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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..66b5c57 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #54235 (https://www.gutenberg.org/ebooks/54235) diff --git a/old/54235-8.txt b/old/54235-8.txt deleted file mode 100644 index 11832c9..0000000 --- a/old/54235-8.txt +++ /dev/null @@ -1,3347 +0,0 @@ -Project Gutenberg's The Office of Bailiff of a Liberty, by Joseph Ritson - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Office of Bailiff of a Liberty - -Author: Joseph Ritson - -Release Date: February 26, 2017 [EBook #54235] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE OFFICE OF BAILIFF OF A LIBERTY *** - - - - -Produced by MWS, Chris Pinfield and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/American Libraries.) - - - - - -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 quņd sit ita justus, quņd ob vindictam vel cupiditatem non -quęrat 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 Ęlfred[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 - Ęlfred. 110. - - [5] The _prępositus villę_, 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. _prępositus_. 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 _pręcipe_ 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, _quęre_. - _5 H. 7. 27._ _Br. Retorne de briefe._ 89. - - In _Pręcipe 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 - Coronę_; 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 Coronę_. 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 Custodię_ [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 _pręcipe - 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._ _quęre_, 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. _quęre_. _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 _Pręcipe_ 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 linguę_) 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 hęc 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 hęc 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' pręd'_, 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 quęre 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. - - - - - - -End of the Project Gutenberg EBook of The Office of Bailiff of a Liberty, by -Joseph Ritson - -*** END OF THIS PROJECT GUTENBERG EBOOK THE OFFICE OF BAILIFF OF A LIBERTY *** - -***** This file should be named 54235-8.txt or 54235-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/4/2/3/54235/ - -Produced by MWS, Chris Pinfield and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/American Libraries.) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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- margin-left: auto; - margin-bottom: 1em; - } - - /* misc styles */ - .nodent { text-indent: 0; } - .negdent { margin-left: 1em; text-indent: -1em; } - .negdent3 { margin-left: 3em; text-indent: -1em; } - .center { text-indent: 0; text-align: center; } - .smcap { font-variant: small-caps; font-style: normal; } - .uppercase { text-transform: uppercase; } - .large { font-size: large; } - .x-large { font-size: x-large; } - .small { font-size: small; } - .x-small { font-size: x-small; } - .gap-above { margin-top: 2em; } - -@media handheld { - p.drop-cap:first-letter { - float: none; - margin: 0; - font-size: 100%; - } - .sidenote { - float: left; - clear: none; - } - } - - </style> - </head> -<body> - - -<pre> - -Project Gutenberg's The Office of Bailiff of a Liberty, by Joseph Ritson - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Office of Bailiff of a Liberty - -Author: Joseph Ritson - -Release Date: February 26, 2017 [EBook #54235] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE OFFICE OF BAILIFF OF A LIBERTY *** - - - - -Produced by MWS, Chris Pinfield and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/American Libraries.) - - - - - - -</pre> - - -<div id="tnote"> - -<p>Transcriber's Note.</p> - -<p>Apparent typographical errors have been corrected. The use of hyphens has -been rationalised.</p> - -<p>There are several words in the Introduction in Anglo-Saxon script. -These are underlined. The individual characters have been replaced by -their modern equivalents: "wynn" by "w" and so on.</p> - -</div> - -<div class="front"> - -<h1><span class="x-small">THE</span><br /> - OFFICE<br /> - <span class="x-small">OF</span><br /> - <span class="x-large">BAILIFF</span><br /> - <span class="x-small">OF A</span><br /> - LIBERTY.</h1> - -<p><span class="smcap">By</span> JOSEPH RITSON, Esq.<br /> -<span class="small">BARRISTER AT LAW,</span><br /> -<span class="x-small">LATE HIGH BAILIFF OF THE SAVOY.</span></p> - -<p class="quote">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 quņd sit ita justus, quņd ob vindictam vel cupiditatem non quęrat -versus tenentes domini, vel aliquos sibi subditos, occasiones injustas, per -quas destrui debent, seu graviter amerciari. <cite>Fleta. l. 2. c. 73.</cite></p> - -<p>LONDON:<br /> -<span class="small">PRINTED BY A. STRAHAN,</span><br /> -<span class="x-small">LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY;</span><br /> -<span class="small">FOR J. BUTTERWORTH, LAW-BOOKSELLER,</span><br /> -<span class="small">FLEET-STREET.</span><br /> -1811.</p> - -</div> - -<hr /> - -<h2>ADVERTISEMENT.</h2> - -<p class="drop-cap"><span class="uppercase">The</span> -little work now offered to the public -was originally compiled by Mr. Ritson about -the same period as similar treatises, on <i>The Office -of Constable</i>, and <i>The Jurisdiction of the Court-Leet</i>, -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.</p> - -<p>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.</p> - -<div class="foot"> -<div class="right0">JOSEPH FRANK.</div> -<div class="left1"><small>Stockton-upon-Tees,</small></div> -<div class="left2"><small>1st February 1811.</small></div> -</div> - -<h2>PREFACE.</h2> - -<p class="drop-cap"><span class="uppercase">The</span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<h2>CONTENTS.</h2> - -<table id="toc" summary="ToC"> - -<tr> - <td colspan="3"></td> - <td class="pag"><small>Page</small></td> -</tr> - -<tr> - <td colspan="3"><span class="smcap">Introduction</span></td> - <td class="pag"><a href="#Page_xi">xi</a></td> -</tr> - -<tr> - <td colspan="3"></td> - <td class="pag"></td> -</tr> - -<tr> - <td class="bookchap">BOOK</td> - <td class="number">I.</td> - <td class="title">Of a franchise or liberty</td> - <td class="pag"><a href="#Page_1">1</a></td> -</tr> - -<tr> - <td class="bookchap">Chap.</td> - <td class="number">I.</td> - <td class="title">Of franchises in general</td> - <td class="pag"><a href="#Page_1">1</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">II.</td> - <td class="title">Of the liberty of <i>Retorna Brevium</i>, or return of writs</td> - <td class="pag"><a href="#Page_3">3</a></td> -</tr> - -<tr> - <td colspan="3"></td> - <td class="pag"></td> -</tr> - -<tr> - <td class="bookchap">BOOK</td> - <td class="number">II.</td> - <td class="title">Of the bailiff of a franchise or liberty</td> - <td class="pag"><a href="#Page_16">16</a></td> -</tr> - -<tr> - <td class="bookchap">Chap.</td> - <td class="number">I.</td> - <td class="title">Of his quality</td> - <td class="pag"><a href="#Page_16">16</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">II.</td> - <td class="title">Of his creation or appointment, and interest in his office</td> - <td class="pag"><a href="#Page_17">17</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">III.</td> - <td class="title">Of his qualification</td> - <td class="pag"><a href="#Page_18">18</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">IV.</td> - <td class="title">Of his power and capacity; i. e. what he may or may not do or be</td> - <td class="pag"><a href="#Page_20">20</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">V.</td> - <td class="title">Of his duty, i. e. what he must or shall do or not do</td> - <td class="pag"><a href="#Page_26">26</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">VI.</td> - <td class="title">Of his indemnity and protection</td> - <td class="pag"><a href="#Page_54">54</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">VII.</td> - <td class="title">Of his responsibility and punishment</td> - <td class="pag"><a href="#Page_59">59</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">VIII.</td> - <td class="title">Of his fees</td> - <td class="pag"><a href="#Page_68">68</a></td> -</tr> - -<tr> - <td class="ditto">—</td> - <td class="number">IX.</td> - <td class="title">Pleadings</td> - <td class="pag"><a href="#Page_71">71</a></td> -</tr> - -<tr> - <td colspan="3"></td> - <td class="pag"></td> -</tr> - -<tr> - <td colspan="3"><span class="smcap">Appendix</span></td> - <td class="pag"><a href="#Page_76">76</a></td> -</tr> - -</table> - -<div class="pagenum"><a name="Page_xi" id="Page_xi">{xi}</a></div> - -<h2>INTRODUCTION.</h2> - -<p class="drop-cap"><span class="uppercase">Bailiff</span> -(<i>Baillif</i>, or <i>Baillie</i> French; <i>Ballivus</i>, -Latin; from <i>balliare</i> to deliver, intrust, or commit,) -is the name given by the Normans to those -ministers of the law whom the Saxons called <span class="anglosaxon">gerefa</span>, -<i>greve</i> or <i>reve</i><span -class="fnanchor"><a name="Ref_1" id="Ref_1" href="#Foot_1">[1]</a></span>: -an appellation which, however corruptly, -we still retain in the word <i>sheriff</i>, (<span class="anglosaxon">scyre-gerefa</span>, -or <i>shire-reve</i>,) 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 <i>vicecomes</i> or <i>viscount</i> (<i>qui fungitur -vice comitis</i>,) 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 <i>bailiwick</i><span -class="fnanchor"><a name="Ref_2" id="Ref_2" href="#Foot_2">[2]</a></span>, -he is often mentioned in <i>Magna Charta</i> and ancient statutes along -with <i>alii ballivi</i>, and is himself frequently included -under that title<span -class="fnanchor"><a name="Ref_3" id="Ref_3" href="#Foot_3">[3]</a></span>. -Between this officer and the bailiff -<span class="pagenum"><a name="Page_xii" id="Page_xii">{xii}</a></span> -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 Ęlfred<span -class="fnanchor"><a name="Ref_4" id="Ref_4" href="#Foot_4">[4]</a></span>; -each county, hundred or -tithing is agreed to have been subjected to an officer -known by the common name of the <span class="anglosaxon">gerefa</span>; he who -presided over the county at large being usually, by -way of distinction, called the <span class="anglosaxon">heh</span> or -<span class="anglosaxon">scyre-gerefa</span> and -sometimes the <span class="anglosaxon">scyr</span>-man, as the others were stiled -the <span class="anglosaxon">hundred</span> and <span class="anglosaxon">tything-gerefa</span> -or the hundreder, and tithingman<span -class="fnanchor"><a name="Ref_5" id="Ref_5" href="#Foot_5">[5]</a></span>. -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 <span class="anglosaxon">Ealderman</span> or <span class="anglosaxon">Eorl</span><span -class="fnanchor"><a name="Ref_6" id="Ref_6" href="#Foot_6">[6]</a></span>. -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 <span class="anglosaxon">gerefa</span> 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 -<span class="pagenum"><a name="Page_xiii" id="Page_xiii">{xiii}</a></span> -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<span -class="fnanchor"><a name="Ref_7" id="Ref_7" href="#Foot_7">[7]</a></span>.</p> - -<p>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<span -class="fnanchor"><a name="Ref_8" id="Ref_8" href="#Foot_8">[8]</a></span>: -and when the right of -election in the former case was wrested from the -people by the Norman tyrants<span -class="fnanchor"><a name="Ref_9" id="Ref_9" href="#Foot_9">[9]</a></span>, -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 -<span class="pagenum"><a name="Page_xiv" id="Page_xiv">{xiv}</a></span> -anciently considered as the Kings courts, yet offences -were in one alledged to be <i>contra pacem ballivi</i>, and in -the other <i>contra pacem vicecomitis</i><span -class="fnanchor"><a name="Ref_10" id="Ref_10" href="#Foot_10">[10]</a></span>. -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<span -class="fnanchor"><a name="Ref_11" id="Ref_11" href="#Foot_11">[11]</a></span>. -Each of them had likewise his -<span class="pagenum"><a name="Page_xv" id="Page_xv">{xv}</a></span> -proper <i>aid</i> or <i>scot</i>, 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. <i>H. 2</i>.<span -class="fnanchor"><a name="Ref_12" id="Ref_12" href="#Foot_12">[12]</a></span> -How his commands were signified before this invention -does not clearly appear<span -class="fnanchor"><a name="Ref_13" id="Ref_13" href="#Foot_13">[13]</a></span>; -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<span -class="fnanchor"><a name="Ref_14" id="Ref_14" href="#Foot_14">[14]</a></span> -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.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_1" id="Foot_1" href="#Ref_1">[1]</a> -From <span class="anglosaxon">gerefen</span> <i>tollere</i>, <i>rapere</i>, <i>exigere</i>. <i>Exactor Regis (sc. mulctarum -<span class="amp">&</span> jurium suorum). Ideo scil. quod mulctas regias et delinquentium facultates, -in fiscum raperent, exigerent, deportarent.</i> Spelman, <i>voce</i> <small>REVE</small>.</p> - -<p class="nodent"><a name="Foot_2" id="Foot_2" href="#Ref_2">[2]</a> -See <cite>Co. Lit. 168, b.</cite> 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; <i>in comitatu meo</i> or <i>tuo</i> for instance has (frequently -at least) a very different meaning.</p> - -<p class="nodent"><a name="Foot_3" id="Foot_3" href="#Ref_3">[3]</a> -<cite>2 Inst. 19.</cite> Blount, <i>voce</i> Bailiff. And see <cite>Fortescue on Monarchy</cite>, -124. <i>Sed quia</i> vicecomes ... <i>fuit</i> ... magnus domini Regis ballivus. -<cite>M. Paris.</cite> 801. The governors of the city of London were originally -called portreves, then bailiffs, then sheriffs, and at last mayors. <cite>Stows -Survey</cite>, by Strype. <i>B. v. c. 6.</i></p> - -<p class="nodent"><a name="Foot_4" id="Foot_4" href="#Ref_4">[4]</a> -<cite>Ingulphus (apud scriptores post Bedam).</cite> 870. <cite>Gul. Malmesburiensis de -Gestis Regum. Ibi.</cite> 44. Camdens <cite>Britannia. clxvii.</cite> <cite>Seldeni Analecta, -Opera, ii.</cite> 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 Ęlfred. 110.</p> - -<p class="nodent"><a name="Foot_5" id="Foot_5" href="#Ref_5">[5]</a> -The <i>prępositus villę</i>, or bailiff of a manor, was also called the -<span class="anglosaxon">tungerefa</span> or Tungreve. <i>Vide</i> Spelman, <i>voce</i> Grafio.</p> - -<p class="nodent"><a name="Foot_6" id="Foot_6" href="#Ref_6">[6]</a> -Hickes. Dis. Epis. 49.</p> - -<p class="nodent"><a name="Foot_7" id="Foot_7" href="#Ref_7">[7]</a> -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.</p> - -<p class="nodent"><a name="Foot_8" id="Foot_8" href="#Ref_8">[8]</a> -Kennet, Par. Ant. Glos. v. <i>prępositus</i>. Another title common to -sheriff, bailiff, and reve.</p> - -<p class="nodent"><a name="Foot_9" id="Foot_9" href="#Ref_9">[9]</a> -This privilege was restored to the people by the <i>Articuli super Chartas</i>; -<cite>28 E. 1. c. 8.</cite> but resumed in the following reign, and has ever since -continued in the crown. <cite>9 E 2. st. 2. Jenk.</cite> 229. They enjoy the right -of electing the coroner still; chiefly, it is supposed, because it has not been -thought worth taking from them.</p> - -<p class="nodent"><a name="Foot_10" id="Foot_10" href="#Ref_10">[10]</a> -<cite>Fleta. l. 2. c. 53.</cite> § 1. The <i>steward</i> 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 <i>Senescallus</i>, -the <span class="anglosaxon">Styweard</span> or <i>major-domo</i> 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 <i>Mirror</i> -(written in the time of <i>E. 2.</i>) constantly speaks of the bailiff as judge of -the court leet; see also Ken. <cite>Par. Ant.</cite> p. 319. And thus Finch, speaking -of the County Court and Court Baron, says "the suitors are the judges -and the <i>bailiff</i> and sheriff are but ministers." <cite>Law.</cite> 248. And hence, -perhaps, it has been held that both offices might be enjoyed by one and -the same person. <cite>Cro. Jac.</cite> 178. (cites <i>29 H. 8.</i>) And it should seem -from Bracton that writs were indifferently directed to either the steward, -or the bailiff, <i>ballivo vel senescallo</i>. <cite>l. 5. c. 32.</cite></p> - -<p>About the time that this separation took place, the lowest branches of -the bailiffs office were transfered to an inferior minister, named a <i>reve</i>, of -whom we read at large in <cite>Fleta. l. 2. c. 76.</cite> 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 <i>steward</i>, <i>bailiff</i>, -and <i>reve</i>.</p> - -<p class="nodent"><a name="Foot_11" id="Foot_11" href="#Ref_11">[11]</a> -Lambards <cite>Perambulation of Kent.</cite> p. 484.</p> - -<p class="nodent"><a name="Foot_12" id="Foot_12" href="#Ref_12">[12]</a> -<i>V.</i> Prynne, Animad. on 4 Inst. p. 150. <cite>Hickes. Dis. Ep.</cite> 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. <i>Hickes. u. s.</i> -p. 8.</p> - -<p class="nodent"><a name="Foot_13" id="Foot_13" href="#Ref_13">[13]</a> -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.</p> - -<p class="nodent"><a name="Foot_14" id="Foot_14" href="#Ref_14">[14]</a> -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.</p> - -</div> - -<div class="chapter"></div> - -<div class="pagenum"><a name="Page_1" id="Page_1">{1}</a></div> - -<div class="snmargin"> - -<div class="front"> - -<p><span class="x-small">THE</span><br /> - <span class="large">OFFICE</span><br /> - <span class="x-small">OF</span><br /> - <span class="large">BAILIFF OF A LIBERTY.</span></p> - -</div> - -<h2>BOOK I.<br /> -<small>Of a <span class="smcap">Franchise</span> or <span class="smcap">Liberty</span><span -class="fnanchor"><a name="Ref_15" id="Ref_15" href="#Foot_15">[15]</a></span>.</small></h2> - -<h3>CHAPTER I.<br /> -<small>OF FRANCHISES IN GENERAL.</small></h3> - -<div class="sidenote">Royal privilege.<br />Forfeiture.</div> -<p class="drop-cap"><span class="uppercase">A franchise</span> -is a royal privilege in the hands of -a subject; and is forfeited by misusing it. -<cite>Finch</cite>, 164.</p> - -<div class="sidenote">Record.</div> -<p>If a franchise be of record in any court of the King -it is sufficient. <cite>27 H. 6. 9.</cite></p> - -<div class="sidenote"><i>Quo warranto.</i></div> -<p>Allowance of franchises in <i>Quo warranto</i> or in Eyre -shall conclude the King, for this is the suit of the King -<span class="pagenum"><a name="Page_2" id="Page_2">{2}</a></span> -to try franchise; <i>contra</i> of allowance in the Common -Bench or other court. <cite>10 H. 7. 13.</cite> <cite>Br. Fraunches -& Liberties</cite>, 40.</p> - -<div class="sidenote">General statute.</div> -<p>Franchise bound by general statute, <i>tam</i> within -<i>quam</i> without the franchise. <cite>19 H. 6. 1.</cite></p> - -<p>Franchise or other special liberty or privilege shall -not be defeated by general statute. <cite>19 H. 6. 64.</cite><span -class="fnanchor"><a name="Ref_16" id="Ref_16" href="#Foot_16">[16]</a></span></p> - -<div class="sidenote">Prisons.</div> -<p>Albeit divers lords of liberties have custody of the -prisons and some in fee, yet the prison itself is the -Kings <i>pro bono publico</i>; and therefore it is to be repaired -at the common charge; for no subject can -have the prison itself. <cite>2 Inst.</cite> 589.</p> - -<p>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 <i>Habeas Corpus</i> to <i>B. R.</i> with a claim of their franchise. -<cite>1 Salk.</cite> 343.</p> - -<div class="sidenote"><i>Magna Charta.</i></div> -<p>By <cite>Mag. Char.</cite> c. 38., are saved to all archbishops, -&c. earls, barons, and all others, all liberties and free -customs which they had enjoyed before.</p> - -<p>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 -<span class="pagenum"><a name="Page_3" id="Page_3">{3}</a></span> -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 "<i>Le Roy le voet</i>." <cite>Rot. Parl.</cite> -<i>passim</i>. 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. <cite>Abridgement of the -Records</cite><span -class="fnanchor"><a name="Ref_17" id="Ref_17" href="#Foot_17">[17]</a></span>. -<i>Table</i>, <i>voce</i> Liberties.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_15" id="Foot_15" href="#Ref_15">[15]</a> -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 <i>Retorna Brevium</i>: 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.</p> - -<p class="nodent"><a name="Foot_16" id="Foot_16" href="#Ref_16">[16]</a> -Vide <i>Co. Lit.</i> 115. and the case of the King against Pugh. <i>Douglas</i> -179.</p> - -<p class="nodent"><a name="Foot_17" id="Foot_17" href="#Ref_17">[17]</a> -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.</p> - -</div> - -<div class="chapter"></div> - -<h3>CHAPTER II.<br /> -<small>OF THE LIBERTY OF <i>Retorna Brevium</i>, OR RETURN OF WRITS.</small></h3> - -<div class="sidenote">Roll of Liberties.<br /><i>Non omittas.</i></div> -<p><span class="uppercase">By</span> <cite>W. 2. c. 39.</cite> 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<span -class="fnanchor"><a name="Ref_18" id="Ref_18" href="#Foot_18">[18]</a></span>. -And if peradventure he answer that he hath -<span class="pagenum"><a name="Page_4" id="Page_4">{4}</a></span> -returned the writ to the bailiffs of some liberty that -indeed hath return who hath done nothing therein<span -class="fnanchor"><a name="Ref_19" id="Ref_19" href="#Foot_19">[19]</a></span>, -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 -<span class="pagenum"><a name="Page_5" id="Page_5">{5}</a></span> -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.</p> - -<p>That the statute, in this respect, was little more -than a declaration of the common law, appears from -<cite>Bracton. l. 5. c. 32.</cite></p> - -<div class="sidenote">Indenture.</div> -<p>By <cite>12 E. 2. c. 5.</cite> 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.</p> - -<div class="sidenote">Prescription.</div> -<p>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. <cite>Hardres.</cite> 423.</p> - -<div class="pagenum"><a name="Page_6" id="Page_6">{6}</a></div> - -<div class="sidenote">Escheat,</div> -<p>Where a man hath <i>Retorna Brevium</i>, which liberty -comes to the hands of the King by escheat <i>vel aliter</i>, -this unity in the King shall not extinguish the liberty. -<i>Keilwey.</i> 72.<span -class="fnanchor"><a name="Ref_20" id="Ref_20" href="#Foot_20">[20]</a></span></p> - -<div class="sidenote">A dangerous liberty!</div> -<p>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. <cite>2 Vent.</cite> 406.</p> - -<div class="sidenote">Sheriff.</div> -<p>This liberty though it carries an exemption, yet it -doth not exclude, but that the sheriff may execute -<span class="pagenum"><a name="Page_7" id="Page_7">{7}</a></span> -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 <i>non omittas</i>, <span class="amp">&c.</span> in case -of execution of a writ of waste, whereto he is -particularly empowered by the statute, and sometimes -where the thing is divided<span -class="fnanchor"><a name="Ref_21" id="Ref_21" href="#Foot_21">[21]</a></span>. -(By Hale C. B.) <cite>2 Vent.</cite> 406.</p> - -<div class="pagenum"><a name="Page_8" id="Page_8">{8}</a></div> - -<div class="sidenote">Warrant.</div> -<p>If an action be brought in a county, and the place -where, <span class="amp">&c.</span> 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. <cite>35 H. 6. 42.</cite></p> - -<p>To the sheriff the writ must be directed, though it -be for a thing done in a franchise, and he shall send to -a [<i>l.</i> the] bailiff of the franchise who shall serve it as a -servant to the sheriff<span -class="fnanchor"><a name="Ref_22" id="Ref_22" href="#Foot_22">[22]</a></span>, -and the sheriff return it <cite>Finch.</cite> 238.</p> - -<div class="pagenum"><a name="Page_9" id="Page_9">{9}</a></div> - -<div class="sidenote">Service by sheriff.</div> -<p>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. <i>Id.</i> <i>Ib.</i></p> - -<p>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. <cite>11 H. 4. Br. Execution.</cite> 32.</p> - -<div class="sidenote">The King party.</div> -<p>If the sheriff without <i>Non Omittas</i> serve process -within liberty or franchise that hath return of writs it -is good. <cite>11 H. 4. 9.</cite> <cite>20 H. 7. 7.</cite> But the lord of the -franchise shall have action upon the case against him. -<cite>Fitz. Nat. bre.</cite> 95.<span -class="fnanchor"><a name="Ref_23" id="Ref_23" href="#Foot_23">[23]</a></span> -But if the King be party the -lord hath no remedy, for the writ for the King is always -<i>Non Omittas</i> in law. <cite>41 lib. Ass.</cite> 17. <cite>Cromp. -J. P.</cite> 164.<span -class="fnanchor"><a name="Ref_24" id="Ref_24" href="#Foot_24">[24]</a></span></p> - -<p>Where the King is party the <i>venire facias</i> shall make -mention of <i>non omittas</i>; for where the King is party -<span class="pagenum"><a name="Page_10" id="Page_10">{10}</a></span> -the sheriff shall not write to the bailiff of the franchise, -but serve the process himself. <cite>41 Ass.</cite> p. 17. <cite>Br. Fraunches -& Liberties</cite>, 18.</p> - -<p>The King hath no other minister than the sheriff, and -where the King is a party no franchise shall be allowed. -<cite>Fitz. Chal.</cite> 129.</p> - -<p>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 <i>licet fuerimus pars</i> be in the -charter, in which case it seems otherwise. <cite>38 Ass.</cite> -p. 19. <cite>Br. Fraunches & Liberties</cite>, 31.</p> - -<p>If the King grant <i>returna omnium brevium</i>, yet he -shall not have return of the summons of the exchequer. -<cite>22 Ass.</cite> p. 49. <cite>Br. Patentes</cite>, 32.</p> - -<div class="sidenote">Arrest by sheriff.</div> -<p><i>Per Glynn</i> Ch. J. Mich. 1658; if one be arrested by -the sheriff of the county within a liberty, without a -<i>non omittas</i>, 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<span -class="fnanchor"><a name="Ref_25" id="Ref_25" href="#Foot_25">[25]</a></span>; -but upon a <i>quo minus</i>, a sheriff -may enter any liberty, and execute it <i>impune</i>. <cite>R. S. L.</cite> -116. <i>cites</i> <cite>Pract. Reg.</cite> 72. <cite>Viner, Franchises</cite>, (<i>B.</i>) 6.</p> - -<div class="pagenum"><a name="Page_11" id="Page_11">{11}</a></div> - -<div class="sidenote"><i>Non omittas</i>,<br /> -<i>Capias utlagatum</i>,<br /> -<i>Quo minus</i>.</div> -<p>The sheriff, upon a <i>non omittas</i>, <i>capias utlagatum</i>, or -<i>quo minus</i>, may enter and make an arrest in any franchise. -<cite>L. P. R.</cite> 635. <cite>Viner, Franchises</cite>, (<i>B.</i>) 6.</p> - -<div class="sidenote"><i>Non omittas.</i></div> -<p>In the county of Suffolk are two liberties, one -of St. Edmund Bury, and the other of St. Ethelred -of Ely: suppose a <i>capias</i> comes at the suit of <i>A.</i> to -the sheriff of Suffolk, to arrest the body of <i>B.</i> 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 <i>non omittas</i>, and by -force thereof he may arrest the defendant within the -liberty of Bury, although no default was in him [<i>sci.</i> -in the bailiff of that liberty.] <cite>5 Rep.</cite> 92.</p> - -<p>But this is to be understood of the process of the -Kings Bench; for Common Pleas recites the <i>capias</i>, -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 <i>Latitat</i>, -the authority is general, <i>non omittas propter aliquam -libertatem</i>, 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 -<i>latitat</i>, (viz.) <i>latitat</i> and <i>discurrit</i>, so that the defendant -is supposed to skulk and run from one place to -another; and therefore the <i>non omittas</i> was made general, -that he might not run from one liberty to -another. <cite>Gilb. Hist. C. P.</cite> 24.<span -class="fnanchor"><a name="Ref_26" id="Ref_26" href="#Foot_26">[26]</a></span></p> - -<div class="pagenum"><a name="Page_12" id="Page_12">{12}</a></div> - -<div class="sidenote">Justice of peace.</div> -<p>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 <i>non omittas</i> is virtually -included. <cite>2 Hale P. C.</cite> 116.<span -class="fnanchor"><a name="Ref_27" id="Ref_27" href="#Foot_27">[27]</a></span></p> - -<div class="sidenote">Process.</div> -<p>By <cite>5 G. 2. c. 2.</cite> § 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.]<span -class="fnanchor"><a name="Ref_28" id="Ref_28" href="#Foot_28">[28]</a></span></p> - -<div class="sidenote">Sheriffs deputy.</div> -<p>By <cite>13 G. 2. c. 18.</cite> § 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 -<span class="pagenum"><a name="Page_13" id="Page_13">{13}</a></span> -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, -<span class="pagenum"><a name="Page_14" id="Page_14">{14}</a></span> -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.</p> - -<div class="sidenote"><i>Ca.</i> and <i>non om.</i></div> -<p><i>Note.</i> It is now usual to take out the <i>capias</i> and -<i>non omittas</i> together, without staying for the sheriffs -return<span -class="fnanchor"><a name="Ref_29" id="Ref_29" href="#Foot_29">[29]</a></span>. -<cite>Gilb. Hist. C. P.</cite> 26.</p> - -<p><i>Note</i>, 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 <i>mandavi ballivo</i> thereon, and thereupon you make -out a writ called a <i>non omittas</i>, 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. <cite>1 Instructor -Clericalis.</cite> 44.</p> - -<p>And <i>Note</i>, The usual practice in such case is if the -defendant dwells in the country, to send down a <i>non -omittas</i> with the <i>latitat</i> for dispatch. <i>Ib.</i></p> - -<div class="chapter"></div> - -<div class="pagenum"><a name="Page_15" id="Page_15">{15}</a></div> - -<h4><span class="smcap">Scac</span>. E. 1725.<br /> -<small><i>L. Digby</i> v. <i>Meech</i> et al.</small></h4> - -<p>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 <i>Retorna Brevium</i>, &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, -<i>and on his death vested in plaintiff</i>.</p> - -<p>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.</p> - -<p>And <i>per tot' cur'</i> 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. <cite>Hanbury</cite>, 195.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_18" id="Foot_18" href="#Ref_18">[18]</a> -In the Kings Bench the sheriff returned <i>Mand' ballivo' Libertatis de D.</i> -and it was said that he hath not such a franchise, and if it be inrolled in -the chancery that A. hath <i>retorna brevium</i>, yet if it be not inrolled in the -exchequer, as the statute of <cite>W. 2. c. 39.</cite> 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 <i>certiorari</i> out of chancery to the treasurer, that -he bring the roll of liberties in his hand, and shew it to the justices. <cite>11 E. 4. 4.</cite> -<cite>Br. Retorne de briefe.</cite> 98.</p> - -<p>This Roll of Liberties is supposed to be lost; at least the clerks of the -<i>Treasurers Remembrancers office</i>, on inquiry there, could give no account -of it; any more than the bag-bearer of the <i>Kings</i> could of the "little booke," -mentioned by Powell to be in the <i>Kings Remembrancers office</i>, "intituled, -<cite>Liber de Ball. pro Angl.</cite> of all the bailiwicks throughout England," which -he calls "an ancient booke, made <i>Anno</i> 1180."</p> - -<p><i>Per Curiam</i>, where the bailiff makes insufficient return, the sheriff -may return <i>quod nullum dedit responsum</i>, for an insufficient return is as no -return; and in <i>pręcipe</i> 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 <i>Vavisour</i> if the bailiff make dubious return and -the sheriff return it over he shall not be amerced, <i>quęre</i>. <cite>5 H. 7. 27.</cite> -<cite>Br. Retorne de briefe.</cite> 89.</p> - -<p>In <i>Pręcipe quod reddat</i>, to the grand capias the sheriff returned <i>quod -mandavi ballivo, libertatis</i>, who returns that he hath taken the land into -the hands of the King, and says nothing that he hath summoned the tenant. -<i>Martin</i>, another summons with <i>non omittas</i> 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. -<cite>Babb</cite>, a <i>non omittas</i> 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. <cite>T. 4 H. 6. [25.]</cite> <cite>Fitz. Amercement.</cite> 1.</p> - -<p>In trespass the sheriff returned the <i>Capias quod mandavit Ballivo Libertatis, -qui sic respondit quod cepit corpus</i>; 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 <i>Sicut alias</i> to the sheriff, and -<i>non omittas</i>. 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. -<cite>27 E. 3. 7.</cite></p> - -<p class="nodent"><a name="Foot_19" id="Foot_19" href="#Ref_19">[19]</a> -This <i>nihil</i> 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 <i>nihil</i> in law, and therefore a <i>non omittas</i>, &c. <cite>2 Inst.</cite> 452.</p> - -<p class="nodent"><a name="Foot_20" id="Foot_20" href="#Ref_20">[20]</a> -(1.) The King may have liberties by the suppression of abbeys -(<cite>32 H. 8.</cite>) 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 <i>esse</i>. <cite>Cro. -Jac.</cite> 242.</p> - -<p>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 <i>bona et catalla felonum fugitivorum utlagatorum</i> -&c. <i>bona et catalla waviata, extrahur; deodanda, wreccum maris</i>, &c. -within such possessions, there if they come again to the King, they are -merged in the crown, and he has them again in <i>Jure Coronę</i>; 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 <i>Jure -Coronę</i>. 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, -<i>et similia</i>, are appendants to manors, or in gross, and afterwards they -come back to the King, they remain as they were before, in <i>esse</i>, not -merged in the crown, for they were at first created and newly erected by -the King, and were not in <i>esse</i> before, and time and usage have made them -appendant. <cite>9 Rep. 25, h.</cite></p> - -<p class="nodent"><a name="Foot_21" id="Foot_21" href="#Ref_21">[21]</a> -Writ issued to the sheriff to enquire of waste, who returned <i>quod -mandavi ballivo libertatis qui mihi nullum dedit responsum</i>, and for this -he was amerced, and <i>sicut alias</i> awarded, because by the writ he is judge -and hath power to enter the franchise. <cite>T. 11 H. 4. (81.)</cite> <cite>Fitz. Retourne -del vicount.</cite> 53. But</p> - -<p>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. -<cite>Diversite des Courts.</cite> <cite>Court Baron.</cite></p> - -<p><i>Ejectione Custodię</i> [under <cite>W. 2. c. 35.</cite>], at the distress with proclamation -the sheriff returned <i>mandavi ballivo libertatis</i>, &c.; and by -<i>Thirning</i> and <i>Markham</i>, 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 <i>Rikhill</i> and <i>Tirwit e -contra</i> and that he did well, as in a <i>pręcipe quod reddat</i> of land, part in -guildable, and part in franchise, the sheriff shall make precept for parcel, -and shall serve the rest himself. <cite>2 H. 4. 1.</cite> <cite>Br. Ejectione Custodie.</cite> 1.</p> - -<p>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. <cite>2 Inst.</cite> 442.</p> - -<p>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. <cite>19 H. 6. 48</cite>, <i>67</i>. <cite>Br. Retorne de -briefe.</cite> 50.</p> - -<p>If assise be brought of tenements in two franchises the sheriff shall write -to each bailiff, and both shall serve. <cite>Abr. Ass.</cite> 92, <i>b.</i></p> - -<p>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. <cite>H. 18. E. 3.</cite> <i>quęre</i>, 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. -<i>quęre</i>. <cite>Abr. Ass.</cite> 93.</p> - -<p class="nodent"><a name="Foot_22" id="Foot_22" href="#Ref_22">[22]</a> -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).</p> - -<p>Upon an issue the sheriff returned to the <i>Venire Facias</i>, and to the distress, -as to 4 jurors he returned the writ served, and as to the remainder he -returned <i>mandavi ballivo de B. qui nullum</i>, &c. Fortescue prayed that -the sheriff should be amerced, for no writ may be returned by two ministers -<i>s.</i> part by the sheriff and part by the bailiff. Newton, <i>e contra</i>. -And afterwards, by advice of all the justices, the sheriff was amerced. -<cite>H 19 H. 6.</cite> <cite>Abr. Ass.</cite> 144. 145.</p> - -<p>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. <cite>21 H. 7. 14.</cite></p> - -<p class="nodent"><a name="Foot_23" id="Foot_23" href="#Ref_23">[23]</a> -<i>H.</i> 49 <i>E.</i> 3. <cite>B. R. Rot.</cite> 4. <i>Linc.</i> proces <i>per</i> attachement <i>per billam -versus vicecomitem</i> directed <i>al coroner</i> 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.)</p> - -<p class="nodent"><a name="Foot_24" id="Foot_24" href="#Ref_24">[24]</a> -In the <cite>Auctarium Additamentorum</cite> 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 <i>non omittas</i> 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 <i>non omittas</i> of itself.</p> - -<p class="nodent"><a name="Foot_25" id="Foot_25" href="#Ref_25">[25]</a> -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. <cite>1 Roll R.</cite> -119. <i>Town of Derby</i> v. <i>Foxley</i>.</p> - -<p class="nodent"><a name="Foot_26" id="Foot_26" href="#Ref_26">[26]</a> -Rule to shew cause why a writ of <i>non omittas capias ad respondendum</i>, -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. <cite>Barnes.</cite> 416.</p> - -<p class="nodent"><a name="Foot_27" id="Foot_27" href="#Ref_27">[27]</a> -Where the sheriff serves the process once of a thing local or permanent, -as in <i>Pręcipe</i> of land and such like, he cannot after return -<i>mandavi ballivo</i>; but <i>e contra</i> of a thing transitory which may remove. -<cite>5 H. 7. 27.</cite> <cite>Br. Ret. de briefe.</cite> 89.</p> - -<p>Thus in <i>Alias Summons</i> in Dower the sheriff can't return <i>mandavi -ballivo</i>, for he ought to have made this return upon the first writ, that -so the court might have awarded a <i>non omittas</i>; but if it relates to -matters transitory, then the sheriff may return <i>mandavi ballivo</i> -on the issuing of the second process, as on an <i>alias capias</i>, 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. <cite>Gilb. Hist. C. P.</cite> 26.</p> - -<p class="nodent"><a name="Foot_28" id="Foot_28" href="#Ref_28">[28]</a> -<i>Urlin</i> 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. <i>Per Cur'</i>: The act only preserves and -saves the jurisdiction of particular liberties. The person injured must -bring his action, the court cannot stay proceedings. <cite>Barns.</cite> 404.</p> - -<p class="nodent"><a name="Foot_29" id="Foot_29" href="#Ref_29">[29]</a> -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.</p> - -<p>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 <i>extra libertatem</i>. This method is unobjectionable, -it prevents delay and answers all the purposes of a <i>non omittas</i>.</p> - -</div> - -<div class="pagenum"><a name="Page_16" id="Page_16">{16}</a></div> - -<h2>BOOK II.<br /> -<small>Of the <span class="smcap">Bailiff</span> of a <span class="smcap">Franchise</span> -or <span class="smcap">Liberty</span>.</small></h2> - -<h3>CHAPTER I.<br /> -<small>OF HIS QUALITY.</small></h3> - -<p class="drop-cap"><span class="uppercase">The</span> -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. <cite>Spelman.</cite></p> - -<div class="sidenote">Minister to the King.</div> -<p>The bailiff of the franchise is not minister to the -sheriff but to the King. <cite>8 E. 4. 17.</cite></p> - -<div class="sidenote">Officer <i>per se</i>.</div> -<p>The bailiff of a franchise is an officer by himself, -and hath not to do with the sheriff. <cite>21 H. 7. 23.</cite></p> - -<p>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. -<cite>Keilwey</cite>, 89.</p> - -<div class="sidenote">Kings bailiff.</div> -<p>The Kings bailiff of his manor is immediate officer -to the King. <cite>33 H. 6. 29.</cite></p> - -<p>The bailiff of a liberty is such an officer as the -court will take notice of. <cite>Pasch. 24 Car. B. R. Q. -S. P. R.</cite> 122.</p> - -<div class="pagenum"><a name="Page_17" id="Page_17">{17}</a></div> - -<div class="chapter"></div> - -<h3>CHAPTER II.<br /> -<small>OF HIS CREATION OR APPOINTMENT, AND INTEREST IN HIS OFFICE</small></h3> - -<div class="sidenote">Parol, patent<br /> -or inheritance.</div> -<p><span class="uppercase">One</span> may be bailiff by a simple grant [i. e. by -parol] or patent or inheritance. <cite>H. 33 H. 6. [3.]</cite> -<cite>Fitz. Monstrauns de faitz, &c.</cite> 93.</p> - -<div class="sidenote">Bailiff of the King.</div> -<p>A man may be bailiff of the King without patent or -writing. <cite>7 H. 7. 10.</cite> <cite>Br. Bailie. 46 -<span class="amp">&</span> v. 2 <span class="amp">&</span> 9.</cite></p> - -<p>A man may be made bailiff to the King by naked -matter of fact as well as to a common person. <cite>Keilwey</cite>, -174, b.</p> - -<p>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. <cite>8 H. 7. 3.</cite></p> - -<div class="sidenote">Corporation.</div> -<p>Corporation having return of writs may make bailiff -(to execute them) without writing, by parol. -<cite>Moor</cite>, 552.</p> - -<div class="sidenote">Bailiff for life.</div> -<p>But a man may not make bailiff or steward for life, -or in fee, without deed. <cite>21 H. 7. 36.</cite></p> - -<div class="pagenum"><a name="Page_18" id="Page_18">{18}</a></div> - -<div class="sidenote">Discharge by<br /> -purchaser.</div> -<p>Bailiff of a manor<span -class="fnanchor"><a name="Ref_30" id="Ref_30" href="#Foot_30">[30]</a></span> -for life, with fee or other profits -for the execution of his office, cannot be discharged -by a purchaser of the manor (<i>contra</i> if no fee -or profit). <cite>Cro. Eliz.</cite> 859.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_30" id="Foot_30" href="#Ref_30">[30]</a> -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.</p> - -</div> - -<h3>CHAPTER III.<br /> -<small>OF HIS QUALIFICATION.</small></h3> - -<div class="sidenote">Sufficient land.</div> -<p><span class="uppercase">By</span> <cite>4 E. 3. c. 9.</cite>, 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 <cite>5 E. 3. c. 4.</cite></p> - -<div class="sidenote">Oaths.</div> -<p>By <cite>27 Eliz. c. 12.</cite> § 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 <i>Custos Rotulorum</i>, or two -justices of the peace whereof one to be of the <i>quorum</i> -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 -<span class="pagenum"><a name="Page_19" id="Page_19">{19}</a></span> -in the first year of the reign of our Sovereign Lady -the Queen's Majesty<span -class="fnanchor"><a name="Ref_31" id="Ref_31" href="#Foot_31">[31]</a></span>, -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 <i>A. B.</i> 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 <i>tales</i>, 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.</p> - -<p>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 -<i>tales</i>, 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, -<span class="pagenum"><a name="Page_20" id="Page_20">{20}</a></span> -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 -<i>tales</i>, 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.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_31" id="Foot_31" href="#Ref_31">[31]</a> -By <cite>1 W. and M. stat. 1. c. 8.</cite>, the oath of supremacy is taken -away, and certain other oaths substituted in lieu thereof.</p> - -</div> - -<h3>CHAPTER IV.<br /> -<small><small>OF HIS POWER AND CAPACITY</small>; <i>i. e.</i> <small>WHAT HE MAY OR MAY NOT DO OR BE</small>.</small></h3> - -<div class="sidenote">Steward.</div> -<p><span class="uppercase">A bailiff</span> may be steward of the same manor; -for they may well stand both together. (<i>29 H. 8.</i> in -<cite>Bro.</cite>) <cite>Cro. Jac.</cite> 178.</p> - -<div class="sidenote">Deputy.</div> -<p>Bailiff of a liberty may well have a deputy. <cite>Cro. -Jac.</cite> 242.<span -class="fnanchor"><a name="Ref_32" id="Ref_32" href="#Foot_32">[32]</a></span></p> - -<div class="sidenote">Lease of land.</div> -<p>Bailiff of lord may lease the land, and good, at -will, for he is accountable, and debt lies for the lord. -<cite>2 E. 4. 4.</cite> <cite>Br. Bailie</cite>, 32. <i>Lease</i>, 34.</p> - -<div class="pagenum"><a name="Page_21" id="Page_21">{21}</a></div> - -<div class="sidenote">Rent.</div> -<p>But if he reserve no rent the lease is void. <cite>1 Roll. Rep.</cite> 258.</p> - -<div class="sidenote">Lease of piscary.</div> -<p>Bailiff of a manor may lease the piscary for years. -<cite>3 H. 4 12b.</cite> <cite>1 Roll Abr.</cite> 339.</p> - -<div class="sidenote">Lease of manor.</div> -<p>Bailiff cannot make lease of the manor, nor of -parcel of the manor, without especial command for -that purpose. <cite>M. 8 E. 4. 13.</cite> <cite>Fitz. Bayllyff.</cite> 3. <cite>Br. -Bailie</cite>, 41.</p> - -<div class="sidenote">Lease of land.</div> -<p>A bailiff cannot by any usage make lease of the land -of his master [for] an estate of freehold. <cite>19 Ass.</cite> 9. -<cite>1 Roll. Abr.</cite> 339.</p> - -<div class="sidenote">Payments.</div> -<p>Bailiff of a manor may pay rents issuing out of the -manor, and shall have allowance, but <i>e contra</i> where -he pays debts of the lord due by contract or obligation, -for this is out of his power. <cite>4 H. 7. 14.</cite> <cite>Br. -Bailie.</cite> 27.</p> - -<div class="sidenote">Cutting trees, &c.</div> -<p>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. <cite>12 H. 7. 25.</cite> <cite>Br. Baillie</cite>, 42. & -<i>vide plenius Trespas.</i> 288.</p> - -<div class="sidenote">Licence to walk<br /> -over ground.</div> -<p>A bailiff may give licence to another to walk over -the ground, for this is a trespass to the possession only, -<span class="pagenum"><a name="Page_22" id="Page_22">{22}</a></span> -and the bailiff hath the disposition of the profits of the -possession. (<i>dub.</i>) <cite>1 Roll. Abr.</cite> 339.</p> - -<div class="sidenote">Damage feasant.</div> -<p>A bailiff of a manor may himself or command another -to take beasts <i>damage feasant</i> on the land, for -he hath the care of all things within the manor. -<cite>1 Roll. Abr.</cite> 339.</p> - -<div class="sidenote">General acts.</div> -<p>He may do any thing for his masters benefit, but -not to his prejudice without his assent. <cite>Cro. Jac.</cite> 178.</p> - -<p>And therefore he cannot give seisin of rent, nor -exchange the lords land. (<cite>41 E. 3. 26</cite>) <cite>Cro. Jac.</cite> 178.</p> - -<div class="sidenote">Distress for<br /> -amerciament.</div> -<p>Bailiff without special warrant from the steward -cannot distrain for amerciament in a leet. <cite>Moore</cite>, 607. 574.</p> - -<p><i>Popham</i> 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 <i>B. R.</i> -without warrant. But <i>Gawdy</i>, <i>e contra</i>, that he may -distrain for lawful amerciaments by reason of the -office. <cite>Cro. Eliz.</cite> 698.</p> - -<p>Bailiff cannot distrain <i>ex officio</i> for amerciaments. -<cite>Cro. Eliz.</cite> 748.</p> - -<p>Bailiff cannot distrain for amerciament by command -of the lord of the manor, nor otherwise than -<span class="pagenum"><a name="Page_23" id="Page_23">{23}</a></span> -by virtue of a precept directed to him by the steward -of the court. <cite>Carth.</cite> 75.<span -class="fnanchor"><a name="Ref_33" id="Ref_33" href="#Foot_33">[33]</a></span></p> - -<div class="sidenote">Arrest.</div> -<p>Bailiff of a franchise which hath <i>Retorna Brevium</i> -cannot arrest a man without warrant to him made by -the sheriff upon the writ in his hands. <cite>Keilwey</cite>, 86 <i>b.</i><span -class="fnanchor"><a name="Ref_34" id="Ref_34" href="#Foot_34">[34]</a></span></p> - -<div class="sidenote">Delivery of prisoner.</div> -<p>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. -<cite>Cro. Car.</cite> 447.<span -class="fnanchor"><a name="Ref_35" id="Ref_35" href="#Foot_35">[35]</a></span></p> - -<div class="pagenum"><a name="Page_24" id="Page_24">{24}</a></div> - -<div class="sidenote">Process.</div> -<p>Bailiff of a franchise cannot execute a process within -his franchise, but by the precept of the sheriff. <cite>29 E. 3. 42.</cite> -<cite>Coron.</cite> 462. <cite>2 Hale P. C.</cite> 68.<span -class="fnanchor"><a name="Ref_36" id="Ref_36" href="#Foot_36">[36]</a></span></p> - -<div class="sidenote">Writ of inquiry.</div> -<p>Case, judgement by <i>nil dicit</i>, writ of inquiry of -damages to the sheriff of Norfolk, who returns a -<i>mandavi ballivo</i>, 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. <cite>Hobart.</cite> 83.</p> - -<div class="sidenote"><i>Elegit.</i></div> -<p>Bailiff of a liberty may make an inquisition and extent -upon an <i>Elegit</i> by warrant from the sheriff, and shall -deliver the moiety, and not the jury. <cite>Cro. Car.</cite> 319.</p> - -<div class="pagenum"><a name="Page_25" id="Page_25">{25}</a></div> - -<div class="sidenote">Bail-bond.</div> -<p>Bailiff of a franchise [under <cite>23 H. 6. c. 9.</cite>] has -power to take a bail bond, and must take it to himself, -and by the name of his office. <cite>Comyns.</cite> 380.</p> - -<p>Bailiff of a franchise may take bond in sheriffs name. -<cite>3 Keble</cite>, 71. 117. 125.</p> - -<div class="sidenote">Waiver of franchise.</div> -<p>Baily of hundred<span -class="fnanchor"><a name="Ref_37" id="Ref_37" href="#Foot_37">[37]</a></span> -may waive his franchise and arrest as sheriffs baily<span -class="fnanchor"><a name="Ref_38" id="Ref_38" href="#Foot_38">[38]</a></span>. -<cite>3 Keble</cite>, 71.</p> - -<div class="sidenote">Capias against two.</div> -<p>Capias or distress against two, sheriff may serve as -to one and bailiff as to the other. <cite>31 H. 6. 13.</cite></p> - -<p>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. -<cite>36 H. 6. 1.</cite> <cite>Br. Retorne de Briefe.</cite> 65.<span -class="fnanchor"><a name="Ref_39" id="Ref_39" href="#Foot_39">[39]</a></span></p> - -<div class="pagenum"><a name="Page_26" id="Page_26">{26}</a></div> - -<p>By <cite>2 E. 3. c. 3.</cite> 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.</p> - -<div class="sidenote">Attorney.</div> -<p>By <cite>4 H. 4. c. 19.</cite>, 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.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_32" id="Foot_32" href="#Ref_32">[32]</a> -And such deputy it should seem ought to be made by writing -(<cite>9 Rep.</cite> 51, b.). Though it is said <cite>21 H. 7. 37.</cite> that the sheriff or a -steward may make deputy without deed.</p> - -<p class="nodent"><a name="Foot_33" id="Foot_33" href="#Ref_33">[33]</a> -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 <i>ex officio</i>. The fines and amerciaments -within the liberties of the duchy are, however, usually levyed -by writ of <i>levari facias <span class="amp">&</span> capias</i> out of the duchy court. And,</p> - -<p>By Keble, precept to bailiff by nude parol is as effectual in court <i>Baron</i> -as by writing, because the trial shall be all <i>per pais</i> and not by the record: -for all is but matter <i>in fait</i>. <i>Quod fuit concessum.</i> <cite>16 H. 7. 14.</cite></p> - -<p class="nodent"><a name="Foot_34" id="Foot_34" href="#Ref_34">[34]</a> -<i>Per</i> 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 (<i>per curiam</i>) 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, -<cite>1 L. Ray.</cite> 190. <i>Hammon</i> v. <i>Jermyn</i>.</p> - -<p><i>N. B.</i> 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.</p> - -<p class="nodent"><a name="Foot_35" id="Foot_35" href="#Ref_35">[35]</a> -Bailiff of a liberty arrested the party, and delivered him to the -sheriffs deputy, from whom he was rescued, and judgement for the plaintiff. -<i>Burgh</i> v. <i>Appleton, Sheriff of Essex</i>, cited <cite>Cro. Jac.</cite> 242. See the -Pleadings <cite>Declarations in the Upper Bench</cite>, 50. See also c. vi, (pl. 1.) -c. ix (fo. 50.)</p> - -<p>But in <i>Boothman</i> v. <i>Earl of Surry</i>, <cite>T. 27 G. 3. B. R.</cite> 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. <i>N. B.</i> Neither of the cases in Croke was -cited by defendants council.</p> - -<p class="nodent"><a name="Foot_36" id="Foot_36" href="#Ref_36">[36]</a> -In the <cite>Register</cite> are divers examples of original writs directed to -bailiffs of liberties: as for instance; writs of right patent, writs <i>de warrantia -diei</i>, writs of trespass, writs of <i>supersedens</i>, writs <i>de cartis reddendis</i>, -writs <i>de attornato pro custode</i>, writs <i>de attornato pro secta facienda</i>, writs <i>de -statuto</i>: The duchy court constantly issues writs of <i>levari facias</i> 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 <cite>Skin.</cite> 413, and <i>vide</i> <cite>F. N. B.</cite> <i>passim</i>.</p> - -<p class="nodent"><a name="Foot_37" id="Foot_37" href="#Ref_37">[37]</a> -This must be understood of a hundred in fee with <i>retorna brevium</i> -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 <i>bailiff of fee</i> in a county (<i>i. e.</i> 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 <i>bailiff of franchise</i>, and -for his act <i>non omittas</i> shall not issue, nor shall he make mention of -him in his return. <cite>27 Ass.</cite> p. 65. <cite>Br. Retorne de briefe</cite>, 69.</p> - -<p class="nodent"><a name="Foot_38" id="Foot_38" href="#Ref_38">[38]</a> -The sheriff of a county made a warrant <i>ballivis suis</i> 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 <i>ballivis suis</i>, 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. <cite>March.</cite> 25.</p> - -<p class="nodent"><a name="Foot_39" id="Foot_39" href="#Ref_39">[39]</a> -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 -<i>Cap'</i> or <i>Feri Fiac'</i> 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. <cite>5 Rep.</cite> 92.</p> - -</div> - -<h3>CHAPTER V.<br /> -<small><small>OF HIS DUTY</small> <i>i. e.</i> <small>WHAT HE MUST OR -SHALL DO OR NOT DO</small>.</small></h3> - -<div class="sidenote">Return of precept.</div> -<p><span class="uppercase">Baily</span> of a liberty must return his precept [to -the sheriff]. <cite>2 Keble</cite>, 838.</p> - -<p>Where the sheriff returned capias <i>quod mandavi -ballivo de D. qui respondit quod cepit corpus, &c.</i> and -hath not the body at the day, the bailiff is bound to -bring in the body, and not the sheriff, by <cite>Hill</cite>; but -by <cite>Hank</cite> he ought to deliver it to the sheriff, and he -to bring it in as officer immediate, as upon <i>fieri facias</i> -<span class="pagenum"><a name="Page_27" id="Page_27">{27}</a></span> -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: <i>contra</i> <cite>Thirn</cite>, and agreed with -<cite>Hill</cite>. <cite>11 H. 4. 48</cite> <cite>Br. Retorne de Briefe</cite>, 35<span -class="fnanchor"><a name="Ref_40" id="Ref_40" href="#Foot_40">[40]</a></span>.</p> - -<div class="sidenote">Bail.</div> -<p>By <cite>W. 1. (3 E. 1.) c. 15.</cite>, 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.</p> - -<p><span class="pagenum"><a name="Page_28" id="Page_28">{28}</a></span> -By <cite>23 H. 6. c. 9.</cite> 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 <i>utlagat'</i> or <i>excommunicatum</i>, -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.</p> - -<p><span class="pagenum"><a name="Page_29" id="Page_29">{29}</a></span> -By <cite>13 C. 2. st. 2. c. 2.</cite> § 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.</p> - -<div class="sidenote">Treatment of<br /> -person arrested.</div> -<p>By <cite>32 G. 2. c. 28.</cite> § 1., no sheriff, undersheriff, -bailiff, serjeant at mace, or other officer or minister -<span class="pagenum"><a name="Page_30" id="Page_30">{30}</a></span> -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 -<span class="pagenum"><a name="Page_31" id="Page_31">{31}</a></span> -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.</p> - -<div class="sidenote">Expences of<br /> -persons arrested.</div> -<p>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.</p> - -<div class="sidenote">Printed copy<br /> -of clauses.</div> -<p>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 -<span class="pagenum"><a name="Page_32" id="Page_32">{32}</a></span> -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.</p> - -<div class="sidenote">Privilege of persons<br /> -arrested in sending<br /> -for necessaries.</div> -<p>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 -<span class="pagenum"><a name="Page_33" id="Page_33">{33}</a></span> -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.</p> - -<div class="sidenote">Certificate of felons.</div> -<p>By <cite>3 H. 7. c. 3.</cite> 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 -<span class="pagenum"><a name="Page_34" id="Page_34">{34}</a></span> -of the same gaol, upon pain to forfeit for every -default an hundred shillings.</p> - -<div class="sidenote">Felons goods.</div> -<p>By <cite>1 R. 3. c. 3.</cite> 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.</p> - -<div class="sidenote">Return of jurors.</div> -<p>By <cite>W. 2. (13 E. 1.) c. 38.</cite> 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.</p> - -<p><span class="pagenum"><a name="Page_35" id="Page_35">{35}</a></span> -By <cite>21 E. 1. st. 1.</cite> no sheriff, <span class="amp">&c.</span> 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,<span -class="fnanchor"><a name="Ref_41" id="Ref_41" href="#Foot_41">[41]</a></span> -unless he have lands or tenements to the value of a hundred -shillings by the year at least.</p> - -<p>By the <i>Articuli super chartas</i>, <cite>28 E. 1. c. 9.</cite> 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.</p> - -<p>By <cite>42 E. 3. c. 11.</cite> 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.</p> - -<p>By <cite>11 H. 4. c. 9.</cite> 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 -<span class="pagenum"><a name="Page_36" id="Page_36">{36}</a></span> -the officers of the said sheriffs or bailiffs sworn and -known to make the same.<span -class="fnanchor"><a name="Ref_42" id="Ref_42" href="#Foot_42">[42]</a></span></p> - -<p>By <cite>2 H. 5. st. 1. c. 8.</cite> bailiffs of franchises shall -cause to be impanelled sufficient persons [who have -lands, <span class="amp">&c.</span> 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.</p> - -<p>By <cite>2 H. 5. st. 2. c. 3.</cite> 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.</p> - -<p>By <cite>6 H. 6. c. 2.</cite> bailiffs of franchises shall make -their returns or answer to the sheriffs in special assizes -[<i>i. e.</i> as to panels between demandant and tenant] -eight days before the session, upon pain of 40l.</p> - -<p>By <cite>8 H. 6. c. 9.</cite> 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 -<span class="pagenum"><a name="Page_37" id="Page_37">{37}</a></span> -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.</p> - -<p>By <cite>15 H. 6. c. 5.</cite> 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.)</p> - -<p>By <cite>23 H. 6. c. 9.</cite> sheriffs, undersheriffs, bailiffs of -franchises, nor any other bailiff, shall return upon any -<span class="pagenum"><a name="Page_38" id="Page_38">{38}</a></span> -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.</p> - -<p>By <cite>27 Eliz. c. 6.</cite> § 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, <span class="amp">&c.</span> to the clear -yearly value of 4l. at the least, (penalty on sheriff, -<span class="amp">&c.</span> for returning that cannot dispend so much, 20l.)</p> - -<p>By § 2. upon every first writ of <i>habeas corpora</i> or -<i>distringas</i> with a <i>nisi prius</i> delivered of record to the -sheriff or other minister or ministers to whom the -making of the return shall appertain, [such sheriff, -<span class="amp">&c.</span>] 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.</p> - -<p>By <cite>27 Eliz. c. 7.</cite> 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 -<span class="pagenum"><a name="Page_39" id="Page_39">{39}</a></span> -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.</p> - -<p>By <cite>4 & 5 W. & M. c. 24.</cite> § 15. all jurors (other -than strangers upon trials <i>per medietatem linguę</i>) 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 <i>nisi prius</i>, -<i>oyer and terminer</i>, 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 <i>venire facias</i> 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.</p> - -<p>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 -<span class="pagenum"><a name="Page_40" id="Page_40">{40}</a></span> -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 <cite>7 & 8 W. 3. c. 32.</cite> -<cite>9 G. 1. c. 8.</cite> § 2. EXP.]</p> - -<p>By <cite>7 & 8 W. 3. c. 32.</cite> § 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. -<span class="pagenum"><a name="Page_41" id="Page_41">{41}</a></span> -C. P. or E.] or to be or serve in any jury at the assizes, -sessions of <i>Oyer</i> and <i>Terminer</i>, gaol delivery, or sessions -of the peace that shall not be named or mentioned in -the said list.</p> - -<p>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<span -class="fnanchor"><a name="Ref_43" id="Ref_43" href="#Foot_43">[43]</a></span>. -[Made perpetual by <cite>6 G. 2. c. 37.</cite>]</p> - -<p>By <cite>4 Ann. c. 16.</cite> § 6. every <i>Venire facias</i> 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</p> - -<p>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 -<span class="pagenum"><a name="Page_42" id="Page_42">{42}</a></span> -upon any of them or to any writ, bill, action or information -upon any penal statute.<span -class="fnanchor"><a name="Ref_44" id="Ref_44" href="#Foot_44">[44]</a></span></p> - -<div class="sidenote">View.</div> -<p>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 <i>Distringas</i> or <i>Habeas corpora</i> 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.<span -class="fnanchor"><a name="Ref_45" id="Ref_45" href="#Foot_45">[45]</a></span></p> - -<p>By <cite>3 G. 2. c. 25.</cite> § 2. duplicates of the lists [made -according to <cite>7 & 8 W. 3. c. 32.</cite> <cite>3 & 4 Ann. c. 18.</cite> -<span class="pagenum"><a name="Page_43" id="Page_43">{43}</a></span> -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.</p> - -<p>By § 4. no persons shall be returned as jurors to -serve on trials at any assizes or <i>nisi prius</i>, 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<span -class="fnanchor"><a name="Ref_46" id="Ref_46" href="#Foot_46">[46]</a></span>.</p> - -<p>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 <i>nisi prius</i>; or in the said courts of great -<span class="pagenum"><a name="Page_44" id="Page_44">{44}</a></span> -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, <span class="amp">&c.</span> is to give without fee -or reward; and the said book shall be transmitted by -such sheriff, <span class="amp">&c.</span> to his successor from time to time.</p> - -<p>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.</p> - -<p>By § 8. every sheriff or other officer to whom the -return of the <i>Venire facias juratores</i>, or other process -for the trial of causes before justices of assize or <i>nisi -prius</i> in any county in England shall belong, shall, -upon his return of every such writ of <i>Venire facias</i> -(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 -<span class="pagenum"><a name="Page_45" id="Page_45">{45}</a></span> -persons to be inserted in the panel annexed to every -<i>venire facias</i>, 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 <i>nisi prius</i> in -such county, or one of them.</p> - -<p>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<span -class="fnanchor"><a name="Ref_47" id="Ref_47" href="#Foot_47">[47]</a></span>.</p> - -<p>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 <cite>6 G. 2. c. 37.</cite> § 1.]</p> - -<div class="sidenote">Distress.</div> -<p>By <cite>51 H. 3. st. 4.</cite> (<i>De Districtione Scaccarii</i>) -When a sheriff or other the Kings bailiff doth take the -beasts of another for the Kings debt, or any other -<span class="pagenum"><a name="Page_46" id="Page_46">{46}</a></span> -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.</p> - -<div class="sidenote">Replevin.</div> -<p>By <i>Stat. de Marleberge</i> <cite>52 H. 3. c. 21.</cite><span -class="fnanchor"><a name="Ref_48" id="Ref_48" href="#Foot_48">[48]</a></span> -if the beasts of any man be taken and wrongfully -<span class="pagenum"><a name="Page_47" id="Page_47">{47}</a></span> -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.</p> - -<p>By <cite>W. 1. c. 17.</cite> if any take the beasts of others -and cause them to be driven to a castle or fortress<span -class="fnanchor"><a name="Ref_49" id="Ref_49" href="#Foot_49">[49]</a></span>, -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<span -class="fnanchor"><a name="Ref_50" id="Ref_50" href="#Foot_50">[50]</a></span> -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 -<span class="pagenum"><a name="Page_48" id="Page_48">{48}</a></span> -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.</p> - -<div class="sidenote">Hue and cry.</div> -<p>By <cite>W. 1. c. 9.</cite> 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, <span class="amp">&c.</span> 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.</p> - -<p>By <i>Stat. de Wynton</i> <cite>13 E. 1. st. 2. c. 6.</cite> sheriffs -and bailiffs within franchises and without, higher or -lower, and that have any bailiwick or forestry in fee -<span class="pagenum"><a name="Page_49" id="Page_49">{49}</a></span> -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.</p> - -<p>If bailiffs of liberties have come at the hue levyed -according to this statute is one of the articles of inquiry -thereupon. <cite>34 E. 1. st. 2.</cite></p> - -<div class="sidenote">Names to returns.</div> -<p>By <cite>12 E. 2. c. 5.</cite> 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.</p> - -<div class="sidenote">Roberdesmen, &c.</div> -<p>By <cite>5 E. 3. c. 14.</cite> 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.</p> - -<div class="sidenote">Decayed bridges.</div> -<p>By <cite>22 H. 8. c. 5.</cite> § 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 -<span class="pagenum"><a name="Page_50" id="Page_50">{50}</a></span> -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.</p> - -<div class="sidenote">Attendance on<br /> -the justices.</div> -<p>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. <cite>20 E. 4. 6.</cite> -<cite>Br. Forfeiture de terres</cite>, <span class="amp">&c.</span> 115.</p> - -<p>By <cite>27 H. 8. c. 24.</cite> § 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.</p> - -<div class="pagenum"><a name="Page_51" id="Page_51">{51}</a></div> - -<div class="sidenote">Inquiry at sessions.</div> -<p>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 <i>viz.</i> 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. <cite>Fitz. Iust. P. fol. 28.</cite> (<cite>Crompton.</cite> 49.)</p> - -<p>And this inquiry was by virtue of <cite>20 E. 3. c. 6.</cite> -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.</p> - -<div class="sidenote">Account.</div> -<p>By <i>stat. de Scac.</i> <cite>51 H. 3. st. 5.</cite> § 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 -<span class="pagenum"><a name="Page_52" id="Page_52">{52}</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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, <span class="amp">&c.</span> 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.</p> - -<div class="pagenum"><a name="Page_53" id="Page_53">{53}</a></div> - -<div class="sidenote">Estreats.</div> -<p>By <cite>42 E. 3. c. 9.</cite> 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.</p> - -<div class="sidenote">Bailiffs of the<br /> -Savoy, and Borough<br /> -of Southwark.</div> -<p>By <cite>8 & 9 W. 3. c. 27.</cite> § 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, <span class="smcap">head bailiff of the liberty of the Duchy of Lancaster</span>, -or high sheriff of the county of Surrey, or -<span class="smcap">bailiff of the liberty of the borough of Southwark</span> -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 <i>posse comitatus</i> 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, -<span class="pagenum"><a name="Page_54" id="Page_54">{54}</a></span> -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.)</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_40" id="Foot_40" href="#Ref_40">[40]</a> -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.</p> - -<p class="nodent"><a name="Foot_41" id="Foot_41" href="#Ref_41">[41]</a> -<i>De ballivis suis</i>; the printed translation reads "any of their <i>bailiffs</i>;" -but this is only one out of numberless instances of its gross and -shameful inaccuracy.</p> - -<p class="nodent"><a name="Foot_42" id="Foot_42" href="#Ref_42">[42]</a> -This act extends to inquests before coroners. <cite>Cro. Car.</cite> 134.</p> - -<p class="nodent"><a name="Foot_43" id="Foot_43" href="#Ref_43">[43]</a> -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.</p> - -<p class="nodent"><a name="Foot_44" id="Foot_44" href="#Ref_44">[44]</a> -This proviso, with respect to actions or informations upon penal statutes, -is taken away by <cite>24 G. 2. c. 18.</cite> § 3.</p> - -<p class="nodent"><a name="Foot_45" id="Foot_45" href="#Ref_45">[45]</a> -By <cite>3 & 4 Ann. c. 18.</cite> §§ 3, 4, particular directions are given relative -to the return of jurors within the county of <i>York</i>. See also <cite>1 Ann. st. 2. c. 13.</cite> § 3. -and <cite>7 & 8 W. 3. c. 32.</cite> §§ 7, 8.</p> - -<p class="nodent"><a name="Foot_46" id="Foot_46" href="#Ref_46">[46]</a> -By <cite>4 G. 2. c. 7.</cite> § 1. this clause not to extend to the county of -<i>Middlesex</i>. And by § 2. no person shall be returned to serve as a juror -at any session of <i>nisi prius</i> in the said county, who has been returned at -any such session, in the two terms or vacations immediately preceding.</p> - -<p class="nodent"><a name="Foot_47" id="Foot_47" href="#Ref_47">[47]</a> -By <cite>4 G. 2. c. 7.</cite> all leaseholders in the county of <i>Middlesex</i>, upon -leases where the improved value shall amount to 50l. or upward <i>per -annum</i>, over and above all ground rents or other reservations, shall be liable -and obliged to serve upon juries.</p> - -<p class="nodent"><a name="Foot_48" id="Foot_48" href="#Ref_48">[48]</a> -That this statute was made in a parliamentary council at <i>Westminster</i>, -in the <i>forty-third</i> year of this King, and not at <i>Marleberge</i>, in -the <i>fifty-second</i>, is proved by Mr. Prynne in his <i>Animadversions</i> on -<cite>4 Inst.</cite> p. 190.</p> - -<p class="nodent"><a name="Foot_49" id="Foot_49" href="#Ref_49">[49]</a> -And so it is if he that distrain chase the distress into any other -house, park or other place of strength. <cite>2 Inst.</cite> 193.</p> - -<p class="nodent"><a name="Foot_50" id="Foot_50" href="#Ref_50">[50]</a> -<i>Note</i>, 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. <cite>2 Inst.</cite> 195.</p> - -</div> - -<h3>CHAPTER VI.<br /> -<small>OF HIS INDEMNITY AND PROTECTION.</small></h3> - -<div class="sidenote">Arrest, and<br /> -non-return<br /> -of writ.</div> -<p><span class="uppercase">If</span> 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. -<cite>8 E. 4. 17.</cite> And see also <cite>21 H. 7. 22.</cite> <cite>Keilwey</cite> -87. 89.</p> - -<div class="sidenote">Mandate.</div> -<p>If the sheriff write to a bailiff of franchise in such -form, <i>Ballivo libertatis, &c. salutem, mandatum Domini -regis recepi in hęc verba</i>, 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. <cite>Dalton. -Sheriff.</cite> 112.<span -class="fnanchor"><a name="Ref_51" id="Ref_51" href="#Foot_51">[51]</a></span></p> - -<div class="pagenum"><a name="Page_55" id="Page_55">{55}</a></div> - -<div class="sidenote">Old bailiff<br /> -and new<br /> -bailiff.</div> -<p>If upon a <i>fieri facias</i> 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 <i>preterquam</i>, &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. -<cite>1 Roll. Abr.</cite> 99.</p> - -<div class="sidenote">False return<br /> -of sheriff.</div> -<p>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 <i>mandavi ballivo</i>; upon affidavit of -fact sheriff was ordered to attend. And agreed action -lay against sheriff for false return as <i>non est invent.</i> -<span class="amp">&c.</span> -and his amerciaments were estreated. <cite>12 Mod.</cite> 311.</p> - -<p>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. <cite>Moore</cite>, 432.</p> - -<p>Rule for the bailiff of the [liberty of the] duchy -of Lancaster to return the sheriffs mandate on a <i>fi. -fa.</i> 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. <cite>Barnes</cite>, 416.</p> - -<div class="pagenum"><a name="Page_56" id="Page_56">{56}</a></div> - -<div class="sidenote">Escape from gaoler<br /> -of liberty.</div> -<p>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 <i>capias ad respondendum</i> was directed to the sheriff of -Middlesex, who made a <i>mandate</i> 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 -<i>mandate</i>, returned <i>cepi corpus</i>, 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. -<i>Respondeat superior</i> extends to civil matters only. The -prosecutor may bring his action for the escape. <i>Barnes</i>, -34.</p> - -<div class="pagenum"><a name="Page_57" id="Page_57">{57}</a></div> - -<div class="sidenote">Escape.</div> -<p>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 -<i>ouster</i>, but the bailiff is only chargeable. <cite>1 Roll. Abr.</cite> 98.</p> - -<p>J. S. was taken in execution by <i>Ca. Sa.</i> by the bailiffs -of a liberty in Suffolk, by warrant of the sheriff -of the county. The bailiffs before the return of the -<i>Ca. Sa.</i> 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. <cite>Moore</cite>, 299. <cite>Burton</cite> [<i>Boyton</i>] v. <i>Andrews</i>. -<cite>3 Rep.</cite> 43. <i>S. C.</i></p> - -<p>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. (<i>Contra</i>, of a thing that is not casual of -common course.) <cite>41 E. 3. Account. 33.</cite></p> - -<div class="sidenote">Rescous.</div> -<p>If the Kings bailiff distrain for rent and rescous is -made, the bailiff shall have the writ of rescous and -not the King. <cite>F. N. B.</cite> 101.</p> - -<p>If the sheriff send unto the bailiff of the liberty to -levy fines and amercements for the King, and the bailiff -<span class="pagenum"><a name="Page_58" id="Page_58">{58}</a></span> -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. <cite>F. N. B.</cite> 101.</p> - -<p>If a man sue forth execution, and hath <i>capias</i> 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. <cite>F. N. B.</cite> -101.</p> - -<p>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. <cite>Clay.</cite> 149. <i>Foster</i> v. <i>Legerd</i>. (<cite>Viner, -Rescous. A.</cite> 3.)</p> - -<div class="sidenote">Inquest by the sheriff.</div> -<p>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. <cite>30 Ass. p.</cite> 5. -<cite>Br. Retorne de briefe</cite>. 73.</p> - -<div class="sidenote">Return by<br /> -<cite>7 & 8 W. 3.<br /> -c. 32.</cite> § 6.</div> -<p>By <cite>7 & 8 W. 3. c. 32.</cite> § 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 -<span class="pagenum"><a name="Page_59" id="Page_59">{59}</a></span> -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 <i>noli -prosequi</i> 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. <i>Note</i>, that although -the word <i>sheriff</i> 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.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_51" id="Foot_51" href="#Ref_51">[51]</a> -This case is printed by Mr. Dalton as an extract in French, and he -refers to <cite>10 H. 6. 37.</cite> 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.</p> - -</div> - -<h3>CHAPTER VII.<br /> -<small>OF HIS RESPONSIBILITY AND PUNISHMENT</small></h3> - -<div class="sidenote">Omission of name<br /> -in return.</div> -<p><span class="uppercase">By</span> <cite>12 E. 2. c. 5.</cite> if any sheriff or other bailiff in -his returns leave out his name he shall be grievously -amerced to the Kings use.</p> - -<div class="sidenote">False returns.</div> -<p>By <cite>1 E. 3. st. 1. c. 5.</cite> 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.</p> - -<p>An action is maintainable against bailiff of a franchise -who makes false return, and not against the sheriff. -<cite>Moore</cite>, 432.</p> - -<p><span class="pagenum"><a name="Page_60" id="Page_60">{60}</a></span> -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. <cite>1 Roll. Abr.</cite> 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. <cite>1 Roll. Abr.</cite> 99.</p> - -<div class="sidenote">Writ <i>ad<br /> -distringendum<br /> -ballivum</i>.</div> -<p><i>Debt</i>, the sheriff returned <i>Capias, Quod mandavi -ballivo, &c. qui respondit quod cepit corpus</i>, and the -person does not come, and the sheriff was amerced -[Q. <i>For what reason?</i>] and writ awarded <i>ad distringendum -ballivum ad habendum corpus, &c.</i> <cite>47 E. 3. 25.</cite> -<cite>Br. Retorne de briefe.</cite> 24. But yet</p> - -<p>[In] <i>Replevin</i> [where] the sheriff returned the -<i>Capias, Quod mandavi ballivo, qui mihi respondit quod -haberet corpus ejus hic ad hunc diem</i>, and the body did -not come, <i>non omittas</i> was awarded, and not <i>distringas -ballivum ad habendum corpus</i>. <cite>38 E. 3. 1.</cite> <cite>Br. Retorne -de briefe.</cite> 44.</p> - -<p><i>Case</i>; for that upon a Capias directed to him against -J. S. he <i>made a warrant to a bailiff of a franchise to -arrest</i> the said J. S. which was done accordingly, and -yet the sheriff returned <i>non est inventus</i>. Resolved -<i>per tot. cur.</i> 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. <cite>Cro. Eliz.</cite> 729.</p> - -<div class="pagenum"><a name="Page_61" id="Page_61">{61}</a></div> - -<div class="sidenote">Bailiff plaintiff,<br /> -hath not the<br /> -body at the day.</div> -<p>Where sheriff returned <i>quod mandavi ballivo, &c.</i> -who is plaintiff, if the bailiff returns <i>quod cepit corpus</i> -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. <cite>36 H. 6. 1.</cite> <cite>Br. Retorne de briefe.</cite> 65.</p> - -<div class="sidenote">False return<br /> -for extortion.</div> -<p><i>Capias</i>, the sheriff returned <i>mandavi ballivo, & quod -ipse cepit corpus, sed illud hic habere non potest quia languidus -est, &c.</i> 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 <i>subpoena</i> -40l. to appear and bring the body, &c. <cite>11 H. 6. 42.</cite> -<cite>Br. Retorne de briefe.</cite> 123.</p> - -<div class="sidenote">Escape.</div> -<p>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. -<cite>5 E. 4. 1 b. 2.</cite> <cite>Brook, Escape</cite> 40. <cite>1 Roll. Abr.</cite> 99. -<cite>Noy.</cite> 27. <cite>Buller. N. P.</cite> 69.</p> - -<p>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. <cite>30 H. 6. 6.</cite> <cite>Br. Escape</cite>, <i>pl.</i> 44.</p> - -<p><span class="pagenum"><a name="Page_62" id="Page_62">{62}</a></span> -If a warrant out of a <i>Fieri facias</i> 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. -<cite>1 Roll. Abr.</cite> 94.</p> - -<div class="sidenote">Non-return of<br /> -the warrant.</div> -<p>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. <cite>Keilwey</cite>, -86, <i>b.</i><span -class="fnanchor"><a name="Ref_52" id="Ref_52" href="#Foot_52">[52]</a></span></p> - -<p>Eyres sued a writ out of <i>C. B.</i> <i>versus</i> 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. (<i>viz.</i> 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. <i>Note</i>, 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. <cite>1 Salk.</cite> 54.</p> - -<p><span class="pagenum"><a name="Page_63" id="Page_63">{63}</a></span> -Rule made for an attachment of contempt against -the bailiff of the liberty of Holderness, in the county -of York, for not returning a <i>mandate</i> 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 <i>mandavi ballivo</i>, 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 <i>mandate</i> was not returned; all the officers -present reporting this to be the practice. <cite>Barnes</cite>, 35.</p> - -<p>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. <cite>Litt.</cite> 33. -<cite>Viner, Actions [Case. Disceit.] F. c. 5.</cite></p> - -<div class="sidenote">Escape of felon.</div> -<p>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. <cite>1 Hale P. C.</cite> 595.</p> - -<div class="sidenote">King to have<br /> -fines on bailiff.</div> -<p>By <cite>27 H. 8. c. 24.</cite> § 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.</p> - -<div class="sidenote">Amerciaments<br /> -for insufficient<br /> -returns.</div> -<p><span class="pagenum"><a name="Page_64" id="Page_64">{64}</a></span> -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<span -class="fnanchor"><a name="Ref_53" id="Ref_53" href="#Foot_53">[53]</a></span>.</p> - -<div class="sidenote">Acts against<br /> -sheriffs extended<br /> -to bailiffs.</div> -<p>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.)</p> - -<div class="sidenote">Returning<br /> -persons not<br /> -summoned.</div> -<p>By <cite>27 Eliz. c. 6.</cite> § 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 -<span class="pagenum"><a name="Page_65" id="Page_65">{65}</a></span> -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.</p> - -<div class="sidenote">Taking money, <span class="amp">&c.</span><br /> -for not returning<br />jurors.</div> -<p>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, <span class="amp">&c.</span> 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.)</p> - -<div class="sidenote">Offences against<br /> -<i>27 Eliz. c. 12.</i></div> -<p>By <cite>27 Eliz. c. 12.</cite> § 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.</p> - -<div class="sidenote">Summoning persons<br /> -contrary to<br /> -<i>7 & 8 W. 3. c. 32.</i></div> -<p>By <cite>7 & 8 W. 3. c. 32.</cite> § 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 <i>oyer</i> and -<span class="pagenum"><a name="Page_66" id="Page_66">{66}</a></span> -<i>terminer</i>, 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 <i>non ponendis in assizis & juratis</i>, -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.</p> - -<div class="sidenote">Summoning persons<br /> -contrary to<br /> -<i>3 G. 2. c. 25.</i> § 3.</div> -<p>By <cite>3 G. 2. c. 25.</cite> § 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 <i>nisi prius</i> 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 <i>nisi prius</i> 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, <span class="amp">&c.</span> for every such person so summoned -and returned as aforesaid as the said judge or justice -of assize, <i>nisi prius</i>, <span class="amp">&c.</span> shall think meet not exceeding -10l. and not less than 40s.</p> - -<div class="sidenote">Wilful transgression<br /> -contrary to<br /> -<i>3 G. 2. c. 25.</i> § 4.</div> -<p>By § 4. if any sheriff shall wilfully transgress [in -returning any persons as jurors to serve on trials at -<span class="pagenum"><a name="Page_67" id="Page_67">{67}</a></span> -any assizes or <i>nisi prius</i>, 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 <i>nisi prius</i>, <span class="amp">&c.</span> 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.</p> - -<div class="sidenote">Wilful transgression<br /> -contrary to<br /> -<i>3 G. 2. c. 25.</i> § 6.</div> -<p>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, <i>nisi prius</i>, <span class="amp">&c.</span> 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.</p> - -<div class="sidenote">Offences against<br /> -<i>32 G. 2. c. 28.</i></div> -<p>By <cite>32 G. 2. c. 28.</cite> § 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 -<span class="pagenum"><a name="Page_68" id="Page_68">{68}</a></span> -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.</p> - -<div class="sidenote">Account.</div> -<p>By <i>Stat. de Marleberge</i> (<cite>52 H. 3. c. 23.</cite>) 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.</p> - -<div class="sidenote">Wreck and stray, &c.</div> -<p>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. <cite>Br. Accompt.</cite> <i>pl.</i> 94. -(<i>cites</i> <cite>10 H. 7. 6.</cite>)</p> - -<p>So of toll, and of the profits of a common pound. -<i>Ibid.</i></p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_52" id="Foot_52" href="#Ref_52">[52]</a> -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 [<i>l.</i> 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. <cite>2 Brownlow.</cite> 50.</p> - -<p class="nodent"><a name="Foot_53" id="Foot_53" href="#Ref_53">[53]</a> -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. <cite>T. 20 E. 3.</cite> -<cite>Fitz. Retourne del vicount.</cite> 113.</p> - -</div> - -<h3>CHAPTER VIII.<br /> -<small>OF HIS FEES.</small></h3> - -<div class="sidenote">Arrest.</div> -<p><span class="uppercase">By</span> <cite>23 H. 6. c. 9.</cite> 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 -<span class="pagenum"><a name="Page_69" id="Page_69">{69}</a></span> -profit, but such as follow, <i>viz.</i> 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.)</p> - -<div class="sidenote">Extent or execution.</div> -<p>By <cite>29 Eliz. c. 4.</cite> 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.)</p> - -<p>The bailie of the franchise on <cite>29 Eliz. cap. 4.</cite> takes -all execution fees. <cite>3 Keble</cite>. 71.</p> - -<div class="sidenote"><i>Habere facias<br /> -possessionem<br /> -aut seisinam.</i></div> -<p>By <cite>3 G. 1. c. 15.</cite> § 16. it shall not be lawful for -any sheriff, <span class="amp">&c.</span> 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 <i>habere facias possessionem aut seisinam</i>, -<span class="pagenum"><a name="Page_70" id="Page_70">{70}</a></span> -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. <i>per annum</i>, over -and above the said yearly value of 100l. (Penalty 200l.)</p> - -<div class="sidenote">Extent and<br /> -<i>liberate</i>, &c.</div> -<p>By <cite>8 G. 1. c. 25.</cite> § 5. no sheriff to take for the -extent and <i>liberate</i> & <i>habere facias possessionem</i> or <i>seisinam</i> -on the real estate, by virtue of such extent, any more -than the above fees. (Same penalty.)</p> - -<div class="sidenote">Process,<br /> -under 10l. &c.</div> -<p>By <cite>5 G. 2. c. 2.</cite> § 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.]</p> - -<div class="sidenote">English notice.</div> -<p>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.<span -class="fnanchor"><a name="Ref_54" id="Ref_54" href="#Foot_54">[54]</a></span></p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_54" id="Foot_54" href="#Ref_54">[54]</a> -This notice is to the effect following, <i>viz.</i> <i>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.</i></p> - -</div> - -<div class="pagenum"><a name="Page_71" id="Page_71">{71}</a></div> - -<h3>CHAPTER IX.<br /> -<small>PLEADINGS.</small></h3> - -<div class="sidenote">Creation.</div> -<p>One may be bailiff by a simple grant (<i>i. e.</i> by -parol) or patent or inheritance, and therefore no need -to shew how. <cite>H. 33. H. 6. [3.]</cite> <cite>Fitz. Monstrauns de -faitz, &c.</cite> 93. and <cite>Br. Bailie</cite>. 2.</p> - -<div class="sidenote">Patent.<br />Duchy.<br />Aid of the King.</div> -<p>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. -<cite>15 H. 7. 17.</cite> <cite>Br. Ayde del roy</cite>, 51.</p> - -<div class="sidenote">Corporation.</div> -<p>Bailiffs of a corporation (in avowry for beasts taken -<i>damage feasant</i>) 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. <cite>3 Lev.</cite> 107.</p> - -<div class="sidenote">Distress.</div> -<p>Bailiff who distrains ought to shew in what right -he distrains. <cite>7 H. 4. 28.</cite> <cite>Br. Distresse</cite>, 78.</p> - -<div class="sidenote">Distress for<br /> -amerciament.</div> -<p>To bailiff justifying distress for amerciament, it -sufficeth to take conusance of the presentment and no -more and <i>non refert</i> as to him, whether it be true or -not. <cite>41 Ed. 3. 27.</cite> <cite>24 Ed. 3. 26.</cite> <cite>Cro. Eliz.</cite> 748.</p> - -<p><span class="pagenum"><a name="Page_72" id="Page_72">{72}</a></span> -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. <cite>1 Salk.</cite> 108.</p> - -<p>Bailiff justifying distress for amerciament in leet in -trespass may plead <i>presentatum fuit</i> without averring -the fact, for <i>non refert</i> 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. <cite>1 Salk. 107.</cite> <cite>3 Salk. 52.</cite></p> - -<div class="sidenote">Exchequer.</div> -<p>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. <cite>1 Roll. Abr.</cite> 539. and <i>vide</i> <cite>Lane</cite>, 55.</p> - -<div class="sidenote">Averment.</div> -<p>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. <cite>42 E. 3. 6.</cite> <cite>Br. Accompt.</cite> -26.</p> - -<p>Where bailiff of franchise [under <cite>23 H. 6. c. 9.</cite>] -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. <i>Comyns</i>, 380.</p> - -<p><span class="pagenum"><a name="Page_73" id="Page_73">{73}</a></span> -Debt upon bond by the plaintiff who was chief -bailiff of the liberty of Pontefract in Yorkshire, but -he did not declare as <i>capital' ballivus</i>, but yet by the -whole court it was held good; for otherwise the defendant -might have craved <i>oyer</i>, and have [had] it entered -<i>in hęc verba</i>, and then have pleaded the statute -of <i>23 H. 6.</i> that it was taken <i>colore officii</i>, but now -it shall be intended good upon the demurrer to -the declaration. And <i>Ellis, J.</i> said, that so it was -lately resolved in this court in the case of one Conquest. -And judgement was given for the plaintiff. -<cite>2 Mod.</cite> 36.</p> - -<div class="sidenote">Inferior court.</div> -<p>Bailiff of an inferior court the process whereof he -executes, must shew the jurisdiction of that court in -pleadings. <cite>1 Keble</cite>, 53.</p> - -<div class="sidenote">Trial.</div> -<p>Cary bailiff of Westminster <i>v.</i> Buckhurst for entering -his liberty and executing a <i>fi. fa.</i> 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. -<cite>1 Show</cite>, 17. <cite>Comb.</cite> 31. <i>S. C.</i></p> - -<div class="sidenote">Tort.</div> -<p>Where a bailiff is charged directly with a tort, it -ought to be shewn that he is bailiff of a liberty, who -has <i>Returna Brevium</i>. <cite>Comyns</cite>, 379.</p> - -<div class="sidenote">Declaration v. bailiff.</div> -<p>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 -<span class="pagenum"><a name="Page_74" id="Page_74">{74}</a></span> -otherwise no colour to charge him, and therefore ought -to be specially shewn. <cite>Cro. Car.</cite> 330.</p> - -<div class="sidenote">Pernor.<br />Quo warranto.</div> -<p>Against a <i>pernor</i> the plaintiff need not shew how he -claims the privilege of return of writs; but in a <i>quo -warranto</i> where the defendant must make a title he -ought to shew it. <cite>Hardres</cite>, 423.</p> - -<div class="sidenote">Return of the writ.</div> -<p>Bailiff of a liberty in justification need not shew -the return of the writ. <cite>Cro. Car.</cite> 447.</p> - -<div class="sidenote">Sheriffs return.</div> -<p><i>Debt</i>, to the <i>capias</i> the sheriff returned <i>non est inventus</i>, -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, <span class="amp">&c.</span> <i>Tota curia</i>, you shall not have this -averment against the return of the sheriff. Nor in any -case, but too little issues by the statute. <cite>H. 2 H. 4. 14.</cite> -<cite>Fitz. Averment</cite>, 17.</p> - -<p>In case against a bailiff for the false return of <i>nulla -bona</i> upon a <i>fieri facias</i>, 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 <i>per curiam</i>, 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 <cite>36 Hen. 6. 40 [1.]</cite> <cite>L. -Raym.</cite> 184.</p> - -<div class="sidenote">Mandate.</div> -<p>Upon a demurrer, Powel said that the plea was -naught, because it sets forth a mandate to the bailiff -<span class="pagenum"><a name="Page_75" id="Page_75">{75}</a></span> -of the liberty, and did not shew that it was under the -hand and seal of the sheriff. <cite>2 Vent.</cite> 193. But see -<cite>1 Ventris</cite>, 46. that on motion to quash a return of a -rescous, because it was <i>mandavi ballivis</i>, who took -him <i>virtute warr' pręd'</i>, and it was said, <i>mandavi</i> did -not imply that it was in writing, the exception was -disallowed by the court.<span -class="fnanchor"><a name="Ref_55" id="Ref_55" href="#Foot_55">[55]</a></span></p> - -<div class="sidenote">County.</div> -<p>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. -<cite>Trin. 23. Car. B. R.</cite> For the franchise hath no relation -to the county. <cite>S. P. R.</cite> 404.</p> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_55" id="Foot_55" href="#Ref_55">[55]</a> -And quęre whether mandate be ever pleaded to be under the <i>hand</i> -of the sheriff.</p> - -<p><i>Nota</i>, that <i>mandavi</i> does not mean, and of course should not be translated, -<i>I have commanded</i>, but <i>I have sent to</i>. The sheriff cannot <i>command</i> -the bailiff of the franchise, having no sort of authority over him in -any case whatever.</p> - -</div> - -</div> - -<div class="pagenum"><a name="Page_76" id="Page_76">{76}</a></div> - -<div class="appendix"> - -<div class="chapter"></div> - -<h3>APPENDIX.</h3> - -<h4>No. I.<br /> -<small>CAPIAS BILL.</small></h4> - -<p><i>Middlesex.</i> The sheriff is commanded that he -take <i>A. B.</i> 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 <i>C. D.</i> gentleman, -of a plea of trespass; and also to a bill of the -said <i>C.</i> against the aforesaid <i>A.</i> 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.</p> - -<h4>No. II.<br /> -<small>WARRANT TO THE BAILIFF OF THE LIBERTY.</small></h4> - -<p class="negdent3">To the bailiff of the liberty [of the Lord the -King] [of his duchy of <i>L.</i>] of <i>E.</i></p> - -<p><i>Middlesex.</i> 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 <i>A. B.</i> 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 <i>C. D.</i> gentleman of -<span class="pagenum"><a name="Page_77" id="Page_77">{77}</a></span> -a plea of trespass; and also to a bill of the said <i>C.</i> -against the aforesaid <i>A.</i> 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—.</p> - -<div class="foot"> -<div class="right0"><i>R.</i> (the attorneys name.)</div> -</div> - -<p class="negdent3">Oath for 59l. and upwards.</p> - -<p>Before you arrest the defendant, beware he is not -an ambassador or servant to an ambassador, or in some -other way priviledged or protected.</p> - -<p class="negdent3">Precept signed —— inst.</p> - -<table class="braces" summary=""> - -<tr> - <td><i>F. G.</i></td> - <td>⎫</td> - <td></td> -</tr> - -<tr> - <td></td> - <td>⎬</td> - <td>Sheriff.</td> -</tr> - -<tr> - <td><i>H. I.</i></td> - <td>⎭</td> - <td></td> -</tr> - -</table> - -<h4>No. III.<br /> -<small>BAILIFFS WARRANT TO HIS UNDER-BAILIFFS.</small></h4> - -<p><i>J. K.</i> esquire, bailiff of the liberty of [the lord the -King] of <i>E.</i> in the county of Middlesex, to <i>L. M. N. O.</i> -and <i>John Doe</i>, 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 <i>A. B.</i> 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 -<i>C. D.</i> gentleman of a plea of trespass; and also to a -bill of the said <i>C.</i> against the aforesaid <i>A.</i> for one -<span class="pagenum"><a name="Page_78" id="Page_78">{78}</a></span> -hundred pounds of debt, according, &c. to be exhibited. -Dated the —— day of —— 17—.</p> - -<div class="foot"> -<div class="right1"><i>R.</i></div> -<div class="right0">By the same bailiff.</div> -</div> - -<p>Before you arrest, &c. (<i>as above</i>.)</p> - -<p class="negdent3">Oath for 59l. and upwards.</p> - -<p class="negdent3">Precept signed —— inst.</p> - -<h4>No. IV.<br /> -<small>CHIEF BAILIFFS RETURN.</small></h4> - -<p class="negdent3">To <i>F. G.</i> and <i>H. I.</i> esquires, sheriff of the -county of Middlesex.</p> - -<p><i>J. H.</i> esquire, bailiff of the liberty [of the lord -the King] of <i>E.</i> 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 <i>A. B.</i> which he is -ready to have before the lord the King, (<span class="amp">&c.</span> <i>as in the -warrant</i>) as by the said warrant he is commanded. -(<i>Or thus</i>: that <i>A. B.</i> whom, <span class="amp">&c.</span> <i>See the indenture -post.</i>)</p> - -<div class="foot"> -<div class="right0">By the same bailiff.</div> -</div> - -<h4>No. V.</h4> - -<p class="negdent3">Form of an indenture of return between the -bailiff of a liberty and the sheriff, according -to the statute of York<span -class="fnanchor"><a name="Ref_56" id="Ref_56" href="#Foot_56">[56]</a></span>.</p> - -<p>This indenture made, &c. between <i>J. K.</i> esquire, -bailiff of the liberty of the lord the King of <i>E.</i> in the -<span class="pagenum"><a name="Page_79" id="Page_79">{79}</a></span> -county of <i>M.</i> of the one part, and <i>F. G.</i> and <i>H. I.</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 <i>G. H.</i> gentleman, which he will -have ready before the lord the King at Westminster, -at the day therein contained. <i>Or thus</i>: which he -hath delivered to the said sheriff. <i>Or thus</i>: that <i>G. H.</i> -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. -(<i>And so of other returns</i>). In witness, <span class="amp">&c.</span></p> - -<h4>No. VI.<br /> -<small>SHERIFFS RETURN.</small></h4> - -<p>By virtue of this writ to me directed, I have commanded -<i>J. K.</i> esquire, bailiff of the liberty [of the -lord the King] of <i>E.</i> 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 -<span class="pagenum"><a name="Page_80" id="Page_80">{80}</a></span> -said bailiff answereth that he hath taken the body of -the within named <i>A. B.</i> which he hath ready at the -time and place within mentioned. <i>Or thus</i>: that the -within named <i>A. B.</i> is not found in his bailiwick. <i>Or -thus</i>: who hath given me no answer.</p> - -<h4>No. VII.<br /> -<small>NON OMITTAS.</small></h4> - -<p>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 <i>A. B.</i> -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 -<i>C. D.</i> gentleman, of a plea of trespass and also to a -bill of the said <i>C.</i> against the aforesaid <i>A.</i> 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.</p> - -</div> - -<div class="footnote"> - -<p class="nodent"><a name="Foot_56" id="Foot_56" href="#Ref_56">[56]</a> -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: <small>BE IT REMEMBERED</small>, that <i>J. K.</i> esquire, bailiff -<span class="amp">&c.</span> hath certifyed and returned unto <i>F. G.</i> and <i>H. I.</i> sheriff, <span class="amp">&c.</span> that by -virtue, <span class="amp">&c.</span> Witness the hands of the said bailiff and sheriff, the —— day -of —— 1790.</p> - -</div> - -<p class="gap-above x-small center">FINIS.</p> - -<p class="gap-above x-small center">Printed by A. Strahan, Law Printer to His Majesty,<br /> -Printers-Street, London.</p> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of The Office of Bailiff of a Liberty, by -Joseph Ritson - -*** END OF THIS PROJECT GUTENBERG EBOOK THE OFFICE OF BAILIFF OF A LIBERTY *** - -***** This file should be named 54235-h.htm or 54235-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/4/2/3/54235/ - -Produced by MWS, Chris Pinfield and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/American Libraries.) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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