"C-NRLF nC * \ m&* L*~ A- 9%ttl \>v^ m c-^ w ^ AM <* \ A OFFICE OF BAILIFF OF A LIBERTY. OFFICE BAILIFF OF A ///t/t^/ LIBERTY. / • By JOSEPH RITSON, Efq. BARRISTER AT LAW, LATE HIGH BAILIFF OF THE SAVOY. "^ Ballivus cujuscimque manerii e(Te debet in verbo verax, et in opere diligens ac fidelis, ac prodifcreto nppruatore cognitus, plegiatus, & ele&us, qui de communioribus legibus pro tanto officio fufficienter fe cognofcat, et quod fit ita juftus, quod ob vindictam vel cupidita'.ern non quxrat verlus tenentes domini, vel aliquos fibi fubditos, occafiones injuftas, per quas dcftrui dehent, feu graviter amerciari. Fleta. /. 2. c, 73. LONDON: PRINTED BY A. ST RAH AN, LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY; FOR J. BTJTTERWORTH, LAW-BOOKSELLER, FLEET-8 1-REET. ^ ^ # /^ f, cK , L . l8ll ry LOAN STACK ADVERTISEMENT. HPIIE little work now offered to the public -*- was originally compiled by Mr. Ritfon about the fame period as fimilar treatifes, on The Office of Con/table, and The Jurisdiction cf the Court' Lcet, publifhed in his lifetime. The authors attachment to the fubject, it is believed, induced him to defer the publication of the prefent digeft, in the hope of increafing its value by ampler information or more diligent refearch ; and this object appears to have been fufficiently purfued, during the latter years of the authors life, to anfwer his wifhes, as the work was left by him in every refpect ready for the prefs. The editor feels it due to the memory of his much honored and lamented uncle to add, that the recent publications to which Mr. Ritfons name, from interefted motives, has been, very unwarrantably, affixed, are not intitled to any credit. JOSEPH FRANK. Stockton upon-Tees, nt February i8u. 048 PREFACE. r T" , HE fubject of the following digeft is not, as may -*■ be haftily imagined, a matter of mere curiofity or antiquarian refearch. The officer of whom it treats exercifes his function in many parts of the kingdom, in its fulled extent, at this day ; though the attention requifite in certain branches of his duty may in fome places, no doubt, have induced him to neglett them. The want of fuch a compilation as the prefent mull have been more or lefs felt by every one who has a£r,ed in the execution of this office ; and indeed it ought to feem much more extraordinary (confider- ing the multitude of fimilar publications on other fub- jects) that it mould not have been attempted long ago, than that it appears at prefent. Little can, and lefs need be faid in favour of a work which has no obligations either to genius or to judgement : fome labour, however, has undoubtedly been exerted in the compilation, which, fhould it have the good fortune to prove fo far ferviceable to thofe whom it mod concerns, as to render the discharge of an ancient and honorable office an object of lefs difficulty or hazard, the « compiler' will not have rea» fon to regret. CONTENTS. Page INTRODUCTION xi BOOK I. Of a franchife or liberty - - i Chap. I. Of franchifes in general i II. Of the liberty of Retorna Brcvium, or return of writs - 3 BOOK II. Of the bailiff of a franchife or li- berty - - - - 16 Chap. I. Of his quality - - -16 II. Of his creation or appointment, and intereft in his office - - 17 III. Of his qualification - - 18 IV. Of his power and capacity ; i. e. what he may or may not do or be - 20 V. Of his duty, i. e. what he muft or fhall do or not do - - -26 VI. Of his indemnity and protection 54 VII. Of his refponfibility and punifhment 59 VIII. Of his fees - - - 68 IX. Pleadings* - - - 71 Appendix - - 76 [ » 3 INTRODUCTION. BAILIFF (Bail/if, or Baffle French ; Ballivus, Latin ; from balliare to deliver, intruft, or com- mit,) is the name given by the Normans to thofe mini Iters of the law whom the Saxons called gepepa, greve or reve *: an appellation which, however cor- ruptly, we ftill retain in the word J/ierif, (fcyne- genera, or Jhire-reve,) and by which the bailiff of a manor is in many parts of the kingdom known to this day. The fheriff himfelf did not, it is true, long continue to enjoy the title of bailiff, which gave place to the more honorable one of vicecomes or vifcount [qui fun- git ur vice comitis,) by which name alone he was con- ftantly (tiled in all judicial proceedings, till the pro- greffive afcendency of the Englifh tongue reftored to him his ancient and original appellation. His county, however, is ftill called his bailiwick f , he is often mentioned in Magna Charta and ancient ftatutes along with alii fal/ivi, and is himfelf frequently included under that titled Between this officer and the bailiff of * From jeriepen tollere, rapere, ex'igcre. Exactor Regis (fc. muhtarum Iff jurium Juorum"). Ideo fell, quod mulctas regias et delinqtientium facilitates, inji/cum rapercnt, cxigerent, deportarent. Spelman, voce reve. f See Co. Lit. 168, b. Whenever the iheriff in any judicial pro- ceedings fpeaks or is fpoken to of his county, the law in fael has regu- larly no other name for it ; in comitatu meo or tuo for inftance has (fre. quently at leaft) a very different meaning. i 2 Inf. 19. Blount, voce Bailiff. And fee Forte/cue en Monarchy, 124* Scd quia vicecomes . .full . . . maguus domini Re^is baliivus- M. Paris INTRODUCTION. of a hundred, manor or liberty, fuch a perfect refem- blance appears to have fubfifted, in all refpects, that there cannot be a doubt that both were the produce, if not of the fame hand, at leaft, of the fame fyflem. The divifion of the kingdom into counties, hundreds and tithings, is well known to be owing to the wife policy of the great iElfred *; each county, hundred or tithing is agreed to have been fubje&ed to an officer known by the common name of the genepa ; he who prefided over the county at large being ufually, by way of diftin£tion, called the heh or r-cyne-genepa and fometimes the pcyVman, as the others were fliled the hunbreb and typing- genepa or the hundreder, and tithingmanf . We are but imperfectly acquainted with the duty of this officer till after the conqueft. It is faid, indeed, that the fheriff, in the time of the Sax- ons, was not the minifler of the King, but the officer of the Galbenman or 6onl $. And what this alderman or earl was to the county, the lord or thain was, no doubt, to his manor or liberty, and what the fheriff was to the former, the inferior genepa or bailiff was to the latter. Certain it is that not only the feveral courts of which we {hall have occafion to fpeak, but what we now call manors or liberties, exifted from a very M. Paris. 801. The governors of the city of London were originally- called portreves, then bailiffs, then fheriffs, and at laft mayors. Stows Survey, by Strype. B. v. c. 6. * Ingulf bus (apudfcriptores pojl Bedam). 870. Gul. Malmesburienfis de Gejlis Rcgum. Hi. 44. Camdens Britannia, clxvii. Seld.ni AnaleEla, Opera, ii. 9x2. Notes upon Draytons Polvolbion. Song xi. (Works, iv. 1839.) Shires, however, it is certain there were before this time. See Bradys Hill, of Eng. i. 84. 116. and Sir J. Spelmans Life of Alfred, no. ■f The prapofttus -villa, or bailiff of a manor, was alfo called the tun^enepa or Tungreve. Vide Spelman, -voce Grafio. i Hickef. Dif. Epis. 49. early INTRODUCTION. Xlli early period, nor was it poflible for the Norman Kings to enlarge, in favour of their own countrymen, the amazing powers which almoft every petty Saxon thain or lord exercifed in his jurifdicYton, either from the nature of the conftitution and ordinary courfe of law, or the liberal grants of the Saxon monarchs : powers which the Norman jurifts never found themlelves able to exprefs in a different language *. The fherifF was originally elected by the freeholders or fuitors of the great Court Baron of the county, commonly called the County Court ; the bailiff by the freeholders of the hundred or manor, fuitors to the Court Baron of each divifionf : and when the right of election in the former cafe was wrefted from the people by the Norman tyrants;};, the fame right in the latter cafe was ufurped by the lord of the hundred or manor. The fheriff prefided as judge in the folk- mote or leet of the county, the bailiff in that of the hundred or manor. The former fat as principal exe- cutive officer of the County Court •, the bailiff, of the Court Baron ; the freeholders or fuitors being the judges in each to this day : and though both feem to have been * Infangtheof, cutfangtheof, thol, theam, foe, fac, blodwite, fythe- wite, flyhtewite, (ledwite, ferdwite, hengewit , leirwite, childwite, wardwite, grithbiech, hanr.focn, forftall, ordel, orefte, flemenefrith, miskennyng, burgbruch, &c. &c. f Kennet, Par. Ant. G!of. v. fraftfitut. Another title common to flieriff, bailiff, and reve. % This privilege was reftored to the people by the Arthulifuper Chartas; i8 E. i. c. 8. but refumed in the following reign, and has ever fince continued in the crown. 9 E z. f. a. Jcnk. 229. They enjoy the right of eleding the coroner ftill; chiefly, it is fuppoled, btcaufe it has not been thought worth taking from them. anciently XIV INTRODUCTION. anciently confidered as the Kings courts, yet offences were in one alledged to be contra pacem ballivi, and in the other contra pacem vicecomitis *. The fines and amer- ciaments impofed in thefe courts were levied, and the procefs of the court executed by the fheriff and bailiff in the fame manner ; each having his ferjeants or in- ferior officers to affift him : and in the proceedings of the above courts, or others nearly fimilar, and held by or before the fame perfons, was comprehended the whole fyftem, as well of the civil as of the criminal law of that age, not only before the inftitution of judges itinerant, but (in many cafes at leaft) long after. The revenue of the crown was collected and ac- counted for by the fheriff and bailiff within their re- fpective jurifdidHons : And as each of them governed the tenants in peace, fo he led them forth to war when neceffity required f . Each of them had likewife his * Fleta. I. 2. r. 53. § 1. The feiuard has been in pofTeflion of this branch of the bailiffs office for many centuries. When this transfer took place would be fcarcely poffible to dil'cover. It fhould feem, however, to have been gradual, and might poffibly have its rife from the Stnefeallus, the 8*ypea/Vt> or major-domo being fometimes more converfant in forenfic matters than the bailiff, whole office chiefly concerned the management of the lords demefne and other out-of-door concerns. The Mirror (written in the time of E. 2.) conftantly fpeaks of the bailiff as judge of the court leet ; fee alio Ken. Par. Ant. p. 319. And thus Finch, fpeak- ing of the County Court and Court Baron, fays " the fuitors are the judges 3nd the bailiff and fheriff are but minifters." Laiv. 248. And hence, perhaps, it has been held that both offices might be enjoyed by one and the fame perfon. do. Jac. 178. (cites 29 H. 8.) And it fhould feem from Bracton that writs were indifferently diredlod to either the fteward, or the bailiff, ballroo vel fenefcailo. 1. 5. 1. 32. About the time that this feparation took place, the Ioweft branches of the bailiffs office were transfered to an inferior min.fter, named a rive, of whom we read at large in Fleta. 1. 1. c. 76. But poffibly this was only the cafe in extenfive manors and demefnes, where a fingle perfon was found unequal to the d'.fcharge of the united functions of Jle-ward, bailiff, and revc. •\ Lambards Perambulation of Kent. p. 484. 2 proper INTRODUCTION. XV proper aid or fcot, which he aflbfled upon the land- holders within his bailiwick, who frequently com- plained of it as an intolerable grievance, and as fuch it was at length abolifhed. The Kings writ is thought not to have run as it now does till about the inftitution of the Eyre or Iter of the Juftices by K. H. 2.* How his commands were fignified before this invention does not clearly appear f ; but certainly after it took place, the execution of the writ (though neceffarily directed to the fheriff) was as much the duty of the bailiff within the franchife, as of the fheriff without ; nor could the latter, without a fpecial authority, in- terfere in the moft trivial matter which belonged to the other. In fhort, whatever the fheriff did or could do in the county at large the bailiff could do and did within his franchife, whether hundred % or manor. Such was the ancient conftitution, and fuch in a great meafure will appear from the following meets to be the law at this day. * V. Prynne, Animad. on 4 Inft, p. 150. Hides. Dif. Ef>.\\ 8. 48. See however in Madox, Hif. Ex. p. 100. an inftance of juftices itinerant in the time of K. Stephen. Writs unknown to the Saxons. Hides, u.f. f.%. f A colle&ion of all the writs and charters that can be met with of the firft three or four Norman kings would be a ufeful, curious, and in- tereding work. $ Moft hundreds have, by ftatute or othenvife, been united to the body of the county and power of the fherifF. But many of them, having fcten granted in fee, full exift as independent franchifes. THE THE OFFICE BAILIFF OF A LIBERTY, BOOK I. Of a Franchise or Liberty*. CHAPTER I. OF FRANCHISES IN GENERAL. A FRANCHISE is a royal privilege in the hands of Royal privilege. a fubjeck •, and is forfeited by misufing it. Forfeiture. Finch, 164. IfV franchife be of record in any court of the King Reccri it is fufficient. 27 H. 6. 9. Allowance of franchifes in Quo warranto or in Eyre Q"« warrant fhall conclude the King, for this is the fuit of the King * Note, that thefe words are in this work ufed in two different fenfes, but both equally common: viz. I. for the privilege itfelf, as the franchifo or liberty of Retorr.a Brevium : 2. for the manor or territory in or over which that privilege is exercifed, as the Liberty or Franrhife of the Savoy. There will feldom, if ever, be any confufion or obfcunty on this account B tO 2 FRANCHISES IN GENERAL. [B. L to try franchife ; contra of allowance in the Common Bench or other court. 10 if. 7. 13. Br. Frauncbes \2f Liberties ) 40. General ftatute. Franchife bound by general ftatute, fam within quam without the franchife. 19 H. 6. 1. Frmchife or other fpecial liberty or privilege fhall not be defeated by general ftatute. 19 H. 6. 64.* Prifors. Albeit divers lords of liberties have cuftody of the prifons and fome in fee, yet the prifon itfelf is the Kings pro bcno publico j and therefore it is to be re- paired at the common charge ; for no fubjecl; can have the prifon itfelf. 2 lnjl. 589. None can claim a prifon as a franchife, unlefs they have alfo a jail-delivery of felony, which the dean and chapter of Weftminfter hath not, and therefore ought to fend a calendar of ' prifoners' to Newgate, or return the Habeas Corpus to B. R. with a claim of their fran- chife. 1 SalL 343. <..^^. Magna Cbarta. By Mag. Char. c. 38., are faved to all archbifhops, s^pttf*-*^/ "j?- & c « earls, barons, and all others, all liberties and free cuftoms which they had enjoyed before. In the preamble to many of the old ftatutes it is ftipulated that all the lords fpiritual and temporal, and the other lieges of the King having liberties and fran- chises, fhall have and enjoy all their liberties and fran- * Vide Ce. Lit. 115, and the cafe of the King aeainft Pugh. Douglas 179. 5 chife* Ch. II.] RET0RNA BREVIUM. 3 chifes which they have of the grant of the Kings pro- genitors and of his own grant and confirmation. This is the confbnt preface to the petition rolls to which the King always anfwers " Le Roy le voet" Rot. Purl, pajftm. And that all pcrfons and corporations may fully enjoy their liberties, [and] franchifes, [was] one prime caufe of calling parliaments, and fo de- clared, and the confervation of them one chief petition of the commons when violated. Abridgement of the Records *'. Table, voce Liberties. CHAPTER II. of THE LIBERTY of Retorna Brevium, OR RETURN OF WRITS. BY W. 2. c. 30. The treafurer of the exchequer r ]1 of I.iber- fhall deliver in a roll all the liberties in all {hires that tl !^ //,. s. have return of writs. And if the fherifF anfwer that he hath made return to the bailiffs of any other liberty than is contained in the faid roll, the fherifF fhall be forthwith punifhed as a disheritor of the King and his crown f , And if peradventure he anfwer that he hath returned • Publiihed by Prynne under the name of Sir Robert Cotton, but faid to have been actually compiled by M'itliam Bowyer, keeper of the records in the Tower in the time of Queen Elizabeth. + In the Kings Bench the lheriffreturned MancC lallivo ' Lileriatis de D. and it was laid that he hath not fuch a franchife, and if it be inrolled in the chancery that A. hath retorna irevium, yet if it be not inrolled in the exchequer, as the flatute of IV. 2. c. 39. and if the fherifF return other liherty he (hall be punifhed as a difinheritor of the Crown by fuch llatute, and the juftices may fend certiorari out of chancery to the treafurer, that he bring the roll of liberties in his hand, and lhew it to the jufticss. II £.4. 4. Br, Jtttornc dt brUfe. 98. b % This 4 RETORNA BREVIUM. [B. T", returned the .-writ to tlie bailiff's of fome liberty that indeed hath return who hath done nothing therein*, the fheriff fhall be commanded that he ihall not omit by reafon of the aforefejd liberty, but that the kings precept fhall be executed ; and that he make known to the bailiffs to whom lie returned the writ that they be at a day contained in the writ to anfwer why they have not made execution of the kings precept. And if This Roll of Liberties is furpofed to be loft ; at Ie?. ft the clerks of the Treafurers Remembrancers office, on inquiry there, could give no account ■of it ; any more than the bag-benrer of the Kings could of the " little booke,' ' mentioned by Powell to be in the Kings Remembrancers office, "intituled, Liber de Ball, pro Angl. of all the bailiwicks throughout England," which he calls " an ancient booke, made Anno nSo." Per Curiam, where the bailiff makes iufufficient return, the fheriff may return quod nullum dedit refponfum, for an infufficient return is as no return; and in praecipe againft two, the bailiff returns the one fummoned and the other not, this is no anfwer, and if the fheriff return this, he Ihall be amerceo, but by Favifour if the bailiff make dubious return and the fheriff return it over he fhall not be amerced, qutcre. 5 U. 7. 27, Br. Retorne de brief e. 89. In Precipe quod reddat, to the grand capias the fheriff returned quod mandavi balll-vo, libertatis, who returns that he hath taken the land into the hands of the King, and fays nothing that he hath fummoned the tenant. Martin, another fum-mons wkh rron omittas fhall be awarded, and the fheriff fhall not be amerced, for the bailiff hath not ferved the writ; for as much as he had in commandment to do two things, and he has done but one ; and fo it is as if he had laid nothing either of one or the other. Babb, a non omittas fhall not be awarded but where the bailiff hath not given any return, but here he hath given a return which is not fuffi- cient, and for this he (hall be amerced. T. 4 H. 6. [25.] Fitz. Amerce ment. I. In trefp.ifs the fheriff returned the Capias quod ntandaiit Ballivo Libera tat';:, quijic refpondit quod cepit corpus ; but the bailiff does not bring in the body ; but the defendant would have anfwered by attorney, and was not received. And the plaintiff prayed Stent alias to the fheriff, and /ton omittas. And for that the writ was ferved he could have nothing but a writ to the fheriff to diftrain the bailiff to fend the body, 8c& S7 £. 3. 7. * This nihil is to be underftood, not only where nothing at all is done^ but aHo where the bailiff of the liberty maketh an infufficient return, for that is nihil in law, and tiisrefore a non Gmitas, &c. 2 Injl. 452. they Ch. II.] RET0RNA DRF.VIDM. £ / they come at the day and acquit thcmfelves that return of the writ was not made to them, the fheriff (hall be forthwith condemned to the lord of the fame liberty, and likewifc the party grieved by the delay in re ft it u- tion of damages. And if the bailiffs come not at the day, or come and do not acquit themfelves in manner aforefaid, in every judicial writ, fo long as the plea endureth, the fheriff fhall be commanded that he omit not becaufe of the liberty, &c. That the ftatute, in this refpect, was little more than a declaration of the common law, appears from Braclon. 1. 5. c. 32. By 12 E. 2. c. 5. Of returns which fhall be made Indenture, to fheriffs by bailiffs of fuch franchifes as have full re- turn of the Kings writs, an indenture fhall be made between the bailiff of the franchife by his proper name, and the fheriff by his proper name. And if any fheriff change the return fo delivered to him by indenture, and thereof be convicted at the fuit of the lord of the franchife, of whom he fhall have received fuch return, if thejord fhall have fuftained any damage, or his fran- chife be imblemifhed, and at the fuit of the party who fhall have fuftained damage by that occafion, he fhall he punifhed on behaJf of the King for his falfe return, and render to the lord and to the party double da- mages. Return of writs may "be claimed t>y prescription as Preoption, appertaining to a manor. But more efpecially may it be claimed as appertaining to an honour. Hardres, .423- B 3 Where Etcheat, 6 RETORKA BREVIUM. [B. I. Where a man hath Retorna Brevium, which liberty comes to the hands of the king by efcheat vel aliter> this unity in the King fhall not extinguifh the liberty. Kcihvey. 72.* A rimeerous iibsrty ! This liberty of Retorna Brevium (faith C. B. Hale) is a dangerous liberty for him that hath it ; for he is to be refponfible for all the defaults of his bailiffs, as efcapes, &c. And if the bailiff do not account for the collection of the Kings revenue he is refponfible for it ; 'tis a feather in his cap, but a thorn in his foot. 2. Vent. 406. Sheriff. This liberty though it carries an exemption, yet it doth not exclude, but that the fheriff may execute * (1.) The King may have liberties by the fuppreflion of abbeys (34 H. 8.) or by other means. And a liberty (hall not be intended to be extinct, unlels it be fo (hewn, but fhall be laid to be Hill in ejfe. Cre. Jae. 44a. When the King grants any privileges, liberties, franchises, &c. which were privileges, liberties, or franchifes in his own hands as parcel of the fiowers of his'croK'n, as bona ct ctalla felomim fugitivorum utlagaterum &C. bona et catalla ivtzviatc, exUahur ; deodanda, tureccum maris, &c. within fuch pofTeflions, there if they come again to the King, they are merged in the crown, and he has them again in Jure Corona ; and if the wreck, or gen ds waifed, eftrays, &c. were appendant before to po(Te(Tions> now the appendancy is extinct, and the King is i'eiled of them in Jure Corona. But when a privilege, liberty, franchife or jurifdiclion was at the beginning erected and created by the King, and was not any fuch flower before in the garland of the crown, there, by the r.ccellion of them rgain to the crown they are not extinct nor the appendancy of them fevered from the poiTefiions ; as if a fair, market, hundred, leet, park, warren, (t Jtmilia, are appendants to manors, or in giofs, and afterwards they come back to the King, they remain as they were before, in ejft, not merged in the crown, for they were at fir ft created and newly erecled by the King, and were not in ejfc before, and time and ufage have made them Epuendant. 9 Ref. 25, b. writs Ch. II.] KETORN'A BREVIUM. 7 writs within it. But then it is a wrong for which the lord of the liberty may have his a&ion : but in fome cafes the fhcriff may lawfully do it, as in the cafe of the King. A von omittas^ isc. in cafe of execution * of a writ of wafte, whereto he is particularly empowered by the ftatute, and fome- times where the thing is divided*. (By Hale C. B.) 2 Vent. 406. * Writ iffued to the fhcriff to enquire of wafte, who returned quod mandavi ballivo Mutatis qui mihi nullum dedit refponfunt, and for this he was amerced, and Jtad alias awarded, becaule hy the writ he is judge and hath power to enter the franchife. T.11 H. 4. (8;.) Fitz. Retourne del vi count. 53. But Note, that fometimes the (heriff is judge, as in redifTeifin, wafte, and admeasurement, and the procefs (hull be ferved by the baily as is laid. Diver/it e des Court t. Court Baron. Ejeclitnc Custodia [under IV. z. '" iut - ( chile. L. P. R. 6 3S . Finer, Francbifes> {B.) 6. J In the county of Suffolk are two liberties, one 2V«« tmku*. of St. Edmund Bury, and the other of St. Ethelred of Ely : fuppofe a capias comes at the fuit of A. to the fherifF of Suffolk, to arreft the body of B. the fherifF makes a mandate to the bailiff of the liberty of St. Ethelred, who makes no anfwer ; in that cafe the plaintiff fhall have a writ of non omittas, and by force thereof he may arrefl the defendant within the liberty of Bury, although no default was in him [fcL in the bailiff of that liberty.] 5 Rep. 92. But this is to be underftood of the procefs of the Kings Bench ; for Common Pleas recites the capias, the fheriffs return, that he has made his mandate to the bailiff, who has given no anfwer, and then gives the fherifF power to enter the liberty ; but in the Kings Bench, on the fheriffs return on the Latitat, the authority is general, non omittas propter aliquam libertatem, which gives the fheriff power to enter not only that liberty, but all the liberties within the county : And this feems to be grounded on the words of the latitat, (viz.) latitat and disenrrit, fo that the defend- ant is fuppofed to fkulk and run from one place to another ; and therefore the non omittas was made ge- neral, that he might not run from one liberty to another. Gilb. Hijl. C. P. 24.* A warrant * Rule to (hew caufe why a writ of non omittas capias ad rtfponAind% fl.culd not be quaflied, difcharged. Hie objection to the writ was, that a recited a mandate to have been ifli.ied louh by the Ihuiff to the bailiff >jfttce of peace. IS RETORNA BREVfUM. [B.I. A warrant of a juflice of peace to arreft for felony may be executed in a franchife within the county, for it is the kings fuit, in which a rton omittas is vir- tually included. 2 Hale P. C. 116 .* By 5 G. 2. c. 2. § 3., in particular franchifes and jurifdictions the proper officer there {hall execute fuch procefs [i. e. where caufe of a£Hon in fuperior court is under 10 1. in inferior court under 40 s.] [made perpetual by 21 G. II. c. 3-]f By 13 G. 2. c. 18. § 6., for the better and more len.s epmy fp eec jy execution of procefs within particular fran- chifes or liberties, the fheriff of every fhire, being ho city or town made a fhire, within which there is any franchife or liberty, the lord or proprietor whereof is bailiff of a liberty without naming what liberty, but leaving a blank fo r the fame. The court held the objection to be valid, and that the proper way to take advantage of the defecl is by motion ; but it appearing that bail was put into this writ before a judge, the objection now comes too late. Barnes. 416. * Where the fheriff ferves the procefs once of a thing local or per- manent, as in Precipe of land and fuch like, he cannot after return mandavt ballivo ; but e centra of a thing rranfitory which may remove' 5 H . 7. 27. Br. Ret. de brief e. 89. Thus in Alias Summons in Dower the fheriff can't return maniavi ballivo, for he ought to have made this -return upon the iirll writ, that Co the court might have awarded a non omittas ; but if it relates to matters tranfitory, then the fheriff may return mandavi ballivo en the iffliing of the fecond procefs, as on an alias capias, for the body might be in the liberty on the iffuing of the fecond procefs, though it was in the guildable in the firft ; and therefore the return ot die firft procefs does not conclude him from returning the liberty to the fecond procefs. Gilb. Hifl. C. P. 26. ■J- Urlin moved to flay proceedings, the procefs being ferved within the franchife of Bury St. Edmonds, and not by the proper officer, contrary to the late adl of parliament. Per Cur : The art only preferves and faves the jurifdiciion of particular liberties. The peifon injured muft Isuug liis -iciion, the court canKot ftay proceedings. Sams. 4O4. Of Ch. II.] ItETOItNA BREVIUM. I J of right intitled to the return of writs within fucli franchife or liberty, fliall (if required by any fucli lord or proprietor) within one month next after fuch requeft made to him for that purpofe, nominate and appoint one or more fufficient deputy or deputies, at the proper cofts and charge of fuch lord or proprietor, to be refident at fome convenient town or place in or near fuch franchife or liberty, to be for that purpofe appointed by the lord high chancellor of Great Britain, and the chief juftices of his Majcftys courts of Kings Bench and Common Pleas for the time being, or any one of them, who is and are hereby authorized and im- powered to appoint fuch convenient town or place as to him or them {hall feem meet, and to fettle and direct what cofts and charges fhall be paid therefore by fuch lord or proprietor •, and fuch deputy or deputies fhall refide at fuch town or place fo to be appointed as aforefaid, and mail have authority in the fherifFs name, and is and are refpe&ively authorized and im- powercd to receive and open all fuch writs and pro- cefs (the execution or return whereof doth of right belong to the lord or proprietor of any fuch franchife or liberty) and thereupon in the name, and under the feal of the fheriff, to make and iflue out fuch war- rant or warrants to fuch lord or proprietor, as by law is requifite, for the due execution of fuch writs or procefs ; and every fucli deputy or deputies is and are hereby required, upon tender of any fuch writ or procefs, to receive and open the fame, and to iflue out fuch warrant thereon, without delay, in fuch manner and form as the fheriff' himfelf may or ought to do, without taking any further or other fee than what is now due and accuftomed for fuch warrant i upon pain that every fuch fheriff or deputy refpec- tively> 14 RETORNA BREVIUM. [B. T. tively, v/ho fhall be guilty of any wilful neglect or default in the premifes fhall be liable to be punifhed for the fame, as for a contempt of one of his Majef- tys faid Courts of Chancery, Kings Bench, or Com- mon Pleas (as the cafe fhall require), and fhall like- wife make fatisfa&ion to the party or parties that fhall receive damage thereby* Cm. and non tint. Note. It is now ufual to take out the capias and non omlttas together, without flaying for the fheriffs return*. Glib. Hijl. C. P. 26. Note, If any of your defendants live within a li- berty where the fheriff may not enter, you muft get the fherifF to direct his warrant on your writ to the bailiff of fuch liberty, who may execute it ; but if the bailiff of fuch liberty do not execute it, then you muft at the retun of your writ, get the fheriff to return a mandavl ballivo thereon, and thereupon you make out a writ called a non omlttas, directed to the fheriff, and upon that writ the fheriffs officers may, upon the fheriffs warrant made out thereon, enter and execute the warrant within fuch liberty. 1 InflruElor Ckrlcalls. 44. And Nate, The ufual practice in fuch cafe is if the defendant dwells in the country, to fend down a non omlttas with the latitat for difpatch. lb. * How far fuch a practice is confident with the rights of the lord of ♦he liberty or with the law of the land (and particularly with the aft jutt above recited) is fubmitted to thofe whofe duty it is to fupport both. In Yorkfliire it is ufual for the iheriff to direcl the warrant is well jo the bailiff of the liberty as to one or more of his own bailiffs, who may take defendant if fou-id extra tib:rtat:m. This method is unobjectionable, it prevents deby and anfwers ail the pumofes of a not omittat. ScAC, Ch. II.] RET0RNA BREVIUM. T; Scac. E. 1725. L. Digby v. Meech et al. Bill to eftablifh plaintiffs right to the manor, &c. of ^ Shcrborn Caftleton in the county of Dorfet, to Green- t " . . wax fines, Sec, and alfo poundage fees on executions and Retorna Breviutn, £sY. by virtue of a grant 14 Jac. 1 . The bill was brought againft three fucceeding meriffs of the county, and Templeman, who had been the under fhcrifF for three or four years, and as to him to have an account of what poundage fees, &c» he had received within the liberty : the title fet forth by plaintiff was, that king James I. granted to fir John Digby (after earl of Briftol), from him they de- fcended to George, from him to John earl of Briftol, and en his death vejled in plaintiff". It was objected at the hearing that here was not a Sufficient title fet forth, it not appearing how the pre- mises veiled in plaintiff, whether by defcent, Settle- ment, or how. And per tot' cui the bill ought to be difmiffed fox- that reafon ; the bill being to eftablifh a right, as well as for an account ; and upon this the caufe went off, but plaintiff had liberty to amend his bill. Hanbury, 195.. BOOK C *6 1 BOOK II. Of the Bailiff of a Franchise or Liberty. CHAPTER I. OF HIS QUALITY. ' |"*HE bailiff of a franchife or liberty is he who in ■*■ a free place, or portion of a county, taken away from the power of the fheriff, executes the bufmefs of the fheriff. Spelman. Minifter to the The bailiff of the franchife is not minifter to the fheriff but to the King. 8 2?. 4. 17. Officer ptrfi. The bailiff of a franchife is an officer by himfelf, and hath not to do with the fheriff. 21 H. 7. 23. The bailiff of a liberty is not fervant to the fheriff, - for the fheriff cannot make other return but according to that which the bailiff of the liberty certifies him. Keilivey, 89. King* bailiff". The Kings bailiff of his manor is immediate officer to the King. 33 H. 6. 29. The bailiff .of a liberty is fuch an officer as the court will take notice of. Pafch. 24 Car. B. R. Q. S.P.R. 122. CHAP. [ i7 ] CHAPTER II. OF HIS CREATION OR APPOINTMENT, AND INTEREST IN HIS OFFICE. ONE may be bailiff by a fimple grant [i. e. by PjJjJ^JJJ"* parol] or patent or inheritance. #.33 H. 6. [3] Fitz. Monftrauns defaitz, £sV. 93. A man may be bailiff of the King without patent or Bailiff of th« writing. 7 H. 7. 10. Br. Bailie. 46 & v. 2 tzf 9. A man may be made bailiff to the King by naked matter of fact as well as to a common perfon. Keil- tvey, 1 74, b. If the King make one his bailiff of his manor, to which manor waif, ftray and leet are appendant, by patent, in this cafe the bailiff fhall have the waif, ftray and leet, becaufe he occupies in right of the King, and he mall account to the King ; and therefore this is an advantage of the King, for which reafon the bailiff fhall have all. 8 H. 7. 3. Corporation having return of writs may make bai- Corporation, liff (to execute them) without writing, by parol. Moor, 552. But a man may not make bailiff or fteward for life, Bailiff for life or in fee, without deed. 21 if. 7. 36. c Bailiff 18 QUALIFICATION. [B. II- Dlfchwge by Bailiff of a manor * for life, with fee or other pro- purc fits for the execution of his office, cannot be dif- charged by a purchafer of the manor [contra if no fee or profit). Cro. Ellz. 859. CHAPTER III. OF HIS QUALIFICATION. Sufficient land. BY 4^.3. c. 9., no fheriff, bailiff of hundred* wapentake, or franchife, fliall be henceforth if they have not land fufficient in the places where they are minifters whereof to anfwer the King and his people, in cafe any man will complain againil them. Re- ena&ed by 5 E. 3. c. 4. Oaths. By 27 Ellz. c. 12. § 2., all perfons that fhall be admitted to or take upon them the executing of the office of an underfheriff, before he intermeddle with the ufe or exercife of the faid office, (hall receive and take a corporal oath upon the Holy Evangelifts, be- fore the juftices of affife, or one of them, of the fame circuit wherein that county is whereof he fhall be underfheriff, or before the Gustos Rotulorum, or two juftices of the peace whereof one to be of the quorum of the faid county, for and concerning the fupremacy, in fuch manner and form as that oath is expreffed and declared in one a£t of parliament made and ordained * Whatever is faid of the bailiff of a manor is in general applicable to the Haiiiffof a liberty, every liberty being likewife a manor; though every manor be not a liberty. in Ch. III.] QUALIFICATION. 19 in the firft year of the reign of our Sovereign Lady the Queen's Majefty*, together with which oath he (hall in like fort, before the fame pcrlbn or perfons, receive and take another corporal oath as followeth, (that is to fay) I A. B. fhall not ufe or exercife the office of underHicrifF corruptly during the time that I (hall remain therein, neither (hall or will accept, re* ceive or take, by any colour, means or device what* foever, or confent to the taking any manner of fee or reward of any perfon or perfons for the impanel- ling or returning of any inqucfl, jury or tales, in any court of record for the Queen, or betwixt party and party, above two fhillings or the value thereof, or fuch fees as are allowed and appointed for the fame by the laws and ftatutes of this realm, but will, ac- cording to my power, truly and indifferently, with convenient fpeed, impanel all jurors, and return all fuch writ or writs touching the fame as fhall appertain to be done by my duty or office, during the time that I fhall remain in the faid office. So help me God. By § 4., every bailiff of franchifes, deputy and clerk of every fheriff and underfherifF, and every other perfon and perfons which fhall have authority, or take upon him to impanel or return any inqueft, jury or tales t or to intermeddle with execution of procefs in any court of record, fhall before he or they intermed- dle with any further execution thereof, receive and take the oaths aforefaid corporally before the perfon or perfons appointed by this aft to minifter the fame, * By 1 IV. and M. ftrt. 1. i 8., the oath of fupremacy is taker} •war, and certain other osths fubftituted in lieu thereof. c 2 or 20 POWER. AND CAPACITY. f_B. IE. or before the head, officer of the place {\{ it be a town corporate), changing only the words (the office of the undcriheriff) contained in the oath expreffed in this aflt, to filch words as are convenient for the deputa- tion, office, or place in which the party which taketh the oath is to be exercifed in : and if any the faid perfons limited to take the oath aforefaid, do take upon him to impanel or return any inqueft, jury or tales., or to intermeddle with the execution of procefs not having before taken the oaths aforefaid, every [fuch] perfon fhall lofe and forfeit the fum of forty pounds of current Englifh money, the one moiety to be to the ufe of our Sovereign. Lady the Queen, the Other to him or them that will fue for the fame. CHAPTER IV. OF HIS POWER AND CAPACITY ; I. e. WHAT HE MAY OR MAY NOT DO OR BE. Steward. I A BAILIFF may be fteward of the fame manor ; for they may well ftand both together. (29 H. 8. in Bro.) Cro. Jac. 178. Beputy. Bailiff of a liberty may well have a deputy. Cra. Jac. 242.* Leafeof land. Bail ■ ■ of lord may leafe the land, and good, at will, for. he is accountable, and debt lies for the lord. -.2 S\ 4. 4 Br. Bailie, 32 Leafi, 34. * And fuch deputy it fliould feem ought to be mnde by writin (9 Rep. 51, 6.). Though it is (nil 21 II. 7. 37/ that the fberiff or » Jleward may make deputy vvithou: deed. But Ch. IV.] POWER AND CAPACITY. 21 But if he referve no rent the leafe is void, i Roll. Rent. Rep. 258. Bailiff of a manor may leafe the pifcary for years. k. e »f« ofpifcary. 3 H. 4 12 b. 1 Roll Abr. 330. Bailiff cannot make leafe oi' the manor, nor of Leafe of manor. parcel of the manor, without efpecial command for that purpofe. M. 8 £. 4. 13. JFite. Bay/Iff. 3. Br. Bailie, 41. A bailiff cannot by any ufage make leafe of the land Leafe of of his mafter [for] an eftate of freehold, 19 AJf. 9. 1 Roll. Abr. 339. Bailiff of a manor may pay rents iffuing out of the Payment* manor, and fhall have allowance, but e contra where he pays debts of the lord due by contract: or obliga- tion, for this is out of his power. 4 H. 7.. 14. Br. Bailie. 27. Bailiff may juftify cutting the great trees for repair Cutting tree*, of a houfe, or the covering of ii as it was before, but not with more coftly covering, and the fame- law is of amending pale, hedge, or fuch like, without command of his lord ; but he cannot cover with tile what was before thatch, nor make new houfe, nor make pale where hedge was before, unJcfs by fpecial command- ment of his mafter. 12 H. 7. 25. Br. BaH'.ie, 42. iff vide plenius Trcfpas. 288. A bailiff may give licence to another to walk over I kcnceiow*]*. the ground, for this is a trefpafs to the peffeffion only-, ~e. c 3 a»4 A2 POWER AND CAPACITY. [B. II. and the bailiff hath the difpofition of the profits of the pcffeflion. {dub.) i Roll. Abr. 339. Damage feafant. A bailiff of a manor may himfelf or'command ano- ther to take beafls damage feaf ant on the land, for he hath the care of all tilings within the manor. 1 Roll. Abr. 339. General atts. He may do any thing for his mailers benefit, but not to his prejudice without his afTent. Cro. Jac, 178. And therefore he cannot give feifin of rent, nor exchange the lords land. (41 E. 3. 26 ) Cro, Jac. 178. Diftrefs for amerciament. Bailiff without fpecial warrant from the fleward cannot diftrain for amerciament in a leet. Moore, 607. 574. Popkam faid, that defendant as bailiff of the manor cannot diftrain for amerciament by reafon of his office without an efpecial warrant from the fleward or lord, no more than a fheriff may levy amerciaments of J5. R. without warrant. But Gaivdy, e contra, that he may diftrain for lawful amerciaments by reafon of the office. Cro. Eliz. 698. Bailiff cannot diftrain ex officio for amerciaments. Cro. Eliz. 748. Bailiff cannot diftrain for amerciament by com- mand of the lord of the manor, nor otherwife than by CIl. IV. ] POWFR. A\T> CAPACITY. 2} by virtue of a precept directed to him by the fteward of the court. Cart/?. 7$.* Bailiff of a franchife which hath Retorna Brevium Ant*. cannot arreil a man without warrant to him made by the fheriff upon the writ in his hands.Aa'//-ziv_y, 86 £.f BailhT of a liberty may deliver his prifoncr to the delivery of prrioner. ihcriiT without more circumltauce ; as he may be dif- charged by bis parol from keeping him any longer. Cro. Car. 44 7. J BaLUfF / * It is an old rule of the duchy e*urt that the bailiffs of the liberties i l(C h °//f^^ of the duchy mav dillr.iin for fines nnd amerciaments for the king, and keep the fame fifteen day?, and if the party diftrained refufe to pay his fine or amerciament, then the bailiff may fell the fame, unlefs the party distrained will enter into bond to pay the faid fine or amerciament ( 1 1 ~ — ■ — " *- r-.' •■— — - y / ys / at a day prefixed in the duchy court, or elfc (hew good caufej but in ( / '1/ 4* <* <2 every particular cafe, for there rauft be a warrant in writing, becaufe a command by parol to the! bailiff of a liberty is not fufficiem, I L. Ray. 190. Hammon v. Jermyn. N. B. This affertion of the learned ferjeant, though founded it \i "pofliblc on fome mftantt within his knowledge, can never be underftood as true with reipecr to general practice. » \ Bailiff of a liberty ,ure:led the party, and delivered hirh to the L fheriffs deputy, from whom lie was refcued, and judgement for the plain- j tiff. Burgh v. Applelon, Sheriff of F.Jex, citeJ Cro. Jxc. 342. See the Pleadings Declarations tn f&i Uppsr Bench, cc. See «ifo c. vi (pi. I.) c,. ix- (fo. 5 0.) c 4 Bu* 24 POWER AND CAPACITY. [B II. Procefs. Bailiff of a franchife cannot execute a procefs withim his franchife, but by the precept of the fheriff. 29 E. 3. 42. Coron. 462. 2 Hale P. C. 68.* ■Writ of inquiry. Cafe, judgement by nil dicit, writ of inquiry x of damages to the fheriff of Norfolk, who returns a mandavl ball'ivo, and fets down an inquifition before bailiff and 40I. damages. Upon writ of error, agreed by all the judges that the return was infuffieient, for it was apparently untrue, and againft law, becaufe the warrant was directed to the fheriff himfelf to be exe- cuted in any part of the fhire, and no venue contained in this inquefl of office, as there is in other writs which intitles the bailiffs of liberties. But yet the court would not reverfe the judgement, becaufe there were divers of the like both in the K. B. and C. P. especially in Suffolk and Norfolk in later times. Ho- barU 83. 2Ugiu Bailiff of a liberty may make an inquifition and ex r tent upon an Elegit by warrant from the fheriff, and fhall deliver the moiety, and not the jury. Cro. Car. 3 '9. But in Boothman v. Earl of Surry, T. 27 G. 3. B. R. Defendant being bailiff of the liberty of Hallamlhire, in the county of York took his prifoner to York jail and there delivered him into the cuftody of the fheriff, and upon action of debt brought againft him for an efcape, judgement for the plaintiff. N. B. Neither of the cafes in Crok'e was cited by defendants council. * In the Rcgijler are divers examples of original writs directed to bailiffs of liberties: as for inftmce ; writs of right patent, writs de ivar- rantia d:ei, writs of trefpals, writs of J uperfcdeas, writs de cart's reddendis, writs de aitornato pro cajlode, writs de attomato pr» fecla facienda, writs de flatuto : The duchy court conftantly iflues writs of levari facins to bailiffs J of the duchy liberties ; in all thefe cafes the bailiff is immediate officer ^ T --y- t-^y-^. f -}r" %-*•* -J to the court, and hath nothing to do with the fheriff, contrary to the argument in Skin. 413, and vide F. N. B. pofiim. Bailiff r^ Ch. IV.] TOWER AND CAPACITY. 1$ Bailiff of a - franchifc fundcr 23 H. 6. c. 9.] has Bail-bond, power to take a bail bond, and mutt take it to him- felf, and by the name of his office. Comyns. 380. Bailiff of a franchife may take bond in fherifrs name. 3 Kcv/r, 71. 117. 125. Baily of hundred* may waive his franchife and ar- Waiver of fa reft as ihenfls bailyf. 3 Kcblc, 7 r. cllife - Capias or distrcfs againft two, lherift may ferve as Capias againft to one and bailifF as to the other. 3 1 77. 6. 13. Where procefs iffucs, and the fheriff or bailifF is plaintiff, yet he may ferve the procefs ; and the fheriff is not bound to take conufance if the bailifF be plaintiff or not, for it may be another of the fame name. 36 H. 6. 1. Br. Retome de Brief c. 6$4 • This muft be underftood of a hundred in fee with reiorna bre'j'-um in the hands of a private perfon, of which there are feveral inilances; every other bailiff of hundred being a mere fervant to the fheriff. An4 note, that, where a man is bailiff of fie in a county (i. e. a bailiff itine- rant, who hath the execution only of writs within the county or hundred in fee) the fheriff fhall not write to him as to bailiff of ft ancbife, and for his act iiai omittas fhall net iflue, nor fhall he make mention of him in his return. 17 AJf. p. 65. Br. Rctorne de brief, 60. f The fheriff of a county made a warrant ballivis fu'ts to arreft the body of fuch a man, and the bailiffs of the liberty return a refcous; and ex- ception was taken to it, became the warrant was ballivis fuis, and the return was made by thefe who were not Jiis_ bailiff's; and it was adjudged good, for the liberty might be within his bailiwick, and fo are all the precedents. Marcb. zj. \ But the defendant himfelf fh^ll never take advantage of a liberty, as if the bailiff of a liberty be defendant in an- action!, and procefs of Cap' or Fcri Fiat comes to the Sheriff aeainft him, the fheriff fhall exepute the procefs againft him •, for a liberty it always for tha benefit of a fUanger to the acuon. • 5 R'p- 92. By 2d [B. II. Ey 2 E. 3. e. 3. Lords of francliifes, and their bailiffs in the fame, fhall have power to execute this act \ which prohibits nil men, except the Kings fcr- vants in his prefence, and his mini Iters in executing his precepts, Sec. from comiiT': before trie Kings juftices, or other the Kings mmiftcrs doing their office, with force and arms, or bringing force in affray of the peace, or gong or riding armed by night or by day in fairs, markets, or in the prefcnee of .he juftices or other minifters, or in any part clfev. upon pain to forfeit their armour to the King, and their bodies to prifon to the Kings pleafuve. By 4 H. 4. c. 19., no fteward, bailiff or minifler of lords of franchifes which have return of writ {hall be attorney in any plea within the franchife or baili- wick whereof he is fuch officer or minifter. CHAPTER V. OF HIS D-UTY 1. furety of the peace, and all fuch per- fons which {hall be committed to ward by fpecial com- mandment of anyjuftice, and vagabonds refufing'to ferve according to the form of the ftatute of labour- ers, only except. And that no fheriff, nor any of the officers or minifters aforefaid fhall take or caufe to be taken, or make any obligation for any caufe aforefaid, or by colour of their office, but only to themfelves, of any perfon, nor for any perfon which {hall be in their ward by the courfe of the law, but by the name of their office, and upon condition written, that the faid prifoners fhall appear at the day contained in the faid writ, bill or warrant, and in fuch places as the faid writ, bill or warrant fhall require. And if any of the faid fheriffs, or other officers or minifters aforefaid, take any obligation in other form by colour of their offices, that it fhall be void ; and that he fhall take no more for the making of any fuch obligation but 4d. (penalty, treble damages to the party grieved and 40 1. half to the King and half to the party fuingV) And juftices of affifes, of the bench and of the peace, to enquire, hear and determine, &c. By Ch. V.] DUTY. *9* By n C 2. Jl. 2. e. 2. § 2., no peribn or perfofiS who ihall happen to be arretted by any iherilT, inula - flicriiF, coroner, lie ward, or bailiff of any franchif* or liberty, 5c c. by force or colour of any writ, bill ot procefs iffuing out of his majettys courts of the Kings Bench and Common Pleas, or either of them, in which faid writ, bill or procefs, the certainty and true caufe of adYion is not cxprcfled particularly, and for which the defendant or defendants in fuch writ, bill or procefs named, is and arc bailable by the ftatute in that behalf made in the three and twentieth year of the reign of the late King Henry the Sixth, fhall be forced or compelled to give fecurity, or to enter into bond with Sureties, for the appearances of fuch peribn or perfons fo arretted, at the day and place in the faid writ, bill or procefs fpecifyed or con- tained in any penalty or fum or funis of money exceeding the fum of forty pounds to be conditioned for fuch appearances ; and all fheriffs and other offi- cers and minifters aforefaid, fhall let to bail and de- liver out of prifon, and from their and every of their cuftodies rcfpe£tively, all and every perfon and per- fons whatsoever, by them or any of them arretted upon any fuch writ, bill or procefs wherein the certainty and true caufe of action is not particularly expreffed, upon fecurity in the fum of forty pounds and no more, given for appearance of fuch perfon or perfons fo arretted unto the faid fheriff or officer aforefaid, ac» cording to the faid ftatute in the faid three and twen- tieth year of the reign of the faid late King Henry the Sixth in that behalf made and provided. By 32 G 2. c. 23. § 1., no Sheriff, underfheriff, Treatment of or minilter whatfoever, bailiff, ferjeant at mace, or other officer or minilter Fe ' , Hrre 8 ' 30 DtTTT. [B. IT. whatfoever, (hall convey or carry, or caufe to be con- veyed or carried any perfon or perfons by him or them arretted, or being in his or their cuflody by virtue or colour of any action, writ, procefs or at- tachment to any tavern, alehoufe or other public victualling or drinking houfe, or to the private houfe of any fuch officer or minifter, or of any tenant or relation of his, without the free and voluntary con- fent of the perfon or perfons fo arretted or in custody j nor charge any fuch perfon or perfons with any fum of money for any wine, beer, ale, victuals, tobacco or any other liquor or things whatfoever, fave what he, fhe or they fhall call for, of his, her or their own free ac- cord ; nor fhall caufe or procure him, her or them to call or pay for any fuch liquor or things, except what he, fhe or they fhall particularly and freely afk for ; nor fhall demand, take or receive, or caufe to be demanded, taken or received directly or indirectly, any other or greater fum or fums of money than is or fhall be by law allowed to be taken or demanded for any arreft or taking, or for detaining or waiting till the perfon or perfons fo arretted or in cuftody fhall have given an appearance or bail, as the cafe fhall re- quire, or agreed with the perfon or perfons at whofe fuit or profecution he, fhe or they fhall be taken or arretted,, or until he, fhe or they fhall be fent to the proper gaol belonging to the county, riding, divifion, city, town or place where fuch arreft or taking fhall be; nor fhall exact or take any reward, gratuity or money for keeping the perfon or perfons fo arretted or in cuftody out of the gaol or prifon ; nor fhall carry any fuch perfon to any gaol or prifon within four and twenty hours from the time of fuch arreft, unlefs fuch perfon or perfons fo arretted fhall refufe to be carried Ch. V.] duty. 3: carried to fome f.ife anil convenient dvelling-houfe of his, her or their own nomination or appointmene within a city, borough, corporation or market-town, in cafe fuch perfon or pei Tons (liall be there arretted > or within three miles from the place where fuch arreft fhall be made, if the fame fnall be not the houfe of the perfon arretted, and be within the county, riding, divilion or liberty in which the perfon under arrefl was arretted ; and then and in rr.y fuch cafe, it fhal! be lawful to and for any fuch fherirr* or other officer or mimftcr to convey or carry the perfon or perfons fo arretted and refufmg to be carried to fuch fafe and convenient dwclling-houfe as afore faid, to fuch gaol or prifon as he, fhe or they may be feat to by virtue of the aclion, writ or procefs agaixift him, her ov them. By § 2., no fheriff, underfherifF, bailiff, ferjeant Expend of . _ - . peituiu «refl*4. at mace, or other officer' or perfon, ihall at any time or times hereafter take or receive any other or greater fum or funis for one or more nights lodging, or for * days diet, or other expences of any perfon or perfons under arreft, on any writ, action, attachment, or pro- cefs other than what fhall be allowed as rcafonable in fuch cafes by fome order or orders made by the juftices of the peace at fome general or quarter-feflions which fhall be held for the county, riding, divifion, citv, town or place where fuch arreft or taking fliall be. By § 3., every fheriff, underfheriff, and bailiff of Printed copy of any liberty, Sec. fliall deliver a printed copy of the feveral claufes contained in this act relating to bailiffs, ferjeants and other officers and perfons who ihall be employed under them refpeclively to execute any 12 writ, 33 DUTY. [B. II. writ, procefs or attachment, or who mall arrefl any perfon on any action which Ihall be entered or other- wife within their refpective fheriffwicks or juris- dictions, to every fuch bailiff, ferjeant, officer, and other perfon, and ihall make it part of the condition of every fecurity or bond which mall be given or made to any fuch fheriff or underfheriff, or bailiff of any liberty, by any bailiff, ferjeant at mace, or other officer or perfon who fhall be employed or intrufled to execute any fuch writ or procefs as aforefaid under him, them or any of them, that every fudh bailiff, ferjeant at mace, or officer and other perfon refpectively, fhall and will fhew and deliver a copy pf the faid claufes to every perfon he fhall arrefl by virtue of any procefs, action, writ or attachment, or under any warrant made out thereon, and carry or go with to any public or other houfe where any liquor fhall, be fold, and alfo fhall and will permit every fuch perfon who fhall be fo arretted, or any friend of him or her to read over the fame claufes, before any liquor, meat or victuals fhall be at any fuch public or other houfe called for or brought to any fuch perfon who fhall be fo under arrefl there ; and in cafe any bailiff, ferjeant at mace, or other officer or perfon fhall in any refpect offend in the premifes, every fuch offence befides the breach of the condition of every fuch fe- curity bond, fhall be accounted and deemed a mis- demeanor in the execution of the procefs or action on which any fuch perfon was arretted, and fhall be punifhable as fuch by virtue of this act. Privilege of per- By §4., every fheriff, underfheriff, bailiff of any ^'""lorne^ ^berty, g ao ler and keeper of any prifon or gaol, and ceffaries. other perfon and perfons, to whofe cuftody or keep- ing Ch. V.] dutt. 33 ing any one (hall be arretted, taken, committed or charged in execution, by virtue of any writ, proccfs, or action, or attachment, mail permit and fuflfer every fuch perfon and perfons, during his, her and their refpective continuance under arreit or in cuitody or in execution for any debt, damages, cofts or contempt, at his, her and their free will and pleafure, to fend for or have brought to him, her or them, at feafonable times in the day-time, any beer, ale, victuals or other necefTary food, from what place he, (lie or they mall think fit, or can have the fame j and alfo to have and ufe fuch bedding, linen or other neceflary things, as he, fhe or they fhall have occafion for and think fit, or fhall be fup- plied with during his, her or their continuance under any fuch arreft or commitment, without purloining or detaining the fame, or any part thereof, or inforcing or requiring him, her or them to pay for the having or ufmg thereof, or putting any manner of reftraint or difficulty upon him, her or them, in the ufing thereof, or relating thereto ; and no fuch prifoner or prifoners fhall pay any thing in refpeel thereof to any fuch fhe- rifF, underfherifrj bailiff of any liberty, gaoler, keeper, or other perfon as aforefaid. By 3 H. 7. <:. 3. every fheriff, bailiff of franchife, Certificate of and every other perfon having authority or power of keeping of gaol or of prifoners for felony, fhall cer- tify the names of every fuch prifoner in their keeping, and of every prifoner to them committed, tyfc. at the next general g.;ol-delivery in every county or franchife where any fuch gaol or gaols have been or fhall be, there to be kalendered before the juftices of the deli- d verance 34 BUTT. [B. II. verance of the fame gaol, upon pain to forfeit for every default an hundred fhillings. Felons good*. By i R.. 3.. r. 3. no fheriff,, &c. nor bailiff of franchife fhall take or feize the goods of any perfon arrefted or imprifoned for fufpicion of felony before that the fame perfon be convicted or attainted of fuch. felony according to law,, or elfe the fame goods other- wife lawfully forfeited; upon pain to forfeit double the value of the goods fo taken, to him that is fo hurt, in that behalf.. Return of; ju- rois. By W. 2.. (13 1 E. 1.) c. 38. In one affife no more fhalL be fummoned than four and twenty ; and old men, above three fcore and ten years, being continu- ally fick, or being difeafed at the time of the fum- mons, or nat dwelling, in that county, fhall not be put in juries or petty affiles. Nor fhall any be put in a ffifes or juries though they ought to be taken in their ( own county who have lefs tenement than to the va- lue of twenty (hillings by the year.. And if fuch af- fifes and juries ought to be taken out of the county,, none (hall be put in them who hath lefs tenement than to the value of forty fhillings by the year, thofe except who are witneffes rh charters or other writings Xvhcfe pretence is neceffary,, fo long as they are able to travel. Nor ought this ftatute to be extended to great affifes in which fometimes it behoveth to put knights not renden't in the county by reafon of the fcarcity of knights, fc long as they have tenement in the county. *r Ch. V.] d6tt. 35 By 21 E. i. Jl. I. no fheriff, £sV. ftewards or bailiffs of liberties (hall put in any recognifances of juries, inquefts, aflifes, and attaints, out of their proper counties to be made, any of their bailiwicks,* unlefs he have lands or tenements to the value of a hundred (hillings by the year at leaft. By the Articuli fuper chartas y 28 E. 1. c. 9. no fhcriff nor bailiff fhall put in inquefts nor in juries more people or others, or in other manner than is ordained by ftatute and fhall put in fuch inquefts and juries the moft near, moft fufficient and lead fufpi- cious. By 42 E. 3. c. it. as to the return or anfwer of bailiffs of franchises they fhall make their anfwer to the fheriffs fix days before their feffion upon the pain of 20 1. And in all manner of panels arrayed by fheriffs, or bailiffs within franchife, fhall be put the mofl fufficient and worthy of faith and not fufpe-^ed who have the belt knowledge of the truth and [are] the moft near. By 11 H. 4. c. 9. no indictment fhall be made but by inqueft of the Kings lawful liege people re- turned by the fheriffs or bailiffs of franchifes, without any denomination to the faid fheriffs or bailiffs of fran- chifes before made by any perfon of the names which by him fhould be impanelled, except it be by • De iallivU fuis ; the printed tranflation reads " any of their bai- liffs ;" but this is only one out of numbtxleGs iiifUnces of its groi's and fhameful inaccuracy. D 2 the j6 2>UTT. [B. H- the officers of the faid fherifFs or bailiffs fworn and known to make the fame.* By 2 H. $.Jl. I. c. S. bailiff* of franchifes (hall caufe to be impanelled fufficient perfons [who have lands, &c. to the * value' of iol. a year, to inquire of riots before the kings commiilioners] upon pain to lofe to the King 40I. in cafe fuch fufficient perfons may be found within the fame franchifes. By 2 H* 5. ft. 2. c. 3. no perfon fhall be admitted to pafs in any inqueft upon trial of the death' of a man, nor in any inqueft betwixt party and party in plea real nor in pica perfonal, whereof the debt or the damage declared amounts to 40 marks, if the fame perfon have not knds or tenements of the yearly va- lue of 40s. above the reprifes thereof. By 6 H. 6. r. 2. bailiffs of franchifes mall mak? their returns or anfwer to the fheriffs in fpecial ?.f- fizes [i. e. as to panels between demandant and te- nant] eight days before the feffion, upon pain of 40!'. By 8 H. 6. c. 9. when the juftices or juftice [of the peace] make enquiries [of forcible entries], they fhall make their warrants and precepts to the fheriff of the county, commanding him on the Kings behalf to caufe to come before them fufficient and indifferent perfons dwelling about the lands entered, to en- quire cf fuch entries, of whom every one who fhall * Tbij act extend? to inqueds before coroners. Cre. Car, 134. be .Ch.V.] duty. 27 be impanelled to enquire in this behalf fhall have land or tenement of the annual value of 40s. at leaft above reprifes. And that the fheriff return iifues upon every of them at the day of the firft pre- cept returnable 20s. and at the fecond day 40s. and at the third time 100s. and at every day after double. And if any fheriff or bailiff within a franchife having return of the Kings writ be flack and make not exe- cution duly of the faid precepts to him directed to make fuch enquiries, he fhall forfeit to the King 20I. for every default and moreover (hall make fine and ranfom to the King. By 15 H. 6. c. 5. no fheriff, bailiff of franchife, •or coroner in actions or writs of attaint of plea of land of the yearly value of 40s. or more, or action of detinue of deeds concerning lands or tenements of like value or more, or perfonal, whereof the judgement of the recovery (hall extend to the fum of 40 i. fhall return •or impanel in any inquifition or inqueft, any perfons but fuch as be inhabiting within his bailiwick, which •have eftate of fee fimple, fee tail or freehold in lands and tenements of the yearly value of 20 1. or more, nor fhall return in the Kings court lefs iiTues in the faid a ft ion of •attaint than 40 s. at the firft writ of diftrefs, and 100 s, at the fecond writ of diftrefs, and the double of every other writ of diftrefs agafhft the perfons im- paneled and returned to be fworn in the fame actions (upon pain of iol. to the King and rol. to the plain- tiffs. Remedy if there be not fu fficient men in the franchife who have lands of the yearly value of 20 1.) By 23 H. 6. c. 9. fherifTs, underfherifFs, bailiffs of iranchifes, nor any other bailiff, fhall return upon any D 3 writ 38 DUTY. [B. II. writ or precept to them dire&ed for returning any inquefts or any panels thereupon to be made, any bailiffs, officers, or fervants to any of the officers afore- faid, in any panel by them to be made •, nor fhall take any thing by colour of his office for the making of any return or panel, and for the copy of any panel but 4d. By 27 Ell-z. c . 6. § 1. in all cafes where any jurors ■ to be returned for trial of any iffue joined in any of the Queens courts of Kings Bench, Common Pleas and the Exchequer, or before juftices of asfife ought to have eftate of freehold in lands, &c. of the clear yearly value of 40 s. the jurors (hall every of them have eftate of freehold in lands, fcsV. to the clear yearly value of 4I. at the leaft, (penalty on fheriffj, &c. for returning that cannpt difpend fo much, 20 1.) By § 2. upon every fir ft writ of habeas corpora or dijiringas with a mji prlus delivered of record to the fheriff or other minifter or minifters to whom the making of the return fhall appertain, [fuch fheriff, &c.~] {hall return in iffues upon every perfpn impa- nelled and returned upon any fuch writ at the leaft 1 os. and at the fecond writ 20 s. at the leaft, and at the third writ 30 s. and upon every writ further double the iffues laft afore fpecified, until a full jury be fworn, or the procefs otherwife determined, upon pain of 5 I. By 27 Eliz. c. 7. no bailiff of any liberty, nor any his or their deputy or deputies,- fhall of himfelf re- turn any juror, or deliver to the fheriff, his under- fhcriif, deputy or deputies, the names of any perlons to Ch. V.] au-rv 39 to be returned upon any panel or jury, without the true addition certified under his or their hands to the fhcrirt', of the place of dwelling or abode of every perfon fo to be returned at the time of the faid return, or within one year next before the faid return, or fome other addition "by which the party returned may be known. By 4 y 5 W. 1st M. c. 14. § 15. all jurors (other than ftrangcrs upon trials per medietatem lingaa) who are to be returned for trials of ifiues joined in any of the courts of Kings Bench, Common Pleas, or Ex- chequer, or before juftices of aflize, or nifi pr'ms> oyer and terminer, gaol delivery, or general quarter- feflions of the peace in any county of the realm, fhall have in their own names, or in trull for them within ■the fame county, ten pounds by the year at leaft above reprizes, of freehold or copyhold lands or tenements, ,or of lands and tenements of ancient demefne, or in rents, in feefimple, feetail, or for the life of them- felves or fome other perfon ; and that upon every writ of venire facias the fheriff, coroner, and other minif- ters, unto whom the making of the panel fliall apper- tain, fhall not return in any fuch panel any perfon unlefs he then have 10I. by the year at lead as afore- faid, in the fame county where the iflue is to be tried ; upon pain .to forfeit for every perron, &c. the fum of 5I, i By § 16. no fheriff or bailiff of any liberty or fran- ,chife, or any of their mirrifters, fhall return any fuch perfon or perfons as aforeiaid, to have been fum- moned by them, unlefs fuch perfon and perfons fliall have been duly fummoned, by the fnace of Hx days d 4 at 4© DUTY. [B- II. at leaft before the day on which they ought to make their appearance ; nor {hall direclly or indirectly take money or other reward to excufe the appearance, of any juror, by any of them to be fummoned or returned, upon pain to forfeit for every fuch offence the fum of iol. [Continued by 7 & 8 W. 3. r. 32. 9 G. 1. c. 8. § 2. EXP.] By 7 y 8 TV. 3. c. 32. § 4. all conftables, ty thing- men and headboroughs of towns in each county, or their deputies, {hall yearly at the general quarter-fes- fions of the peace to be holden for each county, riding or divifion, in the week after the feaft of St. Michael the arch-angel, upon the firft day of the faid fefftons, or upon the firft day that the faid feffions {hall be held by adjournment at any other particular divifion or place, return and give a true lift in writing of the names and places of abode of all perfons within the refpective places for which they ferve, qualifyed to ferve upon juries, with their titles and additions, be- tween the age of one and twenty and the age of 70 years, to the juftices of the peace in open court; which faid juftices, or any two of them, at the faid feffions, {hall caufe to be delivered a duplicate of the aforefaid retuned lift, by the clerks of the peace of every county or riding, to the fheriffs or their de- puties, on or before the firft day of January next fol- lowing, and caufe the faid lifts to be fairly entered into a book, by the clerk of the peace, to be by him provided and kept for that purpofe, amongft the re- cords of the faid court of feffions ; and no fheriff {hall impanel or return any perfon or perfons to try any of the iffues joined in any .of the courts [of K. B. C. P. Ch. V.] DUTY. 41 C. P. or E.] or to be or ferve in any jury at the affizes, feflions of Oyer and Terminer, gaol delivery, or feffions of the peace that (hall not be named or mentioned in the faid lift. By § 5. every fummons of any perfon qualifyed to any of the aforefaid fervices fhall be made by the fherifF, his officer or lawful deputy, fix days before at the leaft, (hewing to every perfon fo fummoned the warrant under the fcal of the office wherein they are nominated and appointed to ferve ; and in cafe any juror fo to be fummoned be abfent from the ufual place of his habitation at the time of fuch fummons, notice of fuch fummons (hall be given by leaving a note in writing, under the hand of fuch officer, con- taining the contents thereof, at the dwelling-houfe of fuch juror, with fome perfon there inhabiting the fame*. [Made perpetual by 6 G. 2. c. 37.] By 4 Ann. c. 16. § 6. every Venire facias for the trial of any ifTue in any action or fuit in any of her Majeftys courts of record at Weftminfter fhall be' awarded of the body of the proper county where fuch iflue is triable. But By § 7. nothing in this act contained (hall extend to any writ, declaration or fuit of appeal of felony or murder, or to any indictment or prefentment of treafon, felony or murder or other matter, or to any procefs * By § 9. The inhabitants of Weftminfter are exempted from ferving \n any jury at '.he fisffiplis before the juftices of the peace for the county // pf Middlefex. upon f. 4* DUTY. [8. II. upon any of them or to any writ, bill, action or in- formation upon any penal flatute,* Vmw. By § 8. in any actions brought in any of her Ma- jeflys courts of record at Weflminfter, where it fhall appear to the court that it will be proper and necefTary that the jurors who are to try the iflues in any fuch actions, mould have the view of the mefluages, lands or place in queflion, in order to their better under-, {landing the evidence that will be given upon the trials of fuch ifTues, in every fuch cafe the refpc£live courts in which fuch actions fhall be depending, may .order fpecial writs of Dijlringas or Habeas corpora to affile, by which the fherifF or fuch other officer to 1 whom the faid writs fhall be directed, fhall be com- manded to have fix out of the firfl twelve of the jurors named in fuch writs, or fome greater number of them, at the place in queflion fome convenient time before the trial, who then and there fhall have the matters in queflion fhewn to them by two perfons in the faid writs named to be appointed by the court j and the faid fheriff or other officer who is to execute the faid writs fhall by a fpecial Retorn upon the fame, certify that the view hath been had according to the command of the faid writs.f By 3 G. 2. c. 25. § 2. duplicates of the lifts [made according to 7 is" 8 W. 3. c. 32. 3 S3" 4 Ann. c. 18. * This provifo, with refpecl to a&ions or informations upon penal fta- tutes, is taken away by 24 G. 1. c. 18. § 3. + By 3 tf 4 Aim. c. 18. §^ 3, 4, particular direclions are given relative to the return of jurors within the county of Tori, See alfo I Ann. Jl. 1. c.i2- § 3- ^d 7 &%I T > r .3. ..32. §§7-8. * ?nd Ch. V.] duty. 43 and this a&] when delivered in at the quarter feflions of the peace, and entered in « the' book to be kept by the clerk of the peace for that purpofe, (hall, during the continuance of fuch quartcr-feffions, or within ten days after, be delivered or tranfmitted by the clerk of the peace to the fherifF of each county, or his underfherifF, in order for his returning of juries out of the faid lifts j and fuch fherifF or underfherifF {hall immediately take care that the names of the perfons contained in fuch duplicates fhall be faithfully entered alphabetically, with their additions and places of abode, in fome book or books to be kept by him or them for that pur- pofe. By § 4. no perfons fhall be returned as jurors to ferve on trials at any afTizes or tiift prius, or at the great feflions, or at the feflions for the counties pala- tine, who have ferved within the fpace of one year be- fore in the county of Rutland, or four years in the county of York, or of two years before in any other county, not being a county of a city or town*. By § 5. the fherifF, underfherifF, or other officer to whom the return of juries fhall belong, fhall from time to time enter or regifter in a book to be kept for that purpofe, the names of fuch perfons as fhall be fummoned, and fhall ferve as jurors on trials at any aflizes or nifi prius j or in the faid courts of great * By 4 G. a. c. 7. § 1. this claufe not to eytend to the county of Middlefcx. And by § 2. no perfon (hall be returned to ferve as a juror at any fefllon of niji prius in the laid county, who has been returned at any fuch fefiion, m th« two terras or vacation? immediately preceding. fcfTion^ 4 A DUTY. [B. II. feflions or fe'ffions for the counties palatine, together with their additions and places of abode alphabeti- cally, and alfo the times of their fervices -, and every perfon fo fummoned, and attending or ferving as afore- iaid, {hall (upon application by him made to fuch fherifF, underfherifF or other officer) have a certificate teilifyipg fuch his attendance or ferrice done, which certificate the faid fheriff, &c. is to give without fee or reward ; and the faid book, (hall be tranfmitted by fuch fheriiF, C5\r. to his fucceiTor from time to time. By § 6. no fherifF, underfherifF, bailiff or other officer or perfon whatfoever (hall direftly or indirectly take or receive any money or other reward -to excufe way perfon from ferving or being fummoned to ferve on juries ; and no bailiff or other officer appointed by any fherifF or underfherifF to fummon juries, fhall fummon any perfon to ferve thereon other than fuch whofe name is fpecifyed in a mandate figned by fuch (herifF. or underfherifF, and directed to fuch bailiff" or ether officer. By § 8. every fherifF or other officer to whom the return of the Venire facias juratores, or other procef* for the trial of caufes before juftices of affize or ?iift prius in any county in England fhall belong, fhall, upon liis return of every fuch writ of Venire facias (unlefs in caufes to be tried at bar, or in cafe where afpecial jury fhall be flruck by order or rule of court) annex a panel to the faid writ, containing the chriftian {[names] and furnames, additions and places of abode of a competent number of jurors named in fuch lifts as qualified to ferve on juries, the names of the fame perfons Ch. V.] duty. 45 perfons to be hrferted ;n die panel annexed to ever/ vc/iin- facias, for the trial of all iflues at the fame affizes in each county ; which number of jurors {hall not be lefs than 48 in any county, nor more than 72, without direction of the judges appointed to go tfa circuit and fit as judges of aihzc or nift prius i:i fuch county, or one of them. By § 18. any pcrfon or perfons having an eilate in pofleifion in land, in their own righ,t, of the yearly- value of 20 1. or upwards, over and above the rcferved Irent payable thereout, fuch lands being held by leafe or leafes for the ab folate term, of 500 years or more-, or for 99 years or any other term determinable on one or more life or lives, the names of fuch perfons {hail be inferted in the refpective lifts as nforeiaid, in order to their being inferted in the freeholders book*. By § 20. the fher'ffs or other officers to whom the returning of juries doth or fnall belong, for any county, city or place, fhall not impanel or return any perfon or perfons to ferve on any jury for the trial of any capital offence, who at the time of fuch return would not be qualifyed in fuch county, city or phce, to ferve as jurors in civil caufes for that purpole. [Made perpetual by 6 G. 2. c. 37. § 1.] By 51 H. 3. Jl. 4. (De Difir'icilone Scaccarii) Diftrcfw When a fheriff or other the Kings bailiff doth take the beafts' of another for the Kings debt, or any ether * By 4 G. 2. c. 7. all leafeholders in the county of Middle/ex, upon leafes where the improved value fli all amount to 50 1, or upward ptr annum, < ver and above all ground rents or other refeivation?, fhall be lia- ble and obliged to ferve upon juries. caufe, 46 DUTY. [B. if. caufe, they to whom the beads belong may feed them without difturbance fo long as they be impounded, without giving any thing for their keeping. And the beafls, nor no other diftrefs taken for the Kings debt, nor for any other caufe be given, ne fold within fifteen days after the taking. And if any bring the tally of a payment made in the exchequer the diftrefs fhall ceafe. And if he bring the tally of any fheriff or bailiff of payment made to him of the thing demanded, and will find pledges to be at the exchequer at the next account, to do what fhall be right, then the diftrefs fhall ceafe. But no man of religion nor other fhall be diftrained by his beafts that gain his land nor by his fheep, for the Kings debt or the debt of another, nor for any other caufe, by the Kings bailiff nor by any other man, but until they can find another dis- trefs or other chattels fufficient whereof they may levy the debt or that is fufficient for the demand, except impounding of beafts when a man finds them doing damage according to the law and ufage of the land. And that the diftreffes be reafonable after the amount of the debt or demand according to reafon and not outrageous. Howbeit all fheriffs and bailiffs who have received the kings debts of the fummons of the exchequer, and have not acquitted the debtors thereof at their next account, fhall be pnnifhed according to the ftatutes lately made. Replevin. By Stat, de Marleberge (52 H. 3.) * c. 21. if the beafts of any man be taken and wrongfully * That this ftatute was made In a parliamentary council at Weji- minjler, fa the ftrty-ihud year of this King, and not at Marleberge, in ^ e Jifty-ficond, " proved by Mr. Prynhe in his Animadverfions on 4 lnji. p. 190. ■ withholden, Ch. V.] T>UTT. ^7 withholden, the fheriff after complaint made to htm thereof, may deliver them without let or gainfaying of him that took the faid beads, if they were taken out of liberties. And if they were taken within liber- ties and the bailiffs of the liberty will not deliver them, then the fheriff for default of thofe bailiffs fhall caufe them to be delivered. By W. i. c. 17. if any take the beads of other* and caufe them to be driven to a caftle or fortrefs*, and there within the clofe of fuch caftle or fortrefs detain them againft gage and pledge, after the beafts ihall be folemnly demanded by the fheriff or by the Kings bailiff, at the fuit of the plaintiff, the {heriflf or bailiff taking with him the power of his county or of his bailiwick f fhall affay to make the replevin of the beafts from him that took them or from his lord* or from others of the men of his lord whatsoever they be, found in the place where the beafts were chafed ; and if any deforce him of the deliverance of the beafts, or that no man be found for the lord, or for him that took them, to anfwer and make the deliverance after the lord or taker fhall be admonifhed thereof by the fheriff or bailiff, if he be in the country or near or there whereas he may be conveniently warned by the taker or any other of his, to make de- liverance, if he were out of the country when the. taking was, and. did not caufe the beafts to be delivered * And fo it is if he that diftrain chafe the diftrefi into any other houfe, park or other place of ftrtngth. 2 Iajl. 193. ■f- Note, every man is bound by the common law to affift not only the iherifFin hij office for the execution of the Kings writs, hut alio his b.iily that hath the fheriffs warrant, ice. and' if they do it not, being required. tbey fhall bo fined and imprisoned. 3 Tnjl. ioj. incontinent. 4B DUTY, [B. II. incontinent, that the King for the trefpafs and defpite fhall caufe the faid caftle or fortrefs to be beaten down without recovery ; and it is to wit, that where the fheriff ought to return the Kings writ to the bailiff of the lord of the caftle or fortrefs or other to whom the return belongeth, if the bailiff of the franchife will not make deliverance after that the fheriff hath made his return unto him, then fhall the fheriff do his office without further delay as is aforefaid and upon the aforefaid pain -, and in like manner, deliverance fhall be made by attachment of plaint made without writ, and upon the fame pain. Hue and cry. By W. i. e.g. all generally are to be ready and appareled at the commandment and fummons of fheriffs, and at the cry of the country to purfue and arreft felons, when need fhall be, as well within franchifes as without. And if default be found in the lord of the franchife, the King fhall take the franchife to himfelf ; and if the default be in the bailiff he fhall be impri- soned one year, and after be grievoufiy fined, and if he hath not whereof to be fined he fhall be imprifoned two years : And if fheriffs, coroners, or other bailiffs, within franchife or without, conceal or confent or pro- cure to conceal the felonies done in their bailiwicks, or that they will not attach or arreft the mifdoers where they can, ISc. and be attainted thereof, they fhall be imprifoned for one year and after be grievoufiy fined, and if they have not whereof to be fined, fhall be imprifoned for three years. By Stat, de Wynion (13 E. 1. Jl. 1.) c. 6. fheriffs and bailiffs within franchifes and without, higher or lower, and that have any bailiwick or foreftry in fee Ch. V.] duty. 49 or otherwife are to take good heed that they follow the cry with the country, and that they have horfea and armour to do it. If bailiffs of liberties have come at the hue levyed according to this ftatute is one of the articles of in- quiry thereupon. 34 E. i.J}. 2. By 12 E. 2. c. 5. fherifFs and other bailiffs who re- Names to re- ceive the Kings writs returnable in his court fhall put their proper names with their returns, fo that the court may know of whom they took fuch returns if need be. By 5 E. 3. c. 14. if any man have fufpicion of Roberdesmen, evil of roberdesmen, waftours and drawlatches, be it by night or day, they fhall be incontinently arrefted by the conftables of the towns. And if they be ar- refted within franchifes, they fhall be delivered to the bailiffs of the franchifes, and kept in prifon till the coming of the juftices afligned to deliver the gaols. And in the mean time the bailiffs of the franchifes fhall inquire of fuch arrefts and at the coming of the juftices return their inqueffcs before them and that which they have found, and the caufes of taking, with the bodies, and the juftices fhall proceed to the de- liverance of thofe arrefted according to the law. And in cafe bailiffs of franchifes have not enquired of fuch arrefts they fhall be amerced. By 22 H. "8. c. 5. § 5. the juftices of peace of Decayed the fhire, city or town corporate, within which any brd £ ei * decayed bridges, or any part thereof, fhall happen to be, fhall have power to enquire, hear and deter- mine all annoyances being within the limits of their e commifXions the juftices. 5® E>UTY. [B. II. commiffions or authorities, and if the annoyance be prefented, then to make procefs into every {hire againft fuch as owen to make or amend any fuch bridges. And all fheriffs and bailiffs of liberties and franchifes (hall truly ferve and execute fuch procefs as (hall come to their hands from the faid juftices of peace afore whom any prefentment mail be had for any fuch annoyance, according to the tenour and effect of the faid procefs to them directed, without favour, affection or corruption, upon pain to make fuch fine as {hall be let upon them, or any of them, by the difcretion of the faid juflices. Attendance on All lords that have franchifes, or their bailiffs, fhall attend upon the juftices of afhfe and gaol delivery, upon pain of forfeiture of their franchifes. 20 E. 4. 6. Br. Forfeiture de terres, tsfc. 115. By 27 H. 8. c. 24. §7. all flewards, bailiffs, and other miniflers of any liberties or franchifes which in times paft have ufed or ought to attend upon the juf- tices of aflife, juflices of gaol delivery, and juflices of the peace at large in any county, fhall be attendant to th* juftices of aflife, juftices of gaol delivery, and juflices of peace of the fame fhires wherein fuch liberties and franchifes be, and make due execution of all procefs to them to be directed, for miniflration of juflice within fuch liberties or franchifes j and all fuch bailiffs or their deputies or deputy fhall give their attendance and afliftance upon the fheriff, together with the fhe- riff's bailiffs at all courts of gaol-delivery from time to SJjie, for execution of prifoners according to juflice. If Ch. V.] DUTT. 51 It was an article of inquiry at the feflions if the inquiry at fsfc bailiffs of liberties and franchifes had duly executed l0US * their office, which confifls in three points viz. In due execution of the precepts to them fent, and in due returns to be made to the fherifF of thofe precepts, and that they took nothing for doing their office, ex- cept the fees to them afligned and due by courfe of law. Fitz. Iujt. P. fol. 28. (Crompton. 49.) And this inquiry was by virtue of 20 E. 3. c 6. whereby it is ordained, that the juftices afligned to take aflifes fhall have commiffions fuflicient to inquire in their feflions of fherifFs, efcheators, bailiffs of fran- chifes, and their under-minifters, &c. and of the gifts, rewards, and other profits, which the faid mi- nifters do take of the people to execute their office, and that which pertaineth to their office, and for making the array of panels, putting in the fame fuf- pe£r. jurors and of evil fame, &c. and to punifh all them which thereof fhall be found guilty according as law and reafon required^ as well at the Kings fuit as at the partys. By fat. de Scac. 51 H. 3. Ji. 5. § 1. all fheriffs, Account - fermors, bailiffs of franchife9, and other who ought to come to the profer in the exchequer the morrow of St. Michael and the morrow of the claufe of Eafler, to pay their farms, rents and iflues which belong to the King, fhall come at the aforefaid terms, and there bring in full the aforefaid farms, rents and iflues, and pay them into the exchequer. And if any fail to pay- fully what he ought to pay as before is faid, his body to remain without departing till he have paid or made agreement. And he who fhall not come at the aforefaid E 2 terms 5* duty. [B. II. terms fliall be amerced according to the ufages of the exchequer. And at the fame terms the fheriffs and bailiffs fhall bring their monies, and fhall pay into the exchequer what they have received at the fummons of the exchequer and the other debts of the King, and of all the things aforefaid, fhall be ready and pre- pared to make account. By § 2. all the bailiffs of franchifes who ought to levy the debts of the King, and fhall be anfwerable to the fheriffs at their commandment according to the eflreats of the fummons of the exchequer, fhall come and anfwer fufRciently. And thofe who fhall not, then- bodies fhall remain in cuftody of the fheriffs •, and the fheriffs, for their defaults, fhall fend to levy the debts by their own bailiffs wherever they can, as they have ufed to do in time paffed. And if the bailiffs do not come to anfwer at the day, the fheriffs fhall let them know, the fheriffs fhall enter into the franchife, and caufe the debts to be levyed by their own bailiff's. By § 7. when a flieriff or bailiff hath begun to ac- count, no other fliall be received to account until the firft that is appointed hath fully accounted, and that the fum be received. By § 9. about the feaft of St. Margaret before the Exchequer be clofed, they fliall every year narrowly fearch and fee if a fheriff or other bailiff who ought to have accounted that year have not. And if he be a fheriff, &c. And if he be another bailiff he fhall be fummon?d or diflrained that he come at' a certain «tay to account, fo that no account be buffered to fleep. By wark. Ch. V.] DUTY. 53 By 42 E. 3. c. o. cftreats fhall not be doubled by Eitmts. the fheriffs, but the copy of the eftreats wherein they touch the franchifes of lords fhall be delivered to the bailiffs of the franchifes under the feal of the fheriff, and the fame bailiffs mail yield their account in the Exchequer by the fame copies and no other. By 8 h W. 3. c. 27. § 15. it mail and may B.r.iifTs of the be lawful for any perfon or perfons, who have or rough' of South - hath any debt or debts, fum or fums of money due or owing to him from any perfon or perfons who fhall be and refide within the White-Friers, Savoy, Salisbury Court, Ram Alley, Mitre Court, Fullers Rents, Baldwins Gardens, Montague Clofe, or the Minories, Mint, Clink, or D.eadmans Place, upon legal procefs taken out againft fuch perfon or perfons, to demand and require the fherifFs of London and Middlefex, head bailiff of the liberty of the. Duchy of Lancastfr, or high fheriff of the county of Surrey, or bailiff of the liberty of the borough of Southwark for the time being (as the cafe fhall require, if the plaintiff think it requifite) or their respective deputy or deputies, officer or officers, to take and they are thereby enabled reflectively to take the pojfe comhatus or fuch other power as to them fhall feem requifite, and enter the faid pretended privileged places, and to arreft, and in cafe of refinance or refufal to open the doors, to break open any door or doors to arreft fuch perfon or perfons upon any mefne or other procefs, extent or execution, or to feize the goods of any fuch perfon or perfons upon any execution or extent. (Penalty on the officer, for neglect or refufal to execute procefs, 100I. and oq thofe who refill him 50I. each, commitment to gaol, P 3 and, Jiic/yy - 54 INDEMNITY AND PROTECTION. [B. II. and, on conviction, imprisonment and pillory, and for refcuing a prifoner 500I. and, on nonpayment within one month after judgement, tranfportation, and on inhabitants concealing any guilty of rescous, tranfportation, unlefs they pay the whole debt and cofts.) Arreft, and non« rjturn of writ. CHAPTER VI. OF HIS INDEMNITY AND PROTECTION. IF the fheriff command the bailiff of the franchife. who arrefts the defendant and fends him to the {he- riff, if the flierjff return no writ, the bailiff {hall not be charged, for the arreft of the bailiff of the fran- chife was lawful, and it {hall be againft reafon that the non-return of the flieriff {hould prejudice him. 8 E. 4. 17. And fee alfo 21 H. 7. 22. Keilwey^ 87. 89. . Mandate. If the {heriff write to a bailiff of franchife in fuch form, Ballivo Hbertatis, &c. falutem, mandatum Domini regis recepi in hac verba, and rehearfe how the King commands by writ to take the body of fuch a one, where no writ comes to the flieriff, this is a good excufe to the bailiff of the franchife, and the party fliall have his remedy againft: the fheriff. Balton. Sheriff. 112.* % * This cafe is printed by Mr.Dalton as an extracl in French, and he refers to 10 H. 6. 37. But there is no fuch folio in that year. Mr. Dal- ten has certainly the appearance of having been a very induftrious man, but the moft grofs inaccuracy is perhaps the leaft of his faults. He is therefore tobe read and quoted (if at all) with great caution. And it might notbeamifs if the fame caution were extended to Mailer Kitchin, who deferves the title of an authority little better than Mr. Dalton. If Ch. VI.] INDEMNITY AND PROTECTION. 55 If upon a fiefi facias againft an adminiftrator, the 01 ^ J»JjJ ' ni flieriff makes a warrant to the bailiff of a franchife to execute it, and afterward the bailiff is removed, and another bailiff elected, and afterward the old bailiff returns in his own name to the flieriff" that the admi- niftrator had not any goods preterquam> Sec. which is falfc, and afterward the flieriff makes the return ac- cordingly to the court, yet no action for this falfe re- turn lies againft the old bailiff, for the return ought to be made in the name of the new bailiff, and fo the flieriff has accepted a return as of a mere ftranger, which is void ; and he ought to take conufancc of the right minifters" of the law, and therefore the old bailiff for this falfe return is not punifhable, but the flieriff. 1 Roll. Abr. 99. Upon writ to the flieriff he firft made warrant to Falfe retwp of bailiff of liberty, and after to his own bailiff, who arrefted the party and fuffered him to efcape ; and then flieriff returned mandavi ballivo ; upon affidavit of fa£t flieriff was ordered to attend. And agreed adtion lay againft flieriff for falfe return as non eft invent.' tsV. and his amerciaments were eftreated. 12 Mod. 311. Action upon the cafe is maintainable againft the flieriff for making the return of a bailiff who was not bailiff at the time of the return, and who had not executed the writ. Moore, 432. Rule for the bailiff of the [liberty of the] duchy of Lancafter to ffeturn the fheriffs mandate on a fi. fa. difcharged, the warrant having been directed to officers of plaintiffs nomination/and not to the officers of the bailiff of the [liberty of the] duchy. Barnes ,416. e 4 Art (,-■■'■■'{' 4 a^-eAt $6 INDEMNITY AND PROTECTION. [B. II. Eicape from An attachment of contempt iflued forth againft de- geoler of liberty. . fendant, for not bringing Waldrons body into court, purfuant to a peremptory rule •, and defendant having been examined upon interrogatories, it was referred to the prothonotary (as ufuai) to examine whether he had cleared himfelf of the contempt, or not. The prothonotary reported the matter fpecially ; and the 9 fa& appeared to the court to be, that "Waldron being confined in the Gatehoufe prifon, Weftminfter, for a C$&t / r9W w criminal matter, was, by leave of a judge, charged there with a bailable action, in the following manner : A capias ad respondendum was directed to the fheriff of Middlefex, who made a mandate to the high bailiff of Weftminfter, and defendant was charged in cuftody therewith, and afterwards efcaped from the keeper of the Gatehoufe, which is the prifon for the liberty of Weftminfter, to which prifon the high bailiff is obliged to carry his prifoners within 24 hours after arreft. The high bailiff being called upon for a return of the ■mandate, returned cepi corpus t and that Waldron re- mained in the cuftody of the keeper of the Gatehoufe, Both the chief bailiff and the keeper of the Gatehoufe are appointed by, and hold their places under, the dean and chapter of Weftminfter, and both give fecu- rity to the dean and chapter \ but the keeper- gives no fecurity to the high bailiff. The Court were of opinion, that the high bailiff had cleared himfelf of the con- tempt, and ordered the attachment to be difcharged. The high bailiff did every thing in his power to fecure the prifoner, and ought not tp be criminally punifhed. Refpondeat fuperior extends to civil matters only. The profecutor may bring his adtion for the efcape. Barnes.) 3.4- If Ch. VI-3 INDEMNITY AND PROTECTION. 57 If prifonev taken by a bailiff of a franchife efcapes ECo-ipe, from the bailiff, the fheriff Avail not have action upon the cafe again ft him, becaufe he is not chargeable cujler, but the bailiff is only chargeable. I Roll. Abr. 98. J. S. was taken in execution by Ca. 8a. by the bai- liffs of a liberty in Suffolk, by warrant of the Aieriff of the county. The bailiffs before the return of the Ca. Sa. brought him to Wcflminfter in the county of Middlefex, and from thence, at the plaintiffs requeft, carried him to Lambeth in Surrey, where he remained under their cuilody till the day of the return of the writ, when they delivered him to the Kings Bench aCr. cording to the writ ; this, by the advice of all the juAices, was adjudged no efcape; for they thought that in whatever county in the way or out of the way to Weftminfter, the fheriff detains or brings the pri- soner, if it be before the return of the writ it is no efcape. Moore., 299. Burton \Boyt 86\ b* Eyres fued a writ out of C. B. verfus Smith, di- rected to the fheriff of York, who fent a warrant to Simpfon, the bailiff of the liberty of Pomfret, who did not return the writ [warrant] : upon which he was amerced 50 1. {viz. time after time) and that was eftreated into the exchequer : afterwards Eyres and Smith agreed, and upon producing a certificate from the attorney for the plaintiff that the debt was fatisfied, thefe amerciaments were discharged upon motion to the barons. Note, There ought to be a conftat of the eftreats, and, as the clerks faid, the court ufes not to discharge the amerciaments, but * allows' you to com- pound them. 1 SalL 54. " * If execution be directed to a fheriff to arreft any man or to make execution within a liberty, arid the fheriff directs his warrant to a [/. the] bailiff of the libei'ty for to make execution of the procefs, ' who' makes it, and after is a fugitive, and not able to anfwer for that, the lord of the fran- chife fhall anfwer for that, and fhall be liable to anfwer for his bailiff by all the juftices. z Bro-wnloiu. 50. Rule Ch.VII.] RESPONSIBILITY AND PUNISHMENT. 63 Rule made for ?.n attachment of contempt ngainll the bailiff of the liberry of Holdernefs, in the county of York, for not returning a mandate made by the fheriff, on an attachment of privilege, purfuant to a peremptory rule to return the fame within fix day* notice, without any return of a mandavi ballivo, ante- cedent to the laid peremptory rule; on an affidavit of fervice of that rule, and an affidavit of fcarching the fheriffs office, after the expiration of the fix days, and that the mandate was not returned ; all the officers prefent reporting this to be the practice. Barnes, 35. Though by agreement between a bailiff of a fran- chiie and hLs deputy, the deputy is reftrained to ferve jjrocefs beyond inch a fum, yet if he ferves procefs of a greater fum without other warrant, and after levies the money, the bailiff Avail be chargeable. Lift. 33. Viner, Aft ions [Cy'e. Disctlt.'] F. c. 5. If the bailiff of a franchife that hatli a gaol, hath Efcape of fe'.oa. the cuftody of a felon, he is chargeable for his efcape, and not the fheriff or his gaoler. 1 Hale P. C. 595. By 27 H. 8. c. 24. § 9. the King, his heirs and fuc- King to.have ceflbrs, fhall have all manner of fines, iflues, amercia- ments and forfeitures that (hall be loft, forfeit or affeffed by. or upon any ftewards, bailiffs or other mi- niiters or officers of any franchifes or liberties, for non- execution, mis-execution or infufficient returns of fuch writs, warrants, precepts or other procefs, which to them or to their deputies fhall be directed, or for any contempt or other mifdemeanor whatfoever it be, concerning their offices, in and for the due ex- ecution or adminiftration of juftice. And the amercia- 1 1 rnents for infufficient xeturns. 64 RESPONSIBILITY AND PUNISHMENT. [B. II. Amerciaments ments for infufficient returns of writs or other procefs made by ftewards or bailiffs of liberties or franchifes, having returns of writs and execution of the fame, fhall be put and fet upon the heads of fuch ftewards or bailiffs, and not upon the fheriffs*. A6ls againftrtie- By § 1 4. every ftatute and act. theretofore made riffs extended to and being in force aerainft fheriffs, their under-fheriffs, bailiffs. . bailiffs or other minifters, for making or returning of panels or juries, or for due execution or ferving of any writs or other procefs, or for taking of fees, or for reformation of extortions, or for any other thing or things concerning their offices, and all pains and penalties contained in every fuch ftatute fhall be ex- tended to all ftewards, bailiffs and other minifters and officers of liberties and franchifes having returns of writs and executions thereof, in like manner, form and condition as they extend to the fheriffs, thefr under-fheriffs, bailiffs or other minifters. (But by § 15. this article not to be prejudicial to any fteward, bailiffs of franchifes or to their deputies or clerks for exercifing and occupying their offices above one year.) Returning per- By 27 Eliz. c. 6. §3. if any fheriff, underfheriff, mSned* *"* bailiff or other minifter do return any perfon or perfons to be fummoned to appear in any jury, wherein he fhall for default of his appearance lofe or forfeit any iffues, where in truth fuch perfon fhall not be lawfully * Before this ftatute, when the return which the bailiff of the fran- chife made to the fheriff was not fufficient, the court has refufed to amerce the bailiff, becaufe he was not minifter to the court. T. 20 £.3. ftiz. Rctoutne ddvicount. 113. fum- Ch. VII.] RESPONSIBILITY AND PUNISHMENT. 6$ fummoned, the fame flieriff, &c. Avail forfeit, lofe and pay unto the laid perfon or perfons lb returned double the value of the iffues by fuch juror or jurors loll Or forfeited for his [or their] default of appear- ance. By § 4. if any flieriff", &C. or any bailiff of fran- Talcing money, chife, fhall receive, take, or have by himfelf or by any turning jurors. other, any fum of money, reward or any other profit, directly or indirectly, or do take any promife, majce any agreement, or affent to have any fum of money, re- ward or other profit, directly or indirectly, of any per- fon or perfons, for the fparing, not warning, or not returning of any perfon to be fworn as juror, for the trial of any iffue joined or to be joined in any of the Queens Majeilys courts [of K. B. C.P. or E.], or before any juftices, every fheriff, &c. or bailiff of fran- chife fo offending, to forfeit for every fuch offence the fum of 5I. (half to the Queen, and half to the per- fon fuing.) By 27 Ellz. c. 12. § 5. if any underfherirF or other Offences apinft perfon mentioned in this a£t, fhall do or commit any , act or acts contrary to the oaths aforefaid, or either of them (See B. II. C. 3.) or contrary to the true intent and meaning of this a£r, every fuch perfon fo offend- ing mail forfeit and lofe for every fuch offence, to thd party or parties grieved, his or their treble damages. By 7 iff 8 IF. 3. c. 32. § 6. if the fheriff, his de- Summoning t»r- puty or deputies, bailiff or bailiffs, fhall fummon and ^fyf?* return any freeholder or copyholder, to « try any iffues c - 3 3 - joined in any of the courts [of K. B. C.P. or E .] or to be or ferve on any jury at the affizes, feflions of oyer and F terminer, 66 RESPONSIBILITY AND PUNISHMENT. [13. I J. terminer, gaol delivery er feflions of the peace', other- wife than as < directed by this acV (See B. II. C. 5.) or in any ways neglect his or their duty or duties in the fervice or fervices of them required by this act, or efxcufe any perfon or perfons for favour or reward, or allow of any writ of non ponendis in ajftzis & juratis, or ether writ, to excufe or exempt any person or per- fons from the fervice of any jury or juries, under the age of 70 years, fuch fheriff, deputy or bailiff fhall for every tranfgrefhon forfeit the fum of 20I. to be recovered by the party or parties grieved or injured,/ or whom cifc will fue for the fame. Summoning per- By t. G. 2. c- 2C. §3. in cafe any fheriff, under- tons contrary to J J , . , 3 G, s .-. jj. § 3. fheriff, bailiff or other oflicer to whom the return of juries fhall belong, fhall fummon and return any perfon or perfons to fervc on anv jury in any caufe to be tryed before the juitices of alhze or nifi prius or judges- of the great frmons ; or the judge or judges of the feflions for the counties palatine, whofe name is not inferted in the duplicates delivered or tranfmitted to him or them by the clerk of the peace, if any fuch duplicate fhall be delivered or tranfmitted, any judge or juftice of aftize or nif: prius or judge or judges of the faid great ieflions, or the judge or judges of the feflions for the laid counties palatine, fhall and may, upon examina- tion in a fummary way, fet fuch fine or fines upon fuch fheriff, &c for every fuch perfon fo fummoned and returned as aforefaid as the faid judge or juftice of aflize, n'tji prius, &c. fhall think meet not exceeding 10I. and not lefs than 40s. Wilful trsni- By § 4. if any fheriff fhall wilfully tranfgrefs [ir* rreifion contrary . r r . . to 3 c z. returning any perfons as jurors to ferve on trials at Ch. VII.]- RESPONSIBILITY AND PUNISHMENT. 67 any affizes or n'ifi prius, or at the great feflions, or at the feflions for the counties palatine who have ferved within the fpace of one year before in the county of Rutland, or four years in the county of York, -or of two years before in any other county, not being a county of a city or town,] any judge or juftice of affize, or ni/i prius t &c may and is required, on exa- mination and proof of fuch offence, in a fummary way, to fet a fine or fines upon every fuch offender as he (hall think meet, not exceeding 5I. for any one offence. By § 6. if any fheriff, Underfheriff, bailiff or other Wilful tramgres- officer fhall wilfully tranfgrefs [in taking or receiving ^TT^* any money or other reward to excufe any perfon from ^ & ferving or being fummoned to ferve on juries; or any bailiff or other officer appointed by any fheriff or under iheriff to fummon juries, in fummoning any perlbn to ferve thereon other than fuch whofe name is fpeci- fyed in a mandate figned by fuch fheriff or under- flieriff, and directed to fuch bailiff or other officer], any judge or juftice of affize, nifi priur, CSV. may and is required, on examination and proof of fuch offence, in a fummary way, to fet a fine or fines upon any perfon or perfons fo offending as he fhall think meet, ' not exceeding 10I. according to the nature of the offence. By 32 G. 2. c. 28. § 12. every fheriff', underfheriff, Offence* ag&xft bailiff of any liberty, bailiff, ierjeant at mace, gaoler 3 * ' and other officer and perlbn as aforefaid, who fhall in anywife offend againft this acl (fee before C. 5.) fhall, tor every fuch offence (over and above fuch penalties and punifl.ments as he or they fhall be liable f 2 unu* 68 FEES. [B. II. unto by the laws now in force) forfeit and p-y to the party thereby aggrieved the fum of 50I. to be reco- vered with treble coffcs of fuit, by a&ion of debt, bill, plaint or information, in any of his Majeftys courts of record at "Weftminfter. By Stat, de Marleberge (52 H. 3. c. 23.) if bailiffs which ought to make account to their lords do with- draw themfelves and have no lands nor tenements whereby they may be diftrained, they fhall be attached by their bodies, fo that the fherifF in whofe bailiwick they be found fhall caufe them to come to make their a^c Wreck and ftrav, Account lies of wreck and ftray though the bailiff does not feize it ; for he fhall account of all that he received and might have received. Br.Accompt. pi. 94. (cites 10 H. 7. 6.) So of toll, and of the profits of a common pound. Ibid. CHAPTER VIII. OF HIS FEES. Arreft. BY 23 H. 6. c. 9. fheriffs, underfheriffs, bailiffs of franchises, nor any other bailiff, by occafion or under colour of their office, fhall take any other thin.' df any perfon by them to be arrefted or attached for the omit- ting of any arreft or attachment, for fine, fee, fuit of prifon, mainprife, letting to bail, or fhewing any eafe or favour to any fuch perfon, for their reward or profit, Ch. Vni.] rr.Fs. 69 profit, but fuch as follow, viz. For the fheriff, 2od. ; the bailiff which mafceth the arreft or attachment, 4^. ; and the gaoler, if the prilbner be committed to his \rard, 4d. ; nor for the making of any return or panel, and for the copy of any panel, but 4d. (Penalty treble damages and 40I.) By 29 Eliz. c. 4. it fhall not be lawful to or for Extent or en- any fheriff, underfheriff, bailiff of franchises or liberties, nor for any of their officers, minifters, fervants, bailiffs or deputies, by rcafon or colour of their office or of- fices, tothave, receive or take of any pcrfon or perfons whatfoever directly or indirectly for the ferving and executing of any extent or execution, upon the body, lands, goods or chattels of any perfon or perfons what- foever, more or other confideration or recompence than 1 2d. for every 20s. where the fum exceedeth not iool. and 6d. for every 20s. being over and above the faid fum of iool. that he or they fhall fo levy or extend, and deliver in execution, or take the body in execution for, by virtue and force of any fuch extent or exe- cution, upon pain to lofe and forfeit to the party grieved his treble damages, and to forfeit the fum of 40I. (half to the Queen and half to the informer or plaintiff.) The bailie of the franchife on 29 Eliz. cap. 4. takes all execution fees. 3 Keble. 71. By 3 G. 1. c. 15. § 16. it fhall not be lawful for Hahmftda, any fheriff, fer>. or for the bailiff of any franchife or $]££?** liberty, by reafon or colour of their office or offices, or by reafon or colour of their executing of any writ or writs i>f habere facias pojfeffwiem aut feifinam, F 3 to 7-0 fees. [B. IT. to demand, afk> or receive any other or greater confi- deration, fee, gratuity or reward, than is hereafter mentioned (which fhall be lawful to be demanded and taken); that is to fay, the fum of I2d. for every 20s. of the yearly value of any manor, meffuage, lands, tenements and hereditaments, whereof poffeffion or feifin fhall be by them or any of them given, where the whole exceedeth not the yearly value of iool. and the fum of 6d. only for every 20s. per annum t over and above the faid yearly value of iool. (Penalty 200I.) Extent and By 8 G. i. c. 25. § 5. no fheriff to take for the liberate, &C. 07; r ■ rr rr r-r extent and liberate & habere facias pojjejjionem or feifmam on the real eftate, by virtue of fuch extent, any more than the above fees. (Same penalty.) Pi-ocefs, under By 5 G. 2. c. 2. § 2. no attorney, bailiff or other perfon, fhall have, take, charge, or demand more than 5s. for the making and ferving a copy of fuch procefs iffuing out of any fuperior court [where caufe of action is under iol.], or more than is. for the making and ferving a copy of fuch procefs, iffuing out of any inferior court [where caufe of aft ion is under 40s.] Engliih notice. By § 3. no fee or reward fhall be taken for the Englifh notice by this adl; required to be written upon every copy of procefs [where caufe of action in fu- perior court is under iol. in inferior court under 40s. ~\ to be ferved upon any defendant.* * This notice is to the effecT following, viz. A. B. You arc ferved ivitb this procefs, to the intent that you may by your attorney appear in bit Majefys court of ■ at the return thereof, being the day L f _ ~. in order to y cur d'fsnct in this aifkn. CHAP, Ch. IX". "J -PLEADING*. 71 CHAPTER IX. PLEADINGS. ONE may be bailiff by a fimple grant (t, e. by Creation, parol) or patent or inheritance, and therefore no need to (hew how. H. 33. //. 6. [3] Fitz. Mwjlrauns de faitz, £sV. 93. and Br. Bailie. 2. Where a man juftifies diftrefs as the Kings bailiff Patent, of his manor, for rent or fervices arrear, and prays aid of the King, he fhall have it without fhewing pa- tent how he is made bailiff, for be claims to the ufe of the King ; but where he claims to his own ufe by the King, there he ought to (hew patent ; and it was held by the ferjeants, that if a man juftify as bailiff of the King by reafon of his manor which he hath by reafon of the duchy of Lancafter, that the defend- Dachj ant fhall not have aid of the King before iffue joined. Aid of the 15 if. 7. 17. Br. Ayde del roy, 51. '" S " Bailiffs of a corporation (in avowry for bcafts taken Corporator. damage f enfant) need not fhew how the corporation was incorporated, nor fay by their precept, nor need pre- cept be in writing for fuch a matter as this. 3 Lev. 107. Bailiff who diftrains ought to fhew in what right DiilreG he diftrains. 7 H. 4. 28. Br. Di/lnfe, 78. amercuvneu: To bailiff juftifying diftrefs for amerciament, it Diftrefs for fufficeth to take conufance of the prelentmcnt and no more and non refert as to him, whether it be true or not. 41 Ed. 3. 27. 24 Ed. 3. 2(5. Cro. Eltz. 748. f 4 Bailiff 72 PLEADINGS. [B. II. BailifF j uftif y ing diftrefs for amerciament, in trefpafs ought to fet out fome eftreat of the court or warrant from the fteward, andjuftify under that, i Salk. 108. Bailiff juftifying diftrefs for amerciament in leet in trefpafs may plead prefentatum fuit without averring the fact, for non refert as to him whether the offence was done or not fince there was a prefentment : a difference between replevin and trefpafs ; in the firft the bailiff is an actor, and is to recover, which fhall be upon the merits ; in trefpafs he is only to excufe the wrong, i Salk. 107. 3 Salk. 52. Exchequer. If a man be amerced in the Kings leet, and upon procefs out of the exchequer the bailiff diftrains him for the amercement, and he brings trefpafs, he ought to bring this aclion of trefpafs in the office of pleas of the exchequer, for the bailiff levyed it as officer of this court. 1 Roll. Abr. 539. .and vide Lane, 55. Averment. If bailiff do any thing which touches his bailiwickj, as payment of rents and fuch like, which are due in right of the manor, it is reasonable that he fhould have the averment, but of a thing which doth not touch his bailiwick it is not reafonable that he fhould have the averment without warrantry, 42 E. 3. 6. Br. Ac- compt. 26. /* Where bailiff of franchife [under 23 H. 6. c. 9.3^ / takes bailbond, to himfelf, by the name of his office, fufficient in pleading to fhew generally that he is fuch ^ a perfon as had authority to take bail. Ccmyns, 380. Debt Ch. IX.] PLEADINGS. 73 Debt upon bond by the plaintiff who was chief bailiff of the liberty of PootefraQ in Yorkshire, but he did not declare as capita? baUivus t but yet by the whole court it was held good; for othcrwife the de- fendant might have craved oyer, and have [had] it en- tered in hoc verba, and then have pleaded the ltatute of 23 H. 6. that it was taken colore officii, but now it mall be intended good upon the demurrer to the declaration. And Ellis t J. faid, that fo it was lately refolved in this court in the cafe of one Con- queft. And judgement was given for the plaintiff 2 Mod. 36. Bailiff of an inferior court the procefs whereof he Inferior court, executes, mud (hew the jiirifdiclion of that court in pleadings. 1 Keble, 53. Cary bailiff of Weftminfter v. Buckhurfl for en- Trial \ tering his liberty and executing a fi. fa. Demurrer that it doth not appear how plaintiff was feized of the office. Judgement for plaintiff, inquiry of damages to V 49I. Affirmed in error. Upon a trial the right mufl have been proved if the defendant had taken iffuc, ) and no inconvenience in this form of declaring. I Sbotv, 17. Comb. 31. S. C. Where a bailiff is charged directly with a tort, it Tort, ought to be fhewn that he is bailiff of a liberty, who has Returua Brevinm. Comyns, 379. Declaration againfl bailiff of Wed minfter, becaufe Declaration v. plaintiff doth not fay of what liberty he is bailiff, and whether he hath execution and return, bad ; becaufe otherwife » 74 PLEADINGS. [B. II. otherwife no colour to charge Kim, and therefore ought to be fpecially {hewn. Cro. Car. 330. Pernor. .Againfl z pernor the plaintiff need not (hew how he claims the privilege of return of writs ; but in a quo Quo warranto, warranto where the defendant mult make a title he ought to {hew it. Hardres, 423. Return of the Bailiff of a liberty in juftification need not {hew the return of the writ. Cro. Car. 447. Will Sheriff:; return. Debt, to the capias the Iheriff returned nan ejl inven- J tus, the plaintiff {hewed that the fheriff made a precept ^ to the bailiff of the franchife to take the body, who 1 took him and delivered him to the {heriff, which he V would aver, &c. Tata curia, you {hall not have this \ averment againfl the return of the fheriff. Nor in any 7 cafe, but too little iffuesby the ftatute. H. 2 H. 4. 14. I JFitz. Averment, 17. In cafe againfl a bailiff for the falfe return of nulla bona upon a fieri Jacias, the queftion was upon the evidence at the trial, whether the bailiff of a liberty {hall be concluded in point of evidence by the return of the {heriff? and per curiam, he is concluded; and if the {heriff makes any other return than that which the bailiff makes to him, he may have his action againfl the {heriff; and it was faid that Holt, chief juflice, was of this opmfcn. See 36 Hen. 6. 40 [1.] L. Raym. 184. Mandate Upon a demurrer, Powel faid that the plea was riaught, becaufe it fets forth a mandate to the bailiff of Ch. IX.] PLEADINGS. 75 of the liberty, and did not fhew that it was under the hand and feal of the fheriff. 2 Vent. 193. But fee 1 Ventrisy 46. that on motion to quafti a return of 4 refcous, becaufe it was mandavi ballivis, who took him virtute warr' prad\ and it was faid, mandavi did not imply that it was in writing, the exception was disallowed by the court.* Where any thing is fhewed to be done within a County. liberty or a franchife, there it is not necefTary to mew within what county that liberty or franchife doth lie. Trin. 23. Car. B. R. For the franchife hath no relation to the county. S. P. R. 404. * And quire whether mandate be ever pleaded to be under the band of the flieriff. . Nota, that mandavi does not mean, and of courfe fhould not he tranf- I lated, / have commanded, but / have fent to. The fheriff cannot cotiU I mand the bailiff of the franchife, having no fort of authority over him, in J a,ny cafe whatever. C 7<5 3 APPENDIX. No. I. CAPIAS BILL. Middle/ex, THE fneriff is commanded that he take A. B. if he may be found in his bailiwick, and him fafely keep, fo that he may have his body before the lord the King, on Wednefday next after fifteen days from the day of Eafter, to anfWer C. D. gentle- man, of a plea of trefpafs ; and alfo to a bill of the faid C. againft the aforefaid A. for one hundred pounds of debt, according to the cuftom of the court of the faid lord the King, before the King himfelf to be ex- hibited, and that he have there then this precept. No. II. WARRANT TO THE BAILIFF OF THE LIBERTY. To the bailiff of the liberty [of the Lord the King] [of his duchy of L.~\ of E. Middle/ex. By virtue of the Kings writ iflued out of his Majeftys Court of Kings Bench at Weft- minfter, to me directed, I command you that you take A. B. if he may be found in your liberty and him fafely kee p, fo that you may have his body before the lord the King, on Wednefday next after fifteen days from the day of Eafter, to anfwer C. D> gentleman of a plea APPENDIX. 77 a plea of t re I pal's ; and a!fo to a bill of the faid C. againft the aforefaid A. for one hundred pounds of debt, according to the cuftom of the court of the faid lord the King, before the King himfelf to be exhibited. Dated the day of 17 — . R. (the attorneys name.) Oath for 59I. and upwards. Before you arreft the defendant, beware he is not an ambaflador or fervant to an ambaflador, or in fome other way priviledged or protected. Precept figned inft. 1.1. 5 H ° * No. III. BXTLIFFS WARRANT TO HIS UNDER-BAILIFFS. J. K. efquire, bailiff of the liberty of [the lord the King] of E. in the county of Middlefex, to L. M. N. 0. and John Dor, my deputies, greeting. By virtue of a precept in writing, under the feal of the fherifF of the faid county, to me directed, I command you and every of you jointly and feverally, that you, fome or one of you take A. B. if he fhall be found in my baili- wick, and him fafely _keep_, fo that I may have his body before the lord the King, on Wednefday next after fifteen days from the day of Eafter, to anfwer C. D. gentleman of a plea of trefpafs ; and alio to a bill of the faid C. againft the aforefaid A. for one hundred 78 APPENDIX. hundred pounds of debt, according, &c. to be ex* hibited. Dated the day of 17 — . R. By the fame bailiff. Before you'arreft, &c. (as above.) Oath for 59I. and upwards. Precept figned — — - — infh No. IV. CHIEF BAILIFFS RETURN. To K G. and H. I. efquires, fheriff of the county of Middlefex. J. H. efquirc, bailiff of the liberty [of the lord the King] of B. in the faid county, doth hereby cer- tify and return, that by virtue of a warrant in writing under the feal of the faid fheriff to him the faid bailiff directed, he hath taken the body of A. B. which he is ready to have before the lord the King, ( £sV. as in the warrant) as by the faid warrant he is commanded. (Or thus: that A. £. whom, (iffc. Zee the indenture poj.) By the fame bailiff. No. V. Form of an indenture of return between the bailiff of a liberty and the fheriff, according to the ftatute of York*. This indenture made, &c. between J. K. efquir?, bailiff of the liberty of the lord the King of E. in the county * The 'compiler' not finding an example of this indenture in any book, has been tempted to frame fomething refen b ing what he conceive* it ,/*>*/< county of M. of the one part, and F. C and //. /. efquires, fheriff of the faid county, of the other part, witneflethy that the faid bailiff hath certified and re- turned unto the laid ihcriff, that by virtue of a certain warrant in writing under the feal of the faid fheriff to him the faid bailiff directed, he the faid bailiff hath taken the body of G'. H. gentleman, which he wiU have ready before the lord the King at Weftminfter, at the day therein contained. Or thus : which he. hath delivered to the faid iheri_ff._Or thus : that G. H. I gentleman, whonTthe faid bailiff was lately, by a cer- tain warrant in writing, under the feal of the faid fhe- riff, to him the faid bailiff directed, commanded by r 44 the faid fheriff to arreft, is not found in his bailiwick. , 7 » . sSJiet-t {And fo of other returns). In witnefs, ferV. No. VI. SHERIFFS RETURN. fry virtue of this writ to me directed, I have com- manded J. K. efquire, bailiff of the liberty [of the lord the King] of E. in the county of Middlefex,, who hath the full return of all writs, and the execu- tion thereof within the liberty aforefaid, and to whom the execution of this writ doth wholly belong to be' done, for that no execution in any other place in my bailiwick out of the faid liberty could be made, which It has been, (t is, however, more for cur iofity, than ufe, a* the bailiff feems completely deprived of the benefit ot' the ftatute by the modern !timp ails. The effect mav neverthelefs be attained by a fimple me- morandum as follows: ee IT RFMLMbERKri, that J. K. efquire. bailiff We. hath certifyed and returned unto F G. and H. I. fheriff, t3"r. that by virtue, trV Witnefs the h«nds of the faid bailiff and fheriff, tbe day ■f — 179a faid So APPENDIX. faid bailiff anfwereth that he hath taken the body of the within named A. B. which he hath ready at the time and place within mentioned. Or thus : that the within named A. B. is not found in his bailiwick. Or thus : who hath given me no anfwer. No. VII. NON OMITTAS. George the third, by the grace of God, of Great Britain, France and Ireland, King, defender of the faith, and fo forth. To the fheriff of Middlefex, greet- ing : We command you that you omit not by reafon of any liberty of your county, but that you take A. B. if he may be found in your bailiwick, and him fafely keep, fo that you may have his body before us on next after five weeks of Eafler, to anfwer* C. D. gentleman, of a plea of trefpafs and alfo to a bill of the faid C. againft the aforefaid A. for one hundred pounds of debt, according to the cuftora of our court, before us to be exhibited, and have you then there this writ. Witnefs, Lloyd Lord Kenyon at Weftminfter, the day of in the 29th, year of our reign. Fiinted by A. Strahan, Law Printer to His Majefty, Printers-Street, London. 7,J>N \ K % v