One may be bailiff by a simple grant [i. e. by parol] or patent or inheritance. H. 33 H. 6. [3.] Fitz. Monstrauns de faitz, &c. 93.
A man may be bailiff of the King without patent or writing. 7 H. 7. 10. Br. Bailie. 46 & v. 2 & 9.
A man may be made bailiff to the King by naked matter of fact as well as to a common person. Keilwey, 174, b.
If the King make one his bailiff of his manor, to which manor waif, stray and leet are appendant, by patent, in this case the bailiff shall have the waif, stray and leet, because he occupies in right of the King, and he shall account to the King; and therefore this is an advantage of the King, for which reason the bailiff shall have all. 8 H. 7. 3.
Corporation having return of writs may make bailiff (to execute them) without writing, by parol. Moor, 552.
But a man may not make bailiff or steward for life, or in fee, without deed. 21 H. 7. 36.
Bailiff of a manor[30] for life, with fee or other profits for the execution of his office, cannot be discharged by a purchaser of the manor (contra if no fee or profit). Cro. Eliz. 859.
[30] Whatever is said of the bailiff of a manor is in general applicable to the bailiff of a liberty, every liberty being likewise a manor; though every manor be not a liberty.
By 4 E. 3. c. 9., no sheriff, bailiff of hundred, wapentake, or franchise, shall be henceforth if they have not land sufficient in the places where they are ministers whereof to answer the King and his people, in case any man will complain against them. Re-enacted by 5 E. 3. c. 4.
By 27 Eliz. c. 12. § 2., all persons that shall be admitted to or take upon them the executing of the office of an undersheriff, before he intermeddle with the use or exercise of the said office, shall receive and take a corporal oath upon the Holy Evangelists, before the justices of assise, or one of them, of the same circuit wherein that county is whereof he shall be undersheriff, or before the Custos Rotulorum, or two justices of the peace whereof one to be of the quorum of the said county, for and concerning the supremacy, in such manner and form as that oath is expressed and declared in one act of parliament made and ordained in the first year of the reign of our Sovereign Lady the Queen's Majesty[31], together with which oath he shall in like sort, before the same person or persons, receive and take another corporal oath as followeth, (that is to say) I A. B. shall not use or exercise the office of undersheriff corruptly during the time that I shall remain therein, neither shall or will accept, receive or take, by any colour, means or device whatsoever, or consent to the taking any manner of fee or reward of any person or persons for the impanelling or returning of any inquest, jury or tales, in any court of record for the Queen, or betwixt party and party, above two shillings or the value thereof, or such fees as are allowed and appointed for the same by the laws and statutes of this realm, but will, according to my power, truly and indifferently, with convenient speed, impanel all jurors, and return all such writ or writs touching the same as shall appertain to be done by my duty or office, during the time that I shall remain in the said office. So help me God.
By § 4., every bailiff of franchises, deputy and clerk of every sheriff and undersheriff, and every other person and persons which shall have authority, or take upon him to impanel or return any inquest, jury or tales, or to intermeddle with execution of process in any court of record, shall before he or they intermeddle with any further execution thereof, receive and take the oaths aforesaid corporally before the person or persons appointed by this act to minister the same, or before the head officer of the place (if it be a town corporate), changing only the words (the office of the undersheriff) contained in the oath expressed in this act, to such words as are convenient for the deputation, office, or place in which the party which taketh the oath is to be exercised in: and if any the said persons limited to take the oath aforesaid, do take upon him to impanel or return any inquest, jury or tales, or to intermeddle with the execution of process not having before taken the oaths aforesaid, every [such] person shall lose and forfeit the sum of forty pounds of current English money, the one moiety to be to the use of our Sovereign Lady the Queen, the other to him or them that will sue for the same.
[31] By 1 W. and M. stat. 1. c. 8., the oath of supremacy is taken away, and certain other oaths substituted in lieu thereof.
A bailiff may be steward of the same manor; for they may well stand both together. (29 H. 8. in Bro.) Cro. Jac. 178.
Bailiff of a liberty may well have a deputy. Cro. Jac. 242.[32]
Bailiff of lord may lease the land, and good, at will, for he is accountable, and debt lies for the lord. 2 E. 4. 4. Br. Bailie, 32. Lease, 34.
But if he reserve no rent the lease is void. 1 Roll. Rep. 258.
Bailiff of a manor may lease the piscary for years. 3 H. 4 12b. 1 Roll Abr. 339.
Bailiff cannot make lease of the manor, nor of parcel of the manor, without especial command for that purpose. M. 8 E. 4. 13. Fitz. Bayllyff. 3. Br. Bailie, 41.
A bailiff cannot by any usage make lease of the land of his master [for] an estate of freehold. 19 Ass. 9. 1 Roll. Abr. 339.
Bailiff of a manor may pay rents issuing out of the manor, and shall have allowance, but e contra where he pays debts of the lord due by contract or obligation, for this is out of his power. 4 H. 7. 14. Br. Bailie. 27.
Bailiff may justify cutting the great trees for repair of a house, or the covering of it as it was before, but not with more costly covering, and the same law is of amending pale, hedge, or such like, without command of his lord; but he cannot cover with tile what was before thatch, nor make new house, nor make pale where hedge was before, unless by special commandment of his master. 12 H. 7. 25. Br. Baillie, 42. & vide plenius Trespas. 288.
A bailiff may give licence to another to walk over the ground, for this is a trespass to the possession only, and the bailiff hath the disposition of the profits of the possession. (dub.) 1 Roll. Abr. 339.
A bailiff of a manor may himself or command another to take beasts damage feasant on the land, for he hath the care of all things within the manor. 1 Roll. Abr. 339.
He may do any thing for his masters benefit, but not to his prejudice without his assent. Cro. Jac. 178.
And therefore he cannot give seisin of rent, nor exchange the lords land. (41 E. 3. 26) Cro. Jac. 178.
Bailiff without special warrant from the steward cannot distrain for amerciament in a leet. Moore, 607. 574.
Popham said, that defendant as bailiff of the manor cannot distrain for amerciament by reason of his office without an especial warrant from the steward or lord, no more than a sheriff may levy amerciaments of B. R. without warrant. But Gawdy, e contra, that he may distrain for lawful amerciaments by reason of the office. Cro. Eliz. 698.
Bailiff cannot distrain ex officio for amerciaments. Cro. Eliz. 748.
Bailiff cannot distrain for amerciament by command of the lord of the manor, nor otherwise than by virtue of a precept directed to him by the steward of the court. Carth. 75.[33]
Bailiff of a franchise which hath Retorna Brevium cannot arrest a man without warrant to him made by the sheriff upon the writ in his hands. Keilwey, 86 b.[34]
Bailiff of a liberty may deliver his prisoner to the sheriff without more circumstance; as he may be discharged by his parol from keeping him any longer. Cro. Car. 447.[35]
Bailiff of a franchise cannot execute a process within his franchise, but by the precept of the sheriff. 29 E. 3. 42. Coron. 462. 2 Hale P. C. 68.[36]
Case, judgement by nil dicit, writ of inquiry of damages to the sheriff of Norfolk, who returns a mandavi ballivo, and sets down an inquisition before bailiff and 40l. damages. Upon writ of error, agreed by all the judges that the return was insufficient, for it was apparently untrue, and against law, because the warrant was directed to the sheriff himself to be executed in any part of the shire, and no venue contained in this inquest of office, as there is in other writs which intitles the bailiffs of liberties. But yet the court would not reverse the judgement, because there were divers of the like both in the K. B. and C. P. especially in Suffolk and Norfolk in later times. Hobart. 83.
Bailiff of a liberty may make an inquisition and extent upon an Elegit by warrant from the sheriff, and shall deliver the moiety, and not the jury. Cro. Car. 319.
Bailiff of a franchise [under 23 H. 6. c. 9.] has power to take a bail bond, and must take it to himself, and by the name of his office. Comyns. 380.
Bailiff of a franchise may take bond in sheriffs name. 3 Keble, 71. 117. 125.
Baily of hundred[37] may waive his franchise and arrest as sheriffs baily[38]. 3 Keble, 71.
Capias or distress against two, sheriff may serve as to one and bailiff as to the other. 31 H. 6. 13.
Where process issues, and the sheriff or bailiff is plaintiff, yet he may serve the process; and the sheriff is not bound to take conusance if the bailiff be plaintiff or not, for it may be another of the same name. 36 H. 6. 1. Br. Retorne de Briefe. 65.[39]
By 2 E. 3. c. 3. Lords of franchises, and their bailiffs in the same, shall have power to execute this act; which prohibits all men, except the Kings servants in his presence, and his ministers in executing his precepts, &c. from coming before the Kings justices, or other the Kings ministers doing their office, with force and arms, or bringing force in affray of the peace, or going or riding armed by night or by day in fairs, markets, or in the presence of the justices or other ministers, or in any part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison to the Kings pleasure.
By 4 H. 4. c. 19., no steward, bailiff or minister of lords of franchises which have return of writ shall be attorney in any plea within the franchise or bailiwick whereof he is such officer or minister.
[32] And such deputy it should seem ought to be made by writing (9 Rep. 51, b.). Though it is said 21 H. 7. 37. that the sheriff or a steward may make deputy without deed.
[33] It is an old rule of the duchy court that the bailiffs of the liberties of the duchy may distrain for fines and amerciaments for the King, and keep the same fifteen days, and if the party distrained refuse to pay his fine or amerciament, then the bailiff may sell the same, unless the party distrained will enter into bond to pay the said fine or amerciament at a day prefixed in the duchy court, or else shew good cause; but in this case there is no replevy to be granted against the King. And all this it seemeth the bailiff shall do ex officio. The fines and amerciaments within the liberties of the duchy are, however, usually levyed by writ of levari facias & capias out of the duchy court. And,
By Keble, precept to bailiff by nude parol is as effectual in court Baron as by writing, because the trial shall be all per pais and not by the record: for all is but matter in fait. Quod fuit concessum. 16 H. 7. 14.
[34] Per Levinz serjeant. In fact the sheriffs make no warrants to the bailiffs of liberties, but they only send the writ to them; and they execute it upon some general warrant, which they have from the sheriffs to execute all writs according to the agreement between the sheriffs and bailiffs. But (per curiam) this general warrant serves for a warrant to every particular case, for there must be a warrant in writing, because a command by parol to the bailiff of a liberty is not sufficient, 1 L. Ray. 190. Hammon v. Jermyn.
N. B. This assertion of the learned serjeant, though founded it is possible on some instance within his knowledge, can never be understood as true with respect to general practice.
[35] Bailiff of a liberty arrested the party, and delivered him to the sheriffs deputy, from whom he was rescued, and judgement for the plaintiff. Burgh v. Appleton, Sheriff of Essex, cited Cro. Jac. 242. See the Pleadings Declarations in the Upper Bench, 50. See also c. vi, (pl. 1.) c. ix (fo. 50.)
But in Boothman v. Earl of Surry, T. 27 G. 3. B. R. Defendant being bailiff of the liberty of Hallamshire, in the county of York took his prisoner to York jail and there delivered him into the custody of the sheriff, and upon action of debt brought against him for an escape, judgement for the plaintiff. N. B. Neither of the cases in Croke was cited by defendants council.
[36] In the Register are divers examples of original writs directed to bailiffs of liberties: as for instance; writs of right patent, writs de warrantia diei, writs of trespass, writs of supersedens, writs de cartis reddendis, writs de attornato pro custode, writs de attornato pro secta facienda, writs de statuto: The duchy court constantly issues writs of levari facias to bailiffs of the duchy liberties; in all these cases the bailiff is immediate officer to the court, and hath nothing to do with the sheriff, contrary to the argument in Skin. 413, and vide F. N. B. passim.
[37] This must be understood of a hundred in fee with retorna brevium in the hands of a private person, of which there are several instances; every other bailiff of hundred being a mere servant to the sheriff. And note, that, where a man is bailiff of fee in a county (i. e. a bailiff itinerant, who hath the execution only of writs within the county or hundred in fee) the sheriff shall not write to him as to bailiff of franchise, and for his act non omittas shall not issue, nor shall he make mention of him in his return. 27 Ass. p. 65. Br. Retorne de briefe, 69.
[38] The sheriff of a county made a warrant ballivis suis to arrest the body of such a man, and the bailiffs of the liberty return a rescous; and exception was taken to it, because the warrant was ballivis suis, and the return was made by those who were not his bailiffs; and it was adjudged good, for the liberty might be within his bailiwick, and so are all the precedents. March. 25.
[39] But the defendant himself shall never take advantage of a liberty, as if the bailiff of a liberty be defendant in any action, and process of Cap' or Feri Fiac' comes to the sheriff against him, the sheriff shall execute the process against him; for a liberty is always for the benefit of a stranger to the action. 5 Rep. 92.
Baily of a liberty must return his precept [to the sheriff]. 2 Keble, 838.
Where the sheriff returned capias quod mandavi ballivo de D. qui respondit quod cepit corpus, &c. and hath not the body at the day, the bailiff is bound to bring in the body, and not the sheriff, by Hill; but by Hank he ought to deliver it to the sheriff, and he to bring it in as officer immediate, as upon fieri facias the sheriff commands the bailiff to levy the money, he delivers it to the sheriff, so that the sheriff may have it at the day: contra Thirn, and agreed with Hill. 11 H. 4. 48 Br. Retorne de Briefe, 35[40].
By W. 1. (3 E. 1.) c. 15., such as be indicted of larceny, by inquests taken before sheriffs or bailiffs by their office, or of light suspicion, or for petty larceny which amounteth not above the value of 12d. if they be not guilty of other larceny before that time, or guilty of the receit of felons or of commandment or of force, or of aid of felony done, or guilty of some other trespass for which a man ought not to lose life or member, and a man appealed by the prover after the death of the prover, if they be not known common thieves, shall be let out by sufficient surety, whereof the sheriff will be answerable. And if sheriffs or others let go upon surety any that is not replevisable, if he be sheriff, constable, or other bailiff of fee, and who hath keeping of prisons, and thereof be attainted, he shall lose his fee and bailiwick for ever. And if undersheriff, &c. do it contrary to the will of his lord, he shall be imprisoned three years, and be fined at the Kings pleasure. And if any withhold prisoners replevisable after the prisoner hath offered sufficient surety he shall be in the grievous mercy of the King; and if he take reward for delivering him he shall render double to the prisoner, and moreover shall be in the grievous mercy of the King.
By 23 H. 6. c. 9. Sheriffs, undersheriffs, bailiffs of franchises, &c. shall let out of prison all manner of persons by them arrested or being in their custody by force of any writ, bill or warrant in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons be so let to bail or mainprise, to keep their days in such place as the said writs, bills or warrants shall require: Such person or persons which shall be in their ward by condemnation, execution, capias utlagat' or excommunicatum, surety of the peace, and all such persons which shall be committed to ward by special commandment of any justice, and vagabonds refusing to serve according to the form of the statute of labourers, only except. And that no sheriff, nor any of the officers or ministers aforesaid shall take or cause to be taken, or make any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor for any person which shall be in their ward by the course of the law, but by the name of their office, and upon condition written, that the said prisoners shall appear at the day contained in the said writ, bill or warrant, and in such places as the said writ, bill or warrant shall require. And if any of the said sheriffs, or other officers or ministers aforesaid, take any obligation in other form by colour of their offices, that it shall be void; and that he shall take no more for the making of any such obligation but 4d. (penalty, treble damages to the party grieved and 40l. half to the King and half to the party suing.) And justices of assises, of the bench and of the peace, to enquire, hear and determine, &c.
By 13 C. 2. st. 2. c. 2. § 2., no person or persons who shall happen to be arrested by any sheriff, undersheriff, coroner, steward, or bailiff of any franchise or liberty, &c. by force or colour of any writ, bill or process issuing out of his majestys courts of the Kings Bench and Common Pleas, or either of them, in which said writ, bill or process, the certainty and true cause of action is not expressed particularly, and for which the defendant or defendants in such writ, bill or process named, is and are bailable by the statute in that behalf made in the three and twentieth year of the reign of the late King Henry the Sixth, shall be forced or compelled to give security, or to enter into bond with sureties, for the appearances of such person or persons so arrested, at the day and place in the said writ, bill or process specifyed or contained in any penalty or sum or sums of money exceeding the sum of forty pounds to be conditioned for such appearances; and all sheriffs and other officers and ministers aforesaid, shall let to bail and deliver out of prison, and from their and every of their custodies respectively, all and every person and persons whatsoever, by them or any of them arrested upon any such writ, bill or process wherein the certainty and true cause of action is not particularly expressed, upon security in the sum of forty pounds and no more, given for appearance of such person or persons so arrested unto the said sheriff or officer aforesaid, according to the said statute in the said three and twentieth year of the reign of the said late King Henry the Sixth in that behalf made and provided.
By 32 G. 2. c. 28. § 1., no sheriff, undersheriff, bailiff, serjeant at mace, or other officer or minister whatsoever, shall convey or carry, or cause to be conveyed or carried any person or persons by him or them arrested, or being in his or their custody by virtue or colour of any action, writ, process or attachment to any tavern, alehouse or other public victualling or drinking house, or to the private house of any such officer or minister, or of any tenant or relation of his, without the free and voluntary consent of the person or persons so arrested or in custody; nor charge any such person or persons with any sum of money for any wine, beer, ale, victuals, tobacco or any other liquor or things whatsoever, save what he, she or they shall call for, of his, her or their own free accord; nor shall cause or procure him, her or them to call or pay for any such liquor or things, except what he, she or they shall particularly and freely ask for; nor shall demand, take or receive, or cause to be demanded, taken or received directly or indirectly, any other or greater sum or sums of money than is or shall be by law allowed to be taken or demanded for any arrest or taking, or for detaining or waiting till the person or persons so arrested or in custody shall have given an appearance or bail, as the case shall require, or agreed with the person or persons at whose suit or prosecution he, she or they shall be taken or arrested, or until he, she or they shall be sent to the proper gaol belonging to the county, riding, division, city, town or place where such arrest or taking shall be; nor shall exact or take any reward, gratuity or money for keeping the person or persons so arrested or in custody out of the gaol or prison; nor shall carry any such person to any gaol or prison within four and twenty hours from the time of such arrest, unless such person or persons so arrested shall refuse to be carried to some safe and convenient dwelling-house of his, her or their own nomination or appointment within a city, borough, corporation or market-town, in case such person or persons shall be there arrested; or within three miles from the place where such arrest shall be made, if the same shall be not the house of the person arrested, and be within the county, riding, division or liberty in which the person under arrest was arrested; and then and in any such case, it shall be lawful to and for any such sheriff or other officer or minister to convey or carry the person or persons so arrested and refusing to be carried to such safe and convenient dwelling-house as aforesaid, to such gaol or prison as he, she or they may be sent to by virtue of the action, writ or process against him, her or them.
By § 2., no sheriff, undersheriff, bailiff, serjeant at mace, or other officer or person, shall at any time or times hereafter take or receive any other or greater sum or sums for one or more nights lodging, or for a days diet, or other expences of any person or persons under arrest, on any writ, action, attachment, or process other than what shall be allowed as reasonable in such cases by some order or orders made by the justices of the peace at some general or quarter-sessions which shall be held for the county, riding, division, city, town or place where such arrest or taking shall be.
By § 3., every sheriff, undersheriff, and bailiff of any liberty, &c. shall deliver a printed copy of the several clauses contained in this act relating to bailiffs, serjeants and other officers and persons who shall be employed under them respectively to execute any writ, process or attachment, or who shall arrest any person on any action which shall be entered or otherwise within their respective sheriffwicks or jurisdictions, to every such bailiff, serjeant, officer, and other person, and shall make it part of the condition of every security or bond which shall be given or made to any such sheriff or undersheriff, or bailiff of any liberty, by any bailiff, serjeant at mace, or other officer or person who shall be employed or intrusted to execute any such writ or process as aforesaid under him, them or any of them, that every such bailiff, serjeant at mace, or officer and other person respectively, shall and will shew and deliver a copy of the said clauses to every person he shall arrest by virtue of any process, action, writ or attachment, or under any warrant made out thereon, and carry or go with to any public or other house where any liquor shall be sold, and also shall and will permit every such person who shall be so arrested, or any friend of him or her to read over the same clauses, before any liquor, meat or victuals shall be at any such public or other house called for or brought to any such person who shall be so under arrest there; and in case any bailiff, serjeant at mace, or other officer or person shall in any respect offend in the premises, every such offence besides the breach of the condition of every such security bond, shall be accounted and deemed a misdemeanor in the execution of the process or action on which any such person was arrested, and shall be punishable as such by virtue of this act.
By § 4., every sheriff, undersheriff, bailiff of any liberty, gaoler and keeper of any prison or gaol, and other person and persons, to whose custody or keeping any one shall be arrested, taken, committed or charged in execution, by virtue of any writ, process, or action, or attachment, shall permit and suffer every such person and persons, during his, her and their respective continuance under arrest or in custody or in execution for any debt, damages, costs or contempt, at his, her and their free will and pleasure, to send for or have brought to him, her or them, at seasonable times in the day-time, any beer, ale, victuals or other necessary food, from what place he, she or they shall think fit, or can have the same; and also to have and use such bedding, linen or other necessary things, as he, she or they shall have occasion for and think fit, or shall be supplied with during his, her or their continuance under any such arrest or commitment, without purloining or detaining the same, or any part thereof, or inforcing or requiring him, her or them to pay for the having or using thereof, or putting any manner of restraint or difficulty upon him, her or them, in the using thereof, or relating thereto; and no such prisoner or prisoners shall pay any thing in respect thereof to any such sheriff, undersheriff, bailiff of any liberty, gaoler, keeper, or other person as aforesaid.
By 3 H. 7. c. 3. every sheriff, bailiff of franchise, and every other person having authority or power of keeping of gaol or of prisoners for felony, shall certify the names of every such prisoner in their keeping, and of every prisoner to them committed, &c. at the next general gaol-delivery in every county or franchise where any such gaol or gaols have been or shall be, there to be kalendered before the justices of the deliverance of the same gaol, upon pain to forfeit for every default an hundred shillings.
By 1 R. 3. c. 3. no sheriff, &c. nor bailiff of franchise shall take or seize the goods of any person arrested or imprisoned for suspicion of felony before that the same person be convicted or attainted of such felony according to law, or else the same goods otherwise lawfully forfeited; upon pain to forfeit double the value of the goods so taken, to him that is so hurt in that behalf.
By W. 2. (13 E. 1.) c. 38. In one assise no more shall be summoned than four and twenty; and old men, above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that county, shall not be put in juries or petty assises. Nor shall any be put in assises or juries though they ought to be taken in their own county who have less tenement than to the value of twenty shillings by the year. And if such assises and juries ought to be taken out of the county, none shall be put in them who hath less tenement than to the value of forty shillings by the year, those except who are witnesses in charters or other writings whose presence is necessary, so long as they are able to travel. Nor ought this statute to be extended to great assises in which sometimes it behoveth to put knights not resident in the county by reason of the scarcity of knights, so long as they have tenement in the county.
By 21 E. 1. st. 1. no sheriff, &c. stewards or bailiffs of liberties shall put in any recognisances of juries, inquests, assises, and attaints, out of their proper counties to be made, any of their bailiwicks,[41] unless he have lands or tenements to the value of a hundred shillings by the year at least.
By the Articuli super chartas, 28 E. 1. c. 9. no sheriff nor bailiff shall put in inquests nor in juries more people or others, or in other manner than is ordained by statute and shall put in such inquests and juries the most near, most sufficient and least suspicious.
By 42 E. 3. c. 11. as to the return or answer of bailiffs of franchises they shall make their answer to the sheriffs six days before their session upon the pain of 20l. And in all manner of panels arrayed by sheriffs, or bailiffs within franchise, shall be put the most sufficient and worthy of faith and not suspected who have the best knowledge of the truth and [are] the most near.
By 11 H. 4. c. 9. no indictment shall be made but by inquest of the Kings lawful liege people returned by the sheriffs or bailiffs of franchises, without any denomination to the said sheriffs or bailiffs of franchises before made by any person of the names which by him should be impanelled, except it be by the officers of the said sheriffs or bailiffs sworn and known to make the same.[42]
By 2 H. 5. st. 1. c. 8. bailiffs of franchises shall cause to be impanelled sufficient persons [who have lands, &c. to the 'value' of 10l. a year, to inquire of riots before the Kings commissioners] upon pain to lose to the King 40l. in case such sufficient persons may be found within the same franchises.
By 2 H. 5. st. 2. c. 3. no person shall be admitted to pass in any inquest upon trial of the death of a man, nor in any inquest betwixt party and party in plea real nor in plea personal, whereof the debt or the damage declared amounts to 40 marks, if the same person have not lands or tenements of the yearly value of 40s. above the reprises thereof.
By 6 H. 6. c. 2. bailiffs of franchises shall make their returns or answer to the sheriffs in special assizes [i. e. as to panels between demandant and tenant] eight days before the session, upon pain of 40l.
By 8 H. 6. c. 9. when the justices or justice [of the peace] make enquiries [of forcible entries], they shall make their warrants and precepts to the sheriff of the county, commanding him on the Kings behalf to cause to come before them sufficient and indifferent persons dwelling about the lands entered, to enquire of such entries, of whom every one who shall be impanelled to enquire in this behalf shall have land or tenement of the annual value of 40s. at least above reprises. And that the sheriff return issues upon every of them at the day of the first precept returnable 20s. and at the second day 40s. and at the third time 100s. and at every day after double. And if any sheriff or bailiff within a franchise having return of the Kings writ be slack and make not execution duly of the said precepts to him directed to make such enquiries, he shall forfeit to the King 20l. for every default and moreover shall make fine and ransom to the King.
By 15 H. 6. c. 5. no sheriff, bailiff of franchise, or coroner in actions or writs of attaint of plea of land of the yearly value of 40s. or more, or action of detinue of deeds concerning lands or tenements of like value or more, or personal, whereof the judgement of the recovery shall extend to the sum of 40l. shall return or impanel in any inquisition or inquest, any persons but such as be inhabiting within his bailiwick, which have estate of fee simple, fee tail or freehold in lands and tenements of the yearly value of 20l. or more, nor shall return in the Kings court less issues in the said action of attaint than 40s. at the first writ of distress, and 100s. at the second writ of distress, and the double of every other writ of distress against the persons impaneled and returned to be sworn in the same actions (upon pain of 10l. to the King and 10l. to the plaintiffs. Remedy if there be not sufficient men in the franchise who have lands of the yearly value of 20l.)
By 23 H. 6. c. 9. sheriffs, undersheriffs, bailiffs of franchises, nor any other bailiff, shall return upon any writ or precept to them directed for returning any inquests or any panels thereupon to be made, any bailiffs, officers, or servants to any of the officers aforesaid, in any panel by them to be made; nor shall take any thing by colour of his office for the making of any return or panel, and for the copy of any panel but 4d.
By 27 Eliz. c. 6. § 1. in all cases where any jurors to be returned for trial of any issue joined in any of the Queens courts of Kings Bench, Common Pleas and the Exchequer, or before justices of assise ought to have estate of freehold in lands, &c. of the clear yearly value of 40s. the jurors shall every of them have estate of freehold in lands, &c. to the clear yearly value of 4l. at the least, (penalty on sheriff, &c. for returning that cannot dispend so much, 20l.)
By § 2. upon every first writ of habeas corpora or distringas with a nisi prius delivered of record to the sheriff or other minister or ministers to whom the making of the return shall appertain, [such sheriff, &c.] shall return in issues upon every person impanelled and returned upon any such writ at the least 10s. and at the second writ 20s. at the least, and at the third writ 30s. and upon every writ further double the issues last afore specified, until a full jury be sworn, or the process otherwise determined, upon pain of 5l.
By 27 Eliz. c. 7. no bailiff of any liberty, nor any his or their deputy or deputies, shall of himself return any juror, or deliver to the sheriff, his undersheriff, deputy or deputies, the names of any persons to be returned upon any panel or jury, without the true addition certified under his or their hands to the sheriff, of the place of dwelling or abode of every person so to be returned at the time of the said return, or within one year next before the said return, or some other addition by which the party returned may be known.
By 4 & 5 W. & M. c. 24. § 15. all jurors (other than strangers upon trials per medietatem linguæ) who are to be returned for trials of issues joined in any of the courts of Kings Bench, Common Pleas, or Exchequer, or before justices of assize, or nisi prius, oyer and terminer, gaol delivery, or general quarter-sessions of the peace in any county of the realm, shall have in their own names, or in trust for them within the same county, ten pounds by the year at least above reprizes, of freehold or copyhold lands or tenements, or of lands and tenements of ancient demesne, or in rents, in feesimple, feetail, or for the life of themselves or some other person; and that upon every writ of venire facias the sheriff, coroner, and other ministers, unto whom the making of the panel shall appertain, shall not return in any such panel any person unless he then have 10l. by the year at least as aforesaid, in the same county where the issue is to be tried; upon pain to forfeit for every person, &c. the sum of 5l.
By § 16. no sheriff or bailiff of any liberty or franchise, or any of their ministers, shall return any such person or persons as aforesaid, to have been summoned by them, unless such person and persons shall have been duly summoned, by the space of six days at least before the day on which they ought to make their appearance; nor shall directly or indirectly take money or other reward to excuse the appearance, of any juror, by any of them to be summoned or returned, upon pain to forfeit for every such offence the sum of 10l. [Continued by 7 & 8 W. 3. c. 32. 9 G. 1. c. 8. § 2. EXP.]
By 7 & 8 W. 3. c. 32. § 4. all constables, tything-men and headboroughs of towns in each county, or their deputies, shall yearly at the general quarter-sessions of the peace to be holden for each county, riding or division, in the week after the feast of St. Michael the arch-angel, upon the first day of the said sessions, or upon the first day that the said sessions shall be held by adjournment at any other particular division or place, return and give a true list in writing of the names and places of abode of all persons within the respective places for which they serve, qualifyed to serve upon juries, with their titles and additions, between the age of one and twenty and the age of 70 years, to the justices of the peace in open court; which said justices, or any two of them, at the said sessions, shall cause to be delivered a duplicate of the aforesaid returned list, by the clerks of the peace of every county or riding, to the sheriffs or their deputies, on or before the first day of January next following, and cause the said lists to be fairly entered into a book, by the clerk of the peace, to be by him provided and kept for that purpose, amongst the records of the said court of sessions; and no sheriff shall impanel or return any person or persons to try any of the issues joined in any of the courts [of K. B. C. P. or E.] or to be or serve in any jury at the assizes, sessions of Oyer and Terminer, gaol delivery, or sessions of the peace that shall not be named or mentioned in the said list.
By § 5. every summons of any person qualifyed to any of the aforesaid services shall be made by the sheriff, his officer or lawful deputy, six days before at the least, shewing to every person so summoned the warrant under the seal of the office wherein they are nominated and appointed to serve; and in case any juror so to be summoned be absent from the usual place of his habitation at the time of such summons, notice of such summons shall be given by leaving a note in writing, under the hand of such officer, containing the contents thereof, at the dwelling-house of such juror, with some person there inhabiting the same[43]. [Made perpetual by 6 G. 2. c. 37.]
By 4 Ann. c. 16. § 6. every Venire facias for the trial of any issue in any action or suit in any of her Majestys courts of record at Westminster shall be awarded of the body of the proper county where such issue is triable. But
By § 7. nothing in this act contained shall extend to any writ, declaration or suit of appeal of felony or murder, or to any indictment or presentment of treason, felony or murder or other matter, or to any process upon any of them or to any writ, bill, action or information upon any penal statute.[44]