Rule to bring in the Body of B. W. the next day Sub Poena 20 l. and so are all Presidents of Felony and Treason Note If it appear that the Committment is good and there is good Cause the Court remands the Prisoner if it is not good they Discharge him if it be doubtful they Bail him The Sheriff may suggest that the Party will Who to pay the Charges of the Retorn not pay his Charges of Retorn of Habeas Corpus ad faciend ' recipiend ' which is at the Suit of the Party But contra in Habeas Corpus ad faciend ' subjiciend ' which is at the Suit of the King he must Retorn at his Peril 1 Keb. 272 280. the King versus Armiger And on Habeas Corpus to remove any Prisoner the Sheriff must Retorn the Writ and the Court will allow his Charges here So in the Case of the Steward of Upon Habeas Corpus the Officer ought to bring the Prisoner to the Court and the Court shall tax Charges and compel payment if the Officer and Prisoner or Plaintiff cannot agree or payment be not made according to the Agreement Sir Tho. Jones p. 178. Error on a Scire fac ' on the Sheriffs Retorn being an Original Suit lies not in the Exchequer Chamber but Error on Scire fac ' Quare Executionem non hath been constantly allowed to lie there 2 Keb. 833. Jones and Anderson The Form of the Retorn Languidus Detent ' in Prisona attamen Corpus ejus c. The Causes of the Caption and Detention Retorned vide Dalton cap. 63. that he was taken in Execution by the late Sheriff c. that he was Imprisoned by a Justice of Peace his Warrant Retorn of a Certiorari per Viscount The Sheriffs of London appeared in Court in their proper person upon a Rule of Court to shew Cause why they did not grant out Execution upon a Judgment given in their Court or else to make a sufficient Retorn of a Certiorari directed to them because they had made three insufficient Retorns Stiles p. 444. A Certiorari was directed to the Sheriff to certifie whether the Conisor in a Recognizance had an Heir Jones p. 319. CHAP. XII How many sorts of Juries Of Retorns and by whom Retorned what manner of persons shall not be Retorned on Juries and how they shall be Discharged Where when and how persons exempt shall have Action against the Sheriff for Impannelling them Of returning trop petit Issues Of levying the Issues Of other Erroneous proceedings and misdemeanors of Sheriffs about Jurors What Estate every Juror must have by the late Statute of 4 5 W. M. Of Challenges The several sorts and causes of Challeng and what are good or not and when to be taken Of Enquiry Of Tryals betwixt Party and Party Jurors are of two Sorts Juries to Enquire are grand Juries at Assizes or the Quarter Sessions So Juries Retorned before Justices of Peace to enquire of Riots Forcible Entries and Juries Retorned before Commissioners of Sewers or upon the Statute of Bankrupts Coroners c. and Inquisitions taken before the Sheriff and all these the Sheriff is to Summon except Bankrupts Qu. Now upon every Tryal in personal Actions the Sheriff must Retorn two Hundredors at least Cok. Litt. 1 25 158. As for the number of Jurors Retorned vid. Dalton 86. Retorn of Jurors If it be conceived an indifferent Jury will Jury Retorned by the Secondary not â—e Retorned in the Country the Court on motion will order the Sheriff to attend the Secondary of the Office with the Book of his Freeholders to have an indifferent one Retorned Pract. Reg. 163. So it was done in Pooles and Markham Case Stiles 477. because the Plaintiff in a former Tryal between the Parties had Feasted four of the Jury and had Feasted some of the Jury that were Retorned upon that Tryal and the like was done in Coxes Case 15 16 Car. 2. B. R. because Cox who was Intitled to the Reversion had forbid Rent to be paid by the Tenants and took on him the defence of the Ejectment brought against the Tenants was of Kindred to the Sheriff and Undersheriff and Trustee for them But in another Cause 17 Car. 2 B. R. The Court on Certificate of a Judge that Verdict was given contrary to Evidence would not allow that the Sheriff should bring in the Book of Freeholders to the Secondary for the ill Example but ordered the Sheriff should Retorn a good Jury in the new Tryal Upon motion that the Cause to be Tryed at the Bar is of great consequence the Court will make a Rule for the Sheriff to Retorn 48 Jurors upon the Jury Pract. Reg. 163. When a Tryal is to be for a thing which concerns Who to Retorn the Jury the Undersheriff there the High Sheriff shall Retorn the Jury aliter if the Tryal concerns the High Sheriff the Undersheriff shall not Retorn the Jury but the Coroners Pract. Reg. 164. What manner of persons shall not be Impanelled on 8 Rep. 5. 3. 6 Rep. 108. 9 Rep. 49. Juries and how they shall be Discharged and where they shall have Actions against the Sheriff for Impannelling of them The Sheriff ought not to Retorn Priviledge Exemption to be exempt from Juries but he ought to Summon and shall not be liable to an Action Siderfin p. 243. The King and Percival the Case was Venire fac ' was awarded to the Sheriff of the City and County of Canterbury to Retorn a Jury here at the Bar and upon the Distringas the Sheriff Retorns this to be an Antient City and County and that the King had granted to them an Exemption not to serve in any Jury out of their City except in Cases of High Treason and by express words that they should not serve coram ipso Rege Per Cur ' First The Retorn is ill Because if it were in the power of the Sheriff to Retorn Priviledge he cannot do this upon the Distringas or Habeas Corpus as he did here because by the Retorning of the Venire viz. That there are 24 prob ' Legales homines he had concluded himself there being also Pledges upon every such Retorn Secondly That the Sheriff may not Retorn so Priviledge of Exemption when to be claiâ—ed at any time but ought to Retorn them Summoned and the Parties ought to come here and then every person who had cause of Priviledge ought to calim here in person and not the Sheriff for them More 883 30. Wallers Case Siderfin 293. The King and Percival The Court awarded an alias Distringas in regard the Sheriff cannot vary from the first Venire Retorned but must have the same Men Keb. 867. mesme Case And no Action lies against the Sheriff upon their Delivery of the Writ of Exemption Hardress Rep. 389. mesme Case But in the Town of Darby and Foxleys Case Action on the Case against the Sheriff for
he may abate it 29. Ed. 3. 21. b. What is Presentable in a Franchise as default In what cases what is presentable in a Franchise is presentable in a Tourn or not in Repairing a Cawsey is not presentable in the Tourn because out of his Jurisdiction being in the Franchise But if the default be in the Lord for not Repairing it this may be presented in the Tourn because the Franchise was first derived out of the Tourn 10 H. 4. 4. 17 Jac. B. R. Loader and Samuell Where and what Inquisitions or Presentments taken in the Sheriffs Tourn shall be presented to the Justices of Peace and how they shall proceed upon them By the Statute of 1 Ed. 4. c. 2. the Presentments shall be by the Sheriff at the next Quarter-Sessions and there shall be Inrolled and upon this they assess the Fines and Amerciaments and shall make Process to levy it to the use of the Sheriff Jones 300. Griffith and Bedle. Sheriffs Tourn when and where to be kept By the Statute of 21 Ed. 3. c. 15. the Tourn ought to be kept infra mensem post Festum Paschae post Festum Sancti Michaelis 31 Ed. 3. c. 13. Who shall be amerced for not coming to the Sheriffs Tourn or not Not a Baron not Tenants in Ancient Demesn I shall cite a Case or two as to Pleading in Actions about Americaments for further Explication Trespass for taking a Bullock Defendant Justifieth because at the Sheriffs Tourn held infra mensem Paschae viz. 18 Apr. the Plaintiff was presented for not appearing at the said Tourn being debito modo summonitus and Amerced by the Jury which was affeered by four of the Jury at 40 s. And after at the next Sessions of the Peace viz. 22 Apr. it was certified and ratified by such Justices of the Peace whereupon the Steward made a Warrant to him to levy it and so sold it The Plaintiff demurrs 1. Because the Defendant doth not alledge that the Tourn was kept infra mensom post Festum Paschae but infra mensem Paschae which may as well be before Easter as after 21 Ed. 3. 15. 2. Because the Americament is alledged to be made by the Jury and affeered by four of the Jurors where it always ought to beassessed by the Court for its a Judicial Act and shall be affeered by the Affeerers appointed Lib. Intr. 119. Affeerment 3. That the Amerciament was levied by the Defendant as Bayliff by Warrant from the Steward of the Court where by the Statute of 1 Ed. 4 it is appointed that no Fine or Americament in the Tourn shall be levied unless it be certified at the next Sessions of the Peace by Indenture and Enrolled and by Process made from the Justices to the Sheriff c. Griffith and Bedle Cro. Car. 275. Judgment for the Plaintiff In Trespass the Defendant Justifies for an Amerciament set in the Sheriffs Tourn and Exceptions were taken to it 1. Because he Justified by Praecipe to him lawfully granted and saith not at what place 2. He prescribes for a Tourn to be held and doth not shew any or what Estate And by Hutton a Prescription for a Tourn Prescription by a Que Estate or an Hundred Court by a que Estate is naught because it lies in Grant and is not manureable but he ought to have said That the King and all they that were seised of the said Hundred have had and from the time c. And per Cur. Except he shewed before whom the Tourn was held it was naught and it ought to be holden before the Sheriff 1 Brownl 198. Darney and Hardington Oath of Allegiance to be taken every Sheriffs Tourn C. Magna Charta 73 147 148. Hundred Courts Vid. suprà tit Bayliffs It is derived out of the County Court for the Ease of the People as the Leet was out of the Tourn The Style is thus Curia E. C. Mil ' Hundredi sui de B. in Comitat ' B. tent ' c. coram A. B. Seneschallo ibid ' Vide pluis 4 Inst 267. And the Forms of proceedings in this Court Vide Wilkinson CHAP. VI. Of the Original Process in Real Actions and Personal Actions with the Retorns as Summons Attachment c. Of Mean Process what Arrest by the Sheriff or Bayliff shall be good or not Of the Bayliffs shewing his Warrant What Arrest is good as to the time of the Arrest before or after the Retorn in respect of the persons Arrested who are priviledged or protected from Arrests or not in regard of Persons or Courts where Arrest shall be Lawful or not in respect of the Warrant Of Warrants to Special Bayliffs or known Bayliffs of Pledges de Prosequendo Of Original Process LET it be observed that regularly Writsare directed to the Sheriffs or Coroners but in special Cases to the Plaintiff himself or to others to the Party as a Prohibition ne exeat Regnum to others as to Judges Temporal and Ecclesiastical or Civil to Serjeant at Armes to Mayor and Bayliffs and where the Sheriff is Judge of the Court a Writ which should have been directed to him shall be directed to the Serjeants of the Mace i. e. where there are such Serjeants Pract. Reg. 345. The Original Process in Real Actions is a Summons so in all Personal Actions except in Trespass and in that there is no Summons but Attachment and Distress in a Real Action the Sheriff shall summons the Tenant upon the Land in demand but in Personal Actions the Sheriff must summons the Defendant by his Person And in a Praecipe there ought to be two Summoners i. e. two good substantial Neighbours If the Tenant be sufficient he must retorn two common Pledges for the Plaintiff and then the names of the Summoners thus Respons ' A. B. Vic' Comit ' infra scripi ' plegij de prosequendo John Doe Rich. Roe Summonitores infra nominati J. S. the Defendant VV. Browne J. Cook But if the Tenant or Defendant be insufficient then the Retorn must be thus Respons ' A. B. Vic' Com' infra script ' plegij de prosequend ' J. Doe R. Roe Infra nominatus J. S. nihil habet in Balliva mea per quod or unde summoniri potest nec est invent ' in eadem If it be in any Real Action or in any Action of Annuity Debt Covenant or other Writ where Summons lieth If in Trespass it is thus Infra nominatus C. D. nihil habet in Balliva mea per qd ' Attachiari possit nec est invent ' in Balliva mea If two Defendants name them if more name the two caeteri Defendantes infra nominati nihil habent If upon Distress then thus Infra nominat ' A. B. nihil habet in Terris Tenementis Hereditamentis infra scriptis per quod ipsum distringere possum If the Sheriff will delay the execution of the Writ he may return it in two manners 1. Infra nominat ' J. S. non invenit
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 â—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 â—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
be Sheriff in or other Justice having Power or Authority to make any Writs unto you by the Law of the Land or any Justice of Newgate Ye shall make your Bayliffs of the true and sufficient Men in the County Ye shall be dwelling in your proper person within your Baliffwick for the time ye shall be in the same Office except ye be otherwise Licensed of the King Ye shall not Let your Sheriffwick nor any Bayliffwick thereof to Farm to any Man Ye shall truly set and return reasonable and due Issues of them that be within your Bayliffwick after their Estate and their Honour and make your Pannells your self of such persons as be most next most sufficient and not suspected or procured as it is ordained by the Statutes and over this in eschewing and restrainder of the Mans-slaughters Roberies and other manifold grievous Offences that have been done dayly namely of such as name themselves Souldiers and by other Vagrants the which continually increase in number and multiply so that the Kings true Subjects may not be safe yea Ride nor go to do such things as they have to do to their intolerable hurt and hindrance Ye shall truly and effectually with all diligence possible to your Power execute the Statutes as the Statutes of Winchester and of Vagabonds These things all ye shall truly keep as God ye help Note That there was an Addition in this Crok Car. p. 25 26. Sir Ed. Coke's Case Oath by the Statute of 5 R. 2. and 2 H. 4. c. 15. viz. That he should seek to repress all Errors and Heresies commonly called Lollards and should be assistant to the Commissaries and Ordinaries in Church matters And this was objected by Sir Ed. Coke after he had been Lord Chief Justice of both Benches and made Sheriff of the County of Buckingham when he had a dedimus potestatem annexed to a Schedule in the first year of Charles the first And ever since they have been left out because Lollardism then was the true Antipapal Religion as is now professed And he made other Objections one whereof was that some parts of the Oath are not by any Statute and its a Maxim That none but the Parliament can appoint None but the Parliament can appoint an Oath an Oath But it was resolved by the Judges that this Oath being appointed and continued divers years by direction of the Statute altho' without the express Authority of any Statute Law yet may well be continued for the publick benefit Note As to the Statute of Winchester the Justices of Peace have eased the Sheriff of much trouble And by the Statute of 39 Eliz. cap. 4. all former Statues for the punishment of Vagabonds are Repealed The Oath of the Sheriff of Oxford and Berks and also of Cambridge and Huntington YOV shall Swear That well and truly ye shall Serve the King in the Office of Sheriff of Oxford and Berks. And the Kings Profit c. ut supra usque So help ye God And also ye shall Swear That the Masters and Scholars of the Vniversity of Oxford and their Servants from injuries and violences Ye shall keep and defend by all your Strength and Power and the Peace in the said Vniversity as much as in you is ye shall keep And that you shall give your Councel and Help to the Chancellor and Scholars of the same Vniversity for to punish the disturbers and breakers of the Peace there after the Priviledges and Statutes of the said Vniversity at all times when it shall be needful And also ye shall put your help withal your Strength to defend the Priviledges Liberties and Customs of the said Vniversity And that ye shall receive all such Oaths of your Vnder-Sheriffs and other your said Ministers of your said County of Oxford as soon and anon as ye shall be at the the Castle or at the Town of Oxford in presence of any that shall be thereto deputed by the said Vniversity to the which things the King will that your said Ministers be by you acted and compelled As God you help The like Addition to the Oath of the Sheriff of Cambridge and Huntington mutatis mutandis If the New Sheriff be not in London he may take his Oath by dedimus potestatem directed to any two Justices of Peace of the same County one to be of the Quorum or to any other Commissioners The Cities and Towns in England which have Sheriffs are as follow The City of Bristol 2 Coventry 2 Canterbury 1 York 2 Exon 2 Glocester 2 Leichfeild 1 Lincoln 2 London 2 Norwich 2 Worcester 1 The Town of Kingston upon Hull 1 Southampton 1 Nottingham 2 Poole 1 Newcasle on Tine 1 The Return of the Dedimus by the Commissioners is thus VIrtute istius Brevis nobis direct ' tali die Anno recepimus Sacrament ' infranominat ' A. B. Vicecom ' Warr ' tam de offic ' Vicecom ' in dict' Com' Warr ' bene fidelit ' faciend ' juxt ' formam cujusdam Schedulae praesentibus ann ' quam Sacramentum specificat ' in Actu Parliament ' Anno Regni Dominae Elizabethae nuper Reginae Angliae c. primo fact ' secundum tenorem Brevis Schedulae Brevis proed ' similit ' annex ' prout Breve istud in se exigit requirit The Sheriff must take the Oath and Sacrament as is now usual for all Officers and Ministers of Justice Stat. Car. 2. and the Oaths appointed by the Statute of William and Mary In the general Case of the Sheriffs of England when the King makes a new Patent tho' the Ancient Sheriff had his Office but durante â—eneplacito presently a Writ of de Comitatu Commisso Writ of Discharge which is commonly called a Writ of Discharge or a Writ de exoneratione officij shall issue the form Vide supra And then another Writ is directed to the Ancient Sheriff for the delivery of his County and Rolls Writs c. to the New Sheriff These were two Writs formerly but now they are included in one Vide supra The next thing is the New Sheriff at or before his first County Court must take over from his Predecessor all his Prisoners and Writs precisely by view and by Indenture to be made between them wherein all the Causes which he has against every Prisoner must be set forth and delivered or else the New Sheriff is not charged with them as in Westbies Case Now before I say more as to the Delivery I I shall shew you what Actions of the Old Sheriff or his Officers shall be good and to what time Now the Old Sheriff of a County is Sheriff until the New be Sworn altho' he be Chosen for it is the taking of his Oath that doth compleat Till what time the old Sheriff or the new Sheriff may Act. Crok El. 12 Fitz Case More 186. More 364. St. John's Case Cro. El. 440. Boucher and Wiseman him in his Office And
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 Eâ— 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
the Liberty shall have an Action against him and the Party Arrested shall have no remedy If Goods are Distrained and Impounded in a Liberty the Bayliff is to make Replevin and Deliver them but if the Bayliff will not or did not Deliver them after the Sheriff hath made Retorn of the Kings Writ to him then the Sheriff shall enter and Deliver them per Stat. 52 H. 3. 21 Ed. 1. 17. and in such cases the Sheriffs Retorn will not serve A Writ of Enquiry of Damages directed to the Sheriff cannot be executed by a Bayliff of He cannot execute a Writ of Enquiry of Damagâ—s directed to the Sheriff a Liberty but by the Sheriff himself so in Redisseisin for he is both Judge and Officer there Hob. p. 83. Vizey and Gunstone * Bayliff of Westminster fined because the Gaoler of the Gatehouse refused to charge a Prisoner with the Sheriff of Middlesex his Warrant 3 Keb. 479. Briton and Griffith One was in Prison in the Gatehouse by a Warrant from Secretary Coventry for Miâ—demeanors and the Gaoler refused to charge him with a Warrant of the Sheriff of Middlesex at the Plaintiff Suit Per Cur ' the Gaoler cannot dispute it tho' the Court may give leave or refuse it and the Bayliff of Westminster on pain of 20 l. was ordered to Return the Writ Of Retorns by them A Bayliff who Executes a Writ and is removed Of their Retorn of Writs to the Sheriff More 431. Palmer and Porter More 402. Atkinson before the Retorn may make the Retorn to the Sheriff and he over to the Court but if he Executes it not he shall not make the Retorn but the Retorn of Nihil or non est inventus t is to be made by the New Bayliffs The Sheriff Retorns Mandavi Ballivo qui mihi dedit responsum qd ' cepit corpus A. fecit Rescous It s a good Retorn But Mandavi Ballivo qui cepit carpus A. fecit Rescous is not good in Redisseisin and that he cannot Retorn Mandavi Ballivo c. Vide pluis tit Retorn A Man may aver against the false Retorns Averment against the Retorn Dalt 545. of Bayliffs of Liberties and shall recover as well against them as against the Sheriff too of several Issues retorned Dalt 545. Where the Precept is made to the Sheriff by Force within a Liberty Dalt 545. the Justices of Peace to retorn a Jury to enquire of a Forceable Entry and the Force is within a Liberty the Sheriff shall direct his Precept to the Bayliff of the Liberty to Retorn the Jury the Bayliff must make a due Retorn as to Issues on Jurors c. Note The Bayliff shall never take benefit of 5 Rep. 92. his Liberty If Capias or fieri fac ' comes against the Bayliff the Sheriff shall execute the Process on him or his Goods within the Liberty and where the Bayliff of the Liberty is party to the Suit he shall not Retorn the Jury but the Sheriff Where and in what Cases the Sheriff may Enter into a Franchise Wheresoever the King is a Party as in every Felony or suspicion of Felony or otherwise in 5 Rep. 92. any Action the Sheriff ex officio is to enter the Franchise and to execute the Process himself In a Writ of Wast and Redisseisin the Sheriff must enter the Franchise to make enquiry c. So where the Bayliff nullum dedit responsum So to Deliver a Distress But 't is safest for the Sheriff in default of the Bayliff to have a Writ of non omittas propter Libertatem On extent upon Stat. Merchant the Sheriff is to enter the Franchise If the Sheriff enter on non emittas by reason Terms Ley. of the Bayliffs default and Execute the Writ the Sheriff shall warn the Bayliff of the Franchise that he be before the Justices at the day contained in the Writ and if he come not and excuse himself then all Writs judicial in the same Plea shall be Writs de non omittas The Sheriff in his Retorn is to set down the name of Baliff of the Liberty Pleadings by Bayliffs of Franchises Trespass for taking away a Mare the Defendant He must shew the Jurisdiction of the Court. saith That before the Taking the Defendant being the King's Bayliff by Precept out of the Court of Pomfret to make Execution c. on Levari c. Per Cur ' Its ill because he doth not shew the Jurisdiction of the Court and that is necessary by the Bayliff of an Inferiour Court especially because he Justifies by 1 Keb. 53. Crofts and Wilkinson reason thereof as in the Countess of Rutlands Case and it must appear that the Court hath Cognizance of the Cause aliter he cannot execute there Precept Action on Escape and declares he delivered a Writ to the Sheriff of Nottingham who made a Warrant to the Bayliff of the King's Liberty Plead Rescue from the Deputy of the Bayliff of a Liberty of Newark to execute it which Warrant was delivered to one L. Deputy of the Lord Burleigh Ballivo Libertatis Dom ' Regis Wapentagii sui de Newark who Arrests him and the Defendant Rescued him out of the Custody of the said Deputy He saith he was Rescued from the Deputy of the Bayliff of the Franchise and does not say from the Bayliff himself or the Sheriff Per Cur ' its good For in this Action on the Case he shall shew the Truth as it is rei veritate and it s not like the Retorns of Rescues or Indictments which say it was done to the Sheriff or Bayliff himself It was moved for Error Secondly because it is alledged the Lord Burleigh was Ballivo Libertatis Dom ' Regis de Newark and the King cannot have any Liberties for they are extinct when they are come to his hands Sed non allocatur For the King may have such Liberties by the suppression of Abbies which are not extinct but revived per Stat. 32 H. 8. or by some other ways and it shall not be intended to extinct unless it be shewed And the Bayliff of a Liberty may well have Bayliff of a Liberty may have Deputy a Deputy Cro. Jac. 241. Kent and Ellwis Power of Bayliff of Franchises and Pleadings The Bayliff of a Franchise cannot take a Difference between Bayliffs of a Franchise and Sheriffs Bayliffs Bond for Appearance in the Sheriffs Name but Bayliffs of Hundreds may Vid. 3 Keb. 552. Ellis's Case Hundreds that have Retorn ' Brevium are Franchises Hundred by Grant that hath Bayliff by particular Lord is but his Servant and the Sheriffs usually makes another Bayliff to execute there But a Bayliff of an Hundred may waive his Franchise and Arrest as Sheriffs Bayliff and then he may take Obligat ' in the Name of the Sheriff also 3 Kcb. 71. Munday and Frogate The Bayliff of a Liberty must Retorn his Precept and a Bayliff Itinerant needs not
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
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
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
Habeas Corpus ad respondend ' recipiend ' or faciend ' granted on the Pleas side for so the Court of the Kings Bench is divided in the practise of it that is to say into Criminal Causes between the King and the Party and Civil Causes between Subject and Subject Now an Habeas Corpus ad respondend ' is when any one is Imprisoned at the Suit of another upon a Legal Process in the Fleet or any other Prison except the Kings Bench Prison and a third person would Sue that Prisoner in this Court B. R. and cannot because he is not in Custody of the Marshal of this Court there he may have an Habeas Corpus to remove the Prisoner out of the Prison where he is into this Court to answer to his Action here This is called a Habeas Corpus cum causa and an Habeas Corpus cum causa doth remove the Prisoner for whom it is granted and all the Causes which are then depending against him for upon Habeas Corpus to an Inferiour Court to remove Corpus cum causa they ought to return all the Causes that are depending there concerning the Party that hath the Habeas Corpus if any of the Causes depending be above 5 l. Stiles Rep. 150. When an Habeas Corpus is Awarded and Bail taken though they be not Filed yet presently the Prisoner is discharged and his Sureties also in the Inferiour Court Cro. Jac. 203. Franley and Basset One was in Execution in the Fleet for a Debt recovered against him in B. R. he being before condemned in the Kings Bench for another Debt was by Habeas Corpus cum causa removed into the Kings Bench per Cur. in this Case he may acknowledge satisfaction for both Debts in B. R. he being in the Custody of the Marshal for both Debts If the Marshal suffer him to Escape he shall be charged for both the Debts Dyer 152 307. As for Retorns of Habeas Corpus What shall be a good Retorn on Habeas Corpus or Corpus cum causa An Habeas Corpus to remove one committed for Debt from one Prison to another may be granted Retornable immediate or indilate for this is only an Habeas Corpus ad Recipiend ' in the nature of it An Habeas Corpus is not a Record till it be Amendment Retorned and Filed and then it cannot be amended but it may be amended before it s Filed Whatsoever person or by what means soever Conclusion of the Retorn he was committed the conclusion of the Retorn ought to be Corpus tamen ejus paratum habo yet it cannot always be so 1 Leon. p. 70. An Habeas Corpus ad subjiciend ' is always intended Retorn by the Chancellor of Durham to him that has the Body tho' ad faciend ' may be circular as an Habeas Corpus was directed to the Chancellor of Durham that he make a Precept to the Sheriff to have the Body coram nobis apud Westm The Retorn is that the Chancellor issued a Precept to the Sheriff to return his Body before him and that the Sheriff returned paratum habet and it s not said the Chancellor had him here which is ill per Cur. for it should be cujus Corpus paratum habeo in this Court 3 Keb. 229. the King against Pell and Offley Habeas Corpus was directed to the Steward and Cause of commitment shewed Marshal of the Marshalsea for H. the Marshal Retorns the said H. was committed to the Custody per mandatum Francisci Walsingham Mil ' principalis Secretar unius de privat ' Concilio Domini Regis This is insufficient because the Cause of Commitment is not set down in the Retorn Then it was amended and Retorned in this manner ex sententia mandato totius Concilij privati Domini Regis ità qd ' ejus corpus habere non possumus This per Cur ' is in sufficient also he ought to have concluded Corpus ejus tamen parat ' habeo Note Where the Party is committed by the whole Councel no cause of the Committment need to be shewed 1 Leon. p. 70. On Latitat the Sheriff Retorned that he had By Habeas Corpus to bring into Chancery Arrested the Defendant and that such a day and before the Retorn of the Latitat Habeas Corpus was to bring the Body into Chancery and there the Prisoner was Discharged the Retorn is good for the Sheriff is bound to obey the Kings Writs and he cannot compel the Parties to put in Sureties here in B. R. But it was ill done of the Master of the Rolls to Discharge him Per Curiam we have oftentimes persons here upon Habeas Corpus who are also Arrested by Process out of the Exchequer or of the Common Pleas but we will not Discharge them before they have found Sureties for their appearance and we cannot punish the Sheriff for the Habeas Corpus was first retornable before the Latitat But because the Retorn was à custodia nostra exoneratus fuit which might be intended as to the Cause in Chancery only and not for the Cause here for he hath not alledged that he was committed to any other in Custody the Sheriff was to amend his Retorn 1 Leon. 145. Cary Amendment and Dennis A Retorn of Habeas Corpus by the Warden of the Fleet was propter contemptum extra Cur ' Cancellariae It s not good 1 Rolls Rep. 92. General Directions for Writs of Habeas Corpus Error or Priviledge vid. Compleat Solicitor 106 and other Manuals On Habeas Corpus the Sheriff Retorns that the That the Justices committed him for a Fine Justices of Peace committed the Plaintiff for a Fine on Contempt for which the Court awarded him to remain in Prison till payment Siderfin p. 144. the King versus Mayo The Retorn on Habeas Corpus was a Protection Protection 1 Leon. p. 70. Searchers Case Note The Retorn of an Habeas Corpus ought Retorn to be Writ on Parchment to be Written in Parchment and not on Paper for the Retorn is to be Filed and made a Record of Court and all Records are to be Written on Parchment And therefore after the Retorn is Read and Filed in Court it cannot be amended But in Hob. p. 113. An Habeas Corpus was Retorned without the Sirname of the Sheriff and after Verdict amended It is agreed The Retorn of an Habeas Corpus Amendment Good to common intent need not be so punctual as a Plea because not made by Persons of such Learning as Pleas are but if they be good to common intent and substance it s enough Upon Habeas Corpus granted by the Kings Rule to bring in the Body Bench to the Warden of the Fleet to have here in Court the Body of D. W. the same Retornable at a day certain at which day the Warden of the Fleet did refuse to make his Retorn and to bring in the Body And the Court entred a
Retorning one exempt 1 Rol. Rep. 119. Action on the Case adjudged to lie against the Sheriff for Retorning one of a Jury who lived in a place which his exempt and Co. Mag ' chap. 382 130 447 488 461. Action on the Case lies against the Sheriff for Retorning a person exempt of a Jury The Sheriff must not Retorn magis remotos minus What Jurors the Sheriff must Retorn sufficientes magis suspectos by the Statute W. 2. chap. 38. and if he do the Plaintiff or Demandant shall recover Damages by the Statute if he be delayed and the Defendant if he lose his Land and Articuli super chartas gives double Damages to the Demandant The Sheriff by Statute W. 2. c. 38. must not Retorn Men decrepit senes ultra 70 annos hominos non in patria commorantes This Statute is a direct Prohibition in it self and therefore the Party grieved may have Action on the Act against the Sheriff without giving notice of Sickness Notice or Non-commorancy yet the use is to Sue out a Writ grounded on this Statute that he Retorn them not and notice by word is good if notice were requisite Co. 2 Inst 477. Peers of Parliament not to be Impannelled Remedy for undue Retorns Who is the party grieved that shall have his Action nor Tenants in Antient Demesne Where the Demandant or Plaintiff is delayed of his Suit by such Retorn of the Sheriff as magis remotos he shall by the Statute recover Damages against him or where the Defendant after he has lost his Land by the Oath of them so Retorned contrary to the Form of the Statute and after he doth convict them in an Attaint and so is restored he may then have his Action on this Statute for his Damages 2 Inst 448. sur Stat. W. 2. c. 38. If one dwell in Middlesex and had Freehold in the County of York over 40 l. the Sheriff of York may not Summon him to Middlesex to Try a Cause at the Bar in Westminster for Land in Yorkshire W. 2. c. 42. 1 Rol. Rep. 163. In a Writ of Right or any other Writ a Baron Peer of the Realm may excuse himself Action on the Statute W. 2. c. 8. for Retorning Men more remote or suspected Count and Bar inde Dr. Bonhams Case 8 Rep. 118. Upon a Tryal between a Peer and another Peer the Sheriff must retorn a Knight but if he do not and the Peer doth not challenge the Array but the Jury give a Verdict he shall not have advantage of this afterwards Lord Powes and Kertman P. 9 Car. A Jury was Empannelled of the Town of Southampton and called to the Bar and made default and the Men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Retorn should be made of the Men of that Town to be of any Jury and prayed the allowance of their Charter and the Court appointed them to plead their Charter and so they did 1 Brownl p 36. If a Man has a Charter of Exemption and sheweth it to the Sheriff yet he may Retorn him for the Sheriff is not a Judge to allow or disallow his Charter but he must Sue out a Writ of allowance of his Charter and deliver the Writ to the Sheriff and shew his Charter to him and then if the Sheriff Retorn him Action on the Case lies against him On a Dorsetshire Tryal at the Bar on default of all the Jurors but three It appeared that Sheâ—iff countermands the Summons the Sheriff had by command of the Plaintiff countermanded their Summons against the Gree of the Defendant who now prayed a Tryal But this being impossible for the Court in such Case will not supply the Jury with a Tales de Circumstantibus No Tales de circumstantibus on Tryal at Bar. But they offered to Non-suit the Plaintiff on Record and conceived the Defendant should contribute to the payment of the Jury because they should remain indifferent Jurors 2 Siderfin 77. Hunt and Hollis Retorn of a Distringas for appearance of the President Defendant in the Hustings 2 Sanders 233. Retorn of a Jury by the Bedels of the four next Wards 2 Sanders 244. If the Sheriff Retorn but 40 l. which is the Issues Action case against the Sheriff for Retorning two several Issues usual Issues on Distring as Juratores the Court on prayer of the party cannot cause him to Retorn greater but only make a Rule that good Issues be Retorned But by Twisden Action on the Case lies against the Sheriff 1 Keb. 475. The Plaintiff ought to bring a Writ against the Sheriff on Averment against the Sheriffs Retorn of Issues Averment that he might have levied greater Issues and so the Court may increase them Note Before Stat. W. 2. c. 39. the Plaintiff could not aver against the Retorn of the Sheriff if he Retorned too small Issues for he is but an Officer in Court and has no day in Court to answer the Plaintiff party But now by 1 Ed. 3. the Plaintiff may aver what the value of the Issues be Rents of the Land Corn in the Grange What shall be said Issues Hay in the Barn all moveables except Riding furniture and Utensils of House Retorn of the grand Inquest Stat. 11 H. 7. c. 9. No Indictment shall be found by any persons named to the Justices without due Retorn of the Sheriff but by Inquest of lawful liege People Retorned by the Sheriff One Scarlet whom the Sheriff had not Retorned by confederacy betwixt him and the Clark who read the pannel procured himself to be sworn of the grand Jury with intent to indict his Neighbours maliciously and he did so he was adjudged an Justices may alter the Pannel Offender within this Law and by Statute 3 H. 8. c. 10. The Justices of Gaol Delivery or Justices of the Peace of whom one to be of the Quorum in open Court may alter the Pannel Retorned by the Sheriff to enquire of the King only by Addition or substraction of any of the Jurors so Retorned and they have power to command the Sheriff to put other in the Pannel according to their Discretion And the Sheriff ought to Retorn the Pannel so reformed upon the Penalty of the said Act. So that none can be of any Grand Inquest but by the Retorn of the Sheriff Coke 12 Rep. Rob. Scarlets Case Dalton 394. Note By the Statute of 4 5 of William and Mary all Jurors are not to have 10 l. per annum vide infra It is very needful for the High Sheriff to have a Book containing the Names of all the Freeholders in his County and their sufficiences that he may make the Pannells according to his Oath and better know Pledges and Sureties As for Issues lost for default of appearance scilicet by Jurors or by Tenant or Demandant the Sheriff may not levy till they shall be estreated under the
Seal of the Exchequer and the same delivered to him for without Warrant he may not Levy the same 27 Ed. 1. c. 7. Other erroneous Proceedings and Misdemeanors of Sheriffs about and concerning Jurors After the parties were at Issue in Trespass and an Habeas corpus awarded against the Jury the Common-Bench in which the Action depended Supersedeas restrains the Sheriff from Retorning a Jury awarded a Supersedeas quia improvidè c. which was delivered to the Sheriff who notwithstanding retorned the Jury and tryed the Cause This was assigned for Error and in nullo est erratum pleaded it was adjudged Error For the Error assigned is a Matter of Fact depending on a Matter of Record and then the Defendant What is confessed by pleading In nullo est erratum by pleading In nullo est erratum had confessed this that is to say That such Supersedeas was awarded and delivered to the Sheriff before the Trial. Upon which it follows that after the Supersedeas delivered the hands of the Sheriff are closed that he cannot proceed to distrain the Jury nor to Retorn the Writ before the Justices of Assize It s a manifest Error if the Sheriff Retorn the Writ of Hab ' corpora at the Assizes with Nisi prius after Supersedeas awarded for staying the Retorn of the Writ as the Proceedings are erroneous in Inferior Courts after Habeas corpus delivered without a Procedendo Yelv. p. 57. King and Andrews Cro. Jac. p. 43. King and Hill It is not necessary for the Sheriff to Retorn Reasonable things shall be intended to be done the Pannel of the Jurors Names but to say they are de vicineto of such a place for so it shall be intended and the Forms of all Retorns of Jurors are so Pract. Reg. tit Retorn In a Writ of Error Eleven Jurors were Retorned and one Stranger yet because it was the Retorn of the Sheriff it shall not abate 1 Roll. Rep. 302. The Statute of Eliz provides There Reasonable things intended to be done shall be two Hundredors in a Jury yet it s never seen that the Retorn of the Sheriff is so So the Statute of 42 Ed. 3. c. 11. is That the Sheriff shall arraign the Pannel in Assize four days before the Assize yet its never Retorned to be so done but such reasonable things shall be intended to be done unless the contrary appear 2 Siderfin p. 144. Barclee's Case An Attorney was picked over the Bar for directing a Sheriff to retorn Jurors Names Mo. 882. n. 1237. Hanson's Case Note But now by the Statute of 4 5 W. M. Stat. 4 5 of W. M. all Jurors other than Strangers per medietatem Linguae Retorned upon Trial of Issues joyned in the Kings-Bench Common-Pleas or Exchequer or before Justices of Assize or Nisi prius Oyer and Terminer Gaol-delivery or General Quarter Sessions of the Peace shall have in their own Name or Trust within the same County Ten pounds per annum above Reprizes of Freehold or Copyhold Land or in Ancient Demesn or in Rents in Fee-simple Fee-tail or for their own or some other persons Life and in Wales Eight pounds per Annum If any be retorned of Lesser Estate he may be discharged by Challenge or upon his own Oath nor shall a Jurors Issues be saved but by Order of Court for reasonable Cause proved upon Oath The Sheriff Coroner or other Minister retorning any person of Lesser Estate shall forfeit Five pounds to Their Majesties for every person so Retorned They must be summoned six Days before the day of their Appearance and none shall take a Reward to excuse a Jurors appearance on pain to forfeit Ten pounds to Their Majesties This Act extends not to Cities Burroughs or Towns Corporate Of Challenges A Challenge to the Jurors is Twofold To the Array Polls To the Array is to except against all the persons Impannelled And as to this there is a Challenge Principal or for Favour Note That the Challenge to the Array is in respect of the partiality or default of the Sheriff or other Officer that made the Retorn and not in respect of the Persons retorned where there is no partiality or default in the Sheriff For if the Challenge to the Array be found against the party that takes it yet he shall have his particular Challenge to the Polls If the Sheriff or other Officers be of Kindred or Affinity to the Plaintiff or Defendant if the Alliance continue a good cause of Challenge 1 Bulstr. 5 6 7 8. Earl of Salop versus Earl of Rutland Challenge was taken to the Array because the Sheriff was Cousin to the Lessor in Ejectment and concludes not to the Favour it s a principal Challenge Yet in Roll. Rep. 183. it s adjudged a Principal Challenge and in 1 Roll. Abr. 328. Guest and Bridgman saith It is not a Principal Challenge that the Lessor is Cousin But Trin. 1657. B. R. in the Lord Brook's Case its a Principal Challenge Cro. Jac. 575. Simonds and Walsh 2 Rolls Abr. 182. Venire fac ' was awarded to the Coroners on surmize that the Lessor in Ejectment was Servant to the Sheriff It was doubted whether it was a Principal Challenge in 1 Jac. Harbottle's Case Coke said It was Adjudged in 27 El. in Packington's Case that it was not a Principal Challenge but in Spicer's Case it is Resolved otherwise Cro. Jac. 21. Dyer 7 367. If the Challenge be taken for Cosinage it ought to be shewed coment Cousin but in such case Challenge to a Juror is not necessary It s clearly a good Challenge to the Array that the Sheriff is Cousin to the Wife of the Defendant tho' the Wife is no party to the Action But it must be averred that she was alive or had Issue at the making of the Pannel 1. If the Jury may try a Challenge for Cosinage of the Sheriff to the Plaintiff or Defendant and sometime the Coroners or Attorneys in Court are Elisors 2 Roll. Rep. 363. Lloyd and Elisors Williams If the Defendant challenge the Array for that the Sheriff is Cousin to the Plaintiff it is no Counterplea of the Challenge that the Sheriff is also Cousin to the Defendant but the Array shall be quasht because the Defendant first took the Challenge Pasch 41 El. B. R. 2. If any one or more of the Jury be retorned at at the denomination of the party Plaintiff or Defendant the whole Array shall be quasht 3. If the Plaintiff or Defendant have an Action of Battery or Debt against the Sheriff or if the Sheriff have parcel of the Land depending on the same Title or if the Sheriff or his Bayliff be either of Counsel or Attorney or Servant or Gossip of either party all the Array shall be quasht A Prayer to Elisors in Trials at Bar may be at Elisors the Suit of the Defendant or Plaintiff but in Nisi prius at the Prayer of the Plaintiff only Consanguinity
a mounts to a Supersed before Execution done the Sheriff shall be excused for doing it before a Supersedeas delivered but this is sufficient to supersede the Execution Where Writ of Error is a Supersedeas or not and when 1 Keb. 12. If a Writ of Error be brought and shewed to the Attorney if Execution proceed a Supersedeas quia erronice may go But in Noel's Case 2 Keb. p. 33. Error brought and shewed to the Attorney is no good Supersedeas till it be shewed to the Clerk of the Errors Till the Roll Marked or the Writ delivered unto the Officer in Court Writ of Error is no Supersedeas especially after the Retorn of it 3 Keb. 171. The party ought to take notice of a Recipitur upon the Record if it be Entred and if the party take not out Execution after the Writ of Error allowed it is a Contempt else not and the Attorney is not bound to view the Record if a Writ of Error be brought but may take out Execution if there he not a Supersedeas or notice given to the party Stiles Rep. 105. Winn and Sâ—â—bbins ' Its the duty of the Clerk of the Errors to mark the Roll and not the Attorny Stiles Rep. 159. Mercer and Rule A Writ of Error is duly persued tho the Roll be not marked and if neither the Roll be marked nor notice given to the Attorney of the other side of the bringing the Writ of Error if the party proceed to take out Execution it is no Contempt to the Court. Marking the Roll paying Fees for or allowance Where and when a Writ of Error is a Supersed or not by the Chief Justice of a Writ of Error is no Supersedeas unless actually taken out before Execution per Touisden Error brought and shewed to the Attorney is no Supersedeas until it be shewed to the Clerk of the Errors which is an Allowance in Court and therefore if Execution be done before it be allowed by the Judge or shewed to the Clerk of the Errors it is well done because the Attorney otherwise would never have it allowed but only shewed to the Attorney of the other side but if he shew it and declare his Intention to have it speedily allowed there Execution is superseded in the mean time but yet if Bayl be not given according to the Statute the Execution may be well done which the Court agreed 1 Keb. 33. Noel's Case Formerly per Hales if Execution were gone out before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas and by him it shall not be a Supersedeas unless shewed to the pary and must not foreclose his time in having it allowed for if it be not allowed by the Court within four days it is no Supersedeas and a Writ of Error taken out if it be not shewed to the Clerk of the other side and allowed by the Court it is no Supersedeas to the Execution Mod. Rep. 112. The Sheriff makes his Warrant to a Bayliff to Time of the delivery of the Supersed take the Body of c. Upon a Ca. Sa. and before the Warrant executed the Sheriff receives a Supersedeas and the Bayliff having no notice proceeds yet the Arrest is not lawful but the Bayliff is excusable in Tresspass Moor p. 677. Prince and Allington One purchaseth a Supersedeas and doth not deliver it to the Sheriff till after the fourth County day and then he is Outla wed yet the Outlawry Outlawry is void Moor. n. 73. Ca. sa was delivered to the Sheriff of E. at 11 Clock and a Warrant thereupon made to the Bayliffs 4 hours after a Supersedeas comes to the Sheriff and a Warrant upon this Supersedeas delivered to the Goaler to set the parties at liberty if they were Prisoners who upon it were discharged Per. Cur. the Sheriff hath done well being the same day Lit. Rep. 296. Porter and Corbet Fi. Fac ' to the Sheriff to Levy the Debt and the Defendant brought Error and had a Supersedeas so much Mony as the Sheriff had received before shall go to satisfaction and a Venditioni exponas shall issue upon it Yel p. 6. Tocock and Honyman Supersedeas as to Goods seised is a Supersedeas Where a Supersed shall stay the Sale of Goods or not as to Sale but if the Sheriff hath received the Mony he must return it into Court 3 Keb. 174 Mud and Warren and it is not discharged by the Supersedeas And the case was a Supersedeas came before Execution but in truth after Goods seised and before Goods sold but after the Sheriff had taken security for the Mony and discharged the Execution Sheriff returns that he had received a Supersedeas out of Chancery in the nature of an Aud. Querela It is not good because the Record was not there 1 Rol. Abridg. 383. Merston and Mannory A Certiorari delivered to the Justices of the Peace after Restitution awarded and before it be executed by the Sheriff is not a Supersedeas to the Sheriff unless the Justices make a Supersedeas upon it which if they do not they are fineable for the Contempt Mo. Rep. 673. Note By the Stat. 16. and 17. Car. 2. c. 8. All stays of Execution by Supersedeas on VVrits of Error after Verdict are taken away but the other remains as they did Aud. Quer. on escape where it lies or not or upon other Execution by the Sheriff not well made and delivered Vide infra sub titulo where the Escape of one shall be a discharge of the other or not Audita Querela is an Equitable Writ and not to be allowed without Equity If one in Execution escape of his own wrong he shall never have Audita Querela to discharge himself and the Goaler may retake him but if he escape with the consent of the Gaoler the the Gaoler cannot take him again and if he do the party shall have an Audita Querela Cro. Car. 240. Robinsons Case 1 Rol. Abridg. 307. Trevillian and the Lord. Roberts So if the Sheriff Arrests one in Execution and doth not retorn the Writ but suffers him to escape and upon the alias Capias he Arrests him again Audita Querela lies Mo. 57. n. 163. But where two were bound joyntly and severally one was condemned and taken in Execution after the other was sued condemned and taken the first escapes the other shall not have Audita Querela for there must be satisfaction in part 5. Rep. 67. Blomfields Case A word that is surplusage shall not avoid this Writ as in Arundels Case The Audita Querela comprehended that M. had recovered against the Plaintiff in Debt and that he was taken by Cap. ad satisfaciend at the Suit of M. by the Sheriff of G. who let him go at Large and on Issue upon the voluntary escape it was found for the Plaintiff And it was moved that the Writ of Audita Querela was not good for the words
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
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 Sheâ—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
the Hustings of the Sheriffs Courts of the City of London the Writ of Error to Reverse this Judgment must be brought in the Court of the Hustings before the Lord Mayor for that is the Superiour Court Pract. Reg. 124. 4 Inst 247. Direction of Writs Quodlibet breve quod tangit liberum tenementum dirigitur Majori Vicecomitibus alia brevia tantum Vicecomitibus The Two Sheriffs of London do each of them Sheriffs Courts when kept keep a Court of Record where they hold Plea of all Personal Actions and the two Prisons called the Compters belong to them And they have two Court-Days in every Week apiece For the Woodstreet-Compter on Wednesdays and Fridays for the Poultry-Compter on Thursdays and Saturdays In a Plaint of Debt levied before any of the Sheriffs the Custom is That the said Sheriffs Ore tenus send to the Serjeants of the Compter either to Summon or Attach the Defendant without Warrant and upon Nihil Retorned within the City that then the Serjeants and every of them by the Commandment of the Sheriff have used to Attach and Arrest the Defendant to have his Body at the next Court before the Sheriff at the Guild-Hall c. In this manner they certifie their Records But the usual practice is to Enter an Action in the Office for that purpose at one of the Compters which Action must be Entred with Care For it is the Original in that Court by which you must Declare and from whence there must be no Variance And when an Action is Entred then any one Of Entring Actions in Crmpters of the Serjeants may Arrest the Defendant and bring him into Custody until he find Bail to Answer the Condemnation which Bail is to be Bail taken by one of the Clerk-sitters The Defendant may be Arrested by the Custom Arresting by Serjeants of London after Entry of the Plaint in the Porters-Book before the Entry of it in Court before the Sheriff And after Plaint Entred the Serjeant may Arrest without Precept The Serjeant need not shew his Mace because Serjeant shewing his Mace he is sworn and known altho' not to the party and a known Bayliff need not shew his Warrant altho' demanded But in 6 Rep. 52. Countess of Rutland's Case a General Arrest by a Serjeant by shewing the Mace and touching his Body with it and 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 c. That the party may know c. In Escape the Defendant pleads the Custom of Escape London That the Mayor and Sheriffs of London have used to enlarge Prisoners that were Arrested in coming and retorning from their Courts having Causes there depending and sets forth a Plaint in London against the Defendant and that hether the Court can discharge one arrested who is coming and teturing to the Court. he was arrested and appeared and pleaded to Issue and as he was coming to Court to defend that Action he was arrested as is supposed in the Declaration And per Cur. the Court cannot discharge one arrested except he be arrested in the Face of the Court 1 Brownl 15. Wilson and The Sheriffs ef London CHAP. XXX The Sheriffs Duty as to the Assizes And as to Sessions of the Peace The Form of the Warrant made by the Sheriff or Undersheriff for Summoning the Assizes vide Dalton 196. A Schedule may be Filed to the backside of the Warrant wherein he shall set down the names of the Grand Jury and Petty Jury of Life and Death to whom he must give warning by his Bayliff The High Sheriffs themselves are to attend the Judges at the Assizes And also Stewards Bayliffs and other Ministers of any Liberties or Franchises c. shall be attendant to the Justices of Assize and Gaol Delivery of the same Counties wherein such Liberties and Franchises shall be And shall be fined by the Judges in case of failure Every Sheriff and all other persons which have the Custody of the Gaols or Prisoners for Felony ought to certifie the names of every of their Prisoners which are in their Custody for Felony to the Justices of the next Gaol Delivery upon pain of 5 l. for every default CHAP. XXXI Of Sheriffs and Officers Fees Remedy and Security for Fees Extortion Punishable What Assumpsit good as to paying Fees or not Of Sheriffs and Officers Fee AT Common Law a Sheriff might not take any Fees but it was Extortion But now he may take the Fees allowed by the Statute Cro. El. p. 654. Stanton and Sullyard The Statute is 29 El. c. 4. No Sheriff Under-sheriff Sta. 29 El. c. 4. of 12 d. in the Pound Bayliff of a Liberty or any of their Deputies shall either directly or indirectly take more for serving an Extent or Execution than after the Rate of 12 d. in the Pound for every 10 l. and 6 d. for every Pound above 100 l. on pain to forfeit treble Damages to the party grieved and besides 40 l. between the Queen and the Prosecutor This Act not to extend to Fees of Executions within Cities or Corporations Yet the Sheriff by the Equity of Stat. 23 H. 6. c. 10. he shall take 4 d. for every Warrant Winch. 21. Upon the words of this Statute it was a Question much Argued in Latch 17. 51. Welden and Vesey Jones 307. Lister and Bromley Cro. El. 335. Gurney's Case Cro. Car. 286. Lister's Case Winch. p. 21 50. Empson's Case where the Statute gives 12 d. in the Pound for the first 100 l. and if exceeds that then but 6 d. Whether this shall be taken but only 6 d. in the Pound for all that exceeds 100 l. or whether he shall have 12 d. for the first 100 l. and Six pence for the rest And it was Adjudged that he shall have 12 d. for every Pound of the first Hundred and 6 d. for every other Pound above the Hundred And so is the constant practice Tho' Hobart in Winch. 50. Empson's Case was strong against it and that the Sheriff shall have but 6 d. in the Pound As to the Proviso That it shall not extend to Executions within Cities or Corporations it was held That it was only to be intended for the executing Judgments given in the Courts of the said Corporation and not to the Sheriffs of Cities or Corporations for executing Judgments out of Superiour Courts Jesson Sheriff of Coventry's Case cited in Lister and Bromley Cro. Car. 287. Vide Latch 17 52. Poph. 173. Welden and Vesey The Case Argued In an Action upon this Statute of 29 Eliz. against the Sheriff for excessive Fees it was moved in Arrest of Judgment because it said ad Parliament ' tent ' per prorogat ' 15 Febr. 29 El. Stat. 29 El. when began and the Rolls appeared by Copy sworn 29 Oct. 28 Eliz the Parliament began and an Adjornment to 17 Nov. 6. and
to the Party and the Justices of Peace may Assess them but they ought first to enquire of the Damages by a Jury Therefore in Bumpsteads Case Cro. Car. 488. Indictment was against the Sheriff fór Extortious Fees on two several Indictments They awarded to the one treble Damages That is where he took of one 20 l. Extorsivè they awarded to the Party 3 l. and 40 l. to the King And on the other where it was found he took 8 s. 8 d. Extorsivè they awarded he should pay to the Party 26 s. 8 d. So a quadruple value and 20 Fine to the King And it was adjudged Error causa qua supra The Indictment must be contra formam Statuti Contra formam Stat. 23 H. 6. if they will proceed upon the Statute of 23 H. 6. id ibid. The Court were doubtful if this Statute extend to Extortions unless taken upon Arrest And Judgment was reversed The Sheriffs Bayliffs were indicted at the Indictment at Quarter Sessions Information Informers have the 3 l. Quarter Sessions for Extortion Jones 379. The King against Lamfern An Informer on Conviction of a Prisoner for Extortion or other Penal Law may have the third part of the Fine according to the Kings privy Seal for that purpose And he had so of 10 l. set on a Bayliff for 3 l. taken for Execution done to his person 1 Keb. 357. and pag. 487. Information was brought against the Keeper of the Gaol or Prison of the Castle of Maidstone for Extortion on the Statute of 23 H. 8. And it was found by Special Verdict that there is not any Castle at Maidstone but a Gaol and the Defendant was Gaoler there Per Curiam Judgment pro Querente 2 Rolls Abr. 211. Goodwin and May. In 2 Brownl 283. The Sheriff was committed to the Fleet for taking Illegal Fees 2 Browl. 283. A Serjeant of London was committed in Execution Commitment for taking illegal Fees Mitigation of Fâ—â—e for a Fine in Extorting Fees on an Arrest and a third part was allotted to the Prosecutor His VVife petitioned the Court to mitigate the Fine but they could not 3 Keb. 328. the King and VVelson The Sheriff of Suffolk was imprisoned for taking a Guinea there being only 2 s. due to him and he retorned two Guineas to the Plaintiff being double of what he had taken on the 3 Ed. 1. cap. 26. and so he was discharged 3 Keb. 714. Butlers Case Assumpsit and Consideration about paying Fees what shall be good or not If a Man assume for Money given to serve certain Process this is not a good consideration as being against Law For it is Extortion in the Sheriff to take it and unlawful for the other to give it H. 10. Jac. Boothby and Alport 1 Rolls Abr. 16. Shirley and Parker Ergo Cro. El. 654. is not Law Stamp and Sullyard Executor Sues Execution by Elegit and B. an Estranger as a friend to the Executor in consideration that the Sheriff will Execute the said Elegit presently and of 6 d. paid him by the Sheriff assumes to pay 60 l. to him whereupon the Sheriff Executes the VVrit This Consideration is against Law for the Sheriff ought to do his Duty without reward and this 60 l. is not any discharge of Sheriffs Fees due by the Statute being given by a Stranger and not exprest for them 1 Roll. Ab. By a Straâ—ger 16. Bird and Cage and tho' it was alledged that this Sum promised him is no more than what the Statute of 29 Eliz. allows him to take for his Fees yet that helps not the Case for that Statute only excuseth him for his taking Fees whereas the Common Law did not permit him to take any thing for the executing VVrits And the giving of 6 d. is no sufficient Consideration being joyned with the other that is unlawful Cro. Jac. 103. Mesme Case A. is Outlaw'd at the Suit of B. for Debt and B. Assumes in Consideration that C. an Estranger In consideration that C. an Estranger will arrest a Man will Arrest A. upon a Cap. Utlag ' that he will pay him 40s This is no good Consideration altho' he shews in his Declaration that he was after made a Special Bayliff to the Sheriff to Arrest him by a VVarrant directed to him This is Extortion and the Sheriff by such means may extort great sums for doing his Office And the Bayliff is the Officer of the Sheriff and his Servant 1 Roll. Abr. ib. Faldoe and Salter Jones Promise to a Stranger to procurâ— the Sheriff to arrest J. S. is good 65. Mesme Case Latch 54. Mesme Case But if a Promise be made to a meer Stranger to go to the Sheriff and procure him to Arrest S. J. this is a good Consideration so if one pray me to go with the Sheriff to Assist him in making Execution and Promiseth me c. it s good CHAP. XXXII Bonds or Covenant between the High-sheriff and Under-sheriff or other Officers What shall be good in Law or not And when said to be forfeited or not Bonds Covenants c. IF the Under-sheriff Covenant with his High-sheriff Difference between a Coâ—enant and a Bond. to save him harmless from all Fines and Amerciaments for any Escape and Covenants also That he will not execute any Writ of Execution above the Sum of 20 l. without Warrant from the High-sheriff This last Covenant is against Law and void yet the other is good but a Bond in such case is void in all For by the Statute of 27 Eliz. c. 12. the Under-sheriff takes Oath to execute all Process Hob. 15. Norton and Sims 2 Roll. Abridgm 30. mesme Case Vide supra tit Under-sheriff The Keeper of Ludgate gives Bond to the To save Sheriff harmless from Escapes Sheriffs of London That he should safely-keep the Prisoners committed to his Charge and should save the Sheriff harmless from all Escapes The Bond is good Quaere as to the last part Cro. El. 466. Hector and Gennâ—t Escape on Cap. Utlag being void because Retorned 10 years after it was awarded But it is not forfeited by Escape of one taken by a Capias Utlagat ' in Debt because the Capias Utlagat ' was awarded the 25th of Eliz. and was Retornable the 35th of Eliz. and so meerly void For every Capias ought to be Retornable the ensuing Term because of the mischief that otherwise might befal the Prisoner to be kept always in Prison and he might well let him at Large 21. H. 7. 16. 8. Ed. 4. 4. Dyer 175. Tho' peradventure this Arrest by force of this Process is excusable in False Imprisonment by the Sheriff yet clearly it s no lawful Imprisonment and as to the prejudice or benefit of a Stranger he shall never be said to be a Prisoner 14 H. 8. 16. 11 H. 4. 36. Debt on Bond to perform Covenants which Defendant not to let at large any Prisoner arrested in Debt Need not
Ejectment the cause was alledged and confessed and Venire fac ' issued to the Coroners ita qd the Servant should not intermeddle Moor 625. no. 853. A Retorn of a Venire by three Coroners where are four its Error at Common Law but holpen by the Statute Hob. p. 70. Venire fac ' was awarded to the Sheriff which was quasht for favour of the Under-sheriff who retorns the Pannel and a new Venire fac ' awarded to the Sheriff ita qd ' le Under-sheriff ne se intromittat It s no Error tho' it be not directed to the Coroners 1 Roll. Rep. 272. Walters Case Venire fac ' not to be awarded to the Coroner till there be a default in the Sheriff 1 Rolls Rep. 364. Venire fac ' may be awarded if the first be quasht for favour in the Under-sheriff 1 Rolls Rep. 272. The Authority of a Coroner and of what things he may enquire c. and the Order of such Enquiry and of what not 4 Rep. 41. Walkers Case Heydon 45. Vauxe's Case and Wig's Case 5 Rep. 109. Foxly's Case The Coroner may on Estrepment provide against Wast by taking the Posse Comit. Hob. 85. in Wast brought by the Sheriff Earl of Cumberland vers Countess Dowager As the Sheriff in his Tourn may enquire of all Felonies by the Common Law saving the death of a Man so the Coroner can enquire of no Felony but of the death of a Man and that super visum Corporis He shall also enquire of the Escape of the Murderer of Treasure Trove Deodands and Wreks of the Sea He ought to deliver the Inquisition of death taken by him at the next Gaol delivery or certifie the same into B. R. He hath power to bind over Witnesses to the next Gaol delivery in that County Besides the Judicial place he hath Office ministerial as a Sheriff viz. when there is a just exception taken to the Sheriffs judicial Process shall be awarded to the Coroner to execute the Kings Writs The Sheriff put in his Challeng to have a Venire fac ' to the Coroners because the Sheriff was his Master and concludes not issint favorable Yet its good Moor. p. 470. no. 853. The Parties being at Issue a Venire fac was awarded to the Sheriff and afterwards upon Entry quod vicecomes non misit berve a Venire fac ' was prayed and awarded to the Sheriff the Plaintiff had admitted him to be a person qualified to make the Retorn But per Cur ' Because that being awarded upon the Roll is but as a Continuance and there was not any Venire fac taken forth and it s but matter of Form to make such a Continuance It was held well enough Cro. Jac. 35. Willoughby and Egerton Cro. El. 853. Cro. Jac. 35. Upon Challeng to the Sheriff a Venire fac was awarded to the Coroners and retorned and at the Nis Prius a Tales granted by the new Sheriff its Error Mo. p. 356. n. 482. Morgan and Wye it was held a manifest Error Cro. El. 894. Corn and Paslow and not aided by the Statute of Misconveyance of Process For it s a Mis-tryal Process once directed to the Coroners shall never after in the same Cause be directed to the Sheriff tho' the same Sheriff which first was be removed Mor. 356. n. 422. But a Quaere is made of this in Hob. 64. Web's Case Demeanor of Coroners as to Outlawrys Outlawry was reversed because the Names of the Coroners was not put to the Judgment 1 Rolls Rep. 266. In Outlawry the Judgment was Ideo per judicium A. B. c. Coronat Utlegat ' est and saith not Coronat ' Comit ' praed ' and for this the Outlawry reversed 2 Rolls Rep. 82. Coroners are Judges in Outlawries in County Courts 4 Rep. 72. Mitton Case 9 Rep. 119. Lord Sanchar's Case The Statute of 4 Ed. 1. de Officio Coronatoris provides that such Inquest shall be villarum proxim ' adjacent Per Cur. it s not requisite to shew they are the next Vills it shall be intended if the contrary appear not At the Common Law it is villarum adjacent and this Statute hath no negative words and so the Tryal at Common Law remains 2 Siderfin 144. Barclay's Case Where a Man shall not have Averment against what the Coroner affirms upon his Examination The Court agreed a melius inquirend after an Office post mortem which is originally to the Sheriff But after an Inquest of a Coroner super visum Corporis c. that he died of a Megrim no melius inquirend ' can go the Original not being before the Sheriff especially not until the Inquest be quasht And there it s but ad informand ' Conscientiam Traversable as Barclays Case who drowned himself and the Coroner refused to hear the Kings Witness and thus in case of miscarriage and quashing the former Inquest they will grant a new one 1 Keb. 859. the King against Stanlack Coroners Inquest A flight found by the Coroners Inquest is final as to Forfeiture of Goods and cannot be tryed again Hob. p. 318. If one is killed in a Village and the Coroners make no Inquest the Village must be amerced 1 Keb. 278. Lord Buckhurst and if there were an Inquest it must be retorned per Certiorari the Coroner is to Retorn his Inquisition at the next Gaol delivery and because he did not the Court Discharged him and set 100 l. upon his Head they having found it Murder 280. The Coroner ought to sit upon the Body of every Prisoner that dies in Prison 3 Instit. 52 91. Where the Body of a Felo de se cannot be found trait devant les Coroners his Goods shall be Forfeit and found before the Justices of Peace 1 Roll. Rep. 272. Melius Inquirend ' upon the death of a Man directed to the Coroner and not to the Sheriff because none but Coroners can enquire super visum Corporis But for the Misdemeanor of the Sheriff it may be quasht and a new one granted the Coroner must take the Evidence in Writing and must bring his Examination into Court upon occasion Mod. Rep. p. 82. Process may be awarded against a Coroner to come in to mend the Inquisition or may be served with a Rule to attend to amend matters of Form but not matterr of substance as the Inquest found G. Felonice seipsum submers fuit but saith not he cast himself into the Water But Felonice submersus is the Substance Siderfin p. 209. the King and Glover 225. vers King and Harrison Inquisition before a Coroner without saying Legal homin Villar prox adjacent but Legal homin ' Paroch de A. yet good Commission to the Sheriff in the nature of a Melius Inquirendum to enquire of the death of a Man when it had been found before the Coroner before is against the Statute of 28 Ed. 4. 9. But there are divers Presidents since that Statute of such Commissions awarded The Court was moved for a Melius