UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE PRACTICE OF THE AND UNDER-SHERIFF; THE POWERS AND DUTIES OF THOSE OFFICES. THE MANNER OF APPOINTING THE HIGH SHERIFF, UNDER-SHERIFF, AND THEIR DEPUTIES. THE ELECTIONS OF THE SHERIFFS OF LONDON AND MIDDLESEX, WITH THE BVE-LA.VS OF THE CITY RELATING THERETO. TIIE NATURE OF ACTIONS BY AND AGAINST SHERIFFS. INCLUDING THE MODERN DETERMINATIONS, AND PRECEDENTS OF RETURNS TO WRITS, &c. ALSO, OF THE iBfftce of Coroner ; THE MODE OF HIS APPOINTMENT, THE POWERS AND DUTIES OF TAKIi\G , INQUISITIONS, AND MODE OF HOLDING COURTS, &C, TO WHICH ARE ADDED COPIOUS APPENDIXES OF USEFUL PRECEDENTS. By JOHN IMPEY, In , AUTHOR OF THE PRACTICE OF THE COURTS OF KINGS BENCH AND COMMON PLEAS, AND OF THE MODERN PLEADER. Sixth Edition, newly Arranged and Corrected, with Reference to the Modern Cases and Recent Statutes, By H. JEREMY, Barrister. LONDON: J. & W. T. CLARKE, LAW -BOOKSELLERS AND PUBLISHERS, PORTUGAL-STREET, LINCOLN'S INN. 1835. T \S3S Printed liy Jnnic'» & J.uke G. Hansard 6«; Sons, neat L'ntola's.Inn Fields. ADVERTISEMENT TO THE SIXTH EDITION. The previous Editions of Mr. Impey's valuable Work having, from the continual increase of modern decisions and statutory alterations of the law, ex- tended the original Work to an inconvenient bulk, and the additions to it, by being introduced in the shape of notes, having in some degree disconnected the points, and rendered the Work of less easy refer- ence, it has been thought advisable, in preparing the present Edition, to blend the notes and additional authorities with the original text, and to present, as nearly as may be, at one view, the entire body of law upon each particular subject. The reference to the cases being also withdrawn from the text, will, it is thought, less distract the attention of the reader. In other respects the Editor has endeavoured care- fully to notice every recent alteration, and insert every modern decision, and trusts that in so far as he has ventured to alter the former arrangement of the Work, it will not be found in any way less practically useful. 4, Inner Temple Lane, May 1831. *^614G2 THE PRACTICE OF THE OFFICE OF SHERIFF. Of the Division of E?igland into Counties. nPHE civil division of England is into counties, of those civil division of ^ counties into hundreds, of those hundreds into tithings England into ,-,^, .,,...' ., .1 i counties, which or towns. Which division, as it now stands, seems to ^^^^ -^^^ ^-^^ owe its original to King Alfred (a) ; who, to prevent the to Alfred, who rapines and disorders which formerly prevailed in the j|'^]|j^'^^^^'^ realm, instituted tithings; so 'called from the Saxon, ^''""Ss- because ten freeholders, with their families, composed one. These all dwelt together, and were sureties or free pledges, to the king, for the good behaviour of each other, and if any offence was committed in their district, they were bound to have the offender forthcoming (6). And therefore, anciently, no man was suffered to abide in Eng- land above forty days, unless he were inrolled in some tithing or decennaiy (c). One of the principal inhabit- Tithingman the ants of the tithing being annually appointed to preside f^^^riown^bJc. over the rest, called the tithing-man, the headborough, and in some counties the borsholder, or boroughsealder, being supposed the discreetest man in the borough, town, or tithing {d). Tithings, towns, or vills, are of the same signification ^'"^'^''^^'^'^ °^ in law, and are said to have had, each of them, originally, "^ '"^'' a church, and celebration of divine service, sacraments (a) Camd. 15G. (f) Miri. c. 1. s. 2. (6) Flet. 1. 47. ((/) Finch, L. 8, Town or vill, definition of. City. Borough. Hamlets. 14 E. 1. Entire vills, Demi-vills. These towns contained but one parish, and one tithing-, but now divided into several. Hundred, what ; governed by a high constable. Hundreds called wapentakes. Subdivisions of hundreds intro- duced by ^4 //re J. DIVISION OF ENGLAND, &C. and burials (e). Though that seems to be rather an ecclesiastical than a civil distinction. The word town, or vill, is indeed, by the alteration of time and language, now become a general term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop : and though the bishopric be dissolved, as at Westminster, yet still it remaineth a city {f). A borough is now understood to be a town, either corporate or not, that sendeth burgesses to Parliament. Other towns there are, to the number. Sir Ed. Coke says, of 8,803, which are neither cities nor boroughs. Some of wdiich have the privileges of markets, and others not, but both are equally towns in law. To several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of Exeter ; which makes frequent mention of entire-vills, demi-vills, and hamlets. Entire vills, Sjjelman conjectures (g) to have consisted of ten freemen, or frank-pledges; demi-vills of five, and hamlets of less than five. These little collec- tions of houses are sometimes under the same adminis- tration as the town itself, sometimes governed by sepa- rate officers ; in which last case they are, to some purposes in law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one parish, and one tithing ; though many of them now, by the increase of the inhabitants, are divided into several parishes and tithings, and sometimes, where there is but one parish, there are two or more vills or tithings. As ten families of freeholders made up a town or tith- ing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by a high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes (A). The subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred : the institution of hundreds themselves he rather introduced than in- vented ; for they seem to have obtained in Denmark (i) ; (e) 1 Inst. 115. (/■) Co. Litt. 100. IVC. IGI. (V) Gloss. 274. (h) Seld. in Fortes, c. 24. (/) Sold. tit. Hon. 2. 3, 5. DIVISION or ENGLAND, &.C. and we find that in Prance a regulation of this sort was made above two hundred years before ; set on foot by Clotharius and Childeberty with a view of obhging each district to answer for the robberies committed in its own division. These divisions were, in that country, as well militaiy as civil ; and each contained a hundred freemen, who were subject to an officer called the centenarius, who, in the middle age, was an officer that had the government or command, with the administration of justice, in a vil- lage or division, containing a hundred freemen ; a num- ber of which centenarii were under the jurisdiction and command of a superior officer called the count, or comes (k). An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word, signifying a di- vision ; but a county, comitatus, is plainly derived from comes, the count of the Franks ; that is, the earl or alder- man (as the Saxons called him) of the shire, to w^hom the government of it w^as intrusted. This he usually exer- cised by his deputy, still called, in Latin, vice-comes, and in English, the sheriff, shrieve, or shire-reeve, signifying the officer of the shire ; upon whom, by process of time, the civil administration of it is now totally devolved. In some counties there is an intermediate division between the shires and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds a piece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire- reeve. Where a county is divided into three of those intermediate jurisdictions, they are called trithings (Z), which were anciently governed by a tri thing-reeve. These trithings still subsist in the county of Yorh, where, by an easy corruption, they are denominated ridings ; the north, the east, and the west ridings. The number of counties in England and Wales has been different at dif- ferent times : at present there are forty in England and twelve in Wcdes {m). The reason why those counties were divided seems to be, for the better government and more easy administra- tion of justice: and for the better execution of the laws in the several counties, sheriffs are appointed ; and, by Dalton, there is no part of the kingdom that lieth not in some county. Of tliese fifty-two counties, there are Centenarius was an officer who had the govern- ment of a village containing 100 freemen. A number of which Cente- narii were under the command of the count. Shire and county, of what composed and whence derived. How governed. Lathes and rapes. Trithings still subsist in York- shire. Number of counties. Were divided for the better administration of justice. {k) Mont. Sp. L. 17. 30. (/)L1. ofEdw. Conf. c. 34. (»)■) 5 Co. 100. /). B 2 ^ Counties pala- tine, three. Chief governors heretofore sent out all writs in their name. Why privilege granted. Power abriilged by H. 8. Isle of Ely royal franchise. Counties corporate. DIVISION OF ENGLAND, &.C. three of special note, Chester, Durham, and Lancaster, wliic'i are therefore termed counties palatine. The two former are such by prescription or mimeraorial custom, or at least as old as the Norman conquest (w) ; the latter was created by Ed. 3, in favour of Henry Plantagenet, then duke o^ Lancaster {o). The chief governors of these counties palatine, hereto- fore, by a special charter from the king, sent out all writs in their own names; and, touching justice, did all things as absolutely as the king himself in other counties ; only acknowledging him their superior and governor ; whence palatine, a palatio, because the owners of them hdid jura regalia as fully as the king hath in his palace. These palatine privileges were probably granted, to the counties of Chester and Durham, because tliey bordered on enemies countries, Wales and Scotland, in order that the owners, being encouraged by so large an authority, miglit be the more watchful in its defence, and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions; and upon this account also there were formerly two other counties palatine, Pem- brokeshire and Hexamshire, the latter was united with Northumberland; but these were abolished by Parlia- ment; the former in 27 H. 8. the latter in 14 El. Like- wise their power was much abridged, the reason for their continuance in a manner ceasing ; though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them ; of these three, the county of Durham is now the only one remaining in the hands of a subject {p). The Isle of Ely is not a county palatine, but only a royal franchise : the bishop having, by grant of King Henry the first, jura regalia within the Isle of Ely ; whereby he exercises a jurisdiction over all causes as well criminal as civil {q). There are also counties corporate; which are certain cities and towns, some \Anth more, some vn\h less territory annexed to them; to which, out of special grace and favour, the kings of England have granted to be counties of them- selves, and not to be comprised in any other county, but to be governed by their oicn s//er(^s, and other magistrates, (n) Seia. tit. Hon. 2. .'5. 8. (o) 4 Inst. 204. (;») 4 Inst. 20.5. 1 Vent. 155. isr. (?) 4 Inst. 220. OF THE NAME, SCC. OF .SHERIFF. 5 SO that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, and many others. Of the Name and Antiquity of the Sheriff. T T appears from several authorities, that long before the Name and ■*■ time of the Romans, the sheriff was the deputy of the antiquity. consul, and called vice-consul] they calling that consulatum which we call comitatus{r). And in the middle age we find the word consul used for comes, count; and proconsul for viscount. When the earls left their custodies, then was the custody of counties committed to viscounts, and they are thereupon called vice comites, quia vices comitis supplent. JBracton (s) says, that as comes is derived from comi- tatus, so consul is derived from consulendo : and in the laws of Edward the Confessor, mention is made of vice comites and vice consules. The word sheriff or shire-reve is derived from two Saxon Definition of the words, scire, province, or shire ; or rather from sciran, to word shentf. divide, and geresa, grave; Reve or prefect, being deno- minated from the first division of the kingdom into counties. Marculphus saith, this office is judiciaria dignitas : Lampridius, that it is officium digjiitatis : Fortescue, '^' quod vice comes est nohilis officiarius;" and in the Laws of the Confessor, " Verum quod modo vocatur comitatus, " olim apud Britones temporihus Romanorum in regno "• isto BritannicE vocahatur consulatus, et qui modo " vocantur vice comites, tunc temjioris vice consules vo- " cahantur; ille vero dicebatur viceconsvl, qui conside *' ahsente ipsius vices supplehat injure et in for o " {t). Lord Coke says, that shireve is a word compounded of Of Lord Coke. two Saxon words, viz. shire, and reve satrapia, or co- mitatus, and comes of the Saxon verb shiram, (i. e.) partiri, for that the whole realm is parted and divided into shires; and reve m prfpfectus or pi-(ppositus; so as shireve is the reve of the shire, 2^r(^f6ctus satrapice provincice, or comitatus. And he is called prcpfectus. (?•) Co. Litt, 168. Seld. Jan. 53. 73. Mirr. 9. 1 Roil. R. 237. {s) Lib. 1. c. 8. B (<) Co. Litt. 1G8. a. Lamb. 129. Fort. Co 24. Of Blackstone. Called in Latin vice-comes. or THE NAME, SCC. OF SHERIFF. because he is the chief officer to the king, within the shire, for the words of his patent be, commisimus vohis custoclium comitatus nostri cle, &c. And he hath a three- fold custody, viz. vitce justitice, for no suit begins, and no process is served but by the sheriff; also, he is to return indifferent juries for the trial of men's lives, liberties, lands, goods, &c. Secondly, vita legis, he is after long- suits, and chargeable to make execution, which is the life and fruit of the law. Thirdly, vite business ot comes, yet he is entirely independent of, and not subject "^'"^ '^^""'^y' to the e«7'/; the kif}(/ hy his letters patent committing cus- todiam comitatus to the sheriff, and him alone. He is Bailiff to the considered in our books as bailiff to the crown ; and his crown. county, of which he hath the care, and in w^hich he is to execute the king's w^'its, is called his bailiwick. The sheriff is a patent officer of the crown, and is constituted the king's bailiff to gather his rents ; and therefore, after the said constitution, the first thing is to prefix him a day to account, and there were two days prefixed, one after the utas of Easter, and the other after the utas of Michaelmas, and these w^ere called his proffers, because he then did proffer the king's rents ; they gave him two times in a year, because the rents were generally payable half-yearly («). The sheriff is an ancient officer, and a minister of the An ancient king's courts of law and justice; and is to attend at those o^cer, &c. courts, and execute their process, and make due returns thereof; and he is to answer for the misdemeanors of his Xo answer for bailiffs, who are his servants, and under his government (Z>), his bailiiis. or the non-performance of any contract entered into by his deputy. As where an officer had taken possession of goods, and on an extent coming in, had agreed with the creditor to deliver to him a certain portion in considera- tion of his satisfying the debt of the crown, which the latter accordingly did, and before such delivery the goods were rescued, held that the sheriff vv^as liable (c). But he is not liable for misconduct induced by the party himself, and of which he has no knowledge (cZ). All hundreds that were not granted in fee by the crown Hundreds, before the time of Ed. 3. are joined to the office of joined to the she7-iff(e). office, (a) Dalt.c.l. 7 Co. 33. Gilb.Ex. 146. (b) 2 T, R. 154. Underhill v. Wilson, 6 Bing. 697. (c) Thomas v, Pearce, 5 Pri. 578- (d) Crowder v. Lowe, 8 B. & Cr. 598. (e) Ray. 361, 362. B 4 n Shall have, the custody of all gaols in their counties. lU 11. 7. c. 10. How chosen originally. Sheriffs hereditary. Gothic consti- tution, judges elected by the people. Election thus. HOW ORIGINALLY CHOSEN. Every sheriff within every county of this reahii shall have the custody, rule, keeping and charge of every the king's common gaols in the county where he is sheriff except the Marshalsea and King's Bench prison in Surrey, and the Fleet. How originally chosen. SHERIFFS were onginally chosen by the people in ^ iheir folkmote or county court {e). And Lord Coke says, they were chosen the same as the coroner (/). In con- firaiation of which it was ordained, by 28 Fd. 1. c. 38, " 'Ihat the people should have election of their sheriff in " every shire where the shrievalty is not of fee, if they list." For, anciently, in some counties, the sheriffs were here- ditary, as in Scotland, till the 20 G. 2. c. 43. and still con- tinue in the county of Westmoreland to this day (g) ; and it is said Cumberland is hereditary by a particular charter of King John. The city of London have also the inherit- ance of the shrievalty of Middlesex vested in their body by charter (A), upon condition of paying 300 Z. a-year to the king's exchequer ; in consequence of w'hich they have always elected two sheriffs, although they constitute together but one officer ; and if one die, the other cannot act until another be elected (i). The reason of these popular elections is assigned in the same statute, c. 13. " That the commons might choose such as would not be " a burthen to them." And herein appears a strong tmce of the democratical part of our constitution; in which form of government it is an indispensable requisite that the people should choose their own magistrates {k). This election was in all proba- bility not absolutely vested in the commons, but required the royal approbation. In the Gothic constitution, the judges of their county courts (whose office is executed by our sheriff) w^ere elected by the people, but confirmed by the king : and the form of their election was thus ma- naoed : the people, or incolce territorii, chose twelve electors, and they nominated three persons ex quihus rex unum conjirmahatil). But with us in England, these (e) Seld. tit. Hon. 610. (/) Pref. 3 Rep. 4 Inst. 174. 558. (g) Harg. Co. Litt. 32G. (A) 3 Rep. 72. ( i ) 4 Bac. Abr. 447. (^c) Mont. Sp. L. b. 2. c. 2. (7) Stiern. do Jur. Goth. I. C.3. SHERIFFS HOW CHOSEN. 9 popular elections, growing tumultuous, were put an end Popular elec- to by 9 Ed. 2. st. 2, which enacted, lo "andlheriffs'^ " That the sheriff should from thenceforth be assigned by assigned by the " the chancellor, treasurer, barons of the exchequer, and chancellor, &c. " by the justices, and in the absence of the chancellor, by " the treasurer, barons, and justices," as being persons in whom the same trust might with confidence be reposed. By 14 Ed. 3. c. 7. 23 H. 6. c. 8, and 21 H. 8. c. 20, " The chancellor, treasurer, 'president of the Icings council, *' chief justices, ayid chiej' haron, are to make this election ; " and that on the morrow of All Souls, in the Exchequer." And the king's letters patent appointing the new sheriffs used commonly to bear date the sixth of November. The Stat, of Cambridge ordains, " That the chancellor, treasurer, keeper of the privy seal, *' steward of the king's house, the king's chamberlain, clerk " of the rolls, the justices of the one bench and the other, " barons of the exchequer, and all other that shall be called " to ordain, name, or make justices of the peace, sheriffs, " and other officers of the king, shall be sworn to act indif- " ferently, and to name no man that sueth to be put in office, " but such only as they shall judge to be the best and most " sufficient." Since the time of H. 6. the custom hath been, and now is, " That all the judges, together with the other great " officers, meet in the Exchequer-chamber on the morrow " of All Souls yearly, (which day is now altered to the " morrow of St. Martin, by the last act for abbreviating *' Michaelmas term,) and then and there propose three per- " sons to the king, who afterwards appoints one of them to " be the sheriff," by marking each name with the prick of a pin ; and for that reason this particular election is generally termed, ■pricking for sheriffs. For the particulars of the ceremony used at the nomi- nation in the Exchequer Chamber, see Mr. Christians note to 1 Bl. Com. 341. ed. 15. The sheriffs in eveiy of the shires of Wales shall be sheriffs of nominated yearly bg the lord president and council, and Wales, how justices of Wales, who are to certify the names to the 34^5^"35 h, i lords of the king's council, that the khig may appoint. c. 26. s. 65. The chancellor, &c. to make election on the monow of All Souls. Letters patent. 12 Ed. 4. c. 1. 12 K. 2. c. 2. Chancellor, &c. to be sworn to act indifferently, and to name such only as they shall judge best. Custom of choosing since H. 6. and now. 24 G. s. 12. 2. c. 48. 10 (Ai.stom of pro- jiosing three per- sons borrowed. Founded upon some statute. The king ap- pointed a sheriff, which office he refused to take. The judges' opinion. Queen appointed sheriffs ; SHERIFFS HOW CHOSEN. This custom of the twelve judges proposing three per- sons seems borrowed from the Gothic constitution before mentioned ; with this difference, that among the Goths, twelve nominors were first elected by the people them- selves ; which usage of ours was probably founded upon some statute, though not now to be found among our printed laws. First, because it is materially different fi'om the direction of all the statutes before mentioned ; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute ; and also, because a statute is expressly referred to in the record which Coke tells us (/w) he tran- scribed from the council book of 3 Mar. 34 H. G. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, w^hich office he refused to take upon him : whereupon the opi- nion of the judges were taken, what should be done in this behalf. And the two chief justices, Fortescue and Prisot, delivered the unanimous opinion of them all, " that the king did an error when he made a person " sheriff that was not chosen and presented to him ac- " cording to the statute ; that the person refusing was " liable to no fine for disobedience, as if he had been one " of the three persons chosen according to the tenor of " the statute, and that some other thrifty man be in- " treated to occupy the office for this year ; and that the " next year, to eschew such inconveniences, the order of " the statute in this behalf made be observed." But notwithstanding this unanimous resolution, and the 34 & 3.5 H. 8. c. 26. s. 61. which expressly recognizes this to be the law of the land, some writers have affirmed, that the king by his prerogative may name whom he pleases to be sheriff, whether chosen by the judges or not. This is grounded on a very particular case in the 5 Eliz., and reported in Dyer, 225. when by reason of the plague, there was no Michaelmas term kept at Westminster ; so that the judges could not meet there m eras. anim. to nomi- nate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing, for the most part, one of two remaining in the last year's list. And this case is the only authority in our books Jpr making these extraordinary sheriffs. The reporter (»)) 2 Insl. J59. Fort, dc Laud. c. 24. WHO ARE QUALIFIED OR EXExMPT. adds, that it was held, " that the queen by her prerogative " might make a sheriff without the election of the judges, " non obstante aliquo statuto in contrarium;' but the doctrine of non obstante, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the Revolution, when King James abdicated the king- dom. However, it must be acknowledged that the prac- tice of occasionally naming what are called pocAe^ sheriff's, by the sole authority of the crown, hath uniformly con- tinued to the reign of his present Majesty, in which few (if any) instances have occurred. It hath been adjudged that the office of sheriff is an entire thing, therefore the king cannot apportion or divide it, (although he make or appoint one to be sheriff, durante beneplacito,) that is, he cannot determine it in part, as for one town, or one hundred; neither can he abridge the sheriff of any thing incident to or belonging to his office (w). The office is entire, and so it must continue in that en- tirety for the whole county, without any fraction or dimi- nution (except it be by an act of parliament, or that the king shall make some town, Sfc. a county of itself, and shall appoint there a sheriff, and all things belonging to a sheriff, within the same town, ^c. Neither can the office of a sheriff be detennined, nor any part thereof, without and until a new sheriff be made for the execution and administration of justice, (except it be by his own death,) for on the demise of the king, " he may hold his office six " months, unless sooner displaced by the successor.'" Nor does it determine by becoming a peer on his father's death (o) ; though the dignity descends in time of par- liament, so that he ought to attend parliament as a peer. 11 and held she might by her prerogative. The practice of naming a pocket sheriff hath con- tinued to this day. The office of sheriff cannot be apportioned or divided. It is entire, and so must con- tinue, except, &c. Cannot be de- termined, until a new sheriff be made, except by death of the sheriff; nor de- mise of the king. 1 Ann. St. 1. c. 8. Nor by becom- ing a peer. Who are qualified or exempt from serving. TT is provided, by several acts of parliament, that no man shall be sheriff in any county except he have suf- ficient lands within the same county where he shall be sheriff whereof to answer the king and his people, in case that any person shall complain against him : and that no one that is steward or bailiff to a great lord, shall be made a sheriff (except he be put forth of semce) (p). (a) Davies, 60. 4 Co. 3.3. Dalt. 6. (o) Cro. tl. 12. pi. 3. 25 El, C. B. Mori'iani's case. (/)) Dalt. G. No man shall be sheriff ex- cept he have lands, &c. to answer the king, &c. No stevvard or bailiff of a great lord. 9 Ed. 2. 5 Ed. 3. c. 4. 4 Ed. 3. c. 9. 5 Ed. 3, c. 4. 12 No man ex- empt, but by act of parlia- ment, or letters patent. Prisoners. Persons dis- abled by judg- ment. Militia officers. 2 G. 3. c. 20. Protestant dis- senters. 1 W. & M. St. l.ch.18. Barristers and attornies. Person having served the office. 1 Rich. 2. c. 11. Refusing to take the office, &c. how pu- nishable. He must give security in the court of Ex- chequer. PERSONS QUALIFIED OR EXEMPT. The king having an interest in every subject, and a right to his service, it is holden, that no man can be ex- empt from the office of sheriff, but by act of parUament, or letters patent (5'). Persons qualified or exempt. A prisoner for debt is exempt from sei-ving the office of sheriff (r). Also one disabled by a judgment in law is excused (.9). But if he may remove the disability, as in case of excommunication, he shall not take advantage of it. A person, during the time he is acting as a miUtia officer, shall not be obliged to serve the office of sheriff. Protestant dissenters, who are exempt by the Toleration Act from the obligation of complying with the requisition of the Corporation Act, and who can plead their non-com- pliance as a reasonable and sufficient excuse, are not compellable to serve the office of sheriff, nor, of course, to pay any fine for refusal (0' Barristers and practising attornies are exempt (m). No person who has been sheriff of a county for a ;^ear shall be chosen again within three years next ensuing. But this does not apply to cases of cities or towns cor- porate, though counties within themselves {x). Formerly, if a person refused to take upon him the office of sheriff, he was punished in the Star Chamber; but now if he refuses to take the office, or the oaths, or officiates as sheriff before he has qualified himself, he may be proceeded against by information in the King's Bench (^/). How to procure the Patent for the new Sheriff. Writ of Discharge of the old Sheriff, and placing the new Sheriff in Office. T"HE first thing that every new elected sheriff must do ■^ at the entrance into his office, is, that before he re- ceives his patent, and before he exercises any part of his office, he must put in sufficient sureties, by himself, or by (9) Sav. 43. 9 Co. 46. b. 1 Ld. Ray. 29. (r) 2 Mod. 299. (s) I Salk. lf.8. (t) Harrison r. Evans, 2 Burn's Ec> L. 185. (u) Mayor of Norwich v. Berry, 4 Burr. 2109. (a) R. V. Haythorne, 5 B. & Cr. 429 n. (y) Carth, 307. 3 Le?. 116- HOW TO PROCURE HIS PATENT, &C. 13 his deputy or deputies, into the Exchequer, and there enter into recognizance in such sum, and upon such con- ditions, as the lord treasurer and the barons of the Exche- 2 & 3 Ed. 6, quer shall think meet. But he need not be present. *^- '^*- This is done by an application to one of the clerks in court in the Exchequer, who will draw up such recog- nizance, with condition for payment of his proffers and accounts, and the appointment of a sufficient und r- sheriff for execution of process ; which recognizance is to be taken to the chief, or any one of the barons, with two sureties, who there enter into the recognizances of 200 /. each. After the recognizance is entered into, the clerk gives a note to one of the six clerks of the court of Chan- cery, wherein he certifies that the sheriff hath entered into the usual recognizance. The same is to be taken to the deputy of the six clerks, at the Six Clerks Office, who will make out the patent of office, the writ of discharge to the old sheriff, and the patent of assistance, with a writ of dedimus potestatem directed to proper commissioners (generally a knight or two clergymen, or two justices of peace with two others) to take the oath of office annexed '/v^/y^^^-tlt^ .^^C^ thereto, and also of allegiance and abjuration pursuant to yv^/i/?*.^ ^ ^/t^^^ the stat. 1 Geo. 1 : when done, the commissioners must i G. i.e. \%. ^ '^ certify the same into the court of Chancery, which is filed in the Petty-bag office in the Rolls yard, which certificate is indorsed on the dedimus, as follows : By virtue of this writ to us directed, (to wit), on the Return of day of in the year within mentioned, the within dedimus. named A. B. esq. sheriff of the county of took the oath of office, as well as the several other oaths in the schedule to this writ annexed, in our presence, as within he is required to do. The answer of j^ j^ /"Commissioners. By the 3 Geo. 1. it is enacted, that instead of the oath c. 15. s 18. usually administered, the following oath shall be taken by them, and each of them respectively, (excepting the she- riffs of the several counties in Wales, and of the county palatine of Chester,) viz. " I, A. B. do swear, that I will well and truly serve the Oath of the " king's majesty in the office of sheriff of the county of high sheriflF. " and promote his majesty's profit in all things that be- " long to my office, as far as I legally can or may ; I will " truly preserve the king's rights, and all that belongeth to It HOW TO PROCURE HIS PATENT, 8CC. " the crown ; I will not assent to decrease, lessen, or conceal " the king's rights, or the rights of his franchises : and when- " soever I shall have knowledge that the rights of the " crown are concealed or withdrawn, be it in lands, rents, " franchises, suits or services, or in any other matter or thing, " I will do my utmost to make them be restored to the *< crown again ; and if I may not do it myself, I will certify " and inform the king thereof, or some of his judges ; I will " not respite or delay to levy the king's debts for any gift, " promise, reward or favour, where I may raise the same " without grievance to the debtors ; I will do right as well " to poor as to rich, in all things belonging to my office ; " I will do no wrong to any man for any gift, reward or " promise, nor for favour or hatred ; I will disturb no man's " right, and will truly and faithfully acquit at the Exchequer " all those of whom I shall receive any debts or duties be- " longing to the crown ; I will take nothing whereby the " king may lose, or whereby his right may be disturbed, " injured or delayed ; I will truly return, and trvdy serve all " the king's writs, according to the best of my skill and " knowledge ; I will take no bailiffs into my service but " such as I will answer for, and I will cause each of them " to take such oaths as I do, in what belongeth to their " business and occupation ; I will truly set and return rea- " sonable and due issues of them that be within my baili- " wick, according to their estates and circumstances, and " make due panels of persons able and sufficient, and not " suspected or procured, as is appointed by the statutes of " this realm; I have not sold or let to farm, or contracted for, " nor have I granted or promised for reward or benefit, nor " will I sell or let to farm, nor contract for, or grant forre- *' ward or benefit, by myself, or any other person for me, or for " my use, directly or indirectly, my sheriffwick or any baili- " wick thereof, or any office belonging thereunto, or the " profits of the same, to any person or persons whatsoever; " I will truly and diligently execute the good laws and sta- " tutes of this realm, and in all things well and truly behave " myself in my office for the honour of the king, and the "good of his subjects, and discharge the same according " to the best of my skill and power. So help me God." Wliich oath is to be administered and given by such commissioners as shall be named and authorized to admi- nister the foregoing oath to the high sheriff in the county, when and so often as a commission or dedimus shall be sued forth of the proper court for that purpose, or by the barons of the said court, or one of them, when the said slieriff desires to be sworn in town. HOW TO PROCURE IIIS PATENT, &C. The sheriff shall, within six calendar months after his election, take and subscribe the oath prescribed by 10 Geo. 4. c. 7. (instead of the former oaths of allegiance, supremacy and abjuration,) in one of the courts at West- minster, or at the geyieral or quarter session of the jjeace where he shall be or reside, between the hours of nine and twelve in the forenoon, and no other, and shall make the declaration substituted in lieu of the former sacra- mental test imposed by 25 Car. 2. c. 2. By the 9 Geo. 4. c. 17. a declaration also is substituted in lieu of the sacramental test; and the 10 Geo. 4. c. 7. enabling Catholics to sit in Parliament, and hold offices, &c., prescribes an oath instead of the oaths of allegiance, supremacy and abjuration. The sheriffs of Wales and Chester shall not be obliged to take the said oath first mentioned, but shall take the accustomed oath as formerly, except the words following, viz. : " Ye shall be dwelling in your own proper person within " your bailiwick for the time ye shall continue in the same " office, except ye be otherwise licensed by the king :" which words shall hereafter be left out. Nor is that act to extend to the sheriffs of London and Middlesex, the county palatine of Durham, the county of Westmoreland, or to the sheriffs of any citj/ or toivn being a county of itself, as to their placing in or disposing of any of the offices of their under-sheriffs, county clerks, bailiff's, or other offices, or their continuance therein. After the sheriff hath taken the oaths before mentioned, then on the writ of discharge being delivered to his prec?e- cessor, the old sheriff or his under-sheriff", (or at or before the first county court to be kept by the new sheriff',) the new sheriff must take over from the old sheriff all his pri- soners, (which are in the gaol by their names,) and all his ivrits precisely by view, and by indenture to be made between the old and new sheriff ; in which indenture all the causes which the old sheriff hath against every pri- soner must be set forth, and delivered, at the peril of the old sheriff, or else the new sheriff need not take any notice of any thing omitted and left out of the indenture ; for he is not chargeable with it, but the old sheriff" {z). l.> Sherift" to take the oath pre- scribed by 10 Geo. 4. c. 7. in one of the courts at W. or the quarter session. 1 Geo. 1. s. 2. c. 13. s. i. ; 2 Geo. 2. c. 31, s. 3, 4. -,9 Geo. 2. c. 26. s. 3. 9 Geo. 4. c. 17, & 10 Geo. 4. C.7. To make the declaration di- rected by 10 Geo. 4. c. 7. Sheriffs of Wales and Chester not obliged to take the oaths by 3 Geo. 1. c. 15. s. 22. Not to extend to Lon ;oii and Middlesex, Durham, Westmoreland, and other cities. s. 23. He must take by indenture the prisoners and writs. (i) 3 Co. 72. Weslbv's case, Dall. U. 10 When tlie aniioiU sheriff discharged. Writs to be turned over to the succeeding sheriff by in- denture. 20 Geo. 2. c. 37. s. 1. Not bound to receive prison- ers, but at the gaol. He must read his patent at first county court, and appoint county clerk, and four deputies to make replevins. 1 & 2 P. & M. c. 12. Sheriff cannot be elected a knight of the shire for that county he is sheriff of, nor act as a justice of peace. HOW TO PROCURE HIS PATKNT, &C. The ancient sheriff is not discharged, nor tlie new sheriff' charged, till three things are done, viz. the patent to the new sheriff, the writ of discharge to the old sheriff, and the delivery of the prisoners by indenture to the new sheriff (a). " All sheriffs shall, at the expiration of their office, turn " over to the succeeding sheriff, by indenture and schedule, " all such writs and process as remain in their hands un- " executed, who shall execute and return the same ; and in " case any sheriff neglect to turn over such process, he shall " be liable to make satisfaction by damage and costs to the " party aggrieved." The new sheriff is not bound to receive the prisoners from the old sheriff, but only at the gaol, and in no other place ; and yet, if the old sheriff shall deliver his prisoners to his successor when he is chosen, who receives them out of the gaol, the old sheriff' shall be discharged by this delivery (b). The new sheriff, at the first county court which shall be after his election, and the discharge of the old sheriff, must read, or cause to be read, his jJatent and torit of assist- ance, and also nominate his under-sheriff, (or county clerk,) and depute, appoint, and proclaim four deputies (at the least) in that county, to make replevins for the ease of the county; which deputies ought to dwell not past twelve miles distant one from another, in every quar- ter of the county, one to grant replevins in the sheriff's name, and to make deliverance of distresses, when need shall require. And they shall, in the sheriff's name, make replevins, as the sheriff himself may do. And the sheriff, for every month that he shall lack such deputies, shall forfeit bh, and within two months next after he hath received his patent, he may appoint such deputies, &c. (c). It is holden that a sheriff cannot be elected knight of the shire for that county for which he is sheriff (c?). And by statute 1 Marl. st. 2. c. 8. s. 2. although a sheriff is by virtue of his office a conservator of the peace^ yet it is enacted, " That no person having the office of sheriff of any " county shall exercise the office o^ justice of the peace in " in any county where he shall be sheriff during the time (a) Cro. El. 366. Wesly r. Skin- ner, Noy, 51. (6) Ualt. 16. (c) Dalt. 19. {d) 4 Inst. 48. Lutvv. R. 326. now TO PROCURE HIS PATENT, &C. 17 *' lie shall use the office of sheriff; and all and every acts *' to be done by any sheriff, by authority of any comniis- *' sion of the peace, during the time of his sheriffwick, shall " be void. But when he is out of office, he may act by " the force of the same commission (e)." By the 14 E. 3. it is enacted, st. i. c. 7. " That no sheriff, &c. shall tarry or abide in his office How long to " above one year, on pain to forfeit !200 /. yearly, as long as continue in his " he occupieth the office ; and that every pardon for such L^'o -• "offence or forfeiture shall be void; and letters patent & 42 e. S.'c.'s- " made to occupy such office above one year shall be 23 H. G. c. 3. " void, any words or clause of non obstante put into such " patent notwithstanding ; and that whosoever shall pre- " sume to take upon himself the office of a sheriff above one *' year, by force of such letters patent, shall be disabled " from ever after to be sheriff within any county of " England" If new sheriff If a new sheriff hath not his patent ready, and does not patent ready • take the oaths, See. every old sheriff may occupy his office old sheriff to' during the term of St. Michael and Hilary, (after the hold over. year tiiat their office is ended,) miless he be lawfully dis- J^ p' ^' ^' |* charged (/). 23 PI. G. c. 38. But the sheriffs and under-sheriffs within the city of Sheriffs of London, and of such counties, in which they be inheritable gxx'epted ^' to the office of sheriff, are excepted. 23 H. 6. c. 7. By 3 Geo. 1. it is enacted, c. 15. s. s. " That if any high sheriff of any county of England or Sheriff dying " Wales shall happen to die before the expiration or deter- l^efore his office " mination of his year, or before he be lawfully superseded, ®''P"^"' '"s " in such case the under-sheriff or deputy sherifi' by him qj. jgputy shall " appointed shall nevertheless continue in his office, and continue in " shall execute the same, and all things belonging there- office, and exe- " unto, in the name of the deceased sheriff, until another cute the same "sheriff be appointed for the said county, and sworn as sheriff's nam^ " dii'ected ; and the said under-sheriff, or deputy sheriff, till a new sheriff " shall be answerable for the execution of the said office sworn, and be " in all things, and to all respects, intents and purposes answerable ; " whatsoever, during such interval, as the high sheriff so , s^'j""ty .1 . . 2"1\'6I1 UV the " deceased would by law have been if he had been living; under sheriff to " and the security given to the high-sheriff so deceased by the deceased " the said under-sheriff, and his pledges, shall stand, re- sheriff is to con- " main, and be a security to the king, his heirs and sue- f"^"*^ during the > interval " cessors, and to all persons whatsoever, for such under- " sheriff's due performance of his office during such in- " tcrval." (f ) Dalt. 27. (/) Crom, 20S. 18 c. 10. To abide in proper person in his county. 3 Geo. I.e. 15. Hath no juris- diction out of his county. 9 H. 4. c. 1. If commanded hath authority out of his county. So, if a prisoner escape, the sheriff' may take him in another county. Cannot dispose of his bailiwick. 23H.6.C.9.S.1. 4 H. 4. C.5. Construction. Lease, though no rent reserved, is within the statute. 20 H.7. 13. Lease reserving part. HOW TO PROCURE HIS PATENT, &C. By 23 H. G. eveiy sheriff shall abide in his proper per- son within his bailiwick, for the time he shall be such officer, (except he be otherwise licensed by the king,) and that the said sheriff be sworn to do the same in special. But now this latter part is left out in the oath. Hence, it is clear, that a sheriff hath no jurisdiction in any other county, nor can he do a judicial act, in which his personal presence is required, out of his county ; but, it is held, he may a ministerial act, as make a panel or return a writ out of his county {g), or assign a bail-bond. But, if he be beyond sea, and make a panel, or any return there, and sends it into England, it is not good, for he is an officer only in England. An arrest by him in a different county is irregular, if there be no dispute as to the bounda- ries, though on the verge of the county (A). But an appli- cation against the under-sheriff on this statute depending mainly on facts, is only nisi in the first instance (i). If, on a habeas corpus, &c. the sheriff is commanded to cany a prisoner to a certain place out of his county, and in doing this he is obliged to go through several counties, to this special purpose he hath authority in these other coun- ties (/i). So, if a prisoner, of his own wrong, shall make an escape, and fly into another county, the sheriff or his officers, upon fresh suit, may take him again in another county (/). No sheriff shall assign, grant, or let to farm, his office, in any manner, nor his county, nor any of his bailiwicks, hundreds, nor wapentakes, (nor any of his courts, it seems), nor any part thereof, upon pain to forfeit 40 1. In construction whereof it hath been holden, that this is a particular law, and must be pleaded, othei-wise the judges cannot take notice of it (m). It hath been holden, that a lease thereof, though no rent was ever resei-ved, is within the statute, the intent thereof being that sheriffs should keep then- counties in their own hands (n). It seems the better opinion, that a lease reserving only part of the profits is also within the statute (o). (0 Plow. 37. Dalt. 23. (m) Ellis t). Nelson. 3 Keb. 678. (n) Dalt.c.20,&c. B.R. Grants, (g) Dalt. 22. (i^) Hammond r. Taylor, 3 B,&. A. 408. (i) Anon. 2 Ch. 389. (k) Dalt. 23. 39. ((') Plow. 27. Dalt. 23. By parol doubted. 11. 15. CONDITION OF THE RECOGNIZANCE. lU But it hath been doubted whether a lease made by the sheriff of his office or county only by parol be within the statute (p). By 3 Geo. 1, it is enacted, " It shall not be lawful for any person to buy, sell, lett, or *' take to farm, the office of under-sheriff, or deputy-sheriff, " seal keeper, county clerk, shire clerk, gaoler, bailiff, or any *' other office pertaining to the office of high-sheriff, or to " contract for any of the said offices, on fori'eiture of 500/., " one moiety to His Majesty, the other to such as shall sue " in any court at Weilminster within tivo years after the *' offence. Provided that nothing in this act shall hinder any " high-sheriff from constituting an under-sheriff, or a deputy " sheriff, as by law he may ; nor to hinder the under-sheriff, " in case of the high-sheriff's death, when he acts as high- " sheriff, from consiiiuting a deputy ; nor to hinder such " sheriff or under-sheriff from receiving the lawful fees of " his office, or from taking security for the due answering " the same; nor to hinder such under-sheriff, &c. from ac- " counting to the high-sheriff for all such lawful fees as shall *' be by them taken, nor for giving security so to do ; nor '* to hinder the high sheriff from allowing a salary to his " under-sheriff, &c. or other officer, for the execution of the " said o.ffices, places, or employments, or any of them, as to " liim sliall seem meet; nor to hinder or prevent the under- " sheriif, &c. from taking or receiving such salary or recom- " pensefor his or their pains and services therein." s.w. hinder the sheriff from allowing salaries, nor any of them from receiving the same. The Condition of the Recognizance. " 'T'HAT if the sheriff do, on the morrow of the close of The condition. *' Easter, and St. Michael the Archangel next, make his " proffers of the issues of his bailiwick, to as great sums or " better as any of his predecessors, late sheriffs of the said " county, have done, at any time of the said morrows, in " in any of the four years last past ; and also if the said " sheriff shall personally appear before the barons of this " court in fjleen days from the day of St. Hilary, to yield " to His Majesty a true and faithful account of the issues " and profits of his bailiwick, and to finish the same ac- *' count, and pay all that shall be due thereon, before the " morrow of the Ascension then next following, or shall " otherwise lawfully discharge himself thereof; and if he the " said sheriff, shall have and assign his able and sufficient " attorney or deputy in this court, the same court sitting, " who shall attend the court from time to time to receive and " return the writs and commandments of the same court, (p) Dalt. 24. c 2 Penalty of buy- ing- or selling any office under a sheriff. Proviso, not to hinder liini from constituting an under- sherift', &:c. ; nor an under-sheiifF, acting as high- sherilf on his death, from ap- pointing a de- puty, nor from taking the fees of their office, or security for answering the same, nor dis- charge any officer from ac- counting, &c. for fees, nor 20 SHERIFFS OF LONDON. " according to the statute in that behalf provided ; then " this recognizance to be void, or else to remain in full " force and virtue." The patent of William, &.C. To all to whom these our letters patent office of sheriff. letters patent shall come greeting : Knotv ye that we have committed to our well-beloved Esquire, the custody of our county of with the appurtenances, during our pleasure, so that he annually render unto us our due farms, and answer to us touching our dues and all other matters concerning the office of sheriff of the county aforesaid, in our court of Exchequer. In witness whereof we have caused these our letters to be /made patent : Witness ourself at the day of in the year of our reign. The writ of William, &c. To our beloved Esquire, late ° ' sheriff of our county of greeting : whereas we have committed to our beloved Esquire, the cus- tody of our said county, with the appurtenances, to hold the same during our pleasure, as by our letters patent to him thereof made more fully appears : we command you, that you deliver to the said our aforesaid county, with the appurtenances, together with the rolls, writs, memorandums, and all other things belonging to Now exempted t'^c office of sheriff of the said county, which are in your from stamp custody, by indenture duly executed between you and duty, 55 Geo. 3. the said Witness ourself at the ^' day of in the year of our reign. Tatent of assist- William, &c. To archbishops, bishops, dukes, earls, ^"'^^* barons, knights, freeholders, and all others of our county of greeting : whereas we have committed to our well- beloved Esquire, the custody of our said county, with the appurtenances, during our pleasure, as as by our letters patent to him thereof made more fully appears; we command you, that ye be aiding, answering, and assisting to the said as our sheriff of our said county, in all things which appertain to the said office. In witness whereof we have caused these our letters to be made patent. Witness ourself at the day of in the year of our reign. . Of the Sheriffs of London, &c. Grant of the T^EFOUE I proceed farther, it may not be unproper to shrievalty of ^^j^g iiotice of the sheriffs of London, who hold the Middlesex. shrievalty of Middlesex, granted to the citizens oi London by charter of i^. 1. at 300/. p(3r annum, and confirmed to them by King John, with all customs belonging, within SHERIFFS OF LONDON. the city and without, paying 300 /. per ann. at the Easter and Michaelmas Exchequer {<7). London is a county of itself; and so long as this city- hath been a county of itself, so long there have been sheriffs, for it cannot be a county without sheriffs. Sheriffs of London are as two in London, but in 31iddlesex they are but as one(r). By an act of common council, dated 7th vl^HZ 1748, mtituled, " An act for repealing all former acts, orders and ordi- nances, touching the nomination and election of sheriffs of the city of London and county of Middlesex; and for regulating and enforcing such nominations and elections for the future," reciting, that from time immemorial, there have been, and of right ought to be, two sheriffs of this city, which said two sheriffs, during all the time aforesaid, have constituted, and of right ought to constitute, one sheriff of the county of Middlesex. That the sheriffwick of this city, and the sheriffwick of the said county of Middle- sex, from time immemorial, belonged, and do of right be- long, to the mayor and commonalty and citizens of the city of London. That the several acts, orders, and ordinances, heretofore made and passed in this city, touching the choice or election of persons to the offices of sheriffalty of this city and county of Middlesex, and for compelling the persons so chosen or elected to accept and serve the said offices, have hitherto proved ineffectual to answer the several purposes in and by such acts, orders and ordinances, expressed or in- tended. For remedy thereof, be it enacted, and it is hereby enacted and ordained, by the Right Honourable the Lord Mayor, the Right Worshipful the Aldermen and the Commons of this Citv, in this present common council assembled, and by the authority of the same, that all and every of the said acts, orders and ordinances, so far as the same relate to the said offices of sheriffalty, shall from henceforth be, and the same are hereby repealed, annulled, and made utterly void and of none effect. That from henceforth the right of electing persons to the said offices of sheriffiilty shah be, and the same is hereby vested in the liverymen of the several companies of this city, to be for that purpose fi-om time to time assembled in the common hall of the Gudd- hall of this city ; and that the general day of elections of persons to the said offices shall be, yearly, the 24th day of June, unless the same shall happen to be Sunday, in which case the said election shall be on the day then next following. (2 ) rriv, of Lond. o. (r) 4 Inst. 248. Ravmoud r. Barber, 2 Show. 433. c 3 21 London a county. Act of common council relating to elections of sheriffs of London. SlierifRvicks of the city of Lon- don and JNIid- dlesex have belonged to the mayor, &c. Acts and ordi- nances proved inelfectual. Former acts repealed. Who to elect sherilis, and when to be the general election day. In what in- stances elections to be on other days. ^Vhen persons elected are to take, and how long to hold the otlice. In what instan- ces old sheriffs shall hold over. SHERIFFS OF LONDON. That whenever it shall happen that any person or per- sons elected to the said offices of sheriffalty shall in any instance refuse or neglect to conform to this act. or shall depart this life, or be lawfully removed or discharged from the said offices, or from his or their respective election thereunto, or that, upon any other occasion whatsoever, there shall be just cause to proceed to a new election ; then, and in every such case, it^ shall and may be lawful to and for the liverymen of the said several companies of this city, duly assembled as aforesaid, (o proceed to and make such nev: eJedion, at such day and time as by the court of lord mayor and aldermen of this city for the time being shall be ordered or appointed, any thing to the contrary notwithstanding. That every person who shall hereafter be elected to the said offices of sheriffalty upon the said general election day, or any other time between the said general election day and the 22d day of September in the same year, when there shall be no actual vacancy in the said offices, shall take the same upon him on the vigil of St. Michael the archangel next Jbllotving his said election, and shall hold the same for and during the space of one whole year from thence next enduing ; and that every per- son who shall be elected to the said offices on the said 22d day of September, or at any time between the said 22d and 28th days of September, or upon a vacancy happening in the said offices, or when the sheriffs of this city and county of Middlesex for the time being, or either of them, shall hold over, as is hereinafter mentioned and provided, shall take the said offices upon him, on the seventh day next after notice of his said election, and shall hold the same until the swearing in of the new sheriffs upon the vigil of St. Michael the archangel next following the day of his taking the said officees upon him as aforesaid. That if upon any future vigil of St. Michael the archangel it shall happen that neither of the said persons elected to the said offices of sheriflPalty shall appear in the Guildhall aforesaid, and take the said offices upon him, then, and in every such case, both the then sheriffs shall hold over and continue in the said offices until some other persons shall be duly elected and sworn into the same in their stead ; and if, upon any such vigil, it shall happen that only one of the persons elected to the said offices shall so appear, and take the said offices upon him, then, and in every such last men- tioned case, the junior in office of the then sheriffs shall hold over and continue in the said offices until some other person shall be duly elected and sworn into the same in his stead, any thing, or any law or custom, to the contrary notwithstanding. That from henceforth, at every assem- SHERIFFS OF LONDON. bly of the liverymen of the several companies of this city for the election of a person or persons to the said offices of sheriffalty, every alderman of this city who shall not actually have served the same shall, according to his seniority in the said court of lord mayor and aldermen, and before any commoner of this city, be publicly put in nomination for the said offices ; and every alderman of this city who shall be elected to the said offices shall therein take place according to his seniority in the said court, and have precedence of every commoner of this city. That from henceforth for evei", it shall and may be law- ful to and for the lord mayor of this city for the time being, at such time or times as he shall think proper between the 14th day of April and the 14th day o^ June in every year, to nominate, in the said court of lord mayor and aldermen of this city, one or more fit and able person or persons, (not exceeding the number of nine persons in the whole,) being free of this city, to be publicly put in nomination for the said offices of sheriffiilty, to the liverymen of the several companies of this city, to be hereafter in the com- mon-hall aforesaid assembled, for the election of a person or persons to the said offices ; and the person or persons so nominated by any lord mayor of this city shall, at every such assembly of the said liverymen after his and their respective nominations by the lord mayor as aforesaid, be publicly put in nomination for the said offices before any other commoner of this city, and in the same order as he or tliey shall stand nominated by the lord mayor, until he or they shall respectively have been duly elected to the said offices, or shall have been duly discharged of and from such nomination, in such manner as is hereinafter mentioned. Provided always, that if any person so nominated by any lord mayor of this city shall, ivithin six days after notice thereof, pay to the chamberlain of this city for the time being the sum of 400/. for the uses hereinafter men- tioned, and twenty marks towards the maintenance of the ministers of the several prisons within this city, together with the usual fees, every such person shall be, and is hereby for ever exempted and discharged from such nomi- nation, and from serving the said offices of sheriffalty, unless he shall afterwards take upon him the office of an alderman of this city, in which case he shall be liable to be elected to the said offices of sheriffalty, such payment of the said sum of 400/. and twenty marks notwithstanding. That at every assembly of the liverymen of the said several companies of this city, in the said common-hall assembled, for the election of one or more person or per- sons to the said offices of sheriifalty, all and every such 23 In what order the old alder- men to be put up and take place. Power to the lord mayor to nominate per- sons, and how they shall l>e put up. 400 /. to be paid to discharge persons nomi- nated tiy the lord mayor. In what order persons nomi- nated by two liverymen aie to be put ujj. -^ SHERIFFS OF LONDON. person or persons, being free of this city, and then not exempted or discharged from the said offices, as shall then and there be for that pm-pose nominated by any two or more of the said hverymen then and there present, and having a right of voting at such election, shall be publicly put in nomination for the said offices next after such per- son or persons as shall have been so nominated for the said olfices by any lord mayor of this city, and shall not then have been discharged from such nominations, (if any such shall then be,) or in default of such person or persons last mentioned, then next after such of the aldermen of this city as shall not have served the said offices. In what cases, And by a new act of common council, holden nth of by whom, and ^ June 1 799, it is ordained, That no freeman of this city who to be exJused"^ ^^^^^^ hereafter be elected by the said liverymen as afore - for insufficiency said, or nominated by any lord mayor of this city as of wealth. aforesaid, to or for the said offices of sheriffalty, shall be discharged from such election or nomination for insuffi- ciency of wealth, unless he shall and do voluntarily take his corporal oath, before the said court of lord mayor and aldermen, " that he then is not of the value of 20,000/. " in lands, goods, and separate debts, and also unless six " other citizens, freemen of this city, to be brought by him, " and being of good credit and reputation, such as the said " court shall approve of, shall and do likewise, before the " same court, voluntarily testify, upon their corporal oaths, " that in their consciences they believe the said person so " elected by the said liverymen, or so nominated by the *' lord mayor, {as the case shall happen to be,) hath deposed " and sworn truly concerning his value as aforesaid ;" in ■which case, and so often as the same shall ha})pen, the said court of lord mayor and aldermen shall and- may, at all times hereafter, discharge any person whatsoever as well of and from any nomination which shall have been made of him by any lord mayor of this city as aforesaid, as of and from any election which shall have been made of him by the liverymen of the several companies of this city as aforesaid, any thing notwithstanding. In what instan- And by the said former act of common council, 7th of Tci^^d 1^*°"^ April 1748, it is provided and enacted. That every person bo\uU andThe "''^o shall be elected to the said offices of sheriffalty, upon forfeiture in case the said general election-day, or at any other time between of default. the said general election day and the 14th day oi^ Sejjt em- ber in the same year, when there shall be no actual vacancy in the said offices, shall personally appear before the said court of lord mayor and aldermen in the inner chamber of the Guildhall aforesaid, at the first court there to be holden next after notice of his election, unless such reasonable SHERIFFS OF LONDON- '21 excuse shall then and there be offered on his behalf as the said court shall allow ; and in case of such excuse allowed, then at such other subsequent court or courts as the said court shall appoint, and shall then and there be- come bound to the chamberlain of this city for the time being, his executors and administrators, by his bond or obligation, In the penal sum of 1,000/. with condition thereunder written, or thereupon indorsed, " that if he " shall personally appear on the vigil of St. Michael the " archangel then next following, between the hours of " twelve and three of the clock in the afternoon, in the " public .assembly in the said GuihlJudl, in the j^lace " uhere the court of Hustings is usually holden, and then "and there, in the presence of the lord mixyov of this " city for the time being, and tivo of the aldermen of this " city for the time being, and in case of the absence of " the lord mayor, then in the presence of four of the " aldermen, take the oath of office, there usually taken by " the sheriffs of this city and county of Middlesex, then " the said bond or obligation shall be void," upon pain that every person so elected who shall not appear and become bound as aforesaid shall (if an alderman of this city, or a commonor previously nominated by the lord mayor of this city as aforesaid) forfeit and pay, to the uses heremafter mentioned, the sum of 600 / , or if he shall not then be an alderman of this city, or a commoner so pre- viously nominated by the lord mayor of this city, the sum of 400 /. That if any freeman of this city who shall be duly elected Penalties on to the said offices of sheriffalty upon the said 14th day of persons elycted September, or at any other time between the said 14th f "/''^ ^^f*!' *"■ day and 22d days oi September m the same year, when 14th and 22d there shall be no actual vacancy in the said offices, and of September, shall have six days notice thereof as aforesaid, shall not vvhen no va- appear on the vigil of St. Michael the archangel next ^.^'Vi'io^t'^take after such notice, between the hours of twelve and three, ^,1^ ^^^^ ^^^^^ in the public assembly in the Gidldhall aforesaid, in iu time, the place where the said court of Hustings is usually liolden, and then and there, in the presence of the lord mayor of this city for the time being, and two of the alder- men of this city for the time being, or in case of the absence of the lord mayor, then in the presence of four of the aldermen of this city for the time being, take the oath of office there usually taken by the sheriffs of this city and county oi' Middlesex, then and in every such case such person shall (if an alderman of this city, or if a com- moner previously nominated by the lord mayor as afore- said; forieit and pay, to the uses hereinafter mentioned, the 2G Penalties on persons elected on the 22d, or between the 22d and 28th of September, or in cases of vacancy, or of sheriffs holding over, who shall not take the office in time. How penalties are to be re- covered. In what case the sheriffs to have part of the fines, and SHERIFFS OF LONDON. sum of Goo / , or if he shall not then be an alderman of this city, or a commoner so nomiated by the lord mayor, the sum of 400^. That if ever}' freeman of this city who shall be duly elected to the said offices of sheriffalty on the said 22d day of September, or at any time between the said 22d and 28th of September, or upon a vacancy happening in the said offices, or when the sheriffs for the time being, or either of them, shall have held over as aforesaid, shall not personally appear on the seventh day next after notice of his election, between the hours of twelve and three, in the public assembly at the Gidldhall aforesaid, in the place where the said court of Hustings is usually holden, and then and there, in the presence of the lord mayor of this city for the time being, and two of the aldermen of this city for the time being, or in case of the absence of the lord mayor, then in the presence of four of the aldermen of this city for the time being, take the oath of office there usually taken by the sheriffs of this city and county of Middlesex, then and in every such case such person shall (if an alderman of this city, or a commoner previously nominated by the lord mayor as aforesaid) forfeit and pay, to the uses hereinafter mentioned, the sum of 600/., or if he shall not then be an alderman of this city, or a com- moner so previously nominated by the lord mayor, the sum of 400 /. That all penalties and sums of money to be forfeited by virtue of this act or ordinance shall be recovered by ac- tion of debt, to be commenced and prosecuted in the name of the chamberlain of this city for the time being, in one of the courts of record of the king's majesty, his heirs and successors, within this city, where no essoign or wager of law shall be admitted or allowed for the defendant (/) ; and that the chamberlain of the city for the time being, in all such actions to be prosecuted by virtue of this act wherein he shall obtain judgment by verdict, nil dicit, or confes- sion, or upon demurrer, shall and may recover his costs of suit ; and if a verdict shall be given for the defendant, or if the plaintiff shall be nonsuited, or discontinue his action after defendant shall have appeared, or if upon demurrer judgment shall be given against the plaintiff, the defendant or defendants shall and may recover costs, and have the like remedy for the same as any defendant or de- fendants hath or have in other cases hy law. That if it shall happen that two or more persons nomi- nated by any lord mayor or lord mayors of this city, for the said offices of sheriffalty, shall, between the 14th of (0 5 Mod. 438. Carlh. 180. SHERIFFS OF LONDON. April and the 24th June in any one year, pay unto the chamberlain of this city for the time being the sum of 400 /. to be exempted and discharged from their said no- mination, -and from serving the said othce according to the proviso for that purpose hereinbefore contained, tlien and in every such case the said chamberlain for the time being shall, out of the monies so paid to him, issue and pay the sum of 100 /. to each of the two persons who, upon the vigil of St. Michael the archangel in that year, or at any other time thereafter, shall first and next take the said offices upon them ; and if it shall happen that only one person so nominated by any lord mayor shall pay the said sum of 400 1. within the time and for tlie purpose aforesaid, then and in every such last-mentioned case the said chamberlain for the time being shall thereout issue and pay the sum of 50 /. to each of the two persons who, upon the said vigil in that year, or at any other time hereafter, shall first and next take the said offices upon them ; and that the residue of all and every the sums of 400/. which shall hereafter be paid to the chamberlain of this city for the time being, within the time and for the purpose aforesaid, and also all penalties and sums of money to be forfeited and paid by virtue of and in pur- suance of this act, shall go and be applied to the use of the said mayor and commonalty and citizens of the city of London, subject to such orders and resolutions of this court as have hitherto been made touching the monies paid into the Chamber of London as a fine for not holding the said offices, and to such further orders and resolutions of this court as shall hereafter be made touching the same. That every person who hath at any time heretofore paid to the chamberlain of this city for the time being, for the use of the mayor and commonalty and citizens of the same city, an}'- sum of money to be exempted or discharged from the said offices of sheriffiilty, shall be, and is hereby for ever exempted and absolutely discharged from the said offices of sheriffalty, unless such person shall at any time hereafter take upon hira the office of an alderman of this city, in which case he shall be, and is hereby declared to be, subject and liable to be elected to the said offices, such payment or any thing to the contrary notwithstanding. That no person who now hath, or hereafter shall have duly served the said offices of sheriffalty of this city and county of Middlesex, according to the true intent and meaning of this present act, or of any former act of com- mon council, shall hereafter be eligible to the said offices a second time, any thing contained to the contrary not- withstanding. 27 how the rest of tlie fines and forfeitures to be applied. No person who has Ijeen fined upon any for- mer acts to be ehgible. No person to serve a second time. 28 SHERIFFS OF LONDON. The Oath of the Sheriff. The oath of " \^E shall swear, that ye shall be good and true unto the shuiifts of n q^p sovereign lord the king of" England, and unto London. (t j^j^ heirs and successors ; and the franchise of the city " of London, within and without, ye shall save and main- " tain to your power ; and ye shall well and lawfully keep " the shires of London and Middlesex, and the offices " that to the same shires appertain to be done well and " lawfully, ye shall do after your wit and power ; and " right ye shall do, as well to poor as rich, and good cus- " torn you shall none break, ne evil custom arrere, and the " assize bread all, and all other victuals within the fran- " chise of this city and without, well and lawfully ye shall " keep, and do to be kept, and the judgments and execu- " tions of your court ye shall not tarry without cause " reasonable ; ne right shall you none disturb. The writs " that to you come touching the state and franchise of this " city you shall not return till you have shewed them to " the mayor and the council of this city for the time being, " and of them have advisement ; and ready you shall be, " at reasonable warning of the mayor, for k(3eping of the " peace, and maintaining the state of this city ; and all " other things that longen to your office, and the keeping " of the said shires, lawfully you shall do, by you and " yours ; and the city you shall keep from harm after your " power, and the shire of Middlesex ; ne the gaol of *■• Nervgate you shall not let to farm. As help you God." Addition. " VE shall also swear, that ye shall freely give all such " rooms and offices of Serjeants and yeomen, as shall " happen to become void during the time ye shall remain " in the office of sheriffalty, to such apt and able person " and persons as shall be by you nominated to the lord " mayor and court of aldermen, and by them admitted, " without any money or other reward to be had, taken or *' hoped for in respect thereof, according to the act of •' common council made and provided in that behalf, the " nine-and-twentieth day of April, in the six-and-twentieth *' year of the reign of our sovereign lady queen Elizabeth, " &c. As God you help." To attend to 'The sheriffs are to attend on Michaelmas-day at Guild- he sworn in. hall to be sworn in ; in the evening to take by indenture the prisoners in Neicgate on the Middlesex side, and by inrolnient on the London side oi Liidgate and Giltsjnir- street Compters, and at the same time execute the grants to the keepers of Ludxjate and Newgate. SHERirrS OF LONDON. 29 The keepers of Liidgate and Newgate, as well as the Serjeants at mace, execute their securities in the morning. The next day the sheriffs attend at the Exchequer be- fore the cursitor baron, to be sworn to answer and pay the fees, &c. On the morrow after Low Sunday, they attend at the Exchequer, and have ready the Exchequer clothes, (which are provided ready, and 40 s. by tally for the proff^^rs for the liberties and franchises of London and 3Iiddlesex for half a year then ended : a public breakfast is prepared for the cursitor baron aud clerks.) The like payment is to be made on the morrow after Michaelmas-day; in default of which the liberties and franchises of the city are liable to forfeiture. Herrings are provided by the sheriffs for the officers of the court as a breakfast this day. In 3Iichaelmas temi to present the barons and officers with 42 loaves of fine sugar, viz. 6 to the chief baron, 6 to the cursitor baron, 12 to the pipe officer, 12 to the secondaries, 6 to the under-sheriffs. The Serjeants and yeomen had formerly at Christmas Serjeants and winter liveries, and at Midsummer summer liveries, which y^o'^^"* are now reduced to one livery, and in lieu thereof, the Serjeants are paid 33 s. and 4d. a-piece, and the yeomen 30 s. a-piece. The sheriff shall put his name to the return ; and in Returns. London, where there are tivo persons, both ought to put 12 Ed. 2. 5. their names,for they are but one sheriff (s.) So of Coroners. 39 H. 6. 4i . Where one of the sheriffs of London dies the other When one dies cannot act, because he is no sheriff, but must wait until *''^ °*'^'^' ''^"" another be chosen; for there must be two sheriffs of London, which is a city and county ; but one sheriff of Middlesex, which is only a county {t). London had no sheriffs in the 13 Edw. 1. {u). A man was arraigned and condemned of felony, and ^ '^^'^- ^^o"- was imprisoned in Newgate, at the gaol delivery for Mid- execi'u^on^for dlesex; and afterwards a writ of execution for debt issued deot, execu- against him out of the Exchequer, directed to the sheriffs tion issues, of London, who serve the execution upon the body of ^'^^"V'* " °"" 1 • • i\T IP 1 1 p 1 1 • ^'^^ sei-ve It, the prisoner in Newgate; and afterwards, the felon bemg the man par- pardoned of the felony, it became a question whether the doned, whether execution was lawful? And if it was, then whether the f '='^7|^°'^ '^e (i) Hub. 70. (f) 1 Leon. 2SI. («) 1 Show. 2S9. 30 Held by the Barons not lawful, because he was of the Middlesex side. The sheriff may choose to serve the execution or not, yet if he will serve it, held good, and liable to an escape. On ca. sa. to sheriff of i\Iid- dlesex, if he take him, and after another to sheriffs of London, he shall not be charged in London. Commitment by sheriff of Middlesex is not a commit- ment in Lon- don, though the sheriffs of I,ondon and Middlesex are one. Importance to have sheriff appointed. HIGH SHERIFFS OFFICE, &C. pardon had not discharged it? First, by all the Barons, the execution served Ijy the sheriffs of London, by force of a capias directed to the sheriffs of London, was not lawful, because the party was in prison in the gaol of Middlesex ; and although Newgate was within Londoriy yet as a prison indifferent to both counties, and the prisoner was in the prison for Middlesex, and not for London ; and the process ought to have been directed to the sheriff" of Middlesex. Secondly, the sheriff" may choose to serve the execution or not upon the body of the felon for debt; for that, inasmuch as the king by the judgment of the felony hath interest in his person, this interest is sufficient privilege against the action, or ex- ecution of any subject; yet if the sheriff" will serve the execution, then the prisoner shall be said to be in execu- tion for the debt, and yet subject to the judgment of felony for the king; and if the felon escape, the sheriff" shall answer to the king and the party also ; and if the king pardon the felony, and the sheriff" suff"er him to go at large, it is an escape. That upon a ca. sa. to the ^\\ev\^ o^ Middlesex io take J. S., if the sheriff" take him and put him in ]Vetvgate,wh\cli is the common prison for London and Middlesex, and after another writ of execution comes to the sheriff's of London, although the sheriff's of London are also sheriff" of 3Iiddle- sex, and Newgate (where the prison is) is the prison for both counties, yet the prisoner shall not be said to be in execution upon this new writ in London, nor may the she- riffs of London serve it upon him, because he is in another county. For when the commitment is to Newgate by force of a writ directed to the sheriff" of Middlesex, he may not be said in any respect to be in the city of London; for the counties continue several, and the prison several, in respect to the several commitments; for there are two several sides, and a partition between them {x). Tlie High-Sheriff's Office, Powers and Duty, and also of appointing an Under-Sheriff and other Deputies. 7T is of the utmost importance to have the sheriff" ap- pointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. (r) 1 Rol. Abr. 891. Coar's case. HIGH sheriff's OFFICE, &C. In his judicial capacity he is to hear and determine all causes of forty shillings value and under in his county court, and he has also a judicial power in divers other civil cases ; in a writ of recUsseisin, the sheriff acts as judge, as well as minister; so in inquiry of waste, and admeasurement of pasture, when he executes his judicial authority, he must do it in person, and it is not sufficient by the under-sheriff or other deputy (?/). As the lieeper of the king's peace, both by common and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office {z). He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it ; and may bind any one in a recognizance to keep the king's peace. So he may order a person, making a disturbance at a county court for the election of a knight, to be taken into custody, and carried before a justice to give security for good behaviour (a). He may, and is bound ex officio to pur- sue, and take all traitors, murderers, felons, and other mis- doers, and commit them to gaol for safe custody. He is also to defend his county against any of the king's enemies when they come into the land : and for this purpose, as well as for keeping the peace, and pursuing felons, he may com- mand all the people of his county to attend him ; which is called the posse comitatus, or powder of the county (Z>), which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning (c), under pain of fine and imprison- ment. But though the sheriff is thus the principal con- servator of the peace in his county, yet, by the express directions of the great charter, he, together with the constable, coroner, and certain other officers of the king, Bve forbidden to hold any pleas of the crown, or in other words, to try any crimimd offence. For it would be highly unbecoming that the executioners of justice should be also the judges ; should impose, as well as levy, fines and amercements ; should one day condemn a man to death, and personally execute him the next. Neither, as has been said before, may he act as an ordinary justice of the peace icithin his county during the time he acts as a sheriff. (v) 5 Com. Dig. 59.5. (:) 1 Rol. R. 237. (a) Spilsbury v. Micldetliwalte, 1 Taunt. 116. {b) Dalt. c."f)5. ((•) Lamb. Eir. 315. 31 Judicial office aud capacity. As keeper of the king's peace. Posse comitatus. Persons above fifteen to attend. 2 II. 5. c. 8. c. 17. Cannot hold pleas of the crown. Reason. St. 1 . M. Sess. 2, c. 8. 32 Ministerial capacity. Rlinisterial office. As the King's bailiff. Acco\mtable to the king of all farms, &c. of his county. But for escheats, &c. not unless they come to his hands. 2 H. 7. 6. HIGH sheriff's office, 8CC. In his ministerial capacity, the sheriff is bound to exe- cute and return all process issuing from the king's courts of justice to him directed. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail ; when the cause comes to trial, he must summon and return the juiy ; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, returns the jury, has the custody of the delinquent, and executes the sentence of the court, though it extends to death itself. The ministerial office of sheriff consists in bailment of prisoners ; in making replevin ; in election of knights and burgesses for parliament, coroners and verderors; in at- tendance upon the judges, justices, &c. in proclamation of statutes, and in keeping and collecting the rights and revenues of the king {cl). As the king's bailiff, it is his business to presei-ve the rights of the king within his bailiwick ; for so his county is frequently called in the writs, a word introduced by the princes of the Norman line, in imitation of the French, whose territory is divided into bailiwicks, as that of Eng- land into counties. He must seize, to the king's use, all lands devolved to the crown by attainder or escheat ; must levy all fines and forfeitures; must seize and keep all waifs, v/recks, estrays, and the like, unless they be granted to some subject; and must also collect the kino's rents within his bailiwick, if commanded by process from the Exchequer (e). As soon as he is made sheriff, he is accountable 4o the king of all farms, rents, issues, and profits of the county, which run in account under the name of Vicontiels, But for the escheats of the green wax (out of the Exchequer) and such others, (as for the fines and amerciaments set in any court upon offenders, issues lostfor default of appear- ance, the king's debts, &c.) the sheriff is not chargeable as sheriff at the first, nor at any times after, nor to levy the same, except the sums be estreats del sommcs come to him out of the Exchequer, and then, when he hath them, he is chargeable and accountable (/). Sheriffs are to cause clerks of assize and other officers to take sufficient recognizances (g). (d) Mod. 242. (e) Dalt. c. 9. F. de laud. c. 24. (/) Dalt. 49. (o) lOTri. 114. Gen. Ord. HIGH SHERIFr's OFFICE, &C. 3:) As writs and process are directed to the sheriff, neither >^l>eiiff not to he nor his officers are to dispute the authority of the fiSjf^'J'^l^e"' court out of which they issue, but he and his officers are, court. at their peril, truly to execute the same, and that accord- ing to the command of the said writs, and hereunto they are sworn (h) ; but not if the court be an illegal one(^). The sheriff, being obliged to execute every writ and pro- Obliged to do cess issuing and directed to him by lawful authority, he ^^^.^^^^ "^ *"'* is likewise obliged by the duty of his office to execute such process, without favour, with the utmost expedition and secrecy, and as soon after he receives it as the nature of the thing will admit of; and herein there cannot be a surer thing to go by "than a sti'ict observance of what is en- joined by the writ ;" but as, on the one hand, he must not Not to show show any favour, nor be guilty of any unreasonable delay, favour, nor ha so, on the other hand, he must not be gviilty of oppression, |u'Jy " opFes- nor make use of other force, nor greater violence, than the thing requires. The sheriff is an officer of that eminence, confidence, Ought to be and charge, that he ought to have all right pertaining ^^""'^ to his office, and ought to be favoured in law, before any private person(^) ; and the King cannot abridge his power (/). By the common law, he is the same officer to the court ^ is the same of King's Bench as the constable is to the justices of the pQ^.^ qj- Kino^'s peace {m). Bench as the constable is to the justices. If any sheriff, &:c. who hath execution of process, be Killing of the slain in doing his duty, it is murder in him who kills him, f '■^^''!** '"•^*^'"^^j.. although there were not any former malice between them ; dg^^ and if there is error in award of process, 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 defendant shall not have advantage 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 No need of spe- needs not a special indictment to be drawn, but a general, cial indictment. that such a party, of his malice aforethought, struck, &,c., for the law presumes malice, though none be proved ; so it is, if any shall come in aid of them. And an officer, if he be resisted, is not bound to fly to the wall, as other sub- jects are (w). (/() Dalt. 1(14. (TO)Salk. 175. 2 Ld. Ray. 1H)5. (OHob. 6:i. Fortes. 129. (fc) 4 Co. 33. («) Cro. Jac. 280, pi. 13. 9 Rep. (0 Hob, 13. CO. D 84 I'-veiy man is lound to assist. Before ii€ uses force, c&cc. SlierifT guilty of liomicide if he does not ol)ser\e the order of law in putting a man to death : 25 G. 2. c. 37. If the writcom- miiuds the sheriff to go in person, and he return and file it that he has - so done, good, though he did not attend. The duty of sheriff to exe- cute writs, hut not to use force or violence, un- less they find resistance. Particular du- ties of the sheriff. HIGH sheriff's OFFICE, &C. Every man is bound, by the common law, to assist, not only the sheriff' in his office for the execution of the kmg's writs according to law, but also his bailiff" that hath the sheriff's warrant in that behalf hath the same authority which his master hath : for the sheriff" cannot do all him- self; and if they do it not, being required, they shall be fined and imprisoned (o). But before the sheriff" uses force, he ought to demand the goods to be delivered, for force ought to follow, not precede the law. Though the sheriff" be so much favoured and respected 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 (p). In all cases where the writ commands the sheriff" to go in person, there the writ is his commission, from which he cannot deviate ; but if the sheriff" returns that he was there in person, and this return be received and filed, then any information to the contrary comes too late, because by the filing it is become a matter of record, against which no averment in pais lies, neither can the party have error upon the return (q). Though it be the duty of the sheriff", &.c. having the exe- cution of the king's writs, and, being resisted in endea- vouring to execute the same, to raise such a power as may eff"ectually enable them to overpower any such resistance, yet it is said not to be lawful for them to raise a force for the execution of a civil process unless they find a resist- ance ; and it is certain that they are highly punishable for using any needless outrage or violence therein (r). The ministerial authority, duty or office of the sheriff, consists principally of these things, as laid down by Daltoji {s). " 1. Truly to keep the king's rights of his crown within " his county: sc. the king's lands, franchises, suits, rents, *' and all other things that belong to the crown. " 2. Truly to gather (and bring into the Exchequer) the " profits and monies due to the king within his county or " bailiwick: sc. the king's rents, farms, debts, issues, " amerciaments, fines and forfeitures. (<>) 2 Inst. 193. (/)) 3 Inst. c. 7. p. 52. H. H. P. C. 433, 454, 456. Fost. Cr. Law, 2C7. (,l) Dalt. 34. Cro. E. 9, 10. pi. 1. (r) 3 Inst. 161. 2 Inst. 193. Hob. 62. 264. (s) C. 5. p. 36. HIGH SlIERTFr's OFFICE, ^C, 35 " 3. To seize to the king's use the goods of felons at- " tainted, and of fugitives, of persons outlawed, treasure " trove, waifed goods, 8cc. deodands, estrays, wrecks of " the sea, whales, escheats, wards, and lands of idiots. " 4. Truly to accomplish and put in execution all man- ** ner of writs, process, judgments, executions, command- ^* ments and precepts, directed to him from any of the " king's courts, which are to be executed within his " county, duly to return all such writs, &.C., to impamiel "jurors, and to return them. " 5. To be attendant upon the judges in their circuits, " &c., and to execute all their lawful commandments. " 6. To assist the justices of peace in his county, &.c. f " To join with them. " In some cases < " To attend them. I " To execute their precepts. " 7. To execute the precepts of commissioners of sewers, and other commissioners. " 8. To execute the precepts of escheators and coroners. " 0. To assist the ordinaiy in suppressing heresies. " 10. Duly to keep his courts : sc. !" Tourne ; in this the sheriff is a judge of record, " and so hath a judicial power. " County or shire court ; which in some cases also " is a court of record. "11. To proclaim certain statutes, &c. " 12. To make purveyances for the king in some cases." And all these the sheriff is to do his best endeavour for the keeping and preserving thereof, so far as belongs to his office (0. To execute these various offices the sheriff has under him many inferior officers, viz. an under-sheriff, bailiffs, and gaolers, who must neither buy, sell, nor farm their offices, on forfeiture of 500 1. 3 Geo. i, c. is. The great expense which custom had introduced in Sheriff not to serving the office of sheriff, havins; e;rown very burthen- ^^^^ table at V , , ' o t) J assizes. JNum- some, it was enacted, be of his men. " That no sheriff should keep any table at the assizes, ^^- , ^ . ,. " (except for his own family,) or give any presents to the .^, ^'" " judges or their servants, or have more than forty men in " livery ; yet, for the sake of safety and decency, he may not (0 Staunf. 74, 5. d2 36 1 W. 4. c 70. s. 33. UnJer-slierifT. High sheriff answerable. Anciently ap- pointed uncler- sheiiff. St.West. 1. 15. Under-sheriff called sub vice ; 13 Ed. 1. c. 39. c. 15, UNDER-SHERIFF. " have less than twenty men in England, and twelve in " Wales, upon forfeiture of 200 /," This act not to extend to the sheriffs of London and Middlesex, the sheriff of Westrnmdand, or any sheriff of any city and county, or town and county. Sheriffs of Wales and the counties palatine directed to levy fines transmitted by the clerks of assizes, and to ac- count as heretofore. Of the Under- Sheriff. A S it is impossible the high sheriff can himself personally execute every branch and thing belonging to his office, and as the law, from the necessity of the thing, and in fur- therance of justice, allows him to make a deputy ; hence it is necessary that such deputy should, in all things in which the high sheriff's personal presence is not required, have the same power with the sheriftliimself ; and as by the nomination the sheriff implicitly confers on him a power of doing all such offices as he himself could exe- cute, and which may be transferred by the law, it is like- wise held, that the deputy's authority is by law so equal with the principal's, that any condition, covenant, or other bargain to restrain it is void ; and, therefore, it is now universally agreed, that the under-sheriff may make hills of sale upon executions, assign bail-bonds, make returns to writs, and, in general, do every thing that the sheriff him- self can do, except when the personal presence of the higli sheriff' is necessary. He is appointed by deed, which is aftenvards filed in the King's Remembrancer's-office in the Exchequer (m). The high sheriff, by law, is answerable for the conduct of his under-sheriff, yet he is not to be punished criminally for his acts, nor to be imprisoned, nor indicted for his mis- demeanors {x). It appears that the sheriff of ancient time had his under- sheriffXy)- In ancient time he was called sub-vice comes. And in 11 H.l. he is called the shire-clerk, or the clerk of the county. And yet the word shire-clerk is sometimes taken to be the under-sheriff, sometimes for a clerk in the county-court, deputy to the under-sheriff (c). (it) Hob. 12, 13. Salk. 95. (x) Dalt. 3. Latch. 187, & 5 Pri. 578. (1/) Hob. 13. 2 Inst. 191, (:) 9 Co. 49. Dyer, 355. Dalt. 455. UNDER-SHERIFF. 37 He may constitute him at his will, and remove him May remove when he pleases. So, though he make him irrevocable, '""'• yet he may remove him at pleasure, for he is only his de- puty. And it is said that he need not make an under- l^^eed not make sheriff, for he may exercise the office himself. If he m^kes Ma^ttlTbond"; an under-sheriff, he may take a bond or covenant to 6cc. Cannot indemnify him from escapes. But he cannot enable him to enable under- do a thins- which the sheriff himself ought to do in person ; '^'"'f 1° '1° |'^^^ ^ -p 7.'- ■ ■ 1 which he is to as to execute a writ of waste, redisseisin, partition, dower, do in person. &c. For in all cases where the writ commands the sheriff to go in "person, there the writ is his commission, from which he cannot deviate (a). Before the new sheriff return any writ into the courts of ^^^"'^ *^^ ""^^ Chancery y King's Bench, Common Pleas, or Exchequer, ^^ ^^^ ^,^1^ j^ he ought to make and have an attorney, or deputy of Chancery, ice. record, there to receive all manner of writs and warrants ^° appoint de- to be delivered to them ; and if any such sheriff shall do P" ^ ° the contrary, he shall forfeit 40 1, to the king and informer for every such default, and treble damages to the party 23 H. 6. c. 10. grieved. Eveiy sheriff shall make, and cause to be entered on King's Bench record, a sufficient deputy, to receive all manner of writs order to appoint and process, under the pains and penalties mentioned in "^P^^^*^^* the above statute ; and that sheriffs or their deputies shall give their personal attendance in Westminster-hall m term time (&). Each deputy, yearly before Hilary term, have Common Pleas- his name and place of his residence in London or Westmin- ° * ster set and continued up in tables in the office of the Prothonotary. By an order in the court of Exchequer, all sheriffs Exchequer or- shall assign their able attorney and deputy in that court, deputy!^^'*'^ sitting the court, to attend the court and receive and return all writs, &c. And every sheriff, on his giving a re- cognizance, shall deliver to the clerk in the Remembrancer's office the name of the attorney or deputy assigned (c). Also every sheriff of every of the twelve counties of Sheriffs of Wales, wad o^ iho. counties palatine of Lancaster, Chester coumLsmia- and city of Chester, shall have in every of the courts of tine to appoint King's Bench and Common Pleas one sufficient deputy, attornies in the at the least, to receive all writs directed to such sheriff for '"^ ^ (a) Hob.13,14. 6C0.I2. Dalt.34. (/<) E. 15 Car. 2. K. B. R. Jenk. 181. 2 Inst. 390. 4 Co. Go. M. 1054. C.P. Dyer, 204. (c) Ord. 6c R. in Exq. R. 45. p. 20. D 3 38 23 II. 6. c. 9. 1 Ed. 6. c. 10. 5 J:d. G. c. 20. Notice to under- sheriff's agent. Durham. 31 El. c. 9. Under-sheriff usually performs the office. 42 Ed. 3. c. 9. 23 H. G. c. 7. I fl. 5. c. 4. UNDER SHERIFF. whom the same deputy or deputies shall be appointed, in like manner and form, and upon like pains, as by the laws and statutes of this realm other sheriffs of other shires withui this realm of England be bound to have in either of the same courts. Notice to an under-sheriff's agent in town is not evi- dence of notice to the sheriff in an action against him {d). But notice to the sheriff's attorney is equivalent to notice to his under-sheriff to produce warrants, &,c., which have been returned to the under-sheriff (e). The Sishoj) of Durham, and, during the vacation of the said bishopric, the Chancellor of the said county palatine for the time being, shall have one sufficient deputy at least in the said courts of the King's Bench and Common Pleas, to receive all writs of proclamation directed to such Bishop or Chancellor, under penalty of 40 1. It has been already said that the under-sheriff usually performs all the duties of the office, a veiy few only ex- cepted, where the personal presence of the high sheriff is necessary. And assignments by him under the seal of office, good ; his acting as under-sheriff is sufficient evi- dence of his authority to execute all instruments neces- saiy to be executed by the sheriff, without proof of such authority by deed (/). But no under-sheriff j nor sheriff's clerk, shall abide in his office above one year ; and if he does, he forfeits 200 1., a very large penalty in those earlier days, (except the under-sheriff and officers within London, (and Bristol, by 6 H. 8. c. 16.) and such as are heritable). And no under-sheriff or sheriff's officer shall practise as an attorney during the time he continues in such office. And by rule, 3Iich. 1654, K. B., if he does, he is to be expelled from the employment of an attorney, and not to be re-admitted, for this would be a great inlet to partiality and oppression. But these salutaiy regula- tions are shamefully evaded, by practising in the names of other attornies, and putting in sham deputies by way of nominal under-sheriffs ; by reason of which, says JDal- ton{g), the under-sheriffs, sheriffs' clerks, and bailiffs, grow so cunning in their several places, that they are able to deceive, and it may well be feared that many of them do deceive, both the king, the high sheriff, and the county. (d) Gibbon v. Coggon, 2 Camp. (/)Doe v. Brown, .5 B & A. 243. 188. '^ Hob . 13. (e) Taplin v. Att -Gen. 3 Bing. (^) C. 115, p. 454. 1G4. UNDER-SHERIFF. ByS G. l.tlie following oath shall betaken by all under- c. 1.5. slierifis of" any county or counties in South Britain, {ex- cept the counties of Wales, and county palatine of Ches- ter,) before they enter upon the execution of their offices respectively : " I, A. B. do swear, that I will well and truly serve the Oaili of the « King's Majesty in the office of under-sheriff of the county "n'l«^i-sl'enff. " of and promote His Majesty's profit in all things "■ that belong to the crown : I will not assent to decrease, " lessen, or conceal the king's rights, or the rights of his " franchises ; and whensoever I shall have knowledge that " the rights of the crown are concealed or withdrawn, " be it in lands, rents, franchises, suits, or services, or in " any other matter or thing, I will do my utmost to make " them be restored to the crov.'n again ; and if I may not " do it of myself, I will certify and inform some of His *' Majesty's judges thereof; I will not respite or delay to " levy the king's debts for any gift, promise, reward or " favour, when I may raise the same without great griev- " ance to the debtors ; I will do right as well to poor as '< to rich, in all things belonging to my office ; I will do " no wrong to any man for any gift, reward or promise, " nor for favour or hatred ; 1 will disturb no man's right, " and will truly and faithfully acquit at the Exchequer all " those of whom I shall receive any debt, duties, or sums *' of money belonging to the crown ; I will take nothing " whereby the king may lose, or whereby his right may " be disturbed, injured, or delayed ; I will truly return and " truly serve all the king's writs to the best of my skill *' and knowledge ; I will truly set and return reasonable *' and due issues of them that be within my bailiwick, ac- " cording to their estates and circumstances ; and make '* due panels of persons able and sufficient, and not sus- *' pected, or procured, as is appointed by the statutes of <' this realm ; I have not bought, purchased, or taken to ♦' farm, or contracted for, promised, or given any con- " sideration whatsoever, by myself, or any other person <' for me, or for my use, directly or indirectly, to any " person or persons whatsover, for the office of under- " sheriff of the county of which T am now to enter " upon and enjoy, nor for the profits of the same, nor for *' any bailiwick thereof, or any other place or office belong- " ing thereunto ; I have not sold or concracteil for, or let " to farm, nor have I granted, or promised, for reward or " benefit, by myself or any other person for me, or for my " use, directly or indirectly, any bailiwick tbereof, or any *' other place or office belonging thereunto ; 1 will truly " and diligently execute the good laws and statutes of " this realm ; and in all things well and truly behave my- D 4 3;) 40 How and by whom to be administered. s. 11. Must take the oaths of alle- giance. Vid. supra p 13. 2n::i.c.l2.s.2. To have no es- tate or interest in the office. Caution to she- riffs to take se- curity. Condition of " 1. Sond. " 2. "3. " 4. " 5. " 6. " 7. " 8. " 9. UNDER-SHERIFF. " self in my said office for His Majesty's advantage, and " for the good of his subjects, and discharge my whole " duty according to the best of my skill and power. So " help me God." " Which said oath is to be administered by such com- " missioners as shall be named and authorized to admi- " nister the foregoing oath to the high sheriff in the county, " when and so often as a commission or dedimus shall be " sued forth of the proper court for that purpose, or by *' the barons of the said court, or one of them, when the " said sheriffs desire to be sworn in town." He was also required to take the oaths and declaration in the same manner as the high sheriff, and within the same time. And no under-sheriff shall intermeddle with his office before he hath also taken the said oath of office, or, in Wales, that mentioned in 27 El. c. 12, against corruption in impannelling juries, on pain to forfeit 40 /., one half to the queen and the other to the informer ; to be sued for by bill, plaint, or information, in any of the queen's courts. Before this statute the under-sheriff was never sworn (h). The under-sheriff hath not, nor ought to have, any estate or interest in the office itself ; neither may he do any thing in his own name (^), but only in the name of the high sheriff, who is answerable for him, because the writs are directed to the high sheriff. If (k) the high sheriff will sleep quietly, and take his repose in safety, he shall do well and wisely to look for and to take good security from his under-sherifi' before he do trust him with his office, which security is com- monly by bonds and covenants, taken by the high sheriff of the under-sheriff and his friends. To save the said high sheriff harailess. To make account in the Exchequer, and procure the high sheriff's discharo;e. To return juries with the privity of the sheriff. To execute no process of weight \\ithout the sherifTs privity. To accompt to the sheriff, and attend him. To be ready to attend the sheriff. For his good behaviour in his office. To take or use no extortion. To give attendance at the king's court." (/i) 1 Roll, E. 271. (0 Salk. no. (A) Dalt. c. 2. p. 20. COUNTIES IN ENGLAND AND WALES. 41 The sheriffs of London have two secondaries, who act Secondaries as under-sheriffs of London, and each sheriff hath an °^^^;;'JJ^'^3^, office wherein the business is transacted, the one called the Poultry Compter, the other the Giltspur-street Compter. They are the principal officers, and next to the sheriffs ; and the business transacted by them is the granting of warrants on all writs issued from the courts above, impannelling juries to appear in those courts, and in the court of session, and attending the sheriffs when required. The secondaries have purchased their places of the city of London from time immemorial. No sheriff of London and Middlesex shall take any No sheriff of sum or present for the execution of the place of under- presents ^of'^ ^ sheriff, nor oblige him to be at any expense in relation under-sheriffs, thereto which has been usually borne by the high sheriff, except the rewards given by any act for apprehending highwaymen, clippers, coiners, and housebreakers, and the fees for passing the high sheriff's accounts in the Exchequer, and such other disbursements as have been customarily sustained by the under-sheriff. 5 Ann. c. 31. Sheriffs and under-sheriffs shall receive all manner of Sheriffs and writs in any place, and at all times, within their county, under-sheriffs when and wheresoever they shall be delivered them, ^anants"^ without taking of any thing other than such fees as the law alloweth, and shall make thereof warrant. COUNTIES IN ENGLAND AND WALES. In England 40. — Bedford; Berks; Bucks; Cam- bridge ; Chester, Co. Pal. ; Cornwall ; Cumberland ; Derby ; Devon ; Dorset ; Durham, Co. Pal. ; Essex ; Gloucester ; Hereford ; Hertford ; Huntingdon ; Kent ; Lancaster, Co. Pal.; Leicester, Lincoln; Middlesex; Monmouth ; Norfolk ; Northampton ; Northumberland ; Nottingham; Oxon; Rutland; Salop; Somerset; Staf- ford; Suffolk; Surrey; Sussex; Southampton; War- wick ; Westmorland ; Worcester ; Wilts ; York. In Wales, 12. — Anglesey; Brecon; Cardigan; Carmarthen ; Caernarvon ; Denbigh ; Flint ; Glamor- gan ; Merioneth ; Montgomery ; Pembroke ; Radnor. The Counties Palatine. — Lancaster ; Chester ; Durham. 42 CouDties coipo- rate. All actions for bleach of duty of the office, to be brought against the she- riff, thougli by default of the under-sherltf. Writs deli- vered now to the under-sheriff, who makes out the warrants. COUNTIES I\ ENGLAND AND WALES. The Cinque Ports, 5. — Dover; Sandwich; R,om- iTfcy ; Hastings and Hythe. To which Wmchelsea and Rye are added. In the time of Edward the Confessor there were but three ports, Dover, Sandwich and Romney ; but in the time of William the Conqueror, Hastings and Hythe were added {I) ; and in 1 Juhn, Winchelsea and Rye. The warden of the Cinque Ports is an officer, who has been appointed time out of mind, Sec. for the custody of the ports (m). And he is constable of the castle of Z)oyer. The constable of the castle of Dover executes all writs in the Cinque Ports. There are also counties corporate^ which are certain cities and towns, some with more, some with less terri- tory annexed to them ; to which, out of special grace and favour, the kings of England have granted to be counties of themselves, and not to be comprised in any other county, but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are the Cities of Bristol, Coventry, Chester, York, Glouces- ter, Lincoln, London and jNTorwich, having two sheriffs : Canterbury, Exeter, Litchfield and Worcester, one sheriff. Towns of Kingston-upon-Hull, Southampton, Notting- ham, Poole, Newcastle-upon-Tyne, Haverfordwest and Carmarthen, one sheriff. If an action is brought for a breach of duty in the office of sheriff, the action must be brought against the high sheriff as for an act done by him, and not against the under-sheriff; and if it proceeds from a fault of the under-sheritr, or bailiff, that is a matter to be settled between them and the high sheriff (/?)• All writs and process directed to the sheriff are usually delivered to the under-sheriff, to make out warrants thereon to the bailiff, in the high sheriff's name ; or he may make out such wan'ant to any stranger. A writ of ca. sa. into a county palatine should com- mand the chamberlain, that, by the king's wTit, under the great seal of the county palatine, he the chamberlain should command the sheriff to take, &c. and not command the chamberlam to take, &.c. which has been held bad (o). (0 4 Inst. 222. 2 Inst. 556. (m) 4 Inst. 223. (»() Cameron v. Reynolds, Cowp. 403. (o) Bracebridge v. Johnson, 1 Br. & Bing. 12. BAILIFFS. 43 So an alias capias directed to the sheriffs of the city of Chester y and county of the same city (7)). If tlie sheriff make an under-sheriff, of necessaiy conse- quence he gives him power to make baihifs and precepts, without acquainting him therewith, and this he can do by virtue of his deputation (q) ; for he cannot abridge him of his power, no more than the king can the sheriff himself (r). If a writ be subtracted by a sheriff's deputy, it is said Xot to grant the deputy himself maybe punished (s), unless bailed: a" extract of »i I • I 4. I- J.^ r i.- • writ till bailed, then he may give an extract lor the purpose of puttmg m bail. Sailiffs. TT is impossible for the high sheriff and under-sheriff High sheriff to execute all writs and process directed to them ; "^yj?PP°'"^ therefore the high sheriff may, for that pui-pose, empow^er cute warrants" a bailiff in each hundred to execute such writs, and, if he pleases, may appoint a special bailiff on any certain occasion; and he may take security from them, as he is answerable for their acts. But he cannot abridge them of their power (i!). The officers of the sheriffs are of three kinds ; first, bailiffs in fee, or perjjehial bailiffs, who have bv charter or prescription the execution of writs within the guildable; secondly, common bailiffs, who are usually bound with sureties to the sheriff in an obligation for the due execu- tion of their office, and thence are called bound bailiffs ; thirdly, special bailiffs, nominated by the plaintiff or his attorney, and appointed by sheriff, ^")ro hdc vice (u). Bailiffs or sheriff's officers are either bailiffs of hun- Bailiffs. dreds, or specicd bailiffs. Bailiffs of hundreds are officers appointed over those respective districts bv the sheriffs, to collect fines, to summon juries, to attend the judges and justices at the assizes and quarter sessions, and also to execute writs and process in the several hundreds. But as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of servino- (p) Bradshaw i-. Davis, 1 Ch. R. (s) Leon. 14G. pi. 203. Cro. El. 374. 175. pi. 1. ( \^o\^^A ITS (0 Dalt. 103. Keilw. 86. Stil. (<^) 12 Mod. 468. 18 2Brownl.283. (>•) 2 Brownl. 281. Hob. 13. (u) Tidd. 93. Dalt. 18,5, 187. Cro. El. 440. 2 Bl. Kep. 9o2. 4 T. K. 129. 44 Serjeant at mace for Lon- don to execute process. Sheriffs answerable. BAILIFFS. writs and making arrests and executions, it is now usual to join special bailiffs with them (x). The sherifi" being answerable for the misdemeanors of these baihffs, they are therefore usually bound in an obligation for the due execution of their office, and thence are called bound bailiffs. It has been repeatedly held, that if a special bailiff be appointed on the nomination of the plaintiff, the plaintiff must take the consequence of the acts of his bailiff. But where the sheriff of Cumberland (who has no bound bailiffs) was ruled to return the writ, the party had been arrested by plaintiff's special bailiffs, and after- wards rendered into custody, being also in the sheriff's custody at suit of a third person, upon whose debt being satisfied, the court held it to be the sheriff's duty to inquire if there were any other detamers against him before he pennitted him to be discharged (y). For the court has considered them as the acts of the plaintiff himself, and has refused to call on the sheriff to return the writ in such cases {z). The mere indorsement of the officer's name on the writ is not evidence of his authority from the sheriff (a) • and if the officer be called, he is a witness for all pui-poses, though, in fact, the real party in the cause. But it is sufficient to connect him with the bailiff to pro- duce the writ with his name indorsed upon it without the warrant, and showing it to be the custom to indorse the name of the officer executing it (b). There are thirty-six Serjeants at mace in London, who may be termed bailiffs, for they execute all warrants granted by the sheriffs on mesne process and executions in London, and perform the same business as bailiffs. These Serjeants at mace have each a yeoman, to attend them on the execution of process, &c, and each serjeant gives 800 Z. security to the sheriffs for the faithful dis- charge of his office. But for that sheriffs may not let their bailiwick to farm, therefore when they put in bailiffs they be but as under bailiffs to the king, and the sheriff is the high bailiff, and the other the sheriff's servants, and therefore he shall an- swer for them if they offend in their office (c). (x) 1 Bl. Comra. 345. (y) Taylor v. Richardson, 8 T. R. 505. 2 Esp. N. P. 591. 2 Bl. 952. 4T. R 119. (s) De INIoranda v. Dunkin, 4 T. R. 120. S. P. in C. P. Hamilton t;. Daziel. Hil. 1774. Clarke v. Pal- mer, 9 B. & Cr. 153. (a) Hill V. Sh. of Midd. 7 Taunt. 8. ( b) Morgan v. Bridges, 2 Stark. X. P. 315, Tealby !'. Gascoigne, Id. 202. (f) Doct. & St. 136. BAILIll' S DUTY. 4it By 14 Ed. 3. sheriffs shall appoint such bailiffs for c. 9. whom they will answer. No sheriff's bailiff shall be Must not be attorney in the king's courts during the time he is in »" attorney. oince(c). The sheriff's bailiffs are to take the oaths appointed by Bailiffs to take stat. 27 El.; they are to be sworn to the supremacy, and oaths, &c. for the exercise of their office, under the penalty of 40/., ^- ^^' and if they commit any act contrary to their oath, they shall lose treble damages. No sheriff's officer, bailiff, or other person concerned Not to be bail in the execution of process, shall be permitted to be bail »" any action. in any action {d). Nor shall they exact from any person Nor take any in their custody by arrest, any warrant of attorney to warrant of acknowledge a judgment but in the presence of an ^^'o'""^)'' attorney for the defendant, which attorney shall then sub- scribe his name thereunto, upon pain of being severely punished {e). These rules are the same with respect to the keeper of the Poultry and the Marshalsea-court officers. The Bailiff's Duty. nPHE sheriff, or other officer, to whom any writ or war- Bailiff's duty. ■■■ rant shall be directed and delivered, ought with all speed and secrecy to execute his said writ or warrant, according as the same commands him : besides, he is bound to pursue the effect of his wai'rant, in every behalf, otherwise his warrant will not excuse him. A sworn and known officer, (be he sheriff, under-sheriff, a sworn and bailiff or serieant), need not show his warrant or writ when known officer 1 , • , > 1 need not show he comes to serve it upon any man s person or goods, j^-^ ^^j^iiant. although the party demands it: but a special bailiff, or other person, who is no sworn and known officer, must show their warrant to the party, if he demands it, or other- wise the party may make resistance, and need not obey it (/). And it behoves every bailiff to keep his warrant, ?,^ .!!'. 'a ^7!?' 4 so that he may justify the imprisonment (^). 14. 14 h. 7. 0. Although a sworn and known officer need not show his He ought to warrant, yet upon the arrest he ought to declare the con- declare the tents thereof, {inz. at wlwse suit, for- what cause, out of ^^^^ ^" ^" what court, and when returnable), to the end that if it be (c) R.M. 1G54. K. B. (e) R. E. 15 Car. 2. 1 Lill. Abr. (d) R.M. 14Geo.2. 2Str.890. * Vf •^ o r ro 2B1.R.7). If he make no return at all, he may certify that he issued his mandate to the bailiff, who has made 49 ]Vo« omittas may issue in the first in- stance, and be executed liy the sheriff. If bailiff of a liberty arrest, to take bail and H, r. c. 10. Writ must not be directed to the bailiff. Bailiff no autho- rity out of the franchise. c. 24. To be amerced for insufficient returns, and may be sued for a false return. On return that the bailiff has the body, a rule may be made on him to bring in the body. To take the 23 H. 6. c. 10. To attend justices of assize, &c. 27 H. 8. c. 24. So lords or their bailiffs of franchises : 20 Ed. 4, 6. Sheriff not to make any other return than the bailiffs. no answer. (s) 9 East, 330. (t) Dalt. 4(i0. (u) 3 East, 128. 1 Ch. R. 374. (j) Fitich. 54. 1 T. & Br. 12. (y) 2 T. R. 5. (s) Dalt. 459. (a) Br. Forf 115. (6) Keilw. 3 G. do If sheriff enter ■without a 7ion omittas, and execute writ, good. The lord may have action, not the party. GAOLERS. Who is to claim a prison as a franchise. If bailiff of a liberty dies. Bailiff of a liberty liable to action of debt for an escape. To certify names of pri- soners at assizes, &c. 3 H. 7. c. 3. If the sheriff, or his officers by his command, enter tlie franchise without a non omittas, and make execution of the king's writ, it is good ; but the lord of the franchise may- have his action against the sheriff or officer for the entry. But the party so taken shall have no remedy (c). And no action can be supported by the bailiff of a li- berty for wilfully and maliciously suing out a capias with a no7i omittas clause, in the first instance, where such a practice has long prevailed (cZ). A bailiff executing a writ without the non omittas clause in a liberty is a trespasser, and if killed, it is only homicide (e). Sheriff having once taken a party, though in a liberty, without any non omittas clause, is bound to keep him in custody (/). None can claim a prison as a franchise unless they have also a gaol-delivery (g). If the bailiff of a liberty dies after he has returned cepi corpus, a distringas issues against his successor, because he takes it up under the return of his prede- cessor (h). The bailiff of a liberty who has the return and execution of writs is liable to an action of debt for an escape if he remove a prisoner taken in execution to the county gaol, situate out of the liberty, and there deliver him to the sheriff's custody. The sheriff is discharged when he re- turns that he has commanded the bailiff, and returns the bailiff's answer ; and after such return the bailiff must be ruled to bring in the body, and not the sheriff (i). Bailiffs of franchises having authority of keeping gaols in their liberty, shall certify the names of the prisoners in their keeping at the next general gaol-delivery in that county of francliise {k). Gaolers. Gaolers are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all persons as are committed to them by lawful war- rant; and if they suffer any such to escape, the sheriff shall (c) Fitz. 9.5, 6. Dalt. 464. (g) .«alk. 343. (d) Carrett v. Smallpage, 9 E. R.330. (/*) Gilb. C. P. 31. (e) R. «. Mead, 2 Stark. 203. (i) 2 T. R. .5. (/) Piggott u. Wilkes, 3B.&A 502. (A.) Dalt. 46.5. ' GAOLERS. 51 answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured (I). By 14 K 3. c. 10. " The gaols shall be rejoined to the sheriffs, and the Sheriffs to " sheriffs shall have the custody of the same as before; ^laj/e thecus- " and they shall put in keepers, for whom they shall answer, y^ r°2^c*^ 15 By 19 77. 7. c. 10. " Every sheriff shall have the custody of the king's com- To have cus- " mon gaols in ,the county where he is sheriff, except goals tody of gaols " tvhereqf anj/ person, or body corporate, have the keeping of '" *'^^ county, " estate of inheritance. Provided that no sheriff have the ^^'^^P*' ^' " custody of the King's Bench and Marshalsea." Every county hath two sorts of gaols, one for prisoners Every county by the sheriff taken for debt, and this the sheriff may ap- '^^° S^°^^* point in any house, or where he pleases ; the other is for breach of the peace and matter of the crown, which is the county gaol (w). By the 22 and 23 Car. 2. c. 20. s. 13. " It shall not be lawful for any sheriff or gaoler to lodge Prisoners for " prisoners for debt and felons together in one room, but ^^"^^ ^"^l " they shall be kept a part, upon pain that they that offend ['^'".^t 'th^ *'' " against this act shall forfeit their office and treble da- " " mages to the party grieved." By the 1 Ann. those taken on an escape-warrant are to c. 6. be sent to the county eaol. Escape •' ® prisoners. Though the sheriff may move his gaol from one place Sheriffs must to another witliin his bailiwick, yet he must keep it and ''^.'^P ''i^''' his prisoners within it, and not suffer them to go at large in^!.^is* out of the prison, though he himself attends them (w). By 32 G. 2. power is given to the lord chief justices of c 28. s. 5. the K. B., C. P., and the lord chief baron of the Exche- t^^filwa quer, or any two of them, with the mayor and two alder- of fees for men, or with three aldermen o^ London without the mayor, gaolers. for the prisons within the said city ; and the said lord chief justices and chief baron, or any two of them, with three justices of peace of the counties of Middlesex and Surrey respectively, for the prisons in the said counties respec- tively, to settle a table of fees to be taken by any gaoler in London, or in Middlesex and Surrey, where the same is not established ; and where established to vary (l) 4 Rep. 34. 2 Inst. 592. («) Hob. 202. Latch, 16. 1 Sid. (m) Latch 16. 1 And. 345. 318. E 2 4i2 Gaolers to cause them to be hung up in public room. Free resort to them in the day-time. 32 Geo. 2. c. 28. s. 10. s. 12. Gaols for safe custody, and not for punish- ment of debtors, and prisoners ought to be used with humanity. Prisoners not to be put in irons except in certain cases. C.46. GAOLERS. same as requires. And the justices of every other county and place, for the prisons of each county, are, at any general or quarter session of the peace, to settle a table of fees, and to alter the same ; which table of fees shall be signed by them. And the table of fees for the prisons, (except London, Middlesex and Surrey,) shall be confiniied and moderated by the justices of assize; and if within Wales or Chester, by the justices of great sessions, at the next assizes or great sessions next after the making or altering' such table of fees. "^ Gaolers shall forthwith after the receipt thereof, or rules made for the better government of the prisons in England, cause the same to be hung up in some public room or place, and in a conspicuous manner, in his prison ; and it shall be incumbent on such gaoler to take care the same be kept up there, so as the prisoners may have free resort thereto, at seasonable times in the day-time, with- out paying any thing for the same. And also a table of gifts and legacies (when transmitted) shall forthwith be hung up by the gaoler, in a conspicuous manner, in some public place in his prison, and where the prisoners may have free resort thereto, without fee. And no keeper shall take of any prisoner for debt, damages, costs, or contempt, any greater fees, on forfeiture to the party grieved 50 1. with treble costs, by action of debt, &,c. in any court of record at Westminster. Gaols are for safe custody, and not for punishment, (unless on the criminal side), therefore prisoners ought to be used with the utmost humanity, and not subjected to other hardships than such as are absolutely requisite for the purpose of confinement only ; nor should any prisoner be put in irons but such as have been apprehended for felony or trespasses committed in parks or vinaries, and those who have been found in arrear upon account, ex- cept the prisoner be unruly, and the officer hath just rea- son to fear an escape (o). A Secretary of State may commit to safe and close cus- tody ; a justice can only commit to safe custody; and the 31 G.'d, giving justices a power of visiting gaols, does not authorize them to visit prisoners committed to close custody by the Secretary of State (p). (o) Britton, c. 11. s. 5. 2 Inst. 316, 381. 3 Inst. 34. (p) Rex V. Eastaff, 1 Gow. N. P. R. 138. GAOLERS. 63 If a prisoner's death be owing to cruel and oppressive If death be usage on the part of the gaoler, or any officer of his, it will °^"^ '° be deemed wilful murder in the party guilty; therefore, if a prisoner dies, whether by disease or accident, the coroner is to take inquisition of the death, and the gaoler must give notice to the coroner of such death. A gaoler knowing that a prisoner infected with the What is deemed small-pox lodged in a certain room in the prison, confined "murder. another prisoner against his will in the same room. The second prisoner, who had not had the distemper, of which the gaoler had notice, caught the distemper, and died of it ; this was held murder in the gaoler (q). A gaoler cannot receive any person on the civil side Gaoler cannot without the officer's warrant to detain him ; and if he re- '^'^^^'^^ ^'^y 11- 11- 1 1111 person on the luse to take him, and the prisoner escape, the gaoler shall civil side with- not only answer the debt, (in case the sheriff is obliged to out warrant : pay,) but be fined for such refusal. ^ ^^- ^- *^- ^*^- If one in prison for a debt make an escape, the gaoler, If escape, &c. may take him again (r). feteke."^^^ Gaolers cannot take obligations from their prisoners, to Gaoler not to be true, for enlargement, or meat and drink ; if they do, take bonds of such obligations are void (s) ■ for the gaoler is in a man- P'''s°"^'^^- ner bound to find victuals for his prisoners. As the gaoler is but the sheriff's servant, therefore he Sheriffs may- may discharoe him at his pleasure ; and if he refuses to discharg-e •^1 ^ • ■ i' 1 1 ii 1 -ii- gaoler at surrender up or quit possession of the gaol, the sherin may pleasure, turn him out by force, as he may any private person ; also they are each of them so far under the regulation of the court of King's Bench that they will compel the sheriff to assign prisoners, 8lc. and gaolers to surrender up gaols, &,c. (^). If the sheriff's gaoler suffer a prisoner to escape, the If gaoler suffer* action must be brought against the sheriff, not agamst the J'^^JP ^ro^ugh" gaoler ; for an escape out of the gaoler's custody is, by in- against the tendment of law, an escape out of the sheriff's custody (^^). sheriff. Where actions for escapes are said to lie against gaolers, When actions such absolute gaolers are mtended as writs are directed to ; aglin^sf gaolSs, yet it hath been holden by Holt, C. J. that an action lies mean gaolers for a voluntary escape against the gaoler, as well as against absolute, to the sheriff, it being in nature of a rescue (x). rreXSl (g) 2Str. 856. (0 Reg. 29. (r) 3 Co. 44, 52. (m) 2 Lev. 159. 2 Jon. 62: 2 (s) 10 Co. 100. b. Plowd, 68 Mod. 124. 5 Mod. 414, 416. 9 Co. 17. b. (i) 2 Salk. 411. 3 lb. 18. e3 54 Punishmeiif. c. 15. s. 10. Liable to be attached for gross misbe- haviour, or for not obey- ing rules of court and writs. Victuals. c. 22. s. 16. Rent, c. 16. 14. c. 41. s. 6. Definition of the word arrest. When said to be arrested. None to be arrested for debt but by a precept or warrant. The king can- not command any one by word of mouth to be arrested. JVor cau he ARREST. The 3 G. I. directs how gaolers shall be punished for buying, selling, or fanning their offices. They are not only punishable by attachment, as all other officers are, by the courts to which they more im- mediately belong, for any gross misbehaviour in their offices, or contempts of the rules of such courts, but they are also punishable by any other courts for disobeying writs of habeas corpus awarded by such courts, and not bringing up the prisoner at the day prefixed by such writs (y). And the 2 G. 2. inflicts a penalty of 50/. on the gaoler for not permitting prisoners to send for victuals from what place they please, or to have such bedding as they thmk fit. And by the 8 & 9 W. 3. no prisoner shall be compel- lable to pay rent for any chamber in any prison for any longer time than he shall be in possession thereof, nor to pay above 2 s. 6d. b. week for such chamber, under the penalty of 20 1. A gaoler detaining a party under a magistrate's war- rant is within the protection of the words " other officer," in 24 G. 2. without reference to the legality of the war- rant (z). Arrest on Mesne Process. A RREST in common law is the apprehending or re- -^^ straining of one's person, in execution of the command of some court, or officer of justice. When a person is legally stopped, apprehended, and resti'ained of his liberty for debt, &c., he is said to be arrested, or put under an arrest ; which is the beginning of imprisonment. None shall be arrested for debt, trespass, &c. or other cause of action, but by virture of a precept or command- ment of some court ; but for treason, felony^ or breach of the peace, a man may arrest without precept or war- rant (a). The king cannot command any one by word of mouth to be arrested for a debt, but he must do it by writ, or order of his courts, according to law; nor may the king arrest any man for suspicion of treason or felony, as his (y) 2 Haw PI. Cr. 1.51. s. 31. (s) Butt i;. Newman, 1 Gow. N. P. R. 97. (a) Terms de Ley, 54. ARREST. subjects may, because if he doth wrong, the party cannot have an action agamst him (6). An arrest may be made without warrant, where there are circumstances forming a sufficient presumption of the party's guilt (c). Where a misdemeanor has been com- mitted, an officer executing process cannot j ustify break- ing doors until after a demand of admittance. So even in executing a criminal process {d). An arrest must be " by corporal seizing or touching the " defendant's body;" after which the bailiff may justify breaking open the house m which he is, to take him : otherwise he has no such power, but must watch his op- portunity to arrest him. For every man's house is looked upon by the law to be his castle of defence, and asylum, v^hereinhe should suffer no violence (e). If told to follow the officer, but who never touched him, held no arest (f). So where notice only sent to apprise the party of the writ by the officer (g). It is said, however, in some cases, that an actual touch is not necessary to constitute an arrest, as if a man be locked up in a room, that will be sufficient, he being then in custody (h). But a mere suspicion that the party is secreted in an inner room of the house of a stranger is no j ustification for breaking inner doors to search. But otherwise when the goods are within the room(i). And the distinction is, between the house of the defend- ant and of a stranger, in the former case he may justify an entry to look for the goods, but in the latter it is at his peril whether the goods be found there or not, if they be not, he is a trespasser. An administrator cannot be considered a&a stranger (J). So where the officer executing mesne process had gained peaceable possession of the outer door, and found the chamber door firaily secured, held that he was justified in (h) 2 Inst. 186. (c) Guppy t'. Brittlebank, 5 Pri. 525. (d) Lannock v. Brown, 2 B. & A. 592. Burden v. Abbott, 14 East, 163. (e) 5 Co. 91. 3 Inst. 162. Dalt. 310. 6 Mod. 105. 1 Salk. 79. (/) 1 Ry. & JM. 26. himself arrest for felony, and wliy. How an arrest must be. Every man's house is his castle, therefore cannot break open outer door. Need not in all cases touch the party. (g) Arrowsmilh v. Le Mesurier, 2 N. R.211.n. (k) Berry v. Adamson, 6 B. & Cr. 528. (0 Johnson v. Leigh, 6 Taunt. 246. Hutchinson v. Birch, 4 Taunt. 627. (j) Cooke t'. Birt, 5 Taunt. 765. E 4 56 When he breaks open the house. Sheriff bound to execute process out of a court of competent iurisdiction, though erro- neous. ARREST. When a bailiff may break open door of a lodsrer. Cannot break an outer door. On a capias, &c. at suit of a common per- son,cannot break open house of defendant. If door be open, and bailiff comes and shows process, and offers to enter, and owner gaining admission by breaking through an outer back window, havino' first told the defendant he had process to serve {k). If a baiUff lays hold of him by the hand (whom he hath a warrant to arrest) as he holds it out of the window, this is such a taking of him that the bailiff may justify the breaking open the house to carry him away (Z). A sheriff is bound to execute process issuing out of a court of competent jurisdiction; and though there be no cause of action, or the process is erroneous, he is not responsible : the plaintiff himself, in such cases, is liable to an action for maliciously holding to bail. " It would be extremely hard indeed upon a sheriff or his officers if they were bound to inquire into the truth of an exemp- tion, and determine upon it at their peril." Per Ash- hurst, J.{m). But the service can only be within his own bailiwick, or it will be set aside, unless on the bounda- ries {n). A bailiff may, in execution of mesne process, break open the door of a lodger, having first gained peaceable entrance at the outer door of the house, and having demanded admittance at the inner door (o). But a door at the top of a staircase opening into a stable-yard may not be broken open (p). The sheriflf cannot break an oiiter door to arrest the defendant on mesne process or execution (q). And upon a capias, &.c. or other process, at the suit of a common person, the sheriff, after request to open the doors, and denial, cannot break the house of the defendant, and in such case the sheriff would be a trespasser, though the execution would be good (r). And yet, if the door be open, and the sheriff or bailiff come to the house, and shows the king's process, and offers to enter to execute the same, (being at the suit of any subject), and the oicner shuts the door agamst the sheriff, &c,, here the officer, " giving notice of the cause (k) Lloyd V. Sandilands, 2 B. Moore, 207. (0 1 Vent. 306. (m) Tarlton v. Fisher, Doug. 676. (n) Hammond v. Taylor, 3 B. &c Al. 408. (o) Lee V. Gansell, Cowp. 1 ; 2 B. & P. 223. (p) 1 Esp. 99. (g) Cro. El. 908. ()•) 5 Co. 92. b. Cro. El. 909. Moor, 668. Yelv. 28. March, 4. Cro. Car. 537. 1 Jon. 430, 1 Bulstr. 46. ARREST. " of his coming, and requesting to have the doors open,'" may break open the house, if the party refuses to open the door (s). The sheriff's officers, on mesne process, came to the house where the defendant lodged, and knocked at the door, whereupon the house-keeper's wife came to tlie door and opened it a little to see who was there, and the bailiffs presently, with their swords drawn, rushed in by force, and went up to the chamber-door where the de- fendant lay, broke it open, and hurt divers in the house. Held, that the entry was unlawful, for the opening of the door was occasioned by craft, and their entering in was by violence, for which they were all fined {t). The privilege of a man's house only extends to the owner, and shall not protect any person who flies thither, nor the goods of any person conveyed, to prevent any lawful execution, or to escape the ordinary process of law. And therefore if the sheriff, having process against a stranger, do desire to have the door opened, or to have the body of the party flying thither, after such request, if denial or refusal be made, or that it be not done, then the sheriff or his officers may break open the house, and execute the process without any danger of law (m). But, notwithstanding the general rule that the sheriff cannot break the outer door to arrest at the suit of the subject, yet in all cases, it is said, where the king is party, if the door be not open, the sheriff may break the door of the party, either to take him, or to execute the pro- cess, if he cannot otherwise enter therein ; but, before such entry, he ought " to signify the cause of his coming, " a7id make request that the doors mag be opened'' (v). So, upon a cap. utL, though on mesne process, and at the suit of a subject, the officers may break open any outward doors, after demand and refusal (w). And in all cases where the king hath any interest, the writ is quod non omittas propter aliquam libertatem ; and therefore the privilege of any man's house will not hold against the king (x). 57 shuts door, officer gives notice, &c. may exitei'. Cannot enter witii swords drawn, &c. Or by craft. The privilege of a man's house extends to the owner only, and not to a stranger. Therefore, if stranger fly into the house, the bailiff may enter, &c. In all cases where the king is party, he may break open the doors ; but he must first signify the cause : 13 E, 4. 9. Capias uthii^a- tiun, though on mesne process. And in all cases where the king hath interest may enter. (s) 5 Co. 91. Dalt. 351. (t) Dalt. 528. Waterhouse v. Saltmarsh, Hob. 263, 2G4. (w) 5 Co. 93. (v) 4 Co. 91. Fitz. Barr. 110. Br. Exec. 100. (w) 2 Show. 87. R. v. Birn, 19 Vin. Abr. 433. (i) Dalt. 350. 58 If lie enters, and owner locks him in, sheriff may enter to release. Locking in bailiffs, court will grant an attachment. If one escapes after arrest, maj' break open. Cannot break in at windows. If resisted, and the party mak- ing resistance is killed, justi- fiable in the officer. Murder to kill the officer. If defendant flies, and is pursued, and in the pursuit, officer kills him, murder. Arrest in the night, as well as day, lawful. After an arrest on mesne pro- cess, bailiff may let pri- soner go, pro- vided he has him at the return of writ. ARREST. If the sheriff's bailiffs enter the house, the door being open, and the owner locks them in, the sheriff may jus- tify breaking open the door for the enlarging and setting at liberty the bailiffs ; also, it seems that in this case the locking in the bailiffs is such a disturbance to the execution that the Court will grant an attachment for it(i/). So, if one be arrested, and after escapes into his house, the sheriffs may break open the doors to take him : as where one opened his casement, and the sheriff took him by the hand (z). A bailiff cannot break in to arrest at the window of a house, for windows and outer doors are intended for security of the house against persons from without endea- vouring to break in (a). Where persons having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and the party making resistance is killed in the struggle, this homicide is justifiable. And, on the other hand, if the party having authority to arrest or imprison, using the proper means, happen to be killed, it will be murder in all who take a part in such resistance ; but if a defendant, in a civil suit, being apprehensive of an arrest, flieth, the officer pursueth, and in the pursuit killeth him, this, saith Lord Hale, will be murder (b). An arrest in the night, as well as in the day, is lawful, and as well at the suit of a subject as at the king's ; for the officer or minister of justice ought to arrest him when he can find him, for otherwise, perhaps, he will never arrest him (c). After an aiTest on me&ne process, the bailiff may suffer the prisoner to go at large, provided he has him at the return of the writ. But it is otherwise on an execution, for if he voluntarily permits him to go, though only for a minute, he cannot afterwards retake him {d). False imprisonment will not lie for such a recaption (e). (t/) Cro. Jac. 555. 1 Roll. R. 132, White V. Whitshire, Palm. 52. (s) 1 Roll. R. 138. Palm. 54. G Mod. 173. («) Foster's C. L. c. 8. s. 20. (6) Hale P. C. 481. (c) 8 Co. 37, b. Salk. 322. pi. 8. 6 Mod. 130. (d) 2 T. R. 176, 7. Atkinson v. Mattison, and see 7 T. R. 109. (e) 1 Salk. 408. Noy^ 72. ARREST. 59 He cannot arrest after the return-day, either by origi- Cannot arrest nal or hillCf) ; and although he have the party in custody ^'jj;'/"^""' °^ the day after, the plaintiff ui an action for not arresting- will be entitled to damages {y). In an action of false imprisonment against an officer, the question of probable cause for apprehending is a ques- tion of law, and cannot be left to a jury {h). Of the Warrant on the Writ. Although all writs and process are directed to the Sheriff never sheriffs of the different counties, yet he never executes ^iT but grants the same himself, but his under-sheriff usually makes his warrants. warrant to his bailiffs or officers, for the execution of such writs. And these warrants must be made according to the Warrants must nature of the writ, and contain the substance thereof, and be according to be made out in the high sheriff's name, and under the madTin^'name seal of office. of iiigh sheriff. By 6 Geo. 1. no high sheriff, under-sheriff, their depu- c. 25. s. 53. ties or agents, shall make out any warrant before they j^*' warrant to have in their custody the writs upon which such war- without^the rants ought to issue, on forfeiture of 10/. And every writ. warrant to be made out upon any writ out of the King's ^^^ ^" Y^^- Bench, Common Pleas, or Exchequer, before judgment, ^^ \^^ j. to arrest any person, shall have the same day and year set down, set down thereon as shall be set down on the writ itself, under forfeiture of 10/., to be paid by the person who shall fill up or deliver out such warrant. s. 54. By 2 Geo. 2. every warrant that shall be made out c. 23. s. 22. on any writ, process, or execution, shall, before the ser- Every warrant vice or execution thereof, be subscribed or indorsed with ^^V^,. J „ , ' ,. . , name 01 attor- the name of the attorney, clerk in court, or solicitor, by ney subscribed. whom such process, &c. sliall be sued forth. But the But the not not subscribing or indorsing the name on any warrant doing of it, not made on any writ, &.C., shall not vitiate the same, but ^° vitiate same. such writ shall be valid and effectual, provided the writ whereon such warrant is made out be regularly sub- scribed or indorsed ; and eveiy sheriff or other officer jf ^^j-jt j^g ^^^ who shall make out any warrant upon any writ, process, subscribed. or execution, and shall not subscribe or indorse the name of the attorney, clerk in court, or solicitor, who sued out (/) Cro. El. 760. pi. 33. 1 Lev. (o-) Barker v. Green, 2 Bing, 143. 1 Sid. 229. 1 Keb. 718. 805. 317. Moore, 701. pi. 998, and 2 Esp. (/i) Hill v. Yates, 2 B. Moore, IN. P. R. 585. 80. 00 forfeits j I. 12 G. 2. V. 12. s. 4. Warrant he- fore arrest. "Warrant in K. li. Warrant in C.P. Exchequer. Chancerj'. Need not be shown unless demanded. Wanant, if demanded, should be produced. If warrant is altered. If demand is made, he must show. If directed to two, one may execute. If to four, or three. Sunday. ARREST. the same, shall forfeit 5/., to be assessed as a fine by the Court out of which such writ, &c. shall issue ; one moiety to His Majesty, and the other to the person aggrieved. See 12 Geo. 2. c. 12. s. 4. The warrant must be had before the arrest, or the arrest will be illegal, and the party grieved may have his action for false imprisonment, and the Court will direct tlie bail-bond to be cancelled (i). If the writ be sued out of the court of King's Bench, then the warrant must be, " So that I may have his body before the lord the " king," &c, If out of the Common Pleas, then it must be, " Before the justices of the lord the king," &c. If out of the Exchequer, then, " Before the king s barons of his Exchequer," &c. If out of Chancery, " Before the king in his court of Chancery, on," &c. These warrants need not be shown unless demanded, nor before the defendant peaceably submits to the ar- rest (k), provided the bailiff" is a known bailiff"; but a spe- cial bailiff must show his warrant. It is very important that, in all cases where an arrest is made by virtue of a warrant, the warrant (if demanded at least) should be produced (/). And if a name is inserted aftericards by the bailiff in the warrant, such warrant is illegal, and the arrest void (m). If the demand is made, he must then show his authority, because the party may free himself by payment of the debt, or agree with the plaintiff, or put in bail for his appear- ance (t^). If a warrant be directed to two men jointly, to arrest another, yet either of them alone may do it. If directed to four or three jointly or severally, yet two may arrest him, because it is for the execution of justice (o). Sunday. Service of process or arrest on Sunday is absolutely (i) 4 Bac. Abr 452. Hall v. Roche, 8 T. R. 187. (fc) Cro. Jac. 485.486, (/) Hall V. Roche, 8 T. R. 188. (in) Housin t . Barrow, G T.11.122. (n) Cro. Jac. 485, 486. Co. of Rutland's case. (o) Co. Liu. 181. 2 Rol. R. 137. But see Boyd v, Durand, 2 Taunt. 161. ARREST. void ; and in this case the party may have an action of false imprisonment (p). Sed (pi. if bail may not, in order to surrender ; or the sheriff on being niled to bring in the body(7 examine him, and that they may be satisfied upon his oath that he was either prosecuting or defending some suit pending in that court when he was arrested (r). So a plaintiff attending the execution of a writ of in- quiry, with his witnesses, held to be privileged ; but the under-sheriff is not bound to take notice of the privilege (s). So if the court give either plaintiff or defendant leave to go after evidence in any cause depending in that court, and he be arrested, he shall have privilege. Otherwise, if he go without permission (t). The court have laid down this general rule : that all persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not, (in which number bail was included,) were entitled to privilege from arrest eundo et redeundo, provided they came bond fide. But if one who comes to justify as bail be an uncertijicated bankrupt, he is not privileged. A barrister was arrested on the circuit, and discharged {u). A party who has attended his cause all day in court, and in the evening retires, with his witnesses, to a tavern in Palace-yard, held to be privileged from arrests, causa redeundi{x). Courts of justice not only protect the parties them- selves, but also their witnesses, eundo et redeundo, pro- perly subpoenaed to attend the trial, and give evidence : for, since they are obliged to appear by the process of the court, they will not suffer any one to be molested whilst he is paying obedience to the writ. Courts not only protect the person, but likewise all the things that are necessary for his journey ; but not merchandise or goods for sale. The witnesses must have a reasonable time allowed them to get home ; but it was held that the court could not try all niceties of delays that might possibly happen : therefore, an attachment was granted against the plaintiff and the bailiff, for arresting a woman who at- tended Winchester assizes. The trial ended on Friday, and she set off on Saturday home to Portsmouth, and in her journey was arrested (y). Witnesses attending the 2 Roll Plaintiff or de- fendant A general rule respecting per- sons engaged 11 Ed. 4. How long party is protected. ^^'it^esses. Not only pro- tect a person, but all things necessary tor hii journey. 3 H. G. 4. (r) Gilb. C. P. 207. Abr. 272. (s) Walters v. Rees, 4 B. Moore, 34 (t) Gilb. C. P. 207. (u) Meckins v. Smith, 1 H. Bl 636. 3 Barn. 27. (x) 2 Bl. R. 1113. And see I Camp. N. P. 229. 11 East. R. 439. Tidd, 196. 784. (V) 1 Moor, 6.5. 2 Roll. 273. 2 Str. 986. F 2 68 ARREST. insolvent debtor's court are within this privilege (z). A party to a cause is privileged from arrest during his attend- ance on an arbitration under an order of nisi prius made a rule of court. But it is doubtful whether a person attend- ing commissioners of bankrupts is privileged (a). Party living in London and summoned to Exeter to attend before an arbitrator, went to Clifton for the alleged purpose of searching for papers, where he staid two days : the court of King's Bench held, that though the devia- tion might be reasonable, yet that the length of time he staid was not so ; and it not being sworn that he was occupied all the time in the object of his going thither, he was not protected. On an application to the court of Exchequer, two judges contra; one held that he was protected (6). As jurors are summoned by the process of the court, they are equally obliged to appear there ; and therefore are no more to be molested whilst they are obeying the commands of the court than witnesses, &c. 6G.4. c. IG. s, 117. Bankrupt is free for forty-two days, or such further time as allowed to finish his examination, if not in custody previous to sur- render. Bankrupt. By the 6 G. 4. c. 16. s. 117, repealing all former Acts, " Every bankrupt shall be free from arrest or imprison- ment in coming to surrender to the commissioners, and from actual surrender ^or forty-two days, or such further time as shall be allowed to finish his examination, (provided he is not in custody at the time of surrender,) and if he be arrested for debt, or on any escape warrant in coming to surrender, or after surrender, within the time aforesaid, then, on producing the summons, under the hands of the commissioners, and giving the officer a copy thereof, he shall be immediately discharged : and in case any officer shall detain such bankrupt after such notice, such officer shall forfeit to such bankrupt, for his own use, 5 1, for every day he shall detain him," This is a particular privilege to enable them to surren- der, and, till their actual surrender, is confined to the act ongoing with that view; not a general privilege during the whole time which the act allows (c); nor to the case of an adjourament sine die (d). (s) Willingham v. Matthews, 6 Taunt. 3o6. (a) 3 East, 89. Tidd, 174. h) Randall v. Gumey, 3 B. & A. 252. 1 Ch. Rep. 683. (c) Cowp. 156. (rf) Et parte Woods, 1 Gl. & G. 75. (•>!) ARREST. The privilege of a bankrupt from arrest upon any " escape-warrant" extends only to such as are at the suit of creditors ; the marshal or gaoler may retake him at any time (e). A bankrupt held to be protected the whole of the forty-second day, where his examination took place on that day (/). The same rule applies to the enlarged day as to the forty-second (g). So the privilege extends to such enlarged time (/^). So it extends to a bankrupt attending a dividend meet- ing several years after his last examination (i). The former act 5 G. 2. held not to alter the rights of the 5 G. 2. c. 30. bail to surrender the defendant, although become bankrupt ; and they are still, therefore, liable, by ca. sa., to be fixed, unless they render (A). Whether a cessio honormn in Guernsey, or a bank- ruptcy in a foreign state, be a discharge, is matter which the court will not act upon, but leave it to be put on the record (Z). Seamen and Soldiers. No seaman is liable to be arrested or taken out of His Seaman. Majesty's service unless the debt amounts to 20 /. ^ ^- ^- '^- ^^• The sheriff is liable to a qui tain action, on the 44. G. 3, 44 G. 3. if his bailiff or officer, after bail given upon arrest, dis- charge him, instead of surrendering him up to some naval officer (w)- A seaman on the ship's books, though he has absented himself, is a seaman within the act (w). Nor shall any volunteer soldier be liable to be taken out Volunteer sol- of His Majesty's service by any process or execution, un- *^"^''- less for a real debt of 20 1. '^'^ ^- ^• These acts have been construed to extend, not merely Construction to common soldiers, and troopers in the life-guards, but of the act. also to non-commissioned or warrant officers, as gunners, Serjeants and drummers. These acts do not extend to commissioned officers, nor to soldiers for disobeying orders (e) Anderson v. Hampton, IB. {h) 3 Esp. N.P. R. 40. 8 T.R. & A. 308, and Ex parte Johnson, 14 475, and 15 Ves. 116. Ves. 36. (0 3 Esp. N.P. 117. 8T.R. 534. (/) Ex parte Davies, 1 Buck (/c) Payne (!.Spencer,GM.&LS. 231. B. C. 80. (/) 2 Ch. 53, 55. (g) Ex parte Simpson, 2 Wils. R. (m)Sturmyi!. Smith, llEastR.25. Ch. 127. (/i) Barnes, 95. F 3 Aliens. 43 0. 3. c. 155. Executors and administrators. 70 ARHEST. of justices, or on any other criminal account. Nor to volunteer drill Serjeants (o). Aliens who have quitted their country by reason of the French revolution are not liable to be arrested for any debt contracted abroad out of the king's dominions. Executors and administrators are privileged from arrest when they act merely in autre droit, and have duly administered the effects of the deceased. IMarried women. Feme covert is not liable to arrest ; and although sepa- rated mensa et thoro, the court discharged a married woman, on a common appearance. She being aiTested as acceptor, the drawer and intestate knowing her to be a married woman, and the plaintiff suing as administratrix, made no difference (p). But to entitle her to be discharged, the fact of marriage must be positively sworn to {q). AVales or coun- lit s palatine, not lo arrest under 20/. Bail for no more than sum ex- pressed. 11 &12W. .3. 0. 9. s. 2. If court awards process to the sheiiflT, witliout cause, sheriff, on arrest, not pu- nishable. 20 II. (J. 5. Sheriff not lia- ble to false im- prisonnifnl if he arrest a bank- rupt. Wales and Counties Palatine. " No sheriff or other officer within the principality of Wales, or counties palatine, upon any writ or process issuing out of any of His Majesty's courts of record at Westminster, shall hold any person to special bail, unless affidavit he first made in writing, and filed in that court out of which such writ or process is to issue, signifying the cause of action, and that the same is lol. and up- xvards ; and when tl\e cause of action is 20/. bail shall not be taken for more thttn the sum expressed in sucli affidavit." If the court shall award process to the sheriff to arrest or take another, without cause, and the arrest is made, the sheriff or his officers are not punishable. But it must be issued out of a court that hath jurisdiction,^" 2<^ici2/?« a non suo judice datum, nullius est momenti. For the sheriff is bound at his peril to take knowledge of the law : Ignorantiajuris non excusat ministros legis (/•). It has been holden, that though certificated bankrupts, or persons discharged under insolvent acts, are privileged from arrests, yet the sheriff or his officer is not liable to an action of false imprisonment fjr arresting them (s). The 1 Wils. 216. 8 R. 270, 5 T. R. (0) 1 Stra. 7. East, 105. 2 T 150. (;>) Hookham v. Chambers, 3 Br. & B. 92. Carlisle v. Starr, 8 Pri. l(jl. IloUoway I'. Lee. 2 b. Moore, 211, semh. contr. Pritchard v. Cow- lam, 2 Marsh. R. 40. (q) Harvey v. Cooke, 5 B. & A. 747. (r) 10 Co. 76. (.s) Tarlton f. Fisher, Dougl. 671. ARREST. 71 general law as to slieriffs is, that if a sheriff has acted in obedience to the mandate of the court he is excused. If Peer, he arrest a i)eer, the writ is erroneous ; yet he is not a trespasser for executing it: and Lord Mamjield there says, the sheriff is not bound not to arrest (0 ; and it is said, that privilege will not be allowed but in fair cases ; even then trespass will not lie for the arrest. Where a party assumed a different christian name, by which he was arrested, the court held, that as the sheriff could only look at the writ, and arrest the person there named, no action would lie against him for such arrest (u). So where the defendant executed a warrant of attorney by a different christian name, and the writ followed the warrant (.r). Regulations after Arrest. The abuses of gaolers and sheriffs officers towards the Abuses of gaol- unfo'rtunate persons in their custody, are well restrained eis, Sec rectified. and guarded against by 32 Geo. 2, which enacts, c. 28. That no sheriff, under-sheriff, &c. shall, at any time or Officer may not times hereafter, convey or carry, or cause, &c. any person carry Wis prisoner by him or them arrested, or being in his or their custody ^^.'^'J'iJjo^^his by virtue or colour of any action, writ, &c. to any tavern, coiiseut; ale-house, &c. or to the private house of any such officer or minister, or of any tenant or relation of his, without the free and voluntary consent of the person or persons so arrested or in custody ; nor charge any such person with nor charge him any sum of money for any wine, 6ic. save what he, she for liquor, &c. or they shall call for of his, her or their own free accord; °'l^-"' 't^" f ^^ r 11 1-1 ii * n as he shall freely nor stiall cause or procure him, her or them to call or ^^^ particularly pay for any such liquor or things, except what he, she call for ; nor de- or they shall particularly and freely ask for ; nor shall mand for caption demand, take or receive, or cause, &c. directly or indi- o'' attendance , ' , ; i* ii any other than rectly, any other or greater sum or sums ot money than j^.^ j^ , ^^^ . is or shall be by law allowed to be taken or demanded for any arrest or taking, or for detaining or waiting till the person so arrested or in custody shall have given an appearance or bail, as the case shall require, or agreed with the person at whose suit or prosecution he, she or they shall be taken or arrested, or until he, she or they shall be sent to the proper gaol belonging to the county, &c. where such arrest or taking shall be ; nor shall exact nor exact any or take any reward, gratuity or money for keeping the gratuity, money, (0 Cameron v. Lightfoot, 2 Bl. R. 1190. (n) Morgan v. Bridges, 1 B.& A. G47 ; and S. C. 2 Stark. N, P. 315. (.i) Reeves v. Slater, 7 B. & Cr. 486. F 4 7-2 vS:<:. nor cany his prisoner to jroal within twenty-four hours after his arrest, unless, 64C. Xor may officer take for the diet, lorlginoj, and other expenses of such prisoner more than shall be allowed by an order of the justices. A copy whereof is to be hungup in some conspi- cuous part of the sessions- house or other proper place. ARREST. person so arrested or in custody out of gaol or prison ; nor shall carry any such person to any gaol or prison ii'HhinJour-and-iwenty hours from the time of such arrest^ unless such person so arrested shall refuse to be carried to some safe and convenient dwelling-house of his, her or their own nomination or appointment, within a city, borough, corporation, or market town {y\ in case such person shall be there arrested, or within three miles from the place where such arrest shall be made, if the same shall be made out of any city, borough, corporation, or market-town, so as such dwelling-house be not the house of the person arrested, and be within the county, riding, division or liberty in which the person under arrest was arrested ; and then, and in such case, it shall be lawful to and for any such sheriff, or other officer or minister, to convey or carry the person so arrested, and refusing to be carried to such safe and convenient dwelling house as aforesaid, to such gaol or prison as he, she or they may be sent to by virtue of the action, writ or process against him, her or them. That no sheriff, under-sheriff, ko.. shall, at any time or times hereafter, take or receive any other or greater sum or sums for one or more night's lodging, or for a day's diet, or other expenses of any person under arrest on any writ, cVc. other than what shall be allowed as reason- able in such cases by some order already made, or which shall hereafter be made by the justices of the peace, at some general or quarter-sessions which shall be held for the county, cSrc. where such arrest or taking shall be, who are hereby authorized and required, with all conve- nient expedition, to make some standing order or orders for ascertaining such charges and expenses within their respective counties, &c. if the same have or hath not been already there made ; and if any such order hath or have been there already made, such justices for the time being, at their respective general or quarter-sessions, are hereby authorized and required to vary or alter the same from time to time as they shall see occasion ; and also are hereby required to cause a copy of every such order, and of every variation or alteration thereof, signed by the clerk of tlie peace of every such county, &c. respectively, to be put and kept in some conspicuous place in the ses- sions house, or some other proper place of every such respective county, &c. as such justices shall order, so as (v) The reason why tliey shall not plaintiff This clause, therefore, can lie carried to prison sooner, is, that only apply to those persons who are thty may have an opportunity of pro- Imilahle. curing bail, or of agreeing with the ARKKST. 73 tlie same vnay be there seen and examined, as occasion may require. s. 2. These provisions are confined to persons arrested on Provisions con- mesne process : the intent of them beinij, that such persons ^"^^^^ *° mesne ,-' ' , -i p • 1 -1 r • process only. may have an opportunity oi procuring ban, or ot agreeing '^ •' with the plaintiffs, and it has accordingly been determined that a sheriff 's officer is not liable to the penalties of the Execution. statute for carrying a defendant taken in execution to pri- son within twenty-four hours after the arrest (z). But the fees payable to the sheriff are not within this act, the table of fees there mentioned being intended to regulate those of the gaoler and officers within the gaol, and the s. 1, prohibiting the sheriff from taking more on an arrest than is "allowed by law," is the allowance of the Court as taxed by the Master («). No time is limited within which a defendant arrested on As to the time. mesne process should be carried to the county gaol by this act. But it seems to be the duty of the sherifi", if possible, to carry the defendant to the county gaol hy the return of the writ on which he was arrested ; afterwards the sheriff keeps him at his peril, in case the creditor is delayed {If). And where the sheriff, having arrested a defendant on mesne process, keeps him in his custody after the return of the writ, and then carries him to prison, he is not liable to an action on the case as for an escape, if the jury find that the plaintiff had not been delayed or jirejiidiced in his suit (c). But the sheriff is not answerable for any extor- tion of an officer, (not named in the warrant) to whose lock-up house the party may be brought after arrest {d). And to the intent that no person may suffer by reason Slieriffs and the of his ignorance of the provisions made by this act, it is jfe'i°ver^pr1ntwl further enacted, copies of these That all and every sheriff, under-sheriff, and bailiff of j':}^"'^';*"' ^''^^' any liberty, and also the respective secondaries and clerk- sitters in the respective compters in London, and all other persons intrusted with the execution of process, or who shall enter any actions, or make any warrant or warrants, or any writ or process, in order to have the same executed, shall deliver a printed copy of the several clauses con- tained in this act relating to bailiffs, Serjeants, and other officers and persons who shall be employed under them respectively to execute any writ, process or attachment, (z) Evans v. Atkins, 4 T. R. 555. (b) Planck ti. Anderson, 5 T. Vv.Al. (a) Martin r. Bell, 6 M.&S.220, (c) lb. 37. Bolder? r. ?.Ioss, 5 T. R, 417. (d) George ;;. Pening, 4 Esp. G3. 74 And make it a part of the con- dition of the bond,&c. that they shall show, &c. if carried to public-house, and permit him or his friend to read over the same, before any liquor or victuals be brought or called for. s. 3. Sheriffs and gaolers to al- low debtors in custody to send for, or have brought to them, victuals and beer from what place they shall think fit. And to have and use such bedding, &c. s. 4. ARIIKST. or wlio shall arrest any person on any action which shall be entered, or otherwise, within their respective jurisdic- tion, to every such bailiff, !kc. and shall make it the con- dition of every security or bond which shall be given or made to any such sheriff or under-sheriff, or bailiff of any liberty, by any bailiff, &c. who shall be employed or intrusted to execute any such writ or process as afore- said under him, them or any of them, that every such bailiff, ) Rule, T. 30 Geo. 3. B. R. WHEN TO BRING IN THE BODY, &C. 91 If there be no return, it is a contempt, for which the If writ be not court, on an affidavit of sei^vice of the rule, will grant an i^iumtd. attachment. A rule to return the writ must be sued out in term, if Must be taken not it will be irregular {q). °"^ ^" term. When the rule expires in vacation the sheriff need not Where rule return the writ till the first day of the ensuing term (r). ^acadon" But there is a distinction between the practice of the courts of K. B. and C. P., in the latter it being held that as the office is open during the vacation the sheriff is bound to return the writ at the expiration of the rule, and cannot wait till the ensuing term {s). And the same rule prevails in the Exchequer {t). If the rule be served on the last day of temi, the bail have the whole of the first day of the next term to justify; and if the defendant surrender on any part of that day in discharge of his bail, no attachment can issue {u). Within what Time to bring in the Body. By the like rules, where the sheriff has returned cepi corpus on the writ, if it be in London or Middlesex he must bring in the body within four days after service of the rule for that purpose, or an attachment shall issue. It it be in any other city or county, then within six days after service of such rule. This rule is to be served in like manner as the rule to return the writ. The intent of this rule, where the de- fendant is not in custody, is to compel the sheriff to put in and perfect bail above. And exception must be made before the body rule can be sei-ved on the sheriff {x). This rule cannot be taken out till the day after the expiration of the rule to return the writ, if bail be put in in due time (y). For it is necessary that the proceedings against the sheriff should keep pace with the time allowed the defendant for putting in and perfecting bail, otherwise (q) Rex V. Sh. of Cornwall, 1 T.R. 552. (r) R. V, Sh. of Berks, 5 East. 386. (s) Rex V. Sh. ofMidd., 5 Taunt. 047. 1 Marsh. 270. (t) Smith v. Blyth, 9 Pri. 255. If sheriff has returned cepi corpus. The intention of the rule. Rule to bring in body cannot be taken out till the day after the expiration of the rule to re- turn the writ. (i() Rex V. Sh. of Midd., 8 T. R. 464. (:i) R.v.Midd, Sh., 6 Dow & Ry, 264. (v) Hutchins V. Hird, 5 T. R. 479. Spicer v. Linnel, C. P. E. 23 Geo. 3. S. P. Kolfe v. Steele, 2 H. 131, R. 276. 1)2 except where hail is not put in in due time. It is no excuse for sheriff to say he took a bail- bond, he must have the body ready. Sheriff may, on receiving this rule, put in bail, and justify, and render. To prevent rule to bring in body, sheriff should return him in actual custody. Bail may now render the prin- cipal before the return of a rule against the WHEN TO BltlNG IN THE BODY, &CC. tliis inconvenience might ensue, that the sheriff might be fixed with the payment of the debt and costs; and upon his bringing an action against the defendant, or his bail, on the bond, they might plead comjjer. ad diem {z). Upon the rule to bring in the body, it is no excuse that the sheriff had taken a bail-bond, and had permitted the defendant to go at large. For it is at the peril of the sheriff, if he takes bail on the stat. H. G, and the party is not concluded thereby ; the sheriff must either bring in the body, or justify good bail in court (a), or render, pur- suant to the new rule. But after the plaintiff had assigned the debt to a trustee, and given notice to the sheriff, with a written authority, to discharge the defendant, the court, although the sheriff ought to have required an indemnity, refused a rule to bring in the body (b). And the court refused to enlarge the time for per- fecting bail, or permitting the sheriff's bail to render, when the defendant was, after bail to the sheriff, com- mitted to criminal custody, and was waiting the judg- ment (c). The sheriff, when ruled to bring in the body, may put in bail for the defendant without his consent, and justify the same, to prevent an attachment: and the bail may afterwards render the defendant (tZ). And an irregularity or defect in the notice of bail by the sheriff will not render it a nullity, so as to found a motion for an attachment for not bringing in the body (e). The sheriff, if defendant is in custody, should return him in actual custody, which prevents the rule on him to bring in the body (r), otherwise he must move to dis- charge that rule on an affidavit of the fact. By the former practice of the court of K. B. the bail put in for the defendant in any action could not render such defendant after a rule had been granted against the sheriff to bring in the body, before such bail had j ustified them- (:) 8 East, 52.5. 2 East R. 241. («) Lee, C. J. Wolfe r. C'olling- wood, 1 Wils. 2G2. (fc) Hookhani v. Moore, G B. Moore, 497. (c) Joyce V. Pratt, Ding. 37b. ((i) Rex i\ Butcher, Peake's N. P.C. lO'J. Hamilton r. Jones, G Bing.628. (f) Pugh V. Emery, 4 D. & Ry. 30. ( /) JVIaclcod V, ^larsdon, Barnes, 32.' WHEN TO inilNG IN THE BODY, 8CC. selves in open court : but now, by rule of court 33 G. 3, bail shall and may be at liberty to render the defendant, notwithstanding such rule, at any time before the ex- piration thereof; the attorney for the defendant giving notice of such render to the plaintiff's attorney without delay, and making affidavit thereof {g) ; which is now further fully provided for by 1 W. 4, whether the defendant be in custody or not. And if bail are put in and justified before that time, they are entitled to enter on the recognizance comjj. ad die7n, or to enter an ap- pearance generally, which is to be taken according to the exigency of the writ (A). In consequence of this rule, a motion was made on the construction of it, whether the sheriff could put in bail, in order to comply with the rule to bring in the body, without justifying. The court held the sheriff not obliged to jus- tify his bail, and that the above rule extends to the case of the sheriff (i). The C. P. have also held, that though a rule to bring in the body has been served, bail may be put in, and render without justifying {k). The sheriff may put in bail in the Exchequer for his own protection by a different clerk in court, and without any notice to the plaintiff's clerk in court (l). And the C. P. held, that though the rule to bring in the body has expired, yet if the defendant justifies bail before the plaintiff move for an attachment against the sheriff, it is time to prevent the attachment ; and the court will not allow the plaintiff to take advantage of the priority of his motion on the same day {m). But the K. B. have held, that if the sheriff be once in contempt for not bringing in the body, that contempt is not purged by the defendant's surrendering on a subse- quent day, though before an attachment is moved for against the sheriff (ii). So where the defendant died after the sheriff was in contempt for not bringing in the body, held that an at- tachment might still issue (o). (g) R. T. 33 Geo. 3. B. R. (/() Whittle I'. Oldaker, 7B.&Cr. 478 ; overruling Bond v. Evans, 4 B, ix Cr. 8G4. (0 Rex V. Sh. of Midd., 7 T. R. 527. {k) Hall D. Walker, 1 H.B1.638. (/) Hopkins i\ Peacock, .5 Pr.ooS. 93 sheriff to bring in the body, be- fore they have justified, giving notice of such render. 0.70, s. 21, 22. This rule ex- tends to the case of the sheriff. May justify in C. P. before attachment moved for. But in K. B. it is otherwise. (m) Thorold v. Fisher, 1 H. Bl. 9. 2 B. & P. 38. (») Rex V. Sh. of Midd., 3 T. R. 29. (o) Semh. colli r., Rex v. Sh. of Midd., 2 M. & S. .5(52. Rex i'. Sh. of Midd., 3 T. R. 133. 94 Contempt not incurred by sheriff till the last day to bring in the body. If sheriff's officer take un- dertaking, and bail above is not put in in due time, and action against sheriff, he cannot jus- tify his bail. C. P. will not permit defend- ant to justify new bail after an action for escape brought for neglecting to take bail-bond. WHEN TO BRING IN THE BODY, &C. But it has been said that the contempt is not in- curred by the sheriff until the day on which the rule to bring in the body is passed, for the sheriiEFhas the whole of that day to render (p) ; and where the party surrendered after the essoign day, but before the actual day of business in court, the attachment was set aside on payment of costs, and the return allowed to be amended {q). If the sheriff's officer take an undertaking to put in bail instead of a bond, without the assent of the plaintiff, and bail above is not put in in due time, the plaintiff may sue the sheriff for an escape, and after such suit com- menced, the court will not permit the sheriff to justify bail, although he offer to pay costs of the action brought against him (r.) But where the officer had allowed the party to go at large without taking a bail-bond, and without the plaintiff's consent, the court refused to allow him to surrender, or the bail to justify, or to set aside the attachment {s.) So where the bail had been rejected, where no hail-bond taken, and the plaintiff brought his action for an escape, new bail was offered to justify by defendant; the C. P. held, that as the sheriff had neglected to do his duty, he ought not to be relieved ; for the court could not too strongly mark his conduct in omitting to follow the direc- tions of the statute, and rejected the bail {t). Where the omission to take a bail-bond was attribu- table to mistake, the court, upon an affidavit of merits and no collusion, let him in to defend, the attachment remaining as a security (m). But to entitle him to such indulgence, the affidavit of merits must be made by the defendant himself, although, under circumstances, the court may waive that and impose terms {x). So where the sheriff had neglected to take a bail- bond, the defendant being in custody in several other actions, the court refused to stay proceedings in the action for an escape, on the terms of paying costs in that action, and charging the plamtiff in custody in the original action (y). (p) R. V. Sh. of Essex, H. 36 G. 3. B. R. See also 1 B. & P. 603. (a) R. V. Sh. of Wilts, 1 Bing. 423. (r) Fuller r. Prest, 7 T. R. 109. (s) Collins V, Snaggs, 6 B. Moore, 111. (0 Webb V. aiatthew, 1 B. & P. 22.5. (») 1 Ch. 721. (.r) Id. 722. (v) Birn v. Bond, 6 Taunt. .554; and 1 Bing. 156. WHEN TO BlUN without his consent, or knowledge of the plaintiff!, and afterwards took him into custody before the time for bail had expired, the court discharged the party, and made the officer pay costs (i). But the defendant himself must make such affidavit of merits. And the sheiiff" is bound to come as soon as possible to relieve himself from the attachment (k). Where the application is made by the sheriff", it cannot If application be expected that he should make an affidavit of merits ; ^^ ^^^^^ ^^ ^^'^ but the court will require an affidavit to be made on his affidav'itwill be part, " that the application originated from him, and not requisite to be made in collusion with the defendant :" if that be done, "^^'^^• the plaintiff will have no reason to complain, as he will be put in the same situation that he was originally entitled to be in (/). He may now render. And the court held (m) that it ought to require either an affidavit of merits, or that the application is made on behalf of the sheriff" or bail, with- out collusion with, or indemnity from, the defendant in the cause. The render is complete to discharge bail, and prevent the attachment from issuing against the sheriff, without any affidavit of the service of notice of render. That is only necessary in order to get the bail-piece out of the office {71). Nor need any entry of the committitur be made for this purpose in the marshal's book. The rule in Tidd. p. 281, 6th ed. said not to be sup- ported by the authorities; and that the distinctions in this respect are, 1st, Upon a render in discharge of bail, the committitur is made out by the judge, and delivered with the prisoner to the marshal ; and the clerk of the papers ought to enter it in the marshal's book : 2, When defendant is already in custody, and the custody to be changed, the committitur is entered with the clerk of the judgments, and not with the clerk of the marshal ; but the committitur itself is left with the marshal : 3. Where the defendant is removed to be charged in execution, the (i) I Bing, 367. (m) R. v. Sh, of Midd., 3 M. & S. (/c) Lee V. Cary, 1 Ch. 180. 299. (/) n. V. Sh. of Surrey, 7 T. R. (n) R. v. Sh.oflMi.Ul., 2 B. & A. 239. G07. II 2 100 If the sheriff has taken an undertaking in- stead of a bail- bond, court will not consent. Xor can he recover of the defendant. When sheriff fixed for not bringing into court the body, and wishes not to try, he can- not be relieved but by payment of debt and costs. STAYING PROCEEDINGS AFTER ATTACHMENT. judge makes out the committitur by hah. corp. with which he is caiTJed to the prison ; and then no entry of it need be made in the marshal's book (o). The court staying the proceedings will only permit the parties to try the validity of the debt ; a plea of bank- ruptcy, p«/5 da?^7\ cont. was set aside, and defendant restramed to the general issue. Semh. if there had been an affidavit that the defendant was no party to the former application, they might have relieved him by rescinding the former order {p). If it appear that the sheriff has taken an undertaTting instead of a bail-bond, the court will not consent, because the sheriff has been guilty of a breach of his duty {rj). So if the officer has taken money in lieu of bail (r). Nor can he recover the debt and costs of the defendant in an action for money paid (s). The same practice is established in the C. P. (t) ; and the court said, if the plaintiff had taken an assignment of the bond, instead of resorting to the sheriff, as the pro- ceedings would have been staid by perfecting bail, and paying the costs, it was reasonable that the same indul- gence should be allowed the sheriff, and that the practice should be uniform. When the sheriff is fixed for not bringing into court the body, and wishes to go no farther, by trying the merits, the courts wall only relieve liim by payment of the whole debt and costs (u). He is not, however, liable beyond the penalty of the bail-bond (.r). The sheriff, upon an attachment, is liable only to the extent which the plaintiff might have recovered if he had proceeded to judgment and execution : in an action against the acceptor, the court declared the practice in Londo7i to charge the sheriff" with costs of the actions against the drawer and indorser to be unreasonable ( y). But where there are circumstances which induce a sus- picion of fraud in the parties to obtain a priority of exe- (o) Per Bailey, J., 2 B. & A. 607. (p) Dowson V. Levi, 4 B. & A. 249. (9) R. V. the Sh. of Suirey, 7 T.R. 239 ; and Fuller v. Prest, 7 T. R. 109. (r) Vanderhaden v. Biitten, 4 D. & Ry. 155. (s) 8 East, 171. (i) Callani'.Tye,2H.Bl.R.235. (it) Heppell V. King, 7T. R. 370. Fowlds V. Mackintosh, 1 H. Bl. R. 233. (x) 3 East, 604. (y) R. V. Sh. of Lend., 2 B. & A. 102. STAYING PROCEEDINGS AFTER ATTACHMENT. 101 cution, or in the sheriff's officer, the court will not dis- charge an attachment but upon payment of the whole debt and costs {z). So also, since the stat. 43 G. 3. 43 g. 3. c. 4G. (which enables him to take the money at the time of the arrest) he has been held liable for the whole {a). Where there has been any arrangement or collusion between the officer, and the plaintiff or his attorney have acquiesced, the court will protect the sheriff; as where the money was in fact paid over, with the plaintiff's know- ledge, to the assignees of the debtor, become bankrupt, (plaintiff being one), the court refused to order him to pay it over again, though he had returned that he had the money in his hands {h). So where the officer had given time, the plaintiff having assented, and received part of the money (c). So where plaintiff had appointed a special bailiff, or given specific directions. But where the bail were parties to the agreement, and the sheriff had been attached, the court refused to set it aside {d). Where the sheriff delayed selling the goods, under the direction of the plaintitl's attorney, and in the interim they were taken under an extent, the court refused to fix the sheriff, and quashed the distringas which had issued (e). If plaintiff, after attachment, be guilty of unreasonable When attach- delay, the court will set the attachment aside ; but not if ment may be the delay is by the desire of the sheriff or his officer (/). ^.o^„t of plain-' The court set aside an attachment on an aflidavit that ^'^'^ laches. the plaintiff kept the defendant out of the way, to prevent the sheriff retaking after a rescue ; that the application was in his own behalf, and without collusion, though it did not negative an indemnity (^). By a Reg. Gen. the rule for setting aside attachments for not bringing in the body, or for staying proceedings on the bail-bond, are not to be granted, unless grounded upon an affidavit of merits ; and where applied for by the (s) R. V. Sh. of Midd., 1 H. B. 543. (e) Ruston v. Hatfield, 3 B. & A. (o)R.v.Sh.ofLond., 9E.R.316. 204. (6) Tomlinson v. Shynn, 2 Br. & Q) 1 Taunt. 489. 3 B. & P. 151. B. 77. 9 East, 467. (c) R. V. Sh. of Lond., 1 Ch. 613. (g) R. v. Sh. of Midd., 1 B. & A . (d) R. V. Sh, of Midd., 1 D. & R v. 192. 388. 11 3 102 New sheriff not chargeable be- fore deHvery. For what pri- soners the new sheriff sliall be chargeal)le. If old sheriff, after he is dis- charged, shall make warrant, and officer ar- rests. Old sheriff re- turned procla- mation, after that discharged, outlawry void. If writ be exe- cuted in old sheriff's time, how return to be. PRECEDING AND SUCCEEDING SHERIFF. original defendant, or on behalf of the sheriff, or any officer, or of the bail, that it is truly made on the behalf of such sheriff, &Lc. at his and their proper expense and only indemnity, and without collusion (A). The affidavit made by bail to set aside an attachment must strictly pursue the rule of Mich. 59 G. 3 ; held, therefore, bad, when it omitted to state that the applica- tion was made for their only indemnity, and at their ex- pense (i). Preceding and succeeding Sheriff; Acts necessary to he done hy each. TN strictness the sheriff ought to return his writ executed, and previous to his going out of office, and file the same with the custos hreviiim{k). The new sheriff is not chargeable with things which are executed before that they are delivered over to him by the old sheiiff(/). For if the old sheriff takes a man in exe- cution, and afterwards a new sheriff is made, and before the old sheriff delivers his prisoner to the new sheriff the prisoner escapes : here the old sheriff only is chargeable for this escape, and not the new sheriff; for the new sheriff shall not be chargeable for any other prisoners than what are delivered over to him by indenture {m). If the old sheriff, after he is discharged, shall make his warrant or precept to any of his late bailiffs or officers to arrest another, and the officer by force thereof shall arrest the party, an action will lie against both the sheriff and officer (n). 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 held void, and the party discharged (o). If a writ, directed to the sheriff, is executed, and after- wards a new sheriff \^ elected, the successor {if the writ be returned over to him) ought to return the writ with the old sheriff^'s return thereon, and that he received the writ as above indorsed from his predecessor (p). Seymour, 1 M. & Malk. (h) 2 B. & A. 240. (i) R. V. Sh. of Midd., 1 Ch. 347. (k) R. E. 6 Jac. 1 K.B. (I) Cro, El. 3G5. (»i) Hob. 266. 1 Bulstr. 70. 79. 2 Leon. 54. 4 East, 606; and Da- vidson 34. (h) Dalt. 18. (o) Dyer. 41. (p) 2 Roll. Abr. 457 Bulstr. 70. Cromp. Co. 205. Dalt. 510. PRECEDING AND SUCCEEDING SHERIFF. 103 The rule now is for the late sheriiF to make his return ; but the return of the old sheriff relates only to the day of his quitting office ; and to make him liable for misconduct of the officer employed, it must be shown that such misconduct was during the time of his office ((/). If the old sheriff, after arresting the defendant, suffer him to escape, and then go out of office before the return day, he alone is answerable (r) ; and if the new sheriff returns by mistake cepi coip. to such writ directed to the old sheriff", and afterwards the latter is ruled to return the body, and an attachment issues ; held to be an irregu- larity, but was waved on account of the lateness of the application to set it aside. If the return of the old sheriff happen to be erroneous. Old sheriff to and that a new sheriff be chosen, the court may cause the ^'^^^^ ^is own old sheriff to amend the same(s). Sheriff sold goods upon afi.fa., and upon a vend, ex- Sheriff sold ponas he returned, that he could not find buyers, then his I'^il^l^'J"'' office determined, and he still detained the goods in his exponas return- hands ; the plaintiff may have a distringas directed to the ed, want of new sheriff to distrain, the old one to sell, and deliver the J;"/^^^;^ J^t^r- money to the new sheriff to bring it into court {t), which mined, and he is the most usual writ. detained the . . . . p goods, no other Upon a return that he had distrained to the value of remedy but 40 s. and further delay, the court increased the issues to distringas. 100 l.{u). If money be paid to the old sheriff, and he is discharged paiTtTthe^old before the return of the writ, the party shall not be com- sheriff, and he pelled to pay it again : but the plaintiff may have his j* discharged r ^- , ii • X 1, -ii" / \ before return ot remedy agamst the ancient srieriii {x). ^^jt^ ^^^ not to pay again. c. 15. 9. When sheriff shall extend goods, &c. for By 3 G. 3. When a sheriff shall, by process out of the Exchequer, extend any goods, &c. into the hands of His Majesty, for any debt debt due to the crown, and shall die, or be super- seded before a vend, exponas be awarded for sale, or before debts due to the he has made actual sale thereof, and a writ shall be after- crown, and dies wards awarded to a subsequent sheriff, who shall make sale ^^J'J^^^ ^^" '^^^ of such goods, the Barons of the Exchequer, &c. shall settle ^^it awarded to the fees, &C. new sheriff, who shall make sale, Barons to settle the fees» (q) Fonsec a. Magnay, 6 Taunt. (t) 6 Mod. 299. 231. (w) Phillips V. Morgan, 4 B. & (r) R. I'. Sh. of Midd., 4 E. U. A. 652. 604.' (i) Cro. El. 208,209. pi. 4. Sav. (s) Dalt. 19, cites 33 H. 6. 40. 123. Ander. 217. pi. 260. H 4 104 Wanant to bai- lifFof a franchise served, and be- fore return bailiff removed, and new one elected, return to be made by the new bailiff. But if not exe- cuted before the old sheriff be removed, afterwards she- riff executes it, to be returned by sheriff who executed it. Same law as to a bailiff. If sheriff levies and dies, his executors liable to an action. K fi.fa. exe- cuted same day writ of discharge came to the sheriff, held that the old sheriff was charsreable. The return of one sheriff not conclude the other. PRECEDING AND SUCCEEDING SHERIFF. It is said, if on a warrant directed to the bailiff of a franchise to execute a writ which is served, and afterwards, ■and before the return thereof, the baihtf is removed, and a new one elected, the return to the sheriff shall not be in the name of the elder bailiff, but of the new bailiff, for the elder bailiff is now a mere stranger (y). I think otherwise ; the old bailiff should make his re- turn first, and the new bailiff that he has received it as indorsed ; or if the old bailiff returns the writ, he should make the return only, if it be not delivered over to the new bailiff. The practice, I believe, now is (unless the defendant be in actual custody) that the old sheriff keeps by him all executed process, and bail-bonds taken thereon (except London and 3Iidcllesex ;) or the rule on him to return the writ, or bring in the body, would be nugatory. If it be not so, the party must proceed by distringas to compel, &c. But if a writ directed to the sheriff is not executed by him, and nothing done in the execution thereof, before the sheriff is removed and another elected, and after the writ is executed, it shall be returned generally in the name of that sheriff who executed it, without making any mention of his predecessor (sr). The same law is likewise in the case of a bailiff of a franchise. If a sheriff levies goods, and dies before satisfying the plaintiff, an action of debt well lies against liis execu- tors («). But where the sheriff is chargeable in his life- time for a personal tort, or misfeasance, there his person is only chargeable, and actio moritur cum jiersona. A fi. fa. was delivered to the under-sheriff, who exe- cuted it the same day that the writ of discharge came to the high sheriff; but because it could not be proved that the under-sheriff had notice of the writ of discharge before the execution executed, it was held by the court that the execution was well executed, and that the old sheriff was chargeable for \i(b). The return of the one sheriff shall not conclude the other (c). (i/) Roll. Abr. 457. Cro. E1..512. (6") Boucher v. Wiseman, Cro. (z) Roll. Abr. 458. El. 4 40. (a) Cro. Car. 539, 540. (c) Br. Ret. Writs, pi. 5. 3 H. G. 5G. PRECEDING AND SUCCEEDING SHERIFF. 105 A writ of discharge was delivered to the shei-iff, his under-sheriff, not knowing it, makes execution inN;he county, and adjudged no execution, and yet sheriff no trespasser (fZ). And Walmslei/ cv^d a judgment, that execution by baihff after supersedeas deUvered to the sheriff is void. Where the old sheriff arrests a man, and afterwards Where new returns a languidus inprisona, and afterwards, mexitu ah sheriff chorge- officio, dehvers him to the sheriff charged with the arrest, ^y tJie old and then the new sheriff suffers him to escape ; here the sheriff. new sheriff is only chargeable with the escape, and al- though the old sheriff returned a languidus in prisona, yet that is not material to the plaintiff, he remaining always in prison, and that return was only to excuse the bringing of the prisoner at the day (e). The 20 Geo. 2. requiring all unexecuted process to be c. 37. turned over to the new sheriff, of course those that remain ^^^'^ sheriff executed in the hands of the old sheriff must be returned called on to hy him ; he therefore now may be called on by rule of return writ by :ourt to return the same, provided it be within six months ^^'^ ^^ ^°^^^^ ' ifter the expiration of his office ; the day in which he goes ;ut of office is to be reckoned one (/). And by the rules of the courts of King's Bench and and also to Common Pleas, if he returns cepi corpus, he may now be j*"!^? ^° ^^^ called on to bring in the body without the process of dis- tringas. In case the old sheriff leave with the new one a writ returned, executed hy him, then it is usual for the new sheriff to make his return underneath, thus : " This writ, as above indorsed, was delivered to me by the above-named late sheriff at the time of his going out of office. The answer of C. D. esq. sheriff." {g). The sheriff to whom a writ is directed, and by whom it when late she- s executed, ought to make his return to it, and hand it riff answerable. )ver to the new sheriff ; and if the old sheriff after arrest- ng a man suffer him to escape before the return-day, he done is answerable (A). In all cases (except on process or execution against the l" all cases body) where the sheriff who executes the writ is out of [he'j.e^ec^*^ ((Z) Dyer, 315. Mar. pi. 36. {g) Dalt. 516. 2 Roll. 457. cites E. 44 El. C. 13. Bulstr. 70. (e) Cro. Jac. 380. Dalt. 516. {h) 4 East, 604. (/) Doug. 4()3. 106 aoainst the okl sheriff is by distrutsras. POSSE COMITATUS. office, after return of his writ, a writ of distringas is to be directed to the new sheriffj to distrain the old sheriff, and the new sheriff shall make return of such distringas. And the plaintiff may also pursue his remedy by action for a false return, at the same time (i). By common law the sheriff may raise the posse comitatus. Who are to attend. 2 11. 13 Ed. 1. 39. Of his Raising the Posse Comitatus. T> Y the common law the sheriff may raise the posse comitatus, or power of the county, that is, such a number of men as are necessary {after resistance) for his assistance in the execution of the king's writs (k). And eveiy man is bound by the common law to assist, not only the sheriff, but also his bailiff that hath the sheriff's warrant in that behalf, who has the same authority which his master has ; for the sheriff cannot do all himself; and if they refuse, being required, they shall be fined and imprisoned (/). All knights, gentlemen, yeomen, labourers, sei-vants, apprentices, and villeins, and likewise wards and other young men that be above the age of fifteen years, shall be compelled to attend. But not women, ecclesiastical persons, and such as be decrepit, or do labour of any continual infirmity (m). And all persons under the degree of a peer are bound to attend upon warning of the sheriff (n). Anciently, great men had castles, fortresses and liber- ties, whereby they resisted the sheriff in executing the king's writs, which created great inconvenience; the statute of Westm. 2, hindered the sheriff from returning rescues to the king's writ of execution ; the words are, " Also false answers, that they could not execute the " king's precept, for the resistance of some great men, " I'edound much to the dishonour of the king. And as " soon as the bailiffs testify that they found such resistance, " forthwith all things set apart {taking the power of the " shire) the sheriff shall go in person to do execution ; and " if he find his under bailiffs false, he shall punish them by " imprisonment, and if he find them true, he shall punish *• the resisters by imprisonment, from whence they shall " not be delivered without the king's special command. (0 An. 2 Ch. 392. {k) 3 Inst. 161. (/) 2 Inst. 193. (m) Lamb. Eir. 1. 3. c. 1. 19 Vin. Abr. 431. («) 3 Co. 142. 1 Inst. 193. rOSSE COMITATUS. " And if the sheriff' find resistance, he shall certify to the " court the names of the resisters, aiders, consenters, cotn- " nianders and favourers.' The words of this statute have been construed to extend to executions only, and not to writs on mesne pro- cess; and that the sheriff' was not obliged to raise the posse comitatus where the party was bailable ; for that it cannot be presumed that in such cases the king's writ will be disobeyed (o). And it was adjudged and agreed by the court, that though the sheriff' was not obliged, that; yet he may take his posse to serve mesne process in case of resistance {p). But he must take it after resistance and not before ; for sequi debet potentia justitiam, non prcBcedere (q). By W. 1. if a distress be impounded in a castle or fortress, and detained, the sheriff" or bailiff", taking with him the power of the shire, &c. may cause the said castle or fortress to be beaten down. The sheriffs are not confined to any number of persons, but it is referred to the discretion of the sheriff", 8tc. what number they will have to attend upon them, and how and in what manner they shall be armed, weaponed, or otherwise furnished (r). The sheriff"'s bailiff", to execute a replevy, took with him three hundred men armed, and held lawful, for the sherift"'s officer hath power as well as the sheriff" (s). It seems when the power of the county is to be raised or taken, that the bailiff must have warrant from the sheriff" to do it, and that he must be a known bailiff" or officer, that must do it. If the sheriff", &c. shall take posse comitatus with them, without any sufficient cause, yet such as therein shall be aiding to the sheriff or his said officers or servants may well justify such their doing by the commandment of the sheriff or his said officers, &c. The sheriff is bound to do and make executions at his peril, for if he take the defendant on a ca. sa. and he is rescued from him before he can bring him to prison, though he returns the rescue, yet this shall not excuse 107 The oonstruc- tion of this act extetuls to exe- cutions only, and not to mesne process. It was ad- judged he may take posse comitatus. Must take after resistance. c. 17. If distress be impounded in a castle, sheriff may raise posse cotnitatus. Sheriff not con- fined to num- bers. Sheriff's officer took 300, and held lawful. 3 H. 7. But bailiff must have warrant from sheriff to do it. If he takes posse without cause, yet all dis- charged, and may justify. 5 H. 7. 4, 5. Bound to exe- cute executions, therefore to raise posse, &c. (o) 1 Roll. Abr. 807. 1 Roll. Rep. 388. 440. Cro. Jac. 419. (p) Cro. El. 808, 2 Lev. 144. 3 Lev. 4G. Noy, 40. Moor, 852. (9) 2 Inst. 454. (r) Dalt. 35.5. (s) 1 Dal ton, 355. 5 Co. 72. 108 c. 39. The reason. If rescue 1)8 returned after goods taken. Sheriff may raise power of the county. POSSE c6MITATLiS. him, for when judgment is passed, and he and his bail do not surrender him, nor pay the condemnation money, the sherifi' ought to take the posse comitatus ; and conse- quently cannot be a good return, that he took the body, but that it was rescued ; and the party may have an action of escape against the sheriff on this return ; and this is provided by the statute W. 2, which was made to prevent sheriffs from returning rescues to the king's writs. But to mesne process he may return rescue {t). The reason why such return is not good is, that anciently every man, being in decenna, had bail, and now is presumed to have bail ready to be answerable for his forthcoming, and therefore the sheriff is not obliged in duty to take the posse comitatus to assist him ; but when judgment is passed, and his bail do not surrender him, nor pay the condemnation money, then a ca. sa. issues, to which there can be no bail ; and there it is presumed that he will not be forthcoming, because neither he nor his bail have satisfied the judgment ; and therefore the sheriff then ought to take the jmsse comitatus, and con- sequently cannot be a good return that he took the body, but that it was rescued; and the party may have an action of escape against the sheriff on this return, or a new capias for the retuiir of an ineffectual execution ; but if the sheriff had permitted him to go at large, he could have had no new execution, for an effectual execu- tion is returned, and so there is a pledge for satisfaction in the custody of the sheriff, for which he is only answer- able {u). If the sheriff take goods on an execution, he cannot return rescued, because he ought to have taken the posse comitatus ; and if he returns a rescue, he charges himself with the seizure {x) : it having been held, that a return of rescue was no excuse to the sheriff; for he might have taken the posse comitatus. The sheriff, if need be, may raise the power of the county to assist him in the execution of a precept of restitution ; and therefore if he make a return thereto that he could not make a restitution, by reason of resist- ance, he shall be amerced ( y). (t) Cro. Jac. 419. 1 Roll. Rep. 388. 4 10. 3 Bulstr. 198. 3 Lev. 4fi. (i<) 1 Ro. 904. Cro. Car. 240. 255, (x) IVIildmay v. Smith, 2 Saund, 343. 2 Roll. R. 57. (v) Lamb. 157. I TWO SHERIFFS. But though it be the duty of a sheriff, or a minister of justice, having the execution pf the king's writs, and being resisted in endeavouring to execute the same, to raise such a power as may effectually enable them to overpower any such resistance, yet it is said not to be lawful further to raise a force for the execution of a civil process, unless they find a resistan(fe ; and it is certain they are highly punishable for using any needless outrage or violence therein {z). It is said, a sheriff who cannot do execution by a posse comitatus ought to acquaint the deputy lieutenants of the county ; and if they assist not, he may acquaint the king and council : and yet the sheriff shall be amerced, if he return that he cannot do execution («). It is holden for a maxim of law, that it is not lawful for any man to disturb the ministers of the king in the due execution of the king's writs, or process of law ih). Two Sheriffs considered. T N London and Middlesex, it has been already obsei'ved, -*• both sheriffs make but one in both counties : and therefore it seems to be a good cause of challenge if the writ appears to be returned by one sheriff only ; and if one of them dies, the office is at an end till another is chosen. The first beo-innino- of this custom seems to be upon the foundation of the charter of King John, who granted the sheriffwick of London and Middlesex to the mayor and citizens of London, at the farm of 300 Z. per annum. So that beino; a grant in fee of the sheriffwick to them as a corporation, they had a right to name one or more officers, in order to execute the same ; and they thought it proper to name two officers indifferently to execute both offices, and both of them to execute as one sheriff, though the writ in Middlesex is directed to them as one, viz. Vic' Com' Middx. prtscijumus tibi, in that of London, Vic' Com' London j)^(Bcipimus vohis : and the reason of this difference seems to be, that before this grant of the sheriffwick to the corporation, the coi'poration no- minated to the crown, and the crown appointed the she- riffs for London, and the London sheriffs were responsible to the king for the London profits of the sheriffwick, and (z) 3 Inst. 161. 2 Inst. 193. Hob. 62. 264. («) Bush V. Chamberlain, 1 Keb. 99. pi. 91. (6) 2 Inst. 194. 100 Not to raise posse comitatus on civil process, unless they find resistance. To acquaint the deputy lieute- nant, if he can- not do execution by a posse cmni- tatus. Not lawful to disturb the exe- cution of the king's writ. In London and Middlesex both sheriffs make but one. If one dies office at an end. The beginning of the custom is founded on the charter of K. John. Reason why called in ]\Iid- dlesex one she- riff, and London two. 110 Infonnation against three, one of them one of the sheriffs of C. and ven.f'ac, awarded to the other sheriff, it was suggested on the roll one was a party ; held that where there are two, and one a party, the other shall supply the defect. Coroner not the person to exe- cute but where the other sheriff Two sheriffs make but one officer, if one dies, office at an end. One sheriff makes his return •without the other, no return. EiTor to reverse an outlawry. TWO SHERIFFS. that was the reason why two were appointed, that both might be responsible ; and this nomination was, that the citizens might exhibit to the king responsible persons ; and that seems to be the reason that in many of the cor- porations that are cities and counties there are two she- riffs ; but when, by the charter of King John, the sheriff- wick of London and Middlesex was granted to the citizens as a perpetual fee farm, then they entered their sheriffs, which before were nominated for London only, and the election of the two was for both sheriffwicks, but the direction of the king's writs were as before, viz. in London to the two sheriffs, and in Middlesex as if there was only one (c). An information was brought against three, whereof one of them was one of the sheriffs of the city of Chester, and the ven. fac. was awarded to the other sheriff". It was suggested on the roll that one of the sheriffs was party. Question was, whether it was good : And it was ad- judged to be well awarded. And as to an objection which had been made, that both are but one officer in law, it is plainly otherwise ; for where there are two she- riffs, and one is challenged, the other shall supply that defect, and not the coroner ; for he is not the person to execute the process of the court, but only where the pro- per officer is wanting, which cannot be where there is one sheriff (c?) ; and »S'aZAf'Z<^ says (e), for the other may execute the writ, but he does it in the name of both (/). is wanting. Where there are two sheriffs, they regularly make but one officer, and therefore if one of them dies, the office is at an end until another is chosen, and the courts of West- minster can award no process to the other (^). If one sheriff" of London make his return without his fellow, this being as no return at all, is not aided by the statute which aids insufficient returns (A). In a \\v\i of error to reverse an outlawiy, among other errors, it was assigned that the direction of the exigent to the sheriffs of the city of Lincoln was quod capias corpus (c) Gilb. H. C. B. 136, 137. 3 Co. 72. 1 Show. 1G2, 163, 28!). 2 Show. 262. 286. Lev. 281. Hob. 70. Priv. Lond. 5, 6, 7. 272. 273, (d) 4 Mod. 65, 66. K. & Q. v. Warrington, 21 H. 6. 8. pi. 17. {e) 1 Salk. 152. (f) Show. 327. Ace. Comb. 191. 12 Mod. 22. S. C. Carth. 214, cites it as so held in the cases of Bethel V. Harvey, and of Rich v, Pla}-er. (g) 4 I\Iod. 65. 1 Show. 289. Mod. Cas. L. & Eq. 304. {},) Hob. 70. Lit. Rep. 129. EXECUTION. BY CA. SA. ejus ita quod habeas corpus ejus, &c. where, they behig two sheriffs, the writ ought to have been capiatis et haheatis ; sednon allocatur ; for they both be but one officer to the court ; and although in the end of the writ it is ita quod haheatis ibi hoc breve, yet there is no repugnancy, for it is good both ways (i). If thei'e are two sheriffs of the same place, and an action is brought against them both for an escape, if one of them dies, yet the writ shall not abate ; for it being in the na- ture of a trespass, and merely personal, the party can only have remedy against the survivor (k). A prisoner in Wood-street Compter, on a plaint against him, escaped ; whereupon the plaintiff brought his action against both sheriffs of London ; and on demurrer to the declaration the plaintiff had judgment ; and it was re- solved, that though the plaint was levied before one de- fendant only in his court, and prisoner escaped out of his compter, yet that both the sheriffs had the custody of the prisoners in both compters, and by consequence the ac- tion was well maintainable against both (/). Ill If two slierifts, and action against both for an escape, if one dies writ shall not abate. A prisoner in Wood -street on a plaint, es- caped, action brought against both sheriffs, and held good, though they have different compters, and plaint levied before one only. EXECUTION. Sy ivrit of Capias ad Satisfaciendum. ^r'HE first species of execution is by writ of Capias ad satisfaciendum, which is a writ of the highest nature, inasmuch as it deprives a man of his liberty till he makes the satisfaction awarded ; and therefore when a man is once taken in execution by the sheriff, on this writ, no other process can be sued against his lands or goods. By this writ the sheriff is directed to take the body of the defendant, and have him at Westminster on a day therein named, to make the plaintiff' a satisfaction for his demands. And if he does not then make satisfaction, he must remain in custody till he does. When the defendant is once in custody upon this pro- cess, he is to be kept in arcta et salva custodiu : and if he be afterwards seen at large it is an escape ; and the plain- tiff may have an action thereupon for his whole debt. For though upon arrests, and what is called mesne process, be- (0 Gargrove v. Markham, Cro. Jac. 576. (/v) Benion v. Sh. of York, Cro. El. G25. (0 Car. 1-15, 1 Show. 102. Capias ad SU' tisfaciemhim against the body. AVhat sheriff to do thereon. If he takes the defendant on this writ, is to keep him in safe custody. 112 c. 27. EXECUTION. -BY CA. SA. Not to indulge him, atid why. If a ca. s.n. against two or more. He cannot re- turn a rescue. May not hreak doors, &,c. Except where tlie king a party. But he ought first to acquaint, &c. House no pro- tection for another. Sheriff cannot receive the money on a Ctt. sa. ing such as intervenes between the commencement and end of a suit, the sheriff, till the 8 & 9 W.'d, might have indulged the defendant as he pleased, so as he produced him in court to answer the plaintiff at the return of the writ : yet upon a taking in execution, he could never give any indulgence ; for in that case confinement is the whole of the debtor's punishment, and of the satisfaction made to the creditor. If a ca. sa. be against two or more, the sheriff may take the bodies of all in execution {m). A rescue of a prisoner in execution, either going to gaol or in gaol, or a breach of prison, will not excuse the she- riff from being guilty of and answering for the escape ; for he ought to have sufficient force to keep him, seeing he may conmiand the power of the county (/i). Where, in an action for a false return to a ca. sa., it was alleged that the officer was in sight of the party, held that no averment of notice of his being within the baili- wick was necessary (o). On this writ, the sheriff may not break open any man's house to arrest him ; but in all cases, when the door is open, he may enter to make execution of the body. But yet, in favour of executions, which are the life of the law, and especially in cases of great necessity, or where the safety of the king and commonwealth are concerned, the general case is excepted when the writ is at the suit of the king ; then the sheriff, or his officer, after request to have the door opened, and refusal, may break open the house to take the body (p) ; but he ought first to signify the cause of his coming, and request the owners to open the door (q). But a man's house is no protection for another, there- fore the sheriff may break open to take him (r). It is said that the sheriff cannot receive the money on a ca. sa. as he can on aji.fa. ; for on the command of the writ he is to take the body, and bring it into court, that the plaintiff may be satisfied, so that the money is to be paid into court, in order to discharge the body of the de- (m) 5 Rep. 86. Godfrey's case, 11 Rep. (n) Cro. Jac. 419. (o) Dean of Hereford v. Macna- mara, 5 D. & Ry. 95. (p) 5 Co. 91. 2 Show. 87. pi. 78. (q) Cro. El. 908, 909. 714. pi, 17. Leon. 41. pi. III. (r) Fost. Cr. L. 319. 00(1. EXECUTION. — BY CA. SA. 113 fendant, and not to the sheriff below (s). If he receives tlie money from a party taken in execution, which is illegal, he may be called upon to repay it, with costs of the levy (t). But payment, or a tender of the debt and costs, to the plaintiff's attorney, on record, is a good payment to the plaintiff himself (?/). The sheriff cannot receive it ,• and if he does, the payment is no discharge as against the plaintiff; the creditor is therefore bound to accept the debt and costs when tendered, and give an authority for the party's discharge, or the refusal will be prima facie evidence of malice in an action {x). In debt on a judg-ment, the defendant pleaded that he Plea of pay- was taken in execution by ca. sa. on that judgment, and '"^"' ?° ^^^ had paid the money to the sheriff, and it was held to be ^ ^^" "° ^ no plea ; because though he does pay it to the sheriff, yet the sheriff may be insolvent, or may die, and leave no assets, and then the party will be never the better ; and so it was held in Baker's case, who pleaded payment to the marshal, being in execution, and held to be no plea (y). The sheriff hath no power to receive money of the de- fendant upon a capias, for his business is only to execute his writ. And if in such case the defendant pays the sheriff, and he afterwards becomes insolvent, and does not pay the plaintiff, such payment shall not excuse the defendant. At common law, no officer, whose office related to the administration of justice, could take any reward for doing his duty but what he was to receive from the king {z) ; and the fundamental maxim of the common law is con- firmed by 3 Ed. 6, whereby it is ordained, that no sheriff shall take any reward to do his office, but shall be paid of that which he takes of the king, and that he who so doth shall yield thrice as much, and shall be punished at the king's pleasure. So much hath this law been thought to conduce to the honour of the king and welfare of the subject, that all prescriptions whatsoever which have been contrary to it have been holden void (a). At common law- no reward to be paid to sheriff' for doing his duty, c. 26. And by stat. no sheriff to take reward to do his office but of the king. (s) Latch. 177. (0 Mottan t'. Hort, 4 Bing 147. (u) 2Show.139.pl. 116. 2Lev.203, (i) Crozer r. Pilling, 4 B & Cr. 2G. 14 East, 408. (y) Freem. 842. Lutw. 578. 12 Rlod. 230. 38.5. (:) 10 Mod. 139. (a) 4 Bac, Abr. 463, I 114 Sheriffs back- waifl in execut- ing tlieir writs before an act was made to state the fees. 29 El. c. 4. Crown not bound. liut if a ca. sa. issue on a judg- ment or a bail- bond taken on an Exchequer process, and the defendant is taken, sheriff entitled to his poundage. c. 4. EXECUTION. -BY Cy\. SA. c. 15. s. 17. Fees often taken on a ca. sa. for the whole pe- nalty acknow- ledged. To prevent which, sheriffs are not to take more poundage The common law giving no fees to sheriffs, made them backward in executing writs, by reason of the great dan- ger both in taking desperate men, by reason of resistance, and also in detaining them, for fear of escapes ; so that they would have great rewards, or otherwise would do nothing; whereupon the parliament thought fit to fix their fees (b). The crown is not bound by the statute not being named (c). However, an action brought in the Exche- quer by the sheriffs of London, upon a bail-bond taken by them in their oivn names, for the appearance of a defend- ant taken upon an Exchequer process, on the prosecution of the king's attorney-general, on behalf of the crown, for custom-house penalties and forfeitures ; and a testatum ca. sa. to the sheriff of Herts against the bail, cannot be considered as the suit of the crown, though averred to be for the benefit, and on behalf, and at the expense of the crown, nor shall the sheriff who executed it be precluded from his poundage (c?). The 29 JSl. does not extend to executions on statutes, recognizances, &c. because the judgment is not iw invitum{e). And such fees bemg only allowed by the statute for liis care, pains and charges in executing the process by levying the money, he has been held not entitled thereto in respect of monies found in the hands of crown debtors, nor on sums paid by sureties, nor on debts collected by him under an arrangement not connected with his cha- racter and power as sheriff, nor on sums paid by a re- ceiver appointed by the court (/). By 3 Geo. 1, reciting, " That whereas it often happens that small sums only are remaining due upon judgment, statutes and recogni- zances, given, acknowledged and entered into for great sums and penalties, and nevertheless in these cases, upon executing of writs of ca. sa., the sheriff demands and takes for his fees poundage for the whole money for which said judgments, statutes or recognizances are entered or ac- knowledged : For remedy of which grievance and ■ incon- venience, be it enacted, that from and after the last day of Michaelmas term 1717, poundage shall in no case be de- manded or taken upon executing any writ of ca. sa., or upon (fo) Latch. 18. Cro. El. 65-1, (d) Lake v. Sh. of Herts, 4 Burr, pi. 15. 1981. (r) 4 Burr. 1984. (e) Salk, 332. (/) Rex V. Villers, 8 Pri. 587. EXECUTION', -BY C.\. SA. charging any person in execution by virtue of such writ, for any greater sum than the real debt bona fide due, and claimed by the plaintift" amounteth unto ; which sum the plaintiff shall be and is hereb}' obliged to mark and spe- cify on the back of such writ, before the same be delivered to the sheriff to be executed." U5 lliau for the sum indorsed on the writ. " And if any sheriff, &c. shall take greater fees, he is guilty of extortion ; and being convicted, shall forfeit to the party grieved treble damages, and double the sum extorted, to be decreed by the court out of which such writ issued, in a summary way. And every person so offending shall forfeit 'ZOoL, to be recovered by bill, plaint As also 200?, or information." Guilty of extor- tion ; and forfeit treble damages to party grieved. This statute extends to all judgments in Westininster ; and whether the sheriff executes them in a county or a franchise, he shall have his fees. And so it is of a bailiff ol a liberty, when he executes any execution on a j udg- ment given in the courts at Westminster, within his liberty. But on process on a judgment given in a court of cor- poration, or liberty, it is otherwise (e/f). For executing a ca. sa. the sheriff is entitled to 12 d. in the pound, when the sum exceedeth 7iot 100/.; and Gd. for every 20 s. above that sum that he shall take the body in execution for, which is called poundage. What statute extends to. AVhat sum for poundage. 29 El. c. 4, But in term, 1785, a special case was made by A special case ^..^1 7l/r^,,,^./?^7J A.^,^, il,.^ ^U*;,,^ — „A z^*,.,* 7,77. ,.77 ] ii- _ made on pound- age, party being in eaol. Lord Mansfield from the sittings at Guildhall, and the question was, whether a plaintiff should pay to the she- rift', under the above act, poundage for his debt, the pri- soner being in gaol, and not having made satisfaction ; it was held that the sheriff' was entitled to his poundage whether the plaintiff received the debt or not, and judg- ment was given for the plaintiff*. The sheriff" had the defendant in execution on a ca. sa., plaintiff" delivered him on a hab. corp. to remove him to the King's Bench prison. He, upon this, insisted to be paid his poundage before he parted with the body. Cur. said, they could not be making bargains with people to obey their process, which they could enforce an obedience to, and left the sheriff" to his action for his fees, which was his legal remedy (A). An under-sheriff" refused to execute a ca. sa. till he had his fees ; Cur. said, plaintiff might bring an action against him for not doing his duty, or might pay him his fees, (g) Salk. 331. (/,) Str. 1202. Sheriff had de- fendant in exe- cution, hab. Corp. was brought to re- move him ; sheriff insisted on his pound- age, but court said he might bring his action. Under-sheriff refused to exe- cute a fa. sa. befoie payment 116 of the poundage, but was obliged. Sheriff cannot apply the money levied on a ca. sa. to diji.fa. he has against the plaintiff as executor, at the suit of the de- fendant in the ca. sa. May take de- fendant to prison on the ca. su. within 24 hours. c. 28. s. 1. Debt lies for fees. EXECUTION. — BY FI. FA. and then indict for extortion (i) ; and if he delay paying over residue under a claim of poundage, which is even- tually disallowed, he will be charged with interest (k). Bird was arrested at the suit of Staple on a ca. sa. Si7'd pays the money to the sheriff ; at the return, the sheriff returned that he took the defendant, who paid into his hands 30 Z. 6 s. 6d., the sum mentioned in the ca. sa., and after, and before the return, 11 May, aji.fa. against the goods of Staple, the plaintiff in the ca. sa. ats. Bird, the defendant in the ca. sa., for 29 Z. 10s., was delivered to the sheriff, and that he levied the same out of the money received under the ca. sa. Upon this return and affidavit of facts, application was made to the court, and rule obtained to show cause why he should not pay plaintiff's attorney the said 30 Z. 6 s. 6 cZ., deducting pound- age ; which rule was made absolute upon hearing counsel on both sides (l). N. B. Had this ji. fa. been against Bird himself, I think the court would have applied the money, deducting pomidage and the attorney's costs, towards a satisfaction of the fi. fa. (in), as to application of two judgments. A sherifTs officer is not liable to the penalties of 32 Geo. 2. for cariying a person taken in execution to prison within twenty-four hours ; that clause only relates to persons arrested on mesiie process {n). An action of debt lies by the sheriff for liis fees for executing the writ (o). By Fieri Facias. Fierifacias. 'T'HE next specics of execution is against the goods and chattels of the defendant, and is called a writ of fieri facias from the words in it ; where the sheriff is commanded, quod fieri faciat de bonis, that he cause to be made of the goods and chattels of the defendant the sum or debt recovered, and have it in court on the return day. The writ, in point of form, invariably pursues the judgment ; and therefore it has been holden that a special execution is not warranted by a general judgment (p). (i) Noy, 75. Salk. 331. (k) R. I'. Villers, 11 Pri. 575. (/) Staple f. Bird, Barnes, 214. (w) Vide 3 Wils. 396. (n) Evans i'. Atkins, 4 T. R. 555. (o) Jayson v. Rash, Salk. 209. 331. (p) 1 T. R. 80. EXECUTION. BY Fl. FA. 117 This writ, at the common law, bound the defendant's At commoa goods from the teste of the writ, so that any sale after bou^^fthe'^goods that was void, because the goods from the time of the teste f,om the teste. were attendant to answer the execution ; for the execution at common law being only on the goods, if they had not allowed the goods to be bound, as if the party had transferred them, they thought every execution might be avoided by sale ; and it was presumed that the sheriff should execute such writs immediately, and that there would be notice in the neighbourhood, that they might not be deceived ; but the goods were not bound by the judgment, because the judgment was in force for a whole year; and it would be hard that none against whom judgment was pronounced should buy or sell within that time : but men abused the notion of the retrospect of the Abuse of this goods being bound by the teste of the writ, to make sales notion. uncertain ; for they took out wi'its one under the other, without delivering them to the sheriff, by which they bound the goods of their debtors, and consequently made their sales and commerce uncertain ; to prevent which. To prevent the statute of frauds and perjuries binds the goods only which, statute from the delivery of the writs to the sheriff, enacting, ^mAe ^ and " That no writ of execution shall bind the property of ^"'?^^'^^' ^'^^^ "° " the goods, but from the time of its deliver if to the sheriff, jIq^ gh^fl jj^^d " under-slierifF or coroners ; who, upon receipt thereof the property. " (without fee) shall indorse on the back thereof the day 2'J Car. 2. c. 3, " of the month and year when thev received it." ^.-aAq perpetual *' " by 1 Jac. C.17. Which was no more than restoring the old law, which s. 5. supposed the writ to be delivered to the sheriff imme- diately from the teste {q). This must be intended as to strangers, who might have This must be a title to the goods between the teste of the writ and de- •"'^ended as to livery thereof to the sheriff; but as to the party himself, "L'^to^the party, his executors and administrators, the goods, since the sta- tlie goods are tute, as before, are bound from the teste (r). '^"""'^ '^''^'^ ^'''^ _ ^ ^ teste. If two writs oiji.fa. bear teste the same day, the sheriff, if two writs of at common law, and now since the statute, is bound to >•>• ^ear'es(e execute that which wdiS first delivered to him (s) ; there- bound"to exe- fore the time ought to be marked when the sheriff re- cute the first ceives those writs in office. If fi. fa. be tested before, delivered. (9) 8 Co. 171. Cro. Jac. 4.51. Cro. El. 174. Sid. 271. (r) 2 Vent. 218. Comb. 33. 2 Show. 48.5. G Mod. 22.5. (s) Salk. 320. Carth. 419. I 3 118 If two writs be delivered on dif- ferent days, and no sale made, the first to have a priority, though the seizure was made under the second first. EXECUTION. — BY FI. FA. but delivered to the sheriff and executed after defendant's death, the execution is irregular (^). If two writs be delivered to the sheriff on different days, and the sheriff execute the last first, by making sale of the goods, the sale will stand good, and the per- son who delivered the first writ to the sheriff shall have his remedy by an action against him {u). Though in general the sheriff must first levy on the writ which he first receives, yet if the plaintiff in that writ directs it not to be executed before a distant day, and in the mean time another execution comes, the sheriff is not to keep the first hanging over the head of other cre- ditors, but is to levy under the last execution, as if no other had been delivered to him {x). So, if the debtor be permitted by the plaintiff in the first execution to continue in possession (^). Where two writs offi.fa. against the same defendant are delivered to the sheriff on different days, and no sale is actually made of the defendant's goods, the first execu- tion must have the priority, even though the seizure was first made under the subsequent execution ; and if the person claiming under the second execution pay the she- riff the amount of the debt under the first execution for his security, the court will not compel the sheriff to refund that money on motion. The principle of law is, that the person whose writ is first delivered to the sheriff is en- titled to a priority, and that the goods of the party are bound by the delivery of the writ (z). So where an act of bankruptcy and fi. fa. executed concur on the same day, the priority in time determines the validity of the latter (a). An execution taken out after a bankrupt's certificate is signed by creditors, but before allowance by Chancellor, is valid (b). The plaintiff delivered a fi. fa. to the sheriff, under which his officer levied, and a bill of sale was made ; then the sheriff discovered a former execution in the office, and returned nulla bona ; on this case the (t) 1 B. & P. 371. 1 T. R. 729. (y) Lovick r. Crowder, 8 B. & («) Carth, 420. Smallcomb r. Cr.'l32. Buckingham, 4 East, 523 ; and 1 (s) Hutchinson v. Johnson, 1 T. R. 720. T. R. 731. (O Kempland i\ jMacauley, Peake's («) Sadler r. Leigh, 4 Camp. 197. ^. P. (i.5; and 4 i:ast, 523. 1 (6) 1 T. R. 361. IJ^inilh 170. EXECUTION. — BY FI. FA. H^ detendant obtained a verdict ; and on motion for a new trial, court ordered the verdict to be entered for the plaintiff, for the sheriff, having once sold under the plaintiff's execution, was answerable to him for the debt (c). And the mere existence of a prior writ does not justify his return of nulla bona, if the goods in his possession were not applied to satisfy it, and having control over them, he was bound to execute the latter ; and where the jury found that a previous bill of sale was frau- dulent, held that he was liable to the second execution creditor {d). If a ji. fa. is fraudulently or msufficiently executed. Fraudulent and no person left in possession, and another plaintiff^ aiothTcomes. gets his execution executed afterwards, the second shall ^^^q^^ good, stand good ; and the sheriff may return 7iulla bona on the first (e). It seems it was left to the jury whether the execution that first came into the house was intended to be executed, or was really executed, and they thought it was not (/). By virtue of this writ, the sheriff, on the seizure of the sheriff hath goods, hath such a property in them that he can main- such a^P^periy tain trespass or trover ; for he has the goods to sell, that ^^^^l Sf his he may have the money in court ; and therefore, when hands, maintain he once seizes them, he has the property in them for that trespass, &c. purpose (g). And if the defendant dies after the writ If he dies. delivered to the sheriff, he may execute the same on the goods in the hands of the executor or administrator of the deceased (h), because the sheriff was entitled to seize them from the time of the writ. But qucsre (i) where he has never had them in his hands. If the sheriff seizes goods in his hands to the value of IHie seizes the debt, and pays part, and is discharged from the office ^°° J ^J ^"^^ without having sold the rest, or having returned his a'ebt, and pays writ ; notwithstanding such discharge, and without any part, and is vend, exp., he may sell the goods remaining in his hands, jJljf sefi with^- and such sale and execution shall be good {k). out a vend. exp. (c) Rybot V. Peckham, cited in 1 (^) Sid. 438, pi. 3. Vent. 52, 53. T.R.TSl. 2 Vent. 218. Mod. 30. pi. 75. 2 (d) Towne v. Crowder, 2 Ca. & Saund. 47. Lev. 282. Salk. 222. P. 3.55. 12 Mod. 130,241. (h) 3 Wils. 399. Comb. 33. 2 (e) Bradley v. Windham, 1 Wils. Ld. Raym. 808, 850. 1073, 12 44. Mod. 130. 241. (/■) 1 Salk. 320. 5 Mod. 375. (T) BilkecIIavelock, SCamp. 374. 1 L. Raym. 251. [k) Roll. Abr. 893. Salk. 323. I 4 120 This writ in- demnifies the sheriff, and therefore he may break open a chest, ike. bnt not the dwelling-house. But if he once gets into the house, there begins the execution. If sheriff be a trespasser, yet if the writ is served and money levied, plaintiff shall have the benefit of it. Protection of house, not for a stranger's goods. Protection of a man in his own house is agreeable to the common law. Not to break open outer doors. May sell an estate for years. EXECUTION. — BY Fl. FA. By this writ the sheriff is commanded to levy the debt of the goods and chattels of the defendant, and he is therefore indemnified as far as he acts necessarily in order to the taking of the goods ; and therefore if he breaks open a chest, in which goods are locked up, or a bam, not adjoining to a dwelling-house, which is made for the conservation of goods only, he is indemnified by the writ ; but he is not by the writ authorized to break the dwelling- house, which is built for the protection of the man and his family (1). If he gets into the house, the doors being open, there begins the execution, for the rest of the house is only for the protection of the goods ; and there- fore he may enter and finish the execution of his writ : But, though the sheriff be a trespasser in the execution of the process, yet when the writ is served, and the money levied, the plaintiff shall have the benefit of it, and the party is left to his remedy against the sheriff (m). But the protection of a man's house extends only to himself and family ; for if a stranger, to elude execution, receives the defendant's goods into his house, then the sheriff's authority shall reach them ; because a design to elude the law shall not be protected by the law : the sheriff might seize him in the stranger's house, because the defendant's leaving his own house has waved the benefit of the law (w). That protection of a man in his own house was very agreeable to the ancient law ; because, in personal contracts, they did only subject their chattels, and not their persons nor freeholds ; and though afterwards, by subsequent laws, the fi'eehold and person were made liable to execution, yet they have not taken away the privilege a man had by common law to defend his own house, which still continues, unless where the execution is by habere facias seisinam., or pos- sessionem (o). The sheriff may not break open any outer doors to execute this writ(jo), but must enter peaceably, and may then break open any inner door belonging to the defend- ant to take the goods (e called on writ by rule of court ; and if he make a false return, will ^,.[t^b"'^"Jig^ be liable to an action (z). The sheriff, by his authority, has a right (as before Sheriff may sell said) to sell a term for years; and if he sells it with the a term for years. general words, " All title, estate, right and interest of the defendant,^' the sale is good, though there be a mis- And if he sells take in the reciting of the commencement or end of such with the gene- lease; for the sheriff hath the same authority to sell the ffVn°&^'" ' defendant's goods, in order to execute the judgment, and is good. (q) Salk. 3C8. (0 1 Show, 173. Comb. 217. ()■) 3 Stark. N. P. 130. Izod v. Salk. 392. Lamb, 1 Jerv. and Cr. Ex. R. 35. («) York v. Fuime, Cro. Jac, 7. (0 Eddie V. Davidson, Doug. (i) 2 Inst. 472. 027, and 3 B. & P. 289. 3 Carr. (v) 2 ]\Iod. 257. & P. 308. (•;) 1 Str. 87. Glib. Exec. 26, 1 Ld. Eiiy. 265. 124 What is suffi- cient to state. May sell an estate pur auter vie, since the Stat. If defendant will go out of possession. Equity of re- demption. Mere equitable interest cannot be taken. EXECUTION. — BY FI. FA. pay the defendant's debts, as the defendant had over his own property ; and therefore as such general words would have passed his chattels from the defendant, so it shall in case of the sheriff, who is to satisfy the defendant's debt. And if the sheriff, reciting that the defendant hath a term for years, sells it by virtue of a fi. fa., the sale is good, for it cannot be intended that the sheriff should certainly know the beginning and end of the term. It is sufficient for him to state that the defendant is pos- sessed of a term of years yet to come and unexpired, and to assign all his interest therein generally, for if he attempt to state it particularly, and fail, the vendee will not have good title (a). And an assignment may be executed by him after he is out of office. Having seized the goods, he is bound to do every act necessary to complete the sale (5). It is said that a sheriff, on a fi.fa. or levari facias, can- not sell an estate for life, which, being a freehold, can be no more affected by these writs than any estate of inhe- ritance (c). But it seems to be admitted that the sheriff, since the 29 Car. 2, may sell an estate imr auter vie{d). If the defendant will consent to go out of possession on sale of the lease, the sheriff may put the vendee in possession ; but he cannot be forcibly expelled. And where the execution is against the landlord, the sheriff cannot turn the tenant out of possession (e). The vendee must bring his ejectment, if he refuse (/). Where the defendant has only an equity of redemption of a leasehold estate, it seems that an execution will not affect it, as the legal estate is in the mortgagee. The plaintiff's only remedy in that case is by fihng a bill in equity to redeem the estate, by paying off the piincipal due on the mortgage (^). It is now decided that a mere equitable interest in a term of years cannot be taken in execution by the sheriff under a writ o^fi. fa (h). (a) Cro. El. 584. Palmer's case, 4 Co. 74. 3 T, 1\. 2) Cowp. 406. {qS R. V. Cripps 3 Bri. 606. (r) 1 B & P. 3.)9. Sed vide Ib^ 300. S. P. Anon. 2 Ch. 390. EXECUTION. — BY FI. FA. The sheriff cannot detain the g-oods on an execution in his own hands, and satisfy the debt of his proper money, but he ouo'ht to sell them upon a vend, exp., and may return, on his so doing-, that they remain in his hands for want of buyers. For the law requires of sheriffs a strict execution and observance of the writs directed to them(s). Neitlier are the goods to be delivered to the defendant, but ought to be sold(^). A sheriff having once seized is bound to proceed, even after he is out of office, and an assignment, therefore, subsequently executed is valid (w). Nor can he retain the proceeds in his hands to satisfy an execution against the original execution creditor (a;). After a return that he has seized but not sold, after a vend, exp., the party becoming bankrupt, and the plaintiff having notice thereof, the sheriff is not bound by such return, being still liable to the assignees (z/). When the sheriff has, by virtue of the Ji. fa., seized any goods, the property of the goods is altered by the authority of the law ; and therefore if a writ of error be brought, and a supersedeas issues, it does not hinder the sheriff from proceeding to sell on such execution, and he may do it after such supersedeas, which is no more than a restraint from proceeding on that writ, if he has not already proceeded upon it, and is not a writ of restitu- tion to restore the goods, if he has already altered the property : and therefore if the property is altered, he is at liberty to proceed according to the command of the first writ, since the property was altered by such writ before the sujjersedeas ; but if the supersedeas had issued quia improvide, because irregularly, there the defendant should have been restored to the goods, for such super- sedeas is in the nature of a restitution, for it sets aside the fi. fa. because it issued irregularly. If the sheriff has seized goods on the fi. fa., though the plaintiff in error has a supersedeas afterwards, by which the sheriff is ordered to stop further execution, yet the property of the goods being altered by the seizure, the sheriff may sell them ; and if he does not, the court will award a vend, exp., even though the original record be removed ; for 129 The sheriff can- not detain goods in his own iiands and satisfy the debt, but he ought to sell. Goods ought not to be de- livered to the defendant. By seizure the property of the goods is altered, therefore if error be brought, and a supersedeas issues, it does not hinder sale. But if super- sedeas issued irregularly, then defendant to be restored. If the sheriff has seized, though plaintiff in error has a super- sedeas, yet the property being altered, sheriff may sell. (s) Noy, 107. Langdon v. Wal- lis, T-utw. 5b9. (0 2 Vent. 95. (k) Doer. Donston,! B.&A.230. (i) Padfield V. Brine, 3 Br. & B. 294. (v) Biydges v. Walford, G M. & S. 42. K 130 If sheriff returns that he has goods to the value of 72/. which remain, &c. he may sell them for less. Yet if he values them so high as none will buy. No appraise- ment on fi. fa- If sheriff levies 20 /. of goods, and sells for 40/. But if he re- turns, taken cattle to the value of 100/. and they die for want, plaintiff shall have the value. If he levies, though no re- turn, he is liable to an action. EXECUTION. — BY ELEGIT. upon filing the ji. fa. there is a record in court sufficient to ground further process upon (h). Where it appeared that a writ of error had been allowed the day previous to the seizure, though no notice was given until after, held that the writ was a supersedeas from the time of its allowance (i). It was, however, afterwards decided, that the sheriff ought to have re- turned that such writ of error was allowed, and then the court would have relieved him, but that the return of nulla bona was bad, and therefore the plaintiff entitled to nominal damages. If the sheriff returns that he has goods to the value of 72 /. which remain in his hands for want of buyers, it is no estoppel, but that he may sell them for less ; for it appearing on the return that they are not sold, but that they remain in specie in his hands, the value cannot be so set but that it may be altered between that and the sale ; therefore, if on the vend, exp., it appears that he has sold those goods for less, the plaintiff may have a new execution for his debt (A). Yet if the sheriff values them so liigh as none will buy them at that rate, he must himself (Z). It is said, on 2i fi. fa. there need no appraisement, but on an elegit there must(m). If a fi. fa. be awarded to the sheriff to levy 20 Z., and he sells to the value of 40 1., and returns the fi. fa. with the 20 Z. in court, he may detain the surplusage until demand made of it ; for he is not bound to search out the defendant. He ought not to take more than will satisfy {n). But if the sheriff returns that he has taken cattle to the value of 1 00 1., and they die aftenvards for want of meat, the plaintiff shall have the value from the sheriff, because by the sheriff's own default it is become impos- sible that it should be reduced to any other certainty than what is mentioned on the return (o). If the sheriff levies the money upon a fi. fa., though he makes no return upon the writ, yet an action of debt. (h) Gilb. Exec. 23. (i) Cleghorn v. Desanges, 3 B. Moore, 83. 1 Gow. N. P. R. 66. (k) Cro. El. 598. Cro. Jac. 515. Godb. 276. (/) R. V. Bird, 2 Show. 87. (/n)Beeleyt). Sampson, 2 Vent. 95. (7i) Noy, 69. (o) Cro. Jac. 515. Godb. 276. Hob. 205, 206. Danv, Abr. 79. EXECUTION. BY FI. FA. 131 account, or assumpsit, lies against him and his executors, because it is a debt in the sheriff by the levying the money, and the defendant, by the sheriff's levying the money upon him, can, on a sci. fa. to have execution, plead this in bar, or upon a second /i. fa. relieve himself by an audita querela : for the lien of the judgment is discharged by the sheriff's executing the w^rit ; and if the plaintiff" liad not this action against the sheriff he would be remediless, (p). But it is not sufficient to show that the levy was made by a known officer ; the writ or war- rant must be produced {(j). The action lies if his bailiff receives the money, and he returns the goods unsold (r). So it is a false return that " the goods remain unsold for want of buyers," if he has had an inadequate price offered him (s). But where an action for money had and received had been commenced against the sheriff for the money levied, without any previous demand, the court staid the action, and without costs (t). And where the bailiff, by direction of assignees who claimed the goods, sold the same, and retained the sur- plus in his hands, held that as he was to be regarded as their agent, and acting by their authority, the sheriff was not liable to them (m). If he do retnrn fieri feci, the plaintiff may proceed by if return of ^. rule of court, or action of debt, founded on his return to feei be made. recover it. An execution, being an entire thing, cannot be super- Error a snper- seded after it is once begun ; therefore if a writ of execii- f ^'^."^ 'f sei-ved tion be executed before a writ of error allowed, or notice, "^ ^^^^' it may be returned afterwards : and the utmost length of time the law allows for executing a writ is the day whereon it is returnable : so long as it is executable, but not executed, the allowance of a writ of error is a super- sedeas, but not afterwards (x). But in a late case, where But if bail be the sheriff entered after service of allowance of writ of not put '"• error, and no bail being put in pursuant to the statute, 00 Sir W. Jones, 430. Roll. (s) Barnard t^ Leigh, 1 Stark. 41. Abr. 598. 921. And see Dale i'. (t) Jefferies r. Sheppard, 3 B. & A. Birch, 3 Camp. 347. 696. 1 Br. & B. 370. (q) Wilson r. Nomian, 1 Esp. 154. (u) Coxe v. Palmer, 6 B. & Cr. Drake v. Sykes, 7 T. R. 113. 739. ()•) Jones I), Wood, 3 Camp. 228. (r) 1 Salk. 321. K 2 132 If defendant pays the sheiiff before entry he cannot enter afterwards. If there remain a surplus after sale. If goods once legally seized. If a tender is made of the debt. If sheriff levy and give the money to the plaintiff. Payment on a Ji.fa. a good plea. If he takes goods may sell at any rate, for ready money. EXECUTION. — BY FI. FA. the court held the writ of error became an absolute nullity, and was no supersedeas {y). If the sheriff have a^. fa. against a man's goods, and before execution he pays him the money, in this case he cannot do execution after, and if he do, trespass hes. Nor can he deliver them to the plaintiff in satisfaction of the debt, but he must return to the court the execution of his writ {z). Nor can a court of equity set aside a sale to the plaintiff (a). If upon sale money remain in the hands of the sheriff heyond the debt, the sheriff 7nay keep it till the defend- ant demands it, and need not deliver it to the defendant before request (b). If goods be once seized and in custody of the law, they cannot be seized again by the same or any other sheriff (c). This, however, means legally seized : for if any thing happen to dls-affirm the first seizure, and to show it was not legal, it is considered as no seizure in law (d). And he cannot resume possession of goods, if once abandoned, after the return of the writ (e). If ^. lend money on the security of a ship, and take possession before execution executed at the suit of ^., the vessel cannot be seized under ^.'s execution (^J. If the defendant tenders the debt, it is wrong for the sheriff to sell the goods (g). If the sheriff levy the money and give it to the plaintiff, though he never made any return to the court, it is good enough (h) ; for the end of the execution is answered : and if paid over to assignees with knowledge of the plaintifij he being one, it is a sufficient ratification of the payment to discharge tlie sheriff (i). Payment to the sheriff on a fi. fa. is a good plea, because he hath authority to levy the debt (A). When a sheriff takes goods in execution, he may sell them at any rate, if defendant refuses to pay the debt. (y) 2 T. R. 45. (s) Cro.E1.504. Noy, 56. Dalt. 529. (o) Stratford v. Twynam, 1 ,Tac. 418. (6) Noy, 52. (c) 1 Show. 174. (d) Far v. Newman, 4 T. R. 651. (e) Ackland v. Paynter, 8Pri. 95. (/) Ladbrooke v. Crickett, 2 T. R. C49. (») 1 Keb. 655. (/() 4 Rep. 64. (i) Tomlinson v. Shynn, 2 Br. & B. 77. (/v) 2 Lev. 203. Taylor v. Bekon, 2 Jon. 97. Skin. 665. 5 Mod. 296. EXECUTION. BY FI. FA. 133 and for ready money, because he is immediately charged to the party for whom the sale was (/). And although a plaintin is not bound by the price of the goods at the sale, yet if he were as assignee bound to sell it might be a mir measure of damages {7/1). This writ does not abate by the plaintiff's death, but Does not abate the sheriff must go on to execute it (n). ^y ^^^^^• The court will not compel a sheriff to amend his Amending return to a Ji. fa. by specifying the several goods sold, ^ return. where no criminal act is shown. In case of waste, or other misconduct, the remedy is by action (o). If the purchaser, by omitting to demand the goods until after the sheriff is bound to pay over the money, prevents his satisfying a lien claimed by the party who holds them, the sheriff is not liable to the purchaser (p). In actions on simple contracts and judgments for a Expenses of, debt certain, the expenses of levying must be paid by the Wing. plaintiff, who is then the party grieved, under the 29 JEl. ; c. 4. but if it be for a penalty, then by the defendant (q). In debt on simple contract, where there is judgment by default, the plaintiff may not levy the expenses of the execution, though the whole does not exceed the debt upon record (r). In an action against the sheriff, whatever would be Evidence evidence against the principal is also admissible against against the the sheriff ; as an admission of receipt of notice of dis- ^•^^"^• honour of a bill (s). Applying for Time. If the sheriff be called on to return the writ, and the As to time to property of the goods disputed, which frequently hap- make retma. pens on a commission of bankrupt, &c., he may apply for time to make his return, on bringing the money into court, till the right be tried between the contending par- ties, or one of them has given a sufficient indemnity (i). (0 Vent. 7. Moiley v. Staker, 6 {q) 2 T. R. 157. 3 B.& P.362. Mod. 83. (r) 3 B. & P. 362. (jTi) Waterhouse v. Atkinson, 3 (s) Williams v, Brydges, 2 Stark. Can. & P. 345. 42. (n) Mod. Cas. L. and Eq. 225. (f) Semple v. Ld. Newhaven, 2 Bl. Salk. 322. 6 Mod. 290. R. 1064. M. 24 Geo. 3. B. R. ; and (o) Willeti). Sparrow, 6 Taunt.576. Hill d. Hook, E. 26 Geo. 3. B. R. (p) Duncan v, Garratt, 1 Carr. 7 Term Rep. 177. K P. C. 169. K 3 134 EXECUTION. BY Fl. FA. And the court of K. B., upon a suggestion of a reason- able doubt, whether the goods seized under the ji. fa. were not covered by an extent afterwards issued at the c. 37. s. 21. suit of the crown for malt duties, under the 28 G. 3, enlarged the time for the sheriff to return the writ, for the purpose of inducing the plaintiff to go into the court of Exchequer, and there contest the question of right with the crown in a more eligible manner than in this court (m). And Lord Kenyan said, that it was not merely for the sheriff's asking that the court would grant him time to make his return, but there must be some rea- sonable doubt suggested. This is a case in which it may be difficult to decide whether the goods are bound by the extent or liable to the plaintiffs execution. It appears that the court of Exch. have anxiously endea- voured to put the case in such a situation that all the par- ties interested may come in and support their respective claims; therefore I think that the sheriff ought not to be put to the difficulty and hazard of deciding in this case, where there is a shorter mode pointed out of deter- mining the rights of all the parties : a decision here will not decide the rights of the crown ; whereas by the determination in the Exchequer, all the parties will be bound {x). Kfi.fa. be jf ^ fi. fa. issue against one of several partners, the SS partners, ^^urt Will not, at the request of the partnership creditors, give the sheriff time to return the writ until account be taken ; and it was observed, that the safest line for the sheriff to pursue, was to put some person into possession of the defendant's share as vendee, leaving him and the parties interested to contest the matter in equity ( y). Protection to Sheriff. The court will interfere to protect the sheriff where the property in goods is disputed, and both parties refuse to indemnify him {z). Where the assignees of the debtor and the creditor refuse to indemnify the sheriff, the court will protect him proceeding to sale under the fi. fa. after notice of bank- (m) Wells V. Pickman, 7 T. R. (s) M'George v. Birch, 4 Taunt. 174. 585. Beavan v. Dawson, 6 Bing. (i) 1 Taunt. 120. 1 East, 338. 566. Of) 3 B. & P. 288. EXECUTION. — RY FI. FA. 135 ruptcy from the former(a). And they will protect him proceeding to a sale after notice of bankruptcy, where both parties refuse to indemnify him. Where defendant became bankrupt after the levy, and his assignees claimed the goods, and plaintiff refused to indemnify the sheriff, the court stayed the return of the writ (6). So where an action had been commenced against the sheriff after the time for returning the writ had been enlarged, the court made the rule absolute for staying the proceedings and indemnifying the sheriff on terms (c). And now, the more effectually to relieve sheriffs and Relief by mo- other officers executing process against goods, to which jj^g" j^!"^^'* third parties make claim, it is now provided by 1 & 2 W. 4. c. 58. s. 6, that upon such claims being made to goods taken or intended to be taken in execution, such sheriff or officer may apply to the Court, before or after the return of such process, and before or after any action brought against such sheriff, to call before them by rule of court, as well the party issuing such process, as the party making such claim, and for the adjustment of such claim to make such rules and decisions as shall appear just, and the costs of such proceedings to be in the discretion of the Court ; such rules to be en- tered of record and made evidence, as of any other judgment. Upon this act some important decisions have taken place, which it is material to notice. Where the sheriff had voluntarily put himself into the situation from which he sought to be relieved, the Court refused tlie application (^). There must have been an actual claim made ; mere apprehension is insufficient to found the jurisdiction (^). So a mere notice of bankruptcy is insufficient (^). And he must apply promptly, or he will be held to have made his election ("*). (a) King V. Brydges, 7 Taunt. 29 1 ; Semb. contra Skipper v. Lane, 10 and Burr v. Creethy, 7 B. Moore, Bing. 704. SOS ; and vide wfra Return of Writs. (') Bentley v. Hook, 2 Cr. & M. l^/») Ledbury v. Smitli, 1 Ch. 294. 420. (c) Probinla V. Roberts, 1 Ch. 577. C) Cook v. Allen, 1 Cr. & M. (') Belcher v. Smitli, 9 Bing. 82. 512; Devereux v. Johnson, 1 Dowl. {'^) Isaac V. Spilsbuiy, 10 Bing. 3 ; P. C. -348. 4- K 4 laC EXECUTION. — BY FI. FA. So if he has accepted au indemnity which he is not bound to accept (^). Nor will the Court relieve him where he has parted with the possession (^), or paid over the proceeds of the levyC). The act being highly beneficial to the sheriff, the Court will not give him costs upon the rule, nor of keep- ing possession; but if the execution creditor does not appear, will direct him to withdraw from the posses- sion (^). Where the claimant obtained leave to open the rule, the Court allowed the sheriff the costs of a second ap- pearance. Costs. The sheriff, if he acts fairly, will not be liable to pay costs ; but where he omitted to pay the rent, and the landlord, claiming in proper time, was made a party to the rule, the Court held the sheriff liable for Ixis costs ("), and where a distress was on the goods at the time of the levy, he was held bound to satisfy it, and the Court re • fused to relieve him(^**). And if he brings parties be- fore the Court, having no foundation for their claim, he will be liable to costs (^^). But where neither party ap- peared, the Court gave costs to the sheriff as well as to the plaintiff (^^). On such application the sheriff is not bound to deny collusion C'^). Where execution creditors in different courts are claim- ants, the Court will not interfere ('"'). Cause cannot be shown at chambers against a rule nisi, obtained by the sheriff(^^). With respect to the King's Debts. 5:.39;s. 74. ^ By 33 H. 8. the king's debt shall be preferred before be preyrred to ^^^^ ^"^^ ^^ ^"Y Person, and shall have first execution, (5) Levi V. Champneys, 2 Dowl. (") Bishop v. Hinxman, 2 Dowl. 454. P. C. 1G6. C) Chalon v. Anderson, ^ Tyrw. ('2) Philby v. Ikey, lb. 222; S.P. 237. Lewis v. Eickey, 2 Cr & M. 321. C) Anderson v. Calloway, 1 Cr. ('■') Dobbins v. Green, 2 Dowl. & iM. Ex. 182. P. C. 509 ; Downiger v. Hinxman, («) Field V. Cope, 2 Cr. & Jerv. lb. 424. 480; Bowdlerv. Smith, 1 Dowl, 417; ('^) Bragg v. Hopkins, 1 Dowl. Bryant v. Ikey, lb. 428. P. C. 151. (9) Clarke J. Lloyd, 2D0VV.P.C. 59. C^) Shaw v. Roberts, 2 Dowl. P. ('") Havtliom v. Bush. 2 Dowl. C. 25. P. C. 641.'^ EXECUTION. —BY FI. FA. 135* SO that his suit be taken and commenced, or process iliat of the sub- awarded for the debt at the suit of the king, before ^'^^^' judgment be given for the said other person. ' If the king's extent be sued out jwsterior to a judg- if extent be ment recovered by the subject, and execution thereon posterior to delivered to the sheriff, though not executed, the king ^''/j;;;^*' ^^.^ shall not be preferred (d). Hvered to the sheriff, the king shall not be preferred. If goods be taken on a.Ji-fa. against the king's debtor, But if goods be and, before they are sold, an extent comes at the king's beforeTxteny"' suit, grounded on a bond debt tested after the delivery comes, tested of the fi. fa., these e'oods cannot be taken upon the after delivery of It seems to be understood to be clear and settled, that if an extent at the suit of the crown be tested prior to the time when the subject's execution is delivered to the sheriff, the former shall have the preference. But as by the common law, abridged as it is by the statute of frauds, the property of the debtor's goods is bound by the delivery of the writ to the sheriff, there then remains no property in the debtor on which the prerogative of the crown can attach. Now in this case the sheriff had actually seized the goods under the execution ; and an An execution execution once begun shall proceed ; it shall not stop on once begun the issuing of a commission of bankrupt against the ^'^^'' proceed, debtor: and, in this respect, I know of no distinction between the case of the crown and that of a subject. When the king and the subject stand in an equal degree, If king andsub- the former shall prevail ( f). i^^^ f ^""^ '" •^ r ^./ ' equal degree. But where the crown process does not come in until after sale and delivery by the sheriff, the property is so altered that the execution creditor may maintain an action for the money as had and received on his ac- count (^), Where the sheriff refused to permit a witness to be ex- (d) Uppom V. Sumner, 2 Bl. R. U. v. Sloper.G Pri. Ill ; R. v. Wells, 1251 . Com. Dig. 538. R. v. Giles, 16 East, 278. 8 Pri. 293 ; and 11 lb. 594. (/) Per Ld. Kenyon, 4 T. R.411. (g) Swain v. Moiland, 1 Br.&: B. (r) Rorke v. Dayvcl!, 4 T. R. 402 ; 370. _2_ K 4* 13G* r.XECUTlON. — BY FI. PA. amincd to prove the property taken under the extent, or a question to be put in the nature of a cross-examination, the court quashed the writ (A). A return to an inquisition, not finding any fact pre- cisely from which a conclusion can be drawn, so as to enable the party to traverse, is bad, and a new one must be issued (i). For more relating to extents, see title Return to Writs, and 56 Geo. 3. c. 50. infr. 140. c. 14. s. 1. No goods, &c. shall be taken in execution, unless the party, before removal thereof, pay the landlord the rent due. Proviso not to hinder the queen to levy any debts due to the crown, or fines. s. 8. Landlord. A T common law, executions took place of all debts -^ that were not spexijic liens, even of rents due to land- - lords : it was thought hard that landlords should not have something like a specific lien ; to remedy which, by 8 A7ine, it is enacted, " That no goods upon any tenements leased shall be taken by any execution, unless the party at whose suit the execution is sued out shall, before the removal of such goods, pay to the landlord of the premises, or his bailiff, all money due for rent of the premises, provided the arrears do not amount to more than one years rent ; and in case the arrears shall exceed one year's rent, then the party at whose suit, &c., paying the landlord, or his bailiff, one year's rent, may proceed to execute his judgment ; and the sheriff is required to levy and pay to the plaintiff, as well the money paid for rent, as the execution money. " Provided that nothing in the act contained shall extend to hinder her majesty, her heirs, &c. but that it shall and may be lawful for her majesty, &c. to levy, recover, and seize such debts, fines, penalties and forfeitures, in the same manner as if the act had never been made." But before he pays it, he must have some evidence that it is due, or if it turn out that none is due, he is liable to answer for it (A). And as the property is changed by a commission of (li) R. V. P.ickley, 3 Pri. 454. (0 R. V. Sherwood, 3 Pii. 209. (k) Keightlcv v. Birch, 3 Camp. 521. EXECUTION. B\ FT. FA. 137 bankruptcy, the slieriff must prove that he had paid over the rent, without notice of the commission issued (Z). This statute extends to execution for the defendant as Executors and well as the plaintiff (w). This statute is confined to exe- ^^'|™i';^''j5;f °J^ cutions on judcjmentsin). And it has been determined ''"'^"" '^^ ^^ • that the executor of a landlord should have the benefit of this act, as well as the landlord himself, for it is an in- terest vested (o). So also an administrator (p). But where goods were taken, and the money levied before administration taken out, it was held, that as the exe- cution was executed, he came too late {q) : this means that the goods were actually sold. But Powis,J., seemed to be of opinion to the contrary, who held, that the admi- nistration should have relation to the death of the intes- tate, because, by the ecclesiastical law, it is not to be granted within fourteen days of an intestate's death ; which the other justices denied, and said, that relations being fictitious ought not to hold place against the right of strangers (?'). The landlord's rent must be paid, without deduction of iMust be paid poundage or expenses (s). J^^^^'°^^ ''^*^"^- A ground landlord of a house in which an under- A ground land- lessee dwelt, and against whom an execution was sued, 1°'^ "ot^ w'^''*" held not within the statute, which extends only to the immediate landlord {t) ; and such an undertaking is not within the statute of frauds (?^). The rent must be that at the time of taking the goods, and not that which accrues after and during the continuance of the sheriff in possession {x) ; and during an existing tenancy, not where determined by eject- ment (?/). It seems that the privilege also extends to cases where by the terms of the demise, forehand rent is due; and it is sufficient for the landlord to prove only the demise (0 Lee V. Lopes, 15 R. R. 230. (5) Str. 97. Fortesc. Rep. 4G0. (m) Henchetl 1;, Kimpson, 2 Wil- (r) Gilb. Eq. Rep. 223, 224. 11 son, 140. Vin. 133, pi. 29. (jj) Brandling v. Barrington, G B. (s) Str. 643. & Cr. 467. (0 2 Str. 787. (o) Fortes. Rep. 359, SCO ; Stia. (w) ^ Esp. 66. 214. (r) 1 M. & S. 245. (;>) Str. 212. (v) 5 B. & Al. 88. 4- K .'> 138 Landlord must give notice to the sheriff of rent due. When there are two executions, landlord cannot have a year's rent on each. EXECUTION. — BY Fl. FA. and occupation, and that it is for the defendant to show that all the rent has been paid(2r). So where premises were agreed to be assigned, and 100/. a-year was to be paid, half-yearly, until the pur- chase completed, held that the sheriff might treat it as a rent and deduct it (a). Where an officer executing an extent improperly con- tinued on the premises for a longer period than he ought, the court would not peniiit the rent accruing subsequent to the seizure to be paid out of the proceeds, but left the landlord to his action against the tenant for use and occupation, or the officer for wrongfully continuing on the premises (b). But a trustee of outstanding terms, in trust for a mort- gagee, held to be within it, and that the sheriff could not remove goods without satisfying a year's rent (c). As the landlord is entitled to one year's rent, he ought therefore to give notice to the sheriff of its being due, for the sheriff is not bound to retain without, nor to know who the landlord is, or what rent in arrear, with- out such notice ; and it is said an action will not lie without such notice (d). But the sheriff will be equally liable to an action, though no notice is given to him of rent being due, if it can be show^n that he had knowledge of the landlord's claim by other means (e) ; and he is liable until the goods are sold (/). And if he has once removed the goods, he cannot exonerate himself by bringing them again to the premises, for the landlord had lost his remedy of distress whilst in the sheriff's custody {g). After the landlord had a year's rent paid out of the execution money, according to the statute, there came another execution, and another year's rent demanded ; held, that the intent of the act was to continue a lien as to one year, and to punish him for his laches, if he let more run in arrear (/;). (z) Harrison v. Bariy, 7 Pri. GOO, (n) Saunders v, Musgrave, 2 Carr. & P. 294 ; and see 5 B. & A. 322. (b) K.r. Hill, G Pri, 119. (c) Colvcr V. Spcer, 2 Br. cS: B. G7. (J) Waring v. Dewbury, 1 Str. 97. Smith 7). Russel, 3 Taunt. 400, (c) Andrews i', Dixon, 3 B. & A. G45. (/) Arnitt v. Garnett, Hj. 410. (ir) Lane v. Crockett, 7 Pri, .5GG. (h) Str. 219. 1024. EXECUTION. BY FI. FA. If an extent comes in, the landlord cannot claim his rent, although distress taken the day before (i). So on extent, or an outlawry, although he had distrained three days previous to the entry, and motion to be paid under 8 Ann. denied (k). If a distress be taken 29th October, and an extent dated 4th November, and corn, &c. seized, the landlord cannot have his rent, for no property v^^as devested by the distress, and they w^ere in the landlord's hands by way of pledge (Z). But an attachment was refused, although a contempt to oppose the extent. An immediate extent against the king's debtor, tested after a distress taken for rent justly due to the landlord, with notice to the tenant being the king's debtor, and appraisement of the goods and chattels, but before sale, shall prevail against the distress (m). If notice has been given to the sheriff of the rent being in arrear, and he will not pay, the landlord may move the court to have the same paid out of the money levied, or he may bring an action (w) ; but not money had and received (o). And if the landlord accepts an undertaking (which turns out to be invalid for not expressing the considera- tion), he cannot afterwards sue on the statute (p). If the goods seized be not sold or removed by the she- riff, so as to transfer the property therein, but defendant pays the debt and costs, though the landlord has given notice, and demanded the rent, yet he is not entitled in such case (q). A bill of sale was made by the sheriff; this was held to be a removal of the goods taken hyfi.fa. (r). In several cases a distinction has been taken between proceedings at the suit and for the benefit of the crown {s), and an outlawry in a civil suit ; and in the latter instance it was ruled, that " the landlord ought to be satisfied a year's rent, because a capias utlagatum, at the suit of the party, is to be considered only as a private execution." {t) 139 Landlord not entitled to rent on an extent, although he dis- train previous to the entry, for no property is altered. An immediate extent prevails against the landlord's dis- tress, though taken before extent entered. Landlord's remedy. If not sold. Bill of sale made, held to be a removal. As to rent on a cap. utlag. 47. (0 Bunb. 269, pi. 345. (fc) lb. 5, pi. 5. CO lb. 42. Vent. 37. 2 Saund. 24. (o) Green v. Austin, 3 Camp. 268. (/)) Rotherey v. Wood, 3 Camp. (m) R. V. Cotton, Park.R. 112. («) Henchett i'. Kimpson, 2 Wils. 140. Palgrave v. Windham, 1 Str. 212. (q) Sell. Pr 489. (r) West V. Hedges, Barn. 211. {s) Bunb. 194. lb. 5. 109. (O Lawrence, J., St. John's Coll. iMurcott, 7 T. R. 264. 140 EXECUTION. — BY FI. FA. But if the outlawry be reversed, it would have been contrary. c. 50. The 56 Geo. 3, for preserving covenants to landlords, where crops are taken in execution, does not extend to the process of the crown {u). Of the old Sheriff's Authority. Old sheriff may, The old sheriff may sell by virtue of the_^. fa. after if he take goods j^g jg q^^ ^f office, and without a vend. exp. ; for by the withcmt a i'e«rf- ^^^^ure he is answerable for the value of the goods to exp., if not, new the parties ; though if he returns that they be upon his sheriff to be hands for want of buyers, this is a good return ; but if IS raine . j^^ does not sell them, there shall issue a distringas to the new sheriff to distrain, the old one to sell and bring in the money to the new sheriff, so that he may have it ready {x). But no vend. exp. goes to the old sheriff, because he ceases to be an officer of the court ( y). It is stated that a venditioni exponas may issue, directed to the new sheriff, where the old one returns that he has taken goods which remain in his hands for want of buyers {z). And although it is usual for the sheriff to make a bill of sale to the plaintiff's friend for the amount of the appraisement, the plaintiff cannot compel the sheriff so to do, though he make a promise {a). Vide title Preceding and Succeeding Sheriff. No remedy for sale under value, unless, &c. If sheriff sells a term, and judgment re- versed, party to have the money. In what Cases after Sale Restitution shall he. No remedy lies against the sheriff for the sale under value, unless it be by covin (b). If the sheriff sells the term by virtue of a fi. fa., and the judgment is reversed by writ of error, the defendant shall not be restored to the thing in specie, but in money for which it is sold ; for the fi. fa. gave the sheriff autho- rity to levy the money de bonis, of the goods, so that he was obliged to turn the goods of the defendant into money, and, therefore, the restitution must be of what the execution had taken from him, which was money ; and not of the tenn itself, for then nobody would buy ; and, therefore, a stranger's interest, which comes to the term t. (u) R. V. Osborne, 6 Pri. 94. (a) 6 Mod. 299. Salk. 323. 2L. Raym. 1074. (v) Godb. 276. (2) 2 Saund. 343. (a) Cowp. 403. (6) Keilw. 64, pi. 2. EXECUTION. — BY LEV. FA. 141 If sold fori 00 i. and worth 1,000 L shall have the 100 l. by due course of law, cannot be affected by reversing of a judgment between the parties, to which he is in no wise privy, provided the sale be without fraud (c). Sale of a term upon an execution by a sheriff for lOOZ. to a stranger, though it was worth 1,000 Z., yet, upon reversal, he shall not have the term agam, but 100 Z. only (tZ). Where a bill was brought to vacate a judgment, only (under which a lease was extended and sold by the "sheriff Where an to one Parker, in trust for the defendant, the conusee of account was t/ *^ ' -t OrClGrGCl 3,11(1 3l the judgment,) and to have the bill of sale set aside, and reconveyance. an account of the profits, also a writ of restitution of the possession, the lease being of greater value than extended at. And, upon hearing, a decree was made to account and reconvey. Where the plaintiff has execution, and the money is levied and paid, and the judgment is afterwards reversed, there, because it appears on the record that the money is paid, the party shall have restitution without a set. fa.; otherwise where it was levied, but not paid, for then there must be a sci. fa. suggesting the matter of fact, viz. the sum levied. But where judgment is set aside after execution for irregularity, there needs no sci. fa. for restitution, but an attachment shall be granted upon the rule for contempt, if there be not a restitution, provided such rule orders the money or goods to be restored (e). By Levari Facias. A THIRD species of execution is by writ of levari ^^^ facias, which affects a man's goods and the profits of his land, by commanding the sheriff to levy the plain- tiffs debt on the lands and goods of the defendant, whereby the sheriff may seize all his goods, and receive the rents and profits of his land till satisfaction be made to the plaintiff (y). It is said that the sheriff may not only sell the goods, but also collect the debts out of the profits of the land, as corn or grass growing thereon, yet, in neither case, hath he authority to meddle with the debtor's lands, so as to sell or deliver such lands to the creditor, in satisfaction of his debt(^). Little use is (c) Mod. 673, pi. 788. (d) Yelv. 180. Goodyer y. Junca, Cro. Jac. 246 Peyton v. Ayliffe, 2 Vern. 314, 315, pi. 302. Vide Gas- coigne v. Stut, 3 Ch. Eep. 32. (e) 2 Salk. .588. Tidd, 924. (/■) Dalt. 144. (g) 3 Co. 11. Co. Lit. 290, b. 2 Inst. 450. Plowd. 441. Comb. 470. Levari facias afiects a man's goods and pro- fits of the land, May not only sell the goods, but collect all the debts out of the profits of the land, as corn and grass growing, &c. 142 Little use is now maile of this writ. c. 50. The most an- cient in the law. Now used where sheriff returns a bene- ficed clerk. EXECUTION. BY LEV. FA. Bishop may name seques- trators, or the party. Sequestration to be duly published. Otherwise it has no prioiity. now made of this writ ; the remedy by elef/it, which takes possession of the lands themselves, being much more effectual. And as to the sale of farming stock taken in execution, it is now regulated by 56 G. 3. It was the most ancient judicial process of the law, though it now continues only in three cases, in the county and manor court, recognizances in Chancery, and a recovery against the heir on the lands of his ancestor by descent (/<). It is also used where the sheriff on a fi. fa. returns that an ecclesiastic is a bene- ficed clerk, not having any lay fee. On the return, this writ of levari or fi. fa. goes to the bishop of the diocese wherein the benefice is, commanding him to levy the sum recovered of the ecclesiastical goods, &c. which are not to be touched by lay hands ; and thereupon the bishop sends out a sequestration of the profits of the clerk's benefice, directed to the churchwardens, to collect the same, and pay them to the plaintiff, till the sum be raised {i). The bishop may name the sequestrators himself, or may grant the sequestration to such persons as shall be named by the party who obtained the writ. If the sequestration be laid before the return of the writ, the mean profits may be taken by virtue of the sequestration after the writ is made returnable, otherwise not {k). The sequestration shall be forthwith duly published, by reading it in the chvu'ch during divine service, and afterwards at the church-door, and fixing a copy thereon ; for where a sequestration was made out, and not pub- lished while the writ was in force, but was stayed in the register's hands by the desire of the plaintiff's attorney, the court held that it had no priority as against other sequestrations afterwards made out and duly published ; but that if it had been published, the execution would have taken effect, and must have been first satisfied, notwithstanding it was then returnable (Z). It is a continuing execution, and levy may be made after it is returnable, but when actually returned the bishop's authority is at an end. The mode is to rule the bishop from time to time to return what has been levied ; and the court will permit a return to be amended by insert- (/i) Bract. 440, F.N.B. 2G5, 2GG, (k) 3 Burn's Eccl. L, 317. Reg. 300. (/) Legassicke v. B. of Exeter, 1 (i) 2 Burn. Eccl. L. 339. Cromp. 359. E. 22 Geo. 3. K. B. EXECUTION. — ELEGIT. 143 ing the sum levied vip to the time of its being actually returned (m). This writ also issues out of the Exchequer to levy it issues out of debts due to His Majesty : and the iroods seized, as well the Excliequei- as the lands, are to be appraised, and delivered over to d°ue^to the kino- the party, according to the appraisement. Also it issues out of Chancery to compel appearance and performance of its decrees, and has the same effect to bind the goods as a ji. fa., and if not duly proceeded in, a seizure under a subsequent ji. fa. will have the priority (?i). See 3 G. 1. for poundage. It is said, upon a levari facias to levy the yearly value c. 15. s. 3. of 55 Z. found by inquisition on an outlawry upon a judg- The beasts of ment in debt, the beasts of a stranger levant et couchant a>tranger, /er«»t on the land may be taken, for they are the issues of the may'be'taken land ; and were it otherwise, it would be in the power of after outlawry. the party, by agisting his lands, to defeat the king of the benefit of the outlawry (o). But not on a fi. fa. for the queen's debt {p). Though one be in execution for the king, yet a levari facias lies de bonis et catallis, and by such writ the sheriff may take ready money ((7). The sheriff is authorized in suing out a levari facias in order to levy a fine imposed upon a party convicted, before the expiration of the sentence of imprisonment, and though done without the immediate authority of the crown, yet the crown may sanction and adopt it after- wards (r). The court refused to order him to sell certain books of a blasphemous nature, specified in his return, but quashed the return (s). If he wilfully forbear to sell goods seized for an unrea- sonable time, an action on the case lies, but the question of reasonable cause of delay is for the jury {t). Elegit. 'T'HE fourth species of execution is by an elegit, which ^i^^^^ is a judicial writ, given by 13 Ed. 1. either upon (m) 2 H. B. 582. (p) Cro. El. 431. 1 Roll. Abr. («) Payne t-. Drewe. 4 E. R. .523. ^^f . f^^- ^^}-^ •' (7) 2 Show. 166. (o) 1 Salk. 39.5. .5 Mod. 112. (?•) R. v. Kinnear, 2 B. & A. 609. Carth. 441. Skin. 617. Comb. («) R. c. Carlisle, 1 D, 6c Ry. 474. 434. 469. (f) Carlisle v. Parkins, 3 Star. 165. 144 By tlie common law a man could have only satis- faction of goods, &c. and not possession of the land. The statute granted this writ, 13 Ed. 1. c. 18. If goods not sufficient, then a moiety of the land. Until this sta- tute lands were not liable to debts, nor aie copyhold lands now liable, un- less a debt due to the king. Because he is the grand su- perior lord of all estates. After elegit cannot take the body, if there are lands ex- tended. EXECUTION. — BY ELEGIT. a judipiient for a debt, or damages, or upon the for- feiture of a recognizance taken in the king's court. By the common law, a man could only have satisfaction of goods, chattels, and the present profits of lands, by the two last-mentioned writs of fieri facias or levari facias, but not the possession of the lands themselves ; which was a natural consequence of the feudal principles, which prohibited the alienation, and of course the encumbering of the fief with the debts of the owner. And when the restriction of the alienation began to wear away, the consequence still continued; and no creditor could take the possession of lands, but only levy the growing profits : so that if the defendant aliened his lands, the plamtiff was ousted of his remedy. The statute granted this writ (called an elegit) because it is in the choice or election of the plaintiff whether he will sue out this writ, or one of the former, by which the defendant's goods and chattels are not sold, but only appraised ; and all of them (except oxen and beasts of the plough) are delivered to the plamtiff, at such reasonable appraisement and price, in part of satisfaction of his debt. If the goods are not sufficient, then the moiety, or one half of his freehold lands, which he had at the time of the judgment given (u), whether held in his own name, or by any other in trust for him, are also to be delivered to the plaintiff, to hold out of the rents and profits thereof the debt to be levied, or till the defendant's interest be expired ; as till the death of the defendant, if he be tenant for life or in tail. Copyhold lands are not liable to be taken in execution upon a judgment (.r). But in case of a debt to the king, it appears by 3Iagna Charta, c. 8, that it was allowed by the common law for him to take possession of the lands till the debt was paid. For he, being the grand superior and ultimate proprietor of all landed estates, might seize the lands into his own hands if any thing was owing from the vassal ; and could not be said to be defi-auded of his services when the ouster of the vassal proceeded from his owai command. This execution or seizing of lands by elegit is of so high a nature that after it the body of the defendant cannot be taken ; but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had (») 2 Inst. 39.5. (i) 1 Roll. Abr. 888. EXECUTION. — BY ELEGIT. 145 after the elegit ; for such elegit is in this case no more If no land tiieu in effect than a fieri facias (g). So tliat body and goods ^f'; ^"- "^'"^y may be taken in execution, or land and goods, but not -j^^A ^^^^ ^^^^^ body and land too, upon any judgment between subject may be taken, and subject, in the course of the common law. But but not body where a party was taken into custody, and also more ^"^^ '^'^ *°°" goods than sufficient to cover his demand, the court ordered him to be liberated. The sheriff, having pro- perty once in his hands, returning it to the defendant, becomes responsible (z). The election cannot be complete unless the plaintiff has some benefit from the land (a). The statute ordains, is Ed. i. c. is. " That where a debt is recovered or acknowledged in He that reco- " the king's court, or damages awarded, it shall be in the ^^^'^ a debt may " election of him that sueth to have sl fieri facias unto the '^^^ ^fi-f^- or *' sheriff to levy the debt upon the lands and chattels of " " the debtor, or that the sheriff shall deliver to him all the " chattels of the debtor (saving his oxen and beasts of his " his plough), and the one-half of the land, until the debt " be levied upon a reasonable extent ; and if he be put " out of the land, he shall recover it again by writ oi novel " seisin, and after that by writ o{ re-disseisin, if need be." By force of this writ, the sheriff may take in execu- Sherift' may tion, and deliver unto the party plaintiff^ the one half of take in execution all the lands, tenements and rents of the debtor, at a nify'Jau"" reasonable extent, and all his goods and chattels, {except lands. his oxen and beasts of his plough) until the debt be levied upon a reasonable price or extent (5). By this writ two things are to be done : " 1st. The goods and chattels of the defendant are T^o things to " delivered to the plaintiff. ^"^ obsei-ved. " 2d. The moiety of the lands and tenements." And this must be done by inquest taken by the sheriff; Must be done for the valuation of the goods and lands ought to be first ^y inquest. found by the inquisition of a jury, and the goods and chattels are delivered by a reasonable price, as the lands are by a reasonable extent ; but terms for years, which are Terms for years, chattels real, and an interest out of lands and tenements, ^"."^ interest out may be delivered as chattel by reasonable price, or as pro- deiiveJed'S'"' fit out of lands by reasonable extent : and hence, if a term chattel by rea- for years be extended and valued at a certain value in sonable price. (j/) Hob. 58. («) 1 Str. 226. (s) R. in aid, &c. v, Kinnear, 3 (&) 3 Co. 12. a. J>r. .536. 140 Some of the books say, a chattel or term for years may be sold. The elegit as to goods not a /•>• Sheriff and jury may go to the house, &c. and value. Extent and valuation must be by 12 men. Bailiff of a liberty may ex- ecute this writ. Sheriff is to im- panel a jury to inquire of the goods, and also lands. EXECUTION. — BY ELEGIT. gross, and delivered, and the debt is more than levied out of the profits of other lands, and of the term, yet he shall not account for the profits of the term, nor deliver up the same, because he had it at a stated price by the elegit, and the lands and tenements were only for the remainder of the debt, and therefore the profit of them will only go towards satisfying such remainder ; and for these last profits only the plaintiff shall be answerable (c). There- fore, some of the books say that a chattel, or a term for years, may be sold, which is true in one sense, viz. that they may be sold to the plaintiff for the price settled by the jury ; and if the defendant tenders the money to the sheriff before delivery, or to the court before the actual delivery by the sheriff, such goods are saved ; and if afterwards delivered, he shall be entitled to his midita querela {d). But if there is no tender made, the property of the goods is altered by the delivery of the sheriff, and the plaintiff may dispose of them under the judgment. The elegit as to goods is not a ji. fa., for a ji. fa. is executed by sale, but the elegit by appraisement of the jury, and delivery to the party (e). And the sheriff and jury may go to the house or ground to be extended, or where the goods are, and there appraise and value the same (/). They may go into the same house or ground for that purpose if the doors or gates he open, but may not break open the gates or doors (g). The extent and valuation of the lands, and the apprais- ing of the goods, must be by an inquest, by the oath of twelve honest and lawful men, and not by the sheriff himself (A) : and a bailiff of a liberty may execute this writ within the equity of the statute ; that is, such a bai- liff as has the execution and return of writs (i), and he may deliver the moieties. Upon an elegit the sheriff is to impanel a jury, who are to make inquiry of all the goods and chattels of the debtor, and to appraise the same, and also to inquire as to his lands and tenements ; and, upon such inquisition, the sheriff is to deliver all the goods and chattels, (except oxen and beasts of the plough), and a moiety of the lands, to the party, and return his writ, in order to record his (t) Cro. El. 584. Hob. 58. (d) Moor, 873. pi. (e) 1 Sid. 104. Keb. 105. (/) 5 Co. 91. 121G. 1 Lev. 02. (g) Dalt. 134. (/i) 4 Co. 74. Rep. 65. (i) Cro. Car. 319. 2 Bulstr. 97. 4 EXECUTION. — BY ELEGIT. 147 inquisition in that court out of which the elegit issued ; for it cannot be done by the sheriff without an inquest, Cannot be done because the words of the statute are by reasonable price ^''"°"t mquest. and extent, which must be found such by the oaths of twelve men (k). No notice is given of executing an elegit. Although the creditor takes out an elegit, yet if it appears to the sheriff that there are goods and chattels sufficient of the debtor to satisfy the debt, he ought not to extend the lands (Z). When the jury have found the seisin and value of the land, the sheriff, and not the jury, is to set out and deliver a moiety thereof to the plaintiflE" by metes and hounds (m). But the jury need not divide it(n). The sheriff is not bound to deliver a moiety of each particular tenement and farm, but only certain tenements making in value a moiety of the whole (o). It is agreed that the moiety extended must be set out by metes and hounds (p). The inquisition ought to find the lands with certainty, and ought to show the place and county where the inqui- sition is taken, and where the lands lie (q), describing the lands with convenient certainty (r). If no lands are returned, the sheriff need not return an inquisition (s). The sheriff, on the inquisition, shall deliver the moiety described with certainty {t), described by metes and bounds distinctly (m). He ought to deliver a moiety only, for if he delivers more it would be void for the whole (y). And if the defendant be joint tenant, or tenant in common, it ought to be specially mentioned in the return {x). If there are divers conusors, a moiety of the lands of all (?/). If the defendant has aliened after judgment, a moiety of the land in the hands of the purchaser, as well as of the defendant (c). If goods suffi- cient, ought not to extend lands. When the jury have found the seisin, a moiety to be ddiveied. Not bound to deliver a moiety of a particular tenement and farm. What inquisi- tion ought to find. Deliver moiety with certainty. Moiety only to be delivered. Joint tenant. If divers conusors. If land aliened after the judg- ment, (fc) 2 Inst. 396. Co. Lit, 389. Dyer, 100. .5 Co. 74. (0 3 Inst. 395. (m) lb. (w) Cro. Car. 319. (o) Salk. 563. 1 Sid. 91. Cro. Car. 319. (p) Den. V. E. of Abingdon, Dougl.473. Dalt. 135. S.r. (v) Dyer, 208. b. (r) Moor, 8. Com, Dig. Exec. (C. 14). (s) Str. 874. (0 1 Vent. 259. (7t) 1 Brownl. 38. Hut. 16. (v) 1 Sid. 91. 239. (i) Hut. 16. Brownl. 38. {v) 2 Inst. 396. (z) lb. tit. L 2 11 a 11 lands lie in several vills. To deliver one lialfofall lioiist's, lands, Sale or extent of u lease. I r extended. Actual posses- sion cannot be delivered. What estates are extendible. c. 3. s. 10. Lands liable freed from in- ciinibrjnces of ceitiii que titat. EXECUTION. BY ELEGIT. If the lands lie in several vills, a moiety of the land hi all, and not the whole in one vill(a). The sheriff is to deliver one half (by metes and bounds) of all houses, lands, meadows and pastures, rents, rever- sions and hereditaments, wherein the defendant had any sole estate in fee, or for life, into whose hands the same do afterwards come ; but not of a right only to land, an annuity, copyhold lands, &c. (b). On inquisition of a lease, which is but a 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 (c). If it be extended, the plaintiff is accountable for all the profits he receives out of the term upon such extent ; and if he receives the debt out of such term before it expires, the defendant shall be restored to the term itself (cZ) ; but otherwise he shall keep the term, and not account for the profits of it. Actual possession cannot be delivered on an elegit, for the sheriff ought only to deliver seizure, to enable the jilaintiff to maintain an ejectment, and the tenant may plead thereto, otherwise the tenant would be turned out miheard, and be remediless (e). What Estates may be extended. A term for years (/). Lands which defendant has by extent, upon a statute-merchant, &c. (5. (/ ) 2 Inst. 39G. 49. (g) 1 Roll. 887. 113. Mod. 36. .12. 3 ] (/.) Bro. Eleg. 13. ftlod. 32. 700. ((') 5 Co. 105. (k) Gilb. Exec. 40. Ab. (/) Cro. El. 742. (m) 4 Co. 65, b. EXECUTION, — KY ELEGIT. " shall be sued had been seised of such lands, &c. of such " estate as they be seised of in trust for him at the time of " the execution sued, which lands, &c. shall be accordingly " held freed from all incumbrances of such persons seised " or possessed in trust." Where a term was created in trust for the debtor, until default made in the payment of an annuity, to secure which the term was created, held that it was not a term held in trust for the debtor within the statute (n). 119 What cannot be extended. But upon an elegit the sheriff cannot extend a copy- hold (o) ; because the freehold is in the lord. Nor a term for years of a copyhold made by the license of the lord (p). Nor lands of which the defendant is disseised, whilst they are in possession of the disseisor (q). Nor, since the statute 29 Car. 2, lands which the trustee has aliened be- fore execution, for they are not bound by the judgment (r). Nor the land of a villein upon an elegit against the lord, for it is the land of the villein till the lord seizes it (s). Nor a tenement which cannot be granted over, as the oflice of filazer, for it is an office of trust (t). So a bare rent-seek cannot be extended (m) ; nor does it lie of the glebe land of a parson or vicar, no more than of a church- yard, for these are each solum Deo consecratum (x). An advowson in gross cannot be extended on an eZe^i^, because a moiety cannot be set out by the sheriff, nor can it be valued at any certain sum towards payment of the rent ( ?/). Entailed lands in the hands of the heir are not extendi- ble, neither by statute nor elegit {z). A. had judgment against^. S. in debt, 3 Jac; and B. had judgment in debt against J. S. 4 Jac. ; A.\Q Jac. had an elegit, and the sheriff delivered a moiety of the lands, but clid not return his writ ; and thereupon B. en- deavoured to have an elegit upon his judgment, and to turn A. out of possession; but per Coke — If B. should turn J. S. out of possession, A. may have a new elegit, because his judgment is prior to the other (a). (t) Dy. 7. 6. (u) Cro. El. 66, (a) Jenk. 207. 3 B & P. 327, {y) Gilb. Exec. 39. (:) Cro. Jac. 8.5. (a) Bicte V. Foster, Roll. Hep. 77. pi. 18. 3 (n) Doe V. Greenhlll, 4 B. & A. 684. ((>) 1 Roll. 888. 1, 1. (/)) lb. 1. 3. (./) lb. !. 7. (r) Com. 227. (») lb. 1. 20. Wliat cannot be extended. Entailed lands in the hands of the heir. Priority of judgment. 150 An elegit exe- futed afti-r a claim by ex- tent, the judg- ment a better title. If a fi-fa. and elegit. If the land be first extended on a statute, and after elegit obtained before acknowledg- ment of the statute. How to deliver, where theie are two manors. So of two acres. EXECUTION. BY ELEGIT. An elegit executed, find a claim by extent on a statute acknowledged in the sameterai, but before the judgment was given. The reporter says, he heard that it was ad- judged tliatthe plaintiff had the better title, being in pos- session under a judgment (b). Ifafi.fa. and elegit be delivered at same time with an extent, at a common person's suit, the Ji. fa. and elegit sliall take place, because the goods shall be attendant to satisfy, in the first place, the judgment of the superior court (c). If the land be first extended upon a statute, and after- wards an elegit upon a judgment, obtained before the ac- knowledging of the statute, comes also to the sheriff, the moiety of the land extended shall be delivered to the plaintiff upon the judgment (d). Elegit issued against him who had two manors, the sheriff may deliver the one manor to the plaintiff, in the name of the moiety of all, and is not bound to deliver tlie moiety of every manor (e). So of two acres ; and this seems to be where they are of equal value. If error brought, and judgment reversed, the goods in specie to be restored, and not the value. On tire second elegit, the sheriff can only deliver a moiety of the moiety left. If Judgment be Reversed. If a writ of error be brought, and the judgment reversed, the goods in specie shall be restored, and not the value ; but upon a fieri facias, the value, and not the goods in specie: and the reason of the difference is, that on ihe fieri facias the sheriff is to sell to any buyer, but in the elegit he is only to deliver it to the plaintiff; therefore, when the writ of error has reversed the judgment, in the one case the defendant is restored to the money, in the other to the goods themselves : for he is to be restored to what he has lost by the writ as it was awarded, which, in the case o^?i fieri facias, was the money, but in the elegit, the goods themselves, delivered over to the plaintiff (/). 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 the moiety of that (t) Gerrard t'. Norris, Latch, 53. (c) Brook, 97. \d) I Brownl. 38. (e) Bro. Eleg. pi. 11. (f) Roll. Abr. 778. 2 I>ev. t»2. pi. 115. IMoor, 573. pi. 788. Cro. Jac, 21G, 217. Godb. 27. 5 Co. 1)0. Yelv. 17y. EXECUTION. IN REAL OR MIXED ACTIONS. 151 moietv which he had at the time of the writ awarded {g). Yet if both judgments are of the same term, each may take a moiety of the whole. The sheriff cannot dehver a lease upon an elegit at Cannot deliver another value than what the jury had found it at ; and the ^i,g7yaiueula"n sale made by him is as good as if made in market overt {h). ^hm is found. After Inquisition taken. After the inquisition is taken by the sheriff it shall be After inquisi- returned and filed (i)» And after it is filed, it shall not tion taken it is be avoided upon surmise that more is extended than a ^^ ^^ moiety (k) ; or that it was extended at a small value. And though the extent was at an under value, the plaintiff shall account only for the value at which the extent is {I). But before the inquisition filed, the court may examine g^^^ ^^^^^.^ .^^ it, and if they find fraud, partiality, &c., may stop the filing, quisition filed, and award a new elegit {m). court may ex- amine it, and stop fil ms:. Sheriff's Charge to the Jury. " Your charge is to inquire what goods and chattels, Charge to the " (except the oxen and beasts of the plough,) and also j^iy. *< what lands and tenements C. Z). hath or had, or is or was " seised of in the bailiwick of the sheriff of , on " , in the year of His Majesty's reign, " or any time since ; and also to inquire and say what is ** one moiety of all the said lands and tenements, that the *' same may, at a reasonable price and extent to be made, *' be delivered to A. B. to hold as his own proper goods and " chattels : and also to hlod the said moiety of the said ** lands and tenements to the said A. B. and his assigns, as " his free tenements, according to the form of the statute," &c. Execution, in real or mixed Actions. TF the plaintiff recovers in an action, real or mixed, if plaintiff re- wherein the seisin or possession of land is awarded or mix'da^tT^' to him, the writ of execution shall be an habere facias he is to have seisinam, or writ of seisin of a freehold ; or an habere execution facias possessionem, or writ of possession of a chattel ^^if^fac-wi^^' mterest (W). seisinam of a freehold, and habere facias possessionem of a chattel interest. (g) Cro. El. 482. Dalt. 532. (/) 2 Ch. Ca. 183. (h) Brownl. 38, 39. (»") 2 Inst. 396. (i) Dyer, 100. (n) Finch, 470. {k) 2'lnst. 396. l4 152 WIkti the liulgineiit was cxtendotl to tlie recovery of a term in eject- ment, gave birth to the Itab.J'ac. })uss. May take posse coniilatiis. SheriHT on hab. fttr. sets, ought to execute the writ, although a stranger be seised of the land. AVherc a com- mon recovery is had of several houses, the she- riff' may deliver possession in one in the name of all. But it is otherwise in ejectment. EXECUTION. — IN REAL OR MIXED ACTIONS. When the judgment in ejectment was extended to a recovery of the term itself (the judgment originally being only for damages), it of consequence gave birth to the hub. fa. poss. in ejectment. In real actions, where the freehold was recovered, the demandant had execution by the writ of hab. fa. seis. ; in ejectment, therefore, it was but just that a remedy similar should be permitted to the plaintiff, who, as he now had judgment to recover possession of the land, might put the sentence of the law in execution by virtue of the hab. fa. poss. (o). These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered : if he be denied entrance by the tenant, he may break open the door, and take with him the j^osse comitatus if he meet with resistance {p). Also he may remove all persons in the house, and ought so to do {q). But if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ (r) ; the end of the writ being to give the party full and actual possession ; consequently the sheriff must have all power necessary for this end : besides, in this case, the law does not, after the judgment, look upon the house as belonging to the tenant^ but to him who has recovered {s). The sheriff, upon the hab. fa. seis., may and ought to execute the writ, although that indeed a stranger be seised of the land, and that neither of the parties to the writ were ever seised thereof (^). If a common recovery be had of divers messuages, the sheriff, upon the writ of execution, may make execution in one of them in the name of all, without going to every one in particular ; but if a man is to be put in execution of divers messuages upon a writ of execution, and the houses are in the possession of several men, he ought to go to every house particularly, and to deliver seisin thereof; for deliveiy of seisin in one in the name of all, when they are in several men's possession, is not sufficient ; because the possession of one tenant is not the posses- sion of the other, but each hath his several possession. (o) Glib. Ej. 148. (p) Dalt. Sh. 256, 350. Exec. 247. 5 Co. 91. iq) 1 Lev. 145. ()•) Br. Redis. 5. Perk. 42. Fitz. (s) 5 Co. 91. (0 riovvd. 12, 13. EXECUTION. — IN REAL OR MIXED ACTIONS. But it seems that if all the messuages had been in pos- session of one tenant, it had been sufficient to give pos- session of one in the name of all (m). But the surest and best way is for the sheriff to remove all the tenants entirely out oi each house, and when the possession is quitted to deliver it up to the plaintiff. If a man, upon an ejectment for forty acres of land, recovers thirty, and not the residue, upon the habere fac. poss. the sheriff may deliver him three or more of the acres in the name of the whole, without dividing of it by metes and bounds, though the plaintiff has not reco- vered all the acres whereof he has brought his action, and of which he has supposed the defendant tenant (x). If an hah. fac. poss. go to the sheriff to put a man in possession of twenty acres of land, the sheriff ought to give him twenty acres in quantity according to the cus- tom of the country where this is, and not according to the statute {y). If a man recover rent or common, whereupon a writ of possession issues out, and the sheriff comes upon the land, and delivers seisin of the rent or common by word only, this is well done, and the recoveror is in actual possession byit(^). If there is a recovery of a house, sheriff may put the party in possession by delivering to him the ring of the door of the house, or may open the door, and bid him enter and take possession (a). If the sheriff thrusts out all persons he can find in the house, and gives the plaintiff, as he thinks, quiet posses- sion, and after the sheriff is gone there appears some per- sons to be lurking in the house, this is no good execution, and therefore the plaintiff shall have a new hah. fac. poss. because he never had execution (b). But, if not return- able, why not re-execute the writ ? Where the recovery is of land, and there was more demanded than recovered, as suppose the demand had been for 500 acres, and a verdict and judgment only for 100 acres, it is not sufficient to give possession of one acre in the name of the whole that are recovered, but he 153 Surest way. Land may be delivered in execution with- out setting forth tiie metes and bounds. If writ be for 20 acres, so much by es(i- mation of the country must be delivered. Upon recovery of rent or com- mon, the sheriff may deliver possession by word only. (u) 1 Roll. Ab. 88G. Roll. R. 421. (x) Trin. 15 Jac. B. R. adjudged. 10 V. 539. (y) Floyd v. Bethel, Roll. Rep. 420. Bridg. 56. (s) lb. Br. Seis. pi. 36. 2 Ass. 24, («) Park, R. 43. (6) 1 Leon. 145, If sheriff thrust out all he can find, and after he is gone some persons lurking in the house left, may re- execute. Where the re- covery is of land, and of more than demanded by 500 acres, it is sufficient to give possession 154 of 3 acres in the name of the whole. If defyiidant dies before execution. 1 f tested before lessor dies, sufficient. If judgment for five-eighths, and sheriff gives possession of the whole. When posses- sion complete. If recovery of a rent, how to put party in possession. Sheriff not bound to know or seek the land. If sheriff gives possession, and he is ejected after. When an at- tachment. If a recovery in three towns, how sheriff (o give possession. EXECUTION. IN REAL OR MIXED ACTIONS. must set forth all the acres in particular, so that the reco- verors shall have the benefit of the judgment by cer- tainty, and the several profits, without interruption or disturbance (c). If the defendant dies before the execution, it may be done against his heir; for, in ejectment, the ejector by intendment is a disseisor {d). If tested before lessor or plaintiff's death, though not sued out till after it, it is regular (e). If, on a judgment in ejectment for five-eighths of a cot- tage, the sheriff gives possession of the whole, the court will make a rule on sheriff and the lessor of plaintiff to restore possession of three-eighths to the tenant {f). Until the bailiffs are withdrawn, and possession com- pletely given, the execution is not complete {g). If the recovery be of rent, the sheriff may put the party in seisin thereof, by the corn or grass growing on the land out of which the rent is issuing, or by the twig or bough of a tree growing upon the same land, or by distress of cattle levant and couchant upon the same land, or by a clod of the same land : and this is a good seisin of the rent, notwithstanding that the day of payment of the rent be not then come. The sheriff is not bound to know or seek the land demanded ; and, therefore, except the demandant show it to him, he may make his return accordingly (Ji). If the sheriff gives possession to the party, and the other ejects him presently, the sheriff may restore him to the possession notwithstanding his former execution, because he ought to leave him in a peaceable and quiet possession (i). So if, in a short time after, defendant turn plaintiff out of possession, it is a disturbance, and an attachment will go {k). If a man recovers land in three towns, and hath a writ of execution awarded to the sheriff, the sheriff may deli- ver him possession of the land in one town in the name (c) INIolineux v. Fulgam, Palm. 289. (d) 1 Roll. 887. 1. 10. (e) 4 Burr. 1970. (J) Roe I. Dawson, 3 Wils. 49. (i;) 1 Salk. 321. 1 Lev. 145. GMod. 115. (Ji) Dalt. 255. (i) Molineux v. Fulgam, Palm. 289. (k) 6 Mod. 27. Sly. 277. sheriff's fees. 155 of the land, and it is a good execution for all the lands recovered in all the three several towns (Z). In ejectment the old rule was, that there ought to be The sheriff is a sufficient certainty specified in the writ, that the sheriff 1°,^ p^J^^j^e", may know how to deliver possession. But, since the case and plaintiff 'to in Saville 28, that doctrine is exploded, for the plaintiff tal^e possession is to show the sheriff, and take possession at his peril of ^^ '"^ P^" ' onlt/ ivhat he has title to. If he takes more,, the court will, in a summary way, set it right (m). The sheriff delivers possession at the showing of the plaintiff (^O- It is said, if the demandant shall show to the sheriff if shown a a stranger's land, by force whereof the sheriff enters, &c., "''"^"S^^ ' ^^''''• yet he is no trespasser (o). If the sheriff duly execute the writ, and the plaintiff or when need not demandant have his demand, there, though the sheriff '^^*"'" returns not the writ, it is not material (p) ; that is, if he be not called on by rule of court. If the officer be disturbed in the execution of the writ, If disturbed in on an affidavit, the court will grant an attachment against f^f ^^jJ^^hJl^g^t the party, whether he be the defendant or a stranger ; ^^ill be granted. because the writ is the process of the court, and any disturbance given to the execution of it is a contempt to the authority of the court from whence it issues, and as such will be punished by the court (q). For poundage on this writ, see title Sheriff's Fees, infra. A' Sheriff's Fees. T common law, no fees whatever were allowed to sheriffs (r). Nor can he claim by any usage beyond the fees given by the statute 'upon warrants executed by 23 H. 6. s. 9. him(s). But this, instead of being advantageous to the subject, proved only oppressive, and opened the door to extortion : therefore the legislature found it neces- sary to interfere, and regulate the demands of sheriffs, by appointing certain fixed sums to be taken in cases of execution. (0 Dalt. 256. Per. Cur. C. B. (p) Dalt. 179. 256. 31 El. (''^^- in custody, by virtue of an authority from a court which hath jurisdiction over the matter, that the suffering such a person to go at large is an escape, for he cannot judge of the validity of the process or other proceeding of such court, and therefore cannot take advantage of any errors in them : hence the law allows him, in an action of false The law allows imprisonment, to plead such authority, which will excuse tif^'umirrihat him though it he erroneous ; but if the court hath no juris- au^ho'dty!^ diction of the matter, then all is void, and, consequently. But if the court the officer not punishable for suffering a person taken upon '"^^ "° jurisdic- such void authority to escape {q). ^'""' ^'^ '^ ''°''^- An attachment for non-payment of costs is in the nature of mesne process, and if the sheriff have the party in custody at the return of the writ, he is not liable for an escape (r). (m) Woodgate v, Knatchbull, 2 (p) Staunf. PI. C. c. 26, 27. T. R. 148, (g) Moor. 274. Dyer, 175. (n) Stevens v. Rothwell, 3 Br & Poph. 203. 2 Str. 509. 820. 1184 B. 143. Salk. 331. 2 L. Raym. 1530. (o) Buckle V. Bewes, 4 B. & Cr. (r) Lewis r, Morland, 2 B. & A. 154. 56. M 2 1G4 If a ca. sa. issues after a year and a day, t!ie shcrift", though no sci.fa Tlie sheriff may not take advan- tage of errone- ous process. Cannot be cliarged with an escape, before he liad defend- ant in actual custody. Sheriff not liable unless party be Itgally arrested. If in actual custody, and another writ comes, he must detain: or it is an escape. If no actual anest, and takes an undei taking, not liable to a detainer. Bailiff of a liberty bringing a prisoner taken in execution out of his liberty. Undertaking, and no bail put ESCAPE. Upon this distinction it hatli been adjud<2;e(l that if a ca. sa. issue alter a year and a day, without suing out a sci. fa., this error will not excuse the sheriff in an escape (s). issued, is liable if defendant escapes. But though a sheriff may not take advantage of an erroneous process, yet he shall of a void process, on which it is no escape to let a prisoner go (^t). The sheriff cannot be charged with an escape before he had the party in actual custody by a legal authority ; and therefore if an officer, having a w'arrant to arrest a man, see him shut up in a house, and challenge him as his pri- soner, but never actually have him in his custody, and the party get free, here the officer cannot be charged for an escape (w). In no case shall the sheriff be liable except the person who has escaped has been in actual custody ; that is, unless legally arrested hy his own officers, handed over to him in the gaol by the former sheriff, or regularly delivered in custody (y). But if ^. is arrested, and in the actual custody of the sheriff, and afterwards another writ is delivered to him at the suit of J. S., upon the delivery of the writ, A., by construction of law, is immediately in the sheriff's custody, without an actual arrest ; and if he escapes, the plaintifi' may declare that he was arrested by virtue of the second writ, which is the operation it has by law, and not ac- cording to the fact (iv). But where the sheriff, not having actually arrested defendant, accepted an undertaking of his attorney, this Avas held to be no escape {x). Where a bailiff of a liberty, having return of writs and execution on them, brings a prisoner taken in execution out of his liberty, to lodge him in the county gaol, it is an escape, and shall subject the bailiff (y). So if a sheriff's officer takes an undertaking without plaintiff's assent, and no bail above put in. And the court will not relieve him by peraiitting him to put in and jus- tify bail afterwards (2). Vide title I3ail, p. 82. (s) Cro. Car. 28. Salk. 273. But semb cont. Wooden v. Moxon, C Taunt 490. (0 Salt. 700, (u) Bro. Escape, 22. (i) 2 Barnes, 259. 3 Co. 71. (li) 5 Co. 89. (i ) Hodgson V. Akerman, L. Mans- field's Sum. Ass. 1776. (v) Boothman v. L. Surrey, 2 T. R. 3. 3 Co. 41. (:) Fuller v. Prcst, 7 T. R. 109. ESCAPE. 1G5 For the greater security of creditors, and tlie better to enable them to prove the actual custody of" the prisoner, the 8 & 9 W. 3, enacts, c. 27. s. 9. " That if any one, desiring to charge any one with an If any one dc- " action or execution, shall desire to be informed by the ^'"-'^ '° charge *' marshal or warden, or their respective deputies, or by ||^i^'j|^^s°Q^l' ^" " any other keeper of any other prisoner, whether such informed of the " person be a prisoner in his custody or not, the marshal, prisoner, mar- " &c. shall give a true note in writing thereof to the person sl'^l. &c- to g've " so requesting the same, or to his lawful attorney, upon *™*:."°^^'" . " demand at his office for that purpose, or in default thereof a^fauit to forfeit *' shall forfeit 50/. ; and if such marshal, &c. shall give a 50/. " note in writing that such person is an actual prisoner " in his or their custody, every such note shall be taken as " a sufficient evidence that such person was at that time " a prisoner in actual custody." Every person in prison by process of lavi^ is to be kept Every person to in salva et arcta custod'id, in order to compel them the more '"^ \^^} '" ^^'"^ ,., .111 1 1 ^ • ^ • 1 • and close cus- speetiily to pay then- debts, and make satisiaction to then- tody. creditors («). When a person is acknowledged to be in actuod custody, if tl»ere be aa delivering a writ to the sheriff against such person is an '^^^"°|^'cu^' arrest in law, and will subject the sheriff or other officer tody, and after in case of an escape (Z»). an escape. If the plaintiff" by word, license the sheriff to deliver P'aint'^^'f }?- .1 • ^ '■•' .,, ,. p cense to deliver, the prisoner, no action will lie tor an escape, no action lies. 27 II. 8. c. 24. The sheriff shall be liable for an escape of any com- Liable if com- mitted to him on an escape warrant. So on process of """ed on escape the Admiralty (c), or on a capias utlagatum{d). iTAnnls.V.^c.G. There are two kinds of escapes, the one voluntary and Two kinds of the other negligent. escapes. Voluntary is when an officer arrests another for a debt. Voluntary, and lets him go by consent ; in which case the sheriff is '^^^^' answerable to the plaintiff for damages, for a voluntary escape cannot be justified. Therefore, where one was in- trusted with the keys of the prison, and he lets himself out, this is a voluntary escape (e). If a gaoler makes a prisoner in execution turnkey, and Turnkey. he goes out on an errand, and returns, it is a voluntary escape (/). (a) Plow. 3G. 3 Co. 44. 2 Inst, (d) 5 Mod. 200. 2 Str. 901. 381. 1 RoU.Abr. 106. (e) Wilkinson v. Salter, Cas. T. (6) Jackson v. Humphreys, Salk. Hard. 311. 274. (0 Sav. 11. 15. M 3 (/) lb. 310. IGO Bailiff may re- take, though he let the prisoner go- Voluntary return before action. Where defend- ant is kept in sheriff's custody after return of writ. Plaintiff in an action for an escape must prove his debt. An administra- trix may main- tain the action. If taken in exe- cution, and goes with a follower. If seen at large. Wardens and turnkey to the Fleet. ESCAPE. A bailiff who has arrested a prisoner on mesne process may retake him before the return of the writ, though he voluntarily permit the prisoner to escape immediately after the arrest (g). A voluntary return of a prisoner after an escape, before action brought, is equal to a retaking on a fresh pursuit, but it must be pleaded (A). If a sheriff, having arrested defendant on mesne process, keep him in his custody after the return of the writ, and then carry him to prison, he is not liable for an escape if the jury find that the plaintiff has not been delayed or prejudiced in his suit (i). In an action against the sheriff for the escape of a prisoner on mesne process, the plaintiff was nonsuited, be- cause he could not prove any debt against the prisoner who escaped (k). An administratrix may maintain an action in her own name against the marshal or sheriff for the escape of a prisoner who is in execution of a judgment obtained bg her as administratrix (Z). If the party escapes out of one of the compters in London, the action shall be brought against both sheriffs (m). If a sheriff's officer, having taken a prisoner in exe- cution, permit him to go about with a follower of his before he takes him to prison, it is an escape (n). If the defendant be taken in execution, and seen at large for any the shortest time even before the return of the writ, it is an escape (o). But the party out on a day- rule, being seen out at half-past eleven at night, although an abuse of the rule, held yet no evidence of an escape if he returned within the rules before twelve (p). But where the turnkey lets the prisoner out, it was held that he not being the warden's deputy, it was a negligent escape, and not a voluntary. But had he been the warden's deputy, it had been otherwise. (g) Atkinson t;. Matteson, 2 T. R. (m) Reading v. Edwin, Carth. 172. (h) Bonafous v. Walker, 2 T. R. 126. ((•) 5 T. R. 37. (/c) Alexander v. IMacauley, 4 T. R. 611. (0 2 T. R. 126. 14;- (n) Benton v. Sutton, 1 B. & P. 24. (o) 2 Bl. R. 1048. (p) Ruihvcn I'. Brown, 2 Car, & P.N. P. 535. ESCAPE. 107 Negligent escape is when one is arrested, and afterwards escapes against the will of him that arrested him or had him in custody, and is not pursued by afresh suit, and taken again before the party pursuing hath lost sight of him (q). There is a difference between an escape on mesne process and execution : if a sheriff arrests the person on mesne pro- cess, and he is rescued by J. S., he may return the rescue, and such return is good, and no action of escape lies against him after such return (r). And an attachment for non-payment of costs, being in the nature oi mesne process, it is sufficient if the sheriff have the party in custody at the return of the writ, and he is not then liable to an action for an escape (s) ; and where liable, it is only to the extent of what the plaintiff could have recovered in the action if he had proceeded to judgment and execution {t). But after judgment on a ca. sa., the defendant is ar- rested, the sheriff cannot return a rescue, for in such case the sheriff is obliged to raise the posse comitatus, if need- ful (m). If a man be taken in execution upon a capias ad satis- faciendum, and is committed to the gaol, and the sheriff suffereth him to make an escape, the sheriff is chargeable for the whole debt (x). But in an action for escape, if the plaintiff aver that the prisoner was indebted to him for goods sold, the averaient must be strictly proved (y). In Trin. 1774, a declaration was delivered to the turn- key of the Fleet against defendant, who was a prisoner. On 1st October the defendant voluntarily permitted to escape, and go at large. That plaintiff, knowing of such escape on 1st of October, did proceed, and in Hilary term obtained final judgment. That after final judgment, the plaintiff commenced his action against the warden. De- fendant, having so escaped on 1st of October, returned to Negligent escape. Difference be- tween an escape on mesne pro- cess and execu- tion. If after judg- ment on aca.sa., stieriff cannot return a rescue, but must raise posse. If taken in execution, and escapes, debt lies. Action on the case for an es- cape upon mesne process, not guilty pleaded, it turns out on a voluntary escape the pri- soner returns to the Fleet the same day, and (q) Cromp. Just. 36. (r) 1 Roll. Ab. 807. 1 Jon. 207. 1 lloll. R. 388. 3 Lev. 46. (s) Lewis V. Morland, 2 B. & A. 56. (f) R. r. Sh. of London, 2 B. & A, 11)2. Stra. 515. (u) 1 Roll. 807. Cro. Car. 240. 255. 8 Co. 42. Cro. El. 868. Bull. N. P. 59, 60, (i)3Co.5. Dalt. 484. Bona- fous V. Walker, 2 T. R. 126. S. P. Bl, Rep. 1048, and Robertson i'. Taylor, 2 Ch. 454. (v) Parker v. Fenn, 2 Esp. 477, n. Sed vide 2 Lev. 85. 8 T. R. 127. Cro. El. 877. 1 Lutw. 108-10. M 4 1G8 the plaintiff proceeds to final judgment, yet the action lies against the war- den, though not brought till after final judgment obtained. Prisoner on voluntary es- cape is instantly at large, and gaoler cannot retake. Plaintiff may retake, but at his option. Not now a prisoner at plaintiff's suit. Nothing purges a voluntary escape. Sheiiff suffered a voluntary escape, the pii- soner discharged from the credi- tor, and action transferred to the sheriff'. c. 26. Voluntary and permissive es- capes taken away with re- gard to the plaintiff by this act. Does not take away plaintiff's right against slieriff. ESCAPE. the Fleet prison on same day, and has ever since con- tinued therein in defendant's custody. Verdict for plam- tiff, subject to the opinion of the court. Per Cur, — Whenever a gaoler permits a voluntary escape, from that moment he commits a tort, and the plaintiff has a right of action to recover such damages as a jury shall please to give him ; the prisoner, when volun- tarily suffered by the gaoler to escape, is instantly at large ; the gaoler cannot afterwards retake and detain him for the same matter ; the plaintiff may retake him by an escape warrant, but has his option to proceed as he pleases, either against the defendant or the warden ; defendant is not now a prisoner at the plaintiff's suit, although he be locked up every night, and though the plaintiff might law- fully proceed to judgment against him, yet he could not charge him in execution. Skin. 582, is in point. There is not the least doubt but that judgment ought to be for the plaintiff, and if we should do otherwise, we should permit every gaoler in England to let his prisoners go at large, as much as if they had never been arrested ; if the escape be voluntary in the gaoler, nothing afterwards will purge it. Judgment for the plaintiff (z). It was formerly held, that when the sheriff suffered a prisoner in execution to make a voluntary escape, the pri- soner was in such case absolutely discharged from the creditor, and that the right of action was entirely trans- ferred against the sheriff, who by means of such escape became debitor ex delicto {a). But the 8 &, 9 W. 3, hath taken away all distinction between voluntary and pennissive escapes, with regard to the plaintiff ^ s remedy , enacting, " That if any prisoner who is or shall be committed in " execution to any or either of the said respective prisons, " shall escape from thence by any ways or means howso- " ever, the creditor or creditors at whose suit such prisoner " was charged in execution at the time of his escape shall " or may retake such prisoner by any new capias or ca. sa., or " sue forth any other kind of execution on the judgment, as if " the body of the prisoner had never been taken in execution." But this act does not take away the plaintiff's remedy by action for the escape against the sheriff, for he has no occasion to proceed against the defendant unless he thinks (:)Salk 27l.Ravenscroftr. Eyles 2 Wils. 294. (a) Leon 73. ESCAPE. 1G9 proper, but may proceed against the sherifF for his damages, and leave the sheriff to justify his conduct. And if the plaintiff elects to proceed against the sheriff for the, escape, the court will not, by compelling him to bring in the body, enable the plaintiff to proceed in the original action for costs (6). " If any marshal or warden, or their respective deputy if the marshal, " or deputies, or any keeper of any other prison within this &c. shall take a " kingdom, shall take any sum of money, reward or gratuity »'ew"d from a " whatsoever, or security for the same, to procure, assist, ^n g°" ape" he'^'^ " connive at or permit any such escape, and shall be thereof forfeits 500 i. *' lawfully convicted, the said marshal, &c. as aforesaid, " shall for every such offence forfeit 500^. and his said " office, and be for ever after incapable of executing any 8 & 9 W. 3. " such office." c. 26. s. 4. All prisoners, either upon contempt or mesne process, or in execution, who shall be committed to the custody of the marshal of the King's Bench prison, or warden of the Fleet, shall be detained within the said prisons, or the rules of the same, until they be discharged by due course of law ; and if the said marshal or warden, or any other keeper of any prison, shall suffer any prisoner to go at large out of ths rides {except by habeas corpus or rule of court, tvhich rule shall not be granted but by motion made or petition read in court,) every such going or being out of the said rules shall be adjudged and deemed and is hereby declared to be an escape. Escape from the rules is not a voluntary escape, w^ithout the marshal's knowledge (c). Every person obtaining judgment in any escape against the marshal, &c., shall have not only the remedies already by law allowed, but the judges of the courts where such judgments shall be obtained (upon oath made by the per- sons obtaining such judgment that the same was obtained without fraud or covin, and that the debt of the prisoner making such escape was a true and real debt, and unsa- tisfied,) shall, upon motion, sequester the profits of the office of marshal, &c., or so much thereof as they shall think fit, and apply the same towards satisfaction of the debt due from the prisoner who escaped, together with all costs and damages recovered. And if they sue forth any writ of error, they shall put in bail. By 5 Geo. 2, In case any gaoler to whom a bankrupt is committed shall uillfidly suffer such person to escape, or to go tvithout All prisoners, either on con- tempt or mesne process, or in execution, shall be detained within the prison or rules, unless by hab. cor p. or rule of court. 8 & 9 W. 3. c. 26. s. 1. (b) Berwick v. Walton, 2 B & A. 623. (c) 2 T. R. 12G. Every person obtaining judg- ment against the marshal or warden to have all remedies against them by law allowed ; but judges to sequester the profits of the office. If they bring error, bail. s. 2, 3. c. 30. If a bankrupt is committed and escape, to forfeit 500/. 170 s. 18. I f a sheriff or officer does, by colour of anhab. Corp., suffer a prisoner to go at large, it is an escape. If the defendant ]>e in prison, and [xnhab.corp. is brought, and he is rescued going to court. If he be ar- rested going to gaol, and rescued. If he be once within the walls of the prison, though on mesne process, yet a rescue from thence is no excuse. Must take care that he does not let the prisoner more at liberty than he ought. If sheriff suffers party to go at large without bail-bond. ESCAPE. the uoalls or doors of the prison, such gaoler shall, for such offence, being convicted by indictment or information, for- feit 500 /. for the use of the creditors. The writ of habeas corpus is an ancient writ, and what the subject is by law entitled to; yet if a sheriff or other officer, who hath the custody of a prisoner does, by colour thereof, suffer the prisoner to go at large, it is an escape (d). The sheriff was ordered to bring up the body in custody in Newgate on mesne process, by habeas corpus, and the defendant was rescued going to court ; the sheriff was held to be liable ; for the sheriff having had notice when the body was to be brought up, he might have provided against a rescue by assembling the posse comitatus (e). If the sheriff arrest the party by virtue of mesne process, and he is rescued as he carries him to gaol, it will be a good excuse for the sheriff (/). And, on the other hand, if the party be once v^dthin the walls of the prison, though the custody be on mesne process only, yet a rescue from thence by any but common ene- mies, will be no excuse : if a company of rebels break the prison and let out the prisoners, yet the sheriff is answer- able, because the law supposes the sheriff and his^o^se are sufficient to resist such a force. But in the case of mesne process, if the sheriff meets the party again by acci- dent (having process) and is told it is the defendant, he is bound to arrest him ; and then, because it is not supposed that he has always the posse along with him, he is excused against a rescue \g). As the sheriff must be careful that he does not give the prisoner more liberty than by law he ought to do, when he acts in obedience to a lawful authority, so he must take care that he does not let him go at large by colour of a void authority (A). If a sheriff, after arrest, suffers the prisoner to go at large without bail-lDond, and afterwards returns cepi corpus, and before the expiration of a rule to bring in the body puts in bail, he is not liable either in an action for an escape or for a false return (i). (rO Cro. Car. 14." Roll, Abr. 808. (g) 1 Roll. Abr. 811. 4 Co. 84. Hob. 202. 3 Co. 44. Crompton v. \\ ard, 1 Str. 435. (e) Crompton v. Ward, 1 Str. 429. ('')-P^''- f^- "*^f ' , , „ r, . ^ ■> i (i) ranente t'. Plumbtrce, 2 B. & (/) Cro. Jac. 419. 1 Sir. 435. p. 3.5. Evans r.Swete,2Bing.271. ESCAPE WARRANT. <* If any marshal or warden for the time being, or their " respective deputy or deputies, or other keeper or keepers " of any other prison or prisons, shall, after one day's " notice in writing given for that purpose, refuse to show " any prisoner committed in execution to the creditor at " whose suit such prisoner was committed or charged, or *' to his attorney, every such refusal shall be adjudged to << be an escape in law." escape. 8 & 9 W. 3. The gaoler shall upon request of any creditor having proved his debt, and producing a certificate thereof under the hands of the commissioners, (which the commissioners are to give gratis,) produce such person so committed ; and in case of refusal he shall forfeit 100 I. for the use of the creditors, to be recovered by action of debt in the name of the creditor requesting such sight. If the party arrested had escaped of his own wrong, without the consent of the officer, upon fresh suit the officer may take him again and again, so often as he escapeth, although he were out of view, or that he shall fly into another town or county, and bring him before the justice upon whose warrant he was first arrested {k). But it is said generally in some books, that an officer who hath negligently suffered a prisoner to escape, may retake him wherever he finds him, without mentioning any fresh pursuit ; and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason he should take any manner of advantage from it (Z). Escape Warrant. By 1 Ann. it is enacted, " That if any person already committed, rendered or " charged, or who shall hereafter be committed, or rendered " to, or charged in the custody of the marshal of the Queeiis " Bench for the time being, or to or in the prison of the " Fleet, either in executioji or upon mesne process, or upon any " contempt in not performing such order or decree, by any " of Her Majesty's courts at Westminster, and such person " shall, at any time after such commitment, render, charge, " or being in execution, and before he, she or they shall *' have made payment or satisfaction to the respective " plaintiff or plaintiffs, creditor or creditors, or shall have " cleared him, her or themselves of such contempts, as he, " she or they were or shall be charged with at the time (/() Dalt, c. 113. (/) 2 Haw, 131, 132. 171 Upon one day's notice in writ- ing, the marshal, &c. shall show the prisoner to the creditor at whose suit he is, or shall be adjudged an c. 27. s. 8. Gaoler to pro- duce bankrupt to creditor. 5 Geo. 2. c. 30, s. 19. But if he is arrested and escapes of his own wrong, the officer may take him. Yet it is said in some books that he may retake, though the es- cape were neg- ligent. 0.6. Persons in the Queen's Bench or Fleet prison, committed, or rendered, or charged in the custody of the marshal or Fleet prison, on mesne piocess or exe- cution, &c. 172 Making escape, &c. It shall be law- ful, upon oath thereof made, for tiie j udge to grant a warrant for re -taking such prisoner. Directed to all sheriffs, mayors, &c. to seize and re-take him. Who shall con- vey and commit to the county gaol, where taken, there to remain, &c. Exception. ESCAPE WARRANT. of such their commitment, &c. as aforesaid, making any escape from the custody of the marshal of the Queen's Bench for the time being, or from the prison of the said Qiieens Bench, or from the prison of the Fleet, or either of them, or shall go at large, at any time after the three- and-tvventieth day of Jan. 1702, it shall and may be lawful, upon oath thereof in writing, to be made by one or more creditable person, before any one of the judges of that court where such action was entered, or judgment and execution were obtained, or where the party was so committed or charged as aforesaid, to and for such judge before whom such oath shall be made as abovesaid, and such judge is hereby authorized and required from time to time to grant unto any person whatsoever who shall demand the same, one or more warrant or warrants under his hand and seal, therein reciting the action or actions, execution or executions, contempt or contempts, with which such person or persons so escaping or going at large stood charged, or were committed at the suit of any person or persons on whose behalf such warrant or warrants shall be demanded at the time of such escape or going at large, (which such warrant or warrants shall be in force in all places w^hatsoever within the kingdom of England, dominion of Wales, and town of Benmck- upon-Txjoecd,) directed to all sheriffs, mayors, bailiffs, con- stables, hcadboroughs and tithing-men, therein and thereby commanding them, and every of them, in their respective counties, cities, towns and precincts, to seize and retake such person or persons so escaped or going at large, and such person or persons so retaken upon such warrant forthwith to convey and commit to the common gaol of such county where such person or persons so escaped or going at large shall be retaken, there to remain without bail or mainprize, or being thence upon any account whatsoever delivered or removed, until he, she or they shall have made full payment or satisfaction to the re- spective plaintiff or plaintiffs, creditor or creditors, in such action, &c. named, or until the judgment or judg- ments on which such execution or executions was or or were sued out against such person or persons shall be reversed or discharged by due course of law, or until judgment in such action or actions be given for such person or persons so committed as aforesaid, or until the said contempt or contempts for which such person or persons were or shall be committed be cleared and dis- charged ; except such person or persons be charged with treason orjelonij, or anij other crime, matter or cause, for or on the behalf of the queen's majesty, her heirs and ESCAPE WARRANT. " successors ; and if he or she for any such cause on behalf *' the queen, her heirs and successors, be removed to any " other gaol or prison, he or she shall be in the custody of " such gaol charged with all the causes with which he or " she is or shall be charged in the gaol from whence he or " she shall be removed : And every mayor or other officer, " as aforesiad, after delivery of such prisoner so retaken, " together with such warrant to the sheriff, shall take " a note in writing from such sheriff, testifying the receipt " of such prisoner, which said sheriff is hereby required to " receive such prisoner and give such note. And every " such sheriff as aforesaid, after the execution of such " warrant, shall forthwith make a return thereof to the " court where the action shall be depending, or judgment, " order or decree had or obtained ; which shall be entered " and filed upon record." After a voluntary escape, gaoler cannot retake the prisoner ; after an involuntary escape, he may, without warrant, and on a Sunday (m). Escape lies though taken upon an escape warrant (n). If a prisoner in execution in K. B. be turned over to the Fleet, and escape, a judge of the King's Bench or Common Pleas may grant an escape warrant (o). And he cannot come out on a day-rule (p.) He may be taken on a Sunday (q). But cannot be brought before a judge by a day-rule, as another prisoner may, to show cause of action against another (r). But if the party be not taken by lawful authority upon an escape warrant, if this appears upon the return of the warrant, he shall not be committed to the county gaol, but to the former prison, as if brought not by a constable or other officer, but by persons not known (s). If a man escape, and returns again, and then commits a second escape, he cannot be taken up for the first escape, it being purged by his return (t). cannot be taken So if he be discharged by agreement, after commit- ment upon an escape warrant, he shall not be afterwards retaken (m). 173 Every mayor, &c. after deli- very of prisoner, shall take a re- ceipt from sheriff. Sheriff to make return of war- rant, &c. After voluntary escape cannot re -take. If a prisoner in execution in K. B. be turned over to the Fleet, a judgeof K.B. or C. P. may grant warrant. Alay be taken on a Sunday, If not taken by lawful autho- rity, shall not be committed. If he escapes and returns, and commits a second escape, for the first. If discharged by agreement. (m) Barnes, 373. 5 T. B. 28. (n) Com. Dig. title Escape, (o) 8 Mod. 240. (p) 6 Mod. 63. (9)6 Mod. 95, 2 Salk. C2G. Lord Ray. 1028. Str. 387. (r) 6 Mod. 63. (s) Mod. Cas, 154. (f) Stra. 423. (u) Mod. Cas, 254. 171 If prisoner is entitled to liis discharge. Cannot be re- taken for fees. If prisoner es- capes by negli- gence, sheriff may retake. Or may have an action. And this before action against sheriff. But if volun- tarily. What no escape. ESCAPE. If the defendant is entitled to his discharge at the time of his escape, and would be entitled to it as soon as taken on the escape warrant, the court will supersede the warrant (:r). If a prisoner escapes, and plaintiff sends an order for his discharge, the gaoler cannot take him for his fees (y). If the prisoner escape by negligence of the sheriff, the sheriff may retake him, and he shall not have an audita querela {z.) Or he may have an action on the case against the pri- soner for his escape, whereby he becomes subject to the action of the party (a). And this before an action or recoveiy against the sheriff, as well as after {h). But if he escapes voluntarily, he cannot be retaken, by the sheriff nor plaintiff, except by a new ca. sa, - But if he be let out of prison with plaintiff's consent, the judgment is discharged, and he cannot be retaken at all (c.) What shall not he an Escape. It will not be an escape 'if the party was never in custody ; as if the old sheriff does not deliver him over upon such execution {d). So if the officer never touched the party, it is no arrest, and consequently no escape (e). So if he goes out of prison by reason of a sudden fire in the gaol (/) ; or the gaol be broke by the king's ene- mies {g). If rescued on mesne process before he was in gaol (h). Though the rescous be not returned ; or if it be {i). So if the defendant be retaken on fresh suit before action commenced for the escape {k). Though the fresh suit was not begun till a day and night after the escape (J). Nor though he did not retake him till he fled into another county (m). Though he was out of sight. (e) Russeni). Lucas, iRy. 6c M.2G. (/■) 1 Roll. 808, b. 7. ig) Bro. Escape, 10. 1 Roll, 808. 1. 5. (/i) 1 Roll. 807. 1. 35. 2 Cro, 419. 2 Lev. 144. 1 Roll. 389. (0 2 Lev. 144. 1 Roll. 440. Qi) 1 Roll. 808, 1. 52. 3 Cro. 52. Godb. 404. (/) 1 Roll. 809. 1. 10. (»0 3 Co, 52. Bro, Escape. 51. (x) Webb I', Thomson, Str, 401. {y) Str. 909. (s) 3 Co. 32, b. 1 Sid. 330. Mod. 660. (a) Cro. El, 53. 237. 1 Lev. 237. Lut, 64. Mod. 660. (b) Mod. 660. Godb. 125, Cro. El, 53. (c) Barnes, 373, Show, 174. 1 Saund. 35. n. 1. {d) 3 Co. 72. 2 Lev. 54. ESCAPE. 175 So a voluntary return of a prisoner after an escape, ^'oluntary return. before action brought, is equivalent to a retaking on a fresh pursuit, but it must be pleaded (n). The sheriff shall not be charged for an escape if the Assent^of the prisoner goes out of prison with the assent of his credi- tor (o), though the assent be only by parol {p). So it will not be an escape if the sheriff upon an hab. Corp. brings his prisoner to Westminster, though he goes out of the direct way (q). Where a new sheriff is appointed, his predecessor ought to deliver over by indenture all the prisoners in his custody, charged with their respective executions : for the prisoners, until they are turned over to the new sheriff, remain in the custody of the old sheriff; and if he omits to deliver them over, every omission will be deemed an escape, wherewith he will be chargeable (r). J. S. being in execution in the Fleet, was suffered to make a voluntary escape, after which he returned again to the Fleet ; and the defendant being made warden in the place of the former warden, J. S. was turned over with the other prisoners, and afterwards suffered to escape; and the question was, whether the voluntary escape suffered by the former warden did not so entirely discharge the execution, that the prisoner could not be retaken, nor judged in execution by law, even though he should yield himself to it ? And it was held, that it did not, and that the succeeding warden should be chargeable with the escape suffered in his time (s). So in the case of one Grant, who, being in the custody of the former marshal, was suffered by him voluntarily to escape, after which he returned voluntarily to prison, and being found in prison, the succeeding marshal detained him ; and in an action of false imprisonment brought by him, the court held that he might, and that if he had suffered him to go at large, it would be an escape {t). plaintiff. Though he go out of the direct way on hab. Corp. Of the preceding or succeeding sherifT. Pri- soners omitted to be turned over to new sheriff, will be deemed an escape. Gaoler suffers a voluntary es- cape in A. who comes back to the prison, and escapes again in the time of a succeeding gaoler, he is chargeable. One voluntarily suffered to es- cape, volun- tarily returned, and being de- tained, brought an action, held lawful. (n) Bonafous v. Walker, 2 T. R. 126. (o) 2 Inst. 382. (p) Dy. 275, a. (q) 3 Co. 44. Mo. 299. (»•) Hob. 206. 2 Roll. Abr. 157. Cro. El. 365. Bulst. 70. 2 Leon. 54. 4 Co. 72. (s) I-enthal v. Lenthal, 2 Lev. 109. James v. Pierce, 3 Keb. 487. S. C. Vent. 269. (f) Mod. 183. Grant i. Southers, Stra. 423. 17G ESCAPE. By common law, sheriff to keep persons in execution in custody. c. 11. Servants, &c. found in arrear to be committed to gaol till they have satislied the master; and sheriff not to suffer them to go at large. Superior. €.12. Warden not to suffer any prisoner to go out of prison unless by writ. By the equitable construction of these statutes, debt lies against sheriffs for escapes. c. 12. When case lies, and when debt lies for escapes. Remedy for an Escape. By the common law, the sheriff and every gaoler ought to keep persons in execution, in salva custodia (a). And whether upon mesne process, or in execution, the plaintiff had no remedy but by action on the case (?/). The 13 Ed. 1, enacts, " That servants, bailiffs, and all receivers which are ac- countable, being found in arrear by auditors assigned by their masters, they shall be committed to gaol till they have satisfied the master ; and let the sheriff or gaoler take heed that they do not suffer him to go at large by reple- giare, or otherwise, without the assent of his master. And if he do, he shall answer to the master the damages, and the master shall have the recovery thereof by a writ of debt ; and if the gaoler have not wherewithal, his superior shall answer."_ By the 1 R. 2. " No warden of the Fleet shall suffer any prisoner, there being judgment, to go out of prison by bail nor by baston, without making gree to the parties of that whereof they were judged, unless it be by writ or command of the king, upon pain to lose his office ; and if such warden be attainted that he has suffered such prisoner to go at large, the plain- tiffs shall have their recovery against the warden by •writ of debt:' By the equitable construction of the 13 Ed. 1, the action of debt is given against sheriffs ; and by the 1 R. 2, against the warden of the Fleet for escapes m execution, and the statute of Rich. 2. extends to all gaolers and keepers of prisons, though they be infants or femes covert {z). Trespass on the case only lies in cases of escapes on* mesne process ; but where the party is in execution, debt lies under the two statutes before mentioned, and the juiy in the latter case cannot give a less sum in damages than the creditor would have recovered against the pri- soner, viz. the sum indorsed on the writ, and sheriff's poundage {a). But in \\\q former case the plaintiff recovers only the damages he has sustained, and if no damage be sustained, the plaintiff has no cause of action {h). (i) 3 Co. 44. (z) 2 Inst. 382. {y) 2 Inst. 382. 1 Roll. Abr.99. (a) Bonafous v. Walker, 2 T. TX. 1. 10. 1.5. 2 Cro. 289. Saiind. 34. 126. 2 Lev. 159. (h) Planck v. Anderson, 5T.R.37. ESCAPE. 177 Debt lies, by 1 li. 2, as well for a negligent as for ^^^^\^^^ ^^ a voluntary escape (c). ^gU (q^ negligent as for a voluntary escape. The plaintiff has his election to bring debt or case And plaintiff p r . • / 7v ni'iy bring ael)t ior an escape ni execution (a). or case. If a prisoner, in custody on a cap. utlag., is suffered if in custody on to escape, the plaintiff may either maintain an action qui ^ '^"P- "■^'■"S- tam against the sheriff, or debt in his own right (e). Husband and wife may join in the action, if one in Husband and execution at their suit or process out of a court of equity ^''^^ may join. be suffered to escape (/). An administratrix may maintain this action in her An adminis- own name, on a judgment obtained by her as adminis- ^'"a'"^- tratrix {g). Under a count for a voluntary escape, the plaintiff may y»^er a count ■ 1 P 7- ^ / 7 \ *^ for a voluntary give evidence oi a negligent escape {li). escape. Case lies for escape of an outlaw on mesne process, {hut Outlaw, not debt) (^). By 1 Ann. the sheriff shall be liable for an escape Escape warrant. of any committed to him on an escape warrant. ^ ' ' ^" * By 19 H. 7. the sheriff of every county shall have Sheriff of every the keeping of the common goal there, (except such as the gaorand he are held by inheritance or succession). Upon this sta- is liable to an- tute, it was resolved, that grants of custodies of ^aols swer for escapes; lately made by H. 8, or after granted to divers persons, ^'^ ^- ^- c- lo. were utterly void, and that inasmuch as the custody of them belonged to the office of sheriff, who, being imme- diate officer to the king's court, shall answer for escapes, and be subject to amerciament, if he has not the body in ^^^ ^f ,^": J „ 1 • , ■ ii ^ 1 J • swerable tor court upon process, &c., and it is reason that he put m his keeper. such keepers for whom he will answer (k). -^^ ^j^jj actions In civil actions of escape, the sheriff is answerable for foi escapes, his under-sheriff, if the prisoner be taken (Z). '^^^^^ ^^^]^ f"'' If there be two sheriffs of the same place, and an action if there be two of escape be brought against them hoth, if one dies the sheriffs and writ shall not abate im) ; but the death may be suggested escape brought , \ /7 J oo against both, on the roll. writ not to abate on the death of one. 8 & 9 W. 3. c. 11. s. 7. (c) Stonehouse v. Mullins, 2 Str. (/;) Bonafous v. Walker, 2 Tr. R. 373. 12G. {d) Cro. Jac. 283. 2 Bulstr. 321. (i) CookeD.Champneys,2Str.901. Cro. El 707. (fc) 4 Rep. 34. 1 Andrews, 345. (e) Cro. Jac. 301.533. 019. Cro. (/) Ualt. 484. cites 1 R. 2. c. 12, El. 877. and 7 H. 4. c. 4. Fitz. 93. Br. Officer, (J) Huggins U.Durham, 2 Str. 726. 24 and 33, and 2 Inst. 382. 1 Roll. ig) Bonafous v. Walker, 2 T. R. 94. 1. 30. Hard. 34. 120. (m) Cro. El. 02). N 17» Will not judge an escape by strict construc- tion. Surviving sheriff. c. 27. s. 11. IMarslial and warden are liable for all escapes. When bailiff of liberty liable. Sheriff, how connected with acts of the bailiff. A bill must be filed against marshal, &c. ESCAPE. The judges will not judge of" an escape by any strict construction (71) ; and the plaintiff must strictly prove the averments of the original cause of action in his decla- ration against the sheriff for not arresting (o). It lies against the surviving sheriff, when one of them dies (7;). By 8 & 9 W. 3, The offices of the marshal of the King's Bench prison, and warden of the Fleet, shall be executed by the several persons to whom the inheritance belongs respectively in person, or their deputies ; and for all forfeitures, escapes, &c. in their offices, by their deputies, the persons in whom the inheritance is shall be answerable. If a writ comes to the sheriff, and he makes out his mandate to the bailiff of a liberty, who takes the party, and after suffers him to escape, an action lies against the bailiff of the franchise, and not the sheriff (y). In an action for an escape on mesne process, the she- riff's return is not conclusive, and the plaintiff cannot insist on a copy of the return indorsed on the copy of the writ being read as part of the document (r). An indorsement of a bailiff's name by a clerk in the sheriffs office, is sufhcient proof of the sheriff's authority to appoint such bailiff, and also j)rimd facie evidence that the officer acted under that authority (s). Production of the writ, with the bailiff's name indorsed, is sufficient to connect him with the bailiff, without producing the waiTant, it being shown to be the custom of the office so to indorse the officer's name who executes it (^) : and whatever would be evidence against the party is also evidence in the action against the sheriff (m). But if the officer be called to show the authority, he is a vntness for all pur- poses, although, in fact, the real party in the cause (x). If proceedings are against the marshal or warden for an escape, a bill must be filed against them in their respective courts ; but if a sheriff is sued, process must be directed to the coroner : if against the late sheriff, it is to be directed to the present sheriff. (0 Cowp. 66. Tealby v. Gas- coigne. 2 Stark. 202. Bowden v. ^Vaithman, 5 B. ftloore, 183. (n) "Williams v. Bridges, 2 Star. 42. Peake, N. P. 05. 2 Esp. 09.5. (1) Morgan v. Bridges, 2 Stark. 2.5. 315, (n) Boyton's case, 3 Rep. 43. (0) Parker v. Fenn, 2 Esp. 477. n. (p) Cro. El. 625. (q) I! oil. Ab. 98. Noy. 27. (r) Adey v. Bridges, 2 Star. 189. (s) Francis v. Neave, 3 B. & P. ESCAPE. 179 In debt for an escape the indorsement of 7ion est in- Evidence of ve7itus on tlie ca. sa. is sufficient evidence of its having delivery of wi it. been dehvered to the sheriff; and a legal arrest must be proved (?/). The sheriff's return is prima facie evidence of the facts sheriff's return returned {z). evidence. Of Gaols in Fee. If he who has the custody of a gaol in fee substitutes another for Hfe, or at will, the action will be against him, for he has the actual possession of the office (a). So if an escape be out of the custody of mayor or Mayor, &c. bailiffs of a city, town, &c. which has a gaol, the action shall be against them, and not against the sheriff. So it shall be against the bailiff of a franchise, if the Bailiff of a escape be by him (6). franchise. So against both the sheriffs of London, if the escape sheriffs of Lon- be after an arrest upon a plaint in the compter of one of don on plaint. them ; or against the survivor, where one dies (c). So against the old sheriff, if he omits to deliver any old sheriff, prisoner by indenture to the new (d). But an action shall not be against the superior if the Superior and inferior be sufficient (e). But in all cases where the infe- inferior. rior is insufficient, debt lies against the superior for the escape (/). If he be insufficient at the time of the action brought, if ti,e inferior thoush he was sufficient at the time of the commitment be insufficient. or escape, for that is the time most regarded (g). The superior, against whom the action ought to be Who is supe- brought, is he who, by his estate in his office, or by his "°'^- authority without estate, has the power of putting in the inferior officer (h) ; as the Duke of iV. being marshal of England in fee, makes a deputy, he is the superior, and the deputy the inferior officer (i). If a man who has the custody of a gaol in fee grants it for three lives, he is the superior, and the grantee the inferior. There cannot be two superiors within the statute. (v) Cowp. 03. (e) 2 Inst. 382. (:) 11 East, 297. (f) 2 Jon. GO. 2 Lev. 158. 9 (a) 9 Co. 98. a. Co.'^98. a. (/)) 1 l^oU. 99. 1. 15. (g) 2 Jon. 61. 2 Lev. 120. (f) Cavih. 145. do. El. 625. (h) 2 Jon. 61. (//) 2 Lev. 34. (0 2 List. 382. 9 Co. 98. b. N 2 180 KSCAPK. The slieriffs of London are the inferior, the mayor and commonalty the superior {]€). The dean and chapter of Westminster are the superior, and the baihff the inferior (Z). So the lord of a franchise, who has a gaoler, is the superior, and shall answer for his gaoler (m). B ut debt does not lie against the superior upon a ^eweraZ dedaradmifor declaration for an escape ; but he ought to be specially charged for the insufficiency of the inferior {n). So if a man has the custody of a gaol in fee in rever- sion, after a grant thereof for life, rendering rent, which was not made by him, the reversioner is not superior ; for the superior is not such in respect of the rent, or the reversion, but in regard that the inferior officer derives his estate from him (o). So is tlie dean and chapter of Westminster. Not against su- perior on gener declaration for an escape. In reversion If the prison takes fire sheriff excused. 3 E. 6. 6G. 15. So if it be broke by the king's enemies. But if by rebels, &c. the king's subjects. Fresh pursuit, and retaken before action brought, excuses the sheriff. But not after. If fresh suit is made, and sheriff retakes before action. Sheriff's Defence. If the prison takes fire, by means whereof the prisoners escape, this shall excuse the sheriff, and he may plead it(p). So if the prison is broke by the king's enemies, this shall excuse the sheriff, for he can have no remedy over against them. But if the prison is broke by rebels and tx^aitors, the king's subjects, this shall not excuse him, for he may have his remedy over against those {q). If a prisoner in execution escapes without the assent of a sheriff, &c., and he make fresh pursuit, and retake him before any action brought against him, this shall excuse the sheriff (r). But if he retake him after the action commenced against him, this shall not excuse him ; nor can it be pleaded to an action that was well attached before (s). So if a prisoner escape, and several days after, but as soon as the sheriff has notice of it, he makes fresh suit, and retakes him before an action brought, this shall excuse him {t). (k) 2 Inst. 382. 9 Co. 98. (/) 2 Lev. 159. (m) Sav. 11.15. (h) 2 Lev. 160. (o) 2 Jon. 61. (p) Roll. Ab. 808. (?) 4 Co. 84. Roll. Ab. 808. (r) Cro. Jac. 657. Jon. 144, Roll. Ab. 803. 2 Str. 873. (s) Roll. Ab. 808, 809. Jon. 145. Cro. Car. 657. (() Roll. Ab. 809. ESCAPE. So the sheriff may plead that the prisoner escaped the sixteenth day of December, and that he made fresh suit, and retook him the seventeenth day of December, and retained him in execution ; for it is sufficient if he did all he could, though he lost sight of him in the night or otherwise (^^). " No retaking on fresh pursuit shall be given in evidence '* on the trial of an issue in an action of escape against the *' marshal or warden, or their respective deputy or deputies, ** or against any other keeper or keepers of any other pri- *< son or prisons, unless the same be specially pleaded ; " nor shall any special plea be taken, received or allowed, " unless oath be first made in writing by the marshal, &c. " against whom such action shall be brought, and filed in " the proper office of the respective courts, that the pri- " soner, for whose escape such action is brought, did, *' without his consent, privity or knowledge, make such *' escape ; and if such affidavit shall at any time afterwards *' appear to be false, the marshal, &c. shall be convicted " thereof by due course of law, and such marshal, &c. shall " forfeit the sum of 500 /." In case of voluntary escapes, the gaoler cannot retake the prisoner {x). But in the case of negligent escapes, the gaoler may retake the prisoner (?/). So it seems that an action against the sheriff for an escape on mesne process may be defeated by putting in bail in the original action, though after the expiration of the time allowed for putting it in, and even after the action for the escape is brought {z). But the court or- dered the allowance of bail who had j ustified after the commencement of an action for an escape to be set aside, that the action might proceed, and agreed, " that " bail not justified in due time, was as if no bail had " been put in." («) To the action on the case for the escape the defendant may plead not guilty {b). That he was rescued after an arrest on mesne pro- cess (c). To an action of debt, nil debet. 2. And to an action for a negligent escape, that he escaped against his will, 181 Plea. Plea ol' fresh pursuit and re- caption by statute. Affidavit to be annexed to the plea. 8 & 9 W. 3. c. 26. s. 6. Proceedings stayed, if Ijail in original action be put in. Pleas to actions for escapes. (u) Rol. Abr 563. (a) 2 Wils. 295. Id) 2 Str. 908. 809. Dalt. Sh. N 3 (s) 1 Esp. 87. 2 B. & P. 35. 246. (a) How V. Lacy, 1 Taunt. 119. (A) Com. Dig. 222. 2 Wils. 294. (c) Lut. 130. 3 Lev. 46. 182 ESCAPE. Sheriffmay have action against the escaper. In case of a vo- luntaiy escape, sheriff's cannot recover against the defendant in the original action. A sheriff's officer who pays debt and costs may recover it. Escape hy the party himself. Escape by a private person. and that he made fresh pursuit and retook him before action commenced (d). In an action for an escape on mesne process the return is not conclusive ; and if the copy of the writ contain also a copy of the return indorsed, the plaintiff cannot insist upon its being read as part of the document (e). Sheriff's Redress. If the party in custody, on execution or othenvise, escapes, the sheriff may have trespass on the case against him, for the sheriff is liable over to the plaintiff in the first action (/). But it seems that in the case of a voluntaiy escape, or where an officer permit a prisoner to go at large on his promise to repay the debt, and the prisoner escapes, the sheriff or other officer cannot recover, in an action for money paid, the sum which he has been compelled to pay to the plaintiff in the original action (g). A sheriff's officer who discharges a defendant on pay- ment of the sum sworn to and costs, and is afterwards obliged to pay the interest, which was insisted on, may recover it from the defendant as money paid to his use (h). In Criminal Matters. As all persons are bound to submit themselves to the judgment of the law, whoever in any case refuses to undergo that imprisonment which the law thinks fit to put upon him, and fi'ees himself from it by any artifice, before such time as he is delivered by due course of law, is guilty of a high contempt, punishable with fine and imprisonment (i). That wherever any person hath another lawfully in his custody, whether upon an arrest made by himself or ano- ther, he is guilty of an escape if he suffer him to go at large before he hath discharged himself of him, by deli- vermg him over to some other who by law ought to have the custody of him. And the law is generally the same in relation to escapes sufiered by private persons as by officers (k). (d) 2 T. R. 12G. (e) Adey r. Bridges, 2 Stark, N.P.C. 189. (/) Cro. El. 234. (g) 8 East, 171, (/() Cordron v. Messarine, Peake's N.P.C. 143. ((■) 2 Haw. 122. {k) lb. 138. ESCAPE. 1H3 To make it an escape, there must be an actual arrest ; Ksoape from an and therefore if an officer, having a warrant to arrest °*5'{,e'a p,^. a man, see him shut up in a house, and challenge him vious arrest. as his prisoner, but never actually have him in his cus- tody, and the party get free, the officer cannot be charged with an escape (Z). Such arrest also must be justifiable; for if it be either ,^fo,.{"2'f^,'^;i for a supposed crime, where no such was committed, and crime where ^ the party never indicted nor appealed, or for such a slight none commit- suspicion of an actual crime, and by such an irregular JfgJ;g^"lj£2 mittimus as will neither justify the arrest nor imprison- ^or appealed, or me?2t, the officer is not guilty of an escape by sutFering an irregular the prisoner to go at large (m). plilllr^^^pes. the officer is not guilty of an escape. And as the imprisonment must be justifiable, so it must And for a cri- also be for a criminal offence. "^'"^^ "ff^'^^^- Where a party convicted of a conspiracy, and com- mitted to the custody of the marshal, escaped after the expiration of his sentence, but before payment of the fine, held that the marshal might retake him at any time when- ever he could, and detain him until payment, and that even if the escape were voluntary. And if a prisoner be acquitted, and detained only for And detained his fees, it will not be criminal to suffer him to escape, °o/J-nJnaUo though the judgment were that he be discharged pay i??^ suffer escape. his fees, so that they be not paid, the first imprisonment continuing lawful as before ; for inasmuch as he is de- tained, not as a criminal, but only as a debtor, his escape cannot be more criminal than that of any other debtor ; yet if a person convicted of a crime be condemned to imprisonment for a certain time, and also till he pay his fees, and he escape after such a time is elapsed without paying them, perhaps such escape may be criminal, for that it was part of the punishment that the imprisonment be continued till the fees should be paid ; but it seems that this is to be intended where the fees are due to others, as well as to the gaoler, for otherwise the gaoler will be the only sufferer by the escape, and it will be harsh to punish him for suffering an injury to himself only, in the non-payment of a debt in his power to release (^O- (/) 2 Haw, 129. (m) lb. (u) Butt I'. Jones, 1 Gow. N. 90. 129, 130. N 4 Too much liberty. Losing sight of prisoner an escape. And if he kill him in the pursuit. Voluntary and negligent escapes. The gaoler on trial not pro- ducing the prisoner, a conviction. Felony to be tried before the escape. ESCAPE. To sufier a prisoner to have greater liberty than the law allows is an escape. If a gaoler or other officer shall license his prisoner to go abroad for a time, and to come again, this is an escape, though he return again (o). If the gaoler so closely pursues the prisoner who flies from him that he retakes him without losing sight of him, the law looks on the prisoner so far in his power all the time as not to adjudge such a flight to amount at all to an escape ; but if the gaoler once lose sight of the prisoner, and aftenvards retake him, he seems to be guilty, in strictness, of an escape. And if he kill him in the pursuit, he is in like manner guilty of an escape, though he never lost sight of him, and could not other- wise take him (p). There can be no doubt but that wherever an officer, who hath the custody of a prisoner charged with and guilty of a capital offence, doth knowingly give him his liberty, with an intent to save him either from his trial or execution, he is guilty of a voluntary escape, and thereby involved in the guilt of the crime of which the prisoner was guilty and stood charged with (q). And it seems to be the opinion of Sir M. Hale, that in some cases an officer may be judged guilty of such escape who had not such intent, but only means to give his prisoner that liberty which by the law he hath no colour of right to give him (r). If the prisoner be of record in a court, and the gaoler being called cannot give an account where he is, this is a conviction of an escape ; but it seems not a conviction of a voluntary escape, unless the gaoler confesseth it; and the gaoler may be fined in such a case, but not con- victed of felony without indictment or presentment (s). The keeper who voluntarily suft'ers the escape cannot be aiTaig-ned for such an escape as for felony until the principal be attainted, for that the felony of the prisoner shall not be tried between the king and the keeper, be- cause the prisoner is a stranger thereto ; yet he may be indicted and tried, for it is as a misprision before the attainder of the principal (t). (o) Dalt. c. 159. (p) 2 Haw. 130. (7) 2 lust. 592. (r) 2 Haw. 130. (s) 1 H. H. P. C. 599. 603. (0 2 Haw. 135. 2 Inst. 591,592. KSCAI'E. 105 Whoever de facto occupies the office of gaoler is liable Negligent to answer for such as escape ; and it is no way material ^^^^¥^' whether his title to the office be legal or not (u). A sheriff is as much liable to answer for an escape suffered by his bailiff* as if he had actually suffered it himself, and the court may charge either the sheriff" or bailiff" for such an escape ; and if a deputy-gaoler be not sufficient to answer a negligent escape, his principal must answer for him : but if the gaoler who suflTers an escape have an estate for life or years in the office, it is not agreed how far he in reversion is liable to be punished {x). 1. If a felon escapes before arrest, it is not pimishable Punishment of in him as felony ; but for the flight he forfeits his goods, ^JJ^^P^ ^^^"''^ when presented (y). 2. If a private person arrest a felon, and he escape Ofescapebya by force from him, the township shall be amerced; but private person. it seems it excuseth the party, because he cannot raise the power to assist him; but if a constable or other officer hath the custody of a prisoner, bringing him to the gaol, it seems that a simple escape by the rescue of the pri- soner himself doth not wholly excuse him, because he may take sufficient strength to his assistance {z). 3. Wherever a person is found guilty upon an indict- Of a negligent ment or presentment of a negligent escape of a cri- escape. minal actually in his custody, he is punishable by fine and imprisonment, according to the quality of the of- fence (a). And it seems to be the better opinion, that the sheriff" is as much liable to answer for a negligent escape suflfered by his bailiff" as if he had actually suff'ered it himself, and the court may charge either the sheriff" or bailiff* for such an escape ; and if a deputy-gaoler be not sufficient to answer a negligent escape, his principal must answer for him (b). If a prisoner for felony break the gaol, this seems to be a negligent escape in the gaoler, because there wanted either that due strength in the gaol that should have secured hun, or that due vigilance in the gaoler or his officers to have prevented it ; and therefore it is lawful in the gaoler to hamper them with irons to prevent their (u) 2 Hawk. P. C. 135. (s) I H. H. 601. (i) lb. 135, 136. (a) 2 Haw. 136. 139. 1 H.H. 600. 604. (I/) Hale's PI, 111. (6) 2 Haw. 135. iUG Vohintaiy es- cape, how far criminal. If act done is not felony. ESCAPE. Principal only lineable. Felony in <;aolcr, but not his principal. Escape must be voluntary in him who permitted it. escape ; for if gaolers might not be punished for this as a negligent escape, they would be careless either to secure their prisoners, or to take them that escape (c). 4. It seems to be generally agreed, that a voluntary escape, suffered by an officer, amounts to the same kind of crime, and is punishable in the same degree, as the offence of which the party was guilty, and for which he was in custody, whether it be treason, felony, or tres- pass (cZ). But yet a voluntary escape is no felony, if the act done were not felony at the time of the escape made, but the officer may be fined to the value of his goods (e). Also a voluntary escape suffered by one who wi'ong- fully takes upon him the keeping of a gaol, seems to be punishable in the same manner as if he was never so rightfully entitled to such custody ; for that the crime is in both cases of the same ill consequence to the public ; and there seems to be no reason that a wrongful officer should have more favour than a rightful, and that for no other reason but because he is a wrongful one (/). But it seemeth to be clear, that no one is punishable as for felony for the voluntary escape of a felon, but the person only who is actually guilty of it ; and therefore that the principal gaoler is only fineable for a voluntaiy escape suffered by his deputy ; for that no one shall suffer capitally for the crime of another (^). And therefore, although in all civil causes the sheriff is to be responsible, or the gaoler, at election, yet if the gaoler do voluntarily suffer a felon in his custody to escape, this, inasmuch as it reacheth to life, is felony only in the gaoler that was immediately trusted with the custody, and not in the sheriff (7«). For the escape must be voluntarily permitted in him that permitted it, which could not be in the high sheriff, though it were such in the gaoler, for he was not privy to it, and therefore could not do it feloniously; but it was a negligent escape in him in trusting such a person with the custody of his prisoners that would be false to his trust, and therefore the sheriff shall pay, but not cor- porally suffer, for the miscarriage of liis gaoler (i). (f) 1 II. H. 601. (d) 2 Haw. 134. (e) Dalton. Ij") 2 Haw. 134. (g) 2 Haw. 135. (h) 1 H. H. 597. (0 1 11.11,597, 598, 599. ESCAPE. But altliou|2;h the felony for which a man is committed be not within clergy, yet the person who voluntarily suffers him to escape shall have the benefit of clergy. By the 10 Geo. 2, " If any person shall assist any prisoner to attempt his escape from any gaol, though no escape be actually made, if such prisoner was then attainted or convicted of treason or felony (except petty larceny), or lawfully committed, or detained in any gaol, for treason or felony, (except petty larceny), expressed in the warrant of com- mitment, he shall be guilty of felony, and be transported for seven years ; and if such prisoner was then convicted of or detained in gaol for petty larceny, or any other crime not being treason or felony, expressed in the warrant of commitment, or was then in gaol for debt amounting to 100/ , he shall be guilty of a misdemeanour, and be liable to fine and imprisonment." " And if any person shall convey, or cause to be con- veyed any disguise, instrumejit or arms, to any prisoner in gaol, or to any other person there for his use, without consent of the keeper, such person, although no escape or attempt be actually made, shall be deemed to have delivered such disguise, instrument or arms, with an intent to assist such prisoner to escape, or attempt to escape ; and if such prisoner was then attainted or con- victed of treason or felony (except petty larceny), or lawfully detained in gaol for treason or felony (except petty larceny), expressed in the warrant of commitment, he shall be guilty of felony, and be transported for seven years ; but if the prisoner was then convicted or detained for petty larceny, or any other crime not being treason or felony, expressed in the warrant of commitment, or for debt amounting to 100/., he shall be guilty of a mis- demeanor, and liable to fine and iinprisonment." " And if any person shall assist any prisoner to attempt to escape from any constable, or other person, who shall have the lawful charge of him, in order to carry him to gaol, by virtue of a warrant of commitment of treason or felony (except petty larceny), or if any [)erson shall assist any felon to attempt his escape from on board any boat or vessel carrying felons for transportation, or from the contractor for the transportation of such felons, or his agents, he shall be guilty of felony, and be trans- ported for seven years. Offence to be prosecuted within a year." The 9 Geo. 1. subjectb persons guilty of assaults on 107 Clergy. c. 31. A person's as- sisting a pri- soner -to escape, deemed guilty of felony. Where deemed a misdemeanor. Persons con- veying any dis- guise, &c. to help an escape, without the knowledge of the keeper, of one attainted of treason orfelony, the offender deemed guilty of felony, and transported. But if detained for petty lar- ceny, or for debt amounting to 100/., guilty of a misdemeanor. To assist any person to escape from a constable being charged with treason or felony, or from any boat, &c. carrying felons for transporta- tion, the of- fender deemed guilty of felony. C. 31. s. 25. 188 13 Ed. I.e. 4. In criminal cases, town amerced. A marshal permitting an escape by bail, imprisoned. c. 10. A fine for neg- ligent escape of a person in- dicted for high treason, &:c. If gaoler not sufficient. What a replevin lies for. For what it does not lie. 12 11.8.3,4. 4 H. 7. 10. REPLEVIN. any peace officer, in the execution of his duty, in order to prevent the apprehension or detainer of a party hable to be apprehended or detained by law for any offence, to be imprisoned in the house of correction, and with or without hard labour, for any term not exceeding two years, and may be required to find sureties for keeping the peace. By the statute of Winton, " If murder or homicide be done in a walled town, &c. ** and the offender escapes, the town shall be amerced." (A) So London was (/). By 5 Ed. 3, " A marshal who permits the escape of indictees or " appellees in his custody, by bail or without bail, shall *' be imprisoned for half a year, and ransomed at the will " of the king." By the \9 H.l, " A fine for a negligent escape of any indicted for high " treason shall be one hundred marks at least ; if com- " mitted for suspicion of high treason, forty pound ; if " indicted for murder or petit treason, twenty pound ; " if for suspicion of these, or indicted for other felony, " ten pound ; if not indicted, five pound. And if the " gaoler be not sufficient, the sheriff shall answer for his '' neglect (?«)." REPLEVIN. Sheriff's Duty. REPLEVIN is a re-delivering to the ovraer, by the sheriff", of his cattle or goods distrained upon any cause, upon surety that he will pursue the action against him that distrained ; and if he pursue it not, or if it be adjudged against him, then he who took the distress shall have it again, and for that purpose may have a writ de retorno hahendo (n). It does not lie of hounds, hawks, monkies, apes, thrushes, popinjayes, 8ic., which are/erce natura, for the property is not properly known, and yet trespass lies thereof; and so of a mastiffXo) ; nor of conies (p), nor of charters ( q), for they are inheritances, and belong to the heir. (fe) 7 Co. 7. a. (o) Br. Prop. pi. 44. Br. Reple- (/) Cro. Car. 252. vin, 64. (m) Hawk. 113. (p) Godb. 124. pi. 144. («) Co. Liu. 145. b. ( 1 TTi. ,^T,o /x^-.. having autho- (m) Brandon v. Hubbard, 2 Br. & (o) Co. Litt. 14.5. h. ° B- 11. (p) Co. Litt. 14.>. 2 Inst. 340. (") 1 Ch. R. l!)(i. 10 Co. 102. 192 rity to grant replevins, shall for distress, if for rent, take bond in their own name from the plaintiff Conditioned for prosecuting the suit with effect, and for return of goods if awarded. And shall as- sign such bond without stamp, in presence of two witnesses. When may be assigned. When not assignable. Sheriff obliged to gi'ant reple- vins, and officer who takes the goods is not liable to tres- pass, unless, &c. Misbehaviour by sheriff, &C. subject to K. B. The end of dis- tress is to compel a satisfaction. Answered by taking suffi- cient pledges. REPLEVIN. " granting replevins shall, in every replevin of a distress for " rent, take, in their own names, from the plaintiif and two " sureties, a bond in double the value of the goods dis- ** trained, (such value to be ascertained by the oath of one " or more witnesses not interested, which oath the person " granting such replevin is to administer), and condition " for prosecuting the suit with effect and without delay, " and for returning the goods, in case a return shall be " awarded before any deliverance be made of the distress ; " and such sheriff or officer taking such bond shall, at the " request and cost of the avowant, or person making cog- " nizance, assign such bond to the avowant, &c. by in- " dorsing the same and attesting it under his hand and seal " in the presence of two witnesses, which may be done " without any stamp, provided the assignment be stamped " before any action brought thereon ; and if the bond be " forfeited, the avowant, &c. may bring an action there- " upon in his own name ; and the court may, by rule, give " such relief to the parties on such bond, as may be agree- " able to justice ; and such rule shall have the effect of a " defeazance." The bond may be assigned, if the plaintiff in replevin do not appear, at the county-court 7iext after the giving the bond ; and he may sue on the bond as assignee of the sheriff in the superior courts, though the replevin be not removed out of the county-court {q). If distress be not made /or rent the bond is not assign- able ; but the party may apply to the sheriff for the bond, and to be at liberty to sue in his name. The sheriff is obliged to grant replevins in all such cases as they are allowed of by law ; and the officer who takes the goods by virtue of a replevin, issuing for what cause soever, is not liable to an action of trespass, unless the party in whose possession the goods were claims property in them. And that in all cases of misbehaviour by the sheriff or other officers in relation to replevins, they are subject to the control of the king's superior courts, and punishable by attachment for such misbe- haviour (r). As the end of all distresses is to compel the party dis- trained upon to satisfy the debt or duty owing from him, this end is as well answered by such siifficient sureties as by retaining the veiy distress, which might frequently occasion great inconvenience to the owner, and that the law never wantonly inflicts. (v) Dias t; Freeman, .5 T. R. 195. (<) Carth. 381. REPLEVIN. 193 If the sheriff neglects to take a replevin-bond, the court Sheriff neglects will not grant an attachment against him, but leave the ^^ ^'^^^ ^ ^°°'^' party to his action against the sheriff (6). And he is justified in taking a person who appears to the world to be a responsible person, unless he has the means of knowing otherwise, or neglects to use them, when, if they prove eventually insufficient, he will be liable (t). If the sheriff take a replevin-bond with only one surety, and he is sued for taking insufficient pledges, he can only recover a moiety of the damages from such surety ; and semhle, such bond is not assignable, not being conform- able to the statute (u). Where actions were brought against the sureties, which failed, without notice to the sheriff, held that he was not liable to the costs ; but semhle, in some cases he may be liable {x). The sheriff, on receiving such security, is immediately to make his precept, directed to his officers, commanding them to replevy, and cause to be delivered the cattle, goods or chattels so taken into the possession of the party so distrained upon ; and if the distress be conveyed into any house, park, castle, or other place of strength, and the party who distrains refuses to deliver them to be replevied, the sheriff may take the j^osse comitatus, and on request and refusal may break open the same, and make deliverance. If the sheriff be shown a stranger's goods, and he takes them, trespass lies {y). He cannot break an inclosure and enter, where he may enter by the open gate {z). gate open. He may return, that no person came to show, &c., or a delivery ; but not that the defendant, non cepit, the cattle (a). If the plaintiff in replevin proceeds before the sheriff If the freehold in his county-court, if any thing touching the freehold tUm^^thT sheriff comes in question, the sheriff can proceed no further, can proceed no nor can any such proceeding be carried on in the hun- further. Sheriff, receiving security, is to make precept to his bailiff to deliver. If distress con- veyed into a place of strength, Sec. and refusal to deliver, he may take posse comi- tatus. 3 Ed. c. 17. If shown a stranger's goods. Co.nnot break inclosure if 20 II. 6. c. 28. May return that no person came to show, &.C. dred-court or court-baron (b). (s) Rex V. Lewis, 2 T. R. 617. («) Scott V. Waithman, 3 Star. 169. ()') Austen v, Howard, 7 Taunt. 327. O So where the king ... (x) Baker v. Garratt, 3 Bing. 56. (i/) 2 Roll. Abr. 5.52. Comb. 596. (z) 2 Roll. Abr. 552. (a) 1 L. Ray. 613. 1 Litt. 581. {b) Co. Litt. 145. H>4 In tliese cases removal must be by re. fa. lo., and how the sheriff is to act. c. 7. If the plaintiff be nonsuit be- fore issue joined, Court to award an inquiry. c. 7. s. 2. s. 3. Entry of the plaint in re- plevin. REPLEVIN. party, or the taking is in right of the crown, the sheriff is to surcease (c). Therefore, in these cases, the plaint must be removed into one of the courts above by re. fa. lo. ; if a court of record, by certiorari, &c. ; and it is said that the writ of recordari must be openly read, and allowed in the same court, to the end that notice may be given thereof to the plaintiff in replevin, that he may appear at the day of the return thereof, and declare against the taker of his cattle, &c., otherwise the taker will have a return thereof. By 1 7 Car. 2. if plaintiff shall be nonsuit before issue joined in replevin for rent, the defendant making a sug- gestion in nature of an avowry, or cognizance, for such rent, to ascertain the court the cause of distress, the court, upon his prayer, " Shall award a writ to the sheriff of the county where " the distress was taken, to inquire by the oaths of twelve " good and lawful men of his bailiwick, touching the sum " in arrear at the time of such distress taken, and the value " of the cattle and goods distrained ; and thereupon the " sheriff' shall inquire of the truth of the matters con- " tained in such writ, by the oaths of twelve good and law- " ful men of his county." And upon the oath of such inquisition, the defendant shall have judgment to recover such rent, &c. N. B. Fifteen days notice is to be given to the plaintiff of the sitting of such inquiry. And when the plaintiff, after removal, be- comes nonsuit, the bond is forfeited, and the avowant may elect to proceed by a writ de retorno habendo, or writ of inquiry, under 17 Car. 2 {d). s. 3. gives the like remedy to the avowant upon a judgment given for him upon demurrer. 'I At my county-court, held at, &c. the to wit. I day of in the year of the reign of our sovereign lord , by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, &c. before A. E , K. E., P. K. and J. S. suitors of the said court, (amongst other things) it is entered, , to wit, G- A. complains of H. H. of a plea of taking and unjustly detaining his goods and chattels ; and the pledges as well for prosecuting as for returning the same goods and chattels, if return thereof shall be adjudged, are H. G. of, &c. plumber, and E. H. of, &c. glazier. Cc") Brown, 33. (rf) Turner v. Turner, 2 Br. & B. 107. REPLEVIN. Know all men by these presents, that we G. A. of Bond in in the county of gent, and J. B. replevin. of the same place, gent, are held and firmly bound to G. M. esq., sheriff of the county aforesaid, in the sum of looZ of lawful money of Great Britain, to be paid by the said (jr. A. and J. B., or their certain attorney, executors, administrators or assigns, for which payment to be well and truly made we bind ourselves, and each of us binds himself, for the whole, and in gross, our heirs, executors and ad- ministrators, firmly by these presents. Sealed with our seals. Dated the day of The condition of this obligation is such, that if the above Condition. bounden G, A. do appear at my next county-court, to be holden for the county of at on the day of next, and do prosecute there with effect his suit, which he hath commenced against H. H. for the taking and unjustly detaining of two oxen, &c. [here set forth the goods distrained], the cattle, goods and chattels of him the said G. A., and to make return of the said cattle, goods and chattels, if return of the same shall be adjudged ; that then this present obligation shall be void and of none effect. 195 G. the M. esq., sheriff of the county aforesaid, to bailiff of the hundred of K. in the said Precept to deliver. to wit. J ine oaum or tne nunarea or a. m county, and to John Doe and Richard Roe, my bailiffs, and to every one of them, jointly and severally, greeting : Forasmuch as G. A. hath found me sufficient security, as well for prosecution of his action against //. H. for un- justly taking and detaining his cattle, goods and chattels, and which the said H. H. takes and unjustly detains as is alleged, as also for return thereof, if return thereof should be adjudged ; Therefore I command you, and every of you, jointly and severally, that upon the behalf of the said G. A., you replevy and deliver to the aforesaid G. A. his said cattle, goods and chattels, and that you immediately summon the said H. H. to appear at the next county-court to be holden at , in and for the said county, to answer the aforesaid G. A. in the plea aforesaid ; and in what manner you shall execute this precept certify to me at the said next county-court to be held at the time and place aforesaid, under the peril incumbent. Given under the seal of my office, this day of in the year of our Lord to wit. By virtue of a warrant from the sheriff of the Summon.s to county of to me directed, I summon you to appear t'le defendant at the next county-court to be holden at in and ^" leplevm. o2 194> Precept to de- liver in MiJille- If sheriff takes insutlicient pledges. Some e\'idence must be given bv the plaintiff of the insutfi- ciencv. REPLEVIN. f). Semble, a party gene/allv reputed responsible is sufficient ; but it is a question for the sheritf first, and afterwards for the juiy, to say if the replevin clerk has con- ducted himself with due caution ( /*). And it was held, on solemn argument, that the plaintift" cannot recover damages heyond the value of the distress taken (y). It is said some evidence must be given by the plaintiff of the insufficiency of the pledges or sureties ; but very slight proof is sufficient to throw the proof on the sherifF; for the sureties are known to him, and he is to take care that they are sufficient (h). (e) Richards r. Acton, 2 Bl. R. 1220. Prowse v. Pattison, Bull. N.P. GO. (f) Sutton V. Waite, 7 ISIoore, C. P. 27. See also Kindle i'. Blaydes, 5 Tauut. 22.3. C^) Yea r. Lethbridge, 4 T. R. 433. (/i) Sanders v. Darling, Bull, N P. 60. T. 10 Geo. 3; hut tid. supr. l'J3. n. (0- REPLEVIN. 1*'7 Proof that they were in debt, and upon apphcation for payment refused'to pay, is suthcient evidence of then- m- sufficiency (i). The remedy is by action, and not by motion in court (k) ; but the verdict in replevin being merely for a return of the goods, the sheriff's habihty cannot be extended beyond their value (l). Know all men by these presents, that I, G. M. Esq. Assignment of sheriff of the county of have, at the request of the replevm-bond. above-named H. H. the avowant in this cause, assigned over unto him the said H. H. this replevin bond, pursuant to the act of parliament in that case made and provided. In witness whereof, I have hereunto set my hand and seal of office, this day of 1 8 Sealed, 6:c. To be witnessed by two witnesses. ss. G. M. Esq. High sheriff of the said county, A precept on a to all and singular my bailiffs of the said county, greeting ; ■*"it of uhher- Forasmuch as JV. B. hath come before me, and found me "*""• sufficient security, as well to prosecute his complaint as to return his cattle, if return thereof shall be adjudged ; and therefore, by virtue of my office, I have often com- manded you, and every of you, that you, or some one of you, shall cause to be replevied and delivered to the afore- said JV. B. his, &c. which J. C. took and unjustly detains, (as it is said.) and you, upon my several precepts of replevin to you directed as aforesaid, have certified that the cattle, &c. aforesaid, are eloigned to places to you unkno^m, so that you could not have the view of them : Therefore I now command you and every of you, that you, or some one of you, take in ivit/iernam chattels to the value of the said cattle, &c. of the chattels of the said /. C. to be delivered to the said JV. B. for his cattle aforesaid, taken and eloigned as aforesaid : and also that you put, by safe gages and pledges, the said J. C. so that he be and appear at my next county-court at D. (on such a day) to answer to the said JV. B. of the plea aforesaid ; and you are, or one of you is, to return an answer to this my mandate at my said next county-court. Given under the seal of my office, the * day of in the year, «&c. By virtue of this writ to me directed, in my full county, Return to a held at F. in the county of the day of «nt of re. fa. Ic in the year of our Lord I have caused the (i)GEsp. 100. (/i) 1 Xew. R. 2a2. (/; 3 Star. 109. o 3 lyo The plaint. Summons of the bailiff to the defendant to appear on the recordari. Return to a w-rit of retorno hu- bend. elon'ratur. Return to a writ of second deliverance. REPLEVIN. plaint to be recorded, which was in my county, without the king's writ between the parties within named, which record appears in the shedule hereunto annexed ; I have the said record before his majesty, from Easter-day in one month within mentioned, wheresoever his majesty shall then be in Efigland, under my seal, and the seals of J. G., M. H., J. P. and S. W., four lawful knights of the said county who were present at the said record ; I have pre- fixed the same to the said parties, that then they may be there ready to proceed in the said plaint as I am witliin commanded. The answer of Then on a piece of parchment unstamped, write thus: 1 At my county-court, held at, &c. in the said to wit. J county, the day of in the year of the reign of our sovereign lord by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, &c. before A. E., K. £., P. K. and J. S., suitors of the said court (amongst other things) it is entered, (ss.) S, F. complains of J. M., of a plea of taking and unjustly detaining his goods and chattels, as well for prosecuting as for returning the same goods and chattels, if return thereof shall be ad- judged, are A. H. of, &c. yeoman, and T. H. of, &c. barber. To K. H, to wit. By virtue of a warrant from the sheriff of the county of I summon 3'ou to appear at the next county-court to be holden at the house known by the name of the sheriff's office, in in and for the said county, to answer G. ^, in a plea of taking and unjustly detaining of his goods and chattels. A. B. bailiff. Before the coming of this writ to me, the goods and chattels within mentioned were eloigned and removed, by the within named C. D., to places to me unknown, there- fore I cannot cause the same to be returned to the within- named A. B. as I am within commanded. By virtue of this writ to me directed, I have caused to be delivered to the within-named L. his cattle within men- tioned, as I am within commanded. r John Doe Pledges to prosecute,< and [ Richard Roe. Summoners of the within-named C. D. are D. K. and J. B, The answer of, &c. RESCUE. -IN CIVIL CASES. 199 'Every pone is only a summons to command the sheriff Return to a;w«e to sunnnon or prefix a day to the parties, plaintiff and ''^ "'"o"*- • defendant, that they appear in banco, Sfc. And what party is subject to. c. 5. s. 5. On pound breach or res- cous of goods, party to have action on the case. RESCUE. In Civil Cases. "O ESCUE is taking away and setting at liberty, against Rescue, wliat. law, a distress taken for rent, or services, or damage feasant ; but the more general notion of rescous is " the " forcibly freeing another from arrest," or some legal commitment, which, being an high offence, subjects the offender not only to an action at the suit of the party injured, but likewise to fine and imprisonment at the suit of the king (m). By 2 W.Sf M. St. 1, it is enacted, '< Tliat upon pound breach, or rescous of goods distrained " for rent, the person grieved shall, in a special action on '* the case, recover treble damages and costs against the *' offenders, or against the owner of the goods, if they " come to his use." And it is held he shall recover treble costs {n). If the sheriff arrests a person on mesne process, and he is rescued in going to gaol, the sheriff is not liable ; for as the sheriff, if he meets the party against whom he has such process, is bound to arrest him if pointed out to him, so he cannot be supposed to have the, posse comitatus then with him(o). And, in an action for a false return, it would be a good defence, that the party forcibly rescued himself, but not if he escaped from the negligence of the officer {p). In all cases oi mesne process in cases of rescue, he shall be excused, being on the same principle. But if he be once in the walls of the prison after such arrest on mesne process, he shall in all cases be liable (except the rescue ^vhen not be by the king's enemies, or the escape by reason of fire.) But the sheriff cannot return a rescue on process of exe- cution {q\ nor will it relieve him from his liability (r). When sheriff not Hable, but may return the rescue. (nO Co. Lit. 160. F. N. B. 226. (n) 1 Salk. 205. (<-) Cro. Jac. 419. Cro. El. 873. {[>) Fermor i'. Phillips, 1 Holt, N. P. 537. 4 Co. 84, a. 1 Roll. Abr. 808. (?) 1 Roll. Abr. 808, (r) Nieholl v. Darlcy, 2 Y. & Jer. Ex. R. 399. O 4 200 Party guilty of a rescue subject to a writ of rescous and to an action. Also an at- tachment. ]\Iay be in- dicted. Rescue on process from inferior court. Rescue from any of the courts of Westminster without striking a blow, forfeits goods and profits of the land, 22 E. 3. c. 13. Attachment will be granted against a peer. But will grant no attachment, unless tiie sheriff returns the rescue. c. 27. s. 1.5. A penalty and imprisonment for resisting an officer in certain places. RE.SCUE. — IN CIVIL CASES. The offence of rescuing persons on mesne process, or in execution after judgment, subjects the offender to a writ of rescous, or a general action of trespass vi et armis, or an action on the case, in all which damages are reco- verable. Also it is the frequent practice of the courts to grant an attachment against such wrong-doers, it being the highest violence and contempt that can be offered to the process of the court {s) ; and an indictment will lie for a rescue (?). An indictment for preventing an arrest on process issuing out of an inferior court, must state that the pro- cess was directed to the officer of the court (m). He who rescues a prisoner from any of the courts at Westminster-hall, without striking a blow, shall forfeit his goods and the profits of his lands, and suffer imprison- ment during life ; but not lose his hand, because he did not strike {x). And see now the further penalties im- posed by 1 & 2 Geo. 4, c. 88, and£) Geo. 4, c. 31. An attachment will not only be granted against a com- mon person, but even against a peer of the realm, for rescuuig a person arrested by due course of law ; so that if the sheriff in any case return to the court that a per- son arrested, or goods seized, or possession of lands deli- vered by him, by virtue of the king's writ, were rescued or violently taken from him, 8cc., they will award an attachment against the rescuers. But they will not grant such attachment unless the officer returns the rescue ; for it hath been found by experience that officers will take upon them to swear a rescous, where they will not ven- ture to return one (y). A return of rescue to an attach- ment for not bringing in the body, is insufficient, unless it states it vi et armis, and that the arrest was made in his own county ; but it need not state the names of the rescuers (c). The 8 & 9 TT. 3. inflicts a penalty of 30 1, for resisting the officer in Whitefriars, &c., and the offender to suffer imprisonment and be set in the pillory. And if any res- cous be made of any prisoner within any pretended privi- leged place there mentioned, the person making rescous, (s) F. N. B. 226. 3 Bulstr. 205. Co. Lit. 101. Cro. Jac. 446. Hob. 180. Salk. 586. («) Com. Dig. lit. Rescousj D. («) 5 East, iS04. (i) 3 Inst. 141. Cv) 2 H. P. C. 153. 6 Mod. 14l". (:) Rc.\ t. Sh. of Midd., 1 S. & B. 190. RESCUE. IN CIVIL CASES. 201 or assisting the same, being convicted, shall forfeit 500 /., and in default of payment, to be transported to the plan- tations for seven years; and any person harbouring a rescuer, knowing him to be such, to be transported for seven years. Upon readino- the return of a rescue, an attachment ^^ '.'f^^.'Ji"? *^e ^ t. ■ j^-i n , ■ , I J. u ■ slienft s return goes of course in the nrst instance ; but it is nevei ^^ ^ rescue, at- granted on affidavit of the fact (a). tachment of course. It was formerly the constant course, upon the return, Formerly set to set a certain fine of four nobles on each offender ; but ^ ^"^ °^ ^°"'' of late the court have fined according to their discretion, on the circumstances of the case (b). But where a defendant was brought up on an attach- Obstructing ment for rescuing a person arrested on a warrant for excise officei-s. obstructing excise officers, Ld. Kenyan said, it was the invariable practice to put the defendant to answer inter- rogatories ; but the prosecutor afterwards waived putting them, and the court passed judgment. The defendant in this case did not deny the facts charged in the affi- davits (c). Return of Rescous. If the sheriff arrests the defendant on mesne process if a rescue on and the defendant be rescued by J. S., he may return mesne process. the rescue, and such return is good (d) ; but not where the defendant is rescued after he is put in prison, except by the king's enemies (e). If a 7-escous he m^de upon mesne process, the sheriff What Is a good may return that the defendant was arrested, and rescued ^^^^^'^' himself, and that non est inventus after (f) ; or that he and others rescued (g). So the sheriff may return mandavi hallivo,vA\o returned mand. baiu. a rescous (A). The return of a rescous ou^ht to be certain, and there- Return of rescue fore if it does not show where he was arrested, it will be insufficient : so if it does not show the place where he was arrested, for perhaps it was out of the county (i). (a) Rep. & Ca. Pr. C. P. 126. (e) Cro, Jac. 419. 1 Str. 435. Bridger v. Colely, Tr. 5 Geo. 2, 5 Burr. 2814. K. B. Young V. Payne, Salk. 58G. ( f) Kitch. 160. b. 2 Cro. 419. (/)) R. V. Minify, 1 Str. 642. (o-) Kitch. 261. a. (f) R. V. Horsley, 5 T. R. 362. {h) 2 Roll. 457. 1. 5. i^ii) Glib. C. P. 23. [i) Yelv. 51. Mo. 422. ought to be certain. 203 Necessary to show the year, &c. If return of a bailiff of franchise. Ought to show person wlio ar rested was his bailifi; &c. Sufficient that he made war- rant. Sufficient that he was arrested, &c. That he was taken in the county. Rescued from A. bailiff of a liberty, without saying he had return, &c. That several rescued him. Rescued though taken by the bailiff. If warrant to two, arrest by one, return good. RESCUE. IN CIVIL CASES. It is necessary to show the year, day, and the persons who made the rescue {k). If the sheriff makes the return of a baihff of a franchise, he ought to show that he had the return of writs (l), and that the rescous was from such bailiff, and that it was vi et armis {m). It ought to show that the person to whom the sheriff directed his warrant was his baihff, and for what cause the warrant was directed to him {n). It is sufficient to say, that he made a warrant to arrest, without saying under seal, for the word warrant imports it(o). Sufficient that he was rescued out of the custody of a bailiff by virtue of a warrant to him made ; for this is out of the custody of the sheriff (j9). That he was arrested in the county aforesaid, though it does not say 'within his bailiwick ; for it shall not be intended out of it, if it be in the county {q). That he was rescued from A ., bailiff of a liberty, to whom he directed his warrant, without saying that he had the return of writs ; for it shall be intended the bailiff of the sheriff, and the words of a liberty rejected (r). That several rescued him, without saying et quilibet eorum se rescussit, for it is in the affirmative (s). That he was rescued from the sheriff, though taken by the bailiff (^). But the return of a rescue out of the cus- tody of the bailiff is bad, it should be out of his cus- tody (u). If it appear on the return that the warrant was to two, and the arrest by one only, yet the return is good ; for it is no exception m what relates to public justice {x). That the bailiff arrested the defendant is good. That the defendant being in my custody, is sufficient (y). (U) Moor, 422. Palm. 5G3. Sed contr., 1 Selw. & B. 190. (I) Cro. El. 781. (w) R. V. Midd. Sh., 1 Selw. & B. 190. (7!) Str. 155. (o) 2 Jon. 197. if) 2 Jon. 197. Salk. 5S6. 2 Lev. 28. {q) Yelv. 51. (r) Cro. El. 781. (s) 1 Vent. 2. (t) Str. 417. {u) Woodgate v. Knatchbull, 2 T. R. 155. (,r) Str. 117. (/) Str. 225. Fost. 362. RESCUE. -IN CIVIL CASES. 203 cue a conviction of itself. The return cannot be traversed (z) ; but the rescuer Return cannot may be admitted to give recognizances, to try false return <^traveise . against the sheriff : and if there be a verdict for plaintiff, the recognizance shall be discharged (a). The return of a rescue is of itself a conviction, and the Return of res- court will grant an attachment upon it in the first instance (&). The execution of this writ appears in the schedule Return of les- hereto annexed. cue by several The answer of, &c. By virtue of His Majesty's writ to me directed, and to this schedule annexed, I duly made my warrant, and directed the same to A. S. my bailiff, commanding him to take jr. C. in the said writ named, if he should be found in my bailiwick, and him safely keep, so tliat I might have his body before our sovereign lord the king on the day and place in the said writ mentioned, and before the return therof, to answer to A. H. in the plea and to the bill therein mentioned, which said bailiff, by virtue of my aforesaid warrant, afterwards, on the day of in the year of the reign of our lord the now king, at in the parish of in my county, arrested and took the body of the said W. C. according to my said warrant, and kept and detained him under such arrest and in custody as aforesaid, for want of bail to the said writ, from thence for the space of one hour then next following, and until the said W. C. and one J. K. of the same place, esq., G. H. of the same place, gent., and L. M. of the same place, gent., together with divers other persons to me and my said bailiff at pre- sent unknown, with ^orce and artns{c), made an assault on the said A. S. my bailiff, and then and there beat, wounded and ill-treated him, so that his life was thereby greatly despaired of; and the aforesaid PF. C. being so in custody, and under the said arrest as aforesaid, then and there out of my custody, and the custody of my said baihff, against my will, and the will of my said bailiff, did forcibly take and rescue, and at his free will and pleasure set and permitted to go at large whereso- ever he pleased, against the peace of our lord the now king. And he the said IV. C. then and there with force and arms, against my will and the will of my said bailiff, unlawfully then and there rescued himself out of my (i) -1 Burr. 2129. R. v. Elkins. (6) Cas. T. Hard. 112. 2 Salk. Barnes, 429. 586. Say. R. 121. («; Barnes, 430. (r) R. t,. Sh. of JMidJ., 1 S. & B. 190; 5upr. 200. n. (:). 204 Another return of rescue, where defendant was arrested on liorseljack and rode down the bailiff. In criminal matters. Rescuing a person for I'elony, is so. RKSCUE. IN CRIMINAL CASKS. custody, and the custody of my said bailiff, against the peace of our said lord the king, and afterwards the said ^r. C. was not found in my bailiwick: therefore I cannot liave the body of the said JV. C. in the said writ named before the lord the king on the day and place in the said writ named. The Answer o^ John Deyin, Esq. Sheriff. By virtue of His Majesty's writ to me directed, and to this schedule annexed, I made my warrant, bearing date the day of in the year of the reign of his present majesty, directed to L. M., my bailiff, commanding him that he should take J. B. in the said writ named, &c. [as in the Jirst return.'] By virtue of which said warrant, the said L. M. afterwards, and before the return of the said writ, to wit, on the day of in the year aforesaid, at L. S., in the said county of S., did take and arrest the within named J. B. who was then on horseback, and had and detained him in custody until the said J. B. afterwards, (that is to say) immediately after- wards, on the same day and year last aforesaid, at L. S. aforesaid, within my bailiwick, with force and arms, made an assault on the said L. M., and then and there beat down and rode over the said L. M., and then and there, against my will and consent, and against the will and consent of my said bailiff, rescued himself, and escaped from and out of my custody, and the custody of my said bailiff, against the peace of our lord the now king ; and afterwards the said J. B. was not found in my bailiwick : therefore I cannot have the body of the within named J. B- before the lord the king on the day and place in the said writ mentioned, as I am within commanded. The answer of, &c. In Criminal Cases. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment, and it is generally the same offence in a stranger so rescuing as it would have been in a gaoler to have voluntarily pennitted an escape : but upon voluntaiy escapes the principal must first be attainted before the rescuer can be punished, because it may turn out that there has been no offence committed (d ). It seems agreed that the rescuing a person imprisoned for felony, is also felony by the common law (e). (fO Fo3t. Cr. L. 344. 1 Hale, 007. (c) I H. P. C. COO. To make it felony. To make a rescue felony, the party res- cued must be under custody for felony, &c. Necessary to have knowledge that the person is under arrest RESCUE. — IN CRIMINAL CASES. 205 That a stranger who rescues a person committed for So tl^e^same for and guilty of high treason, knowing him to be so com- "S ' treason. mitted, is in all cases guilty of high treason, whether he knew that the prisoner was so committed or not (/). To make a rescue felony. Lord Hale says, 1 . That it is necessary that the felon be in custody, or under arrest for felony ; and therefore if A. hinder an arrest, whereby the felon escapes, the township shall be amerced for the escape, and A. shall be fined for the hindrance of his taking ; but it is not felony in A., because the felon was not taken {g). So to make a rescue felony, the party rescued must be under custody for felony, or suspicion of felony; and it is all one whether he be m custody for that account by a private person, or by an officer, or warrant of a justice ; for where the arrest of a felon is lawful, the rescue of him is felony; but it seems necessary that he should have knowledge that the person is under arrest for felony, if he be m the custody of a private person. But if he be in custody of an officer, as constable or sheriff, there at for felony his peril he is to take notice of it ; and so it is if there be felons in a prison, and A., not knowing of it, breaks the prison, and lets out the prisoners ; though he knew not that there were felons there, it is felony (A). A person committed for high treason, who breaks the prison and escapes, is guilty of felony only, unless he lets others also escape whom he knows to be committed for high treason, not in respect of his own breaking of prison, but of the rescous of others (i). Wherever the imprisonment is so far groundless or irregular, or the breaking of a prison is occasioned by such a necessity, &c., that the party himself breaking prison is, either by the common law or by the statute de frangentihus pi'isonam, saved from the penalty of a capital offender, a stranger who rescues him from such an imprisonment is in like manner also excused, et sic e converso {k). Return of a rescue of a felon by the sheriff against A. is not sufficient to put him to answer : for it is a felony, without indictment or presentment. to answer ; A person com- mitted for high treason breaks the prison and escapes, is guilty of felony. If imprisonment of the person is groundless, rescue excused. Return of rescue of a felon by the sherift" not sufficient to put 25 E. 3. c. 4. (f) St. P. C. 11. Cvo. Car. (/t) 1 Hale, 606. .583. (0 2 Haw. 110. Ci!) 1 Hal. H. P. C. 606. (k) lb. 139. Cvo. Car, 583. 20G c. 23. s. 5. Rescuing felons oideied for transportation. 9 Geo. 1. C.28. 1 & 2 Geo. 4. 9 Geo. 4. c. 31, s. 25. To be punished by indictment, and what it ought to set forth. COUNTY COURT. By 6 Geo. 1, " If any person shall rescue felons ordered for trans- " portation, or assist them in making their escape, he shall " be guilty of felony, and suflFer death without benefit of " clergy." Rescuing persons arrested in the Mint, felony. And where parties guilty of the offence of rescue would by law be guilty of a clergyable felony, subject to the punishment of imprisonment not exceeding one year, they are now punishable with seven years transportation, or imprisonment, or imprisonment and hard labour, for any term not exceeding three years, nor less than one. And persons guilty of assaulting any officer with intent to prevent the apprehension or detainer of parties liable to be apprehended or detained for any offence, may be punished with imprisonment in the common gaol or house of correction, with or without hard labour, for any period not exceeding two years, and may be also fined and required to find sureties for keeping the peace. This offence is punished by mdictment ; and such indictment ought to set forth " the special circumstances of the fact with such certainty as to enable the defend- ant to make a proper defence." For no defect can be aided by the verdict (/). Therefore the day is material (m). But it is not necessary to allege the place where the rescue was made, for it is to be intended where the arrest was, there also was the rescue, without the word ihidem {n). County court incident to the office of sheriff; but not a court of record ; holds plea for under 40 s. G E. I.e. 8. Exclusive juris- diction. THE COUNTY COURT. ^PHE county-court is the court of the sheriff (o). It is ■*■ not a court of record, but may hold plea of debt or damages rnider the value of 405. Over some of which causes, these infeinor courts have, by the express words of the statute of Gloucester, a jurisdiction totally exclu- sive of the king's superior courts, providing, *' That sheriffs shall plead pleas of trespass in their coun- " ties, as they have been accustomed to be pleaded ; and " that none shall have wTits of trespass before justices " unless he swear by his faith that the goods taken away " were worth 405. at the least." (0 Dy. 164. IRoU. Abr. 781. (m) Moor, 55. Rast. Ent. 263. (re) Cro. Jac. 345. 2 Bulstr. 208. (0) 4 Co. 33. COUNTY COURT. This court may also hold plea of many real actions, such as dower, right patent, or right ward ( p), and of all personal actions to any amount, by virtue of a special writ called a justicies ; which is a writ issued out of the Chancery, empowering the sheriff, for the sake of dis- patch, to do the same justice in his county-court as might otherwise be had at Westminster (q). The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer. This great conflux of freeholders, which are always supposed to attend at the county-court, is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed, 13 El. : and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderers, and knights of the shire, must ever be made in pleno comitatu, or in full county- court. The sheriff acts in a judicial character in the county- court, and is therefore not responsible for the wrongful acts of his bailiff in the execution of process out of that court (r). In ancient times, pleas of the crown, indictments of felony, trespasses, and other offences, were depending in the torne, as appears by Glanvil (s) ; by Bracton and Britton in divers places ; and by Fleta (s), until the statute of Magna Charta, which says expressly, " That no sheriff shall hold pleas of the crown." And by 1 Ed. 4, it is ordained, " That the sheriff, under-sheriffs, clerks, viz. county-clerks, " and their ministers, shall bring, present, and deliver all " indictments taken before them in their turns or law-days, " to the justices of the peace, at the next sessions of the " peace." As this court hath of ancient times belonged to the sheriff, and incident to the office, the king cannot grant by letters patent the office of county-clerk, nor the fees, which of right belong to the sheriff (m). • 207 Holds plea of real actions, and personal actions by writ oijuiticies. The freeholders are the j udges ; sheriff" is the ministerial officer. c. 3. All acts for- merly read, and outlawries there proclaimed, and all elections, &c. made in full county-court. In ancient times indictments, dec. were in this torne. c. 17. c. 2. But sheriff' is now not to hold pleas of the crown, but deli- ver them to the justices, &c. Sheriff to ap- point county- clerk. (p) 4 Inst. 266. 3 Inst. 312. (?) Finch, 318. F. N. B. 152. (r) Tinsley v. Nassau, 1 M. & Malk. N. P. 52. (s) Lib. 1. c. 2, 3, 4. (t) Lib. 2. c. 62. (u) Mitton's case, 4 Co. 32. 208 County-eleik to depute bailitls, County -clerks to make tlie usual process, ike. When lie ad- journs the court, to appoi nt a day certain for the next. II olden from month to month. 9 11. 3. C.35. 2Kd. 6. c. 25. 34 H. 8. c. 26. The necessity of keeping it monthly. Coroners to sit. Courts in York held on ]Mon- day now to be helil on ^Vednesday. 7& 8 W.3. c. 25. s. 9. JMay be kept in any place. COUNTY COURT. The county-clerk must be careful in deputing honest, able and sufficient men as bailiffs, for the executing of precepts issuing out of the court ; and it is just cause of superseding them if they take unreasonable distresses, or more than the accustomed fees, or do not make return of their precept to the county-clerk, or the plaintiff's attor- ney. He must make the usual process, after the plaints entered against the defendants, directed to the sheriff's bailiff, to summon, attach or distrain the defendant by his goods, to appear at the next county-court after, to answer the plaintifl" in the action. At the adjourning of every court he must appoint a day certain for the next court, to the intent that the county may know at what time to resort thither, to have the writs o^ exigent ^\\& proclamations read. When to he holden. This court is to be holden and kept from month to month on a certain day, and shall be no longer deferred. And the computation shall be by lunar months {x), and not calendar. And so within the twelve shires of Wales, the sheriffs shall keep their courts monthly. And so within the county palatine of Chester. The necessity of keeping this court every month, and on a day certain, is by reason of the king's writ oi exigent, which must be proclaimed or read there. And the coroners are to sit with the sheriff at every county-court, to give their judgments upon outlawries {y). But in London, the judgment upon outlawries is given by the recorder in the court of Hustings {z). All county-courts held for the county of Yorh, or any other county-courts that used to be held on Monday, shall be called and begun on Wednesday, and not other- wise. At what Place. This court, by the common law, may be kept or holden in any place, at the pleasure of the sheriff' or under-sheriff", so that it be within the county, if it be not appointed by statute in a place certain. As for instance, Northum- 2 Ed. 6. c. 5. herland, at the town of Alnivick. Sussex, at Chichester 19 H. 7. c. 24, one time, Leioes at another, and so alternis vicihus for ever. (t) 2 Inst. 71. (u) Dyer, 223. Finch, IIG, (:) Co. Litt. 288, b. COUNTY COURT. 2^^^ Chester y in the shire-hall of the said county. And go'^j'^^y ^ j.j the sheriff's shii'e-courts in Wales : of the county of \y^^^l Brecknock, at Brecknock ; of Radnor, at New Rad- nor and Preston; of Montgomery, at Montgomery and Machynlleth; of Denhigh, at >Frea;Zta»i ; and of ilio«- mouth, at Monmouth and Newi^ort, alternis vicibus. The sheriffs of the counties of TFa^es shall hold plea of Sheriffs of replegiari, and all other suits and plaints U7ider 40 s., in 27^1.^ 8. c. 2« their county or shire-courts, in like manner as all other 34 11. 8. c. 20. sheriffs do within the realm of England. But if a plea be there by justicies, the sheriff ought to Justices. be there in person, and cannot make a deputy. For if he does, the proceedings will be coram non judice, and void (a ). But if the court is alleged to be held before the sheriff, it seems to be well. 28 H. 6. 34. For to this court all persons dwelling within the To this court county, being summoned, ought to appear, by reason of all persons their residence in it ; and if they do not appear according the county to summons, they are attached, or distrained by their are to appear, goods, to answer the plaintiff in the suit. But no fine can be imposed on any offender, because it is no court of record (b). The style of the court is. Style of the <' , ss. The first court of the county of " , Esq. sheriff of the county aforesaid, held at county-court. court floes not lold plea of. And the next court, " the second, and so forth." It holds no suits of charters for lands, or for inherit- Wiiat this ance, or to make several plaints upon one entire debt, nor any action to compel one to render an account, though under 40 s. ; because the sheriff cannot assign auditors, who are judges of the record ; and this is no court of record (c). Nor can it hold plea of any debt due by record. Nor debt due on bond Nor action of deceit, maintenance, or forgery of false deeds {d). Nor unless both defendant reside, and the cause of action arise, within the jurisdiction of the court, even for less than 40s. (e); and where these circumstances do not concur, the action must be brought in the superior court. (,0 2 Leon, 34, 210. (uhlic notice must have been given of the time and place of tlie election. c. 84. s. 4. Within two days after receipt of the writ, procla- mation to be made of the election, which must begin not later than the 16th day, nor sooner than the 10th. How proceed- ings were before 25 Geo. 3. 7 & 8 W. .S. c. 23, s. 3. (i) Freem. 17. 1 Vent. 20ti. 2 \'ent, 25. 2 Lev. .50. V. L !<; C T 1 ( ) N O !■ M E M R t U S . 2 2 f ) In the borough Neiv Shoreham in Sussex, where cer- ShorcUaui. tain freehoklers of the county are entitled to vote, the ii Geo.s.c.rjS. election must be within tivelve days, with eight days notice. For the election of citizens and burgesses, the sheriff Citizens and sends his precept under his hand and seal to the returning -""'oess-es. officer within the city and borough, directing him to com- ply with the substance of the writ, and he is to issue sucli precept within three days after the receipt of the writ, and deliver the same to the proper returning officer, and no other ; who is to indorse the date of the receipt thereof in the presence of the person delivering it, and proceed to 7 & 8 vv. 3. the election within eight days from the receipt of the c- 2.5. s. i. procept, giving y"oMr days notice thereof. The notice should express the purpose of the meeting, What notice as well as the time and place, and must not be for a meet- ^"^j'^s" ing generally {s). If the returning officer die during the poll, his successor if sheriff die. may execute and finish {t). Undue influence being guarded against by the several iTow sheriff is statutes to prevent bribery, the election is to be proceeded '° pi^oceed on to on the appointed day; the sheriff, or other returning officer, first taking an oath against bribery, and for the 2 Geo. 2. due execution of his office : the candidates likewise, if re- ^' ^^' ^' ^' quired, must swear to their qualifications ', and the elec- '-^ ''^""- ^" ^• tors in counties to theirs ; and the electors both in coun- ties and boroughs are also compellable to take the oath of abjuration, and that against bribery: and before they 7&8W.3.c.i7, vote, to take the oath of allegiance and supremacy. And all electors iov cities and boroughs shall swear to their 25 Geo. 3. c. 8. names, additions. Sec, and that they are of the age of twenty-one, and have not polled before. The election being closed, the returning officer in boroughs returns his precept to the sherift", with the persons elected by the majority ; and the sheriff returns the whole, together with the writ for the county, and the knights elected thereupon, to the clerk of the Crown in Chancery, before the day of meeting, if it be a new jmrliament, or within fourteen days after, if it be an occasional vacancy, and this under the penalty of -500 Z. If he does not return such knights only as are duly elected, he forfeits by the old statute of H. 6, 100 Z., and the returning officer i)i boroughs, for a false return, 10/., and liable to an action -' Simeon on Elect. lo3. (t) 4 Com. Dig. 29. 1 Doug. 113, 138, Q 3 230 ELECTION OF MEMBERS. for double damages. But the members returned by him are the sitting members until the House of Commons, upon petition, shall adjudge the return to be false and illegal. To disturb the proceedings in a county-court for the election of a knight is so serious an offence against public order, that the sheriff may order a person so offending to be taken into custody, and carried before a justice, to give security for good behaviour, or he may be punished by indictment (m). The returnino- officer has a discretion in admitting or rejecting votes, and no action can be mamtamed agamst liim for refusing a vote, unless it be shown to result from a malicious and improper motive, which is altogether a question for a jury (x). The several Acts. I shall next state the acts of parliament relative to elec- tions for members, from 7 H. 4. to the present period, respecting the duty of the sheriff and returning officer, and afterwards the return of the writ, and indentures taken thereon. ^- ^'' By 7 H. 4, the election of kniqhts of the shire is to be How election j • -i r n • of knights made m the toUowuig manner : ouo^ht to be. " At the next countij-court after the delivery of the ivrit, " proclamation is to be made by the sheriff of the county " of the dai/ and place the parliament is to assemble, and that " all as are there present shall attend at the election of " knights of the shire ; and then, in full county, a free and " indifferent election shall be made;" " and after they " be chosen, the names of the persons shall be written in " an indenture, under the seals of them that did choose them, " and tacked to the writ, which indenture, so sealed and " tacked, shall be the return." And in the writs of pai'lia- ment this clause shall be put : " and your election in your " full county made, you shall without delay distinctly and " openly certify under your seal, and the seals of them who " were concerned in that election, to us in our Chancery, at " the day and place in the writ retained." c. 1. By 11 H. ^, the justices of assize shall have power to inquire of returns made by sheriffs, and if found by inquest that he hath made return contrary to stat. of 7 H. 4, he shall incur the penalty of 100 1, to the king, and the knights unduly returned shall lose their wages. (it) Spilsbury D. Micklctliwaitc, 1 (.)) Cullen v. Morris, 2 Staik. Taunt. IIG. 577. ELECTION OF MEMBERS. 231 The 1 H. 5, c. 1, is repealed by 14 Geo. ;J, c. 58, and 8 JI. G, c. 7, and the 8, 10 and 23 H. 6, so far as relates to the residence of persons to be elected, or of the persons by whom they are to be chosen. By the 2.5 II. 6, c 14. " Every sheriff, after the delivery of any writ to him, Eveiy sheriff *' shall make and deliver, without fraud, a sufficient pre- shall, withm " cept under his seal, to evcrj/ mayor and bailijf, or to J^'i']^ ^ pre- " bailiff's or bailiff] where no mayor is, of the cities and ^^„^ to every " boroughs within his county, reciting the said writ, com- mayor, &.c. " manding them, if it be a city, to choose by citizens of the " of the same city citizens, and in the same manner and " form, if it be a boi-ough, by the burgesses of the same, to " come to the parliament. And that the same mayor. See. " shall return lawfully the precept to the same sheriff, by ■" indentures betwixt the same sheriff and them to be made, " of the said elections, and of the names of the said citizens " and burgesses by them so chosen, and thereupon every " sheriff shall make a good and rightful return of every liightful return. ■" such writ, and of every return by the mayor and bailiffs, " or bailiffs or bailiff, where no mayor is, to him made, in " default forfeits loo/.with costs : and any mayor, &:c. who " shall return other than those which be chosen by the " citizens and burgesses, forfeits to the king 40/., and 40^. to the person chosen." s. 1. Every sheriff that maketh no due election of knights in Slicriff not convenient time, viz. every sheriff in his full county, be- "J^^t"o^'&c, tween the liours of eight and eleven before noon, and maketh not true return of such elections, forfeits 100 Z. to the king, and 100 Z. to him that will sue, with costs ; to be sued for by such knights within three months after the parliament begun ; if not, to him that will sue. By the 7 & 8 W. 3, c. 2.5. s. 1. " That as well upon the calling or summoning any new AVrits to be " parliament, as also in case of any vacancy, the several delivered to " writs shall be delivered to the proper officer to whom the o|^(.e',°^,vho is " execution thereof doth belong, and to no other person ; t^ indorse them " and that every such officer, on the receipt of the same and make out " writ, shall on the back thereof indorse the day he received the precept. " the same, and shall forthwith, upon receipt of the writ, " make out the precept or precepts to each borough, town- " corporate, port, or place within his jurisdiction, where " any member or members are to be elected to sei've, or to " supply any vacancy, and within three days after the Precept to be *' receipt of the writ(w), shall, by himself or agent, deliver delivered in 3 * \^/' ' ./ o days after re- (y) Now two days, by 25 Geo. 3^ c. 84. (.^,ipt of writ. Q 4 2;3-i Otficer to in- dorse the day of receipt, and pive notice of t;ii;e of election in 8 days. To take no fee for leturn. County-rourt to be held, and proceed to elec- tion, unless it fall out in six ilays after receipt of writ. See 25 G. 3. c. 84. SlierifF to take the poll, if re- quired, and to appoint clerks. Names of free- holders to he set down, and for whom they poll. Freeholders to he sworn. s. 3. Oath. Sheriff not to adjourn the court unless the candidates consent. ELECTION OF MEMBERS. " such precept to the proper officer of every such borough, " &c. to whom the execution doth belong ; and every such " officer on the back of the same shall indorse the day of " his receipt, in the presence of the party, and shall forth - " with cause public notice to be given of the time and place " of election, and shall proceed to election thereupon, within " eight days next after, and give four days notice at least " of the day appointed for the election." Neither the sheriff nor under-sheriff, nor the mayor or other officer of any borough, &c. shall pay or take any fee for the making out the receipt, delivery, return, or exe- cution of the precept. " That upon every election, the sheriff of the county shall " hold his county- court at the most public and usual place " of election, where the same has most usually been for " forty years last past ; and in case the said election be not " determined on the view, with the consent of the free- " holders, but a poll be required, then the said sheriff or " under-sheriff, &c. shall proceed to take the said poll, in " some open place, by the same sheriff, &c. appointed ; and " for the proceeding in the said poll the said sheriff or " his under-sheriff, &c. shall appoint clerks for taking " thereof, which clerks shall all take the said poll in the " presence of the said sheriff, &c. ; and before they begin, " every clerk shall, by the said sheriff, &c. be sworn truly " and indifferently to take the same poll, and to set down " the name of each freeholder, and the place of his free- " hold, and for whom he shall poll, and to poll no freeholder " who is not sworn, if so required by the candidates (which " oath the said sheriff, &c. is to administer) ; and the " sheriff, &c. shall appoint for each candidate such one " person as shall be nominated to him by each candidate, " to be inspectors of every clerk who shall be appointed " for taking the poll ; and every freeholder, before he is " admitted to poll, shall, if required, take the oatli after '< mentioned (which the sheriff, &c. are hereby authorized " to administer)." viz. You shall swear that you are a freeholder for the county of and have freehold lands or here- ditaments of the yearly value of 40 s. lying at within the said county of and that you have not been before polled at this election. The sheriff, cVc. shall proceed to the polling all the free- holders then present, and not atljourn the county-court to any other tor/n or place without the consent of the candi- dates, nor shall delay the election, but i)roceed in taking of the poll, from day to day, without further adjournment, KLECTION OV MF.MBERS. without the consent of the candidates, until all the free- holders present shall be polled. Every sheriff, &c. shall forthwith deliver to such person as shall desire the same, a copy of the poll taken, paying a reasonable charge for writing the same ; and every sheriff, &c. for every wilful offence, shall forfeit to every party aggrieved 500/., to be recovered, with full costs of suit, by action of debt, &c. That the sheriff of Southampton, or his deputy, at the request of one or more of the candidates, shall adjourn the poll from Winchester, after every freeholder present is polled, to Neivport, in the Isle of Wight, for the ease of the in- habitants of the said island. By 10 & 11 W. 3. That the sheriff, or other officer, shall, on or before the day that any future parliament shall be called to meet, not cy.ccciWn^ fourteen days after any election made, either in person, or by his deputy, make return of the same to the clerk of the Crown in the high court of Chancery, to be filed ; and pay 45. for every knight of a shire, and 2 s. for every citizen, burgess or baron of the cinque ports, returned ; and the sheriff shall charge the same to His Majesty, and have allowance in his account. That the proper officer of the cinque ports shall be allowed six days from the receipt of such writ for the delivery of the precept. Every sheriff, &c. who shall not make the returns shall forfeit 500/., one moiety to His Majesty, and the other to him that shall sue, to be recovered by action of debt, &c. By 9 Ann. Every person (qualified by this act) who shall appear as a candidate, or be proposed to be elected to serve as member for any county, city, borough, or cinque port in Evgland, ik.c. shall, on request by any other person who shall stand candidate at such election, or by any two or more persons having right to vote at such election, take the oath following : " I, A. B. do swear, that I truly and bona fide have such " an estate, in law and equity, to and for my own use and " benefit, of or in lands, [tenements or hereditaments,] " over and above what will satisfy and clear all incum- " brances that may effect the same, of the annual value of " 600/. above reimzes, as doth qualify me to be elected *' and returned to serve as a member for the county of " according to the tenor and true meaning of ■" the act of parliament in that behalf; and that my said •233 Copy of poll delivered, if desired. Penalty, &c. s. G. Poll adjourned f^om^^'inchesle^■ to Newport, Isle of Wight, s. 10. c. 7. s. 1. Writs to be returned 14 days after election. Sheriff on re- turn of writ to pay the ancient fees, &c. In the cinque ports 6 days allowed. s. 2. Penalty for not making return. s. 3. c. 5- s. 5. Every candidate at the request of another, shall take the following oath. 234 If candidate hu for a city, ^c. s. 0. The oalh admi- nistered by the sheriff, who sliall certily the same into the K.B. or Chan- eery, or forfeit 100 ^ s. 7. Candidate re- fusing to take tiie oath, tiie election to be void. 2. 24. s. 1. Electors to take the following oath, if demanded. Elector's oath. Presiding officer to administer it, on foifeiture of 50 /. ELECTION OF MEMBERS. " lands, [tenements or hereditaments] are lying or being " within the parish, [township or precinct] of [^or, " in the several parishes, townships, or precincts of " in the county of or, in the several counties of " as the case may be]." And in case such candidate is to serve for any city, &c. the oath shall relate only to the value of ^oo I. per annum, and be taken, the same effect {mutatis mutandis). That the oaths shall be administered by the sheriff or under-sheriff for any such county, or by the mayor, Sec, to whom it shall appertain to take the poll, or make the return at such election for the same county, &c. or by any two justices of the peace within England, Wales, and Bertvick-tipon-Tiveed . And the said sheriff, &c. and justices of the peace, are required to certify the taking thereof into Chancery, or the Queen's Bench, within three months after the taking the same, under the penalty of lool., one moiety to the queen, and the other to such persons as will sue ; to be recovered, with full costs of suit, by action of debt, &c. ; and if any of the said candidates proposed to be elected shall wilfully refuse, on reasonable request, or at any time before the day upon which such parliament by the writ of summons is to meet, to take the oath, then the election and return of such candidate shall be void. No fee for administering the oath or filing the certificate, except 1 s. for administering the oath, 2 s. for making the certificate, and 2*. for filing, under the penalty of 20s. By 2 Geo. 2. Upon every election of any member, every freeholder, citizen, &c. shall, before he is admitted to poll, take the following oath, or, being one of the people called Quakers, make affirmation, in case the same be demanded by either of the candidates, or two of the electors : " J, A. B. do swear, [or, being one of the people called " Quakers, I, A. B. do solemnly affirm,] I have not received " or had, by myself or any person whatsoever in trust for ." me, or for my use and benefit, directly or indirectly, any " sum or sums of money, office, place or employment, " gift or reward, or any promise or security for any money, " office, employment or gift, in order to give my vote at " this election, and that I have not before been polled at " this election." Which the officer presiding, or taking the poll, is empowered to administer, gratis, if demanded, on pain to forfeit 50/. to any person, to be recovered, with full costs of suit, by action of debt, &c. And if the offence shall be committed in Scotland, to be recovered, with full costs, by summaiy Sheriff, &:c. admittino any to be polled, before sworn, to forfeit 100/, Voters to incur the penalty. s, 2, Returning officer to take the following oath, s. 3. The oath. ELECTION OF MEMBERS. 235 action or complaint before the Court of Session, or by prosecution before the Court of Justiciary there ; and no person shall be admitted to poll till he has taken the said oath, in case the same shall be demanded. If any sheriff, &c. shall admit any person to be polled without taking such oath or affirmation, if demanded, such relurniiig officer shall forfeit looL, to be recovered, with full costs of suit ; and that if any person shall vote or poll at such election without having first taken the oath, or, if a Quaker, having made affirmation, if demanded, such person shall incur the same penalty. Every sheriff', &c. being the returning ofjicer, shall, im- mediately after reading the writ or precept for the election, take and subscribe the following oath ; viz. " I, A. B. do solemnly swear, that I have not, directly " or indirectly, received any sum or sums of money, office, " place or employment, gratuity or reward, or any bond, " bill or note, or any promise or gratuity whatsoever, either " by myself, or any other person to my use or benefit or " advantage, for making any return at the present election " of members to serve in parliament ; and that I will return " such person or persons as shall, to the best of my judg- " ment, appear to me to have the majority of legal " votes (z). Which oath, any justice of the peace of the said county, &c., where such election shall be made, or, in his absence, any three of the electors, are required to administer ; and such oath shall be entered among the records of the ses- sions of such county, &c. If any returning officer, elector, or person taking the oath or affirmation, shall be guilty of wilful perjury, or of false affirming, and be convicted, shall incur and suifer the pains and penalties inflicted in cases of wilful and cor- rupt perjury. No person convicted of wilful and corrupt perjury, or subornation of perjury, shall, after such conviction, be capable of voting in future. All sheriffs, Sec. shall, immediately after reading such writ or precept, read or cause to be read openly, before the electors, this act. Every sheriff, Szc. for every wilful offence shall forfeit por wilful sol., to be recovered, together with full costs of suit, offences to forfeit 50 L By 18 Geo. 2. '• ^"■ Upon every election to be made of any knight, every I'reeholder, instead of the oath or affirmation prescribed to (s) Repealed, as to Scotland, by 16 Goo, 2. c. 11. s. 18. Justice of peace may administer the oath. Penalty of wilful perjury, s. 5. Persons convict- ed not to vote, s. 0. Act to be read by the sheriff, &c. s. 9. c. 18. s. 1. Oath instead of 10 Ann. c. 23. 236 The oatli Whicli oath sheriff', &c. to administer. Boot lis to l)e erected at the expense of the candidates, for taking polls, s. 7. KLECTION OF MEMBERS, be taken by the loth of Ann. intituled, " An act for the more efFcctual preventing fraudulent conveyances, in order to multiply votes for electing knights of shires to serve in parliament," before he is admitted to poll at the said election, shall (if required) first take the oath or affirma- tion following : " You shall swear, [or, being one of the people called " Quakers, you shall solemnly affirm] that you are a free- " holder in the county of and have a freehold " estate, consisting of [specifying the nature " of such freehold estate, whether messuage, land, rent, " tithe, or what else, and if such freehold estate consists " in messuages, lands, or tithes, then specifying in whose " occupation the same are ; and if in rent, then specifying " the names of the owners or possessors of the lands or " tenements out of which such rent is issuing, or of some " or one of them,] lying or being at in the county " of of the clear yearly value of 405. over and " above all rents and charges payable out of or in respect " of the same ; and that you have been in the actual posses- " sion or receipt of the rents and profits thereof, for your " own use, above twelve calendar months, [or that the " of same came to you, within the time aforesaid, by descent, " marriage, marriage-settlement, devise, or promotion to " to a benefice in a church, or by promotion to an office] ; " and that such freehold estate has not been granted or " made to you fraudulently, on purpose to qualify you to " give your vote ; and that your place of abode is at " in and that you are twenty-one years " of age, as you believe ; and that you have not been " polled before at this election," Which the sheriff", Sec. is to administer. And in case any freeholder shall commit wilful perjury, and be con- victed ; and if any person do unlawfully and corruptly procure or suborn any freeholder, or other person, to take the said oath, &c. in order to be polled, whereby he shall commit such lawful perjury, and shall be con- victed, he shall incur such penalties as are inflicted by 5 El. c, 9, and 2 Geo. 2. That at every election, the sheriff shall make, or erect, at the expense of the candidates, convenient booths or places for taking the poll, as the candidates, or any of them, shall, three days at least before the commencement of the poll, desire, so as the same do not exceed the num- ber or rapes, lathes, wapentakes, wards, or hundreds within the said county, and not exceeding /i/?f?CK ; and shall affix, on the most public part of the said booths, the names of 2:n SheiifFto ap- point clerks for polling at the candidates expense. List of towns, &c. for each booth. c. 24. ELECTION OF MEMHEUS. the rape, wapentake, lallie, ward, or hundred, or rapes, &c. for which such booth or polhng-place is allotted or de- signed ; and the said sheriff hhixW appoint proper clerks, at each of the said booths, to take the poll (which said clerks shall be at the expense of the candidates, and be paid not exceeding one guinea per day each clerk) ; and the said sheriff ^?Xi make out a list for each of the said booths, of all the several towns, villages, parishes and hamlets, lying or being wholly or in part in the rape, &c. for which such booth is allotted, and shall, on request, deliver a true copy to any of the candidates, or their agents, who shall desire the same, taking for each copy i s. In an action brought by the high baihfF of Westminster to recover the defendant's share of the expenses, the court held that it w^as not necessary to prove that the sheriff, previous to taking the poll, had complied with the 2 Geo. 2, the onus lying on the defendant, as the law would presume, omnia rite acta ; that it was not ne- cessary to produce the writ to the sheriff, but the precept to the bailiff was sufficient proof that the election had been duly held ; that the poll-books need not be pro- duced to prove that the defendant was a candidate, his having used the hustings, &c. was sufficient, at least he could not take the objection after verdict; the court dis- allowed the charge for constables, it being the bailiff's duty to employ them to keep the peace ; but charges for watching at night, beer to the workmen employed, pavi- ours and surveyors bills, were admitted as part of the expenses of the hustings, &c. (a). That no sheriff, &c. shall admit any person to vote for any lands, &c. sworn by the said oath to be lying at some parish, town or place, or parishes, towns or places, which parish, &c., is not mentioned in the said list so made out for such booth, &c., unless such lands, &c., lie in some town or place not mentioned in any of the lists so made out. That the sheriff, &c. shall allow a cheque-book, for every poll-book, for each candidate, to be kept by their respective inspectors, at every place where the poll or such election shall be taken or carried on. That no sheriff shall take upon himself to adjourn the Adjournment. the court for longer than sixteen days. s. io. That in case any such sheriff. Sec. shall wilfully offend G Geo. 2. c. 23. against this act, he shall be prosecuted by information, &c. s. i, repealed. Voting to be regulated by the list, s. 8. A cheque book for every poll- book allowed, s. 0. 12. ((i) Morris v. Hunt, 1 Ch. 4.53. Morris v. Burdett, 2 M. & S. 212. 23ft i;i,K('TH)N oi' mi:mrrus. r. 28. s. 1. By 19 Geo. 2, I'crsons de- That every person demanding to vote for such city or numding lovote, town, being- a county of itself, in that part of Great Britain f' k'J'fl^'! tl'" called England, in respect of any freehold estate, shall, be- iollowiiitr, &c. fo'*^ ^^^ '^ admitted to poll at the said election, (if required,) first take the oath following ; viz. U'he oath. " You shall swear, [or, being a Quaker, you shall so- " lemnly affirm,] that you have a freehold estate, consist- " ing of [specifying the nature of such freehold estate, " whether messuage, land, rent, tithe, or what else ; and " if such freehold estate consists in messuages, lands, or " tithes, then specifying in whose occupation the same are ; " and if rent, then specifying the names of the owners or " possessors of the lands or tenements out of which such " rent is issuing, or of some or one of them], lying or being " in the city and county [or town and county, as the case " may be] of of the clear yearly value of " 405. over and above all rents and charges payable out " of or in respect of the same; and that you have been in " the actual possession or receipt of the rents and profits " thereof, for your own use, above twelve calendar months ; " [or, that the same came to you, within the time aforesaid, " by descent, marriage, marriage-settlement, devise, or " promotion to a benefice in a church, or by promotion to " an office ;] and that such freehold estate has not been " granted or made to you fraudulently, on purpose to " qualify you to give your vote ; and that the place of " 3^our abode is at in ; and " that you are twenty-one years of age, as you believe ; " and that you have not been polled before at this elec- " tion." The oath, &c. Which the sheriff, &c. is requii'ed to administer : and in by whom admi- case any freeholder or other person taking the same shall nisteied. commit wilful perjury, and be convicted; and if an}' per - Wilful perjury son do corruptly procure or suborn a freeholder to take and suboma- ^|^g g^;^ 'oath or affirmation, whereby he shall commit "^"' such wilful perjury, and be convicted, he shall incur such pains and penalties as are mentioned in 5 Eliz. c. 9, and 2 Geo. 2. Sherifis to allow That the sheriff of any city or town, &c. shall, at every a cheque-book. election, allow a cheque-book for every poll-book, for each candidate, to be kept by their respective inspectors, at the s. G. place where thepole for such election shall be taken. Sheriffs to give That the sheriff shall forthwith, upon the receipt of the public notice, writ, cause public notice to be given of the time and place of election, and proceed to election within eight days next &(: ELECTION OF MEM15ERS. after receipt of the writ, and give three days notice at least, exclusive of the day of the receipt of the writ, and of the day of election. That in case any sheriff, Sec. shall wilfully offend, he shall be liable to be prosecuted by information or indict- ment. That every action, &c. shall be commenced within 777ne calendar inonths after the fact committed. That all the statutes of jeofails shall extend to all pro- ceedings in any action, Szc. allowed by this act. That in case the plaintiff or informer in any action, &c. shall discontinue, or be nonsuited, or judgment be given against him, then the defendant shall recover treble costs. Provided, that this act (other than and except such clauses and provisions as are by this act made for or con- cerning allowing cheque-books, or for or concerning notice to be given of the time and place of election, and proceed- ing to election thereupon) shall not extend to any city or town being a county of itself, or to any person where the right of voting, &c. is in respect of burgage-tenure, or where such right does not require the same to be of the yearly value of 40 s. By 3 Geo. 3, That if any mayor, &c. shall wilfully antedate any ad- mission of any freeman, such mayor, &c. shall forfeit 500/. to him who shall sue. The books and papers of admission of freemen to be open for inspection upon demand of a candidate, his agent, or two freemen, upon payment of 1 5. ; and copies and minutes of the admission to be given, paying reasonabl}' for writing the same, and the books to be produced, if demanded, at every election, on penalty of 100/., to be recovered by action, &c. with full costs. The prosecution to be com- menced within one year. That the returning officer shall read this act at the time of election, where the right of election is in the whole, or in part, in freemen, as aforesaid, immediately after reading the act qf 2 Geo. 2, c. 24. By 3 Geo. 3. That no person shall vote in respect of any annuity or rent-charge issuing out of freehold lands, &c., unless a cer- tificate, on oath, shall have been entered twelve calendar months, at least, before the first day of election, with the clerk of the peace, or other public officer having the cus- tody of the records within such city, &c. 239 s. 7. Sherifls ofl'cnd- ing against this act. s. 8. Suits com- menced vvitliia 9 months. Statutes of jeo- fails allowed. Plaintiff dis- continuinsr. Limitation of this act. c 15. s. 2. Penalty of ante- dating the ad- mission to freedom. Books of ad- mission to he open for in- spection. s. 3, 4, 5. This act to be read by the re- turning officer at elections. c. 24. No person may vote in elections in right of an- nuity. 240 Uatli. And in like manner as to qualifications as shall come by descent, nianiage, &c. Oath Officer guilty of any neglect to forfeit 100/. Limitation of prosecutions. c. 10. I'ndue election. s. 2. KLF.CTION OF MEMBERS. " I, A. /). of am really and bondjidc seisecTof " an annuity [or rent-charge,] for my own use and benefit, " of the clear yearly value of 405. above all rents and " charges payable out of the same, wholly issuing out of " freehold lands, tenements, or hereditaments, belonging " to C. D. of situate, lying, and being in the " parish, [township, or place, or in the parishes, town- " ships, or places,] of E. in the county of " without any trust, agreement, matter or thing to the " contrary notwithstanding ; and I, [or the person or per- " sons under whom I claim,] was [or were] seised of " the said annuity [or rent-charge] before the first day " of That no person shall vote in respect of any annuity or rent- charge issuing out of freehold lands, &c. which shall come by descent, marriage, marriage-settlement, devise, or presentation to a benefice in a church, or promotion to an office, within twelve calendar months next before such election, unless a certificate, on oath, shall have been en- tered with the clerk of the peace, or other officer, before the first day of such election, as follows : " I, A. B. of am really and bondjide seised " of an annuity [or rent-charge,] to my own use and " benefit, of the clear yearly value of 405. above all rents " and charges payable out of the same, wholly issuing out " of freehold lands, [tenements, or hereditaments,] be- " longing to C. D. of situate, lying, and being " in the parish, [township, or place, or in the parishes, " townships, or places] of in the county of " without any trust, agreement, matter or " thing to the contrary notwithstanding ; and I became " seised of the said annuity [or rent charge] on the " day of last past, by descent | or " otherwise, as the case may happen]." That if any clerk of the peace shall be guilty of any wilful neglect or fraudulent practice, contrary to this act, he shall forfeit 100/. to the person who shall sue by action of debt, bill, &:c. That no person shall be liable to any forfeiture or penalty unless prosecution be commenced within twelve months. By 10 Geo. 3, On complaint of an undue election, a precise time is to be fixed for the considering tliereof, and the Speaker is to give notice thereof, and order attendance of peli- tioncrs, &c. But no petition is to be taken into consideration within fi)urtccn days after appointment of the committee. Poll to begin, at latest, the day after demanded. And must continue but 15 days. Return to be made at the close of the poll, or day after. unless scrutiny demanded. Regulations for making re- turns, in case of a scrutiny. ELECTION OF MEMBERS. 241 By 25 Geo. 3. For the better regulation of polls and c. 84. scrutinies, be it enacted, " That every poll demanded at any election for a county, " city, (See. shall commence on the day demanded, or on " the next day at farthest (unless it happen on a Sunday, " and then on the day after ;) and shall be duly proceeded " in from day to day, [Sundays excepted,) until the same " be finished ; but so as that no poll shall continue more " than fifteen days at most {Sundays excepted); and if such " poll continue until the Jifleeyith day, then the same shall " be finally closed, at or before the hour of three in the " afternoon of the same day ; and the returning officer " shall immediately, or on the day next after the final close " of the poll, publicly declare the names of the persons " who have the majority of votes on such poll, and shall " forthwith make a return of such persons, unless the re- " turning officer, on a scrutiny being demanded, shall " deem it necessary to grant the same ; in which case it *' shall be lawful for him so to do, and to proceed there- " upon, but so as that in all cases of a general election " every returning officer shall cause a return of a member, " &c. to be filed in the crown-office, on or before the day " on luhich such tvrit is returnable; and every other return - " ing officer acting under a precept or mandate, shall make " return at least six days before the day of the return of " the ivrit ; and so that in case of any election, and a " scrutiny being granted as aforesaid, then that a return of " a member or members shall be made within thirty days " after the close of the poll (or sooner if the same can con- " veniently be done)." " That when a scrutiny shall be granted, and there shall " be more parties than one objecting to votes, the returning " officer or officers shall decide, alternately, or by turns, " on the votes given for the different candidates who shall " be parties to such scrutiny, or against whom the same " shall be carried on." " And in order that the electors may have full time to Poll to be kept " poll, be it enacted, That all returning officers, unless pre- open 7 hours " vented by any unavoidable accident, shall, during the d^^'y- " continuance of the poll, on every day subsequent to the ^' ' " commencement of the same, cause the said poll to be " kept open for seven hours, at the least, in each day, " between eight in the morning and eight at night." The poll-book ought not to be closed until all the Closing the poll, voters present, i. e. who come in during the continuance of the poll, and offer their voices, have polled (Z»). The Q>) Simeon El. 163. R Objections to voters to be decided alter- nately. s. 2. 242 Time fixed. If poll be once fieclared. House punisli misconduct in oiHcer. Once poll closed cannot be continued. V.'itliin two days after receipt of t'le writ, procla- mation to be made of the election for county. 2.5 Geo. 3. c. 84. s. 4. %'' hich must begin between loth and 16th day after pro- clamation ; provided the usual adjourn- ment of the court take place. An oath to be taken pve- vioiii to polling, s. 5. ELECTION OF MEMBERS. poll being taken, closed, and declared, tlie returning officer must make his return of the persons duly chosen, according to the mode prescribed by the writ and statutes relating thereunto. It is usual for the returning officer to fix a particular time, at a reasonable distance, for closing the poll, which is done by consent and agreement of all parties (c). Where the poll is once declared and acknowledged, the election is complete. And any misconduct of the returning officer is punishable, and always punished by the House (d). The poll, though improperly closed by the returning officer, cannot be continued by the constable or any other person ; if it is, neither the poll nor any parol evidence can be given of votes so taken (e). " And whereas inconveniences may arise from the time " allowed by the laws now in being for proceeding to an " election of a knight or knights to serve in parliament,^r *' am/ county or shire in England or Wales, be it enacted, " Tliat immediately after the receipt of the writ, and in- " dorsing on the back thereof the day of receiving the " same, as by law required, it shall be lawful for the sheriff' " of such county or shire, and he is hereby required, within " tivo days after the receipt thereof, to cause proclamation to " be made at the place where the ensuing election ought " by law to be holden, of a special county-court to be " there holden, for the purpose of such election only, on " any day, {Sunday excepted), not later from the day of " making such declaration than the sixteenth day, nor sooner " than the tenth day ; and that he shall proceed in such " election, at such special county-court, in the same man- " ner as if the said election was to be held at a county- " court, or at an adjourned county-court, according to the " laws now in being ; provided that the usual county-court, " for all other purposes, or any adjournment made thereof, " shall take place, be held and proceeded in, by the sheriff " or his deputy, and may from time to time be further ad- " journed and proceeded in, in such and the same manner, " and at the same times and places, as if the writ for the " election of a knight or knights of the shire had not been " received." " That upon every election to be made in Great Britain, " Wales, or town oi' Derxvick'tipon-l'iveed , in all cases where " no oath or affirmation of qualification, other than the (c) Simeon Elect. 163. (./) lb. (e) lb. I Doug. 191. ELECTION OF MEMBERS. ■ oaths or affirmations against bribery, or of allegiance, supremacy and abjuration, can now by law be required, every person claiming to give his vote at the said election shall, (if required) before he is admitted to poll, take the oath (or affirmation) following : " I do swear, [or, being a Quaker, do affirm], that my Oath. " name is A. B. and that I am [specifying " the addition, profession or trade of such person], and " that the place of my abode is at in the county " of [and if it is a town consisting of more streets " than one, specifying what street], and that I have not " before polled at this election ; and that I verily believe " myself to be of the full age of twenty-one years." Which oath, &c. the returning officer, &c. is authorized to administer." 243 " That upon every election it shall be lawful for the re- " turning officer, if he see cause, during the continuance " of any scrutiny granted, to administer an oath to any " person consenting to take the same, touching the right of " any person having voted at such election, or other matter " material towards carrying on such scrutiny." " That at every election for any city, &c. every person " whom the returning officer shall retain as a clerk in " taking the poll, shall be sworn by such returning officer " truly and indifferently to take the said poll, and to set " down the name of each voter, and his addition, profes- " sion, or trade, and the place of his abode, and for whom " he shall poll, and to poll no person who is not sworn, or " put to his affirmation, where, by this or any other statute, " any oath or affirmation now is or hereafter shall be re- " quired ; which oath of every such poll clerk the said " returning officer is required to administer." " That if any person, in taking any oath or affirmation, " shall commit wilful perjury, and be convicted ; or if any " person shall unlawfully procure or suborn any other " person to take any such oath, &c. whereby he or she " shall commit such wilful perjury, and shall be convicted, " he shall incur such pains and penalties as are inflicted in " and by the acts of 5 Eliz. and 2 Geo. 2." " Provided that nothing shall extend to alter or regu- " late the mode or time of proceeding at any election of " any member for any place where particular regulations " touching the duration of polls and scjutinies are specially " enacted, but that every such election shall be begun and " carried on in the same manner as if this act had not been " made." R 2 Returning officers may administer oaths during a scrutiny. s, 6. Poll clerks to take an oath for the faithful dis« charge of their duty. s. 7. Persons taking or suborning others to take, a false oath. s. 8. Not to extend to places where parti- cular legula- tions have been enacted by statute, s, 9. 244 When returns have not been duly made a select com- mittee may be appointed con- formable to 10 Geo. 3. c. 16, and 11 Geo. 3. c. 44. Notice of the meeting of com- mittees to be given to parties. s. 10. Returning otHcer notlound. s. 12. Returning officers liable to prosecutioa, s. 13. Returning officers may be sued for neglecting to return persons duly elected, s. 14. Actions to be commenced within one year after the offence, s. 15. Poll may be adjourned from ^^ inchester to Newport in the Isle of Wight, &c. s. 10. ELECTION OF MEMBERS. " Tliat if, upon any writ, no return shall be made to the " same o« or before the day on which such ivrit is made " returnable, or if a writ shall have been issued, and no " return shall be made to the same within Jifty-ttvo days " after the day on tvhich such xvrit bears date ; or if " the return made shall not be a return of a member or " members, according to the requisition, but contain special " matters only, it shall be lawful for any persons aggrieved " to petition the House of Commons ; and on such petition, " a day and hour ehall be appointed for taking the same " into consideration, and notice in writing shall be forth- " with given by the Speaker to the petitioners, and to the " returning officer, accompanied with an order to attend " the House, and a select committee shall be appointed, who " are to determine whether any, and which, of the persons " ought to have been returned, or whether a new writ ought " to issue ; which determination shall be final." " When returning officers cannot be found, or do not *' appear at committees, other persons may be appointed to " appear in their stead ; and where more than one petition " is presented, the House to determine whether the return- " ing officer is to strike off from the list of members drawn " by lot." " That if any sheriff, &c. for any county, city, &c. shall " wilfully offend against this act, he shall be liable to be " prosecuted by information or indictment in the King's " Bench, &c." or " That if any sheriff shall wilfully delay, or refuse to " return any person who ought to be returned, such person " may, in case it shall have been determined by a select " committee that such person was entitled to have been " returned, sue the sheriff,havingwilfully delayed, neglected, " or refused duly to make such return, and every or any of " them, at his election, in any of His Majesty's courts of " record at Westminster, or the Court of Session in Scotland, " and recover double damages, with full costs." " Provided that every indictment, information, or action " shall be found, filed, or commenced within one year after " commission of the fact, or within 5/0; months after the con- " elusion of any ^proceedings in the House of Commons re- " lating to such election." " Provided always, that it shall be lawful for the sheriff " of Southampton, after any poll for the county shall have " closed at Winchester, and which shall always be within " the space o^ffteen days at the most, in the manner above " required, to adjourn the poll to Newport in the Isle of ELECTION OF MEMBERS. 245 " Wight, in case the same shall be required, so that every " such adjourned poll shall commence within Jour days '■'■from the close of the poll at Winchester, and shall not " continue longer than three days at most." The 28 Geo. 3. respects petitioners complaining of c 52. undue elections or returns, and the manner of proceed- ing on such petitions. By the 33 Geo. 3, the proclamation at the place of ^. (j.i_ election must be made between eight in the forenoon and four in the afternoon, from the 25th of October to the 25th of March, and between the hours of eight in the morning and six in the afternoon, from the 25th of March to the 25th of October, both inclusive. By the 34 Geo. 3, the returning officer, at the request c. 73. s. i. of the candidates, may appoint two or more persons to administer to the electors the oaths of allegiance, supre- macy, the declarations of fidelity, the oath of abj uration, and the declaration or affirmation of the effisct thereof; and by the 42 Geo. 3, persons so appointed may admi- c. 62. nister all the oaths and declarations required to be taken by the electors. By the 34 Geo. 3, the expenses incurred by returning c. 73. s. 6. officers are to be defrayed by the candidates (/). By the 43 Geo. 3, so much of the 42 Geo. 3. c. 62, as c. 74. respects the bribery oath is repealed ; and the oath, if required, shall be taken at the poll, and immediately before the freeholder is admitted to poll, in the manner prescribed by the 2 Geo. 2. c 24. Election for London if a Poll be demanded. For regulating elections for London, the 11 Geo. 1. enacts. That upon every election of a citizen or citizens to serve for the said city of London in parliament, &c. the presiding officers shall, in case a poll be demanded, &c. appoint a convenient number of clerks to take the same ; which clerks shall take the said poll in the presence of the presiding officers, and be sworn by them truly and indifferently to take the same, and to set down the name of each voter, and his place of residence or abode, and for whom he shall poll, and to poll no person who shall not be sworn, or, being a Quaker, shall not affirm, according to the direction of (/) 1 Camp. N. P. R. 218. r3 c. 18. s. 1. On all elections by the livery- men, &c. pre- siding officer to appoint clerks to lake the poll, &c. None to be polled who is not sworn. 246 Liverymen's oath at elec- tions. On refusal to swear, poll to be rejected, s. 1. TheoathlG.l. c.l 3. to be taken, if required. Presiding officer to administer the oaths on penalty of 60 1. Penalty on falsely taking the oaths, or suborning. s. 3. Presiding offi- cer how to act if a poll be demanded. When the poll to be finished, &c. ELECTION OF MEMBERS. this act ; and every person, before he is admitted to poll, shall take the oath following : " You do swear that you are a freeman of London, " and a liveryman of the company of and have " so been for the space of twelve calendar months ; and •< that the place of your abode is at <' in and that you have not polled at this " election. So help you God." And if any person shall refuse or neglect to take the oaths hereby appointed to be taken, then the poll or vote of such person or persons so neglecting, &c. shall be void. That at all times, upon every election, every person having a right to vote or poll, before he be admitted to vote or poll thereat, shall (if required) first take the oaths in and by an act made in the first year of His Majesty's reign, intituled, " An act for the further security of His " Majesty's person and government, and the succession of " the crown,'' &c., appointed to be taken, or, being one of the people called Quakers, shall, if required, affirm the effect thei'eof ; and if any person or persons shall refuse to take the said oaths by the said act appointed to be taken, or affirm, that then the poll or vote of such person shall be void ; and the presiding officers are authorized to admi- nister the oaths and affirmations ; and if any such presiding officer shall refuse or offend in the premises contrary to this act, every such officer shall forfeit 6o/., besides costs of suit. That if any person shall wilfully, falsely and corruptly take the said oaths or affirmations, and be convicted by indictment, &c., or if any person shall corruptly procure or suborn any other person to take the said oaths or affirma- tions, whereby he shall wilfully and falsely take the said oaths or affirmations, and the person so procuring or suborn- ing shall be convicted, every person so offending shall incur and suffer such penalties, &c. as persons convicted of wilful and conaipt perjury at the common law are liable unto. And, to the intent that the poll be duly taken, be it fur- ther enacted, that if a poll be demanded, the presiding oflfiicer shall begin such poll the day the same shall be de- manded, or the next day following at farthest, unless the same shall happen on a Sunday, and then on the next day after, and shall duly proceed thereon from day to day (Su?idai/s excepted) until such poll be finished ; and shall finish the poll at elections by the liverymen within seven days, exclusive of Sundays ; and the poll at the wardmote within three days, exclusive of Sundays, after the com- ELECTION OF MEMBERS. mencing the same respectively ; and shall, upon adjourning the poll on each day, at all and every the elections afore- said, seal up the poll -books with the seals, and in the presence of such of the respective candidates, or persons deputed by them, as shall desire the same, and the said poll- books shall not be opened again, but at the time and place of meeting, in pursuance of such adjournment : and after the said poll is finished, the said poll -books, being sealed as aforesaid, shall, within two daijs after, be publicly opened at the place of election, and truly cast up, and within tvco days after the numbers of the votes shall be declared at the place of election by the officer ; and if a scrutiny shall, upon such declaration made, be demanded, the same shall be granted and proceeded upon ; and the respective candidates shall immediately nominate to the presiding officer any number of persons qualified to vote at such election not exceeding six, to be scrutineers for and on behalf of the candidate or candidates on each side, to whom the presiding officer shall, within six days after such scrutiny demanded, upon request and at the charge of the candidates, &c., deliver a true copy, signed by such officer, of the poll taken ; and all scrutinies taken to be made by the liverymen of the said city shall begin within ten daijs after the delivery of the copies of the said polls, and be proceeded on day by day {Sundays excepted), and shall be finished tmthin Jlftcen days after the commence- ment of such scrutiny ; and thereupon the presiding officer shall, within four days after the finishing such scrutiny, publicly declare which of the candidates is or are duly elected, and the number of legal votes for each candidate appearing to him or them upon such scrutiny ; and on the election of any officer at the respective wardmotes of the said city, if a scrutiny be demanded, the candidates, &c. shall, within ten days next after the receipt of the copy of the polls, deliver to the presiding officer the names in writing of the persons polled, against whose votes they shall object, with objections against each respective name ; and the presiding officer shall, within three days then next following, at the request and charges of any candidate or scrutineers, deliver to him or them one or more true copy or copies (signed) of the paper containing such names and objections ; and the said presiding officer, within, ten days then next following, (exclusive of Sundays), after having fully heard such of the said candidates as shall desire the same, or some person appointed by him or them, touching such objections, shall, at the place of election, openly de- clare which of the said candidates is or are duly elected, and the number of legal votes for each candidate appear - R 4 247 If a scrutiny be demanded. Scrutineers not to exceed six on each side. Scrutinies when to begin, and when to be finished on elec- tion by livery- men. Scmtinies on elections at wardmotes. True copies of the objections against the pollers. 248 Penalty 200 1. with costs. s. 4. A true list to be given of the voters disal- lowed. s. 5. Mayor to issue precepts to the companies to bring in lists. s. 6. No persons have a right to vote who have not been upon the livery 12 calendar months, &c. and who within two years have been discharged from taxes. s. 14. Forfeitures how applied. s. 25. C.54. When election is closed. ELECTION OF MEMBERS. ing to him or them upon such scrutiny ; and if the said presiding officer shall offend, he shall forfeit 200/., with full costs of suit, over and above all other penalties inflicted by any other act. That after any election made and scrutiny taken, the presiding officer shall deliver, under his hand, a true list of the voters disallowed, to any of the candidates who shall, upon the final declaration of the election, demand the same, tvithin six days after such demand made, such candidate paying for the same : provided always, that no such list as is directed shall be admitted to be given in evidence on any action or occasion whatsoever. That the mayor of the city of London for the time being, upon request to him made by any candidate, &c. at any election of a citizen to serve in parliament for the said city, or of a mayor, or any other officer or officers to be chosen by the liverymen thereof, where a scrutiny is demanded and granted, shall issue his precepts as has been usual, re- quiring the masters and wardens of the livery companies of the said city respectively to cause their clerks forthwith to return to liim two true lists of all the liverymen of their re- spective companies ; and the said clerks shall return such their respective lists upon oath within three days after the receipt of any such precepts ; one of which lists so returned the said mayor shall forthwith deliver to the candidate or can- didates on each side at such election, or to his or their agent or agents. No person shall have a right to vote at any election by the liverymen who have not been upon the livery twelve calendar months, and who shall not have paid their livery fines, or who shall have received such fines back again in part, or in all ; or shall have had any allowance in respect thereof; and no person shall have a right to vote who have within two years next before requested to be, and have been, discharged from paying taxes, or have, within that time, received alms. And all the forfeitures herein shall be distributed, one third to the king, one third to the cham- berlain, for the use of the city, and the remaining third to the prosecutor, who will sue within six calendar months after incurred. For elections of citizens for Coventry, see 21 Geo. 3. Of the Return. The words of the writ, so far as they relate to the return, are, " And the names of the knights, citizens and burgesses ** so to be elected, you cause to be inserted in certain in- ELECTION OF MEMBERS. 249 " dentures, to be thereupon made between you and those " who shall be present at such election, and them at the " day and place aforesaid you cause to come, &c. ; and *' that the election in your full county so made, distinctly ** and openly, under your seal and the seals of those who " shall be present at such election, you do certify to us, " in our Chancery, at the day and place aforesaid, without " delay, remitting to us one part of the aforesaid inden- <* tures annexed, with these presents, together with this " writ." The certificate of the election is required to be the same both in county and borough elections, that is, by indenture, under the seals of the electors, and of the returning officer, who seals a counterpart thereof. This practice has been constantly complied with, and seems analogous to proceedings of inquisition before the sheriff and coroner, who return their inquests under seal. Any other mode of making the return has been held bad, but amendable. The indenture certifying the election, being duly signed and sealed, must be annexed to the writ, and returned, together with it, to the clerk of the crown in Chancery; and where there is occasion to make another return, the order is, that the return annexed shall be taken off the file, and the indenture of return, made by the legal officer, be annexed to the writ in its stead. With respect to false returns, vide 23 H. 6, c. 14; 7 &- 8 TT. 3, c. 7, s. 1, made perpetual by 12 Ann. c. 15, s. 1., 1 Wils. 125 ; and double returns, see 7 & 8 W. 3, c. 7 ; and if no return made, see 25 Geo. 3, c. 84, s. 10. A false or double return may be amended at the bar of the House (g). 1 J. P. esq. sheriff of the county aforesaid, Precept for the to wit. J having received His Majesty's writ, under election ot two the great seal of Great Britain, for the electing two knights ^^J^ inVa^i-lia- to serve for this county in the parliament to be holden at the mgnt at the city of Westminster, on the day of next, do, general election in obedience to the said writ, and of the several statutes for knights of in that case made, hereby proclaim and give public notice, ^'^^ ^""^' that, at a special county-court, which will be held at in and for the said county, on the day of this instant , at ten of the clock in the forenoon, pursuant to the statute in that case made and provided, 1 shall proceed to such election, when and where all per- (g) Simeon, 184. 250 The indenture. Indenlure for returning one knight of the shire for the county in the room of one who has been called up to the House of Lords. ELECTION OF MEMBERS. sons interested therein will be heard, and are to give their attendance accordingly. Dated the day of 18 J, P. esq. sheriff. This indenture, made in full county, at a special county- court, for the couty of held at in the said county, pursuant to the statute in that behalf made, on the day of in the year of our lord between J. P. sheriff of the county aforesaid, of the one part, and [here put twenty or thirty of the most respectable names], with many others, freeholders of the said county of of the other part, witnesseth, that by virtue of His Majesty's writ under the great seal of Great Britain to the said sheriff directed, and hereunto annexed, for the electing of two knights of the aforesaid county to serve for the said county in His Majesty's parliament, to be holden at the city of Westminster, on the day of next : We therefore, the said sheriff, and the said [twenty or thirty other names as before mentioned], and many other freeholders of the said county, (the major part of the whole county aforesaid) being this present day, at aforesaid, sworn and examined, according to the force, form and effect of the said writ, and of divers sta- tutes in that case lately made and provided, and according to the directions of the said writ, have (proclamation of the premises being first made) elected G. H. of in the county of esq. and J. K. of in the said county, esq. the most fit and discreet knights of the shire of the aforesaid county, to attend at the said parlia- ment ; giving and granting to the said knights full power and sufficient authority, for themselves and the common- alty of the aforesaid county, to do and consent to those things which in His Majesty's said parliament, by the common-council of the realm (by the blessing of God) shall happen to be ordained upon the affairs in the said writ specified. In testimony whereof, as well the hand and seal of the office of the said sheriff, as also the hand and seal of the other parties above-named, are hereunto interchange- ably ^et, the day and year first above-written. J. P. esq. sheriff. A. B. G. H. N. 0. &c. &c. Tliis indenture, made in full county, at a special county- court for the county of held at in the said county, pursuant to the statute, on the day of in the year of the reign, &c. and in the year of our Lord between sheriff of the county aforesaid, of the one part, and [here put twenty or thirty names], with many others, freeholders of the said ELECTION OF MEMBERS. 251 county, of the other part, witnesseth, that by virtue of His Majesty's writ under the great seal of Great Britain to the said sheriff directed, and hereunto annexed, for the electing ^in the place of esq. who was lately chosen one of the knights for the said county for His Ma- jesty's present parliament, but is now baron of in the said county, and one of the peers of the kingdom of the upper house of the said parliament, and for that reason is removed from the lower house of the said parliament) of one other fit and discreet knight of the aforesaid county, to serve for the said county in His Ma- jesty's said parliament, which, at the time of the issuing the said WTit, was holden at His Majesty's city of West- minster : We therefore, the said sheriff, and the said [here put the names aforesaid], and many others, freeholders of the said county, (the major part of the whole county aforesaid), being this present day, at aforesaid, sworn and examined, according to the force, form and effect of the said writ, and of divers statutes in that case lately made and provided, and according to the directions of the said writ, have (proclamation of the premises being first made) elected sir bart. of a fit and discreet knight of the aforesaid county, to attend at the said parliament ; giving and granting to the said knight full power and sufficient authority, for himself and the commonalty of the aforesaid county, to do and consent to those things which in His Majesty's parliament aforesaid, by the common-council of the realm (by the blessing of God) shall happen to be ordained upon the affairs in the said writ specified. In testimony whereof, as well the hand and seal of the office of the said sheriff, as also the hands and seals of the other parties above-named, are hereunto interchangeably set, the day and year first above written. J. B. esq. sheriff. A.B. G. H. &c. &c. , to wit, G. K. esq. sheriff of the county afore- said, to the bailiff of the borough of in the said Prgcept and county, greeting : Know ye, that I have received a certain return of mem- writ of our lord the king to me directed, the tenor whereof bers to serve in followeth in these words; to wit, [William the fourth, &c. P'jl;^''™^};* *^°^ set forth the writ verbatim], and because the execution of dire°ct°e'ifto the the said writ, as to the borough of belongs to bailiff. you : therefore, by virtue of the said writ, I require you, that you forthwith cause one burgess to be elected for the said borough, according to tlie command of the said writ ; and how this my warrant shall be executed, you shall make known to me immediately after the said elec- tion made, so that I may certify the same, together with 252 Bailiff's in- dorsement Iheieon. Return of the precept. Ixeturn to the writ. Indenture. The persons must be free citizens or bur- gesses of the town having due election. ELECTION OF MEMBERS. the said writ and this precept, to our lord the king in his Chancery forthwith. Given under the seal of my office the day of 18 By the same sheriff. (Indorsed). The day of at o'clock : Received this precept from the under-sheriff of the county of W. P. bailiff of the said borough. Proclamation made on the day of 18 at the usual place, within the borough of R. within men- tioned, to proceed to election there on the day of at 1 1 of the clock in the forenoon of the same day. W, P. bailiff. The execution of this precept appears in a certain sche- dule hereunto annexed. W. P. bailiff. The execution of this writ appears in certain schedules hereunto annexed. This indenture, made at the borough of in the county of the day of in the year of the reign of, &c, and in year of our Lord 18 ; between G. K. esq. sheriff of the said county, of the one part, and W. P. bailiff of the said borough, and C. K. esq. and L. M. esq., G. H. esq., and T. L. esq., and others, burgesses of the aforesaid borough, by virtue of a certain precept, under the seal of the said sheriff made, and directed to the said bailiff, bearing date the day of instant, have freely and indifferently elected A. K. esq. and G. N. esq. burgesses of the borough afore- said, the most sufficient and discreet to be at the parlia- ment of our said lord the king, to be holden at Westmin- ster, the day of next ensuing, which said A. K. and G. N. have full and sufficient power for them the said electors, for themselves and the commonalty of the said borough, to do and consent to those things which then and there, by the common-council of the kingdom of Great Britain (by the blessing of God) shall happen to be ordained upon the affairs in the said parliament to be treated of. In witness whereof, to one part of these pre- sents remaining with the said sheriff, as well the said bailiff as the said burgesses have set their hands and seals, and to the other part remaining with the said bailiff and bur- gesses, the said sheiiff hath set his seal, the day and year first above written. + W. B. bailiff, and twenty-seven others. ELECTION OF MEMBERS. 1 C. B. esq. sheriff of the county aforesaid, To to wit. J the mayor of the city of R. greeting. By vir- tue of His Majesty's writ under the great seal of Great Britain to me directed, for the electing of two citizens to serve for the city of R. aforesaid in a certain parliament, ordered by His Majesty to be holden at His Majesty's city of Westminster, on the day of next ensuing. These are to will and require you, that (procla- mation within the said city of the day and place of election being first made) you cause freely and indifferently to be elected two citizens of the most sufficient and discreet, by those who at such proclamation shall be present, according to the form of the statutes in that case made and provided ; and the names of those citizens so to be elected (whether they be present or absent) you cause to be inserted in cer- tain indentures, to be thereupon made, between me and those who shall be present at such, election : and then, at the day and place aforesaid, that you cause to come, in such manner that the said citizens, for themselves and the commonalty of the said city, may have from them full and sufficient power to do and consent to those things which then and there, by the common-council of the kingdom, (by the blessing of God) shall happen to be ordained ; but you are not to elect me, or any other sheriff of this king- dom ; and the said election you are forthwith to certify to me, sending to me one part of the said indentures annexed to this precept, that I may certify the same to His Majesty, in his Chancery: hereof you are not to fail. Given under the seal of my office, the day of in the year of the reign of king William the Fourth, and in the year of our Lord 1 8 By the same sheriff. Received of the within-named sheriff this precept, by 253 Precept to the mayor of the city of R. to return two members. the hands of Mr. A. B. on i8 at noon, by me. The execution of this schedule hereunto annexed the day of of the clock in the fore- J. J. mayor of R. precept appears in a certain /. J. mayor of R. Tills indenture made, &c. between, &c. witnesseth, that by virtue of a warrant to me directed, from G. B. esq. sheriff of the county of R. for the electing and choosing two citizens, men of good understanding, wit, knowledge, and discretion, for causes concerning the weal public of the realm, to be at His Majesty's high court of parliament, to be holden at his city of Westminster, on the day of next ensuing ; I, J. J. mayor of the city of R., with the whole assent and consent of the rest of Return of pre- cept to the sheriff. Indenture of election by a mayor. 254 By the con- stables and burghers. Precept from the sheriff of Middlesex to the bailiff of Westminster, for the election of one citizen for the said city. ELECTION OF MEMBERS. the Citizens there, have made choice and election of G. H. of, &c. esq. and J. K. of, &c. esq. to be citizens for our said city of R. to attend at the said parliament, according to the tenor of the said warrant to me directed in that be- half. In witness whereof, I have to these presents set our common seal of our said city, the day and year first above written. This indenture made, &c. between H. A. esq. high sheriff of the county of of the one part, and H. T. and W. S. junior, and constables of the borough and parish of A. in the said county of R., and F. L. esq. R. C. gent, (with forty others named), and others the burghers and inhabitants of the said borough of ^., of the other part, witnesseth, that by virtue of a precept to the said constables directed, and delivered by the said sheriff, under the seal of his office in that behalf, they the said constables, burghers and inhabitants have, of their full consent, duly chosen Sir J. W. bart. and 5. M. esq. two burgesses, fit and discreet men to serve for the said borough in the parliament to be holden at His Majesty's city of Westminster, the day of now next ensuing, according to the tenor of the said precept, giving, and by these presents granting, to the said two burgesses so chosen, full power, for themselves and the commonalty of the said borough, to do and consent as in the said pre- cept is specified. In witness whereof, to one part of these precepts remaining with the said sheriff, they the said con- stables, burghers and inhabitants have hereunto set their hands and seals, and to the other part remaining with the said constables, the said sheriff hath set the seal of his office, the day and year first above written. Subscribed by the said constables and forty- seven others. Middlesex, to wit. Sir C] A. knight, and sir R. G. knight, sheriff of the said county, to the bailiff of the liberty of the dean and chapter of the collegiate church of St. Peter at Westminster, in the said comity, greeting. Know, that I have received a certain writ of our lord the king, to me directed, the tenor whereof followeth [here state the writ 'verbatim'] ; and because the execution of the said writ belongs to you, therefore, by virtue of the said writ, I require you, that you forthwith cause a citizen to be elected for the said city, in the place of the said P. W. according to the command of the said writ : and how this my warrant shall be executed you shall make known to me immediately after the said election made, so that I may certify the same, together with the said writ, and this ELECTION OF MEMBERS. 255 precept return to our said lord the king in his Chancery forthwith. Hereof fail not : This is your warrant, given under the seal of my office, this day of i8 By the same sheriff. The execution of this writ appears in a certain schedule Return of hereunto annexed. J. C. Esq., bailiff. precept. This indenture, make in the liberty of Westminster, in the The indenture. county of Middlesex, the day of in the year of the reign of, &c., between Sir C. A., knight, and Sir R. G., knight, sheriff of the county of Middlesex, of the one part, and /. C, esq., bailiff of the liberty of the dean and chapter of the collegiate church of St. Peter, Westminster, in the said county. Sir /. C, ba- ronet. Sir C. D., knight of the most honourable order of the Bath, the honourable W. L., G. S., F. R., F. H. and many others, citizens, burgesses and inhabitants of the city, town and borough of Westminster, of the other part, tvit" nesseth, that, by a certain precept, directed from the said sheriff to the bailiff, and sewed to this indenture, (procla- mation in the said precept first mentioned, and of the day and place, as in the said precept is directed, first being made,) the citizens who were present at the said procla- mation having freely and indifferently, according to the form of ihe statute in that case made and provided, and according to the tenor and effect of the aforesaid precept, and of the writ in the said precept recited, chosen one citizen of the most discreet and sufficient of the city and liberty aforesaid, (that is to say,) the honourable E. C, esq. ; to which said E. C. so elected, the aforesaid citizens have given and granted full and sufficient power, for them- selves and the commonalty of the city, town, borough and liberty aforesaid, to do and consent to those things which, at the said parliament, by the common-council of the said kingdom (with God's assistance) shall happen to be or- dained upon the affairs in the said precept specified, ac- cording to the form and effect of the said precept. In toit- ness whereof, as well the said sheriff as the aforesaid bailiff, citizens, burgesses and inhabitants of the city, town, bo- rough and liberty aforesaid, to these indentures their seals have interchangeably put, the day and year first above men- tioned. This indenture made, &c. witnesseth, that, by virtue of indenture for a warrant to me directed from Sir A. B., knight, sheriff of return of citizens the county of Cambridge, for the electing and choosing ^^^ burgesses, of two burgesses, men of good understanding, wit, know- ^^g" ledge and discretion, for causes concerning the weal pub- 256 c. 13. s. 4. Cliester, two knights and two burgesses for the city. c. 23. s. r. Sheriff to cause seven tables to be made at the cost of the candidates. c. 9. Durham, two knights, two for the city. For the county to be chosen by fieeholders. City to be chosen by the mayor, &c. 18 Geo. 2. c. 18. s, 2. c. 7. s. 1. Cinque Ports. ELECTION OF MEMBERS. lie Oi* the realm, to be at His Majesty's high court of par- liament, to be holden at JVestmmster, the day of next coming, 1., A. B., mayor of the borough or town of Cambridge, with the whole assent and consent of the rest of the burgesses there, have made choice and elec- tion of C. D. of esq., and of/. D. of esq., to be burgesses for our said borough of Cambridge, to attend at the said 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. By 34 8c 35 H. 8, " The county palatine of Chester shall have two knights, and likewise two citizens, to be burgesses for the city of Chester, to be chosen by process to be awarded by the Chancellor of Ey^gland unto the chamberlain of Chester, his lieutenant or deputy ; and likewise process to be made under like form as is used within the county-palatine of Lancaster, or any other county and city where shall be knights and burgesses of parliament. And vide stat. i3 Geo. 2, c. i8, 5. 12. By 10 Ann. The sheriff of Chester, against every election of knights of the shire, shall cause seven tables, and no more, to be made at the cost of the candidates, within the shire-hall of the county, for taking the poll, viz. two at the upper end, two at each side, and one at the lower end of the hall. By 25 Car. 2, The county-palatine oi Durham may have two knights for the county, and the city of Durham two citizens, to be burgesses for the same city, to serve in parliament, to be elected by writ awarded to the lo7-d Bishop of Durham, or his Chancellor of the county, and precept thereupon to the bishop, or his temporal chancellor to the sheriff: the elec- tions of knights to be made by the greater number of free- holders, as in other counties, and the election of burgesses for the city of Durham to be made by the major part of the mayor, aldermen and freemen ; which knights and burgesses shall be returned by the sheriff into the Chancery, upon the like pains as the sheriff of any other county. By 2 Will. Sr M. St. 1. Whereas the lord wardens of the Cinque Ports have claimed, as of right, a power of nominating to each of the Cinque Ports, the two ancient towns and their members, one person whom they ought to elect as a baron or member of parliament, contrary to the ancient usage and freedom 257 s. 2. Two knights to be chosen for Monmouthshire; one burgess for the borough. 27 H. 8. c. 26. s. 28. One for shire of Brecknock, &c. and every other shire. s. 29. Ail the king's subjects iu Wales, shall find 20. s. 110. r,Lt^CTION OF MEMBERS. of elections, " It is declared, that all such nominations are *' contrary to law, and void." For all parliaments two knights shall be chosen for the shire of Monmouth, and one burgess for the borough of Monmouth ; the burgesses fees to be levied as well within the borough of Monmouth, as within all other ancient boroughs within the said shire. One for every of the shires of Brecknock, Radnor, Montgomery and Denbigh, and for every other shire within Wales ; and for every borough being a shire town, except Merioneth, one burgess ; fees to be levied as well of the shire towns as of all other ancient boroughs within shires. All the king's subjects in Wales shall find at all par- liaments knights, citizens, and burgesses. knights, &c. 34 & 35 H. 8. c The town of Haverfordwest one burgess at every par- Haverfordwest. liament. '' ^^^• The sheriii, in the next county-court after deliverance of the writs for levying the knights' wages, shall make procla- mation that the coroners, and every chief constable of the peace, and the bailiffs of every hundred, and all others which will be at the assessing of the wages, shall be at the next county ; and the sheriffs, under-sheriff, coroner or bailiffs, shall be there at the same time, on pain of 405., at which time the sheriff, in presence of them and of the suitors in full county, shall assess every hundred to pay a certain sum for the wages, so that the whole sum of all the hundreds do not exceed the sum due ; and after that, in same county, shall assess every village to a certain sum, so that the whole of the towns within any hundred do not exceed the sum assessed upon the hundred. And the sheriffs, nor none other officer, shall levy more of any vil- lage than what thereunto they were assessed ; and if any do assess any hundred or village otherwise than aforesaid, forfeit lol. to the king, and to any man that will sue 10/. The sheriffs shall levy the money assessed upon the villages as hastily as they well may, and the same shall deliver to the knights, upon the said pains. The 34 & 35 H. 8. gives power to every of the twelve shires of Wales, and in the county of Monmouth, To levy the knights' fees and wages, and to pay the same within two months after the writ delivered, and in default to forfeit 20 Z., one moiety to the king, and the other to him who sues. If default be for longer than two months, to forfeit 20/. every month, s For assessing and levying of knights' wages, sheriffs to make proclamation. 23 H. 6. c. 10. c. 13. s. 1. For payment of wages in Wales. 258 ]\Iayor, &c. to levy and pay wages to bur- gesses. 3,2. Rates for the burgesses in AV'^ales. s. 4. Former wages allowed. Piesent wages. Cambiidgeshire excused. ELECTION OF MEMBERS. Every mayor, bailiff, and other head officers of cities and towns in the said twelve shires, and Monmoutli, within like space of two months after receipt of writ, shall levy and pay the wages to their burgesses, under like pain. Provided two justices of the peace in every shire in Wales and Monmouth shall have power to tax every city and town for the rates that the cities and boroughs shall pay towards the burgesses within the shire, &c., which rates shall be again rated on the inhabitants of the cities and boroughs aforesaid, and mayor, &c. collect the same. It appears that in Ed. 3d's time, 4s. a day was allowed a knight of a shire, and 2 s. for a citizen or burgess (a). But now it seems 13s. AcL, and 10s. for a baron or bur- gess (5). And the sheriff may distrain the goods of the town, or any of the town, for the wages of a knight, or the cattle (c), and may sell the same. The 34 H. 8. c. 24, excuses the inhabitants of the county of Cambridge ; and the manor of J3urlewas in Madhujly is charged with lOZ. yearly for ever, for the waoes of the knishts. Negligent return. .5 R. 2. c. 4. 10 & 11 W. 3. 11 II. 4. c. 1. c. 15. Traverse inquest. G li. 6. c. 4. Returns made contrary to the other statute. 23 H. 6. c. 15. As to the Return. If the sheriff be negligent in making return he shall be amerced, or punished. If a sheriff make not a return on or before the parlia- ment is to meet, or in convenient time, not exceeding 14 dags after election on a new writ, he shall forfeit 500 L, a moiety to the king and a moiety to the informer. False Return. Justices of assize may inquire of returns made to writs of parliament, and if found by inquest that the return is contrary to 7 H. 4. the sheriff shall incur 100/. fine to the king. But the sheriff may traverse such inquest of office before the justices of assize. If any sheriff make a return contrary to 23 H. 6. or other statutes of election, &c. he shall incur the penalty of 8 H. 6. 7, and pay to every person chosen and not duly returned, 100 Z. with costs, by action of debt against the sheriff, his executors, &c., by the party grieved, if he sue (■a) 4 Inst. 16. (h) Dalt. 344. (r) Bro. Distr. 9.5. Dalt. 345. ET,F.CTION OF MEMBERS. 259 in three months after the beginning of the pavhament, or Suit to be in ill his default, by any that will sue. "*^*' '"°" ^^' And if any mayor, &c., return to the sheriff any not Penalties on dull/ chosen, he shall forfeit 40 L to the king, and 40/. to '^'^^y^ f"-' false every person chosen and not returned, to be recovered zit sujnrt ; and if any returned be put out, and another be put in his place, he that is put in his place, if he take upon himself to be knight, citizen, or burgess, forfeits 100/. to tire king, and 100 /. to him put out, to be recovered, &,c. By 7 & 8 TF". 3. c. 7. continued by 12 & 13 W. 3. c. 3. s. 5, and afterwards by 12 A^in. sess. 1. c. 15, made per- petual, a false return is against law, and any making or procuring it, may be sued by the party grieved, who shall recover double damages, with costs. All contracts, &c., to procure a return are void, and he who makes them forfeits 300 /., one third to the king, a third to the poor, and one third to the informer ; and a return contrary to the last determination of the House is n false return. Any officer who wilfully, maliciously and falsely returns more persons than he ought, forfeits double damages, with costs, to the party grieved, who may sue the officer, or hira who procures such return, at his election. The House expects the sheriff to make a return accord- ing to law, and will not give him directions in case of difficulty ; though the mayor to whom the precept was directed dies, and yet the burgesses go to election, and part return one by one in due turn, and the other part return another by another in due turn (d). Remedy for false Return, &c. If a sheriff makes afalsereturn, debt lies for the 100/. Debt lies. upon 23 H.Q. c. 15(e). So an action lies upon the 7 &, 8 TF. 3. for a false So 7 & 8 w return, if the plaintiff makes his case pursuant to the c. 7. statute (jf). But an action does not lie for a false return, if it be not But if not founded upon some statute (g). Nor since the 7 &. 8 W. 3. where the return was con formable to the House of Commons (A). False return is against law ; may recover damages. Contracts to procure a return void. Return contrary to the last de- termination, a false return. Sheriff to return according to law ; House will not give directions. (d) 9 Jac. 1699. (e) Plowd, Com. 118. 130. If) Lutw. 185. Salk. 304. (g) Salk. 505. (/i) Lut. 189. founded on some statute. Nor if conform- able to House. C.7. s 2 260 Double damages for false return. Double returns. An action will lie for false or double return. Courts at West- minster are not bound by resolutions of the House. c. 84. Returns after determination by a select committee. s, 24. ELECTION OF MEMBERS. Double damages may be recovered for any false return, though there is no resolution of the House of Commons relatmg to the right of election to that place (i). It is said an action at common law does not lie for a double return (k). But Willes, C. J., said an action at common law will lie for o. false, or for a double return; for there is damnum cum injuria in both cases (Z). The courts of Westminster are not bound by resolutions of the House of Commons relating to actions at common law, for such returns ; and the party may proceed there, notwithstanding the order of the House. For any offence against 25 Geo. 3, the returning officer is made liable to prosecution by information or indict- ment ; and if he neglect or refuse duly to return any per- son who ought to be returned for any county, &c., eveiy such person, m case it shall have been detennined, by a select committee appointed, that such person was en- titled to have been returned, may sue the sheriff, &c., and shall recover double damages, with full costs. A List of the Counties, Cities, and Boroughs q/" England, in the Order in which their Representatives are called over in the House : Bedfordshire. — Bedford . Berks. — Reading ; Abingdon ; Windsor ; Walling- ford. Bucks. — Buckmgham ; Wycomb ; Aylesbury ; Mar- low ; Wendover ; Agmondesham. Cambridg( — Cambridge Un. ; Cambridge T. Cheshire. — Chester. Cornwall. — Launceston; Liskeard; Lestwithiel ; Truro ; Bodmin ; Helston ; Saltash ; East-Looe ; West-Looe ; Camelford ; Penryn ; Tregony ; Bossinney ; St. Ives ; Fowey; St. Germans ; Mitchell; Newport; St. Mawes; Callmgton. Cumberland. — Carlisle ; Cockennouth. Derby. — Derby. (?) Wynne v. Middleton, 1 Wils. 125.. (k) 2 Vent. 37. Salk. 503. 3 Lev. 29. 2 Lev. 114. (/) 1 Wils. 127 ELECTION OF MEMBERS. 201 Devon. — Ashburton ; Tiverton; Dartmouth; Oke- liampton ; Honiton ; Plymouth ; Beeralston ; Plymp- ton ; Totness ; Barnstaple ; Tavistock ; Exeter. Dorset. — Dorchester ; Lyme ; Weymouth and Mel- combe ; Bridport ; Shaftsbury ; Warehani ; Corfe-Cas- tle; Poole. Durham. — Durham. Ebor, or Yorks. — Aldborough ; Boroughbridge ; Be- verley ; Hedon ; Knaresboro' ; Malton ; Northallerton ; Pontefract ; Richmond ; Ripon ; Scarborough ; Thirsk ; York; Kingston. Essex. — Colchester ; Maiden ; Harwich. Gloucester. — Tewksbury ; Cirencester ; Gloucester. Hereford. — Hereford ; Leominster ; Weobly. Hertford. — Hertford; St. Albans. Huntingdon. — H untingdon. Kent. — Rochester; Queenborough ; Maidstone; Can- terbury. Lancashire. — Lancaster ; Preston ; Liverpool ; Wigan ; Clitheroe ; Newton. Leicester. — Leicester. Lincoln. — Stamford ; Grantham ; Boston ; Grimsby ; Lincoln. Middlesex. — Westminster ; London. Monmouth. — Monmouth. Northfolk. — Lynn ; Yarmouth ; Thetford ; Castle- Rising ; Noi-wich. Northampton. — Peterborough ; Northampton ; Brack- ley ; Higham-Ferrers. Northumberland. — Morpeth ; Newcastle-upon-Tyne ; Berwick. Nottingham. — East Retford ; Newark ; Nottingham. Oxon. — Oxford Un. ; Oxford City; Woodstock; Banbury. Rutland. Shropshire. — Shrewsbury; Ludlow; Bridgnorth; Wenlock ; Bishop's-Castle. Somerset. — Taunton ; Ivelchester ; Milborne ; Wells ; Bridgwater; Bath; Mmehead ; Bristol. s 3 2(»-2 ELECTION OF MEMBERS. Southampton, or Hants. — Winchester ; Portsmouth ; Newport ; Yarmouth ; Newtowne ; Lymmgton ; Christ- church ; Andover ; Whitchurch ; Petersfield ; Stock- bridge ; Southampton. Stafford.— ^tSiWord ; Tamworth; Newcastle; Litch- field. Suffolk. — Ipswich ; Dunwich ,• Orford ; Aldeburgh ; S udbury ; Eye ; Bury. Surrey — Gatton ; Haslemere ; Blechingly ; Reigate ; Guildford ; Southwark. Sussex. — Horsham ; Bramber ; Shoreham; Midhurst; E. Grinstead; Steining; Arundell; Lewes; Chichester; Seaford. Warwick. — Warwick ; Coventry. Westmorland. — Appleby. Worcester. — Evesham ; Droitwich ; Bewdley ; Wor- cester. Wilts. — New Sarum ; Devizes ; Marlborough ; Chip- penham ; Calne ; Malmesbury ; Cricklade ; Hindon ; Old Sarum ; Heytesbury ; Westbury ; Wootton Bassett; Ludgershall ; Wilton ; Downton ; Great Bedwin. Yorkshire, see Ehor. The Cinque Ports, Barons of. — Hastings ; Winchel- sey; Rye; Romney; Dover; Sandwich; Hithe. For Wales. Anglesey - Beaumaris Brecknock Brecknock, borough - Caermarthen Caermarthen, borough Caernarvon Caernarvon, borough - Cardigan - - - Cardigan, borough Denbigh - - - Denbigh, borough Flint Flint, borough - Glamorgan Cardiff, borough Merionethshire - Montgomery Montgomery, borough Pembi'oke Pembroke, borough - Haverfordwest, borough Radnor _ - - New Radnor, borough JURIES. 2(>3 Juries. 'T'RIALS by jury in civil causes are of two kinds; extraordinary and ordinary. The first species of extraordinary trial by jury is that of the grand assize, instituted by Henry the Second, instead of the barbarous and unchristian custom of duel- hng. For this purpose a writ de magna assiza eligendd is directed to the sherilf (a), to return four hnights, who are to elect and choose twelve others to be joined with them, and these altogether form the grand assize, or great jury, which is to try the matter of right, and must consist of sixteen jurors (b). Another species of extraordinary juries is to try an attaint, which is a process commenced against a former jury for bringhigin a false verdict, and consists of twenty- four of the best men of the county, who are to hear and try the goodness of the former verdict : this is now dis- used, a better remedy for the parties being adopted. With regard to the ordinary trial by jury in civil cases, it is this : when the parties are at issue to the countiy, " The sheriff is commanded that he cause to come before " the king at Westminster, twelve free and lawful men of " the body of his county, by whom the truth of the matter " may be the better known, and who are neither of kin to " the plaintiff or defendant, to recognize of the truth of the " issue between the parties :" which writ is made returnable before the trial ; therefore the jury must unavoidably make a default. For which reason a compulsive process is now awarded against the jurors; in the King's Bench called a distringas, in the Common Pleas a habeas corpora jiiratorum, commanding the sheriff to distrain them by their lands and goods, or to have their bodies, that they may appear in court on the day appointed by this writ. By virtue of this writ, the sheriff issues his precept to his bailiff, to summon the jury to be on the day, and at the place therein mentioned ; which being done, the she- riff returns the writ executed to the court, with a panel annexed of the names and places of the jurors so sum- moned, on a piece of parchment. In civil causes two kinds. Grand assize, fiist species of extraordinary trial. The second, trial on attaint. Ordinary trial. Venire. Sheriff, by vir- tue of this writ, issues his pre- cept to his bailiff. (a) F. N. B. 4. {b) Finch Law, 412. s 4 1 Leon. 303. 2G4 Return ofven. and distringas. If sherift'be not indifferent, co- roner to return the jury. If exception to coroner, then elisors. Trial on crimi- nal side. Summoners are, When prisoner has pleaded, JURIES. The writ of venire and distringas, as also the hab. corp. jurat, are returned thus : The execution of this writ appears in the panel an- nexed. The answer of'/. B. Esq., Sheriff. Middlesex, '\ The names of the jury between John Denn, to wit. J plaintiff, and Richard Fenn, defendant, of a plea of debt. Hundred of O. John Doe of B., farmer, [here insert the forty-eight jurors summoned to appear; then at the foot say,] r Joh7i Doe ■I and [^ Richard Roe. Issues upon each of them 40 s. A copy of the names are to be made on strong paper, to be put in a box with the additions, as in the panel, to be delivered to the marshal. But if the sheriflP be not an indifferent person, as if he be a party in the suit, or be related either by blood or affinity to either of the parties, he is not then trusted to return the jury ; but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks in court, or two persons of the county named by the court and sworn (c). And these two, who are called elisors, shall indifferently name the jury, and their return is final. With respect to trial on the criminal side, it may be observed, that the founders of the English laws have, with excellent forecast, contrived, that no man should be called to answer to the kmg for any capital crime unless upon the preparatory accusation of twelve or more of his fellow- subjects, who are called the grand jury; and that the truth of every accusation, Vvhether preferred in the shape of indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighhours, indifferently chosen, and superior to all suspicion. When a prisoner, on his arraignment, has pleaded not guilty, and upon his trial hath put himself upon the coun- (c) Co. Lit. 158, a. 2 Rol. Abr. G71. Fortcsc. de Laud. c. 25. 265 sheriff must return a panel of jurors. If proceedings in K. B. JURIES. try, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legates homines de vicineto ; that is, freeholders without just exception, and of the visne or neighbourhood ; which is interpreted to be of the county where the fact is committed (cZ). If the pro- ceedings are before the court of King's Bench, there is time allowed, between the arraignment and the trial, for a j ury to be impanelled by writ of venire facias to the sherin, as in civil causes ; and the trial in the case of a misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar ; which is always invariably had when the prisoner is tried for any capital offence. But before commissioners of oyer and terminer and gaol- delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty- eight jurors, freeholders of 10 1, per annum, to try all felons that may be called upon their trial at that session ; and, therefore, it is there usual to try all felons imme- diately, or soon after their arraignment ; but for misde- meanors, security is usually given to appear at the next assize or session to try the traverse, giving notice to the prosecutor of the same. The sheriff must return more than twelve for the grand jury ; and generally an odd number, as seventeen, nine- teen or twenty-one, are sworn, to prevent the mconve- nience of an equal number of voices, on a division, to retard finding a bill, though twelve are to agree, or it will be void. Forty-eight of the grand inquest, each to have 80 Z. per annum in land, are to be summoned for York assizes, and I %^ }^^ ^' forty-eight at the sessions. But before com- missioners of oyer and ter- miner. Misdemeanors. How many sheriff to return on grand in- quest. 32. s. 8. The Act relating to Jurors. The laws relative to the qualification, summoning and formation of juries having become numerous and com- plicated, the whole have been consolidated, simplified and amended, by the 6 Geo. 4, and the following pro- c 50, visions now constitute the entire body of law upon that subject. Every man, except as herein-after excepted, between Qualification of the ages of 21 years and 6o years, residing in any county jurors in Eng- in England, who shall have in his own name or in trust for land in superior (rf) 2 Hal. P. C. 264. 266 courts, assizes, and sessions of tiie peace. (See 13 Ed. I.e. 38. 27 Eliz. c. 6. 4 & 5 W. & M. c. 2.5. s. 15. 3 G. 2. c. 25. s. 18.) Qualification in Wales, (See 4 & 5 W. & M. c. 25. s, 15.) s. 1. Exemptions from sei'ving on juries. (See 1 W. & M. c. 18. s. 11, 19 G. 3. c. 44. 31 G, 3. c. 32. s. 8. 52 G. 3. c. 155. s. 9, JURIES. him, within the same county, lo^ by the year above reprizes, in lands or tenements, whether of freehold, copy- hold, or customary tenure, or of ancient demesne, or in rents issuing out of any such lands or tenements, or in such lands, tenements, and rents taken together, in fee simple, fee tail, or for the life of himself or some other person, or who shall have within the same county 20 1. by the year above reprizes, in lands or tenements, held by lease or leases for the absolute term of 2 1 years, or some longer term, or for any term of years determinable on any life or lives, or who being a householder shall be rated or assessed to the poor-rate, or to the inhabited house-duty in the county of Middlesex, on a value of not less than 30 /. or in any other county on a value of not less than 20/., or who shall occupy a house containing not less than 15 win- dows, shall be qualified and shall be liable to serve on juries, for the trial of all issues joined in any of the king's courts of record at Westminster, and in the superior courts, both civil and criminal, of the three counties palatine, and in all courts of assize, nisi prius, oyer and terminer, and gaol delivery, such issues being respectively triable in the county in which every man so qualified respectively shall reside ; and shall also be qualified and liable to serve on grand juries in courts of sessions of the peace and on petty juries, for the trial of all issues joined in such courts of sessions of the peace, and triable in the county, riding, or division in which every man so qualified respectively shall reside ; and that every man (except as excepted) being between the aforesaid ages, residing in any county in Wales, and being there qualified to the extent of three-fifths of any of the foi-egoing qualifications, shall be qualified and shall be liable to serve on juries for the trial of all issues joined in the courts of great sessions, and on grand juries in courts of sessions of the peace, and on petty juries for the trial of all issues joined in such courts of sessions of the peace, in every county of Wales, in which every man so qualified as last aforesaid respectively shall reside. Provided always. That all peers ; all judge s of the king's courts of record at Westminster, and of the courts of great session in Wales ; all c lergymen in holy ord ers ; all priests of the Roman-catholic laith who shall have duly Taken and subscribed the oaths and declarations required by law ; all persons who shall teach or preach in any congregation of protestant dissenters, whose place of meeting is duly registered, and who shall follow no secular occupation except that of a schoolmaster, producing a certificate of some justice of the peace of their having taken the oaths, (n) Lamb. 396. JtfRlES. nncl subscribed the declaration required by law ; all ser- "eants and barristers at law actually practising ; all mem- 267 t ers of the society of doctors of law, and advocates of the civil law, actually practising ; all attornies, solicitoi'S, and proc tors duly admitted in any court oTlaw or equity ; or of ecclesiastical or admiralty jurisdiction, in which attor- nies, solicitors, and proctors have usually been admitted, actually practising, and having duly taken out their annual certificates ; all officers of any such courts actually exer- cising the duties of their respective offices ; al l coronej s, gaolers, an d keeper s of houses of correction ; all members and li centiate s or the RoyaT College of Physicians in London actually^pr actisin g : alTs urgeon s being members of one of (SeeSH.S.c. G. the royal collegesjof surgeo ns in London, Edhiburgh, or 1^||^\^' ^' *^* Dublin, and actually practising; all apo thec aries certifi- /See6&7 cated by the court of examiners of the apothecaries com- w. & M. c. 4.) pany, and actually practising ; all officers in His Majesty's 55 G. 3. c. 194. navy or army on full-pay : all pilots licensed by the Trinity- house of Deptford Strottd, Kingston-upon-Hidl, or Netu- castle-upon-Tyne, and all masters of vessels in the buoy and light service, employed by either of those corpora- tions, and all pilots licensed by the Lord Warden of the Cinque Ports, or under any act of parliament or charter for the regulation of pilots in any other port ; all the house- hold servants of His Majesty, his heirs and successors ; all officers of customs and excise ; all sherifTs officers, high c onstab les, and par ish cle rks; shall be~and are hereby absolutely freed and exempted from being returned, and from serving upon any juries or inquests whatsoever, and shall not be inserted in the lists to be prepared by virtue of this act as herein-after mentioned : provided also, that all persons exempt from serving upon juries in any of the courts aforesaid, by virtue of any prescription, charter, grant, or writ, shall continue to have and enjoy such ex- emption in as ample a manner as before the passing of this act, and shall not be inserted in the lists hereinafter mentioned. s. 2. Provided also, that no man, not being a natural born subject of the king, is or shall be qualified to serve on juries or inquests, except only in the cases hereinafter expressly provided for; and no man who hath been or shall be attainted of any treason or felony, or convicted of any crime that is infamous, unless he shall have obtained a free pardon, nor any man who is under outlawry or excommunication, is or shall be qualified to serve on juries or inquests in any court, or on any occasion whatsoever. That the clerk of the peace in every county, riding, and division in England and Wales, shall, within the first week Aliens disqua- lified except on juries de me- dietate. Convicts or outlaws, &c. disqualified. s. 3. Clerk of the peace to issue warrants to the 268 high constables in July. (See 3 iSc 4 Anne, c. 18. s. 5. 3G. 2. C.25.) s. 4. Clerk of the peace to annex printed forms of precepts and returns to his warrants. s. 5. High constables to issue precepts to churchwar- dens and over- seers within their constable- wicks, com- manding them to make out the jury lists. Where there are several high constables, each to be responsible for the duties required by this Act throughout the whole hun- dred. JURIES. of July in every year, issue and deliver his warrant (In the form in the schedule hereunto annexed, or as near thereto as may be) to the high constables of each hundred, lathe, wapentake or other like district, by which he shall com- mand them to issue forth their precepts to the church- wardens and overseers of the poor of the several parishes, and to the overseers of the poor of the several townships within their respective constablewicks, requiring them to prepare and make out, before the first day September then next ensuing, a true list of all men, residing within their respective parishes and townships, qualified and liable to serve on juries according to this act as aforesaid, and also to perform and comply with all other the requisitions in the said precepts contained. That every such clerk of the peace shall cause a suffi- cient number of warrants, precepts and returns to be printed, according to the several forms set forth in the schedule hereunto annexed, at the expense of the county, riding or division, and shall annex to every warrant a com- petent number of precepts and returns for the use of the respective persons by whom such precepts are to be issued and such returns to be made. That within 14 days after the receipt of such warrant of the clerk of the peace, every high constable shall issue and deliver his precept (in the form set forth in the sche- dule annexed, or as near thereto as may be), together with a competent number of the printed forms of returns, to the churchwardens and overseers of the poor of the several parishes, and to the overseers of the poor of the several townships within his constablewick, requiring them by such precept to prepare and make out a true list of all men residing within their respective parishes and town- ships, qualified and liable to serve as jurors as aforesaid, and to perform and comply with all the requisitions in the said precept contained : provided always, that where in any hundred, lathe, wapentake, or other like district, there shall be more than one high constable, in such case the clerk of the peace shall issue and deliver his warrant, toge- ther with a competent number of the precepts and returns as aforesaid, to every one of such high constables, each of whom shall be individually liable for the due performance of the several matters commanded in such warrant throughout the whole of such hundred, &c. or other like district, and shall for the non-performance thereof be sub- ject to all and every the penalties by this act imposed upon any high constable ; provided also, that where in any parish there shall be no overseers of the poor, other than the churchwardens, such churchwardens shall be deemed JURIES. and taken to be the churchwardens and Overseers of tlie poor of such parish, within the meaning of this act, to all intents and purposes ; provided also, that where any parish or township shall extend into more than one hundred, &c. either in the same or different counties, such parish or township shall be deemed and taken, for all the purposes of this act, to be within that hundred, &c. in M'hich the prin- cipal church of such parish or township shall be situate. That it shall be lawful for the justices of the peace of any division in England or Wales, at a special petty ses- sions to be holden for that purpose, before the 1st July in any year, to make an order for annexing any extra -paro- chial place, whenever they shall think it expedient, to any parish or township adjoining thereto, for the purposes of this act, and a copy of such order shall, within five days from the making thereof, be served upon the church- wardens and overseers of such adjoining parish, or upon the overseers of such adjoining township, and such extra- parochial place shall from thence continually be deemed and taken, for all the purposes of this act, to be within and to form an integral part of such parish or township ; and the churchwardens and overseers of such parish, and the overseers of such township, shall be and they are hereby respectively authorized and required to make out, according this act, a true list of all men qualified and liable to serve on juries as aforesaid, residing as well in their own respective parish or township as in the extra-parochial place thereto annexed, and shall from time to time per- form and execute within such extra-parochial place for the purposes of this act, but for no other purpose, all and every the same acts, duties, powers, and authorities, as in their own respective parish or township, and shall be as fully liable to the same penalties for the non performance thereof within such extra-parochial place, as if they had in every instance been mentioned in this act with refex'ence to such extra-parochial place. That the churchwardens and overseers of every parish, and the overseers of every township, within the meaning of this act, shall forthwith, after the receipt of such pre- cept from the high constable, prepare and make out in alphabetical order a true list of every man residing within their respective parishes or townships, who shall be quali- fied and liable to serve on juries as aforesaid, with the christian and surname written at full length, and with the true place of abode, the title, quality, calling or business, and the nature of the qualification of every such man, in the proper columns of the form of return set forth in the schedule hereunto annexed. 209 Parishes, 6cc. extending into more than one hundred, to be treated as en- tirely within the hundred where the parish church is. s. G. ustices of divi- sion may order any extra-paro- chial place to be annexed to any adjoining parish or township, for the purposes of this Act. s. 7. Churchwardens and overseers to make out lists of persons qua- lified to sei-ve on juries, with their residences, &c. (See 3 & 4 Anue, c. 18. s. 5.) s. 8. 270 Lists to be fixed on church doors, and also kept by churchwar- dens for inspec- tion, 3 G. 2. c. 25. s. 9. Petty sessions to be held in the last week of September. Lists to be there produced, con- sidered, re- formed, and allowed. 3 G. 2. c. 25. JURIES. That the churchwardens and overseers of each parish, and tlie overseers of each township, having made out ac- cording to this act a hst of every man qualified and Hable to serve on juries as aforesaid, shall, on the three first Sundays in the month of September, fix a true copy of such hst upon the principal door of every church, chapel and other public place of religious worship within their respec- tive parishes or townships, having first subjoined to every such copy a notice, stating, that all objections to the list will be heard by the justices of the peace at a time and place to be mentioned in such notice, and having also signed their names at the foot of such copy, and shall like- wise keep the original list, or a true copy thereof, to be perused by any of the inhabitants of their respective pa- rishes or townships, at any reasonable time during the three first weeks of the month of September, without any fee or reward, to the end that notice may be given of men quali- fied who are omitted, or of men inserted who ought to be omitted out of such list ; and the churchwardens and over- seers of each parish, and the overseers of each township, are hereby authorized to cause a sufficient number of copies of such lists, for the purposes aforesaid, to be printed at the expense of their respective parishes or townships. That the justices of the peace in every division in Eng- land and IVales shall hold a special petty sessions for the purposes herein mentioned, within the last seven days of Septeynber in every year, on some day, and at some place, of which notice shall be given by their clerk, before the 2oth day of August next preceding, to the high constable and to the churchwardens and overseers of every parish, and to the overseers of every township, within such divi- sion ; and the churchwardens and overseers of each parish, and the overseers of each township, shall then and there produce the list of men qualified and liable to serve on juries as aforesaid, within their respective parishes or town- ships, by them prepared and made out as herein-before directed, and shall answer upon oath such questions touch- ing the same as shall be put to them, or any of them, by the justices then present ; and if any man, not qualified and hable to serve on juries as aforesaid is inserted in any such list, it shall be lawful for the said justices, upon satisfaction fi'om the oath of the party complaining, or other proof, or upon their own knowledge, that he is not qualified and hable to serve on juries, to strike liis name out of such list, and also to strike thereout the names of men disabled by lunacy or imbecihty of mind, or by deafness, blindness or other permanent infirmity of body, from serving on juries ,- and it shall also be lawful for such justices to insert in such JURIES. 271 list the name of any man omitted therein, and hkewise to reform any errors or omissions which shall appear to them to have been committed in respect to the name, place of abode, title, quality, calling, business, or other nature of the qualification of any man included in any such list : Provided always, that no man's name, if omitted, shall be Petty sessions inserted in such list, nor shall any error or omission in the not to alter any description of any man in such list be reformed by the said "^t without justices, unless upon the application of such men respectivly, parlv^to be^ or unless such men respectively shall have had notice that affected by the an application for such purpose would be made to the jus- alterations. tices at such petty sessions, or unless the said justices at such sessions, or any two of them, shall cause notice to be given to such men respectively, requiring them to show cause, at some adjournment of such petty sessions to be holden within four days thereafter, why their names should not be inserted in such list, or why any error or omission in the description of such men in such list should not be reformed ; and when Power of ad- every such list shall be duly corrected at such sessions, or at joumment. such adjournment thereof, it shall be allowed by the justices Lists, after present, or two of them, at such sessions or such adjourn- allowance by ment, who shall sign the same, with their allowance thereof; P^"^' sessions, and the high constable shall receive every list so allowed, 1° ^^ delivered 1 1 !• 1 1 r> • 'to nign con- ancl deliver the same to the court ot quarter sessions next stable, and by holden for the county, riding, or division, on the first day liim to the next of its sitting, at the same time attesting on oath his receipt quarter sessions. of every such list from the petty sessions, and that no alte- ^^l": ^ ^1 ^' ration hath been made therein since his receipt thereof. s.' il[ That the respective churchwardens and overseers of Tax assessments every parish, and the overseers of every township, shall, and poor rates for their assistance in completing the lists, pursuant to the ^° ^^ inspected. intent of this act (upon request made by them or any of them at any reasonable time between the i st day of J?(lj/ and the l st day of October in every year, to any collector or assessor of taxes, or to any other officer having the custody of any duplicate or tax assessment for such parish or town- ship), have free liberty to inspect any such duplicate or assessment, and take from thence the names of such men {^f^^ ^{ x' qualified to serve on juries, dwelling within their respective ^" " ^' parishes or townships, as may appear to them or any of them to be necessary or useful ; and eveiy court of petty sessions and justice of the peace shall, upon the like request to any collector or assessor of taxes, or any other officer having the custody of any duplicate or tax assessment, or to any chuchwarden or churchwardens, or overseer or over- seers, having the custody of any poor rate within their respective divisions, have the like free liberty to inspect and make extracts from any such duplicate, tax assessment, or 272 s. 11. Lists to be kept by clerk of peace, and copied into a book, to be deli- vered to sheriff. (See 7 & 8 W. 3. c. 32. s. 4. 3 G. 2. C.25, s. 2.) Book to be called "The Jurors Book." Sheriff to deliver it to his suc- cessor. To be used for one year from 1st January, s. 12. Form of venire J'ucias ; (see 4 A line, c. 16. s 6& 7. 24 G. 2. c. 18.) and of precept for jurors at gaol deliveries and sessions of the peace. s. 13. Juries to be returned from jurors book, by sheriff, and by coroners and elisors. JURIES. poor rate, for the puipose of assisting them in the refor- mation and completion of the jury hsts within their respec- tive divisions. That the clerk of the peace shall keep the lists, so returned by the high constable to the court of quarter sessions, among the records of the sessions, arranged with every hundred in alphabetical order, and every parish or township within such hundi'ed likewise in alphabetical order, and shall cause the same to be fairly and truly copied, in the same order, in a book to be by him provided for that pur- pose, at the expense of the county, riding, or division, with proper columns for making the register hereinafter directed, and shall deliver the same book to the sheriff of the county or his under-sheriff, within six weeks next after the close of such sessions, which book shall be called " The Jurors Book for the year " (inserting the calendar year for which such book is to be in use) ; and that every sheriff on quitting his office shall deliver the same to the succeed- ing sheriff; and that every juror's book so prepared, shall be brought into use on the 1st day o^ Januari/ after it shall be so delivered by the clerk of the peace to the sheriff or his under-sheriff, and shall be used for one year then next following. That every writ of venire facias jiiratores for the trial of any issue whatsoever, whether civil or criminal, or on any penal statute, in any of the courts in England or Wales hereinbefore mentioned, shall direct the sheriff to return twelve good and lawful men of the body of his county, qualified according to law, and the rest of the writ shall proceed in the accustomed form ; and that every precept to be issued for the return of jurors before courts of oyer and terminer, gaol delivery, the superior criminal courts of the three counties palatine, and courts of sessions of the peace in England, and before the courts of great sessions and sessions of the peace in Wales, shall in like manner chrect the sheriff to return a competent number of good and lawful men of the body of his county, qualified accord- ing to law, and shall not require the same to be returned from any hundred or hundreds, or from any particular venue within the county, and that the want of hundredors shall be no cause of challenge; any law, custom or usage to the contrary notwithstanding. That every sheriff, upon the receipt of every such writ of venire facias and precept for the return of jurors, shall return the names of men contained in the jurors book for the then current year, and no others ; and that where process for returning a jury for the trial of any of the issues afore- said shall be directed to any coroner, elisor, or other minister, JURIES. 273 he shall have free access to the jurors book for the current year, and shall in like manner return the names of men contained therein, and no others ; provided always, that if there shall be no jurors book in existence for the current year, it shall be lawful to return jurors from the jurors book for the year preceding. s. 14. That every sheriff or other minister to whom the return sheriif, &:c. on of juries for the trial of issues before any court of assize or return of writs of nisi prius in any county of Endand, except the counties vemre facias, Ui palatine, may belong, shall, upon his return oi every writ oi ^,|f jurors, &c. venire facias (unless in causes intended to be tried at bar, (See 3 G. 2. or in cases where a special jury shall be struck by order or c. 25. s. k.) rule of court), annex a panel to the said writ, containing the names, alphabetically arranged, together with the places of abode and additions, of a competent number of jurors named in the jurors book, and that the names of the same jurors shall be inserted in the panel annexed to every venire facias for the trial of all issues at the same assizes or sessions o^ nisi prius in each respective county, which num- ber of jurors shall not in any county be less than 48 nor more than 7*2, unless by the direction of tlie judges appointed to hold the assizes or sessions of nisi prius in the same county, or one of them, who are and is hereby empowered, by order under their or his hands or hand, to direct a greater or lesser number, and then such number as shall be so directed shall be the number to be returned ; and that in the writ of habeas corpora juratorum or dis- tringas, subsequent to such writ of venire facias, it shall not be requisite to insert the names of all the jurors contained in such panel, but it shall be sufficient to insert in the mandatory part of such writs respectively, " the bodies of " the several persons in the panel to this writ annexed " named," or w ords of the like import ; and to annex to such writs respectively, panels containing the same names as were returned in the panel to such venire facias, with their places of abode and additions ; and that for making the returns and panels aforesaid, and annexing the same to the respective writs, the ancient legal fee, and no other, shall be taken ; and that the men named in such panels, and no otiiers, shall be summoned to serve on juries at the then next court of assizes or sessions of nisi prius for the respec- tive counties named in such writs. s. 15. That if aoy plaintiff or demandant in any cause which if plaintiff sue shall be at issue in any of His Majesty's courts of record at forth a ie»/re. IVestminsier, or any defendant in any action of y/j^/re m- f,'^"/" "j^^^J^^" jjedit or replevin which shall be so at issue, shall sue out ^^^^^ ^"^^ H^"" any writ of venire facias, upon which any writ of habeas cor- ^^y afte'rwarcls pora or distringasvixth a nisi prius shall issue, in order to the sue forth any- T 274 ther venire, &;r, and tiy at any subsequent assizes. (See 7 & 8 W. 3. c. 32. s. 1.) Defendant may do the same. s. IP. Returns of jurors in the counties pala- tine. CSee 3 G. 2. c. 25. s. 10.) JURIES. trial of the said issue at the assizes or sessions of nisiprius, and shall not proceed to trial at the first assizes ar sessions of^ nisi pri?is after the teste of such writ o^ habeas corpora or distringas, then and in every such case (except when a view by jurors shall be directed, as hereinafter mentioned) such plaintiff, demandant, or defendant, whensoever he shall think fit to try the said issue at any other assizes or sessions of 7iisi prius, shall sue forth a new writ of venire Jacias, commanding the sheriff to return anew twelve good and lawful men of the body of his county, qualified according to law, and the rest of the writ shall proceed in the ac- customed manner ; which writ being duly returned, a writ of habeas corpora or distringas with a nisi prius shall issue thereupon (forwhich the same fees shall be paid as in the case of the pluries habeas corpora or distringas with a nisi prius), upon which such plaintiff, damandant, or defendant shall and may proceed to trial as lawfully and effectually to all intents and purposes as if no former writ of venire Jacias had been prosecuted in that cause, and so toties quoties, as the case shall require ; and if any defendant or tenant in in any action depending in any of the said courts shall be minded to bring to trial any issue joined against him, where by the practice of the court he may do the same by proviso, he shall or may, of the issuable term next preceding such intended trial to be had at the next assizes or sessions of nisi prius, sue out a new venire Jacias to the sheriff in the form aforesaid by proviso, and prosecute the same by writ of habeas coypora or distri?igas with a iiisi prius, as lawfully and effectually to all intents and purposes as if no former writ of venire Jacias had been sued out or returned in that cause, and so toties quoties, as the matter shall require. That every sheriff or other minister to whom the return of juries for the trial of causes in the superior courts of the said counties palatine may belong, shall, ten da ys at least before the said courts shall respectively be nelcl, summon a competent number of men, named in the jurors book, to serve on juries in the said courts, so as such number be not less than 48 nor more than 72, without the direction of the judge or judges of the courts for such counties palatine respectively ; and the sheriff or other minister who shall summon such jurors shall return a list, containing the names, alphabetically arranged, and the places of abode and additions, of the jurors so summoned, o n the first day of the court to be held for the said counties palatme respec- tively ; and the jurors so summoned, or a competent num- ber of them, as the judge or judges of such courts respec- tively shall direct, and no others , (unless in cases where a special jury shall be struck), shall be named in every JURIES. 275 panel to be annexed to every writ of venire Jhcias jura- tores, habeas corpora jicratortim, and distringas, which shall be issued out and returnable for the trial of causes in such courts respectively. s. 17. That every sheriff or other minister to whom the return Returns of of juries for the trial of causes in the court of great ses- jurors in Wales, sions in any county of Wales may belong, shall, at least ten days before every great sessions, summon a competent number of men named in the jurors book, so as such (See 3 G. 2. number be not less than 48 or more than 72, without the c. 25. s.9.) direction of the judge or judges of the great sessions for such county, who is and are hereby empowered, if he or they shall see cause, by rule of court, or by an order of any judge thereof) to be made in vacation, if necessary, to direct a greater or lesser number to be summoned ; and that the sheriff or other minister M'ho shall summon such jurors shall return a list, containing the names, aljihabeti- cally arranged, and the places of abode and additions, of the jurors so summoned, at the first court of the second day of every great sessions ; and that the jurors so sum- moned, or a competent number of them, as the judge or judges of such great sessions shall direct, and no others (unless in cases where a special jury shall be struck), shall be named in every panel to be annexed to every writ of venire Jhcias juratores, habeas corpora juratorum, and dis- tringas, which shall be issued out and returnable for the trial of causes at such great sessions. s. 18. That the sheriff or other minister to whom the return Copy of the of jurors for the trial of causes in any county in England, panel to be kept (except the counties palatine) may belong, shall cause to 'Vj^*^ sheriff's be made out an alphabetical list of the names of all the °nspection of^the jurors contained in the panels to the several writs oi venire parties and their Jhcias annexed as aforesaid, with their respective places of attomies. abode and additions ; and the sheriff or other minister to (^^^ 42 Ed. 3. whom the return of jurors for the trial of causes in any g u /" o^ county palatine, or in any county in Wales, may belong, shall cause to be made out in like manner a list of all the jurors so summoned in such respective counties as afore- said ; and every such sheriff or other minister shall keep such list in the office of his under-sheriff or deputy for seven days at least before the sitting of the next court of assize %'v nisi prills, or the next court to be holdcn lor any county palatine, or the next court of great sessions in any county in Wales ; and the parties in all causes to be tried at any such court of assize or nisi prius, or court of any county palatine or great sessions, and their respective atfornies, shall, on demand, have full_ liberty to inspect such list, without any fee or rewarTto be paid for inspecti on. _s. 19. T 2 270 Juries in all ciiminal courts to be ret'.irne;! as before. (3 II. 8. c. 12.) s. 20. Copy of the panel to be deli- vered to parties" indicted fur high treason. (See 7 Anne, c. 21. s. 7.) Exceptions. 39 & 40 G. 3. f. 93. 6 G. 3.C. 53. s. 3. %. 21. JURIES. Provided that the court of King's Bench, and all courts of oyer and terminer, gaol delivery, the superior criminal courts of the three counties palatine, and courts uf ses- sions of the peace in Enghinr/, and all courts of great ses- sions and sessions of the peace in IVales, shall respectively have and exercise the same power and authority as they have heretofore had and exercised in issuing- any writ or precept, or in making any award or order, orally or other- wise, for the return of a jury for the trial of any issue before any of such courts respectively, or for the amending or enlarging the panel of jurors returned for the trial of any such issue ; and the return to every such writ, precept, award or order, shall be made in the manner heretofore used and accustomed in such courts respectively, save and except that the jurors shall be returned from the body of the county, and not from any hundred or himdreds, or from any particular venue within the county, and shall be qualified according to this act. That when any person is indicted for high treason or misprision of treason, in any court other than the court of King's Bench, a list of the petit jury, mentioning the names, profession, and place of abode of the jurors, shall be given at the same time that the copy of the indictment is delivered to the party indicted, which shall be ten days before the arraignment, and in the presence of two or more creditable witnesses ; and when any person is indicted for high treasion or misprision of treason in the court of King's Bench, a copy of the indictment shall be delivered within the time and in the manner aforesaid ; but the list of the petit jury, made out as aforesaid, may be delivered to the party indicted at any time after the arraignment, so as the same be delivered ten days before the day of trial : provided always, that nothing herein contained shall any- ways extend to any indictment for high treason in com- passing and imagining the death of the king, or for mis- prision of such treason, where the overt act or overt acts of such treason alledged in the indictment shall be assassina- tion or killing of the king, or any direct attempt against his life, or any direct attempt against his person, whereby his life may be endangered, or his person may suffer bodily harm ; or to any indictment of high treason for counter- feiting His Majesty's coin, the great seal or privy seal, his sign manual or privy signet ; or to any indictment of high treason, or to any proceedings thereupon, against any offender or offenders who by any act or acts now in force is and are to be indicted, arraigned, tried, and convicted by such like evidence, and in such manner as is used and allowed against offenders for counterfeiting His Majesty's coin. JURIES. That in any county in which the justices of assize in England, or the justices of the superior courts of the said counties palatine, or the judi^es of the great sessions in any county of Wales, shall think fit so to direct, the sheriff or other minister to whom the return of the venire facias jvratores, or other process for the trial of causes at nisi prius, doth belong, shall summon and impannel such num- ber of jurors, not exceeding 144, as such judges or jus- tices respectively shall think fit to direct, to serve indis- criminately on tlie criminal and civil side ; and that where such judges or justices respectively shall so direct, the sheriff or other minister shall divide such jurors equally into two sets, the first of which sets shall attend and serve for so many days at the beginning of each assize or great sessions, as such judges or justices respectively shall, within a reasonable time before the commencement of such assize or great sessions, respectively think fit to direct, and the other of which sets shall attend and serve for the residue of such assize or great sessions: provided always, that such sheriff or other minister shall, in the summons to the jurors in each of such sets, specify whether the juror named therein is in the first or second set, and at what time the attendance of such juror will be required ; and the sheriff or other minister to whom the return of the venire Jiici as juratores, or other process for the trial of causes at nisi prius, doth belong, shall, upon his return of every such M'rit or process, annex thereto a" panel containing the names, alphabetically arranged, together with the addi- ditions and places of abode, of the jurors in each of such sets ; and during the attendance and service of the first of such sets, the jury on the civil side shall be drawn from the names of the persons in that set, and during the attend- ance and service of the second of such sets, from the names of the persons in such second set ; provided always, that in any case vvherein an order for a view shall have been ob- tained as hereinafter mentioned, it shall be lawful for the judge before whom such case is to be tried, and he is hereby required, on the application of the party obtaining such order, to appoint such case to be tried during the attendance and service of that set of jurors in which the viewers, or the major part of them, are included. That wherein any case either civil or criminal, or on any penal statute, depending in any of the said courts of record at IVcst minster, or in the counties palatine, or great ses- sions in IVales, it shall appear to any of the respective courts, or to any judge thereof in vacation, that it will be proper and necessary that some of the jurors who are to try the issues in such case should have the view of the T 3 277 Judge of assize, &c. to direct the same panel for the criminal and civil sides, and two sets of jurors to be sum- moned, one to attend at tlie beginning of each assizes, and the other to attend the resi- due tiiereof, to serve indiscri- minately on the criminal and civil side. (See 1 & 2 G.4. c 4C.) Summons to be made out either for the first or second set. In case of views, the judge to appoint trial during the attendance of the viewers. s. 22. Where jurors are to view lands, &c. court may order special wjits of venire facias, distringas, or hiibeas corpora. 278 ^;2«;A/.a£V 4(See 4 Anne, ^- /L ■ ^ Jc. IG. s 8. ^;.iV^->jV(^. 14. 8.23. Viewers in case of appearance to he sworn upon the jury first. (See 3 G. 2. c. 25. s. 14.) s. 24. Jurors to be summoned ten days before the day of attend- ance, (See 7 & 8 W. 3. c. 32. s. .5 & 11.) and for special jurors three days. Time for sum- moning jurors for London, &c. as heretofore. JURIES. place in question, in order to their better understanding the evidence that may be given upon the trial of such issues, in every such case such court, o r any judge thereof in vaca- tion, may order a rule to be drawn up containing the usu al terms. "and also " requiring, if such court or judge shall so t HTin^ fi t, the' partj_applying7orJIi£_view to d eposit in the hands of the unde r-sheriff a sum of mon ey to~be named m tHe rule for tlie pa yment ot the' expenses of the view, and comnia nding special writs of venire facias, distringas or habeas corpora, to issue, by which the sheriff or other mi- nister to whom the said writs shall be direc ted shall be com manded to have six or more of" the jiarors named in s uch writs , orln the paneTs thereto ann gj^d, (who shall be m utually c onsented to by the partjeSj or if they cannot agree, sfellbenominated by the_£heriff or such other mi- nister as aforesaid.") a t the place in question, s ome con- venient time before me trial , who then "and^tnere shall have the place in question shown to themTjy two persons in the s^i d^ writs ngr ned. to be appointed by the court or judge ; and the said sheriff or other minister who is to exe- cute any such wri t shallj^ b y a special return u pon the same, certify that the view "hatlL been had according to the com- mand oif" the same. Ltltbeei and shall id a ccording specify the names of the That where a view shall be allowed in any case, those men who shall have had the view, or such of them as shall appear upon the jury to try the issue, shall be first sworn, and so many only shall be added to the viewers who shall appear as shall, after all defaulters and challenges allowed, make up a full jury of twelve. That the summons of every man to serve on juries, not being 'special juries, in any one of the courts aforesaid, shall be made by the proper office r ten d ays at the least before the day on which the juror is to attend, by showing to the man to be summoned, or in case he shall be absent from the usual place of his abode, by leaving with some person there inhabiting, a note in writing, under the hand of the sheriff or other proper officer, containing the sub- stance of such summons ; and the summons of every man to serve on special juries in any of the courts aforesaid shall be made by the like persons and in the like manner as aforesaid, three days at the least before the day on which the special juror is to attend : provided always, that this act shall not require any longer time for summoning any jurors in the city of London or county of Middlesex than has been heretofore by law required, nor shall give any longer time for the return of any writ of venire Jacias, habeas corpora or distringas, than has been heretofore by JURIES. law required ; but that where there shall not be ten days between the awarding of such writ and the return thereof, every juror may be summoned, attached or distrained to appear at the day and time therein mentioned, as he might heretofore have been. That the name of each man v/ho shall be summoned and impannelled in any court of assize or nisi prius, or for the trial of issues in the civil courts of the counties palatine or great sessions, with the place of his abode and addition, shall be written on a distinct piece of parchment or card, such pieces of parchment or card being all as nearly as may be of equal size, and shall be delivered unto the associate or prothonotary of such court b}'^ the under-sheriff of the county, or the secondary of the city of Lojulon, and shall, by direction and care of such associate or prothonotary, be put together in a box to be provided for that purpose, and when any issue shall be brought on to be tried, such associate or prothonotary shall in open court draw out 12 of the said parchments or cards one after another, and if any of the men whose names shall be so drawn shall not appear, or shall be challenged and set aside, then such fur- ther number, until 1 2 men be drawn, who shall appear, and after all just causes of challenge allovt^ed, shall remain as fair and indifferent ; and the said 12 men so first drawn and appearing, and approved as indifferent, their names being marked in the panel, and they being sworn, shall be the jury to try the issue, and the names of the men so drawn and sworn shall be kept apart by themselves until such jury shall have given in their verdict, and the same shall be recorded, or until such jury shall, by consent of the parties or by leave of the court, be discharged, and then the same names shall be returned to the box, there to be kept with the other names remaining at that time undrawn, and so toties quoties as long as any issue remains to be tried : provided always, that if any issue shall be brought on to be tried in any of the said courts before the jury in any other issue shall have brought in their verdict or been discharged, it shall be lawful for the court to order 1 2 of the residue of the said parchments or cards, not containing the names of any of the jurors who shall not have so brought in their verdict or been discharged, to be drawn in such manner as is aforesaid, for the trial of the issue which shall be so brought on to be tried : provided also, that where no ob- jection shall be made on behalf of the king or any other party, it shall be lawful for the court to try any issue with the same jury that shall have previously tried or been drawn to try any other issue, without their names being returned to the box and re-diawn, or to order the name or names of T 4 279 25. Names of jurors to be delivered to the associate, and ballotted for juries in civil courts. (See3G.2.c.25. s. 11 & 12.) Where the jury have not brought in their verdict, twelve others to be drawn. The same jury, if not objected to, may try several isues in succession, without being re-drawn. 2JJ0 ». '26. Want ol'iiuuli- fication in common jurors to be cause of challenge. (See 4 ..inal, or on any penal statute, excepting only indictments for treason or felony, depend- ing in any of the said courts, and the said courts and rjG. 3.'c. 51 judges respectively are hereby authorized, in any of the as to Wales.) cases before mentioned, to order and appoint a special s. 30. jury to be struck before the proper officer of each respec- tive court, for the trial of any issue joined in any of the said cases, and triable by a jury, in such manner as the said courts respectively have usually ordered the same ; and every jury so struck shall be the jury returned for the trial of such issue. That every man who shall be described in the jurors book for any county in England or Wales, or for the county of the city of London, as an esquire or person of higher degree, or as a banker or merchant, shall be quali- fied and liable to serve on special juries in every such county in England and Wales, and in London respectively ; and the sheriff of every county in England and Wales, or his under-sheriff, and the sheriffs of London or their secondary, shall, within ten days after the delivery of the jurors book for the current year to either of them, take from such book the names of all men who shall be described therein as esquires or persons of higher degree, or as bankers or merchants, and shall respectively cause the names of all such men to be fairly and truly copied out in alphabetical order, together with their respective places of abode and additions, in a separate list to be sub- joined to the jurors book, which list shall be called " the special jurors list," and shall prefix to every name in such list its proper number, beginning the numbers from the first name, and continuing them in a regular arithmetical series down to the last name, and shall cause the said several numbers to be written upon distinct pieces of parchment or card, being all as nearly as may be of equal size, and after all the said numbers shall have been so written, shall put the same together in a separate drawer or box, and shall therein keep safe the same, to be used for the purpose hereinafter mentioned. That wdiencver any of the courts or judges above men- tioned shall order a special jury to be struck before the proper officer of such court, such officer shall appoint a time and place for the nomination of such special jury ; and copy of the rule of court, and of such officer's appointment, shall be served on the under-sheriff of the county in Eng- land or (Talcs in which the trial is to be had, or on the secondary of the city of London, if the trial is to be liad Qualifications of special jurors in English and Welsh counties, and London ; sheriff to extract from juioni hook the names of all men qualified ; and write them in a separate list, prefix numbers to all the names in such list ; and write all the numbers on dis- tinct cards, and put them in a box for safe custody. s. 31. Officer of court to appoint the time and place for nominating the special jury. ^ / ^J or after his appearance shall wilfully withdraw himself from s. 38. the presence of the court, the court shall set such fine Tipon every such man or talesman so making default (unless some reasonable excuse shall be proved by oath o r affida- vit), as the court shall think meet : providecl always, tlTat where any viewer, having been duly summoned to attend f ) iA,C't.''^/l^ on any juryTshall make defliult as aforesaid, the court is hereby authorized and required to set upon such viewer (unless some reasonable excuse shall be proved as afore- said) a fine to the amount of lo/. at the least, and as much more as the court, under tb.e circumstances of the parti- cular case, shall think proper. That every sheriff and other minister, to whom the return Sheriff indem- of juries shall belong, shalT" be' and is hereby. indemnifieiJ nified in letura- for impannellin.'x and returning any man named in the '"f '^"^ person — -K 1 -1 1^ 1 1 -^ S- \-CL J ■K■-,r^^ ,. whose name IS jurors book, although he may jjotjie-quahhed or lilrole to -^^ ^j^^ jj^j serve on juries; and that if any sheriff or other such (See7&8W.3. minister shall wilfully impannel and return any man to c. 32. s. 6.) serve on any jury before any of the courts in England or ^^'"^ returns Wales hereinbefore mentioned, (except on the grand jury ii^t.Tsee3G*2. at any assizes or_^eat sessions), such man's name jiot ^ 25. s. 3.) being inserted in the jurors book^for the current year, or if or if clerk of such book has not been d elivered,, then in the jurors book assize records last delivered, or if any cferk of assize, associate, prothono- |^!jfjjf ^hrparty taiy, clerk of the peace, or other officer of any of the ^jjj ^^j appear, courts aforesaid, shall wilfully record the appearance of any to be fined. man so summoned and returned, who did not really appear, g_ g.j in every such case the court shall and may, upon examina- tion in a summary way, set such fine uj^on such sheriff, minister, clerk of assize, associate, prothonotary, clerk of the peace, or other officer offending, as the court shall think meet. Tliat the sheriff, or his under-sheriff, shall from time to Sheriff, &c. to time register alphabetically, in proper columns, to be pre- register the pared in the jurors book for that purpose, the services of ^^'^f of J"rors 1 ' J- ,, , J 1 1 11 ^^ 1 X who have served; such men as shall be summoned and shall attend to serve /g^g 3 q 2. as jurors on trials, before any court of assize or nisi prius, c. 25. s.5.) oyer and terminer, or gaol delivery, or in the said courts and give cer- of the said counties palatine or great sessions, and also the tificates. times of their services ; and every man so summoned, and s. 40. having duly attended or served until discharged by the court, shall (upon application by him made to such sheriff or under-sheriff, before he shall depart from the place of trial,) receive a certificate testifying such his service, which certificate the sheriff or under-sheriff is hereby required to give on payment of \s.: provided always, that nothing herein contained shall extend to any grand jurors or spe- cial jurors. 2ftG Clerk of peace to make out a list of all who serve at sessions on grand or petty juries, and transmit tlie same to sheriff to register. Certificates of services to be given by clerk of peace, s. 41. Jurors not to be summoned again within certain periods to assizes. (See 3 G. 2. c. 25. s. 4. 4 G. 2. c. 7.) ■Nor to quarter sessions. s. 42. JUTllES. That the clerk of the peace, at every sessions of the peace to be Itolclen for any county, riding, or division in England or JVales, sliall mal:e out a Hst of such men as shall be summoned and shall attend to serve on any grand jury or petty jury at such sessions, together with their respective places of abode and additions, and the date of their ser- vices ; and shall, within tv»enty days after the close of every such sessions, transmit such list to the sheriff or under- sheriff of the county, who is hereby rctiuired lorFTvuill iJtjQl^ register the names of the men nicludecl in such Hst in the prope r colu mns or the iurorjJ^)Q4^ for that purpose, toge- thet'^'wT lTi tbe date ot the irservices ; and every man so summoned, and havins; li.iy ailenaeo" or served until dis- charged by the court of sessions, shall, upon application by him made to such clerk of the peace, before he shall depart from the place v.hcre the sessions are holden, receive a certificate, testifying such his service, which certificate the said clerk of the peace is hereby required to give, on payment of i 5. That no man shall be returned as a juror to serve at any session of nisi prius , or of gaol delivery, in the county of Middlesex, who has "served as a juror at either of such sessions in the said county, in either of the two terms or vacations next immediately preceding, and has the sheriff's certificate of having so served ; and no man shall be re- turned as a juror to serve on trials before an^_j£OurLaf as size^ nisi pr ius, oyer and termin er, o^ ^aol delivery , or any of t He_said courts of^ the three counties palatinei^or the said grea t sessions^ who has served as a juror at any of such courts within one year before, in Wales, or in the counties of Hereford, Cambridge, Huntingdon, or Rutland, /"o r four ye ars b efore i n t he cou nt y of Y o rk'^ or two years ^)efbre in any other county, and has the sheriff's certificate of having so served ; and iio man shall be returned to serve upon any grand jury or pettyjury at any sessions of the peace to be holden for any county, riding or division in Engla7id or Wales, who has served as a juror at any such session within one year before in Wales, or in the counties of Hereford, Ccimhridge, Huntingdon or Ridland, or two years before in any other county , and has the certificate of the clerk of die peace of having so served ^; and if any sheriff or other mmister shall wilfully transgress in any of the cases aforesaid, the court may and is hereby required, on examination and proof of every such offence in a sum- mary way, to set such fine upon every such offender as the court shall think meet : provided that nothing herein con- tained shall extend to grand jurors at the assizes or great sessions, or to special jurors. JURIES. 207 named in the warrant. s. 43. That no sheriff, undcr-sherifF, coroner, eHsor, baihfF or No nioney to other officer or person whatsoever, sliall, dlrectlj^ or in- g^j.^5g*^J^oJJj directly, take or receive any money or other reward, or serving. (See promise of money or reward, to excuse any man from 3 (j. 2. c. 2.5. serving or from being summoned to serve on juries, or s. G. under an}^ sucii colour or pretence ; and tliat no bailiff or None sum- other ofificer appointed by any sheriff, under-sheriff, coro- moncd but those ner or elisor, to summon juries, shall summor any man to serve thereon other than those whose names are specified in a warrant or mandate, signed by such sheriff, under- sheriff, coroner or elisor, and directed to such bailiff or other officer; and if any sheriff, under sheriff, coroner, elisor, bailiff or other officer, shall wilfully transgress in any of the cases aforesaid, or shall summon any juror, not being a special juror, less than ten days before the day on which he is to attend , or shall summon any special juror less than three days before the day on which he is to attend, except in the cases hereinbefore excepted, the court of assize, nisi prius, oyer and terminer, gaol delivery, great sessions, or superior court of the said counties pala- tine, or court of sessions of the peace, within whose juris- diction the offence shall have been committed, may and is hereby required, on examination and proof of such offence, in a summary way, to set s uch a fine upon every person so offending as the court shall think meet, accord- ing to tlie~nature of the offence. That if any high constable within the meaning of this Penalties on Act shall, for 14 days after the warrant of the clerk of the ';>g'^ constables 1 n , *^i 1 • 1 f. . 1 • II f. lor neelecting peace shall be served on hmi, or left at his usual place ot ^^ -^^^"^ f abode, refuse or neglect to issue and deliver his precept, cepts, &c. as hereinbefore directed, to the churchwardens and over- ^ ^^ seers of any parish, or to the overseers of any township within his constablewick ; or shall in like manner refuse or neglect to issue and deliver his precept to the churchwar- dens and overseers of any parish, or to the overseers of any township, where such parish or township extends into any other hundred, lathe, wapentake, or other like district besides his own, either in the same or a different county, (provided the principal church of such parish or township shall be situate within his own hundred, lathe, wapentake, or other like district) ; or shall refuse or neglect in any of the foregoing cases to annex to the respective precepts such a number of the forms of return as he shall hondjide deem sufficient, or to deliver such additional number as may be demanded of him by any churchwarden or over- seer as aforesaid, (provided he has such additional number in his possession,) or in case of his not so having them shall refuse or neglect to apply forthwith to the clerk of the peace for such additional number, and to deliver the 28» JURIES. same to tlic party so demanding witln'n three days after his receipt thereof"; or shall on due notice refuse or neg- lect to attend at any such petty sessions, or such adjourn- ment thereof as aforesaid, or to receive any Hst or lists there tendered by the justices present, or to deliver the same to the quarter sessions next holden for the county, riding or division, id the time and in the manner herein- before directed, or shall make any alteration in any such list after his receipt thereof; every such high constable offending in any of the foregoing cases shall for everj^ such offence forfeit a sum not exceeding lo/., nor less than 405., at the discretion of the justice before whom he shall be convicted. Penalties on That if any churchwarden or overseer of any parish, or churchwardens any overseer of any township within the meaning of this and overseers for /jct, shall refuse or neglect (unless prevented by sickness) nLj^Iecting to ^^ assist in making out any list required by this Act, so ^v^^^. ■' "' that the same shall not be made out at the time and in the s. 45. manner hereinbefore directed; or shall wilfully omit out of such list any man whose name ought to be inserted therein, or shall wilfully insert therein the name of any man who ought to be omitted, or shall take any money or other reward for omitting or inserting any man whatsoever, or .shall wilfully insert therein a wrong description of the name, place of abode, title, quality, calling, business, or the nature of the qualification of any man ; or shall refuse or neglect, in case the number of forms of return delivered by the high constable shall be insufficient, to apply to the high constable for a sufficient number, so that the list may be made out at the time and in the manner hereinbefore directed ; or shall refuse or neglect to fix a copy of such list, duly signed, or to subjoin thereto such notice as here- inbefore required, on the principal door of any church, chapel, or other public place of religious worship, within their respective parishes or townships, on any of the Sun- days on which the same ought to be so fixed ; or shall refuse to allow any inhabitant of their respective parishes or townships to inspect such list, or a true copy thereof, grnlis, at any reasonable time during the three weeks here- inbefore mentioned ; or shall, on due notice, refuse or neglect to produce such list at such petty sessions as aforesaid, or to answer on oath such questions touching the sameas shall there be put, or to attend at such petty sessions, or any such adjournment thereof as aforesaid ; or shall refuse to allow the said petty sessions, or any justice of the peace, upon due request, to inspect or make any extracts from the poor rate of any parish or township within their respective divisions, for the purposes hereinbefore mentioned, such rate being in the custody of the party so refusing ; every JURIES. '"^*-' such churchwarden or overseer offending in any of the fore- going cases, shall for every such offence forfeit a sum not exceeding lo I. nor less than 40 s., at the discretion of the justice before whom he shall be convicted ; and the justice before whom such offender shall be convicted of any such offence of wrongful insertion or omission, shall forthwith, in writing under his hand, certify the same to the clerk of the peace of the county, riding or division in which the man or men so wrongfully omitted or inserted shall reside, and the said clerk of the peace shall cause the list in which such wrongful insertion or omission shall have occurred, to be corrected according to such certificate, and shall also give notice thereof to the sheriff or under-sheriff, who shall cor- rect the jurors book accordingly. That if any clerk of the peace shall refuse or neglect to Penalties on cause a sufficient number, either of warrants, precepts, or ^[JU ^"^"j-^-f^^^ forms of return, to be printed in the manner hereinbefore neglecting their directed, or shall refuse or neglect to issue and deliver to duty. any higli constable within the meaning of this Act, the g. 40. warrant and precepts as hereinbefore directed, or to annex to the same such a number of the forms of return as he shall bonafde deem sufficient, or to deliver to any high con- stable such additional number thereof as he may apply for, within three days after such application ; or shall refuse or neglect to provide or prepare a jurors book within the time or in the manner and form hereinbefore prescribed, or to deliver the same to the sheriff or under-sheriff of the county within the time hereinbefore prescribed, or to give notice to the sheriff or under-sheriff of any wrongful insertion_or omission,~cei2ifiejrioJiim by any justice of the_ peace as aforesaid, o r to deliver to any ^nan who shall ha\,e been ^uinmoned and have duly attenHer or served as a grand juror, or petty jurori^ at the sessinns of the peace, a certi- ficate of such man's service, on his application and payment as aforesaid, or _to transmit to the sherifL_or under-sheriff alistpfthe men_who shall have been so summoned, and have so attended or served, within the time and in the manner hereinbefore directed ; or if any clerk of any such petty sessions, to be holden as aforesaid, shall refuse or neglect to give due notice thereof to any high constable, or to the churchwardens and overseers of any parish, or to the overseers of any township within such division ;|or jt'any I sheriff orundcr-slieriff^of a county shall make oMjSSSe to be "made"any alteration whatsoever in the list of jurors con- tained in the jurors book,^cept in consequence of the conviction of the churchwarden or overseer hereinbefore jj prbvided for; or if any sheriff or under-sheriff of a county, ,o\' any sheriff or secondary of London, shall neglect or 290 Juries de medie- tiiie. (See 27 Ed. 3 st.2. C.8. 28 Ed. 3. 8 H. 6. c ;. 13. 29.) s. 47. JURIES. refuse to provide or prepare a list of special j urors in the manner and within the Hme hereinbefore prescribed, or shall wilfully writej)r cause to be written therei n the name of any person not qua lified, or shall wilfully omit thereout the name of any person duly qualified as a special juror, or shall neglect or refuse to write or cause to be written the several numbers contained in such list upon distinct pieces of parchment^or^card, in the manner and within the time lierehibe'foreprescribed, or shall subtract or destroy, or by any default or neglect lose, any of the said pieces of parch- ment or card, or shall neglect or refuse, upon discovery of such loss, to supply the same with in five days;2or if any sheriff or under-s heriff of a county sliall refuse or neglect to prepare, or keep for inspection as aforesaid, a copy of th e pa nel in the cases hereinbefore provided for, or to register the service of any ju ror as hereinbefore directed, orTo^eliver to any man who shall have been summoned, an3 haveTIuly attended or served as ajuror at any court of assize, nisi prius, oyer and terminer, or gaol delivery, or in any of the said courts of the three counties palatine or great sessions, a certi ficate of ^ ucIl man's service, on his applica- tion and paymenFas aforesaid ;2or^shall_refuse or neglect, witliin ten days a fter the next succeeding sheriff shall be sworn into or have entered upon office, Jojleliver over to him, as well all^thejurors books and lists that shall be made or prepared in the year of his sheriffalty, as also all such other like books and lists as were prepared in the sheriffalty of any of his predecessors, within four years then next pre- ceding, and which were delivered over to him by any of his predecessors ; every such clerk of the peace, clerk of the petty sessions, sheriff or under-sheriff, sheriff of London or secondary, offending in any of the said cases, shall for every such offence ^forfeit the sum o^^^., one moiety whereof shall be to the use of His Majesfy, his heirs or suc- cessors, and the other moiety, with full costs, to such per- son as shall sue for the same, in any of His Majesty's courts of record at Westminster, by action of debt, bill, plaint, or information, wherein no essoign, protection or wager of law, nor more than one imparlance, shall be allowed. That nothing shall extend or be construed to extend to deprive any alien indicted or impeached of any felony or misdemeanor of the right of being tried by a jury de medietate linguce, but that on the prayer of every alien so indicted or impeached, the sheriff or other proper minister shall, by command of the court, return for one half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not, then so many aliens as shall be found in the same town or place, JURIES. 2.01 if any ; and that no such ahen juror shall be liable to be challenged for want of freehold or of any other qualification required by this Act ; but every such alien may be chal- lenged for any other cause, in like manner as if he were qualified by this Act. That no justice of the peace shall be summoned or im- i^"s„^ino°e,j^as pannelled as a juror, to serve at any sessions of the peace jurors at sessions. for the jurisdiction of which he is a justice. s. 18. That the inhabitants of the city and liberty of Westmin- Inhabitants of ster shall be and are hereby exempted from serving on any ^ ^^y^^ ^l^l^a at jury at the sessions of the peace for the county of Middle- i\ii,id. sessions. sex. (7 & 8 W. 3. c. 32. 3. 9.) s. 49. That the qualification required for jurors, and the regu- Qualification of lations for procuring lists of persons liable to serve on jurors in liber- iuries, shall not extend to the jurors or juries in any liber- ^^^' *^'J"^* ^"^^^ • ••• noroiicrhs to r6~ ties, franchises, cities, boroughs or towns corporate not main as before. being counties, or in any cities, boroughs or towns being counties of themselves, which shall respectively possess any jurisdiction, civil or criminal ; but that in all such places, the sheriffs, bailiffs, or other ministers having the return of juries, shall prepare their panels in the manner heretofore accustomed ; Provided always, that no man shall be im- Qualification pannelled or returned by the sheriffs of the city of London, i" London. as a juror to tr3'any issue joined in His Majesty's courts of ^^f*l^ loS record at Westminster, or to serve on any jury at the ses- ^' '^' ^ sions of oyer and terminer, gaol delivery, or sessions of the peace, to be held for the said city, who shall not be a householder, or the occupier of a shop, warehouse, count- ing-house, chambers or office, for the purpose of trade or commerce, within the said city, and have lands, tenements or personal estate of the value of loo/. ; and that the lists of men resident in each ward of the city of London, who shall be so qualified as herein mentioned, shall be made out, with the proper quality or addition and the place of abode of each man, by the parties who have heretofore been used and accustomed in each ward to make out the same respec- tively ; and that such shop, warehouse, counting-house, chambers or office as aforesaid shall, for the purposes of /^ q 2. c. 2i>. this Act, be respectively deemed and taken to be the place s. 29.) of abode of every occupier thereof : Provided also, that no Persons, unless man shall be impannelled or returned to serve on any jury qualified to serve for the trial of any capital offence in any county, city or ^* jurors in civil place, who shall not be qualified to serve as a juror in civil ^^^^^g^J^ned to causes within the same county, city or place ; and the same serve on trials matter and cause being alleged by way of challenge, and so for capital found, shall be admitted and taken as a principal chal- offences. lenge ; and the person so challenged shall and may be s. 50. examined on oath of the truth of the said matter. u 2 292 Courts of Nisi Prius, &:c. in London may fine jurors. s. 61. Qualification of jurors on inquests. Sue. s. 52. SherifTs, coro- ners, and com- missioners may fine jurors for non-attendance. JURIES. That every court of nisi prius, oyer and terminer, gaol delivery and sessions of the peace, held for the city of London, shall and may fine any man duly summoned to attend upon any kind of jury in any of such courts respec- tively, and making default, or any talesman or viewer making default, in the same manner to all intents and pur- poses as such respective courts in England and Wales here- inbefore mentioned. That no man shall be liable to be summoned or impan- nelled to serve as a juror in any county in England or Wales, or in London, upon any inquest or inquiry to be taken or made by o r before an y shpri flf' nr rnroner. by vir- tue of any writ of inqui ry, or by or before any commissioners appointed under the Great Seal, or the seal of the court of Exchequer, or the seals of the courts of the said counties palatine, or the seals of the courts of great session of Wales, who shall not be duly qualified according to this Act to serve as a juror upon trials at nisi prius in such county in England ov Wales, or in London, respectively: provided always, that nothing herein contained shall extend to any inquest to be taken by or before a ny corone r of a county, by virtue of his office, or to any inquest or inquiry to be taken or made by or before any sheriff or coroner of any liberty, franchise, city, borough or town corporate, not being counties, or of any city, borough or town being respectively counties of themselves, but that the coroners in all counties, when acting otherwise than under a writ of inquiry, and the sheriffs and coroners in all such places as are herein mentioned, shall and may respectively take and make all inquests and inquiries by jurors of the same description as they have been used and accustomed to do before the passing of this Act. That if any man having been duly summoned and re- turned to serve as a juror in any county in England or Wales, or in London, upon any inquest or inquiry before any sher iff or coroner, or before any of the commissioners aforesaid, shall not, after being openly called thcfie times, appear and serve as suchjuror, every such sheriff, or in his absence th e under-slieriff or secondary, and such coroner and commissioners respectively, are hereby authorized and required (unless some reasonable excuse shall be^roved on oath or affidavit) to impose such fine upon every man so making default as they shall respectively think fit, not exceeding 5 /. ; and every such sherij[, under-sheriff, se- condary, coroner and commissioners respectively, shall "make out and sign a certi ficate , containing the christian and _siiriiaa^e, the residence and trade or calling of eyery__ man go making default^ together with the amount of the fine JURIES. 2!i)3 4. 53. on juries in in- ferior courts not attending, (see 29 G. 2. imi)Osecl, and the cause of_such_fine, and sluill transmit suclicaiificMiLlQjthe^ clerk i^ lor the county, riding or division^ in which every such defaulter shall reside, on or before the_first_day of the ^iiajtei^essioris next^n_- SLiJng; and every s uch cle rk of the peace is hereby required ("^J^^^- To copy the fiiies so certifieJ' on tlic roll on which all fines ^' •> ami forfeitures iniposed,, at such quamn- sessions shall b£_ coj)ied ; and the same shall be estreated, levied and applied In like manner, and subject to the like powers, provisions^ and penalties, in all respects, as if they had been part of the fines iniposed at such quarter sessions. iKiat every man duly summoned and returned to serve Persons sum- upon any jury for the trial of any cause or criminal prose- moned to serve cution, to be tried in any court of record holden witliin the said city of London, other than the courts herein- before respectively mentioned, or in any other liberty, franchise, city, borough, or town, who shall not appear and c. 19.) to forfeit serve on such jury (after being openly called three times, not more than and on proof being made on oath of the man so making ^^^^^ ^jj''^ ^^^Jj^^^ default having been duly summoned), shall forfeit and pay, ^j^g court be for every such his default, such fine, not exceeding 40 *•. satisfied with nor less than 20 s. as the court shall deem reasonable to the cause of impose, unless some just cause for such defaulter's absence absence. shall be made appear, by oath or affidavit, to the satisfac- tion of the court ; and that if any person on whom such fine shall be iniposed shall refuse to pay the same to the person who shall be authorized by the court to receive the same, it shall be lawful for such court then, or at its next sitting, and the same is hereby authorized and required, by order of the court, signed by the proper officer thereof, to cause every such fine to be levied by distress and sale of Y'me leviable by the goods and chattels of the person on whom such fine distress and sale, shall have been imposed ; and the overplus money, if any, which shall remain after payment of such fine, and deduct- ing the reasonable charges of such distress and sale, shall be rendered to the person whose goods and chattels shall have been so distrained and sold ; and that every fine Fine to be paid which shall be so iniposed shall, when received or levied, to the proper be paid by the person who shall receive or levy the same officer of the to the proper officer of the liberty, &c. in which the court posed of as^otbe'r was holden wherein such fine was imposed, to be applied fines of court.. to such uses as issues set on jurors, or other fines set in ^ g^ courts holden witliin such liberty, &c., are by charter, prescription, or usage applicable. That all fines to be imposed under this act by any of How fines and the_Jiin£^s_courts of record at Westminster, or any of the penalties shall superior coui-ts," civil "6F criminal, of the three counties l>e recovered ', . r - , (' • ... 1 and applied. palatme, or by aiij court of assize, nisi J>nus, oyer and 5 55 * ^ ■ u 3 21)4 s. 50. Form of coaviction. Convielion not to be quashed for want of form, s. 57, Jl lUKS. lorniiner, or gaol delivery, or by an y court of sessions of tlie peace in England, or by any court of great sessions or sessions of the peace in Wales, shall be levied and applied in the same manner as any other fines impose d by the same cou rt ; /aiid that all other penalties hereby created (tor which no other remedy is given) shall on conviction of the offender before a ny one i ustice of the peace within his jurisdiction, be levied, unless such penalty be forthwith paid, by distress and sale of the offender's goods and chat- tels, by warrant under the hand seal of such justice, who is hereby authorized to hear and examine witnesses on oath or aflirmation on any complaint, and to determine the same, and tqjmitigate the penalty, if he shall see fit, to the ext^nt_o£onemoiety thereof; and all penalties, the appli- cation whereof is not herein-before particularly directed, shall be paid to the complainant ; and for want of sufficient distress, the offender^ shall be committed, by warrant under the hand and seal of such justice, to the common gaol or house of correction, for such term not exceeding six calendar months, as such justice shall think proper, unless such penalty be sooner paid. And for the more easy and speedy conviction of offen- ders against this act, it is further enacted, that the justice before whom any person shall be convicted of any offence against this act, shall and may cause the conviction to be drawn up in the following form of words, or in any other form of words to the same effect, as the case shall happen ; videlicet, " BE it remembered, that on in the " year of Lord at A. B. is convicted " before me, C. D., one of His Majesty's justices of the *' peace for the of , for that he the said " A. B. did [specifj/ing the offence, and the time and place " tvhere the same ivas committed, as the case shall be], and " the said A. B. is for his said offence adjudged by me " the said justice to forfeit and pay the sum of " Given under my hand and seal the day and year first " above mentioned." That no such conviction shall be quashed for want of form, or be removed or removable by certiorari, or by any other writ or process whatsoever, into any of His Majesty's courts of record at Westminster ; and that where any dis- tress shall be made for any penalty to be levied by virtue of this act, the distress itself shall not be deemed to be unlawful, nor the party making the same be deemed a tres- passer, on account of any defect or want of form in the summons, conviction, warrant of distress, or other proceed- ings relating thereto, nor shall such party be deemed a JURIES. trespasser ab initio on account of any irregularity which shall be afterwards done by liini ; but the person aggrieved by such irregularity shall and may recover full satisfaction for the special damage (if any) in an action upon the case, first giving notice in writing of the cause of action to the opposite party, one calendar month before the commence- ment of such action ; but no plaintiff shall recover in any action for such irregularity, if tender of sufficient amends shall have been made before such action brought, or if a suffi- cient sum of money shall have been paid into court after such action brought by or on behalf of the party distraining. That if any suit or action shall be prosecuted against any person for any thing done in pursuance of this act, such person may plead the general issue, and give this act and the special matter in evidence at any trial to be had thereupon ; and if a verdict shall pass for the defend- ant, or the plaintiff shall become nonsuit, or discontinue his or her action after issue joined, or if upon demurrer or otherwise judgment shall be given against the plaintiff, the defendant shall recover double costs, and have the like remedy for the same as any defendant hath by hnv in other cases ; and though a verdict shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the judge before whom the trial shall be shall certify his approbation of the action, and of the verdict obtained thereupon. That all actions, suits, and prosecutions, to be com- menced against any person for any thing done in pursu- ance of this act, shall be laid and tried in the county where the fact was committed, and shall be commenced within six calendar months after the fact committed, and not otherwise ; and that notice in writing of such cause of action shall be given to the defendant or defendants one calendar month at least before the commencement of the action. That from and after the passing of this act, it shall not be lawful either for the king, or any one on his behalf, or for any party or parties, in any case whatsoever, to com- mence or prosecute any writ of attaint against any jury or jurors, for the verdict by them given, or against the party or parties who shall have judgment upon such verdict; and that no inquest shall be taken to inquire of the con- cealments of other inquests ; but that all such attaints and inquests shall henceforth cease, become void, and be utterly abolished ; any law, statute or usage to the contrary not- withstanding. That notwithstanding any thing herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent u4 *2U.'> s. 57. Persons sued for any thing done in pur- suance of this Act may plead the general issue. s. 58. Venue to be laid in tlie county where the fact is com- mitted. s. 69. Writs of attaint to be abolished. s. GO. Emljraccrs and corrupt jurors punishable by •200 fine ami imnri- sonment. s. Gl. Commencement of Act. s. 62. Eepeal of Acts. 43 II. 3. 52 II. 3. c. 14. 12 Ed. 1. 13 Ed. 1. c. 30. 28 Ed. 1. C.9. 34 Ed. I. c. 3. 5 Ed. 3. c. C. 27 Ed. 3. St. 2. c. 8. 28 Ed. 3. c. 13. 34 Ed. 3. c. 4. c. 1.3. JURIES. thereto, shall and may be respectively proceeded against by indictment or information, and be punished by fine and imprisonment^ in like manner as every such person and juror mit^ht have been before the passing of this act. That those parts of this act which relate to the issuing of warrants and precepts for the return of jury lists, the preparation, production, reformation, and allowance of those lists, the holding of the petty sessions for those pur- poses, the formation of a jurors book, and the delivery thereof to the sheriff, and the preparation of a list of spe- cial jurors, and of parchments or cards, in the manner hereinbefore mentioned, shall commence and take effect so soon after the passing of this act as the proper periods for doing those things shall occur ; and that the rest of this act shall commence and take effect on the 1st Januarij 1826 ; and that from and after the commencement of the several parts of this act respectively, so much of 43 H. 3. as relates to exemptions from assizes, juries, and inquests ; and so much of 52 H. 3, c. 14, as relates to the like ex- emptions ; and so much of the same statute as provides that all, being 12 years of age, ought to appear at inquests for the death of man ; and so much of the 1 2 Ed. 1 . as relates to persons of 12 years of age being summoned upon coro- ners' inquests ; and so much of 1 3 Ed. 1 . c. 30, as directs that the justices shall not put in assizes or juries any other than those that were summoned to the same at first ; and so much of the same statute as ordains how many and what sort of persons shall be returned on juries and petty as- sizes ; and the 21st of the same reign, intituled, Statidum de illis qui debent poni in Juratis et Assizis ; and so much of 28 Ed. 1. c. g, as declares how inquests and juries are to be impannelled ; and the ordinance made in the 33d year of the same reign ; and so much of 34 Ed. 1 . c 3, as enjoins that none of the ministers therein mentioned be put in assizes, juries, or inquests without the forest; and so much of 5 Ed. 3, c. 6, as relates to the punishment of a corrupt juror ; and so much of a statute, made in the 20th year of the same reign, as relates to the punishment of embracers and corrupt jurors; and so much of 27 Ed. 3. st. 2. c. 8, as prescribes the mode of trial wheie one party or both parties are aliens; and so much of 28 Ed. 3. c. 13, as directs how all manner of inquests and proofs shall be taken between aliens and denizens ; and so much of 34 Ed. 3. c 4, as accords that panels of inquests shall be of the neighbourhood ; and so much thereof as directs the pro- ceedings against jurors taking a reward to give their ver- dict ; and so much thereof as relates to the qualification of jurors on inquests of escheat ; and so much of 36 Ed. 3. .luiiiES. 207 St, 1. c. 13, as relates to jurors on inquests of escheat; 3G I'd. 3. st. 1. and so much of 38 Ed. 3. st. 1. c. 12, as ordains the ^- ^'^■ penalty on corrupt jurors and embracers; and so much of ^^ Kd. 3. st. 1. 42 Ed. 3. c. 11, as directs that panels in assizes shall be ^' 7 arrayed four days before the sessions, and what sort of . -c. 11. jurors shall be put therein; and so much of 7 lUc. 2. c. 7. 7 Ric. 2. c. 7. as relates to granting a writ of nisi prius at the suit of any jurors ; and so much of 11 H. 4. c. g. as directs that jurors II H. 4. c. 9. in indictments shall be returned by the sheriffs or bailiifs, without the domination of any; and so much of 2 //. 5. 2n.5.st.2. c. 3. St. 2. c. 3, as relates to the qualification of jurors ; and so much of 6 H. 6. c. 2, as relates to the panels in special G II. c. c. 2. assizes ; and so much of 8 H. 6. c. 29. as relates to inquests 8 H. G. c. 2!). and proofs taken between aliens and denizens ; and so much of 23 H. (i, c. g. as ordains that no sheriff or under-sheriff 23 11. G. c. 9. shall return any of their officers or servants in any of the cases therein mentioned ; and so much of 33 i/. 6. c 2. as 33 II. G. c. 2. relates to the qualification of jurors taking indictments, in the county palatine of Lancaster, and in other counties ; and so much of 8 Ed. 4. c. 3. as relates to jurors in Middlesex ; and 8 Ed, 4. c. 3. 1 Ric. 3. c. 4. intituled, An act for returning of sufficient 1 Ric. 3. c. 4. jurors ; and ig H. 7. c. 13. intituled, De Riotis Rej^rimendis ; 19 H. 7. c. 13. and so much of 1 //• 8. c. 8. as enacts what qualification 1 H. 8. c. 8. every juror returned before escheators or commissioners of the crown shall have within the same shire where the inquiry shall be made ; and so much of 3 //. 8. c. 2. to perpetuate 3 II. 8 c. 2. the last mentioned Act, as perpetuates that part thereof which is therein referred to ; and 3 H. 8. c. 12. intituled, c. 12. An act against sheriffs for abuses ; and so much of 4 H. 8. 4 II. 8. c. 3. c. 3. intituled, Poiir le Juris infra Civitatem London ; and of 5 H. 8. c. 5. intituled, An act concerning juries in Lon- 5 II. 8. c. 5. don, as relates to jurors impannelled for the trial of issues joined in any of the courts at Westminster, and triable in the city o^ London ; and so much of 5 H. 8. c. 6. as relates c. 6. to juries; and so much of 22 H. 8. c. 14. s. 6. as relates to 22 H. 8. c. 14. peremptory challenges in murder and felony ; and so much of s. 6. 33 H. 8. c. 23. s. 2. as relates to challenges for want of free- 33II.8.c.23.s.2. hold; and so much of 34 & 35 H. 8. c. 26. s. 103, 7. 8. as 34 & 35 H. 8. relates to tales, and to the qualification of jurors in the c.2G.s. 103.7.8. cases therein mentioned ; and the 35 H. 8. c. 6. intituled, 35 H. 8. c. G. An act concerning the appearance of jurors in the Nisi Prius; and so much of 1 Ed. 6. c. 12. s. ]i. as relates lEd.G.c.l2.s.ll. to challenges for the hundred; and so much of 2 & 3 Ed. 6. 2&3 Ed.6.c.32. c. 32. as relates to the said Act of 35 H. 8. ; and the 4th & 5th P. & M. c. 7. intituled, An act to make up the jury 4P &M. c. 7. de circumslantibus, where the King and Queen's majesty is a party; and the 5th El. c. 45. intituled. An act to fill up 5 El. c. 45. juries de circumstantibus lacking in Wales ; and the 14th El. 14 El. c. 9. c. g. intituled, An act declaring that the tenant and dc- 2l>8 JLUIES. fendant may have a tales de circumstanlibiis, as well as the 21 El. c. (i. 7. donaiulant or plaintiff; and the 27 El c. 6 & 7. the one ii'titL'.led, An act for the returning of sufficient jurors, and for the better expedition of trials ; and the other intituled An act for the levying of issues lost by jurors; and so much 39E1.C.18 S.32. of 39 El. c. 18. s. 32. as relates to the said last-mentioned 1 \\ , i^ i\l. St. 2. Act ; and so much of 1 W. & M. st. 2. c. 2. s. 1 . as declares c. 2. that jurors which pass upon men in trials for high treason 4 & 5 W. & i\I. ought to be freeholders ; and so much of 4 & 5 W. &. M. c. 24. s. 15.22. c. 24. s. 15 to 22, as relates to jurors; and so much of CitTWAM.c 4. 6 & 7 ?r. & M. c. 4. as relates to juries ; and the 7th & 8th 7 6c 8 W. & M. W. & M. c. 32. intituled, An act for the ease of jurors, and c. 32. better regulating of juries ; and so much of 1 Ann. st. 2. 1 Ann. St. 2. c. 13. s. 2, 3. as continues the said Act of 7 & 8 W. 3 ; f. 13. s. 2. 3. and also so much thereof as relates to the qualification of 3X4 Ann. c 18. jurors in the county of York ; and so much of 3 & 4 Ann. \ A ^ ifi c. 18. s. 3 to 6. as relates to jurors ; and so much of 4 Ann. g 6 9. ^- 16. s. 6 to g. as relates to writs of venire Jacias, and to 7 Ann. c. 21. jurors having the view; and so much of 7 Ann. c.i\. s. 11. as s. 11. relates to giving a list of the jury to the party indicted of high 10 Ann. c. 14. treason or misprision of treason ; and so much of 10 Ann. s- 3. 0. c. 14. s. 3 to 6, as relates to juries and jurors ; and so much 9G.1.C.8.S.1.2. of 9 Geo. 1. c. 8. s. 1 &2. as relates to jurors and juries ; and 3 Geo. 2. c. 25. the 3 Geo. 2. c. 25. intituled, An act for the better regulation 4 Geo. 2. c. 7. of juries; and the 4th G. 2. c. 7. intituled. An act to explain and amend an Act made in the 3d year of His Majesty's reign, intituled, An act for the better regulation of juries, so far as the same relates to the county of Middlesex ; and so C Geo. 2. c. 37. much of 6 G. 2. c. 37. s. 1 & 2. as makes the said Acts of the ^•^'^- 3d (^ 4th years of the same reign perpetual, and as relates to 24Geo,2. c. 18. special juries ; and so much of 24 G. 2, c 18. as relates to special juries and writs o{ venire facias and challenges of the 29 Geo. 2. c. 19. array; and the '29 G- 2. c. 19. intituled, An act to empower judges of courts of record in cities and towns corporate, liber- ties and franchises, to set fines on persons who shall be sum- moned to serve upon juries in such courts, and shall neglect to 13 Geo. 3. col. attend ; and so much of 13 G. 3. c. 51. s. 6 to 8. as relates ^- ^•^^•, to special juries; and the 1 & 2 G. 4. c 46. intituled, An c ^6 ^*^° ^ ^^^ *^ regulate the attendance of jurors at the assizes, in 5*Geo.4.c.l06. certain cases; and so much of 5 G. 4. c. 106. s. 29. as s. 29. relates to the qualification of jurors ; shall be, and the same are hereby repealed. Provided always, that nothing shall be construed to die Acts rekting '^^ff^ct or alter any part of the 7th and 8th W. 3. c. 34- and to Quakers ancT of the 22d G. 2. c. 30, relating to Quakers and Moi-avians. Moravians. (7 & 8 W. 3. c. 34. 22 G. 2. c 30.) s. 63. Not to affect Provided also, that nothing shall extend or be construed powers unre- to extend to alter, abridge or affect any power or authority pealed. which any court or judge now hath, or any practice or form .HI U IKS. 299 in regard to trials by jury, jury process, juries or jurors, except in tliose cases only where any such power or autho- rity, practice or form, is repealed or altered by this Act, or is or shall be inconsistent with any of the provisions thereof, nor to abridge or affect any privilege of parliament. Warrant for returning Lists of Jurors, (under 6 G. 4. c. 50.) County of ]T0 the high constable [or to to wit, /one of the high constables] of the hundred, [lathe, wapentake, or other like district] of within the county aforesaid. These are to require you, within fourteen days after the receipt hereof, to issue and deliver (in the form hereunto annexed, or as near thereto as may be,) your precepts to the churchwardens and overseers of the poor of the several parishes, and to the overseers of the poor of the several townships within your constablewick, requiring them to make out and return true lists of jurors ; and you are at the same time to annex to each precept a sufficient number of the forms of returns left herewith, and if you find that the number now left with you is not sufficient for all the places in your constablewick you are to apply to me for more ; and you are further required to attend at a petty sessions in the last week of September next, (of which you shall have due notice,) and such lists as you shall there receive you are to deliver to the next court of quarter sessions for this county, [riding or division,] on the first day of its sitting, and at the same time to make oath of your receipt of such lists, and that no alteration has been made therein since your receipt of them. If there is any parish within your constablewick that has no overseers of the poor except the churchwardens, you are in such case to treat them as the churchwardens and overseers of such parish, and to direct your precept, toge- ther with a sufficient number of forms of return, to them accordingly ; and if there is any parish or township which extends into any other constablewick besides your own, you are to treat every such parish or township as within your constablewick, provided the principal church of such parish or township is situated within your constablewick, and you are to issue your precepts, with a sufficient num- ber of forms of return, accordingly ; and these several matters you are in nowise to omit, upon the peril that shall ensue. Given under my hand, at in the said county, the day of in the year Clerk of the peace for the said county [riding or division.] 'MO JURIKS, Precept for returning Lists of Jurors. of County of ~1 TO the churchwardens and overseers to wit. > the poor of the parish [or to the ov^.^ Hundred of J seers of the poor of the township] of By virtue of a warrant from the clerk of the peace of the said county [riding or division] unto me directed, you are hereby required to make out, before the 1st day of Sep- tember next, a true Hst in writing, in the form hereunto annexed, containing the names of all men, being natural - born subjects of the king, between the ages of 21 and 60, residing within your parish [or township], qualified to serve upon juries ; that is say, of every such man who has in his own name, or in trust for him, a clear income of 10/. by the year in lands or tenements, whether of freehold, copy- hold or customary tenure or of ancient demesne, situate in the said county, or in rents issuing out of any such lands or tenements, or in such lands, tenements and rents taken together, in fee-simple or fee-tail, or for his own life, or for the life of any other person ; and also of every such man who has a clear income of 20/. by the year in lands or tenements, situate in the said county, held by lease for the absolute term of 2 1 years, or some longer term, or for any term of years determinable on any life or lives ; and also of every such man who is a householder in your parish [or township], and is rated or assessed to the poor rate or to to the inhabited house duty on a value of not less than 20/. [if in Middlesex 30Z. ], and also of every such man who occupies a house in your parish [or township] con- taining not less than 15 windows; and you are required to make out the said list in alphabetical order, and to write the christian and surname of every man at full length, and the place of his abode, his title, quality, calling or business, and the nature of his qualification, in the proper columns of the forms hereunto annexed, according to the specimens given in such columns for your guidance. And if you have not a sufficient number of forms you must apply to me for more ; and in order to assist you in making out the list, you are to refer to the poor rate, and you may, if you think proper, api)ly to any collector or assessor of taxes, or any other officer who has the cus- tody of any house-tax, land-tax, or other tax assessment for your parish [or township], and takt; from thence the names of men so qualified : and in making such list you are to omit the names of all peers, all judges, all clergy- men, all Roman-catholic priests who shall have duly taken and subscribed the oaths and declaration required by law ; JUKIES. 801 all ministers of any congregation of Protestant Dissenters whose place of meeting is duly registered, "provided they follow no secular occupation except that of a schoolmas- ter, and produce to you a certificate of some justice of the peace of their having taken the oaths and subscribed the declaration required by law ; all Serjeants and barristers at law, all members of the society of Doctors of Law, and all advocates of the civil law, if actually practising, and all attornies, solicitors and proctors, if actually practising, and having taken out their annual certificates ; all officers of the courts of law and equity, and of the Admiralty and Ecclesiastical courts, if actually exercising the duties of their respective offices ; all coroners, all gaolers and keepers of houses of correction ; all members and licentiates of the Royal College of Physicians in London, all members of the Royal Colleges of Surgeons in London, Edinburgh and 1)1'.})- lin, and apothecaries certificated by the court of Examiners of the Apothecaries Company, if actually practising as phy- sicians, surgeons or apothecaries respectively ; all officers of the navy and army on full pay ; all pilots licensed by by the Trinity- house of Deptford Strond, Kingston-upon- Hidl, or Nc-Mcastle-upon-Tyne, and all iiiasters of vessels in the buoy and light service employed by either of those Corporations, and all pilots licensed by the lord warden of the Cinque Ports, or under any act of parliament or charter for the regulation of pilots in any other port ; all the household servants of His Majesty ; all officers of customs and excise ; all sheriff's officers, high constables and parish clerks ; and also all persons exempt by virtue of any pre- scription, charter, grant or writ. And when you have made out such list, you are autho- rized to order a sufficient number of copies thereof to be printed, [the expense of which printing will be allowed you by the parish {or township], and you are required, on the three first Sundays in September next, to fix a copy of such list, signed by you, on the principal door of every church, chapel, or other public place of religious worship within your parish [or township], and also to subjoin to every such copy a notice to the following effect, inserting the time and place, of which you shall be previously informed : '* Take notice, that all objections to the foregoing list will be heard by the justices in petty sessions, on the day of September next, at the hour of at ;" and you must allow any inhabitant of your parish [or town- ship] to inspect the original list, or a true copy of it, during the three first weeks of September next, gratis ; and you are also further required to produce the said list at such petty sessions, and there to answer, on oath, such questions as 302 G G. 4. c, 50. SESSIONS. shall be put to you by His Majesty's justices of the peace there present, touching the said list; and these several matters you are in nowise to omit, upon the peril that may ensue. Given under my hand at in the said county, the day of in the year High constable. The Form of Precept in Wales is to be altered according the difference of qualification. Form of Return. County of 1 THE return of the churchwardens and to wit. /overseers \or of the overseers] of the of in the hundred of in the said county, of men qualified to serve on juries. Parish or Townsliip ; Christian and Title, Quality, Calling, Nature of Qualification. in Towns, add the Name of the Street. Surname at full length. or Business. All Saints, Derby : King-street Adams, John - Esquire Freehold. Duke-street Bond, Henry - Baker Leasehold. High-street - Royd, George Grocer Poor Rate. Duke street Cole, Charles - Butcher House Assessment Church-street Cook, John Innkeeper - Windows. Sessions, what. Difference be- tween general, quarter, and special sessions. The sheriff cannot claim any compensation for sum- moning special jurors, nor extra expenses when they live at a distance, it being a part of his general duty (a). Sessions. 'X'HE sessions of the peace is a court of record, holden before two or more justices, whereof one is of tlie quorum, for execution of the authority given them by the commission of the peace, and certain statutes and acts of parliament (b). It seems that the general sessions and quarter sessions are not synonymous ; but that the quarter sessions are (a) Lane r. Sewell, 1 Ch. 175. (/>) Dalt. 5. SESSIONS. 30;3 a species only of the general sessions, and that such sessions only are properly called general quarter sessions which are holden in the four quarters of the year, in pur- suance of the 2 H. b; and that any other sessions, holden at any other time for the general execution of the justices authority, which by the said statute they are authorized to hold oftener than at the times therein spe- fied, if need be, may be properly called general sessions, and that those holden on a special occasion for the exe- cution of some particular branch of their authority, may properly be called sjjecial sessions (c). By the 12 JR. 2, the justices shall keep their sessions c. lo. in every quarter of the year at least, and by three days, ^hg^p^J™'' if need be, on pain of being punished according to the shall be kept. discretion of the king's council, at the suit of every man that will complain. By the 11 Geo. 4, 8cl W. 4, the justices shall hold c. 70, s. 35. their general quarter sessions of the peace in the first week after the 11th day of October, in the first week after the 28th day of Decemher, in the first week after the 31st day of Jtfarc/?, and in the first week after the 24th day of June. " County of J. P. and K. P. esquires, justices of Precept to our sovereign lord the king, assigned to keep the peace J^"^'/^'°'^ fj^";^ « in the county of aforesaid, and also to hear and the justices to " determine divers felonies, trespasses, and other misde- the sheiifF. " meanors committed in the said county, and one of us of " the quorum ; to the sheriff of the same county, greeting : " On die behalf of our said sovereign lord the king, we <' command you, that you omit not, by reason of any " liberty in your county, but that you enter therein, and " that you cause to come before us, or others, justices " assigned to keep the peace in the said county, and also " to hear and determine divers felonies, trespasses, and " other misdemeanors in the said county committed, on « the day of now next ensuing, " at the hour of ten in the forenoon of the same day, at « in the said county, twenty-four good and lawful " men of the body of the county aforesaid, then and there " to inquire, present, do, and perform all and singular such " things, which on the behalf of our said sovereign lord the " king shall be enjoined them : also that you make known <' to all coroners, keepers of gaols and houses of correction, " high constables, and bailiffs of liberties, within the county " aforesaid, that they be then diere to do and fulfil those (r) 2 Hawk. 42. 304 The sheriff's return. Sherlffto pro- vide a place to hold the session. And convey offenders to the gaol. Ought also to attend ; and for wiiy. Upon receipt of precept to summon quarter sessions, how to act. SESSIONS. " things Mliich by reason of their offices shall be to be " done : moreover, that you cause to be proclaimed " through the said county, in proper places, the aforesaid •' sessions of the peace to be held at the day and place " aforesaid ; and do you be then there to do and execute " those things which belong to your office : and have you " then there as well the names of the jurors, coroners, " keepers of gaols and houses of correction, high consta- " hies, and bailiffs aforesaid, as also this precept. Given " under our seals at A. in the county aforesaid, the " day of in the year of the reign of (S;c. "(ns"t- where the sheriff can- not have sight of the thini'. If sheriff put in bail before expiration of rule to bring in body, it is sufficient. On arrest sheriff took bail and returned cepi ; and return was good. Case lies for making other return than that received. On returning bailiff's answer, if untnie, action against bailiff. The declaration rALSE RETURN OF WRIT. make no other return : for lie is not to take him to falsify the writ (??). No action for a false return will lie against the sheriff for returnins; an elongat. in any case where he cannot have sight of the thincj to be replevied, because he can make no other return ; but if such an action could, the taking an inquisition would not have prevented it ; for it is not a sheriff's taking an inquisition, where it does not lie, will protect him from an action (o). If a sheriff, after having arrested a party, suffer him to go at large without taking a bail-bond, and return cepi corpus, and before the expiration of the rule to bring in the body put in bail, it is decided, that the sheriff is not liable to an action for a false return, or for an escape {p). Upon an arrest, sheriff took bail and returned cepi cor- pus, plaintiff brought an action for a false return, but adjudged a good return, because, by 23 H. 6, he is com- pelled to take bail, and the statute has made no alteration of the return {q). An action on the case lies against a sheriff for making other return than is returned to him by a liberty or bailiff of a franchise, who had retorna hrevium (r). And if a sheriff returns the bailiff's answer, and it is untrue, an action lies against the bailiff, and not against the sheriff. For the sheriff ought to accept the return of the bailiff, and not examine the reality of it (if it be suf- ficient in law {s). The sheriff is bound to execute the process of the law in the most effectual way ; if a person against whom a party had a writ, did not abscond, but continued in the daily exercise of his usual occupation, appearing publicly as usual, was visible to every person that came to him about business, and the bailiff neglected to arrest him, and returned non est inventus, such was unquestionably a false return {t). In an action for a false return the declaration should state, that plaintiff had good cause of action against the defendant in the original action, by stating that he was indebted to him for money lent, &c. and he is bound to prove such statement {u). (n) INIoorer. Watts, 12 Mod. 444. (o) Moore r. Watts, 12 Mod. 420. 2 Salk. 581. (p) 2 B. & P, 3.5. {q ) Williams v. Tempest, 2 Sid. 28. (r) 1 Roll. Rep. 119. (s) 1 Roll. Ab. 98, 99. .512. (0 2 F.sp 476. (./)Ib. Cro. El. FALSE IMPRISONMENT. 32-5 If tlie sheriff levy the lohole on a^. fa. and only return i'" siieritr levy part levied, this action lies for a false return (w). rei^umparr" The venue is to be laid where the return is filed in Venue. Middlesex, or in the county where it was made (x). Where the sheriff returns mdla bona, and there is a if recovery for recovery against him for his false return, that vests no a false return, property of the goods in him, but they remain in the in'the°^^art""'' " party, and are liable to any subsequent execution for his debt (y). If the 'plaintiff, relying on the statement of the sheriff that there is rent and taxes more than the amount of the levy, afterwards take the plaintiff on a ca. sa., he cannot sue for a false return, although the claim for rent should turn out to be unfounded {z). In an action for a false return of nulla bona, held that the person claiming property in the goods was an admis- sible witness for the sheriff to prove that they were not the property of the debtor («). False Imprisonment. TF a man be arrested under a process which was irregu- if arrest be by larly issued, this is a false imprisonment in the party an irregular at whose suit is was issued ; for it was incumbent on him P'ocejs. to take care that the process was regularly issued (b). But if a man be arrested under a process which was But if errone- erroneously issued, this is no^ a false imprisonment ; be- ously issued out. cause the issuing thereof was owing to the mistake of an officer of the court, and not to the fault or neglect of the party at whose suit it was issued (c). The officer is not in this case liable to an action of Officemot liable trespass ; for that it would be hard to punish a man who 'I'^ugh me- has done nothing more than obey the process of a court ^^' '^' process. to which he owed obedience (c?). The sheriff is not discharged from the action of a false return by the plaintiff afterwards taking the defendant on a ca. sa. (e). If a sheriff to whom no writ has been directed for the If sheriff make arresting of.i4., make out a warrant to a bailiff to arrest warrant without (i(j) Salk. 12. (&) 2 Jon. 214. 1 Ventr. 220. (x) Bull. N. P. 64. Str. 509. (j/) 2 Vern. 239. (c) Philips v. Biron, Str. 509. (s) Stewart I'. Whittaker, 1 Ry. & (d) Cro. Jac. 3. 2 Leon. 89. M. N. P. 310. 4 Leon. 78. 2 Mod. 196. Str. 509, (a) Thomas r. Peaise, 5 Pri. 547. (e) Wordal r. Smith, 1 Camp. 332. Y 3 326 writ, false im- prisonment. But if a writ is directed, and A. is arrested be- fore writ deli- vered, no false imprisonment. But warrant not lawful. An action lies for an arrest made by bailiff after the return of the writ. If A. arrested instead of B. false imprison- ment. If A. tell an officer that his name is B. and is arrested, yet false imprison- ment. FALSE IMPRISONMENT. A., and A. be thereupon arrested, it is a false imprison- ment in the sherifi' and the baihff, because there is no authority for the arrest (/). But if a writ has been directed to a sheriff for the ar- resting of A ., and he makes out a warrant to a baihff, under which A. is arrested before the writ is dehvered to the sheriff, that is no false imprisonment ; for the writ is in this case an authority for all that has been done, not- withstanding it was not delivered to the sheriff before the arrest (^). Although, however, the arrest upon such warrant is good, the granting thereof by a sheriff or his deputy is not lawful (A). The sheriff is liable for the misconduct of his officers, while acting under colour of an authority derived under him ; and therefore he is liable to tliis action for an arrest made by his bailiff after the return of the writ ; and so is the gaoler who receives the defendant. The true ground upon which the sheriff is held to be liable is, that he is thought to commit the execution of the writ to another person ; and if he has not executed it properly, the sheriff is liable. The officer is the servant of the sheriff, and executing the process directed to him ; if therefore he acts irregularly, the law subjects the sheriff, from whom he derives that authority. The gaoler is the officer of the sheriff, and therefore the sheriff is liable for his acts. Eyre, C. J. (i). If J., be aiTcsted instead of B. whom the sheriff had a writ to arrest, this, although B. be very much like A. in the face, is a false imprisonment ; for the sheriff is at his peril to take care that he do not arrest any person except him against whom the writ issued {k). Nay it has been holden, that if ^. tell an officer, who has a warrant to arrest B., that his name is B., and there- upon the officer arrest vl., this is false imprisonment; for the sherift'is at his peril to take care that he do not arrest any persoa except him against whom the writ issued {I) ; yet it seems he caused himself to be arrested, therefore qucere as to damages. (/) 1 Jones, 375. (^) 2 Lev. 19. 3 Lev. 93. (/() 2 Wils. 47. (!) Parrott i.Mumford,3Esp.585. (/c) Bro. Off. pi. 8. 2 Roll. 552. O. pi. 5. 1 Bulst. 149. (/) Moor, 457. Ilardr. 323. Abr. FALSE IMPRISONMENT. And it appears that if there be a misnomer in the process, and sheriff arrest the defendant by such wrong name, he cannot justify himself in an action of trespass for the false imprisonment (m). And so if goods be taken undera^^. ^a. wherein defendant is misnamed (/i). Misnomer of the christian name of one of defendants in a latitat is bad(o). So misnomer of defendant's christian name in the notice at the bottom of process {p). If a special bailiff' do not show his warrant, a sight thereof being demanded at the time of arresting a man, the arrest is a false imprisonment (q). But it is otherwise if arrested by a known bailiff. But if a warrant be directed to two or more jointly or severally, an arrest by any one of these is certainly not a false imprisonment (r). If a stranger assist a bailiff in confining a person who has been arrested by the bailiff, this is not a false im- prisonment. And if a stranger, after a man has been an-ested, confine him at the request of the bailiff who arrested him, this is not a false imprisonment (s). If a person against whom an escape-warrant has issued be arrested by the mob, and by them delivered to the sheriff, and the sheriff detain him, this is a false imprison- ment ; for, as he was not arrested by a proper officer, the arrest was illegal (t). An unlawful detainmg of a man does, although the first arrest was lawful, amount to a new arrest, and conse- quently is a false imprisonment (u) ; nor can he detain a party for the costs of the attorney after the plaintiff is satisfied (x). If a plaintiff, by an order in writing, direct a sheriff to discharge a man whom he has arrested by virtue of a capias or an exigent at the suit of the plaintiff, and the sheriff do after^vards detain the man, this is a false impri- sonment (?/). So after a supersedeas delivered to hmi, and party not discharged {z). 3-27 If defendant misnamed. If vvairant not shown, false imprisonment. If warrant to two, and arrest by one. If a stranger assist officer. If stranger confine after arrest made. If on escape- warrant he be arrested by the mob, false im- prisonment. Unlawful de- tainer, although arrest lawful. Sheriff must discharge a man, if directed by plaintiff. So after super- sedeas. (m) 8 East, 328. (n) 6 T. R. 234. (o) Tomlin v. Preston, 1 Ch. 397. (p) Harden v. Wood, 1 Ch. 500. Iq) Bro. Faux. Impr. pi. 23. 9 Rep. 69. (r) 1 Inst. 181. (a) Bro. Tres. pi. 402. 2 Roll. Abr. 5G1. F. pi. 2. Cro. Car. 44G. (i) Rich V. Doughty, 6 Mod. 154. (m) Cro. Car. 379, (j) Martin r. Francis, 2 B. & Aid. 402. (v) Withers v. Henley, Cro. Car. 379". 3 Bulstr. 97, 98. (:) Fitz. N. B. 236. Cro. Jac. 379. 1 Roll. Rep. 141. 3 Bulstr. 97. 4 328 Confining in a gaol contra onlur, false imprisonment. If a name of a bailifT be in- serted in the warrant, it is bad. AVill not lie for an arrest of the person, though protected as a suitor. Action will not lie for arresting a bankrupt, &c. Sheriff must show process, if he justify under it ; a party need not. TRESPASS, If the order of a court be to carry a man to a certain prison, the confining him in any other place is a false imprisonment (a). If a warrant on a capias has two bailiffs' names inserted by the under-sheriff, and a blank left for a third, is sealed, and sent to plaintiff's attorney, who inserts another bai- liff's name in the blank of it, it is bad, and false impri- sonment lies against the bailiff who makes the arrest (5). This action will not lie for a person arrested by legal process, though he be returning from the court of Com- mon Pleas, where he had been attending his own cause ; for the process is not void (c). It will not lie against the sheriff or his officer for arrest- ing a certificated bankrupt, a peer, a discharged insolvent, or a person who took the advantage of the statute of 20 Geo. 3. c. 64 {d). If the sheriff or officer to whom mesne process is directed, justify an imprisonment under the process, he must show it to be returned ; but a party who has a warrant from the sheriff, or one in aid of him, need not (e). Trespass. n[^HE high-sheriff is answerable in damages for the tres- passes committed by his officer in the execution of warrants ; the law looking upon the sheriff and all his officers as one person, he is to look to his officers, that they do their duty ; for if they transgress, he is answer- able to the party injured by such transgression, and his officers are answerable over to him (/). But where the plaintiff employed an auctioneer to sell goods taken in execution, and afterwards a stranger, whose the property was, obtained a verdict against the sheriff, bailiff and auctioneer : held, that the latter could not maintain any action against the sheriff' for a contri- bution, or upon an implied mdemnity, although he had received his poundage {g). (a) Swynstead v. Lyddal, Salk. (e) 1 Salk. 409. 12 Mod. 396. 408. Skin. 664. Com. Dig. Pleader, 3 M. 24. 6 (b) Burslem r. Fern, 2 Wils. T. R. 235. 47. . ( /■) Saunderson v. Baker, 2 Bl. R. (c) Cameron v. Lightfoot, 2 BLR. 317. 2 Keb. 342. 1190. (g) Farebrother t. Ansley, 1 (f/) Tarlton v. Fisher, Doug. 671. Camp. 343. TRESPASS. Trespass will lie against the sheriff if his officer take the goods of A. on aji. fa. against those of B. (A). If the bailiff of a franchise take the goods of a stran- ger in execution, trespass lies against him, and not the sheriff (i). If sheriff takes a furnace, &c. fixed to a freehold, tres- pass lies, but not against the party, though it is delivered to him (k). If a sheriff who comes to replevy the beast of J. S. which is impounded in the close of J. JV., break down the fences of the close, and enter that way, when he might have went through the gate, trespass lies. But if by reason of the threat of J. N. the sheriff fear his life will be in danger if he go through the gate, and in conse- quence of this he break down the fence of the close, and enter that way, this action does not lie (l). On foreign attachment of the goods, the officer cannot legally continue in possession of the defendant's house, or keep the goods therein for a long and unreasonable time ; but must remove them to a place of safe custody, else he is a trespasser ab initio (m). In all cases where the execution of a judgment on which the demand is of a thing certain, if the sheriff do this thing he is not any disseisor. But where the execu- tion is in the generality, without mentioning of any thing in particular, there the sheriff ought to make execution of the right thing at his own peril, otherwise he shall be a disseisor ; for he was bound to take notice of it, and he had not any warrant from the court to make execution of any but the right thing (w). Where the subject-matter of any suit is not within the jurisdiction of the court applied to for redress, every thing done is absolutely void, and the officer executing the process is a trespasser (o). But where the subject-matter is z^iMm the jurisdiction of the court, but the vjant of jurisdiction is to the person or place, unless the want of jurisdiction appears in the (ft) Ackworth v. Kempe, Dougl. 40. 2 Bl. R. ^2. S. P. and see 1 East, 328. (i) 2 Roll. 522. 1. 40. (/c) 2 Roll. 55«. 1. 50. Cro. El. 374. 3-29 If goods of A. taken instead of h., trespass lies. If goods of a stranger taken, trespass lies. If sheriff takes a furnace. If fences broken where there is a gate, trespass lies. But if threats are used against sheriff, other- Officer not to keep the goods an unreasonable time. Execution of the right thing at peril of the sheriff. When officer a trespasser. When not (I) 2 Roll. Abr. 552. (7J i) Read v. Harrison, 2 Bl. R. 1218. (n) Floyd V. Bethel, Roll. R. 200. 2 Yin. 292. (o) Hard. 480. 330 1 f slieriff break the house to exe- cute process. Only confined to the person of the owner or his goods. When sheriff may maintain this action. AVhen officers not trespassers. "When may waive trespass, and bring action for the goods sold. Bailiffs may justify under legal process. Ready fur- nished house. TRESPASS. process to tlie officer who executes it, he is not a tres- passer {p). If the sheriff or his officers break the house of any per- son to execute process of fi. fa. against the goods, or cap ms against the person, at the suit of the subject, he is a trespasser, and Hable to this action. But this pri- vilege only is confined to the person or goods of the owner of the house, or such as are brought there without fraud or covin, and therefore shall not protect the person or goods of any other which are brought there to prevent a lawful execution {q). If a sheriff take goods under a ji. fa. and they be forcibly taken away from him, the sheriff may maintain trespass, although he has only a special property in them (r) ; or trover. Officers doing their duty shall not be trespassers by relation if the first taking were lawful {s) ; and so long as the judgment exists it protects the sheriff, and all acting under hun {t). In case goods be taken in execution, which are not the property of the persons against whom an execution is taken out, the owner may waive the trespass, and bring his action for the amount of the money the goods sold for (m). In trespass against bailiffs for taking goods, they may justify under a sufficient legal process, if they had it in fact at the time, although they declared then that they entered for another cause {x). The landlord of a ready-furnished house brought tres- pass against the sheriff for seizing the furniture under an execution against the tenant ; the court held the action not to be maintamable ( y). Justification. In trespass against the sheriff, it is a sufficient justifi- cation for him that he shows his writ, without showing a judgment : so it is in case of his bailiff, with this dif- ference, that the sheriff must show the writ was returned^ (p) 2 Co. 76. a. (g) Semayne's case, 5 Co. 91. (r) Tyrrell v. Bash, Cro. El. 639. 1 Lev. 639. (s) Smith V. Miles, 1 T. R. 480. (t) Ives I.Lucas, 1 Carr. N. P. 17. (u) Feltham v. Terry, Cowp.419. (x) Crowther v, Ramsbottom, 7 T. 11. 664. 12 Mod. 386. S. P. (V) 4 T. E. 489. Ward v. Ma- cauley, 7 T. R. 9, as to trover. TROVER. 331 if returnable ; but the bailiff' need not, because it is not in his power (z). If one comes in aid of an officer at his request, he may Justify as the officer may do; but su.cli request or com- mand is traversable («). ^Evidence. In actions against the sheriff" or his officers for tortiously Torts. taking of goods in execution, where the plaintiff is de- fendant in the original action, a copy of the judgment need not be given in evidence (Z>). But where the action is by a stranr/er, whose goods I^ Ijy a stranger. have been wrongfully taken by the sheriff, under afi.fa. or other execution, if sued against another person, the sheriff or his officers, in justifying under the writ, is obliged to produce a copy of the judgment upon which the Ji. fa. issued (c). Ti'over. nrmS action is maintainable by the assignees of a bank- Trover. rupt against a sheriff, who sells the goods of a bank- rupt (before taken by him in execution under a Ji. fa.) after assignment. For after the assignment they became the property of the assignees from the time of the bank- ruptcy by relation. But this relation shall not make him a trespasser or waong-doer, where the original taking of the goods was prior to the assignment, and lawful. For in this action the plaintiff waives the tres- pass ; and relies upon the unlawful possession. The injury complained of by this action is not the seizure, but the wrongful conversion. Therefore, where the she- riff, on the bthDecemher 1753, took the goods in execution of one Johns, and Johns having committed an act of bankruptcy on the 4th, and on the 8th a commission issued, and an assignment was executed on the same day by the commissioners, and afterward, viz. the 28th of December following, the sheriff made a hill of sale of the goods, it was held, that the property vested in the assignees, from the time of the bankruptcy, by relation (d). Trover and not trespass lies by the assignees of a bank- when trover rupt against a sheriff, for taking the goods of the bank- and not tres- rupt in execution after an act of bankruptcy, though P^*^" (:) Salk. 408. Brltton v. Cole, (c) Martin i'. Podger, 5 Burr. 3 Lev. 20. 2G31. (a) Salk. 409. (d) Cooper v. Chitty, 1 Burr. 20. (/)) Lake v. Billets, L. llaym. 733. When main- tainable by the sheriff'. When sheriff not liable to this action, as to goods leased, as furniture, by the landlord. 332 BETURN OF WRITS. before the issuing of the commission, where he sells them after the issuing of the commission, &c., and has notice from the provisional assignee not to sell (e). Aliter if he has not sold if)- Where the goods are seized by the sheriff under Siji. fa. the sheriff may maintain this action against any person for taking and converting them to his own use {g). Where goods leased, as furniture uath a house, have been wrongfully taken in execution by the sheriff, the landlord cannot maintain trover against the sheriff pending the lease, because, to maintain such an action, he must have the right of possession, as well as the right of pro- perty at the time (/t). As to other Actions. \^ fieri feci be returned, the plaintiff may proceed by action of debt founded on his return ; or though no return be made, an action of debt, account or assumpsit will still lie against the sheriff or his executors for the money levied {i). And the defendant cannot in such an action plead the statute of limitations ; for though, till the writ be returned, it is not a matter of record, yet it is founded upon a record. Return of Writs. Heturn of writs HPHE return of all writs and process belongs to the belongs to the - . ~. sheriff". Subsequent sheriff^. sheriff within his county And the king cannot grant to any other to have retorna brevium in a county (^). A subsequent sheriff may make a return of a writ delivered to his predecessor, for it is not directed to any one by name (Z). The return of a sheriff is of such high regard, that generally no averment shall be admitted against it {m). But where a man's life or mheritance is in jeopardy, an averment shall be allowed against the return. As if A. be outlawed for felony, he may say that he tendered surety before the fifth county-court {n). 2 Show. 79. (e) Smith v. Milles, 1 T. R. 475. (/) Duflill V. Spottiswoode, 3 Carr. & 1'. 437. {g) Wilbrahara v, Snow, 1 Lev. 282. (fc) Gordon v. Harper, 7 T. R, 9. 4 T. R. \m, as to trespass. (0 Cro. Car. 539. 281. Gilb. Exec. 25. (/c) Skin. 414. 2 Inst. 452. Vent. 406. (/) 1 Salk. 260. ()») Kitch. 280. («) 2 Roll. 462. 1. 15. At what time. HETURN or WRITS. 333 And if the kina; grants the return of writs in such If king grants a precinct to another, the sheriff remains officer to the [f^'pr^cincf court, and the grantee is but a baihff of a franchise, and ought to make return to thes heriff. But by prescription, ^^ PJj'J^jPj^'"" or the king's grant, a hundred or franchise may have JaveVturn"o7 retorna brevium within their precinct (o). So a bishop ( p). writs. So an honor, or the lord of a manor (q). A grantee of retorna brevium shall have the execution thereof as incident, though it be not expressed (r). The return of a writ ought to be made before or upon the day of return named in the writ(s). If it be returnable at a return-day, not certain, the sheriff need not return it till the quarto post (t). But where the writ expires in vacation, the sheriff need ^Vhere writ ex- not return it till the first day of the ensuing term, and has P-)JJ;^ the whole of that day to file it in (u). All processes against any person, directed to the sheriflT, All processes ought to be duly and truly executed, and returned into ghe^^y to be '° such courts out of which they were awarded. executed, &c. The sheriff, as also the bailiffs of liberties which receive Sheriff, &c. the kino's writs returnable in his court, ought to set their '^^s}^^ t° ^^^ ^ o . , . ,1 • J 1 ■ i- their names to names to then- return (viz. then' surnames and christian returns. names (x), so tliat the court may know of whom they 12 Ed, 2. c. 5. took such returns, if need be ( y). ^ ^' ^' And if any sheriff or bailiff do leave out his name in If name left his return, he shall be grievously amerced, by force of °^^' "'°^^- 12 I^d. 2. And a return without the sheriff's name is void ; and an outlawry was reversed for such cause. He is also to insert his title, and name of dignity. In London, where there are two persons, both ought to Two persons put their names, for they are but one sheriff (2:). So if a return be by coroners, all ought to sign it (a). Coroners. The want of the sheriff's name shall be aided (5) ; 2iJac. i.c.is. and it is said, if the sheriff indorses, and does not sub- .^^fl^f^^J^g'^' scribe his name, it is sufficient. aided. The returns are to be indorsed on the back of the Returns to he writ ; and if of length, a schedule may be annexed on indorsed, parchment, of such return. (o) 1 Vent. 405. 1 Roll. 119, (») 5 East, 38(3. (p) 2 Roll. 202. 1. -10, (i) Plo, G3, a. (g) Hard. 423. (v) Fitz. Retorn. 8, (»•) 1 Vent, 405. (:)lIob. 70. (s) Mod.Cas. 148, 149.198.250. («) lb. & 39 11. 6. 11, (f) Makepeace I'. Dillon, Fort. r,63. ('') Cartli. 5!>. 334 ]\Iust be made in the name of the high siierlff. Sheriff must return truly. Beturn of old sheriff not to conclude new. Ought to answer the point and be certain. If he show the writ perfonncd. fiETURN OF WRITS. All returns, although made by the under-sheriff, yet must be in the name of the high sheriff (c) ; and his name must be put thereto, or it is void (d ). The sheriff must return truly, and not contrary to the record ; if he does, he falsifies all his proceedings (e). Where defendant had been arrested by a wrong name, and the sheriff returned " I have taken A. B. sued by the name of C. D. ;" as the an-est was illegal, and the sheriff a trespasser, and liable to an action for false im- prisonment, an attachment which had issued for not bringing in the defendant's body was set aside (/). But he cannot return contrary to his former return on record (^). So it ought not to falsify the writ, for that belongs to the defendant {h). And the return of the old sheriff shall not conclude the new sheriff (z). Every return ought to answer the point of the writ, and it is said ought to be certain to every intent, as a declaration ought to be ; and the sheriff is bound to take knowledge of the law in making his return ; but as the sheriff's return is only to ascertain to the court the truth of the matter, it requires not such precise certainty as is required in pleading {k). If he show the command of the writ performed, in substance, it is sufficient, as it says infra nominatus et cajitus est (Z) ; though it does not say by whom, or how. Attachiari feci, for qui facit per alium facit per se(m). So scire feci, or smnm' feci, 6fc., per A. and B. without saying pi^ohos et legales homines in). So if it refers to the writ, it is sufficient, without repeat- ing the words of it ; as scire feci predict' B. essendi sec tenor' hrevis, without saying where or what to do (o). Ad faciendum quod hreve requirit ( p). So it is sufficient if the return be ascertained by the wTit (q). (c) 3 Bulstr. 78. (rf) 1 Bulstr. 73. («) Cro. Jac. 223. (/■) Rex. V. Sh. of Surrey, 1 Marsh. 75. (g) 2 Roll. 4-)8. I. 2.->. (/() Salk. 381. (0 Dalt. 5]G. (k) 8 Co. 127, 128. (/) Salk. ,589. (m) lb. Skin. 552. (n) 2 Roll. 459. 1. .50. 53. (o) 2 Roll. 4G0. 1.2. (,,) Ih. 1.5. (.y)Ib. 1.1.3. RETURN OF WRITS. So suq^lusage in a return shall be rejected : as imrat' haheo huhicunq for uhicunq' shall be rejected (r). He ought to answer to the whole command of the writ; and therefore a panel with nine names, or less than required, is bad (s). Returns ought to be made according to the ancient course, and according to precedents (t), and by the usual words, otherwise they are not good. Statutes aid mis-returns and insufficient returns, but not where there is not any return (««)• None can make a return but such a person who at the time of the return remains an officer to the court. Officers are not to return feigned names for sum- moners, but the true ones (.r). That in returns to elegit, or of a writ in nature of an elegit, the words of the writ ought to be pursued (?/). Returns are nothing else but the sheriff's answer touching that which they are commanded to do by the king's writ, and are but to inform the court of the truth of the matter ; and yet it seems to be the most difficult thing belonging to the office ; for the sheriff must be very careful and circumspect that he make these returns according to law, both for substance and form ; other- wise he shall not only endanger himself to be amerced, or sued for the same, but also he shall endamage the parties, and may hazard the cause or suit itself; for it is often to be found that judgments have been stayed for defaults apparent in the sheriff's return {z). The answer of the sheriff", \{ general, is usually indorsed on the writ itself; but if it be special, it is commonly in- grossed on a distinct schedule or piece of parchment, and annexed to the body of the writ, at the same time in- dorsing these words on the writ, " The execution of this writ appears in a certain schedule " hereunto annexed." In every original writ, where summons lies, the sheriff must first summon or warn the tenant or defendant to appear and answer, &c. and this must be done in the pre- 335 To answer tlie whole. To be made according to precedents. Statutes aid mis-returns. Officer only can make return. Feigned names not to be returned. Words in elegit to be pursued. Returns are nothing but sheriffs answer. Answer, if general, is in- dorsed, if spe- cial, scheduled. Where sum- mons lies, how sheriff to act. ()•) Salk. 589. (s) 2 Roll. 461. 1. 2. (0 Dalt. 162, 163. 00 Cro. Car.587. 18E1. 8H.6. . 12. (x) Searl & Long's case, Mod. Rep. 248. (y) Dalt. .548. (:) Dalt. 102. 336 RETURN OF WRITS. sence of two real summoners, which being done, the sheriff must return the writ in this manner, viz. if the de- fendant be sufficient, first he must return the two common pledges, Johji Doe and Bichard Roe, for the plaintiff, and then the names of the summoners as follows : [John Doe Pledges to prosecute. < and y Richard Roe. Summoners of the within-named /. S. (the j ' , ' defendant) \r^ W. Tlie answer of W. B., esq. sheriff. (John Doe Pledges to prosecute I and {Richard Roe. Nihil'mdeht. The within-named I. S. hath nothing in my bailiwick where or by which I can summon him, nor is he found in the same. The answer of, &c. If it be on an original in case, then you say. Return to an "The within-named I. S. hath not any thing in my original in case. bailiwick whereby he can he attached, nor is he found in the same. The answer of, &c." If more defendants than one, then say. Nihil against " The within-named /. S. and T. L have not, nor hath two. either of them, any thing in my bailiwick whereby they or either of them can be attached ; nor are they, or is either of them, found in the same." If one be summoned, and the other not summoned, say. One not found, " The within-named I. S. hath not any thing in my baili- tlie other sum- wick, whereby he can be attached, nor is he found in the "^°"^'^' same." (John Denn Summoners of the within-named T. I. are ; and {Richard Fenn. The answer of, &c. Previous to re- N. B. — Previous to any return on an original, put turn of original, pledpes to prosecute, John Doe and Richard Roe. put pledges. r o i c, 124. Bv 51 G. 3. it is enacted, " That in all cases where plaintiff shall proceed by ori- " ginal, or other v.rit and sunnnons, or attachment there- " upon, in any action against any person or persons, not " having privilege of parliament, no writ of distringas shall '• issue for default of appearance, but the defendant shall be KETURN OF WRITS. 337 " served personaUij with the summons or attachment, at the " foot of which sliall be written a notice, informing the " defendant of the intent and meaning of such service, to " the effect following : " C. D. you are served with this process to the intent " that you may appear, by your attorney, in His Majesty's " court of at IVestminster, at the return hereof, being " the day of in order to your defence in the " action : and take notice, that in default of your appear- " ance, the said A. B. will cause an appearance to be en- *' tered for you, and proceed thereon as if you had yourself " appeared by your attorney." s. 2. This act recites that provisions in the act, authorizing plaintiffs to appear for defendants, are not deemed to ex- tend to proceedings by original and other writs whereon no capias issues, and therefore enacts That in case it shall be made appear, to the satisfaction of the court, or, in the vacation, of any judge of the court from which such process shall issue, or into M^hich the same shall be returnable, that the defendant, &c. could not be personally served with such summons or attachment, and that such process had been duly executed at the dwelling-house or place of abode of such defendant, &c. that then it shall be lawful for the plaintiff, &c. by leave of the court, or order of such judge, as aforesaid, to sue out a writ of distringas, to compel the appearance of such defendant or defendants, and that at the time of the exe- cution of such distringas, there shall be served on the defendant, &c. by the officer executing such writ, and if he, she or they cannot be met with, there shall be left at his or their dwelling-house or other place where such distringas shall be executed, a written notice in the follow- ing form : In the court of [specifying the court in which the suit shall be depending] between A. B. plaintiff, and C. D. defendant, [naming the parties.] Take notice, that I have this day distrained upon your goods and chattels for the sum of 40 s. in consequence of your not having appeared, by your attorney, in the said court, at the return of a writ of returnable there on the day of and that in default of your appearing to the present writ of distringas at the return thereof, being the day of the said A. B. will cause an appearance to be entered for you, and proceed thereon as if you had yourself appeared by your attorney. E. F. [the name of the sheriff" s officer.] To C. D. the above named defendant. 338 ]\fesne process how to be leturned. Tarde not to be made on a capias. If lie return the death of the defendant. On sci. fa. and hub. Corp. death letuined good. Nihil on an original, qiiare claiisum (regit. The like summons. Return to an attachment cepi. Non est inveiit^is. Return to an attachment and proclama- tion. Non invent, to a capias, alias and pluries. The like as to two. RETURN OF WRITS. To mesne process, viz. capias ad respondendum, alias and pluries, latitat, bill of Middlesex, Sfc. the sheriff returns, taken, cepi, or not found, non est inventus ; unless special circumstances arise, such as a rescue, or sick, therefore I shall set down these returns : but upon a ca- pias, tarde is no good return, for the manifold mischiefs which may follow thereon : and therefore if such a return be made, the sheriff is to be amerced (a). But tarde is good on an attachment. If the sheriff return the death of the defendant, he must further show, that the coroner had view of the body (b). But I think if he return the death it is sufficient, for the writ abates (c). In a, precipe quod reddat, as also on a sci. fa. and hab. corp. cuin causa, it is a good return that the tenant or party is dead {d). Put pledges to prosecute first, then. The within-named I. B. hath not any thing in my baili- wick whereby he can be attached, nor is he found in the same. The answer of, &c. {John Doe and Richard Roe. Summoners of the the within-named I * , C D are 1 ^^^ ( /. Armstrong. The answer of, «fec. I have taken the within-named C. D. whose body I have ready. The within-named C. D. is not found in my bailiwick- The answer of, &c. The sheriff cannot return non est inventus to a writ brought against his own bailiff', and delivered to him (e). By virtue of this writ to me directed, I have caused public proclamation to be made in my bailiwick that the within-named C. D. be and appear on the day and at the place within written, as within I am commanded. And I further certify, that the within-named C. D, is not found in my bailiwick. The within-named C. D. is not found in my bailiwick. The answer of, &c. The within-named C. D. and E. H. are not, nor is either of them, found in my bailiwick. The answer of, &c. 42. (a) 21 H. 6. Fitz. Ret. 37. i. ib) Fitz. Ret. 107. ((•) Bro. 12.5. ((/) Br. Ret. 125. (e) Vent. 12. 24. Return of cepi as to one, and lion inventits as to the otlieis. If defendant resides in a liberty. Mayidai halllvo. RETURN OF WRITS. I have taken the within-named C, D. whose body I have Cepi rorpn ready as witliin I am commanded. The answer of, Si.c. I have taken the within-named C D. and J. J. whose bodies I have ready. The answer of, &c. If the writ be against more defendants than one, and one be taken and the other not, return the cepi corpus as to him, and as to the others say, " And the within-named A. G. and 7. H. are not, nor is *' either of them, found in my baihwick. The answer of, &c. If the defendant resides in a hberty, where there is a proper baiUff or officer for the execution and return of the writ, whereupon the sheriff sends his precept directing him to execute it, if it is not done, the sheriff usually makes this return : By virtue of this writ to me directed, I have sent to the bailiff of the hberty of F. to take and arrest the within- named C. D. which said baiUff hath the full return of all writs and processes, and the execution of the same, within the liberty aforesaid ; so that no execution of this writ can be made by me within the said liberty, which said bailiff hath not as yet given me any answer thereto. The answer of, &c. (/). If he has answered, say, which said bailiff hath an- swered me thus, " That the within-named C. D. is not found in my baili- " wick ; or that he hath taken the Avithin-named C. D. " whose body he hath ready. The answer of A. K. " sheriff" (o). The treasurer and barons of the Exchequer shall deliver to the justices a roll of all liberties that have return of writs : and if the sheriff returns mcmdavi hallivo of any other liberty, he shall be punishable by fine and ran- som {h). Amercements for insufficient returns made by stewards or bailiffs of liberties, shall be set upon their heads, and not upon the sheriff's. Upon a ccqjias, the sheriff returned that the defendant was so sick that he could not take or carry him out of his house for fear of death; and it was adjudged a good return (i). 339 If writ is an- swered. Roil of all liberties to be delivered. Amercements for insutHcient returns. 27. H. 8. c. 14. hanguklus a good return. (f) 2 Roll. 4G0, 1. .50. ig) lb. 1. 4.5. (/i) 2 Inst. 4.52. (i) Fitz, Ret. 105. 122. 213; & semh. contra, Baker venport, 8 Dow & Ry- 60G. z 2 Dalt. .. Da- S'W P.ETUTiN OF AVEITS. In a late case, the court, doubtino- whether special cu- ciimstances showing that the sheriff could not safely take the party into custody, might not form a good return, yet held that the grounds of excuse must be shown to be continuing up to the return of the writ, and it appearing that the officer had allowed two days to elapse without inquiry after the state of the party, and he had in the interval escaped, the court quashed the return (k). And a return to a latitat that the party was insane at the time the officer went to serve the writ, was held bad, for not stating that he continued in that state up to the return of the writ ; but the court allowed it to be amended, and refused the attachment (Z). Si(?k in prison, Upon the capias, the sheriff returns cepi corpus, and ^°° ■ that the defendant is sick in prison ; this is a good return, if it be true (m). Return of Tjjg return of the within writ appears in a schedule here- anguu its. , ^j^^^ annexed. Tlie answer of A. P. sheriff. By virtute of the writ hereunto annexed, to me directed, I did, on the day of last, at and in a certain private dwelling-house of one situate at in my bailiwick, take the body of C. D. in the said writ named, she, the said C. D. having been on the day of aforesaid brought to bed of a child, and then being so very ill, weak and diseased therewith, that I could not remove her from and out of the room in which she was then lying so ill, weak and diseased as aforesaid without the greatest danger and peril of her life ; and the said C. D. having but one small room in the said house in which she lay so ill, weak and diseased as aforesaid, I could not keep her in my custody without the greatest danger and peril of her life ; whereupon I, from the necessity of the above circumstances, and for fear of occasioning her death, in case I continued her in my cus- tody, on the account aforesaid, immediately relinquished the custody of the body of the said C. D. so being ill, weak and diseased as aforesaid, and afterwards, and so soon as it might be supposed she was so far recovered of her said illness, weakness and disease, as to be able to be re- moved without danger of her life on that account, to wit, on the day of in the year aforesaid, I, the said sheriff, went again to the said house and room, for the purpose of taking the said C. D. into my custody, in (fc) Perkins v. Walter, Cor. (/) Cavenaghr.Collett, 4B.&A.2T9. Parke, J. J. in K. B., Hil. 1831. (m) Dalt. 213. RETURN OF WRITS. 341 execution of the said writ, but the said C. D. was not then, or ever after, found there, or in my bailiwick ; for which reason I cannot have the body of the said C. D. before the lord the king at Westminster aforesaid, on the day within mentioned, as within I am commanded. By virtue of this writ to me directed, I have taken tlie Return ol cepi within named C. D., who remains in the prison of the lord J" prison ami the king of Newgate, under my custody, so ill and infirm, ""o"" "*• that I cannot have his body before the lord the king at the day and place within contained, as I am within com- manded, without the greatest danger and peril of his life. The answ^er of, &c. [or with various infirmities, that by reason thereof I cannot remove the body of the said C. D. vi^ithout the greatest danger of his life. Therefore the body of the said C. D. I cannot have at the day and place within mentioned, as, &c.] (h). In consideration that the sheriff of hath this ludemniiy to day, at my request, granted upon the within writ a warrant S''^"^ ^ warrant directed to a special officer, I do hereby agree to save harmless and indemnify the said sheriff from and against all escapes, rescues or rescuers of the within-named defendant ; and I do also agree that the said sheriff shall not be compelled or compellable to make any return of the within writ. By virtue of this writ to me directed, I have taken the within-named C. D. whose body remains in the prison of our lord the king under my custody. The answer of, &c. By virtue of this writ to me directed, I have taken the within-named T. R. and him in the prison of our lord the king, under my custody, did safely keep, until afterwards (that is to say) on the day of in the 3^ear of his present Majesty's reign, I received a certain writ of our said lord the king of habeas corpus cum causa, directing me to have the body of the said T". R. before His Majesty's chief justice of the common bench assigned to hold pleas in His Majesty's said court, at his chambers, in Serjeams Inn, Chaucerij-Lane, London ; immediately after the receipt of the said writ, by virtue and in obedience of the said writ, in the absence of the said chief justice, I had the body of the said T. R. with the said writ, and the return of the within cause, mentioned in a certain schedule to the said writ annexed, before the honourable Mr. Justice one of His Majesty's jus- tices assigned to hold pleas in His Majesty's said court of the bench, who, on the day and year aforesaid, received him of me, and immediately committed him to the prison of our Return "m custodv. Return to a writ where defendant went over by a ha. Corp. in tiie absence of the chief jus- tice committed by other judges (o). (».) Dall. 250. z 3 (<)) Dalt. 538. 342 Return defend- ant a member of parliament. Return if pro- tected by being in the service of an ambas- sador, &c. Return that the defendant was bankrupt at the time of his arrest, and bailiff dis- charged him. IIETURN Ol' WRITS. said lord the king of the Fleet, and altogether discharged and exonerated me from the further custody of the said T. R. Therefore I cannot have the body of the said T. R. before His Majesty's justices at Westminster, as within I am commanded. The answer of, &C. {p). I, J. W. G. esq. and IV. N. esq. sheriff of the county of Middlesex, humbly certify and return to His Majesty's jus- tices at Westminster, that at the time and before the coming of His Majesty's writ of capias ad satisfaciendum to me directed, which is hereunto annexed, the parliament of our lord the king was, and from thence hitherto hath been, and still is, sitting at Westminster in the county of Middlesex ; and I further certify and return, that L. C. esq. in the said writ named, at the time and before the coming of the said writ to me directed, was and from thence hitherto hath been, and still is, a burgess of the House of Commons, and during that time did serve as a burgess of the House of Commons, for the borough of, &c. Therefore I cannot take the body of the said L. C. and him safely keep, so that I might have his body before His Majesty's said justices at the day and place in the said writ mentioned, as by this writ I am commanded. The answer of, Szc. The within-named I. L. at the time of the delivery of this writ to me, to wit, on the day of in the year of His present Majesty's reign, and from that time until the return of the said writ, was in the service of plenipotentiary from the landgrave of Hesse Cassel, at the British court, as his private secre- tary, therefore I cannot have the body of the said /. L. be- fore the lord the king at the day and place in the within writ mentioned, as within I am commanded. The answer of, &c. The execution of this vvTit appears in the schedule here- unto annexed, &c. The answer of ^. P. esq. sheriff. I humbly certify and return to our lord the king, that by virtue of the writ hereunto annexed, I did on the coming thereof to me, to wit, on the day of last, duly make my warrant thereon under my hand and seal of office, directed to T. K. J. D. and R. D., my bailiffs of the hundred of O. in my county, whereby I commanded them, each and every of them, jointly and severally, that they, or any of them, should take D. S. in the said precept named, if he should be found in my bailiwick, and him safely keep, so that I might have his bod}^ before the lord the king at Westminster at the return of the said, writ, to answer to ./. H. in the said writ named, of the plea and to the bill in the said writ mentioned, which warrant 1 then delivered to (p) 1 Leon. 14.5. RETURN OF WRITS. ^^'i the said T. K. my officer, for execution thereof; and I i'ur- tlier humbly certify to our said lord the king, that beibre the coming of the said writ to me, to wit, on the day of 18 a commission of bankrupt, bearing date at Westminster on that day, issued under the great seal of Great Britain, against the said D. S. directed to J. R., C. R., F. D., J. B. and L. M. commissioners therein named, by three of which said commissioners, namely, F. D., J. B., and L. M. the said D. S. afterwards, and before the coming of the said writ to me, to wit, on the day of last, was duly found and delared a bankrupt, and as such bankrupt, the said three commis- sioners then caused notice to be given in writing to the said D. S. under their hands, according to the form of the statute in such case made and provided, that such com- missioners, or the major part of them, in the said commission named and authorized (to wat, on the day of then instant, and the and of then next, at of the clock in the forenoon on each of the said days, at ) had caused the said D. S. to be duly summoned by writing under the hands of the said three commissioners to be and appear before them, or the major part of the said commissioners in the said commission named, at those times, there to be examined, and to make a full and true discovery and disclosure of his estate and effects according to the directions of the act of parliament then in force concerning bankrupts, particularly the act of parliament passed in the sixth year of the reign of c G. 4. c. 16. His Majesty King George 4, intituled, " An Act to amend s. 117. the Laws relating to Bankrupts." And I further certify to our said lord the king, that the commission of bank- ruptcy is still in force, and that afterwards, and before the coming of the said precept to me, to wit, on the of last, notice was duly given in the London Gazette that such commission had issued out, and the times and place of the said three meetings of the commissioners in the said commission named, or the major part of them, accord- ing to the form of the statute in such case made and pro- vided, were inserted therein as hereinbefore mentioned, for the said D. S. to appear on the several days before men- tioned, before the major part of the said commissioners, and that forty-two days from the time of giving the said notice in the London Gazette are not yet expired ; and I further certify to our said lord the king, that by virtue of my said warrant, the said J. K. my officer, did within the said forty- two days, to wit, on the day of last, take and arrest the said D. S. by his body, (he the said D. S. being then and tliere going to surrender himself to the said commissioners, Z 4 344 That defeiulant had become bankrupt and obtained his certificate. RETURN OF WRITS. or the major part of them in the said commission named,) with intent to keep and detain the said D. S safely, so that I might have his body before the said lord the king at Westminster at the return of the said writ, according to the exigency of the said writ : but then the said D. S. then and there asserted and declared to my said officer, that he was coming to surrender himself to the said commissioners, or the major part of them in the said commission named, and then and there produced to my said officer the said sum- mons or notice under the hands of the major part of the said commissioners, and made appear to him that such notice or summons was signed by the major part of the said commissioners, and gave him a copy thereof, and demanded from him his discharge from the said arrest, for the cause aforesaid, whereupon the said D. S. was imme- diately discharged by my said officer from the said arrest, according to the form of the statute in such case made and provided ; and I further certify and return to our said lord the king, that the said D. S. was not at any other time found within my bailiwick, therefore I cannot have the body of the said D. S. before our said lord the king at the day and place in the said writ mentioned, as by the said writ I am commanded. By the same sheriff. I do hereby certify and return to the lord the king at Westnmister, that before the coming of the annexed writ to me directed, to wit, on the day of in the year of our Lord 18 CD. in the said writ named, then being a dealer and chapman, and then being indebted to E. F. a subject of this kingdom, in the sum of 100/. and upwards, and being also then indebted to divers other per- sons in divers other large sums of money, became a bank- rupt within the true intent and meaning of the several sta- tutes made and then in force concerning bankrupts, or some or one of them ; and thereupon a certain commission of bankrupt, under the great seal of the united kingdom of Great Britain and Ireland, bearing date at Westminster, the day and year last aforesaid, was duly awarded and issued out of His Majesty's high court of Chancery at Westminster aforesaid, at the petition of the said E. F. against the said C. D,, directed to certain commissioners therein named ; and the said C. D. was thereupon duly found and declared a bankrupt by the major part of the said commissioners : and I do hereby further certify and return, that the said C D. at the several meetings ap- pointed for his surrendering himself, and making a dis- covery and disclosure of his estate and effects, and finish- ing his examination, duly surrendered himself to the major part of the said connnissioncrs, and submitted to be ex- RETURN OF WRITS. -CA. SA. 345 aminetl from time to time ; and at the last of the said meetings finished his examination upon oath, before the major part of the said commissioners ; and upon such his examination, made a full discovery and disclosure of his estate and effects, and in all things conformed himself to the directions of the several statutes made and then in force concerning bankrupts, and particularly to the act of parliament made in the Cth year of His Majesty king George the Fourth, intituled, " An Act to amend the Laws relating to Bankrupts ;" and that the said C. D. after- wards, and after the recovery of the damages in the said writ mentioned, and before the coming of the said writ to me directed, to wit, on the day of in the said year of our Lord 18 duly obtained his certificate of conformity to the several statutes made and then in force concerning bankrupts, and particularly to the said act of parliament made in the 5th year of his said Majesty's reign ; and which certificate afterwards, and before the coming of the said writ to me directed, was duly allowed and con- firmed to the right honourable then being lord high chancellor of Great Britain, according to the form of the statute in such case made and provided. And I hereby further certify and return, that the cause of action upon which the recovery in the said v/rit mentioned was had and obtained, accrued to the said A. B. in the said writ named, against the said C. D. before such time as the said C. D. became a bankrupt : Wherefoi-e I, the said sheriff, having notice of all and singular the premises aforesaid, did for- bear to take the body of the said C. D. as within I am commanded. The answer of, &c. If the sheriff takes the defendant upon a writ, and he goes out of office before the return, and he has left his writ so returned, the new sheriff" indorses underneath such return thus : " This writ, as above indorsed, was delivered to me the under-named now sherifF, by the above-named late sheriff, at the time of his going out of office. The answer of, &c." To a Capias ad Satisfaciendum. If the sherifF takes the body of the defendant, he must return that he hath it ready at the day(^:>). And it is a good return to say, he is not found {q). But let the sherifF take heed, if herein he return cepi ^coyyus, that he hath the body in court at the day, other- wise he is chargeable for the whole debt, by reason it is (/)) Br. Ret. 107. (5) Lib. Intr. 109. If the sheiiff goes out of office after de- fendant taken, how to return writ. If sheriff takes body, he must have it ready. And if he return cepi, he must have the body. 346 Return of cepi. A(i/i est invent. If on a cu. sa. execution be done and plain- tiff paid. But if ruled he must return. Release on pay- ment to sheritF no good return. ]\Iandavi ballivo who gave no answer. The bailiff's return oicepi. Return by new sheriff where the old sheriff executed the writ. IIKTURN OF WRITS. CA. SA. an escape. And he was held not to be excused on the ground of an escape whilst being brought up to be dis- charged from former process, on which he was previously in custody (r). I have taken the within-named C. D. whose body I have ready. The answer of, &c. The within-named C. D. is not found in my bailiwick. The answer of, &c. If the sheriff return non est ini^entus, and defendant publicly follow his avocations, he is liable to an action for such false return, but not to the extent of the original debt where the defendant is solvent (s). If on a ca. sa. the execution of it be done by the she- riff, and the plaintiff hath his demand, though the sheriff returneth not his wTit, it is of no danger to him {t). But if he is ruled, I should thmk he ought to return the fact, that he took the body, and released him, on pay- ment of the debt or damages to the plaintiff (m). For it is no good return to say he released the body on pay- ment of the debt, for by the writ he hath no power to receive the money {x). But payment over to the plain- tiff is, I should think, good, for in that case the purpose of the writ is answered, though without, it is not ; l)e- cause the sheriff may be insolvent, and no benefit arises to the plaintiff by the execution. By virtue of this writ to me directed, I have sent to the bailiff of the liberty of F. (or to /. D. bailiff of, &c.) to take and arrest the within named C. D. which said bailiff hath the full return of all writs and processes, and the exe- cution of the same, within the liberty aforesaid ; so that no execution of this writ can be made by me within the said liberty, which said bailiff hath not given me any answer thereto. Or it may be, which said bailiff hath answered me thus : I have taken the within-named C. D. whose body I have ready. In this case, the rule must be for the bailiff to brmg in the body ; in the other, for the bailiff to return the writ. If the old sheriff goes out of office, after the execution of the writ, then he returns such writ in his name ; and the new sheriff returns thus : " This writ, as above indorsed, was delivered to me, the (>•) Ibbotson V. Tindal, 1 Bing. (t) Dalt. 213. 15G. (m) Dr. & St. 18. Dalt. 1.38. (s) 2 Esp. 475. (j) 12 Mod. 230. RETURN Ol' WRITS.— CA. SA. 347 " under-named now sheriff, by the above-named late sheriff, " at the time of his going out of office. The answer of, &c." This return was held to be proper (y). For it shows Liud brevinm how the writ with the return comes into the present she- '^f id good by rifTs hands ; and Dalt. 549, hath tliis return. Tardt is not a good return to a cci. sa. nor to a cap. ad Tanle. resp. {z). Nor can the sheriff return the answer of a bailiff of a franchise, quod tardt (a) ; for it is the fault of the she- riff that he had not the writ before. I have taken the body of the witliin-named J. D. and Return of him detained in my custod}', until he paid the debt and |}^I^'"| taken damages within mentioned ; which debt and damages I paid paid^th "monev. to the plaintiff within named, and immediately afterwards discharged the said J. D. out of my custody. The answer of, &c. And he cannot detain the party until the costs of the attorney are paid (b). If a writ of execution shall come to the sheriff against If execution a prisoner (in the gaol) who is attainted of felony, the soneT attainted, sheriff may return that the prisoner is attainted, and that &c. what sheriff therefore he cannot take him in execution : but if the may return, sheriff shall serve the execution upon such a prisoner, and after he get his pardon for the felony, yet if he suffer the prisoner to go at large, the plaintiff at whose suit the execution was may bring debt for the escape j for although by the attainder the execution were superseded, yet by the pardon it was revived (c). The sheriff, as before said, cannot take bail, or return Sheriff cannot j-i,- -A / j\ take bad, &c. a rescue on this writ (a). It is an escape if he arrest on a ca. sa. and let defendant Escape if taken eo, although there is a term intervening; between the teste f" ^ 'i"vf'* . & ' » , , . .- -J • i • 1 though there is and return, because, bemg an execution, it is not void. ^ term inter- But it would be otherwise on mesne process, for there the vening. cause is out of court (e). Where the defendant is in custody, but the sheriff, on being asked to return the writ, gives notice that it is lost, but that he has the body, it is the same as if he returned cepi Corp. ; and the court set aside an attachment for not returning the writ (jT). (y) Leigh r. Turner, in C. P. (c) Dalt. 214. Trin. 24 Geo. 3. (rf) Cro. Car. 240. (2) 5 Com. Dig. 444. (p) 2 L. llaym. 775. Nector & («) 2 Roll. 4G1. 1. 20. Sharpe v. Gennett, Cro. El. 466. (6) Martin V. Francis, 2 B.&Al. 402. (/) R. v, Sh. of Kent, 1 Mar. 289. »4« PiETUKN or WRITS. — CAP. UTL. May return noil est inventus or cepi ; also nihil. IVIay on this writ imprison an infant. ]\Iay return in prison for a debt. What sheriff may do on this wTit, Goods and pro- fits of land. INIow and take corn, grass. But not med- dle with posses- sion of the land. If tenant of the freehold out- lawed. To a Capias Utlagatum. Vide title Bail, p. 88. Upon tlie capias utlagatum the sheriff may return the defeiidant not found, or that he hath taken hini ; and he may also return that he hath not any lands, goods or chattels on the day he was outlawed, or at any time since. And it is said that on this writ, if it be against an in- fant of the age of 14 years, the sheriff may imprison him, and seize his goods {g). Sheriff on this writ may take the posse comitatus ( h). The sheriff, it is said, may return that the party is in prison upon a condemnation for debt (i). But then he must bring him into court. The sheriff and his officers on this writ may seize to the king's use all the goods and chattels, real and per- sonal, of all such persons as shall be outlawed in any per- sonal action, that they had at the time the outlawry pronounced : and they may take for the king all the pro- fits of the lands in the possession of the party outlawed ; they may mow or sever, and take all the corn and grass gTowing, and take the seed and herbage of the grounds, &c. (as they arise and grow of themselves) and the rents of liis farmers, as the party outlawed might ; but they may not meddle vdth the possession of the lands, to plough, sow, grant, or let the same, Sec. And if the party out- lawed shall make a feoffment of his land, the king shall have no more the profits thereof, but the feoffee shall have the same, for that the king hath not any possession of the land, although he hath the profits thereof (A). And yet if the tenant for years be outlawed, the kmg or his officers may seize the land and term, and may plough the same land to sow the com, and may occupy the same in the same manner as the termor or tenant might. But othei'wise it is when the tenant of a freehold is outlawed, for in such case the king may cut the grass, &c. for that it is a thing that is annual, (sc. yearly cut or fed,) but he may not plough the land, nor cut the undenvoods; neither shall the king, or his officers, meddle to cut or crop any (a;) Dalt. 21.5. (/,) Fitz. llet. 110. Dalt. 217. (i) Lib. Int. 336, b. (k) Br. Her. 24. 26. & 30. Br. Issues, 9, 10. Plow. 541, b. Staunf. Trcr. 57. b. RETURN OF WRITS. — CAP. UTL. trees growin*^ upon the freehold (l). But where a woman executrix takes a husband who is outlawed, the goods of the testator shall not be thereby forfeited (m). And so if an executor himself be outlawed he shall not thereby forfeit the g-oods of the testator. If a woman covert be outlawed in an action of debt or trespass, the king is not to have her term (or a lease for years which she hath) for that it is in the husband {n). He that is outlawed in a personal action shall forfeit such debts as were due to him by simple contract (o) ; and so by bond or other specialty. No goods lawfully distrained, let or demised, pawned or pledged, shall be taken or seized for outlawry, until the lease be determined, or the rent or other satisfaction be yielded upon the distress, or the money paid for the pawn or pleclge(p). But goods bailed or delivered me to keep, if the bail are outlawed, these goods may be seized and taken for the king. No goods fixed or annexed to the freehold shall be taken or seized for outlawry ; as a furnace, table fixed to the ground with posts, nor wainscot, doors, windows, locks, pales, and the like (q). Deer in a park shall not be forfeited by outlawry in a personal action (r). If the sheriff take the body, how to proceed, title Bail, p. 82. Where there are two outlawries at different times, the first inquisition shall prevail ; and where there are two in one day, and both inquisitions on one day, there the first lease shall be preferred (s). Copyhold lands are not liable to be seized upon an outlawry, because it would be prejudicial to the lord ; nor upon an extent (t). If there are goods taken, or lands, &c. on the writ, the sheriff is to take an inquisition thereon, and inquire by a jury what goods, lands or chattels the party outlawed had the day of the outlawry, or at any time after, and return his inquisition so taken into court, and the goods 349 If woman exe- cutrix takes a Imsband who is outlawed. If woman covert be outlawed. Outlaw forfeits debts. Goods dis- trained, let, pawned, &c. not to be seized. ^V'hat may not be taken. If body taken. Two outlawries. Copyhold lands not liable. If goods, &c. taken, the sheritf takes inquisition. (0 9 H. 6. fol. 21. Dalt. 83. (m) 33 H. 6, Br. Forf. 71. (n) 9 H. 6. 52. (o) Slade's case, 4 Co. 95, a. ; Er. Forf. 107. 16 E. 4. & 4 H. 7. 17. (p) 4 E, G. Br. Distrain. 75. 22 E. 4. (q) 20 H. 7. fol. 13. b, and 2 E. 4. 12. (r) 10 H. 7. fo. 7, a. (s) Parker's R. 112. (t) lb. 190. 195. 3G0 RETURN OF WRITS. — CAP. UTL. Tlie inquisition on a ciipids vtl(ts:iUiii>i. Goods and chattels, debts, &c. SO taken lie may keep until he receives a vend. exp. for the sale thereof (w). Midd/esex,\An inquisition indented, taken at Guildhall, to wit. J Westminster, in the county aforesaid, on the day of in the year of the reign of our sovereign lord William the fourth, &c. before me, W. G. esq. and W. N. esq., sheriff" of the county aforesaid, by virtue of the king's writ to me directed, which is hereunto annexed, on the oath of A. B. C. D. [here name the tivelve jurors'] good and lawful men of my bailiwick, who being sworn and charged to inquire of all and singular the things in the said writ mentioned and contained, on their oath say, that C. D. in the said writ named, on the day of last, on which day he was outlawed, was, and on the day of taking this inquisition is possessed, as of his own proper goods and chattels, of and in two beds, &c. \Jiere set forth exactly the goods and chattels talten, and also be particidar as to describ- ing the debts djie to the outlatved, or the return ivill be bad, and how he came by every bill or note of hand, if any, viz. by indorsement, or acceptance, &;c. and the parties names indorsed thereon, and also show whether the debts seized are for goods sold, money lent, Sfc. if you have evidence before you, but not Terms for years, else ;] and also of and in the remainder of a certain term of ninety-nine years to come and unexpired of and in all that piece or parcel of ground, [describe the premises as in the lease,] demised, by indenture of lease, bearing date the day of 18 and made between, &c. at the yearly rent of all and singular which goods, chattels and premises are the property of the said C. D., and that the said goods and chattels are worth, to be sold, the sum of of lawful money of Great Britain ; which said goods and chattels I the said sheriff", on the day of taking this inqui- sition, have seized and taken into His Majesty's hands, according to the command of the said writ ; and the jurors aforesaid, upon their oath aforesaid, further say, that the said C. D. on the said day on which he was outlawed, or at any time since, had not, nor on the day of taking this inqui- sition hath any lands or tenements, or any other or more goods or chattels in my bailiwick, to the knowledge of the said jurors, which can be seized or taken into His Majesty's hands by virtue of the writ. In witness whereof, as well I the said sheriff^, as the said jurors aforesaid, to this inquisition have set our seals, the day and year first above-mentioned. Return to be The within-named C. D. is not found in my bailiwick : indorsed on the The residue of the execution of this writ appears in the inqui- **'"'• sition hereto annexed. The answer of, &c. (h) Dalt. 214, 21.5. RETURN OF WRITS. CAP. UTL. 351 [As before, unto these toorrfs,] upon their oath say, that Return of J. S. in the said writ named, liath not, nor had he on the """« '"'""• day of on which day he was outlawed, any goods or chattels, lands or tenements, in my bailiwick, to the knowledge of the said jurors, which can be seized or taken into His Majesty's hands by virtue of the said writ. In wit- ness, Szc. By virtue of this writ to me directed, I have sold the goods Return of and chattels within-mentioned, for the within-mentioned sum vendiuoni of being the dearest price I could get for the same, ^'/'"""•''• which monies 1 have before the barons of the king's Exche- quer at IVestminster, at the day within-mentioned, ready to be paid to His Majesty's use. The answer of, &c. Distringas. To a distringas (John Denn nuper vice com. Summoners are,< and distrained. ^Richard Fenn. Issue 40 s. The answer of J. A. esq. sheriff. The within-named J. S. hath not any lands or chattels Nihil to a. dis- in my bailiwick where or by which I can distrain him as tring. against a within I am commanded. The answer of, &c. member. In debt upon a distringas, the sheriff returned that he sheritr returned had sent to the bailiff of the hberty, and that he gave no that he had sent answer; and for that he did not further return that he butnotwVu/.' had nothing in his baihwick, he was amerced (x). The sheriff may return to this writ, tardt, " but not May return against the late sheriff,'" on his return of cejyi ; in that ''"■''^• case, he must return issues (y), and not less than 405. Although the words of the distringas are, that the Ought to dis- sheriff distrain the defendant by all his lands and chattels, tram reasonably, yet he ought to distrain him reasonably, and not accord- ing to the words of the writ (z). The usual issues on the first distringas are 405. on the Usual issues. second 4 1, and so double the sum, except the rule comes to the contrary ; as where further costs incurred in con- sequence of the delay (a). The execution of this writ appears in the panel annexed. Distringas The answer of, &C. jnratonun. Middlesexy'VTh.e names of the jury between A. B. plain- to wit. J tiff, and C. D. defendant, in a plea of debt. {Here insert the names ofthejiirij.) (i) Br. Ret. 23. (z) Br. 120. (i/) Br. 24. (a) Philips r. Morgan, 4 B. &; A.G52. 352 Warrant on a writ of ad quod damnum. An inquisition taken on a wiit of ad (jiiod damnum. c. 3. Summons on the land to be RETURN OF WRITS. AD QV . DAMN. DOWER. There are distringas against bodies corporate, peers, members, &c., all of which are to have issues retm'ned on them, or nihil, as before mentioned. -v nt.] To Writ of Ad quod Damnum. T. B. esq. sheriff of the county aforesaid, to to wit.j" A. B my bailiff, greeting. By virtue of His Majesty's writ of ad quod damnum, under the great seal of Great Britain, to me directed, I command you, that forth- with you summon die several persons hereundernamed, that they be and appear before me on the day of at of the clock in the forenoon of the same day, at the house of commonly called or known by the name or sign of the in in my county, then and there to inquire if it will be to the damage or prejudice of our sovereign lord the king, or of any other, if our said lord the king should grant unto M. E. in the said wi-it named, license to inclose certain footways, or paths, or passages, in the said writ particularly specified ; and all and every such other matters and things as shall be then and there given them in charge. Hereof fail not, as you will answer at your peril. Given under the seal of my office the day of in the year, &c. \An inquisition indented, taken at the in to wit.j the said county, on the day of in the year of the reign of our sovereign lord IVilliam the fourth, &c. and in the year, &c. before J. B. esq. sheriff of the said county. By virtue of a wi-it of our sovereign lord the king to me directed, and to this inquisition an- nexed, by the oath of C. M. &c. who being charged and sworn upon their oath, say, that it will not be to the pre- judice or damage of our sovereign lord the king, or of any other, if our said lord the king should grant to M. E. in the said writ named, license to inclose a certain way or road lying within and under the south walls of the city of C. leading from, &c. and also, if the said M. E. doth hold the said way or road so inclosed to him the said M. E. his heirs and assigns for ever, so that there be and remain, instead of the said way or road, so to be inclosed as afore- said, another way or road as convenient and commodious for travellers and passengers passing through the same. In vcitness, S)~c. To Writ of Dower. By 31 El. it is enacted, " That after every sunmions upon the land in any real " action, fourteen days at the least before the day of the RETURN OF WRITS. DOWKR. " return thereof, proclamation of the summons shall be " made on a Sunday, in form aforesaid, at or near to the " most usual door of the churches or chapel of that town " or parish where the land whereupon the summons was " made doth lie, and that proclamation so made as afore- 1 " said shall be returned, together with the names of the| *' summoiiers; and if such summons shall not be proclaimed' " and returned, according to the tenor and meaning of " this act, then no grand cape to be awarded, but an alias *' and phiries summons, as the cause shall require, until " a summons and proclamation shall be duly made and " returned, according to the tenor and meaning of this act." Upon a writ of dower, the sheriff must first summon the defendant upon the land, and afterwards to proclaim the summons at the church-door of the parish where the land lieth ; and it is said, a smnmons personally on the de- fendant seems sufficient, without either summons on the land or proclamation at the church-door (h). r Jolin Doe Pledges to prosecute •• and {^Richard Roe. Summoners of the within- J ' , ' named C. D. are - 'j ^ p And at the most usual door of the parish church of Saint S- within-mentioned, on Sunday, the day of in the year within-written, immediately after divine service and sermon ended, I did cause public proclamation to be made, according to the form of the statute in such case made and provided. The answer of, &c. Upon the grand cape, the sheriff hath two things in command ; the one to take the land in the hands of the king, and the other to summon the tenant ; but the first is mere form, and void, and the sheriff ought not to seize the lands into the king's hands by force thereof. He must summon the tenant to answer to his default, and further to answer to the demand (c). And the sheriff ought to return the names of the summoners {d). If the place be within a franchise which hath full return of writs, then the sheriff is to write to the bailiff, who is to make return to the sheriff (e). The grand cape must be served fifteen days before the return-day (/). (h) Dalt. 225. (e) Dalt. 249. Lib. TiUr. 399, b. (c) Dalt. 249. (/) Br Gr. Cape. 29. \d) Br. Ret. 86. N. R. Brev. 178. Dalt. 219. 3->.3 made 14 days efore return of writ, and proclamation at the church door. What sherift" is to do. Return to a writ of dower. Proclamation thereon. (iruitd cape. Franchise. AN'hfn to be served. J54 If no lands. Return of grand cape. Return to a writ of hab.fac. teisinam. How to put the demandant in possession. What sheriff may deliver. If there are three manors- RETURN OF WRITS. DOWER. If there be no lands, &c. the sheriff may return nihil (g). By virtue of this writ to me directed, I have hy A. B. and E. H. good and lawful men of my bailiwick, given notice to the within-named C. D. to be and appear before the king's justices at Westminster, at the time and place within-mentioned, as I am within commanded ; and I have taken, by the view of I. S. and T. H. honest and lawful men of my county, into His Majesty's bands, the land and premises within-mentioned, as also I am within commanded. The answer of, &c. The words of the writ are, take into our hands, by the view of honest and lawful men of your county, ten mes- suages, &c. (A). The execution of this writ appears in a certain schedule hereto annexed. The answer of, &c. By virtue of this writ to me directed, and to this schedule hereto annexed, I humbly certify to the justices of our lord the king of the bench, that on the day of in the year of the reign of His present Majesty, I have delivered to the within-named P. B. full seisin of the third part of the messuages, lands and premises, with the ap- purtenances, in the said writ specified, (that is to say,) of two messuages, situate and being in the parish of ^. in the said county, and in the tenure of J. B. and C. D. with the appurtenances thereto belonging, and also of two acres of land, with the appurtenances, in the parish and county aforesaid, in the possession of, &c. to hold to the said P. B. in severalty by metes and bounds, as and in the name of dower of her the said P. B. of the endowment of the said /. P. her late husband, as by the said writ I am commanded. If a woman recover in a writ of dower, the sheriff may put her in possession or seisin by a clod, or by grass growing upon the land, or by any beast being thereupon, &c. {i). In a writ of dower, a writ went to the sheriff to deliver the wife ten marks per annum in land and rent, for her dower ; and the sheriff delivered her, in land, five marks in yearly value, and five marks in rent issuing out of the land whereof she was dowable, and it was holden a good endowment {k). In dower of three manors, or three acres, the sheriff may assign to the wife one manor, or one acre, for all ; and (^) Fitz. 113. (/i) 3 Wils. 55. (;) 40 E. 3. Fitz. Dow. 38. (/c) Bi. Dow. 61. RETURN OF WRITS. — DOWER. Iio may assign the whole manor with the advowson, or may assign the third part of each, and the third present- ment (Z). And note, that in dower, the sheriff is to make execu- tion, and put the wife in execution of the third part by metes and bounds, if he can (m). And here tlie sheriff is a judge, and may execute the same himself, and shall not need to do it jjer sacramentum, duod. &c. But if the sheriff and the wife shall come together to the land, the sheriff may not make execution by these words, or in this manner, i. e. I deliver the seisin of the third part of the land according to the recovery ; for that is not good (w). In some cases, the wife cannot have her dower assigned by metes and bounds, but must hold her dower per my et per tout in common : as of the profits of a mill, or of a wood, which coparceners hold, &c. (o) ; or of a common of pasture {p), or of an office, or of lands held in com- mon {q), and she may have a third part of the pi'ofits assigned to her (r). — ~1 An inquisition, indented, taken at, &c. in the to wit. J county aforesaid, on the day of in the year of the reign of our sovereign lord William the fourth, &c. and in the year of our Lord before me, N .C. Esq. sheriff of the county aforesaid, by virtue of His Majesty's writ to me directed, and to this in- quisition annexed, by the oath of S. C. J. G. [here name the iivelve jurors,^ good and lawful men of my county, who upon their oatli say, that the within-named S. A. on the day of died seised in his demesne as of fee of and in one messuage, called the one stable and one close of meadow called, &c. ^naming the several particulars,) situate, lying and being in in the parish of in the county aforesaid, and of and in f^l. iQs. 4.d. issuing from and out of the following mes- suages in aforesaid, to wit, of los. rent issuing from and out of a meisuage in the tenure of A. R.; of los. rent issuing from and out of a messuage in the tenure of J. T.; of los. rent issuing from and out of a messuage in the tenure of J. H. ; of 105. rent issuing from and out of a messuage in the tenure of R. S.; of 10 s. rent issuing from and out of a messuage in the tenure of IV. l\ ; of 10 s. rent issuing from and out of a messuage in the 355 (0 12 E. 4. Br. Dow. 72. Plow. 6.i, GG. (w) 3 El. ace. & Co. L. 34 & 32. (m) Fitz. Sci. fa. 92. (<)) Fitz. Avowry, 9. (p) Fitz. Ent. 75. Assise, 435. (9) Fitz. 149. (j) Co. L. 32. Sheriff to put the wife ill execution of third part. In some cases the wife cannot have her dower assigned by metes and hounds. Inquisition in dower. A A 2 356 Warrant on the writ of partition. RETURN OF WRITS. — DOWER. — PARTITION. tenure of G. /?, ; of 8 s. rent issuing from and out of a messuage in the tenure of J. P. ; of 6 5. rent issuing from and out of a messuage in the tenure of K. D. ; of Ss. rent issuing from and out of a messuage in the tenure of R. C- ; of 1 /. rent, issuing from and out of a messuage in the tenure of S. O. : and of and in the reversion of the same messuages after the expiration or sooner determination of certain terms of years thereof respectively granted ; and that the said S. did not die seised of any other messuages, lands or tenements, to the knowledge of the same jurors. And the jurors aforesaid on their oath further say, that the tene- ments and premises above named, with the appurtenances, are of the clear yearly value, in all issues beyond reprizes, of 60 /. 11 s. 3 d ; and that the said B. S. esq. and M. his wife, in the writ aforesaid named, have sustained damages by reason of the detention of the dower within specified, from the said day of the issuing of the writ original within mentioned, beyond the value aforesaid, to 10/. 55. 11 d. and for their costs and charges by them about their suit in that behalf expended, to 10 s. In witness whereof, as well I the said sheriff, as the jurors aforesaid, have to this in- quisition interchangeably set our seals, the day, year and place abovesaid ; and I do further humbly certify to the justices of the lord the king at Westminster, that by virtue of the said writ, 1 did on the day of in the year aforesaid, cause the said B. and M. to have full seisin of the third part of the tenements and rents aforesaid, with the appurtenances, to wit, of the said messuage, with the appurtenances, called the in the tenure o? A. B. the said messuage with the appurtenances, &c. ; of the said 105. rent issuing from and out of the said messuage in the teimre of A. R.; of the said 105. rent issuing from and out of the said messuage of J. T. ; of the said 105. rent issuing from and out of the said messuage in the tenure of F. S.; 9 5. 9 d. rent, parcel of the said 105. rent, issuing from and out of the said messuage in the tenure of ./. H.\ and also of the reversion of the four messuages last mentioned, after the expiration or sooner determination of the said terms of years thereof respectively granted, with the appurtenances, to hold to the said B. and M. in seve- ralty by metes and bounds as the dower of the said M. of the endowment of the said S. A. her late husband, as by the said writ 1 am commanded. N. C. Esq. sheriff. Warrmit on Writ of Partition. ss. A. B. esq. sheriff of the county aforesaid, to B. L. and iM. L. my bailiffs of the hundred of S. greeting. By virtue of His Majesty's writ to me directed, I command RETURN OF WRITS. — ^PARTITION. 357 you, that if C. K. shall give me security that her suit shall be prosecuted, then summon M. C. that he be before His Majesty's justices at IVestminster, in fifteen days o( Easter, to show why the said C. K. and M. C. hold together and undivided ten messuages and twenty acres of land, &c. [here set forth the parcels as in the tvrit] with the appur- tenances, in the parish of A', in the said county, and whereupon the said C. K. denies partition thereof to be made between them, according to the form of the statute in such case made and provided, and unjustly permits the same to be done, contrary to the statute. Hereof fail not. Given under my seal of office, &c. This is to be served on the tenant of the premises, if found, if not, the wife, son or daughter of the tenant, g ^ 9 ^y 3 (being 21 years old,) 40 days before the return. c. 31. s. i. r John Doe Return of the Pledges to prosecute,< and writ. [ Richard Roe. (IS Summoners of the within-named J ' * C. K. and B L. are \ L W The answer of ^. B. Esq. sheriff. It is said (s), that when judgment is given upon the writ, Judgment on it is thus: the writ of par- tition. " That the partition shall be made between the parties, " and that the sheriff in his proper person shall go to the " lands or tenements, &c. and that he by the oath of " twelve lawful men of his bailiwick, &c. shall make par- " tition between them, and that one part of the lands and " tenements shall be assigned to the plaintiff, or to one of " the plaintiffs, and another part to another parcener, &c. " not making mention of the eldest sister more than of the " youngest." It appears there was great inconvenience to the sheriff to attend in person, sometimes on account of the distance, at other times his health, or some other infirmity, that might prevent him ; for which reason an act was made to s & 9 W. 3. ease him in his duty, by which it is enacted, c. 3i. s. 1. " That when the high sheriff, by reason of distance, in- If the sheriff firmitv or other hindrance, cannot conveniently be present cannot attend, , "' . f. .1 ^ • ^•.- xi J under-shentt at the execution of any judgment in partition, tlie under- ^^^j^ ^^^^ sheriff, in the presence of two justices of the peace, may justices may. proceed to execution by inquisition : and the high sheriff shall make the same return as if he were personally pre- (s) 1 Inst. s. 2 18. A A ;i 858 In case of disability of sheriii' or his umler-sherifF, the justices are to attend, s. 5. Made perp. by 3&4Ann.c.l8. What sherift' is to do. c, 34. Fees. s. 5. Ought to be shown the land, rurchascr of tenants in common, to BETUKN OF WRITS. — PARTlTlOTs. sent ; and the tenants of the lands shall be tenants for such parts, set out severally to the respective owners, under the same rents and reservations ; and the owners of the several purparts shall make good unto their respective tenants the said parts severally, as they were bound to do before par- tition made. The sheriffs, their under-sheriffs and deputies, and in case of disability in the high sheriff, all justices of peace, shall give due attendance to the executing such writ of partition, (unless reasonable cause be shown to the court upon oath,) or otherwise be liable to pay unto the de- fendant such costs and damages as shall be awarded by the court, not exceeding 5 1, for which the defendant may bring his action in any of His Majesty's courts at Westmin- ster.; and in case the demandant doth not agree to pay unto the sheriff or under-sheriff, justices and jurors, such fees as they shall demand, the court shall award what such person shall receive, having respect to the distance of the place from their habitations, for which they may severally bring their actions. On receipt of the writ, the sheriff is to summon a jury of twelve men qualified by the several acts mentioned in 3 G.I. and to give notice to the parties to attend him, and on the day he is to go to the land, &c. with the jurors (which ought to be shown them,) and then shall see the same and the boundaries thereof; then, on evi- dence being given him, he draws up in form an inquisition, which he and also the jurors are to sign and seal, pur- suant to the writ ; and the reason why they sign and seal the same is for the better strengthening of the partition, and that the sheriff should not return what partition he himself thinks proper : when the partition is made and the inquisition signed, &:c. he his to return the same to the justices, under his seal and the seal of the 12 jurors, so that they may give their final judgment thereon (^). If the fees are not paid to the sheriff, &.c. by the de- mandant, then the court shall award the same, for which the sheriff', &c. may bring their action severally. It is said that the jury ought to be shown the lands before they make partition ; but if not, they must make it to the best of their judgment ; for they are compellable to make partition at their peril {u). Upon a partition to be made between tenants in com- mon, where one of them hath purchased lands that lie (0 Co. Lit. 249. 168, b. 169. (u) Dyer, 265, 266. RETURN OF WRITS. PARTITION. 359 intermixt, and cannot be known, the party which pur- show intermixt chased such lands ought to show the jury the bounds, (or ^^"•^• the certainty of the number of acres) of his lands so pur- chased ; but if neither party will give evidence therein to the jury, yet the sheriff and the jury are to make partition at their peril, as well as they can (x). If there are two manors, the sheriff may assign' one Whatsherift" manor to one, and the other manor to the other, so that ™^^ assign. both be of equal value (y). So an advowson may be divided between parceners, the Advowson. one to present one turn, and the other another turn (z). So a rent charge. But estovers, as house-boot, hay- Rent-charge, boot and fishery uncertain, as without number, cannot be ^c. divided (a). The profits of a mill, dove-house, or courts, tithes, and of stallage of fair, may be parted. If a county-palatine descend to divers coparceners, and if oo. palat. they make partition, every one of them shall have a '^"JJ^J" "'^^^ several county-palatine, and the liberties and prerogatives ^ in it (5). So if coparceners of a manor make partition, every one Of coparceners shall have a several manor and court-baron. ^^ ^ manor. In the inquisition it is fit that the sheriff name the To name the lands, &c. and allot and show the contents of them. Inquisition.'' "1 An inquisition, indented, taken at, &c. in inquisition on to wit. J the county aforesaid, cfh, &c. before me, a writ of paiti- N. C. esq. sheriff of the said county, by virtue of His tion. Majesty's writ of partitione fadenda to me directed, com- manding me to cause ten messuages, &c. \h.ere set forth the premises] in in my county, to be divided into two equal parts, and one part of those parts to be delivered and assigned to C. K. and the other part thereof to M. C. to hold unto them and their heirs in severalty, on the oath of A. B. C. D. E. F. &c, \_here set forth the jurors 7iamcs'\ twelve free and lawful men of the said county, being charged and sworn to inquire of all and singular the matters and things in the said writ mentioned and contained, on their oath say, that the messuages, lands, tenements and annual The parcels rents', with the appurtenances, comprised in the schedule may be set annexed, marked with the letter A. is one equal part of forth at larg^e, the messuages, lands, tenements and annual rents, with the -^^ ^j^^ imiui- ' appurtenances, specified in the said writ, and that the sition, without several messuages, lands, tenements and annual rents, com- annexing a (i) Dalt. 265. C«) Co. Lit. 32. (i/) Bro. Part. 29. (6) Dalt. Gl. 16 Vin. 224. (s) Co Lit. 32. 7 Ann. c. 18. A A 4 3C0 RETURN OF WRITS. EXCHEQUER PROCESS. schedule, the prised in the schedule hereto annexed, marked with the same as in an letter B. is the other equal part thereof, and the said mes- ° ' suages, lands, tenements and annual rents, being so into two equal parts divided, I the said sheriff having respect to the true value thereof, on the day and year aforesaid, in the presence of the parties, by the oath and in the presence of the jurors aforesaid, the said first mentioned equal part comprised in the schedule marked with the letter A. to the said C. K. have caused to be delivered and assigned, and the said last-mentioned partition, comprised in the schedule marked with the letter B. to the said M. C. have caused to be delivered and assigned ; to hold to them and their heirs in severalty, by the assignment and allotment made as aforesaid, according to the exigency of the said writ, so that neither the said C. K. nor the said M. C. have more of the said messuages, lands, tenements and annual rents aforesaid, with the appurtenances, than to them thereof belongs, and the said C. K. and M. C. may severally ap- portion themselves. In witness whereof, as well 1 the said sheriff, as the jurors aforesaid, have to this inquisition set our hands and seals, the day and year first above written. Of the Exchequer Process. Twice a year processes issue fi'oni the court of Exche- quei-, directed to the slierifF of each county, to execute and make returns ; and also a writ of summons from the pipe, to summon the sheriffs to appear before the chan- cellor and barons in the Exchequer on the day prefixed, to have the monies collected, and which they owe to the king ; and also a writ of summons of the green wax for their like appearance. To the two latter writs, the sheriff makes no return in writing ; but he is apposed before the cursitor-baron and the foreign apposer, he therefore keeps a copy of those schedules, so that he may answer, on their being read over to him. The other writs are called, 1. " A distringas against collectors of taxes." 2. " The like, against inhabitants of parishes, for iii- " sufficiency of collectors." 3. " The like, against persons being accountants to " the crown, for taxes or money imprest, namely, receivers " general, agent?, paymasters, contractors, &c." RETURN OF WRITS. — EXCllEQUEK PROCESS. 361 4. " The like, against the executors of deceased ac- " countants ;" and 5. " The long icrit, which is against the body, lands " and goods of the persons named in the schedules " annexed." For an excessive levy (for taxes) under 43 Geo 3, he is c 99. not entitled to any notice of action under s. 70 (c). As to the Return of those Writs. To No. 1. The proper return is nihil, unless the sheriff is informed that the collector has actually received the insuper ; in that case he should distrain and return large issues. The propriety of a nihil return to this writ (ex- cept in the case above-mentioned) arises from hence : When an insuper is set by a receiver-general against a parish, the first distringas always issues against collectors, as if the insuper had been actually set against them, because it is always to be presumed that the parish has paid the collectors ; but after a nihil return on the dis- tringas against collectors, the next distringas is issued against the inhabitants of the parish, whether the money has been received by the collectors or not, because the inhabitants are responsible for the insufficiency of the col- lectors ; but so long as issues are returned against collec- tors, the distringas does not issue against the parish. To No. 2. To this writ the proper return is issues not less than one shilling in the pound. If to save trouble and expense the parish offer to pay the insuper into the hands of the sheriff, he may then receive it, and must then state it in his return, and thereupon a record of the payment is made and drawn down into the pipe in order to be set in charge on the sheriff. To No. 3. To this writ the proper return is " issues." There being no person whose proper business it is to point out to the sheriff the residue of the persons named in the schedules to this lorit, and there being at the time of issuing the same some uncertainty whether the whole of each insuper remains due ; sums in part thereof being paid into the receipt from time to time, without bringing the tallies to the Exchequer office, in order to meet the proofs ; (r) Copland v. Powell, 1 Bing. 369. 3G2 RETURN OF WRITS. — EXCHEQUER PROCESS. the sheriff should act with caution in the execution thereof: but though he cannot be expected to distrain and return issues against every person named in the schedules, yet some reasonable diligence should be used by him in the execution of this writ. To No. 4. Unless the executors are known, the sheriff cannot return issues on this writ, and must therefore make a return of nihil. To No. 5. The proper return and inquisition to be taken in pursuance of this writ are well understood. The general process is so termed in contradistinction to special process. The former consisting of various writs which are issued from the king's remembrancer's office after every issuable term, agreeably to ancient usage, against various debtors to the crown conjointly, or generally, whose names or debts are inserted in schedules annexed to each of those writs. The latter, or special process, consists of separate writs, which issue at no stated periods, but as occasion may require, against individual debtors to the crown, separately and specially, for the recovery of their debts. The execution of the general process continues to be confided to the discretion of the sheriffs, regulated by their oaths, in the apposals, in the same manner as it was in ancient times, when they were principally employed in the collection of the revenue ; but the execution of the special process of this court is superintended by the so- licitors of the different branches of the revenue at whose instance the same are issued. By a Reg. Gen. sheriffs are in future to return all writs and processes issuing out of the remembi-ancer's office against the king's debtors within seven days from the return-day, and the same shall be apposed at least four days before the last day of the term in which they are returnable ; and the under-sheriff shall attend one clear day before such apposal, before the sworn clerk, to be examined touching such processes ; and no slight answer is to be given on such apposal : upon which such clerks shall make out a certificate of defaulters to be taken into custody for their contempt {d). (d) 9 Pri. 80. RETURN OF WRITS. — EXCHEQUER TROCESS. 303 I humbly certify that the collectors in the schedules Return of «;/u7 hereunto annexed named, have not any thing in my baili- ^o No. 1. wick whereby 1 can distrain them, or any of them, nor are they found in the same. The answer, of, &c. By virtue of this writ to me directed, I have distrained Return of issues the inhabitants of the several parishes in the schedules ^" ^°- ^• hereunto annexed mentioned, as within I am commanded, and return issues on the several sums in the said schedules mentioned, after the rate of l 5. in the pound. The answer of, &c. Middlesex^ W. C. esq. and P. M esq., sheriff of the Return theieto to wit. J said county, do certify to the barons of levied. His Majesty's court of Exchequer at IVif^tminster, that by virtue of the writ hereunto annexed, I have distrained the inhabitants of, See. in the 5th schedule to the said writ annexed mentioned; and they have thereupon paid into my hands the several sums of and in the said schedule mentioned, and also the several sums of and in the 7th schedule to the said writ annexed mentioned, and also the sum of &c. \here state the levy], amounting in the whole to the sum of which said money I have ready. The answer of, &c. I humbly certify that the persons in the schedules an- Return of nihil nexed named have not any thing in my bailiwick whereby to No. 3. I can distrain them, or any of them, nor are they, or any of them, found within the same. The answer of, &c. I humbly certify that the executors, administrators, oc- Return of jii/kI cupiers, heirs, or tenants, within mentioned, have not, nor to No. 4. hath any of them, any thing in my bailiwick whereby I can distrain them or any of them, nor are they, or any of them, found in the same. The answer of, &c. The several persons in the schedules hereunto annexed Return to the _ named, have not, nor hath any of them, any goods or '""S^ ^'''' "• ^ chattels, lands or tenements, in my bailiwick, whereof or whereby I can levy on them the several sums of money respectively charged on them, as within mentioned, or any part thereof, as within I am commanded, nor are they, or any of them, found in my bailiwick. The exe- cutors, administrators, and possessors, heirs and terre- tenants within-mentioned, have not, nor hath any of them, any lands or chattels in my bailiwick whereof or whereby I can distrain tliem, or any of them, as within I am com- manded ; nor are such executors, administrators, posses- 364 The inquisition. Return to the long writ process against persons for recognizance forfeited, &ic. RETURN OF WRITS. — EXCHEQUER PROCESS. sors, heirs, or terre-tenants, or any of them, found in my bailiwick. The residue of the execution of this writ appears in a certain inquisition hereunto annexed. The answer of, &c. Middlesex 1 An inquisition indented, taken at to wit. J on the day of in the year of the reign of our sovereign lord William the fourth, &c., before me A. B. esq. and C. D. esq. sheriff of the said county, by virtue of His Majesty's writ to me the said sheriff directed, and to this inquisition annexed, to inquire of cer- tain matters in the said writs specified ; by the oaths of A. B. C. D. [here name the tivelve jurors] honest and lawful men of the bailiwick of me the said sheriff, who upon their oath say, that to the knowledge of them the said jurors, the several persons in the schedules to the said writ an- nexed named, had not, nor had any of them, any lands or tenements, in my bailiwick, upon the several days on which in the said schedule each and every of them are mentioned to have first become His Majesty's debtors, or at any time since, to the day of the taking of this inquisition : nor have or hath the said several persons, or any of them, any goods or chattels in my bailiwick. And the jurors afore- said, upon their oath aforesaid, further say, that they know not whether any of the said several persons be dead, or on what day, or in what year, or where they, or any of them, died ; nor had the said several persons deceased, or any of them, to the knowledge of the said jurors, any goods or chattels in the bailiwick of me the said sheriff, at the time they respectively died ; nor did the said several persons deceased, or any of them, to the knowledge of the said jurors, die seised of any lands or tenements in the bailiwick of me the said sheriff; therefore, the said jurors say, they cannot appraise any such goods or chattels, lands or tenements as aforesaid, as by the said wTit is commanded : nor can I the said sheriff take or seize any such goods or chattels, lands or tenements as aforesaid, into His Majesty's hands, as by the said writ I am commanded In witness whereof, as well I the said sheriff, as the said jurors, have to this inquisition set our hands and seals, the day and year first above written. I have levied of the goods and chattels in my baili- wick of the several persons named in the schedule to this writ annexed, marked A. and signed by me the under- named sheriff, the several sums of money set opposite to the respective names of such several persons, and amount- ing in the whole to the sum of 20/. which money remains in my hands, ready to be paid to His Majesty's use. The several other persons named in the schedules annexed to RETURN OF WRITS. — EXCHEQUER PROCESS. 365 this writ have not, nor hath any of them, any goods or chattels in my baihwick whereof or whereby I can levy the several sums of money charged upon them, and each of them, in the said last-mentioned schedule, or any part thereof, as within I am commanded, nor are such several persons, or any of them, found in my bailiwick. The exe- cutors, heirs and tenants within mentioned, have not, nor hath any of them, any lands or chattels in my bailiwick, whereof or whereby I can distrain them, or any of them, as within I am commanded, nor are they, or any of them, found in my bailiwick. The residue of the execution of this writ appears in a certain inquisition hereunto annexed. The answer of, &c. Middlesex\ An inquisition indented, taken at, &c. on The inquisition. to wit. j the day of in the year of the reign, &c., before me A. B. esq., and C. D. esq. sheriff of the said county, by virtue of His Majesty's writ to me the said sheriff directed, and to this inquisition annexed, to inquire of certain matters in the said writ speci- fied, by the oath of J. B. &c., \the jurors names] honest and lawful men of the bailiwick of me the said sheriff, who upon their oath say, that to the knowledge of them the said jurors, the several persons in the schedules to the said writ annexed named, or any of them, had not any lands or tenements in the bailiwick of me the said sheriff, on the several days and years specified in the said schedules, in which they, or any of them, first became indebted to His Majesty in the several sums exacted in the said sche- dules, or ever after, until the day of in the year of His Majesty's reign, {the time of issuing the said •writ hereto annexed) ; and the jurors aforesaid, upon their oath aforesaid, further say, that they know not whether any of the said several persons be dead, or on what day, or in what year, or where they or any of them died ; nor had the said several persons deceased, or any of them, to the knowledge of them the said jurors, in the bailiwick of me the said sheriff, any goods or chattels on the several days and years in which they, or any of them died ; nor had the said several persons deceased, or any of them, to the know- ledge of them the said jurors, any lands or tenements, in the bailiwick of me the said sheriff, the several days and years in which they, or any of them, firs«t became indebted to His Majesty in the several sums charged upon them in the said schedules, or ever after, until the said day of in the year aforesaid, therefore, the said jurors say, they cannot extend any such lands or tenements as aforesaid, as by the said writ is commanded, nor can I the said slieriff take or seize any such lands or 30(5 If no goods ou the parson's piOCt'SS. If some are not found, and some are, return thus. AVanant to levy debts on llie pipe proeess. Add a copy of the schedule. Warrant to the officer to collect post fines and old rents. On the distr'ni' gm against collectors. RETURN OK WRITS. EXCHEQUER PROCESS. tenements, goods or cliattels as aforesaid, into His Majes- ty's hands, as by the said writ I am commanded. In wit- ness, &c. I think there is a process against clergymen for the arrears of the tenths, or first fruits, which may be re- tuiTied thus : I hereby certify, that the several persons in the sche- dule to this writ annexed, have not or hath either of them any goods or chattels, lands or tenements, in my bailiwick, whereby I can distrain them, or any or either of them, as within I am commanded, nor are they, or is either of them, found in the same. The answer of, &c. I humbly certify, that A. B. clerk, and G. H. clerk, two of the persons named in the schedule to this writ annexed, are not, nor is either of them, found in my bailiwick ; and I further certify, that by virtue of this writ to me directed, I have attached the rest of the several persons in the sche- dule to this writ annexed named, whose bodies I have before the said barons at the time and place within men- tioned, as within I am commanded. Middlesex\ A. I. and G K. esq. sheriff of the county to wit. J aforesaid, to C. K. my bailiff, greeting : By virtue of His Majesty's summons of the pipe to me directed, I command you, that of the several persons in the sche- dules hereto annexed named, in my bailiwick, you collect and levy the several sums of money therein respectively charged on them, due to His Majesty, so that I may have those monies before the barons of His Majesty's Exchequer at Westminster, on next to come. Hereof fail not. Given, &c. Middlesex'X A. I. and G. K. esq. sheriff of the county to wit. /aforesaid, to li'. R. my bailiff, for this pur- pose only, greeting : By virtue of His Majesty's writ of summons of the green wax to me directed, I command you, that of the several persons in the schedule hereunder written named, in my bailiwick, you collect and levy the several sums of money therein i-espectively charged on them, due to His Majesty, so that I may have those monies before the barons of His Majesty's Exchequer at Westmin- ster, on next to come. Hereof fail not. Given, &c. The schedule to the warrant is taken from the schedule to the writ. \_As before,'] I command you, that you distrain the several collectors in the schedule annexed named, by all their lands and chattels in my bailiwick, so that they, or any of them, do not meddle therewith, until 1 otherwise command RETURN OF WRITS. — DE EXC. CAP. — ELEGIT. 307 you, so that I may answer the issues of the said lands, and so that the said collectors do appear before the barons of His Majesty's Exchequer on, &c. to render an account to his said Majesty, as in the said schedule mentioned. Dated, &c. That you distrain the inhabitants of the parishes in the On distringns schedules annexed named, by all their lands, &c. as before, against inha- bitants. That you omit not, by reason of any liberty, &c., but On 'listrbio-os enter the same, and distrain the several persons in the against divers, schedules annexed named, by all their lands, &c., as before. To Writ of De Excommunicato Capiendo. The sheriff or other officer to whom the writ of excom- Need not bring municato capiendo, or other process, shall be directed, '" ^'"'^'jy ^* ^'"^ need not bring the body into the King's Bench at the j^g ^i^t. day of the return, but shall only return the writ thither, with declaration briefly in what manner he hath served and executed the same (e). If the sheriff take him, he is to be committed to prison To be committed without bail. If he make an untrue return, he is to for- feit to the party grieved, 40 Z. (f). I have taken the within-named J. D. whose body remains in the prison of the lord the king of N. under my custody. The answer of, &c. To Writ of Elegit. For the particulars of this writ, as to the execution sheriff not thereof, see title Execution, p. 143. Upon an eject- bound to deliver ment being brought on an elegit (g), it appeared upon the ^ nioiety ofeach inquisition, that it mentioned by name all the different fenemen't^ farms and tenements of the defendant's estate in the county, with their value, the number of acres in each, be the same more or less, the tenants names, yearly value besides reprizes, and the clear yearly amount of the whole ; and then repeating the names of a certain num- ber of them, their number of acres, more or less, and yearly amount ; it found that those particular farms and tenements were a true and equal moiety of all the said lands and premises of the defendant in the county, " which moiety of the said lands and premises I the said sheriff, on the day of taking this inquisition, have caused to gaol. Untrue eturn. Return of cei)i corpus. (e) 5 El. c. 23. U) lb. Dalt. 217. (g) Raslall, 2G2. Clif. 877. Litt. Ent. 574. 368 Return to an elegit. The inquisition. RETURN OF WRITS. — ELEGIT. to be delivered to the lessor of the plaintiff, by the pnce and extent aforesaid, &c." Cowper objected that the elegit had not been duly executed, and that the inquisi- tion was void on the face of it, " for that a moiety of each farm ought to have been extended, and delivered to the lessor of the plaintiff," and not a certain number of dis- tinct farms, amounting in value to a moiety of the whole. The court held this return to be good ; and Buller, J. said, " it is agi'eed, the moiety extended must be set out by metes and hounds ; I take the meaning to be, a moiety in value, which is ascertained by the jury" (A); which shows that the inquisition and return are good although separate lands have been extended, provided it does not appear that they amount in value to more than a moiety of the whole {i). Sheriff to impanel a jurj^. Sic. The extent and valuation of the lands, and the apprais- ing of the goods, must be by an inquest of twelve lawful men, and not by the sheriff"; although the writ speaketh of no inquisition {h). In all returns of this or any other nature, the words of the writ ought to be pursued (Z). The return to an elegit for a moiety of premises is bad if it do not state such moiety by metes and bounds (/??). The execution of this writ appears in the inquisition hereunto annexed. The answer of, &c. ss. An inquisition indented, taken at the house of J. K. called by the name or sign of the in street, in in the said county, on the day of in the year of the reign of our sovereign lord William the fourth, &c. before me S- C. esq. sheriff of the said county, by virtue of His Majesty's writ to me directed and hereunto annexed, on the oath of [here name the twelve ju7-ors] good and lawful men of my bailiwick, who being sworn and charged upon their oath say, that C. D in the said writ named, on the day of in the year of the reign of His present Majesty, on which day the judgment in the said writ specified was given against the said C. * was, and on the day of taking this inquisition is seized and possessed (71) (wi) Fenny i;.Durrant,l B.&A.43. (?() After the jury have found the parcels and appraised them, the she- riff must deliver a just moiety, ac- cording to the appraisement ; if he returns more or less, it is void. Dalt. 648. (ft) Dalt . 135 1 Salk 563. Carth. 453. I Sid. 91. Crc . Car. 319. (0 Den V. L. Abingdon, Doug. 475. Cc) 4 Co. 74. Dalt. 232. (0 Dalt. 548. RETURN OF WRITS. — ELEGIT. 309 of and in the several goods and chattels following, that is to say, \here set forth the goods'^ as his own proper goods and chattels, and the said jurors do appraise and value the same at the sum of 50 1., which said goods and chattels I have caused to be delivered to the said A. B. in the writ named, to hold to him as his own goods and chattels, in part satisfaction of the debt and damages in the said writ mentioned; and the jurors aforesaid on their oath aforesaid further say, that the said C. D. in the said writ named, at the time of giving the said judgment in the said writ specified, had not, nor on the day of taking of this inquisition hath, any other or more goods or chattels, or any lands or tenements, in my bailiwick, to the knowledge of the said jurors, which may or can be extended or ap- praised. In witness whereof, as well I the said sheriff as the said jurors to this inquisition have set our hands and seals, the day, year and place above mentioned. * Was, and on the day of taking this inquisition is, seized if lands and no in his demesne, as of fee, of and in a certain messuage or goods taken. tenement, stable and brewhouse, with the appurtenances, situate, &c. in the said county, and now in the tenure or occupation of /. S. at the clear yearly rent of 14/. in all issues beyond reprizes ; and also of and in a certain other messuage or tenement, situate in, &c. in the said county, in the occupation of W. S. of the clear yearly value of 8 /. in all issues beyond reprizes ; and also of and in a certain other messuage or tenement, yard and premises in aforesaid, now in the occupation of of the clear yearly value of 6 1, in all issues beyond reprizes ; and also of and in a certain other messuage, &c. in, &c. of the clear yearly value of 7 /. in all issues beyond reprizes ; and also, &c. of the clear yearly value of 505. in all issues beyond reprizes ; and also of and in a certain other small . messuage or cottage adjoining to the last mentioned messuage in S. aforesaid, now in the occupation of of the clear yearly value of 50 s. in all issues beyond reprizes ; [if the pi-emises are in mortgage, say, " which said " premises are subject to a mortgage made thereof by the " said C D. to one E. F. of by indenture bearing " date, &c. for the term of years at the yearly rent " of one pepper-corn, subject to redemption on payment " of and interest at five per cent, per annum, at " a day now past."] And the jurors upon their said oath further say, that the said messuage or tenement, stable, brewhouse, out-building, yard, garden and premises in S. aforesaid, in the occupation of the said G. H- of the yearly value of 14/. and the said messuage, yard and premises m )S. aforesaid, in the occupation of the said 7'. A. of the 370 RETVRN OF WRITS. EXIGENT. yearly value of()/. are a true and equal moiety of all and singular the said lands, tenements and hereditaments of the said C. D. in the said writ named, and which said moiety I the said sheriff, on the day of taking this inquisition, have caused to be delivered unto the said A. B.'m the said writ named, at the reasonable price and extent aforesaid, to hold to him and his assigns as his free tenements, according to the form of the statute in that case made and provided, until the debt or damages in the said writ mentioned shall be thereout fully levied as by the said writ I am com- manded ; and the said jurors upon their said oath further say, that the said C. D. in the said writ named, at the time of the rendition of the said judgment in the said writ specified, had not, nor on the day of taking this inquisition hath any goods or chattels, or any other or more lands or tenements in my bailiwick, to the knowledge of the said jurors. In witness whereof, as well I the said sheriff as the said jurors have to this inquisition set our hands and seals, the day and year, and at the place above written. What sheriff The sheriff may to this writ return nihil, or that he hath may return. extended the land of the defendant, but that he cannot deliver the same to the plaintiff, for that another had the same in extent before (o). Exigent and Proclamation. The writ of e.rz^en^ commands the sheriff to cause the defendant to be required from county-court to county- court, or from busting to busting, if m London ; that is, at five successive county-courts, or hustings, until he be outlawed, if he do not appear, and if he appear, to take him. Sec. If there be not jive county-courts, or hustings, between the teste and return of it, there issues an exigent de novo, grounded upon the sheriff's return to the former writ, with a clause (from whence it is called an allocatur exigent) directing the sheriff to allov) the sereral county-courts, at which the defendant has been already requii-ed, and de- manding him again to appear. Exigents are to be pro- claimed five county days, one after another, and the proclamation in open court, once in the open sessions, and once at the parish church door, where the defendant doth or lately did dwell, that he appear and yield and answer to the law, or else that he shall he outlawed', and if he ap- pear, the sheriff is to take and imprison him ; if not, he (o; Dalt. 233. 12.5. court to be omitted. RETURN OF WRITS. EXIGENT. 371 records his default each court day ; if he do not appear the fifth court day, then the coroner shall give judgment ; for the form of which see title County-Court, p. 207. Upon the return of the exigent, it must appear that it was by the judgment of the coroners, (for they be judges ;) otherwise it is error {p). And the defendant shall be called by the sheriff on the exigent, at five county-court days, to answer to the law, and if he come not within that time, he is to be returned outlawed. And no county-court ought to he omitted; but when the No county- proclamation begins, the sheriff ought to pursue the same at every county after, without omission {q). The return of an exigent shall be void, by reason of un- Return of an certainty, as where the sheriff retuiTis the exigent, quod ad exigent, void comit. Lancastr. tent. ibid. &c. when it should be, ad co- °' ""'"^'^ ^'" ^' mitat. Lancaster, tent, apud Lancast. (or at some other certain places, whereto ibidem might have relation.) So if the sheriff returneth the writ thus : At my county-court held at the , &c. and sets not down in what county {r). So the sheriff returneth, that he made proclamation at ^^ y^^'" ^°'' . his county-court, held talio die, and showed not what jJj^e^P'o^''^'"^*'"" year («). If the party brings a supersedeas to the exigent, and Supersedeas delivers it to the sheriff, the outlawry shall not be pro- f°™*^^' °^'^- 1 . . ' •' r lawry not nounced (0- pronounced. If the defendant come in at any of the five courts, the If defendant sheriff is to take and imprison him. But if he comes not, *:P'".^^"^' then the sheriff, with the assistance of one coroner at the take'him. least, is to pronounce him outlawed (m). And the sheriff to return the same. Upon an exigent, a return was made, that the party was Tleturn of party dead, and held not good ; for the sheriff hath no authority ^'^^^' ""' 8°°''* by the exigent but to call the party from county to county, to appear, and answer to the law, and if he appear, then to take and imprison him (x). The sheriff may return that the coroners were absent May return on the quinto exact, therefore he could not proceed. Or coroners absent, that no coroner was there but one, who refused to pro- nounce the outlawry (?/). (p) Dalt. 236, cites 21 H. 7. 33. (t) Dalt. 238. Co. Litt. 288. (m) Finch, 340. (q) Plo. 37. (r) Dalt. 239. (r) Dalt. 237. (y) Lib. Intr. 334, 335, 330. (s) 27 H. 8. Br. Ret. 3. B B 2 or no coroner. 372 On indictment. No county- court. When super- sedeas may be returned. Proclamation. c. 4. c. 3. s. 1. Eiigetit in Wales, Lancas- ter, Cheshire or RETURN or WRITS. — EXIGENT. Upon an indictment before j ustices of the peace, if the exigent shall be returned, quarto exactus, and that he cannot call the party any more for shortness of time, it seems to be a good return (z). That there was no county-court held from the receipt of the writ to the day of the return (a). A supersedeas may be returned by the sheriff before the fifth exaction to any one of the defendants in the exigent, and the exaction against the others, which the sheriff allows, and ceases to proceed against him who is superseded, by stating that he has ceased from the exe- cution of the writ as against him who is superseded, having received His Majesty's writ for that purpose (&). In addition to the exigent, a writ of proclamation is introduced by the 6 H. 8. But this writ is at present governed by the 31 El. which enacts, Tliat in every action personal, wherein any exigent shall be awarded out of any court, sl xvrit of proclamation shall be awarded out of the same court, having day of teste and return as the said writ of exigent shall have, directed and delivered of record to the sheriff of the county where the defendant, at the time of the exigent so awarded, shall be dxKelling ; which writ of proclamation shall contain the effect of the same action. And the sheriff to whom such writ of proclamation shall be delivered, shall make three proclamations ; one in open county-court, one other at the general quarter sessions of the peace in those parts where the party defendant at the time of the exigent awarded shall be dwelling, and one other one month at least before the quinto exactus, by virtue of the said writ of exigent, " at " or near the most usual door of the church or chapel of " that town or parish where the defendant shall be dwell- " ing," at the time of the exigent so awarded : and if the defendant shall be dwelling out of any parish, then in such place as aforesaid, of the parish in the same county, and next adjoining to the place of the dejenclani' s dwelling ; and upon a Sunday immediately after divine service and sermon, if any sermon there be ; and if no sermon there be, then forthwith after divine service ; and that all outlawries had and pronounced, and no writs of proclamation awarded and returned, according to the form of this statute, shall be utterly void. Whensoever any writ of exigent shall be awarded in any action in the King's Bench, or Common Pleas, against (:) Crom. 140, 150. (etua and Felicitas, &c. in the thirtieth year aforesaid, we caused to be exacted the said J. Almon, and he did not appear ; and " afterwards at the busting, &.c. Fourth exaction " on Monday next before the feast of St. Edward the king, " we caused to be exacted the said J. Almon, and he did " not appear ;" and afterwards at the busting, &c. on Monday next before the feast of the Saints Tibercius and Valerianus in the thirtieth year aforesaid, we caused to be exacted the said J. Almon, and he did not appear, &c. Therefore, &.c. The omission of the year of the reign, when the defendant was 2i fourth time exacted, was assigned for error, and the judgment reversed. For in a record of out- lawry it is necessary to state the year of the king's reign, in which every transaction happened, though not required in other records {a). Buller, J. said, there is neither sense nor reason in the objection ; but according to the authorities it must prevail ib). At my county- court o^ Middlesex, \io\die\\ at, kc. in and for the said county of Middlesex, on the day of in the vear of the reigcn of our sovereign lord If he appear and reader (c). year (m) 4 T. R. 5-11. (,t) 2 H. P. C. 204. (v) 4 T. R. 541. (x) Ib 541, 512. {a) Buller, J. vide Hardres, G, 7. Crosse's case. 5 T. R. 202. {b) 2 Roll. Abr. 808. pi. 8. is tliis case, 2 Hal. P. C. 203. (r) Dalt. 238. 302 King's debt to be preferred. 33 H. 8. c. 29. King's judg- ment affects all lands of his officers. c. 4. Immediate extent tested after distress. Extent on day of assignment. What may be seized. RETURN OF WRITS. EXTENT. William the fourtli, &c. the within-named C. D. was a first time demanded and appeared, and on the aforesaid day rendered himself into the prison of our said lord the king of Neivgafe, in the county aforesaid, under my custody, whose body I have ready before the lord the king, at the day and place within-mentioned, as within I am com- manded. The answer of, &c. To writs of Extent. The king's debt shall, in suing out execution, be pre- ferred to that of every other creditor who hath not ob- tained judgment before the king commenced his suit. The king's judgment affects all lands which the king's debtor hath at or after the time of contracting his debt, or which any of his officers, mentioned in 13 El. hath at or after the time of his entering in the office. So that if such officer of the crown aliens for a valuable con- sideration, the land shall be liable to the king's debt, even in the hands of a bond Jide purchaser ; though the debt due to the king was contracted by the vendor many years after the alienation (d). This preference can only be defeated by the property being altered by sale and deliveiy of the goods seized under the execution of the subject (e). And in this respect there is no distinction between an extent in chief, and an extent in aid (/). An immediate extent against the kino;'s debtor tested after a distress for rent taken, although justly due to the landlord, and an appraisement of the goods and chattels made, but not sold, shall prevail against the distress (g). So shall an extent tested on the day of the date of an assignment under a commission of bankrupt (k). By sale the execution is complete ; and process of the crown delivered aftenvards to the sheriff, though before the money is paid over, is no longer entitled to priority (i). The crown process is not affected by the 56 Geo. 3. so as to subject crops sold to any conditions in the lease. Debts either by specialty or simple contract may be found and seized into the king's hands to the third degree, but not beyond (/e). (d) 10 Rep. 55, 56. (e) R. I. Sloper, 6 Pri. 114. (/) lb. (g) Parker's Rep. 112. (h) lb. 126,127. (0 Swain v. JMorland, 1 Br, & B. 370. (h) Parker's Rep. 2-59, 260. RETURN OF WRITS. — EXTENT. 383 The property in bills is not transferred by indorsement alone without delivery (m). So where an arrangement had taken place as to bills with creditors, but no specific ap- propriation, and being- seized by the crown, it was held that the trustees could not sustain the issue, as against the crown, that the bills were their property (?*)• Immediate extents shall be preferred according to the Immecliate teste, and before extents in aid (o). And a second im- p^J"rred"to^ mediate extent, upon which evidence was offered to find extents in aid. the goods seized in aid, shall be preferred to ia. prior imme- diate extent, not oftering such evidence {p). If execution be upon a judgment against the king's If execution, debtor, and before a vend. exp. an extent comes at tlie ,^"),/ 'g^'J,7„, ^n king's suit, those goods cannot be taken on an extent (^ bankruptcy, the sheriff returned nulla bona, held tliat lie was right in so doing, the assignees being entitled to stand in the situation of a second execution creditor {n). So where after a return of the goods remaining in hand, for want of buyers, the plaintiff lay by until after a commission of bankrupt, and until after the goods had been given up to the assignees, and the sheriffs had gone out of office, the court set aside the writ of distringas, and left the plaintiff to his remedy by action, if the commission were fraudulent (o). But he can only seize sufficient to satisfy that execution, and the assignees may recover the surplus in trover (p). And now, executions bond fide levied more than two If executions months before commission of bankrupt issued will bind tij^n two the goods, notwithstanding prior act of bankruptcy, pro- months, vided the execution creditor had no notice at the time of c Geo. 4. c. lo. any such prior act of bankruptcy. ^" * If a plaintiff cannot find sufficient effects of the de- If money be fendant to satisfy his judgment, the court will order the jfthgr'^ac'tion.' sheriff to retain for the use of the plaintiff the money which he hath levied in another action, at the suit of the defendant (q). And where by delivery of an extent he is not in a condition to make his return by the day, the court will enlarge the time for so doing ; but such applications being in delay of justice, are not favoured (r). Where before seizure under the writ of execution a writ of error is allowed, and no legal seizure can be made, although the return of 7iulla bona was held bad, yet the plaintiff was entitled only to nominal damages (5). The proper course would have been for him to have returned that such writ had been allowed, and the court would have relieved him U). Where goods were claimed under a bill of sale, and Money ordered the sheriff returned 7iidla bona, the money was ordered \° ^^ brought to be brought into court by the sheriff, and the return to be made agreeable to the event of a trial of the («) Doker v. Ilasler, 2 Bing. 479. (r) R. v. Sh. of Devon, 1 Ch. R. (<)) 15 East, 78. G43. {p) Stead t'. Gascoigne, 8 Taunt. (s) Clcghorn v, Desangcs, 3 B. 527. Moore, 83. (r;) Armisteadi'.rhilpot,Doug.235. {t) Ibid. 4- c c G 3i>0 llETURN OF WRITS. OF Fl. FA. validity of the bill of" sale, after such validity tried in an action (?/). And if the sale to a third party be found by the jury to be fraudulent, the action by such party against the sheriff cannot be supported (w). If a dispute I'liG court will not stay goods taken by aji. fa. in the happen between h^nds of the sheriff till a dispute between the plaintiflf plaintut and a ... stranger. and a stranger concerning the property is decided, unless for the protection and at the request of the sheriff (x). Where there is another writ in the office, and the sheriff' is served with a rule to pay over money, he ought to apply to the court, or give notice of the fact to the de- fendant, or he may subject himself to an action for a false return to the second process (y). If he pay over after notice, he must stand or fall with the right of the party, and it may be shown that tlie judgment and exe- cution are fraudulent (2:). The court will protect the sheriff in proceeding to sale after notice of bankruptcy when both parties refuse to indemnify him(«). His course is to apply for an enlarge- ment of the time to return from term to term, and which is allowed as matter of course (b). So where goods taken are claimed by a third party (c). Where after sale and payment to the execution creditor, the sheriff was sued in trover by the assignees, and gave notice thereof to the creditor, and offered to defend if he would furnish the means, and on a refusal had suffered judgment by default; in an action brought by him to recover back the money paid, held that he was not (u) Rex V. Brcen, 1 Keb. 905. (a) Kingv.Brydges,rTaunt.294. (w) Earl of Bristol y. Wilsmore, Burr u. Freethy, 1 Bing. 71. 1 B. & Cr. .514. 7 Taunt. 59. 3 (/^) Venablesr. Wilks, 4 B.Moore, €amp. 3.52. 339. S. P. Ledbury v. Smith, 1 Ch. (.T) Shaw D.Tunbridge,2Bl.R. 1004. 294. Probinia r. Roberts, Id. .577. (v) Saunders i'. Bridges, 3 ]i. ik A. Beavan v. Dawson, 6 Bing. 500. O.J. (c) Elchells V. Lovatt, 8 Pri. 54. (:) Warmoll i . Young, 5 B. & Cr. Cilossop v. Pole, 3 M. & S. 175. ■GOO. RETURN OF WRITS. — OF FI. FA. bound to defend ; but that to entitle him to recover the money he was bound to show the vahdity of the bank- ruptcy (d). But where the goods of two defendants had been seized, and they disputed as to the amount of their share, the court refused to allow him to pay the surplus into court until they had indemnified him (e). He ought, however, to stand indifferent between parties claiming, and retain the money in his hands until they can apply to the court (f). The within -named C. D. hath not any goods or chattels in my baiHwick, whereof I can cause to be levied the debt and damages within-mentioned, or any part thereof. The answer of, Sec. The within-named C. D. hath not any goods or chattels in my bailiwick whereof I can cause to be levied the da- mages within-mentioned, or any part thereof. The ansv.\r of, &c. The within-named A. B. and C. D. have not, nor hath either of them, any goods or chattels in my baiHwick whereof I can cause to be levied the debt and damages with- in-mentioned, or any part thereof. The answer of, &c. If the late sheriff takes the defendant upon process, or levies upon goods in his time, und the present sheriH" is called on to return the writ, such return is to be made in the name of the late sheriff; then the present sheriff indorses it under thus : 397 Nulla bona to a, fieri facias ia debt. To Kfi.fa. in case. Return of nulla bona against two defendants. Return of new sheriff, where the late sheriff returns the levy, and is out of office. in case to part, and nulla bona as to the residue. This writ as above indorsed was delivered by the above- named late sheriff to me the under-named now sheriff, at the time of his going out of office. 1 he answer of, &c. By virtue of this writ to me directed, I have caused to Levy upon a be levied and made of the goods and chattels of the within- fi-.t"- named C. D. to the value of 40 /. which money I have ready : and the within-named C. D hath not any other or more goods or chattels in my bailiwick whereby I can cause to be levied the residue of the debt and damages within mentioned, or any part thereof, as within I am com- manded. By virtue of this writ to me directed, I have levied and if tl.e Ian llonl made of the goods and chattels of the within-named C. D. is paid, return to the value of 40 /. ; and I further certify, that I have paid to ^. i?. the landlord of the premises, the sum of 20/. for half a-year's rent due tc him at last, and the remaining sum of 10 I. I have ready, as within I am tlius. '(d) Austin v. Ward, 1 Ry. & M. IIG. (e) Hartley «. Stead, 8 Moore, 466. (/) 5 B. & Cr. 060. 398 Fieri feci, and remain for want of buyers, ficc. Kidln bona, and that defendant is a beneficed clerk. If a rector}'. Return to a Ji.J'u. levy as to part, as to others, as pawns in the hands of defendant. Mii'idai ballivo. RETURN OF WRITS. OF TI. FA. commanded, and the said C. D. hath not any other or more goods or chattels in my bailiwick whereof I can cause to be levied the debt and damages within-mentioned, or any part thereof. By virtue of this writ to me directed, 1 have levied and made of the goods and chattels of the within named C. D. to the value of 40/. as within I am commanded, which said goods and chattels remain in my hands unsold for want of buyers, therefore I cannot have the money before His Majesty at the day and place within-mentioned, as within I am commanded. After such a return, he cannot, upon a vend. exp. being issued, return thereto that he he had sold, and retained to satisfy a prior execution {(j). The within -named C. D. hath not any goods or chattels in my bailiwick whereof I can cause to be levied the debt and damages within-mentioned, or any part thereof, as within I am commanded : and I further certify, that the said C. D. is a beneficed clerk (having no lay fee in my bailiwick), to wit, vicar of the parish and parish-church of L. in the county of B. and diocese of L. If it is a rectory, say, rector of the parish and parish- church of ^. in the county of B. and diocese of Z. I have levied and made of the goods and chattels of A. B. in the w^it to this schedule annexed named, to the value of 500 1. ; and I certify that I have paid the sum of 15/. being the expenses in levying the execution, and also to Mr. C. D. the landlord of the premises, the sum of 59/. for one year's rent due to him at last, making together the sum of 74/., and the sum of 426/. being the residue of the said sum of 500 1. I have ready. I also certify, that the within-named C. D. is a pawn- broker, and that I seized divers goods and chattels which were deposited in his hands as pawns of several persons, to the value of 540 1, which remain in my hands ; and I further certify, that the within defendant hath not any other or more goods or chattels in my bailiwick whereof I can cause to be levied the residue of the debt and damages within-mentioned, or any part thereof, as within I am commanded (A). I have sent to the bailiff of the liberty of S. in my county to levy the within debt and damages, which said bailiff hath the full return of all writs and process within the same liberty, and the execution thereof; so that no execution of this M-rit can be made by me, within the said liberty ; (g) Howe f. Tapp, 9 Pri. 31 7. (/i) Settled by IMi-. Wallace. RETURN OF WRITS. — OF HAD. CORP. 399 which said bailiff hath not yet given me any answer thereto. The answer of, &c. Or if he hath answered, Which said bailiff hath answered me thus [liere set forth his retiu'ii and name.] The within named A. B. hath not any goods or chattels which were of the within-nanied C. D. at the time of his death in his hands to be administered, whereby I can cause to be levied the debt and damages within-mentioned, or any part thereof. I have levied and made of the goods and chattels of the within-named C. D. deceased in the hands of A. B. execu- tor, within-mentioned, to the value of 50 /. which money I have ready. The answer of, &c. I have levied and made of the goods and chattels which were of the within-nanied C. D. at the time of his death, to the value of 50 L which money I have ready. The within-named A. B. executor, &:c. hath not any goods or chattels in my bailiwick whereof I can cause to be levied the sum of G I. the costs and charges within-mentioned, or any part thereof. The answer of, &c. The within-named /?. IF. hath not any goods or chattels which were of the within-named M. H. at the time of his death in my bailiwick in his hands to be administered, whereby I can cause to be levied the debt and damages within-mentioned, or any part thereof. And I further cer- tify, that divers goods and chattels, which were of the within-named M. H. at the time of his death, came to the hands of the said B, IF. after the death of the said M. H. to be administered, to the value of the debt and damages within-mentioned ; which said goods and chattels the said B. W. executor as aforesaid hath eloigned and wasted, and converted the same to his own use [i). It is now usual to bring an action suggesting a devas- tavit, which is the better way. To Writs of Haheas Corpus. There are several writs of habeas corpus to which the Habeas corpus. subject is entitled by common right when he is deprived of his liberty. But the great and efficacious writ, in all manner of illegal 'confinement, is that of haheas corpus ad suhjiciendum, divected to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faci- endum, subjiciendum and recipiendum, to do, submit to (i) Thes. Biev, 117. Return to a fi.fa. against executor of nulla bona testatoris. i Fierifeci. To a/./rt. against an exe- cutor where levy is to be made of goods of testator. Xulla bona to fi.fa. against an executor, and a.devaitavit. 400 Hub. eorp, cum, causa. Formerly this writ could not be returnable immediately, unless, &c. but now may. Habens corpus ad testifican- dum. Hah. cm-p. ad tatisfaciendum. RETURN OF WRITS. — OF HAE. CORP. and receive whatsoever the judge or court awarding such writ shall consider in that behalf (j). The writ of habeas corpus ad faciendum et recipiendum, which is commonly called a habeas corpus cum causa, " because it commands the sheriff, or person in whose " custody he is, to bring him before the chief justice " therein named, or in his absence, any other justice of " the same court, together with the day and cause of his " caption and detainer, to do and receive whatsoever shall " be considered of him in that behalf;" who, upon read- ing the causes returned, will of course commit him to the King's Bench prison ; but if he be already in custody by virtue of a writ issued out of this court, he may have this writ in the first instance to go to that prison. This vsTit, in the fifth year of the reign of Ch. 2. could not be returnable immediately, or in the vacation, unless the party was in prison in London or Middlesex, or in order to deliver him over in discharge of his bail ; but since the statute of Wil. 3. which gave liberty to a plain- tiff (instead of bringing his prisoner to this court at the great expense of the writ of habeas corpus ad responden- dum) to charge him with a declaration in prison, it has been determmed that in all civil suits this writ may be returnable immediately before a judge at his chambers, and may be now sued out without any previous motion made (k). And that if the sheriff, &.c. do not obey it in convenient time, he will not only be subject to the pe- nalties in the 31 Car. 2. but to an attachment for his contempt, that sort of punislmient being the spirit of the act of parliament (Z). The habeas corpus ad testificandum is issued where a witness is confined in prison, directed to the marshal, sheriff, &c. in order to bring him before the court where the cause is to be tried, to give evidence on the part of the person who sues it out ; the sheriff returns this writ with the causes of detainer, and the keeper brings the body mto court. The habeas corpus ad satisfaciendum is directed to the same person to bring the body into court, with the causes of his detainer, on a day certain named therein, to satisfy or make satisfaction to the plaintiff the debt and damages stated therein, which being obeyed, the court commit him to the custody of the warden or marshal, as the writ directs. 0) 8 St. Tri. 142, (k) 3 Burr. 187G. Q) 2 Burr. 854. RETURN OF WRITS. OF llAB. CORP. By 31 Car. 2. it is enacted, That whensoever any person shall bring any habeas cor- pus, directed unto any sheriff or gaoler Ike, or other person, for any person in his custody, and the writ shall be served on the said officer, or left at the gaol or prison with any of the under officers, under keepers or deputies, he or they shall, within tlirec daijs after such sen ice thereof, (unless the commitment were for treason or felony, plainly and spe- cially expressed in the warrant of commitment), upon pay- ment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and indorsed on the same writ, not exceeding 12 f/. per mile, and on security given by his own bond to pay the charges of carrying back the prisoner if he should be re- manded, and that he will not make any escape by the way, make return of such writ, and bring the body of the party so detained, &c. before the lord chancellor, &c. or such other persons before whom the said writ is made re- turnable, and shall certify the true causes of his detainer, unless the commitment be in a place beyond twenty miles distance, &c. and if beyond the distance of twenty, and not above 100 miles, then within ten days ; and if beyond the distance of 100 miles, then within 20 days. That all such writs shall be marked in this manner, per statutum tricesimo prima Caroli sectindi regis, and signed by the person that awards the same ; and if any pei'son shall stand committed for any crime, (unless for treason or felony, plainly expressed in the warrant of commitment), in the vacation time, it shall be lawful for such person so committed, (other than persons convict, or in execution by legal process), or any one on his behalf, to complain to the lord chancellor, &c. and the said lord chancellor, ike. jus- tice or baron, on view of the copy of the warrant of com- mitment, or on oath that it was denied, are required, on request in writing by such person or any on his behalf, attested and subscribed by two witnesses, who were pre- sent at the delivery of the same, to grant an habeas corpus under the seal of the court, whereof he shall be one of the judges, to be directed to the officer in whose custody the party shall be, returnable immediate before the said lord chancellor, &c. justice or baron ; and on service thereof as aforesaid, the officer, &c. in whose custody the party is, shall, within the times limited, bring him before the said lord chancellor, &c. before whom the said writ is return- able, and in case of his absence before any other of them, with the return of such writ, and the true causes of the commitment and detainer ; and thereupon, within two days D D 401 c. 2. s. 2. Writs of /idfteas covjuis, wilhin three days after service to be returnefl, and the body brouuht. Upon tender of the charges, to be ascertained by the judg'js. Beyond 20 miles, ten days, beyond 100, twenty days. Such writ how to be marked. And if any person, &c. shall be com- mitted in vaca- tion time, to complain, &c. 6cc. Who is to grant an habeas, returnable im- mediately. And the officer shall certify the true causes of the commit- ment. 402 s. 3. After assizes proclaimed, no prisoner to be removed. s. 18. Officers how to be proceeded against for not obeying such writs. s. 5. No excuse for sheriff or gaoler, that he is not paid. RETURN OF WRITS. OF IIAC. CORP. after the party shall be brought before them, the said lord chancellor, &c. before whom the prisoner shall be brought, shall discharge the said prisoner from his imprisonment, taking his recognizance, with one or more sureties, in any sum according to their discretion, having regard to the quality of the prisoner and nature of the offence, for his appearance in the King's Bench the term following, or in such other court where the offence is properly cognizable, as the case shall require; and shall certify the said writ, with the return thereof, and the recognizance, into such court, unless it be made appear to the said lord chancellor, &c. that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters, or by some wairant signed and sealed with the hand and seal of any of the said justices or barons, or some justice or justices of the peace, for such matters or offences for the which by law the prisoner is not bailable. " That after the assizes proclaimed for that county *' where the prisoner is detained, no person shall be re- " moved from the common gaol upon any habeas corpus " granted in pursuance of this act, but upon such habeas *' corpus he shall be brought before the judge of assize in " open court, who thereupon shall do what to justice shall " appertain." " That if any officer, &c. shall neglect or refuse to make " return, or bring the body of the prisoner according to " the command of the said writ, within the respective " times ; or upon demand made by the prisoner or person " in his behalf shall refuse to deliver, or within the space " of six hours after demand shall not deliver to the person " so demanding, a true copy of the warrant or warrants of " commitment and detainer of such prisoner, which he and " they are hereby required to deliver accordiugly, all and *' every the head gaolers and keepers of such prisons, and " such other person in whose custody the prisoner shall " be detained, shall for the first offence forfeit to the pri- " soner or party grieved the sum of loo^., and for the se- " cond offence the sum of 200/., and shall and is hereby " made incapable to hold or execute his said office." As the gaoler, &c. is obliged to bring up the prisoner at the day prefixed by the writ, it is no excuse for not obeying of a writ of hab. corp. ad satisf. that the prisoner did not tender his fees due to the gaoler ; nor yet is the want of such tender an excuse for not obeying a writ of hah. Corp. ad fac. et recip., but if the gaoler bring up the RETURN OF WRITS. — OF HAB. CORP. 403 prisoner by virtue ofsuch/(!aZ»ea6; corpus, the court will not turn him over till the gaoler be paid all his fees {a). As upon the return of the writ the court is to judge The sheriff is whether the cause of the commitment and detainer be ^° ™^''^ ^,„^„ . . 1 /T> i • certain return^ accordmg to law or agamst it ; so the oiiicer or party ni whose custody the prisoner is must, according to the command of the writ, certify on the return thereof the day, and " also the causes depending against him ; and " in extra-judicial commitments, the warrant of commit- " ment ought to be returned, as also every writ of exe- " cution in hcec verba, and with a paratum liaheo" that the judge may either discharge, bail or remand the pri- soner (6). It is said in general, that upon the return of the habeas what ought to corpus the cause of the imprisonment ought to appear as appear, specifically and certainly to the judges before whom it is returned, as it did to the court or person authorized to commit (c). For if the commitment be against law, as being made if commitment by one who had no jurisdiction of the cause, or for a mat- be against law, ter for which by law no man ought to be punished, the to*dischav 1 1 1 • 1 • 1 1 -^ 1 m demand, third part ot a house or land is only m demand, yet the whole shall be put in view {v). The sheriff may return, that he was ready to make the May return view, and that neither the tenant nor any for him came '^^^^ ^° ™^^ J. ii • / \ view. to the view {w). By virtue of this WTit to me directed, I did on the Return tohab. day of in the year within-written, give full and f"^- P°^^- °^. peaceable possession unto the within-named Jo/in Doe, of j""^.^ possession the messuages, lands and premises, with the appurtenances within-mentioned, as within I am commanded. The an- swer of, &c. \^ Add this] and the within-named C. D. hath not any If a/. /a. is goods or chattels in my bailiwick whereof I can cause to annexed, and be levied the damages and costs within -mentioned, or any "° ^°° ^* part thereof. I have levied and made of the goods and chattels of the If a levy of within-named C. D. to the value of 20 /., being the damages goods, and costs within-mentioned, which money I have ready. By virtue of this writ to me directed, I have been always Return no one ready and willing to deliver the possession of the premises came to show or within-mentioned, to the within-named Jb/m Doe, with the ifceive posses- . appurtenances, as I am commanded ; but that no man premises. came to me on the part of the said Jo/ui Doe to show the same premises to me, or any part thereof, or to receive possession thereof, or any part thereof, from me. The an- swer of, &c. To Writ of Latitat. The return to this writ is either cepi corpus, or non est Latitat. inventus {x), mandavi hallivo, languidus, and that de- fendant is a member of parliament, or bankrupt, or writ issued wdthin the forty-two days allowed for his surren- der, or rescous. To Writ of Levari Facias. For the execution of this writ, see p. 141. ^-fi""- f<^<:- On this writ the sheriff returned, that he levied 10/. of What is a good the sum, &c. the which he hath delivered to the party : return. this seems to be a good return ; and upon this return the party may sue a sicut alias levari facias, directed to the sheriff to levy the residue (y). (w) 11 H. 4. Bro. View. 39. (t) Lib. Intr. 109. c. 1G6. d. (r) lb. 46. 71. (v) Dalt. 2G0, (u) Fitz. View, 12(5 410 To be levied on the profits of the land. Nulla bmo' Cepi. The oath to be administered to the foreman. Form of the oath to be administered to the other jurors. Eetura. Liberate. RETURN OF WRITS. — LUNACY. — LIBERATE. This writ is only to be levied upon the profits of the land, and upon the goods of him that hath forfeited a re- cognizance, &c. (z). But the sheriff cannot seize the land, and deliver that to the party (a). The within-named A. B. hath not any goods, chattels or rents in my bailiwick, where or by which I can cause to be levied the debt within-mentioned, or any part thereof, as within I am commanded. I have taken into the hands of the lord the king, a cer- tain inn, with three shops, [in such a place], of the within- named J, S. which are of the annual value of loL, besides reprizes ; and that the aforesaid inn, with the shops afore- said, remain in my custody, until I have another com- mand {b). To Commission of Lunacy. The commission being obtained, the sheriff appoints a place for the execution thereof, which ought to be near the place of the supposed lunatic's abode ; a precept is then sent to the sheriff' to summon a jury of twenty-four men, who immediately issues his summons to his bailiff for that purpose : the summons contams in substance the precept. The sheriff attends this commission, as well as his officer who summoned the jury, and the following oath is administered by the sheriff to the jury. You shall well and truly inquire of all such matters and things as shall be given you in charge, by virtue of His Majesty's commission now to you read, and a true verdict give, according to the evidence that shall be produced. So help you God. The same oath that your foreman hath taken on his part, you and each of you shall well and truly observe, and keep on your parts. So help you God. The sheriff returns the precept of the commissioners, adding a panel of the jurors thereto. The execution of this precept appears in a certain panel hereto annexed. The answer of, ^c. The commissioners return the commission. Of Liberate. This writ is used for the delivery of goods, &c. on an extent ; and by the extent, the conusee of a recognizance (:) Reg. Orig. 298. 300. (a) Plow, 441. (h) Ualt. 2G0. Return of liberate, after an extent on RETURN OF WRITS. — NE EX.. REG. — PONE, &C. 411. hath not any absolute interest in the goods until the liberate (c). This writ is to be sued on a statute-staple, on a recognizance, before there can be a delivery in execution (d). By virtue of this writ to me directed, on the day of in the year within-written, I have delivered to ^^^ ^^ the within-named L. S. the manor, lands and tenements i^ond within-specified, with the appurtenances, to hold to him and his assigns, as his free tenement, until the debt within-mentioned, with the damages and costs, are fully paid and satisfied, as I am within commanded ; and the within-named J. S. is not found in my bailiwick. The answer of, &c. {e). Upon a liberate, if the sheriff hath duly executed the writ and paid the money to the plaintiff, he need not return the writ (/). To Writ of Ne Exeat Regno. The writ ne exeat is in the nature of an arrest, and cannot be maintamed where the party has been previously arrested (^). I have caused the within-named N. B. personally to Cepi corpus to a come before me, and he found bail in the penalty of 600 Z. ne exeat regno. according to the command of the within writ. Tlie answer of, &c. Of Pone. Return to a writ of pone, vide p. 220, and return of Pone. summoned. Of Exigent. Return to a writ of proclamation on an exigent, see Proclamation. Exigent, p. 370. JProclamation. I have caused proclamation to be made, as within I am commanded ; and I further certify, that the within-named C. D. is not found in my bailiwick. The answer of, &c. {h). I have caused proclamation to be made, as within I am commanded, and I have by virtue of this writ taken the body of the within-named C. D. and him in the prison of the lord the king of N. under my custody have caused (c) 2 LiU. 169. (d) 3 Salk. 159. (e) Lib. Intr. 598, 233. (/) Dalt. 109. 2G1. (ff) Raynes v. Wise, 2 Mer. Ch. Dalt. 2C1. R. 172. (7;) Dalt. 298. To a proclama- tion in Chan- cery. Cepi upon a proclamation out of Chan- cery, and de- tained on other writs. 412 Quare hiipedit, Tarde, Kihil. In a quid juris clamat. Re. fa. lo. Rescue. Return to a writ of Restitu- tion. Return to a writ of riglit patent. RETURN OF WRITS. QU. IMP.-RE. FA. LO.-RESCL' E, &C. to be safely kept ; but because the aforesaid C. D. is also detained in my custody by virtue of divers other causes, at the suit of divers other persons, therefore I cannot have his body at the day and place within contained, as vfithin I am commanded, without the writ of the lord the king, to have the body of the said C. D. together with the day and cause of his being taken and detained, to me in this behalf directed. Of Quare Impedit. The defendant must be summoned by the slieriff, and it may be made in the church, or to the person. The sheriff may return tardt (i). Also he may return nihil upon the summons and upon the attachment and distringas {h). Upon a writ of summons, in a quid juris clamat, the sheriff is to return the party summoned in this or the hke manner ; (E.F. Sunimoners are, \ J. S. [j. D. The answer of /. K. esq. sheriff. Recordari Facias Loquelam. Return of a writ of recordari facias loquelam, vide p. 197. Rescue. Rescue, returned by several, p. 202 ; and by the de- fendant himself, p. 204. Restitution. By virtue of this writ to me directed, immediately after the receipt of this writ, I restored and put into full and peaceable possession, the messuages and land with the appurtenances within mentioned, unto the within-named A. J?, as within I am commanded (l). Writ of Right. f John Doe, 'j and [ Richard Roe. The summoners of the within-named C. G. are /. A. D. S.; and at the most usual door of the parish church of, Officin. Brev. Pledges to prosecute. (i) New llet. Brev. 109 {k) lb. (/) Greenw. 229. 224. P.ETURX OF WRITS. — OF SCI. FA. 413 &c. within mentioned, on Sunday, the day of in the year witliin written, inmiodiately after divine service and sermon ended, I did cause public proclamation to be made according to the form of the statute in such case made and provided. The answer of, &c. Upon this writ issues a grand cape for non-appearance ; for the return of which see title Dower, p. 354. Upon the grand cape, the sheriff must summon tlie tenant to answer to his default, and further to answer to the demand (/«), and the names of the summoners. He mav return that he hath nothing whereby he can be sunnnoned. And that there is no such town {n). An action cannot be maintained as for a false return to a writ of right, founded upon a mistaken indorsement made thereon by the judge's officer; the duty of the sheriflfis only to summon four knights, and notice to the knights to appear may be well given after the first day of the assizes (o). By virtue of this writ to me directed, I have caused J. E. The return of 7. H. P. D. and G. M. four lawful knights of my county, the alias writ to be summoned hy I. A. and G. IF. my bailiffs, to be be- J^^^'^J^^^f "^te °^ fore His IMajesty's justices at the day and place mentioned, °^^ "'^ to do as by this writ they are required, and as I am within commanded : the said summoners are and each of them is mainprized, by John Doe and Richard Roe. The answer of, dc. To Writ of Scire Facias. The sheriff upon this writ is only to warn the party to Sch-e facias. appear (before the justices, &c.) accordmg to the writ, and then to return the same : but such warning is to be by summons, which is directed to tbe bailiff, to give know- ledge to the defendant that he appear at such a man's suit, in such a court, at a certain day, there to do that which the writ requires. He may return nihil, tardt, or that the party is dead {p); What sheriff or summoned. But he ought to return the real names of "^^y '■^^"^°- the summoners. The within-named A. B. hath not any thing in my Nihil to set. fa. bailiwick where or by which I can give him notice as within I am commanded, nor is the said A. B. found in the same . (m) Dalt. 219. (") Windle v. Ricardo, 1 T.& Br. 17. (^„) lb. (p) Lib. Intr. 458. Br. 125. 414 Nihil to two defendants. Summonirefeci. Summons to one and nihil to the other. That defendant died. Return of notice to the tenant. If no heirs or tenants, then return thus. Nulla bona against an executor, &c. RETURN OF WRITS. OF SCI. FA. But where the sheriff having improperly refused to return nihil until a certain fee paid, the court, in order to discourage the practice of ordering returns of nihil, discharged a rule to compel him to make the return, without costs {(j). The within-named A. B. and C D. have not, or hath either of them, any thing in my bailiwick where or by which I can give them or either of them notice, as within I am commanded, nor are they, or is either of them, found in the same. The answer of, &c. By virtue of this writ to me directed, by W. D. and /. K. good and lawful men of my bailiwick, I have given notice to the within named C. D. to be and appear before the lord the king on the day and at the place within men- tioned, to show, &c. as within I am commanded. The answer of, &c. B3r virtue, &c. I have given notice to the within-named A. B. to be and appear before the lord the king on the day and at the place, to show, &c. as within I am com- manded. The within-named C. D. hath not any thing in my bailiwick where or by Avhich I can give him notice, as within I am commanded, nor is he found in the same. The answer of, &c. Before this writ came to me, the within-named A. B. died ; therefore I cannot make known to him, as within I am commanded. By virtue of this writ to me directed, I have given notice by J. D. and J. H. good and lawful men of my bailiwick, to J. K. tenant of fifteen messuages and hundred acres of land, with the appurtenances, situate, lying and being in the parish of A. in my bailiwick, which were the lands and tenements of J. K. at the time of the rendition of the judg- ment within mentioned, to show in manner as within men- tioned, and as within I am commanded. If the writ be directed to give notice to the heirs and tenants of the lands, then add, if they are not in the baili- wick : There are not any heirs or tenants of the lands or tene- ments whereof the said J. K. was seised at the time of the rendition of the judgment within mentioned in my baili- wick, or ever after, whereof I can give notice to them, or either of them, as within I am commanded. The within named C. D. executor, within mentioned, hath not any thing in my bailiwick where or by which, &c. (7) 5 Bing. 284, RETUTIN OF WRITS. IIAR. FAC. SEIS.-SUPETISEDEAS. 415 The within-named A. B. administrator, within mentioned, Against admi- hath not any thing in my baihwick where or by which, &c. n'strator. To this writ the sheriff may return a mandavi ballivo (>). j^"^"^||"^' The within named A. B. and C. D. bail of the within- jo a sd.fa. named G. //. have not, nor hath either of them, any thing against bail in my baihwick, &c. "'^''• Hah.fac. Seisin. By virtue of this writ to me directed, on the 6th day of Ilab.fac. sehin. December, in the year within written, I caused full seisin of the tenements within specified, with the appurtenances, to To a writ of be delivered to the within-named E. as I am within com- seiiin. manded. 1 John Doe, I^eturn to a Summonersare,^ and ToL """ J Richard Roe. To a precept to summon the assize, vide Circuit. To a precept to summon the sessions, vide Sessions. Supersedeas. I have altogether ceased from the execution of this writ Supersedeas. against the within-named C. D., having received H''^ 'la- jcsty's writ of siqierscdeas for that purpose. The answer of, &c. Second Deliverance. For the return to this writ, vide p. 198. Second deli- T^ ,. . . -ri verance. Venditioni iLxponas. I have sold the goods and chattels within mentioned for i^eturn to a the within sum of 50/. being the dearest price I could get v/nioi vend. for the same, which monies I have ready, as within I am "7^- commanded. The answer of, &c. I have sold the goods and chattels within mentioned for jf in the Ex- the sum of 500 /. being the dearest price I could get for chequer. the same, which monies I have before the barons of the kino-'s Exchequer at Westminster, at the day within mentioned, ready to be paid to His Majesty's use. The answer of, &c. This writ issues to the sheriff on his fomier return of havino- goods to the value of, &c. and that they remain in his hands for want of buyers. Where he returned that he had sold only part, and had the rest in his hands for want of buyers, an attach- ment was refused, unless it were made to appear that (r) Rast. Entr. 237. 41G Return sum- moned on venire J'acius out of Exchequer. Kihil to the same. Venire facias jirratmum. Return of uithernani nulla bona. Cepi to the same writ. If a replevy be of pots, &c. sheriff to take others. RETURN OF WRITS, — VEN. FACIAS.-WITHERN AM. he was trifling with the court, as the party might sue out a second vend. exp. {s). Venire Facias. } James Armstrong, and Richard Ross. The answer of J. L.'\ and UherifFs. R. S. esqrs. J The within-named C. D. hath not any thing in ray baili- wick where or by which I can give notice to him, as within I am commanded, nor is he found in the same. The answer of, &c. The execution of this writ appears in the panel hereto annexed. Here add a panel of the jurors thereto if in C. P. or Exch., if in K. B. no need, as you add one to the dis- tringas. The same return does to a distringas or hah. corpo. jurat. No issues are returned upon the venire, only pledges. Each of the jurors are separately attached by pledges, John Doe and Ridiard Roe. Withernam. The within-named A. B. hath not any cattle, goods or chattels in my bailiwick which I can take in witherman, as within 1 am commanded, nor hath he any other goods or chattels in my bailiwick by which he can be attached, nor is he found in the same. I have taken in withernam ten cows of the price of 40 I. of the within named C. D. and delivered the same to the within-named J. B. safely and securely to be kept until the other beasts within specified of him the said C. D. before taken, and to places to me unknown sent, as within I am commanded, and the within-named C. D. I have attached by his goods and chattels (t). The sheriff to this writ may return tarde iu). If a replevy be of pots, pans, or the like, yet sheriff on withernam may take oxen, horses, or other cattle or goods (.r). (s) An. 2 Ch. 390. (») Fitz. Journ. .34. Dalt. 295. (0 Fitz. Gage Deliv. 1. Dalt. 295. (r) N. Br. 45. Dalt. 296. Uilk, 312. WARRANTS. 41' On a 7iihil returned, it is made a guare whether the sheriff may attach the defendant without some special clause in the writ(?/). The sheriff may deliver the beasts or goods taken in withernam to the plaintiff to keep, or may keep them him- self, or may drive or send them to any place within his county to be safely kept {z). The sheriff may return, that he did not deliver the cattle to the plaintiff, for that he was not in the county {a). He may return that the cattle taken died in the pound May return before delivery of them to the plaintiff (6). By Bracton and Britton, the sheriff upon a withernam may take cattle or other goods to double the value (c). Tho sheriff may delirei beasts, iic. That he did not deliver. cattle died. Warrants. nPHE under-sheriff makes out warrants to the bailiffs, Sheriff, &c. to ■*■ for the execution of the several writs directed to the |^j'[J acconUncr sheriff, in the name of the high sheriff, and these war- to the substance rants must be according to the nature of the writ, which of the writ. for the substance will direct them therein ; if there be a recital in the writ, it need not be inserted in the warrant ; but the warrant is to contain the mandatory part of the writ only (d). If any sheriff, &c. deliver out a warrant before he has the writ in his custody, he forfeits 10/. G Geo. i. Every warrant to have the same day and year plainly What is neces- set down thereon as shall be set down on the writ, under ,''^^'^^^'"/*'*^ forfeitui'e of 10 I. ; and the attorney's name. Warrants are now printed in blank ready to fill up, and may be had at the stationers. The officer's name in the margin of the warrant is not sufficient (e). The sheriff's seal of office appearing on the warrant is sufficient evidence of the sheriff's authority to do the act required, as it will be presumed to have been properly fixed until the contrary is shown, and is sufficient to charge the sheriff in trover (/"), warrant. G Geo. 1. (v) Greenw. 231. (z) New Ret. Brev. 495. (a) Dalt. 295. Sedqu.? (/)) New Ret. Brev. 49G. (<■) Dalt. 295. (d) Dalt. 117. (e) 3 Lamp. N. P. 228. (/) Gibbius V. Pliillips, 7 B. & Cr. 535. n. E E 4IH WAnUANTS, On an attach- ment cf privi- lege in K. B. The like in the Common Pleas. On an attach- ment in the court cf Chan- cery for not answering^. The like in the P^xchequer. The like on an attachment of contempt The Form of Warrants. ^ E. F. esq. sheriff of the county aforesaid, to to wit. (the keeper of the gaol of the said county, and also to John Denn and /?/c^or('/i^ew«, my bailiffs, greeting : By virtue of His Majesty's writ to me directed, I command you and every of you, jointly and severally, that you or one of you attach J . K. if he shall be found in my bailiwick, and him safely keep, so that I may have his body before the king at Westminster, on to answer J. D. gent, one, &c. in a plea of trespass, and also to a bill of the said J. D. to be exhibited against the said J. K. for \ool. on promises, according, &c. Hereof fail not. Given under my hand and seal of my office, dated the day of Writ dated the day of By the same sheriff. Take bail for 50/."! Beware the defendant is not privileged Denn in person. / or protected. To be executed by no bailiffs but those who have given the sheriff security. \_This to be added at the end of every ivarrant.] "1 E. F. esq. sheriff of the county aforesaid, to to wit. ]&c. [as before] attach Joh7i Denn, so that I may have his body before the king's justices at IVestmiyister, on to answer Richard Fenn, gentleman, one of the attornies of the court of Common Bench, according to the liberties and privileges of the same court for such attornies and other ministers of the same bench, from time out of mind used and approved of in the same, in a plea of debt. Hereof fail not. Given, &c. Take bail for 50 /."I Femi in person, j To, &c. so that I may have him before the king in his court of Chancery, on wheresoever, &c. to an- swer His Majesty as well touching a contempt v/hich he, as it is alleged, hath committed against His Majesty, and all such other matters and things as shall be then and there laid to his charge, and further to perform and abide such order as His Majesty's said court shall make in this behalf. Hereof fail not. Given, &c. By the same sheriff. By the Court for not answering at the suit of C. D. Take bail for 40 /. J. K. solicitor. Before the king's barons of his Exchequer, at Westmiri' ster, on, &:c. to answer, &c. To, &c. attach Richard Fenn, gent, one, &:c. so that I have him before the king's justices at Westminster, on next after to answer His Majesty of and By the same sheriff. WARRANTS. 411) concerning tliose things which shall then on the king's against an at - behalf be objected against him. Hereof fail not. Given, &c. to''"«y '» C. P. By the same sheriff. Insert the words at the foot of the attachment beginning with the name of the cause, as Denn against Fenn, gent, one, &c. 1 E. F. sheriff of the county aforesaid, to the Warrant on a to wit. J keeper of the gaol of the said county, and also '""*"*• to J. B. and C. D. my bailiffs, greeting : By virtue of His Majesty's writ to me directed, I command you and every of you, jointly and severally, that you or one of you take J. K. if he shall be found in my bailiwick, and him safely keep, so that I may have his body before the lord the king at Westminster, on to answer to JoJm Denn in a plea of trespass, and also to a bill of the said John Denn against the said John A7«o- for 40 /. upon promises, accord- ing, &c. Hereof fail not. Given under the seal of my office, the day of Bail for lol. A. K. attorney. ^^ '^'^ ^^™^ ^^^"ff- , If on a non omittas capias, say, " Command you that you omit not by reason of any Warrant on liberty in my bailiwick, but that you enter the same and """ """'<'"«• take, or one of you take, J. K." &c. 1 [As before'] to answer John Denn in a plea of 9."/,,''','^ °^ to wit. /trespass, and also to a bill of the said John to ' ^^^^' be exhibited against the said Richard for 40 /. on promises, according, &c. "1 [As before] by virtue of His Majesty's writ to Warrant on a to wit. J me directed, I command you, and every of you, speciiil capias. jointly and severally, that you take, or one of you take, John King, if he be found in my bailiwick, and him safely keep, so that I may have his body before the lord the king, on wheresoever His Majesty shall then be in England, to answer John Denn in a plea of trespass on the case, to the damage of the said John Deyin of 40 I. Hereof fail not. Given, &c. Bail for 20 1. By the same sheriff. [As before] to answer John Denn in a plea of trespass, Ditto on a and also that the said John King may answer the said John ciipim in the Denn, according to the custom of the king's court of Com- *'• ' • mon Bench, in a certain plea of trespass on the case upon promises, to the damage of the said John Den7i of 40 1. Hereof fail not. Given, Sic. Bail for 20 1. By the same sheriff. F. K t> 420 Warrant on a ea. fa. in debt. Ditto on a.Ji.fii. n debt. Ditto on a ea. sa. in assumpsit. Ditto on a fi fa. in assumpsit. WARRANTS. \ [ As before] to satisfy John Denn, as well a to wit. /certain debt of 500/. which the said John Denn, lately in the king's court before the king himself at IVest- minster, recovered against the said Richard Fenn, as also C3 5. which in the said court were awarded to the said John Denn for his damages, costs and charges, whereof the said Richard Fenn was convicted. Hereof fail not Given &c. Levy 253 /. besides poundage'^ and officer's expenses. J [/4s before'] I command you, and every of you, jointly and severally, that of the goods and chattels of John Doe, in my bailiwick, you cause to be made as well a certain debt of 500 /. which Richard Roe lately recovered against the said John Doe in the king's court before the king him- self at Westminster, as also 63 s. which in the same court were awarded to the said Richard for his damages, costs and charges by him laid out about his suit in that behalf expended, whereof the said Johyi Doe was convicted ; so that I may have those monies before His Majesty at Westminster, on to render to the said Richard Roe for his debt and damages aforesaid. Hereof fail not. Given, &c. Levy 353 /. besides, &c."l A. K. attorney. J By the same sheriff". [_ As before'} satisfy J'oAw Denn of 500 1, which the said Joh7i Denn, lately in our court before us at Westminster, recovered against the said Richard Fenn for his damages, which he sustained as well by means of not performing certain promises and undertakings lately made by the said Richard Fenn to the said Johi Denn, as for his costs and charges by him about his suit in that behalf expended, whereof the said Richard Fenn was convicted. Hereof fail not. Given, &c. ^^Z^K. attorney] ^^ ^^^ ^^^^ ^^^"^- [As before] that of the gootls ^nichattels of Richard Fenn, in my bailiwick, you cause to be made 500 /. which John Denn, lately in our court before us at Jl'est)ninster, recovered against the said Richard Fenn for his damages which he sustained as well by means of the not performing certain promises and undertakings lately made by the said Richard Fenn to the said John Denn, as for his costs and charges by him about his suit in that behalf expended, whereof the said Richard Fenn was convicted, so that I may have that money before His Majesty at Westminster, WARRANTS. * '421 on next after to render to the said John for his damages, eosts and charges aforesaid. Hereof fail not. Given, &c. Levy 500 I. By the same sheriff. Middlesex, \JoArt Dam esq. and Richard Fenn, esq. sheriff ^Varrant on to wit. J of the said county, to I. K. and B. C. my *''''^"'- bailiffs, greeting : By virtue of His Majesty's writ of elegit to me directed, I command you and each of you, jointly and severally, that without delay you or one of you seize and take all the goods and chattels of Richard Roe, (except the oxen and beasts of his plough), in my bailiwick, of which the said Richard Roe, on the day of in the year of the reign of his present Majesty was, or at any time since hath been seised, so that I may, by the oath of good and lawful men of by bailiwick, cause the same to be extended and appraised, and the said goods and chattels to be delivered to John Doe in the said writ named, to hold to him, as his own proper goods and chat- tels, towards satisfying his debt and damages in the said writ mentioned, and that you forthwith certify the same to me, so that I make the same appear before the lord the kmg dit Westminster, on Hereof fail not. Given, &c. Levy 500/. By the same sheriff. To A. B. my bailiff of the hundred qfC. E. F. esq. sheriff of the county aforesaid. -p Ditto on a _ y venirej'acii' — -V . - . to Wit. J virtue of His Majesty's writ to me directed, I the Exchetiuei, command you that you summon C. D. to appear before the barons of His Majesty's Exchequer at Westminster, on next coming, to answer C. D. His Majesty's debtor, of a plea of tresspass on the case, whereby, &c. Dated, &c. By the same sheriff. If in the C. P. on an original, say, Before His Majesty's justices of the bench at Westmin- ster, on the morrow of All Sonls, to answer C. D. in a plea of trespass. Dated, dice. To A. B. my bailiff of the hwidred qfC 1 E. F. esq. sheriff of the county aforesaid. By to wit, j virtue of His Majesty's writ to me directed, I command you that you distrain C. D. by all his lands and chattels in my bailiwick, so that neither he, nor any person for him, lay their hands upon the same, until I have another command thereof from his said Majesty, and that I may answer to His Majesty for the issues thereof, so that the said C. D, be before the barons of His Majesty's Ex- E E 3 Ditto on a distriiv^ns in the Exchequer. 422 Warrant in the King's Bench by original. Wanant on a sci.fa. at the suit of the king in the Exchequer. The like in the King's Bench. The like on a id. fa. against bail by bill. Warrant on the long urit, No. 5, on the distringas process Issued out of the Exchequer. WARRANTS. chequer at Westminster, on next coming, to answer C. D. His Majesty's debtor in a plea of trespass on the case, whereby, &c. Dated, &c. By the same sheriff. 'I [As in the other] so that he be before the lord to wit. j the king, on the morrow of All Souls, where- soever His Majesty shall then be in England, to answer H. H. of a plea of trespass on the case to the damage of the said H. of 300^. Dated, &c. A. K. attorney. \_As before'] That you give notice to A. B. that he may appear before the barons of His Majesty's Exchequer, at Westminster, on next coming, to show cause why His Majesty should not have execution against him for 100/. which His Majesty recovered against him, according to the tenor of the said writ. Hereof fail not. Dated, &c. By the same sheriff. [As before] That you give notice to A. B. that he may appear before the king at Westminster, on to show cause why C. D. should not have his execution against him for 50 1, debt, and 63 s. damages, which he recovered against him in His Majesty's court before the king himself, according to the tenor of the said writ. Hereof fail not. Dated, &c. By the same sheriff. [As before] That you give notice to G. D. and E. F. bail of C. D. that they may appear before the king at Westminster, on to show cause why A. B. should not have execution against them for lOoZ. damages, reco- vered against the said C D. in His Majesty's court, before the king himself at Westminster, according to the force, form and effect of a certain recognizance acknowledged by them the said G. D. and E. F. for the said C. D. in the said court. Hereof fail not. Dated, &c. By the same sheriff. To, SfC. my bailiff of, &:c. "I By virtue of His Majesty's writ to me directed, to wit. / I command you and every of you, jointly, &c. that you or one of you levy of the goods and chattels, lands and tenements, in my bailiwick, of the persons named in the schedule hereunto annexed, the several sums of money set against their respective names, and which are on them respectively charged in the schedule to the said writ an- nexed, so that I may have the said money before the barons of His Majesty's Exchequer at Westminster, from time to time as the same shall be levied ; and if the goods and chattels lands and tenements of the said several per- sons are not sufficient for the payment of the said several sums of money, then take the bodies of the said several WARRANTS. 423 persons \_peers and peeresses excepted] and keep them in safe custody until they shall fully satisfy His Majesty the said debts. You shall also distrain the several executors and administrators of such of the said persons as are dead, and the possessors of the goods and chattels which were theirs at the times of their respective deaths, and likewise the heirs and terre-tenants of the lands and tenements which they were seised of on the several days in the several years when they respectively first became indebted to His Majesty the several sums in the said schedule respectively mentioned, or at any time since, by all thpir lands and chattels in my bailiwick, so that they, nor any for them, lay hands thereon, until I shall otherwise command you, so that I may answer to His Majesty the issues of the said lands ; and so that I may have their bodies before the barons of His Majesty's Exchequer at I Westminster, on, &c. to an- swer to His Majesty the several debts respectively charged upon them in the said schedule : And what you shall do herein make known to me. Dated, &c. To, &c. By virtue of His Majesty's writ to me directed, \\' arrant on I command you and every of you, &c. that you omit not, *'^^ Exchequer &c. that you levy of the goods and chattels m my baili- for reco'oni- wick, of the several persons named in the schedule hereto zances forfeited annexed, the several sums of money set against their respec- and arrears of tive names, and which are charged upon them and each of them in the schedules to the said writ annexed, or re- quired from them or any of them, so that I may have that money before the barons of His Majesty's Exchequer at Westminster without delay; and if the said goods and chat- tels of the said persons, or any of them, are not sufficient for paym.ent of the said several sums of money set against their respective names, and charged upon them as aforesaid, then take the bodies of the said several persons, and each of them, not having any goods sufficient as aforesaid, [peers, lords and ladies only excepted), wheresoever you shall find them in my bailiwick, so that I may keep them in safe cus- tody in His Majesty's prison, until they have fully satisfied His Majesty the several debts charged upon them, and each of them, in the said schedules. You shall also distrain all the lands and chattels in my bailiwick of all the executors of the several last wills and testaments of the said several persons deceased, and each of them ; also the lands and chattels of the heirs and tenants of the lands and tenements which were lately theirs, so that I may have their bodies before the barons of His Majesty's Exchequer at Westmin- ster, on next ensuing, to answer to His Majesty for the said several persons the several debts aforesaid : E K 4 taxes. 424 Warrant on a capias utlaga- tum. Warrant on a ne eieat res:no. VVairant to (|uit possession on a fi. fa. WARRANTS. And what you shall do herein forthwith make appear to me. Dated, &c. 1 ,/. B. esq and V. U. esq. sheriff of the county to wit. J aforesaid, to John Doe and Richard Roe, my bailiffs of in the said county, greeting : By virtue of the king's writ to me directed, I command you and every one of you, jointly and severally, notwithstanding any liberty in my county, that you enter the same, and that you, or any one of you, take all the goods and chattels, lands and tenements of Richard Fenn, who stands out- lawed at the suit of Johji Denn, so that by the oath of good and lawful men of the said county I may diligently inquire of the goods and chattels, lands and tenements of the said Richard Fenn, by you so taken ; and by appraisement, ac- cording to the true value thereof, I may cause the goods and chattels aforesaid to be seised and taken into His Ma- jesty's hands : and what you, or any of you, shall do herein, you, or one of you, shall forthwith make known to me, so that I may thereof certify to His Majesty's justices at IVestminster on : and I further command you, and every one of you, notwithstanding any liberty in my county, that you enter the same, and that you, or any one of you, do take the said Richard Fenn, if he shall be found in my bailiwick, and him safely keep, so that I may have his body before His Majesty's said justices, at the day aforesaid, to do and receive what the king's court shall adjudge con- cerning him in this behalf. Dated the day of By the same sheriff. That you forthwith arrest the body of A. B. and keep him safe, until he find sufficient bail or security for the sum of /. that he will not go, or attempt to go, into parts beyond the seas, without leave of His Majesty's court of Chancery ; and in case he refuse so to do, I command you, each and every of you, that you commit him to His Ma- jesty's next prison within my bailiwick, there to be kept in my custody until he shall do it of his own accord. Dated, &c. Bail for I, By the same sheriff. To A. D. and all other my bailiffs. '(Quit possession of the goods and chattels of to wit. J A. B. notwithstanding my warrant to you or any of you directed, grounded on a writ of j^. Jii. to me directed, returnable before the lord the king at IVestminster, on next after at the suit oi J. K. for \ool. debt, and G3S. damages. Indorsed to levy 53/. 195. besides officer's fees, sheriff's poundage, &c. J. K. attorney. And for your so doing this is your warrant. Dated, &c. vit. j WARRANTS. T. B. esq. sheriff of the county aforesaid, to to wit. J the keeper of His Majesty's gaol of the said county. Discharge out of your custody the body of W. IV. if detained only at the suit of C. C. by virtue of a writ of latitat, issued out of His Majesty's court of King's Bench at We&tminster, and returnable there on next after to answer the said C. C. in a plea of trespass, and also a bill of the said C. C. for lool. upon promises. Bail for 50/. Aud for your so doing this shall be your warrant. Given, Szc. By the same sheriff. }G. A. esq. sheriff of the county aforesaid, to 2^. B. and C. D. my bailiffs greeting: By vir- tue of His Majesty's writ to me directed, I hereby com- mand you that you command C. //. and J. K. that they justly, and without delay, render to A. B. and J. his wife, the reasonable dower of the said J. which falleth to her out of the freehold which was of T. M. heretofore her husband, in the parish of in whereof she hath nothing, so they say, and whereof they complain that the aforesaid C. L. and J. K. now defendants, de- forceth them, and unless they shall so do, and the said A. B. and J. shall give me security that their suit shall be prosecuted, then summon, by good summoners, the said C. L. and J. K. now defendants, that they be before the justices of our lord the king at JVestmi?ister, on to show wherefore they will not do it. Hereof fail not. Given, &c. By the same sheriff. To, &c. ~i Summon G. P. esq. (having privilege of par- to wit./ liament) that he be before His Majesty at Westminster, on next after to answer /. K. in a plea of trespass on the case, upon promises, to the damage of the said J. K. of 50/. Hereof fail not. Given, &c. By the same sheriff. "1 G. K. esq. sheriff of the county aforesaid, to to wit./ A. B. my bailiff, greeting : By virtue of His Majesty's writ to me directed, I command you, that you distrain J. K. esq. (having privilege of parliament) by all his lands and chattels in my bailiwick, so that neither he, nor any person for him, may lay their hands upon the same, until I have another command thereof from his said Majesty, and that I may answer to His said Majesty for the issues thereof, so that the said J. K. be before His Majesty on wheresoever, &c. to answer C. D. of a plea of trespass on the case, to the damage of the said C.I>. of 50/. Hereof fail not. Given, Sec. 425 Warrant on a supersedeas, to discharge the defendant out of custody. Warrant on a writ of dower. On a writ of summons against a member. Warrant on a distringas against a member. 426 On a writ of possession. AV arrant on a pone in replevin. Warrant to summon inha- bitants on statute of hue and cry on an original. Summons to a person to serve on the grand jury at sessions. Warrant on a writ of excom- mitnicato cupktt'lo. WARRANTS. "1 ^. K. esq. sheriff of the county aforesaid, to to wit. j A. B. and C. D. my bailiffs, &c, greeting: By virtue of His Majesty's writ of habere Jacias possessionem to me directed, I command you, that you deliver unto John Doe possession of his term yet to come of and in one messuage, &:c, \Jiere set forth the premises'] with the appurtenances, in the parish of H. in the said county, which the said John Doe hath recovered against Richard Roe in His Majesty's court, before the king himself, and render me an account herein, so that I may make the same appear before the king at Westminster, on next after Hereof fail not. Given, \c. By the same sheriff. To B. K. my bailiff. "1 Give notice to A. B. to be and appear before to wit f the king's justices at Westviinster, on that he may be there ready to proceed in the plaint which is in my county, without the king's writ, between the said A. B. plaintiff, and C. D. defendant, of the goods and chattels of the said A. taken and unjustly detained, as it is said. Dated, &c. \E. R. esq. &c. to J. P. and J. R. my bailiffs, to wit./ greeting : By virtue of His Majesty's writ to me directed, I command you, and each of you, that you summon the inhabitants of the hundred of R. in the county aforesaid, to be and appear before our sovereign lord the king, on wheresoever, &c. to answer as well to our said lord the king, as to G. G. in an action brought against the said hundred, on a statute made in the 13th year of the reign of His Majesty king Edward the first, for a robbery committed on him the said G. G. in the parish of T. and hundred of iZ. aforesaid, for, &c. [follow the words of the original], in monies numbered, bemg the proper monies of the said G. G. And this, &c. Given, &c. , ss. B}' virtue of a warrant from E. S. sheriff, &c. I do hereby summon and warn you to be and appear before the justices at the next general quarter sessions of the peace, to be holden at A. in the said county, on the day of next, at o'clock in the forenoon, then and there to serve on the grand jury. Dated, kc. A. B. bailiff. , 55. E. S. esq. sheriff, &c. to J. B. &c. my bailiflPs, greeting : By virtue of the writ of our sovereign lord the king to me directed, I command you, and every of you, that you or one of you attach G. L. by his body, accord- ing to the custom of Evgland, if he shall be found in my WARRANTS. bailiwick, and him under safe and secure conduct lead, or cause to be led, to the gaol of our said lord the king, for my county there, in prison to be safely kept, until he shall have made satisfaction to the holy church, as well for the contempt, as for the injury by him done unto it : And how you shall execute this warrant forthwith make appear to me, so that I may certify the same to His Majesty ,on wheresoever His Majesty shall then be in England, that His said Majesty may cause further to be done in the premises what of right and according to the form of the statute in such case lately made and provided shall be meet to be done, &c. Given, &c. , ss. E. S. esq. &c. to the keeper of the gaol of the said county, and also to A. B. and C. D. my bailiffs, greeting : By virtue of His Majesty's writ to me directed, I command you, and each of you, jointly and severally, that you or one of you do, on His Majesty's behalf, make proclamation in all places within my bailiwick, as well within liberties as without, wheresoever it shall seem meet, that F. G. clerk, do upon his allegiance, on next ensuing, personally appear before the king, in his court of Chancery, on , and in the mean time, if you can find him the said F. G. attach him, so that I may have his body before the said lord the king, in his said court, at the time above mentioned, to answer His Majesty, as well touching a contempt which he hath, as it is alleged, com- mitted against His said Majesty, as touching those matters which shall be then and there objected against him, and further to perform and abide such order as His Majesty's said court shall make in this behalf, &c. Given, &c. , ss. J. G. esq sheriff of the county aforesaid, to the keeper of the gaol of the said county, as also to S. H. and V. H. my bailiffs, for this purpose only, greeting : By virtue of the writ of our sovereign lord the king, to me directed, I command you, and each of you, jointly and separately, that you omit not by reason of any liberty in my bailiwick, but that you enter the same, and take B. H. if he shall be found in my bailiwick, and him safely keep, so that I may have his body before the barons of His Majesty's Exchequer at Westminster, on the day of next, to answer His Majesty concerning certain articles, whereon he is impeached, by an information exhibited against him before the said barons by His Majesty's attorney-general, for the forfeiture of 607/. 7*. for the offence in the said information mentioned, &ic. Bail for 202/. 105. By the same sheriff. N. S. solicitor for the Excise. 427 Warrant on contempt for not putting in an answer in the court of Chancery. Take the words of the writ. On an Excise process out of the Exchequer. 428 On habeas coqiux ad tei- iificandum. \VaiTant on spe- cial oiiginal. Summons on a special ori- ginal. Notice to be left by officer. WARRANTS. , 55. /. G. esq. sheriff, &c. to the keeper of the gaol of the said county, greeting : By virtue of His Majesty's writ to me directed, I command you, that you have the body of E. JV. detained in my prison under your custody, by whatsoever name he may be charged in the same, under safe and sure custody, before the justices of the lord the king assigned to hold the assizes in and for the county of at the town of in the said county, in the great hall of pleas there, on the day of next, by of the clock in the forenoon, then and there to testify the truth according to his knowledge in a certain cause now depending before the king's justices, and then and there to be tried between /. C. plaintiff, and /. S. de- fendant, on the part of the said /.C, and immediately after the said E. JV. shall have then and there given his testi- mony before the said justices, to return him the said E. JV. to the said prison under the like safe and secure conduct. Herein fail not. Given, 6cc. ss. A. B. esq. sheriff of the county aforesaid, to the keeper of the gaol of the said county, and also to John Doe and Richard Roe, my bailiffs, greeting : By virtue of a writ of our sovereign lord the king to me directed, I com- mand you, jointly and severally, that ye take, or one of you take, C. Z). esq. if he be found in my bailiwick, and him safely keep, so that I may have his body before our lord the king on , wheresoever, &c. to answer E. F. in a plea of trespass upon the case, upon several promises and undertakings, to the damage of the said E. F. of 300 Z. as it is said. Bail for . Hereof fail not, as you will answer at your peril. Given under the seal of my office, the day of Writ dated the same day,"\ By the same sheriff. A. B. for E F. j Beware the defendant be not privileged or protected. This warrant is allowed for one defendant, and no more ; and to be executed by no bailiffs but those who have given the said sheriff secuiity. ss. To A. B. and C. D. my bailiffs, kc. Sum- , „„. — — — - — J , mon C. D. that he be and appear before our lord the king in wheresoever, &c. for in C. P. [before our justices at JVestminster, on ] to answer J. K. in a plea of trespass on the case to the dameges of the said J. K. of Dated, &c. E. F. You are served with this process at the suit of G. //. to the intent that you may appear by attorney, in WARRANTS. 429 His Majesty's court of Common Pleas at Westminster, at DufLmlant h the return thereof, being the day of 1 8 »'>' personally in order to your defence in this action. And take notice, s""'">"ne'^- that in default of your a})pearance, the said G. H. will, cause an appearance to be entered for you, and proceed thereon as if you had yourself appeared by your attorney. To A. B. and C. D. my bailiffs. Distrain E. F. Warrant on a by all his lands and chattels in my bailiwick, so that I may distrhigus. have him before the king's justices of the Bench, at West- minster, on [or in K. B. before our lord the king, wheresoever, &c.] to answer G. H. of a plea of trespass. Dated, &c. Levy 40*. I. K. attorney, &c. C. H. sheriff. In the court of [specifying the court in which the suit Notice to be shall be depending] between A. B. plaintiff, and C. D. de- served on de- fendant [naming the parties]. Take notice, that I have ^^^^"^^ ^y this day distrained upon your goods and chattels for the ing 'di^rimai^ sum of 50.S. in consequence of your not having appeared by your attorney in the said court at the return of a writ of returnable there on the day of and that in default of your appearing to the present writ of distringas at the return thereof, being the day of the said A. B. will cause an appearance to be entered for you, and proceed thereon as if you had your- self appeared by your attorney. E. F. To C. D. the above-"! The name of the sheriff's officer, named defendant./ As the fees payable to the sheriffs (except poundage, Fees to the which is settled by act of parliament) vary in almost s'>e"ffs of every county, it would rather tend to mislead than in- warrant's, struct if any table of fees was attempted to be given. For the general rules respecting them, vide the head Sheriff's Fees, page 155 ; a few, however, taken from the office of the sheriff of ASwrrey, are here subjoined. The sheriflp cannot charge more than Is. 6d. on any warrant upon a special capias, summons or original bill, venire out of the Exchequer, sci. fa., ne exeat regno, supersedeas, vend, expon., attachments, distringas, elegit, fi. fa., cap. sa., or other execution, though he recite his whole writ. But on writs of non omittas and capias, issued for the king's debt on customs or excise forfeitures, they charge five shillings. 4a0 WARRANTS. On a latitat or capias they charge 2s. Qd. for a war- rant; Surrey, Essex and Kent, Is. Qd. If there is a discharge to the gaoler on a supersedeas, 5 s. 6d. £. s d. For attending to strike a special jury - -2 2- For a view - - - - - - -2 2- Attendance at the trial - - - ~. ^ ^ ~ For summoning a jury upon a commission of lunacy - - - - -~ -33- For an inquisition on a writ of inquiry in Mid- dlesex - - - - - - -1110 Ditto in London - - -- - -1116 Inquisition on outlawry (one finding) - - 1 15 (5 _ _ _ - elegit - ditto - - - 1 15 6 - - - - extent - ditto - - - 1 15 6 For more than one finding - - - — 3 8 [ 4:31 ] APPENDIX OF FORMS TO OFFICE OF SHEFilFF, An Indenture for setting over Prisoners and Writs hetweeii the old and new Sheriff. HTHIS indenture, made the day of in the year of the reign of our sovereign lord, &c. and in the year of our Lord , between J. O. esq , late sheriff of the county of , of the one part, and W. K. esq., present sheriff of the said county, of the other part, witnesseth, that the said late sheriff hath delivered, and the said present sheriff hath received from the said late sheriff at the time of his going out of his office, the bodies of the several persons hereinafter named, charged with the cause or causes hereinafter mentioned, (that is to say,) A. B. was taken the day of by virtue of a writ of capias ad satis- faciendum, returnable before the king's justices at Westmin- ster in fifteen days from the day of Easter, to satisfy C. D. for lool. which in the king's court, before the king's justices at Westminster, were awarded to the said C, D. for his damages, &c. wherof the said A. B. is convicted. Corbet and Hardy ; he is detained by virtue of another writ of capias ad satisfaci- endum, returnable before the lord the king at Westminster, on Monday next after the morrow of the Ascension, to satisfy T. //.for loo/. which in the king's court, before the king himself at Westminster, were awarded to T. H. for his damages, &c. whereof the said A. B. is convicted. Johnson for Hatt ; he is also detained by virtue of a writ of attachment, return- able before the barons of the king's Exchequer at Westmin- ster, on the day of last, to answer the lord the king concerning divers trespasses, contempts and offences by 432 APPENDIX OF FORMS him lately done and committed, at the suit of R. I. for not paying the several sums of, &ic. making together the sum of 200/. costs taxed. Lane. In witness whereof the said parties to these presents have hereunto set their hands and seals, the day and year first above written. I acknowledge to have in my custody the bodies of the several persons hereinbefore named, except A. B. and C. D. against whose names the word discharged, and J. B. deceased, is written in the margin of this deed ; the prisoners in my custody being in number 125. Witness my hand the day of 18 . Witness, J. K. Gaoler. Deputation from the High Sheriff to the Tinder-Sheriffs to he executed before the first Day of Easter Term, and filed in the Treasury of the Remembrancer^ s Office, Paper- building's , King' s-bench-walks. CERTIFY the barons of His Majesty's court •}I^ to wit. J of Exchequer, that I, A. B. esq., sheriff of the said county, have deputed, constituted and appointed, and in my place put C. D. of, &c. gentleman, my deputy, to give an account of the issues and profits of my oflftce of sheriffwick only during so long time as I shall continue sheriff of the said county ; according to the course of the Exchequer, as in such case is required, I have duly authorized and appointed the said C. D. my under-sheriff of the said county, to execute the said office for me, and in my name, during my sheriffalty. In witness whereof I have hereunto set my hand and seal of office, this day of Letter of Attorney from the High-Sheriff to his Under- Sheriff, to receive his Patent Money. "I^HEREAS by an act of parliament made and passed in the third year of the reign of his late Majesty king George the first, intituled, " An Act for the better regulating " the office of sheriff, and for ascertaining their fees, for suing " out their patents, and passing their accounts," certain sums of money are ordered to be paid to the sheriffs of England and If 'ales for the purposes in the said act mentioned : And whereas the sum of 90/. 55. is by the said act ordered to be paid to the sheriff of the county of ; Know all men by these presents, that I, A. B. esq. sheriff of the said county of for the year ending at in the year of His present Majesty, //avemade, ordained, constituted and TO OFFICE OF SllEUH'F. 433 appointed, and by these presents Do make, ordain, constitute and appoint C. D. of, &c. and E. F. of, &c. gentlemen, my true and lawful attornies, jointly and severally, for me, and in my name, to ask, demand and receive of and from the lords commissioners of His Majesty's Treasury, or of or from any other person or persons concerned in His Majesty's receipt of Exchequer, the said sum of 90/. 55. and for me, and in my name, to give such receipt or acquittance for the same as in such case is usual : And further to do and pcr- foran all such other matters and things as shall be necessary in this behalf. In witness, &c. Sealed, &c. Indenture of Covenants between the High Sheriff and Under -Sheriff. HTHIS indenture, made the day of in the ^ year of the reign of our sovereign lord, ike. and in the year of our lord 18 , between the right worship- ful C. A. and R. G. esquires, two of the aldermen of the city of London, of the one part, and J. R. and C. B. of the city oi' London, gentlemen, of the other part, witnesseth, that they the said C A. and R. G. being elected and chosen, and having on the day of the date hereof, taken the office of sheriti" of the county of M. for the whole year, commencing from the day of the date hereof, in consideration of the as- sured hope and trust which they the said C. A. and R. G. have that the said ,/. R. and C. B. will take care that the office of under sheriff be honestly, uprightly, duly and suffi- ciently discharged within the said county of M , and that the said sheriff shall be free and discharged from all charges and damages whatsoever relating to the said office, and for the considerations hereafter in these presents mentioned, they the said C A. and R. G. have been pleased and contented to depute, ordain, constitute and make the said J. R. and C. B. to be their under-sheriff of the said county of M. for the same time and term, and so long as they or either of them shall continue in the said office; but never- theless, so as that the said office of under-sheriff shall be executed by and with the joint concurrence and direction of them the said J. R. and C B. and not otherwise, and also subject to the proviso or power hereinafter mentioned, of dis- placing or removing the said ,/. R. and C. B. from the said office of under-sheriff, as hereinafter is mentioned. And the said C. A. and R. G. the more effectually to empower the said J. R. with the concurrence of the said C. B. as aforesaid, to execute the said office of vinder-sheriff of the said county of M. have, and each of them hath (as much as in them lieth, F I' 434 APPENDIX OF FORMS and tliey lawfully may) authorized, constituted, deputed, and do, and each of them dolh, authorize, constitute, depute and appoint him the said J. It. and all and every such clerk and clerks as he the said J. R. with such concurrence as afore- said shall employ and appoint in the said office of under- sheriff, by writing under the hand and seal of the said J. R. in the name of them the said C. A. and R. G. as sheriff of the said county of M. upon the request of any plaintiff or plaintiffs, to sign, seal, execute, and as their act and deed deliver; and all and every assignment and assignments of any bail-bond or bail-bonds, that shall or may, at any time or times hereafter, during their sheriffalty, be taken in their names as sheriff of the said county of M. from any defendant or defendants, by virtue of any writ, precept or precepts, or mandate whatsoever, which shall be directed to them for the execution thereof; and also for such deputy or deputies to take any inquisitions requisite on all process requiring the same, and as shall be directed to the sheriff of the county of M. during the sheriffalty of the said C. A. and R. G., in considei'ation whereof, and for other good causes and consi- derations them thereunto moving, they the said J. R. and C. B. for themselves severally, and for their several and respective heirs, executors and administrators, do, and each of them dot/i, covenant, promise and grant, to and with the said C. A. and R. G. respectively, and their respec- tive executors and administrators, by these presents, in manner following, (that is to say,) that he the said J. R. M'ith such concurrence as aforesaid, shall w^U and truly, honestly and sufficiently, by and during the said term and time, and so long as the said C. A. and R. G. or either of them, shall continue in the said office of sheriff of the said county of M. execute and duly perform the same, carefully, well, truly and honestly demean and behave himself therein, and shall, during the said time and term, well, truly, honestly and sufficiently, with the concur- rence of the said C. B. as aforesaid, execute, or cause and procure to be executed, all and every writ and writs, process and processes, warrant and warrants, precept and precepts, mandate and mandates, directed, or to be directed, from our sovereign lord the king, his heirs or successors, and from and out of all and every or any of His Majesty's courts at WesU minster, or any other courts elsewhere, or otherwise, or from any commissioner or commissioners, justice or justices of the peace, or other person or persons, officer or officers, which have or shall have authority thereunto, to the said sheriff of the said county of M. which during the said time or term shall be or to be executed ; and of the same and every of them, in all due, fit and convenient time, shall make true and TO OFFICE OF SHERIFF. ''^^ sufficient returns, at the several days, times and places, ac- cording as the said C. A. and R. G. by the said writs, pro- cesses, warrants, precepts and mandates, or any of them, is or shall be required, limited or appointed to return the same ; and shall also by and during the said time and term, and at all times afterwards, save, keep harmless and indemnified, the said C. A. and R. G. and each of them, their and each of their heirs, executors and administrators, and their and each of their goods, chattels, lands, tenements, hereditaments and estate, and every part and parcel thereof, of and from all manner of action and actions, cause and causes of actions, suits, fines and amerciaments, pains, sum and sums of money, penalties, contempts, forfeitures, judgments, executions, da- mages, costs and losses, and of and from all and every other troubles, charges and incumbrances whatsoever, that shall or may happen, arise, grow, put unto, or shall be assessed, im- posed, set or taxed upon or against the said C. yi. and R. G. or either of them, or upon the sheriff of M. at any time or times, for or by reason of the executing, not executing, returning, not returning, or mis-returning, or the not due returning or executing of any of the said writ or writs, pro- cess or processes, mandate or mandates, prece{)t or precepts, warrant or warrants, or by reason of any suits or disputes as may hereafter arise between the said J. R. and C. B. or either of their executors or administrators, and without any trouble, costs, charges, damages or expenses therefor to be sus- tained, incurred or expended by the said C. A. and R. G. or either of them, their or either of their executors or adminis- trators, in, about, for, touching or concerning the same ; and shall also from time to time, and at all times hereafter, give notice unto the said C. A. and R. G. of all and every writ or writs that shall be sued or brought against them, or either of them, that shall come to the said J. R. and C. li. or either of them, their or either of their deputies, clerks or servants ; or whereof the said J. R. and C. B. or either of them shall have notice, and shall not appear, or cause any appearance to be made or entered, or any common bail to be filed upon any writ or action that shall be brought against the said C. A. and R. G. or either of them, without the privity or allowance of them the said C. A. and R. G. or such of them against whom any such wit shall be brought : And further, that the said J. R. and C. B. or either of them, their or either of their deputy or deputies, clerk or clerks, or any other person or persons for or under them, or either of them, in the name or names of the said C. A. and R. G. or either of them, shall not, at any time or times hereafter, during the said term or terms, make or cause to be made any return or returns of or to any writ or writs, process or processes, precept or precepts, r r 2 43(5 APPENDIX OF FORMS warrant or warrants, mandate or mandates whatsoever, touch- ing or in anywise concerning the liberties or franchises of the city of London, in the name or names of the said C A. and R. G. as sheriff of the said county of M. without timely acquainting them the said C. A. and B.. G. therewith, and taking and pursuing their just and lawful directions therein, if they upon or after such notice in due time give such direc- tions therein : And also, that they the said ./. R. and C. B. or one of them, their or one of their executors or adminis- trators, shall and will, at all times hereafter, acquit and dis- charge, or otherwise well and sufficiently save, keep harmless and indemnified the said C. A. and R. G. and each of them, their and each of their heirs, executors and administrators, and their and each of their goods and chattels, lands, tene- ments and estates, of and from all and every suits, charges, losses, payments, damages, fines, amerciaments and hindrances whatsoever, that shall or may, at any time or times, during the said time they shall continue in the said office, or at any time then after, arise, happen, grow or come unto, or be brought against them the said C. A. and R. G. or either of them, their or either of their heirs, executors or administrators, goods, chattels, lands or tenements, for or by reason of any rescue or rescues, escape or escapes, or letting any prisoner or prisoners, voluntarily or negligently, or otherv/ise, to go at large or escape, or for not taking sufficient bond or bonds, with sufficient and good security ; or for persons arrested or to be arrested ; or of or for prisoners bailable ; or of refusing to accept of bond or bonds, in such manner as by law is or shall, during the sheriffalty of the said C. A. and R. G., be required of any person or persons arrested, or to be arrested, for any matters or causes, for which he, she or they, shall or should be bailed by law ; or for the making, or making amiss, or not bills or precepts, which shall or may at any time be declared or adjudged insufficient by any of His Majesty's courts at West- minster, then, and in every such case, the said bailiff shall and will bear, satisfy and pay to the said sheriff or under- sheriff, all loss, costs, charges, damages, expenses and amer- ciaments, which the said sheriff or under sheriff shall in any manner suffer, sustain, pay or be put unto, for or by reason of the making any such insufficient return or returns ; — That if any writ or writs of attachment of contempt hath or TO OFFICE OF SHERIFF. 455 have issued, or shall hereafter be sued out and prosecuted against the said sheriff, for or by reason of the not bringing into court the body or bodies of any person or persons arrested or taken by the said A. B. of or for whom he hath or shall take any bail-bond to the said sheriff, or of or for whom the said bailiff ought to have taken any such bond, then, and in every such case, the said A. B. &c. shall and will well and faithfully bear, pay and discharge, to the said sheriff, or to the said under sheriff, all losses, costs, charges, damages and expenses, which they or any of them shall or may suffer, sus- tain, pay or be put unto, for or by reason of any such writ or writs of attachment, or for or by reason of any person or persons, forbearing to execute or further prosecute the same : — That if any copy or copies of any warrant or warrants shall be delivered, sent or certified to the said A. B. from the said sheriff, under-sheriff, deputy or clerk, as a copy or copies of any other warrant or warrants, or detainer or de- tainers, against any person or persons arrested or taken by the said bailiff, or delivered to him, or left at his house or place of abode, for safe custody, by any other bailiff or bailiffs of the said sheriff, then, and in every such case, the said A. B. shall and will, if such copy or copies shall happen to be against the person or persons arrested, or then in his custody as bailiff aforesaid, safely keep him, her or them, by virtue of such detainer or detainers, until he, she or they, shall be dis- charged by due course of law ; and upon every bailable writ or process, which shall appear from any such copy or copies, the said A. B. shall and will take a good and sufficient bail- bond, if the same shall be tendered : — That the said A. B. shall and will, whenever he shall receive any copy or copies as aforesaid, give notice to the bailiff or baihffs, who shall have the custody of the original warrant or wari'ants, or to whom the same is or shall be directed, to the intent that every such original warrant may be immediately returned to the said under sheriff, deputy or clerk, at the public office of the said sheriff: — That if any copy or copies of any warrant or war- rants, which shall or may be sent, delivered or certified to the said A. B. as aforesaid, shall not happen to be against the per- son or persons by him arrested, or then in his custody, the said A. B. shall immediately return every such copy, and give notice in writing thereof to the said under-sheriff, deputies or clerks, at the public office of the said sheriff: — Provided always, that the said bailiff shall, immediately on the receipt of any warrant to liim directed from the said sheriff, under- sheriff, or any other person or persons by them or either of them duly authorized and signed by or in the name of the said sheriff, to discharge any prisoner or prisoners, or quit pos- session of any goods or chattels seized as aforesaid, discharge G G 4 45G APPENDIX OF rORMS any such prisoner or prisoners, and quit possession of such floods and chattels: — That the said A. B. shall not, during the said shrievalty, seize or take in execution the goods of, or attach, or arrest the body of any ambassador or foreign mi- nister, or the servant of any ambassador or foreign minister, or of any other person whatsoever, privileged or protected, without license in that behalf first had and obtained, under the hand-writing of such person or persons, who for the time being have good authority to grant license in that behalf: — r^rtf the said A. B. shall and will take good and sufficient bail-bonds, or bonds of appearance, (if the same shall be ten- dered) of all persons by him arrested or taken on bailable process, Mhereon he shall execute or serve any warrant or warrants to him directed, by or in the name of the said sheriff, according to the form of the statute in such case made and provided ; and that the said bailiff, before he shall let to bail any person so an-ested or taken, shall procure a certificate in writing, under the hand of the said under-sheriff, his deputy or clerk, purporting that there is not any other writ or process then in the sheriff's office against the person so arrested or taken : — T/ial the said A. B. shall and will deliver unto the said under sheriff, deputies or clerks, all bonds bailable, or otherwise, which he shall take to the said sheriff, within two days after the same shall be taken ; and if the said A. B. shall neglect or refuse so to do, then, for every such refusal or omission, he shall and will forfeit and pay to the said under sheriff, deputies or clerks, ten shiUings of like lawful money: — That the said A. B. during the said shrievalty shall execute to the said sheriff a sufficient bail-bond to all writs, processes and precepts which shall be delivered to the sheriff against him ; and shall appear thereto, and put in such bail as the same shall require, or render his body to the said sheriff, to the intent that he may be duly committed ; and further shall do and perform all such things as the law in that behalf shall require : And also shall satisfy and pay unto the said sheriff", or to the said under-sheriff, all such sum and sums of money for which any writ of execution shall be delivered to the said sheriff, against him the said A. B. or otherwise shall render himself a prisoner to the aforesaid sheriff thereupon : — That the said bailiff shall pay to the said sheriff, or under sheriff, all losses, or any sum or sums of money which they or either of them shall suffer or pay for or by reason or means of any writ or process delivered to the said sheriff against him : — That if any debt, damage, sum or sums of money whatsoever, shall at any time or times hereafter be recovered, adjudged or decreed against the said sheriff for the escape or suffering to go at large any prisoner or prisoners whatsoever, or for taking insufficient bail of prisoners, bailable by law, or refusing or TO OFFICE OF SHERIFF. ^157 neglecting to take sufficient bail, or for taking bail of such prisoners as by law are not bailable, or by mistake in levying one persons goods for another, or for any other cause, where it shall appear that such escape or suffering to go at large, taking such goods, or other cause, was or were occasioned, made, done, committed or suffered by the default, negligence, permission or occasion of the said A. B. or any of his ser- vants, or others by him entrusted or employed : — That in every such case, the said A. B., C. D., E. F., &c. or some of them, their or some of their executors or administrators, shall well and truly satisfy and pay unto every such person or persons, who shall so recover against the said sheriff, or unto whom any thing shall be recovered, adjudged, ordered or decreed, all and every the same debts, damages, sum and sums of money, goods or things so recovered, adjudged, ordered or decreed, without any further suit or delay, and shall thereof clearly exonerate, acquit and discharge the said sheriff, and shall likewise satisfy and pay unto the said sheriff, or to the said under-sheriff, all such sum and sums of money as the said sheriff, or under-sheriff, or any of them, shall have disbursed or expended in defending any such suit, over and above the usual costs, in any court or courts, against the said sheriff in that behalf adjudged: — That the said bailiff, on the day of now next coming, shall deliver to the said sheriff, under-sheriff, deputies or clerks at the public otnce of the said sheriff, all warrants which may be hereafter granted by or in the name of the said sheriff, on any writ or process returnable in the then next term, which shall remain in his hands not executed, to the end that the said sheriff may turn over to the succeedmg sheriff, by indenture, all such writs and process as shall remain in his hands un- executed, pursuant to the statute in that case made and pro- vided : Provided nevertheless, and it is covenanted, concluded and agreed upon, by and between the said parties to these presents, that when and so often as the said bailiff shall make breach of any of the covenants, articles and agreements, which, by or on the behalf of him, are or ought to be ob- served, performed, fulfilled and kept, that then and from thenceforth it shall and may be lawful for the said sheriff, or the said under sheriff, deputies or clerks, to remove and put out the said bailiff, from his said office or employment : — And in case of such removal, that he shall deliver, or cause to be delivered unto the said sheriff, under-sheriff, deputies or clerks, all such warrant or warrants, precept or precepts, bond or bonds, writing or writings whatsoever, which may or shall in anywise appertain or belong to the said sheriff; and also shall pay to the said sheriff, or under-sheriff, all and every sum and sums of money by him levied, received or collected, by virtue of any such warrant, precept or mandate 458 APPENDIX OF FORMS of the said sheriff, and then remaining in his hands, the said sheriff, under-sheriff, deputies or clerks giving unto the said bailiff a receipt or acquittance for the same : — That the said A. B. shall and will during the said shrievalty, before he shall execute or serve, or permit to be executed or served, any warrant or mandate in replevin to him directed, by or in the name of the said sheriff, take good and sufficient pledges and bonds in replevin, and shall and will deliver all such bonds immediately after the execution thereof, to the said under- sheriff, deputies or clerks, at the public office of the said sheriff, fair and uncancelled : — That the said A. B. shall and will well and faithfully bear, pay and discharge to the said sheriff, or under-sheriff, all loss, costs, charges, damages and expenses, which hath, have or shall at any time or times hereafter be recovered, adjudged, ordered or decreed against them, or any of them, in any court of law or equity, for or by reason of any insufficient pledges in replevin, taken by the said bailiff to the said sheriff, or for or by reason of not takmg good and sufficient pledges and bonds, upon any plaint or writ wherein the said A. B. hath or shall execute or serve any replevin warrant to him directed, by or in the name of the said sheriff: — And lastly, the said A. B., C. D., E. F. and G. H., for themselves severally, and for their and every of their heirs, executors and administrators, further covenant, promise and agree, to and with the said sheriff, his executors and administrators, that they the said A. B., &c. and every of them, shall and will for ever clearly acquit, exonerate, defend, save harmless, and keep indemnified, the said sheriff, his executors and administrators, of, from and against all loss, costs, charges, damages and expenses which he can, shall or may in any manner suffer, sustain, bear, pay or be put unto, as well for or by reason or means of the breach or non-performance of any of the articles, covenants, clauses and agreements hereinbefore contained, as for or by reason of any act, matter or things made, done or committed, or wittingly or willingly suffered to be made, done or com- mitted, by the said A. B. to the prejudice or injury of the said sheriff, or under-sheriff, or for or by reason of the not performing, duly executing and accomplishing all such mat- ters and things incident or belonging to the said office of bailiff, which he ought to do, or cause to be done in the pre- mises. In witness, &c. Appointment of Sheriffs of London and Middlesex, to the Keeper of the Gaol of Newgate. T^HIS indenture, made the day of in the year of the reign of our sovereign lord William the fourth, &c. and in the year of our Lord 1 8 . Between TO OFFICE OF SHERIFF. 449 of the city of London, alderman and goldsmith, and of the city of London, esquire, citizen and liaberdasher, of the one part, and of the Old Bailey, London, gentleman, of the other part, Witnesseth, that the said and being elected and chosen, and liaving taken upon them the office of sheriffs of the city of London, and also the office of sheriff of the county of Mid- dlesex, for one whole year, commencing from the day of the date hereof, as well in consideration of the assured hope and trust that they the said and have of the fidelity and honest dealing of the said and of the confidence they repose in him, as for and in consideration of the cove- nants and agreements hereinafter contained, on the part and behalf of the said his heirs, executors and adminis- trators, to be kept and performed, as also for divers other good causes and considerations, them the said and thereunto moving, have and each of them hath (as much as in them lie, and they lawfully may) deputed, or- dained, constituted, authorized and appointed, and by these presents do, and each of them doth, depute, ordain, constitute, authorize and appoint, the said to be their gaoler or keeper, for and under them the said and of all and every such prisoner or prisoners, as now is or are in the custody or keeping of them the said and or any of their deputy or deputies, servants or assigns in the gaol or prison of Neivgate, who shall at any time or times hereafter, during the shrievalty of them the said and be sent, brought or committed prisoners to the said gaol or prison of Neivgate, or delivered or committed into the custody or keeping of them the said and or either of them, as sheriffs of London or sheriff of Middlesex, by virtue or means of writ or writs, process or processes, warrant or warrants, mandate or mandates, or otherwise on any pretence whatsoever, by any person or persons, having lawful authority in that behalf: — But subject nevertheless to the proviso, or power of displacing or removing the said from the said office of gaoler or keeper of Newgate, at the will and pleasure of the said and or either of them. And they the said and have, and each of them hath, constituted and appointed, and by these presents do, and each of them doth, constitute and appoint the said for them, and in their names, or in the name of him the said and to and for the proper use of him the said to demand, take and receive all such just and lawful profits, benefits, commodities, advan- tages, fees and perquisites, as shall and may be lawfully had, made, gotten, received or become due, or as are or shall be during the said shrievalty of the said and incident, belonging or appertaining to the said place or office of gaoler or keeper of Neivgale, arising therefrom, or by 460 APPENDIX OF FORMS reason thereof in anywise howsoever, as a recompense to the said for his trouble, risk and care in the execution of the said office of gaoler or keeper of Neivgate, and under- taking at his own proper costs and charges, from time to time, during the shrievalty of the said and or either of them, and his the said being continued the gaoler or keeper of the said gaol of Neivgate, by the said and or either of them, to find, provide and be at the expense of all necessary goods, utensils and furni- ture for the use of the said gaol or prison of Neivgate, and also all requisite and necessary iron fetters, locks, bolts, manacles, handcuffs and other cuffs, ropes and other things usually found and provided by any gaoler or keeper, in or about the said prison, for the safe custody of the prisoners committed, or to be committed, during the said shrievalty of the said and thereto, according to his the said covenant, hereinafter for that purpose men- tioned ; — And also, in consideration of the said and their heirs, executors and administrators, shall be freed and discharged by the said his heirs, executors and administrators, from time to time, during his continuance in the said office of gaoler or keeper of Neivgate, under the said and or either of them, from all charges and damages whatsoever, relating to the said office of gaoler, as herein is mentioned. — That they the said and do severally covenant, promise and grant by these presents, and each of them, their and each and every of their executors and administrators, to and with the said his executors and administrators, that they the said and shall and will allow unto the said to and for his own use, all the just and lawful profits, benefits, commodities, advantages, fees and perquisites, as shall be received by the said by virtue of his said office, during so long time as he shall be continued therein, under them the said and or either of them : — And, in consideration of the premises, and for other good causes and considerations, him the said thereunto moving, he, the said for himself, his executors and administrators, and for every of them, doth covenant, promise and grant to and with the said and their executors and administrators, by these pre- sents, that he the said shall well, truly, duly, honestly and sufficiently, (during so long as the said and or either of them, shall continue in the said office of sheriffs o^ London or sheriff of Middlesex, and shall think fit to continue the said in the office of gaoler or keeper of Neivgate,) honestly execute and perform the same, and carefully, well and truly demean and behave himself therein, and in all matters and things whatsoever thereto relating, without committing any extortion, or accepting any TO OFFICE OF SHF.RIFF. 4GI unlawful bribes, fees or rewards, either by himself, his agent or agents, deputy or deputies, servant or servants, or in any otherwise in trust for him or for his use : And also, that he the said or his deputy or deputies, agent or agents, shall and will from time to time, and at all times from hence- forth, during his the said being continued in the said office of gaoler by the said and stand and be charged with all and every the prisoner and prisoners as is and are now remaining and being in or belonging to the said gaol of Newgate. Andlikcxvisc, that the said or his agent, shall also from time to time, and at all times from henceforth, during the said being continued in the said office by the said and receive and take into his custody, and for safe keeping in the said gaol, all and every prisoner and prisoners who shall be from time to time hereafter (during so long time as they the said and shall continue sheriffs of or for the said city of London, and sheriff of the county of Middlesex, and continue the said in the said office) brought, committed or sent to the said gaol, or the custody of the said and or either of them, by virtue of any writ or writs, process or processes, mandate or mandates, warrant or war- rants, by any person or persons whosoever having a lawful authority or power for that purpose : And the said prisoner or prisoners as shall be so brought, committed or sent as afore- said, all the prisoner and prisoners now being and remaining in the said gaol of Newgate, shall and will well and truly, by himself, his deputy or deputies, keep safe and imprisoned, according to the tenor, purport and effect of the warrants, precepts or commandments, writs or authority by virtue of which he, she or they, or any of them, shall be or stand com- mitted, charged or imprisoned, until such prisoner or pri- soners shall be delivered by due course of law, or set free and at liberty with the allowance of the said and or their under-sheriff, or delivered over to the next succeed- ing sheriffs or sheriff upon the expiration of the shrievalty of the said and also that the said his deputy or deputies, agent or agents, servant or servants, shall not nor will permit or suffer any prisoner or prisoners whomso- ever to be dehvered out of the said gaol or prison, unless by due course of law, without a liberate or some other sufficient warrant from the said and or their under- sheriff, deputy or deputies, under seal of the office first had and obtained. And further, that he the said his heirs, executors or administrators, shall and will, at all times hereafter, acquit and discharge or otherwise well and suf- ficiently save, keep harmless, and indemnify the said and and each of them, and their and each of their heirs, executors and administrators, and their and each of their 462 APPENDIX OF FORMS goods and chattels, lands, tenements and estate, of, from and against all and all manner of action and actions, cause and causes of action, suits, payments, damages, expenses, fines, amerciaments, pains, sum and sums of money, penalties, con- tempts, forfeitures, judgments, executions, damages, costs and losses, and of and from all and every other troubles, charges and incumbrances whatsoever, that shall or may happen, arise or grow, or be put unto, or assessed, imposed, laid, rated, set, or taxed upon, or brought against them the said and or either of them, their or either of their heirs, executors or administrators, or their or either of their goods, chattels, lands or tenements, for or by reason of any escape or escapes, or letting any prisoner or prisoners voluntarily or negligently, or otherwise, to go at large or escape, or for or by reason of any act, default, negligence, misbehaviour, misfeazance or misfeazances, abuses, misde- meanors, commission or commissions, omission or omissions, default, delay, or contempt, or for or by reason of any matter, cause or thing that should or ought at any time, in any kind whatsoever, to be done or performed by the said as gaoler or keeper of the said prison of Neivgate, or by any of his deputy or deputies, clerk or clerks, agent or agents, officers or ministers, servant or servants, or for or by reason of his or their not doing, insufficient doing, over-doing, or neglecting his or their duty or duties, or returning, misreturn- ing, or the not due returning or executing any writ or writs, warrant or warrants, precept or precepts, mandate or man- dates, or for or in respect of any matter or cause, or thing whatsoever hereafter to be done, or omitted to be done by him, them, or either of them, concerning the said office of gaoler or keeper of Newgate, or for or in respect of any demands or duties due or payable, by the gaoler of the said gaol, to the judges or clerks of the assize, or clerk of the peace, judges' servants, or other officers or persons whatsoever, or for or by reason of the non-attendance of the said as gaoler or keeper of the said gaol, in any of the courts of judicature, or before any of the judges, justices of the peace and officers having a legal authority to require his attendance, or for or by reason of the non-obsei-vance or non-obeyance of the com- mands of the several courts of our sovereign lord the king, his heirs and successors, before the said and as sheriffs of London and sheriff of Middlesex, held or to be held ; or the not duly executing the said office of keeper of the said gaol of Newgate, or anywise relating thereunto, or for or by reason of any matter or thing whatsoever in anywise concerning the said office of gaoler of Newgate, or the exe- cution thereof, and that without any trouble, costs, charges, damages or expenses therefore to be sustained, incurred or expended by the said and or either of TO OFFICE OF SHERIFF. 403 them, their or either of their heirs, executors or admini- strators, in, about, for, touching or concerning the same : Ayid further, that he the said shall and will from time to time, and at all times from henceforth, during all the time that he shall continue in the said office of gaoler under the said and make and keep a just, exact, true and perfect account or calendar in writing, containing as well all and every the name and names of all and every the pri- soner and prisoners who now is and are, from time to time from henceforth hereafter during the shrievalty of the said and and his the said continuance in the said office under them, shall be committed prisoner or prisoners to the said gaol of Neivgate, as also of all and every the several cause and causes of the commitments and imprison- ments of all and every such person and persons, and the time when committed, and by whom : And liketvise, that the said his agent or agents, shall and will from time to time, and at all times during the shrievalty of the said and deliver unto them the said and and to all and every such person and persons as the said and or either of them, shall from time to time direct, and when and where, and as often from time to time as thereunto required, true and fair copies in writing of any such calendar and calendars : And also that the said shall and will from time to time, and at all times from henceforth, during his continuance in the said office, be truly diligent, attending, assisting and aiding unto the said and and their secondaries, under-sheriff or under-sheriffs, in all affairs and business whatsoever, wherewith the said and is, are or shall be charged or employed, in or about the keeping of the said gaol or prison of Neivgate : And also, that he the said shall and will freely remove, cany and convey all manner of prisoner and prisoners, as well at the time of the sessions of oyer and terminer and gaol delivery for the said city of London and county of Middlesex, as also at all other times ; and to such place or places, and to and before such court and courts, per- son and persons, and at and by such time and times as the said and or their under-sheriff" or under-sheriffs, shall be charged or required, by any legal process or autho- rity, to convey, carry and remove such prisoner or prisoners ; and lay out and expend all monies wfiatsoever as shall be occasioned thereby ; and the same prisoner and prisoners shall, from time to time, during the term aforesaid, safely remove and carry back again to the said gaol of Newgate, un- less he, she or they shall be removed or delivered out of the custody of the said and by due course of law (all such allowance and allowances as shall be made, given, allowed or paid by and from the Exchequer or elsewhere, that 464 APPENDIX OF rOKMS hath or hnve been usually paid by the secondaries of the Poultrij and Gilispur- Street compters, London,to the under- sheriff of Middlesex, or any or either of them, for the removing, carrying or recarrying such prisoner or prisoners, being per- mitted to be had and taken by the said for his own use.) And liheivise that he the said shall and will, at his own proper costs and charges, find and provide, during the time he shall so continue in his said office, under the said and as well such bedding, furniture and other things, for the use of the said gaol of Neivgate, as shall be requisite and necessary for the said and to find and provide, or cause to be found and pro- vided, or as they are by law, custom or usage obliged to find and provide for the same, as also all and every such irons, links, locks, keys, bolts, manacles, handcuffs and other cuffs, and all kinds of fetters, and other utensils and things as shall be necessary to be used, or as there shall be occasion to be made use of in and about the said gaol, for the benefit, security and confinement of the person and persons who now are or shall be, during the shrievalty of the said and and his the said being continued keeper of the said gaol of Neivgate, by the said and committed prisoners to the said gaol, to prevent their making any escapes. Provided ahvaj/s, and it is hereby declared and agreed, by and between the said parties hereto, that it is the true intent and meaning, and agreement of them, and of these presents, that it shall and may be lawful to and for the said and or either of them, at any time or times during their and either of their continuance in the said office or offices, at their, any or either of their free will and plea- sure, and without giving or showing, or being compellable to give or show to him the said or to any other person or persons whatsoever, or to any court or courts at law or other judicature whatsoever, any cause or reason for their or either of their so doing, absolutely to displace or remove the said out of the said place or office of keeper or gaoler of the said gaol o^ Newgate aforesaid, for and during all the residue of the said term as shall be then to come of their shrievalty, any thing in these present indentures contained, or any other matter whatsoever to the contrary thereof in anywise notwithstanding. Afid the said for himself, his heirs, executors and administrators, and every of them, doth further covenant, promise and agree, to and with the said and their executors and administrators, by these presents, that in case of such displacing or removing of him the said as aforesaid, he the said after his being so displaced or removed, shall not nor will act as gaoler of the said gaol of Netvgate in anywise how- soever, during the shrievalty of the said and TO OFFICE OF SHERIFF. 465 And also, that the said his executors or administra- tors, in case of such removal of him the said out of and from the said office, shall and will, within the space of three days then next ensuing, deliver over, or cause to be delivered over, unto the said and or one of them, their or one of their executors, administrators or assigns, or such person or persons as they, or either of them, shall depute, the possession of the said gaol, and all the prisoners therein, and all and all manner of books, papers and other things whatsoever relating or that have related to the said office since the said shall have acted therein by vir- tue of these presents, whole, safe, and in good order, and without alteration, razures, or obliterations to be made therein after such the determination of the will of the said and or either of them, as to the said office of gaoler, pursuant to the said power thereby reserved, In witness, &c. Bond for executing Gaolership. Obligation from R. A. ). None but freeholders have votes (c). Inasmuch as their office is by election, their offices do not determine by the demise of the king {d). Hence also, (i) Dougl. 191. (6) 2 Hale, 53. (y) 4 Inst. 271. (c) 2 Hf P. C. c. 9. s. 10. 2 Inst. (i) 2 Leon. 260. 2 Haw. P. C. 99. 2 Roll. Abr. 121. c. 9. s. 3. ((A Dy. 165, a, (a) 2 Inst. 175. CORONERS. 479 if they prove insufficient to answer the fines and duties incumbent on them, the county, as their superior, shall answer for them (e). In some counties there are only two coroners, in some J^^'^^"""*^'* four, in some six, and by stat. 34 & 35 H. 8. c. 26, in ^^^^^ each county in Wales and in Chester two (/). William the 4th, &c. To the sheriff of greeting : The writ de for asmuch as A. B. esq. late one of the coroners ot your ^^^.^^jg^ county, is deceased, we command you that if it be so, then in your full county, by the assent of the same county, you cause another coroner to be chosen in the place of the said A. B. (who having taken his oath as the manner is) may thereupon do and keep those things which concern the office of a coroner in the said county. And you shall cause such a one to be chosen as best knoweth and in- tendeth that office : and certify unto us his name. Wit- ness ourself at JVeshninster ihe day of in the year of our reign. This writ is called a writ close, because it is close This writ is a folded up, and the wax is put round it. Whereas in wntcose. a writ patent^ though the writ be folded up, yet there issues a label from the same piece of parchment which surrounds the writ, and is sealed at the end of it. How to proceed on the Death of a Coroner. Upon the death of the coroner the first step to be taken by the candidate who wishes to apply for the writ is to have an affidavit of the death of the late coroner, which is to be sworn before a master in Chancery in town, or if in the ccuntiy, before a master extraordinaiy in Chancery, the form of which will be thus : In Chancery. R. R., of in the county of gentleman, maketh oath, and saith, that Robert Broim, esq., late one of the coroners of the said county, departed this life on or about the last past. R. R. Sworn, &.c. To be ingrossed on an affidavit stamped paper. As this affidavit must be positive, and not by way of inform- ation or belief, it will be proper for the person who makes it to see the deceased. The affidavit, when sworn, is annexed to a petition of freeholders, who subscribe the same. (e) 2 Inst. 174. (/) Hal. P. C. 56. 480 OFFICE AND DUTY OF Petition for the writ, to be in- grossed oa stamped paper. The petition where to be lodged. To the Right Honourable the Lord High Chancellor of Great Britain : The humble petition of us, whose names are hereunto subscribed, on behalf of ourselves, and others, freeholders of the county of Shcweth, That R. B. Esq., late one of the coroners for the said county of departed this life on as by the affidavit annexed appears. And that it will be for His Ma- jesty's service, and general good of the said county, to have a proper person elected coroner in the room and stead of the said R. B., deceased. Your petitioners therefore most humbly pray your lord- ship's order, that the cursitor of the said count)'^ do make out a writ de coro7iatore eligendo, for the election of a new coroner for the said county of in the room and stead of the said R. B., deceased. And your petitioners shall ever pray? &c. This petition is to be subscribed by freeholders only — gentlemen of distinction, and some of the commission of the peace. The petition and affidavit is to be lodged with the clerk of the crown in Chancery, in the Rolls-yard, and with whom the agent signs an undertaking prepared agreeable to the writ, engaging, " that due notice shall " be given in all the market-towns of the time and place " for the execution of the writ six days before the execu- " tion." The clerk gets the writ sealed, which is to be delivered to the sheriff. The writ and return is to be filed in tlie Petty-bag office. The sheriff's duty in this respect, on receipt of the writ, is stated supra, p. 224, with the precept and return. When the coroner is sworn mto the office, the business of the day is over ; and the coroner is then in full posses- sion of his office. But he is still to remember to qualify in due time pursuant to the act, by taking the sacrament, and oaths and declaration appointed to be taken by she- riffs and coroners, stated in the Office of Sheriff, supra, p. 15. Of his Authority in taking Inquisitions. When the coroner receives notice of a violent death, ca- sualty; or misadventure, which regularly ought to be given CORONERS. ''01 from the proper or peace-officer of the parish, place or precinct where the body hes dead, he is then to issue his precept or warrant to summon a jury to appear at a par- ticuhir time and place named, to inquire when, how, and by what means the deceased came by his death ; which warrant is directed to the peace-officers of the parish, place or precinct, " where the party lies dead," and to others of the next adjoining parishes, &,c. pursuant to the Stat. 4 Ed. 1. st. 2, called the statute de officio coronatoris, which enacts that the coroner, upon infor- mation, shall go to the place where any be slain, or sud- denly dead or wounded, and shall forthwith command four of the next towns, or five or six, to appear before him in such a place ; and when they are come thither, the coroner, upon the oath of them, shall inqui'-e in this manner, that is, to wit, 1. If they know where the person was slain ; whether it were in any house, field, bed, tavern or company, and who were there. Likewise it is to be inquired who were culpable, either of the act or of the force ; and who were present, either men or women, and of what age soever they be, (if they can speak, or have any discretion.) And how many soever be found culpable by inquisi- tion, in any the manners aforesaid, they shall be taken and delivered to the sheriff, and shall be committed to the gaol ; and such as be founden, and be not culpable, shall be attached until the coming of the justices, and their names shall be written in the coroner's rolls. 2. If it fortune any such man to be slain, who is found in the fields, or in the woods ; first, it is to be inquired, whether he were slain in the same place or not. And if he were brought and laid there, they shall do as much as they can to follow their steps that brought the body thither ; whether he were brought upon a horse or in a cart ; it shall be inquired also, if the dead person were known, or else a stranger, and where he lay the nioht before. And if any be found culpable of the murder, the coro- ner shall immediately go into his house, and shall inquire what goods he hath, and what corn he hath in his grange ; and if he be a freeman, they shall inquire how much land he hath, and what it is worth yearly ; and further, what corn he hath upon the ground ; and when they have thus I I 4H2 Burial. 3 H. 7. c. 1. Coroner by the statute is not restrained from any branch of his power. OlllCE AND DUTY OF inquired upon eveiy thing, they shall cause all the land, corn and goods to be valued in like manner as if they should be sold incontinently ; and thereupon they shall be delivered to the whole tov^^nship, which shall be an- swerable before the justices for all. And likewise of his freehold, how much it is worth yearly, over and above the service due to the lord of the fee, and the land shall remain in the king's hands until the lords of the fee have made fine for it ; and immediately upon these things being inquired, the bodies of such per- sons, being dead or slain, shall be buried. 3. In like manner it is to be inquired of them that be drowned or suddenly dead ; and after such bodies are to be seen, whether they were so drowned, or slain, or strangled, by the sign of a cord tied strait about their necks, or about any of their members, or upon any other hurt found upon their bodies, whereupon they shall pro- ceed in the form aforesaid ; and if they were not slain, then ought the coroner to attach the finders, and all others in company. 4. Also all wounds ought to be viewed, the length? breadth and deepness, and with what weapons, and in what part of the body the wound or hurt is, and how many be culpable, and how many wounds there be, and who gave the wounds. All which things must be inrolled in the roll of the coroners. •5. Also horses, boats, carts, &c. whereby any are slain, that properly are called deodands, shall be valued and delivered unto the towns, as before is said. Every coroner, upon a view of the dead body, shall in- quire of the person that hath done the death or murder ; also of their abettors and consenters, and who were pre- sent when it was done, and the names of the persons so present and found, shall inrol and certify (g). It is obsei-vable that this statute being wholly directory, and in affirmance of the common law, the coroner is not thereby restrained from any branch of his power, nor excused from any part of his duty not mentioned in it which was incident to his office before ; and therefore, though the statute mentions only inquiries of the deaths of persons slain, drowned, or suddenly dead, yet the coro- (g) Jenk. 202. CORONETIS. 403 iier ought also to inquire of the death of those who die in prison (h), to the end that the public may be satisfied whether such persons came to their end by the common course of nature, or by some unlawful violence, or un- reasonable hardships, put on them by those under whose power they were confined. If in an inquisition super visum corporis, the year of our Lord in the caption is in common figures, it shall be quashed. It should be in words at length, or at least in Roman numerals (i). An inquisition of death, by the oaths of lawful men of An inquisitiou the county, is suflicient, without saying they were of the ofilwfurmJu next towns ; so that it appears at what place, and by sufficient. what jurors by name, it was taken, and that such jurors were sworn (k). The qualification of jurors to serve on inquests, and power of the coroner to fine for non-attendance, is now regulated by 6 Geo. 4. {Vid. supra, p. 265.) c.so, s. 52, 53. It is clearly agreed that the inquest shall be taken on [^2J|f^\^^°j^^*' the view of the dead body, although the statute be silent [.•e^,"orthe'' in this matter ; and that an inquest otherwise taken by body. the coroner is void (Z). Therefore, where the body cannot be found, or is so where body „ -, , . T 1 1 r • J.^ „ cannot be lound, putrefied that a view would be of no service, the coroner, ^^ -^ ^^ p^^^^^. without a special commission, cannot take the inquest ; fied that a view but in such cases it shall be taken by justices of the "^""^'^ ^I^^^J^")] peace, or other justices authorized, by the testimony of be'taSn by^ witnesses (m). justices, &c. If the coroner take his inquisition on view of the body after long putrefaction, it is in the discretion of the court of K. B. whether they will receive it or not {n). If a dead body whereon an inquest ought to be If interred be- taken be interred, or suffered to putrefy, before the f«^*^ ^"^^^''• coroner hath viewed it, the gaoler or township shall be amerced (o). And it is indictable as a misdemeanor to buiy the body before, or without sending for the coroner {p). (h) 2 Hawk. P. C. c. 9. s. 21. (m) Vent. 352. Hawk. P. Co. 9. 3 Inst. 52. Staunf. P. C. 51. s. 25. (i) Stran. 261. (w) U. v. Causey, Hil. 3 Geo. 2. (k) 2 Hawk. P. C. c. 9. s. 22. I Bac. Abr. n. 753. 1 Sid. 20-1. Cro. Eliz. 31. (o) Staunf. P. C. 51. (/) 2 Hawk. P. C. c. 9. s. 23. 0') 1 Salk. 377. 1 I 2 484 May in a con- venient time lake up a dead body. Inquisition need not be taken in the very same place. What inquiries he may or may not make. He is to inquire of all circum- stances. c.l. If any person be slain, &c. in the day, and murderers escape. If coroner be remiss in duty. After felony found, coroners to deliver inqui- sitions, inc. c. 13. s. 5. Coroner shall put in writing OFFICE AND DUTY OF Also it hath been resolved, that a coroner may law- fully, within convenient time after the death, take up a dead body out of the grave, in order to view it, not only for the taking of an inquest where none hath been taken before, but also for the taking of a good one where an insufficient one hath been taken before (q) : as the space of 14 days (r). It is jiGt necessary that the inquisition be taken in the very same place where the body was viewed ; and it hath been resolved, that an inquisition taken at D. on the view of the body lying dead at L. may be good (s). The coroner cannot inquire of any accessories after the fact (t) ; but he may make inquiry of the accessories before the fact, and also whether any so guilty have fled for the same (m). A coroner may and ought to inquire of all circum- stances of the party's death, and also of all things which occasioned it (x) ; and therefore it is said, that if it be found by his inquest that the person deceased was killed by a fall from a bridge into a river, and that the bridge was out of repair by the default of the inhabitants of such a town, and that those inhabitants are bound to repair it, the township shall be amerced (?/). By 3 H. 7. If any person be slain or murdered in the day, and the murderer escape untaken, the township where the said deed is so done shall be amerced for the said escape ; and that the coroner have authority to inquire thereof upon the view of the body. And that if any coroner be remiss, and make not inquisitions upon the view of the body dead, he shall forfeit for every default 1005. That after the felony found, the coroners deliver their inquisition before the justices of the next gaol delivery, in the shire where the inquisition is taken ; the same justices to proceed against such murderer if they be in gaol, or else the same justices to put the same inquisition afore the king in his bench : and if any coroner do not in such manner certify his inquisition, he shall forfeit 1005. By the 1 & 2 Ph. & M. Every coroner upon any inquisition before him found, (9) Staunf. P.C. 52. Bro.Cor.167. 0) 2 Hawk. P. C. c. 9. s. 23. Carth. 72. (s) 2 Hawk. c. 9. s. 2.5. Latch, 166. Poph. 209. (0 Moor, 20. pi, 95. (u) 2 Hawk. c. 9. s. 27. (x) Aleyn, 51. (u) 2 Hawk. P. C. c. 9. s. 28. CORONirRS. *1U5 whereby any person shall be indicted for murder or man- the effect of the slaughter, or as accessory before the offence committed, ^^'^1"*^^^^^^'^°' shall put in writing the effect of the evidence given to the J^Uines^es"^^"^ jury before him, being material ; and shall bind over the witnesses by recognizance or obligation to the next gaol delivery to be holden for the county, city, or town corpo- rate where the trial shall be, then and there to give evi- dence against the party so indicted at the time of trial ; and shall certify as well the same evidence as such recogni - zance, bond or bonds, in writing, as he shall take ; together with the inquisition or indictment before him taken and found, at or before the time of his said trial, on pain of being fined by the court, and estreat the same. Sir Matthew Hale says, the difference of penning this Hale's distinc- act, touching the examination taken by the justices of t'O" touching the peace and the coroner, is observable : the justices of taken t)v justices the peace are to put into writing " the information and coroner. " against the felon of the fact and circumstances" thereof, "or so much thereof" as shall be "material to " prove the felony ; but the coroner is to put into writing Coroner to put " the effect of the evidence given to the jury before him, in writing " being material," without saying, "so much as is ma- e^"^ence. " terial to prove the felony," but the whole evidence given, whether to prove or disprove the felony ; and all this evidence is to be upon oath, before the coroner's inquest, whether it make for or against the prisoner {z). So that I do conceive the coroner's inquest ought in Coroner's in- all cases to hear the evidence upon oath, " as well that 3||fgyijg[jjg'^ which maketh for," as " that which maketh against the o^oath!'^''^ prisoner ;" and the whole evidence ought to be returned with the inquisition (a). * A party who had no interest in the subject of the in- quest, and not called on to give evidence, having been put out of the room after a refusal to depart, held not entitled to maintain an action of trespass against the coroner (b). And a party publishing the proceedings before the coroner previous to the trial, with comments, was held liable to a criminal information, although no malicious motive shown, and the statements correct (c). A presentment or inquisition found by the grand jury Presentment or at the general sessions of oyer and terminer for the Ji"i"i*iiion found county of Yorh, was quashed. In this case the coroner juiy^'&c.'^ r-) 2 Hal. P. C. 61. (/>) Garrett t-. Fcrrand, G 15. & Cr. Gil. (<,) lb. 62. (c) R. V. Fleet, 1 B. .S: Aid. 371*. 1 I 3 486 quashed, though the coroner did not take one. No power to take any indict- ment except of death. c. 7. Misadventure. Prisoner. "Who jury are to be. If death happen ill K.B. Ifprisoner die a natural death. OrnCE AND DUTY OF had not taken any inquisition at all upon the death, so that the lord of the manor, finding himself likely to lose his deodand, had made this application to the assizes, where the grand jury found the inquisition or presentment, which was afterwards removed to the K. B. by certio- rari, condemning secret inquests and offices (t?). This is an office of intitling, and therefore ought to be publicly and openly found (e). According to some opinions, a coroner, ex officio, hath no power to take any indictment, except of the death of a man (/). By 1 H. 8. " If any coroner shall not endeavour himself to do bis office upon any person dead by misadventure he shall forfeit 40 s. Persons dying in Gaol. The coroner ought also to inquire of the death of all persons who die in prison, that it be known whether they died by violence or any unreasonable hardships ; for if a prisoner, by the duress of the gaoler, comes to an un- timely death, it is murder in the gaoler, and the law im- plies malice in respect of the cruelty {g). And this inquest upon prisoners ought to consist of a party jury, that is, six of the prisoners (if so many there be, and six of the next vill or parish, not prisoners (A). If a death happen in the King's Bench prison, the clerk of the crown, who is the coroner for that court, is to view the body(^). If a prisoner in gaol die a natural death, yet regularly, the gaoler ought to send for the coroner to inquire, be- cause it may be possibly presumed that the prisoner died by the ill-usage of the gaoler (k). Treasure-trove. There seems to be no doubt but that the coroner may and ought to inquire of treasure-trove ; concerning which it is enacted by 4 Ed. 1. de officio coronatoris, " That a coroner, being certified by the king's bailiffs, or " other honest men of the county, shall go to the places " where treasure is said to be found." (d) Rex I). Killinghall, 1 Burr. 17. {g) 3 Inst. 52. 91. 4 Inst. 196, 7, 8. (h) Umfrev. 212, 213. (e) Burr. 19. (0 8E.2. Ck)ron. 321. 2 Hal. (/)Staunf.P. C.51. 4 Inst. 271. P. C. .58. 2 Inst. 147. Hal. P. C. 05. {h) 2 Hale, P. C. c, 57. CORONERS. 487 And it is further enacted, " A coroner ought also to inquire of treasure that is " found, who were the finders, and hkewise who is sus- " pected thereof." And that may well be perceived where one liveth riot- ously, haunting taverns, and hath done so of long time ; hereupon he may be attached for this suspicion by four or six or more pledges, if he may be found (/). It is also said a coroner may inquire of royal fishes, as sturgeons, whales, &c. (m). With respect to Appeals for Felony. The 59 Geo. 3, declaring that appeals of murder, trea- Appeals foi son, felony and other offences, and the manner of pro- "("i^^'';iJd JJh"; ceeding thereon, have been fomid oppressive, and the offences, as also trial by battel in any suit a mode of trial unfit to be trial by battel in used, enacts that all such shall be abolished. It is there- ^^^^^]^' ^''°' fore no longer necessary to enter into the practice for- 59 Geo. 3. c. 46. merly prevailing in the county-court upon bills of appeal. Of traversing and quashing Inquisitions. The law gives such credit to an inquisition of death Refusal to take found before the coroner, that anciently the judges would ^ verdict ac- not receive a verdict acquittmg a prisoner of the death of ^oner"unk?s"it a man found against him by the coroner's inquest, unless be found who the jury finding such acquittal had also found what other did the fact, now person did the fact, or by what other means the party ^^1°?*^ / o r 11,11 •- J u xi ' / 13 Ed. 4. c. 3. came to his death, because it appeared by the coroner s pi 7, view on record that a person was killed : a doctrine now exploded (11). It is at present commonly a business of form ; and if the fact be not known, the jurors usually say that it was done by persons unknown (0). Also it has been formerly holden, that if a person were If a person were slain, and upon the coroner's inquest super visum cor- slam, and it .'. ip i.iiTonjii 1 TO were found that IJoris, it were found that 1. *b. tied, though 1. b. were j, 5_ fled, he afterward acquitted both of the felony and flight, yet he forfeited his forfeited his goods ; for the coroner's inquest is so solemn, p°^? '' ^^]^ '|^'^ that it is not traversable ; also, when the goods are once lawfully vested in the king by that inquest, the property (0 Haw. C. P. 115. (n) 2 Haw. P. C. c. 9. s. 33. (m) Staunf. P. C. 51. Staunf. 181. (o) 2 Hal. P. C, 301. 1 I 4 488 OFFICE AND DUTY OF in them cannot be devested (p). But Hawkins (g) says, this opinion is harsh and unreasonable, that a man shall be liable to forfeit all his goods, which may perhaps be all that he is worth, by an inquest taken in his absence, without either hearing him, or giving him an opportunity of defending himself. Coroner's record The coroncr's record of an abjuration, or of the confes- of an abjuration, ^■^^^ of breakiup; prison, or of the confession of a felony or 01 a conit'S- , o i 7 _ j sion of felony, by an approver, estops the party not only traversmg the confession, but also from alleging that it was taken from him by duress, &c. ; and it is said, that if the party plead that he is not the same person, he shall be concluded by the coroner's recording that he is the same person ; yet in these cases it seems that the judge may, in discretion, to inform his conscience, take an inquiry, " from the the people living next the place," of the whole circum- stances of the matter (/-). Where the Jf [i be found by a coroner's inquest that a murder rraverse^the ^^^ Committed in such a town, and that the murderer inquisition. cscapcd untaken, the township cannot traverse such escape, because it makes them only liable to an amerce- ment, et de minimis non curat lex (s). Also it is strongly holden in some books, that an in- quest of self-murder, found before a coroner, cannot be traversed ; but the contrary opinion being also holden by books of as great authority, and seeming also to be more agreeable to the general tenor of the law in other cases, it seems to be the better opinion, that such inquest being moved into the King's Bench by certiorari, may be there traversed by the executor or administrator of the person deceased ; or in case the coroner's inquest find him to be a lunatic, by the king or the lord of the manor {t). Rctvun of The court will not oblige the coroner to return the de- depositions of position taken upon an inquisition of felo de se, if there jeiu de se. ^^ nothing depending before them to make it necessary (u). Melius hiqui- If a coroner appear to have been corrupt in taking an inquest, it seems that a melius inquirendum shall go to special commissioners, who shall proceed not on view, but on testimony, and the coroner shall have nothing to (p) 5 Co. 109. 2 Inst. M7. (0 2 Lev. 141. 2 Haw. P. C. (q) Vol. 2. c. 9. s. 54. c. y. s. 55. Skin. 45. pi. 16. Bro, ()•) 2 Ilaw.c. 9. s. 52, andautho- Coro. 151. 2 Lev. 141. Freem. ritics cited. Eep. 443. pi. 608. (s) 2 Haw. P, C. c. 9. s. 53. {n) 2 Sir. 1073, rend II in. rORONERS. 409 do with such inquest (x). But where his Inquest is If coroner's quashed for want of form only, he shall take a new one, '"J^a^lied ^ in like manner as if he had taken none before (y). The coroner's inquest found A. felo de se, his executors A verdict of prayed that they might traverse it, which was granted by J^^° '^^ *^ '^ Male, Twisdcn and Wild, silente Raiiisford, for the co- r„„a,„ ^^c;j ^^^^ roner's inquest finding felo dc se is ti'aversable, though fugam fecit is not {z). The reason why an inquisition which finds 11 fug am. fecit T^^^ reason why is not traversable, is, because all the parties that were nofTiaversaWe. present at the death of the party are bound to attend the coroner's inquest, and their not appearing there is a fllying in law, and cannot be contradicted ; but that reason does not hold in a felo de se (a). An inquisition before the coroner, taken s?//jer visum &o felo de se a.i\d corjwris, that finds the person was felo de se, et non l^^'glJH'"^"^ compos mentis, may be traversed ; but the fugam fecit cannot (b). If a coroner take an inquisition su2)er visum corporis, When co-oner (as upon a felo de se), and that is sent into the King's n^^y take a new Bench and quashed, the coroner may take a new inqui- '"^' * "' sition super visum corporis (c). But upon a surmise, not upon a that the coroner ought to have found him felo de se, and surmise only. hath not, there shall go no melius inquirendum directed to the sheriff. And Hale says, I have known it often denied, and it was held, it was within the restraint of the Stat. 28 Ed. 3. c. 9. Where the Act of one Coroner shall he as effectual as if done by all. Wherever coroners are authorized to act as judges, as in the taking of an inquisition of death, or receiving an appeal of felony. Sec. the act of any one of them who first proceeds in the matter is of the same force as if all had joined in it (d); but it is said, that after such pro- ceeding by any one of them, the act of any other will be void (e). Also it is certain, that where coroners are empowered to act only ministerially, as in the execution (t) 3 Mod. 80. 100. 238. Salk. (a) Freem. 419. pi. 556. 190. Cro. Eliz. 371. (h\ Vent. 278. (y) 2 Roll. Abr. 32. pi. 6. Salk. (c) 2 Hal. P. C. 69. 190. (f/) 2 Hal. P. C. 50. cites Stauu- (s) Hex I'. Aldehliain, 2 Lev. fbnl, P. C. 53, a. 152. (e) 2 Hal. P. C. 59. 490 One coroner may execute writ, but all must return. Cannot take an inquisition by deputy. In the case of process to coro- ners upon dis- ability of sheriff. If sheriff be sued. If above two, and one die, the others may execute writ. But if one only survive. Where sheriff and coroners are all challenred. The same chal- lenges made to the sheriH' may be made to C. 10. No coroner to demand fee. OFFICE AND DUTY OF of a process directed to them, upon the default or in- capacity of the sheriff, all their acts will be void wherein they do not all join (/). One coroner may execute the writ, as in the case of an exigent : but if there be more coroners than one for the county, the return must be in the name of all {g). The taking of an inquisition cannot be done by deputy, for by Stat. 14 JE. 1, the coroner is to view the body, and take the inquisition in his own person (k). In the case of process to coroners, upon any disability in the sheriff, the sheriff is no longer considered as an officer of the court in that suit. And the coroners may do all such lawful acts as the sheriff himself might have done, and he may take the posse comitatus (i). If the sheriff be sued, the writ is to be directed to the coroners. If there be above two coroners in a county, and a writ be directed to the coroners, though one die, the others may execute ; but if one only survive, he can neither execute nor return the writ till another be made (k). Where the sheriff and coroners of particular places and liberties have been all challenged, in all cases elisors have not been appointed, but venires have been directed to the sheriff of the county at large, to summon a jury from the next adjacent visne; and two elisors, at least, ought to be appointed {I). The same challenges that may be made to the sheriff may also be made to the coroners; in which case if all the coroners be challenged, the venire may then be awarded to elisors, who are always chosen and appointed by the court, by rule, to return the jury. Of Fees that he may lawfully take. By stat. West. 1. it is enacted. That no coroner demand any thing of any man to do his office, upon pain of great forfeiture to the king; which was made in affirmance of the common Jaw (rw). (/; Staunf. P. C. 53, a. Hal. (i) Hob. 85. P. C. 58. (/c) 2 Hal. P. C. 5G. Cro. Jac. (g) 2 Hal. P. C. 5G. 383. F. N. B. 1G3. (/i) Cromp. Just. 227, a. 2 Hal. (/) Bendl. 23. Dy. 3G7. P. C. 68, 60. Hawk. b. 2. c. 9. (m) 2 Inst. 176. S.24. R.v. Ferrand,3B6cAld.260. CORONERS. 491 But by 3 H. 7, it is enacted, c. i. That a coroner have for his fee, upon every inquisition Coroner may taken upon the vmu of a body slain, 13 s. ^d. of " the ;°7„'' i'/j-'^ " goods and chattels of the slayer or murderer," if he have taken on view any goods ; and if he have no goods, of such amerce- of person slain. ments as shall fortune any township to be amerced for the 3 H. 7. c. 1. escape of the murderer, &c. But coroners endeavouring to extend this statute to persons slam by misadventure, it was enacted by 1 H. 8. c. 7. That upon a request made to a coroner to come and On request inquire upon the view of any person slain, drowned or "^ade to coroner otherwise dead by misfortune, the said coroner shall dili- ^"g'^^j^Ytrod*^ gently do his office, without taking any thing therefor, j^^ ^j^j^jj ^Jq his upon pain to every coroner that will not endeavour himself office without to do his office (as aforesaid), or that taketh any thing for fee, doing his office, upon every person dead by misadventure, for every time 40 s. To the intent, however, that coroners may be encouraged to execute their office with diligence and integrity, it is enacted, by stat. 25 Geo. 2. c 29. That for every inquisition, not taken upon the view of Fees and ex- a body dying in a gaol or prison, which shall be duly taken penses allowed in England by any coroner in any township or place con- '° coroners. tributing to the rates directed to be levied by 12 Geo. 2, c. 29, he shall have 20 . 1 1 1 1 1 n 11-1 a lord otfran- nolders or any county, the lord or lords or such liberty or chise, &c. they franchise, or the person or persons entitled to the nomination shall appoint or appointment of any such coroner, shall, upon notice of ^ i^ew one. such judgment of amoval, nominate and appoint another ^ person to be coroner in his stead. This statute is only in furtherance of the powers which before existed for their removal. Neglect means not merely wilful neglect, as where one coroner gets another to perform the office for him, by which the latter is called out of his own district, and the inhabitants of one district may be thereby deprived of their coroner. Confinement in prison for twelve months held a suffi- cient ground for removal, though the duties had been performed by another coroner for him during his ab- sence (e). So by his removal into an inconvenient part of the kingdom. The practice is to issue both the writ de coronatore exo- nerando, and that de coronatore eligendo at the same time, though the former must be executed first ; and no notice need be given of the issuing the writ to the party re- moved. He may have a commission to inquire whether the cause assigned for his removal be true, but he cannot traverse it (/). Of sudden violent deaths which are all within the Coroner's Office to inquire, and Inquisitions. Sudden violent deaths are of these kinds : 1. By the vi- of sudden sitation of God : 2. JBy misfortune, where no other had deaths. a hand in it ; as if a man fall from a horse or cart : 3. By his own hand, as felo de se : 4. By the hand of another man, where the ofiender is not known. 5. By the hand (e) Ex parte Parnell, 1 Jac. & (/) lb. 454. Reg.1176. Staunf. Walk. Rep. 451. P. C. 49. F. N. B. 164. In private families. Dying sud- denly. By visitation of God. 3Ii. 7. c. I. If inquisition find per int'or tiDiiam. 4 Ed. 1. 4f)(> OFFICE AND DUTY OF of another, where he is known, whether by murder, manslaughter, se defendendOf or per infortunium, (g). Coroners are not to obtrude themselves into private families, where there is no pretence for supposing that the deceased died otherwise than by a natural death (k). 1. The dying suddenly is not to be understood of a fever, apoplexy, or other visitation of God, for then the coroner might be sent for in every case (i). If the inquisition find that he died bi/ the visitation of God, there is no more to be done, only the inquisition, together with the examinations, are to be returned to the next gaol deliveiy. 2. If the inquest find the death per infortunium simply, as a, fall, &c. then the coroner is to take the examination, and return the same, with the inquisition, to the next gaol delivery, and to inquire of the deodand, and the value, and in whose hands, and to seize and deliver the same to the township, to be answerable for the same to the king. But if drowned. But if the person w^ere drowned in a pit, the coroner shall command the vill to stop it ; and if it be not done, the vill shall be amerced in eyre, or before justices of gaol delivery (k). In no case can the coroner set any fine or amercement, as for non-appearance of juries or constables, escapes of townships, &,c. but presents it to the next gaol delivery, and they impose the fine {I). 3. If the inquest find a man /eZo de se, who is one that puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death : as, if attempting to kill another, he runs upon his anta- gonist's sword ; or, shooting at another, the gun bursts and kills himself {m) ; they ought to find the special matter, and also what goods and chattels he had, of what value, and seize and deliver the same to the towTiship, to be answerable to the king or his almoner, or the lord of the franchise to whom they belong, and shall bmd over the first finder of the body to the next gaol delivery (n). 4. If the party be slain, and the felon is not known, they are to find their inquisition accordingly, and shall bind In no case can the coroner set fine. If inquest find a man /Wof/e se, what the)' ought also to find. Ifparty be slain, and felon not known. (g) 2 Hal. P. C. G2. (/i) 11 East, 231. (i) Umfr. 208. {h) 8 E.2. CoroD. 41G. (/) 2 Hal. P. C. 62. (w) 1 Haw. P. C. 68. Com. 189. («) 2 Hal. P. C. 02. 4 Black. CORONERS. over the first finder of the body to the next gaol dehvery, and return his examinations, together with his inquisi- tion (o). 5. But if the person was slain, and the party that did it was known, and the inquisition found himself guilty of the death, or that he died by his hand, there were these proceedings : namely. The inquest were also to inquire of all that were present, aiding and abetting. They shall also inquire of all accessories before the fact ; but they cannot inquire of accessories after. If they find him guilty as principal or accessory before the fact, they are also to inquire whether he fled for the same : if the inqusition find that he fled, it is a forfeiture of his goods: but they cannot be seized before he be convicted of the felony ( j)). If the persons that are found guilty by the inquest be taken, the coroner may and must commit them to the sheriff', and he is to send them to the gaol ; but if they be not found, he is not to proceed to outlawry, but return his inquisition to the next gaol delivery, and the justices of gaol delivery are to proceed against the offenders, if in gaol ; if not, then to certify the inquisition into the K. B., and there process of outlawry to go against them, upon that inquisition {rf). By 7 Geo. 4. it is enacted, " That every coroner upon any inquisition before him taken, whereby any person shall be indicted for manslangh- ter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material ; and shall have authority to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being acces- sory to murder, to appear at the next court of oyer and terminer, or gaol delivery, or superior criminal court of a county palatine or great sessions, at which the trial is to be, then and there to prosecute, or give evidence against the party charged, and every such coroner shall certify and subscribe the same evidence and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper officer of the court in which the trial is to be, at the opening of the court." 497 1 & 2 P. & M. c. 13. But if he was slain and per- son known. If guilty as principal or accessory. 1 R. 3. c. 3. If persons be found guilty, coroner to commit, &c. if not found, to certify the inquisition. 4 Ed. 1. 3 H. 7. c. 1. c. 64. s. 4. (<)) 2 Hal. P. C. 63. {p) li. K K (7) Ih. 64. 49B s. 5. s. 6. Bail. What is felo de se. If he lose me- mory, &c. not felo de se. If he gives a mortal stroke while non compos. Not every melancholy distemper makes non compos. Lunatic. If death within year and day. It must be vo- luntarily, and with an intent. OFFICE AND DUTY OF Coroners offending against the act may be fined by the court as it shall think fit : and the provisions declared to apply to coroners, not only of counties at large, but of all other jurisdictions. Upon the depositions removed by certiorari to the coroner, the court allowed bail for manslaughter to be put in before a magistrate : the rule to show cause being served on the coroner and the next of kin (r). Of Crimes. 1. Felonia de se', Or suicide, is where a man, of the age of discretion, and compos mentis, kills himself, by stabbing, poison, or any other way (s). If he lose his memory by sickness, infirmity or acci- dent, and kills himself, he is not felo de se ; neither can he be said to commit murder upon himself or any other. If a man gives himself a mortal stroke while he is non compos mentis, and recovers his understanding, and then dies, he is not felo de se ; for though the death complete the homicide, the act must be that which makes the offence. It is not every melancholy or hypochondriacal distemper that denominates a man no7i compos, for there are few who commit this offence but are under such infirmities ; but it must be such an alienation of mind that renders them to be madmen or frantic, or destitute of the use of reason. A lunatic killing himself in the fit of lunacy is not felo de se : but if he kills himself in a lucid interval, he is a. felo de se (t). If a man voluntarily give himself a mortal wound, and die within a year and a day of that wound, he is felo de se, and he cannot purge the crime nor the forfeiture inflicted by the law by his repenting what he had done(M). It must be simply voluntary, and with an intent to kill himself. If ^., to prevent a gangrene beginning in his hand, doth, without any advice, cut off his hand, by which he dies, he is not thereby felo de se ; for though it was a voluntary act, yet it was not with an intent to kill himself (.r). (r) B. V. Jones, 1 B. & Aid. 209. (s) 1 Hal. P. C. 411. (0 lb. 412. (u) 1 Hal. P. C. 411, cites 8 E. 4.4. (r) 1 Hal. P. C. 412. Forfeiture of feto (le se. c. 52. Idiot, or infant, or lunalic. conoNERS. 499 The forfeiture of felo de se is of goods and chattels only iy). He was formerly to be buried in the highway, with a stake driven through his body {z). But now, by 4 Geo. 4, he shall be interred privately in burial ground within twenty-four hours after the finding of the inquisi- tion, and between the hours of nine and twelve at night, without any performance of the rites of Christian burial. If an idiot, or an infant under 14, or lunatic during his lunacy, or if one distracted or losing his memory, through sickness, grief, infirmity, or other accident, kill himself, it is not felony ; such a one can incur no forfeiture ; for though death complete the homicide, the act must be that which makes the offence («). 2. Petit Treason. Petit treason, according the statute, may happen three Petit treason. ways : 1. By a servant killing his master : 2. A wife her 25 Ed. 3. c. 2. husband : 3. Or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. The killing of a master or husband is not petit treason unless it be such a killing as in case of another person would be murder ; and therefore upon an indictment of petit treason for a servant killing his master, if, upon the circumstances of the case, the killing appear to be upon a sudden falling out, and the servant upon a sudden pro- vocation kill his master, which, in case it had been been between other persons, had been only manslaughter, the jury may acquit hmi of petit treason, and find him guilty of manslaughter {b). Aiders, abettors and procurers are within the act. Aiders, &c where the oflence is petit treason in the principal: but in all these cases, if the killing be of a sudden falling- out, or a se defendendo, &c. it is not petit treason (c). Killing the wife of the master is within the statute, for he is servant to both {d ). A clergyman is understood to owe canonical obedience clergyman to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suf fragan, or diocesan bishop : therefore to kill any of these is lietit treason (e). Killing of a master or husband. Killing suddenly. Killing wife of master. (v) 1 Hal. p. C. 413. 4 Black Com. 190. (s) 4 Bl. Com. 190. (,() I Hal. P. C. 30. 3 Inst. 55. (ft) 1 Hal. P. C. 378. (c) Crompt. 19, 20. (rf) Plow. 80, b. (p) I Hal. P. C. 3S. K K 2 500 CommanJing a stranger to heat liusbandj master, &c. Murder, what. Homicide. Lunatics, infants. By poisoning, Alien, Jew, &c. Bastards. Killing must be with malice. OFFICE AND DUTY OF Commanding- a stranger to beat the husband, master or superior, and the stranger, in his or her presence, doth accordingly beat him, of which he dies, this is petit treason in the wife, servant or ecclesiastic, and murder in the stranger (/). 3. Of Murder. Murder is defined to be, when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied {g). Homicide comprehends murder, manslaughter, death by chance, se defendendo, or for justifiable cause (^). It must be committed by a person of sound memoiy and discretion : for lunatics or infants are incapable of committing any crime, unless in such cases where they show a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil. Next, it happens when a person of such sound discre- tion unlawfully killeth. The vmlawfulness arises from the killing without wanant or excuse : and there must be an actual killing to constitute murder (i). It may be by poisoning, striking, starving or drowning, and a thousand other forms of death by which human nature may be overcome. To kill an alien, a Jew, or an outlaw, who are all under the king's peace or protection, is as much murder as to kill the most regular-born Englishman (except he be an alien in time of war (k). Though he be denizen, attainted of high treason, or felony, or abjured or convicted, and under execution for another crime (I). As to killing bastard children, see 21 Jac. 1. c. 27, and as to the punishment of concealing the birth, 9 Geo. 4. c. 31. s. 14. To kill a child in the womb is not murder (m). The killing must be committed with malice afore- thought to make it the crime of murder, which may be either express or implied in law (n). (/) 1 Hale, 380. Cromp. 20, b. (a^ 3 Inst, 47, (/i) Hal. P. C. 43. (i) 1 Hale, 425. Plowd. 475. (k) 3 Inst. 50. (/) 3 Inst. 50. 3 Mod. 68. (*n) 3 Inst. 150. Hale, 53. («) Fost. C. L. 2GC. CORONERS. 501 Malice aforethought is, when the fact is attended with such circumstances as are the ordinary syniptons of a wicked, depraved, maUgnant spirit, or an action flowing from a wicked and corrupt motive ; a thing done malo animo, mala conscientid (o). Express^ when one with a sedate dehberate mind, and formed design, doth kill another : which formed design is evidenced with external circumstances discovering that inward intention : as, lying in wait, antecedent menaces, former grudges, and concerted schemes to do hira some bodily harm (p). This takes in the case of deliberate duelling, where both parties meet with an intent to mur- der, and therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also ( q). If upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder, by express malice (r). Neither shall he be guilty of a less crime who kills another in consequence of such a wilful act as shows him to be an enemy to all mankind in general, as going deliberately and with an intent to do mischief (s), upon a horse used to strike, or coolly discharging a gun among a multitude of people {t). So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not, for this is universal malice. And if two or more come together to do an unlawful act against the king's peace, of which the probable conse- quence might be bloodshed ; as, to beat a man, to com- mit a riot, or to rob a park ; and one of them kills a man ; it is murder in all, because of the unlawful act (m). 4. Of Implied Malice. Also in many cases where no malice is expressed, the implied malice. law will imply it ; as where a man wilfully poisons an- other : in such a deliberate act, the law presumes malice, though no particular enmity can be proved {x). And if Killing sud- a man kills another suddenly, without any, or without denly. a considerable provocation, the law implies malice. Malice afore- thought. Murder express. Duelling. Sudden pro- vocation. Going with a horse used to strike- Gun. Resolves to kill the next man he meets. To do an unlawful act. (o) Fost. C. L. 256. (p) 1 Hal. P. C. 451. ( . ' differs trom this, that misadventure always happens in consequence homicide ex- of a lawful act, but this species of manslaughter in con- cusable by sequence of an unlawful one ; as, if two persons play at misadventure. (e) 1 Haw. 82. (/i) 1 Hal. P. C. 486. (/) Kelynge, 135. (i) T. Ray. 212. {g) Fost. Cr. Law, 296. K K 4 504 If an act done lawful in itself but in an un- lawful manner. If in London. Involuntary killing happens in consequence of an unlawful act. Stabbing another. s. 8. Stat, construed favourably. OFFICE AND DUTY OF sword and buckler, unless by the king's command, and one of them kills the other, this is manslaughter; because the original act was unlawful : but it is not murder, for the one had no intent to do the other any personal mis- chief'(A). So where a person does an act lawful in itself, but in an unlawful mamier, and without due caution and circumspection ; as when a workman flings down a stone or piece of timber into the street, and kills a man, this may be either misadventure, manslaughter or mur- der, according to the circumstances under which the ori- ginal act was done ; if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only ; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warn- ing (Z), and murder, if he knows of their passing, and gives no warning at all ; for then it is malice against all mankind (m). And, in general, when an involuntaiy kill- ing happens in consequence of an unlawful act, it will be either murder or manslaughter, according to the nature of the act which occasioned it. If it be in pro- secution of a felonious intent, or in its consequences naturally tended to bloodshed, it will be murder ; but if no more was intended than a mere civil trespass, it will only amount to manslaughter (w). 6. Of Homicide on Stat. 1 Jac. 1. c. 8. But there is one species of manslaughter which is pu- nished as murder, the offence of mortally stabbing an- other, though done upon sudden provocation. For by Stat. 1 Jac. 1. when one thrusts or stabs another not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice afore- thought (o). The benignity of the law has construed the statute so favourably on behalf of the subject, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing as it did at the common law {p). Thus, upon the construction of this statute, it (A:) 3 Inst. 56. (/) Kel. 40. (m) 3 Inst. 57. (»i) Fost. 2.5«. iHaw. r.C. 81. (o) Foster, 300. And see now 9 Geo. 4. c. 31. 00 lb. 299. CORONERS. 505 has been doubted whether, if the deceased had struck at all before the mortal blow given, this does not take it out of the statute, though in the preceding quarrel the stabber had given the first blow ; and it seems to be the better opinion that this is not within the statute (^). Also it hath been resolved, that the killing a man by throwino- a hammer, or other weapon, is not within the statute : and whether a shot with a pistol be so or not is doubted (r). But if the party slain had a cudgel in his hand, and had thrown a pot or a bottle, or discharged a pistol, at the party stabbing, this is a sufficient having a weapon drawn on his side within the words of the statute (s). A husband stabbing an adulterer is not within the act ; nor a man assaulted by thieves in his house ; nor if one concealed in a closet, but no thief, is stabbed, on a sudden outcry of thieves in the night-time (t). Excusable homicide is of two sorts, either per infor- tunium by misadventure, or se defendendo. 7. Homicide per infortunium. Homicide per infortunium or misadventure is, where Homicide per a man, doing a lawful act, without any intention of hurt, ^iifortunium or unfortunately kills another ; as where a man is at work ^^"^ ^^" '"^' with a hatchet, and the head thereof flies off and kills a stander-by ; or where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills aman(M); for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a Parent cor- master his apprentice or scholar, or an officer punisliing J^^g^"^ ^^ " a criminal, and happens to occasion his death, it is only misadventure ; for the act of correction was lawful : but if he exceeds the bounds of moderation, either in the Moderate manner, the instrument, or the quantity of punishment, correction. and death ensues, it is manslaughter at least, and in some cases (according to circumstances) murder ; for the act of immoderate correction is unlawful {x). To whip another's horse, whereby he runs over a child and kills him, is held to be accidental in the rider, for he has done nothing unlawful, but manslaughter in the per- son who whipped him {y). (q) Foster, 301, 2 Haw. 77. (u) 1 Haw. 73, 74. (r) 1 Hal. P. C. 470. Fost. 300. (,i) 1 Hal. P. C. 473, 474. (s) 1 Haw. 77. (v) 1 Haw. 73. (f) Fost. 298. 506 OFFICE AND DUTY OF Idle, danger- In general, if death ensues in consequence of an idle, "awfu"! ort' dangerous and unlawful sport, as shooting or casting Cock-throwing, stones in a town, or cock-throwing ; in these and similar cases the slayer is guilty of manslaughter, and not mis- adventure only, for these are unlawful acts {y). 8. Homicide se defendendo. Chance-medley. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable. This species of self-defence must be distinguished from that just now mentioned, as calculated to the perpetration of a capital crime, which is not only matter of excuse, but of justification. But the self-defence we are now speaking of is that whereby a man may protect liimself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or, as some write, chaud-medley ; the former of which sig- nifies a casual affray, the latter an affray in the heat of blood or passion; both of them pretty much of the same import ; but the former is in common speech too often erroneously applied to any manner of homicide by mis- 24 H. 8. c. 5. adventure ; whereas it appears that it is properly applied to such a killing as happens in self-defence upon a sud- den rencounter (a). To excuse homicide upon the plea of self-defence it must appear that the slayer had no other possible means of escaping from his assailant. Homicide is excusable when done upon inevitable ne- cessity, as for one's own defence ; for if a man be assaulted, and retreats to a wall, and then in his defence kills the pursuer, it is not murder nor manslaughter (b). If a man strikes the assailant before retreat, and then kills him in his own defence, this is manslaughter (c). 9. Chance- 3Iedley and Manslaughter, The true criterion between chance-medley and man- slaughter is this : when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter ; but if the slayer hath not (s) 1 Haw. 74. (h) Hal. P. C. 41. 2 Inst, 315 (a) 3 Inst. 55. 57. Foster, 3 Inst. 56. 275. (c) Hal P. C. 42. CORONERS. 607 begun to fight, or (having begun) endeavours to decUne any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence (d). It is only an act malum in se, not barely malum prohi- bitum, that prevents the death being chance-medley ; thus, an unqualified person shooting at game falls under the same rule as if qualified (e). And as the manner of defence, so is the time to be con- As the manner sidered ; for if the person assaulted does not fall upon the ?^ defence, so ,-,, ,, '^ re • 1 1 • • IS the time. aggressor till the aiiray is over, or when he is running away, this is revenge, and not defence. If two persons, A. and S., agree to fight a duel, and Duel. A. gives the first onset, and JB. retreats as far as he can, and then kills A., this is murder (/). But if A., upon Sudden quarrel. a sudden quarrel, assaults J3. first, and upon^.'s return- ing the assault, A. really and bond jide flies, and, being driven to the wall, turns again upon B. and kills him, this may be se defendendo (g), though others have thought this opinion too favourable (h). Under this excuse of self-defence the principal civil and Master and natural relations are comprehended ; therefore master and servant parent servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respect- ively, are excused ; the act of the relation assisting being construed the same as the act of the party himself (i). If death ensues from an accident, happening at innocent Death by ac- and allowable recreations, as cudo;els, foils, wrestling;, en- ^'dent, or inno- 1-1 , , i p p • 1 1 • /• . • 1 p 1 -11 cent recreations. gaged in by mutual consent oi iriendship, tor trial ot skill or manhood, or improvement in the use of weapons, it is chance-medley (k). This extends not to prize-fighting, or public boxing- Extends not to matches for lucre; nor to throwing at cocks (/). pnze-fightmg. 10. Accidental Death. If a man driving a cart, &c. kills, and he saw the Driving a cart, danger, it is murder ; if he did not, through heedlessness, it is manslaughter J if he took all due care, it is accidental death (w). (d) Foster, 277. (0 1 Hale, 484. (e) lb. 259. (/c) Foster, 259. (/) 1 Hal. P. C. 479. {1} lb. 260. (o-) lb. 482. (?«) lb. 263. {h) 1 Haw. 75. S08 OFFICE AND DUTY OF If a man finds If a man finds a pistol, tries it with a rammer, and thinks a pistol. j^ unloaded, carries it home, shows it his wife, touches the trigger, it goes off, and kills her, ruled manslaughter ; yet ought to have been only accidental death. Death ensuing Death ensuing upon an act unlawful cannot be acci- fawful?'^ ''"" dental ; but if done deliberately, and with intention of mischief, murder ; if heedlessly, manslaughter (n), as if Workman a workman, throwing rubbish out of a house, kills, if he *l»rowing nib- gave warning, it is only accidental death ; if not, man- bish off a house, slaughter atleast. And if in London, or populous towns, such warning not sufficient, miless early, and when few people are stirring (o). 11. Of Killing an Officer of Justice. When an officer is killed in the execution of his office it is murder, as a watchmen, a constable (p), serjeant, or magistrate, or any in their assistance, though not on the spot, but coming or going (rj). But the officer should be known, or notify with what intent he comes, by com- manding the peace. If he arrests on process he should give notice of his authority (r). But if the officer does what is not warrantable, it is only manslaughter (s). Persons having authority to arrest or imprison, using the proper means for that purpose, and being killed in the struggle, it is murder in all who take a part in such resist- ance, and this will hold in all cases whether civil or criminal. So in case of breach of the peace, or any mis- demeanor short of felony (t). 12, Jf Officer exceeds his Jurisdiction. When an officer of justice exceeds the limits of his ju- risdiction in the death of another, it is murder (u). Gaoler, If a gaoler carries his prisoner against his will, whom he knows has never had the small pox, but fears it, to a place where he knows a person having it is, and the prisoner catches it, and dies, it is murder (v). (n) Forster, 260. (s) Mar. 4. (o) lb. 262, 263. (t) Foster, 270. (p) Hal. 4.5. 3 Inst. 52. (w) Hal. P. C. 35. (q) Foster, 308. (n) Str. 854. (»•) lb. 310, 311. CORONERS. i»OD If a gaoler (as warden) has a lawful deputy, whose Deputy gaoler. servant, by duress, (of confining in an unwholesome room,) kills his prisoner, it is not murder in the principal ; but it is murder in the servant (x). If defendant in a civil suit, fearing arrest, flies, officer pursues, and in the pursuit kills, it is murder, or man- slaughter, according to circumstances (y). Persons having authority to arrest or imprison, using jf persons the proper means for that purpose, and being killed in the having lawful struggle, it is murder in all who take a part in such resist- aj"thonty arrest ance, and this will hold in all cases, whether civil or cri- ;„ a^stxuggle he minal. So in case of breach of the peace, or any misde- is killed, murder. meanor short of felony (z). 13, Of Bastards horn. If a woman delivered of issue, which, being born alive would be a bastard, endeavour by burying, drowning, or any other way, either by herself or others so to conceal its death, that it may not appear whether born alive or not, it is murder, unless she prove, by one witness at least, that it was born dead. The killing must be within the i6Ca*r i c T* realm {a). This statute, however, was repealed by 43 Geo. 3, c. 58. which enacted, that in such cases the woman should be proceeded against as in any other case of murder, and this last act has been repealed by 9 Geo. 4, c. 31, and she is now indictable for concealing the birth of the child as for a misdemeanor ; and it is unnecessary to show whe- ther the child died before or after its birth. Of Accessory before the Fact. Coroners are only to inquire of accessories hefore the fact {h). A man who, by his command, counsel, contrivance, consent or encouragement, incites or moves another to commit a felony, though he be not present when it is done, will be an accessory before the fact (c) ; as if he urge, persuade or procure him to do it : or if he furnish him with a weapon, &c. for such intent {d). He who is not present at the perpetration can be no more than an accessory before the fact, except in special cases (e). (x) Str. 882. (fc) Jenk. 177. ly) Hal. 481. Foster, 271. (c) 2 Inst. 182. \%) Foster, 270. (i) Foster, 121. (a) 3 Inst. 48. Hale, 54. (e) Fost. 349. 510 OFFICE AND DUTY OF In the case of poisoning, he who counsels another to give poison, if absent, is only an accessory before the fact : but he who gives or lays the poison is a principal, though absent when taken (f). If he be present, but neither aiding nor abetting, he is then neither principal nor accessory {g). Of Deodands. By deodands is meant whatever personal chattel is the immediate occasion of the death of any reasonable crea- ture, which is forfeited to the king, to be applied to pious uses, and to be distributed in alms by his high almoner. A deodand is where any man kills himself, or is by misfortune slain by a horse, cart, or any other thing that moveth to his death ; then the thing which is the cause of or moved to his death shall be forfeited to the king, or grantee of the crown. But the almoner disposes of what belongs to the king {Ji). No deodand is due when an infant under the age of discretion is killed by a fall from a cart, or horse, or the like, not being in motion {%). But if a horse or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands. Where a thing not in motion is the occasion of a man's death, that part only which is the immediate cause is forfeited : as, if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a deodand {]i). But wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel which runs over his body,) but all things which move with it, and help to make the wound more dangerous, (as the cart and loading, which increase the pressure of the wheel,) are forfeited (0- I^ matters not whether the owner were concerned in the killing or not ; for if a man kills another with my sword, the sword is forfeited, as an accursed thing. No deodands are due for accidents happening upon the high seas, that being out of the j urisdiction of the common law ; but if a man falls from a boat or ship, in fresh water, and is drowned, it (/) 1 Hale, 435, (0 1 Hale, 422. (0-) Hale, 430. (/<) lb. 422. (A) Lill. Fi. Reg. 607. (/) 1 Haw. P. C. c. 20. CORONERS. 611 hath been said that the vessel and cargo are in strictness of law a deodand (m). But juries of late have veiy fre- quently taken upon themselves to mitigate these for- feitux'es, by finding only some trifling thing to have been the occasion of the death : and the King's Bench have refused to interfere on behalf of the lord of the franchise to assist so odious a claim (n). But they are not forfeit till the death be found, which is regularly by the coroner (o) ; they then belong to the king, or to the lords of the manors who have the grants thereof inrolled in the crown-oflice, and a discharge by 4 & 5 w & M. them is good for the inrolment {p). c. 22. Deodands of the goods and chattels of a felo de se, that is, of him that kills himself, or is killed by any accident, and upon inquisition thereof found before the coroner, do belong to the king, or to the lords of the manors who have the grants thereof inrolled in the crown-office. But as to those which belong to the king, he appoints his chief almoner to dispose of them to the poor, or to be employed in other pious uses. And a dis- charge given for them by the almoner or his deputy, or such lord of a manor, to any person that hath such goods of a felo de se in his possession, is a good dis- charge in law for them ; but a discharge given for them by an under-deputy is no good discharge, for he is no such officer as the law takes notice of. Upon the death of a man by misadventure, &.c. the in- quisition ought to inquire of the goods that occasioned the death, and the value of them, and the villata where the mischance happened shall be charged with process for the said goods, or their value, though they were not delivered to them ( Jurors. E. F. &c. J The place of the death and finding of the body being essential to found the jurisdiction of the coroner, if they are omitted to be stated it is a fatal objection. So a mis-statement as to the property in the subject which is the cause of death (a). If the names of jurors are not stated in the body of the in- quisition, and are only subscribed by initials, it is bad (b), (a) R. i'. Evett, 6 B. & Cr. 247. (6) lb. TO OFFICE OF CORONER. 523 So an uncertainty in showing the nature of the mate- rials which caused the death, or omitting the value, held void p7-o tanto (c). An inquisition signed " Deputy-steward and coroner," held sufficient, as there might be a good custom for a coroner to appoint a deputy ; and it might be read coro- ner and deputy-steward {d). [As in the former precedent., to the voords upon their oath Inquisition by say :] That the said R. F. not having the fear of God be- lifnging. fore his eyes, but moved and seduced by the instigation of *■ "' ^ '"*• the devil, on with force and arms, at the parish and in the county aforesaid, in and upon himself, in the peace of God and of our said sovereign lord the king then and there being, feloniously, wilfully, and of his malice forethought, did make an assault ; and that the said R. F. one end of a certain piece of small cord, of no value, unto a certain iron bar then and there fixed in the ceiling of the round-house then and there situate and being, (wherein the said R. F. was then and there a prisoner in custody charged with felony,) and the other end thereof about his neck, did fix, tie and fasten, and therewith did then and there hang, suffocate and strangle himself; of which said hanging, suffocation and strangling, he the said R. F. did then and there die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. F. in manner and by the means aforesaid, feloniously, wilfully, and of his malice forethought, did kill and murder himself, against the peace of our said lord the king, his crown and dignity. And that the said R. F. at the time of the committing the No felony and murder aforesaid, had no goods or chattels, lands or tenements, within the said county, or elsewhere, to tile knowledge of the said jurors (e). In witness, iS:c. [As before:] That the said R. F. not having the fear of inquisition by God before his eyes, but moved and seduced by the insti- stabbing. gation of the devil, on with force and arms, -f^^'o '^^ **• at the parish and in the county aforesaid, in and upon him- self, in the peace of God and of our said sovereign lord the king, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said R. F. with a certain drawn sword, made of iron and steel, of the value of 55. which he the said R. F. then and there had and held in his right hand, did then and there give unto himself one mortal wound in and upon the belly of him the said R. F. under the left breast, of the breadth of one inch, and of the depth of six inches ; of which said (c) Carruthei's ex parte, 2 M. & Ry. 397. (d) lb. (e) The 7 & 8 Geo. 4. c. 2. 8. s, 5. relieving juiies from iiucling flight or forfeiture, applies only to parties in licied. 524 No goods. By shooting Felo de se. By drowning. Felo de se. By poisoning. Felo de se. APPE^D1X OF FORMS mortal wound he the said R. F. then and there instantly- died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said R. F. in manner and by the means aforesfiid, feloniously, wilfully, and of his malice forethought, dd kill and murder himself, against the peace of our sovereign lord the king, his crown and dignity. And that the said R. F. at the time of the said felony and mur- der so as aforesaid done and committed, had no goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge of the said jurors. In wit- ness, &c. That the said R. F. not having, &c. [as before, until you come to the xvord assault, then proceed] : And that the said R. F. a certain pistol, of the value of lOs., charged with gunpowder and a leaden bullet, which he the said R. F. then and there had and held in his right hand, feloniously, wilfully, and of his malice forethought, to and against the head of him the said R. F. did then and there shoot off and dis- charge ; and that by means of the shooting off and discharg- ing of the pistol aforesaid he, the said /?. F., did then and there give unto himself with the leadtni bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the force of the gunpowder aforesaid, in and upon the head of him the said R. F. one mortal wound of the breadth of one inch and depth of three inches, of which said mortal wound he the said R. F. then and there instanly died. And so the jurors aforesaid, upon their oath aforesaid, do say, &c. [as in the former, to^ In witness, &c. That the said R. F. &c. [unto the voord assault] : And that the said R. F. into a certain river or stream of water, commonly called at the parish aforesaid, in the county aforesaid, did violently cast and throw himself, by means of which said casting and throwing he the said R. F. in the waters of the said river, was then and there suflb- cated and drowned, of which said suffocation and drown- ing he, the said R. F. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, &c. [us in the last but one, to] In witness, cvc. That the said R. F. &c. [as before, S;c.] And that the said R. F. a certain quantity of white arsenic, being a deadly poison, into a certain quantity of tea infused in warm water, feloniously, wilfully, and of his malice fore- thought, did then and there put and mix, and then and there, well knowing the said white arsenic to be a deadly poison, and that the said R. F. a great quantity of the said tea in which the said white arsenic was so put and mixed as aforesaid afterwards, to wit, on the same day, in the same year, at the parish aforesaid, in the county aforesaid, TO OFFICE OF CORONER. 525 feloniously, wilfully, and of his malice forethought, did take, drink and swallow down, by means whereof he the said R. F. then and there became sick and distempered in his body ; and of the said poison and tlie said sickness and distemper thereby occasioned, from the said day of in the year aforesaid, until the day of the same month, in the same year, at the parish afore- said, in the county aforesaid, did languish, and languish- ing did live ; on which said day of in the year aforesaid, at the parish and in the county afore- said, he the said 7i. F. of the poison, sickness and dis- temper aforesaid, did die. And so the jurors aforesaid, &zc. [as before, to] In witness, &c. {_as before.] That the said R. F. not having the fear of God, &c. By cutting his [as before, to the twrd assault :] And that the said throat. R. F. with a certain razor, made of iron and steel, of the ^''''"''^ ^^• value of 1 s. which he the said R. F. then and there had and held in his right hand, the throat or gullet of him the said R. F. did then and there strike and cut, thereby then and there giving unto himself, with the razor aforesaid, in and upon the said throat or gullet of him the said R F. one mortal wound of the length of three inches and depth of one inch, of which said mortal wound he the said R. F. then and there instantly died. And so the jurors afore- said, upon their oaths aforesaid, do say, that the said R. F. in manner and by the means aforesaid, feloniously, wilfully, and of his malice forethought, did kill and murder himself, against the peace of our said lord the king, his crown and dignity. And the jurors aforesaid, upon their oath afore- Goods found. said, do say, that the said R. F. at the time of the doing and committing of the felony and murder aforesaid, had goods and chattels contained in the inventory to this inqui- sition annexed, which remain in the custody of C. D. who claims the same. In witness, Sic. An inventory of the goods and chattels q/R. F. in the inquisition annexed named, who feloniously, wilfully, and of his malice forethought, cut his throat. Imprimis, In the hall, two mahogany tables, six walnut tree chairs, &c. [specifying every particrdar, as 'well out of doors as in. When the vohole is taken, conclude rvith saying] All which said goods and chattels are appraised and valued Appraisement. at the sum of 20/. [The coroner is to write his name, with his name of office, underneath ; and let the jurors also sign their names ; then annex the schedule, which should be engrossed on parchment, to be annexed to the inquisi- tion, and return it.] 52G APPENDIX OF FORMS JV. B. If the goods be not claimed, you only say in whose hands they are, without more, or the coroner may seize and deliver them in charge to the ville, and in the inquisition say in whose hand (such as the constable, churchwardens or overseers) you deliver them for the use of His Majesty, who, " prima facie,'" is always entitled, till a grantee appears and claims (e). If the party in whose custody the goods, &c. are, shall appear to be servant or bailiff to any subject who may claim title, (and in those cases they generally give due attendance to hear the verdict and sei've their principal), in this case say in the inquisition, that they remain or are in the hands and custody of ^. B. the servant or bailiff of C. D. who claims the same. Petit Treason — in the Wife. By killing the That A- B. late of the parish aforesaid, in the county husband with aforesaid, widow, late the wife of the said C. B. not having w''hidow°sl'^tt ^'^^ ^^^^ '^^ ^^^ before her eyes, but being moved and seduced by the instigation of the devil, and of her malice forethought, contriving and intending him the said C. B. her said late husband, to, deprive of his life, and him felo- niously and traitorously to kill and murder, on with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the said C. B. her said husband, in the peace of God and of our said lord the king then and there being, feloniously, traitorously, wilfully, and of her malice forethought, did make an assault ; and that the said A. B. with a certain iron pin of a window shutter, of the value o?6d. which she the said //. B. then and there had and held in her right hand, him the said C- B. in and upon the head of him the said C. B. near unto the left temple, did then and there strike and beat, thereby then and there giving unto him the said C. B. with the iron pin aforesaid, in and upon the head of him the said C B. near unto the left temple aforesaid, one mortal wound, of the length of two inches, and depth of half an inch, of which said mortal wound he the said C. B. from the said day of in the year aforesaid, to the day of the same month, in the same year, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, on which said day of in the year aforesaid, at the parish and in the county aforesaid, of the mortal wound aforesaid, he the said C. B. died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A, B. him the said C. B. her said husband, in (e) Coke's Entr. 53. TO OFFICE OF CORONER. 527 manner and by the means aforesaid, feloniously, traitor- ously^ wilfully, and of her malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., at the time of the committing of the felony and murder aforesaid, or at any time since, had not any goods or chattels, lands or No goods. tenements, in the said county or elsewhere, to the know- ledge of the said jurors. In witness &c. That A. B. late of the parish aforesaid, in the county Poisoning. aforesaid, widow, late the wife of the said C. B. not having the fear of God before her eyes, but moved and seduced by the instigation of the devil, and of her malice fore- thought, contriving and intending him the said C B., her said late husband, to deprive of his life, and him feloni- ously and traitorously to kill and murder, on with force and arms, at the parish aforesaid, in the county afore- said, in and upon the said C. B. in the peace of God and of our said lord the king then and there being, feloniously, traitorously, wilfully, and of her malice forethought, did make an assault ; and that the said A. B. a great quantity of yellow arsenic, being a deadly poison, into a certain quantity of strong beer, feloniously, traitorously, wilfully, and of her malice forethought, did then and there put and mix (she the said A. B. then and there well knowing the said yellow arsenic to be a deadly poison) ; and that the said A. B. afterwards, to wit, on the same day and year, at the parish aforesaid, in the county aforesaid, feloniously, traitorously, wilfully, and of her malice forethought, the said poison in the strong beer aforesaid so as aforesaid put and mixed, did offer and give unto him the said C. B. to take, drink and swallow down ; and that the said C. B. not knowing the poison aforesaid into the strong beer aforesaid to have been as aforesaid put and mixed, afterwards, to wit, on the said day of in the year aforesaid, at the parish aforesaid, in the county aforesaid, the said poison in the strong beer aforesaid so as aforesaid put and mixed, by the procurements of the said A. B., did then and there take, drink, and swallow down, and thereupon the said C. B. by the poison aforesaid so taken, drank and swal- lowed down as aforesaid, became then and there sick and distempered in his body ; and the said C. B. of the poison aforesaid, and of the sickness and distemper occasioned thereby, from the said day of in the year aforesaid, until the day of the same month, in the same year, at the parish and in the county aforesaid, did languish, and languishing did live ; on which said 5^8 No goods. By stabbing. Flight. No goods. By cutting the throat. APPENDIX or FORMS day of in the year aforesaid, he the said C. B. at the parish aforesaid, in the county aforesaid, of the poison aforesaid, and of the sickness and distemper thereby occa- sioned, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. him the said C. B. her said husband in manner and by the means afore- said, feloniously, traitorously, wilfully, and of her malice forethought, did poison, kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said A. B. at the time of the committing of the felony or murder aforesaid, or at any time since, had not any goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge of the said jurors. In witness, &c. \_As in the other, to the ivord assault :] And that the said A. B. with a certain penknife, made of iron and steel, of no value, which she the said A. B. then and there had and held in her right hand, him the said C. B. in and upon the left breast of him the said C. B. her said husband, did then and there strike, stab and penetrate ; and that the said A. B. by the striking and stabbing aforesaid, did then and there give unto him the said C. B. in and upon his left breast aforesaid, with the penknife aforesaid, one mor- tal wound of the length of one inch and of the depth of three inches, of which said mortal wound he the said C. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. him the said C. B. her said husband, in manner and by the means aforesaid, feloniously, traitorousli/, wilfully, and of her malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said A. B. after she had committed the felony and murder aforesaid, in manner and by the means afoi'esaid, withdrew and fled for the same ; and that at the time of committing thereof, or at any time since, she had not any goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge of the said jurors. And that the inhabitants of the said parish did not make and levy, and cause to be made and levied, hue and cry after the said A. B. in order that the said A. B. might have been apprehended and taken for the said felony and murder, as by the laws and customs of this realm they ought to have done. In witness, &c. \^As in the other to the word assault :] And that the said A. B. with a certain case-knife, made of iron and steel, of the value of 6d. which she the said A. B. then and there had and held in her right hand, the tlu'oat or gullet of him TO OFFICE OF CORONER. 529 the said C. B. feloniously, trnitnrously, wilfully, and of her malice forethought, did strike and cut : and that the said A. B. with the case-knife aforesaid, by the striking and cutting aforesaid, did then and there give unto him the said C. B. in and upon the said throat or gullet of him the said C. B. one mortal wound of the length of three inches and depth of one inch, of which said mortal wound he the said C B. from the said day of in the year aforesaid, to the day of the same month, in the same year, at the- parish aforesaid, in the county aforesaid, and Languishing also in the parish of in same county, to wit, in ^"^^ parishes, the hospital there situate, did languish, and lan- guishing did live ; on which said day in the year aforesaid, he the said C. B., in the hospital aforesaid, at the said last-mentioned parish of in the county aforesaid, of the mortal wound aforesaid did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. him the said C. D. her said hus- band, in manner and by the means aforesaid, feloniously, traitorously, wilfully, and of her malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said A. B. at No goods. the time of the committing the felony and murder afore- said, or at any time since, had no goods or chattels, lands or tenements, in the said county, or elsewhere, to the know- ledge of the said jurors. In witness, &c. Petit Treason — in the Servant. [^As in t,ne other, to the tuord assault :] And that the said C. D. a certain piece of small cord, of no value, about the tije'^aster. neck of him the said A. R. then and there feloniously, traitorously, wilfully, and of his malice forethought, did fix, tie and fasten, and that the said C. D. him the said A. B. with the piece of small cord aforesaid, did then and there choke, suffocate and strangle, of which said choking, suffocation and strangling he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the servant of the said A. B. him the said A. B. his said master, in man- ner and by the means aforesaid, feloniously, traitoroiisli/, wilfully, and of his malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said C. D. after he had done and Flight. committed the felony and murder aforesaid, in manner aforesaid, withdrew and fled for the same. And that at the time of the doing and committing thereof, or at any time since, he had no goods or chattels, lands or tene- ments, within the said county, or elsewhere, to the know- ledge or notice of the said jurors. In witness &c. Servant strangling No goods. 530 APPENDIX OF FORMS Murder. Killing with a That C. D. late of the parish aforesaid, in the county poker. aforesaid, labourer, not having the fear of God before his eyes, but moved and seduced by the instigation of the devil, on with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the said A. B. in the peace of God and of our said lord the king then and there being feloniously, wilfully, and of his malice forethought, did make an assault. And that the said C. D. with a certain iron poker, of the value of one shilling, which the said C. D. then and there had and held in both his hands, him the said A. B. in and upon the head of him the said A. B. then and there divers times, feloniously, wilfully, and of his malice forethought, did strike and beat. And that the said C. D. did then and there give unto him the said A. B., in and upon the head of him the said A. B. with the iron poker aforesaid, divers mortal bruises, of which said m.ortal bruises he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B. in manner and by the means aforesaid, feloniously, wilfully, and of his malice forethought, did kill and murder, against the peace of our said lord the king, his crown Fliglit. and dignity. And that the said C. D after the doing and committing of the said felony and murder aforesaid, with- No goods. drew and fled for the same. And that at the time of the doing and committing thereof, or at any time since, he had no goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge or notice of the said jurors. In witness whereof, &c. Killing of the [As before, to the tuorc? assault :] And that the said A. B. wife with a pair with a certain pair of bellows, of the value of i s. which he ?u_^u'i*'r.l'^y the said A. B. then and there had and held in both his hands, her the said S. in and upon the right side of the head, near the right temple of her the said S. then and there feloniously, wilfully, and of his malice forethought, did hit and strike. And that the said A. B. did then and there give unto her the said S. by such striking at her with the bellows aforesaid, one mortal bruise in and upon the said side of the head near the right temple of her the said S. of which said mortal bruise she the said S. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. her the said S. in manner and by the means aforesaid, feloniously, wil- fully, and of his malice forethought, did kill and murder, against the peace of our said lord the king, his crown and the husband. TO OFFICE OF CORONER. 531 dignity. And that after the said A. B. had done and com- Flight. mitted the felony and murder aforesaid, in manner and by the means aforesaid, he the said A. B. withdrew and fled for the same. And that the 'said A. B. at the time of the No goods, doing and committing of the felony and murder aforesaid, or at any time since, had no goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge of the said jurors. In witness, &c. [As before, to the iwrd assault :] And that the said Ky shooting CD. a certain pistol, of the value of 105. charged and witli a pistol. loaded with gunpowder and a leaden bullet, which he the said C. D. then and there had and held in his right hand, to and against the head of him the said A. B. did then and there shoot off and discharge ; by means whereof he the said C. D. feloniously, wilfully, and of his malice fore- thought, did then and there give unto him the said A. B. with a leaden bullet aforesaid, so as aforesaid shot off and discharged out of the pistol aforesaid, by the force of the gunpowder aforesaid, in and upon the head of him the said A. B. one mortal wound, penetrating the brain of him the said A. B. of which said mortal wound he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B. in the manner and by the means aforesaid, feloniously, wilfully, and of his malice fore- thought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said C. D. &c. [as before, if in the case of a flight and no goods, Flight. S)-c. or of either of them, as the fact may turn out.l In wit- No goods. ness, &c. [As before, to the ivord assault :] And that the said By strangling. C D. a certain linen handkerchief, of no value, about the neck of her the said A. B. then and there feloniously, wil- fully, and of her malice forethought, did fix, tie and fasten, and that the said C. D. her the said A. B. with the linen handkerchief aforesaid, feloniously, wilfully, and of her malice forethought, did then and there choke, strangle and suffocate ; of which said choking, strangling and suf- focation she the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said C. D. her the said A. B. in manner and by the means aforesaid, feloniously, wilfully, and of her malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. [Flight — Goods, Sfc. — in both or in either case as before.] In witness, 38 By riding over a person with a mare. By throwing to the ground and bruising. APPENDIX OF FORMS king, hi& crown and dignity. \_Flight — Forfeiture.} In witness, [as before.'] That JV. W. late of the parish aforesaid, in the county aforesaid, labourer, not having the fear of God before his eyes, but moved and seduced by the instigation of the devil, on with force and arms, at the parish afore- said, in the county aforesaid, in and upon the said A, B. in the peace of God and of our said lord the king then and there being, feloniously, wilfully, and of his malice fore- thought, did make an assault. And that the said IV. IV. then and there riding upon a certain grey mare, of the price of 1 o /., the said mare in and upon the said A. B. then and there feloniously, wilfully, and of his malice forethought, did ride and force, and upon and over the said A. B. with the mare aforesaid then and there did ride and throw to the ground, by means whereof the said mare, with her hinder feet, him the said A. B. so thrown to and on the ground as aforesaid, in and upon the hinder part of the head of him the said A. B. did then and there strike and kick, thereby then and there giving unto him the said A. B. in and upon the said hinder part of the head of him the said A. B. one mortal fracture and contusion, of which said mortal fracture and contusion he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said W. W. him the said A. B. in manner and by the means aforesaid, felo- niously, wilfully, and of his malice forethought, did kill and murder, against the peace of our said lord the king, his crown and dignity. — [Flight — Fotyeiture.} In witness, &c. [as before.] Manslaughter. Tliat C Z). late of the parish of in the said county, labourer, on with force and arms, at aforesaid, in the county aforesaid, in and upon the said A. B. in the peace of God and of our said lord the king then and there being, feloniously did make an assault. And that the said C. D. with both his hands him the said A. B. then and there feloniously did throw and cast to the ground, thereby then and there giving unto him the said A. B. one mortal bruise in and upon the lower part of the belly of him the said A. B. under the navel, of which said mortal bruise he the said A. B. at the parish of aforesaid, in the county aforesaid, and also at the said parish of in the same county, from the said day of in the year aforesaid, until the day of the same month, in the same year, did languish, and languishing did live; on which said day of in the year aforesaid, at the TO OFFICE OF CORONER. 539 said parish of in the county aforesaid, he the said A. B. of the mortal bruise aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B. in manner and by the means aforesaid, feloniously did kill and slay, against the peace of our said lord the king, his crown and dignity. And that the said C D. after he had done and committed Flight. the felony and manslaughter aforesaid, in manner aforesaid, withdrew and fled for the same. And that he the said No goods. C. D. at the time of the doing and committing of the felony and manslaughter aforesaid, or at any time since, had no goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge or notice of the said jurors. In witness, &.C. That C. D. late of the parish of in the county By tlirowlng to aforesaid, labourer, together with divers other persons, to the ground, ■, . ^ ■ ^ ^ 1 ^1 1 r beatinsr and the jurors aforesaid as yet unknown, on the clay ot i^jj^j^in^^ ^(., in the year aforesaid, with force and arms, at the said parish of and county aforesaid, in and upon the said A. B. in the peace of God and of our said lord the king then and there being, feloniously did make an assault. And that the said C. D. with a certain oaken stick, of no value, which lie the said C. D. then and there had and held in his right hand, him the said y^. B. in and upon the head, shoulders, breast and stomach of him the said A. B. did then and there divers times feloniously strike and beat. And that the said C. B, and the said divers other persons, to the jurors aforesaid as yet unknown, him the said A. B. did then and there violently and feloniously cast and throw to the ground. And that the said C. D. and the said divers other persons unknown, him the said A. B. then and there lying upon the ground as aforesaid, with the feet of him the said C. D. and also with the feet of the said divers other persons unknown, in and upon the said head, shoulders, breast and stomach of him the said A. B. then and there feloniously did strike, kick and trample, thereby then and there giving unto him the said A. B. divers mortal bruises in and upon the said head, shoulders, breast and stomach of him tliu said A. B. of which said mortal bruises he the said A. B. at the said parish of and also at the parish of in the county aforesaid, and also in a certain hospital, situate in the parish of in the county aforesaid, from the said day of ^ in the year aforesaid, until the day of in the same year, did languish, and languishing did live ; on which said day of in the same year, in the hospital aforesaid, in the said parish of in the county aforesaid, he the said A. B. of the mortal bruises 540 By beating about the head and temples. By throwing a knife. Upon the statute of stabbirg. APPENDIX OF FORMS aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. and the said divers other persons to the jurors aforesaid as yet unknown, him the said A. B. in manner and by the means aforesaid, feloniously did kill and slay, against the peace of our said lord the king, his crown and dignity. — [Flight — Forfeiture ] In witness, &c. [as before.] [To the word assault.] And that the said C. D. with both his hands him the said J, B. did then and there, in and upon the head and left temple of him the said A. B. feloniously strike and beat. And that the said C. D. by the striking and beating aforesaid did then and there give unto him the said A. B- one mortal bruise in and upon the said left temple of him the said A. B. of which said mortal bruise he the said A. B. then and there in- stantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D- him the said A. B. in manner and by the means aforesaid, feloniously did kill and slay, against the peace of our said lord the king, his crown and dignity. [Flight — Forfeiture.] In witness, &c. [as before.] [To the word assault.] And that the said J. M. a certain large knife made of iron and steel, of the value of 6 d. which he the said J. M. then and there had and held in his right hand, at and against him the said A. B. then and there feloniously did cast and throw, and him the said A. B. with the knife aforesaid, so cast and thrown as afore- said, in and upon the left side of the body of him the said A. B. near the groin, then and there feloniously did strike and stab ; and that the said J. M. with the knife aforesaid, so cast and thrown as aforesaid, did then and there felo- niously give unto him the said A. B. in and upon the said left side of the body of him the said A. B. near the groin, one mortal wound of the breadth of one inch and depth of two inches, of which said mortal wound he the said A.B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. M. him the said A. B. in manner and by the means aforesaid, feloniously did kill and slay, against the peace of our said lord the king, his crown and dignity — [Flight — Forfeiture.] In witness, &c. [as before.] That C. D. late of the parish aforesaid, in the county aforesaid, labourer, on the day of in the vear aforesaid, at the parish and in the county aforesaid, in and upon the said A. B. in the peace of God and of our said lord the king then and there being, feloniously and in the fury of his mind, did make an assault. And TO OFFICE OF CORONER. that the said C. D. with a certain drawn sword, made of iron and steel, of the vakie of 5 s. which he the said C D. then and there had and held in his right hand, him the said A. B. in and upon the left breast of him the said A.B, then and there feloniously, and in the fury of his mind, did strike and stab ; " he the said A. B. then and there " not having an}'^ weapon drawn, nor he the said A, B. " then having first sti'icken the said C. DJ" And that the said C. D. with the sword aforesaid, did then and there give unto him the said A. li. in and upon the said left breast of him the said A. B. one mortal wound, of the breadth of one inch and of the depth of four inches, of which said mortal wound he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B. in manner and by the means aforesaid, feloniously, and in the fury of his mind, did kill and slay, against the form of the statute in such case made and provided, and against the peace of our said lord the king, his crown and dignity. — [Flight — Forfeiture.] In witness, &c. {_as before.^ The statute 1 J^ac. 1. (h) only takes away the clergy from him who actually stabs ; if there be aiders or abettors they can only be found guilty of simple manslaughter, in which case charge them separately from the principal, or jointly with the principal; the precedent is given both ways : in the first case, after the close of the inquisition against the principal, after the word dignity, say thus : And the jurors aforesaid, upon their oath aforesaid, do further say, that S. W. late of the parish and county afore- said, labourer, and G. IV. late of the same place, labourer, at the time of the doing and committing of the felony and manslaughter aforesaid, feloniously were present, abetting, aiding, assisting, comforting and maintaining the said C. D. to kill and slay the said A- B. in manner aforesaid, against the peace of our said lord the king, his crown and dignity. — [Then conclude tvith Flight — Forfeiture, &c.] That C D. late of the parish and county aforesaid, labourer, and E. F. late of the same place, labourer, not having the fear of God before their eyes, but moved and seduced by the instigation of the devil, on with force and arms, at the parish aforesaid, in the county afore- said, in and upon the said A. B. in the peace of God and of our said sovereign lord the king then and there being, feloniously, wilfully, and of their malice forethought, did make an assault. And that the said C. D. with a certain (h) 1 Hawk. PI. Cor. 77 ; but see 9 Geo. 4. c. 34. 541 c. 8. Against aiders and abettors. For murder, and also upon the statute of stabbing, with a charge against the principal in the second degree. 542 Principal in the second degree. That both commuted the murder. Fliolif. No goods. On the statute of stabbing. APPENDIX OF FORMS drawn sword, made of iron and steel, of the value of 55. which he the said C D. then and there had and held in his right hand, him the said A. B. into and through the body- under the left breast of him the said A. B. did then and there feloniously, wilfully, and of his malice forethought, thrust, stab and penetrate ; and that the said C. D. with the sword aforesaid, by the thrusting, stabbing and penetrating aforesaid, did then and there give unto him the said A. B. under the left breast aforesaid, one mortal w^ound, of which said mortal wound he the said A. B. then and there instantly died. And the jurors aforesaid, upon their oath aforesaid, do say that the said E. F. at the time of the committing of the felony and murder afore- said, feloniously, wilfully, and of his malice forethought, was present, abetting, aiding, assisting, comforting and maintaining the said C. D. to kill and murder the said A. B. in manner aforesaid. And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said C. D. and E. F. him the said A. B. in manner and by the means aforesaid, feloniously, wilfully, and of their malice fore- thought, did kill and murder, against the peace of our said lord the king, his crown and dignity. And that the said C. D. after the doing and committing of the felony and murder aforesaid, withdrew and fled for the same ; and that at the time of the doing and committing thereof, or at any time since, they the said C. D. and E. F. nor either of them, had any goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge or notice of the said jurors. And the jurors aforesaid, upon their oath aforesaid, do further say, that the said C. D. and E. F. on the said day of in the year aforesaid, at the parish and in the county aforesaid, in and upon the said A. B. in the peace of God and of our said sovereign lord the king then and there being, feloniously, and in the fury of their mind, did make an assault. And that the said C. D. with a certain drawn sword, made of iron and steel, of the value of 5 s. which he the said C. D. then aud there had and held in his right hand, him the said A. B. into and through the body under the left breast of him the said A. B. did then and there feloniously, and in the fury of his mind, thrust, stab and penetrate, he the said A. B. then and there not having any weapon drawn, nor then having first stricken the said C. D. And that the said C. D. with the sword aforesaid, by the thrusting, stabbing, and penetrating afore- said, did then and there give unto him the said A. B. under the left breast aforesaid, one mortal wound, of which said mortal wound he the said A. B. then and there in- TO OFFICE OF CORONER. 543 Principal in the second deOTee. stantly died. And that the said E. F. at the time of the doing and committing of the felony and manslaughter aforesaid, feloniously, and in the fury of his mind, was present, abetting, aiding, assisting, comforting and main- taining the said C. D. to kill and slay the said A. B. in manner aforesaid. And so the jurors aforesaid, upon their That both oaths aforesaid, do say, that the said C. D. and E. F. killed. him the said A. B. in manner and by the means aforesaid, feloniously, and in the fury of their mind, did kill and slay, against the form of the statute in such case made and pro- vided, and against the peace of our said lord the king, his crown and dignity. And that the said C. D. after the Flight. doing and committing of the felony and manslaughter aforesaid, withdrew and fled for the same ; and that at ^o goods. the time of the doing and committing thereof, or at any time since, they the said C. D. and E. F. nor either of them, had any goods or chattels, lands or tenements, within the said county, or elsewhere, to the knowledge or notice of the said jurors. In witness, &c. [as before.] The length and depth of the wound in this last pre- cedent is omitted, because it thereby appears the thrust or wounding was through the body. Se Defendendo. That on at the parish and in the county afore- By self-defence, said, the said A. B. being in a certain common drinking room, belonging to a public house there situate, known by the name or sign of in which said common drinking room one C. D. of the parish aforesaid, in the county aforesaid, labourer, and also divers other persons, was and were then and there present. And that the said A. B. without any cause or provocation whatsoever given by the said C. D. did then and there menace and threaten the said C. D. to turn him the said C. D. out of the said common drinking room, and for that purpose did then and there lay hold of the person of him the said C D. and on him the said C. D. in the peace of God and of our said lord the king then and there being, violently did make an assault; and him the said C. D. without any cause or pro- vocation whatsoever, did then and there beat, abuse and evilly treat. Whereupon the said C. D. for the preserva- tion and safety of his person, and of inevitable necessity, did then and there, with the hands of him the said C. D. defend himself against such the violent assault of him the said A. B. as it was lawful for him to do. And the said A. B. did then and there receive against the will of him the said C. D. by the falls and blows which he the said A. B. then and there sustained by liis the said C D.'s so 541 iSe defendendo in defence of himself and property. APPENDIX OF FORMS defending himself as aforesaid, divers mortal bruises in and upon the head, back and loins of him the said A. B. of which said mortal bruises he the said A. B. from the said day of in the year aforesaid, until the of the same month, in the same year, at the parish of in the same county, to wit, in a certain hospital there, called did languish, and languishing did live ; on which said day of in the year afore- said, he the said A. B. within the hospital aforesaid, at the parish and in the county aforesaid, of the mortal bruises aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B., in the defence of himself the said C D., in manner and by the means aforesaid, did kill and slay ; but what goods or chattels the said C. D. had at the time of the doing and committing the said manslaughter in his own defence as aforesaid the said jurors know not. In witness, &c. An inquisition indented, taken on behalf of our sovereign lord the king, at the parish of in the ward of in the county of before esq. coroner of our said lord the king of the said city, on viexv of the body of one D. V. then and there lying dead, by the oath of, &c. \iiaming all the jurors] good and lawful men of the said city, who being sworn and charged to inquire, for our said lord the king, when, how and by what means the said D. V. came to his death, do upon their oath say, that the said D. V., and divers other persons, to the jurors aforesaid as yet unknown, on instant, at the parish of aforesaid, in the county aforesaid, being riotously, tumultuously, seditiously and unlawfully assembled together, in open breach of the public peace, and terror of His Majesty's good subjects, and having violently, tumultuously and unlawfully assaulted and battered the dwelling-house of R. R. of the said parish, victualler, with stones, bricks, clubs and other instruments, with intent to demolish and pull down the said house ; and having likewise in a riotous, tumultuous and unlawful manner, assaulted the person of the said R. R. and other persons, then being in the said house, with stones and bricks, and thereby put both him the said R. R., and the said other persons then in the said house, in great peril and danger of their lives, and he the said R. R , or some other person then in the said house, having caused the proclamation appointed by an act of parliament, made in the the first year of the reign of His late Majesty king George the first, intituled, " An act for preventing tumults and riotous assemblies, &c." to be read to them. And TO OFFICE OF CORONER. 545 that the said D. V. and the other persons unknown, so tumultuously, riotously, seditiously and unlawfully then and there assembled and gathered together, not dispersing themselves according to the tenor of the said proclamation, but riotously, tnmultuously, seditiously and unlawfully continuing together, in contempt of the said law, and likewise continuing to assault the said house with stones, bricks, clubs and other instruments, he the said R. R., hi defence of himself, and for the preservation of his OAvn life, and of the lives of the said several other persons then and there being in the house, and also for preventing the destruction of his house and loss of his goods and chattels, a certain gun called a blunderbuss, of the value of 5 s. charged with gunpowder, and several leaden bullets, at, to and against the said D. V., and the said other persons unknown, so riotously, tumultuously, seditiously and un- lawfully then and there assembled together, did discharge and shoot oft'. And that it so happened that one of the said bullets so shot out of the said blunderbuss by him the said R. R. as aforesaid, did give unto him the said D. V. one mortal wound in and upon the left side of his body, near the left pap, of the length of one inch and depth of six inches, of which said mortal wound he the said D. V. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. R. in defence of himself and properti/, him the said D. V. in manner and by the means aforesaid did kill. In witness, &c. Justifiable Homicide. That the said T. B. with a certain other man to the justifiable jurors aforesaid at present unknown, on in the year against a street aforesaid, with force and arms, at the parish of robber, in the county aforesaid, in and upon R. B. esq. in a certain postchaise and in the king's highway then and there being, feloniously did make an assault ; and him the said R. B. in bodily fear and danger of his life did then and there put, and a gold watch and some silver monies of the goods, chattels and monies of him the said R. B. from the person and against the will of the said R. B. in the king's highway aforesaid, then and there feloniously did steal, take and carry away, against the peace of our said lord the king, his crown and dignity. And the jurors afore- said, upon their oath aforesaid, do say, that after the said T. B. and the said man unknown, had done and com- mitted the felony and robbery aforesaid, they the said T. B. and man unknown, did then and there endeavour to fly and escape for the same ; whereupon the said R. B. together with E. H. and R. H. (state tvhether coachman, postboj/, N N •'^^G APPENDIX OF FORMS or other servant) driving the said chaise, (and at the time of the committing the felony and robbery aforesaid were then and there driving the said postchaise, and forcibly and unlawfully compelled to stand therewith during the committing the same felony and robbery) and also with certain patrol or other persons to the said jurors unknown, called in and taken to their assistance, did then and there pursue and endeavour to take and apprehend the said T. B. and man unknown, for the doing and com- mitting of the said felony and robbery. And that the said T. B. in such pursuit was overtaken by them, to wit, at the parish and in the county aforesaid, and they the said E. B., E. H. R. H. and the said persons miknown, did then and there lawfully and peaceably en- deavour to take and apprehend the said T. B. who was then and there peaceably required to surrender himself, in order to be brought to justice for the same felony and robbery ; but the said T. B. to prevent his being taken and apprehended, did then and there, with a pistol loaded with gunpowder and a leaden bullet, which he the said T. B. then and there had and held in his right hand, menace and threaten to shoot the first man that should attempt to seize him the said T. B. and the said T B. did then and there refuse to surrender himself, and did obstinately and unlawfully stand upon his defence in open defiance of the laws of this realm. And that upon such endeavour to take and apprehend the said T. B. he the said T. B. did then and there discharge and shoot off the said pistol so loaded with gunpowder, and a leaden bullet as aforesaid, at and against him the said And that on the said T. Zj's continuing obstinately and unlawfully to resist, and also refusing to surrender himself for public justice, they the said R. B. E. H. and R. H., in order to take and apprehend the said 7'. B. to be brought to justice for the said felony and robbery, and in order to oblige the said T. B. to surrender himself for the purposes aforesaid, did then and there, justiJiahJy and oj inevitable necessity, attack and assault the said T. B., by reason whereof the said T. B. did then and there receive, in such his obstinate and un- lawful defence, and before he could be taken and appre- hended, divers mortal wounds and bruises in and upon his head, breast, belly and left-arm, of which said mortal wounds and bruises he the said T. B. at the parish afore- said, in the county aforesaid, did languish, and languishing did live. And that after the said T. B. was so wounded and bruised as aforesaid, he the said T. B. was then and there taken and apprehended, and on the day and year last mentioned was lawfully committed to the prison aforesaid, at the said parish of in the county TO OFFICE OF CORONER. -54:7 aforesaid, and of such mortal wounds and bruises did then and there also hmguii^h, and languishing did live ; on which said day of in the year aforesaid, within the prison aforesaid, in the parish and county last mentioned, he the said T. B. of the mortal wounds and bruises aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. B. E. H. and R. H. him the said T. B. in manner and by the means aforesaid, in the pursuit of justice, of inevitable necessity and jiistifiably, did kill and slay. In witness, Sec. Chance 3Iedley. That C. D. late of the parish aforesaid, in the county chance medley aforesaid, labourer, on at the parish and in the by shooting. county aforesaid, a certain gun, of the value of \os. then and there charged with gunpowder and a leaden bullet, which he the said C. D. then and there had and held in both his hands, then and there casually and by misfortune, and against the will of him the said C. D. was discharged and shot off. And that the said C. D. with the leaden bullet aforesaid, then and there discharged and shot out of the said gun, by the force of the gunpowder aforesaid, him the said A. B. in and upon the left breast of him the said A. B. casually, by misfortune, and against the will of him the said C Z). did then and there strike and penetrate, giving unto him the said A. B. then and there, with the bullet aforesaid, out of the gun aforesaid so as aforesaid shot off and discharged by the force of the said gunpowder, in and upon the said left breast of him the said A. B. one mortal wound, of the breadth of one inch and of the depth of three inches, of which said mortal wound he the said A, B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said A. B. in manner and by the means aforesaid, casual!// and by misfortune, and against the xvill of him the said C. D. did kill and slay ; but what goods or chattels the said C. D. had at the time of the killing and slaying by misfortune as aforesaid the said jurors know not. In witness, &c. That the said A. B. and one T. T. on being By a knife. infants under the age of twelve years, and foremast lads on board of a certain ship called the then lying at her moorings in the river to wit, at in the county of and then and there being in the peace of God and of our said sovereign lord the king, and in friendship, and wantonly and in play struggling together, and then and there both falling to the ground, it so hap- N N 2 518 Shooting by one in a deli- APPENDIX OF FOEMS pened that casually and by misfortune, and against the will of him the said T. T. he the said A. B. then and there fell upon the point of a certain open clasp knife, of no value, which he the said T. T. then and there had and held in his right-hand, by means of which said falling he the said A. B. did then and there casually, by misfortune, and against the will of him the said 1\ T. receive one mortal wound in and upon the right breast of him the said A. B, of the breadth of one inch and depth of three inches, of which said mortal wound he the said A. B. from the said day of in the year aforesaid, until the day of in the same year, at aforesaid, in the county of aforesaid, and also at the said parish of in the said county of to wit, in the hospital there, did languish, and languishing did live, on which said day of in the year aforesaid, he the said /I. B. at the hospital afore- said, in the parish and county aforesaid, of the mortal wound aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, casually and by mis- fortune, and against the will of him the said T. T. did come to his death, and not otherwise. In witness, &c. Killing hy a Lunatic. That the said A. B. " labouring under a grievous disease " of body, to wit, a fever, and by reason of the violence of " the said disease, being delirious and out of his mind," on at the parish and in the county aforesaid, a cer- tain pistol, charged with gunpowder and a leaden bullet, which he the said A. B. then and there had and held in his right hand, to and against the head of him the said A. B. " so delirious and out of his tnind as ajhresaid" did then and there shoot off and discharge, by means whereof he the said A. B. did then and there give unto himself, " so delirious and out of his mind aforesaid," with the leaden bullet aforesaid, so discharged and shot out of the pistol aforesaid, by the force of the gunpowder aforesaid, in and upon the head of him the said A. B. one mortal wound, of the breadth of one inch and depth of four inches, of which said mortal wound he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. " bei7ig " delirious and out of his mind as aforesaid, by reason of the ^'■fo.ver aforesaid," in manner and by the means aforesaid, did kill himself. In witness, dc. If the death be occasioned by any distraction of the mind, and not by disease of the body, instead of the words TO OFFICE OF CORONER. 549 above comma'd and printed in italics, you say, " not being " of sound mind, memory and understanding, but lunatic " and distracted ;' and this difference it is necessary to remember. That the said A. B. " not being of sound xhrowinff out " mind, memory and understanding, but lunatic and dis- of a window. tracted," on from and out of a certain one pair of stairs window, then and there being in the chamber or apartment of him the said A. B. in the dwelling-house of C. D. situate in street, in the parish and county aforesaid, did violently cast and throw himself to the ground, to and against the stone-pavement of the yard belonging to the said dwelling-house, by means of which said casting and throwing he the said jL B. did then and there receive one mortal wound on the upper part of the head of him the said A. B. of which said mortal wound he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, 7iot being of sound mind, memory and understanding, but lunatic and distracted, did kill himself. In witness, &Ct That the said A. B. " not being of sound mind, memory Lunatic shoot- and understanding, but lunatic and distracted," on ing himself. at the parish and in the county aforesaid, a certain pistol charged with gunpowder and a leaden bullet, which he the said A. B. then and there had and held in his right hand, to and against the head of him the said A. B. did then and there shoot off and discharge, by means w hereof he the said A. B. did then and there give unto himself, with the leaden bullet aforesaid, so discharged and shot out of the said pistol aforesaid, by the force of the gun- powder aforesaid, in and upon the head of him the said A. B. one mortal wound, of the breadth of one inch and of the depth of three inches, of which said mortal wound he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. " not being of sound mind, memory " and understanding, but lunatic and distracted," in man- ner and by the means aforesaid, did kill himself. In wit- ness, &c. That the said A. B. " labouring under a grievous disease bv cutting his " of body, to wit, the stone in the bladder, and by reason tlnoat in a " of the violence of the said disease being delirious, and out delirium. " of his mmd," on at the parish and in the county aforesaid, in the dwelling-house of C. D. there situate, with a certain razor, made of iron and steel, which he the said A. B. then and there had and held in his right hand, the N N 3 550 APPENDIX OF FORMS throat or gullet of him the said A. B. did then and there strike, stab and penetrate, thereby then and there giving unto himself the said A. B. so being delirious and out of his mind as aforesaid, with the razor aforesaid, in and upon the throat or gullet of him the said A. B. one mortal wound, of the length of three inches and of the depth of one inch, of which said mortal wound he the said A. B. then and there instantly died. And so the jurors afore- said, upon their oath aforesaid, do say, that the said A. B. by reason of the disease aforesaid, being delirious and out of his mind as aforesaid, in manner and by the means aforesaid, did kill himself. In witness, &c. Hanging by That the said A. B. not being of sound mind, memory a lunatic. and understanding, but lunatic and distracted, on at the parish aforesaid, in the county aforesaid, one end of a certain piece of small cord unto an iron staple fastened into the wainscot, in the lodging-room or apartment of him the said A. B. in the dwelling-house of C. D. situate and being, in the said parish and county, and the other end thereof about his own neck, did fix, tie and fasten, and therewith did then and there hang, suffocate and strangle himself, of which said hanging, suffocation and strangling he the said A. B. then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. not being of sound mind, memory and understanding, but lunatic and distracted, in manner and by the means aforesaid, did kill himself. In witness, &c. Falling upon That the said A. P. not being of sound mind, memory his sword. ^^d understanding, but lunatic and distracted, on at the parish and in the county aforesaid, on the drawn sword of him the said A. P. in the study of him the said A. P. in his own dwelling-house there situate, did cast and throw himself: by means whereof he the said A. P. not being of sound mind, memory and understanding, but lunatic and distracted, did then and there give unto him- self, by the sword aforesaid, in and upon the belly of him the said A. P. near the navel, one mortal wound, of the breadth of one inch and of the depth of six inches, of which mortal wound he the said A. P. then and there in- stantly died. And so the jurors aforesaid, &c. [as before.'] In witness, &c. Accidents^ Casualties., &c. as well on Land as by Water. By a cart. That W. C. late of the parish aforesaid, in the county aforesaid, carman, on at the parish and in the county aforesaid, into a certain public street or highway there called the king's highway, being negligentli^ driving TO OFFICE OF CORONER. -551 a certain cart drawn by three horses, and loaded with twelve sacks of coals, it so happened that A. P. being in the street and highway as aforesaid, was then and there accidentally, casually and by misfortune, forced to the ground by the foremost horse of the said three horses so drawing the said cart, and the said cart so loaded as afore- said was then and there, by the said horses, violently and forcibly drawn to and against the said A. P. and the off- wheel of the said cart so drawn and loaded as aforesaid did then and there, accidentally, casually and by misfortune, violently go upon and pass over the breast and body of the said A. P. by means whereof she the said A. P. from the Aveight and pressure of the said cart so loaded and drawn as aforesaid, did then and there receive one mortal bruise in and upon her said breast and body, of which said mortal bruise she the said /l. P. then and there instantly died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said A. P. in manner and by the means aforesaid, accidentally, casually and by misfortune, came to her death, and not otherwise. And that the said cart, horses and loading were the cause of the death of the said A. P. and that the said coals are of the value of 30 s. the said cart of the value of 3 1 and the said three horses of the price of 5 /. amounting in the whole to the sum of 9/. 105. of lawful money of Great Britain, and are the property and in the possession of D. E. of the parish and county aforesaid, coal merchant, or of his assigns. In witness whereof, &c. That the said A. P. on at the hamlet of By a cavt- in the parish and county aforesaid., being carefully driving wheel. a certain empty cart, drawn by one horse>. in a private road leading into a certain field called or known by the name of there situate, it so happened that the said A. P. then and there accidentally, casually and by mis- fortune, slipped in his feet, and fell to the ground across the cart-rut then and there being in the said private road, near unto the near-wheel of the said cart, by reason whereof the said near-wheel of the said cart did then and there go upon and pass over the body and breast of him the said A. P. by means whereof he the said A, P. did then and there accidentally, casually and by misfortune, receive one mor- tal bruise on his said breast, of which said mortal bruise he the said A. P. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do sa}^ that the said A. P. in manner and by the means aforesaid, accidentally, casually and by misfortune, came to his death, and not otherwise. And that the said near-wheel of the said cart so ckawn as aforesaid was moving to the death of N N 4 552 Falling into an area. Drowning by falling into a fit. By the over- turning of a chaise. APPENDIX OF FORMS the said A. P. and is of the value of 105. and the property and in the possession of C D. of the parish and county aforesaid, yeoman, or of his assigns. In witness, &c. That the said A. P. on at the parish aforesaid, in the county aforesaid, being at work in a certain yard belonging to a house situate in there, at the height of one story from the area of a cellar thereto be- longing, and the said A. P. then and there stepping upon a stone then and there hanging over the brick-work, it so happened that the said stone, of no value, accidentally, casually and by misfortune, gave way, and fell to the ground, by reason whereof he the said A. P. did then and there accidentally, casually and by misfortune, fall from the said yard upon the stone pavement of the said area, and by means thereof did then and there receive, by the fall aforesaid, one mortal bruise and contusion on the crown of his head, of which said mortal bruise and contusion he the said A. P. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. P. in manner and by the means aforesaid, acci- dentally, casually and by misfortune, came to his death, and not otherwise. In witness, &c. That the said A. B. on being an in-patient in a certain hospital called situate in the parish and county aforesaid, and under cure there for under which he the said A. B. then and there laboured and languished. And the said /i. B. by the advice and direc- tions of the physicians to the said infirmary, being to dip and wash himself in the bath then and there belonging to the said infirmary, it so happened that the said A. B. after such dipping and washing of himself as aforesaid, and as he was then and there near the side of the said bath, he the said A. B. was then and there suddenly seized with a violent falling fit, and by reason thereof then and there, accidentally, casually and by misfortune, fell into the said bath, and in the waters thereof was then and there suffo- cated and drowned, of which said suffocation and drowning he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, acci- dentally, casually and by misfortune, came to his death, and not otherwise. In witness, &c. That the said A. B. on at the parish of in the said county of being in a certain chaise there, driving a certain bay gelding, then and there draw- ing the same, it so happened that the said A. B. was then and there casually, accidentally and by misfortune, overturned and violently thrown out of the said chaise to TO OFFICE OF CORONER. 553 and against the ground, and by means thereof did then and there receive a mortal fracture in and upon the hinder part of the head of him the said A. B. of which said mor- tal fracture he the said A. B. from the said day of in the year aforesaid until the day of in the same year, at the parish and county last mentioned, and also at the parish of in the same county, to wit, in a certain hospital there, called did languish, and languishing did live ; on which said day of in the year aforesaid, in the hospital aforesaid, in the said parish last mentioned, and county aforesaid, he the said A. B. of the mortal fracture aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, accidentally, casually and by misfortune, came to his death, and not otherwise. And that the said chaise and horse were moving to the death of the said A. B. and that the said chaise is of the value of 5 / and the said bay gelding of the price of 10/. and remain in the custody of C. D. of the parish first mentioned, in the county aforesaid, the executor of the last will and testament of the said A. B. whose property they were. In witness, &c. That on at the parish aforesaid, in the county By a fire. aforesaid, the warehouse of C. D. situate in the same parish and county, casually took fire, and the said A. B. being then and there present, and aiding and assisting to extinguish the said fire, it so happened that a piece of tim- ber, by the force and violence of the said fire, then and there accidentally, casually and by misfortune, fell from the top of the said warehouse in and upon the head of him the said A. B.hy reason whereof he the said A. B. then and there received a mortal fracture on the head of him the said A. B. of which HTiOrtal fracture he the said A.B. from the said day of in the year aforesaid, until the day of the same month, in the same year, there and also at a certain hospital situate in the parish aforesaid, in the county aforesaid, called the infirmary, did lan- guish, and languishing did live ; on which said day of in the year aforesaid, at the hospital aforesaid, in the parish and county aforesaid, he the said A. B. of the mortal fracture aforesaid did die. And so the jurors afore- said, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, accidentally, casually and by misfortune, came to his death, and not otherwise ; and that the said piece of timber was the occa- sion of the death of the said A. B. and is of the value of 12 (]., and the property and in the possession of the said C D. or of his assigns, &c. In witness, &c. 554 Drowned by bathing. By being burnt. By a difficult birth and hard labour. Natural death. APPENDIX OF FORMS That the said A. B. on aforesaid, at the parish and in the county aforesaid, to wit, at going into the river Thames, there to bathe himself, it so happened that accidentally, casually, and by misfortune, he the said A. B. was in the waters of the said river then and there suffocated and drowned ; of which said suffocation and drowning he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means afore- said, accidentally, casually, and by misfortune, came to his death, and not otherwise. In witness, &c. That the said A. B. being of the age of ninety years, and weak and infirm in body, on being alone in her room or apartment, in a certain alms-house, situate in the parish and county aforesaid, it so happened that she the said A. B. as she was then and there sitting by her fire- side, drying of a linen apron, the petticoat of her the said A. B. which she the said A. B. then and there had on her body, accidentally, casually, and by misfortune, took fire, by reason whereof, and from the smoke and flame arising from the said fire, she the said A. B. was then and there suffocated and burnt, of which said suffocation and burn- ing she the said A. B. then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, accident- ally, casually and by misfortune, came to her death, and not otherwise. In witness, &c. That the said A. B. on at the parish aforesaid, in the county aforesaid, being big with a certain female child, afterwards, to wit, on the same day and year, at the parish and county aforesaid, after a violent and lingering pain and hard labour, with great difficulty did bring forth the said female child alive. And the said A. B. from the said day of in the year aforesaid, until the day of the same month, in the same year, at the parish and in the county aforesaid, of the weakness and disorder occasioned by such violent and lingering pain, difficult birth, and hard labour aforesaid, did languish and languishing did live ; on which said day of in the year aforesaid, at the parish and in the county aforesaid, she the said A. B. of the weakness and disorder aforesaid, occasioned by the hard labour and difficult birth aforesaid, did die. And so the jurors afore- said, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, came to her death, and not otherwise. In witness, &c. That the said A. B. on and for a long time before, at the parish and in the county aforesaid, did labour and Ian- TO OFFICE OF CORONER. 555 guish under a grievous disease of body, to wit, an asthma ; and that on the said day of in the year afore- said, at the parish aforesaid, in the county aforesaid, she the said A. B. departed this hfe by the visitation of God in a natural way, to wit, of the disease and distemper afore- said, and not by any hurt or injury received from any person, to the knowledge of the said jurors. In witness, &c. That the said A. B. on at the parish and in the Found dead county aforesaid, to wit, in a certain bi-ickfield there, called was found dead. That he the said A. B. for some time before had been very ailing and infirm, and not able to work ; that he had no marks of violence appearing on his body, and departed this life by the visi- tation of God in a natural way, to wit, of his said ailment and infirmity, and not by any violent means whatsoever, to the knowledge of the said jurors. In witness, &c. [As before.] That the said man unknown, on at the parish and in the county aforesaid, to wit, in a cer- tain wood there, called was found dead. That the said man unknown had no marks of violence appearing on his body ; but how or by what means he came to his death no evidence thereof doth appear to the said jurors. In witness, &c. Stranger found dead. That the said A. B. on aforesaid, being in an old uninhabited house situate in in the parish and county aforesaid, unlawfully taking away of the timber there, it so happened that the said house then and there sunk and fell in, by reason whereof she the said A. B. accidentally, casually and by misfortune, was under the ruins and mate- rials thereof then and there suffocated and smothered, of which said suffocation and smothering she the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by means aforesaid, accidentally, casually and by misfortune, came to her death, and not otherwise. And that the materials of the said house are of the value of 20 5. and the property and in the possession of C. D. of the parish and county aforesaid, gent, or of his assigns. In witness, &c. That the said ^. B. on at the parish and in the county aforesaid, departed this life by excessive drinking, and not from any hurt, injury or violence done or com- mitted by the said C. D. or any other person whatsoever, to the knowledge of the said jurors. In witness, &c. That the said man unknown, on was found dead in a ditch, in a certain lane, situated in the said parish and (o) Vid, ex parte Carruthers, 2 M. & Ry. 397, and supra. Smothered by the fall of an old house (a). By excessive drinking. Starved to death. 55G Death in prison. Fo'ind drowned. Falling out of a boat and drowned. Drowned by the overturn- incT of a boat. APPENDIX OF FORMS county, commonly called that the said man unknown had no marks of violence appearing on his body, but died through want and the inclemency of the weather, and by no violent ways or means whatsoever, to the know- ledge of the said jurors. In witness, &c. That the said A. B. being a prisoner in prison aforesaid, in the parish and county aforesaid, at prison aforesaid, departed this life by the visitation of God, in a natural v.ay, to wit, of a fever, and not otherwise. In witness, &c. That the said man unknown, on was found drowned and suffocated in the river to wit, at in the parish and county aforesaid : that the said man un- known had no marks of violence appearing on his body, but how or by what means he became drowned and suffocated no evidence thereof appear to the jurors. In witness, &:c. That the said A. B. on being in a certain boat belonging to a certain ship, called then lying at in the precinct and county aforesaid, in order to go on shore, and then and there endeavouring, with a certain hook, coiumonly called a ship's hook, to force the said boat from the side of the ship, it so happened that the said hook then and there slipt aside, by reason whereof he the said A. B. then and there, accidentally, casually and by misfortune, fell out of the said boat into the river and in the waters thereof was then and there suffocated and drowned, of which said suffocation and drowning he the said A. B. then and there died. And so the jurors afore- said, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, accidentally, casu- ally and by misfortune, came to his death, and not other- wise ; and that the said ship's hook and boat did occasion the death of the said A. B. and are of the value of los. and the property and in the possession of C. D. master of the said ship the or of his assigns. In witness, &c. That the said A. B. on being ordered by the said C. D. his said master, to fasten his said master's boat to her moorings or road in the river in the parish and county aforesaid, instead thereof did then and there pin the same to a pile under one of the arches of bridge, in the parish and county aforesaid, and in the said boat he the said A. B. then and there laid himself dov.n to sleep : and it so happened, that by the flowing in of th.e tide the said boat (he the said A. B. then and there being asleep in the same) was then and there forced athwart the said arch, or pinned down and overset, and turned keel up- wards, by means whereof he the said A. B. was then and TO OrFiCE OF CORONER. 5-57 there accidentally, casually and by misfortune, thrown out of the said boat into the said river and in the waters thereof was then and there suifocated and drowned, of which said suffocation and drowning he the said A. B. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B. in manner and by the means aforesaid, accidentally, casually and by misfortune, came to his death, and not otherwise. And that the said boat was the cause of the death of the said A. B. and is of the value of 20 s. and the property and in the possession of the said C. D. the said master of the said A. B. or of his assigns. In witness, &.c. To the 3Iinister and Churchwardens of the Parish of in the County of and to all others lohom these may concern. "1 Whereas I, with my inquest, the day and year Warrant to to wit. J hereunder written, have taken a view of the bury after body of J^. D. who, not being of sound mind, memory and a view, understanding, but lunatic and distracted, shot himself, [or agreeably to the finding of the jury ^ who now lies dead in your parish, and have proceeded therein according to law : These are therefore to certify that you may lawfully permit the body of the said J. D. to be buried ; and for so doing this shall be your warrant. Given under my hand and seal, the day of Coroner. To the Churchioardens and Constables of the Parish of in the County of "1 Whereas by an inquisition taken before me, one Warrant to to Avit. J of His Majesty's coroners for the said county bury ayi/o de of this day of in the «e alter inquisl- year of the reign of his present Majesty '°'^ ^^'^ ' at the parish of in the said county of on view of the body of J. D., then and there lying dead ; the jurors in the said inquisition named have found that the said J. D. feloniously, wilfully, and of his malice forethought, killed and murdered himself [as the finding may he~\. These are therefore, by virtue of my office, to will and require you forthwith to cause the body of the said oT. Z). to be buried privately in some burial ground, be- tween the hours of nine and twelve at night, and within twenty four hours next following, without any performance of the rites of Christian burial, according to the statute in such case made and provided ; and thereof to certify me the place : and for your so doing this is your wan-ant. Given under my hand and seal, this day of Coroner. 558 The return. Warrant to bury without a view, where no effectual inquest can be taken. Warrant to bury without Warrant to bury without a view where body found drowned. APPENDIX OF FORMS N. B. This is not to be directed to the minister, as no service is to be performed ; it may be directed to consta- bles only. By virtue of the within warrant to us directed, we have caused the body within named to be buried in the burial ground of in the said parish [as the fact may he\. r* rjk Churchwardens. /. Z). Constable. To the Ministers and. Churchwardens of the Parish of in the County of 1 Whereas I am credibly informed, that on the to wit. J day of the body of a new- born male child was found dead in a coffin, in the church- yard of the parish of in the said county of and that there is not any evidence to be found to make appear to a jury either by what means the said male child was there laid, or who was the mother thereof, or how it came to his death, nor are there any marks of violence appearing on its body. These are therefore to certify, that in ease of the county charge, you may permit the the body of the said new-born male child to he buried ; and for your so doing this is your warrant. Given under my hand and seal, this day of Coroner. To the Ministers and Churchwardens of the Parish of in the County of } Whereas I am credibly informed, that on the day of instant, A. B. died suddenly in the street, to wit, in [_name the street,'] the parish of in the said county, as supposed by a fit of an apoplexy, or other sudden visitation of God ; and that he came not to his death by any violent means or manner whatsoever. These are therefore to certify, that in ease of the county charge, you may permit the body of the said A. B. to be buried ; and for your so doing this is your warrant. Given under my hand and seal, this day of Coroner. To the Ministers and Churchwardens of the Parish of in the County of "I Whereas I am credibly informed, that on the to wit. / day of the body of a man unknown was taken up dead and floating in the river in the parish of in the said county, and that TO OFFICE OF CORONER. 559 no marks of violence do appear on the body of the said man unknown ; and whereas there is no evidence to make appear to a jury how or by what means the said man un- known came to his death : These are therefore to certify, that in ease of the county charge, you may permit the body of the said man unknown to be buried ; and for your so doing this is your warrant. Given under my hand and seal, this day of G. H. Coroner. To the Ministers, Churchwardens and Overseers of the Pai'ish of in the County of "(^Whereas complaint hath been made unto me, Warrant to to wit. J one of His Majesty's coroners for the said take up a body county of that on the day of the body of interred. one G. R. was privately and secretly buried in your parish, in the said county : and that the said G. R. died not of a natural but violent death : And whereas no notice of the vio- lent death of the said G. R. hath been given to either of His Majesty's coroners for the said county, whereby, on His Majesty's behalf, an inquisition might have been taken on view of the body of the said G. R. before his interment, as by law is required. These are therefore, by virtue of my office, in His Majesty's name, to charge and command you, that you forthwith cause the body of the said G. R. to be taken up, and safely conveyed to the bone-house in the said parish, that I, with my inquest, may have a view thereof, and proceed therein according to law. Hereof fail not, as you will answer the contrary at your peril. Given under my hand and seal, the day of Coroner. With this warrant the coroner issues his precept to summon a juiy in the usual form. To all Constables and Headhoroughs of the Parish of in the County of and to all others His Majesty's Officers of the Peace within the said County. ."1 Whereas by an inquisition taken before me, one To apprehend to wit. J of His Majesty's coroners for the said county a person for of this day of at the parish of murder. in the said county of on view of the body of G. R., then and there lying dead, one C. D. late of the parish of H. in the said county, stands charged with the wilful murder of the said G. R. These are therefore, by virtue of my office, in His Majesty's name, to charge and command you, and every of you, that you, some or one of you, without delay, do apprehend and bring before 5G0 APPENDIX OF FORMS me, the said coroner, or one of His Majesty's justices of the peace of the said county, the body of the said C. D. of whom you shall have notice, that he may be dealt with according to law. And for your so doing this is your war- rant. Given under my hand and seal, this day of G. H. Coroner. Wanant of comniitment to goal for murder. Warrant of detainer for muider. To the Constables, Headhoroughs, and other His Majesty's Officers of the Peace for the County of and also to the Keeijer of His Majesty s Gaol of -'l^ Whereas by an inquisition taken before me, one to viit. / of His Majesty's coroners for the said county of the day and year hereunder mentioned, on view of the body of R. L., lying dead at the parish of in the said county ; I. K. late of the parish of C. in the said county, labourer, stands charged with the wilful murder of the said R. L. These are therefore, by virtue of my office, in His Majesty's name, to charge and com- mand you, or any of you the under-written constables, headhoroughs, and other His INlajcstj^'s officers of the peace for the said county, forthwith safely to convey the body of the said /. K. to His Majesty's gaol of and safely to deliver the same to the keeper of the said gaol : and these are likewise, by virtue of my said office, in His Majesty's name, to will and require you, the said keeper, to receive the body of the said /. A', into your cus- tody, and him safely to keep in the said gaol until he shall be thence discharged by due course of law. And for your so doing this is your ivarrant. Given under my hand and seal, the day of Coroner. To the Keeper of His Majesty's Gaol of These "1 Whereas you have in your custody the body of to wit. J C. D. And whereas by an inquisition taken before me, one of His Majesfy^s coroners for the said county of the day and year hereunder written, at the parish of in the said county, on view of the body of A. B. then and there lying dead; he the said C D. stands charged with the wilful murder of the said A. B. These are therefore, in His Majesty's name, by virtue of my office, to chari^e and command you to detain and keep in your custody the body of the said C. D. until he shall be thence discharged by due course of law. And for your so TO OFFICF. OF CORONER. 561 doing this is your warrant. Given under my hand and seal, this day of Coroner. It is usual for the churchwardens to get a surgeon to attend the coroner; if not, the coroner may issue his summons for that purpose. To A. P. 1^ Whereas I am credibly informed you can give ^'i[^]!^°'\o ""^ to wit. J evidence, on behalf or our sovereign lord the appear and king, touching the death o^ A. P. now lying dead in the give evidence. parish of C in the county of These are therefore, by virtue of my office, in His Majesty's name, to charge and command you personally to be and appear before me, at the dwelling-house of /. R., known by the sign of in the said parish of C. aforesaid, at of the clock in the evening, on the day of instant, then and there to give evidence, and be examined, on His Majesty's behalf, before me and my inquest, touching the premises. Hereof fail not, as you will answer the contrary at your peril. Given under my hand and seal, this day Coroner. To all Constables, Headboroughs, and other His Majesty's Officers of the Peace in and for the County of ,1 Whereas I have received credible information to wit. / that A. P. of the parish of C in the said county, surgeon, can give evidence, on behalf of our sovereign lord the king, touching the death of C. D. now lying dead in the said parish of C. in the county aforesaid ; and whereas the said A. P. (having been duly summoned to appear and give evidence before me and my inquest, touching the premises, at the time and place in the said summons specified, of which oath hath been duly made before me) hath refused and neglected so to do, to the great hindrance and delay of justice ; these are therefore, by virtue of my office, in His Majesty's name, to charge and command you, or one of you, without delay, to ap- prehend and bring before me, one of His Majesty's coroners for the said county, now sitting at the parish aforesaid, by virtue of my said office, the body of the said C D. that he may be dealt with according to law. And for your so doing this is your warrant. Given under my hand and seal, the day of Coroner. Warrant fo contempt against a wit • ness for not appearing to give evidence. 60-2 Warrant to commit a wit- ness refusing to give evi- dence after being taken for contempt of summons. APPENDIX OF FORMS The coroner may direct this warrant to any one specially, by adding, " And also to /. D. my special officer for this purpose." To the Constahles, Headhoronghs, and other His Ma- jesty's Officers of the Peace in and for the county of and also to the Keeper of the Gaol in the said County. \ Whereas I heretofore issued my summons, to wit. J under my hand, directed to A. P. of, &c. surgeon, requiring his personal appearance before me, then and now one of His Majesty's coroners for the said county of at the time and place therein mentioned, to give evidence, and be examined on His Majesty's behalf touching the death of C. D. then and there lying dead ; of the per- sonal service of which said summons, oath hath been duly made before me : And whereas the said A. P having neg- lected and refused to appear, pursuant to the contents of the said summons, I thereupon afterwards issued my war- rant, under my hand and seal, in order that the said A. P. by virtue thereof, might be apprehended and brought before me to answer the premises : And whereas the said A. P. in pursuance thereof, hath been apprehended and brought before me, now duly sitting by virtue of my office, and hath been duly required to give evidence and be examined before me and my inquest, on His said Majesty's behalf, touching the death of the said C. D , yet the said A. P. notwithstanding hath absolutely and wilfully re- fused, and still doth wilfully and absolutely refuse, to give evidence and be examined touching the premises, or to give sufficient I'eason for his refusal, in wilful and open violation and delay of justice ; these are therefore, by virtue of my office, in His Majesty's name, to charge and command you, or one of you, the said constables, head- boroughs, and other His Majesty's officers of the peace in and for the said county of forthwith to convey the body of the said A. P. to the gaol of in the said county, and safely to deliver the same to the keeper of the said prison there ; and these are likewise, by virtue of my said office, in His Majesty's name, to will and require you the said keeper to receive the body of the said A. P. into your custody, and him safely to keep in the prison, until he shall consent to give his evidence, and be examined before me and my inquest, on His Majesty's behalf, touching the death of the said C. D., or until he shall be from thence otherwise discharged by due course of law. And for your TO OI'lICE OF CORO.Nl'.H. 5C3 SO doing this is your warrant. Given under my hand and seal, this day of Coroner. To the Constables, Headboroughs, and others His Majestt/s Officers of the Peace in and for the County of and also to the Keeper of the Gaol in the said County. 1 Whereas ^. B, of, &c. surgeon, is a material Warrant of to wit. / witness on the behalf of our sovereign lord the ^°'^^.f^^^'"/ king against /. P. late of the parish aforesaid, in the county °ef^, Jn'g'To^ign aforesaid, labourer, now charged before me, one of His his information. Majesty's coroners for the county of and my inquest, with the wilful murder of C. D. there now lying dead ; and whereas the said A. B. at this time of my inquiry, (on view of the body of the said C. D. how and by what means he the said C. D. came by his death,) hath personally appeared before me and my said inquest, and on His Majesty's behalf hath given evidence and information on oath touch- ing the premises ; which said information having by me been reduced into writing, and the contents thereof by me, in the presence of the said inquest, openly and truly read to him the said A. B. who doth acknowledge the same to be true, and that the same doth contain the full sub- stance and effect of the evidence by him given before me to my said inquest ; and the said A. B. having by me been requested and desired to sign and set his hand to his said testimony and information, and to acknowledge the same as by law is required, yet notwithstanding the said A. B. hath wilfully and absolutely refused, and still doth wilfully and absolutely refuse so to do, in open defiance of law, and to the great hindrance of the public justice : These are there- fore, by virtue of my office, in His Majesty's name, to charge and connnand you, or one of you, the said constables and headborougs, and others His Majesty's officers of the peace in and for the said county of forthwith to convey the body of the said A. B. to the gaol of in the said county, and safely to deliver the same to the keeper of the said prison there ; and these are likewise, by virtue of my said office, in His Majesty's name, to will and require you the said keeper to receive the body of the said A. B. into your custody, and him safely to keep in prison until he shall duly sign and acknowledge his said informa- tion, or shall be from thence otherwise discharged by due course of law. And for your so doing this is your warrant. Given under my hand and seal, this day of Coroner. o o 2 5U4 APPENDIX OF FORMS Warrant to commit a witness who refuses to enter into a recog- nizance to appear and give evidence at the To the Constables, HeadhoroiighSy and others His 31ajesty's Officers of the Peace in and for the County of and also to the Keeper of the Gaol at in the said County, "1 Wliereas upon an inquisition this day taken to wit. J before me, one of His Majesty's coroners for the county of at the parish o^ A. in the said county, on view of the body of C. D. then and there lying dead, one /. U. late of the parish aforesaid, in the county aforesaid, labourer, was by my inquest then and there sit- ting found guilty of the wilful murder of the said C. D. And whereas one U. P. of the parish and county aforesaid, silversmith, was then and there examined, and gave infor- mation in writing, before me and my inquest, touching the premises, and which said information he the said IJ. P. then and there before me and my inquest duly signed and acknowledged, and by which said information it appears that the said U. P. is a material evidence on His Majesty's behalf against the said /. U. now in custody, and charged by my inquest with the said murder; and the said U. P. having wilfully and absolutely refused to enter into the usual recognizance for liis personal appearance at in and for the said at the next session of gaol deli- very to be holden for the said county of at and then and there to give evidence on His Majesty's behalf against the said /. U., to the great hindrance and delay of justice : These are therefore, by virtue of my office, in His Majesty's name, to charge and command you, or one of you, the said constables and headboroughs, and others His Majesty's officers of the peace in and for the said county, forthwith to convey the body of the said U. P. into your custody, and him safely to keep in the said pri- son until he shall enter into such recognizance before me, or before one of His Majesty's justices of the peace for the said county, for the purpose aforesaid, or in default thereof, until he shall he from thence otherwise discharged by due course of law. And for so doing this is your warrant. Given under my hand and seal this day of Coroner. "I Be it remembered, That I. R. of S^c. yeo- to wit. jman, and E. D. of the same place, dyer, Do severally acknowledge to oive to our sovereign lord the hng the S7cm of foiiy ]x>unds each of lawful money of Great Britain, to be levied on their several goods and chat- ttls, lands and tenements, by way of recognizance, to His TO OFFICE OF CORONER. 5^5 Majesty's use, in case default shall happen to he made in the condition hereunder ivriltcn : The condition of this recognizance is such, that if the Recognizance above-bounden /. R. and E. D. do severally personally to appear at appear at the next session of the peace to be holden at the sessions to in and for the county of and the said ^^^ prosecute. I. R. shall then and there preter, or cause to be preferred, ^o be taken to the grand jury, a bill of indictment against C. D. late on parchment of the said parish and county, labourer, and now in cus- without stamp, tody for the wilful murder of A. B. late of Sec. and that J^'^Ji^^ s^^^-o^g, the said I. R. and E. D. do then and there severally personally appear to give evidence on sucfl bill of indict- ment to the said grand jury ; and in case the said bill of indictment be found by the grand jury a true bill, that then they the said /. R. and E. D. do severally personally appear at the next session of gaol-delivery to be holden for the said county of at And the said /. R. shall then and there prosecute, or cause to be prosecuted, the said C. D. on such indictment : And the said /. R. and E. D. do then and there severally give evidence to the jury that shall pass on the trial of the said C. D. touching the premises : And in case the said bill of indictment shall be returned by the grand jury not found, that then they do severally personally appear at the said session of gaol- delivery to be then and there holden for the said county, and then and there prosecute and give evidence to the jury that shall pass on the trial of the said C. D. upon an inquisition taken before me, one of His Majesty's coroners for the said county of on view of the body of the said A. B. and not depart the court without leave, then this recognizance to be void, otherwise to remain in full force. Taken and acknoivledged this day of Before me, Coroner. E. D.j If a wife be to give evidence, and the husband be not present to enter into a recognizance, the wife is not to be bound in any sum penal, but on pain of imprisonment, as thus : S. the wife of J. S. of, &c. labourer, on pain of imprisonment, in case she shall make default ui such con- dition; and insert her name in such condition. If the husband be present, he is to be bound for the appearance of his wife : in this case insert the wife's name throughout the condition of the recognizance. o o 3 Recognizance by husband for wife's appear- ance, and by master, &C. for appren- tice's appear- ance. 560 APPENDIX OF FORMS If it happen an apprentice or an infant be to give evi- dence, the parent or master is bound in a recognizance for the appearance ; and in this case the parent or master is called the mainpernor of the infant or apprentice, and the condition will be for the infant or apprentice to ap- pear ; for which see the following general precedent : Middlesex : J. P. of the parish of in the said county blacksmith ; 2\ P. of the same parish, victualler ; J. R. of tife same parish, whitesmith, the husband of S. R. ; J. B. of the same parish, haberdasher, the mainpernor of J. J , his apprentice, an infant ; J. S. of the same parish, sword-cutler, the mainpernor of G. S., his son, an infant : Do severally acknowledge to owe to our sovereign lord the king the sum of 40 Z. of lawful money of Great Britain, to be levied on their several goods and chattels, lands and tene- ments, by way of recognizance, to His Majesty's use, in case default shall be made in the condition follow- ing : And S. the wife of -/. P., of the same parish, buckle- maker, on pain of imprisonment, in case she shall make default in such condition. The condition. The condition of this recognizance is such, that if the above-bounden J. P., T. P., S- R., the wife of the said ./. R., J. J., G. S., and S. P. do severally personally ap- pear at the next sessions of the peace to be holden at in and for the county of Middlesex, and then and there give evidence on a bill of indictment to be pre- ferred to the grand jury against JV. T. now at large, for the wilful murder of ,S'. his wife ; and in case the said bill of indictment shall be returned by the grand jury a true bill, dien that they do severally personally appear, at the session of gaol-delivery to be holden for the said county of Middlesex, at Justice Hall in the Old Bailey, London, next after the apprehending or surrender of the said W. T. and then and there severally give evidence to the jury that shall pass on the trial of the said W. T. touching the pre- mises ; and in case the said bill of indictment shall be returned by the grand jury not found, that then they do severally personally appear at such session of gaol deli- very to be then and there holden for the said county, and then and there give evidence to the jury that shall pass upon the trial of the said W. T. upon an inquisition taken TO OFFICE OF CORONER. 5G7 before me, one of His Majesty's coroners for the said county of Middlesex, on view of the body of the said S. T. and not depart the court without leave ; then this recog- nizance to be void, otherwise to be and remain in full force. Taken and acknowledged this day of Coroner. -"I These are to certify, that by an inquisition Coroner's cer- to wit. f taken before me, on view of the body of tificate of C. D. at the parish of C. in the said county of j"™''^ '" ... bearing date the day of instant, the jurors less deo-ree ia in the said inquisition named have found that A. B. justi- cider for bail fiably, and of inevitable necessity, did kill and slay the before justices said C. D. Given under my hand this day of °^ ^^^ peace. Coroner. Or, in defence of himself, and for the safety of his life and property, as against thieves, justifiably, &c. Or, casually and by misfortune, and against the will of the said A. B. (^as in a chance medley.) o o 4 INDEX TO THE OFFICE OF SHERIFF. Tor the OFFICE OF CORONER— see immediately following this Index. A. Page. ACCEDAS AD CURIAM 221 ACCOUNTS of 314 ACCOMPTS. Vide Patents 316 AD QUOD DAMNUM Warrant on Writ of ----- - 352 Inquisition on ------ - ib. ACTIONS BY AND AGAINST SHERIFFS GENERALLY If he levies, though no return made, debt, account or assumpsit Vies - - - - - -130 If he return Jierijeci, may proceed by rule of court or action ------- ib. If tender made on a^.ya. of debt and costs - - 132 Action lies for a year's rent, if landlord gives notice before sale - - - - - - -138 Sheriff may bring an action for his poundage though defendant in gaol - - - - - -115 So for fees on an elegit - - - - -158 Action lies if he returns a rescue on an escape in execution - - - - - - -108 Of actions for false returns of members to parliament 258 Or negligent return - - - - ■■ - ib. Notice of, under 43 Geo. 3, c. 99, s. 70 - - 318 ALIENS 70 AMBASSADORS. See title Jrm/. APPOSAL. See Sherifs Accounts. ARREST ON MESNE PROCESS. Definition of the word arrest - - - - 54 When it is said a man is arrested - - - - ib. None to be arrested for debt but by precept or warrant ---ib. INDEX TO THP: on ice of SUEUIIF. 501) ARREST ON MESNE PROCESS— coh;/«m£y/. Page. The king cannot command one to be arrested by word --------54 Nor for felony, and why - - - - - ib. How an arrest must be ----- 55 {Sheriff cannot break open an outer door to make an arrest -------- ib. Need not in all cases touch the party - - - ib. If he lays hold of defendant's hand out of a window, he may break the house to arrest - - 56 Sheriff bound to execute process out of a court of competent jurisdiction, though erroneous - - ib. But only within his own bailiwick, unless where boundaries are doubtful - - - - ' }^ When sheriff may break open the door of a lodger - ib. Cannot break an outer door - - - - - ib. On a cap. ats. of a common person, sheriff cannot break open house ------ ib. If the door open, and bailiff comes and shows the process, and offers to enter, and the owner shuts the door, the officer, giving notice, &c., may break - ib. Cannot enter with swords drawn - - - "57 Nor by craft ------- ib. The privilege extends to owner only, and not to a stranger - - - - - - --ib. If a stranger fly into the house of another sheriff may enter ------- ib. Where the king is party, the theriff may break open the doors ------- ib. But must first signify the cause - - - " 1^- So on a cap. ult. though on mesne process - - ib. So where the king hath interest - - - - ib. Kthe sheriff's bailiff enter and the owner locks him in, sheriff may enter to release - - - - 58 If one escapes after arrest, sheriff may break open door ib. Cannot break in at the window of a house - - ib. If resisted, and the party making resistance is killed, the officer is justified jl^' But it is murder to kill the officer - - - - ib. Defendant apprehensive of arrest, flieth, the officer pursueth, and in the pursuit killeth him, it is murder ib. Arrest in the night as well as the day is lawful - ib. After an arrest on mesne process bailiff may let pri- soner go, provided he has him at the return -day ib. But otherwise on an execution _ - - ib. If he voluntarily permit him to go, though for a minute, sheriff cannot retake him - - -58 And if he does, false imprisonment does not lie - ib. Cannot arrest after the return of the writ - - 59 570 INDEX TO THE ARREST ON MESNE F110CE8S— continued. Page. Of the Warrant on the Writ. Sheriff never executes the warrant himself - - ib. Warrants must be according to the writ, and in the name of the high sheriff - - - - - ib. No warrant to be made out without the writ - - ib. And warrants to have the day and year set down thereon -------- ib. Every warraHt to have the name of the attorney sub- scribed -------- ib. But not doing it shall not vitiate the writ - - ib. Warrant must be had before the arrest - - - 60 How warrant in K. B. ought to be made to appear - ib. How the warrant shall be in C. P. - - - ib. Exchequer ...---- ib. Chancery -------- ib. Need not be shown unless demanded - - - ib. But if demand made, the warrant must be produced ib. If a warrant is altered, it is illegal, and the arrest void ib. If a warrant be directed to two, one may execute - ib. Sunday. Process not to be served, or arrest made, on a Sunday ib. May take prisoner on a Sunday if he escape - - 6i May be taken on an escape-warrant - - - ib. If arrest be made on Saturday, and he escape, may be retaken on a Sunday - - - - - ib. May be arrested on a Sunday on the Lord Chan- cellor's warrant - - - - - - ib. Cannot arrest on a Sunday on a commission of rebel- lion out of the Exchequer of Pleas - - - ib. Nor for a penalty on a conviction - - - ib. Nor on attachment for costs, (.S:c. - - - - ib. Party arrested and discharged, sheriff not knowing of a detainer, arrest on Sunday held bad - - ib. Privileged Places. Palaces 63 Privileged places now demolished, and preventing arrests highly penal - - - - - ib. Persons opposing the execution of process, or abusing the officer, guilty of felony if he receives a bodily hurt - ------ ii>. Sheriff may arrest ivitltin the liberty of the Rolls, unless witnesses, &c. - - - - - ib. Who are privileged from arrests. The king and queen - - - - - - 62 The king's servants ----- -63 Peers of the realm ------ ib. Members of Parliament • - - - - ib. OFFICE OF SHERIFF. 571 ARREST OF MESNE PROCESS— continued. Page. Ambassadors and ministers of foreign powers - - G4 Envoy -------- ib. Consul not privileged ------ ib. No merchant, &c. to have the benefit of this act - ib. Nor the servant of an ambassador, unless his name be registered, &c. - - - - - - ib. What the privilege extends to - - - - ib. Who he cannot protect - - - - - ib. Person in debt cannot be protected - - - 65 A clerk is no domestic servant - - •• - ib. Of Officers of both Houses of Parliament, Clergj/men, Serjeants at Laio, Barristers, Officers oj Courts and Attornies. Assistant Officer of both Houses of Parliament - ib. Clergymen -------- ib. Judges --_.-..-ib. Their clerks - - - - - - -ib. Serjeants at law ------- ib. Barristers -------- ib. Corporations ____--- ib. Officers of the courts ~ . - - - - GQ If an attorney is arrested he must put in bail and plead his privilege r ----- ib. Sheriff cannot take notice of such privilege - - ib. Lord Chancellor and the Masters - - - - ib. Cursitors and known clerks - - - - - ib. Auditor of Exchequer and other officers - - ib. Marshal and warden - - - - - - ib. When attornies are protected - - - - ib. Parties to suits and ivitnesses. When plaintiff and defendant - - - - ib. And for how long ------ 67 General rule ------- ib. Witnesses -------- ib. attending arbitration - - - - 68 Jurors -------- lb. Bankrupts -•- - - - - -ib. Seamen and Soldiers. Seaman, (unless 20I.) - - - - - - 69 Volunteer soldier, (unless for '20 1.) - - - ib. Ahens __------ 70 Executors and administrators - - - - 7^' Married women ------- ib. Wales and Counties Palatine. No sheriff to arrest in Wales, or county palatine, unless debt is 20/. - - - - - - ib. 572 INDEX TO THE ARREST ON MESNE FB.OCESS— continued. Page. Bail to be taken for no more than sum in the affidavit 70 If court award process without cause, sheriff on arrest not punishable - - - - - ib. Sheriff not liable to false imprisonment if he arrest bankrupt ------- ib. So if he arrest a peer 7^ Regulations after arrest - - - - - - ib. Abuses of gaolers and sheriffs officers restrained - ib. Prisoner may not be carried to any tavern, &c. witlv- out his consent - - - - - - ib. Nor charged for liquor, unless freely and particularly called for ; nor any other than legal fee demanded for caption or attendance - - - - ib. No gratuity-money ; prisoner not to be carried to gaol within twenty-four hours after arrest, unless he refuse to be taken to some safe and convenient dwelling-house of his own nomination - - T^ Nor may the officer take for the diet, &c. of pri- soner, more than allowed by order of justices - ib. A copy whereof to be hung up in a conspicuous part of the sessions-house, &c. - - - - ib. These provisions confined to mesne process only - 73 As to the time when party to be taken to gaol - ib. Sheriffs and secondaries to deliver printed copies of clauses to bailiffs - - - - - - ib. To be made part of the condition of the bond, &c. that they shall show same, if carried to a public - house, and permit him or his friend to read over same, before liquor brought or called for - - 74 Sheriffs and gaolers to allow debtors in custody to send for victuals from what place they shall think fit ib. To have such bedding, linen, &c. as they shall have occasion for - - - - - - - ib. Sheriffs not to take more than is mentioned in table of fees settled by the Act - - - - 75 If gaolers extort more than allowed, defendant may petition in term to any court, or in vacation to any judge ------- ib. Costs ib. Forfeiture -------- ib. Sheriffs to take no reward but of the king - - 76 Fees on arrest - - - - - - -ib. Fees to sheriffs of Wales - - - - "7^ Deposit in lieu of bail, of - - - - - ib. To be taken at the time of the arrest - - - 7^ ASSIGNMENT OF BAIL BOND - - - - 85 OFriCE OP SHERIFF. r>73 ATTACHMENTS against the sheriff - - - - 95 Setting aside, staying proceedings on - - - 9B ATTORNIES ^6 AUDITORS ili- B. BAIL. Bail and mainprize ._.--- 78 The difference between them " ". " ' '^* By common law on arrest sheriff not obliged to take bail i>- But must now by statute - - - - " I^'- Who to be bailed, and what sureties required - ib. Upon what sureties |b. When to appear - - ^^• What persons are not bailable - - - "79 What bonds may b-^ taken ib. What bonds to be void - - - - ' j^- The statute consists of two parts - - - - ib. Deposit in lieu of ----- ■ 77 With respect to the sheriff'. Not bound to take two sureties - * - _ - 79 Security to be given to the sheriff and not to bailiff 80 Promise of a bribe to a bailiff illegal - - - ib. Officer obliged to admit to bail - - - - ib. If he take money i^- Bail-Bond. Three forms to be observed in the bond - " P ^ Bail-bond when good |b- No set fortn - - - - " " ' !, If made to appear out of term void - - - ib. With respect to the party. General rule to take for double the sum sworn to - ib. And not for more than the sum indorsed on the writ ib. If the defendant is in actual custody to take bail - 82 If given to the sheriff of Durham - - - - ib. The statute to be pleaded - - """!?' How much sheriff is to take for a bond and penalty ib. Penalty for taking more than is allowed by stat. - ib. Fees not settled V?' Attorney's undertaking - - - - " !?* Arrest in one county, and bond taken in another - ib. If undertaking be taken instead of a bond - - ib. Agreement by a third person will not do - " °^ Sheriff letting out of custody without bail-bond, and fixed, cannot recover against defendant for money paid .-.----- ^b. 574 INDEX TO THE BAIL — continued. Page. Cognovit discharges the sheriff - - - - 83 What is sufficient to state in the bail-bond - - ib. Must take bond in name of his office - - - ib. Neither place where bail-bond taken, nor insuffici- ency of bail traversable - - - - - 84 Bond to the marshal to continue a prisoner good •• ib. Upon a capias a third person may give bond to pay ib. Bill of Middlesex against three, with an ac etiam joint and several, sheriff takes bond for the appear- ance of the three, the bond is not according to the statute ------ __ib. Bond for appearance before process comes good - ib. If a mistake in the day of appearance it is bad - ib. Misnomer of the defendant - - - - - ib. Where sheriff may take bail on process not express- ing cause of action ------ 85 Discharge of Defendant. Sheriff to make search before he discharges - - ib. And have reasonable time to search the office for writs ib. Render of Defendant ------ 93 Proceedings against Bail. Entry of ca. sa. in the sheriff's office - - - 86 Of the Assigyiment of the Bond. Plaintiff may take an assignment of the bond - - 85 Assignment of a bond no new thing - - - 86 Sheriff on request of plaintiff to assign the bail-bond ib. May assign to the king - - - - - ib. Denying that he has taken one, liable to an action ib. Under-sheriff's clerk cannot assign the bail-bond - ib. May assign out of the county - - - - 87 I .ate sheriff may assign - - - - - ib. If bond be cancelled before return - - - ib. When bail put in and justified after action brought against the sheriff for not assigning - - - ib. Ruling the sheriff to bring in the body an election to proceed against him, and discharges the bail- bond ~ 86 Of Bail on capias utlagatinn. If any person be arrested on a ca. utl. in K. B., sheriff, if no bail be required, may take an attorney's under- taking • -88 If it require bail, may take bond with one or more surety or sureties for appearance by attorney, kc. ib. Persons taken shall be discharged, giving security after return of writ ----- . ib. In the C. P. sheriff takes bail on ca. utl. - - ib. OFFICE OF SHERIFF. 575 BAIL — continued. Page. Sheriff cannot take bail on an attachment for contempt 88 How regulated by tlie practice in Chancery - - 89 BAIL-BOND. Vide title Bail 81 The form of a bail-bond ----- 467 BAILIFFS. High sheriff may appoint bailiffs to execute warrants 43 Three kinds of bailiffs ------ ib. Serjeants at mace for London are bailiffs - - 44 Sheriff answerable for them - - - - - ib. No sheriff's bailiff shall be an attorney - - - 45 Bailiffs to take oatlis " P^- Not to be bail in any action - - - - ib. Nor to take any warrant of attorney - - - ib. Office cannot be executed by an infant - - - 47 Bailiff's duty. A sworn and known bailiff need not show his warrant 45 But ought to declare the contents - - - ib. Who is a known bailiff - - - - - 46 He gives notice, when he says, I arrest you - - ib. If arrest made and party flies, may pursue him - ib. If he arrests without warrant, party may have an action -------- ib. Bailiff of a hundred may arrest all over the county - ib. Arrest may be made by his authority, if he be near - ib. Must as soon as he executes warrant give an answer ib. An agreement to put in bail by a third person, bad - ib. Cannot enter a liberty without a non omittas - "47 A caution to bailiffs how they execute writs - - ib. If the king dies, yet he may execute the warrant - ib. For more, xide title Arrest - - - - - 54 BAILIFFS OF LIBERTIES AND FRANCHISES - 47 Franchises derived from the Crown - - - ib. Who they may be vested in 48 Bailiff of a liberty - - - - - - ib- Sheriff to write to bailiff of liberty to execute process ib. If bailiff give no answer, then a 7ion omittas - - ib. If bailiff of liberty arrest, to take bail and have fees 40 Writ must not be directed to the bailiff - - - ib. No authority out of the franchise - - - " 1^. To be amerced for insufficient returns - - " 1^. Or false returns ------- ib. Who the rule to bring in body may be served on - ib. Bailiffof a liberty to take the usual oaths - - ib. To attend justices, &c. ----- ib. So bailiffs of franchises - - " .*. ' Sheriff to make no other return than what bailiff has returned -------->"• 576 INDEX TO THE BAILIFFS OF LIBERTIES, &c.— continued. Page. If he enter franchises w'thout a non omittas, lord may have an action ------ 50 Unless where the king is party " " ". " ^^' If baihff dies after return of cepi, a distringas issues against the successor ib. Thebaihffofahberty having execution of writs, ha- ble for an escape, if he remove from his prison to the county gaol out of the liberty, and deliver into the custody of the sheriff ib. Bailiffs of liberties to certify names of the prisoners at the gaol -delivery - - - - - - ib. BANKRUPTS. See title Arrest 54 BARRISTERS. See title Arrest ib. BISHOP. . ^^ ^ A bishop may be called upon to return a writ oxji.fa. 142 May name sequestrators or the party - - - ib. BOROUGHS. . , , , A list of boroughs sending Members m England and Wales 2G0 BOUNDARIES, arrest near 53 C. CAPIAS UTLAGATUM. On cap. utl. may return non est inventus, cepi corpus, or nihil as to lands, &c. 34-8 May imprison an infant ----- ib. May return defendant in prison for a debt - - ib. \Vhat sheriff and officer may do on this writ - - ib. May take goods and profits of land, mow, sever, and take corn, &c. ------ ib. If tenant of the freehold outlawed, may cut grass - ib. If woman, executrix, takes husband who is outlawed, goods of the testator not forfeited - - - 349 If femme covert outlawed, the king not to have her term ..------ib. Outlaw forfeits debts, &c. ib. Good distrained, let, pawned, &c. not to be seized - ib. What goods may be taken - - - - - ib. If the body taken, how sheriff to act - - - ib. Two outlawries ------- ib. Copyhold lands not liable - - - ", . . ' j^' If goods, &c. taken, the sheriffis to take an inquisition ib. The inquisition on a cap. utl. - - . - 350 B.eturn o? nulla bona - - - - - - ib. Of vend. exp. after goods seized and inquisition taken 351 OFFICE OF SHERIFF. 571 CA. SA. Page. Return to ca. sa. - - - - - - . 345 If sheriff take the body he must have it ready - - ib. But if he returns ce^^z, he must have the body - - ib. Return of ccpi ---._._ 346 Non est itiventus ------- ib. If on a ca. sa. execution be done, and plaintiff paid, need not return ---.-. ib. But if ruled, he must return - - - - - ib. Release on payment to sheriff, no good return - ib. Mandavi ballivo, who gave no answer - - - ib. The bailiff's return ofcepi - - - - - ib. Return by new sheriff, where the old one executed writ ------- -ib. Istud breve, held good by C. P. - - - - 347 Of return, tarde ------- ib. Return of having taken defendant, who paid the money, and payment by the sheriff to the plaintiff ib. What return if execution comes and prisoner be at- tainted, &c. ------- ib. Sheriff cannot take bail - - - - - ib. Escape, if taken on a c«. sa. though there is a term intervening between the teste and return - ib. CHESTER. Sheriff of, to levy fines transmitted to clerk of assizes Election of members of parliament for - - - 256 CINQUE PORTS. Election of Members for - - - - - ib. CIRCUIT. Court of assize and nisi prius to be composed of two or more commissioners - - - _ „ oqQ When they came into use - - . - . 307 The present justices whence derived - - - ib. No man formerly a judge of assize in his own county ib. The judges sit by virtue of five authorities - - ib. The several counties divided into circuits - - ib. Sheriff's duty on the circuit. Before judges go circuit, precepts to the sheriff to cause assizes to be summoned - - _ . 308 Sheriff to cause twenty-four jurors, some out of every hundred, of grand inquest, to attend - - - ib. Also twenty four freeholders of 10/. per ann. petty ju'T - - ib. To give notice to all justices, &c. - - - - ib. To summon jurors between party and party - - 309 After bailiffs have executed warrants, to return same to the sheriff - - - - - . - ib. How to make out the calendars of justicey, &c. - ib, p V 57B INDEX TO THE CIRCUIT— continued . Page. Thecalcncbr 3pj Grand jury ...-.-. ib. Common jury - - - - - - -3}0 Calendar of prisoners jb. Panel of jurors of » /si /;rm5 - - - - - ib. Warrant to bail iff to summon the assizes - - ib. Precept for assize process - - - - ' ^}^ To summon a special jury - - - - - ib. Precept to view - - - - - - -312 Return to the precept of gaol-delivery signed by the clerk of assize - - - - - - . ib. The return to the precept of oyer and terminer signed by the judges ------- ib. The like of gaol delivery signed by the judges - ib. Return of summons on an indictment at the assizes ib. Return cf «/A«7 as to the same - - - - 3^3 Return of a capias on an indictment at the assizes - ib. Return of assize precept signed by the clerk of assize ib. What issue sheriff must return on a habeas corpora or distringas ------- ib. Upon attaint - - - - - - -ib. CLERGYMEN. Of their privilege as to arrest - - - - 65 CORONER. Sheriff's duty respecting the choice of a Coroner. Particular coroners for every county - - - 224 Chosen by the freeholders ib. Writ de coronatore eligendo issues to elect, directed to the sheriff ib. Who were formerly coroners - - - - ib. Who now may be chosen - - - - - ib. Names of freeholders at the election to be set down 225 Chosen by writ in open court - - - - ib. King's demise ------- ib. Return -------- ib. Regulations under 58 Geo. 3? c- 95 - ' " Jb. Proclamation 227 Coroner's oath ------- ib. To take oath of allegiance, &c. - - - - ib. Return to the writ ------ ib. In case of scrutiny sheriff to grant a poll - - ib. See Index to the Office of Coroner. CORPORATIONS G5 COUNTIES. Division of England into counties, &c. - - - 1 The number of counties in England - - - 41 OFFICE OF SHERIFF. 579 COUNTIES— co7itinuccL Page. In Wales ------ ..^l Counties palatine .--... ^2 How counties were divided, and for why - - ib. The names of the different in England - - - ib. Cinque ports ------- ib. Constable of Z)owr Castle executes all writs - - ib. Counties corporate ------ ib. Cities and towns having a sheriff" or sheriffs - - ib. COUNTY-COURT. Incident to the office of sheriff* . _ - - 206 Not a court of record, holds pleas under 40 s. - ib. Has jurisdiction exclusive of the king's supei'ior courts ib. Holds plea of real and personal actions by writ of justicies - - - - - - - -207 Tiie freeholders judges, sheriff the ministerial officer ib. Freeholders attending this court why Acts of Parlia- ment formerly read, and outlawries there pro- claimed -------- ib. All popular elections, &c. to be made in full county- court -------- ib. Anciently indictments, &c. in the torne - - ib. Sheriff" not now to hold pleas of the Crown, but deli- ver them to the justices - - - - - ib. Sheriff" to appoint the county-clerk - - - ib. County-clerks to depute bailiff"s, &c. - - - 208 They are to make the usual process - - - ib. When the sheriff" adjourns, he is to appoint a day certain for the next court - - - - ib. When to beholden. The court holden from month to month - - ib. The necessity of keeping it monthly - - . ib. The coroner to sit with the sheriff" at county- court upon outlawries - - - - - - ib. County-courts held on Monday, now to be held on Wednesday - - - - - - -ib. At what Place. May be kept in any place at pleasure of sheriff" - ib. Chester, where - - - - - - - 209 Wales ib. If plea by justicies ------ ib. All persons dwelling in the county are to appear - ib. Sheriffs of Wales hold plea of i-eplevin - - - ib. Stile of the court ------ ib. What this court does not hold plea of - - - ib. Of proceeding by action. First summons - - - - - - -cio Plaintiff" at next court to appear - - - - 211 p P 2 500 INDEX TO THE COV'^TY-COllRT^contimicd. _ Page. Defendant at next court after declaration filed imparls 2 1 1 Plaintiff to file replication - - - - - ib. If freehold pleaded, no further proceeding unless by justicics - - - - - - - -ib. Issue joined ----... ib. Proceedings are filed - - - - - - ib. Trial over, verdict, execution maybe had of goods - ib. If defendant does not appear, next process a dis- tringas --..---- ib. Goods distrained to be kept - - - - - 212 Compelling plaintiff to declare - - - - ib. If not, and nonpros and costs - - - - ib. If a delay of execution, how to proceed - - ib. Custom in Yorks. to have vend. exp. after third attach- ment - - - - - - - -ib. Sci. fa. to be sued after a year and a day - - ib. If no plea, judgment taken by default, and writ of inquiry awarded - - - - - - ib. The manner of keeping this court : Vovm?, n?,e.A - - 214 Proceedings in the county-court of A/ir/f/Zesex - 215 Times and places appointed for the holding - - ib. The monthly court to be kept as usual - - - ib. No plaint or order of the court to be removed by any writ of recordari, certiorari, or false judg- ment, except in replevin - - - - - ib. Who liable to be summoned to the county court - ib. Jurisdiction not extended by the act - - - ib. Under-sheriff to deliver every month three lists of twelve freeholders to county-clerk, who are to be summoned, &c. - - - - - -216 None to attend more than once in a year - - ib. Precepts iyi the county-court. Summons on the plaint - - - - - ib. Distringas on ditto - - - - - - ib. Duces tecum, second, third attachment, or distringas 217 A venditioni exponas - - - - - - ib. A supersedeas on an attachment or distringas - ib. A subpoena ad testijicandum - - - - - ib. A levari Jacias - - - - - - -218 A Ji. fa. in debt ------ ib. Ditto on a verdict for defendant - - - - ib. A fi. fa. on a nonsuit ------ ib. in Trespass - - - - - -219 in Case - - - - - • ib. on Promises - - - - - - ib. Sici. fa. after a year and a day - - - - ib. Tolt to remove cause from the hundred to the county-court ------- ib. OFFICE OF SHERIFF. 5B1 COUNTY-COURT— co«^/«w^c/. Page. Pone to remove the cause - - - - - 220 Return to a writ of pone - - - - - ib. Schedule ib. Where a writ of false judgment lies - - - ib. The return ------ --ib. What is to be set forth in the schedule - - - ib. Accedas ad curiam - - - - - -221 County-clerk to make a precept - - - - ib. Steward to return same - - - - - ib. Sheriff's return ------- ib. The sheriff to go in person ; but may be done by his under-sheriff" - - - - - - -222 Return if sheriff goes in person and is refused - ib. What sheriff may further return - - - - ib. Need not be knights, but four men - - - ib. Must be returned under seal - - - - ib. Return that the suitors would not record the plea - ib. Sheriff to make execution, and require sight of the plea -------- ib. Return that the suitors said, no such plea - - 223 Tarde good return - - - - - - ib. Return by the sheriff, where the writ of false judg- ment, or acced. ad cur., is directed to record the plaint out of a hundred court, or court-baron - ib. If the sheriff send his mandate to bailiff of a liberty, tlie return - - - - - - -ib. CURSITORS GQ CUSTOMS AND EXCISE. Sheriffs, &c. on request in writing of a known soli- citor for the Customs, &c. to grant a special warrant for apprehending offenders, on writ of capias, &c. - - - - - - -S^i Sheriffs, mayors, &c. granting such special warrants saved harmless - - - - - - ib. Poundage respecting these debts - - - - 322 D. DEMISE OF CROWN, when determining the office - 10 DEPOSIT in lieu of bail .----- 72 DETAINER until attorney's costs paid, illegal - - 304 DISCHARGE OF DEFENDANT. See tit. Bail - 85 DISTRINGAS JURATORUM. Return of - - - - - - - - 35^ What issue returned on a distr.jur., or had. corp.jur. 293. 351 Return of 351 p p 3 582 INDEX TO THE Page. DISTRINGAS NUPER VICECOM. - - - - 351 Return to a distringas nuper vicecom. distrained - ib. Nihil to a distringas against a member - - - ib. Sheriff's return that he had sent to the bailiff of a liberty, who gave no answer - - - - ib. May on this writ return tarde, not against late sheriff ib. Sheriff ought to distrain reasonably - - - ib. Usual issues -.-..-- ib. Must return issues, and not distrained - - - ib. DOWER, RETURN TO WRIT OF - - - - 352 Summons on the land to be made fourteen days before the return of writ, and proclamation at the church-door on a Sunday - - - - ib. What sheriff is to do on receipt of the writ of dower 353 Return to writ of dower - - - - - ib. Sherifl"s duty on the grand cape - - - - ib. If within a franchise ------ ib. When to be served - - - - - - lb. If no lands -------- -354 Return summoned of grand cape - - - - ib. Return to the execution in dower of hab. Jac. seis. - ib. How to put the demandant in possession - - ib. What sheriff may deliver - - - - - ib. If there are three manors - - - - - ib. Sheriff to put the wife in execution of a third part - 355 Where the wife cannot have dower assigned by metes and bounds - - - - - - ib. Inquisition in ------- ib. DURHAM, Sheriff of - - - » - - - 38 Election of Members of Parliament for - - - "Z^Q E. ELECTION OF MEMBERS TO SERVE IN PARLIA- MENT '^28 ELEGIT - 143 Sheriff not bound to deliver a moiety of each parti- cular tenement, but only a moiety of the whole - 367 Execution. See tit. Execution - - - - 368 Return to the writ ------ ib. Inquisition, Avhere goods and lands are found - - ib. If lands and no goods taken 369 WHiat sheriff may return . - _ - - 370 ENGLAND. Of the division of England into counties - - i Tithinss ih. OFFICE OF SHERIFF. r>«3 ENGLAND — continued. Page. Anciently no man sufFered to abide above four days, unless enrolled in - - - _ - . i Tithingman tlie discreetest man in the town - - ii). Signification of tithings - - - - - ib. Definition of a town or vill ----- 2 City ib. Borough --------ib. Hamlet jb. Entire vills ------- ib. Demi vills -------- ib. Towns contained but one parish, and one tithing - ib. Hundred, what - - - - - - - ib. Governed by a constable or bailiff - - - ib. Hundred called wapentakes - - - - - ib. Subdivisions of hundreds introduced by yjf/fra/ - ib. Divisions subject to an officer called cenlenariiis - ib. Centenarii under the command of the court - - 3 Indefinite number of hundreds a county or shire - ib. County derived from comes - - - - - ib. Intermediate division between shires and hundreds, as lathes and rapes, &c. - - - - - ib. Where county divided into jurisdictions, called trithings - - - - . - - - ib. Trithings in Yorkshire called ridings - - - ib. Number of counties in £??^/fif?«^ and Wales - - dj. Counties divided for better government, administra- tion of justice, and sheriff's appointed yearly - ib. Three counties of special note - - - - ib. Chief governors of counties palatine sent all writs out in their name ------ ib. Why this privilege was granted - - •■ " . 4- Their power abridged ------ ib. Isle of Eliy a royal franchise - - - - ib. Of counties corporate ------ ib. ESCAPE, Derivation of the word - - - - - if>3 What understood to be ib- Escape in civil cases, what - - - " - ib. The law allows sheriffs to justify under the authority ib. If the court has no jurisdiction all is void - . 7 'l*- Ifaca. sa. issues after a year and a day, the sheriff, though no sci. fa. issued, is liable if defendant escapes - - - - - ■ " -104 The sheriff may take advantage of erroneous process ib. Cannot be charged with an escape before he had de- fendant in actual custody - - - - - ib. If in actual custody, and another writ comes, must detain '^>- P P 4 584 INDEX TO THE ESC APIS. — continued. Page. If no actual arrest, and takes an undertaking, not liable to a new detainer ----- 164 Bailiff of liberty bringing a prisoner taken in execu- tion out of his liberty to lodge him in county gaol ib. Undertaking and no bail put in - - - - ib. One desiring to charge in custody, and to be informed of the prisoner, marshal, &c. to give a true note in writing ------- 165 Every person to be kept in safe and close custody ib. If there be an acknowledgment in custody, delivery of writ is an arrest, and in case of escape, subjects the sheriff ------- ib. If plaintiff license sheriff to go, no action - - ib. Sheriff liable, if prisoner committed on escape warrant ib. There are two kinds of escape, voluntary and negligent ib. Voluntary, what ------- ib. If goaler makes prisoner in execution turnkey, and he goes out ------- ib. Bailiff may retake before the return, though he volun- tarily permit prisoner to escape - - - 166 Voluntary return before action brought - - ib. If a sheriff, having arrested the defendant on mesne process, keep him in his custody after the return of writ, and then carry him to prison, he is not liable for an escape if plaintiff has not been delayed in his suit --------ib. Plaintiff in an action for an escape must prove his debt ib. An administrator may maintain action - - - ib. If party escape out of one of the compters in London ib. If defendant taken in execution goes with a follower before he takes him to prison, it is an escape - ib. If in execution and seen at large - - - - ib. When turnkey lets prisoner out, not being the war- den's deputy, a negligent escape - - - ib. Negligent escape, what ----- 1C7 The difference between an escape on mesne process, and execution ------- ib. On a ca. sa. sheriff cannot return a rescue, but must raise the posse ------ ib. If one taken in execution escapes, debt lies - - ib. Action for an escape on mesne process, not guilty pleaded ; it turns out on a voluntary escape the prisoner returns to the Fleet the same day ; and the plaintiff proceeds to final judgment, yet action lies against the warden, though not brought until after final judgment obtained - - - - 1G8 In action against sheriff the plaintiff is put to strict proof of his declaration ----- ib. OFFICE OF SHERIFF. 503 ESCAPE — continued. Page. A prisoner on a voluntary escape is instantly at large, and the gaoler cannot take - - - - iG8 Plaintiff may retake, but at his option - - - ib. He is not now a prisoner at plaintiff's suit, although locked up every night ----- jj). Nothing can purge a voluntary escape - - - ib. If the sheriff suffers a voluntary escape, the prisoner is discharged, and the action transferred to the sheriff --------ib. Voluntary and permissive escapes are novt' taken away with regard to the plaintiff, by statute 8 Sc gW. 3. ib. Does not take away the plaintiff's right against sheriff ib. If marshal, &c. take any reward from prisoner to effect an escape, forfeits 500 /. - - - - i(jy Prisoners either on contempt, or mesne process, or in execution, to be detained within the prison or rules, unless by hab. carp, or rule of court - - - ib. Persons obtaining judgment against the marshal to have all remedies by law allowed, but judges to sequester the profits of office - _ - . ib. If they bring error, shall put in bail - - - ib. If a bankrupt is committed to gaol and escapes, gaoler forfeits 500/. - - - - - ib. If a sheriff by colour of a hab. Corp. suffers prisoner to go at large, an escape - - - - - 170 If defendant be in prison, a.nd... Jij. The sheriff's authority, and what he may seize - 121 What he may not seize ----- j'jj, Qu. whether he can seize and sell grass growing - ib. Money of defendant in the hands of the sheriff - 122 Bank-notes, deeds, &c. - - - - - ib. Personal estate liable - - - - - - ib. Gowns --_--__. ji^ Sheriff may take moveables ih. Goods pawned, demised or distrained - . _ Ji,. Farming stock ------- ib. If a soap boiler being an under-tenant, puts up vats, coppers, &c. for convenience of trade, may take them - - - - - - _ -123 If execution be against partners, how to act - - ib. Must seize the whole and sell a moiety - - - ib. An annuity for years may be taken - - - ib. Goods ecclesiastical not to be taken - - - ib. Sheriff may sell a term for years, but if he mistakes in the recital of lease the date of lease, the sale is good ib. If he sells with general words, good - - - 124 What is sufficient to state - - - - - ib. May sell an estate per aider vie - - - - ib. If defendant will go out of possession on sale of lease, sheriff may put the vendee in - - . . lb. As to an equity of redemption - - - - ib. Mere equitable interest cannot be taken - - ib. May take goods fraudulently sold - - - I'-j If a creditor by fi' fa. seize goods, and suffer them to remain long, and another execution come, it is evidence of fi-aud - - - - - - ib. If there be a bond fide sale before delivery of writ, they cannot be taken, and though he sell fraudu- lently, yet if he after sells to anethc r - - . jb. The goods of wife settled cannot be taken - - ib. Nor the goods of a testator for the debt of the exe- cutors - - - - - - - .12G A voluntary confession of a judgment good, on which immediate execution issued, though another have a judgment, and threaten to enter it - . - ib. 692 INDEX TO THE EXECUTION on Fi. Fa.- continued. Page. If a man know of a judgment and execution, and with a view to defeat it purchase the debtor's goods, it is void - - - - - - -126 Corporation goods may be taken - - - - 127 If there is a levy made, and an extent qflerwards comes in, it is too late - - - - - ib. Sheriff bound at his peril to take the goods of de- fendant, he may have an inquest - - - ib. But if inquest be taken, it is no evidence in an action o^ trover, nor in an action for false return - - 128 I low to levy on a corporation - - - - ib. The sheriff may return levied, and the goods remain in his hands for want of buyers - - - - ib. Venditioni exponas then issues - - - - ib. The sheriff cannot detain goods in his own hands and satisfy debt, but ought to sell - - - - 129 Goods ought not to be delivered to the defendant - ib. By seizure the property of the goods is altered, therefore if error be brought, and a supersedeas issues, it does not hinder the sale - _ - ib. But if supersedeas issued irregularly, the defendant to be restored ------- ib. If the sheriff has seized, though plaintiff in error has a supersedeas, yet the property being altered, she- riff may sell ------- ib. If sheriff returns that he has goods to the value of — I. which remain, &c. he may sell them for less - 1 30 Yet if he values them so high as none will buy, he must himself ----- - ib. No appraisement on a. Jt. Ja., but on elegit there must -------- ib. If sheriff levies 20 1, of the goods, and sells them for 40 1, may detain surplusage till demand made - ib. But if he returns cattle to the value of 100/. and they die for want, plaintiff shall have the value from the sheriff ------ ib. If he lives, though he make no return of the writ, yet action lies against him for the money - - 131 But the writ of warrant must be produced - - ib. If he retxivxiji.jeci ------ ib. Error if served in time a supersedeas - - - ib. But if bail be not put in in time - - - - ib. If defendant pays sheriff before entry, he cannot enter afterwards - - - - - - - 1 32 If a surplus remains after sale - - - - ib. If goods once legally seized by sheriff, cannot be again so- - - - - - - -ib. So if once abandoned ib. OFFICE OF SHERIFF. 693 EXECUTION on Fi. Fa continued. Page. If A. lent money on a ship, and took possession before execution executed ats. B. the vessel cannot be seized under i?.'s execution - - - - 132 If tender is made of th.e debt, sheriff not to sell - ib. If sheriff levy and pay plaintiff, it is good - - ib. Payment on aji.fa. a good plea - - . - ib. If he takes goods, may sell same at any rate, though he is not to deliver the same to the plaintiff; but he is to sell for ready money - . . . ib. Sale to the creditor, good - - - - . il^. Writ does not abate by plaintiff's death - - 1 33 Levying the expenses of execution - . - ib. By Levari Facias. Affects goods and profits of the land - - - 141 May not only sell the goods, but collect all debts ont of the profits of the land, as corn groM ing, &c. ib. Used where sheriff returns a beneficed clerk - - 142 Issues out of Exchequer to levy debts due to the king 143 The beasts of a stranger levant and couchant may be taken after outlawry - - - - - ib. Though one be in execution for the king, this writ lies of goods, &c., and sheriff may take ready money ib. On an Elegit. At common law satisfaction only of goods, &c. and not possession of lands - - - - -144 Writ granted by statute ib. If goods not sufiicient, a moiety of the land to be extended -.-_._. jb. Until the statute, lands not liable to debts, nor copy- hold lands now so, unless for debts due to the king ib If no land, then a co. sa. may be had - - - 14^ Body and goods may be taken, but not body and land -------- ib. He who recovers a debt may have a fi. fa. or elegit • ib. Sheriff may take one moiety of all lands - - ib. By this writ two things to be observed - - - ib. Must be done by inquest - - - - - ib. Terms for years, and an interest out of lands, may be delivered as a chattel by reasonable price - ib. Some say a chattel or term for years may be sold - 146 The elegit is not a Ji. fa. as to good^i, the one is by sale, the other by appraisement - - - ib. Sheriff and jury may go to the house, &c. and value ib. Extent and valuation must be by twelve men - ib. Bailiff of a liberty may execute this ^\rlt - - ib. 594 INDEX TO THE EXECUTION onji.fa.—conthiued. Page. Sheriff to impanel a jury to inquire of the goods, and also of lands - - - - - - -146 Cannot be done without inquest - - - - 147 If the goods sufficient, ought not to extend lands - ib. When the jury have found seisin, moiety to be deli- vered -------- ib. Not bound to deliver a moiety of a particular tene- ment - " - - - - - -ib. What inquisition ought to find - - - - ib. Sheriff to deliver a moiety with certainty - - ib. And moiety only ------ ib. If joint tenant to be specified, so tenant in common ib. If divers conusors, a moiety of the lands of all - ib. If land aliened after judgment, a moiety in the hands of the purchaser - - - - - - 148 If lands he in several vills - - - - - ib. To deliver one half of all houses, &c. - - - ib. On inquisition of a lease, sheriff may sell it as goods ib. If extended .-_-..- ib. Actual possession cannot be dehvered, but obliged to bring ejectment - - - - - - ib. What Estates may he extended. What estates are extendable on this writ - - ib. Sheriff to do execution on all lands, &c. in trust for him against whom execution sued - - - ib. What cannot he extended. What cannot be extended - - - - - 149 Entailed lands in the hands of the heir - - - ib. Priority of judgments - - - - - - ib. Where elegit executed, and claim by extent in same term, but before judgment given _ . - 150 IfJi.Ja. and elegit delivered at same time, with ex- tent at a common person's suit, former to take place ib. If the land first extended on a statute, and elegit ob- tained before acknowledgment of the statute come after, moiety of the land extended shall be deli- vered to the plaintiff - - - - - ib. How to deliver where two manors - - - ib. So of two acres ------- ib. If Judgment reversed. If error brought and judgment reversed, the goods in specie to be restored, and not the value - - ib. On a second elegit, the sheriff only to deliver a moiety of the moiety left - - - - - - ib. Cannot deliver a lease to another value than found 151 After Inquisition tahen. After inquisition taken it is to be filed - - - ib. OFFICE OF SHERIFF. o9.> EXECUTION on Fi. Fa.—co?itimied. Page. Before filing, court may examine it, and stop the filing i ,3 1 Sheriff's charge to the jury il,. Sheriff's fees ---.... ,ij. On Execution m real or mixed Actions. If plaintiff recovers in a real or mixed action, to have execution awarded - - - - - - ih. When judgment was extended to the recovery of a term in ejectment, it gave birth to the hab.Jac.poss. i .■■5 2 What the sheriff is to do - - - - - ib. May take the posse comitafus .... j]). He ought to execute the writ, although a stranger seized of the land - - - - - - ib. Where a common recovery had of several houses, sheriff may deliver possession of one in name of all ; but otherwise where recovered in ejectment ib. Surest way of delivery - - - - - 15.3 Lands may be delivered in execution, without setting forth the metes and bounds - - - - ib. If writ be for twenty acres, so much by the estima- tion of the country must be delivered - - ib. Upon recovery of rent or common, sheriff may deli- ver possession by word - - - - - ib. If of a house, sheriff may put party in possession by delivering the ring of the door - - - - ib. If sheriff has thrust out all he can find, and after he is gone, some persons lurking in the house left, may re-execute ------ ib. Where the recovery is of land, and of more than de- manded by five hundred acres, judgment for one hundred only not sufficient to give possession of one in the name of the whole - - - - ib. If defendant dies before execution, it may be done against his heir - - - - - -154 If writ be tested before lessor of plaintiff's death, though not sued until after, regular - - . ib. If judgment be for five eighths, and sheriff gives pos- session of the whole, rule to restore - - - ib. When the possession is complete - - - - ib. If recovery be of a rent, how to put in possession - ib. Sheriff not bound to know or seek the land - - ib. If sheriff gives possession, and he is ejected after - ib. When an attachment will be granted - - - ib. If recovery be in three towns, how to give possession ib. The sheriff to be shown the premises, and plaintiff take possession at his peril - - - • '^55 If shown a stranger's land, and he enters, it is said he is no trespasser ...-.-- ib. y Q 2 50G INDEX TO THE EXECUTION on FL Fa.— continued. Page. If officer disturbed in the execution of tlie writ, an attachment - - - - - - -155 For poundage ------- ib. EXIGENT - - - 370 Return of proclamation to - - - - - ib. Proclamation and exigent - - - - - 371 On the criminal side ------ 376 Proclamation in Chancery - - - - - 41 1 Cepi upon a proclamation out of Chancery, and de- tained on other writs, so that he could not have the body without a hab. corp. cum causa - - ib. EXTENT. King's debt to be preferred to that of subject 135. 382 If extent posterior to a judgment, and execution de- livered to the sheriff, shall be preferred - - ib. If goods be taken on a ji.fa. before extent comes tested after delivery of 2^ ji.fa. extent too late - ib. Where king and the subject stand in equal degree, the ybrwer shall prevail . - - - 136.382 King's judgment affects all the lands of his officers - 382 Immediate extent tested after distress, good - - ib. Extent on day of assignment - - - - ib. What may be found ------ ib. Immediate extents to be pi-eferred to extent in aid - 383 If execution, and before veyid. exp. an extent comes, cannot take those goods - - - - - ib. King's suits preferred, if before judgment, of other plaintiffs ib. Construction ------- ib. Return of lands and not of goods - - - - ib. May return non est inventus - - - - - ib. Beneficed clerk ------- ib. May return that he cannot make execution - - ib. Extended the lands, but not that he had delivered, bad 384 Extent to be by inquisition - - - - - ib. If debtor have no goods, then his body to be taken - ib. If taken, to be delivered with his lands - - - ib. May return extended lands, and that he cannot de- liver, for another had the same in extent before - ib. As to the Writ, and hoiv the Sheriff" is to proceed. What the sheriff is commanded to do ~ - - ib. To summon a jury if he takes goods - - - ib. The oath of a juryman - ----- 385 Care to be taken on the return .... - ib. Return to extent - ------ ib. The form of an inquisition - - . . - ib. oifl(;E <)!• siiEinri'. 697 EXTENT — continued. , Page. A return that he has dehvcred lands, not saying that there are no other lands, bad . . . . 385 May return cepi, and the seizure of the lands - - 386 Non est inventus^ and nee habet bona, nee liabet terras ib. Poundage on - - - - - - - - ib. What poundage sheriff is to have - - - - ib. When sheriff seizes or extends goods or personal estate for the king's debts, and dies, or is super- seded before a vend. exp. awarded for sale, &c. and the subsequent sheriff makes sale, &c. eourt may settle the fees - - - - - - - 387 Not to take fees for levying the king's debts - - ib. For extraordinary service ----- 38() All orders made by the Barons for costs, &c. in a summary way, to have the same effect as any other order of court ; and such costs, Ike. raised by such process to enforce a compliance with other orders ib. Poundage allowed out of 100/. fine - - - ib. Sheriff may retain poundage - - - - ib. EXTORTION. Extortion to take poundage before due - - - iCl Extortion and abuse of public justice - - - ib. No sheriff to take reward to do his office - 76. 161 To take no more than allowed - - - - ib. Promise to pay more, void - - - - - ib. Offence at common law - - - - - ib. And by the statute ------ ib. When liable to action ------ ib. Damages under 29 El. c. 4 - - - - - ib. Extortion to demand fees for levying the king's debts 388 Or for executing process out of Exchequer for col- lecting debts, or for not levying or forbearing to levy any debt to the Crown - - - - ib. But may take poundage and allowance as given by the act, or by warrant of the lord treasurer, for any ex- traordinary service to the Crown performed - ib. F. FALSE IMPRISONMENT 60. Z'Z5- Sheriff not liable for, though he arrest a peer, dis- charged insolvent or certificated bankrupt - - 70 If he act in obedience to his mandate, he is excused ib. Ministers of justice, while in execution of their offices, under protection of the law - - - - O5 If arrest be by irregular process, false imprisonment in party, but not sheriff ----- '^j 3 (.} Q :J o98 INDEX TO THE FALSE IMPRISONMENT— co/i//««a/. Page. If process erroneously issued .... 325 Officer not liable through irregular process - - ib. If the sheriff make out a warrant without writ, it is false imprisonment -.---- 326 But if a writ is directed to sheriff to arrest A. and he makes out a warrant under which A. is arrested before writ delivered, no false imprisonment - ib. Although arrest good, yet warrant not lawful - - ib. An action lies for arrest q/ler return of writ - - ib. If A. arrested instead of B. it is false imprisonment ib. And though he tell officer he is i?. - - - ib. If defendant be misnamed ----- 327 If special bailiff do not show the warrant on demand ib. Warrant to two, an-est by one, no false imprisonment ib. If a stranger assist an officer - - - - ib. If a stranger confine him, at request of bailiff, after arrest made, no false imprisonment - - - ib. If on an escape warrant i)arty be arrested by the mob, and delivered to the sheriff, who detains, false im- prisonment .-.--.. ib. Unlawful detainer, though arrest lawful, amounts to a new arrest and false imprisonment - - - ib. If plaintiff direct sheriff to discharge a man on a ca- j)ias, Sec. he must do it - - - - - ib. So after supersedeas he must discharge - - - ib. If the order of court is to take to a certain gaol, con- fining in another is false imprisonment - - 3'i8 If the name of a bailiff be inserted in warrant after it is made out, bad ------ ib. Will not lie for an arrest of a person protected as a suitor --------ib. Nor for arresting a certificated bankrupt, peer, AGE— continued. Page. Poundage under 29 El. c. 4. for serving and executing any extent or execution on the body, lands or goods that he extends and delivers in execidion - 115. 156 Right given to the sheriff to demand the fees men- tioned in the act, and may bring debt for them - ib. The proviso not to extend to any fees taken for any execution within any city or town corporate, &c. 157 Bailiff of liberty executing an execution, entitled to the fees --------ib. If sheriff makes extent, and before liberate a new sheriff chosen, latter to have fees - - - ib. Statute does not extend to real actions - - - ib. No fee due on executing a c«/). M^/ , .^er^ y«. - - ib. If one in execution die, and a ji.fa. issue, and is levied, sheriff to have his fees - - - - ib. Extortion to take fees before due - - - - 158 Debt brought for fees on executing elegit, held that he ought to have them - - - - - ib. Fees for executing an habere facias ■possessionem aut seisiiiam, under 3 Geo. 1. c. 15. s. 16 - - - 159 If erroneous execution be executed .a^ - - ib. If parties compromise ------ ib. Poundage on detainer - - - - - -160 No poundage on attachment - - - - ib. Sheriff may maintain assumpsit or debt upon promise of payment of his fees - - - - - ib. Ikit cannot take bond ------ ib. Not to be allowed more than his poundage on sale, as to expenses, he must pay - - - - ib. Action for poundage nuist be by the sheriff, not bailiff ib. Not entitled to poundage upon stamps in possession of distributor - - - - - - -161 Where whole debt is paid under an extent in aid into another county - - - - - - ib. When he may retain his poundage - - - ib. Of extortion, see tit. Extortion - - - - ib. When liable to action - - - - - -162 Where sheriff not entitled to poundage on executions issued on custom-house or excise forfeitures - 322 Sheriffs levying debts, &c. (except postjines), due to the Crown, by process of the pipe, by levarijacias to have lid. per pound for the first 100/., and Qd. for every 20 s. above that sum ; and on process by fi-Ja. and extent, to have 1 s- Gd.per pound for the first 100/. and 1 s. per pound above, provided he answer the same on his accounts by day to be fixed by warrant of the Barons .... 386 OFFICE OF SHERIFF. 601 FEES, OR FOV}iD AGE— continued. Page. When a sheriff by Exchequer process seizes or ex- tends goods, or personal estate, for the king's debts, and dies, or is superseded before a void. exp. awarded, or sale, and the subsequent sheriff makes sale, &c. the Exchequer court, if sitting, or if not, any Baron' to settle and apportion the fees, &c. between the precedent and subsequent sheriff - 387 And if a sheriff shall nihil, or not answer such debts collected, he forfeits treble damages, and double what is so nichiUcd, or not answered - - - ib. If sheriff, &:c. demands or takes any money for exe- cuting such process (or as fees), for collecting such debts, or for not levying or forbearing to levy any debt to the Crown, guilty of extortion, and forfeits treble damages ...... 388 But he may take such poundage and allowance as is given by the act, &c. - - - - - ib. Orders made by the Barons for costs, to have same force as any order or decree - - . - 389 Poundage allowed out of 1 00 /. fine imposed on con- viction in K. B. - - - - - - ib. Sheriff may retain it, without waiting for the allowance ib. Fees of office taken in London and Middlesex - 320 Fees for warrants ------ 429 Not entitled to any for summoniiig jurors - - 302 FIERI FACIAS. Execution on. See tit. Execution on Fi. Fa. Applying for Time. As to the time to make return - - - - 133 If j^.ya. be against one of several partners - - 134 With respect to the king's debt - - - - ib. Of the old sheriff's authority, if he takes goods on Ji.fa. - - - .- . - - - - 140 In what cases after sale restitution shall be - - ib. Without sci.fa. ------- ib. With respect to the king's debts - - - - 135 Vide tit. Returns of Writs. As to the Return of Nulla Bona. Usual returns --..--_ 393 When he may return nulla bona - - - - 394 Upon af.fa. sheriff returns rndla bona, the bankrupt lying in prison two months, and a commission issued ------- -ib. If goods of A. be taken on z.fi.fa. and after seizure A. becomes a bankrupt, cannot affect the goods levied -------- ib. 602 INDEX TO THE FIERI T ACl AS— confmuecl. Page. If execution be levied more than two months before commission issued ------ 395 If money be levied in another action - - - ib. Where writ of error allowed before seizure - - ib. Money ordered to be brought into court - - 39^ If a dispute happen between plaintiff and stranger - ib. When liable, paying over after notice - .^ - Return of nulla bona in debt _ . - - 397 To nfifa. in case ------ ib. Nulla bona against two defendants - - - ib. Return of new sheriff where late sheriff returns levy, and goes out of office before return of the writ - ib. Levy on •a.fi.fa. in case to part, and nulla bona as to the residue ------- ib. If landlord paid, the return ib. Fi.feci. and for want of buyers - - - - 398 After such return, cannot return to a rend. exp. that he had sold and retained to answer a prior exe- cution -------- lb. Nulla bona, and that he is a beneficed clerk - - ib. The like if of a rectory - - - . - - ib. Return levy as to part, as to the residue that certain goods, &c. seized, were pawns in the hands of the defendant, who was a pawnbroker - - " !^" Mandavi ballivo - - - - - - - ib. Return to Ji. fa. against an executor, of nulla testatoris 399 Fieri Jeci to same - - - - - - ib. To Q.fi-fa. against an executor, when the levy is to be made of the goods of deceased, if not, then costs to be levied of the goods of executors - ib. Nulla bona to 2i. fieri facias against an executor, and a devastavit returned against them - - - ib. Fixtures not to be taken - - - - - 1 2 1 FORMEDON, return of 408 G. GAOLERS. Who they are -------so Sheriffs to have the custody of gaols - - "51 Except corporate towns - - - - " jb- But not of the King's Bench or Marshalsea - - ib. In every county there are two gaols - - * fb. Prisoners for debt and felons not to be together - ib. on escape warrants to be sent to the county gaol ib. Power to the lord chief justices and chief baron to settle a table for the fees of gaolers " ." " ^b. Gaoler to cause them to be hung up in a public room or place - - - - -- " -52 OFFICE OF SHERIFF. 008 GAOLERS — continued. Page. Prisoner to have a free resort to, in the day-time - 52 Gaols are for safe custody, and not punishment of debtors, and prisoners to be used with humanity - ib. No prisoner to be put in irons but for felony, &c. - ib. If the death of a prisoner be owing to cruelty, wilful murder in the gaoler - - - - - 53 Gaoler cannot receive any person on civil side with- out a warrant ------- ib. If prisoner escape, gaoler may retake - - - ib. Gaoler not to take bonds of prisoner - - - ib. Sheriff may discharge a gaoler at pleasure - - ib. If gaoler sufters an escape, action to be brought against sheriff - - - - - - -ib. Actions brought against gaolers, is meant gaolers to whom writs are directed ----- ib. Punishment for buying, selling or farming their offices ib. Liable to be attached for gross misbehaviour, or for not obeying rules of court, &c. - - - - ib. Gaolers are to allow debtors in custody to send for or have brought to them victuals and beer from what place they think fit - - - - - 54 And to have and use such bedding, &c. - - ib. As to rent -------- ib. GRAND CAPE, return of 354 H. HABEAS CORPUS Of the several writs of, and when granted - - 399 The sheriff to make a certain return - - . 403 What ought to appear ------ ib. If commitment be against law, the court ought to discharge defendant ------ ib. Cannot return resistance - - - - - ib. If there be an excom. capiend. - - - - ib. Return of hab. corp. cum causa - - - - 404 Another return when a defendant in custody of the late sheriff, and returned by the present - - ib. Return to be indorsed thereon - - - - ib. Another where defendant was in custody of the late sheriff, and this writ returned by the present - ib. Warrant to the gaoler to conduct the body before the chief justice ------ 405 — on attachments against the sheriff - - 88 Return from steward and portreeve of a boi'ough - 405 Return of the writ ------ 406 Return to a hab. coi-p. ad satisfaciend. in the late riots, by the warden of the Fleet - - - ib. 604 INDEX TO THE HABEAS CORFUS—conthmed. Page. Return to writ ------- 406 Party dead, good return - - - - - ib. Sheriff is to return the truth - - - - ib. May return cepi and languidus - - - . 407 Imprisonment for felony - - - - - ib. If sheriff is commanded to carry a prisoner to a cer- tain place out of his county, and in doing it he goes out of county, he hath authority so to do - 1 8 Return of commitment by commissioners of bank- rupt - 407 Return to hab. corp. out of the Crown- office, that the prisoner escaped - - - - - - ib. Sheriff 's return on a hab. corp. ad test. - - - ib. Of the writ ib. The delays made ------ ib. Formerly could not be returnable immediately, but now may _-.---- 400 Of the hab. corp. ad test. - - - - - ib. . ad satisf. - - - - - ib. Within three days after service to be returned, and body brought, if within twenty miles - - - 401 Charges to be ascertained by the judges, not ex- ceeding I2rf. permile - - - - - ib. Beyond twenty miles ten days - - - - ib. Writ how to be marked - - - - - ib. Who is to grant it ------ ib. Officer to certify true cause of commitment - - ib. After assizes proclaimed, no prisoner to be removed 402 Officers how to be proceeded against for not obeying writ - - ib. No excuse for sheriff or gaoler his not being paid - ib. HABERE FACIAS POSSESSIONEM - - - 151 What sheriff may return ----- 408 Always ready to deliver, but no one came - - ib. No such land, not good return - - - - ib. That he offered to demandant possession, but he re- fused to take it ------ ib. That sheriff was tenant - - - - - ' j''- Tenant not knowing land may pray the view - - ib. When sheriff makes the view he ought to warn the tenants -------- ib. Where part of a manor is in demand - - - 409 He may return that he was ready to make view, but none came ...---.- ib. Return of possession given ----- ib. li'ajl.jh. annexed, rmlla bona - - - - ib. Fieri Jeci - - - - - - - -ib. OFFICE OF SHERIFF. 605 HABERE FAC. VO^.—contmued. Page. Return no one came to show, or receive tlie posses- sion of the premises ------ 409 Returns ----_-.. lb. HAB. FAC. SEISINAN 151.408 Return to a writ oi hah.Jcic. seisin. - - - 41,5 Heturn to a writ of summons - - - - lb. HUNDRED - 2 HUSTINGS, Court of, in London 373 I. INDEMNIFIED, sheriff when to be - - - -134 INFANT cannot execute the office of sheriif > - 47* 353 INQUIRY. Sheriff's command by the writ - . - . 389 To summon a jury - - - - - - ib. Oath to the foreman ------ 390 To the rest of the jury - - - - - ib. Proof necessary in trespass - - - - - ib. Fraud not to be given in evidence - - - ib. In indeb. ass. plaintiff to prove debt - - - ib. On note, or bills, producing it sufficient - - ib. Nor on any contract in writing - - - - ib. Executor's not to give in evidence the want of assets ib. Jury may give interest - • - - - ib. Policy of insurance, what need be proved - - ib. If deputy, to be appointed under seal, two cannot be appointed ------- ib. Inquest of office ------- 391 Mandavi hallivo bad ------ ib. Sheriff may adjourn ------ ib. Inquisition on inquiry ------ ib. Return to the writ ------ ib. Return to an inquiry in replevin upon 17 Car. 2. - ib. Inquisition taken before the chief justice of C. P. - 392 Sheriff judge on a writ of inquiry - • - - ib. Inquisition where nominal damages are given on some counts, and real damages on remaining counts - ib. Writs of inquiry on 8 & 9 Wil. 3. how executed - ib. Writ of Trial, by Statute, 3 & 4 Wil. 4. - - 293 INQUISITION, how taken, and returns thereto - - 392 Deputations - - - - - - -391 On a writ of ad quod dammim - - . - 352 In dower --------ib. Partition - 359 To the extent process in Exchequer . - . 364 -J- Q Q 7 GOG INDEX TO THE INQUISITION— co/2^?M2ief/. Page. To an elegit as to goods - . - _ . 368 lands -■.--. 369 Inquisition on a capias utlagatum - - - - 350 The like on an extent ------ 385 What ought to be returned ----- 392 Return to be certain ------ ib. To make inquiry by oath of twelve men - - - ib. May return jurors departed before they gave their verdict --------ib. To be in writing ------- 393 If any doubt may arise what sheriff may return - ib. Sealing of sheriff and jurors now disused - - ib. INSANE. Weimn to Latitat - . - . -298 ISSUES. Vide Distringas 351 INTERPLEADER, remedy by 135 J. JUDGES - - - - 6s .JURIES. In civil causes there are two kinds of trial - - 263 Extraordinary, that oi grand assize - - - ib. The other on attaint ------ ib. Ordinary trial ------- ib. Sheriff by virtue of this writ issues his precept to his bailiff - - - ib. Return of venire and distringas - - - - 264 If sheriff be not indifferent, coroner to return the jury ib. If he is not, then e/wo/-5 - - - - - ib. Trial on the criminal side - - - - - ib. When prisoner has pleaded, sheriff to return a panel 265 Of the jury on civil side - - - - - ib. Before commissioners of oyer and terminer, to return according to a precept - - - - - ib. Misdemeanors ------- ib. How many sheriff to return on grant inquest - - ib. The Act relating to Jurors, 6 Geo. 4, c. 50. - - ib. Qiialijications in Eyigland to serve in superior courts at assize and sessions . _ - . - 266 In Wales ib. Who are exempt ------- ib. Aliens, except on juries de med. - - - - 267 Convicts and outlaws disqualified - - - - ib. Clerk of peace to issue warrant in July ... 268 to annex printed forms of precepts and returns to warrants - - - - - ib. High constables to issue precepts to churchwardens and overseers to make out jury lists - - - ib. OFFICE OF SHERIFF. 607 JURIES — continued. Page. Where several in one hundred, each responsible for the whole ...---._ 268 Parishes extending into several hundreds to be treated as the hundred in which parish-church is - 269 Power of justices as to extra-parochial places - il). Churchwardens, &c. to make out lists of persons and residences ------- ib. Lists to be fixed on church-doors, and kept by churchwardens for inspection - - - - 270 Petty sessions to be held in last week of September ib. Lists to be then considered, reformed and allowed ib. Not to be allowed by petty sessions without notice - 271 Lists, after allowance, delivered to high constable, and by him to next quarter sessions - - - ib. Tax assessments and poor rates to be inspected - ib. Lists kept by clerk of peace copied into a book to be delivered to the sheriff . _ - . - 272 <' Jurors book" to be delivered by sheriff to successor ib. Form of venire and of precept for jurors at gaol- delivery and sessions - - - - - ib. Jurors to be returned from " jurors book" by sheriff, coroners and elisors - - - - - ib. Sheriff on return of writs of venire, to annex panel of jurors - 273 If plaintiff proceed not, may sue another venire - ib. Defendant may do the like ----- 274 Returns of jurors in counties palatine - - - ib. in Wales ----- 275 Copy of panel to be kept in sheriff 's-office for in- spection --------ib. In criminal cases juries to be returned as before - 27G In cases of high-treason, copy of panel to be delivered — exceptions ------- ib. Same panel for criminal and civil side: juries to be summoned in two sets - - - - - 277 In cases of view, trial appointed during attendance of viewers - - - - - - -ib. courts may order special writs of venire Jh., distringas, or hab. corp. - - - ib. Viewers appearing, to be first sworn - - - 278 Jurors to be summoned ten days before attendance ib. time in London, &c. as heretofore - - ib. Names of, to be delivered to associate, and ballotted for jurors _.----- 279 If verdict not brought in, twelve others to be drawn ib. Same jury may try several issues in succession, if no objection _.----- ib. 608 INDEX TO THE JURIES — continued. Page. Want of qualification, cause of challenge in common jurors ---.---- 280 Not of special jurors - - - - - - ib. King to challenge only for cause - - - ib. Prisoner allowed twenty pefemptory challenges in felony -------- ib. Courts to have power to order special juries to be struck -------- ib. Special jurors, persons qualified as- - - -281 Special jury, how nominated - - - - ib. Parties may, by consent, have it struck in the ancient mode -- 283 Same special jury may, by consent, try several causes — Special juror having once served may be discharged by court — Cost of — Fees to - - ib. Mode of striking in counties of cities, &c, as here- tofore -------- 284 Tales de circumstantibus, as to taking jury of - - ib. Fines on jurors making default - - - - ib. Sheriff indemnified if he returns persons on the list 285 If he returns one not on the list - - - - ib. If clerk records appearance, when juror does not appear --------ib. Sheriff to register names of such as have served, and give certificates - - - - - ib. Clerk of peace to make out list of parties attending, and transmit to sheriff to register - - - 286 Certificates of service to be given by clerk of peace ib. Jurors not to serve again, within what periods - ib. No money to be taken to excuse from service - 287 None summoned unless named m sheriff's warrant ib. Penalties on high constables neglecting to issue pre- cepts ----- - - - ib. On churchwardens, &c. neglecting to make out lists, 288 penalties on for neglecting - - 289 Juries de medietate ...... 290 Justices not be summoned as jurors _ - . 291 Inhabitants of Westminster not to serve in Middlesex ib. Qualification in cities and liberties - - - ib. in London - - - - - ib. — on inquests ----- 292 Only persons qualified to serve in civil cases to be returned on criminal ----- 291 Courts of Nisi Prius may fine jurors - .. - 292 Sheriffs, coroners and commissioners may fine - ib. Parties summoned in inferior courts, forfeitures for not attending ------- 293 OFFICE OF SHERIFF^ 609 JURIES —cnutimied. Page. Fines, how to be levied, recovered and applied - 2(^)3 Conviction, form of, not quashed nor removed - 294 In actions, what may be pleaded — venue in - - 295 Attaint, writs of, abolished - - - - - ib. Repeal of former acts ------ 2y(> Warrant for returning lists of jurors . . - 2yy Precept for ---__-. 300 Return, form of- - - - - - - 302 JUSTICES. See Jtiry 291 KING'S DEATH, how affecting the officers - - - 10 KING'S DEBTS 135 KING'S SERVANTS ()3 L. LANDLORD. No goods, &c. shall be taken in execution, unless the party, before removal thei'cof, pay the landlord the rent due - - - - - - -13^^ Proviso not to hinder the levy of debts due to the Crown, or fines - - - - - - ib. Executors and administrators within the act - - 137 Landlord must be paid without deduction - - ib. A ground landlord not within the act - - - ib. Landlord must give notice to the sheriff of rent being due - - - - - - - 138 When there are two executions, landlord cannot have a year's rent on each ... - - ib. Not entitled under a commission of bankrupt - ib. Not entitled on an extent, although he distrain pre- vious to the entry - - - - - ' 1 39 An immediate extent prevails against landlord's dis- tress, though tahen before - - - - ' l'^* The landlord's remedy for a year's rent - - ib. If goods be seized and not sold . - - - ib. A bill of sale made, held to be a removal - - ib. Entitled to rent on a capias ullagaium - - - ib. LATITAT, Return to - - - - - - - 409 LEVARI FACIAS - - - - - - -141 Execution on. See tit. Execution - - - - ib. Return. What a good return ------ 409 R R 610 ' IINDEX TO THE LEVARI FACIAS— continued. Page. To levy the profits of the land . - . . 409 Nulla bona ------- ib. Cepi of lands and houses - - - - - ib. LIBERATE, return of 410 LIBERTIES AND FRANCHISES ... - 47 LINCOLN (vide Sherif.) LONDON AND MIDDLESEX, Sherifs of - - - 20 The act of common council relating to the election of sheriffs -- - - - - - -21 "Who to elect sheriffs, and on what day - - - ib. In what instances election to be on other days - 22 When persons elected they are to take the office - ib. How long they are to hold the office - - - ib. In what instances old sheriffs are to hold over - ib. In what order the old aldermen to be put up - - 23 Power to lord mayor to nominate persons ■ - ib. And how they are to be put up - - - - ib. 400/. to be paid to discharge persons nominated - ib. How persons nominated by two liverymen to be put up - - - - - - - - ib. When and how personst o be excused for insufficiency 24 In what instances the persons elected to give a bond ib. And the forfeiture in default - - - - ib. Penalties on persons elected on the 14th, or between the 14th and 22d of Sept. when no vacancy, who shall not take the said offices in time - - - 25 Penalties on persons elected on the 22d, or betvA'een the 22d and 28th of Sept. or in cases of vacancy, or of sheriffs holding over, who shall not take the office in time -------26 How penalties are to be recovered - - - ib. In what cases sheriffs to have part of the fines, and how the rest applied - - - - - ib. No person fined upon any former acts, to be eligible 27 No person to serve a second time . _ - ib. Nor tlipold sheriff to hold over - - - - ib. The oath of the sheriffs of Zo?zc?o«, and addition - 28 To attend on Michaelmas day to be sworn in - - ib. And what other day at the Exchequer - - - 29 On the morrow after Low Sunday to attend Exchequer ib. So on the morrow after Michaelmas day - - ib. To present Barons with loaves of sugar in Mich. Term ib. As to Serjeants and yeomen - . - - - 29 Returns .-.-.--.ib. One sheriff cannot make a return without his fellow ib. When one dies, the other cannot act - - - ib. London had no sheriffs in 13 Ed. 1. - - - ib. 29 OFFICE or SHERIFF. 611 LONDON AND MIDDLESEX, Sheriffs of— continued. Page. A man condemned for felony, and imprisoned in Newgate on the Middlesex side, after a writ of execution for debt issues, directed to the sheriffs of London, wlio serve it, afterwards he was par- doned ; held that such service of the execution was unlawful, because he was on the Middlesex side ---.._.. The sheriff may serve it or not ; if he does, will be held good ----..-30 If a person be taken by sherifi' of Middlesex and put into Netvgate, and after another writ comes directed to the sheriffs o( London, though Newgate is the prison for both counties, yet he shall not be said to be in execution on this new writ in London • ib. Commitment by sheriff of Middlesex is not a com- mitment in London, though the sheriffs of London and Middlesex are one - - - - - ib. LUNACIES. Sheriff how to proceed on precept of commissioners sent him -------- 410 The oath to be administered to the foreman - - ib. Oath to the jury - - - - - - - ib. Return of writ ------- ib. M MACHINERY DEMISED, may not be seized - -121 MARSHAL, and see tit. Escape - - - 66. i()3. 178 MEMBERS, ELECTION OF, TO SERVE IN PAR- LIAMENT. When parliament summoned, Chancellor sends war- rant to clerk of the crown, Sec. who issues writs, (S:c. 228 Within two days after receipt of, proclamation to be made, election to begin not later than the 16th, nor sooner than the 10th day - - - - ib. Proceedings before 25 Geo. 3. - - - - ib. For Neiv Shoreham ------ 229 For election of citizens and burgesses - - - ib. What the notice ought to express - - - - ib. If sheriff die ib. How to proceed on the day - - - - - ib. Acts of Parliament stated from 7 //. 4. - - 230 Sheriff, within eight days, to make precept to every mayor, &c. ------- ib. For election of knights - - - - - ib. Sheriff not making due election .. - - - 231 K R 2 612 INDEX TO THE MEMBERS OF FARhlAMENT— continued. Page. Writs to be delivered to proper officer, who is to indorse the day when received, and make out the precept -------- 231 Precept to be dehvered within three days after receipt of the writ ------- ib. The officer who receives it to indorse the day of the receipt, and give notice of the time of election - 232 To take no fee for return - - - - ■- ib. County-court to be held at usual places, and sheriff to proceed to election, unless, &c. - - - ib. Sheriff, &c. to take poll if required, and to appoint a number of clerks ------ ib. Name of freeholders set down, for whom the poll, and a person to inspect the clerks - - - - ib. Freeholders to be sworn - - - - - ib. Oath -• ib. Sheriff not to adjourn, unless candidates consent - ib. Copy of poll to be delivered, if required, payings for 233 Sheriff committing a wilful offence forfeits 500^. - ib. Poll may be adjourned from Winchester to Isle of Wight ........ 244 Writs to be returned within 14 days after election - ib. Sheriff on return of writs to pay the ancient fees - ib. And charge the same to the king - - - - ib. Officers of Cinque Ports allowed six days for delivery of precept ------- ib. Penalty on sheriff for not making return - - ib. Every candidate, at the request of another, or of two voters, to take the oath, &c. - - - - ib. Oath - - - - ib. If candidate for a city. See the oath to relate only to 300/. per ann. ...... 234 The oath to be administered by the sheriff, &c. who shall within three months after taking thereof cer- tify the same mto the K. B. or Chancery, or for- feit 100/. - - - - - - - ib. Candidates refusing to take the oath, election void - ib. Electors of parliament-men to take oath - - ib. Elector's oath ------- ib. Presiding officer to administer it - - - - ib. Sheriff, or other returning officer, admitting any to be polled before sworn, to forfeit 100/. - - 235 Voters to incur penalty - - - - - ib. Returning officer after reading the writ to take oath ib. The oath ib. Justice of peace may administer the oath - - ib. Penalty of wilful perjury - - - - - ib. Persons convicted, never permitted to vote - - ib. OFFICE OF SHERIFF. 013 MEMBERS OF PARLIAMENT— cow/mwcJ. Page. Act to be read by sberifF, (S.c. after reading the writ 235 Every sheriff shall, for wilful offence, forfeit 50/. - ib. Another oath appointed instead of that of 10 Aun. c. 23. ib. The oath -------- 236 Which oath, sheriff, under-sheriff or clerks shall ad- minister ... - - . - . ib. Booths to be erected at the expense of the candidates ib. In proportion to the hundreds, &c. not exceeding fifteen -------- ib. Sheriff to appoint a clerk at each booth for polling - 237 Lists of towns, 6cc. for each booth allotted to poll at - - - - - - - - ib. Of which lists, copies to be given at 2 s. each - - ib. Voting at each booth to be regulated by the list - ib. A cheque-book for every poll-book allowed each candidate ------- ib. No sheriff to adjourn court longer than sixteen days ib. Sheriffs, &c. offending, to be prosecuted - - ib. Persons demanding to vote, if required, to take an oath 238 Tlie oath --------ib. Sheriff, &c. to administer same * - - - ib. Wilful (and subornation of) perjury to be punished as 5 Eliz. and 2 Geo. 2 direct - - - - ib. To give public notice of receipt of writ, and to pro- ceed to election within eight days after receipt of the writ --------ib. Shei-iff offending may be prosecuted - - - 239 Suits to be commenced in nine months - - - ib. Statutes of jeofails to be allowed in any action - ib. Plaintiff discontinuing his suit, ^c. shall recover treble costs ------- ib. Limitation of the act ------ ib. Penalty of antedating the admission of any freeman, 500/. -_-.--. -ib. The books of admission of freemen to be open for inspection upon demand of a candidate, or two freemen, on payment of 1 5. - - - - ib. Copies and minutes of admissions to be given - ib. Books, &c. to be produced, if demanded, on penaltj- of 100/. -ib. Which may be recovered, with full costs of suit - ib. Provided a prosecution be commenced within a year ib. Act to be openly read at all elections by freemen - ib. No vote in right of an annuity - - - - ib. Not to extend to London or Nonvich - - - ib. R R 3 G14 INDEX TO THE MEMBERS OF PARLIAMENT— con^/wH^r/. Page. And in like manner with respect to such quahfications as shall come by descent, marriage, devise, presen- tation, or promotion - ... - 240 Oath .-.--... ib. Officer guilty of any neglect forfeits 100/. - • ib. Limitations of prosecutions ----- ib. Undue elections ------- ib. Poll to begin at latest the day after demanded - 241 Unless Sunday ------- ib. And must continue but fifteen days - - - ib. Return to be made at the close of the poll or day after -------- ib. Unless scrutiny demanded - - - - - ib. Regulations for making returns in case of a scru- tiny ib. Objections to voters to be decided alternately - ib. Poll to be kept open seven hours daily - - - ib. Of closing the poll ------ ib. Time fixed .-..-._ 242 If poll be once declared ib. House punish misconduct in officer - - - ib. Poll once closed cannot be continued - - - ib. Within two days after receipt of writ, proclamation made of the election for county - - - ib. To begin between tenth and sixteenth day after proclamation - - - - - - -ib. Provided the usual adjournment of the court take place -------- ib. Oath of qualification to be taken previous to polling ib. Oath 243 ■ to be administered by the returning officer - ib. Who is authorized to administer oaths during scrutiny -------- ib. Poll clerks to take oath for the faithful discharge of duty ---.----ib Persons taking, or suborning others to take, a false oath, liable to pains of 5 Eliz and 2 Geo. 2 - ib. Act not to extend to places where particular regula- tions enacted by statute - - - - - ib. If returns not duly made, select committee to be appointed conformable to 10 Geo. 3. c. 16, and 1 1 Geo. 3. c. 44 244 Notice of meeting of committees to be given to the petitioner and returning officers - - - ib. When returning officers cannot be found, or do not appear at committees, other persons may be ap- pointed to appear in their stead - - - ib. OFFICE OF SHERIFF. 015 MEMBERS OF VARLIAMENT— continued. Page. Where more than one petition is presented, the House to determine whether the returning officer is to strike off from the hst of members drawn by lot - 244 Returning officer Hable to prosecution for oftences - ib. Or sued for neglecting to return persons duly elected ib. Actions to be commenced within one year after offence, or six months after the conclusion of pro- ceedings in the House - - - - - ib. Elections for London. If poll demanded ------ 245 On elections by the liverymen, and at wardmotes, presiding officer to appoint a convenient number of clerks to take the poll, &c. - - - - ib. None to be polled who is not sworn - - - ib. Liveryman's oath __---- 246 On refusal to swear, the oath to be rejected - - ib. The oath of 1 Geo. 1, c. 13. to be taken, if required - ib. Presiding officer and sworn clerk to administer the oaths on penalty of 60Z. - - - - - ib. Penalty on falsely taking the oaths, or suborning - ib. Presiding officer how to act if a poll demanded - ib. When the poll to be finished - - - - ib. If a scrutiny be demanded - - - - - 247 Scrutineers not to exceed six on each side - - ib. Scrutinies when to begin, and when finished - - ib. Scrutinies on elections at wardmotes - - - ib. True copies of the objections against the pollers - ib. A true list to be given of the voters disallowed - 248 Mayor to issue precept to companies to bring in lists ..--.--- ib. No persons to have a right to vote who have not been upon the livery twelve calendar months, and paid fines ------- ib. No person within two years discharged from taxes - ib. Forfeitures how to be applied - - - - ib. Of the Return. When election closed, precept, &c. to be returned to the sheriffs, with the writ and indentures taken for the shires " -49 Precept for the election to serve in parliament at the general election for knights of the shire - - ib. The indenture '. " '^o Indenture for returning one knight of the shire in the room of one called up to the House of Lords - ib. Precept and return of members for a borough, directed to bailiff ^51 Bailiff's indorsement ------ 253 R R 4 616 INDEX TO THE MEMBERS OF PARLIAMENT— cow^/nwe^/. Page. Return of the precept ------ 252 to the writ - - - - - - ib. Indenture -------- ib. Precept to the mayor of a city - - - . 253 Return of ditto ----.-_ ib. Indenture of election - - - - - - ib. of return by constables and burghers - 254 Precept from sheriff o? Middlesex to bailiff of West- minster for the election of one citizen - - ib. Return ---_.... 2^^ The indenture ------- ib. Another of citizens and burgesses - - - ib. Chester to have two knights and two burgesses for the city ------_. 256 Sheriff against election to cause seven tables to be made at the cost of the candidates - ., - ib. Durham two knights, and two for city - - - ib. How to be chosen ---... ib. Cinque Ports ------- ib. Wales, two for Monmouth, one for borough - - 257 One for shire of Brecknock, &c. and every other shire ib. All the king's subjects in Wales shall find knights - ib. Haverfordxvest, one burgess - - - - - ib. Sheriff to make proclamation for assessing and levy- ing knights' wages ------ ib. For payment of wages in Wales - - - - ib. Every mayor, &c. shall levy and pay wages to burgesses -----_. 258 Rates for the burgesses in Wales - - - - ib. Former wages allowed ib. Present wages -.--_._ ib. Cambridgeshire excused, and manor of Burlexvas charged -------_ ib. As to the Return. Negligent return ib. False Return. Sheriff may traverse ------ ib. Returns made contrary to stat. incur two penalties - ib. Suit to be within three months - . - . 259 Mayor, &c. for false returns forfeits 40/. &c. - - ib. False return is against law, and double damages - 260 All contracts to procure a return void, and forfeiture ib. Return contrary to the last determination, a false return --------ib. Sheriff to return according to law, and will give no directions ---._-. jb. Remedy for false return - - - - - ib. OFFICE OF SHERIFF. (Jl? MExMBERS OF P ARLIAMENT— continued. Page. List of counties, cities and boroughs, sending Members 260 Cinque Ports -----._ 2G2 For Wales >. . -ib. N. NE EXEAT REGNO, return of 411 NIL DIGIT, judgment by and execution, not to prevail against assignees - - - - . ~ 1 1 ^ NON OMITTAS. Nan omitas may issue in the first instance - - 48 O. OFFICERS OF BOTH HOUSES, &c. . . . 6^ — . OF COURTS 66 OUTLAWRY. Capias iitlagatum, returns to - - - - - 348 Exigent and Proclamation ----- 3^0 See Bail 78 PALATINE, COUNTIES .-..-. 4 PARLIAMENT. Privilege of, from arrest - - - - - 63 of the Members - - - . , 228 return of - - - - - - ib. PARTITION. Warrant on the writ of partition ... - 3^6 Return of the writ --.-._ 2^>j Judgment on the writ of partition - - - - ib. If the sheriff cannot attend, under-sheriff with two justices may ------- ib. In case of disabihty of sheriff or his under-sheriff, the justices are to attend - - - - - 358 What sheriff is to do - - - - - - ib. The sheriff's fees ------ ib. Ought to be shown the land ; if not, are bound to make partition ------ ib. Upon partition between tenants in common, and one purchase land intermixed, ought to show them - ib. What sheriff may assign . . - - . 3^^ Advowson --------ib. Rent-charge, &c. ------ ib. If CO. pal. how to make partition - - - - ib. How coparceners of a manor are to jnakc partition ib. G18 INDEX TO THE PARTITION— continued. Page. To name the lands in the inquisition - . - 359 Inquisition on a writ of partition - - - - ib. Parcels may be set forth at large, and rents in the in- quisition, without annexing a schedule, as on eligit 360 PARTNERS, goods of, taken in execution - - - 112 PATENT OF OFFICE 20 PATENTS AND ACCOUNTS. Clerks and officers concerned in passing patents or accounts to take fees as in schedule - - - 316 Lord treasurer, &c. may order clerks, &c. to give in a particular of rents, &c. set in process, and re- duce same as shall be just - - - - ib. Sheriff not obliged to charge in his accounts money paid by virtue of the Act of 4 & 5 fV. S^ M. - 317 No sheriff, &c. to be attached, &c. for not finishing his accounts, but by writ under the Exchequer seal ib. If any clerk, &c. in passing sheriff's account, shall hinder the same, he shall make satisfaction - ib. No sheriff, (except Chester, &c.) in surplusage by disbursements for service, except, &c. shall be obliged to take out a record, &c. - - - 318 Sheriffs of Wales to account before the auditor - ib. Auditors of Chester, &c. - - - - - ib. Sheriffs of city of Chester to account before the audi- tor of the county of Chester - - - - ib. Fees to be paid by sheriffs in Chancery, &c. pursuant to new Act, and the Act 3 Geo. i,for patents and passing accounts - - - - - -3^9 Quietus --------ib. PEERS - 63 POCKET SHERIFF 9 PONE, writ of 41 1 POSSE COMITATUS. By common law sheriff may raise the posse comitatus 106 Who are liable to assist, and who are excused - ib. Not obliged to take it, if mesne process - - - 107 But must take it after resistance - - - - ib. If a distress be impounded in a castle, &c. may raise, &c. ib. Not confined to numbers - - - - - ib. Butbailiff must have a warrant to do it - - - ib. If he takes posse without cause, yet all discharged, and they may justify - - - - - ib. Sheriff bound to execute executions, and to raise the posse -------- ib. Not to raise posse on civil process, unless resistance 1 09 OlFICE OF SMEUIFF. fitO Page. POUNDAGE. Ylde Fees 114.159 PRECEDING AND SUCCEEDING SHERIFF - - 102 PRISONS. Who is to claim a prison - - - - - 50 PRISONERS. Duties of sheriffs to, after arrest - - - - 71 PRIVILEGED FROM ARREST, persons - - - Ca places - - - 63 PROCLAMATION. See Exigent - - - - 370 PROFFERS 315, &c. PROTECTION given by the court to sheriff - - - 134 Q. QUARE IMPEDIT. What sheriff may return - - - - - 412 Nihil- . - - ib. Tarde -------- ib. QUARTER SESSIONS. See Sessio7is. QUIETUS 319 R. RECOGNIZANCES to be sufficient ... - RECORD. FA. LO., return to 412 RENDER of defendant in discharge of bail - - 86. 92 RENT, payment of. Vide Landlord. REPLEVIN. What a replevin lies for - - - - - 188 When to have a separate replevin - - - - 189 It lies of all goods and chattels - - - - ib. But he must have property in him - - - ib. It lies against him who takes the goods - - - ib. But not if taken beyond sea - - - - " j^- Nor in execution ._---- ib. Nor if seized by warrant from a justice of peace - ib. If under sheriff grant such replevin, liable to be at- tached ." ". " ^^^ Mode of contesting the regularity of distress is re- plevin --.-----lb. May enter plaint for that purpose in county-court - ib. Sheriffs of counties to make four deputies - - ib. Two kinds of pledges -- - - - -19* 620 INDEX TO THE REPLEVIN— cowf?w2 Geo. 3, c. 50 - - - - - - 4'; THE EXD OF THE INDEX TO THE OFFICE OF SHEIilFF. INDEX TO THE OFFICE OF CORONER. A. ABJURATION, . Page. Of coroner's record of an abjuration, or of confession of felony 488 ACCESSORY before the fact 509 ACCIDENTAL DEATH. Driving a cart ■--.--- 507 If a man finds a pistol ------ 508 Death ensuing by an unlawful act - - - ib. Workmen throwing rubbish off a house - - ib. ADMIRALTY CORONER, vide tit. Coroner. B. BASTARDS. Killing - 509 Concealing birth of - - - - - - ib. BURIAL OF DEAD 517 C. CHANCE MEDLEY. Chance medley and manslaughter, the true criterion between _._--_- 506 As the manner of defence so is the time - - 507 Duel - - |b. Sudden quarrel ------- ib. Master and servant, parent and children - - ib. Death occasioned by accident or innocent recreations ib. Extends not to prize-fighting - - - - ib. CHARGE. Coroner's charge to the jury - _ . - - 514 Particular charge not necessary - - - - 5}5 As to deodand ------- ib. flight ib. INDEX TO THE OFFICE OF CORONER. 639 CHARGE — continued. Paee. The further charge of the coroner - - - 515 After charge given, and coroner's proclamation as to evidence ------- ib. CORONER. An ancient oflicer --__„_ ^yo A certain number in every county - - - ib. Of equal antiquity with the sheriff - - - ib. The court of -----._ jb. There are three kinds of coroners . - _ ^y^ Ch. J. of K. B. principal coroner - - - - ib. So the other judges of K, B. sovereign coroners, n. (a) ib. Coroners are by charter or commission - - - ib. Though the stat. gives power to elect coroners for counties, yet there is a saving to the king, and other lords, to make coroners of liberties, &c. - ib. Coroners of the Admiralty and Verge - - - ib. Of coroners virttite electionis ----- ^y^ London and Westminster, 8fC. - - - - ib. Wales, Cheshire, S^c. - - - - - - ib. Of the Coroner of the Admiralty. Of the main stream ib. What it extends to - - - - - - ib. K. B. have concurrent jurisdiction with the admiralty ib. And the coroner of county, as of the admiralty, may make inquisition on death happening in great rivers, arms of the sea, &c. - _ > _ ^^g If a man of war is injra corp. com. land coroner may go aboard ---_... jjj^ Inquisition taken before coroner of the admiralty to be returned before commissioners of gaol-delivery ib. Of the Coroner of the Verge. Coroner of the verge or king's house - - - ib. The coroner of the verge anciently had power to do all things in the verge, exclusively of the coroner of the county ------ - ib. But now may join ------ ib. But if death happen ivithin the verge, the coroner of the county cannot take inquisition by himself - 477 Aliter if he be coroner of the county, and of the verge -,-__.-- b. If a nmrder or manslaughter be done within the pre- cincts of the palace, limited by stat. 33 H. 8. - ib. Inquisition to be taken by coroner of household only ib. And by whom ------- ib. Coroners of the County. How chosen ---.._- jb. And who are to be chosen - - - » - 478 640 INDEX TO THE CORONER — continued Page. Exempt from serving on juries - - - . ^yg To have land to answer - - - . - ib. All coroners of counties to be chosen in full counties --------lb. Saving to the king and others, who ought to make coroners, their rights - - - - - ib. Freeholders only to vote - - - - - ib. The office does not determine by the demise of the king - - - - ' - - - - ib. In some counties two, others four, and some six - 479 The writ de coronatore eligendo - - - - ib. This writ is close ------ ib. Hotv to proceed on Death of Coroner. Affidavit _ _ ib. Petition for the writ ------ 480 Of filing it - - ib. Sheriff's duty ------- ib. Coroner s AutJwrity in talcing Inquisitions. What they are to inquire of - - - - - ib. An inquisition by the oaths of lawful men sufficient 481 Inquest to be taken on view of the body - - 483 Whei-e it cannot be found, or is so putrified, &c. •what is to be done ------ ib. If interred before inquest, it is indictable as a misde- meanor to bury before or without sending for the coroner, n. (a) - - - - - - - ib. May in convenient time take up the body - - 484 Inquisition need not be taken in same place where body was viewed ------ ib. What inquiries coroners may or may not make of accessories ------- ib. To inquire of all circumstances - - - - ib. If any person be slain in or murdered in the day-time, and murderers escape - - - - - ib. If coroner remiss in duty - - - - - ib. After felony coroners to deliver inquisitions, &-c. - ib. To put in writing the eflPect of the evidence given being material, and bind over witnesses - 485 Ld. Ch. J. Hale's distinction touching the examina- tion taken by coroners and justices of peace and coroner -------- ih. Coroner to put the evidence in writing - -v - ib. Inquest to hear evidence on oath - - - - ib. A presentment found by grand jury quashed, the coroner not having taken it - - - - ib. Coroners have no power to take any indictment ex- cept of death -»----- 486 Misadventure ------- jb. OFFICE OF COUONEU. 041 CORONER — continued. Page. Persons difing in Gaol. Coroner to inquire of" all w!io die in prison - - 48G Who the jury are to be - - - - - ib. If death happen in K. B. - - - - - ib. If a prisoner die a natural death - - - - ib. Treasure trove. Coroner ought to inquire oftreasure trove - - ib. With respect to and Appeal Jor Felony - - - 487 Of traversing and quashing Inquisitions. Formerly the judges would not receive a verdict ac^ quitting a prisoner of the death of a man, unless they found who did the fact ; but now exploded - ib. If a person were slain, now exploded - - - ib. The coroner's record of an abjuration or confession of a felony _-.._«- 488 Where town cannot traverse the inquisition - - ib. Return of depositions o^Jelo de se - - - ib. Melius inquirendum - - - - - - ib. If coroner's inquest be quashed - - . - 489 When coroner may take a new inquisition - - ib. Where the act of one Coroner shall he as effectual as if done by all. One coroner may execute writ, but all must return 490 If above two, and one die, the others may execute writ ----.._. ib. But if only one survive - - - - - ib. Of Challenge .---..- ib. Of Coroner s Fee, see tit. Fees of Coroner. Of discharging the Coroner, and for 'what Misdemeanors punished. Court will not suffer writ to issue for removal but on affidavit -------- 493 May be moved for reasonable cause - - - 494 If writ for removal be grounded on false suggestion - ib. If coroner be remiss in his office, to be amerced - ib. As if he return a wrong presentment - - - ib. Or in making no inquisition - - - - - ib. Or not certifying same - •• - - - ib. If he is convicted of a misdemeanor in his office, to be removed ------- ib. To return his inquisition at the next gaol-delivery, note («) ib. Coroner convicted of misdemeanor in his office to be amoved - - - ib. Court may move him from office - - - - 495 If coroner so convicted be appointed by a lord of franchise,