unless shewed to the pary and must not foreclose his time in having it allowed for if it be not allowed by the Court within four days it is no Supersedeas and a Writ of Error taken out if it be not shewed to the Clerk of the other side and allowed by the Court it is no Supersedeas to the Execution Mod. Rep. 112. The Sheriff makes his Warrant to a Bayliff to Time of the delivery of the Supersed take the Body of c. Upon a Ca. Sa. and before the Warrant executed the Sheriff receives a Supersedeas and the Bayliff having no notice proceeds yet the Arrest is not lawful but the Bayliff is excusable in Tresspass Moor p. 677. Prince and Allington One purchaseth a Supersedeas and doth not deliver it to the Sheriff till after the fourth County day and then he is Outla wed yet the Outlawry Outlawry is void Moor. n. 73. Ca. sa was delivered to the Sheriff of E. at 11 Clock and a Warrant thereupon made to the Bayliffs 4 hours after a Supersedeas comes to the Sheriff and a Warrant upon this Supersedeas delivered to the Goaler to set the parties at liberty if they were Prisoners who upon it were discharged Per. Cur. the Sheriff hath done well being the same day Lit. Rep. 296. Porter and Corbet Fi. Fac ' to the Sheriff to Levy the Debt and the Defendant brought Error and had a Supersedeas so much Mony as the Sheriff had received before shall go to satisfaction and a Venditioni exponas shall issue upon it Yel p. 6. Tocock and Honyman Supersedeas as to Goods seised is a Supersedeas Where a Supersed shall stay the Sale of Goods or not as to Sale but if the Sheriff hath received the Mony he must return it into Court 3 Keb. 174 Mud and Warren and it is not discharged by the Supersedeas And the case was a Supersedeas came before Execution but in truth after Goods seised and before Goods sold but after the Sheriff had taken security for the Mony and discharged the Execution Sheriff returns that he had received a Supersedeas out of Chancery in the nature of an Aud. Querela It is not good because the Record was not there 1 Rol. Abridg. 383. Merston and Mannory A Certiorari delivered to the Justices of the Peace after Restitution awarded and before it be executed by the Sheriff is not a Supersedeas to the Sheriff unless the Justices make a Supersedeas upon it which if they do not they are fineable for the Contempt Mo. Rep. 673. Note By the Stat. 16. and 17. Car. 2. c. 8. All stays of Execution by Supersedeas on VVrits of Error after Verdict are taken away but the other remains as they did Aud. Quer. on escape where it lies or not or upon other Execution by the Sheriff not well made and delivered Vide infra sub titulo where the Escape of one shall be a discharge of the other or not Audita Querela is an Equitable Writ and not to be allowed without Equity If one in Execution escape of his own wrong he shall never have Audita Querela to discharge himself and the Goaler may retake him but if he escape with the consent of the Gaoler the the Gaoler cannot take him again and if he do the party shall have an Audita Querela Cro. Car. 240. Robinsons Case 1 Rol. Abridg. 307. Trevillian and the Lord. Roberts So if the Sheriff Arrests one in Execution and doth not retorn the Writ but suffers him to escape and upon the alias Capias he Arrests him again Audita Querela lies Mo. 57. n. 163. But where two were bound joyntly and severally one was condemned and taken in Execution after the other was sued condemned and taken the first escapes the other shall not have Audita Querela for there must be satisfaction in part 5. Rep. 67. Blomfields Case A word that is surplusage shall not avoid this Writ as in Arundels Case The Audita Querela comprehended that M. had recovered against the Plaintiff in Debt and that he was taken by Cap. ad satisfaciend at the Suit of M. by the Sheriff of G. who let him go at Large and on Issue upon the voluntary escape it was found for the Plaintiff And it was moved that the Writ of Audita Querela was not good for the words

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 fil●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 Whe● Writ of Error lies upon P●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 invene●itis and it is not here pleaded That he found him resisting in e● parte i. e. to keep possession But per Cur. the words in e● 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. Restitu●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

The Sheriff being made a Baron of Parliament or becoming a Baron by discent this doth not determine his Office By the Death or Resignation of the King the Authority of the Sheriffs and all his Officers doth determine therefore it is used presently in the next Kings time to sue out new Patents of his Office and of Assistance CHAP. III. Of Under-sheriffs c. His Nature and Office and Oath In what cases the High-sheriff must execute the Office in person He cannot abrige the Under-sheriffs Power Of the Sheriffs Deputies in the County and in the Courts above Pleadings by the Deputies and of Rescues from him What Bonds and Covenants between the High-sheriff and Under-sheriff are good or not and the pleadings to such Bonds What acts or defaults of the Under-sheriff Bayliffs Gaolers the High-sheriff shall be answerable for or not And what Actions shall be brought against the High-sheriff Under-sheriffs and Gaolers Cases and Resolutions about the Rule Respondeat Superior Where the Lords of a Franchise shall be answerable Of Trial by the Sheriffs Certificate or by the Record WE have seen before how that an Earl had the Jurisdiction of the Counties and their Commission ran thus Commisimus vobis custodiam Comitatus nostri ad voluntatem and the Sheriff comes in his place and all Sheriffs likewise have their Commissions ad voluntatem nostram and tho' Deputy 3 Bulstr 77 78. Phelps and Winchcomb there is no mention in his Patent of any Deputy to be made by him yet he makes one And as in the first Goverment the Earl made his Deputy so the Sheriff made his Deputy viz. the Under-sheriffs and Bayliffs Errants within the County called the Serjeants of the County and there is no Warrant for him to do so but yet the same hath been still done A Ministerial Officer as the Sheriff is may Ministerial Officers may make Deputies make a Deputy but a Judicial Officer cannot because he is to do Justice Sed distinguendum est All Retorns made by him ought to be made in the name of the Principal Officer For the High-sheriff only is sworn as to the execution of the Office of Sheriff and he is to answer all Sub-Vicecomes is a person that our Law takes The Antiquity of Under-sheriff The Nature of an Under-sheriff notice of and an Under-sheriff hath been in use before the Conquest Now an Under-sheriff being in effect but the Sheriffs Deputy according to the nature of a Deputation he is removable as an Attorney is and if the Sheriff make him irrevokable yet he may revoke him He is but in the nature of a general Bayliff Errant to the Sheriff and the whole Shire as others are over the Hundred So that the High-sheriff may grant this Office at The High-sheriff may execute the Office of Under-sheriff himself Will or he need not make an Under-sheriff at all but may exercise it himself The Under-sheriffs Oath Every Under-sheriff before he meddles with Stat 27 E● c. 12. his Office shall before one of the Justices of Assize or the Custos Rotulorum of the County or two Justices of the Peace there one whereof to be of the Quorum take the Oath of Supremacy and also the Oath hereafter written on pain to forfeit treble Damages to the party grieved if he commit any act contrary to the said Oaths or either of them The Form of the Oath is as follows I A. B. shall not use nor exercise the Office of Under-Sheriff corruptly during the time that I shall remain therein neithe shall or will accept receive or take by any colour means or device whatsoever or consent to the taking of any manner of Fee or Reward of any person or persons for the Impannelling or Returning of any Inquest Jury or Tales in any Court of Record for the King or betwixt party and party above Two shillings or the value thereof or such Fees as are allowed and appointed for the same by the Laws and Statutes of this Realm But will according to my Power truly and indifferently with convenient speed Impannel all Jurors and Retorn all such Writ or Writs touching the same as shall appertain to be done by my Duty or Office during the time that I shall remain in the same Office So help me God No Bayliff of Franchise Deputy or Clerk of Bayliffs of Franchises and Sheriffs Deputies to take the same Oath a Sheriff or Under-sheriff shall intermeddle with their several Offices before they have taken the said Oaths as aforesaid before the Persons appointed by this Act to administer the same or before the Head Officer of the place if it be a Town Corporate altering only the Terms of the Office and the Office of Under-sheriff to such words as are convenient for the Deputation Office or Place respectively And this on pain to forfeit 40 l. between the King and the Prosecutor The Forfeitures may be sued by Debt Bill Forfeitures how to be recovered Plaint or Information in any the Kings Courts of Record And Justices of Assize and of the Peace in their open Sessions shall hear and determine the default done contrary to this Act and on Conviction to award Execution by Fieri fac ' Attachm ' Capias or Exigent The Sheriff in making an Under-sheriff doth implicitly give him power to execute all the ordinary Offices of the Sheriff himself that be transferred by Law as serving Process Exetion and the like But in some Cases the High-sheriff must exercise the Office himself in person and the Under-sheriff may not do it As On a Writ of Partition On a Writ of Redisseisin for in that the Sheriff is Judge In a Writ of Waste for there the Sheriff is commanded to go to the place wasted Vide infra In Justicies the Sheriff himself is Judge or else all is coram non Judice and the Under-sheriff cannot hold Plea in it In all Cases where the words of the Writ are That the Sheriff shall go in his own person as in an Accedas ad Curiam Waste Redisseisin there the Under-sheriff cannot do it And one may be Judge and Officer in diversis respectibus As the One person may be Judge and Officer in diversis respectibus Sheriffs in Redisseisin Waste c. so Bayliffs in many ancient Corporations are Judges and Officers too and the Custom is good Cro. Car. 138. Crane's Case A Writ of Partition was awarded and upon the Examination of the Under-sheriff he confessed the High-sheriff was not there as he ought to have been and a new Writ was awarded Now in the Writs aforesaid where the Sheriff must do Execution in his own person if He be not there in person if Exception be taken at the Bar before the Retorn of them be received If the Waste be retorned and filed the Court cannot Examine whether he were there in proper person But Exception may be taken at the Bar before the Retorn be received the Writ shall

divers Hundreds granted to him for Life in Com' Bucks reserving a Rent which the Sheriff disallowed and put in Bayliffs of his own and per Curiam this was against Law and they belonged to the Office of Sheriff And so A Patent to Execute all Process within an Hundred is void There was a Case in 34 Car. 2. B. R. Cle and Ireland which confirms this resolution The Sheriff of the County of Leicest ' against the Grantee of the Hundred of G. in an Action on the Case the Grant was by the King of an Hundred pur Ans and on Special Verdict the Question Sir Th. Jones Rep. 194. was If the Defendant had good Title by such Grant to the said Hundred to hold a Court and constitute a Bayliff against the Will of the Sheriff and the Contingent and incident Fees of Leets and Courts Barons of the Hundred And per Cur ' all the Hundreds which were not before the Statute of 2 Ed. 3. c. 12. and 18 Ed. 3. c. 9. in Fee by the Crown were joyned to the Office of the Sheriff And Judgment was given for the Plaintiff against the Patentee A Sheriffs Bayliff is not an Officer of the Pract. Reg. 49 50. Court that the Court takes notice of A Bayliff of an Hundred may Execute a Writ The extent Pract. 49. out of the Hundred where he his Bayliff for he is Bayliff all the County over Sheriffs Bayliffs shall not be prejudiced by Sheriffs Bayliffs not to be prejudiced by the Non-retorn or the mis-return of the Sheriff the Non-retorn or Mis-retorn of the Sheriff The Defendant as Bayliff of an Hundred took Goods in Execution on Fieri fac ' and sold them and delivered the Money to the Sheriff its good and no Trover lies against the Bayliff for they did Execute Secundum Exigentiam Brevis 1 Leon. 144. Parkes and How 's Sheriffs Bayliffs are to take the Oath of Allegiance To take the Oath of Allegiance 3 Keb. 561 552. according to the Statute 27 Eliz. c. 12. Subpaena 40 l. viz. Bayliffs of Hundreds for they should Execute all Writs and must attend Assizes and Sessions and the Statute requires that Le Roy versus Bents they have sufficient within the Hundred but the ordinary Bayliffs or Bum-bayliffs need not And the words that no other Person or Persons shall intermedle till Sworn refer to the subject matter viz. such persons as ought usually to swear as Sheriffs Officers The Form of the Deputation of the Bayliff of the Hundred Vid. Greenwood 53. The Execution of all Writs which come to 9 Ed. 2. de vicecom the Sheriff shall be done by the Bayliffs of Hundreds such as are sworn tho' now the use is to put in Special Bayliffs Bayliffs of Hundreds shall attend Justices of 27 H. 8. 24. Assize Gaol-delivery and Justices of Peace in every of their Courts and Sessions Of Special Bayliffs what they are and how they stand in the Eye of the Law A Special Bayliff to a Sheriff for the time being Jones Rep. 65. Bath and Salter he is his Officer and his Arrest is the Arrest of the Sheriff and if he suffer a Prisoner to Escape an Action lies against the Sheriff and if the Prisoner makes Rescous the Retorn of the Retorn of Rescous Rescous shall be that it was done to the Sheriff himself The Statute of 27 El. c. 12. about taking the Jones Rep. 249. Oath that the Under-sheriff takes extends not to Special Bayliffs Inconsideration the Bayliff will make such an Promise to save harmless from Escapes Crok El. 178. 271. Dabridgcourt and Smalbroke 1 Rol. Ab. 16. Palmer and Smalbroke one his Special Bayliff a promise to save harmless from Escapes is good for he is an Officer appointed by the Plaintiff and it s no reason the Sheriff should be at a loss by his appointment And this Assumpsit is not within the Statute of 23 H. 6. c. 10. for as the Party may Discharge a Prisoner in Execution so he may foreclose himself from the benefit if the Prisoner Escape and this Action lies if he brings Escape against the Sheriff Note The Delivery of the Writ and the Promise made was to the Under-sheriff and not to the Sheriff himself Of Bayliffs of Franchises and their Power and Retorns Bayliffs of Franchises or Liberties are such as are appointed by Lords within their Liberties to do such Offices within the Precincts of such Lordships or Liberties as the Bayliff Errant do at large in their County Hundred that have Retorna brevium or Franchises Note Bayliffs of Franchises before they execute The Oaths Insufficient retorns by them their Office must take two Oaths one concerning the Supremacy the other concerning the executing their Office Vide Supra Tit. Under-sheriff Fines and Amerciaments for insufficient Retorn Where the Sheriff may enter the Franchise or not of Writs or other Process made by the Stewards or Bayliffs of Liberties shall be set upon the Heads of such Stewards or Bayliffs and not upon the Sheriff per Stat. 27 H. 8. c. 24. Hundred by Grant that hath a Bayliff by 3 Keb. 71. 125. particular Lord is but his Servant and the Sheriff Monday and Frogat Bayliffs of Franchises cannot as such take Bonds for appearance in the Sheriffs name must retorn his Precept usually makes another Bayliff to execute there But a Bayliff of a Franchise Hundred may wave his Franchise and Arrest as a Sheriffs Bayliff and then he may take Obligation in the name of the Sheriff for properly a Bayliff of a Franchise cannot take a Bond for appearance in the Sheriffs name but Bayliff of Hundreds may Dalt 544. cont * 2 Keb. 838. Grene and Jones The Baliff of a Liberty must Retorn his Precept and set his name to it and a Bayliff Itinerant need not † Keb. 86. 87. They cannot Arrest a Man without a Warrant to them by the Sheriff and if they Retorn not the Warrant to the Sheriff the Party Arrested may have his Action of false Imprisonment against the Bayliff A Bayliff of a Liberty cannot execute a Cap. Cannot execute a Cap. Utlag 3 Jac. 1. per Cur ' in B. R. Utlag and if the Party be in the Hands of the Bayliff the Sheriff may take him for it is a non omittas in it self In all Cases where the King is Party the Process must be with a non omittas propter aliquam Libertatem and there the Sheriff shall not send his Precept to the Bayliff of a Liberty but shall enter himself ex officio as for apprehending of Felons or any act at the Suit of the King always Dalt 456. extant on Stat. Merchant vid. Stat. de Mercatoribus But in other Cases where the King is no Party there if without a non omittas the Sheriff shall enter a Franchise to execute the Kings Process the Execution of the Process shall be good but the Lord of

he may abate it 29. Ed. 3. 21. b. What is Presentable in a Franchise as default In what cases what is presentable in a Franchise is presentable in a Tourn or not in Repairing a Cawsey is not presentable in the Tourn because out of his Jurisdiction being in the Franchise But if the default be in the Lord for not Repairing it this may be presented in the Tourn because the Franchise was first derived out of the Tourn 10 H. 4. 4. 17 Jac. B. R. Loader and Samuell Where and what Inquisitions or Presentments taken in the Sheriffs Tourn shall be presented to the Justices of Peace and how they shall proceed upon them By the Statute of 1 Ed. 4. c. 2. the Presentments shall be by the Sheriff at the next quarter-Quarter-Sessions and there shall be Inrolled and upon this they assess the Fines and Amerciaments and shall make Process to levy it to the use of the Sheriff Jones 300. Griffith and Bedle. Sheriffs Tourn when and where to be kept By the Statute of 21 Ed. 3. c. 15. the Tourn ought to be kept infra mensem post Festum Paschae post Festum Sancti Michaelis 31 Ed. 3. c. 13. Who shall be amerced for not coming to the Sheriffs Tourn or not Not a Baron not Tenants in Ancient Demesn I shall cite a Case or two as to Pleading in Actions about Americaments for further Explication Trespass for taking a Bullock Defendant Justifieth because at the Sheriffs Tourn held infra mensem Paschae viz. 18 Apr. the Plaintiff was presented for not appearing at the said Tourn being debito modo summonitus and Amerced by the Jury which was affeered by four of the Jury at 40 s. And after at the next Sessions of the Peace viz. 22 Apr. it was certified and ratified by such Justices of the Peace whereupon the Steward made a Warrant to him to levy it and so sold it The Plaintiff demurrs 1. Because the Defendant doth not alledge that the Tourn was kept infra mensom post Festum Paschae but infra mensem Paschae which may as well be before Easter as after 21 Ed. 3. 15. 2. Because the Americament is alledged to be made by the Jury and affeered by four of the Jurors where it always ought to beassessed by the Court for its a Judicial Act and shall be affeered by the Affeerers appointed Lib. Intr. 119. Affeerment 3. That the Amerciament was levied by the Defendant as Bayliff by Warrant from the Steward of the Court where by the Statute of 1 Ed. 4 it is appointed that no Fine or Americament in the Tourn shall be levied unless it be certified at the next Sessions of the Peace by Indenture and Enrolled and by Process made from the Justices to the Sheriff c. Griffith and Bedle Cro. Car. 275. Judgment for the Plaintiff In Trespass the Defendant Justifies for an Amerciament set in the Sheriffs Tourn and Exceptions were taken to it 1. Because he Justified by Praecipe to him lawfully granted and saith not at what place 2. He prescribes for a Tourn to be held and doth not shew any or what Estate And by Hutton a Prescription for a Tourn Prescription by a Que Estate or an Hundred Court by a que Estate is naught because it lies in Grant and is not manureable but he ought to have said That the King and all they that were seised of the said Hundred have had and from the time c. And per Cur. Except he shewed before whom the Tourn was held it was naught and it ought to be holden before the Sheriff 1 Brownl 198. Darney and Hardington Oath of Allegiance to be taken every Sheriffs Tourn C. Magna Charta 73 147 148. Hundred Courts Vid. suprà tit Bayliffs It is derived out of the County Court for the Ease of the People as the Leet was out of the Tourn The Style is thus Curia E. C. Mil ' Hundredi sui de B. in Comitat ' B. tent ' c. coram A. B. Seneschallo ibid ' Vide pluis 4 Inst 267. And the Forms of proceedings in this Court Vide Wilkinson CHAP. VI. Of the Original Process in Real Actions and Personal Actions with the Retorns as Summons Attachment c. Of Mean Process what Arrest by the Sheriff or Bayliff shall be good or not Of the Bayliffs shewing his Warrant What Arrest is good as to the time of the Arrest before or after the Retorn in respect of the persons Arrested who are priviledged or protected from Arrests or not in regard of Persons or Courts where Arrest shall be Lawful or not in respect of the Warrant Of Warrants to Special Bayliffs or known Bayliffs of Pledges de Prosequendo Of Original Process LET it be observed that regularly Writsare directed to the Sheriffs or Coroners but in special Cases to the Plaintiff himself or to others to the Party as a Prohibition ne exeat Regnum to others as to Judges Temporal and Ecclesiastical or Civil to Serjeant at Armes to Mayor and Bayliffs and where the Sheriff is Judge of the Court a Writ which should have been directed to him shall be directed to the Serjeants of the Mace i. e. where there are such Serjeants Pract. Reg. 345. The Original Process in Real Actions is a Summons so in all Personal Actions except in Trespass and in that there is no Summons but Attachment and Distress in a Real Action the Sheriff shall summons the Tenant upon the Land in demand but in Personal Actions the Sheriff must summons the Defendant by his Person And in a Praecipe there ought to be two Summoners i. e. two good substantial Neighbours If the Tenant be sufficient he must retorn two common Pledges for the Plaintiff and then the names of the Summoners thus Respons ' A. B. Vic' Comit ' infra scripi ' plegij de prosequendo John Doe Rich. Roe Summonitores infra nominati J. S. the Defendant VV. Browne J. Cook But if the Tenant or Defendant be insufficient then the Retorn must be thus Respons ' A. B. Vic' Com' infra script ' plegij de prosequend ' J. Doe R. Roe Infra nominatus J. S. nihil habet in Balliva mea per quod or unde summoniri potest nec est invent ' in eadem If it be in any Real Action or in any Action of Annuity Debt Covenant or other Writ where Summons lieth If in Trespass it is thus Infra nominatus C. D. nihil habet in Balliva mea per qd ' Attachiari possit nec est invent ' in Balliva mea If two Defendants name them if more name the two caeteri Defendantes infra nominati nihil habent If upon Distress then thus Infra nominat ' A. B. nihil habet in Terris Tenementis Hereditamentis infra scriptis per quod ipsum distringere possum If the Sheriff will delay the execution of the Writ he may return it in two manners 1. Infra nominat ' J. S. non invenit

mihi pleg ' de prosequendo for in all si fecerit te securum The Sheriff is to take Sureties or Pledges of the Plaintiff or else he need not execute the Writ 2. Istud Breve mihi deliberat ' fuit or mihi venit adeo tarde qd ' illud exequi non potui propter Brevitatem temporis And the Sheriff may retorn tarde in every Writ except in an Attachment and in a Capias But these Retorns must be true or else the Sheriff is punishable Attachment is by goods and differs from an Arrest which is only of the Body of a Man The Form of the Attachment is Pone per vadios salvos plegios B. qd ' sit coram c. ad respond ' A. de placito c. Attachment may be made by Pledges as well as by Goods scilioet by finding Pledges or Sureties to appear The Pledges shall not be bound in any sum as Mainpernors are and they shall be amerced if he appears not Where the Writ is Pone per vadios salvos plegios there if the Sheriff find the Party he may attach him by hhis Pledges if he find him not he may attach him by his Goods Fitzh Retde Vic. 57. For Offences against the Crown which touch Life and Member the Attachment shall be by the Body If the Defendant be attached by his Goods the Retorn must be J. D. infra nominatus Attachiatus est per unam patellam pretij 10 d. If od dead things ad valentiam c. The Form of the Retorn of Distringas Vide Dalton 223. In Debt or Trespass upon the Distringas the Sheriff retorned but 6 d. Issues and was amerced for it Tho' the words of the Distringas be qd ' distring ' per omnes Terras Catalla sua in Balliva tua yet the Sheriff ought to distrain him but reasonably and not according to the words of the Writ Kiel 117. Mean Process What Arrest by the Sheriff or Bailiff shall be good and lawful or not either as to the manner of Doing the Time or in respect of the Warrant or the Persons Arrested As to the Manner It 's commonly said a known Bayliff need not Shewing the Warrant shew his Warrant altho' it be demanded nor a special Bayliff without demand As to London in Mackallys Case its said the Serjeant need not to shew his Mace because he is sworn and known altho' not to the Party 9 Rep. Mackallys Case And yet in the Countess of Rutlands Case it s held a General Arrest by a Serjeant by shewing his Mace and touching his Body with it by saying Sir I Arrest you is insufficient for he ought to shew at whose Suit out of what Court for what and of what Retorn that the Party may know what to do 6 Rep. 52. Where the Sheriff doubting a Rescue causeth the Serjeant of the Mace to arrest one first on an Action of 100 l. entred in London according to Custom and after the Sheriff arrests him by Cap ' ad Satisfac ' this is unlawful and the Serjeant was severely punished and the Court disliked such feigned Actions against Law 6 Rep. 52. The Sheriff must not dispute the Authority of the Court tho' the Process be erroneous Vid. infra Dalt 106 107. If the Officer comes to Arrest a man and he flyeth the Officer may pursue him and take him in another County but he cannot beat him c. because he was not arrested If the Arrest of Bayliff he flyeth or draws Weapon he may If a Special Bayliff by force of a Warrant on Arresting J. D. in a Stangers House a Capias in Process enters into the House of J. S. the Door being open and there takes J. D. against whom the Writ is the Process is well served as to J. D. and all Strangers And if any Stranger rescue him he at whose Suit he is arrested shall have Action against him 2 Rolls Abr. 277. Hodges and Marks Case A Capias was retornable on All Souls Day which is non dies Juridicus which the Sheriff retorned and so let the Party go it is a bad Retorn the Writ was good and the detaining of the Party on it Lawful and he was commanded to bring him into Court Pop. 205. As to the Time If the Sheriff arrest a man before a Writ to Of Arrest before the Writ delivered him delivered it is a Trespass yet in the pleading he need not say that the Writ was delivered It shall be intended that the Bill of Middlesex was delivered to the Sheriff before the Arrest and before the Warrant made For the Arrest being after the prosecution of the said Bill of Middlesex and it being said in the Plea that the Bill was prosecuted per qd ' the Sheriff makes Intendment in Pleading his Warrant it shall be intended to be delivered to the Sheriff before the Warrnat made And if it were not so the Plaintiff ought to have shewed it in his Special Replication but he having demurred to it has lost the advantage If a Latitat retornable die Lunae prox ' post cras ' Arrest on the day of Retorn good Sanctae Trinit ' which is the 10th of July comes to the Sheriff to arrest J. S. he may arrest him on the said 10 day of July 2 Rol. Abr. 378. May and Hoper So a Capias in Process may be executed the day of the Retorn So a Capias ad satisfaciend ' But The Sheriff upon a Capias in Process may not But not after the day of the Retorn and before the quarto die post arrest the Party after the day of the Retorn and before the quarto die post as if the Writ be retornable Octab ' Pur ' which is the 9th day of February and the Sheriff arrests him on the 10th day the Arrest is ill for the quarto die post is but a day of grace and the party may appear before that day if he will 33 H. 6. Siderfin 229. Ellis and Jackson And tho' the Sheriff may return His Office quoad arresting is determined on the Essoyn day his Writ after yet his Office quoad arresting is determined on the Essoyn day so that Dalton p. 116. is not Law 1 Keb. 718. mesme Case An Arrest in the House the Door being open at six of the Clock at Night is good enough By the late Act of Parliament none can be Arrested on Sunday except for Treason Felony or breach of Peace In respect of the Persons Arrested As if he Arrest one person for another and one that ought not to be Arrested on the account of Protection or Priviledge The Sheriff had Process against one Adderley and he took one Adderby if he were known by one Name or the other it is good alit ' not More 407. n. 548. If the sheriff executes a Capias and there is He ought at his peril to take notice of the Person and Goods but whether Original be

Franchises ibid. The Sheriffs submission to a Fine no Conclusion to the parties to bring a False Retorn 149 Action on the Case and not Debt for a False Retorn 159 Where the Action to be brought and how to Declare ibid. Action against the old Sheriff for a False Ret ' 152 Action against the Sheriff for not Retorning the Writ 154 If it may be against the Bayliff-Errant ibid. The Sheriff not to file the Retorn depending the Action on the Case against him 156 Of Laying the Action and Decla●ation for not Retorning ibid. Where a man may Traverse or Aver against the Sheriffs Retorn or not 157 A Retorn not amendable after it is filed ib. Of the Retorn of Cepi corpus parat ' habeo when the party is bailed and the reason of it 145 Vide more of Retorns under their proper Titles as Scire facias c. Restitution Of Goods taken in Execution restored in specie 224 Of Restitution of Lands or Goods seised by the Sheriff after Judgment Reversed 228 and the Form of the Retorn in such case ib. On sale of a Term where the Term shall be restored or not 228 S SCire facias For the Sheriff upon a Retorn of a Nihil of the Pledges 89 Scire fac ' and Retorn against the Bail 93 Scire fac ' de bonis propriis not to be awarded on surmize of the party but on the Retorn of the Sheriff upon a Devastavit 192 Scire fac ' to the Sheriff of London or Middlesex on a Recognizance for Bail Scire fac ' against the old Sheriff to pay the Money levied in Execution 220 Of Retorns of Scire fac ' what are good or not 9 268 Sheriffs In Ancient times how Eligible and how at this day 3 His power and priviledge 4 Favoured in the Execution of his Office 6 His Office not apportionable ibid. Not punishable for executing Erroneous Process 7 Fine for Nonassistance of the Sheriff 8 His power to break open Houses vid. Execution 9 In what cases his Officers are excused from doing wrong ibid. In what things his Power is restrained 10 Not to be chosen a Parliament man ibid. Not to serve above one year ibid. The Sheriffs Power in another County 11 Of his Execution of Felons 12 What he must do at the entrance into his Office 13 Vide Oath 14 The Cities and Towns of England which have Sheriffs and how many 19 How the Sheriffs Office may be determined before his year is out 27 In what Cases the High sheriff must execute the Office in person 30 Sheriff not to dispute the Jurisdiction of the Court Of the Sheriffs of London and Middlesex v. London Sheriffs Office about the Sessions of the Peace 408 Seisin of Rent or Common how to be delivered in Execution 238 Supersedeas What amounts to a Supersedeas 241 Where a Writ of Error is a Supersedeas or not and when ibid. Of Execution by the Sheriff after a Supersed 243 Where a Supersedeas shall stay the sale of Goods or not ibid. Statute-Merchant c. The Writ of Execution on a Statute-Merchant and a Statute-Staple and the difference 260 The manner of Execution on a Statute-Merchant Staple or Recognizance ibid. Difference between the proceedings on a Statute-Staple and Statute-Merchant 263 264 Form of the Retorn on a Recogn ' or Stat. ibid. T TRespass against the Sheriff for wrong Executing possession 273 Trespass and false Imprisonment v. Imprisonment Tourn of the Sheriff Jurisdisdiction c. 71 72 Inquisition taken in the Sheriffs Tourn 72 Pleadings as to the Tourn 75 Who shall be Amerced for not coming to the Sheriffs Tourn ibid. Trials By the Sheriffs Certificate or by the Record 42 Trial shall be where the Cause of Action ariseth 309 V VEnditioni exponas v. Fieri fac Supersed 223 Sh●riffs demeanor in a Writ of De Ventre● Inspiciend 388 Sheriffs demeanor in a Vi Laica removenda 209 Ven●re fac and what Retorn thereof shall be good or not 392 Amendment of Venire 165 Under-sheriff His Nature Antiquity Office 28 What Bonds Covenants c. are good between the High-sheriff and Under-sheriff or not and the Pleadings 33 What Acts the Under-sheriff Bayliff Gaoler and the High-sheriff are answerable for and the Rule of Respondeat Superior 35 36 W WIthernam 62 65 Warrant What Arrest shall be justified by force of a VVarrant 86 VVhere the Bayliff must shew his VVarrant and when 87 Writ of Enquiry of Damages By whom to be Executed or not 188 The time of Executing it ibid. The Form of the Retorn 189 The Sheriffs Office in a VVrit of Enquiry of Waste 394 The View how the Enquiry to be made ibid. Of the Retorn and of Damages in Waste and the Writ to levy them to whom to be directed 396 VVrit of Estrepement where it lies and the Sheriffs Office about it 398 FINIS