Lately
Printed
for
J.
Walthoe
.
THe
Pleadings
and
Arguments
of
Mr.
Finch
and
Sir
Robert
Sawyer
,
the
Kings
Solicitor
and
Attorney
General
;
and
Sir
George
Treby
,
the
Recorder
of
London
,
and
now
Lord
Chief
Justice
of
the
Common
Pleas
,
and
the
late
Chief
Justice
Pollexfen
,
for
the
City
of
London
;
with
the
Judgment
Entred
thereupon
.
The
whole
Proceedings
faithfully
taken
from
the
Records
.
Wherein
is
comprized
all
the
Learning
of
Corporations
,
whether
Forfeitable
,
how
,
and
for
what
;
and
whether
a
Corporation
can
be
surrendred
.
Which
Points
do
not
only
concern
the
City
of
London
;
but
all
other
Corporations
in
England
.
In
Folio
,
price
6
s.
Lex
Custumaria
;
Or
,
A
Treatise
of
Copy-hold
Estates
,
in
respect
of
the
Lord
and
Copyholder
.
Wherein
the
Nature
of
Customs
in
general
,
and
of
particular
Customs
,
Grants
and
Surrenders
,
and
their
Constructions
and
Expositions
in
reference
to
the
thing
granted
or
surrendred
,
and
the
Uses
of
Limitations
of
Estates
,
are
clearly
Illustrated
.
Admittances
,
Presentments
,
Fines
and
Forfeitures
are
fully
handled
,
and
many
Quaeries
and
Difficulties
by
late
Resolutions
setled
.
Leases
,
Licenses
,
Extinguishments
of
Copy-hold
Estates
,
and
what
Statutes
extend
to
Copy-hold
Estates
are
explain'd
.
And
also
of
Actions
by
Lord
or
Tenant
,
and
the
manner
of
declaring
and
pleading
,
either
generally
,
or
as
to
particular
Customs
,
with
Trials
and
Evidence
of
Custom
,
and
of
Special
Verdict
.
Together
with
a
Collection
of
many
Cases
,
wherein
a
Copy-holder
may
receive
relief
in
the
Court
of
Chancery
.
To
which
are
annexed
Presidents
of
Conveyances
,
&c.
In
Octavo
,
price
5
s.
THE
Compleat
Sheriff
:
Wherein
is
set
forth
,
His
OFFICE
and
AUTHORITY
;
With
Directions
,
how
and
in
what
manner
to
Execute
the
same
,
according
to
the
Common
and
Statute
Laws
of
this
Kingdom
,
which
are
now
in
force
and
use
:
And
the
Judgments
and
Resolutions
of
the
Judges
in
divers
late
Cases
,
in
the
several
Courts
of
Westminster
,
relating
thereunto
.
Likewise
of
Vnder-Sheriffs
and
Their
Deputies
;
and
where
the
High-Sheriff
shall
be
Answerable
for
their
Defaults
,
and
where
not
,
&c.
Together
with
the
Learning
of
-
Bail
Bonds
;
with
an
Explication
of
Stat.
23
H.
6.
cap.
10.
and
Pleadings
thereon
.
-
Retorns
of
Writs
,
Remedies
against
Non
Retorn
and
Faux
Retorn
,
Habeas
corpus
,
Venires
,
Challenges
and
Enquiry
of
Damages
.
Prisoners
and
Prisons
.
Execution
by
Fieri
fac'
,
Elegit
,
&c.
-
Escapes
,
Actions
and
Pleadings
therein
.
Fresh
Pursuit
,
and
other
Pleas.
Attachment
,
Amerciament
:
Actions
,
Declarations
and
Pleadings
on
the
Sheriffs
Nonfesance
or
Male-fesance
.
-
Customs
of
London
,
as
to
Prisons
,
Courts
,
Process
,
Sheriffs
Fees
,
Extortion
,
Sheriffs
Accompts
,
&c.
To
which
is
added
,
The
Office
and
Duty
of
Coroners
.
—
Deus
nobis
haec
otia
fecit
.
London
,
Printed
by
the
Assigns
of
R.
and
E
:
Atkyns
,
Esquires
;
for
Iohn
Walthoe
,
and
are
to
be
sold
at
his
Shop
in
Vine-Court
,
Middle-Temple
.
MDCXCVI
.
The
PREFACE
.
WHEN
Sir
Edward
Coke
in
his
first
Institutes
,
fo.
168.
tells
us
,
That
the
Sheriff
hath
Triplicem
Custodiam
:
(1)
Vitae
Justitiae
.
(2)
Vitae
Legis
.
(3)
Vitae
Reipublicae
,
he
thereby
gives
us
a
short
,
but
pithy
Description
of
this
Important
Office
.
And
if
Execution
be
the
Life
of
the
Law
(
as
without
doubt
it
is
)
it
seems
to
be
seated
in
the
Sheriff
,
as
in
the
Heart
,
which
is
primum
vivens
,
and
ultimum
moriens
.
Original
Process
moves
and
is
directed
to
him
;
Subsequent
Proceedings
are
Circulated
in
him
,
and
at
last
are
Finished
and
compleated
by
him
.
This
gives
us
to
Understand
,
not
only
the
Importance
,
but
the
Extensiveness
of
the
Sheriffs
Office
.
Especially
when
we
Consider
how
many
Thousands
of
Families
have
Suffered
irreparable
Ruin
by
the
Ignorance
or
Carelessness
(
not
to
say
worse
)
of
Sheriffs
and
their
Officers
;
Nay
,
they
themselves
failing
in
the
due
discharg
of
their
Duty
,
have
oftentimes
rendred
themselves
Obnoxious
to
chargable
Payments
and
difficult
Defences
.
Certainly
then
,
to
understand
well
the
Law
about
Sheriffs
,
and
their
fit
Management
and
Demeanor
in
all
the
Branches
and
Circumstances
relating
to
their
Office
,
is
a
thing
of
as
great
Consideration
as
any
that
can
be
propounded
to
us
,
as
Members
of
a
Body
Politick
.
We
have
indeed
many
that
have
Treated
of
some
Parts
thereof
(
inter
alia
)
as
Crompton
,
Kitchin
,
Greenwood
&c.
But
I
know
but
two
that
have
designedly
Undertaken
this
Title
.
Mr.
Dalton
(
a
Person
of
Great
Learning
and
Industry
)
has
discovered
much
Reading
in
our
Old
Books
,
and
is
also
of
very
great
use
to
direct
us
in
CASES
that
may
seldom
and
rarely
happen
;
and
yet
there
is
much
of
him
now
Antiquated
,
and
diverted
into
other
Channels
.
The
Receiving
Fee-farm
Rents
,
Waifs
,
Estrays
,
Deodands
,
Wards
bona
Felonum
,
&c.
seldom
or
never
troubling
the
Sheriff
,
having
been
Extinct
or
Aliened
by
Act
of
Parliament
,
or
granted
to
Lords
of
Mannors
,
or
other
Persons
.
Besides
,
some
things
are
there
delivered
for
Law
,
and
so
might
pass
in
his
time
,
which
have
received
quite
contrary
Resolutions
;
and
Thousands
of
Cases
have
hapned
since
,
which
are
not
to
be
found
in
him
,
nor
in
the
least
mentioned
by
him
.
Neither
has
he
been
so
happy
as
we
could
wish
,
to
Treat
Methodically
of
Rescousers
,
Escapes
,
&c.
which
make
a
great
Figure
in
our
Books
;
and
he
has
totally
omitted
(
unless
it
be
sparsim
)
the
proper
Remedies
against
the
Nonseasance
or
Male-feasance
of
the
Sheriffs
and
their
Officers
.
I
have
,
in
many
Titles
,
directed
you
to
refer
almost
wholly
to
him
,
as
not
being
willing
to
Transcribe
them
;
but
they
are
such
as
are
Common
,
and
known
of
course
,
or
else
seldom
or
never
practicable
.
Mr.
Wilkinson
is
(
for
so
much
as
he
hath
Undertaken
)
Neatly
and
Judiciously
done
:
But
as
to
the
Office
of
SHERIFFS
,
tho'
the
Book
bears
that
Title
;
yet
it
is
the
least
part
thereof
,
not
exceeding
above
Four
printed
Sheets
;
so
that
we
cannot
think
that
sufficient
Direction
to
us
.
Nor
have
either
of
them
given
any
Directions
as
to
the
Laying
of
Actions
,
Declarations
,
Pleadings
,
and
Trials
or
Evidence
;
and
therefore
I
have
been
the
more
careful
to
place
them
under
their
proper
Titles
.
Upon
these
Reflections
,
it
seems
not
Unreasonable
to
imagine
,
That
a
Treatise
of
this
Nature
may
find
some
Acceptance
,
and
meet
with
a
favourable
Reception
,
as
well
from
Gentlemen
(
who
are
,
or
may
be
capable
for
this
weighty
Office
,
and
thereby
be
better
enabled
to
Serve
their
King
and
Country
,
and
also
Themselves
)
as
from
the
Students
and
Practisers
of
our
Common
Law
.
THE
CONTENTS
.
CHAP.
I.
OF
Counties
.
When
the
Realm
was
divided
into
Counties
.
Vicecomit
.
notatio
nominis
.
Sheriffs
how
made
in
former
times
,
how
at
this
day
,
the
Sheriffs
●onour
Power
and
Priviledge
.
His
Office
not
apportionable
.
What
he
may
do
as
Conservator
pacis
.
How
favoured
in
the
Execution
of
his
Office
.
Of
his
Assistance
.
In
what
Things
and
Cases
he
is
restrained
.
Not
to
Let
County
or
Hundred
to
Farm
,
&c.
CHAP.
II.
What
the
Sheriff
must
do
at
the
entrance
into
his
Office
.
The
Form
of
the
Writ
of
Discharge
of
the
Old
Sheriff
.
The
Form
of
bis
Oath
.
How
and
before
whom
he
is
to
be
Sworn
and
the
Retorn
.
The
Cities
and
Towns
in
England
which
have
Sheriffs
,
and
how
many
each
hath
.
Of
Delivery
of
Writs
and
Prisoners
by
the
Old
Sheriff
to
the
New
.
Till
what
time
the
Old
Sheriff
or
his
Officers
may
Act.
What
's
to
be
done
in
Case
of
the
Kings
Death
.
What
shall
be
said
a
good
delivery
of
Prisoners
,
and
how
to
be
made
.
The
Form
of
the
Indenture
of
setting
over
the
Prisoners
and
the
Writs
.
The
Form
of
the
Retorn
of
those
that
have
been
executed
by
the
Old
Sheriff
.
What
Acts
may
and
must
the
Old
Sheriff
do
after
his
Discharge
,
and
what
remedy
against
him
for
a
Misdemeanor
in
his
Office
.
When
and
where
the
New
Sheriff
must
Read
his
Patent
,
and
make
his
Deputies
in
the
County
and
Courts
above
.
How
and
in
what
Cases
or
not
,
his
Office
is
determined
before
his
Year
be
out
.
CHAP.
III.
Of
Under-sheriff
.
His
Nature
and
Oath
.
In
what
Cases
the
Sheriff
might
execute
the
Office
in
person
.
He
cannot
abridge
the
Under-sheriffs
Power
Of
the
Sheriffs
Deputy
in
the
County
and
Courts
above
.
Pleading
by
the
Deputy
.
Of
Rescue
from
him
.
What
Bonds
or
Covenants
between
the
High-Sheriff
and
the
Under-sheriff
,
Bayliff
,
Gaole●●
,
the
High-sheriff
shall
be
answerable
for
or
not
,
and
what
Action
shall
be
brought
against
the
High
sheriff
,
Under
sheriff
or
Gaolers
,
Cases
and
Resolutions
about
the
Rule
Respondeat
Superior
.
Where
and
in
what
Cases
the
Lord
of
a
Franchise
shall
be
answerable
.
Of
Tryalls
,
by
the
Sheriff
,
or
Sheriffs
Certificate
,
or
by
the
Record
.
CHAP.
IV.
Of
Bayliffs
.
Of
Bayliffs
of
Hundreds
,
their
Nature
,
Office
and
Oath
.
Of
Special
Bayliffs
,
and
of
Premises
on
making
of
Special
Bayliffs
to
save
harmless
from
Escapes
.
Of
Bayliffs
of
Franchises
,
their
Nature
,
Power
,
Office
.
And
of
Retorns
by
them
,
the
manner
of
Pleading
by
Bayliff
of
Franchises
.
In
what
Cases
the
Sheriff
may
enter
into
the
Liberty
of
Bayliffs
of
Fees
or
Guildable
.
CHAP.
V.
Of
the
County
Court
.
The
Nature
,
Style
:
the
Jurisdiction
as
to
the
Summons
it
holds
.
Plea
of
time
and
place
.
The
Process
,
the
Forms
of
the
Original
Process
.
Of
Execution
of
County
Clerk
.
Adjournment
of
Court.
Of
Replevin
.
The
Sheriffs
Office
and
Demeanor
therein
,
and
the
Retorns
,
and
what
are
good
or
not
.
Pone
Withernam
,
the
manner
of
Replevying
.
The
Retorno
habendo
.
Second
Deliverance
.
Property
.
Recordare
.
Privileges
in
Replevin
.
The
Form
of
the
Bond
for
Security
,
of
Accedas
ad
Curiam
&
Resalo
.
Of
the
Writ
of
Justicies
of
the
Sheriffs
Town
.
The
Jurisdiction
and
Pleadings
.
CHAP.
VI.
Of
the
Original
Process
in
real
Actions
,
and
in
personal
Actions
,
with
the
Retorns
.
Summons
and
Attachment
of
Mean
Process
.
What
Arrest
by
the
Sheriff
or
Bayliff
shall
be
good
or
not
.
Of
the
Bayliffs
shewing
his
Warrant
,
as
to
the
time
of
the
Arrest
before
or
after
the
Retorn
,
in
respect
of
the
persoons
Arrested
of
Non
omittas
,
who
are
Priviledged
or
Protected
from
Arrests
,
or
not
in
regard
of
Person
or
Courts
.
Where
Arrest
shall
be
lawful
or
not
,
in
respect
of
the
Warrant
.
Of
Warrants
to
Special
Bayliff
,
and
to
known
Bayliffs
.
Of
Pledges
de
prosequendo
.
CHAP.
VII
.
Of
Bail
.
Of
Special
Bail
.
Who
shall
take
Bail
or
not
.
Of
Bail
Bondss
.
Explication
of
the
Statute
23
H.
6
c.
10.
the
design
of
the
Statute
.
The
Form
to
be
observed
according
to
the
Statute
.
What
Obligations
and
Conditions
are
within
this
Statute
or
not
,
in
respect
of
the
Persons
and
Officers
to
whom
they
are
made
,
in
the
respect
of
the
Form
,
of
the
Courts
and
of
the
Sureties
.
The
meaning
of
the
words
Colore
Officij
.
Of
the
Statute
23
H.
6.
being
pleaded
,
and
when
and
how
to
be
pleaded
.
What
appearance
to
a
Sheriffs
Bond
is
good
or
not
.
Of
the
Sheriffs
Retorn
on
taking
Bail
.
Of
Insufficient
Bail
.
Of
refusing
sufficient
Bail
,
and
the
Remedy
against
the
Sheriff
for
so
doing
.
The
Sheriff
pleading
this
Statute
in
Actions
brought
against
him
.
Of
Bail
Bonds
being
discharged
or
assigned
.
Of
other
Bonds
besides
Bail
Bonds
entered
into
the
Sheriff
as
for
being
a
true
Prisoner
,
saving
harmless
of
Escapes
,
Fees
,
&c.
and
the
Pleadings
thereto
,
with
all
the
late
Cases
and
Resolutions
relating
thereunto
.
In
what
other
Cases
the
Sheriff
may
Bail
or
not
.
CHAP.
VIII
.
Of
Retorns
of
Writs
.
When
they
may
be
retorned
.
General
Cases
and
Maxims
of
Retorns
.
What
Writs
must
be
retorned
,
and
what
need
not
.
What
shall
be
a
good
Retorn
of
Writs
,
or
how
Retorns
shall
be
made
,
in
respect
of
the
person
that
makes
the
Retorn
,
as
Sheriffs
,
Bayliffs
of
Franchises
,
&c.
in
respect
of
the
Forms
,
and
wherein
sufficient
Retorns
are
aided
,
where
Retorns
shall
be
void
,
for
the
uncertainty
or
repugnancy
.
What
shall
be
a
good
Retorn
against
the
admittance
of
the
Party
or
not
.
What
shall
be
a
sufficient
excuse
for
the
Sheriffs
Non
retorn
of
a
Writ
and
what
not
.
What
Acts
,
Process
or
Appearance
shall
be
good
before
the
Retorn
.
The
Penalty
on
the
Sheriff
by
the
Court
for
Non
Retorns
.
Where
Sheriffs
Retorns
shall
be
amended
and
where
not
.
CHAP.
IX
.
Remedy
against
the
Sheriff
for
a
false
Retorn
.
Where
and
in
what
Cases
,
and
what
Action
lies
against
him
for
false
Retorn
.
Where
such
Actions
are
to
be
brought
,
how
to
be
laid
,
and
the
manner
of
declaring
therein
.
Of
the
Reason
of
the
Retorn
of
a
Cepi
Corpus
on
Bail
taken
;
Where
Action
lies
against
the
Sheriff
or
Bayliff
of
a
Franchise
,
and
which
of
them
upon
a
false
Retorn
.
Remedy
against
the
Sheriff
for
not
retorning
the
Writ
,
or
against
his
Bayliff
,
or
against
the
Bayliff
of
Franchise
.
Of
laying
the
Action
and
declaring
thereupon
.
Where
and
in
what
Cases
a
Man
may
Traverse
the
Sheriffs
Retorn
or
not
.
CHAP.
X.
Of
Venire
facias
,
Habeas
Corpus
,
Jurat'
Distringas
.
What
Retornes
shall
be
good
on
a
Venire
or
not
.
Of
Amendments
of
Venires
&c.
Of
Tales
.
CHAP.
XI
.
Of
Habeas
Corpus
.
The
several
sorts
,
and
the
consequence
thereof
.
Of
the
Retorns
of
Habeas
Corpus
,
by
the
Sheriff
,
&c.
and
in
respect
of
the
Courts
.
Rules
on
Habeas
Corpus
.
Who
to
pay
the
Charges
.
The
Forms
of
the
Retorns
.
Retorns
of
Certiorari
.
CHAP.
XII
.
Two
sorts
of
Juries
.
Of
Retorns
of
Jurors
.
And
by
whom
to
be
retorned
.
What
manner
of
persons
shall
not
be
retorned
on
.
Juries
,
and
how
such
persons
shall
be
discharged
;
where
,
when
and
how
Persons
Exempt
shall
have
Action
against
the
Sheriff
for
Impannelling
them
.
Of
retorning
trop
petit
Issues
,
of
levying
the
Issues
.
Of
other
Erroneous
Proceedings
and
Misdemeanors
of
Sheriffs
about
and
concerning
Jurors
.
What
Estate
every
Juror
must
have
by
the
late
Statute
of
4
&
5
of
William
and
Mary
.
Of
Challenges
,
and
the
several
Sorts
and
Causes
of
Challeng
,
and
what
are
good
or
not
,
and
when
to
be
taken
.
CHAP.
XIII
.
Of
a
Writ
of
Enquiry
of
Damages
,
and
the
Sheriffs
Demeanor
therein
,
in
what
Cases
a
new
Writ
shall
be
granted
or
not
.
By
whom
to
be
executed
or
not
.
The
time
of
Executing
it
.
The
Form
of
the
Retorn
of
a
Writ
of
Enquiry
of
Damages
.
CHAP.
XIV
.
Where
and
in
what
Cases
the
Sheriffs
Retorn
of
a
Devastavit
shall
be
good
or
not
.
When
such
Retorn
to
be
made
.
How
the
Party
may
Discharge
himself
of
a
Devastavit
by
Plea
.
And
the
late
practise
,
and
not
by
Inquisition
.
CHAP.
XV.
Of
Prisons
;
To
whom
they
belong
,
and
the
place
where
to
be
kept
.
Who
may
be
Keepers
of
Gaols
,
&c.
and
how
Forfeitable
.
Of
the
Sheriff
of
Londons
Prison
,
and
of
the
Marshalsea
.
Of
the
Sheriffs
Demeanor
towards
Prisoners
.
Of
the
Prisoners
Misbehaviour
.
What
payment
of
a
Debt
to
a
Gaoler
shall
be
good
.
And
of
those
that
breake
Prison
.
CHAP.
XVI
.
Of
Executions
.
When
one
may
be
said
to
be
in
Execution
,
or
not
;
and
when
without
Prayer
,
or
not
.
To
what
Sheriff
,
and
of
what
Place
or
County
shall
Execution
be
awarded
of
a
Capias
ad
satisfaciendum
.
For
what
,
and
against
whom
〈◊〉
lies
;
and
the
Sheriffs
Demeanor
therein
,
and
Retorns
thereupon
.
CHAP.
XVII
.
Of
Fieri
facias
.
What
Goods
,
and
of
whom
,
shall
be
taken
in
Execution
by
Fieri
fac
'
,
or
not
.
After
the
Sheriff
has
seised
the
Goods
,
how
he
stands
in
the
Eye
of
the
Law
,
either
to
bring
Actions
for
the
Tortious
taking
them
away
from
him
,
or
to
make
satisfaction
to
the
party
who
Recovered
.
What
Remedy
against
the
Sheriff
for
the
Money
,
to
the
value
of
the
Goods
taken
in
Execution
,
or
not
;
and
how
to
be
pursued
.
The
Sheriffs
Office
and
Demeanor
in
Executing
a
Fieri
facias
.
Of
the
Sheriffs
selling
Goods
on
the
Fieri
fac
'
,
and
of
the
Venditioni
exponas
and
the
Retorn
.
What
shall
be
a
good
Retorn
of
the
Sheriff
on
a
Fieri
facias
,
or
not
Of
Restitution
to
Lands
or
Goods
,
seised
by
the
Sheriff
after
Reversal
of
the
Judgment
,
and
after
Sale
.
Of
the
Sheriffs
selling
a
Term
for
Years
,
taken
in
Execution
,
and
when
such
Sale
shall
be
good
,
or
not
.
Difference
between
the
extent
of
a
Term
on
Elegit
,
and
sale
by
Fieri
facias
.
Whether
a
Fieri
facias
,
on
a
Judgment
in
the
Kings
Bench
,
shall
go
into
Wales
.
CHAP.
XVIII
.
How
the
Sheriff
is
to
Demean
himself
in
giving
Possession
and
Seisin
upon
the
Writs
of
Habere
fac'
possession
'
,
or
Seisinam
,
as
to
the
manner
of
Executuing
,
and
the
Retorn
.
Of
a
Supersedeas
.
Where
it
shall
stay
the
Sale
of
Lands
or
Goods
,
or
not
.
What
amounts
to
a
Supersedeas
.
Where
and
when
a
Writ
of
Error
is
a
Supersedeas
.
Of
Audita
Querela
.
CHAP.
XIX
.
Of
Elegit
.
The
Sheriffs
Office
therein
.
The
difference
of
it
as
to
Lands
and
Goods
,
how
to
be
managed
by
the
Sheriff
that
it
may
be
well
Executed
,
and
what
things
may
be
Extended
,
or
not
.
Of
the
Inquisition
.
Retorns
of
Elegit
,
how
to
be
made
.
Where
New
Elegit
shall
be
had
.
Of
Extent
by
the
Bayliff
of
a
Liberty
.
The
Sheriffs
Office
about
Execution
for
the
King's
Debt
.
Of
Statute
Merchant
,
Staple
,
Recognizance
,
Liberate
.
The
differences
of
the
Retorns
.
Retorns
of
Scire
fac
.
The
Sheriffs
demeanor
as
to
Outlawries
and
Capias
Utlegatum
;
and
the
Retorns
.
CHAP.
XX.
Of
Rescous
.
Where
and
in
what
Cases
Action
lies
against
a
Sheriff
for
a
Rescous
;
and
what
Action
.
Diversity
between
Mean
Process
and
Execution
.
Where
the
Sheriff
makes
himself
chargable
by
his
Retorn
.
Where
,
and
what
Remedy
against
the
Rescouser
by
Action
,
or
Indictment
.
Of
Retorns
of
Rescous
,
what
is
good
,
or
not
.
Of
Laying
the
Action
,
and
how
to
Declare
.
Of
Rescous
,
and
Pleadings
in
it
.
The
Venue
in
this
Action
for
a
Rescue
.
CHAP.
XXI
.
Of
Escapes
.
Some
Maxims
and
Diversities
premised
.
Escapes
as
to
Mean
Process
and
Execution
.
What
shall
be
or
amount
to
an
Escape
of
a
Prisoner
out
of
Execution
,
or
not
.
Of
Escapes
in
respect
of
the
Old
and
New
Sheriffs
,
and
of
the
Prisoners
being
delivered
over
.
What
thing
or
act
shall
excuse
an
Escape
;
or
in
what
Cases
the
Sheriff
or
Gaoler
shall
not
be
Answerable
for
an
Escape
;
and
of
Erroneous
Process
Excucusing
,
and
how
far
and
in
what
Cases
.
Where
the
Escape
of
one
shall
not
be
a
Discharge
of
the
other
;
or
where
the
other
shall
have
Audita
Querela
or
not
.
Of
Actions
of
Debt
,
or
on
the
Case
.
by
the
party
against
the
Sheriff
for
an
Escape
.
Who
shall
have
such
Action
,
and
to
whom
it
shall
be
said
an
Escape
,
or
not
,
at
Election
.
CHAP.
XXII
.
Action
for
Escape
by
Executors
and
Administrators
,
where
it
lies
,
or
not
.
Against
whom
Action
of
Escape
lies
.
Where
Execution
shall
be
after
Execution
on
Escape
,
or
not
;
and
where
it
shall
not
be
a
Discharge
of
Execution
,
but
that
he
may
be
retaken
again
.
Of
laying
the
Action
,
and
manner
of
Declaration
in
this
Action
:
Where
the
Sheriff
shall
have
his
Acti●n
against
the
Prisoner
that
Escapes
,
and
how
to
Declare
against
him
.
CHAP.
XXIII
.
Of
Pleadings
by
the
Sheriff
to
Actions
for
Escape
.
What
shall
be
said
a
sufficient
Fresh
Pursuit
,
and
where
upon
Fresh
Pursuit
he
may
retake
the
Prisoner
,
or
not
;
and
where
the
Prisoner
,
upon
his
being
retaken
,
shall
have
his
Audita
Querela
,
or
not
.
Fresh
Pursuit
,
how
to
be
pleaded
.
Pleading
the
Statute
of
Limitations
:
Pleading
acknowledgment
of
Satisfaction
on
Record
by
the
Plaintiff
,
or
Accord
with
Satisfaction
.
Nultiel
Record
pleaded
,
and
how
.
Escape
by
Consent
of
the
Plaintiff
,
and
by
the
Sheriffs
License
.
Traverse
in
the
Pleadings
.
Supersedeas
,
Protection
,
Priviledge
.
Bar
by
Voluntary
Escape
.
Venue
,
Issue
,
Evidence
,
Special
Verdict
in
Actions
for
Escapes
.
Of
the
Escape
of
Felons
.
CHAP.
XXIV
.
What
Acts
of
the
Sheriffs
,
Bayliffs
,
&c.
shall
amount
to
a
False
Imprisonment
,
or
not
.
Pleading
by
Sheriffs
to
Actions
of
Trespass
,
False
Imprisonment
.
The
Rules
of
Pleading
in
such
Case
.
Justification
by
Mean
Process
,
as
to
the
Warrant
,
Time
,
Place
.
Quae
est
ad
eadem
Transgressio
,
what
it
refers
to
.
Traverse
of
the
Time
,
Place
.
Pleadings
and
Justification
by
Execution
:
By
Process
out
of
an
Inferior
Court
of
Record
,
and
how
to
be
pleaded
.
CHAP.
XXV
.
Of
Attachments
against
the
Sheriff
,
where
and
in
what
Cases
it
lies
,
or
not
:
And
where
against
him
for
a
thing
done
out
of
his
Office
.
Attachment
of
Money
in
the
Sheriffs
hand
.
Of
Attachment
against
others
,
and
against
the
Goods
and
the
Retorn
.
Of
Amerciaments
:
Where
,
and
in
what
cases
the
Sheriff
is
to
be
Amerced
.
CHAP.
XXVI
.
Remedy
against
the
Sheriffs
Bayliffs
,
&c.
for
Male-fesance
,
as
imbezelling
an
Exigent
.
For
entring
into
a
Corporation
which
had
Retorna
Brevium
.
For
not
delivering
a
Supersedeas
to
the
New
Sheriff
,
for
concealing
or
substracting
a
Writ
.
(
Bayliff
of
a
Liberty
chargable
for
his
Servant
,
not
for
the
Gaoler
.
)
For
refusing
sufficient
Bail
,
and
forcing
to
find
extraordinary
Bail
.
For
taking
Insuffient
Bail
.
For
not
bringing
Money
levied
by
Fieri
fac
'
into
Court
,
and
the
Statute
of
Limitations
pleaded
.
CHAP.
XXVII
.
Of
the
Sheriffs
Demeanor
in
Assignment
of
Dower
,
and
the
Retorn
.
The
Proclamations
.
The
Sheriffs
Office
about
Partition
.
His
Demeanor
in
the
Writ
De
Ventre
inspiciendo
.
About
Retorning
a
Force
.
About
a
Vi
Laica
removenda
.
How
the
Sheriff
shall
demean
himself
in
a
Writ
of
Enquiry
of
Waste
,
and
of
the
Retorns
thereof
.
Of
the
Writ
of
Estrepement
,
and
the
Retorn
of
it
.
The
Sheriffs
Office
in
an
Excommunicato
capiendo
.
CHAP.
XXVIII
.
Of
the
Retorn
of
Clericus
beneficiatus
,
and
of
other
Retorns
as
to
Clerks
.
The
Sheriffs
Office
in
a
Quare
Impedit
.
The
Sheriffs
Duty
at
the
Assizes
;
and
at
the
General
Quarter
Sessions
of
the
Peace
.
The
Sheriffs
Office
as
to
Election
,
and
Retorning
of
Burgesses
and
Knights
to
the
Parliament
.
The
Form
of
the
Indenture
for
the
Knights
of
the
Parliament
,
and
for
the
Burgesses
.
The
Sheriffs
Retorn
of
the
Writ
for
Electing
Parliament
Men.
CHAP.
XXIX
.
Customs
of
London
,
as
to
Officers
,
Prisons
,
Courts
,
Process
.
Of
the
Sheriffs
Court
.
How
to
Lay
the
Custom
of
the
Sheriffs
Court
.
The
difference
between
the
Mayors
Court
and
the
Sheriffs
Court
.
Sheriffs
Court
,
when
kept
.
The
manner
of
Entring
Actions
in
the
Compters
.
CHAP.
XXX
.
The
Sheriffs
Duty
as
to
the
Assizes
:
And
as
to
the
Sessions
of
the
Peace
.
CHAP.
XXXI
.
Of
Sheriffs
and
Officers
Fees
.
Of
Security
and
Remedy
for
Fees
.
What
Security
the
Sheriff
may
take
for
Fees
,
or
not
.
What
Remedy
the
Sheriff
shell
have
for
his
Fees
.
Where
the
Sheriff
shall
not
take
Fees
.
What
shall
be
said
Extortion
in
Sheriffs
and
Gaolers
,
and
how
punishable
.
What
shall
be
a
good
Consideration
in
Assumpsit
.
CHAP.
XXXII
.
Bonds
or
Covenant
between
the
High-sheriff
and
Vnder-sheriff
,
or
other
Officers
.
What
shall
be
good
in
Law
,
or
not
:
And
when
said
to
be
Forfeited
,
or
not
.
CHAP.
XXXIII
.
Of
Sheriffs
Accompts
.
CHAP.
XXXIV
.
Of
Coroners
.
How
the
Coroners
must
be
Chosen
,
and
the
Credit
the
Law
gives
to
them
;
and
how
and
when
they
shall
be
discharged
.
The
Coronors
Demeanor
as
to
Outlawries
.
Coroners
Inquest
.
THE
OFFICE
AND
DUTY
OF
SHERIFFS
,
&c.
CHAP.
1.
Of
Counties
.
When
the
Realm
was
divided
into
Counties
.
Vicecomites
.
Notatio
nominis
.
Sheriffs
eligible
in
former
Times
;
How
made
at
this
Day
.
The
Sheriffs
Honour
,
Power
and
Priviledge
.
His
Office
not
apportionable
.
What
he
may
do
as
Conservator
Pacis
.
How
favoured
in
the
Execution
of
his
Office
.
Of
his
Assistance
.
In
what
Things
and
Cases
he
is
restrained
.
THE
Sheriff
and
the
County
being
Correlata
,
I
shall
first
give
a
few
Observations
about
Counties
,
what
they
were
Originally
.
Counties
(
a
word
taken
from
the
French
,
)
or
Counties
.
Shires
(
a
word
taken
from
the
Saxons
,
)
are
certain
Circuits
and
Parts
of
the
Kingdom
,
into
which
the
whole
Realm
was
divided
for
the
more
convenient
Government
thereof
,
and
is
Governed
by
a
yearly
Officer
,
which
we
call
SHERIFF
,
which
is
compounded
of
two
Saxon
words
,
Shine
and
Reeve
,
Reeve
signifying
Praepositus
,
or
Governour
.
As
for
the
Time
when
and
by
whom
this
When
this
Realm
was
divided
into
Counties
.
1
Inst.
168.
Realm
was
divided
into
Counties
,
Authors
seem
to
differ
.
Coke
on
Littleton
,
fo.
168.
holds
,
that
they
were
divided
by
the
Britains
;
but
it
is
generally
held
(
as
Ingulph
,
&c.
)
that
they
were
divided
by
King
Egbert
or
Aelfred
:
But
tho'
Egbert
united
the
Heptarchy
,
yet
he
was
not
the
first
that
divided
the
Kingdom
into
Counties
,
nor
Aelfred
neither
,
as
some
imagine
.
For
as
Mr.
Selden
observes
,
about
the
Year
700
(
an
hundred
years
before
Egbert
)
one
of
Ina's
Laws
was
;
If
any
〈…〉
man
,
i.
e.
Sheriff
were
guilty
of
an
Escape
,
perdat
Comitatum
suum
.
Therefore
Ingulphus
meant
that
King
Elfred
did
divide
it
into
Hundreds
,
or
else
made
a
more
punctual
Division
than
was
before
.
Now
it
appears
that
the
Earls
of
the
Counties
,
had
the
custody
and
guard
of
the
Counties
long
before
the
Conquest
;
and
when
the
Earls
left
their
Custodies
,
then
was
the
Custodies
of
Counties
committed
to
Viscounts
,
and
they
are
thereupon
called
Vicecomites
,
Comites
,
Vicecomites
.
quia
vices
Comitis
supplent
.
And
we
seem
to
derive
all
this
from
the
Romans
;
for
what
we
call
Comitatus
,
was
by
them
called
Consulatus
,
and
what
the
Saxons
afterwards
called
Sh●ieve
,
or
Earl
,
the
Romans
called
Consul
;
and
the
Sheriff
was
Deputy
of
the
Consul
or
Earl
,
and
the
Romans
called
him
Viceconsul
.
1
Inst.
168.
Dugdale
Antiq.
War
.
Pref.
In
2
Bulstr
.
Chune
and
Pyots
Case
,
Coke
arguendo
,
seems
to
be
of
Opinion
,
that
there
were
no
Earls
before
the
Conquest
.
But
the
meaning
is
,
there
was
no
Hereditary
Earl
;
but
he
that
had
the
Office
,
had
it
at
the
pleasure
of
the
King
.
For
in
the
Preface
to
his
Reports
,
the
Third
Part
,
he
is
of
Opinion
,
there
were
Sheriffs
3
Rep.
Pref.
time
out
of
mind
before
the
Conquest
;
and
if
so
,
then
Earls
were
.
He
gives
an
undeniable
Argument
,
for
that
the
Trials
per
Juries
,
which
were
always
Returned
by
the
Sheriffs
,
were
before
the
Conquest
,
even
as
appears
by
Doomsday-Book
.
Now
we
know
that
Viscounts
were
not
Created
Viscounts
Original
.
till
the
Time
of
H.
6.
Sed
distinguendum
,
&c.
Viscount
signifies
a
Title
of
Honour
,
or
an
Office
of
Trust
.
As
a
Title
of
Honour
it
is
of
late
standing
;
but
as
an
Office
of
Trust
,
(
viz.
)
for
the
Government
of
the
County
,
it
was
time
out
of
mind
.
And
this
difference
I
ground
upon
Cambden
in
his
Britannia
:
Viscount
(
saith
he
)
haec
vetus
Officii
,
sed
nova
Dignitatis
appellatio
.
9
Rep.
in
fine
de
Lewes's
Case
.
The
Sheriff
at
Common
Law
was
Eligible
by
Sheriffs
in
Ancient
times
Eligible
by
the
County
.
the
County
,
as
the
Coroner
is
at
this
day
;
and
then
by
the
Death
of
the
King
his
Office
was
not
determined
,
no
more
than
the
Coroners
are
now
.
2
Brownl.
282.
Chamberlain
and
Goldsmith
.
But
by
Stat.
14
Ed.
3.
c.
7.
&
21
H.
8.
c.
20.
the
Judges
are
to
nominate
Three
persons
of
every
How
Chosen
at
this
day
,
and
when
.
County
to
be
presented
to
the
King
,
that
he
may
prick
one
of
them
,
which
by
the
Statute
is
to
be
done
3
Novemb.
being
Crastin
.
Animarum
;
and
yet
An.
16
Car.
1.
because
the
3d
of
November
was
the
first
day
of
the
Parliament
,
and
the
Lords
were
to
attend
upon
the
King
,
it
was
Resolved
by
the
Judges
,
that
it
might
be
well
put
off
till
another
day
;
and
the
Lord
Keeper
deferred
it
till
the
6th
of
November
.
Cro.
Car.
595.
But
the
Statute
of
9
Ed.
2.
restrains
not
the
King's
Power
at
Common
Law
;
but
the
King
may
constitute
a
Sheriff
without
Election
,
or
grant
it
in
Fee
;
and
he
may
still
make
Sheriffs
without
the
Judges
,
Dyer
225.
for
all
Acts
of
Dyer
225.
Acts
of
Grace
,
how
to
be
construed
.
Grace
flow
from
him
.
As
Dyer
211.
the
Commission
of
Trial
of
Piracy
upon
the
Statute
of
28
H.
8.
is
good
,
tho'
the
Chancellor
does
not
nominate
the
Commissioners
as
the
Statute
appoints
,
&c.
And
the
Reason
is
given
by
my
Lord
Hobart
.
Hob.
14.
b.
Colt
and
Glover's
Case
,
&
214.
These
Statutes
,
and
the
like
,
were
made
to
put
things
in
ordinary
Form
;
and
to
ease
the
Sovereign
of
Labour
,
and
not
to
deprive
him
of
Power
.
The
Election
being
meerly
in
the
King
,
and
the
Office
Ministerial
only
.
I
will
now
set
down
some
General
Observations
The
Honour
,
Power
and
Priviledge
of
Sheriffs
.
of
the
great
Honour
,
Power
and
Priviledge
of
Sheriffs
,
and
wherein
and
by
what
Acts
he
is
restrained
.
One
calls
it
Judiciaria
dignitas
.
Fortescue
saith
,
that
Vicecomes
is
Nobilis
Officiarius
.
In
Savill's
Savil
p.
43.
Rep.
p.
43.
he
is
called
a
Royal
Officer
:
For
(
saith
the
Book
)
Charters
of
Liberties
granted
to
the
Barons
of
Cinque
Ports
and
other
Inhabitants
,
shall
discharge
them
for
Inferiour
Offices
,
as
Constable
,
&c.
but
not
of
Offices
Royal
,
as
Sheriff
.
1
Roll.
Rep.
274.
Phelp's
Case
.
The
Sheriff
takes
place
of
every
Noble-man
Takes
place
of
Noblemen
.
in
the
County
,
during
the
time
that
he
is
Sheriff
.
And
tho'
the
Sheriff
be
not
a
Justice
of
Peace
,
yet
he
is
a
Conservator
of
the
Peace
,
and
by
this
he
may
well
imprison
a
man
upon
good
Cause
.
2
Roll.
Rep.
237.
Fitzherbert
N.
B.
81.
b.
at
Common
Law
the
Sheriff
may
Commit
any
one
for
the
Breach
of
the
Peace
.
Such
Persons
as
he
shall
apprehend
upon
suspicion
of
Treason
,
or
Felony
,
upon
fresh
Suit
or
Hue
and
Cry
,
he
may
commit
to
the
Gaol
.
He
may
commit
all
Affrayers
or
Breakers
of
the
Peace
in
his
presence
.
Upon
any
Foreign
Invasion
he
may
raise
the
County
;
so
upon
Rebellions
and
Insurrections
;
and
may
command
any
Number
he
thinks
fit
to
aid
him
.
But
of
his
own
Authority
he
shall
not
Arrest
any
man
upon
suspicion
of
Felony
;
except
there
be
a
Felony
committed
in
Fact
,
and
he
himself
have
suspicion
of
him
.
By
Stat.
17
R.
2.
c.
8.
the
Sheriff
may
raise
the
Posse
Comitatus
to
suppress
Rioters
and
commit
them
to
Prison
,
13
H.
4.
c.
7.
and
if
the
Rioters
resist
,
the
Sheriff
and
his
Assistants
may
justifie
the
killing
them
.
Vide
the
Stat.
13
H.
4.
c.
7.
and
the
Stat.
of
Northampt.
2
Ed.
3.
c.
3.
for
this
purpose
,
&
13
Ed.
1.
c.
39.
Wheresoever
the
Sheriff
,
or
any
other
of
the
Kings
Officers
may
take
Posse
Comitatus
,
or
have
Authority
either
to
execute
the
Kings
Process
,
or
apprehend
Felons
,
Rioters
,
&c.
if
they
shall
find
Resistance
,
they
may
arrest
and
imprison
all
such
Offenders
.
He
hath
Custodiam
Comitatus
,
and
therefore
What
the
Sheriff
may
do
as
Conservator
Pacis
.
Tho'
not
to
act
as
Justice
of
the
Peace
for
that
year
.
for
Cause
he
may
commit
:
He
is
Conservator
Pacis
.
Stat.
1
Mar.
c.
8.
doth
not
take
away
Power
from
the
Sheriff
;
only
,
if
he
was
in
Commission
of
Peace
before
,
he
was
to
forbear
the
execution
of
his
Commission
for
the
Peace
so
long
as
he
is
Sheriff
;
but
he
is
not
to
forbear
the
execution
of
that
which
is
committed
to
him
for
the
County
.
The
Sheriff
,
if
he
see
a
person
carry
Weapons
in
the
Highway
in
terrorem
populi
,
he
may
commit
him
,
tho'
he
do
not
break
the
Peace
in
his
presence
.
The
Lord
Coke
cited
the
Mayor
of
Barstaple's
Case
,
in
Chune
and
Piott's
Case
,
2
Bulstr
.
The
Sheriff
favoured
in
the
Execution
of
his
Office
.
Now
the
Case
of
Chune
and
Piott
was
this
:
One
Clare
was
committed
to
the
Compter
of
Woodstreet
,
and
made
his
Escape
;
the
Defendant
being
one
of
the
Sheriffs
pursued
him
,
and
in
his
pursuit
met
with
the
Plaintiff
in
the
Night
time
vagrantem
,
who
pursued
him
indecently
,
and
gave
him
uncivil
words
,
&
detrusit
ad
murum
;
Justificat'
en
faux
Imprisonment
.
whereupon
he
Imprisoned
him
,
and
Justifies
in
faux
Imprisonment
.
He
doth
not
say
,
he
did
it
violenter
,
or
contra
pacem
,
or
sciens
,
knowing
him
to
be
Sheriff
:
But
per
Cur'
,
it
shall
be
intended
he
did
it
malitiosè
,
and
the
Law
implies
it
was
done
vi
&
armis
.
It
's
a
good
Justification
.
Had
the
Defendant
done
it
by
chance
and
unwillingly
,
he
might
have
pleaded
it
,
and
his
not
pleading
it
shews
it
to
be
otherwise
,
2
Bulstr.
329.
But
the
Mayor
of
Barstaple
Justified
the
committing
a
man
,
for
that
he
did
misbehave
himself
against
him
by
ill
Words
,
&c.
Had
this
been
laid
to
be
done
in
the
execution
of
his
Office
,
it
had
been
good
;
but
he
was
then
playing
at
Tables
.
Anciently
the
Bishop
,
with
the
Sheriff
,
went
Bishops
and
Sheriffs
went
Circuits
.
The
Office
of
Sheriff
entire
,
and
not
to
be
apportion'd
in
Circuit
twice
every
year
,
through
every
Hundred
within
the
County
,
2
Inst.
70.
The
King
cannot
restrain
any
part
of
the
Sheriff's
Power
,
neither
can
the
King
choose
a
Sheriff
contrary
to
the
Statute
of
Lincoln
.
The
Office
of
Sheriff
is
entire
and
cannot
be
apportioned
.
Tho'
the
King
constitute
a
Sheriff
durante
beneplacito
,
and
may
determine
it
at
Will
;
yet
he
may
not
determine
it
in
part
,
nor
abridge
him
of
any
thing
incident
to
his
Office
.
Hob.
p.
13.
2
Inst.
501.
4
Rep.
32.
Milton's
Case
.
The
Sheriff
is
an
Officer
of
that
Eminence
,
Sheriffs
favoured
in
Law
.
Confidence
and
Charge
,
that
he
ought
to
have
all
Right
pertaining
to
his
Office
,
and
ought
to
be
favoured
in
Law
before
any
Private
person
.
I
shall
give
you
some
Instances
.
4
Rep.
33.
b.
Mitton's
Case
.
Inasmuch
as
Escapes
are
so
Penal
to
Officers
,
Escape
,
not
to
be
judged
strictly
.
the
Judges
have
always
made
as
benign
Construction
as
the
Law
will
permit
in
favour
of
them
,
and
to
the
intent
that
every
one
may
●ear
his
own
burden
,
they
will
never
judge
an
Escape
by
strict
Construction
.
As
if
one
in
Execution
escape
and
fly
into
another
County
,
and
the
Sheriff
retake
him
on
Fresh
pursuit
,
it
s
no
Escape
,
if
●t
be
before
Action
brought
.
So
if
the
Sheriff
by
Habeas
Corpus
be
commanded
to
bring
the
Body
at
the
day
,
he
shall
not
be
compelled
to
take
the
most
direct
way
,
but
the
safest
.
Vide
infra
.
The
Sheriff
is
not
punished
for
executing
the
The
Sheriff
not
punishable
for
executing
erroneous
Process
.
Killing
of
the
Sheriff
in
doing
his
Duty
,
is
Murder
.
Process
of
the
Court
,
tho'
it
were
erroneous
.
Vid.
postea
.
If
any
Sheriff
,
Under-Sheriff
,
Serjeant
or
Officer
,
who
hath
execution
of
Process
,
be
slain
in
doing
his
Duty
,
its
Murder
in
him
who
kills
him
,
altho'
there
were
not
any
former
Malice
between
them
;
and
if
there
were
Error
in
awarding
of
Process
,
or
in
the
mistake
of
one
Process
for
another
;
as
a
Capias
in
Debt
against
a
Peer
;
and
an
Officer
be
slain
in
the
execution
thereof
,
the
Offender
shall
not
have
advantage
Cro.
Jac.
279.
Mackally's
Case
.
of
such
Error
,
no
more
than
a
Sheriff
who
suffers
a
Prisoner
to
escape
,
shall
take
any
advantage
of
Error
thereby
.
And
in
this
case
there
needs
not
a
Special
Indictment
to
be
drawn
;
but
a
General
Indictment
,
that
such
a
party
ex
malitiâ
suâ
praecogitata
percussit
,
&c.
for
the
Law
presumes
Malice
,
tho'
none
be
proved
;
so
it
is
if
any
shall
come
in
aid
of
them
;
and
an
Officer
,
9
Rep.
Mackally's
Case
.
if
he
be
resisted
,
is
not
bound
to
fly
to
the
Wall
,
as
other
Subjects
are
.
Several
Persons
were
informed
against
,
for
Severe
Fines
for
assaulting
the
Sheriff
.
assaulting
the
Sheriff
in
serving
Execution
,
and
fined
Sir
J.
Wingfield
the
Prisoner
at
500
l.
and
Brady
500
Marks
,
because
it
appeared
upon
the
Evidence
he
drew
his
Sword
and
wounded
the
Cro.
Car.
251.
B.
R.
Le
Roy
versus
Sir
J.
Wingfield
and
Others
.
Sheriff
,
and
by
that
means
the
Prisoner
escaped
into
Neale's
House
,
and
180
l.
against
Neale
,
because
he
kept
out
the
Sheriff
,
and
shut
the
Door
against
him
,
and
500
l.
against
Sir
T.
B.
because
he
was
the
means
of
conveying
away
the
said
Prisoner
to
Lincolns
Inn
;
and
per
Cur'
such
Fines
assessed
in
Court
by
Judgment
on
Information
,
cannot
be
afterwards
qualified
or
mitigated
.
The
Sheriffs
Bayliffs
lawfully
arrested
a
man
,
if
Assistants
to
the
Sheriff
,
or
his
Bayliffs
.
the
persons
which
stood
by
refuse
to
assist
them
,
(
in
case
of
Opposition
)
they
shall
be
fined
.
Winch.
p.
72.
Foster's
Case
.
Every
man
is
bound
by
the
Common
Law
to
assist
,
not
only
the
Sheriff
in
his
Office
,
for
the
execution
of
the
Kings
Writs
,
according
to
Law
;
but
also
his
Bayliff
that
hath
the
Sheriffs
Warrant
in
that
behalf
,
hath
the
same
Authority
which
his
2
Inst.
193.
sur
Stat.
W.
1.
c.
17.
Fine
for
Non-resistance
.
Master
hath
:
For
the
Sheriff
cannot
do
all
himself
,
and
if
they
do
it
not
,
being
required
,
they
shall
be
sined
and
imprisoned
;
but
in
the
case
of
Replevin
,
out
of
a
Castle
,
House
,
&c.
before
the
Sheriff
useth
any
Force
,
he
ought
to
demand
(
according
to
Law
)
the
Goods
to
be
delivered
,
so
as
Replevy
may
be
made
thereof
;
for
sequi
debet
potentia
mandatum
Legis
,
non
praecedere
.
Now
besides
the
Warrant
of
the
Common
Law
,
the
Sheriff
has
his
Letters
Patents
of
Assistance
,
The
Sheriffs
Letters
Patents
of
Assistance
.
Id.
ibid.
whereby
the
King
commandeth
,
that
all
Archbishops
,
Bishops
,
Dukes
,
Earls
,
Barons
,
Knights
,
Freemen
,
and
all
other
of
that
County
,
be
to
the
Sheriff
thereof
in
omnibus
quae
ad
Officium
illud
pertinent
,
intendentes
,
auxiliantes
&
respondentes
.
As
to
the
Sheriffs
power
in
breaking
up
Houses
,
Sheriffs
power
to
break
up
Houses
.
Moore
66.
vid.
infra
Tit.
Execution
.
Only
I
shall
observe
on
Process
for
the
Good
Behaviour
,
the
Sheriff
may
break
an
House
to
take
the
Party
,
as
if
the
Sheriff
have
a
Cap'
against
one
,
to
find
Surties
of
the
Good
Behaviour
.
The
Sheriff
or
his
Ministers
in
the
Execution
May
carry
Weapons
.
of
Justice
,
may
carry
a
Dag
or
Hand-gun
,
and
it
s
no
offence
against
the
Statute
.
Cro.
El.
822.
Gardne's
case
,
&
5
Rep.
71.
The
Sheriff
in
some
Cases
shall
not
be
a
Disseisor
In
what
Cases
the
Sheriffs
Officers
excused
from
doing
wrong
.
6
Rep.
52.
in
fine
Boswells
case
.
for
executing
the
Kings
Writ
,
tho'
he
doth
wrong
,
for
Officers
in
such
Cases
are
excused
by
their
Warrant
.
As
it
was
found
ex
officio
,
that
the
Church
was
full
of
B.
who
was
a
stranger
to
the
Quaere
Impedit
,
and
it
appears
no
that
he
had
better
Title
;
yet
the
Plaintiff
ought
to
have
a
Writ
to
the
Bishop
generally
.
So
it
is
of
a
Sheriff
on
Habere
fac'
seisinam
of
Land
,
for
it
cannot
come
in
Issue
between
the
Demandant
and
him
,
for
he
had
no
day
in
Court
;
and
tho'
a
third
person
had
Right
,
they
are
excused
by
their
Warrant
.
If
the
Sheriff
be
resisted
in
executing
the
Posse
Comitatus
.
3
Inst.
161.
Kings
Writs
or
Process
of
Law
,
he
may
take
the
Posse
Comitatus
;
so
he
may
to
suppress
Rioters
.
Vid.
Supra
.
As
for
other
Judicial
Office
of
the
Sheriff
,
as
Enquiry
of
Wast
,
Redissesin
,
&c.
vide
under
their
proper
Titles
.
By
the
Statute
21
Jac.
c.
13.
the
Life
1
Keb.
176.
of
the
Party
absent
,
during
whose
Life
the
Defendant
had
a
Lease
,
is
to
be
enquired
by
the
Sheriff
.
Per
Sat.
23
Eliz.
A
Recusant
Convict
shall
2
Keb.
108.
Le
Roy
&
Webb
.
after
Proclamation
at
the
Assizes
or
Gaol
Delivery
render
his
Body
to
the
Sheriff
,
before
the
next
Assizes
.
But
notwithstanding
the
Dignity
and
Favour
The
Sheriff
in
what
things
restrained
.
the
Law
casts
on
Sheriffs
,
yet
in
many
places
they
are
restained
,
and
have
limited
qualifications
,
which
would
further
contribute
to
the
explicating
the
nature
of
the
Sheriffs
Office
.
The
Sheriff
of
the
County
is
not
to
be
chosen
Not
to
be
chosen
a
Parliament
Man
.
Lit.
rep.
326
Walt.
Longs
Case
.
a
Parliament
Man
.
A.
12
Jac.
1.
Sir
George
Selby
was
made
Sheriff
of
Durham
,
and
Elected
Knight
for
Northumberland
;
it
was
resolved
in
Parliament
,
that
the
Election
was
void
.
Mr.
Walter
Longs
Case
was
warmly
argued
,
he
was
informed
against
first
,
That
he
being
made
Sheriff
of
the
County
of
W.
and
having
taken
the
Oath
to
be
dwelling
in
his
County
all
the
year
,
unless
he
had
Licence
of
the
King
,
had
committed
Perjury
,
in
as
much
as
he
was
absent
out
of
the
County
three
Months
together
.
He
said
he
was
Elected
Burgess
for
Bath
,
and
by
vertue
of
a
Writ
of
Summons
under
the
Great
Seal
,
which
he
conceived
amounted
to
a
License
.
The
Statute
is
4
H.
4.
cap.
5.
every
Sheriff
shall
dwell
in
his
proper
person
in
his
Bayliffwick
for
the
time
that
he
shall
be
Officer
;
the
words
are
Demurrant
,
not
Abiding
.
The
King
by
Will
may
Elect
one
of
the
House
to
be
Sheriff
,
for
this
is
a
Dispensation
;
but
it
appeared
Mr.
Long
sought
to
be
Elected
Parliament
Man
.
Quaere
how
it
was
resolved
in
the
Star-chamber
.
By
the
Stat.
of
23
H.
6.
no
Man
shall
serve
the
Shall
not
serve
above
one
year
.
Non
obstante
.
1
H.
7.
7
Rep.
14.
Calvins
Case
.
12
Ed.
4.
c.
1.
King
as
Sheriff
of
any
County
above
one
year
,
and
that
notwithstanding
any
Clause
of
Non
obstante
to
the
contrary
;
that
is
,
notwithstanding
the
King
should
expresly
dispense
with
that
Stat.
And
yet
't
is
agreed
,
that
against
the
express
purview
in
the
Act
,
the
King
may
by
a
Special
Non
obstante
dispense
with
that
Act
,
(
except
such
as
are
Inheritable
to
the
Office
of
Sheriff
or
other
Offices
in
London
.
)
Yet
they
may
execute
their
Office
during
Mich.
and
Hillary
Term
,
if
no
Writ
of
Discharge
come
.
Every
Sheriff
is
to
be
resident
in
his
own
person
,
within
his
County
during
the
time
he
is
Sheriff
,
(
except
he
be
otherwise
Licensed
by
the
King
.
)
p.
4
H.
4.
c.
5.
A
Sheriff
of
one
County
hath
no
Authority
,
One
Sheriff
hath
no
power
in
another
County
:
or
Power
within
another
County
;
yet
the
Sheriff
by
force
of
the
Kings
Writ
may
carry
the
Prisoner
through
several
Counties
,
or
make
fresh
persuit
into
other
Counties
,
and
the
Prisoner
shall
be
said
to
be
in
the
Custody
of
the
first
Sheriff
,
in
every
County
.
The
Sheriff
is
not
to
Let
his
County
to
Farm
Not
to
Let
his
County
to
Farm
.
per
Stat.
23
H.
6.
c.
10.
By
the
Sheriff's
Letting
his
County
to
Farm
,
is
understood
of
the
proficua
Comitatus
,
which
was
considerable
,
when
most
Law
Suits
were
transacted
in
the
Counties
,
and
in
Hundred
Courts
,
Fines
Issues
and
Amercements
being
considerable
.
And
in
the
time
of
H.
3.
the
Bayliffwick
of
one
County
was
Let
at
100
l.
per
annum
,
a
great
Sum
in
those
days
.
There
was
a
Bond
for
Rent
,
on
a
Lease
of
the
Bayliffwcik
of
the
Savoy
.
Now
the
Stat.
27
H.
8.
c.
24.
being
a
general
Statute
,
and
the
conclusion
3
Keb.
678.
Ellis
and
Nelson
.
general
contra
formam
Statuti
,
will
avoid
this
Contract
,
per
Stat.
23
H.
6.
The
Security
is
void
,
tho'
it
hath
no
express
words
to
avoid
it
;
but
per
Curiam
,
23
H.
6.
being
a
particular
Law
should
have
been
pleaded
,
and
the
Stat.
27
H.
8.
is
but
a
Relative
Statute
.
Per
Stat.
4
Ed.
3.
c.
9.
The
Nor
hundred
.
More
W.
1021.
Stockwith
and
North.
Sheriff
shall
not
Let
Hundreds
to
Farm
.
It
was
resolved
in
Stockwith
and
North's
Case
,
that
the
setting
to
Farm
Offices
was
malum
prohibitum
,
against
the
Stat.
of
4.
H.
4.
c.
5.
and
also
malum
se
.
And
therefore
,
because
the
Sheriff
of
Nottingham
took
Money
for
the
Gaolership
,
and
the
Bayliffwick
of
the
County
for
one
year
,
he
was
fined
in
the
Star
Chamber
.
The
penalty
for
offending
these
Laws
are
40
l.
Tho'
the
Sheriff
be
so
much
favoured
and
respected
Guilty
of
Homicide
if
he
put
a
Condemn'd
man
to
death
contrary
to
order
of
Law
.
in
the
Law
,
and
in
the
very
Execution
of
Criminals
;
yet
he
shall
be
Guilty
of
Homicide
,
for
not
observing
the
Order
of
Law
,
in
putting
a
Condemned
man
to
death
.
7
Rep.
13.
1
Jac.
[
](A34174-e15950-b)*
*
What
prescription
by
a
Sheriff
good
or
not
.
A
Sheriff
may
not
prescribe
,
that
he
and
all
those
who
have
been
Sheriffs
have
been
seized
of
a
certain
Gift
at
every
Turn
held
,
&c.
for
the
Sheriff
is
put
in
by
the
King
every
year
,
and
removeable
at
pleasure
.
But
in
21
H.
7.
17.
b.
an
Under-Sheriff
prescribes
,
that
he
and
all
Under-Sheriffs
of
the
County
,
have
used
to
have
so
42
Ed.
3.
5.
21
H.
7.
17.
6.
much
for
Bar
Fees
,
and
admitted
good
.
CHAP.
II.
What
the
Sheriff
must
do
at
the
Entrance
into
his
Office
.
The
Form
of
the
Writ
of
Discharge
of
the
Old
Sheriff
.
The
Form
of
his
Oath
,
how
and
before
whom
to
be
taken
,
and
the
Return
.
The
Cities
and
Towns
in
England
which
have
Sheriffs
,
and
how
many
each
.
Of
delivery
of
Writs
and
Prisoners
by
the
Old
Sheriff
to
the
New
.
Till
what
time
the
Old
Sheriff
,
or
his
Officers
may
Act.
What
's
to
be
done
in
the
Case
of
the
Kings
Death
.
What
shall
be
said
a
good
delivery
of
Prisoners
,
and
how
to
be
made
.
The
Form
of
the
Indenture
setting
over
the
Prisoners
,
and
the
Writs
.
The
Form
of
the
Return
of
those
that
have
been
Executed
by
the
Old
Sheriff
.
What
Acts
may
or
must
the
Old
Sheriff
do
after
his
Discharge
,
and
what
remedy
against
him
for
a
Misdemeanor
in
his
Office
.
When
and
where
the
New
Sheriff
must
Read
his
Patent
,
and
make
his
Deputies
in
the
County
and
Courts
above
.
How
and
in
what
Cases
his
Office
is
determined
before
the
year
be
out
.
HE
must
go
into
the
Remembrancer's
Office
in
the
Exchequer
,
to
Enter
the
Recogniance
with
Sureties
,
(
or
some
for
him
)
with
Condition
for
payment
of
his
Proffers
or
Accompts
which
is
twice
in
the
year
,
(
viz.
)
at
or
before
Mense
Pasch'
&
Mense
Michaelis
then
next
following
.
Then
his
Attorney
or
some
other
will
write
him
a
Note
,
signifying
that
he
is
Sheriff
of
such
a
County
,
and
hath
entred
into
Recognizance
;
the
which
Note
the
Sheriff
must
deliver
to
one
of
the
six
Clarks
in
Chancery
to
make
his
Patent
by
,
with
a
Writ
of
Assistance
,
and
a
Writ
of
Discharge
to
be
delivered
to
his
Predecessor
,
who
should
be
Delivered
with
all
speed
to
his
Predecessor
,
for
the
benefit
of
his
Under-Sheriff
;
because
till
it
be
livered
,
the
Precedent
Sheriff
may
do
Execution
of
all
Process
.
As
to
the
Forms
of
these
two
Patents
,
(
viz.
)
the
Patent
of
his
Office
,
and
the
Patent
of
Asstance
,
Vid.
Dalton
.
But
the
Form
of
the
Writ
of
Discharge
directed
to
the
Old
Sheriff
is
this
.
WIllielmus
,
&c.
dilect'
sib.
J.
S.
Armig
'
nuper
Vic'
Warr'
salutem
.
Cum
concesserimus
Dilecto
,
&c.
nobis
A.
B.
Armig
'
Comitatum
nostrum
praedict'
custodiend'
,
quamdiu
nobis
placuerit
,
prout
in
Literis
nostris
patentibus
ei
inde
concess'
plenius
continetur
,
Tibi
praecipi
mus
qd'
eid
.
A.
B.
Com'nostr'
praed'
cum
pertinentiis
una
cum
Rotulis
Brevib'
Memorand'
&
omnibus
aliis
ad
officium
Vicecom'
praed'
spectan'
quae
in
custodia
tua
existunt
per
Indenturas
inde
inter
te
&
prefat
'
A.
B.
debite
conficiend'
liberes
Teste
meipso
apud
'
West'
quinto
die
,
&c.
In
the
next
place
,
he
may
go
to
a
Master
of
the
Chancery
,
or
to
one
of
the
Judges
of
Assize
of
that
County
whereof
he
is
Sheriff
,
and
take
the
Oath
of
Supremacy
by
the
Stat.
of
1
El.
c.
1.
5.
Eliz.
c.
1.
And
also
an
Oath
for
the
due
Execution
of
his
Office
,
which
is
as
follows
.
The
Sheriffs
Oath
.
YE
shall
Swear
,
that
you
shall
serve
the
King
well
and
truly
in
the
Office
of
Sheriff
of
A.
and
do
the
Kings
Profit
in
all
that
belongs
to
you
to
do
by
way
of
your
Office
,
as
far
forth
as
you
can
or
may
.
Ye
shall
truly
keep
the
Kings
Rights
,
and
all
that
belongeth
to
the
Crown
.
Ye
shall
not
assent
to
Decrease
,
to
Lessenings
or
to
Concealments
of
the
Kings
Right
,
or
of
his
Franchises
;
and
whensoever
ye
shall
have
knowledge
,
that
the
Kings
Rights
,
or
the
Rights
of
his
Crown
be
concealed
or
withdrawn
,
be
it
in
Land
,
Rent
,
Franchise
or
Suits
,
or
any
other
things
,
Ye
shall
do
your
true
Power
to
make
them
be
restored
to
the
King
again
;
and
if
ye
may
not
do
it
,
ye
shall
certifie
the
King
,
or
some
of
his
Counsel
thereof
,
such
as
ye
hold
for
certain
will
say
it
to
the
King
.
Ye
shall
not
Respite
the
Kings
Debts
for
any
Gifts
or
Favour
,
where
you
may
raise
them
without
great
grievance
of
the
Debtors
.
Ye
shall
truly
and
righteously
treat
the
People
of
your
Sheriffwick
,
and
do
right
as
well
to
Poor
as
to
Rich
,
in
all
that
belongeth
to
your
Office
.
Ye
shall
do
no
wrong
to
any
Man
for
any
Gift
or
Behest
,
or
Promise
of
Goods
for
favour
,
nor
hate
.
Ye
shall
disturb
no
Mans
Right
.
Ye
shall
truly
acquit
at
the
Exchequer
,
all
those
of
whom
ye
shall
any
thing
receive
of
the
Kings
Debts
.
Ye
shall
nothing
take
whereby
the
King
may
lose
,
or
whereby
that
Right
may
be
disturbed
,
letted
,
or
the
Kings
Debt
delayed
.
Ye
shall
truly
return
,
and
truly
serve
all
the
Kings
Writs
,
as
far
forth
as
shall
be
within
your
cunning
.
Ye
shall
not
have
to
be
your
Vnder
Sheriff
,
or
any
of
the
Sheriffs
Clarks
,
of
the
last
year
past
.
Ye
shall
take
no
Bayliff
into
your
Service
,
but
such
as
ye
shall
answer
for
.
Ye
shall
make
each
of
your
Bayliffs
to
make
such
Oath
,
as
ye
make
your self
in
that
,
that
belongeth
to
their
Occupation
.
Ye
shall
receive
no
Writ
by
any
of
you
or
yours
unsealed
,
or
any
sealed
under
any
Seal
of
any
Justice
save
of
Justice
in
Eyre
,
or
Justice
assigned
in
the
same
Shire
where
ye
be
Sheriff
in
,
or
other
Justice
having
Power
,
or
Authority
to
make
any
Writs
unto
you
by
the
Law
of
the
Land
,
or
any
Justice
of
Newgate
.
Ye
shall
make
your
Bayliffs
of
the
true
and
sufficient
Men
in
the
County
.
Ye
shall
be
dwelling
in
your
proper
person
within
your
Baliffwick
,
for
the
time
ye
shall
be
in
the
same
Office
,
except
ye
be
otherwise
Licensed
of
the
King
.
Ye
shall
not
Let
your
Sheriffwick
,
nor
any
Bayliffwick
thereof
to
Farm
to
any
Man
.
Ye
shall
truly
set
and
return
reasonable
and
due
Issues
of
them
that
be
within
your
Bayliffwick
after
their
Estate
and
their
Honour
;
and
make
your
Pannells
your self
of
such
persons
,
as
be
most
next
,
most
sufficient
,
and
not
suspected
or
procured
,
as
it
is
ordained
by
the
Statutes
,
and
over
this
in
eschewing
and
restrainder
of
the
Mans-slaughters
,
Roberies
,
and
other
manifold
grievous
Offences
,
that
have
been
done
dayly
,
namely
of
such
as
name
themselves
Souldiers
,
and
by
other
Vagrants
,
the
which
continually
increase
in
number
,
and
multiply
,
so
that
the
Kings
true
Subjects
may
not
be
safe
;
yea
,
Ride
,
nor
go
to
do
such
things
as
they
have
to
do
,
to
their
intolerable
hurt
and
hindrance
:
Ye
shall
truly
and
effectually
,
with
all
diligence
possible
to
your
Power
execute
the
Statutes
,
as
the
Statutes
of
Winchester
,
and
of
Vagabonds
.
These
things
all
ye
shall
truly
keep
,
as
God
ye
help
.
Note
,
That
there
was
an
Addition
in
this
Crok
.
Car.
p.
25
,
26.
Sir
Ed.
Coke's
Case
.
Oath
by
the
Statute
of
5
R.
2.
and
2
H.
4.
c.
15.
viz.
)
That
he
should
seek
to
repress
all
Errors
and
Heresies
commonly
called
Lollards
,
and
should
be
assistant
to
the
Commissaries
,
and
Ordinaries
in
Church
matters
.
And
this
was
objected
by
Sir
Ed.
Coke
,
after
he
had
been
Lord
Chief
Justice
of
both
Benches
,
and
made
Sheriff
of
the
County
of
Buckingham
,
when
he
had
a
dedimus
potestatem
annexed
to
a
Schedule
,
in
the
first
year
of
Charles
the
first
:
And
ever
since
they
have
been
left
out
,
because
Lollardism
then
was
the
true
Antipapal
Religion
as
is
now
professed
.
And
he
made
other
Objections
,
one
whereof
was
,
that
some
parts
of
the
Oath
are
not
by
any
Statute
,
and
its
a
Maxim
,
That
none
but
the
Parliament
can
appoint
None
but
the
Parliament
can
appoint
an
Oath
.
an
Oath
.
But
it
was
resolved
by
the
Judges
,
that
this
Oath
being
appointed
,
and
continued
divers
years
by
direction
of
the
Statute
,
altho'
without
the
express
Authority
of
any
Statute
Law
;
yet
may
well
be
continued
for
the
publick
benefit
.
Note
,
As
to
the
Statute
of
Winchester
,
the
Justices
of
Peace
have
eased
the
Sheriff
of
much
trouble
.
And
by
the
Statute
of
39
Eliz.
cap.
4.
all
former
Statues
for
the
punishment
of
Vagabonds
are
Repealed
The
Oath
of
the
Sheriff
of
Oxford
and
Berks
,
and
also
of
Cambridge
and
Huntington
.
YOV
shall
Swear
,
That
well
and
truly
ye
shall
Serve
the
King
in
the
Office
of
Sheriff
of
Oxford
and
Berks.
And
the
Kings
Profit
,
&c.
ut
supra
usque
So
help
ye
God
.
And
also
ye
shall
Swear
,
That
the
Masters
and
Scholars
of
the
Vniversity
of
Oxford
,
and
their
Servants
from
injuries
and
violences
Ye
shall
keep
and
defend
by
all
your
Strength
and
Power
;
and
the
Peace
in
the
said
Vniversity
as
much
as
in
you
is
,
ye
shall
keep
.
And
that
you
shall
give
your
Councel
and
Help
to
the
Chancellor
,
and
Scholars
of
the
same
Vniversity
,
for
to
punish
the
disturbers
and
breakers
of
the
Peace
there
,
after
the
Priviledges
and
Statutes
of
the
said
Vniversity
,
at
all
times
when
it
shall
be
needful
.
And
also
,
ye
shall
put
your
help
withal
your
Strength
to
defend
the
Priviledges
,
Liberties
and
Customs
of
the
said
Vniversity
.
And
that
ye
shall
receive
all
such
Oaths
of
your
Vnder-Sheriffs
,
and
other
your
said
Ministers
of
your
said
County
of
Oxford
,
as
soon
and
anon
as
ye
shall
be
at
the
the
Castle
,
or
at
the
Town
of
Oxford
,
in
presence
of
any
that
shall
be
thereto
deputed
by
the
said
Vniversity
;
to
the
which
things
the
King
will
,
that
your
said
Ministers
be
by
you
acted
and
compelled
.
As
God
you
help
.
The
like
Addition
to
the
Oath
of
the
Sheriff
of
Cambridge
and
Huntington
,
mutatis
mutandis
.
If
the
New
Sheriff
be
not
in
London
,
he
may
take
his
Oath
by
dedimus
potestatem
,
directed
to
any
two
Justices
of
Peace
of
the
same
County
,
one
to
be
of
the
Quorum
,
or
to
any
other
Commissioners
.
The
Cities
and
Towns
in
England
,
which
have
Sheriffs
are
as
follow
.
-
The
City
of
-
Bristol
2
-
Coventry
2
-
Canterbury
1
-
York
2
-
Exon
2
-
Glocester
2
-
Leichfeild
1
-
Lincoln
2
-
London
2
-
Norwich
2
-
Worcester
1
-
The
Town
of
-
Kingston
upon
Hull
1
-
Southampton
1
-
Nottingham
2
-
Poole
1
-
Newcasle
on
Tine
1
The
Return
of
the
Dedimus
by
the
Commissioners
is
thus
.
VIrtute
istius
Brevis
nobis
direct'
(
tali
die
&
Anno
)
recepimus
Sacrament'
infranominat
'
A.
B.
Vicecom'
Warr'
tam
de
offic'
Vicecom'
in
dict'
Com'
Warr'
bene
&
fidelit'
faciend'
juxt
'
formam
cujusdam
Schedulae
praesentibus
ann'
quam
Sacramentum
specificat'
in
Actu
Parliament'
Anno
Regni
Dominae
Elizabethae
nuper
Reginae
Angliae
&c.
primo
fact'
secundum
tenorem
Brevis
&
Schedulae
Brevis
proed
'
similit'
annex'
prout
Breve
istud
in
se
exigit
&
requirit
.
The
Sheriff
must
take
the
Oath
and
Sacrament
,
as
is
now
usual
for
all
Officers
and
Ministers
of
Justice
.
Stat.
Car.
2.
and
the
Oaths
appointed
by
the
Statute
of
William
and
Mary
.
In
the
general
Case
of
the
Sheriffs
of
England
,
when
the
King
makes
a
new
Patent
,
tho'
the
Ancient
Sheriff
had
his
Office
but
durante
●eneplacito
,
presently
a
Writ
of
de
Comitatu
Commisso
Writ
of
Discharge
.
(
which
is
commonly
called
a
Writ
of
Discharge
,
or
a
Writ
de
exoneratione
officij
,
)
shall
issue
;
the
form
Vide
supra
.
And
then
another
Writ
is
directed
to
the
Ancient
Sheriff
for
the
delivery
of
his
County
and
Rolls
,
Writs
,
&c.
to
the
New
Sheriff
.
These
were
two
Writs
formerly
,
but
now
they
are
included
in
one
.
Vide
supra
.
The
next
thing
is
,
the
New
Sheriff
at
or
before
his
first
County
Court
,
must
take
over
from
his
Predecessor
all
his
Prisoners
and
Writs
precisely
by
view
,
and
by
Indenture
to
be
made
between
them
,
wherein
all
the
Causes
which
he
has
against
every
Prisoner
,
must
be
set
forth
and
delivered
,
or
else
the
New
Sheriff
is
not
charged
with
them
,
as
in
Westbies
Case
.
Now
before
I
say
more
as
to
the
Delivery
,
I
I
shall
shew
you
what
Actions
of
the
Old
Sheriff
,
or
his
Officers
shall
be
good
,
and
to
what
time
.
Now
the
Old
Sheriff
of
a
County
is
Sheriff
,
until
the
New
be
Sworn
,
altho'
he
be
Chosen
;
for
it
is
the
taking
of
his
Oath
that
doth
compleat
Till
what
time
the
old
Sheriff
,
or
the
new
Sheriff
may
Act.
Crok
El.
12
Fitz
Case
.
More
186.
More
364.
St.
John's
Case
.
Cro.
El.
440.
Boucher
and
Wiseman
.
him
in
his
Office
.
And
the
Arrest
is
good
by
the
Old
Sheriff
,
till
a
new
Patent
be
shewed
to
him
,
or
other
sufficient
notice
,
Cro.
El.
Fitzs
Case
.
The
Acts
of
the
Old
Sheriff
are
good
,
till
a
Writ
of
Discharge
received
,
More
186.
And
a
Bayliff
Errant
may
Execute
a
Warrant
of
an
Old
Sheriff
made
before
a
Writ
of
Discharge
;
altho'
a
New
Sheriff
be
Chosen
,
More
364.
And
therefore
in
Cro.
El.
440.
Action
on
the
Case
was
brought
against
the
Sheriff
,
and
the
Plaintiff
declared
,
whereas
he
had
recovered
an
100
l.
and
had
a
Fieri
facias
,
and
Defendant
by
vertue
thereof
levied
28
l.
and
had
not
Retorned
the
Writ
,
nor
paid
the
Money
to
the
Plaintiff
.
On
Not
guilty
pleaded
,
in
Evidence
it
was
proved
,
that
the
Writ
was
delivered
to
C.
the
Defendants
Under-Sheriff
,
9
No.
34.
El.
and
the
same
day
he
made
Execution
;
and
he
proved
,
that
the
same
day
a
Writ
of
Discharge
was
delivered
to
him
,
6
No.
35
El.
but
he
did
not
prove
he
had
notice
of
this
Writ
of
Discharge
,
before
the
Execution
served
,
Per
Cur
'
.
he
was
yet
Sheriff
,
and
Chargable
to
the
Plaintiffs
Action
.
The
Ancient
Sheriffs
ought
to
give
notice
of
all
Executions
,
against
any
in
their
Custody
to
the
New
Sheriff
,
altho'
the
Executions
are
of
Record
;
or
otherwise
,
the
New
Sheriff
shall
not
be
chargable
with
them
.
But
if
the
Old
Sheriff
dye
,
the
New
Sheriff
at
his
Peril
,
shall
take
Notice
of
Executions
to
the
new
Sheriff
.
3
Rep.
Westbies
Case
.
notice
of
all
Executions
,
which
are
against
any
that
he
finds
in
the
Gaol
;
and
this
is
of
necessity
,
for
there
is
none
to
deliver
over
the
Prisoners
to
him
:
And
in
such
case
the
New
Sheriff
is
to
take
notice
of
all
the
Writs
.
Dalt
.
17.
Moore
688.
Pop.
85.
Mesme
Case
.
The
Delivery
over
of
the
Prisoners
must
be
by
Indenture
,
and
every
several
Execution
must
Delivery
of
Prisoners
3
Rep.
Westbi●
Case
.
be
mentioned
that
is
against
any
one
.
And
therefore
in
the
great
Case
to
this
purpose
,
viz.
Westbies
Case
,
The
Sheriff
of
London
by
Indenture
Deliver
over
J.
S.
(
who
was
in
Execution
at
the
Suit
of
A.
and
B.
severally
,
)
and
only
mentions
the
Execution
against
A.
and
J.
S.
Escapes
,
B.
brought
Debt
against
the
Old
Sheriffs
,
and
adjudged
that
the
Action
well
lies
;
for
he
cannot
be
in
Custody
of
the
New
Sheriff
for
this
Execution
,
because
they
were
not
charged
with
this
Execution
,
and
the
fault
was
in
the
Old
Sheriffs
,
in
omitting
it
on
their
Indenture
;
and
the
Escape
commenceth
e●
Instanti
that
the
Ancient
Sheriffs
deliver
their
Prisoner
to
the
New
,
for
then
they
cease
to
have
the
Custody
of
him
,
and
tho'
he
remains
in
the
Walls
of
the
Gates
,
't
is
an
Escape
in
Law
.
And
until
the
Prisoners
are
delivered
to
the
New
Sheriff
,
they
remain
in
the
Custody
of
the
Ancient
Sheriff
,
notwithstanding
the
New
Patent
,
the
Writ
of
Discharge
,
and
the
Writ
of
Delivery
.
As
to
the
Prisoners
in
Execution
,
in
case
of
the
death
of
the
Sheriff
.
Vid.
infra
tit
.
Execution
.
Now
by
the
Death
of
the
King
the
Sheriffs
What
is
to
be
done
in
case
of
the
Kings
death
.
Dalt
.
17.
Office
ceaseth
,
and
therefore
in
the
next
King's
time
,
a
new
Patent
is
immediately
sued
out
;
and
if
a
Prisoner
escape
between
the
Death
of
the
King
and
the
new
Patent
,
the
Sheriff
shall
be
charged
,
for
he
ought
to
have
made
his
Gaol
safe
.
Vide
supra
,
Westbies
Case
.
In
Smallman
and
Lanes
Case
,
It
was
the
Opinion
What
shall
be
said
a
good
delivery
,
and
how
to
be
made
.
2
Leon
54.
Smallman
and
Lane
.
of
all
the
Justices
,
That
by
the
Law
the
Old
Sheriff
ought
to
deliver
the
Body
of
him
,
who
is
in
his
Custody
,
by
view
to
the
new
Sheriff
,
and
such
Prisoners
ought
to
be
brought
to
him
to
view
;
and
from
that
time
,
the
Law
shall
judge
the
Prisoners
in
the
Possession
of
the
new
Sheriff
,
and
not
before
.
D.
Sheriff
of
Warwick
had
one
in
Execution
whom
he
kept
in
a
private
Prison
by
himself
,
for
all
his
Executions
in
the
Town
of
Warwick
;
and
when
he
was
discharged
of
his
Office
,
and
a
New
Sheriff
made
,
D.
said
to
the
New
Sheriff
,
that
he
had
such
an
one
in
Execution
in
his
Custody
,
and
offered
to
the
said
Sheriff
to
put
him
in
the
Indenture
amongst
his
other
Prisoners
The
New
Sheriff
not
bound
to
receive
Prisoners
from
the
Old
Sheriff
,
but
at
the
Gaol
;
yet
if
the
other
will
receive
them
out
of
the
Gaol
,
the
old
one
is
discharged
.
Dabridgcourts
Case
,
largely
cited
in
Wes●b●es
Case
,
Pop.
85.
delivered
to
the
New
Sheriff
;
but
the
new
Sheriff
refused
to
receive
him
,
unless
D.
would
deliver
him
into
the
Common
Gaol
of
the
County
,
which
was
in
the
Town
of
Warwick
,
and
then
the
Prisoner
escaped
.
D.
was
charged
with
this
Escape
,
for
the
New
Sheriff
is
not
compellable
to
take
the
Prisoners
of
the
delivery
Crompt
.
204.
of
the
Old
Sheriff
,
but
in
the
Common
Gaol
of
the
County
.
And
if
the
Sheriff
dies
,
the
Party
shall
be
rather
at
a
prejudice
,
than
the
New
Sheriff
without
cause
charged
with
him
:
And
in
such
a
Case
,
the
Party
who
sued
Execution
may
help
himself
,
(
to
wit
)
by
a
remanding
of
the
Body
,
by
a
Corpus
cum
causa
,
whereby
he
may
be
brought
to
be
duly
in
Execution
,
and
this
under
a
due
Officer
.
There
was
an
Habeas
Corpus
ad
recipiend'
,
&c.
How
Prisoners
shall
be
turned
over
by
Indenture
.
for
W.
W.
to
H.
Sheriff
of
Glouc
'
and
he
moved
the
Court
for
their
Advice
,
because
W.
was
in
Execution
when
B.
was
Sheriff
,
and
was
left
in
the
Gaol
when
C.
was
Sheriff
;
but
he
was
not
turned
over
by
Indenture
to
C.
not
to
H.
but
was
yet
in
the
Gaol
,
and
had
been
charged
with
a
new
Execution
,
which
they
were
ready
to
Retorn
,
but
pray
that
he
shall
not
be
inforced
to
Return
the
other
Execution
;
because
he
was
not
in
Custody
to
him
for
this
.
Per
Cur
'
,
He
shall
not
If
a
Prisoner
is
not
turned
over
to
the
next
Sheriff
and
yet
remains
in
the
Gaol
,
he
is
Prisoner
of
the
ancient
Sheriff
,
and
may
be
turned
over
.
be
compelled
to
make
other
Retorn
,
but
that
for
the
first
Execution
,
he
shall
yet
remain
in
the
Custody
of
B.
the
ancient
Sheriff
,
tho'
his
Body
be
in
the
Custody
of
the
New
,
because
he
was
not
turned
over
by
Indenture
;
and
the
difference
between
this
and
Westby's
Case
is
,
that
there
the
Prisoner
was
turned
over
for
one
Debt
,
and
not
for
the
other
,
and
therefore
an
Escape
for
that
.
And
per
Cur'
,
B.
the
ancient
Sheriff
may
turn
him
over
by
Indenture
to
H.
the
present
Sheriff
(
for
it
ought
not
to
be
to
C.
for
he
never
was
in
his
Custody
)
and
then
he
will
make
Retorn
of
all
the
Executions
.
Siderfin
p.
335.
Hanmer
and
Wicomer
.
The
Old
Sheriff
may
make
Indenture
to
one
who
is
Sheriff
several
years
after
.
Vide
2
Keb.
224.
Note
,
It
was
said
by
Hobart
,
Winch
51.
in
Empson
and
Bathurst's
Case
.
If
the
Sheriff
make
an
Extent
,
and
before
a
Liberate
a
new
Sheriff
is
chosen
,
in
this
case
the
new
Sheriff
shall
have
the
Fees
appointed
by
the
Statute
.
Upon
Delivery
of
the
old
Sheriff
to
the
new
Sheriff
,
and
Escape
thereupon
,
Vide
tit
.
Declaration
in
Escape
.
The
Form
of
an
Indenture
for
setting
over
Prisoners
and
Writs
between
the
Old
and
New
Sheriff
.
THis
Indenture
made
,
&c.
Between
A.
B.
Esq
;
late
Sheriff
of
the
County
of
Warr'
of
the
one
part
,
and
C.
D.
Knight
,
now
Sheriff
of
the
said
County
,
of
the
other
part
,
Witnesseth
,
That
the
said
A.
B.
by
virtue
of
his
Majesties
Writ
of
Discharge
(
of
his
late
Office
)
to
him
directed
,
hath
delivered
and
set
over
unto
the
said
C.
D.
these
Writs
following
,
(
That
is
to
say
)
a
Capias
against
W.
H.
Ret'
Octab'
Hill.
ad
sect.
Johannis
Smith
,
&c.
together
with
the
Bodies
of
J.
N.
in
Execution
at
the
Suit
of
G.
H.
for
a
Debt
of
22
l.
and
J.
H.
at
the
Suit
of
C.
D.
in
Execution
for
10
l.
and
R.
G.
in
Execution
as
well
at
the
Suit
of
O.
D.
for
a
Debt
of
100
l.
as
also
at
the
Suit
of
N.
W.
for
a
Debt
of
40
l.
in
,
&c.
In
witness
,
&c.
All
the
Writs
which
are
set
over
in
the
Indenture
between
the
Sheriffs
,
if
they
have
been
executed
by
the
Old
Sheriff
,
then
they
must
be
Retorned
by
him
,
or
in
his
Name
,
and
Indorsed
under
by
the
New
Sheriff
thus
:
Breve
prout
Indorsat'
mihi
deliberat'
fuit
per
A.
P
▪
Armig
'
,
Vic'
,
prox'
praedecessor'
meum
in
exitu
ab
Officio
suo
.
Per
C.
D.
M●
'
,
Vicecom
'
What
Acts
may
or
must
the
Old
Sheriff
do
after
he
is
discharged
,
and
what
remdy
against
him
for
a
Misdemeanor
in
his
Office
.
Process
in
some
Cases
may
be
to
the
Old
In
what
case
Process
shall
be
to
the
Old
Sheriff
.
In
case
of
Retorn
of
Cepi
corpus
.
Sheriff
,
to
bring
in
the
Body
of
a
Prisoner
;
and
that
is
,
where
before
he
hath
made
a
Retorn
of
Cepi
corpus
&
parat'
habeo
,
and
afterwards
he
is
removed
and
a
New
Sheriff
made
;
on
Non-appearance
of
the
Prisoner
Process
shall
go
to
the
Old
Sheriff
,
as
Distringas
,
1
Bulstr
.
82.
Egerton
and
Morgan
.
The
difference
is
,
if
the
Sheriff
at
the
day
Retorn
Cepi
corpus
and
have
not
the
Body
ready
,
he
shall
be
amerced
,
and
a
Distringas
shall
be
awarded
to
the
Coroners
.
But
if
the
old
Sheriff
at
the
day
Retorn
Cepi
corpus
,
and
before
the
day
of
the
Retorn
he
is
removed
,
and
a
new
one
is
made
,
the
Distringas
here
shall
be
awarded
to
the
new
Sheriff
,
if
it
appear
on
the
Record
that
he
has
taken
the
Body
.
A
Sheriff
on
a
Fieri
fac
'
seised
Goods
in
his
hands
to
the
value
of
the
Debt
,
and
payed
part
of
the
Debt
,
and
the
Goods
not
being
sold
nor
the
Writ
Retorned
,
the
Sheriff
was
discharged
,
and
afterwards
sold
the
residue
of
the
Goods
Sale
of
Goods
after
Discharge
.
without
any
Vendition'
exponas
.
And
per
Cur
'
,
the
sale
is
good
;
for
the
Writ
of
Fieri
fac
'
gave
Authority
to
him
to
sell
without
any
other
Writ
,
2
Cro.
73.
Ayer
and
Aden
.
Therefore
Mo.
757.
the
same
Case
is
Misreported
,
which
saith
,
If
the
Sheriff
takes
Goods
by
Fieri
fac
'
and
then
is
discharged
;
he
may
not
sell
them
,
but
ought
to
deliver
them
to
the
new
Sheriff
,
and
Return
quod
non
invenit
emptores
.
And
Yelverton
in
the
same
Case
agreed
with
Crook
on
Fieri
fac'
,
sed
non
inveni
emptores
,
a
Distringas
to
sell
shall
go
to
the
old
Sheriff
,
and
not
to
deliver
the
Goods
to
the
new
one
,
Mo.
757.
Yelv.
44.
Cro.
Jac.
73.
Aden
and
Ayre
.
2
Keb.
821.
Mildmay
and
Smith
.
If
Money
be
paid
to
the
old
Sheriff
,
and
he
is
discharged
before
the
Retorn
of
the
Writ
,
the
Party
pays
the
Money
to
the
Old
Sheriff
,
he
shall
not
pay
it
again
.
party
shall
not
be
compelled
to
pay
it
again
;
and
the
Plaintiff
may
have
his
remedy
against
the
ancient
Sheriff
,
if
he
will
,
Cro.
El.
209.
Rook
and
Wilmott
.
The
old
Sheriff
returned
the
Proclamation
upon
an
Exigent
,
after
that
he
was
discharged
of
his
Office
;
and
by
the
Judgment
of
the
Court
the
Outlawry
was
void
,
and
the
party
was
discharged
,
Dyer
41.
Note
this
for
a
Rule
,
That
that
which
comes
Regula
.
Pleading
.
after
the
Nuper
is
not
traversable
,
unless
the
party
be
charged
by
reason
of
his
Office
,
as
if
he
be
called
in
pleading
Nuper
Vicecomes
,
nuper
Escheator
,
&c.
38
H.
6.
18.
If
Attachment
may
be
granted
against
a
Sheriff
,
out
of
his
Office
,
not
to
be
fined
for
a
Contempt
during
his
Office
.
Sheriff
for
Contempt
,
after
he
is
removed
out
of
his
Office
.
The
Justices
said
,
they
could
not
do
it
;
for
now
he
is
no
Officer
and
cannot
now
be
fined
,
and
without
Fine
they
do
not
use
to
Imprison
,
2
Brownl.
144.
So
Stiles
:
A
Sheriff
out
of
his
Office
cannot
be
fined
by
the
Court
;
but
a
Tipstaff
may
be
sent
for
,
to
bring
him
in
to
answer
the
Misdemeanor
committed
by
him
when
he
was
in
his
Office
,
Pract.
Reg.
304.
p.
18.
Or
a
Distringas
nuper
Vicecomiti
may
Issue
out
against
him
,
2
Sand.
88.
The
Form
of
Pleading
,
Removal
of
one
Sheriff
and
the
Election
of
another
,
vide
2
Sand.
88.
The
new
High-Sheriff
at
the
first
County-Court
,
next
after
his
Election
and
the
discharge
of
the
old
Sheriff
,
must
read
his
Patent
and
Writ
The
Sheriffs
Letters
Patents
,
when
and
where
to
be
read
.
of
Assistance
,
and
nominate
his
Under-Sheriff
,
and
depute
and
proclaim
four
Deputies
to
make
Replevins
in
the
Sheriffs
name
,
who
ought
not
to
dwell
above
twelve
miles
distant
one
from
the
other
,
in
every
quarter
of
the
County
one
,
and
to
make
deliverance
of
Distresses
,
when
need
shall
require
;
per
Stat.
1
&
2
Ph.
&
Mar.
c.
12.
The
new
Sheriff
,
before
he
shall
Return
any
Writs
into
the
Chancery
,
Kings-Bench
,
Common
Pleas
His
Deputies
.
or
Exchequer
,
ought
to
make
an
Attorney
or
Deputy
on
Record
in
every
of
these
Courts
,
there
to
receive
all
manner
of
Writs
and
Warrants
as
shall
be
directed
to
the
Sheriffs
respectively
,
and
this
upon
pain
of
40
l.
and
that
per
Stat.
23
H.
6.
c.
10.
And
such
Deputies
are
to
be
made
by
Warrant
of
Attorney
from
the
High-sheriff
.
The
like
Law
is
of
Sheriffs
of
Wales
,
and
Lancaster
,
and
Chester
,
and
all
Writs
of
Proclamation
shall
be
delivered
to
every
such
Deputy
.
The
Bishop
of
Durham
,
and
(
during
the
Vacancy
)
the
Chancellor
of
Durham
,
shall
likewise
have
a
Deputy
to
receive
all
Writs
of
Proclamation
.
Vid.
plus
of
Deputies
infra
.
How
the
Sheriffs
Office
may
be
determined
,
or
not
,
before
the
year
be
out
.
The
King
may
determine
his
Office
when
he
pleaseth
,
tho'
he
cannot
(
during
the
Continuance
of
his
Office
)
abridge
his
Power
.
The
Office
of
Sheriff
determines
by
the
death
2
Siderfin
,
p.
49.
Cro.
El.
12.
Lord
Mordants
Case
.
of
the
King
,
vid.
supra
.
The
Sheriff
being
made
a
Baron
of
Parliament
,
or
becoming
a
Baron
by
discent
,
this
doth
not
determine
his
Office
.
By
the
Death
or
Resignation
of
the
King
,
the
Authority
of
the
Sheriffs
,
and
all
his
Officers
,
doth
determine
;
therefore
it
is
used
presently
,
in
the
next
Kings
time
,
to
sue
out
new
Patents
of
his
Office
,
and
of
Assistance
.
CHAP.
III.
Of
Under-sheriffs
,
&c.
His
Nature
and
Office
,
and
Oath
.
In
what
cases
the
High-sheriff
must
execute
the
Office
in
person
:
He
cannot
abrige
the
Under-sheriffs
Power
.
Of
the
Sheriffs
Deputies
in
the
County
,
and
in
the
Courts
above
.
Pleadings
by
the
Deputies
,
and
of
Rescues
from
him
.
What
Bonds
and
Covenants
between
the
High-sheriff
and
Under-sheriff
are
good
or
not
,
and
the
pleadings
to
such
Bonds
.
What
acts
or
defaults
of
the
Under-sheriff
,
Bayliffs
,
Gaolers
,
the
High-sheriff
shall
be
answerable
for
,
or
not
:
And
what
Actions
shall
be
brought
against
the
High-sheriff
,
Under-sheriffs
and
Gaolers
.
Cases
and
Resolutions
about
the
Rule
Respondeat
Superior
.
Where
the
Lords
of
a
Franchise
shall
be
answerable
.
Of
Trial
by
the
Sheriffs
Certificate
or
by
the
Record
.
WE
have
seen
before
how
that
an
Earl
had
the
Jurisdiction
of
the
Counties
,
and
their
Commission
ran
thus
,
Commisimus
vobis
custodiam
Comitatus
nostri
ad
voluntatem
,
and
the
Sheriff
comes
in
his
place
;
and
all
Sheriffs
likewise
have
their
Commissions
ad
voluntatem
nostram
;
and
tho'
Deputy
.
3
Bulstr.
77
,
78.
Phelps
and
Winchcomb
.
there
is
no
mention
in
his
Patent
of
any
Deputy
to
be
made
by
him
,
yet
he
makes
one
.
And
as
in
the
first
Goverment
the
Earl
made
his
Deputy
,
so
the
Sheriff
made
his
Deputy
,
(
viz.
)
the
Under-sheriffs
and
Bayliffs
Errants
within
the
County
,
called
the
Serjeants
of
the
County
,
and
there
is
no
Warrant
for
him
to
do
so
;
but
yet
the
same
hath
been
still
done
.
A
Ministerial
Officer
,
as
the
Sheriff
is
,
may
Ministerial
Officers
may
make
Deputies
.
make
a
Deputy
;
but
a
Judicial
Officer
cannot
,
because
he
is
to
do
Justice
.
Sed
distinguendum
est
.
All
Retorns
made
by
him
,
ought
to
be
made
in
the
name
of
the
Principal
Officer
.
For
the
High-sheriff
only
is
sworn
as
to
the
execution
of
the
Office
of
Sheriff
,
and
he
is
to
answer
all
.
Sub-Vicecomes
is
a
person
that
our
Law
takes
The
Antiquity
of
Under-sheriff
.
The
Nature
of
an
Under-sheriff
.
notice
of
,
and
an
Under-sheriff
hath
been
in
use
before
the
Conquest
.
Now
an
Under-sheriff
being
in
effect
but
the
Sheriffs
Deputy
,
according
to
the
nature
of
a
Deputation
,
he
is
removable
as
an
Attorney
is
;
and
if
the
Sheriff
make
him
irrevokable
,
yet
he
may
revoke
him
.
He
is
but
in
the
nature
of
a
general
Bayliff
Errant
to
the
Sheriff
,
and
the
whole
Shire
,
as
others
are
over
the
Hundred
.
So
that
the
High-sheriff
may
grant
this
Office
at
The
High-sheriff
may
execute
the
Office
of
Under-sheriff
himself
.
Will
;
or
he
need
not
make
an
Under-sheriff
at
all
,
but
may
exercise
it
himself
.
The
Under-sheriffs
Oath
.
Every
Under-sheriff
,
before
he
meddles
with
Stat
,
27
E●
.
c.
12.
his
Office
,
shall
before
one
of
the
Justices
of
Assize
,
or
the
Custos
Rotulorum
of
the
County
,
or
two
Justices
of
the
Peace
there
,
one
whereof
to
be
of
the
Quorum
,
take
the
Oath
of
Supremacy
,
and
also
the
Oath
hereafter
written
,
on
pain
to
forfeit
treble
Damages
to
the
party
grieved
,
if
he
commit
any
act
contrary
to
the
said
Oaths
,
or
either
of
them
.
The
Form
of
the
Oath
is
as
follows
:
I
A.
B.
shall
not
use
nor
exercise
the
Office
of
Under-Sheriff
corruptly
,
during
the
time
that
I
shall
remain
therein
;
neithe
shall
or
will
accept
,
receive
or
take
,
by
any
colour
,
means
or
device
whatsoever
,
or
consent
to
the
taking
of
any
manner
of
Fee
or
Reward
of
any
person
or
persons
for
the
Impannelling
or
Returning
of
any
Inquest
,
Jury
,
or
Tales
,
in
any
Court
of
Record
for
the
King
,
or
betwixt
party
and
party
above
Two
shillings
,
or
the
value
thereof
,
or
such
Fees
as
are
allowed
and
appointed
for
the
same
by
the
Laws
and
Statutes
of
this
Realm
:
But
will
,
according
to
my
Power
,
truly
and
indifferently
,
with
convenient
speed
,
Impannel
all
Jurors
,
and
Retorn
all
such
Writ
or
Writs
touching
the
same
,
as
shall
appertain
to
be
done
by
my
Duty
or
Office
,
during
the
time
that
I
shall
remain
in
the
same
Office
.
So
help
me
God
.
No
Bayliff
of
Franchise
,
Deputy
,
or
Clerk
of
Bayliffs
of
Franchises
,
and
Sheriffs
Deputies
to
take
the
same
Oath
.
a
Sheriff
or
Under-sheriff
,
shall
intermeddle
with
their
several
Offices
,
before
they
have
taken
the
said
Oaths
,
as
aforesaid
,
(
before
the
Persons
appointed
by
this
Act
to
administer
the
same
)
or
before
the
Head
Officer
of
the
place
,
if
it
be
a
Town
Corporate
,
altering
only
the
Terms
of
the
Office
,
and
the
Office
of
Under-sheriff
,
to
such
words
as
are
convenient
for
the
Deputation
,
Office
,
or
Place
respectively
:
And
this
on
pain
to
forfeit
40
l.
between
the
King
and
the
Prosecutor
.
The
Forfeitures
may
be
sued
by
Debt
,
Bill
,
Forfeitures
,
how
to
be
recovered
.
Plaint
or
Information
,
in
any
the
Kings
Courts
of
Record
:
And
Justices
of
Assize
and
of
the
Peace
in
their
open
Sessions
,
shall
hear
and
determine
the
default
done
contrary
to
this
Act
,
and
on
Conviction
to
award
Execution
by
Fieri
fac'
,
Attachm'
,
Capias
,
or
Exigent
.
The
Sheriff
in
making
an
Under-sheriff
,
doth
implicitly
give
him
power
to
execute
all
the
ordinary
Offices
of
the
Sheriff
himself
,
that
be
transferred
by
Law
;
as
serving
Process
,
Exetion
,
and
the
like
.
But
in
some
Cases
the
High-sheriff
must
exercise
the
Office
himself
in
person
,
and
the
Under-sheriff
may
not
do
it
.
As
,
On
a
Writ
of
Partition
.
On
a
Writ
of
Redisseisin
;
for
in
that
the
Sheriff
is
Judge
.
In
a
Writ
of
Waste
;
for
there
the
Sheriff
is
commanded
to
go
to
the
place
wasted
.
Vide
infra
.
In
Justicies
,
the
Sheriff
himself
is
Judge
,
or
else
all
is
coram
non
Judice
,
and
the
Under-sheriff
cannot
hold
Plea
in
it
.
In
all
Cases
where
the
words
of
the
Writ
are
,
That
the
Sheriff
shall
go
in
his
own
person
;
as
in
an
Accedas
ad
Curiam
,
Waste
,
Redisseisin
;
there
the
Under-sheriff
cannot
do
it
.
And
one
may
be
Judge
and
Officer
in
diversis
respectibus
.
As
the
One
person
may
be
Judge
and
Officer
in
diversis
respectibus
.
Sheriffs
in
Redisseisin
,
Waste
,
&c.
so
Bayliffs
in
many
ancient
Corporations
are
Judges
and
Officers
too
,
and
the
Custom
is
good
,
Cro.
Car.
138.
Crane's
Case
.
A
Writ
of
Partition
was
awarded
,
and
upon
the
Examination
of
the
Under-sheriff
,
he
confessed
the
High-sheriff
was
not
there
,
as
he
ought
to
have
been
,
and
a
new
Writ
was
awarded
.
Now
in
the
Writs
aforesaid
,
where
the
Sheriff
must
do
Execution
in
his
own
person
,
if
He
be
not
there
in
person
;
if
Exception
be
taken
at
the
Bar
before
the
Retorn
of
them
be
received
,
If
the
Waste
be
retorned
and
filed
,
the
Court
cannot
Examine
,
whether
he
were
there
in
proper
person
.
But
Exception
may
be
taken
at
the
Bar
,
before
the
Retorn
be
received
.
the
Writ
shall
not
be
received
:
But
if
the
Sheriff
in
such
Writs
Retorneth
,
That
he
was
there
in
proper
person
,
and
this
Retorn
be
received
,
and
the
Writ
filed
,
then
the
Court
cannot
Examine
it
;
for
the
Retorn
is
good
,
and
the
party
can
have
no
Averment
against
the
Retorn
nor
can
have
any
Error
.
Cro.
El.
Clay
's
Case
,
Hob.
p.
13.
But
all
the
ordinary
Offices
of
the
Sheriff
are
transferr'd
to
the
Under-sheriff
:
And
therefore
High-sheriff
abridge
the
Under-sheriffs
Power
.
Hob.
p.
13.
Norton
and
Sims
.
if
a
Sheriff
will
make
an
Under-sheriff
,
provided
that
he
shall
not
serve
Executions
above
20
l.
without
his
special
Warrant
,
this
Proviso
is
void
.
For
tho'
the
High-sheriff
may
chuse
,
not
to
make
an
Under-sheriff
at
all
,
or
may
make
him
at
Will
,
and
so
remove
him
wholly
;
yet
he
cannot
leave
him
an
Under-sheriff
and
yet
abridge
his
Power
,
no
more
than
the
King
can
in
the
case
of
the
Sheriff
himself
.
Nor
can
the
Under-sheriff
restrain
himself
by
Covenant
;
as
he
being
Under-sheriff
,
is
liable
to
execute
all
Process
,
and
he
hath
power
to
do
all
that
the
Sheriff
can
Transfer
.
And
so
was
the
Case
of
Boucher
and
Wiseman
.
In
the
Indenture
between
the
High-sheriff
and
Under-sheriff
was
an
Exception
,
That
the
Under-sheriff
shall
not
intermeddle
with
the
Execution
Cro.
El.
440
Boucher
and
Wiseman
.
of
any
Writ
above
the
Sum
of
40
l.
And
per
Cur
'
this
Exception
was
repugnant
and
void
.
Sheriffs
Deputy
.
The
Under-sheriff
ought
always
to
have
a
Deputy
attendant
in
every
of
the
Courts
of
Westminster-Hall
,
to
receive
and
execute
their
Commands
,
and
to
give
account
of
Businesses
which
may
fall
out
about
the
Sheriff
.
Vide
supra
.
In
case
the
Plaintiff
declares
,
he
sued
J.
S.
on
Pleading
by
Deputy
his
Deputation
without
Deed.
a
Latitat
directed
to
the
Sheriff
of
D.
and
J.
S.
was
arrested
;
and
the
Defendant
pretending
to
be
Deputy
to
the
Sheriff
,
took
Bond
of
him
and
let
him
at
large
.
The
Defendant
pleads
,
the
Sheriff
made
him
his
Deputy
,
to
bail
all
Prisoners
bailable
in
the
County
,
and
thereupon
he
took
Bond
of
J.
S.
and
delivered
it
to
the
Sheriff
,
&c
The
Plaintiff
demurrs
,
because
he
pleads
his
Deputation
without
Deed
;
per
Gawdy
,
it
is
good
without
Deed
;
for
a
Deputy
doth
things
only
as
a
Servant
,
and
in
right
of
his
Master
,
and
so
may
be
without
Deed
,
Cro.
El.
Clecock
and
Dennis
.
In
Rescue
the
Bayliff
of
a
Liberty
arrested
the
Rescue
from
the
Sheriffs
Deputy
.
party
,
and
delivered
him
to
the
Sheriffs
Deputy
,
and
saith
,
not
from
the
Sheriff
;
yet
it
s
good
:
For
in
an
Action
on
the
Case
he
shall
shew
the
Truth
,
as
it
is
in
rei
veritate
Cro.
Jac.
242.
Kent
and
Ellicot
.
The
Deputy
shall
plead
the
General
Issue
,
as
the
Officer
himself
,
by
the
Stat.
7
Jac.
Mo.
p.
894
n.
1141.
What
Bonds
and
Covenants
between
the
High-sheriff
and
Under-sheriff
are
good
.
Covenant
by
the
Under-sheriff
,
That
he
will
execute
any
Extent
,
Liberate
,
Elegit
,
or
other
Execution
Hob.
p.
13.
not
above
the
Sum
of
40
l.
is
void
.
Vide
supra
.
Covenants
between
the
High-sheriff
,
some
are
Where
some
Covenants
are
good
,
and
where
not
.
good
and
some
are
void
;
for
those
that
are
good
,
the
Bond
for
performance
of
Covenants
shall
stand
good
.
Aliter
upon
a
Statute
,
as
23
H.
6.
c.
10.
If
the
Sheriff
will
take
a
Bond
for
a
Point
against
that
Law
,
and
also
for
a
due
Debt
,
the
whole
Bond
is
void
,
Hob.
p.
13.
Norton
and
Sims
,
14
H.
8.
c.
5.
A
Bond
made
by
the
Under-sheriff
to
the
Bond
for
discharge
of
all
Escapes
.
Sheriff
,
for
discharge
of
all
Escapes
,
is
good
:
For
since
he
transfers
his
Authority
to
him
,
its
reasonable
he
should
take
Security
of
him
to
perform
,
1
Brownl.
83.
Under-sheriff
brought
Debt
against
one
of
Pleading
.
his
Bayliffs
on
Bond
to
save
harmless
in
executing
Process
,
&c.
and
assigns
the
Breach
,
That
the
Bayliff
had
not
executed
such
his
Warrant
sent
to
him
,
upon
a
Process
directed
to
him
out
of
the
Exchequer
,
to
levy
Issues
upon
certain
Lands
.
Defendant
dem●urrs
,
(1)
because
the
Warrant
directed
to
him
was
made
out
of
the
County
:
(2)
It
s
not
alledged
,
that
the
Mannor
of
A.
where
he
was
by
the
Warrant
to
levy
the
Issues
is
within
the
Hundred
where
the
Bayliff
had
Jurisdiction
;
per
Cu●
'
,
its
a
good
Exception
,
and
the
Breach
is
not
shewed
to
be
within
the
Condition
of
the
Obligation
;
because
a
Bayliff
cannot
execute
a
Precept
out
of
the
Hundred
where
he
is
Bayliff
,
Stiles
p.
18.
Slaughter
and
Day
.
High-sheriff
brought
Action
of
Covenant
against
Escape
tho'
after
the
year
,
a
breach
of
Covenant
.
the
Under-sheriff
,
and
alledgeth
,
he
was
a
Sheriff
An.
1658.
and
that
one
W.
was
then
taken
,
and
suffered
to
Escape
out
of
his
Custody
;
whereupon
J.
S.
recovered
against
him
,
and
therein
it
was
alledged
,
That
the
Plaintiff
12
Car.
2.
suffered
him
to
Escape
out
of
his
Custody
;
it
s
well
enough
:
And
any
Escape
,
tho'
after
the
year
,
would
be
a
breach
of
Covenant
,
2
Keb.
352.
Cremer
and
Humberston
.
If
any
Sheriff
take
Hire
,
Gift
or
Bribe
of
any
Sheriff
taking
Bribes
,
or
buying
the
Place
of
Under-sheriff
&c.
Under-sheriff
,
Bayliff
,
Keeper
of
the
Gaol
,
&c.
for
his
Place
or
Office
,
he
may
be
indicted
,
sined
or
imprisoned
,
Art.
super
Chart.
c.
13.
2
Inst.
566
In
Debt
on
an
Obligation
to
perform
Covenants
,
on
Oyer
it
appeared
that
the
Plaintiff
was
Under-sheriff
by
purchase
,
and
so
void
,
per
5
Ed.
6.
c.
Vide
plus
infra
,
sub
hic
Titulo
.
What
acts
of
the
Under-sheriff
,
Bayliffs
,
Gaoler
,
&c.
the
High-sheriff
shall
be
answerable
for
,
or
not
;
or
what
Actions
shall
be
brought
against
the
Under-sheriff
or
High-sheriff
.
Upon
every
default
in
the
Execution
of
his
Neglect
or
Fraud
.
Latch
.
187
Laycock's
Case
.
Office
,
be
it
by
Neglect
or
Fraud
of
the
Under-sheriff
,
he
shall
answer
and
be
amerced
in
the
Exchequer
;
but
the
Sheriff
shall
not
be
imprisoned
for
the
act
of
the
Under-sheriff
,
nor
be
Indicted
.
Per
Stat.
14
Ed.
3.
c.
10.
the
Sheriffs
shall
have
the
14
Ed.
3.
c.
10.
4
Rep.
34.
Mitton's
Case
.
Custody
of
the
Gaols
of
the
Counties
,
and
shall
put
in
such
Gaolers
as
they
will
answer
for
.
The
Sheriff
is
an
immediate
Officer
to
the
Courts
of
the
King
,
and
shall
answer
for
Escapes
;
and
shall
be
subject
to
Amerciaments
,
if
he
has
not
the
Body
ready
in
Court
.
Sir
Richard
Dyer's
Case
,
Sheriff
of
Huntington
,
Escape
brought
against
the
Under-sheriff
.
and
his
Under-sheriff
,
in
Marsh
and
Astry's
Case
.
The
Under-sheriff
suffered
one
to
Escape
,
and
the
Action
was
brought
against
the
Under-sheriff
:
As
if
the
Clerk
in
an
Office
Misenter
any
thing
,
he
himself
shall
be
punished
for
it
,
and
not
the
Master
of
the
Office
:
because
he
takes
a
Fee
for
it
.
But
if
a
Retorn
made
by
Sheriff
to
answer
for
insufficient
Retorns
.
the
Bayliff
be
insufficient
,
then
the
Sheriff
himself
shall
be
amerced
,
1
Leon.
p.
146.
Marsh
and
Astry
.
An
Action
of
Faux
Imprisonment
,
or
other
Actions
against
the
Under-sheriff
.
Action
may
be
brought
against
the
Under-sheriff
in
the
Exchequer
,
altho'
the
High-sheriff
be
Officer
of
the
Court
;
for
the
Court
takes
notice
of
the
Under-sheriff
also
.
Faux
Imprisonment
against
the
Under-sheriff
;
Faux
Imprisonment
.
for
detaining
a
Prisoner
after
a
Release
made
,
1
Roll.
Abr.
539.
Doyley
and
Jolliff
,
3
Bulstr.
96
,
97.
Withers
and
Henly
.
If
the
Demandant
in
a
Writ
of
Entry
or
Not
Retorning
a
Writ
of
Summons
.
Disseisin
deliver
a
Writ
of
Summons
to
the
Under-sheriff
of
the
County
,
and
after
he
summons
a
Tenant
upon
the
Land
accordingly
,
and
notwithstanding
doth
not
Retorn
the
Writ
,
Action
on
the
Case
may
be
brought
against
the
Under-sheriff
,
if
the
Plaintiff
will
:
For
peradventure
the
Sheriff
had
not
Notice
of
it
,
and
the
Under-sheriff
took
Fees
to
execute
the
Writ
;
and
it
s
said
falsò
&
malitiosè
for
delay
of
the
Plaintiff
,
which
is
imbezelling
it
,
Hill.
32
El.
B.
R.
Marsh
and
Astry
.
Servant
of
the
Bayliff
of
a
Franchise
,
sworn
Where
the
Bayliff
of
a
Franchise
is
chargable
.
on
Deputation
to
serve
Process
but
of
such
a
sum
,
and
he
serves
Process
of
a
greater
sum
sans
Warrant
,
and
after
levied
the
Money
,
and
parts
with
it
;
the
Bayliff
shall
be
chargable
,
Hetley
p.
12.
Latitat
issues
to
the
Sheriff
of
N.
who
makes
his
Warrant
to
the
Bayliff
of
a
Liberty
to
arrest
J.
S.
the
Bayliff
makes
his
Warrant
to
his
Deputies
:
The
Deputies
Arrest
him
at
W.
out
of
Sir
Tho.
Jones
Rep.
p.
215.
Olliet
and
Bissey
.
the
Liberty
,
and
after
bring
him
into
the
Liberty
,
and
delivered
by
them
to
the
Gaoler
of
the
Liberty
.
Per
Cur
'
,
The
Action
of
Faux
Imprisonment
lies
not
against
the
Gaoler
,
for
he
had
done
but
what
belonged
to
his
Office
,
and
is
not
bound
to
enquire
whether
the
first
Arrest
be
Tortious
,
or
not
;
and
if
he
had
been
informed
of
it
,
yet
if
he
had
not
been
privy
to
the
Practice
,
yet
he
ought
to
detain
the
Prisoner
,
being
delivered
to
him
by
a
good
Warrant
:
For
if
such
Information
had
been
False
,
the
Gaoler
had
been
liable
to
an
Escape
;
and
the
Prisoner
is
not
without
his
Remedy
,
for
he
had
a
good
Action
against
the
Tortfesors
;
and
it
seem'd
to
Maynard
,
the
Action
lyes
against
the
Gaoler
,
because
he
is
as
a
Servant
to
the
Bayliff
of
the
Liberty
.
But
no
such
thing
appeared
in
the
Record
;
and
in
truth
he
was
a
Patent
Officer
by
Grant
of
the
Lord
of
the
Liberty
.
But
per
Cur
'
,
if
it
had
been
so
,
this
alters
not
the
Case
;
for
the
Bayliff
had
made
his
Warrant
lawful
,
and
the
sole
Offence
was
in
the
Bayliffs
,
who
execute
the
said
Lawful
Warrant
illegally
.
If
the
Under-sheriff
make
a
Retorn
amerciable
,
Retorn
amerciable
.
there
the
High-sheriff
shall
be
amerced
;
for
the
Retorn
is
made
expresly
in
his
Name
:
But
if
it
be
a
False
Retorn
whereupon
an
Action
of
False
Retorn
.
Desceit
lies
,
in
that
case
it
may
be
brought
against
the
Under-sheriff
,
Dr.
&
Stud.
c.
42.
The
Sheriff
shall
answer
for
the
Misdemeanors
Misdemeanors
of
Bayliffs
.
Concealment
of
a
Writ
.
of
his
Bayliff
.
Ibid.
If
a
Warrant
on
a
Fieri
fac
'
be
directed
to
an
Under-bayliff
of
a
Liberty
,
and
he
levies
the
Debt
,
but
conceals
the
Writ
,
nor
makes
any
Certificate
of
it
,
Action
on
the
Case
lies
against
him
;
for
it
is
a
Personal
wrong
,
Mich.
12
Jac.
B.
R.
Bell
and
Catesby
.
Fieri
fac
'
is
to
levy
the
Goods
of
Dawson
,
and
The
difference
between
the
mistake
of
one
person
for
another
,
and
the
Goods
of
one
for
another
.
the
Bayliff
by
virtue
thereof
took
the
Goods
of
Luttrel
as
the
Goods
of
Dawson
,
Trespass
well
lies
against
the
High-sheriff
.
For
albeit
had
the
Under-sheriff
taken
another
Person
,
he
had
done
wrong
and
without
Warrant
,
and
the
Action
well
lies
against
him
;
yet
as
to
Goods
,
this
may
be
done
by
colour
of
the
Warrant
,
and
the
High-sheriff
is
chargable
in
Trespass
;
and
the
Retorn
of
Nulla
bona
will
not
alter
the
case
,
having
no
influence
on
Lutterels
Goods
.
By
Windham
,
the
High-sheriff
and
Under-sheriff
are
one
Officer
:
And
if
an
Under-sheriff
deliver
Hab'
fac'
●possess●
of
White-acre
for
Black-acre
.
White-acre
on
Hab'
fac'
possession
'
of
Black-acre
,
the
High-sheriff
is
chargable
,
alitèr
of
a
Common
Servant
,
who
is
a
Trespasser
,
if
he
takes
one
mans
Goods
as
anothers
,
for
which
I
sent
.
Also
,
here
is
no
Special
Warrant
set
forth
,
therefore
all
is
the
act
of
the
Sheriff
;
and
the
High
sheriff
may
well
bring
his
Action
of
Covenant
against
the
Under-sheriff
,
Pasch.
20
Car.
2.
B.
R.
Cremer
and
Humberston
.
If
a
Bayliff-Errant
,
or
Special
Bayliff
,
Arrest
Action
is
for
Rescous
against
the
Sheriff
,
not
against
the
Bayliff
.
a
man
upon
a
Capias
ad
satisfaciendum
,
and
after
the
Prisoner
rescues
himself
,
he
at
whose
Suit
he
was
arrested
may
not
have
an
Action
on
the
Case
upon
the
Escape
against
the
Bayliff
,
but
he
ought
to
have
it
against
the
Sheriff
;
for
the
Bayliff
is
but
a
Servant
to
the
Sheriff
,
Mich.
32
El.
B.
R.
Atterton
and
Harwood
.
The
Gaoler
shall
answer
for
his
Servant
,
who
Gaoler
to
to
answer
for
his
Servant
.
Bayliff-Errant
.
Dr.
&
Stnd.
lib.
2.
127.
permits
Escapes
.
The
False
Retorn
of
the
Sheriff
shall
not
make
the
Bayliff
punishable
in
an
Action
;
for
he
is
Bayliff-Errant
,
and
a
meer
Servant
.
As
the
Bayliff
Justifies
per
Sheriffs
Warrant
;
Plaintiff
Replies
,
the
Sheriff
Retorned
upon
the
Writ
,
Tardè
,
Cr●
.
El.
181.
Parks
and
Mosse
.
Respondeat
Superior
.
In
all
Cases
of
Escape
,
the
Gaoler
who
has
the
9
Rep
98.
actual
possession
of
the
Gaol
shall
answer
for
all
Escapes
;
but
if
he
have
not
sufficient
wherewithal
to
answer
Respondeat
Superior
,
i.
e.
He
that
committed
the
Custody
of
the
Gaol
to
him
.
Yet
quaere
de
hoc
.
There
is
no
Process
directed
to
a
Gaoler
,
but
an
Habeas
Corpus
,
and
the
Prisoners
are
in
the
Eye
of
the
Law
,
in
the
Custody
of
the
Sheriff
only
;
and
when
our
Books
say
,
Actions
of
Escape
lye
against
Gaolers
,
such
absolute
Gaolers
are
intended
,
as
Writs
are
directed
to
:
Tho'
I
conceive
an
Action
lies
against
the
Sheriff
or
Gaoler
at
Election
;
and
if
the
Gaoler
is
not
sufficient
,
then
against
the
Sheriff
.
Vid.
Hardress
p.
29.
Wainright
and
Griffith
,
a
Case
Argued
,
but
not
Resolved
.
How
the
Superior
,
and
in
what
Cases
,
shall
answer
for
the
Inferior
,
or
not
.
If
a
man
be
sent
to
Prison
on
a
Statute
Merchant
Dr.
&
Stud.
lib.
2
p.
136
by
the
Mayor
,
before
whom
the
Recognizance
was
taken
;
and
if
the
Gaoler
will
not
receive
him
,
he
shall
answer
for
the
Debt
,
if
he
have
wherewith
;
if
he
have
not
,
then
he
shall
answer
that
committed
him
to
the
Gaol
,
as
appears
by
the
Statute
called
Statute
Merchant
.
23
H.
6.
c.
10.
The
Superior
shall
put
in
such
for
whom
they
will
answer
.
The
Comminalty
of
London
that
have
the
Fee
,
shall
answer
for
the
Sheriffs
.
But
in
such
Action
against
the
Superior
it
must
Averment
.
be
averred
,
that
the
Inferior
was
Insufficient
:
As
in
Debt
against
the
Dean
and
Chapter
of
Pauls
,
for
the
Escape
of
the
Bayliff
of
a
Liberty
lies
not
,
because
it
is
not
averred
that
the
Bayliff
was
insufficient
,
2
Roll.
155
Dyer
278.
Debt
was
brought
on
Escape
of
Holt
,
Committed
How
to
De●l●●e
.
to
the
Fleet
on
Judgment
.
Declaration
is
,
That
the
Defendant
,
Sir
Jeremy
Whitchc●●t
,
was
seised
,
and
granted
the
Office
of
Ward●n
of
the
Fleet
for
three
Lives
to
Duckenfield
,
who
was
seised
,
and
by
Habeas
Corpus
Holt
was
removed
,
and
by
Chancery
Committed
to
the
Fleet
in
Execution
;
and
Duckenfield
suffered
the
Escape
,
the
Defendant
being
Superior
,
and
Duckenfield
insufficient
.
The
Court
inclined
,
That
the
Superior
in
this
case
was
chargable
:
But
the
Declaration
being
,
That
at
the
time
of
the
Lease
and
Commitment
of
the
Prisoner
,
and
at
the
time
of
the
Action
,
the
Lessee
Duckenfield
was
insufficient
;
and
the
Verdict
is
only
,
That
he
was
at
the
time
of
the
Lease
,
and
of
the
Escape
and
Commitment
;
but
not
that
he
Verdict
not
pursuant
.
was
Insufficient
at
the
time
of
the
Action
,
which
is
the
Gist
of
the
Action
;
and
if
he
was
Insufficient
at
the
time
of
the
Action
,
no
Action
lieth
.
And
this
is
necessary
to
be
found
on
Westm.
2.
c.
11.
and
this
being
not
found
,
nor
nec
unquam
postea
25
Car.
2.
Plummer
&
Whitchcot
vid.
Sir
Tho.
Jones
Rep.
p.
60.
Mesme
Case
.
Dyer
278.
Gawd●es
Case
.
the
Escape
,
the
conclusion
being
so
super
totam
materiam
,
and
the
tota
materia
is
not
found
,
&c.
a
Venire
fac'
de
novo
was
awarded
.
The
Duke
of
Norfolk
was
adjudged
to
answer
for
his
Deputy
.
Dyer
278.
The
Duke
of
Norfolks
Case
was
this
,
He
being
Marshal
of
England
,
and
having
Authority
to
make
a
Deputy
,
made
Gawdy
his
Deputy
,
who
was
sworn
in
open
Court
;
afterwards
Gawdy
Licensed
a
Prisoner
,
who
was
in
Execution
to
go
into
Norfolk
with
a
Keeper
,
and
Debt
was
brought
against
Gawdy
for
the
Escape
.
It
was
adjudged
,
tho'
he
was
but
under
Marshal
,
and
the
Action
brought
in
Middlesex
,
supposing
the
Escape
in
Shorditch
,
and
not
in
the
County
of
Surry
where
the
Marshalsea
is
,
that
the
Action
did
well
lie
.
Debt
was
brought
against
the
Dean
and
Chapter
Noy
67.
Dean
and
Chapter
of
Pauls
Case
.
of
Pauls
,
for
an
Escape
suffered
by
their
Bailiff
of
a
Franchise
,
where
they
had
Retorn
of
Writs
.
Per
Cur.
It
lies
not
against
them
,
but
against
the
Bayliff
,
for
the
Writ
is
directed
to
him
,
scilicet
,
Ballivo
Libertatis
,
and
for
an
ill
Retorn
the
Bayliff
always
is
fined
.
The
County
answers
for
the
Coroners
.
The
Gaoler
of
the
County
shall
not
answer
Where
the
Rule
Resp.
Superior
hold
or
not
.
Escape
on
Execution
,
but
the
Sheriff
,
and
some
hold
that
Respondeat
Superior
,
is
only
where
the
inferior
Officer
is
removeable
,
as
Gaoler
to
the
Sheriff
.
By
Wild
and
others
on
W.
2.
chap.
11.
It
was
never
intended
,
that
Superior
should
answer
in
any
other
Case
than
Account
.
This
as
some
say
is
grounded
on
13
Ed.
1.
c.
11.
on
1
R.
2.
c.
12.
and
Respondeat
Superior
was
only
in
the
Kings
Case
at
Common
Law
.
Marshal
of
the
B.
R.
is
but
a
Branch
of
the
Earl
Marshal
.
If
Execution
be
directed
to
a
Sheriff
to
make
2
Brownl
.
Rep.
50.
Execution
within
a
City
,
and
the
Sheriff
directs
his
Warrant
to
the
Bayliff
,
who
does
it
,
and
after
is
a
fugitive
and
not
able
to
answer
for
it
;
the
Lord
of
the
Franchise
shall
answer
for
it
,
Where
Lord
of
a
Franchise
to
answer
.
and
shall
be
liable
to
answer
for
his
Bayliff
.
He
which
has
the
keeping
of
the
Gaol
by
right
or
wrong
,
shall
be
charged
for
the
Escape
of
Prisoners
.
And
if
he
which
has
the
Custody
of
the
Gaol
in
Fee
,
substitutes
another
under
him
at
Will
,
or
for
Life
,
he
which
hath
the
actual
9
Rep.
98.
Possession
of
the
Office
shall
be
charged
(
by
Action
)
for
the
Escape
.
But
if
they
be
not
sufficient
Respondeat
Superior
.
Having
treated
of
Sheriffs
and
Under-Sheriffs
,
I
shall
add
some
few
Resolutions
,
where
Tryals
shall
be
by
the
Sheriff
or
by
the
Record
.
Of
Tryals
.
Tryal
may
be
by
the
Certificate
of
the
Sheriff
,
By
Sheriffs
Certificate
.
Trial●
per
pais
.
9.
upon
a
Writ
directed
to
him
in
the
Case
of
Priviledg
,
whether
one
be
a
Citizen
or
Foreigner
.
Tryals
per
Pais
.
9.
Whether
one
was
Sheriff
such
a
day
or
not
,
Cro.
Car.
421.
shall
be
tryed
per
Pais
.
If
it
be
a
Question
,
whether
the
Sheriff
made
By
the
Sheriff
.
such
a
Retorn
or
not
,
it
shall
be
tried
by
the
Sheriff
,
If
whether
the
Under-sheriff
made
such
a
Retorn
or
not
,
it
shall
be
tried
by
the
Under-sheriff
.
Cro.
Car.
421.
By
the
Record
.
If
the
Question
be
,
whether
such
an
one
be
Sheriff
or
not
,
he
being
made
by
Letters
Patents
of
Record
,
shall
be
tried
by
the
Record
.
As
was
Smiths
Case
.
Error
assigned
,
because
the
Venire
fac
'
was
retorned
by
Sir
R.
S.
Sheriff
of
Essex
,
and
in
Crastino
Martini
9
Car.
and
then
the
said
Sir
R.
S.
was
not
Sheriff
,
but
H.
S.
the
Defendant
in
the
Writ
of
Error
saith
,
that
Sir
R.
S.
was
Sheriff
of
Essex
before
the
Retorn
of
the
said
Writ
,
(
viz.
)
10
No.
9
Car.
by
the
Kings
Patent
,
prout
patet
de
Recordo
.
Upon
Nul
tiel
Record
pleaded
,
at
the
day
he
produced
the
Letters
Patents
in
Court
,
whereby
he
was
made
Cro.
Car.
421.
Smith
Case
.
Sheriff
.
It
was
moved
,
that
it
ought
to
be
tried
per
Pais
,
whether
he
were
Sheriff
such
a
day
,
and
not
by
the
Record
of
the
Patent
,
for
he
might
be
discharged
before
the
day
.
But
per
Cur.
that
shall
not
be
intended
,
unless
it
were
by
pleading
shewn
to
the
Court
,
and
so
Judgment
was
affirmed
.
If
it
come
in
Issue
,
whether
he
that
made
the
8
H.
410
,
20.
Br.
Officer
33.
Array
be
Under-sheriff
or
not
;
this
shall
be
tried
by
the
County
and
not
by
the
Officer
.
CHAP.
IV.
Of
Bayliffs
of
Hundreds
;
their
Nature
,
Office
and
Oath
.
Of
Special
Bayliffs
,
and
of
Promises
on
making
Special
Bayliffs
,
to
save
harmless
from
Escapes
.
Of
Bayliffs
of
Franchises
,
their
Nature
,
Power
,
Office
;
and
of
Retorns
by
them
.
The
manner
of
Pleading
by
Bayliffs
of
Franchises
.
In
what
Cases
the
Sheriff
may
Enter
into
their
Liberties
.
Of
Baliffs
of
Fees
,
or
Guildable
.
HAving
treated
of
Under-sheriffs
,
I
come
now
to
speak
of
Bayliffs
to
the
Sheriff
,
(
viz.
)
Bayliffs
Errant
,
or
Ballivi
Intinerantes
,
or
Bayliffs
of
Hundreds
,
and
Special
Bayliffs
.
The
making
of
the
Bayliffs
of
Hundreds
belongs
to
the
Sheriff
.
By
the
Statute
of
14
Edw.
3.
Hundreds
(
as
to
the
Bayliffwicks
of
the
same
)
are
rejoyned
to
the
Counties
,
and
all
Grants
made
of
the
Bayliffwicks
of
Hundreds
since
that
Statute
are
void
,
and
the
making
the
Bayliffs
thereof
belongs
to
4
Instit.
267.
Fortescues
Casae
.
Hundreds
cannot
be
granted
from
the
Sheriff
.
the
Sheriff
;
as
in
Fortescues
Case
of
Buckingham
Shire
,
2
Car.
1.
Fortescue
had
of
late
divers
Hundreds
granted
to
him
for
Life
,
in
Com'
Bucks
,
reserving
a
Rent
,
which
the
Sheriff
disallowed
,
and
put
in
Bayliffs
of
his
own
;
and
per
Curiam
,
this
was
against
Law
,
and
they
belonged
to
the
Office
of
Sheriff
.
And
so
,
A
Patent
to
Execute
all
Process
within
an
Hundred
is
void
.
There
was
a
Case
in
34
Car.
2.
B.
R.
Cle
and
Ireland
,
which
confirms
this
resolution
.
The
Sheriff
of
the
County
of
Leicest
'
against
the
Grantee
of
the
Hundred
of
G.
in
an
Action
on
the
Case
,
the
Grant
was
by
the
King
of
an
Hundred
pur
Ans
,
and
on
Special
Verdict
the
Question
Sir
Th.
Jones
Rep.
194.
was
,
If
the
Defendant
had
good
Title
by
such
Grant
to
the
said
Hundred
to
hold
a
Court
,
and
constitute
a
Bayliff
against
the
Will
of
the
Sheriff
,
and
the
Contingent
,
and
incident
Fees
of
Leets
,
and
Courts
Barons
of
the
Hundred
.
And
per
Cur
'
all
the
Hundreds
which
were
not
before
the
Statute
of
2
Ed.
3.
c.
12.
and
18
Ed.
3.
c.
9.
in
Fee
by
the
Crown
were
joyned
to
the
Office
of
the
Sheriff
.
And
Judgment
was
given
for
the
Plaintiff
against
the
Patentee
.
A
Sheriffs
Bayliff
is
not
an
Officer
of
the
Pract.
Reg.
49
,
50.
Court
,
that
the
Court
takes
notice
of
.
A
Bayliff
of
an
Hundred
may
Execute
a
Writ
The
extent
.
Pract.
49.
out
of
the
Hundred
where
he
his
Bayliff
,
for
he
is
Bayliff
all
the
County
over
.
Sheriffs
Bayliffs
shall
not
be
prejudiced
by
Sheriffs
,
Bayliffs
,
not
to
be
prejudiced
by
the
Non-retorn
,
or
the
mis-return
of
the
Sheriff
.
the
Non-retorn
,
or
Mis-retorn
of
the
Sheriff
.
The
Defendant
(
as
Bayliff
of
an
Hundred
)
took
Goods
in
Execution
on
Fieri
fac
'
,
and
sold
them
,
and
delivered
the
Money
to
the
Sheriff
;
its
good
,
and
no
Trover
lies
against
the
Bayliff
,
for
they
did
Execute
Secundum
Exigentiam
Brevis
.
1
Leon.
144.
Parkes
and
Hows
.
Sheriffs
Bayliffs
are
to
take
the
Oath
of
Allegiance
To
take
the
Oath
of
Allegiance
.
3
Keb.
561
,
552.
according
to
the
Statute
,
27
Eliz.
c.
12.
Subpaena
40
l.
(
viz.
)
Bayliffs
of
Hundreds
,
for
they
should
Execute
all
Writs
,
and
must
attend
Assizes
and
Sessions
;
and
the
Statute
requires
,
that
Le
Roy
versus
Bents
.
they
have
sufficient
within
the
Hundred
,
(
but
the
ordinary
Bayliffs
or
Bum-bayliffs
need
not
.
)
And
the
words
,
(
that
no
other
Person
or
Persons
shall
intermedle
till
Sworn
)
refer
to
the
subject
matter
,
(
viz.
)
such
persons
as
ought
usually
to
swear
as
Sheriffs
Officers
.
The
Form
of
the
Deputation
of
the
Bayliff
of
the
Hundred
.
Vid.
Greenwood
53.
The
Execution
of
all
Writs
,
which
come
to
9
Ed.
2.
de
vicecom.
the
Sheriff
,
shall
be
done
by
the
Bayliffs
of
Hundreds
,
such
as
are
sworn
,
tho'
now
the
use
is
to
put
in
Special
Bayliffs
.
Bayliffs
of
Hundreds
shall
attend
Justices
of
27
H.
8.
24.
Assize
,
Gaol-delivery
,
and
Justices
of
Peace
in
every
of
their
Courts
and
Sessions
.
Of
Special
Bayliffs
;
what
they
are
,
and
how
they
stand
in
the
Eye
of
the
Law
.
A
Special
Bayliff
to
a
Sheriff
for
the
time
being
,
Jones
Rep.
65.
Bath
and
Salter
.
he
is
his
Officer
,
and
his
Arrest
is
the
Arrest
of
the
Sheriff
;
and
if
he
suffer
a
Prisoner
to
Escape
,
an
Action
lies
against
the
Sheriff
;
and
if
the
Prisoner
makes
Rescous
,
the
Retorn
of
the
Retorn
of
Rescous
.
Rescous
shall
be
,
that
it
was
done
to
the
Sheriff
himself
.
The
Statute
of
27
El.
c.
12.
about
taking
the
Jones
Rep.
249.
Oath
that
the
Under-sheriff
takes
,
extends
not
to
Special
Bayliffs
.
Inconsideration
,
the
Bayliff
will
make
such
an
Promise
to
save
harmless
from
Escapes
.
Crok
.
El.
178.
271.
Dabridgcourt
and
Smalbroke
.
1
Rol.
Ab.
16.
Palmer
and
Smalbroke
.
one
his
Special
Bayliff
,
a
promise
to
save
harmless
from
Escapes
is
good
;
for
he
is
an
Officer
appointed
by
the
Plaintiff
,
and
it
s
no
reason
the
Sheriff
should
be
at
a
loss
by
his
appointment
.
And
this
Assumpsit
is
not
within
the
Statute
of
23
H.
6.
c.
10.
for
as
the
Party
may
Discharge
a
Prisoner
in
Execution
,
so
he
may
foreclose
himself
from
the
benefit
,
if
the
Prisoner
Escape
and
this
Action
lies
,
if
he
brings
Escape
against
the
Sheriff
.
Note
,
The
Delivery
of
the
Writ
,
and
the
Promise
made
,
was
to
the
Under-sheriff
,
and
not
to
the
Sheriff
himself
.
Of
Bayliffs
of
Franchises
,
and
their
Power
,
and
Retorns
.
Bayliffs
of
Franchises
,
or
Liberties
,
are
such
as
are
appointed
by
Lords
within
their
Liberties
,
to
do
such
Offices
within
the
Precincts
of
such
Lordships
or
Liberties
,
as
the
Bayliff
Errant
do
at
large
in
their
County
,
Hundred
,
that
have
Retorna
brevium
or
Franchises
.
Note
,
Bayliffs
of
Franchises
,
before
they
execute
The
Oaths
.
Insufficient
retorns
by
them
.
their
Office
must
take
two
Oaths
,
one
concerning
the
Supremacy
,
the
other
concerning
the
executing
their
Office
.
Vide
Supra
.
Tit.
Under-sheriff
.
Fines
and
Amerciaments
for
insufficient
Retorn
Where
the
Sheriff
may
enter
the
Franchise
or
not
.
of
Writs
,
or
other
Process
made
by
the
Stewards
,
or
Bayliffs
of
Liberties
shall
be
set
upon
the
Heads
of
such
Stewards
or
Bayliffs
,
and
not
upon
the
Sheriff
.
per
Stat.
27
H.
8.
c.
24.
Hundred
by
Grant
,
that
hath
a
Bayliff
by
3
Keb.
71.
125.
particular
Lord
,
is
but
his
Servant
,
and
the
Sheriff
Monday
and
Frogat
.
Bayliffs
of
Franchises
cannot
as
such
,
take
Bonds
for
appearance
in
the
Sheriffs
name
must
retorn
his
Precept
.
usually
makes
another
Bayliff
to
execute
there
:
But
a
Bayliff
of
a
Franchise
Hundred
,
may
wave
his
Franchise
,
and
Arrest
as
a
Sheriffs
Bayliff
;
and
then
he
may
take
Obligation
in
the
name
of
the
Sheriff
,
for
properly
a
Bayliff
of
a
Franchise
cannot
take
a
Bond
for
appearance
in
the
Sheriffs
name
;
but
Bayliff
of
Hundreds
may
,
Dalt
.
544.
cont
.
[
](A34174-e23820-b)*
*
2
Keb.
838.
Grene
and
Jones
.
The
Baliff
of
a
Liberty
must
Retorn
his
Precept
and
set
his
name
to
it
;
and
a
Bayliff
Itinerant
need
not
.
[
](A34174-e23850-b)†
†
Keb.
86.
87.
They
cannot
Arrest
a
Man
without
a
Warrant
to
them
by
the
Sheriff
,
and
if
they
Retorn
not
the
Warrant
to
the
Sheriff
,
the
Party
Arrested
may
have
his
Action
of
false
Imprisonment
against
the
Bayliff
.
A
Bayliff
of
a
Liberty
cannot
execute
a
Cap.
Cannot
execute
a
Cap.
Utlag
3
Jac.
1.
per
Cur'
in
B.
R.
Utlag
.
and
if
the
Party
be
in
the
Hands
of
the
Bayliff
,
the
Sheriff
may
take
him
,
for
it
is
a
non
omittas
in
it self
.
In
all
Cases
where
the
King
is
Party
,
the
Process
must
be
with
a
non
omittas
propter
aliquam
Libertatem
,
and
there
the
Sheriff
shall
not
send
his
Precept
to
the
Bayliff
of
a
Liberty
,
but
shall
enter
himself
ex
officio
,
as
for
apprehending
of
Felons
,
or
any
act
at
the
Suit
of
the
King
,
always
Dalt
.
456.
extant
on
Stat.
Merchant
,
vid.
Stat.
de
Mercatoribus
.
But
in
other
Cases
where
the
King
is
no
Party
,
there
if
without
a
non
omittas
the
Sheriff
shall
enter
a
Franchise
to
execute
the
Kings
Process
,
the
Execution
of
the
Process
shall
be
good
;
but
the
Lord
of
the
Liberty
shall
have
an
Action
against
him
,
and
the
Party
Arrested
shall
have
no
remedy
.
If
Goods
are
Distrained
and
Impounded
in
a
Liberty
,
the
Bayliff
is
to
make
Replevin
and
Deliver
them
,
but
if
the
Bayliff
will
not
,
or
did
not
Deliver
them
,
after
the
Sheriff
hath
made
Retorn
of
the
Kings
Writ
to
him
,
then
the
Sheriff
shall
enter
and
Deliver
them
.
per
Stat.
52
H.
3.
21
Ed.
1.
17.
and
in
such
cases
the
Sheriffs
Retorn
will
not
serve
.
A
Writ
of
Enquiry
of
Damages
directed
to
the
Sheriff
,
cannot
be
executed
by
a
Bayliff
of
He
cannot
execute
a
Writ
of
Enquiry
of
Damag●s
directed
to
the
Sheriff
.
a
Liberty
,
but
by
the
Sheriff
himself
;
so
in
Redisseisin
,
for
he
is
both
Judge
and
Officer
there
.
Hob.
p.
83.
Vizey
and
Gunstone
.
[
](A34174-e24060-b)*
*
Bayliff
of
Westminster
fined
because
the
Gaoler
of
the
Gatehouse
,
refused
to
charge
a
Prisoner
with
the
Sheriff
of
Middlesex
his
Warrant
3
Keb.
479.
Briton
and
Griffith
.
One
was
in
Prison
in
the
Gatehouse
,
by
a
Warrant
from
Secretary
Coventry
for
Mi●demeanors
,
and
the
Gaoler
refused
to
charge
him
with
a
Warrant
of
the
Sheriff
of
Middlesex
at
the
Plaintiff
Suit
.
Per
Cur
'
the
Gaoler
cannot
dispute
it
,
tho'
the
Court
may
give
leave
or
refuse
it
;
and
the
Bayliff
of
Westminster
on
pain
of
20
l.
was
ordered
to
Return
the
Writ
.
Of
Retorns
by
them
.
A
Bayliff
who
Executes
a
Writ
,
and
is
removed
Of
their
Retorn
of
Writs
to
the
Sheriff
.
More
431.
Palmer
and
Porter
.
More
402.
Atkinson
.
before
the
Retorn
,
may
make
the
Retorn
to
the
Sheriff
,
and
he
over
to
the
Court
,
but
if
he
Executes
it
not
,
he
shall
not
make
the
Retorn
,
but
the
Retorn
of
Nihil
or
non
est
inventus
t
is
to
be
made
by
the
New
Bayliffs
.
The
Sheriff
Retorns
,
Mandavi
Ballivo
qui
mihi
dedit
responsum
qd'
cepit
corpus
,
&
A.
fecit
Rescous
.
It
s
a
good
Retorn
.
But
Mandavi
Ballivo
qui
cepit
carpus
,
&
A.
fecit
Rescous
is
not
good
in
Redisseisin
,
and
that
he
cannot
Retorn
Mandavi
Ballivo
,
&c.
Vide
pluis
tit.
Retorn
.
A
Man
may
aver
against
the
false
Retorns
Averment
against
the
Retorn
.
Dalt
.
545.
of
Bayliffs
of
Liberties
,
and
shall
recover
as
well
against
them
,
as
against
the
Sheriff
too
of
several
Issues
retorned
.
Dalt
.
545.
Where
the
Precept
is
made
to
the
Sheriff
by
Force
within
a
Liberty
.
Dalt
.
545.
the
Justices
of
Peace
,
to
retorn
a
Jury
to
enquire
of
a
Forceable
Entry
,
and
the
Force
is
within
a
Liberty
,
the
Sheriff
shall
direct
his
Precept
to
the
Bayliff
of
the
Liberty
to
Retorn
the
Jury
,
the
Bayliff
must
make
a
due
Retorn
as
to
Issues
on
Jurors
,
&c.
Note
,
The
Bayliff
shall
never
take
benefit
of
5
Rep.
92.
his
Liberty
.
If
Capias
or
fieri
fac
'
comes
against
the
Bayliff
,
the
Sheriff
shall
execute
the
Process
on
him
,
or
his
Goods
,
within
the
Liberty
;
and
where
the
Bayliff
of
the
Liberty
is
party
to
the
Suit
,
he
shall
not
Retorn
the
Jury
,
but
the
Sheriff
.
Where
and
in
what
Cases
the
Sheriff
may
Enter
into
a
Franchise
.
Wheresoever
the
King
is
a
Party
,
as
in
every
Felony
or
suspicion
of
Felony
,
or
otherwise
in
5
Rep.
92.
any
Action
,
the
Sheriff
ex
officio
is
to
enter
the
Franchise
,
and
to
execute
the
Process
himself
.
In
a
Writ
of
Wast
and
Redisseisin
,
the
Sheriff
must
enter
the
Franchise
,
to
make
enquiry
,
&c.
So
where
the
Bayliff
nullum
dedit
responsum
.
So
to
Deliver
a
Distress
.
But
't
is
safest
for
the
Sheriff
in
default
of
the
Bayliff
,
to
have
a
Writ
of
non
omittas
propter
Libertatem
.
On
extent
upon
Stat.
Merchant
,
the
Sheriff
is
to
enter
the
Franchise
.
If
the
Sheriff
enter
on
non
emittas
,
by
reason
Terms
Ley.
of
the
Bayliffs
default
,
and
Execute
the
Writ
,
the
Sheriff
shall
warn
the
Bayliff
of
the
Franchise
,
that
he
be
before
the
Justices
at
the
day
contained
in
the
Writ
,
and
if
he
come
not
,
and
excuse
himself
,
then
all
Writs
judicial
in
the
same
Plea
,
shall
be
Writs
de
non
omittas
.
The
Sheriff
in
his
Retorn
is
to
set
down
the
name
of
Baliff
of
the
Liberty
.
Pleadings
by
Bayliffs
of
Franchises
.
Trespass
for
taking
away
a
Mare
;
the
Defendant
He
must
shew
the
Jurisdiction
of
the
Court.
saith
,
That
before
the
Taking
the
Defendant
(
being
the
King's
Bayliff
)
by
Precept
out
of
the
Court
of
Pomfret
,
to
make
Execution
,
&c.
on
Levari
,
&c.
Per
Cur'
,
Its
ill
,
because
he
doth
not
shew
the
Jurisdiction
of
the
Court
;
and
that
is
necessary
by
the
Bayliff
of
an
Inferiour
Court
,
especially
because
he
Justifies
by
1
Keb.
53.
Crofts
and
Wilkinson
.
reason
thereof
,
as
in
the
Countess
of
Rutlands
Case
;
and
it
must
appear
that
the
Court
hath
Cognizance
of
the
Cause
,
aliter
he
cannot
execute
there
Precept
.
Action
on
Escape
,
and
declares
he
delivered
a
Writ
to
the
Sheriff
of
Nottingham
,
who
made
a
Warrant
to
the
Bayliff
of
the
King's
Liberty
Plead
,
Rescue
from
the
Deputy
of
the
Bayliff
of
a
Liberty
.
of
Newark
to
execute
it
;
which
Warrant
was
delivered
to
one
L.
Deputy
of
the
Lord
Burleigh
,
Ballivo
Libertatis
Dom'
Regis
Wapentagii
sui
de
Newark
,
who
Arrests
him
,
and
the
Defendant
Rescued
him
out
of
the
Custody
of
the
said
Deputy
.
He
saith
,
he
was
Rescued
from
the
Deputy
of
the
Bayliff
of
the
Franchise
;
and
does
not
say
,
from
the
Bayliff
himself
,
or
the
Sheriff
.
Per
Cur
'
,
its
good
:
For
in
this
Action
on
the
Case
he
shall
shew
the
Truth
,
as
it
is
rei
veritate
,
and
it
s
not
like
the
Retorns
of
Rescues
or
Indictments
,
which
say
,
it
was
done
to
the
Sheriff
or
Bayliff
himself
.
It
was
moved
for
Error
,
Secondly
,
because
it
is
alledged
,
the
Lord
Burleigh
was
Ballivo
Libertatis
Dom'
Regis
de
Newark
,
and
the
King
cannot
have
any
Liberties
;
for
they
are
extinct
when
they
are
come
to
his
hands
.
Sed
non
allocatur
:
For
the
King
may
have
such
Liberties
by
the
suppression
of
Abbies
,
(
which
are
not
extinct
,
but
revived
per
Stat.
32
H.
8.
)
or
by
some
other
ways
,
and
it
shall
not
be
intended
to
extinct
unless
it
be
shewed
.
And
the
Bayliff
of
a
Liberty
may
well
have
Bayliff
of
a
Liberty
may
have
Deputy
.
a
Deputy
,
Cro.
Jac.
241.
Kent
and
Ellwis
.
Power
of
Bayliff
of
Franchises
and
Pleadings
.
The
Bayliff
of
a
Franchise
cannot
take
a
Difference
between
Bayliffs
of
a
Franchise
and
Sheriffs
Bayliffs
.
Bond
for
Appearance
in
the
Sheriffs
Name
;
but
Bayliffs
of
Hundreds
may
.
Vid.
3
Keb.
552.
Ellis's
Case
.
Hundreds
that
have
Retorn'
Brevium
are
Franchises
.
Hundred
by
Grant
,
that
hath
Bayliff
by
particular
Lord
,
is
but
his
Servant
,
and
the
Sheriffs
usually
makes
another
Bayliff
to
execute
there
.
But
a
Bayliff
of
an
Hundred
may
waive
his
Franchise
,
and
Arrest
as
Sheriffs
Bayliff
,
and
then
he
may
take
Obligat
'
in
the
Name
of
the
Sheriff
also
,
3
Kcb.
71.
Munday
and
Frogate
.
The
Bayliff
of
a
Liberty
must
Retorn
his
Precept
,
and
a
Bayliff
Itinerant
needs
not
,
2
Keb.
838.
Green
and
Jones
.
A
Plaint
being
before
the
Bayliffs
of
Bury
,
they
directed
a
Warrant
to
the
Under-Bayliffs
to
take
the
party
,
Ita
quod
habeant
Corpus
ejus
coram
Ballivis
ad
prox'
Cur'
tenend'
,
(
tal'
die
.
)
The
Under-Bayliffs
arrested
him
,
and
committd
him
to
Prison
,
sub
Custod
'
Def.
S.
T.
The
Action
on
the
Case
lies
not
against
the
Defendant
;
for
the
Prisoner
was
not
Committed
to
him
by
any
Lawful
Authority
;
it
was
Ita
qd
'
,
but
not
to
Commit
him
:
And
the
Action
lies
against
them
,
if
they
have
him
not
at
the
Day
,
Cro.
El.
743.
Baldry
and
Johnson
.
If
Execution
be
directed
to
a
Sheriff
,
to
make
Lord
of
the
Franchise
to
answer
for
his
Baylif●
Execution
within
a
Liberty
,
and
the
Sheriff
directs
his
Warrant
to
the
Bayliff
,
who
does
it
,
and
after
is
a
Fugitive
and
not
able
to
answer
for
it
,
the
Lord
of
the
Franchise
shall
answer
for
it
,
and
shall
be
liable
to
answer
for
his
Bayliff
,
2
Brownl.
50.
There
are
other
sorts
of
Bayliffs
,
which
are
Bayliffs
of
Fee
,
and
are
Officers
of
Fee
within
their
Jurisdiction
and
Precinct
.
And
for
the
Execution
of
Process
there
,
the
Sheriff
shall
not
write
or
send
his
Precept
to
these
Bayliffs
,
as
to
a
Bayliff
of
a
Franchise
,
but
as
to
the
Bayliff
of
Gildable
;
and
the
Sheriff
shall
return
his
Answer
,
Dalt
.
543.
and
make
his
Retorn
as
if
the
Sheriff
himself
had
served
the
Process
;
and
the
Retorn
thereof
shall
be
in
the
Name
of
the
Sheriff
,
and
shall
not
make
mention
of
the
Bayliff
of
Fee
:
But
if
such
a
Bayliff
will
not
Execute
the
Process
,
a
Non
omittas
shall
go
out
to
the
Sheriff
.
The
Mirror
of
Justices
saith
thus
:
If
the
Mirror
of
Just
.
lib.
4.
Bayliff
of
a
Franchise
does
not
make
Execution
of
a
Retorn
of
the
Sheriff
,
the
Sheriff
may
enter
into
the
Franchise
,
and
the
King
shall
recover
the
Seisin
,
and
so
that
shall
become
Guildable
which
before
was
Enfranchised
.
CHAP.
V.
Of
the
County
Court
.
The
Nature
of
it
.
It
s
Jurisdiction
,
as
to
the
Sum
it
holds
Plea
of
.
Of
the
time
and
place
.
The
Forms
of
the
Original
Process
.
Of
Execution
there
.
Of
the
County
Clerk
.
Of
Replevin
.
The
Sheriffs
Office
,
and
demeanour
therein
,
and
the
Retorns
thereof
,
what
are
good
,
or
not
.
Pone
.
Withernam
.
The
manner
of
Replevying
.
The
Retorno
habendo
.
Second
Deliverance
.
Property
.
Pledges
in
Replevin
.
The
Form
of
the
Entry
of
the
Plaint
.
The
Form
of
the
Precept
in
Replevin
.
The
Form
of
the
Bond
for
Security
.
Of
Accedas
ad
Curiam
.
Recordari
fac'
Loquelam
.
Of
the
Writ
of
Justicies
.
Of
the
Sheriff
Tourn
,
Jurisdiction
and
Pleadings
.
Of
the
County
Court
,
&c.
THis
Court
is
no
Court
of
Record
,
but
only
a
Court
Baron
,
and
the
Suitors
are
Judges
.
But
in
a
Redisseisin
the
Sheriff
is
Judge
,
by
the
Statute
of
Merton
,
cap.
3.
and
a
Writ
of
Error
lieth
of
his
Judgment
.
The
County-Court
is
incident
to
the
Office
Incident
to
the
Office
of
Sheriff
.
of
Sheriff
,
and
so
is
the
Entry
of
all
Proceedings
there
;
and
therefore
if
the
King
grant
the
Office
of
Clerkship
of
the
County
Court
to
M.
and
constitute
J.
S.
Sheriff
of
the
same
County
,
it
s
a
void
Patent
,
tho'
it
be
granted
when
the
Sheriffwick
is
vacant
,
yet
the
new
Sheriff
shall
have
it
.
And
in
all
Writs
directed
to
the
Sheriff
concerning
the
County-Court
,
the
King
saith
,
In
Comitatu
tuo
,
and
in
Retorns
of
Exigents
made
by
him
he
saith
,
Ad
Comitatum
meum
tent
'
.
In
False
Judgment
it
is
said
,
In
pleno
Comitatu
tuo
4
Rep.
Mitton's
Case
.
4
Inst.
266.
Recordari
facias
Loquelam
,
&c.
Sub
sigillo
tuo
,
&c.
Also
in
a
Precept
of
Tolt
,
to
remove
a
Plea
out
of
the
Court
Baron
into
the
County
Court
,
it
is
,
Summoneas
,
&c.
qd'
sit
ad
Comitatum
meum
.
And
it
is
the
Sheriffs
Court
,
tho'
the
Suitors
are
Judges
.
The
Style
of
the
Court
is
,
Buck's
.
Curia
prima
Comitatus
E.
L.
Mil'
,
Vicecomitis
Comitat'
praedict'
tent'
apud
B.
&c.
And
the
next
Court
,
Curia
secunda
,
and
so
forth
.
Tho'
it
be
said
commonly
,
that
the
Suitors
By
Prescription
the
Sheriff
may
be
Judge
.
are
Judges
;
yet
by
Prescription
the
Sheriff
may
be
Judge
,
as
it
was
in
Car.
2.
There
is
a
Court
called
Curia
Comitatus
,
in
the
County
Palatine
of
Durham
,
and
the
Sheriff
is
Judge
:
And
tho'
in
the
County
Court
the
Suitors
are
Judges
;
yet
by
Prescription
it
may
be
held
before
the
Sheriff
,
2
&
3
Ed.
6.
c.
25.
Vid.
Stat.
Mod.
Rep.
172.
As
a
Court
Baron
by
Special
Prescription
may
be
held
Coram
Seneschallo
:
So
in
Norton's
Case
,
Indictment
was
brought
of
Perjury
in
a
Plea
depending
in
the
County
Court
,
in
Action
on
the
Case
for
3
l.
Errors
assigned
were
,
First
,
It
is
not
said
how
the
Plea
was
depending
,
as
by
Justicies
or
Plaint
Entred
:
And
,
Secondly
,
It
is
said
,
in
the
County
Court
held
coram
the
Sheriff
&
Sectatoribus
,
and
saith
not
per
Consuetudinem
,
quae
Curia
concessit
,
3
Keb.
370.
Dom'
Rex
and
Norton
.
The
Jurisdiction
of
the
County
Court
.
This
Court
holdeth
no
Suits
of
Charters
for
Lands
,
or
for
Inheritance
,
or
to
make
several
Plaints
upon
one
entire
Debt
;
nor
any
Action
to
compel
one
to
render
an
Account
,
tho'
it
be
under
40
s.
because
the
Sheriff
cannot
assign
2
Inst.
380.
Auditors
,
who
are
Judges
of
the
Record
,
and
the
County
Court
is
no
Court
of
Record
.
And
they
cannot
hold
Plea
of
any
Debt
due
by
Record
.
In
Action
of
Trespass
there
holden
,
no
Force
shall
be
supposed
.
It
holdeth
no
Plea
of
Debt
or
Damages
to
the
value
of
40
s.
or
above
;
but
by
Justicies
he
may
.
Vid.
infra
.
Nor
of
any
Trespass
Vi
&
armis
;
because
a
Fine
is
due
therein
to
the
King
,
and
no
Court
2
Inst.
311.
can
assess
a
Fine
,
but
a
Court
of
Record
.
Yet
if
the
Debt
be
40
s.
or
above
,
and
the
Plaintiff
will
acknowledge
in
his
Declaration
the
receipt
of
so
much
as
to
bring
it
within
40
s.
in
this
case
the
Plaint
is
good
:
But
he
cannot
Id.
ibid.
split
a
Debt
into
several
Actions
,
and
if
he
do
,
the
Defendant
may
plead
the
same
to
the
Jurisdiction
of
the
Court
;
or
may
have
a
Prohibition
to
stay
that
Indirect
Suit
,
or
move
for
Attachment
against
the
Steward
.
It
is
holden
once
every
Month
,
upon
a
Day
Time
.
certain
,
the
Month
being
computed
according
to
28
Days
;
and
the
Reason
is
,
because
of
the
Writs
of
Exigents
,
which
must
be
Proclaimed
there
,
9
H.
3
c.
3.
2
Ed.
6.
c.
25.
Vide
tit
.
Outlawries
.
The
County
Court
is
kept
once
a
Month
at
a
Day
certain
;
because
the
Kings
Writs
of
Exigents
are
to
be
Proclaimed
there
,
and
the
Exigent
is
to
be
directed
to
the
Sheriff
in
this
Court
,
and
he
upon
the
Exigent
doth
proclaim
,
or
call
the
parties
(
Sued
in
Courts
above
)
to
render
their
Bodies
,
&c.
or
else
to
be
out
of
the
King's
Protection
.
And
the
Coroners
are
to
sit
with
the
Sheriff
at
every
County
Court
,
there
to
give
Judgment
upon
Outlawries
.
And
as
to
these
Matters
,
the
County
Court
is
a
Court
of
Record
.
But
in
London
,
the
Judgment
upon
Utlaries
is
given
by
the
Recorder
,
Co.
Litt.
288.
This
Court
may
be
kept
at
any
place
within
Place
.
the
County
,
at
the
Sheriffs
pleasure
;
but
not
out
of
it
.
But
by
Stat.
the
Sheriff
of
Northumberland
is
to
hold
his
County
Court
in
the
Town
or
Castle
of
Alnwick
,
and
in
no
other
place
.
The
Sheriff
of
Sussex
is
to
hold
his
County
Dalton
157
,
158.
Court
one
time
at
Chichester
,
and
another
time
time
at
Lewis
;
and
so
alternis
vicibus
.
The
Process
.
The
Original
Process
of
this
Court
,
(
viz.
)
Summon
,
Attachment
and
Distress
Infinite
.
A
Distringas
or
County
Warrant
,
is
a
Precept
issuing
out
for
a
Debt
under
40
s.
And
its
Form
is
thus
:
Praecept'
est
Ballivo
ibid'
,
Qd'
Distringat
F.
D.
per
omnia
bona
&
catalla
sua
,
qd'
sit
ad
prox'
Comitat'
meum
ad
respond
'
A.
B.
de
placito
debit'
,
&c.
Teste
,
&c.
If
on
Trespass
;
Praecept'
est
ibid'
,
Qd'
Attachiat
'
C.
D.
per
omnia
bona
&
catalla
sua
,
qd'
sit
ad
prox'
Comitat'
meum
de
placito
Debiti
,
or
Transgressionis
,
&c.
And
the
Goods
or
Chattels
,
whereby
the
Defendant
is
so
Attached
or
Distrained
,
the
Bayliff
shall
keep
them
till
the
next
County
Court
,
except
the
Defendant
replevy
the
same
by
two
Pledges
distrainable
within
the
County
;
which
Pledges
shall
become
Sureties
,
that
the
Defendant
shall
appear
at
the
next
Court
,
to
answer
the
Plaintiff
in
his
Plaint
:
But
if
he
do
not
replevy
the
Goods
,
and
that
the
Defendant
makes
default
at
the
next
Court
(
at
the
Day
given
him
by
the
Attachment
)
the
Court
shall
award
the
Goods
so
Attached
to
be
forfeited
,
and
shall
keep
the
Goods
so
forfeited
.
So
in
Distress
,
which
must
be
plevied
by
four
Mainpernors
.
If
the
Distress
be
mainprized
,
and
the
Defendant
makes
default
of
Appearance
,
the
Court
shall
amerce
the
Defendant
and
his
Mainpernors
.
And
in
both
Cases
the
Defendant
shall
be
Distrained
again
to
be
at
the
next
County
Court
.
And
the
Entry
is
thus
:
J.
S.
opp'
se
versus
C.
D.
de
placito
debiti
,
&c.
&
The
Entry
of
an
Alias
Distringas
.
ipse
non
venit
;
&
Ballivus
retornavit
,
qd'
distrinxit
eum
per
unum
bovem
pretii
5
s.
Et
manucapt'
per
E.
F.
G.
H.
I.
K.
L.
M.
ideo
in
misericordia
Et
sicut
prius
Distringatur
,
&c.
And
so
Process
shall
be
made
by
Distress
Infinite
.
Note
,
For
every
default
of
Appearance
the
Dalt
.
503
,
504.
Defendant
is
Distrainable
,
till
he
come
into
Court
.
Note
,
That
the
Goods
attached
or
distrained
in
the
County
Court
(
whether
upon
a
Justicies
,
or
otherwise
)
shall
be
forfeited
on
default
of
Appearance
,
by
the
Defendant
,
at
the
Day
given
him
by
the
Process
.
It
has
been
a
Question
,
How
Execution
shall
be
after
Recovery
in
County
Court
?
Not
by
Of
Execution
in
Court-Baron
.
Capias
is
agreed
,
except
in
Wales
.
But
by
Fitzherbert
20.
b.
and
Finch
68.
the
safest
way
(
in
this
Court
,
and
so
in
Hundred
Court
,
or
Court
Baron
)
is
to
have
an
Executione
Judicii
directed
to
the
Sheriff
,
&c.
and
then
the
Sheriff
may
make
Execution
,
as
in
a
Court
of
Record
,
by
Fieri
fac
'
,
or
Levari
.
If
the
Defendant
doth
not
appear
the
next
Duces
tecum
for
Non-appearance
.
Court
after
the
Distringas
executed
,
then
there
issues
out
a
Duces
tecum
to
cause
him
to
Appear
;
and
then
an
Alias
,
and
a
Pluries
duces
tecum
,
and
so
ad
infinitum
.
The
Sheriff
may
before
any
County
Court
Summons
.
award
a
Summons
to
his
Bayliff
,
Retornable
within
two
or
three
days
,
at
his
discretion
,
to
summon
the
Defendant
by
his
Goods
,
to
Answer
,
&c.
And
If
the
Bayliff
Retorn
Nihil
,
and
the
Plaintiff
removes
the
same
by
Pone
into
Pone
.
the
Common
Pleas
,
the
Court
shall
not
grant
a
Capias
,
4
Inst.
266.
The
Sheriff
before
the
next
Court
day
after
his
Election
,
must
depute
and
constitute
a
County
Clerk
to
keep
the
Court
;
and
the
Stat.
County
Clerk
.
1
H.
5.
cap.
4.
prohibits
such
a
County
Clerk
to
practice
as
an
Attorney
in
the
same
year
.
And
this
County
Clerk
ought
to
Retorn
no
Plaints
(
except
in
case
of
Replevins
)
out
of
Court
;
but
in
full
County
sedente
Curia
;
yet
it
s
now
done
otherwise
.
And
at
the
Adjorning
of
every
Court
he
must
Adjornment
of
the
Court
to
a
Day
certain
.
appoint
a
Day
certain
for
the
next
Court
,
to
the
intent
the
Country
may
know
at
what
time
to
resort
thither
,
to
hear
the
Kings
Writs
of
Exigents
,
and
Proclamations
Read
.
Of
Replevin
,
and
the
Sheriffs
Office
and
Demeanor
therein
,
and
of
the
Retorns
.
This
being
a
main
Branch
of
the
Sheriffs
Duty
as
to
the
County
Court
,
I
shall
treat
of
it
,
so
much
as
concerns
the
Sheriff
and
his
Office
.
Replevin
is
a
Writ
,
and
lieth
where
any
man
distrains
another
for
Rent
,
&c.
Then
he
who
is
distrained
,
shall
have
this
Writ
to
the
Sheriff
(
called
Replegiari
Facias
)
to
deliver
to
him
the
Distress
,
and
shall
find
Sureties
to
pursue
his
Action
;
or
if
he
pursue
it
not
,
or
it
be
found
and
adjudged
against
him
,
then
he
that
took
the
Distress
,
shall
have
again
the
Distress
;
and
this
is
called
the
Retorn
of
the
Beasts
;
and
in
such
a
Case
lies
the
Writ
de
Retorn'
Habend
'
.
This
is
when
Goods
are
replevied
by
Writ
,
and
is
at
the
Common
Law
.
This
Writ
is
Vicountiel
,
and
in
nature
of
a
By
Writ
.
Justicies
,
in
which
the
Viscount
shall
hold
Plea
in
any
value
,
and
is
not
Retornable
;
but
it
may
be
removed
into
the
Kings-Bench
or
Common-Pleas
by
Pone
:
By
the
Plaintiff
without
Cause
,
Pone
.
and
by
the
Defendant
with
Cause
shewn
in
the
Writ
.
Co.
Mag.
Chart.
339,340
.
If
a
Replevin
be
sued
by
Writ
,
and
the
Sheriff
retorn
that
the
Cattle
are
not
to
be
found
,
then
a
Witherman
shall
be
awarded
against
the
Defendant
;
and
if
a
Nihil
be
retorned
,
then
an
Alias
and
a
Pluries
Withernam
,
and
thereupon
Withernam
an
Exigent
.
If
the
Defendant
upon
the
Retorn'
Habend
'
adjudged
for
him
,
cannot
have
retorn
of
the
Beasts
;
and
upon
the
Retorn'
Habend
'
the
Sheriff
retorn
that
the
Cattle
,
first
taken
,
are
dead
,
he
may
have
a
Scire
Fac
'
against
the
Pledges
;
and
upon
Scire
fac.
a
Nihil
retorned
on
that
,
he
may
have
a
Scire
fac
'
against
the
Sheriff
;
for
insufficient
Pledges
are
no
Pledges
,
1
Brownl
.
rep.
168.
Replevy
by
Plaint
.
Replevin
by
Plaint
,
and
that
is
by
the
Stat.
of
Marlbridg
,
c.
21.
The
Sheriff
by
Plaint
made
without
Writ
,
may
either
by
Parol
or
by
Precept
command
his
Bayliff
to
deliver
them
,
i.
e.
to
make
Replevin
of
them
,
Col
2
Inst.
139
,
140.
When
the
Distress
is
taken
and
impounded
infra
Libertates
,
which
have
retorn
of
Writs
,
the
Sheriff
must
make
a
Warrant
to
the
Bayliff
of
the
Liberty
to
make
deliverance
;
and
if
he
will
not
,
the
Sheriff
may
enter
and
do
it
.
If
the
Distress
be
taken
extra
Libertates
,
and
impounded
within
,
the
Sheriff
upon
Plaint
made
,
may
presently
enter
and
make
deliverance
,
Co.
Mag.
Chart.
139.
If
they
are
impounded
in
a
Castle
or
House
,
Sheriff
may
break
Castle
,
House
or
Close
to
make
Replevin
.
the
Sheriff
may
break
it
,
and
make
Replevin
,
and
he
cannot
retorn
he
was
resisted
,
for
he
may
take
the
Posse
Comitat'
,
Cok.
2
Instit.
105
,
194.
If
the
Beasts
be
imparked
in
a
place
inclosed
which
had
a
Gate
open
,
and
the
Writ
comes
to
make
Replevin
,
and
the
owner
stands
at
the
Gate
to
shoot
him
,
he
may
break
the
Close
to
make
Replevin
,
2
Roll.
Abr.
565.
b.
For
necessity
the
Sheriff
may
enter
a
Plaint
Replevin
made
presently
.
before
himself
,
and
after
retorn
it
in
the
County
Court
,
that
so
the
Cattle
may
not
perish
,
1
Keb.
205.
He
may
take
a
Plaint
out
of
the
County
Court
,
and
make
Replevin
presently
,
and
not
stay
till
the
next
County
Court
,
which
is
holden
from
Month
to
Month.
Cattle
being
distrained
for
Rent
or
Damage
The
manner
of
Replevying
.
Fesant
,
&c.
The
Owner
of
the
Cattle
must
go
to
the
County
Clerk
(
or
some
Deputies
in
the
County
,
for
the
granting
out
of
Replevins
)
for
a
Replevy
to
be
directed
to
the
Bayliffs
to
replevy
them
;
and
the
Party
must
be
bound
in
an
Obligation
to
the
Viscount
to
prosecute
his
Action
against
him
,
or
them
that
did
take
the
Cattle
,
or
to
make
retorn
of
the
same
Cattle
to
the
Distrainer
,
if
he
by
Justification
or
Avowry
do
recover
.
And
if
he
pursue
it
not
,
or
be
found
against
him
,
then
he
that
ook
the
Distress
,
shall
again
have
the
Distress
,
and
shall
have
a
Writ
from
above
,
de
Retorn'
Habend
'
in
such
Retorn'
Habend'
.
case
.
If
the
Goods
cannot
be
taken
by
the
first
Replevin
,
then
issues
forth
an
Alias
,
then
a
Pluries
,
then
a
Toties
,
then
a
Withernam
.
If
the
Sheriff
retorn
that
he
cannot
replevy
the
Cattle
because
Retorn
.
that
they
are
Eloyned
(
or
he
cannot
have
the
view
of
them
)
for
the
Sheriff
must
make
enquiry
if
the
Retorn
be
true
;
and
if
so
,
then
he
must
make
a
Precept
to
the
Bayliff
in
Withernam
,
i.
e.
to
take
as
many
other
Cattle
,
and
he
may
have
an
alias
and
a
Pluries
Withernam
,
and
Withernam
so
in
infinitum
,
but
hath
no
other
remedy
in
the
County
.
This
sort
of
Replevin
may
be
retorned
out
of
the
County
into
the
Court
of
Common-Pleas
by
Re.
fa.
lo.
Recordare
fac'
Loquelam
.
The
Sheriff
upon
a
Retorn'
Habend
'
may
enquire
the
Kinds
of
the
Cattle
,
if
the
Count
or
Avowry
be
uncertain
,
1
Leon.
193.
Rigden
&
Palmer
.
In
a
Replevin
,
no
such
Beast
,
is
not
a
good
What
is
a
good
Retorn
in
Replevin
or
nor
.
Retorn
;
but
Averia
Elongata
,
or
Null'
Venit
ex
Parte
Querentis
ad
monstranda
Averia
.
2
Leon.
67.
Sheriff
on
Replevin
of
Goods
saith
,
that
none
came
to
shew
him
the
Goods
,
it
s
a
good
Retorn
,
1
Keb.
184.
for
he
cannot
know
the
Goods
without
shewing
of
the
Party
.
If
J.
S.
sue
a
Replevin
to
the
Sheriff
,
and
Sheriff
makes
Replevin
of
a
Stranger
,
he
is
a
Trespasser
.
shews
him
the
Cattle
of
J.
N.
and
saith
they
are
his
Cattle
,
and
he
makes
Replevin
of
the
Cattle
,
he
is
a
Trespasser
to
J.
N.
and
the
Sheriff
may
have
an
Action
of
Trespass
against
J.
S.
for
his
false
Information
:
For
the
Sheriff
at
his
Peril
must
take
notice
whose
Cattle
they
be
;
but
if
there
be
any
fraud
in
the
matter
,
he
may
aver
that
,
3
H.
7.
14
H.
4.
1
Brownl.
211.
Buckwood
and
Beal
.
If
a
man
have
Judgment
to
have
a
Retorn
upon
a
Nonsuit
in
a
Replevin
,
and
the
Plaintiff
brings
a
second
Deliverance
,
this
is
a
Supersedeas
of
the
Retorn
;
yet
the
Defendant
in
the
Replevin
shall
have
a
Writ
to
enquire
of
Damages
;
but
if
he
have
Judgment
in
the
second
Deliverance
,
then
it
shal
be
retorned
Irreplevisable
,
and
he
shall
recover
Damages
,
Hill.
43
Eliz.
D.
C.
Goldsborough
p.
185.
If
the
Sheriff
doth
not
his
Office
in
such
Cases
,
an
Attachment
to
the
Coroners
lies
against
him
,
Reg.
Orig.
81.
a.
As
to
the
Sheriffs
taking
Pledges
,
vid.
sab
titulo
Pledges
,
&
infra
.
If
the
Sheriff
retorn
fugavit
in
another
County
,
or
that
the
Bayliff
of
the
Liberty
retorns
elongata
,
or
that
he
cannot
have
the
view
,
in
all
these
Cases
a
Withernam
shall
be
awarded
,
1
Rep.
Withernam
145.
b.
Ann
Mayowes
Case
.
The
Writ
of
Withernam
ought
to
rehearse
the
Retorn
of
the
Sheriff
.
At
Common
Law
a
man
might
have
been
non-suited
in
Replevin
,
and
have
had
new
ones
in
infinitum
.
But
West
.
2.
c.
2.
restrains
the
Plaintiff
for
having
any
more
Replevin
after
No
more
Replevin
after
Non-suit
,
but
Second
Deliverance
.
Non-suit
,
but
gives
the
Writ
of
Second
Deliverance
,
Cok.
2
Inst.
240.
This
Writ
is
a
Supersedeas
in
Law
to
the
Sheriff
,
that
he
make
no
Retorn
to
the
Defendant
on
the
former
Non-suit
,
Cok.
2
Inst.
341.
This
is
taken
away
as
to
Avowry
for
Rents
,
by
2
Stat.
K.
Charles
2.
In
a
Replevin
if
the
Process
continue
until
a
Pluries
issue
out
of
Chancery
,
and
the
Sheriff
retorn
Retorn
that
the
Defendant
claims
Property
.
upon
this
in
B.
that
the
Defendant
claims
property
;
altho'
no
day
is
expresly
given
by
this
Writ
to
the
Parties
,
but
to
the
Sheriff
only
to
excuse
his
Contempt
for
not
serving
the
Process
before
;
yet
upon
the
retorn
of
this
Writ
the
Parties
may
appear
and
Plead
(
viz.
)
The
Plaintiff
may
declare
,
and
the
Defendant
may
plead
to
it
,
and
it
shall
not
be
erroneous
;
for
there
,
is
no
other
Writ
to
be
served
after
this
Writ
;
therefore
if
the
Parties
might
not
plead
upon
this
,
it
would
be
a
great
mischief
.
So
if
the
Pluries
be
retorned
Tres
Michaelis
,
and
nothing
is
done
till
Paschoe
afterwards
,
yet
at
this
Term
the
Parties
may
appear
and
plead
if
they
will
,
1
Rol.
Abr.
581.
Gawen
and
Ludlow
.
Where
the
Defendant
,
when
the
Sheriff
comes
Where
in
a
Replevin
the
claim
of
Property
by
the
Defendnat
shall
hinder
the
delivery
of
the
Goods
by
the
Sheriff
.
to
make
Replevin
,
claims
Property
,
the
Sheriff
cannot
proceed
;
for
it
is
a
Rule
in
Law
,
the
Property
ought
to
be
tried
by
Writ
;
therefore
in
that
Case
,
where
the
Trial
is
by
Plaint
,
the
Plaintiff
may
have
a
Writ
de
Proprietate
Probanda
directed
to
the
Sheriff
to
try
the
Property
;
and
if
it
be
found
for
the
Plaintiff
,
the
Sheriff
is
to
make
deliverance
;
if
for
the
Defendant
,
then
he
can
no
further
proceed
,
Cok.
Litt.
145.
b.
And
to
try
the
Propersy
,
the
Sheriff
ought
to
take
with
him
Custod
'
Placit'
Coron'
.
Dier.
173.
In
Replevin
the
Plaintiff
claims
Property
,
and
thereupon
a
Writ
issues
to
the
Sheriff
to
try
the
value
,
2
Keb.
550.
Wetherlyes
Case
.
Where
one
sues
a
Replevin
,
but
hath
not
the
delivery
of
the
Goods
,
and
the
other
Avoweth
,
and
the
Plaintiff
sheweth
the
Defendant
is
yet
possess'd
of
the
Goods
,
&c.
and
prays
that
the
Defendant
may
gage
Deliverance
;
then
he
shall
Gage-deliverance
.
put
in
Sureties
and
Pledges
for
the
deliverance
,
and
a
Writ
shall
go
forth
for
the
Sheriff
to
deliver
them
.
Where
the
Replevin
is
by
Plaint
,
there
it
may
be
removed
out
of
the
County
into
the
Common-Pleas
by
Recordare
,
and
the
Sheriff
hereupon
is
Recordare
.
to
summons
the
other
Party
to
be
in
the
Common-Bench
or
B.
R.
at
a
day
Certain
;
and
of
all
this
he
is
to
make
Certificate
under
his
own
Seal
,
and
the
Seals
of
four
Suitors
of
the
same
Court
.
In
Replevin
the
Sheriff
ought
to
take
two
Two
sorts
of
Pledges
in
Replevin
.
sorts
of
Pledges
by
the
Common
Law
,
Pledges
de
Prosequendo
;
and
by
the
Statute
,
Pledges
de
Retorn'
Habend'
,
Cok.
Com'
145.
b.
And
Note
,
The
Sheriff
must
take
Sureties
and
not
a
Pawn
.
Therefore
where
one
brought
Replevin
,
and
the
value
of
the
Goods
taken
was
20
s.
and
the
Bayliff
took
3
l.
10
s.
for
Pledges
,
and
not
Sureties
,
and
the
Party
brought
an
Action
on
the
Stat.
W.
2.
and
resoved
that
the
Action
lies
,
Jones
p.
378.
Cro.
Car.
446.
Moyser
and
Grey
.
If
Pledges
de
Prosequendo
are
not
found
,
and
Judgment
given
,
the
Process
is
erroneous
,
9
Rep.
Husseys
Case
.
But
these
Pledges
may
be
found
to
the
Sheriff
,
May
be
found
at
any
time
before
Judgment
.
Scire
fac
.
against
the
Sheriff
upon
retorn
of
nihil
as
to
the
Pledges
.
or
in
Court
,
at
any
time
before
Judgment
,
but
not
after
.
If
upon
the
Writ
to
have
retorn
of
the
Beasts
of
the
Pledges
,
the
Sheriff
retorn
nihil
,
then
may
the
Plaintiff
have
a
Scire
fac
'
against
the
Sheriff
,
qd'
reddat
ei
tot
Averia
,
or
tot
Catalla
;
and
so
of
a
Bayliff
of
a
Franchise
,
Cok.
Mag.
Chart.
340.
But
as
to
the
Pledges
de
Retorno
Habendo
,
they
are
given
by
the
Statute
of
W.
2.
c.
2.
and
an
Action
is
given
against
the
Sheriff
if
they
are
not
found
;
but
this
does
not
make
the
Proceedings
erroneous
.
Per
totam
Curiam
.
Jones
p.
439.
Grosse
and
Boscawen
.
So
is
Tregooose
and
Winnell's
Case
.
Pledges
in
Replevin
on
Retorno
habendo
were
not
taken
by
the
Sheriff
,
according
to
the
Statute
of
W.
2.
c.
2.
after
the
Plaint
was
removed
into
the
Common-Bench
by
Recordare
;
yet
Pledges
may
be
found
by
the
Court.
For
the
Pledges
given
by
the
Statute
of
W.
2.
are
only
to
give
Remedy
against
the
sheriff
for
his
neglect
,
and
the
Pledges
may
be
found
at
any
time
before
Judgment
,
Cro.
Car.
594.
Tregoose
and
Winnell
.
If
a
Withernam
be
awarded
for
the
Plaintiff
Withernam
.
Retron
.
of
the
Beasts
of
the
Desendant
,
and
the
Sheriff
Retorns
he
had
taken
the
Beasts
of
the
Defendant
in
Withernam
;
but
none
comes
from
the
Plaintiff
to
have
them
.
And
now
the
Plaintiff
prays
a
Writ
to
the
Sheriff
;
to
deliver
the
Withernam
to
him
;
and
the
Defendant
prays
,
that
the
Plaintiff
gage
Deliverance
;
and
saith
,
that
part
of
the
Beasts
which
he
took
are
dead
by
the
default
of
the
Plaintiff
,
and
the
remnant
he
is
ready
to
deliver
.
In
this
Case
the
Plaintiff
shall
In
what
case
the
Plaintiff
shall
not
have
deliverance
of
the
Withernam
to
him
.
not
have
Deliverance
of
the
Withernam
to
him
;
but
it
shall
remain
in
the
custody
of
the
Sheriff
,
until
a
Writ
issue
to
the
Sheriff
,
for
the
Plaintiff
to
have
Deliverance
of
his
Beasts
;
and
then
shall
come
in
debate
in
whose
default
the
Beasts
are
dead
,
44.
Ass.
15.
Note
,
If
J.
S.
be
Sheriff
,
and
the
Distress
be
taken
by
him
,
there
the
Writ
or
Plaint
shall
be
in
Common
Form
,
naming
the
Sheriff
by
his
Christian
name
and
Sir-name
—
quae
J.
S.
cepit
,
and
not
—
quae
tu
ipse
cepists
;
and
the
Sheriff
in
that
case
ought
to
make
Deliverance
,
C.
Magna
Charta
139.
Reg.
Orig.
81.
b.
A
Declaration
in
Replevin
was
for
100
Ewes
Delivery
by
the
Sheriff
must
be
according
to
the
Writ
.
and
Weathers
,
and
it
doth
not
appear
how
many
there
be
of
Ewes
,
and
how
many
there
be
of
Weathers
,
and
the
Sheriff
is
bound
to
make
delivery
of
the
one
sort
and
of
the
other
:
For
the
Delivery
of
the
Sheriff
must
be
according
to
the
Writ
,
&c.
and
the
Declaration
was
held
ill
.
But
Ewes
without
addition
had
been
good
enough
,
and
the
Sheriff
must
have
delivered
the
one
sort
and
the
other
,
if
the
Writ
be
for
Oves
matrices
the
Sheriff
cannot
deliver
Weathers
:
So
if
for
black
Horses
the
Sheriff
cannot
deliver
white
,
but
is
subject
to
Action
on
the
Case
.
Allen
p.
33.
Moor
and
Clypsam
.
Of
Retorns
.
De
Pone
.
The
Sheriff
Retorns
,
He
had
attached
the
Goods
per
plegios
,
and
the
Form
of
such
Retorn
,
vide
2
Sanders
333.
De
Recordare
fac'
Loquelam
,
Dalt
.
c.
72.
Retorn'
sur
Replevin
de
retorn'
habend'
,
Ibid.
c.
73.
Retorn'
averia
clongata
,
vid.
le
Form
ibid.
Retorn'
,
quod
accessi
ad
locum
,
&
visum
habere
non
potui
,
Ibid.
Where
the
Plaint
is
in
the
County
Court
,
of
the
taking
and
withholding
Cattle
and
Goods
;
the
Entry
is
thus
:
JS.
queritur
versus
J.
D.
de
pl'
ito
Captionis
&
injustae
detentionis
averiorum
ipsius
J.
S.
contra
vad'
&
pleg'
.
Et
invenit
plegios
tam
de
clamore
suo
prosequendo
,
quam
de
averiis
suis
retornand'
,
si
retorn'
inde
adjudicetur
,
(
viz.
)
J.
D.
&
R.
H.
And
the
Precept
of
Replevin
is
thus
:
War'ss
.
A.
B.
Miles
,
Vic'
Comitat'
praedict'
Ballivo
Handred
'
de
H.
nec
non
J.
S.
Ballivo
mec
hac
vice
;
Et
eorum
ulterius
conjunctim
&
divisim
,
salutem
.
Quia
W.
P.
invenit
mihi
sufficien'
securitatem
tam
de
clamore
suo
prosequendo
,
quam
de
averiis
suis
,
videlicet
,
bove
uno
quem
J.
C.
cepit
&
injuste
detinet
,
ut
dicitur
retorn'
,
si
retorn'
inde
adjudicetur
.
Ideo
ex
parte
Dom'
Regis
vobis
&
utrique
vestrum
conjunctim
&
divisim
mando
,
qd'
repleg'
&
delib'
fac'
praefat'
W.
P.
bovem
suum
praedict'
,
(
or
,
averia
sua
praedict'
,
if
several
;
)
Et
quod
ponat'
seu
,
&c.
per
vad'
&
salvos
plegios
praefat'
J.
C.
ita
qd'
sit
ad
prox'
Comitat'
meum
apud
,
&c.
tenend'
ad
respondend'
praefat'
W.
de
pl'ito
captionis
&
injustae
detentionis
bovis
sui
praedict'
.
Et
qualit'
,
&c.
mihi
ad
prox'
Comitat'
meum
certificetur
seu
,
&c.
sub
periculo
incumbente
;
Dat'
sub
sigillo
Officii
mei
die
,
&c.
Per
me
A.
B.
Mil'
,
Vicecom'
.
If
this
Replevin
be
granted
by
the
Deputy
,
then
the
must
set
his
Name
to
the
Replevin
thus
:
Per
me
J.
A.
unum
Deput'
dict'
Vicecom'
,
secundum
formam
Statliti
.
The
Sheriff
,
or
his
Deputy
,
before
this
Precept
made
,
ought
to
take
(
a
Bond
or
Pledge
)
sufficient
Security
De
prosequen
'
,
or
Retorno
habendo
.
The
Form
of
it
is
thus
:
NOverint
Universt
per
presentes
me
Wilt'
P.
de
C.
&c.
teneri
&
firmit'
obligari
A.
B.
Mic
Dic'
,
Com'
pred'
in
decem
libris
bone
,
&c.
solvend'
eidem
Dicecomiti
,
&c.
Ad
quam
quidem
soluc̄onem
,
&c.
THe
Condition
,
&c.
is
such
,
That
if
the
above-bounden
W.
P.
do
appear
at
the
next
County
Court
to
be
holden
at
,
&c.
and
then
and
there
do
prosecute
his
Action
with
effect
against
J.
C.
for
wrongful
taking
and
detaining
of
his
Cattel
,
(
viz.
one
Gelding
,
&c.
)
as
is
alledged
,
and
do
also
made
Retorn
thereof
,
if
Retorn
thereof
shall
be
adjudged
by
Law
,
and
also
do
save
and
keep
harmless
and
indemnified
the
above
named
sheriff
,
Under-sheriff
,
and
Bayliffs
,
for
,
touching
and
concerning
the
delivery
of
the
said
Cattle
,
That
then
,
&c.
If
the
Sheriff
delivered
Goods
,
and
the
Plaintiff
becomes
Nonsuit
,
if
the
Defendant
be
ready
in
Court
to
avow
the
Taking
,
then
there
shall
be
awarded
to
the
Defendants
Retorn
of
the
Beasts
in
this
manner
.
A.
B.
Mil'
,
Com'
praedict'
Ballivo
Hundred
'
de
H.
&c.
Vide
Dalt
.
523.
Accedas
ad
Curiam
,
Recordar'
fac'
Loquelam
.
If
False
Judgment
be
given
in
any
other
Court
Baron
than
in
the
Sheriffs
County
Court
,
then
the
Writ
of
Faux
Judgment
is
called
Accedas
ad
Curiam
.
By
this
Writ
the
Sheriff
must
make
a
Record
of
the
Plea
,
or
Suit
,
in
the
presence
of
the
Suitors
'
,
and
annex
the
Record
so
made
to
the
back
of
the
Writ
,
and
Retorn
and
certifie
the
same
under
Seal
,
and
the
Seals
of
the
four
Suitors
.
Note
,
Nothing
but
the
Plaint
shall
be
removed
,
if
they
be
at
Issue
.
The
Form
of
the
Retorn
of
the
Accedas
,
vid.
Wilk
.
and
Dalton
200.
Vide
Greenwood
of
Courts
,
and
Dalt
.
c.
60.
And
vid.
Greenwood
of
Recordar'
fac'
Loquelam
,
and
Dalt
.
201
,
242.
It
's
a
good
Retorn
,
that
after
the
receipt
of
Retorn
.
the
Writ
,
and
before
the
retorn
thereof
,
no
Court
was
holden
,
or
that
the
Lord
would
not
hold
the
Court
,
or
that
the
Suitors
would
not
deliver
him
the
Record
.
The
Form
of
the
Retorn
of
a
Pone
in
Replevin
,
vid.
Dalt
.
c.
70.
The
Form
of
a
Recordar'
fac'
Lequelam
,
Id.
c.
72.
The
Sheriff
must
openly
read
this
Writ
in
Court
,
and
retorn
the
same
under
his
own
Seal
,
and
the
Seals
of
four
Suitors
,
and
to
summon
the
Defendant
to
appear
at
the
Day
of
the
Retorn
.
Idem
.
The
Retorn
must
be
,
Recordari
feci
Loquelam
,
quae
est
in
eodem
Comitat'
coram
Sectatoribus
Curiae
;
(
and
not
,
coram
me
,
)
Id.
ibid.
On
this
Writ
he
may
retorn
Tradè
.
The
Sheriff
may
send
an
Accedas
ad
Curiam
by
a
Servant
,
and
need
not
deliver
it
in
person
;
as
Co.
Burwell's
Case
,
3
Keb.
249.
Reg.
Orig.
96.
Of
the
Writ
of
Justicies
.
This
Writ
issues
out
of
Chancery
directed
to
the
Sheriff
,
giving
him
Power
to
hold
Plea
in
this
Court
for
Actions
of
40
s.
or
above
,
in
Debt
,
Detinue
,
Case
,
&c.
and
other
Actions
personals
.
It
is
so
called
,
because
its
a
Commission
(
and
not
an
Original
)
to
the
Sheriff
to
do
a
man
Right
aad
Justice
;
it
is
Vicountiel
,
and
not
Retornable
.
And
tho'
it
be
directed
to
the
Sheriff
,
yet
the
Suitors
are
Judges
,
and
the
Writ
of
Faux
Judgment
Retorn
.
lies
on
their
Erroneous
Judgment
;
and
it
requires
no
Retorn
,
unless
the
Action
be
removed
by
a
Writ
of
Recordare
,
and
then
the
Writ
must
be
Retorned
,
together
with
the
Record
,
Fitzh
.
N.
B.
The
Form
is
thus
in
Debt
:
REx
Vic'
Surr
'
,
salutem
.
Praecipimus
tibi
qd'
Justicies
A.
quod
juste
&
sine
dilatione
redd'
B.
40
s.
quos
ei
debet
ut
dicitur
,
sicut
rationabiliter
monstrare
poterit
,
qd'
ei
redd'
debet
ne
amplius
inde
clamorem
audiamus
pro
defectu
justitiae
,
&c.
And
several
other
Forms
.
Vid.
Fitzh
.
N.
B.
pertotum
.
In
a
Justicies
;
the
Justicies
may
be
holden
of
Accompt
;
so
of
Admeasurement
of
Dower
,
Admeasurement
of
Pasture
,
when
a
Commoner
puts
in
more
Cattle
than
he
ought
;
so
of
a
Writ
of
Covenant
,
Dalt.
504.
So
Justicies
de
Curia
claudenda
,
that
is
,
where
a
man
ought
to
Inclose
his
Ground
against
his
Neighbour's
Ground
;
so
of
Debt
,
for
Money
,
or
other
Goods
,
and
Detinue
:
So
a
Justicies
of
Nusance
;
of
Trespass
;
by
Justicies
of
Trespass
the
Sheriff
may
hear
and
determine
of
the
Trespass
by
an
Enquest
of
Twelve
Men
,
according
to
the
Order
of
Common
Law
:
And
the
Plaintiff
may
Count
to
his
Damage
of
20
l.
or
more
.
But
if
it
be
vi
&
armis
,
or
contra
pacem
,
the
Sheriff
cannot
determe
it
,
therefore
that
is
usually
omitted
.
The
Sheriff
may
hold
Plea
of
a
Bond
of
1000
Marks
,
&c.
Justicies
for
40
l.
was
held
and
determined
before
the
Undersheriff
,
in
the
absence
of
the
Sheriff
;
and
a
Writ
of
Faux
Judgment
lies
,
and
not
a
Writ
of
Error
,
2
Leon.
p.
34.
Sheriffs
Tourn
.
The
Torun
is
a
Court
of
Record
,
holden
before
the
Sheriff
,
Magn.
Chart.
c.
17.
Leet
is
derived
out
of
the
Sheriffs
Tourn
,
and
The
Nature
of
it
.
after
the
grant
of
this
derivative
Leet
,
the
Sheriff
in
his
Tourn
is
not
to
meddle
in
the
reach
of
this
Leet
;
except
in
case
of
Negligence
of
the
Leet
,
and
unless
it
be
where
the
Leet
is
forfeited
into
the
King's
hands
.
If
one
be
under
no
particular
Leet
,
he
is
within
the
Sheriffs
Tourn
.
And
2
Roll.
Rep.
74.
the
Sheriffs
Tourn
is
the
supream
Leet
of
the
County
.
The
Style
is
,
Vic'
France-pleg'
Dom'
Regis
tent'
apud
L.
coram
Style
.
Vicecom'
in
Torno
suo
,
&c.
and
not
Torn'
Vic'
tent'
die
apud
L.
Or
,
Cur'
visus
Franc'
Dom'
Regis
apud
B.
coram
Vicecom'
in
Torno
suo
,
and
not
Tornum
Vicecomitis
Tent'
,
&c.
for
Tornum
est
nisi
perambulatio
.
The
Tourn
is
inciden
tot
the
Office
of
Sheriff
,
4
Rep.
33.
Mitton's
Case
.
-
The
Jurisdiction
in
respect
of
the
-
things
Presentable
.
-
place
where
.
What
things
are
Inquirable
in
the
Sheriffs
Tourn
,
and
what
not
.
Nothing
shall
be
Inquired
before
the
Sheriff
in
the
Tourn
,
but
Actions
Popular
,
Common
Nusances
,
Affrays
and
Blood-shed
,
4
H.
6.
10.
Assault
made
on
a
man
is
not
Inquirable
there
,
it
being
but
a
Tort
to
a
particular
person
,
for
which
Trespass
lies
,
4
H.
6.
10.
The
stopping
of
Water
;
which
is
a
Nusance
to
the
Country
People
,
may
be
Inquired
there
;
for
it
is
popular
:
So
of
a
Bridge
,
4
H.
6.
10.
They
may
amerce
for
Common
Nusances
;
and
so
may
Stewards
of
Leets
,
notwithstanding
the
Stat.
of
Marlbr
.
c.
18.
He
may
Inquire
de
Assisa
panis
,
and
Cervitia
non
observata
,
by
Stat.
Walliae
in
Magn.
Charta
46.
Coke
.
If
he
find
in
his
Tourn
,
that
a
person
hath
erected
a
Purpresture
in
the
King's
HIgh-way
,
he
may
abate
it
,
29.
Ed.
3.
21.
b.
What
is
Presentable
in
a
Franchise
;
as
default
In
what
cases
what
is
presentable
in
a
Franchise
,
is
presentable
in
a
Tourn
,
or
not
.
in
Repairing
a
Cawsey
is
not
presentable
in
the
Tourn
,
because
out
of
his
Jurisdiction
being
in
the
Franchise
:
But
if
the
default
be
in
the
Lord
for
not
Repairing
it
,
this
may
be
presented
in
the
Tourn
;
because
the
Franchise
was
first
derived
out
of
the
Tourn
,
10
H.
4.
4.
17
Jac.
B.
R.
Loader
and
Samuell
.
Where
and
what
Inquisitions
or
Presentments
taken
in
the
Sheriffs
Tourn
,
shall
be
presented
to
the
Justices
of
Peace
,
and
how
they
shall
proceed
upon
them
.
By
the
Statute
of
1
Ed.
4.
c.
2.
the
Presentments
shall
be
by
the
Sheriff
at
the
next
Quarter-Sessions
,
and
there
shall
be
Inrolled
;
and
upon
this
they
assess
the
Fines
and
Amerciaments
,
and
shall
make
Process
to
levy
it
to
the
use
of
the
Sheriff
,
Jones
300.
Griffith
and
Bedle.
Sheriffs
Tourn
,
when
and
where
to
be
kept
.
By
the
Statute
of
21
Ed.
3.
c.
15.
the
Tourn
ought
to
be
kept
infra
mensem
post
Festum
Paschae
,
&
post
Festum
Sancti
Michaelis
,
31
Ed.
3.
c.
13.
Who
shall
be
amerced
for
not
coming
to
the
Sheriffs
Tourn
,
or
not
.
Not
a
Baron
;
not
Tenants
in
Ancient
Demesn
.
I
shall
cite
a
Case
or
two
as
to
Pleading
in
Actions
about
Americaments
,
for
further
Explication
.
Trespass
for
taking
a
Bullock
.
Defendant
Justifieth
,
because
at
the
Sheriffs
Tourn
,
held
infra
mensem
Paschae
,
(
viz.
)
18
Apr.
the
Plaintiff
was
presented
for
not
appearing
at
the
said
Tourn
,
being
debito
modo
summonitus
,
and
Amerced
by
the
Jury
,
which
was
affeered
by
four
of
the
Jury
at
40
s.
And
after
at
the
next
Sessions
of
the
Peace
,
(
viz.
)
22
Apr.
it
was
certified
and
ratified
by
such
Justices
of
the
Peace
;
whereupon
the
Steward
made
a
Warrant
to
him
to
levy
it
,
and
so
sold
it
.
The
Plaintiff
demurrs
:
1.
Because
the
Defendant
doth
not
alledge
,
that
the
Tourn
was
kept
infra
mensom
post
Festum
Paschae
;
but
infra
mensem
Paschae
,
which
may
as
well
be
before
Easter
as
after
,
21
Ed.
3.
15.
2.
Because
the
Americament
is
alledged
to
be
made
by
the
Jury
,
and
affeered
by
four
of
the
Jurors
,
where
it
always
ought
to
beassessed
by
the
Court
;
for
its
a
Judicial
Act
,
and
shall
be
affeered
by
the
Affeerers
appointed
,
Lib.
Intr.
119.
Affeerment
.
3.
That
the
Amerciament
was
levied
by
the
Defendant
,
as
Bayliff
by
Warrant
from
the
Steward
of
the
Court
,
where
(
by
the
Statute
of
1
Ed.
4
)
it
is
appointed
,
that
no
Fine
or
Americament
in
the
Tourn
shall
be
levied
,
unless
it
be
certified
at
the
next
Sessions
of
the
Peace
by
Indenture
,
and
Enrolled
,
and
by
Process
made
from
the
Justices
to
the
Sheriff
,
&c.
Griffith
and
Bedle
,
Cro.
Car.
275.
Judgment
for
the
Plaintiff
.
In
Trespass
,
the
Defendant
Justifies
for
an
Amerciament
set
in
the
Sheriffs
Tourn
,
and
Exceptions
were
taken
to
it
:
1.
Because
he
Justified
by
Praecipe
to
him
lawfully
granted
,
and
saith
not
at
what
place
.
2.
He
prescribes
for
a
Tourn
to
be
held
,
and
doth
not
shew
any
,
or
what
Estate
.
And
by
Hutton
,
a
Prescription
for
a
Tourn
,
Prescription
by
a
Que
Estate
.
or
an
Hundred
Court
,
by
a
que
Estate
is
naught
,
because
it
lies
in
Grant
,
and
is
not
manureable
;
but
he
ought
to
have
said
,
That
the
King
,
and
all
they
that
were
seised
of
the
said
Hundred
have
had
,
and
from
the
time
,
&c.
And
per
Cur.
Except
he
shewed
before
whom
the
Tourn
was
held
,
it
was
naught
;
and
it
ought
to
be
holden
before
the
Sheriff
,
1
Brownl.
198.
Darney
and
Hardington
.
Oath
of
Allegiance
to
be
taken
every
Sheriffs
Tourn
,
C.
Magna
Charta
73
,
147
,
148.
Hundred
Courts
.
Vid.
suprà
tit
.
Bayliffs
.
It
is
derived
out
of
the
County
Court
,
for
the
Ease
of
the
People
,
as
the
Leet
was
out
of
the
Tourn
.
The
Style
is
thus
:
Curia
E.
C.
Mil'
,
Hundredi
sui
de
B.
in
Comitat
'
B.
tent'
,
&c.
coram
A.
B.
Seneschallo
ibid
'
.
Vide
pluis
4
Inst.
267.
And
the
Forms
of
proceedings
in
this
Court
.
Vide
Wilkinson
.
CHAP.
VI.
Of
the
Original
Process
in
Real
Actions
and
Personal
Actions
,
with
the
Retorns
,
as
Summons
,
Attachment
,
&c.
Of
Mean
Process
,
what
Arrest
by
the
Sheriff
or
Bayliff
shall
be
good
or
not
:
Of
the
Bayliffs
shewing
his
Warrant
:
What
Arrest
is
good
as
to
the
time
of
the
Arrest
,
before
or
after
the
Retorn
,
in
respect
of
the
persons
Arrested
,
who
are
priviledged
or
protected
from
Arrests
or
not
,
in
regard
of
Persons
or
Courts
:
where
Arrest
shall
be
Lawful
or
not
,
in
respect
of
the
Warrant
.
Of
Warrants
to
Special
Bayliffs
or
known
Bayliffs
:
of
Pledges
de
Prosequendo
.
Of
Original
Process
.
LET
it
be
observed
that
regularly
Writsare
directed
to
the
Sheriffs
or
Coroners
,
but
in
special
Cases
to
the
Plaintiff
himself
or
to
others
;
to
the
Party
,
as
a
Prohibition
,
ne
exeat
Regnum
;
to
others
as
to
Judges
Temporal
and
Ecclesiastical
or
Civil
,
to
Serjeant
at
Armes
,
to
Mayor
and
Bayliffs
;
and
where
the
Sheriff
is
Judge
of
the
Court
,
a
Writ
which
should
have
been
directed
to
him
,
shall
be
directed
to
the
Serjeants
of
the
Mace
,
i.
e.
where
there
are
such
Serjeants
,
Pract.
Reg.
345.
The
Original
Process
in
Real
Actions
is
a
Summons
,
so
in
all
Personal
Actions
except
in
Trespass
,
and
in
that
there
is
no
Summons
;
but
Attachment
and
Distress
in
a
Real
Action
,
the
Sheriff
shall
summons
the
Tenant
upon
the
Land
in
demand
;
but
in
Personal
Actions
the
Sheriff
must
summons
the
Defendant
by
his
Person
:
And
in
a
Praecipe
there
ought
to
be
two
Summoners
,
i.
e.
two
good
substantial
Neighbours
.
If
the
Tenant
be
sufficient
,
he
must
retorn
two
common
Pledges
for
the
Plaintiff
,
and
then
the
names
of
the
Summoners
thus
,
-
Respons
'
A.
B.
Vic'
Comit'
infra
scripi'
plegij
de
prosequendo
.
-
John
Doe
.
-
Rich.
Roe
.
-
Summonitores
infra
nominati
,
J.
S.
the
Defendant
.
-
W.
Browne
.
-
J.
Cook
.
But
if
the
Tenant
(
or
Defendant
)
be
insufficient
,
then
the
Retorn
must
be
thus
.
-
Respons
'
A.
B.
Vic'
Com'
infra
script'
plegij
de
prosequend'
.
-
J.
Doe
.
-
R.
Roe
.
Infra
nominatus
J.
S.
nihil
habet
in
Balliva
mea
per
quod
(
or
unde
)
summoniri
potest
,
nec
est
invent'
.
in
eadem
.
(
If
it
be
in
any
Real
Action
,
or
in
any
Action
of
Annuity
,
Debt
,
Covenant
,
or
other
Writ
where
Summons
lieth
.
)
If
in
Trespass
,
it
is
thus
,
Infra
nominatus
C.
D.
nihil
habet
in
Balliva
mea
,
per
qd'
Attachiari
possit
,
nec
est
invent'
in
Balliva
mea
.
If
two
Defendants
,
name
them
;
if
more
,
name
the
two
&
caeteri
Defendantes
infra
nominati
nihil
habent
.
If
upon
Distress
,
then
thus
,
Infra
nominat'
A.
B.
nihil
habet
in
Terris
,
Tenementis
&
Hereditamentis
infra
scriptis
per
quod
ipsum
distringere
possum
.
If
the
Sheriff
will
delay
the
execution
of
the
Writ
he
may
return
it
in
two
manners
.
1.
Infra
nominat'
J.
S.
non
invenit
mihi
pleg'
de
prosequendo
;
for
in
all
si
fecerit
te
securum
.
The
Sheriff
is
to
take
Sureties
or
Pledges
of
the
Plaintiff
,
or
else
he
need
not
execute
the
Writ
.
2.
Istud
Breve
mihi
deliberat'
fuit
,
(
or
mihi
venit
)
adeo
tarde
,
qd'
illud
exequi
non
potui
propter
Brevitatem
temporis
.
And
the
Sheriff
may
retorn
tarde
in
every
Writ
,
except
in
an
Attachment
and
in
a
Capias
.
But
these
Retorns
must
be
true
,
or
else
the
Sheriff
is
punishable
.
Attachment
is
by
goods
and
differs
from
an
Arrest
which
is
only
of
the
Body
of
a
Man
.
The
Form
of
the
Attachment
is
,
Pone
per
vadios
&
salvos
plegios
B.
qd'
sit
coram
,
&c.
ad
respond'
A.
de
placito
,
&c.
Attachment
may
be
made
by
Pledges
as
well
as
by
Goods
(
scilioet
)
by
finding
Pledges
or
Sureties
to
appear
.
The
Pledges
shall
not
be
bound
in
any
sum
,
as
Mainpernors
are
,
and
they
shall
be
amerced
,
if
he
appears
not
.
Where
the
Writ
is
,
Pone
per
vadios
&
salvos
plegios
,
there
if
the
Sheriff
find
the
Party
,
he
may
attach
him
by
hhis
Pledges
;
if
he
find
him
not
,
he
may
attach
him
by
his
Goods
.
Fitzh
.
Retde
Vic.
57.
For
Offences
against
the
Crown
which
touch
Life
and
Member
,
the
Attachment
shall
be
by
the
Body
.
If
the
Defendant
be
attached
by
his
Goods
,
the
Retorn
must
be
J.
D.
infra
nominatus
,
Attachiatus
est
per
unam
patellam
pretij
10
d.
If
od
dead
things
,
ad
valentiam
,
&c.
The
Form
of
the
Retorn
of
Distringas
,
Vide
Dalton
,
223.
In
Debt
or
Trespass
upon
the
Distringas
,
the
Sheriff
retorned
but
6
d.
Issues
,
and
was
amerced
for
it
.
Tho'
the
words
of
the
Distringas
be
qd'
distring'
per
omnes
Terras
&
Catalla
sua
in
Balliva
tua
,
yet
the
Sheriff
ought
to
distrain
him
but
reasonably
,
and
not
according
to
the
words
of
the
Writ
,
Kiel
.
117.
Mean
Process
.
What
Arrest
by
the
Sheriff
or
Bailiff
shall
be
good
and
lawful
or
not
,
either
as
to
the
manner
of
Doing
,
the
Time
,
or
in
respect
of
the
Warrant
or
the
Persons
Arrested
.
As
to
the
Manner
,
It
's
commonly
said
,
a
known
Bayliff
need
not
Shewing
the
Warrant
.
shew
his
Warrant
altho'
it
be
demanded
,
nor
a
special
Bayliff
without
demand
:
As
to
London
,
in
Mackallys
Case
its
said
,
the
Serjeant
need
not
to
shew
his
Mace
,
because
he
is
sworn
and
known
,
altho'
not
to
the
Party
,
9
Rep.
Mackallys
Case
.
And
yet
in
the
Countess
of
Rutlands
Case
it
s
held
a
General
Arrest
by
a
Serjeant
by
shewing
his
Mace
and
touching
his
Body
with
it
,
by
saying
Sir
I
Arrest
you
,
is
insufficient
,
for
he
ought
to
shew
at
whose
Suit
,
out
of
what
Court
,
for
what
,
and
of
what
Retorn
,
that
the
Party
may
know
what
to
do
,
6
Rep.
52.
Where
the
Sheriff
doubting
a
Rescue
,
causeth
the
Serjeant
of
the
Mace
to
arrest
one
first
on
an
Action
of
100
l.
entred
in
London
according
to
Custom
,
and
after
the
Sheriff
arrests
him
by
Cap'
ad
Satisfac
'
,
this
is
unlawful
,
and
the
Serjeant
was
severely
punished
,
and
the
Court
disliked
such
feigned
Actions
against
Law
.
6
Rep.
52.
The
Sheriff
must
not
dispute
the
Authority
of
the
Court
,
tho'
the
Process
be
erroneous
,
Vid.
infra
,
&
Dalt.
106
,
107.
If
the
Officer
comes
to
Arrest
a
man
,
and
he
flyeth
,
the
Officer
may
pursue
him
and
take
him
in
another
County
,
but
he
cannot
beat
him
,
&c.
because
he
was
not
arrested
.
If
the
Arrest
of
Bayliff
he
flyeth
or
draws
Weapon
,
he
may
.
If
a
Special
Bayliff
by
force
of
a
Warrant
on
Arresting
J.
D.
in
a
Stangers
House
.
a
Capias
in
Process
,
enters
into
the
House
of
J.
S.
the
Door
being
open
,
and
there
takes
J.
D.
against
whom
the
Writ
is
,
the
Process
is
well
served
as
to
J.
D.
and
all
Strangers
:
And
if
any
Stranger
rescue
him
,
he
at
whose
Suit
he
is
arrested
shall
have
Action
against
him
.
2
Rolls
Abr.
277.
Hodges
and
Marks
Case
.
A
Capias
was
retornable
on
All
Souls
Day
,
which
is
non
dies
Juridicus
,
which
the
Sheriff
retorned
,
and
so
let
the
Party
go
,
it
is
a
bad
Retorn
;
the
Writ
was
good
,
and
the
detaining
of
the
Party
on
it
Lawful
,
and
he
was
commanded
to
bring
him
into
Court
.
Pop.
205.
As
to
the
Time
.
If
the
Sheriff
arrest
a
man
before
a
Writ
to
Of
Arrest
before
the
Writ
delivered
.
him
delivered
,
it
is
a
Trespass
;
yet
in
the
pleading
he
need
not
say
that
the
Writ
was
delivered
.
It
shall
be
intended
that
the
Bill
of
Middlesex
was
delivered
to
the
Sheriff
before
the
Arrest
,
and
before
the
Warrant
made
:
For
the
Arrest
being
after
the
prosecution
of
the
said
Bill
of
Middlesex
,
and
it
being
said
in
the
Plea
,
that
the
Bill
was
prosecuted
per
qd
'
the
Sheriff
makes
Intendment
in
Pleading
.
his
Warrant
,
it
shall
be
intended
to
be
delivered
to
the
Sheriff
before
the
Warrnat
made
:
And
if
it
were
not
so
,
the
Plaintiff
ought
to
have
shewed
it
in
his
Special
Replication
;
but
he
having
demurred
to
it
has
lost
the
advantage
.
If
a
Latitat
retornable
die
Lunae
prox'
post
cras
'
Arrest
on
the
day
of
Retorn
,
good
.
Sanctae
Trinit
'
(
which
is
the
10th
of
July
)
comes
to
the
Sheriff
to
arrest
J.
S.
he
may
arrest
him
on
the
said
10
day
of
July
.
2
Rol.
Abr.
378.
May
and
Hoper
.
So
a
Capias
in
Process
may
be
executed
the
day
of
the
Retorn
.
So
a
Capias
ad
satisfaciend
'
.
But
The
Sheriff
upon
a
Capias
in
Process
,
may
not
But
not
after
the
day
of
the
Retorn
,
and
before
the
quarto
die
post
.
arrest
the
Party
after
the
day
of
the
Retorn
and
before
the
quarto
die
post
;
as
if
the
Writ
be
retornable
Octab'
Pur
'
,
which
is
the
9th
day
of
February
,
and
the
Sheriff
arrests
him
on
the
10th
day
,
the
Arrest
is
ill
;
for
the
quarto
die
post
is
but
a
day
of
grace
,
and
the
party
may
appear
before
that
day
if
he
will
.
33
H.
6.
Siderfin
229.
Ellis
and
Jackson
.
And
tho'
the
Sheriff
may
return
His
Office
quoad
arresting
is
determined
on
the
Essoyn
day
.
his
Writ
after
,
yet
his
Office
quoad
arresting
is
determined
on
the
Essoyn
day
,
so
that
Dalton
p.
116.
is
not
Law
.
1
Keb.
718.
mesme
Case
.
An
Arrest
in
the
House
,
the
Door
being
open
at
six
of
the
Clock
at
Night
is
good
enough
.
By
the
late
Act
of
Parliament
none
can
be
Arrested
on
Sunday
,
except
for
Treason
,
Felony
or
breach
of
Peace
.
In
respect
of
the
Persons
Arrested
.
As
if
he
Arrest
one
person
for
another
,
and
one
that
ought
not
to
be
Arrested
on
the
account
of
Protection
or
Priviledge
.
The
Sheriff
had
Process
against
one
Adderley
,
and
he
took
one
Adderby
;
if
he
were
known
by
one
Name
or
the
other
,
it
is
good
,
alit
'
not
.
More
407.
n.
548.
If
the
sheriff
executes
a
Capias
,
and
there
is
He
ought
at
his
peril
to
take
notice
of
the
Person
and
Goods
,
but
whether
Original
be
sued
out
.
no
Original
to
warrant
it
,
he
is
excusable
,
but
he
must
take
notice
at
his
peril
of
the
Person
and
Goods
that
he
Arrests
,
for
he
is
not
to
examine
whether
the
Original
be
sued
out
or
not
:
But
if
he
arrest
J.
S.
instead
of
J.
N.
he
does
it
without
Warrant
.
Capias
against
G.
and
E.
B.
affirms
himself
to
be
E.
and
is
taken
,
yet
this
shall
not
excuse
in
false
Imprisonment
;
the
same
Law
of
a
Commission
of
Rebellion
.
Hardress
323.
Thurbane
Case
.
As
concerning
priviledged
or
protected
Persons
,
let
us
see
who
are
priviledged
from
arrests
or
not
Here
I
shall
briefly
say
something
of
a
Nonomittas
;
of
the
Office
and
Authority
of
the
Sheriff
on
it
.
Stat.
W.
2.
c.
39.
gives
it
:
For
when
Bayliffs
of
Liberties
had
retorn
of
Writs
,
upon
a
Mandate
to
them
,
they
would
do
nothing
.
Now
a
Remedy
is
given
by
this
Stat.
commanding
the
Sheriff
qd'
non
omittat
propter
aliquam
Libertatem
,
quin
exequatur
Praeceptum
Dom'
Regis
.
2
Inst.
451.
And
If
a
Bayliff
make
an
insufficient
Retorn
,
a
Non
omittas
shall
be
granted
.
2
Roll.
Rep.
336.
Attachment
is
a
Non
omittas
in
it self
,
ergo
the
Sheriff
may
break
the
House
to
take
the
Person
.
1
Rep.
18
,
33.
5.
Rep.
92.
Form
of
pleading
Non
omittas
,
Cap'
ad
Satisifaciend'
,
and
on
Mandavi
Ballivo
,
Retorn
,
Arrest
,
and
Escape
.
Vid.
2
Sand.
98.
Pleading
Non
Omittas
,
Fieri
fac
'
upon
Mandavi
Ballivo
retorned
.
1
Sand.
304.
Peers
of
the
Realm
are
Priviledged
;
so
Dutcllesses
Peers
.
and
Countesses
by
Discent
or
Marriage
,
as
in
the
Countess
of
Rutlands
Case
,
There
the
Sheriff
was
excused
by
the
Writ
,
tho'
it
appears
in
that
she
was
a
Countess
,
Coke
6
Rep.
for
the
Officer
ought
not
to
dispute
the
Authority
of
the
Court
;
But
Cap
'
upon
Contempt
,
as
Rescous
,
&c.
lies
against
a
Peer
.
Dalt
.
104.
The
Body
of
a
Peer
may
be
taken
in
Execution
upon
a
Statute
,
if
he
had
not
Goods
nor
Lands
extendible
.
Dalt
.
105.
Ministers
in
the
Church
are
priviledged
from
Clergy
.
Arrest
.
Artic'
Cler'
c.
3.
1
R.
2.
c.
15.
1
Mariae
.
c.
3.
Wiltshire
,
Undersheriff
,
was
imprisoned
by
the
Kings
Servant
.
Lord
Chamberlain
for
arresting
Sir
George
Hastings
,
Servant
to
the
King
,
upon
a
Cap'
Utlagat'
.
Litt.
Rep.
65.
Wiltshires
Case
.
Per
Cur
'
He
may
well
arrest
him
,
for
it
is
at
the
Suit
of
the
King
himself
,
and
he
is
sworn
to
serve
it
.
And
by
all
the
Judges
of
England
,
he
who
procured
the
Commitment
of
the
Under-sheriff
ought
to
pay
all
the
Charges
and
Expences
.
And
it
is
adjudged
in
1
Keb.
40.
The
Kings
Servant
is
not
so
Priviledged
from
arrests
;
but
that
the
Sheriff
ought
to
retorn
his
Writ
unless
he
shews
his
priviledge
on
the
Arrest
.
The
Queen
,
or
Queen
Dowagers
Servants
are
not
priviledged
.
In
the
King
and
Moultons
Case
,
the
Court
declared
their
Opinion
to
be
,
That
none
of
the
Kings
Servants
in
Ordinary
can
be
arrested
without
notice
first
given
to
my
Lord
Chamberlain
,
who
cannot
priviledge
any
perpetually
,
but
in
convenient
time
must
either
remove
such
,
or
make
them
pay
their
debts
;
but
if
the
Bayliffs
,
without
notice
,
do
arrest
any
such
,
the
Messengers
of
my
Lord
Chambelain
cannot
rescue
the
Prisoner
by
Letter
(
the
Arrest
being
lawful
)
nor
by
Warrant
,
but
the
Party
is
punishable
for
his
contempt
,
for
no
man
can
know
the
Kings
Servant
by
his
Face
,
but
he
may
shew
his
Priviledge
on
the
Arrest
.
They
also
conceived
the
Warrant
of
my
Lord
Rescue
.
Chamberlain
to
the
Messenger
to
take
all
persons
that
detain
such
Prisoner
,
is
a
Rescue
and
against
Law
,
and
is
to
be
only
against
the
Plaintiff
that
sued
,
for
the
Bayliffs
had
the
Kings
Warrant
to
arrest
,
and
had
no
notice
before
the
Arrest
,
that
he
was
the
Kings
Servant
.
This
was
Sir
George
Hamiltons
Case
one
of
the
Privy
Chamber
.
2
Keb.
3.
If
a
Parliament
man
be
arrested
on
Mean
Parliament
may
.
Process
,
or
taken
in
execution
,
it
's
proper
for
the
Parliament
when
they
meet
,
to
discharge
him
,
for
in
Sir
Rich.
Temples
Case
,
the
Justices
doubted
whether
they
could
do
it
or
not
.
Twisden
demanded
why
he
did
not
sue
his
.
Writ
of
Priviledge
out
of
Chancery
upon
the
retorn
of
his
Election
.
Siderfin
42.
2
Keb.
3.
Sir
R.
Temples
Case
.
Clergy-men
called
to
the
Convocation
have
the
same
priviledge
a
Parliament-men
have
.
Dier
fo.
60.
By
the
Court
of
Chancery
one
was
discharged
Chancery
Priviledge
.
from
an
Arrest
,
being
done
as
he
came
to
put
in
his
Answer
.
1
Rep.
in
Ch.
92.
&
p.
22.
There
is
a
Chancery-priviledge
from
Arrest
,
and
priviledge
in
other
Courts
for
Officers
and
Attorneys
.
As
to
Protections
the
2d
Instit.
p.
56.
upon
Protections
Stat.
is
very
full
.
All
Protections
that
are
not
Legal
,
which
appear
not
in
the
Register
,
or
warranted
by
our
Books
,
are
expresly
against
the
branch
of
Magna
Charta
1
Inst.
131.
Nulli
differemus
justitiam
.
As
a
Protection
under
the
Great
Seal
granted
to
any
man
,
directed
to
the
Sheriff
,
&c.
commanding
him
that
they
shall
not
arrest
him
during
a
certain
Time
,
at
such
a
mans
Suit
,
which
hath
words
in
it
,
per
Prarogativam
quam
nolumus
esse
arguendam
.
2
Inst.
56.
This
Protection
was
adjudged
to
be
void
.
In
respect
of
the
Warrant
,
what
is
good
or
not
to
justifie
Arrest
:
Or
where
Arrest
shall
be
lawful
or
justifiable
by
force
of
a
Warrant
or
not
,
and
where
its
good
without
shewing
the
Warrant
.
A
Warrant
made
to
three
conjunctions
&
divisim
;
this
being
a
Warrant
for
execution
of
justice
may
be
sufficiently
executed
by
two
.
2
Rol.
Rep.
137.
White
and
W.
Usher
.
So
a
Sheriff
makes
a
Warrant
to
four
&
cuilibet
eroum
,
qd'
ipsi
caperent
:
Two
of
the
four
take
him
,
it
's
good
.
Yelv.
p.
25.
King
and
Hobbs
.
For
Warrants
of
this
kind
are
not
to
be
resembled
Diversity
between
Warrants
.
to
Warrants
or
Authority
to
make
or
take
Livery
.
A
Warrant
to
two
men
joyntly
to
Arrest
another
,
either
of
them
may
do
it
.
Cok.
Litt.
181.
Vide
Crok
.
El.
913.
Mesme
Case
.
The
Sheriff
upon
a
Bill
of
Middlesex
makes
his
Precept
to
the
Bayliff
of
Westminster
to
arrest
J.
Ferrers
Kt.
ubi
revera
he
was
not
Knight
but
Baronet
;
this
was
not
a
good
Warrant
,
and
Warrant
false
as
to
Misnomer
.
the
Deputy
Bayliff
being
killed
by
Sir
John's
Servant
,
it
was
not
found
murder
in
the
Servant
,
because
his
Warrant
was
not
good
,
and
upon
the
Tryal
he
was
acquitted
.
Jones
p.
346.
the
King
and
Ferrers
.
The
Sheriffs
Bayliffs
cannot
execute
a
Writ
directed
to
the
Sheriff
without
the
Sheriffs
Warrant
,
and
if
he
do
he
is
liable
to
an
Action
.
If
the
Writ
comes
out
of
the
Kings
Bench
,
then
the
Warrant
must
be
,
Ita
qd'
habeam
Corpus
ejus
coram
Dom'
Rege
,
&c.
If
out
of
the
Common
Pleas
,
then
it
must
be
Ita
qd'
habeam
Corpus
ejus
coram
Justiciariis
Dom'
Regis
,
&c.
Where
the
Warrant
ought
to
be
shewed
or
not
.
If
three
Writs
of
Capias
in
Process
at
the
suit
A
General
Arrest
upon
three
Special
Warrants
.
of
J.
S.
against
J.
D.
are
directed
to
the
Sheriff
,
and
the
Sheriff
makes
three
Special
Warrants
to
one
Special
Bayliff
;
and
he
comes
to
J.
D.
and
arrests
him
generally
,
without
shewing
him
in
what
Action
,
neither
is
it
demanded
of
him
;
but
presently
upon
the
Arrest
,
a
Stranger
Rescues
him
,
Action
on
the
Case
lies
against
the
Stranger
for
all
the
three
,
for
this
was
an
Arrest
in
Law
upon
all
.
Tr.
16.
Jac.
Hodges
and
Marks
.
So
if
the
Writs
and
Warrants
were
at
the
Rescue
.
suit
of
three
several
persons
,
and
the
Bayliff
arrests
him
generally
as
before
,
for
this
is
a
good
Arrest
for
all
,
and
all
shall
have
Actions
for
the
Rescue
.
Id.
ibid.
He
is
not
bound
to
shew
his
Warrant
at
first
,
or
to
shew
at
whose
Suit
it
is
,
before
he
had
peaceably
submitted
to
the
Arrest
.
Cro.
Jac.
15.
Hodges's
Case
.
But
in
the
Countess
of
Rutlands
Case
it
is
holden
,
when
the
Sheriff
or
other
person
by
his
Authority
arrests
another
,
he
ought
upon
the
Arrest
to
shew
at
whose
Suit
,
out
of
what
Court
,
for
what
Cause
,
and
when
the
Process
is
retornable
,
to
the
intent
that
if
it
be
upon
Execution
,
he
may
pay
it
,
and
free
his
Body
,
or
agree
with
the
Party
,
or
put
in
Bayl
according
to
the
Law
,
and
to
know
when
he
should
appear
.
This
is
meant
after
a
peaceable
submission
,
Cro.
Reports
,
the
Case
of
Hodges
and
Markes
thus
,
which
is
a
Leading
Case
in
the
Point
.
But
when
the
Party
makes
resistance
or
flyeth
,
be
need
not
make
such
Declaration
.
The
Bayliff
who
had
two
Warrants
against
one
,
at
the
Suit
of
J.
S.
laid
his
hands
on
him
,
and
having
both
the
Warrants
in
his
Pocket
,
he
said
I
arrest
,
you
by
force
of
a
Warrant
I
have
,
but
did
not
shew
it
him
,
nor
had
it
in
his
hands
,
nor
told
him
at
whose
Suit
.
(
This
was
not
a
Bayliff
conus
.
)
The
Court
resolved
,
1.
This
Arrest
without
shewing
the
Warrant
and
telling
at
whose
Suit
till
the
other
demanded
,
is
legal
.
2.
This
Arrest
without
having
the
Warrant
in
his
hand
,
and
having
both
Warrants
about
him
,
is
well
enough
,
tho'
he
did
not
shew
by
which
of
the
Warrants
he
arrested
him
.
For
he
being
under
the
Bayliffs
Arrest
,
is
in
custody
there
for
all
Causes
,
for
which
the
Sheriff
had
made
his
Warrant
against
him
,
tho'
the
Sheriff
or
Bayliff
do
not
mention
any
specially
.
And
Rolls
C.
J.
in
another
Case
,
took
this
Special
Bayliff
.
difference
;
a
Special
Bayliff
is
bound
to
shew
his
Warrant
to
the
Party
whom
he
is
to
arrest
,
otherwise
the
Party
arrested
is
not
tyed
to
obey
him
,
but
he
is
not
bound
to
shew
his
Warrant
to
a
Stranger
.
But
a
known
Bayliff
,
i.
e.
one
that
is
commonly
A
known
Bayliff
.
known
,
is
not
bound
to
shew
his
Warrant
to
any
.
A
sworn
and
known
Officer
(
be
he
Sheriff
,
Undersheriff
,
Bayliff
or
Serjeant
)
need
not
shew
his
Warrant
,
yet
upon
the
Arrest
the
Officer
ought
to
declare
the
Contents
of
the
Warrant
,
ut
supra
.
If
Officer
arrest
a
man
before
he
has
a
Warrant
,
and
afterwards
procures
a
Warrant
,
yet
the
first
Arrest
was
unlawful
.
So
if
the
Officer
do
make
a
Warrant
for
Summons
or
Arrest
,
not
having
the
Original
Writ
or
Process
warranting
the
same
,
if
it
appear
to
the
Judges
,
they
shall
commit
the
Offender
to
the
Gaol
till
he
has
paid
10
l.
to
the
Party
grieved
,
and
20
l.
to
the
King
.
But
a
Capias
without
Original
,
is
sufficient
Warrant
to
the
Sheriff
.
43
Eliz.
c.
6.
1
Jac.
c.
25.
Of
Pledges
de
Prosequendo
.
The
reason
of
Pledges
in
Actions
is
,
1.
Security
The
reason
of
Pledges
.
for
the
Kings
Fine
.
2.
For
the
benefit
of
the
Defendant
,
if
Judgment
be
given
against
he
Plaintiff
.
Taking
of
Pledges
is
to
the
intent
that
the
Party
Plaintiff
,
shall
prosecute
his
Suit
.
The
Sheriff
was
at
election
(
formerly
)
whether
he
would
serve
the
Writ
or
not
if
Pledges
were
not
found
,
but
now
it
s
held
they
may
be
found
hanging
the
Writ
:
Formerly
if
the
Plaintiff
sued
one
unjustly
,
the
Judges
would
amerce
the
Plaintiff
grievously
till
the
Statute
of
Moderata
Misericordia
was
made
.
3
Bulst.
277.
Dr.
Hussy
and
More
.
Now
if
no
Pledges
be
retorned
,
it
's
not
aided
by
Jeofayle
.
Stat.
18
Eliz.
which
aids
insufficient
Retorns
,
but
not
no
Retorns
,
and
therefore
the
Person
against
whom
to
have
Judgment
is
not
retorned
,
for
the
Judgment
ought
to
be
against
the
Plaintiff
and
his
Pledges
,
and
so
this
is
no
Retorn
.
1
Rol.
Rep.
447.
If
upon
the
Original
Writ
,
Pledges
be
not
retorned
(
because
the
Writ
commands
that
if
Pledges
be
found
,
that
then
,
&c.
and
it
is
to
the
Kings
disadvantage
if
Pledges
be
not
found
at
the
loss
of
his
Fine
)
it's
error
.
But
the
Sheriff
may
make
Replevin
without
Pledges
finding
,
and
it
is
at
the
Sheriffs
peril
if
he
doth
not
take
Pledges
,
Vid
,
supra
tit
.
Replevin
.
Cro.
Car.
594.
Tregoose
and
Winnele
.
In
B.
C.
Pledges
must
be
endorsed
on
the
Original
,
tho'
they
may
be
filed
at
any
time
after
the
Retorn
thereof
.
2
Keb.
299.
Hedges
Case
.
Vide
pluris
sub
titulo
Replevin
.
Vide
supra
sub
titulo
sur
Summons
and
Attachment
.
Neither
the
King
nor
Infant
shall
find
Pledges
,
King
or
Infant
not
to
find
Pledges
.
for
no
Americament
shall
be
upon
their
default
,
therefore
it
were
in
vain
for
them
to
find
Pledges
.
2
Leon.
p.
4.
Scire
fac
'
against
the
Sheriff
for
taking
insufficient
President
.
Pledges
.
The
Form
of
the
Sheriffs
retorning
that
he
had
attached
the
Defendant
by
Pledges
.
Hutt
.
p.
77.
Trevor
and
Michelborn
.
2
Sand.
333.
CHAP.
VII
.
Of
Bail
.
of
Special
Bail
.
Who
shall
take
Bail
,
or
not
.
Of
Bail
Bonds
.
Explication
of
23
H.
6.
c.
10.
The
design
of
the
Statute
.
The
Form
to
be
observed
according
to
the
Statute
.
What
Obligations
and
Conditions
are
within
the
Statute
,
or
not
.
In
respect
of
the
Persons
and
Officers
to
whom
they
are
made
.
In
respect
of
the
Form
;
Of
the
Courts
,
and
of
the
Sureties
.
The
meaning
of
the
words
colore
Officii
.
Of
the
pleading
the
Statute
of
23
H.
6.
And
when
and
how
to
be
pleaded
.
What
Appearance
to
a
Sheriffs
Bond
is
good
,
or
not
.
Of
the
Sheriffs
Retorn
on
taking
Bail
.
Of
Insufficient
Bail
.
Of
refusing
Sufficient
Bail
;
and
the
Remedy
against
the
Sheriff
for
so
doing
.
The
Sheriffs
pleading
this
Statute
in
Actions
brought
against
him
.
Of
Bail
Bonds
,
being
discharged
or
assigned
.
Of
other
Bonds
,
besides
Bail
Bonds
,
entred
into
to
the
Sheriff
;
As
for
being
a
true
Prisoner
;
Saving
harmless
from
Escapes
;
For
Fees
,
&c.
And
the
Pleadings
thereunto
,
with
all
the
late
Cases
and
Resolutions
relating
thereunto
.
Of
Bail
.
BAil
is
so
called
,
because
the
Party
bailed
is
delivered
by
Law
into
the
Custody
of
those
that
are
his
Bail
,
and
who
are
to
answer
the
party
if
they
do
not
produce
the
Principal
to
do
it
.
The
cause
of
Marking
the
Roll
for
special
Special
Bail
in
B.
R.
on
Latitat
,
and
in
B.
C.
on
Original
.
Bail
in
the
Kings-Bench
is
,
because
the
Cause
of
Action
does
not
appear
upon
the
Latitat
,
by
which
the
party
is
Arrested
,
but
it
is
made
appear
by
the
Declaration
;
but
in
the
Common
Pleas
,
where
they
proceed
upon
Original
,
the
cause
of
Action
does
appear
.
Now
one
that
is
in
Execution
in
Custody
of
One
in
Execution
in
Custody
of
the
Marshal
,
not
compellalable
to
find
Bail
if
another
Action
be
brought
against
him
.
Aliter
in
the
Fleet.
Who
shall
take
Bail
.
In
London
.
the
Marshal
of
the
Kings-Bench
,
is
not
compellable
to
find
Bail
,
if
another
Action
be
brought
against
him
;
but
if
he
be
in
the
Fleet
on
Execution
,
and
an
Action
be
brought
against
him
in
the
Kings-Bench
,
he
must
either
be
Removed
and
Committed
to
the
Custody
of
the
Marshal
,
or
else
he
must
put
in
Bail
to
the
Action
.
It
is
the
Common
Course
of
London
,
upon
Plaint
before
the
Sheriffs
,
and
a
Precept
to
the
Serjeant
to
Arrest
one
,
the
Sureties
shall
be
found
and
offered
to
the
Sheriffs
,
not
the
Serjeants
.
So
in
Inferiour
Mayor's
Courts
,
Widow
and
Clark's
Case
.
Therefore
in
False
Imprisonment
the
Defendant
pleads
the
Custom
of
London
,
That
on
Entry
of
a
Plaint
in
London
,
a
Serjeant
may
by
Parol
,
or
otherwise
,
Arrest
the
Defendant
to
answer
the
Plaintiff
,
and
shews
,
That
J.
S.
entred
a
Plaint
in
the
Compter
against
the
Plaintiff
,
and
that
he
was
a
Serjeant
,
and
Arrested
him
and
carryed
him
to
the
Compter
till
he
found
sufficient
Bail
.
The
Defendant
confesseth
the
Custom
,
the
Entry
of
the
Pleint
and
Arrest
,
and
that
he
offered
Security
to
the
Sheriff
;
and
of
this
he
gave
Notice
to
the
Defendant
,
and
yet
he
carried
him
to
the
Compter
.
The
Defendant
demurrs
.
Per
Cur
'
,
The
Serjeant
,
upon
tender
of
Bail
to
the
Sheriff
,
is
not
bound
to
set
the
party
at
Large
,
unless
the
Sheriff
send
a
Warrant
testifying
this
to
him
,
Joue's
Rep.
226.
Percivall
and
Salmon
.
If
a
Capias
for
the
Good
Behaviour
be
directed
Capias
for
the
Good
Behaviour
.
to
the
Sheriff
by
the
Justices
of
Assize
,
and
upon
this
the
Sheriff
makes
a
Warrant
to
J.
S.
to
take
him
,
who
took
him
accordingly
,
and
the
party
tenders
J.
S.
sufficent
Bail
for
his
Appearance
;
and
J.
S.
refuseth
it
and
keeps
him
in
Custody
.
This
makes
him
not
a
Trespasser
ab
initio
;
for
't
is
not
his
Office
to
take
Bail
,
but
the
Sheriffs
,
2
Roll.
Abridg.
562.
Adam's
Case
.
Neither
the
Sheriff
,
nor
any
Justice
of
the
Bail
for
one
taken
by
Cap'
Excom
'
.
Peace
,
cannot
Bail
one
taken
by
a
Writ
of
Cap'
Excommunicat
'
.
But
he
is
Bailable
by
the
Kings-Bench
,
1
Bulstr.
122.
Hall
and
King
.
Capias
must
be
taken
out
,
and
sealed
and
delivered
to
the
Sheriff
against
the
Bail
,
before
he
can
be
taken
by
a
Testatum
in
another
Testatum
.
County
and
because
in
Robinson's
Case
it
was
never
deliverd
to
the
Sheriff
,
but
all
Retorned
in
one
Term
,
the
Execution
was
set
aside
,
2
Keb.
424.
Robinson's
Case
.
The
Scire
facias
against
the
Bail
,
usually
is
left
Scire
fac
'
against
the
Bail
.
Retorn
.
four
days
with
the
Sheriff
before
the
Retorn
of
it
;
but
if
it
be
not
it
is
well
enough
,
2
Keb.
229.
Barle
and
Potter
.
Judgment
in
a
Scire
facias
against
Manucaptors
,
Retorn
of
Scire
fac
'
against
the
Manucaptors
.
the
Bail
is
liable
by
the
Judgment
;
and
if
they
be
Freeholders
in
the
same
County
where
the
Recognizance
is
made
,
then
they
must
have
notice
and
time
;
because
the
Scire
facias
may
be
Retorned
:
But
if
they
be
Strangers
,
the
Sheriff
is
not
bound
to
warn
them
or
give
notice
,
Notice
.
but
Retorn
Nihil
on
both
together
;
for
this
is
but
of
favour
to
the
Bail
,
who
at
their
peril
ought
to
bring
in
the
Principal
.
In
Action
brought
against
the
Baron
and
Where
the
Husband
must
put
in
Special
Bail
for
his
Wife
,
or
not
.
Feme
,
and
the
Husband
is
only
Arrested
,
yet
the
Husband
must
put
in
Bail
for
his
Wife
,
if
the
Name
of
the
Wife
be
in
the
Writ
,
else
he
is
not
bound
to
put
in
Bail
for
her
;
for
it
is
the
Writ
that
warrants
the
Bail
,
Pract.
Reg.
43.
Yet
in
1
Keb.
241.
the
Husband
is
not
bound
to
put
in
Special
Bail
for
his
Wife
,
if
she
be
not
Arrested
;
but
he
must
appear
for
himself
and
his
Wife
,
and
must
find
Special
Bail
for
himself
,
1
Keb.
241.
Nevill
and
Cage
.
Note
,
Where
Bail
is
put
in
De
bene
esse
(
as
in
a
Judges
Chamber
)
the
Plaintiff
cannot
Sue
the
Sheriffs
Bond
till
it
be
refused
or
set
aside
;
but
he
ought
to
except
against
it
in
the
Judges
Chamber
,
2
Keb.
478.
But
I
think
he
may
except
against
it
after
,
within
a
certain
time
.
According
to
an
Old
Rule
,
it
was
within
20
days
.
Of
Bail
Bonds
.
The
Explication
of
the
Statute
of
23
H.
6.
This
Statute
is
frequently
pleaded
in
our
Books
,
and
many
Cases
about
the
Nature
of
this
Statute
;
and
the
Retorns
and
Pleadings
thereupon
we
meet
with
,
which
if
methodically
digested
,
would
be
the
better
and
more
clearly
explained
.
Let
us
see
how
the
Law
was
at
Common
Law
,
and
before
the
making
of
this
Statute
.
At
Common
Law
,
if
the
Sheriff
had
taken
any
man
by
the
Kings
Writ
,
he
must
not
be
Breve
de
homine
Repleg'
.
delivered
but
by
Breve
de
homine
replegiando
,
and
he
was
not
compellable
to
take
Bail
of
any
,
2
Sand.
60.
But
this
Statute
compels
him
to
take
Bail
,
and
the
design
of
the
Statute
is
,
to
provide
against
the
Extortion
of
Sheriffs
,
who
would
not
deliver
them
without
great
sums
,
Cro.
El.
808.
Sir
George
Clifton
.
Now
the
Statute
prescribes
the
Form
,
and
that
Design
of
this
Stat'
.
the
Sheriff
under
colour
of
his
Office
should
not
oppress
the
party
to
make
him
any
other
Obligation
,
for
the
Statute
makes
the
Obligation
void
for
not
pursuing
the
Form
;
but
not
in
the
Matter
thereof
.
This
Statute
was
made
for
the
Prisoners
benefit
;
for
the
mischief
before
was
,
That
the
Sheriff
not
being
compellable
to
bail
him
,
would
extort
Money
to
bail
him
,
Mod.
Rep.
228.
Now
this
Statute
hath
Three
Branches
,
as
it
is
in
Dive
and
Manningham's
Case
,
Plowden
.
1.
Commandment
and
Authority
to
the
Sheriff
,
to
let
to
Bail
'
such
persons
as
are
Mainpernable
:
So
it
extends
to
Coroners
,
Stewards
of
Franchises
,
Bayliffs
,
Keepers
of
Prisons
,
&c.
2.
A
Restraining
branch
,
That
they
shall
not
let
to
Bail
such
persons
as
be
in
their
Ward
by
Condemnation
,
Execution
,
Capias
Utlagat
'
,
or
Excommunication
,
Surety
of
the
Peace
,
and
such
as
shall
be
Committed
by
special
Commandment
of
the
Justices
,
nor
Vagabonds
.
3.
The
third
is
,
to
make
Obligations
void
,
taken
in
any
other
form
than
the
Statute
limits
;
That
no
Sheriff
,
nor
any
of
his
Officers
and
Ministers
aforesaid
,
shall
take
or
cause
to
be
taken
,
or
make
any
Obligation
for
any
Cause
aforesaid
,
or
by
colour
of
their
Office
,
but
only
to
themselves
,
of
any
person
,
nor
by
any
person
which
shall
be
in
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
Bill
,
&c.
shall
require
:
And
any
other
Obligation
taken
by
them
in
any
other
form
,
shall
be
void
.
Now
there
are
Three
Forms
to
be
observed
:
1.
That
is
shall
be
made
to
the
Sheriff
himself
.
2.
Note
these
words
(
For
any
other
Cause
)
refer
to
all
that
went
before
,
as
well
those
contained
in
the
Exception
,
as
in
the
First
branch
.
Therefore
a
Bond
taken
of
a
man
in
Execution
is
void
by
this
Statute
,
and
the
Surety
may
plead
,
this
was
taken
by
him
in
Execution
as
Sheriff
,
and
and
the
words
colore
Officii
make
it
void
;
for
he
he
lets
him
to
Bail
who
is
not
Mainpernable
,
Plowd.
69
,
80.
Dive
and
Manningham
.
3.
Note
also
(
Nor
any
of
his
Officers
)
it
is
not
The
Stat'
mistaken
in
print
.
so
,
and
the
printed
Statute
is
mistaken
.
It
is
not
the
Sheriff
,
nor
any
de
ses
Officers
,
(
or
any
of
his
Officers
)
but
not
any
des
Officers
;
not
ejus
Officiarii
,
but
alii
Officiarii
.
And
so
is
Old
Rastal
which
is
in
French
,
and
so
Adjudged
in
Langham's
Case
.
In
Debt
on
Bond
to
Lenthal
,
the
Defendant
pleaded
it
was
for
Ease
;
it
was
held
to
extend
to
the
Marshal
,
tho'
he
is
not
one
de
ses
Officers
but
one
des
Officers
and
Ministers
of
Justice
,
3
Keb.
71.
Monday
and
Frogate
.
And
if
the
Statute
be
mis-recited
it
may
be
demurred
to
,
as
it
was
in
this
very
Case
,
Cro.
El.
108.
Teussell
and
Acton
.
In
this
Statute
are
Three
Forms
to
be
observed
:
1.
That
it
shall
be
made
to
the
Sheriff
himself
.
Vide
infra
.
2.
That
it
shall
be
made
to
him
by
the
Name
of
his
Officer
.
3.
That
it
shall
be
only
for
Appearance
at
the
day
and
place
,
Cro.
El.
862.
Cotton
and
Vale
,
2
And.
173.
mesme
Case
.
But
as
to
the
Insufficiency
of
the
Sureties
,
that
is
Matter
and
not
Form
,
and
the
Obligation
is
not
void
.
Vide
infra
.
The
Statute
prescribes
the
Form
,
and
that
the
Sheriff
under
Colour
of
his
Office
should
not
He
must
pursue
the
Form
,
not
the
Matter
.
oppress
the
party
to
make
him
any
other
manner
of
Obligation
;
for
the
Statute
makes
the
Obligation
void
for
not
pursuing
the
Form
,
but
not
in
the
Matter
thereof
:
Therefore
the
sheriff
may
take
one
Surety
,
or
one
that
has
no
Land
in
the
County
,
Cro.
El.
808.
Sir
Geo.
Clifton's
Case
,
Mod.
Rep.
32.
Franklyn's
Case
.
Per
Hobart
,
ex
Relatione
Twisden
:
Because
the
Statute
would
make
sure
work
,
and
not
leave
it
to
Expositions
what
Bond
should
be
taken
:
Therefore
it
was
added
,
That
Bonds
taken
in
any
other
form
should
be
void
.
What
Obligations
and
Conditions
are
good
,
or
not
.
1.
In
respect
of
the
Persons
and
Officers
to
whom
they
are
made
.
2.
In
respect
of
the
Form
.
1.
In
respect
of
the
Officers
or
Persons
to
whom
made
.
Such
Bond
given
to
a
Deputy
of
a
Bayliff
of
To
a
Deputy
of
a
Bayliff
of
a
Franchise
.
Serjeant
at
Arms.
a
Franchise
is
void
,
or
to
an
Under-sheriffs
Deputy
;
it
must
be
to
the
Bayliff
or
Sheriff
himself
,
Noy
p.
69.
Tavernor's
Case
.
A
Serjeant
at
Arms
,
attending
on
the
President
and
Council
of
the
Marches
of
Wales
,
is
not
an
Officer
within
this
Stat.
Cro.
Car.
9.
Johns
and
Stratford
.
If
the
Bayliff
of
an
Hundred
,
which
is
a
Bayliff
of
an
Hnudred
.
Franchise
,
take
Bond
,
he
must
do
it
in
the
Sheriffs
Name
,
3
Keb.
21
,
117
,
127.
Monday
and
Frogate
.
This
Bond
must
be
taken
to
the
Sheriff
himself
,
and
not
to
another
,
Dyer
119.
10
Rep.
100.
7
Ed.
4.
5.
Plowd
.
Com.
68.
a.
b.
A
Serjeant
at
Arms
in
Wales
is
not
within
Serjeant
at
Arms
in
Wales
the
Stat.
Stiles
234.
Barton's
Case
.
The
House
of
Commons
had
Voted
one
W.
guilty
of
High
Treason
,
and
the
Plaintiff
being
a
Serjeant
at
Arms
took
the
said
W.
into
Custody
;
and
the
Defendant
entred
into
Bond
to
the
Plaintiff
,
Conditioned
for
the
said
W's
Appearance
,
who
did
not
appear
.
Debt
was
brought
,
and
on
demurrer
.
Per
Cur
'
,
It
's
a
void
Bond
by
the
Common
Law
,
being
entred
into
for
ease
and
favour
of
the
Prisoner
,
and
he
was
not
bailable
.
But
the
Court
agreed
the
Plaintiff
was
not
an
Officer
within
23
H.
6.
c.
10.
Obj.
The
Condition
recites
the
Bond
was
entred
into
for
Appearance
only
,
is
an
Estoppel
to
say
it
was
for
other
Cause
.
Per
Cur
'
,
Here
is
no
Estoppel
;
for
Estoppel
is
when
the
Bond
is
a
good
Bond
,
then
the
Recital
is
an
Estoppel
;
but
when
the
Bond
is
void
,
the
Estoppel
is
void
too
,
Hardress
p.
464.
Norfolk's
Case
.
A
Serjeant
to
the
House
of
Commons
is
not
Serjeant
to
the
House
of
Commons
.
within
this
Statute
,
1
Keb.
391.
Norfolk
and
Aylmer
.
This
Statute
doth
not
extend
to
Bond
made
to
the
Plaintiff
himself
,
Allen
p.
58.
Leech
and
Davis
.
The
Bond
not
being
taken
by
the
Sheriff
in
Not
taken
by
the
Sheriff
in
the
name
of
his
Office
.
the
Name
of
his
Office
,
in
Debt
upon
the
Bond
,
the
Defendant
demurrs
upon
Oyer
.
Sed
non
allocatur
;
for
the
Statute
is
not
pleaded
,
Pleading
the
Stat
'
.
and
it
may
be
for
a
just
Debt
,
2
Keb.
620.
Jacques's
Case
.
Marshal
of
the
Kings-Bench
is
within
this
Marshal
of
the
Kings-Bench
.
Statute
,
and
if
he
takes
Bond
against
this
Statute
't
is
void
,
Cro.
El.
66.
Bracebridge
and
Vaughan
,
9
Co.
98.
A
Bond
to
Neele
,
Sheriff
of
Warwick
,
and
the
Bond
was
to
Neele
Vic'
Com'
praed
'
,
and
Warwick
put
in
the
Margent
.
Per
Dodderidge
,
This
is
not
a
good
Bond
;
he
ought
to
be
named
Sheriff
,
and
of
what
County
,
2
Rolls
Rep.
360.
Neele
and
Cooper
.
As
to
Appearance
,
where
the
Condition
is
good
,
or
not
.
An
Obligation
to
the
Sheriff
,
to
Appear
and
Answer
,
&c.
is
void
by
the
Statute
of
23
H.
6.
Aliter
to
Appear
to
Answer
;
for
the
party
by
the
Law
may
Appear
,
yet
Judgment
may
be
given
by
default
,
Noy
53
,
54.
Lord
Ever's
Case
,
Dyer
274.
contra
172.
Rowles
and
How
.
Condition
to
make
an
Appearance
,
quaere
if
good
.
Obligation
was
taken
by
the
Sheriff
for
an
Appearance
,
where
the
Term
is
adjourned
.
Appearance
at
Westminster
,
and
the
Term
was
Adjourned
to
St.
Albans
,
and
the
party
appeared
there
;
he
had
not
forfeited
the
Obligation
,
quaere
.
Mo.
n.
578.
Corbet
and
Downing
.
That
Obligation
shall
alway
relate
to
the
day
and
place
comprized
,
and
he
ought
to
appear
at
the
Kings-Bench
,
or
else
he
forfeits
his
Bond
,
Mo.
466.
The
Condition
was
,
If
the
said
J.
D.
personally
appeared
,
&c.
â
die
Paschae
in
15
dies
,
to
Answer
to
J.
H.
as
shall
appertain
,
and
farther
to
do
and
receive
as
the
Court
therein
shall
consider
in
that
behalf
,
that
then
,
&c.
it
's
a
void
Bond
,
Cro.
El.
672.
Scriven
and
Dyther
.
If
the
Sheriff
take
an
Obligation
for
the
Appearance
Bond
for
appearance
before
Process
comes
to
the
Sheriff
.
of
J.
S.
before
Process
comes
to
him
to
Arrest
J.
S.
and
after
the
Process
comes
,
this
Obligation
is
good
,
Siderfin
p.
151.
Bail
Bond
was
to
appear
at
Westminister
die
Sabbati
prox'
post
Purificat'
.
to
Answer
;
its
ill
,
it
was
intended
the
Feast
day
,
3
Keb.
260.
Rodd
and
Huans
.
Bill
of
Middlesex
was
Retornable
die
Veneris
,
Mistake
of
the
Day
.
the
Condition
of
the
Bail
Bond
was
,
If
the
Defendant
appeared
die
Sabbati
,
it
is
a
void
Bond
,
1
Sand.
21
,
22.
Bennet
and
Filkins
.
Condition
to
Appear
and
Answer
is
good
To
appear
and
answer
.
enough
,
2
Cro.
286.
tho'
Mildmay
and
Cage
his
Case
was
Objected
,
being
intended
generally
to
answer
any
Action
,
and
the
Writ
was
of
Trespas
,
3
Keb.
422.
Briscoe
and
Richardson
.
Thc
Condition
of
the
Bond
was
,
That
if
the
Insenfible
.
Defendant
do
appear
in
Banco
Regis
such
a
day
,
then
the
Condition
of
the
Obligation
to
be
void
;
yet
per
Cur
'
both
are
good
:
For
if
these
words
were
omitted
,
it
is
but
Surplusage
,
Siderfin
456.
Maleverer
and
Hawkins
,
2
Keb.
615.
mesme
Case
,
Mod.
Rep.
35.
mesme
Case
.
To
a
Condition
to
appear
before
his
Majesties
To
appear
at
Westm.
Justices
of
Kings-Bench
at
Westminster
.
The
Defendant
pleads
the
Statute
of
23
H.
8.
and
that
this
was
alia
forma
;
it
should
be
coram
Dom'
Rege
ubicunque
,
&c.
yet
it
was
adjudged
good
.
The
Statute
is
not
to
be
avoided
by
such
mistakes
of
Retorns
,
3
Keb.
551
,
611
,
627.
So
in
Cadwell
and
Dawkin's
Case
the
Condition
was
,
Ad
respond
'
E.
exec'
in
plac'
Trans
.
de
100
l.
and
the
Writ
was
,
Ad
respond
'
E.
in
placito
Tresp'
ac
etiam
billae
100
l.
de
debito
,
&c.
this
variance
is
not
material
,
if
the
Bond
be
made
in
the
name
of
his
Office
,
and
the
Condition
express
the
time
and
place
of
his
Appearance
,
and
at
whose
Suit
,
it
s
enough
,
Cro.
Jac.
286.
Villars
and
Hastings
,
Sir
Tho.
Jones
137.
Cudwell
und
Dawkin's
Case
,
so
Kerby
and
Curtis
.
The
Condition
is
,
If
such
an
one
who
is
To
appear
personally
.
arrested
on
a
Latitat
,
appeared
personally
and
answered
,
&c.
in
regard
his
appearance
is
necessary
to
put
in
special
Bail
,
if
the
party
require
it
,
the
Bond
is
good
,
Cro.
El.
776.
Bowles
and
Hersteo
,
Dalt
.
446.
10
Rep.
100.
A
Writ
out
of
the
Kings-Bench
was
Returnable
Appearance
on
a
Writ
Retornable
out
of
Term.
out
of
Term
,
the
Sheriff
takes
the
party
and
takes
Bond
to
appear
at
the
day
of
the
Retorn
,
and
for
Non-appearance
brought
Debt
on
this
Obligation
:
This
Bond
was
void
by
the
Statute
,
and
the
Sheriff
shall
not
be
amerced
for
Non-appearance
,
nor
liable
to
any
False
Imprisonment
by
the
party
,
2
Siderfin
129.
Jenkins
and
Hatton
.
The
Writ
is
placito
Trans
.
the
Condition
of
To
answer
,
Trans
.
ac
etiam
billae
the
Bond
is
to
answer
Ac
etiam
billae
100
l.
in
placito
debiti
is
void
,
being
another
Writ
;
but
if
the
Writ
were
in
placito
debiti
,
or
the
Bond
taken
only
to
answer
the
Writ
in
placito
Trans
.
it
were
well
enough
.
And
a
Nil
capiat
per
Billam
was
awarded
on
Demurrer
by
the
Plaintiff
upon
the
Defendants
Plea
upon
the
Statute
,
it
being
in
alia
forma
,
3
Keb.
164.
Mildmay
and
Cage
,
and
p.
711.
Moor
and
Finch
.
Ad
respond'
de
platito
debiti
is
good
without
Ad
Respondend'
de
placito
debiti
,
without
mentioning
the
Sum.
mentioning
the
Sum.
The
Bond
ought
to
be
made
to
the
Sheriff
by
the
name
of
his
Office
,
and
ought
to
express
the
day
and
place
of
his
Appearance
,
and
these
Circumstances
being
observed
,
tho'
it
be
variant
in
other
Circumstances
,
it
s
not
material
,
Cro.
Mich.
9
Jac.
286.
Villers
and
Hastings
.
The
Sheriff
cannot
take
Bond
to
appear
at
another
day
than
is
contained
in
the
Writ
,
2
Keb.
526.
If
an
Obligation
be
taken
by
the
Sheriff
after
Bond
taken
by
the
Sheriff
after
the
day
of
the
Retorn
void
,
and
why
.
the
day
of
the
Retorn
,
its
void
by
the
Statute
,
and
is
not
a
single
Obligation
;
and
the
Statute
was
made
to
prevent
such
great
Oppressions
,
for
the
party
so
taken
after
the
Retorn
,
may
not
be
bailed
without
coming
before
a
Judge
;
and
he
may
not
do
this
out
of
Term
without
the
Consent
of
the
other
party
,
Siderfin
301.
Courtney
and
Phelps
L.
gives
Bond
to
the
Sheriff
,
being
arrested
On
Attachment
out
of
Chancery
.
by
Attachment
out
of
the
Chancery
.
The
Condition
was
,
That
the
Defendant
should
appear
such
a
day
in
Chancery
,
apud
Westm'
ubicunque
fuerit
.
This
Bond
is
within
the
Statute
;
but
here
the
Variance
makes
it
void
,
Ubicunque
fuerit
,
2
Keb
526.
Levezer
and
Redshaw
,
Stiles
234.
Burton
and
Low
,
3
Keb.
599
,
614.
Kirby's
Case
.
As
to
Courts
.
The
Sheriff
,
by
virtue
of
an
Attachment
under
the
Privy-Seal
of
the
Court
of
Requests
,
took
the
Defendant
,
and
for
his
Enlargement
made
the
Obligation
to
appear
before
the
Kings
Counsel
,
&c.
Per.
Cur
'
,
Here
is
no
Warrant
to
take
the
Body
,
or
the
Obligation
;
for
that
Court
hath
not
any
power
by
Commission
,
Statute
,
or
Common
Law
.
But
the
Sheriff
ought
to
obey
the
Process
out
of
the
Dutchy
Court
,
for
that
is
appointed
by
Dutchy-Court
.
Act
of
Parliament
,
but
the
other
is
not
within
the
Statute
,
for
the
Statute
speaks
of
such
who
are
in
their
Custody
by
course
of
Law
.
So
this
Obligation
is
avoidable
by
Duress
,
Cro.
El.
646.
Stephens
and
Fludd
,
2
Anderson
122.
mesme
Case
.
Plaint
in
a
Court-Baron
of
39
s.
and
an
Court
Baron
.
Attachment
against
the
Defendants
Goods
,
and
detained
till
the
Plaintiff
caused
a
40
l.
Bond
to
be
made
to
the
Plaintiff
himself
to
appear
and
answer
,
and
Condemnation
by
a
day
,
and
pleaded
the
Statute
of
27
H.
6.
This
Bond
is
void
at
Common
Law
.
It
s
void
also
for
Extortion
,
because
of
the
Extortion
.
unreasonable
sum
,
&c.
and
the
Statute
doth
not
extend
to
such
a
Bond
,
1
Keb.
872
,
873.
Randall
and
Keite
.
The
Condition
was
to
appear
before
the
Justices
Not
according
to
the
Style
of
the
Court.
de
B.
R.
at
Westminster
,
and
saith
not
ad
placita
coram
Nobis
tenenda
ubicunque
,
&c.
the
Variance
is
not
material
,
and
by
common
Intendment
it
is
the
same
Court
,
Sir
Tho.
Jones
46.
Kirby
and
Curwin
.
As
to
Sureties
.
The
Statute
saith
,
That
he
shall
take
Obligation
Sureties
.
with
sufficient
Sureties
;
but
this
is
for
the
benefit
of
the
Sheriff
,
that
is
,
for
his
Indemnity
,
that
if
he
be
amerced
for
Non-appearance
of
the
party
,
he
shall
have
his
remedy
;
for
he
may
take
what
Sureties
he
thinks
fitting
,
Mo.
636.
Cotton
and
Vale.
Therefore
if
the
Sheriff
take
Obligation
for
Bond
not
void
for
insufficiency
of
Sureties
.
Appearance
,
it
s
not
void
per
Stat.
23
H.
6.
for
insufficiency
of
the
Sureties
;
or
that
the
Surety
had
no
Land
;
for
the
Sheriff
may
take
one
Surety
or
two
,
2
Anders
.
157.
The
Sheriff
is
Judge
of
the
Sufficiency
,
and
it
s
no
plea
to
say
,
he
took
Bonds
of
Insvfficient
persons
,
Mo.
Rep.
118.
Cotton
and
Vale.
The
party
that
gives
the
Bond
must
be
in
the
Ward
of
the
Sheriff
.
So
is
Beaufage's
Case
,
vid.
10
Rep.
99.
b.
Winch.
p.
20
,
50.
Empson
and
Bathurst
.
So
,
Condition
to
Appear
;
the
Defendant
on
The
Bond
must
be
taken
of
the
person
who
is
in
Lawful
Custody
.
Oyer
pleads
the
Statute
of
23
H.
6.
that
the
Plaintiff
(
Bayliff
of
St
Edmondsbury
)
Imprisoned
the
Defendant
without
Warrant
,
and
thereon
took
the
Bond.
Per
Cur
'
,
Its
an
ill
Plea
;
for
the
Bond
must
be
taken
of
the
person
in
Custody
,
i.
e.
Lawful
Custody
;
and
this
Bond
is
voidable
by
Duress
at
Common
Law
,
3
Keb.
756
,
760.
Lord
Suffolk
and
Birket
,
Sir
Thomas
Jones
76.
mesme
Case
.
The
Sheriff
upon
a
Fieri
fac
'
took
Bond
of
the
Defendant
to
pay
the
Money
in
Court
at
the
Retorn
of
the
Writ
;
this
is
good
,
and
not
void
by
Stat.
23
H.
6.
Vid.
Dalton
443.
10
Rep.
99.
Beaufage's
Case
.
Colore
Officii
.
Colore
Officii
is
taken
in
malam
partem
.
No
What
it
is
,
and
to
what
it
extends
,
or
not
.
Sheriff
shall
take
Obligation
contrary
to
the
Statute
Colore
Officii
.
As
one
in
Execution
escapes
and
is
retaken
,
and
then
a
Bond
is
made
for
his
Enlargement
,
this
is
Colore
Officii
.
But
if
a
Sheriff
take
a
Bond
for
a
true
Debt
;
this
is
good
,
because
it
s
not
Colore
Officii
,
2
Leon.
118.
Philips
and
Stone
.
Debt
on
Obligation
taken
by
the
Plaintiff
Sheriff
,
of
the
Defendant
his
Clerk
,
upon
Condition
to
pay
the
King's
silver
into
the
Exchequer
within
fourteen
days
after
he
received
it
.
The
Defendant
pleads
Stat.
23
H.
6.
and
averred
it
was
taken
Colore
Officii
.
And
upon
Demurrer
it
was
adjudged
for
the
Plaintiff
;
for
the
Statute
doth
not
intend
such
Obligation
taken
of
them
which
are
not
to
appear
,
nor
in
Custody
.
The
Plea
that
the
Bond
is
taken
Colore
Officii
,
will
not
avoid
a
Bond
taken
of
the
party
,
to
do
what
he
ought
,
Mo.
n.
685.
Cartwright
and
Dalesworth
,
3
Keb.
790.
A
Bond
for
Tuition
of
a
Child
as
Curator
,
Curator
.
Tutor
.
and
to
give
Account
to
the
Ordinary
,
is
but
a
voluntary
undertaking
of
the
Guardian
,
and
so
not
within
the
Stat.
23
H.
6.
and
its
good
at
Common
Law
,
notwithstanding
3
Inst.
149.
3
Keb.
671.
Note
,
If
the
one
part
of
the
Condition
be
The
whole
Bond
is
void
,
if
against
this
Statute
in
any
point
.
according
to
the
Statute
,
and
the
other
not
,
all
shall
be
void
;
for
the
Statute
extends
to
the
whole
Bond
,
Dive
and
Manningham
Pl.
68.
b.
Palmer
Rep.
378.
Noel
and
Cooper
.
If
the
Sheriff
take
Bond
for
a
Point
against
this
Law
,
and
also
for
a
due
Debt
,
the
whole
Bond
is
void
,
Hob.
p.
14.
Note
,
The
Warden
of
the
Fleet
,
and
the
Kings
Palace
at
Westminster
,
are
excepted
out
of
this
Act.
Of
Pleadings
.
Regula
,
This
is
a
particular
private
Law
,
and
ought
to
be
pleaded
.
Regulâ
.
Condition
was
,
That
J.
S.
appeared
in
B.
R.
&c.
The
Defendant
demands
Oyer
,
and
so
demurred
;
because
it
is
not
taken
by
the
Sheriff
in
the
name
of
his
Office
.
Sed
non
allocatur
;
the
Statute
being
not
pleaded
,
(
as
Whelpdale's
Case
)
No
Exception
can
be
taken
against
it
,
for
it
may
be
a
just
Debt
,
1
Sand.
155.
Dive
and
Manningham's
Case
,
Parker
and
Wells
,
Siderfin
24.
Allen
and
Robinson
,
Hob.
13.
contr.
3
Keb.
320
,
361.
Oakes
and
Ceel
.
A
Condition
to
appear
in
B.
R.
according
to
Custom
,
at
the
suit
of
M.
On
Oyer
the
Defendant
pleads
there
is
no
such
Custom
in
B.
R.
ad
the
Plaintiff
hath
alledged
,
to
appear
to
an
etiam
billae
,
and
so
the
Obligation
void
.
The
At
etiam
Billae
.
Plaintiff
demurrs
,
and
Judgment
pro
Querente
;
because
the
Statute
of
23
H.
6.
is
not
pleaded
,
being
a
particular
Law
.
But
it
might
be
pleaded
,
the
Bond
was
by
Duress
,
being
in
another
manner
Duress
.
than
the
Statute
allows
;
and
that
Statute
makes
the
Bond
void
for
the
whole
,
2
Keb.
620.
3
Keb.
60
,
181.
Forth
and
Walker
.
If
the
Statute
be
misrecited
,
it
may
be
Demurred
to
,
Siderfin
356.
Holbay
and
Bray
,
2
Keb.
278.
Pench
and
Woodnoth
,
Quare
,
How
the
Court
will
take
notice
of
it
,
by
the
printed
Book
or
by
the
Record
,
or
otherwise
?
Regula
,
To
plead
an
Appearance
,
and
not
to
say
,
Prout
patet
per
Recordum
,
is
naught
.
Regulâ
.
So
Corbet's
Case
;
On
the
Sheriffs
Bond
it
must
be
averred
a
Record
in
the
Rejoynder
as
well
as
in
the
Bar
,
1
Brownl
.
91.
Andrews
and
Robins
,
Cro.
El.
466.
Corbet's
Case
,
2
Keb.
250
,
278.
Knight
and
Pitt
.
Condition
was
,
If
he
appeared
at
Westminster
such
a
day
,
to
answer
,
&c.
The
Defendant
pleads
,
that
before
the
Day
of
the
Retorn
of
the
Writ
the
Term
was
adjourned
to
Hartford
,
and
that
there
he
appeared
.
The
Plaintiff
demurs
.
Per
Cur
'
,
He
ought
to
conclude
his
Plea
,
prout
patet
per
Recordum
;
for
tho'
he
appeareth
,
yet
if
his
Appearance
be
not
entred
of
Record
,
he
forfeits
his
Obligation
,
and
he
ought
to
Conclude
his
Plea
so
,
otherwise
the
Plaintiff
cannot
answer
thereunto
as
to
say
Nultiel
Record
,
Cro.
El.
466.
Corbet
and
Cooke
.
Debt
upon
a
Sheriffs
Bond
for
Appearance
in
B.
R.
the
Defendant
pleads
comparuit
ad
diem
;
the
Plaintiff
denies
it
,
and
by
Mittimus
out
of
the
Chancery
it
was
brought
into
the
Common
Pleas
,
and
Judgment
there
given
,
Palmer
and
Steward
cited
Cro.
Car.
297.
in
Lutterel
and
Leas's
Case
.
Tho'
the
Bond
is
made
void
by
Act
of
Parliament
,
Non
est
factum
not
to
,
be
pleaded
.
yet
the
party
may
not
plead
Non
est
factum
,
but
must
plead
the
Special
Matter
,
and
take
advantage
of
the
Act
of
Parliament
,
5
Rep.
117.
Whelpdale's
Case
.
In
Debt
upon
Bond
,
the
Defendant
pleads
the
Traverse
,
That
he
was
in
Prison
tempore
confectionis
,
not
good
.
Statute
of
23
H.
6.
and
shews
that
W.
was
in
Execution
,
and
that
the
Bond
was
made
for
his
Deliverance
against
the
Statute
.
The
Plaintiff
Replies
,
That
tempore
confectionis
of
the
said
Bond
W.
was
at
Large
;
absque
hoc
that
he
was
in
Prison
tempore
confectionis
,
&c.
the
Traverse
is
not
good
:
For
one
may
be
in
Prison
,
and
make
a
promise
to
make
a
Bond
,
for
which
he
is
Enlarged
,
and
within
an
Hour
after
he
makes
the
Bond
,
the
same
is
within
the
Statute
;
it
ought
to
have
been
absque
hoc
,
that
it
was
made
pro
deliberatione
,
2
Leon.
107.
Bowes
and
Vernon
,
2
Keb.
512.
Die
and
Adams
.
Debt
on
Bond
,
dated
25
Sept.
the
Defendant
Plead
primo
deliberat
'
after
the
Arrest
.
pleads
a
Capias
ad
satisfaciend
'
was
awarded
against
B.
who
was
taken
on
it
the
30th
of
Sept.
and
that
the
Obligation
was
made
for
the
Enlargement
of
B.
The
Plaintiff
demurs
,
and
had
Judgment
;
because
it
appears
the
Bond
was
made
before
the
Arrest
,
and
so
could
not
be
avoided
by
23
H.
6.
but
he
ought
to
have
pleaded
it
with
a
primo
deliberat
'
after
the
Arrest
,
Noy
23.
Collins
and
Phillips
.
To
Debt
on
Bail
Bond
to
Appear
,
the
Defendant
Plea
,
That
before
the
day
of
Appearance
he
was
taken
by
a
Cap'
Utlagat
'
.
pleads
before
the
day
he
was
taken
by
Capias
Utlagat
'
,
and
detained
till
after
the
day
,
and
so
could
not
appear
.
The
Plaintiff
demurred
,
and
it
was
Adjudged
to
be
an
ill
Plea
;
for
the
party
may
remove
himself
by
Habeas
corpus
,
and
if
this
should
be
good
,
all
Bail
Bonds
may
be
thus
avoided
,
and
the
Plaintiff
doth
but
his
Duty
,
2
Keb.
262.
Jeffreys
and
Cooper
,
Siderfin
406.
id
.
Case
.
In
Debt
,
the
Defendant
pleaded
the
Statute
of
23
H.
6.
and
that
was
for
ease
and
favour
,
and
not
for
a
just
Debt
.
The
Plaintiff
Replies
,
It
was
for
a
just
Debt
,
absque
hoc
that
it
was
for
ease
and
favour
.
To
which
the
Defendant
Rejoyns
Rejoynder
.
specially
,
and
the
Rejoynder
was
set
aside
in
the
Vacation
by
Judge
Rainsford
;
and
the
Plaintiff
entred
Judgment
for
not
joyning
on
the
Issue
tendred
by
the
Plaintiff
:
And
per
Cur
'
the
Judgment
was
affirmed
,
2
Keb.
554.
Berry
and
Bishop
.
Regula
,
For
when
an
Issue
and
Rule
is
given
,
the
other
party
must
joyn
,
and
cannot
depart
to
any
new
matter
.
Regula
.
A
Sheriff
brought
Debt
on
a
Bond
,
dated
the
13th
of
Jun.
the
Defendant
demands
Oyer
on
Traverse
.
Time
of
the
delivery
of
the
Bond.
the
Condition
,
which
was
,
That
if
he
appear
Veneris
prox'
post
tres
Trin'
,
and
pleads
,
That
Veneris
prox'
post
Trin.
was
14
Junii
,
and
that
he
was
Imprisoned
by
the
Plaintiff
till
the
19th
of
June
,
and
that
the
Obligation
supra
fuit
primo
deliberat
'
by
the
Defendant
the
19th
of
June
;
absque
hoc
,
that
this
was
delivered
as
his
Deed
before
the
19th
day
of
June
,
Siderfin
p.
300.
Courtney
and
Phelps
,
2
Keb.
p.
108
,
109
,
122.
mesme
Case
.
Per
Cur
'
,
This
is
not
a
good
Traverse
;
it
ought
to
have
been
,
absque
hoc
that
it
was
delivered
as
his
Deed
before
die
Veneris
prox'
post
tres
Trin'
.
For
if
the
Traverse
suprà
be
allowed
,
the
Plaintiff
shall
be
excluded
from
answering
to
the
Time
alledged
of
the
Retorn
,
altho'
it
be
false
.
The
Defendant
pleads
Stat.
23
H.
6.
and
that
Traverse
.
Time
of
the
Retorn
.
he
was
in
Custody
by
warrant
of
a
Writ
Retorned
Veneris
post
Octab.
Purificat
'
.
The
Plaintiff
Replied
,
The
Defendant
was
taken
by
a
Warrant
on
a
Writ
Retorned
Sabbat'
post
Octab'
Purific'
,
and
not
by
any
Writ
Retorned
Veneris
,
&c.
The
Defendant
Rejoyned
,
That
he
was
in
Custody
by
virtue
of
a
Writ
Retorned
Veneris
post
Octab'
Purific'
,
absque
hoc
that
he
was
taken
by
any
Writ
Retorned
Sabbat'
post
Octab
'
.
The
Plaintiff
demurrs
.
Per
Cur
'
,
This
is
no
Traverse
upon
a
Traverse
;
and
there
would
be
no
Traverse
in
the
Replication
,
which
would
make
an
end
;
but
in
the
Rejoynder
it
doth
,
2
Keb.
94
,
105.
Bennet
and
Philkins
,
1
Sand.
p.
20.
mesme
Case
,
3
Keb.
656.
Gold
and
Cutler
,
191.
Sturges
.
Debt
on
Bond
;
the
Writ
was
,
Ad
respondend
'
H.
G.
nuper
Vic'
Norf.
and
the
Count
was
,
Qd'
concessit
se
teneri
praefat
'
J.
H.
in
praedict'
40
l.
and
saith
not
,
Tune
Vic'
Norfolc'
existen'
.
And
per
Cur'
,
Sur
Demurr
'
upon
the
Bar
it
was
Ajudged
,
que
Count
fuit
insufficient
,
Cro.
El.
800.
Guyben
and
Whichstcomb
,
3
Keb.
191.
Twisleton
and
Dunken
.
J.
S.
puts
himself
in
a
Special
Bayliff
,
and
Special
Bayliff
takes
Bond.
It
is
by
Duress
.
Arrests
J.
D.
and
takes
Bond
,
&c.
This
is
by
Duress
,
and
the
Defendant
may
plead
that
;
yet
it
s
not
within
the
Statute
,
nor
aided
by
it
.
For
J.
D.
was
never
in
the
sheriffs
Custody
after
the
Arrest
,
and
the
Bond
was
taken
out
of
the
County
where
he
was
Arrested
,
and
so
by
Duress
,
Cro.
El.
746.
Brown
and
Adams
,
3
Keb.
756
,
760.
Earl
of
Bristol
and
Lord
Burkin
.
The
Defendant
pleads
to
the
Sheriffs
Bond
,
After
the
Writ
purchased
,
and
before
the
delivery
of
it
to
the
Sheriff
,
he
may
take
Security
.
that
there
was
no
Writ
ever
delivered
to
the
Sheriff
,
and
so
would
avoid
it
by
Stat.
23
H.
6.
The
Sheriff
after
the
Writ
sent
out
,
but
before
the
Delivery
,
takes
Security
:
Which
per
Cur
'
,
he
may
,
if
the
Defendant
will
give
it
,
1
Keb.
554.
Bromfield
and
Penhay
.
What
Appearance
to
a
Sheriffs
Bond
is
good
,
&c.
If
Appearance
be
the
same
Term
,
it
is
good
.
Appearance
after
the
Day
is
good
.
The
Defendant
pleads
to
a
Sheriffs
Bonds
,
taken
for
his
Appearance
in
B.
R.
die
sabbat'
prox'
post
Octab'
Sancti
Martini
,
and
that
he
appeared
at
the
day
:
And
the
Court
of
Common-Pleas
gave
him
a
Day
to
bring
the
Record
of
his
Appearance
by
Mittimus
out
of
the
Chancery
.
And
the
Record
was
certified
,
that
he
appeared
Lunae
prox'
post
Quindena
Martini
,
which
was
after
the
Day
,
and
adjudged
good
,
1
Brownl
.
58.
Statifield
and
Grony
,
Idem
74.
Carter
and
Freeman
.
So
in
Daly
and
Fryar's
Case
:
The
parties
Appeared
two
days
after
the
Day
in
the
Condition
,
is
good
,
and
shall
be
a
discharge
of
the
Bond
;
for
the
whole
Term
is
but
one
day
in
Law
.
so
it
is
in
the
Common
Pleas
,
and
in
the
Kings-Bench
,
2
Bulstr.
255.
Daly
and
Fryar
.
A
Debtor
having
given
Bond
to
the
sheriff
Defendant
ought
to
Appear
notwithstanding
a
Supersedeas
to
Appear
,
tho'
a
Supersedeas
comes
to
the
Sheriff
before
the
day
of
Appearance
;
yet
he
shall
appear
to
take
his
Bond.
A
Sheriff
sues
his
Bail
Bond
for
Non-appearance
:
Plea
of
Comperuit
ad
diem
,
how
Issue
to
be
joyned
,
and
on
whose
part
the
Proof
lies
.
The
Defendant
pleads
Comperuit
ad
diem
.
The
Plaintiff
Replies
,
Nul
tiel
Record
comparentiae
.
The
Defendant
Rejoyns
,
Quod
habeatur
tale
Recordum
.
Now
the
Proof
lies
on
the
Defendants
part
,
to
produce
the
Record
in
Court
.
A
Condition
to
Appear
in
B.
R.
where
the
Process
is
Retornable
,
&c.
The
Defendant
said
in
facto
that
he
had
appeared
secundum
formam
,
&c.
Et
hoc
petit
Repleader
was
awarded
;
for
it
must
be
tryed
by
the
Record
.
A.
is
bound
to
Appear
such
a
day
,
&c.
and
A.
How
the
party
may
:
Enter
his
appearance
.
No
Process
is
Retorned
.
at
the
said
Day
goes
to
the
Court
;
but
there
no
Process
is
Retorned
.
Then
the
party
may
go
to
one
of
the
Chief
Clerks
of
the
Court
,
and
pray
him
to
take
a
Note
of
his
Appearance
.
Vide
the
Form
of
the
Entry
in
such
case
,
1
Leon.
p.
90.
Brett
and
Shepard
.
If
the
other
party
plead
Nul
tiel
Record
,
it
behoveth
that
the
Defendant
hath
the
Record
ready
at
his
peril
:
For
the
Court
of
Common
Pleas
cannot
Write
to
the
Justices
of
the
Kings-Bench
,
to
certifie
a
Record
thither
.
Of
the
Sheriffs
Retorn
upon
taking
Bail
,
and
of
his
taking
Insufficient
Bail
;
or
his
refusing
sufficient
Bail
,
and
the
Remedy
:
And
his
pleading
in
an
Action
brought
against
him
.
Note
,
After
the
Statute
of
23
H.
6.
the
Sheriff
cannot
make
a
Special
Retorn
in
a
Capias
;
but
only
a
Cepi
Corpus
or
Non
est
inventus
:
And
the
Statute
,
tho'
it
compells
him
to
take
Bail
,
yet
it
does
not
alter
the
Retorn
.
The
design
of
the
Statute
is
to
provide
against
the
Extortion
of
Sheriffs
,
being
obliged
to
Retorn
Cepi
&
paratum
habeo
,
and
yet
to
lett
the
Defendant
at
large
;
and
therefore
there
is
no
reason
he
should
be
Charged
for
not
having
the
Body
at
the
Day
.
The
Retorn
of
a
Paratum
habeo
,
is
in
effect
no
more
than
that
he
hath
the
Body
ready
to
bring
into
Court
,
when
the
Court
shall
Command
him
.
And
for
his
False
Retorn
of
Paratum
habeo
,
he
is
amerceable
to
the
Court
till
he
do
bring
in
the
Body
,
(
and
the
Common
Practice
is
so
)
;
but
that
is
nothing
to
the
party
,
and
no
Action
lies
against
him
by
the
party
.
And
therefore
vide
Page
and
Tulses's
Case
.
Now
,
as
to
the
sheriffs
taking
Insufficient
bail
,
and
refusing
to
take
Sufficient
bail
,
the
Law
stands
thus
:
If
the
Sheriff
refuse
to
take
Reasonable
Bail
,
an
Action
on
the
Case
lies
against
him
,
Siderfin
p.
23.
If
the
Sheriff
refuse
to
take
Bail
,
he
is
liable
to
an
Action
of
False
Imprisonment
.
If
the
Sheriff
take
Insufficient
Bail
,
yet
no
Action
lies
against
him
by
the
party
;
for
he
is
Judge
of
the
Bail
.
Vide
supra
.
Therefore
,
In
Action
on
the
Case
against
the
Sheriff
for
Escape
.
the
Defendant
pleads
the
Statute
of
23
H.
6.
that
he
Lett
H.
to
Bail
,
and
took
Reasonable
Sureties
A.
and
B.
persons
having
sufficient
within
the
County
.
The
Plaintiff
Replies
,
Absque
hoc
,
that
he
took
Bail
,
having
sufficient
within
the
County
.
The
Defendant
Demurrs
,
and
Judgment
pro
Defendente
,
Mod.
Rep.
227.
Ellis
and
Yarborough
.
Where
Trespass
on
the
Case
was
brought
Sheriff
pleads
Stat.
13
H.
6.
against
the
Sheriffs
of
Middlesex
for
suffering
an
Escape
and
Retorning
Cepi
corpus
,
and
Paratum
habeo
(
which
was
false
.
)
The
Defendants
plead
,
That
the
party
Arrested
put
in
J.
B.
and
J.
C.
Sureties
,
and
plead
the
Statute
of
23
H.
6.
and
they
took
Bond
according
to
the
Statute
,
and
so
let
him
Escape
.
Per
Cur
'
,
The
Plea
is
good
,
for
the
Reasons
aforesaid
.
So
in
Bowles
and
Lassell's
Case
,
if
the
Sheriff
Retorn
a
Languidus
in
Prisona
,
having
taken
Bail
secundum
Stat
'
;
it
was
adjudged
,
that
tho'
the
Defendant
was
at
Large
,
yet
no
Action
lay
against
the
Sheriff
.
All
this
must
be
understood
of
Mean
process
)
;
for
else
this
would
be
to
frustrate
the
Statute
of
23
H.
6.
Cro.
El.
852.
Bowles
and
Lassels
.
But
Note
,
Then
it
must
appear
to
the
Court
on
the
Record
,
that
it
is
on
the
Statute
of
23
H.
6.
and
not
a
Retorn
at
Common
Law
:
Not
Guilty
.
And
the
Sheriff
may
in
such
case
plead
Not
guilty
,
Siderfin
22.
Allen
and
Robinson
.
But
if
the
Sheriff
demurrs
to
the
Declaration
,
If
the
Sheriff
demurr
,
al'
Narr
'
,
the
Action
is
against
him
.
then
the
Action
is
against
him
.
For
the
Declaration
shall
be
taken
to
be
true
upon
the
Demurrer
.
For
the
Statute
is
private
,
and
the
Court
will
not
take
notice
of
it
unless
it
be
pleaded
.
But
if
the
Defendant
had
pleaded
this
specially
,
or
if
he
had
pleaded
Non
culp
'
,
he
might
have
had
advantage
of
the
Statute
,
and
oufted
the
Plaintiff
of
his
Action
,
Cro.
El.
624.
Barton
and
Aldworth
,
Siderf
.
Parker
and
Welby
,
Mod.
Rep.
244.
244.
Page
and
Tulse
,
p.
33.
Franklyn
and
Andrews
,
Mo.
n.
427.
Cro.
El.
460.
Gardner
and
Langton
.
By
these
Words
in
the
Statute
,
That
if
the
Sheriff
Retorn
a
Cepi
Corpus
,
he
shall
be
chargeable
to
have
the
Body
at
the
Day
of
the
Retorn
,
&c.
it
is
intended
only
that
he
may
be
Amerced
to
the
King
for
not
having
the
Body
at
the
Day
,
2
Sand.
60.
Postern
and
Hanson
.
An
Action
on
the
Case
against
the
sheriff
for
not
taking
Reasonable
Sureties
,
not
having
sufficient
Estates
in
the
said
County
,
and
Retorning
Cepi
corpus
,
and
yet
not
having
the
Bodies
ready
by
the
day
,
lies
not
;
forhe
is
compellable
to
lett
to
Bail
,
and
if
he
have
not
the
Body
he
shall
be
amerced
;
And
because
he
shall
be
amerced
,
the
Statute
gives
him
Advice
to
take
sufficient
Sureties
,
for
his
own
Indempnity
,
2
Sand.
59.
Postern
and
Hanson
.
In
Action
on
the
Case
for
taking
Insufficient
Sheriff
pleads
,
He
had
taken
sufficient
Bail
,
he
need
not
say
where
,
nor
Traverse
the
Intent
.
bail
:
The
Defendant
pleads
,
he
had
taken
sufficient
Security
.
He
need
not
say
where
,
nor
need
he
traverse
the
Intent
,
to
deceive
the
Plaintiff
of
his
Debt
:
For
it
is
not
issuable
at
what
place
the
Security
was
taken
,
and
therefore
need
not
be
shewed
;
and
the
Intent
is
not
Traversable
;
and
had
the
Defendant
pleaded
so
it
had
been
ill
,
Siderfin
96.
Bentley
and
Hore
.
Action
on
the
Case
against
a
Sheriff
for
taking
How
the
Sheriff
is
to
plead
on
23
H.
6.
c.
10
Insufficient
bail
.
The
Defendant
pleads
the
Statute
of
23
H.
6.
c.
10.
The
Plaintiff
Demurs
to
the
Bar
,
because
the
Sheriff
had
not
alledged
,
that
he
had
not
dismissed
one
B.
(
whom
he
had
taken
)
by
sufficient
Mainpernors
,
but
only
alledgeth
this
by
way
of
Implication
,
and
not
positively
,
2
Sand.
58.
Postern
and
Hanson
.
Of
Bail
Bonds
,
being
Discharged
or
Assigned
.
In
Debt
on
Sheriffs
Bond
,
the
Principal
being
Where
the
Bail
Bond
shall
be
discharged
,
paying
the
Americaments
,
and
where
not
.
in
Prison
may
be
admitted
to
plead
,
discharging
the
Amerciaments
(
and
this
is
the
course
of
the
Court
)
where
the
Prosecution
is
fresh
:
But
where
the
Defendant
in
the
Original
Action
,
(
viz.
)
the
Principal
is
become
insolvent
.
Per
Cur
'
,
The
Bail
Bond
is
the
only
remedy
,
and
they
will
not
discharge
that
on
Ordinary
Rules
.
In
this
Case
North
prayed
the
Continuance
of
Process
on
the
Bail
Bond
,
in
regard
since
the
default
of
the
Appearance
of
Fludd
the
Principal
,
he
is
become
Insolvent
by
suffering
several
Judgments
.
But
Jones
said
,
That
the
Bail
appeared
on
the
very
day
of
the
Retorn
,
and
the
default
is
the
Plaintiffs
own
,
and
the
Bond
not
above
an
year
old
.
And
per
Cur
'
,
paying
the
Amerciaments
and
Costs
,
the
Bail
were
discharged
,
and
the
Principal
admitted
to
plead
,
2
Keb.
545
,
553.
Fludd
and
Williams
.
The
Surety
paid
the
Debt
,
and
he
sued
the
Bail
Bond
sued
by
the
Surety
who
paid
the
Debt
,
and
the
Coroners
took
a
New
Bond.
Bail
Bond
assigned
by
the
Sheriff
;
on
which
a
Writ
being
directed
to
the
Coroners
,
they
took
a
New
Bond
and
assigned
it
,
and
they
prayed
the
Money
out
of
the
Coroners
hands
for
the
Surety
.
Per
Cur
'
,
The
Coroner
cannot
discharge
his
Bail
Bond
no
more
than
the
Sheriff
,
and
they
ordered
the
Principal
Debt
to
be
paid
,
2
Keb.
287
,
400.
Foster's
Case
.
A
Bail
Bond
was
discharged
upon
Motion
,
Discharged
by
payment
of
the
Money
before
the
Retorn
of
the
Writ
.
Assigument
of
the
Bail
Bond.
the
Money
being
paid
before
the
Retorn
of
the
Writ
,
and
Common
Appearance
ordered
,
3
Keb.
356.
Randall's
Case
.
If
the
Defendant
appears
not
to
the
Sheriffs
Bond
,
according
to
the
Condition
thereof
,
the
Plaintiff
may
(
by
leave
of
the
Sheriff
)
sue
the
Bond
in
the
Sheriffs
Name
;
but
it
s
at
the
Plaintiffs
Election
to
sue
the
Sheriff
:
And
the
Sheriff
shall
be
amerced
till
he
assign
the
Obligation
to
the
Plaintiff
,
Pract.
Reg.
24.
Siderfin
.
p.
24.
When
Bail
is
put
in
de
bene
esse
,
(
as
Bail
taken
Bail
de
bene
esse
.
in
a
Chamber
)
the
Plaintiff
cannot
sue
the
Sheriffs
Bond
till
it
be
refused
or
set
aside
;
but
he
ought
to
except
against
it
in
the
Judges
Chamber
,
1
Keb.
478.
The
Court
cannot
compel
a
Sheriff
to
assign
Where
the
Sheriff
shall
be
compelled
to
assign
his
Bail
Bond.
his
Bond
regularly
.
But
in
some
Cases
they
will
,
as
the
party
was
arrested
by
the
Sheriff
,
and
through
his
default
in
not
Retorning
the
Writ
.
The
Defendant
died
.
Now
in
this
case
,
he
shall
not
take
advantage
ofhis
own
wrong
;
but
shall
assign
the
bail
Bond
,
or
pay
the
utmost
Amerciaments
,
2
Keb.
388.
Hill
and
Browning
.
It
was
moved
in
B.
R.
to
stay
Proceedings
Proceedings
upon
Bail
Bond
shall
not
be
stayed
until
Special
Bail
given
,
where
the
Plaintiff
had
been
prejudiced
by
delaying
of
Appearance
.
upon
bail
Bond
,
upon
discharging
the
Amerciaments
and
Costs
(
as
is
usual
.
)
And
it
was
alledged
on
the
other
side
,
That
after
the
same
Bail
given
the
Principal
had
sold
his
Land
,
and
became
irresponsible
,
and
rendred
himself
to
the
Marshalsea
.
And
for
this
cause
the
Court
refused
to
stay
Proceedings
,
and
said
,
it
would
not
be
done
until
he
had
given
Special
bail
;
because
they
did
not
cause
him
to
appear
at
first
,
according
to
their
Obligation
.
And
so
it
is
,
when
the
Principal
on
such
default
of
Appearance
becomes
a
Bankrupt
,
Siderfin
pag.
386.
Of
other
Bonds
(
beside
Bail
Bonds
)
Entred
in
to
the
Sheriff
,
what
are
good
,
and
what
not
:
And
Pleading
.
Vide
infra
tit
.
Bonds
,
between
the
High-sheriff
and
Under-sheriff
,
and
others
.
Bond
to
be
a
True
Prisoner
.
A
Bond
given
to
be
a
True
Prisoner
(
as
by
Law
he
ought
)
is
good
,
and
not
within
the
Statute
of
23
H.
6.
As
to
this
,
There
is
a
Notable
Case
of
Lenthall
and
Cooke
.
The
Case
is
,
Lenthall
the
Marshal
brings
Debt
on
Bond
against
Cooke
.
The
Condition
was
,
If
the
above-bounden
A.
P.
now
Prisoner
in
The
Condition
.
the
Kings-Bench
in
Southwark
,
do
and
shall
from
henceforth
be
and
continue
a
true
Prisoner
,
in
the
Custody
,
guard
,
and
safe-keeping
of
the
above-named
John
Lenthall
,
Marshal
of
the
same
Prison
;
and
in
the
Custody
,
guard
and
safe-keeping
of
his
Deputy
Officers
and
Servants
,
or
some
or
one
of
them
,
until
he
shall
be
lawfully
discharged
,
without
committing
any
manner
of
Escape
or
Escapes
during
the
time
of
his
Restraint
,
Then
this
present
Obligation
to
be
void
.
The
Defendant
Pleads
the
Statute
of
23
H.
6.
Pleadings
.
of
Obligations
made
to
the
Sheriff
colore
Officii
.
And
further
pleads
,
That
at
the
time
,
and
long
before
the
Plaintiff
was
Marshal
,
that
P.
at
the
same
time
was
a
Prisoner
at
the
Suit
of
,
&c.
And
that
the
Defendant
,
together
with
the
said
P.
pro
easiamento
&
favore
to
be
shewed
by
the
Plaintiff
to
the
said
P.
made
the
said
Bond
,
&c.
The
Plaintiff
Replies
,
and
Bond
was
pro
meliori
securitate
of
the
said
Plaintiff
,
that
the
said
P.
should
not
Escape
,
and
traverseth
the
Ease
and
Favour
.
The
Defendant
demurrs
.
And
these
things
were
Resolved
by
the
Court.
1.
That
the
Marshal
of
the
Kings-Bench
is
within
the
words
,
Gaoler
and
Keeper
of
Prisons
.
2.
Bonds
made
to
Gaolers
for
Ease
and
Favour
of
Prisoners
,
are
void
.
3.
A
Bond
given
to
save
harmless
from
Escapes
,
Bond
to
save
harmless
from
Escapes
,
is
void
.
is
within
this
Statute
and
void
;
but
a
Bond
to
continue
a
True
Prisoner
is
good
:
And
there
is
no
agreement
that
it
is
for
Ease
and
Favour
appears
,
but
the
contrary
rather
;
for
the
Plaintiff
in
his
Replication
hath
Traversed
it
,
and
the
Defendant
hath
confessed
the
Replication
to
be
true
by
his
Demurrer
,
1
Sand.
162.
Lenthall
and
Cooke
,
Latch
.
23
,
143.
Elworthy
and
Perryer
,
and
Hill
there
cited
.
This
Case
of
Lenthall
and
Cooke
is
Reported
by
Siderfin
;
and
the
Case
there
truly
put
as
here
.
The
Intention
of
the
Obligation
was
for
Ease
Plea
.
and
Favour
,
and
Traversing
it
hath
taken
it
away
.
Now
when
the
Defendant
had
such
Issue
Demurrer
.
offered
,
and
refused
to
joyn
,
but
demurrs
;
the
Defendant
agreed
it
was
for
Ease
and
Favour
,
Siderfin
283.
Note
,
A
little
Evidence
in
such
case
would
serve
to
prove
Ease
and
Favour
.
A
Bond
to
the
Warden
of
the
Fleet
to
be
a
True
Prisoner
.
The
Defendant
without
pleading
the
Statute
saith
,
it
was
for
Ease
and
Favour
.
The
Plaintiff
demurrs
.
The
Plaintiff
should
have
Traversed
the
Ease
.
And
Judgment
for
the
Defendant
,
3
Keb.
320
,
361.
Oakes
and
Cell
.
Condition
is
,
Where
D.
F.
is
under
his
Custody
(
i.
e.
of
the
Obligee
)
upon
Arrest
,
at
the
Suit
of
the
Plaintiff
,
in
Action
of
Debt
of
1400
l.
upon
Bond
by
him
to
the
Plaintiff
,
and
at
the
Request
of
the
Defendant
he
is
permitted
to
go
at
Large
for
six
days
.
If
therefore
the
said
D.
before
the
12th
of
February
renders
himself
a
Prisoner
to
the
Sheriff
of
Middlesex
at
the
Plaintiffs
Suit
on
Action
of
1400
l.
and
remain
a
True
Prisoner
till
he
shall
be
discharged
by
Consent
of
the
Plaintiff
.
See
the
Pleading
.
Quaere
de
Judgment
,
Sir
Tho.
Jones
Rep.
139.
Rushant
and
Waite
,
Siderfin
132.
But
a
Bond
of
one
in
Execution
to
be
a
true
A
Bond
of
one
in
Execution
to
be
a
True
Prisoner
,
is
void
.
Prisoner
is
within
this
Statute
,
and
void
.
And
as
to
this
the
Case
was
:
The
Condition
of
the
Bond
was
,
If
Thomas
Manningham
keep
the
Sheriff
without
damage
against
our
Lord
the
King
and
one
T.
P.
and
at
all
times
be
at
the
Commandment
of
the
said
Sheriff
as
a
True
Prisoner
,
and
appear
before
the
Justices
,
&c.
Then
the
Obligation
to
be
void
.
The
Defendant
pleaded
the
Statute
of
23
H.
6.
and
that
the
Body
of
Thomas
Manningham
was
in
Execution
upon
a
Recognizance
,
and
that
the
Sheriff
made
the
Obligation
for
the
delivery
of
the
said
Thomas
Manningham
,
and
demanded
Conclusion
of
the
Plea
.
Judgment
si
Actio
,
i.
e.
If
the
Plaintiff
ought
to
maintain
his
Action
.
This
is
no
good
Conclusion
of
the
Plea
;
he
ought
to
have
Concluded
,
Issint
nient
son
fait
.
For
the
Statute
saith
it
shall
be
void
;
and
if
it
shall
be
void
,
then
it
shall
be
void
from
the
beginning
,
and
then
it
is
not
his
Deed.
And
further
,
That
he
had
not
wisely
Concluded
his
Plea
;
for
this
Special
Conclusion
had
straitned
the
Defendant
so
,
that
if
the
Obligation
be
void
for
any
other
Cause
,
the
Defendant
shall
not
have
benefit
of
it
.
And
yet
because
it
appear'd
to
the
Judges
on
the
Matter
in
Law
,
that
the
Plaintiff
had
no
Cause
of
Action
,
the
Court
gave
Judgment
against
him
;
for
the
Obligation
is
void
by
the
Letter
of
the
Statute
,
for
it
makes
void
Obligations
taken
in
other
manner
,
which
extends
to
avoid
Obligations
for
Bailing
those
which
are
contained
in
the
second
Branch
;
as
those
in
Execution
,
&c
,
Plowd.
66
,
67.
Dive
and
Manningham
.
But
as
for
the
Conclusion
of
the
Plea
,
the
Condition
was
,
That
the
Defendant
should
appear
in
B.
R.
to
Answer
in
a
Plea
of
Trespass
,
and
satisfie
the
Damages
.
The
Defendant
pleads
the
Statute
of
23
H.
6.
that
the
Bond
was
made
for
his
Enlargment
,
and
Issint
non
est
factum
.
The
Plaintiff
demurrs
Specially
upon
the
Conclusion
of
the
Plea
,
which
ought
to
be
Judgment
Si
Actio
,
and
agreed
the
Plea
to
be
ill
,
Allen
p.
85.
Leech
&
Davies
.
The
Defendant
and
L.
were
joyntly
bound
Judgment
confessed
on
Escape
.
to
Sir
J.
Lenthall
for
the
true
Imprisonment
of
W.
and
there
was
a
Warrant
of
Attorney
to
Confess
Judgment
on
the
Escape
of
W.
Glyn
moved
to
set
aside
the
Judgment
,
being
a
way
for
Ease
only
,
and
Judgment
entred
without
Trial
of
the
Escape
.
But
per
Cur
'
,
It
is
to
be
entred
on
Action
brought
,
which
is
brought
,
and
the
parties
are
at
Issue
.
But
Sir
J.
Lenthall
assigned
his
Security
to
the
Creditor
,
which
per
Cur
'
,
is
well
enough
;
and
there
appearing
no
Fraud
,
they
refused
to
set
aside
the
Judgment
,
1
Keb.
815.
Sir
John
Lenthall
versus
Lord
Landois
.
The
Marshal
takes
Bond
of
one
in
Execution
The
Rules
of
the
Kings-Bench
.
to
be
a
True
Prisoner
,
who
Escapes
;
Action
is
brought
against
him
,
and
well
,
for
the
Bond
is
good
.
The
Marshalsea
was
Ruled
to
be
enlarged
,
and
this
shall
be
called
Within
the
Rules
;
and
if
the
Marshall
take
a
Bond
to
tarry
there
,
it
is
good
,
Latch
.
143.
Sir
G.
Reynell
versus
Elworthy
,
Poph.
165.
fine
,
Sir
G.
Reynel's
Case
.
But
a
Bond
to
the
Marshal
,
&c.
to
save
harmless
from
Escapes
,
is
void
,
and
within
the
Statute
;
because
it
is
not
a
Bond
that
he
shall
continue
a
True
Prisoner
.
Vide
the
Condition
,
Record
and
Pleadings
,
1
Sand.
160
,
161
,
162.
Lenthall
and
Cooke
,
2
Keb.
422.
Id.
Casus
.
The
Marshal
ought
not
to
take
Bond
for
Bond
for
Chamber-Rent
void
.
Chamber-Rent
;
this
is
to
come
in
in
Allowance
Fees
.
The
Warden
,
nor
other
Gaoler
,
cannot
impose
what
Rents
they
will
on
Chambers
,
3
Keb.
102.
Bond
and
Mosedale
,
3
Keb.
133
,
603.
Duckenfield's
Case
.
A
Bond
or
Covenant
for
Fees
is
void
;
but
a
Bond
for
Fees
.
Bond
for
True
Imprisonment
is
not
void
primâ
facie
,
without
Circumstances
,
&c.
3
Keb.
133.
Mosedale
and
Middleton
.
A
Bond
for
Chamber-Rent
is
void
by
Common
Law
;
because
the
party
is
restrained
contra
voluntatem
,
and
shall
be
Imprisoned
till
payment
.
Also
the
Statute
extends
to
the
Marshal
only
for
such
Bonds
as
they
may
take
virtute
Officii
,
Latch
.
10.
Epsom
Case
.
Upon
a
Statute
acknowledged
,
and
Extent
sued
,
the
Sheriff
takes
Bond
of
20
l.
for
payment
of
10
l.
his
Fee
;
and
this
was
before
the
Liberate
.
It
s
a
void
Bond
,
1.
Because
he
takes
the
Bond
before
the
Liberate
.
2.
He
took
his
Wages
before
he
did
his
work
,
3
Keb.
678.
Ellis
and
Nelson
.
Vide
infra
tit
.
Fees
.
Note
,
A
Promise
is
within
the
Statute
,
as
well
Promise
.
as
a
Bond.
But
it
is
where
the
Bond
or
Promise
is
made
by
the
Prisoner
himself
,
or
some
other
for
him
.
And
therefore
in
an
Action
on
the
Case
the
Defendant
promised
the
Plaintiff
,
That
if
B.
(
a
Special
Bayliff
at
his
Nomination
)
arrested
A.
at
his
Suit
on
Cap'
ad
satisfaciend
'
,
and
suffered
him
to
Escape
,
he
would
not
sue
the
Plaintiff
;
this
is
not
within
this
Statute
,
1
Leon.
132.
Palmer
and
Smalbrook
.
But
Hobart
in
Norton
Sim's
Case
saith
,
Covenant
is
not
within
this
Statute
;
that
is
,
because
it
was
not
a
Bond
(
for
performance
)
made
in
the
behalf
of
a
Prisoner
,
as
Beaufage's
Case
is
,
Hob.
p.
13.
As
to
Assumpsits
and
Considerations
about
delivering
Prisoners
in
safe
Custody
,
saving
harmless
from
Escapes
,
permitting
to
go
at
large
.
Vid.
infra
.
Sub
tit
.
Escape
in
fine
.
By
the
Statute
of
13
Car.
2.
c.
2.
persons
arrested
Where
the
Sherist
is
not
to
take
60
or
40
l.
Bail
.
by
Process
out
of
the
Kings-Bench
,
or
Common
Pleas
,
not
expressing
the
Cause
of
Action
in
the
Writ
,
Bill
,
or
Process
,
and
which
are
bailable
by
the
Statute
of
23
H.
6.
c.
10.
shall
give
Bail
Bond
,
not
exceeding
the
Sum
of
40
l.
and
upon
Appearance
at
the
Retorn
,
he
shall
discharge
such
Bail
Bonds
.
And
if
the
Plaintiff
do
not
Declare
before
the
End
of
the
next
Term
after
Appearance
,
then
he
shall
be
Nonsuit
,
and
Judgment
and
Costs
shall
be
against
him
.
But
this
Statute
extends
not
to
Arrests
upon
Capias
Utlagat'
,
Attachment
or
Rescous
,
Contempt
or
Priviledge
;
nor
to
popular
Action
,
or
Action
on
any
Penal
Law
(
except
for
Tythes
)
Indictment
or
Information
.
Now
if
the
Sheriff
in
such
Personal
Actions
,
do
take
a
Bond
of
150
l.
(
where
it
ought
to
be
but
40
l.
)
the
party
shall
have
an
Action
upon
the
Statute
against
the
Sheriff
;
but
the
Bond
is
not
void
.
This
was
the
Case
of
a
Coroner
,
2
Keb.
387
,
311.
Foster
and
Closon
.
And
therefore
Villars
and
Hasting's
Case
,
where
it
saith
,
The
Statute
doth
not
restrain
him
from
any
Sum
,
is
good
Law
;
but
with
this
Caution
,
That
Action
lies
against
him
if
he
exceed
40
l.
de
placito
debiti
generally
,
upon
this
late
Statute
,
Cro.
Jac.
286.
In
what
other
Cases
the
Sheriff
may
Bail
,
or
not
.
The
Sheriff
cannot
bail
one
Committed
for
Felony
,
except
it
be
by
the
Kings
special
Writ
directed
to
him
for
that
purpose
.
A
man
Indicted
for
Trespass
,
or
any
the
like
Offence
,
before
Justices
of
the
Peace
,
and
thereupon
Committed
to
Prison
,
may
upon
the
Kings
Writ
be
Bailed
by
the
Sheriff
to
appear
at
Sessions
.
Upon
a
Supersedeas
the
Sheriff
may
bail
a
man
Sued
,
or
Indicted
,
&c.
whereupon
a
Capias
or
Exigent
shall
be
awarded
against
him
,
and
the
party
thereupon
is
Imprisoned
.
CHAP.
VIII
.
Of
Retorn
of
Writs
,
and
when
they
may
be
Retorned
.
General
Rules
and
Maxims
of
Retorns
.
What
Writs
must
be
Retorned
,
and
what
need
not
.
What
shall
be
a
good
Retorn
of
Writs
,
or
how
Retorns
shall
be
made
,
in
respect
of
the
Person
that
makes
the
Retorn
,
as
Sheriffs
,
Bayliffs
of
Franchises
,
&c.
In
respect
of
the
Forms
,
and
where
insufficient
Retorns
are
aided
.
Where
Retorns
shall
be
void
for
the
Uncertainty
or
Repugnancy
.
What
shall
be
a
sufficient
excuse
for
the
Sheriffs
Non-retorn
of
a
Writ
,
and
what
not
.
What
Acts
,
Process
or
Appearance
shall
be
good
before
the
Retorn
.
The
Penalty
on
the
Sheriff
by
the
Court
for
Non-retorn
.
A
Retorn
is
but
a
Certificate
made
by
the
Sheriff
or
Bayliff
to
the
Court
,
from
whence
the
Writ
issued
,
of
that
which
they
have
done
touching
the
Execution
of
the
same
Writs
.
There
is
a
difference
between
the
Teste
and
Retorn
of
Writs
.
A
Retorn
may
be
on
the
Essoyn-day
.
A
Writ
Retorn
may
be
on
the
Essoyn
Day
.
Appearance
.
shall
not
abate
if
the
Retorn
be
quarto
die
post
.
If
a
man
be
bound
to
appear
the
first
day
in
Term
in
Court
,
he
may
appear
the
first
day
of
the
Essoyn
,
and
then
have
his
Appearance
recorded
,
and
this
is
good
,
2
Bulst
.
Bedoe
and
Piper
.
Note
,
Where
the
Writ
or
Process
is
directed
to
the
Bishop
,
there
the
Bishop
is
to
make
Retorn
thereof
:
And
so
where
the
Writ
is
directed
to
other
Persons
(
as
Coroners
)
they
are
to
make
Retorns
.
General
Rules
of
Retorns
.
Deputies
are
allowed
in
Ministerial
Offices
:
But
all
Retorns
made
by
them
are
to
be
made
in
the
Name
of
the
Principal
Officer
,
3
Bulst
.
78.
The
Sheriff
must
retorn
true
,
and
not
contrary
to
the
Record
;
if
he
do
he
falsifies
all
his
Proceedings
.
L.
brought
Trespass
against
J.
G.
Widow
,
hanging
the
Suit
,
she
takes
D.
to
Husband
;
Judgment
was
against
J.
G.
and
a
Writ
was
directed
to
the
Sheriff
,
qd'
caperet
J.
praedictam
per
nomen
J.
G.
ad
satisfaciend'
,
&c.
the
Sheriff
cannot
now
retorn
that
she
was
married
.
Crok
.
Jac.
323.
Doley
and
White
.
The
Retorn
must
not
be
contrary
to
the
former
Retorn
.
If
the
Sheriff
retorn
upon
the
Venire
Retorn
of
Jurors
.
fac
'
12
Jurors
,
upon
the
Distringas
he
may
not
retorn
one
had
nothing
,
for
this
is
against
his
former
retorn
,
19
H.
6.
38.
For
if
he
had
at
first
and
alien
since
,
yet
it
is
chargeable
with
Issues
.
But
if
the
Land
be
recovered
by
Eign
Title
,
in
the
mean
time
he
may
retorn
it
with
this
Conclusion
Et
issint
nihil
habet
.
Id.
ibidem
.
So
if
he
had
Land
in
the
right
of
his
Wife
,
and
she
is
dead
in
the
mean
time
.
The
Sheriff
is
to
put
his
Name
to
every
Retorn
made
by
him
,
or
the
Retorn
is
to
be
void
.
By
the
Statute
of
York
12
Ed.
2.
c.
5.
1
Bulst
.
73.
The
Statute
appoints
that
he
who
Retorns
shall
add
his
Name
to
the
Retorn
,
and
it
is
sufficient
if
it
be
his
Christian
Name
and
Sirname
,
and
the
name
of
his
Office
is
not
requisite
,
Crok
.
Car.
189.
Bethell
and
Parry
.
Plowd
.
63.
tho'
in
Scrogs
Case
,
More
548.
saith
the
Name
of
Office
must
be
subscribed
,
as
well
as
by
the
Sheriffs
Christian
and
Sirname
,
but
by
Coroners
only
the
name
of
Office
.
If
the
Sheriff
arrest
one
upon
Mean
Process
,
and
doth
not
Retorn
the
Writ
,
he
is
a
Trespassor
;
and
therefore
Stiles
Pract.
Reg.
276.
is
not
Law
,
where
he
saith
it
is
not
requisite
that
the
Sheriff
in
making
a
Retorn
should
insert
his
Title
or
name
of
Dignity
,
or
Christian
or
Sirname
,
but
only
his
Name
of
Office
.
Before
the
Statute
of
York
,
12
Ed.
2.
c.
5.
Rast.
Ret.
of
Sheriffs
fol.
345.
no
Name
was
used
to
be
put
to
the
Retorn
of
the
Writ
by
the
Sheriff
,
nor
any
other
Minister
or
Officer
which
was
inconvenient
,
upon
which
complaint
was
made
to
this
Parliament
,
and
so
remedied
.
The
Retorn
of
the
Venire
fac
'
was
executio
istius
Brevis
patet
quodam
panello
huic
Brevi
annex'
Tho.
H.
nuper
Vicecom
'
,
and
then
the
now
Sheriff
added
these
words
,
istud
Breve
sic
indorsat'
fuit
mihi
J.
R.
Vic'
deliberat'
per
Tho.
H.
Mil'
nuper
Vic'
in
executione
Officij
sui
;
it
's
sufficient
,
for
T.
H.
ought
to
put
his
Name
to
the
Retorn
:
For
nuper
Vic'
shews
he
was
not
then
Sheriff
,
he
ought
to
have
put
his
Name
to
it
T.
H.
and
then
the
new
Sheriff
ought
to
subscribe
istud
Breve
sic
indorsat'
,
&c.
Plowd.
63.
5
Rep.
41.
2
Rol.
Rep.
209.
Bethers
and
Parry
.
Vide
infra
Cro.
Car.
289.
contra
.
Retorns
must
be
made
according
to
the
Ancient
Course
,
and
according
to
Presidents
.
As
Waste
was
assigned
in
S.
the
Retorn
must
not
be
qd'
accessit
ad
S.
but
ad
locum
vastatum
;
vide
infra
,
27
H.
8.
Rol.
2.
Dalt
.
162
,
163.
So
a
Retorn
of
non
inveni
partem
for
non
est
inventus
,
it
's
Error
and
not
amendable
,
9
H.
6.
fo.
12.
Mercer
was
outlawed
at
the
suit
of
H.
it
was
moved
to
avoid
the
Outlawry
,
because
the
Sheriff
retorned
the
Exigent
on
the
back
of
the
Writ
thus
,
(
viz.
)
superdictus
Mercer
,
where
it
ought
to
be
infra
nominatus
Mercer
;
for
nothing
was
written
above
but
within
.
But
by
all
the
Justices
the
Retorn
was
good
.
So
if
he
had
writ
the
Retorn
on
the
inner
side
of
the
Writ
.
Dalt
.
164.
Surplusage
is
no
hurt
to
the
retorn
of
a
Writ
,
as
in
Elegit
,
and
the
Sheriff
retorns
that
to
be
executed
,
the
extent
of
the
Church
of
St.
Andrews
,
alias
dict'
St.
Edes
,
and
the
true
name
is
Andrews
,
yet
good
.
Winch.
p.
27.
In
Scire
fac
'
retornable
in
B.
If
the
Sheriff
retorn
Scire
fac'
&c.
qd'
sit
coram
vobis
ad
faciend'
,
qd'
Breve
requirit
:
Altho'
vobis
had
relation
to
the
King
,
where
the
garnishment
ought
to
be
coram
Justiciariis
,
yet
good
;
for
those
words
ad
faciend'
qd'
Breve
requirit
,
comprehend
all
.
29
Ed.
3.
33.
adjudged
every
Retorn
must
exactly
answer
the
Writ
.
Statutes
aid
Misretorns
and
insufficient
Retorns
,
but
not
where
there
is
not
any
Retorn
.
Cro.
Car.
587.
Becknam
.
None
can
make
the
Retorn
of
a
Writ
,
but
such
a
person
,
who
at
the
time
of
the
Retorn
,
remains
an
Officer
to
the
Court
.
Vide
infra
.
Retorn
of
a
Writ
is
not
Traversable
,
vide
infra
:
Or
against
the
Retorn
of
the
Sheriff
,
there
is
not
any
Traverse
,
Averment
or
Answer
.
Per
Maynard
in
Searl
and
Longs
Case
.
Mod.
Feigned
Retorns
mischievous
.
Rep.
248.
It
's
a
great
abuse
in
Officers
to
retorn
such
feigned
name
,
the
first
cause
of
which
was
the
ignorance
of
the
Sheriffs
,
who
being
to
make
Retorns
,
and
looking
into
the
President
Books
for
the
Form
,
and
finding
John
Doe
and
Richard
Roe
put
for
Examples
,
made
their
Retorns
accordingly
,
and
took
no
care
for
true
Summoners
and
true
Manucaptors
.
And
he
cited
a
Cause
.
Judgment
was
entred
in
B.
in
a
Plea
of
Quare
Impedit
,
upon
non-appearance
to
the
Grand
Distress
;
but
there
the
Party
was
summoned
and
true
Summoners
retorned
.
Upon
Non-appearance
an
Attachment
issued
,
and
real
Summoners
retorned
upon
that
;
but
upon
the
Distress
it
was
retorned
that
the
Defendants
districti
fuere
per
Bona
&
Catalla
,
&
Manucapt'
per
J.
Doe
&
R.
Roe
;
and
for
that
cause
the
Judgment
was
vacated
.
Note
.
When
the
Grand
Distress
is
awarded
,
it
Grand
Distress
.
is
,
that
the
Sheriff
is
commanded
to
seise
the
thing
in
question
.
If
the
Defendant
be
taken
,
then
at
the
retorn
Rule
to
the
Sheriff
to
retorn
his
Writ
.
of
the
Writ
,
the
Plaintiffs
Attorney
at
the
day
of
the
Retorn
of
the
Writ
,
may
give
a
Rule
at
the
Clerk
of
the
Rules
,
for
the
Sheriff
to
retorn
his
Writ
;
or
if
he
go
out
of
Office
,
then
a
Distringas
to
the
new
Sheriff
to
distrain
the
old
Sheriff
to
retorn
his
Writ
:
But
if
the
Defendant
be
arrested
by
a
Bayliff
of
a
Liberty
,
who
hath
the
Execution
and
Retorn
of
Writs
,
then
he
must
retorn
his
Warrant
back
to
the
Sheriff
by
Rule
of
Court
,
or
Distringas
directed
to
the
Sheriff
to
distrain
the
Bayliff
,
and
so
amerce
the
Bayliff
that
way
.
Of
Retorns
in
respect
of
the
Old
Sheriffs
and
New
Sheriffs
.
Upon
the
Cap'
the
Sheriff
retorns
languidus
Languidus
in
Prisona
.
in
Prisona
,
and
a
Distress
issues
to
the
new
Sheriff
to
make
the
former●
Sheriff
to
have
his
Prisoner
;
and
the
new
Sheriff
retorns
issues
on
the
former
Sheriff
,
and
an
alias
Distringas
issues
What
must
come
in
way
of
Retorn
,
and
not
by
way
of
surmize
.
against
the
Sheriff
.
And
After
one
of
the
Councel
would
have
surmised
,
that
the
Sheriff
against
whom
the
Distress
issued
was
dead
.
But
by
the
Court
,
He
shall
not
have
this
by
way
of
Surmise
,
but
it
ought
to
come
in
by
the
Retorn
of
the
Sheriff
.
Dier
25.
a.
The
Retorn
of
the
old
Sheriff
shall
not
conclude
the
new
Sheriff
.
On
a
Fi'
fa
'
the
Sheriff
retorned
qd'
cepit
bona
ad
valentiam
10
l.
&
non
invenit
Emptores
,
whereupon
there
went
out
to
the
new
Sheriff
a
vendition'
exponas
,
who
retorned
that
his
Predecessor
non
cepit
bona
,
&
ideo
,
&c.
and
held
good
.
34.
H.
6.
Where
and
what
Writs
need
to
be
retorned
,
and
where
,
and
what
not
.
Generally
all
Writs
of
Execution
(
except
Elegit
)
Ca.
sa
.
Habere
fac
.
Seisin
.
Possessionem
,
Fieri
fac.
as
Cap'
ad
satisfaciend'
,
Habere
fac'
seisinam
,
Habere
fac'
possessionem
,
Fieri
fac'
,
Liberate
,
&c.
which
are
the
final
Process
,
and
after
which
no
Judgment
is
given
,
nor
no
further
Process
;
and
when
matters
en
fait
are
only
to
be
done
,
as
Land
to
be
delivered
,
Seisin
had
,
Goods
sold
,
&c.
are
good
,
tho'
the
Writs
be
not
Retorned
or
Eiled
(
if
the
Execution
be
duly
made
.
)
But
in
case
of
an
Elegit
otherwise
,
because
the
Elegit
must
be
Retorned
,
and
why
.
Extent
is
to
be
made
by
Inquisition
,
to
the
intent
that
the
Court
may
judge
of
the
sufficiency
of
it
,
and
every
Inquisition
ought
to
be
of
Record
.
Capias
in
Process
must
be
Retorned
,
4
Rep.
67.
Cap'
in
Process
must
be
Retorned
.
Fullwoods
Case
;
in
other
cases
the
Party
is
at
the
end
of
his
Suit
;
otherwise
of
a
Cap'
in
Process
,
for
the
end
of
the
Arrest
is
,
that
the
Defendant
shall
appear
.
5
Rep.
Hoes
Case
.
In
a
Scire
fac
'
for
Execution
,
it
's
a
good
Bar
that
the
Sheriff
levied
the
Damages
by
Fi'
fac
'
tho'
he
had
not
retorned
the
Writ
.
More
468.
Hoes
Case
.
The
Writ
of
Retorn'
Habend
'
is
not
retornable
,
Retorn●
haben
do
.
2
Rol.
Abr.
434.
The
Sheriff
was
ordered
to
retorn
an
Hab
'
Habere
fac'
seisinam
.
fac'
seisinam
,
the
Execution
is
good
if
he
do
not
retorn
it
.
But
perhaps
a
Writ
of
Error
in
Parliament
may
be
brought
;
and
if
he
will
not
retorn
it
,
the
Court
shall
amerce
him
.
1
Rol'
Rep.
Godsall
and
Sir
C.
Heydon
.
The
Writs
of
Redisseisin
and
Postdisseisin
are
Redisseisin
,
Postdisseisin
,
Admeasur'
de
pastur'
,
Dower
.
Vicountiels
,
and
not
Retornable
;
and
the
Sheriff
shall
hold
the
Plea
,
and
give
Judgment
,
2
Inst.
82.
So
the
Writs
of
Admeasurement
of
Pasture
,
and
of
Dower
,
and
the
parties
may
thereupon
plead
before
the
Sheriff
in
the
County
.
But
these
Pleas
may
be
removed
out
of
the
County
Court
by
Pone
,
2
Inst.
369.
Where
the
Sheriff
Retorns
Cepi
corpus
&
paratum
Duces
tec●●●
.
habeo
,
and
brings
him
not
in
,
then
the
Writ
of
Duces
tecum
shall
be
awarded
,
to
have
the
Body
in
Court
sub
poena
,
1
Bulstr.
82.
Gerton's
Case
.
Scire
fac
'
issues
out
of
Chancery
to
the
Sheriff
Security
of
the
Peace
.
The
Sheriff
not
to
Retorn
separatim
.
of
H.
and
the
Justices
of
Peace
,
to
call
L.
before
them
to
take
Security
of
the
Peace
.
L.
enters
into
a
Recognizance
,
and
the
Sheriff
Retorns
;
this
Matter
is
not
good
,
the
Justices
should
have
Retorned
too
.
For
the
Viscount
does
not
meddle
with
them
as
Sheriff
,
but
by
virtue
of
this
Commission
only
,
21
H.
7.
20
,
&
21.
2
Rolls
Rep.
257.
Leonard's
Case
.
What
shall
be
a
good
Retorn
,
or
not
;
or
how
Retorns
of
Writs
are
to
be
made
.
In
respect
of
the
persons
that
make
,
or
ought
to
make
the
Retorn
.
As
,
-
Sheriffs
.
-
Bayliffs
of
Franchises
.
-
Sheriffs
.
If
a
Writ
be
directed
to
a
place
where
there
Where
there
are
two
Sheriffs
and
one
Retorns
the
Writ
.
are
two
Sheriffs
,
as
London
,
Bristol
,
&c.
and
one
of
them
doth
Retorn
the
Writ
,
its
insufficient
;
for
it
must
be
Retorned
in
both
their
Names
,
tho'
one
(
according
to
Custom
)
may
execute
it
,
21
Assize
20.
Br.
Officer
22.
But
if
a
Warrant
be
directed
to
two
Bayliffs
Two
Bayliffs
of
a
Franchise
.
of
a
Franchise
to
execute
a
Writ
,
the
Retorn
of
one
of
the
Bayliffs
in
the
Name
of
both
is
sufficient
,
Tr.
39
El.
Palmer
and
March
.
If
a
Writ
directed
to
the
Sheriff
be
executed
,
How
the
new
Sheriff
ought
to
Reto●n
the
Writ
executed
in
the
time
of
the
old
Sheriff
.
and
after
a
new
Sheriff
is
chosen
,
the
new
Sheriff
ought
to
Retorn
the
Writ
in
this
manner
,
(
scil.
)
Recepi
hoc
breve
praedecessori
meo
directum
sic
Indorsatum
.
So
if
upon
a
Warrant
directed
to
the
Bayliff
So
of
a
Bayliff
of
a
Franchise
.
of
a
Franchise
to
Execute
a
Writ
,
it
be
served
;
and
after
and
before
the
Retorn
of
it
the
Bayliff
is
removed
,
and
a
new
Bayliff
chosen
,
the
Retorn
to
the
Sheriff
shall
not
be
in
the
Name
of
the
old
Bayliff
,
but
of
the
new
Bayliff
in
the
manner
aforesaid
;
for
the
old
Bayliff
is
now
as
a
meer
Stranger
.
But
if
a
Writ
directed
to
the
Sheriff
is
not
How
,
if
it
be
not
executed
in
the
old
Sheriff
.
Executed
by
him
before
he
is
removed
,
and
another
chosen
,
and
after
the
Writ
is
Executed
;
this
shall
be
Retorned
generally
in
the
Name
of
the
new
Sheriff
,
without
any
mention
of
his
Predecessor
.
The
same
Law
is
of
the
Bayliff
of
a
Franchise
,
Trin.
39
Eliz.
Palmer
and
Marsh
.
If
a
Writ
be
Executed
by
one
Sheriff
,
and
before
the
Retorn
of
it
a
new
Sheriff
is
chosen
,
he
ought
to
Retorn
the
Writ
,
and
not
the
old
Sheriff
,
because
the
new
Sheriff
is
now
the
Officer
of
the
Court.
Maxim
,
None
can
make
the
Retorn
of
a
Writ
,
but
such
a
person
,
who
at
the
time
of
the
Retorn
remains
an
Officer
to
the
Court.
A
Venire
was
Retorned
in
this
manner
:
Per
T.
R.
Vicecomitem
.
Istud
breve
cum
pannello
annexo
mihi
deliberat'
fuit
per
Thomam
Hanmer
Militem
,
nuper
Vicecomitem
in
exitu
ab
Officio
suo
.
Et
sic
Indorsatur
.
Thomas
Hanmer
Miles
,
nuper
Vicecomes
.
It
was
assigned
for
Error
,
in
that
it
appears
it
was
Retorned
by
one
who
had
no
Authority
;
for
in
saying
Nuper
Vicecomes
excludes
him
,
and
that
he
was
not
Sheriff
when
he
made
the
Retorn
.
Per
Cur'
,
Its
good
;
for
it
appears
by
the
Record
,
that
he
was
Sheriff
next
before
Thomas
R.
and
this
word
Nuper
Vicecomes
indeed
doth
necessarily
imply
,
that
he
was
not
then
Sheriff
at
the
time
of
the
delivery
of
the
Writ
to
the
new
Sheriff
,
then
it
must
be
construed
,
that
by
the
word
nuper
Vicecomes
he
was
Sheriff
at
the
time
of
the
Pannel
made
;
and
if
he
had
Retorned
it
without
the
word
Nuper
Vicecomes
,
it
had
been
good
,
Cro.
Car.
189.
Bethyll
and
Parry
.
The
Record
is
,
that
the
Venire
fac
'
to
try
the
Issue
was
Retorned
by
J.
S.
Sheriff
of
the
County
of
D.
It
was
assigned
for
Error
,
that
J.
S.
was
not
then
Sheriff
of
the
said
County
.
And
it
was
certified
by
a
Record
under
the
Seal
of
the
Exchequer
,
(
viz.
)
That
he
was
Sheriff
;
upon
which
the
Judgment
was
affirmed
.
But
some
are
of
Opinion
,
that
this
cannot
be
assigned
for
Error
against
the
Record
of
the
Court
,
Mich.
11
Car.
B.
R.
Smith
and
Smith
.
If
the
Writ
be
Retorned
by
one
that
was
not
Appearance
cures
the
Retorn
of
one
that
was
not
Sheriff
.
Sheriff
,
it
s
a
manifest
Error
;
but
if
the
Defendant
appear
afterwards
and
plead
,
it
s
not
material
;
for
his
Appearance
hath
made
it
good
,
Cro.
El.
p.
582.
Thoroughgood
and
Scroggs
.
If
the
Sheriff
shall
Retorn
Mandavi
ballivo
Retorn
to
Mandavi
ballivo
,
&c.
how
.
Libertatis
,
and
shall
not
therein
set
down
the
proper
Name
of
the
Bayliff
,
it
s
not
good
.
The
Sheriff
cannot
serve
a
Writ
in
part
,
and
write
to
the
Bayliff
of
a
Liberty
to
execute
the
other
part
;
as
a
Writ
served
as
to
part
of
the
Jurors
.
But
if
the
Sheriff
upon
a
Capias
in
Debt
against
Three
,
Retorn
that
he
had
taken
Two
,
and
as
to
the
other
Mandavit
Ballivo
Libertatis
,
&c.
good
.
The
common
Form
of
Vic'
Ret
'
is
,
Feci
quoddam
Warrant
'
;
but
to
the
Bayliff
of
a
Liberty
,
Mandavi
,
&c.
2
Roll.
Rep.
263.
Praecipe
quod
reddat
was
awarded
Vicecomitibus
Sheriff
cannot
Retorn
▪
He
summoned
himself
.
Glouc'
,
versus
A.
B.
&
C.
The
Sheriffs
Retorn
,
that
the
said
C.
was
one
of
the
Sheriffs
of
the
said
City
.
Ideo
ego
praefat
'
C.
&c.
alter
Vicecom'
Civitat'
praedict'
meipsum
secundum
Exigentium
brevis
istius
summonere
non
possum
.
Respons.
It
was
Adjudged
a
good
Re●orn
,
Bendl.
n.
160.
The
Retorn
was
in
this
Form
,
upon
a
Writ
of
Entry
against
Edw.
Mytchell
,
Thomas
Wykes
and
others
.
Summ'
infranominat
'
Edward
'
Mychell
,
R.
Fenn
&
J.
Denn
,
&
quoad
summ'
praedict
'
Tho.
Wykes
▪
Justiciar'
infrascript'
Certifico
qd'
idem
Thomas
,
&
ego
Tho.
Wykes
jam
unus
Vicecomit'
Civitatis
praedict'
,
sum'
unus
&
idem
,
&
non
alius
neque
diversi
.
Ideo
ego
praefat
'
Thomas
&
Hugo
Hyde
alter
Vic'
Civit'
praedict'
meipsum
secundum
Exigentiam
brevis
istius
summ'
non
possumus
.
Respons.
praedict
'
Thomae
Wykes
&
Hugonis
Hyde
Vic'
.
Anderson
110.
n.
21.
Bayliffs
of
Franchises
,
vid.
suprà
.
Retorn'
de
Vic'
per
Bayliff
.
If
a
Writ
to
enquire
of
Damages
be
directed
The
Sheriff
cannot
Retorn
a
Writ
of
Inqu●ry
,
&
●
●i●ected
to
himself
to
be
executed
by
a
Bayliff
of
a
Liberty
.
to
the
Sheriff
,
he
ought
not
to
make
such
a
Retorn
,
That
he
had
Commanded
such
a
Bayliff
of
such
a
Liberty
,
&c.
Cui
executio
praedict'
brevis
t●talit'
restat
fienda
,
&
quod
alibi
infra
Com'
praedict'
per
se
fieri
non
potuit
,
qui
quidem
Ballivus
sic
sibi
respondet
;
and
so
sets
down
an
Inquisition
before
the
Bayliff
,
and
40
l.
damage
.
This
Retorn
is
erroneous
,
untrue
and
against
Law
;
because
the
Warrant
was
directed
to
the
Sheriff
himself
to
be
Executed
in
any
part
of
his
Shire
,
and
no
Venue
contained
in
this
Inquest
of
Office
,
as
there
is
in
other
Writs
which
Intitles
the
Bayliffs
of
Liberties
.
But
because
there
were
divers
Presidents
of
this
Form
,
the
Court
would
not
Reverse
it
,
Hob.
p.
83.
Virely
and
Gunstone
.
If
the
Sheriff
Retorn
,
That
the
Bayliff
of
a
Franchise
(
who
had
Retorn
of
Writs
)
had
Retorned
,
&c.
this
is
good
,
altho'
he
doth
not
shew
of
what
place
he
is
Bayliff
,
29
Ed.
3.
c.
1.
W.
had
a
Cap'
ad
satisfac
'
to
the
Sheriff
of
New
Process
,
because
the
Retorn
was
mistaken
.
Middlesex
,
and
makes
Precept
to
the
Bayliff
of
the
Dutchy
,
and
the
Precept
was
Ad
capiend
'
H.
ad
respond
'
W.
where
it
should
be
ad
satisfaciend
'
,
and
the
Bayliff
retorn
the
Precept
served
,
and
the
Sheriff
retorns
to
the
Court
Cepi
corpus
secundum
Exigentiam
brevis
;
it
was
moved
to
have
a
new
Cap.
ad
satisfac
'
against
H.
For
tho'
the
Sheriff
by
his
Retorn
had
Charged
himself
to
the
Plaintiff
,
so
that
he
may
demand
Execution
against
him
;
yet
where
in
truth
the
Defendant
was
never
taken
in
Execution
for
the
Debt
,
as
here
,
but
only
taken
ad
respondend
'
,
there
the
Plaintiff
is
at
liberty
to
take
new
Process
against
the
Defendant
,
which
the
Court
granted
,
Yelv.
52.
Wood
and
Harborn
.
Presidents
,
Mandavi
ballivo
qui
nullum
dedit
responsum
,
2
Sand
▪
99.
Jaques
and
Cesar
.
Mandavi
ballivo
upon
Fieri
facias
,
and
upon
Non
omittas
awarded
.
Vic'
ret'
nulla
bona
,
1
Sand.
305.
Merchant
and
Driver
.
The
Form
.
What
Retorns
shall
be
good
in
respect
of
the
Form
,
or
not
;
and
where
Insufficient
Retorns
are
aided
.
As
to
the
Sheriffs
setting
his
Name
to
the
Retorn
,
vide
suprà
.
Sometimes
the
Retorn
is
Insufficient
for
omission
Omission
.
of
Words
:
As
where
the
Retorn
was
,
Residuum
hujus
brevis
apparet
in
quadam
Schedula
,
for
Residuum
executionis
hujus
brevis
,
Fitzh
.
Ret.
14.
And
the
Sheriff
is
bound
to
take
knowledge
of
the
Law
in
making
his
Retorn
;
therefore
in
a
Scire
facias
to
L.
B.
Master
of
the
Grammar
School
of
S.
&c
,
and
to
the
Scholars
of
the
same
,
he
retorned
that
Scire
fecit
to
the
Master
,
and
doth
not
say
,
To
L.
B.
Master
,
Bro.
Ret.
88.
In
a
Scire
fac
.
the
Sheriff
retorned
Scire
feci
A.
B.
modo
&
forma
prout
istud
breve
exigit
&
requirit
,
and
said
not
infra
nominat
'
A.
B.
yet
per
Cur'
its
good
,
for
these
words
prout
hoc
breve
exigit
are
tantamount
,
2
H.
4.
13.
3.
H.
4.
9.
The
Sheriff
retorned
Non
inveni
,
for
Non
est
Retorn
Non
inveni
is
Error
.
inventus
,
and
the
party
thereupon
was
Outlaw'd
.
This
was
assigned
for
Error
,
and
not
amendable
,
Fitzh.
19.
A
Retorn
by
the
Sheriff
in
the
Third
person
,
A
Retorn
in
the
3d
person
not
good
.
is
not
a
good
Retorn
.
The
Sheriff
retorned
,
Quod
praecepit
ballivo
de
S.
for
Praecepi
ballivo
,
and
he
was
amerced
for
it
,
21
Ass.
17.
The
Sheriff
upon
a
Capias
retorned
,
That
he
Rescous
retorned
.
arrested
the
Defendant
at
S.
and
would
have
carried
him
to
the
Gaol
,
and
A.
B.
rescued
him
.
This
Retorn
was
Insufficient
,
because
he
did
not
shew
at
what
place
A.
B.
made
the
Rescue
;
for
it
shall
not
be
intended
the
place
where
the
Arrest
was
,
Bro.
Ret.
97.
Vide
plus
tit.
Rescous
.
The
Teste
of
a
Writ
was
2
Martii
11
Eliz.
Prox
▪
futur
'
,
how
to
refer
.
The
Retorn
was
,
In
quarta
Septimana
Quadrigesimae
prox'
futur
'
.
The
words
prox'
futur
'
refer
to
quarta
Septimana
,
not
to
Quadrigesimae
,
Mo●
365.
Barton
and
Lever
.
In
Trespass
the
Sheriff
retorned
in
the
Common
That
the
Defendant
was
attached
per
,
&c.
how
to
be
retorned
.
Bench
,
that
the
Defendant
was
attached
per
catalla
ad
valentiam
de
10
l.
It
s
a
void
Retorn
,
for
he
ought
to
retorn
he
was
attached
by
one
Beast
or
Chattel
certain
,
and
name
them
,
that
so
they
may
be
forfeited
,
Cro.
El.
13.
Lawrence
and
Nethersole
,
1
Anders
.
51.
vid.
tit
.
Attachment
.
In
Outlawry
of
Murder
the
Sheriff
retorns
,
Retorn
in
Outlawry
.
Ad
Comit'
meum
tent'
apud
D.
en
le
County
de
Northumberland
,
and
saith
not
in
Comitat'
meo
Northumbriae
tent'
,
&c.
It
s
Error
,
for
one
may
be
Sheriff
of
Cambridge
and
Huntingdon
,
and
of
Surrey
and
Sussex
,
2
Rolls
Rep.
52.
Alder's
Case
.
Action
of
the
Case
upon
Escape
of
one
taken
Time
(
viz.
)
by
Ca.
sa
.
ret'
Paschae
16
Car.
2.
on
a
Judgment
entred
in
Mich.
16
Car.
2.
which
is
repugnant
and
impossible
;
and
this
moved
in
Arrest
of
Judgment
on
the
retorn
of
a
Writ
of
Enquiry
.
But
the
Teste
appearing
to
be
Jan.
16
Car.
2.
ret'
Crast'
Ascent
'
,
and
that
Virtute
brevis
postea
&
ante
retorn'
,
(
viz.
)
such
a
day
of
May
16.
which
should
be
17.
Per
Cur'
,
This
is
a
void
Retorn
,
(
Viz.
)
being
expositive
only
,
2
Keb.
101.
Hanmer
and
Unit.
Where
a
Retorn
shall
be
void
for
the
Incertainty
or
Repugnancy
,
or
not
.
In
a
Replevin
on
the
Causam
nobis
significes
,
In
Replevin
.
if
the
Sheriff
retorn
,
That
the
Beasts
cannot
be
delivered
,
quia
visum
inde
habere
non
potuit
.
This
is
not
good
,
because
he
doth
not
say
accessit
ad
locum
;
for
perhaps
he
could
not
have
the
View
,
because
he
did
not
go
where
the
Beasts
were
,
2
Ed.
3.
54.
b.
Outlawry
was
reversed
,
because
the
Exigent
had
Uncertain
retorn
of
the
Exigent
.
Prout
sibi
constare
poterit
,
is
ill
in
retorn
.
an
uncertain
Retorn
,
2
Rep.
Dr.
Drury's
Case
,
141.
If
a
Capias
comes
to
the
Sheriff
to
take
a
man
,
it
s
no
Retorn
that
he
was
found
within
his
Bailiwick
after
the
delivery
of
the
Writ
prout
sibi
constare
poterit
.
This
is
not
good
,
but
he
ought
to
retorn
expresly
Quod
non
est
inventus
,
9
H.
6.
57.
So
in
a
Fieri
fac'
de
bonis
Testatoris
against
Executors
,
if
the
Sheriff
retorn
that
they
have
not
any
Goods
in
balliva
sua
,
after
the
delivery
of
the
Writ
prout
ei
constare
poterit
.
This
Retorn
is
not
good
;
for
he
ought
to
take
notice
whether
they
had
Goods
or
not
,
and
so
retorn
it
,
9
H.
57.
b.
But
in
Debt
against
an
Executor
,
who
pleads
Retorn
on
Assets
.
plene
Administravit
,
and
Assets
are
found
upon
a
Fieri
fac
'
,
the
Sheriff
retorns
,
that
he
had
nothing
within
the
same
County
;
it
s
a
good
Retorn
,
Bendloes
n.
91.
Upon
Habere
fac'
seisinam
the
Sheriff
retorns
,
Uncertain
.
that
the
party
who
ought
to
take
the
Seisin
non
prosecutus
est
breve
.
This
is
not
good
;
for
the
uncertain
Intendment
of
it
,
and
the
coming
of
the
Sheriff
to
have
seisin
is
not
properly
a
prosecution
of
the
Writ
,
Pasch.
15
Jac.
Floyd
&
Bethill
.
On
Entry
sur
disseisin
of
two
Acres
,
Hab'
fac
'
Repugnant
seisinam
was
awarded
.
The
Sheriff
as
to
one
Acre
retorns
Habere
feci
,
as
to
the
other
Tardè
;
the
Sheriff
shall
be
amerced
for
such
a
Retorn
,
as
being
contrary
and
repugnant
in
it self
.
As
in
Ca.
sa
.
against
two
,
the
Sheriff
retorns
as
to
one
Cepi
,
and
to
the
other
Tardè
,
he
shall
be
amerced
,
2
Leon.
175.
Vide
Rescous
.
What
shall
be
a
good
Retorn
against
the
Admittance
of
the
party
,
or
not
.
Debt
against
the
Heir
:
If
the
Defendant
In
Debt
.
against
the
Heir
.
pleads
,
Nothing
descends
to
him
but
an
House
in
B.
upon
which
Judgment
is
given
for
the
Plaintiff
;
sed
quia
ignoratur
of
what
value
the
House
was
,
a
Writ
issues
to
the
Sheriff
to
enquire
of
the
Value
,
and
according
to
that
to
make
Execution
;
and
the
Sheriff
retorns
,
That
the
Heir
sold
the
House
before
the
Writ
came
to
him
.
This
is
not
a
good
Retorn
,
Hen.
7
Jac.
B.
R.
Goldson
and
Bennet
.
If
in
Action
of
Debt
against
Executors
the
Defendant
In
Debt
against
an
Executor
.
acknowledgeth
the
Action
,
on
which
a
Fieri
fac
'
issues
,
the
Sheriff
may
retorn
Nulla
bona
,
&c.
for
this
stands
with
the
Judgment
,
inasmuch
as
he
confest
the
Action
;
but
not
,
that
he
had
Goods
,
2
Roll.
Abr.
459.
Newman
and
Babington
.
Upon
Habere
fac'
seisinam
,
upon
a
Judgment
against
J.
S.
it
is
no
good
Retorn
for
the
Sheriff
to
retorn
,
That
J.
S.
had
nothing
in
the
Land
,
nor
was
Tenant
,
17
Ed.
3.
66.
b.
The
Sheriff
on
Levari
Retorns
,
That
he
had
Sheriff
pleads
.
Levied
the
said
sum
(
which
was
2000
l.
)
and
in
Debt
he
pleads
as
to
308
l.
Nil
debet
,
and
as
to
the
rest
a
Release
from
the
Plaintiff
;
the
Plaintiff
demurrs
.
Now
the
Plea
of
Nil
debet
is
ill
,
and
the
Sheriff
is
Estopt
to
plead
it
;
for
it
is
contrary
to
the
Retorn
.
But
per
Cur'
,
since
they
have
not
relyed
upon
the
Estoppel
,
but
taken
Issue
,
that
could
give
them
no
advantage
,
Hob.
206.
Speake
and
Richards
.
What
shall
excuse
the
Sheriff
for
his
not
Retorning
,
and
what
shall
not
.
As
for
the
Sheriffs
retorning
a
Rescous
,
Vide
sub
tit
.
Rescous
.
The
Sheriff
retorned
a
Resistance
on
Habere
Resistance
.
fac'
seisinam
,
and
he
was
amerced
20
Marks
;
because
he
did
not
take
the
Posse
Comitatus
,
and
an
Alias
awarded
,
Hill.
19
Ed.
2.
Execution
147.
On
Habere
fac'
seisinam
,
it
s
a
good
Retorn
to
That
none
came
to
take
Seisin
.
excuse
the
Sheriff
,
that
he
at
all
times
was
ready
to
deliver
Seisin
,
and
appointed
divers
times
in
certain
for
the
party
to
come
to
the
Land
to
receive
Seisin
;
but
none
comes
for
the
party
to
receive
it
,
2
Roll.
Abr.
459.
Floyd
and
Bethell
.
So
he
ought
to
excuse
himself
from
the
time
before
the
day
aforesaid
,
otherwise
the
Retorn
is
not
good
;
for
peradventure
he
was
requested
before
,
and
would
not
perform
it
,
mesme
Case
.
It
is
no
good
Retorn
for
the
Sheriff
to
say
,
That
he
is
not
paid
his
Fees
.
That
the
party
will
not
pay
his
Fees
,
and
therefore
that
he
would
not
execute
the
Writ
,
34.
H.
6.
Bro.
Ret.
10.
The
very
words
of
the
Writ
do
enjoyn
the
Sheriff
to
make
retorn
of
it
;
and
if
he
be
not
paid
his
Fees
where
he
is
allowed
to
take
them
,
he
may
recover
them
by
Action
.
If
a
Writ
out
of
the
Kings-Bench
be
directed
Tho'
Inferior
Court
be
not
bound
to
allow
a
Writ
,
yet
they
must
make
a
Retorn
.
to
an
Inferiour
Court
,
which
the
Inferior
Court
is
not
bound
to
allow
,
but
may
proceed
notwithstanding
the
Writ
directed
to
them
;
yet
they
ought
to
make
a
Retorn
upon
the
Writ
,
and
in
the
Retorn
to
shew
the
Cause
:
For
the
Writs
from
above
ought
to
be
obeyed
,
Stiles
Pract.
Reg.
tit
.
Retorn
.
Sheriff
retorned
a
Protection
on
Arrest
.
It
Sheriff
cannot
retorn
a
Protection
on
arrest
.
was
set
aside
per
Cur'
,
in
regard
the
Sheriff
can
retorn
nothing
but
Non
est
inventus
,
or
Cepi-corpus
,
at
his
own
peril
;
and
it
s
in
his
discretion
to
allow
or
disallow
any
Protection
,
and
the
Sheriff
was
ordered
to
retorn
his
Writ
on
a
Pain
,
2
Keb.
681.
The
Sheriff
of
Yorkshire
'
s
Case
.
If
a
man
be
taken
in
Execution
at
the
Suit
If
Supersedeas
comes
.
he
must
retorn
the
Supersedeas
with
the
Body
.
If
the
party
discharge
him
,
it
s
a
a
good
Excuse
.
the
King
;
afterwards
a
Supersedeas
comes
to
the
Sheriff
,
by
2
H.
7.
fo.
17.
he
may
retorn
the
Supersedeas
with
the
Body
.
So
the
Sheriff
is
to
retorn
the
Capias
and
the
Body
at
the
Day
;
but
if
the
party
discharge
him
,
this
is
a
good
excuse
,
3
Bulstr.
96
,
97.
In
Replevin
,
if
the
Sheriff
retorneth
,
That
the
Defendant
claimeth
Property
,
it
s
a
good
Excuse
,
Dalt
.
181.
The
Sheriffs
of
London
may
retorn
their
Custom
,
Dalt
.
c.
73.
Mandavi
ballivo
Libertatis
,
qui
nullum
dedit
responsum
,
is
a
good
Retorn
to
excuse
.
Tardè
is
an
Excuse
.
So
that
the
Plaintiff
non
invenit
plegios
de
prosequendo
.
Amendment
.
Where
Amendment
shall
be
of
Sheriffs
Retorns
,
and
where
not
.
On
Venire
fac
'
no
Retorn
was
indorsed
,
nor
any
Name
of
the
Sheriff
on
the
back
of
the
Writ
,
nec
quod
executio
brevis
patet
in
quodam
pannello
,
&c.
The
18th
of
Eliz.
aids
Insufficient
Retorns
,
not
where
there
is
no
Retorns
;
and
it
could
not
be
amended
after
Verdict
,
and
a
new
Venire
fac
'
issued
,
5
Rep.
41.
Rowland's
Case
.
8
H.
6.
c.
12.
extends
to
Retorns
;
but
yet
Misprision
of
Clerks
are
only
to
be
amended
.
But
it
extends
not
to
a
Retorn
by
the
Sheriff
where
it
should
be
to
a
Coroner
;
nor
doth
18
Eliz.
Nor
to
a
Retorn
of
a
Venire
fac
'
without
the
Name
of
the
Sheriff
;
vid.
plus
Co.
8
Rep.
162.
Blackmore's
Case
.
The
Venire
fac
'
,
and
other
Process
,
is
directed
Vicecomitibus
de
Canterbury
,
and
the
Retorn
is
made
by
one
Sheriff
only
.
The
Court
amended
this
at
Common
Law
,
and
not
upon
the
Statute
of
Jeofails
,
as
was
Sherington
and
Talbot's
Case
,
1
Cro
....
and
39
H.
6.
40.
And
they
swore
the
Jury
here
,
that
there
was
but
one
Sheriff
in
Canterbury
,
Siderfin
p.
243.
the
King
and
Pereival
.
Album
breve
retorned
is
not
amendable
,
Mo.
Rep.
1196.
Where
the
Retorn
of
the
Sheriff
shall
be
amended
,
as
well
after
Verdict
as
before
,
vid.
10
Rep.
Denbaud's
Case
.
Vide
hic
sparsim
pluis
de
Amendments
.
Having
now
Treated
largely
of
the
Insufficiency
and
Validity
of
Retorns
in
General
,
I
shall
consider
how
the
Law
is
in
Cases
where
Sheriffs
retorn
no
Writs
;
or
what
Act
,
Process
or
Appearance
shall
be
good
before
the
Retorn
,
and
the
penalty
on
the
Sheriff
for
not
Retorning
.
As
to
not
retorning
of
Execution
,
vide
infra
.
Where
a
man
is
to
lose
an
Inheritance
if
he
do
not
appear
,
he
shall
appear
without
the
Retorn
of
the
Sheriff
gratis
,
by
Day
in
the
Roll
,
10
H.
7.
11.
Where
a
man
is
to
have
a
●orporal
pain
if
he
doth
not
Appear
,
he
may
appear
without
the
Retorn
of
the
Sheriff
gratis
,
Id.
ibid.
In
Trespass
;
if
after
the
Exigent
is
issued
,
the
Defendant
renders
himself
and
had
a
Supersedeas
,
he
may
appear
by
the
Roll
,
altho'
the
Sheriff
doth
not
retorn
the
Exigent
at
the
Day
,
38
Ed.
3.
20.
b.
In
a
Writ
of
Debt
,
if
no
Original
be
retorned
,
nor
any
Retorn
made
,
yet
the
Defendant
may
appear
by
the
Roll
,
29
Ed.
3.
18.
In
a
Writ
of
Debt
,
if
the
Sheriff
retorn
the
Original
Nihil
,
&c.
yet
the
Defendant
may
appear
for
fear
of
a
Capias
,
10
Jac.
B.
R.
Slaney
and
Vautrey
.
The
penalty
for
not
Retorning
.
Nota
pro
Regula
by
Hales
:
(1)
The
Court
will
☜
discharge
Prisoners
on
Common
Bail
in
two
Terms
.
(2)
They
will
inflict
Penalties
on
Sheriffs
,
for
not
making
Deputies
;
and
will
(
whether
in
Office
or
not
)
imprison
them
,
for
not
retorning
of
Writs
by
the
Day
,
and
not
leave
them
to
Amerciaments
,
or
Distringas
nuper
Vicecomit'
,
2
Keb.
812.
In
1
Bulstr.
201
,
202.
an
Habeas
Corpus
was
directed
to
the
Warden
of
the
Fleet
,
to
bring
in
the
Body
of
a
Prisoner
in
his
Custody
;
who
refusing
to
make
his
Retorn
,
another
Day
was
give●
him
upon
pain
to
return
the
Body
.
If
the
Sheriff
takes
J.
S.
upon
a
Latitat
or
Capias
,
and
doth
not
retorn
the
Writ
,
an
Action
lies
against
him
.
CHAP.
IX
.
Remedy
against
the
Sheriff
for
a
False
Retorn
:
Where
and
in
what
Cases
,
and
what
Action
lies
against
him
for
a
False
Retorn
.
Where
such
Actions
are
to
be
brought
,
how
to
be
laid
,
and
the
manner
of
declaring
therein
.
Of
the
reason
of
the
Retorn
of
Cepi
Corpus
upon
Bail
taken
.
Where
Action
lies
against
the
Sheriff
or
Bayliff
of
a
Franchise
,
and
which
of
them
upon
a
False
Retorn
.
Remedy
against
the
Sheriff
for
not
Retorning
the
Writ
;
or
against
his
Bayliff
,
or
against
the
Bayliff
of
a
Franchise
.
Of
laying
the
Action
;
and
of
the
Declaration
thereon
.
Where
,
and
in
what
Cases
a
man
may
traverse
the
Sheriffs
Retorn
or
not
.
FOr
Remedy
against
Sheriffs
,
Bayliffs
and
Gaolers
,
and
where
the
Action
is
to
be
laid
as
to
Mis-feazance
,
Non-fezance
,
Faux-retorns
and
Non-retorns
,
vide
Stat.
W.
2.
c.
39.
For
Mis-feazance
,
1.
For
a
Faux
Retorn
;
where
and
in
what
Cases
Action
lies
,
and
where
not
;
and
where
and
how
such
Actions
are
to
be
brought
,
and
the
manner
of
Declaring
therein
.
In
Partition
,
or
other
Real
Action
,
if
the
Sheriff
Summoned
.
Retorn
the
Tenant
summoned
,
when
in
truth
he
was
not
,
Action
of
Deceit
lies
against
him
,
26
Ass.
48.
1
Brownl
.
157.
So
in
a
Real
Action
,
if
the
Demandant
deliver
a
Writ
of
Summons
to
the
Sheriff
,
and
the
Sheriff
summon
the
Tenant
accordingly
,
and
after
does
not
retorn
the
Writ
,
Action
on
the
Case
lies
against
him
,
H.
32
El.
B.
R.
Marsh
and
Astery
.
So
if
the
Sheriff
retorn
one
Summoned
or
Proclaimed
,
which
is
not
,
Action
on
the
Case
lies
;
but
this
is
not
assignable
for
Error
,
Mo.
349.
Corbet
and
Marsh
.
Action
on
the
Case
lies
against
the
Sheriff
Delivery
on
Inquisit
ion.
for
retorning
,
That
he
had
delivered
to
the
Plaintiff
,
upon
Inquisition
taken
where
he
refused
to
deliver
it
,
and
so
the
Retorn
is
false
;
tho'
it
was
objected
,
that
perhaps
the
possession
is
kept
against
him
manu
forti
.
But
per
Cur'
,
that
is
but
mitigation
of
Damages
;
but
his
Retorn
was
false
,
and
therefore
the
Action
lieth
,
1
Rol.
Abr.
738.
Lister
and
Bromley
.
If
the
Sheriff
retorn
Exigent
3
aut
4
exact'
,
Exigent
.
and
that
there
were
not
more
Counties
,
where
in
truth
there
was
a
fifth
County
;
the
Plaintiff
shall
have
Action
on
the
Case
against
him
,
9
H.
6.
60.
b.
Sheriff
arrests
the
party
,
and
yet
retorns
Non
est
inventus
;
Action
on
the
Case
,
or
Trespass
Non
est
inventus
.
or
False
Imprisonment
lies
against
him
;
for
he
is
a
Trespasser
ab
initio
,
Cro.
El.
729.
Hawkin's
Case
.
18
Ed.
4.
18.
Action
on
the
Case
was
against
the
Sheriff
,
Cepi
corpus
on
Stat.
23
H.
6.
for
that
he
arrested
J.
S.
and
set
him
at
large
absque
aliqua
securitate
inventa
for
his
Appearance
,
and
at
the
Day
retorned
Cepi
corpus
,
and
that
the
said
J.
S.
did
not
appear
at
the
Day
,
but
hid
himself
;
and
that
upon
an
Habeas
corpus
awarded
he
retorned
Paratum
habeo
,
which
was
Faux
,
whereby
the
Plaintiff
was
delayed
in
his
Suit
,
&c.
The
Defendant
pleaded
,
That
J.
S.
being
arrested
put
him
in
Sureties
for
his
Appearance
,
J.
N.
and
J.
D.
who
are
persons
of
sufficient
Estate
within
the
County
,
and
were
bound
to
him
in
40
l.
for
the
Appearance
of
J.
S.
at
the
Day
in
the
Writ
mentioned
,
and
pleaded
the
Statute
of
13
H.
6.
c.
10.
by
reason
whereof
he
let
him
at
large
,
and
traverseth
Absque
hoc
that
he
let
him
at
Large
,
absque
aliqua
securitate
inventa
prout
,
&c.
Cro.
El.
624.
Barton
and
Aldworth
.
The
Court
held
the
Plea
and
Traverse
to
be
good
;
for
he
is
by
the
Statute
compellable
to
take
Bail
,
and
it
s
left
to
his
discretion
what
Bail
to
take
:
And
altho'
he
had
not
the
Body
at
the
Day
,
and
afterwards
at
the
day
of
the
Habeas
corpus
retorned
,
quod
paratum
habco
,
when
he
was
at
Large
,
that
is
a
contempt
to
the
Co●●t
and
Fineable
;
but
it
s
nothing
as
to
the
party
,
nor
can
he
take
advantage
of
it
.
So
that
the
Law
which
has
been
disputed
,
is
Sheriff
not
charged
in
Action
on
the
Case
for
retorning
Cepi
corpus
,
when
he
had
bailed
the
party
.
23
H.
6.
10.
A
General
Law
in
some
Cases
.
setled
,
That
where
the
Sheriff
takes
Bail
according
to
the
Statute
of
23
H.
6.
and
retorns
Cepi
corpus
;
tho'
the
party
do
not
appear
at
the
Day
,
yet
the
Sheriff
shall
not
be
charged
in
an
Action
on
the
Case
for
a
False
Retorn
,
Siderfin
p.
22
,
23.
Allen
and
Robinson
,
Mo.
n.
590.
Langton
and
Gardner
.
For
the
Statute
of
23
H.
6.
is
a
General
Statute
,
of
which
the
Judges
shall
take
notice
;
but
if
it
does
not
appear
to
be
a
Retorn
within
the
Statute
,
but
at
Common
Law
,
there
for
his
Non-appearance
Action
lies
.
And
there
is
a
Case
in
Siderfin
on
this
Point
which
is
worth
observation
,
as
to
laying
the
Action
and
Pleading
:
Action
on
the
Case
was
brought
for
a
False
Retorn
,
i.
e.
Cepi
corpus
,
and
yet
he
had
him
not
at
the
Day
,
but
suffered
him
to
escape
.
The
Defendant
demurs
to
the
Declaration
.
Now
the
Action
is
good
,
because
the
Declaration
shall
be
taken
to
be
true
upon
this
Demurrer
.
And
the
Statute
of
23
H.
6.
is
in
part
a
private
Statute
,
and
the
Court
will
not
take
notice
of
it
without
pleading
it
.
But
had
the
Defendant
pleaded
it
Specially
,
or
had
he
pleaded
Not
Guilty
,
he
might
have
had
advantage
of
this
Statute
,
and
have
ousted
the
Plaintiff
of
his
Action
.
After
the
said
Statute
the
Sheriff
cannot
make
a
Special
Retorn
,
but
Cepi
corpus
,
or
Non
est
inventus
.
So
that
the
Case
of
Allen
and
Robinson
as
to
that
Point
,
is
good
Law
.
For
such
Action
lies
not
properly
against
the
Sheriff
,
because
the
Statute
of
23
H.
6.
compels
him
to
Bail
the
Prisoner
;
and
yet
the
Sheriff
shall
retorn
a
Cepi
corpus
,
as
formerly
,
Siderfin
p.
439.
Parker
and
Welby
.
Now
it
s
said
in
Benson
and
Welby's
Case
,
that
23
H.
6.
c.
10.
is
a
private
Statute
,
and
ought
to
have
been
pleaded
,
2
Sand.
154.
Benson
and
Welby
.
Now
that
Statute
,
as
Whelpdale's
Case
is
,
is
a
private
Law
as
to
Sheriffs
Bonds
;
but
as
to
Extortious
Fees
,
it
s
a
publick
Law
,
2
Keb.
626
,
657
,
Mod.
rep.
33.
mesme
Case
.
If
a
Sheriff
levy
Money
on
a
Levari
facias
,
Debt
vers.
Vic'
,
if
he
levy
the
Money
on
Levari
.
upon
a
Recognizance
,
at
the
Suit
of
J.
S.
and
retorns
the
Writ
served
,
J.
S.
may
have
Debt
against
the
Sheriff
,
or
against
the
Sheriffs
Executors
.
But
in
this
Case
the
Plaintiff
demurr'd
to
the
Defendant's
Plea
,
and
Concluded
ill
.
The
Plea
was
grounded
on
a
Release
,
and
he
should
have
demanded
Judgment
,
if
the
Defendant
should
be
admitted
to
plead
a
Release
made
after
the
Sheriff
had
made
his
Retorn
,
1
Rolls
Abr.
518.
Speake
and
Rich●●ds
,
1
Brownl.
57.
mesme
Case
.
Hob.
p.
206.
mesme
Case
.
Action
on
the
Case
lies
against
a
Sheriff
,
who
Action
lies
for
accepting
the
Retorn
of
one
that
is
not
Bayliff
.
Against
Bayliff
of
a
Franchise
.
accepts
of
a
Retorn
of
one
that
is
not
Bayliff
,
and
against
him
that
made
the
Retorn
,
Mo.
431.
Palmer
and
Smalbate
.
Action
on
the
Case
lies
against
the
Bayliff
of
a
Franchise
for
negligent
Execution
,
or
a
False
Retorn
,
Mo.
p.
431.
Action
on
the
Case
lies
against
a
Sheriff
,
for
For
making
other
Retorn
,
than
is
retorned
by
Bayliff
of
a
Liberty
.
Where
the
Action
lies
against
the
Sheriff
or
Bayliff
of
a
Franchise
on
a
False
Retorn
.
making
other
Retorn
than
is
retorned
to
him
by
a
Liberty
or
Bayliff
of
a
Franchise
,
who
had
Retorna
brevium
,
1
Roll.
rep.
119.
Upon
a
Fieri
fac
'
against
an
Administrator
,
the
Sheriff
makes
a
Warrant
to
the
Bayliff
of
a
Franchise
to
execute
it
,
and
after
the
Bayliff
is
removed
,
and
another
Bayliff
elected
;
and
after
the
old
Bayliff
retorns
in
his
own
Name
to
the
Sheriff
,
That
the
Administrator
had
not
any
Goods
praeterquam
,
&c.
which
is
false
,
and
after
the
Sheriff
makes
retorn
accordingly
to
the
Court
;
yet
no
Action
on
the
Case
for
this
False
Retorn
lies
against
the
Bayliff
.
For
the
Retorn
ought
to
have
been
made
of
the
new
Bayliff
,
and
so
the
Sheriff
had
accepted
a
Retorn
from
one
as
it
were
a
meer
stranger
,
and
so
void
.
And
he
ought
to
take
Cognizance
of
the
right
Ministers
of
Law
;
and
therefore
the
old
Bayliff
for
this
False
retorn
is
not
punishable
by
the
Law
,
but
the
Sheriff
,
1
Roll.
Abridgm
.
99.
Palmer
and
Marsh
.
If
the
Sheriff
retorn
Mandavi
ballivo
Libertatis
,
&c.
qui
mihi
responsum
dedit
,
&c.
if
the
Matter
of
the
Retorn
be
false
,
no
Action
lies
against
the
Sheriff
,
but
only
against
the
Bayliff
:
For
the
Sheriff
ought
to
accept
the
Retorn
of
the
Bayliff
,
and
not
examine
the
reality
of
it
,
(
if
it
be
sufficient
in
Law
)
1
Roll.
Abr.
98
,
99.
Palmer
and
Marsh
,
Cro.
El.
512.
Palmer
and
Potter
.
If
a
Venire
fac
'
comes
to
the
Sheriff
in
a
Against
the
Sheriff
,
for
a
Retorn
by
one
who
is
nor
Bayliff
of
a
Franchise
.
Quare
impedit
,
and
the
Sheriff
command
the
Bayliff
of
the
City
of
C.
to
retorn
the
Pannel
,
who
does
it
accordingly
,
where
he
had
not
any
Warrant
to
do
it
,
not
being
Bayliff
of
a
Franchise
,
whereby
the
Pannel
is
quasht
.
The
Plaintiff
for
this
default
in
the
Sheriff
,
and
for
his
Damages
shall
have
an
Action
on
the
Case
,
38
Assize
13.
The
Sheriff
upon
a
Fieri
facias
against
J.
S.
Against
the
Sheriff
,
and
not
against
the
Bayliff
.
makes
a
Warrant
to
J.
S.
to
execute
as
his
Bayliff
,
and
he
does
it
;
and
afterwards
the
Sheriff
makes
a
False
Retorn
,
(
viz.
)
that
the
Writ
came
Tardé
,
&c.
by
which
he
is
a
Trespasser
ab
initio
,
yet
it
amkes
not
the
Bayliff
a
Trespasser
,
2
Rol.
Abr.
562.
Parkes
and
Mosse
.
It
was
the
Opinion
of
all
the
Judges
in
the
Case
of
Fawces
and
Cotton
,
That
the
Sheriffs
submission
to
a
Fine
,
is
no
Conclusion
to
the
parties
grieved
,
to
bring
their
Actian
for
the
false
Retorn
of
the
Sheriff
,
if
it
were
so
,
Sir
Thomas
Jones
p.
39.
In
retorn
on
Elegit
,
the
Sheriff
Retorns
,
That
Case
,
and
not
Debt
.
he
had
appraised
the
Goods
in
specie
to
40
l.
and
extended
such
Lands
,
and
delivered
them
to
the
Plaintiff
.
Ubi
revera
he
never
delivered
them
to
the
Plaintiff
.
Action
of
Debt
lies
not
in
this
Case
,
but
Action
on
the
Case
;
for
it
is
no
Debt
in
the
hands
of
the
Sheriff
,
Cro.
Jac.
566.
Coryton
against
Thomas
.
And
it
s
not
like
to
Pyke's
Case
,
14
Jac.
which
was
,
the
Sheriff
on
a
Scire
fac
'
retorned
,
That
he
had
sold
the
Goods
for
so
much
Money
,
and
delivered
the
Money
to
the
Plaintiff
;
and
the
Plaintiff
thereupon
averring
that
he
had
not
the
Money
,
maintained
an
Action
of
Debt
:
For
there
the
Sheriff
confessed
by
his
Retorn
,
That
he
had
sold
the
Goods
,
and
delivered
the
Money
;
but
here
it
is
not
retorned
,
that
he
medled
with
the
Goods
,
or
the
value
of
them
,
so
as
there
is
not
any
Certainty
to
charge
him
,
Pyke's
Case
,
14
Jac.
Where
the
Action
is
to
be
brought
.
Action
for
a
False
Retorn
may
be
brought
in
the
County
where
this
was
,
or
in
Middlesex
where
the
Record
is
,
Cro.
Jac.
532.
Parkhurst
and
Powell
.
So
Escape
at
D.
in
Wales
,
and
the
Retorn
was
Non
est
Inventus
,
and
it
was
tryed
at
Westminster
,
the
False
Retorn
being
made
at
Westminster
,
which
is
the
cause
of
the
Action
,
2
Keb.
362.
Mancer
and
Smith
.
If
a
Sheriff
on
Cap'
Utlagat
'
will
not
arrest
the
party
,
but
retorn
Non
est
Inventus
,
an
Action
may
be
brought
against
him
in
the
County
where
he
received
the
Writ
;
or
in
Middlesex
,
where
the
Record
of
that
False
Retorn
is
,
at
Election
,
Hob.
209.
Siderfin
p.
218
,
219.
Russel's
Case
.
A
Doubt
was
,
Whether
Action
on
the
Case
for
a
False
retorn
on
Elegit
lies
in
the
County
where
the
retorn
of
the
Exigent
was
,
i.
e.
in
Middlesex
,
or
where
the
Land
lies
?
And
the
Court
inclined
.
that
it
lay
most
properly
in
Middlesex
,
Winch.
p.
100.
Sheir
against
Sir
Francis
Glover
.
One
brings
Debt
against
B.
Sheriff
of
the
County
Palatine
of
Lancaster
,
and
sues
him
to
Outlawry
on
Mesn
Process
,
and
had
a
Capias
directed
to
the
Chancery
of
the
County
Palatine
,
who
make
a
Precept
to
the
Coroners
of
the
County
,
being
Six
,
to
take
his
Body
and
have
him
before
the
Justices
of
the
Court
of
Common
Bench
at
Westminster
;
one
of
the
Coroners
being
in
sight
of
him
,
and
having
a
fair
opportunity
to
arrest
him
does
it
not
,
but
they
all
retorn
Non
est
inventus
.
The
Plaintiff
hereupon
brings
his
Action
against
the
Coroners
in
Middlesex
;
And
the
Court
inclined
,
that
the
Action
is
well
brought
in
Middlesex
;
because
the
Plaintiffs
Damages
arise
here
,
by
not
having
the
Body
here
at
the
Day
,
Bulmer's
Case
Rep.
and
Dyer
159.
The
Chancery
retorns
to
the
Court
the
same
Coroner
.
Answer
that
the
Coroners
return
to
him
,
so
that
the
False
Retorn
is
the
cause
of
prejudice
,
and
the
other
things
are
but
Arguments
to
prove
it
.
And
the
Court
conceived
an
Action
would
not
lye
against
one
Coroner
,
no
more
than
against
one
Sheriff
of
London
,
York
,
&c.
Mod.
Rep.
198.
Naylor
and
Sharpley
.
Of
Declarations
in
Actions
for
False
Retorns
.
In
Pigot's
Case
it
was
alledged
for
Error
that
the
Declaration
was
naught
:
1.
The
Bond
was
made
for
200
l.
dared
Process
before
the
Bond
made
.
29
Aug.
13
Jac.
and
this
was
before
the
Bond
made
;
yet
being
retornable
in
Michaelmas
Term
,
and
the
Latitat
upon
it
after
the
Bond
,
its
sufficient
to
maintain
the
Action
,
and
the
Process
always
bears
Teste
the
last
day
of
the
Term
before
.
2.
The
Declaration
is
,
The
Sheriffs
Bayliffs
It
s
not
shewed
the
Defendant
did
not
appear
.
arrest
the
party
,
and
the
Sheriff
falsly
retorned
Non
est
inventus
.
It
was
alledged
for
Error
,
that
the
Declaration
was
not
good
,
because
he
doth
not
shew
that
the
Bayliffs
delivered
the
Bond
to
the
Sheriff
,
which
they
had
taken
for
his
Appearance
;
nor
is
it
shewed
that
the
Defendant
did
not
appear
.
Sed
non
allocatur
.
For
these
serve
but
for
aggravation
of
Damages
,
and
are
supplied
by
the
Verdict
,
Cro.
Jac.
561.
Pigot
and
Rogers
.
Fieri
fac
'
for
Debt
was
delivered
to
the
Sheriffs
of
N.
who
executed
it
,
after
which
the
Sheriffs
were
discharged
of
their
Office
,
and
new
ones
elected
.
The
old
Sheriffs
redeliver
to
the
party
his
Goods
taken
in
Execution
,
and
indorse
Nulla
Action
against
the
old
Sheriffs
.
bona
on
the
Writ
of
Fieri
fac
'
,
and
deliver
it
to
the
new
Sheriffs
so
Indorsed
.
And
an
Action
on
the
Case
was
brought
against
the
old
Sheriffs
for
this
False
Retorn
,
and
Judgment
pro
Quer
'
.
And
these
Exceptions
were
taken
:
1.
The
Plaintiff
in
his
Declaration
does
not
say
,
that
the
old
Sheriffs
did
retorn
Nulla
bona
,
but
only
that
they
did
indorse
Nulla
bona
,
which
is
no
Retorn
.
2.
He
saith
not
,
they
delivered
this
Writ
thus
indorsed
to
be
retorned
,
i.
e.
by
Indenture
.
3.
It
appears
not
whether
any
Retorn
of
the
Tho'
it
appear
not
that
any
retorn
of
the
contrary
was
made
by
the
old
Sheriffs
.
Writ
were
made
by
the
old
Sheriffs
or
the
new
.
Per
Glyn
Chief
Justice
.
He
conceived
it
to
be
well
,
and
according
to
the
course
in
that
kind
.
For
the
old
Sheriffs
to
make
the
Retorn
,
and
to
deliver
the
Writ
over
by
Indenture
to
the
new
Sheriffs
,
and
here
was
a
Verdict
.
And
a
Retorn
is
not
properly
a
Retorn
till
it
be
filed
here
;
yet
it
is
the
Retorn
of
the
Sheriff
in
the
County
where
he
is
Sheriff
;
and
yet
it
seems
Judgment
was
reversed
.
Quaere
.
Style
p.
474.
Toft
and
Day
.
Action
on
the
Case
on
a
False
Retorn
of
Non
est
inventus
by
the
Sheriff
of
Galloway
in
Ireland
.
It
was
averred
,
that
the
Sheriff
at
the
time
of
the
delivery
of
the
Capias
had
the
person
in
Custody
at
Galloway
in
the
City
of
Dublin
,
and
the
Action
is
brought
in
the
County
of
the
City
.
Per
Sanders
.
On
a
Capias
delivered
to
the
Sheriff
out
of
the
County
,
he
is
not
bound
to
hold
him
there
.
So
upon
a
Latitat
,
which
is
no
Warrant
to
the
Sheriff
,
to
take
him
but
only
in
his
Bailywick
.
Per
Cur
'
.
This
may
be
by
Habeas
corpus
or
Fresh
Suit
,
and
being
after
Verdict
,
that
finds
the
False
retorn
(
for
the
retorn
was
Non
est
inventus
in
balliva
)
and
the
Jury
find
that
he
was
in
balliva
at
the
retorn
of
the
Writ
,
the
Court
will
presume
him
legally
in
Custody
,
3
Keb.
557
,
561
,
600.
Bradshaw
and
Andrews
.
Plaintiff
declares
,
he
had
prosecuted
a
Capias
against
Chapman
,
who
was
indebted
to
the
Plaintiff
in
100
l.
and
delivered
it
to
the
Sheriff
at
Newport
P.
and
that
the
Sheriff
postea
&
adtunc
&
ibidem
potuisset
arrestar
'
the
said
Chapman
;
but
that
the
Defendant
machinans
,
to
delay
the
Plaintiff
,
&c.
arrestare
the
said
Chapman
,
&c.
adtunc
&
ibidem
abstinuit
&
recusavit
,
and
had
falsly
retorned
Non
est
inventus
.
Defendant
pleads
Non
culp
'
,
and
Verdict
pro
Quer.
Per
Cur
'
.
After
Verdict
the
Declaration
is
good
enought
;
and
tho'
potuisset
arrestare
,
without
shewing
how
,
or
that
the
Defendant
was
in
view
of
Chapman
,
and
potuisset
denotes
a
possibility
;
and
this
is
true
if
he
were
in
the
County
,
and
the
Sheriff
is
not
bound
to
attend
his
Office
in
every
particular
case
;
yet
it
shall
be
intended
such
Matter
was
given
in
Evidence
,
by
which
it
appeared
to
the
Jury
,
that
the
Sheriff
potuisset
arrestare
,
and
the
Declaration
quod
recusavit
doth
imply
Opportunity
:
But
it
was
agreed
to
be
good
Cause
of
Demurrer
,
Sir
Tho.
Jones
p.
40.
Fish
versus
Aston
Sheriff
of
Bedford
.
Error
brought
by
the
Sheriff
,
upon
a
Judgment
against
him
upon
a
Writ
of
Scire
fac
'
,
for
an
ill
Retorn
of
a
Fieri
fac'
,
2
Sand.
338.
Actions
against
the
Sheriff
for
Non-feasance
.
For
not
retorning
of
Writs
.
If
a
Capias
issues
against
J.
S.
and
the
Sheriff
doth
not
make
any
retorn
upon
the
said
Writ
,
he
is
a
Trespasser
ab
initio
,
and
false
imprisonment
lies
against
him
.
16
H.
7.
14.
3
H.
7.
36.
21
H.
6.
5.
5
Rep.
Hoes
Case
.
Before
the
Stat.
W.
2.
19.
Regularly
for
not
retorning
a
Writ
the
Sheriff
was
amerced
Quousque
,
&c.
but
for
a
False
Retorn
or
imbesilling
the
Writ
,
Action
lay
at
Common
Law
.
Co.
2
Instit.
451.
Rast.
Entries
501
,
626.
Presidents
of
Actions
on
this
Statute
.
This
Statute
prevents
the
Retorn
of
a
Tarde
,
i.
e.
quod
breve
adeo
tarde
venit
,
quod
praeceptum
Regis
exequi
non
potuit
.
It
's
a
Question
in
Sir
William
Clarks
Case
if
●up
.
utlegat
.
Action
on
the
Case
lies
against
a
Sheriff
for
not
retorning
a
Cap.
Utlegat
.
It
seems
it
does
,
for
the
Party
has
loss
by
not
retorning
the
Writ
,
tho'
the
Queen
may
amerce
him
for
his
Contempt
.
Cro.
Eliz.
p.
873.
Sir
Will
.
Clark
.
Action
on
the
Case
lies
against
a
Sheriff
for
not
Summons
.
retorning
a
Summons
.
1
Leon.
146.
Marsh
and
Astrey
.
If
a
Capias
be
retorned
out
of
an
Inferior
Inferiour
Court
.
Court
to
an
Officer
of
the
Court
to
take
J.
S.
and
he
took
him
accordingly
,
and
does
not
retorn
the
Process
,
he
is
a
Trespasser
ab
initio
,
for
as
much
as
he
is
the
Officer
that
ought
to
retorn
it
,
Bayliff
errand
or
Servant
not
to
be
punished
for
not
retorn
of
the
Sheriff
.
and
he
is
a
Sheriff
within
his
jurisdiction
.
2
Rol.
Abr.
563.
Kirk
and
Atkins
.
If
a
Capias
in
Process
be
awarded
to
the
Sheriff
,
and
he
makes
his
Warrant
to
a
Bayliff-errant
,
who
is
a
sworn
and
known
Bayliff
within
●he
County
to
take
him
,
and
he
does
it
accordingly
,
if
the
Sheriff
does
not
afterwards
retorn
this
Writ
,
it
shall
make
him
a.
Trespasser
ab
initio
,
because
he
is
but
the
Sheriffs
Servant
,
and
for
this
he
ought
to
be
subject
to
the
wrong
done
to
the
party
as
his
Master
is
,
20
H.
7.
13.
21
H.
7.
22.
M.
14.
Car.
B.
R.
How
and
Stocken
har
.
But
if
the
Bayliff-errant
,
in
that
Case
,
retorn
the
Body
and
the
Warrant
to
the
Sheriff
,
altho'
the
Sheriff
doth
not
retorn
the
Writ
,
yet
he
is
excused
.
And
if
the
Sheriff
upon
such
Process
makes
special
Bayliffs
,
and
they
take
the
Party
,
and
the
Sheriff
doth
not
retorn
the
Writ
;
altho'
there
is
not
any
default
in
the
Bayliffs
,
yet
they
are
Trespasser
,
ab
initio
,
because
they
are
but
Servants
to
the
Sheriff
and
by
his
appointment
;
but
this
seems
a
sorry
reason
:
And
I
take
it
Girling
and
Allens
Case
is
good
Law
.
For
tho'
the
Sheriff
ought
to
retorn
his
Writ
,
otherwise
his
Justification
in
False
Imprisonment
is
not
good
;
yet
it
is
not
so
with
his
Servant
,
for
he
has
no
means
to
inforce
the
Sheriff
to
make
retorn
thereof
;
and
if
what
he
does
is
legal
,
it
shall
not
be
made
illegal
to
him
by
the
act
or
default
of
another
.
Crok
.
Car.
Gilling
and
Allen.
11
Car.
B.
R.
Upon
a
Capias
in
Process
,
if
the
Sheriff
makes
Where
no
default
is
in
the
Bayliff
of
a
Franchise
,
he
is
excused
.
his
Warrant
to
a
Bayliff
of
a
Franchise
to
execute
it
,
who
does
it
accordingly
,
and
makes
retorn
of
the
Body
and
Warrant
to
the
Sheriff
,
and
the
Sheriff
after
does
not
retorn
the
Writ
,
yet
this
shall
not
make
the
Sheriff
a
Trespasser
ab
initio
,
because
he
had
done
his
duty
,
and
no
default
is
in
him
,
and
he
is
the
Officer
of
the
Franchise
,
and
not
of
the
Sheriff
.
8
Ed.
417.
b.
21
H.
7.
22.
The
Court
was
moved
,
that
the
Sheriff
may
Sheriff
not
to
file
the
Retorn
,
depending
Action
on
the
Case
against
him
.
not
be
admitted
to
file
the
retorn
of
a
Writ
,
because
action
on
the
Case
was
depending
against
him
for
not
retorning
it
,
because
then
the
Action
would
abate
,
and
it
was
granted
by
Rolls
.
Stiles
408.
Laying
the
Action
and
Declaration
for
not
Retorning
.
In
a
Writ
of
Entry
sur
disseisin
,
the
Land
lying
in
the
County
of
H.
if
the
Plaintiff
deliver
the
Writ
of
Summons
to
the
Sheriff
of
H.
in
London
;
and
after
the
Sheriff
summons
the
Defendant
upon
the
Land
,
and
after
doth
not
retorn
the
Writ
;
for
which
Action
on
the
Case
is
brought
in
London
,
where
the
Writ
was
delivered
to
him
,
and
the
Defendant
pleads
he
did
not
summon
him
,
&c.
upon
which
they
are
at
issue
,
this
may
be
tried
in
London
.
2
Roll.
Abr.
807.
Rash
and
Astrey
.
Action
on
the
Case
against
an
Undersheriff
,
and
declares
,
whereas
the
Plaintiff
had
brought
a
Writ
of
Entry
against
H.
C.
and
delivered
it
to
the
Undersheriff
to
be
executed
in
forma
Juris
,
and
gave
him
two
shillings
for
the
executing
of
it
,
and
that
at
such
a
day
he
caused
the
said
H.
C.
to
be
summoned
,
yet
falso
,
&c.
he
did
not
retorn
the
Writ
of
Summons
at
the
day
of
the
retorn
.
Cro.
Eliz.
175.
Marsh
and
Astrey
.
and
p.
397.
Collet
and
Marsh
.
It
was
moved
in
Arrest
of
Judgment
,
for
that
It
is
not
averred
that
the
Officer
continued
in
his
Office
.
it
is
not
averred
he
was
Undersheriff
,
and
continued
in
in
his
Office
at
the
day
of
the
Retorn
;
for
otherwise
the
Action
lies
not
against
him
,
sed
non
allocatur
.
1
Leon.
146.
Mesme
Case
.
It
shall
be
intended
that
he
continued
in
his
Office
,
for
he
was
Undersheriff
when
the
Writ
was
delivered
to
him
;
and
't
is
alledged
that
he
caused
Summons
to
be
made
,
and
did
not
retorn
it
at
the
day
,
by
which
it
shall
be
intended
,
that
the
Authority
was
in
him
.
The
Declaration
was
,
that
the
said
Astrey
(
Defendant
)
intendens
&
machinans
ipsum
querentem
in
Action●
sua
praed'
prosequend'
impedire
,
&c.
did
not
retorn
the
Summons
,
but
saith
not
tunc
existen
'
Undersheriff
,
yet
it
's
good
;
and
if
the
Defendant
were
not
Undersheriff
,
the
same
shall
come
in
of
the
other
side
.
Where
a
man
may
have
a
Traverse
,
or
Aver
against
the
Sheriffs
Retorn
,
and
where
not
.
It
is
commonly
said
in
our
Books
,
that
no
Averment
shall
be
against
the
Sheriffs
Retorn
which
is
of
Record
,
and
therefore
in
a
Redisseisin
it
cannot
be
assigned
for
Error
that
the
Sheriff
non
accessit
ad
tenementa
,
as
he
hath
retorned
,
for
that
is
against
his
Retorn
,
which
is
recorded
.
Gaudy
in
Collet
and
Marshes
Case
.
Leon.
183.
Holl●●ds
Case
.
Gaudy
in
Collet
and
Marsh's
Case
,
1
Leon.
397
:
held
,
against
any
thing
done
or
retorned
by
a
Sheriff
,
as
an
Officer
,
there
may
be
an
averment
;
as
an
averment
against
a
Bishops
Certificate
;
but
the
other
Justices
contra
:
For
the
Justices
ought
to
credit
the
Officers
.
Error
because
the
Defendant
was
not
summoned
in
a
Praecipe
quod
reddat
,
at
the
Church
door
,
according
to
the
Stat.
31
Eliz.
c.
3.
and
by
reason
of
the
default
a
grand
cape
was
awarded
,
and
the
Sheriff
retorned
him
summoned
at
the
Church
Door
.
Per
Cur'
,
he
shall
not
have
this
Averment
,
but
his
Action
of
Deceipt
against
the
Sheriff
,
Cro.
Eliz.
Action
sur
Deceipt
,
but
not
on
an
Averment
.
397.
Collet
and
Marsh's
Case
,
so
Cro.
El.
9.
10.
Clay's
Case
.
If
in
Partition
the
Sheriff
Retorn
,
he
was
there
in
proper
person
,
and
this
Retorn
be
received
,
and
the
Writ
filed
,
then
the
Court
cannot
examine
it
;
for
the
Retorn
is
good
,
and
the
party
can
have
no
Averment
against
the
Retorn
,
nor
Error
.
The
Jury
appeared
on
a
Trial
,
and
the
Defendant
would
have
challenged
the
Array
ore
tenus
;
because
it
was
Retorned
by
one
S
—
Sheriff
,
two
days
after
he
had
received
a
Writ
of
Discharge
.
Per
Cur'
,
He
cannot
Challenge
it
for
that
Cause
;
because
it
would
be
a
direct
Averment
against
the
Record
,
for
it
was
Retorned
by
him
as
Sheriff
,
and
the
Retorn
accepted
,
Cro.
El.
369.
Hore
and
Broom
.
In
the
Lady
Russel
and
Wood's
Case
,
Cro.
El.
780.
the
Kings-Bench
would
suffer
a
Traverse
to
a
Sheriff's
Retorn
,
because
it
is
False
.
As
4
El.
Dyer
412.
and
in
the
Common-Bench
is
usual
,
and
Presidents
ordered
to
be
searched
.
Sed
distinguendum
est
.
And
I
shall
shew
in
what
Cases
one
may
aver
against
the
Retorn
of
the
Sheriff
.
A
man
may
aver
against
the
Retorn
of
the
Matter
Collateral
.
Sheriff
,
if
the
Retorn
be
a
matter
Collateral
.
As
if
the
Sheriff
upon
a
Capias
retorn
a
Rescous
,
there
may
be
an
Averment
against
it
,
Owen
132.
So
Winch.
p.
100.
in
another
Action
Averment
may
be
against
the
Retorn
of
the
Sheriff
,
tho'
In
another
Action
.
not
in
the
same
Action
;
as
5
Ed.
4.
for
False
retorn
.
Winch
.
p.
100.
Stiles
versus
Sir
Francis
Glover
.
If
the
Retorn
of
the
Sheriff
concern
my
Inheritance
,
Retorn
concerns
●
mans
Inheritance
.
I
shall
have
averment
against
it
.
2
Rolls
Rep.
54.
In
a
Praecipe
quod
reddat
,
at
the
Summons
retorned
,
he
may
say
that
his
name
is
T.
B.
and
that
he
was
summoned
by
the
name
of
J.
B.
because
otherwise
he
shall
lose
his
Land
by
default
,
19
H.
6.
10.
b.
If
the
Sheriff
retorn
a
man
outlawed
of
In
Outlawry
for
Felony
.
Felony
,
he
may
aver
against
this
Retorn
,
that
he
came
in
at
the
5th
County
,
and
tendred
Sureties
,
and
so
was
Outlawed
;
for
this
is
in
case
of
Life
and
Member
,
1
Ed.
3.
24.
b.
On
Scire
fac
'
against
the
Tertenants
,
the
Tertenants
Defendant
after
the
Retorn
of
the
Sheriff
pleads
,
that
he
is
not
Tertenant
.
The
Plaintiff
demurs
;
because
,
as
Cro.
El.
872.
Blood's
Case
,
he
is
estopped
by
the
Sheriffs
Retorn
.
And
in
Rastall's
Entries
,
Tertenancy
is
traversed
:
And
4
El.
Dyer
212.
the
Retorn
of
a
Capias
is
traversed
as
to
Rescue
.
And
Cro.
El.
859.
it
s
agreed
,
that
Waste
is
traversable
Waste
.
on
the
Retorn
of
the
Sheriff
.
But
per
Cur'
a
general
Non
tenure
by
Lessee
for
years
is
pleadable
;
for
else
his
possession
would
be
disturbed
by
Ejectment
,
Cro.
El.
872.
Co.
Ent.
620
,
622.
3.
4.
Cro.
El.
859.
3
Keb.
170.
Witrony
versus
Blany
.
So
per
Windham
.
In
some
Cases
one
may
Diversity
between
a
general
Nontenure
,
and
a
special
Nontenure
,
pleaded
.
plead
and
aver
against
the
retorn
of
the
Sheriff
,
as
to
a
Scire
facias
,
that
there
were
other
Ter-tenants
not
named
;
for
he
is
not
Omniscient
.
And
tho'
the
Sheriff
retorn
that
such
are
Ter-tenants
,
yet
that
shall
not
conclude
the
Defendant
,
but
that
he
may
say
another
is
Tertenant
of
parcel
,
who
is
not
warned
.
But
Rolls
is
express
,
that
Nontenure
cannot
be
pleaded
in
〈◊〉
●gainst
the
Retorn
of
the
Sheriff
,
1
Keb.
55.
〈◊〉
〈◊〉
Cro.
Jac.
50.
Mitchell's
Case
,
2
Rolls
〈◊〉
〈◊〉
In
Waste
,
if
the
Officer
retorn
,
That
the
Jury
Waste
.
View
.
had
the
View
;
yet
if
the
contrary
appear
by
Examination
at
the
Trial
,
the
Retorn
shall
not
conclude
any
of
the
parties
,
2
Sand.
255.
Green
and
Cole
.
Tho'
a
man
may
not
aver
contrary
to
the
Averment
,
that
he
was
not
Sheriff
.
Sheriffs
Retorn
;
yet
he
may
say
,
he
which
had
Indorsed
his
Name
on
the
Backside
of
the
Writ
was
not
Sheriff
,
because
by
the
Common
Law
,
until
the
Stat.
of
Ed.
2.
c.
no
Sheriff
or
Officer
used
to
put
their
Names
to
the
Retorns
;
and
this
Averment
,
That
he
that
made
the
Retorn
is
no
true
Officer
,
is
not
taken
away
by
the
Statute
,
Yelv.
p.
34.
Arundell's
Case
.
If
Bayliffs
of
Franchises
that
have
Retorns
of
Averment
against
false
Retorns
of
Bayliffs
of
Franchises
.
Writs
,
make
a
False
retorn
,
the
party
shall
have
Averment
against
it
,
as
well
of
too
little
Issues
as
of
other
things
,
as
well
as
he
shall
have
against
the
Sheriff
;
but
all
the
punishment
shall
be
upon
the
Bayliffs
,
Dr.
&
Stud.
2d
Book
42.
c.
The
Sheriff
retorns
a
Rescous
on
Mean
process
to
a
Writ
of
Priviledge
,
and
Attachment
awarded
nisi
causa
.
The
Preignotaries
affirmed
that
the
parties
might
traverse
the
Retorn
;
but
Tota
Curia
of
Opinion
to
the
contrary
,
Sir
Tho.
Jones
p.
39.
Fawcett
and
Cotton
.
CHAP.
X.
Of
Venire
facias
,
Habeas
Corpora
Juratorum
,
and
Distringas
.
What
Retorns
shall
be
good
on
a
Venire
,
&c.
or
not
.
Amendments
of
Venire's
,
&c.
Of
Tales
.
Venire
fac'
,
Habeas
corpora
&
Distringas
.
Of
the
Statutes
of
Jeofails
.
THe
principal
Statutes
of
Jeofails
are
8
H.
6.
c.
12
,
&c.
15.
32
H.
8.
c.
30.
18
El.
c.
14.
21
Jac.
c.
13.
16
&
17
Car.
2.
c.
8.
8
H.
6.
c.
12.
extends
to
any
Record
,
Specialty
,
Copy
,
&c.
2.
Parol
.
3.
Plea
.
4.
Warrant
of
Attorney
.
5.
Writ
Original
and
Judicial
.
6.
Pannel
.
7
:
Retorn
.
But
by
it
misprision
of
Clarks
are
only
amendable
:
But
it
extends
not
to
an
Insufficient
Trial
,
where
the
Venue
is
mistaken
.
It
extends
not
to
a
Retorn
of
a
Sheriff
,
where
it
should
be
by
a
Coroner
.
Nor
to
a
Trial
by
one
not
retorned
in
the
Venire
fac
'
.
Nor
to
a
Retorn
of
a
Venire
fac
'
without
the
Name
of
the
Sheriff
.
Now
these
Misprisions
are
not
remedied
by
8
H.
6.
c.
2.
32
H.
8.
nor
18
El.
c.
4.
(
Viz.
)
Where
the
Retorn
is
by
the
Sheriff
,
where
it
ought
to
be
by
the
Coroner
,
when
the
Sheriff
does
not
put
his
Name
to
the
Retorn
of
the
Jury
;
when
no
Retorn
is
on
the
Venire
fac
'
;
nor
when
one
gives
a
Verdict
,
who
is
not
retorned
;
nor
to
Insufficient
Trials
,
where
the
Venue
is
mistaken
,
8
Rep.
Blackamore's
Case
.
By
the
Stat.
21
Jac.
c.
13.
After
Verdict
Judgment
shall
not
be
arrested
,
for
that
the
Venire
fac'
,
Hab.
corpora
,
or
Distringas
,
was
awarded
to
a
wrong
Officer
,
upon
any
insufficient
Suggestion
,
or
that
the
Venue
was
in
some
part
misawarded
,
or
issued
out
of
more
or
fewer
places
than
it
ought
to
be
,
so
as
some
one
place
be
right
named
.
Or
for
misnaming
any
of
the
Jurors
either
in
the
Sirname
,
or
any
addition
in
any
of
the
Writs
or
Retorns
thereof
,
so
as
constat
de
persona
.
Or
for
a
want
of
retorn
of
any
of
the
said
Writs
,
so
as
a
Pannel
be
retorned
and
annexed
thereunto
;
or
for
that
the
Officer's
Name
is
not
set
to
the
Retorn
.
No
Acts
of
Jeofails
extend
to
Appeals
or
Pleas
of
the
Crown
;
nor
to
Actions
or
Informations
on
Penal
Laws
,
except
in
16
&
17
Car.
2.
other
than
concerning
Customs
,
Subsidies
of
Tonnage
and
Poundage
,
to
which
it
extends
not
.
But
the
Stat.
21
Jac.
helps
not
,
if
the
Christian
Name
of
a
Juror
be
mistaken
,
and
the
Law
notwithstanding
Codwell's
Case
.
5
Rep.
Roll.
176.
and
Cro.
Jac.
458.
Goddard's
Case
remains
as
it
was
.
But
it
s
amendable
per
Stat.
18
Eliz.
as
a
discontinuance
of
Process
,
as
Teppet
on
the
Venire
,
and
Tippet
on
the
Distringas
was
amended
.
So
Samuel
in
the
Venire
,
and
Daniel
in
the
Nomina
Jurator
'
.
If
there
be
no
Venue
,
it
s
aided
by
16
&
17
Car.
2.
after
a
Verdict
,
if
the
Cause
be
tryed
in
the
proper
County
where
the
Action
is
laid
,
2
Sand.
227.
Perry's
Case
in
Skinner's
Case
.
Vide
infra
.
If
the
Plaintiff
deliver
the
Venire
to
the
Sheriff
Venire
with
●
Proviso
.
Tardè
,
so
late
that
he
cannot
serve
it
,
the
Defendant
shall
have
a
Writ
with
a
Proviso
;
but
at
the
same
time
the
Plaintiff
may
have
another
Writ
,
and
the
Sheriff
may
not
retorn
which
of
them
he
pleaseth
,
the
Proviso
ought
to
be
quando
duo
brevia
sunt
in
eodem
gradu
&
qualitate
,
8
H.
6.
6.
If
the
default
be
in
the
Plaintiff
after
Issue
in
the
prosecuting
of
the
Venire
facias
,
then
the
Defendant
may
have
a
Venire
facias
with
a
Proviso
;
but
not
an
Habeas
corpus
with
a
Proviso
,
until
the
Plaintiff
have
made
a
default
in
the
same
Writ
.
For
he
ought
only
to
have
the
same
Process
with
a
Proviso
,
in
which
there
was
a
default
of
the
Plaintiff
first
;
and
therefore
tho'
the
Defendant
had
a
Venire
facias
with
a
Proviso
,
upon
a
default
of
the
Plaintiff
,
yet
he
cannot
have
a
Nisi
prius
by
Proviso
,
without
another
default
of
the
Plaintiff
.
Note
.
The
Venire
ought
to
be
delivered
to
the
When
th●
Venire
ought
to
be
delivered
to
the
Sheriff
.
Sheriff
four
days
before
the
Retorn
of
it
,
if
the
Jury
dwell
forty
Miles
off
,
and
eight
days
if
they
dwell
further
from
the
place
where
the
Trial
is
to
be
,
Pract.
Reg.
87
,
333.
The
Name
of
the
Sheriff
to
the
Distringas
and
Tales
,
are
of
necessity
;
and
to
the
retorn
of
the
Habeas
●orpora
by
the
Statute
of
York
,
12
Ed.
2.
c.
5.
and
these
are
not
holpen
by
any
of
the
Statutes
of
Jeofails
,
Cro.
El.
310.
Steyner
and
James
,
Cro.
Jac.
188.
Holdswrith's
Case
,
Cro.
El.
509.
Blodwell's
Case
;
482.
Weare's
Case
.
What
Retorn
shall
be
good
in
a
Venire
,
or
not
;
and
what
shall
be
Error
,
and
what
amendable
.
Insufficient
Retorns
are
aided
by
the
Statute
Omission
.
of
Jeofails
:
As
upon
the
retorn
of
the
Venire
fac
'
there
wanted
these
words
,
Quilibet
Jurator'
per
Legios
.
This
is
not
,
as
if
there
was
no
Retorn
at
all
.
And
per
Cur'
,
its
an
Insufficient
retorn
which
is
aided
,
and
it
was
awarded
to
be
amended
;
for
the
omission
▪
of
Pledges
is
but
Matter
of
Form
,
and
not
like
to
Dr.
Hussey's
Case
,
where
there
was
a
want
of
an
Original
.
And
so
in
2
Roll.
Rep.
87.
the
Sheriff
retorns
a
Venire
fac
'
,
(
viz.
)
Executio
istius
brevis
,
&c.
and
the
Pannel
of
the
Jurors
was
filed
to
it
;
but
under
the
Names
of
the
Jurors
he
omitted
to
file
the
Pledges
,
Cro.
Jac.
Moor
and
Blackwell
,
2
Roll.
Rep.
87.
In
the
Writ
of
Venire
fac
'
awarded
to
the
Sheriff
of
Somerset
the
word
(
Vicecomiti
)
was
omitted
;
yet
he
retorned
the
Pannel
,
and
his
Name
was
endorsed
.
Per
Cur'
,
it
is
Error
;
but
because
upon
the
Roll
it
was
Vic'
Somerset
,
it
was
amended
,
Cro.
Car.
595.
Sloper
and
Child
.
Venire
fac
'
was
album
breve
(
i.
e.
)
no
Name
of
the
Sheriff
was
endorsed
.
It
was
denied
to
be
amended
,
1
Brownl
.
43.
Bullen
and
Jarvis
.
The
retorn
of
a
Venire
by
one
Sheriff
of
London
,
is
ill
,
and
not
helped
by
the
Stat.
21
Jac.
But
a
Certiorari
Coronatoribus
,
where
there
is
but
one
,
is
well
enough
,
Hob.
70.
1
Keb.
The
King
against
Percival
.
A
Venire
facias
was
awarded
in
the
time
of
Variance
.
Queen
Elizabeth
▪
and
a
Distringas
with
Nisi
prius
in
the
time
of
King
James
,
reciting
quod
distringat
Juratores
nuper
summonit'
in
Curia
nostra
,
whereas
in
truth
there
had
not
been
any
Summons
in
Curia
of
the
King
,
but
of
the
Queen
only
,
and
Trial
and
Judgment
thereupon
;
and
it
was
Reversed
for
this
Error
.
For
this
Distringas
Distringas
,
Nisi
prius
.
with
Nisi
prius
is
a
special
Authority
to
the
Justices
,
who
being
Justices
by
the
special
Commission
,
and
not
having
Authority
to
take
any
Jury
but
such
as
was
summoned
in
Curia
Regis
,
there
being
none
such
,
the
Trial
by
the
Jury
was
Erroneous
,
Goodwin's
Case
,
cited
in
Comyn's
Case
;
Cro.
Jac.
161.
But
in
the
principal
Case
,
which
was
Error
of
a
Judgment
in
Durham
,
such
Case
was
amended
;
because
the
Justices
of
Durham
Amendment
in
Durham
,
and
why
.
are
Original
Judges
of
the
whole
Record
,
and
had
the
Record
before
them
at
the
time
of
the
Trial
,
and
the
Writ
being
variant
might
be
amended
there
,
Cro.
Jac.
161.
Goodwin's
Case
.
The
Venire
was
between
Heath
and
J.
T.
and
the
Sheriff
retorned
it
to
be
between
Heath
and
W.
T.
This
was
a
Mis-tryal
,
and
Judgment
shall
not
be
for
the
Plaintiff
,
Winch.
p.
73.
Trist's
Case
.
Venire
fac
'
bears
Teste
on
a
Sunday
;
it
was
amended
after
Trial
,
Short
and
Arundel's
Case
.
A
Venire
fac
'
bore
Teste
out
of
Term
,
and
made
Amendment
by
the
Roll.
to
accord
with
the
Roll
,
Gonnel's
Case
;
and
a
Distringas
was
amended
a
long
time
after
the
Trial
;
yet
,
the
Roll
being
good
,
it
was
amended
,
Cro.
Jac.
161.
Comyn's
Case
.
Venire
awarded
,
Vicecomitibus
Lond'
praecipimus
sibi
,
was
amended
after
Verdict
.
So
if
after
the
Hebeas
ibi
hoc
breve
,
if
the
nomina
Jurator
'
be
left
out
,
Cro.
El.
543.
Roll.
201.
In
the
award
of
a
Venire
fac'
super
quo
praeceptum
fuit
Vicecomiti
Com'
,
&c.
it
is
Error
;
it
ought
to
have
been
Praeceptum
est
,
2
Sand.
393.
The
Nisi
prius
Roll
is
,
That
Challenge
being
Amendment
.
made
to
the
Sheriff
after
Issue
and
Confessed
,
a
Venire
fac
'
was
awarded
to
the
Coroners
;
but
the
Roll
of
Nisi
prius
was
,
that
the
Venire
fac
'
was
awarded
to
the
Sheriff
.
Per
Cur'
,
This
Roll
of
Nisi
prius
being
a
Misprision
and
which
ought
to
be
warranted
by
the
Record
,
ought
to
be
amended
,
Cro.
Jac'
.
353.
Sir
Ed.
Musgrave
,
Winch.
Rep.
p.
73.
If
the
Sheriff
retorn
,
That
there
are
no
Freeholders
Where
a
Venire
fac
'
shall
be
of
the
Issue
next
●●ning
.
of
the
Visne
,
or
if
the
Visne
be
where
the
Kings
Writ
runs
not
;
as
in
the
Cinque
Ports
,
&c.
or
in
a
place
where
the
men
are
priviledged
from
serving
on
Juries
out
of
that
place
,
as
the
Isle
of
●ly
,
&c.
the
Plaintiff
may
pray
a
Venire
fac
'
of
the
Visne
next
adjoyning
;
and
if
the
Visne
be
in
Wales
(
where
the
Kings
Writ
runs
not
)
the
Venire
fac
'
shall
be
directed
to
the
Sheriff
of
the
next
English
County
,
to
cause
the
Jury
to
come
de
propinquiore
Visne
of
his
County
to
the
Visne
in
Wales
adjoyning
;
for
the
Court
shall
not
be
ousted
of
the
Plea
,
Fitzh
.
Abr.
tit
.
Visne
8.
Jurisdict.
24.
If
the
words
(
quorum
quilibet
habeat
)
be
left
out
,
or
duodecim
,
or
qui
nulla
affinitate
attingunt
;
these
are
amendable
,
as
Mistakes
of
the
Clerks
,
Roll.
204
,
205.
Venire
fac
'
was
in
this
manner
,
Jacob'
,
&c.
Vicecomiti
salutem
,
and
saith
not
o●
what
County
;
it
was
amended
,
Cro.
Jac.
78.
Low
and
Lacock
.
Venire
fac
'
what
Retornable
coram
Majore
&
Ballivis
de
Exceter
,
without
saying
in
Curia
vel
hic
.
It
s
Error
;
because
it
may
be
Retorned
in
a
Tavern
,
Siderfin
p
77.
Davies
and
Pitts
.
If
a
Venire
fac
'
be
quasht
for
Consanguinity
to
the
Sheriff
,
a
Venire
fac'
de
novo
shall
be
granted
to
the
Coroners
,
2
Roll.
Abr.
720.
The
awarding
of
a
New
Venire
fac
'
to
the
Sheriff
,
where
the
Veniri
fac
'
was
quasht
for
Favour
in
the
Under-sheriff
,
is
not
Error
,
1
Roll.
Rep.
272.
A
Venire
fac
'
is
to
the
Coroners
,
without
any
Process
directed
to
a
wrong
Office●
,
not
amendable
.
Suggestion
at
all
of
any
Challenge
to
the
Sheriff
.
This
is
not
aided
by
21
Jac.
c.
13.
nor
by
the
16
&
17
Car.
2.
c.
8.
and
the
Court
cannot
amend
this
direction
of
Process
to
a
wrong
Officer
;
and
the
Court
cannot
examine
the
Truth
without
a
Suggestion
.
And
Judgment
was
arrested
,
3
Keb.
624.
Hancock
and
Weyman
.
Venue
awarded
to
the
Coroners
,
and
Tales
to
the
Sheriff
,
is
Erroneous
,
Cro.
El.
574.
Morgan
and
Wye
.
If
a
Venire
fac
'
be
directed
to
the
Coroners
,
all
the
Coroners
ought
to
joyn
in
the
Retorn
,
and
so
both
of
the
Sheriffs
of
London
ought
to
joyn
,
or
else
the
Retorn
is
not
good
,
Hobart
97.
The
Sheriff
need
not
retorn
the
Names
of
all
the
24
on
the
Distringas
,
Hab'
corpora
,
or
Venire
fac
'
,
nor
affix
them
to
the
said
Writs
,
1
Keb.
418.
Coldham
and
Loe.
And
it
was
agreed
per
Cur'
,
2
Roll.
Rep.
111.
Distriugas
amended
per
le
Vic'
.
because
the
Venire
fac
'
was
good
and
well
Retorned
,
the
Distringas
shall
be
awarded
by
the
Sheriff
,
2
Roll.
Rep.
111.
If
a
Distringas
sicut
alias
issue
against
the
Jury
,
and
no
other
Distringas
was
awarded
against
them
before
,
by
which
the
supposal
of
the
Writ
is
false
,
yet
this
is
not
Error
;
for
the
Venire
fac
'
serves
instead
of
a
Distringas
.
2
Roll.
Rep.
133.
The
Pannel
of
the
Hab.
corpora
was
amended
upon
the
Sheriffs
Oath
.
And
where
the
Distrngas
was
blank
,
yet
the
Venire
fac
'
was
well
retorned
,
Cro.
Jac.
483.
Church
and
Wright
.
A
contrary
Distringas
is
by
the
Sheriff
put
to
the
right
Pannel
and
Tried
▪
The
Trial
was
held
good
,
so
tho'
no
Distringas
had
been
;
for
as
this
is
,
there
is
no
Writ
between
the
parties
,
3
Bulstr.
180.
Fowkes
and
Child
.
Tales
not
retorned
by
the
Sheriff
or
his
Deputy
,
or
any
sworn
Officer
;
but
by
a
Clerk
of
the
Court
,
by
general
appointment
of
the
Sheriff
it
s
well
enough
,
and
the
Sheriff
is
answerable
for
it
,
1
Keb.
357.
Lestrange
and
Temple
.
Array
retorned
by
the
Sheriff
,
after
his
Discharge
,
is
not
good
,
Cro.
El.
369.
Hore
and
Broom
.
Presidents
,
Distringas
Juratores
on
the
Hustings
;
vid.
the
Form
,
2
Sand.
240.
Retorn'
de
Venire
fac'
Jur
'
Executio
istius
brevis
patet
in
quadam
pannella
hui●
brevi
annex'
.
A.
B.
Armig.
Vic'
.
Nomina
Jurator'
inter
A.
B.
Quer'
&
C.
D.
Def.
in
placito
Transgress
.
Then
Write
down
the
Names
of
the
24
Jurors
thus
:
-
A.
W.
de
E
gen'
&
sic
ad
24.
-
F.
C.
de
W.
Yeoman
&
sic
ad
24.
-
Quilibet
Jurator'
praedictor'
per
se
separatim
Manucapt
'
,
-
Or
,
Attachiatus
est
per
pleg
'
.
-
J.
D.
-
R.
R.
-
A.
B.
Armig
'
Vic'
.
The
like
in
the
Habeas
corpora
.
Only
in
the
Retorn
of
this
Writ
the
Sheriff
must
retorn
Issues
on
every
person
,
Exitus
eorum
cujuslibet
—
x
s.
or
more
,
Dalt
.
c.
58
CHAP.
XI
.
Of
Habeas
Corpus
,
and
Retorns
upon
it
.
Of
Habeas
Corpus
.
The
several
sorts
,
and
the
consequence
thereof
.
Of
the
Retorns
of
Habeas
Corpus
by
the
Sheriff
,
&c.
and
in
respect
of
the
Courts
commanding
.
Rules
on
Habeas
Corpus
,
who
to
pay
the
Charges
.
The
Forms
of
the
Retorns
.
AN
Habeas
Corpus
is
either
ad
subjiciend
'
,
which
Habeas
Corpus
ad
subjiciend
.
Habeas
Corpus
ad
respondend'
recipiend
,
&c.
is
granted
on
the
Criminal
side
,
or
an
Habeas
Corpus
ad
respondend'
recipiend'
or
faciend
'
granted
on
the
Pleas
side
;
for
so
the
Court
of
the
Kings
Bench
is
divided
in
the
practise
of
it
,
(
that
is
to
say
,
)
into
Criminal
Causes
between
the
King
and
the
Party
,
and
Civil
Causes
between
Subject
and
Subject
.
Now
an
Habeas
Corpus
ad
respondend
'
is
,
when
any
one
is
Imprisoned
at
the
Suit
of
another
upon
a
Legal
Process
in
the
Fleet
,
or
any
other
Prison
except
the
Kings
Bench
Prison
,
and
a
third
person
would
Sue
that
Prisoner
in
this
Court
(
B.
R.
)
and
cannot
because
he
is
not
in
Custody
of
the
Marshal
of
this
Court
,
there
he
may
have
an
Habeas
Corpus
to
remove
the
Prisoner
out
of
the
Prison
where
he
is
into
this
Court
,
to
answer
to
his
Action
here
.
This
is
called
a
Habeas
Corpus
cum
causa
;
and
an
Habeas
Corpus
cum
causa
doth
remove
the
Prisoner
for
whom
it
is
granted
,
and
all
the
Causes
which
are
then
depending
against
;
him
for
upon
Habeas
Corpus
to
an
Inferiour
Court
,
to
remove
Corpus
cum
causa
,
they
ought
to
return
all
▪
the
Causes
that
are
depending
there
concerning
the
Party
that
hath
the
Habeas
Corpus
,
(
if
any
of
the
Causes
depending
be
above
5
l.
)
Stiles
Rep.
150.
When
an
Habeas
Corpus
is
Awarded
and
Bail
taken
though
they
be
not
Filed
,
yet
presently
the
Prisoner
is
discharged
,
and
his
Sureties
also
in
the
Inferiour
Court
.
Cro.
Jac.
203.
Franley
and
Basset
.
One
was
in
Execution
in
the
Fleet
,
for
a
Debt
recovered
against
him
in
B.
R.
he
being
before
condemned
in
the
Kings
Bench
,
for
another
Debt
,
was
by
Habeas
Corpus
cum
causa
removed
into
the
Kings
Bench
;
per
Cur.
in
this
Case
he
may
acknowledge
satisfaction
for
both
Debts
in
B.
R.
he
being
in
the
Custody
of
the
Marshal
for
both
Debts
.
If
the
Marshal
suffer
him
to
Escape
,
he
shall
be
charged
for
both
the
Debts
.
Dyer
152
,
307.
As
for
Retorns
of
Habeas
Corpus
.
What
shall
be
a
good
Retorn
on
Habeas
Corpus
,
or
Corpus
cum
causa
.
An
Habeas
Corpus
to
remove
one
committed
for
Debt
from
one
Prison
to
another
,
may
be
granted
Retornable
immediate
,
or
indilate
,
for
this
is
only
an
Habeas
Corpus
ad
Recipiend
'
in
the
nature
of
it
.
An
Habeas
Corpus
is
not
a
Record
till
it
be
Amendment
.
Retorned
and
Filed
,
and
then
it
cannot
be
amended
,
but
it
may
be
amended
before
it
s
Filed
.
Whatsoever
person
,
or
by
what
means
soever
Conclusion
of
the
Retorn
.
he
was
committed
,
the
conclusion
of
the
Retorn
ought
to
be
Corpus
tamen
ejus
paratum
habo
;
yet
it
cannot
always
be
so
.
1
Leon.
p.
70.
An
Habeas
Corpus
ad
subjiciend
'
is
always
intended
Retorn
by
the
Chancellor
of
Durham
.
to
him
that
has
the
Body
,
tho'
ad
faciend
'
may
be
circular
,
as
an
Habeas
Corpus
was
directed
to
the
Chancellor
of
Durham
,
that
he
make
a
Precept
to
the
Sheriff
,
to
have
the
Body
coram
nobis
apud
Westm
.
The
Retorn
is
,
that
the
Chancellor
issued
a
Precept
to
the
Sheriff
to
return
his
Body
before
him
;
and
that
the
Sheriff
returned
paratum
habet
,
and
it
s
not
said
the
Chancellor
had
him
here
,
which
is
ill
per
Cur.
for
it
should
be
cujus
Corpus
paratum
habeo
,
in
this
Court
.
3
Keb.
229.
the
King
against
Pell
and
Offley
.
Habeas
Corpus
was
directed
to
the
Steward
and
Cause
of
commitment
shewed
.
Marshal
of
the
Marshalsea
for
H.
the
Marshal
Retorns
the
said
H.
was
committed
to
the
Custody
,
per
mandatum
Francisci
Walsingham
Mil'
principalis
Secretar
&
unius
de
privat'
Concilio
Domini
Regis
.
This
is
insufficient
,
because
the
Cause
of
Commitment
is
not
set
down
in
the
Retorn
;
Then
it
was
amended
and
Retorned
in
this
manner
—
ex
sententia
&
mandato
totius
Concilij
privati
Domini
Regis
ità
qd'
ejus
corpus
habere
non
possumus
.
This
per
Cur
'
is
in
sufficient
also
;
he
ought
to
have
concluded
Corpus
ejus
tamen
parat'
habeo
.
Note
,
Where
the
Party
is
committed
by
the
whole
Councel
,
no
cause
of
the
Committment
need
to
be
shewed
.
1
Leon.
p.
70.
On
Latitat
the
Sheriff
Retorned
,
that
he
had
By
Habeas
Corpus
to
bring
into
Chancery
.
Arrested
the
Defendant
,
and
that
such
a
day
,
and
before
the
Retorn
of
the
Latitat
,
Habeas
Corpus
was
to
bring
the
Body
into
Chancery
,
and
there
the
Prisoner
was
Discharged
;
the
Retorn
is
good
,
for
the
Sheriff
is
bound
to
obey
the
Kings
Writs
,
and
he
cannot
compel
the
Parties
to
put
in
Sureties
here
in
B.
R.
But
it
was
ill
done
of
the
Master
of
the
Rolls
to
Discharge
him
.
Per
Curiam
,
we
have
oftentimes
persons
here
upon
Habeas
Corpus
,
who
are
also
Arrested
by
Process
out
of
the
Exchequer
,
or
of
the
Common
Pleas
;
but
we
will
not
Discharge
them
before
they
have
found
Sureties
for
their
appearance
,
and
we
cannot
punish
the
Sheriff
,
for
the
Habeas
Corpus
was
first
retornable
before
the
Latitat
.
But
because
the
Retorn
was
à
custodia
nostra
exoneratus
fuit
,
which
might
be
intended
as
to
the
Cause
in
Chancery
only
,
and
not
for
the
Cause
here
,
for
he
hath
not
alledged
,
that
he
was
committed
to
any
other
in
Custody
;
the
Sheriff
was
to
amend
his
Retorn
.
1
Leon.
145.
Cary
Amendment
.
and
Dennis
.
A
Retorn
of
Habeas
Corpus
by
the
Warden
of
the
Fleet
,
was
propter
contemptum
extra
Cur'
Cancellariae
.
It
s
not
good
,
1
Rolls
Rep.
92.
General
Directions
for
Writs
of
Habeas
Corpus
,
Error
or
Priviledge
,
vid.
Compleat
Solicitor
106
,
and
other
Manuals
.
On
Habeas
Corpus
the
Sheriff
Retorns
,
that
the
That
the
Justices
committed
him
for
a
Fine
.
Justices
of
Peace
committed
the
Plaintiff
for
a
Fine
on
Contempt
,
for
which
the
Court
awarded
him
to
remain
in
Prison
till
payment
.
Siderfin
p.
144.
the
King
versus
Mayo
.
The
Retorn
on
Habeas
Corpus
was
a
Protection
.
Protection
.
1
Leon.
p.
70.
Searchers
Case
.
Note
,
The
Retorn
of
an
Habeas
Corpus
ought
Retorn
to
be
Writ
on
Parchment
.
to
be
Written
in
Parchment
,
and
not
on
Paper
;
for
the
Retorn
is
to
be
Filed
,
and
made
a
Record
of
Court
,
and
all
Records
are
to
be
Written
on
Parchment
:
And
therefore
,
after
the
Retorn
is
Read
and
Filed
in
Court
it
cannot
be
amended
:
But
in
Hob.
p.
113.
An
Habeas
Corpus
was
Retorned
without
the
Sirname
of
the
Sheriff
,
and
after
Verdict
amended
.
It
is
agreed
,
The
Retorn
of
an
Habeas
Corpus
Amendment
.
Good
to
common
intent
.
need
not
be
so
punctual
as
a
Plea
,
because
not
made
by
Persons
of
such
Learning
as
Pleas
are
;
but
if
they
be
good
to
common
intent
and
substance
,
it
s
enough
.
Upon
Habeas
Corpus
granted
by
the
Kings
Rule
to
bring
in
the
Body
.
Bench
to
the
Warden
of
the
Fleet
,
to
have
here
in
Court
the
Body
of
D.
W.
the
same
Retornable
at
a
day
certain
;
at
which
day
the
Warden
of
the
Fleet
did
refuse
to
make
his
Retorn
,
and
to
bring
in
the
Body
.
And
the
Court
entred
a
Rule
to
bring
in
the
Body
of
B.
W.
the
next
day
Sub
Poena
20
l.
and
so
are
all
Presidents
of
Felony
and
Treason
.
Note
,
If
it
appear
that
the
Committment
is
good
,
and
there
is
good
Cause
;
the
Court
remands
the
Prisoner
;
if
it
is
not
good
,
they
Discharge
him
,
if
it
be
doubtful
they
Bail
him
.
The
Sheriff
may
suggest
,
that
the
Party
will
Who
to
pay
the
Charges
of
the
Retorn
.
not
pay
his
Charges
of
Retorn
of
Habeas
Corpus
,
ad
faciend'
&
recipiend'
,
which
is
at
the
Suit
of
the
Party
.
But
contra
in
Habeas
Corpus
,
ad
faciend'
&
subjiciend'
,
which
is
at
the
Suit
of
the
King
,
he
must
Retorn
at
his
Peril
.
1
Keb.
272
,
280.
the
King
versus
Armiger
.
And
on
Habeas
Corpus
to
remove
any
Prisoner
,
the
Sheriff
must
Retorn
the
Writ
,
and
the
Court
will
allow
his
Charges
here
.
So
in
the
Case
of
the
Steward
of
—
Upon
Habeas
Corpus
,
the
Officer
ought
to
bring
the
Prisoner
to
the
Court
,
and
the
Court
shall
tax
Charges
and
compel
payment
,
if
the
Officer
and
Prisoner
,
or
Plaintiff
cannot
agree
,
or
payment
be
not
made
according
to
the
Agreement
.
Sir
Tho.
Jones
p.
178.
Error
on
a
Scire
fac
'
,
on
the
Sheriffs
Retorn
being
an
Original
Suit
,
lies
not
in
the
Exchequer
Chamber
;
but
Error
on
Scire
fac'
Quare
Executionem
non
,
hath
been
constantly
allowed
to
lie
there
.
2
Keb.
833.
Jones
and
Anderson
.
The
Form
of
the
Retorn
.
Languidus
,
Detent'
in
Prisona
,
attamen
Corpus
ejus
,
&c.
The
Causes
of
the
Caption
and
Detention
Retorned
.
vide
Dalton
cap.
63.
that
he
was
taken
in
Execution
by
the
late
Sheriff
,
&c.
that
he
was
Imprisoned
by
a
Justice
of
Peace
his
Warrant
.
Retorn
of
a
Certiorari
per
Viscount
.
The
Sheriffs
of
London
appeared
in
Court
in
their
proper
person
,
upon
a
Rule
of
Court
,
to
shew
Cause
why
they
did
not
grant
out
Execution
,
upon
a
Judgment
given
in
their
Court
,
or
else
to
make
a
sufficient
Retorn
of
a
Certiorari
directed
to
them
,
because
they
had
made
three
insufficient
Retorns
.
Stiles
p.
444.
A
Certiorari
was
directed
to
the
Sheriff
to
certifie
,
whether
the
Conisor
in
a
Recognizance
had
an
Heir
.
Jones
p.
319.
CHAP.
XII
.
How
many
sorts
of
Juries
.
Of
Retorns
,
and
by
whom
Retorned
;
what
manner
of
persons
shall
not
be
Retorned
on
Juries
,
and
how
they
shall
be
Discharged
.
Where
,
when
,
and
how
persons
exempt
shall
have
Action
against
the
Sheriff
for
Impannelling
them
.
Of
returning
trop
petit
Issues
.
Of
levying
the
Issues
.
Of
other
Erroneous
proceedings
,
and
misdemeanors
of
Sheriffs
about
Jurors
.
What
Estate
every
Juror
must
have
by
the
late
Statute
of
4
&
5
W.
&
M.
Of
Challenges
,
The
several
sorts
and
causes
of
Challeng
,
and
what
are
good
or
not
,
and
when
to
be
taken
.
Of
Enquiry
.
Of
Tryals
betwixt
Party
and
Party
.
Jurors
are
of
two
Sorts
.
Juries
to
Enquire
,
are
grand
Juries
at
Assizes
,
or
the
Quarter
Sessions
.
So
Juries
Retorned
before
Justices
of
Peace
,
to
enquire
of
Riots
,
Forcible
Entries
,
and
Juries
Retorned
before
Commissioners
of
Sewers
,
or
upon
the
Statute
of
Bankrupts
,
Coroners
,
&c.
and
Inquisitions
taken
before
the
Sheriff
,
and
all
these
the
Sheriff
is
to
Summon
(
except
Bankrupts
.
)
Qu.
Now
upon
every
Tryal
in
personal
Actions
the
Sheriff
must
Retorn
two
Hundredors
at
least
.
Cok.
Litt.
1
25
,
158.
As
for
the
number
of
Jurors
Retorned
,
vid.
Dalton
86.
Retorn
of
Jurors
.
If
it
be
conceived
an
indifferent
Jury
will
Jury
Retorned
by
the
Secondary
.
not
●e
Retorned
in
the
Country
,
the
Court
on
motion
will
order
the
Sheriff
to
attend
the
Secondary
of
the
Office
with
the
Book
of
his
Freeholders
,
to
have
an
indifferent
one
Retorned
,
Pract.
Reg.
163.
So
it
was
done
in
Pooles
and
Markham
Case
,
Stiles
477.
because
the
Plaintiff
in
a
former
Tryal
between
the
Parties
had
Feasted
four
of
the
Jury
,
and
had
Feasted
some
of
the
Jury
that
were
Retorned
upon
that
Tryal
;
and
the
like
was
done
in
Coxes
Case
,
15
&
16
Car.
2.
B.
R.
because
Cox
who
was
Intitled
to
the
Reversion
,
had
forbid
Rent
to
be
paid
by
the
Tenants
,
and
took
on
him
the
defence
of
the
Ejectment
brought
against
the
Tenants
,
was
of
Kindred
to
the
Sheriff
and
Undersheriff
,
and
Trustee
for
them
:
But
in
another
Cause
,
17
Car.
2
B.
R.
The
Court
on
Certificate
of
a
Judge
,
that
Verdict
was
given
contrary
to
Evidence
,
would
not
allow
,
that
the
Sheriff
should
bring
in
the
Book
of
Freeholders
to
the
Secondary
for
the
ill
Example
;
but
ordered
the
Sheriff
should
Retorn
a
good
Jury
in
the
new
Tryal
.
Upon
motion
that
the
Cause
to
be
Tryed
at
the
Bar
is
of
great
consequence
,
the
Court
will
make
a
Rule
for
the
Sheriff
to
Retorn
48
Jurors
upon
the
Jury
.
Pract.
Reg.
163.
When
a
Tryal
is
to
be
for
a
thing
which
concerns
Who
to
Retorn
the
Jury
.
the
Undersheriff
,
there
the
High
Sheriff
shall
Retorn
the
Jury
;
aliter
,
if
the
Tryal
concerns
the
High
Sheriff
,
the
Undersheriff
shall
not
Retorn
the
Jury
,
but
the
Coroners
.
Pract.
Reg.
164.
What
manner
of
persons
shall
not
be
Impanelled
on
8
Rep.
5.
3.
6
Rep.
108.
9
Rep.
49.
Juries
,
and
how
they
shall
be
Discharged
,
and
where
they
shall
have
Actions
against
the
Sheriff
for
Impannelling
of
them
.
The
Sheriff
ought
not
to
Retorn
Priviledge
,
Exemption
.
to
be
exempt
from
Juries
;
but
he
ought
to
Summon
,
and
shall
not
be
liable
to
an
Action
.
Siderfin
p.
243.
The
King
and
Percival
,
the
Case
was
,
Venire
fac
'
was
awarded
to
the
Sheriff
of
the
City
and
County
of
Canterbury
,
to
Retorn
a
Jury
here
at
the
Bar
,
and
upon
the
Distringas
the
Sheriff
Retorns
this
to
be
an
Antient
City
and
County
,
and
that
the
King
had
granted
to
them
an
Exemption
,
not
to
serve
in
any
Jury
out
of
their
City
,
except
in
Cases
of
High
Treason
;
and
by
express
words
,
that
they
should
not
serve
coram
ipso
Rege
.
Per
Cur'
.
First
,
The
Retorn
is
ill
:
Because
,
if
it
were
in
the
power
of
the
Sheriff
to
Retorn
Priviledge
,
he
cannot
do
this
upon
the
Distringas
or
Habeas
Corpus
,
as
he
did
here
;
because
by
the
Retorning
of
the
Venire
.
(
viz.
)
That
there
are
24
prob'
&
Legales
homines
he
had
concluded
himself
,
there
being
also
Pledges
upon
every
such
Retorn
.
Secondly
,
That
the
Sheriff
may
not
Retorn
so
Priviledge
of
Exemption
,
when
to
be
clai●ed
.
at
any
time
,
but
ought
to
Retorn
them
Summoned
,
and
the
Parties
ought
to
come
here
;
and
then
every
person
who
had
cause
of
Priviledge
ought
to
calim
here
in
person
,
and
not
the
Sheriff
for
them
.
More
883
;
30.
Wallers
Case
,
Siderfin
293.
The
King
and
Percival
.
The
Court
awarded
an
alias
Distringas
,
in
regard
the
Sheriff
cannot
vary
from
the
first
Venire
Retorned
;
but
must
have
the
same
Men
,
Keb.
867.
mesme
Case
.
And
no
Action
lies
against
the
Sheriff
,
upon
their
Delivery
of
the
Writ
of
Exemption
,
Hardress
.
Rep.
389.
mesme
Case
.
But
in
the
Town
of
Darby
,
and
Foxleys
Case
,
Action
,
on
the
Case
against
the
Sheriff
for
Retorning
one
exempt
1
Rol.
Rep.
119.
Action
on
the
Case
adjudged
to
lie
against
the
Sheriff
,
for
Retorning
one
of
a
Jury
,
who
lived
in
a
place
which
his
exempt
,
and
Co.
Mag'
chap.
382
,
130
,
447
,
488
,
461.
Action
,
on
the
Case
lies
against
the
Sheriff
,
for
Retorning
a
person
exempt
of
a
Jury
.
The
Sheriff
must
not
Retorn
magis
remotos
,
minus
What
Jurors
the
Sheriff
must
Retorn
.
sufficientes
&
magis
suspectos
,
by
the
Statute
W.
2.
chap.
38.
and
if
he
do
,
the
Plaintiff
or
Demandant
shall
recover
Damages
by
the
Statute
,
if
he
be
delayed
,
and
the
Defendant
,
if
he
lose
his
Land
,
and
Articuli
super
chartas
gives
double
Damages
to
the
Demandant
.
The
Sheriff
by
Statute
W.
2.
c.
38.
must
not
Retorn
Men
,
decrepit
senes
ultra
70
annos
,
hominos
non
in
patria
commorantes
.
This
Statute
is
a
direct
Prohibition
in
it self
,
and
therefore
the
Party
grieved
may
have
Action
on
the
Act
against
the
Sheriff
,
without
giving
notice
of
Sickness
,
Notice
.
or
Non-commorancy
;
yet
the
use
is
to
Sue
out
a
Writ
grounded
on
this
Statute
,
that
he
Retorn
them
not
,
and
notice
by
word
is
good
,
if
notice
were
requisite
,
Co.
2
Inst.
477.
Peers
of
Parliament
not
to
be
Impannelled
,
Remedy
for
undue
Retorns
.
Who
is
the
party
grieved
that
shall
have
his
Action
.
nor
Tenants
in
Antient
Demesne
.
Where
the
Demandant
or
Plaintiff
is
delayed
of
his
Suit
,
by
such
Retorn
of
the
Sheriff
,
as
magis
remotos
,
he
shall
by
the
Statute
recover
Damages
against
him
,
or
where
the
Defendant
,
after
he
has
lost
his
Land
by
the
Oath
of
them
so
Retorned
contrary
to
the
Form
of
the
Statute
;
and
after
he
doth
convict
them
in
an
Attaint
and
so
is
restored
,
he
may
then
have
his
Action
on
this
Statute
for
his
Damages
,
2
Inst.
448.
sur
Stat.
W.
2.
c.
38.
If
one
dwell
in
Middlesex
,
and
had
Freehold
in
the
County
of
York
over
40
l.
the
Sheriff
of
York
may
not
Summon
him
to
Middlesex
,
to
Try
a
Cause
at
the
Bar
in
Westminster
for
Land
in
Yorkshire
,
W.
2.
c.
42.
1
Rol.
Rep.
163.
In
a
Writ
of
Right
or
any
other
Writ
,
a
Baron
Peer
.
of
the
Realm
may
excuse
himself
.
Action
on
the
Statute
,
W.
2.
c.
8.
for
Retorning
Men
more
remote
or
suspected
,
Count
and
Bar
inde
.
Dr.
Bonhams
Case
.
8
Rep.
118.
Upon
a
Tryal
between
a
Peer
and
another
,
Peer
.
the
Sheriff
must
retorn
a
Knight
;
but
if
he
do
not
,
and
the
Peer
doth
not
challenge
the
Array
,
but
the
Jury
give
a
Verdict
,
he
shall
not
have
advantage
of
this
afterwards
,
Lord
Powes
and
Kertman
P.
9
Car.
A
Jury
was
Empannelled
of
the
Town
of
Southampton
,
and
called
to
the
Bar
and
made
default
,
and
the
Men
of
that
Town
shewed
to
the
Court
a
Grant
made
to
the
Inhabitants
of
that
Town
,
that
no
Retorn
should
be
made
of
the
Men
of
that
Town
to
be
of
any
Jury
,
and
prayed
the
allowance
of
their
Charter
;
and
the
Court
appointed
them
to
plead
their
Charter
,
and
so
they
did
,
1
Brownl.
p
,
36.
If
a
Man
has
a
Charter
of
Exemption
,
and
sheweth
it
to
the
Sheriff
,
yet
he
may
Retorn
him
;
for
the
Sheriff
is
not
a
Judge
to
allow
or
disallow
his
Charter
,
but
he
must
Sue
out
a
Writ
of
allowance
of
his
Charter
,
and
deliver
the
Writ
to
the
Sheriff
,
and
shew
his
Charter
to
him
,
and
then
if
the
Sheriff
Retorn
him
,
Action
on
the
Case
lies
against
him
.
On
a
Dorsetshire
Tryal
at
the
Bar
,
on
default
of
all
the
Jurors
but
three
,
It
appeared
,
that
She●iff
countermands
the
Summons
the
Sheriff
had
by
command
of
the
Plaintiff
,
countermanded
their
Summons
against
the
Gree
of
the
Defendant
,
who
now
prayed
a
Tryal
.
But
this
being
impossible
,
for
the
Court
in
such
Case
will
not
supply
the
Jury
with
a
Tales
de
Circumstantibus
:
No
Tales
de
circumstantibus
on
Tryal
at
Bar.
But
they
offered
to
Non-suit
the
Plaintiff
on
Record
,
and
conceived
the
Defendant
should
contribute
to
the
payment
of
the
Jury
,
because
they
should
remain
indifferent
Jurors
,
2
Siderfin
77.
Hunt
and
Hollis
.
Retorn
of
a
Distringas
,
for
appearance
of
the
President
.
Defendant
in
the
Hustings
,
2
Sanders
233.
Retorn
of
a
Jury
by
the
Bedels
of
the
four
next
Wards
,
2
Sanders
244.
If
the
Sheriff
Retorn
but
40
l.
which
is
the
Issues
.
Action
case
against
the
Sheriff
for
Retorning
two
several
Issues
.
usual
Issues
on
Distring
as
Juratores
,
the
Court
on
prayer
of
the
party
cannot
cause
him
to
Retorn
greater
;
but
only
make
a
Rule
,
that
good
Issues
be
Retorned
:
But
by
Twisden
Action
on
the
Case
lies
against
the
Sheriff
,
1
Keb.
475.
The
Plaintiff
ought
to
bring
a
Writ
against
the
Sheriff
on
Averment
against
the
Sheriffs
Retorn
of
Issues
.
Averment
,
that
he
might
have
levied
greater
Issues
,
and
so
the
Court
may
increase
them
.
Note
,
Before
Stat.
W.
2.
c.
39.
the
Plaintiff
could
not
aver
against
the
Retorn
of
the
Sheriff
,
if
he
Retorned
too
small
Issues
,
for
he
is
but
an
Officer
in
Court
,
and
has
no
day
in
Court
to
answer
the
Plaintiff
party
:
But
now
by
1
Ed.
3.
the
Plaintiff
may
aver
what
the
value
of
the
Issues
be
,
Rents
of
the
Land
,
Corn
in
the
Grange
,
What
shall
be
said
Issues
.
Hay
in
the
Barn
,
all
moveables
except
Riding
furniture
,
and
Utensils
of
House
.
Retorn
of
the
grand
Inquest
.
Stat.
11
H.
7.
c.
9.
No
Indictment
shall
be
found
by
any
persons
named
to
the
Justices
,
without
due
Retorn
of
the
Sheriff
,
but
by
Inquest
of
lawful
liege
People
Retorned
by
the
Sheriff
.
One
Scarlet
whom
the
Sheriff
had
not
Retorned
,
by
confederacy
betwixt
him
and
the
Clark
who
read
the
pannel
,
procured
himself
to
be
sworn
of
the
grand
Jury
,
with
intent
to
indict
his
Neighbours
maliciously
,
and
he
did
so
;
he
was
adjudged
an
Justices
may
alter
the
Pannel
.
Offender
within
this
Law
,
and
by
Statute
3
H.
8.
c.
10.
The
Justices
of
Gaol
Delivery
,
or
Justices
of
the
Peace
,
of
whom
one
to
be
of
the
Quorum
,
in
open
Court
may
alter
the
Pannel
Retorned
by
the
Sheriff
,
to
enquire
of
the
King
only
,
by
Addition
,
or
substraction
of
any
of
the
Jurors
so
Retorned
,
and
they
have
power
to
command
the
Sheriff
,
to
put
other
in
the
Pannel
according
to
their
Discretion
.
And
the
Sheriff
ought
to
Retorn
the
Pannel
,
so
reformed
upon
the
Penalty
of
the
said
Act.
So
that
none
can
be
of
any
Grand
Inquest
,
but
by
the
Retorn
of
the
Sheriff
,
Coke
12
Rep.
Rob.
Scarlets
Case
,
Dalton
.
394.
Note
,
By
the
Statute
of
4
&
5
of
William
and
Mary
,
all
Jurors
are
not
to
have
10
l.
per
annum
vide
infra
.
It
is
very
needful
for
the
High
Sheriff
,
to
have
a
Book
containing
the
Names
of
all
the
Freeholders
in
his
County
,
and
their
sufficiences
,
that
he
may
make
the
Pannells
according
to
his
Oath
,
and
better
know
Pledges
and
Sureties
.
As
for
Issues
lost
for
default
of
appearance
,
scilicet
by
Jurors
,
or
by
Tenant
,
or
Demandant
;
the
Sheriff
may
not
levy
till
they
shall
be
estreated
under
the
Seal
of
the
Exchequer
,
and
the
same
delivered
to
him
,
for
without
Warrant
he
may
not
Levy
the
same
,
27
Ed.
1.
c.
7.
Other
erroneous
Proceedings
and
Misdemeanors
of
Sheriffs
,
about
and
concerning
Jurors
.
After
the
parties
were
at
Issue
in
Trespass
,
and
an
Habeas
corpus
awarded
against
the
Jury
,
the
Common-Bench
(
in
which
the
Action
depended
)
Supersedeas
restrains
the
Sheriff
from
Retorning
a
Jury
.
awarded
a
Supersedeas
,
quia
improvidè
,
&c.
which
was
delivered
to
the
Sheriff
,
who
notwithstanding
retorned
the
Jury
and
tryed
the
Cause
.
This
was
assigned
for
Error
,
and
in
nullo
est
erratum
pleaded
,
it
was
adjudged
Error
.
For
the
Error
assigned
is
a
Matter
of
Fact
,
depending
on
a
Matter
of
Record
;
and
then
the
Defendant
What
is
confessed
by
pleading
In
nullo
est
erratum
.
by
pleading
In
nullo
est
erratum
had
confessed
this
,
(
that
is
to
say
)
That
such
Supersedeas
was
awarded
and
delivered
to
the
Sheriff
before
the
Trial.
Upon
which
it
follows
,
that
after
the
Supersedeas
delivered
,
the
hands
of
the
Sheriff
are
closed
,
that
he
cannot
proceed
to
distrain
the
Jury
,
nor
to
Retorn
the
Writ
before
the
Justices
of
Assize
.
It
s
a
manifest
Error
,
if
the
Sheriff
Retorn
the
Writ
of
Hab'
corpora
at
the
Assizes
with
Nisi
prius
after
Supersedeas
awarded
for
staying
the
Retorn
of
the
Writ
;
as
the
Proceedings
are
erroneous
in
Inferior
Courts
after
Habeas
corpus
delivered
without
a
Procedendo
,
Yelv.
p.
57.
King
and
Andrews
.
Cro.
Jac.
p.
43.
King
and
Hill
.
It
is
not
necessary
for
the
Sheriff
to
Retorn
Reasonable
things
shall
be
intended
to
be
done
.
the
Pannel
of
the
Jurors
Names
,
but
to
say
they
are
de
vicineto
of
such
a
place
;
for
so
it
shall
be
intended
,
and
the
Forms
of
all
Retorns
of
Jurors
are
so
,
Pract.
Reg.
tit
.
Retorn
.
In
a
Writ
of
Error
Eleven
Jurors
were
Retorned
and
one
Stranger
;
yet
because
it
was
the
Retorn
of
the
Sheriff
,
it
shall
not
abate
,
1
Roll.
Rep.
302.
The
Statute
of
—
Eliz
—
provides
,
There
Reasonable
things
intended
to
be
done
.
shall
be
two
Hundredors
in
a
Jury
;
yet
it
s
never
seen
that
the
Retorn
of
the
Sheriff
is
so
.
So
the
Statute
of
42
Ed.
3.
c.
11.
is
,
That
the
Sheriff
shall
arraign
the
Pannel
in
Assize
four
days
before
the
Assize
,
yet
its
never
Retorned
to
be
so
done
;
but
such
reasonable
things
shall
be
intended
to
be
done
,
unless
the
contrary
appear
,
2
Siderfin
p.
144.
Barclee's
Case
.
An
Attorney
was
picked
over
the
Bar
,
for
directing
a
Sheriff
to
retorn
Jurors
Names
,
Mo.
882.
n.
1237.
Hanson's
Case
.
Note
,
But
now
by
the
Statute
of
4
&
5
W.
&
M.
Stat.
4
&
5
of
W.
&
M.
all
Jurors
(
other
than
Strangers
,
per
medietatem
Linguae
)
Retorned
upon
Trial
of
Issues
joyned
in
the
Kings-Bench
,
Common-Pleas
or
Exchequer
,
or
before
Justices
of
Assize
,
or
Nisi
prius
,
Oyer
and
Terminer
,
Gaol-delivery
,
or
General
Quarter
Sessions
of
the
Peace
,
shall
have
in
their
own
Name
or
Trust
within
the
same
County
Ten
pounds
per
annum
above
Reprizes
,
of
Freehold
or
Copyhold
Land
,
or
in
Ancient
Demesn
,
or
in
Rents
in
Fee-simple
,
Fee-tail
,
or
for
their
own
or
some
other
persons
Life
;
and
in
Wales
Eight
pounds
per
Annum
.
If
any
be
retorned
of
Lesser
Estate
,
he
may
be
discharged
by
Challenge
,
or
upon
his
own
Oath
;
nor
shall
a
Jurors
Issues
be
saved
but
by
Order
of
Court
,
for
reasonable
Cause
proved
upon
Oath
.
The
Sheriff
,
Coroner
,
or
other
Minister
retorning
any
person
of
Lesser
Estate
,
shall
forfeit
Five
pounds
to
Their
Majesties
for
every
person
so
Retorned
.
They
must
be
summoned
six
Days
before
the
day
of
their
Appearance
,
and
none
shall
take
a
Reward
to
excuse
a
Jurors
appearance
,
on
pain
to
forfeit
Ten
pounds
to
Their
Majesties
.
This
Act
extends
not
to
Cities
,
Burroughs
or
Towns
Corporate
.
Of
Challenges
.
A
Challenge
to
the
Jurors
is
Twofold
:
-
To
the
Array
,
Polls
.
To
the
Array
,
is
,
to
except
against
all
the
persons
Impannelled
:
And
as
to
this
there
is
a
-
Challenge
Principal
,
or
for
Favour
.
Note
,
That
the
Challenge
to
the
Array
is
in
respect
of
the
partiality
or
default
of
the
Sheriff
,
or
other
Officer
that
made
the
Retorn
,
and
not
in
respect
of
the
Persons
retorned
,
where
there
is
no
partiality
or
default
in
the
Sheriff
.
For
if
the
Challenge
to
the
Array
be
found
against
the
party
that
takes
it
;
yet
he
shall
have
his
particular
Challenge
to
the
Polls
.
If
the
Sheriff
or
other
Officers
be
of
Kindred
or
Affinity
to
the
Plaintiff
or
Defendant
;
if
the
Alliance
continue
,
a
good
cause
of
Challenge
,
1
Bulstr.
5
,
6
,
7
,
8.
Earl
of
Salop
versus
Earl
of
Rutland
.
Challenge
was
taken
to
the
Array
,
because
the
Sheriff
was
Cousin
to
the
Lessor
in
Ejectment
,
and
concludes
not
to
the
Favour
;
it
s
a
principal
Challenge
.
Yet
in
Roll.
Rep.
183.
it
s
adjudged
a
Principal
Challenge
;
and
in
1
Roll.
Abr.
328.
Guest
and
Bridgman
,
saith
,
It
is
not
a
Principal
Challenge
that
the
Lessor
is
Cousin
.
But
Trin.
1657.
B.
R.
in
the
Lord
Brook's
Case
its
a
Principal
Challenge
,
Cro.
Jac.
575.
Simonds
and
Walsh
,
2
Rolls
Abr.
182.
Venire
fac
'
was
awarded
to
the
Coroners
on
surmize
,
that
the
Lessor
in
Ejectment
was
Servant
to
the
Sheriff
.
It
was
doubted
,
whether
it
was
a
Principal
Challenge
in
1
Jac.
Harbottle's
Case
.
Coke
said
,
It
was
Adjudged
in
27
El.
in
Packington's
Case
,
that
it
was
not
a
Principal
Challenge
;
but
in
Spicer's
Case
it
is
Resolved
otherwise
,
Cro.
Jac.
21.
Dyer
7
,
367.
If
the
Challenge
be
taken
for
Cosinage
,
it
ought
to
be
shewed
coment
Cousin
;
but
in
such
case
Challenge
to
a
Juror
,
is
not
necessary
.
It
s
clearly
a
good
Challenge
to
the
Array
,
that
the
Sheriff
is
Cousin
to
the
Wife
of
the
Defendant
,
tho'
the
Wife
is
no
party
to
the
Action
:
But
it
must
be
averred
,
that
she
was
alive
,
or
had
Issue
at
the
making
of
the
Pannel
.
1.
If
the
Jury
may
try
a
Challenge
for
Cosinage
of
the
Sheriff
to
the
Plaintiff
or
Defendant
,
and
sometime
the
Coroners
,
or
Attorneys
in
Court
,
are
Elisors
,
2
Roll.
Rep.
363.
Lloyd
and
Elisors
.
Williams
.
If
the
Defendant
challenge
the
Array
,
for
that
the
Sheriff
is
Cousin
to
the
Plaintiff
;
it
is
no
Counterplea
of
the
Challenge
that
the
Sheriff
is
also
Cousin
to
the
Defendant
;
but
the
Array
shall
be
quasht
,
because
the
Defendant
first
took
the
Challenge
,
Pasch.
41
El.
B.
R.
2.
If
any
one
or
more
of
the
Jury
be
retorned
at
at
the
denomination
of
the
party
,
Plaintiff
or
Defendant
,
the
whole
Array
shall
be
quasht
.
3.
If
the
Plaintiff
or
Defendant
have
an
Action
of
Battery
or
Debt
against
the
Sheriff
,
or
if
the
Sheriff
have
parcel
of
the
Land
depending
on
the
same
Title
;
or
if
the
Sheriff
or
his
Bayliff
be
either
of
Counsel
or
Attorney
,
or
Servant
or
Gossip
of
either
party
;
all
the
Array
shall
be
quasht
.
A
Prayer
to
Elisors
in
Trials
at
Bar
may
be
at
Elisors
.
the
Suit
of
the
Defendant
or
Plaintiff
;
but
in
Nisi
prius
,
at
the
Prayer
of
the
Plaintiff
only
.
Consanguinity
or
Affinity
are
the
principal
Causes
;
but
it
s
no
Challenge
to
the
Array
,
if
all
the
Jurors
be
of
Affinity
.
Challenge
to
the
Array
for
Favour
,
That
the
Sheriff
is
Servant
to
the
Plaintiff
,
or
was
Arbitrator
for
a
party
:
That
the
Sheriff
purchased
part
of
the
Land
in
question
:
That
one
party
is
Tenant
or
Servant
to
the
Sheriff
.
Malice
between
the
Sheriff
and
one
of
the
parties
,
is
good
cause
of
Challenge
,
That
one
of
the
parties
has
brought
an
Action
of
Debt
against
the
Sheriff
,
&c.
but
not
that
the
Officer
has
Debt
against
the
party
;
for
he
may
demand
his
Debt
without
Malice
.
This
kind
of
Challenge
being
no
principal
Challenge
,
must
be
left
to
the
Conscience
and
discretion
of
the
Tryors
.
Challenge
to
the
Polls
,
i.
e.
to
the
particular
Challenge
to
the
Poll.
Jurors
;
and
these
are
of
four
sorts
:
1.
Peremptory
,
without
shewing
any
Cause
;
and
this
for
Treason
is
35.
Felony
20.
2.
Principal
Challenge
to
the
Polls
;
so
called
,
because
it
stands
of
it self
,
without
leaving
any
thing
to
the
Conscience
or
Discretion
of
the
Tryors
.
Now
this
is
such
Matter
as
proves
evident
Favour
or
Enmity
in
the
Juror
.
And
this
is
,
Propter
respectum
;
as
the
Nobility
may
be
challenged
,
or
he
may
challenge
himself
,
propter
defectum
,
as
Aliens
,
Villains
;
not
having
Freehold
sufficient
;
not
having
two
Hundredors
.
Propter
affectum
,
as
Jurors
of
Kin
or
Blood
to
either
party
;
that
he
has
formerly
Tried
the
Cause
;
Counsel
;
not
a
Commissioner
for
Examination
of
Witnesses
;
Fellow-Servant
;
for
Favour
;
propter
delictum
,
as
Outlaw'd
,
&c.
3.
Challenger
to
the
Poll
must
shew
Cause
presently
.
After
one
hath
taken
Challenge
to
the
Poll
,
he
cannot
challenge
the
Array
.
4.
If
the
Plaintiff
alledge
a
Cause
of
Challenge
against
the
Sheriff
,
the
Process
shall
be
directed
to
the
Coroners
;
and
if
any
Cause
against
all
the
Coroners
,
then
the
Court
shall
appoint
Elisors
.
Sometime
,
two
of
them
that
be
Elisors
.
Impannelled
.
When
any
Challenge
is
made
to
the
Poll●
,
two
Tryors
shall
be
appointed
by
the
Court.
Note
,
All
Challenges
must
be
taken
before
the
Jurors
are
sworn
.
No
Challenge
shall
be
admitted
against
the
Tryors
,
appointed
by
the
Court.
There
may
be
a
Challenge
to
the
Pannel
by
Exception
to
the
Sheriff
,
after
a
Tales
prayed
to
him
:
So
after
a
Venire
fac
'
prayed
to
him
,
tho'
the
cause
of
Challenge
were
before
the
Prayer
,
Hob.
p.
235.
Upon
a
Writ
of
Error
the
Record
was
certified
,
That
the
Challenge
was
to
the
Sheriff
for
Cousinage
,
and
after
a
Venire
fac
'
awarded
to
the
Coroners
,
upon
the
Diminution
it
may
not
be
Certified
,
That
the
Challenge
of
the
Cousinage
was
after
the
Retorn
of
the
Venire
fac
'
;
because
this
is
contrary
to
the
Record
before
certified
,
1
Roll.
Abr.
764.
Floyd
and
Bethell
.
That
the
Sheriff
was
quondam
Servant
to
the
Defendant
,
Earl
of
Rutland
,
is
no
principal
Challenge
,
its
past
and
executed
.
Aliter
,
had
it
been
so
at
the
time
.
To
say
,
That
between
the
Sheriff
or
Officer
that
retorns
the
Pannel
,
and
one
of
the
Defendants
,
there
was
an
Action
of
Trespass
then
depending
,
is
a
principal
Challenge
.
CHAP.
XIII
.
Of
the
Writ
of
Enquiry
of
Damages
,
and
the
Sheriffs
demeanor
therein
,
and
in
what
Cases
a
new
Writ
shall
be
granted
,
or
not
.
By
whom
to
be
executed
.
The
time
of
Executing
it
.
The
Form
of
the
Retorn
of
a
Writ
of
Enquiry
of
Damages
.
Vide
sub
tit
.
Waste
.
IF
upon
the
Executing
of
a
Writ
of
Enquiry
A
new
Writ
granted
.
of
Damages
the
Sheriff
refuseth
to
swear
and
examine
some
of
the
Witnesses
produced
on
either
part
,
and
yet
doth
execute
the
Writ
;
the
Court
will
grant
a
new
Writ
to
the
party
grieved
,
for
the
old
Writ
was
not
well
executed
,
Pract.
Reg.
348.
A
Writ
of
Enquiry
of
Damages
directed
to
the
Sheriff
,
cannot
be
executed
by
a
Bayliff
of
a
Liberty
,
Hob.
p.
83.
Writ
of
Enquiry
of
Damages
varies
in
the
Amended
.
retorn
of
the
Award
upon
the
Roll
,
which
was
amended
and
made
agreeable
to
the
Roll
,
Mo.
711.
n.
998.
As
to
time
of
Executing
it
.
If
a
Writ
of
Enquiry
of
Damages
be
Retornable
Octabis
Michaelis
,
the
Sheriff
may
take
the
Inquest
and
enquire
the
Damages
the
day
of
the
Retorn
,
and
after
he
Retorns
it
the
same
day
;
this
Writ
is
well
executed
,
Trin.
38
El.
B.
R.
Gawen
and
Ludlow
.
If
on
a
Writ
of
Enquiry
of
Damages
the
Inquest
be
Impannelled
the
Essoyn
Day
,
and
the
Jury
then
hear
their
Evidence
two
or
three
days
after
;
yet
this
is
well
executed
,
Mich.
11
Car.
1.
B.
R.
Stainby
and
Waterman
.
Retorn
of
a
Writ
of
Enquiry
of
Damages
.
Executio
istius
brevis
patet
in
quadam
inquisitione
huic
brevi
annex'
.
INquisitio
indentat'
capta
apud
C.
in
Com'
War'
(
tali
die
&
anno
)
coram
A.
B.
Armig
'
,
Vicecom'
ejusdem
Com'
,
Virtute
cajusdam
brevis
domini
Regis
,
eidem
Vic'
direct'
&
huic
inquisitioni
consut'
per
Sacrament'
R.
S.
F.
G.
&c.
(
ad
numorum
12
Jurors
)
qui
dicunt
super
Sacramentum
suum
quod
A.
P.
in
brevi
Inquisition'
huic
consut'
nominat'
sustinuit
damna
occasione
(
Trangress
.
praedict'
)
per
H.
in
praed'
brevi
nominat'
prout
in
eodem
brevi
fit
mentio
ad
40
s.
&
pro
mis'
&
custag'
ipsius
A.
P.
per
ipsum
circa
sectam
suam
in
hac
parte
appositis
ad
40
s.
In
cujus
rei
,
&c.
In
this
Writ
,
to
Enquire
of
Damages
in
Trespass
,
the
Jury
cannot
find
that
no
Trespass
is
done
.
Neither
may
the
Sheriff
make
such
a
Retorn
;
but
if
the
Jury
will
find
no
Damages
,
the
Sheriff
must
make
his
Retorn
accordingly
.
CAP.
XIV
.
Where
and
in
what
Cases
the
Sheriffs
Retorn
of
a
Devastavit
shall
be
good
or
not
,
and
the
late
practice
in
such
Cases
.
THe
Defendant
pleads
plene
administravit
,
and
Sheriff
concluded
to
make
any
retorn
,
contrary
to
the
Verdict
.
Verdict
is
for
the
Plaintiff
,
this
estops
the
Sheriff
of
the
County
where
the
Trial
was
to
Retorn
Nulla
bona
;
for
he
is
concluded
by
the
Verdict
to
make
any
Retorn
contrary
to
it
;
but
the
Sheriff
of
another
County
shall
not
be
so
concluded
.
But
the
Sheriff
of
the
County
where
the
Writ
is
brought
ought
to
Retorn
a
Devastavit
,
and
thereupon
the
Plaintiff
shall
have
Process
into
another
County
,
2
Leon.
n.
90.
p.
67.
Noon's
Case
,
1
Anders
.
32.
And
the
Question
further
was
,
If
a
Testatum
shall
issue
into
another
County
,
before
the
Sheriff
of
the
County
where
the
Writ
was
brought
had
retorned
a
Devastavit
,
and
not
Resolved
;
but
without
doubt
its
the
safer
way
to
do
it
upon
the
Retorn
.
The
principal
Case
was
;
Debt
in
London
against
an
Executor
,
upon
plene
administravit
it
was
found
for
the
Plaintiff
,
the
Plaintiff
assigned
the
same
to
the
Queen
,
and
a
Scire
fac
'
issued
out
of
the
Exchequer
against
the
Defendant
,
&c.
into
the
County
of
D.
and
the
Sheriff
retorned
Nulla
bona
,
&c.
which
was
not
good
,
causa
qua
supra
,
tho'
the
Debt
was
well
assigned
.
And
upon
a
Constat
of
Goods
in
another
County
,
he
may
well
have
a
Scire
fac
'
into
another
County
,
2
Leon.
n.
90.
Bendl.
23.
But
if
Executors
plead
plene
administravit
,
it
was
found
they
had
Assets
,
and
a
Fieri
fac
'
issued
to
the
Sheriff
,
who
Retorned
that
they
had
not
any
thing
within
the
County
.
Per
Cur
'
,
Its
a
good
Retorn
,
because
the
Jury
it
may
be
found
Assets
in
another
County
;
so
the
Verdict
shall
not
bind
the
Sheriff
,
2
Brownl
.
Rep.
p.
116.
Morgan
and
Took
.
If
it
appear
by
the
Defendants
Plea
that
he
hath
When
the
Sheriff
may
ret●rn
Devastauit
.
Assets
in
his
hands
,
and
if
the
Sheriff
cannot
levy
the
debt
in
the
Defendants
hands
,
he
may
upon
the
Defendants
own
shewing
(
without
any
damage
)
retorn
a
Devastavit
;
and
if
Judgment
be
given
against
an
Executor
on
Demurrer
,
and
Execution
awarded
,
the
Sheriff
cannot
Retorn
Nulla
habet
bona
Testatoris
.
But
it
is
a
Devastavit
if
it
be
found
against
the
Executor
by
Verdict
.
Cro.
Eliz.
102.
Stubs
and
Rightwise
.
Judgment
was
given
in
Banco
de
bonis
Testatoris
,
Special
Scire
fac
'
.
and
Fieri
fac
'
issues
out
;
the
Sheriff
Retorns
Nulla
bona
;
the
Plaintiff
may
have
a
Special
Fieri
fac
'
,
That
the
Sheriff
shall
levy
the
Debt
of
the
Goods
of
the
dead
,
and
si
sibi
constare
poterit
,
Fau●
Retorn
.
that
the
Executors
have
wasted
them
,
then
de
bonis
propriis
;
and
if
the
Sheriff
makes
a
False
Retorn
,
the
party
may
have
an
Action
on
the
Case
.
But
if
upon
the
Retorn
of
Nulla
bona
,
and
a
Quia
Testatum
est
,
that
they
have
wasted
,
a
Writ
of
Enquiry
is
awarded
what
Goods
were
wasted
,
and
it
s
found
that
Goods
ad
valentia●
of
the
Debt
were
wasted
,
and
upon
that
a
Scire
fac
'
to
have
Execution
de
bonis
propriis
upon
two
Nichils
retorned
;
This
is
Erroneous
,
and
if
the
Inquisition
be
false
,
the
party
hath
no
Remedy
,
and
upon
two
Nichils
retorned
the
Defendant
shall
be
condemned
;
yet
perhaps
he
had
not
Notice
,
5
Rep.
Pettyfer's
Case
.
To
that
purpose
is
a
Case
in
Littleton's
Reports
,
Judgment
was
given
against
the
Executor
,
and
Execution
awarded
;
and
the
Plaintiff
informs
the
Sheriff
,
that
the
Executors
have
wasted
the
Goods
of
the
Testator
;
but
the
Sheriff
would
not
retorn
a
Devastavit
.
Henden
Serjeant
moved
for
a
Commission
,
to
enquire
whether
the
Goods
were
wasted
;
and
if
it
be
found
,
then
the
Sheriff
might
retorn
a
Devastavit
without
peril
.
But
the
Judges
said
,
they
would
not
Advise
,
because
it
was
a
New
course
,
Lit.
Rep.
47.
But
in
Aldworth
and
Peel's
Case
it
was
Resolved
.
There
Debt
was
brought
against
Peel
as
Executor
,
the
Plaintiff
had
Judgment
to
recover
de
bonis
Testatoris
;
and
thereupon
a
Scire
Scire
fac'
de
bonis
propriis
shall
not
be
awarded
upon
the
surmize
of
the
party
,
but
on
the
Retorn
of
the
Sheriff
of
a
Devastavit
.
fac
'
was
awarded
,
and
the
Sheriff
retorneth
quod
nulla
habuit
bona
Testatoris
;
and
the
Plaintiff
surmizeth
,
that
he
had
wasted
the
Testator's
Goods
;
whereupon
he
prayed
a
Scire
fac
'
,
why
he
should
not
have
Execution
de
bonis
propriis
.
And
per
Cur'
,
this
Writ
shall
not
be
awarded
upon
the
surmize
of
the
party
of
a
Devastation
,
nor
in
any
case
where
the
Judgment
is
de
bonis
propriis
;
unless
it
be
on
Retorn
of
the
Sheriff
,
where
he
retorns
a
Devastavit
,
Cro.
El.
530.
Aldworth
and
Peele
.
If
A.
recover
against
B.
Debt
and
Damages
,
and
after
B.
died
,
and
Administration
is
granted
to
C.
his
Wife
,
who
wastes
the
Goods
,
and
after
takes
D.
to
Husband
,
and
a
Fieri
fac
'
is
awarded
de
bonis
Testatoris
in
the
hands
of
D.
and
C.
and
the
Sheriff
Retorns
Nulla
bona
,
&c.
and
upon
this
,
on
surmize
that
they
have
wasted
the
Goods
,
another
Writ
was
awarded
to
the
Sheriff
,
Si
sibi
constare
poterit
per
Inquisition
'
,
that
they
have
wasted
the
Goods
,
then
to
warn
them
to
shew
cause
why
Execution
should
not
be
de
bonis
propriis
,
and
so
an
Inquisition
is
taken
.
And
the
Sheriff
Retorned
,
That
they
had
not
in
their
hands
any
of
the
Goods
of
the
Intestate
;
but
that
the
Feme
being
Administratrix
of
her
first
Husband
,
had
Goods
of
the
value
of
100
l.
of
the
said
Intestates
,
and
had
wasted
them
during
her
Widowhood
,
and
the
Husband
had
not
wasted
any
of
them
.
Et
si
devasterunt
according
to
the
Writ
,
the
Jury
pray
the
Discretion
of
the
Court
.
Per
Cur
'
.
This
Special
Retorn
of
the
Sheriff
is
good
,
and
by
this
the
Husband
is
☜
to
be
charged
for
the
Conversion
of
the
Wife
.
Cro.
Car.
603.
King
and
Hilton
.
The
Sheriff
Retorns
a
Devastavit
(
no
Assets
over
being
in
Question
)
on
Non
est
factum
against
an
Administrator
by
Fieri
fac
'
,
with
a
Scire
fac'
.
Per
Cur
'
,
Tho'
it
be
a
False
Retorn
we
cannot
Faux
Retorn
.
help
it
,
but
it
s
at
the
Sheriffs
peril
,
3
Keb.
530.
Brown
and
Collins
.
On
Fieri
fac
'
,
with
a
Scire
fac
'
and
Assets
,
the
Sheriff
returned
Waste
,
and
the
Defendant
pleaded
plene
administravit
.
The
Plaintiff
demurred
,
because
the
point
of
the
Inquisition
is
not
traversed
,
and
Judgment
pro
Querente
.
Debt
against
an
Executor
,
and
a
Recovery
by
Verdict
,
and
Judgment
upon
this
,
and
a
Fieri
fac'
de
bonis
of
the
Intestate
;
upon
which
a
Devastavit
was
retorned
,
an
Elegit
issues
de
bonis
propriis
,
Mo.
299.
n.
446.
Mead
and
Cheney
.
If
A.
recover
against
B.
and
Execution
de
bonis
The
party
may
discharge
himself
of
a
Devastavit
by
Plea
,
That
the
Sheriff
levied
the
Money
on
the
first
Fieri
fac
'
.
Testatoris
,
si
non
,
de
bonis
propriis
,
and
the
Sheriff
upon
a
Fieri
fac
'
levies
the
Moneys
,
and
after
to
another
Fieri
fac
'
to
him
directed
,
Retorns
a
Devastavit
;
and
upon
this
a
Scire
fac
'
is
granted
against
B.
to
shew
cause
,
&c.
B.
may
discharge
himself
of
this
Devastavit
by
Plea
,
that
the
Sheriff
levied
the
Money
upon
the
first
Fieri
fac.
1
Roll.
Abr.
903.
Middleton
and
Powell
.
President
,
Retorn
of
a
Fieri
fac
'
upon
a
Devastavit
,
Dyer
222.
But
now
the
Practice
is
more
nimble
than
by
the
tedious
Inquisitions
,
and
that
is
,
by
bringing
Action
in
the
Debet
and
Detinet
against
an
Executor
,
suggesting
a
Devastavit
in
his
Declaration
,
without
any
Retorn
of
the
Sheriff
,
Siderfin
397.
Wheatby
and
Law
.
On
a
Fieri
fac'
in
a
Scire
fac'
to
have
Execution
de
bonis
propriis
.
Sheriff
Retorns
upon
Inquisition
,
That
the
Defendant
(
Administrator
)
habuit
bona
&
catalla
Plea
to
Scire
fac'
de
Devastavit
.
in
manibus
suis
quae
fuerunt
del
intestate
tempore
mortis
suae
ad
valentiam
debiti
&
damnorum
recovered
by
the
Original
Judgment
;
and
that
the
Defendant
bona
&
catalla
illa
ad
valenc'
debiti
&
damnorum
praedict'
vendidit
&
elongavit
ac
in
usum
suum
proprium
convertit
&
disposuit
.
Defendant
at
the
Retorn
of
the
Writ
comes
in
,
&
protestando
that
he
had
fully
Administred
,
for
Plea
he
saith
,
non
vendidit
seu
elongavit
,
&c.
Et
hoc
,
&c.
Plaintiff
replies
,
That
the
Defendant
vendidit
&
elongavit
,
&c.
and
found
for
the
Plaintiff
.
Per
Cur'
,
Tho'
this
is
no
apparent
Issue
(
but
whether
devastavit
vel
non
)
for
the
Defendant
might
pay
Debts
with
his
proper
Moneys
,
and
that
he
might
dispose
of
the
Goods
to
his
own
use
;
yet
it
s
good
after
Verdict
.
For
the
Writ
of
Scire
fac
'
suggests
,
That
the
Defendant
bona
&
catalla
,
&c.
disposuit
ea
intentione
qd'
dict
a
executio
fieret
,
1
Sand.
306.
Merchant
&
Driver
.
And
it
is
the
Defendant's
own
fault
to
take
such
an
Issue
;
for
he
might
have
taken
Issue
,
that
he
had
not
Goods
of
that
value
,
or
that
he
had
paid
any
special
Debt
.
CHAP.
XV.
Of
Prisons
,
to
whom
they
belong
,
and
the
place
where
kept
.
Who
may
be
keeper
of
Gaols
,
&c.
and
how
forfeitable
.
Of
the
Sheriffs
of
Londons
Prison
,
and
of
the
Marshalsea
,
and
the
Grant
thereof
.
Of
the
Sheriffs
detneanor
towards
Prisoners
.
Of
the
Prisoners
Misbehaviour
,
and
what
payment
of
a
Debt
to
a
Gaoler
shall
be
good
,
or
not
.
And
of
those
that
break
Prison
.
Of
Prisons
,
&c.
ALL
Prisons
are
the
Kings
;
but
a
Subject
may
be
Keeper
,
Co.
2
Inst.
100
,
580.
The
custody
of
County
Gaols
is
incident
to
County
Gaol
inseparable
to
the
Office
of
Sheriff
.
the
Office
of
Sheriff
,
and
inseparable
from
the
Sheriff
;
and
therefore
if
the
King
grant
the
Custody
of
such
a
Gaol
to
another
,
its
void
:
For
the
Sheriff
is
the
immediate
Officer
of
the
Kings
Courts
,
and
shall
be
answerable
for
Escapes
,
and
be
subject
to
Amerciaments
,
and
therefore
he
shall
put
in
such
Keepers
as
he
shall
answer
for
,
4
Rep.
34.
Mitton's
Case
,
14
Ed.
3.
c.
10.
The
Sheriff
may
remove
his
Gaol
from
one
The
place
where
to
be
kept
.
place
to
another
within
his
Bailywick
.
And
the
Sheriff
may
hold
the
Assizes
in
the
Castle
where
he
held
them
there
by
Prescription
,
altho'
the
King
grant
the
Custody
of
the
Castle
to
another
.
So
that
tho'
the
Sheriff
may
keep
the
Gaol
in
what
place
he
will
within
his
Bailywick
,
yet
in
a
particular
place
not
without
Prescription
,
Heb.
p.
202.
1
Anders
.
345.
Infants
or
Feme
Coverts
are
keepers
of
Gaols
,
to
charge
them
in
Execution
for
an
Escape
,
2
Inst.
382.
As
the
King
may
by
his
Letters
Patents
make
a
County
,
so
he
may
in
the
making
of
it
,
save
and
except
to
him
and
his
Successors
such
part
of
the
Jurisdiction
or
Priviledge
,
which
the
other
County
(
from
which
it
is
exempted
)
had
in
it
before
.
As
in
many
places
in
the
Realm
,
the
Gaol
of
a
Town
,
which
is
a
County
of
it self
,
or
a
place
priviledged
from
the
County
,
is
the
Gaol
of
the
County
,
and
the
place
where
the
Assizes
or
Gaol-delivery
is
holden
,
is
within
the
County
of
the
Town
,
and
yet
serves
also
for
the
County
at
large
:
As
in
the
Sessions-Hall
at
Newgate
,
which
serves
as
well
for
the
County
of
Middlesex
,
as
for
London
,
and
yet
it
stands
in
London
;
but
by
Usage
it
hath
been
so
.
And
so
the
Gaol
of
Berry
,
&c.
Poph.
p.
16.
The
Case
of
the
Town
of
Gloucester
.
The
Sheriffs
of
London's
Court
is
moveable
,
Prison
of
the
Sheriffs
of
London
.
and
the
Sheriff
is
chargable
with
a
Prisoner
while
he
is
in
Prison
,
tho'
he
be
Judge
also
.
For
why
should
the
City
Serjeants
give
Security
to
the
Sheriff
,
unless
the
Sheriff
be
the
Officer
?
And
it
hath
been
Ruled
,
That
altho'
the
Sheriff
be
Judge
,
yet
a
Precept
is
directed
to
him
.
Therefore
it
s
a
good
Plea
in
Debt
on
Escape
,
That
the
Sheriff
Commanded
the
Serjeant
at
Mace
to
deliver
the
Prisoner
to
him
,
Siderfin
p.
318.
2
Keb.
141.
Husband
and
Cole
.
Note
,
The
Sheriffs
of
London
may
make
their
Houses
their
Prisons
,
as
well
as
the
Compters
:
And
the
bringing
the
person
arrested
to
the
Sheriff
,
albeit
it
be
sub
dio
,
and
not
into
any
House
;
yet
it
s
as
good
as
delivering
into
the
Sheriffs
Prison
.
Vid.
infra
.
Note
,
Upon
Forfeiture
the
Custody
of
a
Prison
is
given
to
another
,
and
yet
till
he
is
actually
removed
he
shall
answer
for
all
Escapes
,
and
he
that
occupies
the
Gaol
by
Tort
shall
answer
;
and
actual
Escape
lies
against
him
who
had
possession
at
Will
,
11
H.
7.
23.
Dyer
274.
But
if
he
be
not
sufficient
,
Respondeat
superior
.
9
Rep.
Reynold's
Case
.
Vide
supra
.
Grant
by
Patent
of
the
Office
of
the
Marshalsea
Marshalsea
.
of
the
Kings-Bench
for
years
is
not
good
,
for
the
Inconveniences
that
might
ensue
;
it
may
thereby
become
in
suspence
upon
probat
of
a
Will
,
till
Administration
committed
thereof
;
and
it
might
fall
to
persons
Insufficient
;
and
in
case
of
Fee
or
Tail
it
descends
to
an
Infant
,
the
Court
puts
a
fit
person
in
for
the
time
,
Cro.
Car.
587.
Meade
versus
Sir
J.
Lenthall
.
Vid.
more
of
the
Marshalsea
,
9
Rep.
Sir
G.
Reynold's
Case
,
10
Rep.
Case
of
the
Marshalsea
.
Marshal
of
the
Kings
Bench
shall
not
be
priviledged
from
Execution
.
But
if
the
Court
do
grant
him
in
Execution
it
s
an
Escape
as
to
all
the
Prisoners
;
but
they
may
make
a
new
Marshal
,
and
then
take
him
in
Execution
,
Siderfin
p.
68.
By
Hyde
,
Chief
Justice
of
B.
R.
The
Court
Informat'
versus
le
Marshal
.
cannot
sequester
the
Marshal's
Office
,
for
not
paying
a
Debt
due
to
any
private
man
.
But
by
Windham
,
an
Information
may
be
against
the
Officer
for
this
ill
using
his
Office
to
shift
mens
Debts
,
and
on
that
the
Court
may
sequester
.
So
on
any
Contempt
by
him
,
1
Keb.
846.
Roberts
versus
Sir
J.
Lenthall
.
Attorney
of
B.
R.
brought
Trespass
against
the
Warden
of
the
Fleet.
Warden
of
the
Fleet
,
who
advised
with
the
Court
of
C.
B.
that
he
being
an
Officer
of
this
Court
,
ought
not
to
be
impleaded
elsewhere
.
Per
Cur'
,
Its
equality
of
Liberty
,
and
he
that
first
begins
the
Suit
shall
have
the
priviledge
;
and
so
he
was
advised
to
Answer
,
2
Leon.
p.
41.
Povey's
Case
.
G.
brought
Action
of
Debt
against
the
Warden
by
a
Bill
of
Priviledge
,
but
he
would
not
appear
;
and
the
Court
were
in
doubt
,
what
remedy
the
Plaintiff
hath
to
compel
the
Defendant
to
appear
.
For
he
cannot
be
fore-judged
the
Court
,
because
he
had
Estate
of
Inheritance
in
the
said
Office
:
But
the
Warden
having
made
a
Lease
of
his
Office
for
three
years
,
he
shall
not
have
his
Liberty
,
2
Leonard
173.
Gittonson's
Case
.
As
for
Gaols
which
have
been
granted
in
Fee
,
or
Life
,
or
which
have
been
held
by
Prescription
,
may
be
forfeited
several
ways
.
Where
the
Gaoler
detains
a
Prisoner
after
Fees
paid
,
the
King
may
seise
the
Gaol
,
2
Inst.
43
,
53.
Of
the
Sheriffs
Demeanor
towards
Prisoners
.
Britton
c.
11.
saith
,
No
Prisoner
shall
be
put
in
Irons
,
but
Traytors
,
or
those
taken
for
Felony
or
Trespass
in
parcis
&
vivariis
,
or
which
shall
be
found
in
Arrears
in
Account
before
they
be
attainted
.
Vide
1
Ed.
3.
c.
7.
My
Lord
Coke
,
in
his
3
Inst.
35.
extreamly
inveighs
against
Racks
.
It
is
true
,
the
punishment
is
amazing
;
but
as
the
sins
of
every
Age
grow
more
impudent
,
so
their
penalties
ought
to
be
more
severe
:
And
if
we
will
translate
our
Neighbouring
Nations
Villanies
,
we
ought
to
imitate
their
punishments
;
especially
for
Offences
publick
,
and
which
go
to
the
ruin
of
a
Nation
.
I
will
put
a
common
Instance
.
At
this
present
our
current
Trade
is
almost
spoiled
by
our
Noncurrent
Money
,
and
he
that
shall
break
open
a
Bakers
Window
to
take
a
Sixpeny
Loaf
to
supply
meer
Nature
,
shall
be
as
severely
treated
,
as
'
he
that
Clips
and
Counterfeits
the
Coyn
;
I
mean
,
a
little
dry
Hanging
serves
for
both
;
for
as
to
the
Sledge
,
its
insignificant
.
And
we
shall
conclude
,
It
will
never
be
otherwise
unless
the
Breaking
on
the
Wheel
and
dying
by
piece-meal
,
sometimes
used
in
other
Countries
,
may
terrifie
Spectators
,
and
those
to
whom
it
is
Reported
;
ut
poena
ad
paucos
,
&c.
Tho'
there
is
no
person
that
has
a
greater
Veneration
for
our
Common
Law
than
my self
;
yet
I
conceive
I
may
say
,
the
spreading
and
new
Villanies
of
our
Nation
are
chiefly
owing
to
our
undistinguishing
punishments
.
He
that
takes
but
Half
a
Crown
on
the
Pad
shall
be
hanged
,
and
deservedly
;
and
he
that
Blasphemes
his
God
,
Murders
his
Father
,
and
commits
a
Rape
upon
his
Mother
,
shall
e'en
make
his
Exit
with
a
few
wry
wet
Looks
,
and
a
little
Swing
or
two
:
Which
punishment
I
must
needs
observe
is
almost
grown
into
Contempt
by
the
major
part
of
Criminals
.
I
need
but
mention
the
notorious
Case
of
Felton
;
and
the
late
Story
of
the
barbarous
Midwife
.
By
our
Law
it
is
plain
,
A
Prisoner
in
Execution
shall
not
be
in
Fetters
,
but
for
Criminal
Causes
.
But
to
return
to
my
purpose
:
A
Prisoner
(
while
he
is
such
)
is
under
protection
of
the
Law
,
and
accordingly
is
to
be
used
.
And
therefore
where
a
Prisoner
,
by
duress
of
the
Gaoler
,
comes
to
an
Untimely
End
,
it
is
Murder
in
the
Gaoler
,
3
Inst.
52
,
91.
And
the
Law
implies
Malice
in
him
in
respect
of
the
Cruelty
.
And
therefore
if
a
man
dye
in
Prison
,
the
Coroner
ought
to
sit
upon
him
,
to
the
end
it
may
be
enquired
,
if
he
came
to
his
death
by
the
duress
of
the
Gaoler
,
or
otherwise
,
3
Inst.
91.
52.
If
the
Sheriff
,
or
other
Officer
,
where
he
ought
to
Hang
the
party
attainted
,
according
to
his
Judgment
and
his
Charge
,
will
(
against
the
Law
)
of
his
own
wrong
,
Burn
or
Behead
him
,
&c.
the
Law
in
this
case
implies
Malice
in
him
.
By
the
Statute
of
14
Ed.
3.
c.
10.
If
a
Keeper
,
or
Under-Keeper
of
Prisons
,
by
too
great
duress
of
Imprisonment
,
or
by
Pain
,
make
a
Prisoner
become
an
Appellor
,
(
viz.
)
an
Approver
against
his
Will
,
its
Felony
.
Every
Imprisonment
is
in
Law
duritia
,
duress
;
a
little
addition
to
it
by
the
Gaoler
,
is
too
great
duress
in
this
case
.
There
is
a
remarkable
Case
in
3
Bulstrode
.
The
Court
was
moved
by
Sir
G.
Reynell
against
one
of
his
Prisoners
,
who
had
much
misbehaved
himself
,
offered
to
Escape
,
and
had
endangered
the
killing
of
one
of
his
Servants
,
and
that
he
had
spent
Ten
pounds
after
him
;
and
he
would
have
had
the
Court
to
have
fined
him
.
But
per
Cur'
,
We
will
not
do
it
;
you
must
keep
him
in
arcta
custodia
in
Irons
,
and
you
may
Indict
him
for
these
Misdemeanors
,
and
by
that
way
you
may
have
him
Fined
,
3
Bulstr.
245.
Sir
G.
Reynell's
Case
.
The
payment
of
a
Debt
by
a
Prisoner
to
a
Payment
of
the
Debt
to
●
Gaoler
.
Gaoler
is
not
good
;
and
therefore
in
Debt
the
Defendant
pleads
,
That
he
was
a
year
in
Execution
and
the
Plaintiff
could
not
be
found
,
whereupon
he
paid
the
Money
to
the
Gaoler
.
The
Plaintiff
replies
,
That
he
was
to
be
found
at
D.
absque
hoc
,
that
he
absented
eo
animo
,
to
keep
the
Defendant
in
Prison
.
And
the
Defendant
to
this
Demurs
,
because
the
Marshal
may
dye
,
and
no
Recovery
can
be
by
the
Defendant
against
the
Marshal
,
if
he
do
not
pay
it
over
.
But
the
Court
gave
Judgment
for
the
Plaintiff
;
it
being
not
reasonable
to
pay
Money
to
the
Gaoler
for
the
Plaintiff
,
whether
he
will
or
not
.
And
also
,
they
thought
it
too
hard
for
the
Plaintiff
to
prove
payment
,
or
to
prove
Assets
in
the
hands
of
the
Marshall's
Executors
,
3
Keb.
748.
Taylor
and
Baker
,
Sir
Tho.
Jones's
Rep.
mesme
Case
.
Where
the
Imprisonment
is
unlawful
the
Prisoner
is
not
to
pay
for
his
Diet
,
1
Roll.
Rep.
329.
Oliver's
Case
.
Note
,
If
a
Prisoner
is
in
Execution
,
and
the
Gaoler
or
Sheriff
dye
,
he
is
in
abeyance
and
custody
of
the
Law
,
3
Rep.
Westby's
Case
.
A
Gaoler
is
not
bound
to
deliver
his
Prisoner
,
who
is
Discharged
by
the
Court
,
until
he
pays
his
due
Fees
.
A
Prisoner
acquitted
of
Felony
,
the
Gaoler
may
take
Twenty
pence
,
which
is
called
a
Bar
Fee
.
Every
Sheriff
Bayliff
of
Franchise
,
and
every
other
person
having
Authority
of
keeping
Gaols
,
or
of
Prisoners
for
Felony
,
shall
certifie
the
Names
of
every
such
Prisoner
in
their
keeping
at
the
next
General
Gaol-delivery
in
every
County
or
Franchise
where
such
Gaol
is
,
there
to
be
Kalendred
before
the
Justices
of
the
Delivery
of
the
same
Gaol
,
whereby
they
may
,
as
well
for
the
King
as
the
party
,
proceed
to
make
delivery
of
such
Prisoners
,
according
to
the
Law
,
on
pain
of
Five
pounds
,
3
H.
7.
3.
If
the
Gaoler
shall
suffer
an
Escape
,
the
High
Sheriff
or
Gaoler
are
chargeable
therefore
.
CHAP.
XVI
.
When
one
may
be
said
to
be
in
Execution
or
not
.
And
when
without
Prayer
or
not
.
In
what
Cases
the
Sheriff
may
break
open
an
House
to
do
Execution
or
not
.
To
what
Sheriff
,
and
of
what
place
and
County
shall
Execution
be
Awarded
.
Of
a
Cap.
ad
satisfaciend
'
for
what
and
against
whom
it
lies
,
and
the
Sheriffs
Demeanor
therein
,
and
Retorns
thereupon
.
Of
Execution
.
When
one
may
be
said
to
be
in
Execution
or
not
.
When
one
shall
be
in
Execution
without
Prayer
of
the
Plaintiff
or
not
.
IF
a
Man
recover
Damages
in
Action
on
the
Case
against
J.
S.
in
the
Kings
Bench
,
the
said
J.
S.
being
in
Custod
'
Mareschal
'
;
yet
he
shall
not
be
in
Execution
on
this
Judgment
,
altho'
it
be
within
the
year
,
before
Prayer
of
the
Plaintiff
;
for
the
Marshal
may
not
take
notice
of
every
Where
a
Man
Comittitur
.
Judgment
against
every
Prisoner
;
but
upon
Prayer
of
the
Plaintiff
,
a
Comittitur
shall
be
entered
upon
the
Roll
,
and
then
he
is
in
Execucution
;
but
if
the
Defendant
being
taken
in
Execution
,
be
brought
on
by
Habeas
Corpus
,
and
then
an
Entry
of
the
Com●●●tur
is
made
in
the
Book
of
the
Office
,
its
Go●●
Hill.
12
Jac.
B.
R.
Sir
Henry
Bellows
and
Hanford
.
2
Rolls
Rep.
112.
If
a
Man
recover
in
B.
C.
Debt
and
Damages
against
J.
S.
and
had
Judgment
,
altho'
that
J.
S.
be
a
Prisoner
in
the
Fleet
for
other
Causes
,
(
which
is
the
Prison
of
the
Common
Bench
)
and
the
Warden
informs
the
Court
of
it
,
and
the
Court
commands
him
to
retain
him
,
in
Execution
until
satisfaction
of
the
Judgment
;
yet
he
is
not
in
Execution
,
because
he
was
not
brought
to
the
Bar
by
Habeas
Corpus
,
and
viewed
and
demanded
of
the
Prisoner
,
if
he
be
the
same
person
,
who
is
Condemned
or
not
;
and
it
is
the
Office
of
the
Court
to
oppose
him
,
Dier
13
,
14
El.
p.
306.
pl.
63.
So
if
the
Warden
inform
the
At
the
Prayer
of
the
Party
or
not
.
the
Court
of
Chancery
,
that
J.
S.
(
which
is
Prisoner
there
on
a
Judgment
)
is
in
his
Ward
for
certain
Causes
,
on
which
the
Court
commands
the
Warden
to
Retorn
him
in
Execution
,
until
satisfaction
of
the
Judgment
;
yet
J.
S.
is
not
in
Execution
upon
the
Judgment
,
because
this
was
not
done
at
the
request
of
the
Plaintiff
,
but
without
his
Prayer
,
for
it
may
be
he
will
Elect
another
Execution
,
Dier
306
,
63.
In
Debt
against
J.
S.
if
the
Defendant
be
taken
upon
a
Latitat
,
and
committed
to
the
Marshal
for
default
of
Bail
,
and
after
the
Plaintiff
recovers
against
him
he
continuing
in
Prison
;
yet
he
shall
not
be
in
Execution
for
this
Judgment
,
before
the
Prayer
of
the
Plaintiff
,
M.
4
Jac.
B.
R.
Car.
and
Copping
.
If
a
Man
recover
in
Debt
and
Outlaw
.
The
On
Cap.
Utlegat
.
Defendant
after
Judgment
,
and
after
within
the
year
the
Defendant
is
taken
by
Cap'
Uslagatum
,
he
shall
be
in
Execution
for
the
Plaintiff
before
Prayer
,
because
the
Outlawry
was
at
the
Suit
of
the
Party
,
5
Rep.
88.
Garnons
Case
,
H.
41.
El.
B.
R.
Bonner
and
Stackley
.
Otherwise
it
is
,
if
he
be
taken
in
Execution
after
the
year
,
because
in
that
Case
he
may
not
have
any
Capias
against
him
,
Hill.
38.
El.
B.
R.
Norton
and
Sharp
.
But
if
a
Man
Outlaw
the
Defendant
in
Debt
after
Judgment
,
and
after
within
the
year
,
the
Defendant
is
taken
by
Cap'
Utlagatum
,
altho'
he
be
in
Execution
for
the
Plaintiff
prima
facie
;
yet
he
may
make
Election
,
that
it
shall
not
be
an
Execution
for
him
,
44
El.
B.
R.
Shaw
and
Cutter
.
If
Execution
by
default
be
Awarded
in
a
Scire
fac
'
Scire
fac
'
upon
a
Judgment
in
Debt
,
and
the
Defendant
four
years
after
was
in
the
Fleet
for
other
Cause
;
and
by
Habeas
Corpus
he
was
brought
up
to
the
Common
Bench
,
and
being
opposed
by
the
Court
,
if
he
were
the
person
who
was
condemned
,
ut
supra
,
and
he
grants
it
,
he
Tho'
after
the
year
and
day
.
shall
be
committed
in
Execution
,
at
the
Prayer
of
the
Plaintiff
as
it
seems
,
tho'
it
be
after
the
year
and
day
,
Dier
214
,
147.
If
A.
recover
against
B.
by
Judgment
in
the
Kings
Bench
,
and
upon
this
B.
renders
himself
to
Prison
,
and
after
brought
a
Writ
of
Error
and
had
a
Supersedeas
;
yet
after
upon
Prayer
of
the
Plaintiff
,
the
Court
may
commit
him
in
Execution
,
Writ
of
Error
,
Bail
.
altho'
that
the
Record
be
removed
;
forasmuch
as
he
had
not
found
Bail
upon
his
Writ
of
Error
,
p.
9.
Car.
1.
B.
R.
Symonds
Case
.
How
and
in
what
Cases
the
Sheriff
may
break
open
an
House
to
do
Execution
.
The
Leading
Case
in
this
Point
is
Semaines
Case
,
reported
by
my
Lord
Coke
,
in
5
Rep.
and
in
Crokes
Eliz.
98.
out
of
which
I
shall
Collect
these
●ollowing
Resolutions
.
The
Case
was
,
A
Joynt
Termor
of
an
House
with
B.
dies
,
being
bound
in
a
Statute
.
The
Sheriff
Retorns
him
dead
,
Conusee
Sues
another
Writ
to
extend
his
Lands
,
which
he
had
at
the
time
of
his
death
or
after
,
and
what
Goods
he
had
at
the
time
of
his
death
:
The
Sheriff
Impanels
a
Jury
to
enquire
what
Goods
,
&c.
and
it
was
found
there
were
divers
Goods
of
the
said
deceased
at
the
House
of
B.
in
London
:
And
the
Sheriff
came
with
the
Jury
to
view
Appraise
,
and
seise
them
for
this
Debt
,
and
the
(
Defendant
)
Surviving
Termor
,
premissorum
non
ignarus
shut
the
Door
,
and
disturbed
him
to
make
Execution
.
It
was
resolved
,
First
,
Upon
Recovery
the
Sheriff
may
break
On
habere
fac'
possessionem
.
open
an
House
,
and
deliver
it
to
the
Plaintiff
;
for
the
Writ
saith
,
habere
fac'
seisinam
,
or
possessionem
.
And
after
Judgment
it
is
not
the
House
of
the
Defendant
in
Right
.
Secondly
,
upon
a
Capias
ad
satisfaciend
'
,
the
Defendant
may
not
break
open
any
Mans
House
to
make
Execution
;
but
in
all
cases
,
when
the
Door
is
open
the
Sheriff
may
Enter
to
make
Execution
of
Body
or
Goods
.
Thirdly
,
In
all
Cases
where
the
King
is
Party
,
so
on
Hue
and
Cry
,
if
no
Door
be
open
,
the
Sheriff
may
break
open
the
House
to
take
him
,
or
to
do
Execution
or
other
Process
;
as
upon
a
Cap'
Utlagat
'
,
or
upon
Contempt
:
But
he
ought
first
to
signifie
the
Cause
of
his
coming
,
and
request
the
Owner
to
open
the
Door
,
but
not
to
break
open
any
Mans
House
by
night
.
Fourthly
,
Upon
a
Fieri
fac
'
,
or
Extendi
fac
'
,
the
Sheriff
may
not
enter
into
the
House
of
any
,
the
Door
being
shut
,
nor
draw
a
Latch
no
not
after
request
and
denyal
;
yet
tho'
the
Sheriff
be
a
Trespassor
in
breaking
open
the
House
by
Fieri
fac
'
,
yet
the
Execution
is
Good
.
Fifthly
,
The
House
of
any
one
is
not
priviledged
but
for
himself
and
his
Family
,
and
his
own
proper
Goods
,
not
to
protect
any
who
flie
there
,
or
the
Goods
of
another
conveyed
there
;
and
in
such
case
after
request
,
the
Sheriff
may
break
open
the
Door
;
but
in
the
principal
Case
he
did
not
request
it
,
and
so
the
shutting
the
Door
by
the
Defendant
was
lawful
,
and
no
Action
lies
against
him
.
And
as
for
the
Allegation
of
(
premissorum
non
ignarus
)
it
is
too
general
,
and
Notice
ought
to
be
specially
alledged
,
that
he
Notice
.
was
Sheriff
and
what
he
came
to
do
;
and
the
Defendant
being
a
Stranger
to
the
Execution
,
he
is
not
bound
to
take
notice
of
the
Sheriffs
intent
.
Upon
a
Fieri
fac
'
,
a
Barn
which
stands
in
the
Field
may
be
broken
by
the
Sheriff
,
because
it
is
not
part
of
the
Dwelling-house
,
and
there
needs
no
request
,
aliter
had
the
Barn
been
adjoyning
and
parcel
of
the
House
,
Siderfin
186
,
187.
Pentons
Case
,
1
Bulst.
146.
Foster
and
Hole
.
But
tho'
a
Sheriff
cannot
break
open
a
House
,
being
to
take
Execution
by
Fieri
fac
'
,
yet
when
the
Door
is
open
that
he
enters
,
then
he
may
and
ought
to
break
open
the
Door
of
an
Entry
or
Chamber
which
is
locked
,
or
break
open
any
Chest
which
is
locked
and
take
the
Goods
,
and
if
he
do
not
,
an
Action
of
the
Case
lies
against
him
,
1
Browl.
Rep.
50.
Diversity
was
taken
in
White
and
Wiltshires
case
,
where
the
Execution
is
lawfully
begun
,
there
the
Sheriff
or
his
Officers
may
break
the
House
to
mak
Execution
,
otherwise
,
when
it
is
not
lawfully
begun
.
If
one
be
Arrested
by
the
Sheriff
and
he
escapeth
to
his
own
House
,
and
the
Sheriff
persues
him
and
breaks
open
the
Doors
of
his
House
,
and
takes
him
again
,
the
party
shall
never
take
benefit
of
this
his
own
wrongful
escape
.
Two
of
the
under
Sheriffs
Bayliffs
entred
into
the
House
,
the
Door
being
open
,
to
take
Execution
of
the
Goods
,
and
the
Plaintiff
shuts
the
Door
upon
the
Bayliffs
,
and
imprisoned
them
for
two
hours
;
the
Sheriff
may
break
open
the
House
to
Rescue
his
Bayliffs
.
Cro.
Jac.
555.
White
and
Wiltshire
.
Note
,
the
Sheriff
was
fined
for
breaking
open
an
House
,
and
rushing
in
with
Sword
drawn
,
the
Door
being
half
open
,
on
private
Process
.
By
the
Stat.
W.
1.
c.
15.
the
Sheriff
may
break
open
an
House
or
Castle
to
make
Replevin
when
the
Goods
of
another
are
Conveyed
there
.
5
Rep.
Semain's
Case
.
If
a
Bankrupt
convey
his
Goods
to
his
Neighbours
House
,
the
Serjeant
Commissioners
may
not
,
but
the
Sheriff
may
break
open
the
House
,
because
he
is
a
sworn
Officer
of
the
Kings
Goodwins
Law
against
Bankrupts
65.
Quer.
Upon
a
Commission
of
Rebellion
out
of
Chancery
,
the
Sheriff
may
break
open
the
House
to
apprehend
the
party
therein
,
whether
in
his
own
or
anothers
House
.
Cromp.
fo.
47.
The
Sheriff
may
take
the
posse
Comitat.
to
do
Execution
Per
Stat.
W.
2.
c.
39.
and
he
may
take
it
post
vel
ante
querimoniam
,
but
he
may
take
it
after
resistance
,
and
not
before
;
for
sequi
debet
potentia
justitiam
non
praecedere
.
Co.
2
Inst.
p.
454.
But
suppose
the
Sheriff
cannot
do
Execution
Posse
Comitat
.
by
the
posse
Comitatus
,
then
saith
the
Book
1
Keb.
99.
117.
he
ought
to
acquaint
the
Deputy
Lieutenants
of
the
County
,
and
if
they
assist
not
,
he
must
acquaint
the
King
and
Council
,
and
yet
the
Sheriff
shall
not
be
amerced
,
if
he
return
he
cannot
do
Execution
;
but
in
Godbolt
.
79.
upon
a
resistance
of
Execution
,
the
Council
Table
refused
to
meddle
in
it
,
because
the
Court
of
Kings-Bench
ought
to
see
their
own
Judgment
executed
:
and
a
Writ
was
prayed
to
the
high
Sheriff
with
a
special
Rule
,
that
the
high
Sheriff
should
execute
it
himself
,
which
the
Court
granted
,
and
a
Tipstaff
to
fetch
the
under
Sheriff
up
to
return
his
Writ
,
which
is
better
than
an
Attachment
which
is
returnable
by
it self
.
1
Kel
,
99.
117.
Godbolt
79.
Bush
and
Chamberlaine
.
To
what
Sheriff
,
of
what
place
or
County
shall
Execution
be
awarded
.
If
Recognizance
of
Bayl
be
taken
by
a
Judge
of
the
Common-pleas
at
Serjeants
Inn
in
London
,
upon
an
Original
brought
in
London
,
and
certifies
this
into
the
Court
of
Common-Pleas
,
and
is
there
enrolled
;
but
it
appears
on
Record
,
that
it
was
taken
as
before
,
a
Scire
fac
'
may
be
awarded
upon
this
Recognizance
to
the
Sheriff
of
London
where
the
Capias
was
,
for
there
was
the
Commencement
of
it
,
and
also
the
Scire
fac
'
may
Scire
Fac.
the
Sheriff
of
London
or
Middlesex
on
Recognizance
of
Bail
.
be
awarded
to
the
Sheriff
of
Middlesex
where
the
Recognisance
was
enrolled
,
1
Rol.
Abridg
'
891.
Johns
and
Lee
,
Andrews
and
Harbin
,
Poltney
and
Forebench
,
Feildgate
and
Gardener
,
contra
.
5
Mariae
by
Brook
,
And
by
all
the
Prothonotaries
then
,
it
ought
to
be
brought
in
London
and
not
in
Middleseas
.
But
in
13
Car
1.
the
Prothonotaries
certified
that
it
may
be
brought
in
London
or
Middlesex
.
W.
2
c.
18.
saith
Vic.
ei
liberet
Medietat'
per
rationabile
extent
.
(
viz.
)
per
inquisition
,
and
the
Sheriff
Serjeant
at
Mace
may
execute
Elegit
.
is
sworn
,
and
a
Serjeant
at
Mace
is
not
sworn
to
take
a
Jury
;
yet
the
Stat.
extends
to
every
other
immediate
Officer
,
to
any
of
the
Kings
Courts
of
Record
,
and
so
a
Serjeant
may
execute
this
,
and
a
Fieri
Fac
'
also
,
and
this
Stat.
couples
Elegit
with
a
Fieri
Fac
'
and
limits
both
to
be
executed
by
the
Sheriff
,
but
in
Wast
and
Redisseisen
,
the
Sheriff
must
do
it
in
person
.
4
Rep.
65
,
66.
Fullwoods
.
Case
If
a
Man
recover
Damages
in
Action
of
Wast
The
Writ
to
levy
Damages
in
Waste
to
whom
to
be
derected
.
in
one
County
,
the
Writ
to
levy
them
shall
issue
to
the
Sheriff
of
the
same
County
where
the
Action
was
first
brought
,
and
not
to
any
other
;
but
if
the
Sheriff
retorn
he
had
nothing
,
he
shall
have
execution
into
any
other
County
where
the
Recoveror
will
.
29
Ed.
3.
9.
b.
Having
treated
of
Executions
in
general
,
as
far
as
relates
to
Sheriffs
;
I
shall
now
proceed
to
speak
of
Executions
in
particular
,
as
to
the
Sheriffs
demeanor
about
the
executing
of
them
,
and
making
due
Retorns
upon
them
.
And
'
it
s
a
Point
very
fit
for
the
consideration
of
all
Sheriffs
specially
.
There
are
but
4
mannner
of
Executions
,
Two
by
the
Common
Law
,
and
Two
by
the
Stat.
Law
,
by
Common
Law
|
-
Levari
-
&
-
Fi'
Fac
'
|
Executions
.
|
-
Stat.
Staple
,
-
St.
Merchant
,
-
Recognizance
.
|
By
Statute
Law
|
-
Capia
.
-
Elegit
.
|
Of
which
I
shall
treat
distinctly
,
limiting
my self
therein
to
the
duty
and
Behaviour
of
Sheriffs
,
And
first
of
the
Capias
.
Capias
ad
Satisfaciend
is
a
judicial
Writ
and
lyes
where
a
man
hath
recovered
in
a
personal
Action
,
any
Debt
or
Damages
in
the
Kings
Court
,
directed
to
the
Sheriff
to
command
him
to
take
the
Body
of
the
person
condemned
in
Debt
and
to
put
him
in
Prison
till
satisfaction
made
.
Of
Capias
ad
satisfaciend
'
against
whom
and
Cap.
ad
sa
.
for
what
it
lies
,
and
the
Sheriffs
demeanor
therein
,
and
retorn
thereof
.
It
lies
not
against
an
Earl
,
Duke
or
Baron
,
or
their
Wives
,
except
in
some
special
cases
,
nor
against
an
Heir
or
Executor
,
except
in
false
pleading
.
It
lyes
against
such
Presons
against
whom
a
Lyes
not
for
a
recovery
of
Damages
in
all
Actions
.
Capias
doth
lye
in
the
commencement
of
a
Suit
,
as
Debt
,
Account
,
Action
on
the
Case
,
Trespass
Vi
&
Armis
,
Annuity
and
Covenant
;
but
it
lies
not
for
a
recovery
of
Damages
in
a
real
Action
.
If
one
be
in
Execution
by
Ca.
Sa.
which
is
returned
,
no
other
Execution
can
be
sued
against
him
,
his
Lands
and
Goods
,
vid.
Stat.
21
Jac.
14.
A
Capias
is
to
have
the
Body
of
such
an
one
such
a
day
,
and
the
Sheriff
brings
the
Body
or
retorns
the
Writ
before
the
day
,
It
is
good
.
Winch.
p.
7.
If
one
be
delivered
in
Execution
by
the
Kings
Writ
,
he
is
presently
in
Execution
and
in
Custody
without
Laying
hands
on
him
to
Arrest
him
,
by
Cok.
C.
J.
The
Sheriff
is
to
be
Excused
for
taking
one
Sheriff
takes
one
by
a
false
name
by
a
false
Name
in
Execution
;
and
if
the
Judges
admit
this
false
Name
,
yet
the
Judicial
Writ
ought
not
to
be
Examined
by
the
Sheriff
,
Lane
Rep.
49
,
52.
Doyly
and
Jolliff
.
One
in
Execution
may
not
be
discharged
by
Habeas
corpus
or
Writ
of
Priviledge
;
and
if
one
taken
on
Contempt
be
taken
in
Execution
,
he
shall
not
be
set
at
Large
,
Siderfin
289.
Swallowe's
Case
.
Id.
p.
90.
The
Sheriff
may
execute
Process
of
Execution
Execution
against
one
attaint
of
Felony
.
against
one
attaint
of
Felony
and
in
Custody
,
if
he
please
;
and
if
the
Felony
be
pardoned
,
or
the
Attainder
reversed
,
he
shall
be
in
Execution
,
Mo.
178
,
274.
Mich.
10
Car.
1.
B.
R.
Chappel's
Case
.
If
a
man
recovered
Debt
against
B.
and
levy
Ca.
sa
.
after
a
Fi.
fa.
part
of
the
Debt
by
Fieri
fac
'
,
which
is
Retorned
;
yet
he
may
take
the
Body
of
B.
by
a
Cap'
ad
satisfac
'
for
the
residue
,
4
Jac.
B.
R.
Carter
and
Copping
.
Tho'
the
King's
Debtor
be
in
Execution
by
his
Body
or
his
Land
,
yet
the
Subject
may
take
him
in
Execution
by
his
Body
;
for
the
Statute
of
25
Ed.
3.
13.
is
to
be
intended
of
Executions
of
Lands
and
Goods
,
and
not
of
the
Body
,
which
is
tout
à
tout
,
Hobart
160.
Shirley's
Case
.
Of
Escape
of
one
in
Execution
by
Ca.
sa
.
Vide
tit
.
Escape
.
Sheriffs
of
Bristol
took
the
Plaintiff
by
a
Cap'
ad
satisfac
'
,
and
detained
him
in
Prison
until
the
party
Defendant
,
and
now
Plaintiff
,
paid
the
Money
to
the
Sheriff
.
Per
Cur'
,
This
was
contrary
to
his
Warrant
,
which
is
,
Ità
quod
habeat
denarios
in
Curia
;
and
because
he
did
not
so
,
he
is
chargeable
to
him
that
was
in
Execution
,
Hetley
122.
Read
and
Earlfield
.
A
Capias
ad
satisfac
'
was
Retornable
Quind
.
Retorn'
.
Mart.
and
that
Writ
was
Retorned
Album
breve
,
and
a
Testatum
thereupon
,
and
the
Defendant
taken
by
it
.
The
Testatum
issued
out
accordingly
,
because
the
Capias
was
not
Retorned
.
And
the
Court
granted
a
Supersedeas
,
1
Brownl
.
40.
Supersed'
.
Reyner
and
Mortimer
.
Debt
on
Judgment
in
B.
R.
the
Defendant
One
in
Execution
on
Cap'
ad
satisfac
'
,
ought
not
to
pay
the
Money
to
the
Gaoler
.
confesseth
the
Judgment
,
and
Execution
above
an
year
;
and
not
being
able
to
find
the
Plaintiff
,
he
paid
the
Money
to
the
Marshal
.
Plaintiff
Replies
,
he
did
not
absent
voluntarily
;
and
the
Defendant
demurrs
.
Judgment
pro
Querente
.
The
Sheriff
on
Cap'
cannot
receive
the
Money
as
on
Fieri
fac
'
,
nor
is
the
party
remediless
,
for
he
may
pay
his
Money
into
Court
,
1
Leon.
140.
and
have
an
Audita
Querela
;
but
the
Plaintiff
were
remediless
should
the
Gaoler
be
Insolvent
,
Dom'
Rex
and
Javan
.
He
on
Indictment
and
Conviction
of
a
Disorderly
House
,
was
Committed
to
the
Marshal
for
payment
of
a
Fine
,
but
before
actual
Imprisonment
the
Fine
was
paid
to
the
Marshal
;
yet
Resolved
,
this
is
no
good
payment
,
and
the
party
was
forc'd
to
pay
it
over
again
.
Per
Jones
,
It
is
doubtful
whether
Voluntary
payment
to
the
Sheriff
on
Fieri
fac
'
,
before
Execution
of
his
Goods
,
be
pleadable
in
Discharge
(
but
that
is
Adjudged
it
is
so
,
)
much
less
on
a
Cap'
which
is
ad
satisfaciend
'
the
party
in
Court
,
and
he
is
Committed
quousque
satisfaciat
parti
,
not
the
Sheriff
,
3
Keb.
788.
Taylor
and
Baker
.
Verdict
,
If
the
Issue
be
,
Whether
the
Sheriff
took
J.
S.
and
kept
him
in
Prison
under
his
Custody
in
Execution
by
force
of
a
Capias
ad
satisfaciend
'
;
and
the
Jury
found
he
took
him
by
force
of
an
Alias
Cap'
ad
satisfaciend
'
;
Although
it
is
not
found
he
kept
him
in
Execution
for
the
Debt
and
Damages
aforesaid
,
according
to
the
Issue
;
yet
this
is
a
good
Special
Verdict
.
For
it
shall
be
intended
;
for
the
Consequence
is
necessary
of
that
which
is
found
,
because
he
cannot
take
him
,
but
he
ought
to
be
in
Execution
,
Hobart
,
Foster
and
Jackson's
Case
.
Vide
3
Rep.
67.
Westby's
Case
.
5
Rep.
Blomfield
,
Garner
,
Frost
and
Drury's
Case
.
How
Execution
upon
a
Ca.
sa
.
shall
be
sued
upon
a
Judgment
against
two
or
more
,
and
he
shall
have
but
one
Execution
;
and
the
Execution
of
one
is
not
sufficient
,
but
the
Sheriff
may
take
the
Body
of
all
in
Execution
.
Vid.
5
Rep.
86.
Blomfield's
Case
,
and
11
Rep.
Godfrey's
Case
.
CHAP.
XVII
.
What
Goods
,
&c.
of
whom
shall
be
taken
in
Execution
on
Fieri
facias
,
or
not
.
After
the
Sheriff
has
seised
,
how
he
stands
in
the
Eye
of
the
Law
,
either
to
bring
Actions
for
the
Tortious
taking
them
away
,
or
to
make
satisfaction
to
the
party
who
recovered
.
Remedy
against
the
Sheriff
for
the
Money
to
the
value
of
the
Goods
taken
in
Execution
,
or
not
,
and
how
to
be
pursued
.
The
Sheriffs
Office
and
Demeanor
in
executing
a
Fieri
facias
,
and
of
the
Venditioni
exponas
and
the
Retorn
;
what
shall
be
a
good
Retorn
on
the
Fieri
fac
'
,
or
not
.
Of
Restitution
to
Lands
or
Goods
seised
by
the
Sheriff
after
Reversal
of
the
Judgment
,
and
after
Sale
of
the
Sheriffs
selling
a
Term
for
years
taken
in
Execution
,
and
when
such
Sale
shall
be
good
,
or
not
.
Whether
a
Scire
facias
shall
go
into
Wales
.
Of
Fieri
facias
.
I
Shall
next
Treat
of
Execution
by
Fieri
fac
'
;
which
is
a
Judicial
Writ
,
lying
for
him
who
hath
recovered
Debt
or
Damage
,
directed
to
the
Sheriff
,
Commanding
him
to
levy
the
same
of
the
Defendant's
Goods
:
And
it
lies
within
a
year
and
day
;
but
after
the
year
there
must
be
Scire
fac
'
.
This
Writ
of
Fieri
facias
is
only
against
the
Goods
and
Chattels
of
a
man
;
(
viz.
)
Leases
for
years
,
Corn
growing
or
sown
upon
the
Land
,
or
movable
Goods
;
as
Cattel
,
Corn
in
the
Barn
,
Houshold
Goods
,
Money
,
Plate
and
Apparel
,
Co.
1
Inst.
290.
6.
What
Goods
,
and
of
whom
shall
be
taken
in
Execution
by
Fieri
facias
,
or
not
.
Goods
pawned
shall
not
be
taken
in
Execution
Goods
pawned
.
for
the
Debt
of
him
which
pawned
them
,
during
the
time
they
are
pawned
,
Kitchin
226.
The
Sheriff
upon
a
Writ
of
Execution
may
Fornace
annexed
.
not
seise
and
sell
to
the
party
a
Fornace
annexed
to
the
Freehold
;
for
this
would
be
Waste
in
the
Lessee
,
37
El.
B.
C.
Day
and
Austin
.
The
Goods
Ecclesiastical
of
Clergy-men
are
Bona
Ecclesiastica
.
not
to
be
taken
by
the
Sheriff
,
but
by
the
Bishop
,
upon
a
Levari
fac
'
,
on
a
Recognizance
,
2
Inst.
472.
If
one
sell
any
Goods
to
another
depending
an
Action
against
him
,
these
Goods
afterwards
shall
not
be
put
in
Execution
;
for
they
were
lawfully
bought
,
(
if
done
bonâ
fide
,
and
valuable
Consideration
.
)
But
if
a
Fieri
facias
be
directed
to
make
Execution
of
Goods
,
and
after
the
Teste
of
the
Writ
,
and
before
the
Sheriff
executes
it
,
the
party
sells
his
Goods
bonâ
fide
,
they
may
nevertheless
be
taken
in
Execution
;
(
aliter
now
by
the
Statutes
of
Frauds
and
Perjuries
,
)
Cro.
El.
174.
Mo.
21.
n.
72.
If
the
party
dies
after
the
Writ
of
Execution
Goods
in
the
hands
of
the
Executor
.
awarded
,
and
before
it
be
served
,
the
Sheriff
may
serve
it
of
the
Goods
in
the
hands
of
the
Executor
.
For
by
the
Execution
awarded
the
Goods
are
bound
,
and
the
Sheriff
needs
not
take
notice
of
his
Death
,
Cro.
El.
181.
Parker
and
Mosse
,
1
Leon.
144
,
145.
mesme
Case
.
After
the
Sheriff
has
seised
the
Goods
,
how
he
stands
in
the
Eye
of
the
Law
.
Either
to
bring
Action
for
the
Tortious
taking
them
away
,
or
to
make
satisfaction
to
the
party
who
Recovered
.
The
Sheriff
may
have
Trover
or
Trespass
at
election
,
against
him
that
takes
them
away
;
as
Wilbraham
and
Snowe's
Case
.
The
Plaintiff
being
Sheriff
seizeth
the
Goods
in
Execution
by
force
of
a
Fieri
fac
'
,
and
after
(
and
before
the
Sale
of
them
)
the
Defendant
takes
them
and
carries
them
away
,
and
converts
them
to
his
own
use
;
and
the
Plaintiff
(
being
Sheriff
)
brings
his
Action
of
Trover
;
and
Adjudged
the
Action
well
lies
.
By
the
Seizure
of
the
Goods
in
Execution
the
Sheriff
hath
a
property
in
them
,
so
that
he
may
reseize
them
and
sell
them
,
as
well
when
he
is
out
of
his
Office
,
as
before
,
Mod.
Rep.
2
Sand.
47.
Wilbraham
and
Snow
,
Mod.
Rep.
57.
Ayre
and
Aden
,
2
Sand.
244.
Mildmay
and
Smith
,
Yelv.
contra
fo.
44.
Therefore
Dyer
99.
cited
in
Dalton
147.
is
not
Law
,
which
saith
,
That
by
the
Seizure
of
the
Sheriff
,
the
property
is
not
altered
until
they
be
sold
.
After
the
Debt
levied
,
the
Sheriff
is
Debtor
to
the
Plaintiff
,
and
capable
of
a
Release
from
him
,
the
Action
ceasing
against
the
Defendant
is
ipso
facto
by
the
Law
transferred
to
the
Sheriff
,
having
both
the
Judgment
to
make
it
a
Debt
,
and
the
Levy
to
make
him
answerable
;
and
tho'
Action
of
Account
will
properly
lye
in
this
Case
,
yet
the
same
will
many
times
bear
both
Actions
,
tho'
the
Moneys
be
received
by
auter
mains
,
or
the
like
,
Hob.
206
,
207.
Speak
and
Richards
.
The
Case
is
Reported
by
Roll
▪
thus
:
If
a
Sheriff
levy
Money
upon
a
Levari
facias
,
upon
a
Recognizance
at
the
Suit
of
J.
S.
and
Retorns
the
Writ
served
;
J.
S.
may
have
Debt
against
the
Sheriffs
Executors
.
But
in
that
Case
the
Plaintiff
demurred
to
the
Defendants
Plea
,
and
Concludes
ill
,
1
Roll.
Abr.
418.
The
Plea
was
grounded
upon
a
Release
,
and
Action
against
the
Sheriff
or
his
Executor
,
for
levying
money
on
the
Levari
and
not
retorning
the
Writ
.
should
have
demanded
Judgment
if
the
Defendant
should
be
admitted
to
plead
a
Release
,
made
after
the
Sheriff
had
made
his
Retorn
;
and
in
such
case
Action
lies
against
the
Sheriffs
Executor
,
altho'
it
does
not
appear
that
the
Fieri
fac
'
on
the
Judgment
was
Retorned
;
for
this
is
not
material
,
inasmuch
as
the
party
is
discharged
by
payment
of
it
without
Retorn
:
And
this
is
not
grounded
on
a
personal
Tort
,
but
on
a
Contract
in
Law
;
and
this
is
not
a
simple
Contract
,
but
principally
grounded
upon
a
Record
,
as
it
was
Adjudged
in
Parkinson
and
Culleyford's
Case
.
But
in
an
Anonymous
Case
,
Cro.
Car.
297.
Action
Action
by
Executor
,
for
levying
the
Debt
and
not
retorning
the
Writ
in
vita
Testatoris
.
on
the
Case
was
brought
by
Executor
against
the
Sheriff
,
who
had
levied
the
Debt
in
Execution
,
and
did
not
retorn
the
Writ
;
and
after
the
Testator
died
,
and
the
Plaintiff
for
that
Tort
,
in
vita
Testatoris
,
and
for
the
Loss
which
came
to
him
,
brought
the
Action
.
The
Quaere
was
,
if
it
lies
by
the
Executor
,
because
its
a
personal
Wrong
to
the
Testator
:
And
the
Court
was
divided
,
Cro.
Car.
297.
Vide
Escape
.
Where
and
what
remedy
against
the
Sheriff
for
the
Money
to
the
value
of
the
Goods
taken
in
Execution
,
or
not
.
The
diversity
lies
on
the
Sheriffs
Retorn
.
Retorn
.
If
the
Sheriff
in
executing
a
Fieri
fac
'
doth
not
misbehave
himself
,
he
shall
not
be
charged
in
Debt
or
Scire
fac
'
,
unless
it
appear
by
his
Retorn
that
he
had
the
Moneys
in
his
hands
.
As
if
the
Sheriff
retorn
,
Cepi
&
seisiri
feci
in
manus
meus
bona
&
catalla
ad
valentiam
160
l.
quae
remanent
in
manibus
meis
ob
defectum
emptorum
.
On
this
Retorn
the
Sheriff
shall
not
be
charged
in
Debt
or
Scire
facias
,
because
it
appears
not
that
he
has
misbehaved
himself
.
But
if
upon
the
Fieri
fac
'
the
Sheriff
Retorn
,
That
he
hath
levied
the
Money
,
and
doth
not
pay
it
to
the
Plaintiff
at
the
Retorn
of
the
Writ
,
the
Plaintiff
may
have
a
Scire
fac
'
against
the
Sheriff
,
to
shew
Cause
wherefore
the
Money
should
not
be
levied
of
the
Goods
of
the
Sheriff
,
2
Sand.
344
,
345.
Mildmay
and
Smith
,
Hutton
32.
11.
Smith
and
Linsey
.
So
if
in
Fieri
fac
'
to
levy
200
l.
Debt
,
&c.
the
Sheriff
Retorns
,
That
he
had
made
a
Warrant
to
his
Bayliff
,
who
had
seised
divers
Goods
of
the
said
S.
ad
valentiam
of
160
l.
and
that
they
were
rescued
out
of
their
Custody
,
ita
quod
he
could
not
Levy
the
Debt
,
and
that
the
said
S.
nulla
alia
habuit
bona
.
The
Plaintiff
may
bring
a
Scire
fac
'
to
have
Execution
against
the
Sheriff
for
the
Moneys
,
according
to
the
value
Retorned
,
and
the
Sheriff
shall
pay
it
out
of
his
own
proper
Goods
,
1
Anders
.
247.
Roke
and
Wilmot
.
With
this
agrees
,
9
Ed.
4.
50.
Scire
fac
'
21.
If
Old
Sheriff
.
Scire
fac
.
against
the
old
Sheriff
to
pay
the
Money
levied
in
execution
.
the
Sheriff
Retorn
upon
a
Scire
fac
'
,
that
he
hath
levied
the
Mony
and
hath
the
same
in
Court
,
but
hath
not
the
Money
at
the
day
,
and
then
a
new
Sheriff
is
chosen
;
in
this
Case
it
being
on
Record
,
that
the
Money
is
levied
by
the
old
Sheriff
,
a
Scire
fac
'
shall
issue
against
the
old
Sheriff
to
pay
it
.
And
if
he
cannot
or
will
not
Discharge
and
pay
the
Money
,
the
Party
shall
have
a
Fieri
fac
'
or
Elegit
against
the
Sheriff
,
of
his
proper
Goods
.
On
Fieri
fac
'
the
Sheriff
seised
several
Goods
which
were
Mercery
Ware
,
and
Retorns
Fieri
fac'
ad
valentiam
—
which
Retorn
was
Filed
.
The
Sheriff
appears
and
prays
to
amend
the
Retorn
,
because
some
of
the
Goods
were
impaired
by
lying
,
and
he
could
not
get
Buyers
.
Per
Cur'
1.
Such
Retorn
may
not
be
altered
,
Retorn
not
amendable
after
it
is
Filed
.
after
it
is
Retorned
and
Filed
.
2.
Where
the
Sheriff
Retorns
Fieri
fac'
ad
valentiam
,
this
shall
be
no
excuse
of
his
payment
of
the
Money
,
because
he
might
have
Retorned
he
had
seised
the
Goods
,
and
that
they
remain
pro
defectu
emptorum
,
and
then
he
may
be
excused
,
if
the
bona
peritura
perish
,
Siderfin
p.
40.
Needham
and
Bennet
.
Therefore
the
Sheriffs
were
ordered
to
pay
the
Money
,
and
to
answer
Interrogatives
for
their
Contempt
,
having
been
ordered
to
bring
in
the
Money
,
and
not
appearing
till
a
Tipstaff
was
sent
.
As
to
amendment
of
Retorns
.
Matter
of
Form
Amendment
of
Retorn
.
in
a
Retorn
is
amendable
,
but
not
matter
of
fact
;
which
goes
to
justification
of
the
Imprisonment
,
2
Bulst.
259.
Dr.
Alphouses's
Case
.
The
Sheriff
Demeaner
in
Executing
the
Fieri
fac
'
.
If
the
Sheriff
have
a
Fieri
fac
'
against
a
Mans
Tresp
.
versus
vicount
Goods
,
and
before
Execution
he
pay
him
the
Money
,
in
this
case
he
cannot
do
Execution
after
,
and
if
he
do
,
an
Action
of
Trespass
or
false
Imprisonment
lies
against
him
,
B.
R.
p.
12
Jac.
1.
As
to
breaking
open
Houses
to
do
this
Execution
vid.
supra
.
The
Sheriff
upon
a
Scire
fac
'
cannot
deliver
Cannot
deliver
Goods
in
satisfaction
of
the
Debt
.
the
Defendants
Goods
to
the
Plaintiff
in
satisfaction
of
his
Debt
,
but
must
retorn
the
Execution
in
Court
,
Cro.
El.
504.
Tompson
and
Clark
Noy
56.
Mesme
Case
.
Action
on
the
Case
was
brought
against
the
Sheriff
,
for
fraudulent
omission
of
Execution
of
Goods
that
were
in
Conspectu
suo
;
but
he
saith
not
in
his
Declaration
,
that
he
knew
them
to
be
the
Goods
of
the
Defendant
in
that
Action
:
And
for
this
omission
after
Verdict
Judgment
was
Arrested
,
by
Twisden
and
Windham
,
1
Keb.
946.
The
gift
of
the
Action
is
the
fraud
,
which
cannot
be
without
notice
,
which
is
now
wrapt
in
the
Verdict
,
tho'
it
could
not
be
pleaded
,
the
Sheriff
being
bound
to
take
notice
whose
Goods
they
are
,
Russel
and
Comber
.
On
Fieri
fac
'
against
J.
S.
who
has
the
Goods
of
Sheriff
sells
the
Goods
of
J.
S.
a
strange
Security
.
A.
in
his
possession
,
if
the
Sheriff
sell
these
Goods
,
Trover
or
Trespass
will
lye
against
him
;
and
to
prevent
this
,
all
the
Sheriffs
of
England
take
Security
,
Keb.
693.
Sander's
Case
.
Quaere
if
the
Seriff
may
take
Bond
for
his
Security
:
But
the
safest
course
is
,
for
the
Sheriff
to
enquire
by
a
Jury
in
whom
the
property
of
the
Goods
is
,
or
else
not
to
meddle
with
any
such
Goods
,
which
do
not
plainly
appear
to
him
to
be
the
Defendants
,
and
it
being
found
by
the
Jury
,
that
excuseth
the
Sheriff
.
Pleading
by
the
Party
,
who
has
paid
the
Money
to
the
Sheriff
.
In
Detinue
the
Plaintiff
had
Judgment
,
and
brought
Scire
fac
'
to
have
Execution
.
Defendant
pleads
,
that
upon
a
Distringas
to
the
Sheriff
on
that
Judgment
,
he
delivered
such
Goods
to
the
Sheriff
,
and
for
the
residue
that
they
were
appraised
at
so
much
by
Inquisition
taken
by
the
Sheriff
,
and
that
he
delivered
the
Money
to
the
Sheriff
,
but
he
doth
not
aver
this
matter
to
be
Retorned
by
the
Sheriff
;
it
s
a
good
Plea
,
for
otherwise
the
Defendant
should
be
prejudiced
,
for
he
might
have
twenty
several
Executions
served
against
him
upon
one
Judgment
;
and
he
should
be
put
to
his
remedy
against
the
Sheriff
only
,
who
may
be
insolvent
.
And
it
is
a
less
mischief
to
inforce
the
Plaintiff
,
if
his
Plea
be
true
,
to
take
his
Action
for
it
against
the
Sheriff
,
and
if
it
be
not
true
,
to
take
Issue
thereupon
,
Crok
.
El.
390.
Atkinsons
Case
.
Now
if
the
Sheriff
levy
Goods
by
force
of
a
Where
the
Plaintiff
shall
have
a
new
Fieri
fac
'
,
or
not
.
Defendant
discharged
upon
seising
the
Goods
by
the
Sheriff
.
Fieri
fac
'
,
and
delivers
them
not
to
the
party
,
nor
retorns
the
overplus
,
the
Plaintiff
may
have
a
new
Fieri
fac
'
,
because
a
Record
shall
not
be
avoided
by
a
matter
in
Fact
:
But
by
the
taking
the
Goods
of
the
Defendant
to
the
value
of
the
Debt
by
the
Sheriff
,
the
Defendant
is
discharged
,
altho'
the
Sheriff
do
not
satisfie
the
Plaintiff
,
therefore
he
shall
not
have
a
new
Execution
,
2
Rolls
Rep.
57.
p.
Jac.
1
Rolls
Ab.
902.
Where
a
Sheriff
on
a
Fieri
fac
'
Retorns
,
that
New
Execution
.
he
had
seised
Goods
of
lesser
value
which
were
rescued
,
and
that
nulla
alia
bona
,
&c.
the
Plaintiff
may
not
Sue
a
new
Execution
,
but
only
for
the
surplus
beyond
the
value
of
the
Goods
rescued
,
2
Sanders
344.
Mildmay
and
Smith
.
If
the
Sheriff
levy
Money
in
Execution
,
the
Lord
Keeper
cannot
order
the
Money
shall
stay
in
the
Sheriffs
hands
,
or
order
that
the
Plaintiff
shall
not
call
for
it
,
Marsh
Rep.
54.
If
the
Sheriff
shall
Retorn
Fieri
feci
,
sed
non
inveni
emptores
,
then
a
Venditioni
exponas
shall
go
out
.
Of
the
Sheriffs
Selling
Goods
on
Fieri
fac'
,
and
of
the
Venditioni
exponas
.
As
to
what
Sale
is
good
or
not
.
If
the
Plaintiff
tenders
the
Debt
,
it
s
a
wrong
for
the
Sheriff
to
sell
the
Goods
,
1
Keb.
655.
Lefans
Case
.
If
Goods
remain
in
the
Sheriff
hands
,
for
default
of
buyers
,
and
there
perish
,
the
Sheriff
shall
not
be
chargable
.
But
if
the
Sheriff
refuse
a
buyer
,
Action
on
the
Case
lies
,
2
Keb.
464.
Needham's
Case
.
The
Sheriff
took
the
Defendants
Goods
in
After
seising
the
Goods
and
before
sale
a
Supersedeas
.
Execution
by
Fieri
fac
'
,
and
before
Sale
the
Record
was
removed
by
a
Writ
of
Error
into
the
Exchequer
Chamber
,
and
a
Supersedeas
awarded
;
and
the
Sheriff
retorned
upon
the
Fieri
fac
'
,
seisure
of
the
Goods
,
and
that
they
remained
in
his
hands
pro
defectu
emptorum
;
and
he
also
retorned
,
that
a
Supersedas
was
awarded
,
&c.
and
hereupon
it
was
prayed
for
the
Defendant
,
that
he
might
have
restitution
of
his
Goods
.
Crok
.
Eliz.
597.
But
per
Curiam
,
Altho
this
Record
be
removed
,
and
notwithstanding
the
Supersedeas
awarded
,
in
regard
it
came
not
to
the
Sheriff
,
till
he
had
begun
to
make
Execution
,
as
appears
by
his
Retorn
,
that
a
Venditioni
exponas
shall
be
awarded
Venditioni
exponas
.
to
perfect
it
▪
And
altho'
the
Plea
Roll
be
removed
,
yet
it
shall
be
awarded
on
the
Retorn
of
the
Fieri
fac
'
which
remains
still
in
the
Office
.
But
as
it
is
in
1
Keb.
324.
Brownwood
and
Estwel
,
if
the
Error
were
allowed
before
seisure
,
then
tho'
the
Sheriff
be
unpunishable
in
that
Case
,
yet
Supersedeas
notwithstanding
Execution
done
shall
go
,
quia
improvide
,
&c.
And
per
C●riam
if
the
Goods
be
sold
,
the
Money
may
be
brought
into
Court
to
be
restored
to
the
Party
;
but
if
not
,
the
Goods
may
in
Goods
restored
in
specie
.
specie
be
restored
.
But
if
before
Sale
a
Supersedeas
comes
to
him
,
Under
sale
.
if
the
Sheriff
after
Sells
the
Goods
without
a
Writ
of
Venditioni
exponas
,
this
is
void
.
p.
8.
Car.
1.
Scarling
and
King
.
The
Sheriff
sells
Bricks
for
7
s.
per
thousand
on
the
place
,
for
which
he
might
have
16
s.
per
thousand
.
The
question
was
,
Who
should
pay
the
overplus
,
the
Buyer
or
the
Sheriffs
Executors
.
And
per
Curiam
,
The
Sheiffs
Executors
shall
pay
the
overplus
;
the
Sale
being
absolute
,
and
not
an
Argeement
to
Sell
,
3
Keb.
285.
Cutten
and
Hunt
.
The
Sheriff
perswaded
the
Jury
to
prize
the
Goods
at
undervalue
,
and
so
sold
them
.
This
is
an
Oppression
enquirable
at
the
Assizes
by
Indictment
,
Crok
.
Jac.
426.
Cayers's
Case
.
If
the
Sheriff
upon
a
Fieri
fac
'
against
J.
S.
Where
the
old
Sheriff
after
a
Writ
of
discharge
may
sell
.
seise
certain
Wood
whereof
J.
S.
was
possessed
,
and
the
Sheriff
pay
parcel
of
the
Money
received
,
and
does
not
Retorn
his
Writ
,
and
after
the
Sheriff
is
removed
and
another
Sheriff
chosen
,
and
after
the
Writ
of
Discharge
delivered
to
him
he
sells
the
Wood
,
this
is
a
lawful
sale
,
because
by
the
seisure
altho'
the
Writ
is
not
retorned
,
he
is
chargeable
to
the
Party
,
Tr.
3.
Jac.
B.
R.
Cro.
Jac.
73.
Ayer
and
Aderly
.
And
there
a
Distringas
issued
to
the
new
Sheriff
to
distrain
the
Ancient
Sheriff
to
expose
to
sale
,
which
does
not
give
to
him
Authority
to
sell
,
but
compells
him
to
do
that
which
he
might
do
by
Law
.
But
if
upon
a
Fieri
fac
'
,
the
Sheriff
Retorns
that
he
had
seised
the
Goods
,
but
non
invenit
emptores
,
and
But
the
old
Sheriff
after
removeal
may
not
sell
upon
non
invenit
emptores
retorned
.
Venditioni
exponas
.
after
he
is
removed
,
and
a
new
Sheriff
made
,
the
old
Sheriff
may
not
sell
them
after
,
tho'
a
Distringas
come
to
him
,
and
if
he
sell
them
the
sale
is
not
good
,
for
the
new
Sheriff
must
sell
them
,
P.
32.
El.
Dodd
and
Conney
,
2
Latch
117
,
Dixson's
Case
.
A
Venditioni
exponas
may
not
be
awarded
,
if
it
appear
that
the
Goods
are
out
of
the
Hands
of
the
Sheriff
,
2
Sanders
344.
Mildmays
Case
.
What
shall
be
a
good
retorn
of
the
Sheriff
on
a
Fieri
fac
'
or
not
.
Note
,
If
the
Sheriff
do
make
Execution
on
Where
there
needs
no
Retor●
on
Fieri
fac
'
.
Fieri
fac
'
tho'
he
never
retorn
the
Fieri
fac
'
,
yet
the
Execution
is
good
.
Aliter
in
Elegit
.
Vid.
infra
,
And
if
the
Sheriff
levy
the
Money
and
give
it
the
Plaintiff
,
tho'
he
never
make
any
Retorn
to
the
Court
,
it
is
good
enough
.
4
Rep.
64.
Fullwoods
Case
,
and
p.
90.
Hoes
Case
.
The
Bayliff
of
the
Savoy
levied
Goods
,
and
yet
Retorns
nulla
bona
on
Attachment
,
and
for
causesaith
,
that
one
V.
at
the
time
of
the
Execution
shewed
a
Bill
of
Sale
on
good
consideration
,
whereby
if
he
executed
,
he
was
liable
to
an
Action
:
and
therefore
,
without
Security
to
save
Security
to
the
Sheriff
.
him
harmless
,
he
refused
to
make
any
other
Retorn
;
which
the
Court
agreed
,
and
ordered
the
Money
to
be
brought
into
Court
,
and
as
the
Trial
goes
between
the
Sheriff
and
V.
the
retorn
to
be
amended
or
not
,
1
Keb.
901.
Upon
a
Fieri
fac
'
,
the
Sheriff
retorneth
qd'
nihil
habet
,
this
is
not
good
without
saying
further
,
nec
habuit
post
receptionem
brevis
,
39
H.
6.
Fitz.
Ret.
30.
On
Recovery
of
Debt
on
Fieri
fac
'
directed
to
Ret'
quod
Clericus
est
beneficiatus
the
Sheriff
of
London
,
he
retorned
qd'
Clericus
est
beneficiatus
in
Ely
.
The
Court
conceived
this
retorn
improper
,
in
regard
there
should
have
been
a
suggestion
on
the
Roll
,
after
the
retorn
made
by
the
Sheriff
of
London
,
that
the
Defendant
had
Goods
in
Ely
,
and
that
the
Sheriff
of
that
County
should
have
made
this
Retorn
of
Clericus
beneficiatus
.
Now
if
the
Sheriff
of
London
retorn
nulla
bona
,
but
that
he
is
Clericus
beneficiatus
in
Ely
,
thereupon
went
a
Fieri
fac
'
to
the
Bishop
of
Ely
on
Testatum
,
and
he
retorned
that
he
had
nulla
bona
Ecclesiastica
;
this
retorn
by
some
is
not
good
,
but
he
ought
to
Retorn
a
Sequestration
,
having
admitted
him
to
be
Clericus
beneficiatus
;
but
he
is
not
estopped
to
say
,
that
he
is
not
Clericus
beneficiatus
by
the
Retorn
of
the
Sheriff
.
The
Court
agreed
,
the
Fieri
fac
'
well
directed
to
the
Bishop
and
not
to
the
Sheriff
,
but
they
conceived
it
a
good
Retorn
,
and
if
it
be
false
the
Plaintiff
may
have
his
Action
on
the
Case
,
1
Keb.
497.
2
Keb.
83.
Picard
and
Payton
.
On
a
Statute
,
if
the
Sheriff
retorn
quod
est
Clericus
beneficiatus
nullum
habens
Laicum
feod'
nec
bona
nec
catalla
,
but
that
he
is
beneficiatus
in
such
a
Diocess
,
then
a
Writ
of
Sequestration
shall
go
to
the
Bishop
to
Sequester
the
Profits
,
and
to
deliver
them
to
the
Conisee
until
he
be
satisfied
,
2
Rolls
Abridgm
.
474.
Pope
and
Bautree
.
If
there
be
false
Retorn
on
a
Fieri
fac
'
,
the
Action
on
the
Case
on
a
false
Retorn
on
Fierifa●
.
remedy
is
by
Action
on
the
Case
.
In
a
Fieri
fac
'
to
the
Sheriffs
of
London
,
they
Retorn
nulla
bona
,
but
that
he
is
Clericus
beneficiatus
in
Ely
;
upon
which
a
Writ
issues
to
the
Bishop
of
Ely
,
and
he
retorns
nulla
bona
Ecclesiastica
:
If
it
be
so
that
he
hath
a
Spiritual
living
,
the
Plaintiff
may
have
Action
on
the
Case
against
the
Bishop
,
Siderfin
p.
276.
The
Party
may
aver
the
value
of
the
Goods
greater
than
the
Retorn
,
but
the
Sheriff
is
Estop't
,
2
Keb.
789
,
821.
Retorn
of
a
Fieri
facias
.
VIrtute
istius
brevis
Fieri
fe●i
de
bonis
&
catallis
terris
&
tenementis
infranominat
'
R.
B.
ad
valentiam
200
l.
&
illa
de
die
in
diem
venditioni
exposui
&
i●de
vendidi
ad
valentiam
100
l.
Qu●●
quidem
centum
libras
ad
diem
&
locum
infra
Content'
parat'
habeo
ad
reddend'
infranomin●t
'
J.
W.
prout
interius
mihi
praecipitur
,
&
resid'
bonorum
&
catallorum
praedict'
adhuc
penes
me
remanen●
i●vendit'
ob
defect'
emptorum
.
VIrtute
istius
brevis
cepi
bona
&
catalla
A.
W.
infrascript'
ad
valentiam
omnium
denariorum
infrascript
.
Et
illa
venditioni
exposui
ad
quod
nondum
inveni
emptores
.
Et
ideo
denarios
infraspecificat'
habere
non
possum
ad
diem
&
locum
infracontent'
,
prout
mihi
praecipitur
.
Other
Forms
of
Retorns
,
vid.
Dalton
,
cap.
61.
Of
Restitution
to
Lands
or
Goods
seised
by
the
Sheriff
,
after
Reversal
of
the
Judgment
,
in
what
Cases
it
shall
be
,
and
in
what
not
.
If
a
man
recover
Damages
,
and
had
Execution
by
Fieri
fac
'
,
and
upon
a
Fieri
fac
'
the
Sheriff
sells
the
Term
for
years
to
a
Stranger
,
and
after
the
Judgment
is
Reversed
,
he
shall
only
be
restored
to
the
Moneys
for
which
the
Term
was
sold
,
which
was
by
default
of
the
party
,
and
not
to
the
Term
it self
;
because
the
Sheriff
had
sold
this
by
Command
of
the
Writ
of
Fieri
fac'
,
Dyer
363.
8
Rep.
143.
Dr.
Drury's
Case
,
19.
b.
Matthew
Manning's
Case
,
5
Rep.
90.
b.
Hoe's
Case
.
So
if
the
Goods
of
a
man
Outlawed
be
sold
by
the
Sheriff
upon
a
Cap.
Utlagat
.
and
after
the
Outlawry
is
Reversed
by
Writ
of
Error
,
he
shall
be
restored
to
the
Goods
themselves
;
because
the
Sheriff
was
not
compellable
to
sell
these
Goods
,
but
only
to
keep
them
for
the
use
of
the
King
,
5
Rep.
90.
Hoe's
Case
.
But
upon
Fieri
fac
'
he
shall
have
Restitution
only
to
the
value
:
1.
Else
none
would
buy
.
2.
By
Fieri
fac
'
the
Sheriff
is
compellable
to
levy
the
Debt
upon
the
Goods
:
One
is
compulsio
,
the
other
voluntas
,
8
Rep.
143.
Dr.
Drury's
Case
.
If
a
man
recover
Damages
,
(
as
suppose
in
a
Writ
of
Covenant
)
against
B.
and
had
Elegit
of
his
Chattels
,
and
of
the
moiety
of
his
Lands
;
and
the
Sheriff
upon
this
Writ
delivers
a
Lease
for
years
of
Land
which
B.
had
,
to
the
value
of
50
l.
part
of
the
Sum
recovered
,
and
after
B.
Reverseth
the
Judgment
;
he
shall
be
restored
to
the
Term
it self
,
and
not
to
the
Value
.
For
tho'
the
Sheriff
might
have
sold
the
Term
upon
this
Writ
;
yet
here
is
not
any
Vendition
to
a
Stranger
,
but
a
delivery
of
a
Term
to
the
party
who
recovers
,
by
way
of
Extent
without
any
Sale
,
and
therefore
the
Owner
shall
be
restored
:
For
the
Sheriff
is
not
bound
by
this
Writ
to
sell
the
Term
,
as
he
is
in
a
Fieri
fac'
,
Pasch.
16
Car.
B.
R.
Buckhurst
and
Mayo
.
Quaere
,
For
this
is
a
Sale
;
all
the
Term
being
delivered
to
the
party
according
to
the
value
in
gross
,
and
not
annual
,
1
Roll.
Abr.
778.
So
if
Personal
Goods
were
delivered
to
the
party
per
rationabile
pretium
&
extentum
,
upon
Reversal
of
the
Judgment
he
shall
be
restored
to
the
Goods
themselves
for
the
same
Reason
.
Lessee
for
99
years
,
by
his
Will
devised
his
Lease
in
these
words
;
(
viz.
)
I
devise
my
Lease
to
my
Wife
during
her
Life
,
and
after
her
death
,
I
will
,
that
it
go
to
her
Children
unpreferred
;
and
made
his
Wife
Executrix
and
dyed
.
The
Wife
entred
and
married
with
J.
S.
and
afterwards
for
140
l.
Debt
recovered
against
J.
S.
on
a
Fieri
fac
'
the
Term
was
sold
by
the
Sheriff
,
and
afterwards
the
Judgment
was
reversed
by
Writ
of
Error
,
and
awarded
,
quod
omnia
quae
amifit
ratione
judicii
restituantur
.
The
Wife
(
the
Executrix
)
died
.
And
per
Cur
'
These
Points
were
Resolved
:
1.
The
Executory
Devise
of
the
Lease
after
the
death
of
his
Wife
to
the
Daughter
(
Unpreferred
)
was
good
.
2.
That
the
Sale
made
by
the
Sheriff
upon
the
Scire
fac
'
,
did
not
destroy
the
Executory
Devise
.
3.
That
sale
made
of
the
Term
by
the
Sheriff
stood
good
,
altho'
the
Judgment
was
Reversed
;
and
the
Plaintiff
(
the
Daughter
)
shall
be
restored
to
the
value
of
the
Term
,
but
not
to
the
Term
it self
;
and
yet
the
Vendee
had
an
absolute
property
in
the
Term
during
the
Life
of
the
Wife
,
Mich.
27
El.
B.
R.
Amner
and
Lodington
,
8
Rep.
96.
Manning's
Case
.
A
Judgment
in
D.
being
Reversed
in
B.
R.
a
Writ
of
Restitution
was
awarded
,
and
to
enquire
what
were
the
Profits
of
the
Land
recovered
à
tempore
judicii
;
(
videlicet
)
7
Aug.
19
Jac.
And
the
Inquisition
retorned
,
That
they
amounted
to
10
l.
Per
Cur
'
,
The
Writ
is
ill
;
for
it
ought
not
to
have
been
,
what
the
profits
of
the
Land
amounted
unto
from
the
Judgment
.
For
the
Plaintiff
is
not
to
answer
the
Profits
longer
than
from
the
time
of
the
Execution
sued
.
Then
there
was
a
new
Writ
of
Restitution
,
which
was
,
What
profits
of
the
Land
the
Plaintiff
(
who
recovered
)
had
taken
colore
judicii
praedicti
,
which
was
2
Aug.
19
Jac.
and
after
the
Reversal
thereof
,
Cro.
Jac.
698.
Sympson
and
Juxon
.
Form
of
the
Retorn
.
J.
G.
&
alii
infranominat'
nihil
habent
nec
eorum
aliquis
nihil
habet
in
balliva
mea
,
unde
restitutio
bonorum
&
catall'
infrascript'
infranominat
'
W.
M.
habere
facere
potui
:
Necnon
24.
l.
infrascript'
eidem
W.
M.
fieri
facere
potui
prout
,
&c.
Virtute
istius
brevis
mihi
direct'
(
tali
die
&
anno
infrascript'
)
tenement'
infrascript'
cum
pertin'
reseisiri
&
infra-nominat
'
T.
&
H.
plenam
possession'
&
seisinam
inde
restitui
prout
interius
mihi
praecipitur
.
Of
the
Sheriffs
selling
a
Term
for
years
taken
in
Execution
,
and
when
such
Sale
shall
be
good
,
and
when
not
.
For
the
understanding
how
the
Law
is
in
this
Where
it
shall
be
in
the
Election
of
the
Sheriff
upon
Fi.
fac
.
to
him
directed
to
sell
a
Term.
or
deliver
it
on
Extent
.
Point
,
you
must
observe
a
diversity
between
the
sale
of
a
Term
on
a
Fieri
fac
'
,
and
Extent
on
an
Elegit
;
for
the
Elegit
is
,
Quod
per
Sacramentum
XII
.
proborum
,
&c.
per
rationabile
pretium
&
exentum
,
That
they
Appraise
the
Goods
and
Chattels
of
the
Debtor
,
and
extend
his
Lands
;
and
therefore
if
they
are
not
Appraised
by
the
Jurors
,
he
cannot
sell
them
,
(
as
Dyer
so
.
100.
and
so
is
5
Rep.
Palmer's
Case
.
)
Execution
by
Elegit
ought
to
be
per
Inquisitionem
per
Stat.
W.
2.
c.
18.
which
saith
,
(
per
rationabile
pretium
)
which
extends
to
Chattels
,
and
per
extentum
,
which
refers
to
Lands
.
In
Elegit
the
Goods
are
to
be
delivered
to
the
party
per
rationabile
pretium
;
but
in
Fieri
fac
'
the
Sheriff
must
sell
the
Goods
,
1
Keb.
566.
Glasswell
and
Morgan
.
In
Elegit
the
Term
may
not
be
extended
Difference
between
the
Extent
of
a
Term
on
Elegit
,
and
Sale
by
Fi.
fa.
without
shewing
the
certainty
of
the
Commencement
;
for
after
the
Debt
satisfied
the
party
is
to
have
his
Term
and
Remainder
.
But
upon
Fieri
fac
'
the
Sheriff
may
sell
,
and
his
Retorn
is
general
,
quod
fieri
feci
de
bonis
&
catallis
,
5
Rep.
Palmer's
Case
.
Now
the
Sheriff
is
to
be
careful
in
the
sale
Recital
of
a
Term
in
the
Sale
of
it
.
of
a
Term
on
Elegit
,
if
he
make
particular
Recital
,
that
there
be
no
mistake
.
But
a
general
Recital
is
better
:
As
,
In
Ejectment
it
was
found
by
Special
Verdict
,
that
the
Sheriff
upon
an
Elegit
impannelled
a
Jury
,
who
found
that
the
Defendant
was
possessed
of
a
Lease
for
100
years
,
which
began
at
Mich.
2
&
3
of
Ph.
&
M.
ubi
revera
,
as
it
was
found
it
begun
Mich.
3
&
4
of
Ph.
&
M.
cujus
quidem
H.
statum
interesse
&
terminum
in
tenementis
praedictis
praedict.
Juratores
appretiarunt
ad
80
l.
and
the
Sheriff
sold
it
to
the
Lessor
of
the
Plaintiff
for
80
l.
Now
the
Inquest
found
one
thing
,
and
he
sells
another
(
as
this
Case
was
,
)
and
the
Sale
not
being
warranted
by
the
Inquest
is
void
.
But
had
the
Inquest
found
he
had
been
possessed
of
such
Land
generally
for
the
Term
of
divers
years
to
come
,
and
they
had
Appraised
it
for
so
much
,
without
shewing
the
certain
beginning
or
determination
,
it
had
been
well
enough
,
for
they
shall
not
be
compelled
to
find
a
Certainty
,
not
having
means
to
be
informed
thereof
;
or
if
the
Sheriff
sells
all
such
Interest
which
the
Defendant
had
in
the
same
Term
,
the
Sale
had
been
good
,
5
Rep.
Palmer's
Case
.
So
is
Sir
G.
Sidenham's
Case
in
B.
R.
The
Inquest
on
a
Fieri
fac
'
found
that
the
Defendant
was
possessed
of
such
a
Term
,
and
mistook
the
Date
,
and
the
Sheriff
sold
it
;
the
Sale
was
not
good
.
And
on
the
New
Fieri
fac
'
the
Court
directed
that
it
should
be
found
,
That
he
was
possest
of
a
Lease
for
years
generally
,
and
yet
continuing
,
and
that
he
sold
it
,
Cro.
El.
584.
Palmer's
Case
,
4
Rep.
74.
mesme
Case
.
W.
and
his
Wife
possessed
of
a
Term
in
Baron
and
Feme
.
right
of
the
Wife
,
as
Administratrix
to
C.
W.
being
indebted
,
granted
it
to
B.
to
the
use
of
W.
and
his
Wife
for
their
Lives
,
and
afterwards
to
the
use
of
B.
himself
.
W.
is
sued
for
this
Debt
,
and
Recovery
against
him
,
and
a
Fieri
facias
being
awarded
to
the
Sheriff
,
he
for
this
Debt
of
W.
sold
the
Term
What
Term
not
extendible
.
to
the
Plaintiff
.
Per
Cur
'
.
This
Grant
of
the
Term
to
the
use
of
the
Grantor
himself
is
not
void
per
Stat.
1
H.
7.
for
this
Grant
is
not
to
avoid
Creditors
:
For
the
Term
being
in
right
of
the
Wife
as
Administratrix
,
and
if
it
had
so
continued
in
the
hands
of
W.
and
had
never
been
granted
,
this
was
not
extendible
for
the
Debt
of
W.
and
if
W.
had
it
as
Executor
himself
,
it
was
not
extendible
for
his
proper
Debt
,
and
Fraud
shall
not
be
intended
except
expresly
Fraud
not
to
be
intended
.
found
;
therefore
the
Sale
is
good
,
Cro.
El.
291.
Ridler
and
Punter
.
W.
had
Execution
out
of
the
Kings-Bench
by
Officer
first
sells
on
one
Judgment
and
delivers
upon
another
,
pretending
the
first
Judgment
was
fraudulent
.
The
Sale
shall
bind
the
King
.
Scire
facias
,
of
a
Term
,
which
was
sold
by
the
Bayliff
of
a
Liberty
.
After
,
upon
another
Judgment
the
Bayliff
delivers
this
Term
to
another
,
pretending
that
the
first
Judgment
and
Execution
was
fraudulent
.
But
per
Cur
'
it
is
not
well
done
;
for
he
is
not
a
Judge
of
Fraud
,
and
the
Court
will
not
allow
such
pretence
to
Sheriffs
and
Officers
,
Latch
.
p.
53.
Warrington's
Case
.
If
the
Sheriff
extend
or
sell
a
Lease
,
this
Sale
shall
bind
the
King
(
as
to
his
Debt
,
)
because
it
is
but
a
Chattel
,
and
there
was
no
Covin
,
8
Rep.
171.
Sir
Gerrard
Fleetwood
.
Upon
an
Execution
against
the
Husband
for
Sell
the
Wises
Term
for
the
Debt
of
the
Baron
.
his
Debt
,
the
Sheriff
may
sell
the
Wives
Term
during
her
Life
,
Co.
Lit.
351.
a.
The
Form
of
a
Retorn
of
Fieri
feci
on
a
Fieri
facias
.
Vide
Dalt
.
c.
61.
Whether
a
Fieri
fac
'
upon
a
Judgment
in
the
Kings-Bench
shall
go
into
Wales
.
Plaintiff
recovers
a
Debt
against
the
Testator
in
B.
R.
the
Action
was
laid
in
London
;
and
after
the
Death
of
the
Testator
the
Plaintiff
after
Judgment
in
Scire
fac
'
sues
a
Fieri
fac
'
at
London
,
upon
which
the
Sheriff
retorns
nulla
bona
,
by
which
he
sues
a
Testatum
fieri
fac
'
to
the
Sheriff
of
Montgomery
in
Wales
,
directed
to
levy
the
Moneys
recovered
de
bonis
Testatoris
in
manibus
Executoris
.
Upon
which
Writ
the
Sheriff
Retorns
this
:
EGo
C.
L.
Baronet'
,
Vic.
infra-mentionat'
Comit
'
Montgomery
domini
Regi
humillime
Certifico
quod
infra
specificat'
Comitat
'
Montgomery
est
un'
duodecim
Comitat'
infra
Principalitat'
sive
Dominium
dicti
Dom'
Regis
Walliae
ubi
Breve
Domini
Regis
ipsum
regem
minime
tangen'
non
currit
,
quodque
non
patet
per
istud
breve
quod
idem
breve
dictum
Dom'
regem
ullo
modo
tangat
,
unde
advisament'
Curiae
dict'
Dom'
Regis
coram
ipso
Rege
humillime
imploro
si
mandatum
istius
brevis
exequi
poterim
.
C.
L.
Baronet
,
Vic'
.
The
Sheriff
on
this
Retorn
was
amerced
,
Sheriff
not
to
dispute
the
Jurisdiction
of
the
Court.
and
that
the
Plaintiff
should
have
a
new
Writ
.
For
the
Sheriff
by
his
Retorn
ought
not
to
dispute
the
Jurisdiction
of
the
Court
,
to
which
he
is
a
Minister
:
But
if
the
Court
erroneously
award
Process
which
was
not
to
be
awarded
,
the
Sheriff
ought
to
obey
and
execute
it
;
but
the
party
grieved
may
shew
this
Matter
to
the
Court
,
and
pray
that
they
will
supersede
their
Erroneous
Process
,
and
so
have
remedy
.
But
as
to
the
Question
,
vid.
2
Sand.
194.
Draper
and
Blaney
,
2
Keb.
657.
Draper's
Case
715.
Elegit
lies
into
Wales
,
and
so
doth
Execution
on
a
Statute
Merchant
,
and
that
breve
Dom.
Regis
non
currit
in
William
,
is
intended
of
Originals
,
not
on
Judicials
,
3
Keb.
170.
Witrong
and
Blaney
,
1
Bulstr
.
54.
Hall
and
Rotheram
,
Cro.
Jac.
484.
A
Capias
on
a
Fieri
fac
'
lieth
into
Wales
,
2
Keb.
715.
It
was
the
Opinion
formerly
,
that
a
Fieri
fac
'
.
on
Original
Judgment
in
B.
R.
doth
not
lye
into
Chester
,
Wales
,
&c.
but
as
Dyer
,
the
Court
shall
send
the
Record
and
Writ
thither
.
And
in
Action
of
Debt
there
it
may
be
;
but
it
s
granted
every
day
into
Lancaster
,
Wales
,
&c.
2
Keb.
410.
The
King
versus
Needham
and
Bennet
.
A
Writ
of
Execution
goes
into
Wales
,
and
27
H.
8.
c.
26.
makes
this
plain
;
for
by
it
Wales
and
England
are
annexed
,
PLowd
.
fo.
200.
Stradling
and
Morgan
.
CHAP.
XVIII
.
How
the
Sheriff
is
to
demean
himself
in
giving
Possession
and
Seisin
upon
the
Writs
of
Habere
fac'
possessionem
or
Seisinam
.
As
to
the
manner
of
doing
,
or
the
retorn
of
a
Supersedeas
.
Where
it
shall
stay
the
Sale
of
Lands
or
Goods
,
or
not
.
What
amounts
to
a
Supersedeas
.
Where
and
when
a
Writ
of
Error
is
a
Supersedeas
.
Of
Audita
Querela
.
IN
all
Cases
where
the
Execution
of
a
Judgment
,
The
Sheriff
to
make
Execution
of
the
thing
at
his
peril
.
in
which
the
Demand
is
of
a
thing
certain
;
If
the
Sheriff
do
this
thing
,
he
is
not
any
Disseisor
.
But
where
the
Execution
is
in
the
generalty
,
without
mentioning
of
any
thing
in
particular
,
there
the
Sheriff
ought
to
make
Execution
of
the
right
thing
at
his
own
peril
,
Diversity
.
otherwise
he
shall
be
a
Disseisor
;
for
he
is
bound
to
take
notice
of
it
,
and
he
had
not
any
Warrant
from
the
Court
to
make
Execution
of
any
but
the
right
thing
.
As
if
a
man
recover
in
Assize
divers
Houses
,
and
after
the
Tenant
reverseth
it
in
a
Writ
of
Error
,
and
a
Writ
of
Execution
issues
to
the
Sheriff
,
to
put
him
in
possession
of
the
Houses
which
he
had
lost
by
the
Judgment
,
altho'
the
Tertenants
are
Strangers
to
the
Recovery
,
and
for
this
they
ought
not
to
be
ousted
without
Scire
facias
against
them
;
yet
if
he
do
Execution
by
putting
them
in
possession
by
force
of
this
Writ
,
he
shall
not
be
any
Disseisor
,
for
that
he
hath
the
direct
Authority
of
the
Court
to
do
it
,
Pasch.
15
Jac.
Floyd
and
Bethel
.
So
in
Judgment
for
the
Casual
Ejector
for
47
Houses
,
and
on
Habere
facias
possessionem
the
Sheriff
turns
out
these
47
Tenants
,
and
80
other
Tenants
,
without
any
Process
or
Plea
against
them
.
Per
Cur
'
.
We
will
not
grant
any
Writ
Trespass
against
the
Sheriff
for
wrong
executing
Possession
.
to
supersede
the
Execution
against
the
80
Tenants
;
for
if
it
should
be
,
it
ought
to
be
quia
erronice
,
and
there
was
not
any
Error
in
the
proceedings
against
them
,
because
there
was
not
any
proceedings
.
But
they
did
Advise
,
that
every
one
should
bring
Trespass
against
the
Sheriff
,
2
Siderfin
155.
If
the
Sheriff
do
deliver
possession
of
more
Case
against
the
Sheriff
for
delivering
more
Acres
than
are
in
the
Writ
.
Diversity
.
Acres
than
are
in
the
Writ
,
this
makes
not
the
Writ
erroneous
;
but
in
such
case
Action
on
the
Case
lies
against
the
Sheriff
for
doing
it
;
or
an
Assize
against
him
that
hath
the
possession
delivered
to
him
for
the
Surplusage
of
the
Land
.
But
if
the
Writ
of
Hab.
fac
.
possess
.
to
deliver
possession
to
the
Plaintiff
of
Lands
recovered
by
him
in
Ejectment
,
contains
more
Acres
of
Land
than
were
in
the
Declaration
,
the
Writ
is
erroneous
,
Pract.
Reg.
131
,
132.
Trespass
lies
against
the
Sheriff
,
if
he
does
not
Execution
must
be
done
in
the
right
places
.
execute
on
the
right
places
,
1
Keb.
278.
Lufton's
Case
.
If
a
man
bring
Ejectione
firmae
of
40
Acres
of
Land
and
recovers
30
,
and
not
the
residue
;
upon
the
Writ
of
Execution
the
Sheriff
may
deliver
to
him
any
,
(
viz.
)
three
or
more
in
the
Name
of
all
,
without
setting
out
the
Land
recovered
Where
possession
of
some
in
the
Name
of
all
,
good
or
not
.
by
Metes
and
Bounds
,
altho'
the
Plaintiff
had
not
recovered
all
the
Acres
whereof
he
had
brought
this
Action
,
and
whereof
he
had
supposed
the
Defendant
Tenant
.
But
if
a
man
be
to
be
put
in
possession
of
divers
Messuages
upon
a
Writ
of
Execution
,
and
the
Houses
are
in
possession
of
several
men
,
he
ought
to
go
to
every
House
particularly
,
and
to
deliver
Seisin
of
it
,
and
the
delivery
of
Seisin
of
one
in
the
name
of
all
is
not
sufficient
;
for
he
ought
to
deliver
plenariam
Seisinam
,
Trin.
15
Jac.
Floyd
and
Bethell's
Case
.
In
Formedon
on
Non-tenure
of
three
Messuages
In
what
Case
the
Plaintiff
is
to
shew
to
the
Sheriff
what
part
the
Jury
intended
.
the
Jury
found
he
was
Tenant
of
one
of
the
Messuages
,
and
not
of
the
other
;
the
Plaintiff
may
have
Judgment
,
and
a
Writ
to
the
Sheriff
to
deliver
Seisin
:
And
the
Plaintiff
at
his
peril
is
to
shew
to
the
Sheriff
what
Messuage
it
was
the
Jury
did
intend
;
for
the
Jury
is
not
tyed
to
set
Bounds
to
it
,
Cro.
Eliz.
256.
Scriven
and
Prince
.
If
a
Writ
of
Execution
goes
to
the
Sheriff
,
to
Acres
that
are
to
be
delivered
,
must
be
according
to
the
Usage
of
the
Country
.
Of
Rent
or
Common
.
Seisin
of
Rent
or
Common
by
Parol
.
put
a
man
in
possession
of
20
Acres
of
Land
,
the
Sheriff
ought
to
give
him
20
Acres
in
quantity
,
according
to
the
Usage
of
the
Country
where
it
lies
,
and
not
according
to
the
Statute
,
Floyd
and
Bethel
.
If
a
man
recover
Rent
or
Common
,
upon
which
a
Writ
issues
to
the
Sheriff
to
put
him
in
possession
,
and
the
Sheriff
comes
upon
the
Land
,
and
delivers
to
him
seisin
of
the
Rent
or
Common
by
Parol
,
that
is
well
made
,
and
the
Recoveror
is
in
actual
possession
of
this
,
22
Assize
84.
If
the
Under-Sheriff
delivers
Possession
riotously
Riotous
possession
by
Under-sheriff
,
Attorney
in
C.
B.
not
to
be
enquired
of
by
B.
R.
without
Information
.
on
Extent
on
a
Statute
Merchant
,
and
the
Sheriff
refuseth
to
Retorn
any
Jury
to
enquire
of
the
Force
,
and
he
was
an
Attorney
of
the
Common-Pleas
,
the
Court
of
Kings-Bench
,
unless
the
Cause
were
depending
,
cannot
take
notice
of
the
Offence
without
an
Information
,
2
Keb.
541.
Morgatroyd
versus
Peebles
,
Vid.
Mo.
781
,
&
462.
Where
shall
be
a
New
Execution
or
not
,
and
of
the
Sheriffs
Retorn
on
this
Writ
.
ThemRecoveror
is
put
in
possession
by
Habere
fac
.
possessionem
,
and
the
Defendant
ousts
him
again
;
What
remedy
?
In
2
Brownl
.
p.
216.
Stile's
Case
in
B.
R.
by
After
Possession
and
Ouster
what
remedy
.
New
Execution
.
Retorn
.
Williams
,
he
cannot
have
a
New
Writ
of
Execution
,
but
is
put
to
his
New
Action
,
and
the
filing
of
the
Writ
is
not
material
;
for
it
is
within
the
Election
of
the
Sheriff
,
whether
he
will
file
or
retorn
it
,
or
not
.
But
if
the
Execution
had
not
been
fully
made
,
as
in
the
Execution
of
an
House
,
some
hid
themselves
in
the
upper
Rooms
,
and
when
the
Sheriff
was
gone
they
came
down
and
ousted
those
that
the
Sheriff
had
put
in
possession
before
;
in
such
a
Case
a
New
Writ
of
Execution
was
awarded
.
By
the
Chief
Justice
,
In
this
Case
of
Re-entry
the
Court
may
award
an
Attachment
against
him
,
for
Contempt
against
the
Court.
But
in
Peirson
and
Taverner's
Case
,
the
Recoveror
is
put
in
possession
by
Hab.
fac
.
possess
.
and
the
Defendant
ousts
him
again
;
if
the
Writ
be
not
Retorned
,
the
Plaintiff
shall
have
a
New
Retorn
.
Hab.
fac
.
possess
.
1
Roll.
Rep.
353.
And
if
Hab.
fac
.
seisinam
be
executed
,
it
is
good
without
Retorn
;
yet
the
Court
may
command
the
Sheriff
to
Retorn
it
,
1
Roll.
Rep.
77.
On
Habere
fac.
(
seisinam
)
the
Sheriff
cannot
Retorn
,
That
another
is
Tenant
of
the
Land
by
Right
,
for
that
cannot
come
in
Issue
between
the
Demandant
and
him
,
and
therefore
he
ought
to
execute
the
Writ
,
6
Rep.
52.
Boswell's
Case
.
Upon
Habere
fac
.
possess
.
the
Sheriff
retorned
,
Retorn
.
That
in
the
execution
of
the
said
Writ
he
came
to
the
House
recovered
,
and
removed
out
all
the
persons
he
could
find
,
and
delivered
to
the
Plaintiff
possession
and
departed
;
and
soon
after
Three
persons
secretly
Lodged
in
the
House
expelled
the
Plaintiff
:
On
Notice
whereof
he
returned
again
to
the
House
to
put
the
Plaintiff
in
full
possession
;
but
the
others
resisted
him
,
so
that
without
peril
of
his
Life
he
could
not
do
it
,
1
Leon.
pag.
145.
Upton
and
Wells
.
On
this
Retorn
the
Court
awarded
a
New
New
Hab.
fac
.
possess
.
Execution
.
A
Writ
of
Habere
fac
.
possess
.
was
directed
to
the
Sheriff
;
a
Writ
of
Error
was
brought
,
and
a
Supersedeas
granted
,
directed
to
the
Sheriff
to
stay
Execution
:
And
the
Supersedeas
was
shewed
to
the
Sheriff
as
he
was
going
to
do
Execution
;
yet
he
refused
to
obey
Execution
by
the
Sheriff
after
a
Supersedeas
.
it
,
and
did
Execution
notwithstanding
.
This
is
a
great
Contempt
in
the
Sheriff
,
and
the
Court
ordered
a
Writ
of
Restitution
to
be
granted
,
2
Bulstr.
194.
Thomas
and
Owen
.
Retorn
of
Habere
fac'
possessionem
.
VIrtute
istius
brevis
mihi
direct'
Justiciariis
infrascript'
Habere
feci
(
quod
tali
die
&
anno
infrascript'
)
Habere
feci
A.
G.
plenam
seisinam
de
un'
Messuag'
cum
pertin'
in
S.
infra-specific'
in
omnibus
prout
istud
breve
exigit
&
requirit
.
Note
,
The
Sheriff
in
Cases
where
Land
is
revered
,
is
to
put
the
party
in
possession
and
seisin
by
a
Twig
,
Clod
,
&c.
of
an
House
by
the
Key
,
&c.
of
Rent
by
Corn
or
Grass
,
growing
on
the
Land
,
out
of
which
the
Rent
Issues
.
6.
Rep
52.
It
is
no
good
Retorn
,
that
another
is
Tenant
of
the
Land
by
right
,
or
that
he
has
nothing
in
the
Land
.
Seisin
of
the
Land
in
one
Vill
in
the
name
of
all
the
Lands
in
3
Vills
;
is
good
.
Retorn
of
Habere
fac
possessionem
.
Wirtute
istius
brevis
mihi
direct
.
24
die
Maij
Annot.
infrascript
.
habere
feci
infra
nominat
▪
H.
H.
possessionem
termini
sui
infrascript
.
de
t●n●m●ntis
infrascript
.
cum
pertin
.
prout
interius
mihi
praecipitur
.
Dalt
.
c.
63.
Infra
nominat
.
R.
B.
Miles
nulla
habet
bona
so●●
catalla
terrat
aut
tenementa
in
balliva
mea
unde
denar
.
infraspec
.
Fieri
facere
possum
prout
Interius
mihi
praecipiter
.
Of
Supersedeas
.
If
the
Roll
be
marked
for
a
Writ
of
Error
What
a
mounts
to
a
Supersed
.
before
Execution
done
,
the
Sheriff
shall
be
excused
for
doing
it
before
a
Supersedeas
delivered
,
but
this
is
sufficient
to
supersede
the
Execution
.
Where
Writ
of
Error
is
a
Supersedeas
or
not
,
and
when
.
1
Keb.
12.
If
a
Writ
of
Error
be
brought
,
and
shewed
to
the
Attorney
,
if
Execution
proceed
,
a
Supersedeas
quia
erronice
may
go
.
But
in
Noel's
Case
.
2
Keb.
p.
33.
Error
brought
and
shewed
to
the
Attorney
,
is
no
good
Supersedeas
,
till
it
be
shewed
to
the
Clerk
of
the
Errors
.
Till
the
Roll
Marked
,
or
the
Writ
delivered
unto
the
Officer
in
Court
,
Writ
of
Error
is
no
Supersedeas
,
especially
after
the
Retorn
of
it
.
3
Keb.
171.
The
party
ought
to
take
notice
of
a
Recipitur
upon
the
Record
if
it
be
Entred
,
and
if
the
party
take
not
out
Execution
after
the
Writ
of
Error
allowed
,
it
is
a
Contempt
,
else
not
;
and
the
Attorney
is
not
bound
to
view
the
Record
,
if
a
Writ
of
Error
be
brought
,
but
may
take
out
Execution
,
if
there
he
not
a
Supersedeas
,
or
notice
given
to
the
party
.
Stiles
Rep.
105.
Winn
and
S●●bbins
.
'
Its
the
duty
of
the
Clerk
of
the
Errors
to
mark
the
Roll
and
not
the
Attorny
.
Stiles
Rep.
159.
Mercer
and
Rule
.
A
Writ
of
Error
is
duly
persued
,
tho
the
Roll
be
not
marked
and
if
neither
the
Roll
be
marked
nor
notice
given
to
the
Attorney
of
the
other
side
of
the
bringing
the
Writ
of
Error
,
if
the
party
proceed
to
take
out
Execution
it
is
no
Contempt
to
the
Court.
Marking
the
Roll
,
paying
Fees
for
,
or
allowance
Where
and
when
a
Writ
of
Error
is
a
Supersed
.
or
not
.
by
the
Chief
Justice
of
a
Writ
of
Error
is
no
Supersedeas
,
unless
actually
taken
out
before
Execution
,
per
Touisden
.
Error
brought
and
shewed
to
the
Attorney
,
is
no
Supersedeas
until
it
be
shewed
to
the
Clerk
of
the
Errors
,
which
is
an
Allowance
in
Court
,
and
therefore
if
Execution
be
done
before
it
be
allowed
by
the
Judge
,
or
shewed
to
the
Clerk
of
the
Errors
,
it
is
well
done
,
because
the
Attorney
otherwise
would
never
have
it
allowed
,
but
only
shewed
to
the
Attorney
of
the
other
side
;
but
if
he
shew
it
,
and
declare
his
Intention
to
have
it
speedily
allowed
,
there
Execution
is
superseded
in
the
mean
time
,
but
yet
if
Bayl
be
not
given
according
to
the
Statute
,
the
Execution
may
be
well
done
,
which
the
Court
agreed
.
1
Keb.
33.
Noel's
Case
.
Formerly
(
per
Hales
)
,
if
Execution
were
gone
out
before
a
Writ
of
Error
delivered
,
or
shewed
to
the
party
,
it
was
not
to
be
a
Supersedeas
,
and
by
him
it
shall
not
be
a
Supersedeas
,
unless
shewed
to
the
pary
,
and
must
not
foreclose
his
time
in
having
it
allowed
,
for
if
it
be
not
allowed
by
the
Court
within
four
days
it
is
no
Supersedeas
,
and
a
Writ
of
Error
taken
out
,
if
it
be
not
shewed
to
the
Clerk
of
the
other
side
and
allowed
by
the
Court
,
it
is
no
Supersedeas
to
the
Execution
.
Mod.
Rep.
112.
The
Sheriff
makes
his
Warrant
to
a
Bayliff
to
Time
of
the
delivery
of
the
Supersed
.
take
the
Body
of
&c.
Upon
a
Ca.
Sa.
and
before
the
Warrant
executed
,
the
Sheriff
receives
a
Supersedeas
,
and
the
Bayliff
having
no
notice
proceeds
;
yet
the
Arrest
is
not
lawful
,
but
the
Bayliff
is
excusable
in
Tresspass
.
Moor
p.
677.
Prince
and
Allington
.
One
purchaseth
a
Supersedeas
,
and
doth
not
deliver
it
to
the
Sheriff
till
after
the
fourth
County
day
,
and
then
he
is
Outla
wed
,
yet
the
Outlawry
Outlawry
is
void
.
Moor.
n.
73.
Ca.
sa
.
was
delivered
to
the
Sheriff
of
E.
at
11
Clock
,
and
a
Warrant
thereupon
made
to
the
Bayliffs
,
4
hours
after
a
Supersedeas
comes
to
the
Sheriff
,
and
a
Warrant
upon
this
Supersedeas
delivered
to
the
Goaler
to
set
the
parties
at
liberty
if
they
were
Prisoners
,
who
upon
it
were
discharged
.
Per.
Cur.
the
Sheriff
hath
done
well
,
being
the
same
day
,
Lit.
Rep.
296.
Porter
and
Corbet
.
Fi.
Fac
'
to
the
Sheriff
to
Levy
the
Debt
,
and
the
Defendant
brought
Error
,
and
had
a
Supersedeas
;
so
much
Mony
as
the
Sheriff
had
received
before
,
shall
go
to
satisfaction
,
and
a
Venditioni
exponas
shall
issue
upon
it
.
Yel
.
p.
6.
Tocock
and
Honyman
.
Supersedeas
,
as
to
Goods
seised
is
a
Supersedeas
Where
a
Supersed
.
shall
stay
the
Sale
of
Goods
or
not
.
as
to
Sale
;
but
if
the
Sheriff
hath
received
the
Mony
he
must
return
it
into
Court
,
3
Keb.
174
Mud
and
Warren
;
and
it
is
not
discharged
by
the
Supersedeas
.
And
the
case
was
,
a
Supersedeas
came
before
Execution
,
but
in
truth
after
Goods
seised
and
before
Goods
sold
,
but
after
the
Sheriff
had
taken
security
for
the
Mony
,
and
discharged
the
Execution
;
Sheriff
returns
that
he
had
received
a
Supersedeas
out
of
Chancery
in
the
nature
of
an
Aud.
Querela
,
It
is
not
good
,
because
the
Record
was
not
there
1
Rol.
Abridg.
383.
Merston
and
Mannory
.
A
Certiorari
delivered
to
the
Justices
of
the
Peace
after
Restitution
awarded
,
and
before
it
be
executed
by
the
Sheriff
,
is
not
a
Supersedeas
to
the
Sheriff
,
unless
the
Justices
make
a
Supersedeas
upon
it
,
which
if
they
do
not
,
they
are
fineable
for
the
Contempt
.
Mo.
Rep.
673.
Note
,
By
the
Stat.
16.
and
17.
Car.
2.
c.
8.
All
stays
of
Execution
by
Supersedeas
on
Writs
of
Error
after
Verdict
,
are
taken
away
;
but
the
other
remains
as
they
did
.
Aud.
Quer.
on
escape
where
it
lies
or
not
,
or
upon
other
Execution
by
the
Sheriff
,
not
well
made
and
delivered
.
Vide
infra
sub
titulo
,
where
the
Escape
of
one
shall
be
a
discharge
of
the
other
,
or
not
.
Audita
Querela
,
is
an
Equitable
Writ
,
and
not
to
be
allowed
without
Equity
.
If
one
in
Execution
escape
of
his
own
wrong
,
he
shall
never
have
Audita
Querela
to
discharge
himself
;
and
the
Goaler
may
retake
him
;
but
if
he
escape
with
the
consent
of
the
Gaoler
the
the
Gaoler
cannot
take
him
again
,
and
if
he
do
,
the
party
shall
have
an
Audita
Querela
.
Cro.
Car.
240.
Robinsons
Case
,
1
Rol.
Abridg.
307.
Trevillian
and
the
Lord
.
Roberts
.
So
if
the
Sheriff
Arrests
one
in
Execution
,
and
doth
not
retorn
the
Writ
,
but
suffers
him
to
escape
,
and
upon
the
alias
Capias
,
he
Arrests
him
again
,
Audita
Querela
lies
.
Mo.
57.
n.
163.
But
where
two
were
bound
joyntly
and
severally
,
one
was
condemned
and
taken
in
Execution
,
after
the
other
was
sued
,
condemned
and
taken
,
the
first
escapes
,
the
other
shall
not
have
Audita
Querela
,
for
there
must
be
satisfaction
in
part
.
5.
Rep.
67.
Blomfields
Case
.
A
word
that
is
surplusage
,
shall
not
avoid
this
Writ
,
as
in
Arundels
Case
:
The
Audita
Querela
comprehended
,
that
M.
had
recovered
against
the
Plaintiff
in
Debt
,
and
that
he
was
taken
by
Cap.
ad
satisfaciend
.
at
the
Suit
of
M.
by
the
Sheriff
of
G.
who
let
him
go
at
Large
,
and
on
Issue
upon
the
voluntary
escape
it
was
found
for
the
Plaintiff
.
And
it
was
moved
,
that
the
Writ
of
Audita
Querela
was
not
good
,
for
the
words
are
,
that
the
Plaintiff
capt.
fuit
virtute
brevis
nostri
judicialis
,
and
this
word
judicialis
is
not
in
the
Register
,
but
only
brevis
nostri
de
Capiendo
,
yet
adjudged
good
.
1
Leon.
73
Arundell
and
Morris
.
Audita
Querela
on
escape
of
the
Testators
Creditor
,
and
recovery
against
the
Marshal
.
Defendant
protestando
,
that
the
Plaintiff
escaped
after
the
Defendant
recovered
against
the
Marshal
,
and
the
Plaintiff
did
not
pay
the
Marshal
,
absque
hoc
that
the
Marshal
satisfied
and
paid
the
Testator
.
This
case
differs
from
all
others
of
escape
by
consent
of
the
Gaoler
,
this
being
not
purely
Debt
which
goes
over
to
Executors
,
but
is
grounded
on
a
Tort
general
by
the
death
of
the
Gaoler
;
the
Court
concluded
,
that
recovery
against
non
payment
to
the
Marshal
,
was
no
discharge
of
the
Plaintiff
in
this
Audita
Querela
.
But
Adjornatur
,
to
take
Issue
on
payment
by
the
Marshal
to
the
Creditor
,
viz.
the
Defendants
Testator
3
Keb.
763.
Gardner
and
Sedgwick
.
One
was
Outlawed
in
Debt
,
and
taken
upon
Outlawry
Pleaded
to
Audita
Querela
where
't
is
good
,
or
not
the
Capias
and
committed
to
the
Fleet
,
and
the
Warden
suffered
him
to
go
at
Large
voluntarily
,
and
after
the
Executor
of
the
Plaintiff
in
Debt
,
takes
him
in
Execution
again
upon
a
new
Writ
,
and
upon
this
he
brought
Audita
Querela
,
and
shews
this
matter
,
and
Outlawry
in
the
Plaintiff
in
the
Audita
Querela
was
pleaded
,
Per
Cur.
it
is
a
good
Plea
,
because
this
Writ
is
not
directly
to
Reverse
the
Outlawry
(
as
Error
is
)
but
is
founded
upon
a
Tort
(
scil.
)
upon
the
Escape
,
and
not
upon
the
Record
only
,
aliter
in
Error
or
Attaind
.
Outlawry
is
no
Plea
;
nor
is
there
any
difference
as
to
this
Case
,
where
the
Outlawry
is
at
the
Suit
of
the
Defendant
or
of
a
Stranger
.
Vid.
other
good
reasons
Sider
.
43.
Jason
,
and
Kete
.
If
upon
Elegit
,
the
Sheriff
takes
an
Inquisition
,
and
there
are
found
several
Lands
subject
to
the
extent
,
and
found
of
the
several
values
;
and
the
Sheriff
Retorns
he
had
delivered
some
of
the
said
Lands
in
Particular
for
the
Moieties
,
where
it
appears
,
that
according
to
the
values
found
an
equal
Moieties
is
not
delivered
to
the
party
who
recovers
,
but
more
than
a
Moiety
;
this
is
not
void
,
neither
is
it
a
Disseisin
by
the
Entry
,
but
only
voydable
by
an
Audita
Querela
.
Tr.
15.
Car.
1.
B.
R.
Rowe
and
Weeks
.
If
A.
recover
against
B.
Debt
or
Damages
,
and
Elegit
is
granted
to
the
Sheriff
to
extend
the
Moiety
of
his
Land
,
which
is
ancient
Demesns
,
altho
it
be
admitted
,
that
this
is
not
extendible
,
yet
B.
may
not
avoid
this
by
Entry
,
without
Audita
Querela
,
because
the
Sheriff
had
a
Warrant
to
deliver
the
Moiety
of
half
his
Land
,
and
this
was
his
Land
,
Ergo
not
void
.
Hob.
p.
Cox
and
Barnaby
.
CAP.
XIX
.
Of
Elegits
,
and
the
Sheriffs
Duty
therein
,
and
of
the
Retorns
thereof
.
The
difference
of
it
,
as
to
Lands
and
Goods
,
how
to
be
managed
by
the
Sheriff
that
it
may
be
well
executed
,
and
what
thing
may
be
executed
or
not
.
Of
the
Inquisition
,
Retorns
of
Elegit
,
how
to
be
made
.
Where
a
new
Elegit
shall
be
had
or
not
.
Of
extent
by
the
Bayliff
of
a
Liberty
.
The
Sheriffs
Office
about
Execution
for
the
Kings
Debt
;
of
Stat.
Merchant
,
Staple
,
Recognizance
:
The
difference
of
the
Retorns
.
Retorns
of
Scire
fac
.
the
Sheriffs
demeaner
as
to
Outlaries
,
and
Capias
Utlagatum
,
and
the
Retorns
Of
Elegits
,
&c.
ELegit
is
a
Judicial
Writ
given
by
the
Stat.
The
nature
of
an
Elegit
,
as
to
Lands
or
goods
.
W.
2.
c.
18.
either
upon
a
Recovery
for
Debt
or
Damage
,
or
upon
a
Recognizance
in
any
Court.
By
this
Writ
the
Sheriff
shall
deliver
to
the
Plaintiff
,
omnia
catalla
debitoris
(
exceptis
bobus
&
afri●
Carucae
)
medietaten
terrarum
,
and
this
must
be
done
by
Inquest
taken
by
the
Sheriff
,
for
the
valuation
of
the
Goods
,
and
Lands
ought
tobe
first
found
by
the
Inquisition
of
a
Jury
.
W.
2.
c.
18.
gives
the
Elegit
,
so
that
in
Elegit
the
Sheriff
may
take
in
Execution
the
Moiety
of
the
Lands
of
the
Conizor
,
&c.
and
all
his
Goods
and
Chattels
,
(
except
as
aforesaid
)
and
was
to
deliver
them
to
the
Conisee
,
or
he
who
recovers
upon
a
reasonable
extent
or
price
,
until
the
Deb●
be
satisfied
,
and
the
Sheriff
shall
deliver
him
the
Seisin
of
the
Land
,
and
he
is
called
Tenant
by
Elegit
,
and
shall
do
no
Waste
.
4
Rep.
47.
The
Elegit
as
to
Goods
,
is
in
effect
but
a
Fieri
fac
.
and
therefore
if
there
be
no
Lands
,
and
Execution
be
upon
Goods
,
and
they
are
not
sufficient
,
he
may
have
a
Capias
;
aliter
if
Lands
be
extended
.
If
one
prays
to
have
Elegit
,
and
the
Sheriff
Retorns
he
has
no
Lands
,
and
he
prayed
a
Capias
,
but
the
Court
granted
it
not
;
the
cause
is
,
the
Entry
in
the
Roll
is
,
that
he
hath
chosen
the
Execution
of
the
Moiety
of
the
Lands
which
he
must
stand
to
,
30.
Ed.
3.
But
the
Law
now
is
not
so
,
for
if
the
Sheriff
return
Nihil
,
the
party
may
have
a
Capias
,
Hob.
57.
Elegit
,
how
to
be
managed
by
the
Sheriff
,
that
so
it
may
be
well
Extended
,
and
what
things
may
be
executed
or
not
.
As
to
what
things
may
be
extended
or
not
,
you
must
know
.
All
the
Goods
and
Chattels
,
in
which
are
included
Leases
for
Years
.
Leases
for
Years
,
shall
be
extended
,
(
except
Oxen
and
Beasts
of
the
Plow
)
the
Moiety
of
the
Lands
.
Vid.
infra
,
how
it
shall
be
done
.
A
Rent
seck
,
where
there
is
not
any
Reversion
A
rent
seck
.
cannot
be
delivered
ut
liberum
Tenementum
.
Cro.
Eliz.
656.
Walshal
and
Heath
.
Annuity
Certain
is
extendible
by
Elegit
.
Cro.
Annuity
.
Jac.
78.
York
and
Twine
.
Lands
in
Ancient
Demsne
may
be
delivered
Aunc
.
demesne
.
in
Execution
by
the
Sheriff
by
force
of
an
Eelegit
out
of
the
Kings
Court
,
for
the
Land
it self
was
never
put
in
plea
directly
in
the
Kings
Court
.
Vid.
the
Million
Act.
5.
Rep.
Aldens
Case
,
Hob.
47.
Cox
and
Barneby
.
If
the
Lands
descend
to
an
Infant
,
the
Sheriff
shall
cease
to
extend
.
As
to
the
Inquisition
,
Note
,
If
the
Inquisition
in
Elegit
be
void
in
Inquisition
void
in
any
part
,
void
in
the
whole
.
any
part
,
its
void
in
the
whole
,
and
the
whole
must
be
quasht
;
and
not
quoad
that
only
;
so
if
more
than
a
Moiety
be
delivered
on
the
Elegit
,
it
is
void
for
the
whole
,
2
Keb.
582.
Harris's
Case
,
Siderfin
p.
91.
Berry
and
Wheeler
.
It
was
moved
in
the
said
Case
of
Harris
to
quash
an
Inquisition
of
Elegit
upon
Judgment
in
B.
R.
because
it
appears
not
in
what
County
the
Lands
extended
were
;
but
Monmouth
being
in
the
Margent
,
and
directed
to
the
Sheriff
there
,
and
the
Retorn
made
by
him
,
it
shall
be
intended
in
Monmouth
,
2
Keb.
582.
Upon
a
Writ
of
Extendi
facias
upon
a
Statute
,
The
Jury
cannot
alter
a
Verdict
in
substance
.
if
the
Sheriff
Impannel
a
Jury
,
and
they
deliver
the
Verdict
to
the
Sheriff
in
Writing
,
they
may
after
make
it
more
formal
,
but
cannot
alter
it
in
substance
;
for
it
is
a
compleat
Verdict
by
delivery
of
it
to
the
Sheriff
,
2
Roll.
Abridgm
.
712.
D'albie's
Case
.
Elegit
recites
the
Judgment
,
quod
Elegit
executionem
Elegit
vitious
upon
Omission
.
of
the
moiety
of
the
Goods
,
and
of
the
Lands
;
and
the
Writ
was
,
Ideo
tibi
praecipimus
quod
bona
&
catalla
of
the
Defendants
,
quae
habuit
die
judicii
praedicti
redditi
deliberari
fac'
,
omitting
these
words
,
&
medietatem
terrarum
&
tenementorum
praedict'
tenend
'
the
said
Goods
and
moiety
of
the
Lands
;
Quousque
debitum
levetur
,
by
virtue
whereof
the
Sheriff
delivered
the
Moiety
in
Execution
.
Per.
Cur
'
This
shall
not
be
amended
,
and
he
ought
to
Amendment
.
have
a
new
Elegit
;
because
the
Inquisition
was
taken
without
Warrant
,
the
Sheriff
New
Elegit
.
having
no
Warrant
to
extend
those
Lands
,
Cro.
Car.
162.
Walsall
and
Riches
.
Two
Inquisitions
taken
at
several
days
by
Two
Inquisitions
no
one
Stat.
Merchant
.
several
Juries
upon
one
Statute-Merchant
,
were
adjudged
naught
;
one
was
taken
of
the
Land
,
and
the
other
for
the
Lands
and
Goods
,
1
Brownl.
38.
Lessee
had
a
Lease
of
the
value
of
100
l.
and
The
Sheriff
not
to
deliver
the
Lease
at
another
.
value
,
than
the
Jury
find
it
.
after
the
Teste
of
the
Elegit
,
and
before
the
Sheriff
had
executed
the
Elegit
,
assigns
his
Term
to
one
,
who
assigns
it
over
to
the
Plaintiff
in
the
Scire
fac
'
;
and
afterwards
the
Sheriff
executes
the
Elegit
,
and
delivers
the
Lease
to
the
Plaintiff
,
Tenend'
,
&c.
for
the
satisfaction
of
the
Debt
,
which
came
but
to
43
l.
6
s.
8
d.
Per
Cur.
The
Sheriff
could
not
deliver
the
Lease
at
another
value
than
what
the
Jury
had
found
it
at
.
And
the
Sale
made
by
the
Sheriff
is
as
strong
as
if
Sale
by
the
Sheriff
,
as
strong
as
in
open
Market
.
it
had
been
made
in
open
Market
,
and
all
the
Goods
and
Chattels
are
bound
after
the
Teste
of
the
Elegit
,
and
cannot
be
sold
by
the
Owner
after
,
1
Brownlow
38.
Connyers
and
Brandling
.
Upon
Elegit
there
needs
no
Liberate
.
Aliter
upon
a
Statute
,
March
.
117.
In
every
Elegit
the
Sheriff
must
Retorn
and
The
Sheriff
to
set
the
moieties
distinctly
.
set
out
the
Moieties
distinctly
,
unless
they
be
Tenants
in
Common
;
and
in
that
case
he
must
Retorn
the
special
Matter
,
1
Brownl.
38.
On
Inquisition
of
a
Lease
which
is
but
a
Sale
,
or
extent
of
a
Lease
,
and
the
diversity
On
the
2d
Elegit
,
the
Sheriff
can
only
deliver
a
moiety
of
the
moiety
l●ft
.
Chattel
,
the
Sheriff
may
sell
it
as
Goods
;
but
if
he
extends
it
,
there
shall
be
no
other
benefit
than
as
of
a
Common
Extent
,
Id.
ib.
Two
persons
Recovered
severally
against
one
in
Debt
:
He
who
had
the
first
Judgment
sued
first
an
Elegit
,
and
had
the
Moiety
of
the
Land
delivered
in
Execution
;
after
the
other
sued
the
Elegit
,
and
the
Sheriff
prayed
the
Advice
of
the
Court
.
Per
Cur.
He
shall
deliver
but
the
Moiety
of
that
Moiety
which
he
had
at
the
time
of
the
Writ
awarded
,
Cro.
Eliz.
482.
Huitt
and
Cogan
.
S.
H.
acknowledged
two
Judgments
in
Debt
Two
Elegits
and
the
whol●
Land
extended
by
them
.
to
A.
upon
Bond
,
and
was
bound
to
F.
in
a
Bond
bearing
date
before
the
Judgments
.
F.
assigns
his
Debt
to
the
King
.
A.
takes
out
Execution
upon
his
Judgments
,
viz.
two
Elegits
;
by
one
he
has
one
Moiety
of
H's
Lands
,
by
the
other
the
other
Moiety
:
Then
Process
issued
out
of
the
Exchequer
,
for
the
Debt
assigned
to
the
King
.
Per
Cur.
It
was
Resolved
,
1.
This
Subjects
Title
is
prior
to
the
Kings
,
and
the
King
is
bound
by
the
Statute
of
33
H.
8.
2.
Pasch.
13
Jac.
B.
C.
Rot.
121.
Crook's
Case
,
Adjudged
.
The
two
Extents
are
well
executed
;
because
both
Judgments
are
in
one
and
the
same
Term
,
and
no
priority
between
them
,
Hardr.
p.
23.
Attorney
General
versus
Andrews
.
Actual
possession
ought
not
to
be
delivered
on
Actual
possession
not
to
be
delivered
on
Elegit
,
only
to
enable
an
Ejectment
.
Elegit
,
the
Sheriff
ought
only
to
deliver
Seizure
to
enable
the
Plaintiff
to
maintain
an
Ejectment
,
and
the
Tenant
may
plead
on
the
Ejectment
,
else
the
Tenant
would
be
turned
out
unheard
and
be
remediless
;
yet
if
Actual
possession
be
delivered
it
is
remediless
,
3
Keb.
243.
Jefferson
and
Dawson
.
In
Elegit
the
Sheriff
ought
to
deliver
the
The
moiety
to
be
delivered
by
Metes
and
Bounds
Moiety
by
Metes
and
Bounds
,
Hutton
p.
16.
If
the
Land
be
first
Executed
upon
a
Statute
,
and
afterwards
an
Elegit
upon
a
Judgment
obtained
before
the
acknowledging
of
the
Statute
come
also
to
the
Sheriff
,
the
Moiety
of
the
Land
extended
shall
be
delivered
to
the
Plaintiff
upon
the
Judgment
,
1
Brownl
.
38.
Freeman's
Case
.
The
Retorn
,
how
to
be
made
.
Vid.
tit
.
What
Writs
need
not
be
retorned
,
4
Rep.
65.
If
a
man
sue
an
Elegit
upon
a
Recovery
,
and
Ca.
sa
.
after
an
Elegit
.
the
Sheriff
Retorn
,
That
he
made
partition
of
the
Lands
of
the
Defendant
by
12
Jurors
;
but
he
could
not
deliver
the
Moiety
to
the
parties
according
to
the
Writ
;
because
all
the
Land
was
extended
to
another
upon
a
Statute
.
He
may
after
have
a
Ca.
sa
.
for
this
Retorn
is
all
one
with
a
Nihil
Retorned
,
Mich.
31
&
32
El.
Palmer
and
Knowles
.
If
one
pray
an
Elegit
,
and
this
entred
on
Record
in
Banco
,
and
takes
out
the
Writ
;
and
before
the
Retorn
of
it
the
Record
is
removed
into
the
Kings-Bench
,
where
the
Judgment
is
affirmed
within
the
year
,
and
after
it
is
affirmed
to
the
Court
,
that
the
Sheriff
had
Retorned
his
Writ
in
Banco
;
yet
the
Plaintiff
may
have
a
Capias
,
for
that
this
Allegation
doth
not
appear
to
the
Court
,
and
now
its
impossible
it
can
be
Retorned
here
,
and
so
its
stronger
than
if
a
Nihil
had
been
Retorned
,
trin.
15
Jac.
B.
R.
Andrews
and
Cope
.
Upon
Elegit
the
Sheriff
ought
to
Retorn
the
Extent
,
and
also
that
he
hath
delivered
the
Lands
.
Elegit
need
not
to
be
Retorned
.
Therefore
if
the
Sheriff
by
force
of
an
Elegit
delivers
to
the
party
the
Moiety
of
the
Lands
of
the
Defendant
,
and
does
not
Retorn
the
Writ
;
if
now
the
Plaintiff
will
bring
Action
of
Debt
de
novo
,
the
Defendant
may
plead
in
Bar
the
Execution
aforesaid
,
tho'
the
Writ
of
Execution
was
not
Retorned
,
Earl
of
Leicester's
Case
,
1
Leon.
p.
280.
Penruddock
and
Newman
.
The
Sheriff
Retorns
upon
Elegit
,
That
the
Extent
by
the
Bayliff
of
a
Liberty
.
party
had
not
any
Lands
,
but
only
within
the
Liberty
of
St.
Edmondsbury
,
and
that
J.
S.
Bayliff
there
hath
the
Execution
and
Retorn
of
all
Writs
,
who
enquired
and
retorned
an
Extent
by
Inquisition
,
and
that
the
Bayliff
delivered
the
Moiety
to
the
party
,
and
the
Plaintiff
by
virtue
of
that
Extent
entred
.
Per
Cur.
1.
The
Bayliff
may
make
such
Inquisition
by
Warrant
from
the
Sheriff
.
2.
When
a
Jury
by
the
Inquisition
find
the
seisin
and
value
of
the
Land
,
the
Jury
shall
extend
all
the
Land
;
and
the
Bayliff
in
a
Franchise
,
The
Sheriff
to
deliver
the
moieties
,
and
not
the
Jury
.
and
the
Sheriff
where
there
is
none
,
shall
deliver
the
Moieties
,
and
not
the
Jury
,
Cro.
Car.
317.
Sparrow
and
Mattersoch
.
On
an
Elegit
,
averring
no
Goods
were
seised
,
it
hath
been
held
no
Scire
facias
lieth
;
but
upon
a
Fieri
fac
.
bare
seizure
is
an
Execution
,
2
Keb.
789
,
821.
Smith
and
Mildmay
.
It
was
found
by
Inquisition
on
Elegit
,
that
the
Retorn
,
where
there
are
other
Lands
not
to
be
in
severalty
.
Defendant
was
seised
of
the
Moiety
of
a
Messuage
and
Lands
for
Life
,
and
other
Lands
in
the
Right
of
his
Wife
;
the
Sheriff
Retorns
,
Quod
virtute
brevis
,
&c.
deliberari
feci
medietatem
omnium
praemissorum
,
videiicet
,
medietatem
medietatis
unius
messuagiis
necnon
duo
pomar'
necnon
unum
clausum
.
The
Elegit
was
filed
;
the
Retorn
is
not
good
,
the
Sheriff
ought
to
have
delivered
to
him
the
moiety
of
the
moiety
of
the
Lands
joyntly
,
so
that
the
Tenant
by
Elegit
may
be
Tenant
in
Common
of
a
fourth
part
with
the
Joyntenants
:
But
by
this
delivery
in
Severalty
he
had
in
effect
but
the
8th
part
;
for
the
other
Joyntenant
may
occupy
the
Land
delivered
with
him
in
Common
;
if
it
had
been
duorum
pomariorum
it
had
been
good
.
And
he
cannot
have
a
New
Elegit
properly
;
but
the
Plaintiff
shall
New
Elegit
.
make
a
surmize
that
the
Sheriff
malè
suggessit
in
the
Execution
of
the
Elegit
,
and
then
he
shall
have
a
New
one
at
his
peril
,
Latch
.
Rep.
77.
Score
and
Kendale
.
An
Extent
upon
a
Statute-Merchant
.
The
Conisor
keeps
the
possession
of
the
House
.
Plaintiff
put
the
Conisee
in
possession
of
parcel
of
an
House
and
Lands
,
and
suffered
the
Conisor
to
continue
in
the
rest
of
the
House
,
by
reason
whereof
the
Conisor
kept
the
possession
of
the
whole
and
held
the
Conisee
out
.
The
Conisee
,
to
the
intent
he
might
have
a
full
and
perfect
possession
of
the
Whole
,
caused
the
Sheriff
that
he
did
not
Retorn
the
Writ
of
Extent
,
on
which
it
is
entred
on
the
Roll
,
Quod
Vicecomes
nihil
inde
fecit
nec
misit
breve
;
an
Alias
An
Alias
extendi
fac
'
,
where
it
may
be
,
or
not
.
breve
extendi
facias
may
well
be
awarded
.
And
the
Sheriff
cannot
Retorn
,
that
the
Land
was
formerly
extended
by
the
Old
Sheriff
;
because
by
the
Entry
upon
the
Roll
it
appears
that
no
Entry
of
Retorn
on
the
Roll.
Execution
was
done
;
but
if
the
Entry
be
not
,
the
same
is
an
Execution
for
the
party
,
tho'
it
be
not
Retorned
,
2
Leon.
12.
n.
20.
Coleshill
and
Hastings
.
It
was
said
in
1
Keb.
91.
That
after
one
Elegit
New
Elegit
without
Continuances
.
Retorned
,
they
cannot
have
another
Elegit
without
Continuances
.
But
per
Cur.
the
Course
is
not
to
make
Continuances
in
the
Roll
,
but
awards
severally
.
And
per
Cur.
if
Nihil
be
Retorned
he
may
have
a
New
Elegit
;
but
if
an
Acre
be
Retorned
,
he
can
have
no
other
.
The
Form
of
the
Retorn
of
an
Elegit
with
Inquisition
,
taken
,
2
Sand.
244.
Sheriff
takes
Inquisition
upon
Elegit
,
the
Plaintiff
may
enter
immediately
before
the
Retorn
of
it
,
1
Rolls
Abr.
738.
Lister
and
Bromley
.
Presidents
.
Retorn
of
Elegit
with
Inquisition
taken
on
it
,
vid.
2
Sand.
68.
The
Sheriff
Retorns
Nihil
as
to
Goods
and
Chattels
on
the
first
Elegit
;
yet
on
the
second
Elegit
a
Lease
for
years
was
taken
in
Execution
,
tho'
the
Suggestion
for
the
second
Writ
was
of
Lands
,
and
nothing
of
Chattels
,
Mo.
341.
Hunger
and
Fry
.
The
Form
of
the
Retorn
of
Elegit
,
Dalt.
231
,
232.
Upon
Elegit
the
Sheriff
Retorned
,
That
he
Retorn
must
be
on
an
Inquisition
.
had
delivered
to
the
Plaintiff
Goods
and
Chattels
of
the
Defendants
ad
valentiam
20
l.
per
rationabile
pretium
,
and
shewed
what
the
Goods
were
in
certain
;
and
also
that
he
had
delivered
20
Acres
of
Land
of
the
Defendants
,
quae
est
medietas
omnium
terrarum
per
rationabile
extentum
;
but
Retorned
no
Inquisition
,
scil.
per
Sacramentum
12.
&c.
Per
Cur'
,
There
ought
to
be
Inquisition
,
and
the
Sheriff
himself
cannot
extend
it
,
Dyer
100.
Plaintiff
declares
,
where
the
Defendant
had
In
Consideration
he
would
prosecute
a
New
Elegit
,
a
Promise
to
procure
the
Goods
to
be
sound
is
not
good
seised
Goods
of
I.
S.
by
vertue
of
an
Elegit
,
sued
by
the
Plaintiffs
and
delivered
to
the
Defendant
,
being
Deputy
Sheriff
,
he
in
consideration
,
that
the
Plaintiff
at
the
request
of
the
Defendant
,
would
prosecute
another
Elegit
,
and
deliver
to
the
Defendant
,
and
Authorize
,
some
person
to
receive
the
Goods
,
promiseth
to
procure
the
Goods
to
be
found
by
the
Inquisition
,
and
to
deliver
the
Goods
to
the
Person
Autorized
.
Per
Cur.
the
P●●mise
is
not
lawful
,
the
seising
of
the
Goods
,
by
the
first
Elegit
was
not
good
,
for
want
of
an
Inquisition
:
And
it
differs
from
a
Fieri
fac
.
so
that
the
Defendant
is
a
Trespassor
ab
initio
,
and
this
promise
is
to
make
good
his
Tort
,
and
the
Sheriff
must
Retorn
a
Jury
indifferently
,
and
this
promise
engageth
him
to
the
contrary
,
and
one
part
of
the
promise
being
unlawful
makes
all
Vicious
.
Sir
Thomas
Jone's
.
Rep.
Morris
and
Chapman
,
Carter
Rep.
A
new
Elegit
,
Issued
upon
Suggestion
,
that
the
Where
shall
be
a
new
Elegit
.
party
had
other
Lands
in
the
same
County
,
for
if
it
appear
that
one
takes
part
of
the
Land
upon
delivery
of
the
Sheriff
and
accepts
it
,
he
cannot
after
take
a
new
Extent
;
and
if
he
does
'
its
wholly
void
,
for
then
the
Record
is
ended
,
and
the
Attornies
of
both
parties
are
out
of
Court
;
but
if
it
is
found
that
he
came
into
Court
,
and
surmised
that
the
party
had
other
Lands
in
the
same
County
,
and
prayed
a
new
Elegit
,
he
shall
have
it
;
for
this
is
intended
the
first
day
of
the
Extent
Retorned
,
and
then
it
is
reason
he
may
wave
it
,
and
pray
a
new
Extent
,
for
he
never
accepted
of
the
first
.
Mo.
341.
Hunger
and
Fry
.
Cro
Eliz.
310.
mesme
Case
.
After
a
full
and
perfect
Execution
had
by
Extent
,
and
Returned
of
Record
,
there
shall
never
be
any
Reextent
upon
any
Eviction
;
but
if
the
Extent
be
insufficient
in
Law
,
there
may
go
out
a
new
Extent
;
as
Elegit
Issued
out
against
G.
Esq
;
who
at
the
time
of
suing
the
Writ
was
Baronet
,
it
was
insufficient
since
the
Stat.
23.
H.
8.
cap.
5.
Co.
Lit.
290
,
&c.
Of
Elegit
,
and
the
Retorn
,
Vid.
Fulwood's
Case
4.
Rep.
Vid.
W.
2.
c.
17.
2
Inst.
39.
Where
Execution
shall
be
awarded
upon
Elegit
,
and
how
the
Sheriff
shall
demean
himself
upon
it
,
and
what
Lands
shall
be
delivered
,
and
the
Retorn
.
If
more
than
a
Moiety
be
delivered
upon
the
Elegit
,
'
its
for
the
whole
,
Siderf
.
p.
91.
Berry
and
Wheeler
.
Of
the
Sheriffs
Extent
of
a
Term
,
vid
tit.
Fi.
fac
.
The
Sheriff
may
Extend
,
or
sell
a
Lease
,
and
How
Delivered
.
this
Sale
shall
bind
the
King
,
because
but
a
Chattel
,
and
no
Covin
in
the
case
,
8.
Rep.
Sir
George
Fleetwoods
Case
.
Judgment
in
Debt
against
a
Joynt-tenant
for
Life
,
who
releaseth
to
the
other
and
dyes
.
The
Plaintiff
sues
Elegit
.
Per.
Cur.
the
release
being
his
own
act
shall
not
discharge
his
Moiety
of
the
Execution
,
for
by
the
Acceptance
of
the
Release
he
has
deprived
himself
of
the
jus
accrescendi
,
7.
Rep.
78.
Lord
Aburgavennies
Case
.
A
Rent
seck
(
where
there
is
not
any
Redisseisin
)
What
shall
be
delivered
.
cannot
be
delivered
,
ut
liberum
tenementum
,
Cro.
Eliz.
p.
656.
Walsal
and
Heath
.
Annuity
certain
is
extendiable
by
Elegit
.
Cro.
Jac.
78.
Yorke
and
Twine
.
Where
the
Sheriff
extends
a
Manner
by
the
name
of
Acres
,
Land
,
Meadow
,
Wood
;
no
Advowson
passeth
,
Owen's
Rep.
p.
4.
Brag
and
Brook
.
In
Elegit
the
Sheriff
ought
to
deliver
the
Moiety
by
Metes
and
Bounds
.
Hutton
.
p.
16.
Upon
recovery
in
C.
B.
against
G.
The
Plaintiff
prays
Elegit
to
the
Sheriff
of
London
,
where
the
Action
was
brought
,
and
to
the
Sheriff
of
Lancaster
,
(
as
the
course
is
)
by
Sci.
fac
.
directed
to
the
Chancellor
of
the
County
Palatine
,
and
this
Elegit
appears
to
be
grounded
upon
a
Testatum
,
first
made
by
the
Sheriff
of
London
,
that
G.
had
nothing
in
London
,
ubi
revera
they
never
made
such
Retorn
,
and
upon
this
the
Sheriff
Retorned
that
he
took
a
Lease
of
Tythes
,
which
the
Sheriff
delivered
to
the
Plaintiff
,
as
the
Goods
and
Chattels
of
G.
for
the
Debt
,
and
that
G.
had
not
plura
bona
,
&c.
Per
Cur.
no
Retorn
●eing
made
by
the
Sheriff
of
London
,
and
it
appearing
that
no
Testatum
was
ever
awarded
,
it
is
Error
,
for
the
Plaintiff
in
B.
C.
might
have
taken
his
Elegit
immediately
into
London
and
into
Lancaster
,
Elegit
into
London
and
Lancaster
or
any
other
Counties
.
yet
he
hath
waved
this
benefit
,
and
grounds
his
Execution
upon
a
Testatum
,
which
is
false
,
and
now
G.
shall
be
restored
to
his
Term
again
;
for
the
Sale
and
delivery
of
the
Lease
to
the
party
himself
on
an
Elegit
is
no
Sale
On
Sale
of
a
Term
where
the
Term
shall
be
restored
or
not
.
by
force
of
the
Writ
,
and
it
is
in
Law
,
but
a
bare
delivery
in
specie
,
and
upon
reversal
shall
be
restored
in
specie
,
and
doth
not
alter
the
property
absolutely
,
but
attends
the
goodness
or
illness
of
the
Execution
.
But
if
the
Sale
had
been
to
a
stranger
for
.
100
l.
tho
the
value
had
been
1000l
.
yet
upon
reversal
,
he
shall
not
have
the
Term
,
but
the
Mony
,
for
it
is
the
folly
of
the
party
that
he
did
not
pay
the
Judgment
:
So
on
Sale
by
Fi.
fac
.
the
Term
shall
never
be
restored
.
vid.
supra
Cro.
Jac.
246.
Yel
.
p.
179.
Goodyear
and
Ince
,
Yel
.
180.
Vid.
where
there
shall
be
a
Re-extent
or
no.
If
no
Retorn
be
upon
Elegit
,
the
party
after
the
Year
and
Day
shall
have
a
Sci.
fac
.
and
after
this
a
new
Elegit
.
Mo.
p
,
24.
n.
83.
The
Sheriffs
Office
about
Execution
for
the
Kings
Debt
After
the
Stat.
33.
H.
8
c.
39.
was
made
for
levying
of
the
Kings
Debt
,
the
usual
Process
to
the
Sheriff
at
this
day
is
,
QUOd
diligenter
per
Sacrament
.
proborum
&
legalium
hominum
de
balliva
tua
inquiras
,
&c.
quae
&
cujusmodi
bona
&
catalla
&
cujusmodi
pretii
idem
debitor
habuit
in
dicta
balliva
tua
,
&c.
Et
ea
omnia
capias
in
manus
nostras
ad
valentiam
debiti
praed.
&
inde
Fi.
Fac.
debitum
praed.
&c.
Et
si
forte
bona
&
catalla
praedicti
debitoris
ad
solucion
.
debiti
praedict.
non
sufficerent
tunc
non
omittas
propter
aliquam
Libertatem
quin
eam
ingrediaris
&
per
sacrament'
praed.
proborum
,
&c.
diligent
inquiras
quas
terras
&
quae
tenementa
&
cujusmodi
Annui
valoris
idem
(
debitor
)
habuit
seu
seisitus
fuit
in
dicta
balliva
tua
,
&c.
Et
ea
omnia
&
singula
in
quorum
manibus
jam
existunt
extend
.
fac.
&
in
manus
nostras
capias
,
&c.
Et
capias
praed.
(
debitorem
)
ita
quod
habeas
corpus
praed.
(
debitoris
)
ad
satisfac
.
nobis
de
debito
praed.
Whereby
it
appears
,
that
if
the
Goods
and
Chattels
of
the
Kings
Debtor
be
sufficient
,
and
so
can
be
made
to
appear
to
the
Sheriff
,
whereupon
he
may
levy
the
Kings
Debt
,
then
ought
not
the
Sheriff
to
extend
the
Lands
of
the
Debtor
or
his
Heir
,
or
of
any
Purchaser
,
or
Ter-tenant
.
If
one
extends
a
Statute
Staple
at
the
Suit
of
The
King
to
be
preferred
.
A.
the
Sheriff
extends
the
Lands
,
and
takes
the
Goods
,
and
seiseth
them
into
the
hands
of
the
King
,
but
does
not
make
Livery
,
and
and
after
a
Writ
of
Prerogative
of
the
King
issues
out
of
the
Exchequer
,
and
commands
the
Sheriff
to
levy
the
Kings
Debt
of
B.
(
viz.
)
100
l.
of
the
Goods
of
the
Debtor
;
and
if
he
had
not
sufficient
,
then
to
Extend
his
Lands
;
and
this
is
delivered
to
the
Sheriff
after
the
first
Writ
of
Extent
,
but
that
was
not
Retorned
.
The
Sheriff
in
this
Case
ought
to
execute
the
Extent
for
the
King's
Debt
;
because
the
property
of
the
Goods
and
Lands
were
not
in
A.
before
they
were
delivered
to
him
by
a
Writ
of
Liberate
,
and
the
Goods
being
seised
into
the
hands
of
the
King
for
the
use
of
the
party
,
were
priviledged
from
all
other
Executions
,
but
that
of
the
King
only
,
2
Roll.
Ab.
158.
Dyer
67.
Stringfellow's
Case
.
Hob.
339.
Where
the
Officer
without
any
Warrant
or
Property
of
the
Goods
not
in
the
Plaintiff
before
the
Liberate
.
Authority
shall
levy
any
Duty
for
the
King
,
and
shall
after
account
for
the
same
in
the
Exchequer
,
or
otherwise
pay
the
same
to
the
King's
use
,
there
the
Officer
seemeth
chargable
but
as
a
Trespassor
;
but
if
he
shall
convert
the
same
to
his
own
proper
use
,
it
is
Felony
.
If
a
man
be
bound
in
a
Statute-Merchant
Execution
on
Stat.
Merchant
.
(
and
does
not
pay
the
Debt
at
the
day
)
Execution
shall
be
done
thereof
in
this
manner
;
the
Conisee
must
come
to
the
Major
,
or
other
Officer
,
before
whom
the
Statute
was
acknowledged
,
and
pray
him
to
Certifie
the
same
into
the
Chancery
,
under
his
Seal
,
&c.
and
if
he
will
not
Certifie
it
,
then
a
Writ
of
Certiorari
must
be
sued
forth
of
Chancery
,
directed
to
the
said
Officer
,
to
Certifie
the
acknowledgment
of
the
said
Statute
into
the
Petty-Bag
Office
in
Chancery
,
and
upon
the
Certificate
a
Writ
of
Execution
;
scilicet
,
First
,
a
Capias
shall
go
out
to
the
Sheriff
against
the
Body
of
the
Conisor
(
si
Laicus
sit
;
)
but
the
Debtor
,
after
he
is
taken
,
hath
liberty
given
him
(
within
a
Quarter
of
a
year
)
to
sell
his
Lands
and
Goods
to
discharge
his
Debts
:
And
if
he
do
not
agree
for
his
said
Debts
within
the
next
Quarter
;
or
if
he
cannot
be
found
,
then
all
his
Lands
and
Goods
upon
Extendi
facias
shall
be
Appraised
by
a
Jury
,
and
shall
be
delivered
to
his
Creditors
by
a
reasonable
time
,
to
hold
till
the
Debt
be
fully
paid
;
and
yet
the
Body
of
the
Debtor
,
if
he
be
taken
,
shall
remain
in
Prison
until
the
Debt
and
Damages
be
paid
.
And
this
Writ
may
be
Retornable
into
the
C.
B.
or
B.
R.
Tho'
it
be
within
a
Franchise
,
the
Sheriff
is
to
execute
it
himself
.
If
the
Sheriff
Retorn
,
That
the
Debtor
is
a
Clerk
,
then
an
Extent
shall
go
out
against
his
Lands
and
Goods
only
.
If
the
Debtor
find
Sureties
,
they
shall
be
Ordered
in
all
things
as
the
Principal
;
scilicet
,
As
to
the
Arrest
of
their
Bodies
,
and
delivery
of
the
Lands
and
Goods
.
The
Statute
ought
to
be
shewed
to
the
Court
,
where
the
Certiorari
is
Retorned
.
The
Creditor
out
of
the
Profits
of
the
Lands
,
is
to
find
the
Debtor
Bread
and
Water
in
Prison
.
Of
Statute-Staple
.
A
Statute-Staple
is
of
two
sorts
:
1.
Per
Stat.
26
Ed.
3.
cap.
9.
&
sic
proprie
dicitur
,
and
is
acknowledged
before
the
Mayor
of
the
Staple
.
2.
Per
Stat.
23
H.
6.
c.
6.
before
one
of
the
Chief
Justices
,
or
before
the
Mayor
and
Recorder
of
London
.
A
Statute-Staple
must
be
Certified
into
Chancery
Stat.
Staple
.
as
a
Statute-Merchant
,
and
on
that
Certificate
Execution
shall
go
presently
forth
against
the
Body
(
si
Laicus
sit
,
)
and
Lands
and
Goods
of
the
Conisor
,
Retornable
into
Chancery
,
in
the
Petty-Bag
Office
there
,
and
not
into
B.
C.
or
B.
R.
as
Statute-Merchant
.
The
Sheriff
on
this
shall
take
the
Body
of
the
Conisor
,
and
per
Sacramentum
proborum
,
&c.
presently
extend
,
and
prize
and
seise
into
the
King's
hands
his
Lands
,
Goods
and
Chattels
,
and
shall
Certifie
the
Appraisment
into
Chancery
.
Upon
which
the
Conisee
shall
have
a
Liberate
to
the
Sheriff
,
to
deliver
these
Lands
and
Goods
to
the
value
of
his
Debt
;
and
shall
not
be
delivered
to
him
by
the
Sheriff
before
the
Liberate
.
Of
Retorns
on
Statute
Merchant
,
Staple
and
Recognizance
;
and
the
Sheriffs
demeanor
in
the
Executions
.
Before
I
speak
of
the
Retorns
,
it
will
be
needful
to
consider
the
Writs
themselves
,
and
the
different
Forms
of
them
:
For
they
are
the
Sheriffs
Directions
.
The
Writ
of
Execution
upon
a
Statute
Merchant
,
Statute-Merchant
.
is
for
Lands
and
Goods
thus
:
QUod
Vic'
omnia
bona
&
catalla
terras
&
tenementa
quae
fuerunt
praedicti
(
le
Conisor
)
sine
dilatione
Liberari
faceret
per
rationabile
pretium
&
extentum
tenend'
ut
liberum
tenementum
,
&c.
And
he
is
not
commanded
to
do
it
per
Sacramentum
proborum
,
&c.
But
the
Writ
of
Execution
upon
a
Statute-Staple
,
and
upon
a
Recognizance
in
the
nature
of
it
(
on
23
H.
8.
)
is
,
QUod
Vic'
omnia
terras
&
catalla
per
Sacramentum
proborum
&
legalium
hominum
de
balliva
sua
per
quos
,
&c.
juxta
verum
valorem
diligent'
extendi
&
appretiari
faceret
&
in
manum
nostram
seisiri
faceret
ut
ea
praefato
(
le
Conisee
)
quousque
sibi
de
summa
praedicta
satisfactus
fuerit
,
liberari
faciamus
,
&c.
Et
qualiter
,
&c.
So
that
as
ye
may
observe
by
the
Forms
,
by
force
of
the
Writ
on
the
Statute
Merchant
,
the
Sheriff
may
deliver
the
Lands
and
Goods
presently
upon
the
Extent
to
the
party
.
But
by
the
Writ
on
Statute
Staple
,
or
Recognizance
in
the
nature
of
it
,
he
is
to
extend
the
Lands
and
Goods
,
and
to
seise
them
into
the
hands
of
the
King
;
but
not
to
deliver
them
to
the
party
without
a
Liberate
.
The
Proceedings
in
a
Statute-Merchant
,
is
a
Difference
between
proceedings
in
a
Stat.
Merch.
and
Stat.
Staple
.
Capias
,
and
if
the
Sheriff
thereupon
retorn
a
Cepi
corpus
,
then
he
shall
remain
in
Prison
a
quarter
of
a
year
,
within
which
time
he
may
sell
his
Goods
and
Lands
to
pay
his
Debts
,
and
this
by
the
express
words
of
the
Statute
of
15
H.
7.
c.
16.
but
if
the
Sheriff
retorn
Non
est
inventus
,
Execution
shall
be
granted
of
his
Lands
and
Goods
.
But
in
a
Statute-Staple
and
Recognizance
,
the
first
Process
is
to
take
his
Body
,
Lands
and
Goods
all
in
one
Writ
;
for
this
is
by
the
express
words
of
the
Statute
,
and
a
more
speedy
Remedy
than
the
Statute-Merchant
.
Now
on
a
Statute-Staple
and
Recognizance
,
the
Writ
of
Execution
upon
Retorn
of
the
Conisor
dead
,
is
to
extend
the
Lands
nec
non
catalla
,
which
were
of
the
Conisor
at
the
time
of
his
death
:
And
this
is
the
constant
course
,
as
appears
by
Records
of
Extents
which
are
in
the
Rolls
.
On
Extent
of
a
Statute-Merchant
the
Sheriff
Retorns
,
That
the
Body
cannot
be
found
,
and
that
he
had
extended
the
Lands
and
delivered
them
to
the
Plaintiff
,
Reg.
146.
The
Sheriff
may
retorn
Non
est
inventus
,
nec
habet
bona
nec
terras
;
the
Sheriff
retorned
the
Conisor
mortuus
,
Dyer
299.
Upon
Extent
of
a
Statute-Merchant
,
or
Staple
,
the
Sheriff
may
retorn
,
That
the
Debtor
is
Clerk
.
If
he
retorn
Tradè
,
or
Mandav'
ballivo
Libertatis
,
he
shall
be
punished
.
Lands
in
Ancient
Demesn
shall
be
taken
in
Execution
on
a
Statute
;
but
not
Copyhold-Lands
,
4
Rep.
67.
5.
Rep.
105.
Where
,
the
Debt
of
the
Conisor
appeareth
in
the
Retorn
,
there
of
necessity
his
Seisin
must
be
found
to
be
of
an
Estate
in
Fee-simple
only
,
Dyer
299.
Execution
upon
Recognizance
per
Stat.
32
H.
8.
c.
6.
hath
the
effect
of
a
Statute-staple
.
Retorn'
Liberate
post
Extent'
fact'
super
Oblig'
Statut'
Stapulae
.
VIrtute
,
&c.
Liberavi
infranominat
'
B.
S.
maneria
terras
&
tenementa
infrascript'
habena
'
sibi
&
assignat'
suis
ut
liberum
tenementum
suum
quousque
sivi
de
debito
infrascripto
una
cum
damnis
misis
&
expensis
suis
plenarie
fuerit
satisfact'
prout
,
&c.
Retorn'
de
Extent'
super
Recogn'
vel
Stat'
.
VIrtute
istius
brevis
mihi
direct'
cepi
corpus
infranominat
'
W.
W.
cujus
quidem
corpus
ad
diem
&
locum
infra
content'
paratum
habeo
prout
interius
mihi
praecipitur
.
Resid'
Executionis
istius
brevis
patet
in
quadam
Inquisitione
huic
brevi
annex
.
'
A.
B.
Armig.
Vic.
War
.
INquisitio
indentat'
capt'
apud
C.
in
Compraed
.
12
die
Jan.
Anno
,
&c.
coram
A.
B.
Armig.
Vic.
Com.
praedict.
Virtute
brevis
Dom.
Regis
mihi
direct
.
&
huic
Inquisitioni
annex'
per
Sacramentum
T.
B.
&c.
(
Et
sic
XII
.
)
qui
dicunt
super
Sacramentum
suum
quod
W.
W.
in
brevi
praedict.
nominat
.
die
recogn
.
debit'
in
eodem
brevi
spec.
fuit
seisitus
in
dominico
suo
ut
de
feodo
de
&
in
manerio
de
A.
in
Com.
praed.
clar
.
annui
valoris
in
omnibus
exitibus
ultra
reprisas
100
l.
Et
ulterius
Juratores
praedict.
super
Sacramentum
suum
praedict.
dicunt
quod
praed.
W.
W.
die
recognitionis
debiti
praed.
seu
unquam
postea
nulla
habuit
bona
sua
catalla
,
neque
al.
sive
plura
terr.
five
tenementa
in
Com.
praed.
ad
eorum
notitiam
quod
extend
.
appretiari
aut
in
manus
dicti
dom.
Regis
capi
aut
seisiri
possint
.
Quae
quidem
manerium
terr.
&
tenementa
praedict.
cum
pertinentiis
Ego
praefat.
Vic.
die
captionis
hujus
Inquisitionis
cepi
in
manus
dict.
dom.
Regis
per
Extent
.
praed.
In
cujus
rei
testimonium
tam
ego
praefat.
Vic.
quam
Jurat
.
praed.
huic
Inquisition
.
sigilla
nostra
alternatim
apposuimus
die
anno
&
loco
supradict'
,
&c.
A.
B.
Armig.
Vic.
Extent
on
a
Statute-Merchant
issued
out
Retorn
.
against
R.
the
Conisor
;
the
Sheriff
Retorned
,
That
the
Conisor
was
possest
of
divers
Goods
,
and
seised
of
Lands
,
which
he
delivered
to
the
Conisee
,
and
that
the
Conisee
accepted
of
the
Land
;
and
because
the
Sheriff
did
not
Retorn
,
That
he
had
not
any
other
Lands
,
Goods
or
Chattels
.
It
was
Adjudged
Insufficient
,
and
a
new
Writ
awarded
;
tho'
some
held
it
was
well
enough
in
the
Case
of
a
Conisor
,
but
not
in
the
Case
of
a
Purchaser
,
1
Brownl
.
37.
Fletcher
and
Robinson
.
Note
,
If
the
Conisor
be
Retorned
dead
,
Execution
If
the
Conisor
be
dead
,
how
Execution
to
be
.
shall
be
granted
against
his
Executor
,
without
Scire
fac
'
to
have
Execution
of
his
Goods
;
so
against
the
Heir
and
Tertenants
of
his
Lands
without
a
Scire
fac'
,
Quaere
.
15
H.
7.
16.
b.
2
R.
3
8.
b.
If
the
Sheriff
do
not
Retorn
the
Capias
,
or
retorn
Tardè
,
or
that
he
directed
it
to
a
Bayliff
of
a
Franchise
,
he
shall
be
punished
,
and
yield
Damages
to
the
party
grieved
,
according
to
the
Statute
of
de
Mercatoribus
,
W.
2.
c.
39.
Two
Inquisitions
taken
at
several
days
by
several
Juries
upon
one
Statute-Merchant
,
were
Adjudged
naught
:
One
was
taken
of
the
Lands
,
and
the
other
for
the
Lands
and
Goods
,
1
Brownl.
38.
If
another
had
these
Lands
.
in
Execution
by
Elegit
,
or
is
in
by
discent
;
in
such
Cases
the
Sheriff
shall
Retorn
the
special
Matter
;
i.
e.
in
the
first
Case
,
that
he
hath
extended
the
Land
of
the
Defendant
:
But
he
cannot
deliver
the
same
to
the
Plaintiff
;
for
that
another
had
the
same
in
Extent
before
.
The
Sheriff
having
an
Extent
upon
a
Statute
,
may
gather
the
Goods
all
into
one
place
to
be
viewed
and
appraised
by
the
Jurors
,
and
he
is
not
a
Trespassor
,
Mo.
563.
Attorney
General
vers
.
Crocker
.
As
to
what
Lands
,
&c.
shall
be
extended
upon
Statutes
,
&c.
it
does
not
properly
belong
to
this
Treatise
,
which
hath
a
respect
only
to
the
Office
of
Sheriff
.
Note
,
If
Lands
delivered
in
Execution
(
on
a
Scire
fac
'
,
and
New
Writ
of
Execution
,
where
.
Statute-Merchant
,
Staple
or
Recognizance
,
or
upon
recovery
of
Debt
and
Damages
)
are
lawfully
recovered
or
evicted
out
of
the
possession
of
the
Conisee
,
before
his
Debt
and
Damages
be
satisfied
,
he
shall
have
Scire
fac'
,
&c.
and
upon
this
a
new
Writ
of
Execution
,
or
Re-Extent
,
to
levy
the
residue
per
Stat.
32
H.
8.
c.
1.
1
Inst.
289
,
290
,
5
Rep.
87.
Note
also
,
It
is
a
Question
in
2
Brownl.
270.
By
whom
.
King
James
Incorporated
the
Mayor
,
Bayliffs
and
Burgesses
of
Berwick
,
and
granted
to
them
the
Execution
and
Retorn
of
all
Writs
,
Whether
an
Extendi
facias
shall
be
Executed
by
them
,
or
by
the
Sheriff
of
Northumberland
?
Some
said
Berwick
is
English
,
which
appears
by
the
Act
of
Parliament
which
confirms
the
Letters
Patents
,
and
also
they
send
Burgesses
to
Parliament
.
Others
said
,
It
is
a
part
of
Scotland
,
and
a
Sheriffwick
.
An
Obligation
there
shall
not
be
Tried
in
England
;
and
it
is
not
in
the
County
of
Northumberland
,
nor
part
of
it
.
By
Siderfin
p.
382.
our
Laws
are
not
current
there
:
But
yet
in
Jackson
and
Crisp's
Case
,
Local
breach
of
Covenant
at
Berwick
,
Tried
at
Belford
in
Cumberland
▪
2
Brownl.
270.
2
H.
7.
31.
26
H.
23.
Retorns
on
Scire
facias
.
Scire
facias
is
a
Writ
Judicial
,
directed
to
the
Sheriff
,
&c.
and
is
usually
to
warn
a
man
,
to
come
and
shew
Cause
to
the
Court
,
&c.
why
Execution
of
a
Judgment
shall
not
be
done
.
But
this
Writ
shall
not
be
granted
before
the
year
and
day
past
,
after
Judgment
given
.
Conisor
in
a
Recognizance
dies
,
Scire
fac
'
Retorn
not
agreeing
with
the
Writ
.
goes
against
his
Executors
,
&
Haeredes
terrarum
,
&c.
Sheriff
Retorns
,
That
he
had
no
Executor
;
&
Scire
feci
W.
H.
filio
&
haeredi
praedict
.
M.
(
le
Conisor
.
)
This
Retorn
agrees
not
with
the
Writ
;
yet
it
may
be
good
,
3
Rep.
15.
Sir
William
Herbert's
Case
.
Scire
fac
'
on
a
Recognizance
in
Chancery
against
C.
who
was
Retorned
dead
,
then
a
second
Scire
fac
'
issued
against
the
Heir
of
C.
and
against
the
Tenants
of
the
Lands
of
C.
which
he
had
tempore
Recognitionis
vel
postea
.
The
Sheriff
Retorned
C.
Tertenant
,
and
omitted
to
Retorn
any
thing
against
the
Heir
.
This
a
Non-retorn
of
the
Sheriff
,
and
not
a
Mis-retorn
,
and
is
not
aided
by
any
of
the
Statutes
of
32
H.
8.
or
18
Eliz.
or
21
Jac.
of
Jeofail
.
The
Heir
must
be
summoned
as
well
as
Tertenant
,
on
a
Recognizance
It
s
Error
:
The
Tertenant
without
the
Heir
ought
not
to
be
charged
;
therefore
the
Heir
ought
to
be
summoned
,
for
the
Heir
may
have
a
Release
to
plead
,
or
other
Matter
to
bar
the
Execution
.
Also
if
the
Heir
be
within
Age
,
the
Parol
shall
demur
,
and
the
Tertenant
shall
have
advantage
thereof
:
And
a
new
Scire
fac
'
issued
ad
Informand'
Curiam
;
and
the
Retorn
was
,
That
he
had
not
any
Lands
in
his
Bailywick
that
descended
to
his
Heir
,
nor
any
Heir
within
his
Bailywick
,
and
good
enough
;
tho'
it
had
been
better
,
if
he
had
Retorned
who
was
Heir
,
and
that
he
was
warned
,
or
that
there
was
not
any
Heir
in
the
said
County
,
Cro.
Car.
295.
Eyres
and
Taunton
.
The
Writ
Commands
the
Sheriff
to
give
The
words
of
the
Writ
not
answered
in
the
Retorn
.
Notice
to
the
Tenants
of
the
Land
in
Fee-simple
,
and
the
Sheriff
Retorns
not
,
That
those
which
he
had
Retorned
were
Tenants
of
the
Land
in
Fee-simple
,
and
so
the
words
of
the
Writ
are
not
answered
,
1
Brownlow
Rep.
145
,
146.
The
Sheriff
may
Retorn
24
Tertenants
of
the
whole
,
and
every
Tenant
may
plead
in
discharge
of
himself
;
or
he
may
Retorn
,
That
each
is
Tertenant
of
so
many
Acres
,
2
Keb.
601.
Henshaw's
Case
.
Scire
fac
'
to
have
Execution
on
a
Recognizance
.
The
Sheriff
Retorns
the
Conisor
dead
,
other
Scire
fac
'
Issues
against
the
Tertenants
of
the
Conisor
,
on
which
the
Sheriff
retorns
a
Scire
feci
to
W.
and
R.
Tenants
;
and
further
,
that
there
was
no
Heir
nor
any
other
Tenants
,
quibus
Scire
fac'
poterit
,
&
la
forme
,
1
Keb.
621.
2
Sanders
6.
Jefferson
and
Moreton
.
Scire
fac
'
against
the
Heir
and
Tertenants
,
the
Sheriff
Retorns
no
Heir
,
and
the
Tertenants
appear
,
&
la
form
,
2
Sanders
.
Jefferson's
Case
.
Scire
fac
'
to
Tertenants
,
the
Sheriff
retorns
they
are
Summoned
,
la
fo●me
2
Sanders
6
,
8
,
232.
Scire
fac'
ad
audiend'
errores
must
be
delivered
Scire
fac'
ad
audiend
errores
.
to
the
Sheriff
,
1
Rols
Rep.
329.
Sr.
Thomas
Midleton's
Case
.
If
a
Special
Scire
fac
'
do
Issue
forth
,
a
Nihil
Special
Scire
fac
.
ret
.
cannot
be
retorned
upon
it
,
for
Nihil
is
a
general
Retorn
,
and
the
Writ
is
Special
,
Pract.
Reg.
tit
.
Retorn
.
The
Retorn
of
the
second
Scire
fac
'
ought
to
Ret.
of
the
second
Scire
fac
'
when
to
bear
date
.
bear
date
on
the
Retorn
of
the
first
Scire
fac
'
.
Retorn
de
Scire
fac'
.
VIrtute
istius
brevis
nihil
direct'
per
A.
B.
&
C.
D.
probos
&
Legales
homines
de
Balliva
mea
Scire
fec'
infra
nominat
'
J.
S.
qd.
sit
Coram
Justiciariis
Domini
Regis
(
if
it
be
in
the
Common-Pleas
)
vel
Coram
Domino
Rege
(
if
in
the
King-Bench
)
vel
Coram
Baronibus
Domini
Regis
(
if
in
the
Exchequer
)
ad
diem
&
locum
infra
script
.
ad
ostend
.
&
proponend
.
si
quid
pro
se
habeat
vel
dicere
sciat
quare
,
&c.
according
the
Matter
contained
in
the
Writ
)
prout
mihil
interius
praecipitur
.
Infra
nominat
.
A.
B.
nihil
habet
in
Balliva
mea
per
quod
ei
Scire
facere
possum
,
neque
est
inventus
in
eadem
(
if
the
Retorn
be
in
Chancery
)
—
qd'
sit
Coram
Domino
Rege
in
Cancellaria
.
Two
Nihils
Retorned
countervail
a
Scire
fec
'
.
To
Scire
fac
.
sur
Recognisans
,
Sheriff
Retorns
that
the
Defendant
is
dead
,
2
Sanders
.
Scire
fac
.
Vid.
Tertenants
,
The
Sheriff
Retorns
they
are
Summoned
,
2
Sanders
8.
The
Sheriffs
Demands
and
Office
as
to
Outlawries
and
Capias
Utlagatum
,
and
Retorn
.
He
which
is
sued
in
a
personal
Action
,
if
he
The
manner
of
suing
to
the
Outlawry
.
do
not
appear
on
the
Mean
Process
,
then
the
Exigent
is
directed
to
the
Sheriff
to
call
and
proclaim
him
in
five
County
Court
Days
one
after
another
,
to
answer
to
the
Law
;
and
when
,
upon
the
Exigent
the
Sheriff
Retorns
quod
non
comparuit
;
upon
this
Retorn
,
the
Plaintiff
shall
have
a
Cap.
utlagatum
against
the
Defendant
,
but
if
the
Defendant
appear
upon
the
Exigent
,
he
shall
have
a
Supersedas
.
Where
upon
the
Exigent
the
Sheriff
retorneth
Retorns
.
Reddidit
se
,
he
must
have
the
Body
in
Court
at
the
day
of
the
Retorn
of
the
Writ
,
except
the
Party
be
Sick
.
The
Sheriff
may
Retorn
the
Coroners
were
absent
.
As
for
the
Forms
of
these
Retorns
,
vid.
Dalt
.
cap.
59.
A
Capias
utlagatum
is
a
non
omittas
in
it self
.
The
Bayliff
of
a
Franchise
cannot
Execute
a
Cap
Uilagat
.
Sheriff
not
to
put
the
party
out
of
possession
.
And
therefore
the
Bayliff
of
a
Liberty
cannot
Execute
a
Cap.
Utlagt
.
and
if
the
Party
be
in
the
hands
of
the
Bayliff
the
Sheriff
may
take
him
.
If
a
Capias
Utlagatum
Issues
to
the
Sheriff
to
take
the
Party
,
and
to
enquire
what
Lands
and
Tenements
he
had
,
the
Sheriff
finds
by
Inquisition
,
that
is
seised
of
many
Lands
,
and
continues
Possession
in
them
,
he
cannot
put
the
Party
out
of
Possession
by
force
of
that
,
Winch
p.
78.
An
Outlawry
Retorned
in
London
in
these
Retorn
as
to
the
Hustings
in
London
.
words
.
Ad
Husting
.
tentum
in
Guildhal
Civitatis
London
tali
die
A.
B.
exactus
fuit
&
non
comparuit
:
This
is
no
good
Retorn
,
because
there
are
two
Hustings
in
London
,
one
is
de
communibus
placitis
,
and
the
other
is
de
placitis
terrae
;
in
such
case
the
Retorn
must
be
apud
Husting
de
communibus
placitis
.
The
City
of
Norwich
is
within
the
County
of
Ret.
where
the
City
is
City
and
County
.
Norfolk
.
Also
it
is
a
County
in
it self
,
which
may
hold
Plea
.
And
therefore
if
a
Retorn
be
made
in
these
words
,
Ad
Com'
tentum
apud
Norvicum
in
Com.
Norfolc
.
This
is
not
good
,
for
that
it
may
have
two
Intendments
(
scilicet
)
that
the
County
which
was
held
there
was
for
the
City
,
or
for
the
County
of
Norfolk
:
But
if
the
Retorn
be
in
these
words
,
Ad
Comitatum
Norfolc'
tentum
apud
Norwiucm
in
Comit.
Norfolc
.
it
is
good
,
for
now
it
cannot
be
intended
,
but
only
that
their
County
was
held
for
the
County
of
Norfolk
,
11
H.
7.
10.
b.
In
a
Cap.
Utlagat
.
the
Sheriff
retorned
,
that
Protection
Retorned
.
the
Party
who
was
Arrested
had
a
Protection
from
a
Peer
of
Parliament
it
is
Ill
;
and
day
was
given
to
the
Sheriff
to
amend
his
Retorn
,
Winch
p.
24.
Proclamation
was
directed
to
the
Sheriff
of
Proclamation
Retorned
.
Cheshire
against
J.
H.
and
the
Writ
was
Retorned
,
Tali
die
ad
Comit.
meum
tent
.
en
le
Shirehall
,
&c.
Proclamationem
feci
ac
eod.
die
ad
General'
Session
.
&c.
Proclamationem
feci
,
and
this
Matter
was
pleaded
in
avoidance
of
the
Outlawry
to
Reverse
it
,
because
the
Proclamations
were
made
one
day
,
and
the
Writ
was
tribus
specialibus
diebus
,
&c.
Per
Curiam
,
It
is
an
ill
Retorn
,
and
the
Sheriff
was
amerced
for
it
,
Goldsborough
111.
By
the
Custom
of
London
the
Writ
was
directed
to
the
Sheriff
of
London
,
and
not
to
the
Coroner
(
who
is
Mayor
.
)
The
Retorn
of
the
Outlawry
out
of
London
in
B.
R.
is
generally
made
without
saying
per
judicium
Coronat
.
2
Rolls
Ab.
806.
Error
to
Reverse
an
Outlawry
in
the
County
of
Lancaster
,
for
that
the
Sheriff
retorned
qd.
ad
Com.
Lancastriae
tent
.
ibid.
where
it
should
have
been
ad
Com.
Lancastriae
tent
.
apud
Lancaster
,
or
at
some
other
place
certain
,
and
it
was
reversed
,
9
Rep.
94.
Dyer
105.
The
Exigent
was
Retorned
,
ad
Com.
tent
.
apud
Retorn
Exigent
.
castrum
de
Exon
primo
exactus
fuit
,
&c.
and
because
it
was
not
set
down
in
what
County
,
it
was
held
to
be
Erroneous
.
One
was
retorned
Outlawed
,
and
for
that
it
did
not
appear
,
that
it
was
per
judicium
Coronatorum
,
it
was
reversed
,
and
that
without
any
Writ
of
Error
.
VIrtute
istius
brevis
mihi
direct
.
cepi
corpus
A.
B.
Cap.
1.
This
the
Form
of
Retorns
.
infrae
nominat
.
cujus
corpus
Coram
Justioariis
infra
script
.
ad
diem
&
Locum
infra
content
.
parat
.
habeo
prout
interius
mihi
praecipitur
,
residuum
vero
Executionis
istius
brevis
patet
in
quadam
inquisitione
huic
brevi
annex
.
So
on
non
est
inventus
,
residuum
vero
,
&c.
Inquisitio
Indentat
.
capt
.
apud
,
&c.
Qui
dicunt
super
Sacramentum
suum
qd.
J.
S.
in
dicto
brev.
nominat
.
nulla
Bona
neque
Catalla
Terr
.
sive
Tenementa
habuit
aut
tenuit
in
Com.
praed.
die
Jovis
prox
.
post
festum
Sanct.
B.
Martyr
.
Anno
Regni
Domini
Regis
nunc
tertio
in
dicto
brevi
specificat
.
nec
unquam
postea
,
quae
in
manus
dicti
Domini
R●gis
capi
ac
seisiri
possunt
ad
noticiam
Juratorum
praedict.
In
cujus
rei
Testimonium
tam
sigillum
Com.
praed.
quam
Juratorum
praed.
huic
Inquisitioni
Indentat
.
sunt
appensa
dat.
die
anno
&
loco
supradict.
Other
Retorns
in
Capias
Utlagat
.
vid.
Dalton
,
215.
Retorna
de
Exigent
,
vid.
Dalt
.
236.
The
Judgment
is
,
Ideo
Utlagat
.
Coronator'
1
Inst.
288.
The
profits
of
Lands
of
the
Person
Outlawed
in
personal
Actions
,
the
Sheriff
may
seise
without
any
Office
,
and
also
the
Goods
.
CHAP.
XX.
Where
and
in
what
Cases
Action
lies
against
a
Sheriff
for
a
Rescous
,
and
what
Action
.
Diversity
between
Mean
Process
and
Execution
:
Where
the
Sheriff
makes
himself
chargeable
by
his
Retorn
.
Where
and
what
Remedy
against
the
Rescouser
by
Action
or
Indictment
.
Of
Retorn
of
Rescous
.
What
is
good
or
not
.
Of
Laying
the
Action
,
and
how
to
Declare
.
Of
Rescous
and
Pleadings
in
it
.
The
Venue
in
this
Action
.
Of
Rescous
.
Where
and
in
what
Cases
Action
lies
against
the
Sheriff
for
a
Rescous
or
not
.
IF
in
the
Arresting
the
party
is
rescued
,
be
it
on
Execution
or
Mean
Process
,
no
Action
for
this
lies
against
the
Sheriff
:
And
if
the
Prisoner
be
Arrested
on
Mean
Process
,
and
as
he
is
bringing
to
the
Gaol
he
is
rescued
,
no
Action
lies
against
the
Sheriff
,
for
the
Sheriff
cannot
be
supposed
to
have
the
Posse
Comitatus
upon
every
Mean
Process
,
aliter
if
it
be
upon
Execution
;
there
Caveat
Vicecomes
.
But
if
he
be
Arrested
Diversity
between
Mean
Process
and
Execution
as
to
Rescous
.
upon
Mean
Process
and
brought
to
the
Gaol
,
then
it
s
no
good
Retorn
for
him
to
say
,
the
Gaol
was
broken
and
so
he
was
taken
from
him
.
And
therefore
,
Action
on
the
Case
was
brought
against
the
Sheriff
of
London
and
Middlesex
on
Escape
,
they
plead
they
had
taken
the
party
on
a
Latitat
,
and
that
in
bringing
him
from
Islington
to
the
Gaol
,
Rescous
was
made
of
him
from
them
,
and
so
Retorn
the
Rescous
,
16
Ed.
4.
3.
Bastard
Faulconbridges
Case
,
2
Bulst.
198.
May
and
Proby
,
Cro.
Jac.
419.
Mo.
852.
Cro.
El.
868.
Noy
40.
1
Roll.
Rep.
388.
Rol.
Ab.
99.
Mesme
Case
.
Popham
192.
Per
Cur.
The
Plea
and
Retorn
is
good
,
notwithstanding
Waldoe
and
Lamberts
Case
,
44
El.
B.
R.
and
that
upon
the
former
differences
;
and
the
difference
between
Mean
Process
and
Execution
was
inforced
in
this
Case
.
If
the
Sheriff
take
one
in
Execution
for
Debt
,
and
after
he
suffers
him
to
Escape
;
the
debt
is
gone
and
the
Process
served
,
therefore
in
such
case
,
if
he
should
not
have
his
remedy
by
way
of
Action
against
the
Sheriff
,
he
should
be
without
remedy
:
But
not
so
in
Mean
Process
,
for
there
the
Party
may
be
taken
again
.
Action
of
Debt
lies
against
the
Sheriff
upon
a
Cap.
retorned
qd'
cepit
Corpus
and
he
was
rescued
,
2
Rolls
Rep.
57
,
58.
No
Rescous
can
be
on
a
Scire
fac
'
for
Goods
,
but
in
such
case
the
Party
shall
have
Action
on
the
Case
:
And
a
Rescous
lies
only
on
a
Capias
which
lies
against
the
person
,
and
Cro.
Car.
515.
Sly
and
Finch's
Case
,
which
is
full
as
to
the
Point
,
and
was
as
follows
,
Lit.
Rep.
297.
the
Sheriff
of
Surry
and
Alderton's
Case
,
Hetly
145.
Mesme
Case
.
Scire
fac
'
was
brought
against
Finch
Sheriff
of
Glouc
'
,
for
that
the
Plaintiff
having
brought
a
Fieri
fac
'
directed
to
Finch
,
he
retorned
that
he
had
taken
Goods
into
his
Hands
to
the
value
of
72
l.
and
had
sold
as
much
of
them
as
amounted
to
11
l.
and
the
residue
remained
pro
defectu
emptorum
till
such
a
day
,
at
which
time
he
putting
them
to
sale
,
they
were
rescued
from
him
,
upon
which
retorn
the
Scire
fac
'
was
brought
to
shew
cause
,
why
the
remaining
Debt
should
not
be
levied
on
his
Goods
:
To
this
the
Defendant
Demurrs
.
All
agreed
that
the
Retorn
is
not
good
.
But
the
Question
was
,
Whether
he
hath
charged
himself
by
this
Writ
,
Cro.
Car.
515.
Sly
and
Finch
,
Sanders
340
,
343.
Mildum
and
Smith
,
2
Keb.
789
,
821.
Mesme
Case
.
And
per
Cur
'
he
is
chargeable
by
this
Retorn
.
Where
the
Sheriff
makes
himself
chargable
by
his
Retorn
.
If
he
had
retorned
only
qd'
remanent
pro
defectu
emptorum
,
therein
he
had
done
his
Office
,
and
in
such
case
on
the
Election
of
a
new
Sheriff
,
a
Distring
as
Vicecomit
'
shall
Issue
to
sell
the
Goods
,
and
to
deliver
the
Money
to
the
new
Sheriff
.
But
when
he
saith
further
,
that
they
were
rescued
out
of
his
Hands
,
therein
he
hath
misdemeaned
himself
.
And
by
Dodderige
,
the
Sheriff
Vend
'
exponas
.
hath
charged
himself
by
this
Retorn
,
as
well
in
regard
of
his
Misdemeanor
;
as
also
,
that
he
hath
his
remedy
over
against
the
Rescoussers
:
Nor
can
the
Court
award
a
Writ
of
Venditioni
exponas
,
because
it
s
against
his
own
Retorn
.
But
if
it
be
objected
,
that
perhaps
he
had
seised
the
Goods
again
,
so
as
he
may
sell
them
on
a
Venditioni
exponas
,
if
so
,
then
he
ought
to
have
pleaded
Plead
.
it
to
the
Scire
fac
'
and
it
had
been
good
.
Action
on
the
Case
.
Lynn
and
Cunninghams
Case
.
It
was
a
great
Question
,
if
one
shall
have
Action
against
the
parties
that
rescued
.
Three
Judges
were
of
Opinion
he
should
,
tho'
it
was
well
objected
,
if
he
shall
have
Action
against
the
party
,
he
shall
also
have
Action
against
the
Sheriff
,
and
so
betwice
satisfied
,
and
the
Sheriff
shall
have
Action
against
the
party
,
and
so
he
shall
be
twice
charged
.
By
Richardson
,
a
Man
in
some
case
shall
have
Election
of
Action
,
and
both
are
but
to
recover
Damages
;
a
man
had
an
Execution
against
one
,
another
saw
the
man
and
conveyed
him
out
of
sight
;
Action
on
the
Case
lies
against
him
,
and
perhaps
the
Sheriff
is
dead
,
and
he
shall
have
no
remedy
.
Harvy
ad
idem
:
The
Law
gives
a
man
Remedy
against
the
party
that
doth
the
wrong
.
If
an
Action
on
the
Case
will
lie
for
hindring
a
Sheriff
in
Executing
his
Office
,
as
it
was
adjudged
in
Semain
and
Greshams
Case
5
Rep.
à
fortiori
when
it
is
actually
done
,
and
he
is
rescued
out
of
Custody
.
Cro.
ad
idem
that
the
Action
will
lie
;
there
is
a
mischief
on
both
sides
;
the
Defendant
may
be
twice
charged
,
and
the
Plaintiff
may
lose
his
Debt
;
and
if
the
Sheriff
brings
the
Action
,
he
may
plead
the
Recovery
by
the
Plaintiff
.
When
the
Sheriff
made
his
Retorn
of
the
rescous
,
there
is
no
remedy
against
him
;
and
if
the
party
taken
,
be
rescued
before
he
be
brought
to
the
Gaol
,
there
is
no
remedy
against
the
Executors
of
the
Sheriff
.
If
Debt
be
brought
against
the
Sheriff
,
and
in
that
a
recovery
,
the
Plaintiff
shall
never
take
the
Defendant
again
;
and
so
if
he
bring
Action
against
the
party
and
recovers
,
the
Sheriff
may
plead
that
;
and
Fitz.
N.
B.
12
is
doubtful
.
Hutton
contra
,
That
the
Action
doth
not
lie
.
The
difference
is
good
where
a
man
is
arrested
upon
mean
Process
and
rescued
,
and
after
becomes
nonsolvent
,
so
that
they
who
rescued
him
are
the
cause
of
the
loss
of
my
Debt
,
it
is
a
wrong
upon
which
he
may
be
Indicted
,
yet
the
party
shall
not
have
remedy
against
him
,
because
he
may
proceed
.
Yelverton
of
the
same
Opinion
,
and
agreed
the
difference
.
By
Hutton
,
upon
mean
Process
the
Sheriff
never
had
remedy
for
the
Rescous
,
but
he
shall
retorn
the
Rescous
;
but
upon
Execution
he
shall
not
retorn
the
Rescous
,
but
have
an
Action
,
and
the
party
is
not
prejudiced
,
for
he
shall
have
an
Action
against
the
Sheriff
,
tho
in
Judgment
of
Law
the
party
is
liable
.
Remedy
against
the
Rescouser
by
Action
and
Indictment
.
The
Rescouser
shall
be
doubly
punished
,
by
the
King
,
and
by
the
party
;
upon
the
Retorn
of
the
Sheriff
,
he
shall
be
fined
to
the
King
,
and
Attachment
shall
issue
out
against
him
,
and
the
party
shall
have
a
Writ
of
Rescous
against
him
,
and
so
shall
the
Sheriff
too
.
Action
on
the
Case
lies
against
the
party
that
rescoused
,
by
the
party
who
had
the
Loss
,
and
he
shall
not
be
forced
to
Sue
the
Sheriff
,
for
perhaps
the
Sheriff
is
dead
,
and
then
no
Action
lies
against
his
Executors
(
actio
personalis
moritur
,
&c.
)
and
if
the
Plaintff
recover
the
parties
may
plead
it
if
they
be
sued
by
the
Sheriff
,
so
as
there
is
not
any
danger
of
being
doubly
charged
;
so
is
Hoppings
Case
2
Keb.
340.
Action
on
the
Case
lies
against
the
Rescuer
as
well
as
the
Sheriff
.
But
as
to
the
Case
of
Myn
and
Caughton
,
it
is
well
reported
and
agreed
by
the
Judges
in
Hetly
.
p.
94.
by
the
name
of
Lyn
and
Cunningham
,
which
was
full
to
the
Point
,
and
the
Reasons
in
respect
to
this
and
other
cases
of
like
nature
,
are
weighty
;
I
have
set
down
as
it
is
in
the
Book
,
with
the
Reasons
of
the
Judges
that
differed
in
Opinion
.
Cro.
Car.
109.
Mynn
and
Coughton
.
2
Keb.
340.
Hoppings
Case
.
What
Damages
the
Rescouser
shall
answer
.
The
Defendant
rescued
B.
S.
out
of
the
Baylisff
hands
when
the
said
B.
S.
was
arrested
by
Alias
capias
out
of
the
Kings-Bench
,
which
Writ
is
only
in
nature
of
a
Plea
of
Trespass
;
the
party
who
rescued
him
shall
answer
in
this
Action
,
Damages
for
the
Debt
,
which
was
300l
.
because
by
this
means
the
Defendant
lost
his
Debt
,
but
if
the
Sheriff
or
Bayliff
in
this
case
had
only
suffered
a
negligent
escape
,
they
should
be
charged
only
with
the
Damages
in
the
same
Plea
as
the
Writ
supposeth
,
and
nothing
for
the
Debt
.
Lanes
Rep.
p.
70.
Kent
and
Kelloway
.
Remedy
against
the
Rescouser
by
Indictment
,
and
for
what
reason
quasht
or
reversed
.
Error
was
brought
to
reverse
an
Indictment
of
Rescous
and
Ryot
,
and
the
Errors
Assigned
were
.
1.
There
was
a
Warrant
to
three
conjunctim
&
divisim
to
arrest
H.
and
two
of
them
arrest
him
,
it
ought
to
have
been
by
one
or
all
three
,
because
it
is
a
Ministerial
Act
,
14.
H.
4.
34.
2.
Juratores
pro
domino
Rege
praesentant
,
and
do
not
say
12
Jurors
present
and
peradventure
,
but
eleven
did
present
.
Tr.
2
Car.
1.
Harrison
and
Erington
.
The
Names
of
the
Jurors
ought
to
have
been
certified
,
for
peradventure
they
were
not
probi
&
legales
homines
,
but
Villains
and
Outlaws
,
15
H.
4.
41.
Note
,
an
Indictment
before
Coroners
,
which
found
B.
felo
de
se
,
was
quashed
,
because
it
did
not
appear
it
was
per
sacramentum
proborum
&
legalium
hominum
.
4.
It
is
found
that
the
Sheriff
by
vertue
of
a
Writ
directed
to
him
came
,
&c.
and
upon
this
Rescous
was
made
by
H.
&c.
and
it
appears
not
what
manner
of
Writ
it
was
(
viz.
Eleg.
)
Capias
,
&c.
and
if
there
were
no
Writ
there
can
be
no
Rescous
;
and
albeit
he
had
no
Writ
,
yet
if
Execution
were
done
by
vertue
of
another
Writ
,
the
Sheriff
mistakes
the
Warrant
.
party
may
disobey
it
(
if
he
be
not
a
Bayliff
known
)
as
if
on
Hab.
fac
.
seisinam
the
Sheriff
makes
a
Warrant
as
on
a
Capias
.
Tr.
2.
Car.
1.
Harison
and
Exington
.
An
Indictment
for
a
Rescous
retorned
against
one
in
B.
R.
ought
not
to
be
quashed
,
altho
it
be
erronious
,
except
the
person
Indicted
for
it
do
personally
appear
in
Court
.
Pract.
Reg
Tit.
Rescous
.
Indictment
of
rescous
ought
to
express
,
the
Indictment
not
to
be
uncertain
.
place
where
and
the
time
when
the
Rescous
,
or
else
it
is
ill
for
the
uncertainty
,
Pract.
Reg.
Tit.
Rescous
.
Retorn
of
Rescous
.
By
Stat.
W.
2.
c.
39.
a
Retorn
of
Rescous
is
forbidden
,
for
redundat
in
dedecus
domini
Regis
.
The
Sheriff
may
take
the
posse
comitatus
post
vel
ante
Queremoniam
,
as
well
before
as
after
complaint
made
,
and
the
Delinquents
must
be
Upon
a
voluntary
return
(
if
i●●
the
▪
Sheriff
is
not
si●eaable
,
but
Action
lies
against
him
.
punished
coram
Rege
in
the
Kings-Bench
,
Co.
2
Inst.
45.
Note
,
the
Court
never
sines
a
Sheriff
for
the
ill
retorn
of
a
Rescous
,
because
it
is
voluntary
,
but
they
allow
exceptions
to
quash
it
,
because
the
party
cannot
Traverse
it
:
But
where
he
is
compellable
to
make
a
Retorn
,
he
is
finable
,
but
the
party
shall
have
his
Action
on
the
Case
.
Yet
in
Chamber's
Case
,
2
Keb.
358.
the
Sheriff
is
Finable
for
retorning
a
Rescous
on
Fi.
fac
'
;
but
the
Retorn
is
well
enough
as
to
the
party
,
1
Keb.
878.
Burrough's
Case
,
1
Roll.
Rep.
389.
Proby
and
Lumley
.
Now
as
to
the
Ill
Retorns
of
Rescous
,
and
the
Exception
to
quash
it
,
I
shall
briefly
cite
the
Cases
Adjudged
in
our
Books
,
for
the
more
perfect
Direction
of
such
Retorns
hereafter
to
be
made
.
The
Retorn
of
a
Rescous
,
without
mentioning
The
Retorn
must
mention
the
place
where
it
was
made
.
the
place
where
it
was
made
,
is
void
.
The
Sheriff
retorns
Rescous
upon
him
at
Dale
in
the
County
of
Bucks
,
which
was
the
County
into
which
the
Process
was
awarded
.
Exception
was
taken
,
because
he
saith
not
(
infra
ballivam
meam
.
)
But
non
allocatur
;
for
if
it
be
within
the
County
,
it
cannot
otherwise
be
taken
,
but
to
be
within
his
Bailywick
,
Mo.
422.
Upon
a
Latitat
awarded
,
the
Sheriff
retorns
a
Rescous
tali
die
;
but
there
is
not
any
place
mentioned
where
the
Arrest
was
made
.
It
s
a
void
Retorn
.
For
non
constat
,
whether
the
Arrest
and
Rescous
were
within
the
County
and
Jurisdiction
of
the
Sheriff
,
Yelv.
p.
51.
Woolfrost's
Case
.
The
Sheriff
retorned
a
Rescous
against
the
Father
and
Son
;
against
the
Father
for
rescuing
his
Son
,
and
against
the
Son
for
rescuing
himself
.
As
to
the
Father
,
the
Retorn
was
sufficient
as
to
time
and
place
:
But
that
against
the
Son
wanted
such
Certainty
.
By
Dodderidge
,
The
Retorn
is
good
:
It
shall
be
intended
at
the
same
time
that
the
Father
rescued
the
Son
,
that
the
Son
rescued
himself
,
and
the
word
(
Et
)
is
a
Conjunction
Copulative
;
and
compleats
both
together
.
Haughton
contra
.
A
Prisoner
may
be
rescued
by
others
,
and
he
not
know
of
it
;
and
the
Rescous
may
be
at
several
times
,
2
Bulstrode
137.
The
Sheriff
in
his
retorn
of
Rescous
said
,
That
he
was
in
Custodia
ballivi
Itinerantis
,
and
that
a
Rescous
was
made
to
his
Bayliff
Itinerant
.
It
s
not
good
.
Aliter
,
if
it
had
been
Bayliff
of
a
Liberty
,
March
.
Rep.
p.
92.
Rescous
quasht
,
because
it
is
quod
arrestavit
—
without
saying
in
custodia
sua
habuit
—
,
1
Siderfin
332.
The
Sheriff
ought
not
to
say
,
He
rescoused
To
say
,
he
rescued
him
out
of
the
Custody
of
the
Bayliff
,
is
not
good
.
him
out
of
the
Custody
of
his
Bayliff
,
but
out
of
the
Custody
of
the
Sheriff
:
But
it
is
good
,
if
it
were
by
the
Bayliff
of
a
Liberty
.
Retorn
of
a
Rescous
was
not
quasht
for
saying
,
in
custodia
for
è
custodia
;
but
because
he
saith
cepit
&
arrestavit
,
and
not
in
custodia
habuit
,
it
was
quasht
;
for
an
Arrest
may
be
only
by
word
,
2
Keb.
177.
The
King
against
Claypoole
,
and
p.
227.
The
King
against
Sympson
.
Exception
was
to
the
retorn
of
a
Rescous
,
because
it
was
è
custodia
ballivi
mei
.
Sed
non
allocatur
;
for
there
is
veritas
legis
&
veritas
facti
,
and
if
either
be
alledged
its
sufficient
;
therefore
it
s
as
good
as
if
it
had
been
è
custodia
mea
.
But
Keeling
held
it
ill
;
because
a
Retorn
must
answer
the
Law
,
and
the
difference
has
alwas
been
between
a
Sheriffs
Bayliff
,
and
a
Bayliff
of
a
Franchise
.
And
according
to
the
Opinion
of
Keeling
is
Dyer
,
7
El.
241.
Dyer
241.
39
H.
6.
42.
2
Roll.
Rep.
263
,
354.
If
the
Sheriff
retorn
in
Banco
a
Rescous
made
to
his
Bayliff
Errant
by
these
words
,
viz.
Virtute
istius
brevis
,
&c.
mandavi
ballivo
meo
Itineranti
,
&c.
qui
mihi
sic
respondit
,
quod
arrestavit
,
&c.
shewing
the
year
,
day
and
place
;
and
that
a
Rescous
was
made
,
&c.
This
Retorn
is
not
good
,
because
this
Arrest
is
the
proper
Arrest
of
the
Sheriff
,
and
no
credit
is
to
be
given
to
the
Bayliff
Errant
,
Mich.
8
Jac.
in
Scaccario
,
Kent
and
Heltway's
Case
.
But
per
Cur.
such
a
Retorn
in
Banco
Regis
is
good
enough
,
because
the
Presidents
of
the
the
Court
are
accordingly
;
and
such
Retorn
by
a
Bayliff
of
a
Franchise
in
B.
R.
is
good
.
Tho'
its
faid
2
Roll.
Rep.
78.
the
Sheriff
ought
to
retorn
Rescous
made
to
him
,
and
not
to
his
Bayliff
,
yet
in
truth
the
Force
is
made
to
his
Bayliff
;
but
it
is
according
to
the
different
course
of
the
Courts
.
Two
Exceptions
were
taken
to
the
Retorn
of
a
Rescous
:
1.
Feci
Warrant
'
,
but
saith
not
sub
sigillo
Officii
.
Non
allocatur
,
because
he
saith
feci
Warrant'
directè
,
and
it
s
not
a
Warrant
unless
it
be
sub
sigillo
.
2.
It
was
not
retorned
,
That
it
was
extra
custod
'
of
the
Sheriff
,
but
of
the
Bayliffs
.
Sed
non
allocatur
;
for
the
Custody
of
the
Bayliffs
Virtute
warranti
of
the
Sheriff
,
is
the
Custody
of
the
Sheriff
,
Sir
Tho.
Jones
Rep.
195.
Penfold's
Case
.
A
Rescous
was
retorned
in
this
manner
by
the
Sheriff
;
(
viz.
)
in
the
Recital
of
the
Arrest
he
said
,
Mandavi
ballivo
,
&c.
qui
virtute
praedicti
Warranti
arrestavit
,
&c.
and
after
shews
the
Rescous
.
Exception
was
,
He
Commands
his
Bayliffs
to
In
the
Retorn
he
makes
no
mention
of
his
Warrant
.
Arrest
,
and
saith
,
That
by
virue
of
the
said
Warrant
they
did
Arrest
,
&c.
and
makes
no
mention
of
any
Warrant
,
but
of
his
Command
to
them
.
Had
this
been
to
a
Bayliff
of
a
Liberty
it
had
been
good
;
but
not
to
those
which
are
Bayliffs
Itinerants
.
But
per
Cur'
,
he
cannot
Command
a
Bayliff
of
a
Liberty
,
but
by
his
Warrant
.
The
Clerk
of
the
Crown
said
,
The
Common
Form
is
,
Feci
quoddam
Warrantum
;
but
to
a
Bayliff
of
a
Liberty
it
is
Mandavi
.
A
General
Warrant
to
a
Bayliff
of
a
Liberty
(
viz.
)
for
all
Arrests
is
good
;
but
not
to
a
Bayliff
Itinerant
,
by
Haughton
.
But
by
Sir
James
Ley
Chief
Justice
,
Tho'
the
Common
Form
be
Feci
quoddam
Warrantum
,
yet
this
tantamounts
:
For
the
Mandate
of
the
Sheriff
to
the
Bayliff
is
the
Bayliffs
Warrant
.
However
a
Rescouser
as
to
this
cannot
take
advantage
,
but
shall
be
fined
to
the
King
,
2
Roll.
Rep.
263.
The
Sheriff
retorns
a
Rescous
,
and
recites
The
time
and
place
where
the
Warrant
was
made
,
not
shewed
in
the
Retorn
.
where
a
Latitat
was
to
him
directed
,
&c.
he
made
his
Warrant
to
the
Bayliff
,
who
arrested
W.
and
that
G.
made
the
Rescous
.
It
was
held
to
be
good
,
tho'
he
doth
not
shew
the
time
and
place
of
the
Warrant
,
2
Roll.
Rep.
255.
Webb
and
Withers
.
A
Rescous
was
Retorned
in
this
Form
by
the
Sheriff
:
CEpi
corpus
praedict.
A.
&
idem
A.
fuit
in
custodia
mea
virtute
brevis
praedict.
quousque
B.
C.
&
D.
Vi
&
armis
(
tali
die
&
anno
)
in
E.
&
F.
ballivos
meos
insultum
fecere
vulneravere
&
male
tractavere
,
&
A.
de
custodia
mea
adtunc
&
ibidem
rescussere
.
And
two
Exceptions
were
made
:
1.
He
doth
not
shew
any
Warrant
made
to
Mention
no
Warrant
.
the
Bayliff
.
Per
Cur'
.
The
Prisoner
is
alledged
to
be
in
custodia
of
the
Sheriff
,
and
the
Rescous
to
be
from
him
,
and
therefore
need
not
speak
of
the
Warrant
;
and
this
that
is
spoken
of
the
Bayliff
is
Surplusage
.
2.
The
Rescous
is
not
well
retorned
,
because
Rescous
retorned
without
Vi
&
armis
.
the
Battery
is
alledged
to
be
Vi
&
armis
.
Per
Cur'
,
This
is
Surplusage
,
and
the
Rescous
is
not
retorned
to
be
Vi
&
armis
,
Latch
.
p.
184.
Quaere
,
If
a
Rescous
may
be
retorned
without
Vi
&
armis
?
But
this
Case
is
more
truly
reported
by
Rolls
.
Retorn
quasht
.
If
a
Sheriff
retorn
,
That
he
by
force
of
a
Capias
took
the
Body
of
J.
S.
&
ipsum
habuit
in
Custodia
quousque
J.
D.
&
J.
N.
Vi
&
armis
such
a
day
,
insultum
fecer'
in
W.
S.
&
W.
N.
his
Bayliffs
,
&
praedict
.
J.
S.
adtunc
&
ibidem
è
custodia
sua
rescusser'
&
praedict.
J.
S.
seipsum
rescussit
.
This
is
not
a
good
Retorn
,
because
it
doth
not
shew
that
the
Bayliffs
had
any
Authority
to
Intermeddle
:
And
to
lay
a
Rescous
without
Vi
&
armis
is
not
good
;
and
the
Vi
&
armis
goes
to
the
first
Clause
only
,
Pasch.
3
Car.
1.
Wilcox's
Case
,
2
Roll.
Abr.
457.
The
retorn
of
a
Rescous
was
quasht
for
these
Exceptions
:
1.
It
is
said
,
Feci
Warrantum
meum
Thomae
Taylor
;
and
does
not
say
,
Tho.
Taylor
was
his
Bayliff
.
2.
He
doth
not
say
,
for
what
Cause
he
made
his
Warrant
:
And
so
it
appears
not
,
whether
it
was
lawful
or
not
,
Stiles
Rep.
159.
In
a
Cap.
Utlagat
.
before
Judgment
,
the
Sheriff
retorned
,
That
J.
S.
and
J.
N.
rescoused
the
party
.
It
s
good
without
addition
:
For
no
Statute
nor
Book
will
compel
the
Sheriff
to
give
Additions
in
this
Case
.
And
the
Rescousers
which
were
present
were
Committed
to
the
Fleet
,
Winch.
Rep.
p.
10.
If
the
Sheriff
retorn
,
That
the
party
himself
,
simulcum
J.
S.
&
J.
N.
made
the
Rescous
.
It
was
said
it
was
not
good
;
because
there
is
not
any
Averment
that
J.
S.
and
J.
N.
rescued
him
.
And
if
it
Insensible
Retorn
.
had
been
,
that
J.
S.
simulcum
N.
rescusserunt
A.
it
is
not
good
against
J.
S.
because
it
is
rescusserunt
,
which
is
Insensible
,
Mich.
14
Car.
1.
B.
R.
Retorn
of
a
Rescous
was
excepted
to
,
because
Res●ue
by
several
retorned
.
it
is
said
quod
adtunc
è
custodia
ballivi
ceperunt
&
rescusserunt
;
and
doth
not
say
,
&
quilibet
eorum
rescussit
.
Sed
non
allocatur
:
For
it
shall
be
intended
all
of
them
did
it
;
and
tho'
their
Fines
are
several
,
their
Offence
shall
not
be
intended
so
,
2
Keb.
436.
Le
Roy
versus
Suffeild
.
Rescous
was
retorned
by
a
Sheriff
upon
Arrest
by
special
Bayliffs
hâc
vice
,
(
scilicet
)
That
Cooke
and
seven
others
made
Assault
upon
the
Bayliffs
,
&c.
and
the
party
Arrested
cepit
&
abduxit
,
where
it
should
be
ceperuns
&
abduxerunt
.
Per
Cur
▪
The
Retorn
is
good
against
Cooke
,
and
void
against
the
rest
;
and
Cooke
(
against
whom
the
Capias
issued
)
was
admitted
by
his
Attorney
to
make
fine
,
which
was
6
s.
8
d.
Lit.
Rep.
p.
2.
A
Bayliff
of
a
Liberty
hath
Retorn
of
Writs
,
Rescue
from
a
Bayliff
of
a
Liberty
,
how
to
be
retorned
.
and
therefore
a
Rescous
made
from
him
must
be
retorned
,
to
be
out
of
his
hands
.
But
a
Rescous
made
from
the
Sheriffs
Bayliffs
,
must
be
expressed
to
be
out
of
the
hands
of
the
Sheriffs
Bayliff
;
for
the
Bayliff
is
but
the
Sheriffs
Servant
.
But
as
to
this
last
,
it
is
not
Law
,
vide
supra
,
Stile's
Rep.
417.
The
Retorn
being
made
by
the
Bayliffs
of
a
Franchise
,
and
saying
è
custodia
sua
,
is
not
good
,
unless
he
saith
meâ
,
2
Keb.
177.
Le
Roy
versus
Claypoole
.
The
Sheriff
made
a
Warrant
Ballivis
suis
,
to
arrest
such
a
man
,
and
the
Bayliff
of
the
Liberty
retorns
a
Rescous
;
yet
it
s
good
,
Marsh
.
Rep.
p.
25.
R.
and
W.
were
retorned
by
the
Sheriff
,
to
have
made
a
Rescous
upon
such
a
Bayliff
,
to
whom
he
directed
his
Warrant
to
execute
his
Writ
.
Per
Cur.
This
Retorn
is
insufficient
,
because
it
doth
not
appear
that
the
Bayliff
had
Retorna
brevium
,
which
ought
always
to
be
mentioned
Rescue
from
the
Bayliff
of
a
Liberty
how
to
be
R●torn●d
by
the
Sher●ff
.
on
the
Sheriffs
Retorn
.
And
this
must
be
so
,
if
he
retorn
it
as
the
Retorn
of
a
Liberty
:
But
here
in
the
principal
Case
he
retorns
it
in
his
own
Name
,
wherefore
it
shall
be
intended
it
was
his
own
Bayliff
;
and
tho'
he
name
him
in
his
Retorn
,
as
Bayliff
of
a
Liberty
,
yet
that
is
but
a
void
addition
,
Cro.
El.
780.
Lady
Russel
and
Wood.
Tho'
the
Sheriff
arrests
a
man
within
a
Liberty
in
the
same
County
of
which
he
is
Sheriff
,
and
the
Prisoner
is
rescued
,
yet
the
Rescous
is
unlawful
;
because
the
Arrest
is
good
,
and
it
s
no
Offence
unless
it
be
to
the
Lord
of
the
Liberty
,
Yelv.
p.
51.
Winch's
Case
,
cited
in
Woolfreston's
Case
.
Retorn
of
a
Rescous
or
Mean
Process
was
Retorn
of
Rescous
on
mean
Process
.
quasht
,
because
it
saith
ad
Largum
ivit
quo
voluit
,
and
not
ad
Largum
quo
voluit
ire
permiser'
,
2
Keb.
318.
Le
Roy
versus
Lisle
.
Forms
of
Retorns
of
Rescous
,
vid.
Dalton
215
,
216.
Rescous
.
Of
Laying
the
Action
,
Declaration
and
Pleadings
.
A
Warrant
was
from
the
Sheriffs
to
the
Bayliffs
of
the
Liberty
of
Pomfret
,
who
did
Execute
it
,
and
there
was
a
Rescous
:
And
the
By
Bayliff
of
a
Liberty
.
Bayliff
may
have
the
Action
against
the
Rescuers
in
his
own
Name
;
but
he
failed
in
proving
it
to
be
a
Liberty
,
and
was
Nonsuited
,
&c.
And
Note
,
He
was
put
to
it
first
to
prove
the
Liberty
by
Records
.
Foster
and
Legard's
Case
at
Yor●
Assizes
.
B.
brought
out
a
Latitat
tempore
Eliz.
versus
E.
Arrest
in
one
Kings
time
,
and
Rescous
in
anothers
who
was
served
in
the
time
of
King
James
,
and
E.
rescued
himself
,
and
the
Rescue
was
retorned
by
the
Sheriff
of
Essex
.
Per
Cur.
This
is
good
;
for
a
Latitat
is
within
the
Statute
of
1
Ed.
6.
and
is
not
lost
or
abated
by
the
Demise
of
the
Queen
:
For
it
s
not
any
Original
Writ
,
but
is
in
the
nature
of
an
Execution
,
grounded
on
a
Record
precedent
,
viz.
upon
a
Bill
of
Middlesex
,
so
that
the
Latitat
issues
upon
a
Suit
depending
;
and
the
Latitat
,
the
nature
of
it
▪
Arrest
was
good
,
and
so
the
Rescous
,
Yelv.
Everard
and
Blach
.
In
the
Declaration
the
time
of
the
Arrest
must
How
to
declare
.
be
shewed
upon
which
the
Rescous
is
supposed
to
be
made
;
and
it
must
be
shewed
,
that
the
Party
Rescoused
was
in
Custody
of
the
Serjant
,
or
Sheriff
from
whom
he
was
rescued
,
Stiles
Rep.
432.
Gough
and
Cann
.
The
Plaintiff
Declares
,
Whereas
one
S.
was
indebted
to
him
by
Bond
in
300
l.
and
for
Non-payment
he
Sued
a
Latitat
out
of
the
King-Bench
directed
to
the
Sheriff
of
,
&c.
to
Arrest
him
,
retornable
at
such
a
day
,
intending
upon
his
appearance
,
and
Bail
put
in
according
to
the
Course
of
the
Court
,
to
Declare
against
him
,
(
and
shews
the
Course
and
Custom
of
the
Court
,
that
he
upon
appearance
should
put
in
good
Bail
,
that
if
Judgment
were
had
against
him
he
should
satisfie
the
Condemnation
,
or
render
his
Body
in
Execution
)
That
he
delivered
the
Writ
to
the
Sheriff
of
Nott'
,
who
made
a
Warrant
to
the
Bayliff
of
the
Kings
Liberty
of
Newark
to
execute
it
;
which
Warrant
was
delivered
to
the
L.
Deputy
of
the
Lord
Burleigh
,
Ballivi
Libertat'
Domini
Regis
Wapentagij
sui
de
Newark
;
who
by
force
thereof
Arrested
the
said
S.
That
the
Defendant
rescued
him
out
of
the
Custody
of
the
said
Deputy
,
and
he
Escaped
,
&c.
Errors
moved
in
the
Exchequer
Chamber
.
First
,
Because
the
Custom
of
the
Kings-Bench
is
alledged
to
be
,
that
if
any
one
Arrested
comes
sub
Custodia
Vicecomit
'
,
he
s●all
put
in
Bail
,
which
Custom
of
the
Court
of
putting
in
Bail
.
is
not
so
,
for
he
shall
be
in
Custod
'
Marr
'
and
no
Declaration
can
be
against
him
sub
Custodia
Vicecomitis
.
But
non
allocatur
,
that
which
is
alledged
of
the
Custom
of
the
Court
is
Idle
.
Secondly
,
It
is
said
,
he
was
rescued
from
That
he
was
rescued
from
the
Deputy
of
the
Bayliff
of
a
Liberty
,
good
.
Difference
between
Action
on
the
Case
,
and
Retorns
and
Indictments
of
Rescues
.
the
Deputy
of
the
Bailiff
;
where
it
ought
to
have
been
from
the
Baliff
himself
,
or
from
the
Sheriff
:
Sed
non
all●cat
'
,
for
there
is
a
diversity
in
this
Case
,
which
is
an
Action
on
his
Case
,
wherein
he
shall
shew
the
Truth
,
as
in
rei
veritat
'
it
is
,
and
not
as
it
is
upon
the
Retorns
of
Rescues
and
Indictments
,
which
say
it
is
done
to
the
Sheriff
or
Bayliff
himself
,
Cro.
Jac.
241
Kert
and
Ellwis
.
Like
the
Case
of
Burgh
and
Apleton
Sheriff
of
Essex
,
Lanes
Rep.
70.
Mesme
Case
.
In
that
Case
it
was
declared
,
That
the
Bayliff
of
a
Liberty
arrested
the
Party
,
and
delivered
him
to
the
Sheriffs
Deputy
,
and
that
he
rescued
him
from
the
Sheriffs
Deputy
,
Dyer
244.
And
Judgment
pro
Querente
in
that
Case
,
and
in
Lane's
Rep.
p.
70.
Burgh
and
Apleton's
Case
,
in
the
same
Case
saith
,
that
the
course
of
the
Kings-Bench
is
always
so
in
Retorn
of
a
Rescous
,
to
be
out
of
the
hands
of
the
Deputy
Bayliff
;
notwithstanding
Dyer
7.
El.
241.
And
the
Declaration
was
held
good
,
that
he
sued
an
Alias
Capias
,
without
mentioning
a
Latitat
,
before
this
Arrest
was
made
by
the
Deputy
Bayliff
of
Newark
.
But
the
main
Question
was
,
Because
it
doth
not
appear
,
that
the
Bayliff
had
a
Power
in
his
Patent
to
make
a
Deputy
Bayliff
.
No
Escape
upon
a
Tortious
Arrest
.
The
Action
is
brought
in
Suffolk
against
the
Sheriff
of
Suffolk
,
for
Arresting
the
Defendant
in
the
first
Action
upon
a
Capias
Utlegat
'
and
suffering
him
to
Escape
,
and
the
Defendant
in
the
first
Action
is
named
of
S.
in
Com'
Norfolk
,
and
the
Arrest
is
supposed
apud
S.
praed
'
so
the
Arrest
is
supposed
in
the
County
of
Norfolk
,
and
then
it
is
Tortious
,
and
there
is
not
any
Escape
thereon
.
Per
Curiam
,
it
s
an
incurable
Error
,
Cro.
Eliz.
887.
Eden
and
Floyd
.
In
Action
or
Case
on
a
Rescous
,
The
Plaintiff
Declaration
of
Arrest
at
L.
and
rescue
at
W.
the
same
day
(
being
200
miles
distant
yet
not
Error
.
declares
,
that
A.
was
indebted
to
him
by
Obligation
of
20
l.
and
that
he
Sued
a
Writ
against
him
directed
to
the
Sheriff
of
Cornwal
,
to
take
A.
&c.
and
that
the
Sheriff
1
Oct.
6.
Car.
Arrested
him
at
L.
in
Com'
Cornub
'
and
after
the
Defendant
at
Westminster
,
the
praed'
1
die
Octob.
rescued
him
out
of
the
Custody
of
the
Sheriff
;
and
on
non
culp
'
Verdict
and
Judgment
vers
.
Quer
'
he
brought
Error
and
Assigned
this
for
Error
,
for
that
it
was
impossible
he
should
be
arrested
at
L.
and
the
same
day
be
rescued
at
Westm'
(
200
Miles
distant
,
)
yet
the
Court
will
not
intend
it
to
be
impossible
.
But
however
,
see
what
Reasons
the
Plaintiff
shall
have
to
assign
Error
on
his
own
Declaration
,
1
Rolls
Ab.
523.
Kendal
and
Kendal
.
Trespass
and
Assault
laid
and
tried
in
Somersetshire
,
the
Defendant
justified
by
Warrant
to
the
Sheriff
of
Dorset
,
and
that
the
Plaintiff
endeavoured
to
rescue
himself
,
and
Issue
de
injuria
sua
propria
.
Gold
after
Verdict
prayed
Judgment
,
because
within
the
words
of
16
and
17
Car.
2.
c.
8.
there
being
three
Judgments
in
the
Point
.
Wise
and
Adderly
in
C.
B.
Trin.
26
Car.
2.
Croft
and
Tryal
shall
be
where
the
cause
of
Action
ariseth
.
Winter
,
and
Croft
and
Bays
:
But
the
Court
were
not
satisfied
with
these
Judgments
,
and
resolved
that
the
Statute
intended
the
Tryal
where
the
cause
of
Action
ariseth
.
But
there
was
a
Replead
'
,
because
the
Defendant
Traversed
absque
h●c
,
that
he
was
Guilty
aliter
vel
alio
modo
.
The
reply
was
he
was
Guilty
aliter
&
alio
modo
,
which
was
a
wild
Issue
,
3
Keb.
552
,
612
,
Masters
and
Wood.
Pleading
.
In
Action
on
the
Case
on
Escape
upon
mean
Diversity
between
pleading
Rescous
in
Debt
on
Escape
.
Averment
.
Process
.
Defendant
Pleads
a
Rescous
ever
since
,
6
Car.
1.
It
hath
been
held
a
good
Plea
.
Per
Cur'
If
it
be
retorned
,
it
s
a
good
Plea
,
and
it
need
not
be
averred
in
the
Plea
that
it
was
retorned
.
But
in
Debt
on
Escape
it
s
no
Plea
,
3
Keb.
513.
Hill
and
Mountague
Bayliff
of
West
.
In
Action
on
the
Case
for
a
Rescous
one
may
If
not
Guilty
may
be
pleaded
to
the
Sheriffs
Retorn
of
Rescous
.
Traverse
,
&c.
but
Quaere
,
if
not
Guilty
may
be
pleaded
to
the
Sheriffs
Retorn
of
a
Rescous
,
1
Keb.
258.
Rest
.
entr'
580.
le
Roy
versus
Mayor
of
Hereford
.
Scire
fac
'
to
have
Execution
of
a
Judgment
in
Debt
.
Defendant
Pleads
,
That
at
another
time
the
Plaintiff
had
sued
Execution
by
Capias
ad
satisfaci●nd
'
,
and
that
he
was
taken
thereupon
.
Plaintiff
replies
,
True
it
is
,
he
sued
a
Ca.
sa
.
and
the
Defendant
was
taken
thereupon
,
but
he
presently
rescued
himself
and
escaped
.
Replication
is
good
,
As
there
is
no
cause
for
the
Defendant
to
to
have
Audit'
Querela
when
he
is
escaped
and
taken
again
,
unless
it
be
for
a
voluntary
permission
by
the
Sheriff
,
so
there
is
not
any
bar
for
the
Plaintiff
to
have
new
Execution
;
And
tho'
it
s
no
good
Retorn
on
a
Ca.
sa
.
that
the
Defendant
rescued
himself
(
for
the
Sheriff
at
his
own
peril
ought
to
have
kept
him
)
nor
any
Plea
in
Debt
on
Escape
;
yet
the
Party
himself
shall
never
take
advantage
of
his
own
Tortious
Act.
And
Scire
fac
'
after
the
year
is
well
maintainable
,
Cro.
Car.
240
,
255.
Robinson
and
Cleyton
.
Venue
.
Verdict
.
Action
on
the
Case
on
Rescous
is
out
of
the
Common
Rules
of
the
Court
to
alter
the
Venue
.
But
it
s
in
the
discretion
of
the
Court
on
circumstances
to
alter
it
,
as
Action
brought
against
a
Bankrupt
may
be
brought
in
the
County
,
or
here
where
the
Commission
is
awarde●
▪
Where
a
Man
may
lawfully
rescue
himself
,
1
Keb.
346.
Where
a
Man
may
rescue
him self
and
where
not
.
There
is
a
difference
between
a
Warrant
of
Record
,
and
a
Warrant
or
Authority
in
Law
,
for
if
a
Capias
be
awarded
to
a
Sheriff
to
Arrest
a
Man
for
Felony
,
albeit
the
Party
be
innocent
,
yet
cannot
he
make
Rescous
.
But
if
the
Sheriff
will
by
Authority
which
the
Law
gives
him
Arrest
any
Man
for
Felony
who
is
not
Guilty
,
he
may
rescue
himself
,
Coke
1
Ins●
.
161.
a.
Note
,
Four
Nobles
Fine
,
is
a
general
Fine
imposed
for
a
Rescuer
,
Sir
Thomas
Jones
p.
198.
In
Debt
sur
Escape
versus
Vic.
Plaintiff
declares
,
That
J.
S.
and
his
Wife
were
in
Execution
,
and
that
she
escaped
.
On
nil
debet
special
Verdict
sound
,
that
the
Baron
was
in
Execution
and
that
he
escaped
;
and
further
,
that
the
Wife
was
not
taken
in
Execution
,
(
being
for
Debt
contracted
before
Coverture
.
)
Yet
Judgment
pro
Quer.
the
Verdict
was
not
in
the
whole
persuant
to
the
Declaration
,
because
they
found
the
Hubband
Escaped
,
1
Siderfin
5.
Roberts
and
his
Wife
against
Herbert
.
In
Action
on
the
Case
upon
a
Rescous
and
Escape
:
The
Jury
find
the
De●t
due
to
the
Plainti●●
,
the
prosecuting
the
L●●itat
for
this
Cause
,
the
making
the
Warrant
hereupon
to
the
Sheriff
,
&c.
Cro.
Jac.
485.
Hodges
and
Mark.
CHAP.
XXI
.
Of
Escapes
.
Some
Maxims
and
Diversities
premised
.
Escapes
,
as
to
Mean
process
,
and
as
to
Execution
.
What
shall
be
or
amount
to
an
Escape
of
a
Prisoner
out
of
Execution
,
or
not
.
Of
Escapes
in
respect
of
the
Old
and
New
Sheriff
,
and
of
the
Prisoners
being
▪
delivered
over
.
What
thing
or
act
shall
excuse
an
Escape
,
or
in
what
Cases
the
Sheriff
or
Gaoler
shall
not
be
Answerable
for
an
Escape
.
Of
Erroneous
Process
.
Where
the
Escape
of
one
shall
not
be
the
Discharge
of
the
other
;
and
where
the
oiher
shall
have
Audita
Querela
,
or
not
.
Actions
of
Debt
,
or
on
the
Case
,
by
the
party
against
the
Sheriff
for
an
Escape
,
and
who
shall
have
such
Action
.
To
whom
it
shall
be
said
an
Escape
,
or
not
,
at
Election
.
Of
Escapes
.
ESCAPE
is
where
one
that
is
Arrested
,
or
Imprisoned
on
the
Arrest
,
comes
to
his
Liberty
before
he
is
delivered
by
Order
of
Law
.
But
before
I
treat
of
Escapes
,
it
will
be
very
advantagious
for
the
better
understanding
thereof
,
to
set
down
some
few
Diversities
,
which
will
help
to
settle
ones
Judgment
in
reading
and
considering
the
Cases
ensuing
.
Diversities
.
1.
Between
a
Negligent
,
and
a
Voluntary
or
Permissive
Escape
.
A
Permissive
or
Voluntary
Escape
is
by
the
assent
,
privity
and
knowledge
of
the
Sheriff
,
Gaoler
,
&c.
Vide
postea
,
Where
the
Prisoner
may
be
retaken
or
not
.
2.
Between
an
Escape
on
Mean
Process
,
and
on
Execution
.
In
Escape
upon
the
Arrest
by
the
same
Process
;
as
a
Cap'
ad
respondend
'
,
the
Writ
ought
to
▪
surmize
ad
largum
ire
permisit
,
&
non
comparuit
ad
diem
;
because
the
party
was
Bailable
,
and
the
Sheriff
might
suffer
him
to
go
at
Large
.
Aliter
,
if
the
Arrest
be
upon
Execution
;
as
a
Cap.
ad
satisfac
.
There
permisit
ire
ad
largum
is
good
enough
.
Noy
72.
Sheriff
of
Nottingham's
Case
.
Vide
infra
.
3.
Between
an
Escape
for
Debt
,
and
for
Felony
or
Treason
.
4.
Between
an
Escape
by
a
Sheriff
or
Bayliff
,
and
an
Escape
caused
by
Rescousers
.
A
Rescouser
shall
be
charged
with
the
Debt
.
The
Sheriff
or
Bayliff
for
a
Negligent
Escape
shall
be
charged
with
the
Damages
only
in
the
same
Plea
,
as
the
Writ
supposeth
,
and
not
with
the
Debt
,
Lanes
Rep.
p.
70.
5.
Between
an
Escape
in
Fact
,
and
an
Escape
in
Law
:
As
where
a
man
may
be
in
Custody
without
actual
Arrest
.
6.
Between
Error
in
the
Proceedings
and
a
Nullity
of
the
Record
,
and
how
the
Sheriff
shall
take
advantage
of
either
.
7.
Between
an
Escape
in
the
Life
of
the
Testator
,
and
an
Escape
in
the
time
of
the
Executor
,
upon
Execution
in
the
time
of
the
Testator
.
Note
,
If
Judgment
be
Reversed
before
Action
of
Debt
brought
for
an
Escape
out
of
Execution
,
the
Action
is
gone
,
1
Sand.
38.
Jones
and
Pope
,
8
Rep.
142.
Dr.
Drury's
Case
.
Note
,
It
was
said
by
Twisden
,
in
16
Car.
2.
B.
R.
The
occasion
of
so
much
liberty
in
the
Marshalsea
is
,
that
the
Marshal
is
not
chargable
but
by
Bill
,
which
must
bear
Teste
in
Term
time
;
and
so
in
the
former
Term
the
party
is
not
Escaped
:
And
by
the
first
Day
of
the
later
Term
the
Prisoner
generally
is
to
return
to
Prison
,
and
so
no
remedy
for
the
party
,
1
Keb.
794.
Of
Escapes
as
to
mean
Process
.
When
a
man
is
in
Custody
of
the
Sheriff
by
Where
a
man
may
be
in
Custody
without
actual
Arrest
,
an
Action
for
the
Escape
shall
be
good
.
Process
of
Law
,
and
another
Writ
is
delivered
to
him
to
take
him
,
presently
in
the
Judgment
of
Law
,
he
is
in
his
Custody
without
actual
Arrest
,
quia
Lex
non
praecipit
inutilia
;
as
A.
recovered
in
Debt
;
Defendant
was
Outlawed
,
and
after
the
year
the
Plaintiff
procures
a
Capias
utlag
'
and
delivers
it
to
the
Sheriff
of
London
,
after
the
Serjeant
Arrests
the
Defendant
to
answer
I.
S.
before
the
Sheriff
,
the
Plaintiff
delivers
the
Sheriffs
Warrant
to
the
Serjeant
(
who
had
the
Defendant
in
his
House
)
to
Arrest
the
Defendant
,
the
Serjeant
refuseth
,
and
after
the
Sheriff
suffers
him
to
go
at
Large
;
Plaintiff
brought
Action
against
the
Sheriff
,
supposing
he
had
Arrested
him
,
and
Defendant
plead
non
permisit
,
&c.
5
Rep.
Frost
's
Case
.
By
Windham
in
Benskins
Case
,
by
Law
the
Bayliffs
ought
not
to
hurry
away
any
immediately
to
Prison
,
but
he
may
call
any
other
persons
in
aid
,
and
so
may
commit
the
Prisoner
to
them
.
1
Keb.
483.
Benskins
Case
.
If
by
assent
the
Sheriff
suffer
me
to
go
at
Large
no
Action
lies
for
the
Escape
.
Of
Escape
out
of
Execution
.
What
shall
be
said
an
Escape
of
a
Prisoner
out
of
Execution
for
Debt
or
not
.
If
a
man
in
Execution
be
suffered
to
go
at
Large
for
a
time
out
of
the
County
,
and
to
return
again
,
and
this
upon
Bail
or
Mainprise
,
yet
this
is
an
Escape
,
for
he
ought
to
be
kept
in
arcta
custodia
.
So
if
he
be
suffered
to
go
at
Large
to
any
place
within
the
County
,
and
to
return
again
,
so
if
he
be
suffered
to
go
at
Large
within
the
same
Town
where
the
Prison
is
,
it
is
an
Escape
,
tho
,
he
retorn
within
his
time
.
Plowd.
36.
b.
Platts
Case
.
3.
Rep.
44.
Boyntons
Case
.
Hob.
p.
173.
Earl
of
Essex
.
The
Case
was
,
A.
recovered
upon
a
Plaint
in
London
against
B.
and
had
him
in
Execution
in
Ludgate
.
A.
died
Intestate
.
B.
was
permitted
by
the
Keeper
of
Ludgate
to
go
at
large
into
Southwark
with
J.
S.
Servant
of
the
Keeper
,
and
by
the
Command
of
the
Keeper
.
The
Administrator
of
A.
brought
Debt
against
the
Sheriff
of
London
upon
the
Escape
.
Per
Cur.
It
was
an
Escape
.
He
that
waited
upon
him
into
Surry
could
not
be
Officer
to
the
Sheriff
of
London
,
and
so
he
had
no
Keeper
:
For
the
Power
of
a
Sheriff
does
not
extend
beyond
his
own
County
,
unless
in
Special
Cases
.
And
the
party
might
have
Action
of
False
Imprisonment
against
him
,
tho'
the
Baston
or
Servant
waited
on
him
there
;
being
Voluntary
,
Dyer
166.
accord
.
If
the
Sheriff
removes
his
Prisoner
out
of
the
County
without
being
commanded
,
'
it
s
an
Escape
,
and
if
he
remove
Prisoners
for
ease
and
delight
in
the
same
County
,
it
is
an
Escape
,
as
a
Prisoner
went
to
a
Bearbaiting
with
his
Gaoler
in
the
same
County
,
and
it
was
adjudged
an
Escape
;
so
if
the
Sheriff
permit
his
Prisoner
to
go
to
work
,
'
it
s
an
Escape
.
Hetly
.
p.
34.
To
suffer
a
Prisoner
to
walk
in
the
Town
,
tho
with
a
Keeper
,
is
an
Escape
,
unless
it
be
upon
a
Habeas
Corpus
from
a
Court
of
Justice
Hob.
p.
202.
If
the
Habeas
Corpus
bear
Teste
in
the
end
of
one
Term
retornable
in
another
,
this
Writ
will
not
warrant
the
Prisoner
to
go
at
Large
in
the
Vacation
,
Hob.
ibid.
Balden
and
Temple's
Case
;
for
tho
the
Sheriff
may
remove
his
Gaol
from
one
place
to
another
within
his
Bayliff-wick
,
yet
he
must
keep
it
and
his
Prisoners
within
it
,
and
not
suffer
them
to
go
at
Large
out
of
the
Prison
,
tho
he
himself
be
attending
on
them
,
without
an
Habeas
Corpus
from
some
Court
of
Justice
.
And
let
Keepers
of
Prisons
beware
when
they
receive
an
Habeas
Corp.
from
the
Chancery
or
any
other
Court
bearing
Teste
in
the
end
of
a
Term
to
have
the
Body
of
one
in
Execution
in
the
Court
the
next
Term
,
that
they
do
not
by
Colour
of
such
Writs
suffer
the
party
to
go
at
Large
all
the
mean
time
(
as
it
is
sometimes
practised
)
for
the
Writ
warrants
no
more
than
that
he
be
brought
out
of
Prison
only
for
that
purpose
,
and
only
for
so
much
time
as
in
Judgment
of
Law
as
shall
be
convenient
and
necessary
for
the
Execution
of
the
Writ
and
no
more
,
which
in
privilegiis
odiosis
must
ever
be
strict
.
By
Hales
in
Lutterel
and
Mosedells
Case
,
an
Habeas
Corpus
.
Hab.
Corpus
out
of
that
Court
to
which
the
party
is
a
Prisoner
doth
justifie
the
Gaoler
in
Assisetime
,
but
otherwise
if
it
be
out
of
any
other
Court
;
but
out
of
which
soever
,
if
the
Authority
of
the
Writ
be-Executed
either
in
Time
or
Place
at
the
pleasure
of
the
Gaoler
or
Prisoner'
its
an
Escape
,
as
being
carried
a
month
before
the
time
,
and
staying
a
month
after
;
also
the
Habeas
Corpus
being
at
a
place
and
day
certain
,
'
it
s
no
pretence
of
stay
at
any
other
places
,
or
ultra
,
to
search
Writings
or
to
speak
with
Witnesses
,
and
immediate
is
a
convenient
time
without
wilful
delay
,
so
is
Mod.
Rep.
116
tho
the
Sheriff
be
not
bound
to
bring
the
Prisoner
the
direct
way
,
yet
he
ought
not
to
carry
him
round
about
a
great
way
,
for
the
accomodation
of
the
party
,
if
he
do
it
is
an
Escape
.
3
Keb.
305.
Lutterell
and
Mosedell's
Case
,
and
Mod.
Rep.
116.
Mosedell's
Case
.
But
upon
this
Point
of
the
Prisoners
being
suffered
Diversity
.
to
go
at
Large
,
there
is
a
diversity
to
be
well
heeded
.
And
that
is
,
Between
one
in
Execution
within
the
Franchise
or
County
where
the
common
Gaol
is
,
where
the
Office
of
Sheriff
or
Bayliff
extends
,
for
there
if
the
Sheriff
,
&c.
assent
that
one
in
Execution
shall
go
out
for
a
time
,
altho
he
retorn
by
the
time
,
or
if
he
suffer
him
to
go
at
Large
by
Bayl
or
Baston
,
it
is
an
Escape
.
But
when
the
Sheriff
,
&c.
is
commanded
by
Writ
to
have
the
Body
at
Westminster
,
he
may
be
a
Keeper
of
him
in
another
County
as
in
the
Case
of
Bennet
and
Halsey
Mo.
—
3.
Rep.
44.
Boyston's
Case
.
The
Plaintiff
was
taken
in
Execution
by
the
Sheriff
of
B.
and
by
an
Hab.
Corp
,
he
was
brought
to
Smithfield
by
the
Gaoler
of
B.
and
there
at
eight
a
Clock
at
night
the
Prisoner
went
into
Southwark
and
none
with
him
,
and
there
continued
all
night
,
and
the
next
morning
he
Habeas
Corpus
ad
Recipiend
'
.
retorned
to
Smithfield
to
his
Keeper
,
and
there
continued
with
him
till
the
retorn
of
the
Writ
at
which
day
he
brought
him
to
the
Lord
Chief
Justices
Chamber
at
Serjeants
Inn
,
and
he
retorned
his
Writ
,
and
the
Chief
Justice
committed
him
to
the
Marshalsea
,
and
it
was
adjudged
to
be
no
Escape
in
the
Sheriff
,
so
in
Burton
and
Andrews
Case
.
Mo.
Rep.
Bennet
and
Halsey
.
For
the
effect
of
the
Writ
is
performed
to
have
him
there
at
the
day
,
and
the
Writ
does
not
command
him
to
bring
him
the
usual
way
,
but
to
have
his
Body
at
the
day
,
and
so
if
one
be
Sheriff
of
two
Counties
and
had
Arrested
two
by
two
several
Capias
in
two
Counties
,
he
may
bring
one
into
the
other
County
to
have
them
both
at
Westminster
,
and
may
bring
them
the
surest
way
.
If
a
Gaoler
on
an
Hab.
Corp
ad
Testificandum
Habeas
Corpus
ad
Testificand
.
bring
one
whom
he
had
in
Execution
to
be
a
Witness
,
by
Twisden
,
it
is
an
Escape
,
and
so
has
been
adjudged
.
In
Rolls
his
time
,
the
Court
was
moved
for
an
Hab.
Corp.
for
a
Prisoner
in
the
Kings-bench
,
that
he
might
be
a
Witness
in
a
Cause
in
Darby
Shire
at
the
Assises
,
but
it
was
denied
;
but
he
said
he
knew
it
granted
for
one
to
be
a
Witness
at
a
Tryal
at
Guild
Hall
,
but
at
the
Charges
and
Peril
of
the
party
,
for
whom
he
was
to
be
a
Witness
if
he
Escape
14
Car.
1.
B.
R.
And
in
24
Car.
2.
B.
R.
Adam's
Case
,
the
Court
granted
an
Habeas
corpus
for
a
Prisoner
in
the
Marshalsea
to
Testifie
in
a
Cause
in
Middlesex
.
But
Hale
Chief
Justice
said
,
He
would
never
grant
it
in
his
Chamber
,
being
but
a
private
Person
,
and
the
party
may
escape
,
which
would
be
remediless
,
Siderfin
p.
13.
Fitz-Jeffreys
.
If
one
be
in
Execution
in
the
Fleet
,
or
other
The
King
cannot
License
one
to
go
at
Large
.
place
,
at
the
Suit
of
the
King
,
or
of
a
Common
person
,
and
the
Warden
or
Gaoler
(
by
the
Command
of
the
Lord
Chancellor
or
Treasurer
)
suffer
him
to
go
into
the
Country
with
a
Keeper
to
gather
Money
,
the
sooner
to
pay
the
King
;
and
he
goes
accordingly
,
and
returns
to
Prison
again
:
yet
this
is
an
Escape
as
to
the
Common
person
;
for
the
King
himself
cannot
License
a
man
to
go
so
at
Large
,
Dyer
12
&
13
Eliz.
297.
If
one
be
in
Execution
at
the
Suit
of
the
King
in
the
Fleet
,
the
Warden
may
suffer
him
to
go
to
his
Counsel
with
his
Keeper
.
But
not
so
in
the
Case
of
a
Common
person
,
Savill's
Rep.
p.
29.
A
man
is
in
Execution
for
Debt
,
and
a
Woman
being
Warden
of
the
Fleet
marries
the
Prisoner
,
This
is
an
Escape
;
for
that
he
cannot
be
his
own
Prisoner
,
nor
a
Prisoner
to
his
Wife
.
So
if
the
Sheriff
or
Gaoler
marry
a
Woman
that
is
in
Execution
for
Debt
.
Sir
Gervas
Clifton's
Case
,
cited
1
Leon.
237.
in
Offley
and
Saltington's
Case
was
,
He
being
Sheriff
suffered
one
in
Execution
and
in
his
Custody
to
go
and
see
a
Play
;
and
the
same
was
adjudged
an
Escape
,
and
the
party
could
not
be
in
Execution
again
.
This
Case
was
referred
by
the
King
to
the
Habeas
Corpus
in
regard
of
the
Plague
.
Judges
,
Trin.
12
Car.
1.
Whether
in
regard
of
the
Plague
Habeas
corpora
may
be
granted
for
the
Prisoners
in
Execution
in
the
Prisons
of
the
Kings-Bench
and
Fleet
,
upon
Judgment
in
the
Common-Bench
and
Exchequer
;
and
it
was
Certified
by
them
to
the
Lord
Keeper
,
that
if
upon
Habeas
corpus
granted
the
Gaoler
suffers
the
Prisoners
to
go
at
Large
with
a
Keeper
or
Baston
,
that
this
is
an
Escape
,
and
that
no
Habeas
corpus
ought
to
be
by
the
Law
for
this
purpose
,
which
the
King
well
approved
of
.
And
in
primo
Caroli
the
Prisoners
in
the
Fleet
petitioned
the
Parliament
,
that
they
may
have
Habeas
corpora
in
the
Vacation
,
in
respect
of
the
great
Plague
in
London
;
but
the
Parliament
would
not
assent
to
it
,
because
against
the
Law
.
A
Capias
ad
satisfaciend
'
is
served
upon
one
,
who
Execution
served
upon
one
who
is
Prisoner
for
Felony
,
and
then
an
Escape
.
is
a
Prisoner
for
Felony
,
and
Indicted
,
and
Arraigned
,
and
found
Guilty
,
and
afterwards
Escapes
.
Debt
lies
against
the
Sheriff
;
for
the
Execution
was
well
served
upon
him
,
and
altho'
his
Body
was
at
the
Queens
pleasure
;
yet
he
shall
not
take
advantage
of
his
own
Tort
,
but
he
shall
answer
the
Suit
or
Execution
of
a
Common
person
,
Cro.
El.
165
,
517.
1
Leon.
87
,
236.
Ognel
and
Paston
.
The
Sheriff
delivers
the
Prisoner
upon
a
void
Delivery
upon
a
void
Audita
Querela
is
no
Escape
.
Audita
querela
.
This
is
no
Escape
,
and
there
the
Prisoner
may
be
taken
again
in
Execution
,
Mo.
344.
n.
479.
Collins's
Case
.
But
if
a
Scire
facias
had
in
it
the
words
of
Audita
querela
,
it
s
against
Law
,
and
its
an
Escape
if
the
Sheriff
deliver
the
Prisoner
upon
it
,
1
Roll.
Rep.
383.
A
forged
Warrant
of
Attorney
for
Satisfaction
One
delivered
upon
a
forg'd
Warrant
of
Attorney
for
satisfaction
is
delivered
into
the
Office
where
one
is
in
Execution
,
and
the
Marshal
lets
him
go
.
It
s
an
Escape
,
unless
the
Attorney's
hand
were
to
it
,
or
a
Supersedeas
delivered
,
1
Keb.
873.
Collet's
Case
.
If
a
man
recover
against
Baron
and
Feme
,
and
Debt
lies
upon
Escape
of
the
Wife
.
take
both
in
Execution
,
and
after
the
Wife
is
suffered
to
Escape
;
tho'
the
Husband
continue
in
Prison
,
yet
Debt
lies
upon
this
Escape
against
the
Sheriff
,
in
which
all
the
Debt
shall
be
recovered
;
for
this
was
the
Debt
of
the
Wife
,
and
she
is
as
fully
in
Execution
as
the
Husband
:
And
Debt
lies
on
it
as
well
as
Action
on
the
Case
.
So
if
the
Feme
be
only
taken
in
Execution
,
2
Bulstr.
320.
1
Roll.
Abr.
810.
Dr.
Sutloff
and
Sir
G.
Reynel
,
3
Bulstr.
150.
1
Roll.
Rep.
204
,
205.
Cro.
Jac.
657.
Whiting
and
Sir
George
Reynel
.
Where
the
Sheriff
shall
be
so
chargeable
with
a
Prisoner
,
as
to
Escapes
;
Where
the
Action
will
lye
,
and
in
what
Cases
not
.
The
Entry
of
a
Committitur
upon
the
Roll
In
respect
of
the
Entry
on
the
Roll
of
Committitur
.
shall
not
charge
the
Marshal
for
Escape
(
if
there
be
any
after
)
for
then
it
should
be
in
the
power
of
every
Attorney
to
charge
the
Marshal
.
A
Committitur
was
Ruled
to
be
vacated
,
to
the
intent
the
Plaintiff
should
be
at
liberty
to
take
out
what
Execution
he
will
.
But
if
the
party
after
such
Committitur
entred
be
in
the
Marshals
Custody
,
and
then
escape
,
the
Marshal
shall
be
charged
for
Escape
,
Siderfin
220.
Conny
and
Jacob.
Therefore
let
the
Student
beware
of
the
Opinion
in
Keble
(
1
Keb.
775.
)
in
this
Case
of
Conny's
,
where
he
tells
you
,
the
Entry
of
a
Committitur
alone
is
sufficient
to
charge
the
Marshal
,
as
in
Execution
for
Escape
of
a
Prisoner
,
without
actual
proof
of
his
being
in
Execution
.
But
the
better
Opinion
is
in
1
Keb.
375.
in
Pettyware
and
Hamson's
Case
.
The
Course
has
been
always
of
late
,
that
in
case
Committitur
be
entred
on
Record
,
yet
it
must
be
proved
he
was
in
Custody
since
that
time
;
because
it
is
the
usual
Course
to
enter
a
Committitur
against
every
Defendant
,
tho'
he
be
upon
Bail
.
Wherefore
the
Court
ordered
the
Marshal
to
shew
,
whether
one
were
in
Custody
or
not
.
Capias
ad
satisfaciend
'
was
delivered
to
the
Sheriff
versus
J.
S.
and
after
the
Sheriff
did
arrest
J.
S.
by
force
of
a
Capias
Utlagat
'
,
and
then
the
party
in
the
Capias
came
to
the
Sheriff
,
and
prayed
that
the
party
may
remain
in
Execution
for
his
Debt
also
.
And
the
Sheriff
suffers
him
to
go
at
Large
,
and
upon
both
Writs
Retorned
Non
est
inventus
.
Per
Cur.
The
Sheriff
was
not
bound
in
point
of
Escape
to
detain
the
Prisoner
for
the
Debt
of
the
Plaintiff
in
Escape
;
and
it
is
not
like
where
one
is
in
the
Fleet
for
Execution
,
there
,
if
other
Condemnations
in
other
Courts
be
Notified
to
the
Warden
of
the
Fleet
,
he
shall
be
chargeable
with
them
all
,
1
Leon.
263.
Scire
facias
lies
not
on
the
Escape
of
a
Bail
,
if
no
Scire
fac
'
issued
out
against
him
;
for
the
Sureties
ought
not
to
be
taken
in
Execution
presently
.
The
Condition
of
Recognizance
of
Sureties
is
,
That
they
bring
in
the
Defendant
,
if
he
be
Condemned
,
or
to
pay
the
Debt
.
Now
if
no
Scire
fac
'
issues
out
against
him
,
the
Surety
being
taken
cannot
plead
the
Release
of
the
Plaintiff
,
or
the
death
of
the
Defendant
in
his
Discharge
,
as
he
might
do
upon
Scire
facias
;
2
Leon.
p.
29.
Devered
and
Ratcliff
.
Of
Escapes
as
to
the
Old
and
New
Sheriffs
,
and
Delivering
over
.
The
Sheriffs
of
London
by
Indenture
deliver
Escape
in
Law
.
over
J.
S.
(
in
Execution
at
the
Suit
of
A.
and
B.
severally
)
and
only
mention
the
Execution
of
A.
J.
S.
escapes
;
B.
brought
Debt
against
the
ancient
Sheriffs
on
this
Escape
.
It
well
lies
:
For
he
cannot
be
in
Custody
of
the
New
Sheriffs
for
this
Execution
;
because
they
were
not
charged
with
this
Execution
,
and
the
fault
was
in
the
Old
Sheriffs
that
they
omitted
this
Execution
of
the
Plaintiff
in
their
Indenture
;
and
the
Escape
began
eo
instante
that
the
Ancient
Sheriff
delivered
the
Prisoner
to
the
New
,
for
then
they
cease
to
have
the
Custody
of
him
,
and
although
he
remain
in
the
Rules
of
the
Prison
,
it
s
an
Escape
in
Law
,
3
Rep.
Westby's
Case
.
The
Old
Sheriff
Arrested
one
upon
a
Latitat
,
and
at
the
day
Retorned
Languidus
,
&c.
and
afterwards
in
exitu
ab
Officio
suo
delivered
him
to
the
New
Sheriff
,
as
a
Prisoner
for
this
Cause
,
and
the
New
Sheriff
suffered
him
to
go
at
Large
.
This
is
an
Escape
in
the
New
Sheriff
,
and
an
Action
of
the
Case
lies
against
him
;
and
tho'
the
other
Sheriff
retorned
Languidus
,
&c.
yet
this
is
not
material
to
the
Plaintiff
,
he
remains
always
in
Prison
,
Cro.
Jac.
380.
King
versus
Sir
Eusebius
Andrews
.
If
the
Sheriff
takes
a
man
in
Execution
,
and
after
a
New
Sheriff
is
made
;
and
before
the
other
Sheriff
delivers
over
,
the
party
who
was
in
Execution
escapes
.
The
New
Sheriff
is
not
chargable
for
this
Escape
,
but
the
Old
Sheriff
;
for
the
New
Sheriff
is
not
chargable
with
any
Prisoner
before
delivery
to
him
,
2
Roll.
Abr.
457.
Sheriff
Skinner's
Case
.
One
in
Execution
is
willingly
let
go
out
of
Prison
by
the
Gaoler
,
and
then
came
into
the
Gaol
again
;
then
a
New
Sheriff
is
,
and
then
he
makes
Escape
.
By
Hobart
,
on
a
Trial
at
Guild-Hall
,
the
New
Sheriff
cannot
be
chargable
with
him
,
nor
answerable
for
him
,
as
in
Execution
;
for
the
Execution
by
such
Escape
was
utterly
discharged
.
Neither
can
two
Sheriffs
be
Answerable
simul
&
semel
for
two
Escapes
,
out
of
one
and
the
same
Execution
at
the
same
time
,
Hob.
202.
Sheriff
of
Essex's
Case
.
One
taken
in
Execution
on
Ca.
sa
.
by
the
Under-sheriff
,
he
took
Money
of
him
for
the
Execution
and
let
him
go
:
Then
the
Sheriff
dies
and
a
New
Sheriff
is
,
and
the
same
Under-sheriff
;
and
a
new
Ca.
sa
.
is
taken
out
against
the
party
,
upon
which
he
was
Arrested
again
,
and
escaped
.
By
Hobart
,
the
New
Sheriff
is
not
Answerable
,
the
second
taking
in
Execution
being
never
lawful
,
Hob.
p.
202.
If
the
Old
Sheriff
keep
any
Prisoner
after
he
is
discharged
of
his
Office
,
it
s
an
Escape
,
2
Leon.
54.
Smallman
and
Lane
.
If
one
taken
upon
a
Cap
'
Escape
,
and
the
Sheriff
die
,
and
a
new
Sheriff
be
made
for
the
remainder
of
the
Year
;
then
the
same
person
is
taken
by
another
Cap
'
for
the
same
Cause
,
and
Escape
:
This
will
not
charge
the
new
Sheriff
,
Hob.
p.
202.
If
the
Prisoner
walk
abroad
and
returns
in
the
time
of
one
Sheriff
,
and
escape
in
the
time
of
another
Sheriff
,
this
is
no
Escape
in
the
time
of
the
second
Sheriff
,
Hob.
202.
A.
was
taken
in
Execution
in
the
time
of
the
New
Sheriff
shall
be
charged
in
Escape
upon
a
new
Execution
.
Old
Sheriff
,
and
then
escaped
,
and
afterwards
in
the
time
of
the
new
Sheriff
the
Plaintiff
again
sued
a
Scire
facias
against
A.
upon
the
said
Judgment
:
Upon
which
Execution
was
awarded
by
Default
,
and
thereupon
issued
a
Cap.
ad
sat
.
against
A.
by
which
he
was
taken
,
and
escaped
.
Per
Cur
'
,
The
new
Sheriff
shall
be
charged
;
for
tho'
A.
was
in
Execution
,
which
was
determined
by
Escape
in
the
time
of
the
Old
Sheriff
,
yet
when
new
Execution
was
awarded
against
him
upon
his
default
in
the
Scire
fac
.
the
same
shall
bind
the
Sheriff
,
out
of
whose
Custody
he
escaped
,
1
Leon.
pag.
3.
Gibbert
and
Sir
George
Hart.
What
thing
or
Act
shall
Excuse
an
Escape
,
or
in
what
cases
the
Sheriff
or
Gaoler
shall
not
be
Answerable
for
an
Escape
.
If
the
Sheriff
Arrest
a
man
upon
a
Latitat
or
On
Retorn
of
Rescous
on
Mean
Process
,
the
Sheriff
shall
be
excused
in
Action
of
Escape
.
other
mean
Process
,
and
the
Prisoner
is
Rescued
from
him
before
he
be
carried
to
Prison
,
and
the
Sheriff
retorns
the
Rescous
against
the
Rescousers
,
this
shall
excuse
the
Sheriff
in
Action
sur
case
upon
Escape
,
because
he
is
not
bound
neither
is
it
convenient
for
him
to
bring
a
Posse
comitat
.
with
him
to
serve
every
mean
Process
.
But
if
the
Sheriff
bring
him
to
the
Gaol
,
and
af●er
he
is
Rescued
out
of
Prison
,
and
he
retorns
the
Rescous
,
yet
this
shall
not
excuse
the
Sheriff
,
for
he
ought
to
keep
his
Gaol
at
his
Peril
.
But
if
the
Sheriff
takes
a
man
in
Execution
,
as
on
a
Capias
ad
satisfaciend
.
and
he
is
Rescued
before
he
brings
him
to
Prisou
,
tho
he
retorns
the
Rescous
,
yet
this
shall
not
excuse
him
,
for
that
he
is
to
take
a
Posse
Comitat.
and
the
party
cannot
have
a
new
Execution
.
Proby
and
Lumly
.
Now
let
us
see
whether
,
and
how
far
erroneous
Process
shall
excuse
the
Sheriff
.
Tho
the
Process
of
the
Court
be
Erroneous
,
yet
the
Sheriff
shall
not
be
chargable
on
Escape
;
as
if
first
Capias
be
by
a
wrong
name
,
and
the
Testatum
by
a
right
name
;
so
if
one
who
is
in
Execution
by
a
Capias
ad
satisfaciend
.
on
a
Recognizance
,
tho
the
Capias
is
erroneously
awarded
,
yet
the
Sheriff
is
Chargeable
.
Yet
this
is
not
Law
,
for
a
Capias
ad
satisfaciend
'
lies
on
a
Recognizance
,
as
in
Ognell
and
Pastons
Case
.
1
Leon.
2
Bulst.
256.
Keysar
and
Tirrel
.
So
of
a
Capias
awarded
without
a
Fi.
fac
.
Cro.
Eliz.
576.
Conyers
Case
.
Cro
Eliz.
188
Bushes
Case
.
So
that
he
is
not
to
take
advantage
of
Error
Diversity
.
in
the
proceedings
,
otherwise
it
is
where
he
can
alledge
a
nullity
in
the
Record
;
and
if
the
Court
award
a
Capias
where
it
lies
not
to
the
Sheriff
,
by
force
of
which
he
takes
the
party
,
and
then
suffers
him
to
Escape
,
he
shall
be
charged
,
for
he
is
not
to
dispute
the
Authority
of
the
Court.
Another
difference
is
,
where
the
Court
hath
Diversity
,
where
the
Court
has
Jurisdiction
of
the
Cause
,
and
where
not
.
Jurisdiction
of
the
Cause
and
where
not
;
where
the
Court
hath
Jurisdiction
,
and
doth
Misaward
Process
,
this
is
but
Error
:
But
if
the
Court
hath
no
Jurisdiction
and
doth
Misaward
Process
,
there
all
is
void
,
and
the
Sheriff
may
shew
this
in
discharge
of
himself
:
As
if
a
Formedon
be
commenced
Originally
in
B.
R.
or
an
Appeal
in
the
Common-Bench
,
all
is
void
,
and
no
Action
of
Escape
lies
against
the
Sheriff
;
as
Kingston
upon
Hull
is
a
limitted
Jurisdiction
,
and
they
hold
Plea
of
a
Bond
made
out
of
their
Jurisdiction
,
and
thereupon
a
Capias
was
awarded
against
the
Obligor
,
who
being
Arrested
on
it
,
Escapes
,
no
Action
lies
against
the
Sheriff
,
and
this
is
the
difference
in
the
Case
of
the
Marshallsea
.
But
this
is
more
fully
reported
in
Rolls
Abrig
.
2
Bulst
.
62.
Weaver
and
Clifford
,
Ognell
and
Parstons
Case
.
8.
Rep.
243.
Dr.
Drurys's
Case
.
Action
on
the
Case
is
brought
in
B.
R.
against
the
Officer
in
an
Inferior
Court
upon
Escape
,
if
the
Plaintiff
declare
that
he
brought
an
Action
against
I.
S.
in
the
said
Inferiour
Court
(
as
Kingston
upon
Hull
)
on
an
Obligation
made
at
Halyfax
in
Com'
Ebor
'
and
does
not
alledge
this
to
be
within
the
Jurisdiction
of
the
said
Inferiour
Court
,
and
upon
this
Judgment
was
given
and
Execution
granted
,
and
the
Defendant
took
him
in
Execution
and
suffered
him
to
Escape
,
and
upon
this
he
brings
his
Action
.
1
Rol.
Abrig
.
809.
Richardsan
and
Bernard
.
This
Declaration
is
not
sufficient
to
charge
the
Declaration
.
Tho
the
Action
be
Transient
,
yet
if
brought
in
Inferiour
Court
,
the
cause
of
Action
must
be
alledged
,
to
arise
there
.
Defendant
,
because
it
is
not
alledged
,
the
Obligation
was
made
within
the
Jurisdiction
of
the
Court
;
for
altho
the
Action
be
Transitory
,
yet
this
Inferiour
Court
had
a
Limited
Jurisdiction
of
things
arising
within
the
Jurisdiction
,
and
the
proceedings
there
were
coram
non
Judice
,
and
utterly
void
,
of
which
the
Officer
shall
take
advantage
in
this
Action
for
the
Escape
.
Upon
the
whole
we
may
see
that
the
Case
.
of
Warren
and
Clifford
is
misreported
in
Yel
.
p.
42.
where
't
is
said
,
it
was
held
by
three
Judges
that
the
Action
did
not
lie
,
because
he
was
not
a
Prisoner
by
the
course
of
Law
,
for
he
was
in
Execution
upon
a
Capias
ad
satisfaciend
.
on
a
Recognizance
,
which
lay
not
,
but
a
Sci.
fac
.
and
therefore
saith
that
Book
,
he
being
taken
by
Capad
satisfaciend
.
he
is
not
a
Prisoner
by
Course
of
Law
,
for
the
Law
has
not
ordained
any
such
means
to
Arrest
him
,
and
he
being
in
Custody
without
Warrant'
its
no
Escape
.
But
this
is
a
double
mistake
,
for
a
Capias
ad
satisfaciend
.
has
been
adjudged
to
lie
on
a
Recognizance
,
and
if
it
did
not
,
yet
'
its
but
Erroneous
Process
,
of
which
the
Sheriff
shall
not
take
advantage
.
In
Case
upon
Escape
against
the
Sheriff
of
Lancaster
for
suffering
one
M.
W.
to
Escape
out
of
Execution
;
and
shews
a
Recovery
against
him
in
B.
R.
and
Cap.
ad
satisfaciend
.
and
a
non
est
Invent
'
retorned
;
and
a
Testatum
that
he
concealed
himself
in
the
County
of
Lancaster
,
Erroneous
Process
,
because
the
Warrant
varies
from
the
command
to
the
Sheriff
of
Com.
pal.
Laneaster
.
and
a
Writ
was
awarded
to
the
Chancellor
of
the
County
Palatine
of
Lancaster
,
that
he
should
command
the
Sheriff
to
take
the
said
I.
M.
ad
sa●isfaciend
.
&c.
ita
quod
the
said
Chancellor
should
have
him
,
&c.
and
that
the
Chancellor
commanded
the
Sheriff
that
he
should
take
the
said
M.
ita
quod
the
Sheriff
should
have
him
coram
Justiciariis
,
&c.
and
the
Defendant
being
Sheriff
did
thereupon
Arrest
him
,
&c.
Error
was
brought
because
the
Writ
directed
by
the
Chancellor
to
the
Sheriff
,
was
not
warranted
by
the
Writ
directed
to
him
,
for
it
varies
from
the
command
,
for
it
ought
to
have
been
that
the
Sheriff
should
have
the
Body
before
the
Chancellor
,
ita
quod
that
he
should
have
him
before
the
Justices
,
Sed
non
allocat
'
for
tho
there
be
Error
in
the
Process
,
the
Sheriff
shall
not
take
any
advantage
thereof
,
but
having
suffered
him
to
Escape
he
is
responsible
to
the
party
.
Cro.
Jac.
288.
Burton
and
Eyre
.
So
the
Sheriff
shall
not
take
advantage
of
Error
in
the
Process
,
as
in
B.
R.
the
Plaintiff
had
Judgment
to
recover
more
than
was
due
to
him
.
2
Sand.
p.
100.
Jaques
and
Lockart
.
To
this
agree
Fitz.
Tit.
bar
.
pl.
253.
Debt
was
brought
against
a
Gaoler
for
Escape
,
who
said
the
Sheriff
did
not
deliver
him
lawfully
to
him
:
Process
.
discontinued
.
But
Per.
Cur.
he
is
not
to
meddle
,
whether
the
Sheriff
delivered
him
lawfully
to
him
.
So
21
Ed.
4.
23.
b.
Action
against
a
Gaoler
for
suffering
one
condemned
to
go
at
Large
,
'
it
s
no
Plea
to
say
that
the
Process
was
discontinued
before
the
Judgment
given
,
for
he
was
a
stranger
to
it
.
Dier
66.
15.
4
Rep.
84.
Southcotts
Case
.
If
the
Prison
be
broken
by
the
Kings
Enemies
,
Prison
broken
by
the
Kings
Enemies
shall
Excuse
the
Sheriff
,
not
if
done
by
Rebels
and
Traitors
.
Escape
by
sudden
force
shall
excuse
the
Sheriff
.
this
shall
excuse
the
Sheriff
from
Escape
,
for
the
Gaoler
could
not
resist
them
,
and
he
can
have
no
remedy
over
;
but
if
a
Prison
be
broken
by
Rebels
and
Traitors
within
the
Realm
,
so
as
the
Prisoners
Escape
,
this
shall
not
excuse
the
Escape
,
for
the
Gaoler
may
have
his
remedy
over
.
If
the
Prisoners
Escape
by
sudden
Fire
,
this
shall
excuse
the
Sheriff
,
for
it
is
the
Act
of
God
.
Dier
pl.
66.
Where
the
Escape
of
one
shall
be
a
discharge
of
the
other
or
not
,
and
where
the
other
shall
have
Audita
Querela
or
not
,
Vide
Supra
.
Two
are
bound
joyntly
and
severally
,
and
one
is
in
Execution
,
and
the
Gaoler
suffers
him
to
Escape
voluntarily
,
this
cannot
be
pleaded
by
the
other
,
for
it
is
no
discharge
of
the
Debt
,
and
by
consequence
the
Action
lies
against
the
other
;
now
where
two
are
bound
joyntly
and
severally
,
one
was
condemned
and
taken
in
Execution
,
and
after
the
other
was
sued
condemned
and
taken
,
the
first
Escapes
,
the
other
shall
not
have
Audita
Querela
:
Because
it
must
be
an
Execution
with
satisfactio
;
and
tho
the
first
may
have
Debt
on
Escape
against
the
Sheriff
yet
there
ought
to
be
satisfaction
in
Fact
before
Audita
Querela
lies
,
and
perhaps
the
Sheriff
is
worth
nothing
.
And
if
the
Defendants
were
sued
by
one
Writ
and
several
Praecipes
,
altho'
the
Entry
should
be
Quod
unica
fiat
Executio
,
this
is
intended
to
be
with
Satisfaction
;
for
he
shall
have
both
their
Bodies
.
But
if
two
are
taken
in
Execution
for
Debt
.
and
one
Escapes
,
Debt
lies
against
the
Sheriff
;
and
after
the
Debt
recovered
against
the
Sheriff
,
or
against
the
other
,
the
other
which
remains
in
Execution
shall
have
Audita
Querela
to
be
relieved
;
but
the
Audita
Querela
,
Body
taken
in
Execution
is
no
satisfaction
for
the
Debt
,
6
Rep.
86.
Blomfield's
Case
,
Cro.
Jac.
351.
Pendavis's
Case
,
Cro.
El
478.
2
Bulstr.
321.
And
so
is
Hobart
express
;
The
Escape
of
one
joynt
or
several
Obligor
,
where
both
be
in
Execution
,
shall
not
discharge
the
other
,
Hob.
p.
2.
59
,
60.
And
therefore
the
Escape
of
one
in
Execution
,
where
two
are
bound
in
a
Bond
,
is
no
Plea
to
the
Bond
;
and
tho'
he
escaped
by
the
voluntary
permission
of
the
Sheriff
,
so
as
the
Plaintiff
is
entituled
to
an
Action
against
the
Sheriff
,
yet
that
shall
not
deprive
him
of
his
Remedy
against
the
other
Obligor
:
But
if
he
had
pleaded
,
That
the
Sheriff
suffered
him
to
go
at
Large
by
the
License
of
the
Plaintiff
,
it
might
have
been
pleaded
in
Discharge
,
Cro.
Car.
75.
Whitacre
and
Hankinson
.
G.
and
A.
were
joyntly
bound
to
T.
in
a
Bond
of
7000l
.
The
Obligee
takes
several
Actions
,
and
had
two
several
Judgments
,
and
sued
both
to
Outlawry
,
and
A.
was
taken
upon
a
Cap.
Cap.
Utleg
.
Utlegat
.
by
the
Sheriff
of
D.
who
voluntarily
suffered
him
to
Escape
.
T.
brought
Debt
against
the
Sheriff
,
and
Recovered
and
received
satisfaction
,
and
proceeded
to
take
A.
but
A.
brought
Audita
Querela
:
And
he
failed
in
his
Declaration
,
because
the
Satisfaction
made
by
the
Plaintiff
to
the
Sheriff
,
was
not
Specially
pleaded
,
(
viz.
)
Time
and
Place
where
it
was
made
;
for
it
is
Issuable
,
and
it
may
be
made
after
the
Audita
Difference
between
Action
of
Debt
and
Case
.
Querela
purchased
.
But
if
T.
had
recovered
only
Damages
in
Action
of
Case
for
the
Escape
,
the
Plaintiff
should
have
had
no
Audita
Querela
;
but
here
he
recovered
his
Original
Debt
in
Action
of
Debt
;
grounded
upon
the
Escape
,
Mod.
Rep.
170.
Alford
and
Totnell
.
The
Escape
of
any
one
upon
a
Joynt
Judgment
Any
one
on
Joyn●
Execution
escapes
,
Debt
lies
for
the
whole
.
and
Execution
,
the
Debt
lieth
for
the
whole
;
especially
if
they
be
in
several
Prisons
,
as
5
Rep.
87.
Blomfield's
Case
:
Tho'
the
Duty
wholly
survived
by
the
Death
of
the
party
escaped
before
any
Action
brought
,
and
tho'
the
Executor
of
the
party
dead
is
discharged
.
But
if
the
Death
of
one
before
the
Action
brought
,
doth
discharge
the
Escape
.
By
Hales
and
Rainsford
it
doth
not
:
By
Wild
and
Twisden
it
doth
,
3
Keb.
305.
Lutterell
and
Mosedale
.
Of
Actions
on
the
Case
,
or
Debt
,
by
the
party
against
the
Sheriff
,
&c.
for
Escape
.
If
a
Suit
be
in
the
Admiralty
for
a
Matter
Where
to
b●
ought
arising
super
altum
Mare
;
and
upon
this
the
Defendant
is
in
Execution
and
escapes
,
the
Plaintiff
may
have
an
Action
for
this
Escape
in
B.
R.
Action
on
the
Case
for
Escape
lies
at
Common
Law
;
but
no
Action
of
Debt
lay
at
Common
Law
,
but
the
party
was
driven
to
his
Special
Action
on
the
Case
,
which
Action
was
grounded
on
a
Trespass
or
Tort
,
and
not
upon
any
Contract
in
Deed
or
Law
,
1
Roll.
Abr.
536.
Brightwight
and
Taylor
.
But
now
Action
of
Debt
lies
against
the
Sheriff
or
Gaoler
for
an
Escape
upon
the
Statute
W.
2.
c.
11.
&
1
R.
2.
c.
12.
1
R.
2.
c.
12.
gave
Debt
against
the
Warden
of
the
Fleet
;
and
so
it
is
in
equity
against
the
Marshal
:
And
tho'
the
Statute
limits
the
Action
to
be
brought
by
Writ
of
Debt
,
which
is
by
Original
;
yet
a
Bill
of
Debt
lies
by
the
equity
of
these
Statutes
.
And
forasmuch
as
this
Statute
gives
remedy
by
Debt
,
it
gives
Damages
also
:
And
this
Act
doth
extend
to
Feme
Coverts
,
and
Keepers
of
Gaols
for
escape
of
Prisoners
in
Execution
,
1
Leon.
17
Cro.
Jac.
658.
Now
we
will
consider
Actions
for
Escape
,
On
Mean
Process
,
Execution
.
On
Mean
Process
.
It
is
said
,
1
Roll.
Rep.
389
,
440.
Action
on
the
Case
lies
on
Escape
,
on
Mean
Process
.
Case
lies
not
for
Escape
on
Arrest
in
Mean
Process
;
but
upon
Execution
it
doth
.
But
in
1
Rolls
Abridgm
.
99.
If
a
man
be
arrested
on
Mean
Process
at
the
Suit
of
J.
S.
and
he
escape
,
J.
S.
shall
have
a
Special
Action
against
the
Sheriff
on
this
Escape
,
1
Roll.
Abr.
99.
May
and
Proby
.
If
a
man
sue
a
Latitat
,
to
the
intent
to
Declare
against
the
Defendant
after
Arrest
in
Castod
'
Maresc
'
in
Action
of
Debt
,
and
the
Sheriff
arrests
him
,
and
suffers
him
to
escape
,
an
Action
lies
against
the
Sheriff
shewing
this
Special
Matter
,
and
he
shall
recover
his
Damages
,
having
regard
to
the
loss
of
his
Debt
,
1
Roll.
Abr.
537.
And
so
is
the
Bayliff
of
Newcastle's
Case
.
Escape
on
Mean
Process
of
one
in
Prifon
for
want
of
Bail
,
lies
against
Bayliff
of
a
Franchise
.
One
brought
an
Action
against
J.
S.
before
the
Mayor
,
Bayliffs
and
Stewards
of
N.
where
the
Bayliffs
are
the
Gaolers
of
the
Town-Prison
,
and
J.
S.
is
Committed
to
the
Bayliffs
on
Mean
Process
for
want
of
Bail
,
and
they
let
him
at
Large
before
Judgment
and
Execution
,
and
after
the
Plaintiff
recovers
against
him
.
The
Plaintiff
may
have
a
Special
Action
against
the
Bayliffs
for
the
Escape
;
for
by
it
he
is
deprived
of
the
speedy
means
to
have
him
in
Execution
after
the
Judgment
,
1
Roll.
Abr.
99.
The
Bayliffs
of
Newcastle's
Case
.
On
Executions
.
If
the
Sheriff
suffers
one
taken
by
him
in
Execution
to
Escape
,
the
party
at
whose
Suit
he
was
taken
in
Execution
may
have
an
Alias
capias
against
the
party
that
escaped
,
to
take
him
again
in
Execution
,
or
an
Action
on
the
Case
against
the
Sheriff
,
Pract.
Reg.
145.
If
the
Sheriff
takes
one
by
Capias
ad
satifaciend
'
Action
lies
,
tho'
the
Writ
be
not
retorned
.
in
Debt
,
if
he
after
permits
him
to
go
at
Large
,
and
Retorns
not
the
Writ
,
yet
Debt
lies
on
this
Escape
;
for
there
is
a
Record
of
which
the
party
shall
take
advantage
,
tho'
the
Writ
be
not
Retorned
,
Cro.
El.
p.
16.
Clipton's
Case
.
Action
on
the
Case
,
upon
Escape
of
Escape
on
Cap.
Utleg
.
one
brought
in
Execution
by
force
of
a
Cap.
Utlegat
'
,
is
tam
pro
dom'
Rege
quam
pro
seipso
;
and
the
party
shall
have
all
in
Damages
.
An
Action
on
the
Case
,
Tam
pro
dom'
Rege
quam
pro
seipso
was
brought
,
for
that
he
had
a
Capias
Utlegat
'
after
Judgment
against
J.
S.
and
delivered
it
to
the
Sheriff
of
D.
to
execute
it
,
who
seeing
J.
S.
and
being
desired
to
execute
it
,
would
not
do
it
,
but
suffered
him
to
go
at
Large
and
afterward
the
said
Sheriff
Retorned
Non
est
inventus
.
Per
Cur.
The
Action
is
well
brought
,
and
the
King
is
to
have
the
benefit
thereof
as
well
as
the
party
.
And
in
his
Declaration
he
Declaration
.
need
not
cite
the
whole
Record
,
but
begin
at
the
Judgment
quod
non
recuperasses
;
for
it
is
but
a
Conveyance
to
the
Action
,
and
it
s
not
necessary
to
shew
the
whole
Record
;
and
it
sufficeth
to
begin
at
that
which
is
the
Cause
of
Action
,
Cro.
Jac.
532.
Parkhurst
and
Powell
,
Cro.
El.
877.
Eden
and
Floyd
,
Cro.
Jac.
360.
Barret
and
Winchcomb
.
Who
shall
have
an
Action
of
Debt
or
Case
upon
Escape
,
or
to
whom
it
shall
be
said
an
Escape
,
or
not
,
at
Election
.
And
this
is
to
be
considered
in
the
Case
of
a
Capias
Utlegat
'
,
or
a
Capias
pro
fine
;
or
where
one
shall
be
said
to
be
in
Execution
without
prayer
of
the
party
,
and
where
not
.
If
a
Cap.
ad
satisfac
.
issue
upon
a
Judgment
in
On
Cap.
Utlegat
.
Action
of
Debt
,
and
the
Sheriff
Retorn
Non
est
inventus
,
and
thereupon
he
is
Outlawed
;
and
afterwards
a
Capias
Utlegat
'
issues
out
against
him
,
upon
which
he
is
taken
and
Imprisoned
,
and
after
is
permitted
to
go
at
Large
;
the
party
who
recovered
shall
have
Action
of
Debt
upon
this
Escape
against
the
Sheriff
;
for
he
was
in
Execution
against
him
also
,
because
he
cannot
have
a
new
Capias
ad
satisfaciend
'
.
And
if
he
escape
,
altho'
he
was
taken
at
the
King's
Suit
,
yet
the
party
had
such
Interest
in
the
Body
,
that
Where
one
taken
on
Capias
shall
be
in
Execution
at
the
Suit
of
the
party
without
Prayer
.
he
shall
have
Action
of
Escape
against
the
Sheriff
;
and
before
the
Plaintiffs
Prayer
to
have
him
in
Execution
,
he
is
in
Execution
at
his
election
.
So
that
if
the
Sheriff
suffer
him
to
go
at
Large
before
the
Plaintiff
hath
determined
his
election
,
it
s
an
Escape
against
the
Plaintiff
if
he
will
,
and
an
Action
of
Debt
lies
,
Yelv.
p.
20.
1
Roll.
Abridgm
.
810.
5
Rep.
Garnon's
Case
.
A.
recovers
in
Debt
vers
.
D.
in
Banco
Communi
,
and
sues
a
Capias
ad
satisfac
.
and
an
Exigi
post
cap.
and
Outlaws
the
Defendant
,
who
brought
Error
in
B.
R.
and
Judgment
affirmed
,
and
within
the
year
a
Cap.
Utlegat
.
is
awarded
,
and
the
Defendant
taken
,
and
the
Sheriff
suffers
him
to
escape
before
the
Retorn
of
the
Writ
;
Action
lies
against
the
Sheriff
.
The
Defendant
here
being
taken
by
Cap.
Utlegat
.
out
of
the
Kings-Bench
,
shall
be
in
Execution
for
the
Plaintiff
presently
after
the
Arrest
,
if
he
will
,
altho'
he
was
never
brought
into
Court
,
nor
the
Court
committed
him
in
Execution
for
the
party
,
5
Rep.
Garnon's
Case
.
As
to
a
Capias
pro
fine
,
Note
,
In
all
Cases
when
the
Plaintiff
may
On
Cap.
pro
fine
,
he
shall
be
in
Execution
at
the
Suit
of
the
party
.
have
a
Capias
ad
satisfaciend
.
and
the
Defendant
is
taken
by
Capias
pro
fine
,
he
shall
be
in
Execution
for
the
Plaintiff
,
if
he
will
,
without
Prayer
:
As
,
a
Capias
pro
fine
on
Recovery
in
Assumpsit
,
and
also
a
Cap.
ad
satisfac
.
retornable
the
same
Term
at
one
and
the
same
Retorn
;
and
as
to
the
Capias
pro
fine
,
the
Sheriff
Retorns
Cepi
corpus
;
and
as
to
the
Cap.
ad
satisfaciend
.
Non
est
inventus
.
If
the
Sheriff
in
such
case
takes
the
party
by
Capias
pro
fine
,
now
upon
this
taking
he
is
in
Execution
for
the
party
;
and
if
the
Sheriff
let
him
go
at
Large
,
he
shall
answer
for
the
Escape
,
1
Leon.
51.
Hudson
and
Leigh
.
So
if
a
man
be
taken
by
a
Cap.
pro
fine
for
denying
his
Deed
in
an
Action
of
Debt
,
and
is
suffered
to
go
at
Large
,
he
who
Recovers
shall
have
Debt
against
the
Sheriff
;
for
the
Capias
is
ad
respondend'
tam
nobis
quam
parti
,
7
H.
4.
4.
So
in
Recovery
on
Forger
of
False
Deeds
,
if
the
Defendant
be
Imprisoned
for
the
Fine
at
the
Prayer
of
the
King's
Attorney
;
if
he
be
suffered
to
go
at
Large
before
satisfaction
to
the
Plaintiff
,
he
may
charge
him
for
the
Escape
,
because
he
is
in
Execution
to
the
party
upon
the
Prisal
at
his
election
.
For
he
ought
to
be
in
Execution
at
the
Suit
of
the
party
,
before
Suit
to
the
King
;
because
the
Suit
of
the
party
is
the
Original
;
and
the
Fine
but
accessary
,
because
of
the
Suit
,
7
H.
6.
6.
b.
But
if
a
man
be
taken
by
Capias
pro
fine
for
Where
no
Capias
lies
in
the
Original
,
he
shall
not
be
in
Execution
before
Prayer
of
the
party
.
the
King
,
where
no
Capias
lies
in
the
Original
,
(
as
in
Assize
with
Force
,
&c.
)
and
suffered
to
escape
before
Prayer
of
the
party
to
be
in
Execution
for
his
Damages
,
the
party
shall
not
have
Escape
against
the
Sheriff
,
because
he
would
not
be
in
Execution
for
him
before
Prayer
.
CHAP.
XXII
.
Action
for
Escape
by
Executors
or
Administrators
,
where
it
lies
,
or
not
.
Against
whom
Action
of
Escape
lies
.
Where
Execution
shall
be
after
Execution
on
Escape
;
and
where
it
shall
not
be
a
Discharge
of
Execution
,
but
that
he
may
be
retaken
again
.
Of
laying
the
Action
,
and
manner
of
Declaration
in
this
Action
.
Where
the
Sheriff
shall
have
his
Action
against
the
Prisoner
that
Escapes
;
and
how
to
Declare
.
Action
of
Escape
by
Executors
or
Administrators
,
and
how
to
be
brought
.
IT
is
made
a
Question
in
Jones
173.
and
On
Mea●
Process
.
Latch
.
67.
Lemason
and
Dixon's
Case
,
Whether
an
Executor
shall
have
an
Action
on
the
Case
against
the
Sheriff
for
an
Escape
in
the
time
of
the
Testator
on
Mean
Process
?
But
the
better
Opinion
seems
to
be
,
The
Executor
cannot
have
any
Remedy
:
The
Escape
being
in
the
time
of
the
Testator
it
is
a
Personal
wrong
to
the
party
,
&
moritur
cum
persona
,
Latch
.
67.
Jones
173.
But
on
the
other
side
it
was
said
by
Dodderidge
,
The
Executor
shall
have
this
Action
,
and
that
it
is
within
the
equity
of
the
Statute
of
4
Ed.
3.
for
it
is
a
Wrong
,
tho'
upon
Mean
Process
,
and
the
Tort
continues
as
to
the
Executor
;
for
every
thing
which
makes
to
the
hindrance
of
the
execution
of
a
Will
is
a
wrong
to
him
,
and
the
performance
of
Wills
is
much
favoured
in
Law
.
And
if
this
Action
would
not
lye
,
it
would
be
a
mischievous
case
;
for
as
soon
as
the
Creditor
dies
,
the
Gaoler
may
suffer
the
Prisoner
to
escape
,
because
none
may
have
Action
against
him
.
Two
Judges
were
against
two
.
Whitlock's
diversity
was
,
This
Personal
Tort
may
be
considered
in
two
respects
;
as
a
Crime
punishable
,
and
that
is
gone
;
or
as
a
Tort
to
the
party
;
and
then
it
is
but
reasonable
that
the
Executor
should
have
remedy
.
But
it
is
agreed
by
all
,
according
to
Fitzh
.
N.
B.
After
Judgment
.
121.
That
if
it
were
upon
Escape
after
Judgment
,
that
the
Action
would
lye
by
the
Executor
;
therefore
quaere
as
to
Wade's
Case
2
Keb.
616.
The
Executor
moved
for
a
Scire
facias
against
the
Defendant
,
escaped
out
of
Execution
in
the
time
of
the
Testator
,
and
that
the
Committitur
then
entred
may
be
vacated
.
Per
Cur.
albeit
the
party
or
the
Gaoler
on
Negligent
escape
,
or
the
party
on
Wilful
escape
may
take
him
again
,
yet
not
by
a
New
Process
or
Capias
after
a
Committitur
;
nor
can
the
Executors
have
any
Remedy
.
But
Stile's
Rep.
p.
32.
Boomer
and
Payt
,
is
positive
,
That
the
Administrator
may
have
Action
of
Debt
against
a
Sheriff
for
the
escape
of
a
Prisoner
,
suffered
in
the
time
of
the
Intestate
.
But
this
was
in
the
case
of
Execution
.
So
that
the
difference
seems
to
be
wh●re
the
Diversity
.
Escape
is
one
Mean
Process
,
and
where
it
is
out
of
Execution
.
Another
difference
is
,
betwixt
an
Escape
in
Diversity
between
Escape
in
the
time
of
the
Testator
,
and
the
time
of
the
Executor
.
the
Life
of
the
Testator
,
and
an
Escape
in
the
time
of
the
Executor
upon
Execution
in
the
time
of
the
Testator
.
And
it
is
agreed
for
Law
,
That
if
a
Prisoner
escapes
in
the
time
of
the
Executor
,
the
Executor
may
have
Action
of
Debt
.
B●t
the
Question
is
in
Sir
George
Reynell
and
Langcastel's
Case
;
and
it
is
Adjudged
,
that
it
ought
to
be
in
the
detinet
only
,
for
it
is
grounded
It
must
be
brought
by
Executor
in
the
Detinet
.
on
the
former
Judgment
:
And
as
an
Action
of
Debt
on
the
first
Judgment
shall
be
in
the
detinet
;
So
here
;
and
the
difference
was
taken
,
Where
the
Action
is
grounded
upon
privity
of
Contract
,
it
ought
to
be
in
the
detinet
.
Aliter
,
when
grounded
upon
a
Tort.
So
is
the
same
Case
,
Hob.
272.
by
the
name
of
Langcastel
and
Sidley
:
If
it
were
in
the
debet
and
detinet
,
the
Plaintiff
should
recover
for
his
own
use
.
So
it
is
in
Stile's
Rep.
32.
Martin
and
Hendley
,
and
2
Roll.
Rep.
132.
So
Executor
brings
Debt
upon
Escape
of
one
who
was
Bail
in
the
Recognizance
with
,
&c.
to
his
Testator
;
it
must
be
in
the
detinet
,
Lane's
Rep.
p.
80.
Carew's
Case
.
Note
,
In
Debt
for
Escape
,
broght
by
the
Costs
.
Executor
;
if
he
be
Nonsuit
,
he
shall
not
pay
Costs
,
1
Roll.
Rep.
63.
The
Plaintiff
brings
Action
on
the
Case
as
Executor
against
the
Sheriff
(
Defendant
)
for
Escape
,
and
had
Judgment
given
him
per
nomen
of
Executor
.
This
Judgment
past
by
Non
sum
Informatus
.
Error
was
brought
,
because
the
first
Judgment
was
given
for
him
as
Administrator
;
and
this
in
Action
on
the
Escape
,
and
the
Judgment
on
it
was
per
nomen
of
Executor
.
Dodderidge
put
the
Case
:
The
Administrator
hath
one
in
Execution
for
Debt
,
the
Sheriff
suffers
him
to
escape
;
he
brought
his
Action
of
Debt
against
the
Sheriff
for
this
Escape
,
and
recovers
;
and
after
all
he
finds
a
Will
,
by
which
he
himself
was
made
Executor
.
The
Recovery
shall
now
be
good
,
and
this
Money
recovered
against
the
Sheriff
shall
be
Assets
in
his
hands
,
and
no
Audita
Querela
in
this
Case
lies
against
the
Sheriff
.
And
Crook
of
the
same
Opinion
.
Houghton
contra
.
If
the
first
Executor
dies
Intestate
,
his
Administrator
shall
not
have
an
Action
of
Debt
against
the
Sheriff
for
this
Escape
;
no
more
shall
the
Executor
here
in
the
Principal
Case
have
his
Action
against
the
Sheriff
for
the
escape
of
him
that
was
in
Execution
at
the
suit
of
an
Administrator
.
The
Executor
here
hath
no
privity
to
sue
Execution
upon
this
Judgment
;
because
the
Scire
fac
'
depends
on
the
Satisfaction
,
and
to
this
he
is
not
privy
.
The
Court
being
divided
,
it
was
Compounded
,
3
Bulstr.
112.
Slingsby
and
Lambert
,
Cro.
Jac.
394.
1
Roll.
Rep.
276.
Godbolt
262.
mesme
Case
.
Action
on
the
Case
lies
by
Commissioners
of
Action
on
the
Case
by
Commissioners
of
Bankrupts
for
an
Escape
.
Bankrupcy
,
for
suffering
one
to
escape
who
was
Committed
by
them
;
because
he
refused
to
be
examined
,
1
Roll.
Rep.
47.
Barnes
and
Cary.
Against
whom
an
Action
for
Escape
lies
.
If
the
Under-sheriff
takes
one
in
Execution
,
Against
an
Under-sheriff
.
and
suffers
him
to
escape
;
Action
of
Debt
lies
against
the
Sheriff
himself
.
But
there
is
a
Case
cited
in
Marsh
and
Astrey's
Case
,
1
Leon.
146.
The
Under-sheriff
suffered
a
Prisoner
to
escape
,
and
the
Action
was
brought
against
the
Under-sheriff
:
For
(
saith
the
Book
)
it
may
be
the
Under-sheriff
himself
had
not
Notice
of
the
matter
,
(
and
I
conceive
,
it
s
no
matter
whether
he
had
or
not
,
he
having
Security
from
his
Under-sheriff
,
)
and
the
Writ
was
delivered
to
the
Under-sheriff
,
and
he
took
a
Fee
for
it
.
But
this
seems
not
to
be
Law
:
The
Sheriff
is
the
person
in
Court
alone
to
answer
all
Misdemeanors
Where
Action
lies
against
the
Under-sheriff
,
or
not
.
of
Under-sheriffs
,
or
Bayliffs
.
As
the
Under-sheriff
lets
one
go
that
is
arrested
upon
a
Latitat
,
and
Retorns
Non
est
inventus
.
No
Action
lies
against
the
Under-sheriff
;
but
the
Sheriff
shall
not
be
Imprisoned
nor
Indicted
for
the
act
of
the
Under-sheriff
,
Latch
.
p.
187.
Laycock's
Case
.
Yet
quaere
of
the
Principal
Case
,
vid.
supra
sub
tit
.
Under-sheriffs
.
Cap.
ad
satisfaciend
'
is
awarded
to
the
Sheriff
Action
against
the
Bayliff
of
a
Franchise
,
and
not
against
the
Sheriff
.
of
Berkshire
to
arrest
J.
S.
who
was
then
in
the
Custody
of
the
Mayor
and
Burgesses
of
Windsor
,
and
he
awarded
a
Warrant
to
the
Mayor
,
&c.
to
take
him
,
who
did
so
,
and
after
let
him
escape
.
Action
of
Debt
for
this
Escape
lies
against
them
,
not
against
the
Sheriff
.
And
the
like
Law
of
a
Bayliff
of
a
Franchise
.
Action
of
Debt
is
maintainable
against
a
Not
against
the
Sheriffs
or
Gaolers
Executors
.
Gaoler
or
Sheriff
for
escape
out
of
Execution
:
But
it
doth
not
lye
against
his
Executors
or
Administrators
.
Vide
supra
,
yet
with
this
difference
,
Dyer
271
,
322.
Where
the
Sheriff
is
chargable
in
his
Life-time
Difference
between
a
Tort
and
Levying
Money
.
for
a
Personal
Tort
or
Misfeasanze
,
there
his
Person
is
only
chargable
,
&
actio
moritur
cum
persona
:
But
where
he
is
chargable
for
levying
Money
on
a
Fieri
fac
'
,
and
not
paying
it
over
;
there
,
if
he
dies
,
his
Executors
are
chargable
:
It
's
a
Duty
,
Cro.
Car.
539.
Perkinson
and
Cullyford
.
A
Prisoner
taken
on
mean
Process
upon
plaint
Against
a
Serjeant
in
London
.
before
the
Sheriff
in
London
,
is
in
Custody
of
a
Serjeant
,
and
escapes
,
the
Action
shall
be
brought
against
the
Serjeant
in
this
Case
.
Siderf
.
p.
318.
Action
upon
the
Case
,
against
Defendant
being
Sheriff
of
London
on
mean
Process
,
and
after
Issue
and
Trial
by
Nisiprius
,
and
before
the
day
in
Banco
,
one
of
them
dies
;
tho
they
are
reputed
one
Officer
,
yet
they
are
2
distinct
persons
,
and
the
Suit
shall
proceed
against
the
other
,
Hard.
161.
Harris
versus
Phillips
and
Briggs
.
Where
Execution
shall
be
after
Execution
upon
Escape
,
or
where
an
Escape
shall
not
be
a
Discharge
of
Execution
,
but
that
he
may
be
taken
again
.
Note
,
If
the
party
negligently
Escape
,
the
party
and
the
Sheriff
may
take
him
again
;
but
if
voluntarily
,
the
only
the
party
may
take
him
again
,
but
not
the
Sheriff
;
but
if
the
Sheriff
let
him
go
by
the
consent
of
the
Plaintiff
,
then
neither
can
take
him
,
2
Keb.
206.
Alenson
and
Butler
.
But
tho
the
party
or
Gaoler
on
negligent
escape
,
or
the
party
on
wilful
escape
may
take
him
again
,
yet
not
by
a
new
Process
or
Capias
after
a
Committitur
,
2
Keb.
616.
Wades
Case
.
In
case
of
Sheriffs
death
.
If
one
in
Execution
on
Ca.
Sa.
escape
of
his
ownwrong
,
yet
the
Plaintiff
cannot
have
other
Execution
,
Hob
p.
6.
If
a
Man
taken
in
Execution
by
a
Capias
be
put
in
Prison
,
and
after
escapes
,
and
after
the
Sheriff
dies
,
a
new
Capias
lies
against
him
,
otherwise
the
Plaintiff
would
be
without
Remedy
.
But
if
a
Man
be
in
Prison
,
and
the
Marshall
die
,
and
then
the
Prisoner
escapes
,
there
is
no
remedy
but
to
take
him
again
;
for
if
after
the
death
of
the
old
Sheriff
,
and
before
another
is
made
Sheriff
a
Prisoner
go
at
large
,
this
is
no
escape
,
for
he
is
in
Custody
of
the
Law
,
and
may
be
retaken
in
Execution
at
any
time
,
Hob.
p.
60.
41.
Ass.
15.
Mod.
Rep.
14.
3
Rep.
Westbies
Case
.
On
voluntary
escape
,
the
party
doth
not
lose
his
Interest
,
but
may
take
him
again
,
and
if
the
Sheriff
die
he
may
have
a
new
Execution
if
he
will
.
So
the
Plaintiff
Eexcutor
brought
a
Sci.
fac
.
on
a
Plea
of
permisit
ire
ad
Larg
.
how
con
strued
.
Judgment
in
Debt
for
the
Testator
against
the
Defendant
,
Quare
Execution
.
habere
non
debet
,
Defendant
pleads
he
was
taken
in
Execution
per
Ca.
Sa.
upon
this
Judgment
,
and
committed
to
.
the
Fl●et
,
and
that
the
Warden
permitted
him
ire
〈◊〉
.
Plaintiff
Demurs
,
and
judgment
giv●
〈◊〉
querente
;
and
he
may
have
new
Execution
against
the
Defendant
,
who
escapes
out
of
Prison
,
by
3
Justices
cont'
Vaughan
And
Alanson
and
Butler
is
full
to
the
Point
;
Sir
Thomas
Jones
p.
21.
Allen
and
Winter
.
2d
Point
,
Whether
permisit
ire
ad
Larg
.
shall
be
implyed
negligenter
or
voluntarie
,
and
it
seems
,
'
its
not
voluntary
,
because
the
Plea
shall
be
most
strongly
taken
against
the
pleader
.
If
A.
be
taken
on
Execution
at
the
Suit
of
B.
and
voluntarily
Escape
by
the
assent
of
the
Sheriff
,
and
after
the
Sheriff
retakes
him
and
keeps
him
in
Priso●
,
he
shall
be
in
Execution
to
B.
because
tho
B.
may
bring
an
Action
against
the
Sheriff
on
this
voluntary
Escape
,
yet
this
is
at
his
Election
,
for
the
party
in
Execution
of
his
own
wrong
shall
not
put
B.
to
his
Action
against
the
Sheriff
against
his
will
,
and
it
may
be
that
the
Sheriff
is
not
able
to
make
him
recompence
,
10.
Car.
B.
Trevillian
and
the
Lord
Roberts
Case
,
Siderf
'
p.
350
Allanson
and
Butler
.
So
it
is
said
,
tho'
the
Gaoler
be
Liable
to
an
Action
of
Trespass
for
the
retaking
,
yet
the
Prisoner
is
in
Execution
,
and
the
Reason
given
is
,
The
Body
is
a
Pledge
,
and
the
Execution
must
be
effectual
.
3
Keb.
453
,
463.
James
and
Pierce
.
Uoluntary
Escape
suffered
only
to
gain
Fees
ought
not
to
be
countenanced
,
nor
is
no
Plea
in
Bar
,
that
the
party
was
intended
to
re●orn
to
Prison
again
at
his
day
,
and
the
Plaintiff
has
an
Interest
,
which
is
not
discharged
by
the
Escape
.
But
my
Lord
Hobart
on
a
Tryal
at
Guild-Hall
in
the
Sheriff
of
Essex's
Case
,
was
of
another
Opinion
,
the
Case
was
;
The
Prisoner
having
been
in
Execution
,
was
willingly
let
go
out
of
Prison
by
the
Gaoler
,
and
then
came
into
the
Gaol
again
,
and
so
remained
in
the
Gaol
till
the
time
of
another
Sheriff
,
and
then
Escaped
,
and
an
Action
of
Debt
was
brought
against
the
Sheriff
,
This
is
since
denyed
for
Law
.
By
voluntary
Escape
suffered
by
the
Gaoler
the
Execution
gone
.
and
he
directed
the
Jury
,
that
the
Sheriff
was
not
answerable
to
this
Action
,
for
when
he
was
suffered
by
the
Gaoler
voluntarily
to
go
abroad
,
the
Execution
was
utterly
discharged
,
so
as
he
could
not
lawfully
be
taken
again
,
nor
adjudged
in
Execution
by
Law
,
tho
the
party
would
yield
himself
to
it
,
or
the
Creditor
should
allow
it
,
2
Leon.
p.
169.
162.
If
a
Prisoner
in
Execution
escape
with
the
permission
of
the
Gaoler
,
the
Execution
is
utterly
gone
and
extinguished
,
and
the
Plaintiff
shall
never
resort
to
him
that
escapes
,
but
shall
hold
himself
to
the
Gaoler
for
his
remedy
.
Aliter
if
he
escape
voluntary
,
or
of
his
own
wrong
,
prout
supra
.
But
the
Law
is
now
held
otherwise
against
Ridgways
Case
,
Dr.
Drurys
Case
,
and
the
Earl
of
Essex
Case
.
But
'
its
otherwise
in
case
of
a
Rescous
,
Hob.
p.
202.
Sheriff
of
Essex
Case
,
2
Leon.
117.
162.
Phillips
and
Stone
.
In
Sci.
fac
.
to
have
Execution
on
a
Judgment
Permissive
Escape
.
in
Debt
,
Defendant
pleads
that
at
another
time
,
the
Plaintiff
had
sued
Execution
by
Capias
ad
satisfaciend
.
and
the
Defendant
was
taken
in
Execution
.
Plaintiff
replies
,
that
true
it
is
,
he
sued
a
Capias
ad
satisfaciend
.
and
the
Defendant
was
taken
thereupon
,
but
he
presently
Rescued
himself
and
escaped
.
Per.
Cur.
the
Replication
is
good
,
and
it
is
no
reason
the
Defendant
should
take
advantage
of
his
own
wrong
;
tho
't
is
no
good
retorn
upon
a
Capias
ad
satisfaciend
.
that
the
Defendant
Rescued
himself
,
nor
any
Plea
in
Debt
or
Rescous
.
escape
;
and
the
Plaintiff
may
have
as
well
his
remedy
against
the
party
as
against
the
Sheriff
,
and
the
party
hath
Liberty
to
begin
again
de
novo
by
Action
on
the
Judgment
,
or
against
the
Sheriff
,
Cro.
Jac.
240.
Robinson
and
Clayton
,
1.
Keb.
660.
If
a
man
upon
a
Capias
ad
satisfaciend
be
taken
New
Execution
upon
Rescous
.
in
Execution
,
and
after
Rescues
himself
from
the
Sheriff
and
Escapes
,
the
Plaintiff
may
have
a
new
Capias
against
him
and
take
him
again
,
the
first
Writ
not
being
retorned
or
filed
,
nor
any
Record
made
of
the
Award
,
and
this
on
a
Sci.
fac
.
after
the
year
,
because
he
shall
not
take
advantage
of
his
own
wrong
;
and
so
he
may
have
Elegit
or
any
other
Writ
:
And
so
it
is
if
the
Sheriff
had
retorned
the
Writ
and
Rescous
,
the
Plaintiff
may
have
a
new
Capias
against
him
.
1
Rol.
Abr.
904.
Mounson
and
Clayton
,
and
Radford
and
Hopkins
.
If
one
in
Execution
Escape
,
and
the
Sheriff
Fresh
suit
.
makes
fresh
persuit
after
him
and
takes
him
again
,
altho
it
be
a
long
time
after
,
yet
he
shall
be
said
to
be
in
Execution
again
,
because
he
shall
not
take
advantage
in
his
own
wrong
.
3
Rep.
Ridgways
Case
.
Where
one
is
taken
lawfully
in
Execution
,
and
after
discharged
by
Writ
of
Error
,
and
after
the
Judgment
is
affirmed
,
a
new
Capias
lies
not
against
him
,
but
Execution
shall
be
awarded
against
his
Sureties
,
if
he
will
not
render
himself
.
But
if
the
Execution
is
reverst
,
because
he
was
never
lawfully
taken
in
Execution
(
as
if
he
be
taken
after
the
year
without
any
Sci.
fac
.
)
he
may
be
retaken
again
,
Lach.
p.
292.
Sir
W.
Fish
and
Wiseman
.
Escape
.
Laying
the
Action
and
Declaration
.
Rule
,
Debt
upon
Escape
ought
always
to
persue
the
first
Action
.
Therefore
,
where
the
Plaintiff
as
Executor
brought
Debt
against
the
Sheriff
of
I.
on
escape
of
E.
B.
against
whom
they
recovered
a
Debt
of
82l
as
Administrator
of
I.
S.
reciting
all
the
Record
in
Certain
:
It
is
erroneous
.
For
the
first
recovery
was
as
Administrator
of
I.
S.
and
the
Debt
on
escape
is
as
Executor
of
I.
S.
which
cannot
be
,
that
one
should
die
Intestate
,
and
have
an
Executor
,
Cro.
Jac.
p.
394.
Sir
H.
Slingsy
vers
.
Lambert
.
The
Plaintiff
declares
against
the
Sheriff
of
Devon
,
for
an
Escape
at
Exeter
,
which
is
a
City
and
County
it self
,
and
not
part
of
the
County
of
Devon
,
yet
good
after
a
Verdict
,
for
it
shall
be
intended
the
Defendant
had
the
Custody
of
his
Prisoner
in
Exon'
either
by
Hab.
Corp.
Action
against
one
Sheriff
of
London
,
and
declares
,
he
●as
in
Custody
of
both
.
or
on
fresh
persuit
,
Sider
.
364.
Hopping
and
Holmes
.
The
Plaintiff
declares
that
the
party
was
in
Custody
of
both
the
Sheriffs
of
London
,
and
the
Action
is
brought
against
one
of
them
,
the
Prisoner
that
escaped
being
in
Ludgate
,
in
the
Custody
of
the
Defendant
only
,
the
Declaration
is
good
,
for
the
Prisoner
was
in
Custody
of
both
the
Sheriffs
,
tho
he
was
in
the
Custody
of
the
Defendant
;
and
it
stands
well
enough
with
the
Record
,
and
the
words
existen
.
in
custod
.
is
a
good
Averment
that
he
was
in
Custody
,
and
the
word
ut
prefertur
do
not
hurt
the
Averment
Stiles
,
Rep.
297.
Drinkwater
and
Pack
.
Declaration
.
Rule
.
If
the
Party
in
his
Declaration
doth
shew
he
hath
no
Cause
of
Action
,
in
such
Case
if
the
Sheriff
by
force
of
a
Capias
to
him
directed
,
doth
Whether
the
Sheriff
shall
take
advantag●
of
the
insufficiency
of
the
Count.
take
the
Party
in
Execution
,
and
suffer
him
to
Escape
,
no
Action
of
Debt
lies
against
the
Sheriff
for
this
Escape
.
But
in
Dyer
67.
a.
2
Bulst.
62.
9.
In
Action
on
Escape
against
the
Sheriff
or
Gaoler
,
they
shall
not
take
advantage
of
the
Insufficiency
of
the
Count
,
but
shall
answer
to
the
Escape
:
The
same
Law
is
of
an
Error
in
the
Record
or
Discontinuance
,
because
they
are
Strangers
to
it
;
no
more
than
a
Stranger
shall
falsifie
a
Recovery
by
matter
Dilatory
,
Dyer
67.
a.
Rule
.
The
Declaration
in
Escape
ought
to
mention
the
first
Judgment
;
or
,
the
Plaintiff
ought
to
shew
he
had
recovered
on
Judgment
.
And
it
is
not
sufficient
to
say
,
qd'
recuperasset
.
The
Case
was
,
qd'
cum
the
Plaintiff
recuperasset
vers
.
J.
S.
&c.
prout
patet
per
Recordum
,
and
that
upon
this
a
Capias
issued
out
,
and
J.
S.
was
taken
by
the
Defendant
and
Escaped
.
It
is
too
general
;
for
non
constat
by
the
Declaration
that
any
Judgment
was
ever
given
against
him
,
and
then
he
was
not
well
taken
in
Execution
,
1
Sanders
38
,
39.
Jones
and
Pope
.
Sider
.
p.
307.
2
Keb.
63.
Mesme
Case
,
1
Sanders
34.
Careswells
Case
.
And
tho'
the
Sheriff
be
in
Contempt
if
he
let
him
Escape
,
yet
no
Debt
ariseth
unless
there
were
a
Judgment
;
and
tho'
it
be
said
the
Sheriff
took
him
in
Execution
,
and
for
Debt
unde
convict'
est
;
yet
this
is
but
a
recital
of
the
Writ
.
Declaration
in
Escape
may
be
according
to
the
Writ
(
viz.
that
he
Escaped
out
of
the
Custody
of
the
Sheriff
or
Bayliff
,
)
this
is
in
Action
on
the
Case
,
Siderfin
p.
332.
In
Case
,
Declaration
,
That
the
Sheriff
,
(
the
Defendant
)
had
arrested
L.
at
the
Suit
of
the
Plaintiff
by
a
Lat'
sued
out
of
the
Court
the
21
of
January
,
and
that
by
the
Escape
the
Plaintiff
had
lost
his
Debt
of
119
l.
Upon
not
Guilty
the
Jury
find
,
that
the
Writ
was
Teste
28
of
Novemb.
But
revera
sued
out
of
Court
the
21
of
Jan.
and
that
Habeas
Corpus
was
sued
by
the
Plaintiff
retornable
Mense
Pasche
,
with
intention
to
declare
then
against
the
said
L.
But
the
Defendant
upon
another
Writ
of
Habeas
Corpus
,
without
the
assent
or
notice
of
the
Plaintiff
,
sued
and
retornable
Tres
Pasche
duxit
the
said
L.
ad
respond
'
to
the
Plaintiff
in
Trespass
ac
etiam
bille
of
19
l.
where
the
said
L.
was
in
Custody
of
the
Defendant
ad
respond
'
the
Plaintiff
in
billa
de
119
l.
and
so
the
said
L.
was
permitted
to
Escape
.
Moved
in
Arrest
of
Judgment
,
because
the
Action
is
founded
upon
an
Arrest
at
the
Suit
of
the
Plaintiff
by
virtue
of
another
Writ
than
the
Writ
found
by
the
Jury
;
and
the
Plaintiff
might
have
declared
otherwise
(
videl'
)
that
he
had
sued
a
Lat.
Teste
28
Novemb.
But
per
Cur.
there
is
veritas
Legis
&
veritas
Facti
,
and
the
Declaration
is
according
to
the
verity
of
the
fact
,
and
by
necessity
of
Law
,
the
Teste
of
the
Writ
ought
to
be
in
Term
,
and
so
is
the
course
.
Judgment
,
pro
Quer'
,
Sir
Thomas
Jones
Rep.
p.
149.
Walbury
and
Saltonstal
.
Tho'
it
be
not
shewn
that
the
Prisoner
did
It
is
not
necessary
to
be
shewed
that
he
did
not
appear
at
the
day
.
not
appear
at
the
day
,
for
if
he
did
not
appear
then
the
Plaintiff
was
at
no
loss
,
yet
that
is
not
Error
in
the
Declaration
,
for
tho'
he
did
appear
,
yet
the
Tort
is
not
purged
,
Cro.
El.
289.
Appleton
and
Burr
.
A
Declaration
is
against
a
Sheriff
,
that
he
suffered
his
Prisoner
to
Escape
,
and
had
retorned
Cepi
Corpus
&
parat'
habeo
,
whereas
revera
he
had
not
the
Body
at
the
Retorn
of
the
Writ
.
Quaere
if
this
Declaration
was
for
the
false
Retorn
,
or
for
the
Escape
,
or
for
both
,
—
To
this
Declaration
the
Defendant
might
have
pleaded
the
Stat.
of
23
H.
6.
but
he
demurred
generally
,
and
so
has
lost
the
advantage
of
the
Statute
,
which
is
a
private
Statute
,
and
the
Defendant
has
confessed
the
Escape
by
the
Demurrer
,
vide
supra
.
Sanders
154
,
155.
Benson
and
Welby
.
So
that
if
the
Escape
be
well
alledged
,
the
Court
will
not
countenance
Error
in
other
Non
Formalities
.
The
Declaration
was
,
whereas
he
had
brought
a
Writ
of
Debt
against
M.
W.
and
recovered
,
and
shews
all
the
matter
of
the
Escape
,
&c.
and
then
it
is
,
(
as
usually
in
the
Common
Bench
)
unde
queritur
qd'
cum
he
brought
a
Writ
of
Debt
against
M.
W.
&c.
and
saith
not
the
aforesaid
M.
W.
and
so
it
may
be
a
Stranger
,
and
therefore
not
good
,
Cro.
Jac.
188.
Burton
and
Eyre
.
But
upon
Conference
with
the
Prothonotaries
,
Course
of
Declaration
C.
B.
it
is
the
common
course
in
Actions
on
the
Case
after
recital
of
the
Writ
,
in
the
unde
queritur
to
begin
de
novo
,
and
not
to
say
praedict'
,
&c.
And
Per
Curiam
,
both
courses
are
well
enough
.
And
so
it
is
,
tho'
there
be
an
Error
in
Fact
.
Error
in
Fact
not
to
be
assigned
on
the
Escape
.
As
in
the
Case
of
Jaques
,
Car.
2.
which
was
,
On
Non
Omitt
as
,
Capias
and
Escape
.
The
Capias
was
of
50
l.
and
to
answer
5
l.
Alano
Lockart
Prothonotary
:
And
the
Judgment
in
Debt
on
the
Escape
by
default
is
50
l.
and
this
was
assigned
for
Error
;
for
the
Judgment
and
Capias
was
but
of
50
l.
as
to
the
Party
.
But
Non
allocatur
,
for
upon
the
whole
the
Judgment
is
right
,
and
but
an
Error
in
Fact
,
which
cannot
be
assigned
on
the
Escape
,
2
Keb.
646.
2
Sanders
98.
Jaques
and
Keble
.
In
Escape
against
the
Marshal
,
the
Plaintiff
Declared
,
That
whereas
J.
S.
was
indebted
to
him
by
Bond
,
and
thereupon
arrested
by
Latitat
,
and
put
in
Bail
,
and
the
Plaintiff
obtained
a
Judgment
,
who
thereupon
in
Discharge
of
his
Bail
did
render
himself
to
Sir
John
Lenthall
in
Execution
,
and
afterward
Sir
John
Lenthall
(
the
Marshal
)
suffered
him
to
Escape
.
To
this
it
was
excepted
,
that
he
rendered
himself
to
the
Marshal
;
whereas
he
ought
to
say
he
rendered
himself
to
the
Court
,
for
it
is
the
act
of
the
Court
that
turns
him
over
to
the
Marshalsea
;
and
a
Judge
can
only
take
and
discharge
the
Bail
.
But
it
s
here
,
that
he
rendered
himself
to
Sir
John
Lenthall
in
Court
.
Which
is
well
enough
,
Stiles
Rep.
330.
Child
and
Sir
John
Lenthall
.
As
to
Declarations
upon
Escape
,
after
delivery
from
the
old
Sheriff
to
the
new
Sheriff
,
and
the
manner
of
declaring
,
I
shall
cite
two
Cases
,
Declaration
as
the
old
and
new
Sheriff
which
will
much
inform
us
in
that
point
.
The
Declaration
was
,
That
he
was
in
Execution
of
the
old
Sheriff
,
and
delivered
to
the
new
Sheriff
,
and
then
committed
to
the
Marshal
by
Habeas
Corpus
,
and
then
suffered
to
Escape
,
Cro.
Jac.
587.
Dowdswell
and
Sir
G.
Reynel
.
This
exception
was
taken
to
the
Declaration
,
It
must
be
shewed
that
the
old
Sheriff
delivered
him
cum
caus
.
to
the
new
Sheriff
.
because
it
was
not
shewed
,
that
the
ancient
Sheriffs
delivered
him
in
Execution
,
with
the
Causes
of
Imprisonment
to
the
new
Sheriffs
;
for
otherwise
,
it
is
an
Escape
in
them
,
and
not
in
the
Marshal
,
as
in
Westbies
Case
.
For
it
may
be
he
was
delivered
per
Indenturam
debito
modo
confectam
for
other
Causes
,
and
this
Cause
was
not
mentioned
.
And
a
Declaration
ought
to
be
certain
to
every
intent
;
and
tho'
it
be
said
virtute
cujus
,
he
was
in
Execution
under
the
new
Sheriffs
,
yet
that
does
not
help
it
,
for
it
is
but
the
conclusion
of
the
Premisses
;
and
if
the
matter
before
does
not
shew
he
was
in
Execution
,
that
pretextu
cujus
will
not
serve
.
In
Debt
on
Escape
.
The
Original
and
Capias
which
was
retornable
Cras
.
Martin
in
Michael'
—
78.
was
set
forth
:
And
that
Sydly
in
exit'
ab
Officio
in
December
,
after
the
Retorn
delivered
him
over
to
C.
and
it
appears
not
that
the
Prisoner
was
ever
in
the
Custody
of
Sydley
.
But
by
Windham
he
could
not
else
be
turned
over
,
and
it
is
expresly
said
he
was
in
Custody
,
and
it
may
be
no
Writ
was
retorned
by
the
Sheriff
;
and
tho'
in
Law
he
cannot
be
in
Custody
till
the
Retorn
,
yet
that
shall
be
now
intended
;
neither
need
it
be
said
,
that
the
Sheriff
was
continued
in
his
Office
above
a
year
,
1
Keb.
632.
Hargol
and
Creamer
.
Of
Declaring
in
Escape
upon
Outlawry
,
there
Declaring
in
Escape
on
Outlawry
.
are
also
two
Cases
which
will
greatly
direct
us
:
One
was
Outlawed
by
the
Plaintiff
,
and
by
Habeas
corpus
he
was
delivered
to
the
Marshalsea
,
and
escaped
.
Now
the
Declaration
may
be
for
the
party
only
,
and
it
need
not
be
an
Action
on
the
Case
tam
quam
,
tho'
here
is
a
Contempt
to
the
King
,
Brigdman's
Rep.
8.
Moor
and
Sir
George
Reynell
.
The
Plaintiff
in
Debt
on
Escape
declares
of
a
Recovery
of
13
,
Utlawed
15.
and
that
he
was
taken
by
Cap.
Utlegat
.
18
Car.
2.
after
the
year
,
and
doth
not
Declare
that
he
was
in
Custody
,
nor
that
he
was
ever
charged
in
Execution
at
the
Suit
of
the
party
,
by
Prayer
on
the
first
Judgment
,
(
in
which
Case
,
tho'
an
Action
on
the
Case
will
lye
,
yet
not
Action
of
Debt
.
)
And
after
Verdict
pro
Quer'
,
Maynard
moved
in
Arrest
of
Judgment
,
That
this
taking
after
the
Year
,
after
the
Recovery
and
Judgment
on
the
Outlawry
,
does
not
make
the
Prisoner
in
Execution
at
the
Suit
of
the
party
,
without
Prayer
;
because
it
may
be
Intended
,
that
the
party
intended
to
have
other
Execution
than
the
Body
.
And
relied
on
Frost's
Case
5
Rep.
89.
That
until
election
made
,
he
is
not
in
at
the
Suit
of
the
party
,
Siderfin
380.
Buckland
and
Kelland
,
2
Keb.
408.
mesme
Case
.
But
upon
Cro.
El.
850.
Shaw
and
Cutter's
Case
,
Tho'
the
Capias
Utlegat
'
be
after
the
year
.
yet
Debt
●ies
upon
Escape
,
without
any
Prayer
of
the
party
entred
on
Record
.
Declaration
on
Escapes
in
Inferiour
Courts
.
and
706.
Leighton
and
Garnon's
Case
,
The
Court
inclined
,
that
tho'
the
Capias
be
after
the
year
,
yet
Debt
lies
against
the
Sheriff
for
the
escape
,
without
any
Prayer
of
the
party
entred
on
Record
;
and
that
he
which
is
taken
upon
a
Cap.
Utlegat
.
is
in
Execution
at
the
Suit
of
the
party
,
till
the
party
disclaim
it
,
5
Rep.
Frost's
Case
.
As
to
Leighton
,
and
Garnon
,
and
Shaw
and
Cutter's
Cases
,
vide
supra
.
As
to
the
manner
of
Declaring
on
Escapes
in
Inferiour
Courts
,
or
upon
Removal
out
of
Inferiour
Courts
,
it
need
not
be
shewed
how
the
Jurisdiction
of
the
Court
was
,
and
how
it
was
held
;
this
being
but
Inducement
to
the
Action
.
And
so
is
1
Cro.
Moys
and
Hodges
,
2
Kel
.
219.
Drinkwarter's
Case
,
the
Escape
being
the
material
part
;
and
tho'
it
s
said
,
the
party
was
Committed
debito
modo
,
and
doth
not
say
,
prout
patet
per
Recordum
,
its
good
enough
,
the
Presidents
being
both
ways
.
But
in
Hodges's
Case
the
difference
is
right
.
When
the
Jurisdiction
ought
to
be
set
forth
,
and
when
not
.
When
the
Jurisdiction
of
the
Court
ought
to
be
set
forth
,
and
when
not
.
The
Declaration
was
:
Whereas
the
Plaintiff
in
such
a
Court
of
Pye-powders
,
held
at
Gloucester
secundum
consue●ud'
Civitatis
illius
,
brought
Action
of
Debt
of
200
l.
against
Hodges
,
and
thereupon
he
was
arrested
,
and
under
Custody
of
the
Sheriffs
of
Gloucester
,
who
let
him
go
at
Large
.
Per
Cur'
.
In
pleading
a
Recovery
in
Inferiour
Court
,
he
ought
to
shew
by
what
Authority
the
Court
is
holden
,
whether
by
Patent
or
Prescription
:
And
this
Court
being
styled
a
Court
of
Pyepowders
,
(
which
is
incident
to
Fairs
and
Markets
,
and
is
for
Contracts
arising
in
them
)
shall
not
be
intended
to
be
a
Court
,
unless
it
be
shewed
to
be
held
by
Charter
or
Prescription
,
and
that
the
Sheriff
who
is
to
take
advantage
thereby
ought
to
shew
it
.
As
Stewards
,
when
they
make
any
Certificate
out
of
Inferiour
Courts
,
ought
to
shew
therein
how
the
said
Courts
are
holden
,
for
they
best
know
their
own
Authority
.
But
otherwise
in
the
Case
of
a
Stranger
,
as
here
,
where
the
Style
of
the
Court
is
but
an
Inducement
to
his
Action
,
Cro.
Car.
58.
Hodges
and
Moys
.
So
Action
on
Escape
on
Mean
Process
in
Inferiour
Need
not
fet
forth
any
Plaint
in
Inferior
Court
.
Courts
,
by
virtue
whereof
the
Defendants
as
Bayliffs
did
duly
arrest
him
,
and
they
set
not
forth
any
Plaint
.
And
per
Cur.
this
is
but
Inducement
,
and
cured
by
Appearance
,
the
Escape
being
well
set
forth
,
2
Keb.
209.
Pepper
and
Some
.
In
Action
on
the
Case
for
Escape
,
it
was
alledged
Bayliff
of
a
Franchise
delivered
the
person
arrested
to
the
Sheriff
,
and
saith
not
at
what
place
.
in
the
Declaration
,
That
the
Sheriff
directed
his
Warrant
to
the
Bayliff
of
a
Franchise
to
arrest
the
party
;
who
arrested
him
,
and
delivered
him
to
the
Under-sheriff
in
câ
parte
authorizat'
,
&c.
and
shewed
no
place
where
the
Bayliff
delivered
the
Prisoner
;
for
it
may
be
it
was
out
of
the
County
.
Sed
non
allocatur
:
For
the
shewing
the
place
was
but
Inducement
to
the
Action
,
and
when
he
pleaded
Not
guilty
,
the
Escape
is
the
Matter
material
,
Cro.
Eliz.
289.
Appleton
and
Burr
.
Debt
upon
Escape
was
brought
against
the
Bayliff
It
s
not
alledged
,
that
the
Sheriff
made
Warrant
to
the
Bayliff
of
a
Liberty
.
of
a
Liberty
,
and
it
was
excepted
to
the
Declaration
,
that
it
was
not
alledged
the
Sheriff
made
a
Warrant
to
the
Bayliff
on
Execution
:
But
only
that
at
A.
aforesaid
,
by
virtue
of
the
Warrant
aforesaid
,
took
the
Prisoner
,
and
saith
not
,
within
the
Liberty
aforesaid
.
Sed
non
allocatur
.
Action
on
the
Case
on
Escape
brought
,
and
Profert
in
Curia
of
the
Will
.
the
Plaintiff
declares
,
That
the
party
was
in
Execution
at
the
Suit
of
his
Testator
;
its
good
,
without
saying
,
profert
in
Curia
of
the
Will
,
1
Roll.
Rep.
78.
Baron
and
Feme
brought
Escape
;
the
Baron
Escape
brought
by
Baron
and
Feme
.
arrests
the
Prisoner
with
a
Latitat
in
his
own
name
sole
:
And
now
he
declares
,
That
he
took
out
the
L●titat
eâ
intentione
to
charge
the
Prisoner
,
upon
a
Bond
made
to
the
Wife
dum
sola
fuit
;
and
by
Three
Justices
,
its
good
.
Action
on
the
Case
against
a
Bayliff
of
a
Liberty
on
an
Escape
by
a
Clerk
of
the
Hanaper
in
Chancery
;
and
declares
,
that
for
recovery
of
his
Debt
he
prosecuted
an
Attachment
of
Priviledge
,
directed
to
the
Sheriff
of
Middlesex
ad
respond'
placito
Trans
.
eâ
intentione
,
that
he
should
put
in
Bail
for
recovery
of
his
Debt
on
Bond
;
the
Sheriffs
of
Middlesex
directed
their
Warrant
to
the
Bayliffs
of
Westminster
,
and
he
arrested
him
,
and
suffered
him
to
escape
,
Cro.
Car.
329.
Mynn
and
Hinton
.
The
Declaration
is
naught
:
1.
Because
he
does
not
say
of
what
Liberty
he
was
Bayliff
,
or
whether
he
hath
Execution
or
Retorn
of
Writs
.
2.
He
alledges
he
had
an
Attachment
of
Priviledge
to
arrest
him
in
Trespass
,
intending
after
his
Appearance
to
Declare
in
Debt
,
which
cannot
be
unless
in
B.
R.
And
there
the
Reason
is
,
because
when
he
The
Reason
of
of
declaring
in
Debt
on
Trespass
in
B.
R.
appears
and
puts
in
Bail
,
he
is
supposed
to
be
in
custodia
Marescall'
,
&c.
and
declares
against
him
in
Custody
:
But
it
is
not
so
in
any
other
Court
.
Where
the
Sheriff
shall
have
his
Action
against
the
Prisoner
that
Escapes
,
and
how
he
shall
Declare
against
him
.
Upon
a
Voluntary
Escape
the
Sheriff
shall
not
have
an
Action
on
the
Case
against
the
Prisoner
.
Aliter
upon
a
Negligent
Escape
,
Mo.
597.
Sheriffs
of
N.
bring
Action
on
the
Case
,
and
Declare
:
Whereas
J.
S.
recovered
against
the
Defendant
in
Debt
of
,
&c.
and
a
Capias
ad
satisfaciend
▪
was
a
warded
against
him
,
by
force
whereof
they
directed
their
Warrant
to
three
Serjeants
,
&c.
to
arrest
him
,
who
did
arrest
him
26
Febr.
&c.
and
he
escaped
,
and
afterwards
was
not
found
in
the
same
County
,
per
quod
by
reason
of
the
same
Escape
they
were
bound
to
answer
the
Debt
ad
dampnum
,
&c.
The
Jury
,
on
Not
Guilty
,
found
that
he
was
arrested
about
the
26th
of
Febr.
and
to
this
Declaration
it
was
excepted
:
1.
They
alledge
they
made
a
Certain
Warrant
,
By
Warrant
,
and
not
said
sub
sigillo
.
and
say
not
sub
sigillo
sigillat
'
,
and
a
Warrant
without
a
Seal
is
insufficient
.
Per
Cur'
.
It
is
the
usual
Form
,
and
they
do
not
say
sub
sigillo
.
2.
They
say
they
are
chargable
with
the
Debt
;
but
say
not
,
that
they
were
charged
or
damnified
,
and
if
they
be
not
damnified
,
they
have
no
Cause
of
Action
:
For
perhaps
the
party
will
never
sue
them
,
or
they
may
dye
before
suit
,
and
then
the
Suit
is
gone
.
But
per
Cur.
Action
lies
on
this
Escape
before
Sheriff
may
have
the
Action
before
he
is
sued
.
they
are
sued
;
for
the
party
arrested
did
a
wrong
to
them
by
the
Escape
and
Rescous
,
and
they
are
always
chargable
to
the
other
party
;
and
if
they
stay
till
they
are
sued
,
perhaps
the
party
that
escaped
may
dye
,
or
fly
the
Country
.
3.
The
Arrest
and
Rescue
is
supposed
the
Jury
find
the
Rescue
circa
,
&c.
26th
of
February
,
which
is
uncertain
whether
it
were
before
or
after
that
Day
;
and
if
it
were
after
the
Day
,
it
will
not
maintain
the
Declaration
,
for
then
it
cannot
be
a
Rescue
the
26th
Day
.
But
per
Cur.
the
Verdict
is
good
before
or
after
the
Day
,
so
as
it
was
before
the
Suit
commenced
,
Cro.
El.
53.
Sheriffs
of
Norwich
versus
Bradshaw
.
If
Judgment
be
given
in
Debt
against
the
Sheriff
on
Escape
,
he
shall
have
an
Action
on
the
Case
against
the
party
that
escapes
,
altho'
the
Gaoler
Licenseth
him
to
escape
,
and
the
Gaoler
shall
not
plead
this
License
,
Mo.
p.
404.
n.
541.
Belchamber
and
Savage
.
Sheriffs
of
London
brought
Action
upon
the
Case
against
Paine
,
because
that
he
being
in
Execution
under
their
Custody
at
Spicer's
Suit
,
made
Escape
,
&c.
The
Defendant
confessed
all
the
Matter
;
but
further
pleaded
,
That
after
the
Escape
,
Spicer
had
acknowledged
satisfaction
(
being
after
the
Escape
)
upon
Record
of
the
Sum
recovered
.
Demurrer
.
Per
Cur'
,
The
Action
is
maintainable
,
tho'
the
Plaintiff
in
the
first
Action
had
acknowledged
satisfaction
,
the
payment
after
doth
not
take
aw●●
the
Action
,
but
mitigates
the
Damage
only
:
For
the
act
of
a
Third
person
shall
not
take
away
an
Action
once
vested
,
1
Leon.
237.
n.
321.
Offley
and
Saltington
versus
Paine
;
and
Hills
Case
there
cited
.
Fitzh
.
N.
B.
130.
b.
it
s
said
there
,
The
Plaintiffs
in
this
Action
ought
to
shew
,
that
they
had
been
impleaded
by
him
who
recovered
;
for
they
cannot
have
this
Action
before
they
are
sued
Qu.
CHAP.
XXIII
.
Of
Pleadings
by
the
Sheriff
to
Actions
brought
for
Escapes
.
What
shall
be
said
a
sufficient
Fresh-pursuit
,
and
where
upon
Fresh-pursuit
made
he
may
retake
the
Prisoner
,
or
not
:
And
where
the
Prisoner
,
upon
his
being
retaken
,
shall
have
his
Audita
Querela
,
or
not
.
Fresh-pursuit
,
how
to
be
pleaded
.
Pleading
the
Statute
of
Limitations
.
Pleading
acknowledgment
of
Satisfaction
on
Record
by
the
Plaintiff
,
or
accord
with
Satisfaction
.
Nultiel
Record
pleaded
,
and
how
.
Escape
by
the
Plaintiffs
Consent
.
By
the
Sheriff
,
License
.
Traverses
,
Supersedeas
,
Protection
,
Priviledge
pleaded
.
Bar
by
the
Voluntary
Escape
.
Venue
,
Issue
,
Evidence
and
Special
Verdict
.
Of
Escapes
of
Felons
.
Of
Pleadings
.
AS
for
the
Pleading
to
Escapes
directly
,
the
Defendant
either
denies
the
Escape
,
and
then
he
pleads
Non
permisit
ire
ad
Largum
,
or
else
he
confesseth
the
Escape
;
but
pleads
that
he
made
Fresh-pursuit
,
or
that
he
escaped
by
License
of
the
Plaintiff
.
There
are
other
Pleas
common
with
other
Actions
,
as
Statutes
of
Limitations
,
Satisfaction
,
Nul
tiel
Record
,
&c.
Nil
debet
.
But
I
shall
first
Treat
of
Pleading
Fresh-pursuit
:
And
as
to
the
right
understanding
of
that
I
shall
enquire
,
What
shall
be
a
sufficient
fresh
persuit
,
or
where
upon
a
fresh
persuit
of
the
Sheriff
,
he
may
retake
the
Prisoner
or
not
,
and
where
the
Prisoner
upon
his
being
retaken
shall
have
his
Audita
Querela
or
not
.
Tho
the
Prisoner
that
Escapes
be
out
of
the
view
,
yet
if
he
be
taken
in
recenti
Executione
,
he
shall
be
in
Execution
again
;
and
tho
he
fly
into
another
County
where
the
Sheriff
had
not
Power
,
yet
for
as
much
as
the
escape
was
of
his
own
wrong
(
whereof
he
shall
not
take
Advantage
)
the
Sheriff
may
retake
him
in
another
County
,
and
he
shall
be
in
Execution
.
And
fresh
persuit
is
not
that
he
must
have
him
alwaies
in
his
view
,
but
if
he
makes
fresh
persuit
,
so
that
it
doth
not
appear
fully
there
was
a
default
in
the
Sheriff
in
his
persuit
,
tho
he
be
a
day
and
a
night
out
of
his
view
,
yet
he
shall
be
said
to
be
in
Execution
for
the
party
against
his
will
upon
the
retaking
,
as
if
the
Prisoner
escape
to
an
House
,
and
the
Sheriff
sets
a
Watch
and
takes
him
when
he
comes
out
.
If
the
Gaoler
make
a
fresh
persuit
before
any
If
the
Sheriff
retake
him
on
fresh
persuit
before
Action
brought
he
shall
be
excused
.
Action
commenced
and
he
is
retaken
,
the
Gaoler
shall
be
excused
,
but
'
its
otherwise
if
before
the
Prisoner
be
retaken
the
party
brings
his
Action
,
for
at
the
time
of
the
Action
brought
he
had
good
cause
of
Action
;
but
it
seems
by
Winch
.
p.
35.
that
retaking
upon
fresh
suit
after
Action
is
good
,
but
not
after
Issue
joyned
.
Cro.
Jac.
657.
Whiting
and
Sr.
G.
Reynells
Case
.
Stow
Attorney
of
C.
B.
was
in
Execution
in
Norfolk
for
1000l
.
and
he
by
Practice
procured
himself
to
be
removed
by
Hab.
Corp.
before
Coke
Chief
Justice
at
the
Assizes
in
Lent
,
and
then
escaped
to
London
,
and
in
Easter
Term
following
the
Bayliff
did
retake
him
,
the
Opinion
of
the
Court
was
,
that
the
fresh
Suit
made
was
good
,
tho
he
took
him
again
at
the
end
of
the
year
,
if
inquiry
was
made
after
him
,
and
so
by
consequence
Action
for
false
Imprisonment
against
the
Bayliff
did
not
lie
.
Mich.
8.
Jac.
B.
C.
Stones
Case
.
If
the
Plaintiff
bring
his
Action
before
the
Sheriff
retake
him
,
or
if
the
Sheriff
does
not
If
the
Sheriff
does
not
make
fresh
persuit
.
yet
he
may
retake
him
.
make
fresh
persuit
,
yet
in
both
Cases
the
Sheriff
may
retake
him
,
and
keep
his
Body
in
Custody
till
he
agree
with
him
,
or
he
may
have
Action
on
the
Case
for
his
Tortious
escape
:
And
where
the
Prisoner
escapes
of
his
own
wrong
,
and
is
retaken
he
shall
never
have
an
Audita
Querel●
against
the
Sheriff
,
but
if
he
escapes
with
the
consent
of
the
Gaoler
he
cannot
retake
him
,
and
if
he
do
the
party
shall
have
Audita
Querela
:
If
one
in
Execution
escape
,
the
Sheriff
may
not
retake
him
but
upon
fresh
persuit
,
but
he
shall
Gaoler
makesfresh
persuit
,
and
before
he
is
taken
the
Prisoner
dies
yet
Action
lies
against
the
Gaoler
.
have
Action
on
the
Case
against
him
,
or
Trespass
quare
prisonam
fregit
.
3
Rep.
Ridgways
Case
.
Poph.
41.
mesme
Case
.
Jones
145.
Harvey
and
Reynels
Case
,
Cro.
Jac.
657.
Whitneys
Case
,
2
Rol.
Re●
282
,
283
,
mesme
Case
.
A
Prisoner
escapes
,
the
Gaoler
makes
fresh
persuit
,
and
before
he
hath
taken
him
the
Prisoner
dies
;
this
is
the
Act
of
God
,
and
yet
because
it
was
once
an
escape
,
the
Action
of
escape
lies
against
the
Gaoler
.
Poph.
p.
186.
Upon
escape
,
the
Sheriff
may
not
in
fresh
In
fresh
persuit
Sheriff
not
●o
break
open
a
Chest
.
persuit
enter
into
the
House
of
I.
D.
and
break
the
Chest
of
I.
N.
to
search
for
the
Prisoner
,
2
Rol.
Abrig
.
564.
Bennet
and
Gray
.
If
a
man
in
Execution
in
the
County
of
Devon
,
escapes
into
the
County
of
Somerset
,
where
he
is
taken
in
Execution
at
another
mans
Suit
,
and
after
the
Sheriff
of
Devon
,
on
fresh
persuit
finds
him
in
Prison
in
Somerset-shire
,
it
is
made
a
Question
,
how
he
may
charge
the
Sheriff
of
Somerset
with
the
first
Execution
,
or
put
the
party
in
Execution
seeing
he
shall
not
retake
him
.
1
Rolls
Abrig.
902.
Tho
Information
lies
against
the
Sheriff
for
Information
against
the
Sheriff
for
escape
escape
,
yet
it
lies
not
on
escape
after
taking
by
fresh
persuit
,
no
more
though
the
Information
be
depending
before
the
taking
,
so
that
the
Officers
diligence
appear
.
2
Keb.
384.
the
King
against
Sir
J.
Lenthall
,
Fresh
persuit
Pleaded
.
The
Plaintiff
counts
of
an
escape
in
London
,
and
the
Defendant
Justifies
the
retaking
in
Devon
;
so
that
the
escape
at
London
is
not
answered
,
it
s
naught
upon
Demurrer
;
but
when
the
Defendant
P●ac●
.
by
his
Replication
denies
not
the
fresh
Suit
,
but
by
Protestation
relies
upon
this
,
that
he
was
out
of
the
view
(
which
is
not
material
,
for
it
is
not
the
form
of
Pleading
to
say
he
had
him
in
his
view
,
&c.
)
it
appears
not
to
the
Court
that
he
had
cause
of
Action
,
now
this
Bar
is
sufficient
for
the
matter
,
but
insufficent
for
the
form
,
and
there
being
no
Demurrer
,
but
a
Replication
,
no
advantage
shall
be
taken
of
the
Bar
for
matter
of
form
,
3
Rep.
Ridgways
Case
,
Popham
p.
41.
Traverse
.
That
he
died
after
fresh
persuit
,
●ut
saith
not
ante
〈◊〉
bille
.
mesme
case
.
Action
on
the
Case
for
voluntary
escape
▪
Defendant
Pleads
,
he
escaped
in
November
by
negligence
and
Traversed
not
voluntarily
,
and
that
he
freshly
persued
and
took
him
,
and
that
postea
videlicet
27
Aug.
he
died
,
to
which
the
Plaintiff
Demurred
,
because
before
the
escape
,
and
especially
for
the
void
Traverse
.
But
Per.
Cur.
the
alledging
the
voluntary
escape
is
immaterial
,
and
the
Sheriff
chargable
without
it
,
and
he
need
not
Traverse
the
voluntary
escape
,
but
because
he
doth
not
say
he
died
ante
exhibitionem
billae
,
Judgment
for
the
Plaintiff
,
3
Keb.
55.
Read
and
Bovey
.
The
Plaintiff
declared
of
an
escape
voluntary
,
the
Defendant
shews
a
negligent
escape
,
'
its
good
without
a
Traverse
.
Latch
p.
200.
Harvey
and
Reynell
.
In
Debt
on
escape
,
Plaintiff
declares
that
the
Defendant
(
Sheriff
of
Devon
)
suffered
one
C.
who
was
in
Execution
to
escape
in
London
,
18
December
.
Defendant
Pleads
that
the
said
C.
escaped
the
16
December
in
Com'
Devon
,
and
that
he
freshly
persued
him
and
retook
him
the
17
December
,
and
reteyned
him
again
in
Execution
absque●●c
,
that
he
is
guilty
alit'
vel
alio
modo
.
On
Defendant
must
answer
to
the
Escape
mentioned
in
the
Declaration
as
to
time
,
&c.
Traverse
alit
.
vel
how
extend
.
alio
modo
.
On
nil
debet
in
Escape
which
may
be
given
in
Evidence
.
this
it
is
Demarred
;
because
the
escape
is
supposed
to
be
the
18
December
,
and
he
Pleads
the
escape
16
December
,
and
the
retaking
the
17
December
,
and
so
he
answers
not
to
the
escape
mentioned
in
the
Declaration
,
for
the
Traverse
aliter
vel
alio
modo
doth
not
answer
to
the
Time
,
but
to
the
manner
of
any
thing
alledged
,
and
Per
Cur.
the
Plea
is
ill
.
Cro.
Eliz.
439.
Ridgways
Case
.
On
nil
debet
Pleaded
in
escape
,
fresh
persuit
may
be
given
in
Evidence
;
so
a
release
or
any
thing
that
destroys
the
Duty
.
Vid.
supra
Tit.
Evidence
.
3
Keb.
308
Lutterel
and
Mosedell
.
Now
as
to
other
Pleas
,
and
the
formality
of
pleading
,
what
shall
be
good
or
not
,
the
Cases
following
are
of
great
consideration
to
instruct
us
in
that
useful
Learning
.
Debt
for
an
escape
is
not
within
the
Stat.
of
Statute
of
Limitations
.
Limitations
,
tho
Action
on
the
Case
is
;
the
words
of
the
Statute
are
,
All
Actions
of
Debt
grounded
on
any
Lending
or
Contract
,
without
special●●
,
shall
be
brought
within
six
years
,
1
Siderf.
205
,
206.
1
Sand.
38.
Now
first
,
This
Action
is
not
founded
on
any
Lending
or
Contract
;
here
is
a
Duty
created
by
the
Law
without
Lending
or
Contract
,
2
Inst.
388.
2.
This
Action
is
founded
on
a
Specialty
,
(
viz.
)
on
a
Statute
Law
;
for
at
Common
Law
no
Debt
on
Escape
lay
against
a
Gaoler
,
&c.
of
one
out
of
Execution
,
and
the
Statute
of
1
R.
2.
c.
12.
gives
the
Action
of
Debt
against
the
Warden
of
the
Fleet
;
and
this
Statute
by
Construction
,
extends
to
all
other
Gaolers
and
Sheriffs
,
1
Sand.
37
,
38.
Jones
and
Pope
.
Acknowledgment
of
Satisfaction
on
Record
is
Acknowledgment
of
Satisfaction
on
Record
.
a
good
Plea
.
The
Sheriff
brought
an
Action
on
the
Case
against
J.
for
making
his
escape
out
of
Execution
.
Defendant
pleads
,
Confessing
all
the
Matter
,
and
that
after
this
Escape
he
at
whose
Suit
he
was
condemned
,
had
acknowledged
satisfaction
on
Record
.
To
which
it
was
demurred
.
Per
Cur.
The
Plea
is
good
,
because
the
Defendant
is
to
be
charged
;
for
that
the
Plaintiffs
are
chargable
with
the
Debt
,
and
not
otherwise
;
and
the
Defendant
hath
pleaded
Satisfaction
acknowledged
on
Record
,
which
may
by
his
means
,
and
is
not
denied
;
for
otherwise
the
Plaintiff
might
have
shewed
the
Special
Matter
by
Replication
,
Cro.
Eliz.
237.
Salteston
and
Payne
.
Accord
with
satisfaction
,
is
no
Plea
.
In
Scire
Accord
with
satisfaction
.
fac
.
on
Judgment
in
Escape
,
on
Oyer
,
the
Defendant
pleads
Executio
non
;
because
that
after
the
Judgment
the
Defendant
assigned
the
Obligation
of
Security
of
T.
the
party
who
escaped
,
which
the
Plaintiff
received
and
accepted
.
To
which
the
Plaintiff
Demurred
.
And
per
Cur.
Accord
with
Satisfaction
is
not
pleadable
after
a
Judgment
,
3
Keb.
255.
Poole
and
Mosedell
.
Nul
tiel
Record
is
a
good
Plea
.
Debt
on
Escape
against
the
Sheriff
upon
a
Nul
tiel
Record
.
Capias
Utlagat
'
after
Judgment
:
Defendant
pleads
there
was
no
such
Record
of
the
Debt
and
Damages
.
It
is
a
good
Plea
on
Demurrer
,
1
Brownl
,
51.
Maddox
and
Young
,
Hob.
pag.
209.
In
Debt
on
Escape
one
may
plead
,
That
the
Command
of
the
Plaintiff
.
Plaintiff
commanded
him
to
let
him
out
of
Execution
,
Cro.
Car.
329.
in
Vesey's
Case
.
In
Scire
fac
.
on
a
Recognizance
,
as
Bail
in
a
Escape
by
consent
of
the
Plaintiff
pleaded
Writ
of
Error
in
the
Exchequer
Chamber
.
The
Defendant
pleads
,
That
the
Plaintiff
sued
a
Capias
ad
satisfaciendum
out
of
the
Kings-Bench
to
the
Sheriff
of
Middlesex
,
and
he
was
taken
in
Execution
thereon
,
and
suffered
to
escape
by
the
Plaintiffs
consent
.
The
Plaintiff
demurs
,
because
they
do
not
lay
a
place
where
the
Court
was
held
,
nor
where
the
party
escaped
by
Consent
,
2
Keb.
567.
Mod.
Rep.
19.
Prinn
and
Smith
.
Payment
of
the
Money
to
the
Marshal
is
no
Bar
;
but
payment
to
the
Sheriff
on
a
Fieri
fac
.
is
good
;
for
he
is
commanded
to
levy
the
Money
,
&c.
but
no
such
Authority
is
given
to
the
Sheriff
,
Sir
Tho.
Jones
p.
97.
Taylor
and
Baker
.
In
Escape
the
Defendant
pleads
a
Release
of
him
who
recovered
,
to
the
Prisoner
,
being
in
Execution
;
it
s
holden
no
Plea
.
Nil
debet
in
Debt
on
Escape
,
19
H.
6.
14.
As
to
Traversing
,
and
Forms
of
Pleading
.
In
Trespass
and
Imprisonment
the
Defendant
That
he
escaped
by
the
Sheriffe
License
,
is
good
without
a
Traverse
.
Justifies
by
virtue
of
a
Capias
,
and
the
Plaintiff
did
afterwards
escape
,
and
he
being
Sheriff
did
follow
him
by
virtue
of
the
said
Warrant
,
and
took
him
upon
the
Capias
.
The
Plaintiff
replied
,
He
escaped
by
License
of
the
Sheriff
,
and
Traverseth
the
latter
taking
by
virtue
of
the
Warrant
.
Per
Cur.
The
Traverse
is
idle
,
because
the
Plaintiff
had
sufficiently
confessed
and
avoided
;
and
if
he
escaped
by
the
Sheriffs
License
,
that
ought
to
be
the
thing
put
in
Issue
,
and
not
the
Traverse
,
1
Brownl.
197.
Hatton
and
Hunn
.
Action
on
the
Case
upon
Escape
was
brought
against
a
Serjeant
of
London
.
He
pleads
that
the
Sheriff
commanded
him
to
deliver
his
Prisoner
to
him
;
which
he
did
,
and
Traversed
,
that
he
was
guilty
of
the
Escape
,
Aliter
vel
alio
modo
.
Per
Cur.
The
Serjeant
is
an
Officer
of
the
Sheriff
,
and
the
usual
manner
of
Pleading
is
to
plead
,
That
the
Prisoner
was
in
custody
of
the
Sheriff
;
and
Sheriffs
in
London
may
make
their
Houses
their
Prisons
,
as
well
as
the
Counters
,
and
the
Bar
was
good
,
but
the
Traverse
was
ill
,
Siderfin
Traverse
,
That
he
is
guilty
of
the
Escape
.
Vid.
supr
.
p.
318.
Husband
and
Cole
,
2
Keb.
147.
mesme
Case
.
This
Plea
is
a
Confession
and
avoidance
,
and
the
Traverse
is
ill
.
But
per
Cur.
here
is
no
Escape
confessed
;
and
therefore
Not
guilty
should
have
Not
guilty
.
been
pleaded
,
and
not
to
take
a
Traverse
.
Debt
against
the
Sheriffs
of
London
upon
Escape
of
A.
The
Plaintiff
Declared
on
an
Execution
by
force
of
the
Recovery
,
and
that
the
party
was
in
the
Prison
of
Ludgate
,
sub
custod'
J.
S.
&
J.
D.
then
Sheriffs
,
1
H.
8.
and
that
he
so
continued
sub
custodia
J.
B.
&
J.
G.
2
H.
8.
and
so
continued
sub
custodia
J.
N.
&
J.
L.
3
H.
8.
and
then
was
suffered
to
escape
.
J.
N.
and
J.
L.
pleaded
,
That
before
the
Escape
at
such
a
Day
,
Anno
superiùs
in
Narratione
specificato
,
the
said
J.
D.
and
J.
S.
adtunc
Vicecomites
suffered
him
to
Escape
.
Per
Cur.
It
is
no
Plea
,
because
there
was
three
years
specified
in
the
Declaration
,
and
it
shall
be
taken
that
it
was
the
first
or
third
of
H.
8.
Plea
to
be
precise
as
to
time
.
when
they
were
out
of
their
Office
,
yet
it
is
meerly
induced
by
the
adtunc
Vicecomites
,
which
shall
lead
the
Intendment
to
be
in
the
year
in
which
the
Defendant
supposeth
they
were
Sheriffs
.
But
per
Cur.
that
sufficeth
not
,
but
the
Plea
must
be
alledged
in
Fact
;
and
therefore
the
Defendants
meaning
,
to
discharge
themselves
by
former
Escape
,
which
was
not
in
their
time
,
should
alledge
it
precisely
,
Dyer
66.
Serjeant
Minor's
Case
.
In
Debt
for
an
Escape
of
one
in
Execution
.
Defendant
pleads
Nil
debet
;
and
after
Issue
,
and
the
Cause
entred
for
Trial
,
the
Defendant
would
acknowledge
the
Action
with
relicta
verificatione
.
But
per
Cur.
this
he
may
not
do
without
the
assent
of
the
Plaintiff
;
for
many
defects
are
aided
by
Verdict
,
Sir
Tho.
Jones
Rep.
156.
Marshall
and
Cooling's
Case
.
The
Plaintiff
chargeth
the
Defendant
with
an
Escape
,
13
Ap.
18.
Jac.
and
the
Defendant
pleades
Escape
,
29th
Feb.
16
Jac.
which
was
a
year
and
two
days
before
the
Escape
alledged
by
the
Plaintiff
;
to
which
the
Defendant
made
no
answer
,
and
altho'
he
concluded
it
was
the
same
Where
the
time
is
material
the
conclusion
that
it
was
the
same
Escape
will
not
make
it
good
.
Escape
which
makes
the
Plea
good
where
the
time
is
not
material
,
yet
in
the
principal
Case
the
time
seems
to
be
material
;
for
the
Defendant
,
(
the
Marshal
)
Pleads
,
that
the
Prisoner
was
committed
to
him
by
Habeas
Corpus
,
and
that
he
remained
in
his
Custody
from
such
a
time
till
such
a
time
,
during
all
which
time
the
Plaintiff
never
prayed
to
have
the
said
Prisoner
in
Execution
,
Bridgmans
Rep.
p.
7.
Moor.
vers.
Sir
G.
Reynel
.
In
an
Escape
,
The
Defendant
confessed
that
Supersedeas
pleaded
but
the
Retorn
of
the
Wit
mistaken
.
H.
was
in
his
Custody
by
Latitat
retornable
Mercurij
Crast
.
Animarum
,
but
said
that
a
Supersedeas
came
to
him
(
which
varied
from
it
)
reciting
a
Writ
Retornable
die
Veneris
Crastino
Animarum
,
for
which
variance
the
Plaintiff
Demurred
as
being
not
the
same
Action
,
which
the
Court
agreed
,
1
Keb.
234.
Earl
of
Bedford
against
Austin
.
In
Action
on
Escape
,
in
Debt
on
Judgment
Protection
.
Defendant
Pleads
,
That
after
he
was
arrested
he
was
discharged
by
Protection
shewed
to
the
Bayliff
,
as
Servant
to
the
Earl
of
Bath
.
Per
Cur'
the
Plea
is
naught
,
1
Keb.
660.
Cockman
and
Symonds
.
In
Action
on
the
Case
on
Mean
Process
Sheriff
Pleads
,
That
a
Writ
of
Priviledge
came
to
him
Teste
Marquess
of
Newcastle
Retornable
at
Privilege
of
Sessions
pleaded
.
Sessions
:
Which
recites
,
that
by
the
Law
of
England
,
persons
shall
be
priviledged
in
going
to
and
retorning
from
the
Sessions
.
To
which
the
Plaintiff
Demurrs
,
and
the
Court
held
the
Plea
to
be
ill
;
yet
the
Court
were
in
doubt
upon
a
second
motion
,
whether
the
Priviledge
shall
extend
to
such
inferior
Courts
.
Also
it
is
ill
pleaded
,
not
shewing
where
the
Writ
issued
,
nor
where
the
Sessions
was
,
nor
whether
the
Discharge
were
in
Session
,
Siderfin
p.
269.
Clark
and
Mollinuex
,
3
Keb.
845.
Mesme
Case
.
In
Action
on
Case
for
Escape
and
false
Retorn
,
The
advantage
of
pleading
the
Statute
23
H.
6.
lost
by
Demurrer
.
if
the
Sheriff
Demurs
generally
upon
the
Declaration
,
he
loseth
the
advantage
of
Pleading
,
Stat.
23
H.
6.
c.
10.
vide
supra
.
Benson
and
Welby
.
Venire
.
In
Action
of
Escape
,
Venire
shall
not
be
charged
,
nor
in
Debt
:
For
these
may
be
all
over
England
,
1
Keb.
65.
Wright
and
Martin
,
Stiles
Rep.
341.
By
the
Marshals
Priviledge
,
the
Jury
on
Escape
were
changed
out
of
London
into
Middlesex
,
2
Keb.
818.
Crook
.
and
Mosedale
.
Hale
said
,
he
knew
him
after
Imparlance
ousted
of
this
Plea
;
but
here
the
Court
would
not
put
him
to
Plead
it
,
but
granted
a
Tryal
in
Middlesex
,
and
Escape
in
London
,
being
so
every
where
,
Cro.
El.
625.
Venire
is
most
proper
to
be
from
the
place
where
the
Escape
was
.
Action
is
brought
against
the
Defendant
as
Sheriff
for
the
Escape
of
R.
in
Norfolk
,
and
falsely
retorning
non
est
inventus
in
B.
R.
the
false
Retorn
is
not
the
principal
,
but
the
Escape
is
the
cause
of
Action
;
and
the
false
Retorn
which
is
also
made
in
Norfolk
is
but
Aggravation
,
the
Party
may
lay
it
in
either
County
,
2
Keb.
771.
Russel
and
Sucklin
.
Where
the
Venire
and
Retorn
differ
its
not
good
,
Hetly
.
83.
Per
Cur.
No
Cost
shall
be
on
Non-suit
in
this
Action
,
by
the
Stat.
32
H.
8.
Of
Escape
being
pleading
in
Bar.
It
has
been
adjudged
as
well
on
Scire
fac
.
as
in
Debt
,
that
to
plead
he
was
in
Execution
,
and
contra
voluntatem
of
the
Sheriff
escaped
,
is
no
Plea
.
No
tho'
it
were
by
permission
,
vid.
●
Keb.
305.
Ridly
and
Morslee
,
Cro.
Car.
24.
Robinson
and
Clapton
,
Vilner's
Case
,
Allenson
and
Butler
,
Symonds
and
Cottmar
.
To
a
Scire
fac
'
on
Recognizance
as
Bail
in
Escape
by
consent
.
Error
,
Defendant
Pleads
,
that
the
Plaintiff
after
Judgment
sued
a
Capias
ad
satisfaciend
'
out
of
the
Kings
Bench
,
and
that
the
Defendant
was
thereupon
taken
,
and
that
he
escaped
by
consent
of
the
Plaintiff
.
Per
Cur'
,
The
Plea
is
Ill
for
want
of
Place
,
it
is
not
said
where
the
Court
was
held
,
nor
whether
the
Party
escaped
by
consent
,
2
Keb.
567.
Moor.
Rep.
19.
Prin
and
Smith
.
To
Scire
fac
'
on
Judgment
in
Debt
,
Defendant
Bar
by
volutarily
Escape
ill
as
to
party
Plaintiff
.
pleads
a
Capias
ad
satisfaciend
issued
out
of
the
Court
of
Kings
Bench
,
and
that
he
was
taken
thereupon
,
and
on
Habeas
Corpus
out
of
the
Common
Bench
,
he
was
committed
to
the
Custody
of
the
Warden
of
the
Fleet
,
and
that
the
Warden
suffered
him
voluntarily
to
Escape
.
To
this
it
was
demurred
,
because
he
concludes
not
aright
:
And
per
Cur'
,
the
Execution
must
be
alledged
by
matter
of
Record
,
and
therefore
he
must
conclude
his
Plea
,
prout
patet
per
Recordum
:
The
difference
is
between
Process
that
requires
no
Retorn
,
and
the
Record
whereby
he
is
committed
is
shewed
.
The
Committitur
in
an
Action
of
Escape
is
but
inducement
,
but
in
a
justification
it
is
substance
.
Upon
a
Capias
or
Latitat
he
need
not
so
conclude
,
but
here
is
Matter
of
Record
also
,
here
the
Matter
of
the
Bar
is
not
the
Matter
of
Fact
,
but
the
having
sued
out
Execution
on
Record
.
And
Secondly
,
It
s
all
one
as
to
the
Party
,
whether
he
Escape
by
the
Sheriffs
negligence
or
voluntarily
.
If
the
Party
negligently
Escape
,
the
Party
and
the
Sheriff
may
take
him
again
,
but
if
voluntarily
,
then
only
the
Party
may
take
him
again
,
but
not
the
Sheriff
;
but
if
the
Sheriff
let
him
go
by
consent
of
the
Plaintiff
,
then
neither
can
take
him
;
and
Bar
by
voluntary
Escape
is
held
Ill.
Judgment
pro
Quer'
,
2
Keb.
p.
187
,
206.
Alenson
and
Butler
,
2
Keb.
802.
Vilner
and
Allen.
Until
of
late
time
the
Discharge
of
the
Gaoler
was
a
good
Discharge
.
As
in
3
Co.
Ridg
.
ways
Case
,
Hob.
Case
of
the
Earl
of
Essex
,
8
Rep.
Dr.
Drury's
Case
,
but
now
the
Law
is
taken
otherwise
.
Vide
supra
.
In
Audita
Querela
,
voluntary
Escape
in
the
Sheriff
is
no
good
surmise
,
but
that
the
Sheriff
may
retake
him
again
.
Vide
supra
.
1
Rol.
Ab.
902.
Trevillian's
Case
,
Hob.
202.
Sheriff
of
Essex
.
Escape
.
Of
Issue
,
Evidence
,
Special
Verdict
,
In
Debt
for
Escape
on
nil
debet
pleaded
,
the
On
nil
debet
,
Fresh
persuit
.
Defendant
may
give
Fresh
persuit
in
Evidence
.
And
by
Hales
,
at
a
Tryal
at
Bar
said
,
he
always
let
them
give
in
Evidence
Fresh
persuit
on
nil
debet
.
And
by
Wild
,
it
is
done
generally
,
Mod.
Rep.
116.
3
Keb.
305.
Mosedell's
Case
.
In
Action
against
a
Gaoler
upon
Escape
of
a
Evidence
in
Fresh
persuit
.
Prisoner
in
Execution
:
If
the
Issue
be
,
whether
the
Gaoler
immediately
after
the
Escape
made
Fresh
suit
after
the
Prisoner
,
&c.
and
the
Evidence
is
given
,
that
a
Prisoner
escaped
out
of
Prison
by
the
negligence
of
the
Keeper
,
and
is
absent
a
day
and
a
night
,
and
the
Keeper
knows
it
not
(
having
many
other
Prisoners
under
his
care
)
but
when
he
had
notice
of
it
,
he
immediately
makes
Fresh
suit
after
him
,
and
retook
him
:
This
is
an
immediate
Fresh
suit
to
Which
is
a
Fresh
persuit
.
maintain
the
Issue
,
for
covnenient
persuit
is
an
immediate
persuit
in
Law
,
2
Rol.
Ab.
681.
Hin●on
and
Sir
John
Lenthal
,
and
Elton
and
Sir
John
Lenthal
,
on
Evidence
at
the
Bar
,
where
the
Evidence
was
that
he
escaped
at
nine
a
clock
at
night
,
and
the
Notice
and
Fresh
Suit
on
which
he
was
retaken
,
was
the
next
Morning
at
nine
a
Clock
.
Issue
was
,
whether
A.
was
taken
by
a
Capias
at
the
Suit
of
B.
and
Evidence
was
taking
by
a
Capias
at
the
Suit
of
C.
and
th●●
a
Delivery
of
a
Capias
at
the
Suit
of
B.
to
the
Sheriff
,
its
good
Evidence
;
for
tho'
he
were
taken
before
,
yet
this
is
a
new
taking
in
Law
as
to
this
Execution
.
So
if
the
Issue
be
of
a
taking
on
a
Capias
ad
satisfaciend
'
,
and
Evidence
be
by
a
taking
on
a
Capias
Utlegat
'
,
or
pro
fine
with
a
prayer
of
the
Plaintiff
,
that
he
may
remain
for
satisfaction
.
Issue
was
,
whether
J.
S.
was
taken
with
a
Capias
.
Evidence
was
given
by
an
alias
Capias
.
And
good
,
Hob.
p.
54.
In
Debt
on
Escape
against
the
Marshal
,
and
Evidence
by
alias
Capias
.
Evidence
of
Fresh
persuit
.
Nil
debet
pleaded
.
The
Plaintiff
said
,
he
could
prove
that
the
Prisoner
was
at
London
three
long
Vacations
.
The
Evidence
was
an
Habeas
Corpus
ad
Testificand
'
and
that
the
Prisoner
went
down
too
long
before-hand
,
and
stayed
too
long
after
the
Assizes
were
done
at
Wells
,
and
that
he
went
60
Miles
beyond
Wells
before
he
retorned
again
.
Verdict
pro
Quer.
for
620
l.
Mod.
Rep.
116.
Mosedell's
Case
.
In
Escape
upon
a
Capias
retorned
,
ne
unques
Ne
unques
en
son
gard
how
tried
.
The
Prisal
how
tried
on
Cap.
not
Retorned
.
Imprisonment
on
the
Execution
how
to
be
tried
.
How
in
the
Case
of
Mayor
of
the
Staple
.
Arrest
in
one
County
and
Escape
in
another
where
to
be
tried
.
en
son
gard
shall
be
tryed
by
Record
:
But
upon
a
Capias
not
Retorned
,
the
prisal
shall
be
tryed
per
Pais
,
Rolls
2
Abr.
574.
The
Imprisonment
upon
the
Execution
,
and
not
for
other
cause
in
Escape
shall
be
tried
by
the
Record
.
But
in
Escape
against
the
Mayor
of
a
Staple
,
for
suffering
J.
S.
in
Execution
upon
a
Statute
Staple
to
go
at
large
,
if
the
Defendant
say
he
was
not
in
Prison
upon
the
Execution
,
but
upon
plaint
there
,
this
shall
be
tryed
per
Pais
,
and
not
by
Record
;
because
it
would
be
unreasonable
,
the
Defendant
should
certifie
a
Record
where
he
himself
was
concerned
.
In
Escape
upon
Arrest
in
one
County
,
and
Escape
in
another
County
;
upon
not
Guilty
this
shall
be
tryed
,
where
the
Escape
is
laid
,
for
the
Action
is
upon
the
Escape
,
Roll.
Ab.
602.
Action
on
the
Case
against
a
Sheriff
upon
Escape
in
London
,
and
the
Arrest
laid
to
be
in
Southampton
.
Per
Cur.
The
Visne
shall
be
where
the
Escape
was
,
because
that
is
the
ground
of
the
Action
,
and
not
where
the
Arrest
was
,
3
Cro.
Richbel
and
Goddard
.
Note
,
In
Action
on
the
Case
for
Escape
or
Deceipt
the
Court
will
not
charge
the
Visne
out
of
the
County
where
the
Plaintiff
supposeth
the
thing
to
be
done
,
Siderfin
p.
87.
In
Action
on
the
Case
against
the
Sheriff
of
York
for
an
Escape
,
and
declares
that
he
arrested
Charging
the
Visne
.
the
Prisoner
in
the
said
County
,
and
after
suffered
him
to
escape
at
D.
in
Com'
Nottingham
.
To
which
the
Defendant
pleads
not
Guilty
,
this
Issue
may
be
tryed
by
the
County
of
Nottingham
only
,
without
joyning
the
County
of
York
;
for
the
Action
and
Issue
is
upon
the
Escape
and
not
upon
the
Arrest
,
M.
40
&
41.
El.
B.
R.
Bennion
and
Watson
.
Debt
against
the
Marshal
for
suffering
T.
B.
in
Execution
at
the
Plaintiffs
Suit
to
Escape
.
Defendant
Pleads
,
he
did
not
suffer
him
to
Escape
.
And
gave
in
Evidence
,
That
T.
B.
brought
Evidence
on
non
per●isit
●re
ad
Larg
.
Attaint
to
Reverse
the
Judgment
,
and
upon
his
Prayer
the
Court
bailed
him
,
that
he
might
prosecute
the
Suit
with
effect
.
But
this
Bail
was
not
entred
of
Record
.
And
the
Court
held
it
good
Evidence
.
The
Escape
supposed
here
is
for
Bailing
is
the
Act
of
the
Court.
letting
him
go
by
Bail
,
which
is
the
act
of
the
Court
and
not
of
the
Marshal
,
and
may
well
be
given
in
Evidence
,
Cro.
El.
p.
5.
Vast
and
Gandy
.
By
Wray
,
upon
Execution
sued
after
Verdict
,
Bail
upon
Attaint
.
altho'
the
Party
Sues
Attaint
,
the
Court
usually
does
not
Bail
him
,
for
the
Verdict
is
intended
true
till
reversed
,
but
on
good
Considerations
they
may
:
And
tho'
the
Bail
be
not
entred
,
yet
the
Plaintiff
for
his
benefit
may
cause
it
to
be
entred
,
and
then
he
may
have
a
Scire
fac
'
on
the
Bail
,
and
so
is
not
at
any
mischeif
.
The
Party
being
charged
in
Mean
Process
when
Committitur
to
be
proved
.
he
was
in
Custody
,
the
Evidence
may
be
good
without
proving
any
Comittitur
;
but
if
he
were
in
Execution
the
Comittitur
upon
the
Roll
shall
be
proved
,
Siderfin
237.
the
King
and
Povey
.
In
Debt
sur
Escape
,
if
the
Defendant
Plead
No
Escape
pleaded
.
Evidence
no
Arrest
which
must
be
proved
in
Evidence
on
Escape
for
Mean
Process
.
nul
Escape
,
he
cannot
plead
in
Evidence
no
Arrest
,
Tryal
per
Pais
174.
Clayt
.
34.
Verdict
.
In
Debt
on
Escape
if
the
Plaintiff
Declare
of
Escape
against
two
and
sound
against
one
only
.
an
Escape
of
two
,
and
it
s
found
one
only
was
in
Execution
;
yet
the
Verdict
is
good
,
and
the
Plaintiff
shall
have
Judgment
,
Siderfin
p.
5.
Andrews's
Case
.
In
Debt
on
Escape
,
if
the
Plaintiff
Declare
of
the
Escape
of
Baron
and
Feme
out
of
Execution
On
the
Escape
of
Baron
and
Feme
,
the
Jury
find
the
Baron
only
in
Execution
.
on
Judgment
for
the
Debt
of
the
Wife
dum
sola
,
and
the
Jury
find
the
Husband
only
was
in
Execution
;
yet
the
Verdict
is
good
,
and
the
Plaintiff
shall
have
Judgment
.
The
Jury
found
not
that
the
Wife
was
taken
in
Execution
(
being
for
Debt
contracted
before
Coverture
,
)
Siderfin
p.
5.
Roberts
and
Herbert
.
1
Keb.
371.
Mesme
Case
.
Though
the
Verdict
find
an
Erroneous
Process
,
Verdict
finds
an
Erroneous
Process
.
yet
the
Sheriff
shall
not
take
advantage
thereof
.
As
in
Debt
on
Escape
,
and
special
Verdict
finds
an
alias
into
another
County
,
without
a
Capias
in
the
proper
County
,
and
that
I
was
in
Execution
and
escaped
.
Judgment
pro
Quer.
on
2
Cro.
1.
Pl.
1.
&
Co.
Dr.
Druries's
Case
,
because
the
Sheriff
is
a
Stranger
and
shall
have
no
advantage
thereof
,
3
Keb.
629.
Hide
and
Hillar.
One
rescued
himself
and
escaped
,
and
the
Verdict
on
Rescous
before
the
day
laid
,
or
after
.
Sheriff
brought
Action
on
the
Case
.
On
not
Guilty
,
The
Jury
sound
he
was
arrested
circa
the
26
of
Feb.
and
then
and
there
rescued
himself
.
Per
Cur'
be
the
Rescous
before
or
after
the
day
supposed
in
the
Declaration
its
good
enough
,
so
as
it
be
before
the
Suit
commenced
,
Cro.
El.
53.
Sheriff
of
Norwich
and
Bradshaw
.
Consideration
on
Assumpsit
,
about
delivery
of
Prisoners
in
safe
Custody
,
and
saving
harmless
of
Escapes
.
The
Sheriff
having
one
in
Custody
takes
Assumpsit
of
J.
S.
to
deliver
the
Prisoner
to
the
Bayliff
in
safe
Custody
,
this
is
a
good
Assumpsit
,
and
no
Escape
.
For
the
Court
will
not
intend
,
that
the
Bayliff
was
absent
from
the
Prisoner
,
Siderfin
p.
132.
Benskin
and
French
.
In
consideration
the
Plaintiff
(
who
sueth
as
Bayliff
)
would
permit
J.
S.
taken
in
Execution
to
Rest
in
the
House
of
N.
till
Friday
next
,
if
he
Escape
the
Defendant
would
pay
the
Debt
:
By
Hales
,
The
Consideration
is
good
in
Mean
Process
,
but
being
in
Execution
its
ill
.
But
the
Action
must
be
brought
by
the
Bayliff
or
nobody
;
but
consideration
to
make
a
Special
Bayliff
is
sufficient
to
save
harmless
.
This
is
no
Bond
or
Promise
taken
of
the
Prisoner
,
nor
of
any
for
him
,
therefore
'
its
not
within
the
Statute
,
2
Keb.
805.
Feake
and
Carter
,
1
Leon
p.
132.
Palmer
and
Smalbrook
.
The
Bayliff
assumes
to
save
the
Sheriff
harmless
of
all
Escapes
is
not
good
.
The
Declaration
is
,
That
a
Ca.
sa
.
on
a
Judgment
was
awarded
against
the
Defendant
to
the
Sheriff
of
Suff.
who
directed
his
Warrant
to
the
Plaintiff
as
his
Bayliff
to
serve
it
;
and
that
the
Plaintiff
assumed
to
the
Sheriff
to
save
him
harmless
of
all
Escapes
,
and
that
by
force
of
the
Warrant
he
arrested
the
Defendant
,
and
the
Defendant
intending
to
make
the
Plaintiff
to
be
charged
,
escaped
;
for
which
the
Plaintiff
in
the
first
Action
brought
an
Action
against
J.
C.
the
Sheriff
,
upon
this
Escape
,
and
recovered
,
and
J.
C.
brought
this
Action
on
the
Assumpsit
.
It
was
moved
in
Arrest
of
Judgment
,
that
there
is
no
sufficient
Cause
in
the
Declaration
to
maintain
an
Action
,
for
tho'
the
Sheriff
may
have
Action
on
the
Case
against
the
Prisoner
that
Escapes
,
yet
the
Bayliff
shall
not
have
it
.
Per
Cur'
.
For
the
Bayliff
was
not
chargeable
to
the
Sheriff
by
Law
but
by
Assumpsit
,
and
this
being
his
voluntary
Act
shall
be
no
cause
to
charge
the
Defendant
,
but
shall
only
make
himself
chargable
.
But
they
agreed
,
If
the
Bayliff
had
been
chargable
by
Law
,
without
such
Promise
,
Action
lay
for
him
against
the
Defendant
,
who
caused
him
to
be
charged
,
Cro.
El.
349.
Allerton
and
Harwood
.
In
Consideration
he
would
permit
him
to
go
at
Large
,
and
of
2
s.
paid
he
promised
to
pay
all
the
Mony
in
which
the
Party
was
condemned
in
Execution
.
Per
Cur'
the
Consideration
is
not
good
,
being
contrary
to
the
Statute
of
23
H.
6.
and
that
a
Promise
and
Obligation
was
all
one
,
and
tho'
it
be
joyned
with
another
Consideration
of
2
s.
yet
being
void
,
and
against
the
Statute
for
part
,
it
is
void
in
all
,
Cro.
El.
p.
199.
Tetherstons's
Case
.
Pl.
Dive
and
Manningham
.
Plaintiff
declared
,
Whereas
the
Defendant
was
arrested
at
his
Suit
on
Process
,
the
Defendant
in
Consideration
that
he
should
be
permitted
to
go
at
Large
,
promised
that
he
would
appear
at
the
day
of
the
Retorn
of
the
Prisoner
,
or
would
give
him
10
l.
and
he
did
not
appear
at
the
day
.
Per
Cur'
Its
a
good
Assumpsit
,
being
made
to
the
Party
which
had
Authority
to
dispense
with
his
appearance
:
Had
it
been
made
to
the
Sheriff
,
or
to
any
other
to
his
use
,
it
had
been
within
the
equity
of
the
Statute
of
23
H.
6.
Cro.
El.
190.
Millward
and
Clarke
.
Of
Escapes
of
Felons
.
All
Prisoners
are
such
,
either
by
Matter
of
Record
,
or
Matter
in
Fact
.
By
Matter
of
Record
,
when
one
present
in
Court
is
committed
to
Prison
by
the
Court.
There
if
the
Gaoler
has
not
him
ready
,
it
s
an
Escape
without
more
enquiry
,
(
unless
he
had
reasonable
excuse
)
and
the
Judges
will
set
the
Fine
presently
.
By
Matter
en
fait
,
a
Man
is
a
Prisoner
when
he
is
arrested
by
Sheriff
,
Bayliff
,
Constable
,
&c.
and
Escapes
,
there
the
Jury
ought
to
find
it
,
and
present
it
before
the
Justices
,
and
the
Justices
assess
the
Fine
.
Upon
a
Capias
for
Felony
,
the
Sheriff
Retorns
Cepi
Corpus
,
and
hath
not
the
Body
at
the
day
,
and
the
Sheriff
was
amerced
for
the
Escape
at
50
l.
By
some
it
is
Felony
in
the
Sheriff
to
suffer
a
Prisoner
to
Escape
.
vid.
Stat.
de
frang
.
Prisonam
.
If
the
Gaoler
suffer
the
Escape
,
its
Felony
in
him
,
and
forfeiture
of
the
Office
,
6
H.
7.
11.
10
H.
7
,
26.
9.
Rep.
98.
Co.
on
M.
Charta
.
Keil
.
195
,
196.
vid.
Dalt
.
567.
The
Statute
of
4
Ed.
1.
de
frangentibus
Prisonam
mittigates
the
Rigor
of
the
Common
Law
;
for
before
that
Statute
,
the
breaking
of
the
Prison
was
Felony
in
every
Case
,
but
now
it
is
not
Felony
,
but
where
the
Party
was
committed
to
Prison
for
Felony
,
2
Leon.
p.
161.
in
Borough
and
Holcrofts
Case
.
CHAP.
XXIV
.
What
act
of
the
Sheriffs
,
Bayliffs
,
&c.
shall
amount
to
False
Imprisonment
,
or
not
.
Pleading
by
Sheriffs
to
Actions
of
Trespass
,
False
Imprisonment
,
&c.
The
Rules
of
Pleading
in
such
cases
.
Justification
by
Mean
Process
.
As
to
the
Warrant
,
Time
,
Place
,
Quae
est
eadem
transgressio
,
what
it
refers
to
.
Traverse
of
the
Time
,
Place
,
Pleadings
and
Justification
by
Execution
;
by
Process
out
of
an
Inferiour
Court
of
Record
,
and
how
to
be
pleaded
.
What
acts
of
the
Sheriffs
,
Bayliffs
,
&c.
shall
amount
to
a
False
Imprisonment
,
or
not
.
IF
a
Bayliff
arrest
one
after
the
Writ
is
Retorned
,
Arrest
after
the
Writ
Retorned
.
Precept
from
an
Illegal
Court
.
Erroneous
Process
.
False
Imprisonment
lies
.
A
Precept
to
arrest
from
an
illegal
Court
will
not
save
the
Officer
from
an
Action
of
False
Imprisonment
,
Hob.
p.
61.
Trespass
,
&c.
will
not
lye
against
the
Sheriff
,
for
executing
Process
,
tho'
it
were
erroneous
,
Hob.
p
48.
Cox
and
Barnsly
.
One
asks
another
if
his
Name
be
J.
S.
who
Arrest
by
a
wrong
Name
.
said
,
Yes
;
on
which
he
arrests
him
by
a
Warrant
which
he
had
to
arrest
J.
S.
yet
False
Imprisonment
lies
,
Mo.
457.
Coot
and
Highworth
.
One
had
a
Capias
ad
satisfaciend
'
delivered
Arrest
after
Supersedeas
to
the
Sheriff
,
who
made
a
Warrant
●to
his
Bayliff
to
do
Execution
:
Afterwards
a
Supersedeas
was
awarded
and
delivered
by
the
Sheriff
,
the
Defendant
being
his
Bayliff
,
who
escaped
,
and
the
Defendant
retook
him
and
detained
him
in
Execution
:
This
second
is
False
Imprisonment
;
for
tho'
the
first
Imprisonment
was
legal
,
he
having
taken
him
by
virtue
of
a
Warrant
made
before
the
Supersedeas
awarded
and
delivered
,
he
not
having
notice
of
Supersedeas
was
excusable
.
But
the
detainment
in
Prison
was
afterwards
a
Wrong
.
For
he
being
the
Sheriffs
Servant
,
and
by
Intendment
having
time
given
him
sufficient
to
have
Notice
from
his
Master
,
ought
at
his
peril
to
take
notice
thereof
,
Cro.
El.
918.
Prince
and
Allington
.
The
Liberty
of
a
man
is
so
tender
in
the
eye
of
the
Law
,
that
a
small
thing
amounts
to
False
Imprisonment
.
As
in
a
Case
tryed
at
York
Assizes
,
one
Roberts's
Case
.
One
in
Execution
in
the
County
of
Lancaster
,
One
in
Execution
in
Com.
L.
desired
to
be
carried
into
the
County
of
Y
and
the
Defendant
stay'd
him
,
on
Not
guilty
its
False
Imprisonment
.
desired
to
be
brought
to
the
County
of
York
,
to
speak
to
his
Friends
;
and
being
there
endeavoured
to
make
his
escape
;
and
the
Defendant
commanded
to
stay
him
:
He
was
held
a
principal
Imprisoner
,
as
well
as
those
that
laid
hands
on
him
.
The
Defendant
pleaded
Not
guilty
.
Otherwise
had
it
been
had
he
pleaded
specially
,
(
viz.
)
That
the
Prisoner
was
brought
into
another
County
at
his
own
desire
.
But
the
Jury
honestly
gave
but
2d
damage
,
Roberts's
Case
at
York
Assizes
.
If
a
man
be
in
the
hands
of
the
Under-sheriff
in
Execution
for
Debt
,
and
the
Debtee
tells
the
Sheriff
,
that
the
Prisoner
has
satisfied
him
,
if
the
Sheriff
release
not
the
Prisoner
,
its
False
Imprisonment
to
detain
one
after
the
Plaintiff
hath
commanded
the
Sheriff
to
deliver
him
.
But
this
Case
is
more
fully
reported
in
Bulstr.
3.
96
,
97.
Withers
versus
Henly
Under-sheriff
.
A.
is
in
Execution
at
the
Suit
of
B.
aftewards
B.
Plaintiff
tells
the
Sheriff
he
had
made
a
Release
.
came
to
the
Sheriff
,
and
told
him
he
had
made
and
sealed
a
Release
of
the
Debt
to
the
Plaintiff
,
and
that
therefore
he
should
deliver
him
out
of
Execution
.
The
Sheriff
doth
not
so
,
but
after
keeps
him
still
in
Prison
.
The
Plaintiff
brings
Action
of
False
Imprisonment
.
It
lies
.
By
the
Stat.
1
R.
2.
c.
12.
One
being
in
Execution
shall
not
be
▪
suffered
to
go
out
of
Prison
by
Mainprise
,
Bail
or
Baston
,
without
making
gree
to
the
parties
,
unless
it
be
by
Writ
or
other
Commandment
of
the
King
;
and
the
detaining
him
after
this
amounts
in
Law
to
a
New
taking
.
For
the
restraining
of
his
Liberty
where
he
ought
to
have
it
,
is
a
Caption
in
Law
.
Here
the
Sheriff
ought
to
take
notice
of
the
party
Plaintiff
,
and
at
whose
Suit
he
is
in
Custody
.
By
Coke
,
Detainer
after
this
by
the
space
of
one
Hour
is
False
Imprisonment
,
(
a
Continuance
of
an
Inclosure
is
a
new
Nusance
.
)
If
he
would
have
helped
himself
here
,
he
ought
to
have
set
forth
that
he
knew
him
not
to
be
the
Plaintiff
,
who
told
him
of
the
Release
.
3
Bulstr.
96
,
97.
Withers
versus
Henly
Under-sheriff
.
The
Case
of
20
H.
7.
19.
differs
from
this
Case
,
because
the
Debt
,
of
the
King
was
satisfied
,
10
H.
fo.
3.
a.
1
Roll.
240.
mesme
Case
,
Cro.
El.
379.
mesme
Case
.
It
is
said
in
2
Keb.
33.
the
party
who
went
with
the
Sheriff
to
shew
to
him
where
the
Goods
were
(
in
Execution
)
the
Judgment
being
set
aside
afterwards
,
was
a
Trespassor
ab
initio
;
but
that
the
Sheriff
was
not
suable
nor
chargable
,
2
Keb.
33.
Turner
and
Felgate
.
It
was
agreed
in
Olliet
and
Bessey's
Case
,
Where
Action
to
be
brought
against
him
that
levied
a
Plaint
wrongfully
,
not
against
the
Officer
.
34.
Car.
2.
B.
R.
if
one
be
arrested
by
Process
out
of
an
Inferiour
Court
for
a
Cause
of
Action
,
which
does
not
arise
within
their
Jurisdiction
,
the
party
Plaintiff
may
well
maintain
his
Action
against
him
that
levied
the
Plaint
,
or
the
Officer
who
had
executed
it
,
Sir
Tho.
Jones
Rep.
p.
214.
Olliet
and
Bessy
.
Pleadings
by
the
Sheriff
,
Bayliffs
,
Gaolers
,
&c.
I
shall
lay
down
two
or
three
general
Rules
If
a
Sheriff
justifie
by
force
of
a
Capias
to
him
directed
,
he
shall
say
he
was
Sheriff
at
the
time
of
the
arrest
,
as
well
as
at
the
receipt
of
the
Writ
,
35
H.
6.
48
,
49.
If
the
Bayliff
justifie
by
force
of
a
Warrant
,
Warrant
.
he
ought
to
shew
the
place
where
the
Warrant
was
made
,
5
H.
7.
24.
Long
5.
101.
b.
In
Trespass
,
where
one
justifies
as
an
Officer
De
son
tort
demesne
.
to
do
Execution
,
De
son
tort
demesne
without
answering
to
the
Cause
is
no
Plea
,
19
H.
6.
7.
a.
In
False
Imprisonment
the
Defendant
may
shew
twenty
Causes
by
way
of
Justification
,
and
it
is
not
double
,
7
Ed.
4.
20.
Plowd
.
Comment.
86.
a.
Where
the
Sheriff
justifies
by
Execution
,
he
Retorn
of
the
Writ
.
must
plead
that
he
retorned
the
Writ
,
secùs
of
a
Bayliff
,
1
Leon.
p.
144.
Parkes
and
Mosse
.
If
a
Bayliff
justifie
by
force
of
a
Warrant
,
he
Warrant
.
need
not
say
hic
in
Cur'
prolat
;
for
the
Warrant
doth
not
continue
in
his
hands
;
but
he
retorns
it
to
the
Sheriff
,
1
Roll.
Rep.
327.
Curtis
and
Dowty
,
&
p.
221.
Bateman's
Case
.
Tho'
the
Proceedings
in
a
Court
be
irregular
,
On
Irregular
proceedings
in
a
Court
.
Warrant
.
yet
if
the
Court
has
power
to
issue
out
a
Capias
,
by
this
Warrant
the
Officer
may
justifie
in
False
Imprisonment
,
Mod.
Rep.
173.
If
a
Bayliff
justifie
by
reason
of
a
Warrant
,
he
ought
to
shew
the
place
where
the
Warrant
was
made
.
It
sufficeth
if
it
be
shewed
in
the
Rejoynder
,
5
H.
7.
24.
Justification
by
Mean
Process
.
The
Sheriff
ought
to
Retorn
his
Writ
,
otherwise
The
immediate
Officer
must
shew
the
Process
Retorned
.
Justification
is
not
good
:
But
it
is
not
so
with
the
Servant
.
False
Imprisonment
was
brought
against
the
Sheriffs
Bayliff
;
he
Justifies
by
the
Sheriffs
Warrant
on
Latitat
,
who
arrested
the
Plaintiff
,
and
required
the
Defendant
to
be
aiding
to
him
;
but
pleads
not
,
That
the
Writ
being
Retorned
was
executed
.
Yet
per
Cur.
its
good
;
for
the
—
has
no
means
to
reinforce
the
Sheriff
to
make
Retorn
thereof
,
Cro.
Car.
446.
Girling's
Case
.
In
Action
of
False
Imprisonment
,
the
Defendant
Justified
by
Process
to
the
Bayliff
out
of
the
Court
of
the
Honour
of
P.
and
does
not
shew
any
Process
was
Retorned
,
which
(
as
Girling's
Case
is
)
being
an
immediate
Officer
,
must
be
shewed
;
contra
of
an
Under-Officer
.
And
altho'
he
need
not
shew
forth
the
Letters
Patents
,
yet
it
must
be
specially
pleaded
such
a
Court
was
granted
,
and
that
virtute
,
&c.
2
Keb.
156.
Haywood
and
Wood.
If
the
Defendant
in
Justification
of
an
Arrest
pleads
,
That
a
Bill
of
Middlesex
was
prosecuted
against
the
Plaintiff
,
by
which
the
Sheriff
made
and
directed
a
Warrant
to
arrest
him
;
it
shall
Bill
of
Middlesex
intended
to
be
delivered
to
the
Sheriff
before
the
Arrest
.
be
intended
that
the
Bill
was
delivered
to
the
Sheriff
before
the
making
of
the
Warrant
,
till
it
be
specially
shewed
to
the
contrary
.
In
this
case
he
Justifies
by
Writ
to
the
Sheriff
,
and
Warrant
to
himself
,
1
Sand.
299.
Green
and
Jones
.
The
Causes
of
Demurrer
were
,
because
it
s
not
shewed
the
Writ
was
delivered
to
the
Sheriff
,
nor
the
Warrant
made
before
the
Arrest
;
and
also
for
that
it
s
not
averred
that
the
Writ
was
Retorned
.
But
non
allocantur
,
this
is
no
essential
Matter
,
nor
Traversable
:
And
the
Plaintiff
might
have
Replied
,
That
the
Arrest
was
before
the
delivery
of
the
Writ
,
else
the
Court
will
intend
it
to
be
delivered
,
being
said
that
Virtute
of
a
Writ
directed
to
the
Sheriff
and
warrant
the
Defendant
arrested
;
and
the
Writ
needs
not
to
be
Retorned
by
a
Bayliff-Errant
,
2
Keb.
338.
mesme
Case
,
&
p.
838.
844.
So
in
Scire
fac
.
on
Recovery
in
Action
on
the
Case
,
the
Defendant
pleads
no
Capias
issued
out
against
H.
delivered
to
the
Sheriff
.
Plaintiff
Replies
a
Capias
issued
out
,
and
Non
est
inventus
Retorned
;
but
says
nothing
of
the
delivery
to
the
Sheriff
.
Defendant
Demurs
,
and
Judgment
pro
Quer
'
;
for
the
Delivery
to
the
Sheriff
shall
be
intended
,
3
Keb.
668.
Holmes
and
Araker
,
Bail
for
H.
The
Time
when
a
Latitat
issued
forth
is
As
to
the
Time
of
the
taking
out
the
Writ
actually
,
and
the
Teste
of
it
.
Traversable
,
and
may
be
averred
otherwise
than
according
to
the
Teste
,
Per
totam
Curiam
;
for
a
Relation
shall
not
work
a
Wrong
,
2
Keb.
173
,
198.
Bolton
and
Johnson
.
If
a
man
be
taken
in
the
Vacation
by
a
Warrant
without
a
Writ
,
and
a
Latitat
be
procured
,
Teste
in
the
Term
,
that
Teste
shall
not
discharge
the
Wrong
done
after
the
Teste
,
and
before
the
actual
taking
out
of
the
Writ
;
but
the
Plaintiff
may
take
Issue
that
he
prosecuted
truly
.
But
in
Trespass
and
False
Imprisonment
,
the
Defendant
as
Sheriffs-Bayliff
Justified
by
a
Latitat
,
Teste
27
June
,
Trin.
Term
past
.
The
Plaintiff
Replies
,
That
the
said
Writ
was
really
and
actually
prosecuted
out
of
B.
R.
on
the
9th
of
August
,
which
was
after
the
Arrest
of
the
Plaintiff
.
Defendant
Demurs
:
And
per
Cur.
this
is
an
Estoppel
,
especially
in
case
of
a
Bayliff
,
whose
Warrant
might
be
before
the
Arrest
;
and
all
Writs
must
be
Teste
as
of
the
Term
,
and
the
Sheriffs
not
Retorning
the
Writ
,
or
the
not
having
any
,
shall
not
prejudice
his
Under-Bayliff
.
But
per
Cur.
a
good
Action
will
lye
against
the
Sheriff
or
Bayliff
of
a
Franchise
in
this
Case
.
But
in
Plunket
and
Green's
Case
,
in
the
same
Reporter
:
In
Trespass
and
False
Imprisonment
against
the
Sheriff
and
Bayliff
,
the
Defendant
Justified
by
Warrant
on
Writ
to
the
Sheriff
,
as
Long
and
Bolton's
Case
.
The
Plaintiff
Replies
,
No
Writ
was
then
taken
out
.
Defendant
demurrs
,
and
Judgment
pro
Quer
'
;
for
tho'
the
Bayliff
hath
Warrant
and
no
Writ
.
a
Warrant
,
yet
he
is
liable
if
there
be
no
Writ
;
contra
,
if
the
Writ
be
void
and
delivered
,
2
Keb.
705.
Plunket
and
Green
.
And
in
Bennet
and
Filkin's
Case
,
Trespass
and
False
Imprisonment
,
the
Defendant
Justifies
by
arrest
on
Latitat
.
Plaintiff
Replies
,
The
Writ
was
taken
out
after
the
Arrest
.
Defendant
demurs
.
Per
Cur.
the
ante-date
of
the
Writ
will
not
suffice
,
if
the
proceeding
be
after
.
And
Judgment
pro
Quer.
3
Keb.
Chancy
and
Rutter
.
And
as
to
Pleading
,
as
to
the
Time
,
Richardson
and
Pricket's
Case
is
to
be
observed
.
The
Plaintiff
supposed
the
Arrest
and
Imprisonment
to
be
10
Decemb.
29
Eliz.
Defendant
pleads
by
virtue
of
a
Warrant
from
the
Sheriff
he
did
arrest
and
imprison
him
the
2d
and
3d
day
of
December
before
;
absque
hoc
that
he
was
guilty
before
or
after
,
&c.
Plaintiff
Replies
,
He
was
guilty
of
the
Trespass
,
&c.
after
the
3d
day
of
December
,
prout
in
Narratione
suâ
specificatur
,
and
Issue
upon
this
,
and
well
enough
;
tho'
he
saith
only
,
he
was
guilty
after
the
3d
day
;
but
saith
not
,
and
before
the
Action
brought
.
For
when
it
s
said
,
He
was
guilty
after
the
3d
day
,
&c.
prout
,
&c.
it
is
to
be
intended
to
be
the
3d
day
,
and
the
day
of
which
he
Counted
,
Cro.
El.
95.
Richardson
and
Pricket
.
To
all
the
Imprisonment
,
but
11
Hours
,
the
Defendant
pleads
Not
guilty
,
and
to
the
Imprisonment
for
11
Hours
he
Justifies
as
Sheriff
;
for
that
the
Plaintiff
hindred
him
in
the
Execution
of
his
Office
,
and
said
nothing
to
the
Vi
&
armis
,
yet
good
,
1
Sand.
78.
But
this
Case
went
further
,
2
Keb.
237.
the
Trespass
and
False
Imprisonment
was
laid
the
1st
of
April
,
the
Defendant
Justifies
at
another
day
at
Warw.
as
Sheriff
,
absque
hoc
that
he
was
guilty
the
1st
of
April
,
or
at
any
time
before
or
after
,
while
he
was
Sheriff
,
or
at
any
other
place
.
Per
Cur.
This
Traverse
is
Traverse
of
the
Time
.
sufficient
,
and
the
Plaintiff
must
reply
and
shew
,
if
there
were
any
other
Assault
or
Imprisonment
.
Also
the
Traversing
the
Time
before
and
after
,
doth
not
lock
up
the
Plaintiff
from
assigning
another
day
and
place
,
especially
the
thing
being
Local
,
1
Sand.
78.
2
Keb.
237.
Law
and
King
.
Justification
in
False
Imprisonment
by
a
Writ
of
Supplicavit
de
bono
gestu
out
of
Chancery
,
and
arresting
him
by
the
Sheriffs
Warrant
thereupon
The
Justification
being
by
an
act
in
the
same
Time
,
quae
est
eadem
Transgress
.
County
,
and
justifying
all
the
Time
in
the
Declaration
,
tho'
it
do
not
agree
with
it
in
the
Day
,
but
concludes
quae
est
eadem
Transgressio
is
good
enough
,
the
Day
not
being
material
;
and
the
Replication
is
not
good
if
it
vary
from
the
Day
in
the
Declaration
,
Cro.
Car.
228.
Tyler
and
Wall
.
The
Case
was
Trespass
,
&c.
ultimo
die
Octob.
6
Car.
and
detaining
him
in
Prison
for
two
days
.
Defendant
justifies
,
because
13
Aug.
6
Car.
a
Writ
of
Supplicavit
issued
,
and
by
Warrant
from
the
Sheriff
to
the
Defendant
,
he
arrested
the
Plaintiff
21
Sept.
and
detained
him
two
days
,
&c.
quae
est
eadem
Transgressio
,
&c.
In
False
Imprisonment
in
London
versus
W.
Place
,
quae
est
eadem
Transgress
.
Defendant
justifies
in
Norfolk
,
by
force
of
a
Warrant
to
the
Sheriff
quae
est
eadem
Transgressio
,
absque
hoc
that
he
is
guilty
in
London
.
Plaintiff
demurrs
generally
:
1.
Because
the
Plea
is
double
;
for
the
Justification
Traverse
double
.
in
Norfolk
,
quae
est
eadem
Transgressio
,
had
been
sufficient
without
more
,
and
then
the
Traverse
makes
it
double
.
But
per
Cur.
you
shall
not
take
advantage
of
this
upon
a
General
Demurrer
,
General
Demurrer
.
1
Roll.
Rep.
221.
Bateman
and
Woodcock
.
2.
He
Justifies
by
Warrant
,
and
saith
not
hic
Warrant
,
hic
in
Cur.
prolat
.
in
Curia
prolat
.
Per
Cur.
They
need
not
shew
this
in
Court
;
for
it
appears
to
be
executed
,
and
that
the
Warrant
is
retorned
to
the
Sheriff
.
And
so
for
this
last
Point
is
1
Roll.
Rep.
327.
Curti●
and
Dowty's
Case
.
In
False
Imprisonment
the
Defendant
justifies
Justification
local
.
(
as
Sheriff
)
the
taking
the
Plaintiff
by
force
of
a
Capias
directed
to
him
at
D.
within
his
County
of
G.
where
the
Plaintiff
declares
of
an
Imprisonment
in
another
County
;
there
the
Traverse
of
the
County
is
good
.
For
the
Defendant
cannot
take
the
Plaintiff
by
force
of
the
said
Process
in
any
other
County
than
where
he
is
Sheriff
,
and
so
the
Justification
is
Local
,
3
Leon.
97.
in
Partridge
and
Pool's
Case
.
The
Defendant
justifies
the
Arrest
quousque
,
Justification
.
Bond
given
to
appear
in
B.
R.
absque
hoc
that
at
any
time
he
did
Arrest
without
reasonable
Cause
,
until
he
gave
such
Bond.
Plaintiff
demurrs
generally
.
Per
Cur.
The
Justification
is
good
,
and
the
Plaintiff
should
have
Traverst
absque
hoc
that
Traverse
.
he
was
arrested
and
detained
till
Obligation
to
appear
in
B.
R.
3
Keb.
165.
Dawson
and
Rawlinson
.
False
Imprisonment
.
Defendant
justifies
by
Arrest
,
De
injuria
sua
propria
to
a
Justification
by
virtue
of
●
Latitat
and
Warrant
.
by
virtue
of
a
Warrant
of
the
Sheriff
on
a
Latitat
.
The
Plaintiff
replies
,
De
injuria
sua
propria
absque
tali
causa
.
This
is
naught
upon
Demurrer
,
being
Matter
of
Record
;
but
Issue
being
taken
upon
it
,
and
being
in
the
Affirmative
,
it
s
a
Jeofail
,
and
good
after
Verdict
.
Judgment
pro
Quer'
.
1
Keb.
125
,
164.
Beesly
and
Walker
.
So
Osborn
and
Brook's
Case
.
The
Defendant
justifies
in
False
Imprisonment
,
because
a
Writ
of
Vi
Laica
removendâ
came
to
the
Sheriff
to
remove
the
Force
.
The
Plea
need
not
say
,
they
found
him
resistentem
in
eâ
parte
.
Vid.
supra
tit
.
Vi
Laica
removenda
.
President
,
Traverse
,
That
the
Defendant
was
in
Custody
by
force
of
a
Warrant
made
upon
one
Writ
,
and
not
by
Warrant
upon
another
,
1
Sand.
19.
Pleading
by
the
Sheriffs
Baliffs
.
Justification
in
Trespass
,
Trover
,
&c.
On
Execution
.
Where
the
Sheriff
justifies
by
Execution
,
he
must
plead
,
That
he
Retorned
the
Writ
.
Secus
of
a
Bayliff
,
1
Leon.
134.
Parkes
and
Mosse
.
In
Trover
of
300
Sheep
1
Dec.
36
El.
Defendant
pleads
,
That
he
was
Sheriff
of
Com.
Linc.
and
that
J.
S.
recoverd
against
the
Plaintiff
100
l.
and
upon
that
a
Fieri
facias
,
which
Writ
was
Retornable
Crastin
.
animar
.
35
Eliz.
that
this
was
delivered
to
him
1
Octob.
30
El.
that
he
on
the
20th
of
October
took
the
said
300
Sheep
,
and
on
22
Oct.
sold
104
Sheep
for
40
l.
and
that
the
other
Trover
,
and
no
Conversion
confest
in
the
Plea
.
192
Sheep
remained
pro
defectu
emptorum
;
and
at
the
same
Day
of
Crastin
.
animar
.
he
Retorned
the
said
Writ
,
and
all
this
Matter
,
the
which
is
the
same
Conversion
,
absque
hoc
that
he
Converted
them
aliter
vel
alio
modo
.
Per
Cur.
The
Plea
is
insufficient
;
1.
Because
by
his
Plea
he
doth
not
confess
any
Conversion
,
and
then
the
Traverse
is
ill
.
He
ought
upon
this
Matter
to
have
pleaded
Not
guilty
,
and
given
it
in
Evidence
.
2.
Because
the
Declaration
supposeth
the
Trover
Tr●verse
.
and
Conversion
to
be
the
1st
of
Dec.
36
El.
and
he
justifies
the
Conversion
in
Octob.
35
El.
so
he
meets
not
with
the
Plaintiff
in
time
,
and
therefore
he
ought
to
have
Traversed
it
,
and
the
Traverse
aliter
vel
alio
modo
,
to
what
it
●xtends
.
Traverse
aliter
vel
alio
modo
shall
never
answer
to
the
time
,
but
to
the
manner
of
the
Conversion
.
3.
He
makes
not
any
Justification
for
four
of
the
Sheep
,
but
that
he
seized
them
;
but
he
shews
not
what
he
did
with
them
,
Cro.
El.
433.
Ascue
and
Sanderson
.
Scire
fac
.
upon
a
Judgment
in
Debt
.
Defendant
That
the
Sheriff
levied
the
Debt
,
a
good
Plea
in
Scire
fac
.
pleads
a
Fieri
fac
.
directed
to
the
Sheriff
of
L.
for
levying
the
Debt
,
and
he
by
force
of
it
took
divers
Sheep
of
the
Defendants
for
the
Debt
,
and
yet
detains
them
.
Per
Cur.
It
s
a
good
Plea
,
altho'
he
do
not
alledge
that
the
Writ
is
Retorned
,
and
altho'
the
Writ
is
Conditional
,
Ita
quod
habeas
denarios
,
&c.
for
the
Plaintiff
hath
remedy
against
the
Sheriff
,
and
the
Execution
is
●awful
,
which
the
Defendant
cannot
resist
.
So
Rooke's
Case
,
vid.
ante
.
If
in
False
Imprisonment
the
Defendant
justifies
Where
De
injuria
sua
propria
is
not
a
good
Plea
.
by
a
Capias
of
the
Sheriff
,
and
a
Warrant
of
●he
Sheriff
to
himself
,
there
De
injuria
sua
propria
generally
is
not
a
good
Plea
;
because
a
Matter
of
Record
is
parcel
of
the
Cause
:
But
there
he
●ught
to
say
,
De
injuria
sua
propria
,
and
traverse
●he
Warrant
,
which
is
Matter
en
fait
,
8
Rep.
●rogat's
Case
.
D.
brought
Action
of
Assault
,
Battery
and
Execution
.
●mprisonment
of
his
Wife
against
W.
and
W.
in
●
.
B.
Defendants
plead
a
Special
Justification
,
(
viz.
)
That
in
Nov.
2
Jac.
Action
of
Trespass
was
brought
by
A.
against
Julian
G.
and
on
General
Issue
found
for
Julian
G.
and
Judgment
●or
her
;
and
afterwards
,
and
before
Execution
,
Julian
G.
marries
the
Plaintiff
D.
and
afterwards
Writ
of
Error
was
brought
in
B.
R.
and
upon
a
Scire
facias
against
the
said
Julian
,
Judgment
in
C.
B.
was
Reversed
;
and
afterwards
Ca.
sa
.
was
directed
to
W.
and
W.
the
Sheriff
to
take
the
said
Julian
G.
and
they
took
her
;
with
an
Averment
,
That
the
said
Julian
G.
and
the
Wife
of
the
now
Plaintiff
was
one
and
the
same
person
.
Plaintiff
demurrs
;
because
when
the
Warrant
Trespass
vers
.
A.
and
his
Feme
,
the
Feme
after
marries
,
and
her
first
Name
continued
in
▪
all
proceedings
.
is
against
Julian
G.
there
is
no
such
Julian
G.
for
by
her
marriage
with
the
Plaintiff
she
had
another
Name
,
and
his
Averment
cannot
help
him
,
because
it
agrees
not
with
his
Warrant
:
But
aliter
,
had
the
Variance
been
in
the
Name
of
Baptism
only
.
But
per
Cur.
the
Scire
facias
was
according
to
the
Judgment
in
the
C.
B.
and
well
then
might
all
the
subsequent
Process
be
so
:
But
if
the
Husband
had
come
upon
the
Scire
facias
,
and
shewed
how
that
she
was
Covert
,
then
the
Action
ought
to
be
against
both
of
them
▪
And
,
2.
The
parties
themselves
,
in
all
the
proceedings
throughout
,
have
all
admitted
that
she
is
the
same
person
,
and
had
the
same
Name
,
and
they
shall
be
concluded
from
saying
the
contrary
.
And
tho'
the
Sheriff
had
shewed
the
Marriage
,
this
was
but
a
bare
Allegation
and
A
bare
Allegation
of
the
Sheriff
▪
doth
not
make
a
thing
appear
Judicially
.
Suggestion
of
the
Sheriff
,
and
it
appears
no●
whether
it
were
Judicially
so
or
not
.
3.
It
would
be
dangerous
for
the
Sheriff
to
Retorn
a
Non
est
inventus
;
for
because
the
parties
have
all
admitted
her
Name
to
be
so
in
all
proceedings
,
the
Sheriff
shall
be
Estopped
also
,
3
H.
7.
10.
and
then
Action
on
the
Case
would
lye
o●
the
false
Retorn
,
if
the
Woman
should
be
in
th●
company
of
the
Sheriff
,
and
the
party
shew
her
to
the
Sheriff
,
and
she
escape
,
1
Brownl.
226
▪
Doyley
and
Webb
,
2
Bulstrode
80.
mesme
Case
.
In
Trespass
for
taking
Goods
.
Defendant
pleads
a
Recovery
in
the
Court
of
Dorchester
,
in
Debt
against
the
Plaintiff
,
and
Execution
upon
this
by
Fieri
fac
:
and
Justifies
the
taking
,
appraising
and
sale
(
by
Consent
)
of
the
Plaintiff
,
in
part
of
the
satisfaction
of
the
Judgment
recovered
,
Quae
est
eadem
captio
.
Plaintiff
demurs
;
because
the
Defendant
varying
in
the
time
of
the
taking
,
from
the
time
alledged
in
the
Declaration
,
he
ought
to
traverse
any
other
Taking
;
for
the
same
Goods
may
be
taken
at
several
times
,
and
the
Quae
est
eadem
captio
is
not
sufficient
;
as
Marshall
and
Dicken's
Case
,
Sir
Tho.
Jones
p.
146.
Allen
and
Chamming
.
But
per.
Cur.
the
Averment
sufficeth
,
Keilw
.
27.
1
Bulstr.
138.
Cro.
Car.
228.
Justification
in
Trespass
,
Assault
and
Battery
,
by
Process
out
of
an
Inferiour
Court
of
Record
,
is
not
good
without
shewing
whether
the
Court
was
holden
by
Charter
or
Prescription
,
Sir
Tho.
Jones
p.
165.
Strode
and
Deering
.
In
Trespass
of
Battery
,
the
Defendant
justifies
the
Process
to
arrest
one
Wood
,
and
the
Plaintiff
would
have
Rescued
him
,
whereupon
he
did
molliter
manus
imponere
.
The
Plaintiff
Replied
,
De
injuria
sua
propria
,
De
injuria
sua
proprt●
with
a
special
Traverse
.
absque
hoc
that
the
Defendant
had
virtute
of
such
a
Warrant
taken
,
as
that
by
which
the
Defendant
Justified
.
Defendant
demurs
.
Per
Cur.
The
Justification
is
sufficient
,
and
better
by
the
admittance
in
the
Replication
,
than
if
the
Issue
had
been
offered
De
injuria
sua
propria
generally
without
such
Traverse
,
2
Keb.
293.
Haywood
and
Wood.
In
Trespass
and
Imprisonment
,
the
Defendant
That
which
is
confessed
and
avoided
,
not
to
be
traversed
.
Justifies
by
a
Capias
,
and
that
the
Plaintiff
did
afterwards
Escape
,
and
he
being
Plaintiff
did
follow
him
by
virtue
of
the
said
Warrant
,
taken
out
upon
the
Capias
.
Plaintiff
Replies
,
He
escaped
by
the
License
of
the
Sheriff
,
and
traverseth
the
Later
taking
by
virtue
of
the
Warrant
.
Per
Cur.
The
Traverse
is
idle
▪
because
the
Plaintiff
had
sufficiently
confessed
and
avoided
;
and
if
he
escaped
by
the
Sheriffs
License
,
that
ought
to
be
the
thing
put
in
Issue
,
and
not
the
Traverse
,
1
Brownl.
197.
Hatton
and
Hunn
.
CHAP.
XXV
.
Of
Attachments
against
the
Sheriff
;
where
and
in
what
Cases
it
lies
or
not
.
And
where
against
him
for
a
thing
done
out
of
his
Office
.
Attachment
of
Money
in
the
Sheriffs
hands
.
Of
Attachments
against
others
,
and
against
the
Goods
,
and
the
Retorn
.
Of
Amerciaments
,
where
and
in
what
Cases
the
Sheriff
is
to
be
amerced
.
Of
Attachments
against
the
Sheriff
,
where
and
in
what
Cases
it
Lies
or
not
.
ATtachment
shall
not
be
granted
against
the
Not
for
the
Contempt
of
his
Bayliffs
For
frivolous
retorn
of
an
Hab.
Corpus
.
High-sheriff
,
for
the
Contempt
of
his
Bayliff
,
March
p.
54.
Attachment
against
the
Sheriff
for
a
frivolous
Retorn
of
an
Habeas
Corpus
.
The
Retorn
was
,
That
the
Committee
for
poor
Prisoners
ordered
he
should
not
bring
the
Body
till
they
had
consulted
with
the
Lord
Chief
Justices
:
And
an
alias
Habeas
Corpus
under
pain
of
80
l.
Stiles
Rep.
422.
Attachmant
against
a
Sheriff
for
refusing
to
For
refusing
to
bring
Money
into
Court
.
Not
retorn
of
Habeas
Corpus
.
For
executing
Process
against
the
Rule
of
Court
.
bring
Money
into
Court
.
Attachment
lies
by
the
Rules
of
the
Kings-Bench
,
for
not
making
a
Retorn
of
Habeas
Corpus
,
upon
a
pluries
Habeas
Corpus
issued
forth
,
Pr.
Reg.
tit
.
Attachment
.
Attachment
lies
against
a
Bayliff
,
for
executing
a
Process
of
this
Court
,
against
a
Rule
of
the
Court
having
notice
,
Pr.
Reg.
ibid
:
It
was
a
doubt
,
whether
Attachment
lies
Against
a
Sheriff
when
he
was
out
of
his
Office
for
a
misdemeanor
during
his
Office
.
against
a
Sheriff
when
he
was
out
of
his
Office
for
a
Misdemeanor
in
his
Office
.
Capias
was
delivered
to
the
Sheriff
against
J.
S.
and
the
Plaintiff
shews
him
to
the
Sheriff
,
and
he
saw
him
,
but
he
turned
about
and
said
I
cannot
see
him
,
and
after
Retorns
non
est
inventus
,
and
then
his
Office
determined
.
Dodderidg
and
Jones
granted
an
Attachment
against
him
,
tho'
he
was
out
of
his
Office
,
for
this
Contempt
during
his
Office
,
Latch
p.
176.
and
p.
217.
Dixons's
Case
.
But
they
two
denied
an
Attachment
against
a
late
Sheriff
,
for
retorning
non
invenit
emptores
,
and
then
his
Office
determins
,
and
he
detained
the
Goods
in
his
hands
.
Note
,
Attachment
of
Mony
in
the
Sheriffs
No
attachment
in
the
Sheriff
hands
.
hand
is
void
,
for
the
Sheriff
at
the
Retorn
of
the
Writ
ought
to
answer
for
the
Money
,
1
Leon.
p.
264.
Attachment
against
others
.
An
Atatchment
against
a
Man
is
a
non
omittas
Attachment
is
a
Non
omittas
.
in
it self
,
and
the
Sheriff
may
break
his
House
to
take
him
,
for
the
Writ
is
for
his
person
,
1
Rol.
Rep.
339.
Briggs's
Case
.
If
the
Party
Defendant
be
Attached
,
or
Distrained
by
Process
out
of
any
Court
of
Record
,
or
County
by
force
of
a
Justicies
,
&c.
Hundred
Court
,
or
any
Court
Baron
,
and
make
default
,
the
Goods
or
Issues
are
forfeited
,
and
upon
the
Attachment
the
Sheriff
,
or
other
Officer
may
take
the
Goods
with
them
.
[
](A34174-e106800-b)*
*
On
Attachment
the
Sheriffs
ought
to
Retorn
the
certainty
of
the
Goods
and
why
,
and
the
value
.
And
this
is
the
Reason
,
that
upon
the
Attachment
the
Sheriff
or
other
Officer
ought
to
Retorn
the
certainty
of
the
Goods
and
the
value
;
and
it
is
not
sufficient
to
Retorn
,
that
he
hath
Attached
or
Distrained
the
Defendant
by
Goods
to
such
a
value
,
and
so
upon
the
Distress
,
the
Issues
must
be
retorned
in
certain
,
because
they
are
upon
default
to
be
forfeited
,
vide
supra
tit
.
original
Process
,
3
Inst.
228.
The
Sheriff
is
to
bring
an
Attachment
upon
the
Writ
of
ne
exeat
regnum
until
he
finds
Sureties
,
1
Rol.
Rep.
313.
Where
and
in
what
Cases
the
Sheriff
is
to
be
Amerced
.
The
Sheriff
is
to
be
amerced
for
the
faults
of
For
the
faults
of
his
Special
Bayliffs
.
his
Special
Bayliffs
,
for
the
Sheriff
is
the
Officer
to
the
Court
and
not
they
.
But
if
the
Sheriff
Retorn
quod
mandavit
ballivo
,
&c.
qui
respondit
,
&c.
if
the
Retorn
is
sufficient
,
and
a
default
is
for
not
doing
according
to
the
Retorn
,
the
Bayliff
shall
be
amerceed
and
not
the
Sheriff
.
As
if
the
Where
the
Bayliff
shall
be
amerced
and
not
the
Sheriff
.
Sheriff
Retorn
quod
mandavit
ballivo
Libertatis
,
&c.
qui
respondit
qd'
cepit
J.
S.
according
to
the
Writ
,
and
he
shall
be
here
at
the
day
,
if
he
bring
him
not
at
the
day
,
the
Bayliff
shall
be
amerced
and
not
the
Sheriff
.
But
if
the
Chamberlain
of
the
County
Palatin
of
Chester
,
makes
an
insufficient
Retorn
to
the
Court
of
Common
Pleas
,
upon
a
Writ
issued
out
of
that
Court
,
the
Sheriff
shall
be
amerced
,
because
he
is
the
Officer
responsible
to
the
Court.
Now
in
Palmer
and
Marshes
Case
,
1
Brownl
.
36.
If
the
Sheriff
Retorn
quod
mandavit
ballivo
Libertatis
qui
sic
respondit
,
and
retorn
an
insufficient
Retorn
in
Law
,
the
Sheriff
shall
be
amerced
,
for
he
might
have
retorned
,
ballivus
nullum
responsum
dedit
.
[
](A34174-e106980-b)*
*
Amerced
for
the
insufficient
Retorn
of
the
Bayliff
of
a
Liberty
.
If
the
Sheriff
Retorn
feci
retornum
istius
brevis
G.
&
L.
[
ballivis
Libertatis
G.
qui
habent
retornum
brevium
&
Executionem
eorundem
,
qui
mihi
re●●onderunt
,
qd'
istud
mandatum
adeo
tarde
receperun●
per
manus
Attornat'
sequentis
qd'
nihil
inde
facere
potuerunt
;
the
Sheriff
shall
be
amerced
for
this
Retorn
,
for
he
ought
to
have
Retorned
it
to
the
Bayliff
time
enough
for
them
to
serve
it
,
Trin.
39
El.
B.
R.
Palmer
and
Marsh
,
1
Ed.
1.
13.
b.
If
no
Retorn
be
made
for
part
by
a
Bayliff
of
a
Liberty
,
the
Sheriff
shall
be
amerced
.
As
in
a
Praecipe
qd'
reddat
,
if
at
the
grand
Cape
the
Sheriff
Retorn
quod
mandavit
J.
Bayliff
of
a
Franchise
,
&c.
who
retorned
,
that
he
had
taken
the
Land
into
the
Kings
hands
;
and
speaks
nothing
that
he
had
summoned
the
Tenant
,
as
the
Writ
commands
him
,
the
Sheriff
in
this
case
shall
be
amerced
,
for
that
no
Retorn
is
made
of
part
,
4
H.
6.
25.
b.
By
the
Stat.
of
27.
H.
8.
24.
Amerciaments
for
insufficient
Retorns
of
Writs
,
made
by
Baliffs
of
Liberties
,
shall
be
set
upon
the
Heads
of
such
Bayliffs
,
and
not
upon
the
Sheriff
,
nor
upon
the
Lord
of
the
Franchise
.
If
the
Sheriff
be
amerced
by
the
Court
for
the
Increase
of
Amerciaments
.
not
doing
a
thing
belonging
to
his
Office
;
and
yet
he
continues
to
neglect
to
do
it
contrary
to
the
Rule
of
the
Court
,
the
Court
may
increase
the
Amerciaments
till
he
do
his
Duty
therein
.
But
Amerciaments
set
upon
the
Sheriff
upon
the
Amerciament
estreated
with
a
Respectuat
.
motion
of
the
Party
,
if
they
be
not
Estreated
into
the
Exchequer
,
may
be
with
a
Respectuat
'
(
that
is
)
be
respited
)
if
the
Party
grieved
,
who
caused
him
to
be
amerced
will
consent
thereunto
,
otherwise
not
,
Pract.
Reg.
p.
18.
If
upon
a
Latitat
the
Sheriff
do
Retorn
a
Cepi
Amerciament
for
not
Retorn
.
Corpus
,
and
the
Party
arrested
on
this
Process
doth
not
appear
at
the
day
of
the
Retorn
,
the
Sheriff
may
be
amerced
by
the
Court
;
yet
tho'
the
Sheriff
be
amerced
,
if
the
Party
arrested
do
appear
within
a
week
after
the
day
he
ought
to
have
appeared
,
the
Amerciament
may
be
taken
of
the
Sheriff
,
Pract.
Reg.
18.
If
a
Debt
be
levied
by
Fieri
fac
'
and
delivered
to
the
Plaintiff
,
and
the
Writ
is
not
retorned
,
yet
the
Execution
and
Sale
is
good
,
but
the
Sheriff
shall
be
amerced
for
the
Non-retorn
of
the
Writ
,
5
Rep.
Hoes
Case
.
It
was
moved
to
have
the
Sheriff
amerced
for
Not
for
retorning
too
small
Issues
.
retorning
too
small
Issues
:
Coke
said
we
cannot
do
so
,
for
(
saith
he
)
it
doth
not
lie
in
our
Conisance
,
whether
they
are
too
small
or
not
,
but
you
are
put
to
your
Amerciament
,
1
Roll.
Rep.
339.
Goates's
Case
.
A
Bishop
shall
be
amerced
for
an
Escape
100
l.
Amerciaments
for
Escape
of
persons
convict
.
a
Gaoler
shall
be
amerced
for
a
negligent
Escape
of
a
Person
Attaint
100
l.
and
if
one
convict
5
l.
2
Inst.
28.
An
Exigent
which
was
delivered
of
Record
(
to
the
Sheriff
)
was
imbesilled
,
and
the
Copy
thereof
was
retorned
by
the
Sheriff
,
and
he
was
amerced
for
the
Retorn
of
the
Copy
at
30
l.
and
for
imbesilling
the
Exigent
at
20
l.
5
H.
4.
5.
CHAP.
XXVI
.
Remedy
against
Sheriffs
,
Bayliffs
,
&c.
for
Male-feasance
.
As
imbesilling
an
Exigent
,
for
entring
into
a
Corporation
which
had
Retorna
Brevium
.
For
not
delivering
a
Supersedeas
to
the
new
Sheriff
.
For
concealing
or
substracting
a
Writ
.
For
refusing
sufficient
Bail
,
and
forcing
to
find
extraordinary
Bail
.
For
taking
sufficient
Bail
.
For
not
bringing
Money
levied
by
Fieri
fac
'
into
Court.
And
Stat.
of
Limitations
pleaded
.
Remedy
against
Sheriffs
,
Bayliffs
,
&c.
IF
the
Sheriff
in
his
Court
quash
an
Essoyn
Erroneously
,
For
quashing
an
Essoyn
.
without
the
consent
of
the
Suitors
;
Action
on
the
Case
lies
against
him
,
for
the
Party
cannot
have
his
false
Judgment
on
this
,
26
Assize
45.
If
a
Distring
as
Issues
to
the
Sheriff
to
Distrain
the
Defendant
in
the
Action
by
all
his
Lands
and
Chattels
,
&c.
and
the
Sheriff
Retorns
trop
petit
Retorns
Trop
petit
Issues
.
Issues
,
(
too
small
Issues
)
altho'
an
Averment
lies
by
the
Stat.
W.
2.
c.
43.
Yet
the
Plaintiff
may
well
have
his
Action
on
the
Case
against
the
Sheriff
,
because
it
appeareth
by
the
words
of
the
Statute
that
this
is
a
false
Retorn
,
and
the
words
are
qd'
Distringeret
,
by
all
his
Lands
and
Chattels
,
Ita
qd'
de
exitibus
eorum
,
&c.
so
that
if
he
do
not
Retorn
all
the
Issues
,
he
does
not
as
he
is
commanded
.
The
Statute
ordains
that
the
King
shall
have
the
Issues
,
but
restrains
not
any
Remedy
that
the
Plaintiff
had
at
Common
Law
,
3
Car.
1.
Dorothy
Bennet
against
the
Sheriff
of
London
.
If
the
Sheriff
imbesil
an
Exigent
delivered
to
For
imbesilling
an
Exigent
.
him
at
my
Suit
,
Action
on
the
Case
lies
tam
pro
Dom'
Rege
quam
pro
meipso
,
41
Assize
12.
A
Knight
for
the
County
brought
Action
For
not
levying
Expences
in
Parliament
.
against
the
Sheriff
,
for
not
levying
10
l.
4
s.
for
his
expences
in
attendance
in
Parliament
,
17
Ed.
3
B.
R.
Rot.
The
Sheriff
was
punished
in
the
Star-chamber
,
for
neglecting
to
Execute
a
Capias
Utlagat
'
after
Judgment
,
Hob.
264.
Action
on
the
Case
lies
against
a
Sheriff
,
for
For
entring
into
a
Corporation
which
had
retorna
brevium
.
entring
a
Corporation
which
had
Retorna
brevium
,
1
Rol.
118
,
119.
The
Town
of
Darby
vers.
Foxhen
.
J.
S.
recovered
a
Debt
against
Calthrop
,
and
procured
a
Writ
of
Execution
to
W.
P.
Sheriff
of
D.
but
before
the
Writ
was
executed
,
Calthrop
procured
a
Supersedeas
to
the
said
P.
who
when
his
time
was
out
,
delivered
all
the
Writs
to
the
new
Sheriff
,
but
not
this
Supersedeas
;
so
that
J.
S.
procures
a
new
Writ
of
Execution
to
For
not
delivering
a
Supers●deas
to
the
new
Sheriff
the
new
Sheriff
,
upon
which
18
of
Calthrops
Beasts
were
taken
.
And
he
brings
his
Action
against
P.
for
not
delivering
over
the
Supersedeas
.
By
the
Prothonotaries
,
the
Course
is
to
take
a
new
Writ
to
the
new
Sheriff
.
But
the
Court
inclined
that
the
Action
lay
;
for
the
Writ
to
the
old
Sheriff
is
,
quod
comitat'
praed'
una
cum
brevibus
rotulis
memorandis
&
omnibus
officium
illud
tangen
.
And
an
Action
will
lye
,
for
not
delivering
some
Writs
to
the
new
Sheriff
,
which
is
not
retorned
,
as
Estrepment
,
Mod.
Rep.
222.
Calthrop
and
Phillips
.
He
at
whose
Suit
the
Party
arrested
Rescues
himself
and
Escapes
from
a
Special
Bayliff
or
Bayliff
errant
,
shall
have
Action
against
the
Sheriff
only
.
Vid.
tit
.
Under-sheriff
,
Atterton
and
Harwood
.
Warrant
on
Fiere
fac
'
is
directed
to
the
Under-sheriff
Against
undersheriff
for
concealing
a
W●it
.
of
a
Liberty
,
and
he
levies
the
Debt
but
conceals
the
Writ
;
Action
on
the
Case
lies
against
him
,
M.
12
Jac.
B.
R.
Bell
and
Satesby
.
If
the
Sheriffs
Deputy
substracts
a
Writ
which
Against
the
Sheriffs
Deputy
for
not
substracting
a
Writ
.
Bayliff
of
Liberty
chargable
for
his
Servant
.
is
to
be
retorned
,
Action
lies
against
the
Sheriff
.
And
yet
the
Deputy
may
be
punished
for
this
falsity
by
deceipt
,
19
H.
6.
71.
b.
Servant
of
a
Baliff
of
a
Franchise
,
Sworn
by
Deputation
to
serve
Process
but
of
such
a
Sum
,
and
he
serves
Process
of
a
greater
Sum
without
Warrant
,
and
levies
the
Money
,
and
parts
with
it
,
the
Bayliff
shall
be
chargable
,
Hetley
p.
12.
Sir
John
Lenthal
(
his
Prisoner
having
agreed
For
not
discharging
a
Prisoner
without
paying
Action
Money
.
with
his
Creditors
)
would
not
discharge
him
,
without
paying
to
him
Action-Mony
,
By
Glyn
S.
J.
there
are
two
Remedies
against
him
.
Action
of
false
Imprisonment
,
or
Indictment
for
Extortion
.
Fees
must
be
paid
and
no
more
,
Stiles
Rep.
454.
Welberly
and
Sir
John
Lenthall
.
Vid.
tit
.
Fees
.
But
Bayliff
of
a
Liberty
is
not
chargable
for
the
Gaoler
.
Vid.
supra
.
As
for
what
Remedy
there
is
against
the
Sheriff
for
refusing
sufficient
Bail
,
the
Law
stands
thus
.
If
a
Sheriff
or
Mayor
refuse
sufficient
Bail
,
For
refusing
suffient
Bail
.
against
the
Statute
of
23
H.
6.
c.
10.
by
which
the
Penalty
of
40
l.
is
given
,
one
Moiety
to
the
King
,
and
the
other
to
the
Party
who
will
Sue
for
it
.
In
this
Case
no
Action
lies
by
Bill
in
the
Kings
Bench
against
the
Sheriff
,
&c.
Because
the
Statute
of
18
Eliz.
is
,
That
no
person
shall
Sue
any
Penal
Statute
but
by
information
,
or
original
Action
and
not
otherwise
.
But
Note
,
It
is
not
limited
by
the
Statute
of
23
H.
6.
c.
10.
how
the
Penalty
shall
be
recovered
,
but
generally
that
he
shall
forfeit
40
l.
one
Moiety
to
the
King
,
and
the
other
to
him
that
Sues
,
3
Inst.
194
,
6
Rep.
17.
Gregories's
Case
,
1
Rolls
Ab.
537.
Whidiston
and
Clerk
.
Action
on
the
Case
doth
not
lie
against
a
Sheriff
,
For
taking
insufficient
Bail
.
for
suffering
a
Prisoner
to
go
at
large
,
upon
the
taking
insufficient
Bail
.
vid.
supra
.
pasc
.
2
Jac.
C.
B.
in
the
Case
of
the
Lady
Mounson
against
the
Sheriff
of
Lincoln
,
for
taking
insufficient
security
upon
Stat.
of
23
H.
6.
It
was
adjudged
,
That
the
death
of
one
of
the
Sheriffs
did
not
abate
the
Writ
,
2
Sanders
.
5.
Postern
and
Hanson
,
Hutton
p.
120.
Metcalf
and
Hodyson
p.
77.
Trevor
and
Michelbourn
,
1
Keb.
56.
Stalford
and
Bateman
.
Action
on
the
Case
lies
against
the
Sheriff
,
Action
of
the
Case
against
the
Sheriff
for
not
bringing
Money
into
Cour●
levied
by
Scire
fac
.
Statute
of
Limitatitions
pleaded
.
for
that
he
levied
such
a
Sum
of
Money
on
a
Fieri
fac
'
at
the
Suit
of
the
Plaintiff
,
and
brought
not
the
Money
into
the
Court
at
the
day
of
the
Re●orn
.
The
Defendant
pleaded
the
Statute
of
Limitations
21
Jac.
It
s
Ill.
An
indebitatus
Assumpsit
would
lye
against
the
Sheriff
in
this
Case
,
or
against
his
Executors
,
and
then
the
Statute
might
be
pleaded
.
If
the
Fieri
fac
'
had
been
retorned
,
the
Action
would
have
been
grounded
upon
the
Record
,
and
its
the
Sheriffs
fault
that
the
Writ
is
not
retorned
:
But
however
Per
Cur'
,
the
Judgment
in
this
Court
is
the
Foundation
of
the
Action
.
And
so
Judgment
pro
Quer.
that
is
not
within
the
Statute
of
Limitations
,
Mod.
Rep.
24.
Action
on
the
Case
against
a
Bayliff
for
concealing
a
Scire
fac
'
,
after
he
had
levied
the
Money
upon
it
,
1
Roll.
Rep.
78.
One
is
Arrested
for
600
l.
and
forced
to
find
extraodinary
Bail
.
Action
on
the
Case
lies
.
CHAP.
XXVII
.
Of
the
Sheriffs
demeanor
in
Assignment
of
Dower
,
and
the
Retorn
.
The
Proclamations
.
The
Sheriffs
Office
about
Partition
.
His
demeanor
in
the
Writ
De
Ventre
inspiciendo
.
About
Retorning
a
Force
.
About
a
Vi
Laica
removenda
.
How
the
Sheriff
shall
demean
himself
in
a
Writ
of
Enquiry
of
Waste
;
and
of
the
Retorns
thereof
.
Of
the
Writ
of
Estrepement
,
and
the
Retorn
.
The
Sheriffs
Office
in
a
Writ
of
De
Excommunicato
capiendo
.
Retorns
of
Sheriffs
,
as
to
Clerks
.
Retorn
of
a
Writ
of
Entry
.
Retorn
of
an
Assize
,
Quare
Impedit
,
De
Malefactoribus
in
parcis
.
Of
the
Sheriffs
demeanour
in
Assignment
of
Dower
,
and
the
Retorn
.
THe
Sheriff
may
not
assign
Dower
against
Common
Right
.
If
the
Sheriff
assign
one
Mannor
upon
Dower
recovered
of
three
Mannors
,
it
s
not
good
;
it
Mannor
.
ought
to
be
a
Third
part
of
each
:
But
he
may
Assign
all
the
Meadow
,
Pasture
,
&c.
Mo.
12.
n.
47.
—
19.
n.
66.
12
Ed.
4.
2.
contra
.
And
if
a
Woman
be
dowab●e
of
a
Mannor
,
the
Sheriff
may
assign
the
Third
part
of
the
Mannor
in
Common
instead
of
Dower
,
without
setting
out
by
Metes
and
Bounds
;
so
assigned
in
Chancery
,
Anc.
Ent.
Qu.
Imp.
529.
10.
If
a
Woman
be
endowed
of
an
Advowson
,
she
Advowson
.
shall
be
assigned
the
Third
part
of
the
Advowson
,
and
not
only
the
'
shird
part
of
the
profits
,
(
viz.
)
the
Third
presentation
,
17
Ed.
3.
8.
b.
If
a
Woman
recover
Dower
of
a
Rectory
Rectory
Impropriate
.
Impropriate
where
there
is
not
any
Glebe
,
the
Sheriff
shall
put
her
in
possession
of
the
Third
part
of
the
Tythes
generally
,
and
not
of
the
Tythes
of
the
Land
,
which
issue
out
of
any
Third
part
of
the
Land
of
the
Parish
in
certain
,
Mich.
9
Jac.
B.
per
Cur.
The
Writ
of
Drwer
was
de
Tertia
parte
Rectoriae
de
D.
and
upon
that
the
Grand
Cape
issued
,
Cape
in
manus
nostr
as
tertiam
partem
Rectoriae
,
&c.
and
the
Sheriff
by
Colour
of
this
Writ
took
the
Tythes
,
severed
from
the
Nine
parts
,
&c.
It
s
an
ill
Seisure
,
1
Leon.
p.
92.
Mitchel
and
Hide
.
The
Sheriff
may
assign
a
Rent
in
lieu
of
Rent
in
lieu
of
Dower
.
Dower
,
20
Ass.
41.
7
H.
6.
34.
So
a
Rent
out
of
the
same
Land
.
If
the
Sheriff
assign
Dower
by
Writ
to
him
In
Partition
.
directed
,
and
doth
not
Retorn
the
Writ
,
yet
she
is
Lawfully
seised
of
Dower
.
Aliter
in
a
partition
by
Writ
;
for
there
a
second
Judgment
ought
to
be
given
,
Cro.
El.
Ashborough's
Case
.
The
Retorn
of
the
Sheriff
in
Assignment
of
Certainty
of
the
Retorn
.
Dower
need
not
have
such
precise
Certainty
,
as
Declarations
and
Indictments
;
therefore
the
Retorn
was
,
Quod
habere
fecit
seisinam
de
13
Messuagiis
,
sive
Tenement
is
,
cum
terris
&
pratis
eisdem
pertinentibus
tune
vel
nuper
in
tenura
,
&c.
it
s
good
enough
;
and
when
he
saith
in
the
end
,
he
delivered
them
all
by
Metes
and
Bounds
,
it
is
sufficient
,
Cro.
Jac.
621.
Sir
Ch.
Howard's
Case
.
It
was
moved
for
amendment
of
Assignment
Amendment
of
Assignment
of
Dower
.
of
Dower
,
being
Under-value
,
and
on
refusal
of
an
equal
division
profered
to
him
by
the
Dowager
,
with
liberty
to
chuse
which
two
parts
he
would
for
the
Heir
.
Which
the
Court
Ordered
,
and
Committed
the
Sheriff
for
taking
of
60l
.
of
the
Lady
Longvill
,
to
execute
his
Writ
of
Execution
;
and
Information
was
brought
against
him
,
1
Keb.
743.
Longvill's
Case
.
As
to
Proclamations
in
Dower
.
Where
the
Sheriff
Retorned
,
He
had
proclaimed
the
Contents
of
the
Writ
;
this
was
held
insufficient
,
for
he
must
Retorn
,
That
he
made
Summons
of
the
Land
.
The
Sheriff
upon
the
Statute
of
31
Eliz.
if
he
make
Proclamation
at
the
most
usual
Door
of
the
Church
,
tho'
part
of
the
Land
lye
in
another
Town
in
the
same
County
its
sufficient
,
tho'
the
words
of
the
Statute
are
Parishes
,
or
Chappels
.
And
tho'
there
be
no
actual
Summons
,
but
only
the
Names
of
the
Summoners
,
its
good
;
for
that
is
all
the
Form
at
Common
Law
,
and
the
Statute
alters
not
that
,
Hob.
p.
133.
Allen
and
Walker
.
The
Forms
of
Retorns
;
as
Proclamation
at
the
Church-door
,
the
Retorn
of
a
Writ
of
View
,
the
Retorn
of
a
Writ
of
Seisin
in
Dower
,
the
Retorn
of
a
Writ
of
Enquiry
of
Damages
in
Dower
,
vid.
Dalton
c.
56.
In
Dower
of
Freehold
in
M.
magnâ
and
M.
parvâ
,
the
Sheriff
retorned
pleg'
de
prosequendo
J.
D.
J.
R.
and
the
Names
of
the
Summoners
J.
D.
and
R.
F.
and
after
the
Summons
made
,
and
by
the
space
of
14
Days
and
more
,
before
the
Retorn
of
the
said
Writ
,
at
the
most
usual
Church-door
of
M.
magna
,
where
part
of
the
Tenements
lay
,
on
the
27th
of
Octob.
being
the
Lords-day
immediately
after
Sermon
in
that
Church
,
he
publickly
proclaimed
all
and
singular
things
contained
in
the
Writ
,
to
be
proclaimed
according
to
the
form
of
the
Statute
in
that
behalf
made
and
provided
,
L.
P.
Armig.
Vic.
Per.
Cur.
It
s
sufficient
to
make
Proclamation
at
Proclamation
at
any
of
the
Churches
where
the
Lands
lye
.
any
of
the
Churches
where
the
Lands
lye
,
and
he
need
not
do
it
at
all
:
But
because
he
said
,
He
had
caused
to
be
proclaimed
all
and
singular
in
that
Writ
contained
,
and
saith
not
what
,
the
Retorn
was
adjudged
Insufficient
,
1
Browl.
126.
Allen
and
Walter
.
Upon
a
Retorn
of
a
Writ
of
Enquiry
in
Dower
Retorn
of
a
Writ
of
Enquiry
in
Dower
.
Errors
were
assigned
:
1.
The
Original
Writ
appears
not
to
be
Retorned
according
to
the
Statute
;
for
the
year
doth
not
appear
when
it
was
Retorned
.
2.
The
Proclamation
made
by
the
Sheriff
,
appears
not
to
be
where
the
Land
lies
.
3.
The
Retorn
does
not
mention
that
the
Proclamation
was
after
the
Summons
,
as
it
ought
,
Hob.
Allen's
Case
.
4.
It
is
not
said
,
He
did
make
Proclamation
on
the
Land
;
but
the
words
secundum
forma●●
Statuti
extend
far
.
Quare
,
For
the
Certiorari
was
not
well
Retorned
in
B.
R.
Stiles
Rep.
p.
67.
T●yn
and
Thyn
.
Note
,
No
Error
can
be
Assigned
on
the
Sheriffs
act
in
giving
the
Seisin
,
and
retorning
thereof
,
except
it
is
where
Damages
are
to
be
Enquired
;
for
if
any
of
them
be
ill
,
then
the
recovery
of
the
Damages
being
entire
,
its
ill
for
all
,
Cro.
Jac.
621.
Sir
Ch.
Howard's
Case
.
If
Summons
be
made
in
some
part
of
the
Summons
made
in
some
parts
of
the
Land
within
the
Vill
,
is
good
.
Land
within
the
Vill
,
its
good
;
neither
is
it
necessary
to
make
the
Proclamation
where
the
Summons
is
,
Stiles
Rep.
91.
Thyn
.
Presidents
.
Summons
,
Retorn
of
the
Writ
of
Seisin
,
and
Execution
upon
it
in
Dower
,
2
Sand.
45
,
92.
Hesketh
and
Lee.
On
Habere
fac'
seisinam
,
in
a
Writ
of
Dower
of
the
Third
part
,
the
Sheriff
Retorned
,
That
he
offered
to
the
Demandants
the
Seisin
of
the
Third
part
of
the
Tenements
aforesaid
by
Metes
and
Bounds
in
certain
,
according
to
the
Tenor
of
the
Writ
,
and
they
refused
to
accept
them
of
him
.
Per
Cur.
The
Entry
of
the
Demandants
is
now
lawful
;
and
the
Court
refused
to
award
Habere
fac'
seisinam
de
novo
,
as
a
thing
never
known
,
Dyer
278.
A.
brought
Dower
against
the
Son
,
to
be
endowed
of
Lands
,
of
which
her
Husband
(
the
Father
of
the
Defendant
)
died
seised
.
A
Writ
issued
forth
to
Enquire
of
the
Damages
,
and
he
made
his
Warrant
to
J.
S.
to
take
the
Inquest
.
It
was
the
Opinion
of
the
Justices
,
That
he
cannot
in
this
case
make
a
Deputy
,
because
it
was
a
Judicial
act
,
and
he
must
do
it
in
person
,
Noy
21.
Randal's
Case
.
Sheriffs
demeanour
in
the
Writ
De
Ventre
Inspiciendo
.
Writ
was
directed
to
the
Sheriff
,
That
he
should
cause
D.
&c.
to
be
viewed
by
12
Knights
,
and
searched
by
12
Women
in
the
presence
of
the
12
Knights
;
&
ad
tractandum
per
ubera
&
ad
ventrem
inspiciend
'
,
whether
she
were
with
Child
or
not
,
and
to
Certifie
the
same
into
the
Common-Bench
;
and
if
she
were
with
Child
,
to
Certifie
how
long
time
in
their
Judgments
,
&
quando
sit
paritura
:
The
Sheriff
Retorned
,
That
she
was
Twenty
weeks
gone
with
Child
,
and
that
within
Twenty
weeks
fuit
paritura
.
Whereupon
another
Writ
issued
out
of
the
Common-Bench
,
commanding
the
Sheriff
safely
to
keep
her
in
such
an
House
,
and
that
the
Doors
should
be
well
guarded
;
and
that
every
day
he
would
cause
her
to
be
viewed
by
some
of
the
Women
named
in
the
Writ
(
wherein
they
were
named
;
)
and
that
when
she
should
be
Delivered
,
some
of
them
should
be
with
her
to
view
her
Birth
,
whether
it
be
Male
or
Female
.
Upon
this
the
Sheriff
Retorned
,
He
had
caused
her
to
be
kept
,
&c.
and
that
such
a
day
she
was
Delivered
of
a
Daughter
,
Cro.
El.
566.
Willoughby's
Case
.
But
in
Theaker's
Case
,
the
Woman
to
be
Inspected
was
a
Feme
Covert
,
(
to
a
second
Husband
)
and
she
was
with
Child
by
the
first
;
they
took
not
the
same
course
,
but
left
her
with
her
Husband
,
he
entring
into
Recognizance
,
that
she
should
not
remove
from
the
House
wherein
they
inhabited
,
and
that
one
or
two
of
the
Women
(
Retorned
by
the
Sheriff
)
should
see
her
every
day
,
and
that
two
or
three
of
them
should
be
present
at
her
Travail
,
Cro.
Jac.
685
,
686.
Theaker's
Case
.
The
Sheriffs
Office
about
Partition
,
and
how
he
is
to
demean
himself
therein
.
At
the
time
of
the
Partition
made
,
the
High-sheriff
He
must
be
upon
the
Land
in
person
.
must
be
upon
the
Land
in
person
:
And
if
Exception
be
taken
at
the
Bar
before
the
Writ
be
retorned
and
filed
,
a
New
Writ
shall
be
awarded
;
but
if
the
Sheriff
in
such
case
Retorneth
,
That
he
was
there
in
proper
person
,
No
Averment
against
the
Retorn
fil●d
.
and
this
Retorn
be
received
and
the
Writ
filed
,
the
party
cannot
Aver
against
the
Retorn
,
nor
shall
have
Error
,
Cro.
El.
9.
Clay's
Case
.
In
a
Writ
of
Partition
,
if
Judgment
be
given
quod
partitio
fiat
,
and
upon
this
a
Writ
is
directed
to
the
Sheriff
,
to
make
partition
;
before
that
this
is
Executed
and
Retorned
no
Writ
of
Error
lies
upon
the
first
Judgment
,
because
before
the
last
Whe●
Writ
of
Error
lies
upon
P●rtition
,
or
not
.
Judgment
(
which
ought
to
be
,
Qd'
partitio
praed'
foret
forma
&
stabilis
in
perpetuum
)
the
Plaintiff
may
be
Nonsuited
;
or
he
may
upon
the
Sheriffs
Retorn
suggest
to
the
Court
,
That
the
Partition
is
not
equal
,
and
also
have
a
New
Partition
,
1
Rolls
Abridgm
.
750.
The
Lord
Berkley
and
the
Countess
of
Warwick
.
The
Form
of
the
Retorn
of
a
Writ
of
Partition
,
vide
Dalt
.
c.
68.
Sheriffs
Office
about
removing
a
Force
.
The
party
grieved
may
have
a
Writ
supon
the
Statute
of
Northampton
,
2
Ed.
3.
cap.
3.
directed
to
the
Sheriff
,
to
remove
the
Force
;
and
upon
this
the
Sheriff
may
imprison
and
justifie
in
False
Imprisonment
,
as
was
Levett
and
Farrar's
Case
;
and
so
may
the
Under-sheriff
,
as
that
Case
was
.
In
False
Imprisonment
against
the
Sheriff
,
the
Defendant
Justifies
,
for
that
a
Writ
upon
the
Statute
of
Northampton
was
awarded
30
July
32
Eliz.
to
the
Sheriff
and
Justices
of
the
Peace
,
to
remove
a
Force
;
and
that
he
being
Under-sheriff
,
by
the
Commandment
of
the
Sheriff
went
to
the
place
and
found
the
Force
;
and
because
he
was
not
able
to
remove
it
,
he
made
Proclamation
,
That
every
one
should
depart
,
and
leave
their
Weapons
,
&c.
and
afterwards
he
enquired
of
the
Force
;
and
it
being
found
that
the
Plaintiff
was
one
of
them
,
he
arrested
him
,
and
imprisoned
him
,
Cro.
Eliz.
294.
Levett
and
Farrar
.
Per
Cur.
The
Plea
is
good
.
And
these
Points
Plea
.
were
Adjudged
:
1.
When
the
Writ
is
directed
to
the
Sheriff
by
the
name
of
his
Office
,
and
not
by
a
particular
Name
,
nor
doth
expresly
Command
him
to
do
it
in
person
,
the
Under-sheriff
may
do
it
;
Done
by
the
Under-sheriff
.
for
its
a
Writ
grounded
on
the
Statute
,
and
not
a
Commission
,
for
then
it
had
been
otherwise
.
2.
He
may
Arrest
and
Imprison
at
another
time
upon
the
Enquiry
,
tho'
the
Force
were
removed
before
his
coming
;
and
he
may
Enquire
who
did
it
.
3.
It
shall
be
intended
he
continued
Under-sheriff
,
when
in
the
same
Plea
it
is
alledged
he
was
Under-sheriff
,
and
the
contrary
is
not
shewed
,
2
Roll.
Rep.
178.
If
when
the
Sheriff
comes
to
remove
a
Force
,
if
then
one
hide
himself
in
the
Corner
of
the
House
,
to
the
intent
,
&c.
this
is
Force
.
The
Sheriffs
Office
in
a
Vi
Laica
removenda
.
In
False
Imprisonment
the
Defendant
Justifies
,
Justifies
in
False
Imprisonment
.
because
a
Writ
De
vi
Laica
removendâ
came
to
the
Sheriff
,
to
remove
the
Force
;
and
that
the
Sheriff
came
to
the
House
,
and
the
Defendant
in
Assistance
of
him
,
&c.
and
that
there
the
Plaintiff
in
domibus
praedict'
ad
pacem
dom'
Regis
disturband'
,
&c.
&
eos
residentes
invenerit
.
Plaintiff
demurs
,
1.
The
Writ
is
,
Si
aliquos
in
ea
parte
resistentes
invene●itis
,
and
it
is
not
here
pleaded
,
That
he
found
him
resisting
in
e●
parte
,
i.
e.
to
keep
possession
.
But
per
Cur.
the
words
in
e●
parte
ought
to
be
necessarily
intended
.
For
when
he
saith
,
He
came
to
the
House
to
remove
the
Force
,
and
the
Plaintiff
resisted
him
,
then
sequitur
that
he
resisted
him
in
removing
the
Force
.
2.
The
Writ
is
,
aliquos
,
and
the
Defendant
had
shewed
Resistance
by
one
only
.
But
per
Cur.
aliquos
includes
aliquem
.
3.
He
doth
not
aver
,
that
it
was
vis
Laica
&
armata
potestas
.
But
per
Cur.
it
appears
there
was
Force
,
and
the
very
Resistance
was
a
Force
,
2
Roll.
Rep.
177.
Parson
Clossey's
Case
.
Upon
a
Vi
Laica
removenda
,
if
the
Sheriff
Retorn
Non
inveni
vim
Laicam
nec
armatam
potestatem
,
the
Lessee
shall
have
Restitution
in
B.
R.
Restitu●ion
.
upon
Affidavit
that
he
was
kept
out
with
Force
.
Upon
this
Writ
the
Sheriff
ought
not
to
remove
the
Incumbent
,
who
is
in
Possession
of
the
Church
,
be
it
by
right
or
wrong
,
for
the
Sheriff
is
only
to
remove
the
force
,
and
is
to
suffer
the
Incumbent
to
enjoy
his
Possession
,
More
462.
Roberts
and
Agmondsham
.
How
Sheriff
is
to
Demean
himself
in
Proclamations
.
In
real
Action
.
Vid'
Dower
.
As
to
Acts
of
Parliament
in
former
times
.
Proclamations
ought
to
be
with
Writ
to
the
Sheriff
to
Proclaim
,
2
Rolls
Rep.
172.
Yet
,
if
a
Statute
be
not
proclaimed
,
the
Offences
against
it
are
punishable
,
Dr.
and
Stud.
146.
b.
How
the
Sheriff
shall
Demean
himself
in
a
Writ
of
Inquiry
of
Wast
.
And
of
the
Sheriffs
Retorn
thereupon
.
And
of
the
Writ
of
Estprement
.
In
an
Action
of
Wast
upon
Issue
joyned
,
a
Jury
is
Summoned
to
try
the
Cause
,
and
in
the
interim
to
view
the
place
wasted
,
and
the
Sheriff
is
to
retorn
the
view
.
As
to
the
President
,
vid.
2
Sanders
254.
Grene
and
Cole
.
The
Sheriff
must
go
in
person
to
the
place
The
manner
of
the
view
.
wasted
,
by
Stat.
W.
2.
c.
14.
accedat
ad
Locum
vastatum
,
together
with
the
Jurors
,
2
Inst.
390.
Six
Juors
at
the
least
ought
to
have
the
view
.
And
the
Jury
may
view
the
place
Wasted
when
the
Officer
is
not
present
;
and
the
Court
upon
the
Tryal
ought
to
examin
,
if
the
Jurors
had
the
view
or
not
.
But
tho'
the
Jury
ought
to
have
the
view
,
yet
it
is
not
necessary
for
the
Not
necessary
to
retorn
the
view
.
Officer
to
Retorn
it
,
2
Sanders
254
,
255.
Grene
and
Cole
.
In
Action
of
Wast
assigned
in
a
Wood
,
the
Jury
viewed
the
Wood
only
without
entring
into
it
:
And
it
was
held
the
same
was
sufficient
.
It
would
be
too
tedious
for
a
Jury
to
view
every
stub
of
a
Tree
that
had
been
Felled
.
Yet
,
if
Wast
be
in
several
corners
of
a
Wood
,
then
the
Jury
is
to
have
the
view
of
every
Corner
;
aliter
where
Wast
is
assigned
in
the
whole
Wood.
And
if
Wast
be
assigned
in
every
Room
of
an
House
,
the
view
of
the
House
generally
is
sufficient
.
And
by
Dyer
,
if
Wast
be
assigned
in
several
places
,
and
of
some
of
them
the
Jury
had
not
the
view
,
of
that
they
may
find
no
Wast
done
,
1
Leon.
276.
If
an
Issue
ariseth
in
a
Foreign
County
,
the
Jury
examined
of
the
view
.
Jury
shall
not
be
examined
of
the
view
;
and
if
the
Jurors
be
not
examined
of
the
view
when
they
should
be
examined
,
its
Error
.
Retorn
of
the
Writ
of
Enquiry
in
Wast
.
VIirtute
brevis
Dom.
Regis
mihi
direct'
Ego
A.
B.
Armig
'
Vic'
Comitat'
praed'
(
tali
die
&
anno
)
in
propria
persona
mea
accessi
ad
Locum
vastatum
in
dicto
brevi
nominat'
Et
apud
S.
(
the
Vill
wherein
the
place
lies
)
feci
Inquisitionem
,
&c.
prout
istud
breve
in
se
exigit
&
requirit
.
Resid'
Executionis
istius
brevis
patet
in
quadam
Inquisitione
huic
brevi
annex'
.
Inquisitio
Indentata
capt'
apud
G.
in
Com'
,
&c.
(
tali
die
&
anno
)
Coram
A.
B.
Vic'
Comit'
praed'
Virtute
cujusdam
brevis
Domini
Regis
ei
inde
direct'
&
huic
Inquisitioni
consut'
per
Sacramentum
A
B.
&c.
(
ad
numerum
12
)
qui
dicunt
super
Sacramentum
suum
qd'
J.
R.
in
brevi
praed'
nominat'
fecit
vastum
venditionem
&
destructionem
in
omnibus
in
eod'
brevi
specificat'
,
viz.
permittend'
duas
cameras
pretis
31.
&
unum
stabulum
pretii
20
s.
esse
discoopertum
pro
defectis
reparationum
earundem
domorum
per
qd'
grossum
marem
'
eorundem
Dom'
per
tempest
'
pluviales
super
illas
descendentes
putred
'
devenit
.
Et
dicunt
super
Sacramentum
suum
qd'
praed.
J.
R.
aliud
neque
plus
vastum
venditionem
seu
destructionem
fecit
in
domibus
praed'
In
cujus
rei
Testimonium
,
&c.
Of
the
Enquiry
of
Wast
.
This
Enquiry
of
Wast
differs
from
other
How
differ
from
other
Writs
of
Enquiry
.
Writs
of
Enquiry
,
which
are
but
meer
Inquests
of
Office
.
But
here
it
s
a
Verdict
and
in
nature
of
a
Verdict
,
and
a
Writ
of
Attaint
lies
:
Therefore
,
where
upon
a
Writ
of
Enquiry
of
Wast
,
13
Jurors
were
retorned
,
where
there
ought
to
be
but
12
,
its
Error
.
But
in
other
Writs
of
Enquiry
,
it
is
usual
to
have
more
than
12
,
at
the
Sheriffs
pleasure
,
there
must
not
be
under
12
tho'
it
be
but
an
Enquest
of
Office
,
for
it
is
taken
sans
mise
des
parties
,
id
est
,
without
Issue
joyned
.
In
a
Writ
of
Enquiry
of
Wast
upon
Demurrer
or
nihil
dicit
,
the
Sheriff
may
enquire
of
it
at
another
place
than
where
the
Wast
was
done
,
Cro.
Car.
414.
King
and
Frith
.
2
Inst.
390.
Cro.
El.
290.
Warriford
and
Haddock
.
Now
as
to
the
Juries
finding
Damages
the
Law
is
,
That
if
Wast
be
assigned
in
three
Houses
and
two
Gardens
,
&c.
and
upon
the
Writ
of
Enquiry
,
Wast
was
found
in
the
Houses
and
Gardens
,
and
entire
Damages
given
,
it
s
well
,
for
it
is
the
usual
course
to
find
entire
Damages
,
Damages
entire
.
and
not
several
for
every
of
them
,
Cro.
Car.
414.
King
and
Fitch
.
Lib.
Intr.
620.
8
Rep.
61.
But
where
the
Writ
of
Wast
and
Count
is
in
domibus
boscis
&
Gardinis
,
and
upon
the
Writ
of
Enquiry
the
Wast
is
found
in
domibus
&
Gardinis
,
and
nothing
in
boscis
,
there
the
Plaintiff
shall
be
in
Misericordia
;
because
he
counts
for
Wast
,
in
places
where
no
Wast
was
committed
in
one
of
them
.
But
where
Wast
was
assigned
in
cutting
down
twenty
Trees
,
and
the
Wast
is
found
in
cutting
down
two
Trees
,
aliter
.
If
the
Jury
find
Damages
only
to
8
s.
the
Plaintiff
ought
to
have
Judgment
,
for
it
ought
to
be
above
40
s.
Winch
Rep.
5.
Sir
G.
Topping
and
King
.
If
Wast
be
committed
in
two
Villages
,
and
Where
excuted
.
the
Sheriff
hath
executed
his
Office
ill
in
one
Village
,
and
well
in
another
,
all
shall
be
enquired
of
denovo
,
because
the
whole
Inquisition
was
but
one
Inquest
at
one
time
:
If
Wast
be
assigned
in
divers
Towns
,
the
Sheriff
and
Jury
must
view
all
the
places
wasted
in
every
Town
,
but
he
may
enquire
thereof
in
any
one
of
the
Towns
,
2
Inst.
390.
Note
,
Action
of
Wast
lies
not
in
antient
Action
of
Wast
lies
in
Ancient
Demsne
and
why
.
Demesne
,
because
upon
default
at
the
grand
Distress
,
there
cannot
be
a
Writ
to
the
Sheriff
,
to
enquire
of
the
Wast
as
the
Statute
appoints
.
So
2
Inst.
386.
That
the
Court
fails
of
the
Incidents
to
an
Action
of
Wa
st
,
to
award
a
Writ
to
the
Sheriff
to
enquire
of
the
Wast
,
2
Sanders
254
Grenes's
Case
.
4
Rep.
Fulwoods's
Case
.
What
Retorn
shall
be
good
,
or
not
.
A
Writ
to
the
Sheriff
to
enquire
of
Wa
st
,
This
Writ
is
a
non
omitt●as
.
who
Returns
mandavi
Ballivo
meo
Libertatis
,
&c.
qui
nullum
dedit
responsum
,
it
s
an
ill
Retorn
;
and
the
Sheriff
was
amerced
,
and
a
sicut
alias
awarded
;
because
in
the
executing
this
Writ
he
is
both
Officer
and
Judge
,
which
power
cannot
be
committed
to
a
Bayliff
of
a
Liberty
,
and
this
Writ
is
a
non
omittas
in
it self
,
and
he
hath
power
to
retorn
into
the
Franchise
.
But
if
after
Appearance
.
the
Party
appears
its
good
,
2
Brownl
.
Rep.
240.
Trin.
11.
H.
7.
f.
42.
F.
H.
tit
.
retorn
de
Vic.
53.
11
H.
4.
21.
The
place
wasted
,
and
treble
value
is
to
be
Wasts
to
be
recovered
,
and
how
.
recovered
;
now
if
Wast
be
made
sparsim
in
a
Close
or
Wood
,
the
treble
value
shall
be
levied
by
Fieri
fac
'
or
by
Elegit
,
and
not
by
Capias
,
because
Capias
lies
not
upon
the
Original
,
1
Brownl.
240.
The
Sheriff
makes
a
Precept
to
a
Bayliff
to
Summon
a
Jury
,
who
retorned
a
Pannel
which
was
parcel
of
the
Record
;
and
the
Sheriff
took
the
Inquest
of
some
not
retorned
.
It
was
the
better
Opinion
,
that
the
Retorn
was
good
;
tho'
some
said
the
Sheriff
may
vary
from
the
Retorn
of
the
Bayliff
,
as
he
is
one
that
makes
the
Array
and
is
Judg
also
,
8
Rep.
157.
Ed.
Althams's
Case
.
Estrepment
.
The
Writ
of
Estrepment
is
a
Prohibition
to
do
Wa
st
and
lies
in
two
Points
.
Where
lies
.
1.
When
a
Man
having
an
Action
depending
(
as
a
Formedon
,
Writ
of
Right
,
&c.
)
sues
to
inhibit
,
the
Tenant
for
making
Wa
st
during
the
the
Suit
,
and
this
is
either
Original
,
and
may
be
sued
out
of
Chancery
,
or
Judicial
,
granted
out
of
the
Court
where
the
Plea
dependeth
,
2
Inst.
328
,
329.
2.
When
the
Demand
is
to
recover
Seisin
of
the
Land
in
Question
,
and
before
Execution
sued
by
Habere
fac'
Possessionem
,
for
fear
Wast
be
made
before
her
Possession
,
he
Sues
this
Writ
.
And
a
Man
can
recover
Damages
,
for
no
more
than
is
contained
in
his
Count.
There
is
likewise
,
when
fear
is
that
Wast
will
be
done
to
prevent
it
,
a
Prohibition
directed
to
the
Sheriff
,
not
to
permit
Wast
to
be
done
.
And
the
Form
,
vid.
2
Inst.
299.
The
Sheriff
may
resist
the
committing
of
Wast
,
and
may
Imprison
if
he
cannot
otherwise
hinder
it
,
3
Bulst.
199.
And
he
may
take
the
Posse
Comitatus
to
hinder
it
.
Posse
comitatus
.
In
Wast
Estrepment
was
awarded
,
and
upon
Affidavit
that
the
Writ
of
Estrepment
was
delivered
to
the
Sheriff
,
and
that
he
gave
notice
to
the
Party
,
and
yet
he
continues
to
make
Wast
;
Attachment
was
awarded
,
1
Brownl.
168.
Attachment
.
If
the
Tenants
of
the
Land
notwithstanding
notice
of
a
Writ
of
Estrepment
directed
to
the
Sheriff
commit
Wast
;
this
is
no
Contempt
,
and
Contempt
.
the
Court
will
not
commit
them
,
because
it
was
not
immediately
to
them
,
as
it
might
have
been
,
Hob.
85.
Earl
of
Cumberland's
Case
.
Note
,
If
the
Sheriff
be
Plaintiff
in
the
Action
of
Wast
,
the
Writ
of
Estrepment
shall
Issue
to
the
Coroners
.
But
this
Writ
of
Estrepment
is
rarely
used
,
and
in
such
cases
,
Injunctions
out
of
Chancery
are
frequently
granted
.
It
seems
Estrepment
lies
not
in
a
Writ
of
Error
,
of
a
Judgment
in
Partition
,
Siderfin
367.
The
Sheriffs
Office
in
the
Writ
de
Excommunicato
Capiendo
.
The
Sheriff
needs
not
bring
the
Body
into
the
Kings
Bench
at
the
day
of
the
Retorn
,
but
shall
only
Retorn
the
Writ
thither
with
Declaration
briefly
,
in
what
manner
he
hath
served
and
executed
the
same
,
5
El.
c.
23.
If
the
Sheriff
shall
Retorn
non
est
Inventus
,
then
a
Capias
shall
be
awarded
with
Proclmation
therein
,
commanding
the
Sheriff
in
the
County
Court
,
or
at
the
Assizes
or
Quarter
Sessions
,
to
make
open
Proclamation
ten
days
before
the
Retorn
at
least
,
that
the
Party
yeild
his
Body
to
Prison
in
six
days
.
And
after
the
six
days
the
Sheriff
,
&c.
shall
make
Retorn
what
he
has
done
thereupon
,
&c.
(
the
Offender
to
forfeit
1
ol.
for
such
default
)
and
so
a
Capias
shall
go
infinitè
with
like
Proclamation
:
And
a
forfeiture
of
20
l.
for
every
other
default
to
be
Estreated
presently
,
Sat.
5
El.
c.
23.
If
the
Offender
yield
his
Body
,
the
Sheriff
shall
presently
commit
him
to
Prison
without
Bail
.
If
the
Sheriff
make
an
untrue
Retorn
,
that
the
Party
has
not
yielded
his
Body
on
any
Proclamation
made
,
where
indeed
he
has
yielded
,
&c.
he
shall
forfeit
to
the
party
grieved
40
l.
The
Writ
of
Excommunicat'
Capiendo
must
be
taken
out
of
Chancery
,
and
recorded
in
the
Kings
Bench
before
it
be
delivered
to
the
Sheriff
,
1
Keb.
613.
5
Eliz.
c.
23.
Lewes
versus
Stephen
son
.
Neither
a
V●
Laica
removenda
nor
Excommunicat'
Capiendo
were
retornable
before
the
Statatute
of
5
El.
c.
23.
3
Bulst
.
92.
He
that
is
certified
into
the
Chancery
by
the
Bishop
to
be
Excommunicated
,
and
after
is
taken
by
Force
of
the
Kings
Writ
of
Excommunicat'
Capiendo
is
not
Bailable
by
the
Sheriff
.
or
Gaoler
by
the
Kings
Writ
.
But
if
the
Party
offered
sufficient
caution
,
de
parendo
mandatis
Ecclesiae'
in
forma
Juris
,
then
should
the
Party
have
the
Kings
Writ
to
the
Bishop
to
accept
his
caution
,
and
to
cause
him
to
be
delivered
.
And
if
the
Bishop
will
not
send
to
the
Sheriff
to
deliver
him
,
then
he
shall
have
a
Writ
out
of
Chancery
to
the
Sheriff
to
deliver
him
.
Or
if
he
be
Excommunicated
for
a
Temperal
cause
,
or
for
a
matter
whereof
the
Ecclesiastical
Court
hath
no
conusance
,
he
shall
be
delivered
by
the
Kings
Writ
without
any
satisfaction
,
2
Inst.
188
;
189.
Retorn
of
Sheriff
as
to
Clarks
.
VIrtute
istius
brevis
mihi
direct'
Justic'
infra
,
script
.
certifico
qd'
infra
nominat
'
T.
H.
Clericus
est
beneficiat'
in
Episcopatu
London
,
nullum
habens
Laicum
feodum
in
balliva
mea
ubi
potest
su●mon
.
nec
est
inventus
inead
.
A.
B.
Armig
'
Vic'
.
The
Sheriff
Retorneth
,
That
the
Parson
ante
adventum
brevis
,
or
post
receptionem
brevis
,
or
before
the
Retorn
of
his
Writ
had
resigned
his
Benefice
.
Et
qd'
non
habet
nec
habuit
bona
neque
catalla
infra
,
&c.
It
s
a
good
Retorn
.
In
Trespass
or
Debt
against
a
Clark
,
Nihil
habet
is
a
good
Retorn
.
In
Action
brought
against
one
wherein
a
Capias
lies
(
Ex
gr
.
in
account
)
the
Sheriff
Retorns
qd.
est
Clericus
Beneficiat
.
nullum
habens
Laicum
feodum
in
which
he
may
be
summoned
;
In
this
Case
the
Plaintiff
cannot
have
a
Capias
,
to
take
the
Body
of
the
person
,
but
he
shall
have
a
Writ
to
the
Bishop
,
to
cause
the
person
to
come
and
appear
.
But
if
he
had
retorned
qd'
Clericus
est
nullum
habens
Laicum
feodum
,
then
is
a
Capias
to
be
granted
to
the
Sheriff
,
because
it
appeared
not
by
the
Retorn
that
he
had
any
Benefice
,
so
as
he
might
be
warned
by
the
Bishop
his
Diocesan
,
and
no
Man
can
be
exempt
from
Justice
.
But
in
the
Case
of
the
King
where
he
is
party
,
the
Sheriff
cannot
Retorn
Clericus
Beneficiat'
nullum
habens
Laicum
feodum
,
as
on
Distress
for
Issues
lost
on
a
Juror
,
2
Inst.
4
,
627.
If
a
Scire
fac
'
be
brought
upon
a
Recognizance
,
or
upon
a
Judgment
in
a
Writ
of
Annuity
,
and
the
Sheriff
Retorn
,
that
the
Defendant
is
Clericus
&
Beneficiat'
nullum
habens
Laicum
feodum
,
&c.
the
Plaintiff
shall
have
a
Writ
to
the
Bishop
to
warn
the
Defendant
,
and
upon
warning
,
or
two
Nihils
retorned
,
and
default
made
,
or
if
he
appeareth
and
sheweth
no
matter
wherefore
Execution
should
not
be
granted
,
then
a
Writ
shall
be
awarded
to
the
Bishop
to
levy
Execution
de
bonis
Ecclesiasticis
.
Retorn
of
a
Writ
of
Entry
.
The
Count
was
of
a
third
part
of
a
Mesuage
and
one
Stable
.
Petit
cape
was
awarded
to
the
Sheriff
,
and
he
makes
his
Warrant
to
a
Bayliff
of
a
Liberty
;
he
Retorns
quod
cepit
in
manus
Domini
Regis
the
said
Mesuage
,
and
saith
nothing
of
the
Stable
:
And
for
this
cause
Judgment
was
reversed
,
Jones
Rep.
p.
357.
Taite
and
Heynes
.
In
a
Writ
of
Entry
sur
Dissesin
,
it
was
adjudged
Error
,
because
the
Sheriff
retorned
not
the
Names
of
the
Summoners
or
Veyors
,
Cro.
Eliz.
557.
Merris's
Case
.
Retorn
of
a
Writ
of
Assize
.
The
Defendant
pleaded
to
the
Writ
of
Assize
,
That
the
Writ
was
retorned
coram
nob'
apud
Westm
'
not
saying
ubicunque
;
sed
non
allocat
.
The
Court
being
here
it
s
well
enough
,
and
the
Reason
is
,
because
it
was
for
the
Plaintiffs
convenience
that
it
was
ubicunque
?
2.
It
was
Summon'
XII
without
an
M.
over
Which
per
Cur'
is
well
enough
in
Numeral
Letters
.
3.
It
was
qd'
sint
ibi
Aud.
which
should
be
ad
Audiendum
,
as
Reg.
198.
b.
But
per
Cur.
This
may
be
intended
Auditur'
,
and
so
is
well
enough
without
ad.
4
It
was
Si
fec
.
whereas
it
should
be
Si
fecerit
.
sed
no
allocat
.
and
a
Respondeas
ouster
awarded
,
3
Keb.
326.
Creek
and
Norfolk
.
Quare
Impedit
.
In
a
Quare
Impedit
,
The
Defendant
must
be
Summoned
by
the
Sheriff
.
And
this
Summons
may
be
made
in
Church
,
or
to
the
Parson
;
the
Sheriff
Retorns
Nihil
upon
the
Summons
,
and
upon
the
Attachment
,
and
upon
the
Distress
,
the
Plaintiff
shall
recover
.
If
the
Defendant
comes
not
at
the
Distress
retorned
against
him
,
the
Plaintiff
shall
have
a
Writ
to
the
Bishop
,
without
making
any
Title
,
Dyer
241.
A
Writ
of
Enquiry
of
value
in
a
Quare
Impedit
was
executed
the
first
day
of
the
Retorn
,
but
the
Jury
did
not
give
their
Verdict
till
two
days
after
.
Retorn
of
a
quid
Juris
Clamat
.
Vid.
Dalton
c.
71.
The
Sheriffs
behavior
in
the
Writ
and
Inquisition
,
and
Retorn
of
Malefactoribus
in
Parcis
.
Vid.
Cro.
Car.
439
The
King
against
the
Inhabitants
of
Epworth
,
and
17
other
Villages
,
and
Statute
W.
2.
c.
46.
Co.
Mag.
Chart.
CHAP.
XXVIII
.
Of
Retorns
of
Clericus
Beneficiat
'
.
Of
other
Retorns
as
to
Clarks
.
The
Sheriffs
Office
in
a
Quare
Impedit
,
Sessions
of
the
Peace
.
The
Sheriffs
Office
as
to
Election
,
and
retorning
of
Knights
and
Bugesses
to
the
Parliament
.
The
Form
of
Indenture
for
the
Knights
of
the
Parliament
and
Burgesses
.
The
Sheriffs
Retorn
of
the
Writ
for
Electing
Parliament
Men.
Retorns
of
Clericus
Beneficiat'
,
&c.
AT
the
next
County
Court
,
after
delivery
of
the
Kings
Writ
to
the
Sheriff
,
for
the
Electing
Parliament
Men
,
Proclamation
shall
be
made
by
the
Sheriff
in
full
County
,
of
the
day
and
place
of
Parliament
,
and
all
they
who
are
present
shall
attend
,
and
in
full
County
proceed
to
the
Election
of
their
Knights
for
the
same
County
;
and
after
they
are
chosen
,
the
Names
of
the
persons
chosen
shall
be
written
in
an
Indenture
under
the
Seals
of
the
Electors
,
and
tacked
to
the
said
Writ
of
Parliament
,
Stat.
7.
H.
4
15.
Upon
any
Retorn
contrary
to
this
Statute
,
of
8
H.
6.
c.
7.
the
Sheriff
shall
forfeit
100
l.
to
the
King
,
and
have
one
years
Imprisonment
;
and
shall
forfeit
another
100
l.
to
the
person
chosen
Knight
of
the
Shire
,
and
not
duly
Retorned
.
The
chosers
must
have
40
s.
per
Annum
Freehold
within
the
said
County
.
The
choice
must
be
between
8
and
a
11
of
Clock
in
the
Forenoon
.
Every
Sheriff
,
after
receipt
of
the
Kings
Writ
for
Electing
Knights
of
Parliament
,
ought
forthwith
to
make
out
his
Warrants
under
the
Seal
of
his
Office
,
to
every
Mayor
and
Baliff
of
Cities
and
Burroughs
within
the
County
;
reciting
in
his
said
Warrants
the
Writ
of
Parliament
,
commanding
them
thereby
to
chuse
Citizens
and
Burgesses
to
come
to
the
Parliament
(
scil
)
if
it
be
a
City
,
to
chuse
Citizens
for
the
same
City
by
Citizens
;
and
if
it
be
a
Burrough
to
chuse
Burgesses
by
Burgesses
(
or
Freemen
of
the
same
Burrough
.
)
And
those
Mayors
and
Bayliffs
must
make
a
lawful
Retorn
of
that
Precept
to
the
Sheriff
by
Indentures
made
between
them
and
their
Sheriff
of
their
Election
,
and
of
their
Names
which
are
elected
,
23
H.
6.
15.
And
the
Sheriff
must
set
his
Hand
and
Seal
of
Office
to
one
part
of
the
Indentures
,
and
then
deliver
it
to
them
to
be
kept
,
and
to
the
other
part
the
Mayor
,
or
Citizens
,
or
Burgesses
must
set
their
Hands
and
Seals
,
and
deliver
it
as
their
Deeds
to
the
Sheriff
,
to
be
certified
and
retorned
by
him
with
the
Writ
of
Summons
to
the
Clerk
of
the
Crown
;
and
all
this
under
pain
of
100
l.
to
the
King
,
and
Imprisonment
for
one
year
,
and
the
Party
grieved
(
or
other
person
in
his
default
)
shall
recover
another
100
l.
But
they
must
commence
their
Action
within
3
Months
after
the
commencement
of
the
Parliament
.
and
Mayor
and
Bayliffs
shall
pay
40
l.
Dyer
113.
Pl.
118.
Note
,
Action
on
the
Case
lies
against
a
Sheriff
,
for
Retorning
other
Knights
for
the
County
than
were
elected
,
and
it
is
against
the
Statute
of
7
H.
4.
for
false
Retorn
,
and
23
H.
6.
c.
gives
Debt
in
the
Case
,
and
it
s
not
in
the
Negative
,
and
so
does
not
exclude
from
other
Remedy
,
2
Siderfin
168.
Nevile
and
Strowd
.
Now
the
Names
of
the
said
Knights
shall
be
Retorned
into
the
Chancery
by
Indenture
Sealed
,
between
the
Sheriff
and
the
Chusers
of
the
Knights
in
manner
following
.
The
Form
of
the
Indenture
for
the
Knights
of
Parliament
.
Haec'
Indentura
facta
in
pleno
Comitat'
Warr'
tent'
apud
Burgum
de
Warr'
de
&c.
Anno
Wil●ielmi
Tertij
,
&c.
inter
A.
B.
Mil.
Vic.
Comitat.
praed.
ex
una
parte
&
J.
C.
Mil.
A.
C.
Armig.
F.
P.
F.
K.
&c.
&
multas
alias
personas
Comitat.
praed.
&
electores
duorum
Militum
ad
Parliamentum
in
Brevi
huic
Indenturae
consut
.
specificat
.
ex
altera
parts
qui
ut
major
pars
totius
Communitatis
praed.
tunc
ibid.
existens
Jurat
.
&
examinat
.
secundum
vim
formam
&
effectum
diversorum
Statutorum
inde
edit'
&
provisor
.
Eligerunt
.
E.
P.
Mil.
&
J.
C.
Mil.
infra
Comitat.
praed.
commorantes
Gladiis
cinct'
milites
habiles
&
magis
idoneos
&
discret
.
dantes
&
concedentes
praedict.
duobus
Milit.
plenam
&
sufficien
.
postestatem
pro
se
&
tot
.
Communitat
.
Comitatis
praedict.
ad
faciend
&
consentiend
.
jis
que
ad
Parliaementum
in
dicto
Brevi
content
de
Communi
Consilio
Regni
dicti
Domini
Regis
nunc
Angliae
contingerit
ordinari
,
super
ne●otiis
in
dicto
Brevi
spec.
In
cujus
rei
Testimonium
uni
parti
hujus
Indenture
penes
dictum
Dominum
Regem
remanen
.
partes
praed.
sigilla
sua
apposuerunt
,
alter
vero
parti
ejusdem
Indenturae
praed.
Vic.
sigillum
suum
apposuit
.
Dat'
die
Anno
&
Loco
supradict.
&c.
The
Form
of
Indenture
for
the
Citizens
and
Burgesses
.
THis
Indenture
made
,
&c.
(
reciting
the
day
and
year
,
and
the
Kings
Stile
at
Lage
,
prout
supra
.
)
Witnesseth
,
That
by
Vertue
of
a
Warrant
to
me
directed
from
Sir
O.
R.
Knight
,
Sheriff
of
the
County
of
Warwick
,
for
the
Electing
and
Chusing
of
two
Burgesses
,
Men
of
good
Understanding
,
Wit
,
Knowledge
and
Discretion
,
for
Causes
concerning
the
publick
Wealth
of
the
Realm
,
to
be
at
his
Majesties
High
Court
of
Parliament
,
to
be
holden
at
Westminster
,
the
day
of
next
coming
.
I
E.
L.
Mayor
of
the
Borough
or
Town
of
Warwick
,
with
the
whole
assent
and
consent
of
the
rest
of
the
Burgesses
there
,
have
made
choise
and
election
of
and
of
to
be
Burgesses
of
our
said
Borough
of
Warwick
,
to
attend
at
the
Parliament
,
according
to
the
Tenor
of
the
said
Warrant
to
me
directed
in
that
behalf
.
In
Witness
whereof
,
I
have
to
these
Presents
set
our
Common
Seal
of
our
said
Borough
,
the
day
and
year
first
above
written
.
The
Sheriffs
Retorn
of
the
Writ
,
for
Electing
a
Parliament
Man
Knight
of
the
Shire
.
VIrtute
istius
Brevis
mihi
direct
Eligi
feci
duos
milites
Gladiis
cinctos
magis
idoneos
&
discret
.
de
Commitat
.
meo
praed.
(
videl.
)
W.
F.
&
O.
S.
qui
quidem
milites
plen
.
&
sufficien
.
potestat
.
pro
se
&
Comunitat
.
Com.
praed.
habeant
ad
faciend.
&
consentiend
,
iis
quae
ad
diem
&
locum
infra
content
.
de
Communi
Consilio
Regni
Regis
Angliae
ordinari
contingerit
.
Et
praed.
W.
F.
&
J.
S.
Manucapt
.
sunt
per
J.
P.
W.
B.
R.
D.
&
R.
N.
ad
essend
.
ad
Parliamentum
Domini
Regis
apud
Westm.
ad
diem
infracontent
.
ad
faciend.
prout
istud
Breve
in
se
exigit
&
requirit
Feci
etiam
praeceptum
(
to
the
Mayor
or
Bayliff
)
de
G.
qd.
de
Burgo
de
G.
Elegi
fecerint
.
duos
Burgenses
de
discret
.
&
magis
sufficien
.
qd.
sint
ad
Parliamentum
dicti
Domini
Regis
ad
diem
infra
content
.
ad
faciend.
&
consentiend
.
ut
praed.
est
qui
quidem
(
Mayor
,
&c.
)
sic
mihi
respond
.
qd.
Eligi
fecer
.
de
praed.
W.
Burgo
de
G.
duos
Burgenses
discret'
&
magis
sufficien
.
ad
essend
.
ad
Parliamentum
praed.
(
viz.
)
S.
W.
C.
R.
W.
R.
O.
Armig.
Vic.
The
Sheriffs
Office
about
the
Sessions
of
the
Peace
.
As
to
the
Precept
of
the
Sheriff
for
Summoning
the
Sessions
of
the
Peace
,
vid.
Lamb.
367.
Impress.
1599.
it
ought
to
bear
date
under
the
names
of
two
Justices
of
Peace
at
least
.
And
not
of
the
Custos
Rotulorum
alone
.
It
must
be
to
Summon
24
Jurors
,
and
to
command
all
Constables
,
Bayliffs
or
Coroners
,
to
give
their
attendance
upon
the
Justices
.
And
the
Form
of
the
Retorn
of
the
Summons
,
vide
Dalt.
198.
In
some
Cases
the
Sheriff
is
to
joyn
with
the
Justices
as
in
Case
of
Riots
,
&c.
13
H.
4.
c.
7.
He
is
to
attend
and
assist
the
Justices
of
the
Peace
,
to
Arrest
such
as
shall
make
any
forceable
Entries
or
Detainer
,
15
R.
2.
c.
1.
He
is
to
Summon
24
to
be
of
the
Grand
Inquest
.
As
to
other
sorts
of
Precepts
,
which
the
Sheriff
is
to
execute
,
in
respect
of
Commissioners
of
Sewers
,
Commissioners
of
Bankrupts
,
and
several
other
Acts
of
Parliament
,
vid.
Dalton
.
And
the
Acts
themselves
,
all
the
Duties
of
his
Office
being
so
various
,
and
especially
in
many
late
Acts
,
its
best
to
refer
to
the
Acts
themselves
,
which
no
Gentleman
ought
to
be
without
.
CHAP.
XXIX
.
Customs
of
London
.
Of
their
Officer
,
Prison
,
Court
of
the
Sheriffs
Court
.
How
to
lay
the
Custom
of
the
Sheriffs
Court
.
The
difference
between
the
Mayors
Court
and
the
Sheriffs
Court
.
Sheriffs
Court
when
kept
.
The
manner
of
entring
Actions
in
the
Country
.
Customs
of
London
,
as
to
Officers
,
Courts
,
Process
and
Prisons
,
&c.
Vide
9
Rep.
62
,
63
,
67.
tit
.
Arrest
,
&
vid.
Calthrop
.
BOth
the
Sheriffs
of
London
are
in
Law
but
one
Sheriff
,
and
the
one
is
not
of
London
and
the
other
of
Middlesex
,
as
is
vulgarly
supposed
,
Hob.
p.
70
,
Lamb
and
Wiseman
.
And
the
Sheriff
of
London
is
known
in
Law
to
be
two
persons
;
therefore
if
one
Sheriff
of
London
make
his
Retorn
without
his
Fellow
this
cannot
be
holpen
by
Jeofail
,
it
being
as
no
Retorn
at
all
,
or
a
Retorn
without
the
Sheriffs
Name
subscribed
:
And
London
had
no
Sheriffs
in
the
13th
of
Ed.
1.
1
Leon.
284.
In
London
the
Mayor
and
Comminalty
have
the
Office
of
Sheriff
of
London
and
Middlesex
,
and
Two
Sheriffs
are
yearly
chosen
,
3
Rep.
Westby's
Case
.
Upon
a
Capias
ad
satisfaciendum
to
the
Sheriff
of
Middlesex
,
to
take
J.
S.
if
the
Sheriff
take
him
and
put
him
in
Newgate
,
which
is
the
Common
Prison
for
London
and
Middlesex
,
and
after
another
Writ
of
Execution
comes
to
the
Sheriff
of
London
;
altho'
the
Sheriffs
of
London
are
also
Sheriffs
of
Middlesex
,
and
Newgate
(
where
the
Prison
is
)
is
the
Prison
for
both
Newgate
a
Prison
for
both
London
and
Middlesex
.
Counties
;
yet
the
Prisoner
shall
not
be
said
to
be
in
Execution
upon
this
New
Writ
in
London
,
nor
may
the
Sheriff
of
London
serve
it
upon
him
,
because
he
is
in
another
County
.
For
when
the
Cemmitment
is
to
Newgate
by
Commitment
by
Sheriff
of
Middlesex
,
is
not
a
Commitmitment
in
London
,
tho'
the
She●iffs
of
London
and
Middlesex
are
one
.
force
of
a
Writ
to
the
Sheriff
of
Middlesex
,
he
may
not
be
said
in
any
respect
to
be
in
the
County
of
London
;
for
the
Counties
continue
several
,
and
the
Prison
several
,
in
respect
of
the
several
Commitments
:
For
there
are
two
several
sides
,
and
a
partition
between
them
,
1
Rol.
Abr.
894.
Coas's
Case
,
Trin.
16
Jac.
B.
R.
By
the
Custom
of
London
,
the
Writ
of
Execution
is
directed
to
the
Sheriffs
of
London
,
and
not
to
the
Coroner
,
(
who
is
the
Mayor
,
2
Rol.
Abr.
806.
The
Retorn
of
the
Outlawry
out
of
London
in
C.
B.
is
generally
made
without
saying
,
Per
judicium
Coronatorum
.
Sheriffs
Court
.
The
Custom
is
,
When
a
man
is
impleaded
Court
of
Conscience
before
the
Sheriffs
,
the
Mayor
upon
suggestion
of
the
Defendant
may
send
for
the
parties
,
and
for
the
Record
,
and
Examine
the
parties
upon
their
Pleas
;
and
if
it
be
found
upon
his
Examination
that
the
party
Plaintiff
is
satisfied
,
that
he
may
award
that
the
Plaintiff
shall
be
barred
.
And
this
is
called
,
The
Court
of
Conscience
,
4
Inst.
c.
50.
8
Rep.
City
of
London's
Case
.
The
Plaintiff
in
Assault
and
Battery
in
his
Replication
saith
,
The
City
of
London
is
an
Ancient
City
,
and
have
Pleas
,
and
that
there
was
a
Plaint
in
such
a
Court
before
F.
M.
by
virtue
of
which
Process
the
Plaintiff
was
taken
.
He
should
have
alledged
a
Custom
to
hold
a
How
to
Lay
the
Custom
of
the
Sheriffs
Court
.
Court
before
the
Sheriffs
,
and
that
F.
M.
was
then
Sheriff
:
It
is
said
,
Coram
F.
M.
uno
Vicecom
'
,
its
well
enough
,
there
being
two
Courts
,
tho
but
one
Sheriff
,
1
Keb.
564.
Osborn
and
Parker
.
As
to
the
difference
between
the
Sheriffs
Court
,
and
Mayors
Court.
A
Clerk
of
the
Mayor's
Court
said
,
That
the
Figures
Difference
of
the
Entries
in
the
Mayors
Court
,
and
the
Sheriffs
Court
.
264
(
in
their
Entries
)
signifie
the
26th
day
of
the
4th
Month
,
26
the
Day
and
4
the
Month
,
accounting
November
(
in
which
the
Mayor
is
Chosen
)
the
first
,
and
so
the
fourth
Month
is
February
.
But
in
the
Sheriff's
Court
they
count
their
Months
in
October
.
And
accordingly
it
was
Ordered
,
That
Ashfield
the
20th
day
of
February
commenced
a
Plaint
,
&c.
2
Rol.
Rep.
380.
Ashfield's
Case
.
If
an
Erroneous
Judgment
be
given
in
any
Writ
of
Error
to
be
brought
in
the
Hustings
.
of
the
Sheriffs
Courts
of
the
City
of
London
,
the
Writ
of
Error
to
Reverse
this
Judgment
must
be
brought
in
the
Court
of
the
Hustings
before
the
Lord
Mayor
;
for
that
is
the
Superiour
Court
,
Pract.
Reg.
124.
4
Inst.
247.
Direction
of
Writs
.
Quodlibet
breve
quod
tangit
liberum
tenementum
dirigitur
Majori
&
Vicecomitibus
,
&
alia
brevia
tantum
Vicecomitibus
.
The
Two
Sheriffs
of
London
do
each
of
them
Sheriffs
Courts
,
when
kept
.
keep
a
Court
of
Record
,
where
they
hold
Plea
of
all
Personal
Actions
,
and
the
two
Prisons
(
called
the
Compters
)
belong
to
them
.
And
they
have
two
Court-Days
in
every
Week
apiece
:
For
the
Woodstreet-Compter
,
on
Wednesdays
and
Fridays
;
for
the
Poultry-Compter
,
on
Thursdays
and
Saturdays
.
In
a
Plaint
of
Debt
levied
before
any
of
the
Sheriffs
,
the
Custom
is
,
That
the
said
Sheriffs
Ore
tenus
send
to
the
Serjeants
of
the
Compter
,
either
to
Summon
or
Attach
the
Defendant
without
Warrant
;
and
upon
Nihil
Retorned
within
the
City
,
that
then
the
Serjeants
,
and
every
of
them
,
by
the
Commandment
of
the
Sheriff
have
used
to
Attach
and
Arrest
the
Defendant
,
to
have
his
Body
at
the
next
Court
before
the
Sheriff
at
the
Guild-Hall
,
&c.
In
this
manner
they
certifie
their
Records
:
But
the
usual
practice
is
,
to
Enter
an
Action
in
the
Office
for
that
purpose
,
at
one
of
the
Compters
;
which
Action
must
be
Entred
with
Care
:
For
it
is
the
Original
in
that
Court
by
which
you
must
Declare
,
and
from
whence
there
must
be
no
Variance
.
And
when
an
Action
is
Entred
,
then
any
one
Of
Entring
Actions
in
Crmpters
.
of
the
Serjeants
may
Arrest
the
Defendant
,
and
bring
him
into
Custody
until
he
find
Bail
to
Answer
the
Condemnation
,
which
Bail
is
to
be
Bail
.
taken
by
one
of
the
Clerk-sitters
.
The
Defendant
may
be
Arrested
by
the
Custom
Arresting
by
Serjeants
.
of
London
,
after
Entry
of
the
Plaint
in
the
Porters-Book
,
before
the
Entry
of
it
in
Court
before
the
Sheriff
:
And
after
Plaint
Entred
,
the
Serjeant
may
Arrest
without
Precept
.
The
Serjeant
need
not
shew
his
Mace
,
because
Serjeant
shewing
his
Mace
.
he
is
sworn
and
known
,
altho'
not
to
the
party
;
and
a
known
Bayliff
need
not
shew
his
Warrant
,
altho'
demanded
.
But
in
6
Rep.
52.
Countess
of
Rutland's
Case
,
a
General
Arrest
by
a
Serjeant
by
shewing
the
Mace
,
and
touching
his
Body
with
it
,
and
saying
☜
Sir
,
I
Arrest
you
,
is
insufficient
;
for
he
ought
to
shew
at
whose
Suit
,
out
of
what
Court
,
for
what
,
and
of
what
Retorn
,
&c.
That
the
party
may
know
,
&c.
In
Escape
the
Defendant
pleads
the
Custom
of
Escape
.
London
,
That
the
Mayor
and
Sheriffs
of
London
have
used
to
enlarge
Prisoners
that
were
Arrested
,
in
coming
and
retorning
from
their
Courts
,
having
Causes
there
depending
;
and
sets
forth
a
Plaint
in
London
against
the
Defendant
,
and
that
hether
the
Court
can
discharge
one
arrested
,
who
is
coming
and
teturing
to
the
Court.
he
was
arrested
,
and
appeared
,
and
pleaded
to
Issue
;
and
as
he
was
coming
to
Court
,
to
defend
that
Action
,
he
was
arrested
,
as
is
supposed
in
the
Declaration
.
And
per
Cur.
the
Court
cannot
discharge
one
arrested
,
except
he
be
arrested
in
the
Face
of
the
Court
,
1
Brownl
.
15.
Wilson
and
The
Sheriffs
ef
London
.
CHAP.
XXX
.
The
Sheriffs
Duty
as
to
the
Assizes
.
And
as
to
Sessions
of
the
Peace
.
The
Form
of
the
Warrant
made
by
the
Sheriff
,
or
Undersheriff
for
Summoning
the
Assizes
,
vide
Dalton
196.
A
Schedule
may
be
Filed
to
the
backside
of
the
Warrant
;
wherein
he
shall
set
down
the
names
of
the
Grand
Jury
and
Petty
Jury
of
Life
and
Death
;
to
whom
he
must
give
warning
by
his
Bayliff
.
The
High
Sheriffs
themselves
are
to
attend
the
Judges
at
the
Assizes
:
And
also
Stewards
Bayliffs
,
and
other
Ministers
of
any
Liberties
or
Franchises
,
&c.
shall
be
attendant
to
the
Justices
of
Assize
and
Gaol
Delivery
of
the
same
Counties
,
wherein
such
Liberties
and
Franchises
shall
be
.
And
shall
be
fined
by
the
Judges
in
case
of
failure
.
Every
Sheriff
(
and
all
other
persons
)
which
have
the
Custody
of
the
Gaols
(
or
Prisoners
for
Felony
)
ought
to
certifie
the
names
of
every
of
their
Prisoners
,
which
are
in
their
Custody
for
Felony
,
to
the
Justices
of
the
next
Gaol
Delivery
,
upon
pain
of
5
l.
for
every
default
.
CHAP.
XXXI
.
Of
Sheriffs
and
Officers
Fees
.
Remedy
and
Security
for
Fees
.
Extortion
Punishable
.
What
Assumpsit
good
,
as
to
paying
Fees
,
or
not
.
Of
Sheriffs
and
Officers
Fee
.
AT
Common
Law
a
Sheriff
might
not
take
any
Fees
,
but
it
was
Extortion
:
But
now
he
may
take
the
Fees
allowed
by
the
Statute
,
Cro.
El.
p.
654.
Stanton
and
Sullyard
.
The
Statute
is
29
El.
c.
4.
No
Sheriff
,
Under-sheriff
,
Sta.
29
El.
c.
4.
of
12
d.
in
the
Pound
.
Bayliff
of
a
Liberty
,
or
any
of
their
Deputies
▪
shall
either
directly
or
indirectly
,
take
more
for
serving
an
Extent
or
Execution
,
than
after
the
Rate
of
12
d.
in
the
Pound
for
every
10
l.
and
6
d.
for
every
Pound
above
100
l.
on
pain
to
forfeit
treble
Damages
to
the
party
grieved
;
and
besides
,
40
l.
between
the
Queen
and
the
Prosecutor
.
This
Act
not
to
extend
to
Fees
of
Executions
within
Cities
or
Corporations
.
Yet
the
Sheriff
,
by
the
Equity
of
Stat.
23
H.
6.
c.
10.
he
shall
take
4
d.
for
every
Warrant
,
Winch.
21.
Upon
the
words
of
this
Statute
it
was
a
Question
much
Argued
in
Latch
.
17.
51.
Welden
and
Vesey
,
Jones
307.
Lister
and
Bromley
,
Cro.
El.
335.
Gurney's
Case
,
Cro.
Car.
286.
Lister's
Case
,
Winch.
p.
21
,
50.
Empson's
Case
,
where
the
Statute
gives
12
d.
in
the
Pound
for
the
first
100
l.
and
if
exceeds
that
,
then
but
6
d.
Whether
this
shall
be
taken
,
but
only
6
d.
in
the
Pound
for
all
that
exceeds
100
l.
or
whether
he
shall
have
12
d.
for
the
first
100
l.
and
Six
pence
for
the
rest
?
And
it
was
Adjudged
that
he
shall
have
12
d.
for
every
Pound
of
the
first
Hundred
,
and
6
d.
for
every
other
Pound
above
the
Hundred
:
And
so
is
the
constant
practice
.
Tho'
Hobart
(
in
Winch.
50.
Empson's
Case
)
was
strong
against
it
,
and
that
the
Sheriff
shall
have
but
6
d.
in
the
Pound
.
As
to
the
Proviso
,
That
it
shall
not
extend
to
Executions
within
Cities
or
Corporations
,
it
was
held
,
That
it
was
only
to
be
intended
for
the
executing
Judgments
given
in
the
Courts
of
the
said
Corporation
,
and
not
to
the
Sheriffs
of
Cities
or
Corporations
,
for
executing
Judgments
out
of
Superiour
Courts
,
Jesson
.
Sheriff
of
Coventry's
Case
,
cited
in
Lister
and
Bromley
,
Cro.
Car.
287.
Vide
Latch
.
17
,
52.
Poph.
173.
Welden
and
Vesey
,
The
Case
Argued
.
In
an
Action
upon
this
Statute
of
29
Eliz.
against
the
Sheriff
for
excessive
Fees
,
it
was
moved
in
Arrest
of
Judgment
,
because
it
said
ad
Parliament'
tent'
per
prorogat'
15
Febr.
29
El.
Stat.
29
El.
when
began
.
and
the
Rolls
appeared
(
by
Copy
sworn
)
29
Oct.
28
Eliz
the
Parliament
began
,
and
an
Adjornment
to
17
Nov.
6.
and
no
Prorogation
at
all
.
So
35
El.
1.
Sect.
11.
it
said
29
El.
6.
Vide
1
Anders
.
294.
Rast.
Abr.
Elenchus
Parliam
.
&
Keb.
3.
742.
Sprig
and
Eve
.
Quaere
,
When
one
Sheriff
shall
make
the
Extent
,
and
the
other
Sheriff
the
Liberate
,
who
shall
have
the
Fees
given
by
the
Statute
.
Note
,
The
Fees
shall
be
paid
by
him
that
sets
him
at
work
,
and
not
by
the
Prisoner
.
Of
whom
the
Bayliff
on
Arrest
having
taken
7
s.
for
Attorneys
Fees
,
was
convicted
of
Extortion
,
1
Keb.
623.
Le
Roy.
versus
Wade
.
Poundage
was
allowed
the
Sheriff
out
of
100
l.
(
Fine
imposed
after
Conviction
on
Indictment
of
Battery
in
B.
R.
)
levied
upon
a
Fieri
fac
'
,
and
it
was
allowed
out
of
the
Money
,
in
the
hands
of
the
Clerk
of
the
Crown
payed
by
the
Sheriff
.
Tho'
there
was
no
President
in
B.
R.
for
it
.
But
the
Barons
always
make
such
allowance
in
the
Exchequer
,
after
the
Moneys
paid
in
▪
there
by
the
Clerk
of
the
Crown
,
Sir
Thomas
Jones
185.
Le
Roy
versus
Wade
.
Of
Sheriffs
Security
and
Remedy
for
Fees
,
and
what
Fees
they
may
take
or
not
,
and
what
shall
be
Extortion
in
them
or
not
,
and
how
punishable
.
What
Security
the
Sheriff
may
take
for
his
Fees
or
not
.
The
Warden
of
the
Fleet
,
and
the
Warden
of
the
Palace
of
Westminster
,
may
take
Bond
for
Diet
and
due
Fees
of
the
Office
,
Hetly
176.
Harris
and
Lea.
The
Sheriff
may
take
a
single
Bill
for
his
The
Sheriff
shall
take
single
Bill
,
for
his
Fees
but
not
with
a
penalty
.
Fees
,
and
that
is
the
ordinary
course
,
but
not
with
a
Penalty
.
To
this
purpose
there
is
a
notable
Case
,
Empson
and
Bathurst
,
Winch
22.
The
Condition
of
a
Bond
to
the
Sheriff
is
to
pay
20
l.
That
is
,
for
Money
which
is
given
to
him
for
his
Fees
,
which
are
due
by
the
Stat.
of
29
Eliz.
Defendant
pleads
the
Statute
of
23
H.
6.
c.
10.
the
Case
was
;
A
Statute
of
200
●
was
acknowledged
to
the
Defendant
by
J.
S.
and
this
was
extended
by
the
Plaintiff
being
Under-sheriff
,
and
it
was
agreed
between
C.
E.
Brother
to
the
Plaintiff
,
and
the
Under-sheriff
before
the
Libertate
excecuted
,
That
the
Defendant
should
enter
into
the
said
Bond
to
the
use
of
the
Plaintiff
.
Three
Points
were
resolved
per
Curiam
.
1.
This
Bond
is
not
within
the
Statute
of
23
Statute
23
H.
6.
H.
6.
for
the
Party
was
not
within
the
Ward
of
the
Sheriff
.
And
so
was
Beaufage's
Case
.
2.
The
Sheriff
may
not
take
his
Salary
appointed
by
the
Statute
till
a
compleat
Execution
,
i.
e.
till
the
Libertate
,
for
the
words
of
the
Statute
are
in
the
Negative
,
and
doth
not
establish
the
Fees
,
but
only
tolerates
them
.
And
by
Hobart
,
Action
is
by
Sheriff
.
if
the
Conisee
sue
an
Extent
,
and
then
refuse
to
sue
the
Liberate
,
to
the
intent
to
defraud
the
Sheriff
of
his
Fees
;
the
Sheriff
shall
have
his
remedy
by
Action
on
the
Case
.
3.
This
Obligation
is
void
by
the
Common
Law
,
and
Extortion
,
as
Dive
and
Manningham
Case
is
,
Plowd
.
65.
The
Sheriff
may
take
a
Bond
with
a
great
Penalty
,
for
the
appearance
of
the
Party
,
but
not
for
his
Fees
,
by
the
23
of
H.
6.
for
that
Statute
as
to
Fees
is
not
repealed
by
29
Eliz.
What
Remedy
the
Sheriff
shall
have
for
his
Fees
.
Action
of
Debt
lies
for
a
Sheriff
upon
the
Statute
of
29
Eliz.
c.
4.
for
Execution
Fees
,
al
▪
tho'
the
Statute
doth
not
say
he
shall
have
the
Fees
,
nor
any
Action
for
them
;
but
only
saith
,
he
shall
not
take
for
any
Execution
made
,
any
Consideration
or
Recompence
,
besides
what
is
therein
mentioned
,
which
it
shall
be
lawful
for
him
to
take
(
viz.
)
12
d.
for
20
s.
where
the
Sum
doth
not
exceed
100
l.
and
6
d.
above
100
l.
1
Rolls
Abr.
598
Proby
and
Lumly
versus
Mitchel
,
1
Rolls
Rep.
404.
The
Sheriff
shall
have
Action
on
the
Case
,
but
not
debt
upon
Assumpsit
,
to
pay
his
Fees
due
by
the
Law
of
the
Realm
,
for
to
execute
an
Execution
.
Moor
699.
But
he
shall
have
Debt
for
his
Fees
not
prohibited
by
the
Statute
of
29
Eliz.
Moor
853.
Staunton
and
Proby
,
Moor
667.
Mor.
667.
S●llyard
and
Stamp
.
Where
and
in
what
Actions
the
Sheriff
shall
not
take
Fees
.
The
giving
of
Money
to
a
Sheriff
to
Arrest
a
Man
is
against
the
Law
,
1
Rolls
Rep.
313.
A
Sheriff
cannot
take
Money
for
Fees
upon
delivery
of
Warrants
to
his
own
Bayliff
,
but
must
stay
till
the
Money
is
levied
,
aliter
if
it
be
to
Special
Bayliff
,
Moor
p.
468.
●
.
669.
Sullyard
and
Stamp
.
No
Fee
is
due
to
the
Sheriff
for
Executing
a
Cap.
Utlag
▪
Cap.
Utlegat
.
either
for
Warrant
to
Execute
i●
,
or
for
the
Retorn
of
it
.
Sheriff
took
200
l.
to
Execute
Hab.
fac
.
Possessionem
,
Hetly
p.
52.
Wildsheres
Hab'
fac
.
Possession
.
Case
,
Litt.
Rep.
65.
Mesme
Case
.
Per
Cur'
Its
great
oppression
to
the
Subjects
,
that
the
Sheriffs
(
to
whom
the
Statute
had
given
so
much
in
the
Pound
,
in
Case
of
Execution
against
a
personal
Estate
)
should
take
such
Fees
in
case
of
a
real
Estate
;
and
it
was
said
,
it
was
not
to
be
found
that
they
have
any
legal
Fee
upon
this
Execution
,
but
the
usual
Fee
which
they
ought
to
take
is
2
s.
4
d.
2
Siderfin
155.
What
shall
be
said
Extortion
in
Sheriffs
and
Gaolers
,
&c.
and
how
punishable
.
As
to
the
Sheriffs
taking
Bonds
,
Extorsivè
,
Vid.
supra
in
tit
.
Stat.
23.
H.
6.
c.
10.
By
W.
1.
c.
26.
no
Sheriff
or
any
Minster
of
the
King
,
shall
take
any
reward
for
doing
his
Office
,
but
only
that
which
the
King
allows
,
upon
pain
that
he
shall
render
double
to
the
Party
,
&c.
but
later
Statutes
have
permitted
them
to
take
,
in
some
Cases
.
But
yet
,
such
reasonable
Fees
as
have
been
allowed
by
Courts
of
Justice
of
old
to
inferior
Ministers
and
Attendants
on
Courts
,
if
they
be
demanded
,
it
s
no
Extortion
,
Co.
1
Ins●
.
368.
Shirly
and
Packer
.
10
Rep.
101.
If
any
Bayliff
or
other
Sheriffs
Officer
,
shall
take
any
thing
of
any
person
,
to
spare
them
for
appearing
at
the
Assizes
,
Sessions
of
the
Peace
or
the
like
,
it
is
Extortion
.
If
the
Sheriff
,
or
any
of
his
Officers
shall
take
any
Money
,
or
other
reward
for
the
omitting
of
any
Arrest
or
Attachment
to
be
made
;
it
is
Extortion
,
and
the
Sh●riff
o●
Officer
so
offending
,
shall
forfeit
for
every
such
offence
10
l.
to
the
King
and
Informer
,
32
H.
6.
c.
10.
As
to
the
Punishment
of
Sheriffs
for
Extortion
,
it
s
either
by
Indictment
,
Information
,
Imprisonment
,
Commitment
.
As
to
Indictments
,
what
is
good
or
not
.
Indictment
of
Extortion
against
a
Bayliff
of
Indictment
.
an
Hundred
,
qd'
Colore
Officij
he
took
Extorsive
Money
,
and
shews
not
for
what
matter
or
cause
.
Per
Curiam
,
It
s
well
enough
,
the
Officer
being
Bayliff
of
an
Hundred
,
Especially
being
after
a
Verdict
.
But
Quaere
of
this
,
1
Keb.
557.
the
King
and
Gover.
By
23
H.
6.
c.
20.
on
Extortion
treble
Damages
Treble
damages
.
are
given
to
the
Party
,
and
the
Justices
of
Peace
may
Assess
them
;
but
they
ought
first
to
enquire
of
the
Damages
by
a
Jury
.
Therefore
in
Bumpsteads
Case
,
Cro.
Car.
488.
Indictment
was
against
the
Sheriff
fór
Extortious
Fees
,
on
two
several
Indictments
;
They
awarded
to
the
one
treble
Damages
;
That
is
,
where
he
took
of
one
20
l.
Extorsivè
,
they
awarded
to
the
Party
3
l.
and
40
l.
to
the
King
.
And
on
the
other
where
it
was
found
he
took
8
s.
8
d.
Extorsivè
,
they
awarded
he
should
pay
to
the
Party
26
s.
8
d.
So
a
quadruple
value
,
and
20
Fine
to
the
King
.
And
it
was
adjudged
Error
,
causa
qua
supra
.
The
Indictment
must
be
contra
formam
Statuti
,
Contra
formam
Stat.
23
H.
6.
if
they
will
proceed
upon
the
Statute
of
23
H.
6.
id
.
ibid.
The
Court
were
doubtful
,
if
this
Statute
extend
to
Extortions
,
unless
taken
upon
Arrest
.
And
Judgment
was
reversed
.
The
Sheriffs
Bayliffs
were
indicted
at
the
Indictment
at
Quarter
Sessions
.
Information
,
Informers
have
the
3
l.
Quarter
Sessions
for
Extortion
,
Jones
379.
The
King
against
Lamfern
.
An
Informer
on
Conviction
of
a
Prisoner
for
Extortion
,
or
other
Penal
Law
,
may
have
the
third
part
of
the
Fine
,
according
to
the
Kings
privy
Seal
for
that
purpose
.
And
he
had
so
of
10
l.
set
on
a
Bayliff
for
3
l.
taken
for
Execution
done
to
his
person
,
1
Keb.
357.
and
pag.
487.
Information
was
brought
against
the
Keeper
of
the
Gaol
,
or
Prison
of
the
Castle
of
Maidstone
,
for
Extortion
on
the
Statute
of
23
H.
8.
And
it
was
found
by
Special
Verdict
,
that
there
is
not
any
Castle
at
Maidstone
but
a
Gaol
,
and
the
Defendant
was
Gaoler
there
.
Per
Curiam
,
Judgment
pro
Querente
,
2
Rolls
Abr.
211.
Goodwin
and
May.
In
2
Brownl.
283.
The
Sheriff
was
committed
to
the
Fleet
for
taking
Illegal
Fees
,
2
Browl.
283.
A
Serjeant
of
London
was
committed
in
Execution
Commitment
for
taking
illegal
Fees
.
Mitigation
of
F●●e
.
for
a
Fine
in
Extorting
Fees
on
an
Arrest
,
and
a
third
part
was
allotted
to
the
Prosecutor
.
His
Wife
petitioned
the
Court
to
mitigate
the
Fine
,
but
they
could
not
,
3
Keb.
328.
the
King
and
Welson
.
The
Sheriff
of
Suffolk
was
imprisoned
for
taking
a
Guinea
,
there
being
only
2
s.
due
to
him
,
and
he
retorned
two
Guineas
to
the
Plaintiff
,
being
double
of
what
he
had
taken
,
on
the
3
Ed.
1.
cap.
26.
and
so
he
was
discharged
,
3
Keb.
714.
Butlers
Case
.
Assumpsit
and
Consideration
about
paying
Fees
,
what
shall
be
good
or
not
.
If
a
Man
assume
for
Money
given
to
serve
certain
Process
,
this
is
not
a
good
consideration
,
as
being
against
Law
.
For
it
is
Extortion
in
the
Sheriff
to
take
it
,
and
unlawful
for
the
other
to
give
it
,
H.
10.
Jac.
Boothby
and
Alport
,
1
Rolls
Abr.
16.
Shirley
and
Parker
.
Ergo
Cro.
El.
654.
is
not
Law
,
Stamp
and
Sullyard
.
Executor
Sues
Execution
by
Elegit
,
and
B.
an
Estranger
as
a
friend
to
the
Executor
,
in
consideration
that
the
Sheriff
will
Execute
the
said
Elegit
presently
,
and
of
6
d.
paid
him
by
the
Sheriff
assumes
to
pay
60
l.
to
him
;
whereupon
the
Sheriff
Executes
the
Writ
.
This
Consideration
is
against
Law
;
for
the
Sheriff
ought
to
do
his
Duty
without
reward
;
and
this
60
l.
is
not
any
discharge
of
Sheriffs
Fees
,
due
by
the
Statute
being
given
by
a
Stranger
,
and
not
exprest
for
them
,
1
Roll.
Ab.
By
a
Stra●ger
.
16.
Bird
and
Cage
,
and
tho'
it
was
alledged
,
that
this
Sum
promised
him
is
no
more
than
what
the
Statute
of
29
Eliz.
allows
him
to
take
for
his
Fees
;
yet
that
helps
not
the
Case
,
for
that
Statute
only
excuseth
him
for
his
taking
Fees
,
whereas
the
Common
Law
did
not
permit
him
to
take
any
thing
for
the
executing
Writs
.
And
the
giving
of
6
d.
is
no
sufficient
Consideration
being
joyned
with
the
other
that
is
unlawful
,
Cro.
Jac.
103.
Mesme
Case
.
A.
is
Outlaw'd
at
the
Suit
of
B.
for
Debt
,
and
B.
Assumes
in
Consideration
,
that
C.
an
Estranger
In
consideration
that
C.
an
Estranger
will
arrest
a
Man
.
will
Arrest
A.
upon
a
Cap.
Utlag
'
,
that
he
will
pay
him
40s
.
This
is
no
good
Consideration
,
altho'
he
shews
in
his
Declaration
that
he
was
after
made
a
Special
Bayliff
to
the
Sheriff
,
to
Arrest
him
by
a
Warrant
directed
to
him
.
This
is
Extortion
,
and
the
Sheriff
by
such
means
may
extort
great
sums
for
doing
his
Office
:
And
the
Bayliff
is
the
Officer
of
the
Sheriff
and
his
Servant
,
1
Roll.
Abr.
ib.
Faldoe
and
Salter
.
Jones
Promise
to
a
Stranger
to
procur●
the
Sheriff
to
arrest
J.
S.
is
good
.
65.
Mesme
Case
,
Latch
54.
Mesme
Case
.
But
if
a
Promise
be
made
to
a
meer
Stranger
to
go
to
the
Sheriff
,
and
procure
him
to
Arrest
S.
J.
this
is
a
good
Consideration
;
so
if
one
pray
me
to
go
with
the
Sheriff
to
Assist
him
,
in
making
Execution
,
and
Promiseth
me
,
&c.
it
s
good
.
CHAP.
XXXII
.
Bonds
,
or
Covenant
between
the
High-sheriff
and
Under-sheriff
,
or
other
Officers
.
What
shall
be
good
in
Law
,
or
not
:
And
when
said
to
be
forfeited
,
or
not
.
Bonds
,
Covenants
,
&c.
IF
the
Under-sheriff
Covenant
with
his
High-sheriff
,
Difference
between
a
Co●enant
and
a
Bond.
to
save
him
harmless
from
all
Fines
and
Amerciaments
for
any
Escape
;
and
Covenants
also
,
That
he
will
not
execute
any
Writ
of
Execution
above
the
Sum
of
20
l.
without
Warrant
from
the
High-sheriff
:
This
last
Covenant
is
against
Law
,
and
void
;
yet
the
other
is
good
,
(
but
a
Bond
in
such
case
is
void
in
all
.
)
For
by
the
Statute
of
27
Eliz.
c.
12.
the
Under-sheriff
takes
Oath
to
execute
all
Process
,
Hob.
15.
Norton
and
Sims
,
2
Roll.
Abridgm
.
30.
mesme
Case
.
Vide
supra
tit
.
Under-sheriff
.
The
Keeper
of
Ludgate
gives
Bond
to
the
To
save
Sheriff
harmless
from
Escapes
.
Sheriffs
of
London
,
That
he
should
safely-keep
the
Prisoners
committed
to
his
Charge
,
and
should
save
the
Sheriff
harmless
from
all
Escapes
.
The
Bond
is
good
.
(
Quaere
as
to
the
last
part
.
)
Cro.
El.
466.
Hector
and
Genn●t
.
Escape
on
Cap.
Utlag
.
being
void
,
because
Retorned
10
years
after
,
it
was
awarded
.
But
it
is
not
forfeited
by
Escape
of
one
taken
by
a
Capias
Utlagat
'
in
Debt
;
because
the
Capias
Utlagat
'
was
awarded
the
25th
of
Eliz.
and
was
Retornable
the
35th
of
Eliz.
and
so
meerly
void
.
For
every
Capias
ought
to
be
Retornable
the
ensuing
Term
;
because
of
the
mischief
that
otherwise
might
befal
the
Prisoner
to
be
kept
always
in
Prison
,
and
he
might
well
let
him
at
Large
,
21.
H.
7.
16.
8.
Ed.
4.
4.
Dyer
175.
Tho'
peradventure
this
Arrest
,
by
force
of
this
Process
,
is
excusable
in
False
Imprisonment
by
the
Sheriff
,
yet
clearly
it
s
no
lawful
Imprisonment
:
and
as
to
the
prejudice
or
benefit
of
a
Stranger
,
he
shall
never
be
said
to
be
a
Prisoner
,
14
H.
8.
16.
11
H.
4.
36.
Debt
on
Bond
to
perform
Covenants
;
which
Defendant
not
to
let
at
large
any
Prisoner
arrested
in
Debt
.
Need
not
shew
the
time
and
place
of
the
Arrest
.
was
,
That
the
Defendant
should
not
let
at
Large
any
Prisoner
arrested
,
without
the
Sheriffs
Warrant
.
The
Plaintiff
shews
,
the
Defendant
had
let
such
a
Prisoner
at
Large
at
Westminster
,
&c.
it
is
good
without
shewing
the
time
and
place
of
the
Arrest
.
For
the
Escape
is
the
Material
part
of
the
Covenant
,
and
the
manner
of
the
Arrest
is
not
in
Question
,
and
whether
he
were
legally
taken
or
imprisoned
,
was
not
material
,
when
he
was
suffered
to
go
at
Large
,
Siderfin
p.
30.
Jenkin's
Case
.
The
Condition
of
the
Bond
was
,
Whereas
For
a
Bayliff
of
an
Hundred
to
make
true
Retorn
of
all
his
Writs
.
Pleading
.
S.
was
Sheriff
of
Surrey
,
and
made
T.
Bayliff
of
the
Hundred
of
B.
Now
if
he
should
execute
his
Office
,
&c.
and
make
true
Retorn
of
all
Writs
directed
to
him
,
then
,
&c.
Defendant
pleads
on
Oyer
particularly
,
performance
to
all
.
Plaintiff
Replies
,
Process
was
directed
to
him
,
to
levy
Issues
on
J.
S.
and
that
he
made
his
Warrant
to
T.
to
Execute
the
same
,
which
Warrant
he
did
not
Retorn
.
On
Demurrer
,
Judgment
was
against
the
Plaintiff
;
because
he
did
not
shew
that
the
Issues
were
to
be
Levied
in
the
Hundred
of
B.
For
tho'
the
words
are
general
,
to
make
Retorn
of
all
Warrants
directed
to
him
,
yet
it
was
to
be
understood
of
such
only
as
were
to
be
Executed
in
his
own
Hundred
,
of
which
he
was
Bayliff
,
Allen
p.
10.
Slaughter
and
Day
,
2
Sand.
414
,
415.
mesme
Case
cited
there
.
Debt
on
Bond
by
Under-sheriff
,
to
defray
the
Expence
of
the
High-sheriff
;
and
Performance
To
pay
the
Expence
of
the
High-sheriff
.
pleaded
.
Plaintiff
Replies
,
J.
S.
recovered
in
Charges
in
carrying
the
Prisoner
from
Chelmsford
to
London
,
not
shewing
it
was
done
by
virtue
of
Habeas
corpus
.
Defendant
Rejoyns
,
This
was
by
private
Agreement
.
Plaintiff
Demurs
,
because
it
was
not
Concluded
to
the
Country
.
Per
Cur
'
,
There
must
be
a
Compulsion
shewed
by
Habeas
corpus
to
the
Sheriff
of
Essex
,
without
which
he
cannot
deliver
him
over
to
another
Sheriff
;
and
then
there
is
an
Allowance
upon
the
Account
in
the
Exchequer
,
in
case
of
Transporting
,
being
Signed
by
the
Judges
.
And
the
Court
gave
leave
to
Discontinue
,
3
Keb.
448
Lewen
and
Allcock
.
As
to
the
Form
of
the
Indentures
and
Covenants
between
the
High-sheriff
and
Under-sheriff
,
vide
Dalton
,
Greenwood
of
Courts
,
and
several
other
President
Books
.
CHAP.
XXXIII
.
Of
Sheriffs
Accompts
.
AS
for
the
Periods
of
Time
wherein
the
manner
of
the
Sheriffs
Accompting
to
the
King
have
been
altered
by
Acts
of
Parliament
and
Practice
,
you
may
peruse
a
Learned
Treatise
of
the
late
Lord
Chief
Justice
Hales
touching
Sheriffs
Accompts
.
You
find
there
how
the
King's
Farms
were
anciently
Answered
by
the
Sheriffs
,
and
the
manner
of
the
Collecting
of
the
Kings
Revenues
of
the
County
.
Now
that
which
was
Firmi
Comitatus
,
were
the
Vicountiel
Rents
,
and
they
came
under
various
denominations
,
(
viz.
)
Blanch-Rents
,
Albo
firmae
Praestatio
pro
pulchrè
placitando
,
Visus
Frankpledg'
,
Redditus
ad
Turnum
,
Certum
Letae
;
and
these
were
in
time
contracted
to
a
sort
of
Annual
Revenues
.
And
the
uncertain
Annual
Revenue
was
called
Proficuum
Comitatus
,
which
in
ancient
Times
was
considerable
,
when
most
Law-Suits
were
Transacted
in
Counties
and
in
Hundred
Courts
,
Fines
,
Issues
and
Amerciaments
in
those
Courts
;
and
in
those
elder
Times
they
were
considerable
.
The
Farm
of
the
Bailywick
of
one
County
was
let
at
100
l.
per
Annum
temp.
H.
3.
but
by
Stat.
27.
H.
6.
c.
10.
the
Sheriff
is
restrained
from
Letting
his
Bailywick
to
Farm
.
But
these
were
formerly
,
and
now
are
answered
at
two
Terms
in
the
year
,
Michaelmass
and
Easter
,
and
are
called
proferae
Vicecomitis
,
or
Sheriffs
proffers
.
But
it
is
as
it
were
a
Mock-payment
(
now
being
so
inconsiderable
,
most
Causes
being
tryed
in
Superiour
Courts
)
for
upon
Account
he
generally
has
all
his
Proffers
paid
and
allowed
to
him
again
.
Vide
●he
Statute
of
4
H.
5.
2.
&
34
H.
8.
c.
16.
Since
the
Statute
of
34
H.
8.
c.
16.
the
Sheriffs
might
discharge
themselves
of
the
Casual
Charges
,
or
Annual
uncertain
Charges
,
and
most
ordinarily
after
this
Statute
did
discharge
themselves
of
the
entire
Firmae
de
proficuis
Comitatus
;
and
they
ascertained
to
the
Court
,
that
there
were
no
such
profits
beyond
the
charge
in
collecting
them
,
or
that
the
charge
of
keeping
the
County
Court
,
the
Tourn
and
Hundred
Courts
,
which
were
the
things
that
made
up
the
Firma
de
proficuis
surmounted
the
benefit
:
And
this
Making
appear
,
was
no
other
than
the
Oath
of
the
Sheriff
,
and
the
Statute
gives
him
that
benefit
.
Yet
tho'
the
Sheriffs
did
use
to
discharge
themselves
by
their
Oaths
of
the
entire
Fermae
de
proficuis
Comitatus
,
and
of
a
great
part
of
the
Vicountiels
;
yet
till
Anno
Dom.
1650.
these
entire
Farms
were
constantly
written
out
in
Charge
to
the
Sheriff
upon
the
Summons
of
the
Pipe
,
tho'
it
was
but
a
piece
of
Formality
.
But
now
the
Firmae
de
proficuo
Comisat
'
is
wholly
put
out
of
the
Charge
of
the
summons
of
the
Pipe
,
by
an
Order
made
in
the
Exchequer
1650
,
which
is
followed
to
this
day
.
By
the
Act
in
Car.
2.
Entituled
,
An
Act
for
the
preventing
the
unnecessary
delays
of
Sheriffs
in
passing
their
Accounts
.
No
Sheriff
shall
be
charged
in
Account
to
answer
any
illeviable
Seisure
,
Farm
,
Rent
or
Debt
,
or
other
thing
,
which
was
not
writ
in
Process
to
him
or
them
to
be
levied
,
wherein
the
persons
of
whom
,
or
the
Lands
or
Tenements
out
of
which
,
together
with
the
Cause
for
which
the
same
shall
be
so
levied
,
shall
be
plainly
and
particularly
expressed
;
but
shall
be
thereof
wholly
discharged
,
without
Petition
,
Plea
,
or
other
trouble
or
charge
whatsoever
.
If
the
Sheriff
shall
seise
the
Goods
of
one
that
is
Outlawed
,
&c.
and
does
not
accompt
for
the
same
,
the
Owner
of
the
Goods
may
have
Action
of
Trespass
upon
such
Seisure
;
and
shall
recover
the
Goods
,
or
the
value
thereof
in
Damages
.
For
the
Sheriff
must
plead
that
he
has
accounted
for
them
;
otherwise
he
shall
be
a
Trespassor
ab
initio
.
Note
,
The
Sheriff
is
Accountable
in
respect
of
his
Office
;
but
if
he
be
made
sine
Computo
,
he
has
by
this
the
Profits
to
his
own
use
,
1
Roll.
Rep.
183.
O.
N.
in
the
Exchequer
makes
the
Sheriff
Debtor
to
the
King
,
and
the
Debtor
himself
Debtor
to
the
Sheriff
,
Hob.
206.
Speake
and
Richard's
Case
.
CHAP.
XXXIV
.
Of
Coroners
.
How
the
Coroners
must
be
chosen
,
and
the
Credit
the
Law
gives
to
them
;
and
how
when
they
shall
be
discharged
.
The
Demeanours
as
to
Outlawries
.
Coroners
Inquest
.
Of
Coroners
,
&c.
THe
Office
of
Coroner
ever
was
,
and
yet
is
4
Rep.
41.
Heydon
.
8
Rep.
41.
Gr●nly's
Case
.
5
Rep.
Specot's
Case
.
4
Rep.
45.
Wrote's
Case
.
9
Rep.
31.
Strat.
Mar.
5
Rep.
108.
de
Wreck
.
10
Rep.
Denband
.
St.
28
Ed.
3.
c.
6.
Elect.
of
●oroners
.
Vid.
4
Inst.
271.
Mag.
Ch.
17.
cap.
W.
1.
c.
●0
.
Artic.
super
Chart.
c.
3.
Eligible
in
full
County
by
the
Freeholders
,
by
the
Kings
Writ
De
Coronatore
Eligendo
.
And
so
was
the
Sheriff
in
former
times
Eligible
,
and
the
Sheriff
was
chosen
by
Writ
directed
to
the
Coroners
.
The
Coroner
,
because
he
is
Elected
by
the
Freeholders
of
the
County
by
Writ
,
and
retorned
of
Record
in
the
Chancery
,
albeit
the
King
dieth
,
remaineth
.
Now
seeing
the
Coroners
are
Elected
by
the
County
,
if
they
be
insufficient
and
not
able
to
answer
such
Fines
and
other
Duties
,
in
respect
of
their
Office
,
the
Country
as
their
Superiour
shall
answer
for
the
same
.
If
a
Certiorari
be
directed
to
the
Sheriff
only
in
case
of
Appeal
,
or
Indictment
of
Death
,
it
is
not
sufficient
to
remove
the
Cause
;
for
the
Coroner
is
Judge
of
the
Cause
,
and
not
the
Sheriff
;
only
the
Sheriffs
have
Counter
Rolls
with
the
Coroners
.
3
H.
7.
c.
1.
gives
to
the
Coroner
a
Fee
of
13
s.
4
d.
upon
the
View
of
the
Body
,
and
of
the
Goods
of
the
Murderers
:
But
nothing
on
Misadventure
,
1
H.
8.
c.
7.
&
W.
1.
c.
10.
Coroner
is
an
Officer
for
the
King
;
but
he
is
not
an
Officer
when
he
comes
between
the
parties
;
and
the
Court
will
not
suffer
Examination
▪
when
the
Testimony
may
be
vivâ
voce
,
2
Rol.
Rep.
461.
Altho'
the
Coroner
takes
Examination
,
yet
in
the
Case
of
the
King
it
is
at
the
discretion
of
the
Judges
,
if
he
will
allow
them
or
take
them
vivâ
voce
,
2
Roll.
Rep.
ibid.
Before
the
Stat'
Artic
super
Cler.
3.
the
Coroner
of
the
Verge
by
himself
might
Enquire
of
Murder
:
But
because
the
King's
Court
often
removed
into
another
County
,
by
reason
whereof
no
Enquiry
could
be
made
,
that
Statute
was
made
to
remedy
it
,
and
one
person
may
be
Coroner
of
the
King's
Houshold
and
Coroner
of
the
County
;
and
yet
they
are
two
Coroners
,
&c.
Quando
duo
jura
concurrunt
,
&c.
2
Leon.
p.
160.
Borow
and
Holcroft
.
Where
Process
shall
be
awarded
to
the
Coroners
,
or
not
.
When
the
Sheriff
is
Plaintiff
in
Action
of
Waste
,
Election
shall
go
to
the
Coroners
,
Hob.
85.
Vide
Plowd
.
Wimbish
and
Willoughby
.
Where
Writs
shall
be
directed
to
the
Coroners
,
and
where
not
.
A
Sheriffs
Bond
for
Appearance
is
sued
;
the
Writ
upon
it
ought
to
be
directed
to
the
Coroner
,
because
the
Bond
is
to
be
sued
in
the
Sheriffs
Name
,
Pract.
Reg.
Upon
a
Venire
fac
'
awarded
to
Coroners
,
and
Retorn
.
two
Coroners
Retorn
this
,
and
two
Coroners
Retorn
the
Distringas
,
where
at
the
time
of
the
Retorn
there
were
four
Coroners
;
this
is
not
good
,
because
all
the
Coroners
ought
to
make
the
Retorn
and
joyn
in
it
,
they
being
Ministers
and
not
Judges
,
Hob.
Rep.
Lamb
and
Wiesman
.
This
Case
is
Reported
by
Cro.
Jac.
383.
(
in
the
Exchequer-Chamber
.
)
The
Venire
fac
'
being
awarded
to
the
Coroners
,
was
Retorned
by
T.
B.
and
T.
R.
Coroners
;
whereas
at
the
time
of
the
Writ
awarded
and
retorned
there
were
two
other
Coroners
,
(
viz.
)
W.
S.
and
T.
P.
and
the
Retorn
ought
to
have
been
in
the
Name
of
the
four
Coroners
.
Per
Cur.
It
's
not
Error
.
1.
Because
it
ought
to
have
been
taken
by
way
of
Challenge
at
the
time
of
the
Trial
;
and
forasmuch
as
he
hath
not
challenged
it
,
he
shall
not
now
assign
it
for
Error
.
2.
Admitting
it
were
Error
assignable
at
Common
Law
,
yet
now
(
being
after
Verdict
)
is
aided
by
the
Stat●te
,
which
aids
Mis-Retorns
and
Insufficient
Retorns
,
and
this
is
but
a
Mis-Retorn
.
Upon
the
Venire
fac
.
Retorned
by
Coroners
.
their
Names
were
writ
A.
&
B.
Coronatores
,
and
upon
the
Hab'
corpora
the
Names
of
A.
and
B.
were
written
,
but
not
the
Name
of
Coroners
.
Per
Cur.
It
's
no
Error
:
But
if
their
Names
ought
to
have
been
here
,
then
it
is
not
aided
per
Stat.
32
H.
8.
nor
18
Eliz.
Cro.
Eliz.
703.
S●r●ggs's
Case
.
Where
a
Jury
is
Retorned
by
a
Coroner
,
where
it
ought
to
be
by
the
Sheriff
,
&
è
converso
,
this
is
not
redressed
by
the
Statute
Anno
32
H.
8.
18
Eliz.
(
Vide
the
late
Stat.
)
Writ
of
Covenant
was
directed
to
the
Coroners
of
Chester
,
with
a
claim
at
the
end
of
the
Writ
Quia
praed'
J.
D.
miles
est
Vicecomes
Comit.
Cestriae
fiat
Executio
brevis
praed.
per
Coronatores
ita
qd.
Vicecomes
s●
non
intromittat
.
Per
Cur.
If
the
Writ
be
directed
to
the
Sheriff
and
he
is
Party
it
is
,
good
to
avoid
the
doubt
to
take
a
Writ
to
the
Coroners
:
For
if
the
Defendant
appears
and
accepts
thereof
,
and
comes
in
and
levies
the
Fine
,
he
shall
never
after
assign
it
for
Error
,
Cro.
Car.
Done
and
Smith
.
If
a
Writ
be
directed
to
the
Coroners
,
if
Where
and
what
matters
done
and
executed
by
one
Coroner
where
there
are
more
shall
be
good
and
what
not
.
4
Rep.
41
,
45
,
46
,
47.
5
Rep.
Longs
Case
10
Rep.
103.
there
be
three
they
ought
all
to
execute
this
Warrant
,
for
the
same
is
to
be
executed
according
to
the
direction
.
And
by
Coke
the
difference
is
,
If
it
be
in
judicial
matters
any
two
of
them
may
do
it
,
if
in
ministerial
,
all
are
to
do
it
,
3
Bulst.
77
,
78.
Phelps
and
Winch●omb
.
so
Hob
p.
70.
The
Plaintiff
for
the
expedition
of
his
Tryal
,
surmised
that
he
was
Servant
to
the
Sheriff
of
Cornwal
,
where
the
Action
was
brought
,
and
prayed
a
Venire
to
the
Coroners
.
And
the
Defendant
non
dedixit
.
Per
Cur.
Forasmuch
,
as
if
the
Sheriff
had
retorned
this
Pannel
,
it
had
been
a
good
Cause
to
quash
the
Array
for
favour
,
that
the
Plaintiff
to
avoid
that
delay
might
well
shew
it
,
and
have
Process
to
the
Coroners
;
and
the
rather
,
for
that
this
is
a
judicial
Writ
,
Plow
.
74.
Cro.
Eliz.
581.
Cham.
and
Mathew
.
so
in
Ejectment
vers.
4.
who
Plead
non
cul
.
if
the
Plaintiff
suggest
,
that
the
Sheriff
is
of
Affinity
to
one
of
the
Defendants
,
shewing
how
;
and
upon
this
prays
a
Venire
fac
'
to
the
Coroners
,
and
the
Defendant
Be
a
great
delay
●
Rolls
Abr.
668.
Fox
and
Shepard
.
denies
it
not
,
and
the
Venire
fac
'
is
awarded
to
the
Coroners
;
It
s
well
awarded
:
For
tho'
none
of
the
Defendants
may
challeng
the
Array
,
for
that
the
Sheriff
is
of
Affinity
with
one
of
the
Defendants
;
yet
the
Plaintiff
ought
at
the
Tryal
either
challeng
the
Array
and
so
delay
himself
,
or
he
ought
not
to
Try
this
during
the
time
that
he
is
Sheriff
,
which
he
would
.
If
the
Sheriff
levy
a
Fine
,
the
Writ
of
Covenant
must
be
directed
to
the
Coroners
,
1
Roll.
Ab.
797.
Done
and
Simthart
.
Cro.
Car.
416.
Mesme
Case
,
Jones
p.
343.
Mesme
Case
and
this
Clause
was
in
the
end
of
the
Writ
,
quia
praed.
Johannes
Done
miles
est
Vicecomes
Comit.
Cestriae
fiat
Execut.
brevis
praed.
per
Coronatores
ita
qd.
Vicecomes
non
se
intromittat
.
In
a
thing
which
concerns
the
Sheriff
,
and
his
Interest
,
Venire
fac
.
ought
to
be
awarded
to
the
Coroners
,
Cro.
Jac.
551.
Loader
and
Samuel
.
The
Sheriff
who
was
Lessor
to
the
Plaintiff
was
Master
to
one
of
the
Coroners
in
Ejectment
;
the
cause
was
alledged
and
confessed
,
and
Venire
fac
'
issued
to
the
Coroners
ita
qd
.
the
Servant
should
not
intermeddle
,
Moor
625.
no.
853.
A
Retorn
of
a
Venire
by
three
Coroners
,
where
are
four
,
its
Error
at
Common
Law
,
but
holpen
by
the
Statute
,
Hob.
p.
70.
Venire
fac
'
was
awarded
to
the
Sheriff
,
which
was
quasht
for
favour
of
the
Under-sheriff
,
who
retorns
the
Pannel
and
a
new
Venire
fac
'
awarded
to
the
Sheriff
ita
qd'
le
Under-sheriff
ne
se
intromittat
.
It
s
no
Error
,
tho'
it
be
not
directed
to
the
Coroners
,
1
Roll.
Rep.
272.
Walters
Case
.
Venire
fac
'
not
to
be
awarded
to
the
Coroner
,
till
there
be
a
default
in
the
Sheriff
,
1
Rolls
Rep.
364.
Venire
fac
'
may
be
awarded
,
if
the
first
be
quasht
for
favour
in
the
Under-sheriff
,
1
Rolls
Rep.
272.
The
Authority
of
a
Coroner
,
and
of
what
things
he
may
enquire
,
&c.
and
the
Order
of
such
Enquiry
,
and
of
what
not
,
4
Rep.
41.
Walkers
Case
,
Heydon
45.
Vauxe's
Case
,
and
Wig's
Case
,
5
Rep.
109.
Foxly's
Case
.
The
Coroner
may
on
Estrepment
provide
against
Wast
by
taking
the
Posse
Comit.
Hob.
85.
in
Wast
brought
by
the
Sheriff
,
Earl
of
Cumberland
vers
.
Countess
Dowager
.
As
the
Sheriff
in
his
Tourn
may
enquire
of
all
Felonies
by
the
Common
Law
,
saving
the
death
of
a
Man
;
so
the
Coroner
can
enquire
of
no
Felony
,
but
of
the
death
of
a
Man
,
and
that
super
visum
Corporis
.
He
shall
also
enquire
of
the
Escape
of
the
Murderer
,
of
Treasure
Trove
,
Deodands
,
and
Wreks
of
the
Sea
.
He
ought
to
deliver
the
Inquisition
of
death
taken
by
him
at
the
next
Gaol
delivery
,
or
certifie
the
same
into
B.
R.
He
hath
power
to
bind
over
Witnesses
to
the
next
Gaol
delivery
in
that
County
:
Besides
the
Judicial
place
,
he
hath
Office
ministerial
as
a
Sheriff
,
viz.
when
there
is
a
just
exception
taken
to
the
Sheriffs
,
judicial
Process
shall
be
awarded
to
the
Coroner
to
execute
the
Kings
Writs
.
The
Sheriff
put
in
his
Challeng
to
have
a
Venire
fac
'
to
the
Coroners
,
because
the
Sheriff
was
his
Master
,
and
concludes
not
&
issint
favorable
.
Yet
its
good
,
Moor.
p.
470.
no.
853.
The
Parties
being
at
Issue
a
Venire
fac
.
was
awarded
to
the
Sheriff
,
and
afterwards
upon
Entry
quod
vicecomes
non
misit
berve
,
a
Venire
fac
'
was
prayed
and
awarded
to
the
Sheriff
,
the
Plaintiff
had
admitted
him
to
be
a
person
qualified
to
make
the
Retorn
.
But
per
Cur
'
,
Because
that
being
awarded
upon
the
Roll
is
but
as
a
Continuance
,
and
there
was
not
any
Venire
fac
.
taken
forth
,
and
it
s
but
matter
of
Form
to
make
such
a
Continuance
,
It
was
held
well
enough
,
Cro.
Jac.
35.
Willoughby
and
Egerton
,
Cro.
El.
853.
Cro.
Jac.
35.
Upon
Challeng
to
the
Sheriff
a
Venire
fac
.
was
awarded
to
the
Coroners
and
retorned
,
and
at
the
Nis
.
Prius
,
a
Tales
granted
by
the
new
Sheriff
,
its
Error
,
Mo.
p.
356.
n.
482.
Morgan
and
Wye
,
it
was
held
a
manifest
Error
,
Cro.
El.
894.
Corn
and
Paslow
,
and
not
aided
by
the
Statute
of
Misconveyance
of
Process
:
For
it
s
a
Mis-tryal
.
Process
once
directed
to
the
Coroners
,
shall
never
after
in
the
same
Cause
be
directed
to
the
Sheriff
,
tho'
the
same
Sheriff
which
first
was
be
removed
,
Mor.
356.
n.
422.
But
a
Quaere
is
made
of
this
in
Hob.
64.
Web's
Case
.
Demeanor
of
Coroners
as
to
Outlawrys
.
Outlawry
was
reversed
,
because
the
Names
of
the
Coroners
was
not
put
to
the
Judgment
,
1
Rolls
Rep.
266.
In
Outlawry
the
Judgment
was
Ideo
per
judicium
A.
B.
&c.
Coronat
.
Utlegat'
est
,
and
saith
not
Coronat'
Comit'
praed'
,
and
for
this
the
Outlawry
reversed
,
2
Rolls
Rep.
82.
Coroners
are
Judges
in
Outlawries
in
County
,
Courts
,
4
Rep.
72.
Mitton
Case
,
9
Rep.
119.
Lord
Sanchar's
Case
.
The
Statute
of
4
Ed.
1.
de
Officio
Coronatoris
,
provides
that
such
Inquest
shall
be
villarum
proxim'
adjacent
.
Per
Cur.
it
s
not
requisite
to
shew
they
are
the
next
Vills
,
it
shall
be
intended
if
the
contrary
appear
not
.
At
the
Common
Law
it
is
villarum
adjacent
.
and
this
Statute
hath
no
negative
words
,
and
so
the
Tryal
at
Common
Law
remains
,
2
Siderfin
144.
Barclay's
Case
.
Where
a
Man
shall
not
have
Averment
against
what
the
Coroner
affirms
upon
his
Examination
.
The
Court
agreed
a
melius
inquirend
.
after
an
Office
post
mortem
which
is
originally
to
the
Sheriff
.
But
after
an
Inquest
of
a
Coroner
super
visum
Corporis
,
&c.
that
he
died
of
a
Megrim
,
no
melius
inquirend
'
can
go
,
the
Original
not
being
before
the
Sheriff
,
especially
not
until
the
Inquest
be
quasht
.
And
there
it
s
but
ad
informand'
Conscientiam
Traversable
,
as
Barclays
Case
,
who
drowned
himself
,
and
the
Coroner
refused
to
hear
the
Kings
Witness
;
and
thus
in
case
of
miscarriage
and
quashing
the
former
Inquest
,
they
will
grant
a
new
one
,
1
Keb.
859.
the
King
against
Stanlack
.
Coroners
Inquest
.
A
flight
found
by
the
Coroners
Inquest
is
final
as
to
Forfeiture
of
Goods
,
and
cannot
be
tryed
again
,
Hob.
p.
318.
If
one
is
killed
in
a
Village
,
and
the
Coroners
make
no
Inquest
,
the
Village
must
be
amerced
,
1
Keb.
278.
Lord
Buckhurst
,
and
if
there
were
an
Inquest
,
it
must
be
retorned
per
Certiorari
;
the
Coroner
is
to
Retorn
his
Inquisition
at
the
next
Gaol
delivery
,
and
because
he
did
not
,
the
Court
Discharged
him
,
and
set
100
l.
upon
his
Head
,
they
having
found
it
Murder
,
280.
The
Coroner
ought
to
sit
upon
the
Body
of
every
Prisoner
that
dies
in
Prison
,
3
Instit.
52
,
91.
Where
the
Body
of
a
Felo
de
se
cannot
be
found
,
&
trait
devant
les
Coroners
,
his
Goods
shall
be
Forfeit
and
found
before
the
Justices
of
Peace
,
1
Roll.
Rep.
272.
Melius
Inquirend
'
upon
the
death
of
a
Man
directed
to
the
Coroner
and
not
to
the
Sheriff
,
because
none
but
Coroners
can
enquire
super
visum
Corporis
.
But
for
the
Misdemeanor
of
the
Sheriff
,
it
may
be
quasht
and
a
new
one
granted
;
the
Coroner
must
take
the
Evidence
in
Writing
,
and
must
bring
his
Examination
into
Court
upon
occasion
,
Mod.
Rep.
p.
82.
Process
may
be
awarded
against
a
Coroner
,
to
come
in
to
mend
the
Inquisition
,
or
may
be
served
with
a
Rule
to
attend
to
amend
matters
of
Form
,
but
not
matterr
of
substance
,
as
the
Inquest
found
G.
Felonice
seipsum
submers
.
fuit
,
but
saith
not
he
cast
himself
into
the
Water
.
But
Felonice
submersus
is
the
Substance
,
Siderfin
p.
209.
the
King
and
Glover
.
225.
vers.
King
and
Harrison
.
Inquisition
before
a
Coroner
,
without
saying
Legal
.
homin.
Villar
.
prox
adjacent
.
but
Legal
.
homin'
Paroch
.
de
A.
yet
good
.
Commission
to
the
Sheriff
(
in
the
nature
of
a
Melius
Inquirendum
)
to
enquire
of
the
death
of
a
Man
when
it
had
been
found
before
the
Coroner
before
is
against
the
Statute
of
28
Ed.
4.
9.
But
there
are
divers
Presidents
since
that
Statute
of
such
Commissions
awarded
.
The
Court
was
moved
for
a
Melius
Inquirendum
)
to
be
directed
to
the
Coroner
of
N.
to
enquire
what
Goods
T.
Felo
de
se
died
possest
of
,
because
the
Inquisiton
retorned
did
only
find
the
Goods
he
was
possest
of
in
London
.
Per
Glyn
,
Take
it
,
but
it
must
be
directed
to
the
Sheriff
,
because
the
Coroner
has
done
his
Office
already
,
Stiles
461.
Blackwell's
Case
,
and
so
was
Toomes
Case
.
The
Coroner
may
find
such
a
Nusance
as
occasions
the
death
of
a
Man
.
Allen.
p.
51.
and
the
Township
shall
be
amerced
thereupon
,
as
a
breach
in
a
Bridge
whereby
a
Man
falls
into
a
River
and
was
drowned
.
How
a
Coroner
shall
be
discharged
of
his
Office
,
and
what
shall
be
a
sufficient
Cause
to
discharge
him
,
or
not
,
vide
5
Rep.
57.
Specot's
Case
,
8
Rep.
41.
Greisly's
Case
,
9
Rep.
Sir
George
Reynell's
Case
.
The
Mayor
is
Coroner
in
the
City
of
London
,
4
Inst.
250.
But
He
doth
not
pronounce
Judgment
upon
Outlawry
;
but
the
Recorder
,
8
Rep.
City
of
London
.
The
Authority
and
Credit
the
Law
gives
to
the
Rolls
and
Records
of
the
Coroner
,
vide
supra
.
Retorns
upon
a
Capias
in
Process
.
VIrtute
istius
Brevis
cepi
J.
W.
infrascriptum
cujus
corpus
coram
Justic'
infrascript'
ad
diem
&
locum
interius
content'
habeo
parat'
prout
breve
istud
exigit
&
requirit
,
&c.
Lib.
Intr.
109.
c.
R.
S.
infranominat'
non
est
invent'
in
balliva
mea
,
&
quoad
cap'
J.
F.
infranom'
mandavi
J.
S.
ballivo
Libert'
de
F.
S.
qui
plenum
retorn'
habet
omnium
Brev'
&
execution'
eorundem
cui
executio
istius
brevis
totalit'
pertinet
faciend'
extra
quam
Libertatem
nulla
execut'
istius
brevis
inde
per
me
fieri
potest
,
qui
quidem
ballivus
mihi
sic
respondit
quod
cepit
corpus
praed'
J.
F.
cujus
corpus
praed'
R.
S.
coram
Justiciar'
dom
Regis
infrascript'
ad
diem
&
locum
infra
content'
habebit
,
Vel
sic
,
qui
quidem
ballivus
null'
mihi
dedit
respons
.
Lib.
Intr.
ibid.
VIrtute
istius
brevis
A.
B.
infrascript'
captus
est
per
corpus
suum
&
in
(
tali
Prisona
)
sive
Gaola
adeo
Languidus
detent'
quod
corpus
ejus
ad
diem
&
locum
interius
content'
habere
non
possum
absque
mortis
periculo
.
VIrtute
istius
brevis
Certifico
,
quod
postquam
istud
breve
mihi
liberat'
fuit
ad
capiend'
R.
T.
(
&
alios
Defendentes
)
in
isto
brevi
specificat'
idem
R.
&
alii
infranominat'
protulerunt
mihi
breve
dom'
Regis
de
supersed
.
quod
huic
brevi
est
consut'
virtute
cujus
supersed
.
omnino
.
These
Writs
usually
are
Retorned
by
the
Attorneys
themselves
,
by
the
consent
of
the
Sheriff
.
Nota
,
Upon
a
Capias
ad
respond
.
Tarde
is
no
good
Retorn
.
Retorn'
sur
Capias
ad
satisfaciend'
.
VIrtute
istius
brevis
mihi
direct'
cepi
corpus
infranominat'
A.
B.
cujus
quidem
corpus
coram
Justic'
infrascript'
(
vel
coram
dom'
Rege
)
ad
diem
&
locum
infracontent'
parat'
habeo
satisfaciend'
infranominat'
C.
D.
de
debito
&
damnis
infraspecificat'
prout
interius
mihi
Praecipitur
,
Lib.
Intr.
109.
Non
est
inventus
.
Nihil
,
ibid.
Quod
captus
est
per
praecept'
dom'
Regis
.
Quod
captus
est
super
Recogn'
fait
in
Concellar'
.
Quod
est
in
Prisona
per
Cap.
ad
sat.
en
Det.
QUod
ante
adventum
brevis
istius
praed'
R.
D.
captus
fuit
,
&c.
&
in
prisona
,
&c.
detentus
virtute
cujusdam
querelae
vers.
ipsum
per
nomen
R.
D.
in
placito
'
debiti
super
demand'
20
l.
in
Curia
,
&c.
ad
sectam
J.
G.
levat'
.
Retorn'
de
Levari
fac'
.
VIrtute
brevis
istius
cepi
in
manus
dom'
Regis
quoddam
hospitium
cum
tribus
Shopis
(
in
tali
loco
)
ipsius
J.
T.
infrascript'
quae
valent
per
annum
ultra
reprisas
10
l.
Et
quod
praedict'
hospitium
cum
Shopis
praed'
salvo
custod'
donec
aliud
à
vobis
inde
habeo
in
mandatum
.
Retorn
of
Liberate
.
VIrtute
istius
brevis
(
tali
die
&
anno
)
liberavi
L.
S.
infranominat'
manerium
infraspec'
cum
prat'
tenend.
sibi
&
assignat'
suis
ut
liberum
tenementum
suum
quousque
sibi
de
debito
infrascript'
una
cum
damnis
misis
&
expensis
quae
in
hac
parte
rationabilit'
sustinuit
plenar'
satisfact'
fuerit
prout
istud
breve
exigit
&
requirit
,
Lib.
Intr.
598.
Retorn
of
a
Praemunire
,
vid.
Dalt
.
c.
70.
Retorn'
de
Recogn'
extra
Canc.
Dalt
.
c.
81.
Retorn'
de
Supplicavit
,
id
.
ibid.
Presidents
of
Retorns
extra
Scaccarium
,
vide
Dalt
.
c.
82.
W.
Wilkinson
.
The
Form
of
a
Bond
for
Appearance
.
NOverint
universi
per
praesentes
nos
A.
B.
de
C.
in
Com.
Warw.
gen'
E.
F.
de
L.
&c.
&
H.
T.
de
,
&c.
teneri
&
firmit
.
obligari
A.
B.
Mil.
Vic.
Com.
praedict.
in
quadragint
.
libris
bonae
&
legalis
monetae
,
&c.
solvend
.
eidem
Vicecomiti
aut
suo
certo
Attornat'
,
&c.
(
as
in
other
double
Bonds
.
)
COnditio
istius
Obligationis
talis
est
,
Quod
si
supra
Obligatus
A.
B.
compareat
personalit'
coram
dom'
Rege
(
or
,
coram
Justiciariis
dom'
Regis
)
apud
Westm
'
(
à
die
Paschae
in
quindecim
dies
)
ad
respond
.
K.
W.
de
placito
debiti
(
transgress
.
ac
etiam
billae
,
&c.
detentionis
,
&c.
)
[
as
in
the
Writ
]
quod
tunc
praesens
Obligatio
vacua
&
pro
nulla
habeatur
,
alioquin
in
suo
robore
permanere
&
vigore
.
A
Condition
to
pass
an
Account
,
to
procure
a
Discharge
for
a
Sheriff
.
THe
Condition
of
,
&c.
That
if
the
aboveo
bounden
T.
F.
his
Heirs
,
Executors
and
Administrators
,
do
make
a
true
and
perfect
Account
of
and
for
the
above-named
T.
T.
his
Heirs
and
Executors
,
in
the
Exchequer
of
our
Sovereign
Lord
the
King
,
of
,
for
and
upon
all
Issues
,
Charges
,
Sum
and
Sums
,
which
be
or
shall
be
charged
or
demanded
,
of
or
upon
the
said
T.
as
late
Sheriff
of
the
said
County
;
and
do
get
and
procure
a
sufficient
Quietus
est
thereof
for
the
said
T.
T.
his
Heirs
and
Executors
.
And
moreover
,
do
well
and
truly
discharge
,
save
and
keep
harmless
the
said
T.
T.
his
Heirs
,
&c.
against
our
said
Sovereign
Lord
the
King
,
his
Heirs
and
Successors
,
and
all
other
person
and
persons
,
of
,
for
and
concerning
the
said
Office
of
Sheriff
,
and
all
the
Receipts
and
Charges
thereof
;
That
then
,
&c.
A
Condition
for
a
Bayliff
of
an
Hundred
to
enter
into
to
the
Sheriff
,
vid.
Presidents
in
Dalt
.
c.
115.
A
Condition
for
a
Gaoler
to
enter
into
,
for
the
safe
keeping
of
his
Prisoner
,
vid.
Dalt
.
ibid.