Project Gutenberg's The Office of Bailiff of a Liberty, by Joseph Ritson
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Title: The Office of Bailiff of a Liberty
Author: Joseph Ritson
Release Date: February 26, 2017 [EBook #54235]
Language: English
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Transcriber's Note.
Apparent typographical errors have been corrected. The use of hyphens has
been rationalised.
Italics are indicated by _underscores_. Small capitals have been replaced
by full capitals.
Square brackets, which indicate sidenotes and footnotes, are also present
in the text.
There are several words in Anglo-Saxon script. These are indicated by
=equal signs=. The individual characters have been replaced by their
modern equivalents: "wynn" by "w", and so on.
THE
OFFICE
OF
BAILIFF
OF A
LIBERTY.
BY JOSEPH RITSON, Esq.
BARRISTER AT LAW,
LATE HIGH BAILIFF OF THE SAVOY.
Ballivus cujuscunque manerii esse debet in verbo verax, et in opere
diligens ac fidelis, ac pro discreto appruatore cognitus, plegiatus, &
electus, qui de communioribus legibus pro tanto officio sufficienter se
cognoscat, et quòd sit ita justus, quòd ob vindictam vel cupiditatem non
quærat versus tenentes domini, vel aliquos sibi subditos, occasiones
injustas, per quas destrui debent, seu graviter amerciari. FLETA. _l. 2.
c. 73._
LONDON:
PRINTED BY A. STRAHAN,
LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY;
FOR J. BUTTERWORTH, LAW-BOOKSELLER,
FLEET-STREET.
1811.
ADVERTISEMENT.
The little work now offered to the public was originally compiled by Mr.
Ritson about the same period as similar treatises, on _The Office of
Constable_, and _The Jurisdiction of the Court-Leet_, published in his
lifetime. The author's attachment to the subject, it is believed, induced
him to defer the publication of the present digest, in the hope of
increasing its value by ampler information or more diligent research; and
this object appears to have been sufficiently pursued, during the latter
years of the author's life, to answer his wishes, as the work was left by
him in every respect ready for the press.
The editor feels it due to the memory of his much honored and lamented
uncle to add, that the recent publications to which Mr. Ritson's name,
from interested motives, has been, very unwarrantably, affixed, are not
intitled to any credit.
JOSEPH FRANK.
Stockton-upon-Tees,
1st February 1811.
PREFACE.
The subject of the following digest is not, as may be hastily imagined, a
matter of mere curiosity or antiquarian research. The officer of whom it
treats exercises his function in many parts of the kingdom, in its
fullest extent, at this day; though the attention requisite in certain
branches of his duty may in some places, no doubt, have induced him to
neglect them.
The want of such a compilation as the present must have been more or less
felt by every one who has acted in the execution of this office; and
indeed it ought to seem much more extraordinary (considering the
multitude of similar publications on other subjects) that it should not
have been attempted long ago, than that it appears at present.
Little can, and less need be said in favour of a work which has no
obligations either to genius or to judgement: some labour, however, has
undoubtedly been exerted in the compilation, which, should it have the
good fortune to prove so far serviceable to those whom it most concerns,
as to render the discharge of an ancient and honorable office an object
of less difficulty or hazard, the 'compiler' will not have reason to
regret.
CONTENTS.
Page
INTRODUCTION xi
BOOK I. Of a franchise or liberty 1
Chap. I. Of franchises in general 1
---- II. Of the liberty of _Retorna Brevium_, or return
of writs 3
BOOK II. Of the bailiff of a franchise or liberty 16
Chap. I. Of his quality 16
---- II. Of his creation or appointment, and interest
in his office 17
---- III. Of his qualification 18
---- IV. Of his power and capacity; i. e. what he may
or may not do or be 20
---- V. Of his duty, i. e. what he must or shall do
or not do 26
---- VI. Of his indemnity and protection 54
---- VII. Of his responsibility and punishment 59
---- VIII. Of his fees 68
---- IX. Pleadings 71
APPENDIX 76
INTRODUCTION.
Bailiff (_Baillif_, or _Baillie_ French; _Ballivus_, Latin; from
_balliare_ to deliver, intrust, or commit,) is the name given by the
Normans to those ministers of the law whom the Saxons called =gerefa=,
_greve_ or _reve_[1]: an appellation which, however corruptly, we still
retain in the word _sheriff_, (=scyre-gerefa=, or _shire-reve_,) and by
which the bailiff of a manor is in many parts of the kingdom known to
this day. The sheriff himself did not, it is true, long continue to enjoy
the title of bailiff, which gave place to the more honorable one of
_vicecomes_ or _viscount_ (_qui fungitur vice comitis_,) by which name
alone he was constantly stiled in all judicial proceedings, till the
progressive ascendency of the English tongue restored to him his ancient
and original appellation. His county, however, is still called his
_bailiwick_[2], he is often mentioned in _Magna Charta_ and ancient
statutes along with _alii ballivi_, and is himself frequently included
under that title[3]. Between this officer and the bailiff of a hundred,
manor or liberty, such a perfect resemblance appears to have subsisted,
in all respects, that there cannot be a doubt that both were the produce,
if not of the same hand, at least, of the same system. The division of
the kingdom into counties, hundreds and tithings, is well known to be
owing to the wise policy of the great Ælfred[4]; each county, hundred or
tithing is agreed to have been subjected to an officer known by the
common name of the =gerefa=; he who presided over the county at large
being usually, by way of distinction, called the =heh= or =scyre-gerefa=
and sometimes the =scyr=-man, as the others were stiled the =hundred= and
=tything-gerefa= or the hundreder, and tithingman[5]. We are but
imperfectly acquainted with the duty of this officer till after the
conquest. It is said, indeed, that the sheriff, in the time of the
Saxons, was not the minister of the King, but the officer of the
=Ealderman= or =Eorl=[6]. And what this alderman or earl was to the
county, the lord or thain was, no doubt, to his manor or liberty, and
what the sheriff was to the former, the inferior =gerefa= or bailiff was
to the latter. Certain it is that not only the several courts of which we
shall have occasion to speak, but what we now call manors or liberties,
existed from a very early period, nor was it possible for the Norman
Kings to enlarge, in favour of their own countrymen, the amazing powers
which almost every petty Saxon thain or lord exercised in his
jurisdiction, either from the nature of the constitution and ordinary
course of law, or the liberal grants of the Saxon monarchs: powers which
the Norman jurists never found themselves able to express in a different
language[7].
The sheriff was originally elected by the freeholders or suitors of the
great Court Baron of the county, commonly called the County Court; the
bailiff by the freeholders of the hundred or manor, suitors to the Court
Baron of each division[8]: and when the right of election in the former
case was wrested from the people by the Norman tyrants[9], the same right
in the latter case was usurped by the lord of the hundred or manor. The
sheriff presided as judge in the folkmote or leet of the county, the
bailiff in that of the hundred or manor. The former sat as principal
executive officer of the County Court; the bailiff, of the Court Baron;
the freeholders or suitors being the judges in each to this day: and
though both seem to have been anciently considered as the Kings courts,
yet offences were in one alledged to be _contra pacem ballivi_, and in
the other _contra pacem vicecomitis_[10]. The fines and amerciaments
imposed in these courts were levied, and the process of the court
executed by the sheriff and bailiff in the same manner; each having his
serjeants or inferior officers to assist him: and in the proceedings of
the above courts, or others nearly similar, and held by or before the
same persons, was comprehended the whole system, as well of the civil as
of the criminal law of that age, not only before the institution of
judges itinerant, but (in many cases at least) long after. The revenue of
the crown was collected and accounted for by the sheriff and bailiff
within their respective jurisdictions: And as each of them governed the
tenants in peace, so he led them forth to war when necessity
required[11]. Each of them had likewise his proper _aid_ or _scot_, which
he assessed upon the landholders within his bailiwick, who frequently
complained of it as an intolerable grievance, and as such it was at
length abolished. The Kings writ is thought not to have run as it now
does till about the institution of the Eyre or Iter of the Justices by K.
_H. 2_.[12] How his commands were signified before this invention does
not clearly appear[13]; but certainly after it took place, the execution
of the writ (though necessarily directed to the sheriff) was as much the
duty of the bailiff within the franchise, as of the sheriff without; nor
could the latter, without a special authority, interfere in the most
trivial matter which belonged to the other. In short, whatever the
sheriff did or could do in the county at large the bailiff could do and
did within his franchise, whether hundred[14] or manor. Such was the
ancient constitution, and such in a great measure will appear from the
following sheets to be the law at this day.
[1] From =gerefen= _tollere_, _rapere_, _exigere_. _Exactor Regis (sc.
mulctarum & jurium suorum). Ideo scil. quod mulctas regias et
delinquentium facultates, in fiscum raperent, exigerent, deportarent._
Spelman, _voce_ REVE.
[2] See _Co. Lit. 168, b._ Whenever the sheriff in any judicial
proceedings speaks or is spoken to of his county, the law in fact has
regularly no other name for it; _in comitatu meo_ or _tuo_ for instance
has (frequently at least) a very different meaning.
[3] _2 Inst. 19._ Blount, _voce_ Bailiff. And see _Fortescue on
Monarchy_, 124. _Sed quia_ vicecomes ... _fuit_ ... magnus domini Regis
ballivus. _M. Paris._ 801. The governors of the city of London were
originally called portreves, then bailiffs, then sheriffs, and at last
mayors. _Stows Survey_, by Strype. _B. v. c. 6._
[4] _Ingulphus (apud scriptores post Bedam)._ 870. _Gul. Malmesburiensis
de Gestis Regum. Ibi._ 44. Camdens _Britannia. clxvii._ _Seldeni
Analecta, Opera, ii._ 922. Notes upon Draytons Polyolbion. Song xi.
(Works. iv. 1839.) Shires, however, it is certain there were before this
time. See Bradys Hist. of Eng. i. 84. 116. and Sir J. Spelmans Life of
Ælfred. 110.
[5] The _præpositus villæ_, or bailiff of a manor, was also called the
=tungerefa= or Tungreve. _Vide_ Spelman, _voce_ Grafio.
[6] Hickes. Dis. Epis. 49.
[7] Infangtheof, outfangtheof, thol, theam, soc, sac, blodwite,
fythewite, flyhtewite, fledwite, ferdwite, hengewite, leirwite,
childwite, wardwite, grithbrech, hamsocn, forstall, ordel, oreste,
flemenefrith, miskennyng, burgbruch, &c. &c.
[8] Kennet, Par. Ant. Glos. v. _præpositus_. Another title common to
sheriff, bailiff, and reve.
[9] This privilege was restored to the people by the _Articuli super
Chartas_; _28 E. 1. c. 8._ but resumed in the following reign, and has
ever since continued in the crown. _9 E 2. st. 2. Jenk._ 229. They enjoy
the right of electing the coroner still; chiefly, it is supposed,
because it has not been thought worth taking from them.
[10] _Fleta. l. 2. c. 53._ § 1. The _steward_ has been in possession of
this branch of the bailiffs office for many centuries. When this
transfer took place would be scarcely possible to discover. It should
seem, however, to have been gradual, and might possibly have its rise
from the _Senescallus_, the =Styweard= or _major-domo_ being sometimes
more conversant in forensic matters than the bailiff, whose office
chiefly concerned the management of the lords demesne and other
out-of-door concerns. The _Mirror_ (written in the time of _E. 2._)
constantly speaks of the bailiff as judge of the court leet; see also
Ken. _Par. Ant._ p. 319. And thus Finch, speaking of the County Court
and Court Baron, says "the suitors are the judges and the _bailiff_ and
sheriff are but ministers." _Law._ 248. And hence, perhaps, it has been
held that both offices might be enjoyed by one and the same person.
_Cro. Jac._ 178. (cites _29 H. 8._) And it should seem from Bracton that
writs were indifferently directed to either the steward, or the bailiff,
_ballivo vel senescallo_. _l. 5. c. 32._
About the time that this separation took place, the lowest branches of
the bailiffs office were transfered to an inferior minister, named a
_reve_, of whom we read at large in _Fleta. l. 2. c. 76._ But possibly
this was only the case in extensive manors and demesnes, where a single
person was found unequal to the discharge of the united functions of
_steward_, _bailiff_, and _reve_.
[11] Lambards _Perambulation of Kent._ p. 484.
[12] _V._ Prynne, Animad. on 4 Inst. p. 150. _Hickes. Dis. Ep._ p. 8.
48. See however in Madox, His. Ex. p. 100. an instance of justices
itinerant in the time of K. Stephen. Writs unknown to the Saxons.
_Hickes. u. s._ p. 8.
[13] A collection of all the writs and charters that can be met with of
the first three or four Norman kings would be a useful, curious, and
interesting work.
[14] Most hundreds have, by statute or otherwise, been united to the
body of the county and power of the sheriff. But many of them, having
been granted in fee, still exist as independent franchises.
THE
OFFICE
OF
BAILIFF OF A LIBERTY.
BOOK I.
Of a FRANCHISE or LIBERTY[15].
CHAPTER I.
OF FRANCHISES IN GENERAL.
[Sidenote: Royal privilege.]
[Sidenote: Forfeiture.]
A franchise is a royal privilege in the hands of a subject; and is
forfeited by misusing it. _Finch_, 164.
[Sidenote: Record.]
If a franchise be of record in any court of the King it is sufficient.
_27 H. 6. 9._
[Sidenote: _Quo warranto._]
Allowance of franchises in _Quo warranto_ or in Eyre shall conclude the
King, for this is the suit of the King to try franchise; _contra_ of
allowance in the Common Bench or other court. _10 H. 7. 13._ _Br.
Fraunches & Liberties_, 40.
[Sidenote: General statute.]
Franchise bound by general statute, _tam_ within _quam_ without the
franchise. _19 H. 6. 1._
Franchise or other special liberty or privilege shall not be defeated by
general statute. _19 H. 6. 64._[16]
[Sidenote: Prisons.]
Albeit divers lords of liberties have custody of the prisons and some in
fee, yet the prison itself is the Kings _pro bono publico_; and therefore
it is to be repaired at the common charge; for no subject can have the
prison itself. _2 Inst._ 589.
None can claim a prison as a franchise, unless they have also a
jail-delivery of felony, which the dean and chapter of Westminster hath
not, and therefore ought to send a calendar of 'prisoners' to Newgate, or
return the _Habeas Corpus_ to _B. R._ with a claim of their franchise. _1
Salk._ 343.
[Sidenote: _Magna Charta._]
By _Mag. Char._ c. 38., are saved to all archbishops, &c. earls, barons,
and all others, all liberties and free customs which they had enjoyed
before.
In the preamble to many of the old statutes it is stipulated that all the
lords spiritual and temporal, and the other lieges of the King having
liberties and franchises, shall have and enjoy all their liberties and
franchises which they have of the grant of the Kings progenitors and of
his own grant and confirmation. This is the constant preface to the
petition rolls to which the King always answers "_Le Roy le voet_." _Rot.
Parl._ _passim_. And that all persons and corporations may fully enjoy
their liberties, [and] franchises, [was] one prime cause of calling
parliaments, and so declared, and the conservation of them one chief
petition of the commons when violated. _Abridgement of the Records_[17].
_Table_, _voce_ Liberties.
[15] Note, that these words are in this work used in two different
senses, but both equally common: viz. 1. for the privilege itself, as
the franchise or liberty of _Retorna Brevium_: 2. for the manor or
territory in or over which that privilege is exercised, as the Liberty
or Franchise of the Savoy. There will seldom, if ever, be any confusion
or obscurity on this account.
[16] Vide _Co. Lit._ 115. and the case of the King against Pugh.
_Douglas_ 179.
[17] Published by Prynne under the name of Sir Robert Cotton, but said
to have been actually compiled by William Bowyer, keeper of the records
in the Tower in the time of Queen Elizabeth.
CHAPTER II.
OF THE LIBERTY OF _Retorna Brevium_, OR RETURN OF WRITS.
[Sidenote: Roll of Liberties.]
[Sidenote: _Non omittas._]
By _W. 2. c. 39._ The treasurer of the exchequer shall deliver in a roll
all the liberties in all shires that have return of writs. And if the
sheriff answer that he hath made return to the bailiffs of any other
liberty than is contained in the said roll, the sheriff shall be
forthwith punished as a disheritor of the King and his crown[18]. And if
peradventure he answer that he hath returned the writ to the bailiffs of
some liberty that indeed hath return who hath done nothing therein[19],
the sheriff shall be commanded that he shall not omit by reason of the
aforesaid liberty, but that the Kings precept shall be executed; and that
he make known to the bailiffs to whom he returned the writ that they be
at a day contained in the writ to answer why they have not made execution
of the Kings precept. And if they come at the day and acquit themselves
that return of the writ was not made to them, the sheriff shall be
forthwith condemned to the lord of the same liberty, and likewise the
party grieved by the delay in restitution of damages. And if the bailiffs
come not at the day, or come and do not acquit themselves in manner
aforesaid, in every judicial writ, so long as the plea endureth, the
sheriff shall be commanded that he omit not because of the liberty, &c.
That the statute, in this respect, was little more than a declaration of
the common law, appears from _Bracton. l. 5. c. 32._
[Sidenote: Indenture.]
By _12 E. 2. c. 5._ Of returns which shall be made to sheriffs by
bailiffs of such franchises as have full return of the Kings writs, an
indenture shall be made between the bailiff of the franchise by his
proper name, and the sheriff by his proper name. And if any sheriff
change the return so delivered to him by indenture, and thereof be
convicted at the suit of the lord of the franchise, of whom he shall have
received such return, if the lord shall have sustained any damage, or his
franchise be imblemished, and at the suit of the party who shall have
sustained damage by that occasion, he shall be punished on behalf of the
King for his false return, and render to the lord and to the party double
damages.
[Sidenote: Prescription.]
Return of writs may be claimed by prescription as appertaining to a
manor. But more especially may it be claimed as appertaining to an
honour. _Hardres._ 423.
[Sidenote: Escheat,]
Where a man hath _Retorna Brevium_, which liberty comes to the hands of
the King by escheat _vel aliter_, this unity in the King shall not
extinguish the liberty. _Keilwey._ 72.[20]
[Sidenote: A dangerous liberty!]
This liberty of Retorna Brevium (saith C. B. Hale) is a dangerous liberty
for him that hath it; for he is to be responsible for all the defaults of
his bailiffs, as escapes, &c. And if the bailiff do not account for the
collection of the Kings revenue he is responsible for it; 'tis a feather
in his cap, but a thorn in his foot. _2 Vent._ 406.
[Sidenote: Sheriff.]
This liberty though it carries an exemption, yet it doth not exclude, but
that the sheriff may execute writs within it. But then it is a wrong for
which the lord of the liberty may have his action: but in some cases the
sheriff may lawfully do it, as in the case of the King. A _non omittas_,
_&c._ in case of execution of a writ of waste, whereto he is particularly
empowered by the statute, and sometimes where the thing is divided[21].
(By Hale C. B.) _2 Vent._ 406.
[Sidenote: Warrant.]
If an action be brought in a county, and the place where, _&c._ is the
franchise of another who hath return and execution of writs within the
said franchise, yet the writ shall issue to the sheriff, and he ought to
make over a warrant to the bailiff of the franchise to execute the same
writ; and the writ shall not be directed to the bailiff, &c. for he is
not officer to the court. And moreover it shall be intended that all
vills in the county are within the power of the sheriff till the contrary
be made appear by return of the sheriff. _35 H. 6. 42._
To the sheriff the writ must be directed, though it be for a thing done
in a franchise, and he shall send to a [_l._ the] bailiff of the
franchise who shall serve it as a servant to the sheriff[22], and the
sheriff return it _Finch._ 238.
[Sidenote: Service by sheriff.]
And though the sheriff serve an execution in a franchise, yet it is good.
And the lord of the franchise is driven to his action upon the case
against the sheriff, for the sheriff is immediate officer. _Id._ _Ib._
Where the sheriff makes execution in franchise it is good, for he is
immediate officer to the court; otherwise where bailiff makes execution
in the guildable; and the lord of the franchise in the first case shall
have his remedy for infringing the franchise. _11 H. 4. Br. Execution._
32.
[Sidenote: The King party.]
If the sheriff without _Non Omittas_ serve process within liberty or
franchise that hath return of writs it is good. _11 H. 4. 9._ _20 H. 7.
7._ But the lord of the franchise shall have action upon the case against
him. _Fitz. Nat. bre._ 95.[23] But if the King be party the lord hath no
remedy, for the writ for the King is always _Non Omittas_ in law. _41
lib. Ass._ 17. _Cromp. J. P._ 164.[24]
Where the King is party the _venire facias_ shall make mention of _non
omittas_; for where the King is party the sheriff shall not write to the
bailiff of the franchise, but serve the process himself. _41 Ass._ p. 17.
_Br. Fraunches & Liberties_, 18.
The King hath no other minister than the sheriff, and where the King is a
party no franchise shall be allowed. _Fitz. Chal._ 129.
Where the King is party as against felon or otherwise in action, the
franchise shall not take place, but the sheriff ought to enter the
franchise and serve the process, unless this clause _licet fuerimus pars_
be in the charter, in which case it seems otherwise. _38 Ass._ p. 19.
_Br. Fraunches & Liberties_, 31.
If the King grant _returna omnium brevium_, yet he shall not have return
of the summons of the exchequer. _22 Ass._ p. 49. _Br. Patentes_, 32.
[Sidenote: Arrest by sheriff.]
_Per Glynn_ Ch. J. Mich. 1658; if one be arrested by the sheriff of the
county within a liberty, without a _non omittas_, yet the arrest is good;
for the sheriff is sheriff of the whole county, but the bailiff of the
liberty may have his action against the sheriff for entering his
liberty[25]; but upon a _quo minus_, a sheriff may enter any liberty, and
execute it _impune_. _R. S. L._ 116. _cites_ _Pract. Reg._ 72. _Viner,
Franchises_, (_B._) 6.
[Sidenote: _Non omittas_, _Capias utlagatum_, _Quo minus_.]
The sheriff, upon a _non omittas_, _capias utlagatum_, or _quo minus_,
may enter and make an arrest in any franchise. _L. P. R._ 635. _Viner,
Franchises_, (_B._) 6.
[Sidenote: _Non omittas._]
In the county of Suffolk are two liberties, one of St. Edmund Bury, and
the other of St. Ethelred of Ely: suppose a _capias_ comes at the suit of
_A._ to the sheriff of Suffolk, to arrest the body of _B._ the sheriff
makes a mandate to the bailiff of the liberty of St. Ethelred, who makes
no answer; in that case the plaintiff shall have a writ of _non omittas_,
and by force thereof he may arrest the defendant within the liberty of
Bury, although no default was in him [_sci._ in the bailiff of that
liberty.] _5 Rep._ 92.
But this is to be understood of the process of the Kings Bench; for
Common Pleas recites the _capias_, the sheriffs return, that he has made
his mandate to the bailiff, who has given no answer, and then gives the
sheriff power to enter the liberty; but in the Kings Bench, on the
sheriffs return on the _Latitat_, the authority is general, _non omittas
propter aliquam libertatem_, which gives the sheriff power to enter not
only that liberty, but all the liberties within the county: And this
seems to be grounded on the words of the _latitat_, (viz.) _latitat_ and
_discurrit_, so that the defendant is supposed to skulk and run from one
place to another; and therefore the _non omittas_ was made general, that
he might not run from one liberty to another. _Gilb. Hist. C. P._ 24.[26]
[Sidenote: Justice of peace.]
A warrant of a justice of peace to arrest for felony may be executed in a
franchise within the county, for it is the Kings suit, in which a _non
omittas_ is virtually included. _2 Hale P. C._ 116.[27]
[Sidenote: Process.]
By _5 G. 2. c. 2._ § 3., in particular franchises and jurisdictions the
proper officer there shall execute such process [i. e. where cause of
action in superior court is under 10l. in inferior court under 40 s.]
[made perpetual by 21 G. II. c. 3.][28]
[Sidenote: Sheriffs deputy.]
By _13 G. 2. c. 18._ § 6., for the better and more speedy execution of
process within particular franchises or liberties, the sheriff of every
shire, being no city or town made a shire, within which there is any
franchise or liberty, the lord or proprietor whereof is of right intitled
to the return of writs within such franchise or liberty, shall (if
required by any such lord or proprietor) within one month next after such
request made to him for that purpose, nominate and appoint one or more
sufficient deputy or deputies, at the proper costs and charge of such
lord or proprietor, to be resident at some convenient town or place in or
near such franchise or liberty, to be for that purpose appointed by the
lord high chancellor of Great Britain, and the chief justices of his
Majestys courts of Kings Bench and Common Pleas for the time being, or
any one of them, who is and are hereby authorized and impowered to
appoint such convenient town or place as to him or them shall seem meet,
and to settle and direct what costs and charges shall be paid therefore
by such lord or proprietor; and such deputy or deputies shall reside at
such town or place so to be appointed as aforesaid, and shall have
authority in the sheriffs name, and is and are respectively authorized
and impowered to receive and open all such writs and process (the
execution or return whereof doth of right belong to the lord or
proprietor of any such franchise or liberty) and thereupon in the name,
and under the seal of the sheriff, to make and issue out such warrant or
warrants to such lord or proprietor, as by law is requisite, for the due
execution of such writs or process; and every such deputy or deputies is
and are hereby required, upon tender of any such writ or process, to
receive and open the same, and to issue out such warrant thereon, without
delay, in such manner and form as the sheriff himself may or ought to do,
without taking any further or other fee than what is now due and
accustomed for such warrant; upon pain that every such sheriff or deputy
respectively, who shall be guilty of any wilful neglect or default in the
premises shall be liable to be punished for the same, as for a contempt
of one of his Majestys said Courts of Chancery, Kings Bench, or Common
Pleas (as the case shall require), and shall likewise make satisfaction
to the party or parties that shall receive damage thereby.
[Sidenote: _Ca._ and _non om._]
_Note._ It is now usual to take out the _capias_ and _non omittas_
together, without staying for the sheriffs return[29]. _Gilb. Hist. C.
P._ 26.
_Note_, If any of your defendants live within a liberty where the sheriff
may not enter, you must get the sheriff to direct his warrant on your
writ to the bailiff of such liberty, who may execute it; but if the
bailiff of such liberty do not execute it, then you must at the return of
your writ, get the sheriff to return a _mandavi ballivo_ thereon, and
thereupon you make out a writ called a _non omittas_, directed to the
sheriff, and upon that writ the sheriffs officers may, upon the sheriffs
warrant made out thereon, enter and execute the warrant within such
liberty. _1 Instructor Clericalis._ 44.
And _Note_, The usual practice in such case is if the defendant dwells in
the country, to send down a _non omittas_ with the _latitat_ for
dispatch. _Ib._
SCAC. E. 1725.
_L. Digby_ v. _Meech_ et al.
Bill to establish plaintiffs right to the manor, &c. of Sherborn
Castleton in the county of Dorset, to Greenwax fines, &c., and also
poundage fees on executions and _Retorna Brevium_, &c. by virtue of a
grant 14 Jac. 1. The bill was brought against three succeeding sheriffs
of the county, and Templeman, who had been the undersheriff for three or
four years, and as to him to have an account of what poundage fees, &c.
he had received within the liberty: the title set forth by plaintiff was,
that King James I. granted to Sir John Digby (after earl of Bristol),
from him they descended to George, from him to John earl of Bristol, _and
on his death vested in plaintiff_.
It was objected at the hearing that here was not a sufficient title set
forth, it not appearing how the premises vested in plaintiff, whether by
descent, settlement, or how.
And _per tot' cur'_ the bill ought to be dismissed for that reason; the
bill being to establish a right, as well as for an account; and upon this
the cause went off, but plaintiff had liberty to amend his bill.
_Hanbury_, 195.
[18] In the Kings Bench the sheriff returned _Mand' ballivo' Libertatis
de D._ and it was said that he hath not such a franchise, and if it be
inrolled in the chancery that A. hath _retorna brevium_, yet if it be
not inrolled in the exchequer, as the statute of _W. 2. c. 39._ and if
the sheriff return other liberty he shall be punished as a disinheritor
of the Crown by such statute, and the justices may send _certiorari_ out
of chancery to the treasurer, that he bring the roll of liberties in his
hand, and shew it to the justices. _11 E. 4. 4._ _Br. Retorne de
briefe._ 98.
This Roll of Liberties is supposed to be lost; at least the clerks of
the _Treasurers Remembrancers office_, on inquiry there, could give no
account of it; any more than the bag-bearer of the _Kings_ could of the
"little booke," mentioned by Powell to be in the _Kings Remembrancers
office_, "intituled, _Liber de Ball. pro Angl._ of all the bailiwicks
throughout England," which he calls "an ancient booke, made _Anno_ 1180."
_Per Curiam_, where the bailiff makes insufficient return, the sheriff
may return _quod nullum dedit responsum_, for an insufficient return is
as no return; and in _præcipe_ against two, the bailiff returns the one
summoned and the other not, this is no answer, and if the sheriff return
this, he shall be amerceo, but by _Vavisour_ if the bailiff make dubious
return and the sheriff return it over he shall not be amerced, _quære_.
_5 H. 7. 27._ _Br. Retorne de briefe._ 89.
In _Præcipe quod reddat_, to the grand capias the sheriff returned _quod
mandavi ballivo, libertatis_, who returns that he hath taken the land
into the hands of the King, and says nothing that he hath summoned the
tenant. _Martin_, another summons with _non omittas_ shall be awarded,
and the sheriff shall not be amerced, for the bailiff hath not served
the writ; for as much as he had in commandment to do two things, and he
has done but one; and so it is as if he had said nothing either of one
or the other. _Babb_, a _non omittas_ shall not be awarded but where the
bailiff hath not given any return, but here he hath given a return which
is not sufficient, and for this he shall be amerced. _T. 4 H. 6.
[25.]_ _Fitz. Amercement._ 1.
In trespass the sheriff returned the _Capias quod mandavit Ballivo
Libertatis, qui sic respondit quod cepit corpus_; but the bailiff does
not bring in the body; but the defendant would have answered by
attorney, and was not received. And the plaintiff prayed _Sicut alias_
to the sheriff, and _non omittas_. And for that the writ was served he
could have nothing but a writ to the sheriff to distrain the bailiff to
send the body, &c. _27 E. 3. 7._
[19] This _nihil_ is to be understood, not only where nothing at all is
done, but also where the bailiff of the liberty maketh an insufficient
return, for that is _nihil_ in law, and therefore a _non omittas_, &c.
_2 Inst._ 452.
[20] (1.) The King may have liberties by the suppression of abbeys (_32
H. 8._) or by other means. And a liberty shall not be intended to be
extinct, unless it be so shewn, but shall be said to be still in _esse_.
_Cro. Jac._ 242.
When the King grants any privileges, liberties, franchises, &c. which
were privileges, liberties, or franchises in his own hands as parcel of
the flowers of his crown, as _bona et catalla felonum fugitivorum
utlagatorum_ &c. _bona et catalla waviata, extrahur; deodanda, wreccum
maris_, &c. within such possessions, there if they come again to the
King, they are merged in the crown, and he has them again in _Jure
Coronæ_; and if the wreck, or goods waifed, estrays, &c. were appendant
before to possessions, now the appendancy is extinct, and the King is
seised of them in _Jure Coronæ_. But when a privilege, liberty,
franchise or jurisdiction was at the beginning erected and created by
the King, and was not any such flower before in the garland of the
crown, there, by the accession of them again to the crown they are not
extinct nor the appendancy of them severed from the possessions; as if a
fair, market, hundred, leet, park, warren, _et similia_, are appendants
to manors, or in gross, and afterwards they come back to the King, they
remain as they were before, in _esse_, not merged in the crown, for they
were at first created and newly erected by the King, and were not in
_esse_ before, and time and usage have made them appendant. _9 Rep. 25,
h._
[21] Writ issued to the sheriff to enquire of waste, who returned _quod
mandavi ballivo libertatis qui mihi nullum dedit responsum_, and for
this he was amerced, and _sicut alias_ awarded, because by the writ he
is judge and hath power to enter the franchise. _T. 11 H. 4. (81.)_
_Fitz. Retourne del vicount._ 53. But
Note, that sometimes the sheriff is judge, as in redisseisin, waste, and
admeasurement, and the process shall be served by the baily as is said.
_Diversite des Courts._ _Court Baron._
_Ejectione Custodiæ_ [under _W. 2. c. 35._], at the distress with
proclamation the sheriff returned _mandavi ballivo libertatis_, &c.; and
by _Thirning_ and _Markham_, the sheriff shall be amerced, for the
proclamation is to be made by the sheriff by the statute. Therefore
because the distress with proclamation is a thing entire, he ought to
have entered the franchise and served the whole writ himself: and
_Rikhill_ and _Tirwit e contra_ and that he did well, as in a _præcipe
quod reddat_ of land, part in guildable, and part in franchise, the
sheriff shall make precept for parcel, and shall serve the rest himself.
_2 H. 4. 1._ _Br. Ejectione Custodie._ 1.
If a distress with a proclamation be granted, and the defendant hath
nothing but within a franchise, the sheriff shall make proclamations in
the county, and the baily of the liberty shall distrain him. _2 Inst._
442.
Where the issue is of land part gildable and part in franchise, the
panel shall be returned part by the sheriff and part by the bailiff of
the franchise, and they may join [in the return]; and the distress
[shall be] by the sheriff only if the bailiff be slack. _19 H. 6. 48_,
_67_. _Br. Retorne de briefe._ 50.
If assise be brought of tenements in two franchises the sheriff shall
write to each bailiff, and both shall serve. _Abr. Ass._ 92, _b._
Assise was brought of tenements in two vills, one vill was within the
franchise and the other in gildable, and the bailiff of franchise made
the panel, and for this it was challenged; for those of a franchise
cannot have the view by commandment of bailiff of land out of the
franchise, &c. And so the court thought. _H. 18. E. 3._ _quære_, how
the writ shall be served? It seems that the writ shall abate, and that
he shall be put to several writs, and namely where he may sever the
thing, &c. for otherwise it will follow that the bailiff of the
franchise shall never serve a writ, for a man may always put in the
writ, part of the land gildable, &c. _quære_. _Abr. Ass._ 93.
[22] He is not servant to the sheriff, nor is any way subject to him
(having as good authority in his office, and being as ancient an officer
as himself).
Upon an issue the sheriff returned to the _Venire Facias_, and to the
distress, as to 4 jurors he returned the writ served, and as to the
remainder he returned _mandavi ballivo de B. qui nullum_, &c. Fortescue
prayed that the sheriff should be amerced, for no writ may be returned
by two ministers _s._ part by the sheriff and part by the bailiff.
Newton, _e contra_. And afterwards, by advice of all the justices, the
sheriff was amerced. _H 19 H. 6._ _Abr. Ass._ 144. 145.
It was assigned for error that in assize it appeared by the return of
the sheriff, that he had found pledges before himself, and the bailiff
of the franchise, to whom the return belonged, served all the rest of
the writ; and the return adjudged good. _21 H. 7. 14._
[23] _H._ 49 _E._ 3. _B. R. Rot._ 4. _Linc._ proces _per_ attachement
_per billam versus vicecomitem_ directed _al coroner_ for the disturbing
a lord of a liberty. L. C. J. Hales Discourse concerning the Courts of
K. B. and C. P. (Hargraves Tracts, vol. i. p. 363.)
[24] In the _Auctarium Additamentorum_ to Watts's edition of Matthew
Paris is a warrant from the sheriff of Essex and Hertford to the
bailiffs of the liberty of St. Albans, reciting a writ to the sheriff to
summon the knights and freeholders of the said counties, &c. to be
before the Kings commissioner with an express _non omittas_ in case of
the default of the bailiffs of liberties; which proves that the writ for
the King was not at that time (37 H. 3.) a _non omittas_ of itself.
[25] It seems that the sheriff ought to take notice of such a liberty at
his peril, without the party shewing his grant to him but merely upon
his saying that he hath one, because it is a matter of record. _1 Roll
R._ 119. _Town of Derby_ v. _Foxley_.
[26] Rule to shew cause why a writ of _non omittas capias ad
respondendum_, should not be quashed, discharged. The objection to the
writ was, that it recited a mandate to have been issued forth by the
sheriff to the bailiff of a liberty without naming what liberty, but
leaving a blank for the same. The court held the objection to be valid,
and that the proper way to take advantage of the defect is by motion;
but it appearing that bail was put in to this writ before a judge, the
objection now comes too late. _Barnes._ 416.
[27] Where the sheriff serves the process once of a thing local or
permanent, as in _Præcipe_ of land and such like, he cannot after return
_mandavi ballivo_; but _e contra_ of a thing transitory which may
remove. _5 H. 7. 27._ _Br. Ret. de briefe._ 89.
Thus in _Alias Summons_ in Dower the sheriff can't return _mandavi
ballivo_, for he ought to have made this return upon the first writ,
that so the court might have awarded a _non omittas_; but if it relates
to matters transitory, then the sheriff may return _mandavi ballivo_ on
the issuing of the second process, as on an _alias capias_, for the body
might be in the liberty on the issuing of the second process, though it
was in the guildable in the first; and therefore the return of the first
process does not conclude him from returning the liberty to the second
process. _Gilb. Hist. C. P._ 26.
[28] _Urlin_ moved to stay proceedings, the process being served within
the franchise of Bury St. Edmonds, and not by the proper officer,
contrary to the late act of parliament. _Per Cur'_: The act only
preserves and saves the jurisdiction of particular liberties. The person
injured must bring his action, the court cannot stay proceedings.
_Barns._ 404.
[29] How far such a practice is consistent with the rights of the lord
of the liberty or with the law of the land (and particularly with the
act just above recited) is submitted to those whose duty it is to
support both.
In Yorkshire it is usual for the sheriff to direct the warrant as well
to the bailiff of the liberty as to one or more of his own bailiffs, who
may take defendant if found _extra libertatem_. This method is
unobjectionable, it prevents delay and answers all the purposes of a
_non omittas_.
BOOK II.
Of the BAILIFF of a FRANCHISE or LIBERTY.
CHAPTER I.
OF HIS QUALITY.
The bailiff of a franchise or liberty is he who in a free place, or
portion of a county, taken away from the power of the sheriff, executes
the business of the sheriff. _Spelman._
[Sidenote: Minister to the King.]
The bailiff of the franchise is not minister to the sheriff but to the
King. _8 E. 4. 17._
[Sidenote: Officer _per se_.]
The bailiff of a franchise is an officer by himself, and hath not to do
with the sheriff. _21 H. 7. 23._
The bailiff of a liberty is not servant to the sheriff, for the sheriff
cannot make other return but according to that which the bailiff of the
liberty certifies him. _Keilwey_, 89.
[Sidenote: Kings bailiff.]
The Kings bailiff of his manor is immediate officer to the King. _33 H.
6. 29._
The bailiff of a liberty is such an officer as the court will take notice
of. _Pasch. 24 Car. B. R. Q. S. P. R._ 122.
CHAPTER II.
OF HIS CREATION OR APPOINTMENT, AND INTEREST IN HIS OFFICE
[Sidenote: Parol, patent or inheritance.]
One may be bailiff by a simple grant [i. e. by parol] or patent or
inheritance. _H. 33 H. 6. [3.]_ _Fitz. Monstrauns de faitz, &c._ 93.
[Sidenote: Bailiff of the King.]
A man may be bailiff of the King without patent or writing. _7 H. 7. 10._
_Br. Bailie. 46 & v. 2 & 9._
A man may be made bailiff to the King by naked matter of fact as well as
to a common person. _Keilwey_, 174, b.
If the King make one his bailiff of his manor, to which manor waif, stray
and leet are appendant, by patent, in this case the bailiff shall have
the waif, stray and leet, because he occupies in right of the King, and
he shall account to the King; and therefore this is an advantage of the
King, for which reason the bailiff shall have all. _8 H. 7. 3._
[Sidenote: Corporation.]
Corporation having return of writs may make bailiff (to execute them)
without writing, by parol. _Moor_, 552.
[Sidenote: Bailiff for life.]
But a man may not make bailiff or steward for life, or in fee, without
deed. _21 H. 7. 36._
[Sidenote: Discharge by purchaser.]
Bailiff of a manor[30] for life, with fee or other profits for the
execution of his office, cannot be discharged by a purchaser of the manor
(_contra_ if no fee or profit). _Cro. Eliz._ 859.
[30] Whatever is said of the bailiff of a manor is in general applicable
to the bailiff of a liberty, every liberty being likewise a manor;
though every manor be not a liberty.
CHAPTER III.
OF HIS QUALIFICATION.
[Sidenote: Sufficient land.]
By _4 E. 3. c. 9._, no sheriff, bailiff of hundred, wapentake, or
franchise, shall be henceforth if they have not land sufficient in the
places where they are ministers whereof to answer the King and his
people, in case any man will complain against them. Re-enacted by _5 E.
3. c. 4._
[Sidenote: Oaths.]
By _27 Eliz. c. 12._ § 2., all persons that shall be admitted to or take
upon them the executing of the office of an undersheriff, before he
intermeddle with the use or exercise of the said office, shall receive
and take a corporal oath upon the Holy Evangelists, before the justices
of assise, or one of them, of the same circuit wherein that county is
whereof he shall be undersheriff, or before the _Custos Rotulorum_, or
two justices of the peace whereof one to be of the _quorum_ of the said
county, for and concerning the supremacy, in such manner and form as that
oath is expressed and declared in one act of parliament made and ordained
in the first year of the reign of our Sovereign Lady the Queen's
Majesty[31], together with which oath he shall in like sort, before the
same person or persons, receive and take another corporal oath as
followeth, (that is to say) I _A. B._ shall not use or exercise the
office of undersheriff corruptly during the time that I shall remain
therein, neither shall or will accept, receive or take, by any colour,
means or device whatsoever, or consent to the taking any manner of fee or
reward of any person or persons for the impanelling or returning of any
inquest, jury or _tales_, in any court of record for the Queen, 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, impanel all jurors, and return 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 said office.
So help me God.
By § 4., every bailiff of franchises, deputy and clerk of every sheriff
and undersheriff, and every other person and persons which shall have
authority, or take upon him to impanel or return any inquest, jury or
_tales_, or to intermeddle with execution of process in any court of
record, shall before he or they intermeddle with any further execution
thereof, receive and take the oaths aforesaid corporally before the
person or persons appointed by this act to minister the same, or before
the head officer of the place (if it be a town corporate), changing only
the words (the office of the undersheriff) contained in the oath
expressed in this act, to such words as are convenient for the
deputation, office, or place in which the party which taketh the oath is
to be exercised in: and if any the said persons limited to take the oath
aforesaid, do take upon him to impanel or return any inquest, jury or
_tales_, or to intermeddle with the execution of process not having
before taken the oaths aforesaid, every [such] person shall lose and
forfeit the sum of forty pounds of current English money, the one moiety
to be to the use of our Sovereign Lady the Queen, the other to him or
them that will sue for the same.
[31] By _1 W. and M. stat. 1. c. 8._, the oath of supremacy is taken
away, and certain other oaths substituted in lieu thereof.
CHAPTER IV.
OF HIS POWER AND CAPACITY; _i. e._ WHAT HE MAY OR MAY NOT DO OR BE.
[Sidenote: Steward.]
A bailiff may be steward of the same manor; for they may well stand both
together. (_29 H. 8._ in _Bro._) _Cro. Jac._ 178.
[Sidenote: Deputy.]
Bailiff of a liberty may well have a deputy. _Cro. Jac._ 242.[32]
[Sidenote: Lease of land.]
Bailiff of lord may lease the land, and good, at will, for he is
accountable, and debt lies for the lord. _2 E. 4. 4._ _Br. Bailie_, 32.
_Lease_, 34.
[Sidenote: Rent.]
But if he reserve no rent the lease is void. _1 Roll. Rep._ 258.
[Sidenote: Lease of piscary.]
Bailiff of a manor may lease the piscary for years. _3 H. 4 12b._ _1 Roll
Abr._ 339.
[Sidenote: Lease of manor.]
Bailiff cannot make lease of the manor, nor of parcel of the manor,
without especial command for that purpose. _M. 8 E. 4. 13._ _Fitz.
Bayllyff._ 3. _Br. Bailie_, 41.
[Sidenote: Lease of land.]
A bailiff cannot by any usage make lease of the land of his master [for]
an estate of freehold. _19 Ass._ 9. _1 Roll. Abr._ 339.
[Sidenote: Payments.]
Bailiff of a manor may pay rents issuing out of the manor, and shall have
allowance, but _e contra_ where he pays debts of the lord due by contract
or obligation, for this is out of his power. _4 H. 7. 14._ _Br. Bailie._
27.
[Sidenote: Cutting trees, &c.]
Bailiff may justify cutting the great trees for repair of a house, or the
covering of it as it was before, but not with more costly covering, and
the same law is of amending pale, hedge, or such like, without command of
his lord; but he cannot cover with tile what was before thatch, nor make
new house, nor make pale where hedge was before, unless by special
commandment of his master. _12 H. 7. 25._ _Br. Baillie_, 42. & _vide
plenius Trespas._ 288.
[Sidenote: Licence to walk over ground.]
A bailiff may give licence to another to walk over the ground, for this
is a trespass to the possession only, and the bailiff hath the
disposition of the profits of the possession. (_dub._) _1 Roll. Abr._ 339.
[Sidenote: Damage feasant.]
A bailiff of a manor may himself or command another to take beasts
_damage feasant_ on the land, for he hath the care of all things within
the manor. _1 Roll. Abr._ 339.
[Sidenote: General acts.]
He may do any thing for his masters benefit, but not to his prejudice
without his assent. _Cro. Jac._ 178.
And therefore he cannot give seisin of rent, nor exchange the lords land.
(_41 E. 3. 26_) _Cro. Jac._ 178.
[Sidenote: Distress for amerciament.]
Bailiff without special warrant from the steward cannot distrain for
amerciament in a leet. _Moore_, 607. 574.
_Popham_ said, that defendant as bailiff of the manor cannot distrain for
amerciament by reason of his office without an especial warrant from the
steward or lord, no more than a sheriff may levy amerciaments of _B. R._
without warrant. But _Gawdy_, _e contra_, that he may distrain for lawful
amerciaments by reason of the office. _Cro. Eliz._ 698.
Bailiff cannot distrain _ex officio_ for amerciaments. _Cro. Eliz._ 748.
Bailiff cannot distrain for amerciament by command of the lord of the
manor, nor otherwise than by virtue of a precept directed to him by the
steward of the court. _Carth._ 75.[33]
[Sidenote: Arrest.]
Bailiff of a franchise which hath _Retorna Brevium_ cannot arrest a man
without warrant to him made by the sheriff upon the writ in his hands.
_Keilwey_, 86 _b._[34]
[Sidenote: Delivery of prisoner.]
Bailiff of a liberty may deliver his prisoner to the sheriff without more
circumstance; as he may be discharged by his parol from keeping him any
longer. _Cro. Car._ 447.[35]
[Sidenote: Process.]
Bailiff of a franchise cannot execute a process within his franchise, but
by the precept of the sheriff. _29 E. 3. 42._ _Coron._ 462. _2 Hale P.
C._ 68.[36]
[Sidenote: Writ of inquiry.]
Case, judgement by _nil dicit_, writ of inquiry of damages to the sheriff
of Norfolk, who returns a _mandavi ballivo_, and sets down an inquisition
before bailiff and 40l. damages. Upon writ of error, agreed by all the
judges that the return was insufficient, for it was apparently untrue,
and against law, because the warrant was directed to the sheriff himself
to be executed in any part of the shire, and no venue contained in this
inquest of office, as there is in other writs which intitles the bailiffs
of liberties. But yet the court would not reverse the judgement, because
there were divers of the like both in the K. B. and C. P. especially in
Suffolk and Norfolk in later times. _Hobart._ 83.
[Sidenote: _Elegit._]
Bailiff of a liberty may make an inquisition and extent upon an _Elegit_
by warrant from the sheriff, and shall deliver the moiety, and not the
jury. _Cro. Car._ 319.
[Sidenote: Bail-bond.]
Bailiff of a franchise [under _23 H. 6. c. 9._] has power to take a bail
bond, and must take it to himself, and by the name of his office.
_Comyns._ 380.
Bailiff of a franchise may take bond in sheriffs name. _3 Keble_, 71.
117. 125.
[Sidenote: Waiver of franchise.]
Baily of hundred[37] may waive his franchise and arrest as sheriffs
baily[38]. _3 Keble_, 71.
[Sidenote: Capias against two.]
Capias or distress against two, sheriff may serve as to one and bailiff
as to the other. _31 H. 6. 13._
Where process issues, and the sheriff or bailiff is plaintiff, yet he may
serve the process; and the sheriff is not bound to take conusance if the
bailiff be plaintiff or not, for it may be another of the same name. _36
H. 6. 1._ _Br. Retorne de Briefe._ 65.[39]
By _2 E. 3. c. 3._ Lords of franchises, and their bailiffs in the same,
shall have power to execute this act; which prohibits all men, except the
Kings servants in his presence, and his ministers in executing his
precepts, &c. from coming before the Kings justices, or other the Kings
ministers doing their office, with force and arms, or bringing force in
affray of the peace, or going or riding armed by night or by day in
fairs, markets, or in the presence of the justices or other ministers, or
in any part elsewhere, upon pain to forfeit their armour to the King, and
their bodies to prison to the Kings pleasure.
[Sidenote: Attorney.]
By _4 H. 4. c. 19._, no steward, bailiff or minister of lords of
franchises which have return of writ shall be attorney in any plea within
the franchise or bailiwick whereof he is such officer or minister.
[32] And such deputy it should seem ought to be made by writing (_9
Rep._ 51, b.). Though it is said _21 H. 7. 37._ that the sheriff or a
steward may make deputy without deed.
[33] It is an old rule of the duchy court that the bailiffs of the
liberties of the duchy may distrain for fines and amerciaments for the
King, and keep the same fifteen days, and if the party distrained refuse
to pay his fine or amerciament, then the bailiff may sell the same,
unless the party distrained will enter into bond to pay the said fine or
amerciament at a day prefixed in the duchy court, or else shew good
cause; but in this case there is no replevy to be granted against the
King. And all this it seemeth the bailiff shall do _ex officio_. The
fines and amerciaments within the liberties of the duchy are, however,
usually levyed by writ of _levari facias & capias_ out of the duchy
court. And,
By Keble, precept to bailiff by nude parol is as effectual in court
_Baron_ as by writing, because the trial shall be all _per pais_ and not
by the record: for all is but matter _in fait_. _Quod fuit concessum._
_16 H. 7. 14._
[34] _Per_ Levinz serjeant. In fact the sheriffs make no warrants to the
bailiffs of liberties, but they only send the writ to them; and they
execute it upon some general warrant, which they have from the sheriffs
to execute all writs according to the agreement between the sheriffs and
bailiffs. But (_per curiam_) this general warrant serves for a warrant
to every particular case, for there must be a warrant in writing,
because a command by parol to the bailiff of a liberty is not
sufficient, _1 L. Ray._ 190. _Hammon_ v. _Jermyn_.
_N. B._ This assertion of the learned serjeant, though founded it is
possible on some instance within his knowledge, can never be understood
as true with respect to general practice.
[35] Bailiff of a liberty arrested the party, and delivered him to the
sheriffs deputy, from whom he was rescued, and judgement for the
plaintiff. _Burgh_ v. _Appleton, Sheriff of Essex_, cited _Cro. Jac._ 242.
See the Pleadings _Declarations in the Upper Bench_, 50. See also c. vi,
(pl. 1.) c. ix (fo. 50.)
But in _Boothman_ v. _Earl of Surry_, _T. 27 G. 3. B. R._ Defendant
being bailiff of the liberty of Hallamshire, in the county of York took
his prisoner to York jail and there delivered him into the custody of
the sheriff, and upon action of debt brought against him for an escape,
judgement for the plaintiff. _N. B._ Neither of the cases in Croke was
cited by defendants council.
[36] In the _Register_ are divers examples of original writs directed to
bailiffs of liberties: as for instance; writs of right patent, writs _de
warrantia diei_, writs of trespass, writs of _supersedens_, writs _de
cartis reddendis_, writs _de attornato pro custode_, writs _de attornato
pro secta facienda_, writs _de statuto_: The duchy court constantly
issues writs of _levari facias_ to bailiffs of the duchy liberties; in
all these cases the bailiff is immediate officer to the court, and hath
nothing to do with the sheriff, contrary to the argument in _Skin._ 413,
and _vide_ _F. N. B._ _passim_.
[37] This must be understood of a hundred in fee with _retorna brevium_
in the hands of a private person, of which there are several instances;
every other bailiff of hundred being a mere servant to the sheriff. And
note, that, where a man is _bailiff of fee_ in a county (_i. e._ a
bailiff itinerant, who hath the execution only of writs within the
county or hundred in fee) the sheriff shall not write to him as to
_bailiff of franchise_, and for his act _non omittas_ shall not issue,
nor shall he make mention of him in his return. _27 Ass._ p. 65. _Br.
Retorne de briefe_, 69.
[38] The sheriff of a county made a warrant _ballivis suis_ to arrest
the body of such a man, and the bailiffs of the liberty return a
rescous; and exception was taken to it, because the warrant was
_ballivis suis_, and the return was made by those who were not his
bailiffs; and it was adjudged good, for the liberty might be within his
bailiwick, and so are all the precedents. _March._ 25.
[39] But the defendant himself shall never take advantage of a liberty,
as if the bailiff of a liberty be defendant in any action, and process
of _Cap'_ or _Feri Fiac'_ comes to the sheriff against him, the sheriff
shall execute the process against him; for a liberty is always for the
benefit of a stranger to the action. _5 Rep._ 92.
CHAPTER V.
OF HIS DUTY _i. e._ WHAT HE MUST OR SHALL DO OR NOT DO.
[Sidenote: Return of precept.]
Baily of a liberty must return his precept [to the sheriff]. _2 Keble_,
838.
Where the sheriff returned capias _quod mandavi ballivo de D. qui
respondit quod cepit corpus, &c._ and hath not the body at the day, the
bailiff is bound to bring in the body, and not the sheriff, by _Hill_;
but by _Hank_ he ought to deliver it to the sheriff, and he to bring it
in as officer immediate, as upon _fieri facias_ the sheriff commands the
bailiff to levy the money, he delivers it to the sheriff, so that the
sheriff may have it at the day: _contra_ _Thirn_, and agreed with _Hill_.
_11 H. 4. 48_ _Br. Retorne de Briefe_, 35[40].
[Sidenote: Bail.]
By _W. 1. (3 E. 1.) c. 15._, such as be indicted of larceny, by inquests
taken before sheriffs or bailiffs by their office, or of light suspicion,
or for petty larceny which amounteth not above the value of 12d. if they
be not guilty of other larceny before that time, or guilty of the receit
of felons or of commandment or of force, or of aid of felony done, or
guilty of some other trespass for which a man ought not to lose life or
member, and a man appealed by the prover after the death of the prover,
if they be not known common thieves, shall be let out by sufficient
surety, whereof the sheriff will be answerable. And if sheriffs or others
let go upon surety any that is not replevisable, if he be sheriff,
constable, or other bailiff of fee, and who hath keeping of prisons, and
thereof be attainted, he shall lose his fee and bailiwick for ever. And
if undersheriff, &c. do it contrary to the will of his lord, he shall be
imprisoned three years, and be fined at the Kings pleasure. And if any
withhold prisoners replevisable after the prisoner hath offered
sufficient surety he shall be in the grievous mercy of the King; and if
he take reward for delivering him he shall render double to the prisoner,
and moreover shall be in the grievous mercy of the King.
By _23 H. 6. c. 9._ Sheriffs, undersheriffs, bailiffs of franchises, &c.
shall let out of prison all manner of persons by them arrested or being
in their custody by force of any writ, bill or warrant in any action
personal, or by cause of indictment of trespass, upon reasonable sureties
of sufficient persons, having sufficient within the counties where such
persons be so let to bail or mainprise, to keep their days in such place
as the said writs, bills or warrants shall require: Such person or
persons which shall be in their ward by condemnation, execution, capias
_utlagat'_ or _excommunicatum_, surety of the peace, and all such persons
which shall be committed to ward by special commandment of any justice,
and vagabonds refusing to serve according to the form of the statute of
labourers, only except. And that no sheriff, nor any of the officers or
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 for any person which shall be in
their ward by the course of the law, but by the name of their office, and
upon condition written, that the said prisoners shall appear at the day
contained in the said writ, bill or warrant, and in such places as the
said writ, bill or warrant shall require. And if any of the said
sheriffs, or other officers or ministers aforesaid, take any obligation
in other form by colour of their offices, that it shall be void; and that
he shall take no more for the making of any such obligation but 4d.
(penalty, treble damages to the party grieved and 40l. half to the King
and half to the party suing.) And justices of assises, of the bench and
of the peace, to enquire, hear and determine, &c.
By _13 C. 2. st. 2. c. 2._ § 2., no person or persons who shall happen to
be arrested by any sheriff, undersheriff, coroner, steward, or bailiff of
any franchise or liberty, &c. by force or colour of any writ, bill or
process issuing out of his majestys courts of the Kings Bench and Common
Pleas, or either of them, in which said writ, bill or process, the
certainty and true cause of action is not expressed particularly, and for
which the defendant or defendants in such writ, bill or process named, is
and are bailable by the statute in that behalf made in the three and
twentieth year of the reign of the late King Henry the Sixth, shall be
forced or compelled to give security, or to enter into bond with
sureties, for the appearances of such person or persons so arrested, at
the day and place in the said writ, bill or process specifyed or
contained in any penalty or sum or sums of money exceeding the sum of
forty pounds to be conditioned for such appearances; and all sheriffs and
other officers and ministers aforesaid, shall let to bail and deliver out
of prison, and from their and every of their custodies respectively, all
and every person and persons whatsoever, by them or any of them arrested
upon any such writ, bill or process wherein the certainty and true cause
of action is not particularly expressed, upon security in the sum of
forty pounds and no more, given for appearance of such person or persons
so arrested unto the said sheriff or officer aforesaid, according to the
said statute in the said three and twentieth year of the reign of the
said late King Henry the Sixth in that behalf made and provided.
[Sidenote: Treatment of person arrested.]
By _32 G. 2. c. 28._ § 1., no sheriff, undersheriff, bailiff, serjeant at
mace, or other officer or minister whatsoever, shall convey or carry, or
cause to be conveyed or carried any person or persons by him or them
arrested, or being in his or their custody by virtue or colour of any
action, writ, process or attachment to any tavern, alehouse or other
public victualling or drinking house, or to the private house of any such
officer or minister, or of any tenant or relation of his, without the
free and voluntary consent of the person or persons so arrested or in
custody; nor charge any such person or persons with any sum of money for
any wine, beer, ale, victuals, tobacco or any other liquor or things
whatsoever, save what he, she or they shall call for, of his, her or
their own free accord; nor shall cause or procure him, her or them to
call or pay for any such liquor or things, except what he, she or they
shall particularly and freely ask for; nor shall demand, take or receive,
or cause to be demanded, taken or received directly or indirectly, any
other or greater sum or sums of money than is or shall be by law allowed
to be taken or demanded for any arrest or taking, or for detaining or
waiting till the person or persons so arrested or in custody shall have
given an appearance or bail, as the case shall require, or agreed with
the person or persons at whose suit or prosecution he, she or they shall
be taken or arrested, or until he, she or they shall be sent to the
proper gaol belonging to the county, riding, division, city, town or
place where such arrest or taking shall be; nor shall exact or take any
reward, gratuity or money for keeping the person or persons so arrested
or in custody out of the gaol or prison; nor shall carry any such person
to any gaol or prison within four and twenty hours from the time of such
arrest, unless such person or persons so arrested shall refuse to be
carried to some safe and convenient dwelling-house of his, her or their
own nomination or appointment within a city, borough, corporation or
market-town, in case such person or persons shall be there arrested; or
within three miles from the place where such arrest shall be made, if the
same shall be not the house of the person arrested, and be within the
county, riding, division or liberty in which the person under arrest was
arrested; and then and in any such case, it shall be lawful to and for
any such sheriff or other officer or minister to convey or carry the
person or persons so arrested and refusing to be carried to such safe and
convenient dwelling-house as aforesaid, to such gaol or prison as he, she
or they may be sent to by virtue of the action, writ or process against
him, her or them.
[Sidenote: Expences of persons arrested.]
By § 2., no sheriff, undersheriff, bailiff, serjeant at mace, or other
officer or person, shall at any time or times hereafter take or receive
any other or greater sum or sums for one or more nights lodging, or for a
days diet, or other expences of any person or persons under arrest, on
any writ, action, attachment, or process other than what shall be allowed
as reasonable in such cases by some order or orders made by the justices
of the peace at some general or quarter-sessions which shall be held for
the county, riding, division, city, town or place where such arrest or
taking shall be.
[Sidenote: Printed copy of clauses.]
By § 3., every sheriff, undersheriff, and bailiff of any liberty, &c.
shall deliver a printed copy of the several clauses contained in this act
relating to bailiffs, serjeants and other officers and persons who shall
be employed under them respectively to execute any writ, process or
attachment, or who shall arrest any person on any action which shall be
entered or otherwise within their respective sheriffwicks or
jurisdictions, to every such bailiff, serjeant, officer, and other
person, and shall make it part of the condition of every security or bond
which shall be given or made to any such sheriff or undersheriff, or
bailiff of any liberty, by any bailiff, serjeant at mace, or other
officer or person who shall be employed or intrusted to execute any such
writ or process as aforesaid under him, them or any of them, that every
such bailiff, serjeant at mace, or officer and other person respectively,
shall and will shew and deliver a copy of the said clauses to every
person he shall arrest by virtue of any process, action, writ or
attachment, or under any warrant made out thereon, and carry or go with
to any public or other house where any liquor shall be sold, and also
shall and will permit every such person who shall be so arrested, or any
friend of him or her to read over the same clauses, before any liquor,
meat or victuals shall be at any such public or other house called for or
brought to any such person who shall be so under arrest there; and in
case any bailiff, serjeant at mace, or other officer or person shall in
any respect offend in the premises, every such offence besides the breach
of the condition of every such security bond, shall be accounted and
deemed a misdemeanor in the execution of the process or action on which
any such person was arrested, and shall be punishable as such by virtue
of this act.
[Sidenote: Privilege of persons arrested in sending for necessaries.]
By § 4., every sheriff, undersheriff, bailiff of any liberty, gaoler and
keeper of any prison or gaol, and other person and persons, to whose
custody or keeping any one shall be arrested, taken, committed or charged
in execution, by virtue of any writ, process, or action, or attachment,
shall permit and suffer every such person and persons, during his, her
and their respective continuance under arrest or in custody or in
execution for any debt, damages, costs or contempt, at his, her and their
free will and pleasure, to send for or have brought to him, her or them,
at seasonable times in the day-time, any beer, ale, victuals or other
necessary food, from what place he, she or they shall think fit, or can
have the same; and also to have and use such bedding, linen or other
necessary things, as he, she or they shall have occasion for and think
fit, or shall be supplied with during his, her or their continuance under
any such arrest or commitment, without purloining or detaining the same,
or any part thereof, or inforcing or requiring him, her or them to pay
for the having or using thereof, or putting any manner of restraint or
difficulty upon him, her or them, in the using thereof, or relating
thereto; and no such prisoner or prisoners shall pay any thing in respect
thereof to any such sheriff, undersheriff, bailiff of any liberty,
gaoler, keeper, or other person as aforesaid.
[Sidenote: Certificate of felons.]
By _3 H. 7. c. 3._ every sheriff, bailiff of franchise, and every other
person having authority or power of keeping of gaol or of prisoners for
felony, shall certify the names of every such prisoner in their keeping,
and of every prisoner to them committed, &c. at the next general
gaol-delivery in every county or franchise where any such gaol or gaols
have been or shall be, there to be kalendered before the justices of the
deliverance of the same gaol, upon pain to forfeit for every default an
hundred shillings.
[Sidenote: Felons goods.]
By _1 R. 3. c. 3._ no sheriff, &c. nor bailiff of franchise shall take or
seize the goods of any person arrested or imprisoned for suspicion of
felony before that the same person be convicted or attainted of such
felony according to law, or else the same goods otherwise lawfully
forfeited; upon pain to forfeit double the value of the goods so taken,
to him that is so hurt in that behalf.
[Sidenote: Return of jurors.]
By _W. 2. (13 E. 1.) c. 38._ In one assise no more shall be summoned than
four and twenty; and old men, above three score and ten years, being
continually sick, or being diseased at the time of the summons, or not
dwelling in that county, shall not be put in juries or petty assises. Nor
shall any be put in assises or juries though they ought to be taken in
their own county who have less tenement than to the value of twenty
shillings by the year. And if such assises and juries ought to be taken
out of the county, none shall be put in them who hath less tenement than
to the value of forty shillings by the year, those except who are
witnesses in charters or other writings whose presence is necessary, so
long as they are able to travel. Nor ought this statute to be extended to
great assises in which sometimes it behoveth to put knights not resident
in the county by reason of the scarcity of knights, so long as they have
tenement in the county.
By _21 E. 1. st. 1._ no sheriff, _&c._ stewards or bailiffs of liberties
shall put in any recognisances of juries, inquests, assises, and
attaints, out of their proper counties to be made, any of their
bailiwicks,[41] unless he have lands or tenements to the value of a
hundred shillings by the year at least.
By the _Articuli super chartas_, _28 E. 1. c. 9._ no sheriff nor bailiff
shall put in inquests nor in juries more people or others, or in other
manner than is ordained by statute and shall put in such inquests and
juries the most near, most sufficient and least suspicious.
By _42 E. 3. c. 11._ as to the return or answer of bailiffs of franchises
they shall make their answer to the sheriffs six days before their
session upon the pain of 20l. And in all manner of panels arrayed by
sheriffs, or bailiffs within franchise, shall be put the most sufficient
and worthy of faith and not suspected who have the best knowledge of the
truth and [are] the most near.
By _11 H. 4. c. 9._ no indictment shall be made but by inquest of the
Kings lawful liege people returned by the sheriffs or bailiffs of
franchises, without any denomination to the said sheriffs or bailiffs of
franchises before made by any person of the names which by him should be
impanelled, except it be by the officers of the said sheriffs or bailiffs
sworn and known to make the same.[42]
By _2 H. 5. st. 1. c. 8._ bailiffs of franchises shall cause to be
impanelled sufficient persons [who have lands, _&c._ to the 'value' of
10l. a year, to inquire of riots before the Kings commissioners] upon
pain to lose to the King 40l. in case such sufficient persons may be
found within the same franchises.
By _2 H. 5. st. 2. c. 3._ no person shall be admitted to pass in any
inquest upon trial of the death of a man, nor in any inquest betwixt
party and party in plea real nor in plea personal, whereof the debt or
the damage declared amounts to 40 marks, if the same person have not
lands or tenements of the yearly value of 40s. above the reprises thereof.
By _6 H. 6. c. 2._ bailiffs of franchises shall make their returns or
answer to the sheriffs in special assizes [_i. e._ as to panels between
demandant and tenant] eight days before the session, upon pain of 40l.
By _8 H. 6. c. 9._ when the justices or justice [of the peace] make
enquiries [of forcible entries], they shall make their warrants and
precepts to the sheriff of the county, commanding him on the Kings behalf
to cause to come before them sufficient and indifferent persons dwelling
about the lands entered, to enquire of such entries, of whom every one
who shall be impanelled to enquire in this behalf shall have land or
tenement of the annual value of 40s. at least above reprises. And that
the sheriff return issues upon every of them at the day of the first
precept returnable 20s. and at the second day 40s. and at the third time
100s. and at every day after double. And if any sheriff or bailiff within
a franchise having return of the Kings writ be slack and make not
execution duly of the said precepts to him directed to make such
enquiries, he shall forfeit to the King 20l. for every default and
moreover shall make fine and ransom to the King.
By _15 H. 6. c. 5._ no sheriff, bailiff of franchise, or coroner in
actions or writs of attaint of plea of land of the yearly value of 40s.
or more, or action of detinue of deeds concerning lands or tenements of
like value or more, or personal, whereof the judgement of the recovery
shall extend to the sum of 40l. shall return or impanel in any
inquisition or inquest, any persons but such as be inhabiting within his
bailiwick, which have estate of fee simple, fee tail or freehold in lands
and tenements of the yearly value of 20l. or more, nor shall return in
the Kings court less issues in the said action of attaint than 40s. at
the first writ of distress, and 100s. at the second writ of distress, and
the double of every other writ of distress against the persons impaneled
and returned to be sworn in the same actions (upon pain of 10l. to the
King and 10l. to the plaintiffs. Remedy if there be not sufficient men in
the franchise who have lands of the yearly value of 20l.)
By _23 H. 6. c. 9._ sheriffs, undersheriffs, bailiffs of franchises, nor
any other bailiff, shall return upon any writ or precept to them directed
for returning any inquests or any panels thereupon to be made, any
bailiffs, officers, or servants to any of the officers aforesaid, in any
panel by them to be made; nor shall take any thing by colour of his
office for the making of any return or panel, and for the copy of any
panel but 4d.
By _27 Eliz. c. 6._ § 1. in all cases where any jurors to be returned for
trial of any issue joined in any of the Queens courts of Kings Bench,
Common Pleas and the Exchequer, or before justices of assise ought to
have estate of freehold in lands, &c. of the clear yearly value of 40s.
the jurors shall every of them have estate of freehold in lands, _&c._ to
the clear yearly value of 4l. at the least, (penalty on sheriff, _&c._
for returning that cannot dispend so much, 20l.)
By § 2. upon every first writ of _habeas corpora_ or _distringas_ with a
_nisi prius_ delivered of record to the sheriff or other minister or
ministers to whom the making of the return shall appertain, [such
sheriff, _&c._] shall return in issues upon every person impanelled and
returned upon any such writ at the least 10s. and at the second writ 20s.
at the least, and at the third writ 30s. and upon every writ further
double the issues last afore specified, until a full jury be sworn, or
the process otherwise determined, upon pain of 5l.
By _27 Eliz. c. 7._ no bailiff of any liberty, nor any his or their
deputy or deputies, shall of himself return any juror, or deliver to the
sheriff, his undersheriff, deputy or deputies, the names of any persons
to be returned upon any panel or jury, without the true addition
certified under his or their hands to the sheriff, of the place of
dwelling or abode of every person so to be returned at the time of the
said return, or within one year next before the said return, or some
other addition by which the party returned may be known.
By _4 & 5 W. & M. c. 24._ § 15. all jurors (other than strangers upon
trials _per medietatem linguæ_) who are to be returned for trials of
issues joined in any of the courts of 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 in any
county of the realm, shall have in their own names, or in trust for them
within the same county, ten pounds by the year at least above reprizes,
of freehold or copyhold lands or tenements, or of lands and tenements of
ancient demesne, or in rents, in feesimple, feetail, or for the life of
themselves or some other person; and that upon every writ of _venire
facias_ the sheriff, coroner, and other ministers, unto whom the making
of the panel shall appertain, shall not return in any such panel any
person unless he then have 10l. by the year at least as aforesaid, in the
same county where the issue is to be tried; upon pain to forfeit for
every person, &c. the sum of 5l.
By § 16. no sheriff or bailiff of any liberty or franchise, or any of
their ministers, shall return any such person or persons as aforesaid, to
have been summoned by them, unless such person and persons shall have
been duly summoned, by the space of six days at least before the day on
which they ought to make their appearance; nor shall directly or
indirectly take money or other reward to excuse the appearance, of any
juror, by any of them to be summoned or returned, upon pain to forfeit
for every such offence the sum of 10l. [Continued by _7 & 8 W. 3. c. 32._
_9 G. 1. c. 8._ § 2. EXP.]
By _7 & 8 W. 3. c. 32._ § 4. all constables, tything-men and headboroughs
of towns in each county, or their deputies, shall yearly at the general
quarter-sessions of the peace to be holden for each county, riding or
division, in the week after the feast of St. Michael the arch-angel, upon
the first day of the said sessions, or upon the first day that the said
sessions shall be held by adjournment at any other particular division or
place, return and give a true list in writing of the names and places of
abode of all persons within the respective places for which they serve,
qualifyed to serve upon juries, with their titles and additions, between
the age of one and twenty and the age of 70 years, to the justices of the
peace in open court; which said justices, or any two of them, at the said
sessions, shall cause to be delivered a duplicate of the aforesaid
returned list, by the clerks of the peace of every county or riding, to
the sheriffs or their deputies, on or before the first day of January
next following, and cause the said lists to be fairly entered into a
book, by the clerk of the peace, to be by him provided and kept for that
purpose, amongst the records of the said court of sessions; and no
sheriff shall impanel or return any person or persons to try any of the
issues joined in any of the courts [of K. B. C. P. or E.] or to be or
serve in any jury at the assizes, sessions of _Oyer_ and _Terminer_, gaol
delivery, or sessions of the peace that shall not be named or mentioned
in the said list.
By § 5. every summons of any person qualifyed to any of the aforesaid
services shall be made by the sheriff, his officer or lawful deputy, six
days before at the least, shewing to every person so summoned the warrant
under the seal of the office wherein they are nominated and appointed to
serve; and in case any juror so to be summoned be absent from the usual
place of his habitation at the time of such summons, notice of such
summons shall be given by leaving a note in writing, under the hand of
such officer, containing the contents thereof, at the dwelling-house of
such juror, with some person there inhabiting the same[43]. [Made
perpetual by _6 G. 2. c. 37._]
By _4 Ann. c. 16._ § 6. every _Venire facias_ for the trial of any issue
in any action or suit in any of her Majestys courts of record at
Westminster shall be awarded of the body of the proper county where such
issue is triable. But
By § 7. nothing in this act contained shall extend to any writ,
declaration or suit of appeal of felony or murder, or to any indictment
or presentment of treason, felony or murder or other matter, or to any
process upon any of them or to any writ, bill, action or information upon
any penal statute.[44]
[Sidenote: View.]
By § 8. in any actions brought in any of her Majestys courts of record at
Westminster, where it shall appear to the court that it will be proper
and necessary that the jurors who are to try the issues in any such
actions, should have the view of the messuages, lands or place in
question, in order to their better understanding the evidence that will
be given upon the trials of such issues, in every such case the
respective courts in which such actions shall be depending, may order
special writs of _Distringas_ or _Habeas corpora_ to issue, by which the
sheriff or such other officer to whom the said writs shall be directed,
shall be commanded to have six out of the first twelve of the jurors
named in such writs, or some greater number of them, at the place in
question some convenient time before the trial, who then and there shall
have the matters in question shewn to them by two persons in the said
writs named to be appointed by the court; and the said sheriff or other
officer who is to execute the said writs shall by a special Retorn upon
the same, certify that the view hath been had according to the command of
the said writs.[45]
By _3 G. 2. c. 25._ § 2. duplicates of the lists [made according to _7 &
8 W. 3. c. 32._ _3 & 4 Ann. c. 18._ and this act] when delivered in at
the quarter sessions of the peace, and entered in 'the' book to be kept
by the clerk of the peace for that purpose, shall, during the continuance
of such quarter-sessions, or within ten days after, be delivered or
transmitted by the clerk of the peace to the sheriff of each county, or
his undersheriff, in order for his returning of juries out of the said
lists; and such sheriff or undersheriff shall immediately take care that
the names of the persons contained in such duplicates shall be faithfully
entered alphabetically, with their additions and places of abode, in some
book or books to be kept by him or them for that purpose.
By § 4. no persons shall be returned as jurors to serve on trials at any
assizes or _nisi prius_, or at the great sessions, or at the sessions for
the counties palatine, who have served within the space of one year
before in the county of Rutland, or four years in the county of York, or
of two years before in any other county, not being a county of a city or
town[46].
By § 5. the sheriff, undersheriff, or other officer to whom the return of
juries shall belong, shall from time to time enter or register in a book
to be kept for that purpose, the names of such persons as shall be
summoned, and shall serve as jurors on trials at any assizes or _nisi
prius_; or in the said courts of great sessions or sessions for the
counties palatine, together with their additions and places of abode
alphabetically, and also the times of their services; and every person so
summoned, and attending or serving as aforesaid, shall (upon application
by him made to such sheriff, undersheriff or other officer) have a
certificate testifying such his attendance or service done, which
certificate the said sheriff, _&c._ is to give without fee or reward; and
the said book shall be transmitted by such sheriff, _&c._ to his
successor from time to time.
By § 6. no sheriff, undersheriff, bailiff or other officer or person
whatsoever shall directly or indirectly take or receive any money or
other reward to excuse any person from serving or being summoned to serve
on juries; and no bailiff or other officer appointed by any sheriff or
undersheriff to summon juries, shall summon any person to serve thereon
other than such whose name is specifyed in a mandate signed by such
sheriff or undersheriff, and directed to such bailiff or other officer.
By § 8. every sheriff or other officer to whom the return of the _Venire
facias juratores_, or other process for the trial of causes before
justices of assize or _nisi prius_ in any county in England shall belong,
shall, upon his return of every such writ of _Venire facias_ (unless in
causes to be tried at bar, or in case where a special jury shall be
struck by order or rule of court) annex a panel to the said writ,
containing the christian [names] and surnames, additions and places of
abode of a competent number of jurors named in such lists as qualified to
serve on juries, the names of the same persons to be inserted in the
panel annexed to every _venire facias_, for the trial of all issues at
the same assizes in each county; which number of jurors shall not be less
than 48 in any county, nor more than 72, without direction of the judges
appointed to go the circuit and sit as judges of assize or _nisi prius_
in such county, or one of them.
By § 18. any person or persons having an estate in possession in land, in
their own right, of the yearly value of 20l. or upwards, over and above
the reserved rent payable thereout, such lands being held by lease or
leases for the absolute term of 500 years or more, or for 99 years or any
other term determinable on one or more life or lives, the names of such
persons shall be inserted in the respective lists as aforesaid, in order
to their being inserted in the freeholders book[47].
By § 20. the sheriffs or other officers to whom the returning of juries
doth or shall belong, for any county, city or place, shall not impanel or
return any person or persons to serve on any jury for the trial of any
capital offence, who at the time of such return would not be qualifyed in
such county, city or place, to serve as jurors in civil causes for that
purpose. [Made perpetual by _6 G. 2. c. 37._ § 1.]
[Sidenote: Distress.]
By _51 H. 3. st. 4._ (_De Districtione Scaccarii_) When a sheriff or
other the Kings bailiff doth take the beasts of another for the Kings
debt, or any other cause, they to whom the beasts belong may feed them
without disturbance so long as they be impounded, without giving any
thing for their keeping. And the beasts, nor no other distress taken for
the Kings debt, nor for any other cause be given, nor sold within fifteen
days after the taking. And if any bring the tally of a payment made in
the exchequer the distress shall cease. And if he bring the tally of any
sheriff or bailiff of payment made to him of the thing demanded, and will
find pledges to be at the exchequer at the next account, to do what shall
be right, then the distress shall cease. But no man of religion nor other
shall be distrained by his beasts that gain his land nor by his sheep,
for the Kings debt or the debt of another, nor for any other cause, by
the Kings bailiff nor by any other man, but until they can find another
distress or other chattels sufficient whereof they may levy the debt or
that is sufficient for the demand, except impounding of beasts when a man
finds them doing damage according to the law and usage of the land. And
that the distresses be reasonable after the amount of the debt or demand
according to reason and not outrageous. Howbeit all sheriffs and bailiffs
who have received the Kings debts of the summons of the exchequer, and
have not acquitted the debtors thereof at their next account, shall be
punished according to the statutes lately made.
[Sidenote: Replevin.]
By _Stat. de Marleberge_ _52 H. 3. c. 21._[48] if the beasts of any man
be taken and wrongfully withholden, the sheriff after complaint made to
him thereof, may deliver them without let or gainsaying of him that took
the said beasts, if they were taken out of liberties. And if they were
taken within liberties and the bailiffs of the liberty will not deliver
them, then the sheriff for default of those bailiffs shall cause them to
be delivered.
By _W. 1. c. 17._ if any take the beasts of others and cause them to be
driven to a castle or fortress[49], and there within the close of such
castle or fortress detain them against gage and pledge, after the beasts
shall be solemnly demanded by the sheriff or by the Kings bailiff, at the
suit of the plaintiff, the sheriff or bailiff taking with him the power
of his county or of his bailiwick[50] shall assay to make the replevin of
the beasts from him that took them or from his lord, or from others of
the men of his lord whatsoever they be, found in the place where the
beasts were chased; and if any deforce him of the deliverance of the
beasts, or that no man be found for the lord, or for him that took them,
to answer and make the deliverance after the lord or taker shall be
admonished thereof by the sheriff or bailiff, if he be in the country or
near or there whereas he may be conveniently warned by the taker or any
other of his, to make deliverance, if he were out of the country when the
taking was, and did not cause the beasts to be delivered incontinent,
that the King for the trespass and despite shall cause the said castle or
fortress to be beaten down without recovery; and it is to wit, that where
the sheriff ought to return the Kings writ to the bailiff of the lord of
the castle or fortress or other to whom the return belongeth, if the
bailiff of the franchise will not make deliverance after that the sheriff
hath made his return unto him, then shall the sheriff do his office
without further delay as is aforesaid and upon the aforesaid pain; and in
like manner, deliverance shall be made by attachment of plaint made
without writ, and upon the same pain.
[Sidenote: Hue and cry.]
By _W. 1. c. 9._ all generally are to be ready and appareled at the
commandment and summons of sheriffs, and at the cry of the country to
pursue and arrest felons, when need shall be, as well within franchises
as without. And if default be found in the lord of the franchise, the
King shall take the franchise to himself; and if the default be in the
bailiff he shall be imprisoned one year, and after be grievously fined,
and if he hath not whereof to be fined he shall be imprisoned two years:
And if sheriffs, coroners, or other bailiffs, within franchise or
without, conceal or consent or procure to conceal the felonies done in
their bailiwicks, or that they will not attach or arrest the misdoers
where they can, _&c._ and be attainted thereof, they shall be imprisoned
for one year and after be grievously fined, and if they have not whereof
to be fined, shall be imprisoned for three years.
By _Stat. de Wynton_ _13 E. 1. st. 2. c. 6._ sheriffs and bailiffs within
franchises and without, higher or lower, and that have any bailiwick or
forestry in fee or otherwise are to take good heed that they follow the
cry with the country, and that they have horses and armour to do it.
If bailiffs of liberties have come at the hue levyed according to this
statute is one of the articles of inquiry thereupon. _34 E. 1. st. 2._
[Sidenote: Names to returns.]
By _12 E. 2. c. 5._ sheriffs and other bailiffs who receive the Kings
writs returnable in his court shall put their proper names with their
returns, so that the court may know of whom they took such returns if
need be.
[Sidenote: Roberdesmen, &c.]
By _5 E. 3. c. 14._ if any man have suspicion of evil of roberdesmen,
wastours and drawlatches, be it by night or day, they shall be
incontinently arrested by the constables of the towns. And if they be
arrested within franchises, they shall be delivered to the bailiffs of
the franchises, and kept in prison till the coming of the justices
assigned to deliver the gaols. And in the mean time the bailiffs of the
franchises shall inquire of such arrests and at the coming of the
justices return their inquests before them and that which they have
found, and the causes of taking, with the bodies, and the justices shall
proceed to the deliverance of those arrested according to the law. And in
case bailiffs of franchises have not enquired of such arrests they shall
be amerced.
[Sidenote: Decayed bridges.]
By _22 H. 8. c. 5._ § 5. the justices of peace of the shire, city or town
corporate, within which any decayed bridges, or any part thereof, shall
happen to be, shall have power to enquire, hear and determine all
annoyances being within the limits of their commissions or authorities,
and if the annoyance be presented, then to make process into every shire
against such as owen to make or amend any such bridges. And all sheriffs
and bailiffs of liberties and franchises shall truly serve and execute
such process as shall come to their hands from the said justices of peace
afore whom any presentment shall be had for any such annoyance, according
to the tenour and effect of the said process to them directed, without
favour, affection or corruption, upon pain to make such fine as shall be
set upon them, or any of them, by the discretion of the said justices.
[Sidenote: Attendance on the justices.]
All lords that have franchises, or their bailiffs, shall attend upon the
justices of assise and gaol delivery, upon pain of forfeiture of their
franchises. _20 E. 4. 6._ _Br. Forfeiture de terres_, _&c._ 115.
By _27 H. 8. c. 24._ § 7. all stewards, bailiffs, and other ministers of
any liberties or franchises which in times past have used or ought to
attend upon the justices of assise, justices of gaol delivery, and
justices of the peace at large in any county, shall be attendant to the
justices of assise, justices of gaol delivery, and justices of peace of
the same shires wherein such liberties and franchises be, and make due
execution of all process to them to be directed, for ministration of
justice within such liberties or franchises; and all such bailiffs or
their deputies or deputy shall give their attendance and assistance upon
the sheriff, together with the sheriff's bailiffs at all courts of
gaol-delivery from time to time, for execution of prisoners according to
justice.
[Sidenote: Inquiry at sessions.]
It was an article of inquiry at the sessions if the bailiffs of liberties
and franchises had duly executed their office, which consists in three
points _viz._ In due execution of the precepts to them sent, and in due
returns to be made to the sheriff of those precepts, and that they took
nothing for doing their office, except the fees to them assigned and due
by course of law. _Fitz. Iust. P. fol. 28._ (_Crompton._ 49.)
And this inquiry was by virtue of _20 E. 3. c. 6._ whereby it is
ordained, that the justices assigned to take assises shall have
commissions sufficient to inquire in their sessions of sheriffs,
escheators, bailiffs of franchises, and their under-ministers, &c. and of
the gifts, rewards, and other profits, which the said ministers do take
of the people to execute their office, and that which pertaineth to their
office, and for making the array of panels, putting in the same suspect
jurors and of evil fame, &c. and to punish all them which thereof shall
be found guilty according as law and reason requireth, as well at the
Kings suit as at the partys.
[Sidenote: Account.]
By _stat. de Scac._ _51 H. 3. st. 5._ § 1. all sheriffs, fermors,
bailiffs of franchises, and other who ought to come to the profer in the
exchequer the morrow of St. Michael and the morrow of the clause of
Easter, to pay their farms, rents and issues which belong to the King,
shall come at the aforesaid terms, and there bring in full the aforesaid
farms, rents and issues, and pay them into the exchequer. And if any fail
to pay fully what he ought to pay as before is said, his body to remain
without departing till he have paid or made agreement. And he who shall
not come at the aforesaid terms shall be amerced according to the usages
of the exchequer. And at the same terms the sheriffs and bailiffs shall
bring their monies, and shall pay into the exchequer what they have
received at the summons of the exchequer and the other debts of the King,
and of all the things aforesaid, shall be ready and prepared to make
account.
By § 2. all the bailiffs of franchises who ought to levy the debts of the
King, and shall be answerable to the sheriffs at their commandment
according to the estreats of the summons of the exchequer, shall come and
answer sufficiently. And those who shall not, their bodies shall remain
in custody of the sheriffs; and the sheriffs, for their defaults, shall
send to levy the debts by their own bailiffs wherever they can, as they
have used to do in time passed. And if the bailiffs do not come to answer
at the day, the sheriffs shall let them know, the sheriffs shall enter
into the franchise, and cause the debts to be levyed by their own
bailiffs.
By § 7. when a sheriff or bailiff hath begun to account, no other shall
be received to account until the first that is appointed hath fully
accounted, and that the sum be received.
By § 9. about the feast of St. Margaret before the Exchequer be closed,
they shall every year narrowly search and see if a sheriff or other
bailiff who ought to have accounted that year have not. And if he be a
sheriff, _&c._ And if he be another bailiff he shall be summoned or
distrained that he come at a certain day to account, so that no account
be suffered to sleep.
[Sidenote: Estreats.]
By _42 E. 3. c. 9._ estreats shall not be doubled by the sheriffs, but
the copy of the estreats wherein they touch the franchises of lords shall
be delivered to the bailiffs of the franchises under the seal of the
sheriff, and the same bailiffs shall yield their account in the Exchequer
by the same copies and no other.
[Sidenote: Bailiffs of the Savoy, and Borough of Southwark.]
By _8 & 9 W. 3. c. 27._ § 15. it shall and may be lawful for any person
or persons, who have or hath any debt or debts, sum or sums of money due
or owing to him from any person or persons who shall be and reside within
the White-Friers, Savoy, Salisbury Court, Ram Alley, Mitre Court, Fullers
Rents, Baldwins Gardens, Montague Close, or the Minories, Mint, Clink, or
Deadmans Place, upon legal process taken out against such person or
persons, to demand and require the sheriffs of London and Middlesex, HEAD
BAILIFF OF THE LIBERTY OF THE DUCHY OF LANCASTER, or high sheriff of the
county of Surrey, or BAILIFF OF THE LIBERTY OF THE BOROUGH OF SOUTHWARK
for the time being (as the case shall require, if the plaintiff think it
requisite) or their respective deputy or deputies, officer or officers,
to take and they are thereby enabled respectively to take the _posse
comitatus_ or such other power as to them shall seem requisite, and enter
the said pretended privileged places, and to arrest, and in case of
resistance or refusal to open the doors, to break open any door or doors
to arrest such person or persons upon any mesne or other process, extent
or execution, or to seize the goods of any such person or persons upon
any execution or extent. (Penalty on the officer, for neglect or refusal
to execute process, 100l. and on those who resist him 50l. each,
commitment to gaol, and, on conviction, imprisonment and pillory, and for
rescuing a prisoner 500l. and, on nonpayment within one month after
judgement, transportation, and on inhabitants concealing any guilty of
rescous, transportation, unless they pay the whole debt and costs.)
[40] See before, p. 23. In Yorkshire, when bailiff of the liberty has no
prison of his own, the usage is for him to bring the body to the
sheriff, who makes out an ordinary commitment to the county jail.
[41] _De ballivis suis_; the printed translation reads "any of their
_bailiffs_;" but this is only one out of numberless instances of its
gross and shameful inaccuracy.
[42] This act extends to inquests before coroners. _Cro. Car._ 134.
[43] By § 9. The inhabitants of Westminster are exempted from serving in
any jury at the sessions before the justices of the peace for the county
of Middlesex.
[44] This proviso, with respect to actions or informations upon penal
statutes, is taken away by _24 G. 2. c. 18._ § 3.
[45] By _3 & 4 Ann. c. 18._ §§ 3, 4, particular directions are given
relative to the return of jurors within the county of _York_. See also
_1 Ann. st. 2. c. 13._ § 3. and _7 & 8 W. 3. c. 32._ §§ 7, 8.
[46] By _4 G. 2. c. 7._ § 1. this clause not to extend to the county of
_Middlesex_. And by § 2. no person shall be returned to serve as a juror
at any session of _nisi prius_ in the said county, who has been returned
at any such session, in the two terms or vacations immediately preceding.
[47] By _4 G. 2. c. 7._ all leaseholders in the county of _Middlesex_,
upon leases where the improved value shall amount to 50l. or upward _per
annum_, over and above all ground rents or other reservations, shall be
liable and obliged to serve upon juries.
[48] That this statute was made in a parliamentary council at
_Westminster_, in the _forty-third_ year of this King, and not at
_Marleberge_, in the _fifty-second_, is proved by Mr. Prynne in his
_Animadversions_ on _4 Inst._ p. 190.
[49] And so it is if he that distrain chase the distress into any other
house, park or other place of strength. _2 Inst._ 193.
[50] _Note_, every man is bound by the common law to assist not only the
sheriff in his office for the execution of the Kings writs, but also his
baily that hath the sheriffs warrant, &c. and if they do it not, being
required they shall be fined and imprisoned. _2 Inst._ 195.
CHAPTER VI.
OF HIS INDEMNITY AND PROTECTION.
[Sidenote: Arrest, and non-return of writ.]
If the sheriff command the bailiff of the franchise, who arrests the
defendant and sends him to the sheriff, if the sheriff return no writ,
the bailiff shall not be charged, for the arrest of the bailiff of the
franchise was lawful, and it shall be against reason that the non-return
of the sheriff should prejudice him. _8 E. 4. 17._ And see also _21 H. 7.
22._ _Keilwey_ 87. 89.
[Sidenote: Mandate.]
If the sheriff write to a bailiff of franchise in such form, _Ballivo
libertatis, &c. salutem, mandatum Domini regis recepi in hæc verba_, and
rehearse how the King commands by writ to take the body of such a one,
where no writ comes to the sheriff, this is a good excuse to the bailiff
of the franchise, and the party shall have his remedy against the
sheriff. _Dalton. Sheriff._ 112.[51]
[Sidenote: Old bailiff and new bailiff.]
If upon a _fieri facias_ against an administrator, the sheriff makes a
warrant to the bailiff of a franchise to execute it, and afterward the
bailiff is removed, and another bailiff elected, and afterward the old
bailiff returns in his own name to the sheriff that the administrator had
not any goods _preterquam_, &c. which is false, and afterward the sheriff
makes the return accordingly to the court, yet no action for this false
return lies against the old bailiff, for the return ought to be made in
the name of the new bailiff, and so the sheriff has accepted a return as
of a mere stranger, which is void; and he ought to take conusance of the
right ministers of the law, and therefore the old bailiff for this false
return is not punishable, but the sheriff. _1 Roll. Abr._ 99.
[Sidenote: False return of sheriff.]
Upon writ to the sheriff he first made warrant to bailiff of liberty, and
after to his own bailiff, who arrested the party and suffered him to
escape; and then sheriff returned _mandavi ballivo_; upon affidavit of
fact sheriff was ordered to attend. And agreed action lay against sheriff
for false return as _non est invent._ _&c._ and his amerciaments were
estreated. _12 Mod._ 311.
Action upon the case is maintainable against the sheriff for making the
return of a bailiff who was not bailiff at the time of the return, and
who had not executed the writ. _Moore_, 432.
Rule for the bailiff of the [liberty of the] duchy of Lancaster to return
the sheriffs mandate on a _fi. fa._ discharged, the warrant having been
directed to officers of plaintiffs nomination, and not to the officers of
the bailiff of the [liberty of the] duchy. _Barnes_, 416.
[Sidenote: Escape from gaoler of liberty.]
An attachment of contempt issued forth against defendant, for not
bringing Waldrons body into court, pursuant to a peremptory rule; and
defendant having been examined upon interrogatories, it was referred to
the prothonotary (as usual) to examine whether he had cleared himself of
the contempt, or not. The prothonotary reported the matter specially; and
the fact appeared to the court to be, that Waldron being confined in the
Gatehouse prison, Westminster, for a criminal matter, was, by leave of a
judge, charged there with a bailable action, in the following manner: A
_capias ad respondendum_ was directed to the sheriff of Middlesex, who
made a _mandate_ to the high bailiff of Westminster, and defendant was
charged in custody therewith, and afterwards escaped from the keeper of
the Gatehouse, which is the prison for the liberty of Westminster, to
which prison the high bailiff is obliged to carry his prisoners within 24
hours after arrest. The high bailiff being called upon for a return of
the _mandate_, returned _cepi corpus_, and that Waldron remained in the
custody of the keeper of the Gatehouse. Both the chief bailiff and the
keeper of the Gatehouse are appointed by, and hold their places under,
the dean and chapter of Westminster, and both give security to the dean
and chapter; but the keeper gives no security to the high bailiff. The
Court were of opinion, that the high bailiff had cleared himself of the
contempt, and ordered the attachment to be discharged. The high bailiff
did every thing in his power to secure the prisoner, and ought not to be
criminally punished. _Respondeat superior_ extends to civil matters only.
The prosecutor may bring his action for the escape. _Barnes_, 34.
[Sidenote: Escape.]
If prisoner taken by a bailiff of a franchise escapes from the bailiff,
the sheriff shall not have action upon the case against him, because he
is not chargeable _ouster_, but the bailiff is only chargeable. _1 Roll.
Abr._ 98.
J. S. was taken in execution by _Ca. Sa._ by the bailiffs of a liberty in
Suffolk, by warrant of the sheriff of the county. The bailiffs before the
return of the _Ca. Sa._ brought him to Westminster in the county of
Middlesex, and from thence, at the plaintiffs request, carried him to
Lambeth in Surrey, where he remained under their custody till the day of
the return of the writ, when they delivered him to the Kings Bench
according to the writ; this, by the advice of all the justices, was
adjudged no escape; for they thought that in whatever county in the way
or out of the way to Westminster, the sheriff detains or brings the
prisoner, if it be before the return of the writ it is no escape.
_Moore_, 299. _Burton_ [_Boyton_] v. _Andrews_. _3 Rep._ 43. _S. C._
If a bailiff of a manor pays the relief of his master to the lord to whom
it is due, he shall be allowed this upon his account, though he had no
warrant from his master so to do, because this is a casual thing of
common course. (_Contra_, of a thing that is not casual of common
course.) _41 E. 3. Account. 33._
[Sidenote: Rescous.]
If the Kings bailiff distrain for rent and rescous is made, the bailiff
shall have the writ of rescous and not the King. _F. N. B._ 101.
If the sheriff send unto the bailiff of the liberty to levy fines and
amercements for the King, and the bailiff distrain, and rescous is made,
the lord of the liberty shall have a writ of rescous, for the rescous,
the battery, and assault, and loss of service, all in one. _F. N. B._ 101.
If a man sue forth execution, and hath _capias_ directed to the sheriff
to arrest the party, and the sheriff make his warrant to the baily of the
Kings liberty to arrest him, and he doth arrest him, and others rescue
him from the bailiff, he who sued forth the execution shall have the writ
of rescous; but yet it seems reasonable that the bailiff shall have a
writ of rescous in such case, for some say he shall be chargeable, &c.
_F. N. B._ 101.
A warrant was from the sheriff to the bailiff of the 'liberty' of
Pomfret, who executed it, and rescue was made, and the bailiff brought
the action against the rescuers to recover damages: and it was held that
the bailiff may have this action in his own name, to recover damages for
this. _Clay._ 149. _Foster_ v. _Legerd_. (_Viner, Rescous. A._ 3.)
[Sidenote: Inquest by the sheriff.]
If bailiff of franchise return certain names to the sheriff, and the
sheriff return other names, though the inquest returned by the sheriff
shall be taken, yet bailiff shall have action against him. _30 Ass. p._
5. _Br. Retorne de briefe_. 73.
[Sidenote: Return by _7 & 8 W. 3. c. 32._ § 6.]
By _7 & 8 W. 3. c. 32._ § 6. the return to the justices [directed by this
act] shall be a good excuse and bar in law for the sheriff, for such
summons and returns [as thereby directed]: and if any action or
information shall be brought or prosecuted against any sheriff for such
return, the said sheriff may plead the general issue, and give this act
in evidence; and if the plaintiff be nonsuited, discontinue his action,
or if a verdict be given for the defendant, or a _noli prosequi_ be
entered in any information, or a verdict pass for the defendant
thereupon, the plaintiff or informer shall pay treble costs, to be
awarded by the court in which such action or information was prosecuted,
and levyed by usual process. _Note_, that although the word _sheriff_ be
alone made use of in this clause, yet it seemeth that the bailiff of the
franchise shall in such case be intitled to the full benefit thereof.
[51] This case is printed by Mr. Dalton as an extract in French, and he
refers to _10 H. 6. 37._ But there is no such folio in that year. Mr.
Dalton has certainly the appearance of having been a very industrious
man, but the most gross inaccuracy is perhaps the least of his faults.
He is therefore to be read and quoted (if at all) with great caution.
And it might not be amiss if the same caution were extended to Master
Kitchin, who deserves the title of an authority little better than Mr.
Dalton.
CHAPTER VII.
OF HIS RESPONSIBILITY AND PUNISHMENT
[Sidenote: Omission of name in return.]
By _12 E. 2. c. 5._ if any sheriff or other bailiff in his returns leave
out his name he shall be grievously amerced to the Kings use.
[Sidenote: False returns.]
By _1 E. 3. st. 1. c. 5._ against the false return of bailiffs of
franchises, which have full return of writs, a man shall have averment,
and recover as well against them as against the Kings sheriff, as well of
too little issues returned as in other cases, so that it fall not in
prejudice of the lords in imblemishment of their franchises. And all the
punishment [shall] fall only upon the bailiffs by punishment of their
bodies if they have not whereof to answer.
An action is maintainable against bailiff of a franchise who makes false
return, and not against the sheriff. _Moore_, 432.
If the bailiff of a franchise makes a false return to the sheriff, and
the sheriff returns it to the court accordingly, an action upon the case
lyes against the bailiff, and not against the sheriff, for no default is
in him. _1 Roll. Abr._ 98. For the sheriff ought to accept the return of
the bailiff if it be sufficient in law, and not to examine the truth of
it. _1 Roll. Abr._ 99.
[Sidenote: Writ _ad distringendum ballivum_.]
_Debt_, the sheriff returned _Capias, Quod mandavi ballivo, &c. qui
respondit quod cepit corpus_, and the person does not come, and the
sheriff was amerced [Q. _For what reason?_] and writ awarded _ad
distringendum ballivum ad habendum corpus, &c._ _47 E. 3. 25._ _Br.
Retorne de briefe._ 24. But yet
[In] _Replevin_ [where] the sheriff returned the _Capias, Quod mandavi
ballivo, qui mihi respondit quod haberet corpus ejus hic ad hunc diem_,
and the body did not come, _non omittas_ was awarded, and not _distringas
ballivum ad habendum corpus_. _38 E. 3. 1._ _Br. Retorne de briefe._ 44.
_Case_; for that upon a Capias directed to him against J. S. he _made a
warrant to a bailiff of a franchise to arrest_ the said J. S. which was
done accordingly, and yet the sheriff returned _non est inventus_.
Resolved _per tot. cur._ that the action well lay; and Anderson said,
that if the sheriff had returned that he had sent to the bailiff of the
liberty, who had given this answer, that he had arrested the body, it had
been good, and the sheriff had been discharged, and the process should
have issued against the bailiff of the liberty to bring in the body.
_Cro. Eliz._ 729.
[Sidenote: Bailiff plaintiff, hath not the body at the day.]
Where sheriff returned _quod mandavi ballivo, &c._ who is plaintiff, if
the bailiff returns _quod cepit corpus_ of the defendant, and hath him
not at the day, &c. the bailiff shall be amerced, and not the sheriff;
and the sheriff is not bound to take conusance if the bailiff be
plaintiff or not, for it may be another of the same name. _36 H. 6. 1._
_Br. Retorne de briefe._ 65.
[Sidenote: False return for extortion.]
_Capias_, the sheriff returned _mandavi ballivo, & quod ipse cepit
corpus, sed illud hic habere non potest quia languidus est, &c._ And
defendants wife came and said that he is not sick but detained by the
bailiff for extortion, and prayed remedy. Whereupon a writ issued to the
bailiff to return the body, and to appear; and upon examination it was
found that the party was not sick, whereupon the bailiff was committed to
the Fleet to make fine, and the writ against the bailiff was _subpoena_
40l. to appear and bring the body, &c. _11 H. 6. 42._ _Br. Retorne de
briefe._ 123.
[Sidenote: Escape.]
If a writ of execution comes to the sheriff, and he makes mandate to the
bailiff of franchise, who takes him, and after suffers him to escape,
action lyes against the bailiff of the franchise, and not against the
sheriff. _5 E. 4. 1 b. 2._ _Brook, Escape_ 40. _1 Roll. Abr._ 99. _Noy._
27. _Buller. N. P._ 69.
If a man be in prison for execution in a county or in a liberty, the
gaoler cannot bring him out of the county or liberty, unless in special
case; and if he does it the prisoner may have action of false judgment,
unless he has special authority, as by privy seal to be at Westminster,
or the like. _30 H. 6. 6._ _Br. Escape_, _pl._ 44.
If a warrant out of a _Fieri facias_ to levy a debt at the suit of J. S.
be directed to an under-bailiff of a liberty, and he by force thereof
levys the debt, and afterwards conceals the writ, nor makes any
certificate thereof, an action upon the case lyes against the
under-bailiff, because he has made a personal tort. _1 Roll. Abr._ 94.
[Sidenote: Non-return of the warrant.]
If the bailiff of the franchise arrest the party, and do not return the
warrant to the sheriff, action of false imprisonment lyes against him for
the party. _Keilwey_, 86, _b._[52]
Eyres sued a writ out of _C. B._ _versus_ Smith, directed to the sheriff
of York, who sent a warrant to Simpson, the bailiff of the liberty of
Pomfret, who did not return the writ [warrant]: upon which he was amerced
50l. (_viz._ time after time) and that was estreated into the exchequer:
afterwards Eyres and Smith agreed, and upon producing a certificate from
the attorney for the plaintiff that the debt was satisfied, these
amerciaments were discharged upon motion to the barons. _Note_, There
ought to be a constat of the estreats, and, as the clerks said, the court
uses not to discharge the amerciaments, but 'allows' you to compound
them. _1 Salk._ 54.
Rule made for an attachment of contempt against the bailiff of the
liberty of Holderness, in the county of York, for not returning a
_mandate_ made by the sheriff, on an attachment of privilege, pursuant to
a peremptory rule to return the same within six days notice, without any
return of a _mandavi ballivo_, antecedent to the said peremptory rule; on
an affidavit of service of that rule, and an affidavit of searching the
sheriff's office, after the expiration of the six days, and that the
_mandate_ was not returned; all the officers present reporting this to be
the practice. _Barnes_, 35.
Though by agreement between a bailiff of a franchise and his deputy, the
deputy is restrained to serve process beyond such a sum, yet if he serves
process of a greater sum without other warrant, and after levies the
money, the bailiff shall be chargeable. _Litt._ 33. _Viner, Actions
[Case. Disceit.] F. c. 5._
[Sidenote: Escape of felon.]
If the bailiff of a franchise that hath a gaol, hath the custody of a
felon, he is chargeable for his escape, and not the sheriff or his
gaoler. _1 Hale P. C._ 595.
[Sidenote: King to have fines on bailiff.]
[Sidenote: Amerciaments for insufficient returns.]
By _27 H. 8. c. 24._ § 9. the King, his heirs and successors, shall have
all manner of fines, issues, amerciaments and forfeitures that shall be
lost, forfeit or assessed by or upon any stewards, bailiffs or other
ministers or officers of any franchises or liberties, for non-execution,
mis-execution or insufficient returns of such writs, warrants, precepts
or other process, which to them or to their deputies shall be directed,
or for any contempt or other misdemeanor whatsoever it be, concerning
their offices, in and for the due execution or administration of justice.
And the amerciaments for insufficient returns of writs or other process
made by stewards or bailiffs of liberties or franchises, having returns
of writs and execution of the same, shall be put and set upon the heads
of such stewards or bailiffs, and not upon the sheriffs[53].
[Sidenote: Acts against sheriffs extended to bailiffs.]
By § 14. every statute and act theretofore made and being in force
against sheriffs, their undersheriffs, bailiffs or other ministers, for
making or returning of panels or juries, or for due execution or serving
of any writs or other process, or for taking of fees, or for reformation
of extortions, or for any other thing or things concerning their offices,
and all pains and penalties contained in every such statute shall be
extended to all stewards, bailiffs and other ministers and officers of
liberties and franchises having returns of writs and executions thereof,
in like manner, form and condition as they extend to the sheriffs, their
undersheriffs, bailiffs or other ministers. (But by § 15. this article
not to be prejudicial to any steward, bailiffs of franchises or to their
deputies or clerks for exercising and occupying their offices above one
year.)
[Sidenote: Returning persons not summoned.]
By _27 Eliz. c. 6._ § 3. if any sheriff, undersheriff, bailiff or other
minister do return any person or persons to be summoned to appear in any
jury, wherein he shall for default of his appearance lose or forfeit any
issues, where in truth such person shall not be lawfully summoned, the
same sheriff, &c. shall forfeit, lose and pay unto the said person or
persons so returned double the value of the issues by such juror or
jurors lost or forfeited for his [or their] default of appearance.
[Sidenote: Taking money, _&c._ for not returning jurors.]
By § 4. if any sheriff, &c. or any bailiff of franchise, shall receive,
take, or have by himself or by any other, any sum of money, reward or any
other profit, directly or indirectly, or do take any promise, make any
agreement, or assent to have any sum of money, reward or other profit,
directly or indirectly, of any person or persons, for the sparing, not
warning, or not returning of any person to be sworn as juror, for the
trial of any issue joined or to be joined in any of the Queens Majestys
courts [of K. B. C. P. or E.], or before any justices, every sheriff,
_&c._ or bailiff of franchise so offending, to forfeit for every such
offence the sum of 5l. (half to the Queen, and half to the person suing.)
[Sidenote: Offences against _27 Eliz. c. 12._]
By _27 Eliz. c. 12._ § 5. if any undersheriff or other person mentioned
in this act, shall do or commit any act or acts contrary to the oaths
aforesaid, or either of them (See B. II. C. 3.) or contrary to the true
intent and meaning of this act, every such person so offending shall
forfeit and lose for every such offence, to the party or parties grieved,
his or their treble damages.
[Sidenote: Summoning persons contrary to _7 & 8 W. 3. c. 32._]
By _7 & 8 W. 3. c. 32._ § 6. if the sheriff, his deputy or deputies,
bailiff or bailiffs, shall summon and return any freeholder or
copyholder, to 'try any issues joined in any of the courts [of K. B. C.
P. or E.] or to be or serve on any jury at the assizes, sessions of
_oyer_ and _terminer_, gaol delivery or sessions of the peace', otherwise
than as 'directed by this act,' (See B. II. C. 5.) or in any ways neglect
his or their duty or duties in the service or services of them required
by this act, or excuse any person or persons for favour or reward, or
allow of any writ of _non ponendis in assizis & juratis_, or other writ,
to excuse or exempt any person or persons from the service of any jury or
juries, under the age of 70 years, such sheriff, deputy or bailiff shall
for every transgression forfeit the sum of 20l. to be recovered by the
party or parties grieved or injured, or whom else will sue for the same.
[Sidenote: Summoning persons contrary to _3 G. 2. c. 25._ § 3.]
By _3 G. 2. c. 25._ § 3. in case any sheriff, undersheriff, bailiff or
other officer to whom the return of juries shall belong, shall summon and
return any person or persons to serve on any jury in any cause to be
tryed before the justices of assize or _nisi prius_ or judges of the
great sessions, or the judge or judges of the sessions for the counties
palatine, whose name is not inserted in the duplicates delivered or
transmitted to him or them by the clerk of the peace, if any such
duplicate shall be delivered or transmitted, any judge or justice of
assize or _nisi prius_ or judge or judges of the said great sessions, or
the judge or judges of the sessions for the said counties palatine, shall
and may, upon examination in a summary way, set such fine or fines upon
such sheriff, _&c._ for every such person so summoned and returned as
aforesaid as the said judge or justice of assize, _nisi prius_, _&c._
shall think meet not exceeding 10l. and not less than 40s.
[Sidenote: Wilful transgression contrary to _3 G. 2. c. 25._ § 4.]
By § 4. if any sheriff shall wilfully transgress [in returning any
persons as jurors to serve on trials at any assizes or _nisi prius_, or
at the great sessions, or at the sessions for the counties palatine who
have served within the space of one year before in the county of Rutland,
or four years in the county of York, or of two years before in any other
county, not being a county of a city or town,] any judge or justice of
assize, or _nisi prius_, _&c._ may and is required, on examination and
proof of such offence, in a summary way, to set a fine or fines upon
every such offender as he shall think meet, not exceeding 5l. for any one
offence.
[Sidenote: Wilful transgression contrary to _3 G. 2. c. 25._ § 6.]
By § 6. if any sheriff, undersheriff, bailiff or other officer shall
wilfully transgress [in taking or receiving any money or other reward to
excuse any person from serving or being summoned to serve on juries; or
any bailiff or other officer appointed by any sheriff or undersheriff to
summon juries, in summoning any person to serve thereon other than such
whose name is specifyed in a mandate signed by such sheriff or
undersheriff, and directed to such bailiff or other officer], any judge
or justice of assize, _nisi prius_, _&c._ may and is required, on
examination and proof of such offence, in a summary way, to set a fine or
fines upon any person or persons so offending as he shall think meet, not
exceeding 10l. according to the nature of the offence.
[Sidenote: Offences against _32 G. 2. c. 28._]
By _32 G. 2. c. 28._ § 12. every sheriff, undersheriff, bailiff of any
liberty, bailiff, serjeant at mace, gaoler and other officer and person
as aforesaid, who shall in anywise offend against this act (see before C.
5.) shall, for every such offence (over and above such penalties and
punishments as he or they shall be liable unto by the laws now in force)
forfeit and pay to the party thereby aggrieved the sum of 50l. to be
recovered with treble costs of suit, by action of debt, bill, plaint or
information, in any of his Majestys courts of record at Westminster.
[Sidenote: Account.]
By _Stat. de Marleberge_ (_52 H. 3. c. 23._) if bailiffs which ought to
make account to their lords do withdraw themselves and have no lands nor
tenements whereby they may be distrained, they shall be attached by their
bodies, so that the sheriff in whose bailiwick they be found shall cause
them to come to make their account.
[Sidenote: Wreck and stray, &c.]
Account lies of wreck and stray though the bailiff does not seize it; for
he shall account of all that he received and might have received. _Br.
Accompt._ _pl._ 94. (_cites_ _10 H. 7. 6._)
So of toll, and of the profits of a common pound. _Ibid._
[52] If execution be directed to a sheriff to arrest any man or to make
execution within a liberty, and the sheriff directs his warrant to a
[_l._ the] bailiff of the liberty for to make execution of the process,
'who' makes it, and after is a fugitive, and not able to answer for
that, the lord of the franchise shall answer for that, and shall be
liable to answer for his bailiff by all the justices. _2 Brownlow._ 50.
[53] Before this statute, when the return which the bailiff of the
franchise made to the sheriff was not sufficient, the court has refused
to amerce the bailiff, because he was not minister to the court.
_T. 20 E. 3._ _Fitz. Retourne del vicount._ 113.
CHAPTER VIII.
OF HIS FEES.
[Sidenote: Arrest.]
By _23 H. 6. c. 9._ sheriffs, undersheriffs, bailiffs of franchises, nor
any other bailiff, by occasion or under colour of their office, shall
take any other thing of any person by them to be arrested or attached for
the omitting of any arrest or attachment, for fine, fee, suit of prison,
mainprise, letting to bail, or shewing any ease or favour to any such
person, for their reward or profit, but such as follow, _viz._ For the
sheriff, 20d.; the bailiff which maketh the arrest or attachment, 4d.;
and the gaoler, if the prisoner be committed to his ward, 4d.; nor for
the making of any return or panel, and for the copy of any panel, but 4d.
(Penalty treble damages and 40l.)
[Sidenote: Extent or execution.]
By _29 Eliz. c. 4._ it shall not be lawful to or for any sheriff,
undersheriff, bailiff of franchises or liberties, nor for any of their
officers, ministers, servants, bailiffs or deputies, by reason or colour
of their office or offices, to have, receive or take of any person or
persons whatsoever directly or indirectly for the serving and executing
of any extent or execution, upon the body, lands, goods or chattels of
any person or persons whatsoever, more or other consideration or
recompence than 12d. for every 20s. where the sum exceedeth not 100l. and
6d. for every 20s. being over and above the said sum of 100l. that he or
they shall so levy or extend, and deliver in execution, or take the body
in execution for, by virtue and force of any such extent or execution,
upon pain to lose and forfeit to the party grieved his treble damages,
and to forfeit the sum of 40l. (half to the Queen and half to the
informer or plaintiff.)
The bailie of the franchise on _29 Eliz. cap. 4._ takes all execution
fees. _3 Keble_. 71.
[Sidenote: _Habere facias possessionem aut seisinam._]
By _3 G. 1. c. 15._ § 16. it shall not be lawful for any sheriff, _&c._
or for the bailiff of any franchise or liberty, by reason or colour of
their office or offices, or by reason or colour of their executing of any
writ or writs of _habere facias possessionem aut seisinam_, to demand,
ask, or receive any other or greater consideration, fee, gratuity or
reward, than is hereafter mentioned (which shall be lawful to be demanded
and taken); that is to say, the sum of 12d. for every 20s. of the yearly
value of any manor, messuage, lands, tenements and hereditaments, whereof
possession or seisin shall be by them or any of them given, where the
whole exceedeth not the yearly value of 100l. and the sum of 6d. only for
every 20s. _per annum_, over and above the said yearly value of 100l.
(Penalty 200l.)
[Sidenote: Extent and _liberate_, &c.]
By _8 G. 1. c. 25._ § 5. no sheriff to take for the extent and _liberate_
& _habere facias possessionem_ or _seisinam_ on the real estate, by
virtue of such extent, any more than the above fees. (Same penalty.)
[Sidenote: Process, under 10l. &c.]
By _5 G. 2. c. 2._ § 2. no attorney, bailiff or other person, shall have,
take, charge, or demand more than 5s. for the making and serving a copy
of such process issuing out of any superior court [where cause of action
is under 10l.], or more than 1s. for the making and serving a copy of
such process, issuing out of any inferior court [where cause of action is
under 40s.]
[Sidenote: English notice.]
By § 3. no fee or reward shall be taken for the English notice by this
act required to be written upon every copy of process [where cause of
action in superior court is under 10l. in inferior court under 40s.] to
be served upon any defendant.[54]
[54] This notice is to the effect following, _viz._ _A. B. You are
served with this process, to the intent that you may by your attorney
appear in his Majestys court of ---- at the return thereof, being the
---- day of ---- in order to your defence in this action._
CHAPTER IX.
PLEADINGS.
[Sidenote: Creation.]
One may be bailiff by a simple grant (_i. e._ by parol) or patent or
inheritance, and therefore no need to shew how. _H. 33. H. 6. [3.]_
_Fitz. Monstrauns de faitz, &c._ 93. and _Br. Bailie_. 2.
[Sidenote: Patent.]
[Sidenote: Duchy.]
[Sidenote: Aid of the King.]
Where a man justifies distress as the Kings bailiff of his manor, for
rent or services arrear, and prays aid of the King, he shall have it
without shewing patent how he is made bailiff, for he claims to the use
of the King; but where he claims to his own use by the King, there he
ought to shew patent; and it was held by the serjeants, that if a man
justify as bailiff of the King by reason of his manor which he hath by
reason of the duchy of Lancaster, that the defendant shall not have aid
of the King before issue joined. _15 H. 7. 17._ _Br. Ayde del roy_, 51.
[Sidenote: Corporation.]
Bailiffs of a corporation (in avowry for beasts taken _damage feasant_)
need not shew how the corporation was incorporated, nor say by their
precept, nor need precept be in writing for such a matter as this. _3
Lev._ 107.
[Sidenote: Distress.]
Bailiff who distrains ought to shew in what right he distrains. _7 H. 4.
28._ _Br. Distresse_, 78.
[Sidenote: Distress for amerciament.]
To bailiff justifying distress for amerciament, it sufficeth to take
conusance of the presentment and no more and _non refert_ as to him,
whether it be true or not. _41 Ed. 3. 27._ _24 Ed. 3. 26._ _Cro. Eliz._
748.
Bailiff justifying distress for amerciament, in trespass ought to set out
some estreat of the court or warrant from the steward, and justify under
that. _1 Salk._ 108.
Bailiff justifying distress for amerciament in leet in trespass may plead
_presentatum fuit_ without averring the fact, for _non refert_ as to him
whether the offence was done or not since there was a presentment: a
difference between replevin and trespass; in the first the bailiff is an
actor, and is to recover, which shall be upon the merits; in trespass he
is only to excuse the wrong. _1 Salk. 107._ _3 Salk. 52._
[Sidenote: Exchequer.]
If a man be amerced in the Kings leet, and upon process out of the
exchequer the bailiff distrains him for the amercement, and he brings
trespass, he ought to bring this action of trespass in the office of
pleas of the exchequer, for the bailiff levyed it as officer of this
court. _1 Roll. Abr._ 539. and _vide_ _Lane_, 55.
[Sidenote: Averment.]
If bailiff do any thing which touches his bailiwick, as payment of rents
and such like, which are due in right of the manor, it is reasonable that
he should have the averment, but of a thing which doth not touch his
bailiwick it is not reasonable that he should have the averment without
warrantry. _42 E. 3. 6._ _Br. Accompt._ 26.
Where bailiff of franchise [under _23 H. 6. c. 9._] takes bailbond, to
himself, by the name of his office, sufficient in pleading to shew
generally that he is such a person as had authority to take bail.
_Comyns_, 380.
Debt upon bond by the plaintiff who was chief bailiff of the liberty of
Pontefract in Yorkshire, but he did not declare as _capital' ballivus_,
but yet by the whole court it was held good; for otherwise the defendant
might have craved _oyer_, and have [had] it entered _in hæc verba_, and
then have pleaded the statute of _23 H. 6._ that it was taken _colore
officii_, but now it shall be intended good upon the demurrer to the
declaration. And _Ellis, J._ said, that so it was lately resolved in this
court in the case of one Conquest. And judgement was given for the
plaintiff. _2 Mod._ 36.
[Sidenote: Inferior court.]
Bailiff of an inferior court the process whereof he executes, must shew
the jurisdiction of that court in pleadings. _1 Keble_, 53.
[Sidenote: Trial.]
Cary bailiff of Westminster _v._ Buckhurst for entering his liberty and
executing a _fi. fa._ Demurrer that it doth not appear how plaintiff was
seized of the office. Judgement for plaintiff, inquiry of damages to 49l.
Affirmed in error. Upon a trial the right must have been proved if the
defendant had taken issue, and no inconvenience in this form of
declaring. _1 Show_, 17. _Comb._ 31. _S. C._
[Sidenote: Tort.]
Where a bailiff is charged directly with a tort, it ought to be shewn
that he is bailiff of a liberty, who has _Returna Brevium_. _Comyns_, 379.
[Sidenote: Declaration v. bailiff.]
Declaration against bailiff of Westminster, because plaintiff doth not
say of what liberty he is bailiff, and whether he hath execution and
return, bad; because otherwise no colour to charge him, and therefore
ought to be specially shewn. _Cro. Car._ 330.
[Sidenote: Pernor.]
[Sidenote: Quo warranto.]
Against a _pernor_ the plaintiff need not shew how he claims the
privilege of return of writs; but in a _quo warranto_ where the defendant
must make a title he ought to shew it. _Hardres_, 423.
[Sidenote: Return of the writ.]
Bailiff of a liberty in justification need not shew the return of the
writ. _Cro. Car._ 447.
[Sidenote: Sheriffs return.]
_Debt_, to the _capias_ the sheriff returned _non est inventus_, the
plaintiff shewed that the sheriff made a precept to the bailiff of the
franchise to take the body, who took him and delivered him to the
sheriff, which he would aver, _&c._ _Tota curia_, you shall not have this
averment against the return of the sheriff. Nor in any case, but too
little issues by the statute. _H. 2 H. 4. 14._ _Fitz. Averment_, 17.
In case against a bailiff for the false return of _nulla bona_ upon a
_fieri facias_, the question was upon the evidence at the trial, whether
the bailiff of a liberty shall be concluded in point of evidence by the
return of the sheriff? and _per curiam_, he is concluded; and if the
sheriff makes any other return than that which the bailiff makes to him,
he may have his action against the sheriff; and it was said that Holt,
chief justice, was of this opinion. See _36 Hen. 6. 40 [1.]_ _L. Raym._
184.
[Sidenote: Mandate.]
Upon a demurrer, Powel said that the plea was naught, because it sets
forth a mandate to the bailiff of the liberty, and did not shew that it
was under the hand and seal of the sheriff. _2 Vent._ 193. But see _1
Ventris_, 46. that on motion to quash a return of a rescous, because it
was _mandavi ballivis_, who took him _virtute warr' præd'_, and it was
said, _mandavi_ did not imply that it was in writing, the exception was
disallowed by the court.[55]
[Sidenote: County.]
Where any thing is shewed to be done within a liberty or a franchise,
there it is not necessary to shew within what county that liberty or
franchise doth lie. _Trin. 23. Car. B. R._ For the franchise hath no
relation to the county. _S. P. R._ 404.
[55] And quære whether mandate be ever pleaded to be under the _hand_ of
the sheriff.
_Nota_, that _mandavi_ does not mean, and of course should not be
translated, _I have commanded_, but _I have sent to_. The sheriff cannot
_command_ the bailiff of the franchise, having no sort of authority over
him in any case whatever.
APPENDIX.
No. I.
CAPIAS BILL.
_Middlesex._ The sheriff is commanded that he take _A. B._ if he may be
found in his bailiwick, and him safely keep, so that he may have his body
before the lord the King, on Wednesday next after fifteen days from the
day of Easter, to answer _C. D._ gentleman, of a plea of trespass; and
also to a bill of the said _C._ against the aforesaid _A._ for one
hundred pounds of debt, according to the custom of the court of the said
lord the King, before the King himself to be exhibited, and that he have
there then this precept.
No. II.
WARRANT TO THE BAILIFF OF THE LIBERTY.
To the bailiff of the liberty [of the Lord the King] [of his duchy of
_L._] of _E._
_Middlesex._ By virtue of the Kings writ issued out of his Majestys Court
of Kings Bench at Westminster, to me directed, I command you that you
take _A. B._ if he may be found in your liberty and him safely keep, so
that you may have his body before the lord the King, on Wednesday next
after fifteen days from the day of Easter, to answer _C. D._ gentleman of
a plea of trespass; and also to a bill of the said _C._ against the
aforesaid _A._ for one hundred pounds of debt, according to the custom of
the court of the said lord the King, before the King himself to be
exhibited. Dated the ---- day of ---- 17--.
_R._ (the attorneys name.)
Oath for 59l. and upwards.
Before you arrest the defendant, beware he is not an ambassador or
servant to an ambassador, or in some other way priviledged or protected.
Precept signed ---- inst.
_F. G._ } Sheriff.
_H. I._ }
No. III.
BAILIFFS WARRANT TO HIS UNDER-BAILIFFS.
_J. K._ esquire, bailiff of the liberty of [the lord the King] of _E._ in
the county of Middlesex, to _L. M. N. O._ and _John Doe_, my deputies,
greeting. By virtue of a precept in writing, under the seal of the
sheriff of the said county, to me directed, I command you and every of
you jointly and severally, that you, some or one of you take _A. B._ if
he shall be found in my bailiwick, and him safely keep, so that I may
have his body before the lord the King, on Wednesday next after fifteen
days from the day of Easter, to answer _C. D._ gentleman of a plea of
trespass; and also to a bill of the said _C._ against the aforesaid _A._
for one hundred pounds of debt, according, &c. to be exhibited. Dated the
---- day of ---- 17--.
_R._
By the same bailiff.
Before you arrest, &c. (_as above_.)
Oath for 59l. and upwards.
Precept signed ---- inst.
No. IV.
CHIEF BAILIFFS RETURN.
To _F. G._ and _H. I._ esquires, sheriff of the county of Middlesex.
_J. H._ esquire, bailiff of the liberty [of the lord the King] of _E._ in
the said county, doth hereby certify and return, that by virtue of a
warrant in writing under the seal of the said sheriff to him the said
bailiff directed, he hath taken the body of _A. B._ which he is ready to
have before the lord the King, (_&c._ _as in the warrant_) as by the said
warrant he is commanded. (_Or thus_: that _A. B._ whom, _&c._ _See the
indenture post._)
By the same bailiff.
No. V.
Form of an indenture of return between the bailiff of a liberty and the
sheriff, according to the statute of York[56].
This indenture made, &c. between _J. K._ esquire, bailiff of the liberty
of the lord the King of _E._ in the county of _M._ of the one part, and
_F. G._ and _H. I._ esquires, sheriff of the said county, of the other
part, witnesseth, that the said bailiff hath certified and returned unto
the said sheriff, that by virtue of a certain warrant in writing under
the seal of the said sheriff to him the said bailiff directed, he the
said bailiff hath taken the body of _G. H._ gentleman, which he will have
ready before the lord the King at Westminster, at the day therein
contained. _Or thus_: which he hath delivered to the said sheriff. _Or
thus_: that _G. H._ gentleman, whom the said bailiff was lately, by a
certain warrant in writing, under the seal of the said sheriff, to him
the said bailiff directed, commanded by the said sheriff to arrest, is
not found in his bailiwick. (_And so of other returns_). In witness, _&c._
No. VI.
SHERIFFS RETURN.
By virtue of this writ to me directed, I have commanded _J. K._ esquire,
bailiff of the liberty [of the lord the King] of _E._ in the county of
Middlesex, who hath the full return of all writs, and the execution
thereof within the liberty aforesaid, and to whom the execution of this
writ doth wholly belong to be done, for that no execution in any other
place in my bailiwick out of the said liberty could be made, which said
bailiff answereth that he hath taken the body of the within named _A. B._
which he hath ready at the time and place within mentioned. _Or thus_:
that the within named _A. B._ is not found in his bailiwick. _Or thus_:
who hath given me no answer.
No. VII.
NON OMITTAS.
George the third, by the grace of God, of Great Britain, France and
Ireland, King, defender of the faith, and so forth. To the sheriff of
Middlesex, greeting: We command you that you omit not by reason of any
liberty of your county, but that you take _A. B._ if he may be found in
your bailiwick, and him safely keep, so that you may have his body before
us on ---- next after five weeks of Easter, to answer _C. D._ gentleman,
of a plea of trespass and also to a bill of the said _C._ against the
aforesaid _A._ for one hundred pounds of debt, according to the custom of
our court, before us to be exhibited, and have you then there this writ.
Witness, Lloyd Lord Kenyon at Westminster, the ---- day of ---- in the
29th year of our reign.
[56] The 'compiler' not finding an example of this indenture in any
book, has been tempted to frame something resembling what he conceives
it has been. It is, however, more for curiosity than use, as the bailiff
seems completely deprived of the benefit of the statute by the modern
stamp acts. The effect may nevertheless be attained by a simple
memorandum as follows: BE IT REMEMBERED, that _J. K._ esquire, bailiff
_&c._ hath certifyed and returned unto _F. G._ and _H. I._ sheriff,
_&c._ that by virtue, _&c._ Witness the hands of the said bailiff and
sheriff, the ---- day of ---- 1790.
FINIS.
Printed by A. Strahan, Law Printer to His Majesty,
Printers-Street, London.
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