By § 8. in any actions brought in any of her Majestys courts of record at Westminster, where it shall appear to the court that it will be proper and necessary that the jurors who are to try the issues in any such actions, should have the view of the messuages, lands or place in question, in order to their better understanding the evidence that will be given upon the trials of such issues, in every such case the respective courts in which such actions shall be depending, may order special writs of Distringas or Habeas corpora to issue, by which the sheriff or such other officer to whom the said writs shall be directed, shall be commanded to have six out of the first twelve of the jurors named in such writs, or some greater number of them, at the place in question some convenient time before the trial, who then and there shall have the matters in question shewn to them by two persons in the said writs named to be appointed by the court; and the said sheriff or other officer who is to execute the said writs shall by a special Retorn upon the same, certify that the view hath been had according to the command of the said writs.[45]
By 3 G. 2. c. 25. § 2. duplicates of the lists [made according to 7 & 8 W. 3. c. 32. 3 & 4 Ann. c. 18. and this act] when delivered in at the quarter sessions of the peace, and entered in 'the' book to be kept by the clerk of the peace for that purpose, shall, during the continuance of such quarter-sessions, or within ten days after, be delivered or transmitted by the clerk of the peace to the sheriff of each county, or his undersheriff, in order for his returning of juries out of the said lists; and such sheriff or undersheriff shall immediately take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically, with their additions and places of abode, in some book or books to be kept by him or them for that purpose.
By § 4. no persons shall be returned as jurors to serve on trials at any assizes or nisi prius, or at the great sessions, or at the sessions for the counties palatine, who have served within the space of one year before in the county of Rutland, or four years in the county of York, or of two years before in any other county, not being a county of a city or town[46].
By § 5. the sheriff, undersheriff, or other officer to whom the return of juries shall belong, shall from time to time enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and shall serve as jurors on trials at any assizes or nisi prius; or in the said courts of great sessions or sessions for the counties palatine, together with their additions and places of abode alphabetically, and also the times of their services; and every person so summoned, and attending or serving as aforesaid, shall (upon application by him made to such sheriff, undersheriff or other officer) have a certificate testifying such his attendance or service done, which certificate the said sheriff, &c. is to give without fee or reward; and the said book shall be transmitted by such sheriff, &c. to his successor from time to time.
By § 6. no sheriff, undersheriff, bailiff or other officer or person whatsoever shall directly or indirectly take or receive any money or other reward to excuse any person from serving or being summoned to serve on juries; and no bailiff or other officer appointed by any sheriff or undersheriff to summon juries, shall summon any person to serve thereon other than such whose name is specifyed in a mandate signed by such sheriff or undersheriff, and directed to such bailiff or other officer.
By § 8. every sheriff or other officer to whom the return of the Venire facias juratores, or other process for the trial of causes before justices of assize or nisi prius in any county in England shall belong, shall, upon his return of every such writ of Venire facias (unless in causes to be tried at bar, or in case where a special jury shall be struck by order or rule of court) annex a panel to the said writ, containing the christian [names] and surnames, additions and places of abode of a competent number of jurors named in such lists as qualified to serve on juries, the names of the same persons to be inserted in the panel annexed to every venire facias, for the trial of all issues at the same assizes in each county; which number of jurors shall not be less than 48 in any county, nor more than 72, without direction of the judges appointed to go the circuit and sit as judges of assize or nisi prius in such county, or one of them.
By § 18. any person or persons having an estate in possession in land, in their own right, of the yearly value of 20l. or upwards, over and above the reserved rent payable thereout, such lands being held by lease or leases for the absolute term of 500 years or more, or for 99 years or any other term determinable on one or more life or lives, the names of such persons shall be inserted in the respective lists as aforesaid, in order to their being inserted in the freeholders book[47].
By § 20. the sheriffs or other officers to whom the returning of juries doth or shall belong, for any county, city or place, shall not impanel or return any person or persons to serve on any jury for the trial of any capital offence, who at the time of such return would not be qualifyed in such county, city or place, to serve as jurors in civil causes for that purpose. [Made perpetual by 6 G. 2. c. 37. § 1.]
By 51 H. 3. st. 4. (De Districtione Scaccarii) When a sheriff or other the Kings bailiff doth take the beasts of another for the Kings debt, or any other cause, they to whom the beasts belong may feed them without disturbance so long as they be impounded, without giving any thing for their keeping. And the beasts, nor no other distress taken for the Kings debt, nor for any other cause be given, nor sold within fifteen days after the taking. And if any bring the tally of a payment made in the exchequer the distress shall cease. And if he bring the tally of any sheriff or bailiff of payment made to him of the thing demanded, and will find pledges to be at the exchequer at the next account, to do what shall be right, then the distress shall cease. But no man of religion nor other shall be distrained by his beasts that gain his land nor by his sheep, for the Kings debt or the debt of another, nor for any other cause, by the Kings bailiff nor by any other man, but until they can find another distress or other chattels sufficient whereof they may levy the debt or that is sufficient for the demand, except impounding of beasts when a man finds them doing damage according to the law and usage of the land. And that the distresses be reasonable after the amount of the debt or demand according to reason and not outrageous. Howbeit all sheriffs and bailiffs who have received the Kings debts of the summons of the exchequer, and have not acquitted the debtors thereof at their next account, shall be punished according to the statutes lately made.
By Stat. de Marleberge 52 H. 3. c. 21.[48] if the beasts of any man be taken and wrongfully withholden, the sheriff after complaint made to him thereof, may deliver them without let or gainsaying of him that took the said beasts, if they were taken out of liberties. And if they were taken within liberties and the bailiffs of the liberty will not deliver them, then the sheriff for default of those bailiffs shall cause them to be delivered.
By W. 1. c. 17. if any take the beasts of others and cause them to be driven to a castle or fortress[49], and there within the close of such castle or fortress detain them against gage and pledge, after the beasts shall be solemnly demanded by the sheriff or by the Kings bailiff, at the suit of the plaintiff, the sheriff or bailiff taking with him the power of his county or of his bailiwick[50] shall assay to make the replevin of the beasts from him that took them or from his lord, or from others of the men of his lord whatsoever they be, found in the place where the beasts were chased; and if any deforce him of the deliverance of the beasts, or that no man be found for the lord, or for him that took them, to answer and make the deliverance after the lord or taker shall be admonished thereof by the sheriff or bailiff, if he be in the country or near or there whereas he may be conveniently warned by the taker or any other of his, to make deliverance, if he were out of the country when the taking was, and did not cause the beasts to be delivered incontinent, that the King for the trespass and despite shall cause the said castle or fortress to be beaten down without recovery; and it is to wit, that where the sheriff ought to return the Kings writ to the bailiff of the lord of the castle or fortress or other to whom the return belongeth, if the bailiff of the franchise will not make deliverance after that the sheriff hath made his return unto him, then shall the sheriff do his office without further delay as is aforesaid and upon the aforesaid pain; and in like manner, deliverance shall be made by attachment of plaint made without writ, and upon the same pain.
By W. 1. c. 9. all generally are to be ready and appareled at the commandment and summons of sheriffs, and at the cry of the country to pursue and arrest felons, when need shall be, as well within franchises as without. And if default be found in the lord of the franchise, the King shall take the franchise to himself; and if the default be in the bailiff he shall be imprisoned one year, and after be grievously fined, and if he hath not whereof to be fined he shall be imprisoned two years: And if sheriffs, coroners, or other bailiffs, within franchise or without, conceal or consent or procure to conceal the felonies done in their bailiwicks, or that they will not attach or arrest the misdoers where they can, &c. and be attainted thereof, they shall be imprisoned for one year and after be grievously fined, and if they have not whereof to be fined, shall be imprisoned for three years.
By Stat. de Wynton 13 E. 1. st. 2. c. 6. sheriffs and bailiffs within franchises and without, higher or lower, and that have any bailiwick or forestry in fee or otherwise are to take good heed that they follow the cry with the country, and that they have horses and armour to do it.
If bailiffs of liberties have come at the hue levyed according to this statute is one of the articles of inquiry thereupon. 34 E. 1. st. 2.
By 12 E. 2. c. 5. sheriffs and other bailiffs who receive the Kings writs returnable in his court shall put their proper names with their returns, so that the court may know of whom they took such returns if need be.
By 5 E. 3. c. 14. if any man have suspicion of evil of roberdesmen, wastours and drawlatches, be it by night or day, they shall be incontinently arrested by the constables of the towns. And if they be arrested within franchises, they shall be delivered to the bailiffs of the franchises, and kept in prison till the coming of the justices assigned to deliver the gaols. And in the mean time the bailiffs of the franchises shall inquire of such arrests and at the coming of the justices return their inquests before them and that which they have found, and the causes of taking, with the bodies, and the justices shall proceed to the deliverance of those arrested according to the law. And in case bailiffs of franchises have not enquired of such arrests they shall be amerced.
By 22 H. 8. c. 5. § 5. the justices of peace of the shire, city or town corporate, within which any decayed bridges, or any part thereof, shall happen to be, shall have power to enquire, hear and determine all annoyances being within the limits of their commissions or authorities, and if the annoyance be presented, then to make process into every shire against such as owen to make or amend any such bridges. And all sheriffs and bailiffs of liberties and franchises shall truly serve and execute such process as shall come to their hands from the said justices of peace afore whom any presentment shall be had for any such annoyance, according to the tenour and effect of the said process to them directed, without favour, affection or corruption, upon pain to make such fine as shall be set upon them, or any of them, by the discretion of the said justices.
All lords that have franchises, or their bailiffs, shall attend upon the justices of assise and gaol delivery, upon pain of forfeiture of their franchises. 20 E. 4. 6. Br. Forfeiture de terres, &c. 115.
By 27 H. 8. c. 24. § 7. all stewards, bailiffs, and other ministers of any liberties or franchises which in times past have used or ought to attend upon the justices of assise, justices of gaol delivery, and justices of the peace at large in any county, shall be attendant to the justices of assise, justices of gaol delivery, and justices of peace of the same shires wherein such liberties and franchises be, and make due execution of all process to them to be directed, for ministration of justice within such liberties or franchises; and all such bailiffs or their deputies or deputy shall give their attendance and assistance upon the sheriff, together with the sheriff's bailiffs at all courts of gaol-delivery from time to time, for execution of prisoners according to justice.
It was an article of inquiry at the sessions if the bailiffs of liberties and franchises had duly executed their office, which consists in three points viz. In due execution of the precepts to them sent, and in due returns to be made to the sheriff of those precepts, and that they took nothing for doing their office, except the fees to them assigned and due by course of law. Fitz. Iust. P. fol. 28. (Crompton. 49.)
And this inquiry was by virtue of 20 E. 3. c. 6. whereby it is ordained, that the justices assigned to take assises shall have commissions sufficient to inquire in their sessions of sheriffs, escheators, bailiffs of franchises, and their under-ministers, &c. and of the gifts, rewards, and other profits, which the said ministers do take of the people to execute their office, and that which pertaineth to their office, and for making the array of panels, putting in the same suspect jurors and of evil fame, &c. and to punish all them which thereof shall be found guilty according as law and reason requireth, as well at the Kings suit as at the partys.
By stat. de Scac. 51 H. 3. st. 5. § 1. all sheriffs, fermors, bailiffs of franchises, and other who ought to come to the profer in the exchequer the morrow of St. Michael and the morrow of the clause of Easter, to pay their farms, rents and issues which belong to the King, shall come at the aforesaid terms, and there bring in full the aforesaid farms, rents and issues, and pay them into the exchequer. And if any fail to pay fully what he ought to pay as before is said, his body to remain without departing till he have paid or made agreement. And he who shall not come at the aforesaid terms shall be amerced according to the usages of the exchequer. And at the same terms the sheriffs and bailiffs shall bring their monies, and shall pay into the exchequer what they have received at the summons of the exchequer and the other debts of the King, and of all the things aforesaid, shall be ready and prepared to make account.
By § 2. all the bailiffs of franchises who ought to levy the debts of the King, and shall be answerable to the sheriffs at their commandment according to the estreats of the summons of the exchequer, shall come and answer sufficiently. And those who shall not, their bodies shall remain in custody of the sheriffs; and the sheriffs, for their defaults, shall send to levy the debts by their own bailiffs wherever they can, as they have used to do in time passed. And if the bailiffs do not come to answer at the day, the sheriffs shall let them know, the sheriffs shall enter into the franchise, and cause the debts to be levyed by their own bailiffs.
By § 7. when a sheriff or bailiff hath begun to account, no other shall be received to account until the first that is appointed hath fully accounted, and that the sum be received.
By § 9. about the feast of St. Margaret before the Exchequer be closed, they shall every year narrowly search and see if a sheriff or other bailiff who ought to have accounted that year have not. And if he be a sheriff, &c. And if he be another bailiff he shall be summoned or distrained that he come at a certain day to account, so that no account be suffered to sleep.
By 42 E. 3. c. 9. estreats shall not be doubled by the sheriffs, but the copy of the estreats wherein they touch the franchises of lords shall be delivered to the bailiffs of the franchises under the seal of the sheriff, and the same bailiffs shall yield their account in the Exchequer by the same copies and no other.
By 8 & 9 W. 3. c. 27. § 15. it shall and may be lawful for any person or persons, who have or hath any debt or debts, sum or sums of money due or owing to him from any person or persons who shall be and reside within the White-Friers, Savoy, Salisbury Court, Ram Alley, Mitre Court, Fullers Rents, Baldwins Gardens, Montague Close, or the Minories, Mint, Clink, or Deadmans Place, upon legal process taken out against such person or persons, to demand and require the sheriffs of London and Middlesex, head bailiff of the liberty of the Duchy of Lancaster, or high sheriff of the county of Surrey, or bailiff of the liberty of the borough of Southwark for the time being (as the case shall require, if the plaintiff think it requisite) or their respective deputy or deputies, officer or officers, to take and they are thereby enabled respectively to take the posse comitatus or such other power as to them shall seem requisite, and enter the said pretended privileged places, and to arrest, and in case of resistance or refusal to open the doors, to break open any door or doors to arrest such person or persons upon any mesne or other process, extent or execution, or to seize the goods of any such person or persons upon any execution or extent. (Penalty on the officer, for neglect or refusal to execute process, 100l. and on those who resist him 50l. each, commitment to gaol, and, on conviction, imprisonment and pillory, and for rescuing a prisoner 500l. and, on nonpayment within one month after judgement, transportation, and on inhabitants concealing any guilty of rescous, transportation, unless they pay the whole debt and costs.)
[40] See before, p. 23. In Yorkshire, when bailiff of the liberty has no prison of his own, the usage is for him to bring the body to the sheriff, who makes out an ordinary commitment to the county jail.
[41] De ballivis suis; the printed translation reads "any of their bailiffs;" but this is only one out of numberless instances of its gross and shameful inaccuracy.
[42] This act extends to inquests before coroners. Cro. Car. 134.
[43] By § 9. The inhabitants of Westminster are exempted from serving in any jury at the sessions before the justices of the peace for the county of Middlesex.
[44] This proviso, with respect to actions or informations upon penal statutes, is taken away by 24 G. 2. c. 18. § 3.
[45] By 3 & 4 Ann. c. 18. §§ 3, 4, particular directions are given relative to the return of jurors within the county of York. See also 1 Ann. st. 2. c. 13. § 3. and 7 & 8 W. 3. c. 32. §§ 7, 8.
[46] By 4 G. 2. c. 7. § 1. this clause not to extend to the county of Middlesex. And by § 2. no person shall be returned to serve as a juror at any session of nisi prius in the said county, who has been returned at any such session, in the two terms or vacations immediately preceding.
[47] By 4 G. 2. c. 7. all leaseholders in the county of Middlesex, upon leases where the improved value shall amount to 50l. or upward per annum, over and above all ground rents or other reservations, shall be liable and obliged to serve upon juries.
[48] That this statute was made in a parliamentary council at Westminster, in the forty-third year of this King, and not at Marleberge, in the fifty-second, is proved by Mr. Prynne in his Animadversions on 4 Inst. p. 190.
[49] And so it is if he that distrain chase the distress into any other house, park or other place of strength. 2 Inst. 193.
[50] Note, every man is bound by the common law to assist not only the sheriff in his office for the execution of the Kings writs, but also his baily that hath the sheriffs warrant, &c. and if they do it not, being required they shall be fined and imprisoned. 2 Inst. 195.
If the sheriff command the bailiff of the franchise, who arrests the defendant and sends him to the sheriff, if the sheriff return no writ, the bailiff shall not be charged, for the arrest of the bailiff of the franchise was lawful, and it shall be against reason that the non-return of the sheriff should prejudice him. 8 E. 4. 17. And see also 21 H. 7. 22. Keilwey 87. 89.
If the sheriff write to a bailiff of franchise in such form, Ballivo libertatis, &c. salutem, mandatum Domini regis recepi in hæc verba, and rehearse how the King commands by writ to take the body of such a one, where no writ comes to the sheriff, this is a good excuse to the bailiff of the franchise, and the party shall have his remedy against the sheriff. Dalton. Sheriff. 112.[51]
If upon a fieri facias against an administrator, the sheriff makes a warrant to the bailiff of a franchise to execute it, and afterward the bailiff is removed, and another bailiff elected, and afterward the old bailiff returns in his own name to the sheriff that the administrator had not any goods preterquam, &c. which is false, and afterward the sheriff makes the return accordingly to the court, yet no action for this false return lies against the old bailiff, for the return ought to be made in the name of the new bailiff, and so the sheriff has accepted a return as of a mere stranger, which is void; and he ought to take conusance of the right ministers of the law, and therefore the old bailiff for this false return is not punishable, but the sheriff. 1 Roll. Abr. 99.
Upon writ to the sheriff he first made warrant to bailiff of liberty, and after to his own bailiff, who arrested the party and suffered him to escape; and then sheriff returned mandavi ballivo; upon affidavit of fact sheriff was ordered to attend. And agreed action lay against sheriff for false return as non est invent. &c. and his amerciaments were estreated. 12 Mod. 311.
Action upon the case is maintainable against the sheriff for making the return of a bailiff who was not bailiff at the time of the return, and who had not executed the writ. Moore, 432.
Rule for the bailiff of the [liberty of the] duchy of Lancaster to return the sheriffs mandate on a fi. fa. discharged, the warrant having been directed to officers of plaintiffs nomination, and not to the officers of the bailiff of the [liberty of the] duchy. Barnes, 416.
An attachment of contempt issued forth against defendant, for not bringing Waldrons body into court, pursuant to a peremptory rule; and defendant having been examined upon interrogatories, it was referred to the prothonotary (as usual) to examine whether he had cleared himself of the contempt, or not. The prothonotary reported the matter specially; and the fact appeared to the court to be, that Waldron being confined in the Gatehouse prison, Westminster, for a criminal matter, was, by leave of a judge, charged there with a bailable action, in the following manner: A capias ad respondendum was directed to the sheriff of Middlesex, who made a mandate to the high bailiff of Westminster, and defendant was charged in custody therewith, and afterwards escaped from the keeper of the Gatehouse, which is the prison for the liberty of Westminster, to which prison the high bailiff is obliged to carry his prisoners within 24 hours after arrest. The high bailiff being called upon for a return of the mandate, returned cepi corpus, and that Waldron remained in the custody of the keeper of the Gatehouse. Both the chief bailiff and the keeper of the Gatehouse are appointed by, and hold their places under, the dean and chapter of Westminster, and both give security to the dean and chapter; but the keeper gives no security to the high bailiff. The Court were of opinion, that the high bailiff had cleared himself of the contempt, and ordered the attachment to be discharged. The high bailiff did every thing in his power to secure the prisoner, and ought not to be criminally punished. Respondeat superior extends to civil matters only. The prosecutor may bring his action for the escape. Barnes, 34.
If prisoner taken by a bailiff of a franchise escapes from the bailiff, the sheriff shall not have action upon the case against him, because he is not chargeable ouster, but the bailiff is only chargeable. 1 Roll. Abr. 98.
J. S. was taken in execution by Ca. Sa. by the bailiffs of a liberty in Suffolk, by warrant of the sheriff of the county. The bailiffs before the return of the Ca. Sa. brought him to Westminster in the county of Middlesex, and from thence, at the plaintiffs request, carried him to Lambeth in Surrey, where he remained under their custody till the day of the return of the writ, when they delivered him to the Kings Bench according to the writ; this, by the advice of all the justices, was adjudged no escape; for they thought that in whatever county in the way or out of the way to Westminster, the sheriff detains or brings the prisoner, if it be before the return of the writ it is no escape. Moore, 299. Burton [Boyton] v. Andrews. 3 Rep. 43. S. C.
If a bailiff of a manor pays the relief of his master to the lord to whom it is due, he shall be allowed this upon his account, though he had no warrant from his master so to do, because this is a casual thing of common course. (Contra, of a thing that is not casual of common course.) 41 E. 3. Account. 33.
If the Kings bailiff distrain for rent and rescous is made, the bailiff shall have the writ of rescous and not the King. F. N. B. 101.
If the sheriff send unto the bailiff of the liberty to levy fines and amercements for the King, and the bailiff distrain, and rescous is made, the lord of the liberty shall have a writ of rescous, for the rescous, the battery, and assault, and loss of service, all in one. F. N. B. 101.
If a man sue forth execution, and hath capias directed to the sheriff to arrest the party, and the sheriff make his warrant to the baily of the Kings liberty to arrest him, and he doth arrest him, and others rescue him from the bailiff, he who sued forth the execution shall have the writ of rescous; but yet it seems reasonable that the bailiff shall have a writ of rescous in such case, for some say he shall be chargeable, &c. F. N. B. 101.
A warrant was from the sheriff to the bailiff of the 'liberty' of Pomfret, who executed it, and rescue was made, and the bailiff brought the action against the rescuers to recover damages: and it was held that the bailiff may have this action in his own name, to recover damages for this. Clay. 149. Foster v. Legerd. (Viner, Rescous. A. 3.)
If bailiff of franchise return certain names to the sheriff, and the sheriff return other names, though the inquest returned by the sheriff shall be taken, yet bailiff shall have action against him. 30 Ass. p. 5. Br. Retorne de briefe. 73.
By 7 & 8 W. 3. c. 32. § 6. the return to the justices [directed by this act] shall be a good excuse and bar in law for the sheriff, for such summons and returns [as thereby directed]: and if any action or information shall be brought or prosecuted against any sheriff for such return, the said sheriff may plead the general issue, and give this act in evidence; and if the plaintiff be nonsuited, discontinue his action, or if a verdict be given for the defendant, or a noli prosequi be entered in any information, or a verdict pass for the defendant thereupon, the plaintiff or informer shall pay treble costs, to be awarded by the court in which such action or information was prosecuted, and levyed by usual process. Note, that although the word sheriff be alone made use of in this clause, yet it seemeth that the bailiff of the franchise shall in such case be intitled to the full benefit thereof.
[51] This case is printed by Mr. Dalton as an extract in French, and he refers to 10 H. 6. 37. But there is no such folio in that year. Mr. Dalton has certainly the appearance of having been a very industrious man, but the most gross inaccuracy is perhaps the least of his faults. He is therefore to be read and quoted (if at all) with great caution. And it might not be amiss if the same caution were extended to Master Kitchin, who deserves the title of an authority little better than Mr. Dalton.
By 12 E. 2. c. 5. if any sheriff or other bailiff in his returns leave out his name he shall be grievously amerced to the Kings use.
By 1 E. 3. st. 1. c. 5. against the false return of bailiffs of franchises, which have full return of writs, a man shall have averment, and recover as well against them as against the Kings sheriff, as well of too little issues returned as in other cases, so that it fall not in prejudice of the lords in imblemishment of their franchises. And all the punishment [shall] fall only upon the bailiffs by punishment of their bodies if they have not whereof to answer.
An action is maintainable against bailiff of a franchise who makes false return, and not against the sheriff. Moore, 432.
If the bailiff of a franchise makes a false return to the sheriff, and the sheriff returns it to the court accordingly, an action upon the case lyes against the bailiff, and not against the sheriff, for no default is in him. 1 Roll. Abr. 98. For the sheriff ought to accept the return of the bailiff if it be sufficient in law, and not to examine the truth of it. 1 Roll. Abr. 99.
Debt, the sheriff returned Capias, Quod mandavi ballivo, &c. qui respondit quod cepit corpus, and the person does not come, and the sheriff was amerced [Q. For what reason?] and writ awarded ad distringendum ballivum ad habendum corpus, &c. 47 E. 3. 25. Br. Retorne de briefe. 24. But yet
[In] Replevin [where] the sheriff returned the Capias, Quod mandavi ballivo, qui mihi respondit quod haberet corpus ejus hic ad hunc diem, and the body did not come, non omittas was awarded, and not distringas ballivum ad habendum corpus. 38 E. 3. 1. Br. Retorne de briefe. 44.
Case; for that upon a Capias directed to him against J. S. he made a warrant to a bailiff of a franchise to arrest the said J. S. which was done accordingly, and yet the sheriff returned non est inventus. Resolved per tot. cur. that the action well lay; and Anderson said, that if the sheriff had returned that he had sent to the bailiff of the liberty, who had given this answer, that he had arrested the body, it had been good, and the sheriff had been discharged, and the process should have issued against the bailiff of the liberty to bring in the body. Cro. Eliz. 729.
Where sheriff returned quod mandavi ballivo, &c. who is plaintiff, if the bailiff returns quod cepit corpus of the defendant, and hath him not at the day, &c. the bailiff shall be amerced, and not the sheriff; 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.
Capias, the sheriff returned mandavi ballivo, & quod ipse cepit corpus, sed illud hic habere non potest quia languidus est, &c. And defendants wife came and said that he is not sick but detained by the bailiff for extortion, and prayed remedy. Whereupon a writ issued to the bailiff to return the body, and to appear; and upon examination it was found that the party was not sick, whereupon the bailiff was committed to the Fleet to make fine, and the writ against the bailiff was subpoena 40l. to appear and bring the body, &c. 11 H. 6. 42. Br. Retorne de briefe. 123.
If a writ of execution comes to the sheriff, and he makes mandate to the bailiff of franchise, who takes him, and after suffers him to escape, action lyes against the bailiff of the franchise, and not against the sheriff. 5 E. 4. 1 b. 2. Brook, Escape 40. 1 Roll. Abr. 99. Noy. 27. Buller. N. P. 69.
If a man be in prison for execution in a county or in a liberty, the gaoler cannot bring him out of the county or liberty, unless in special case; and if he does it the prisoner may have action of false judgment, unless he has special authority, as by privy seal to be at Westminster, or the like. 30 H. 6. 6. Br. Escape, pl. 44.
If a warrant out of a Fieri facias to levy a debt at the suit of J. S. be directed to an under-bailiff of a liberty, and he by force thereof levys the debt, and afterwards conceals the writ, nor makes any certificate thereof, an action upon the case lyes against the under-bailiff, because he has made a personal tort. 1 Roll. Abr. 94.
If the bailiff of the franchise arrest the party, and do not return the warrant to the sheriff, action of false imprisonment lyes against him for the party. Keilwey, 86, b.[52]
Eyres sued a writ out of C. B. versus Smith, directed to the sheriff of York, who sent a warrant to Simpson, the bailiff of the liberty of Pomfret, who did not return the writ [warrant]: upon which he was amerced 50l. (viz. time after time) and that was estreated into the exchequer: afterwards Eyres and Smith agreed, and upon producing a certificate from the attorney for the plaintiff that the debt was satisfied, these amerciaments were discharged upon motion to the barons. Note, There ought to be a constat of the estreats, and, as the clerks said, the court uses not to discharge the amerciaments, but 'allows' you to compound them. 1 Salk. 54.
Rule made for an attachment of contempt against the bailiff of the liberty of Holderness, in the county of York, for not returning a mandate made by the sheriff, on an attachment of privilege, pursuant to a peremptory rule to return the same within six days notice, without any return of a mandavi ballivo, antecedent to the said peremptory rule; on an affidavit of service of that rule, and an affidavit of searching the sheriff's office, after the expiration of the six days, and that the mandate was not returned; all the officers present reporting this to be the practice. Barnes, 35.
Though by agreement between a bailiff of a franchise and his deputy, the deputy is restrained to serve process beyond such a sum, yet if he serves process of a greater sum without other warrant, and after levies the money, the bailiff shall be chargeable. Litt. 33. Viner, Actions [Case. Disceit.] F. c. 5.
If the bailiff of a franchise that hath a gaol, hath the custody of a felon, he is chargeable for his escape, and not the sheriff or his gaoler. 1 Hale P. C. 595.
By 27 H. 8. c. 24. § 9. the King, his heirs and successors, shall have all manner of fines, issues, amerciaments and forfeitures that shall be lost, forfeit or assessed by or upon any stewards, bailiffs or other ministers or officers of any franchises or liberties, for non-execution, mis-execution or insufficient returns of such writs, warrants, precepts or other process, which to them or to their deputies shall be directed, or for any contempt or other misdemeanor whatsoever it be, concerning their offices, in and for the due execution or administration of justice.
And the amerciaments for insufficient returns of writs or other process made by stewards or bailiffs of liberties or franchises, having returns of writs and execution of the same, shall be put and set upon the heads of such stewards or bailiffs, and not upon the sheriffs[53].
By § 14. every statute and act theretofore made and being in force against sheriffs, their undersheriffs, bailiffs or other ministers, for making or returning of panels or juries, or for due execution or serving of any writs or other process, or for taking of fees, or for reformation of extortions, or for any other thing or things concerning their offices, and all pains and penalties contained in every such statute shall be extended to all stewards, bailiffs and other ministers and officers of liberties and franchises having returns of writs and executions thereof, in like manner, form and condition as they extend to the sheriffs, their undersheriffs, bailiffs or other ministers. (But by § 15. this article not to be prejudicial to any steward, bailiffs of franchises or to their deputies or clerks for exercising and occupying their offices above one year.)
By 27 Eliz. c. 6. § 3. if any sheriff, undersheriff, bailiff or other minister do return any person or persons to be summoned to appear in any jury, wherein he shall for default of his appearance lose or forfeit any issues, where in truth such person shall not be lawfully summoned, the same sheriff, &c. shall forfeit, lose and pay unto the said person or persons so returned double the value of the issues by such juror or jurors lost or forfeited for his [or their] default of appearance.
By § 4. if any sheriff, &c. or any bailiff of franchise, shall receive, take, or have by himself or by any other, any sum of money, reward or any other profit, directly or indirectly, or do take any promise, make any agreement, or assent to have any sum of money, reward or other profit, directly or indirectly, of any person or persons, for the sparing, not warning, or not returning of any person to be sworn as juror, for the trial of any issue joined or to be joined in any of the Queens Majestys courts [of K. B. C. P. or E.], or before any justices, every sheriff, &c. or bailiff of franchise so offending, to forfeit for every such offence the sum of 5l. (half to the Queen, and half to the person suing.)