By W. 2. c. 39. The treasurer of the exchequer shall deliver in a roll all the liberties in all shires that have return of writs. And if the sheriff answer that he hath made return to the bailiffs of any other liberty than is contained in the said roll, the sheriff shall be forthwith punished as a disheritor of the King and his crown[18]. And if peradventure he answer that he hath returned the writ to the bailiffs of some liberty that indeed hath return who hath done nothing therein[19], the sheriff shall be commanded that he shall not omit by reason of the aforesaid liberty, but that the Kings precept shall be executed; and that he make known to the bailiffs to whom he returned the writ that they be at a day contained in the writ to answer why they have not made execution of the Kings precept. And if they come at the day and acquit themselves that return of the writ was not made to them, the sheriff shall be forthwith condemned to the lord of the same liberty, and likewise the party grieved by the delay in restitution of damages. And if the bailiffs come not at the day, or come and do not acquit themselves in manner aforesaid, in every judicial writ, so long as the plea endureth, the sheriff shall be commanded that he omit not because of the liberty, &c.
That the statute, in this respect, was little more than a declaration of the common law, appears from Bracton. l. 5. c. 32.
By 12 E. 2. c. 5. Of returns which shall be made to sheriffs by bailiffs of such franchises as have full return of the Kings writs, an indenture shall be made between the bailiff of the franchise by his proper name, and the sheriff by his proper name. And if any sheriff change the return so delivered to him by indenture, and thereof be convicted at the suit of the lord of the franchise, of whom he shall have received such return, if the lord shall have sustained any damage, or his franchise be imblemished, and at the suit of the party who shall have sustained damage by that occasion, he shall be punished on behalf of the King for his false return, and render to the lord and to the party double damages.
Return of writs may be claimed by prescription as appertaining to a manor. But more especially may it be claimed as appertaining to an honour. Hardres. 423.
Where a man hath Retorna Brevium, which liberty comes to the hands of the King by escheat vel aliter, this unity in the King shall not extinguish the liberty. Keilwey. 72.[20]
This liberty of Retorna Brevium (saith C. B. Hale) is a dangerous liberty for him that hath it; for he is to be responsible for all the defaults of his bailiffs, as escapes, &c. And if the bailiff do not account for the collection of the Kings revenue he is responsible for it; 'tis a feather in his cap, but a thorn in his foot. 2 Vent. 406.
This liberty though it carries an exemption, yet it doth not exclude, but that the sheriff may execute writs within it. But then it is a wrong for which the lord of the liberty may have his action: but in some cases the sheriff may lawfully do it, as in the case of the King. A non omittas, &c. in case of execution of a writ of waste, whereto he is particularly empowered by the statute, and sometimes where the thing is divided[21]. (By Hale C. B.) 2 Vent. 406.
If an action be brought in a county, and the place where, &c. is the franchise of another who hath return and execution of writs within the said franchise, yet the writ shall issue to the sheriff, and he ought to make over a warrant to the bailiff of the franchise to execute the same writ; and the writ shall not be directed to the bailiff, &c. for he is not officer to the court. And moreover it shall be intended that all vills in the county are within the power of the sheriff till the contrary be made appear by return of the sheriff. 35 H. 6. 42.
To the sheriff the writ must be directed, though it be for a thing done in a franchise, and he shall send to a [l. the] bailiff of the franchise who shall serve it as a servant to the sheriff[22], and the sheriff return it Finch. 238.
And though the sheriff serve an execution in a franchise, yet it is good. And the lord of the franchise is driven to his action upon the case against the sheriff, for the sheriff is immediate officer. Id. Ib.
Where the sheriff makes execution in franchise it is good, for he is immediate officer to the court; otherwise where bailiff makes execution in the guildable; and the lord of the franchise in the first case shall have his remedy for infringing the franchise. 11 H. 4. Br. Execution. 32.
If the sheriff without Non Omittas serve process within liberty or franchise that hath return of writs it is good. 11 H. 4. 9. 20 H. 7. 7. But the lord of the franchise shall have action upon the case against him. Fitz. Nat. bre. 95.[23] But if the King be party the lord hath no remedy, for the writ for the King is always Non Omittas in law. 41 lib. Ass. 17. Cromp. J. P. 164.[24]
Where the King is party the venire facias shall make mention of non omittas; for where the King is party the sheriff shall not write to the bailiff of the franchise, but serve the process himself. 41 Ass. p. 17. Br. Fraunches & Liberties, 18.
The King hath no other minister than the sheriff, and where the King is a party no franchise shall be allowed. Fitz. Chal. 129.
Where the King is party as against felon or otherwise in action, the franchise shall not take place, but the sheriff ought to enter the franchise and serve the process, unless this clause licet fuerimus pars be in the charter, in which case it seems otherwise. 38 Ass. p. 19. Br. Fraunches & Liberties, 31.
If the King grant returna omnium brevium, yet he shall not have return of the summons of the exchequer. 22 Ass. p. 49. Br. Patentes, 32.
Per Glynn Ch. J. Mich. 1658; if one be arrested by the sheriff of the county within a liberty, without a non omittas, yet the arrest is good; for the sheriff is sheriff of the whole county, but the bailiff of the liberty may have his action against the sheriff for entering his liberty[25]; but upon a quo minus, a sheriff may enter any liberty, and execute it impune. R. S. L. 116. cites Pract. Reg. 72. Viner, Franchises, (B.) 6.
The sheriff, upon a non omittas, capias utlagatum, or quo minus, may enter and make an arrest in any franchise. L. P. R. 635. Viner, Franchises, (B.) 6.
In the county of Suffolk are two liberties, one of St. Edmund Bury, and the other of St. Ethelred of Ely: suppose a capias comes at the suit of A. to the sheriff of Suffolk, to arrest the body of B. the sheriff makes a mandate to the bailiff of the liberty of St. Ethelred, who makes no answer; in that case the plaintiff shall have a writ of non omittas, and by force thereof he may arrest the defendant within the liberty of Bury, although no default was in him [sci. in the bailiff of that liberty.] 5 Rep. 92.
But this is to be understood of the process of the Kings Bench; for Common Pleas recites the capias, the sheriffs return, that he has made his mandate to the bailiff, who has given no answer, and then gives the sheriff power to enter the liberty; but in the Kings Bench, on the sheriffs return on the Latitat, the authority is general, non omittas propter aliquam libertatem, which gives the sheriff power to enter not only that liberty, but all the liberties within the county: And this seems to be grounded on the words of the latitat, (viz.) latitat and discurrit, so that the defendant is supposed to skulk and run from one place to another; and therefore the non omittas was made general, that he might not run from one liberty to another. Gilb. Hist. C. P. 24.[26]
A warrant of a justice of peace to arrest for felony may be executed in a franchise within the county, for it is the Kings suit, in which a non omittas is virtually included. 2 Hale P. C. 116.[27]
By 5 G. 2. c. 2. § 3., in particular franchises and jurisdictions the proper officer there shall execute such process [i. e. where cause of action in superior court is under 10l. in inferior court under 40 s.] [made perpetual by 21 G. II. c. 3.][28]
By 13 G. 2. c. 18. § 6., for the better and more speedy execution of process within particular franchises or liberties, the sheriff of every shire, being no city or town made a shire, within which there is any franchise or liberty, the lord or proprietor whereof is of right intitled to the return of writs within such franchise or liberty, shall (if required by any such lord or proprietor) within one month next after such request made to him for that purpose, nominate and appoint one or more sufficient deputy or deputies, at the proper costs and charge of such lord or proprietor, to be resident at some convenient town or place in or near such franchise or liberty, to be for that purpose appointed by the lord high chancellor of Great Britain, and the chief justices of his Majestys courts of Kings Bench and Common Pleas for the time being, or any one of them, who is and are hereby authorized and impowered to appoint such convenient town or place as to him or them shall seem meet, and to settle and direct what costs and charges shall be paid therefore by such lord or proprietor; and such deputy or deputies shall reside at such town or place so to be appointed as aforesaid, and shall have authority in the sheriffs name, and is and are respectively authorized and impowered to receive and open all such writs and process (the execution or return whereof doth of right belong to the lord or proprietor of any such franchise or liberty) and thereupon in the name, and under the seal of the sheriff, to make and issue out such warrant or warrants to such lord or proprietor, as by law is requisite, for the due execution of such writs or process; and every such deputy or deputies is and are hereby required, upon tender of any such writ or process, to receive and open the same, and to issue out such warrant thereon, without delay, in such manner and form as the sheriff himself may or ought to do, without taking any further or other fee than what is now due and accustomed for such warrant; upon pain that every such sheriff or deputy respectively, who shall be guilty of any wilful neglect or default in the premises shall be liable to be punished for the same, as for a contempt of one of his Majestys said Courts of Chancery, Kings Bench, or Common Pleas (as the case shall require), and shall likewise make satisfaction to the party or parties that shall receive damage thereby.
Note. It is now usual to take out the capias and non omittas together, without staying for the sheriffs return[29]. Gilb. Hist. C. P. 26.
Note, If any of your defendants live within a liberty where the sheriff may not enter, you must get the sheriff to direct his warrant on your writ to the bailiff of such liberty, who may execute it; but if the bailiff of such liberty do not execute it, then you must at the return of your writ, get the sheriff to return a mandavi ballivo thereon, and thereupon you make out a writ called a non omittas, directed to the sheriff, and upon that writ the sheriffs officers may, upon the sheriffs warrant made out thereon, enter and execute the warrant within such liberty. 1 Instructor Clericalis. 44.
And Note, The usual practice in such case is if the defendant dwells in the country, to send down a non omittas with the latitat for dispatch. Ib.