q LAW BOOKSELLERS O -AHD- 269 MAIN ST. T m v. I, ^.2" UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ffMefri DIGEST OF LAWS RBLATINS TO TH» OFFICES AND DUTIES or SHERIFF, CORONER AND CONSTABLE. BY JOSEPH BACKUS, Counsellor at Law. IN TWO VOLUMES. VOL. I. NEW-YORK : PRINTED FOR THE AUTHOR. DISTRICT OF CONNECTICUT, To rut • IL. ft] BE IT REMEMBERED, that on the thirteenth day of July in tila ^-seventh year of the Ijuiependence of the sta(es /^' "J* *-* *• «id District, hath deposited i« this Office the tiUe ^ ^ k e -^ht „ hereof h.cla.m, as Author, in the words following, to wit . cZl? e ' ge B 0/ f' ^7 I'*"? t0 ^ ^^ "*»*"« Sheriff, Coroner and Constable. By Joseph Backus, Counsellor at La,. In twa Volumes. Vol. /.» In Conformity to the act of the Congress of the United States, entitled, « An Ac for he encouragement of Learning, by securing the Copies of Maps, Charts zsm to Authors a,,d propri " orfi ° f such c ° pies ' duriag the ■£ 22 HENRY W. EDWARDS, Clerk of the District of Connecticut. I true Copy of Record, examined and sealed by me, If. IV. Edwards, Clerk of the x/istricl of c onneclieut. RE CO JIM EJTDATIO JV. (1 E perused with much tatis/action the first Volume of « A Digest of the Laws "■ ■ ' Sheriff tfc. % J. Backus, esq. It is a compila l '° n ' '"' tabor - «" rf * «PP<*rs to me to have been made with and abiU ■ / . . / >rafeision willed it a very useful Book, and that we are V , Backus for having collected^ us a mass of injormation relative to the Subjects on which it treats, whifh is not to be found in any other volume CADWALLADER D. COLDEA. I ; Si W. A. I)..! ., I'not. RECOMMENDJ TIONS. BC»**il®J>4 I HAVE inspected a Treatise by Joseph Backus, esq. en- titled, " A Digest of Laws relating to the Offices and Duties of Sheriff, Coroner and Constable;" and am of opinion that the Plan is good, the Compilation faithful, and that the (look will be useful to Magistrates, to Gentlemen of the profession of the Law, and to Ministerial Officers. It contains much valu- able information on the subjects above mentioned, collected and arranged with Order and Perspicuity. DAVID DAGGETT. January 6th, 1812. I HAVE inspected with much satisfaction a Treatise by Joseph Backus, esq. entitled, " A Digest of Laws relating to the Offices and Duties of Sheriff, Coroner and Constable." The subject appears to me to be treated in a manner very judicious, and has great merit in point of due Arrangement and Perspicuity ; and have no doubt but that it will be found not only useful to Ministerial Officers, but will also be a valuable Acquisition to Gentlemen of the Profession of the Law. TAPPING REEVE. July 8th, 1812. ADVERTISEMENT. THE following Digest is compiled from English elementarj writers' Digests, Abridgments, and Reports, from Reports of Cases adjudged in the Supreme Courts of and United States, and of the States of New-York, Massachusetts, and Vermont: and in the Superior and Supreme Courts of Connecticut:* from hooks of prac- tice, English and American, and from the Statutes of New-York, Massachusetts, Connecticut, New-Hampshire, Vermont, and Rhode-Island. The Statutes of Vermont concerning tin* oilier of High Bailiff, and of Rhode-Island as i<> those of Town Sergeant arc also included. The forms of Returns, Inquisitions, Declarations, Bonds, &c. are some of them framed from the Statutes of each of those States respectively, and others collected from various American and English hooks of Precedents and Forms varied, however, in Buch respects ;is the Compiler deemed expedient. > report! ha\c been published ia the states of New-Hampshire and ftbode- Island. Since the work was in the preui thi Author baa digested a num- i,, i ,i C aaei from tin- Pennsylvania Reporters, and tone from (bote o( more Lei, and inserted them in the Addenda to thi nil volume, ADVERTISEMENT. In a work designed for use in so many different Slates, i-t became necessary, carefully to distinguish between the Laws peculiar to each : this the Compiler has done as far as was practicable, by digesting the Statutes of each respective State, into a single chapter divided into sections, under appropriate heads. In the other parts of the work, for the like purpose, the Compiler has through all the sections, introduced his authorities and cases adjudged, in the following order, viz. first English, then New-York, then Massachusetts, then Connecticut, and last Vermont. He has presumed that the English Common Law, upon the subjects treated of, is recognized in all cases where it is applicable, and has not been superceded by some Constitutional Provision or Legis- lative Act. In the State of New- York it is so declared by their Constitution j in (he State of Vermont the same is done by Statute: the terms and phraseology of the Constitutions and Statutes of the other States, authorizing arid regulating the appointment of Sheriffs, Coroners and Constables, clearly demonstrate that their respective offices, were before the existence of those Constitutions and Statutes, well known, and their duties understood ; in fact they were derived from the Common Law. Repeated adjudications of the Supreme Courts of Massachusetts and Connecticut authorize the same presumption. In digesting of Statutes the Compiler has introduced a narrating, instead of the enacting style, and carefully retained the legal dialect of each particular State. The Compiler's care to preserve the true meaning of his different authorities, and his intention of transcribing the work himself, and in -,o doing to endeavour to give it a greater uniformity of style before sent to the press, induced ADVERTISEMENT. him at first to copy from hi* originals >vhercver convenient: but want of health sufficient for so laborious a task in any proper time, and his inability to superintend the impression, have in some measure prevented the completion of his origi- nal design, and the making those corrections he should other- wise have done. THE AUTHOR. Bridgeport, slh September, 181?. CONTENTS OP THE FIRST VOLUME. Sec. 1. Sheriff, - 2. Coroner, * 3. Constable, - 4. Gaoler, ".:"■"-■". CHAP. II. Of different processes and their incidents. &rc. 7. Direction and service of process, 2. Summons, - - 3. Attachment, - 4. Distringas, - 5. Venire facias, - 6. Issues, - 7. Outlawry, - CHAP. III. Of arrest and its contingencies. 1 30 38 48 59 7r 75 404 ior 10S no meets. For our ,- broke read broke out. For «Aw read Ait. Note (.)fov P. 91. read Co. V. 91. For tenants read terlenants. For spectul read specific. Dele o/. Note (<;) for Hr. read F7n. For irrelileviasb'e read irreplevisable. Read writ of second deliverance, For tufficient read insufficient. For irrepleviable read irreplevisable. For proseyiiandum read proesquendum'. For prosequendum read prosequendum. Note (41 fur /,?//. read Li//- POT acquirement read requirement. I or (OMJ iead r«jf. II' il For corpus read corpora. liVad the c/'ht undivided.! U7/ nail /A«'r. For ri r.,', read recite. 1 17 2 9 19 15 13 26 18 !>5 25 75 18 84 20 94. 105 14 109 3 no 5 15 111 22 112 52 194 346 4 158 166 16 168 16 184 15 190 191 19-2 21 203 3 227 228 o 232 2 235 26 2c7 17 241 14 250 10 551 863 4 878 9 fc™ at manonlm in ngno isto Britannia vocahantur consnla- :iame. ° Ins. el qui modo vocantur vice comites tunc temporis rice consults rocabanluv: illercro dicebutur rice consul qui consule ubsentc ipsius rices supplcbal in jure et info- ro.*', Herein main things are worthy of observation. First, Hie antiquity of counties. Secondly. That which we called ComitatutKt the Romans more latinly called ctnisuhiliim. Thirdly, >Vhoin the Saxons afterwards « ailed shiexe or earl, I he Romans ealledconsul. Fourth l\. That the sheriff was deputy of the consul or carl. Prin< ipal keeptr of the petO* + Peace, lite life of tlie Commonwealth. \ judiciary dignity. in official dignity. I ,i i ha \ lei count is a nohle olii « I : ■ 1 1 uli.it i ino*f rill. <1 noounty, formerly alOOOgtbe liritons, in t!«» i iim s.,i ii,<- Kontnu, In Ibis kinrnJom of Britain, were called consulship!., andtboM wt i art now called v'mcouuts, in tlwse times were called vice nu tiuly calli «| m< .■ . uiimiI, uh", the consul hciu^ ahseut, "'PI I la SHERIFF, CORONER & CONSTABLE. and therefore the Romans called him vice consul, as s ^ R Z f - we at this day call him vice comes. Fifthly, That the sheriff in the Romans' time, and before, was a minister to the king's courts of law and justice, and had then a court of his own, which was the countv court, then called curia consulatus, as appears by these words, ipsius rices supplebat in jure el inforo. Sixthly, That the realm was divided into shires and counties, and those shires into cities, boroughs, and towns, by the Britons ; so that king Alfred's division into shires and counties, was but a renovation, or more exact description of the same. (a) Burn says, that the word comes, or count, came first into Europe out of the eastern countries, probably from the Hebrew cone or cunc, which denotes strength, firmness, or stability. And the word county, in latin eomitatus, seems to be nothing else but a division, or allotment, over which the comes or count had juris- diction. And when the counts or carls left the custody of the counties, then was the custody thereof com- mitted to the viscounts, «r vice comites; so called, because they supply the place of the comes, or earl. The earl was otherwise called by the Saxons, eorl, ealder, ealderman, (elder or alderman,) because they were usually men of age and experience, by a like derivation as that of Senatorcs among the Ro- mans.^) Agreeably thereto, sir Edward Coke further says, that amongst the laws of the same king, (Edward the Confessor,) it appears that those whom they called (and now we call) aldermen or carls, the Romans called Senatores : et similiter, olim apud liri- lones temporibus Romauorum in regno isto Britannia vocabantur Senatores, qui postea temporibus Saxonnm vocabantur JLldermani, non propter atatem sed. propter in) gmtt 1. 168. (A) Burn. jus. IV. 172, 173. SHERIFF, CORONER & CONSTABLE. sheripp. sapientiam et dignitatem,cumquidam adolescentes essent juris periti tamen, et hoc super experiti.*C c J Speed is, however, of opinion, that Alfred first divided the kingdom into several counties, (or shires,) instituted a prefect or lieutenant in every of those counties, which then were called custodes, keepers ; and afterwards, comites, earls, who were to keep the county in obedience to the king, and to suppress the outrages of notorious robbers.(d) The most dignified title and office in the kingdom, from the conquest to the eleventh year of Edward the third, was that of the earl or count. Those in whom that title and office were confirmed, were of the blood royal, and were considered as the companions of the king : hence their name comites, companions, a comitatu, or as some have it, comites nomeii acceperunt a comitando, quia principem comitarentur ad bella publica negotia, ejus lateri, semper }urentes.j(e) It is also said, that kings called them companions, for that both out of their love they will, and from their knowledge can, and by reason of their courage, (the true ground of ancient nobility,) they dare advise boldly and truly upon every occasion. (fj It seems thai carls or counts in process of time, by reason of then" high employments, and attendance on the king's person, not being able to transact the bu- * Senators, and in like manner, formerly, among the Britons, in the times of Mm Romans, in this kingdom of Britain, those were railed Senator*, who after" uirls, in thf time of the Saxons, were called a Ider- rtx-n, not on account of their age, but for their wisdom and dignity ; when although young, they were yet learned in the law, and upon this experienced. f The counts received their name from comitando, (accompanying,) because they accompanied the prince to wars and public negotiations, always adhering to billide. (e) Inst. |. I G8. (rf) Speed. 4. (•J Coke IX, 49, 97. (/) Dalt.SheT. 1. sriF.Rirr. SHERIFF, CORONER & CONSTABLE. siness of the county, were delivered of that hurden ; reserving to themselves the honour, while the labour was laid on the sheriff: so that now the sheriff does all the king's business in the county, and though still called vice comes, is entirely independent of the earl, deriving all his authority immediately from the king, by whose letters patent the custody of the county is committed to the sheriff alone, (g) Sheriffs were formerly chosen by the inhabitants of Their dec- the several counties. In confirmation of which it was ordained by stat. 2S. Edw. I. c. 8. that the people should have election of sheriff in every shire where the shrievalty is not of inheritance. For an- ciently in some counties, the sheriffs were hereditary, and still continue in the county of Westmoreland, to this day. The reason of these popular elections assigned, is, that the commons might choose such as would not be a burthen to them : and herein appears plainly a strong trace of the democratical part of the English constitution : in which form of government it is an indispensable requisite that the people should choose their own magistrates. (ft) But the popular elections growing tumultuous, were put an end to by stat. 9. Edw. II. st. 2. which enacted, that the sheriffs should from thenceforth be assigned by the chancellor, treasurer, and the judges, as being per- sons in whom the same trust might with confidence be reposed. Divers other statutes were past in differ- ent reigns on the same subject; but the custom now is, (and has been at least ever sinec the time of Fortescue, who was chief justice and chancellor of Henry the sixth,) that all the judges, together with the other great officers and privy counsellors, meet in the ex- chequer on the morrow of St. Martin, and then and there the judges propose three persons to be reported (S) Dalt. Sher. 2. IX. Coke, 4-9. (A) Montesq, Sp. L. b. 2. c. 2. 6 SHERIFF, COROXER & CONSTABLE. MtMrp. (if approved of) to the king, who afterwards appoints one of them to he shcriff.(i) nuance Sheriff*, by virtue of several old statutes, are to 1 ■** continue in office no longer than one year ; but it has Occn -aid, that a sheriff may be appointed durante hem placito, or during the king's pleasure; and so is the form of the royal y\v\\.(j) Therefore, till a new sheriff be named, his office cannot be determined, nnless by his own death, or the demise of the king; in which last case, it was usual for the successor to send a new writ to the old sheriff: but now, by the I. Ann, st. 1. c. 8. all officers appointed by the preced- ing king, hold their offices for six months after the king's demise, unless sooner displaced by the suc- cessor. No man who has served the office of sheriff for one year, can be compelled to serve the same again, within three years after. (k) Office ronnot The office of sheriff cannot be apportioned or di- bc divided. vi(1(>( , . aml t j, crc f ore w i iell the king appoints a sheriff durante bene placito, he cannot determine it in part, as for one town, or any other part; neither can he abridge the sheriff of any thing incident or belonging to his office; for the office is entire, and so it must continue for the whole county without any fraction or diminution, except it be by act of parliament, or that the king shnll constitute a new town, &0, a county of ilM-lf. and shall there appoint a sheriff with all things belonging to that olliee, ft it bin the same town, kv. Neither can the office of sheriff be determined, nor in part thereof, without, and until a new sheriff is appointed and qualified to exercise the office for the same county. (f) (,) B1. C0«. I. 333, 340, 3+1. (J) D. ilt. Slier. 8. (<) HI. Com. I. 542, 343. (/) Dult. Slier. 6,7. Coke IV. 33. SHERIFF, CORONER & CONSTABLE. T The sheriff, as his name imports, is the keeper or ^^ governor of the county: his patent is commis»imu8 tibi His charge. custodiam comitates, thcrehy he has the keeping of the king's rights within the county, and also the keeping of the peace. As the keeper of the king's peace both by common law and by special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. He may apprehend and commit to prison all persons who break the peace, or attempt to break it : he may, and is bound ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody; he is also to defend his country against any of the king's enemies when they come into the land ; and also against any rebel- lion, insurrection, or riotous assembly of the people ; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him, which is called the posse comitatus, or, power of the county. And this summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprison- ment.^) To justify the sheriff in arresting a man on the suspicion of felony, there must have been a felony actually committed.(n) "Whenever the sheriff or other officer may take the Way arrest & posse comitatus, or has authority to execute the king's fenders, when process, or to apprehend felons, rioters, or other rcs * sted ",! ^ x * J* , edition of, &r% breakers of the king's peace, if the sheriff or other officer finds resistance, it. seems he raav arrest and imprison all such offenders : and whensoever the (m) Dalt. Sher. 5, 355, 2% "7, Bl. Com. I. 243, Z\\, \n) Dalt. Sher. 28. 8 SHERIFF, CORONER & CONSTABLE, shebiff. sheriff shall take the posse comitatus with him, "^ though Mithout sufficient cause, yet his servant or any other person may justify the same by the sheriff's command: for such their doing was by authority. And whensoever the party against whom any lawful process, writ, or warrant is granted, shall, after he is arrested, or other execution of such warrant be done, make resistance, or shall make an assault upon the officer, the officer may justify the beating of him, and of all others who shall disturb the officer in the execution of such process, writ, or warrant, and may imprison him or thcm.(o) h,s duty as As the king's bailiff, it is the duty of the sheriff to preserve the rights of the king within his bailhvick, for so his county is frequently called in the writs; a word introduced by the princes of the Norman line, in imitation of the French, whose territory was divided into bailiwicks, as that of England into counties. He must seize to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures ; must seize and keep all waifs, wrecks, or estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from flic exchequer. He is bound to execute all process lamiag from the king's courts in criminal matters; he ttVMta and imprisons; he returns the jury; he has flu < ■iistody of t lie delinquent ; and executes the sen- tence of the court though it extend to death itself.(p) a* • pracc Al common law (lie sheriff may commit any one I'm- an affront or breach ol'ihc peace in his presence. (7) Such persons as he nun apprehend on suspicion of to) I>.i!i. Sl.er. 32. (/.) III. t om. I. 344. (i) F.lz. N. U. 81. SHERIFF, CORONER & CONSTABLE. • treason or felony, upon fresh suit, or hue and cry, sheriff. he may commit to gaol. But of his own authority he may not arrest any man upon suspicion of felony, unless a felony he in fact committed, and he suspects the person whom he arrests, (r) By the common law, the sheriff is the same officer Duty asami- « . . . i i ., .li'j. nister of the to the court of king's bench, as the constable is to courts# the justices of the peace, (s) Courts considering the nature of the sheriffs' office, will never give the law a rigid construction against them, where they have acted intentionally right, though by an inadvertence to the letter of the law their conduct was wrong : as where one in execution break the prison and ilee into another county, and the sheriff, on fresh pursuit retake him, if, before action brought, it be no es- cape, (t) If the sheriff, under sheriff, or other officer, fc^^SdhT has the execution of process, is slain in doing his execution of duty, it is murder in him who kills him, though mur je,.. there was no former malice between them ; nor shall the offender take any advantage from any mistake or error in awarding the process, any more than a sheriff who suffers any prisoner to escape shall take such advantage ; (u) but though the sheriff is thus favoured and respected in the law r , yet, for not observing the order of law in executing a condemned malefactor, he shall be guilty of homicide. (r>) But where the sheriff upon a bill of Middlesex, made his precept to the bailiff of Westminster, to ar- rest J. Ferris, kt. where in truth he was not a knight (r) Comp. Sher. 7. (*) Salk. Rep. I. 175, 5S0. (0 Comp. Sher. 9, 10. (u) Cro. Jac. 280. (v) Comp. Sher. 14. 10 SHERIFF, CORONER & CONSTABLE. S nE.iFF. but a baronet, it was held not a good warrant; and the deputy bailiff being killed by sir John's servant, it was not found murder in the servant, who was acquitted on account of the defect of the warrant, (w) To wrve At the commencement of civil causes, the sheriff vr.ts, to m- is tQ gerve t ue wr j t) t0 arr cst, and take bail ; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution, (as) HasuBderhim rp Q p ei .f orm the various duties belonging to his officers? en0r office, the sheriff has under him many inferior officers ; an under sheriff, who is a general deputy; bailiffs, (or special deputies,) and gaoler ; who may neither buy, sell, nor farm their offices, under the penalty of five hundred pounds. The under sheriff usually performs all the duties of the office; a few only excepted, where the personal presence of the high sheriff is neces- sary.(y) The under sheriff possesses all the powers and authority of the high sheriff, (in matters ministerial,) save only that lie cannot make a deputy, because it implies an assignment of his whole power, which he cannot assign over, («) MM m»ke a Everv sheriff, vearh before he returns any writs, deputy of re- » ' » t " cord Hi the makes a deputy of record in every of the king's kmg's court,. courts , ^ j^ t . haiu . 0| . y . of tho king > s bench ; the eonunM pleus ; and in the exchequer, to receive all manner of writs and warrants to be delivered to them. Mu»t make & And c\ci-y sheriff of any shire (being no city nor jir.x-iaiin fuur to\ui made shire) at his eounty day, or within two SSu mouths next alter he shall have received his patent (w) Com p. Sher. 101. (r) Ul. Com. 3-U. (y) Ibid. 3-Vi. (j) Salk. I. S3, 96. SHERIFF, CORONER & CONSTABLE. 11 of his office of sheriffwick, must depute, appoint, sheriff. and proclaim in the shire town within this bailiwick, four deputies at least, dwelling not more than twelve miles distant one from another, (within the county where he is sheriff,) under the penalty of five pounds for every month he shall lack such deputy or deputies. And every of the said deputies so appointed and proclaimed, may in the sheriff's name make re- plevies and deliverance of distresses, in such form and manner as the sheriff may and ought to do. And the sheriff may make his under sheriff, bailiff, and deputies, without any deed or writing, (a) Every under sheriff, deputy, bailiff, and clerk of Under sheriff, every sheriff, must be sworn according to the form m ustbe sworn. by law prescribed, before the justices of assize, or one of them, of the same circuit; or before the keeper of the rolls, or two justices of the peace, quorum unus, of the same county whereof the said under sheriff, deputy, bailiff, or other officer shall be. (6) And the act and deed of the under sheriff or his Sheriff an- deputy, in the name of the sheriff shall charge the actsofhis ° n _ sheriff, and for their act the sheriff shall be amerced, dershe " ff » &c and none other, (c) The under sheriff in ancient times was called seius Under sheriff. challus vice comites, and in the st. of W. 2. ch. 39. is first called under sheriff, (d) These under sheriffs have at this day to them com- Hischar s- mitted by the high sheriff, the whole or most part of exercising and executing of the office of the high sheriff, and may be called the sheriffs' general depu« (a) Dalt. Sher. 456, 457 (b) Ibid. 453. (r) Ibid. 455, (rf) Ibid, m SHERIFF, CORONER k CONSTABLE, shcbiff. tics. And aeeordingly by the book 20. H. 7. the under sheriff is said to be but the high sheriff's deputy or bailiff, and one who uses and occupies the place or office in right of the high sheriff, and does all things in the name of the high sheriff. (?) If it shall come to issue whether he that made the amu be under sheriff or not, this shall be tried bv the county, and not by the examination of the officer: apd (he array impannelled and returned by the under sheriff in the name of the sheriff, shall bind the sheriff, (f) And if t return made bv the under sheriff be denied, that shall be tried by the under sheriff $ and the high sheriff cannot disavow the same, if he confess him to be his under sheriff, (g) If any under sheriff make a return, whereupon an auiercement shall be inffieted, it shall be upon the high sheriff. He shall be amerced, for the return is made expressly in his name. But if it be a ialsc return, whereupon an actios of deeeit lieth, in that ease it nay be brought against the under sheriff, (/i) \n under sheriff took goods on a Ji. fa. and did not sell them l«r half their value: and upon motion, it appeared to the court* that he had persuaded the jury to undervalue the goods, and according to his persua- sion, the jurj appraised them for the sum at which the\ were so appraised. The court held that this Mas | great oppression* and thereupon ordered an mlietment against the sheriff.(l) I (.•) Dtlt si,.-.-. 455, -156. I • it. ill. 456. i I Ibid. I .'■. Co. IX. 31. (M Ibid. 456. Dr. fc. St. 134. (/) Ibid. 5J0. SHERIFF, CORONER & CONSTABLE. 13 The sheriff in appointing his under sheriff, cannot sheriff. restrict his power or authority; for it is essentially under sher- incident to a deputy to have as full power to do MjJJjJfSJ^ act or thing as his principal: and if his principal stricted. make him covenant that he will not do any particular thing which his principal may do, the covenant is void and repugnant. And though the under sheriff must act in the name of the high sheriff, hecause the writs are directed to him, and for other reasons, yet any other deputy may act either in his own name or in the name of his principal. And though a deputy eannot make a deputy, yet he may empower another to do a particular act : (such as to serve a writ, exe- cute a Avarrant, make an arrest, and the like.) (j) The sheriff may also constitute as many otherSheriff may III 3. k f. iX 11 V deputies as he may think fit, each possessing all the num ber of de- powers of the sheriff as a ministerial officer.(fc) AtP uties * common law the sheriff is not more limited as to the numher of his deputies, than he can limit their poAvers Avhile in office. His poAver of appointing deputies results from the nature of his office, so far as it is ministerial : and in that respect only can he depute any to act under him. All officers Avhose poAver and authority are merely ministerial, may at common law act by deputy. (I) Dalton says, although the king hy his letters pa- tent granted to the sheriff custodiam comitatns without any express Avords to make a deputy, yet hath the sheriff poAver to make a deputy or under sheriff, Avho may execute all the ministerial parts of the office. But such deputy hath not, nor ought to have any ♦ state in the office, but is only a shadoAV of the officer, (j) Salk. I. 95, 96. (*) Ibid. (/) Dalt. Sbcr. 3. Salic. I. 95, 96. ii SHERIFF, CORONER & CONSTABLE. shertft. and doth all things in the name of the officer himself, and for whom he must answer. And though the sheriff can neither limit nor abridge the power of his deputy while in office, yet he may revoke such deputa- tion at pleasure; the deputy holding his office by no more permanent tenure than the will of the sheriff. And as the sheriff may make as many deputies as he pleases, and dismiss them whenever he wills to do it, so he may, if he finds himself equal to the task, execute it wholly by himself, (in) Has the cus- The sheriff has also the custody of all the common ^ a f o] < $ om ' gaols in the county,(n) and appoints gaolers to each, who arc his servants, and for whose conduct he is responsible. The business of the gaoler is to keep safe all persons committed to him by lawful warrant; and if (hey suffer any such to escape, the sheriff must answer it to the king, if it be a criminal matter, or in a civil cause, to the party injured, (o) It is meet, says Dalton, for the high sheriff to take good security from his under sheriff and other officers, before he trust them with their offices. And for this, commonly the high sherifftakes bonds from the under sheriff Mid friends, and also of his bailiffs and gaoler. O) A bond from a deputy to save harmless the sheriff from nil escapes of persons arrested by such deputy, i> good; but a bond or covenant to the sheriff from his deputy, that he will not serve executions above to without bis special warrant, is void ; but though such covenant is void in law, vet (he bond may be («i) DaJt Shi i. t, .;I4. Ibid. 5. (,.) III. Com. I. 346, | ) l'.ilt. Shi i. 445. SHERIFF, CORONER Ac CONSTABLE. 15 good for the rest of the covenants which are agreeable ^^j to law. (q) The high sheriff* can appoint no more than one Can appoint » * * no more than under sheriff extraordinary. The case was trespass ne under for taking and carrying away an anchor: judgment *| , ™J| i .* xt,a - by nil (licit, and a writ of enquiry awarded ; executed before two under sheriffs extraordinary, appointed by deputation under the hand and seal of the high sheriff, and a motion to set aside the inquisition, because the sheriff cannot appoint two persons to take an inquest. By the court—— There is no instance of the sheriff's deputing two under sheriffs extraordinary to take an inquest: for if the high sheriff may appoint two, he may appoint twenty or more, if he can exceed one. Let the inquisition be set aside, (r) Where a special bailiff is nominated by the plain- tiff or his agent, the sheriff is not bound to return the writ, (s) And if the sheriff appoint a special bailiff at the Not charge- plaintifPs request, such plaintiff cannot rule the sheriff^ s e pec °iai bai! to return the writ. The acts of the bailiff so ap- liffsa PP° i,)led . pointed are the acts of the plaintiff himself, and the plaintiff. court will not call on the sheriff to return the writ in such cases. (£) But though the sheriff appoint special bailiffs toButisrcspon- arrest the defendant at the plaintiff's request, the d^Jantaf" sheriff is responsible for the defendant after the arrest tei commit- made ; and the defendant is in actual custody in me " prison, though he gave bail on the arrest made by the special bailiff, and was committed in another ( poundage af- to poundage, though the parties compromise before ter a levy, lie sells any of the defendant's goods; and if after compromise? 5 such compromise, either party rule the sheriff to return the writ, the court will discharge that rule, with costs to be paid by the party obtaining it.(a) The sheriff may sue on a bail bond in a different Ma y sue on court from that in which the original action Mas ; for different though the assignee of the sheriff must, by statute court * IV. Ann. c. 16. s. 20. which gives him the right of aetion, sue upon the bail bond in the court where the original action was brought; yet no such restriction is imposed upon the sheriff himself, who does not 9ue by virtue of that statute, but by the common law. (6) No action can be maintained against the sheriff for not assigning a bail bond, if the bond be cancelled on («) Hen. Black. I. 631. (z) Doug. 1. 419. («) Ibid. 4G'2. (I>) Ter. Rep. V. 470. V0I„ 1. * IS SHERIFF, CORONER & CONSTABLE. sheriff, the defendant's returning into custody before the "^^^^ return of the writ.(c) jtfwt make If a writ directed to a sheriff, he delivered to him r return on uritandov him executed while in office, he must make executed by ■ him, thou-h his return on the same: and if his term expires office heibre before the return day of the writ, deliver it over to return day. t i ic new sheriff, who must at the return day, return, the writ with the old sheriff's return thereon.(d) Must com- If upon ji. fa. the sheriff seize goods, and he Soils "m°" ■<■!■ t,iat S***! 8 to such a value, remain in his- menced, the, hands for defect of buyers, and he is removed, yet he, and not the new sheriff, is to proceed in the exe- cution. For execution being an entire thing, he who begins, must end it : and having once seized goods under it, may proceed to make sale of them, and that without any new authority therefor, and the sale will be good : and if he neglect to proceed in executing a writ, the execution of which he had begun before his removal, he will be liable to the plaintiff for such ne- glect, as though he had not been removed.(c) Ne« fteriff After the sheriff has taken the oath for the due fvom ofdTaii execution of his office, and the writ of discharge is prisoners and delivered to his predecessor, the new sheriff must re- d^ntuie.Vc" ceive from the old sheriff all his prisoners, (which arc in gaol, by their names.) and all his writs, pre- cisely by view and by indenture to be made between the old and the new sheriffs: in which indenture all the causes which the old sheriff has against every prisoner must be set forth, and delivered at the peril of the old sheriff; for the new sheriff need not take notice of any who is omitted and left out of the (r) Tcr. Rep. VI I. 199. (,/) l.:.'t. IV. 604. balk. I. 323. Cro. Jack. 73. SHERIFF, CORONER &. CONSTABLE. 10 indenture, for with sueh he is not chargeable, but sheriff. the old sheriff only.(/) If the sheriff at the time of his death has different if shrriff die, ._, . • x i new one must persons in execution, when a new slierin is appointed, take nolice 3l and has taken upon him the office, he must at his his P e " 1 of a!i * # executions, peril, take notice of all the executions against every 8&c. person whom he finds in gaol, and that necessarily, for there is no one to make delivery or give notice. And he is not liable for—detaining them until he can have proper notice of ail such executions. And if in the interim, between the death of a sheriff and the ap- poiutmeTrt of his successor, one who is in execution breaks prison and goes at large, it is no escape; for in such instances the prisoners are in the custody of the law, and they are still in execution, though with- out the limits of the prison, and may be taken at any time after, (g ) A sheriff or other officer in the due execution of the i n execution law need not ilv to the wall though attacked, but may of h . is ° ffi< l e ° ^ need not fly use all necessary force to enable him to perform his to the wall. duty; and if killed in so doing, it is murder, though the process he is executing is apparently erroneous.(/i) And if such officer, being resisted in attempting to make arrest, or retaking one who had escaped, though on civil process, unavoidably kills the party, it is not felony. (i) The sheriff is responsible for his officers, as well in ! s responsible . tor acts of hifi trespass as case; and where a trespass has been com- officers, fcc. mitted by a sheriff's officer, by colour of his office, whether under sheriff, general or special deputy, the party injured may have his action, either against the (/) Dalt. Sher. 15. ( ? ) Cok. III. 72. (h) Co. X. 68. Hawk. P. C. I. 129. (0 Hawk. P. C. I. 107. H. P. C. 494. 20 SHERIFF, CORONER k CONSTABLE. sheriff, sheriff or his deputy: as in the case of taking the goods of a stranger, or arresting one person instead of another; and so he may upon a voluntary escape hy the deputy, and for his embezzling a writ. But when the injury results from a mere nonfeasance or neglect, the action lies agaiust the sheriff only, (j J oni sheriff The old sheriff may execute his office until his his office un-writ of discharge be delivered unto him, or into the til, &.c. clerk's office of the city or county of which he is sheriff. And any official act commenced by him after being so discharged, is voidj yet if he has executed any writ, which remains in his hands not returned when he is discharged, such writ must be returned in his name, but endorsed by the new sheriff: but if there has been no execution of the writ by the old sheriff, the return must be in the name of (lie new sheriff, (k) in New-Yoik In the state of New-York, an execution directed ^, a> & ^ arrest "to the coroner, may issue against the body of the sheriff. He is not privileged from arrest and impris- onment. The statutes containing no provision for the case, it is left as it was at the common law. He cannot be committed to the gaol whereof he is keeper. By so doing, the coroner is liable for an escape. But he may make his own house or any other place in the county, a prison. And whenever the body of the sheriff is arrested by the coroner, he must find sonic other plaee Within the eounty than the common gaol, lo (online his prisoncr.(a) If a sheriff t ummon a jury, and before the return day of the venire, go*l out of office, he is entitled to (j) Snlk. I. 13. 151. Kep. II. 83. Wils. III. 309. Doug. 141. Cro. Blis. 115. (/,) D..1. Slier. 18. {«) Johns. Rep. VI. 22. Leo, III. 399. SHERIFF, CORONER & CONSTABLE. 2,1 the fees i'or summoning the jury, but not for the re- ^^^ turn of the venirc.(l>) If a sheriff who has taken bond with sureties for Record of , re " tlic liberties of tlie gaol granted to a prisoner in ex-ift torrscape, ecution, and is sued for an escape, give notice to the^f)^""™^' sureties, of the suit, and they come in, and the suit " P' i,ion • n» ' i \ • • , •""!(], unless, is regularly defended by the sheritt, with their aid^c. and assistance, and a recovery is had against him in an action on the liond against the sureties, the record of the recovery in the suit against the sheriff is conclusive against the sureties, unless they can show fraud or collusion between the sheriff and the plaintiff in the action against him, and the sureties may not controvert the fact of the escape.(c) It seems that a deputy sheriff who is plaintiff, may Deputy Aer- * " ■ in, as plain- in certain cases serve his own writ. The case was* tiff, may in that the plaintiff was a deputy of the sheriff of the£*f ; iis c ^ county of D. he served the writ himself, but did not writ. require bail. The question was, whether there had been legal service. By the court It appears from some cases (Cro. Car. 416. 19. Viner, 443, note. Moore, 547.) to be a doubtful question, whether a sheriff can legally serve a writ when he is plaintiff. In this case the writ was served by a deputy, no bail was required, and the sheriff returned the writ, and is responsible. As the practice of deputing the plaintiff to serve his own writ, has been of long duration, it would be go- ing too far to say that the plaintiff cannot in any case serve a writ in his own favour. A declaration in ejectment is always served by the party ; and where the writ is served without exacting bail, there can h» (b) Johns. Rep. VI. 125. (c) Ibid. 158. 22 SHERIFF, CORONER & CONSTABLE. sberiff. no oppression, and it is analagous to the service of a declaration in ejectment.(d) Under sheriff An under sheriff may depute a person to'serve a p^ntodoaWrit or do a particular act. The case was, an action pai ticuiaract. for breaking the plaintiffs close. Plea, not guilty. On the trial the defendants in justification of their cntrv. offered in evidence, a writ issued in favour of the defendant P. against the plaintiff, and offered to prove that the defendant P. was deputed in writing hy the under sheriff of the county in the name of the sheriff, to serve the writ; and that P. having arrested the plain- tiff, who escaped, did, with the assistance of the other defendants, enter the plaintiff's house to retake him. The question was, whether the deputation was valid. By the Court The deputation was a sufficient authority to the defendant P. to execute the writ. The general maxim, that delegated power cannot be delegated, is correct when duly applied : for to make a deputy by a deputy, in the sense of the maxim, implies an assignment of the whole power; which a deputy cannot make. A deputy has general powers, which he cannot transfer ; but he may constitute a servant to do a particular act. This distinction was taken and laid down by lord Holt, who gave the opinion of the court of k. b. in the ease of Parker vs. Lett. (Id. Raym. I. 658. Mod. XII. 167. Salk. I. 95.) In that case, the steward of the manor of Ris- wick made his deputy steward, who appointed under his hand and seal, B. a third person to be his deputy, to take a particular surrender, who took it : and one question which arose on eject nienf, was, whether the surrender taken by the deputy of ;i deputy steward was good. The court held it good: and said, that B. (rf) Johns, rep, IV. 486. SHERIFF, CORONER & COXSTABLE. 23 SHERIFF. was not a deputy in the proper sense of the term, since he had power to do only a particular act; whereas a deputy, from the nature of his deputation, has power to do all acts. They alluded to such a case as this, and said, it was every day's practice for under sheriffs to make hailiffs to do particular acts ; and they make them hy virtue of their general depu- tations. The moment the sheriff made an under sheriff, he of necessary consequence gave him power to make bailiffs. The case of Leak vs. Howell, (Cro. Eliz. 533.) and the cases there cited contain the same general doctrine.(e) In the state of Massachusetts, if a defendant is In Massachu. misdescribed as to the place of his abode in the origi- s ^ tts ». not •*- 1 ° able in ties- nal writ, which is legally served upon him, and pass for levy- judgment is rendered thereon upon default, and exe-^J*^'^ 1 * cution issues in pursuance thereof, and is levied uponant was his goods, the oflicer Avho serves such execution is not scr j oec i j n the liable in an action of trespass, on account of such orl = mal wnt * misdescription.. The officer is not holden to look beyond his execution. If with the execution in his possession, he finds within his precincts the goods of the defendant, and takes and sells them as com- manded, he is not a trespasser, (f) Trespass with force and arms, lies against a sheriff Liable in tres- forthe act of his deputy, in taking the eood9 of a 1>ass /? r the r J . ° b act »f his de- stranger by the colour of his office. The law views puty, colore the relation of a sheriff and his deputy in the samc^ c "' light; in official acts they are not distinguishable from each other. The office is of the highest nature from the importance of the trusts confided to it, and the great power with which it is invested. The officer himself is supposed to possess a respectable charaeter,correspond- (e) Johns. Rep. V. 157. (/>M, T. R. 1.76. 2fe SHERIFF. SHERIFF, CORONER & CONSTABLE. ingto the importance of his trust and powers. Public policy dictates that such an officer should T be imme diutebj responsible for all injuries done in the office : and that the injured should not be shifted off and obliged to resort to his officers ; men appointed by him, and who hold their offices during his pleasure, and for -whom he has received such security as was satis- factory to him. The office is one. The office of sheriff: and so much is it considered so, that in the case of Cameron, and others, against Reynolds, Cowp. 403. it was determined, '< that all actions for breach of duty of the office of sheriff, must be brought against the high sheriff, though by default of the under sheriff." That such actions must be brought against the high sheriff as for an act done by him : and if it proceed from ;i default of the under sheriff or bailiff, that is a matter to be settled between them and the high she riff, (a*) Some actions If a sheriff be sued for not assigning a bail bond, SsUory! iffit is 110t necessary that the action should be brought in the county whereof he is sheriff.(/i) Some local. Some actions against the sheriff are local and not transitory; but where the action arises partly from matter of record, and partly from matter in yacis, in different counties, the plaint iff may bring his action in either county at his election. As where a writ issues from the court of common pleas in the county of S. directed to the sheriff, &C 1 . of the county of Mf. to be served within said county of M. and td be re- turned before said court of common pleas, in said eountj of S. and the plaintiff will bring his action against the sheriff of M. for a supposed misfeasance of his deputy, in neglecting to attach the goods of (he (-) M. T. R. 5W. Douj. 40. Term. Rep. II. 148. (//) Ibid. II. 596. SHERIFF, CORONER & CONSTABLE. 25 SHERIFF. defendant in such writ of attachment named, he may firing such action against the sheriff in which of the counlics hepleases.(i) In an action on the case against the sheriff of K.^'°l fo /" ot for not returning an execution, and for not paying eoution and over to the plaintiff monies received by the sheriff, in "°. monSel satisfaction of the execution after the return day,ceived. the material facts were, That the plaintiff recovered a judgment against TV\ H. and that an execution issued on that judgment, May 5th, 1803, returnable in three months ; and was in the same month deliver- ed to the defendant to be served : and that on the 7th of September, in the same year, the return day of the execution being passed, the plaintiff's attorney, J. B. esq. wrote the defendant a letter, in which. was the following direction : " as the execu- tion is run out, and H. I understand is a man of property, I presume the money is ready, and wish. you therefore, on the receipt of this, to send me the balance, being 260 dollars, and 38 cents, as near as you can make it in paper, by mail, and direct the post master at D. to deliver me the letter immediately on receiving it." But no letter from the sheriff to the attorney was ever received by him, or ever came to the post office at D. That on the 21st of December, 1803, the sheriff inclosed in a letter directed to J. B. esq. the plaintiff's attorney at D. 25* dollars, in bank notes, sealed the letter, and caused it the same day to be put in the post office at A. but no letter from the sheriff to J. B. esq. was ever received by him, or ever came to the post office atD. And that the plaintiff not hearing from the sheriff, and the execution not being returned in the same month of December, 1803, sued him for not returning it, and the writ was sent to Mr. W. of A. with a request to procure the service (/) M. T. R. III. ??. VOL. I. 5 . SHERIFF, CORONER & CONSTABLE. siiEi.iFf. of it: That in February following Mr. W ? s clerk wrote J. B. esq. that on enquiry of the sheriff, he said he had received the money, and had sent it to J. B. esq. by the mail: that in March, ISO*, the sheriff returned flic excculion fully satisfied. Question? — Were the bank notes then enclosed to J. B. esq. by the sheriff, at his risk, or Mere they at the risk of the plaintiff? By the court When a sheriff has received money to satisfy an execution, it is his duty to return the execution according to its precept : but by our statutes he is not obliged to bring the money into court, but May retain mav retain it until it be demanded of him by the ere- money col- * . " i .ted on exe- ditor. And it it be demanded of him at any time after ■Muded. 11 * e nas received it, either before or after the return day, and he refuse to pay it to the creditor, the creditor may recover it of him with interest, at the rate of thirty per cent. The creditor is therefore to demand his money, and if he direct the sheriff to send it to him by mail, the money is very properly at the risk of the creditor. On this principle, presuming that the sheriff had levied the money, the plaintiff's attorney wrote his letter to the sheriff, directing it to be remitted by mail. But through the neglect of the sheriff, the moncv had not been levied, and he had made himself liable to the plaintiff for the amount of his execution. The money which the sheriff received after the return d;n, he had no legal authority to receive by. virtue of the execution; he might hold it against the debtor as an indemnity for satisIS Lag the damages the plaintiff had sustained by the sheriff's own breach of duty; as (he debtor, having paid it for the plaintiff".- ii-e, would he discharged by the payment to the plaintiff of these damages. The money, therefore. whiofc the sheriff remitted, van on his own account, to satisfy a demand vhich the plaintiff had against him: and it must be considered as sent at the risk of the sheriff, and not as the money which the plaintiff SHERIFF, CORONER & CONSTABLE. M had authorized him to send by the post. The case J*"J£; ttight have heen different, if the sheriff on the reeeipt of the money, after the return day, had given notice of it to the plaintiff; and he, after notice, had authorized the sheriff to remit it hy mail, as the subsequent authority might have been considered as recognising the conduct of the sheriff in thus receiv- ing the money, as the act of his agenl.(j) The sheriff is answerable civilitcr, for the defaults A nswerabie of his deputies, by nonfeasance, or malfeasance, in ance> rmai- ihe duties of their office enjoined on them by law ; f f asa " ce of " , deputies. but not for a breach of contract made with the plain- tiff, obliging themselves to do what by law they are not bound to do.(fe) And a party injured by a malfeasance of the sheriff And may bt or his deputy, is entitled to relief on the sheriff's bond ^ ° t n o h t ^ e to the treasurer of the commonwealth-, for his faith- state therefor. ful performance of the duties of his office. (T) If a sheriff arrest a debtor in execution, and com- Debtor ' after • • i»»i n > committed, mit him to prison, and such debtor afterwards take taking poor the benefit of the act providing relief for poor pristtk- j£|? M '®!? . ff ers, the sheriff may recover his lawful fees for pound- may recover age and travel (butno more) of the judgment creditor, t'rTvd Berl- in an action of assumpsit. (m) But though it seems ditor - the thirty cents taken by officers, for levying execu- tions in addition to the poundage, is not authorized by the statute, yet when it has been customary to take it, the demand and receipt of it by the officer is not of itself evidence of a corrupt intention. (n) If ffoods are attached upon an original writ, and If s 00I .i ((1 . CO urt, may be brought in ally county where buy county either parlj dwells, whether theoriginaljudgment was i^^dwdU** 1 ^ 6 ? 6 ^ '" , ' |;| ' < ' ,,,, " , . > «>rnot. For (be superior court is the same court within the inclining of the statute, ( ) M. T. R. II. 514 00 ("ranch, III 335, 33(5, 337. S. C. 17, S. (?) Kirby, 48. SHERIFF, CORONER & CONSTABLE. 29 SHERIFF. sitting in any county in the State.(r) And such action may be brought at common law against an officer for not returning an execution, before any court having jurisdiction in other cases between the parties, though such court did not render the judgment on which the execution issued. As where an execution issued on a judgment of the county court of the county of W. and was committed to adeputy of the sheriff of the county of "\V. to levy, collect, and return ; and on his neglect so to do, an action for such neglect was brought against the sheriff of the county of W. before the county court in the county of N. L. and by the superior court, on writ of error, held to be well brought,(s) If an officer by virtue of a writ of attachment, take Goods taken the goods of the defendant, and hold them, until the 011 * ttac J h " , ... ment, and not expiration of sixty days after final judgment is ren- taken on dered on such writ of attachment, and no execution w*S60daya has been taken out on such judgment, and delivered afte > i ud ?- to such officer to levy upon such goods, and no demand Se'd' to' 6 lias been made for such goods by any other officer to ovvnei on de ' whom such execution has been delivered, to execute within said sixty days, the officer who took such goods on the attachment, must deliver them up to the de- fendant, the owner of such goods, on demand by him made for them. And the attaching officer will not be liable to the creditor in any action for so delivering the goods to the defendant from whom they were ta- ken by such writ of attachment. And if the attaching officer has delivered such goods to a third person for safe keeping, he may in like manner deliver such goods to such defendant after the expiration of such sixty days, no demand having been made for them, neither by the attaching officer, nor by any other officer having such execution to serve, and will be liable to no action therefor, though he in his receipt for such goods prQr (/•) Kirby, 114. (s) Root, I, 90. 30 SHERIFF, CORONER & CONSTABLE. sheriff, inised to deliver them to the attaching officer on demand, (f) Liable to fine The statute which subjects an officer to a fine for [n rB e°xecu U tion not executing, or not returning any writ delivered as well asori-to him to execute, extends as well to writs of exeeu- gmai wnt. ^.^ as to original writs or mesne process. But if a party bring an action in his own name only against an officer for such neglect, the court are not, on such action, bound to inilict such fine, (u) May return If a sheriff who has served a writ of attachment, writ to cierk's retlirn it to t j ie ] 10use f the clerk of the court to house, he be- ing absent, which such writ is returnable, and there, the clerk being absent, deliver it to his wife inclosed in a wrap- per, and inform her what the wrapper contains, but such writ is not entered in the docket of such court, by which the plaintiff loses his hold on the pro- perty attached, yet no action lies against such sheriff for not returning such writ, he having, under the circumstances, done what the law requires, (y) Deputy pro- If a deputy sheriff, in consideration of his appoint- mi ngtopay t to s ^ office, promise the sheriff making such a yearly sum ' * ° for his ap- appointment, to pay him at the rate of a certain JroSgood. s »'» perywur for said appointment, snch promise is MOd« and the consideration sufficient to support an action for the recovery of the sum promised.(u') If a veil be directed to the sheriff without mention- ing his deputy, \ci it may be served by a deputy. w bal ha rioc* By the common law of England, all writs directed by defwty-btfg t | ic s ]ierifT, mav be executed by his general or does by * * ° hunsHf. (/ ) Rno t, II. 4S1. (m) Ibid. '251. (t) I)i»v, II. 480. ) Ibid, i28. SHERIFF, CORONER & CONSTABLE. 31 special deputy: and there is no diversity between the J^Jl^ English and our law in that respect, or the mode of return. What the sheriff does by his deputy is done by himself. If the writ be directed to the sheriff it may he served by his general, or special deputy, though they be not particularly described in the direction ; and that whether it be a writ of execution, or mesne process, the power of his office cannot be restrained, unless by positive statute.(a?) And if the treasurer of the state direct an execution to the sheriff against a collector of state taxes, the sheriff may depute a member of the town where the collector belongs to serve such execution. (t/) Sheriffs of the cities in this State, have within theofcities.have limits of their respective cities the same powers an d^ h f° w t " e s ir authority, and are liable to the same suits and penal- jurisdiction. ties for neglect of duty, in any case whatsoever, to all intents and purposes, as sheriffs of counties are ; and must obey all lawful writs directed to them by courts and magistrates not of the city, when such, writs are to be executed within the limits of the city to which such sheriff belongs. And service of writs within such cities, returnable before the eounty or superior court, when made by the sheriff of the city where serviee is done, is as valid as though performed by the sheriff of the county. (») In the state of Vermont, a sheriff, as the known first in Vermont, executive officer of the county, is not obliged to show SjjJJSjJ ar ! his warrant to any one, neither to the person arrested, rant, nor to the bystanders. His deputies are by the statute clothed with the same power; and their names and (t) Kirb. 240. ViJe Eac. Abr. Title sheriff. Cowp. 403. Black. Com. 1. H6, 339. (y) Ibid. Salk, I. 12, 95, 96i Holt, Ren, 221, Hobart, 12. Black, Rep. II. 332. (0 Root, I. 5i2. 32 SHERIFF, CORONER & CONSTABLE. sheriff, deputations are put upon the public records of the v- ^ v ^^ county, that their appointment to office may be known to all ; and all are obliged to obey these officers in carrying into effect the legal orders of the govern- ment : and when they attempt to apprehend any one, the fair and legal conclusion to be drawn by all, is, that they are lawfully authorized. (a) Deputy may A deputy sheriff may serve a writ in favour of the J^/^ 1 ^.' selectmen and overseers of the poor of the town of lectmen of > v hich such deputy sheriff is an inhabitant. The ' L interest of the sheriff is so remote, that it does not lives. disqualify him from serving the writ. (6) io action on In an action on the case against the sheriff, for {ff^ay'uke taking insufficient bail upon mesne process, by the advantage ufplaintifPs producing the records and proceedings on the illegality*, . , ,, . ,. . . . , . • „• of ki. fa. in the judgment in the scire facias against him in evi- case.&c. dence to the jury, the sheriff is by the act of the plaintiff so far made privy to the record, that he may lake advantage of the illegality of the issuing of the scire facias. And if a scire facias be issued against bail taken on mesne process returnable to a county court, it must be signed by one of the j udges, or the clerk of the county court to which it is returnable: and if signed by a justice of the peace only, is void as to the Bheriff, and maj h\ him he taken advantage of, when- ever an attempt is made to use it against him.(e) (») Tyl. Rep. H. -214. (A) Ibiil. I. Ml. (c) Ibid. II. SI'.'. SHERIFF, CORONER & CONSTABLE. II. CORONERS. THE coroner is a very ancient officer at the com- coroner. mon law. He is so called, because his office princi- His office and pally concerns pleas of the crown. In former days, cor- appointment. oners were the principal conservators of the peace with- in their counties. The lord chief justice of the king's bench is the principal coroner in the kingdom, and may exercise the office in any part of the realm. There are also a number of particular coroners for every county, in some more, in others less. They are chosen by all the freeholders in the county court. For this purpose there is a writ at common law, de corona- tore eligendo, in which it is expressly commanded the sheriff, quod talem eligifaciat, qui melius sciat et velit ct possit officio Mi in tendere. The coroner is chosen for life, but may nevertheless be removed for various cau- ses occurring, deemed inconsistent with his executing the office in a manner most beneficial. His office and power are either judicial or ministerial; and consist, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death : and this must be done, super visum corporis, upon the view of the body; for if the body be not found, the coroner cannot sit. He must also sit at the very place where the death happened, and his inquiry is made by a jury from four or five towns over whom he is to preside. If any be found guilty in this inquest, of murder or other homicide, he is to commit them to prison for further trial, and must certify the whole of this inquisition, (under his seal and the seals of the jurors,) together with the evi- dence thereon, to the court of king's bench or the next assizes.(a) (o) Bl. Com. I. 346, 347, 348. VOL. I. 6 3* SHERIFF, CORONER k CONSTABLE, coroner. i n taking an inquisition of death, though there be. Inquisition ofmany coroners in the county, an inquisition super death. risiun corporis, may be taken by one of them.(d) Regularly, the coroner hath no power to take inquisi- tions, but touching the death of a man and persons subito morluis, and some special incidents attending it.(e) When it happens that any person comes to a sudden and unnatural death, and notice is given thereof to a coroner, he must issue a precept to the constables of fimr, five, or six of the next towns to return a competent number of good and lawful men of their towns to appear before him in such a place, to make inquisition concerning it. (j ') If the constable make no return, or the jurors do not appear, they are respectively liable to be amerced. fg J The jury must be sworn and charg- ed by the coroner, to inquire, upon the view of the body, how the party came by his death; whether by murder by any person, or by misfortune, or felo dc sc.(h) For he can take indictments of death only upon view of the body and not otherwise : therefore if the body be buried, he must dig it up, and he may lawfully do il in any convenient time; but if the body eaunot be viewed, he can do nothing.(/) The sudden and violent deaths which are all within the coroner's office to inquire, are. from the visita- tioo of God U\ misfortune, w here no other had a hand in it. ;h if a man fall from a horse, or cart; by his OWB hand, as /Wo dt sr ; by the hand of another where (lie offender is not known; by the hand of another (<1) II. 1'. C. U. 40. (<■) Ibid. .S7. (/J II. I'. C. II. 57, 59. Burn. Jus. I. 387. lb 'I- v. (h) II. P. ('. 60. (/) Ibid. 17b. Hawk. 11. 48. SHERIFF, CORONER & CONSTABLE. 35 CORONrR. where he is known; whether by murder, manslaughter, in self defence, or by misfortune, fjj The jury, when sworn, and in view of the body, must be charged by the coroner, to inquire how the person came by his death,* where slain; by whom, and by what means or instrument; where he was slain; whether in any house, field, bed, tavern, or company ; who arc cul- pable, cither of the act or of the force, and who were present, either men or women, and of what age soever they be, if they can speak or have any dis- cretion ; whether he were slain in the place where he is, or has been brought thither since his death, and by what way and by what means, whether upon a horse or in a carriage ; whether he be known, or is a stranger, and where he lay the night before ; of what length, depth,and breadth arc his w ounds ; with what weapons made, aiM in what part of the body the wound or thrust is ; and how many are culpable, and how many wounds there are, and who gave the wound. (fe) The coroner's inquest must hear evidence of all inquest, to . hear all evi- hands it it be ottered to them, and that upon oath; deuce. because it is not so much an accusation or indictment, . as an inquisition or inquest of office.(i) The coroner may and ought to inquire of all the And inquire circumstances of the party's death, and all things stances. which occasioned it : whether by drowning, strang- ling, or by a cord round any of the members of the deceased, or by any other hurt.(m) If it be found by inquest, that the person deceased was killed by a fall from a bridge into a river, and that the bridge was out of repair by the default of the inhabitants of such (j) Ibid. G2. \k) Burn. Jus. I. 388—9. (/) H. P. C. II. 157. Burn. Jus. I. 3S9. (m) Dura, Jus. I. 589. 36 SHERIFF, CORONER & CONSTABLE. coroner, a town, and that those inhabitants are bound to repair it, the town shall be amerced. (n) Hisjurisdic- The jurisdiction of the coroner is confined to his tion confined coun ty . mi ^ on arms f the sea, across which he can to his county, • 7 &c. see what is doing, and on the sea shore, when the tide is out, between low and high water mark, he may take cognizance of matters belonging to his office; but when the tide is in, lie loses his juris- diction as to the space between high and low water mark.(o) But it is said that it is not necessary to take the inqui- sition where the body is viewed. And that an inqui- sition taken at D. on the view of a body lying at L. may in certain circumstances be good.(j)) if more than Where there arc more coroners in the county than oneinacoun- , , _ , . ». . . ty, he who one, he who first proceeds in any matter judicial commences belonging to his office, may complete the same alone a judicial act. as effectually as though it were done by all. And after such proceeding by one, the act of any other will be void. (5) inquiry con- Another branch of his office, is, to inquire concern- wnjck? S P i°S shipwrecks, and certify whether wreck or not. Concerning treasure trove, he is also to inquire who were the finders, and where it is, and whether any onc be suspected of having found and concealed a treasure, (r) is sheriff 1 * The ministerial office of the coroner is only as the f^uin cases, sheriffs substitute. For when just exception is taken (n) I5ac. Abr. I. 495. (o) Hawk. P. C. II. 73. (p) Ibid. 78. (fafute of AVinehcster, the first that mentions the office, does not use language proper for constituting a new office, but clearly seems to suppose such an office then veil known. (c) l miiK Cun. 8. II. I\ C. H. 61. Inst. IV. 267. (/>) Ul. Coin. 1.355. i<^ II. l\ <\ (31. Burn's Jus. I. 362. SHERIFF, CORONER & CONSTABLE. 39 Constables were originally appointed for the better cww^ilw preservation of the peace, and may, by the common Appointment l;iw, arrest felons, and all suspicious persons who go 3 "' 1 general abroad by night and sleep by day, or resort to bawdy houses, or keep suspicious company.(d) Also by the ancient common law it was their duty to act as inform- ing officers, and present at the torn* or lcet* all* Two courts those within their precincts who were not admitted S h e rifff t in into some tithine:, and who had not sworn to the king's which small , _ . offences were allcgiance.(e) And at this day, they ought to pre- tried, ke. sent all offences inquirable of, in those courts. (J ) A constable is not only empowered as all private per- sons arc, to part an affray in his presence, but is bound at his peril to endeavour it, not only by doing his utmost himself, but also by demanding the assist- ance of others, which they are bound to give him under pain of fine and imprisonment^^) And if he sees persons actually engaged in an affray,'whether the violence be done or offered to another, or even to him- self; or if any man shall threaten to kill, beat, or hurt another, or shall be in a fury ready to break the peace, he may either carry the offender before a justice of the peace, in order to his finding sureties for the peace, or he may imprison him himself a reasonable time, till the heat be over, and afterwards detain him till he give such surety by bond.(/i) But he seems to have no power to commit the offender in any other manner, or for any other purpose : for he cannot commit him to gaol till he shall be punished ; nor ought he to lay hands upon those who barely contend with words only, without any threats or personal hurt ; but all he can do in such case, is to command them, (d) H. P. C. 61, 62. (?) Lamb. Con. 5, C. {/) Halt. Sher. 388. (g) Inst. III. 15S. H. P. C. 135. Lamb. Con. 139. Dalt. Jus. c. 1. 8. th) Halt. Jus. c. 1. R. Lamb. Con, 132. Cro. Eliz. 375. 40 SHERIFF, CORONER & CONSTABLE. constable, under pain of imprisonment, not to fight. (i) Notwith- * - '" v ^ standing it is said to be law, that a constable may take surety of the peace by bond, it is most advis- able for him to carry the offender before a justice of the peace, where he can do it. But in no case can he require security of the peace, unless the offence be committed in his own presence and view; for he can- not take any man's oath that he is afraid of death, because he is not a judge of record; which is the reason that an obligation taken by him must be in lus own name, and must be certified at the sessions of the peace, (jj in an affray If an affray be in a house, the constable may break doors tlTpre- °l >en tne d°°rs to preserve the peace ; and if affray- ■erve tbe ers fly f a house, and he freshly follow, he may peace break open the doors to apprehend them.(fe) But he cannot of his own authority compel a man to find sureties who is delivered into his hands as having broken the peace in his absence, but must carry him before a justice of the peace ; neither can he arrest a man for an affray out of his view, without a wan ant from a justice of the peace, unless a felony were done, or likely to be done. (7) If a constable sec a person expose an infant in the street, who refuses to take it away, he may lawfully apprehend and detain sueh person till he or she con- sent to take care of i(.(//i) May not take \ constable mav net take a person into custody for a per.Min into ' cuitody for aa mere assault, unless he is present at the time, and (;) Bac. Al»r. I. 441. Hawk. P. C. I, 268. O) Cro. Eli*. 373,316. (*) Halt. Jus. c. i. 8, u~. (/) Ibid. I.amb. IS). Cro. Kliz. 375. Owen. 105. (m) II. P. C. 77. Moor. J34. SHERIFF, CORONER & CONSTABLE. i i mtei poses mUIi a view to prevent a breach of the w»»ta>i.b. peae. . Rut if an affray lias happened and a blow or ine ,e assauir, wounw Las been received, likely to end in a felony, thar; 1 ^ ,«£* will authorize the constable to take the party intosencc. custody without warranty but in such case it should feionybeiiiee- atmear that there ivas sood ground and foundation for •>' '" WV«»flF ^ rr • 1.1 i actually cum- such a supposition, that a felony was likely to ensue: mittcd. for as on the one hand, by forbidding a constable to (akc a person into custody without a warrant, where death was likely to ensue in consequence of a blow given, a murderer might escape ; so, by allowing the ill-grounded or malicious suggestions of the constable or any other person who might give him information, to justify a constable to take a person into custody, great injury might be done to individuals. The ground ought therefore to appear sufficient and satis- factory ; such as may afford reasonable ground to the constable to believe a felony would probably ensue : for if the grounds are frivolous, or such as it appeal's he himself hardly credited, (as if he consent to en- large the prisoner on a person's becoming bound for his appearance, which he would not do, where he really apprehends a felony will ensue,) he will be liable to an action of false imprisonment, uf he proceed in the arrest.(w) If a regular charge of theft be made before a con- Ma y c °t»mit ° ° , a person re- stable against a third person, the constable is by lawguiariychar^- warranted in committing the party charged. He may if ed Wlth tbeft he pleases use his own discretion, and exercise his own judgment in a charge made before him; and if in so doing he is guilty of no collusion with design to op- press and imprison a person wrongfully, he will not be liable in an action of false imprisonment. (o) (n) Esp. N. P. cases, II. 5A0, 54 L («) Ibid. IV. 80, 81. VOL I. *: SHERIFF, CORONER & CONSTABLE. constable. \o person can act as a peace officer or constable Mart be w - ln a11 ,nc immunities and rights belonging to that ■"■ a&ee, uless lie has been regularly sworn into the office. (») <• proper The constable is (he proper officer to a justice of Mhe"' the peace, and is hound to execute his warrants. e - Hence, i hen a statute authorizes a justice of the jif.n ••• to convict a man of a crime and to levy the penal- i\ l>\ distressi without saving to whom such warrant -hall lie directed, or by whom it shall be executed. the constable is the proper officer to serve such war- rant , and is indictable for disobeying it.(g) And as the office i> altogether ministerial upon principle, it fol- M«jr m e*r«Wwt of Bourse lie may make a deputy to execute a inake ■"«>!. Wwmtt directed to him; but in practice this is not jidcj. \ admitted, unless in special cases, such as the sick- ■ it- — in absence of the constable and the like, when In cannot perform the office in his own person. But without some such special cause, a constable cannot act h\ dcputv.(r) . hemiy If a w arrant he directed generally to all constables, M N P. <-..vs, V. 41. If) M SSI* '■■ 175,961. Rol. K™. II. 78. A:. . I . • ' tta. 508. Ld. Iluym. bib. . IX. 69. SHERIFF, CORONER & CONSTABLE. 4;> afterward s.(m) If a constable after having arrested constable. the party suffers him to go at large on his promise to return, the constable cannot, by virtue of the same warrant arrest him again : but if the party volun- tarily return into custody, the constable may detain him and bring him before the justice, in pursuance of the same warrant. (y) A constable cannot justify an arrest by virtue of a warrant from a justice of the peace, which expressly appeal's in the face of it to be for an offence, whereof a justice of the peace hath no jurisdiction, or to bring the party before him at a place out of the county for which he is a justice.(xo) It is not material whether the party arrested by virtue of a warrant from a justice of the peace be guilty or innocent, or whether the felo- ny, &c. were actually committed or not, if the warrant be good on the face of it, the constable may justify under it. (a?) And hard, indeed, would be his case, if he could not, and yet be liable to indictment for disobedience, as above. If a constable be assaulted If assaulted ia execution ot in the execution of his office, he need not go back his duty, need to the wall as a private person ought to do: and if in " h ^ g ° a ^ ck * striving together, the constable kills the assailant, it is no felony ; but if the constable be killed it shall be construed premeditated murder.(i/) A constable coming to appease a sudden affray in the day-time, in the village whereof he is constable, it seems ever\ man, ex officio, is bound to take notice that he is the constable, because he is chosen and sworn in the leet, where all the residents are to attend; but not so in the night-time, unless there be some notification that he («) Dyer, 854. (p) Dalt. Jus. c. 117. H. P. C. 81. Cvompt. 143. Bac. Abr. 442. (re) Crompt. 147, 143, 149. Bac. Abr. I. 442. (,r) H. P. C. 1.81, 82. (v) Ibid. 37. H. H, I. 453. ii SHERIFF, CORONER & CONSTABLE. constable. i s constable: but whether it be day or night, it is- sufficient it" he declare himself to be constable, or command the peace in the king's name, anl the like, for any who come to his assistance. (x) And if upon an affray made, the constable and others in his assist- ance come to suppress it, and to preserve the peace, and in doing their office, the constable, or other of his officers, be killed, it is murder, although the mur- derer knew not the party killed.(« ) If felony bo If felony is in fact committed, the constable ma> . committed, y , . . . . ,, » , , .,, , mayarre;-t &.C& officio, arrest and imprison the lelon till he can corurmt feiun conveniently be conveved to a justice of the peace, or until, &c. ^ \ • the common gaol ; and it is immaterial whether the felony were committed in the same town, or in nn\ other town or county, if the felon be in the town whereof he is constable. And to make such arrest, he may break open doors to take the felon, if such felon be in the house, and the constable is denied entry after demand and notice that he is constable. And if in at- tempting so to make an arrest, the constable or any who come in his assistance, be killed after competent notice that he is constable, it is murder. And if the felon rcsistand cannot be taken, whether it be after the arrest or before, the killing such felon, who cannot otherwise be taken, is no felony. Nor is it material whether he saw such felony committed, or hath it only by complaint and information : for as well in the one case as the other, he is bound to apprehend the felon, and to make search after him within the limi(> of his jurisdiction, and to raise hue and cry upon him. And the law gives him protection in the execution <»} his office, and will never punish him in (lie necessary (0 11. P. C, If. 461, («) Cok. IV. 40. SHERIFF, CORONER & CONSTABLE. 45 pursuit of what it enjoins him. For felony and sus- conitable. picion of felony, sheriffs and constables may break i„ C ast«of t«- tbe house to apprehend the felon :(b) but if the s US >"y.° r /* 1 H>«- m ■ r K ' cioaot felony, pieion arises in the mind of a third person, and is by may break liim communicated to the constable, he must accom- < a °° e r 'g t tomake pany the. constable, and be present at the breaking; for the justification of the constable must be, that he did aid the person suspecting, in taking the person suspected. (c) If a man and woman be in incontinency together, May arrest a constable may take the neighbours and arrest them "^outiuency. and commit tbem to prison to find sureties for their good behaviour.(d) If a constable, head of the nightly watch, wil-Dutyon fully suffer a person brought to him by one of the nightly watch, during the watch hours, and taken up as a street w alkcr, to escape, it is a misdemeanour in the constable, though no positive charge were alleged against the person so taken up, and suffered to t'scape.(f) In the state of New- York, any constable of the I" Newr-Y«H county where process is issued under the act for the process in more speedy recovery of debts to the value of twenty- f. e,tar " caS€S * r ^ throughout live dollars, may serve such process in any part of the county, such county ; and having received such process for service, is liable for neglect or false return.(a) In the state of Connecticut, if a person he duly in Connect. "ut, need no >e sworn on appointed to tbe office of constable at a lawful town"." 1 ' (6) Cok. V. 90. (OH.P. C. 11.9). (J) ibid. 89. r N Buft Vv<>. II 1 . 86*. \n) Johns. Reo. J. 502 46 SHERIFF, CORONER & CONSTABLE. constable, meeting, for the choice of town officers, and regit* reappoint- larly sworn to the execution of such office within the went the next timcby j limited fop his taking such oath, and be the next year reappointed to the same office, but not sworn, and continues to act as constable in the service of process under his reappointment after the expira- tion of the year, in, and for which he was particularly sworn, yet such service done by him is good and valid, and if resisted in making such service, he may as constable maintain an action against those who make such resistance.(fe) But quere ? See st. C. Vol. II. Town meet- Town meetings for the choice of constables, must in?s for choice *" of. mu>t he be held in the month either of November or Decem- i' ell k^^ JI°*l)cr in each year. And constables chosen at such cember. annual meeting, must be sworn as the law directs before the iirst day of January next following such election. And if a town meeting first held in one of those months, is continued by adjournment into the month of January next after, and at such adjourned town meeting a constable is appointed, all acts done by him as constable are void. And every appoint- ment of constable made in any month other than November or December is void, unless where a town has Income wholly destitute of such officer, in which case, constables may be chosen at a special town meet- ing for that purpose, in any other month. (c) iMutRuid Aeowtable baring by virtue of an execution ar- 1.411., v, per* retted the body of the defendant, who was rescued, it... , . , . *. . .. _ , hu ef.orougW Ins action against the rescuers for an assault ami battery, but did not allege that he was an officer in the execution of his office. "While the action was (b) Root t. 83. (<■) Ibid 135. SHERIFF, CORONER & CONSTABLE. 47 pending, the judgment on which the execution issued constable. was reversed. And on the plea of not guilty as to the assualt and battery, the plaintiff was permitted to prove that he was a constable, and held the person rescued by virtue of said execution. (d) In Massachusetts, constables, though authorized to serve civil process in personal actions, to the amount of $ 70, can in no case serve a Avrit in a real action. Sec direction and service of process post. (.d) Root, I. 5?7. 4S SHERIFF CORONER & CONSTABLE. IV. GAOLER. cAOLKr. THE sheriff lias the custody of all the common H i appamt- gaols in his county.(a) It is incident to his office.(6) Rut he mast appoint an under keeper, who is called tin- : .-,>tilir, and for whose conduct in office the sheriff mu>t an»w er.(c) But whom he may discharge at his pleasure* and if he refuse to surrender up, or quit possession! the sheriff may take him out by force, as he ma\ a private person. ( was not given in self-defence. But if the prisoner gaoler. fleeing, be a felon,and he cannot otherwise be retaken, and he be killed, it is no felony.(i) The gaoler is liable for voluntary escapes, accord- Liable for vot- ing to the nature of the cause of commitment, of " a p° r > y the person escaping. If the escape be of a person committed on civil process, the gaoler is liable in an action of the case, if committed on mesne process ; and to an action of debt, or an action of the case, at the election of the plaintiff if committed in execu- tion,^* ) and may be further punished by attach- ment.^*) If the prisoner was committed for any criminal Voluntary es- offence, and the gaoler voluntarily suffer him toinai cases, a- cscape, the escape amounts to the same kind of ei'ime,™?^"^^^ and is at common law punishable in the same degree with prisoner as the offence of which the prisoner was guilty, and was for which he was in custody, whether treason, felony, or trespass. And if the warrant of commitment do plainly and expressly charge the party with treason or felony, but in some other respects be not strictly for- mal, yet it seems that the gaoler in suffering an escape, is equally punishable as if the warrant were perfectly right. If the warrant be good in substance, the gaoler is bound to observe it as strictly as if ever so correctly made. But no escape can amount to a capital offence, unless the crime for which the party was committed were actually such at the time of the escape: and if a gaoler suffer one to escape who is committed for having given a dangerous wound to another, who dies of such wound, yet he is not guilty of felony j for that the offence of the prisoner was but a (*) HP. C. I. 481. (j) Dalt. Sher. 466. (<) H. P. C. II. 0.17. vol. I. * W SHERIFF, CORONER k CONSTABLE. caoieh. trespass at the time of the escape, though hy a fiction Vw °^ / of the law, it be afterwards for some purposes es- teemed a felony from the time of giving the wound, yet since it is in truth no felony till the death of the patty, it shall be afterwards construed to be such, with respect to those only, who were privy to the giving of the wound. (/) not bear- v gaoler, who suffers a prisoner to escape, who So^^^wts fo his custody for felony, cannot be arraigned for cape until s^h "escape as for a felony, until the principal be principal De l * , . ,. , i 1 j. • 1 Bttainied. attainted ; hot such gaoler may be indicted and tried for a misprison before the attainder of the principal. If the commitment were for high treason, and the prisoner committed actually guilty, it seems the cm ape is immediately punishable as high treason also. But no one is punishable as for high treason, Inr a voluntary escape, but the person who was actnalh and voluntarily guiltv of it. The sheriff is only fmcable for a voluntary escape suffered by his deputy the gaoler; for no cue shall answer capitally lor the crime of anothcr.(i»i) lot i,i. For a negligent escape, the sheriff is equally with eaca ff« . « , , . , , , ... I ,.,i, k his depot} gaoler, liable to answer, aim the court tfohgaoler. n , ; , v eharge either the sheriff or the deputy gaoler for Mtb an escape; and if the deputy gaoler be not Millirinit to answer a negligent escape, his principal Ditfl answer Kr him. Though for suffering a single \olimtar\ escape, the gaoler forfeits his office, yel the court v. ill not deprive him of it for one negligent escape: hn! if he suffers many negligent escapes, it pu(> it in (he power of the court to oust him out of hi-> office at their discretion. (h) Hawk, P. C. II. 204) W5. Salic. I. 87*. II. P. C. I. 5?;. Hawk. P. C. 11.805, Bulk, !. 872, H.P.C. 1.837. Ibid, tdi, 206. SHERIFF, CORONER & CONSTABLE. 51 If upon an indictment or presentment-, the gaoler ^aoleo^ be found guilty of a negligent escape, he ought to bo condemned in a sum certain, as a fme.(o) By the common law, the penalty for suffering a Penalty by i. « i ^Ann common 1r\v. negligent escape of a person attainted, was .£100 ; and for suffering the negligent escape of one indicted, but not attainted, was 100 shillings : but if the per- son escaped, were neither attainted nor indicted, it seems to have been left with the court to assess such reasonable forfeiture as should seem to them proper. And if the party should have twice escaped, the for- feitures were doubled. Yet the forfeiture was no greater for suffering a prisoner, committed on two several accusations, to escape, than if he had been committed on but onc.(p) If A. arrest B. for felony, and deliver him to the constable, A. is discharged of the custody, and the escape after, if any happen, is chargeable upon the constable; and if the constable deliver him to the sheriff or gaoler, and he receive him, the constable is discharged of the custody, and the sheriff or gaoler is chargeable with the escape.^) If A. the sheriff of B. hath a felon in gaol, and then C. is made sheriff, till the prisoner be turned over by indenture to the new sheriff, the custody of him remains in A. and he or his gaoler is chargeable for a negligent escape, and his gaoler for a yoluntary escape.(r) ' ' (») Hawk. P. C. IT. 206. (;,) Ibid. H. P. C. I. 604. (y) H. P. C. I. 594. M»nic not to excuse a voluntary escape as to fclon\ ; hut it certainly is punishable as a misde- HHnr ; and if he do not return, the escape amounts It fclony.(u) .sh«nff tnt- If ■ gaoler deputed by the sheriff, voluntarily suffer »biefor. u f,.| on j n iii! enstodj to escape, it is felony only in tlie gaoler, not the sheriff. But whether the escape were voluntary or negligent, the sheriff may be (/) H. P. C. I. 596. (') Ibid. (*) Ibid. 597. SHERIFF, CORONER & CONSTABLE. 53 indicted, fined, and imprisoned for the offence of the gaoler. gaoler. And though not felony in the sheriff, yet it is a negligent escape as to him, for trusting a person thus false and unfaithful with the custody of his pri- soner.^) A eraolcr making fresh pursuit after a prisoner, Gaoler may retake prison -who had escaped through his negligence, may retake C i negligently him at any time, even at the distance of seven years, J 808 ^'.^ and where he can find him, either in the same or a different county : but if the prisoner has gone beyond the view of the gaoler, it will be a negligent escape, which the recaption will not purge, but it may mitigate his fine ; but if the retaking happen before the prisoner has fled out of the sight of the gaoler, he is not punishable, it being in law no escape. (re) re- If a gaoler voluntarily suffer a prisoner to escape, May not it is said he can no more retake him, than if he had „* "Voluntary never been in his custody.(a?) But the cases cited m esca P c - support of the last dictum, are on civil process. If a man be committed to prison on civil process, Liable to ac- , ,, i i* • 1 j. ■ • j tion for abuse and the gaoler maliciously puts him in irons, or puts f prisoner. him in the stocks, or withholds from him his victuals, whereby he becomes decrepit, lame, or otherwise diseased, &c. such prisoner may have an action on the case against the gaoler.(i/) And though it is the duty of the gaoler to keep in safe and close custody all persons committed to his charge by lawful warrant, or order of court : yet if the gaoler, having A. a prisoner in his custody, («?) H. P. C. I. 597. (rv) Ibid. 60-2. Hawk. P. C. II. 200. (r) Hawk. P. C. 11. 200. Co. III. 52, Cro. Jao. 659. ■ u) Daft, Slier. 46?. H SHERIFF, CORONER & CONSTABLE. caoler. whom he knows to be infected with an epidemic ~*^ distemper, confines B. another prisoner, against his will in the same room with A. whereby B. takes the infection, and dies, this is a felonious killing by the gaoler.^) Guilty of fe- It is also felonious homicide in the gaoler, to con- ueatiagaprilfiNB a prisoner in a low, damp, unwholesome room ; soner, so that not a ii 0M i nsr hi, n the common convcnicncics which he die. the decencies of nature require, by which the habits of his constitution are so affected, as to produce a distemper of which he dies.(a) For, although the law invests gaolers with all necessary powers for the interest of the state, they arc not to behave with the least degree of wanton cruelty to their prisoners. The eases above describ- ed, arc deliberate acts of cruelty, and erroneous vio- lations of the trust the law reposes in its ministers. (b) If a gaoler keep a prisoner more strictly than the law requires) whereof the prisoner dies, this is felony iu the gaoler by the common law; and this is the reason why, if a prisoner die in gaol, the coroner ought to inquire of his death. And when the death is owing to cruel and oppressive usage on the part of the gaoler or his officer, it is wilful murder in the person guilty of (he durcss.(c) riag to If the gaoler refuse to receive a prisoner, arrested -.'ilai.i.- 011 i"<^tie proce^, though tendered after the return rfMMcape. dav of (he uiii on which he was arrested, or refuse ti reoeivo ■ pcrsoB taken in execution, and delivered (:) Stra. s .".<".. Hawk. P. C. I. 119. (a) Stra. B84. f..i. Raym. 1587, H«wfc P. C. I. 118. Foster, 52?. (<•) II. P. C. J. *32. Foster, 321, M2. SHERIFF, CORONER & CONSTABLE. 55 or brought to such gaoler at the prison, and the ^^ prisoner escape, the gaoler must answer the dam- age or debt. And if the prisoner do not escape, Fineabie, if "ftt, w« » nil* ! prisoner do J lie gaoler shall be fined for such rctusal only. And 110t escape. in like manner shall be lined for refusal to receive a prisoner sent to him on criminal process, by lawful authority, (rf) A gaoler is punishable by attachment for gross l™£££? misbehaviour in his office; such as barbarously using for misbeha- a prisoner; for disobeying writs of habeas corpus law- vl0ur mofticc ' fully issued ; and not bringing up the prisoner at the day prefixed by the court or judge issuing such writ. And it is no excuse for not obeying a writ of habeas corpus ad subjiciendum, that the prisoner did not tender the fees due to the gaoler, (e) The want of a tender of the gaoler's fees, is said Musfc obe >' ° , _ habeas corpus. to be no excuse for not obeying a writ ot habeas cor- pus ad faciendum & recipiendum; however, it is cer- tain, that if the gaoler bring up the prisoner by virtue of such habeas co-rpus, the court will not turn him over until the gaoler be paid his fees.Qf) If a prisoner is unruly, and makes any attempt to May not put escape, so that the gaoler has just reason to fear that^ " 6 ^,"^* he will effectuate it, the gaoler may hamper such& c « prisoner with irons to secure him ; but without such reasonable fear, to put a prisoner in irons, is altoge- ther unwarrantable, and at common law may not he done, (g J An action of debt will lie against a gaoler for the Liable in debt, escape of a person in execution, though such escape for an esca P'' yd) Dalt. Sher. 46G. .Term. Rep. I. CO. (e) Uav.k.P. C. 11. '227. ;0 Ibid. [s) H. P. C. I. 001, Inst. II. SS!; *6 SHERIFF, CORONER & CONSTABLE. caoler. were without the knowledge of, and without any fault without his on the part of the gaoler, who in such case can avail taMvMffc himself of nothing hut the act of God, or public enemies, as an excuse.(/i) May not dw- If the creditor in an execution give a written au- ^r on^auti.T'.V-tlioritv for the discharge of the debtor out of prison, u f.um.nu - an ,i aiteiuavds, before the prisoner is discharged, tkiiif* be" countermands the authority for his discharge, and t ounterruand- thr r;i( ,i el . „ t withstandingdiseharge the prisoner, the etl Injure d is- n 1 r. charge. creditor may recover against the gaoler for an escape, ami the gaoler has no remedy against the person dis- c barged, for the money recovered in the action for the escape. (?) «"c le of°pr"- If ii defendant be arrested, and let to bail, and af- °— '>—"***■ UammB&n the plaintiff cause him to be again arrested '-hwgeof baii.in another suit, on which he is committed, and the bail in the first action, (the defendant being so in custody on the second arrest,) before the return day of the writ, notify the sheriff in writing, that they surrender the defendant so in custody, in discharge of their bail bond, given on the first arrest, and the sheriff do not manifest an acceptance of such sur- remh-r, and the prisoner afterwards escape, and the iheriff pays the amount of the demand for which the prisoner \>n s Bw< arrested, and let to bail, the sheriff cannot recover the same against the gaoler, on his bond of indemnity; for at the time of the departure uf the prisoners be was not in custody on the first, the sheriff BO( having a>sentcd to such a surrender, :iml of course it vas no escape in the gaoler, and no breach of the condition of his bond, to save the she- rill' harmless from eseapcs»(J) (h) Hen. Iflack. II. 103. (;) Peak, N. iv cut), 144. Note(».) (j) Last, I.J83. SHERIFF, CORONER & CONSTABLE. 57 As the gaoler, who suffers an escape of a prisoner, caoler. indicted for two or more distinct felonies, is liable as h, s jj a i,iiity for but one escape, so if two or more persons be in-?" e « c fP e pf 1 r two indicted dieted for one felony, and escape, the gaoler is liable for the same, to be indicted severally for the escape of each.(fr) If an action be brought on a bond, before a court N °t liable for of limited jurisdiction, and the plaintiff sets forth ecutionfrom" that the bond was made within the jurisdiction of the court . not . h , av - " nig junsdio- court, (when in truth it was not made within their tion. jurisdiction,) and the action proceed to judgment, the defendant not having excepted to their jurisdiction, and execution issue, and the defendant be arrested, and committed to prison,and afterwards escape, neither the gaoler nor sheriff is liable in an action for such es- cape ; for all that was done, was coram non judice, and therefore no legal commitment. And though the de- fendant in the court below, pleaded non est factum, that cannot give the court jurisdiction which it had not before. (I) (*) H. P. C. I. 599. (/) Mod. II. 29. VOL I. CHAP. II. Of different Processes, and their Incidents. I. DIRECTION AND SERVICE OF PROCESS. THE office of sheriff consists chiefly in the execu- d»ectioh,« , c. tion and service of writs and processes of law; and to do this, he is the immediate officer of the king and all his courts. For this purpose, he is sworn to a faithful performance of his duty, without favour, dread, or corruption. (a) By the ancient law, all original writs (purchased Process di- at the suit of a party to maintain actions,) are to [ff^niess &c~ be directed to the sheriff of the county where the cause of the suit arises, and may not be directed to any other person, unless in special cases, where there is good cause of exception to the sheriff, when the writ must be awarded to the coroner. (6) Where the sheriff is a party, or cousin, or other- wise of kindred, or tenant to the other party, and which is not denied by such other party, the process must be directed to the coroner of that county, and must by him be executed. Yet it seems that when a sheriff is plaintiff, the original process, summons, (a) Dalt. sher. f»6. (M Ibid. co SHERIFF, CORONER & CONSTABLE. MMcmMTm capias, and the like, may be served by him on the defendant; and he, or his under sheriff for him, may afterwards put in pledges of prosecution when tin writ is pending. And when they come to issue, he or the defendant may shew that he is sheriff, and the venire must be directed to the coroner. But if the plaintiff be named sheriff in the writ, a coroner must execute if ; and so he must if the sheriff be defend- ant.* In some cases, where the sheriff makes default in the service of process, it must be directed to the coroner. And a coroner must serve an attachment awarded against a sheriff. And if the sheriff be guilty of partiality in returning the array, and there- upon the jury be quashed, process goes to the coroner; and in the writ to the coroners, the sheriff is com- manded not to intermeddle. (c) May not be jj ut jf tue sheriff be dead or removed, or otherwise directed to coroner, if there be uo sheriff, the process may not be directed here be no t(J ^ coroners fout must be stayed until a new sheriff be appointed. For the sheriff being the immediate officer of the courts, process may not go to the coroners but in special cases only ; as where it is alleged that the sheriff* is of kindred, or tenant, to either part> ; or is himself party to the suit, as above; or that the sheriff, made default, or is found partial as aforesaid: in such cases, process must be directed to coroners; otherwise, to the sheriff. And if the venire facias be awarded to the coroners, Mwie it ought to have been directed to the sheriff, «>r | t on v tn o, (and so the jury be returned by such as have no authority,) it is error, and is not remedied bj the statute of jeofails. (d) • Wbcrt a kbciifl is plaintiff, &lulilat directed to himself is inc- \ >•:. I. ri. Rep. 50o. (0 Dall »b«r. t>7, 98. Co. X. 103, 104. Co. Lit. 138. I '."5. Co. V. C>6. SHERIFF, CORONER & CONSTABLE. 61 When the original process is onee directed to the D « R ECTioN,# c . coroners, all the residue of the process in that suit original pro- must follow the original, and be likewise directed to cess directed to coro»er,re- the coroners,* and that, though the sheriff be dcad,sidue of the or removed, or acquitted, and another indifferent ^"® b ™£^ sheriff be appointed, pending the suit.(e) If process go to the coroners, and there be four in the county, it is said that any two of them may execute or reiurn it; for the plural number, to coroners, is observed; but one of them alone cannot execute or return such, process, (f) But if three of the coroners die, the fourth may execute and return the process, until more be appointed.^) If favour in the under sheriff, (or that he is of kindred to either party,) or that he is a party, be alleged, the process must be directed to the high sheriff, with this clause, (it seems,) that the under sheriff shall not intermeddle. (/i) If both the sheriff and coroners be found partial, if sheriff and or faulty, the process must be directed to elisors JartiX pro- appointed by the court, which elisors, upon a wmre cessdirected facias to them directed, must make and return the pannel, and after the return thereof, must serve and execute all other process which may issue in the suit, as the sheriff should have done, if the process were directed to hini.(j) Sir John Fortescue (some time lord chief justice, and afterwards chancellor to king Henry the sixth,) writing on the subject, says, If the sheriff return a (e) Dalt. sher. 99. (/) Ibid. Co. IV. 46. (?) Ibid. Co. Lit. 181. (A) Ibid. (0 Ibid. Co. Lit. 153 62 SHERIFF, CORONER & CONSTABLE. dihectiox,.Su. favourable pannel, exception may be taken to it by either party ; and if the exception be found true, by the oath of two of the same pannel, (chosen thereto by the justices.) the pannel must be quashed : and then the justices shall write to the coroners of the same county, that they make a new pannel; and if that be found faulty, that must also be quashed: and then the justices shall choose two clerks of the same court, or two other persons of the same county, who in the presence of the court, must, upon their oaths, make an indifferent pannel, which may not be chal- lenged by either party. But exception may be taken by either party to the poll or person of any such pannel, as to say he is cousin, &e. to the other party, which being found, such person shall not be sworn, (jj Sheriff?, &c. Sheriffs and under sheriffs must receive all manner musi rtceive aii w.u at ail of writs in anyplace, and at all times, within the t,mes- county, when, and wheresoever they shall be deliv- ered them, without further compensation than the the fees by law allowed; and must by themselves, or some lawful substitute, execute and return such writs according to the directions in them respect- ively given, and for neglect are liable to be fined. And the sheriff, ccc. on the delivery of any such writ, must execute a receipt for the same, giving such a description thereof, as to enable the person deliver- ing if, to prove such delivery if ever questioned. li\ tlii* means remedy may be had against the sheriff for noi executing such writ, or making a false return sh iff miv as to the time the writ came to his hands, (fc) Though «"< »riuaf] \rri(H arc directed to the sheriff, yet he has choice. commando- to execute them himself, or he may command his ""' '""""'under shcvilf, bailiff, or other sworn officer, to serve lii'tr to do it. (>) Dalt. sber. 100. Co. Lit 159. (*) Ibid. 101, 103, SHERIFF, CORONER & CONSTABLE. 63 or execute them,* and such command of the sheriff by >"* ECrI0N '^" c word only, is good, without any preeept in writing ; but if such command be given to one not a sworn officer, it must be in writing, and accompanied by the writ.(l) If a writ or other process is delivered to the under sheriff, he must either execute it himself, or make his warrant in the name of the sheriff, to some other person, who may execute such writ or other process, but can command no other person to do it * and each respectively, having such writ or process to execute, may take the posse comitatus.(m) Neither the sheriff nor his officers may dispute the authority of the court from which they may receive any writ, process, or other warrant, but must execute all writs, precepts, and warrants, of the court, judges, or justices, to them directed, if within the jurisdiction of such court, judge, or justice, as may have issued the same* but if the court, judge, or justice, has not jurisdiction, the officer must take notice of it at his peril* for want of jurisdiction in the authority issuing any writ, process, or precept, will subject to an action the officer serving the same : not so, if the issuing such writ, precept, or process, is merely erroneous, (n) The sheriff or other officer, to whom any writ or Officer's dutv warrant shall be directed and delivered, ought to execute it with all speed and secrecy, and pursue the directions therein contained $ else he cannot justify under it. When directed to attach the goods estate, or person, of a debtor, if by the delay of the officer having such warrant, such debtor absconds, or his goods are removed out of the jurisdiction of such officer, or are sold, or such goods or estate arc (/) Dalt. sher. 103. (m) Ibid. 103, 104, lOo. («) Ibid. 109. 6* SHERIFF, CORONER & CONSTABLE. DUECTioK.^v.by some other officer seized by virtue of lawful pro- cess, the officer thus delaying, becomes liable to an action for such his delay.(o) A known officer need not show his writ or warrant before he makes service of it, although demanded 5 but one specially appointed, not known as a public officer must, otherwise the defendant may make resistance: and every officer who will justify an arrest or attachment by virtue of any writ or warrant, must produce it in court. It is also the duty of every officer, having made an arrest or attachment by virtue of any writ or process, to show it, if required by the defendant, that he may cither pay the money demanded, or procure bail, or in some other way be enabled to liberate his person or goods. But though such officer need not show his precept when making such arrest or attachment, yet he ought to declare the contents of it, unless when the defendant makes resistance, in which case the officer need not even declare such contents, until the person arrested sub- mit himself thereto. And if the officer is not known to the person whom he arrests, yet, when such officer says, I arrest you in the king's name, it is such notice to the person arrested, that he is bound to obey; and if arrested without lawful authority to make such arrest, he may have his action of false imprisonment against the person arresting.(p) If a sheriff or other officer come to arrest a person, Sheriff, &c. ■ nay pursue g. take him, even in another county, but mu9t use no violence to him. he not having been actually arrested (o) Dili, slier. NO, 1 1 1 I (/.) Ibid. Co. IX. 68, C9. SHERIFF, CORONER & CONSTABLE. 65 before he fled; but if, after being arrested, he flies, BiMcTWMjre- and when overtaken, draws any weapon, the officer may justify an assault and battery to take him.(g) If an officer arrest a person without warrant, though one be delivered to him immediately after, to arrest the party for the same cause, yet the action is tortious, and the officer liable in an action of false imprisonment by the party, and may be amerccd.(r) If the person or goods of a stranger are seized Liable fw er attached, though his name is the same, and hep e '^f Q ^. affirmed himself to be the defendant yet the officerS° ods of a ii liable in trespass : so if such person or goods & c . are pointed out to the officer by the plaintiff, as the person or goods of the defendant. But if there are divers of the same name and sirname in the described limits, and the officer cannot by any means ascertain which is in fact the defendant named in the writ, it is safest for such officer to return such fact, and that he knows not on whom to execute such writ.(s) If an officer arrest a defendant by virtue of a writ May not re- or warrant, and permits him to go at large to procure,^ h^p^SS bail, on an agreement by the person arrested, that him to g° a t he will return to such officer on a day agreed, but r§e * does not return, the officer cannot retake such de- fendant by virtue of the same writ or warrant; but if the person arrested escape of his own wrong, without such consent of the officer, he may, on fresh pursuit, retake his prisoner, and repeat it as often as he escapes, though he gets out of the view of such officer, and even flies into another county. (t) (?) Dalt. iter. 111. (>•) Ibid. (*) Ibid. 112, 113. Com. sher. 90. (0 Ibid. 115. VOL. I. 1Q 66 SHERIFF, CORONER & CONSTABLE. BiaxcTioN.tfc. if an officer arrest a person on a capias, or writ of attachment or other lawful process, and returns, non est inventus, the person arrested, may maintain false imprisonment against such officer.(u) a person ,n If a person is in custody of the sheriff hy lawful custod > " 0,,e authority, (except for criminal matters,) and another process, (riv- . K r »• v .ljwiii be also writ is delivered to the sheriff, commanding him to f J e D .iefed° n to' iftake the bo( b of such person then in custody, by vir- the sheriff, tue of such other writ, and if such sheriff shall refuse to receive such other writ, or shall not hold the prisoner upon it, it will be an escape in the sheriff, though he made no formal arrest hy the second writ.(r) Every person who has any suit pending in any of the king's courts itt Westminster, is privileged from .my arrest either of his body or goods which are necessary for the maintenance of such suit.(tc) sheriff, 5cc. jf anv officer or other person, arrest any clergyman mav " ot ar ' ,1 11 e • a- ■ ■ ■ iest person or other person while performing divine service in orrnmg tno eUurc j| or <.] 1U rch yard, or other place dedicated diviueserTice, * * to God, he is liable to be imprisoned, and punished at tlie king's pleasure, and to recompcncc the party arrested ; but none may be kept within the church hx fraud or collusion; aud the sheriff may, if neces- sary, serve i>i8, 356. (*) Ibid. 475. ro SHERIFF, CORONER & CONSTABLE. MRECTjfiN.^v.also take his body : and if after having taken the de- ods and fendant's goods or estate, he also take his body, such y- officer is liable to an action of false imprisonment, in favor of the person whose goods, or estate and body are so attached.(o) in Vermont, j n tue sta t e f Vermont, a warrant to apprehend apprebead a person charged with a crime, upon the complaint Swti'i*? 11 *' a P livate informer, cannot legally issue without upou oath, oath made by the complainant. And though the complainant write in his complaint, that it is under oath, and the mittimus set forth that the complaint was so made, it is bad, and nothing short of the cer- tificate of the magistrate, that the oath was admin- istered, is sufficient evidence thereof.(p) sci. fa. v. bail. \ wr it of scire facias, issued against bail taken on mesne process returnable to a county court, must be signed by one of the judges, or by the clerk of the court to which such writ of scire facias is made re- turnable. And if signed by a justice of the peace only, all proceedings thereon are, as to the parties, erroneous, and in relation to third persons, void. (o) Root, H. 34«. (>) Tyl. Kep. I. 444, SHERIFF, CORONER & CONSTABLE. 7\ II. SUMMONS, SUMMONS, SUMMONS is a writ, directed to the sheriff or other proper officer, to cite or warn one to appear at What, and a certain day, and answer, &c. The summons must be made by or in the presence of two or three sum- moners, who ought to be free and lawful men of the neighbourhood. And in real actions, the sheriff's order to serve or execute this process, is to go himself, or send his deputy to the land with the summons, and there to cite or warn the tenant, or party, by sticking up a white stick in his land ; which done, the sheriff must return the common pledges for the plaintiff, and the names of the summoners, thus : ™ i x. *• {John Boe t Pledges of prosecutmn j Rkhard ^ Summoners of the within named J. S. (the deft.) {Richard Dec, Henry Few, This summons, or warning of the defendant to ap- pear and answer, &c. i.« so necessary by the common law, that without i>, all the proceedings and judg- ments after, are fc* In erroneous, and rendered fruitless, and the officer liable to punishment and damage. For , if a man recover in a writ of dower, or waste, &c. by default of the defendant, when in fact he had not been summoned, (nor attached, nor distrained) he may have a writ of deceit against both the offieer and plaintiff, (a) (a) Dalt. sher. 149, 150 72 SHERIFF, CORONER & CONSTABLE. summons. in a writ of trespass, the sheriff returned a nou in^trejas*! «f inventus, whereupon a capias issued out to take the defendant, who afterwards came into court, and alleged that he was sufficient, and that he might have heen summoned,- and prayed a writ against the she- riff for his false return, andhadit.(6) Real actions. In real actions, the sheriff or his officer must sum- mon the tenant upon the land, but in an action of debt, for damages recovered in a writ of entry, &c. the summons must be to the person. Petit c«pe. In a petit cape, the sheriff must summon the tenant to answer to his default, and to hear his judgment upon it, after plea, issue, or demurrer. But in a grand cape, the tenant must be summoned to answer to the default, and further to the demandant.(c) R ( ■! actions. In mi m mons in real actions, the summoners, in presence of the pernors, (receivers) and viewers, &c. ought, 1st, to summon the tenant to keep his day of return, andVame it certain, to answer, &c. 2d, they must name the name of the defendant ; 3d, the land demanded, (d) And the sheriff, by force oV-*hc pracipe, may come upon the land with the summoners' /f.ul there summon the person against whom the pracif'^ is brought; but if the sheriff, by information of the demandant, shall summon the tenant in another man's land, the sheriff shall be excused. And the summons in a pracipc must always be done in the day time, between sun- rising and sunseUing. and not in the night, and fifteen days at least, before the return of the writ.(e) (b) Dalt. slier. 150. (0 Ibid. 151. (ft) Co. VI. 52. (<•) Duit. ib«r, i5i. SHERIFF, CORONER & CONSTABLE. 73 The sheriff cannot summon the tenant by rent summons. common op reversion, nor the like; for that the soil is another man's freehold. And yet where tenant for life, prays in aid of him in reversion, and a scire, facias issues to summon him in reversion, and the sheriff returns that the reversioner hath nothing in the county but the reversion of the land in which he hath summoned him, it is a good return; for he must be summoned in the land demanded, and which is ano- ther's freehold, ff J But where the action is to recover the freehold of land, the summons must be made in the same land. And where the summons is brought against one as heir, the summons must be in the land descended, (g) Upon a precipe, if the defendant be not tenant of the land, &c. yet the sheriff must summon him ou the land demanded; inasmuch as the plaintiff has sworn that he is tenant. And, indeed, the writ does not command the sheriff to summon the tenant upon his own land, but generally, that he must summon him, not naming in what land. And then, by a maxim in law, it is taken, that he must summon him upon the land in demand. (ft) If the sheriff summon him who has no land, byoae who has his person, and return him summoned, it is good. As ! 10 land may , r ' ° be furamoneu in actions of annuity or covenant, summons is the by his person. proper process ; and where the defendant has no land, he may be summoned by his person, and in all actions merely personal, the sheriff must summon the de- fendant by his person. (f) (/) Dalt.sher. 151, 152. (g) Ibid. (h) Ibid. 152. (0 Ibid. vol. i. 41 74 SHERIFF, CORONER & CONSTABLE. summons. in a praecipe there ought to be two summoncrs, for ^"^"^ if there be but one, and the tenant make default, and lose bv his default, he shall have a writ of deceit against the sheriff. (jj sheriff can- The sheriff cannot summon himself; and if he do, not summon an( j suffer a recovery, it is erroneous: and if he return oue summoned, who has not been summoned, lie it is punishable. (it) (j) Dalt. sher. 153. (*) Ibid. 152, 153. SHERIFF, CORONER & CONSTABLE. 7* III. ATTACHMENT AND CAPIAS. ATTACH comes from the French word attacher, attachment, and signifies to take or apprehend, by commandment ( ^^ y of a writ or precept. (a) Attachment, v what, andit* difference It differs from arrest, in that he who arrests a from arrest - man, carries him forthwith before a person of higher authority, to be disposed of as the law directs ; while the person attached may be kept by the officer exe- cuting the writ, and presented in court at the day assigned. An arrest is executed on the body only, but an attachment often upon goods and chattels, (6) and is most properly issued in personal actions. A capias takes hold of lands and tenements, and Ca P' as » what » tt *. l * l *• r \ and lts d,ffer_ appropriately belongs to real actions. (c) ence from at- tacbment. The difference between a common attachment and Difference of distress, is, that an attachment runs not against thef rom distress. lands, while a distress does ; and the distress runs not against the body, but it may be taken by an attach- ment.^) The attachment, in the most common use of the word, is an apprehending the body of a man, to bring him to answer the action of the plaintiff. Attachments are also issued against persons guilty of a contempt of court.(e) Attornies, for injustice and base dealings with their clients, are liable to attach- ment, as well as for contempt of court, (fj Where a man is attached by his goods, they ought to be move (a) Jac. Law Die. title, Attachment. (6) Kilch. '279. Dalt. Sher. 154. (c) Bract, lib. 4. Fleta, lib. 5. cap. 24, (rf) Glan . lib. 10. (e) LilL Abr. 121. (f) Hawk. IF. 217, 21?. 76 SHERIFF, CORONER Ac CONSTABLE. attachment, ables, mere chattels personal ; nor is every chattel per- ^^ sonal at all times subject to attachment. The defend- ant's horse on which he rides, ought not to be attached, if other goods sufficient may be found. Neither are goods pawned or borrowed subject to attachment. If the goods of A. are attached as the goods of B. and in his possession, yet A. may maintain his action against the officer serving the attachment, for he must at his peril take knowledge to whom is the property of the goods. An attachment may be made by pledges, as well as by goods, viz. by the defendant's procuring pledges or sureties for his appearance in court, (g) S von bailiff A bailiff sworn and known, having a warrant to vant"^ ■»*** an attachment, may command his servant to do command his j t> all( j j( M \\[ fo e good, though the command be by wakeattacb- parol only.(/i) If an officer attach live cattle, he ment - may put them in the common pound, but chattels v ithout life, in any other place of safety.(i) If the officer attaching goods leave them in the hands of the owner, taking an obligation of him for the delivery of the goods, if he make default of appearance, such obligation is good andvalid.(j) A married woman must be attached by the goods of her husband. (/;) Ai.i i-n.Li.t The court will grant an attachment against sheriffs, l',,'',\',nux!t C ' tn$ir officer!, coroners and constables, authorized to »fec serve process, Whenever it shall appear that any such officers have been guilty of any corrupt practice, in not serving any writ ; as where they refuse to do it, (.) r>ali. Sher. 155. |4) Ibi.l. 156. (<) Ibid. (.,) Ibid. (*) ibid. 157. SHERIFF, CORONER & CONSTABLE. 77 unless paid an unreasonable gratuity from the plain- attachment, tiff, or receive a bribe from the defendant, or give <^v-^ him notice to remove his personal effects in order to prevent the service of any writ, the court which awarded it may punish such offences in such manner as shall seem proper, by attachment, &c. But if there neither appears to have been any palpable corruption in the case, nor particular obstinacy, as by disobey- ing a special rule of the court in relation to the ser- vice of such writ, nor other extraordinary circum- stance of wilful negligence, it seems not to be usual to grant an attachment in such cases, but to leave the party to his ordinary remedy against the officer, which he may have, either by serving him with rules to return the writ, &c. or by suing him for the damage sustained by his negligence, in an action of escape, or on the case, or by taking out an alias, or pluries, which if the sheriff do not execute, an attachment goes against him of course, unless he give a good ex- cuse for his not having done it. (I) So for oppressive practice in the execution of a For opprcs- writ, as for using needless force, violence and terror, Mvepractice ' in making an arrest, or breaking open doors where, by law, it is not justifiable, and there is no plausible ex- cuse for doing it, or treating persons arrested basely and inhumanly, or keeping them in custody till they consent to pay money for their deliverance, or making an arrest without due authority, as by force of a blank warrant, filled up with the name of a special bailiff by the party himself, or by a bailiff without the privity or subsequent agreement of the sheriff, at- tachments arc every day granted. But attachments of this kind are sometimes denied, in respect of the common use of the practice, which experience ha^ (/) Hawk. P. C. CI 5. 78 SHERIFF, CORONER & CONSTABLE. attachment, proved almost necessary in some cases, to prevent the v^U^ > defendant's having notice of the intended arrest. And if it appear to the court that there he any such reasonable cause, they will in a great measure ex- cuse, if not wholly dispense with it.(m) When an officer is guilty of any corrupt practice, in depriving the plaintiff of that benefit which he ought to have from the execution of his writ, such officer is liable to be punished by attachment. As if he levy the debt by virtue of an execution, and keep the money in his own hands and embezzle it. But unless there appear some gross and palpable corrup- tion inan officer by neglecting to return a writ executed by him, or to bring in the body or money, &c. according to his return, the court will hardly grant an attach- ment immediately, but rather proceed against him by rules to return the writ, &c.(?t) For contempt But where an officer attempts to impose upon the court, by knowingly making a false return, he is liable to be punished by attachment for his contempt. Yet in such case, the court will choose to leave the party injured to his remedy, by an action on the case, unless where there is some extraordinary hardship or oppression : as where an officer who had arrested one on a camas, returned that he had taken him, but that fa defendant was so sick, that he could not In ins: in his body at the day for fear of endangering his liff; when, in truth, the defendant had been all the while in good health, and was only detained nnrlcr such pretence to extort money from him, cxc.(o) (>*) Hawk. P. C.QIG. (n) Ibid. (o) Ibid. II. |17j SHERIFF, CORONER & CONSTABLE. 79 A sheriff is not liable to an attachment for not attachment, returning a writ, if not called upon by a rule of the v-*-v-^ court within six months after the expiration of 1*22^12*: office; notwithstanding he was requested by themn.t io. not party to return it before the six months had expi- J ri "["^ ess red.(p) &c - ' The sheriff returned cepi corpus to a bailable writ, in Hilary term, upon which the plaintiff proceeded no further till next Michaelmas term, when the court decided it unreasonable that the sheriff should be called upon to bring in the body after such delay, and set aside an attachment issued against him for not doing it.(q) A sheriff who is ruled on the last day of a term, to bring in the body, but goes out of office before the next term, is liable to an attachment for not bringing in the body, (r) But a sheriff ought not to be ruled to bring in the body, until the day after the day on which the rule to return the writ expires. And if he be ruled to ■bring in the body before such expiration, and be at- tached for not obeying it, the court will set aside the attachment for irregularity, (s) An attachment against the sheriff is irregular, if the rule to bring in the body issues before the time of putting in bail expires.(f) If the sheriff be once in contempt for not bringing Conten, r't not , , . ,1.1 purged t>v de- in the body, that contempt is not purged by the dc-fendant sur- rendering. (p) Term. Rep. II. 1. (?) Ibid. VI l. 452. (r) Hen. Black. I. 629. (*} Ter. Rep. V. 479. (0 Hen. Black. II. 276. 80 SHERIFF CORONER & CONSTABLE. attachment, fendant's surrendering on a subsequent day, though v^v-w before an attachment is moved for against the sheriff, (u) i When bail is put in after attaching the sheriff, and a trial has not been lost, the court will set aside the attachment ; for the plaintiff is not entitled to it as a security, in case he should recover: otherwise, if a trial has been lost.(r) Appiieationto Upon application to set aside an attachment against tachment. * the sheriff for not bringing in the body, bail having been put in and no trial lost, the court require an affidav it of the merits of such application, to come from the defendant in the cause, but not if it come bona Jide from the sheriff himself, of which fact he must make oath. But when such attachment has regularly issued, the court Avili not relieve the sheriff, if it ap- pear that he let the defendant out of custody without taking from him such bail bond as is required by statute, (m?) A rule, calling on the sheriff to return a writ is- sued in the vacation, though tested in the succeeding term, is irregular, and an attachment grounded upon it will be set aside by the court, on motion. (a?) Although an exeeption to bail has been regularly entered, and the defendant's attorney, having had verbal notice of it, proceeds to give notice of justifica- tion, and attemptsto justify, yet notice of such excep- tion niiisi h;m- hem given to make the sheriff liable to an attachment for not bringing in the body.(t/) (ii)T.-r. Krp. VIII. 29. (i) Ibi.l. IV. 352. (i<) Ibid. VII. 239. (r) Ibid. I. y>2. (y) Hen. llln< k. I. 80. SHERIFF, CORONER & CONSTABLE. 81 Notice of justification of bail is not such a waiver attachment, of the default of not giving notice of exception, as to v_^-y^ support a rule on the sheriff, to bring in the body, though it is a waiver between the plaintiff and defend- ant.^; The court will not discharge an attachment against sheriff for not the sheriff for not bringing in the body, except upon J^dy/win the payment of the whole debt, due, and costs. The not be di , s - cbaiged but sheriff will not be allowed to put himself in a better upon payment situation than the bail. He may, if he pleases, bringdtbtandcost* in the body. He ought to put the plaintiff in the same situation as if good bail were put in and jus- tified. If he do not return the writ, and is attach- ed for contempt, he must not put the plaintiff in a worse situation. The whole debt and costs, together with the costs of the application, must be paid before the attachment may be discharged.(a) After an attachment against the sheriff for not bringing in the body, he must not merely pay the sum sworn to and costs, before the court will relieve him, but he must pay the whole debt and costs. A Ji. fa. issued to the sheriff, at the suit of A. against B. On the next day another Ji. fa* issued on the suit of C. against B. A levy was made under the first writ, but notice was given to the sheriff by C. not to pay over the money to A. on the ground, that the judgment obtained by him was fraudulent. The sheriff, notwithstanding, paid the money over to A. and the officer returned the second writ with a nulla bona. On this, an attachment issued against the sheriff for not returning that writ, to which at- (z) Hen. Black. I. 106. (a) Ibid. 233. VOL. I. J "2 M SHERIFF, CORONER & CONSTABLE. attachment, tachment the sheriff put in bail, and was afterwards y^J^j examined on interrogatories. The prothonotary to whom the examination was referred, having reported that neither the contempt of the court, nor the impu- tation of fraud appeared to him to be done away, the court thereupon ordered the sheriff immediately to pay the whole debt and costs due to C. together with the costs of all the applications.^) For refusing An attachment was granted against a bailiff for dl\T, &c. a refusing to make affidavit of the service of a subpoena upon one H. L. to appear and testify before a grand jury, in order to found a motion for an attachment, for his not appearing. (c) But the court would not grant an attachment against a sheriff for neglecting to take a replevin bond, be- cause the party injured may maintain an action ; for it eosld not by any means be construed to be an abuse of the process of the court, nor a contempt, which are the sole grounds for an attachment against the shcriff.(d) coroner. An attachment was granted in the first instance a- gainst the coroners for not attaching the sheriff, against whom an attachment directed to the coroners, had issued, for bringing in the body of the defendant, pursuant to a rule of the court of common picas; and the attachment was ordered to be directed to ilisnrs named by the plaintiff, and approved by the prothonotary.(f) A rule for M attachment against the sheriff for not bringing in the body of the defendant, having been obtained on the tilth of November, but the attach - (A) Hen. Hlnck. 1. 343. (r) Work. Kep. I. 43*. (d) I. in.. Kep. 11. 617. (<•) Black. Kep. 11.911, 1218. SHERIFF, CORONER & CONSTABLE. 85 ment not sued out and served upon the sheriff until attachment, 9th of March, the court held the sheriff discharged The case was — the defendant in the original writ, was arrested in a long vacation, on a writ returnable on the first return day of the next (Michaelmas) term, and paid into the hands of the sheriff's officer the sum of £'ZQ5 and the costs. On the 6th of Novem- ber, the plaintiff ruled the sheriff to return the writ, which was complied with ; on the 13th of November he ruled the sheriff to bring in the body, which rule expired on the 17th; and this not being com- plied with, a rule was obtained for an attachment upon the 19th, but was not sued out and served until the 9th of March following. The court was of opinion, That the plaintiff had discharged the sheriff, and that therefore the attach- ment must be set aside. CfJ The court will set aside an attachment, if the affi- davit on which it was founded, merely state, that the officer of the sheriff was served with the copy of the rule to bring in the body, but does not add, that the original was shewn to hiin.Qjr) If an attachment for non payment of money to A. issue against B. and the process be committed to the hands of an officer who is not able to serve it upon B. and A. meet B. in the street, and by violence carry him to the chamber of C. A's attorney, and B. is there detained until the officer having the process of attachment is sent for, (though not by A.) and on B's leaving C's chamber, arrests him at the bottom of the stairs, the arrest is illegal, and B. must be dis- {/) Bos. & Pul. III. 151. (g) Ibid. IV. 121. 84 SHERIFF, CORONER & CONSTABLE. attachment, charged by the court. For arrests by violence lead >^A^/ to serious consequences, and must not be encour- aged, (/i) The court will not open the rule for an attachment on the mere affidavit of the party only, that he has not been served with it, unless he can also show some mistake that lias been made in the service ; as that one person has been served in the place of another.(i) On an application for an attachment against the defendant for non payment of an attorney's bill, pursuant to the master's allocatur, under the usual references, by the judge's order, the rule was objected to, because the service of it was made on Sunday. Lord Kenyon, ch. j. after adverting to the statute, and expressing an anxious wish to preserve as much as possible a strict attention to the sabbath, said, that the statute of Car. II. was equally appli- cable to the case of a service of process, as to an actual arrest, and the rule in this case was a proceed- ing within the act. The rest of the judges concern- iug the rule was discharged.fjj* i o uavw, After a summons, if the tenant or defendant do not ...av '*mic v. • to court an attachment issues; by virtue of tenant after 1 « cannon . which, the officer must go to the house or land of such tenant or defendant, take surety by pledges, or attach him by his goods, to compel him to appear ami answer to the suit. But the defendant cannot be attached by his land, nor by any part of his freehold, • Ity the statute 29. Car. "2. C. 7. «. G. it is enacted, that " No person " upon the Lord's Day, iball serve ur execute any writ, process, war- •' i. mt, order, judgment, or decree, except in cases of treason, felony, or " breach of the pcicc," &c. (h) rtos. fc Put. IV. 135, (/) Ibid. 256. (>)Tcr. Kep. Vlli. 86. SHERIFF, CORONER & CONSTABLE. 85 nor by any chattel real, nor by any table dormant, nov attachment, by any thing fastened to the freehold; as a furnace, ^-^-j wainscot, doors, windows, pales, or the like ; but attach- ment ought to be made by the defendant's own proper goods, mere chattels personal, which may be forfeited by outlawry, and which, if the defendant do not appear, will be forfeited. But the apparel of the defendant then on his body, may not be attached at all ; nor the horso on which he is riding, if he hath other goods ; but if not, such horse may be attached. (fc) The goods attached must be the proper goods of Goods attach- the defendant: and the officer making the attachment prope "^ 0o) Ibid. 86 SHERIFF, CORONER & CONSTABLE. attachment, life are attached, as pots, pans, or the like, the ^^, officer may take and carry them home to his own beputincom-i lousee ^nd it seems, that if the officer leave the ° Dp01 goods with the defendant, and take his obligation for the delivery of them, if he make default of appear- ance, the obligation will be good.(o) If an officer attaches a defendant by a chattel, and he does not appear at the day of his return, the chattel is forfeited, and the sheriff must answer for the value of it: he ought, therefore, to keep the goods attached, or take security to be saved harmless thcrcin.(p) The defendant ought always to be attached fifteen days at the least, before the return day of the writ.(g) In assize of novel desseisin and nuisance, where the original process is by attachment, the defendant may be attached by his goods. (r) For trespass For trespass done against the peace, (as for assault against pc ate. am i battery, for breaking a close, for carrying away goods, for cutting down trees, and the like,) the defendant shall be attached by pledges, or by his goods and chattels. But for trespass against the king's crown, which touches life, the defendant or delinquent must be attached by his body.(s) i pen rule to Tin- sheriff being ruled to return the writ, either return. does, or dors not retain it. If there be no return, it is a contempt <>1" t lit* court; for which the constant course of proceeding is bj attachment, whether against the (o) Halt. Shcr. 156. (I>) Ibid. ( V ) ibid. 157. (r) Ibid. 153. Ibid. 157. SHERIFF, CORONER & CONSTABLE. 87 present or late sheriff. For as to the late sheriff, he attachment, ought, in strictness, to have returned the writ before he was out of office, and therefore, the contempt was actually committed while he was a servant of the court. But the sheriff is not liable to an attach- ment before the expiration of the time allowed for putting in and perfecting the bail. And therefore if the rule to return the writ expire (as it generally does,) during that time, the plaintiff, instead of moving for an attachment, must proceed as though the sheriff had duly returned the writ.(a) The mode of proceeding against the present sheriff upon a return of cepi corpus et paratum habeo, in order to compel him to bring in the body, or put in and perfect bail above, is by rule of court: but against the late sheriff, it is by destringas, which is a judicial writ, directed to the present sheriff. In point of form, it is general or special, and should be made returnable on a certain day or general return, according to former proceedings.(ft) When bail above is put in, and notice thereof given to the plaintiff's attorney, the bail should be excepted to, and notice of the exception given to the defend- ant's attorney before the sheriff is called upon to bring in the body. But where bail above is not put in at the time of calling upon the sheriff, he must put in and perfect it at his peril, without an excep- tion.^) When the sheriff is called upon to bring in the body, he must either bring it into court, or put in and perfect bail above, within the time allowed him by (a) Tyd's Piac. 87. (6) Ibid. 87, 88. (r) Ibid. 88. S8 SHERIFF, CORONER & CONSTABLE. ArrAcnMEST, the rule or destringas. Otherwise it is a eontempt for -which he is liable to pay the debt and costs; and, in order to enforce the payment, the plaintiff on a proper affidavit, may move the court for an attach- ment, or sue out an alias destringas. The attachment is a criminal process, and lies against the present or late sheriff for not returning the writ ; but for not bringing in the body, it lies against the present sheriff only, and against the present sheriff it must be directed to coroners ; against the old sheriff, to his suc- cessor; and must be made returnable at a general return, though the original process was at a day cerlain.(d) in New -York j n f), e state of New- York, instead of the mode by ratnra. ° distringas, where the sheriff is out of office, the proceeding is by attachment; to obtain which, a rule is entered in the book of common rules, thus: " Thomas Stevens, ") r. L SUPREME COURT. " John Williams, j 5th May, 1807. " The sheriff of the city and county of New- York, w nui taring returned the writ of capias in this «• cause, ordered on motion of Mr. Sackct, on behalf m of the plaintiff, that the said sheriff peremptorily »» return the writ issued in this case, within twenty i* day's after not ice of this rule, or that an attachment * i issue against him." Of this rule it is not necessary to serve a copy, the following notice of its being entered, is all that is required: ('/) Tyd'a Prac. 88. SHERIFF, CORONER & CONSTABLE. 89 « Thomas Stevens, ") attachmint, v. V SUPREME COURT. . J^l « Joftn Williams, J " Take notice, that a rule has this day been m entered in this cause, with the clerk, in the book « of common rules in his office, that within twenty " days you return the writ issued in this cause, or " that an attachment issue against you. New- York, « the 5th day of May, 1807. « Samuel Sacket, Attorney for Plaintiff. " To William Cutting, esquire, " Sheriff of the city and county of New-Fork.' it If the sheriff do not return the writ within the time, the following affidavit is made and filed with the clerk : " John Williams, ~) ads. V SUPREME COURT. « Thomas Stevens, J " Samuel Sacket, the attorney for the plaintiff in " this cause, being duly sworn, makes oath, and saith, " That he, the deponent, did, on the last, *< (or instant,) personally serve William Cutting, esq. " sheriff of the city and county of New- York, with a «* true copy of the annexed notice, by delivering the •' same to him. And this deponent further saith, " That he hath this day searched at the office of the " clerk of this honourable court, for the return of " the writ of capias issued in this cause, but that no « such writ was then filed there. " Samuel Sacket. «< Sworn this 86th day of May, 1807, « before me, « John Keese, Com." VOL. I. f3 ytf SHERIFF, CORONER & CONSTABLE. INIJWl To this affidavit, a copy of the notice of the rule is annexed when they are filed, and the sheriff's default entered in the book of common rules, as follows, viz. «"c « Thomas Stevens, ") v. I SWREME COURT. " John Williams, J « May 26th, 1807. " On reading and filing the affidavit of Mr. Samuel " Sacket, attorney for the plaintiff, stating, that the « said Samuel Sacket did, on the fifth day of May, w instant, personally serve William Cutting, esq. « sheriff of the city and county of New-York, with •• a notice of the rule entered in this cause, on « the said . fifth day of May, ordering the said " William Cutting, to return the writ of capias issued •» in this suit, and that on due search, the same has • not been returned: ordered, on the motion of Miv •• Sacket, for the plaintiff, that the default of the " said sheriff be, and it hereby is accordingly en- " tcred 5 and further, that an attachment issue." On this, an attachment issues of course, as well in vacation, as in term, in form following, viz. "The people of the state of New-York, to the coroner of the city and county of New-York, greeting: — Wc command you, that you attach William Cutting, esq. sheriff of our said city and count > . so that you have him before our justices of our Mipremc court of judicature, at the city-hall of Ihe i itv of Albany, on the first monday of August next; to answer before our said justices, for certain teMDMMI and contempts, done and committed in our s;iid court, before our said justices; and have you thea there this writ. Witness, James Kent, c?q. SHERIFF, CORONER & CONSTABLE. 91 our chief justice, at our city of New- York, the«*»»*»«"*»i sixteenth day of May,* iu the year of our Lord, v^^-v-^ 4 onr M * Last day of 1SU7# term. The rule under which these proceedings arc had, extends to late as well as present sheriffs, mutatis mutandis.(a) On the return of the writ if there be no appear- ance endorsed, the clerk enters of course in his book the following rule : } «« Thomas Stevens, v. " John Williams, Hh May, 1807. " The sheriff of the city and county of New- York, 4i having returned the writ of capias, issued in this ** cause, cepi eorpus, ordered on motion of Mr. Sackei « for the plaintiff, that the sheriff of the city and ** county aforesaid, bring in the body, sitting the *• court, or be amerced forty shillings.' » If the plaintiff wish to compel the bringing in the body, his attorney enters in the book of common rules, the following: " The sheriff of the city and county of New- York, *< having returned the writ of capias issued in this " cause, ordered, on motion of Mr. Sacket, for the ** plaintiff, that the said sheriff bring in the body of " the defendant, within twenty days after service of " notice of this rule, or show cause, on the first day if of next term, why an attachment should not issue '* against him.' »» (a) Caines' Prac. 10, 71, 72, 73. arc 98 SHERIFF, CORONER & CONSTABLE. attachment, Oil this rule notice is served, and affidavit thereof made, as upon the rule for returning the writ : varied only in form, so as to comport with the rule. This being a rule to show cause, no default can be entered in vacation. But on motion for an attachment on the first day of the next term, the rule will be made absolute, unless by having put in, and perfected bail, or in some other way, the sheriff show good cause against it. And though the sheriff have put in one real bail, who has justified, and has filled up the bail piece, with the name of a fictitious person, as the other bail, the attachment will be granted.(d) r. Defendant. If a prisoner be admitted to defend on payment of costs, and after entering into the consent rule, keep out of the way, to avoid being served with a copy of the ca. 8(i. against the casual ejector, a rule will be granted to show cause, why an attachment should not go against him ; and service of that rule at the de- fendant's house, is sujficient.{a) ». sheriff. Where a sheriff is brought up on an attachment, the plaintiff must file his interrogatories in four days, and the sheriff must enter into a recognizance, to appear from day to day, and after having answered, may, on motion, amend, to explain an ambiguity, but not to introduce any new matter. (6) The court would not grant an attachment against the. sheriff for not bringing in the body of the defend- ant, the rule having expired, where the defendant ft -ntlered the money to the full amount, as security $ (d) Caines' Prac. T7, T8. (a) N. Y T. K. II. 368. ()>) Johns. Cm. I. 31, 32. SHERTFF, CORONER & CONSTABLE. 93 and having put in bail which was excepted to, and attachment, the plaintiff did not ask for a trial. (c) v^~r^ A sheriff is not to be considered as in contempt for not aeting on an execution which never came to his personal knowledge, nor was lodged in his office. But where a ji. fa. was delivered to a deputy, and the sheriff affirmed the receipt of it, by acting upon it, and did not return it within 40 days, nor respond any satisfactory excuse, the court fined him 20 dollars for the contempt, with costs of the rule and attach- ment, and committed him, until payment of fine and costs. (d) Where, on the non-payment of costs on a judgment T . Tenant. by default against the casual ejector in ejectment, by A. the tenant, who had entered into the consent rule, an attachment was issued to bring A. before the court to answer; and the sheriff to whom the attach- ment was issued, arrested A. but while he was in custody, was served with an order for his discharge, made by the court of common pleas, to whom A. had petitioned for a discharge, pursuant to the " Act for « the relief of debtors, with respect to the imprison- " ment of their persons," and the sheriff accord- ingly discharged A. from his custody: it was held that the order of the court of common pleas was void, as A. Avas not in custody on a conviction for a contempt, but only to answer. And that the sheriff was liable for the amount of the costs recovered against A.(e) In the state of Massachusetts, attachments wereat'nMassacim- first issued only to cause an appearance of the defend- „ property * (r) Johns. Cas. I. 412. (rf) Ibid. 137. (e) Ibid. 115. 9* SHERIFF, CORONER & CONSTABLE. attachmfkt, ant in court, aud were dissolved on such appearance, *J!£^i being duly entered in the cause. Afterwards, it* •Mac cd, person or property were attached, they were .y^ait'e. holdcn until final judgment rendered in the cause, i-dgaeot when the attachment was dissolved. At length the creditor was allowed thirty days to charge the defend- ant, or take the property attached, in execution: and if it was not done in that space, all hold by virtue of the attachment was lost. Such is the law at present, (f) rwimiBiifr I f thf body of the defendant is by any legal meansex- <, r « i . r . . dy ( . n ,j^ ei i f I>om ar rest and imprisonment generally, on ci- isexcmpt. J * ,.i vil process, or is so exempted in any particular case, or for a limited time, while his goods and estate are liable to be taken for the purpose of securing, or in satisfac- tion of the plaintiff's demand, a writ may lawfully is- sue, commanding the officer, if on mesne process, to attach the goods and estate of the defendant, and to summon him to appear before the court and answer to the plaintiff, and if on execution to take the goods or estate of the defendant to satisfy such execution, omitting to give any authority to take the body of Mich dghUft.fgJ k. poods An officer cannot attach the estate of the defendant on mesne process, alter having arrested his body on the same writ, and taken bail for his appearance at court. And if after making such arrest, and taking bail, the oAcer without giving up the bail bond, attach estate, and make return thereof, but in his return make no mention of such previous arrest, he is liable to an action for a false return. And such »-»cn. (/") M. T. II. V.<273. r) Ibid. 111. 193. SHERIFF, CORONER & CONSTABLE. 9B action lies for a third person, who had caused the same attachment, estate to be afterwards attached at his suit. The case was, an action against the sheriff for a false return. The facts were: N. B. was the owner of a share in the Hay-market theatre, and was indebted to S. S. in a considerable sum. S. S. purchased a writ, which was put into the hands of a deputy sheriff, who arrested N. B. and took bail. In a few hours after, the deputy sheriff, on the same writ, without giving up the bail bond, attached the share in the theatre. Afterwards J. B. another cred- itor, attached the same share, subsequent to the attachment of S. S. who went on with his suit, and levied his execution on the same share in the theatre. The deputy sheriff made return of S. S's writ, that he had attached the share, but took no notice of the previous arrest. J. B. having lost the benefit of his attachment, brought his action against the sheriff for a false return. The court in their directions to the jury, said it was clear, that hy law, an officer could not take both body and estate : and that when he had taken the body, the writ was functum officio, completely executed ; and no further proceedings could be had thereon by the officer, except to make his return: That the return was clearly false, as the officer, though he had returned nothing but the truth, had not returned the whole truth : and that J. B. might maintain his action for the damage by him sustained. (ft) i To constitute an attachment of goods, the officer Of goodi, how must take them into his actual possession and custody, as on seizure by execution.(i) (A) M.T.R. III. 561, !i) Ibid. V. 163, !Gi, cVr. 96 SHERIFF, CORONER k CONSTABLE. ATTieBicwrr, At common law. goods seized on a fieri facias cannot be seized by the same officer, under another writ, while held by virtue of the first; but in this state, the officer who takes goods by virtue of one writ, nrav afterwards take them by virtue of another, while held under the first; but while so in the custody of the officer who first took them, they cannot be taken bv a different officer. For the officer who attaches goods, must hold them in his actual custody; so that he alone can control the possession. They cannot, therefore, be attached at the suit of a second creditor, but by the officer who thus has them in actual possession. For he who attaches goods lawfully, must take them into his actual possession, which another officer cannot do, the first having a special property in them, by his prior attachment: and if the goods are finally sold on execution, in conse- quence of such first attachment, the officer who sold the same having no other attachment or execution in his hands, by which he had taken the goods before sold, must pay over the surplus, if any there be, to the person from vt horn such goods were taken. By different officers, is not meant different deputies of the same sheriff, for they arc all his servants; and the possession of a deputy by virtue of an attacli- iiii hi. i^ the possession of the sheriff! But if the sheriff Rrsl attach the goods, the marshal of the United States, in eonsequenee of the priority given to the United States in the collection of debts, may, by virtue of an attachment or execution in favour of the United States, seize the goods in the possession of the sher- iii'. and take them from him, and entirely defeat the attachment bj the sheriff*, ^f J (j) M. T. R, V. 273, 27*, 275. SHERIFF, CORONER & CONSTABLE. 97 Implements of husbandry used in tilling, are not attachment, within the statute exempting the tools of a debtor ^^r^j from attachment and cxecution.(fc) If goods be consigned by A. to B. an insolvent Goods con- debtor, who on notice of the consignment, imme-iiabieto* diately, while the goods are in transitu, and not received by him, disagrees to the consignment, they are not liable to be attached as his goods. For the assent of A. the consignor, must be presumed, unless in a reasonable time he declare his dissent, or neglect to give notice of his dissent. If the goods arrive before the consignor can have notice, that the con- signee has disagreed to the shipment, any person at the request of the consignee may receive and take care of them, until the consignor can have notice; and an intermediate attachment will not defeat his right.(i) If an officer on an original writ attaches property not belonging to the defendant, and judgment is recovered, and execution issued, and put into the hands of the attaching officer, with directions to levy such execution upon the property so attached, the officer may, notwithstanding, Avhere the property attached was not the property of the debtor, or if it be rescued, return nulla bona, or rescue, of the pro- perty, and take the body of the defendant, and commit the same to prison, and thereby exonerate himself from the creditor.(m) "Where an original writ is delivered to the sheriff with a special direction indorsed, « to attach suffi- cient estate, or hold to bail," perhaps he isnotholden (A) M. T. R. V. 113. (/) Ibid. 162. (m) Ibid. IV. 604. VOL. I. 14- 95 SHERIFF, CORONER & CONSTABLE. A TrAc aM EST, to look up estate : but if at the time of the delivery of J^, the writ, he be verbally directed to go immediately and attach certain chattels, describing their nature and situation, he is bound to obey such verbal direc- tion, if he lawfully can. And the creditor, if re- quired, must designate the chattels to be attached,and it" they are not in the possession of the debtor, or there be a dispute concerning the property of them, the creditor must also give the officer an indemnity for making the attachment, but need not go with him to make it.(n) "When goods or chattels arc attached, by virtue of an original writ, to secure the judgment which the plaintiff may recover, if on the appeal, judgment be rendered for the defendant, the attachment is ipso ('ado dissolved, and the sheriff can no longer retain the property attached, against the demand of the defendant, (o) When goods attached by the officer on four writs, in favour of four different plaintiffs, are replevied from the possession of such officer, by as many dif- ferent writs of replevin, sued by the same party, on each of which a bond is given to the officer, and 1m- puts then all in suit, he is entitled to his costs in cadi action. (p) in com,. In (| lt > Mate of Connecticut, the statute which !""!! .! l | , . J . y ...e'* empowers the authority signing original writs, in be .n-.i by certain eases, to direct such writs to indifferent Hiijiffeieilt • 1 1 tt r>tr»oi.. persona to icrve and return, includes writs ol attach- ment, as well as writs of summons.^/) (n) M. T. R. IV. 60, 63. (o) Id wl. 100. (p) [bid. 3 it"). fy) Root, II. 72. SHERIFF, CORONER & CONSTABLE. 99 If a writ of attachment be no otherwise served, attachment, than by its being read by a proper officer in the de- v_x-v->^ fendant's hearing, or by a true and attested copy of such M *? be serv ~ O' >> ll ed as suui- writ being left by such officer at the defendant's fl.su- mons. al place of abode, within the state, the service is good to hold the defendant to answer to the suit.(r) If on a writ of attachment, the officer attach goods Goods and and estate of the defendant, he cannot on the same writ^ "JJ BOt attach the defendant's body. The body being only liable to attachment for want of goods or estate. And though in the opinion of the officer, the goods or estate by him taken are insufficient to satisfy the plaintiff's demand, and on that account he takes the body, lie is a tres- passer ; for unless by the special direction of the plaintiff, the officer need not attach goods or estate, unless evidently sufficient, but may take the body, and return nulla bona as to goods and estate : but if the creditor direct the officer to attach the goods or estate of the defendant, of ever so little value, he is justified in not taking the body. If the officer take the goods, or estate, and body of the defendant, without any direction from the plaintiff so to do, the officer alone is liable. But if the creditor direct the officer to take both goods, or estate, and the body of the defendant, and the officer proceed ac- cordingly, they are jointly liable.(s) If goods are taken by attachment, and delivered JJJJjJ*JjU to B. who promises to redeliver them on demand, than 60 ti*y g and they are not demanded within sixty days afterj uclglnent ' final judgment in the action in which they were at- tached, B. may restore them to the original owner, and will not be liable on his promise to the officer. And if the officer hold the goods himself, and cxe- (/■) Root, IF. [30. I. 54, 128. (j) ibid. 3-56. 100 SHERIFF, CORONER & CONSTABLE. * n * chmest, cution be not issued, and the goods taken thereon within sixty days after such judgment, he ought to deliver back the goods attached to the right owner. ML brought his action against B. on a receipt, exe- cuted by the defendant to the plaintiff, as constable, for goods taken by attachment, containing a promise to redeliver said goods on demand, for the purpose of responding the judgment on the writ of attach- ment. The defendant pleaded that he held said goods, and was ready to redeliver them to the plain- tiff at all times, until the expiration of more than sixty days after judgment on said writ of attach- ment i that no demand was made for said goods, and in consequence of the premises he restored them to the original owner. On demurrer it was adjudged That goods attached cannot be holden more than sixty days after the rendering final judgment in the actiou ; and if not taken in execution within that lime, must be restored to the owner. And that no demand having been made on the defendant to re- delirer said goods, before the expiration of sixty days after rendering final judgment on said writ of attachment, it became his duty to restore the goods to the owner from whom they had been taken by said vrit of attachment : and that he would have been liable in trover if he had refused.(t) If A. receive money on an execution in favour of \\. ami endorse t In- execution, satisfied, the money lying OB the table, an ollicer, who ha* a writ of at- tach iin'iil in Ilia bands lor service against B. cannot attach the paonej bo received by A, on execution in fa\our of B. and lying pn the table, for the property (0 Kirb. 40. SHERIFF, CORONER & CONSTABLE. 101 in money accompanies possession; anil A. not having attachment, paid the money over to B. it is not liable to attach- v^- v ^' ment as his property, but remains the properly of A. until actually delivered into the possession of B.(u) And though goods be taken by attachment, and receipted by a third person, who promises to rede- liver the same to the officer on demand, the officer can maintain no aetion on such promise, if the goods be not demanded within sixty days after final judg- ment ; but if a writ of error he prayed out by the defendant in the original action, and served on the plaintiff therein, before the expiration of sixty days after such judgment, and such judgment be affirmed, the officer may make such demand at any time within the first sixty days after the rendering such original judgment, that execution can be lawfully levied upon the goods, including in such sixty days the number of days between the rendering the judg- ment on which execution may issue, and the service of the writ of error, and a sufficient number first after the determination of the writ of error to com- plete sixty days, in which execution may be taken out and served. Final judgment in an action, is a Final J ud ?- judgment on which execution may, in a course of regular proceedings, be issued ; and a writ of error is no supercedeas until served.(u) The officer who serves an attachment on real estate, Attachment must leave a true and attested copy of the writ, and a description of the estate taken, at the town clerk's office, in the town where the estate lies ; and though there may be several variations between the des- cription of the estate taken, on the copy left with (m) Root, I. 544. Crunch. I. 135. (v) Ibid. 481. 102 SHERIFF, CORONER & CONSTABLE. attachment, the town clerk, and the description on the copy left with the defendant, and between that and the return on the original writ, it will not so vitiate the seniic that the creditor will lose his hold on the Mtatoi provided the description on the copy left at ill, Imni clerk's office, so far describe the land, ih.u no mistake can happen as to what land is in- tended, (ic) , « turned. ^^^ hc must not distrain rent not due, nor corn growing ; for such corn may he destroyed by tempest : nor are arms, implements of trade, or the household goods of the defendant, to he returned as issues ; but all other moveables, as well as the profits of his lands, are to be returned. RewonaWr Though upon a distringas against the defendant, dnires* luffi tJie sheriff must return issues, (if any there be,) and a reasonable distress is sufficient. Yet, if the issues returned be ever so great, it seems the party h;is no remedy : but they must be forfeited, or the sheriff must he answerable for them. By the com- mon law the sheriff" need not return issues on a, venire facias* for jurors, nor any great issues upon any vrit of habeas corpora, or distringas jurator. And if the sheriff upon such distringas, return no issues, aud a full jury appear, it is not error, the intention of the writ being answcred.(ft) innjnV -n» If the sheriff return a juror in issues, who is not \"' T \ , ^sufficient, or hath no land, the sheriff must pay the ■""*p»> >»- IttfeM himself. And if he return issues upon a juror ■ r«. („) Bl. Com. III. 280. (h) L>»lt. Iter. MS, 450. St. N. Y. I. '209. SHERIFF, CORONER & CONSTABLE. 109 not lawfully summoned, he shall be punished. If iww twelve jurors appear, and are sworn, and the rest make default, they shall not lose their issue; hut if twelve do not appear, those who appear shall have their appearance noted, and shall save their issues ; and those who make default shall lose their issues. Yet if eight appear, and the rest make de- fault, and the plaintiff is demanded at the same time, and is nonsuit, the issues of the defaulting jurors will be saved. And if a jury appear, and after make default, they shall lose their issues.(c) When a tales is awarded, the sheriff or other offi- cer must add to their former pannel, the names of those impannelled upon the talcs.(d) The sheriff is not chargeable for issues, other than those which he has a lawful warrant to col- lect, (e) Issues returned and lost for the non-appearance of'^uesiost.are the defendant or persons impannelled, are forfeited, and must be levied by the sheriff, for which he must account. And the land of the person making de- fault, into whose soever hands it may come, stands chargeable with the issues returned and lost, as in any other case of distress infinite, ffj If the sheriff return none, or too small issues, he is liable to amercement.^) (r) Dalt. Sher. 327. (rf) Ibid. («•) Ibid. (/) Ibid 329. Salk. 1.395. (?) Ibid. 490. no SHERIFF, CORONER & CONSTABLE. VII. OUTLAWRY. otMLAwm. A ^vNis outlawed, when, by judgment of law, Wlat, audits fee is by his own default ousted of his law; oris ctMeqneaoes pia( . ed (gctra legenh and put without the protection of law, and prohibited from enjoying its privileges. Ho is then called utlegatus, or an outlaw. But as the name is derived from the practice in ancient limes of administering the oath of allegiance to eviry man of the age of twelve years, one not so sworn, was denominated an outlaw. So women not being admitted to take the oath of allegiance are not said to be outlawed, but in the language of lord Coke, are said to be ivaviat*, waived; id est, derelict*, left out, and not regarded.(a) And on this subject, so careful have courts been in regard of etymology, that if in process, a woman is said to be utlegata, it is crror.(o) An infant under the age of twelve years cannot be outlawed. (e) In the reign of Alfred, and until long after the conquest, no man could have been outlawed but for felon \ ; the punishment whereof was death. And hence it was said, that according to the common law, an outlaw had a wolf's head ; because he might be put to death by any man. But in the beginning of « lie reign of Ed. HI. it was resolved by the judges, that an outlaw might be put to death by the sheriff <>nh ; and (hat under the authority of a lawful war- ranty iintl thai it was murder for any other to kill an outlaw : and such has remained the law.(d) (<0 Co. Lit. 102. (/.) Con Dig V.650. Rol. II. SO*. ( ) « Is l. it. r28. {d) Jbid. SHERIFF, CORONER & CONSTABLE. ill Afterwards in the time of Braoton, and somewhat outlawry. earlier, process of outlawry was ordained to lie ini„ w at ases all actions of trespass, vi et armis. And now by ,the8, dilfercnt statutes of New- York, it is extended not inNew- York. only to treason,(e) but to actions of account, debt, detinue, annuity, covenant, conspiracy, and of the case; and in all aetions of replevin, after a capias in withernam is returned, that the person against whom it is issued has no goods: and in all other cases where process is issued for taking the body, if it be returned, that the person against whom such process is issued, is not to be found, as well as in actions of trespass done with force and arms. And process in the several cases may be pursued to the exigent and outlawry thereupon, (fj By statutes of Massachusetts, process of outlawry in Massachu- issues against any person charged of any offence be- setts * fore the supreme court of the state, by indictment or presentment of a grand jury ; whether the same were made before said court, or made before a court of inferior jurisdiction, and removed to the supreme court by appeal on writ of certiorari.(g) And against any constable or collector of any town, district, plantation, parish, or precinct, who shall abscond or secrete himself for the space of one month, having assessments in his hands un settled. (h) At common law, a person outlawed, forfeits his goods and chattels, and the profits of his lands, his personal chattels, immediately upon the outlawry; and his chattels real, and the profits of his lands, when found by iiiquisition.(t) (e) St. N. Y. 215. (/) Ibid. 246. (g) St. M. 76. (A) Ibid. -272. (i) SaHc. I. 395. 112 SHERIFF, CORONER & CONSTABLE. outlawry. Outlawry is either upon mesne process before, or Fading* »pon final* process after judgment, fjj When the to, and in. plaintiff will proceed to outlawry on mesne process in a civil action, after different intermediate processes for causing an appearance of the defendant have proved unsuccessful, the writ of exigent issues, di- m-ted to the sheriff of the county where the action is laid, or the defendant is supposed to dwell ; com- manding such sheriff to require such defendant from county court to county court, until he be outlawed: that is, to require such defendant at five successive county courts; if he do not appear at the last of which, the sheriff must, by himself, or his sufficient deputy, on the non-appearance of such defendant, pronounce judgment of outlawry, and return his writ if exigent to the court to which it is made returnable. After judgment in the original action, and a non tat inventus returned upon the ca. sa. an exigent immediately issues, and the proceedings thereupon had hy the sheriff, arc the same as upon an exigent on mesne process. Upon the defendant's being put in exigent, he is either taken by the sheriff, appears voluntarily, or Bftkei default. If he be taken, he cither remains in custody of the sheriff, or gives bail, &c. as up- on a common arrest, as the case may be, either upon menu op final process//;) If the defendant be neither: arrested nor appear, but makes default at Ire lueeettiTfl county courts, he is, if a man, outlawed : if a woman, waived. (I) And the judg- iii. in of outlawry heing returned by the sheriff upon (he exigent, a writ of cupius ut legatum issues, 0)Ty retake and carry him away. And an attach- ment may also be had against him.ffj If an officer, Inning | precept to arrest a man, take hold of his band held out of a window, it is an arrest; and he till. Abr. I. 90. Bal. N. P. 62. Salk. I. 79 Cro. Jac.485,486. (<) Cowp. 63, <>*. f/)5alk. 1. 79. Mod. VI. 17'. SHERIFF, CORONER & CONSTABLE. 117 may pursue and take him, &c. in the same manner arrest. as though arrested at large.(g) Arrests may be made in the night as well as by wheD. day.(/i) But arrests on civil process, made on Sunday arc void, and the party arrested may maintain false imprisonment against the officer, (i) But a prisoner who has escaped may be retaken on sunday.fjj And bail may, on Sunday, take the principal and confine him till monday, and then render him.(fe) The defendant, whose cause was put off early in the day, staid in court till five in the afternoon, to speak to his attorney, who was engaged in other causes, and at the rising of the court went with his attorney and witnesses to dine at a tavern, and during dinner was arrested : the court, on motion, dis- charged him; for by the court, such a necessary re- freshment is not such a deviation as to cancel the defendant's privilege in returning : but this is not the privilege of the person attending the court,(l) but the privilege of the court which he attends. And therefore, the allowing or not allowing the privilege is discretionary, and has been disallow- ed in collusive actions,(wi) and in vexatious ones,(?i) and when the party attended as a volunteer, and not upon proeess.(o) When a felony has actually been committed, aMaybewith- eonstable, and even a private person acting 6o7ta outwairant5n (g) Ventris, I. 306. (/<) Co. IX. 6(5. (i) Salk. 1. 78. (/) Mod. VI. 231. (A) Neb. I. 25S. (I) Black. Rep. II. 1193. (mlRastal, 76. ) (rj)Mod. XI.79. >Bl.Rep. II.?! 9. (o) Sa!k. $44. S 118 SHERIFF, CORONER & CONSTABLE. amest. jlde, and in pursuit of the offender, upon such infar- ct of feio-mation as amounts to a reasonable and probable ay, &c. ground of suspicion, may justify an arrest. And though in fact no felony has been committed, if a tollable receive such information, given him by design, and for charging with a felony, he may justify arresting the accused. (p) A ]>ersoii convicted on a penal statute, may not be arrested on Sunday for non payment of the penalty.() Wms. At>r. I. 667,668. (y) Term. Kep. I. '265. (r) Burr, III. 1 478-9. (0 Ter. Kep. I II. 79. Tidds Piac. 23. (/) J It ii mack. I 636. (tf)T«nn. Kep. IV. 37T. SHERIFF, CORONER & CONSTABLE. 119 design. And it seems that no person ought to be ^J^j arrested in any place where courts of justice arc actually in session. If a person be arrested after the writ is returnable, M*y not be the officer may not legally detain him, though fi»v??itt»reuirt- Uie shortest time, till the writ be renewed. As able. where the writ was returnable on sunday, and on monday, the next day> at eight o'clock in the morning, the defendant was arrested and detained by the officer till ten o'clock the same morning, when the writ was renewed ; it was held an unlawful arrest, and the defendant, on motion, discharged.('c) A de- fendant in a case, attending an arbitration as a witness, under a rule of court, is privileged from arrest while necessarily there, and in returning home.(w) A constable may justify an arrest, on a reasonable charge of felony, without a Warrant, although it should afterwards appear that no felony had been committed ; but the person making the charge, if unfounded, is liable to the aocuscd.(a-) A person in custody, under an attachment for non payment of costs, is in custody on civil process, and may be charged with an execution in a different aetion.(t/) The defendant having been arrested by the sheriff Nor on sun " at the suit of another plaintiff on Saturday, was discharged on the same day, the sheriff not knowing that at that time there was a detainer lodged with his («) Hen. Black. II. 29. (ic) Kast, III. 89. (*) Ter. Rep. L 358. (V) Ibid. IV. 316. 120 SHERIFF, CORONER k CONSTABLE. AtRKST. officer against him. This being afterwards discovered,. ^^^^ the defendant was arrested on sunday; baton motion was discharged out of custody, as being arrested contra- ry to the statute for the preservation of the sabbath.(z) If a defendant be taken on execution, and give the plaintiff a draft, saying it will be paid immediately, and is thereupon discharged out of custody, and the bill is dishonoured, he may be again arrested on the same execution. (a) If the plaintiff strike out of the warrant the name of the bailiff, inserted by the sheriff, and insert the name of another person, who makes the arrest, such arrest is illegal ; and the prisoner will be discharged out of custody, and the plaintiff compelled to pay costs.(tV) Until a written discharge comes from the plaintiff at whose suit the defendant is in custody, the sheriff is not called upon to search the office, to see if there are any other writs against such defendant; and then a reasonable time must be allowed for the pur- pose, and twenty four hours does not seem an unrea- sonable time.(c) If an arrest be made after the return day of the writ, the arrest is void, and the officer liable in false iiiiprisonment.(d) writ of pro- A writ of protection will not protect one who is ° n ' not lawfully entitled to it, and is of no other use (:) Ter Rep. V. 25. («) Ibid. VI. 52. (b) Ibid. 183. (c) Esp. N P. Cases. 1. 45. (vas directed to arrest the body of an administrator for a claim against the estate of his intestate, and the officer arrest the defendant, such officer is also liable to the same action, such process being void.(e) If a justice of the peace, and a constable, being informed of an affray, come to a shop where the affrayers are, and find the door locked in such a manner as to prevent their admission without break- ing the door: and the justice make demand of ad- mittance, and is refused, and, while attempting to get in. is struck by one of the affrayers; and the justice thereupon by parol, order the constable to break open the door and arrest the affrayers, and the con- stable in obedience to such parol command, break open the shop, and arrest the affrayers, the arrest 19 lawful. And in an action of trespass against the in-fur ami constable, they may plead the general issue, and give the facts in evidence in complete justification, fyj -A in.ii-4i.il of tin United Status, may be arrested in Con- ut. and committed: and why not a sheriff, in a county of wbic!> not iberifl - i to attend the legislature, are in all eases, except far treason, felony, or breach of the peace, privi- leged from arrest during their attendance at the -ion of i he legislature, and in going to, and \> -i nniing from the same.(/) >odc : Everj person or persons chosen to serve as members of iln general assembly of Rhode-Island, and their estates, are privileged from summons, arrest, attach- ment, and execution, at the suit of any private person, for any debt or damages, during the session of Ike assembly; and for three days before, and throe .G \\ officer may not break open a window or out- vJ^Xj ward door, to make an arrest on civil process, '(a) Win legal. mi t if on( . m the house, lie may break inner door*, if his entrance through the outer door was peaceable, such outward door standing open; and may break such inner door, having first demanded entrance, though the defendant be not within at the time, (b) But, if on rapping at the door, it be opened to see who is there, and the officer rush forcibly in, with a drawn sword, or other similar weapon, and make an arrest, such entry and arrest are both unlaw- ful, (c) When the outer door was a hatch door, the upper part of which was open, but the lower part bolted at top and bottom, the officer unbolted the top, and not being able to reach the bottom, leapt over, and unbolted it. and let in the others; it was ruled at nisi priiis, that the entry was lawful. In a later case, in an action for breaking and entering the plaintiff's house, it appeared, that the plaintiff's house stood in ■ -table yard, which was surrounded by a wall: there nan a hatch gate at the foot of the stairs, which led to an open gallery, from which there wire doors to the several apartments; at the top of the stairs was a door across that part of the gallery which led to the chamber where the plaintiff was: the under part of the house was in stables. The f«)Oo \ . v. Potter, 319,320. Cro. Eli/. 908. Dalt. Slier. 33?. ' nrp l. Bos. k Pol. Ill 123. noons. SHERIFF, CORONER & CONSTABLE. 127 defendant having gained admission into the yard, breaks. went up stairs, and broke open the door at the top of the stairs, and arrested the plaintiff. Lord Kenyon held, that this was the outer door of the plaintiff's house, and that the arrest was illegal. (d) Though a person has been illegally arrested, as just mentioned, yet if, while in such illegal custody-, he is fairly charged with another arrest, the last is good, if there be no fraud nor collusion, first to arrest the party unlawfully, and then to charge him with another action.(c) This privilege of a man's house extends only to the owner or occupier, and his family: but does not protect any person who flies thither; nor the goods of any person conveyed thither, to prevent a lawful execution, f^) But a person who lodges in the house, or makes it his home, is considered as the occupier, or one of the family, fgj In all eases where the king is a party, or of a criminal nature, the officer may break the door of the party, either to take him or to execute the process, if he cannot otherwise enter ; but before he enters, he ought to signify the cause of his coming, and make request to have the door opened. On a capias to compel a man to find sureties for the peace, or good behaviour, or upon a warrant from a justice of the peace for such purpose, the officer may break open the door of a dwelling house. And also upon a capias ut lagatum, or capias, for a fine in any action whatever. And upon a warrant of a justice of the peace for levying a forfeiture in execution of a jud^- (d) Esp. N. P. cases, 99. Esp. Dig. 655 (e) Black. Rep. 11. 923. (/) Co. V. 93. («) Hob, «?. 128 SHERIFF, CORONER & CONSTABLE. went or conviction for it, grounded on any statute which gives the whole or part of such forfeiture to the king, and authorizes the justice of the peace to jrive such iudirment or conviction for it. And where a forcible entry or detainer is found by inquisition, before justices of the peace ; or appears upon their \h-\\. and upon a commission of rebellion out of chancery, the sheriff or his officers may break open the doors, or house, to apprehend the party, whether it be his own or that of a stranger,- if upon Bequest such house is refused to be opened.(/i) In a writ of seizin, or habere facias 'possessionem, in ejectment., the officer may break open the door, if denied entranee.(i) If a person be arrested, and after, escapes into his house, the sheriff may break tin- door to take him: as M'liere one opened his win- dow, and the sheriff took him by the haud.fjj I fan affray be made in a house in the view or hear- ing of a constable, or those who have made an affray in his presence, fly to a house, and arc immediately sued by him. and he be not suffered to enter to suppress the affray, or to apprehend the affrayers, In- ma\ break open the doors.(fc) If the sheriff's officers enter a house, the door being open, and the o roer look them in, the sheriff may break open the deOM i(» set (hem at liberty.(l) IT an execution be directed to the sheriff, to levy die goods of A. and A's goods are in B's house, if i In- sheriff request a delivery of the goods, and they (.',) Co. V. 91. Boc, Abr. 1\ . \j\, 455. Datt. Shcr. 530— 353. (. bid (jO Mod VI. 173, 174. (O Bac Abr. IV. I ( j < in. Jac. -> SHERIFF, CORONER 6c CONSTABLE. 129 DOORS. are refused, he may justify breaking and entering break.no the house, and taking the goods.(m) And though the sheriff may not break a man's dwelling house, or out-house thereto adjoining, to execute civil proeess against him or his goods; yet the sheriff may break open the door of a barn, stand- ing at a distance from the dwelling house, without even requesting the owner to open it, in the same maimer as he may enter a close.(«) When once in a house, the sheriff may break open, not only inner doors, but also trunks and chests, to complete the execution of his writ.(o) But it seems, that before breaking trunks or chests, the officer ought to demand that they be opened.(p) Though if an officer break a house by force of a fieri facias, he will be a trespasser by the breaking, yet the execution which he shall do in the house will be good.(g) [It seems to follow of course, that the taking of the goods will be no ground of damage, but the injury to the house only.] The mere raising a window, or lifting the latch of a door, to obtain entrance into a dwelling house to make an arrest, or seize goods on civil process, is a breaking the house which cannot be justified. (r) {m) Co. V. 93. Sid. 186. (n) Sid. 189. Keb. 693. (o)Show. II. 87. ip) Cro. Eliz. 99. (q) Co. V. 93. (r)Com. Dig. III. 22?. VOL I. * 8 130 SHERIFF, CORONER & CONSTABLE. III. BAIL. ■ah. BAIL, is a French word signifying a guardian or ""what! - * gaoler, and is used in the common law for the freeing, or setting at liberty a person arrested or imprisoned upon any civil matter or criminal prosecution, on surety taken for his appearance, at a day and place why so call- certain. (a) It is called bail, because thereby the ed - party is delivered into the keeping of those who bind themselves for his forthcoming: and the end of bail is to satisfy the judgment and costs, or render the defendant to prison. A man bailed, is when one arrested, or in prison, is delivered to others, as his bail, who ought to keep him to be ready to appear at the time as- signed, or otherwise, to answer for him : the bail may, therefore, keep the person committed to them in their own custody, for their own safety.(o) Or, if they permit him to go at large, they may resieze and bring him before a justice of the peace, to lind new bail, or be committed to prison.(c) Martbeukea j n personal actions, the sheriff or other officer .11 |.tlvj|..ll wmm. making an arrest must take bail of sufficient surety or sureties, if offered, by obligation, in a reasonable Mim. to himself by his name of office, and not to his under sheriff or deputy, for the appearance of the defendant at the return of the process.(d) * * Dy the statute of 23. H. VI. c 10. sheriffs, under sheriffs, and other uflkiri., muM let to bail all persons, by them arrested, or in their ustody, by force of any writ, bill, or warrant, in any Personal action ; («) Ilract. lib. 3. tract 2. chap. 8. (b) Inst. IV. 178, 179. (<■) Hale, I'. C. II. I'27. l 7 » ■ tuw. utlagatum, the sheriff may not return a rescous ; and if he make such return, it will be no justification, except in the solitary cases of rescue by public enemies. And if a prisoner in execution, escape from the custody of the sheriff, he is liable to the plaintiff for the amount for which such prisoner was committed; and is also subject to a public prose- cution.^*) Nor on exe- So if an officer seize goods upon execution, and cation. _ * and they arc afterwards taken away by a stranger, the officer may not return a rescue ; for, by virtue of the seizure on execution, such officer has a pro- perty in the goods, and may maintain trover or trespass for them; and the party injured may have his action against the trespasser. By a return of rescue of goods, seized on execution, the officer subjects himself to an amercement by the court; and the party at whose suit the execution issued, may in an action, recover of him the value of the goods. (I) pi.int.fr* re- I" rescue on mesne process, the plaintiff has his mtd 5- remedy against the rescuers only •(«•) but in case of rest ne on execution, the party may take such remedy, either against the rescuer or against the sheriff; and (j) Esp. Dig. 514, and t lie cases cited. (*) Cro. Jar. 419. (/) »;»<■. Abr. IV. 396, 397. Cro. Elil. 639. Show. 180. (m) Cro. Kits. 8o8. Cro. .lac. 419,486. ttul. 111.208. SHERIFF, CORONER & CONSTABLE. 14S if he recover his damages from the rescuers, the *««ous. sheriff may plead such recovery in bar of an action against him for the esoape ; and if the party take his remedy against the sheriff, he has his remedy over against the rescuers. (n) Rescous on criminal process, is the forcibly free* ing another from arrest.(o) The sheriff's return, that the prisoner is rescued, is not a sufficient ground to arraign the rescuer.(p) A sheriff's return of a rescous, without shewing the year and day on which the rescous was made, is insufficicnt.(g) If the sheriff on a capias awarded, arrest a man for felony, he cannot make rescue, though innocent otherwise, if the sheriff arrest without warrant, on his general authority.(r) If a felon be attaint, and be carried to execution, and be rescued from the sheriff, the sheriff is punish- able, notwithstanding the rescue; for there being judgment given, the sheriff ought to have taken with him sufficient power to have prevented the res- cue.^) (») Cro. Car. 199. Bac. Abr. IV. 399. (o) Hawk. P. C. II. 209. H. P. C. I. 606. O0 Ibid. (g) Ibid. 33. (r) Co. Lit. 161. (s) H. P. C. 11. 602. VOL. I. 2ft- lib SHERIFF, CORONER & CONSTABLE. V. COMMITMENT. comm.tmem. COMMITMENT is the sending a person to prison ^wEtT* l>y warrant, writ, or order, issued by some court, judge, justiee, magistrate, or other officer, who, by the law of the state, had authority to do it : which Authority for. warrant must be under the hand and seal * of the person by whom it is made, and expressing his office or authority, and the time and place at which it is made ; and be directed to the gaoler or keeper of the prison : and must set forth the crime or cause of commitment with convenient certainty ; otherwise the officer, if he suffer the party to escape, is not punishable. And every mittimus must also con- clude, that the party be safely kept until he be delivered, by order of law, or by due course of law, or to the like effect. And if the party be com- mitted for want of bail, the conclusion may be, that he be kept until he find bail; but a commitment, until the person who makes it shall take further order, is not good ; and the party committed by such, or any other irregular mittimus may be bail- ed.(o) If the commitment be by execution in a ci\U action, the conclusion must be, that he be kept until payment of the sum or sums for which he is thus in execution. (ft) A commitment founded on a particular statute, ought to be conformable to the method prescribed by such statute: as when the church wardens of Northampton were committed ou the i3d. Eliz. cap. 2. and the warrant concluded * The eeal is not necessary in Connecticut. {a) Hawk. H, lbj, 13G. Bac. Abr. I. 180, 181. H. P. C. II. 122. Hum. I, 318, ;i49. (/-) Inst. II, 46. Born, Just. III. 209. SHERIFF, CORONER & CONSTABLE. 147 in the common form, viz. until they be duly dis- commitment, charged according to law : but the statute appoint- ing, that the party should there remain until he should account; fop want of such conclusion, they were discharged.(c) The defendant was brought up by habeas corpus, having been committed by two justices upon the 17th. G. II. c. 5 & 7, for running away, and leaving his wife and children to be maintained by the parish. It was objected to the commitment — 1st. That the prisoner was not convieted ; 2d. That it was not alleged that his wife and children were chargeable to the parish ; and 3d. That he was not committed for any limited time, but till he shall he discharged according to the laws and customs of this realm, instead of the direction of the statute, which is, " there to remain until the next general « quarter sessions, or for any less time, as such *« justice or justices shall think proper." Lord 3Iansfield observed, that the 2d. and 3d. objections were sufficient to invalidate the commitment. (d) A warrant of commitment must be certain, and Wan-ant of ,i •.. . , • i_ . . r> must be cer- not in the disjunctive; as where in a warrant lor t , in commitment, the person to be committed was des- cribed as " an apprentice or servant ;" and the cause of his commitment, « for disobeying his indentures " or articles ;" the warrant was considered insuffi- cient.(e) A warrant expressing the cause of com- mitment "for treasonable practices" where, by the statute on which it was founded, it was enacted, that •'« every person or persons that are, or shall be im- (c) Carth. 152, 153. Bac. Abr. 1S1. Burn. I. 34?. (d) Bur. III. 1636. (e) \V m , Abr. II. 56i. CaM. 2f5. 1±8 SHERIFF, CORONER & CONSTABLE. commitment. « prisoned, kc. by warrant, &c. for high treason, " suspicion of treason, or treasonable practices," was held good, ff J But a warrant of commitment in execution after conviction, must show before whom the conviction was, and the authority to con- vict. For where the return did not add any name subscribed at the bottom of the commitment, though the name of J. F. was set in the margin over the place of the seal, and it was only said in said war- rant, " brought before me, by, &c. and convicted " upon the oath, &c. for being loose, idle and disor- " derly persons, of evil name, and common night " walkers, against the statute, &c." Lord Mans- field, (after the case had been argued,) observed that this was a conviction, and it ought to be shown, that the person convicting, had authority to convict. It is a commitment in execution, and the authority of the person committing, ought to be shown, but here it does not even appear by whom they were convieted ; it is only said in the warrant, ** brought ** before me and convicted ;" the not showing before whom they were convicted is a gross defect. Let them be discharged. (g) When a statute authorizes a commitment after conviction only, the words, « charged befoM me, the said justice, upon the oath ** of, Ace. for being a rogue and vagabond, within the ** intent and meaning of an act, entitled, &c." with- out otherwise stating a conviction, arc insufii- rirnt, and the warrant bad.(/i) When the words of a statute M whiclia warranto!" commitment is founded are, •• apprehended having upon them any picklock, «< flee, frith an intent to break and enter any dwelling '* house, \c." in the warrant of commitment it must (f) Term. Rep. VII. 736. ... v. a • r in Rep. IV -2-20. VI. 509. SHERIFF, CORONER & CONSTABLE. &g be clearly stated, that the defendant was apprehended commitment. with implements of house breaking upon him at the time of such apprehension.(i) If a statute inflict a penalty fop the performance of any prohihited act, and then declare the penalty, when incurred, by any delinquent, to he payable forthwith on conviction : and in case the person con- victed, shall refuse or neglect to pay the same, or to give security for the payment thereof, the justice before whom the conviction is had, shall, by warrant under his hand and seal, cause the same to be levied by distress and sale of the defendant's goods, &c. and then proceeds, « and it shall and may be lawful "for such justice, to order sucli offender to he dc- " tabled in safe custody until return may conveni- «« entlybe had, and made to such warrant ; unless the "parly so convicted, shall give security for his ap- " pearance," &c. , But if upon such return, no suffi- cient distress can be bad, then, and in such case, the said justice shall, and may commit such offend- er, the justice may legally authorize by parol, a constable or other officer, to detain the delinquent, in custody, until the return of the warrant of dis- tress. And the officer so detaining such delinquent, will not be liable to false imprisonment for want of a written warran t.fjj Commitments on warrant or order of court, ought to be to the common gaol.(fc) And if for felony, must express what kind of felony, and against whom committed ; as for the death of J. S. or breaking the house of J. N. or stealing the goods of J. JB.(T) (>') Term. Rep. VIII. 26. (/) Hist. Vii. 533. {k)H. P. C. I!. 121. 1. 535. (0 Ibid, 122. 150 SHERIFF, CORONER & CONSTABLE. commitment. Though a commitment by a magistrate, ought to be under his hand and seal, yet a commitment by order of a court of record, without such warrant, is sufficient, for the record itself, or the memorial thereof, which may at any time be entered of record, will protect the gaoler from false imprisonment, to which he is liable for an unlawful detention. (in) And if the conclusion to a warrant of commit- ment for felony be irregular, the warrant is not thereby rendered void, for the law will reject that as surplusage, and let the rest stand ; and if the gaoler suffer an escape of a person committed under such warrant, such gaoler will, notwithstanding the irregular conclusion, be liable for the escape ; and in false imprisonment, for detaining a prisoner by virtue of such warrant, it will be sufficient to justify the gaoler. (;; ) An omission to specify the kind of felony in the warrant, seems not to render it absolutely void, so as to subject the gaoler in an action of false impri- sonment ; but he need not receive a prisoner on such warrant. Yet if he do receive him, and is acquaint- ed what the crime is, and suffer the prisoner to es- cape, it is felony.(o) When a man is committed for any crime, either at common law, or created by statute, for which he is punislr.ible, by indictment; then he must be iwillltinl f ffl discharged 61/ due course of law; but when the commitment is in pursuance of a special authority, the terms of the commitment must be ipcifilll. Mid exactly pursue that authority. As (m) II. P. C. I. 583, 594. (n) Ibi.l. 584. (u) Ibid. 58;, 585. SHERIFF, CORONER & CONSTABLE. 151 where the statute directs that he be committed till commitment. he gives a satisfactory account of himself to the justice who commits him ; or, till he makes proof of his innocence before the said justice ; or, till he gives or finds security not to he guilty of any of the offences aforesaid ,* then the statute must be pursued in the warrant of commitment, and a commitment till discharged by due course of law, will be bad.(j») "Where by a statute, a prisoner committed to gaol is entitled to a copy of the warrant, or order of commitment within a limited time after demand thereof, in writing, such demand ought to be made upon and delivered to the officer, who, for the time being, has the custody of the gaol ; and delivery of sueh demand to, or service thereof, made upon the turnkey, is not sufficient to support an action against the gaoler, for non delivery of such copy.(j) (p) Bl. Rep. II. 805. (y) Bos. & Pul. II. 530. 152 SHERIFF, CORONER 6c CONSTABLE. VI. ESCAPE. escape. ESCAPE, from the French eschapper, to fly from, V ^TJ^' signifies a violent or private evasion out of some law- ful restraint ; as where a person arrested or impri- soned, gets away before delivered by due course of law.(a) 1 \ .in..- Escapes are either voluntary or negligent: volun- S.° r '' tia-y escapes arc such as arc by express consent of the keeper, after which he can never retake his prisoner :(6) (though the plaintiff may take him at any time.) but the sheriff must answer for the debt. Negligent escapes, are where the prisoner escapes without his keeper's knowledge or consent; and then, upon fresh pursuit the defendant may be retaken, and the sheriff will be excused if he has him again before any action brought against, him for the es- cape, (c) The sheriff is answerable for the gaoler in civil cases only : the gaoler alone is punishable criminally for escapes; and he for such only, as are voluntary, except by line.(d) sheriff not rpj l(> B ij CP jfr eanaot be charged with an escape be- cna ■ ° >ar fane he has the party in actual custody by a legal M.^'iy.' ' ority. Rut if A. be arrested, and in the actual custody of the Bhcriff', and afterwards another writhe delivered to him at the suit of B. upon the delivery of : A. !»;. construction of law, is immediately in custody on li's writ, without an actual arrest ; and if Ik i -'A-apc, 1). may maintain his action for such (a) Stand. P. C cap. 26, 27. (/.) Co. HI. 52. (.) Bl. Com in 415. (,/) Hawk. II, 227. Salk. 272. SHERIFF, CORONER & CONSTABLE. 153 escape against the sheriff*, in the same manner as escape. if he were in custody on B's writ only.(e) If the sheriff marry a woman in his custody, on execution, it is an escape of the woman : and if a sheriff* be committed in execution to the gaol whereof he is keeper, before the prisoners are secured, it is an escape of all the prisoners. (f J If the sheriff* suffer a person arrested on mesne^n mesne j I • -»• VI j. „• process how process, to escape, he is liable to an action at com-f ar s i iei iit is mon law for damages thereby sustained, by the 1,able ' plaintiff. But if the sheriff arrest a person on mesne process, and he be rescued by A. B. he may return the rescue, Avhich will be good; and no action of escape lies against him after such return; for, though the sheriff may, he is not obliged to raise the power of the county. But after an arrest on execution, a sheriff* may not return a rescue ; for in that case he j» obliged to raise the power of the county, and may not return that he cannot do execution. (g) No action will lie against the sheriff for an es- cape of a prisoner committed on mesne process, if the plaintiff cannot prove any debt against such pri- soner, not even for nominal damage s.(/t) If after judgment, and before any charge in execution, the prisoner be rescued, >vhen brought out on habeas corpus, it is not a sufficient excuse foi' the sheriff in an action of escape, (i) If A. permit a voluntary escape, and quit his office to B. or it descends to him, to whom the pris- oner returns ; B. ought to detain him, otherwise it will be an escape in him ; and an action will lie (. C. 111. i5f SHERIFF, CORONER & CONSTABLE. tscArz. which are against any prisoner, by word only, or by some note in writing, under the old sheriff's hand, or nndcr the hand of his under sheriff, and not by indenture, and the new sheriff agree to accept such notice, it seems sufficient : otherwise it must be by indenture. («) If the sheriff die during his term of office, the new sheriff, as soon as appointed, must take notice of all the prisoners in custody, and of Hi*' several executions with which they are charged, at his peril, (t) If a gaoler who is the sheriff's ser- vant, suffer a prisoner to escape, the action must be brought against the sheriff, and not against the gaolei-.(!j) So if the sheriff's deputy make an arrest, and suffer the party to escape, the remedy is against -lieriff.(r) But no action lies against the exe- cutor or administrator of a person who suffers an escape, it being a personal tort, and within the rule that a personal action dies with the person.(w) If a gaoler bail a person not bailable, it is an es- cape.^-) An action for escape lies, if the prisoner be permitted to go at large, be the distance ever so .small, or the time ever so short. (y) If the gaoler make a prisoner in execution turnkey, and he go out on an errand, and return, it is an escape.^) There can be no escape where the party never Wif in ciMim!; : as, if the old sheriff do not deli- re? <»\. Cro. Jac. .538. (.<) Bac \h. m, Co, lit. 72. (a) Mud. II. I .'!. <'•' v. B9. (.1) Bsc. .\ in. 11. •>>,. and ca*os tbere c jted (y) Dak. glur, (a) Com. Dig, III. ISJ. ikn. Block. I!. 105. ibid. SHERIFF, CORONER & CONSTABLE. 157 Jf a prisoner go out of prison by reason of a sudden fire in the goal, occasioned by lightning, it is not an escape ; nor if the gaol be broken by public ene- mies ; nor if the prisoner be rescued upon mesne process before he was in gaol, though the rescous be not returned ; or if it be, if the defendant be retaken on fresh suit, before action commenced for 1 he escape. And though the fresh suit was not com- menced till a day and a night after the escape ; and (hough not retaken till the prisoner has fled out of sight, and into another county : and though, not in fact, retaken till seven years after; if it be done, on fresh pursuit. Nor if the prisoner go out with the consent of the creditor, and that by parol.(i) But fresh suit is no plea where the escape is voluntary in the sheriff, nor after action brought ; though before plea or declaration filed. (c) If a prisoner escape by negligence of the sheriff, he may retake him, or may have an action on the case against him, as well before an action or recovery against the sheriff, as after. And that, though the party acknowledge satis- faction upon record, if he do not show specially how satisfied. (d) If a prisoner escape, and after- wards return to prison, the plaintiff may admit him in execution, though he has remedy against the sheriff; or he may take him by a new execution, if the first be not returned and filed : he may re- take him in all cases of negligent escape, for the sheriff may be insufficient. Also if the escape were voluntary by the gaoler, but without the plaintiff's consent. If a prisoner be dismissed on a wrongful audita querela, he may be retaken, and shall be in execution. (e) But if the sheriff suffer a voluntary cs- (b) Com. Dig. III. ia4. Ken. Black. II. 108. (c) Ibid. (d) Ibid. 155. (e) Ibid. Johnson's cases, 11.3. 158 SHERIFF, CORONER & CONSTABLE. escape, cape, he cannot maintain an action against the prison- V- ^ v ~ w ' er, nor retake hi in ; and if such escape was with con- sent of the plaintiff, precedent to the escape, he cannot retake him: otherwise, if subsequent. (/J If a defendant, taken in execution, be afterwards seen at large, for any, the shortest time, even be- fore the return of the writ, an action of debt lies against the sheriff, to recover the Avhole debt and damages.Qr) If a sheriff's officer, having taken a prisoner in execution, on the 27th of September, carries him to a lock-up house ; and on the se- cond of October, permits him to go in company with one of his followers to his own house, for the purpose of settling his affairs : and on the 3d the prisoner is seen riding out at large in a chaise- cart, attended by the same person, all before he takes him to prison, it is an escape.(/i) And an action of debt will lie against a gaoler for the es- cape of a prisoner in execution ; though without the knowledge of, and without any fault whatever, on the part of the gaoler ; who can, in such case, avail himself of nothing but the act of God, or of public enemies, as an excuse.(i) Art.on for a j action for a voluntary escape, the case was, voluntary et* * M <»i» that a hahcus corpus was issued from the court of common pleas, r treason ; without waiting for the conviction of the principal offender. But no one is punishable in this degree for a voluntary escape, but the person only, who is actually guilty of it : so ik.. i the principal gaoler is only finable for a volun- tary escape suffered by his deputy : for no one shall flfer capitally for the crime of a>H:liicr.(e) •cnt cs- The sheriff is equally liable for a negligent escape u ~ suffered bv his deputy, as for one suffered bv himself, for. And the court maj charge either the sheriff, or his deputy gaoler, for such an escape. And if the de- puty gaoler he not sufficient to answer a negligent escape, his principal mast answer for h\m.([fj r '. P. C. II. 204, 205. H. P. C. I. 891. Ibid II. P. C. I. 937, 597, 59S. II. P. C. II. 254. I Hawk. I'. '. II. ?^f II. p. C. I. 597, 60i. Salk. 872. SHERIFF, CORONER & CONSTABLE. 165 Whenever a person is found guilty upon an indict- escape. mcnt or presentment of a negligent escape of a criminal actually in his custody, he ought to he fined in a sum certain. But where the sheriff, having re- turned cepi corpus, on a capias, against a man on ai: indictment for a felony, docs not bring him in at the day, he is usually amerced, not fined, fgj By the common law, the penalty for suffering the Penalty by ... « . . .common law- negligent escape ol a person convicted, was of course, as it seems, £100 ; and for suffering such es- cape of a person indicted, and not convicted, was fj>. But if the person escaping Mere not convicted, nor indicted, it seems that it waa left to the discre- tion of the court, to assess such reasonable forfcit- u re, as to them seemed proper, and if the party had twice escaped, the penalties were to be doubled ; but the forfeiture was no greater for suffering a prisoner committed on two several accusations to escape, than if he had been committed on but one.(/i) In the state of New-York : in an action for an es- in New- York. cape and false return on mesne process, the plaintiff can recover no more than he might have done in the original action ; nor ought he to recover more than he has actually lost in consequence of the es- cape, though the sheriff's return was, at the time of making it, known by him to be false. The true question is — What has the plaintiff lost in conse- quence of the escape ? And the solvency of the pris- oner, or his capacity to pay, must determine the amount of damages sustained, (a) (g)' Hawk. P. C. II. 206. (/;) Ibid. 206. II. P. C. I. 604. (a) ,Johns. Rep. I. 21 5. 166 SHERIFF, CORONER & CONSTABLE. rscip*. If the sheriff hate the bodv of the defendant after OH arrest on mesne process, at the return day of the writ, it is sufficient. But if the defendant escape at any time thereafter, the sheriff is liable to an ac- tion : nor is it material whether, the escape be vo- luntary or negligent, for the sheriff is equally liable in the one case as in the other ,• but it being for an escape on mesne process, the damages arc uncer- tain, and may amount to the whole or but a part of the plaintiff's demand, according to the evidence in the particular case. (b) If a constable arrest a defendant, on a warrant issued by a justice of the peace, and after the ar- rest, the constable permit him, upon his promise to return, to go home and come on again ; and on his way home, meet lie a deputy sheriff, and goes back with him. and the deputy sheriff arrest the defend- ant, and take him to prison on a criminal process, so that the constable cannot have him before the justice on the warrant upon which the defendant was first arrested ; it is a voluntary escape in the eon>table, for which he is liablc.(e) In an aelion for the escape of one A. A. after judgment against him, and after he had been surren- dered In his hail, hut before he had been charged in execution, the declaration was, in debt for the amount tf the judgment. Previous to the surrender, a 0Mb $tU had heeii issued on the judgment, and re- turned non est inventus. By the court — The action is misconceived. Under the statute debt for an escape) li"s only where the prisoner is in execution; •md under our lav>, a person is not in cxecution r (>l) John.-: Rrp. V. 18?. M lbi. Co. X. 100. (/) John?. Rep. II. 4->4. i66 SHERIFF, CORONER & CONSTABLE. escape, the last escape : but having made an election to take his remedy against one, he is barred of any action against the othcr.fgj Where a defendant is taken in execution, and the sheriff voluntarily suffers him to escape, he may not afterwards retake or detain him, without a new authority from the plaintiff: and until the plaintiff pas notice of the escape, it cannot be presumed that he will elect to detain him if returned into custody, and the sheriff is liable for an escape notwith- standing such return. (/i) A former sheriff will not be ordered after a lapse of live years, to amend his return according to the truth of the case, by stating that the defendant had es- seaped from prison, if it was at a time when others forcibly out ; broke and the only object of the amend- ment, is to enable the plaintiff to recover from the sheriff the whole amount of his debt, when, if the person had not escaped, the plaintiff never would have recovered one cent. And when the plaintiff, by an action for a false return, may obtain ample justu-e.(i) An information will not lie against the sheriff for the penalty of 1250 dollars, given by the 22d section pf ilte act concerning sheriffs, for false swearing, on a plea of retaking and fresh pursuit; if it ap- pear that the prisoner had before broken his bonds, am! an action brought by the party grieved, be j' nding against him for the escape. fJJ J'ohn*. Rep. VI. 469. Lev. II. 109, 162. Ventii?, I. 2*60 • ubi . < • II Com. Dig. 111. 185. . \ . T. 11. I. SHERIFF, CORONER & CONSTABLE. 16V , If a prisoner, in execution, having given security to the sheriff for the liberties of the prison, and is in custody within the limits, go beyond, and with- out such limits, on Sundays; but returns in the evening, it is an escape in the sheriff, although he has no power to restrain the prisoner after he has given the security required by the statute. Nor does the prisoner's voluntary return, before action brought, purge the escape : but the sheriff is liable to the plaintiff, and must resort to his bond for indem- nity.^*) Nor docs the statute, making prison bonds assignable, compel the plaintiff to take his remedy on the bond. But on his neglect or refusal so to do, the court may after judgment against the sheriff, stay all proceedings thereon, until the sheriff has had a reasonable time to indemnify himself from the bond.(t) If a defendant in execution, admitted to the li- berties of the gaol, walk beyond the limits knowing- ly and voluntarily; on pretence of avoiding a snow bank, which obstructs his usual walk, it is an es- cape. And it would be most inconvenient and liable to every imposition, and go in a great measure to defeat the law of imprisonment for debt, if a ques- tion of convenience merely, might determine whether a voluntary and wilful departure from the limits is, or is not, an escape. And if the limits are vaguely denned, without posts or other visible marks pre- scribed by the statute, that will not justify an es- cape. The sheriff is not bound to take a bond until the limits are defined according to law r ; and if he does, and suffers the prisoner to go at large, it is at his peril. The creditor has nothing to do with ESCAPE. (/.) Johns. Rep. IV. 45. (0 St. N. Y. V. 509. Johns. Rep. V. 857. VOL. I. 170 SHERIFF, CORONER k CONSTABLE. escape, the liberties in making out his action. It is enough for him 10 show the judgment and execution, and the prisoner taken and at large without the walls of the prison. It lies with the sheriff to justify the prisoners being at large, by showing liberties estab- lished, and defined according to law : and if he docs not, he fails in making out his defence : and if the prisoner go but sixteen feet beyond the limits and return within an hour it is an escape, and if Ike passing over the limits was a mere inadvertence, and without any intention to escape, the place where, being within the reputed limits: yet, if an action be brought before a return within the true limits the sheriff is liable. And in an action for the es- cape, the sheriff cannot take advantage of a vari- ance between the amount of judgment and the sum expressed in the execution on which the prisoner was committed ; such erroneous process is sufficient for him, and stands good until the party avoids it by error.(m) When an action is brought against a sheriff for an escape of a prisoner, upon the limits, having given security for the liberties of the prison, the court will stay execution upon the judgment, to give iLc sheriff a reasonable time to sue on the bond taken for the gaol liberties. And the sheriff is not liable to pay interest to the plaintiff during the lime i he proceedings are so stayed. (w) Asheriff may permit a prisoner in execution, thepri- rHogB of the gaol liberties, without having security, and if the prisoner without his knowledge go beyond (he limits, but returns again before suit brought, the (m) Jofam. Kcp. V. 89—101. (•;) Ibid. 3*7. SHERIFF, CORONER & CONSTABLE. 171 sheriff is not liable for an escape. The liberties of escape. the gaol arc considered as an extension of the Avails of the prison ; and a return within them, a return within the gaol. And if the sheriff take no bond or security from the prisoner, for his enjoyment of the liberties, and he escape, the sheriff may retake him in the same manner as though he had escaped from within the Avails of the prison. And a volun- tary return of the prisoner is equivalent to a re- taking ; which purges a negligent escape. The pris- oners in execution, are in prison Avhile on the limits :f and if guilty of an escape, and no bonds have been given, the sheriff's right of recaption is in full ferce.(o) In the state of Massachusetts : If a debtor com- mitted upon original process, escape through the negligence of the gaoler, or insufficiency of the prison ; the jury in an action on the case for such escape, are not obliged to find for the plaintiff his Avhole debt. But the sheriff is ansAverable to the creditor, who shall recover according to the damages he has sustained. And if the escape hap- pen through the insufficiency of the gaol, though the sheriff is immediately answerable to the creditor for actual damages sustained, he has his remedy over against the county; Avhich must look to the prisoner for their indemnity. (p) If the sheriff permit a debtor who has been sur- rendered by his bail in a civil action, and by the court committed to the custody of the sheriff, to go t See past Massachusetts, the same point adjudged and held art escape. (o) Johns. Rep. VI. 121. (/>)M.T. R. II. 31G. M.St. Feby. 01,1785. 173 SHERIFF, CORONER & CONSTABLE. i cafe, at large, before the expiration of thirty (lays, he is chargeable for an eseape, although he was not furnished with a copy of the order of court com- mitting such debtor ; for it is the duty of the sheriff to procure a copy of the order of court for taking the debtor into custody. The case of commitment of a debtor surrendered by his bail, does not differ in principle from cases where a prisoner charged with an offence, comes into court on a recognizance, and, after conviction is sentenced to imprisonment. Both are legal commitments, and the sheriff is obliged immediately to obey the order of court, and to commit the prisoner. The prisoner knows for what cause, and by whom he is committed, and may at any time have a copy of the record. And the sheriff, if called upon to justify the imprisonment, or to certify the cause of it, may have access to the same record ; a copy of which the clerk will give him, ex oJficio.Qj) The direction of the statute, that the sureties in a bond for the liberty of the gaol yard, shall be approved by two justices, is given to prevent oppres- sion in the creditor, by his refusing the bond, when the sureties are sufficient. If therefore, he does not allege the insufficiency of the sureties, but is satisfied with them, and agrees to take the bond, the intent of the statute is complied with ,• and there is no necessity for the approbation of the sureties by the justices, to entitle the prisoner to the pri- vileges and liberty granted by the statute,- or to indemnify the sheriff for allowing them. And if a prisoner for debt, having given such bond to obtain an easement from close imprisonment, be found in the night time, voluntarily without any apartment, (?) M. T. ft. II. 549. ESCAPE. SHERIFF, CORONER & CONSTABLE. 17S in, or belonging to the prison, and in the yard appur- tenant to the gaol : both upon the principles of the common law,f and upon the construction of our own statutes, it is an escape within the true intent of the condition of the bond. And in an action on such bond, the court will enter judgment for the penalty of the bond, without interest.(r) To constitute an escape within the intent of a bond, for the liberties of the prison, there must be some agency of the debtor employed ; and a con- veying him out of the limits of the prison, he not consenting, is no escape, if he return as soon as he has ability. If any force, other than that of an enemy, break open the gaol, and a prisoner, avail himself of the breach to leave the prison, or suffer himself to be rescued, it is an escape ; but if carri- ed away by violence, he returns as soon as the force ceases, it is not clear that at law it is an escape. And if a debtor, who has entitled himself to the liberty of the gaol yard, by giving bond, be forcibly carried without the limits, and returns as soon as the force ceases, perhaps it is not a breach within the true intent of the bond. If he be visited by sud- den sick riess, so extreme that he is carried to an ad- joining house, without any agency or direction of his own, but by the humanity of others, that is no escape, if he returns as soon as he has reason and strength. And if he die of such sickness, while thus removed, the bond is saved. It happened by the providence of God, which hurts no man.(s) ■f See ante in New- York, where the limits are at common law con- sidered but an extension of the walls of the prison. rv ^' the body of the debtor, who is a deputy sheriff, and keeper of the gaol, and carry the prisoner to the gaol house, (the sheriff being absent on his own private business,) and leave a copy of the precept in the house with such prisoner, the coroner has per- formed his duty, and is not liable to the creditor for an escape, nor in any other way. But the facts constitute an escape committed by the sheriff, for which he must answer ; because he has no person at the gaol authorized to receive and confine the prisoner, (t) in Connect!- in the state of Connecticut: If an officer who has ' arrested a defendant on civil process, take bail ap- parently good and sufficient, at the time of taking the same ; and the defendant fails to appear and plead to such action, and judgment is rendered on default therein, and execution issues, and is committed to the hands of the same officer, who returns noil est inventus thereon ; such officer is not liable for an escape, nor for taking insufficient bail; though the surety, after executing the bail bond and before the return of the execution against the principal, become wholly insufficicnt.(u) If a prisoner in execution escape from the officer through his negligence, he may retake him: but if fhe escape were voluntary in the officer, he cannot retake his prisoner: but in either case, the creditor may retake his debtor on an alias execution on the same judgment; for the creditor is not obliged in such ease to accept the officer for his debtor. But if the officer collect the money, or take the goods and (/) M. T. R. V. 310 — 312. («) Root, 1. 5-i. SHERIFF, CORONER & CONSTABLE. 175 chattels of the debtor, it is otherwise; for the ^£Zj debtor having been compelled to pay the money, or to turn out his goods to the creditor's officer, such debtor is discharged, if the goods taken are sufficient to satisfy the execution : and the creditor must look to the officer only.(i?) If a person prosecuted for the maintenance of a bastard child, be arrested, and afterwards escape, and the officer return his warrant, he may afterwards retake his prisoner ; and if he can, must do it, and deliver him up in court upon such prosecution. And if the officer, after retaking his prisoner, hold him twenty-four hours without his warrant, the same having been returned to court, and the prisoner then compromise the prosecution he cannot maintain false imprisonment against the officer.(tc) If a defendant committed to prison on an execution issued upon a judgment rendered by a city court, upon an action of which such city court had not jur is- diction, escape, and an action be brought against the sheriff for such escape, he may defend on the ground that such city court had not jurisdiction of the original action, and such defence will be good.(a?) A prisoner upon execution, who escapes, may be retaken in any place. As, where a constable having taken a debtor in execution, who escaped and fled into the state of Rhode-Island, obtained an escape warrant, and pursued his prisoner; and obtained a renewal of the warrant in said state of Rhode-Island, and at Providence retook his prisoner, and brought him back and committed him according to the direc- ts) Root, II. 324. («.•) Ibid. I. 38 S. (r) Ibid. <>SS, 176 SHERIFF, CORONER & CONSTABLE. ■mum tion of the execution. It >vas held that the proceed- ings of the eonstahle, and the retaking and com- mitment were lawful, and not a trcspass.(y) A prisoner, committed on execution, procured bonds For the liberties of the prison, and brought his petition to the general assembly, praying for an act of in>olvency, and. in the mean time, that he might he liberated from his imprisonment on said execu- tion. The petition was continued to the next session of the assembly for trial, and the petitioner in the mean time liberated from his imprisonment on such execution, and departed from the limits. On trial of tbe petition on the merits, it was negatived, but the primmer never returned. In an action on the prison bond, the departure of the prisoner from the li- inii>. and his neglect to return, were held to be no escape ; and that the condition of the bond was not broken so as to subject the sureties.(«) If a defendant be committed to prison in execution, and lining obtained upon bond the liberties of the prison, in the night time privately go beyond the li- mits, and rcium within them before morning, his departure and return being unknown to the sheriff, and afterward is permitted to take the oath provided for pool- pe ru a n a, the plaintifTeannot maintain an ac- tion against the sheriff for the escape so committed in the light ■easOBi without his knowledge,* for by the prisoner's return before aetion brought, the es- eape. S is to the sheriff's liability therefor, was purged. It was no more than a negligent escape in Root i. 106. [bid. 1i. SHERIFF, CORONER k CONST ABLE* 177 the sheriff, and the prisoner's return was equivalent ****• to a retaking on fresh pursuit.(a) If a prisoner in execution on the liberties under bonds, inadvertently pass beyond the limits about thirty feet, and immediately return and request the sheriff to hold him as a prisoner on such execution, the sheriff may refuse and take his remedy on the bond for the escape. But if in an action brought on such bond, final judgment be not rendered therein, and no action be brought by the creditor in such execution against the sheriff for the escape, within two years from the time such escape happened, the sheriff will recover no more than nominal damages in his action on the bond, he not being any longer liable to the creditor for the escape of the prisoner. (b) A gaoler may allow to a prisoner committed on civil process, the enjoyment of the liberties of the prison, cither on bond, or his bare promise to abide a true and faithful prisoner. And if such prisoner, so on the liberties, go beyond the limits, he may, on fresh pursuit be retaken and committed. So to permit prisoners to enjoy the limits, is no escape ; for while they are within the limits, they are to every legal intent and purpose within the prison. A pri- soner being allowed the liberties of the prison, on his promise only to remain a true and lawful prisoner, having escaped, and being retaken and committed, procured bonds for the liberties, and again escaped. In an action on the bond, it was alleged to be void, on account that the retaking was unlawful. But it was determined that the retaking was lawful and the bond good, the first being only a negligent escape.(c) (a) Root I. 106. (6) Ibid. 127. (r) Ibid. II. 174. YOL. I. 3* I7# SHERIFF. CORONER & CONSTABLE. If the creditor in an execution, whose debtor is im- prisoned thereon, and on the limits, fraudulently procure a third person, without the sheriff's knowl- edge, to entice the prisoner to escape, and such pri- sqner, in consequence of such enticement, go out of prison, and beyond the limits thereof, it is not an es- cape in ibe sheriff; and in an action on the prison bond, the sureties will be exonerated.(ci) If a prisoner in execution on the liberties under bonds, take the oath by law provided for the relief of poor prisoners, and immediately depart after having taken such oath, it is an escape in the sheriff, and a breach of the condition of the prison bond. As where such prisoner took the oath on the -ith of Feb- ruary, 62 minutes after 2 o'clock in the afternoon, and money was left for his support until the 30th of March following, including his dinner on that day. And on the same 30th day of March, at 3 o'clock in the afternoon, departed from the limits, and Jbut 5 minutes after such departure, more money was left by the creditor for the prisoner's support, it was held an eseape.(e) So where money was left sufficient to pay for the prisoner's support, until the 8th day of February, in- eluding his breakfast on that day, and the prisoner departed between the hours of 9 and 10 in the fore- noon, it was held to be an escape.^) Hut in an action against the sheriff of the county »f N. L. for the escape of one J. F. committed on (a) Root, I. 536. \») Ibid. '285. (/) Ibid. 49*. SHERIFF, CORONER & CONSTABLE. 179 execution in favour of the plaintiff, the sheriff plead- ^^ cd, " that J. F. being a poor debtor, unable to sup- port himself in prison, prayed out a proper citation and notification, to notify the plaintiff to appear be- fore E. H. esquire, a justice of the peace for N. L. county, or some other proper authority, at the dwell- ing-house of S. M. in N. L. under keeper of said gaol, on the 12th day of August, 1805, at 2 o'clock m the afternoon, to shew cause, &c. That the plain- tiff being an inhabitant of the state of New-Hamp- shire, service of such citation was made by leaving a copy with J. L. esquire, his attorney of record. That the same being so served, was returned to A. S. esquire, who was then a justice of the peace for said count}'. That justice A. S. attended at the time and place mentioned, examined into J. F's circumstances, and being of opinion that he was a proper subject of the poor prisoner's oath, administered the same to him about thirty minutes after 3 o'clock ; and that J. F. remained in gaol until about 4 o'clock of the same afternoon, and then, no money having been left for his support, went at large, which was averred to be the escape complained of in the declaration. The plaintiff replied, that within two hours after the oath was administered, and before the usual time of supper, he left three dollars with the gaoler for the support of J. F. and that when J. F. went at large, he had not become chargeable for necessary food ei- ther to himself or the gaoler. To this replication the sheriff demurred, and the superior court adjudged the same to be insufficient, which was affirmed by the supreme court of er rovs.(g) By which it seems that a poor debtor can- <" ? ) Day TI. 56?. SHERIFF, CORONER & CONSTABLE. escape, not be detained in prison after taking the oath, un- less money be left for bis support immediately on the oath's being administered. And that a citation by the debtor to his creditor to appear before E. H. esq. justice of the peace, or some proper authority, is good, though not returned to E. H. but to some other justice of the same county. On a petition against a county for an escape of a prisoner in execution, through the insufficiency of tlu* gaol, the defence was, that the prisoner escaped by the aid and assistance of certain persons from without the prison, who furnished implements and means by which the prisoner broke the gaol, and not through its insufficiency; and that the prisoner was retaken on fresh pursuit, and was still in prison. To which the petitioner replied, that he had no knowledge of the persons who aided in the escape of the prisoner, and that the recaption took place after his action was commenced against the coun-, t\ ; to which there was a demurrer, and rejoinder in demurrer. The court in delivering their opinion, say: That public justice and the peace of society are concern- ed that prisoners should be securely kept; and that for rveiy escape not happening by fire, public ene- mies, or tbe providence of God, the builder or keeper of the gaol be responsible. In England, the r up oaiihility is on the same person, who pro- vides and keeps the gaol. Here by statute it is di- vided, but not lessened. The county which builds iihI repairs is responsible for the sufficiency of the iol, ;md the sheriff for the custody of it ; and the "lie or tlie otbi-r must answer for every escape ex- '■••pt in the cases abovciueutioned. It is uo excuse SHERIFF, CORONER & CONSTABLE. 181 for the county, if a prisoner break out by the help J*^ of implements handed in at a window. It is their duty to provide a sufficient gaol, which they do not do, if prisoners can break out of it with or without implements. If the gaol is left accessible to per- sons without, and is of a construction and materials, that by the secret use of implements it can be bro- ken, it is not that place of security which the law intends. It is the sheriff's duty to defend the gaol against open and riotous attempts, but it devolves on the county so to build and secure it, that it shall not be liable to be broken secretly, and without the knowledge of a vigilant and faithful keeper. And though when an escape takes place through the means of persons from without, of ability to respond, it is the duty of the creditor in the execution to seek his remedy against them ; yet if they are unknown to the creditor, or are not of sufficient ability to res- pond the damages and cost, he has his remedy im- mediately against the county. Nor does the recap- tion, after process instituted, discharge the liability of the county, though on fresh pursuit ; for if there has been an escape the county is holden. And though the debtor has taken the poor prisoner's oath, his detention in gaol is a statute provision which ena- bles the creditor to detain the prisoner at his own ex- pense, upon the ground that the detention still may, as in fact it sometimes does, notwithstanding the oath, produce a disclosure of estate and satisfac- tion of the debt. Sheriffs, neglecting to commit on execution, are never excused or abated in damages, because the debtor is poor. In England the com- mon action for escape of one in execution is debt, in which, of course, the whole debt for which he was in execution is recovered. Execution is the end of HE. 182 SHERIFF, CORONER & CONSTABLE. esca^. the law, laxness and insecurity here, render futile law proceedings, and the law itself.(fc) N. S. brought his petition against the county of M. to recover damages for the escape of one J. K. by reason of the insufficiency of the gaol. The material facts were, that on the 19th of A- pril, 1S02, N. S. commenced an action against J. K. by Writ of attachment, returnable to the county court in November, 1802 ; and that on the same day the body of J. K. was by virtue of said writ arrested, and for want of bail committed to prison. And that in May, 1802, J. K. escaped from his imprisonment by reason of the insufficiency of the gaol, and immedi- ately absconded to parts unknown. And that said writ was duly returned and entered on the docket of said court, and came by legal remove to the adjourn- ed county court held in December, 1802, when the parties appeared, and a legal judgment was rendered in the action, and an appeal taken to the superior court, where N. S. recovered a judgment against J. K. took out execution and caused demand to be made at i lie gaol within five days, and a non est inventus was returned. By which N. S» lost the whole amount of his judgment against J. K. with the interest upon it. The superior court decreed that N. S. recover the same amount of the county. On a writ of error to the supreme court of er- ror**, the errors relied upon were, 1. That the damages were excessive; and ('/) Kiiby, 3?7. ESCAPE. SHERIFF, CORONER & CONSTABLE. 185 2. That J. K. was legally discharged by appear- in™' in court, and pleading to the action. By the Court As to the 1st question, the re- medy against counties by our statutes, is equivalent to an action on the case at common law against the sheriff for a negligent escape, as to all the damages alleged, inquiry was competent j inquiry was made, and the court gave the principal, interest and costs, which they had an unquestionable right to do. Respecting the 2nd point, by our law, if the body of the defendant be attached, he may be let to bail, and the sheriff must take bail if it be sufficient. The officer must then return his writ with an indorse- ment mentioning that he has taken bail for the de- fendant's appearance. This return imposes an obli- gation on the plaintiff, if he would preserve his hold to demand special bail. The return is the only ob- ject at which he is to look. The condition of the bail bond is performed if the defendant appear. And this appearance consists in the acceptance of a plea. The plea, if accepted, waves all right to special bail, or to an imprisonment of the defen- dant's body. The plaintiff must see that special bail be given before he accepts a plea, or that the defen- dant, (if delivered up) be committed to prison. "When he is committed, he may plead by attorney, or per- sonally, and the words « that he pleads in custody," cannot be essential. They are always superfluous. The record gives a history of the proceedings of his delivery up in court, and of his commitment to gaol. After he is imprisoned, whatever may be the length of the litigation, the defendant must remain in prison until five days after final judgment ; and then if exe- cution be not levied on him. he may be discharged. 18* SHERIFF, CORONER & CONSTABLE. escape. If the defendant will not or cannot procure bail, it becomes the duty of the officer to apply to a justice for a mittimus, which, declaring the cause of the commitment, directs the gaoler to receive and keep the prisoner until discharged according to law. What this law is, appears from the next statute. The prisoner is not to be holden longer lhanjive days after the rising of the court in which fnal judgment shall be rendered. Though expressed negatively, the construction has ever been, that the defendant is to be holden until five days after the judgment. In the mean time, the plaintiff, on inspecting the record, knows that the defendant is secure, and that lie has no act to do to keep him in prison. He is not to object to this pleading, because the defen- dant has a right to plead, and that without bail. He opposes not his pleading by attorney, for the prisoner has a right to his attorney. On the whole, the phuntifFis only to take care that within five days after final judgment his execution be in the hands of the sheriff to be levied on the debtor. This is the construction of our statutes, and this is the invariable practice. There is no analogy between bail to the sheriff and imprisonment. Their systems are entirely dis- tinct, both resting on statutes ; but if there be any analogy, the most simple mode of ascertaining tin- law relative to both, is by an investigation of each without embarrassment from the other. There is, however, a point at which an analogy commences. It is where the person bailed has been delivered up in court, and committed td gaol. A:sd when the person who could not procure bail, is com- mitted by the justice. The commitments are in the SHERIFF, CORONER & CONSTABLE. 185 same language, for the same cause, with the same ob- escape. ject. The law then must be similar in both instances. Imprisonment by the court, it is agreed, must be per- manent until after the rising of the court. The same must be the imprisonment for want of bail to the ac- tion.^') Decree of the superior court unanimously affirm- ed. Money for the support of a prisoner in execution, after having taken the insolvent debtor's oath, must be left by the creditor with the gaoler. In an action on a prison bond, alleging an escape of the prisoner, the defendant pleaded, that, having been admitted to take the poor prisoner's oath, the creditor left no money with the prisoner for his sup- port. The plaintiff replied, that money sufficient was by the creditor left with the gaoler. On demurrer the replication was adjudged sufficient. (j) If the marshal of the district of Connecticut be arrested upon process under the authority of this state, and be committed to prison, the sheriff of the county where the marshal is so committed, must detain him until legally discharged. And if the sheriff permit such marshal to depart from such, gaol, it is an escape in the sheriff, for which he is li- able to the creditor in the process on which the marshal was committed. (k) In the state of Vermont, a former sheriff is not liable for the escape of a prisoner during the shriev- (i) Day, II, 195. (J) Ibid. !. 117. (A) Ibid. 11. 300. 304. TOL. I. 25 tb© vsc.-.rc SHERIFF, CORONER k CONSTABLE, airy of his successor, though such prisoner was com- mitted on mesne process during his own continu- anee in office. He is not answerable for the safe keep- ing of a prisoner within the county gaol after his commission has expired, if he regularly delivered over such prisoner under the keys to his successor in ofiice.(/) A sheriff, as keeper of the prison to which is com- nitted a debtor from another county, is not liable for ihc negligent escape of such debtor. Nor can the nominal plaintiff in ejectment, maintain an action a- gainst a sheriff for au escape of a defendant, commit- ted in his name, for the damages recovered in the ac- tion of ejcctment.(jn) If a defendant, arrested on mesne process,^ com- mitted, and procure bond for the liberties of the pri-, son, and afterwards escape, and be not at the prison to be charged in execution, when within the fifteen days demand is there made for him by a proper officer, having a lawful execution on a judgment rendered on the original writ of attachment on which the ar- rest was made, the bond is forfeited by the escape ; though such defendant was, during the life of the ex- eeution, continually within the jurisdiction of the of- ficcr holding the same for service, and though the de- fendant requested the plaintiff to cause him to be charged in execution. But though the bond is for- feited, on the chancery thereof, the bail may on mo- tion surrender the principal into court, and on pay- ment of costs the court may chancer the penalty down to mere nominal damages, and order the prisoner in- to the custody of the sheriff, to be kept fifteen days, (OTy). Rep. II. C86. (m) Ibid. 61. SHERIFF, CORONER & CONSTABLE. 187 that the plaintiff may charge him in execution on his escape. original judgment, (w) Whenever a prisoner for debt is admitted to the liberties of the prison, and a bond >vilh surety taken to indemnify the sheriff, the least inducement given by the creditor to the departure of the prisoner from the liberties, is a good bar to an action on the bail- bond, when the escape is assigned in breach, (o) (n)Ty). Rep. 121, 127,282. (0 Ibid. 409. CHAP. IV. OF EXECUTION. I. EXECUTION. EXECUTION, according to lord Coke, is the execution. obtaining actual possession of any thing acquired by judgment of law, and is the fruit, effect, and end of the lawj(a) and is the putting the sentence of the law in force.fd) If the plaintiff recover in an action real, whereby ■eizin of land is awarded to him, the writ of execu- tion is an habere facias seizinam. This is where the Hab fec.sei- J . zinam. freehold is recovered j but if the recovery be in e- jectment, in which the party is restored to his term of which he was ousted, the writ of execution is an habere facias possessionem. These writs are direct- Hab r *cpos- * / * sionem. ed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the lands or tenements recovered ; in the execution of which, he may take with him the power of the county, and may break open doors if the possession be not quietly de- livered, font if it be peaceably yielded up, the deli- («) Cok. Lit. 154. 289. (A) Bl. Com. III. 412. 190 SHERIFF, CORONER & CONSTABLE. mevrw. very of a twig, a turf, or the ring of the door in the* name of seizin, is sufficient execution of the writ.(c) The sheriff may not only break open the house to deliver seizin and possession to the deman- dant or plaintiff, but he must remove all persons from the house, (d) And until possession be com- pletely given, and the officers withdrawn, the writ is not exccuted.(e) If the writ direct the sheriff to deliver seizin of several messuages in the possession of the same per- son, it is sufficient that he do execution in one in the name of all, without going to each particularly. But where the houses, &c. recovered, are in possession of several, it is not sufficient that he deliver seizin of one in the name of all, but he must go to each par- ticularly. And if a recovery be of rent common, &c. it is sufficient that the sheriff upon the land de- livers seizin of the reat common, &c. by parol, for thereby the demandant is in actual possession. And if the sheriff offers to deliver seizin, and shows the parcels tn ichich, it is sufficient, though the deman- dant refuse it, for his entry afterwards is lawful.(/) To a writ of habere facias seizinam, the sheriff may not return that another is tenant of the land by right, for the sheriff has nothing to do but to exe- cute the writ.Qj) If a man recover several houses in an assize, and after the tenant iv\ rises the judgment in a writ of eiTor, and a writ thereupon issues to the sheriff, to (,) PI. Com. III. 419. V 91. U) l.v I. Mil. (e) Mod. VI. 87. Smtk. 1.391. T.er. I. 145. (/)(.,, Dig Ill.-'Vi. Kol. 1. 88G. Py.'273. ( S ) Cs.VI.5C. SHERIFF, CORONER & CONSTABLE. 191 put him in possession of those houses, though the te- ■»' nants are strangers to the recovery, and ought not to be ousted without a scire facias, yet if the sheriff execute the writ, and put them out of possession by virtue of it, he is no disseizor, for he acts under the authority of the court, which he is sworn to obey.(ft) If the plaintiff in ejectment declare for forty acres, and recover only thirty, the sheriff may deliver to him possession of two or three acres in the name of all, without setting them out by metes and bounds, though the plaintiff recovered but part of what he supposed in possession of the tenant.(f) Low water mark is a description of the boundary of land in a judgment in a real action sufficient to enable the sheriff to execute such judgment by an habere facias stixinam.(J) If damages and costs are given in an action for the recovery of seizin, or possession of lands or tene- ments, the writ of execution is so framed, that the officer may levy and collect such damages of the defendant, as well as deliver the seizin or possession of the premises rccovered.(fc) In other actions, where the judgment is, that some- thing in special be done or rendered by the defendant in order to compel him so to do, and to see the judg- ment executed, a special writ of execution issues to the sheriff, according to the nature of the case. As upon an assize of nuisance, where one part of the judgment, is that the nuisance be removed, a writ (A) Bac. Abr. IT. 353. (i) Com. Dig. III. 294, 295. (»M. T. R. III. 252. (/) St. M, 201. N. H. SI, 82, St. V.513. impression of 1798. 195 SHERIFF, CORONER & CONSTABLE. Exrc- T'o*. goes to the sheriff, to abate it at the charge of the partv, which like writ issues even in case of an in- dictment. Upon a replevin, the writ of execution is Retomo ha (he writ dc retonw habendo, and if the distress bo eloigned, the defendant has a capias in withernam. But on the plaintiff's tendering the damages, and withernam, submitting to a fine, the process in withernam is staved. In detinue aft >r judgment, the plaintiff has a distringas to compel the defendant to deliver the Mods by repeated distresses of his chattels, or else a scire facias against a third person, in whose hands they happen to be, to show cause why they should not he delivered. And if tlie defendant still continue obstinate (if the judgment hath been by default, or on demurrer, the sheriff must summon an inquest to ascertain the value of the goods, and the plaintiffs damages, which, being so assessed, or by the verdict in case of an issue) shall be levied on the person or goods of the defendant. (/) Executions in actions, where money only is recov- ered? as a debt or damages, (and not any special chattel,) are of five sorts : either against the body of the defendant, or against his goods and chattels, or against his goods and body, or agaiust his goods and chattels and lands, or against all three, ilis goods, body, and lands. (m) (l) Rl. Coin. III. 412, 41 J. (m) Ibid. 413. SHERIFF, CORONER & CONSTABLE. 19S II. AGAINST THE BODY, OR CA. SA. The first species of execution for the collection J^l^ of money only, is a capias ad satisfaciendum, com- monly called a ca. sa. and commands the sheriff to take the body of the debtor, and him to have be- fore the court from which the writ issued, on a day therein named, to satisfy the planitiff's demand.(n) ^ ^ ^ This form of execution is in use in the state of New- y^ r . 395. York, but may not be issued against heirs nor devisees, nor against executors, administrators, nor any other persons whose bodies are by any legal means exempt- ed from imprisonment on execution. If an action be brought against a feme sole, and pending the suit she marries, the capias shall issue against her only, and not against her husband.(o) "When a man is once taken in execution on this writ, no other process can be sued out against his lands or goods; unless he die in ■execution, when the plaintiff may, after his death, sue out an execution against his lands, goods, or chattels.Qj) If the body of a debtor be taken in execution, and he escape, the officer from whom he made his escape, is liable for the whole amount of the execution. (g) But courts will always make a construction as favorable to the officer as the law will permit. (?*) On a ca. sa. the officer may not take bail, nor can he return that the party was rescued; for he may take the power of (n) Cok. Lit. 2S9. Bl. Com. III. 414, 415. (o) Cro. Jac. 5'23. East. IV. 5*-21. (/-) Bl. Com. 111.414, 415. (?) Dalt. Sber. 149. (0 Ibid. 143. VOL. I. 2G 19i SHERIFF, CORONER & CONSTABLE. Ci. SA. the county to his aid j and if he return a rescue, he is liable for the escape, though the plaintiff* may have a new execution. (s) As soon as the defendant is arrested on this writ, he is in execution before the return of it(t) And if the defendant be already in custo- dy on mesne process or execution, and another ca- pias or execution be delivered to the sheriff, so holding him in custody, he is in custody immediately upon the second writ, without actual arrest.(u) If the defendant be in prison for a crime, he may, by leave of the court, be charged in execution. (u) If the officer put his hand, &c. upon the party, or only touch him, saying he arrests him, it is suf- ficient; without showing the warrant, and without saying at whose suit he is arrested, if he does not ask it. And though the officer have the writ in his pocket, or have two there, and do not say on which the arrest is made for, he shall be arrested on both.(rc) But if the party request it, the officer ought to show his writ, tell at whose suit it issued, and for what cause, by what process, and in what court return- sce title arable; otherwise it will be wrong.(a?) Words only do not constitute an arrcst.(y) After an arrest made, the officer may justify break- A»". jng open the defendant's house to retake him if es' -aped.(x) And to make an arrest in the first in- btance, he may break the house of a stranger, where (/I Bac. Abr. 11.351. Cro. Car. 240. (0 Com. Dig. III. 302. Rol. 1.901. ((/) Co. V. 89. Com. Dig. 111. 302. 00 Cam. Dig. III. 302. (w) Co. Jac. 485, 486. Solk. I. 79. (r) Co. VI. 54, (y) Sulk. I. 79. (zJCom. D»g. 111.303. Salk. I. 19. SHERIFF, CORONER k CONSTABLE. 105 the defendant is secreted : but he must be certain the ^ «*• defendant is there, and ought first to make demand of entrance, for if he break the house of a stranger, and the defendant be not within, he may lawfully be resisted, and will be liable in an action in favour of the owner ortenant.(a) If a man, taken upon execution for money only> satisfy the debt, the officer must discharge him* And if before an arrest made the defendant pays the debt to the officer holding the execution, he may not afterwards make an arrest.(ft) Nor if served with a writ of supercedeas, or such process has been deliv- ered io him • but if a supercedeas be delivered to an officer, he may detain the party a reasonable time to be informed of the import of it.(c) If A. arrested on an execution in favour of B. pays the money to the officer, he cannot apply that money to an execution against B. in favour of A. but must pay it over to B.(d) If a defendant has been once taken in execution, and afterwards discharged by consent of the plaintiff, he can never be taken again by virtue of an execution issued on the same judgment, nor can debt on judgment be maintained; but if the defendant were discharged on a special agreement between the parties, an aetion on the case may be maintained on such agreement.(e) If the plaintiff consent to discharge one of several defendants taken on a joint execution, he cannot (a) Com. Dig. III. 303. (b) Cro. Eliz. 404. (r) Com. Dig. III. 303, 30*. (rf) Barns. 214. Cranch. I. 154, (<>) Burr, IV. 3482. ii>6 SHERIFF, CORONER & CONSTABLE. c*. sa. afterwards retake bim nor take any one of the other*. s- '* v ^ And a separate execution against one defendant, on a judgment against two, cannot be supported, ffj Nor can an execution be taken out against the goods and chattels of a defendant, whose body has been once taken in execution on the same judgment and dis- charged.^) Nor may a defendant be taken twice on the same judgment, though discharged the first time on an express agreement that he should be liable to be taken in execution again, if he should not fulfil the terms which were agreed upon between the parties, as the ground of his discharge.(n) If it appear that a ca. sa. has been sued out by the plaintiff against the original defendant, and left at the sheriff's office with direction to return non est inventus, though the defendant was then actually in the custody of the sheriff, in the prison of L. and such return were made by the sheriff, and an action brought against the bail, judgment entered up, exe- cution issued out, and the money levied, the court will set the return aside, together with all subsequent proceedings against the bail, and order the money levied under the execution to be returned to him.(i) .New- York. i n the state of New-York : If the defendant has been surrendered in exoneration of his bail, final judgment obtained against him, and after three months elapsed, on regular notice to the plaintiff m superceded for want of being charged in execu- tion in due time; the plaintiff has elected to relin- quish the person of bis debtor, who having once been actually superceded, must continue so, and can never (/■) Term. Rep VI. 585. (ft) Ibi.i. VII. +20. \h) East, II. 248. (>) Bos. ct I'ul. IV. 251. SHERIFF, CORONER & CONSTABLE. 197 be taken on an execution against his body, issued on J^^ the judgment, in the suit on which he was in custody, (ft) In the state of Connecticut: A justice of the Connecticut. peace may issue his execution throughout the state, if he finds it necessary to give it effect. Should it appear that an execution was directed to a distant officer, merely to vex and oppress the debtor, it might subject the authority who issued it to damages: but the officer is bound by his precept. Unless it be void on the face of it, he cannot look into the cir- cumstances which induced the direction. (&) An execution returnable according to law, runs to the next court which is to commence at the distance of sixty days or more from the date of the execution. The case was thus: — An execution issued on a judg- ment of the county court, dated the 4th day of October, 1782, and returnable according to law. The next county court held in the same county, after the date of the execution, commenced its session on the fourth Tuesday of November, 1782. On the 11th day of December, 1782, the officer levied said execution on a quantity of salt, the property of the debtor: and delivered the same to one H. at his store, to keep and redeliver to the officer at the end of twenty days, which said H. promised to do, but never did. The officer thereupon brought his action of assumpsit against said H. who defended on the ground, that the officer acquired no right to the said salt by virtue of his said seizure : because the return day of the execution, as the defendant contended. (a) N. Y. T. R. I. 515. lb) Kirb. 180. CA SA. 198 SHERIFF, COROXER & CONSTABLE. was past, when the seizure took place, and the exe- cution of no force. By the court After the return day of an exe- cution is expired, an officer has no authority to levy under it; but the statute requires that executions be made returnable within sixty days, or to the next oourtt in case sixty days are remaining between the dat. of the execution and the next court. And when an execution is made returnable according lo luw, and tin :e are not so many as sixty days to the court next to be holden, such execution is, by construction of law, returnable to tbc court holden next after the expiration of sixty days from the date of such exe- eulion. which in this ease was in June, 1783; aud the h\\ good.(c) If an officer arrest the body of a debtor on exe» cut ion, and at his request, and on his promise to return upon a particular day, within the life of the execution, permit such debtor to go home to his family; and afterwards such officer retake his pri- soner, and commit him to gaol on the same execution, men prisoner cannot maintain an action of false imprisonment against the officer.(rt') Such has been the decision, hut it is safer for the officer, notwith- Itandingi to omit taking the body until he has de- termined to commit him without delay, than to haz- ard a renewal of the question. J !iit if an officer, for want of money, goods, or chattel-, of the debtor, take his body in execution, and immediately after the arrest, such debtor tender (r) Knot, I. 101. (,Q Ibid. II. 135. SHERIFF, CORONER & CONSTABLE. 199 to the officer sufficient personal estate belonging to the debtor, to satisfy the execution and the officer'! fees thereon, lie must release the body and take such estate,- and if he refuse to do it, and commit the debtor to gaol, such officer is a trespasser, and liable to an action of false imprisonment. If the estate taken on the release of the body prove to be insuffi- cient to satisfy the execution, (though when taken, apparently enough) the officer may, for the residue, take further estate if to be found ; and if not, may again take the body in execution : for his release of the body was lawful, and no voluntary escape, which precludes a retaking.(e) If an officer who holds an execution for service, has an opportunity to take the goods of the debtor, upon the execution, and neglects to do it, he is liable to the creditor for the neglect ; and if, having had such opportunity for executing his writ, he is after- wards prevented by any act of the defendant, or any lawful impediment not existing when he had such opportunity of levying such execution, and he returns a non est inventus, or that lie could find no goods whereou to levy, &c. he is liable for a false return. (£) In the state of Vermont: In all civil cases where there has been a commitment upon mesne process, the creditor must be prepared to charge the debtor in execution within fifteen days after the rendering final judgment against him, or he will lose his lien upon the sheriff" as keeper of the gaol, Whether the debtor be de facto a prisoner at the term at which (0 Root, I. 120. Kirb. J 80. If) Day, I. 128, 200 SHERIFF, CORONER & CONSTABLE. ca. 5a. final judgment be rendered op not. If the debtor has been legally committed, and not legally discharged, he is in contemplation of law in the sheriff's custody within the prison. (#) (g)Tyl. Rep. 11.283. SHERIFF, CORONER & CONSTABLE. 20f III. AGAINST GOODS AND CHATTELS, OR FIERI FACIAS. EXECUTION against the goods and chattels of the defendant, is called ^fitvi facias, and by abbre- viation, a ft. fa. from words in it formerly, when judicial proceedings were in Latin, wherein the sheriff is commanded, that of the goods and chattels of the defendant, he cause to be made the sum or debt recovered. This execution is issued in cases where, by the general principles of law or some special circumstances, the body of the defendant is not liable to imprisonment on execution, nor are the lands of the defendant liable to extent.(a) In exe- cuting this writ, the officer may not break open the outer door of the defendants house ; but if his goods and chattels are secreted in another's house, the officer, after a demand of admission, stating the cause, and a refusal, may break the house where the goods, &c. are deposited, by night or day. (6) And if he enter peaceably the defendant's house, the outer door being open, he may break inner doors, chests, and trunks, to come at the goods.(c) But the officer may not even raise the latch of the defendant's outer door ; nor, if a little opened, thrust in with violence.(d) To execute this writ, the officer may take and sell the goods and chattels, including terms for years, and annuities, till he has raised enough to satisfy the (a) Bl. Com. III. 407. St. M. N. H. R. I. pott. (b) Co. V. 93. (c) I bid. 92. Cro. Eliz. 909. (d) Com. Dig. 299. ▼OL. I. 87 FI. FA. .0^ SHERIFF, CORONER & CONSTABLE. Ft. FA. judgment and costs,(f) first paying to the landlord of the premises, whereon the goods are found, the arrears of rent then due, not exceeding one year.fjfj He may cut down and sell corn growing on the land, and may remove and sell utensils of trade erected by the defendant, though fixed to the land ; such as coppers, fats, tables, partitions, and the like: but hearths, chimney-pieces, put up by the defendant for the use of the house, and not for trade, may not be taken in execution. Nor may doors, nor windows, nor fruit or other trees, nor the fruit on them, nor common grass, (ff) The officer may not take goods deposited in pledge, or pawned; nor articles demised, or let to another ; nor goods taken and in custody on a former execu- tion, (/«) unless in the custody of the same officerj(i) or unless the officer who first took the goods returned that he found none, (j J If there are joint partners, and execution issue against one, the partnership goods may all be taken, but the officer must sell only the defendant's share, and the purchaser will be tenant in common with the other partner.(fc) But where the officer, having seized, and sold the whole of the partnership effects on execution against one, it was held to be th« officer's duty to pay over to the other partner a part of the avails proportioned to his share in the part- nership cffects.(J) (e) Co. III. 12. VIII. 171. IV. 74. Cro. Jac. 79. (/) Bl. Com. III. 417. St. N. Y. I. fj) Co. III. 10 Salk. I. 368. Com. Dig. III. 299. Bos. & Pul. 111. 181. East VI. 604. (A) Com. Dig.lll . 299. Sliow. 173. Mod. III. 236. (t) M. T. R. V. 213, 274. (/) Com. 1%. III. 299. Vcr. II. 23». (k) Salk. I. :>92. (0 Doug. «3U. PI PA. SHERIFF, CORONER & CONSTABLE. 20S If an execution issue upon a judgment against a corporation, the officer cannot take the goods of a member, of which he has in his natural capacity, hut the goods of the corporation only.(m) Nor can an officer take any thing in execution which he can- not sell, such as deeds, bonds, writings, notes of hand, bank notes, nor any chose in action ; they are of no intrinsic value, nor can he give any title to them by the forms of a sale.(n) But specie, gold and silver coin, may be taken in execution, and endorsed at its statute value, (o) The officer may not take several chattels where one is sufficient for the debt and costs. Nor may he detain the chattels taken, till the money be levied, and the charges of keeping them be paid for; though he may make sale, and the keeping is a favour to the defendant, yet this must be by agreement, and not by detainer till satisfaction, (p) "When an officer has taken goods in execution, he may sell them, though his office be determined be- fore the sale.(g) In the sale of a term for yearg on execution, if the officer mistake the date of the term, and the bill of sale contain general words, such as, " all the defendant's interest," &c. it is sufficient ; but if there be no such general words, the sale will be void.(r) A sale by the sheriff con- tinues good, though the judgment be afterwards re- versed : for the money only shall be restored if th© sale was to a stranger ; otherwise of a term, to the plaintiff.(s) (m) Com. Dig. III. 299. (n) Cases Temp, lord Hardwicke, II. 53. S. C. C. (o) Cranch, 1. 134. (p) Com. Dig. III. 300. (?) Mod. VI. 295, 299. (r) Co. IV. 7*. (s) Ibid. V. 90. Cro. Jac. 246. YcL 18t. 204 SHERIFF, CORONER & CONSTABLE. m fa. Though Kjl.fa. bind* the goods as against the v ^ > ^^' defendant, yet the property remains in him until ex- ecution executed ; and for that reason, execution and sale under a subsequent writ delivered to the sheriff will vest a title in the purchaser; and the plaintiff in the first execution is left to his remedy a-.iiiist the sheriff, unless it were the fault or lach of me* plaintiff, which occasioned the non execution of his writ.(f) If aji. fa. issue against one of several partners, the court will not, at the request of the partnership creditors, give the sheriff time to return the writ, until an account can be taken of the several claims upon the partnership property. And the safest line of conduct for the sheriff to pursue, is to put some person in possession of the defendant's share as vendee, leaving him and the parties interested to contest the matter in equity, where a bill may be filed, stating that he has taken possession of the property ; and praying, that it may not be disposed of until all the claims are arranged.(u) WWrt jr >v- In the state of New-York : Wheat or corn growing, * ;\" i> a <■ hut tc I, and mav he taken on execution. The case t . ' A ;.oii •> »>/*• \Nits: \V. II. on the 9th of December, 1805, recovered a judgment ageiast R. II. and execution on the judg- iiii hi \s;i^ taken out, returnable in February, 180G; •.mil delivered the 19th of December 1805, to the de- Milani. iheriff of Chenango county, (which at that due • ■oinprehcnilcd the place where, &c. and which, before August 1806, Mas included in Madison ct> it] :> and i'l the iame month of December, the defendants by rirtne of said execution, seized the wheal in qneitiODi then growing on the grounds (0 I ■»-', IV. 5'2:1. (.) Bot, M Pol, 111. -388. SHERIFF, CORONER & CONSTABLE. *0S And in the month of August, 1806, the proper time for harvesting the wheat, by virtue of his seizure so made, cut, carried away, and sold the wheat on said execution. On the 16th of August, 1806, an exe- cution issued, at the suit of B. AV. and S. G. AV, against the said R. H. tested on the 11th August, 1806, returnable the second monday of November thereafter, directed to the sheriff of Madison county, the plaintiff in this suit j who on the 16th, of said August, went into the same field of wheat, and made a personal levy, and took account of it, while W. II. and others, under the direction of the sheriff of Chenango county, the defendant were gathering the wheat. After the defendant had sold the wheat as aforesaid, the plaintiff brought his action of trover, for the same. The question was — AVas the seizure and sale by the sheriff of Chenango, the defendant, good ? By the court The wheat growing on the ground was a ehattel, and as such, subject to be taken in execution. The defendant, when he levied, took all the possession which the subject matter would per- mit \ and it was sold as soon as it was fit to be reap- ed. The nature of the property accounts for the delay, and destroys the presumption of fraud, which might otherwise exist. The sheriff might perhaps have sold the wheat while growing, and the pur- chaser would then have been entitled to enter for the purpose of cutting and carrying it away. But such a sale would probably have been very unfavour- able, as the certainty and value of the crop could not be ascertained : the defendant has made out his justification, and a non suit must be entered. (a) (a) Johns. Rep. II. 418. Salk. I. 368. Co. III. 11. Com. Dig. III. 298. Pt. FA. 206 SHERIFF, CORONER & CONSTABLE. fi^f*. If the levy and sale be made by a sheriff, after the execution in his hands is returnable, he acts without authority, and is liable to an action of tres- pass to respond damages to the defendant. For after the return dny of a Jkri facias, the power of the sheriff under it, is gone. The latest period which the law allows for the service of an execution, is the return day.(fe) A resulting trust, or residuary interest, remaining to the assignor after the purposes of the assignment for the payment of debts, are satisfied, is not such an interest as can be taken and sold upon an execution. Sich residuary interest, necessarily arises in every case where property is assigned in trust to pay debts, or to satisfy other specified objects ; but it is not subject to execution issued against the assignor.(c) A sale under an execution issued on a judgment rendered by a justice's court, may be adjourned at the discretion of the officer; and the completion of the sale at a different time and place will be valid, if there be no fraud or abuse. The case was an ac- tion of trespass against a constable, who by virtue of an execution against the defendants therein named, took eertain blacksmith's tools, which were adver- tised for sale at auction ; and after two bids were made, one of the bidders, who had bid twelve dollars, refused to bid more until he should see the tools. The debtors objected to adjourning to a different place, but the constable adjourned to the black- smith's shop, where the tools were, at the distance of more than a mile from the place where the auc- (&) John*. Rep. IV 446. N. Y. T. R. 243. Salk I. 321. Cr». Jar. .)ti.i ( .)06. Day III. l. (•) Jwbi.i. Kcp. V. J3.S. SHERIFF, CORONER & CONSTABLE. 207 tion commenced, and there sold the tools to the J^J^ highest bidder for twenty four dollars. By the court-— The adjournment of the sale to a different place, was a matter of discretion with the constable ; and the question must always be, whether this discretion has been abused. There is no charge of fraud in the present case, and the constable could not therefore be liable as a trespasser, (fj In the state of Massachusetts : If a sheriff sell goods upon an execution without legally advertising the sale, and return that he advertised and sold them according to law, he is liable to an action on the case for a false return ,* but the debtor in the execution cannot maintain trover for the goods.(^) If an officer seize goods on an execution, he must sell them at the expiration of four days from the seizure ; and must duly advertise such sale forty eight hours before it takes place. And if he neg- lect to make such sale, or to advertise as the law directs within the time limited, another creditor may seize the same goods in execution, and cause them to be sold for his benefit.(/i) When goods sufficient to satisfy the judgment are seized on an execution, the debtor is discharged. Even if the sheriff waste the goods, or misapply the money arising from the sale, or do not return the execution. For by a lawful seizure, the debtor has lost his property in the goods, (i) (/) Johns. Rep. 345. (?)M. T. R. 111.487. (A) Ibid. V. 399. (/) Ibid. IV. 403. 208 SHERIFF, CORONER & CONSTABLE. ri. fa. Money may be taken in execution, if in the pos- session of the defendant. But if an officer collect money on an execution in his hands in favour of A. against B. and has another execution in his hands, in favour of C. against A. the officer may not levy C's execution on the money so collected of B. until it is paid over to A. and in his actual possession, (jj If a deputy sheriff have in his hands an execution in favour of C. and D. against M. and J. and while holding such execution, and before serving it, he is summoned in an action of foreign attachment, as trustee to C. and D. ; and after being so summoned, he levies the debt of M. and J. he may pay the money over to C. and D. or their attorney, the service of such summons upon him as trustee to C. and D. notwithstanding. For the officer is not, under such circumstances, within the statute authorizing the action of foreign attachment, trustee to C. and D. Nor has he, by holding such execution, any of their goods, effects, or credits, in his hands at the time of serving the summons. Nor is he any debtor of theirs, having no property in the execution. While in force, it cannot be liable to satisfy the judgment upon the foreign attachment, for it cannot be taken and sold on execution. Neither can C. and D's execution stand bound in the officer's hands for that purpose. For C. and D. may at any time before it is served, n lease the execution ; which, after notice to the officer, will defeat all his authority to serve it, and thereby wholly discharge M. and J.(fe) Nor is a deputy sheriff, who has collected money on an execution in his hands not yet returnable. (/) ('ranch. I. 117—136. (*; M.T. R. 11.91. SHERIFF, CORONER & CONSTABLE. 209 liable in an action of foreign attachment, as a trustee *«• **• to the creditor in such execution. "When an officer receives money upon an execution, the law pre- scribes his duty in relation to it. He is not bound to pay it over to the creditor until the return day of the execution. From his receipt of it, until that day, it is not the creditor's money, but is in the custody of the law, and is not liable to be arrested in the hands of the officer. The money collected on exe- cution by an officer, is not, while in his hands, the property of the creditor, and of course cannot be cither his goods, effects, or credits. And if the officer has not in his hands any goods, effects, or credits of the creditor in execution, he certainly cannot be his trustee.(J) Nor is such deputy sheriff liable, as a trustee, t6 a judgment creditor, on account of money collected on an execution in his favour, until after demand shall have been made upon such officer, by such judgment creditor, for the money so collected on his execution. The money not belonging to the creditor in the execution until actually paid over to him, and no indebtedness arising from its detention until such demand made.(m) In the state of Connecticut : If an execution be prayed out after the death of the plaintiff, and committed to an officer to collect, he may receive the money thereon, and indorse the execution satis- lied ; and the administrator is thereby barred of his scire facias.(?i) (OM. T. R, III. 289. (i») Ibid. V. 319. Crunch. I. 117. S. C. U. 8. {») Root. I. rw. VOL. I, 28 210 SHERIFF, CORONER k CONSTABLE. FI. FA. Money of a debtor may be levied upon, and taken by an officer, to satisfy an execution. (o) But it must be money in possession of the debtor ; for mo- ney received by an officer, of B. and indorsed on an execution against him, in favour of A, cannot, by such officer, be levied upon, and taken to satisfy an execution in his hands against A ; for it is not the money of A. until paid over to him.(p) A writ of error allowed and signed, is not before service a supersedeas of execution. Nor will the service of a Avrit of error, after seizure of goods, prevent the officer from compleating execution thus begun. And if the goods thus seized, have been delivered to a third person at his request, and on his promise to redeliver them to the officer at the sign post, on the day on which, by law, they must be sold; and a writ of error to reverse the judg- ment on which the execution issued, is after such seizure and delivery to a third person, and before the day appointed for the sale of such goods, served on the creditor on such execution, and a copy of sucli writ of error left with the officer holding such execution, it will not suspend his right to compleat the sale of such goods, and the levy of such execu- tion. And if the third person shall not, on the day appointed for the sale of such goods, redeliver them accord tog to his promise : and afterwards, on the hearing of the writ of error, the original judgment be reversed} such reversal will be no bar to an action to be brought b.\ the officer against the third per- son, on his promise to redeliver the goods. But if he has restored them to the original owner before such action brought, the rule of damages will be (.,) Root. I. |16 (/.) Ibid.!. 47. Crunch. III. 317. SHERIFF, CORONER & CONSTABLE. 211 the amount of the officer's fees on the execution >^™- only.(g) If judgment be entered in favour of the plaintiff, in an action by foreign attachment, he must take out execution ; and demand thereon must be made of the garnishee, by a proper officer within sixty days after the rendering final judgment in the action, or the attachment will be dissolved.(r) In the state of Vermont : If an officer holds at the same time, an execution in favour of A. against B. and another execution in favour of B. against A. he may offset one execution against the other, and indorse the amount of the less on the greater, and return the less satisfied by such offset.(s) (q) Day, II. 370. (r) Root, II. 238, 224. (*) Tyler's Rep. I. 28. 212 SHERIFF, CORONER & CONSTABLE. IV. AGAINST THE BODY, GOODS AND CHATTELS. t.iOBY.aooDs A THIRD species of execution runs against the body, goods, and chattels, of the defendant, and may not be executed on real estate. If goods and chattels sufficient can be found by the officer within the limits of his jurisdiction, he may not take the body of the defendant : but for want of such goods and chattels, and in case the execution be not other- wise satisfied, his body may be arrested and com- mitted to prison until satisfaction be made.(a) This form of execution issues in the states of New- York, Massachusetts, and New-Hampshire, on judgments rendered by justices of the peace only: and in the state of Rhode-Island, also on judgments of su- perior courts. (a) St. N. Y. ") Ibid. M. f Ibid. N. H. C Ibid. R. I. ) Vide Vol. II. > SHERIFF, CORONER & CONSTABLE. 213 AGAINST GOODS, CHATTELS, AND LANDS. A FOURTH species of execution issues against i-.coom, CHATTFJ S vs the goods, chattels, and lands of the defendant, and LANDS ' the body of the defendant can in no case he taken upon it. If there he goods or chattels sufficient to satisfy the execution within the officer's jurisdiction, he may not, in New-York, Connecticut, Vermont, or Rhode-Island, take the lands of the defendant; hut for want of such goods and chattels, the defend- ant's lands may, by virtue of such execution, he taken; and in Massachusetts and New-Hampshire, the creditor may, at his election, take either goods and chattels, or lands. In the states of New-York and Rhode-Island, lands and tenements taken on execution, may be sold at vendue to raise the money due on such execution. But in the states of Massa- chusetts, Connecticut, New-Hampshire, and Ver- mont, must be extended according to their true and just value, in satisfaction of such execution, and bo set off by metes and bounds, or otherwise designated with as much precision as the nature of the estate will admit of. But if it cannot be divided nor des- cribed in such manner, in Massachusetts, New- Hampshire, and Vermont, the execution may be extended on the rents, issues, and profits thereof, to he received by the plaintiff till his execution he satisfied, or the estate he redeemed by the defendant; excepting that an equity of redemption in Massachu- setts must be sold at vendue. This form of execu- tion issues in the states of New-Hampshire, Mas- sachusetts, Rhode-Island, Connecticut, and Vermont, in cases only where the bodies of the defendants are 214 SHERIFF, CORONER & CONSTABLE. 9. goods, not liable to imprisonment on execution j but in the CUA l" Jr''. & state of New-York, the plaintiff may, at his election v -*~ v "*"' in all cases of judgments obtained in personal actions in any court of record, have this form of execution* or one against the body of the defendant only, (a) Sheriff's sale In the state of New- York: If a sheriff sell land J2J Jhieh y on execution, it is within the statute of frauds, and may be deli- re q U i,. es a d ee( i or no f e i n writing, to pass the crow. estate.(ft) A deed executed by the sheriff, of land so sold at auction, and delivered to the attorney of the plaintiff, to be delivered to the grantee, on the payment of the purchase money is an escrow; and until such payment, the estate continues in the debtor whose lands have been thus sold by the sheriff.(c) An equity of redemption in mortgaged premises, (the mortgagor being in possession,) is liable to be sold by the sheriff under an execution against lands and tenemcnts.(d) A sheriff's deed of lands, sold under an execu- .'l Mic, when it mu t beex- tion^ and described by metes and bounds, together Mrerad. w '* n a l' ^ays, passages, paths, easements, &c. does not include land held by a distinct title, though ad- joining the premises, and formerly purchased for, and used as a road for the same ; if not included in a particular description of the premises. And a sub- sequent deed from the sheriff for the road, founded (a) St. N. H. ibid. M. Ibid. R. I. Il.ii). C. ^' de Voh n - lb,d. V. Ibid. N. N . 390. (h) N. Y. T. R. II; 61. (r) Johns. Rep. II. 248. (rf) N. V. C. E. 47. SHERIFF, CORONER & CONSTABLE. 215 on the antecedent execution and sale, will not pass '-J:™™'. CtlATlELSf OC the Jand. The sheriff cannot, after a sale duly land*. made, and after a deed executed with the requisite c^fbe'a- fornialities, and an acceptance of it by the grantee mended by and the execution returned satisfied, be permitted to aver against his own deed ; and substantially to vary and enlarge it by a subsequent conveyance. His whole authority is at an end after the sale, and consequent satisfaction of the party. The purchaser buys at his peril, and no property passes at the sheriff's sale but what is, at the time, ascertained and dcclared.(c) If A. by agreement with B. and with his money, purchase land, and take a deed thereof to himself, he is a trustee for B. And such an implied resulting trust, is not within the statute of frauds, and may be proved by parol, and the land so purchased by A. may be seized and sold on an execution issued on a judgment against B. the cestui que trust There may be an interest in growing crops in one man, whilst the title to the land is in another. The one does not necessarily follow the other ; but when the right to any portion of the crop exists in the owner of the soil, then, unless in certain excepted cases, the ownership of the land, draws after it that of the crop, and a sale of the land simply by the owner both of the land and crop, conveys the property of the crop to the purchaser. If a voluntary sale would do this, a sale under an execution will pro- duce the same consequences. CfJ The interest the mortgagee has in lands mortgaged, cannot be taken and sold on execution until foreclo- sure ', or at least until possession taken by the mort- is) Johns. Cas. I. 284. (/) Johus. Rep. III. '216. 216 SHERIFF, CORONER & CONSTABLE. a. goods, gagee ; for the mortgaged premises continue to be "^llTos. ^ real estate in the hands of the mortgagor, and liable ^^~> to he sold on execution against him. The mort- gage remains in the light of a chose in action j and is merely an incident attached to the debt, and cannot m reason and propriety be detached from its principal. There is no way to render a mortgage vendible but by allowing the debt to go with it j and and this would be repugnant to all rule, for a chose in action is not the subject of sale on execution.^) ) ide ante. Tjundage. jf an execution be levied on lands, and before the time of sale, the parties compromise, the sheriff is entitled to his full poundage in the sum realized by the plaintiff, or what might have been collected from the property levied on ; and may recover the same by action against the creditor in the xeecu- tion.(/.) The sherifF is entitled to poundage on an execu- tion levied on the body of the debtor, Mho, after his arrest and detention in custody obtains his dis- charge under a law granting relief to debtors with respect to the imprisonment of their persons; and may compel the attorney for the plaintiff to pay such poundage, without resorting to the creditor in the execution. The case was an notion brought by the sheriff against the attorney in the cause, for poundage, on an execution levied on the, body of the debtor. The sheriff, by virtue of an execution issued in favour of T). iind 11. non residents, against W. arrested and (g) Julius. Rep. IV. 41. (A) N. V. T. I'v. 1. J'.":. SHERIFF, CORONER & CONST ABLE. 34! detained him in custody until discharged under the v - coods, „ , ■ • « « 1 i . • i ui CHATTELS, 6 act for the rehet ot debtors, with respect to the land*. imprisonment of their persons. The questions raised, were : Is the sheriff entitled to poundage? and if so, can he compel the attorney to pay it ? By the court The sheriff is to have his fees for serving an execution. This service when applied to an execution against the body, means the taking the body in execution. The sheriff has then per- formed the service of arresting and imprisoning the debtor pursuant to the command of the writ, and has subjected himself to the peril of an escape, and of being answerable for the whole debt; and it is just and reasonable he should be paid, Avhat the law deems an adequate compensation for this service and for this risk, and is entitled to his poundage; which, he may compel the attorney, his immediate employ- er, to pay, and need not resort to the principal.(i) (0 Johns. Eep. V. 252. VOL. I. 20 218 SHERIFF, CORONER k CONSTABLE VI. AGAINST GOODS, CHATTELS, BODY, AND LANDS. ». r.ooDi, THE fifth and last species of execution I shall de- cHArrcLs scr H) e j ssue s against the goods, chattels, body, and BODY, AND ° ° * lands of the defendant. In the states of Connecticut and Vermont, this form of execution issues on all judgments rendered in personal actions, wherein the body of the defendant is liable to be taken in execu- tion ; and also the same in Massachusetts and New- Hampshire, except on judgments rendered by justices of the peace. And in Rhode-Island, on judgments rendered by their supreme court or courts of com- mon pleas, in cases where real estate was attached in the original actions on which such judgments are founded ; and' where no such attachment was made in the original action, if neither personal nor move- able estate of the defendant, nor his body can be found, his land may be taken on this execution. It is the duty of the officer, if the sums speciiied in the execution are not paid, (of which he must make de r mand at the debtor's usual place of abode in Connec- ticut and Vermont, if such abode is within the juris- diction of such officer,) to take goods and chattels of the defendant, if to be found within the limits of his jurisdiction, sufficient to satisfy sm h execution, and for want of such goods and chattels of the defendant, to take liis body, and commit the same to prison, un- less the plaintiff elects to take the defendant's real < late. If tli; officer seizes goods and chattels, he mn-i en il them at public vendue, and apply theavails thereof in satisfaction of the execution: but if he »;ike real estate, itmusi be extended at its true and just value, and be bet oft* by metes and bounds, or LAXDS. SHERIFF, CORONER & CONSTABLE. 219 otherwise designated with as much precision as the J£££ nature of the estate will permit: (but if the estate body, and cannot be divided, nor sufficiently described, in Mas- sachusetts, New-Hampshire, and Vermont, the exe- cution may be extended on the rents, issues, and pro- fits thereof, to be received by the plaintiff, till his execution be satisfied, or the estate be redeemed by the defendant ;) excepting- that in the states of Mas- sachusetts, an equity of redemption, and in Rhode- Island, all real estate so taken, must be sold at ven- due for the purpose of satisfying such execution.(a) If in Massachusetts, the officer who levies an exc- cution upon land, return that he appointed two ap- praisers, but does not certify that the debtor refused to choose one, the return is bad, and the extent void ; and the plaintiff acquires no title to the premises. (6) The case was a petition for partition. The petitioner claimed three-fourth parts of the premises described. The respondent pleads that he is seized of one half, and traverses the petitioner's seizin of three-fourth parts. The petitioner replies, that he is seized of three-fourth parts in manner and form, &c. On tri- al, the petitioner offered in evidence, ^ judgment of the court of common pleas, in favour of P. E. against A. E. and an execution thereon, levied on one-fourth part of the premises. The respondent objected to this evidence, because it appeared that the sheriff had appointed two of the appraisers, although he had not certified that the debtor had refused to choose one. The judge overruled the objection. To this opinion (a) St. M. Ibid. C. Ibid. N. H. Ibid. R. I. Ibid. V. 144, 145, 146. Fav's impression, (0 M. T. B. II. 15*. .; SHERIFF, CORONER k CONSTABLE. i. goom, of the judge, the respondent filed his exceptions, and moved for a new trial. C3A1 TEL-, B'JPY, AND I 1NDS. Parsons, C. J. At common law, land is not lia- ble to execution j this being wholly a provision of a statute, the proceedings ought substantially to pur- sue the statute. The act of 6. Geo. 2. c. 2. by force of which this execution was levied, directs the officer to cause three indifferent and discreet freeholders, to appraise the land on oath. Of these appraisers tlie creditor is to choose one, the debtor one, if he see eause, and the officer the third. If the debtor do not see cause to appoint an appraiser, the duty neces- sarily devolves on the officer, or he cannot cause the land to be appraised by three appraisers. But here is nothing shown to authorize the officer to appoint two of the appraisers. It does not appear that the debtor had the option given him by law, as the officer does not return that the debtor did not see cause to choose an appraiser. The objection is fatal.- The execution ought not to have been given in evidence, because the judgment creditor derived no title to the land by the levy. Parker and Sewall, judges coucurrcd. New trial granted. (c) The lands of a debtor cannot be taken on execution unle the acceptance of the creditor, to whom BJzin must be delivered by the sheriff; and until mm li delivery of seizin, the title of the debtor is not effected, The creditor's title is by matter of record, and unless he can show snch title by record, the debtor will hold the land. The sheriff must therefore ft (urn the extent and the delivery of scizin.(d) (r) M.T. R. II. 15*. ■ l'j:d. IV. i03. LANDS. SHERIFF, CORONER & CONSTABLE. 22 An execution against the goods and estate of a de- 3 - goods, CHATTEL' ecased person in the hands of his executors, may be BOD y, and levied on lands of which the testator died seized, in possession of the alienee of the devisee ; and this may be done, though the executor, being also resi- duary legatee, has given bond with sureties to the judge of probate for the payment of the debts and legacies of the deceased. Though the plaintiff has a right to have his execu- tion levied on the lands of the debtor, whether living or deceased ; on those lands only is the sheriff au- thorized to lay his execution. If he take other lands, he is a trespasser ; and neither he nor the creditor can be protected by the execution. If the right own- er, not the debtor, be dispossessed, the act is tortious, and he may maintain trespass against the creditor and the sheriff ; who are equally liable, as for taking goods not the debtor's, or for arresting the wrong person.(e) Nor does a specific devise of the land levi- ed upon, make any difference, or extinguish its lia- bility to be taken by virtue of an execution against the goods and estate of the testator.(/) In the state of Connecticut : If a feme while sole, obtain an execution in her favour, such execution may be levied on land, after her marriage ; and her cov- erture notwithstanding, she must as the creditor, appoint one of the appraisers. And though the es- tate of the debtor in the land levied upon, be but a chattel interest, he, holding under a lease for 999 years only, it must be appraised, and set off in the same manner as when he is tenant in fee simple.(£) (e) M. T. R. III. 523. (O Ibid. IV. 153, 51' tg) Root III. 5. ■■»£»« SHERIFF, CORONER k CONSTABLE. a. coons, For the purpose of appointing an appraiser of land S£"IS taken on execution, on the refusal or neglect of either 06 • party, any justice of the peace within the town where the land lies, may he considered as the next justice; And where the parties agree upon a tenant of the debtor, (recognizing him as such,) to be an apprais- er, neither of them will be permitted to allege that the appraiser so agreed upon, was not indifferent; and especially will the debtor, whose tenant was the appraiser, be precluded from objecting to the ap- praisal on that aeeount.(ft) An officer, by the direction of the creditor in an execution, levied the same on land with a house and shop thereon standing, the property of the debtor; and in his absence procured the legal appointment of appraiser!, who appraised the land, house, and shop, am h by a distinct and separate appraisal, amounting in (lie whole to a sum sufficient to satisfy the execu- tion. And having proceeded thus far with the real estate of the debtor, by the further direction of the creditor, who was displeased with the appraisal of tbc real estate, levied the same execution upon per- sonal estate of the debtor, and having sold the same to the amount of the sum at which the shop was ap- praiv il. obtained from the appraisers a certificate of their appraisal of the land and bo::se, omitting in the riptioa («; mem ton the shop, and made return of Ultimas satisfied by the taking and sale of Hub \y rstaaJ estate ; and by the appraisal and setting oil' of the land, with the house and shop standing I ' • BOB, v ithon! making any exception of the shop in n tam, atoll officer was held liable to the debtor lathe execution, in an action of trespass for taking hid goods, «'<\ on such execution. For after a lery upon CO Ifcld. r. I4i. SHERIFF, CORONER & CONSTABLE. 22i land, and an appraisal, the officer cannot desist and "• COOM ' rt • 1_ 1 CHATTELS, resort to personal property. If a creditor may be al- BO dy, a*» lowed to abandon one levy and appraisal, he may a second and a third, and so on, till he gets an appraisal to suit him. The real estate was first levied upon, and the title afterwards compleated. That he can hold. That title accrued under the original levy : no subsequent levy or appraisal w as made ; the act of the officer in turning aside and taking personal property, was as much a trespass as if the execution had been satisfied years before it.(/) An equity of redemption of mortgaged premises, is liable to be taken in satisfaction of an execution, and must be appraised as iand, but cannot be set out by metes and bounds ; but the whole of the mortga- ger's right must be appraised, and if it do not exceed the amount of the execution, and officer's fees, and other charges of levying, may be set off as all the right of the debtor in such land : and the amount of the appraisal must be indorsed on the execution, in which the creditor becomes as a mortgager. But if the debtor' sright in the premises be appraised at more than the amount of the execution, and officer's fees thereon, and charges of levying, the officer must set off to the creditor such a proportion of the equity of redemption, being an undivided right as the amount of the execution, officer's fees, and other charges of levying, bear to the Avhole appraised value of suck equity of redemption. And in such case, the credit- or becomes as a second mortgagee.(j') la an action of surrendry, the plaintiff, to make out a title tc land, by virtue of the levy of an exe- cution, must show (by the officer's return) that the ap- (0 Day II. 317. (;) Ibid. 1. 93. II. |ffl. att SHERIFF, CORONER & CONSTABLE. v. goods, praise rs who made the appraisal were indifferent free- to»v™"d holders, and that they were sworn according to law. JiJJ, But tne defendant may, by parol evidence, falsify the return of the officer, and show that the apprais- sers, or some of them, were not indifferent. And where one of the appraisers was uncle to the wife of one of the creditors in the execution, it Avas con- sidered that he was not indifferent within the statute^ and the levy void.(fc) If an execution he levied on lands or tenements itt which the defendant has an estate for life, the estate taken must he appraised in the same manner as when the estate taken is held by the defendant in fee, the appraisers estimating the true and just value of the defendant's life estate in the .premises. And the officer must by metes and bounds, set off by ad- measurement so much of the land as will satisfy the execution according to such appraisal, if there be sufficient of the lands and tenements whereon the levy is made.(i) Appraisers of land taken in execution must be freeholders of the town where the land lies, and if one of the appraisers belong to another town, though agreed upon by the parties, the levy is void, and no title acquired by the creditor in such execution.(m) In the state of Vermont : If the sheriff has in his bands two writs of execution, both in favour of A. against B. he may extend them both jointly upon the same parcel of land, without specifying in his re- Mm distinct boundaries to the land appraised and (k) Day, I. 109. M. T. R. 11. 154. (0 Root, II. 328. ("0 Ibid. I. 196. LANDS. SHERIFF, CORONER & CONSTABLE, 225 set off on each execution. And may return on each, v - goods, CH A'lTEI s " that to satisfy this and one other writ of execution body, and between the same parties, I have extended on, and caused to be appraised, according to law, certain lauds, butted and bounded,'* &c. and it will be gcod.(n) The fee bill does not empower the officer to charge fees to the plaintiff, for the return of an execution stayed by supersedeas or a writ of error : and if the plaintiff is not liable to pay the officer's fees, he cannot claim them of the defendant, nor ought they to be included in damages recovered on such writ of error.(o) ('j)Tyl. tfep. I. 14. (o) Ibid. ee. VOL. I. 30 CHAP. V. OF REPLEVIN. REPLEVIN is a redelivering by the sheriff to the mp"ti». owner, his cattle or goods, distrained upon any what, cause, or otherwise illegally taken ; though not as distress, upon surety that such owner will pursue his action against him who distrained, and if such own- er shall not pursue his action, a judgment shall be rendered against him, that he who took the distress, shall have it again. (a) The surety for prosecution, is said to be by com- mon law i and the surety for return, by statute.(fe) The process of replevin is at common law, by writ Writ * out of chancery ; and by statute, either by writ, or complaint to the sheriff.(c) A writ of replevin in cases of distress, is granted Gl ? ut °* O un*ir_ as a matter of right ; so that if a man grants a rent (a) Co. Lit. 146. Vir. Abr. Repl. B. pi. £. (A; Ibid (c) Ibid. St. N. Y. I. 96. St. M. I. St. V writ. REPLEVIN. SHERIFF, CORONER & CONSTABLE. with clause of distress, and that such distress shall be irrepleviasble, yet it may be replevied. (d) Where the sheriff makes deliverance by virtue of an original writ or plaint in replevin, he must take sufficient sureties to prosecute the suit, and to return the beasts or goods, if return thereof shall be ad- judged. If he omit to take any sureties, or if he take such as are insufficient, he is liable to the de- fendant, to the amount of such beasts, goods, and chattels ; and the person who distrains, shall have recovery, by writ, that so many beasts, goods, or chattels, be rcstored.(e) It is a general rule that the plaintiff must have the property of the goods in him at the time of taking, to maintain replevin. But that may be either a gen- eral property which every owner has, or a special property, suck as a person has in goods pledged to him : or who has the cattle of another to manure his lands, bio. on either of which the party may bring replevin, ffj But if the plaintiff has not the imme- diate right of possession, replevin cannot be sup- ported. (g) lu a special case, one may have replevin of goods/ though they were not distrained; as if the mesne put in hi* cattle iu lieu of the tenant, per avail, whom he is hound to acquit, he shall have a replevin of theni.(/j) % it!) Co. Lit. 14.V St. N. V. I. 96. St. M. I. St. V. (r. IV. JSJ-, 385. (O^o Lit liJ. N Dal, Sher. 214. SHERIFF, CORONER & CONSTABLE. 231 None but a party to the replevin shall have the writ de proprietate probanda : and the sheriff must return the claim of property on the pluries, before Which time the writ de proprielale probanda docs not issue. But if the defendant claims property in replevin, the plaintiff may have the writ de proprie- tate probanda, without continuance of the replevin ; because, by the claim of property the first suit is determined, (v) Upon a replevin directed to the sheriff, it seems that he need not return the writ until the plurics replevin : but if at the pluries he do nothing, an attachment shall go against him to the coroners. It also seems that the writ de retorno habendo, is not returnable.(tt>) If on the pluries replevin, the sheriff return that the cattle are eloigned to places unknown, &c. so that he cannot deliver them to the plaintiff, there shall issue a withernam directed to the sheriff com- manding him to take the cattle or goods of the defendant and detain them till the cattle or goods dis- trained be restored to the plaintiff; and if upon a with- ernam a nihil be returned, then an alias and pluries re- plevin shall issue, and so to a capias and exigent.(x) Cattle taken in withernam may be worked ; or if cows, may be milked, for the party has them in lieu of his own ; and on that account is not entitled to pay- ment of the expenses of their kceping.(y) (u) Bac. Abr. IV. 3S1. \zv) Dalt. Sher. 273, 274. (x) F. N. B. 75. (y) Bac. Abr. IV. 379. REPLEVIN. 232 SHERIFF, CORONER & CONSTABLE. rEPLEvis. if a retorno hahendo be awarded to the sheriff, and after, a writ of deliverance be prayed out by the plaintiff, this is a supersedeas to the retorno hdbeudo, and closes the sheriff's hands from making any re- turn thereto. If the sheriff will not execute the writ of second deliverance, the party has his remedy against him.(x) If the party who distrains, convey the distress into any house or other place of strength, and refuse to suffer them to be replevied, the sheriff may take with him the posse CGmilalus, and on request and refusal may break open such house or other place of strength, and make deliverance. And if the sheriff return that the beasts or goods are inclosed in a house or other place of strength, so that he cannot make deliverance, he shall be amerced, and another writ of replevin awarded. («) If the sheriff come to make replevin of beasts in another's soil, and the place be enclosed, and has a gate open to the enclosure, he cannot lawfully break the enclosure and enter thereby, when he may euter by the open gate; but if the owner of the soil hinder him, so that he cannot cuter by the open gate for fear of death, he may break the enclosure and enter therc.(fc) If the sheriff be shown the goods of a stranger and he take them, an action of trespass lies against him : otherwise the stranger can have bo remedy, because he cannot have the writ de proprietate prO- iz) Hac. Al>r. IV. 37?. ('/) Ibid. 3S1. CO Ibid. 35-i. SHERIFF, CORONER & CONSTABLE. 333 banda.(c) Nor does the writ de proprietate prolan- iwwrw. da lie upon replevin by plaint (d) If the sheriff return that the distress is eloigned to a place unknown, the return is good, and the party must pursue his writ of withernam ; but if the sheriff return that the beasts are eloigned to places unknown within his county, he shall be amerced ; for the law intends that he has notice in his county.(c) Nor may he return that the beasts are enclosed in a house or other place of strength ; for he ought to take the power of the county and make deliver* nncc.([fj Nor may he return that there are no such cattle or goods found within his bailiwick ; but if such be the fact, he must return that the beasts are eloign- ed.^) Nor must he return that the defendant did not take the cattle. (/i) But he may return that no one came on the part of the plaintiff to show him the cattle : yet it seems that the sheriff need not require this.(i) So he may return that he came to the place, but could not have sight of the cattle, (j ) The sheriff may return that the cattle are dead, or that he from whom they were detained, had re* (c) Bac. Abr. IV. 384. Dal. Sher. 277. Com. Rep. 59« f ((/) Com. Rep. 596. (<■) Bac. Abr. IV. 383, 384. (/) Ibid. 383. (g) Dalt. Sher. 276. (h) Bac. Abr. IV. 384. (0 Dalt. Sher. 277. Bac. Abr. IV. 384. (J) Ibid. 276. TOE. I. 31 234 SHERIFF, CORONER & CONSTABLE. BEFLTVIX. taken them, and vet sues a replevin; but in the latter ease the sheriff must return the special mat- ter.^) So he may return that the defendant claims pro- perty in the cattic.(Z) The officer who serves a replevin, need serve it on such cattle only as the plaintiff designates and shews to him ; and not upon such, unless they are the plaintiff's, of which the officer ought to he well ascertained; as a deliverance of other cattle is at the peril of the officer.(m) If there he a dispute about the seizure of cattle ia a high way, upon which application is made to A. a stranger, who permits B. (upon security given to him to return the cattle to him who has right,) to t]rpasture the cattle in the mean time, till the con- test is determined ; and thereupon the servants of A. seize the cattle for the use of their master, replevin dqcs not lie against A. and he may plead non cepit.(n) In the case of Richards against Acton, it was held by the court, that the high sheriff, under sheriff, and replevin clerk, who is their deputy, are all an- swerable to the defendant in replevin, for the suffi- ciency of the sureties.(o) But in an action against the v he riff for taking insufficient pledges, the plain- tiff < sannot recover damages beyond the value of the distres9.(p) If the sheriff neglect to take a re- (*) Da!t. Slier. 277. (.') Ibid. 276. Ibid. 77. .;.,) Com. Dig. IV. 435. .'. Rep. II. 1220. lp) Term Rep. IV. '..'>•. SHERIFF, CORONER & CONSTABLE. 235 plevin bond, the court will not grant an attach- ment, but leave the party to his action.((/) In a case in the court of common pleas, it has been determined, that in an action on the case against a sheriff for taking insufficient sureties in a replevin bond, knowing them to be insufficient at the time of taking, the sheriff is liable to the full amount of the damage sustained, though it exceed the penalty of the bond ; that is, for more than double the value of the goods distraincd.(r) Yet in a still later case it was determined by tho same court, that for taking insufficient sureties in replevin, the sheriff was liable in damages to the extent of double the value of the goods, but no further.(*) The action on the case against the sheriff for taking insufficient sureties in replevin, ought to bo brought by the person making cognizance, where there is no avowant upon record. (f) In the proceedings against the sheriff some evidence must be given by the plaintiff of the insufficiency of the sureties ; but very slight evidence is suffici- ent to throw the proof on the sheriff; for the sure- ties are known to him, and he is to take care that they are sufficient.(u) If sufficient sureties are taken in replevin, and the defendant recover costs thereon, the court will not (?) Ter. Rep. 1 1 .617. (r) Hen. Black. 11.36. (s) Ibid. 547. (0 Bos. and Pul. I. 378. («) Bui. N. P. 68. Esp. Dig. 343. BEPLEVIN. m SHERIFF, CORONER k CONSTABLE. replevin, order the sheriff who took such sureties to pay such costs, but leave the party to his action. (v) In the state of Massachusetts : Replevin lies at common law, for him who has the general or special property in chattels, against him who has wrongfully taken them ; but chattels in the custody of the law cannot, at common law, be replevied. As a general principle, the owner of a chattel may take it from any person whose possession is unlawful, unless it be in the custody of the law, or has been taken by replevin from him by the party in possesion. The statute of 1789. c. 26. s. 4. authorises the suing out a writ of replevin against tlie sheriff for chattels which he has attached or seized on execution, pro- vided the plaintiff in replevin be not the debtor. (a) If the plaintiff in replevin become non suit, the defendant recovers judgment for the return of the goods, and damages, to the amount of six per cent, on the penal sum of the bond, as well when taken on mesne process as on execution. If the plaintiff attaching, fail to support his action, the officer is then accountable to the defendant whose goods he had attached, and is to pay over to him the six per cent, damages recovered, and deliver the goods. In case of seizure upon execution, the officer is liable to both the creditor and the debtor. To the creditor to the amount of his judgment, and to the debtor for what may remain after satisfying such judgments The officer being merely a trustee, er indemnifying himself is accountable over.(ft) (r) fios. andPuil. 39$. («) M.T.R. V. 283, 2B4. • II. I. 4-2). SHERIFF, CORONER k CONSTABLE. 237 If A. and 15. are tenants in common of a chattel f*^"» which is wrongfully taken by C. A. cannot alone main- tain replevin for his right to, or his part of the chat- tel. For in replevin, which is founded in property, the chattel is to be delivered as well as damages reco- vered. The sheriff cannot sever the chattel and deli- ver a part, but must deliver the whole of it, or none. And if he deliver the whole to the plaintiff, he being but a part owner, must receive an undivided part in which he claims no property, and of which the sheriff cannot lawfully make deliverance.(c) In replevin, the authority of the officer to re* plevy and deliver the goods to the plaintiff is con- ditional. The plaintiff must first give him a bond with sureties, in the penalty and with the conditions required by the writ. If the plaintiff give him this bond, yet the goods are irrepleviable if they are distrained as the plaintiff's on mesne process, war* rant of distress* or on execution ; and if the officer deliver goods so detained, he is a trespasser, the writ being no justification to him. He must also, in his return, give a description of the bond taken, so that it may appear that it is a bond, in oonformi* ty to the statute, and the directions in the writ.(d) In the state of Connecticut every man may replevy his cattle, Or other goods and chattels impounded, distrained, attached, seized, or extended ; (unless it be upon execution after judgment, or in payment of fines and rates, or for some case or matter cogni- zable and triable before the admiralty courts ;) pro* (c) M. T. R. II. 509. (rf) Ibid. III. 310. 238 SHERIFF, CORONER & CONSTABLE. "JI^S vided he give sufficient security to prosecute his replevin to effect : and to satisfy and answer all such damages, demands and dues as the adverse party shall hy law recover against him.(r). In this state, heasts taken damage feasant, and goods attached on mesne irrocess, are the only cases in which writs of replevin are issued. The writ for replevying beasts taken damage feasant, contains a declaration in trespass against the distrainor for taking the beasts, and is returnable to some court for trial. The authority signing the writ must take bonds to the defendant, sufficient to respond all dam- ages he may sustain by losing his hold upon the dis- tress ; which is not to be returned, though lawfully distrained. The defendant in mesne process t whose goods are attached, may alone sue out a writ of replevin for them 5 a stranger, whose goods are wrongfully attach- ed as the goods of the defendant, has his remedy only in an action for damages. A writ to replevy goods attached, is merely a mandatory precept di- rected to the officer who served the attachment, and holds the goods 5 him commanding to redeliver the goods to the defendant, from whom they were taken : and to give notice thereof to the plaintiff. Bond with surety, must be taken to the plaintiff in the original action by the authority issuing this writ, sufficient to answer the value of the goods replevied: but no declaration accompanies the writ, nor is any person to answer to it in court, though returnable with the original writ on which the goods were attached. (J) (r) St. C. 575. (/) Swift. Sys. II. 88, 93. Kirb. 276. Root. I. 56. SHERIFF, CORONER & CONSTABLE. 239 In neither case is the sheriff or constable to judge rbplevis. of the sufficiency of the bonds : that is the pro- vince of the authority signing the writ, who must, at his peril, take sureties, apparently sufficient at the time of taking, or be liable in damages to the party injured. The bond of the defendant in a writ on which his goods are attached, is clearly insuffici- ent ; and the authority taking such bond only, is liable for such insufficiency, (g J- , {g) Root. L 165. CHAP. VI. DE HO MINE REPLEGIANDO. homine TJ±fe£ writ de homine replegiando, lies to replevy a 'man out of prison, or out of the custody of any private person, in the same manner that chattels taken hy distress, arc replevied, upon giving security to the sheriff that the person to he replevied shall be forth coming to answer any charge against him. If Hie person he conveyed out of the sheriff's ju- risdiction, he may return elongatus; upon which a capias in withernam issues, to imprison the defend- ant without hail or mainprise, till he produce the party.(a) If the sheriff return non est inventus, upon the capias in withernam for the body, the plaintiff shall have a capias in withernam of the goods of the defendant, (b) According to Dalton, formerly in England, tho sheriff might return on a writ de homine replegiando, that the defendant claims the plaintiff as his vil- lain. If that be good) it seems that in those states where slavery is yet recognized, a return that the defendant claims the plaintiff aa his slave, would also be good. {a) 1)1. Com. II r. V19. V, N. B. 65. (b) Dalt. Slier. 259. CHAP. VII. OF HABEAS CORPUS. THERE arc various kinds of writs of habeas cor- habeas cor- pus made use of by superior courts of law, for re- moving prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum ; when a man has a cause of action against one who is confined, by pro- cess of some inferior court, in order to remove the prisoner, and charge him with a new action at the court above. Such is that ad satisfaciendum where a prisoner has hand judgment against him in an infe- rior court, and the plaintiff is desirous to bring him up to some superior court, to charge him with pro- cess of execution. Such, also, are those ad prose quandum, testificandum, deliberandum, &e. which is- sue when it is necessary to remove a prisoner in or- der to prosecute, or to testify in any court, or to be tried in the proper jurisdiction wherein the fact was committed. Such, also, is the common writ ad fa- ciendum et recipiendum, which issues from a superior court when a person is sued in an inferior court, and is desirous to remove the action into a superior vol. I. 32 PUS 2*2 SHERIFF, CORONER & CONSTABLE. habeas cor- court. («) All of which must be obeyed by the offi- cers or persons to whom directed, if issued from courts of competent jurisdiction, unless a sufficient excuse can be returned. But the great and efficacious writ in all manner of illegal confinements, is that of habeas corpus ad subjiciendum, often called habeas corpus cum causa, directed to the person detaining another, and com- manding him to produce the body of the prisoner, with the day and cause of his caption, to do, submit to, and receive, whatsoever the judge or court, award- ing such writ, shall consider in that behalf. This writ issues as well in vacation, as in term time. If it is- sue in vacation, it is usually returnable before the judge who awarded it, and he proceeds by himself thereon, unless the term should intervene ', and then it may be returned into court.(&) This writ at common law was awarded in England by cither the court of chancery, or court of king's bench ; and when issued in term time, it is necessary to apply for it by motion* to the court ; and before a judge reasonable cause must be shewn, and this seems the more proper, because when once granted, the person to whom it is directed can return no satisfac- tory excuse for not bringing up the body of the pris- oner.fe) Where a probable ground is shown, that the party is imprisoned without just cause, an habeas corpus is then a writ of right, and may not be deni- * If the prisoner lie committed for a crime, a motion is necessary ; but if otherwise imprisoned on a civil afl'air ojily, lie may have the writ without, ol < oar« , ami as matter of right. 1). Mod. 306. («) B1.COOI. III. 129, 130. (h) I hid. 131. (.) Ibid. 13'2. Bac. Abr. III. 3. Cro. Jac. i43. SHERIFF, CORONER & CONSTABLE. 243 I"JS cd.(d) Such seems to have been the outlines of the habeas cor. common law on the subject; but a variety of pitiful evasions having been adopted by the courts, to avoid allowing to the subject the full benefit of this writ, gave rise to successive statutes which were also evaded or abused, until the oppression of an obscure individual gave birth to the famous habeas corpus act of the 31. Car. II. c. 2. in which it was, among other things, in substance enacted, " That on complaint or request, in writing, by or on behalf of any person committed and charged with any crime, (unless committed for treason or felony plainly epxressed in the warrant, or as accessary before the fact to any petit treason or fe- lony ; or upon such suspicion of such petit treason or felony plainly expressed in the warrant ; or unless he is convicted or charged in execution by legal process,) the lord chancellor, or any of the twelve judges in vacation, upon viewing a copy of the warrant, or affi- davit, that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award an habeas corpus for such prisoner ; returnable immediately before himself or any other of the judges, and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. That such writs shall be endorsed as granted in pursuance of this act, and signed by the person awarding them. That the writs shall be returned, and the prisoner brought up within a time limited according.to the distance, not exceeding in any case twenty days. That offi- cers and keepers neglecting to make due return, or not delivering to the prisoner or his agent, within six hours after demand, a copy of the commitment, or shifting the custody of a prisoner from one to another* (rf)Bl.Com, 111.13*. : , | SHERIFF, CORONER & CONSTABLE. haseas co:i- without sufficient reason or authority specified in the net, shall, for the first offence forfeit 100L and for the second 200/. to the party grieved ; and he dis- abled to hold his oiBce. And that any such pris- oner may move for, and obtain his habeas corpus as well out of the chancery or exchequer, as out the kind's benoh or common pleas; and that the lord chancellor or judges denying the same, on sight of the warrant, or oath, that the same is refused, for- feit severally to the party grieved 500/.(/') It is fur- ther provided in the same act after the assizes pro- claimed for the county where the prisoner is detain- ed, no person shall be removed from common gaol upon any habeas corpus granted in pursuance of said act : but upon such liabeas corpus shall he brought before the judge of assize in open court, who shall thereupon do what to justice shall appertain.^fj Whenever a person is imprisoned, w hether it be by one concerned in the administration of justice, as a she; iff, gaoler, &c. or by a private person, such as a doctor of physic, who confines a person under pre- tence of curing him of madness, &c. the habeas cor- pus must be directed to him.(g) If an habeas coitus he directed in the disjunctive, to the sheriff or gaoler, it is bad. "Where a man is taken on a warrant of the sheriff, in pursuance of a writ to the sheriff, the luibuis corpus ought to be directed to the sheriff; for the party is in his custody, and the w i it itself must be returned: otherwise, where one is committed to the gaoler immediately, as in eases criminal. (/i) (r) m. Coin. 111. 13$, 136, 137. (/) Bac. Aln. 111. 9. (*)lbW. (><) Ibid. 10. Salk. 550. PUS. SHERIFF, CORONER & CONSTABLE. 24* The writ must be returned by the person to «ab*as cor. whom it is directed. When a writ of habeas cor- pus was directed to the sheriff of , who be- fore the return left the office, and the new sheriff returned that the prisoner was so sick, &c. it was held not to be good ; for the return ought to have been by the old sheriff, that he had had the body, and delivered it to the new sheriff, who ought to have returned languidus.(i) If an habeas corpus be served upon an officer who has the custody of, or left at the gaol, with the un- der keeper, &c. he must return it according to the statute prescribing and limiting the time of such re- turn, where any is in force, and where, uot accord- ing to the directions in the writ. On a habeas corpus granted by a judge in the va- cation, returnable immediately before himself at his chambers, the party may be brought into court. (j) At common law, if an habeas corpus be not return- ed, an alias and pluries issue ; if they disobeyed, an attachment is awarded of course. The court may also make a rule on the officer to return his writ ; and if such rule prove ineffectual, the court may pro- ceed as in other cases of disobedience to any other rule.(Ar) As a gaoler, &c. is obliged to bring up the prisoner at the day prescribed by the writ, it is no excuse for not obeying a writ of habeas corpus ad subjiciendum, that the prisoner did not tender, or refused to pay (i) Bac. Abr.. III. 10 Salk. 350. (j) Com. Dig. III. 456. Ik) Bac. Abr. III. 10. L«v. II. IC9. 246 SHERIFF, CORONER & CONSTABLE. ■abbas coi- the fees due to the gaoler. Nor is the v ant of such tender an excuse for not obeying a writ of habeas corpus ad faciendum et recipiendum. But if the gaoler bring up the prisoner by virtue of such ha- beas corpus, the court will not turn him over till the gaoler be paid his fees.(i) For a false return there is regularly no remedy against the officer but an action on the case, at the suit of the party grieved, and an information or in- dictnient.(wi) If a gaoler return one languidus, where the party himself brings his habeas corpus, and is in good health, an attachment shall issue against him : other- wise, if the habeas corpus be brought by anothcr.(ti) The return to an habeas corpus ought to show the day of caption, and cause of commitment and detain- er, specifically and eertainly. If the return be, that the prisoner was committed for a contempt, in not performing an order between A. and B. made upon the third day of May, it will be good. So it will, if committed for not performing an order of the cxcIm ■(pier for payment of a fine, without saying for what cause imposed, for it is a court of justice. Or for suspicion of treason, without saying what spe- cies of treason. (o) \\ fan !i ■ commitment h in court to a proper officer then present) there is no warrant of commitment, and therefore he can n ot, upon n habeas corpus, re- turn a variant in hac nrbu ; but he must return the Abr. 111. 10. Show. II. 178. Jon. II. 173. (•n) llml. II. Sulk. 3 (-) Ibid. III. II. ' ml Dig. Ill ■ . • - ; r . ••>)•;, "~°. SHERIFF, CORONER k CONSTABLE. **7 truth of the whole matter at his peril : hut if the UA »« p A * s coa * commitment be to one who is not an officer, there must be a warrant in writing ; and where there is, it must be returned : for otherwise, it would be in the power of the gaoler to alter the case of the, pris- oner, and make it either better or worse than it is on the warrant. (») A return, that before the delivery of the writ he had delivered the woman to her husband, and knows not where she is, is a good return. (g) It seems that before the return is filed, any defect in form, or the want of an averment of matter of fact, may be amended ; but this must be at the peril of the officer, in the same manner as if the return were originally what it is after the amendment : but after a return is filed, it becomes a matter of record of the court, and cannot be amended.(r) Though on an habeas corpus to produce the body, with the cause of taking and detaining, it was held, that the party must return an answer to the taking, as well as detaining; and that a return, as to the de- taining, was no answer, as to the taking ; yet it was permitted to amend the return in court by denying the taking also.(s) A return, that " I had not at the time of receiving this writ, nor have I since had the body of the with- in named M. Grey Goose, detained in my custody, so that I could not have her before the within named W. H. Ashurst, as I am within commanded," is an equiv- (p) Salk. 349. (q) Stra. I!. 15 (r) Bac. Abr. III. If. (y) Bl. Rep. II. 1204. 248 SHERIFF, CORONER h CONSTABLE. PI'S. habeas c«r- oeal return, and does not deny the having the party, but only the detaining her.(f) It seems a sufficient return to an habeas corpus, that the defendant is in custody under the sentence of a court of competent jurisdiction, to inquire of the of- fenee, and to pass such a sentence, without setting forth the particular circumstances necessary to war- rant such sentence. («) In the state of New- York : On a writ of habeas corpus the sheriff must return all the the facts as they truly are. And set forth the true cause of cap- tion and grounds of commitment, and detention, the original attachment and subsequent orders, if any have been given, together with all other pro- ceedings relative to such detention ; that the whole may be examined by the court. A prisoner commit- ted by an order of the court of chancery, and dis- charged by a judge of the supreme court in vaca- tion, may be again committed for the same cause. And a commitment until further order of the court, is good.(a) In the state of Connecticut, one or more of the judges of the supreme court may issue the writ of habeas corpus, and proceed thereon according to la\>(6) All persons detained in gaol for trial of an offence not capital, arc entitled to bail, to be taken by one or more of the judges of the court having jurisdic- tion of the offence. (e) (/) Ter. Rep. V. 89. (i/) Eaxt. I. 306. („) Johns. Rep. IV. 317. (6) St. C. 19. ( ) Ibid. SHERIFF, CORONER k CONSTABLE. 2*9 If a debtor, imprisoned on oxecution admitted to«"«» «»■ take the oa(h provided by law for the relief of poor prisoners, be detained in gaol after the ereditor has omitted to furnish the support by law allowed, though for ever so short a space, in which the debtor is entitled to his regular meals, and which, if he obtains, is at the expense of some person other than such creditor, such prisoner is entitled to his dis- charge by the gaoler. And though the creditor, after such omission, while his debtor is yet in gaol, deliver to the gaoler money to reimburse the expence of such support during such omission, and sufficient for the future support of such prisoner, yet such prisoner may be discharged on a writ of habeas cor- pus.^) But in a case where a deputy sheriff committed a debtor in execution, and omitted to leave with the gaoler a copy of the execution, and such debtor after several weeks, demands of the gaoler to be discharg- ed from his imprisonment, and the officer who levied such execution, thereupon furnished such gaoler with a defective copy of such execution, and the gaoler continued to hold such debtor in prison, without any other cause or authority therefor, the court would not relieve such prisoner on habeas eorpus.(e)— — Oil* re ? — Can this he law ? In the state of Vermont : The writ of protection ad testificandum suspends all civil process against the subject of it while coming to, and attending upon court, with a '^reasonable time for the witness to re- turn home after the rising of the court. Testimony viva voce is so much to be preferred to depositions, (d) S. C. C. July term 1808. Hubbel vs. Dimon. (e) Ibid. September term 1810. Towsey vs. Dimon. VOL. I. 3$ rft SHERIFF, CORONER & CONSTABLE. <** SEE*?. S&5SC* ^ of u r always recene a arres ted contrary to witness c.«rcd by , , and c0nstrll0ti(>n the letter oi such writ, or suui « If i he wi.ncss will be discharged on a wnt of f , „L«. " and tbe officer making the arrest be habeas corpus , auu wt U mercy for his contempt of the eonrt.^ If a sheriff to whom a writ of habeas «"T».«< L„ is directed, commanding him to bring pro^ucdami dnectca, ^ ^ i„,t i omrbtto be accompanied by affidavits oipiiy but it ougnt iu u r whether tbe bodily the sheriff in his disobedience to the wnt.f S J f HTvl. Rep. 1.2T4. (g) Ibid. 11-269. CHAP. VIII. OF SUPERSEDEAS. nM9»n SUPERSEDEAS is a writ that lies in a great su ^^' many cases, and signifies, in general., a command to what, aud stay some ordinary proceeding at law on good cause 11 * use * shown, which ought otherwise to proceed.(a) A, supersedeas is used for the staying of an execution after a writ of error is allowed and bail put in. But no supersedeas can be made out on bringing the writ of error until bail is given, where there are judg- ments by verdict or by default in debt, 6ce.(6) If an exigent has been awarded against a person, Upon exigent he may have a writ directed to the sheriff, com- manding him, upon the person's finding sureties, to appear at the return of the exigent ; that if he have not arrested him, he do not arrest him, but suffer him to go in peace ; and if he have arrested him, he discharge him. Or the person against whom an ex- igent has been awarded may, upon finding sureties in a court which has power to award a writ of super- sedeas, have such writ directed to the sheriff to the same effeet.(c) (a) P. N. B. 256. (6) Litt. Abr. 543. (0 F. N. B. $9$. 2W SHERIFF, CORONER & CONSTABLE. mum. An express wpemd^w without writ, is where a bv a second order, forbid the do.og of the act.(d) A« if a justiee of the peace have made an .mproper order, he may upon reconsideration, by a second order, supercede the former.(e) ,,,„ .,„.- When a certiorari is granted, the 1™*™^° . .,„„„,*„* out of chancery o he he„ffr/J run And it would seem that a certiorari is itself a super- sedeas, if bail to try eause be given. For it is said that « if one bring a certiorari" to remove an indictment, and do not give bail to try it according to the statute, it is no supersedeases J vvntofcrrof, A writ of error is a su V crscdms by implication, s supersedeas i} lhe clTOrs arc examined ; that is, it is a super- tL. ,ml ' hCa " sedeas to the execution, but not to an action of debt on the judgment. From the time of the allowance, a writ of error is a supersedeas ; but this must be >vlicre execution is not executed, nor began to be ex- ecutcd.(/i) If the sheriff, notwithstanding such Writ of error, proceed to execute a fieri facias, the court will award a supersedeas ; because execution has erroneously issued, -and command a return of the money. (i) M ny b Pg r R „t- A supersedeas is grantablc to the sheriff to stay ed u ( >on ha- . t of an habeas corpus ; and it he return it be8St0r, ' U *' afterwards, and the parties proceed to trial, it i« (J) F. N. B 236. ( t ) Stiaii?;e. 1. 6. (f) V N- P ■'" laV. II. 439. B». fc Pul I. 478. Uos. fc Pul. II. 3W. Btile, -J i*. SIIERIFF, CORONER & CONSTABLE. 253 error j as well as all the proceedings in an inferior *!f™*™*V' court after a habeas corpus delivered, unless a pro- cedendo be awarded ; in which case a supersedeas will not be granted, (j) If a fieri facias come to the sheriff, who seizes *££%« the goods of the defendant, and, while they remain on goods seiz- in the officer's hands, before a writ of error is allow- ed, or a supersedeas issues on such writ of error, and is delivered to such sheriff; he must, notwithstand- ing, proceed in his sale of the goods ; having begun to execute his writ he must complete it.(fr) If a capias come to take the body, and before itJJjS&I*? is executed, a supersedeas comes, the sheriff must fore arrest omit to make the arrest ; but if he has already taken mus^'not P ro- the body, when the supersedeas comes, he must, at cee d,«cc. the return of his writ, return the body together with the supersedeas. (I) A supersedeas was delivered to a sheriff to stay the return of distringas at the assizes, which the sheriff did not obey, but returned it notwithstanding; and it was adjudged error and the judgment revers- ed. Where the sheriff was going to execute an hab. jfac. poss. there came a supersedeas to him, which he refused to obey, and delivered possession. The court granted an attachment against the sheriff, and a writ of restitution to the party. (m) In the state of New- York : If a prisoner in exocu- inNew-Y#rk. tion, who has given security for the gaol liberties, and resides with his family within the limits, obtain (j) Jacob's Law Dictionary, Title Supersedeas. (A) Dalt. Sber. 538, , (I) Ibid. (m) Ibid. 25* SHERIFF, CORONER & CONSTABLE. irpERSEMAs. a wr it of supersedeas, the delivery thereof to tho sheriff destroys the operation of the execution ; and with it the necessity for, and further effect of, the security; so that the prisoner is thereby virtual- ly and legally discharged from imprisonment, and may immediately thereafter leave the gaol liberties. Nor can the sheriff legally prevent his departure. And although the sheriff, on application therefor, re- fuse to discharge the prisoner, unless his poundage fees on the execution be first paid, yet the prisoner cannot maintain an action of false imprisonment against him, if the sheriff do not use any force to detain him in cuslody.(a) (n) Johns. Rep. IV. 32. CHAP. IX. OF RETURN OF PROCESS. A RETURN is the certificate of the officer to re™™ o, rnocEss# whom any process is directed, stating what he has ^~y~^/ done in obedience to the commands therein, or the J^j^jf reason of his neglect, and is often the most difficult part of the sheriff's duty, as the return ought to be both in form and substance according to law : other- wise the officer may be subjected to punishment, and the party employing him to damage. (a) All that the officer is commanded by writ to do, he must perform, and no more ;(b) or show a sufficient reason for his neglect ;(c) and make return of his precept to the proper court, on or before the day mentioned therein for its return.(d) The return must always be attest- ed by the officer who made the servicc,(e ) and must be certain to every intent, (f) If the officer, upon a capias, return that he arrested the defendant at D. and would have carried him to the gaol, and that W. (a) Dalt. Sher. 162. (b) Ibid. 166. (c) Com. Dig. V. 444. (d) Mod. VI. 148, 159, 196,250, () DaK. Sher. 16S. and Yelv. 51. (h) Ibid. 168. (/) Ibid. 164. (J) Ibid. 163. (A)Bac. Abr. IV. 401. (/) Cro. Jac. 419. (m) Yelv-. 51. Com. Dig. V. 439. (*) Ibid. 51. j Com. Dig. V. 440. Str. I. 225. SHERIFF, CORONER & CONSTABLE. 257 return may be made either according lo the fact, or a*™** of as made from the sheriff, by construction of law.(p) PBOCESS. Upon a writ of habeas corpus against a person in of habeas his custody, the sheriff must return the facts accord- corpus * ing to truth, and the cause of commitment, and bring the prisoner into court, or before the judge who has authority to examine and determine the same.(g) In waste, or redeseizin, in differerit towns, the sheriff must go to each, but may make his inquisi- tion at one, and a return that he went to D. and there took inquisition, is good \ for by intendment he might have been to each town, &c.(r) If a sheriffin a writ of account or debt, return non est inventus, and that he hath no lands by which he can be distrained* and a capias issue against the defendant, who is taken thereupon ; when in fact he had goods, chattels, or lands, sufficient, he may have his action against the sheriff for his false return, by writ directed to the coroners.(s) An officer may not return any thing contrary to the verdict of a jury. As where, in an action against executors, who plead that they have fully adminis- tered, and it was found against them, viz. that they have assets remaining, the sheriff, on execution, may not return, that they have not any goods, &c. of their testator. But such verdict, notwithstanding, the sheriff may return that they have not goods, &c. with- in his county.(f) He may not return in replevin, that there were no such goods nor cattle taken ; nor in detinue, that there are no such goods detained ; nor v«l, r. (/OBac.Abr. IV. 403. \q) Dal. Sher. 166. (;■) Ibid. 172. (s) Ibid. 173. (,') Ibid 173. 3* 555 SIXERIFF, CORONER & CONSTABLE. ■CITXHK OF J'ROCESS. in a habere facias seisinam, that there is no such land, he. nor in a writ of seizin, non tenantey in him whom the law supposes to he tenant. (w) if officer if after service of an original writ, the officer turn upon an wake no return, he is liahle to an action by both original hi it :part j es respectively. He may also be liable to both he is liable to r r * " action bybotii parties for a false return.(r) The creditor in an ex- ecution, may maintain his action if the officer return that he cannot do execution on account of resistance* And, the plaintiff in replevin, if the return be, that the cattle are in a fort or castle. (to) If an officer take the body or goods of a defendant on mesne pro- cess, and do not return the writ, the taking is tor- tious ; and the defendant may maintain an action of trespass.^) But the officer need not return a writ of execution Athereon the money is collected, and paid over to the plaintiff ; nor where no inquest is to be taken ; but only land to be delivered, seizin had, or goods sold, ) Ibid. 193. mended by ■ . ui court SHERIFF, CORONER & CONSTABLE. 253 PROCESS. hands of the new sheriff, he is not eoncluded by the old sheriff's return ; but may return that his prede- cessor did not take the goods, &e. But if the old sheriff return a juror in issues, the new sheriff may not on the distringas, return the same juror nihil; but must return such facts relative thereto, as have intervened between the time of the return made by the old sheriff, and that made by the new.(ft) The sheriff may return that he had taken the body SrfthSb. of the defendant, and that he is detained, (in such has taken ti>« iii ., . N builv, and the prison or gaol or elsewhere, as the case maybe,) so prisoner sick, sick that he cannot be had in court without danger &c ' of his death.(c) So he may return that during the whole time he held the writ the defendant was under •the protection of the court(specifying the particular court) as a party, juror, or witness therein, as the case may be.(d) If the sheriff before the return day of the writ, make return that the defendant has no goods, &c. it is void ,• for though he may have none at that time, yet he may have before the re- turn day.(e) If the officer return that he has attach- ed cattle to the value of £10, and does not set out what the cattle are, it is h&d.ffj If the return day of the writ be Sunday, and the return appears to be made on that day it will be bad ; nor can it be made on any day subsequent, fg ) The sheriff may return that he was always ready " a w 'itof to deliver seizin, &c. and gave notice such a day, pievin. but the plaintiff did not come to receive it. And in replevin, that no one came to show him the cattle* (b) Dalt. Sher. 193. (c) Ibid. 211. (d) Com. Dig. V. 448. (e) Cro. Eliz. 512. Com. Dig. V. 446. (/) Ibid. 513. (g>Mod. V. 148, 159. 260 SHERIFF, CORONER & CONSTABLE* return of And on a writ which says, " if the plaintiff make PP O CFSS you secure," &c. that the plaintiff did not find pledg- es. But the sheriff may not return that he could not have view of the premises : nor that he could not have sight of the cattle : nor that the plaintiff did not prosecute his writ : nor that he had levied the goods on an execution, and afterwards lost them : nor that they were rescued : nor non est inventus, on a writ delivered to him against his bailiff.(ft) A return is sufficient, if it can be ascertained by the writ.(i) sheriff may if the writ command the sheriff to attach J. L. ment made and the sheriff return that he has caused J. L. to be by his orders.j^gj^ or tlmt j L is attached, it is good ; for the sheriff is not bound to execute the writ in per- son, but may do it by deputy. And a return upon a capias, that the defendant is taken, is sufficient. And upon a scire facias, if the sheriff return, that by virtue of this writ, as to me commanded, I hav« caused A. B. to know, &c. it is good, without des- cribing A. B. as within named, fjj trpou a grand ^ return upon a grand cape, ccpi in manus, &c. if it say nothing as to the summons of the tenant, is bad. And so is a return upon a scire facias against an heir and tenants, if it say nothing as to the heir ; and if the sheriff upon a petit cape, where the count was for a house and stable, return that he has taken the house, and say nothing as to the stable, it is not good.(fe) (//) Com. Dig. V. 444, 445. (,•) Ibid. (y)Salk. II. 589. (*) Com. Dig V. 446. SHERIFF, CORONER & CONSTABLE. 261 The sheriff cannot make a return contrary to his return op I'ROCHSS. former return upon record. As, it he return upon k^-v**^ a venire facias twelve jurors, he cannot say upon a SSTeMtr*. distringas that one has nothing. If he has returned • y to a former a distress, he cannot upon the grand distress, alias,™ urn or pluries, say that the tenant or defendant hath nothing by which he may be distrained. If upon a capias for a fine, the sheriff return cepi, he cannot on the ca. sa. return non est inventus. But he may make a return variant from a former, but not re- pugnant to it. As he may say, evicted by an elder title mesne between this and the former writ, and so has nothing,* or that he held land for the life of another in the right of his wife, &c. who is now dead.(J) Though a return cannot be made contrary to a °/ t0 matter ° "of record. matter of record, as in the case of a verdict against executors on pkne a&ministravit, he cannot return a nulla bona teslatoris but may return nulla bona in his bailiwick on a devastavit.(m) If there be judgment against A. G. widow, and a ca. sa. thereon, and before the execution of the writ, she marries B. the sheriff cannot return that she is now the wife of B. for that falsifies the writ and record.(?i) In the state of New- York it is not requisite to the InNew ' Yo * proceedings on execution, that the writ should ever be returned ; nor is it requisite, even if a return be made, that the sheriff should specify with certainty the particular lands sold, or the name of the pur- (l) Com. Dig. V. 446, {m) Ibid, In) Ibid. 447. £62 SHERIFF, CORONER & CONSTABLE. return of chaser. It is sufficient to state, that of the land I PROCESS. and tenements of the defendant, he caused to be made the debt and damages spceifledsin the writ, as he was thereby commanded. («) By under A return by an under sheriff in his own name, is own name, is not a return in the name of the sheriff. AVhen a man not a return, aets j n contemplation of law, by the authority, and in in name of * " * . the sheriff, the name of another, if he do an act in his own name, although alleged to be done by him as attor- ney, it is void. (b) Upon execu- jf ^ e re turu of the sheriff on an execution levied tion levied unon lands, upon lands, in effect, show that there were no goods or chattels belonging to the defendant, it is good. But the sheriff's return is not essential to the title of the purchaser. Such title is not created by, nor de- pendant on, the return, but is derived from the pre- vious sale made by the sheriff, by virtue of his writ. It is sufficient for the purchaser that the sheriff has competent authority, and sells and executes a deed to him. The proceedings in the case of an extent upon an elegit, do not apply to the writ of Jleri facias. On the writ of elegit no sale can be had ; but the sheriff takes an inquisition by a jury, who set off moieties by metes and bounds. The inquisition is then necessary to be returned 5 and together with the return constitutes the title. The sale and. the sheriff's deed arc sufficient evidence of the title. If the purchaser can show that the sheriff had authority to sell, it is enough ; he need not look further.(c) (a) N. Y. T. R. 63. (b) IWd. '' . ' >hns, l'ep. I. 155. SHERIFF, CORONER & COXSTABLE. In Massachusetts:* The officer who levies an * ETin: ' f ' execution upon land. must,, in his return, specifically <^-v-**-> set forth a substantial compliance with each par-^ assacLu - ticular acquirement of the statute authorizing such levy, and prescribing the mode of proceedings therein: otherwise the levy will be void, and no title to the land be thereby acquired by the crediior.(d) In the state of Connecticut an officer's return in Connecti- ■ viiii j ii ■ • c,,t > must must show, not only that he has (pursued the airee- S h 0W the writ tions in the writ, but that he has executed it ac-to have been cording to law. It must be good in substance and cor( i m .r l0 form, or he cannot, in an action brought agaiust law - him, be justified by it; and though such return may be falsified, yet it is prima facie evidence of what it pnrports, but no more.(t) If an officer who has served a writ of attachment Ma y be raade to the house and taken the property of the defendant, return the f the clerk, writ to the house of the clerk, and in his absence ^ c * deliver such writ to the wife of the clerk, inform- ing her what it is thus delivered to her, it is suffici- ent to "exonerate the officer in an action for not re- turning the writ according to the statute, making it his duty to return all writs by him served, to the clerk of the court to which such writ is return- able, (fj If process issue against two defendants, and one of them is described as living without the official precincts of the officer who makes the arrest, and * The principles of this case apply as well in Connecticut, New- Hampshire, and Vermont, as in Massachusetts. t {d) M. T. ft. II. 134. (e) Root. 1.526. ( f)D»v. II. 4S0. l'ROCESS. S64 SHERIFF, CORONER & CONSTABLE. return of he dates his return within his official precincts, and proceeds, « Then for want of goods or estate, &c. I attached the hodies of the said A. and B. within named, &c." the return is prima facie evidence that both the defendants were at the time of the ar- rest, within the precincts of the offieer who served the writ ; and good until it be proved that the arrest was made without his precincts. (g) (g) Root. I. 526, CHAP. X. GAOLS AND GAOL LIBERTIES. A GAOL is a place authorized bylaw for the con- gaols, &c. finement of prisoners by virtue of legal process. By What and the common law, every county ought to have two how provided. gaols.(a) One for prisoners committed for debt, which might be in any house the sheriff should please to appoint, and which he might remove from One place to another within his county at his pleasure, to which no liberties were attached ; but within the walls of which he must keep the prisoners in strict and safe custody, (6) and might not suffer them to go at large, or at their liberty, neither within the pris- on nor without the prison. (c) The other was a gaol for the confinement of persons committed for some criminal offence, which was the county gaol.(d) The Marshalsea and Fleet prison are under differ- ent regulations, according to the discretion of the courts to which they respectively belong ; and to which, rules somewhat extensive have been annexed $ (a) Bac. Abr. III. 443. (6) Ibid. M. T. R. III. 8G— !06. (c) Dal. Sber. 485. \d) Bac. Abr. III. 443. TOI., I. 35 266 SHERIFF, CORONER CONSTABLE. r.Aors, Sic. and within which, prisoners are not necessarily so closely confined, as in the sheriff's prison ; it being no escape for the prisoner in the Marshalsea or the Fleet to be aDy where within the rules, though with- out the walls of those prisons.(e) luNew-York, Gaols or prisons, in the state of New-York, are ho* built and erec ^ e j under the authority of the legislature by spe- repaued. ° x eial acts empowering the supervisors of the county w here a gaol or prison is to be built, to levy and raise upon the inhabitants of such county a specific sum, authorized by such act for the purpose, ffj But gaols or prisons when built, are kept in repair by the su- pervisors of each county, whose duty it is from time to time as occasion requires, to direct to be raised and levied on the freeholders and inhabitants of the county, a sufficient sum of money for making ne- cessary repairs to the gaols therein.^) When the gaol or prison of any county in this when uv- state is destroyed, or rendered unfit for the confine- stroyed, &c men ^ f prisoners, the iudares of the court of com- how prisoners * ° ° may be dis- mon pleas of such county, or any two of them, on application of the sheriff, may, by warrant under their hands and seals, fix upon the gaol of some other county as the prison of their said county, for. the con- finement of criminals and debtors, or either of them, or any one or more of them, as shall be expressed in such warrant; and from the granting such Avar- rant, the gaol so named, together with the limits (hereof, is to all intents and purposes, so far forth as such warrant extends, the proper gaol of such coun- (y.(/*) (0 M. T. P. III. lOT.ter. Rep. II. 126. (J) S*. N. Y. III. 177, 178, 179, 180. {•■) Ibid. 1.563, 564. (A) Ibid. V. |02, 103. SHERIFF, CORONER & CONSTABLE. 267 The court of common pleas of such county, may, caols, & c . at any time after the granting of such warrant, on application of the sheriff, modify or annul the same, as occasion may require ; until their prison shall be rebuilt, or rendered fit for the confinement of prisoners : when the powers of such court and judges, shall cease in relation to granting or modi- fying such warrant, and the sheriff must forth- with remove the prisoners in hi3 custody, a«d so confined without his county, to his proper gaol.(i) When any such warrant or order is issued, a copy thereof must be served on the sheriff, unde* sheriff, or gaoler of the county, whose gaol is so fix- ed upon ; and from thenceforth it is the duty of such sheriff, under sheriff, or gaoler, to receive into the prison of the county, and safely keep all such persons as may come within the terms or intent of such warrant or order. And such sheriff, under sheriff, or gaoler, as far as respects the persons so to be de- livered to them, is to all intents and purposes, the sheriff, under sheriff, or gaoler, of the county for which such warrant or order is made, (j J The mayor's court in the city of New-York, and Liberties of the several courts of common pleas, of the respective ascertained. counties, are authorized at their discretion to appoint a reasonable space of ground, adjacent to the gaol of the cdty and county of New- York, and of the sev- eral counties wherein each gaol is situated, not ex- ceeding a space of ten acres, and not extending in any direction to a greater distance than sixty rods, to be denominated the liberties of sucli gaol ; and to cause such liberties or limits to be designated by en- closures or posts, or other visible marks placed on (0 St. N. Y. V. 103. (j) Ibid. 103. 36* SHERIFF, CORONER & CONSTABLE. gaois, &c. the outer lines of such liberties, as to them may seem proper, (fe) Within such limits a prisoner committed on any civil process or execution is considered to be in gaol, to all intents and purposes, as though within the actual walls of the prison ,• the liberties being in contemplation of law an extension of the four walls of such prison : nor is it an escape for any such prisoner to be at large within such liberties, though he has given no bonds for the liberties of the prison ; and if such prisoner, not having given such bond, escape, and return with- in the limits again before any action be brought, he is in as though taken on fresh pursuit, and the escape is purged.(f) But if, having given such bonds, a pris- oner escape, he cannot be retaken by the gaoler, nor detained by him, though he voluntarily return ; but is, to all intents, out of gaol, and his bond forfeited, and the sheriff liable for the debt or damages for which he was committed.(w) in Massacim- In Massachusetts : The justices of the ceurt of erected™ and g enera l sessions of the peace, are authorized to as- ^•xuiated. ge ss the polls and estates within their several coun- ties, in such sums as are necessary to erect and keep in repair a good and sufficient gaol in each town, where, by law, a court is to be holden ; and to direct and order the building and repairing of such gaols, according to their discretion : which gaols must be provided with sufficient and convenient apartments for receiving and lodging prisoners for debt, separate and distinct from felons and other criminals. (a) And such justices must, at the beginning of every quarter (k) St. N. Y. V. 509. I. 359, 360. (/) See Escape, ante 169, 17). (m) Ibid. (<>) St. M. T. 219. SHERIFF, CORONER & CONSTABLE. 269 sessions, inquire into the state of the prisons in their **>™*< &c respective counties, with respect to the security of such prisons from escape % the condition and accom- modation of the prisoners 5 and from time to time, take such means as may best tend to secure them from escape, sickness, or infection. (b) And when any escape happens through the insufficiency of the gaol, though the sheriff of the county stands chargeable to the plaintiff, creditor or other person, at whose suit, or for whose debt the prisoner was committed : such sheriff has his remedy over against the county, which must indemnify him there for.(c) The court of general sessions of the peace, must Liberties of, how del mined. also fix and determine the boundaries of the gaol-yards, h appertaining to the several gaols in their respective counties.(d) But such gaol-yard is not an extension of the prison, so that the gaoler may permit a pri- soner to be at large within such yard, without incurring the guilt of an escape, excepting where the prisoner has given bond with sufficient sure- ty or sureties within the county to the creditor or creditors in double the amouut for which he is committed ; conditioned, that from the time of executing such bond, he will continue a true pris- oner in the custody of the gaoler, and within the limits of such prison, until he shall be lawfully discharged, without committing any manner of es- cape. And though, by force of such bond, the gaoler may permit such prisoner to have theliber- ty of the gaol yard in the day time, yet in the night he must be confined in some house or apartment, belonging to such prison, and if found in the night (i) St. M. 221. (r) Ibid, 219, 22©. (d) Ibid. %%Z, 270 SHERIFF, CORONER & CONSTABLE. «oods, &o. time voluntarily without any apartment in or be- longing to such prison, but in the yard appointed to the gaol, it is an escape within the true intent of the conditions of the bond.(c) In Connecti- i n Connecticut: There must be kept and main- erected andtained in good and sufficient condition and repair, i-eguiaud. a common gaol in every county town in the several counties in the state; and there must be two of such common gaols in each of the counties of New-Lon- don, Fairfield, and Middlesex : viz. one in each of the towns of New-London, Norwich, Fairfield, Banbury, Middletown, and Haddam. The whole charge of building, and of keeping such gaols in repair, must be paid by the counties to which they respectively belong. And the assistants and justices of the peace in the several counties are empowered and required to tax the inhabitants of their respective counties, for building, repairing, and furnishing such gaols, as need shall require; and from time to time to order, direct, and take care of the building, and keeping in repair such gaols, (f) "When any county is destitute of a gaol, any per- son in such county, liable to be imprisoned, may, l>y lawful authority, be sent to the common gaol of the next adjoining county; and the keeper of such gaol must receive and keep such prisoner accord- ingly.^) County liable I f any person lawfully committed to any gaol §m e*c«pe . ^ state, either in any civil or criminal case. tlii-'jiigh insuf- * J iinenry of escape, by reason of the insufficiency of such §ML (») St. M. I. fel. it, T. R. III. SG— I0G. (f) .st. <:. 363, 364. (:-) Ibid, 9fi7, SHERIFF, CORONER & CONSTABLE. 271 gaol ; all costs, charges, and damages, thereby in- go ". *"•- curred and sustained by any person, must be an- swered out of the treasury of the county, wherein such insufficient gaol is; unless satisfaction can be obtained out of the estate of the person escaping, or from some person or persons for aiding and assist- ing such prisoner to escape ; which being the case, the county will not be liable.(/i) Though there is no statute of this state autho- rizing the setting out any portion of ground as the liberties of the prison, yet a practice has long since obtained for the county court, to ascertain a certain space adjacent to each gaol in their county, which has been considered the liberties of the prison. And sheriffs and gaolers continually admit prisoners com- mitted on civil process or execution, either on bonds or without, to go at large within such limits. And the superior court has sustained actions on such bonds. In the 16th section of the statute for regulating gaols and gaolers, the gaoler is made liable for an escape for permitting a prisoner committed onexe- cution to go at large w ithout the precincts of the pri- son, fj ) By the 20th section of the same statute, if the sheriff do not confine within the walls a person committed on execution fordebt, damage, line, or cost, when so ordered by the superior or county court, as the case may be, such sheriff is guilty of an eseape.(fc) Liberties of, These sections plainly recognize a right in tnc [' °* e " ccr ~ sheriffs tfc permit prisoners, under certain eircum- {h) St. C. 367, 363. see escape, 0)lbid. 3b6. (A) Ibid. 367. 272 SHERIFF, CORONER & CONSTABLE. coodi, cVc stances, to go at large beyond the walls of the prisons 5 y ^ y ^ J an( i p cr haps sufficiently sanction the proceedings of the county courts, in ascertaining and determining liberties to the prisons of their respective counties. The principle that in legal construction, the lib- erties of the prison are an extension of the prison itself, or quasi — an enlargement of the space within its walls, has been so often recognized by the supe- rior court, as far as laid down in the cases of Bona- fous and Walker 9 (2) and by the supreme court of New- York, (m) that such may be considered the law in Connecticut. in New- In New-Hampshire 1 The court of general sessions hoTerectcd of tf» e peace, have the care of building, inspecting, and regulated. an j repairing all prisons; and must, at the begin- ning of every term enquire into the state of the prisons in their respecthe counties ; as to the secu- rity of such prisons from escape, the condition and accommodation of (he prisoners, and from time to time take care to secure them from escape, sickness, and infection. And in case of the escape of any prisoner committed for debt through the insufficien- cy of the gaol or prison, in any county, though the sheriG* stands chargeable to the creditor or person to whose use any forfeiture was adjudged, or any da- mages or costs awarded against such prisoner, for the amount of such damages and costs, yet such sheriff has his remedy against the county, which must eventually indemnify him.(7t) Libert.ei, j„ tf^g stale it is the duty of the justices of the how a»cer- tamed, inferior court of common pleas, to fix and determine the boundaries of (lie gaol yards appertaining to (') fer. Rep I2S, (m) ..''•tins. Rep *ee 'escape, ante 171. St. N. II. 1 J*, 1 SHERIFF, CORONER & CONSTABLE. ST3 the several gaols in their respective counties ; and coobj, &v. to extend the bounds and limits of such gaol-yards v "*~ v " w as far as the local situation of the gaols, and the convenience and accommodation of the prisoners re- quire : provided said yards may not in any case ex- tend more than two hundred rods each way from said gaols ; and the determination of such inferior court, be at all times subject to the controul of the justices of the supreme court of judicature.(o) In the state of Vermont; There must be kept In Vermont, , , . i « /n « • bow erected and maintained, in good and sufficient repair, a com- an( j re5U i ate( j. mon gaol or prison in each shire or county town, at the expense of the county in which such gaol is, or shall be erected j to be defrayed by a tax upon the polls and ratable estate of the inhabitants of the se- veral towns in such county, to be assessed by the representatives chosen to represent the several tpwns in such county, in the general assembly. And at the stated session of the supreme court of judica- ture in each county, the grand jurors impannelled at such court must examine into the situation of the gaols in the several counties ; and if they find any such gaol insufficient, present the same to the court, who must order a record thereof to be made by the clerk, and a copy thereof transmitted to the clerk of the county court in the same county ; and thereupon the sheriff of such county, must, under the direction of one or more of the judges of the county court, proceed to repair such gaol, and his expenses therein, accurately keep and exhibit to the judges of the county court, who must audit the same, and direct the clerk to draw an order on the treasurer of such county, for the sum found due to (o) St. N. H. 196 VOL. I. " fi 274 SHERIFF, CORONER & CONSTABLE. c °^\t$' such sheriff; which treasurer must immediately pay the same. "When any escape is made through the insufficiency of the gaol, the county must be answerable to the sheriff for all legal cost and da- mage, by him sustained in consequence of such es- cape, the sheriff being liable immediately to the party injured by such escape.(p) Liberties,bow rpj ie coun t v e0 urts in their respective counties ascertained. * x must set out yards to their respective gaols for the liberty of such prisoners as may be confined in them respectively, (q) Sec obligations, covenants, and promises. (p) St. V. 517, 318. Fay's impression, 1798. (:+. SHERIFF, CORONER k CONSTABLE. 279 consideration of two shillings, yet, being void and'"" !IIf: *' r,0N *. against the statute for part, it was void in the whole. (s) i So, where J. S. promised a gaoler, if he Mould permit a prisoner, then in his custody, to go at large, that he, J. S. would pay the gaoler so much money : for a breach of which promise an action was after- wards brought, and by the whole court the promise adjudged void.(f) A promise to save the sheriff harmless for the ease and enlargement of a prisoner, is not only within the statute, but void at common law.(n) An obligation taken by the sheriff for the payment of money due to the state on an extent out of the ex- chequer, is not within the statute. (y) If the sheriff arrest a defendant, and B. a stranger, enter into an obligation, conditioned, that the de- fendant shall give security, such as the plaintiff shall approve, for the payment of ninety pounds to him, or shall render his body to prison at the return of the writ, the bond is not void by the statute.(te) So if a capias be taken out against the defendant, and a third person gives the plaintiff a bond that the defendant shall pay the money, or render himself at the return of the writ, it is a good bond, and not within the statute : because it is not bv the direction of the officer, but by the agreement of (s) do. Eiiz. 199, 200. Dalt. Slier. 1524. (0 Dalt. Sher. 524. (u) Co. X. 101, 102. (a) Ibid. 100. (art Mod. II. S04, 305. 280 SHERIFF, CORONER & CONSTABLE. otLlc £™* 9 * the Plaintiff; and there is no law which makes the agreement of the parties void.(a?) A bond taken by the serjeant at arms, attending the house of commons, is not within the statute; but being for ease and favour, is void by the common law.(y) A bond taken by the marshal of the king's bench, for the easement or delivery of a prisoner in exe- cution, is void by the statute, though he be not named in it.(zi) If A. be taken on a ca. sa. and escapes, and be afterwards retaken, and for his enlargement, gives a bond to the gaoler, it is void.(a) If a capias be awarded against B. and before the arrest, or after the return, the sheriff takes an obli- gation for his enlargement, it is void,(6) If the condition of a bond be, to be a true pris- oner, and to pay so much per week for chamber room, it is void. Though a bond for true impris* onment is good, prima facie, yet the defendant may aver that it was given for ease and favour ; and may also make the like averment, if the obligation be given for the payment of money generally.(c) If the under sheriff covenant with the high sheriff to discharge and save him harmless from all escapes of prisoners arrested by the under sheriff, or any by (.r) Mod. II. 305. (y) Keble, 391. (z) Cro. Eliz. 66. («) I.. on, II. IIP. (A) Bac. Abr. IV. 464. Sid. 151, (<•) IbiJ. Raym. $J2. SHERIFF, CORONER & CONSTABLE. 281 kini appointed, this is a good covenant. Eut if the obligations, high sheriff make J. S. his under sheriff, and take v^-^-^ a bond or covenant from him, that he will not serve executions above twenty pounds without his special warrant, this is a void covenant ; because the under sheriff is by law obliged to execute all precepts, as well as the high sheriff: though this covenant is void in law, yet the bond or indenture, as it is not found- ed on the statute, is governed by the common law, and may be good for other covenants therein con- tained. For though if the sheriff take a bond upon the statute of 23. H. VI. cap. 10. for a point a- gainst that law, and also for a due debt, the whole bond is void, the letter of the statute being so : yet by the common law, the bond is only void as to what is against law, and remains good for the rest.(d) *■ In debt upon an obligation entered into by the under sheriff, for the payment of money into the ex- chequer within fourteen days after he received it, he pleaded the statute of 23. H. VI. cap. 10. and averred, that it was taken colore officii ; but upon demurrer, it was adjudged that the statute extended only to bonds taken from those who were to appear, or who were in ward, and not to this case.(c) In the state of New-York : A bond taken by the inNew-York. -, . What bonds sheriff to induce a less rigorous imprisonment, is ma y be taken good, if the indulgence be such as he would other- of P risoners - wise consistently with his duty be authorized to grant : if it confer a privilege inconsistent with his dnty, by which the object of the imprisonment, as a mean to compel a satisfaction of the plaintiff's de- (d) Bac. Abr. IV. 438, 439. (e) Ibid. 439. YOT» I. 37 282 SHERIFF, CORONER & CONSTABLE. oBLicATi&ws, niaml may be impaired or defeated, the bond is ille- s^v-O gal and void. It is then a bond for ease and favour of the prisoner, and contrary to the statute. So a bond taken by the sheriff under Golonr of his office, to acquire profit or emolument, is, void. The statute is directed against oppression on the one hand, and improper indulgence on the other. A bond con- ditioned, -'That the defendant shall remain a true and faithful prisoner in the gaol or prison until from thence discharged by due course of law," and de- signed to indulge him to goat large within the walls of the prison, is good at common law, and not within the statute prohibiting the taking bonds for ease and favour ; nor affected by the statutes relative to gaol liberties, (a) A bond given to indemnify the sheriff against an escape already happened, is good. The bonds which are void under the act as being given for case and favour, are those given by a person in custody .(6) A promise made by a eon stable to a defendant a- gainst whom he has an execution issued from a justice court, that if the defendant will deliver prop- erty as security for the payment of the execution, he, the constable, will >vait thirty days before he will sell the property, is a promise without consider- ation and void.(c) jiomi fiom "Where a sheriff takes a bond from his deputy for toLis princi- the due execution of his office, the same bond con- r al * tinucs in force as long as the sheriff continues in office, and the other party is his deputy. Though the sheriff is continued in office by reappointment, («) .loh, .son's Costs, II. '239— '.'43. (<6) N 'l l\ R I.4fi0. Bl0thVrfSt5. Co. X. 100. (0 Johns. lisp. II. 103. SHERIFF, CORONER & CONSTABLE, gtt yet the bond of the deputy need not be renewed, bw&oiWeJwrt** continues in force, and extends to all acts of such v^^v^ deputy, as well after such appointment as befoiv, ; and covers the acts of such deputy so long as he holds the office under such 6hcriff.(d) If a prisoner iu execution, in order to obtain the liberties of the gaol, together with a security enter into a bond to the sheriff, conditioned, that he -hall remain a faithful prisoner, &e. pursuant to the statute regulating the liberties of gaols, and the sheriff at the same time take a warrant from the obligors, directed to an attorney, to confess judgment on the bond ; by virtue of which, a judgment is entered and execution issued thereon ; such warrant, judg- ment, and execution, are all void : for the statute does not authorize the sheriff to take such warrant, and if permitted, might be employed to oppressive purpose s.(e) In the state of Massachusetts : If the plaintiff »» Jj^f "JjJ*" replevin execute an informal bond, voluntarily, to bonds are ic- obtain goods attached ; and the officer thereupon de-^' t ' an liver him the goods, the defendant in replevin, may, if he please, accept the bond, and pursue a remedy at law upon it against the obligors ; unless the bond be void at common law. Bonds for ease and favour are void here by our common law, founded on an En- glish statute in force before the settlement of this country ; and so are bonds given to an officer to in- demnify him for a breach of his duty likewise void. But a bond merely informal, given for an object lawful in itself, is not within either of those descrip- tions of void bonds : and it would be altogether m\- (rf) Johns. Rep. V. 168. (<•) Johns. Case*, I. ]??. Vi'le Salt?. If, 67<. Cases centra ^8* SHERIFF, CORONER & CONSTABLE. obligations, reasonable to allow defendants to dispute their bonds v^-v^-' voluntarily executed by them, after their principal has had their full benefit of it, as a legal deed.^yj ■ The condition of a bond was — That whereas the plaintiff as constable of the town of B. had taken one S. B. as a prisoner, by virtue of a warrant granted by N. C. esq. and therefore, if the defend- ants or either of them shall deliver up the said S. B. on the day of, &c. or sooner, if the defendants or either of them shall see cause, the bond shall be void. It was determined that the plaintiff had no right to take such bond in exercising the office by which it was obtained. And that in fact, the per- mission by the officer to his prisoner to go at large after the arrest, amounted to a voluntary escape ; and that the bond intended to protect him against the consequences of his own misconduct, is void at law.(£) A discharge from prison by a competent tribunal, though obtained by fraud, is a discharge in due course of law. And no action can be maintained on the bond for the liberties of the prison, on ac- count of the departure of the prisoner. (li) Jn Connecti- j n tue gtate f Connecticut : Action on bond to cut. the sheriff, conditioned that one S. should abide a faithful prisoner, and not depart the gaol until he should have paid the execution, on which he was committed ; together with the sheriff's and gaoler's fees, and the gaoler for his support. The execution, sheriff's, and gaoler's fees, had been paid before bringing the action, which was brought to recover (/) M. T. R. V. SI 7. (ff) Ibid. 641. (A) Cranch, III. 300. SHERIFF, CORONER & CONSTABLE. 285 the expenses of victualling only. The court direct- obu^™*,, ed the jury, that a bond to the sheriff from a pris- oner in execution, conditioned that he will abide a faithful prisoner, and not depart the gaol until his support should be paid, is illegal and void Ver- dict for defendant.(e) In an action on a prison bond, for the escape of a prisoner committed on execution, if the creditor in such execution, be by the statute of limitations barred of all right of action against the sheriff for such es- cape, the sheriff will recover nominal damages If the sheriff appoint a deputy for the space of six months, and A. and B. thereupon enter into a bond to the sheriff, conditioned, " That such deputy shall faithfully perform his said office, and execute all lawful writs according to law, and ever save harm- less and indemnify the sheriff, his heirs, &c. from all costs and damages whatever, that shall or may arise by means of his being deputed as aforesaid," and such deputy sheriff continues to act as such, under said deputation ,• and after the expiration of said six months, by his negligence, subjects the sheriff to damage, A. and B. are not liable on their bond to the sheriff, to indemnify Mm for any damage he may sustain by any default of such deputy, com- mitted after the expiration of said six months, (k) (i) Root, I. 158. (j) Ibid. II. .334. (*j Kirov. JSP. See ante, 282. CHAP. XII. OF AC TIO NS. I. ASSUMPSIT. ASSUMPSIT lies in favour of an officer for his assumm.t. fees.(a) But it will not lie in his favour to recover a sum agreed to be paid for accepting bail of one arrested, because it is the officer's duty to take bail, and the consideration illegal (/j) So, where an ex- ecutor having sued out an execution, put it iuto the hands of the sheriff, a friend of the executor, in consideration that the sheriff would execute the Writ; and of sixpence, given him by the plaintiff, promised to give the plaintiff £60. On an action on the promise for the £60, it was held that the con- sideration was illegal, and the action would not lie.(c) If an officer discharge a defendant, on his payment of the sum endorsed on the writ, and after- wards the officer is compelled to pay the whole debt, he may maintain assumpsit for the rest against the person discharged, (d) («) Chitty, Plead. II. 31. (b) Bur. II. 924. Bl. Rep. II. 204. (c) Cro. Jac. 103. (d) Peak, N. P. C. 143. 288 SHERIFF, CORONER & CONSTABLE. assumpsit. If an officer collect money on an execution, and do not pay it over to the plaintiff, he may, after de- mand, recover it on assumpsit.(e) If a sheriff's offi- cer take money unlawfully, colore officii; assump- sit for money had and received, lies against the sheriff, (f) (e) M. T. R. Esp. Cas. I. 154, 263. (/)Esp. Cas. II. 507. III. 231. II. COVENANT BROKEN. covenakt. THE sheriff may maintain an action of covenant broken, against an under sheriff, on covenant ta save harmless his principal from all escapes of per- sons arrested by the under sheriff, or any by him appointed.(a) («) Bac. Abr, IV. 433. and cases there cited. SHERIFF, CORONER & CONSTABLE. 289 III. DEBT. DEBT lies in favour of an officer for his fees, for debi levying an execution on land ;(a) and so fop exe- cuting an erroneous writ ;(b) and for levying an exe- cution ongopds, when the parties compromise before the goods are sold.(i*) The sheriff may maintain debt against the sureties on a hail bond taken to himself ; and that, thougli the sureties had nothing within the county. (if) So he may on a replevin bond, Avhere the goods have been replevied from his possession.(e) So he may have debt on bonds for the prison liberties ;ffj and on a bond for his in- demnity given by his deputy ;(#) and against the surety on such bond.(ft) Debt doess not lie against the sheriff because an officer of his, who keeps a lock-up house, (but not the officer to whom the warrant was directed,) takes more money for a bail bond than the law allows.(i) But it does against an officer who returns, that he has levied the money under an execution ,• but not if he return, that he has seized goods to such a value, which remain in his hands for want of buyers, (jj But if his return be that the goods were rescued, the sheriff is liable in debt.(/i) Debt also lies against the executors of the sheriff, who, having levied mo- (a) Salk. 209. (£) Ibid. 33'2. (0 Term. Rep. V. 47©. (e) M. T. R. (/) Ter. Rep. II. 126. (g) Ibid. I. 60. Rac. Abr. IV. 439. (h) Esp. Cas. I. 394. (0 Ibid. IV. 63. O) Hob. 206. (A) Mod. VI. 296, 299. Saund. II. 343. Com. Diff. III. 30O. TOL. I. 38 290 SHERIFF, CORONER & CONSTABLE. DEBT. ney by virtue of an execution, and dies without having paid the same over to the plaintiff's, for the execution, is discharged. (I) So debt lies against the sheriff for the escape of one in execution (m) to recover the whole debt and damage ;(ii) and equally, whether the escape be negligent or voluntary,(o) or whether the sheriff return the writ or not.(p) So debt also lies against a gaoler for the escape of a prisoner in exe- cution, though the escape were without the know- ledge of, or without any fault on the part of the gaoler ; who can avail himself of no excuse but the act of God, or public enemies.(g) (/) Cro. Car. 539. Cro. Eliz. 209. (m) Ins. II. 382. (») Bl. Rep. II. 1048. Ter. Rep. II. 126, (o) Stra. I. 153. (p) Cro. Eliz. 17. !>/) Hen. Blark. II. 108. Stra. I. 153. SHERIFF, CORONER & CONSTABLE. 291 IV. CASE. CASE lies against sheriff's, &c. for escapes on mesne, or final process ,'(a) and for not arresting the debtor when he could have done it ;(b) and for a false return of non est inventus, or languidus, on mesne or final process ,*(c) and for a return of nulla bona upon a fieri facias ;(d) and for not levying un- der it where he might have levied ;(e) and for not taking a replevin bondj^fj and for taking insuffi- cient sureties in replevin ;(g) and for not assigning bail bond ',(K) and for refusing to aecept bail when offered $(i) and for removing goods taken in execution off the premises before the landlord is paid a year's rent, having notice that it is due ;fjj and for a re- turn of too small issues.(fe) If a gaoler permit a voluntary escape, an action on the case lies against him, and no subsequent re- caption will purge a voluntary escape.(l) If a prisoner in lawful custody of the sheriff, es- cape, an action on the case lies by the sheriff against the prisoner, and that, before any action brought, against the sheriff.(m) But the bailiff from whom (a) Esp. Dig. 609. Cro. Eliz. 652, 868. Bac. Abr. II. 240. Ter. Rep. II. 126. Cro. Eliz. 289. (b) Chit. Plead. 140. Cro. Eliz. 729. (c) Mod. I. 223. II. 178. Bac. Abr. I. 53. Str. I. 605, (d) Cro. Eliz. 512. Chit. Plead. I. 140. (e) Chit. Plead. I. 140. (/) Ibid. (g) Ibid. (A) Ibid. (0 Ibid. (J) Com. Dig. I. 202. Stra. I. 92. (A) Ibid. (0 Sttlk. I. 18, 271. (m) Cro. Eliz. 53, 237. Co. III. 52. CASE. For escape. 292 SHERIFF, CORONER & CONSTABLE, cask. the escape actually was, cannot have any action, if the escape were voluntary ; though a recovery have been had against him by the sheriff.(n) For neglect of An action lies against an officer for neglect of his duty; as, if a sheriff do not return a tmt ;(o) and if he do not summon a tenant in a real action, where- by he loses by default ;(p) and if he will not execute a writ of seizin :(iecUcut and sumnione( l the within named J. S. for his appear- nhode-isiand.anceat court, by giving him a true and attested copy of this writ. R. T. Deputy Sheriff. Another. By virtue of this writ, to me directed, I have summoned the within named J. S. for his appear- ance at court, by leaving a true and attested copy of this writ at his last and usual place of abode. & W. Sheriff. Another in New -Hampshire. New-Hamp- jjy T ] r t U e of this writ, to me directed, I have ■hire. * summoned the within named J. S. to appear at court, as by this writ is required, by leaving an attested copy thcrof, with a copy of the service endorsed, at the last and usual place of abode of the said J. S. E. F. Deputy Sheriff. •Another, in Vermont. Vermont. By virtue of this writ, to me directed, I have summoned the within named J. S. to appear at court, as by this writ is required, by delivering to him a true and attested copy of said writ, with a copy of SHERIFF, CORONER & CONSTABLE. 305 the service thereof thereon endorsed, for as the case summons. may require,) by leaving a true and attested copj of said writ, with a copy of the service thereof thereon endorsed, at the house of his usual abode, in said county, with one C. D. a person resident therein, and of sufficient discretion : Cor, if the case so require,) by leaving a true and attested copy of said writ at the house of his then usual abode in said county, on a table in the common keeping room, in fair view, with a book laid on one end thereof, in such situation as that the said J. S. will most pro- bably receive it. G. H. Sheriff. vol. I. iQ 306 SHERIFF, CORONER & CONSTABLE. \ II. ON A CAPIAS, ALIAS, PLURIES, AND ATTACHMENT. Non est inventus, cAP.ALi.FLun. The within named A. B. is not found in my baili* . Constable. SHERIFF, CORONER & CONSTABLE. r>o«j Nulla Bona, Cepi Corpus, and Committitur. VJwtach.** By virtue of this writ to roc directed, for the Nlllla hona . want of goods or estate of the within named defend- a n. the day and place in the -within -writ mentioned, us ^y-y^' within I am commanded. Of a Grand Cape. By virtue of this writ to me directed, I have, by Grand ca] A. B. and T. W. good and lawful men of my baili- wick, given notice to the within named T. F. to be and appear before the justices of the court of , at , at the time and place within mentioned, and as I am within commanded, I have taken by the view of G. T. and J. O. honest and lawful men of my coun- ty, the land and premises within mentioned, as also I am within commanded. The execution of this writ appears in a certain schedule hereto annexed. Live Stock attached, and dead. By virtue of this writ to me directed, and by the Live stock direction of A. B. the within named plaintiff, I at- ■«■*•*■ tached twenty-five merino sheep, the proper goods and chattels of J. Y. the within named defendant, and left with him the said J. Y. a true and attested copy of this writ, and of my doings above stated thereon endorsed, and held the same twenty-five sheep in my custody until the — — day of , when at said 1 the said sheep, each and every of them, died by reason of sickness. And the s?id J. Y. had no other or more goods or chattels within my baili- wick to be found, before the time by law limited for the service of this writ had expired. R. W. Sheriff. 316 SHERIFF, CORONER & CONSTABLE. CAP.AT.I.V7.UR. is ATTACH. Another in Connecticut. Bank shares By virtue of this writ to me directed, and by di- lu Connecti- re ctioii of the within named plaintiff, I attached seven shares, the property of the within named defendant, in the [here describe the hank] by leaving a true and at- tested copy of this writ, with my doings thereon en- dorsed, with N. F. cashier of said bank : and on the day of , at , in , I left with the within named defendant (or left at the usual place of abode of the within named defendant as the case may he) a like copy, of this writ, with my doings thereon endorsed. N. O. Sheriff. Another. Turnpike, &c By virtue of this writ to me directed, I attached shares mCon- nme s ] iares the propertv of the within named de- neeticut. * *■ fendant, in the [here describe the turnpike or other com- pany or corporation] by leaving a true and attested copy of this writ, with my doings thereon endorsed with G. H. secretary (or clerk as the case may be) of said company : and on the day of , at , in , I left a like copy at the place of the usual abode of the within named defendant. F. T. Sheriff. On Foreign Attachment. For* isn ot- tachmeut in Bv virtue of this writ, to me directed, I summoned Connecticut. ^ IC w ithin named defendant, by leaving a true and attested copy thereof at his last usual place of abode in this state; and attached the goods and effects of the 1 defendant in the hands of C. D. within named, as agent, trustee, factor, and debtor, to said defend- ant, by leaving a true and attested copy of this writ. SHERIFF, CORONER & CONSTABLE. Sir at the usual place of abode of the said C. D. eAP.fn.rww. fourteen days before the time of trial. ^-y^J F. G. Constable. Another in Connecticut, where the defendant was never an inhabitant nor resident in this state. By virtue of this writ to me directed, I attached the Another in * - Connecticut. goods and effects of the within named defendant, in the hands of F. G. within named, as agent, trustee, factor, and debtor, to said defendant, by leaving a true and attested copy of this writ, at tho usual place of abode of the said F. G. fourteen days be- fore the time of trial. P. Q. Constable. On attachment of lands in Massachusetts and JWw- Hampshire. By virtue of this writ to me directed, I attached Attachment all the right, title, and interest, of the within named Massachu- F. G. the defendant, to one certain piece or parcel setts - of land, lying and being situate in , in the county of , containing by estimation acres, bounded (here give a general description of the hounds of the land attached,) with a dwelling house and barn, thereon standing. And left at the last and usual place of abode of the said F. G. a summons for his appearance at eourt. G. Y. Sheriff. In Connecticut. lie same in By virtue of this writ to me directed, and by di- rh rectionof P. B. the within named plaintiff, I attached Connecticut. all the right, title, and interest of the within named F. G. the defendant, to one certain piece or parcel of land, containing by estimation, rods of ground, 318 SHERIFF, CORONER & CONSTABLE. CAP.ALI.PI.nH £? ATTACH. bounded as follows, viz. ( here give a general descrip- tion of the hounds J with a large store thereon stand- ing, all situate lying and being in , in said county. And on the day of , I left with. the said F. G. (or I left at the usual place of abode of the said F. G. at , in this state, as the case may he, J a true and attested copy of this writ, and of my doings above stated thereon. And on the — — day of , I also left a true and attested copy of this writ, and a description of the said estate taken thereon, at the town clerk's office, in said , where the estate attached lies. T. J. Sheriff's Deputy. Another, in Vermont. Vermont. Ry virtue of this writ, to me directed, and by di- rection of B. Q. the within named plaintiff, I attached live acres of land, the estate of the within named defendant, situate in , in said county, and bounded as follows, (here set out the bounds as nearly as conveniently may be,) and delivered to the said defendant, (or left at the dwelling house of said de- fendant, or at the last and usual place of abode of said defendant,) in said a true and attested copy of this writ, with the above description of the estate attached endorsed thereon. And I also on the day of , left a like copy of this writ, and of the description of the estate attached endorsed thereon, with one P. F. town clerk of the said town of , for if there he no town clerk in said town, then) at the office of "W. D. county clerk, of said county of . J. L. Sheriff. Another, in Rhode-Island. Kiiode-idand. I certify, that neither the body of R. B. the within named defendant, nor his personal estate can SHERIFF, CORONER & CONSTABLE. 319 be found within this state ; and that by virtue of this ekr,MLi.nm. writ to me directed, and at the request of W. C. the the plaintifF within named, 1 have attached all the right, title, and interest, of the within named R. B. in and to one piece of land in , in said county, containing by estimation acres, bound- ed — (here set out the bounds so that the land may be found and known, J with a large building erect- ed for a distillery standing thereon : And that I have left with J. S. of said , the person in possession of the above attached estate, an attest- ed copy of this writ, and of my doings thereon: And that I also have left with P. F. the town clerk in said , the town in which said attached estate lies, a like copy of this writ, and of my doings thereon. T. M. Sheriff. N. B. If there be no person in possession of the attached premises, the officer attaching the same, must, in his return, instead of saying, « I have left with J. S. of , the person in possession of the attached estate, an attested copy of this writ, and my doings thereon," say, « I have set up a notification of such attachment of said premises at , and a like notification at , and a like notification at , three public places in said , where such estate lies ;'* and have left an attested copy of this writ and of my doings thereon, with P. F. the town clerk, &c. 320 SHERIFF, CORONER & CONSTABLE. III. ON SCIRE FACIAS. SCIRE FACIAS BY virtue of this writ to me directed, by P. Q. and T. Y. honest and lawful men of my bailiwick, I made the within named F. G. senior, and F. G. junior, to know, that they be before the justices of the court within described, at the day and place within men- tioned, to show, &c. as I am within required. Another. i By virtue of this writ to be directed, by J. Y. and J. U. honest and lawful men of my bailiwick, I made M. R. the holder of the goods and chattels of the within named P. Q. at the time of his death, to know, that he before the court of exchequer, at the day and place within mentioned to be holden, to show r , &c. as I am within required. And I further certify, that there are- no executors to the last will and testament of the aforesaid P. Q. ; nor are there any adminis- trators ; nor were there any other holders of goods or chattels of the same P. Q. at the time of his death; nor are there any heirs or tenants; nor is there any heir or tenant of the lands or tenements, which belonged to the same P. Q. on the day and year in which, &c. Another. I certify, that the within named!*. Q. hath nothing in my bailiwick, by which I can make him to know, nor is he found in the same. L. M. Sheriff. SHERIFF, CORONER & CONSTABLE. 3*i IV. ON DISTRINGAS AGAINST DE- FENDANT. THE within named L. M. has nothing in my baili- wmnwA* wick, by which he can be distrained. B. Y. Sheriff. Another. The within named C. D. has nothing in the lands, tenements, and hereditaments, within mentioned, by which I can distrain him. B. Y. Sheriff. Another. «J« © O. F. G. and L. M. are distrained, and each of them is distrained by their lands and chattels, according to the form of this writ, whence their issues, as ap- pear above. And they are mainperned, and each of them is mainperned, by himself, viz. J. D. J. F. P. H. that they, and every of them, may be at the day and place within written, according to the tenor of this writ. L. M. Sheriff. Another. A. who was wife of B. R. within named, execut- rix of the last will and testament of C. D. S 8 B. R. J. S. another executor of the last will and testament of C. D. and J. S. the third executor of vol. j. 42 322 SHERIFF, CORONER & CONSTABLE. distringas, the last will and testament of C. D. aforesaid, are distrained, and every of them is distrained, by him- self separately, according to the form of this writ, from whence their issues appear as above. And every of them is mainperned by himself, viz. by four mainpernors, by name A, B, C, and D. And there are not any more executors of the same last will and testament of said C. D. nor were his heirs in the county of — — , as by any means can at pre- sent be discovered. Distraint is by chattels to the value of in the whole. L. M. Sheriff. Sureties of prosecution, "] 7? j? Another. I certify, that there are not any executors of the last will and testament of the said C. D. ; nor any administrators of his goods and chattels, nor any heirs, nor tenants of his lands within my bailiwick, whom I can distrain, as is by this writ required and commanded. , T. M. Sheriff. SHERIFF, CORONER & CONSTABLE. Sfl* V. ON VENIRE FACIAS AGAINST A DE- FENDANT. THE within named J. G. has nothing in my baili- ? ^^ff ' wick, by which he can be attached, or whereby I can summon him. •■ A. B. Sheriff. By virtue of this writ to me directed, I have made the within named J. L. to come before the justices within named, at the day and place with- in mentioned, as I am by this writ required. The within named J. B. is attached by sureties: viz f Richard Hobson, \ Nathaniel Lobson. A. B. Sheriff. VI. OF VENIRE FACIAS OF JURORS. THE execution of this writ, appears in a certain venir.fac.j^. panuel hereunto annexed. L. M. Sheriff. Names of the jurors between A. B. plaintiff, and L. M. defendant, in a plea of trespass. P. F. of A. Gent. ") and thus to the whole num- R. B. of B. Yeoman. J number required. Each of the jurors aforesaid, by himself,') J. J). JR. jR. separately is attached by sureties. Issues of each 205. T. M. Sheriff 524 SHERIFF, CORONER & CONSTABLE. VII. HABEAS CORPUS JURATORUM. hab.corp.jur. THE execution of this writ appears in a certain pannel hereunto annexed. Names of the jurors between A. B. plaintiff, and C. D. defendant, in a plea of debt. A. B. of L. Gent. ") and thus to the whole number C. D. of M. Yeoman, J the writ requires. Each of them is by liimself separately ") J. B. attached by sureties. J JR. E. Issues of each of them 305. (or more, as the writ requires.) VIII. OF DISTRINGAS OF JURORS. THE execution of this writ appears in a certain pannel hereto annexed. P. F. of A. Gent. 1 Jlnd thus of all the writ J. L. of H. Yeoman, J requires. Manucapators of the aforesaid jurors f J. B. of each of them, (. B. R- Issues of each of them 20s. (or more, as the law requires.) SHERIFF, CORONER & CONSTABLE. 32i Another. Mmn ,Bi ' As to J. L. and the other jurors to be distrained to be before the justices, &c. at the day and place within mentioned, I certify that this writ was so late delivered to me, that I could not execute it by reason of the shortness of the time. T. M. Sheriff. 326 SHERIFF, CORONER & CONSTABLE. IX. OF EXIGENT. exigent. by virtue of this writ to me directed, at my county court held at the court house in in my said county, on the Monday in A. D. J. S. and the other defendants (if there be more than two J within named, were first exacted and did not appear, nor did either of them appear. And at any county court there held on the Monday of A. D. , the said J. S. and the rest of the defendants within named, were a second time exacted, and did not ap- pear, nor did either of them appear ; and at my coun- ty court there held on the Monday of A. D. the said J. S. and the rest of the defendants within named, were a third time exacted hut did not appear, nor did either of them appear ; and at my county court there held on the Monday of A. D. the said J. S. and the rest of the defend- ants within named, were a fourth time exacted and did not appear, nor did any one of them appear ; and at my county court there held on the Monday of A. D. , the said J. S. and the rest of the defendants within named were a fifth time exacted and did not appear, nor did any one of them appear. Therefore the said J. S. and (name them all) the rest of the defendants within named, according to the statute law of this state are outlaAved, and every one of them is outlawed. (Or) — Therefore the said J. S. and (name them all J the rest of the defendants with- in named by the judgment of B. M. and O. P. coro- ners of said county are according to the statute, &c. fas before. J A. B. Sheriff. SHERIFF, CORONER & CONSTABLE. Another, with supersedeas. By virtue, &c. at any county court held at &c. on &c. the aforesaid J. S. was a fourth time exacted and appeared and produced and delivered to me a writ of supersedeas, and which writ of supersedeas is to this writ 'annexed, hy which the execution of this writ further to be done, is altogether superseded, as is to me commanded in the same writ of supersedeas. A. B. Sheriff. Another. By virtue, &c. at my county court there held on the Monday of A. D. , the afore- said, J. S. and the rest of the defendants within named were a fourth time exacted, at which day the aforesaid J. S. appeared and rendered himself to the prison, &c. and whose body I have ready before the justices of the court within written, at the day and place within named, as is to me within command- ed ; but the rest of the defendants within named, did not appear. Therefore, &c. (as before. J A. B. Sheriff. Another. At my county court, &c. the aforesaid J. S. appear- ed, and rendered himself to the prison, within the county aforesaid and in the same prison now remains sick, detained by various infirmities, so that on ac- count of the weakness of his body and the danger of his death, he cannot be removed, and for that cause I cannot at present have the body of the said J. S. before the justices within named, for described,) at the day and place within contained, (or specified,) ac- cording to the form of this writ, &c. A. B. Sheriff SHERIFF, CORONER & CONSTABLE. Another, By virtue, &c. at my county court there held on the Monday of A. D. , the aforesaid J. S. R. A. D. B. and O. L. were a fifth time exacted, and the said J. S. rendered himself to the prison in the county aforesaid, whose body I have, &c. to do that which the aforesaid writ exacts, and requires of him. And the aforesaid R. A. appeared and produced to me a writ of supersedeas to this writ annexed, there- fore I could not proceed further against him. And the aforesaid D. B. is dead and the aforesaid O. L. is outlawed, &c. A. B. Sheriff. SHERIFF, CORONER & CONSTABLE. *§ X. OF A WRIT OF PROCLAMATION UPON AN EXIGENT. BY virtue of this writ to mc directed, at my coun- ty court, held at the court house in the county of on the day of , I, in open court first made proclamation, and at the court of general sessions of the peace held at in the county of where the said J. S. resided at the time of awarding said writ of exigent, on the day of A. D I, a second time made proclamation. And at (or near) the most usual door of the church in said where the said J. S. resided, at the time of awarding the exigent (or if there be more than one church in said town, then J the most usual door of the church, near- est the dwelling of the said J. S. in said (and if there he no church in said town, then J the most usual door of the church, in the next town, nearest the dwelling of the said J. S. (there being no church in the town wherein there was the dwelling of the said J. S.) upon a Sunday immediately after divine service (if any there hej one month at the least he- fore the within named J. S. was a fifth time exacted, I, a third time made proclamation that the within named J. S. render himself to me, so that I may have his body before the justices within named (or described] at the day and place^within contained, (or mentionedj as the writ enjoins and requires. A. B. Sheriff. 1'ROCI.AMA- tion ui-nn EM(,t\ ; . vol. i. 43 330 SHERIFF, CORONER & CONSTABLE. XL OF REPLEVIN. ref/evin. Sureties for prosecution and return, f John J)oe, ^^^-^ if return shall be adjudged. \ Richard Roc. By virtue of this writ, &c. on the day of , A. r D. , I made replevin to the within named T. R. of the cattle within specified, which the within named T. R. and J. N. had taken, and unjustly detained, ac- cording to the form of this writ, as within to me is commanded. L.M. Sheriff. Jlnolhcr. Eloigned. I certify that before the coming of this writ to me, the beasts in this writ specified, were eloigned to places to me unkown, by the within named J. T. so that I could by no means make replevin of said beast? within described, as within to me is commanded. L. M. Sheriff, Another. I certify that no one on the part of the said J. K. came to show to me how many, and what cattle of the said J. K. the said T. N. and others had taken and unjustly detained. Therefore the cattle of the aforesaid J. K. I could not replevy to him. L. M. Sheriff. Another. I certify that on the — — day of — — A. D. , at 1 in said county, this writ, and two other SHERIFF, CORONER & CONSTABLE. writs, at one and the same time, were delivered to m«*wum. me. And by virtue of this writ, I went to , in Replevin of my county, where the cattle within described were, to J replevy the same cattle to the within named A. B. And the within named J. T. and the within named T. N. as the bailiff of the said J. T. claimed the prop- erty of the cattle aforesaid, to he the proper cattle of* the aforesaid J. T. and therefore I could not replevy those cattle to the aforesaid A. B. according as this writ requires. L. M. Sheriff. Another in Massachusetts, New -Hampshire, Vermont, and Rhode-Island. By virtue of this writ to me directed, I have reple- vied the within described goods and chattels (or cat- tle) to him the said A. B. and have taken bond of the said A. B. with sufficient sureties for prosecution of this writ, and return of said goods and chattels (or cattle) if return shall be adjudged. And have sum- moned the said J. T. for his appearance at court, by reading this writ in his presence (or hearing, or to him) or by leaving a true and attested copy of this writ, at his dwelling-house, or usual place of abode in said , (or at his last and usual place of abode, &c.) Another in Connecticut. By virtue of this writ to me directed, I have re- plevied to him the said A. B. his cattle within describ- ed, and have read this writ in the hearing of A. M. the within named defendant (or have left a true and attested copy of this writ at his usual place of abode , in ) T. N. Sheriff (or Constable.) 53.2 SHERIFF, CORONER & CONSTABLE. XII. RETORNO IIABENDO, AND SECOND DELIVERANCE. srcosD I certify that before the coming of this "writ to deliv -ANCE. me ^ || ie ca (tj e within specified were eloigned by the Retorno ha- within named J. T. to places to me unknown, so that I could by no means cause the said beasts to be re- turned, as within to me is commanded. L. M. Sheriff. Second de- liverance. By virtue of this writ to me directed, I hare caus- ed to be delivered to the within named L, his cattle ■within mentioned. SHERIFF, CORONER h CONSTABLE. 9SJ XIII. OF WITHERNAM. By virtue of this writ to me directed, I have taken W / T ^^ A ' : one silver tankard, and one gilt tea-urn, and one horse, the proper goods and chattels of J. T. in this writ named, in withernam ; and the same tank- ard, tea-urn, and horse, have caused to he delivered to the within named A. B. to he held hy him the said A. B. until the aforesaid J. T. will deliver the chat- tels within described, to him the said A. B. ; and I further certify, that the aforesaid J. T. in this writ named, has no other goods nor chattels, which can be taken in withernam, and bv which he can be attached according to the tenor of this writ. L. M. ShcrifT. Another. By virtue of this writ, &c. I have taken in wither- nam, at , in the county aforesaid, two cows, the proper beasts of the within named J. T. and two cows the proper beasts of the within named F. G. to the va- lue of , which several beasts I have caused to be driven'and conducted into a certain place at , in the county aforesaid, there to be kept in sure and saf« custody, according to the requirement of this writ, where the cattle aforesaid lie. And the said J. T. and F. G. have no more, nor other cattle at present in my bailiwick, which I can by any means take in wither- nam, as within to me is commanded. L. M. Sheriff. Another. By virtue, &c. I took two cows and two calves, the cattle of the within named J. T. which I have caused 35* SHERIFF, CORONER & CONSTABLE. v !^^' to ^ e delivered to the within named A. B. to be safely and surely kept, until I can deliver to the said A. B. his cattle within specified, before taken and eloign- ed to places unknown to me, as in this writ I am com- manded. L. M. Sheriff. Another. The within C. D. has no cattle in my bailiwiek, which I can take in withernam according to the re- quirement of this writ, (nor has he any thing else in my bailiwick, by which he can be attached,) nor is he found in the same. L. M. Sheriff. Another. There are no goods nor chattels of the within named C. D. which 1 can take in withernam, there- fore the aforesaid C. D. is mainperned by J. D. and R. R. U M. Sheriff SHERIFF, CORONER & CONSTABLE. 33* IV. OF EXECUTION AGAINST THE BODY. Cepi corpus. By virtue of this writ to me directed, I have taken ca. sa. the body of the within named C. D. and have him cepi corpus, ready at the day and place within specified. A. B. Sheriff. Another. By virtue of this writ to me directed, I have taken the body of the within named C. D. and have his body ready at the day and place within named, as by this writ I am commanded. A. B. Sheriff. JYVm est inventus. The said C. D. is not found within my bailiwick. Non tat, A. B. Sheriff. Another. The said C. D. is not found within my bailiwick, so that I cannot have him before the justices of the court at the day and place within named as by this writ is required. A. B. Sheriff Cepi corpus, and mortuus est. Ry virtue of this writ to me directed, I arrested Mortuus est. the body of the within named C. D. who, on the — — day of died of his own felony ; (or) wh« 356 SHERIFF, CORONER cSc CONSTABLE. CA^SA. died of sickness, while in my custody ; (or) who died by murder hy one J. N ; (w) who died of misfortune hy drinking cold water, while in my custody. A. B. Sheriff. Cepi corpus, and payment. Payment. j i iave taken the hody of the within named \V. D. and him detaiued in eustody, until he paid the debt and damages within mentioned ', which debt and damages I paid to the plaintiff within named, and immediately afterwards discharged the said W. D. out of custody. Rescue. Cepi corpus, and rescue. By virtue of this writ to me directed, I arrested the body of the within named C. D, and had him in my custody till on the day of he was rescued by a body of public enemies, (here describe the manner of the rescue, and the enemies which made therescue, and how, J so that I cannot have him at the day and place, before the said justices of the court, (or) before the court, at the day and place within named as by this writ is required. A. B. Sheriff. Cepi corpus, and escape. Escape, By virtue of this writ to me directed, I arrested (he body of the within named C. D, and had and held him in my custody, in the common gaol at in the county of , when said gaol was struck by lightning, which set the gaol on fire, and nn opening made in the side thereof, from which sivid C. I), escaped, against my will so that I cannot, &C. \. B. Sheriff. SHERIFF, CORONER k COS ST ABLE. 153 CA. M. Another, in Massachusetts and New-Hampshire. Nulla bona, cepi corpus, and committilnr. By virtue of this execution to me dire? ted, and for Corafttitar. want of goods, chattels or estate of the within C. D. shewn tome, or to he found within my precincts, to the acceptance of the said A. B. to satisfy the same, I have taken the body of the said C. D. and him committed to the gaol of this commonwealth, (or state) in , in said county, and at the same time I left an attested copy of this execution, witli the gaoler thereof. E. M. Deputy Sheriff. Another, in Connecticut and Vermont. By virtue of this execution to me directed, I re- The sa me in paired to the usual place of abode of C. D. the within and Vermont. named debtor, and there made demand of tbe debt or sum due on this execution, with ail necessary charges of executing the same, and the said C. D. neglecting to pay and satisfy this execution, and for want of personal or moveable estate of the said C. D. shown to me, or to be found within my precincts, to satisfy said execution, I took the body of the said C. D. and on the day of him committed to the keeper of the gaol in in the county of within 'the prison, and then and there left with the said keeper a true and attested copy of this execution, and of my doings thereon. A. H. Constable. Another, in Jlhodc-Island. By virtue of this execution to me directed, for want The mum of monev, goods or chattels of C. D. the within ,:1:Je,s;anJ named debtor, to lie found within my precincts, for vor,. T. i<+ J38 SHERIFF, CORONER & CONSTABLE. ca. sa. the satisfying this execution, I arrested the body of the said C. D. and committed him to the keeper of the common gaol, in , in said county, within the prison, and left with the said keeper, a true and at- tested copy of this execution, and of my return above thereon. A. B. Sheriff. SHERIFF, CORONER & CONSTABLE. S39 XV. OF FIERI FACIAS, OR EXECUTION A- GAINST GOODS AND CHATTELS. .Xulla bona. PI. FA. The within named M. B. has no proper goods or chattels, in my bailiwick, whence I can cause to he made, or ]e\\, the sixty pounds within mentioned, or any part thereof. A. B. Sheriff. Another, against executors. The within named "W. P. has no goods or chattels, Devastavit. which belonged to the within named J. G. at the time of his death, in his hands to he administered, in iny bailiwick, whence I can cause to be made the within mentioned live pounds, or any part thereof; but there were divers goods and chattels, belonging to the said J. G. at the time of his death; to the value of fifty pounds, which came to the hands of the aforesaid W. P. after the death of the afore- said J. G. to be administered,* which certain goods and chattels, the said W. P. afterwards, and before the return of this writ, wasted, eloigned, and converted to his own use. Another* By virtue of this writ to me directed, I have caused to be made the sum of (SSO,) from the goods and chattels of the within named A. B. and am ready to have the same sum of money before the justices of the court, Cor, before the court, J at the day and place mentioned, to be paid to the within named 3i0 SHERIFF, CORONER & CONSTABLE. F. G. for Ills debt and damages within specified, as by this writ to me is commanded. J. L. Sheriff. Another. By virtue of this writ to me directed, &c. f as before, as far as, J to be paid to the within named P. F. in part of his debt and damages within speci- fied: and further, I certify to the justices of the court, for to the court,) that the aforesaid P. F« has no more goods or chattels in my bailiwick, whence at present I can cause to be made the residue of the debt and damages aforesaid, according to the re- quirement of this writ. J. L. Sheriff. Another. By virtue of this writ to me directed, I have caused to be made the sum of $ iO, of the goods and chattels of the within named R. B. \ which g> 40, I am pre- pared to have before the justices within named, at the day and place within prescribed, as this writ requires and commands. J. L. Sheriff. Another. By virtue of this writ to me directed, I have caused to be seized, (or have taken) one mare, two steers, and twenty-five sheep, the goods and chattels of the within named A. B. of the value of the debt and damages within stated, which same goods and chattels remain in my hands unsold, on account of delect of buyers. Therefore I cannot have the SHERIFF, CORONER * CONSTABLE. .,, i money in court, at the day and place required, s'.s is « **. within to mc commanded. J. L. Sheriff. Another* I certify to the justices (or court) within named, Divers of tbe that there are divers persons in mv county, (or (he','*'"! ' "! (! ' » * •< * V iCtlulDt, anil town of , within named,) known and called by officer kno*i the name of J. L. to wit, J. L. of IS. J. Ii. of Ctotevy. and J. L. of Dj and because it is not specified in this writ, of the goods and chattels of which of the said J. L's I should make the sum of money within mentioned; therefore I could not, nor can proceed to the execution of this writ. Another. By virtue of, &c. I seized the goods and chattels, Gooda, &<•. lands and tenements, of the within named J. L. to outsold, the value of $ 2000, and the same from day to day exposed for sale, and then sold to the value of $ 100, which same $ 100 I am ready to have at the day and place within directed, to bo paid to the within named P. F. as soon as I am further commanded. And the residue of the goods and chattels remain with me for defect of buyers. Another. By virtue &c. I took the goods and chattels of the Kr> z o " di > m within named A. W. to the value of § -i part of thc C q"i, &c, within written $8, which goods and chattels, remain in my hands, unsold for defect of buyers, and that the aforesaid A. W. has at present no other or more goods or chattels, nor any lands or tenements in my bailiwick, whence I can cause to be made, the resi- due of said jg 8, or any part or parcel thereof. SHERIFF, CORONER & CONSTABLE. Another. By virtue, &c. I have sold the goods and chattels above described, by me before taken, and also have caused to be made of the goods and chattels of R. S. within named, the residue of the debt within stated, so that I am prepared to have all the money in court at the day and place within directed, to be paid to the within named H. "YV. as I am within com- manded. Special return in JS"ew-Fork. New-York. County of Dutchess, ss. September 12th, 1811. By virtue of this writ to me directed, I, John Finch, sheriff of said county of Dutchess, seized one horse, one pair of oxen, and three cows, the proper goods and chattels of the within named C. D. and on the same 12th day of September, advertised the same horse, oxen, and cows for sale at public vendue, at the dwelling house of in in said county of Dutchess, on the 20th day of September aforesaid, at two o'clock in the afternoon, by putting up written notifications of the time and place, where the goods so seized were to be sold, at — — , and , and , three of the most public places in said town of , and on the said 20th day of September, at said according to notice as aforesaid given, I sold at public vendue the said horse so seized, at the sum of and the said pair of oxen at the sum of , and the said cows, one at the sum of , and one at the sum of , and one at the sum of , and in manner aforesaid, 1 have caused to be made of the goods and chattels of the said C. D. the sum of — •— and have the sum of money last mentioned before the j'ourt, at the day and place within named, in SHERIFF, CORONER & CONSTABLE. in satisfaction of the debt and damages within stated, » m as within to me is commanded. v^-v-^/ John Finch, SherifT. Another, in Massachusetts and Nerv-Hampshire. By virtue of this writ of execution to me directed. »» 1 seized (o?- took) one chaise, the property of thc se "s- within named C. D. and afterwards, on the day of forty eight hours before the expiration of four days from the time said chaise was so as aforesaid seiz- ed advertized by posting up notifications at — and al- so at , two public places, in said town of , that said chaise at in said eounty,on the day of at o'clock in the after (or fore) noon, being the expir- ationof four days, from the time when said chaise was so seized, would be sold at public vendue, unless said C. D. should previously redeem such chaise, by otherwise satisfying said execution ,• and having safe- ly kept said chaise, for said space of four days, from the time of seizing the same as aforesaid ; and the said C. D. having failed to redeem the same by otherwise satisfying said execution ; at the time and place aforesaid appointed, I at public vendue sold the same chaise to E. F. of in said county, he being the highest bidder therefor, for the sum of , and thereupon satisfied said execution, the charges of sale, and my fees all amounting to and the overplus arising from such sale, being the sum of - — , I returned to the said C. D. E, M. Sheriff. Another, in Connecticut. F. County, ss. July. By virtue of this execution, I repaired to the place connacUcai of usual abode of C. D. the within named debtor, at 54* SHERIFF, CORONER k, CONSTABLE. in said county, and there made demand of the debt, or sum then due on this execution, with all necessary charges of executing the same ; and the said C. D. neglecting to make payment thereof, by direction of A. R. the creditor within named, I seiz- ed and took by virtue of this execution, one horse, and one horse-cart, the property of the said C. D. and he the said C. D. having no other, or more goods or chattels, liable to be taken in execution, to be found within my precincts, on the same day 1 set up, on the sign post in society where said horse and horse-cart were so seized and taken, an account of them particularly, with a declaration that said horse and horse-cart would be sold at said sign post, at public vendue, at the end of twenty days. And at tlie end of twenty days thereafter, the said debtor having failed to pay the debt in said execu- tion contained, together with the costs and eharges thereon, I caused a drum to be beaten at said sign post, and sold said horse there at an outcry to O. L. the highest bidder therefor, for the sum of . . and in like manner then and there sold said horse-cart to P. T. the highest bidder therefor, for the sum of both which sums amount to the sum of from which deducting the costs, cliarges, and my fees thus far on this execution, amounting to the sum of i leaves the sum of arising from the sale of said horse and horse-cart, which I applied to- wards satisfying tlie execution, and paid the same sum of over to the said A. B : and there remaining due on this execution the sum of , and there being no goods or chattels of the within named debtor, to be found within my precincts, to satisfy the same execution, I, by virtue thereof, and by the direction of said creditor, seized one acre of land with the dwelling house thereon ; (then pro- SHERIFF, CORONER & CONSTABLE. 3ii cted according to the form herein after given, for the levy of an execution on real estate in Connecticut, J which said sum of , at Avhieh said land and house were appraised as aforesaid, I applied towards com- pleting the satisfaction of this execution, cost and charges ', bat the sum being insufficient therefor, leaving still due on this execution the sum of , by the direction of the said A. B. and by virtue of this execution, on the day of at 1 took the body of the within named debtor, and him com- mitted to the keeper of the common gaol, in in said county, within the prison, and delivered to the said keeper of the prison, an attested copy of this execution, with my proceedings aforesaid endorsed thereon. A. M. Sheriff. Another, rvherc the debtor lives out of the officer's precincts* F. County ss. borough of B. &c The Avithin named debtor having neglected to make payment of this execution, to me directed and delivered, together with the lawful charges thereon ; hy virtue of this same execution, and by direction of A. B. attorney to the within named creditor, I then seized and took one puncheon of Antigua rum, and one butt of Muscovado sugar, and on the same day posted the same puncheon of Antigua rum, and butt of Muscovado sugar, on the sign post in the bo- rough of B. there to be sold, at the end of twenty days thereafter, and the said debtor having failed to pay the said debt, costs and charges arisen ou this execution, on the day of the day so as above appointed, for the sale of said rum and sugar, vol. t. 45 PI. FA. 3*6 SHERIFF, CORONER 6c CONSTABLE, *■ fa. T caused a drum to be beaten, 6cc. (as in the form [Mca'ding.) G. II. Bailiff. Another* By virtue of this execution to me directed, I re- paired to the place of the usual abode of C. D. the within named debtor, in said , and there made demand of the debt (or sum) due on this execution, \vi?ii the necessary charges of executing the same. And the said debtor, having refused to make pay- ment of the saute, and there being no moveable or pei's&'ial estate of said debtor sufficient to satisfy said debt and charges, to be found within my pre- cincts, I arrested the body of said C. D. and then and there commenced proceeding to commit him the said C. D. to the common goal in in , said county, when he, the said C. D. to procure a release of his body from arrest as aforesaid, and for the satisfying of this execution, presented to me, to be taken on the same execution, one hat, one bed, one sheet, one blanket, and one iron pot, whereupon, the articles aforesaid being apparently sufficient to satisfy the said execution, &e. I released the body of the said C. D. from arrest on said execution, and by vir- tue tbercof, then and there, on the day of , seized the said hat, bed, sheet, blanket, and iron pot. And on the same day posted the same articles on the sign post in said (then pi'oceed as in the form* I receding J. All which sums arising from the sale of the said several articles, amounting to the sum of , and the debt due on this execution being the sum of , and the cost, charges, and my fees, on the same exe- cution, amounting to the sum of , both which SHERIFF, CORONER k CONSTABLE. M? last mentioned sums, amounting to the sum ef , leaves a surplus arising from the sale of said arti- cles, after satisfying said debt, cost, ■ ti ■ , ind fees, of the sum of , which I returned to Ihe said C. D. and paid over to the said A. II. the e 'edi- tor within named, the said sum of , in full satis- faction of this execution. J. N. Constable. •Another, in Vermont. By virtue of this execution to me directed, I re- paired to the usual place of abode of CD. the within named debtor, in said , and there demanded the debt (or damages, or cost, as the case may be J con- tained in this execution, with all legal charges for serving the same; and the said CD. having neglect- ed to pay said debt, (or, &c.) with the legal costs of serving the same, I seized two oxen, and two cows, the proper goods and chatties of the said C D. (or shown to me by A. B. the creditor within named, as the proper goods and chatties of the said C. D.) and on the same day, I advertised upon the sign post in , the town where said two oxen and two cows were by me so taken, that said two oxen and two cows would be sold, at public vendue, at said sign post, on the day of , fourteen days from the time of advertising as aforesaid (or more that) fourteen days, &c. as the case may be). And having safely kept said two oxen and two cows, and the said C. D. having failed to redeem the same, by otherwise satisfying this execution, and the charges of the officer thereon, I at the said sign post, on the day of , then so appointed for the sale of said two oxen and two cows, sold at public vendue the said two oxen to E. F. of , the highest bidder for (hem, for the sum of , and one of said eows II fA 5 SHERIFF, CORONER & CONSTABLE. fi. fa. to G. H. of , the highest biddei* for her, for the sum of , and the other of said cows to I. J. of , the highest bidder for her, for the sum of , and the debt (or, &c.) in this execution being the sum of , and the officer's cost and charges being the sum of , both amounting'to the sum of And the money arising from the sale of said two oxen and two cows, amounting to the sum of , left a surplus of the sum of , which I returned to the said C. D. and paid and satisfied to the said A. B. the said sum of , being his debt in this execution. J. M. High Bailiff. Another, where the debtor lives out of the precincts of the officer, and the place of advertisement and sale is at a place other than the sign post, by agreement of the officer and debtor. The said C. D. having neglected to pay the debt contained in this execution, with the legal charges thereon, by virtue of this same execution, I, at , on the day of , seized one hundred bushels of wheat, the proper goods and chattels of the said CD. and by agreement with the said C. D. advertized upon the front of the dwelling- house of I\ F. of said , that said one hundred bushels of wheat, would, at said dwelling-house, be sold at public vendue, on the day of , more than fourteen days from the time of setting up such advertisement as aforesaid. And having kept said one hundred bushels of ^vheat safely, &c. (as in the preceding, till the sale is completed at said dwelling- house, and the money arising to be applied.) The cost and charges of the officer in proceeding thus far on this execution, being , which deducted from said -urn of . at which said wheat was sold, leave* SHERIFF, CORONER k CONSTABLE. ; I ?♦ the sum of , which I have paid over to the said A. B. in part satisfaction of this execution. J. JV. Constable. Another, on articles exempt from eceecution, unless turned out by the debtor. By virtue of, &c. (as in the preceding forms) I seized one cow, one coat, one pair of woollen blank- ets* one tahle, and one gun, all turned out to me by the said C. D. to be taken on this execution, £?c. (as in said forms preceding.) N. O. Sheriff. %lnother, in Rhode-Island. By virtue of this execution to me directed, and by Rlwde - W!awL direction of A. B. the creditor within Darned, I seiz- ed one hogshead of molasses and one anchor, the proper goods and chattels of C. D. the within named debtor, and the same goods and chattels, on the same day advertized to be sold at public auction, on the dav of at in said : and bavins: kept said goods and chattels, for the space of ten days, until the day appointed as aforesaid for the sale of said hogshead of molasses and anchor, and the said C. D. having failed to pay the money due on this execution, together with the costj accrued thereon, and thereby to redeem his said goods and chattels on the »aid day of at , I at public auction sold the said hogshead of molasses to P. F. of t'ie highest bidder therefor, for the sum of ; and I also in like manner, thin and there, sold yaid anchor to G. H. of the highest bidder therefor, for the sum of , boil' which sums of money arising from said sales of s: id goods and chattels, amounting to the sum of , and the i50 SHERIFF, CORONER & CONSTABLE. FI. FA. money then due on this execution being the sum of , and the costs accrued thereon being the sum of , both which last mentioned sums, amounting to the sum of , which deducted from the amount arising from said sales, leaves an overplus of the sum of , which I returned to the saul C. D, and paid over to the said A. B. the said sum of , being the money due to him on this execution, in full satisfaction. P. F. Town Serjeant. Another on set-off of one execution on another, in New-Hampshire and Rhode-Island. set-off of one I certify, that after I had received this writ of execution up- ■ , o. another, in execution, C. D. the within named debtor, delivered Kew-Hanp- t an execution in his own name and right against shire ana Rhocie-isiand. A. B. the within named creditor, for the proper debt of the said A. B. issued on a judgment render- ed by (Jiere insert the court or justice issuing such ex- ecution) on the day of at in the county of in favour of said C. D. against said A. B, bearing date the day of signed by ( here in- sert the name of the clerk of the court, or the name of the justice rvho signed such execution J and direct- ed to (here insert the description of officers, sheriff, deputy-sheriff, coroner, high bailiff, constable or town scrjeani, and the county or toion of which they arc officers as aforesaid) for the sum of debt (or) damages, and for the sum of costs of suit, and made returnable (here insert when such executi- on was made rciurnablc) and that at (he request of said C. D. I received and set off on this execution, in favour of said A. B. his, the said C. D's, said des- cribed execution, against him, the said A. B. amount- ing to the sum of , leaving a balance due on SHERIFF, CORONER & CONSTABLE. 351 this execution of , besides officers's fees ami charges, and have returned the execution of the said C. D. against the said A. B. satisfied. And by virtue of this execution, on the day of , at said 1 took one horse, &c. (here pro- feed as in ordinary cases on goods ami chattels.) M. N. Sheriff*. Another. I certify, that at the request of A. B. the within named creditor, I set off* this execution, amounting to the snm of including debt (or) damages and costs, in full satisfaction thereof, upon an execution directed to me, and then in my hands for collection against him the said A. B. in favour of C. D. the within named debtor, which said execution in favour of said C. D. on which this execution was so set off, issued on a judgment rendered, (Jierc proceed in the description as in the preceding form.) leaving the sum of , a balance still due from the said A. B. on said execution in favour of the said C. D. besides officers* fees and charges. W. C. Deputy Sheriff: For cases in which set-offs of one execution on another may be made, see statute of New-Hampshire and of Rhode-Island, Vol. IT. Another, on hank shares in Massachusetts. Bv virtue of this execution to me directed, and^n Uank • . . Glares in by the direction of A. B. the creditor v> itlun nanml. M a*>achu- on the day of at said I seized seven > ett5 '- shares in the (here describe the bank) the property of C. D. the within named debtor, with all the rights 352 SHERIFF, CORONER & CONSTABLE. and privileges of said seven shares, by leaving with E. F. cashier of said bank, at aforesaid, a true and attested copy of this execution, and on the same •'ay I gave public notice, that said seven shares, with all their rights and previleges, would be sold at pub- lic vendue at on the day of , thirty days from the time of giving such notice, by post- ing up notifications thereof at a public place in said and at a public place in — — , and at a public place in ; the two towns adjoining to said where such sale was so appoint- ed to be made, and caused an advertisement, ex- pressing said time and place of such sale, and against whom the execution had issued, to be publislied three weeks successively before said day of sale, in a pub- lic newspaper called the , printed at in said county : (but if no newspaper be printed in said county, say,) printed at in the county of , the county nearest to the place of such sale. And on the same day of I gave notice in writing to the said C. D. of the time and place of sale as aforesaid, of said of seven sliares, by leaving such notice at his last and usual place of abode. (But if the judgment debtor has at no time resided, or docs not at that time dwell in the comity where such shares arc seized, notice in writing left at his place of abode as afore- said, may be omitted.') And on the day of aforesaid, appointed for such sale, I sold six of said seven shares to G. L. of highest bidder for them, for the sum of : and from the money arising from such sale, paid to the said A. B. the sum of in full satisfaction of his debt due upon said execution, and retained the sum of , being the amount of charges of sale, and officers fees; and the sum of remaining, beyond satisfying this execution, charges, and officer's fees, I deposited SHERIFF, CORONER & CONSTABLE. S5$ With the cashier of said bank, for the benefit af the "• «■*• said C. D. ^-^-y-^ A. B. Sheriff. When levied on Turnpike Shares, G?c. (As in the preceding, except in the manner of seiz- ing, which must be) by leaving an attested copy of this execution with P. F. of , clerk of said com- pany, and a like copy of said execution with G. H. treasurer to said company : (and in either case, if, for xvant of purchasers on the day appointed for the vendue^ the officer adjourn the same, then he must return) that, for want of purchasers, on said day of ,1 adjourned sai'd vendue, to be held again on the day of , (not exceeding three days from the first,) when I sold, &c. (and instead of saying, I deposited the same with the cashier, &c. say,) I deposited the same with the treasurer of said company (or) corporation, (as the case may be,) or I paid the same to the said C. D. the debtor in this execution. J. M. Sheriff. Another, on Bank Shares in Connecticut* By virtue of this execution to me directed, I seized ° n bank _ * * ■ shares in Cou- thirteen shares in the — (here describe the bank,) the necticut. property of C. D. the within named debtor, by leav- ing a true and attested copy of this execution, with a certificate thereon, that I had taken said shares, to satisfy this execution, and on the same day of posted the same, &c. (proceeding as in levy- ing executions on goods and chattels,) and on the day of the day appointed for the sale of said shares, I sold at the sign post, &c. (as in other vol. i. *6 35* SHERIFF, CORONER & CONSTABLE. «■ FA - cases f) and gave to the said L. O. the purchaser of said shares, an instrument in writing, conveying to him said shares, so by him purchased ,• and also left with said cashier a true and attested copy of this ex- ecution, and of my return above stated thereon ; and the money arising from said sale being — — and the amount of debt and cost in this execution, and my fees and expenses amounting to the sum of left a surplus of the sum of which I returned to the said C. D. J. Q. Constable. When rights or shares in a turnpike company,? or other company or corporation, are taken oil execu- tion, it must he done by leaving a true and attested copy of such execution with the secretary or clerk thereof. Another, on foreign attachment, in Massachusetts. Foreign at- By virtue of this writ to me directed, I repaired techment in t t > j j of abode of C D . Qne of tbe trus tees Massac hu- * setts. within named, and ihere demanded payment of this execution, and the said C. D. then and there, in part satisfaction thereof, paid to me the sum of being all the effects, credits, or estate of J. L. tliG principal, in his, the said C. D's possession or hands, as he said. And on the same day I repaired to the usual place of abode of the said F. G. another of said trustees within named, and of him demand- ed payment of the residue of this execution, or of effects or estate of the said J. L. in the hands or possession of him the said F. G. whereon to levy and satisfy the same. And the said F. G. then and there exposed to view, one horse, as the only pro- perty, or credit of the said J. L. in his, the said F. G's hands or possession, I thereupon, by virtue of said execution, seized said horse, (Jierc describe a SHERIFF, CORONER & CONSTABLE. 355 proceeding with the horse seized, to sale, as in case of goods and chattels taken on execution in ordinary cases, in the state where the same is taken.) I also, on the day of , repaired to the usual place of abode of G. H. within named, in said , as another trustee to said J. L. and of him demanded pay- ment of the sum remaining due on this execution, which the said G. H. then and there wholly refused to make : and I then demanded of him the said G. H. goods, chattels, effects, or estate of the said J. L.in his hands, whereon to levy and satisfy this execution and all fees, but none were exposed or shown to me, nor have I found any other, or more goods, chat- tels, effects, or estate of the said J. L. nor his body within my bailiwick, wherewith to satisfy this execution. W. D. Sheriff. N. B. The above form may serve in any of the New- England states. In Connecticut, instead of the word trustee only, saying agent, trustee, factor, and debtor. Jind in Rhode-Island, attorney, agent, trus- tee, factor, and debtor. »l. FA )B6 SHERIFF, CORONER k CONSTABLE. XVI. OF LEVARI FACIAS. lev. fa. By virtue of this writ to ine directed, I have levi- ed of the rents, issues, and profits, of the lands and tenements in this writ mentioned, the sum of seven- teen pounds ; which sum I am prepared to have in court at the day and place within mentioned, as I am within required. A. B. Sheriff. Another. By virtue of this writ to me directed, I have caused to be made, collected, and levied, of the rents, issues, and profits of the messuage or tene- ment in the tenure (or possession) of the within named M. R. at the day of due and unpaid, seventeen pounds and ten shillings lawful money. And I have also caused to be made, levied, and col- lected, from the rents, issues, and profits, of a mes- suage or tenement in the tenure (or vossessionj of F. W. at the day of , due and unpaid, twelve pounds and ten shillings, like money : which certain sums amounting in the whole to thirty pounds I am prepared to pay to the use of • . at the day ami place within required, in satisfaction of the debt within mentioned, according to the command of the within writ. A. B. Sheriff. SHERIFF, CORONER & CONSTABLE. 357 XVII. OF EXECUTION LEVIED ON LANDS, (IN NEW-YORK.) By virtue of this writ to me directed, I, John Finch, sheriff of the county of Dutchess, certify, that sufficient goods and chattels of the within named C. D. to satisfy the debt, damages, and costs, (or sum of money) specified in this execution, could not be found within my county. And that therefore, and in pursuance of the command in said writ, on the 12th day of September, A. D. 1S11, I took one lot of land, called containing acres ; bounded, (here set out the hounds,) with a dwelling house and barn on said lot standing, all the lands and tenements of the said C. I), and situate in in said county of , and on the same 12th day of September, 1811, I advertised publicly, the same lands and tenements so seized, for sale at public vendue, on the 12th day of November, 1811, at the dwelling house of in in said county, by nailing up a printed (or written, as the case may he) notice thereof, and in , and in— — , and in , three of the most public places in said town, where said lands and tenements so seized, were to be sold, (and if any public newspaper is printed in said county, then) and also, by causing a similar notice of the time and place of such sale, to be printed in the pub- lic newspaper called the printed at in said county of Dutchess, for the space of six weeks pre- ceding such sale : (or, in case such lands and tene- ments are not occupied by the def aidant or defendants in such execution named, or some one of them, or by some person or persons holding the same as tenant, or purchaser, under such defendant, or defendants, and are situate in any county in the eastern or western dis- trict, in the state, in which no neivspaper is printed, r.x. om i*i»i. 358 SHERIFF, CORONER & CONSTABLE. xx. on lands, then) and also, by causing a similar notice of the time and place of such sale, to be inserted in the public newspaper printed in the city of Albany, called the in which the laws of the state are required to be printed, for six weeks preceding such sale. And on the same 12th day of November, 1811, between the hours of nine in the morning, and the setting of the sun on the same day, I sold said lands and tene- ments so seized, and advertised as aforesaid, at pub- lic vendue, to E. F. of — — , the highest bidder for them, for the sum of ; and then and there, made, executed, and delivered to him the said E. F. a good and sufficient deed of the premises so by me to him sold. And in manner aforesaid, I have caused to be made of the lands and tenements of the said C. .0. the said sum of and have the same sum of money before the court at the day and plaee within named, in satisfaction of the debt, damages, and costs within stated, as within to me is commanded. John Finch, Sheriff. Of the sale of an equity of redemption, in Massa- chusetts. Equity of re- By virtue of this execution to me directed, I took S M P at. n chu! all the right in equity, which the within named B. C. setts. the debtor, then had of redeeming the following des- cribed real estate, lying in , in said county, mort- gaged by the said B. C. to E. F. of , in said county, (addition) to wit : a certain tract of land lying in aforesaid, containing about acres, and bounded as follows, to wit : (here set out the boun- daries with all convenient certainty) the said right in equity having been previously attached by me on the original writ, on which this execution is founded ; and afterwards on the same day, being the day of , I gave notice in writing of the time and place SHERIFF, CORONER & CONSTABLE. 359 of sale, to the within named B. C. in person, (or, I"- on lanm. left a notice in writing of the time and place of sale, at the last and usual place of abode of the within named B. C.) and I gave public notice of the time and place of sale, by posting up notifications thereof at ■ and at , two public places in said town of and also by posting up notifications thereof at and at two public places in a town adjoining said and at and at two pub- lic places in and also a town adjoining said thirty days before the time of sale : and I also caused an advertisement of the time and place of sale to be published, three weeks successively be- fore the day of sale in the , a public newspaper printed in , in said county, (if any such news- paper he therein printed;) and afterwards on the day of , at a public vendue, held at the house of L. B. of aforesaid (addition) I sold to P. S. of aforesaid, (addition) for the sum of he being the highest bidder therefor, all the right in equity which the within named B. C. had, of redeeming the real estate aforesaid ,• and on the same day of for the consideration aforesaid, I made, executed, acknowledged, and delivered to the said P. S. a good and sufficient deed of said right in equity, sold as aforesaid, therein reserving to the said B. C. the liberty to redeem the said right in equity, by paying within three years, after the date of the deed aforesaid, all such sums of monev as bv the statute or law of tbe Commonwealth, in such case made and provided, he ought to pay, in order to redeem the said right in equity. All which is in full satisfaction of this execution, and all fees, the costs of levying the same execution, together with my fees amounting to . W. C Deputy-Sheriff. SHERIFF, CORONER & CONSTABLE. *! Conveyance of a right of Redemption, Know all men by these presents, that I, L. N. of , in the county of , and commonwealth of Massachusetts, a deputy sheriff under J. T. esquire, sheriff of the same county, at a public vendue, held at the dwelling-house of N. O. of , in said county (addition) on this day of , in the year of our Lord, , having given notice in writing, of the time and place of sale to the debtor in the execu- tion herein after mentioned, in person, (or having left a notice in writing at the last and usual place of abode of the debtor in the execution herein after men- tioned,) and having given public notice of the time and place of sale, by posting up notifications thereof, in two public places in said town of — — , and also by posting up notifications thereof, in two public places in each of the adjoining town3 of — — and , thirty days before the time of sale ; and hav- ing caused an advertisement of the time and place of sale to be published three weeks successively before the day of sale, in the , a public newspaper, printed in , in said county, have, by virtue of an execution, to me directed and in my hands, in favour of C D. of , in said county (addition) against T. F. of , in said county (addition) in consider- ation of the sum of , lawful money of the said commonwealth, paid to me tins day, by "W. R. of , in said county (addition) sold to tbe said W. R. he be- ing the highest bidder therefor, all the right in equity which the said T. F. has of redeeming the following described real estate, lying in aforesaid, mort- gaged by said T. F. to J. L. of , in said county (addition) to wit: a certain tract of land lying in aforesaid; containing about acres, with the buildings standing thereon, and bounded as follows, to wit; [here set ou\ Ihc boundaries the same as in the SHERIFF, CORONER & CONSTABLE. m advertisement] reserving liberty to flu- B&id T. F. to ' redeem the said right in equity, by paying irithin three years after the date of those present*., all suaid 1). E. and F. G. appointed SHERIFF, COROXER & CONSTABLE. by me for the purpose before mentioned, the said ». H. neglecting (or refusing) to ehooto ;nn person; ind the aforesaid piece of land containing aer which is particularly bounded and deseribed, as in tin foregoing return of the appraisers, will more lull;. appear, being shown to the appraisers by the said \. M. and P. T. the creditors, (or by the said S. II. the attorney of the said creditors,) as the peal estate of the said G. If. ; and the said appraisers aving Ihi i day viewed the premises, appraised the same, upea their oaths aforesaid, at the sum of , and an more, in full satisfaction of thi> execution and all fees. The costs of levying the saint- execution, to- gether with my fees amounting to , and the Baid appraisers set out the same tract of land by metes and bounds ; and on the same day of l>\ direction of the creditors aforesaid, (or by the direc- tion of the attorney aforesaid,) I levied this execu- tion on the same tract of land, and delivered to the said N. M. and P. T. the creditors seisin and pos> session of the same; (or delivered to the said S. R. the attorney, for the said creditors, for the use of the said N. M. and P. T. seizin and possession thereof.) who accepted the same in full satisfaction of tlii- execution and all fees. W. D. Deputy Sheriff. Creditors 1 receipt. Received of W. N. deputy sheriff, seizin and possession of the before described real estate, in full satisfaction of this execution and all fees. * M "> ditors. P. T.} Lvcl 36* SHERIFF, CORONER & CONSTABLE. EX- ON LANDS. On land held in common, &c. in Massachusetts. H , ss. July 15th, 1811. The within named debtor having failed to satisfy the within execution, by money or other specie, and the creditor having been unable to find personal estate to his acceptance, wherewith to satisfy the same execu- tion, and thinking proper to levy the same upon the debtor's real estate : I, E. M. sheriff of the county of H , by virtue of this writ to me directed, on this same 15th day of July, at , in said county of H by the direction of A. B. the creditor within named, levied this execution upon all the estate, right, title, and interest, of the said C. D. the within named debtor, to one certain piece or parcel of land, lying and being situate in , in said county of H , bounded Qiere describe the bounds of the land seized,) the same estate, right, title, and interest of the said C. D. in and to said land so seiz- ed, being one undivided fourth (or any other pro- portion, as the case may be,) part thereof,- held b\ him the said C. D. as tenant in common, (joint ten- ant, or coparcener, as the case may be,) together with E. F. G. H. and I. J. all of , &e. and the said A. B. the within named creditor, chose K. JL, of , in said county, (addition) and the said C. D. the within named debtor, chose M. N. of , in said county, (addition) and I, the said sheriff, chose O. P. of said (addition) all which said K. L. M. N. and O. P. are disinterested, discreet men, and freeholders in said county of H ; who were all sworn before Q. R. one of the justices of the peace of said county of H , faithfully and impartially to appraise such real estate, as should be shown to them to satisfy said execution, with all fees thereof. And the said appraisers having been shown said des SHERIFF, CORONER & CONSTABLE. 3G5 cribed piece of land, all the estate, right, title, and EX - 0N interest of the said C. D. in and to which land, had been so seized by virtue of said execution ; which estate, right, title, and interest of the said C. D. in and to the same piece of land, being as aforesaid, qne undivided fourth part thereof, held by him as a tenant in common as aforesaid, did upon their oaths, appraise all the said estate, right, title, and interest of the said C. D. in and to said described piece of land at the sum of (in satisfaction of this execution and all fees y) and all the estate, right, title, and interest of the said C. D. in, and to said described piece of land, being one fourth part there- of, having been extended at the sum of afore- said, in manner aforesaid, as the law directs ; I, the said sheriff, did thereupon, by virtue of said execu- tion, and the proceedings aforesaid thereon, give to the said A. B. {or to S. T. the attorney of the said A. sB. as the case may be,) the creditor named in said execution, the full seizin and possession of all the said estate, right, title, and interest of the said C. D. in, and to said piece of land, the same being one undivided fourth part of said described piece of land, to hold the same as tenant in common with the said other persons, named as co-tenants with him, the said C. D. of said piece of land, before the levy of this execution, in full, (or in part satisfaction, as the case may be,) of said execution, together with my fees thereon. E. M. Sheriff. The above form, omitting the introductory para- gra^ph in italics, and beginning the return with, J, E. M, sheriff of the county, &c. by virtue of this writ to me directed, &c. And substituting for the words, [disinterested and discreet men and freehold- ers;] the words following, to wit: [respectable free- 366 SHERIFF, CORONER & CONSTABLE. " X V- X^J >S holders and residents,] will be in conformity with the requirements of the statutes of New-Hampshire. On issues, rents, and profits of real estate. This form is the same as the preceding, until it comes to describe the quantity of estate the debtor has in the lands or tenements seized: All which estate, right, title, and interest of the said C. D. in and to said described lands, is an annual rent issuing there- from, payable to him the said C. D. (then insert the appointment of appraisers, and their being sworn as in the preceding, and then proceed) — and the said appraisers did upon their oaths, find and appraise (in satisfaction of this execution and all fees) the said rent then to be of the annual value of , payable by one V. W. the tenant on the described premises, to him the said C. D. ; and all which estate, right, title, and interest of the said C D. in, and to said premises described, being such rent so as aforesaid, extended at the yearly sum of , pay- able to him, the said C. D. as aforesaid, for, and dur- i»ij» the term of years, I, the said sheriff, did there- upon, by virtue of said execution, and the proceedings i hereon aforestated, give seizin of said rent, unto him, the said A. B. the aforesaid creditor, in said execution, (or to his attorney, as the case may 6c,) and did cause the said V. "W. the tenant in possession of said describ- ed premises, to attorn and become tenant to him, the said A. B. and to pay said rent to him, until the day of A. D. when the sums due on this exeeu- 1 ion, with interest thereon, and all lawful fees, amount- ing in the whole to the sum of by such payment will be fully satisfied, unless sooner redeemed, as the law directs. (Hut if the tenant refuse to attorn and be- come tenant io such creditor, then instead of the clause immediately preceding, Sflj/,) And the said V. W. bar- SHERIFF, CORONER & CONSTABLE. 3G7 ing refused to attorn, and beeome tenant to the said A. " "' \ B. I, the said sheriff, did then and there turn him, tin* said V. W. out of the said described premises, and did give livery, seizin, and possession of the same premis- es, to him the said A. B. to hold and enjoy the same, until the day of A. D. when the sums due on this execution, with interest thereon, and all lawful fees, amounting in the whole to the sum of will be satisfied out of said rent, the issues aud profits of said premises; unless sooner redeemed according to law. E. M. Sherin: The preceding form may be alike used in the states of Massachusetts, New -Hampshire, and Vermont; the officer taking care to observe in the introductory part of his return, the requisites peculiar to each slate, previous to a levy on real estate, and also the manner of appointing appi*aisers, and their qualifications. On land in fee, in Rhode-Island. Bv virtue of this writ of execution to me directed, I certify that no personal estate of C. D. the within named debtor, nor his body, can be found within my precincts, whereon to levy this execution, and for want of &uch personal estate, and of the body of the said C. D. to be found as aforesaid, on the day of at said , I levied this execution on two acres of land, with a dwelling house thci-eon, situate in , in said county, and bounded, (liere describe the bounds) and set up notifications at , and at , and at , three public places in said , where said land lies, to notify all persons con- cerned, that the same land and house, on the day of , being at the expiration of the space of three months after I levied this execution on said land and house, would be exposed to sale, to satisfy 36S SHERIFF, CORONER & CONSTABLE. bx. on land*, this execution. And on the same day of no person having appeared to redeem said land and house, I sold at public auction, said two acres of land and house, to , of , the highest bid- der therefor, for the sum of and then and there gave to him a deed of the land and house, so by me sold as aforesaid. And of the money arising from said sale, I paid and satisfied to hiin, the said A. B. the creditor in this execution, within named, the sum of in full satisfaction thereof, and re- tained the sum of to satisfy the costs and char- ges of executing this writ, and the residue of the money arising from said sale being the sum of I deposited in the general treasury for the said CD. A. L. Sheriff. Form of a deed to be given according to the above return. To all people to whom these presents shall come, I — send greeting : whereas an execution against — at the suit of , was by me the said , levied on (Jiere describe the premises,) and whereas on the day of all the estate, right, title, interest, and property of the said , in the premises afore- said, were by me, the said sold at public auc- tion for the satisfaction of the said execution, to 'who was the highest bidder therefor, for the sum of ; which the said hath since well and truly paid me, the said . Now, know ye, that by force and virtue of the law in such case made and provided, I, the said , in consideration of the sum of money paid unto me as aforesaid, do by these presents, bargain, sell, assign, and set over unto the said heirs and assigns forever, all the lands, tenements, and hereditaments, with all their SHERIFF, CORONER k CONSTABLE. appurtenances, as the same ave above described ; I:X - r,s '■* with all the estate, right, tide, interest, property, freehold and inheritance of the said , of, in, and to the said premises and appurtenances to the said — - heirs and assigns for ever. In witness, &c Another, in Connecticut. By virtue of this execution on the day of Estate in fee. I repaired to the usual place of abode of C. D. the debtor within named, in said ; and there made demand of the debt or sum of money due on this execution, with all necessary charges of executing the same, and the said C. D. having neglected to make payment thereof, and for want of personal or moveable estate of the said C. D. shown unto me, or found within my precincts, to satisfy this execution and necessary charges of executing the same; by direction of A. B. the creditor within named, I levied this execution on one piece of land lying and being situate in said , containing acres, bounded, (Jierc describe the boundaries,) the proper estate of the said C. D. in fee. And the said A. B. the creditor, chose E. F ; and the said C. D. the debtor, chose G. H. and the said creditor, and the said debtor, agreed in choosing I. J ; all to be ap- praisers of said described piece of land j all indifferent freeholders of the same , wherein the said land lies. And J. B. a justice of the peace, within, and for said county of , then and there administered to the said E. F. G. II. and I. J. the oath by law re- quired for appraisers of land taken on execution. And the said appraisers then and there, on a view of said described premises, on which this execution had been so levied, did, upon their oaths, appraise th« Tei. i. . *S 370 SHERIFF, CORONER k CONSTABLE. ex. on lanus. sam e premises, at the sum of per acre; as the then present true and just value thereof, to the cre- ditor in this execution j and the sum mentioned in this execution being and the lawful charges of executing the same execution being both which last mentioned sums amount to the sum of I on the day of set off to the said A. B. the creditor, in this execution acres and rods, of said appraised premises, in manner fol- lowing, viz. (Jiere describe the limits of the land set off,) and erected proper bounds to the same in full satisfaction of this execution, and my fees and all charges thereon. II. B. Sheriff. And on the day of I caused this execu- tion and my endorsement above thereon to be enter- ed on the records of land in said town of where said land lies. H.B. Sheriff, N. B. A term for years in land, or buildings, or parts of buildings, may, in the manner above, be set off on execution, though but chattels. And do not come within the description of personal or move- able estate, which must be sold at vendue. Another. Estate for life. By virtue, &c. (as in the preceding,) I levied this execution on all the estate, right, title, and interest of the said C. D. in, and to one certain piece of land containing by estimation acres ; bounded, &c. and the said A. B. the within named creditor, by his attorney. O. L. chose E. F. an indifferent freeholder of the same , and C. D. the afore- said debtor, neglecting to choose an appraiser, I ap- SHERIFF, CORONER & CONSTABLE. plied to J. B. esq. the next assistant (or justice of »*••» ***»■ the peace, as the case may be) who by law may judge between said parlies in civil causes, which said as- sistant, (or justice) appointed G. II. and I. J. both indifferent freeholders of the same , appraisers of the estate aforesaid, levied upon by virtue of this execution. And J. B. esq. justice of the peace for said county, then and there administered to the said E. F. G. H. and I. J. the oath bylaw prescribed for appraisers of land taken on execution. And the said appraisers did then and there, upon their oaths, ap- praise all the estate, right, title, and interest of the said C. D. in, and to said described premises, (which said estate, right, title, and interest was an estate for, and during his, the said C. D's natural life, in, and to one undivided moiety of said land and dwelling house ; and an estate in fee in the other undivided moiety of said land and dwelling house,) at the sum of as the then present true and just value thereof, to the creditor A. B. within named. And on the day of I set off to him the said A. B. the within named creditor, the whole of said laud and dwelling house, to have and to hold the one undivided moiety thereof to him, the said A. B. for, and during the natural life of the said C. D. and the other undivided moi- ety to him, the said A.V. and his heirs and assigns for ever, in satisfaction of the said sum of upon this execution, &c. (as in the form preceding.) J. M. Sheriff. Another. By virtue, &c. (as in the Jirst,) I levied this exe- cution on all the estate, right, title, and interest of the said C. D. in, and to one certain water lot wharf and store thereon standing, and situate in, &c. 372 SHERIFF, CORONER k CONSTABLE. ;. on lands bounded, &c. and the said A. B. the creditor within named, chose E. F. an indifferent freeholder of the same an appraiser, and the said C. D. chose G. H. also an indifferent freeholder of the same ; and the said A. B. and C. D. not agreeing in choos- ing a third appraiser, I applied to J. B. the next, justice of the peace, who could by law judge between the said parties in civil cases, which said justice appointed J. S. also an indifferent freeholder of the same an appraiser, and said J. B. esq. justice of the peace for said county of , then and there administered to the said E. F. G. H. and J. S. the oath by law prescribed " for appraisers of land taken on execution." And the said appraisers did then and there, upon their oaths appraise all the estate, right, title, and interest, of the said C. D. in, and to said water lot wharf and store, the same estate, right, title, and interest, being an equity of redemption in and to said water lot wharf and store, which were then and there subject to a mortgage to one M. N. of for the security of the payment of the sum of , from hiin the said C. D. to him the said M. N. at the sum of g 500, as the then present true and just value thereof, to the said A. B. the creditor in this execution. And the sum due on this execution being $ 300, and the legal costs, charges, and fees for executing- the same being $ 25, which two last mentioned sums amounting to the sum of § 325, I then and there set off to the said A. B. an estate, right, title, and interest in, and to said equity of redemption in proportion to the whole of said equity of redemption as the sum of S 325 bears to the sum of S 500, in full satisfaction of this execution, and all legal costs, charges and fees for executing the same, &c. (as in the preceding ;n.) P. Q. Constable. SHERIFF, CORONER & CONSTABLE. 37 J Another. »«•«-» By virtue, &c. (as in the preceding forms,) — on all the estate, right, title, and interest of C. 1). the debtor within named, in, and to one certain piece of land lying and being situate in said , containing 1000 acres, and bounded as follows, &c. all which said estate, right, title, and interest of the said C. D. in and to said 1000 acres of land is an equity of redemption in and to one undivided fourth part of said 1000 acres, which said undivided fourth part of said 1000 acres, is subject to a mortgage to one M. W. to secure the payment of the sum of g 500 ; and is also subject to an execution in favour of N. O. against the said C. D. levied on said equity of redemp- tion ', for the sum of g 350, both which last mentioned sums making an incumbrance on said undivided fourth part of said 1000 acres, of the sum of g 850 : and a remainder to the said C. D. in fee of one other undi- vided fourth part of said 1000 acres, after the demise of J. S. without heirs male, of his body lawfully be- gotten, the said J. S. being now living, and of the age of 50 years,- having three sons, John aged 27 years, James, aged 25 years, and Mark, aged 23 years ; which three, John, James, and Mark, are sons of him, the said J. S. of his body lawfully begotten. And a remainder to him, the said C. D. for his life, of one other undivided fourth part of said 1000 acres of land, after the determination of a term of forty years, to commence on the death of R. W. now tenant for life of the last mentioned undivided fourth part of said 1000 acres. And also a reversion in fee, of the undivided fourth part of said 1000 acres, after W. H. a trustee in possession thereof, shall, out of the issues, rents, and profits thereof, have raised the sum of g 500, for the benefit of G. R. the cestui que trust. And A. B. one of the inhabitants of the 374 SHERIFF, CORONER & CONSTABLE. EX - ^f™* town of » and agent for the inhabitants of said town, the creditors in this execution chose E. F. an in- different freeholder of a town next adjoining said town of , an appraiser; and the said C. D. chose G. H. also an indifferent freeholder of said next adjoining to said . ; and the said A. B. as agent aforesaid, and the said C. D. agreed in choosing I. J. another indifferent freeholder of said , adjoining said , where said land lies. And P. F. a justice of the peace, in, and for the said county of , administered to the said E. F. G H. and I. J. the oath by law prescribed « for apprais- ers of land taken on execution." And said apprais- ers then and there appraised said equity of redemp- tion of said first undivided fourth part of said 1000 acres, at the sum of $ 3000, as the then present true and just value thereof to the said creditors. And the said remainder, after the demise of the said J. S. without heirs male of his body, &c. at the sum of S 500, in manner aforesaid. And the said re- mainder after the determination of the said term of forty years, &c. at the sum of $ 75 as aforesaid : and the said reversion after the said trustee shall have so raised the said of $ 500, at the sum of $ 3350 : and the sum due on this executiou being S 4273 ; and the costs, charges, and my fees, for executing the same, being § 72, both which last mentioned sums amounting to $ 4345, I *set off to the within named creditors the whole of the estate, right, title, and interest, of the said C. D. in, and to the said reversion in fee, after the raising of the said S 500 by the said trustee ; and also the whole of the estate, &c., of the said C. D. in, and to the remainder in fee, after the demise of the said J. S. without heirs male, of his body lawfully begotten ; and also the whole of the estate, &c. of the said C. D. in, and to the said remainder, for his, the SHERIFF, CORONER k CONSTABLE. 375 said C. D's life, after the determination of said K ^HJ^ a ' term, at the suras at which said remainder and re- version were as above appraised. And also so much of the equity of redemption of, in, and to said first mentioned undivided fourth part of said 1000 acres, as the sum of g 3*8 dollars, bears to the sum of g 5000 ; at which the said equity of redemption was so appraised, all in full satisfaction of this execu- tion, &c. M. G. Sheriff. The four forms preceding will serve equally in Vermont, hy inserting in lieu of the icords, " indif- ferent freeholders," the ivords, " judicious, disinter- ested freeholders of the vicinity." And also, in lieu of the words, " to the creditor ia this execution," the words, " in money, to satisfy this execution with all fees." N. B. In Vermont, if both parties neglect to choose appraisers, the officer may obtain the appointment of all of them by the next justice of the peace of the same county. And a choice made by an author- ized agent to either party, is as valid as if made by an attorney, technically so called. When an execution issues in this state against the inhabitants of a county, demand for the payment thereof, must, by the officer, be made upon the treasurer of the county ; and such demand must be stated in his return. Vide st. Ver- mont, Vol. IX' i76 SHERIFF, CORONER & CONSTABLE. XVIII. OF HABERE FACIAS SEIZINAM. hab. fac. By virtue of this writ to me directed, I eertify to the justices of the court of , (or to the court,) that on the day of , at said , I caused A. B. within named to have full seizin of the mes- suage, with the appurtenances thereof, in said ■ within specified and described, in all things, as this writ requires and exacts of me to be done. S. D. Sheriff. SEIZIN. »oocx XVIV. OF HAB. FAC. POSSESSIONEM, WITH FIERI FACIAS. «iab. pac. pos. By virtue of this writ to me directed, on the day of A. B. I caused the within named A. B. to have full possession of his term within des- cribed, in the tenements within mentioned, with their appurtenances. And also, I caused to be made, of the lands and chattels of the within named C. D. the sum of g> 5, parcel of the damages within named, at the day and place within mentioned, to be delivered to the said A. B. as I am within com- manded. M. R. Sheriff. SHERIFF, CORONER & CONSTABLE. 377 UAt. fac \-ns. JLnotlier. By virtue, &c. I certify, that no one on the part of the within named A. B. came to show to me the messuage and premises within descrihed ; where- fore I could not make the said A. B. to have seizin of the said messuage, &c. G. K. Sheriff. Another. By virtue, &c. no one on the part of the said A. B. came to show me the tenements wijthin specified ; therefore I could not make the said A. B. to have possession of his said term in said tenements with their appurtenances, as by this writ is required. G. K. Sheriff. Another. By virtue of this writ, &c. I have caused the said J. B. to have seizin, (or possession) of the with- in described premises. And at the same time re- ceived of the within named C. D. the sum of being the full amount of the damages and costs con- tained in this execution. G. K. Sheriff. JV*. B. Where the damages and costs are not paid by the defendant, the proceeding to obtain the money is the same as on other executions J or the collection of money only. Vox. I. *9 ;r s SHERIFF, CORONER cS: CONSTABLE. XX. OF SEIZIN IN DOWER. Bv'virtue of this writ to me directed, and to this ■r schedule annexed, I certify to the justices, &c. that on the day of A. D. at said , I made A. B. the widow aforesaid in this writ named, to have full seizin of a third part of the manor of \ with the appurtenances thereof in the same manor specified : viz. of one hall and kitchen, and of ( wo shops in the tenure of the said J. S. with free egress and regress from and to the same. And also in the upper part of the mansion-house in the tenure of F. G. from the entry opposite the south ; And of one separate close, called H. containing by esti- mation five acres ; and of five acres of pasture, lying on the northern line of a close, called B ; and of one acre of pasture, called C; in this writ specified, to be held in severalty by the aforesaid A. B. hy metes and bounds, by the name of all the dower of the aforesaid A. B. happening to the said A. B. of the whole manor, in said writ specified ; as by the said writ aforesaid is commanded to me. L. M. Sheriff. Another. toy virtue of this writ, &c. on the day of &c. 1 mvide the said A. B. >\ido\v, in the aforesaid writ named, to liave full seizin of a third part of the manor of B. with the appurtenances in the same writ specified : viz. &c. (here recxle the jiurlicnlar* as in Ihc u-ril) to be held by the aforesaid A. B. in severalty, l>\ metes and bounds, by the SHERIFF, CORONER & C0N8TAB1& J7§ name of the whole dower fallen to her, the said ,tl * ,s A. B. from the whole manor in the writ aforesaid, ^ specified as by the writ aforesaid, to me is command- ed. A. B. Sheriff Another, in Massachusetts. By virtue of this writ to me directed, by J. S. of , J. IV. of , and J. M. of , nil of said county, disinterested freeholders, under oath admi- nistered by P. F. esq. a justice of the peace for said county of , to them the said J. S. J. N. and J. M. to set forth the same dower equally and impartially, without favour or affection, as conveniently as might be; I caused one third part of the messuage, (or tenement,) with the appurtenances situate at aforesaid, within described; viz. one kitchen and one front room, and the chamber over said front room; all on the north side of the hall in the in the dwelling house of said deceased, at , with free ingress and regress to and from said rooms, through said hall, the chamber stairs therein, and the front and back yards of said house. And five acres of land in the meadow, called A. situate at ; which five acres of land are bounded as follows, viz. (here describe the metes and bounds par- ticularly, and so of each piece of land set forth, as well as of each building, or part of building, and pri- vilege,) to be set forth to the said A. B. as her dower in the estate of C. D. her husband within named. And then and there I caused the said A. B. to have full seizin of said one third part of the afore- said messuage, (or tenement,) &c. with the appur- tenances so set forth by the said J. S. J. N. and 330 SHERIFF, CORONER h CONSTABLE. J. M. to hold to her, the said A. B. by metes and bounds. N. B. Where the estate upon which the dower is set forth, is entire, and no division can be made by metes and bounds, the estate must be specifically described, and the metes and bounds omitted in the return, as in the case of one third of rents, issues, or profits. And for levying the damages and costs in such writ, the officer must proceed as in other executions for the obtaining of money only. The above form of return may be used in New- Mampshire, varying the description of the freeholders thus, ft three freeholders of the neighbourhood, &c." instead of " three disinterested freeholders of the same county," as in the above form. Of a writ of inquiry of damages in dower, where tenant died seized. An inquisition indented, taken at in the county of , on the day of by me, E. D. sheriff of the comity aforesaid, by virtue of a writ to me directed, and to this inqusition annexed, by the oath of L. O. G. R. P. Q. &c. (to the number of twelve,) who say upon their oaths, that the within named C D. on the day of &c. at in the county aforesaid, died, seized in his demesne, as of fee, of, and in the tenements within specified. And that the tenements aforesaid, are of the yearly value in all issues beyond reprises of and that six years and three quarters of a year are elapsed from the death of the aforesaid C. D. and that the within named A. B. sustained damage by reason of the detention of her dower within specified, to the value SHERIFF, CORONER k CONSTABLE. 381 f _.. la testimony whereof, as well I, the afore- said sheriff, as the jurors aforesaid, to this inqui- sition have alternately set our hands and seal*, on the day and year and at the place abovesaid. K. D. Sheriff. W ¥ D.&c.} JurorS > 38a SHERIFF, CORONER & CONSTABLE. XXI. OF A WRIT OF SEIZIN IN WASTE. seizin m -g virtue of this writ to me directed, on the day of A. D. I delivered to, and made the ■within named C. D. to have full seizin of the within mentioned, wasted mansion house, with the appur- tenances, as is within to me commanded. And also by virtue of this same writ, on the same day and year, in my proper person, I went to the within described wasted mansion house, and there made diligent inquisition concerning the damages, which the afore^id C. D. had sustained by occasion of the vendition, and destruction within mentioned, the tenor of which inquisition is set forth in the schedule to this writ annexed. L. M. Sheriff. SHERIFF, CORONER & CONSTABLE. 38 3 XXII. OF A WRIT OF INQUIRY OF WASTE. By virtue of this writ to me directed, I, P. F. esq. inquiry i> sheriff of the county aforesaid, on the day of in my proper person, went to the tenements wasted, in said writ named and described, and then and there made inquisition, &c. as this writ requires of me. The residue of the execution of this writ appears in a certain inquisition to this writ annexed. Inquisition indented, taken at , in the coimty of—-—, on the day of before me A. B. she- riff of the county aforesaid, by virtue of a certain writ to said sheriff directed, and to this inquisition annexed, by the oaths of A. D. &c. (to the number of twelve, or 9uch number as the statute requires, J who say upon their oaths aforesiad, that A* H. and J. his wife, in said writ named, have made waste, sale, and destruction in all, in said writ named, yiz. by permitting one hall of the price of 40s. ; and two chambers of the price of 60s. ; and one stable of the price of 20s. ; to be uncovered for defect of repairs of those same houses, and by tempests and storms descending upon them, to become putrid and corrupt, &c. against the form of the provision in the same writ contained. And further, the jurors aforesaid, upon their oaths aforesaid, say, that the aforesaid A. II. and J. have made no other, nor more waste, sale, nor destruction in the houses aforesaid. In testimony whereof, ^*c P. F. Sheriff. M. R. S. D. &c. J. Jurorg, 38* SHERIFF, CORONER & CONSTABLE. XXIII. INQUISITION OF DAMAGES DONE BY LAYING OUT A HIGHWAY. In Connecticut. inquiry op BY virtue of this writ to me directed, on the day of I, in my proper person, repaired to the lands of the within named C. D. J. described in this process, situated in and across whieh. said high- way within described had been laid. And then and there made an inquisition of the damage done to him the said C. D. J. by reason of the laying out of said highway across his said land, by the oath of S. D. and M. R. both of H. in said county; and P. F. and A. M„ both of B. iu the county afore- said j and M. D. and C. C. both of M. in the county aforesaid, six disinterested freeholders, by virtue of this writ drawn from the jury boxes in their res- pective towns as the law directs, and duly sworn by I. D. esq. justice of the peace for said county, to inquire of the amount of damages done to him the said C. D. J. in manner aforesaid, a certificate whereof is hereto annexed. 'Which said jurors upon their oaths say, that the damage done to the said C. D. J. by the laying out of said highway across his lands aforesaid, amounts to sum of and no more. R. R. Sheriff- SHERIFF, CORONER & CONSTABLE. Js5 XXIII. OF A WRIT OF PARTITION. BY virtue of this writ to mc directed, and to this ** % ™ indenture in partition annexed, I, P. F. esq. sheriff of the county aforesaid, on the day of having taken with me I. D. &c. twelve good and lawful men of my county, and of the neighbourhood (or town) within written, in presence of U. F. in the writ aforesaid named, in my proper person, went to the tenements in said writ described, and there by their oath, (respect being had to the true value of those tenements, with their appurtenances,) the same tenements in partition, I caused to be parted in three equal parts, viz. twelve feet in breadth from north to soutii, and eighteen feet in length from east to west, of the messuage in the aforesaid writ, specified on the northeast corner thereof, &c. (des- cribing the parts parti cularhj, both of lands and buildings, by length of line and boundaries.) I, the the aforesaid sheriff, on the same day of A. D. caused — to be delivered aaid assigned to H. F. in said writ named to be held to him in severalty, acceding to the form and effect of the writ aforesaid, and as this same writ requires and commands. Which whole third part of the tenements afore- said in the writ aforesaid, Tassigned and delivered to the said II. F. And as to the two remaining parts of the aforesaid tenements in the writ aforesaid sne- eified, belonging to I. F. in the same writ named and in the partition aforesaid to be delivered to him, I certify, that no one on the part of the said I. F. came to receive of ioe. the aforesaid sheriff*, the said vol.. i. 50 SSG SHERIFF, CORONER & CONSTABLE. pahtitiok. two parts, so that those two parts aforesaid to the said I. F. I eould not deliver nor assign, as this writ commands and requires. In testimony whereof, as well I, the aforesaid sheriff, as the said twelve ju- rors, to this indenture of partition, have put our seals, and signed the same with our hands, on the day and year aforesaid. P. F. Sheriff. SHERIFF, CORONER k CONSTABLE. •«-• XXV. OF SUPERSEDEAS. I CERTIFY to the court, (or to the justices of wanummu, the court) that before the coming of this writ to me directed a writ of supersedeas came to my hands, the tenor of which same writ of supersedeas follows in these words, viz. (here set out the supersedeas,) by reason of which I could not proceed to the execu- tion of the said writ first above meutioned, as I aui commanded therein. A. R. Sheriff'. Another. I certify, &c. that after the coming of this writ to me directed, to wit, on the day of before the return day thereof, and before I had commenced the execution of the same, a writ of supersedeas came to rny hands; the tenor of which, &c. (the same as in the preceding form.) A. R. Sheriff'. Another. I certify* tffc. that on the day of after the coming of this writ, to me directed, I was duly notified, that a lawful writ of error with bonds there- on given, had been issued for the reversal of the judgment on which the writ first above meutioned was issued, by a copy of the same writ of error having been then and there left with me, certified by F. G. deputy sheriff" for said county of , the tenor of which copy of said writ of error and certificate thereon, follows in these words, to wit : (here set out the copy of the writ of error.) By reason of which I could not proceed to the execution of the said writ first above mentioned, as therein is required of me. A. L. Sheriff. 3SS SHERIFF, CORONER & CONSTABLE. XXV. OF IIOMINE REPLEGIANDO. HOMINE 8F- I'l.EGIANDO. BY virtue of this writ, &c. I certify, that no other writ of replevin of the said W. S. than this pluries writ of replevin of the said "W. S. has come to my hands or was delivered t6 me. Nevertheless, I cer- tify, that immediately after the reception of the same writ, I went to make replevin of the said W. S. from him the said J. B. but the said J. B. would not show to me the said "W. S. And that the said J. B. had, in fact, before the coming of this writ to me, eloigned the said W. S. to places unknown to me ; and that, after the accept! on of this writ, the said W. S. has not been found in my bailiwick, so that I could not make replevin of her the said W. S. in any manner according to the command of this writ, as of me with- in is required. A. B. Sheriff. Another. I certify that the aforesaid W. S. before the com- ing of this writ to me, was eloigned to places unknown to me bv the within named S. B. S.T. and R. F. by reason of which, I could not nor can make replevin of the aforesaid W. S. asl am within commanded. A. B. Sheriff. SHERIFF, CORONER & CONSTABLE. 339 XXVI. OF HABEAS CORPUS CUM CAUSA. BY virtue of this writ I certify to you, that before " A ^ the coming of this writ by virtue of another writ be- fore directed to me, A. B. within named, was in the prison at , and there lay sick and infirm, and in the same prison as yet lies sick and infirm, so that I cannot, for fear of his death, remove him. There- fore, I cannot have the body of tbe said A. B. at tlie Another. By virtue of this writ to me dircoted, and to this schedule annexed, I certify, that at the day and place SHERIFF, CORONER & CONSTABLE. »M in the same writ specified before the coming of said "^ writ to me, F. G. in the same writ mentioned, was committed and detained under my custody by -a cer- tain order made at the court of general gaol delivery, held at M. in the county of N. on the day of A. I). before S. C. and J. L. esquires, justices, who held said court of gaol delivery, in the county aforesaid, which orders follows in these words : {here set out the order verbatim at full length) and also that the aforesaid F. G. was, and is detained in the prison aforesaid under my custody, and by virtue of a certain writ of , against the same F. G. at the suit of J. A. of a plea of trespass. And also on a writ of him J. A. against him F. G. £20, return- able to the court of , to be held on the day of A. D. at , in the county of And that these are the reasons of the taking and de- tention of the said F. G. under my custody., Yet the body of him F. G. I have ready at the day and place in the writ aforesaid mentioned, as the same writ commands and requires. A. B. Sheriff. Another. I certify, &e. that before the coming of this writ to me directed, the within named J. S. was committed to the common gaol under my custody, by virtue of a certain warrant signed by L. M. justice of the pea< .-e for certain acts of treason (or felony) plainly and s; cially expressed in said warrant, by him the said J. ». to have been committed, which warrant of commit- ment in these words and figures, to wit : (here set out the warrant veraatim,) therefore I eannot have the body, &e. A. B. Sheriff.- SHERIFF, CORONER k CONSTABLE, Another. I, L. K. sheriff of the county of , do certify, that at the day and place in the schedule to this writ annexed, he fore the coming of this same writ to me, A. O. in sard writ named, was taken within the coun- ty aforesaid, hy W. Y. esquire, late sheriff of the county aforesaid, and in the prison in , in said county, in the custody of the same late sheriff was safely kept by virtue of a certain writ of capias ad satisfaciendum (or execution) against the said A. O. tested at , on the day of to satisfy , the sum of debt, and the sum of costs (or damages) in which sums the said A. O. was before — — condemned (or for which said sums judgment had been rendered by the justices of the court . aforesaid, against him the said A. O.) For the cause, and in the manner aforcstated, the body of the said A. O. was so taken and detained in prison by the said late sheriff. And I, the aforesaid L. K. now sheriff of the county aforesaid received the said A. O. within the prison aforesaid, from the said late sheriff, at the time of his going out of office, and within the same prison, held the body of the said A. O. in safe custody until afterwards, to wit, on the dav of A. D. I received a certain writ, of super- sedeas, to me directed, the tenor of which follows in these words : (Jiert set out the writ of supersedeas.} And for that the said A. O. was not committed for any other cause, I permitted him, the said A. O. to go at large, the said writ of capias ad satisfaciendum (or execution) notwithstanding, as in and by said writ of supersedeas to me is commanded. Therefore, I can- not have the body of the said A. O. before the jus- tices of the supreme court (or supreme judicial court, or before the supreme court, or before the superior court, or before the said E. Q. one of the justices.. SHERIFF, CORONER & CONSTABLE. 393 or judges of the supreme or superior court) in as by this writ is required of me. L. K. Sheriff. Another. s f I certify, &c. , committed for suspicion of trea- son (or felony, or as accessary to a felony committed before the fact) plainly and specially expressed in said warrant by him the said J. S. to have been com- mitted, which said warrant of commitment is in these words following, to wit : (here set out the warrant verbatim) therefore I cannot have the body of him the said J. S. &c. A. B. Gaolerl Another, in Massachusetts. I certify; &c. that the said J. T. was, on the day of by , deputy sheriff, committed to the gaol under my custody, on mesne process, for want of reasonable bail ; and that at the time of the commitment of the said J. T. the said deputy sheriff left with me the said keeper, a copy of the original writ, on which the said J. T. was by him taken, with his the said deputy sheriff's return on said writ, on said copy endorsed, all which are in these words, to wit : (here set out said copy of said original writ, and of said return of said deputy sheriff) therefore I can- not have the body of the said J. T. &c. A. B. Gaoler. Another, in Connecticut. I certify that, &e. ( as in the preceding J was taken at , in said county, by , deputy sheriff, by vol. i. 51 394 SHERIFF, CORONER & CONSTABLE. i»AE. CORP. virtue of an execution issued on a judgment ren- dered by court, held at , in the county of , on the day of (or by A. B. justice of the peace, in, &c.) for the sum of damages, and for the sum of tost, in favour of , against him the said C. D. dated the day of returnable within days next ensuing, (or to tlie next ■ court, to be holden at ) and signed by — — , clerk of said court, (or by , justice of the peace) and by said deputy sheriff, committed to my keeping within the prison whereof I am keeper as aforesaid. And that the said deputy sheriff, at the time of committing him the said C. D. in execution as aforesaid, left with me the said keeper, a copy of said execution, and of his endorsement thereon, in these words : (here set out said copy of the execution} and of the ojjicei^s endorsement.') And that on the day of at said prison, J. T. justice of the peace for said county, administered to him the said C. D. so then in prison on execution, the oath by law provided for the relief of poor prisoners imprisoned for debt, and certified the same on the back of said copy of said execution so left with me the said keeper, by said deputy sheriff. And that on the same day of immediately after said oath was so admin- istered to said C. D. A. B. and the creditor named in said execution left with me the said keeper, the sum of , for the support of the said C. D. the said debtor, as the law directs. And I further certify, that the sum by the county court (or by, &e.) allowed for the support of the said C. D. at the time of the said C. D.'s taking the oath as aforesaid, was per week, and so continued until the day of when the sum allowed per week was the sum of and no more. And which said sum of money so left by the said A. B. for the support of the said C. D» is not as yet expended, but there still remains in my SHERIFF, CORONER & CONSTABLE. 5 9 hands the sum of parcel thereof, for the future "^JJJr support of the said C. D. And that the said C. D. is not committed nor held by me for any other cause, or in any other manner than as is above stated. Where- fore I cannot have the body of the said C. D. before the said supreme court (or before the said L. M. judge of the superior court) at the day and place within re- quired. A. B. Gaoler. Z96 SHERIFF, CORONER 6c CONSTABLE. XXVII. OF SUMMONS OF ASSIZE. zt - By virtue of this precept to me directed, I have made to come before the justices of oyer and terminer and gaol delivery within written, at the day and place within named, twenty-four good and lawful men of said county (or city and county) of , to inquire for the people of the state of (or for the state of) and the body of the same county (or city and county j of , and to do and receive all those things which on behalf of the people of the state, of (or in behalf of the state of ) shall be then and there enjoined them. And also the prisoners being in the gaols thereof, together with their attach- ments, indictments, and all other minuments any way concerning those prisoners. And likewise so many good and lawful men of the same county (or city and county) duly qualified to serve as jurors therein, as the said court of oyer and terminer and gaol delivery (or justices of said court of oyer and terminer) hath directed, by whom the truth of the matter may be better known and inquired into, and who have no af- finity to the prisoners. And I have caused to be publicly proclaimed throughout said county (or city and county) that all those who will prosecute against, those prisoners, be then and there to prosecute against them as shall be just, and have given notice to all justices of the peace, coroners, bailiffs, and constables within said county (or city and county) that they be then and there in their own proper persons, with their rolls, records, indictments, and other remembrances, to do SHERIFF, CORONER & CONSTABLE. s»7 those tilings which to their offices in that behalf ap.wM.of **«**• pertain to be done, und am pre seat attending, in m\ proper person, to do those things which to my suit! office of sheriff appertain to he done. The residue of the execution of this precept, is con- tained in the schedule hereunto annexed. A.B. Sheriff. 398 SHERIFF, CORONER k CONSTABLE. XXVIII. OF WARRANTS OF DISTRESS. Against a deficient Collector of Taxes, in the State of New-Fork. WARR. OF CIS TRESS. I certify, that the within named C. D. has not any goods or chattels found within my bailiwick : and that, by virtue of this warrant to me directed, I have caused to be made of the lands and tenements of the within named C. D. the sum of $ 100, part of the said sum of £ 800 dollars within contained y which said sum of 8 100 I have ready to be delivered to the within named E. F. according as this warrant re- quires. And I further certify, that the within named C. D. has no other or more lands or tenements where- of I can cause the residue of the money within men- tioned to be made or levied, as I am within com- manded. J. S. Sheriff. Another, in Massachusetts, for a Judgment Debt due to the Commonwealth. By virtue of this warrant to me directed at C. in said county, on the day of A. D. I distrained one horse, the property of the within na- med J. D. and, on the day of A. D. at the dwelling-house of E. F. in C. aforesaid, hav- ing given notice by posting up notifications at . and at , two public places in said C. four days be- fore the said day of that said horse would then be sold at public vendue at said dwelling-house, I ac- cordingly then and there sold said horse to G. H. the highest bidder therefor, for the sum of and, on the day of by virtue of this same war- SHERIFF, CORONER & CONSTABLE. 399 rant, I took three acres of land, the estate of said WARR - 0F ma - TRUSS C. D. situate in said C. bounded, &c. (lure describe the bounds) and posted up notifications at and at two public places in said C. and also at and at two public places in D. a town adjoining to said C. and also at and at two public places in E. another town adjoining to said C. that the said three acres of land would be sold at public vendue to the highest bidder, on the day of thirty days after the day of posting up such notification as aforesaid) at the dwelling house of , in said C. [and also caused an advertisement of the time and place of such sale to be published in the public newspaper called the printed at in said county * three weeks successively before the day so appointed for the sale of said three acres of land ;] and on the said day of at said dwelling house, I sold said three acres of land at public ven- due, to L. N. the highest bidder therefor, for the sum of and then and there made, executed, ac- knowledged, and delivered to him the saidL. N. a good and sufficient deed of conveyance thereof And on the day of there still remaining due on this warrant, the sum of and the said C. D. having no other, or more goods or estate, found within my bailiwick, for want thereof, I, by vir- tue of this same warrant, took the body of the said C. D. at aforesaid, and him committed to the gaol of this commonwealth, at in said county, and left with the gaoler of said gaol an attest- ed copy of this warrant, and of my proceedings above stated, endorsed thereon. * If there be no newspaper printed in the same county, then say, " printed at , in , tlie county nearest to where such land lies, there being no such paper printed in the county of ." (If the real estate taken be of Jess value than £ 100, the advertisement in the newspaper may be omitted.) iOO SHERIFF, CORONER & CONSTABLE. WARR. OF DIS- TRESS. Another, levied on real estate of a sheriff, deputy-* sheriff, or constable, for default in not executing warrants issued for the collection of taxes. By virtue, &c. I took one acre of land situate in D. in said county, and bounded, &c. with a dwelling house thereon, the property of the within named C. D. and gave notice that the same land and dwelling house, would, on the day of A. D. at A. in said D. be sold at public vendue to the highest bidder, by posting up advertisements fourteen days previous to such sale, at , and at , two public places in D. aforesaid, where said land and house are situate; and also at and at two public places in E. a town adjacent to said D. and at , and at— »— two public places in F. another town adjacent to said D. And on the same day of so appointed for the sale of said land and house, at said A. I sold the same land and house at public vendue to L. M. the highest bidder therefor, for the sum of and then and there made, executed, acknowledged, and delivered to the said L. M. a good and sufficient deed of conveyance thereof, as the law directs ; and on the day of I paid to the within named treasurer of the sum of being the amount then due on said warrant from him the said C. D. and on the same day, I returned to him the said C. D. the sum of being the overplus of the money arising from said sale, after deducting therefrom the said sum so paid to said treasurer, and the charges and fees for executing this warrant. G. H. Sheriff, WARR. f/l- Mi- Ill I SllERIFF, CORONER & CONSTABLE. 401 Another, in New -Hampshire. By virtue, &e. (as in the preceding form in Mas- sachusetts, till the giving notice of time and place of sale, J I gave notice, &e. by posting up advertisements thereof, on at a public place in said C. where the estate so taken, lies, and at , a pub- lic place in D. a town adjoining to said C. and also at a public place in E. another town adjoining to said C. thirty days before said day of so appointed for the sale of said land, &c. And in said advertisements stated the amount to be satisfied bv such sale and that payment must be made in money (or other things as the case may be) for the purchase of said land. And on the day of at said sold, &c. (as in the preceding form.) X. Y. SherifT. Another, in Vermont. By virtue, &c. I distrained forty five sheep, the property of the said C. D ; and fourteen days before the day herein after mentioned, for the sale of the said distress, gave public notice by posting such dis- tress at , a public place in said C. where such distress was made, that such distress would be- sold at , in said C. at public vendue on the day of and then and there on said day of at said C. I sold said forty five sheep to F. G. the highest bidder for them, for the sum of per head ; amounting to the sum of in the whole. And that at said C. on the day of by vir- tue of said warrant, I took fifty acres of wood land, situate in said C. and bounded, &c. {here describe vox. i. 52 *03 SHERIFF, CORONER & CONSTABLE. >VARR. Or DIS TRESS. the bounds,') and published three weeks successively in the news paper printed at j in which, by law, land taxes are to be published, that the said fifty acres of land so taken would, at said , in said C on the day of ten days after the day of publishing the same in said newspaper, be sold at public vendue to the highest bidder. And on the day of aforementioned, at r*— in said C. I sold the said fifty acres of land to F. G. the highest bid- der fcr them, &c. (as in the form preceding in Mas- sachusetts.) M. R. Sheriff. othenvise, as the case may be. &c.) And the jurors aforesaid, upon their oath afore- said, say, that the said T. C. (or the said person unknown,) in manner and form aforesaid; and not otherwise, nor by any other means came to his death. In testimony whereof, as well the said jurors as the said coroner, (or justice of the peace,) have sub- scribed this inquisition with their hands, and affixed thereto their seals, on the day and year abovesaid. v.n.&c. } J " rors - J. A. Coroner, (or. justice of the peace.) Another, by murder. An inqusition taken at H. in the county of N. on jb»> day of before W. D. gentleman, one of the coroners of the said county of N. upon the view of the body of G. D. gentleman, then and SHERIFF, CORONER & CONSTABLE. *03 there lying dead, upon the oath of J. >V. (Jc. to'^-^J^"- inquire how, and in what manner, the aforesaid G. D. came to his death; who say, that I. II. of the county aforesaid, yeoman, D. E. D. 15. and divers others, not having the fear of God heforc their eyes, but moved and seduced by the instigation of the devil, on the 23d day of May, A. I). 1812, at II. aforesaid, in the county aforesaid, about ten o'clock of the forenoon of said da>', from their malice afore- thought, feloniously as felons, upon the said G. I). then and there an assault and affray made, and that the aforesaid I. H. with a certain sword of the value of live dollars, which sword the same I. H. held in his right hand, then and there feloniously struck the said G. D. and gave him the said G. D. then and there one mortal wound upon the left knee, of the said G. D. whollv cutting asunder a certain bone called the pan of the knee, of the aforesaid knee of the said G. D. of which certain mortal wound, the same G. D. languished from the said 23d day of May, and languishing did live until the 4th day of the month of June, A. D. 1812, on which same fourth day of June, the same G. ]). of the mortal wound aforesaid, at It. aforesaid, in the county aforesaid, died. And the jurors aforesaid, upon their oath aforesaid, say, that the aforesaid I. II. in manner and form aforesaid, the aforesaid G. D. feloniously and of his malice aforethought, killed and murdered, against the peace and dignity of this State, (or Com- monwealth.) And further, the aforesaid jurors, upon their oath aforesaid, say, that the aforesaid D. E. D. B. &c. at the time of the felony and murder aforesaid, done and committed, to wit: on the twenty-third day May, aforesaid, in the year 1812, aforesaid, about ten o'clock in the forenoon of the same day, feloniously were present with swords, &c. then and there helping, assisting, abetting, com- 406 SHERIFF, CORONER & CONSTABLE. in«. oFDtATH.forting, and maintaining the aforesaid I. H. to the felony and murder aforefaid, in form aforesaid, done and perpetrated against the peace and dignity of this State, {or Commonwealth,) and the laws of the same. In testimony whereof, &c. Another. Upon their oaths, say, that W. C. of — — , in the county of aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, on the day of at said , with force and arms, feloniously, wilfully, and of his malice aforethought, in, and upon the said J. L. did make an assault. And that he, the said W. C. with a certain knife called a cutteau, of the value of twenty five cents, which he the said W. C. in his right hand then and there had and held, the said J. !L. in, and upon the- left side of the said J. L. be- tween his ribs, about four inches from the breast bone of him, the said J. L. the said W. C. did then and there give a mortal wound, of the width of one inch, and the depth of five inches, of which mortal wound, so given by the said W. C. in manner afore- said, the said J. L. languished from the said 4th day of August, A. D. 1809, until the 9th day of December, A. D. 1809 ; on which 9th day of De- cember, A. D. 1809, the same J. L. of the mortal wound aforesaid, died. And so the jurors aforesaid, upon their oaths aforesaid, say, that the said W. C. in manner and form aforesaid, of his malice afore- thought, did kill and murder him, the said J. L. against the peace and dignity of this State, (or Commonwealth,) and the laws of the same. In tes- timony, &c. SHERIFF, CORONER & CONSTABLE. 407 Another, of manslaughter. ,Nft ' Upon their oaths, say, that T. M. of, &c. on, &c. at, &c. on a sudden quarrel between him the said T. M. and him the said J. S. he, the said T. M. not having the fear of God before his eyes, but moved and seduced by the instigation of the devil, in, and upon him the said J. S. did, then and there, with force and arms, wilfully, and feloniously make an assault ; and with his, the said T. M's right fist clenched, did then and there give to him, the said J. S. one mortal wound on the left side of the head of him the said J. S. under the left ear of the said J. S. of which mortal wound, so in manner aforesaid given, by him the said T. M. the same J. S. then and there immediately died. And so the jurors afore- said, upon their oath aforesaid, say that the said T. M. did then and there in manner and form afore- said, wilfully and feloniously kill and slay him, the said J. S. against the peace, &e. Another, of self murder. Upon their oath, say, that the said R. R. on the day of at &c. not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, in and upon himself, the same R. B. then and there, wilfully, feloniously, and of his malice aforethought, did make an assault. And that the said R. B. with a certain razor of the value of six cents which the said R. B. then and there had, and held in his right hand, himself, in, and upon the throat of him, the said R. B. did then and there wilfully, feloniously, and of his malice aforethought, strike and cut, and then and there gave to himself with the said razor one mortal wound of the length of five inches, and of the depth of one 403 SHERIFF, CORONER & CONSTABLE. iN**• »•» OFF FEKS the said C. D. was indebted to the said A. B. in the sum of for certain fees, perquisites, and sums of money, before that time due, and owing, and of right payable, from the said C. D. to the said A. B. as a sheriff, (or under sheriff, or deputy sheriff, of the county of ,) (or constable of the town of ,) (or coroner, or high bailiff of the county of ,) (or town sergeant of the town of ,) upon, and for the execution of divers writs, precepts, and processes, for the said C. D. at his special interest and request. And also, upon and for the work and labour, trouble, care, diligence, journies, of said A. B. as such sheriff as aforesaid, (or such deputy, &c.) by him before that time done, performed, and bestowed, in and about the execut- ing and serving of the said writs, precepts, and processes; and in and about the conducting, guard- ing, and keeping divers persons arrested by him, the said A. B. for him the said C. D. under and by virtue of the said writs, precepts, and processes, at the like *12 SHERIFF, CORONER & CONSTABLE. assump. for special instance and request of him, the said C. D. ; °J^y-o and being so indebted, he, the said C. D. in consi- deration thereof afterwards, to wit, on the day and year last aforesaid, at aforesaid, undertook, and then and there faithfully promised the said A. B. to pay to him the said sum of money, when he, the said C. D. should be thereunto afterwards requested. Yet the said A. B. saith, that the said C. D. his promise and undertaking aforesaid not regarding, hath never paid to him, said A. B. the said sum of money, nor any part thereof, but still unjustly neglects and refuses to do it, though he, the said C. D. hath often been requested to pay the same; to the damage of the said A. B. as he saith> the sum of and therefore he brings this suit. Debt, for escape on execution. Debt tor cs- That the said A. B. by the consideration and judg- cape. merit of the justices of the court of , held in and for the (or our) county of , on the day of recovered against one E. F. a certain debt of S and also g costs, which in and by the same court were adjudged the said A. B. (or the sum of g as damages, and g costs, adjudg- ed, &c.) as by the record and proceedings thereof, now remaining in the same court, at — r- aforesaid, will more fully appear.* And the said A. B. further saith, that on the day of he sued and pro- secuted out of said court a certain writ of execution, (called a capias ad satisfaciendum,) upon the judg- ment aforesaid, against him the said E. F. directed to the sheriff of the county of M. by which said writ the said sheriff was commanded to take the * In Connecticut, the jitaiatifl makes a profert of the record, as of a deed. SHERIFF, CORONER & CONSTABLE. 415 CAPE. body of the saitl E. F. if lie should he found within 81 ™ ™ " his bailiwick, and him safely keep, so that the said sheriff might have his body before the justices of the court, at , on the day of , to satisfy the said A. B. the debt and costs aforesaid (or the damages and costs aforesaid) in form afore- said recovered. And that the said sheriff of M. should have there that writ, which said writ after- wards, and before the delivery thereof to the said sheriff of M. to be executed, as is herein after mentioned, was duly endorsed with a direction to the said sheriff, requiring him to levy S besides sheriff's poundage, officer's fees, and other inci- dental expences. And which said writ, so endorsed as aforesaid, afterwards, and before said return thereof, to wit, on &c. was delivered to the said C. D. who then, and from thenceforth, until, and at, and after the return of the said writ, was sheriff of M. to be executed in due form of law ; and by vir- tue of which said writ, and said endorsement so made thereon as aforesaid, the said C. D. so being sheriff of M. as aforesaid, afterwards, and before the return of said writ, to wit, on, &c. last afore- said, and within the bailiwick of the said sheriff of M. to wit, at, &c. aforesaid, took and arrested the said E. F. by his body, and then and there, by virtue of the said writ, and of the said endorsement so made thereon as aforesaid, had and detained him in his custody, in execution, for the said sum of $ so endorsed on the said writ as aforesaid, be- sides sheriff's poundage, officer's fees, and all other incidental expenses ; and kept and detained him in his custody, from thence until the said C. D. so be- ing sheriff of M. as aforesaid, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, without the leave or licence, and against the will of the said A, B. suffered and permitted the said E. F. to es- 4# SHERIFF, CORONER & CONSTABLE. rs of the custody of him the said C. D. (he the said. C. D. then being sheriff of M. as aforesaid, and the said sum of $ so endorsed on said writ as aforesaid, being then and still wholly unpaid and unsatisfied to the said A. B. to wit, at &c. afore- said, whereby an action hath accrued to the said A. B. to demand and have of and from the said C. D. the sum of , above demanded ,•) Yet the said C. D. though often requested so to do, hath not a.> yet paid the said sum of above demanded, nor any part thereof, to the said A. B. but he to do this hath wholly refused, and still doth refuse, to the damage of the said A. B. of S and there- for he brings this suit, &c. Debt on bail bond by sheriff. That one A. B. of , on the day of sued out of court, held at , in the county, of , on the day of against one C. D. a certain writ, called , directed to the sheriff of M. him commanding to take the said C. D. if he should be found in his bailiwick, and him safely keep, so that he might have his body before the justices of the court, , to be held at in the — - county of , on the day of to answer to the said A. B. in a plea, (here describe the nature of the action as mentioned in the writ on which the de- fendant was arrested) to the damage of the said A.B. £> as it was said, and that the said sheriff would have there that writ : which said writ, afterwards, (here state particularly the endorsement for bail f if such be necessary , in the stale where this form may be used) on the day of at , in said county of delivered to the said E. F. who then, and from thence, until, at, and after the rc- T>el>lon bail bumi. SHERIFF, CORONER & CONSTABLE. MS BONI/. iurn of the said writ, was sheriff of the said county D£BT 0N ,Ml of M. in due form of law to be executed. By virtue of which said writ, the said E. F. so being sheriff us aforesaid, and within his bailiwick as such sheriff, to wit, at, &c. as aforesaid, took and arrested the said C. D. by his body, and then and there had and detain- ed him in his eustody, as such sheriff, at the suit of the said A. B. for the cause aforesaid. And the said C. D. so being arrested and in custody of the said E. F. so being sheriff as aforesaid, by virtue of the said writ, at the suit of the said A. B. the said C. D. afterwards, and before the said return of the said writ, to wit, on the day of last aforesaid, and within his bailiwick, as such sheriff, to wit, at, &e. aforesaid, took bail for the appearance of the said C. D. at the return of the said writ, according to the form of the statute in such case made and provided. And on that occasion, the said C. D. (or if the action be against one of the bail, the said G. H. as bail and surety for the said C. D.) then and there, to wit, on, &c. last aforesaid, at, &c. aforesaid, by his certain writing obligatory, commonly called a bail bond, seal- ed with the seal of the said G. II. and now shown to the court, the date whereof is on the same day and year last abovesaid, acknowledged himself to be held and firmly bound to the said K. F. so then being sheriff of the county of M. as aforesaid, as such sheriff by the name, description and addition of E. F. sheriff of the county of M. in the penal sum of § to be paid to the said sheriff, or his said attorney, executors, administrators or assigns, when fce the said G. H. should be thereunto afterwards re- quested, with and under a certain condition thereun- der written, that if the said C. D. should appear be- fore the justices of the said — court, so to be holden at on the day of next, toanswertosaid A. B* iu a plea of — — - . (//ere follow the description of *16 SHERIFF, CORONER & CONSTABLE. debt on *Aii, the action, as mentioned in the hail-bond.*) That then BOND. the said obligation to be void, otherwise should be and remain in full force and virtue. As by the said writing obligatory, and the condition thereunto an- nexed ready in court to be shown, more fully appears. And the said E. in fact saith, that the said C. D. did not appear before the said justices of the said QO\ivt , held at aforesaid, on the day of aforesaid, next after the execution and deliv- ery of, and in the condition of the said writing ob- ligatory mentioned, according to the exigency of the said writ, but therein wholly failed, and made default, whereby the said writing obligatory, became, was, and is forfeited. Yet the said C. D. (or if against hail, the said G. II.) (though often requested so to do,) hath not as yet paid the said sum of g above demanded, nor any part thereof, to the said E. F. so being sheriff of said county of M. as afore- said, but hath hitherto wholly neglected and refused so to do, and still doth neglect and refuse to pay the same, or any part thereof, to him the said E. F. so being sheriff of the county of M. as aforesaid, to the damage of the said E. F. g and therefore he brings suit, &c. Case for an escape on mesne process. laft f r cs- That one F. G. heretofore, to wit,on,£?c. was indebt- oape. C( | ^ t jj C g^d ^ # jg m a ] al .g e sum f money, to wit, the sum of g for so much money by said F. G. before that time had and received to and for the use »«f the said A. B. ; and being so indebted, he, the * In Massachusetts, New-Hampshire, Vermont and Rhode-Island, the condition of a hail bond is not only for the appearance of the party o answer the suit, hut also, that he abide the order and judgment of rbe court thereon, which ought to be stated in the declaration, and the (/roach, Jcc. assigned according to the fact. SHERIFF, CORONER & CONSTABLE. 417 said F. G. in consideration thereof afterwards, to^s* *» «- wit, on, &c. aforesaid, at, &c. aforesaid, under- took and faithfully promised the ssid A. B. to pay to him the said sum of g when he, the said F. G. ihould be thereunto requested, but the said sum of S being wholly unpaid to the said A. B. and the said promise and undertaking of the said F. G. being wholly unperformed, he, the said A. B. for the recov- ery of his damages by him sustained, on occasion of the not performing of the said promise and undertak- ing of the said F. G. afterwards, to wit, on the day and year aforesaid, sued and prosecuted out of the court, £s*c. (here state the writ [and the endorsement for hail, if any,] the delivery to the sheriff, and the. arrest as in the preceding form on bail bond, and then proceed as follows,) yet the said C. D. so being sheriff of the county of M. as aforesaid, not regard- ing the duty of his office as such sheriff, but con- triving and intending wrongfully and unjustly to in- jure the said A. B. and to delay and hinder him in. and from the recovery of his said debt afterwards, to wit, on, &e. last aforesaid, at, &c. aforesaid : without the leave or licence, and against the will of the said A. B. suffered and permitted the said F. G. to escape, and go at large wheresoever he would, out. of the custody of the said C. D. so being such sheriff as aforesaid, the said debt for which the said F. G. was so arrested as aforesaid, and every pari thereof, then and still being wholly unpaid to lh> said A. B. And the said A. B. in fact, saith, that the 'said F. G. did not appear in the said— court - , at the return of the said w lit, according to the exigency thereof, but therein wholly failed and made default; whereby the said A. B. has been, and is greatly injured and delayed in the recovery of hi*-, aforesaid debt, and is likely to lose fho same ; and thereby also, he, the said A. B. hath lost and hern vol. i. 5-i iis SHERIFF, CORONER & CONSTABLE. case tor ts- deprived of the means of recovering his costs and CAPE K^^r^j charges by him paid, laid out, and expended in and about his said suit so commenced and prosecuted a- gainst the said F. G. as aforesaid, amounting toge- ther to a large sum, to wit, the sum of $ to wit, at, &c. aforesaid. « Seeoud count. [The same as in the jirst count to the end of the statement of the delivery of the writ to the sheriff, and then proceed as follows.] And the said A. B. in fqct, saith, that the said F. G. at the time of the delivery of said last mentioned writ to the said C. D. so being sheriff of the county of M. as aforesaid, and thence until the return of the said last mentioned writ, was within the said sheriff's bailiwick ; and the said sheriff at any time during that period, might have taken and arrested the said F. G. by virtue of the said last mentioned writ, at the suit of the said A. B. if he would so have done ; whereof the said C. D. so being sheriff as aforesaid, during all that time had knowledge: yet the said C. D. so being sheriff of the county of M. as aforesaid, not regarding the duty of his said office, but contriv- ing and intending, wrongfully and unjustly to injure the said A. B. and to delay and hinder him in and from the recovery of his debt last aforesaid, did not, nor would [at any time before the return of the said last mentioned writ, although often requested so to do,] take, or cause to be taken, the said F. G. as by the said last mentioned writ, he was commanded ; but thereof wholly failed and made default: and the said F. G. did not appear, &c. [the same as the first • count to the end, and conclude,] to the damage of the said A. B. as he saith, the sum of g and therefore he brings this suit. SHERIFF, CORONER & CONSTABLE. *19 [Same as in the first count to the end of the stn/f- tASE F(i L • ment of the escape, as far as to the obelisk, and then s- *-v-"»~' proceed as follows:] And the said C. I), so bein£ Thmlcount ' sheriff of M. as aforesaid afterwards, to wit, on, &c. {the return day) being the day of the return of said writ, to wit, at £?c. aforesaid, falsely and de- ceitfully returned upon the said writ, to the said court , that the said F. G. was not found in the bailiwick of the said C. D. so being surh sheriff as aforesaid, to wit, at, &c. aforesaid, and the said F. G. did not appear, &c. [as in the first count to the end.] For a false return of nulla bona to an execution, against goods and chattels. [Same as in debt against the sheriff for the escape False rslliri - of a prisoner in his custody on execution, to the refer- ence to the record, and then proceed as follows :] And the said A. B. further saith, that that the said judgment being in full force, and the damages (or debt and damages) and costs so rccovcrd as aforesaid, remaining unpaid and unsatisfied, he the said A. B. on the day of A. D. for the obtaining satisfaction thereof, sued and prosecuted out of the said court , at , aforesaid, a certain writ of execution, (called a fieri facias.) directed to the sheriff of the county of M ; by which said writ, the said sheriff was commanded of the goods and chattels of the said F. G. in his bailiwick, he should cause to be levied the damages (or debt and damages) and costs ; and that he should have the money before the justices of the court , next after, to render to the said A. B. for his dp:- - ages (or debt and damages) and costs aforesaid, ( •/* that he caused to be paid and satisfied to the said *?. hie damages feV.) and that the said sheriff have tfeeri SHERIFF, CORONER & CONSTABLE. rALSEjirruns. and there that writ, (or, and that he make due re- turn of said writ, &c.) which said writ afterwards, and before the delivery thereof to the said C. D. as herein after mentioned, was duly endorsed with a direction for the said sheriif to levy $ besides sheriff's poundage, officer's fees, and all other inci- dental expenses, and which said writ, so endorsed afterwards, and before the return thereof, to wit, on, &c. at, &c. was delivered to the said C. D. who then, and from thence, until, and at, and after the return of said writ was sheriff of the said county of M. to be executed in due form of laAV. By virtue of which said writ, the said C. D. so being sheriif of said county of M. as aforesaid, afterwards, and before the said return day of said writ, to wit, on, &c. last aforesaid, at, &c. aforesaid, and within his bailiwick, as such sheriff as aforesaid, seized and took in execution divers goods and chattels of the said F. G. of great value, to wit, of the value of the monies so [endorsed on the said writ,] (or due on the said execution,) and directed to be levied as afore- said, and then and there levied the same thereout. Yet the same C. D. so being such sheriff of said county of M. as aforesaid, not regarding his duty as such sheriff, but contriving, and wrongfully, and unjustly intending to injure, prejudice and aggrieve the said A. B. in that behalf, and to deprive him of the said monies [so endorsed on the said writ, or] eo due on said execution, and directed to be levied as aforesaid, and of the means of obtaining the same, [had not the said monies so levied as aforesaid, nor any part thereof before the justices of the court , at , aforesaid at the return of said writ, according to the exigency thereof, and of the said endorsement so made as aforesaid, [or] did not cause to be paid and satisfied to the said A. B. the monies so due on said execution, but therein wholly failed SHERIFF, CORONER & CONSTABLE. 421 and made default; and at the return of said writ, *ai« ketobn. to wit, on, &c. aforesaid falsely and deceitfully re- turned to the said justices of the said court' , (or the said court -— ,) upon the said writ of exe- cution, that the said F. G. had not any goods or chattels in his bailiwick, whereof he could cause to be levied the damages, (or debt and damages) and costs aforesaid, or any part thereof, as by the said writ and the return thereof, remaining of record in the said court , at aforesaid fully appears. By means of which said premises, the said A. B. hath been greatly injured, and deprived of the means of obtaining said monies [endorsed on the said writ] due on said execution, and directed to be levied as aforesaid, and which are still wholly unpaid as aforesaid and is likely to lose the same, to wit, ts*c. aforesaid. [The same as the Jlrst count to the obelisk, then second count. proceed as follows .-] And although there were then, and afterwards, and before the said last mentioned writ, divers goods and chatties of the said F. G. within the bailiwick of the said C. D. as such sheriff as aforesaid, "whereof the said C. D. could, and might, and ought to have levied the monies so [en- dorsed or »aid last mentioned writ] due on said last mentioned execution, and directed to be levied as aforesaid, to wit, at, &c. aforesaid, whereof the said C. D. so being sheriff as aforesaid, then had notice, Yet the said C. D. so being sheriff of the said county of M. as aforesaid , not regarding the du- ty of his office as such sheriff, but contriving and wrongfully intending to injure, prejudice, and ag- grieve the said A. B. in this behalf, and to deprive him of the monies so [endorsed] due on said last mentioned writ, for execution,J and directed to be levied as last aforesaid, aad of the means of obtain- M SHERIFF, CORONER & CONSTABLE. false return |ng the same, did not, nor would at any time before the return of said last mentioned writ, for execution,) levy the monies last aforesaid, qr any part thereof, but wholly neglected and refused so to do, and therein failed and made default, and at the return of (he last mentioned writ, for execution,) to wit, on, &c. aforesaid falsely and deceitfully returned to the said justices of the said oui-t , that the said k. F. had not any goods or chattels in his bailiwick, whereof he could cause to be levied the damages for debt and damages,) and costs last aforesaid, or any part thereof; ashy the last mentioned writ Cor exe- cution.) and the return thereof, remaining in, &c. (or here brought into court,) more fully appears, (then proceed as in ihejirst count.) For not taking replevin bond according to the statute. Not ♦akinR For that, whereas the said A. B. heretofore, to replevin ^^ 0D? £? r# j n a certain close, situate, &c. took and distrained certain large quantities of potatoes then planted and growing in the said close of great value, to wit, of the value of g as a distress for certain arrears of rent, to wit, for the sum of $ then due and owing from one L. K. to the said A. B. for the rent of the said premises with the appurtenances by virtue of a certain demise thereof, theretofore made to the said L. K. rendering rent for the same. And the said A. B. then and there detain- ed the said potatoes, so taken and distrained for the cause aforesaid, according to the laws and customs of the state of , until the said C. D. then be- ing sheriff of the said county of M. afterwards, to wit, on, &c. aforesaid, and within his bailiwick as such sheriff; that is to say, at, &c. on the complaint of the said L. K. made to him, the said C. D. so SHERIFF, CORONER & CONSTABLE. *2S then being such sheriff, as against the said A. B. in nottak.n* R E I' L h V 1 N that behalf, and under colour of his office of such sheriff as aforesaid, caused the said goods and chat- tels to be replevied and delivered to the said L. K. and then and there made deliverance of the said dis- tress to the said L. K. to wit, at, &c. aforesaid, and returned the said plaint before the justices of the court of common pleas, held next after, in said county of M. on the day of when and where the said L. K. appeared, and then and there, in the same court, without writ levied his plaint against the said A. B. for taking, and unjustly detaining of the said goods and chattels ; and afterwards, to wit* on, &c. last aforesaid, the said A. B. did duly ap- pear, in and before the said court, to answer the said L. K. in the plea of his said plaint, and such pro- ceedings were thereupon had in the said plea, that afterwards, to wit, at the next court of common pleas, held at aforesaid j in and for said county of M. on, &c. the saidL. K. did not duly prosecute his suit, and it was then and there duly considered, in and by the said last mentioned court, that the said F. K. should take nothing by his said plaint ; but that he and his said sureties to prosecute, should be in mercy, &c. and that the said A. B. should have a return of the said goods and chattels, as by the records and proceedings thereof, still remaining in said court, more fully and at large appears. And although it was the duty of the said C. D. be- fore his making deliverance of the said distress, to the said L. K. as aforesaid, in pursuance of tto statute in such ease made and provided, to tako from the said L. K. and two responsible persons as sureties, a bond in double the value of the said goods and chattels so distrained as aforesaid conditioned, for the prosecuting the suit of replevin of the said L. K. for the taking; the said goods and chattel* 421 SHERIFF, CORONER & CONSTABLE. REPLEVIN BOND. not tabitj. with effect and without delay, and for duly returning the goods and chattels so distrained, in case a re- turn should be awarded. Nevertheless the said C. D. so being such sheriff as aforesaid, not regarding his duty in that behalf, but contriving, and wrong- fully and unjustly intending to injure the said A. B. and to depive him of the benefit of his said distress, and of the means of obtaining satisfaction for the said arrears of rent so due and owing as aforesaid, did not, nor would, before his making deliverance of the said distress to the said L. K. take from the gaid L« K. and two (responsible persons as) sureties, ?/ueh a bond as aforesaid, conditioned as aforesaid, T)ut wrongfully and injuriously, wholly omitted and neglected so to do, to wit, at, isfc. aforesaid and the said A. B. in fact saith, that he hath not as yet ob- tained a return of the said goods and chattels so dis- trained as aforesaid, nor any nor either of them nor any part thereof, and the said arrears of rent have not, nor hath any part thereof as yet been paid to him the said A. B ; fnor hath he, the said L. K. hitherto answered to the said A* B. for the value of the said goods and chattels so distrained as aforesaid, nor any, nor either of them, nor any part thereof, and by reason of the premises, the said A. B. hath been, and is wholly deprived of the said goods and chattels so distrained as aforesaid ; and of the benefit of the §aid distress and of the means of satisfying the said arrears of rent, and his costs and charges by him ex- pended in and about the endeavouring to obtain satisfaction thereof, and a return of the said goods and chattels, to wit, at, &c. aforesaid. Second count. ^ n( j whereas also heretofore, to wit, on, &c. a- foresaid, the said A. B. took and distrained certain other goods and chattels, to wit, &c. of great value, to wit, &c. foe a certain sum of money, to wit, SHERIFF, CORONER & CONSTABLE. -%2B REPLEVIN BOND. &c. then due and owing to the said A. B. for rent ; not taking And the said last mentioned goods and chattels being so distrained as aforesaid, the said C. D. then be- ing sheriff of the county of M. aforesaid, afterwards, to wit, on, &c. aforesaid, last aforesaid, at, &c. a- foresaid, at the prayer of the said L. K. replevied and made deliverance of the last mentioned goods and chattels to the said L. K. ; and afterwards, to wit, at the court of common pleas, held in and for said county of M. at, &c. on, ^e. aforesaid, the said L. K. did not duly appear at the same court, and then and there prosecute with effect, his suit by him before then commenced, in the same court of common pleas, against the said A. B. for the taking of the said goods and chattels as last afore- said ' 7 and it was thereupon then and there duly con- sidered, in and by the same court, that the said A. B, should have a return of the said last mentioned goods and chattels, as by the records and proceedings there- of, still remaining in the said court, more fully appears. And the said A. B. further saith, that the said C. D. so being sheriff of, &c. at the time of causing the said last mentioned goods and chattels to be replevied and delivered to the said E. F. as aforesaid, not regarding his duty as such sheriff, nor the statute in such case made and pro- vided, but contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A. B. in that behalf, and to deprive him of the benefit of his said last mentioned distress, did not, nor would, before the replevying and delivery of the last mentioned goods and chattels so distrain- ed as last aforesaid, to the said E. F. take in the name of the said C. D. so being sheriff as afore- said, of the said E. F. and two responsible per- sons as sureties, a bond in double the value of the said last mentioned goods and chattels, so distrained vol. i. 55 *2$ SHERIFF, CORONER & CONSTABLE. >.or taiim; as ] as t aforesaid, such, value beiner ascertained by the oath of one or more credible witness or witnesses, not interested in the said last mentioned goods and chattels, or distress ; and conditioned for the prose- cuting said writ of replevin of the said E. F. with effect and without delay, and for duly returning the said last mentioned goods and chattels, in case a return thereof should be awarded before the de- liverance of the said last mentioned distress, was so caused to be made to the said E. F. as last aforesaid, as he, the said C. D. according to the form of the statute ought to have done: but the said C. D. so being sheriff of, &c. aforesaid, then and there wholly neglected so to do, nor have the said last mentioned arrears of rent, or any part thereof been paid or satisfied to the said A. B. nor hath the said E. F. hitherto answered to the said A. B. for the value of the said last mentioned goods and chattels so distrained as last aforesaid, or any* or either of them, or any part thereof — [conclusion as in the first count.] [Proceed as in the Jirst count of the preceding to the obelisk, after these word*, * 6 neglected so to do," and then as follows :] And on the contrary thereof, he, the said C. D. wrongfully and unjustly, before the replevying and delivery of the said cattle, goods and chattels as aforesaid, to wit, on, &c. at, &c. aforesaid, did take, in Hie isanie of him, the said G. D. as such sheriff as aforesaid, of the said F. G. and two other persons, to wi(, G. II. and I. K. ;t certain bond, conditioned for the prosecuting the said suit of the said F. G. with effect and without delay; and for duly returning the said cattle, goods and chattels, so distrained as aforesaid, in case re thereof should be awarded, as abend taken in SHERIFF, CORONER & CONSTABLE. **7 pursuance of the said statute, nevertheless the said A. B. in fact saith, that the said G. II. audi. K. „ taken as sureties as aforesaid, at the time of their v -*"~'^*-' becoming sureties in that behalf as aforesaid, wen not good, able, sufficient, or responsible sureties for prosecuting the said suit with effect and without de- lay, or for duly returning the said cattle, goods, and chattels, so distrained as aforesaid, in case a return thereof should be adjudged ; but the said G. II. and I. K. at the time of their becoming sureties as afor. said, were, and each of them was, and ever since hath been, and still are, wholly insufficient for that pur- pose ; nor have the said cattle* goods and chattels, or any, or either of them, or any part thereof, been as yet paid or satisfied to the said A. B. nor hath the said judgment been in any way satisfied, nor hath the the said F. G. hitherto answered to the said A. B. for the value of the said cattle, goods and chattels so distrained as aforesaid, or any or cither of them or any part thereof, by means of which said premises, he, the said A. B. hath been, and is wholly deprived of the said cattle, goods and chattels, and of the benefit of the said distress, and of the means of satisfying the said arrears of rent, and the said costs and charges by him in that behalf expended, in and about his said suit in that behalf, and in and about the endea- vouring to obtain a return of the said cattle, goods and chattels, to wit, at, &c. aforesaid. [A count may be added for not taking sureties generally^ For not assigning bail hand. [As in the count for an escape on mesne process, to niog Hie end of the statement of arrest, and then proceed'' as follows :] And the said A. B. in fact, further saith, that the said M. G. being so arrested and in custody of the said C. T). so bein.fr such sheriff as *38 SHERIFF, CORONER & CONSTABLE. ut assigning aforesaid, under, and by virtue of the said writ, for the cause aforesaid, he, the said C. D. as such sheriff, afterwards and before the return of the said last mentioned writ, to wit, on, &c. last aforesaid, at, &c. aforesaid, took bail for the appearance of the said M. G. in said court , at the re- turn of the said writ, according to the form of the statute in such case made and provided, and on that occasion, he, the said C. D. so being such sheriff as aforesaid, then and there, to wit, on, &c. afore- said, at, &c. aforesaid, took off the said M. G. and two other persons as his sureties or bail, according to the form of the statute in such case made and provided, a certain writing obligatory, commonly called a bail bond, in the penal sum of S con- ditioned for the appearance of the said M. G. at the time and place aforesaid, to answer to the said A. B. in the plea aforesaid. And the said A. B. in fact further saith, &c. [state the non appearance of the party arrested and the consequent forfeiture of the bail hond f as in the precedent of a declaration on such bond, ante; and then proceed as follows :] And although the said A. B. by J. S. his lawful attor- ney, in that behalf, did afterwards, and whilst the the said C. D. was such sheriff as aforesaid, to wit, on, &c. at, &c. aforesaid, request the said C. D. to assign the said writing obligatory to him, the said A. B. the plaintiff in the said action, according to the form of the statute in such case made and provided. And although the said A. B. Was then and there ready ar.d willing, and then and there offered to pay to the said C. D. the costs payable to him, the said C. D. in that behalf, [according to the form of the said test mentioned statute ;] yet the said C. D. so being sack sheriff as aforesaid, not regarding the duty of Ms said office as such sheriff, nor the statute in such ekse made and provided, but contriving, and wrong- SHERIFF, CORONER & CONSTABLE. 429 fully, and unjustly intending to injure the said A. * 9r m*mw» B. in this behalf, and to hinder and prevent htm v^^v^-*' from bringing any action or actions on the said writing obligatory, and to deprive him of the means of recovering the damages (or debt) aforesaid, did not, nor would, at the said time, when he was so re- quested as aforesaid, assign the said writing obliga- tory to him the said A. B. but on the contrary there- of, then and there wholly refused, and hath from thence hitherto wholly neglected and refused so to do ', and by the means of the premises last aforesaid, he, the said A. B. hath been, and is hindered and prevented from bringing any action or actions on the said writing obligatory, and hath been and is de- prived of the means of recovering the said damages, and is likely to lose the same, to wit, at, &c. [If it be doublful whether a bail bond was taken? add a count for an escape, as ante.] Jlgainst bail to the sheriff, on bail bond taken by a deputy. In a plea that to the plaintiff the defendant ren- der the sum of which he owes to the plaintiff and unjustly detains from him, whereof the plain- tiff complains, and says that on the day of he, the plaintiff, was and ever since continued to be sheriff of the said county, and on said day of G. H. was, and ever since hath continued to he a deputy of the plaintiff, as sheriff aforesaid, in and for said county, duly authorized and empowered to serve all manner of writs, within said county, and that at said — — on the day of said G. H. as deputy sheriff aforesaid, received of I, K. of , a certain writ of attachment, in favour of said I. K^ as surviving partner of the partnership of sign- ed by lawful authority, dated the day of 430 SHERIFF, CORONER & CONSTABLE. on BAir, bond. anc i directed to the sheriff of said county of — — , his deputy, &c. them requiring to attach the goods or estate of L. M. of said , to the value of dollars, and cause him to appear before the — — court, held at , on the day of the said G. H. as deputy sheriff as aforesaid, having *aid writ of attachment at said ■■ .. ■ on the day of by virtue thereof, duly and legally took and arrested the body of him, the said L. M. and then and there had, and held the body of him the said L. M. in his, the said deputy sheriff's custody, and the said L. M. being so arrested, and in custo- dy as aforesaid, the defendant, together with the said L. M. in and by a certain writing or bond obligatory, under the hand and seal of him the de- fendant, and also under the hand and seal of the said L. M. then and there well executed, dated the day of acknowledged himself, together with the said L. M. jointly and severally bound to the plaintiff as sheriff as aforesaid, in the penal sum of dollars, to be paid to the plaintiff, his heirs, executors or administrators ; to which payment well and truly to be made and done, the defendant in and by said bond, jointly and severally bound himself, his heirs, executors, and administrators, with the condition to said bond annexed, that whereas the said L. M. was attached at the suit of I. K. as surviving partner to in the sum of to ap- pear before the court on, &c. (as by the said original writ may more fully appear,) if the said L, M. did appear at said time and place, before said * court, and answer the said I. K. in his said suit ; then said bond to be void, otherwise in full force and virtue, as by tiie said bond ready in court to be shown, fully appears. Now the plaintiff further says, that the said L. M. was upon the execution of said bond as aforesaid, immediately released SHERIFF, CORONER & CONSTABLE. 431 from tlje custody of said sheriff's deputy: and said os bail bond writ and process, -was by said deputy sheriff duly returned to the clerk of said court, and was by the clerk of said court duly entered in the docket of said court, on the, &c. and the parties to said suit and process being duly called to appear in said court, said I. K. appeared, aud made answer in said suit, but said L. M. when duly called, neglected to ap- pear, and made default of appearance in said court., and did not answer to said suit : and said court then and there rendered judgment in said suit in favour of said I. K. against said L. M. that the said I. K. mould recover of the said L. M. the sum of debt, aud the sum of cost, taxed at and execution was issued by said court for the sum of debt, and for said sum of costs, beside cents for said execution ; dated the day of signed N. O. clerk, directed, &c. returnable in days from its date, as by the files and re- cords of said court, ready in court to be produced, fully appears. And the plaintiff further says, that at said on or about the day of while such execution and judgment were in full force and virtue, said I. K. delivered said execution to said G. H. as deouty sheriff aforesaid, and said G H. then and there received said execution of said I. K. to levy and collect j and during the time said ex- ecution was in full force and virtue, and according; to the directions therein contained, made diligent search at said throughout his precincts, for goods, chattels, and estate, of said L. M. and ion- the body of said L. M. whereon to levy said exeeu tion, and could find neither the body nor the goodc or estate of the said L. M. and on the day of the deputy sheriff aforesaid, endorsed his cer- tain return in writing under his hand on said execu- tion, that he had repaired to the said L, M's usual 432 SHERIFF, CORONER & CONSTABLE. «n bail bond, place of abode, in said — — and then and there made demand of goods and chattels or estate of said L. M. to satisfy said execution, and eould not find any goods, chattels or estate of said L. M. nor said L. M ? s body, whereon to levy said execution, and duly returned the said execution with his endorse- ment aforesaid thereon, into the files of the clerk of said court, as by the files of said court ready in court to be produced, fully appears ; and the plain- tiff saith that said judgment of said court, is in full force and virtue, and hath never been reversed nor in any way annulled ; and that the said execution hath never been paid nor satisfied, which files and records the plaintiff here brings into court to be shown. And the plaintiff saith, that said bond hath never been paid or satisfied, nor any part thereof, neither by the defendant nor by said L. M. though often request- ed and demanded, to the plaintiff's damage in his said eapaeity, the sum of &c. Bebt on a prison bond. on prisuii In a plea, that to the plaintiff, the defendants, under the sum of which to the plaintiff the de- fendants owe and unjustly detain : whereupon the plaintiff declares and says, that at said on the day of the defendants by that writing ob- ligatory, under their hands and seals well executed and delivered within said city, since its incorpora- tion, acknowledge themselves jointly and severally bound to the plaintiff, in the sum of to the pay- ment whereof they bound themselves, their heirs, executors, administrators, and each of them, by uaid bond ; to which said bond was annexed the fol- lowing condition, viz. (write the condition verbatim,) as by said bond, ready in court to be produced, fully appears : and said gaol and the whole limits thereof, SHERIFF, CORONER & CONSTABLE. *3* are, and have been, since the execution of said bond, •"JJJJ^ 1 and at the time of executing said bond, were within ^-v^ the limits of said city : and the plaintiff on the said day of was and ever since hath been sheriff of said county : and on the day of after the execution of said bond, the said A. in said city, did escape and depart from the limits of said gaol, and went at large in said city : and the said execu- tion has never been paid, and the plaintiff has be- come liable to pay the same, and hath not been saved harmless as aforesaid — to the damage of the plaintiff, the sum of . For not assigning bail bond. In a plea of the case, whereupon the plaintiff de- Neglect to * i » •■ , « ,j». assign bail clares and says, that on the day ot in tnc bond. year he prayed out a writ of attachment a* gainst J. H. of said , directed to the sheriff of the county of , his deputy, or either constable of said , commanding them to attach the goods or estate of the said J. H. to the value of and for want thereof, to attach his body, and him cause to appear before the — — court, to be held at said , on the day of A. D. to answer to the plaintiff in an action on a certain note of hand, executed by the said J. H. to the plaintiff, and dated A. D. and given for the sum of dollars and payable on demand ; in which said action the plaintiff demanded of said J. H. the sum of in damages and cost. Said writ was dated. &c. and signed by D. F. justice of the peace: which said writ, he the plaintiff, at aforesaid, on the day of A. D. delivered to the defend- ant to serve and return j and the defendant then was VOL. I. 56 43£ SHERIFF, CORONER & CONSTABLE. jtjclectto constable of said , and then and there received ASSIGN BAIL . , . - . bonis. said writ to serve and return as aforesaid. And on said day of by virtue of said writ, he, the defendant, took the body of said H. and took bail for his appearance at the said court, to which said writ was returnable : and afterwards the defendant duly returned said writ to said court, to which it was made returnable : and which by legal removes t came to the adjourned court, hoi den at said , on the day of A. D. when and where the plaintiff recovered judgment against said J. H. for the sum of . damages, and for the sum of costs, (including execution,) by default of ap- pearance of the said H. to said action : and the plaintiff says, that the said H. never did appear in court to answer to said action, but did entirely neg- lect to do the same, all which, by the files and re- cords of said adjourned court, ready in court to be shown, fully appears. Now the plaintiff in fact saith, that on the day of A. D. he took out execution on said judgment, against said H. dated the day of A. D. signed by T. W. clerk of said court, returnable in sixty days, and directed to county sheriff, or his deputy, com- manding him to execute the same, according to the direction thereof, and the same at aforesaid, on or about the said day of he, the plain- tiff, delivered to A. A. of said — — , who then Avas and ever since has been a deputy sheriff for said county, under J. F. esq. of said , sheriff of said county of , to execute, according to the directions therein given : and said A. A. then and there received the same to execute as aforesaid: and said A. A. on. the day of last past, made the following indorsement thereon,, to wit : SHERIFF, CORONER & CONSTABLE. June Uh, A. U. 1812. * c " By virtue of this execution, I repaired to the usual place of abode of the within named debtor, and made ^ demand of money, goods, or chattels to satisfy the same, with my fees ; and made diligent search, but none were shown* unto me, nor could find cither body or estate whereon to levy this execution. Test. A. A. Sheriff's Deputy. And afterwards said A. returned said execution with said endorsement thereon, to the said clerk's office in said N. If. as hy said execution ready in court to be shown fully appears : Now the plaintiff further says, that on the day of last past, at aforesaid, he demanded of the defendant the bail bond for the appearance of the said H. at said court to which said writ was made returnable; but the defendant did then and there utterly neglect and refuse to deliver him the same: and the plaintiff further says, that said judgment and execution never have in any wise been paid nor satisfied, but the same remain in full force, whereby the plaintiff is damnified the sum of &c. Upon a receipt given to an officer levying a state warrant or execution, mutatis mutandis. Then and there to answer unto P. W. in a plea ou receipt to of the case, whereupon the plaintiff declares and offi,er - says, that on the day of J. II. esquire, treasurer of the state of , in pursuance of the law in such case provided of said state, issued his execution or warrant, against the inhabitants of the town of in said state, for the amount of the arrears of a tax of three pence on the pound, upon the polls and rateable estate of the said inhabitants, granted and laid by the general assembly of said i3(> SHERIFF, CORONER & CONSTABLE. on receipt state, and payable on A. D. being the TO OFFICER. * ... , .j • » sum of then remaining due and unpaid to said treasurer ; together with officer's fees on a for- mer execution against the collector of said tax, on said inhabitants, and as officer's fees on an execu- tion against the select men of said and for said last mentioned execution, and for said execu- tion against said inhabitants, which execution against the said inhabitants was dated said day of A. D. was signed by said J. H. as treasurer, return- able in sixty days from said date, and was directed to the sheriff of said county of , or his deputy; them requiring to levy and collect said sums, amount- ing in the whole to of the goods, chattels, and estates of the inhabitants of said . And on the day of A. D. said execution being in full force and virtue, and altogether unsatisfied, was delivered to the plaintiff as deputy sheriff of said county to levy and collect, and return A. D. and the plaintiff, as deputy sheriff aforesaid, on the day of at aforesaid, levied said execution on ten horses and twenty oxen, the property of said inhabitants, and of the value of and having levied said execution , as aforesaid, the plaintiff then and there by virtue thereof, took said horses and oxen into his custody : and af- terwards at said , on the said day of at the speeial instance and request of the defendants, he, the plaintiff, delivered said horses and oxen to the defendants, who then and there received the same of the plaintiff to keep safe- ly, and redeliver to the plaintiff at the sign post in the society of , in said , at the end of twenty days from the time of said levy as afore- said, and in consideration thereof, at said , on said day of the defendants did assume ipon themselves* and to the plaintiff faithfully SHERIFF, CORONER & CONSTABLE. 43: promise, to deliver to him said horses and oxen 0H **<:*<" * „ TOOEFlCBf. at said sign post — — , at the expiration oi twen- v>^v-^> ty days from said day of A; D. to wit, on the day of or to pay to the plaintiff all damages that might accrue to him in consequence of said horses and oxen not being delivered at said time and place, as by a certain written receipt, under the hands of the de- fendants, dated the day of A. D. rea- dy in court to be shown fully appears. ' And the plaintiff further says, that on the day of A. D. he was, and hath ever since been deputy sheriff, in and for said county -, and was fully autho- rized to levy said execution as aforesaid, but the de- fendants, their said promise not regarding, never delivered said horses nor oxen to the plaintiff at said sign post, though the plaintiff, at said sign post, at the expiration of twenty days from said day of was ready to receive, and did then and there demand said horses and oxen of the defendants, and they did then and there refuse to deliver, and have ever since neglected to deliver said horses and oxen to the plaintiff, though he hath ever been ready to receive the same. And said exe- cution so levied on said horses and oxen hath never been paid nor satisfied; and the plaintiff hath be- come liable therefor, and hath been compelled to pay the same : all which is to the plaintiff's damage, the sum of and therefor, and for costs, the plaintiff brings this suit, &c. Against sheriff for default of his deputy, in not levy- ing nor returning an execution. Declares and says, that he recovered judgment a- J; f ^J t ri o ff f ^ r e gainst A. B. of before for the sum of puty. damages and costs of suit, and had execution grant- *38 SHERIFF, CORONER & CONSTABLE. v, sheriff roRed thereon, in due form of law; for the aforesaid default o gums an( j cents for said execution, dated the DEPUTY. 7 v-^-v-»-> day of and signed by — r— clerk, and re- turnable in sixty days after the date of said execu- tion, directed to the sheriff of , &c. and the plaintiff at - , caused said execution to be put into the hands of , who then and for more than six- ty days after, was one of the defendant's deputies, duly qualified to act as a deputy sheriff, (and the defendant then was and ever since hath been sheriff of the county of — -,j and the said deputy received the said execution to serve, levy and return accord- ing to the direction therein given, as by said deputy's receipt, &c. Now the plaintiff in fact says, that neither the plaintiff nor his deputy, nor either of them, have ever levied said execution, nor made any return thereof, but said judgment and execution re- main altogether unpaid, unsatisfied, and unreversed, to the damage of the plaintiff, the sum of &c. Against a constable, for not levying nor returning two executions. v. Constable Then and there to answer unto A. N. of , for not levy- ingexecution. within said county of — — , in an action or plea brought upon a certain statute law of the state, en- titled, " An act for appointing sheriffs, and for em- powering and regulating them in the execution of their office.*" Whereupon the plaintiff complains and says, that at aforesaid, on or about the day of the defendant then being one of the con- stables of said town of , received of the plaintiff to serve, (levy) and return, two certain executions in due form of law, directed to either constable of said . , both being in favour of the plaintiff, each on * This statute is alike applicable to constables as (o sheriff* SHERIFF, CORONER & CONSTABLE. 439 a judgment of court, held on the day of " c °^- '«* <* O * " NOT LEVYING A. D. signed by J. W. clerk of said E * court, and made returnable according to law ; the ^~ Y ^- J one being against D. P. of said , for, &c. and costs : the other of said executions being against S. S. of said for, &c. which exe- cutions the defendant, &c. as constable aforesaid, received of the plaintiff to levy and return accord- ing to law. Yet nevertheless the plaintiff saith, that the defendant never levied nor returned said execu- tions, nor either of them, but has wholly neglected to do it, against the form and effect of the statute law of this state, in such case made and provided, and to the plaintiff 's damage the sum of &c. Against sheriff for an escape ly his deputy, before commitment, of one taken on execution. For that whereas the plaintiff, by the consider- v . Sheriff for ationof our justices of, &c. holden at , on commitment* within, and for our county of , recovered judg- ment against one C. of , for the sum of g damages, and g costs by the same suit, as by the record thereof in the same court remaining, appears : and afterwards, on the plaintiff, sued out a writ of execution thereupon in due form of law directed to the sheriff of our said county of or his deputy, commanding them among other things, that of the goods, chattels or lands of the said C within their precincts, to cause to be paid and Satis- fied un»o the plaintiff, (at the value thereof in money.) the aforesaid sums, with more for our said writ of execution, and for want of goods, chattels, or lands of said C. to be by him shewn unto them, the said sheriff or deputy, or found within tluii precincts, to the acceptance of the plaintiff, to satisiY the sums aforesaid, to take the body of the said • 440 SHERIFF, CORONER k CONSTABLE. 1sc H bef.ob°i and him commit t0 our S aoI » in » in our said ex. county of , and to detain him in our said gaol ^^^ until he should pay the full sums ahove mentioned, with the said sheriff's or deputy's fees, or that he should he discharged by the plaintiff, the creditor, or otherwise by order of law. * And afterwards, on at , the plaintiff delivered the said writ of execution to one D. then and ever since one of the deputies of said A- in our county of , to be duly executed by him the said D. And thereafterwards, on by virtue of our said writ of execution, and . for want of goods, chattels or land of the said C. by him shewn, or to be found as aforesaid, the said D. took tbe body of the said C. and him had and detained in his custody for the space of one hour : and theu the said D. in no wise regarding the duty of his said office, freely and voluntarily suffered him, the said C. to escape out of his custody, and to go at large whither he the said C. would, without the license, and against the will of the plaintiff, the damages, costs, and charges aforesaid, being then unpaid and unsatisfied to the plaintiff; whereby an action hath accrued to the plaintiff, to demand and have the aforesaid sums, amounting in the whole to of the said A. (defendant.) Yet the said A. &c. Ji gainst sheriff, for an escape after commitment on execution, ,, (JLs before to *.") And thereafterwards on Vor escape on \ J ' execution by virtue of said execution, and for want of goods, chattels or lands of the said C. by him shewn or to be found as aforesaid, the said D. took the body of the said C. and committed him to our said gaol, in afoi-esaid. to the custody of the said A. (dft.) then and ever since keeper of said gaol ; to be by him there detained, till the said C. should pay the SHERIFF, CORONER & CONSTABLE. 4ii full sums above mentioned, or be otherwise (lis- «** kkum OH EX. charged as aforesaid. Yet the said A. the duty of his office, as keeper of the said gaol, as aforesaid, not regarding, did not detain the said C. in our said goal, but by his negligence, suffered the said C. to escape from our said goal, and go at large where he would, without the consent and against the will of the plaintiff $ he being then and still unsatisfied of his damage and costs aforesaid : whereby an action hath arisen to the plaintiff, to demand and have the aforesaid sums, amounting in the whole to of the said A. yet though often requested, he hath not paid the same, but refuses and neglects so to do. Against sheriff, for escape on execution. For that the plaintiff by the consideration of our For escape on justices of our (s. j. court, or court of c. p. as the eXtcu,10n - case may be,) held at , on , in and for the county of , recovered judgment against one F. G. of , for the sum of dollars debt or damage, and costs of suit, as by the record there- of remaining in the same court appears ; and on sued out our writ of execution thereon, in due form of law, directed to the sheriff of our said county of , or his deputy, and returnable into the same court, (or) into the clerk's office of our said court,) on and on at delivered the same writ to one G. H. then and ever since, a deputy sheriff under the said D. (dft.) who was then and ever since hath been sheriff as aforesaid, and keeper of our gaol in the county aforesaid in due form of law to be executed : by force whereof the said G. afterwards, and before the return there- of, to wit, on at , for want of goods, &c. of the said F. G. &c. took his body and committed him vol. i. 37 *j« SHERIFF, CORONER k CONSTABLE, ?ok esc ave to our gaol, in and to the custody of the said ^^j D. then and yet keeper, &c. as aforesaid : and by force thereof, the said F. G. was in the custody of the said D. sheriff, as keeper as aforesaid, until when the said D. suffered the said F. G. to escape out of his custody, and go at large where he would, without the consent of the said plaintiff, who then was, and still is unsatisfied for his debt and costs aforesaid, and every part thereof; where- by an action hath arisen to the said plaintiff, to de- mand and have of the said D. the aforesaid debt and costs, amounting in the whole to dollars r yet, &c. For neglect of deputy, in nat serving an execution. Neglect of Yor that whereas the plaintiff, by the considera- tion of the justices, &c. recovered judgment against one D. of , for g debt and S cost, ashy record thereof in the same court remaining appears ; and on took out of the clerk's office of the same court, our writ of execution on that judgment, di- rected to the sheriff, &e. commanding, &c. (in com- mon form,) and on at , the plaintiff deli- vered the same writ of execution to one C. then be- ing a deputy sheriff of the said D. (dft.) who then was, and ever since has continued sheriff of our county aforesaid, in due form of law to be execut- ed. Yet neither the said D. nor said C. nor any of the deputies of the said D. ever executed the writ aforesaid, or caused the aforesaid sum or sums, or any part of them to be paid to the plaintiff, who still remains unsatisfied for the same ; or made any re- turn of our writ aforesaid with their doings thereon according to the command thereof, but neglected so to do, to the damage, &c. SHERIFF, CORONER & CONSTABLE. i*3 , r " ' - _ , - DEP. PAr.SE For false return on execution, by Ins deputy. keiur*. Fop that whereas the plaintiff, by the considera- tion of our justices, &c. recovered judgment against one J. S. of for the sum of dollars damages,. and dollars costs of suit, as by the record, &c and on sued out a writ of execution thereon, in due form of law, directed to the sheriff, &c. and re- turnable, &c. and on the said plaintiff de- livered our said writ of execution to one E. F* who then was, and until after the day when our said writ was returnable, continued to be one of the said D's (dft.) deputy sheriff's of our said county ( of . to be by the said E. F. duly executed and returned, according to our command therein given. Yet neither did the said E. F. nor the said D. nor any of the deputies of the said D. execute our said writ, nor make any lawful return thereof to our said court, where the same was returnable according to our command therein given, but the same E. F. kept the same writ until and then returned, it into the clerk's office of our said court with this false return endorsed thereon : " E. ss. [date] I return this execution in no part satisfied by virtue of the creditor's order. E. F. Deputy Sheriff." Now the plaintiff in fact saith, that he never gave any such order, and that he has not been satisfied for his debt aforesaid, but the same still remains due and unpaid : and by means of the said E. F's doings aforesaid, the said plaintiff has lost his debt and costs aforesaid, to the damage, &e. For neglect of deputy, in not arresting on execution a debtor in his presence. For that whereas the plaintiff by the consideration D e P- not ar. 1 * . resting debtor of our Justices, &c. recovered judgment against one„ n execution. M SHERIFF, CORONER & CONSTABLE. dep. not ar- C. of , for the sum of g damages, and ©ehtoV ox ex. S costs, of the same suit, as by record thereof, in the same court remaining appears; and after- wards, to wit, on the plaintiff sued out our writ of execution, thereupon in due form of law directed to the sheriff of our said county of , or his deputy, commanding them among other things, that of the goods, chattels, or lands of the said C. within their precinct, to cause to be paid and satis- fied unto the plaintiff at the value thereof in money, the aforesaid sums, with for our said writ of execution, and for want of goods, chattels or lands of the said C. to be by him shown to the said sheriff or iiis deputy, or found within their precinct, to the ac- ceptance of the plaintiff to satisy the sums aforesaid to take the body of the said C. and him commit unto our gaol in , until he should pay the full sums above mentioned, with the said sheriff's or his deputy's fees, and that he should be discharged by the plaintiff, the creditor, or otherwise by order of Saw ; and to make return of our said writ of exe- cution, with their doings thereon, into the clerk's office of our said court of — — , on . And after- wards, to wit, on the same day at , the plain- tiff delivered our said writ of execution, to one D. of , then and ever since, one of said sheriff's deputies for our said county of , to be duly exe- cuted ; and requested the said D. to serve, execute, and return the same according to the precept there- of: and the said D. then and there received the same of the plaintiff, to be served, executed, and return- ed according to the precept thereof. And afterwards, before the return of said writ, to wit, on at the said C. was in the presence of the said D: yet the said D. in no wise regarding the duty of his said office, but contriving, and fraudulently in- *■ nding to deprive the plaintiff of his proper remedy SHERIFF, CORONER & CONSTABLE. 445 *o obtain satisfaction and payment of the aforesaid CE(> kot *i Rr vn vc sums, amounting to , dollars, did then and there, CEB , CN u . wilfully refuse and neglect to take the body of the ^■^<^ v ^ said C. according to the command of our said v/rit of execution, though the said D. might then and there easily have taken and arrested the said C : nor hath the said D. at any time since taken or arrested the said G. upon our writ of execution, or in any wise satisfied the plaintiff for the sums aforesaid : and the said C. hath ever since the day of return of the said writ absconded and escaped into places alto- gether unknown, so that the plaintiff hath by means of the said D's wilful neglect of his duty aforesaid, totally lost all benefit of the payment and exccu~ ' tion aforesaid, £s*c. Same, for not paying money recieved on execution, and not returning an alias execution. For that whereas the plaintiff, by the considera- Not paying- tion of our justices, &c. recovered judgment against T^H**! one C of , for the sum of dollars damages, and dollars costs, of the same suit, as by the re- cord there of in the same court remaining appears : and afterwards, to wit, on the plaintiff sued out our writ of execution thereupon, in due form of law directed to the sheriff of our said county of or his deputy, commanding them among other things, that of the goods, chattels or lands of the said C. within their precincts, to cause to be paid and satisfi- ed unto the plaintiff, at the value thereof in money, the aforesaid sums with for our said writ of ex- ecution : and for want of goods, chattels or lands of the said C. to be by bins shewn unto the said sheriff or his deputy, or found within their precinct, to the acceptance of the plaintiff, to satisfy the sums afore- said.'to take the bodv of the said C.-aiul him com- 4*5 SHERIFF, CORONER k CONSTABLE. MONEV RE- CEIVED- K ?J, P t T l NG m ** unto our gaol in , until he should pay the full sums above mentioned, with the said sheriff's or his deputy's fees, and that he should be discharged by the plaintiff, - (the creditor,) or otherwise. by order of law ; and to make return of our said writ of exe- cution with their doings thereon, unto the clerk's office, of our said court of , on And af- terwards, to wit, on the same day, at , the plaintiff delivered our said writ of execution, to one D. of , then and ever since one of said sheriff's deputies for our said county of——, to be duly exe- cuted : and requested the said D. to serve, execute, and return the same, according to the precept there- of: and the said D. then and there received the same of the said plaintiff, to be served, executed, and returned, according to the precept thereof. And afterwards, before the return of the said writ, to wit, on at , the said D. received of the said C. dollars in part satisfaction of saidexecu- tionj and afterwards, to wit, on returned the same execution into our said court, to which the same was returnable as aforesaid, satisfied in part, to wit,f or the sum of dollars. And afterwards, to wit, on at , the plaintiff took out and de- livered to the said D. an alias execution, upon said judgment, for the remainder then due thereon, in the same form with the first, and directed to the same officers, and containing the like commands with the first, as to levying the same, and returnable into said court on • at , by virtue of which, the said D. afterwards, to wit, on at , received of the said C. the further sum of in part of said alias execution, and well might and ouafht to have served the said execution, on the said C. for the remainder according to the precept of said writ : yet the said D. then and there neglected 20 to do, nor did he return the last mentioned exe- SHERIFF, CORONER & CONSTABLE. Wf cution according to the precept thereof, nor has lie W7 '*▼«««> , ., MONET «t- ever paid said sums by him received on said cxeeu- cstra*. tions to said plaintiff, though requested at , on v -* nr ^ as by law and the duty of his office, he might, and ought to have done, but hath neglected and re- fused, and still neglects and refuses to pay them. And so the said plaintiff hath wholly lost the benefit of said judgment and executions, for recovering the sums aforesaid : to the damage, &c. Same, for not executing mesne process, and for false return. For that whereas at , on one R. W. by^ otexecu - v ting mesne his note under his hand for value received, promised process, the plaintiff to pay him or his order dollars on de- mand, with lawful interest, till paid : and afterwards, on the contents of the said note being unpaid, though the said R. W. was before duly requested, tlu? plaintiff, for the recovery of his due damages for the breach of that promise, purchased out of the office of the clerk of (our court of c. p.) for said county, our writ of attachment in due form, as by law is re- quired, directed to the sheriff, &c. commanding them, among other things to attach the goods and estate of the said R. to the value, &c. (in common form) to answer to the said S. upon his declaration there- in at large set forth ; and to have the same writ with their doings thereon, at the same court as by the record of the same suit, in the same court regaining more fully appears. And afterwards, to w it, on at , the said S. delivered the same writ to one J. K. then and ever since a deputy sheriff for the same county, duly authorized ami qualified un- der the said D. (dft.) who then was, and ever since hath been sheriff of our said county, and then was, and still is by law answerable for the neglect of the 448 SHERIFF, CORONER & CONSTABLE. notexecu- said J. K. his deputy aforesaid, to be by him th^ TINC MESNE . * phocess. said J. K. duly executed, served and returned, ac- *""'" vV *^ cording to the directions therein given: and after- wards, to wit, on the same day, at , the said J. K. being possessed of the same writ, was present and in company with the said R. and could have at- tached his body if he would ; yet the said J. K. re- gardless and negligent of his duty in this particular, did then and there utterly refuse and neglect to at- tach the body of the said R. as he might have done ; neither did the said J. K. at any time, by force of the same writ, attach the goods of the same R. to the value of dollars, as he was therein com- manded, hut thercafterwards, on the same day, at- tached a chair of no value, as the estate of the said R. and at the same court (of c. p.) returned the same writ, and thereon, among other things, false- ly returned that he could not take the body of the defendant, (meaning the said R.) and that he had attached a chair as the only estate of the said R. which he could find within his precincts, by reason of which neglect and misdoing of the said J. K. the the said C. hath altogether lost the aforesaid sum of dollars, together with the lawful interest there- on, and such other due damages as he might have recovered for the payment, and his lawful costs of that suit, &c. Against sheriff, for not returning a writ of mesne process. Nut return- For that the plaintiff, on purchased our writ p"o«£ ne of attachment out of the office of the clerk of our (court of c. p.) for our county of * -■ ■ , in form by law prescribed for the recovery of with in- terest due to the plaintiff from one J. B. then an in- habitant of , by his the said B's note of band. SHERIFF, CORONER & CONSTABLE. 440 INC MBSSE ■ROCEM* dated as also, for the recovery of a further *°t retu*n sum of due to the plaintiff from the said B. according to the said B's negotiable note, endorsed to the plaintiff; and the plaintiff declared according- ly, in his said writ of attachment, against the said B. in a plea of the case, setting forth the sums due from the said B. on the noteg aforesaid, and the plaintiff's damage by the said B's neglecting to pay the said sums to the plaintiff. And the said writ was directed to the sheriff of our said county of , or his deputy, commanding them, &c. (in common form) and afterwards, viz. on at , the plain- tiff delivered the said writ to the said D. (dft.) then and to this day, sheriff of our said county of , to be executed and returned into the then next court of c. p. which was hold at , in and for the said county of ■ on and the said D. then and. there promised to serve and return the same writ accordingly. Yet the said D. neglecting in the pre- mises, never made any return of the said writ, nor of his doings thereon, to the said court, when and where it was returnable as aforesaid, nor did any of his deputies make any return thereof, but secreted the same, whereby the plaintiff hath lost the benefit thereof, and of the said notes which remain yet unpaid. Against sheriff, for an escape from gaol lefore exe- cution levied. For that whereas one A. was indebted to thc Esiape fro ~ plaintiff in the sum of for goods, Wc. and the- £***• plaintiff, in order more speedily to recover his just debt aforesaid, on at purchased a writ of attachment in due form of law out of the clerk's of- fice of our court of c. p. for returnable a TOL. I. 58 ■%50 SHERIFF, CORONER & CONSTABLE. "AOL BEFOFE ax. LEVIED. xscafe »roh Qur court of e. p, then next to be holden ami to the sheriff of said county directed : and then and there delivered the same to the said D. (dft.) who then was, and still is sheriff of said county, for him to serve and return the same ', by virtue of which, the said D. was commanded to attach, &c. (as in the writ.) And afterwards, on at , in pursuance of the same writ, the said D. sheriff as aforesaid, for want of goods or estate of the said A. took the body of the said A. and committed him to our gaol, in , of which gaol the said D, then was, and ever since hath been keeper, and made true return of his said doings according to his said prece'pt unto our court of c. p. holden, &c. at which same court to which the same was returnable as a- fcresaid, the plaintiff entered his action as aforesaid: and thereupon, by the consideration of our justices of the same court, recovered against the said A. the sum of dollars damages, with costs of suit taxed, at : and afterwards, on took out of the same office, at our writ of execution on the same judgment, in form by law prescribed, and di- rected to the sheriff, &c. and then at , being within thirty days * after the judgment aforesaid was recovered, delivered the same to the said D« sheriff as aforesaid, to be by him levied and return- ed : by which said precept, the said D. was com- manded, (as in execution) yet the said »P. at , suffered the said A. to escape out of the gaol afore- said, and go at large, and returned the said execution entirely unsatisfied, without doing any thing in pur- suance thereof : by means whereof, neither the said /;; MostachmeHs and Xew- Hampshire , or within five days after final . letnent, if in Conitrctkul ; or wirtiiri fifteen d»ys after the rendering fi- " at : and the plaintiff by the said A's misconduct and a , D(aiftR - and laches as aforesaid, has utterly lost his debt and V _^J^ > , costs aforesaid. Against a deputy sheriff, being a party to a zvrit for serving the same, though directed to a coroner. For that, on at 4 — , one J. M. for value De [\! erT ' I, * 1 9 i writ directed received of the plaintiff, endorsed over to bim a t o coroner promissory note, under the hand of S. B. and the said D. (defendant,) bearing date by them given to the said J. M. for the payment of to the same J. M. or his order, in months from the date thereof, with lawful interest thereon, afterwards, if not then paid, and by the same endorsement ap- pointed the contents of said note tben unpaid, to be paid to the plaintiff, who afterwards, viz. on at , the said months, being expired, gave the said S. B. and the said D. due notice thereof, and then and there requested of them to pay to him - nr*n late sheriff of the county of , of the one part SHIR irr. W and A. B. esq. now sheriff of the said county on the other part, Witnesseth, that the said R. S. by virtue of a writ of discharge of his late office, to him di- rected, hath delivered and set over to the said A. B. these writs following: that is to say, a capias against W. F. returnable on the day of before the justices of the court, at the suit of S. B. to- gether with the bodies of J. N. at the suit of G. H. for a debt of dollars, and J. H. at the suit of J. D. for a debt of dollars, as also at the suit of N. W. for a debt of dollars, &c. In witness whereof, &c. JV*. B. Ml the writs which are set otcr in the in- denture behveen the sheriffs, if they have been execut- ed by the old sheriff, must be returned by him, or in his name, and endorsed or subscribed by the nesc sheriff, thus : vol. i. 59 453 SHERIFF, CORONER & CONSTABLE. *d between Thig ^ t as endorse(l was delivered to me by R. S. sHERiFr. esq late sheriff, my immediate predecessor, on his going out of office. A. B. Sheriff. Indenture between the sheriff, and his under sheriff. Between This indenture made, Cc. between R. O. esq. under sheriff sheriff of the county of , of the one part, and R. II. of in said county, of the other part, Witnesseth, that whereas the said R. O. hath, up- on special confidence and trust which he bears in and towards the said R. H. promised and granted to the same R. II. the use of the exercising of the office of his under-sheriff, of the county aforesaid, with all fees, profits, commodities, advantages, casualties, allowances, and other emoluments, certain and un- certain whatsoever, to the office of under sheriffwick belonging, or in any wise appertaining, that any un- der sheriff of the said county hath heretofore law- fully and justly claimed or had, to have and enjoy, during and for all such time as the said R. O. shall remain and continue sheriff of said county, this ap- pointment or election not discharged. In considera- tion whereof, the said R. O. covenants, grants, agrees, and faithfully promises, for him, his heirs, executors and administrators, that he the said R. H. his heirs, executors and administrators, shall and will discharge, or otherwise sufficiently save and keep harmless, as well the said R. O. his heirs, executors, and administrators, as also his and their, and every of their goods, chattels, lands, tenements and hereditaments, of and from all, and all manner of troubles, vexations, suits, actions, informations, complaints, contempts, fines, forfeitures, amerce- ments, penalties, pains, sum and sums of money, payable or collectable, to or for the use of the state SHERIFF, CORONER k CONSTABLE. ±5* SI*, tr MM . A" B»B. {or commonwealth) of , or any person ov persons •**< ' whatsoever, for any matter or thing to be done in or about the said office. And of and from all, and all manner of losses, hindrances and damages, thai shall or may be lawfully moved, stirred, procured, commenced, prosecuted, happen or fall, or lawfully asked, demanded, or levied upon the said R. O. his heirs, executors or administrators, or of or upon hi* or their goods, chattels, lands, tenements or licredi taments, for or by reason of the said office of sheriff, either by not returning, or unlawfully returning, *low returning, or misreturning of any precepts, writs, warrants or process, to the sheriff directed, or to be directed, or for or by cause or means of any excessive, or unlawful extortion, or faking of any money, or other gain, or commodity, for the serving or not serving any such writs, precepts, warrants or process ; or for or by reason of any mis- demeanor, misusing, or misgovernment, negligence, lack of skill, or ignorance that shall be in the said R. H. in or about the doing or exercising, or execut- ing of the said office of under sheriff. And the said R. H. for himself, his heirs, executors and adminis- trators, by these presents further covenants and grants, to and with the said R. O. his heirs, executors and administrators, in like manner to discharge, or to save harmless and indemnified, as well the said R. O. his executors and administrators, as also all their goods, chattels, lands, tenements and heredi- taments, of and from all manner of escapes, both wilful and negligent, of traitors, felons, and all other prisoners committed, or to be committed, to his or their safe keeping or charge, from breach of prison, and of and from all fines, forfeitures, amen i ments, sums of money and penalties, that he or they, or any of them, shall or may incur, bear, pay or sustain for any escape or breach of prison, duri 460 SHERIFF, CORONER & CONSTABLE. ind between a ll the time of his continuance in the said office of 5HF .' sheriff of his appointment. And moreover, the said v-#rv ^ w * R. H. shall give attendance convenient and requi- site, upon all courts, judges and justices, and other officers within said county, upon whom the said R. O. or the said R. H. in respect to the said office of sheriffwick ought, by the laws of the. state, (or commonwealth) of to attend. And furthermore shall, within the space of after the discharge of the said R. O. from his said office, justly and truly make a perfect account of all the sums of mo- ney, receipts and other things wherewith the said R. O. shall or may be charged as sheriff of said county : and the same account deliver into the (here describe the court, &c. to which the account is to be rendered') and shall within the space of deliver unto the said R. O. his heirs, &c. a sufficient acquit- tance, or quietus est ; and it is further agreed upon by the said parties to these presents, that all bailiffs, deputies and other officers under the sheriff, shall enter into sufficient bonds by obligation that they, and every of them, shall diligently and faithfully execute their respective offices during the time aforc- saidv And if any shall refuse to enter into such bond, or shall misdemean himself in his or their said office, the said R. H. may in his discre- tion place another, mete for such office, in the room of him who shall refuse to enter into bond, or shall misdemean himself as aforesaid. In witness whereof, &c. Condition of a bond that the under sheriff shall keep his covenants in the foregoing indenture. r. .dition'of The eon di t i ori &c. That if the above bounden R. unan'shenn s bun!. i?. do well and truly hold, perform, observe, fulfil and keep all and singular the covenants, grants, pro- SHE1UFF, CORONER & CONSTABLE miscs, articles, payments, provisos and arreemi mm i which, on the part and belief of the N)M R. II. hi ' heirs, executors, &c. or any of them are (<» be * * holden, performed, observed, fulfilled or kept) eta tained, written, declared or specified in one pair ef indentures, bearing date, &e. made between the said R. H. of the one part, and the ■here named R. <). ef the other part, according to the tenor, purport, true intent and meaning of said indentures. Thai then the above obligation to be null and void, otbenu«< . to be in full force and virtue in the law, fee. Appointment of a general deputy. To all to whom these presents may eome, [L.S.] Greeting: Know ye, that I, A. R. of M. in MM J county of C. esquire, sheriff of the county ef C. aforesaid, reposing special confidence and trust i:i E. D. of F. in said county, gentleman, at bis gpe< iustance and request, have constituted and appointed, and by these presents do constitute and appoint him, the said E. I>. a deputy, under me the said she. And I do hereby grant unto him, the said E. I), full power and authority, as my deputy, throughout the said county of C. to use and exercise the n!:i< IB ef deputy sheriff, according to the laws of ; arte, (commonwealth.) relative to, and regulating the office of deputy sheriff aforesaid, until he shall be ; discharged thereupon. In witness whereof, I have hereunto affixed iti seal, and subscribed my name and office, this day of in the year of our Lord one thousand; &e. A. R. SI 462 SHERIFF, CORONER & CONSTABLE. APPOINTMENT OP DEPUTY. Appointment of a special Deputy. I, A. B. sheriff of county of C. to whom the within writ is directed, at the special instance, request and risk of D. E. the within named plaintiff, (or creditor,) do constitute and appoint F. G. of H. in said county a special deputy under me, and in my name, to exe- cute the within writ, according to the requirements thereof. And do hereby grant unto him, the said F. G. full power and authority for the execution of said writ as aforesaid, according to law. Witness my hand this day of A. D. A.B. Sheriff. Deputation to take an inquisition. Dutchess, "l A. B. esquire, sheriff of said county "l A. Is. e JtoC. D. g to wit, j to C. D. gentleman, Greeting: By virtue of a writ of inquiry, issued out of the — — — court, at , to me directed and hereunto annexed, I do hereby authorize and empower you to summon a jury and take an inquisition, in my name, in a cause wherein E. F. is plaintiff, and G. H. is defendant ; and render me an account of what you shall do therein, so that I may certify the same to the justices of said court, at , on the day of next. Hereof fail not. Given from under the seal of my office, the day of I'his deputation to be endorsed-^ and returned with the inqui- 1 By the same Sheriff. itition. 3 SHERIFF, CORONER & CONSTABLE. *os i Bond of indemnity from deputy sheriff to his principal. Know all men by these presents, that we J. S. B0SD F,0M of in the county of (addition) and J. B. of in said county, (addition) and J. N. of in said county (addition) are holdcn, and firmly bound and obliged unto J. W. esquire, of in said county, sheriff of the county of aforesaid, in the sum of dollars, to be paid to him the said J. W. or his certain attorney, executors, ad- ministrators or assigns; to which payment well and truly to be made, we bind ourselves, and each of us, by himself, and our and each of our heirs, executors and administrators, firmly by these presents. Scaled with our seal*, this day of in the year of our Lord . The condition of this obligation is such, that whereas the above named J. S. is, at his special instance and request, appointed by him the said J. W. a deputy sheriff, under him the said J. W. Avithin and for the said county of . Now if the said J. S. do and shall faithfully serve and execute, within said county of all writs, warrants, pre- cepts and processes to him directed and committed, issued from good and lawful authority, and shall perform and execute all the duties pertaining to the office of a deputy shcrifT, required by the laws of of the state (or commonwealth) of — .-— , and shall save and keep harmless and indemnified the said J. W. his executors and administrators, of and from all actions, suits, troubles, costs, charges, damages and expenses whatsoever, on account or by reason of any malfeasance, misfeasance or nonfeasance of him. the said J. S. in his said office of deputy sheriff, then 46* SHERIFF, CORONER & CONSTABLE. bond hom this obligation shall be void and of no effect, other- DEPUTY . ^^ r -^ly wise the same shall be and remain in full force, strength and virtue. Signed, sealed and delivered-v <. J J. S. JL. ft. I m presence ol » L j op r J * "• L*" & -J Q ;£ j j.n. [Ls-i Uoml from a goaler to the sheriff. The obligatory part the same as the preceding. *°gLh£ m Thc c° nditi0 n of lhe above obligation is such, that whereas the above named J. W. at the special instance and request of the above bounden J. S. hath constituted and appointed the said J. S. to be goaler, and keeper of the common goal or prison, in , in the county of aforesaid, and of all sueh prisoners as arc, or shall be lawfully committed to said goal or prison; Now if the said J. S. shall faith- fully execute his said office and trust of goaler, and keeper of said goal or prison, and of all suclt prisoners as arc or shall be committed to said goal or prison, according to the laws of the state (or eommonweath) of ,• and shall well and truly keep all such prisoners as shall be committed to him, and therein shall save harmless and indemnified thc said sheriff, his heirs, exeeutors and adminis- trators, at all and every time and times hereafter, of and from all manner of escapes, of all manner of prisoners which shall be committed to thc custody and safe keeping of the said J. S. or left under the custody of his deputies or servants, in thc keeping of said goal or prison ; and of and from all, and all manner of judgments, executions, fines, charges, I roubles, damages, costs and incumbrances what so- SHERIFF, CORONER & CONSTABLE. «ver, which shall or may grow or happen !o be taxed} imposed, estreated or levied upon, ol or against the ^y'O said sheriff, as sheriff of said county aforesaid} for and by reason of any such escapes as afore laid. A if said J. S. shall indemnify and save harmless the said sheriff, his heirs, executors and administrator . from all malfeasances, misfeasances, and nonfea- sances of him the said J. S. in his said office of goaler and keeper of said prison} and his deputies and servants in the keeping of said prison, then the above obligation to be void and of no effcet, other- wise to be and remain in full force, virtue, and strength. Condition of a replevin bond. The condition, &c. That whereas the above named i p sheriff, by virtue of his office, and upon the complaint of the above bounden J. S. hath delivered to tin- aame J. S. two horses and five cows, which one W. T. Inn- took, and wrongfully withheld, as the said J. S. says; if the said J. S. do pursue his said action with effect against the said W. T. for the taking and with- holding the said horses and cows, and do make : turn of the same, if return thereof shall be adjudg- ed bylaw; and the said sheriff, his heirs, executor . and administrators, shall acquit, discharge, and save harmless of and from alljand every thii: < on e.erning the premises. That then. £'c. Another. The condition, Uc. That whereas the above named sheriff, by virtue of a certain writ of replevin} (here describe the writ, in whose favour mid against ivhom, when issued, when tested, to what court, and at what time and place returnable. ) diree- TOL. i. 60 *6« SHERIFF, CORONER & CONSTABLE. REPLEVIN BOND. ted to the sheriff aforesaid, hath delivered and re- plevied to the same J. S. ( the "plaintiff) two horses, &c. (as in the preceding. J Another. The condition of this obligation is such, that whereas the above hound J. B. on the day of sued out of the clerk's office of the court of common pleas in said county, a writ of replevin against the said M. N. in due form of law, in which writ the said J. B. has alleged the value of the goods and chattels (or cattle) distrained (or impounded) at the sum of dollars, the same being returnable to the court of common pleas aforesaid, next to be held at aforesaid, within and for the county aforesaid, on the day of (or sued out a writ of replevin against the said M. N. in due form of law, the same being returnable to P. M. esquire, one of the justices of tlie peace for the county aforesaid, at his dwelling house in in said county, on the day of at of the clock in the noon) as is at large alleged in the writ aforesaid, and as by the return thereof will more fully appear. Now if the above bounden J. B. shall prosecute his said writ of replevin to final judgment, and shall pay all such damages and costs as the said M. N. shall recover against him, and shall also return the goods and chattels (or cattle) replevied by virtue of the writ aforesaid, in like good order and condition as when replevied, in case such shall he the final judgment of court in the action aforesaid, then this obligation shall be void ; other- wise the same shall remain in full force and virtue. SHERIFF, CORONER /v CONST \ 111 I 467 - Condition of a bail bond, in ,NYic-J'orA\ C Obligatory part the same us the bend from &e\ sheriff to principal. J The condition of (he above obligation is nek, that if the above bounden V. D. do appear before i In- justices of the supreme court, for before thcjuillet of any other court to which the writ is rthtnuU at- on the day of A.J). to answer i to A. B. in a plea of debt for trespass, or as I fir writ may require, J demanding the sum of then ib<- above obligation to be void, and of none effect, "i else the same to stand and remain in full fen ■>■ and virtue. Another, in Connecticut. The condition of the above obligation is inch, tl. whereas the above bounden C. I), is arrested, ii i!n suit of A. B. of by writ, demanding tn of to appear before the court of common j i to be held at on the da; of It the abovesaid C. D. do appear at the tint and pi above mentioned, to answer to said A. l\ suit, then this obligation to be void, ela and remain in full force, strength, and Another. Know all men by these presents, of in the county of and J.N. of same county, arc holden, and iivw.U of said , a constable thereof, in the (as in the form of obligation Jtrsi gben.J iCS SHERIFF, CORONER & CONSTABLE. The condition of the above obligation is such, that if the above bounden J. S. do appear before L. O. esquire, a justice of the peace, in and for the county of , at his dwelling house in in said county, on the day of to answer unto A. B. of ,&c. in a plea of trespass, Cor debt, or case, as tlie writ may require, J demanding the sum of then this ob- ligation to be void, otherwise to remain in full force and virtue. Another. The condition of this obligation is such, that whereas the above bounden J. S. has been arrested at the suit of A. B. of by virtue of a writ, demand- ing the sum of to appear before J. B. esquire, justice of the peace, within and for county, at his dwelling house in , in said county ,• if the said J. S. do appear before said justice, on said day of to answer to said A. B. in his said suit, then the above obligation to be void, otherwise to be and remain in full force and virtue. Another, in Massachusetts. The condition of this obligation is such, that whereas the body of the above bounden J. B. is taken by virtue of a writ or process, bearing date the day of at the suit of N. B. of in the countv aforesaid, to answer unto the said N. B. in a plea of by the said N. B. commenced, to be heard and tried at the court of common pleas, next to be held at wilhin and for the county aforesaid, on the day of (or in a plea of by said N. B. commenced, to be heard and tried before J. S. es- quire, one of the justices of the peace for the county aforesaid at his duelling house in , in said SHERIFF, COROXER\ CONOTABLB. county, on the day of :ii •fUMtlteh in the — noon) as is at large alleged in the wrii ur process aforesaid, and ;i^ bj the return thereof will . more fully appear. Now if tin- above bounden .1 IV shall appear at the court aforesaid, and shall an- the suit aforesaid of the said N. \\. in manner and form as the law directs; and shall abide the lin.tl order and judgment of conn in ili«- lotion ■ f eroe a i d, and shall not avoid, then this obligation lhall be void, otherwise the same slmll remain in full I I and virtue. Assignment of bail bond. Know all men by these presents, thai 1. A. li. esq. ' sheriff of the county of , vnlhin named bare, at the request of C. 1). the plaintiff, also within named, assigned to him the said plain! ill'. t!ie within written bail bond pursuant to the statute in snefa I made and provided. In witness whereof, I hi hereunto set my hand and seal of affiet, iIun of in the year of our Loi d, 1 S If the sheriff zoes nut of office, ami often ' assigns the bond, he ought to stwfc himself, •• ' sheriff." Receipt for a bitU bo I do hereby acknowledge to have received, ol from A. B.W sheriff of the eounti of the hail bond for the appearance of C. 1>- be« justices of the court of {or before the court , ol a t in the county of «•» ''" of in a plea of demanding the sum of and dated the day of PMtJ "^ ,1,,; with an assignment thereon endorsed, nanatd u ♦70 SHERIFF, CORONER & CONSTABLE. lectin ior the statute in such ease made and provided. And in '^^"'considcraUon thereof, I do hereby promise to save harmless, and indemnify the said sherifT, of and from all actions, suits, amercements and costs whatsoever, relating to the said cause, bail bond, or assignment thereof, as witness my hand, this day of ^8 Prison Bond. (Obligatory part the same as from deputy sheriff to principal.J rrison bond. The condition, &c. That if J. S. of above named, who is now in the common gaol, at , in said county, under the keeping of the above named sheriff, by virtue and reason of a writ of capias (or attachment) for trespass, (or debt, or otherwise, as ihc case may be,) demanding the sum of on the behalf of R. S. &c. moved and commenced, be from henceforth and remain a true and faithful prisoner, tarrying and remaining with said sheriff, and shall not at any time, nor in any wise escape, or go with- out the limits of the liberties of said gaol, until dis- charged by due course of law. Then this obligation to be void, &c. Another. The condition, &c. that whereas the above bounden J. S. is imprisoned in the common gaol at in said county of , under the keeping of the sheriff above mentioned, by virtue of an execution (or writ of capias ad satisfaciendum) issued on a judgment rendered by (here describe the court, and where held, &c.) in favour of R. S. of in the county of — and state of , against him the said J. S. for the sum of including debt, (or damages.) costs am! SHERIFF, CORONER & CONSTABLE. in officer's fees for commitment of him the said J. ft aw» mi If the said J. S. shall remain a true and faithful *^^ prisoner, and shall not at any time, or in any wise escape, or go without the limits of the liberties of said goal until discharged by due course of law. then this obligation to be void, &c. Jlnother. The condition of this obligation is such, that whereas the said J. B. on the day of was committed to the prison in aforesaid, in the county aforesaid, by virtue of an execution issued upon a judgment recovered against the said J. B. by the said J. J. for the sum of damages and costs of suit, at the court of common pleas, held at aforesaid, within and for the county aforesaid, on the day of (or before B. M. esquire, one of the justices of the peace for the county aforesaid, at his dwelling house in in said county, on the day of ) (or by virtue of an original writ on the day of sued out of the deck's office of the court of common pleas, against the said J. B. in due form of law r , bv the said J. J. for the sum of the same being returnable to the court of com- mon pleas, next to be holden at aforesaid, within and for the county aforesaid, on the day of ) (or by virtue of an original writ sued out on the day of against the said J. B. in due form of law, by the said J. J. for the sum of the same being returnable to B. M. esquire, one of ihe jus- tices of the peace for the county aforesaid, at his dwelling house, in in said county, on the day of at of the clock in the noon) as by the said execution (or writ) (or by an attested copy of the said execution) (or writ) now in the cus- tody of R. M. the goaler of said prison will tnoiv 473 SHERIFF, CORONER k CONSTABLE. l'RISON BOND fully appear, by virtue of which execution (or writ) and commitment as aforesaid, the said J. B. is still imprisoned in the prison aforesaid : Now if the said J. B. shall continue a true prisoner, in the custody of the goaler of the said prison, and within the limits of the said prison until he shall be lawfully dis- charged from the same, without committing any manner of escape, then this obligation shall bt? void, otherwise the same shall remain in full force and virtue. Another, in Connecticut. The condition, &c. If the said J. S. shall be and remain a true and faithful prisoner until dis charged by due course of law, then this obligation to be void, &c. For condition to bond for the liberty of the gaol- yard, in New-Hampshire, Vermont, and Rhode-Island? see Vol. II. END OF VOL, L INDEX. ACTION of Assumpsit, i. 287. Covenant broken, i. 288. Debt, i 289, 290. Case. i. 291— '295. Trover, i. 296. Trespass, i. '297, 298. False imprisonment, i. 299 — 302. Actions against sheriffs, constables, &c. where brought, ii. 9^- pleadings therein, ii. 93, 94. limitation of, ii. 120, 260. Arrest, what, i. 15. by whom made, i 116. how executed, i. 65, 115 — 118. persons privileged from, i 118 — 125, 249. ii. 225. times and places in which it in y not be made, i. 1 1 8 — — 1 prisoner permitted to go at large to procure bail, may nut lr retaken i. 65. If non est inventus be returned after the person if arrested, h' - may maintain trespass and false imprisonment, i. Writ of, and how served, ii. 409. attachment, what, and how executed, i. 75, 76. ii. 350. issued for corrupt practices, i. 76, 77. oppressive practices, i. 77, 78. vs. sheriff for contempt, i. 78 — 84. vs. coroner, i. 82. to answer, and how executed, i. 84 vs. sheriff in New- York, for contempt, i. SS— to answer in Massachusetts, i. 93 — 98. Connecticut, i. 98—102. ii. 220. New-Hampshire, 876, - Vermont, i. 102, 103. ft. 353, 3Co Rhode-island, ii. 412 — 4lo. Forms of returns of, of the body, "10. of goods and chattels, i. 310— of bank than »l* iOT. T. fi| iW* INDEX. Attachment, forms of returns of, of turnpike, &c. shares, i. 313, 316. foreign, i. 313, 317. of lands in Massachusetts, i. 317. Connecticut, i. 317. Vermont, i. 3 IS. Rhode-Island, i. 319. Foreign, how served, ii. 56 — 58, 221. Attorney, counsellor, &c. neither sheriffs, coroners, constahles, noi deputy sheriffs may act as such, ii. 16, 107, 108, 227, 273. BAIL, vrhat, and why so called, i. 130. must be taken in personal actions, i. 1j0. ii. 25, 223, 424. manner of taking, i. 131, 275. bond for, when good, and when not, i. 131 — 135. in New- York, how far sheriff liable for taking insufficient, i. 136« in Massachusetts, sheriff liable for taking insufficient, i. 136—158. in Connecticut, i. 138, 139. ii. 224. in Vermont, i. 140, 141. bond for, forms of conditions, i. 467, 468. assignment of, i. 469. receipt for, ibid. In Connecticut sheriff not liable for taking, if good at the time of taking, though insufficient at the time of rendering judgment, i. 174. not required in New- York, if cause of action be not expressed in writ, ii. 25. bond for, may he assigned, ii 26. statute regulations of, in Massachusetts, ii. 131, 132. New-Hampshire, ii. 282, 283. Vermont, ii. 385. Bail-piece, in Vermont, ii. 385 Bonds, forms of, from under sheriff to principal, i. 460. general deputy, i. 4 63. from goaler, i. 464. replevin, i 4f>5, 466. ii. 351. bail, i. 467, 468. .i 351. assignment of, i 461. receipt tor, i. 469. prison bonds, i. 470 — 472. ii 302, 374, 425. lor ease and favour, void, ii. 427. Breaking doors, what, i '26, 127, 129. when lawful and when not, i. 126 — 129. CITY SHERIFFS and borough bailiffs, ii 261. Commitment, what, and under what authority, i. 146, 147. INUfiX. Commitment, warrant fur, must be certain, and , ,1 com!.. i. 49, 146—149. ought dearly to expn , i. 49, | outfht to be to the coma ■•■ in Vermont, party committed on a chimed hi execution within fifteen day I aft or sheriff is not liable, i. 199. prisoners in custody, entitled to copy of wa ii 17-'. in Connecticut, persons committed on holden longer than five day- after where final judgment is rendered, unl execution, ii •22b. Constable, antiquity of his office, i 38. the name, whence derived, ibid. a common law officer, ibid. a conservator of the peace, i. 39. an informing "fiicer, ibid. his duty ami antttorfty a> oontoivator of I serving warrants, i. 39 — 45. must serve coroner's warrants, i. may commit a person regularly charged with theft, i. 41. cannot act as such until sworn, i. 48, i6. is the proper officer to a justice of the peace, i. 4 J. his office being ministerial, maj make a deputy, ibid, lift jurisdiction, i 42 need not show his warrant but state its coutentr. cannot retake on the same warrant alter a voluntary escape, i. 43. under what warrant be may justify, i. 4.i, 46. his duty as he;>.d of the watch, i. 4j. liable for neglect of duty in making false return in • civil process in New-York, i i oannot in Massachusetts serve process m a real how, and when appointed, i. 4f>. ii. 80, 191, hiG duty in serving civil process, in .V in city of New- York, must give bonds, bow habit for diford must remove paupers on warrant, ii must inllict corporal punishment by order ot sions, ii. 92. how proceeded against for default in levying . . city of New- York, ii Statute regulations concerning, in Maomchu - i , necticut, 476 INDEX. Constable, statute regulations concerning, in Vermont, ii. 334 — 336, 5yl —396. Rhode-Island, ii. 435— 437 Coroner, antiquity of his office, i. 33. how chosen, i. 53 ii. 1, 268. his office judicial and ministerial, i. 33; must take inquisitions of deaths, in what cases, and how, i, 33—56. ii. 77—79, 184—190, 318. must hear evidence from all, i. 36. ii. 519. the extent of his jurisdiction, i. 36, 37. is snenff's substitute as a ministerial officer, where sheriff may not act, i. 37, 59—61. ii 77, 184. must inquire of shipwrecks, i. 37. in Massachusetts not liable for escape if the party is gaoler, and sheriff have no one to receive him, i. )74. must be notified by sheriff of his appointment, ii. 121, 184. DECLARATIONS, forms of, assumpsit for officer's fees, i. 411. debt for escape on execution, i. 412, on bail bond by sheriff, 414, 429. on prison bond. i. 4o2. case for escape on mesne process, i. 416. false return of nulla bona on execution, i. 419. not taking replevin bond according to sta- tute, i. 422. not assigning bail bond, i. 427, 433. upon receipt given to officer levying state warrant or execution, i. 435. vs. sheriff for default of deputy in not levying and returning execution, 437. vs. constable for not levying and returning two ex- ecutions, i. 438. vs. sheriff for escape by deputy, of one taken on execution before commitment, i. 439. vs. sheriff for escape after commitment on execu- tion, i. 440. for escape on execution, i. 441. for neglect of deputy in not serving exe* edition, i. 442. for false return ou execution by deputy, i. 443. for neglect of deputy in not arresting on execution a debtor in his presence, ib. for not payiog money received on execu- tion, and not returning alias execution, i. 445. INDEX. k r- Declarations, forms of, vs. sheriff for not executing | ,„ „, false return, i. • i7 for not return in- :i v. r:t ol rn.--nc pr .. ■• . i. 44a. tor an escape from gaol b< levied, i. i (''. for escape on an a|;a. for confining p|« stiff ia alecs -a. : he had the liberty "l t|„ >; ; , , , t , , vs. depaty sheriff, being* party ta .. irril i .1 ing the fame, though directed li I i. 451. for assault and false MnptUbntMBt, I . con- stable, and complainant, i ■* . .. vs. coroner, foi taking note, and returning. CUtioil Satisfied, 1 00. Decrees for sale of mortgages, how executed, ii. 55. Deeds, forms of, ii. 438, 43'. : >. Deputy sheriffs, general, their appointment, fcft i. I . 270, 271, 330, 331, 404, number not limited at common lav, 1. 13. each has all the power of she nil except ma: ties, ibid, nor can sheriff restrict or limit their power*, i. hold their office at the will ol the sheriff, ii. 214, 215, '271, 3+3, 405. ought to give sheriff bond of indemnity, i. 14, Ii must be sworn, ii, 5, 214, 404. may empower another to do a particular art, i. , are responsible for acts done by them :i ft armis, may in some cases in New- York serve tbeii own writs i. 20. promise to pay a yearly sum for depatatioi . need not show tfieir warrants, i. may in Vermont serve writs in i.i- ml I lei the towns in vvhuli tin y live, 1 special, his appointment, i. 10, ii. 214. 9heriff not bound to return win t»JP lun. nor is sheriff liable to plaintiff foi bii sets, .. forms of appointment of, i. 461, 462. statute duties of shci 1 II m Rhode- Island, ii. '■■ i Distringas, what, ami how direct. . I uu I tei . I, I -106. vs. defendant, forms of leturus ol vs. jurors, issued in deti.nue after judgment, i, 1 ' '. **« INDEX. ELECTIONS, Sheriff's duty in relation to, in New- York, ii. 75—76 . Massachusetts, ii 178 — 180. constable's duty in relation to, in Connecticut, ii 257 — '260. sheriff's duty concerning, in New- Hampshire, ii. 3)4, 315. Escape, what, i. 15 l 2, ii. 39. either voluntary or negligent, i. 152. when negligent, party may be retaken by officer, i. 53, 157. officer not liable tor, until party is in actual custody, i. i 52, 153. on mesne process, how far officer is liable, i 153, 154. on execution, what, i. 454 — 158 in what ca'ses sheriff excuseable for, on execution and in what not, i 157—159, .7i, 175. to what extent sheriff liable for, i. 160. on criminal process, what, i. I6i, 162. on what cases, and how far gaoler liable, i. 49 — 53, 162 — 165. on mesne process, in New- York, i. 165, 166, ii. 39 on execution i. 167, 168, it. '39. from gaol liberties, i. 169 — 271, 268, ii 33. on mesne process, in Massachusetts, i. 171, 172. from gaol yard, i. 172 — 174, 269 in Connecticut, cases in which officer may justify, and the coa-^ trary, i. 175—17 ', 185, 2 r 0, ii. 290. in Connecticut, from gaol liberties., i. 271. action fur, vs. county for insufficiency of gaol, i. 190— 1S5. i:i Vermont, how far sheriff liable for, i. 185 — 187, 274. in New-Hampshire, from gaols, i 72. penalty on sheriff conniving at, &c. ii. 39. retaking on fresh pursuit, when and how to be pleaded, ii. 39. penalty for false swearing, ii. 39. Execution, what, i. 189 — 192. habere facias, seizinara & possessionem, what and how ex- ecuted, i. 189—191. retorno habeudo, i. 192. against the body, when issued and how executed, i. 193 — 195. after arrest and compromise officer enitled to poundage, and attorney liable for non-r sidents, i. 2i6, 217. if party taken thereon pay the money, bt must be discharg- ed, i. 195. a discharge of one of several defendants taken thereon dis- - charges the whole, i. ,95, 196 in New-Y'tk party surrendered in discharge of, bail cannot after three months be taken thereon, i. i 96, ii 37. ii Connecticut returnable according to law runs to nest court fceld after sixty days from date, i. 191. INDFX Execution, in Connecticut if party arretted tend* nfl property, officer must take n and n h ... II 199. a lawful impediment arising aft. r an opportunity neglected, will not exonerate officer, j, vs. goods and chattels what, and how exe< ub .1, i. 201— I 211, 212. what article.* liable to. at common law, i. 20|_21l. articles exempt by statutes of New- Yd M tts. Conaecticot, ii 130. Samps] \ ■ mool RIiim'i -island. V>itf staiut? regulation! c'»tr,-rn: superseded by v rror before cummeucea vs pooi • chattels and lands, i, 2'3. how levied on lands and tenements In New Vork, i. 214, 262, ii 46, 48, bO what e-tate included under lands and t< i.< an i.t>. i, J;.,. 215 levied on lands and a compromise, officei - i.t.i. „,d age, i '. I ... vs g ods, chat eis, body and lands, 1. CIS levied '.1. lands in Massachusetts, 1 ill. . r mn 1 sinki return o! his doings, 1. 2.9, '220, 263. lain: in Massachusetts may not be takej., uni, ance of creditor, when seizin must be delivered t.. aim, 1. 220. may be levied on land in possession of the alienee of the de- visee, i 221 to feme covet in Connecticut, being ci ditor, on on*- of the appraisers, i. 221. terms for years, and estates lor lite must i.«. sppraisnl as resH estate, i 221, 224. any justiee () f the peace within the town is the next justice for appointing appraisers, i. 22 2. if an officer by direction 01 the CD ditor 1< <-v M and proceed to appraisal, he cannot t, and levy upon good- and chattels, ;. ii an equity of redemption must be appraised as bod, officer's return of levy on land imisi ihoa that the ■ppratsejl were indillerrnt freeholders, 1 293, 22 + must specify all the requirement- t reel a title in cieditor, i 21 appraisers of land taken on, must he freeholders of 1 - • where the land lies, or levy is vO'd 48U INDEX. Execution, in Vermont two executions against the same debtor, and in favour of the same creditor, may be jointly levied on the same land, i. 224. if stayed by supersedeas, officer not entitled to fees, i. 225;' returns of, vs. the body, i. 335 — 338. vs. goods and chattels, 339 — 355. levari facias, i. 356. levied on lands, i. 357 — 375. liab. fac. seizinam & po^sessionara, i. ^76, 377. seizin in dower, i 379, 380. seizin in waste, i. 382. writ of partition, i. 385. statute regulations concerning, in New- York, ii. 46 — 54. issued by justice in New-York, ii. 83. from courts of justices, ii 88. statute regulations concerning, in Massachusetts, ii. 133 — 145, Connecticut, ii 228 — 235. indifferent persons may in certain cases be deputed to serve. ii. 229. statute regulations concerning, in New-Hampshire,ii.284 — 290„- Vermont, ii. 357 — 369. Rhode-Island, ii. 417 — 423, Exigent, writ of, when awarded, i. 112. ii.71 — 73. forms of returns of, i. 326 — 328. return of wiit of proclamation upon, i. 329. ii. 72, !J3. FEES, sheriff's, in New-York, ii. 97—100. coroner's, ii. 101. constable's, ii. 101 — 103. gaoler's, ii. 104. Sheriff's and constable's in Massachusetts, ii. 201 — 204.- gaoler's, ii. 204. coroner's, ii. 204 — 206. sheriff's and constable's in Connecticut, ii. 245, 246. gaoler's, ii. 264. sheriff's and constable's in New-Hampshire, ii. 326, 32?.- gaoler's, ii. 327, 328 sheriff's and constable's in Vermont, ii. 390, 400. gaoler's, ii. 40^', sheriff's in Rhode-Island, ii. 441 — 443. town sergeant and constable, ii. 443. OAOLER, his appointment and office, i. 48. ii. 271, 2S6, 334, 393. powers and duties, i 48. ii. 272. liable for escape, i 49. ii. 296. to what extent, i. 49, 50, 51, 57. after voluntary escape cannot retake the party, i. 63, 157'. INDEX. 481 Gaoler, liable to action for abuse of prisoner, i. 53. is guilty of felony if such abuse occasions prisoner'* death i. 54. is liable to action of escape if he re!u >e prisoner arrested on mesne process, though after the return day of the writ, and to fine if on criminal process, i 55. and to attachment for gross misbehai lour in office, i 55. 78. liable in debt for escape of pn-oner in I -•' Dtioo, i. 55 56. not liable for escape of one surrendered in discharge of bai^ unless sheriff assent to surrender, I 56. may Mi certain cases hamper prisoner with irons, i 55. not liable for escape of one committed "ii TO d process, L 57. continues in office after death of sheriff, ii. 111. must receive delinquents, ii. 393. Gaols, what, and how provided at common law, i 2t>:>. rules of Marshelsea and Fleet prison, i 865, 266. in New-York, how built and repaired, i. when destroyed, &c. how prisoners may be disposed of, i. 266; 267. liberties, of what extent, and how ascertained, i. 267, '268. condition of prisoner on the liberties, i 268 in Massachusetts, how erected and res^awd, i. 268, 169. liberties, how determined, i 269, i70. in Connecticut, how erected ami regulated, i 270 county liable for escapes through insufficiency ot, i. '270, 871. liberties, how ascertained, ibid, in New-Hampshire, how erected and regulated, i liberties, how ascertained, 272,878. in Vermont, how erected and regulated, i. 273 n. 370. liberties, how ascertained, i. 27+. fJAJBtAS CORPUS, i. 241. writs of different kinds described, i. 241. ad subjiciendum, how obtained, and by whom I*. sued, i. 242—244, 24S. ii- 41, 386, 429, ad subjiciendum, to whom directed, and by whom returned, i. 144, 245. ii. 49, 384 what return sufficient, i. 846—248, 850, ii. 386, 430. return must set forth all the facts as they truly are, i. 248, 257. in whose favour, i. 243, 248, ii. 171. issued in favour of poor prisoner boldea alter tak- ing oat!) provided tor his relief, i. 249. forms of return* of cum causa, i. 389—394. penalty on chancellor or judge for refusing, ii. 41, VOL. I. _** t »B% INDEX. Habeas corpus, duly of sheriff on receiving, ii. 4?, IT I, 4*72, 439. prisoner may not be removed from common gaol by virtue of, after court of oyer and terminer proclaimed, ii 43. prisoner liberated by virtue of, may not be reirr. • prisoned for same cause, ii. 43. High bailiff", ii. 339, 340. Highways, inquisition of damages in laying out, ii. 384. when out cf repair,, sheriff to complain to county court, ii. 246. Iloinine Replegiatido, i. '240. forms of returns of, i. 388. when and how issued, ii. 174. INQUISITIONS of waste, i. 383. dower, i. 380. damages, i. 334. death by visitation of Gon, i. 404. murder, i. 321, 404—406. manslaughter, i. 407. self murder, ibid, chance medley, i. 408. hmacy, i. 409. misfortune, i. 409, 410. death, how taken, ii. 320, 32 1, 322; Inspection law.*, officer's duty in relation to, ii. 183. Issues, what, i. 10S. duty of Sheriff in returns of, i. 103, 109. Sheriff liable for, ii. 8. may in certain cases be sold, ii. 19, 20. Jurors, venire facias of, i. 323. habeas corpus, i. 324. distringas, i 325. Sheriff's duty in retuK&ing, 65—69, 175, 177, 243, 244, 310, 311, 3S7— 390, 4,Sd Constable's fluty- respecting, ii. 245, 246. .OTTERIES, unlawful, sheriffs, Coroners, constables, &.c. to pevent ii. y. • '.TJ IIS, forms of, of sheriff on sale of land subject to quit rent, ii. 14 of constable having charge of jury, ii. 83. of office of sheriff, deputy sheriff, coroner and chief-marsha in New- York, ii. 95. of office of Constable, ii. 96. of sheriff, coroner and deputy sheriff in Massachu setts, ii. 19'.'. of Constable, ii. 200. INDEX. 4 ss Oaths of oflice of sheriff in Connecticut, ii. 2G2. of deputy sheriff ii. g<)2, of constable, ii. 263. Of sheriffs, coroners, deputy sheriff* and constables in New-hampshire, ii. 3J. : ,. in Vermont, ii. 398. !75. OBLIGATIONS, covenants and promises, i. Q- bail bonds, what and how taken, i 275. when valid and when void, i. 21t~'i%5. void when taken colore officii of prisoner fu. <* not within the statute, i. 878 fdr ease and favor void, i. SJ79 taken from an under sheriff resricting his authority void, i. "81, 282. for fees on execution void, i. 277, 278. IM-omise to delay sale of property taken on execution » Old, i. ■SOS. bond for gaol liberties, with warrant to confess jud- merit, void, i. 28'J conditioned to remain a faithful prisoner, and pay foi victualling and gaoler's fees, void, i 284. in action for escape on prison bond sheriff not liable to, creditor shall recover o n |y nominal damages, i 281.' sureties on bond to indemnify sheriff kgsinit defaults of deputy during the space of six Booths, not lia- ble for defaults after, i. 285. Outlawry, what, i. 1 10. in what case> defendant subject to, in New- York, i. Ill, ii. 7a, 7i. in what cases defendant subject to, in Massachusetts, i. 111. Consequences of, i. Ill, 112, 113. proceedings to, i. 112, 113, ii. 70— 73, PRISONS and prisoners; sheriff h;«> < dar;;e of all prisons, except prison in city of New York, ii. 28. keeper of city prison, his duty, ii. 28. Sheriff to receive prisoners under process from United States ii. 28, 142, 170. liberties, by whom designated, ii. 2t. Sheriffs, &c. to receive telons in prison, ii. 30. may not demand illegal (ves, &c. ii. 51. prisoners, how to be kept in gaols, ii. 51, 236. may have the liberties on bond, &c. i. 271, 2J2 ii. 32. going beyoud the limits will ronytitufe an escapr ii 32. *84 INDEX. Prisons, bonds for the liberties assignable, ii. 33. debtor? 61 a certain description may be discharged, and how, ii. 34—37. spiritdus nquors not to be used in piiscns, except, &c. ii. 37. prisoners in custody may not be removed, except bv legal processor in cases of necesitj', ii. 161, 172, i73, 164,249. Statute regulations concerning in Massachusetts, ii. 155, 170. poor prisoners, how liberated, ii. i6j — 170, '236 — 258, 303 —306, 376, 381. 425—427. statute regulations concerning in New-Hampshire, ii. 296 —307. statute regulations concerning in Vermont, ii. 370 — 384. Rhode-Island, ii 424 — 428. Process, what, ii. 217, 276, 344, 4l2. to wl om directed, and by whom served, and how, i. 59, ii 218, 279—281, 549—356, 409, 411—416. may be served by sheriff, who is plaintiff, i. 60. if oiiginal writ be directed to coroner, residue of the process in same suit must be, i. 61. when directed to Elisor.-, i. 61, 62. must be received by sheriff when offered, i. 62. in what cases to be directed to coroner, i. 59 — 61. service of, i. 66 — 7 c). officer in all cases bound by his precept unless void upon the face of it, i. 63. style of, how tested, served and delivered in New- York, ii. 17—24. vs. absent and absconding debtors in New-York, proceedings of sheriff thereon, ii. 56 — 57, 221. of forcible entry, ii. 59, 60. from justice of peace in New- York, ii. SI. from courts of Justices in New York, ii. 86. how authenticated, served and returned in Massachusetts, in 116, 122 — 730. civil, may not be served on Sundays, ii. 12S. how authenticated, served and returned in Connecticut, ii. 2 1 7—227. bow authenticated, served and returned in New-Hampshire, ii. 278—279. foreign, how issued and executed in New-Hampshire, ii. 316, 317. bow authenticated, ii. 544 — 348. how served, ii. 349-— 356. how authenticated in Rhode-Island, ii. 409, 410, INDEX. 485 REPLEVIN, what, i. 227. sureties fur, i. 227, 228, ii. 64. 223. who may bring, i. 228, 229, 23.'), 237. in wh$t cases aml fc* what uticlei it lies, i. M9, 230, 236 ii. 61, '530. how sheriff must proceed in making, i. 130— -134. ii. 61, 62. when hahle for insufficii nt sureties, i 234, 235. ii. 6 >, 63. in Massachusetts, when issued, an8, 159. plaintiff's remedy, i. 144. Return of Process, what, and how made, i 255—257. upon mesne process may return rescous, i. 256. what in replevin, i. 256—260. in habeas corpus must specify all the facts, 1. 257. how made in waste or redeseizm, i. 257. in what cases sheriff liable for false, i. 257, 253. in » hat cases for not mak'ng, i. 258. must not return the writ befre return day, i. 259. cannot be made on Sunday, ibid, what may be returned in writ of seizin, i. 258, 259. need not return an execution whereon the money is collected' i. 258, 261. is good if it can be ascertained by the writ, i. 260. erroneous, may be amended while suit is pending, i 25S. what sufficient, and what not, i. "260. m New- York, general return to execution levied on land, suf- ficient, i. 261, 262. sheriff's return uot essential lo title of purchaser, i. 262. otherwise in Massachusetts and Connecticut, uhere returns must specify all the requirements of the statute authorizing such levy without which no title is vested in creditor, i 263 Riots, duty of sheriff in Massachusetts, in j-nppressing, ii. 118—120. jud constable, in Connecticut, ii. 208—211. A New- Hampshire, ii. 271. in Vermont, ii. 3l>6— 358. i Rhode-island, ii. 433, 43+. *S6 INDEX. SHERIFF, antiquity of his office, i. 1. his great authority power and dignity, i. ], 2, 4, -.7. in England succeeded the earls, i. 2, 5. the derivation of his name and office, i. 2, 3. how appointed and discharged, i. 5. iii New- York, ii. 1. in Massachusetts, ii. 105. in Connecticut, ii. 207. in New-Hampshire, ii. 268. in Vermont, ii. 329. in Rhode-, sland, ii. 463. continuance in office, i. 6 ii. 3, 106, 207, 263, 330, 343. his offi'i cannot lie divided, i. 6. lias tht custody of trie county, i. 7. is a conservator of the peace, i. 7, 8, 12. ii. 208, 332. may seize and commit felons, and other high < flinders, i. 7' ii. 7 to justify him in so doing, a felr>"v must have been com- mitted, i. 7. may raise the p»sse comitatus in the execution of his office, i. 7 ii. 1 Id, 2i -, 273, 332. his command suffi< eht to justify his assistants, i. 8. if resist' d may justify beating, and imprison the resist- ors, 'bid. is the king'- ba'l ft", and must seize forleitures, &c ibid, jnust account tothe exchequer, i: '0 execute all processes issuirg from the king's courts, i. 8. return juries, i. 8 execute the sentence of the court, i 8. ii. 241. is the. same officer to the king's courts, as constable to justice of the peace, i. 9. if kdied in execution of his office, it is murder, i. 9, 19. must serve all processes, i. 10 ii. 107, 109,211,218,330,405. * may appoint under sheriff, i. 10 ii- 4. alsoa gaoler, i. 10 ii. i()7, 213, 334i. general and special deputies, i. 10, 11, 13. ii. 5,213,214, 270, 3^0, 331, 404. his under sheriff, gaoler and deputies must all be sworn, i. 1 1 . is answerable civiliter for all their acts, i. 11, 23, 24, 2,7. ii. 106, 107, 272, 331, 404. may be amerced for acts of his officers, i. 12. cannot restrict the power or authority of his under sherifT, i. 13, 14. nor of his general deputies, i. 13, 14, hond for that purpose, void, ibid, has the custody of gaols, i 14, 48. ought to tab; bond from his officers, \j H. JfVDEX. i.87 MO i >.«„,.;:■; *^:::~< r -n,,,^,,,, «'*'« »a„a„, ,,;',, '' '">• "* " """> P«W lb. «*». „,„, i'»"«'.-U Ny , ut the day „„ „,,,,,, .,' '" ""' « » «''•'. I 17. fe, .„.„ st u. „ ic . ,,;.';"'"" « "»«" -mi. i. * -v S „„: 1Vmustrccei ;^;; f ";"-'. -wk l is. tar., i. 1 8. °™' """"" a " J »'i« by iaclen- if slierill" dj e in oir . . of * rnsoners ^7.^°" '" * »"* ^ "«■ i. 19. '• a " J ""■"' «"" »' ramartw ,.,, *Z. 1!T his " fe ' »"-* -* - «« „ac ktolfcc may «se all necessary force, i. 14. if killed in doing his.lnfir ;■ not, 1. J9 . ° dU ' y ' " ? ■"■*». butif he KiUs res ist 01 , is responsible for his deputies as « ..1 i . 20. P ' MWeH ""■ -case, j. 19, may execute bis office until & appointment nf. , » liable to be arrested in New y T -ntiUedtofeestorsun^ ;^^';:;''r; ^etbevenireisretur^fS'^ eg0O " t0f:<:\. Sheriff ii not entwarable for contrai I va ule by hii di ptttiei to «1 ■> what the lew >loes not require, i. '27 remedy may b.: had an sheriff** bond '>> Lb. for injmies by , i. 127. liable hi treepa fori ti i uting process ol court pot ha\ing juris- diction, i. '28. may not, in Conrti ' tii nt, be wed by court of attachment, i. 28. liable to fine foi not n tun m, i. 30. may perform all minieteriel octsb'y depnty, i 30, city iharifEi bare the tame powers withiu thiir cities as county ■lieriffi within their > oui 1 1 . , need not ihow bis warrant, i 31. may in Vermont ' Ice advantage of the irregular itscdng tlic Miu- tanas on ban band, when med for taking insufficient bail, i. 32. must appoint gaolerj i. 46. must receive ;>u writ* t.. trim off red, and glvi r«ci i }>t s therefor, i. 62, ii 7, '211, 279, 3* J. may command a worn officer l>y parole to serve a writ, i. 62,63. may not dispute the authority of the court issuing process, uuleei void on the face of it, i. 63. must do m rvice with n i recy, speed and correctness, i. 63. Otherwise liable to the plaintiff, i S'J, need not show bis worratat if known as an officer, i. 64. but must declare its contents, hi. i is n - -! d, i 64 may pursue a defendant Beeinc into aii"th r county, i 64. liable tor seizing the person or goods of a Strang- r, though, &c. i. 65. indentures between old sheriff and new. i sheriff and under sheriff, i, 4j8. must give bond, ii. 2, 105, 267, 328. and be sworn, ii. 5, 103, 67, >v8 bonds, buw prosecuted, ii. r 06, 112, 113. sureties on, how far lahle, ii. [>, 6 Sec. must take up wrecks, ii 8. his duty on warrant against delinquent collector, ii. I on sale of land subject to quit rent, ii. 1 -', 13, 14. concerning escheats, ii, 13 power in convey irg prisoner to state prison, ii '.'. liable to penalty for detaining money collected en execution; ii. 108. not liable in Massachusetts to ai rest on civi! process', ibid. mode of collecting executioe against, ii. I0S, 1 OP. in New-Hampshire, how appointed, commissioned and sworn, ii. 268, 269. must account for fines, &.c ii 308, 50?. must distribute laws, ii. 39t>. INDEX. A89 Sickness, officer's duty in relation to, ii. 129, 181, 182,290. Summons, what, and how served, i. 71—74. ii. 349, 411. forms of returns of, i. 303—305. of assize, i. 396. Supersedeas, what, and its use, i. 251. with and without writ, i. 252. may be granted upon habeas corpus, i. 252, and on capias, i. 253. does not stay execution after commenced, i. 253. a defendant superseded on prison liberties, is discharged, i 233, 254. forms of returns of, i. 387. TAXES, duty of sheriff and constable in relation to, ii. 147, 252, 312, 313. Town sergeant, ii. 435—437. UNDER SHERIFF, his appointment, i. 10, 11. in New- York, ii. 4. his power and authority, i. 10, 12, 13. must be sworn, i. 11. cannot be restricted by his principal, i. 13- may do all acts that his principal may, ibid, must act in name of sheriff, ibid, ought to give bond to sheriff, i. 14. is indictable for oppression, i. 12. if a return be made by him, and he confess the same, sheriff cannot disavow it, i. 12. sheriff must be amerced for certain returns ol under sheriff, i. 12. but for false return action must be brought gainst under sheriff, i. 12. may depute * person to do a particular act, i. 2< but must do it in writing, i. 63. bow execute writ against lands and tenements, after death of sheriff, ii. 16. VENIRE FACIAS, what and how served, i. 107. ii. 310, 311, 387- 390. in Massachusetts, ii. 146— 15*. for execution of criminals, how issued and executed, ... 144, 145. . Q ,. Q4 how issued and served in New-Hampshire, n. .91-^4- Withernam, returns of, i. 233, 234. VOL. I. 63 ERRATA. «* serv^, savin" "^ *' *' ^ <° ' 8 > 22 > ^ o/ read on, 8, 23, •r read * • 5 8 L !' 7' "*" W ' * 4 ' ^ °^ 13 > ". «« ' ' B « tm time, place: 17 2T »(»„ £ . ■ 39, 7, for on read „* . 2I „o p' ' *' ***** firU ™ert jurors; courts;. .♦■ ' ' ° r Jw «"*"»*. preceding; 05 for court o/ Justus, court W j.,,H«„- ZB, ] 6 , for held, had -34 cm A , ■> anei P7j;e, read notice • 'rn q ~a read withernam : 77 23 a ft*r „ j ' ' ' after ca P"» ™> so, 5, to^^iS^o^r^r"!' 78, ?■ **■«■*«*>» 82, 18, for return 2« Un for, "f K ^ "* *«> jri and for o„ o /; 10l / |*£ £ ^ ^*'* **■* & *»«, 106, 31, for W, W ■ 107 d ' "?' "*" """ read hi U5, 15, for,,*, urit n\ l T l'J;]\ made; U °> l5 > «* to. «*. •*,• 163, is, i**;™;£ Jr^r-' ]4o > ». * "I, for a . at the end of he 1 1 h 1 9th 3d 1 ^ ' .""V""** ' had been inserted • 188 is r l ' ' read as if » ; only lea ' 1Bb » J3 > for unknown, knowu ,■ 2Q8 30 fW- , pursue: 209 U af> Pr *„j j ■ ' ' tor Preserve, r , *v. , jq., after Jind read oppositon ; 220 2 *»- each; 276,28, *r ,««„, „««„,. 29 ' ( ^ ^r fe ^T ^ 32, for /or/«< read /or/,,W • 354 ,«* ^ de ' e to * * 98 ' /^,r,- 426, 27, for«to, *^4. 7 ' 5 ' *' for ^ ^ % ?ORNIA LOS ANGELES LAW TJBRARY UNIVERSITY OF CALIFORNIA