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word_n	action_n	case_n	plaintiff_n	6,385	5	10.7168	5	true

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

may break his House to take him for the Writ is for his person 1 Rol. Rep. 339. Briggs's Case If the Party Defendant be Attached or Distrained by Process out of any Court of Record or County by force of a Justicies c. Hundred Court or any Court Baron and make default the Goods or Issues are forfeited and upon the Attachment the Sheriff or other Officer may take the Goods with them * On Attachment the Sheriffs ought to Retorn the certainty of the Goods and why and the value And this is the Reason that upon the Attachment the Sheriff or other Officer ought to Retorn the certainty of the Goods and the value and it is not sufficient to Retorn that he hath Attached or Distrained the Defendant by Goods to such a value and so upon the Distress the Issues must be retorned in certain because they are upon default to be forfeited vide supra tit original Process 3 Inst. 228. The Sheriff is to bring an Attachment upon the Writ of ne exeat regnum until he finds Sureties 1 Rol. Rep. 313. Where and in what Cases the Sheriff is to be Amerced The Sheriff is to be amerced for the faults of For the faults of his Special Bayliffs his Special Bayliffs for the Sheriff is the Officer to the Court and not they But if the Sheriff Retorn quod mandavit ballivo c. qui respondit c. if the Retorn is sufficient and a default is for not doing according to the Retorn the Bayliff shall be amerceed and not the Sheriff As if the Where the Bayliff shall be amerced and not the Sheriff Sheriff Retorn quod mandavit ballivo Libertatis c. qui respondit qd ' cepit J. S. according to the Writ and he shall be here at the day if he bring him not at the day the Bayliff shall be amerced and not the Sheriff But if the Chamberlain of the County Palatin of Chester makes an insufficient Retorn to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because he is the Officer responsible to the Court. Now in Palmer and Marshes Case 1 Brownl 36. If the Sheriff Retorn quod mandavit ballivo Libertatis qui sic respondit and retorn an insufficient Retorn in Law the Sheriff shall be amerced for he might have retorned ballivus nullum responsum dedit * Amerced for the insufficient Retorn of the Bayliff of a Liberty If the Sheriff Retorn feci retornum istius brevis G. L. ballivis Libertatis G. qui habent retornum brevium Executionem eorundem qui mihi re●●onderunt qd ' istud mandatum adeo tarde receperun● per manus Attornat ' sequentis qd ' nihil inde facere potuerunt the Sheriff shall be amerced for this Retorn for he ought to have Retorned it to the Bayliff time enough for them to serve it Trin. 39 El. B. R. Palmer and Marsh 1 Ed. 1. 13. b. If no Retorn be made for part by a Bayliff of a Liberty the Sheriff shall be amerced As in a Praecipe qd ' reddat if at the grand Cape the Sheriff Retorn quod mandavit J. Bayliff of a Franchise c. who retorned that he had taken the Land into the Kings hands and speaks nothing that he had summoned the Tenant as the Writ commands him the Sheriff in this case shall be amerced for that no Retorn is made of part 4 H. 6. 25. b. By the Stat. of 27. H. 8. 24. Amerciaments for insufficient Retorns of Writs made by Baliffs of Liberties shall be set upon the Heads of such Bayliffs and not upon the Sheriff nor upon the Lord of the Franchise If the Sheriff be amerced by the Court for the Increase of Amerciaments not doing a thing belonging to his Office and yet he continues to neglect to do it contrary to the Rule of the Court the Court may increase the Amerciaments till he do his Duty therein But Amerciaments set upon the Sheriff upon the Amerciament estreated with a Respectuat motion of the Party if they be not Estreated into the Exchequer may be with a Respectuat ' that is be respited if the Party grieved who caused him to be amerced will consent thereunto otherwise not Pract. Reg. p. 18. If upon a Latitat the Sheriff do Retorn a Cepi Amerciament for not Retorn Corpus and the Party arrested on this Process doth not appear at the day of the Retorn the Sheriff may be amerced by the Court yet tho' the Sheriff be amerced if the Party arrested do appear within a week after the day he ought to have appeared the Amerciament may be taken of the Sheriff Pract. Reg. 18. If a Debt be levied by Fieri fac ' and delivered to the Plaintiff and the Writ is not retorned yet the Execution and Sale is good but the Sheriff shall be amerced for the Non-retorn of the Writ 5 Rep. Hoes Case It was moved to have the Sheriff amerced for Not for retorning too small Issues retorning too small Issues Coke said we cannot do so for saith he it doth not lie in our Conisance whether they are too small or not but you are put to your Amerciament 1 Roll. Rep. 339. Goates's Case A Bishop shall be amerced for an Escape 100 l. Amerciaments for Escape of persons convict a Gaoler shall be amerced for a negligent Escape of a Person Attaint 100 l. and if one convict 5 l. 2 Inst 28. An Exigent which was delivered of Record to the Sheriff was imbesilled and the Copy thereof was retorned by the Sheriff and he was amerced for the Retorn of the Copy at 30 l. and for imbesilling the Exigent at 20 l. 5 H. 4. 5. CHAP. XXVI Remedy against Sheriffs Bayliffs c. for Male-feasance As imbesilling an Exigent for entring into a Corporation which had Retorna Brevium For not delivering a Supersedeas to the new Sheriff For concealing or substracting a Writ For refusing sufficient Bail and forcing to find extraordinary Bail For taking sufficient Bail For not bringing Money levied by Fieri fac ' into Court. And Stat. of Limitations pleaded Remedy against Sheriffs Bayliffs c. IF the Sheriff in his Court quash an Essoyn Erroneously For quashing an Essoyn without the consent of the Suitors Action on the Case lies against him for the Party cannot have his false Judgment on this 26 Assize 45. If a Distring as Issues to the Sheriff to Distrain the Defendant in the Action by all his Lands and Chattels c. and the Sheriff Retorns trop petit Retorns Trop petit Issues Issues too small Issues altho' an Averment lies by the Stat. W. 2. c. 43. Yet the Plaintiff may well have his Action on the Case against the Sheriff because it appeareth by the words of the Statute that this is a false Retorn and the words are qd ' Distringeret by all his Lands and Chattels Ita qd '

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 She●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

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

by fresh persuit no more though the Information be depending before the taking so that the Officers diligence appear 2 Keb. 384. the King against Sir J. Lenthall Fresh persuit Pleaded The Plaintiff counts of an escape in London and the Defendant Justifies the retaking in Devon so that the escape at London is not answered it s naught upon Demurrer but when the Defendant P●ac● by his Replication denies not the fresh Suit but by Protestation relies upon this that he was out of the view which is not material for it is not the form of Pleading to say he had him in his view c. it appears not to the Court that he had cause of Action now this Bar is sufficient for the matter but insufficent for the form and there being no Demurrer but a Replication no advantage shall be taken of the Bar for matter of form 3 Rep. Ridgways Case Popham p. 41. Traverse That he died after fresh persuit ●ut saith not ante 〈◊〉 bille mesme case Action on the Case for voluntary escape Defendant Pleads he escaped in November by negligence and Traversed not voluntarily and that he freshly persued and took him and that postea videlicet 27 Aug. he died to which the Plaintiff Demurred because before the escape and especially for the void Traverse But Per. Cur. the alledging the voluntary escape is immaterial and the Sheriff chargable without it and he need not Traverse the voluntary escape but because he doth not say he died ante exhibitionem billae Judgment for the Plaintiff 3 Keb. 55. Read and Bovey The Plaintiff declared of an escape voluntary the Defendant shews a negligent escape ' its good without a Traverse Latch p. 200. Harvey and Reynell In Debt on escape Plaintiff declares that the Defendant Sheriff of Devon suffered one C. who was in Execution to escape in London 18 December Defendant Pleads that the said C. escaped the 16 December in Com' Devon and that he freshly persued him and retook him the 17 December and reteyned him again in Execution absque●●c that he is guilty alit ' vel alio modo On Defendant must answer to the Escape mentioned in the Declaration as to time c. Traverse alit vel how extend alio modo On nil debet in Escape which may be given in Evidence this it is Demarred because the escape is supposed to be the 18 December and he Pleads the escape 16 December and the retaking the 17 December and so he answers not to the escape mentioned in the Declaration for the Traverse aliter vel alio modo doth not answer to the Time but to the manner of any thing alledged and Per Cur. the Plea is ill Cro. Eliz. 439. Ridgways Case On nil debet Pleaded in escape fresh persuit may be given in Evidence so a release or any thing that destroys the Duty Vid. supra Tit. Evidence 3 Keb. 308 Lutterel and Mosedell Now as to other Pleas and the formality of pleading what shall be good or not the Cases following are of great consideration to instruct us in that useful Learning Debt for an escape is not within the Stat. of Statute of Limitations Limitations tho Action on the Case is the words of the Statute are All Actions of Debt grounded on any Lending or Contract without special●● shall be brought within six years 1 Siderf 205 206. 1 Sand. 38. Now first This Action is not founded on any Lending or Contract here is a Duty created by the Law without Lending or Contract 2 Inst 388. 2. This Action is founded on a Specialty viz. on a Statute Law for at Common Law no Debt on Escape lay against a Gaoler c. of one out of Execution and the Statute of 1 R. 2. c. 12. gives the Action of Debt against the Warden of the Fleet and this Statute by Construction extends to all other Gaolers and Sheriffs 1 Sand. 37 38. Jones and Pope Acknowledgment of Satisfaction on Record is Acknowledgment of Satisfaction on Record a good Plea The Sheriff brought an Action on the Case against J. for making his escape out of Execution Defendant pleads Confessing all the Matter and that after this Escape he at whose Suit he was condemned had acknowledged satisfaction on Record To which it was demurred Per Cur. The Plea is good because the Defendant is to be charged for that the Plaintiffs are chargable with the Debt and not otherwise and the Defendant hath pleaded Satisfaction acknowledged on Record which may by his means and is not denied for otherwise the Plaintiff might have shewed the Special Matter by Replication Cro. Eliz. 237. Salteston and Payne Accord with satisfaction is no Plea In Scire Accord with satisfaction fac on Judgment in Escape on Oyer the Defendant pleads Executio non because that after the Judgment the Defendant assigned the Obligation of Security of T. the party who escaped which the Plaintiff received and accepted To which the Plaintiff Demurred And per Cur. Accord with Satisfaction is not pleadable after a Judgment 3 Keb. 255. Poole and Mosedell Nul tiel Record is a good Plea Debt on Escape against the Sheriff upon a Nul tiel Record Capias Utlagat ' after Judgment Defendant pleads there was no such Record of the Debt and Damages It is a good Plea on Demurrer 1 Brownl 51. Maddox and Young Hob. pag. 209. In Debt on Escape one may plead That the Command of the Plaintiff Plaintiff commanded him to let him out of Execution Cro. Car. 329. in Vesey's Case In Scire fac on a Recognizance as Bail in a Escape by consent of the Plaintiff pleaded Writ of Error in the Exchequer Chamber The Defendant pleads That the Plaintiff sued a Capias ad satisfaciendum out of the Kings-Bench to the Sheriff of Middlesex and he was taken in Execution thereon and suffered to escape by the Plaintiffs consent The Plaintiff demurs because they do not lay a place where the Court was held nor where the party escaped by Consent 2 Keb. 567. Mod. Rep. 19. Prinn and Smith Payment of the Money to the Marshal is no Bar but payment to the Sheriff on a Fieri fac is good for he is commanded to levy the Money c. but no such Authority is given to the Sheriff Sir Tho. Jones p. 97. Taylor and Baker In Escape the Defendant pleads a Release of him who recovered to the Prisoner being in Execution it s holden no Plea Nil debet in Debt on Escape 19 H. 6. 14. As to Traversing and Forms of Pleading In Trespass and Imprisonment the Defendant That he escaped by the Sheriffe License is good without a Traverse Justifies by virtue of a Capias and the Plaintiff did afterwards escape and he being Sheriff did follow him by virtue of the said Warrant and took him upon the Capias The Plaintiff replied He escaped by License of the Sheriff and Traverseth the latter taking by virtue of the

Remedy And his pleading in an Action brought against him Note After the Statute of 23 H. 6. the Sheriff cannot make a Special Retorn in a Capias but only a Cepi Corpus or Non est inventus And the Statute tho' it compells him to take Bail yet it does not alter the Retorn The design of the Statute is to provide against the Extortion of Sheriffs being obliged to Retorn Cepi paratum habeo and yet to lett the Defendant at large and therefore there is no reason he should be Charged for not having the Body at the Day The Retorn of a Paratum habeo is in effect no more than that he hath the Body ready to bring into Court when the Court shall Command him And for his False Retorn of Paratum habeo he is amerceable to the Court till he do bring in the Body and the Common Practice is so but that is nothing to the party and no Action lies against him by the party And therefore vide Page and Tulses's Case Now as to the sheriffs taking Insufficient bail and refusing to take Sufficient bail the Law stands thus If the Sheriff refuse to take Reasonable Bail an Action on the Case lies against him Siderfin p. 23. If the Sheriff refuse to take Bail he is liable to an Action of False Imprisonment If the Sheriff take Insufficient Bail yet no Action lies against him by the party for he is Judge of the Bail Vide supra Therefore In Action on the Case against the Sheriff for Escape the Defendant pleads the Statute of 23 H. 6. that he Lett H. to Bail and took Reasonable Sureties A. and B. persons having sufficient within the County The Plaintiff Replies Absque hoc that he took Bail having sufficient within the County The Defendant Demurrs and Judgment pro Defendente Mod. Rep. 227. Ellis and Yarborough Where Trespass on the Case was brought Sheriff pleads Stat. 13 H. 6. against the Sheriffs of Middlesex for suffering an Escape and Retorning Cepi corpus and Paratum habeo which was false The Defendants plead That the party Arrested put in J. B. and J. C. Sureties and plead the Statute of 23 H. 6. and they took Bond according to the Statute and so let him Escape Per Cur ' The Plea is good for the Reasons aforesaid So in Bowles and Lassell's Case if the Sheriff Retorn a Languidus in Prisona having taken Bail secundum Stat ' it was adjudged that tho' the Defendant was at Large yet no Action lay against the Sheriff All this must be understood of Mean process for else this would be to frustrate the Statute of 23 H. 6. Cro. El. 852. Bowles and Lassels But Note Then it must appear to the Court on the Record that it is on the Statute of 23 H. 6. and not a Retorn at Common Law Not Guilty And the Sheriff may in such case plead Not guilty Siderfin 22. Allen and Robinson But if the Sheriff demurrs to the Declaration If the Sheriff demurr al' Narr ' the Action is against him then the Action is against him For the Declaration shall be taken to be true upon the Demurrer For the Statute is private and the Court will not take notice of it unless it be pleaded But if the Defendant had pleaded this specially or if he had pleaded Non culp ' he might have had advantage of the Statute and oufted the Plaintiff of his Action Cro. El. 624. Barton and Aldworth Siderf Parker and Welby Mod. Rep. 244. 244. Page and Tulse p. 33. Franklyn and Andrews Mo. n. 427. Cro. El. 460. Gardner and Langton By these Words in the Statute That if the Sheriff Retorn a Cepi Corpus he shall be chargeable to have the Body at the Day of the Retorn c. it is intended only that he may be Amerced to the King for not having the Body at the Day 2 Sand. 60. Postern and Hanson An Action on the Case against the sheriff for not taking Reasonable Sureties not having sufficient Estates in the said County and Retorning Cepi corpus and yet not having the Bodies ready by the day lies not forhe is compellable to lett to Bail and if he have not the Body he shall be amerced And because he shall be amerced the Statute gives him Advice to take sufficient Sureties for his own Indempnity 2 Sand. 59. Postern and Hanson In Action on the Case for taking Insufficient Sheriff pleads He had taken sufficient Bail he need not say where nor Traverse the Intent bail The Defendant pleads he had taken sufficient Security He need not say where nor need he traverse the Intent to deceive the Plaintiff of his Debt For it is not issuable at what place the Security was taken and therefore need not be shewed and the Intent is not Traversable and had the Defendant pleaded so it had been ill Siderfin 96. Bentley and Hore Action on the Case against a Sheriff for taking How the Sheriff is to plead on 23 H. 6. c. 10 Insufficient bail The Defendant pleads the Statute of 23 H. 6. c. 10. The Plaintiff Demurs to the Bar because the Sheriff had not alledged that he had not dismissed one B. whom he had taken by sufficient Mainpernors but only alledgeth this by way of Implication and not positively 2 Sand. 58. Postern and Hanson Of Bail Bonds being Discharged or Assigned In Debt on Sheriffs Bond the Principal being Where the Bail Bond shall be discharged paying the Americaments and where not in Prison may be admitted to plead discharging the Amerciaments and this is the course of the Court where the Prosecution is fresh But where the Defendant in the Original Action viz. the Principal is become insolvent Per Cur ' The Bail Bond is the only remedy and they will not discharge that on Ordinary Rules In this Case North prayed the Continuance of Process on the Bail Bond in regard since the default of the Appearance of Fludd the Principal he is become Insolvent by suffering several Judgments But Jones said That the Bail appeared on the very day of the Retorn and the default is the Plaintiffs own and the Bond not above an year old And per Cur ' paying the Amerciaments and Costs the Bail were discharged and the Principal admitted to plead 2 Keb. 545 553. Fludd and Williams The Surety paid the Debt and he sued the Bail Bond sued by the Surety who paid the Debt and the Coroners took a New Bond. Bail Bond assigned by the Sheriff on which a Writ being directed to the Coroners they took a New Bond and assigned it and they prayed the Money out of the Coroners hands for the Surety Per Cur ' The Coroner cannot discharge his Bail Bond no more than the Sheriff and they ordered the Principal Debt to be paid 2 Keb. 287 400. Foster's Case A Bail Bond was discharged upon Motion Discharged by payment of the Money before the Retorn of the Writ Assigument of the Bail

are that the Plaintiff capt fuit virtute brevis nostri judicialis and this word judicialis is not in the Register but only brevis nostri de Capiendo yet adjudged good 1 Leon. 73 Arundell and Morris Audita Querela on escape of the Testators Creditor and recovery against the Marshal Defendant protestando that the Plaintiff escaped after the Defendant recovered against the Marshal and the Plaintiff did not pay the Marshal absque hoc that the Marshal satisfied and paid the Testator This case differs from all others of escape by consent of the Gaoler this being not purely Debt which goes over to Executors but is grounded on a Tort general by the death of the Gaoler the Court concluded that recovery against non payment to the Marshal was no discharge of the Plaintiff in this Audita Querela But Adjornatur to take Issue on payment by the Marshal to the Creditor viz. the Defendants Testator 3 Keb. 763. Gardner and Sedgwick One was Outlawed in Debt and taken upon Outlawry Pleaded to Audita Querela where 't is good or not the Capias and committed to the Fleet and the Warden suffered him to go at Large voluntarily and after the Executor of the Plaintiff in Debt takes him in Execution again upon a new Writ and upon this he brought Audita Querela and shews this matter and Outlawry in the Plaintiff in the Audita Querela was pleaded Per Cur. it is a good Plea because this Writ is not directly to Reverse the Outlawry as Error is but is founded upon a Tort scil upon the Escape and not upon the Record only aliter in Error or Attaind Outlawry is no Plea nor is there any difference as to this Case where the Outlawry is at the Suit of the Defendant or of a Stranger Vid. other good reasons Sider 43. Jason and Kete If upon Elegit the Sheriff takes an Inquisition and there are found several Lands subject to the extent and found of the several values and the Sheriff Retorns he had delivered some of the said Lands in Particular for the Moieties where it appears that according to the values found an equal Moieties is not delivered to the party who recovers but more than a Moiety this is not void neither is it a Disseisin by the Entry but only voydable by an Audita Querela Tr. 15. Car. 1. B. R. Rowe and VVeeks If A. recover against B. Debt or Damages and Elegit is granted to the Sheriff to extend the Moiety of his Land which is ancient Demesns altho it be admitted that this is not extendible yet B. may not avoid this by Entry without Audita Querela because the Sheriff had a Warrant to deliver the Moiety of half his Land and this was his Land Ergo not void Hob. p. Cox and Barnaby CAP. XIX Of Elegits and the Sheriffs Duty therein and of the Retorns thereof The difference of it as to Lands and Goods how to be managed by the Sheriff that it may be well executed and what thing may be executed or not Of the Inquisition Retorns of Elegit how to be made Where a new Elegit shall be had or not Of extent by the Bayliff of a Liberty The Sheriffs Office about Execution for the Kings Debt of Stat. Merchant Staple Recognizance The difference of the Retorns Retorns of Scire fac the Sheriffs demeaner as to Outlaries and Capias Utlagatum and the Retorns Of Elegits c. ELegit is a Judicial Writ given by the Stat. The nature of an Elegit as to Lands or goods VV. 2. c. 18. either upon a Recovery for Debt or Damage or upon a Recognizance in any Court. By this Writ the Sheriff shall deliver to the Plaintiff omnia catalla debitoris exceptis bobus afri● Carucae medietaten terrarum and this must be done by Inquest taken by the Sheriff for the valuation of the Goods and Lands ought tobe first found by the Inquisition of a Jury VV. 2. c. 18. gives the Elegit so that in Elegit the Sheriff may take in Execution the Moiety of the Lands of the Conizor c. and all his Goods and Chattels except as aforesaid and was to deliver them to the Conisee or he who recovers upon a reasonable extent or price until the Deb● be satisfied and the Sheriff shall deliver him the Seisin of the Land and he is called Tenant by Elegit and shall do no VVaste 4 Rep. 47. The Elegit as to Goods is in effect but a Fieri fac and therefore if there be no Lands and Execution be upon Goods and they are not sufficient he may have a Capias aliter if Lands be extended If one prays to have Elegit and the Sheriff Retorns he has no Lands and he prayed a Capias but the Court granted it not the cause is the Entry in the Roll is that he hath chosen the Execution of the Moiety of the Lands which he must stand to 30. Ed. 3. But the Law now is not so for if the Sheriff return Nihil the party may have a Capias Hob. 57. Elegit how to be managed by the Sheriff that so it may be well Extended and what things may be executed or not As to what things may be extended or not you must know All the Goods and Chattels in which are included Leases for Years Leases for Years shall be extended except Oxen and Beasts of the Plow the Moiety of the Lands Vid. infra how it shall be done A Rent seck where there is not any Reversion A rent seck cannot be delivered ut liberum Tenementum Cro. Eliz. 656. VValshal and Heath Annuity Certain is extendible by Elegit Cro. Annuity Jac. 78. York and Twine Lands in Ancient Demsne may be delivered Aunc demesne in Execution by the Sheriff by force of an Eelegit out of the Kings Court for the Land it self was never put in plea directly in the Kings Court Vid. the Million Act. 5. Rep. Aldens Case Hob. 47. Cox and Barneby If the Lands descend to an Infant the Sheriff shall cease to extend As to the Inquisition Note If the Inquisition in Elegit be void in Inquisition void in any part void in the whole any part its void in the whole and the whole must be quasht and not quoad that only so if more than a Moiety be delivered on the Elegit it is void for the whole 2 Keb. 582. Harris's Case Siderfin p. 91. Berry and Wheeler It was moved in the said Case of Harris to quash an Inquisition of Elegit upon Judgment in B. R. because it appears not in what County the Lands extended were but Monmouth being in the Margent and directed to the Sheriff there and the Retorn made by him it shall be intended in Monmouth 2 Keb. 582. Upon a Writ of Extendi facias upon a Statute The Jury cannot alter a Verdict in substance if the Sheriff Impannel a Jury and they deliver the Verdict to the Sheriff in

were with Child to Certifie how long time in their Judgments quando sit paritura The Sheriff Retorned That she was Twenty weeks gone with Child and that within Twenty weeks fuit paritura Whereupon another Writ issued out of the Common-Bench commanding the Sheriff safely to keep her in such an House and that the Doors should be well guarded and that every day he would cause her to be viewed by some of the Women named in the Writ wherein they were named and that when she should be Delivered some of them should be with her to view her Birth whether it be Male or Female Upon this the Sheriff Retorned He had caused her to be kept c. and that such a day she was Delivered of a Daughter Cro. El. 566. Willoughby's Case But in Theaker's Case the Woman to be Inspected was a Feme Covert to a second Husband and she was with Child by the first they took not the same course but left her with her Husband he entring into Recognizance that she should not remove from the House wherein they inhabited and that one or two of the VVomen Retorned by the Sheriff should see her every day and that two or three of them should be present at her Travail Cro. Jac. 685 686. Theaker's Case The Sheriffs Office about Partition and how he is to demean himself therein At the time of the Partition made the High-sheriff He must be upon the Land in person must be upon the Land in person And if Exception be taken at the Bar before the Writ be retorned and filed a New Writ shall be awarded but if the Sheriff in such case Retorneth That he was there in proper person No Averment against the Retorn fil●d and this Retorn be received and the Writ filed the party cannot Aver against the Retorn nor shall have Error Cro. El. 9. Clay 's Case In a Writ of Partition if Judgment be given quod partitio fiat and upon this a VVrit is directed to the Sheriff to make partition before that this is Executed and Retorned no VVrit of Error lies upon the first Judgment because before the last Whe● Writ of Error lies upon P●rtition or not Judgment which ought to be Qd ' partitio praed ' foret forma stabilis in perpetuum the Plaintiff may be Nonsuited or he may upon the Sheriffs Retorn suggest to the Court That the Partition is not equal and also have a New Partition 1 Rolls Abridgm 750. The Lord Berkley and the Countess of Warwick The Form of the Retorn of a VVrit of Partition vide Dalt c. 68. Sheriffs Office about removing a Force The party grieved may have a Writ supon the Statute of Northampton 2 Ed. 3. cap. 3. directed to the Sheriff to remove the Force and upon this the Sheriff may imprison and justifie in False Imprisonment as was Levett and Farrar's Case and so may the Under-sheriff as that Case was In False Imprisonment against the Sheriff the Defendant Justifies for that a Writ upon the Statute of Northampton was awarded 30 July 32 Eliz. to the Sheriff and Justices of the Peace to remove a Force and that he being Under-sheriff by the Commandment of the Sheriff went to the place and found the Force and because he was not able to remove it he made Proclamation That every one should depart and leave their Weapons c. and afterwards he enquired of the Force and it being found that the Plaintiff was one of them he arrested him and imprisoned him Cro. Eliz. 294. Levett and Farrar Per Cur. The Plea is good And these Points Plea were Adjudged 1. When the Writ is directed to the Sheriff by the name of his Office and not by a particular Name nor doth expresly Command him to do it in person the Under-sheriff may do it Done by the Under-sheriff for its a Writ grounded on the Statute and not a Commission for then it had been otherwise 2. He may Arrest and Imprison at another time upon the Enquiry tho' the Force were removed before his coming and he may Enquire who did it 3. It shall be intended he continued Under-sheriff when in the same Plea it is alledged he was Under-sheriff and the contrary is not shewed 2 Roll. Rep. 178. If when the Sheriff comes to remove a Force if then one hide himself in the Corner of the House to the intent c. this is Force The Sheriffs Office in a Vi Laica removenda In False Imprisonment the Defendant Justifies Justifies in False Imprisonment because a Writ De vi Laica removendâ came to the Sheriff to remove the Force and that the Sheriff came to the House and the Defendant in Assistance of him c. and that there the Plaintiff in domibus praedict ' ad pacem dom ' Regis disturband ' c. eos residentes invenerit Plaintiff demurs 1. The Writ is Si aliquos in ea parte resistentes invene●itis and it is not here pleaded That he found him resisting in e● parte i. e. to keep possession But per Cur. the words in e● parte ought to be necessarily intended For when he saith He came to the House to remove the Force and the Plaintiff resisted him then sequitur that he resisted him in removing the Force 2. The Writ is aliquos and the Defendant had shewed Resistance by one only But per Cur. aliquos includes aliquem 3. He doth not aver that it was vis Laica armata potestas But per Cur. it appears there was Force and the very Resistance was a Force 2 Roll. Rep. 177. Parson Clossey's Case Upon a Vi Laica removenda if the Sheriff Retorn Non inveni vim Laicam nec armatam potestatem the Lessee shall have Restitution in B. R. Restitu●ion upon Affidavit that he was kept out with Force Upon this Writ the Sheriff ought not to remove the Incumbent who is in Possession of the Church be it by right or wrong for the Sheriff is only to remove the force and is to suffer the Incumbent to enjoy his Possession More 462. Roberts and Agmondsham How Sheriff is to Demean himself in Proclamations In real Action Vid ' Dower As to Acts of Parliament in former times Proclamations ought to be with Writ to the Sheriff to Proclaim 2 Rolls Rep. 172. Yet if a Statute be not proclaimed the Offences against it are punishable Dr. and Stud. 146. b. How the Sheriff shall Demean himself in a Writ of Inquiry of Wast And of the Sheriffs Retorn thereupon And of the Writ of Estprement In an Action of Wast upon Issue joyned a Jury is Summoned to try the Cause and in the interim to view the place wasted and the Sheriff is to retorn the view As to the President vid. 2 Sanders 254. Grene and Cole The Sheriff must go in person to the place The manner of the view wasted by Stat. W. 2. c. 14. accedat ad Locum vastatum together