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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 PRACTICAL TREATISE 
 
 THE OFFICE OF SHERIFF: 
 
 COMPRISING THE WHOLE OF 
 
 THE DUTIES, REMUNERATION, AND LIABILITIES 
 OF SHERIFFS, 
 
 EXECUTION AND RETURN OF WRITS, 
 
 THE ELECTION OF KNIGHTS OF THE SHIRE. 
 
 SECOND EDITION. 
 
 By WILLIAM HENRY WATSON, Esq. 
 
 - OF Lincoln's inn, one of her majesty's counsel. 
 
 LONDON: 
 S. SWEET; A.MAXWELL 3^ SON; V. & R. STEVENS & G.S.NORTON, 
 
 Ua\D ISooftsellcTS antr ^ublisi&ers: 
 
 HODGES & SiMITH, GRAFTON STREET, DUBLIN. 
 
 1848.
 
 
 LONDON : 
 
 rUlNTED BY C. ROWORTH AND SONS, 
 BELL YARD, TEMPLE BAR.
 
 
 ADVERTISEMENT 
 
 V 
 
 ^ TO THE SECOND EDITION. 
 
 The extensive changes that have taken place in the law 
 relating to the execution and return of writs, and otherwise 
 in connection with the Office and Duties of the Sheriff, 
 since the publication of this Treatise, have rendered the 
 preparation of a new edition almost as laborious as the 
 original compilation of the Work, and have necessarily 
 added greatly to its bulk. A considerable portion of the 
 Volume was prepared for press by J. S. Willes, Esq. ; 
 the remainder has been completed, and the whole revised, 
 by W. N. Welsby, Esq. The order of subjects adopted 
 in the First Edition has been preserved, and a Chapter is 
 added on the subject of the Writ of Trial. It is hoped 
 that the great object of a law book — a correct statement 
 of the law as it now exists — has been attained, without 
 unnecessary diffuseness or iteration. 
 
 Temple, 
 October, 1848. 
 
 a2 
 
 1^5^S3
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 The Author feels no little anxiety in offering the present 
 work, on the Office and Duty of Sheriff, to the Profession 
 at large ; conscious that many imperfections and inaccu- 
 racies must necessarily be found in a work of this nature. 
 
 The Author has attempted to combine the law respecting 
 the office of Sheriff with practical directions for the guidance 
 of Under-sheriffs, How far this has been accomplished 
 the Author leaves to the Profession. The division adopted 
 in the present work differs from that of any other publica- 
 tion on the same subject. In the first three chapters the 
 nature of the office, and the oaths and ceremonies necessary 
 on the first appointment of the Sheriff, are noticed ; the 
 fourth chapter treats of the duties of bailiffs of franchises ; 
 the fifth chapter enters fully into the duties and powers of 
 the Sheriff in the execution and return of writs in general ; 
 and the subsequent chapters embrace the Sheriff's duty on 
 particular writs, classing under the head of each the manner 
 in which it is to be executed ; how returned ; the fees pay- 
 able in respect thereof; and the proceedings against the 
 Sheriff for not, or for improperly, executing or returning 
 the writ. Thus, by reference to each head, the manner in 
 which a writ is to be executed and returned will be easily 
 found. In Chap. II., Sect. 2, the Sheriff will find in what 
 manner the office is to be transferred ; in Chap. III., Sect. 1, 
 he will find what deputies and officers should be appointed
 
 VI PREFACE. 
 
 on his entrance into office, and when and in what manner 
 the appointments should be made. The Forms of Warrants 
 and Returns are collected in the Appendix ; in the corre- 
 sponding chapter of which are arranged all the forms 
 belonging to each chapter of the book. Those forms the 
 Author has obtained from gentlemen who have served the 
 office of Under-sheriff, and they have been carefully com- 
 pared with analogous forms in other works. To the gen- 
 tlemen who have furnished him with these forms, and with 
 practical information on this subject, the Author acknow- 
 ledges his obligations. 
 
 2, Lamb's Buildings, Temple, 
 February/ 1, 1827.
 
 TABLE OF CONTENTS. 
 
 CHAP. I. 
 
 OF THE OFFICE AND MODE OF ELECTING SHERIFFS. 
 
 Sect. 1.— Of the Antiquity of the Office— Of the Dignity and Duties of the 
 Office — Who are qualified for, or disqualified from the Office— Of 
 the Punishment for refusing the Office — Residence — Offices which 
 a Sheriff cannot hold — Of the Duration and Determination of the 
 Office Page 1—9 
 
 Sect. 2. — Of the mode of electing Sheriffs for Counties in general— For 
 Durham — Wales — Westmoreland — Cities and Towns— Of the 
 Sheriffs of London and Middlesex 9—14 
 
 CHAP. II. 
 
 OF THE WARRANT OF APPOINTMENT AND OATHS OF THE NEW SHERIFF ; 
 AND THE TRANSFER OF THE OFFICE. 
 
 Sect. 1. — The Sheriff's Warrant of Appointment 15 — 17 
 
 Sect. 2.— The Sheriff's Oath of Office, how and before whom taken— The 
 Declaration and Oaths at Sessions, when and how to be taken 1 7 — 21 
 Sect. 3.— Of the Transfer of the Office— Of the Assignment of Writs ; of 
 Prisoners — When the Authority of the Sheriff ceases— Of the 
 Liabilities of the old Sheriff after expiration of his Office — Ap- 
 portionment of Fees between old and new Sheriff, on a levari 
 facias 21 — 26 
 
 CHAP. in. 
 
 OF THE sheriff's OFFICERS; THEIR APPOINTMENT, POWER, 
 AND DUTIES. 
 
 Sect. 1.— The Sheriff not to let his Bailiwick to Farm— What Officers he 
 should appoint — Offices not to be sold — Replevin Clerks— Clerk 
 of the County Court— Deputies in the Courts at Westminster 
 
 27—32 
 
 Sect. 2.— The Under-sheriff— Not to be an Attorney, &c.— His Oath, his 
 Power, and Duties — His Office, how determined— His Liabilities — 
 His Securities — Duties on entering his Office 32 — 39 
 
 Sect. 3.— Bailiffs— Perpetual Bailiffs— Bound Bailiffs- Special Bailiffs- 
 Authority and Duties of Bailiffs ; when the Sheriff is responsible 
 for the acts of his Bailiffs, their security to the Sheriff .... 39—47
 
 CONTENTS. 
 
 Sect. 4.— Gaoler — Sherifif's Jurisdiction over Gaols — Sheriff liable for de- 
 fault of Gaoler — Gaoler's security to the Sheriff — Regulations 
 resj)ecting Gaols — Bonds to Gaoler — Of his Fees . . Page 48 — 53 
 
 CHAP. IV. 
 
 OF BAILIFFS OF FRANCHISES. 
 
 Of the Nature of a Liberty — What Writs the Bailiff may execute in his 
 Liberty — Bailiff's Qualification— To keep a Gaol, attend Assizes, 
 &c.— Of the Sheriff 's Mandate — The Bailiff's Power and Duties — 
 His Liabilities 54—62 
 
 CHAP. V. 
 
 OF THE EXECUTION AND RETURN OF WRITS IN GENERAL. 
 
 Sect. 1. — Of the Direction of Writs — Sheriff bound to execute, and justified 
 in the execution of, all Writs directed to him 63 — 70 
 
 Sect. 2. — How, where, and when the Sheriff may execute Writs — Warrants 
 to Officers — When Officer may break open Doors — Raising the 
 Posse Comitatus — Where Writ may be executed ; when ; Sunday 
 
 70—81 
 
 Sect. 3. — Rule to return the Writ — When granted — The Rule— Attach- 
 ment, when and how granted for not returning the Writ . . 81 — 87 
 
 Sect. 4.— The Return — By whom made — Form of the Return — Must be 
 certain — Must be a complete Answer — Must not falsify the Re- 
 cord — How aided — When amended — When conclusive — Particular 
 Returns ; Tarde ; Languidus; Rescue — Rescuers, how punished — 
 Mandavi Ballivo 87—99 
 
 Sect. 5. — Sheriff's Fees for executing and returning Writs— Poundage on 
 Fi. Fa. ; on Ca. Sa. ; on Extents ; on Elegit — Habere Facias Pos- 
 sessionem — How recovered 99 — 117 
 
 Sect. 6. — Actions against the Sheriff— At the suit of the Plaintiff.— At the 
 suit of the Defendant and third persons— Justification by the She- 
 riff, &c.— Evidence 117—124 
 
 CHAP. VL 
 
 OF THE sheriff's DUTY ON A BAILABLE CAPIAS. 
 
 Sect. 1.— Of the Arrest; when, where, how made — Detainer— Sheriff's 
 Fees on an Arrest— Privilege from Arrest, when to be allowed by 
 the Sheriff— Peers, Ambassadors, Attorneys, Witnesses, Bank- 
 rupts, Seamen, and Soldiers 125 — 144 
 
 Sect. 2. — Sheriff's Duty after the Arrest— How the Defendant should be 
 treated after the Arrest— Deposit in lieu of Bail— The Bail-Bond ; 
 Sheriff obliged to discharge Defendant on giving a Bail-Bond — In 
 what form, to whom, for what amount to be made— When the She- 
 riff must discharge the Defendant 144—157
 
 CONTENTS. IX 
 
 Sect. 3.— Proceedings on the Bail-Bond — Assignment of the Bail-Bond ; 
 where, by whom, and how made— Action on the Bail-Bond ; in 
 what Court to be brought ; when Proceedings may be stayed on 
 the Bail-Bond Page 157— 167 
 
 Sect. 4. — Proceedings against the Sheriff — Rule to return the Writ — 
 Return — Rule to bring in the Body, object thereof, at what time 
 obtained, how complied with — Attachment for not bringing in the 
 Body, how obtained ; when set aside for irregularity ; regular, on 
 what terms set aside— To what extent the SheriflFis liable on the 
 Attachment — His Remedy over 167 — 179 
 
 Sect. 5.— Actions for Escape, &c. — In what cases maintainable — The De- 
 claration — Pleadings— Evidence — Damages 179 — 188 
 
 CHAP. VII. 
 
 CAPIAS AD SATISFACIENDUM. 
 
 Sect. 1.— In what cases it lies— The Arrest— The Sheriff's Duty after the 
 Arrest — Poundage — Return — Prisoner, how discharged . 189 — 199 
 
 Sect. 2. — Escape — What shall be said to be an Escape — When the Sheriff 
 shall be excused — Voluntary and negligent — Of the Action for an 
 Escape; by whom, against whom it lies — Declaration — Pleas — 
 Evidence — Action over, by the Sheriff for his Indemnity, where 
 the Defendant has escaped 200 — 217 
 
 CHAP. VIII. 
 
 THE sheriff's DUTY IN THE EXECUTION AND RETURN OF PROCESS 
 OF OUTLAWRY. 
 
 Sect. 1. — Of the Exigent and Writ of Proclamation — In what cases and in 
 what manner a party may proceed to Outlawry — Exigent, how 
 executed— Return, how made — Writ of Proclamations — On Out- 
 lawry in Civil Actions — On Indictments ; when required, how 
 made — Sheriff 's Return; Form of; into what Office made; Fees 
 thereon 218—227 
 
 Sect.2.— Of the General and Special Writs of Capias utlagatum, how exe- 
 cuted—Bail, how taken on — Special Capias utlagatum, how exe- 
 cuted — Form of the Inquisition — Sheriff's Return — Preference 
 between several Writs of Capias utlagatum — Fees thereon — Action 
 against the Sheriff— Restitution 227—234' 
 
 CHAP. IX. 
 
 HABEAS CORPUS. 
 
 In what cases it lies— How executed — Return thereto— Penalty for not 
 obeying the Writ — Actions for false Return to, Escape, &c. — She- 
 riff' 's Fees 235—240
 
 X CONTENTS. 
 
 CHAP. X. 
 
 FIEHI FACIAS. 
 
 Sect. 1. — IIow, when, and where Goods may be seized under a Fieri Facias 
 — Property in Goods, from what time bound — Poundage — To what 
 amount the Levy may be made— Priority in case of several Exe- 
 cutions between several Subjects, and between the Subject and the 
 Crown Page 242—249 
 
 Sfct. 2. — What things may and what may not be seized under a Fi. Fa. — 
 Leases for Years ; Fixtures ; Growing Crops, and Agricultural 
 Produce, how to be sold 249 — 255 
 
 Sect. 3. — What shall be said to be the Goods of Defendant, to be liable to 
 be taken — Equitable Interest — Partnership Property — Goods be- 
 longing to Defendant as Executor, or in riglit of his Wife — Goods 
 sold bon^ fide, and where the Defendant has become Bankrupt 
 
 255—268 
 
 Sect. 4. — Goods seized, when and how to be sold — Venditioni exponas — 
 Distringas nuper vicecomitem — When Goods may be released, 
 Defendant giving Security for or paying Debt and Costs — She- 
 riff's Property in Goods seized — Effect of Levy 268 — 274 
 
 Sect. 5. — Landlord's Claim for Rent, under the Statute 8 Anne, c. 14.. 
 
 274—279 
 
 Sect. 6. — Sheriff, how protected, where there are adverse claims on Goods 
 seized — Interpleader 279 — 289 
 
 Sect. 7. — Sheriff's Return — Nulla Bona — Fieri Feci— Goods remaining in 
 hands for want of buyers — Supersedeas ; Rescue ; Return to Writs 
 against Executors 289 — 295 
 
 Sect. 8. — Actions against the Sheriff, for the Money levied ; for a false Re- 
 turn; for a wrongful Seizure — Actions by the Sheriff. ..295 — 304 
 
 CHAP. XI. 
 
 Of the Nature of the Writ — What may be taken under it— How executed — 
 Lands and Goods, how delivered — Return— Poundage — Sheriff's 
 Liability— Restitution 305—316 
 
 CHAP. xn. 
 
 HABERE FACIAS POSSESSIONEM. 
 
 Of the Writ— How executed— Sheriff's Duty in case of Disturbance— Re- 
 turn — Fees thereon — Actions against the Sheriff in respect 
 thereof 317—322
 
 CONTENTS. XI 
 
 CHAP. XIII. 
 
 WRIT OF INQUIRY. 
 
 Of the Writ — Inquest, at what time, and before whom, to be held — Inquest, 
 Proceedings on — Evidence — Damages, how assessed — Return — 
 Fees— Sheriff's Liability Page 323—330 
 
 CHAP. XIV. 
 
 WRIT OF TRIAL. 
 
 Of the Writ — When and how executed — Return — New Trial, &c. — Judg- 
 ment and Execution — Sheriff's Fees 331 — 335 
 
 CHAP. XV. 
 
 OP THE EXECUTION OF PROCESS IN REAL ACTIONS. 
 
 Sect. 1. — Of Mesne Process — Summons — Proclamation — Attachment and 
 
 Distress infinite — Grand Cape 336 — 343 
 
 Sect. 2.— Of the Writ of View— Trial— Grand Assize 344—346 
 
 Sect. 3. — Execution — Habere facias seisinam 347 — 348 
 
 CHAP. XVI. 
 
 OF THE EXCHEQUER WRITS. 
 
 Sect. 1. — Of the Nature of the Sheriff's Office as Collector of the Revenue 
 of the Crown — Of the ordinary Exchequer Process, Great Roll ; 
 the Summons of the Pipe ; Summons of the Green Wax ; Fi. Fa. 
 against Clergymen — Distringas, against Collectors of Taxes, against 
 Parishes, against Accountants — Fi. Fa. on Port Bonds.. 349 — 355 
 
 Sect. 2.— Of the Writ of Extent— Of the Nature and Form of the Writ — 
 How executed — Arrest of the Defendant — Seizure of Defendant's 
 Goods — Goods from what time bound, priority between the Crown 
 and the Subject, Goods distrained, &c. — Priority between several 
 Extents — When the Crown has a specific Lien — Lands, how seized 
 — From what time bound — Debts, how taken — Of the holding the 
 Inquisition — Sheriff's Return, Liabilities, &c 355 — 372 
 
 Sect. 3. — Poundage on Crown Writs — Statutes regulating the Poundage — 
 Decisions thereon 372 — 376 
 
 Sect. 4. — Of the Sheriff's Accounts — Apposals — Accounts — Allowance to 
 Sheriffs on passing their Accounts 376 — 384
 
 XII CONTENTS. 
 
 CHAP. XVII. 
 
 OF JURIES, AND OF THE SHERIF1''S DUTY AT SESSIONS AND ASSIZES. 
 
 Sect. 1. — Of Juries, who are qualified to serve on — List of Persons qua- 
 lified, how made out — Venire facias, Sheriff"'s Duty thereon — Spe- 
 cial Juries, how struck and summoned — Penalty on Sheriff" for 
 
 breach of Duty Page 385—390 
 
 Sect. 2.— Sheriff^'s Duty at Assizes 390—392 
 
 Sect. 3.— Sheriff's Duty at Sessions 392—398 
 
 CHAP. XVIII. 
 
 OF THE SHERIFF'S COURTS, AND PROCEEDINGS THEREIN. 
 
 Sect. 1.— The Sherift''s Torne 399—401 
 
 Sect. 2.— The County Court 402—413 
 
 Sect. 3. — Of the Sheriff's Duty and Liabilities in gi-anting Replevins.. .. 
 
 413—423 
 
 CHAP. XIX. 
 
 OF THE sheriff's DUTY IN THE ELECTION OF MEMBERS OF 
 PARLIAMENT. 
 
 Sect. L — OftheAVrit for the Election of Members — Proclamation — Poll 
 Clerks— Erection of Booths, &c.— Of the Candidates . . 424—432 
 
 Sect. 2. — Of the Poll, how taken — Oaths administered to the Electors — 
 Poll, how closed — Scrutiny— Sheriff's Return 432 — 438 
 
 Sect. 3.— Liabilities of Sheriff for Misbehaviour — Action by Sheriff for 
 Expenses 438 — 443 
 
 CHAP. XX. 
 
 OF THE sheriff's DUTY IN THE ELECTION OF CORONERS 444—452 
 
 CHAP. XXI. 
 
 OF THE sheriff's DUTY IN EXECUTING WRITS OF ATTACHMENT, SCIRE 
 
 FACIAS, &c 453 — 454
 
 CONTENTS. 
 
 APPENDIX. 
 
 Chap. II. Sect. 2. — Schedule of the Oaths to be taken by the Sheriff, 
 and which Schedule is annexed to the Return 
 
 of the Dedimus Page 455 
 
 Oath of Office of Sheriffs of Wales 455 
 
 Recognizance of Sheriffs of Wales 455 
 
 Sect. 3. — Letter of Attorney to receive the Gaol 457 
 
 Letter of Attorney to deliver the Gaol 458 
 
 Chap. III. Sect. L — Letter of Attorney, appointing Replevin Clerks 458 
 Letter of Attorney, appointing Deputies to hold 
 
 the County Court 458 
 
 Sect. 2. — Appointment of Under-Sheriff 459 
 
 Form of Covenants between Under-Sheriff and 
 
 Sheriff 459 
 
 Bond of Indemnity from Under- Sheriff's Deputy 
 
 or Agent, to the Under-Sheriff, where the 
 
 Under-Sheriff appoints a Deputy 461 
 
 Sect. 3.— Bond of Indemnity from Bailiffs and their 
 
 Sureties 463 
 
 Bailiff's Oath 464 
 
 Indorsement on a Writ, on the Appointment of 
 
 Special Bailiff 465 
 
 Warrant to Special Bailiff 465 
 
 Sect. 4. — Security from Gaoler to the Sheriff 465 
 
 A Charge to the Gaoler against a Prisoner .... 467 
 
 Gaoler's Receipt upon the same 467 
 
 Liberate in pursuance of an Authority from the 
 
 Plaintiff, or his Attorney 467 
 
 A Discharge to a Gaoler on a Supersedeas .... 468 
 
 Chap. IV.— Form of a Sheriff's Mandate to the Bailiff of a Liberty . . 468 
 Return of the Bailiff of a Liberty 468 
 
 Chap. V. — Warrant to raise the Posse Comitatus 468 
 
 Chap. VI. Sect. 1. — Warrant on a Bailable Capias 469 
 
 Mandate to Sheriff of Lancashire .^ 469 
 
 Sect. 2.— Bail Bond 469 
 
 Assignment of Bail- Bond 470 
 
 Sect. 3.— Returns to Bailable Writs of Capias 470 — 472
 
 XIV CONTENTS OF APPENDIX. 
 
 Chap. VII. Sect. 1.— Warrant on Ca. Sa Page 473 
 
 Returns to Ca. Sa 473, 474 
 
 Chap. VIII. Sect. 1.— Returns to a Writ of Exigent 474, 475 
 
 Return to Writ of Proclamation 475 
 
 Sect. 2. — Return and Inquisition on Capias utlagatum.475, 476 
 
 Chap. IX. — Return to a Writ of Habeas Corpus 476 
 
 W'arrant to Gaoler and Bailiff, to convey Prisoner on 
 Habeas Corpus 477 
 
 Chap. X. Sect. L— Warrant on Fi. Fa 477 
 
 Sect. 4. — Bill of Sale from the Sheriff, of Goods taken on 
 
 aFi. Fa 477 
 
 Sect. 6. — Condition of a Bond, indemnifying the Sheriff for 
 
 selling Goods on a Fi. Fa 478 
 
 Condition of a Bond of Indemnity, forabandoning 
 
 Goods and returning Nulla Bona 478 
 
 Sect. 7.— Returns to Fi. Fa 479-482 
 
 Chap. XI. — Warrant to take the Defendant's Goods on an Elegit .... 482 
 
 Charge to the Jury 483 
 
 Juryman's Oath 483 
 
 Return and Inquisition on an Elegit 483 
 
 Chap. XII. — Warrant on Hab. fac. poss 485 
 
 Returns to a Writ of Hab. fac. poss 485, 486 
 
 Chap. XIII. — Deputation to take an Inquisition 486 
 
 Oaths to be administered to the Jury and Witnesses on a 
 
 Writ of Inquiry 486 
 
 Return and Inquisition on a Writ of Inquiry ........ 487 
 
 Warrant on a Writ of Ad quod damnum 487 
 
 Return and Inquisition on a Wi-it of Ad quod damnum 487 
 
 Chap. XIV. — Precept for summoning Jury on Writ of Trial 488 
 
 Oaths to Jury and Witnesses 488 
 
 Certificate to stay Judgment 489 
 
 Postea 489 
 
 Chap. XV. Sect. 1.— Writ of Quare Impedit 489 
 
 Warrant on a Writ of Quare Impedit 489 
 
 Summons thereon 490 
 
 Returns to Quare Impedit 490 
 
 Warrant on Pone after Quare Impedit 491 
 
 Distringas, and Returns thereto 491, 492 
 
 Chap. XVI. Sect. 1.— Warrant to levy on the Great Roll 492 
 
 Warrant on Summons of the Pipe 492 
 
 Warrant on Summons of the Green Wax .... 493 
 Return and Inquisition on the Great Roll .... 493 
 Returns to the other Exchequer Processes. . . . 494
 
 CONTENTS OF APPENDIX. XV 
 
 Chap. XVI. Sect. 1. — continued. 
 
 Returns to Exchequer Distringases .... Page 495 
 
 Warrant on Exchequer Sci. Fa 496 
 
 Summons and Returns thereon 496 
 
 Sect. 2.— Warrant on an Extent 497 
 
 Form of Subpcena duces tecum, to attend Inqui- 
 sition on an Extent 497 
 
 Returns to Writ of Extent 498 
 
 Inquisition on an Extent, with various findings 499 
 Warrant on a Venditioni Exponas 505 
 
 Chap. XVII. Sect. 1— The Jury Acts, 6 Geo. 4, c. 50 505 
 
 5& 6 Will. 4, c. 76, ss. 121, 123 528 
 
 2 & 3 Vict. c. 71, s. 4 529 
 
 9 & 10 Vict. c. 95, ss. 70, 72, 73 529 
 
 Sect. 2. — Warrant to summon Nisi Prius Jury 530 
 
 Warrant to summon Grand Jury 531 
 
 Warrant to summon Special Jury on a View 531 
 
 Return to Assize Precept 531 
 
 Panels to be annexed thereto 531, 532 
 
 Return to the Assize Venire 532 
 
 Return to Habeas Corpus Jurat, when a view 
 
 is directed 532 
 
 Return to Distringas Jurat, on a View .... 533 
 
 Same, where Jury appeared 533 
 
 Letter of Attorney to carry Sentence of Death 
 
 into Execution 533 
 
 Sect. 3. — Warrant to summons a Sessions' Jury .... 533 
 
 Return to Sessions' Precept 534 
 
 Panels to be annexed thereto 534 
 
 Chap. XVIII. Sect. 2. — Form of Admission in Declaration in County 
 
 Court, to reduce the Damages below 40s. . 534 
 
 Warrant upon a Justicies 534 
 
 Summons upon a Warrant on a Justicies . . 535 
 
 A County Court Execution 535 
 
 A County Court Subpoena 535 
 
 Return to Re. Fa. Lo 535 
 
 Schedule annexed to Return to Re. Fa. Lo. . 536 
 Transfer of Plaints depending in County 
 
 Court 536 
 
 Sect. 3.— Warrant in Replevin 536 
 
 Summons thereon 537 
 
 Form of Replevin Bond 537 
 
 Assignment of Replevin Bond 537 
 
 Precept in Nature of Withernam 538
 
 XVI CONTENTS OF APPENDIX. 
 
 Chap. XVIII. Sect, ti—continued. 
 
 Warrant on a Writ de Retorno Habendo..Page 538 
 
 Return to Retorno Ilabendo 539 
 
 WaiTant on Writ of Second Deliverance. . . . 539 
 
 Returns to Writ of Second Deliverance 540 
 
 Bond to be taken on Writ of Second Deliver- 
 ance 540 
 
 Return to Writ of Inquiry in Replevin ., .. 540 
 
 Chap. XIX. Sect. 1. — Precept to the Returning Officer of a Borough 
 
 to elect Members 541 
 
 Indorsement to be made thereon 541 
 
 Sect. 2. —Bribery Oath 542 
 
 Declaration of Qualification by Candidate . . 542 
 
 Certificate thereof 542 
 
 Return of the Election of Members for a 
 County 543 
 
 Oaths of Allegiance, Supremacy, and Abjura- 
 tion 543, 544 
 
 Declaration in the Nature of the Oath of 
 Abjuration, to be taken by Quakers 544 
 
 Roman Catholic's Oath 545 
 
 Chap. XX. —Notice of the Time for the Election of a Coroner 546 
 
 Return to a Writ de Coronatore Eligendo 546 
 
 Chap. XXI. — Warrant on an Exchequer Attachment 546 
 
 Warrant on an Attachment out of Chancery, with Procla- 
 mations 546 
 
 Returns to an Attachment 547 
 
 Writ ne Exeat Regno 547 
 
 Warrant thereon 548 
 
 Returns to a Writ ne Exeat Regno 548 
 
 Warrant on a Writ de Excommunicato Capiendo 549 
 
 INDEX 551
 
 THE 
 
 OFFICE AND DUTIES OF SHERIFFS. 
 
 CHAPTER I. 
 
 OF THE OFFICE AND MODE OF ELECTING SHERIFFS. 
 
 Sect. I. — Of the Antiquity of the Office. — Of the Dignity and 
 Duties of the Office. — Who are qualified for, or dis- 
 qualified from, the Office. — Of the Punishment for 
 refusing the Office. — Residence. — Offices which a 
 Sheriff cannot hold. — Of the Duration and Determi- 
 nation of the Office. 
 II. — Of the Mode of electing Sheriffs for Counties in 
 general. — For Durham. — Wales. — Westmoreland. — 
 Cities and Torvns. — Of the Sheriffs of London and 
 Middlesex. 
 
 Section I. 
 Of the Antiquity and Dignity of the Office of Sheriff. 
 
 The sheriff is an officer of great antiquity in this kingdom, his The antiquity 
 
 name being derived from two Saxon words, seyre, that is, a shire 
 
 or county, and reve, keeper, bailiff, or guardian. And it is said 
 
 by Camden (a), that sheriffs were first appointed by king Alfred, 
 
 on his division of England into counties. But Lord Coke seems 
 
 to think that the office is of still greater antiquity, indeed that 
 
 the sheriffs, shires, and counties, existed in the time of the 
 
 Romans in this country, and before, and that under the Romans 
 
 the sheriff was the officer of the consul, and the Romans called 
 
 that consulatum, which we call comitatum (i). He is certainly 
 
 (a) Page 156. (&) Co. Litt. 168a; Dalt. Sheriff, 5. 
 
 B
 
 2 OF THE ANTIQUITY AND DIGNITY, &C. 
 
 CHAP. I. Styled in Latin vice comes; as being the deputy of the earl, or 
 
 Illl_ comes ; to whom the custody of the shire is said to have been 
 
 committed, at the first division of this kingdom into counties. 
 And it seems that earls, by reason of their high employments, 
 and attendance upon the king, being unable to follow all the 
 business of the county, were delivered of all that burthen, and 
 only enjoyed the honour as they now do, and that the labour 
 devolved upon the sheriff; "so that now the sheriff doth all the 
 king's business in the county ; and although the sheriff is still 
 called vice comes, yet all he doth and all his authority is imme- 
 diately from and under the king, and not from and under the 
 earl (c)." 
 The dignity At this day the sheriff has all the authority, for the adminis- 
 
 and duties of . . „ . . , . „ • i i 
 
 the office. tration and execution oi justice (excepting so tar as it has been 
 abridged by statutes since that time), which the earl or comes 
 had ; the queen committing to the sheriff the charge or custody 
 of the county ; commisimus vobis custodiam comilatus nostri de, 
 
 Conservator &c. (d). His ofRce is fourfold. Ist, He is the keeper of the 
 
 ot the peace. , . '■ 
 
 queen's peace within the county, both by the common law and 
 by special commission ; and as such he is the first man in the 
 county, and superior to any nobleman therein, during his 
 office (c). He may apprehend, and commit to prison, all persons 
 who break the peace, or attempt to break it ; and may bind any 
 one in a recognizance to keep the queen's peace. He may, and 
 is bound, ex officio, to pursue and take all traitors, murderers, 
 felons, and rioters ; he hath also the custody and safe-keeping 
 of the county gaol ; he is to defend the same against rioters, 
 and for this purpose, as well as for taking rioters and others 
 breaking the peace, and also for attending the queen to the war 
 when enemies come ; he may command all the people of his 
 county to attend him, which is called the j^f^sse 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 imprisonment(/). 
 
 (c) Dah. 2 ; Co. Litt. 168 a. 2ndly. Vitce- legis; he is, after long 
 
 (d) Co. Lilt. 168; 9 Rep. 49; suits, chargeable to make execution, 
 Dalt. 2; 1 Bl. Coin. 339. This which is the life and fruit of the law. 
 charge is said by Lord Coke to be 3rdly. Vitce reipublica: ; he is lyiinci- 
 threefold. 1st. Vitivjiistilice ; for no palis coiisei-vatoi- pads within the 
 suit begins, and no process is served, countie, which is the life of the corn- 
 but by the sheriff; also he is to return monwealth, vita reipublica: pax. 
 indiffbrent juries for the trial of men's (e) 1 Roll. Hep. 337. 
 
 lives, liberties, lands, goods, 6cc. (/) Stat. 2 Hen. 5, c. 8.
 
 OF THE DUTIES AND POWER OF THE SHERIFF. 
 
 2dly, In his ministerial capacity, the sheriff is bound to exe- chap. i. 
 cute within his county or baihwick, all process issuing from the __^Ilil 
 
 queens superior courts of lustice. On bailable process, he is to The minuie- 
 execute the writ, to arrest, and to take bail; when the cause iiie sheriff in 
 comes to trial, he must summon and return the jury; and when w'ru'a'.""^ 
 it is determined, he must execute the judgment of the court. 
 In criminal matters, he also arrests and imprisons ; he returns 
 the jury; he has the custody of the delinquent, and he executes 
 the sentence of the court, though it extend to death itself (g). 
 
 The sheriff is also bound to execute the precepts of commis- 
 sioners of sewers, of coroners, and verderers, and, as will be 
 more fully detailed hereafter, to attend the judges of the supe- 
 rior courts of law on their circuits, and execute all their lawful 
 commands. 
 
 He has also the custody of the gaol of his county, and this Tiie custody 
 duty cannot be transferred by the crown to any other officer (/^). ° ^^°^' 
 
 Sdly, As the queen's bailiff, he must seize into the queen's To collect the 
 hands all lands devolved to the crown by attainder or escheat ; mies"&c?^^' 
 must levy all fines and forfeitures ; must seize and keep all 
 waifs, wrecks, estrays, and the like, unless they be granted to 
 some subject ; and must also collect the queen's rents within his 
 bailiwick, if commanded by process out of the Exchequer (i). 
 
 4thly, In his judicial capacity he is to hear and determine all His judicial 
 causes of 40*. value and under by plaint, or to any amount by coumyco'nrts: 
 rvrit ofjusiicies, in his county court ; and also to make, to hear, mem'beis^of 
 and determine replevins, and other suits in his county court. P*'''*'"«"'' 
 Also, in the course of the suit it may become his duty to pre- 
 side as judge at the execution of writs of trial, or of inquiry of 
 damages. He formerly held pleas of the crown in his torne ; 
 but by Magna Charta, he, together with the constable, coroner, 
 and certain other officers of the crown, are forbidden to hold 
 any pleas of the crown. He is likewise to decide the elections 
 of knights of the shire (subject to the control of the House of 
 Commons), of coroners, and of verderers ; and to return such 
 as he shall determine to be elected. 
 
 The sheriff hath no power or authority out of his county (F) ; Authority 
 
 (g) 1 Bla. Com, 444 ; see R. v. (k) Le Count de Northumberland 
 
 Antrobus, 2 Ad. & El. 788. v. Le Count de Devon, 2 Roll. Rep. 
 
 (h) Mytton's case, 4 Rep. 32 b. 163 : Plowd. 37 a. 
 (i) Dalt. c. 9, c. 5. 
 
 B 2 
 
 coextensive 
 uf his county.
 
 4 QUALIFICATIONS AND DISABILITIES 
 
 CHAP. I. excepting where lie is commanded by a writ of habeas corpus to 
 ^^^^' '• convey a prisoner out of his county : and then, if the sheriff 
 convey his prisoner through several counties, yet the prisoner is 
 in the custody of the sheriff in every one of those counties {m) ; 
 and excepting also, where a prisoner of his own wrong, without 
 the consent of the sheriff or gaoler, make an escape, and fly into 
 another county, the sheriff or his officers, upon fresh pursuit, 
 may take him again in another county (n). The sheriff, how- 
 ever, may do mere ministerial acts out of his county, as making 
 a panel or any return (o), or assigning a bail bond (p) ; but it is 
 said, that if the sheriff make a panel or a return when he is out 
 of England, it is void ; for he is an officer only in England (y). 
 Qnaiificaiinn Because the office of sheriff is of high trust and confidence, 
 
 for the office ... •, -r-»i .. i i ii_ 
 
 ot sheriff. " it IS meet, says Dalton, " that such persons as be chosen 
 thereunto be men of good sufficiency, and such as may attend 
 it, lest otherwise the king be much indamaged, and his people 
 be disinherited and oppressed ; and for that purpose, the sta- 
 tutes made 9 Edw. 2, de vice comitibus ; 2 Edw. 3, c. 4 ; 4 Edw. 3, 
 c. 9 ; and 5 Edw. 3, c. 4, have ordained, that no man shall be 
 sheriff in any county except he have sufficient lands within the 
 same county where he shall be sheriff, whereof to answer the 
 king and his people, in case any man shall complain against 
 him." At the present day the most opident and respectable 
 commoners in each county fill the office of sheriff (r). By 
 Stat. 9 Edw. 2, Lincoln, it is enacted " that no steward or bailiff 
 to any great lord be made sheriff, (except he be put forth of 
 service), but such persons only shall be appointed as may wholly 
 attend to the king and his people." 
 Who are By the , Stat. 1 Rich. 2, c. 11, (which does not extend to the 
 
 drsqualified sheriffs of a town corporate, although a county in itself (s),) it 
 tbe"offi7e!'°^ is Ordained, that none that hath been sheriff of any county by 
 an whole year, shall be within three years next ensuing chosen 
 
 {m) Plowd. 37 a. hoc officium potentissimi sccpenumero 
 
 (n) Dalt. 23 ; Plowd. 37 a. totius regni prnceres, barones, comites, 
 
 (o) Dalt. 22. duces, interdum el regiim Jilii. — Spel. 
 
 {p) Greo;son v. Heather, 2 Lord Glos. Vicecom. Bishops also were 
 
 Raym. 1455 ; 2 Stra. 727, S. C. not unfrequently sheriffs. Richard, 
 
 (q) 9 Htn. 4, 1 ; Bro. Officer, 7; Duke of Gloucester (afterwards Rich- 
 
 Dalt. 22. ard 3) was sheriff of Cumberland five 
 
 (r) " In ancient times this office years together." 1 Hla. Com. 346, 
 
 was frequently executed by the nobi- note. Christian's edition. 
 
 lity, and persons of the highest rank (s) R. v. Haythorne, 5 B. & C. 
 
 in the kingdom. Eligebanlur olim ad 529, n.
 
 FOR THE OFFICE OF SHERIFF. 
 
 again, or put in the same office of sberifT, if there be other suf- 
 ficient in the said county of possessions and goods to answer to - 
 the king and to his people" (0 ; and by the stat. 23 Hen. 6, 
 c. 8, whosoever shall take upon him to have or occupy the office 
 of sheriff by any grant or patent thereafter to be made for years, 
 life, in fee, or in tail, shall stand for ever and at all times disabled 
 to be or bear the office of sheriff within any county of England, 
 and liable to forfeit 200/. As the queen has an interest in every 
 subject, and a right to his service, it is a general rule that no 
 man can be exempt from the office of sheriff but by act of par- 
 liament, or letters patent (i<) : but if a man is disabled by judg- 
 ment or process of law, as imprisonment for debt, to bear an 
 office, he is excused, 7iam judicium redditur in invitum (a:) ; yet 
 where he may remove the disability, as in case of excommuni- 
 cation, he shall take no advantage of his disability {y). Another 
 exception exists in the case of practising barristers and attornies, 
 who are exempt by reason of the incompatibility of the office 
 with their professional duties (2). And the same it would seem 
 in the case of members of parliament (a). By 2 Geo. 2, c. 20, 
 a militia officer while on service is exempt. 
 
 The question formerly agitated, whether or not persons elected 
 sheriffs in corporate towns were exempt from serving the office 
 of sheriff by reason of their being dissenters, or of not having 
 taken the sacrament as required by the stat. 13 Car. 2, c. 2, 
 s. 1 (b), and for many years settled by a decision of the House 
 of Lords, where it was decided that a dissenter, or person not 
 complying with the provisions of the 13 Car. 2, was wholly dis- 
 abled from serving the office (c), was finally set at rest by the 
 statute of 9 Geo. 4, c. 17, (explained by 5 & 6 Will. 4, c. 28,) 
 
 (t) By the stat. 9 Geo. 1, c. 3, s. 9, (2) Mayor of Norwich v. Berry, 4 
 
 the sheriff of Norwich, on payment of Burr. 21 14. 
 
 a fine of 300/., is exempted from serv- (a) Resolution of the House of 
 
 ing the ofSce : but by paying the fine Commons, 7th January, 1689 ; I Roe 
 
 it was held that he was only exempt on Elections, 161. 
 
 for one yenr ; Rex ?;.Wnodrow, 2 T. R. {!>) Rex v. Larwood, 1 Salk. 1 67 ; 
 
 731. See also Rex ti. Bower, 2 Dowl. Lord Raym. 29, S. C. ; 4 iVIod. 269 ; 
 
 & Ry.842 ; 1 Bar. & Ciess. 585, S. C. Eyre, J. dmentiente, with whom the 
 
 («) Earl of Shrewsbury's case, 9 Lord Keeper is said to have coincided 
 
 Rep. 46; JMoore, 111; Pelham's in opinion ; Mayor, &c. of Guildford, 
 
 case, Saville, 43. v. Clarke. 2 Vent. 247. 
 
 (j) Rex V. Larwood, I Salk. 169 ; (c) Harrison v. Evans, 2 Burn's 
 
 1 Ld. Raym. 29 ; 4 Mod. 273, S. C. Ecc. L. 185 ; 6 Bro. P. C. 181 ; cit. 
 
 (v) The Attorney-General v. Read, in Cowp. 535, ib. 393 n. ; Bac. Abr. 
 
 2 Mod. 299. SherifF(B.) 
 
 CHAP. I. 
 SECT. I.
 
 now LONG THE OFFICE CONTINUES. 
 
 criAP. 1. 
 
 SECT. I. 
 
 How punish- 
 ed lor refus- 
 ing (he ollice 
 
 He need not 
 r<!side in his 
 count>'. 
 
 He cannot be 
 a magistrate 
 or a member 
 for tlie 
 county. 
 
 Not to serve 
 the oflTice 
 above one 
 year. 
 
 which makes dissenters eligible to the office. And since 5 & 
 6 Will. 4, c. 28, a Jew has been one of the sheriffs of London. 
 
 If a person refused to take upon him the office of sheriff, 
 when appointed, it was usual to punish him in the Star Chamber; 
 but now he may be proceeded against by indictment or informa- 
 tion in the Queen's Bench (d). Also, if he refuse to take the 
 oaths enjoined hiin, or officiate in his office before he is thus 
 qualified, that court, which hath a general superintendency over 
 all officers and ministers of justice, will grant an information 
 against him. It has been held, that a refusal to take the oaths 
 amounts to a refusal of the office (e). By particular statutes, or 
 the bye laws of cities and towns, (which, being counties, have 
 sheriffs,) certain pecuniary penalties are inflicted upon persons 
 refusing to take upon them the office when elected, and those 
 penalties are recoverable by action ( /). 
 
 By the statute of 4 Hen. 4, c. 7, it was ordained, " that 
 every sheriff of England shall abide in proper person within his 
 bailiwick for the time that he should be such officer;" and this 
 formed part of the oath of both the sheriffs of England and 
 Wales. But it would appear that this statute is repealed in this 
 respect by the statute of 3 Geo. 1, c. 15, ss. 18, 20 ; for by the 
 oath of office directed by that act to be taken, it is not required 
 of either the sheriffs of England or Wales to swear that they 
 will be resident in their counties. 
 
 By the statute of 1 Mary, st. 2, c. 8, s. 2, sheriffs are dis- 
 qualified from acting as justices of the peace during the con- 
 tinuance of their office, and all acts done by them as justices of 
 the peace are void. And it is holden, that the sheriff cannot be 
 elected a knight of the shire for the county of which he is 
 sheriff(^). 
 
 In former times, the sheriffs held their offices for a term of 
 years, of the king's grant, and great oppressions having resulted 
 therefrom, it was ordained and established, by divers acts of 
 parliament, " that no sheriff (/«), under-sheriff(j), or sheriff's 
 clerk, shall tarry or abide in his office, or shall occupy the said 
 office above one year, upon pain of forfeiting 200/. yearly as 
 
 (d) Dalt. 15; Rex v. Woodrow, 2 
 T. R. 731. 
 
 (e) Starr v. The Mayor of Exeter, 
 3 Lev. 116; 2 Show. 158, S. C. ; 
 Carth. 307. 
 
 (/) See post, tit. Sheriffs of Lon- 
 
 don, &c. 
 
 (g) 4 Inst. 48; Litt. Rep. 326. 
 
 (h) 14 Edw. 3, Stat. 1, c. 7; 28 
 Edw. 3, c. 7. 
 
 (0 42 Edw. 3, c. 9; 23 lieu. 6, 
 C.8.
 
 HOW LONG THE OFFICE CONTINUES. t 
 
 long as he occupieth the office :" and every pardon made for chap. i. 
 
 such oflence, occupation, or forfeiture shall be void ; and all ^ L_!_ 
 
 letters patent (k) made to occupy such office for term of years, 
 for term of life, in fee simple or in fee tail, shall be void, any 
 words or clause of non obstante put into such patent notwith- 
 standing, and whosoever shall presume to take upon him to 
 occupy the office of sheriff above one year, by virtue of such 
 grant or patent, shall be disabled for ever after to be sheriff 
 within any county of England ; and any man, who will, may 
 sue for the said sum of 2001. so forfeited against such sheriff, 
 under-sheriff, or sheriff's clerk, in any action of debt, in his 
 own name, and the king shall have the one moiety of all that 
 which is recovered, and he that sueth shall have the other 
 moiety (/). By the statute of the 6 Hen. 8, c. 18, all persons 
 inheritable to the office of sheriff in any county, and the sheriff, 
 under-sheriff, and other officers in London and Bristol, are ex- 
 cepted out of these statutes. And by other statutes (m) it is 
 enacted, that every old sheriff of every county shall have full 
 power, and naay occupy his office, as also do and execute every 
 other thing to his office of a sheriff appertaining, during the 
 terms of St. Michael and Hilary, (after the year that their office 
 is ended,) unless before the same time he be lawfully dis- 
 charged. 
 
 The sheriff holds his office only during the queen's pleasure, office when 
 although he cannot remain therein above one year ; and there- termineci. 
 fore, during his year,' his office may be determined by the 
 crown (n). The office is not determined by the sheriff be- 
 coming a peer, but he continues sheriff notwithstanding (o). 
 But the office of sheriff cannot be determined, nor any part 
 thereof, by the crown, until a new sheriff is appointed. Although 
 the queen may determine the office at her pleasure, yet she 
 cannot determine it in part, as for one town or one hundred, 
 
 (k) It is clear that the king might sheriff could not be continued in office 
 
 have dispensed with these statutes; for more than one year at this day; 
 
 but by the Bill of Rights, in this re- indeed, a few lines before Mr. Justice 
 
 spect the prerogative was abrogated. Blackstone had shown how the pre- 
 
 Mr. Justice Blackstone, in his Com- rogative had been abridged by tlie Bill 
 
 mentaries, vol. i. p. 342, says, that of Rights. 2 Hawk. P. C. c. 37. 
 it seems that the sheriff may be ap- (i) 23 Hen. 6,c. 8 ; 6 Hen. 6, c. 18. 
 
 pointed durante bene placitn ; and so (?«) 12 Edw. 4, c. 1 ; 17 Edw. 4, 
 
 was the form of the royal writ, as given c. 6 ; Cromp. 208 b. 
 in Dalton, and of the warrant of ap- (n) Finch, 11. 
 
 pointmentunder 3 & 4 Will. 4, c. 99, (o) Sir Lewis Mordaunt's case. 
 
 Schedule, post, p. 16; and see 4 Cro. Eliz. 12. 
 Rep. 32. It is apprehended that a
 
 O HOW LONG THE OFFICE CONTINUES. 
 
 CHAP. I. or any other part ; neither can she abridge the sheriff of any 
 . ^^^' ^' — thing incident or belonging to his office, for the office is entire 
 and indivisible (/)). The office formerly determined by the 
 death of the king or queen, but now, by the stat. 1 Anne, s. 1, 
 c. 8, all officers appointed by the preceding king or queen may 
 hold their offices for six months, unless sooner displaced by the 
 successor. And also by the death of the sheriff himself the 
 office is determined ; and, formerly, between the death of the 
 old sheriff and the appointment of the new, the prisoners were 
 in the custody of the law, and not of the under- sheriff; and the 
 party had no remedy for an escape of a prisoner during that 
 time (q) ; but now, by the stat. of 3 Geo. 1, c. 15, s. 8, where the 
 sheriff dies before the determination of his office, it is enacted, 
 " that the under-sheriff, or deputy sheriff, by him appointed, 
 shall, nevertheless, continue in his office, and shall execute the 
 same, and all things belonging thereunto, in the name of the 
 deceased sheriff, until another sheriff be appointed for the said 
 county, and sworn as directed ; and the said under-sheriff, or 
 deputy-sheriff, shall be answerable for the execution of the said 
 office in all things, and to all respects, intents and purposes 
 whatsoever, during such interval as the high sheriff so deceased 
 would by law have been, if he had been living ; and the security 
 given to the high sheriff so deceased, by the said under-sheriff, 
 and his pledges, shall stand and remain, and be a security to the 
 king, his heirs and successors, and to all persons whatsoever, 
 for such under-sheriff's due performance of his office during 
 such interval." 
 When she- Before the 3 & 4 Will. 4, c. 99, it was held, that until the writ 
 
 ceasL'^oiT^' of discharge was delivered to the sheriff, he might lawfully 
 arge. excrcisc the duties of his office (r). But if, after he had notice 
 of his discharge, he made his warrant or precept to any of his 
 late bailiffs or officers to arrest another, and the officer by force 
 thereof arrested the party, an action of false imprisonment would 
 lie against both the sheriff and the officer (s). The same law 
 would probably now be held applicable, after the lapse of a rea- 
 
 (p) Dalt. Sheriff, 6 ; Milton's case, cher v. Wiseman, Cro. Eliz. 440; 
 
 4 Rep. 33; Norton v. Simmes, Hob. Dyer, 355, in marg. ; Dalt. 18. See 
 
 13. also 12 Edw. 4, c. 1 ; 17 Edw. 4, 
 
 (q) Westby's case, 3 Rep. 72 ; Cro. c. 6. 
 
 Eliz. 366, S.C. See also 1 JMod 14. (s) Dyer, 41, 355, in marg. ; Dalt. 
 
 ()•) St. John's case, Moor. 186, 18. 
 364; Fitz's case, Cro. Eliz. 12 ; Bou-
 
 HOW LONG THE OFFICE CONTINUES. J 
 
 sonable time for completing the transfer under 3 & 4 Will. 4, chap. i. 
 
 SECT. I. 
 
 c. 99, s. 7. ■ 
 
 The law relative to the transfer of process and prisoners by Transfer of 
 
 the old to the new sheriff, and consequent discharge of the re- "'"'*' '^*^' 
 sponsibility of the former, will be found in a subsequent chapter. 
 
 Section IT. 
 Sheriffs, how and when elected. 
 Sheriffs were formerly chosen by the inhabitants of their re- How and 
 
 .«,.,. , . , when electerl. 
 
 spective counties ; in confirmation of which it was ordained by 
 the statute of 28 Edw. 1, c. 8 and 13, that " the people should 
 have the election of sheriffs in every shire, when the shrievalty 
 is not of inheritance." For anciently, in some counties, the 
 office of sheriff was hereditary ; as, at this day, the shrievalty 
 of the county of Westmoreland is hereditary in the Earl of 
 Thanet ; and also as the shrievalty of the county of Middlesex 
 is vested in the city of London by charter («). But, by the 
 statute of the 9th of Edw. 2, s. 2, this popular mode of election 
 was done away ; for by that statute it was enacted, that " the 
 sheriffs should thenceforth be chosen or assigned yearly by the 
 chancellor, treasurer, and the judges ;" and the election is re- 
 quired to be annually, on the morrow of All Souls, in the 
 Exchequer (ii). The statute of Cambridge, 12 Rich. 2, c. 2, 
 ordains, that the chancellor, treasurer, keeper of the privy seal, 
 steward of the king's house, the king's chamberlain, clerk of the 
 rolls, the justices of one bench and the other, the barons of the 
 exchequer, and all other that shall be called to ordain, name, or 
 
 (() Mr. Justice Blackstone, in his in the commons, but required the ro^al 
 
 Commentaries, vol. i. p. 340, makes approbation. For in the Gothic con- 
 
 the following observation on this an- stituiion the judges of the county 
 
 cient mode of election : — " The rea- courts (which office is executed by the 
 
 son of these popular elections is as- sheriff) were elected by the people, 
 
 sigmd in the same statute, c. 13, but confirmed by the king ; and the 
 
 ' that the commons might choose such form of the election was thus ma- 
 
 as would not be a burden to them.' naged : the people, or incoliE ierri' 
 
 And herein appears plainly a strong torii, chose twelve electors, and they 
 
 trace of the democratical part of our nominated three persons, ei quibus 
 
 constitution; in whiih form of govern- rei uiium coujirmabat." Sliernh, de 
 
 ment it is an indispensable requisite Jure Goth. I. 1, c. 3. 
 • that the people should choose their (h) 9 Edw. 2, s. 2 ; 14 Edw. 3, 
 
 own niagistrate«. 1 his election was c. 17; 23 Men. 6, c. 8. 
 in all probability not absolutely vested
 
 1.0 
 
 SHERIFFS, HOW AND WHEN ELECTED. 
 
 CHAP, 
 
 SECT. 
 
 I. make justices of the peace, sheriffs, and other officers of the 
 ^ king, shall be sworn to act indifferently, and to appoint no man 
 
 The king has 
 no power to 
 make a com- 
 pulsory ap- 
 pointment. 
 
 that sueth, either privately or openly, to be put in office, but 
 such only as they shall judge most sufficient (x). And the cus- 
 tom now is (and has been, at least ever since the time of For- 
 tescue, who was chief justice and chancellor to Henry the Sixth), 
 that all the judges, together with the other great officers and 
 privy councillors, meet in the Exchequer on the morrow of All 
 Souls, yearly (which day is now altered to the morrow of St. 
 Martin, by the last act for abbreviating Michaelmas term), and 
 then and there the judges propose three persons, to be reported 
 (if approved of) to the queen, who afterwards appoints one of 
 them sheriff^?/). 
 
 This mode of nominating three persons, from whom the queen 
 is to choose one, is supposed by Blackstone to have originated 
 in some statute which cannot now be found ; and he draws the 
 conclusion, which is a very just one, from the entry in the 
 council book, 3d March, 34 Hen. 6, which Lord Coke {z) says 
 he copied from the council book with his own hand. The case 
 was, that the king had, of his own authority, appointed a man 
 sheriff of Lincolnshire, which office he refused to take upon 
 bin) ; whereupon the opinions of the judges were taken, what 
 should be done in this behalf. And the two chief justices. Sir 
 John Fortescue and Sir John Prisot, delivered the unanimous 
 opinion of them all : " that the king did an error when he made 
 a person sheriff' that was not chosen and presented to him ac- 
 cording to the statute; that the person refusing was liable to no 
 fine for disobedience, as if he had been one of the three chosen 
 according to the tenor of the statute ; that they would advise 
 the king to have recourse to the three persons that were chosen 
 according to the statute ; or that some other thrifty man be in- 
 treated to occupy the office for this year ; and that the next 
 year, in eschewing such inconveniences, the order of the statute 
 in this behalf made be observed." 
 
 This extract proves one thing, which the stat. 34 & S5 Hen. 8, 
 c. 26, s. 61, expressly recognizes, that the king has no power to 
 name any person to be sheriff' whom he pleases, unless such 
 person is nominated in the usual way. But as long as the king 
 was held to have (or rather before he was deprived of) the dis- 
 
 (i") See also 5 & 6 Edvv. 6, c. 16. 
 
 iy) 1 Bla. Com. 340 ; 24 Geo. 2, c. 48, 
 
 c. 12. 
 
 (:) 2 Inst. 559.
 
 SHERIFFS OF DURHAM, WESTMORELAND, &C. HOW ELECTED. 11 
 
 pensing power, he was supposed to possess the prerogative of chap. i. 
 naming whom he pleased to be sheriff. Although the practice ^^^^' "' 
 of naming pocket-sheriffs has existed since the Revolution, yet 
 no case of a compvdsory appointment has occurred. 
 
 The sheriff of Durham, previously to the 6 & 7 Will. 4, c. 19, Sheriff of 
 (by which the palatinate jurisdiction was transferred to the 
 crown,) used to be appointed by the bishop during his pleasure. 
 But since the passing of that act he is appointed by the crown. 
 
 Formerly, the sheriffs of Welch counties were nominated Sheriffs of 
 yearly by the lord president, council, and justices of Wales, the 
 names of persons were certified by those officers, and one per- 
 son was afterwards chosen and elected by the king, as other 
 sheriffs ; but by the stat. of 1 W. & M. c. 27, s. 4, the nomi- 
 nation of three proper persons to be sheriff of each of the Welch 
 counties was vested in tlie justices of the great sessions, who 
 were to certify the names of such persons to the privy council, 
 crastino animarum, that the king might appoint out of them ; 
 and by the 19th section of 11 Geo. 4 & 1 Will. 4, c. 70, (which 
 abolishes the courts of great session,) this power has been vested 
 in the judges of assize. 
 
 By the Stat, 34 Hen. 8, c. 26, the sheriffs of Wales shall have 
 full power within their sheriffwick to do as the sheriffs of 
 England ; and shall accomplish and execute all the lawful com- 
 mandments and precepts of the justices, &c., and of coroners, 
 in all things appertaining to their offices and authorities. 
 
 The shrievalty of Westmoreland is hereditary in the family Sheriff of 
 of the Earl of Tlianet, and descends as well to females as to land. 
 males, for Ann Countess of Pembroke exercised the office in 
 person (a). 
 
 There are also many cities and towns which by charter are Sheriffs of 
 
 citiBs and 
 
 counties of themselves, and had sheriffs even before the Muni- towns cor- 
 cipal Corporation Act (5 Sc G Will. 4, c. 76). Thus the cities '""""''' 
 of London (which is exempt from the operation of that act), 
 York, Bristol, Coventry, Chester, Gloucester, Lincoln and Nor- 
 wich are counties, and even before the Municipal Corporation 
 Act had each two sheriffs ; and the cities of Canterbury, Exeter, 
 Lichfield and Worcester, and the towns of Southampton, Kings- 
 ton-upon-Hull, Nottingham, Poole, Newcastle-upon-Tyne, Car- 
 marthen and Haverfordwest, are counties, and even before that 
 
 (a) Harg. Co. Litt. 326. Cumberland is also said to be hereditary by a 
 charter of King John ; Impey.
 
 SHERIFFS OF LONDON AND MIPDLESEX, 
 
 CHAP. I. 
 SliCT. II. 
 
 Of the sheriffs 
 of LonrloM 
 and Middle- 
 sex. 
 
 act had each one sheriff. Since tlie Municipal Corporation Act 
 the cities of Oxford and Berwick-upon-Tweed, as well as the 
 above-named cities and towns, have been empowered by the 
 61st section to elect sheriffs, through the municipal council, on 
 the 1st of November in each year. But the sheriffs elected in 
 pursuance of that act in places where previously there was no 
 officer on whom the duty of sheriff devolved, have not, like the 
 sheriffs of those cities and towns which formerly were and still 
 are counties corporate, the execution of process, that duty still 
 rests on the same shoulders as before the act passed (6). Within 
 the limits of the counties corporate already enumerated, the 
 duties of the shrievalty must be performed by their own she- 
 riffs. 
 
 The city of London claims by prescription the right to elect 
 two sheriffs for the city (c). These are two officers, and are 
 styled the sheriffs of London. And by a charter of Hen. 1, 
 confirmed by King John, the shrievalty of Middlesex was 
 granted to the citizens of London, with all customs belonging 
 both within the city and without. The sheriffs of London are 
 always sheriff^ of Middlesex ; but in Middlesex the two persons 
 are styled sheriff; and although the same persons are sheriff of 
 Middlesex and sheriffs of London, yet as sheriffs of London, on 
 a writ directed to them, they have no authority to execute it in 
 Middlesex, and so t converse {d). 
 How elected. The qualifications for, and the exemptions from, the offices 
 of sheriff of London and Middlesex, and also the mode of their 
 election, are regulated by bye laws of the city. By one of 
 which bye laws, an act of council, 7th of April, 1748, it is 
 enacted that from thenceforth the right of election to the shrie- 
 valties of London and Middlesex shall be vested in the livery- 
 men of the several companies of the city, assembled in the 
 Guildhall for that purpose ; the election to take place annually 
 on the 24th day of June, unless that day be a Sunday, and then 
 the day after ; and in case of vacancy, the lord mayor may 
 
 (6) Granger v. Taunton, 3 Bing. 
 N. C. 64; 5 Dowl, 190, S. C. 
 
 (c) London had no .sheriffs in the 
 13 Edw. 1 ; 1 Leon. 284. In Nicol 
 V. Boyne, 2 Dowl. 761 ; 3 M. & S. 
 812; 10 Bing. 339. S. C, Tindal, 
 C. J., said, that London has two she- 
 riffs by a gruiil of King John — ijiiicie. 
 
 {(l) See Hammond v, Taylor, 3 
 
 Bar. & Aid. 408. And a person in 
 Wewgate, in custody of the sheriff of 
 London, cannot be detained on a writ 
 directed and delivered to the sheriff of 
 Middlesex, for the prisons are several 
 and distinct. 1 Roll. Abr. 894. As 
 to improper direction of writs to these 
 officers, see post, chap. 5, s. 1.
 
 HOW ELECTED. 
 
 13 
 
 appoint a day of election ; the new sheriffs are to take upon chap. r. 
 them the office on the vigil of St. Michael, and to hold it until ^''"•"•- 
 that time in the ensuing year. 
 
 The lord mayor may nominate to the court of aldermen, By whom 
 
 „ . , , i/>T • uominaled. 
 
 between the 1 4th of April and the 14th of June \n every year, 
 one or more fit persons, (not exceeding nine,) being free of the 
 city, to be publicly put in nomination ; also any two or more 
 liverymen at the day of election may nominate any freeman of 
 the city as a proper person to be elected. 
 
 Any person nominated by the lord mayor may discharge him- P".'e '"^^^^^^j 
 self from such nomination, and the serving of the office of the office. 
 sheriff" for ever, unless he become an alderman, by paying, after 
 six days' notice, 400/. and twenty marks to the chamberlain, for 
 certain purpose?: by that act of council declared ; and by another 
 act of council, 11th of June, 1799, any person either elected or 
 nominated may be discharged from such nomination or election, 
 by making affidavit before the court of aldermen that he is not 
 worth 20,000/. in lands, goods, and separate debts, supported 
 also by the oatlis of six other citizens and freemen of the city 
 that they believe his affidavit to be true. 
 
 Sheriffs elect are to appear on the 14th of September after 
 their election, before the court of aldermen, to enter into an 
 obligation in the penal sum of 1000/. to the chamberlain of the 
 city, conditioned to appear on Michaelmas day at the Guildhall, 
 and to take upon them the oath (e) usually taken by the sheriffs 
 
 (e) The oath to be taken by the out, well and lawfully ye shall keep 
 
 sheriff's of London and Middlesex at and do to be kept, and the judgmenis 
 
 Guildhall on Michaelmas day is as and executions of your court ye shall 
 
 follows: "Ye shall swear, that ye not tarry without cause reasonable ; 
 
 shall be good and true unto our sove- ne right shall you none disturb. The 
 
 reign lady the queen of England, and writs that to you come touching the 
 
 unto her heirs and successors ; and state and franchise of this city, you 
 
 the franchise of the city of London, shall not return, till you have showed 
 
 within and without, ye shall save and them to the mayor and the council 
 
 maintain to your power ; and ye shall of tliis city for the time being, and of 
 
 well and lawfully keep the shires of them had advisement, and ready you 
 
 London and Middlesex ; and the offices shall be at reasonable warning of the 
 
 that to the same shires appertain to mayor, for keeping of the peace, and 
 
 be done, well and lawfully ye shall do maintaining the state of this city; 
 
 after your wit and power; and right and all other things that longea to 
 
 ye shall do, as well to poor as lich, your office, and the keeping of the 
 
 and good custom ye shall not break, said shires, lawfully you shall do, by 
 
 no evil custom arrere, and the assize you and yours ; and the city you shall 
 
 bread, all and all other victuals within keep from harm after your power, and 
 
 the franchise of this city, and with- the shire of Middlesex ; ne the gaol
 
 14 
 
 SHERIFFS OF LONDON AND MIDDLESEX, HOW ELECTED. 
 
 CHAP. I. 
 SECT. II. 
 
 Persons dis- 
 qualilied. 
 
 of London and Middlesex. And in case such sheriffs, elected 
 at the general election day, do not appear on the 1 4th of Sep- 
 tember to take the oath; or, if elected between the 14th and 
 S^nd of September, do not take the oath on Michaelmas day ; 
 or, if elected at any other period, do not within six days after 
 notice of election take the oath, they are subject to a penalty, 
 if an alderman of the city, or a commoner nominated by the 
 lord mayor, of 600/.; or if any other freeman, of 400/. 
 
 Any person who has paid the fine, unless he afterwards 
 become an alderman, is exempt from serving the office ; and no 
 person who has once served the office of sheriff of London, or 
 sheriff of Middlesex, is again eligible. 
 
 of Newgate you shall not let to farm. 
 As help you God. 
 
 Addition, 
 Ye shall also swear that ye shall 
 freely give all such rooms and offices 
 of Serjeants and yeomen, as shall 
 happen to become void during the 
 time of ye shall remain in the office 
 of sheriffalty, to such apt and able 
 person and persons, as shall be by 
 you nominated to the lord mayor and 
 court of aldermen, and by Ihem ad- 
 
 mitted, without any money or other 
 reward to be had, taken or hoped for 
 in respect thereof, according to the 
 act of council made and provided in 
 that behalf, the nine-and-tweutieth 
 day of April, in the six-and-twentieth 
 year of the reign of our sovereign 
 lady Queen Elizabeth, &c. As help 
 you God." The next day the sheriffs 
 attend at the Exchequer before the 
 cursilor baron, to be sworn, and to 
 pay the fees, &c.
 
 ( 15 ) 
 
 CHAPTER II. 
 
 OF THE WARRANT OF APPOINTMENT AND OATHS OF THE NEW 
 SHERIFF ; AND THE TRANSFER OF THE OFFICE. 
 
 Sect. I. — The Sheriff's Warrant of Appointment. 
 
 II. — The Sheriff's Oath of Office, how and before whom 
 taken. — The Declaration and Oaths at Sessions, when 
 and how to he taken. 
 
 III.— 0/ the Transfer of the Office.— Of the Assignment of 
 Writs; of Prisoners. — When the Authority of the 
 Sheriff ceases. — Of the Liabilities of the old Sheriff 
 after expiration of his office. — Apportionment of Fees 
 between the old and the new Sheriff on a Levari 
 Facias, 
 
 Section I. 
 
 The Sheriff's Warrant of Appointment. 
 
 Formerly sheriffs were appointed by patent, but their appoint- chap. ii. 
 ment is now governed by the act of 3 & 4 Will. 4, c. 99 (a), ^ect^j^ 
 which, after reciting, inter alia, that the appointment of sheriff's 
 is attended with unnecessary expense, delay, and trouble, and 
 partly repealing the acts of 3 Geo. 1, c. 15 and 16, proceeds to 
 enact by the second section, 
 
 " That from and after the passing of this act it shall not be sheriffs not 
 
 /> 1 -rv 1 ^-rr- /• i 'i to sue out 
 
 " necessary for any sheriff or sheriffs ot any county, city, or patent or pass 
 
 " town in England or Wales to sue out any patent or writ of fxcMueV". 
 
 •' assistance, or to make or pay proffers, nor shall any bailiff" or 
 
 '« bailiff's of liberties in England or Wales be required to make 
 
 *' or pay any proffers, nor shall he or they have any day of pre- 
 
 " fixion, or be apposed, or take any oath or oaths before the 
 
 " cursitor baron to account, or account or be cast out of court, 
 
 (a) See Appendix.
 
 16 OF THE WARRANT OF APPOINTMENT. 
 
 CHAP. It. " as now or heretofore in use in his majesty's Court of Ex- 
 ' " chequer, any law, statute, or usage to the contrary notwith- 
 
 " standing." 
 Appointment And the third section enacts, " that whenever any person 
 it gjjaii be July pricked or nominated by his majesty for and to 
 •' be sheriff of any county in England or Wales, except the 
 " county palatine of Lancaster, the same shall be forthwith noti- 
 " fied in the London Gazette, and a warrant in the form set forth 
 " in the schedule to this act shall be forthwith made out and 
 " signed by the clerk of the privy council, and transmitted by 
 " him to the person so nominated and appointed sheriff as afore- 
 " said ; and the appointment of sheriff thereby made shall be 
 " as good, valid, and effectual in the law, to all intents and pur- 
 " poses whatsoever, as if the same had been made by patent 
 " under the great seal of Great Britain, or by any ways and 
 " means heretofore in use ; and the sheriff and sheriffs so ap- 
 " pointed as aforesaid shall thereupon, and upon taking the oath 
 " of office hereafter mentioned, have and exercise all powers, 
 " privileges, and authorities whatsoever usually exercised and 
 " enjoyed by sheriffs of counties in England and Wales, without 
 " any patent, writ of assistance, or other writ whatsoever, or 
 " entering into any recognizance by himself or sureties, and 
 " without payment of or being liable to pay any fees whatsoever 
 " for the same." 
 Clerk of And the fourth section enacts, " that a duplicate of the said 
 
 duph^iate!""^" " Warrant shall, within ten days next after the date of the same 
 " warrant, be transmitted by the said clerk of the privy council 
 " to the clerk of the peace of the county for which such person 
 " shall be nominated and appointed sheriff, to be by the said 
 " clerk of the peace enrolled, and which he is hereby required 
 " to enrol and keep without fee or reward." 
 
 The form of the warrant is given by the schedule of the act, 
 and is as follows : — 
 
 " At the Court at , the Day of . Present, 
 
 the Queen's most Excellent Majesty in Council. 
 " To A. B. of, Sfc. 
 *' Whereas her majesty was this day pleased, by and with the 
 advice of her jnivy council, to nominate and appoint you for and 
 to he sheriff of the county of during her viajesty's plea- 
 
 sure : These are therefore to require you to take the custody and
 
 OF THE OATHS TO BE TAKEN BY THE SHERIFF. 17 
 
 charge of the said county, and duly to 'perform the duties of sheriff chap. n. 
 
 thereof during her majesty s pleasure; and whereof you are duly — — 
 
 to answer according to law. 
 ^' Dated this day of 
 
 *^ By her majesty's command, 
 "CD." 
 
 Section II. 
 
 Of the Oaths of Office. 
 
 The 3 & 4 Will. 4, c. 99, s. 6, enacts, " that each and every The oaths to 
 person so appointed sheriff and under-sheriff as aforesaid, ex- ghehtfsl" ^ 
 cept the sheriffs of London and Middlesex and their under- 
 sheriffs, shall before he enter upon the execution of his office 
 take the oath of office heretofore and now required bylaw, which 
 oath shall be fairly written on parchment (without being subject 
 to any stamp duty) and signed by him, and shall and may be 
 sworn before the barons of his majesty's Exchequer or any of 
 them, or any one of his majesty's justices of the peace for the 
 county of which he shall be appointed sheriff or under-sheriff; 
 and the same shall be thereupon transmitted to the clerk of the 
 peace for the same county, who is hereby required to file the 
 same among the records of liis office, and for which he shall be 
 entitled to demand and have from such sheriff or under-sheriff 
 the sum of five shillings and no more." 
 
 The oaths required are in general the oaths of allegiance, su- 
 premacy, and abjuration (6), or in case of a Roman Catholic, the 
 oath prescribed by 10 Geo. 4, c. 7, which is substituted for the 
 oaths of allegiance, supremacy, and abjuration, and in all cases the 
 "oath of office" prescribed by the statute 3 Geo. 1, c. 15, s. 18, 
 which is as follows : — 'I, A. B., do swear that I will well and truly 
 
 * serve the queen's majesty in the office of sheriff of the county 
 
 * of N., and promote her majesty's profit in all things that be- 
 
 * long to my office as far as I legally can or may ; I will truly 
 
 * preserve the queen's rights, and all that belongeth to the crown; 
 
 (6) 13 & 14 Will. 3, c. 6; 1 Ann. slat. 1, c. 22; 4 Ann. c. 8; 1 Geo. 1, 
 Stat, 2, c. 13, s. 2.
 
 18 
 
 OF THE OATHS TO BE TAKEN BY THE SHERIFF. 
 
 CHAP. II. 
 SECT. II. 
 
 Oaths taken 
 by the sheriffs 
 of Wales ; 
 
 I will not assent to decrease, lessen or conceal the queen's 
 rights, or the rights of her franchises ; and whensoever I shall 
 have knowledge that the rights of the crown are concealed or 
 withdrawn, be it in lands, rents or franchises, suits or ser- 
 vices, or in any other nnatter or thing, I will do my utmost to 
 make them be restored to the crown again ; and if I may not 
 do it myself, I will certify and inform the queen thereof, or 
 some of her judges ; I will not respite or delay to levy the 
 queen's debts for any gift, promise, reward or favour, where I 
 may raise the same without great grievance to the debtors ; 
 I will do right as well to poor as to rich in all things belonging 
 to my office ; I will do no wrong to any man, for any gift, 
 reward or promise, nor for favour or hatred ; I will disturb 
 no man's right, and will truly and faithfully acquit at the Ex- 
 chequer all those of whom I shall receive any debts or duties 
 belonging to the crown ; I will take nothing whereby the queen 
 may lose, or whereby her right may be disturbed, injured or 
 delayed ; 1 will truly return and truly serve all the queen's 
 writs, according to the best of my skill and knowledge ; I will 
 take no bailiffs into my service but such as I will answer for, 
 and I will cause each of them to take such oaths as I do, 
 in what belongeth to their business and occupation ; I will 
 truly set and return reasonable and due issues of them that 
 be within my bailiwick, according to their estates and circum- 
 stances, and make due panels of persons able and sufficient 
 and not suspected or procured, as is appointed by the statutes 
 of this realm ; I have not sold or let to farm, or contracted 
 for, nor have I granted or promised for reward or benefit, 
 nor will I sell or let to farm, nor contract for or grant for 
 reward or benefit, by myself or any other person for me or 
 for my use, directly or indirectly, my sheriffwick or any baili- 
 wick thereof, or any office belonging thereunto, or the profits 
 of the same, to any person or persons whatsoever ; I will 
 truly and diligently execute the good laws and statutes of this 
 realm, and in all things well and truly behave myself in my 
 office for the honour of the queen and the good of her subjects, 
 and discharge the same according to the best of my skill and 
 power. — So help me God." 
 
 The sheriffs of Wales and Chester do not take the above-men- 
 tioned oath, but take the accustomed oath which they formerly
 
 OF THE OATHS TO BE TAKEN BY THE SHERIFF. 19 
 
 did, except the following words, " Ye shall be dwelling in your chap. n. 
 
 own proper person within your bailiwick, for the time ye shall ! !_ 
 
 continue in the same office, except ye be otherwise licensed by 
 the queen," which words are now left out (c). 
 
 The sheriffs of London and Middlesex, the county palatine of by the sheriffs 
 Durham, the county of Westmorelcmd, and the sheriffs of cities Durham and 
 and towns being counties of themselves, are to take the same oath land, 
 before their entrance on the duties of their office, as the sheriffs 
 of English counties, except that part that relates to the placing 
 in or disposing of any of the offices of their under-sheriffs, 
 county clerks, bailiffs, or other officers, or their continuance 
 therein (rf). 
 
 The sheriff may take the " oath of office" before the Court of Before whom 
 
 •^ _ the oaths are 
 
 Exchequer, or before a single baron of tliat court, or before any to be taken, 
 justice of the peace for the county (e). This oath should be 
 taken by the sheriff as soon as he receives his warrant, for until 
 he be sworn he may not intermeddle, nor take upon him to use 
 or exercise his office (e). And if he do so his acts as sheriff, 
 (though perhaps not void as to third persons), would most pro- 
 bably be held unauthorized and unjustifiable so far as regards 
 his own protection, unless indeed they fall within the protection 
 of an indemnity act (/). 
 
 The oaths of allegiance, supremacy, and adjuration must be Oathofaiie- 
 taken, made, and subscribed in one of the courts at Westmin- 
 ster, or a court of quarter sessions for the county, and between 
 nine and twelve in the forenoon, within six calendar months 
 after appointment, under a penalty of 500/. and certain disabili- 
 ties {g). In the case of a Roman Catholic, the oath prescribed 
 by the 10 Geo. 4, c, 7, s. 6, is to be taken instead of the 
 oaths of allegiance, supremacy and adjuration. That oath is as 
 follows : 
 
 ' I, A. B., do sincerely promise and swear that I will be 
 
 * faithful and bear true allegiance to her Majesty Queen Vic- 
 
 • toria, and will defend her to the utmost of my power against 
 
 (c) 3 Geo. 1, c. 15, s. 20. See c. 26, s. 3 ; 16 Geo. 2, c 30, s. 3. 
 
 this oath. Appendix. The clerk of the peace administers the 
 
 (rf) 3 Geo. 1, c. 15, s. 21. oath, and has them with the declara- 
 
 (e) 3 & 4 Will. 4, e. 99, s. 6. tion ready ingrossed on a parchment 
 
 (/) R. V. Parry, 14 East, 550; roll, for which the clerk of the peace 
 
 Re Steavenson, 2 B. & C. 34. is entitled to a fee ; in some counties 
 
 (g) 1 Geo. 4, Stat. 2, c. 13, s. 2 ; this fee is 2s. 
 
 2 Geo. 2, c. 31, ss. 3, 4, 9 ; 9 Geo. 2, 
 
 C 2
 
 20 
 
 OF THE OATHS TO BE TAKEN BY THE SHERIFF. 
 
 CHAP. II. 
 SECT. II. 
 
 Decl.iralion 
 instead of 
 sacrament. 
 
 * all conspiracies and attempts whatever which shall be made 
 ' against her person, crown or dignity, and I will do my utmost 
 ' endeavours to declare and make known to her majesty, her 
 
 * heirs and successors, all treasons and traitorous conspiracies 
 ' which may be formed against her or them : And I do faitli- 
 ' fully promise to maintain, support and defend to the utmost 
 ' of my power the succession of the crown, which succession, 
 
 * by an act intituled ' An Act for the further Limitation of the 
 ' Crown, and better securing the Rights and Liberties of the 
 
 * Subject,' is and stands limited to the Princess Sophia, Elec- 
 ' tress of Hanover, and the heirs of her body being Protestants, 
 
 * hereby utterly renouncing and abjuring any obedience or alle- 
 
 * giance unto any other person claiming or pretending a right to 
 ' the crown of this realm. And I do further declare, that it is 
 ' not an article of my faith, and that I do renounce, reject and 
 
 * abjure the opinion that princes excommunicated or deprived 
 
 * by the Pope, or any other authority of the see of Rome, may 
 ' be deposed or murdered by their subjects, or by any person 
 
 * whatsoever : And I do declare, that I do not believe that the 
 ' Pope of Rome, or any other foreign prince, prelate, person, 
 
 * state, or potentate, hath or ought to have any temporal or civil 
 'jurisdiction, power, superiority or pre-eminence, directly or 
 ' indirectly, within this realm ; I do swear that I will defend 
 ' to the utmost of my power the settlement of property within 
 
 * this realm, as established by the laws : And I do hereby dis- 
 
 * claim, disavow and solemnly deny any intention to subvert the 
 
 * present Church Establishment as settled by law within this 
 ' realm : And I do solemnly swear that I never will exercise 
 
 * any privilege to which I am or may become entitled, to dis- 
 
 * turb or weaken the Protestant religion or Protestant govern- 
 
 * ment in the united kingdom: And I do solemnly in the 
 ' presence of God profess, testify and declare, that 1 do make 
 
 * this declaration, and every part thereof, in the plain and ordi- 
 ' nary sense of the words of this oath, without any evasion, 
 ' equivocation or mental reservation whatsoever. — So help me 
 
 * God: 
 
 The sheriff of a county at large must also, within six months 
 after his admittance into office (instead of taking the sacrament, 
 which was formerly requisite (i)), make and subscribe in the 
 
 (i) 25 Car. 2, c. 2, ss. 2, 3, 9.
 
 OF THE OATHS TO BE TAKEN BY THE SHERIFF. 21 
 
 Court of Chancery, Queen's Bench, or Quarter Sessions of the chap. ii. 
 county or place of his residence, the declaration required by ^^'^^' "' 
 9 Geo. 4, c. 1 7, s. 5, which is as follows : 
 
 ' I, A. B., do solemnly and sincerely, in the presence of God, 
 
 * profess, testify, and declare, u{)on the true faith of a Christian, 
 ' that I will never exercise any power, authority, or influence 
 
 * which I may possess by virtue of the office of sheriff of , 
 
 ' to injure or weaken tlie Protestant Church as it is by law 
 ' established in England, or to disturb the said Church, or the 
 
 * bishops and clergy of the said Church, in the possession of any 
 
 * rights or privileges to which such Church, or the said bishops 
 ' and clergy, are or may be by law entitled.' 
 
 But this declaration is not necessary in the case of a sheriff No deciara- 
 of a city or town being a county of itself (^"). And indeed there county of 
 
 , , . % r- citj or lown. 
 
 seems to be nothmg now to prevent a member ot any or no 
 religious persuasion from holding the office of sheriff in a city 
 or town being a county of itself. 
 
 Section III. 
 Of the Transfer of the Office from the old to the new Sheriff. 
 
 Before the 3 & 4 Will. 4, c. 99, the old sheriff, to exonerate 
 himself from charge, was required, (by the statute 20 Geo. 2, 
 c. 37,) " at the expiration of his office, to turn over to the suc- 
 ceeding sheriff, by indenture and schedule, all such writs and 
 process as remained in his hands unexecuted, who should duly 
 execute and return the same." Also, after the new sheriff had 
 taken the necessary oaths, and the writ of discharge (now abo- 
 lished) had been delivered to the old sheriff, the new sheriff was 
 to take an assignment from the old sheriff of all his prisoners 
 which were in the gaol, by their names, by view and by inden- 
 ture, to be made between the old and the new sheriff (A;). 
 
 So that, before the 3 & 4 Will. 4, c. 99, the old sheriff was 
 
 (./) 5 & 6 Will. 4, c. 28. to the coroner to put the sheriff ia 
 
 (k) Dalt. 15. In the Register, 295, possession of the county gaol, after 
 
 there is a writ commanding the old liearing divers counsel. Way 25, 29, 
 
 sheriff to deliver to the new sheriff the and .Tuly 1, 11, 1696. Sheriff of 
 
 gaol, &CC. by indenture. The Court Worcester. 
 
 of Exchequer granted an injunction
 
 22 OF THE TRANSl'ER OF THE OFFICE. ■ 
 
 CHAP. II. not discharged from liability, nor was any liability imposed upon 
 ^^^'^' "^' the new sheriff, until the former had received his writ of dis- 
 charge, and had assigned over the process in his hands unexe- 
 cuted, and prisoners in his custody, by indenture to the latter {I). 
 Since the 3 & 4 Will. 4, c. 99, the writ of discharge and inden- 
 ture of assignment are altogether unnecessary ; and the seventh 
 section of that act enacts, 
 Prisoners and " That every sheriff of any county, city, liberty, division, 
 turned over town Corporate, or place, shall at the expiration of his office make 
 of oftfcTto"" out and deliver to the new or incoming sheriff a true and correct 
 sheriff!"^ ^'st and account under his hand of all prisoners in his custody, 
 and of all writs and other process in his hands not wholly exe- 
 cuted by him, with all such particulars as shall be necessary to 
 explain to the said incoming sheriff the several matters intended 
 to be transferred to him, and shall thereupon turn over and 
 transfer to the care and custody of the said incoming sheriff all 
 such prisoners, writs, and process, and all records, books, and 
 matters appertaining to the said office of sheriff; and the said 
 incoming sheriff shall thereupon sign and give a duplicate of 
 such list and account to the sheriff going out of office, to whom 
 the same shall be a good and sufficient discharge of and from all 
 the prisoners therein mentioned and transferred to the said 
 incoming sheriff, and the further charge of the execution of the 
 writs, process, and other matters therein contained, without any 
 writ of discharge, or other writ whatsoever ; and the said in- 
 coming sheriff shall thereupon stand and be charged with the 
 said prisoners, and also with the execution and care of the said 
 writs, process, and other matters, contained in the said list and 
 account, as fully and effectually as if the same writs and process 
 had been turned over by indenture and schedule ; and in case 
 any sheriff shall refuse or neglect at the expiration of his office 
 to make out, sign and deliver such list and account as aforesaid, 
 and to turn over the process aforesaid in manner aforesaid, every 
 such sheriff so neglecting or refusing shall be liable to make 
 such satisfaction by damages and costs to the party aggrieved as 
 he, she, or they shall sustain by such neglect or refusal." 
 
 This section, it is to be observed, only alters the mode in 
 which the transfer is to be made by the old to the new sheriff. 
 Under the former system, the old sheriff was discharged on 
 
 (/) Davidson v. Seymour, Moo. & M. 34.
 
 TRANSFER OF PRISONERS AND PROCESS. 23 
 
 receiving the writ of discharge, and executing the assignment chap. ir. 
 
 SECT. HI. 
 
 required by the 20 Geo. 2, c. 37. Under the present system, 
 he is discharged on receiving from the new sheriff the duplicate 
 list above mentioned. The law applicable to the former mode 
 of discharge seems in most respects also applicable to the mode 
 prescribed by 3 & 4 Will. 4, c. 99. 
 
 As to the transfer of prisoners and process, the high sheriff Transfer and 
 
 ^ . '^ . ° , receipt of 
 
 under the law as it stood previous to 3 & 4 Will. 4, c. 99, did not prisoners and 
 
 in general receive the prisoners himself, but executed a letter 
 
 of attorney, duly stamped, empowering the under sheriff, and 
 
 others therein named, or any one of them, to receive the gaol, 
 
 and execute a counterpart of the indenture of assignment, in 
 
 which indenture there must have been specified, and distinctly 
 
 set forth, all the detainers lodged against each prisoner. In case 
 
 any cause was omitted, for such cause the prisoner was confined 
 
 at the peril of the old sheriff (n). And if the old sheriff failed 
 
 to mention in the assignment one of the prisoners, or omitted to 
 
 mention one of several detainers against a prisoner, and the 
 
 prisoner escaped, the old slieriff was liable to an action for an 
 
 escape at the suit of the person whose suit was omitted (o). And 
 
 on the same principle, the old sheriff would now be liable for 
 
 omitting or insufficiently describing any prisoner or unexecuted 
 
 writ in the list prescribed by the 3 & 4 Will. 4, c. 99, s. 7. It 
 
 would seem that the doctrine formerly laid down in some cases, 
 
 that if the old sheriff gave notice of the prisoners, and the causes 
 
 of detention, by parol or by writing under his hand or under the 
 
 hand of the under-sheriff, and not by indenture, it was sufficient 
 
 provided the new sheriff did not object (p), (if it was ever good 
 
 law, which there is strong reason to doubt (i^),) is at all events 
 
 not applicable at the present day, and that, unless by adopting the 
 
 mode pointed out by 3 & 4 Will. 4, c. 99, s. 7, the old sheriff 
 
 cannot transfer his liability to his successor (?•)• It may be 
 
 doubted whether in order to discharge the old sheriff, the dupli- 
 
 (»i) Westby'scase, 3Rep. 72,S.C.; (p) Dall. 16; PouUer v. Green- 
 
 Cro. Eliz. 365 ; Poph. 85. See also wood, Barnes, 367 ; Sir Thomas 
 
 Chandler i'. Thompson, Hob. 266; Read's case, 2 Roll. Rep. 146. 
 
 Egerton v. Morgan, 1 Bulstr. 70; (q) Davidson t>. Seymour, Moo. & 
 
 Hanmerv. Winmer, 1 Sid. 335, S.C.; M. 34, and the learned note of the re- 
 
 2 Keb. 2224 ; 2 Leon. 54 ; Noy, 51. porter. 
 
 (o) SeecasesoHte, n. (n). And see (_>•) See Thomas v. Newnam, 2 
 
 20 Geo. 2, c. 37. Dowl. N. S. 33.
 
 24 TRANSFER OF PRISONERS AND TROCESS. 
 
 CHAP. II. 
 SECT. III. 
 
 cate list sliould not be signed by the new sheriflP himself (a), and 
 not merely by the under-sheriff or other agent. 
 Prisoners The new sheriff before 3 & t Will. 4, c. 99, was only bound 
 
 transTerred.^ to receive the prisoners from the old sheriff at the county gaol, 
 and in no other place (t) ; yet, if the old sheriff delivered, and 
 his successor received the prisoners out of the gaol, the old 
 sheriff was discharged by that delivery (t) ; and under the 3 & 
 4 Will. 4, c. 99, s. 7, it would seem that the old sheriff is by the 
 signature of the duplicate list discharged from future responsi- 
 bility for prisoners in any place of lawful custody properly de- 
 scribed in the list. 
 Transfer in In case of the death of a sheriff, it is said that the new sheriff 
 
 caae of dcalh. , i i • -i i • • rv • i 
 
 is bound at his peril, as soon as he is sworn into ornce, without 
 any delivery or notice, to take notice of the prisoners in 
 the gaol, and of the causes of their commitment (u). In the 
 meantime the under-sheriff of the former sheriff is responsi- 
 ble («), and it may be doubted whether that responsibility does 
 not continue until the prisoners have been duly transferred to the 
 new sheriff. 
 Trannferof Questions sometimes arise as to the stages at which process 
 
 executed. may be transferred to the new sheriff, and at which the old 
 sheriff is bound to complete its execution. With reference to 
 this question it is observable, that the words of the act now in 
 force, 3 & 4 Will. 4, c. 99, s. 7, are somewhat different from 
 those of the former act, 20 Geo. 2, c. 37, s. 1. The 20 Geo. 2 
 directs the sheriffs, at the expiration of their office, " to turn over 
 to the succeeding sheriffs all such writs and process as shall re- 
 main in their hands unexecuted, who shall duly execute and 
 return the same." The words of 3 & 4 Will. 4, are, " all writs 
 and other process in his hands not wholly executed.'' While the 
 former act was in force, the construction put upon the word 
 " unexecuted " seems to have been " wholly unexecuted ;" and 
 therefore before 3 & 4 Will. 4, c. 99, if a sheriff had commenced 
 the execution of a writ, as of a fieri facias by seizure, he was 
 bound to complete it, and might have proceeded to sell the goods 
 
 (s) See Hyde v. Johnson, 2 Bing. Fitz. Attorney, 61. 
 N. C. 776, on the construction of a («) Westby's case, 3 Rep. 72 b, 
 
 statute similarly worded. S. C. ; Cro. Eliz. 366; Dall. 17. 
 
 (t) Dalt. 16, cit. 11 Rich. 2; (i) 3 Geo. 1, c. 15, s. 8.
 
 TRANSFER OF PRISONERS AND PROCESS. 
 
 25 
 
 without waiting for a vendkioni exponas (?/), and might be com- chap. n. 
 
 SECT* III* 
 
 pelled to sell them by a distringas nuper vicecomitem {z). 'Jlie 
 
 present act, on the first impression, seems hardly susceptible of 
 this construction, though there is a dictum attributed to Parke, B., 
 in one report of Yaroth v. Hopkins (a), " that if the old sheriff 
 had seized he must have gone on with the execution." And 
 where the sheriff has seized and sold under af.fa., and nothing 
 remains to be done but to hand over the proceeds to the execu- 
 tion creditor, the writ must be considered as wholly executed, 
 and ouglit not to be transferred to the incoming sheriff (6). Nor 
 can any liability be imposed upon the new sheriff by the at- 
 tempted transfer of such a writ, even though he employ the 
 same under-sheriff (6). 
 
 All writs not executed by the old sheriff, and not returnable, or theiiabi- 
 it is of course the duty of the new sheriff to execute. And if a old sheriff to 
 
 . 1 • 1 1 1 1 -rt- /• j-rr return process 
 
 capias be returned non est inventus by both snentts tor dinerent after expira- 
 
 portions of time, if the new sheriff has been guilty of negligence 
 
 in the execution of the writ, he alone is liable to an action (c). 
 
 To all writs executed by the late sheriff, he is the proper person 
 
 to make the return (d) ; and a return by the new sheriff of cepi 
 
 corpus of a defendant who has never been in his custody, to 
 
 a writ executed by the old sheriff, is bad (e). The courts will 
 
 order the old sheriff to amend his return if it be erroneous (/). 
 
 The old sheriff when he goes out of office should hand over the 
 
 writs executed by him to the new sheriff, who should return the 
 
 writ with the old sheriff's return thereon, and that he received 
 
 the writ as above endorsed from his predecessor (g^). The old 
 
 sheriff may be ruled to return any writ executed by him when ^ 
 
 in office, and would be liable to an attachment for not complying 
 
 with the rule (/<). But the sheriff is not in general liable to be 
 
 (y) Ayre v. Aden. Cro. Jac. 73; (h) Harrison v. Paynter, 6 M. & 
 
 1 Roll. Abr. 893 ; Doe dem. Stevens W. 387. 
 
 v.Donston, 1 Bar,& Aid. 230; Yelv. (c) See Fonseck v. Magnay, 6 
 
 44, contra. Taunt. 231 ; 1 Warsh, 554, S.C. 
 
 (j) Cleik V. Withers, 6 Mod. 299 ; (d) Wesiby's case, 3 Rep. 72. 
 
 2 Lord Raym. 1074, S. C. And see (e) Hex v. Sheriff of Middlesex, 
 •post, chap. 1 1, s. 4. 4 East, 604. 
 
 (o) 3 Dowl. 711. The report of (/)Dalt. 19. 
 
 the same case, under the name of (g) 2 Roll. Abr. 457 ; Dalt. 516; 
 
 Yrath v. Hopkins, 2 C. M. & R. 250, 1 Bulstr. 70. 
 
 gives the supposed dictum merely in (/t) Rex v. Adderley, Doug. 464. 
 
 the shape of a question thrown out by See also Rex v. Sheriff of Middlesex, 
 
 thelearned judgeduring theaigument. 4 East, 604.
 
 20 APPORTIONMENT OF FEES. 
 
 CHAP. II. called on to return any writ executed by him, unless ruled within 
 ^^"'^•"'' six lunar (i) months from the expiration of his office (/c) ; and 
 although it has been intimated that a sheriff might be called 
 upon to return the writ after that time under peculiar circum- 
 stances (Z), yet it will be found difficult to carry out such inti- 
 mation without overruling the statute of 20 Geo. 2, c. 37. 
 Apporiion- gy {[^q statute 3 Geo. I.e. 15, s. 9, it is enacted, that when 
 
 meiit of (ecs •' 
 
 onExchequer any sheriff shall, by process out of the Exchequer, seize or 
 extend any goods, chattels or personal estate, into the hands 
 of his majesty, &c. for any debts or duties due to the crown, 
 and shall die or be superseded before a venditioni exponas be 
 awarded for sale, or before he has made any actual sale thereof, 
 and a writ shall afterwards be awarded to a subsequent sheriff, 
 who shall make sale of such goods, &c., the barons of the 
 Exchequer, if sitting, or if not sitting, they or any one of them 
 of the degree of the coif, shall settle the fees or poundage for 
 such seizure or sale between such preceding and subsequent 
 sheriff, with regard to the trouble each sheriff had in the exe- 
 cution of such process. 
 
 (i) Rex v. Adderley, Doug. 463, requested within that time is not suffi- 
 
 note. cient, Rex v. Jones, 2 T. R. 1. 
 
 (fc) 20 Geo. 2, c. 37. He must (/) Wilton v. Chambeis, 3 Dowl. 
 
 be ruled within six months ; to be 333.
 
 ( 27 ) 
 
 CHAPTER III. 
 
 OF THE sheriff's OFFICERS, THEIR APPOINTMENT, POWER, 
 AND DUTIES. 
 
 Sect. I. — The Sheriff not to let his Bailiwick to farm. — JVhat 
 Officers he should aj^poiyit. — Offices not to be sold. — 
 Replevin Clerks. — Clerk of the County Court. — 
 Deputies. 
 
 II. — The Undersheriff. — Whether he may be an Attorney, ^'C. 
 — His Oaths, his Power, and Duties. — His Office how 
 determined. — His Liabilities. — His Securities. — Du- 
 ties on entering on his Office. 
 
 III. — Bailiffs. — Perpetual Bailiffs. — Bound Bailiffs. — Special 
 Bailiffs. — Authority and Duties of Bailiffs. — When 
 the Sheriff is responsible for the Acts of his Bailiffs. 
 — How punished. — Their Security to the Sheriff. 
 
 IV. — Gaoler. — Sheriff's Jurisdiction over Gaols.- — Sheriff lia- 
 ble for default of Gaoler. — Gaoler'' s Security to the 
 Sheriff. — Regulations respecting Gaols. — Bonds to 
 the Gaoler. — Of his Fees. 
 
 Section I. 
 
 Of the Sheriff's Officers. — Appointments in General. — Replevin 
 Clerks, ^'c. 
 
 By 4 Hen. 4, c. 5, and 23 Hen. 6, c. 9, it is enacted, " that no The sheriff ig 
 
 I'/miiii /«• 1- 1 CI.- If" to le' his 
 
 sheriff shall let to farm in any manner his county, nor any oi his bailiwick lo 
 bailiwicks, hundreds, or wapentakes (a) ; and it has been resolved, '''"" ' 
 that a lease thereof, though no rent was reserved, is within the 
 
 (a) In Ellis v. Nelson, 3 Keb. 678, other provisions of the statute, it has 
 this statute was held to be a private been decided to be a public statute, 
 act} but in more recent cases, upon Samuel v. Evans, 2 T. 11. 569.
 
 28 OF THE SHERIFF S OFFICERS. 
 
 CHAP. in. statute, the intent being that the sheriffs should keep their coun- 
 ^^^'^' ^' ties in their own hands (b). 
 but may ap- This Statute does not prevent the sheriff from employing de- 
 fie's^and o"- puties in the execution of the duties of his office ; indeed, by 
 fo'bTap"!''*" several statutes, the sheriff is required to appoint an under- 
 pointed, sheriff, and at least four replevin clerks. At the time the sheriff 
 takes his oath of office, and thereby fully enters upon the duties 
 thereof, he should execute the appointments of his officers ; and 
 they, on the other hand, at the same time should be required to 
 give security for the due and faithful execution of the duties of 
 their respective offices. The under-sheriff should therefore 
 have the appointments and the securities of himself, and of the 
 other officers of the sheriff, ready to be executed when the oaths 
 are taken ; the officers of the sheriff are his under-sheriff (c), 
 bailiffs (t?), gaoler (e), replevin clerks (/), county clerks, and 
 deputies, whose duties, appointments and liabilities will be treated 
 of in this chapter. 
 Offices ander By the Statute 3 Geo. 1, c. 15, s. 10, it is enacted, " that it 
 
 the sherift'are ,,,,,-,, n i i. 11 
 
 not to be shall not be lawful to or for any person whatsoever to buy, sell, 
 sold! ' ""^ let, or take to farm, the office of under-sheriff, or deputy sheriff, 
 seal keeper, county clerk, shire clerk, gaoler, bailiff, or any other 
 person pertaining to the office of high sheriff of any county of 
 England and Wales, or to contract, promise, or grant for money, 
 or other reward or benefit, the said offices, or any of them ; 
 nor to give, take, promise, or receive, any other considera- 
 tion whatsoever for the said offices, or any of them, di- 
 rectly or indirectly, by themselves, or any person in trust for 
 them, or for their use, on a penalty of 500/., one half to the 
 king, the other half to the informer ; the action for the same to 
 be brought within two years. Provided that nothing in this act 
 shall hinder any high sheriff from constituting and appointing 
 an under-sheriff or deputy sheriff, as by law he may and ought 
 to do; nor to hinder the under-sheriff, in case of the high she- 
 riff's death, when he acts as high sheriff, from constituting a 
 deputy, which he is thereby empowered to do ; nor to hinder, 
 
 (h) 20 Hen. 7; 13 Dalt. 23; 21 office of bailiff, see the 3rd section of 
 
 Hen. 7, 36. See also Plowd. 87 ; this ciiapter. 
 
 Stockwiih I'. Nortiiy, Moor, 781. (e) See the 4th section of this 
 
 (c) For the nature and duties of llie chapter, 
 
 office of under-sheriff, see the 2nd ( _/' ) For the duties, &c., of these 
 
 section of this chapter. officers, see the latter pait of this sec- 
 
 {d) For the nature and duties of the tion.
 
 REPLEVIN CLERKS. 
 
 29 
 
 CHAP. III. 
 SECT. I. 
 
 prevent, or abridge such sheriff or under-sheriff, from demand- 
 ing, taking, or receiving the lawful fees and perquisites of his 
 office, or any place or appointment pertaining thereunto ; or for 
 taking security for the due answering the same ; nor to hinder 
 such under-sheriff, deputy sheriff, county clerk, &:c., or any 
 person executing any office under the sheriff, from accounting 
 to the high-sheriff for all such lawful fees as shall be by them 
 taken or received in their offices, &c., nor for giving security so 
 to do ; nor to hinder the high-sheriff from allowing such salary 
 or recompence to his under-sheriff, county clerk, &c., or other 
 officer, for the execution of the said offices, places, or employ- 
 ments, or any of them, as to him shall seem meet ; nor to hinder 
 or prevent the under-sheriff, &c., from taking or receiving such 
 salary or recompence for his or their pains or services therein." 
 But the sheriffs of London and Middlesex, and of Durham and 
 Westmoreland, and of towns and cities being counties of them- 
 selves, may notwithstanding this act dispose of the offices of 
 under-sheriff, county clerk, bailiff, or other officer (g-). If the 
 sheriff take a bond of his bailiff to pay 20d. for every defendant's 
 name in every warrant on mesne process, it is not letting his 
 sheriffwick to farm (/<). 
 
 By the statute 1 & 2 Phil. & Mary, c. 12, s. 3, it is enacted, Replevin 
 
 . . ... , clerks. 
 
 •' that every sheriff of shires, not being cities or towns made 
 shires, shall at his first county day, or within two months next 
 after he hath received his patent of his office of sheriff, depute, 
 appoint, and proclaim, in the shire town within his bailiwick, 
 four deputies at the least, dwelling not above twelve miles distant 
 from one another, which said deputies, so appointed and pro- 
 claimed, shall have authority, in the sheriff's name, to make re- 
 plevin and deliverance of such distresses, in such manner and 
 form as the sheriff may and ought to do, upon pain that every 
 sheriff, for every month he shall be without such deputy, shall 
 forfeit 5/., one half to the king, and the other to the informer." 
 It is usual to appoint more than four replevin clerks ; the 
 appointment is given to attorneys in each of the places of any 
 size in the county, and is usually made by letter of attorney 
 under seal («). There must be some act of appointment ; for 
 
 (g) 3 Geo. 1, c. 15, s. 21. minute in the county court book, at 
 
 (Tt) Ballaatime v. Irwin, Fortes. tiie first county court; but the other 
 
 368. raode of appointment by letter of at- 
 
 (i) See form, Append. It would torney is the best. If the appointment 
 
 be sulTicient however to make the ap- be by entry in the county court book, 
 
 pointment of the replevin clerk by a it is as follows: — "The sheriff, by
 
 30 
 
 OF THE SHERIFF S OFFICERS. 
 
 CHAP. iir. where (/i-) a replevin was granted by a person who had acted for 
 
 — — many years as clerk of replevins to several sheriff's, and had 
 
 been recognized by the then sheriff* as such, but without any 
 appointment in writing, the court granted a prohibition to 
 restrain the sheriff" from proceeding in a suit granted by that 
 person, he not being appointed to the office within the meaning 
 of the above statute. The mode of granting replevins will be 
 treated of in the chapter on the county court. A replevin clerk 
 is not bound to make personal inquiries as to the responsibility 
 of the sureties on granting a replevin ; if they be apparently re- 
 sponsible at the time it is sufficient, for he will not be liable to 
 an action at the suit of the sheriff", although they afterwards 
 turn out to have been insolvent (/). But it seems, that, although 
 the replevin clerk is not bound to go out of his office to make 
 personal inquiries, still he is bound to exercise a reasonable 
 discretion, and if the sureties be unknown to him he ought not 
 to be satisfied with their own statements as to their solvency (»«). 
 He, as well as the sheriff", is answerable to the defendant for the 
 sufficiency of all and each of the pledges («). 
 
 The office of county clerk, or clerk of the county court, is in 
 the appointment of the sheriff"; it is not usual to appoint this 
 officer (who is generally an attorney, residing at the county 
 town) by letter of attorney, but by entry or minute on the pro- 
 ceedings of tlie county court. In Mitton's case (o), it was re- 
 solved, that a grant by Queen Elizabeth of the office of county 
 clerk during the vacancy of the office of sheriff" was void, for the 
 appointment belongs to the sheriff", the county court being the 
 court of the sheriff*. Indeed it is optional in the sheriff" whether 
 he will appoint a county clerk or not(o). 
 A person to If the under-sheriff" reside at a distance from the town where 
 county court, the county court is held, the sheriff" should depute some attorney 
 of respectability at that place to hold the court for him, by letter 
 of attorney under the official seal (p). 
 
 The comity 
 clerk. 
 
 virtue of the statute in that behalf, did 
 appoint A, B. of, &c., C. D. of, &c., 
 E. F. of, &c„ G. H. of, &c., I. K. of, 
 &c., to be his deputies for granting 
 replevins within the said county." 
 
 (7c) Griffiths v. Stephens, 1 Chit. 
 Rep. 196 j see Brandon v. Hubbard, 
 2 Brod. & Bing. 11. 
 
 (l) Sutton t). Waite, 8 Moore, 27. 
 See also Hindie v. Blades, 1 Marsh. 
 27 ; S. C. 5 Taunt. 225. 
 
 (m) Jefferies v. Bastard, 4 Ad. & 
 
 Ell. 813 ; 6 Nev. & M. 303, S. C. 
 
 (n) Page v. Earner, 1 B. & P. 378 ; 
 Scott V. VVaithman, 3 Stark. 168. 
 
 (o) 4 Rep. 33. See 9 & 10 Vict, 
 c. 95, ss. 24 el seq , as to the appoint- 
 ment and duties of clerks to the county 
 courts establislied under that act. 
 
 (p) See 9 & 10 Vict. c. 95, s. 9, 
 et seq, as to the appointment, duties, 
 &c. of judges of the county courts es- 
 tablished under that act.
 
 DEPUTIES IN THE COURTS. 31 
 
 By the statute 23 Hen. 6, c. 9, it is enacted, *' tliat every chap.hi. 
 sheriff shall make yearly a deputy in the king's courts of his ^^"^' 
 
 Chancery, King's Bench, Common Pleas, or Exchequer of Record, ^Jj[^j^jfj'^ ,,^' 
 
 before they shall return any writs, to receive all manner of writs c.mhis at 
 
 J J ' _ Westminster. 
 
 and warrants to be delivered to them ;" and if any such sheriff 
 shall do the contrary, he shall forfeit 40Z. (to the king and in- 
 former) for every such default, and treble damages to the party 
 grieved. And by 1 Edw. 6, c. 10, 5 Edw. 6, c. 26, and 31 Eliz. 
 c. 9, similar provisions were made as to the twelve counties of 
 Wales, and the counties palatine of Lancaster, Chester, and 
 city of Chester. And by rules of the Court of King's Bench, 
 Hil. 23 Car. 1, and E. 15 Car. 2, the sheriffs are enjoined to 
 comply with the statute 23 Hen. 6, above mentioned ; and by 
 tlie last of these rules, the sheriff's deputies are required " to 
 give their personal attendance daily in Westminster Hall in term 
 time, that so they may, with the more convenience, dispatch 
 those services which appertain to their offices respectively" {(f). 
 And by the rule of the Court of Common Pleas, each deputy, 
 before Hilary term, shall have his name and place of residence, 
 in London and Westminster, set and continued up in tables in 
 the office of the prothonotary (r). By an order of the Court of 
 Exchequer, the sheriff is to assign his attorney or deputy, and 
 on giving his recognizance shall deliver to the clerk in the 
 remembrancer's office, the name of the attorney or deputy so 
 assigned (s). 
 
 And now the 3 & 4 Will. 4, c. 42, s. 20, enacts, that " from 3 & 4 w. 4, 
 
 c 42 s 20 
 
 and after the 1st day of June, 1833, the sheriff of each county 
 in England and Wales shall severally name a sufficient deputy, 
 who shall be resident or have an office within one mile from the 
 Inner Temple Hall, for the receipt of writs, granting warrants 
 thereon, making returns thereto, and accepting of all rules and 
 orders to be made on or touching the execution of any process 
 or writ to be directed to such sheriff." 
 
 Under the former enactments and rules it was usual to nomi- Deputy iden- 
 
 •rvi 1 J 1 1 titled with 
 
 nate the under-sheriff as the sheriff s deputy, and the under- sheriff. 
 sheriff then appointed his agent in town, who performed the du- 
 
 (9) I do not find that this rule has (s) Ord. & R. Exchequer. As to 
 been altered, but it appears to be a the force of orders of the Court of Ex- 
 dead leUer. chequer decreeing penalties, see 3 
 
 (r) R. M. 1654, C. P. Geo. 1, c. 15, s. 15.
 
 32 OF THE SHERIFF S OFFICERS. 
 
 SLCT. I. 
 
 CHAP. III. ties. And the sheriff was held liable upon engagements made 
 by an agent so appointed in the course of the office. But it was 
 considered that he was not such a deputy as that notice served 
 on him of a defendant being in the county into which the writ is 
 issued, would be sufficient to fix the under-sheriff with know- 
 ledge of that fact (t). Since the 3 & 4 Will. 4, c. 42, s. 20, it 
 seems to be considered that the deputy is identified with the she- 
 riff, and it has since that act been repeatedly held that a delivery 
 of process to the deputy is equivalent to a delivery to the sheriff 
 himself, so as to be binding from the moment of delivery (m). 
 
 Section II. 
 Of the Under-sheriff. 
 
 Of the an- But, although by the statute 23 Hen. 6, c. 9, s. 1, the sheriff 
 
 appointment is prohibited from assigning or letting to farm his bailiwick, we 
 iU!ls"'"^"' have seen he is not compelled to perform the duty of his office 
 in person. From the earliest time, the sheriff has always ap- 
 pointed a deputy ; this deputy was formerly called the sub- 
 vicecomes, seneschalus v'lce-comitis ; and in the statute of West- 
 minster 2, c. 39, he is first called under-sheriff, by which name 
 he is now styled (^ a;). Before 3 & 4 Will. 4, c. 99, the appoint- 
 ment was usually made by deed, under the seal of office ; though 
 an appointment by parol was sufficient (?/). The fifth section of 
 that act directs, that every sheriff " shall within one calendar 
 month after the notification of his appointment in the London 
 Gazette, by writing wider his hand, nominate and appoint some 
 fit and proper person to be his under-sheriff." 
 
 The same section directs the sheriff to transmit to the clerk of 
 the peace for the county, a duplicate of the appointment, which 
 he is to file amongst the records of his office, on payment of a 
 fee of five shillings. 
 
 (<) Gibbon v, Coggon, 2 Camp. that he was formerly called shire 
 
 188. clerk, but it is appreliended that this 
 
 (m) Woodland d. Fuller, 11 Ad. & is, pjoperly speaking, clerk of the 
 
 El. 859 ; Harris v. Lloyd, 5 M. & W. County Court, which offices, although 
 
 432; Williams v. Waring, 4 Dowl. generally filled by the same person, 
 
 200. aie not the same. 
 
 (x) In 9 Rep. 40, Lord Coke says, {y) Dalton, 457; 22 Hen. 7, 6, 7.
 
 THE UNDER-SHERIFF. 
 
 No Stamp is required on either the appointment or the diipli- chap. m. 
 
 , . ^ Sl-CT. II. 
 
 cate (2). 
 
 There does not seem to be any particular quahfication re- Whether the 
 
 , , . under-sherilT 
 
 quired for the office of under-sheriff; in each county, at this may be an 
 day, it is filled by some attorney of respectability. And the 
 statute of 1 Hen. 5, c. 4, that " no under-sheriff or sheriff's 
 officer shall practise as an attorney during the time he continues 
 in office," has been repealed by 7 Will. 4 & 1 Vict. c. 55. It 
 is however provided by a rule of Q. B. 1654, s. 1, " no under- 
 sheriff, or bailiff of sheriffs or liberties, be admitted, during such 
 their employment, to practise as attornies, under pain of expul- 
 sion from the employment of an attorney, and not to be re-ad- 
 mitted." But inasmuch as that rule was made while the statute 
 of 1 Hen. 5, c. 4, was in force, it is probable that it was founded 
 on a desire to carry out that statute, since the repeal of which, 
 therefore, it may be doubted whether the rule is in force or 
 whether at this day there is any legal objection to the filling the 
 office of under-sheriff by an attorney («). 
 
 Bv the statute 22 Geo, 2, c. 46, s. 14, "no under-sheriff, or Practising at 
 
 J quarter ses- 
 
 his deputy, shall act as a solicitor, attorney or agent, or sue out sious. 
 any process, at any general or quarter sef>sions of the peace to be 
 held for any place where he shall execute his office, upon pain 
 of forfeiture of 50/."; and this enactment remains unrepealed (6). 
 
 Formerly by several statutes (c), no under-sheriff, or sheriff's May be in 
 
 . „ office more 
 
 clerk, should abide or tarry in his office above one year, upon ihanayear. 
 pain to forfeit 200/. yearly, so long as such person should oc- 
 cupy such office contrary to the effect of those statutes, and 
 every man that would, might sue for the same" (d). But the 
 under-sheriff, and all other officers in the city of London and 
 Brislo], and of all other counties in which anypersons were inherit- 
 able at the time of making the statute (e), were excepted out of 
 
 (s) 3 & 4^Vill. 4, c. 99, s.5. continual being and continuing in tiie 
 
 (a) See Cox i'. Balne, 2 Dowl. & said offices, the under-sheriffs and 
 L. 720. slierlffs' cleri<s, and bailiffs, have 
 
 (b) See Faulkner r. Chevell, 5 A. grown so cunning in liieir several 
 & P:. 213 ; Briggs v. Sowton, 9 Dowl. places, as that they are able to deceive, 
 105. and may well he f'eaied that many of 
 
 (c) 42 Edw, 3, c. 9; 23 Hen. fi, them do deceive, both the king, their 
 c. 8; 6 Hen. 8, c. 18; Dallon (p. sheriff, and county." 
 
 454) says, "that under-sheriffs and (<0 See Barrett i. Johnson, 2 Jones 
 
 sheriffs' cleiks, in many places, also, Hep. Exch. Ir. 297. 
 
 do continue in their said olHces many (e) 23 Hen. 6, c. 3. These are 
 
 years together, interchanging from one Middlesev, Durham, and Weslmore- 
 
 into the other ; by leason of which land.
 
 84 OF THE sheriff's OFFICERS. 
 
 CHAP. III. the statute. And now, since 7 Will. 4 & 1 Vict. c. 55, s. 1, has 
 
 ^'^"^•"' repealed so much of the 42 Edvv. 3, c. 9, "as relates to the 
 
 time during which under-sheriffs and sheriffs' clerks may abide 
 
 in their respective offices," it seems there is no limit to the time 
 
 for which the office may be held. 
 
 Oaiiis (o be Before the statute 27 Eliz. c. 2, the under-sheriff did not take 
 
 takin by i n i i i i -n- • i ■ i 
 
 iinder-.-iie- any oath, but by that statute an under-snenrr is subjected to 
 the penalty of 40/., (one half to the queen, the other half to the 
 informer,) for executing the duties of his office without taking 
 the oath of supremacy ; and by subsequent statutes, the under- 
 sheriff was directed to take the oaths of allegiance, supremacy, 
 and abjuration, and receive the sacrament and subscribe the 
 declaration against transubstantiation, within the same time, in 
 the same manner as the sheriff. But, as before observed in 
 treating of the oaths of the sheriff himself, a declaration has, by 
 9 Geo. 4, c. 17, been substituted for taking the sacrament; and 
 by 10 Geo. 4, c. 7j declarations against transubstantiation were 
 abolished. So that the only oath now required, in additon to 
 those of allegiance, supremacy, and abjuration, or that substi- 
 tuted in case of Roman Catholics by 10 Geo. 4, c. 7, is that 
 prescribed by the statute 3 Geo, 1, c. 15, s. 19, which enacts 
 that the under-sheriff of all counties of South Britain, except 
 the counties of Wales and Chester, shall take the following 
 oath (at the same time, and before the same persons, as the 
 sheriff) (/) ; viz. : 
 
 ' 1, A. B., do swear, that I will well and truly serve the queen's 
 ' majesty in the office of under-sheriff in the county of N., and 
 ' proinote her majesty's profit in all things that belong to the 
 ' said office, as far as I legally can or may ; I will preserve the 
 ' queen's rights, and all that belongeth to the crown ; I will not 
 
 * assent to decrease^ lessen, or conceal the queen's rights, or the 
 ' rights of her franchises ; and whensoever I shall have know- 
 ' ledge that the rights of the crown are concealed or withdrawn, 
 ' be it in lands, rents, franchises, suits or services, or in any 
 ' other matter or thing, I will do my utmost to make them be 
 
 * restored to the crown again ; and if I may not do it of myself, 
 ' I will certify and inform some of her majesty's judges thereof: 
 ' I will not respite or delay to levy the queen's debts for any 
 ' gift, promise, reward, or favour, when I may raise the same 
 
 * without great grievance to the debtors ; I will do right as well 
 
 (/) For the mode of administering the oaths, see ante, p. 19.
 
 THE UNDER-SHERIFF. 35 
 
 ' to poor as to rich, in all things belonging to ray office ; I will chap. in. 
 ' do no wrong to any man for any gift, reward, or promise, nor ^' ^'^^•"' 
 ' for favour or hatred ; I will disturb no man's right, and will 
 
 * truly and faithfully acquit at the Exchequer all those of whom 
 ' I shall receive any debt, duties, or sums of money belonging 
 ' to the crown ; I will take nothing whereby the queen may lose, 
 
 * or whereby her rights may be disturbed, injured, or delayed ; 
 
 * I will truly return, and truly serve, all the queen's writs, to the 
 
 * best of my skill and knowledge ; I will truly set and return 
 ' reasonable and due issues of them that be within my bailiwick, 
 ' according to their estates and circumstances, and make due 
 
 * panels of persons able and sufficient, and not suspected, or 
 ' procured, as is appointed by the statutes of this realm ; / have 
 
 * 7iot bought, 2yurchased, or taken to farm, or contracted for, nor 
 ' have I given or promised any consideration, nor will I buy, ptir- 
 
 * chase, or take to farm, or contract for, promise, or give any con- 
 ' sideration whatsoever, by myself or any other person for me, or 
 'for my use, directly or indirectly, or any person or ptersons what- 
 ' soever, for the office of the under-sheriff of the county ofN., which 
 ' / am now to enter upon and enjoy, nor for the profits of the same, 
 
 * nor for any bailinnck thereof, or any other place or office bclong- 
 ' ing thereunto; I have not sold nor contracted for, or let to farm, 
 
 * nor have I granted or promised, for reward or benefit, by myself 
 ' or any other person for me, or for my use, directly or indirectly, 
 ' any bailiwich thereof, or any other place or office belonging there- 
 ' unto(g) ; I will truly and diligently execute the good laws and 
 
 * statutes of this realm, and in all things well and truly behave 
 
 * myself in my said office for her majesty's advantage, and for 
 ' the good of her subjects, and discharge my whole duty to the 
 ' best of my skill and power. So help me God.' 
 
 There is an indemnity act passed annually to protect persons 
 who have omitted to take the oaths of allegiance, Sec, and it lias 
 been lately determined (A), that this indemnity act extends as 
 well to those persons who have made default in not taking the 
 oath, although not at that time liable to the penalties, as to those 
 who have incurred the penalty for not taking the oaths. 
 
 (g) These woids in italics aie all cities and towns being counties of 
 
 omitted in the oath of the under- themselves; 3 Geo, 1, c. 15, s. 21. 
 
 sheriffs of London and Middlesex, (h) In the matter of Stevenson and 
 
 Durham, and Westmoreland, and of others, 2 Bar. &; Cres. 34.
 
 36 
 
 OF THE SHERIFF S OFFTCEUS. 
 
 CIIAI'. III. 
 SECT. H. 
 
 The power 
 an J Hilly ot 
 Ihe nnrifi- 
 sherili. 
 
 Ads to be it 
 the name ul' 
 llie sheriff. 
 
 'I'lie sherift', in making an under-sheriff, docs implicitly give 
 liim power to execute the ordinary and ministerial offices of the 
 sherift" himself that may be transferred by law ; as serving of 
 process and executions, making returns, and the like J) ; but 
 the judicial acts of the sheriff cannot be delegated to the under- 
 sherif!"; as to deal in writ of redisseisin, for in that the sheriff is 
 judge (j); nor in the case of a writ of inquiry of waste, where 
 the sheriff is commanded to go to the place wasted, because it 
 is personal unto the sheriff himself (/c). So in a writ of partition, 
 the sheriff must execute it in person, and cannot delegate it to 
 the under-sheriff^/). So in a writ of advancement of dower or 
 pasture, unless they are removed into C. B., the sheriff cannot 
 delegate his authority (m). And although the sheriff may do the 
 whole duty of his office in person, yet he cannot make an under- 
 sheriff for executing part of the duty of the office, and reserve 
 the residue to himself(«). Therefore it was decided, that a 
 covenant by the under-sheriff that he would not make execu- 
 tions above 20/., before he had first made known the nature and 
 quality of the writ to the sheriff, and without the special warrant 
 of the sheriff, was void and illegal ; and in an action against the 
 under-sheriff on this obligation, notwithstanding such proviso, 
 the under-sheriff was held to be liable thereon, for allowing a 
 prisoner, arrested on a writ above 40/., to escape (o). Where 
 the sheriff appointed two under-sheriffs extraordinary to hold an 
 inquest, the court, for tiiat reason, set the inquisition aside, as 
 the under-sheriff was the proper person to hold the inquest (p). 
 
 At this day, all the office and duty of sheriff is transacted by 
 
 (i) iVoiton V. Simes, Hob. 13; 9 
 Edw. 4, c. 31, 32 ; Levett r. Fartar, 
 Cro. Eliz. 294. See also 1 Roll Rep. 
 274. 
 
 (j) 11 Hen. 4. c. 7 ; 6 Rep. 12; 
 Norton v. Simes, Hob. 13. And see 
 of the writ de nativo habendo, Fitz. 
 Relorn, 32 ; Bro. Offices, 36. These 
 cases are lelained as iUustralions, not- 
 withstanding the abolition of real ac- 
 tions by 3 i 4 Will. 4, c. 27, s. 36. 
 Tiiere are iiowever cases in which real 
 actions may still be brought; see Doe 
 d. Gilbert v. Ross, 7 M. & W. 102. 
 
 {k) Norton v. Simes, Hob. 13; Cro. 
 Eliz. 10, club.; Darell v. Waburne, 
 Dyer, 204 a : Warnel'oid v Haddock, 
 Cro. Eliz. 290, cniilia- -\'or it is only 
 form. In the cases where the shf rirt' 
 ought to execute liis duty in person, if 
 
 the sheriff in such writ returnelh that 
 he was tiiere in proper person, and this 
 return be received, and the writ filed, 
 then the court cannot examine it ; for 
 the return is good, and the party can 
 have no averment against the return, 
 nor can lie have eiror; Clay's case, 
 Cro. Eliz c. 10; Dalt. 34. 
 
 (/) Clay's case, Cro. Eliz. 10. 
 
 (m) F. N.B.I 48; Dalt. 34; Noy, 
 21. 
 
 (//) Boucher r. Wiseman, Cro. Eliz. 
 440 ; see also 2 Brownl. 281. 
 
 (o) Norton v. Simes, Hob. 13 ; 
 Boucher i>. Wiseman, Cro. Eliz. 440 ; 
 Chamberlain v. Goldsmith, 2 Biownl. 
 280. See also 12 Mod. 468 ; Moore, 
 85, pi. 175; Noy, 51 ; Holt, 157. 
 
 (p) Denny i'. Trapnell, 2 Wils, 
 378.
 
 THE UNDER-SHERUlr. 
 
 37 
 
 the under-sheriff, who, however, is only a deputy, and therefore cii.ap. m. 
 all his acts must be done in the name of the sheriff; as is said ^^ '- — '~ 
 
 in the Year Book, 20 Hen. 7, 12 6, that the under-sheriff is one 
 that occupieth the place or office in the right of the high sheriff, 
 and doth all things in the name of the high sheriff. And upon 
 every writ or process delivered to the under-sheriff, he, as well 
 as the high sheriff, may, by warrant in writing, command the 
 bailiffs to execute such writ or process ; but it must be done in 
 the high sheriff's name (q). The under-sheriff, without express 
 authority from the high sheriff, may raise the posse comitatus (r). 
 So a return made by the under-sheriff cannot be disavowed by 
 the high sheriff, if he have made him his under-sheriff (s). And 
 in a recent case, on proving a deed under the official seal of the 
 sheriff, executed by the under-sheriff, it was held not to be 
 necessary to prove the authority of the under-sheriff so to do ; 
 proof that he acted as under-sheriff was sufficient; for the 
 under-sheriff, rirtule officii, has authority to do all official acts(<). 
 It was formerly held, that although the acts of the under-sheriff 
 were binding on the sheriff, and valid ; yet that the assignment 
 of bail bonds, or the like, by the clerk employed in the sheriff's 
 office, was not sufficient (u) ; but it is now holden, that an assign- 
 ment of a bail bond or return made in the sheriff's name, by a 
 person generally employed in the sheriff's office, is valid and 
 binding on the sheriff(i;). The under-sheriff, however, cannot 
 appoint a deputy to execute a writ of trial (?;'). 
 
 The under-sheriff has no estate or interest in his office (a-); h..w ihc 
 
 , , . , 1 1 •/!• Ml 1 "rticf ot tin- 
 
 tor the sheritt can only appomt tlie under-sherili at will, as the ,kt si.crin 
 
 under-sheriff is in effect but the sheriff's deputy; and, there- (erniinc<i.^" 
 fore, according to the nature of a deputation, must be remov- 
 able, as an attorney is ; so tliat if the sheriff should express 
 that the appointment should be irrevocable, yet he may remove 
 him; for it is said to be necessary, both for the public service 
 and for the indemnity of the sheriff, that he be removable (?/). 
 Of course the under-sheriff's power and authority determine on 
 the sheriff's discharge. Formerly by the death of the sheriff 
 
 (</) Dail. 103. Ci) Francis y. Neave, 6 J. B.Moore, 
 
 (r) Dalt. 104. 120 ; S. C. 3 Brod. & Ring. 26 ; Bac. 
 
 (s) 16 Hen. 4, 7, 6 ; 9 Rep. 3. Abr. tit. Sheriff {H.) 3. 
 
 (0 Doe (/. James r. Brawn, 5 Bar. (w) Jones v. Williams, 7 Dowl. 
 
 & Aid. 243. 938. 
 
 (■») Kidson v. Fagg, 1 Sir. 60; (;i) Parker i'. Kelt, Salk. 95. 
 
 S. C. 10 Mod. 288. (ii) Norton v. Simes, Hob. 13.
 
 OF THE SHERIFF S OFFICERS. 
 
 CHAP. 111. 
 SFCT. II. 
 
 (luring his shrievalty, the authority of the under-sheriff was 
 determined; but, by the statute 3 Geo. 1, c. 15, s. 8, it was 
 enacted, " that if any sheriff shall die before the expiration of 
 his year, or before he be superseded, the under-sheriff, or deputy 
 sheriff, shall nevertheless continue in his office, and execute the 
 same in the name of the deceased sheriff, till another sheriff be 
 appointed and sworn; and the under-sheriff shall be answerable 
 for the execution of the office during such interval, as the high 
 sheriff' would have been ; and the security given by the sheriff 
 and his pledges shall stand a security to the king, and all persons 
 whatsoever, for the due performance of his office during such 
 interval." The courts will not grant a rule absolute for an 
 attachment for not bringing in the body, in the first instance, 
 against an under-sheriff, where the sheriff has died during the 
 year (?/) ; nor does it appear to be settled, whether or not the 
 under-sheriff would be liable to be attached for not bringing in 
 the body after the death of the sheriff, where the sheriff in his 
 lifetime had returned cepi corpus [z). 
 
 If the return to a writ be false, or there be any neglect of 
 duty by the under-sheriff or bailiffs, the sheriff is alone respon- 
 sible to the party injured; attachments are always granted 
 against the sheriff, and not against the under-sheriff; so no 
 action will lie against the under-sheriff for any default in him, 
 but the sheriff is answerable, and the default is a naatter to be 
 settled between the sheriff and under-sheriff(«). But the sheriff 
 is not answerable criminally for the acts of the under-sheriff un- 
 sanctioned by him {b). 
 The security Dalton recommended sheriffs to keep their office in their own 
 fi'n^er.sheriff, houscs, in Order to prevent themselves from being injured by 
 mulrdo/o'ii their under-sheriffs, which recommendation has been long un- 
 ment^'"""'' attended to; the sheriff, however, should take security from the 
 under-sheriff to save himself harmless. It seems extraordinary 
 that it should for a long time be made a question, whether or 
 not covenants from the under-sheriff to the sheriff for duly exe- 
 cuting the office were void by the statute of 23 Hen. 6, c. 9: 
 
 Sheriff's !ia- 
 bliily lor his 
 
 (y) Anon. 2 Chit. Rep. 389. 
 
 (s) Id. ibid. 
 
 (a) Cameron v. Reynolds, Cowp. 
 Rep. 406. See also 2 Hhi. Rep. 832; 
 3 VVils. 314; Dougl. 40. Sed vide 
 Cas. in B. R. 454, cited in Bac Abr. 
 aheriff ( H.) 3. A nd qiim-e, whether 
 an action for a false lelurn may not be 
 
 brought against the under-sheriff. In 
 Ireland all actions may, by express 
 enactment, 57 Geo. 3, c. 68, s. 3, be 
 brought against the under-sheriff, 
 unless for the immediate act of the 
 sheriff. 
 
 {!)). Latch. 187.
 
 THE UNDER-SHERIFF. 3! 
 
 the legality of such securities is now clearly established (c). But chap. m. 
 any covenant, or proviso, excepting or reserving any part of the ^^"' "• 
 office, in the security from the under-sheriff to the sheriff, is 
 void and contrary to law; though such exception does not make 
 the security void in foto{d). The under-sheriff frequently finds 
 sureties to join with him in indemnifying the sheriff, but it is 
 optional with the sheriff whether he will take the security of the 
 under-sheriff alone or not. The form and extent of the terms 
 of the under-sheriff's bond are nearly the same in all counties, 
 the under-sheriff covenanting for the performance of all the 
 duties of the office ; a form thereof will be found in the Ap- 
 pendix. The under-sheriff should have his security ready, and 
 execute it, with his sureties, if any, at the time that he and the 
 sheriff take the oaths of office, at which time it is usual for the 
 sheriff to execute the appointment of the under-sheriff (e). 
 
 b»ilitt'8. 
 
 Section III. 
 Of the Bailiffs. 
 
 The sheriff's officers, called bailiffs, are of three kinds. The Perpetual 
 first, perpetual bailiffs, or bailiffs in fee, who have by charter or 
 prescription the execution of writs within the guildable (/). 
 These bailiffs are different from baihffs of franchises, for per- 
 petual bailiffs of the guildable have not the return of writs, but 
 the sheriff must make the return of a writ executed by such 
 bailiffs (g-). 
 
 Secondly, common bailiffs, (called, in the old books, bailiffs Bound 
 errant), who are also called bound bailiifs. Tliese are the or- 
 dinary officers of the sheriff, and are bound in an obligation 
 with sureties for the faithful discharge of the duties which they 
 are appointed to perform (A). In Cumberland (i) and in Corn- 
 
 (c) Cartwrightv.Dalesworth, Moor, charges, est appel leguildable ; et si us- 
 542. See also Norton v. Simes, Hob. cnn special tihertu la soit, ceo est apitel 
 13; Bac. Abr. 67ie)/^' (H.) 2. le franchise.'' " Et cen parol gnilde, 
 
 (d) Sir Daniel Ivlorton v. Simes, est un brotherhood, society, ou company 
 Hob. 13; Boucher v. Wiseman, Cro. incorporate." 
 Eliz. 440. (g) Dalt. 185, 187. 
 
 (e) Ante, 32. (/i) See form of a bailiff's obligation, 
 (/) Dalton distinguishes thegi(i7rf- post. Append. 
 
 able from dL franchise thus, " liel part (02 Bla. Rep. 952 ; Taylor i-. Ri- 
 
 Ael county ijue est contrihntary inter chardson, 8 T. H. 505. In Higgins 
 eux mesmes, a payer tribute ou common v. IM'Adam, 3 Y. ifc J. 3, it is said
 
 40 OF THE SIIKRIFF's OFFICERS. 
 
 CHAP. 111. wall (/,") it would appear there are no boiuul bailiffs. In ob- 
 ''^^'^' '"• serving upon the slierid' of Cumberland iiaving no bound bailiffs, 
 Lord Kenyon, C. J., is reported to liavc said, " What protection 
 the sheriff of Ciniiberland lias in cases of this kind that other 
 sheriffs have not, it is not necessary to inquire in this case; but, 
 though he may not have bound bailiffs, he may perhaps learn, 
 whenever the question arises, that he is bound, like all other 
 sheriffs, either to execute the writ personally, or to procure it 
 to be executed by some other person for whom he is respon- 
 sible" (/). 
 Special Thirdly, special bailiffs : these are officers appointed by the 
 
 ''^''""' sheriff merely for the execution of a particular writ at tiie in- 
 
 stance of the plaintiff(m). 
 
 Questions have often been raised as to what is sufficient evi- 
 dence of the appointment of a special bailiff. It has been held, 
 that a mere request to a sheriff' to deliver his warrant to a par- 
 ticular officer did not amount to such an appointment, because 
 " in point of practice particular bailiffs are employed by certain 
 attornies to perform all the duties of their office" (m). But the 
 following letter from the plaintiff has been held to amount to 
 such an appointment, — " Myself against D. I enclose you a 
 writ herein, and shall feel obliged by your granting a warrant 
 hereon, directed to Mr. M. and Mr. B. I shall write to Mr. B. 
 in a day or tvvo"(o). So, where the plaintiff^'s attorney requested 
 that the warrant on a ca. sa. might be addressed to a particular 
 officer, himself delivered the warrant to that officer, took him 
 in his carriage to the place of arrest, and overruled doubts which 
 he entertained as to the legality of the arrest ; it was held, that 
 the officer must be considered as a special bailiff'(p). 
 Liability foi Where a special bailiff' has been appointed at the instance of 
 .cismspeciai ^^^^ plaintiff, the sheriff is not in general liable to be ruled by 
 the plaintiff' to return the writ(y). But under special circum- 
 
 that in Cumberland there are bound 558; Corbet v. Brown, 6 Dowl. 794 ; 
 
 bailiffs, but each warrant is made out Alderson u. Davenport, 13 M.&W. 42. 
 and delivered lo a special bailiff ap- (o) Ford v. Leche, 6 Ad. & El. 
 
 pointed hy the party on an indemnity 699; 1 N. & P. 737, S. C; sed qatere, 
 
 given to sheriff'. see Alderson v. Davenport, ubi aiip. 
 
 (k) 1 Dowl. 6c Ry. 309. (p) Doe v. Trye, 5 N. C. 573 ; 7 
 
 (0 Taylor v. Richardson, 8 T. R. Scott, 704, S. C. 
 505. (q) De Aloranda v. Dunkin, 4 T. R. 
 
 (m) It is usual and advisable, in ail 119; Hamilton v. Dalziel, 2 Blac. 
 
 cases when a special bailiff' is ap- Rep. 952 ; and if such a rule be ob- 
 
 pointed, to take an indemnity, a form tained, the Court will discharge it on 
 
 wht-reof will be found, ;;wf. Append. motion, where a special bailift'has been 
 
 (^n) Balson i. Meggatt, 4 Dowl. appointed.
 
 THE BAILIFFS. 41 
 
 Stances (of which notice should be given him and an indemnity chap. m. 
 offered) he may be so ruled. For instance, where aji.fa., after „l^^llj^ 
 seizure, has by reason of an adverse claim turned out abortive, 
 and the plaintiff requires a return of nulla bona to enable him 
 safely to sue out a ca. sa. (r). The appointment of a special 
 bailiff also frees the sheriff from liability to any action or suit 
 of the plaintiff for irregularity of the bailiff in the execution of 
 the process (s). And no liability in such case accrues to the 
 sheriff until the duty of the special bailiff is exhausted ; for in- 
 stance in case of arrest on a ca. sa., not until the party is arrested 
 and delivered into the actual custody of the sheriff (i). There- 
 fore, where a sheriff, holding a capias at suit of R. against D., 
 received from F. a capias at suit of F. against D., together with 
 an appointment by F. of M, and B. as special bailiffs, and then 
 issued a warrant to M. on the writ at the suit of R., whereupon 
 D. was arrested, gave a bail-bond, and was thereupon allowed 
 to go at large by all who at the time had not received any warrant 
 at suit of F. ; it was held, that although the actual arrest at suit 
 of R. was a constructive arrest at suit of F., yet that the agency 
 of M. and B. did not cease when the arrest was made, and that 
 the sheriff was not liable {n). But in such a case the sheriff 
 would be liable alter the duty of the special bailiff is performed, 
 e. g., the arrest made and the prisoner delivered into the actual 
 custody of the sheriff (v). These questions obviously can only 
 arise between the person who has appointed the special bailiff . 
 and the sheriff. To all other persons the sheriff (as well as the 
 plaintiff) must answer for the acts of the officer who holds his 
 warrant, whether under a special or common appointment. A 
 special bailiff is subject to the same liabilities for extortion and 
 other misconduct as an ordinary bailiff (^«'). 
 
 Bv the sheriff's oath he swears, that " he will take no bailiffs Quai.ficaiions 
 
 J tor the office. 
 
 into his service but such as he will answer for, and shall cause 
 them to take such oaths as he liimself does, in what belongcth to 
 their business and occupation." And there is a statute, neglected 
 in practice, which directs that sheriffs shall put in such bailiffs 
 
 (»•) Hauling r. Flol.ier, 9 Dowl. C. 573 ; 7 ScoU, 704, S. C. 
 
 659 ; 2 Man. & Gr. 914 ; -i ScoU, N. (l) Ford v. Leche, ubi supra. 
 
 R. 293, S. C. See Bradley i'. Cair, (n) Ibid. 
 
 Scott, N. R. 523. {v^ Taylor v. Richardson, 8 T. R. 
 
 (s) Pallister v. Pallister, 1 Chit. 505. 
 
 R. 614; Porter i'. Viner, ib. 613 a ; (w) See Plevin v. Priace, 10 Ad.<k 
 
 Ford r. Leche, 6 Ad. & El. 699; IN. El. 494; and as to liability of bailifFs, 
 
 & P. 737, S. C. ; Doe v. Trye, 5 N. post, 44, 45.
 
 42 
 
 OF THE SHERIFF S OFFICERS. 
 
 CHAP, iir, 
 SECT. iir. 
 
 Difqnalifi- 
 calions by 
 reasou of llie 
 office. 
 
 The bailiff's 
 aiKhorily, 
 how derivet'. 
 
 and liundredors having land within the said baih'vvicks and 
 hundreds for whom they will answer (i:). It seems tliat inas- 
 much as the office of bailiff is one of responsibility and trust, it 
 cannot properly be intrusted to an infant (?/). 
 
 By rule of the court of K. B. 1654, a sheriff's officer was 
 prohibited from being an attorney, and until lately there was a 
 statutory prohibition to the same effect in 1 Hen. 5, c. 4 ; but 
 since the repeal of that statute by 7 Will. 4 & 1 Vict. c. 55 (z), 
 it may be doubted whether the prohibition by the rule of 1654 
 is any longer in force. By rule of court, C. B., M., 14 Geo. 2, 
 no sheriff's officer, bailiff, or other person, concerned in the 
 execution of process, shall be bail in any action ; which rule 
 prevails in practice in Q. B. and Exchequer (a). 
 
 When the sheriff appoints a bailiff, he cannot abridge him of 
 his power (6). The bailiff is not, however, the general recog- 
 nized officer of the sheriff, like the under-sheriff (c) ; it is from 
 the warrant, and not from his appointment as a sheriff's officer, 
 that the bailiff derives his authority to execute the writ ; there- 
 fore the act of a regular sheriff's bailiff in the execution of pro- 
 cess, is not sufficient to fix the sheriff with a liability for such act, 
 without proving the warrant (c/) ; therefore, if a bailiff make an 
 arrest before a warrant is delivered to him, he is a trespasser, nor 
 will a warrant subsequently sealed and delivered to him legalize 
 the arrest (e). If the warrant be directed to one bailiff and he 
 adds the name of another bailiff (/), or if the warrant be issued 
 in blank and the bailiff's name be afterwards inserted (g), the 
 persons whose names are so added or inserted would be tres- 
 passers for taking the defendant or his goods under such an 
 authority. But it seems sufficient, if the bailiff's name be inserted 
 before the warrant is given out of the sheriff's office, though after 
 the sealing (A). And a mere verbal mistake does not vitiate the 
 
 !\nd see 3 Stark. Ev. 
 
 (i) 14Ed. 3, s. l,c. 9. 
 
 (v) Cuckson V. Winter, 2 Man. & 
 Ry."313. 
 
 (z) Overlooked, as it seems, in fram- 
 ing the 2nd sciied. to 6 & 7 Vict, c, 73. 
 
 (a) Ante, 33. See Doldern v. Feasi, 
 Stra. 890. A person employed by the 
 sheriff in warning juries is within this 
 rule. Bolland r, Fritchard, 2 Bla. 
 Rep. 799. And this applies to officers 
 of the palace-court being bail in the 
 superior courts, Barnes' Supp. 9. 10. 
 
 (6) 2 Brownl. 283. 
 
 (c) Drake v. Sykes, 7 T. R. 113. 
 
 (d) Id. ibid. 
 1337. 
 
 (e) Hall V. Roche, 8 T. R. 1 87. See 
 Plomer v. Bull, 5 Ad. & El. 823. The 
 defendant may be arrested again on a 
 proper warrant. 
 
 (/) Houssia V. Barrow, 6 T. R. 
 122. 
 (g) Burslem v. Fern, 2 Wils, 47, 
 (//) Rex V, Harris, 1 Russell on 
 Crimes, 513 ; 1 East, P. C. Add. 18 ; 
 2 Leach, C.C. 920; Rex v. Stockley, 
 1 East, P. C. 310 ; Foster, 312 ; Ste- 
 venson's case, 19 State Trials.
 
 THE BAILIFFS. 43 
 
 warrant (i). The authority given by the warrant, being for the chap. m. 
 administration of justice, is not to be strictly construed ; there- sect, hi. 
 fore, on a warrant to four bailiffs, jointly and severally, two may 
 execute it (k) ; but if the warrant be to several jointly but not 
 severally, they must all be acting in the execution of it (/). As 
 to when a warrant to the bailiff of a liberty may be acted on as 
 an ordinary warrant to the sheriff's bailiff, and when not, see 
 post, Chapter 4 (m). 
 
 The mode and time in which the bailiff must execute his duty His duly in 
 on writs directed to him, will be the subject of several of the wViis. 
 following chapters of this work. It has been said, that in exe- 
 cuting a writ it is not necessary for the known officer of the 
 sheriff to show his warrant, although the party demands it (n) ; 
 nor is any other bailiff bound to produce his warrant without a 
 demand of it (o). But it has been doubted whether or not every 
 officer is not bound to produce his warrant, on making an arrest, 
 if it be demanded (p). When an officer makes an arrest, or the 
 like, he ought to show at whose suit, out of what court, and for 
 what cause he makes the arrest {q). 
 
 An undertaking made to the bailiff to put in good bail, in Promises to 
 consideration of his discharging a person arrested by him on '" ' '" 
 mesne process, is void by the statute 23 Hen. 6, c, 9(r). So 
 a promise to pay the bailiff a sum of money for admitting to bail 
 a defendant in his custody on mesne process, is void ; for, by 
 23 Hen. 6, it is his duty to admit such persons to bail, and a 
 promise made in consideration of the bailiff's doing his duty is 
 nudum pactum (s). But in one case, a promise made to a bailiff, 
 on the behalf of the plaintiff, in consideration of allowing a pri- 
 soner to remain in the house of a third person all night, was 
 held good (t). 
 
 (i) Williams «. Lewis, 1 Chit. 611. (/)) Hall v. Roche, 8 T. R. 188. 
 
 (k) White V. Wiltsliiie, Palm. 52 ; " It is very important that in all cases 
 
 Lashbroke's case, Mut. 127 ; Rex r. where an arrest is made by virtue of a 
 
 Hobbs, Cro. Eliz. 913; S C.Yelv.25. warrant, the warrant, if demanded at 
 
 (/) Boyd V. Durant, 2 Taunt, 161. least, sliould be produced." — Per Lord 
 
 (?n) And see Jackson V. Hill, 10 A. Kenyon. 
 
 & El. 477. (q) Macalley's case, 9 Rep. 69; 
 
 (») Macalley's case, 9 Rep. 69, The Duchess of Rutland's case, 6 Rep. 
 
 6ih Resolution. Lord Coke there says, 54 a. 
 
 " Where the books speak of a known (r) Rogers v. Reeves, l.T. R. 418. 
 
 bailiff, it is not requisite that he be (s) Stotesbury t;.Smith,2Burr.924. 
 
 known to the party who is to be ar- (t) Benskin v. French, 1 Sid. 132 ; 
 
 rested, but if he be commonly known S. C. 1 Lev. 98, recog. T. Jones, 139 j 
 
 it is sufficient." and per Buller, J., 1 T. R. 422. 
 
 (o) /(/. ibid.
 
 44 
 
 OV THE SHERIFF S OFFICERS. 
 
 CHAP. in. The sheritiis responsible for all the acts of his bailiff" done in 
 
 SECT. ui. the execution oi" \viits(?<\ directed to the slieriH' in his niinis- 
 
 Rcsponsibi; terial capacity (v) ; but he is not liable to be indicted for tlic acts 
 
 Illy ot slieriH » J \ ■/ ^ 
 
 aiui haiiitt for of his officcr (<). " It is a tieneral rule that the law looks to 
 
 acts (tone by ^ ' _ " _ 
 
 the bailirt. the sheriff, and to him alone. He is responsible even for the 
 bailiff's wilful mtscondnct or deliberate fraud. ' He is identified 
 with his officers in every case, except where, as in Crowder v. 
 Long ( 7/), the party opposed to the sheriff is colluding with the 
 officer (;3).' " And his civil responsibility is not confined to the 
 improper manner of executing what is commanded by his war- 
 rant, but extends to all acts, however wrongful, provided they 
 be done under colour of the writ (a) ; even though against the 
 sheriff's express instructions [b). Thus the sheriff is liable 
 where his officer, in executing a writ against the goods of A., 
 takes the goods of B. (c), or takes the person instead of the 
 goods of the debtor^ under aJL fa. {d), or receives the debt and 
 costs when he ought to have arrested (e). So where a bailiff in 
 possession of goods under a distress received a f. fa. from the 
 sheriff, and sold the goods under it, the sheriff was held liable for 
 poundbreach and rescue at the suit of the landlord (/). And the 
 sheriff, though morally innocent, is liable to the consequences of 
 a fraud perpetrated by his officer, e.g. in procuring an indemnity 
 bond(g). Also for the extortion of his officer (/«), and to a 
 penal action on the 32 Geo. 3, c. 28, for an offence of his officer 
 under that ac\.(i). And so it was held, that a rjui tarn action 
 would lie against the sheriff on the statute 44 Geo. 3, c. 1^, s. 1. 
 
 (u) Saunderson v. Baker, 2 Bla. 
 Rep. 832 : S. C. 3 Wils. 309. See 
 also 2 Keb'. 352. 
 
 (i;) Not in case of wiits issuing out 
 of county court, in whicli he exercises 
 a. judicial capacity. Tunno v. Morris, 
 4Dovvl. 225 ; 2 C. M. & R. 298, S. C. 
 
 (a) Laycock's case, Latch, 187; 
 S.C. Noy,90,perGoul(l, J.; 3 Wils. 
 316. See R. v. Hu2;gins, 2 Lord 
 Raym. 1880. 
 
 ( y) 8 B. & C. 598 ; 3 Man. & Ry. 
 17, "S. C. See Cook j;. Palmer, 6 B. 
 & C. 739 ; 9 Dow. & Ry. 723, S. C. 
 
 (s) J. W.Smith's Mercantile Law, 
 129 (w), referring to Raphaels. Good- 
 man, 8 Ad. & El. 565 ; Smart v. 
 HuUon, ibid. 568, n. 
 
 (a) Secus, if not under colour of 
 the writ. See Cook r. Palmer, 6 B. 
 & C. 739 ; 9 Dowl. & R. 723, S.C. ; 
 
 Tomkinson v. Russell, 9 Price, 287 ; 
 Bowden v. Wail h man, 5 Moore, 183 ; 
 Stuart V. VVliitaker, 1 Ry. & M. 310. 
 
 (6) Scarfe v. Halifax, 7 M. &W. 288. 
 
 (c) Saunderson v. Baker, 3 Wils. 
 309 ; S. C. 2 Bla. Rep. 832 ; Ack- 
 worth V. Kempe, Uoug. 40. 
 
 (rf) Smart v. Hutton, 8 A. & E. 
 568, n. 
 
 (e) Woodman v. Gist, 8 C. \ P. 
 213, Litlledale, .L 
 
 (J ) Reddell v. Stowey, 2 M. cc 
 Rob. 358. 
 
 (g) Raphael v. Goodman, 8 Ad. 
 & El. 565. 
 
 {h) Woodgale v. Knatchbull, 2 T. 
 R. 148. 
 
 (i) PechelU'.Layton,i(Z. 712,512. 
 See Plevin v. Prince, 10 Ad. & EI. 
 494 ; Barsham v. Bullock, 10 Ad. Sc 
 El. 23, and post.
 
 THE BAILIFFS. 45 
 
 where the bailiff had discharged a seaman in his custody on chap. m. 
 
 giving a bail-bond, instead of delivering him to the commander l !_ 
 
 of one of her majesty's ships, as required by that statute (j). 
 In that case it was urged in argument, that the bailiff who dis- 
 charged the seaman at all events was liable to the penalties of 
 that act ; to which Lord Ellenborough, C. J., replied, " That is 
 not so clear ; for if the sheriff were made responsible for the 
 acts of his own oflicers, I am not prepared to say that any of his 
 bailiffs would be liable to the penalty." Whether or not the 
 bailiff himself be liable to penalties under similar acts of parlia- 
 ment, where bailiffs are not expressly mentioned (k), may be 
 questionable, but it seems that the court would not allow penal- 
 ties to be recovered against both the sheriff and his officer (/). 
 The bailiff is liable to an action if he commit a trespass in the 
 execution of the writ, although the sheriff is also responsible. 
 But for negligence or misfeasance, or nonfeasance in executing 
 a writ, to an action by the person at whose suit such writ issued, 
 the sheriff is alone responsible (?h). Where an action is brought 
 against a bailiff for what he might lawfully do in the execution 
 of the writ, he shall not be prejudiced by the sheriff's return (n). 
 I'he liability of the sheriff for the acts of special bailiffs has 
 been already discussed (o). 
 
 What has been said above as to the liability of the sheriff Liability for 
 refers to cases where he is a ministerial officer, and the process county court, 
 is directed to him ; but he is not liable, merely as sheriff, for the 
 wrongful acts of his bailiffs in executing other process. For 
 instance, he is not in ordinary cases liable for the wrongful act 
 of a bailiff to whom process out of the county court (of which the 
 sheriff is a component part though not judge) (p) is directed (q). 
 But he would be liable even on such process if he directed it to 
 a special bailiff, taking an indemnity (>). 
 
 Bailiffs in some cases have been punished summarily by the How punish- 
 ed for mis- 
 
 (j) Stuimy, q. t. y. Smith, 11 East, (p) Jones v, Jones, 5 M, & W. 
 
 25. See also Stanvvay, q. 1, v. Perrv, 523. 
 
 2 Bos. & Pat, 157. " (7) Tinsley v. Nassau, M, & M. 
 
 (k) See where lliey are, Plevin i-. 52 ; 2 C. & P. 582, S. C. ; Tunno v. 
 
 Prince, 10 Ad. & E\. 494. Morris, 4 Dowl. 224 ; 2 C. M. & R. 
 
 C/) Pechell r, Layton,2T. R.7J2. 298, S. C. ; Pitcher i'. King, 9 Ad. & 
 
 (?/() Cameron v. Reynolds, Cowp. El, 288 ; 1 Per. & Dav. 297, S. C. ; 
 
 403. vvhere a false return was alleged to 
 
 (11) Parkes v. Mosse, Cro. FJiz. have been made by tiie sheritt's direc- 
 
 181. And see Shaw v. Simpson, I tion. 
 
 Lord Raym. 184. (r) See Rradley v. Carr, 3 Scott, 
 
 (0) Ante, 40, 41. N. R. 523.
 
 46 OF THE sheriff's OFFICERS, 
 
 CHAP. III. courts. The courts are empowered by statute in some cases 
 SECT. Ill, ^^ijich will be mentioned in their proper places to redress offences 
 of bailiffs on petition ; and also, if bailiffs, in executing the pro- 
 cess of a court, behave themselves illegally or oppressively, it 
 has been said that the court would punish them on motion (r). 
 Where a sheriff's officer had been guilty of outrageous conduct 
 in arresting a defendant, the plaintiff not being cognizant of such 
 conduct, the court, on discharging the defendant, ordered the 
 officer to pay the costs (s). But a sheriff's bailiff cannot be 
 considered, like an attorney or the sheriff himself, as an officer 
 of the superior courts, and therefore the courts have no power 
 summarily to compel a bailiff to fulfil an undertaking (t). 
 Sheriff's re- jf the sheriff be damnified by the act or negligence of his 
 
 medy against m'/vj it* 
 
 baiiitf'8 sure- officer, he has his remedy over on the bailin s bond. It is es- 
 sential to aver, in an action by the sheriff against the surety of a 
 bailiff, for a default by him in executing a writ, that the warrant 
 was delivered to the bailiff, and it seems to be necessary to aver 
 also that the warrant was directed to the bailiff(«). And where 
 a gaoler was under covenant to perform duties relative to re- 
 moval of prisoners, and had given a bond with sureties for due 
 performance of his covenants, and the sheriff directed a warrant 
 for removal to the gaoler and J. S. " by him, the sheriff for that 
 time only, thereto especially appointed," and J. S. permitted an 
 escape, it was held, that, as the sheriff had specially appointed 
 J. S., the sureties were not liable (w). The sureties are liable 
 only for the due performance of acts within the scope of the 
 officer's duty ; therefore they have been held not liable for money 
 received under an agreement entered into by the officer on the 
 sale of goods taken in execution, in entering into which he had 
 exceeded his authority (w) . 
 
 An action may be maintained by the sheriff against the sureties 
 on covenant to indemnify from the costs, &c, touching or con- 
 cerning any matter whereby the bailiff should act as bailiff, and 
 to indemnify him from all damages, losses, costs, &c. by reason 
 
 (j) Park and Percival v. Evans, 18, cit, 2 Saiind, 414. 
 
 Hob. 62. See i/;.263, 264. (v) Ryland v. Lavender, 9 Moore, 
 
 (s) Taylor v. Evans, 1 Bing. 367 j 71. 
 
 S. C. 8 Moore, 398. (w) Cooke v. Palmer, 6 B. & C. 
 
 (0 Brown v. Gerard, 1 C. M. & 739; 9 D. & R. 723 See Webb v. 
 
 R.595; S. C. 3 Dowl. 217. James, 7 M.& W. 279, and cases there 
 
 (it) Desanges v. Priestley, 3 Moore, cited by E. V. Williams, argnendo. 
 246. And see Horton v. Day, Sty.
 
 THE BAILIFFS. 
 
 47 
 
 SECT. iir. 
 
 of any return, &c. where costs or loss have been incurred by chap. hi. 
 
 1 > r> 1 • ernT TTr_ 
 
 him in defending an action, if he has been damnihed m conse- 
 quence of any act done by the bailiff, although the bailiff may 
 not have done any thing wrong in the matter wherein he acted, 
 in respect of which the action had been brought against the she- 
 riff, or the loss had been sustained (a-). Thus where the bailiff 
 dictates a return of nulla bona, being a correct return, and the 
 sheriff is sued on it as a false return, and is put to expense in 
 defending the action, he may recover his expenses against the 
 bailiff, or his sureties, under the general clause of the covenant 
 to indemnify, there being nothing put on the record impugning 
 either the act or mode of defending the action (?/). In averring 
 the damages sustained and the costs the sheriff has been put to, 
 it is not necessary to allege that they were necessarily sustained, 
 if the averment, pursuing the terms of the covenant, have no 
 such qualification ; nor is it necessary to aver the misconduct of 
 the bailiff, if the covenant apply to the acts of the bailiff gene- 
 rally (z). And if a sheriff defend an action for a false return as 
 well as he can, he may recover his costs from the sureties, though 
 he has a verdict against him on thegromid that evidence was not 
 produced, which in another and subsequent suit between the 
 same parties, involving the same question, was obtained (a). If 
 in such an action, after he has obtained a rule nisi for a new trial, 
 he compromises the suit with the assent of some of the sureties, 
 by paying a less sum for damages than would be recoverable, 
 and a less sum for costs than were incurred, he may recover his 
 own costs against a surety who did not assent, if it appear that 
 the compromise was under such circumstances reasonable (6). 
 In such a case the words " costs of any application to the court 
 touching or concerning any matter wherein the bailiff should act 
 or assume to act as bailiff," comprise the costs of an application 
 to the court to set aside the judgment on which the execution 
 was founded, the return to which gave rise to the action against 
 the sheriff (c). A surety cannot discharge himself of his obliga- 
 tion within the year, without the consent of the sheriff (r?). 
 
 (.r) Fairbrother v. ^Vorsley, 1 Price, (a) Ibid. 
 
 P. C. 65; 1 Tyr. 424; I'C. & J. (6) Ibid. 
 
 549 ; 5 C. & P. 102. (c) Ibid. 
 
 (y) Ibid. (d) Martin v. VVenman, Lofft, 225, 
 
 (e) Ibid. *■
 
 48 
 
 OF THE SHKRIFF S OFFICERS. 
 
 CHAP. HI. 
 
 SECT. IV. 
 
 Of llie juris- 
 diction of tlie 
 sheiiffs over 
 gaols. 
 
 Section IV. 
 
 Of the Gaoler {e). 
 
 Every county has two kinds of gaol ; viz. one for debtors, 
 which the slier iff may appoint in any house within his county 
 that he pleases ; and the other gaol for breakers of the peace, 
 and matters of the crown, which is the county gaol (/). And 
 although all gaols and prisons regularly belong to the king, yet 
 the sheriff, or the lord of a franchise, shall have the custody 
 and keeping of all persons taken by virtue of any precept or 
 authority to him directed, notwithstanding any grant by the 
 king of the custody of prisoners to another person (^). By 
 
 (e) It would be altogether out of 
 place to introduce in this work even 
 an outline of the various statutory re- 
 gulations by which gaols and gaolers 
 are governed. These subjects will be 
 found fully treated of in Chit. Burn's 
 Justice (29th edit.) tit. Gaoh: and 
 see 4 Geo. 4, c. 64 ; 5 Geo. 4, c. 84, 
 85; 6Geo.4, c. 40; 7 Geo. 4, c. 18; 
 9 Geo. 4, c.31; 5 &6 Will. 4, c.38, 
 76 ; 5 & 6 Will. 4, c. 53, 98 ; 2 & 3 
 Vict. c. 56 ; 5 & 6 Vict. c. 98. This 
 section will be confined to a general 
 statement of the law affecting the re- 
 lation of sheiifF and gaoler. 
 
 (/) Anon. Latch, 16; Vin. Abr. 
 til. Gaoh (A). 
 
 (o-) Mitten's case, 4 IJep. 44; T. 
 Raym. 423. In Bac. Abr. 6th edit, 
 lit. Gaols and Gaoler {B), an ojiinion 
 of the Attorney and Solicitor Generals, 
 De Grey and Wiiies, is quoted, which 
 was presented to the king, 21 Jan. 
 1767, touching a dispute between tiie 
 Bishop of Ely on the one hand, and 
 the inhabitants of that liberty on the 
 other, as to the obligation to repair 
 the gaol ; the passage cited is as fol- 
 lows : " Although all gaols, whether 
 in counlies at large, or in particular 
 franchises, are deemed to belong to 
 the crown, as far as the public admi- 
 nistration of justice is concerned, and 
 it is but the custody of them which is 
 placed in the hands of the sheriff, or 
 the lords of tiie franchise ; yet we are 
 not able, in a matter which lies buried 
 in much obscuiily, and has scarcely 
 ever been called into discussion in 
 
 modern times, to find upon what au- 
 thority a great writer in our law has 
 inferred from the position, ' that all 
 prisons belong to the crown, they are, 
 therefore, to be repaired at the common 
 charge.' Nor does it appear by whom, 
 and from what peisons, and in what 
 manner, this charge could have been 
 raised. It seems to us more probable, 
 that from the time the public gaols 
 were re-joined to the counties, and 
 committed to the sole custody of she- 
 riffs, the charge of keeping and pre- 
 serving them in a proper condition 
 lay, in the first instance, on the she- 
 liffs, and it is probable that the sheriffs 
 might have had an allowance for ex- 
 traordinary expenses of that sort in the 
 E.xehequer : and we observe, that in 
 the Stat. 23 Hen. 8, for building new 
 gaols in several counties particularly 
 mentioned, at the charge of the re- 
 spective counties, provision is made 
 that the shetills shall be allowed what 
 they shall expend in the future neces- 
 sary reparations of such new-built 
 gaols, in their accounts in the Exche- 
 quer. In the same manner, it should 
 seem, that lords of franchises who 
 have the custody of public gaols in 
 their respective jurisdictions commit- 
 ted to them, and are thereby respon- 
 sible to the public for their prisoners, 
 should be bound to find good and 
 sufficient gaols as incidental to their 
 public trust; and they iiaving no ac- 
 counts with the Exchequer, can have 
 no such allowance made to them, but 
 may well be supposed to submit to
 
 THE GAOLER. 
 
 49 
 
 the statute 14 Edw. 3, c. 10, it is enacted, that " gaols which chap, m. 
 
 were wont to be in the sheriff's custody shall be again rejoined _J L 
 
 to their bailiwicks, and tliey shall put in such keepers for whom 
 they will answer." And by the 13 Rich. 2, c. 15, " the king's 
 castles and gaols, which were wont to be joined to the bodies of 
 the counties, and are now severed, shall be re-joined to the 
 same." And by the statute 19 Hen. 7, c 10, it is provided, 
 that " the sheriff of every county shall have the keeping of 
 the common gaol there, except such as are held by inheritance 
 or succession. And all letters patent, or the keeping of gaols 
 for life or years are annulled and void ; howbeit, that neither 
 the King's Bench nor Marshalsea shall be in the custody of any 
 sheriff; and the patents of Edward Courtney, Earl of Devon- 
 shire, and John Morgan, for keeping prisons, are excepted." 
 And by 11 & 12 Will. 3, c. 19, s. 3, " all murderers and felons 
 shall be imprisoned in the common gaol, and the sheriff shall 
 have the keeping of the said gaol." 
 
 It has been said that a sheriff may move the gaol from one 
 place to another within the county, but he must keep his 
 prisoners within it, and not suffer them to go out though he 
 himself attends them (A). 
 
 It is enacted by 4 Geo. 4, c. 64, s. 10, " that no keeper of wiio may be 
 any such prison (all county gaols and some borough gaols) shall 
 be an under-sheriff or bailiff, nor shall be concerned in any oc- 
 cupation or trade whatsoever." 
 
 The gaoler, it is said, is the sherift"s servant, whom he may jhe sheriff's 
 discharge at pleasure (i). The duty of the gaoler is the safe d'eia.i'i^ot'"^ 
 custody of all persons committed to his charge : in this he is s^o'^""- 
 but the sheriff's deputy; and if the gaoler permit a debtor to 
 escape from the gaol, the sheriff is liable to an action for an 
 escape. As, where a court, not having jurisdiction in the par- 
 such charge in consideration of the a lord of a franchise could only be 
 honourable exemption of their fran- charged for the repair of a gaol wiihin 
 chise." For those reasons those two the franchise by immemorial usage. 
 great lawyers were of opinion, that As to the constable of the castle of 
 the Bishop of Ely was liable to repair Chester, see Kex v. Antrobus, 2 A. & 
 the gaol of his franchise. Oiderswere E. 791. 
 
 given to institute a suit at the expense (h) Hob. 292; Latch, 16; Sid. 
 
 of tlie crown to try the question ; but 318; Williams d. Mostyn, 4 M. 5c W, 
 Dr. Mawson, who then filled that see, 145. 
 
 submitted, and repaired the gaol at his (i) Bac. Abr. lit. Sheriff (H), 5. 
 
 own expense. In Rex v. The Earl of Sed vide 24 Geo. 3, sess 2, c. 54 ; 31 
 Exeter, 6 T. R. 373, it was held, that Geo. 3, c. 46 ; 34 Geo. 3, c. 84,
 
 50 OF THE sheriff's OFFICERS. 
 
 CHAP. III. ticular case, ordered the discharge of a prisoner in the county 
 ^^'"' ^^' gaol for debt, the sheriff was held liable to an action for this as 
 an escape (/:). In the case of Pliimmer v. Whitchcott(/), it was 
 held, that where the warden of the Fleet in fee grants the office 
 for life to A., who suffered a prisoner in execution to escape, 
 and was not of ability to answer for the escape, that the warden 
 himself was liable. By the statute 8 & 9 Will. 3, c. 27, s. 1, 
 " prisoners upon contempt or mense process, or in execution, 
 committed to the custody of the marshal of the King's Bench, 
 or warden of the Fleet (m), shall be detained within the said 
 prison, or the rules thereof, until discharged by due course of 
 law ; and if the marshal, or warden, or keeper of any prison, 
 shall suffer any prisoner committed to their custody, either in 
 mesne process or in execution, to go or be at large out of the 
 rules of the prison, (except by virtue of some writ of habeas 
 corpus, or rule of court, to be granted only upon motion made 
 or petition read in open court,) such going, or being at large, 
 shall be deemed an escape ;" and by sect. 8, " if the keeper of 
 any prison, after one day's notice in writing, refuse to show any 
 prisoner committed in execution to the creditor, or his attorney, 
 such refusal shall be deemed an escape ;" and by sect. 9, " if 
 any person, desiring to charge another with any action or exe- 
 cution, shall desire to be informed by the keeper of the prison, 
 whether such person be a prisoner or not, the keeper shall give 
 a note in writing thereof, to such person upon demand, at his 
 office for that purpose, upon pain of forfeiting 50/., and such 
 note shall be sufficient evidence that such person was at that 
 time a prisoner in actual custody;" and by statute 8 & 9 Will. 
 3, c. 26, " the keeper of a prison, for taking bribes for conniving 
 at or permitting an escape, is subject to a penalty of 500/., and 
 to be for ever incapable of executing his office ;" and by statute 
 6 Geo, 4, c. 16, s. 38, " the gaoler to whose custody a bankrupt 
 is committed, suffering him to escape, is liable to a penalty of 
 500/." But where the gaoler permits a prisoner committed to 
 his charge on a criminal account to escape, the gaoler, and not 
 the sheriff, is answerable ; for the sheriff is liable to an action, 
 
 (k) Brown v. Compton, 8 T. R. v. Griffith, Hard. 29. 
 
 424, (m) See now as to Queen's Prison, 
 
 (0 2 Lev, 159; S, C.,T, Jon,60 ; 5 & 6 Vict, c, 22. 
 1 Vent, 314. See also Wainwriglit
 
 THE GAOLER. 51 
 
 but not to an indictment, for the default of his officer in suffering chap. m. 
 a voluntary escape (n). By statute 19 Hen. 7 , c. 10, a fine for a sect, iv. 
 negligent escape of any person indicted for high treason shall be 
 one hundred marks at least ; if committed for suspicion of high 
 treason, forty pounds ; if indicted for murder or petty treason, 
 twenty pounds ; if for suspicion of these, or indicted for other 
 felony, ten pounds ; if not indicted, five pounds : and if the 
 gaoler be not sufficient, the sheriff shall answer for his neglect. 
 
 As the sheriff is liable for the escapes of prisoners confined Securityfrom 
 in the county gaol for debt, he should require from the gaoler {{jg fheWff.'** 
 a bond, with sufficient sureties for the due performance of the 
 duties of his office (o). In an action on a bond given by a 
 gaoler to the sheriff, the condition of which was, to indemnify 
 the sheriff against escapes, and to attend at sessions and 
 assizes, and " also when any writ of habeas corpus for the re- 
 moval of any prisoner should be served on the sheriff, under- 
 sheriff, or deputy, or on the gaoler, to convey, by the command- 
 ment or appointment of the said sheriff, his under-sheriff, or 
 deputy, safely and without delay, all prisoners to and from the 
 gaol of the county to such court or place as the writ should 
 direct," it appeai*ed that the sheriff had directed a warrant on 
 a habeas corpus to the gaoler, and to W. W., " for this time only 
 specially appointed ;" the prisoner escaped from W. W. whilst 
 conveying him to London, the gaoler at that time attending 
 sessions, it was held that the gaoler was not liable on his bond 
 for this escape (p). 
 
 It seems to have been considered by the court of King's Bench Liability of 
 in Brandling v. Kent (ji), that a gaoler would not be liable for gaoler, 
 any irregularity in the arrest of a prisoner committed to his 
 charge, but that the sheriff alone would be answerable, and that 
 it was the duty of the gaoler to receive a person tendered to him 
 
 {ii) I Hale's P. C. 597. But see gaoler should be enjoined, that as 
 
 R.v. Fell, 1 Ld. Raym. 424 ; 1 Salk. soon as he receives a prisoner he 
 
 272; see also 2 Hawk. P. C. 135, must inform the under-sheriff, that a 
 
 136, 139. A gaoler de facto is liable charge may be sent upon the receipt 
 
 to be indicted for suffering a criminal of any other process against such pri- 
 
 to escape, Vin. Abr. Gaoler (C). soner, otherwise an escape might easily 
 
 (o) For the form of the condition happen, 
 
 of the gaoler's bond see Append. The (p) Ryland v. Lavender, 2 Bing. 
 
 under-sheriff should, from time to 65. 
 
 time, compare his indent book with (</) 1 T. R. 60. See per Buller, J. 
 
 the gaoler's, and mark all the dis- and Oilier v. Bessey, T. Jones, 214. 
 charges, &c., in the margin. The 
 
 E %
 
 52 OF THE SHKRIFr's OFFICERS. 
 
 CHAP. III. by the sheriff, whether tlie arrest was legal or not. That doctrine, 
 sECT.iv.^ however, was unnecessary to the decision of the case, in which 
 it was only held that the mere fact of the prisoner being ten- 
 dered to the gaoler after the return of the writ did not excuse 
 him. And it has been ruled by Lord Ellenborough that a gaoler 
 though acting bona fide, and without the means of ascertaining 
 the identity of the person imprisoned, is liable to an action if 
 by mistake of the sheriff's officer the warrant was executed 
 against a wrong person (?•). But a gaoler receiving a prisoner 
 under a magistrate's warrant is protected by 24 Geo. 2, c. 44, 
 s.G(s). 
 
 Regniaiion There are several statutes which provide for the regulation 
 
 of gaols, and for the punishment of gaolers who have been 
 guilty of extortion or oppression of criminals committed to 
 their charge, which it would be tedious and out of place to 
 embody in this work(i). 
 
 The gaoler The gaoler is bound to have sufficient force to prevent a 
 
 for.p, but not breach of the prison; for nothing but the act of God or the 
 ^' king's enemies will excuse an escape ; even breaking the prison 
 
 by mobs or rebels is not an answer to an action for an escape (?<). 
 On the other hand the gaoler must not be guilty of cruelty, or 
 of putting debtors in irons, without a good cause (a:). Where 
 felons in a gaol were breaking their fetters, and the gaoler went 
 to them with a hatchet, and they assaulted and beat him, the 
 gaoler killed two of them with the hatchet — resolved by all 
 the council that it was well done (v/). Lord Holt ruled, that if 
 a prisoner be imprisoned in a room by the gaoler where a per- 
 son is ill of the small-pox, to which he objects, and catches the 
 small-pox and dies, it is murder in the gaoler (x). 
 
 Bond given Bonds given by a prisoner to a gaoler for ease and favour are 
 
 lo a gaoler by in ^ l < 
 a prisoner. 
 
 (?•) Aaron v. Alexander, 3 Camp. Indeuuiily Acts passed after Lord 
 
 35 ; see White v. Taylor, 4 Esp. 80. Gcoige (Joidoii's riots, 
 
 (s) Bute I'. Newman, 1 Gow, \, (i) 2 Inst.38 ; Fleta, 1. 1, c. 26 ; 3 
 
 P. 97. Inst. 34. By the stat. 32 Geo. 2, c. 
 
 (t) See T. Chitty's Burn's Justice, 28, s. 11, the judges or a judge of as- 
 
 29th edit., tit. Gaols ; and Bac. Ahr. size have the power of redressing and 
 
 tit. Gaol and Gaoler, where tlic provi- making orders upon complaints made 
 
 sions of the legislature will be CouirI. to them of the oppression of a gaoler, 
 
 (u) Elliott V. the Duke of Norfolk, &c. 
 
 4 T. R. 789 ; Southcote's case, 4 Rep, (y) Jenk. 23, pi. 42. 
 
 84 ; Crompton v. Ward, Stra. 429 ; (z) Castel r. Cambridge, 2 Stra. 
 
 O'Neil V. Marson, r, Burr. 2812; 856, See R. i, Iluggins, 2 I.d Raym. 
 
 Roll. Abr. Escape (D), 7. See the 1574,
 
 THE (iAOLKK. 
 
 53 
 
 SECT. IV. 
 
 void, by the statute 23 Hen. 6, c. 10 (tt). So a bonil to in- chap. in. 
 deninify the gaoler from the consequences of allowing his 
 prisoner to go at large is void (b) ; however, a bond given to a 
 gaoler by a prisoner to be and continue a true prisoner, if not 
 for ease or favour, is good (c) ; but a bond given to a gaoler for 
 his fees or diet is void ((/). 
 
 We have seen how the fees payable by prisoners are regu- Fees. 
 ]ated(e). Formerly the gaoler, and from him the under-sheriff', 
 received a fee, generally 2s. GiL, on a liberate granted to a debtor 
 on his discharge ; but now, by the statute 55 Geo. S, c. 50, s. 
 10, it is enacted, " that such liberate shall be granted to such 
 debtor, free of all expenses ;" and the court of quarter sessions, 
 subject to the approbation of the judges of assize, are em- 
 powered to make compensation to the sheriff^, or under-sheriff", 
 as they think fit (/). And by the 13th section of the same 
 act, " any gaoler who sliall, after the 1st of October, 1815, 
 exact from any prisoner any fee or gratuity for or on account 
 of the entrance, commitment, or discharge of such prisoner, or 
 who shall detain any prisoner in custody for non-payment of 
 any fee or gratuity, shall be rendered incapable of holding his 
 office, be guilty of a misdemeanor, and be punished by fine and 
 imprisonment." Where a writ of habeas corpus is delivered to 
 the gaoler to bring uj) a prisoner in his custody for debt, he is 
 bound to obey it, and cannot detain tlie defendant for his fees (g). 
 The court, however, will order that the fees be paid before he 
 is turned over (h). An action for money had and received is 
 maintainable against a gaoler wlio takes more than the rates 
 settled by regulation of magistrates, for lodging Sec. within the 
 gaol, though he has paid over the money to the magistrates (i). 
 
 («) Oaks t. Cell, 3 Keb. 320,361 ; (d) Id. Ibid. ; Atkinson i. Hobbs, 
 
 jMosdell r. Middleton, 1 Vent. 237 ; 1 Rol. Rep. 338. 
 
 S. C. T. Raym. 222 ; 3 Keb. 133 ; in (e) Aitte, p. 42, 43. 
 
 Ihatcase, Twisdeu, J. held, that if the (/) This extends to Middlesex, 
 
 bond be also given for a just debt, it R. v. Justices of Middlesex, 3 B. & 
 
 is void in toln. Hole, C.J., cmtva. Adol. 100. 
 
 (6) Hob. 14; 1 Vent. 237. And (g) I lopman r. Barber, Stra. 814 ; 
 
 see the opinions of Holt and Treby, White c. Hnugh, il>. 1262 ; Vin. Abr. 
 
 chief justices, and of Powel, J.; 1 tit. Gmiler (D). 
 
 Lri. Raym. 278, 279 ; Plowd. 60.' (h) Per Foster, J., Stra. 1262 3 
 
 (c) Oaks I'. Cell, 3 Keb. 361 ; Rex r. Greenway, 2 Show. 172. 
 
 Lenthal v. Cooke, 1 Saund. 160. (i) Miller v. Aris. 3 Esp. 231 »
 
 ( 54 ) 
 
 CHAPTER IV. 
 
 OF BAILIFFS OF FRANCHISES. 
 
 Of the Nature of a Liberty. — What Writs the Bailiff may execute in 
 his Liberty. — Bailiff's Qualification. — To keep a Gaol, attend 
 Assizes, ^^c.—Of the Sheriff's Mandate.— The Bailiff's Power 
 and Duties, — His Liabilities. 
 
 Of the origin FRANCHISES ov liberties, in which the baiUff or officer hath the 
 rfnMhhe"^ return of writs and the ordinary jurisdiction of the sheriff, exist 
 with return of ^^ yarious parts of England, and are of great antiquity («). It 
 would appear that after the Conquest, the lords, to maintain their 
 authority, purchased the bailiwicks of hundreds, sometimes for 
 years, for life, or in fee, and for this they had courts leet and 
 return of writs (6). Their franchises are derived from the Crown, 
 and exist either by grant or prescription (c). They are of two 
 kinds, either a grant to a person and his heirs, or to a body politic, 
 for their successors to have the franchise of the return of writs 
 within a particular district, or a grant to the lord of a franchise 
 to appoint a bailiff who is to have the return of writs within the 
 district or liberty (d). In the former case the grantee, his heirs 
 or successors, is the officer or bailiff of the liberty, and has the 
 return of writs therein, and is responsible for the due execution 
 of the duties incident thereto (e). In the latter case the duty of the 
 grantee or lord of the franchise is to appoint a badiff, who is the 
 person who has the benefit and obligation of return of writs (/). 
 And this distinction is to be attended to, for the lord of the 
 franchise in the latter case is bound to appoint a sufficient 
 
 (a) It would appear that there was (d) Dalton, Sheriff, 459 ; Newland 
 
 a roll of Liberties, Stat. West. 2, c. 39. v. Cliffe, 3 Bar. & Adol. 636. 
 
 This roll seems to have been lost. (e) See judgment of the Court in 
 
 Ritson's Bailiff of a Liberty, pp. 3, 4. Newland v. Cliffe, 3 Bar. & Ad. 648. 
 
 (6) Gilb. History of C. B.,25, 26. And see Entries, 538 b. and 552 a. 
 
 3rd edit. ; Vin. Abr. tit. Return, 206. there cited. 
 
 (c) Hardr. 422. (/) Dallon, 459.
 
 OF BAILIFFS OF FRANCHISES. 55 
 
 bailiff of the liberty, and a writ shall go to compel him to choose chap. iv. 
 another (g), or he may lose his franchise by his default. But in 
 case of the death of the bailiff before return made, or in case of 
 the default of the bailiff, in that case the lord of the franchise is 
 not responsible (/i). And where a grant was made to the earl of 
 W., his heirs and assigns, by his bailiff or bailiffs for that purpose, 
 by the said earl &c. from time to time to be deputed, shall and 
 may have the full return of writs &c., it was held that the 
 bailiff appointed by the lord of the franchise, and not the lord 
 himself, was the person to make the return (i). When the bailiff 
 dies, the successor and not the lord of the franchise is the proper 
 person to make a return (h). 
 
 Where the bailiff of a franchise has the return of all writs within 
 his liberty, he also has execution of such writs as ai*e incident 
 thereto (J). Lord Coke says, that a grant of the return of writs 
 for a county at large is void, for in effect it taketh away the 
 office of sheriff (m). But the statute 2 Edw. 3, c. 12, has taken 
 away from the crown the power of granting franchises of retorna 
 hrevium at this day ; however, it would appear to be the better 
 opinion, that re-grant of such a franchise that had fallen to the 
 crown by escheat, is not prohibited by that statute (n). The 
 bailiffs of franchises may execute the duties of the office by 
 deputy, but the returns must be made in the name of the chief 
 bailiff(o). 
 
 Although the franchise of retorna hremum within a liberty is .^hat writs 
 
 o " ine baiiiit of a 
 
 eenerallv claimed to be a return of all writs, precepts, and pro- liberty has 
 
 o J . power to exe- 
 
 cesses whatsoever, yet it is quite clear that there are many writs, cute. 
 of which the bailiff has not the execution in his franchise ; as 
 where the Queen is a party, the sheriff is bound to execute the 
 writ within all liberties in his county (^j). So the sheriff, and 
 
 {g) Dalton, 461 ; Fitz. Nat. Brev. and oppressions, and would do more 
 
 164 b. good to the kingdom than all the 
 
 (/i) Year Book, 14 Ed. 4, fo. 1, 6. liberties of retorna brevium have been 
 
 Vin. Abr. Return, p. 213 ; Bro. Abr. worth these 100 years; they are a 
 
 Retorne de Briefe, pi. 99. feather in his cap that hath them, but 
 
 (i) Nevvland v. Cliffe, 3 B. & Ad. they area thorn in the foot of every one 
 
 630. that hath to do with them." 
 
 (/() See cases in the two last notes. (m) 2 Inst. 452, per Lord Hale ; 1 
 
 (0 Per Hale,C. B., 1 Ventris, 412. Ventr. 405 ; 2 H. 4, pi. 12. 
 Lord Hale, in that case, complains (») Atkyns d. Clare, 1 Ventr. 399; 
 
 that these franchises are great evils, 4 Inst. 267. 
 and that their destruction " would (o) Cro. Jac. 242. 
 
 avoid a great delay of justice, many (;)) 38 Ass. 19; Bro. Chal. 129; 
 
 suits and vexations, grievous wrongs Plowd. 216,243; 5 Rep. 91 b, 93.
 
 56 OF BAILIFFS OF FKANC'IIISL S. 
 
 CHAP. IV. not the bailiHj has the letiini and execution within the liberty, 
 of all writs of quo iiiinus (fj), of writs of inquiry of waste (/), ot 
 redisseisin(*), of writs of inquiry (/), or of distringas juratores (u), 
 or of writs where the bailiff is a party (x), or wherever the sheriff" 
 is judge; where the sheriff is to take pledges, he ought to take 
 them, although the execution of the writ belongs to the bailiff 
 of a franchise (?/). But the execution of all other writs within 
 a liberty belongs to the bailiff of the liberty ; thus it has been 
 determined, that the bailiff of a liberty has the right to 
 make inquisition and extent upon an elegit, by virtue of a 
 warrant of the sheriff directed to him (2). Where a writ is to 
 be executed in two liberties, viz. partly in one liberty, and partly 
 in another, the sheriff should send a mandate to each (a). And 
 where the writ is to be executed partly in the liberty, and partly 
 in the county at large, the sheriff should direct a mandate to the 
 bailiff of the liberty, to do execution for the part within his 
 franchise, and should as to the residue do execution by his own 
 officers (5). The duty of summoning jurors within the liberty, 
 it would appear^ belongs to the officer of the franchise having 
 the execution and return of writs (c). 
 He is a trcs- Under a grant of a return of writs within a certain district, the 
 
 passer lor ■^■fr• ■ 
 
 executing a bailiff of such liberty has no power to execute process imme- 
 diately (ii- diately directed to him, for he is not the known officer of the 
 court, like a sheriff; and if a writ be directed to the bailiff of 
 such liberty either against the body, or the goods of a party, by 
 so doing the bail ifi' becomes a trespasser ((/). And if the bailiff 
 of a franchise, on a writ of mesne process directed to him, arrest 
 the defendant, the courts will discharge him out of custody on 
 filing common bail (e). 
 
 (9) 1 Ventr. 399, 406. others, Cro. Car. 319. 
 
 (»•) By Stat. West. 1, c. 17; Gilb. (a) See 5 Kep. 92. 
 
 Hist. C. 13,28; T. 11 Hen. 4, (81). (A) 14 lien. 6, 48, 67 ; Bro. Abr. 
 
 (s) Ibid. Retorne de Briefe, 50. 
 
 (t) Com. Dig. Ret. D. 4 ; Wiiely (c) Rex v. Jaraiii, 4 Bar. & Cies. 
 
 V. Gunstone, 2 Rol. Abr. ; S. C. Hob, 692 ; S. C. 7 Dow. & Ryl. 
 
 83. ((/) Grant v. Bngge, 3 East, 128. 
 
 (?t) 19 II. 6, 67 a. lint the sherift" of a county palatine is 
 
 (i) By analogy to tiie case of slie- not a trespasser for executing a writ, 
 
 rifts, Dalt. 463, citing 7 Edw. 3, 56 ; directed to him in the first instance, 
 
 Filz. Chall. 2. Jackson i'. Hunter, 6 T. R. 71. 
 
 (v) Bro, Ret, 61 ; 14 Hen, 6, 3; (e) Bowriug v. Pritchard, 14 East, 
 
 21 Hen. 7, 14. 289; Bracebridge v. .Johnson, 1 Brod. 
 
 (s) Sparrow v. Matersock and Cv Bing. 12.
 
 OV BAIMIVS Ol' I'KANCIUSKS. 57 
 
 By the slalute !• Hen. 1, c. 19, "no steward or bailiH', nor chap, iv. 
 minister of a franchise, which have return of writs, shall be Not to be an 
 attorney in any plea within the franchise or bailiwick, whereof •'"°"'ey- 
 he is or shall be officer or minister in any time to come." And 
 also, by rule of K. B., 1G54, s. 1, "no bailiffs of liberties shall 
 be admitted, during their employment, to practise as attorneys, 
 under pain of expulsion from an attorney, and not to be re- 
 admitted." And, by the statute 4 Edw. 3, c. 9, and by 5 Edw. 
 3, c. 4, "no bailiffs of franchises, &c., shall henceforth be, 
 except he have lands sufficient in the same county, whereof to 
 answer the king and his people, if any will complain (/)." 
 
 The bailiff of a liberty should have a ^aol situated within the To i.ave a 
 
 ., , , , , ■^■li^ n n i • gaol wilhiu 
 
 franchise. It has been considered, that the baihtt ot a tranchise his liberty, to 
 
 , 1 n 1 r. 1 • 1 • / \ attend assizes, 
 
 was liable to repair the gaol of the franchise at his own expensei^g) ; &c. 
 
 but it is now held, that he is only subject to such obligation by 
 immemorial usage (/<). If the bailiff of a liberty arrest a person 
 on a mandate directed to him, and he convey such person to the 
 county gaol, situate out of the liberty, it is an escape (i). Bailiffs 
 of franchises, having the power of keeping gaols in their liberty, 
 shall certify the names of the prisoners in their keeping at the 
 next general gaol delivery in the county or franchise (k). 
 " Bailiffs and officers of liberties, which in times past have been 
 accustomed to attend justices of assize, shall attend upon the 
 justices of assize, justices of gaol delivery, and justices of the 
 peace for the same shire wherein such franchises and liberties 
 he {I), and make due execution of all process to them to be 
 directed for ministration of justice within such liberties or fran- 
 chises ; and that also 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." 
 Where it appeared that King Charles IT., by charter, (reciting 
 
 (/ ) See Fitz. N. B. 164. 4.c. 14 ; and 27 Hen, 8, c. 24. See 
 
 (ff) Bac. Abr, tit. OuD/ttfx/ C-'((ii/i'r.s, also Rex v. Jaiam, 4 Bar. & Cres. 
 
 (B). f)92; S. C. 7 Dow. & Rvl. 
 
 (h) Rex V. Earl of Kxeler, 6 I'. U. (l) 27 Hen, 8. c. 24, s."7. It woiild 
 
 373. appear, that before this statute, bailiffs 
 
 (0 Boolhnian v. Earl of Surry, 2 of francliises were bound to give their 
 
 T. R. 5. See Jackson v. Hill, 10 attendance on the justices of assize, on 
 
 Adol.&Eilis,491;2P.&D,455,S,C. pain of forfeiture for neglecting; so to 
 
 (/t) 3 Hen. 6, c. 3. As to receiving do, Bro. Forf. pi. 115, cit. 20 Edw. 4, 
 
 criminals, see 4 Edw. 3,0. 10 ; 6 Edw. fol. 6.
 
 58 
 
 OF BAILIFFS OF FRANCHISES. 
 
 Of the she- 
 riff's man- 
 date, and 
 where he 
 may enter a 
 liberty to 
 execute a 
 writ. 
 
 former grants of the francliise, by Philip and Mary, and by 
 Charles I.,) granted the execution of all writs to Viscount Dun- 
 bar, his heirs and assigns, in the liberty of Holderness, and it 
 appeared that the officer had, since 1787, been in the habit of 
 summoning jurors within the liberty toattend the quarter sessions, 
 it was held that this evidence raised a presumption that this was 
 a franchise existing at the time of passing the statute 27 Hen. 8, 
 there being no evidence to the contrary : and that it was the 
 bailiff's duty, on receiving the sheriff's mandate, to summons a 
 sessions jury (m). 
 
 Where a writ (without a non-omittas clause) can only be 
 executed within a liberty, the sheriff should make his mandate 
 to the bailiff of the liberty to execute the writ («), 
 
 Some nice distinctions have been raised in very recent cases 
 in construing warrants, how far they can be treated as mandates 
 to the bailiff of a liberty, or as the ordinary warrants to a sheriff's 
 officer. In Platel v. Dowse (o) an ordinary warrant directed to 
 the deputy bailiff of a liberty having been acted upon as a man- 
 date, it was held that the chief bailiff could not refuse to return 
 the mandate, on the ground that the document was a sheriff's 
 warrant. But in a more recent case {p), where a warrant of 
 the sheriff of Yorkshire was addressed to the keeper of the 
 county gaol, "and also to the chief bailiff of the liberty of Pick- 
 ering Lythe, his deputies, and John Doe, my bailiffs," he directed 
 them to take the defendants, if they should be found in the 
 sheriff's bailiwick. In an action against the chief bailiff of Pick- 
 ering Lythe, for an escape, it was held that this was a warrant, 
 and not a mandate. Indeed, Mr. Justice Patteson said, ** I think 
 that where the bailiff of a franchise is addressed as an officer 
 or bailiff of the sheriff, he may waive his franchise, and act 
 upon the warrant, as an ordinary sheriff's officer." 
 
 By the statute 13 Geo. 2, c. 18, s. G, "the sheriff, at the 
 request and costs of the lord of a franchise having return of 
 writs, shall appoint a deputy to reside in or near the same, who, 
 on receipt of process, shall, under the seal of the sheriff, issue 
 
 (m) Rex V. Jaiam, 4 Bar. & Cres. 
 692 ; 7 Dovvl. & Ryl. S. C. 
 (n) See fonn, Append, c. 4. 
 (o) 4 bing. N. C. 204; 5 Scott, 
 
 549, S. C. 
 
 (p) Jackson v. Hill, 10 Adol. & 
 Ellis, 491 3 S. C. 2 Per. & Dav.455.
 
 OF BAILIFFS OF FRANCHISES. 
 
 59 
 
 his warrant to the lord of the franchise to execute the process." ^"^^' ^^- 
 The statute of West. 2, c. 29, in affirmance of the common law, 
 provides, that if such bailiff give no answer to the sheriffs, the 
 court may grant a special warrant, with a non-omiitas (q). And 
 where there are two liberties in a county, and the sheriff makes 
 his mandate to the bailiff of one of them, who gives him no 
 answer, he may, upon a non-omiitas, arrest the defendant in 
 either liberty (r). Now, however, in practice, it is not unusual 
 to issue a non-omittas writ, in the first instance, without default 
 being made by the bailiff (5). As the practice of thus suing out 
 a non-omiitas writ, in the first instance, to be executed in a 
 liberty with return of writs, has grown into general use, it was 
 decided that a party was not liable to an action, at the suit of 
 the bailiff of the liberty, for so doing, although it was alleged 
 that the non-omittas writ was sued out to deprive the bailiff of 
 his fees {t). Although a sheriff is liable to an action, at the suit 
 of the owner of the franchise, for executing a writ without a 
 non-omittas clause, within a liberty having the return of writs (m), 
 yet the execution, in such case, is good, and therefore the sheriff 
 is not a trespasser for executing such a writ within a liberty 
 within the limits of his county {x) ; so, on the other hand, if the 
 sheriff arrest a person within such liberty, and suffer him to 
 escape, he is liable to an action ; for although he was liable to 
 an action at the suit of the owner of the franchise, for an in- 
 fringement of it, yet the arrest was good {ij). Indeed, it appears 
 that the bailiff of a liberty may waive his franchise ; thus, where 
 he has the option of acting as bailiff of the liberty, or as the 
 sheriff's bailiff, he may waive the former, and elect to act as 
 sheriff's officer (~). 
 
 As regards granting replevins, where the bailiff' of the liberty Power to 
 
 replevy. 
 
 (9) 2 Inst. 45:3. Mead and another, 2 Staikie, 207 ; 
 
 (r) 5 Rep. 92 a ; 9 East, 335, 340. S. C. Holt's N. P. C. 593, Wood, B., 
 
 (s) Canett v. Smallpage, 9 East, ruled, that a common bailiff of the 
 
 330. sheriffexecuting a writ within a liberty, 
 
 (t) Ihxd, was a trespasser, and that a defendant 
 
 (at) Villa de Darby v. Foxley, 1 who resisted the bailiff, and cut hitn 
 
 Roll. Rep. 118; 1 Venir. 406; Show, with an axe, was not guilty of mali- 
 
 18; 5 Rep. 92 ; Fitz. N. B. 98. ciously cutting under Lord Ellen- 
 
 (i) SpinksD. Spinks, 7 Taunt. 311; borough's act. 
 Fitzpatrick v. Kelly, cit. in Rex v. (z) Jackson v. Hill, 10 Adol. & 
 
 Stubbs, 3 Term Rep. 740 ; 5 Rep. 92. Ellis, 477 ; S. C. 2 Per. & Dav. 455 ; 
 
 (y) P'ggott V. Wilkes, 3 Bar. & JNlunday v. Froggate, 2 Kel. 71, 117, 
 Aid. 502. But in the case of Rex v. 126 ; and see also Marsh. 25.
 
 60 ui' RAiLiiis OF ruANcnisi;s. 
 
 (.iiAv. IV. has tlie power of granting replevins, the sheriH'cannot enter the 
 
 liberty and grant replevins and make deliverance, indess there 
 
 has been a default in the bailiff' of the liberty («) Before the 
 
 statute of Marlbridge, 52 Hen. 3, the sheriff" could only grant 
 
 replevin upon a writ of replevin issuing out of Chancery (h). The 
 
 power of granting replevins is conferred by the 21st chapter 
 
 of that statute. 
 
 The bailiff's After the bailiff' of a liberty lias received the sherift"s man- 
 power and •' 
 duties within c]ate, he is to execute the same witliin his liberty, in the same 
 
 his liberty. ... ... 
 
 manner as the sheriff" is bound to execute it in the county at 
 large. By the statute 27 Men. 8, c. 24, s. 14, " all other statutes 
 made before the 4th February, in that year, against sheriffs, or 
 their under-sheriffs, bailiffs, or other ministers (/or maJcing or 
 returning any juries, serving of any writs, taking of fees, for ex- 
 tortions, or for any thing concerning Iheir offices^ ; and all pains 
 and penalties in every such statute contained, shall be in force 
 against and extend to all stewards, bailiff's, and other ministers 
 and officers of liberties and franchises having returns of writs 
 and executions thereof, in like maimer as they extend to sheriff's, 
 under-sheriflTs, &c. ; as if the said stewards, &c. had been par* 
 ticularly named therein," saving that the said stewards and 
 bailiffs of franchises, their deputies or clerks, may occupy their 
 offices above one year, viz., for so long time as they be given to 
 them. Since that act, usually all the acts of parliament and 
 rules of court, regulating the manner in which writs are to be 
 executed, or the fees to be taken thereon, in terms extend to 
 bailiff's of franchises. If the bailiff' of a liberty arrest a person, 
 he should imprison him within the liberty, for if he convey a 
 prisoner to the county gaol, situated out of the liberty, it is an 
 escape (c); and if the bailiff' take a bail-bond from a person in 
 his custody on mesne process, the bail-bond should be given to 
 the bailiff', and not to the sheriff" (J), 
 ketuni or By Stat. 27 Hen. 8, c. 24, s. 9, " The amercement for insuffi- 
 
 iTabiiit''/Jf"'' cient returns made by stewards and bailiff's of franchises shall be 
 set on the head of such bail iflfs and stewards, and not on the 
 sheriffs.'" The responsibility of the sheriff' in executing a writ 
 
 (a) Mounsy v. Dawson, 6 Ad. 5t J'. R, 5. 
 
 Ellis, 752 ; 1 Nev. & Per. 763, S. C. (r/) Keld v. Harding. Com. Rep. 
 
 (6) 2 Inst. 139,140, 194; Gilb. 378; per Euller, J., 1 T. R. 4. Sed 
 
 Replevin, 81 , 85 b. vkh Dalt. 460. 
 
 (c) Bootliman v. Earl of Surry, 2
 
 OF BAILIFFS OF FRANCHISES. fil 
 
 ceases on making his mandate to the bailiff'; and his return chap. iv. 
 mandavl baUico witli the bailiff^'s return, or by stating that the ' 
 
 bailiff'hath made no return, is sufficient to discharge the sheriff. 
 But it is said, that if the sheriff" return mandavl ballivo, who an- 
 swered some matter which is insufficient as a return, the sheriff" 
 shall be amerced, for the bailiff''s return, in such case, is no 
 return, and the sheriff' should have returned ymllnm dedit respon- 
 siim (e). It is said, that if the sheriff' return mandavi hall'ivo to a 
 writ, which he should execute within the liberty himself, as a 
 writ of inquiry in waste, the sheriff" shall be amerced (/). 
 
 And if the sheriff" return that he has made his mandate to the 
 bailiff" of a liberty, when in fact there is no such liberty, he is 
 amenable to the party and to the queen {g). 
 
 The sheriff^'s mandate always requires that the bailiff" shall 
 make his return to the sheriff"; but in practice, the bailiffs make 
 their returns directly to the court. The bailiff" should put his 
 name to the return (/«). 
 
 And when the bailiff"s return is made to the court, the bailiff" 
 is alone responsible ; thus, when he returns ccpi cotyus, to a writ 
 of mesne process, he shall be immediately ruled to bring in the 
 body, and on failing so to do, the bailiff", and not the sheriff", 
 shall be attached (i). Where the sheriff' issues his mandate to 
 the bailiff" of a liberty, to summon a jury to attend tlie quarter 
 sessions, the sessions has the power of fining the acting bailiflf 
 for not complying with the mandate (/-). If the sheriff return 
 the answer of the bailiff which is false, an action lies against the 
 bailiff' for the false return, but not against the sherift'(/). But if 
 the sheriff alter the return of the bailiff of a franchise, he shall 
 answer to the queen and to the bailiff' of the franchise (?«)• If> 
 after the delivery of the mandate to the bailiff of a franchise, he 
 die or be removed, and a new bailiff succeeds before the return, 
 the new bailiff should make the return («), and where, under those 
 circumstances, the sheriff returned the answer of an old bailiff, 
 
 (e) Roll. Ahr. ill. Relorn (M). I, (I) Jackson i'. Hill, 10 Adol. & 
 
 2, 3, 4, 5; 3 Hen. 7; 12 Bro. /?<-- Kliis, 477; 2 Ter. & D. 455, S. C. ; 
 
 torn, 87. 2 Roll. Abr. 461, !. 35 ; 1 Roll. Abr. 
 
 (/) Fitz. lietoni, 53. 98, I. 37 ; lb. 99, 1. 30. 
 
 (g) See Stat. West. 2, s. 39. (in) 2 Roll. Abr. 563, 1. 25 ; Dalt. 
 
 (h) 12 Edw. 2. c. 5. 461. 
 
 (0 See 2 T. R. 5 ; T. Raym. 193. («) 14 Edw. 4, fol. 1 b ; 6 Vin. 
 
 (k) Rex V. Jaram, 4 Rar. & Cres. Abr. Return, 213 ; Bio. Abr. Retorue 
 
 692 ; S. C. 7 Dowl. & Ryl. de Brief e, 99.
 
 6^ OF BAILIFFS OF FRANCHISES. 
 
 CHAP. IV. which was false, it was holden tliat no action lay against the old 
 bailiff for such answer, for it was the return of a mere stranger (n). 
 The bailiff is, of course, liable to an action on the case (o) for 
 the escape of a prisoner out of his custody (p). The removal 
 of a prisoner out of the liberty, we have seen, even to the 
 county goal, without a habeas corpus, is an escape (9). If the 
 sheriff return the bailiff's answer falsely, the bailiff is respon- 
 sible, and must seek his remedy over against the sheriff (r). 
 
 The sheriff's return does not conclude a party in an action 
 against the bailiff of a liberty. Thus, if the bailiff be guilty of 
 an escape, a return o^ cep'i corpus by the sheriff is no bar to an 
 action against the bailiff of the liberty for an escape; for the 
 return does not operate as an estoppel in such action (s). 
 Feesand As to the fees and poundage to which the bailiff of a fran- 
 
 pound.ige. , . . • i i i 
 
 chise m entitled, see post, chapter 5, section 5. 
 
 (n) Palmer v. Marsh, 1 Roll. Abr. (5) Boothman v. Earl of Surry, 2 
 
 99, 1. 35. It is there said, that an ac- T. R. 5. 
 
 lion would have lain against the sheriff (r) Shaw i;. Simpson, 1 L. Raym. 
 
 for making such a return. 184. 
 
 (0) See 5 & 6 Vict. c. 98, s. 31. (s) Jackson v. Hill, 10 Adol. & 
 
 (p) Boothman D. Earl of Surry, 2 Ellis, 488; S. C. 2 Per. & Dav. 
 
 T. R. 5. 455.
 
 ( 63 ) 
 
 CHAPTER V. 
 
 OF THE EXECUTION AND RETURN OF WRITS IN GENERAL. 
 
 Sect. I. — Of the Direction of Writs. — To what Sheriff, 8fc. — 
 Sheriff, S)'c. hound to execute, and justified in the 
 execution of all Writs directed to him. 
 
 II. — How, where, and when the Sheriff may execute Writs. 
 — Warrants to Officers. — )Vhcn Officer maij break 
 open Doors. — Raising the Posse Comitatus. — Where 
 Writ may be executed. — When, Sunday. 
 
 III. — Rule to return the Writ. — When granted. — The Rule. — 
 Attachment, when and how granted for not returning 
 the Writ. 
 
 IV. — The Return. — By whom made. — Form of the Return. — 
 Must be certain. — Must he a complete answer. — Must 
 not falsify the Record. — How aided. — When amended. 
 ■ — When conclusive. — Particular Returns. — Tarde. 
 — Languidus. — Rescue. — Rescuers, how punished. — ■ 
 Mandavi ballivo. 
 
 V. — Sheriff's Poundage and Fees on executing and return- 
 ing Writs, on Fi. Fa. ; on Ca. Sa. ; on Extents ; 
 on Eligit; Habere facias possessionem. — Who to 
 Pay. — Ho7v recovered. — Extortion. 
 
 Vi. — Actions against the Sheriff". — At the Suit of the Plain- 
 tiff. — At the Suit of the Defendant.— Justification by 
 the Sheriff, <^c. — Evidence. 
 
 Section I. 
 Writs, to whom Directed. 
 All mesne and iiidicial writs are directed to the sheriff of the Writs, to 
 
 ... 1 . 1 • • J whom di- 
 
 county m which they are to be executed ; or, in certain excepted reeled.
 
 64 WRITS, TO WHOM DIRECTED. 
 
 CHAP. V. cases, which shall presently be mentioned, to some officer on 
 ^'-'^'''- '• whom the performance of the duties of sheriff for the particular 
 place is imposed by law. And, as a general rule, the writ 
 should be directed to the person or persons who are bound to 
 execute it, and not in the alternative, "To A. or 1j."(«). If 
 the sheriff be a party, the writ sliould (except in the case of mere 
 serviceable process (6) ) be directed to the coroner (c), in which 
 case the officer executing the writ is the servant of the coroner, 
 not of the sheriff(c^). If there be two sheriffs, and one of them 
 be a party to, or interested in, the suit, the writ should be di- 
 rected to the other, and not to the coroner (e). But it is other- 
 wise where one of two sheriffs dies ; for in that case it is said, 
 that the writ should not be awarded to the survivor (y). If the 
 coroner also be a party, then the writ should be directed to 
 elisors, named for that purpose by the Master (§■). When there 
 are more than one sheriff, as in the county of Middlesex, they 
 should be addressed by the writ in the plural number ; and 
 a direction to the " sheriff," instead of " sheriffs," would be 
 faulty (/i). And vice versa, where two or more persons constitute 
 but one officer, as in the city of London, the writ should address 
 them in the singular number, and it would be incorrect to style 
 them " sheriff*," instead of " sheriff" (i) ; though there is a case 
 in which the Court of Exchequer refused to set aside a writ so 
 directed (//•). The county should be correctly stated; but such 
 a trifling error as " Middesex" for " Midd/esex," does not, it 
 seems, vitiate the writ (/). 
 In a libeity. In the execution of writs, the sheriff is the known, public, and 
 
 (a) See R. V, Fowler, 1 Ld. Raym. (g) Andrews r. Sharp, 2 Blac. Rep. 
 
 586. 911 ; see Mayor of Norwich v. Gill, 
 
 (ft) Mayor of Kingston v. Bubb, 1 1 Dowl. 246; I M. & Scott, 91 ; 8 
 
 Dowl. 151. Bing. 27. S. C. 
 
 (c) Western v. Coulscn, 1 Black. (/;) Jackson v. Jackson, 3 Dowl. 
 Rep. 506. And if directed to the 182; 1 C. M. & R. 438, S. C. 
 sheriff, the court will set aside the writ, (i) Nicol v. Boyne, 2 Dowl. 761 ; 
 on affidavit that he is interested. 3 M. & Scott, 812; 10 Bing. 387, 
 
 (d) Sarjeant V. Cowan, 1 C. & M. S.C; Barkery. Weedon,2Dowl. 767 ; 
 491, Ulugh V. Kingswood, 1 Lord Ken. 
 
 (e) Letsom v. Bickley and others, 287. 
 
 5 Maule & Sel. 144; Rex v. War- (k) Clutterbuck v. Wiseman, 2 C. 
 
 rington, Salk. 152; S. C. 4 Mod. 65 ; & J. 213 ; and see Anon. 1 Tidd, 149. 
 
 12 Mod. 22; Carth.214; Comb. 191; (/) Colston v. Berens, 1 C. M. & 
 
 1 Show. 327; Rich I'. Player, 2 Show. R. 833; 3 Dowl. 253, S. C. over- 
 
 262, 286. ruling Hodgkicsoa v. Hodgkinson, 2 
 
 (/) 4 Mod. 65; Curie's case, 11 Dowl. 535. 
 Rep. 4 ; sed queer e.
 
 WRITS, TO WHOM DIRECTED. 65 
 
 CHAP. 
 
 SECT. 
 
 responsible officer of the court, whose process he is bound to 
 execute, and is justified in the execution of. A bailiff of a 
 liberty, we have seen, does not derive his authority to execute 
 a writ within his liberty immediately from the court, for he is 
 not the officer of the court; therefore if the bailiff of a liberty, 
 who hath execution and return of all writs therein, arrest a de- 
 fendant on process immediately directed to him, he will be a 
 trespasser (w). The writ should, in such a case, be directed to 
 the sheriff of the county, who provides for its execution in the 
 manner already pointed out in the fourth chapter. For instance, 
 in the Isle of Ely the writ is directed to the sheriff of Cambridge- 
 shire (?j), and in the borough of Southwark to the sheriff of 
 Surrey (o). 
 
 Writs, either on mesne process or in execution, should not be in the coim- 
 
 ii'<v>/. 1 • ■ ^• 1 I • ''*'' palatine- 
 
 directed to the sheriff of a county palatine immediately ; but in 
 
 the county palatine of Lancaster to the chancellor of the county 
 palatine, or his deputy there, commanding him, by writ under 
 the seal of the county palatine, to command the sheriff of such 
 county palatine to execute the writ (p). And the same in the 
 county palatine of Durham, since the act of G & 7 Will. 4, c. 
 19, by which the palatinate of Durham has been transferred 
 from the bishop to the crown, as a separate franchise and roy- 
 alty (p). As to the county palatine of Chester, however, the 
 writ is now directed to the sheriff of the county in the first 
 instance, the act of 1 1 Geo. 4, c. 70, s. 1 4, having abolished the 
 jurisdiction of the chamberlain, to whom writs were formerly 
 directed (q). The chancellor should not be directed to execute 
 the writ himself, but only to command the sheriff to execute it ; 
 a writ commanding the chancellor to execute it himself would 
 be a nullity (r). And as it is irregular to direct a writ in the 
 first instance to the sheriff of a county palatine, the court, on 
 motion, will set aside a writ so directed, and all proceedings 
 thereon (s) ; but the sheriff of a county palatine is not a tres- 
 passer for executing a writ immediately directed to him ; and it 
 
 (m) Grant v. Bagge and others, 3 (p) See 1 & 2 Vict. c. 110, s.3. 
 
 East, 128. Or the Court will set aside (7) See slat. 9 & 10 Vict. c. 44. 
 
 the writ on motion, Bowring i'. Prit- (r) Branbridgeu. Johnson, 3 Moore, 
 
 chard, 14 East, 289. 237 : 1 Bred. & B. 12, S. C. 
 
 (h) Grant v. Bagge, 3 East, 128. (s) Bradshaw v. Davis, 1 Chit. R. 
 
 (o^ Bowring i'. Pritchard, 14 East, 374. 
 289.
 
 66 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SECT. I. 
 
 Ill (he Cinque 
 Ports Ber- 
 wick, «Jtc. 
 
 In coiinliea 
 of cities and 
 boroughs. 
 
 In places sur- 
 rounded by 
 another 
 county. 
 
 has been lioldcn, that a bail-bond given by a defendant, arrested 
 
 by the sheriff of Durliarn by virtue of a writ directed to him, 
 
 was good(^). 
 
 Writs to be executed in the Cinque Ports should be directed 
 
 to the constable of Dover Castle, his deputy, or lieutenant (m) ; 
 
 in Berwick-upon-Tweed, to the mayor and bailiffs of that 
 
 borough (unless where the process is merely serviceable) (*') ; 
 
 for the Cinque Ports do not form part of the bailiwick of the 
 
 sheriff of Kent {x), and Berwick was never annexed to any 
 
 county (?/). 
 
 In cities and towns which are counties in themselves the writs 
 
 should be directed to the sheriff or sheriffs, as the case may be, 
 of the city or town. But in those which are not counties in 
 themselves, the writ should be directed in the same way as in 
 other parts of the county in which they are situate. And the 
 Municipal Corporation Act (5 & 6 Will. 4, c. 76,) has made no 
 difference in this respect ; for instance, in Oxford the writs 
 must still be directed to the sheriff of Oxfordshire (s), and the 
 same in other cities and boroughs not counties in themselves ; 
 thus we have seen that even in the borough of Southwark, 
 though a liberty, and having a bailiff, writs must be directed to 
 the sheriff of Surrey (a). 
 
 In " districts and places parcel of some one county, but wholly 
 situate within and surrounded by some other county," much in- 
 convenience and delay formerly occurred in the service and 
 execution of process ; to remedy which it has been enacted by 
 2 Will. 4, c. 29, s. 30, " that every such district and place shall 
 and may, for the purpose of the service and execution of every 
 
 (t) Jackson v. Hunter, 6 T. R. 71 ; 
 
 Needham v. Dennet, SirT. Raym. 171 ; 
 3 I'Last, 134; Cliapman v. RJaddison, 
 2 Sir. 1089 ; And. 198, S. C. ; R. T. 
 21 Car. 1. 
 
 (u) Williams v. Gregg, 2 Marsh, 
 550 ; S. C. 7 Taunt. 233, in which 
 case interlocutory judgtnent and all 
 proceedings were set aside, on the 
 ground that the writ, which was served 
 in Deal, within the Cinque Ports, was 
 directed to the sheriff of Kent. A 
 direction " I'd the Constable of the 
 Castle of Dover," instead of" Dover 
 Castle," is not irregular. Frank v. 
 James, 5 Dowl. 723. 
 
 (v) See 2 Burr. 855. In a case 
 where the mayor, &c. of Berwick were 
 the plaintiffs, the Court of Common 
 Pleas refused to set aside the service 
 of a capias ad respondendum, on ap- 
 plication being made on the ground 
 that the writ should have been directed 
 to elisors. Mayor of Berwick v, Wil- 
 liams, 10 Moore, 266. 
 
 (a) See Williams v. Gregg, 2 Marsh. 
 Rep. 550 ; S. C. 7 Taunt. 233. 
 
 {y) See 2 Burr. 850 et seq. 
 
 (z) Granger ti. Tauntoti, 5 Dowl. 
 190; 3 Bing. N. C. 64, S. C. 
 
 (a) Bowring V. Pritchard, 14 East, 
 289.
 
 WRITS TO WHOM DIRECTED. 
 
 67 
 
 writ and process (whether mesne or judicial) issued out of either chap. v. 
 
 of the superior courts at Westminster, be deemed and taken to — !i^_Ll_ 
 
 be part as well of the county wherein such district or place is so 
 
 situate as aforesaid, as of the county whereof the same is parcel; 
 
 and every such writ and process may be directed accordingly 
 
 and executed in either of such counties." But this enactment 
 
 does not apply where the place so surrounded is a county of 
 
 itself; for instance, in the case of a county of a borough which 
 
 is a county in itself, the writs must be directed to the sheriff of 
 
 the borough, not the sheriff of the surrounding county (b). 
 
 When a writ is delivered to the sheriif, he is hound to execute J'^^bat wru _^ 
 it. accordino- to the exigency thereof, without inquiring into the bom.d to exe- 
 
 ' o D J ' ••11 1 ciite, alio III 
 
 reo-ularitv of the proceeding whereon the writ is grounded ; and wi.ai cases 
 
 o J 1 o ,1111 protected. 
 
 it will be found, by a variety of cases, that although the process, 
 under which the sheriff takes the person or goods of the defendant, 
 be voidable (c), or erroneous, and of which the defendant might 
 have availed himself in the original action, yet such writ is a 
 sufficient justification (d!) for the sheriff in an action of trespass 
 brought against him, for the sheriff is a ministerial officer in the 
 execution of writs, and is not to examine their legality. So, on 
 the other hand, in an action for an escape, or for a false return, 
 brought against a sheriff, he cannot show that the process under 
 which he acted was erroneously awarded (e). But this position 
 is not universally true ; for if a sheriff pays over money levied 
 under aji.fa., with notice that the judgment on which the f. fa. 
 issued was fraudulent, he will be liable to a subsequent execution 
 creditor for the amount(/). And a distinction prevails between 
 cases where the court acts inverso ordine, by issuing irregular 
 process, or the like, and where there is a total want of jurisdiction 
 in the court; for the sheriff, in executing the process of a court 
 not having jurisdiction over the cause, would be a trespasser (/). 
 Upon the rule, that the sheriff is justified in the execution of 
 erroneous process, it was held, that if a cajnas be awarded 
 against a duke, earl, or other person having privilege of peerage, 
 
 (6) Davis V. Sherlock, 7 Dowl. 530. v. Bouchier, Sir. 993; Odes v. Clarke, 
 
 (c) Parsons u. Lloyd, 3 Wills. 345; 1 L. Raym. 397; S. C. 5 Mod. 413; 
 
 2 Keb. 705. Brown v. Complon, 8 T. R. 424 ; 
 
 {(l) Cro. Jac. 280, 289 ; 2 Saund. Thomas r. Hudson, 14 M, & W. 364. 
 
 100; Cro.Eliz.271; ib. i66, contra. (/) WarmolU'. Young, 5 B. & C. 
 
 (e) Case of the JNIarshalsea, 10 663; Imray u. Magnay, 11 M. & W. 
 
 Rep. 76 ; Bowsar v. Collins, 22 E. 4, 267. 
 33 b, there cited, Poph. 203 ; Smith 
 
 F 2
 
 68 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SECT. I. 
 
 against vvlioni a capias, by the law, doth not He, notwithstanding, 
 as the court hath jurisdiction of the cause, the sheriff is ex- 
 cused (g'). So if a sheriff arrest a person upon ca. sa., in which 
 a whole term intervenes between the teste and the return ; yet 
 this writ is a justification to the sheriff(/j). So the sheriff is 
 justified in arresting a person upon a writ tested out of term. 
 So if a ca. sa. be taken out after the year without a set. fa., and 
 the defendant be arrested thereupon, and after suffered to escape, 
 an action lies for this escape, though the process was erroneous ; 
 for the sheriff was bound to execute the writ, and therefore 
 cannot let him at large {i). And so in an action for rescuing a 
 debtor in custody upon mesne process sued out of the palace 
 court, it was decided that it was not a sufficient ground to arrest 
 the judgment, that it was not alleged that the cause of action in 
 the inferior court arose within the jurisdiction, or, that it was 
 not alleged that the party below did not appear on the return of 
 the wr\t{k). The distinction between the erroneous judgment 
 of a court having jurisdiction, and the want of jurisdiction, is 
 thus illustrated by Dalton : " If the justices of peace arraign a 
 person of treason in their sessions, who is convicted and exe- 
 cuted, this is felony as well in the justices as in the sheriffs or 
 officer who executed the sentence ; but if he had been indicted 
 of a trespass, found guilty, and hanged, though this had been 
 felony in the justices, yet it would not be so in the sheriff; be- 
 cause a matter in which the justices had jurisdiction, and which 
 they only were to blame in exceeding their authority" (/). And 
 where, in debt against a sheriff for the escape of one in execu- 
 tion, the declaration very unnecessarily stated, that A. obtained 
 
 (g) Isabel Countess of Rutland's Wils.255; Luttin tJ.Bennia, 11 Mod. 
 
 case. 6 Rep. 54. See also 10 Rep. 76. 50; Salk. 201; 1 Roll. Abr. 809; 
 
 (/i) Parsons v. Lloyd, 3 Wils, 341 ; Squibb v. Hole, 2 Mod. 29 ; Higgin- 
 
 S. C. 2 Blac.Rep. 845; Plucknet r. son v. Martin, 2 Mod. 195; see I 
 
 Grenes, 2 Keb.705; Shirley D. Wright, Vent. 369; 2 Lut«. 1.569. From 
 
 Lord Raym. 775; S. C. 2 Salk. 700; these cases it is to be collected, that 
 
 Nector v. Gennett, Cro. Eliz. 466 ; if it appeared in the declaration that 
 
 Wooden w. Moxon, 6 Taunt. 490 ; S. the original cause of action did not 
 
 C.2Marsh.l86. Q)(. in case of mesne arise within the jurisdiction, then the 
 
 process, see Willet i;. Archer, 1 Man. sheriff would not be liable for the 
 
 & Ry. 317. escape. 
 
 (i) Bush's case, Cro. Eliz. 188. (/) Dallon's Sheriff, 197. And if 
 
 See also Ognell v. Paston, Cro. Eliz. the Q. B. issues process in a real ac- 
 
 165 ; Keiser v. Tyrrel, 2 Bulstr. 256; tion, the sheriff should not execute it, 
 
 1 Salk. 273. for there is a want of jurisdiction. 2 
 
 (k) Bentley v. Donelly, 8 T. R. Bulstr. 64 ; Ualt. 105. 
 127. See also Bull v. Steward, 1
 
 SHERIFF BOUND TO EXECUTE WRITS, &C. 69 
 
 judgment in K. B. against B., who afterwards died intestate, 
 and the plaintiff took out administration by an inferior ordinary, - 
 namely, the archdeacon of B. and brought a scire facias upon 
 that judgment, to which he had judgment to have execution, 
 and thereupon a ca. sa. issued against B., upon which he was 
 taken, and in custody of the defendant, who was sheriff, &c., 
 and afterwards escaped ; and upon nihil debet pleaded, and a 
 verdict for the plaintiff, it was moved in arrest of judgment that 
 it appeared in the declaration, upon the plaintiff's own showing, 
 that the administration was granted by a peculiar jurisdiction, 
 whereas it likewise appeared that the intestate had bona notabilia 
 in another diocese, namely, the judgment at Westminster ; for 
 which reason the administration granted by a peculiar jurisdic- 
 tion by the archdeacon, was merely void ; and then an action of 
 escape would not lie against the sheriff, for the escape of a pri- 
 soner taken upon a void judgment; for if there were no judg- 
 ment ao-ainst B., there was no cause to detain him in prison. 
 
 -1 
 To which it was answered, and so resolved, that it was only 
 
 error, of which the sheriff could not take advantage in an action 
 for an escape brought against him ; and the difference was 
 where the judgment was merely void, or where it was only 
 erroneous ; and that depended on another distinction, namely, 
 where the court in which the judgment was obtained had cog- 
 nizance of the cause and where not ; for, in the first case, if the 
 plaintiff obtain a judgment, and by his own showing had no 
 cause of action, yet because the court had jurisdiction of the 
 cause, this is only an erroneous and not a void judgment ; but it 
 is otherwise where the court had no jurisdiction of the cause; 
 but in the present case the court had cognizance of the cause, 
 and therefore the matter was only error (in). But it does not 
 follow that the sheriff is bound to detain a person in his custody, 
 in every case where he would be justified in so doing ; thus, 
 where the defendant is privileged from arrest, the sheriff would 
 not be liable to an action for discharging him, although he would 
 be justified in detaining him (?0. So if a person was arrested 
 by the sheriff on the old process of latitat, in which a term in- 
 tervened between the teste and return, and was discharged, the 
 sheriff was not liable to an action of escape, notwithstanding he 
 
 (m) Gold V. Strode, 3 Mod. 324 ; («) See next chap. post. 
 
 S. C. Canli. 148. 
 
 CHAP. V. 
 SECT. I.
 
 EXECUTION AND RETURN OF WRITS. 
 
 CUAl". 
 
 SECT. 
 
 would be justified in executing such process (o). If tlie sheriff 
 be ordered to return non est inventus to a ca. sa., and in the 
 meantime the defendant siu-renders, he is bound to take him(p). 
 Whenever a writ of mesne i^rocess is delivered to a sheriff, 
 wherein the defendant is sued by a wrong name, the sheriff 
 should not execute it, for in such case, even if the defendant was 
 known by that name, or had assumed it in the particular case, 
 so as to afford a sufficient justification to the sheriff in acting 
 under it, yet he would not be liable to an action for not execut- 
 ing it ((^). Whereas on the other hand, unless the defendant 
 was as commonly known by the name by which he was sued 
 as his real name, the sheriff would be liable to an action of 
 trespass for taking the defendant or his goods under it (r). But 
 the sheriff is bound to execute a ca. sa. in which the defendant 
 is misnamed, for the defendant should have pleaded in abate- 
 ment, and by not doing so he has admitted the name by which 
 he is sued to be his real name («). 
 
 Section II. 
 
 How, where, and when the Sheriff may execute a Writ. 
 
 When the writ is delivered to the sheriff, or at the under- 
 sheriff's office, the sheriff may personally execute the writ {t). 
 So the under-sheriff, without a warrant, may execute the writ 
 in person, for he is the known and responsible officer of the 
 sheriff, and by his appointment clothed with all the powers of a 
 
 (o) Shirley v. Wright, Lord Raym. 
 775 ; S, C. 2 Salk. 790 ; Nector v. 
 Gennet, Cro. Eliz. 476. See also 
 Eden v. Lloyd, Cro. Eliz. 877. Qiuere 
 as to the justification, Willet v. Arthur, 
 
 1 Man. & Ry. 317. 
 
 (p) Magnay u. Mongor, 1 Dav. & 
 M.24; 4 Q. 15. 847, S. C. 
 
 (q) Morgans v. Bridges, 1 Bar. & 
 Aid. 647 ; and see Keisar v. Tyrrell, 
 
 2 Bulstr. 256. 
 
 (r) Cole V. Hindson, 6T. R. 234 ; 
 Shadgett v. Clipson, 8 East, 328; 
 Price V. Harwood, 2 Camp. 108 ; 
 Scondover v. Warne, 2 Camp. 270 ; 
 Finch i;. Cocken, 2 C. M, & K. 196 ; 
 Hoye V. Bush, 2 Scott, N. R. 86 ; 
 
 Brunskill w. Robertson, 9 Ad. & El. 
 840; 2 Per. & D. 269, S. C. See 
 Jarraain v. Hooper, 6 Man. & Gr. 
 827. 
 
 (s) Crawford v. Satchwell, Stra. 
 1218; Smith u.PaUen, 6 Taunt. 115; 
 1 Marsh. 474, S. C. ; Reevesu.Slatter, 
 7 B. & C. 486 ; Fisher v. Magnay, 1 
 Dowi. & L. 48. 
 
 (0 See per Liltledale, J., Rose v. 
 Tomblinson, 3 Dowl. 49, where the 
 warrant varied from the writ, and Lit- 
 tledale, J., expressed an opinion that 
 the sheriff might justify under the 
 writ, though the warrant were wrong. 
 And see R. v. Fowler, 1 Lord Raym. 
 586.
 
 SECT. II. 
 
 HOW SHERIFF MAY EXECUTE A WRIT. 71 
 
 general deputy (u). And it is laid down in Dalton (a;), that the chap 
 sheriff may command his servant by word only (without precept 
 in writing) to serve or execute any process, and it is good, and 
 any stranger may justify by command of the sheriff any seizure 
 of any goods or the taking of the defendant's person, without a 
 warrant ; but it is conceived that this only applies where the 
 sheriff is himself acting personally in the execution of the pro- 
 cess (y), and then, certainly, any person at his request may assist 
 him without a warrant (s). But where a warrant is directed to 
 a bailiff to execute a writ, the bailiff cannot depute the execution 
 of it to another person (a) ; yet it is not necessary that his should 
 be the hand that executes the writ ; it is sufficient if he be near, 
 and acting in the execution of such writ (6). 
 
 As soon as the writ is delivered at the sheriff's office, the or the w.n. 
 under-sheriff makes out a warrant to one or more bailiffs for the officer^ 
 execution of the writ, in the name and under the seal of the sheriff. 
 The warrant must be according to the nature of the writ, com- 
 manding the officer to obey the mandatory part of the writ: but 
 if there be a recital in the writ, it need not be inserted in the 
 warrant (c). It need not specify the court out of which the writ 
 issued ((/). By the stat. G Geo. 1, c. 21, s. 53, no high sheriff, 
 under-sheriff, their deputies or agents, shall make out any war- 
 rants before they have in custody the writs upon which such 
 warrants ought to issue, on forfeiture of 10^. ; and by s. 54 of 
 the same act, (after reciting the stat. 5 & 6 W. & M. c. 21, s. 4; 
 9 & 10 Will. S, c. 25, s, 42, which require the time of signing 
 any writ on mesne process to be indorsed thereon by the clerk 
 who signs the same,) every warrant upon any writ before judg- 
 ment to arrest any person shall have the same day and year set 
 down thereon as shall be set down on the writ itself, under for- 
 feiture of 10/., to be paid by the person who shall fill up or de- 
 liver out such warrant. If the warrant be directed to two or 
 
 (it) Dalt. 103. Sqq tinte, p. 35 e« 149; Pearson v. Yewens, 5 Bing. 
 
 seq. N. C. 489 ; Collins v. Yewens, 10 
 
 (i) Page 103, citing Bro. Faux Im- Ad. & El. 570. 
 prisonmetit, 43, Tresp, 339. (fo) Blatch v. Archer, Cowp. 63. 
 
 (v) Butsee per Littledale, J., Rose (c) Dalt. 117. For different forms 
 
 V. Tomblinson, ubi supra ; and see see Append. Blank printed forms of 
 
 Ilamor v. Lord Jermyn, 1 Ld. Raym. warrants may be had at all the law 
 
 190. stationers. 
 
 (z) Drakeu. Sykcs, 7 T. R. 113. (d) Astley v. Goodyer, 2 Dowl. 
 
 (<r) Lamb. 91 ; Dalt. 103 ; and 619 ; 2 C. & M. 682 ; 4 Tyr. 414. 
 sec Robinson v. Vcwens, 5 M. & W.
 
 EXECUTION AND RETURN OF WRITS. 
 
 more jolnl.li/ and severally, it may be executed by any one or 
 more of them, for as it is for the administration of justice, and 
 for the public good, that execution be made, the authority need 
 not be strictly pursued (e). But if the warrant be directed to 
 several haWiffs joint li/, but not severally ^ all must be acting in the 
 execution of the writ, and if executed by one, his acts are ille- 
 gal/). If the bailiff make an arrest or execute a writ before 
 the warrant is issued, he is a trespasser, and a warrant subse- 
 quently directed and delivered to him will not legalize his 
 acts {g). A bailiff is not bound to receive a warrant sent him 
 by post in a letter, the postage of which is unpaid {h). If the 
 warrant be directed to one person, and he inserts the name of 
 another bailiff, or if the place for the name be left blank, and 
 the name inserted after it is issued (i), the person whose name 
 was so substituted would be a trespasser for taking the defend- 
 ant or his goods under such a warrant {j). And by the stat. 
 9 Geo. 2, c. 23, s. 22, " every warrant that shall be made out 
 upon any writ, process, or execution, shall, before the service or 
 execution thereof, be subscribed or indorsed with the name of 
 the attorney, cleric in court, or solicitor, by whom such process, 
 &c. shall be sued forth." But the not subscribing or indorsing 
 the name on any warrant, &c. shall not vitiate the same ; but 
 such writ shall be valid and effectual, provided the writ whereon 
 such warrant is made out be regularly subscribed or indorsed ; 
 and every sheriff or other officer, who shall make out any war- 
 rant upon any writ, process, or execution, and shall not sub- 
 scribe or indorse thereon the name of the attorney, clerk in 
 court, or solicitor, who sued out the same, shall forfeit 51., to 
 be assessed as a fine by the court out of which such writ, &c. 
 shall issue ; one moiety to his majesty and the other to the per- 
 son aggrieved (k). The fees allowed for making out warrants 
 will be found in a subsequent section (/). 
 
 (e) White v. Wiltshire, Palm. 52 ; (i) Housin v. Barrow, 6 T. R. 122. 
 
 S. C. 2 Roil. Rep. 137 ; Dalt. 351 ; (/) Burslem v. Fern, 2 Wils. 47; 
 
 Lasbroke's case, Hutt, 127 ; Rex v. see Robinson v. Yewens, 5 M. & W. 
 
 Hobbs, Yelv. 25; S. C. Cro. Eliz. 149; Pearson t). Yewens, 5 Bing. N.C. 
 
 913; Co. Litt. 181 b. 489; Collins v. Yewens, 10 Ad. & 
 
 (/) Boydi;. Durand,2Taunt.l61. El. 570. 
 
 {g) Greene v. Jones, 1 Saund, 295, {k} 12 Geo. 2, c. 13, s. 4. 
 
 n. 5; Hall v. Roche, 8 T. R. 187. (/) Page 103. See Dew v. Par- 
 
 {h) Hart o. Weatherby, 4 Dowl. sons, 2 Bar. & Aid. 562 ; S. C. 1 Chit. 
 
 171. Rep. 295.
 
 HOW SHERIFF MAY EXECUTE A WRIT. 73 
 
 If a sheriff, having a good writ, make an ill warrant, it seems chap. v. 
 he may justify under the writ, but not the bailiff(»i). ^^^^' "' 
 
 It is said, that in executino; a writ, a sworn and known officer. Erroneous 
 
 _ .... warrant. 
 
 be he sheriff, under-sheriff, bailiff, or serjeant, need not show showing 
 his warrant or writ when he cometh to serve it upon any man's "^"^° • 
 person or goods, although the party demandeth it (??) ; but that 
 a special bailiff must show his warrant, if the party demands it, 
 otherwise he need not obey it. And it is not clear but that 
 every bailiff must do so (o). And even a known officer, upon 
 the arrest, ought to declare the contents of his warrant ; at 
 whose suit he makes the arrest ; out of what court ; when re- 
 turnable ; to the end that, if it be upon an execution, he may 
 pay the money, and so free his person ; or if on mesne process, 
 that he may put in bail, or agree with his adversary (p). And 
 if a bailiff make an arrest before the writ comes to the sheriff's 
 hand, or before the warrant is made upon it, the bailiff is a tres- 
 passer (q). 
 
 Before the statute of Westminster, the sheriff or his officers Of raising the 
 
 . , , • 1 1 • 1 posse comita- 
 
 might have raised the posse comitalus to execute the process tus. 
 issuing from the king's courts, and by that statute (West. 2nd, 
 cap. 39) it is provided : " That the sheriff, as soon as his bailiffs 
 do testifie that they found such resistance, forthwith all things 
 set apart (taking with him the power of the shire) he shall go 
 in proper person to do execution." This statute only applies to 
 writs of execution, and therefore in executing mesne process, 
 although the sheriff may, yet he is not compelled to raise the 
 posse comttatus (j). In raising the posse comitalus the sheriff 
 may command every one above the age of fifteen, and below the 
 rank of a peer, to assist him ; and persons acting, when the 
 sheriff raises the posse on writs of execution, are justified, al- 
 though there was no absolute necessity for raising it(s). But 
 the sheriff should not raise the posse comitatus unless resistance 
 is first shown (<). When the sheriff raises the posse, he is to 
 
 (m) Rex V. Fowler, I Lord Raym. (q) Greene u. Jones, ISaund. 299, 
 
 586 ; Rose v. Tomblinson, 3 Dowl. note 5. 
 
 49; WilliamsD.Lewis, I Chit.R.611. (r) Noy, 40 ; 1 Stra. 432 ; Cro. 
 
 (?n Mackalley's case, 9 Rep. 69, Jac. 419 ; 1 Roll. Rep. 440. 
 
 Qlh Reiobttion; Dali. 109, 110, 111. (s) Dalt. 355; 5 Hen. 7, 4, 5. 
 
 (o) Hall V. Roche, 8 T. R. 188; (t) 2 Inst. 454 ; Hob. 62. 264. It 
 
 and see Robins v. Hender, 3 Dowl. wouldappear thai a warrant to execute 
 
 543. a writ is a sufficient authority to the 
 
 (/)) Mackalley's case, 9 Rep. 68 ; sheriff's officers to raise the jwsse comi- 
 
 the Countess of Rutland's case, 6 talus, if necessary, Dali. 355, 356. 
 Rep. 54 a.
 
 74- EXECUTION ANC RETURN OF WRITS. 
 
 CHAP. V. judge of the force requisite, and for that reason the court, in one 
 _f^;^Ilij_ case, would not declare three hundred men to be excessive (m). 
 There are several particular statutes respecting the sheriff quel- 
 ling riots in some bad parts of the metropolis, but by the change 
 of times these have become obsolete (u). At this day, when the 
 sheriff raises the jiosse in his county to execute a writ, he incurs 
 considerable expense, yet there does not seem any means by 
 which the sheriff can be remunerated for such expense ; on the 
 other hand, the law has imposed the obligation upon every one 
 to attend the sheriff when required, without prescribing any re- 
 ward, therefore all sums paid by the sheriff to the posse are gra- 
 tuitous on his part. 
 Where. The authority of the sheriff is confined to the county whereof 
 
 coiiniy. he is sheriff; if the sheriff therefore execute a writ out of his 
 
 county, he is a trespasser : but on a writ of habeas corpus, the 
 sheriff has power to carry a prisoner in his custody through other 
 counties {x) ; and on fresh pursuit, the sheriff may, in another 
 county, retake a person who has escaped from his custody (?/). 
 Thus, if the sheriffs of London, on a writ directed to them, 
 make an arrest in the county of Middlesex, or vice versd, the 
 arrest is void («), and will be set aside on motion, or summons 
 at chambers, provided it sufficiently appear on affidavit that the 
 arrest took place in the wrong county, and that there is no dis- 
 pute as to the boundaries (a). 
 Places sui- The 2 Will. 4, c. 39, s. 20, after reciting that there are " cer- 
 
 oXr county, tain districts and places parcel of some one county, but wholly 
 situate within and surrounded by some other county,'' enacts, 
 " that every such district and place shall and may, for the pur- 
 pose of the service and execution of every writ and process, 
 whether mesne or judicial, issued out of either of the said courts, 
 be deemed and taken to be parts as well of the county within 
 which such district or place is so situated as aforesaid as of the 
 county whereof the same is parcel, and every such writ and pro- 
 cess may be directed accordingly, and executed in either of such 
 counties (&)." 
 
 (u) Dalt.355; see also 1 Keb.99. Sel. 414. 
 
 (t;) 8&9Will.3, c.27j 9 Geo 1, (a) Webber v. Manning, 1 Dowl. 
 
 c. 21. 24; Lloyd v. Smith. 1 Dowl. 372; 
 
 (:r) 2 Roll. Rep. 163; PIowd.37a. Storer v. Rayson, 4 D. & R. 739. 
 
 (y) Dalt. 23. (b) See also 2 & 3 Vict. c. 82, and 
 
 (s) Hammond v. Taylor, 3 Bar. & 7 & 8 Vict. c. 62. 
 Aid. 408 ; see Chase v. Joyce, 4 M. &
 
 HOW SHERIFF MAY EXECUTE A WRIT. 75 
 
 It is not lawful for the sheriff to make an arrest or execute a chap. v. 
 writ in the queen's presence, or in a court of justice, whilst the 
 
 justices are sitting, or in any of the royal palaces (c), or their Palaces. 
 verge, unless by leave of the board of green cloth (d), or in the 
 Tower (e). In such cases, however, the execution is not void, Tower, 
 but only a contempt, and it will not be set aside on motion (/). 
 
 If the sheriff enter a franchise, the owner of which has the Franchise. 
 execution and return of writs, and execute a writ without a non 
 omittas clause therein, the execution is good (^■), although the 
 sheriff may be liable to an action at the suit of the owner of 
 the franchise, for an infringement thereof (A). 
 
 To execute a writ at the suit of the king, as an extent or the When the 
 
 . . officer may 
 
 like, the sheriff may (after signifying the cause of his commg enter houses 
 and demanding admission) (i) break open the outer door of a open doors, 
 house wherein the defendant or his goods may be {j ) ; so in exe- 
 cuting a capias utlagatum, the sheriff may break open the outer 
 door of a house {k). The sheriff or his officer may also break 
 open an outer door in executing a writ of seisin or habere facias 
 possessionem {I) ; but to execute any other writ or process in 
 civil actions, whether on mesne process or in execution, the 
 sheriff cannot break open the outer door of the defendant's 
 dwelling-house (m), for it is said every man's house is his castle 
 and fortress, as well for defence against injury and violence, as 
 for his repose (n). A distinction has been supposed to exist in 
 this respect between the outer door of the defendant's own house 
 and that of a third person in which the defendant or his goods 
 are concealed. The words of Lord Coke, from which that doc- 
 trine has been drawn, are as follows (o) : " It was resolved, that 
 
 (c) Winter D. Miles, 10 East, 578 ; (j) Semayne's case, 5 Rep. 92; 
 1 Camp. 475; Gilb. C. P. 27 ; Bell S.C. Cro.Eliz.908; 4Leon.4; Fitz. 
 y. Jacobs, 1 Moo. & P. 309 ; 4 Bing. Trespass, 232; Bro. Trespass, 248; 
 523. S.C. Burdeltv. Abbolt, 14 East, 157; La- 
 
 (d) Rex V. Stobbs, 3 T. R. 735; nock v. Brown, 2 Barn. & Aid. 592. 
 see Winter v. Miles, 1 Camp. 475 ; {k) 2 Hale's P. C.202 ; Semayne's 
 10 East, 578, S. C. case, 5 Rep. 92 ; Rex v. Bird, 2 Show. 
 
 (e) See Batsoa v. M'Clean, 2 Chit. 87. 
 
 Rep. 51 ; Bell v. Jacobs, 1 Moo. & (l) Semayne's case, 5 Rep. 92, 1st 
 
 P. 309. Resolution. 
 
 (/> Sparks v. Spinks, 7 Taunt. (m) Semayne's case, 5 Rep. 90; 
 
 311. S.C. Cro. Eliz. 908; 4 Leon. 4; 
 
 (&) PiggoU V. Wilkes, 3 B. & Aid. Cooke's case, Cro. Car. 537; S.C. 
 
 502 ; Sparks v. Spinks, 7 Taunt. 311. Sir W, Jones, 429 ; Foster v. Hill, 1 
 
 (h) Sec Carrett v. Smallpage, 9 Bulslr. 146. 
 
 East, 330. (") /(/. ibid. 
 
 (j) Launock v. Brown, 2 Barn. & (o) See 5 Rep. 93, 5(/i Resolution; 
 
 Aid. 592. Foster, 309.
 
 76 EXECUTION AND RETURN OF WRITS. 
 
 SECT. II. 
 
 cHAH. V. the house of any one is not a castle or privilege but for himself, 
 and shall not extend to protect any person who flies to his 
 house, or the goods of any other, wliich are brought and con- 
 veyed into his house, to prevent a lawful execution, and to es- 
 cape the ordinai-y process of the law, for the privilege of his 
 house extends only to him and his family, and to his own proper 
 goods, or to those which are lawfully and without fraud and covin 
 there." This has been construed to mean that the outer door of 
 the house of a stranger, in which a defendant or his goods are, 
 may be broken open to execute a writ: but it seems evident 
 that Lord Coke only means to refer to cases of fraudulent con- 
 cealment of goods, or the retaking a prisoner who has escaped, 
 on fresh pursuit, or on an escape-warrant (p) ; in which latter 
 case of retaking a prisoner who has escaped, on fresh pursuit, 
 any outer door may, after request, be broken open, just as in the 
 case of the crown (q). It is laid down as the result of the cases, 
 in a very able work (r), that, although the sheriff may (after 
 request made) justify breaking open the outer door of a third 
 person's house, in order to execute process of the law upon the 
 defendant or his property removed thither in order to avoid an 
 execution, still he does so at his peril, for if it turn out that the 
 defendant was not in the house or had no property there, he is a 
 trespasser (s). It has also been considered that the sheriff cannot, 
 even though he may have grounds for suspicion, justify entering 
 the dwelling-house of a third person, although he breaks no 
 door, unless it prove in the event that the defendant or his 
 goods were actually therein (/). The author above referred to 
 however goes on to say (?«), that circumstances may exist under 
 which the sherifl' would be justified in entering the house of a 
 stranger on suspicion, even though the defendant were not actu- 
 
 (p) Per Best, C. J., in Rex v. ton, 3 B, & R. 229, explained in 
 
 Conolly, Hertford Spring Assizes, Hutchinson v. Birch, 4 Taunt. 627 ; 
 
 1824; see also Hutchinson v. Birch, Com. Dig. Execution, C 5; see White 
 
 4 Taunt. 619 ; Johnson v. Leigh, 6 v. Wiltshire, Palm. 52; 2 Rol. Rep. 
 
 Taunt. 248 ; Cooke v. Birt, 5 Taunt. 138 ; Biscop v. White, Cro. Eliz. 759 ; 
 
 765. judgment in Cooke v. Birt, 5 Taunt. 
 
 (q) R.D. Gansel, Lofft, 380; see 769; Moiiishi;. Murrey, 13M.&W. 
 
 Genner v. Sparkes, 1 Salk. 79 ; 6 Mod. 52. 
 
 173; Whilet'. Wiltshire, 2 Rol. Rep. (t) Cooke v. Birt, 5 Taunt. 765, 
 
 138; Lloyd v. Sandilands, 8 Taunt. per Gibbs, C. J. and Dallas, J.; 
 
 280. Johnson v. Leigh, 6 Taunt. 248, per 
 
 (r) John William Smith's Leading Gibbs, C. J. ; Morrish v. Murrey, 13 
 
 Cases, 44, n. M. & W. 52. 
 
 (s) Johnson v. Leigh, 1 Marsh. (u) John William Smith's Leading 
 
 565; 6 Taunt. 248; Ratcliffe f. Bur- Cases, 45.
 
 HOW SHERIFF MAY EXECUTE A WRIT. 77 
 
 ally there. And he instances the case of the defendant being chap. v. 
 on a visit with a third person, where the house of the third per- ^^^ '^' "' 
 son would be pro tempore the defendant's dwelling-house (x), so 
 that the outer door could not be broken open even after demand 
 and refusal ; and also the case where fraud is used to inveigle 
 the sheriff into a belief that the defendant is in the house. The 
 right of the sheriff to enter the defendant's own house does not 
 depend upon the contingency of the defendant being there, for 
 that is the most natural place for the defendant or his goods to 
 be. And on the same principle, where there is a judgment 
 against an administratrix de bonis testatoris, and she marries, the 
 sheriff may enter her husband's house to search for the goods 
 of the testator (?/)• 
 
 If the officer gain admittance at the outer door of a house, he 
 may break open the inner doors or chests to do execution (s), 
 even without first demanding that such doors should be 
 opened (a). And in like manner, the sheriff may break open 
 the door of a barn detached from a dwelling-house and not 
 within the same curtilage, to do execution, although the door 
 may be locked (b). Also, if, after a peaceable entrance at the 
 outer door of a house, the sheriff or officer be locked in, he may 
 justify breaking open the outer door to get out, and the court 
 would probably grant an attachment against the defendant (c). 
 And it is said that goods may be taken through a window, if 
 open(rf). If the sheriff break open an outer door when he is 
 not justified in so doing, this, it is said, does not vitiate the 
 execution, but merely renders the sheriff liable to an action of 
 trespass (e). In practice, however, the courts will discharge a 
 defendant out of custody when so arrested, or order goods so 
 seized to be restored. 
 
 The sheriff is, in general, bound to set about executing all At what time 
 writs delivered to him within a reasonable time after he receives ,na/and 
 them for execution, and if he omit doing so, and any damage \^^l Ihrwrit. 
 
 (x) See Shears v. Brooks, 2 H. Bl. (/)) Penton v. Browne, 1 Sid. 186; 
 
 129. S. C. 1 Keb. 698; Bac. Ab. tit. 
 
 (v) Cooke V. 15irt, 5 Taunt. 771. Sheriff, (N. 3). 
 
 (z) Sir Thomas Kemp and Wind- (c) White v. Wiltshire, Cro. Jac. 
 
 sor's case; Lee v. Gansel, Cowp. 1 ; 555; S. C. 2 Rol. Rep. 137; Palm. 
 
 Lloyd V. Sandilands. 8 Taunt. 250 ; 52 : Pugh v. Griffith, 7 Ad. & El. 
 
 S. C. 2 J. B. Moore, 207 ; see also 5 827 ; 3 N. & P. 189, S. C. 
 Rep. 92. ((/) 1 Rol. Abr. 671, pi. 7; see 
 
 (o) Hutchinson v. Birch, 4 Taunt. Doe v. Trye, 5 Bing. N. C. 573. 
 619 ; Ratcliffe v. Burton, 3 Bos. & (e) Semayne's case, 5 Rep. 93 a. 
 
 Pul. 223. But see Bac. Abr. Eiecutiou, (N.)
 
 78 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. arise froiTi such omission, he is answerable for it(/). His 
 ^^^'^- "• power to execute the writ continues from the time it is delivered 
 to him until the expiration of the return day of the writ, if re- 
 turnable on a particular day(g-). The sheriff could not execute 
 process between the return day and the quarto diejwst^h), and 
 for so doing he would be a trespasser, as the four days between 
 the return day and the quarto die jwst were merely ex gratid {i). 
 But where the sheriff held an inquest on the return day of the 
 writ, but the jury did not give their verdict for two or three 
 days afterwards, the writ was held to be well executed (A;). 
 So, where a writ of trial under 3 & 4 Will. 4, c. 42, was return- 
 able on the 27th July, and the trial commenced on that day, but 
 the verdict was not delivered till the 28th, an objection by the 
 unsuccessful party, on motion for a new trial, that the sheriff had 
 no power to receive and enter the verdict, was not entertained (Z). 
 If the trial have not commenced before the writ is returnable, the 
 proper course would seem to be to apply to a judge to have the 
 time extended (w) ; although it has been said that even in such 
 case the court would amend the record on motion (n). Where 
 no particular return day is mentioned, but the writ is returnable 
 " immediately after execution," the power of the sheriff (while 
 in office) to execute the writ continues until the writ is actually 
 executed or returned, even though it be a writ of execution, and 
 more than a year has elapsed from the time of the judgment (o). 
 If, however, the execution of it be in the mean time counter- 
 manded by the execution creditor, the sheriff is a trespasser if 
 he proceed to execute it notwithstanding (;)). In the case of 
 
 (/) Brown v. Jarvis, 1 M. & W. (h) 2 Roll, Abr. 278, pi. 10, cit. 
 
 704; 5Dowl. 285, S.C. ; see Jacobs 33 Hen. 6, 45, 46; Ellis v. Jack- 
 
 V. Humphries, 2 C. & M. 13; Bates son, 1 Lev. 143; S. C. 1 Sid. 229; 
 
 V. Wingfield, 2 N. & M. 831'; Aire- 1 Keb, 718, 805; see Loveridge v. 
 
 ton V. Davis, 9 Bing. 740; 3 M. & Plaistow, 2 H. Bl. 29. 
 
 Scott, 138, S. C. ; Doker v. Hasler, (i) See Coulson v. Haramon,2 Bar. 
 
 2 Bing. 479 ; 10 Moore, 210, S. C. ; & Cres. 626 ; S. C. 4 D. & R. 160. 
 
 Randell v. Wheble, 10 Ad. & El. (k) 2 Rol. Abr. 278. pi. 5, Dj^ke 
 
 719 ; Mason v. Paynter, 1 Gale & D. v. Blakslon, 2 Lord Raym. 1449. 
 
 386; Clifton w. Hooper, 6 Q. B. 468. (/) Pinkney i;. Booth, 1 Dowl. 
 
 (g) Bugberd's case, Cro. Eliz. 180 ; N. S. 421. 
 
 Gaven v. Ludlow, ib. 468; WoUey (m) Mortimer v. Preedy, 3 M. & 
 
 t; Moseley,i6.761 ; S. C. Moor,71 1 ; W. 602. 
 
 Anon. 3 Salk. 51 ; 2 Roll. Abr. 278; (n) Slierraanw.Tinsley,4Scott,286. 
 
 Parlims v. Wollaston, 6 Mod. 130. (o) Simpson v. Heath, 5 M. & W. 
 
 Even after the rising of the court on 631 ; Greenshields y. Harris, 9 M. & 
 
 that day, Maud v. Barnard, 2 Burr. W. 774; Thomas i'. Harris, 1 Dowl. 
 
 812; Dyke v. Blakston, 2 Lord N. S. 793. 
 
 Raym. 1449; Towne v. Crowder, 2 (p) Hunt v. Hooper, 12 M. & W. 
 
 C. & P. 355. 664.
 
 WHEN SHERIFF JIAY EXECUTE A WRIT. 79 
 
 some writs a certain time is prescribed by statute within which cuap. v. 
 the writ is to be executed ; e. g. the capias under 1 & 2 Vict. ^'^"' "' 
 c. 110, s. 3, must be executed within a month. 
 
 Before the 3 & 4 Will, 4, c. 99, if the sheriff levied goods on After yeai of 
 a^. fa. and went out of office, he might still have proceeded to 
 sell the goods, even without a venditioni exponas, for the same 
 sheriff that began must have finished the execution (q). Whether 
 the 7th section of that statute makes any difference in this re- 
 spect has been already considered (r). 
 
 By the statute 29 Car. 2, c. 7, s. 6, it is enacted, " That no The sheriff 
 
 ■^ cannot exe- 
 
 person upon the Lord s day shall serve or execute, or cause to cute a writ 
 
 , \ ,. -.-on a Sunday. 
 
 be served or executed, any writ, process, warrant, order, judg- 
 ment, or decree (except in cases of treason, felony, or breach of 
 the peace), but that the service of every such writ, process, 
 warrant, order, judgment or decree shall be void to all intents 
 and purposes whatsoever, and the person or persons so serving 
 or executing the same shall be liable to the suit of the party 
 grieved, and to answer damages to him for doing thereof, as if 
 he or they had done the same without any writ, process, warrant, 
 order, judgment, or decree at all." It has been holden that, 
 under the provisions of this statute, the execution of a writ of 
 inquiry on a Sunday is bad (s) ; and that the statute extends to 
 render void the mere service of process on a Sunday. Thus, 
 the service on a Sunday of a Master's order {t), or of an award (m) 
 to ground an attachment, has been held void ; for neither of these 
 is in the nature of a criminal proceeding, but of a civil execution. 
 So on this statute it has been held, that an arrest on Sunday 
 upon a capias utlagatum(x), or for non-payment of a penalty 
 upon conviction (y), is void ; but after a negligent escape the 
 defendant may be retaken on Sunday, either upon fresh pursuit 
 or upon an escape warrant, for this is not an original taking (2). 
 And it would seem that bail may take their principal on Sunday, 
 in order to surrender him, for he is considered to be always in 
 
 (q) Ayre v. Aden, do. Jac. 73; 1 plea served on a Sunday is void by 
 
 Salk. 323; 1 Ves. 196. this statule, Roberts v. Monkhouse, 
 
 (r) Ante, pp. 24, 25. 8 East, 547. 
 
 (s) Hoyle v. Lord Cornwaliis, 1 (x) Barnes, 319. 
 
 Stra. 387. (ly) Kex v. Myers, 1 T. R. 265. 
 
 (0 M'lleham v. Smith, 8 T. R. 86. (2) Parker v. Sir W.Moore, 6 Mod. 
 
 («) Rex V. Myers, 1 T. R. 266; 95; S. C. 2 Lord Raym. 1028; 2 
 
 and it has been holden that notice of Salk. 626.
 
 80 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. their custody ; and this case does not fall within the statute, 
 ^^'^^' "• inasmuch as this is not by virtue of any process at all (rt). But 
 the sheriff cannot retake a party on Sunday after a voluntary 
 escape (/>). It would appear that a citation out of the spiritual 
 court might be served on a Sunday (c) ; or an attachment for a 
 rescue (c?); or a person may be arrested on a Sunday on the 
 Lord Chancellor's warrant, on an order of commitment for con- 
 tempt (e). And a person may voluntarily surrender himself to 
 prison on a Sunday if he will {/ ). As, after a voluntary escape, 
 a party cannot be retaken on a Sunday, so where A. was arrested 
 at the suit of B., and discharged, the sheriff not knowing that 
 there also was a detainer in his office at the suit of C, and on 
 the Sunday following he was arrested at C.'s suit, the court held 
 this arrest void (g). But where a defendant, in custody in the 
 county gaol on a ca. sa., received on a Saturday an order from 
 the creditor for his discharge, which was on the same day for- 
 warded by the gaoler to the under-sheriff, who lived at another 
 town in the county, and on the Sunday a warrant of detainer on 
 another ca, sa., which had been received by the sheriff on the 
 Saturday, was forwarded to the gaoler, who thereupon detained 
 the defendant, it was held that he had no right to his discharge ; 
 for the sheriff was entitled to a reasonable time to search his 
 office for other writs against the defendant, which time would 
 not elapse till the Monday (h). 
 
 Where a person has been arrested, or served with a process 
 on a Sunday, the arrest or service is wholly void, so much so, 
 that no waiver by the party can cure the irregularity (i). And 
 if the defendant or his goods be in the custody of the sheriff, 
 the court will set the execution aside, or discharge the defendant 
 out of custody, on motion (j ). And it seems quite clear, from 
 the words of the statute, that an action of trespass would lie 
 against the sheriff, if he took either the defendant or his goods 
 
 (a) Anon. 6 Mod. 231; 1 Atk. (d) Anon. Willes, 459. 
 
 239. Sed vide Brookes v. Warren, 2 (e) Semb. 1 Atk. 55. 
 
 Blac. Rep. 1273, contra. (/) Ibid. 
 
 (6) Featherslonhaugh v. Atkinson, (g) Atkinson v. Jameson, 5 T. R. 
 
 Barnes, 273; Atkinson v. Jameson, 25. 
 
 5 T. R. 25. He cannot retake him (h) Samuel v. Buller, 1 Exch. R. 
 
 on any day. 439. 
 
 (c) Alanson v. Brookbank, 5 Mod. (i) Taylor v. Phillips, 3 East, 155. 
 
 449; Carth. 504 ; Walgrave »>. Tay- {j) 5 T. R. 25 ; see also 6 Mod. 95. 
 lor, 1 Lord Raym. 706; 12 Mod. 606.
 
 OF THE RULE OR ORDER TO RETURN THE WRIT, 81 
 
 SECT- II. 
 
 by virtue of any civil process on Sunday (A;). And as all arrests chap. v. 
 are unlawful which are made on a Sunday, it would appear to 
 be the better opinion, that if a sheriff's bailiff attempt to arrest 
 a person on a Sunday, and that person resists and slays the 
 bailiff, this is not murder {I). 
 
 Section III. 
 Of the Rule or Order to return the Writ. 
 
 Regularly, the sheriff should make his return to every writ(?»): whm ii ii 
 but it is not usual for sheriffs to do so, unless ruled for that "txarTl^e ** 
 purpose. The writ of elegit, however, is an exception to this ; "" ' 
 for if lands be extended on it, it is absolutely essential that it 
 should be returned (?i). And it has been doubted whether the 
 sheriff ought not to return writs returnable immediatley after 
 execution, without waiting for a rule(o). The writ is no justi- 
 fication to the sheriff for arresting a person upon mesne process, 
 unless it be shown that it is returned (^j) ; otherwise of writs of 
 execution (y). 
 
 The party whose writ it is may rule the sheriff to return it at who may 
 any time. The party against whom it issued may rule the sheriff to rein'm, 
 to return it after the object of the writ has been effected (r). "" " *"* 
 But it seems that this could not be done by such party before 
 that time, except on special grounds (*). And a side -bar rule 
 obtained for such a purpose was discharged by the Court of 
 C. P. (t). If it could be done before, it would be in the power 
 of any person against whom a writ returnable " immediately 
 after execution" issues, to defeat the writ, by ruling the sheriff 
 to return it as soon as he knows of its existence, and before it is 
 executed (m). It may sometimes be advisable for the person 
 
 (fc) Wilson V. Guttery, 5 Mod. 95 ; S. C, Salk. 410; Lord Raym. 632. 
 
 S. C. Salk. 78, nomine Wilson v. (g) Cheasley v. Barnes, 10 East, 
 
 Tucker ; and see 6 l\Jod. 95. 73 ; Rowland >;, Veale, Cowp. 18. 
 
 (/) Hawk. P. C. c. 32, s. 58. (r) See Edmunds v. Watson, 7 
 
 (m) See Woodman v. Gist, 8 C. Taunt. 5; 2 Marsh. 333, S.C.; France 
 
 & P. 213. V. Clarkson, 2 Dowl, 532. 
 
 (n) Hoe's case, 5 Rep. 90; Gar- (s) Daniels v. Gompertz, 2 Gale & 
 
 raway d. Harrington, Cro. Jac. 569. D. 751. 
 
 (o) Woodman v. Gist, 8 C. & P. (t) Williams v. Webb, 2 Dowl. 
 
 213. It is not easy to see the distinc- N. S. 904. 
 
 tion. (w) See Daniels v.Goropertx, 2 Gale 
 
 (p) Britton v. Cole, Salk. 409; & D. 751. 
 Freeman r. BleweU, 12 Mod. 394 ;
 
 82 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SECT. III. 
 
 May be 
 rilled ID 
 term or va- 
 cation. 
 
 When the 
 old sheritf 
 may be 
 ruled to re- 
 torn. 
 
 against whom the writ issues to rule the sheriff to return it, in 
 order to prevent improper conduct in the officer. The court 
 will not however, at the instance of the party against whom a 
 writ of ^. fa. issued, order the sheriff to make a specific return 
 of the goods sold and their proceeds, on the ground that the 
 officer has wasted the property seized (a;). 
 
 By the common law, the rule could only have been obtained 
 in term time. But by 2 Will. 4, c. 39, s. 15, " It shall be lawful 
 in term time for the court out of which any writ issues hy 
 authority of this act, or any writ of capias ad satisfaciendum, 
 fieri facias, [including the ancillary process of venditioni ex- 
 ponas (?/)], or elegit, shall have issued, to make rules, and also 
 for any judge of either of the said courts, in vacation, to make 
 orders for the return of any such writ, and every such order 
 shall be of the same force and effect as a rule of court made 
 for the like purpose ; provided always, that no attachment shall 
 issue for disobedience thereof until the same shall have been 
 made a rule of court (s)." 
 
 If the sheriff execute a writ, and go out of office, as in strict- 
 ness he ought to have returned the writ before he was out of 
 office, he is still liable to be ruled to return the writ, and to an 
 attachment for not returning it, for the contempt was actually 
 committed whilst he was a servant of the court (a). It is, how- 
 ever, enacted by the statute 20 Geo. 2, c. 37, " That no sheriff 
 shall be liable to be called upon to make a return of any writ or 
 process, unless he be required so to do within six months after 
 the expiration of his said office." The word required, means 
 ruled to return ; therefore the sheriff is not liable to an attach- 
 ment for not returning a writ if not ruled, although requested so 
 to do, within that time (6). The months mentioned in this 
 statute have been construed to mean lunar months (c). And 
 according to R. v. Adderley (c?), the day on which he goes out 
 of office is to be reckoned in the six months, but it may be 
 doubted how far that case is consistent with more modern 
 decisions (e). It is reported to have been decided in one case 
 
 (i) Wlllett V. Sparrow, 2 Marsh. 
 293 ; 6 Taunt. 576, S. C. 
 
 (y) Hughes v. Rees, 4 M. & W. 
 468; 7Dowl.56,S.C.; Reg.i;. Berles, 
 6 Dowl. P. C. 97. 
 
 (2) See post, 85. 
 
 (a) Rex D. Addeiley, Doug. 464; 
 and see Rex v. Sheriff of Middlesex, 
 
 4 East 604 
 
 (h) Rexi;.Jones,2T.Rl.; Doug. 
 463, n.; see Garth t>. Hopkins, 3 
 Dowl. 711. 
 
 (c) Rex V. Adderley, Doug. 463. 
 
 Id) Doug. 463. 
 
 (e) See Webb v. Fairmaner, 3 M. 
 & W. 473, where the cases are col-
 
 OF THE RULE OR ORDER TO RETURN THE WRIT. 83 
 
 CHAP. V. 
 SECT. III. 
 
 that a sheriff, under special circumstances, might be compelled 
 to return a writ, though he had been more than three years out 
 of office (/). But the statute 20 Geo. 2, c. S7, was not adverted 
 to. The subject of the transfer of unexecuted writs to the in- 
 coming sheriff has been already discussed {g). 
 
 If the plaintiff has taken an assignment of the bail bond, he <?»«" "•'"^ 
 
 , J . , , . , . , . 'the sheriff 
 
 has determmed his election, and is not at liberty afterwards to cannot be 
 
 ^ ^ 1 • rr- ^ • r- rultil to re- 
 
 rule the sheriff to return the writ of capias (Ji). If however the turn the wrii. 
 bond be void, as being executed after the return of the writ, or 
 the like, the sheriff may be ruled to return the writ, notwith- 
 standing an assignment of the bail bond (i). 
 
 It has been holden that the sheriff cannot be ruled by the 
 plaintiff to return the writ, where it has been executed by a 
 special bailiff, appointed by the plaintiff or his agent {k). But 
 it seems that if in such a case it becomes essential, with a view 
 to further proceedings, that a return should be made, e. g. where 
 after a.Ji.fa., under which an unproductive seizure has been 
 made, the plaintiff wishes to issue a ca, sa., the plaintiff, after 
 informing the sheriff of the purpose for which the return is 
 desired and offering an indemnity, may, in case of refusal, rule 
 him to return the writ (/). Where the plaintiff takes from 
 the defendant a cognovit, conditioned to pay the debt and costs 
 by instalments (m), or where the parties, either with or without 
 their attorney's consent, compromise, so that the sheriff cannot 
 complete the execution, and the return would be useless (n), 
 or there is any collusion between the officer and the plaintiff or 
 his attorney (o), or the plaintiff (or his assignees, if he has be- 
 come bankrupt or insolvent) has made an arrangement with the 
 
 lected. Rex v. Adderley may perhaps appointed. 
 
 be supported on the ground there sug- (/) Harding v. Holder, 3 Scott. 
 
 gesled by Parke, B. N. R. 293; 2 Man. & Gr. 914j 9 
 
 (/) Wilton V. Chambers, 3 Dowl. Dowl. 659, S. C. 
 
 338. (m) Rex v. Sheriff of Surrey, 1 
 
 (g) Ante, J). 2^,25. Taunt. 159; Farmer v. Thorley, 4 
 
 (h) Elherick f. Cowper, 1 Salk. 99; Bar. & Aid. 91 ; and see Rex v. The 
 
 Lord Brooke i;. Stone, I Wiis. 223. late Sheriff of Middlesex, 2 Bing. 
 
 (0 Id. ibid. 366. 
 
 (fc) Hamilton v. Dalziel, 2 Blac. (n) Alchin d. Wells, 5 T. R. 470; 
 
 Rep. 952; DeMoranda «. Dunkin,4 Hodges v. Jordan, 5 Dowl. 6; see 
 
 T. R. 119. See also Porter v. Viner, Edmunds v. Watson, 2 Marsh. 333; 
 
 1 Chit. Rep. 613, n. ; Palister v. 7 Taunt. 5, S. C; Balsonu. Meggatt, 
 
 Palister, i6. 614, n. See fully ante, 4 Dowl. 558. 
 
 p. 40, 41, as to the liability of the (o) Rustonu. Hatfield, 3 B. & Aid. 
 
 sheriff where a special bailiff has been 204 ; 1 Chit. R. 613, S. C. 
 
 G 2
 
 84 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SECT. III. 
 
 The rule 
 order. 
 
 sherifFas to the disposal of the goods (p), or the defendant against 
 whom a ca. sa. issues has become an insolvent or a bankrupt, 
 and the plaintiff has accepted the office of assignee (5), or indeed 
 in any case where the party seeking to compel a return has by 
 his conduct placed the sheriff in any difficulty as to the return (r), 
 the sheriff cannot be ruled to return the writ ; and if a rule be 
 obtained, the court on motion will discharge it (s). The new 
 sheriff cannot be compelled to return writs not regularly trans- 
 ferred to him by the old sheriff (i). 
 Noeitoppei. No estoppel as to the validity of a writ is created by ruling 
 the sheriff to return it, and the filing that return of record («). 
 
 We have seen that the proceeding to compel a return is in term 
 time by rule, and in vacation by a judge's order. The rule is a 
 side-bar rule, and may be obtained, like other side-bar rules, 
 at the master's office on any day of the term, even the last (m). 
 The order may be obtained in vacation at judge's chambers as a 
 matter of course, without any affidavit {x). 
 
 It is directed in ordinary cases to the sheriff or '^ late sheriff," 
 who should be so designated in rules addressed to him {y). 
 
 Where the writ is issued to a county palatine, the rule should 
 not be made on the chancellor, but on the sheriffof the county (2). 
 So where the writ is executed within a liberty by the bailiff, he 
 may be ruled to return the writ either in the first instance, or 
 after the sheriff has returned viandavi ballivo. In either court 
 the rule or order expires in four days after service in London 
 and Middlesex, and eight days after service in any other county 
 or city (a), 
 
 Formerly, in every county except London and Middlesex, the 
 rule must have been served on the sheriff or under-sheriff (6), 
 
 To whom rti 
 reded. 
 
 Service of. 
 
 (p) Gilbert v. Whalley, 2 C. M. & 
 R. 722. 
 
 (5) Hepworth v. Sanderson, 8 Bing. 
 19. 
 
 (r) See Hook v. Weatherby, 4 
 Wowl. 171. 
 
 (s) See De Moranda v. Dunkin, 4 
 T, R. 1 19 ; Hamilton v. Dalziel, 2 B. 
 & C. 952; 1 Chit. Rep. 614, n. ; 
 Hodges V. Jordan, 5 Dowl. 6. 
 
 (t) Thomas v. Newman, 2 Dowl. 
 N.S. 33. 
 
 (v) Jones V. Williams, 8 M. & W. 
 349; 9Dowl. 302, S. C. 
 
 (i») R.H.2 Will. 4, r. 96. 
 
 (x) Reg. Gen. H. T. 1 Vict. 
 iy) See R. v. Sheriffof Cornwall, 
 7 Dowl. 600. 
 
 (z) Chitty's Arch. 7th ed. 550. 
 
 (a) Reg. Gen. M. T. 7 W. 4. 
 This rule no doubt includes orders, 
 though it specifies only rules. See 
 Chitty's Archbold, 7th ed. 550. 
 
 (b) Rex V. Coles, Doug. 420. 
 Where the under-sheriff shut himself 
 up to avoid the service of the rule to 
 return the writ, the court directed that 
 leaving a copy at his house should be 
 good service; Richardson v. Baily, 
 Barnes, 35.
 
 OF THE RULE OR ORDER TO RETURN THE WRIT. 85 
 
 now, by the effect of 3 & 4 Will. 4, c, 42, s. 20, service on the ch^p. v. 
 sheriff's deputy in town will suffice. ^^^^' "'' 
 
 A copy of the rule (with the name of the officer by whom the 
 defendant was arrested indorsed on it) must be served personally 
 on the under-sheriff or deputy (c), and the original rule shown 
 at the same time(c?). At the time of serving the rule, the party 
 making the service should make a memorandum of the person 
 on whom he served it, that it may be inserted in the affidavit. 
 
 If the rule expire in term time, the sheriff should return the At what tinM! 
 writ on or before the day on which the rule expires, otherwise the mdeV'shnnid 
 plaintiff may move for an attachment on the day following (e) ; ^^,h"ami**'* 
 or if the rule expire on the last day of term, the plaintiff may ?or''ne"iect' or 
 move for an attachment at the rising of the court on that day, if '^^'''y* 
 the writ be not then returned (/). If the rule be obtained in 
 term, and expires in vacation, then by Reg. Gen. H. T. 2 Will. 4, 
 rule 11, " the sheriff' shall file the writ at the expiration of the 
 rule, or as soon after as the office shall be open." And by r. 12, 
 " the officer with whom it is filed shall indorse the day and hour 
 when it was filed." And by R.T. 7 Will. 4, Q. B., assimilating 
 the practice of the three courts, it was ordered that sheriffs may 
 file their returns to writs in vacation, and searches may be made 
 in vacation for writs and returns filed, without payment of the 
 extra fee hitherto charged. If he fail to return the writ in 
 vacation, on the expiration of the rule, an attachment may be 
 obtained on the first day of the next term (g). 
 
 In case of orders made in vacation, pursuant to 2 Will. 4, c. 39, 
 s. 15, it is provided by Reg. Gen. M. 3 Will, 4, r. 13, " that in 
 case a judge shall have made an order in vacation for the return 
 of any writ issued by authority of the said act, or any writ of 
 en. sa,,fi. fa. (including venditioni exponas (^h)), or elegit, on any 
 day in the vacation, and such order shall have been didy served, 
 but obedience shall not have been paid thereto, and the same shall 
 have been made a rule of court in the term then next following, 
 
 <c) Barnes, 30, 35 ; 3 & 4 Will. 4, (j^) Rex i-. Sheriff of Middlesex, I 
 
 c. 42, S.20. Marsh. 270; S. C. 5 Taunt. 647; 
 
 (d) Barnard i;. Berger, 1 N.R. 121 ; Smith i>. Blylh, 9 Price, 255. 
 
 Rex I'. Smithies. 3 T. U. 351. (h) Hughes v. Rees, 4 M. & W. 
 
 (e) R. M. 30 (ieo. 3, 4 J'. R. 496. 648 ; 7 Dowl. 56 ; Reg. i . Berles, 6 
 {/) Rex I'. Sheriff of Surrey, II Dowl. 97. 
 
 Ea.sl, 591.
 
 S6 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SFCT. III. 
 
 Motion for 
 attachment. 
 
 Affiiiavit 
 necessary to 
 ground au 
 attacbinent. 
 
 Setting aside 
 attacbment 
 on terms. 
 
 it shall not be necessary to serve such rule of court or to make 
 any fresh demand of performance thereon, but an attachment 
 shall issue forthwith for disobedience of such order, whether the 
 thing required by such order shall or shall not have been done 
 in the meantime." This rule, be it observed, is strictly confined 
 to the cases mentioned in it, namely, orders made and returnable 
 in vacation. It does not apply to rules of court (i), nor to orders, 
 unless they expire in vacation, and therefore, except in the case 
 of an order expiring in vacation, an attachment will not be 
 allowed to stand, if a return be made before the rule for an 
 attachment has been obtained (/c). But if the sheriff return the 
 writ after the rule for an attachment is obtained, though before 
 it is actually served^ yet the contempt is not thereby purged (/). 
 It is no waiver of an attachment for not returning a writ oifi.fa. 
 to direct the sheriff, after the order to return has expired, to 
 proceed with the execution {m). 
 
 Where the sheriff, on being ruled to return a writ, gave notice 
 to the plaintiff that the writ was lost, and that the defendant was 
 in custody on other process, the court set aside an attachment 
 obtained against the sheriff for not returning the writ, as irre- 
 gular under those circumstances (n). 
 
 The rule for an attachment, which is absolute in the first 
 instance (o), is moved for upon an affidavit, stating a personal 
 service of a copy of the rule, and that the original rule was at 
 the same time shown to the person served (p). 
 
 The attachment against a sheriff is directed to the coroner, or 
 if he be interested, then to elisors in the first instance {q). 
 
 When an attachment has been irregularly obtained, it will of 
 course be set aside. And even where the attachment is regular, 
 yet where the omission or delay of the sheriff has caused no loss 
 to the party who ruled him, the attachment will be set aside on 
 
 (t) As to rules or orders for relum- 
 ing a bailable writ of capias, which 
 expire in vacation, and to which cejii 
 cnrpus is returned, see Reg. Gen. H. 
 3 Will. 4, post, chap. 6. 
 
 (k) Williamson v. Harrison, 9 M. 
 & W. 225 ; 1 Dowl. N. S. 664, S. C. 
 
 (/) See Rex tJ.Sheriflr of Surrey, 11 
 East, 591. 
 
 (m) Howittt;. Rickaby, 9 M. & W. 
 .52; 1 Dowl. N. S. 389, S. C. 
 
 («) Rex II. Sheriff of Kent, 1 
 Marsh. 289. Gibbs, C. J., said, that 
 the plaintiff might have proceeded as 
 if the sheriff had returned cepi corpus, 
 and had actually brought in the body." 
 
 (o) 2Chitty's Archb. 1263. 
 
 (p) Barnard v. Berger, 1 N. R. 121 ; 
 Rex I'. Smithies, 3 T. R. 351. 
 
 (7) Reg. I'. Sheriff of Glamorgan- 
 shire, 1 Dowl, N. S. 308.
 
 RETURNS IN GENERAL. ^^ 
 
 payment of costs only (r). And the sheriff will not be compelled chap. v. 
 to make good moi 
 sion or delay (*). 
 
 to make good more than the loss actually occasioned by his omis 
 
 Section IV. 
 Returns in general {t). 
 
 Returns are nothing else but the sheriffs' answers, touching The reium. 
 that which they are commanded to do by the king's writ, and 
 are but to ascertain the court of the truth of the matter ; and 
 yet this is one of the most difficult things belonging to the office : 
 for, as Dalton says (m), if he be not circumspect in making his 
 returns, " he shall not only endanger himself to be amerced, or 
 sued for the same ; but also he shall indamage the parties, and 
 may hazard the cause or suit itself; for you shall find that judg- 
 ments have been often stayed for faults apparent in the sheriff's 
 return, yea, and that judgments have been often reversed by 
 writs of error for this cause." 
 
 The return is made by the under-sheriff in the name of the By whom 
 high sheriff, as the high sheriff is the person to make the return. 
 But if a writ be directed to the sheriff to be executed, and after- 
 wards a new sheriff is elected, the successor (if the writ be trans- 
 ferred to him) ought to return the writ with the old sheriff's return 
 thereon, and that he received the writ as above indorsed from his 
 predecessor (x). Now it is the practice for the late sheriff to 
 make his return (y). If the sheriff die during his year of office, 
 the under-sheriff, before the appointment of a new sheriff, should 
 make the return in the name of the deceased sheriff (z). Where 
 the sheriff has sent his mandate to the bailiff of a liberty to exe- 
 cute a writ, it is, strictly speaking, the duty of the bailiff to make 
 his return to the sheriff, who returns mandavi hallivo, with the 
 bailiff's return ; but it is now usual to rule the bailiff himself 
 
 (r) R. V. Sheriff of Essex, 8 Dovvl. (t) The returns to particular writs 
 
 5; Dorrien D. Sheridan, 6 Bing.N.C. will be discussed in the chapters re- 
 
 150 ; 8 Scott, 363, S. C. Jating to such writs respectively. 
 
 (s) Reg. V. SheriflF of Herts, Dod (u) P. 182. 
 
 D.Coleman, 9Dowl.916; see R. v. (a) 2 Roll. Abr.4.57 ; 1 Bulst.70; 
 
 Sheriff of Kent, Potter v. Simpson, 2 Gibbons d. Roberts, 1 Salk. 266; R. 
 
 M. & \V. 316. As to enforcing the r. Sheriff of Middlesex, 4 East, 604. 
 
 return of a fi.fa. out of the Couit (y) Per Lord Ellenborough, C. J., 
 
 of Chancery, see Evans i', Davies, 7 4 East, 606. 
 
 Beav. 81. (z) 3 Geo. 1, c. 15, s. 8.
 
 SECT. IV. 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. after a return o^ tiullum dedit responsam, in which case the bailiff 
 makes his return directly to the court (a). 
 
 The sheriff of a county palatine, having execution of a writ 
 out of one of the superior courts at Westminster, may either 
 return the writ to the chancellor, to be returned by him to the 
 superior court, or may at once return it to the superior court 
 himself(/'). 
 
 The forms of returns used at this day are the same as when 
 Dalton wrote, excepting that now they are in English instead of 
 in Latin. The return is made on the back (c) of the writ itself; 
 and if long, a schedule is annexed to the writ, and referred to in 
 an indorsement on the writ. Where the return is made on the 
 back of the writ it may be in this form, viz. " By virtue of this 
 writ, to me directed and delivered, I have \Jiere stale what has 
 been done under the writ,'] as by the said writ I am directed and 
 commanded ; A. B. esq., sheriff." The writ and return should 
 be filed in the office of the court, before or on the day on which 
 the rule or order to return the writ expires {d). And to ensure 
 punctuality, it is ordered (e) that "the officer with whom it is 
 filed shall indorse the day and hour when it was filed." For- 
 merly, it was held that any formal defects, as the want of words 
 of reference, vitiated a return, but the addition of modo et forma 
 quod breve exigit et reqidrit, cured any defects in the formal parts 
 of the return (/). Where the sheriff returned that he had 
 taken the body of C. D., without saying the within-named, it was 
 held that the return was bad, for C. D. might be a stranger {g) ; 
 but such an objection would not avail at this day (Ji). When 
 the return is long, as where the inquisition as taken by a jury is 
 set out, as on a return to an elegit, or a writ of inquiry, the return 
 is made in this form {i) : " The execution of this writ appears 
 in a certain schedule hereto annexed; A. B. esq., sheriff:" and 
 
 (a) Boothman v. Earl of Surrey, 2 13 ; Bro. Expos. 34 ; 1 Hen. 6, 6. 
 
 T. R. 5; T. Uaym.193. See Jackson (g) Mro. Amendment, 6\; 12 Hen. 
 
 D.Taylor, 5 Dowl. 140. 6, 19; 11 Hen. 7, 28. 
 
 (6) R. V. Sheriff of Lancaster, 7 (/;) And see Fitz. Retorn, 2, 44; 
 
 Dow). 765. Bro. lieUn-ne de Briefe, 28, 64 ; Com. 
 
 (c) This is the universal practice; Dig. Pleader. 
 
 but semble, a return on the face of the (i) It was determiner] that a return 
 
 writ would be good ; Dalton, 189. was vicious Vv-here it was stated thai 
 
 (rf) See an(e, p. 85. " the residue of this writ appears," &c. 
 
 (e) Reg. Gen. H. 2 W. 4, r. 12. instead of the " residue of (he eiecu- 
 
 (/) Filz. Retoni, 44; 2 Hen. 4, tw?i,"&c. Fhz Retorn,\4; 19Hen.6.
 
 RETURNS IN GENERAL. 
 
 89 
 
 a separate piece of parchment containing the inquisition is chap. v. 
 annexed to the writ. By stat. 12 Edvv. 2, c. 5, it was pro- . ^^"' '^' 
 vided, " That from thenceforth sheriffs and other baihffs that 
 receive the king's writs returnable in his court shall put their 
 names with the returns, so that the court may know of whom 
 they took such return, if need be. And if any sheriff or other 
 bailiff leave out his name in his return, he shall be grievously 
 amerced to the king's use." The sheriff ought to put his christian 
 name and surname to the return (A;) ; where there are two sheriffs, 
 they both ought to put their names ; and a return in the name 
 of one is not aided, for it is no return at all {I). It seems, how- 
 eve, that a return is not bad for the sheriff's omitting his name, 
 although he is liable to be amerced (m). Where a new sheriff 
 makes a return to a writ which has been executed by his prede- 
 cessor, the new sheriff returns the writ with his predecessor's 
 return ; in which case the old sheriff's subscription of '* A. B. 
 esq., late sheriff," is sufficient, for the statutes only require the 
 name, and the words " late sheriff" are surplusage (n) ; but the 
 new sheriff should return the writ as executed by his predecessor, 
 and not as executed by himself (o). Formerly, the want of the 
 sheriff's name to a venire facias was error, but this omission is 
 cured by the statute of jeofails, 21 Jac. 1, c. 13, s, 2; 4 & 5 
 Ann. c. 16, s. 1 ; and by IG & 17 Car. 2, s. 8, the want of the 
 sheriff's name being returned on the original writ is cured. 
 
 The return ought to be certain (p). But it seems that inas- The return 
 much as it is only to ascertain the court of the truth of the |^"„" ^ '"' 
 matter, it requireth not such precise certainty as is required in 
 pleading (ry). It must be certain in time, place, and all other 
 material circumstances (?•). Therefore, where the sheriff returns 
 that the defendant had no goods, or that the defendant non est 
 inventus prout ei constare poterit, the return is bad, for the sheriff 
 
 (fc) Dive V. Maningham, Plowd. see 1 Bulstr. 73; 3 Bulstr. 78; Vin. 
 
 63, a; Filz. Uetorn, 8; 8 Hen. 6, Abr. Rt^ocH, C; 1 Chii. Aich. 7thed. 
 
 27 ; Carth. 56 ; and see Ingoldsby 413. 
 
 V. Marlin, Strange, 316, where are- (n) Bethyll t;. Parry, Cro Car. 
 
 turn in the name of George instead of 189, 570. 
 
 Henry, Earl of Lichfield, was held (o) Rex v, Sheriflf of Middlesex, 4 
 
 well enough. East, 604. 
 
 (/) See U Rep. 4; Lamb «. Wise- (p) Ualt. 168. 
 
 man, Hob. 70 ; 39 Hen. 6, 41. (o) Ihid. 
 
 (m) Ualston i-. Thorp, Cro. Eliz. (r) Ihid. 
 767 ; I Leon. 139, tamen qiiccre. And 
 
 direct.
 
 90 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. should have said directly nidla bona or non est inventus (s). 
 
 '^^"' ^^' Upon a habere facias seisinam, the sheriff returned that the party 
 non 2>'>'0secutus est breve, this return is bad for uncertainty (f). 
 In a replevin, if the sheriff return that he could not deliver the 
 goods quia visum inde habere non jwtuil, it is bad, because he does 
 not say that he came to the place (?<). So to a.Ji.fa., a return 
 that the premises of the defendant are so barricadoed that the 
 sheriff cannot ascertain whether there are goods on which a levy 
 can be made or not, is bad, for he ought to give a direct answer 
 either that there are no goods which can be levied upon, or that 
 there are, and that he has levied {x). So a return that the she- 
 riff has caused to be seized divers goods of A. B., the value 
 whereof is to him unknown, which remain in his hands for want 
 of buyers, is irregular ; some value must be stated (y). But a 
 return stating, " I have caused to be made of the goods of A. B. 
 &c., 22/. 2s., out of which I have paid 11/. 5s. for rent due for 
 the premises wherein the said goods were taken," &c., was held 
 sufficient, on the ground that it must be reasonably intended to 
 refer to rent due to the landlord at the time of the seizure (s). 
 An argumentative return subjects the sheriff to an attachment, 
 unless the court give leave to amend (o). 
 The return The retum must answer the whole writ up to the time of 
 
 making the return ; therefore the return of a panel with nine or 
 less names than twelve is void (6). So a return upon a grand 
 cape, cefi manus, Sec, if it say nothing as to the summons of the 
 tenant, it is void (c). Scire facias against the heir and terre- 
 tenants, if the return say nothing as to the heir, it is void ((/). 
 A sheriff's return upon an extendi facias, that he has delivered 
 such land, without saying that there is no other land, is void (e). 
 Upon a petit cape, where the count was for a house and stable, 
 the return was cepi as to the house, but said nothing as to the 
 
 (s) Bro. Retonte de Briefe, pi. 8 ; P. C. 8. 
 
 Roll. Abr. Return (L), 1 ; 9 Hen. 6, (b) Roll. Abr. Return (M), 2 ; Bro. 
 
 657. Relorne de Briefe, 47, 48. 
 
 (t) Roll. Abr. Return (L), 2, 3, 4. (c) Roll. Abr. Return (M), 2. 
 
 (m) Ibid. (L), 5. (d) Eyres v. Taunton, Cro. Car. 
 
 (i) Munk V. Cass, 9 Dowl. 332. 295; but this was held to be cured 
 
 (y) Barton v. Gill, 12 M. & W. by appearance, Cro. Car. 313 ; Eyres 
 
 315. j;. Cowley, Sir W.Jones, 319. 
 
 (z) Reynolds V. Barford, 7 Man. & (e) 1 Brownl. 37; see Eldrin v. 
 
 Gr. 449 ; 8 Scott, N. R. 237, S. C. Hopkins, 7 Dowl. 146. 
 
 (a) See Master v. Cooper, 1 Price, 
 
 ttiun be a full 
 answer,
 
 RETURNS IN GENERAL. 
 
 91 
 
 stable; it was held, for this omission, void(/). So to aji.fa. chap. v. 
 returnable Oct. Mich., a return that the defendant had no goods ^^°^' '^' 
 at Mich, is bad, for perhaps the defendant had some before Oct. 
 Mich, (g) ; so, a return to a latitat, that the bailiff found the 
 defendant insane, and so ill that he could not be moved, is de- 
 fective, for not saying that he continued so until the return of 
 the writ (A) ; so where a venditioni exponas to sell goods levied 
 as to part of the debt, and a fieri facias as to the residue were 
 included in the same writ, the sheriffs made a return to the 
 venditioni exponas, without making any return as to the fi. fa,, it 
 was held bad for this omission (?). 
 
 The return ought to follow the usual precedents, — even a Must be in 
 slight departure in this respect is prohibited. Thus a return of "*"" °'^"'' 
 " not to be found" instead of " not found" (the usual form of 
 return non est inventus) has been holden bad (k). 
 
 The return of the sheriff must not falsify the writ or the The return 
 record (I), or be contrary to a former return of the sherifF(»i), falsify tiie 
 or of his predecessor (71) ; it must not be against the admittance Tr'a 'former' 
 of the party (0). These rules are so easy in application, that it '^*'"''"- 
 will not be necessary, excepting by reference to the cases upon 
 the subject, (which are not in themselves of much practical use 
 at this day,) to enter into further detail on the subject. 
 
 The insufficiency of a return is cured by appearance ; as Return, how 
 where the sheriff omits the names of the manucaptors on the 
 return to the distringas juratores, this is cured by the appearance 
 of the jurors ; so a return of scire feci per visum A. et B., instead 
 o( scire feci ^^er A. et B., is cured by appearance {p). And where 
 in debt for an escape it was objected that the sheriff's return on 
 the original writ was void, the objection was held immaterial ; 
 
 (/) Taste V. Haynes, Sir W. Jones, also Doyley d. White, Cro. Jac. 323 ; 
 
 357. S. C. 2 ]5ulstr. 80. Return to a writ 
 
 (g) Palmer v. Potter, Cro. Eliz. of pmip, "1 could not execute this writ, 
 
 512. the cause therein alleged for the exe- 
 
 (/i) Cavenagh v. Collett, 4 Bar. & cuiion thereof not being true," is bad 
 
 Aid. 279 ; Baker v. Davenport, 8 D. for this reason. Greenshaw v. Emer- 
 
 & R. 606; Peikins v. INleacher, 1 son, 1 Dowl. 337. 
 
 Dowl.iZl. (m) Roll. Abr. Keiurn (E) j Vin. 
 
 (i) Rex V. Sheriflf of Middlesex, 1 Abr, Return (E). 
 
 Marsh. 344. (n) Roll. Abr. Return (F) ; Vin. 
 
 \k) Rex «. Sheriff of Kent, 2 M. & Abr. Return (F). 
 
 W. 316 ; 5 Dowl. 451, S. C. (0) Roll. Abr. Return (G) ; Vin. 
 
 (0 Com. Dig. Retorn (E), 4; Abr. Return (G). 
 
 Moor V. Walts, Salk. 581 j S. C. 1 (p) Vin. Abr. Return (W). 
 Lord Raym.613; 12 Mod. 424; see
 
 SECT, IV. 
 
 12 EXECUTION AND RETl'RN OF WRITS. 
 
 CHAP. V, for after appearance and pleading, no advantage shall be taken 
 of such misprision nor of misawarding of mesne process (q). So 
 the insufficiency of a return in matters of form may, according 
 to a decision of Coleridge, J., be aided by lapse of time. In that 
 case a sheriff, on the 6th March, returned to af.fn. " goods in 
 hand for want of buyers," omitting to state their value ; and an 
 application on the 24th April to quash the return for this defect 
 was held to be too late (r). But this doctrine (which seems 
 novel as applied to acts of the sheriff) can only apply to returns 
 defective in point of form, for a void return cannot be "aided." 
 For instance, if a writ be directed to two sheriffs of a town cor- 
 porate, and one make the return without his fellow, this is bad, 
 and not aided as an insufficient return, for this is no return 
 at all (s). 
 
 Where the return is defective, it may be amended, even 
 although the return was made in the time of the former 
 sheriff(<) ; and even after the death of the sheriff, the court 
 will allow an amendment by the under-sheriff(M). Thus, where 
 the sheriff returned too small issues, and prayed to amend, it 
 was granted (ic). And where the sheriff by negligence omits 
 any of the jurors in the distringas which were in the venire 
 facias, or returns T. B. for A. B., or returns octo tales for decern 
 tales, these shall be amended by the sheriff upon his examination 
 in court (y). So where the sheriff returned that the defendant 
 was insane, and unable to be removed at the time that the 
 officer went to take him, the court allowed him to amend his 
 return, by stating that the defendant continued so until the 
 return day of the writ, on supporting it by an affidavit (s). 
 Where the sheriff returned to a writ of venditioni exponas, as to 
 goods taken in execution sufficient to satisfy part of the debt, 
 with a Jieri facias for the residue, that he had sold the goods 
 already taken, but made no return to the feri facias, the court, 
 on an affidavit by the under-sheriff's clerk that it was a mere 
 mistake, allowed the return to be amended (o). Where the 
 
 (q) Dalston v. Thorp, Cro. Eliz. Hen. 6, 47. 
 
 767. (a) Bro. Issues, 1. 
 
 (?•) Chambers D.Coleman, 9 Dowl. (!/) Dalton, 189. 
 
 588. (s) Cavenagh v. Colletl, 4 Bar. & 
 
 (s) Lambev. Wiseman, Hob. 70; Aid. 279. 
 
 see also 11 Rep. 4. (a) Rex v. Sheriff of Monmouth, 
 
 (0 Dalton, 189. 1 Marsh. 344. 
 
 (if) Filz. Aineudmcnt, 40, cit. 33
 
 RETURNS IN GENERAL. 93 
 
 SECT. 
 
 sheriff returned cepi corpus to a writ of mesne process, the chap. 
 court, after an attachment granted against the sheriff for not 
 bringing in the body, allowed the sheriff to amend his return 
 according to the fact, by stating that the defendant was in prison 
 in the custody of the sheriff (6). And the same where the sheriff 
 had returned " is not to be found" instead of " is not found (c)." 
 So where, to a writ of extent, the sheriff returned that he had 
 seized money into the hands of her Majesty, w-hich money was 
 in the hands of the accountant-general in bankruptcy, and the 
 Court of Review declined to order the accountant-general to pay 
 over the money to the sheriff (c?), the Court of Exchequer made 
 absolute a rule for discharging one which required the sheriff 
 to pay the money to the crown, and for amending the return (e). 
 But the sheriff ought to apply promptly for such indulgence, for 
 he will not be permitted to amend where he has been guilty of 
 laches. For instance, where the sheriff falsely returned to a 
 fieri facias •' goods in hand for want of buyers," and upon an 
 action for a false return being brought, obtained time to plead 
 on the usual terms, an application to amend the return to nulla 
 bona was held to be too late (/). Where the sheriff, under a 
 Ji.fa. and a writ of extent, seized not only the defendant's goods, 
 but also goods belonging to a stranger which were on the pre- 
 mises, and the sheriff returned to both writs, that he had seized 
 goods to the amount, but that they remained in his hands for 
 want of buyers ; the sheriff being obliged afterwards, by order 
 of the Court of Exchequer, to levy the amount of the extent 
 upon the defendant's goods, and not upon the goods of the 
 stranger, and having no longer goods of the defendant to satisfy 
 the fi. fa., applied to the court for leave to amend his return 
 to the latter writ ; the court however refused to allow the 
 amendment, saying, that as he had seized sufficient property 
 of the defendant under this writ, he must be accountable to the 
 plaintiff for it ; had he, as soon as he received the order of the 
 Court of Exchequer, stated the facts of the case to that court, 
 
 (6) Rexv.Sheriffof Wihs,8Moore, D. & D, 671. 
 518. (e) Rex v. Austin, 10 M. & W. 
 
 (c) Rex «;.Sheriff of Kent, in Potter 691 ; 2 Dowl. N. S. 468, S. C. 
 t>. Simpson, 2 M. & W. 316; 5 Uowl. (/) Wyliew. Pearson, 1 Dowl. N. 
 451. S. 807. 
 
 (d) See Ex parte Magnay,2 Mont.
 
 94 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. 
 
 SECT. 
 
 Amendment 
 on motion 
 of any person 
 interested. 
 
 Return, how 
 far conclu- 
 
 they would have relieved him from his embarrassment (^). Un- 
 necessary amendments will not be allowed; thus where the 
 sheriff returned to a capias, " I have taken the body of the de- 
 fendant, whose body remains in the prison of our lord the king, 
 under my custody," and the defendant after this return escaped 
 from the sheriff on bringing him up to London on a habeas cor- 
 pus in another suit, the sheriff, being ruled to bring in the body, 
 prayed leave to amend his return by stating that the defendant 
 had been in custody at the suit of other persons as well as the 
 plaintiff; but the court refused, as the return was substantially 
 correct (/<). 
 
 The amendment may be applied for by any person interested, 
 and even, it would seem, without making the sheriff a party to 
 the rule, if his conduct be not impeached. Where the plaintiff's 
 attorney became the defendant's attorney, and improperly pro- 
 cured a return to aji.fa. of a sum having been levied greater 
 than what was actually levied, an amendment was ordered (i). 
 
 Credence is given to the return of the sheriff: so much so, 
 that, as a general rule, there can be no averment against the 
 sheriff's return in the same action {k) ; although a party in any 
 other action, or in an action against the sheriff, may show that 
 such return is false (/), and in favorem vitce a party is not con- 
 cluded by the sheriff's return (m). But the sheriff's return of 
 a devastavit is not conclusive against an executor {n). And 
 where the sheriff returns that the defendant is dead, the plaintiff 
 may be received against this return, otherwise the suit would 
 abate (o). And although the party cannot aver against the 
 sheriflF's return, yet he may show that the person making the 
 return is not sheriff (p). Even in another action, the sheriffs 
 return is prima facie evidence of the facts contained in it ; as in 
 an action for maliciously suing out a/. /a. after a sufficient levy. 
 
 (g) 1 ChiUy's Archbold, 7th ed. 
 414 ; see Saunders i;. Bridges, 3 Bar. 
 & Aid. 95; but see Tomlinson v. 
 Shynn, 4 Moore, 505; 2 B. & B. 77, 
 S. C. 
 
 (7i) Ibbotson v. Tindal, 1 Bing. 
 156; 7 Moore, 552, S. C. 
 
 (i) Green v. Glassbrook, 2 Bing. 
 N. C. 143; 2 Scott, 261, S. C. 
 
 (/c) Dalton, 189, 190, 191 ; Roll. 
 
 Abr. Return (O). 
 
 (0 Dalton, 190; Vin. Abr. Re- 
 turn (O). 
 
 (m) Dalton, 191, 192. 
 
 (7i) Gibson v. Brooiie, Cro. Eliz. 
 859; Mounson v. Bourne, Sir W. 
 Jones, 418; S. C. Cro.Car.519, 528. 
 
 (o) Vin. Abr. Return (O), 22. 
 
 (p) Arundellf. Arundell, Yelv. 34.
 
 RETURNS IN GENERAL. 95 
 
 SECT. IV. 
 
 the sherifF having returned that he had forborne to sell under the chap. 
 first writ, and had sold under the second writ, at the instance 
 and with the consent of the then plaintiff, it was held that these 
 returns were jnimd facie evidence of such consent (q). The court 
 will not try the truth or falsehood of a return or affidavit, but 
 will leave parties injured by a false return to their remedy by 
 action (r). 
 
 The sherifF, generally speaking, is concluded by his own re- When ihe 
 
 1 ^^^rr^ ^Ti- 11 • 111 shetiflf and 
 
 turn ; and so the bailifi of a liberty, it would appear, is concluded bis officers 
 by the sheriff's return, although false, and his remedy is over by a remm. 
 against the sherifF(s). Where a sherifF having levied under a 
 Ji.fa., after notice that defendant had petitioned the Insolvent 
 Court, reiumeil. fieri feci, he was held bound by that return, and 
 compelled to pay over the amount to the plaintiff, though the 
 defendant was afterwards discharged under the insolvent act(^). 
 He ought to have applied to the court in the first instance, to 
 relieve him from his embarrassment. But where the sherifF re- 
 turned to 3ifi.fa. that he had levied goods, and a commission of 
 bankruptcy issued against the defendant on an act of bankruptcy 
 committed before the delivery of the writ to the sherifF, which 
 goods the sherifF gave up to the assignees, it was held that he 
 was not bound by his return, but might show those facts in an 
 action brought against him for not selling the goods under a 
 venditioni exponas (m). 
 
 The sheriff's officer, for the purposes of his own justification, 
 is not concluded by a false return of the sherifF (a:). 
 
 If the sherifF hath any valid excuse for not executing a writ. Excuses for 
 
 , 1 r. • 1 • 11 return. 
 
 he may state such matter of excuse in his return, as that the 
 defendant is privileged (?/) ; although it is quite clear that, ex- 
 cepting in the case of peers and members of parliament, he is 
 not bound to take notice of privilege {z). 
 
 Upon a capias ad respondendum, it is said that a return of tard^ Tardk. 
 
 (q) Gyfford v. VVoodgate, 11 East, v. Pearson, 1 Dowl. N. S. 807. 
 
 297. See Leonard v. Simpson, 2 («) Bridges v. Walford, 6 M. & 
 
 Bing. N. C. 176; 2 Scott. 835. Sel. 42; see also Clutterbuck D.Jones, 
 
 (r) Goubot V. De Crouy, 2 Dowl. 15 East, 78. 
 
 86 ; see Barber v. Mitchell, 2 Dowl. (x) Paiker v. Mosse, Cro. Eliz. 
 
 574; Anon. Lofft, 371. 181. 
 
 (s) Shaw V. Simpson, 1 Lord Raym. (y) See Bro. Retorne de Briefe, pi. 
 
 184. 46. 
 
 (t) Field V. Smith, 2 M. & W. (») See post, chap. 6, sec. 1. 
 388; 5Dowl. 735,S. C; seeWylie,
 
 96 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 
 SECT. IV. 
 
 Languidus. 
 
 Rescue. 
 Remedy 
 
 against 
 rescuers. 
 
 is bad, for the manifold mischiefs wliich might follow thereon ; 
 and it was formerly the practice to amerce the sheriff if he 
 returned tarcU («). But if a writ come so late that it cannot be 
 executed, there does not seem to be any sound reason why this 
 should not be a good return. 
 
 A return that a defendant is so sick that he cannot be removed 
 without danger of his life, or remains so sick in prison, is a good 
 return (6) ; but in such return it must be shown that the defendant 
 continued so ill until the return of the writ that he could not be 
 moved (c). A return that the sheriff has relinquished the 
 custody of the defendant because he could not be removed with- 
 out danger to his life, has been held bad {d). But the court 
 will, in such a case, enlarge the time for making the return (e). 
 If the sheriff discharge a defendant arrested on mesne process, 
 on giving a bail-bond, he will not be liable to an action for re- 
 turning languidus ; for that is only an excuse that he had not 
 the body : and he is only fineable by the court if he bring not 
 in the body, and the party shall not have any remedy against 
 him(/). 
 
 To a writ of mesne process, a return that the defendant was 
 rescued (g-) out of the custody of the sheriff, or that the defend- 
 ant overpowered the officer and rescued himself(/«), is good. 
 So a sheriff's return of the answer of the bailiff of a liberty, that 
 the defendant was rescued out of the bailiff's custody on mesne 
 process, is good (i) ; that is, that the defendant was rescued before 
 he was conveyed to •prison; for a return to a writ of mesne pro- 
 cess that the defendant was rescued out of prison, is bad (k). 
 
 (a) Fitz. Betorne, 37. 42; Com. 
 Dig. Betorne (D), 1. Such a return 
 was holden good on a capias, on an 
 appeal of murder. Bro. Betorne de 
 Brief e, 34; 8 Hen. 4. 21. 
 
 (h) Bro. Betorne de Briefe, 100, 
 102; Fitz. Betorne, 94, 105, 122; 
 Dait. 213. 
 
 (c) Cavenagh v. Collett, 4 Bar. & 
 Aid. 280; Perkins v. Meacher, 1 
 Dowl. 21. 
 
 (d) Baker i;. Davenport, 8 D. & R. 
 606. 
 
 (e) Jones v. Robinson, 11 M.& W. 
 758. 
 
 (/) Boles V. Lassels, Cro. Eliz. 
 852. 
 
 (g) May V. Proby, Cro. .Tac. 419 ; 
 
 S. C. 1 Roll. Rep. 388, 440 ; 3 Bulstr. 
 198; Hill u. Montague, 2 Lev. 144; 
 Lord Gorges v. Gore, 3 Lev. 46. 
 
 (h) Fermor v. Phillips, Holt's N. 
 P. C. 537 ; Rex i;. Sheriff of Middle- 
 sex, 1 Bar. & Aid. 190; Com. Dig. 
 Be^cne (D), 4. 
 
 (i) Lady Russel and Wood's case, 
 Cro. Eliz. 781. 
 
 (/c) Crompton v. Waid, Stra. 435. 
 See this distinction in Rlay v. Probie, 
 1 Roll. Rep. 440; S.C. Cro.Jac. 419 ; 
 O'Neill;. Marson, 5 Burr.2812; Roll. 
 Abr. Escape (D), 1,2, 3 : — unless the 
 prison was broken by the king's enemies, 
 although he is liable if broken by trai- 
 tors or rebels. Morse v. Shee, 1 Vent, 
 239; Southcole's case, 4 Rep. 84.
 
 RETURNS IN GENERAL. 97 
 
 SECT. 
 
 But to writs of execution, whether to a ca. sa. (/) or Ji. fa. (in), chap. 
 it is not a good return, that the defendant or his goods were 
 rescued from the sheriff; for in executing such writs, the sheriff 
 is ordered by the statute West. 2, to raise the ^wsse comitatus ; 
 and herein rests the distinction between rescue on mesne and 
 final process ; for in the former the sheriff may, although he is 
 not, as in executing final process he is, compelled to, raise the 
 posse comitatus (ji). When the sheriff may return a rescue, it is 
 necessary to state in the return a legal arrest; therefore a return 
 of rescue, which did not state that the defendant was arrested 
 within the county, was held bad (o). In some cases it has been 
 holden good to return that the defendant was rescued out of 
 the custody of the sheriff's bailiff (p); whereas in other cases 
 similar returns have been held to be bad, for not alleging that 
 the defendant was rescued out of the custody of the sheriff((j^). 
 But it would appear that a return either way is good ; for a 
 person in the custody of the sheriff's officer is in the custody of 
 the sheriff (r). But a return was held bad which stated that the 
 defendant was taken by the bailiffs, and hahuerant in custodid 
 med quousque such persons rescued him out of the custody of the 
 bailiffs (*). It appears necessary to state, in a return of rescue, 
 the time(^) and place (?<) where the rescue was made ; but it is not 
 necessary to state the day of the caption (a;). Although it seems 
 to have been deemed requisite to state the names of the rescuers, 
 yet it is conceived that a return would be sufficient without 
 stating their names ; for how are the sheriff and his officers to 
 
 (I) May V. Probie, Cro. Jac. 419 ; of rescue out of the custody of a she- 
 
 S. C. 1 Roll. Rep. 388, 440; 3 riff's bailiff and the bailiff of a liberty, 
 
 Bulstr. 198; eitiier on a ca. sa., or see Cro. Jac. 241, and 2 Keb. 217, 
 capias utlagatum after judgment, (r) Rex r. Sims, 1 Lev. 214; S.C. 
 
 Dyer, 241 a. Raym. 161. Per Holt, C. J., Salk. 
 
 (m) Rex V. Baldwin, Barnes, 430 ; 586 ; Penfold's case. Sir T. Jones, 
 
 Sliei;. Finch. 2 Roll. Rep. 57; S.C. 197; Rex v. Clapham, 2 Lev, 28. 
 
 Cro. Jac. 514; Sheriff of Surry v, Sfd r/rfe the report of Rest;. Sims, 2 
 
 Udderton, Holt, 145. Keb. 217. 
 
 (n) Noy. 40; 1 Stra. 432. (s) Salk. 586. 
 
 (o) Rex D. Sheriff of Middlesex, I (f) Bro. Retorne de Briej'e, 27; 
 
 Bar. & Aid, 190; see 2 Roll. Rep. Fitz. Cnron. 45, Attachment I; see 
 
 255. also 2 Bulstr. 137. 
 
 (p) Dyer, 241 a, n. ; Webb v. (n) Anon. Moore, 422, pi. 585; 
 
 Withers, 2 Roll. Rep. 255, Wolfreston's case, Yelv. 51 ; see also 
 
 (q) Dyer, 241 a. Pei- Buller, J., 2 Bulstr. 137, 
 2T. R. 156; I Sid. 332; 2 Roll. Kep, (x) Palm. 532, 
 
 263. For the distinction of a return
 
 98 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. know the names of persons composing a mob(v/)? The return 
 ^^^^' ^^' of a rescue is in the nature of a conviction, and the courts will 
 grant an attachment thereon in tlie first instance, the return of 
 a rescue not being traversable (a). For a rescue on mesne pro- 
 cess the plaintiff may bring an action against the rescuers (a); 
 but where the rescue is in execution, either the sheriff or plain- 
 tiff may bring the action (b) : in such action he must state and 
 prove the judgment, and that the taking was lcin'fid(c). 
 Mamiavi jf the bailiff of a liberty have the execution and return of the 
 
 ballivo. •' . . • 1 • 1 
 
 writ, by reason of the defendant or his goods bemg withm the 
 liberty, it is a good return for the sheriff to say that he com- 
 manded the bailiff to do execution of the writ ; if the bailiff of 
 the franchise has not made a return, the sheriff should return 
 accordingly (fZ) ; or if he have made a return, then the sheriff 
 should return mandavi ballivo, with the answer of the bailiff (c)- 
 But if a bailiff answers some matter which is insufficient as a 
 return, the sheriff should return nullum dedit responsum, for an 
 insufficient answer is no answer at all (/). If the sheriff return 
 mandavi ballivo where he ought to have entered the liberty, the 
 return is void, and the sheriff may be attached {g). It would 
 appear, that a return by the sheriff, that he had commanded the 
 bailiff of the liberty to whom the execution of the writ belonged, 
 is sufficient, without mentioning the name of the place whereof 
 he was bailiff (/i). A return to a writ of inquiry by the sheriff, 
 that he had commanded the bailiff of a liberty to execute it, is 
 bad, for it is the sheriff's duty to execute it(i). Where the 
 sheriff and bailifTof a franchise had both obtained time to return 
 a writ, and the sheriff afterwards returned it, the court refused 
 to compel the high bailiff to return the mandate (Jc). 
 
 (y) See Sir W. Jones, 201; Cro. (ft) Myric v. Coughlon, Cro. Car. 
 
 Jac. 419; 1 Bar. & Aid. 190. 109. 
 
 (s) Rex I'. Pember, Rep. temp. (c) Earl of Bristol v. Wilsmore, 2 
 
 Hard. 112; Faucet v. CaUen, T. Dowl. & Ry. 755; S. C. 1 B. & C. 
 
 Jones, 39; Anon. Salk. 586; 2 Vent. 514. 
 
 175 ; Rex v. Thomas Elkins, 4 Burr. (</) See Forms, Append. 
 
 2129; Rex v. Phillips, Barnes, 429. (e) Id. ibid. 
 
 Although it was formerly held to be (/) Roll. Abr. Ileturn (M), 2,3; 
 
 traversable, Dyer, 212 a; T. Jones, Bro. Retonie de Brief e, 4T. 
 
 39; the only remedy the rescuer has, (g) Fitz. Retorn, 5^. 
 
 if the return be false, is by action (h) Roll. Abr. /fean-« (N), 1. 
 
 against the shei iff. See Rex i;. Hors- (i) Virely d. Gumstone, Hob. 83 ; 
 
 ley, 3 T. R. 562, Roll. Abr. Relurn (N), 2. 
 
 (a) Kent v. Elwis, Cro. Jac. 241. (/c) Jackson v. Taylor, 5 Dowl. 
 
 140.
 
 RETURNS IN GENERAL. 99 
 
 An insufficient return is as no return, and therefore the courts chap. v. 
 will srant an attachment against the sheriff if he make an insuffi- ^^^^' ^' 
 
 cient return : or on a bailable capias, he may be ruled to bring in Liable to an 
 
 ■'_•'. " allachment, 
 
 the body (/) : indeed, if he return the insufficient answer of the if ihe remm 
 bailiff of a liberty, it would seem that he would be liable to an cient. 
 attachment (m). 
 
 The various forms of returns to different writs will be more Different 
 conveniently treated of hereafter, under the head of each par- [eiUJ-n"'^ 
 ticular writ. 
 
 not entitled 
 to fees. 
 
 Section V. 
 
 Of the Remuneration to Sheriffs for executing and returning 
 J frits. 
 
 By the common law, it was the duty of the sheriff to do exe- At the com- 
 cution of all the king's writs without any fee, remuneration, or "herit/wa^ * 
 reward; nor is the sheriff entitled at this day to any remunera- 
 tion for executing a writ, excepting by the provisions of par- 
 ticular statutes. Thus the sheriff, before 1 Vict. c. 55, was not 
 entitled to any fee for executing an attachment («), or a writ of 
 capias utlagatum against the goods of the defendant (o). In 
 affirmance of the common law, it was provided by the statute of 
 Westminster 1, c. 26, " That no sheriff shall take any reward 
 to do his office ; but shall be paid of that which they hold of the 
 king, and he that so doth shall yield twice as much, and be 
 punished at the king's pleasure" (p). 
 
 It was in the course of time, however, considered just and 
 politic to allow the sheriff a remuneration for his trouble, and 
 several statutes have from time to time been passed for the pur- 
 pose of carrying out this principle. The principal statutes now 
 in force, are ii8 Eliz. c. 4 (poundage) ; 3 Geo. 1, c. 15 (crown 
 debts, elegit, habere facias possessionem) ; 8 Geo. 1, c. 25 (extent 
 and liberates); 43 Geo. 3, c. 46, s. 5 (allowing plaintiff to levy 
 pioundage and expenses of execution in certain cases) ; and 7 Will. 4 
 & 1 Vict. c. 55 (fees payable to sheriffs upon the execution of 
 civil process). 
 
 (I) Rex V. Sheriff of Middlesex, 1 (o) Graham v. Grill, 2 M. & S. 
 
 Bar. & Aid. 190. 294. 
 
 (m) Roll. Abr. Return (M). 1,2. (p) See 2 Inst. 210, for Lord Coke's 
 
 (n) Rex V. Palmer, 2 East, 411. commentary on this statute. 
 
 II 2
 
 100 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. The general provisions of the statutes, with the decisions upon 
 ^^^'^' ^"' them, will first be stated, and then the provisions as to particular 
 writs. 
 
 By the statute 28th Elizabeth, c. 4(r/), it is enacted, *' That 
 it shall not be lawful to or for any sheriff, under-sheriff, bailiff 
 of franchises (>), or liberties, nor for any of their or either of 
 their officers, ministers, servants, bailiffs, or deputies, nor for any 
 of them, by reason or colour of their or either of their office or 
 offices, to have, receive, or take of any person or persons what- 
 soever, directly or indirectly, for the serving and executing of 
 any extent or execution upon the body (.v), lands (<), goods or 
 chattels of any person or persons whatsoever, more or other 
 consideration or recompense than in this present act is and shall 
 be limited and appointed, which shall be lawful to be had, re- 
 ceived, and taken ; that is to say, twelve pence of and for every 
 twenty shillings, where the sum exceedeth not one hundred 
 pounds ; and sixpence of and for every twenty shillings, being 
 over and above the said sum of one hundred pounds, that he or 
 they shall so levy or extend, and deliver in execution, or take the 
 body in execution for, by virtue and force of any such extent or 
 execution whatsoever ; upon pain and penalty that all and every 
 sheriff, under-sheriff, bailiff of franchises and liberties, their and 
 every of their ministers, servants, officers, bailiffs, or deputies, 
 which at any time shall directly or indirectly do the contrary, 
 shall lose and forfeit to the party grieved his treble damages, 
 and shall forfeit the sum of forty pounds for every time that he, 
 they, or any of them shall do the contrary ; the one moiety 
 thereof to be to our sovereign lady the queen, her heirs and suc- 
 cessors, and the other moiety thereof to the party or parties that 
 will sue for the same by any plaint, action, suit, bill, or informa- 
 tion, wherein no essoign, wager of law, or protection shall be 
 allowed." 
 
 (q) This statute has been impro- (r) Where a writ is executed within 
 
 periy cited as the 29th Eliz. See a liberty by the bailiff of that liberty, 
 
 Rumsey v. 'luffneli, 2 Bing. 255; he, and not the sheriff, is entitled to 
 
 Savage, q. t. i;. Smith, 2 Bla. Rep. the fees under this statute. See Latch, 
 
 1101, where the statement of this act 52 ; Salk. 331. 
 
 as of the 29th Eliz. was held fatal. (s) See now as to ca. sa. 5 & 6 Vict. 
 
 See also Brock well d. Lock, Salk. 331. c. 98, s. 31, post. 
 
 It has not been repealed by 1 Vict. (t) See now as to /lafcereyacias and 
 
 C.55; Davies v. Gritfiths, 4 M. & W. elegit, 3 Geo. 1, c. 15. s. 16; Nash v. 
 
 377 ; 7 Dowl. 204, S. C. ; Pilkington Allen, 1 Dav. & M. 16. 
 V. Cooke, 16 M & W. 615.
 
 FEES AND POUNDAGE. 
 
 101 
 
 Provided always, that this act or any thing therein contained, chap. v. 
 
 extends. 
 
 shall not extend to any fees to be taken or had for any execution L_L. 
 
 within any city or town corporate." This proviso has been con- J"^*iJ5'"j,°po. 
 strued to mean, that if the sheriff, bailiff of a franchise, or other "'e. 
 officer, execute any execution on a judgment given in the courts 
 at Westminster, within a city or town corporate, he is not to be 
 deprived of the fee given by the statute; but if the bailiff or 
 other officer execute process on a judgment given in a court of 
 a corporation or liberty, he is within the proviso, and not enti- 
 tled to fees within the statute (it). 
 
 The amount of the fee to be taken is not expressed in very Amount to be 
 clear words in the statute 28 Eliz. c. 4 ; but it has been decided ^ emz. c. 4. 
 in a variety of cases, that the sheriff is entitled under that sta- 
 tute to one shilling in the pound for the first 100/., and sixpence 
 in the pound for every pound above 100/. (x). 
 
 This statute, 28 Eliz. c. 4, regulates the fees to be taken on To what writs 
 
 1 - 1 / N . p the statute 
 
 2iji.fa. {ij), but does not apply to an attachment (2), a writ 01 as emz. c. 4, 
 
 capias ullagatum {a), a writ of habere facias possessionem ox sei- 
 
 sinam (b), the seizure of land under a writ of elegit (c), a writ of 
 
 levari facias for a crovvn debt((/) ; a writ of ca. sa. since 1 May, 
 
 1843 (e); or money taken on a bailable capias, and paid into 
 
 court by the sheriff, under 13 Geo. 3, c. 4 G, s. 2, or 7 & 8 Geo. 4, 
 
 c. 71 (/) ; or an execution upon a judgment of non pros. (g). 
 
 The statute 1 Vict, c, 55, intituled An Act for better regulating 
 the Fees payable to Sheriffs upon the Execution of Civil Process, 
 after reciting that ' it is expedient to amend the laws relating to 
 ' the fees payable to sheriffs, under-sheriffs, deputy sheriffs, she- 
 
 (u) Brockwell v. Lock, Salk. 331 ; 2 Sid. 155 ; 1 Vent. 351. 
 S. C. 5 Mod. 97 ; Jesson, Sheriflof (c) Nash i;. Allen, 1 Dav.& M. 16. 
 
 Coventry, v. Wesley, cited in Cro. (rf) Stephens d. Rothweli, 6 ftloore. 
 
 Car. 287; Latch, 18, 52; Poph. 338 ; S. C. 3 Bred & Bing. 143 : see 
 
 173 ; Palm. 399 ; sed vide The Sheriff Lake v. Turner, 4 Burr. 1981, where 
 
 of Gloucestei's case, Cro. Eliz 264. the suit was for the benefit of the 
 
 (.1 ) Lyster v. Bromley, Cro. Car crown. 
 286; S.C. Sir W. Jones, 307. (e) 5 6t 6 Vict. c,98, s. 31. Quicre, 
 
 {y) Tyson v. Paske, 2 Lord Raym. whetherthisenactmentapplies to writs 
 
 1212; S. C. Salk. 333; Jayson v. tested but not executed before 1 May, 
 
 Hash, Salk. 209. As to the amount, 1843. 
 
 see Price t;. Mollis, 1 IM. 6c Sel. 105; if) Stewart v. Bracebridge, 2 B. 
 
 Nash V Allen, 1 Dav. & IM. 16. & .\ld. 770 ; 1 Chit. R. 529, S. C; 
 
 (:) Rex V. Palmer, 2 East, 411 ; Haines y. Nairn, 2 Dowl. 43; Hume 
 
 Rex V. SherilVof Devon, 3 Dowl. 10, v, Bruce, 6 Moore, 124. 
 
 (a) Grahamr.Grill.2M.&S.294. (g) Anon., 2 Chit. Rep. 353. 
 
 (h) Peacock v. Harris, Salk, 331 ;
 
 102 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. ' riffs' agents, bailiffs, and others the officers or ministers of 
 ^^^'^' ^'' ' sheriffs in England and Wales, and to give the Courts of Record 
 ' at Westminster Hall a due control over such fees ; and also 
 ' to provide a summary remedy against such officers and others 
 ' as shall extort or receive other or greater fees than by law 
 ' they shall be entitled to : and whereas divers enactments 
 ' touching the said officers, contained in certain ancient statutes, 
 
 * have become inconvenient, and ought to be repealed ; be it 
 
 * therefore enacted by the Queen's most excellent majesty, by 
 ' and with the advice and consent of the lords spiritual and tem- 
 ' poral, and commons, in this present parliament assembled, and 
 
 * by the authority of the same, that so much of an act passed in 
 Part of 42 ' the forty-second year of his late majesty King Edward the 
 
 ' Third, intituled Estreats shall be shewed to the party indebted, 
 
 ' and that which is paid shall be totted : no sheriff ^'C. shall con- 
 
 ' tinue in Office above a Year, as relates to the time during which 
 
 ' under-sheriffs and sheriffs' clerks may abide in their respective 
 
 the act 1 Hen. ' officcs ; and also an act passed in the first year of the reign of 
 
 ' his late majesty King Henry the Fifth, intituled Sheriffs' Bai- 
 
 ' Iffs shall not be in the same Office in Three Years after : Sheriffs' 
 
 ' Officers shall not be Attornies : and also so much of an act 
 
 and pan of ' passed in the twenty-third year of the reign of his late majesty 
 
 eg/'' * King Henry the Sixth, intituled No Sheriff shall let to farm his 
 
 ' County or any Bailiwick : the Sheriffs' and Bailiffs' Fees and 
 
 * Duties in many Cases, as relates to the fees to be taken by she- 
 
 * riffs, under-sheriffs, sheriffs' clerks, and other officers and 
 repealed. ' ministers of sheriffs, be and the same are hereby repealed.' 
 Fees to be ~' ' ^^^ ^e it enacted, that from and after the passing of this 
 u'x'illlg'iffi^er * ^^^ ^'- shall be lawful for sheriffs, or their officers concerned in 
 Westminster ' *^^ execution of process directed to sheriffs, to demand, take, 
 
 ' and receive such fees, and no more, as shall from time to time 
 
 * be allowed by any officer of the several courts of law at West- 
 
 * minster charged with the duty of taxing costs in such courts, 
 ' under the sanction and authority of the judges of the said 
 ' courts respectively.' 
 
 Fees to the 5. ' And be it enacted, that from and after the passing of this 
 
 Lancashire ' ^^^> ^^^ sheriffs of Lancashire and Durham, and their officers, 
 and Durham. < gj^j^u ^^^^^ .^^^j ^^ entitled to the like fees, and no more, upon 
 
 * process issuing out of the Court of Common Pleas at Lancaster 
 
 * and out of the Court of Pleas at Durham respectively, as from
 
 FEES AND POUNDAGE. 103 
 
 ' time to time shall be allowed under the authority of this act to chap. v. 
 ' sheriffs upon process issuing from the superior courts at West- faEcx. v .^ 
 ' minster ; and that the said Court of Common Pleas at Lan- 
 
 * caster and Court of Pleas at Durham respectively, or any judge 
 
 * thereof respectively, being also judge of one of the superior 
 ' courts at Westminster, shall have the same powers in every 
 ' particular, with respect to offences against this act upon process 
 
 * issuing out of the said Court of Common Pleas at Lancaster 
 
 * and Court of Pleas at Durham respectively, as are hereinbefore 
 
 * given to the courts at Westminster respectively in respect of 
 ' process issuing from those courts.' 
 
 The following is the list of fees prepared pursuant to the 2nd THbie of fees, 
 section of the act, and sanctioned by the judges. 
 
 TABLE OF FEES. 
 
 A Table of Fees to he taken by the Sher/Jfs, Under- Sheriffs, 
 Defuty- Sheriffs, Sherffs' Agents, BaUffs, and others the Officers 
 or Ministers of Sheriffs in England and Wales, pursuant to the 
 Statute of 1 Vict. c. 55. 
 
 For every Warrant which shall be granted by the Sheriff to his On warrants 
 
 /^/v> tiT • T-» r ct ' l/^r. 7 aiiilarrcsts. 
 
 Officers upon any Writ or Process : — iSee post, 108, as to the 
 charge where there are several defendants/] 
 
 £ s. d. 
 
 In London and Middlesex 2 6 
 
 And on crown (//) and outlawry process, an addi- 
 tional 2 6 
 
 In all othor counties, where the most distant part of 
 
 the county shall not exceed 100 miles from London 5 
 
 Not exceeding 200 miles G 
 
 Exceeding 200 miles 7 
 
 For an arrest in London 10 G 
 
 In Middlesex, not exceeding a mile from the General 
 
 Post Office 10 G 
 
 Not exceeding seven miles from same place 1 1 
 
 (/() But by Reg. Gen. IM. 10 Virt. of fees as relates to process at the suit 
 (16 Nov. 1846) so much of lliis table of the crown is annulled.
 
 104 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. A *• "• 
 
 ^^^^' ^' In other counties, not exceeding a mile from officer's 
 
 residence 10 6 
 
 Not exceeding seven miles 1 1 
 
 Exceeding seven miles 1 H 6 
 
 For conveying the defendant to gaol from the place 
 
 of arrest (i) per mile 10 
 
 For an undertaking to give a bail bond 10 6 
 
 For a Bail Bond. 
 
 If the debt shall not exceed ^50 10 6 
 
 Ditto £100 1 1 
 
 Ditto i:i50 1 11 6 
 
 Ditto £300 2 2 
 
 Ditto £400 3 3 
 
 Ditto £500 4 4 
 
 If it shall exceed £500 5 5 
 
 For receiving money under the statute upon deposit 
 for arrest, and paying the same into court, if in 
 
 London or Middlesex 6 8 
 
 If in any other county 10 
 
 For Filing the Bail Bond. 
 
 If the arrest be made in London or Middlesex .... 2 
 
 If in any other county 4 
 
 Assignment of Bail or other Bond. 
 
 If in London or Middlesex 5 
 
 If in any other county, including postage 7 6 
 
 Return to ha- For the rctum to any w^rit of habeas corpus, if one 
 
 beas corpus. . ^ i r> n 
 
 action 12 
 
 And for each action after the first 2 6 
 
 For taking For the bailiff to conduct prisoner to gaol .. per c?iem 10 
 
 prisoner o ^^^ travelling expenses per mile 10 
 
 Search for For searching offices for detainers 10 
 
 detainers. Bailiff's messenger for that purpose 2 6 
 
 Forexecution To the bailiffs, for executing warrants on extent, ca- 
 
 writs. pias utlagatum, levari facias, fieri facias, ca. sa., ne 
 
 exeat, attachment, elegit, writ of possession, for- 
 
 (i) See for bailiff's fee, post.
 
 105 
 
 CHAP. 
 SECT. 
 
 Man in 
 
 possession. 
 
 Sale by 
 auction. 
 
 FEES AND POUNDAGE. 
 
 £ s. d. 
 
 feited recognizance, process from pipe office, and 
 
 other like matters, for each, if the distance from 
 
 the sheriff's office or the bailiff's residence do not 
 
 exceed five miles 1 1 
 
 If beyond that distance per mile 6 
 
 On distringas, in London 5 
 
 In Middlesex, not exceeding five miles from General 
 
 Post Office 5 
 
 Exceeding five miles 10 
 
 In other counties, not exceeding five miles from 
 
 officer's residence 5 
 
 Exceeding five miles 10 
 
 For each man left in possession {k\ when absolutely 
 
 necessary — 
 
 If boarded per diem 3 G 
 
 If not boarded per diem 5 
 
 For every sale by auction (/), notwithstanding the 
 
 defendant should become bankrupt or insolvent, 
 
 where the property sold does not produce more 
 
 than 300^., 5 per cent. — 480/., 4 per cent. — 500/., 
 
 3 per cent. — and where it exceeds 500/., 2\ per 
 
 cent. 
 
 For the certificate of sale to save auction duty 2 6 
 
 Bond of indemnity, besides stamps 1 10 Indemnity, 
 
 Certificate of execution having issued for record .... 5 
 
 On Writs of Trial and Inquiry. 
 
 For a deputation 1 1 
 
 On lodging writ for entering cause and warrant for 
 summoning jury, which fee shall be forfeited iij 
 case of countermand of trial 4 
 
 On Trial or Inquisition. 
 Sheriff for presiding 1 1 
 
 (k) The term " possession-money" Canterbury, 11 M. & W. 619. So, 
 does not include the expense of the if the execution creditor pays the ex- 
 keep of cattle seized by the sheriff. penses of a sale by appraisement, he 
 Gaskell v. Sefton, 14 M. & \V. 802. cannot set it off against the sheriff's 
 
 (/) No fee for appraisement on any poundage. Marshall v. Hicks, 16 
 
 other kind of sale i Phillips u. Viscount Law J,, Q. B. 134. 
 
 Certificate of 
 execution.
 
 lOG EXECUTION AND RETURN OF WRITS. 
 
 CHAP. 
 
 SECT. 
 
 Replevin. 
 
 £ s. d. 
 Bailiff for summoning jury, and attendance in court 4 
 
 And if held at the office of the under-sheriff — 
 For hire of room, if actually paid, not exceeding. .. . 10 
 For travelling expenses of under-sheriff from his office 
 
 to place where trial or inquisition held. . . .per mile 10 
 
 To the bailiff, from his residence per mile G 
 
 In all cases in which it shall appear to the 
 master that a saving of expense has accrued 
 to the parties by reason of a writ of trial 
 having been executed by deputation, the 
 fee for such deputation shall be allowed. 
 On writs of extent, elegit, capias utlagatum, and 
 others of the like nature ; for summoning the jury, 
 
 use of room, presiding at the inquisition, &:c 2 
 
 Jury , 
 
 For travelling expenses of under-sheriff from his 
 
 office to the place of inquisition per mile 
 
 For drawing and ingrossing the inquisition, per folio 
 For a summons for the attendance of a witness 
 
 \^As to the apportionment of the travelling expenses of the 
 under-sheriff and bailiff', see post, 108.] 
 
 In Replevin. 
 [Bo»id, see post, 108.] 
 
 Precept to bailiff 2 6 
 
 Notice for service on defendant 2 6 
 
 Broker, where the sum demanded and due shall ex- 
 ceed 201., and shall not exceed 50/., for appraise- 
 ment and affidavit of value 10 6 
 
 Where it shall exceed 50/ 1 1 
 
 And his travelling expenses from his residence to the 
 
 place where the goods are per mile G 
 
 Bailiff for summoning parties and delivering goods 
 
 to tenant 1 1 
 
 And his travelling expenses same as broker. 
 For the warrant, record, and return of a re. fa. lo., 
 
 accedas ad curiam, pone, or writ of false judgment IG 6 
 
 2 
 
 
 
 2 
 
 
 
 1 
 
 
 
 1 
 
 G 
 
 5 
 

 
 FEES AND POUNDAGE. 
 
 £ S. d. 
 
 For writ retorno babendo 4 6 
 
 For each summons on a writ of sci. fa., or for the 
 
 service of writ of capias where no arrest 5 
 
 And mileage j^er mile 10 
 
 For recording each demand or proclamation under 
 
 writs of outlawry 2 
 
 For bailiff for making each demand or proclamation 
 
 on writs of outlawry in London and Middlesex ..026 
 
 In other counties 5 
 
 And travelling expenses, if the distance shall exceed 
 
 five miles, then for every mile beyond that distance 6 
 For any supersedeas, writ of error, order, liberate, or 
 
 discharge to any writ or process, or for the release 
 
 of any defendant in custody (unless in the prison 
 
 of the county), or of goods taken in execution. .. . 4 6 
 For the return of any writ or process, and filing same, 
 
 exclusive of the fee paid on filing 1 
 
 Jury Process {rri). 
 
 For return to common venire 3 6 
 
 The like to special 5 
 
 The like on distringas or habeas corpus for common 
 
 jury 12 
 
 The like for special jury 14 
 
 The like with a view 1 
 
 The like to a traverse venire 14 6 
 
 For attendance naming special jury 2 2 
 
 Twenty-four warrants to summon special jury 1 4 
 
 For bailiff for summoning each special juror 2 
 
 Sheriff attending in court 1 1 
 
 For attending a view, the fees as allowed by 
 
 rule of court, Trinity Term, 7 Geo. 4, 1826. 
 
 For any duty not herein provided for, such 
 
 sum as one of the masters of the Courts of 
 
 King's Bench or Exchequer, or one of the 
 
 (m) No greater fees, it seems, when expenses of summoning knights in a 
 jurors reside at a distance, Lane v. real action, ibid. 
 Sewell, 1 Chit. R. 175. Nor extra 
 
 107 
 
 CHAP. V. 
 SECT. V. 
 
 Summons on 
 sci. fa. 
 
 Proclamalion 
 of oullawry. 
 
 Supersedeas, 
 discharge, 
 &c. of person 
 or goods. 
 
 Return.
 
 108 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. £ s. d. 
 
 ^^^'^' ^' Prothonotaries of the Court of Common 
 
 Pleas, may upon special application allow. 
 
 \_Signed by all the Judges.] 
 
 SHERIFFS' FEES— Addenda. 
 Bond in Replevin. 
 Instead of the allowance of the fees upon the same 
 scale as the bail-bond, the fee of one pound one 
 shilling only is allowed, whatever be the amount, 
 if above 20l 1 1 
 
 Fees on Writs of Trial and Inquisition. 
 
 The travelling expenses of the under-sheriff from 
 his office, and of the bailiff from his residence, to 
 the place where the trial or inquisition is held, are 
 to be apportioned rateably to the parties, if more 
 than one trial or inquisition be held at the same 
 time and place. 
 
 [^Signed by all the Judges.] 
 
 Where there are several defendants in a writ of capias, and 
 warrants are issued thereon by the under-sheriff against more 
 than one defendant, no more shall be charged in any case for 
 each warrant, after the first, than two shillings and sixpence. 
 
 \_Signed by eight of the Judges.'] 
 
 Amount of The above statute of 1 Vict. c. 55, has not repealed any sta- 
 
 recoveTabie.*^' tutes except ihose expressly mentioned in the recital (w). 
 
 Before the passing of 1 Vict. c. 55, there was much confusion 
 as to the remuneration of sheriffs. The Court of Common Pleas 
 seem to have been of opinion, that where the sheriff did any 
 thing beyond his official duty, as in allowing time for dividing 
 the property seized into lots, for the benefit of selling them to 
 more advantage, at the instance of the defendant, the officer was 
 entitled to some remuneration beyond poundage (o). But the 
 
 (n) Davies v. Griffiths, 4 M. & W. (o) Stephens d. Rolhwell, 6 Moore, 
 
 377; 7 Dowl.204,S. C. ; Filkington 338; S. C. 3 Brod. & Bing. 143, 
 V. Cook, 16 M. & W. 615. Sed vide 3 Campb. 374.
 
 FEES AND POUNDAGE. 109 
 
 sheriff could not then charge the expenses of seUing the goods chap. v. 
 
 hy auction, because he was bound to sell the goods himself: yet — — 1— 
 
 if the auction were at the request of the plaintiff or defendant, 
 the party so requesting must have paid the expenses of it (p). 
 And it was held that the sheriff could not legally retain out of 
 the sum levied on a fi.fa. the expenses of keeping possession 
 of the goods pending an injunction out of Chancery, and for so 
 doing he was adjudged to be guilty of extortion {q). At the 
 present day, these and similar questions may be answered by 
 reference to the table of fees prepared pursuant to 1 Vict. c. 55 ; 
 the general effect of which act is to restrict the sheriff to the 
 fees mentioned in that table and poundage (when allowed by 
 other statutes), no matter how great may be the expenses in- 
 curred in the performance of his duty (r). There is, however, a 
 provision in the table of fees, that for any duty not therein pro- 
 vided for the sheriff is to be allowed such sum as one of the 
 Masters of the several courts of common law may upon special 
 application allow. It may be doubted how far this sweeping 
 clause is consistent with the 1 Vict. c. 55, s. 2, which requires 
 the sanction and authority of the judges. It has been laid down 
 in a recent case, that the sheriff, on making a levy under an exe- 
 cution, is entitled, under this table of fees, to a per-centage on 
 the whole proceeds of the sale, including a year's rent paid by 
 him to the landlord ; but not to an allowance of such extra 
 expenses, incurred by him respecting the levy, as are not in- 
 cluded in the table of fees (s). 
 
 It is said in an Anonymous case(<), " a sheriff shall not be PonmUge 
 entitled to poundage if judgment irregular." This dictum, how- wh'er^J'j'udg-' 
 ever, in its generality, seems equally opposed to justice and to ^(^"ou^ure* 
 later authorities. In a case where the sheriff had levied the ^"'*''" 
 amount and his poundage under 2i fi.fa., and the writ was after- 
 wards set aside for irregularity, and the plaintiff compelled to 
 refund the whole amount to the defendant, it was held that the 
 
 (p) Per Buller, J., Woodgate v. 413 ; 9 Dowl. 221,S.C. See Buckle 
 
 Knatchbul), 2 T. R. 157 ; Bilke v. v. Bewes, 3 B. & C. 688 ; 5 D. & R. 
 
 Havelock, 3 Campb. 374 ; Stephens 595. S. C. ; Stephens v. Rothwell, 6 
 
 V. Rothwell, 6 Moore, 338 ; S. C. 3 Moore, 338 ; 3 Brod, & B. 143, S. C. 
 
 Bred. & Bing. 143. (s) Davies v. Edmonds, 12 M. & 
 
 (9) Buckle V. Bewes, 5 Dowl. & \V. 31. 
 
 Ry. 495 ; S. C. 3 Bar. & Cres. 688. (e) Lofft, 253. 
 
 (r) Slater t>. Hames, 7 M. & W.
 
 110 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. sheriff was entitled to retain his poundage {u). And in a later 
 — ^^^Il^^ case, where the sheriff, having levied under afi.fa., on the 
 judgment and execution being set aside for irregularity, with the 
 plaintiff's assent, restored the amount of the levy to the defend- 
 ant, it was held that he might sue the plaintiff for his pound- 
 age (x). The principle of these decisions will probably be held 
 applicable to the fees which the sheriff is entitled to receive 
 under 1 Vict. c. 55. Cases have occurred in practice, in which 
 the plaintiff and defendant, on a compromise, have, with a view 
 to defraud the sheriff of his fees and poundage, procured the 
 judgment and execution to be set aside for irregularity by 
 consent. It is hardly necessary to observe, that in such a case, 
 independently of any summary remedy which the Court might 
 apply, the sheriff's right of action against the plaintiff would 
 not be affected. 
 Poundage On a writ oi ji.fa., besides the expenses allowed under the 
 
 and expenses g(.i^gj^^,]g ^f fees pursuaut to 1 Vict. c. 55 (ante, p. 103), the 
 sheriff is also entitled to poundage under the 28 Eliz. c. 4 (ante, 
 100). In order to entitle the sheriff to poundage under that 
 statute, there must be an actual levy; and the sheriff is not 
 entitled to poundage if the money is paid to him without any 
 levy {y). Consequently a defendant, against whom s. fi. fa. is 
 issued, may stop its execution by tendering to the sheriff the 
 amount and expenses without poundage: and if the sheriff pro- 
 ceeds to levy for it after such tender, the Court will compel 
 him to refund {z). Nor is the sheriff entitled to poundage on 
 more than the sum he actually receives under the execution, 
 though the amount claimed or seized be greater (a). It is even 
 stated (6), that " it seems, on inquiry into the practice, the 
 sheriff cannot have poundage until the goods are sold." This 
 proposition, however, if correct, does not apply to a case where 
 after the seizure of the goods the parties enter into a compro- 
 mise before the sheriff sells them. In such case the sheriff 
 
 (it) IBullen V. Ansley, 6 Esp. 111. v. Ilutcliinsou, 2 Dowl. &: L. 43. 
 See Earle v. Plummer, Salk. 332. (a) Rex v. Robinson. 2 C. M. & 
 
 (x) Rawstorne v. Wilkinson, 4 M. R. 334 ; 4 Dowl. 447, S. C. 
 & Sel. 256. (b) Anon. Lofft, 433 (H. T. 14 
 
 (y) Graham v. Grill, 2 M. & Sel. Geo. 3, K. B.) See per Lord Elien- 
 
 296. borough, Bilke i'. Havelock, 3 Campb. 
 
 (2) Colls u. Coates, 11 Ad. & El. 374. 
 826 j 3 Per. & D. 51 i, S. C. 3 Brine
 
 FEES AND POUNDAGE. 
 
 Ill 
 
 CHAP. V. 
 SECT. V. 
 
 has been held to be entitled to his poundage (d). It is observ- 
 able that the words of the statute are " levy or extend a7id de- 
 liver in execution." Therefore the sherifT is not entitled to 
 poundage on a sum of money paid over to a landlord under 
 8 Anne, c. 14 (e). An action is not maintainable on an implied 
 promise to pay a sheriff the expenses of seizing and keeping 
 possession under aji.fa., which was ultimately abandoned on 
 account of the refusal of an indemnity, even after the claim has 
 been recognized by payment of money on account (/). Under 
 Q.Ji.fa. against a defendant, the poundage and expenses may be 
 levied, even, it seems, though there be no indorsement to that 
 effect (g). As to levying the amount of poundage and expenses, 
 see further, page 114. 
 
 With respect to poundage and fees on a ca. sa., it is enacted Poundage 
 by 5 & G Vict. c. 98, s, 31, " that after the 1st day of March, of ca.sa. 
 1843 (Ji), no poundage shall be payable to sheriffs and others for 
 taking the body of any person in execution, but there shall be 
 payable to the sheriff or other person having the return of writs, 
 upon every such execution against the body, such fees only as 
 shall be allowed to be taken by sheriffs or other officers con- 
 cerned in the execution of process under the sanction and au- 
 thority of the judges of the courts of common law at West- 
 minster, pursuant to 1 Vict. c. 55." The law applicable to a 
 ca. sa. previous to that day will be found in the note(«). The 
 
 (d) Alchin I). Wells, 5 T. R. 470. 
 
 (e) Goie V. Goflon, Str. 653. 
 (/) Bilke V. Havelock, 3 Campb. 
 
 374; Lane v. Seweli, I Chit, 175. 
 See iviaybery v. Mansfield, 16 Law J. 
 Q. B. 102. 
 
 (g) Curtis V. IMayne, 2 Dowl. N. 
 S. 37. 
 
 (ft) It seems the statute does not 
 apply where the party was taken on 
 the cii. sa. before that day. iiunbury 
 1'. Matthews, 1 Car. & Kir. 380. 
 
 (i) On a ca.sa. the sheriff, before 
 5 & 6 Vict. c. 98, s. 31, was entitled 
 to the poundage allowed by the statute 
 28 Eiiz. ; but where the ca. sa. issued 
 only for a part of the sum recovered, 
 it was provided by statute 3 Geo. 1, 
 c. 15, s. 17, that the sheriff' should 
 not demand or t.ike poundage for any 
 greater sum than the debt bond fide 
 due to the plainiift'; which sum the 
 
 plaintiff is obliged to mark on the writ 
 before it is delivered to the sheriff. 
 And by the same statute it is declared 
 to be extortion to offend against that 
 act, and subjects the paity to the pe- 
 nalty of double the sum extorted, and 
 treble damages. And if a mistake was 
 made in the indorsement, and the sum 
 was reduced by judge's oider to the 
 correct amount, tiie sheriff" was held 
 entitled to poundage on the reduced 
 amount only. Evans v. IManero, 7 
 M. & W. 463 ; 9 Dowl. 256, S. C. 
 The sheriff was entitled to poundage 
 on a ca. sa., although the defendant 
 went to prison without paying the 
 debt ; Lake i'. Turner, 4 Burr. 1981 ; 
 or although the defendant was already 
 in custody of the sheriff when the ca. 
 su. was delivered to him ; Tayler i;. 
 Ward, Tidd's Prac. 1084, 8th ed.
 
 112 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. plaintiff' cannot levy under a ca. sa. the expenses of the execu- 
 sECT^jf^ tion above the sum recovered by the judgment, unless by ex- 
 press authority from the defendant (^). It seems that there is 
 no remedy for extra costs incurred in consequence of the defend- 
 ant's being too ill to be removed (^). 
 Tnd'etpenses '^^^ sheriff is not entitled to poundage on process at the suit 
 writ's?"^" of the crown under the provisions of the 28 Eliz. ; his claim for 
 poundage on such writs is regulated by the statute 3 Geo. 1, 
 c. 15, s. 13, 14, which will be treated of in the chapter on Ex- 
 tents (to). For other expenses, see the table of fees, p. 105, 
 
 Poandage [t has been stated, that the sheriff" was not entitled to pound- 
 
 ana e!cpen5es ^ 
 
 on an elegit, age under the 28 Eliz. for executing a habere facias seisinam, or 
 
 habere fa- ° . . . 
 
 cias posses- possessionem, or an elegit against land. By the statute 3 Geo. 1, 
 
 sionem or ..„„ . 
 
 seisinam. c. 15, s. 16, for ascertammg fees for executing writs of elegit 
 and of habere facias seisinam or possessionem, it is enacted, that 
 " no sheriff", bailiff" of liberty, &c. shall take, demand, or receive, 
 by colour of their office, ^for executing a writ of habere facias 
 seisinam or possessionem, any greater fee than 1*. for every 
 pound of the yearly value of any manor, messuage, lands, tene- 
 ments, and hereditaments, whereof possession or seisin shall be 
 by them or any of them given, where the whole exceedeth not 
 the yearly value of 100/., and the sum of 6c?. only for every 1/. 
 per annum over and above the yearly value of lOOl." Although 
 this section of the statute professes to have been passed for the 
 purpose of ascertaining the fees upon an elegit, yet there is no 
 mention whatsoever made of elegits in the enacting part of the 
 statute. Nevertheless the sheriff", for executing an elegit, is not 
 entitled to poundage upon the whole debt, but only on the value 
 of the lands extended (?»). Where goods are taken under an 
 elegit, it seems the sheriff" is entitled to poundage on their value, 
 just as he would under z.fi.fa. 
 Who to pay In general the party ^at whose suit the writ is issued must 
 expenses! ''" bear the expenses of execution, and has no remedy against his 
 debtor, except by express agreement, as usual in a judge's order, 
 warrant of attorney or cognovit. 
 
 (/c) See Hayley v. Racket, 5 M.& 416. See Price v. Hollis, 1 M. & S. 
 
 W. 620. 105; Tyson i;. Paske, 2 Ld. Raym. 
 
 (0 Jones t)." Robinson, 11 M. & 1212; S.C. Salk. 333. That the 
 
 W. 758. sheriff is entitled to poundage on the 
 
 (m) Post, chap. xvi. debt, see Peacock i;, Harris, Salk. 331. 
 
 (n) Nash v. Allen, 1 Dav. & M. But that case was cited without avail 
 
 16; 1 Chitty's Archbold, 7th edit. in Nash v. Alien.
 
 FEES AND POUNDAGE. 113 
 
 But the 43 Geo. 3, c. 46, s. 5, enacts, that " in every action cHip. v. 
 in which the plaintiff or plaintiffs shall be entitled to levy under ^^^^' ^' 
 
 an execution against the goods of any defendant, such plaintiff or •is Geo. 3, 
 plaintiffs may also levy the poundage fees and expenses of the 
 execution, over and above the sum recovered by the judgment." 
 It is observable that this act extends only to executions against 
 defendants, and does not enable a defendant to levy poundage, 
 &c. on an execution against the plaintiff for the costs of the 
 action (0). Nor does it apply to crown process (p). Also that 
 it applies to executions against goods, and not to executions 
 against the person {q) or land. The words " expenses of the 
 execution," do not mean only the costs of the writ (r) ; they 
 include such expenses as the sheriff, &c. is put to in keeping 
 possession of the goods, selling. Sec. which the plaintiff would 
 have to pay to the sheriff if there was no such statute. But 
 they do not include expenses dehors the execution, such as the 
 costs of an interpleader rule(«). And where a judge's order 
 directed execution to issue for debt and costs, sheriff's pound- 
 age, officer's fees, " and all other incidental expenses," it was 
 held that the sheriff could not levy, nor was the defendant liable 
 to pay, as " incidental expenses," the costs of rules to return the 
 writ (<). The plaintiff, when he includes in the writ a sum to 
 be levied for expenses, must take care to levy only such sum as 
 will afterwards be allowed on taxation ; for if he levy more, 
 the court will order him to restore the excess with costs (m). • 
 It seems the sheriff may, in cases within 43 Geo, 3, c. 46, levy 
 for his fees under 1 Vict. c. 55, though there be no indorsement 
 to that effect on the writ, and he need not particularize their 
 respective amounts in his return {x). 
 
 A question may perhaps arise whether executions on rules of Rule of 
 court are within the above statute ; and whether, inasmuch as '^""'^ ' 
 1 & 2 Vict. c. 110, s. 18, gives them to some extent the effect 
 of judgments, the person to whom the money is payable thereby 
 
 (o) Baker 1;. Lyder, 7 Taunt. 179; (s) Hammond v. Nairn, 1 Dowl. 
 
 Anon. 2 Chit. 353. See Woodgate N. S. 351 ; 9 M. & W. 221, S. C. 
 
 V. Knatchbuli, 2 T. R. 158. (t) Hutchinsoni;. Humbert, 1 Dowl. 
 
 (p) See R, V. Miles, 7 T. R. 367; N. S. 78; 8 M. & W. 638, S.C, 
 
 West, 238. (») Benwell v. Oakley, 2 Taunt. 
 
 (9) Hayley D. Racket, 5 M. & W. 174. 
 
 620. (,r) Curtis v. Mavne, 2 Dowl. N. 
 
 (r) Per Best, C. J., Rumsey v. S. 37. 
 Tuffnell, 1 Bing. 256.
 
 114 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. may not be considered as a plaintiff" for the purpose of the sta- 
 sEci. V. ^^^^^ ^^2 Geo. 3, c. 46). But the point lias not been decided. 
 
 Poundage and The sheriff" may retain his poundage out of the sum levied, 
 
 expenses, •' in 
 
 how reco- Or he mav maintain an action of debt on the statute for his 
 
 verefl by the . 
 
 sheriff. poundage against the person who issued the writ (?/) ; nor has 
 
 the statute of the 43 Geo. 3, c. 4G, s. 5, taken away the sheriff''s 
 right of action against the plaintiff" for his poundage on a Ji. 
 fa. (s). So it seems the sheriff" may sue for the expenses allowed 
 him by 1 Vict. c. 55 (a). Or in cases within 43 Geo. 3, c. 46, 
 s. 5, he may levy for them even although there be no indorse- 
 ment to that eff"ect on the writ (6). A question may arise, when 
 the parties compromise after the sheriff" has seized and before 
 he has sold under a. ji. fa., whether the sheriff", on notice from 
 the plaintiff", is bound to withdraw, and trust to his action against 
 the plaintiff" for his poundage, or whether he may, notwithstand- 
 ing the compromise, proceed to sell enough to cover his pound- 
 age ? In favour of his right to sell, the course pursued in 
 Alchin V. Wells (c), and the observations of Wightman, J,, in 
 Curtis V. Mayne (d), may be referi'ed to. On the other hand, 
 it must not be forgotten that 43 Geo. 3, c. 46, s. 5, which alone 
 empowers the sheriff" to levy for poundage and expenses, was 
 passed in favour of the plaintiff, not the sheriff"; and therefore, 
 if the ordinary rule applies, the benefit of it may be waived by 
 the plaintiff". A strong case may be put, where the defendant in 
 the compromise has settled for the poundage eo nomine; and the 
 case of an elegit, where the sheriff" can only deliver the goods 
 in execution and not sell, furnishes an argument. The sheriff" 
 cannot refuse to execute the writ until his fees are paid (e) ; 
 
 (y) Lister v. Bromley, Sir W. bailiffs, should he brought in the name 
 
 Jones, 307 ; S. C. Cro. Car. 286 ; of the sheriff or of the bailiff. Such 
 
 Tyson v. Paske, 2 Lord Rayra. 1212; actions have been brought in the name 
 
 S. C. Salk. 333. of the bailiff, but the point is not de- 
 
 (z) Rawstorne t). Wilkinson, 4 i\L cided. See Foster u. Blakelock, 3 B. 
 
 & Sel. 256. & Aid. 47. 
 
 (a) The general rule is, that for a (h) Curtis v. Mayne, 2 Dowl. N. 
 
 pecuniaiy duty created by statute, S. 37. 
 
 debt is maintainable. See Com. Dig. (c)5T. R.470. This point passed 
 Debt, A. 1; Tilson v. Warwick Gas unnoticed there. 
 Light Company, 4 B. & C. 962; ((/) 2 Dowl. N. S. 37. 
 Garden?; General Cemetery Company, (e) Hescot's case, 1 Salk. 330; 
 5 Bing. N. C. 253. It has been Anon. 1 Salk. 331. See also Hop- 
 doubted whether actions for the fees man v. Barber, Stra. 814; White v. 
 allowed by the table (ante, 101) to Haugh, ib. 1262.
 
 FEES AND POUNDAGE. 115 
 
 and it seems a bond(/), or a promise (g), to pay the sheriff his chap, v, 
 fees that he will be entitled to for executing a writ, is void. ^^^'^- '^- 
 
 The attorney of the execution plaintiff is not liable to the 
 sheriff for the fees due on the execution of a ca. sa. or other 
 writ (Ji). 
 
 The taking more fees than is by law allowed is extortion, Extorcion. 
 which is punishable at the common law by indictment (i). But 
 indictments can only be maintained against the person actually 
 guilty of the offence, and when the ofRcer of the sheriff takes 
 more than he is entitled to for poundage, the sheriff is liable 
 to an action (^•), but not to an indictment for the offence of his 
 officer (Z). 
 
 The person from whom the money has been extorted may 
 apply summarily to the Court for restitution (m), or bring an 
 action for money had and received, or resort to the remedies fur- 
 nished by the following statutes, where they are respectively 
 applicable. 
 
 By the statute 28 Eliz. c. 4, {ante, 100), sheriffs, &:c. offending 28 Eiiz c.4. 
 against that act, are subject to pay treble damages to the party 
 aggrieved, and a penalty of 40/., one half to the crown and the 
 other half to the party suing for the same. The treble damages 
 on this statute are calculated as three times the amount of the 
 damages found by the jury (?i); the damages are in general the 
 sum overcharged (o). An action cannot be maintained on the 
 28th Eliz. for extortion against a sheriff, for taking more fees 
 than he is entitled to in executing a levari facias at the suit of 
 the crown ; for the sheriff is not entitled to poundage on such a 
 writ under that statute{j))- Nor, it would seem, will an action 
 lie for taking excessive fees, other than poundage, upon the con- 
 
 if) Raym. 62; Hutt. 52. {k) Woodgate v. Knatchbull, 2 
 
 (^) Bridget. Cage, Cfo.Jac. 103; T. R. 148. 
 see Bilke v. Havelock, 3 Camp. 374. (/) Per Gould, J., in Saunderson 
 
 (/i) Maybery v. Mansfield, 16 Law v. Baker, 3 Wils. 316. 
 J. Q. B. 102 ; Dew v. Parsons, 2 B. {m) See Phillips v. Viscount Can- 
 
 & Aid. 562, semb. contra. See Bilke terbury, 11 M. & W. 619. 
 V. Havelock, 3 Campb. 374. (n") Woodgate v. Knatchbull, 2 T. 
 
 (i) Smith V. Rlall, 2 Rolle's Rep. R. 159 ; Buckle w.Bewes, 6 Dowl.& 
 
 263 ; S. C. Palm. 318 ; " extortio est R. 1 ; 4 B. & C. 154, S. C. 
 crimen quando quis colore orficii ex- (o) Woodgate v. Knatchbull, uhi 
 
 torquet quod non est debitum, vel sup. See Buckle v. Bewes, 5 D. & R. 
 
 quod supra debiium, vel ante tempus 495, 3 B. & C. 688, S. C. 
 quod est debitum," See 1 Inst. 368 ; (p) Stephens v. Rolhwell, 6 Moore, 
 
 2 Inst. 206; 10 Rep. 102; 2 Salk. 338 ; 3 Bro. & B. 143, S. C. 
 680. 
 
 12
 
 IIG 
 
 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. 
 SECT. V. 
 
 32 Geo. 2, C. 
 28, s. 12. 
 
 1 Vict. c. 55, 
 s. 3. 
 
 To prevent 
 officers takinf 
 fees not 
 allowed or 
 greater lees 
 than are 
 allowed. 
 
 and other 
 persons frora 
 taking any 
 fees. 
 
 joint operation of the statute 28 Eliz. c. 4, and 1 Vict. c. 55 (q). 
 In order to raise that question, the declaration ought to aver 
 that a table of fees has been prepared and sanctioned by 
 the judges under 1 Vict. c. 55, s. 2, and specify in respect of 
 what items the defendant has taken more than that table allows (r) . 
 It seems that, in a declaration for extortion, the declaration ought 
 to state the amount actually taken, and that it is not sufficient 
 to allege that the sheriff took " £ more than by law is 
 
 allowed («)," 
 
 The statute 32 Geo. 2, c. 28, s. 12, giving a penalty of 50/. 
 in certain cases of improper conduct of sheriffs in the execution 
 of mesne process, and which has been supposed to extend to 
 extortion of greater fees than are allowed by other statutes upon 
 the execution of mesne process, will be found in the chapter 
 on Bailable Capias {i). 
 
 The third section of 1 Vict. c. 55, enacts, ' that any sheriff, 
 ' officer or minister acting in the execution of process directed 
 ' to any sheriff or sheriffs, or engaged or concerned therein, who 
 
 * shall extort, demand, take, accept or receive from any person 
 ' or persons any fee or fees, gratuity, or reward not allowed as 
 ' aforesaid, or greater in amount than as allowed as aforesaid, 
 
 * such sheriff, or other his officer or minister, upon complaint 
 ' thereof made against him to any of the said courts, and on 
 
 * proof being made thereof upon oath, either by the examination 
 ' of witnesses viva voce, or on affidavits, or on interrogatories, to 
 ' the satisfaction of the court to which the said complaint shall be 
 ' made, that such sheriff, officer, or minister, as the case may be, 
 ' hath offended therein as aforesaid, then and in such case every 
 ' such sheriff, officer, or minister, as the case may be, shall be 
 ' adjudged guilty of a contempt of such court, and punished by 
 ' such court accordingly ; and if any person, not being such 
 ' officer or minister as aforesaid, shall assume or pretend to act 
 
 * as such, and shall extort, demand, take, accept, or receive any 
 ' fee or fees, gratuity, or reward under colour or pretext of 
 ' such office, he shall, on like complaint and proof, be in that 
 ' respect dealt with by the court in like manner.' 
 
 ((/) Usher v. Walters, 4 Q. B. 553 ; 
 3 G. & D. 594, S. C. ; Pilkington v. 
 Cooke, 16 M. tk W. 617. 
 
 (r) Ibid. 
 
 (s) Ashby V. Harris, 2 M. ^ V/ 
 673; see Pilkington v. Cooke, ubi sup. 
 (() Post, p. 125.
 
 FEES AND POUNDAGE. 117 
 
 Sect. 4. ' And be it enacted, that in all cases of summary com- chap. v. 
 « plaints as aforesaid the court before which such complaint shall '^^^■'^' '^- 
 ' be preferred may at its discretion award the costs of or occasioned Court may 
 ' by such complaint to be paid by either party to the other ; 
 ' such costs to be taxed by the master of such court : 
 
 * Provided always, that no such complaint shall be entertained Complaint 
 * unless made before the last day of term then next following the Tss,' when 
 ' act whereof complaint ^s made.' '" "" '""''"■ 
 
 The provisions of the 28th Eliz. c. 4, are not repealed by this 
 statute (ji). 
 
 Section VI. 
 Actions against the Sheriff in general. 
 
 The actions that the sheriff is subject to in discharge of his Actions 
 duty in the execution and return of writs may be classed under sher?ffl 
 two heads : 1st, Actions against the sheriff by the party suino- 
 out the writ ; 2dly, Those at the suit of the person whose per- 
 son or goods the sheriff has taken. We have already seen tliat 
 civiliter the sheriff is answerable for the acts of his bailiff, but 
 not criminaliter ; and therefore for all acts of irregularity, mis- 
 feasance, or non-feasance, in executing writs, committed by the 
 officer, the sheriff may be sued (a). 
 
 1. As regards the actions to which the sheriff is subject at the At the suit of 
 suit of the person suing out the process. If the sheriff make a lufng^ourthe 
 false return, he will be liable to an action ; as if he return ''"'" 
 nulla bona to a writ of Jieri facias, when he had an opportunity 
 of making a levy (6) ; or if he neglects or refuses to execute 
 any writ when he has the opportunity and is required so to 
 do (c). Thus where a writ of hah.fac. poss. had been delivered 
 to the sheriff, but the writ nevertheless was not executed by 
 reason of the delay of the sheriff, and the judgment was after- 
 wards set aside on payment of costs by the landlord, who was 
 let in to defend by a judge's order, the sheriff was held liable 
 to an action at the suit of the lessor of the plaintiff, for recovery 
 of the expenses he had incurred in trying to have the writ exe- 
 
 (j() Pilkington y. Cooke, 16 IM. & (c) Ikown v. Jarvis, 1 RI. & W. 
 
 W. 617. 704; Kandell v. VVheble, 10 A. & 
 
 (a) See ante, p. 44. E. 719 ; Mason v. Paynler, 1 Q. B. 
 
 (6) See ;ws«, the chapter on fi./u. 974.
 
 118 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. cute(\{d). So also, an action will lie against the sheriff for dis- 
 _?^5ZlZiL charging a person arrested on a bailable writ of capias without 
 taking sufficient bail, if he have him not at the return of the 
 writ(e). 
 
 But an action will not lie for omitting to execute a writ of 
 mesne process before the eight days, unless some actual damage 
 is alleged and proved (/). The sheriff is liable to an action 
 for a neglect of duty in omitting to arrest a debtor on a ca. sa. 
 without proof of actual damage ; but if the jury negative actual 
 damage, the plaintiff is only entitled to a verdict with nominal 
 damages (g-). So in an action against the sheriff for negligence 
 in executing a Ji. fa., the plaintiff cannot recover more than 
 nominal damages, unless he prove actual damage ; and it was 
 doubted whether without such proof even nominal damages could 
 be recovered (A). 
 
 If the sheriff discharge a defendant on taking a bail-bond 
 on an arrest on mesne process, and return non est inventus, he 
 would be liable to an action for a false return (i). But the 
 sheriff is not liable to an action at the suit of the plaintiff for 
 not returning the writ (k). If a person in the sheriff's custody 
 in execution be rescued, or escape out of custody, or be dis- 
 charged by the sheriff, even on payment to him of the debt and 
 costs, the sheriff is liable to an action for an escape (I). Or if the 
 sheriff, on request, refuse to assign to the plaintiff a bail-bond 
 taken by him on an arrest on mesne process, the sheriff is liable 
 to an action ; but for such a refusal it seems that there is no 
 other remedy (m). For money levied by the sheriff on aji. fa. 
 an action will lie by the plaintiff against the sheriff (n). It has 
 been doubted whether an action will lie against the sheriff at the 
 suit of a party issuing an attachment out of the Court of Chan- 
 cery for arresting the defendant while privileged, so that the 
 plaintiff was obliged to issue a fresh attachment (o). 
 
 (d) Mason v. Paynter, 1 Q. B. (i) See post, chap. 6. 
 974. (k) 2 Inst. 452. 
 
 (e) Brunskill v. Robertson, 9 A. & (I) See post, chap, on Ca. sa. 
 
 E. 840. (m) Stamper v. Milbourne, 7 T. R. 
 
 (/) Williams v. Mostyn, 4 M. & 122. And see Mendez u. Bridges, 5 
 
 W. 145; Brown v. Jarvis, supra; Taunt. 325. 
 
 Randle v. Wheble, supra. (n) See post, chapter on Fi. fa. 
 
 (g) Clifton V. Hooper, 6 Q. B. 468. (o) See Lloyd v. Wood, 5 Ad. &. E. 
 
 (^> Bates V. Wingfield, 4 Q. B. 228, ^er Patteson, J. 
 580, 'n.; 2 Nev. & M. 831, S. C.
 
 ACTIONS AGAINST THE SHERIFF IN GENERAL. 119 
 
 2. If the defendant be styled by a wrong name in a writ of chap. v. 
 mesne process, either against his goods or his person, the sheriff 
 
 is liable to an action of trespass for executing such writ (m), ^' '•'^ '"'' °f 
 
 ^ ° \ >" the person 
 
 unless the name be idem sonans (n), or unless the defendant be whose goods, 
 
 1 11 1 1 \ &c. aretaken. 
 
 known by one name as well as the other (o), or has assumed 
 in the particular instance the name by which he is sued(p). 
 And where the defendant is styled by a wrong name in a writ 
 of mesne process, in a plea of justification it must be alleged 
 that the defendant was known by one name as well as the 
 other (<jr). And the 3 & 4 Will. 4, c. 42, s. 11, which takes 
 away the right of a defendant to plead in abatement for a mis- 
 nomer, does not in any way affect the law in this respect (r). 
 
 Although the sheriff will be justified in arresting a defend- 
 ant wrongly named in the writ where he is as well known 
 by the wrong name, still he is not bound to do so ; and even 
 after actual arrest under such circumstances, he is not, it seems, 
 liable to all the consequences which attach to an arrest under 
 ordinary circumstances, unless he has 7wtice that the defendant 
 was as well known by one name as the other (s). 
 
 If on a writ against A. the sheriff arrest B,, although B. says 
 that he is A., yet it has been said that the sheriff is liable to an 
 action for false imprisonment (l). But it may be doubted, not- 
 withstanding such dicta, whether any action would lie against a 
 sheriff for a mistake induced by the misrepresentation of the 
 complainant (u). 
 
 For executing a writ of final process against a defendant 
 wrongly named in the writ no action will lie against the sheriff, 
 provided that the person upon whose body or goods the writ is 
 
 (m) Colej).Hindson,6T. R.234; (p) Price v. Harwood, 3 Camp. 
 
 Shadgett v. Clipson, 8 East, 328 ; 108 ; Morgan v. Bridges, 1 Bar. & 
 
 Price V. Harwood, 3 Camp. 108 ; Aid. 647 ; Crawford v. Satchwell, 2 
 
 Scandover o. VV'arne, 2 Camp. 270. Stra. 1218. 
 
 See Thurbane e< (i/. Hard. 323; Rex (<j") See the cases cited supra ; also 
 
 V. Sheriffof Surrey. 1 Marsh. 75; Rex Fisher i-. Magnay, 1 Dowl. & L. 45, 
 
 V. Sheriff of -Middlesex, 2 Chit. Rep. per Tindal, C. J. 
 
 357. It is otherwise in writs of exe- (r) Finch i'. Cocken, 3 Dowl. 678 ; 
 
 cution, if the judgment were against 2 C. M. 6c R. 196, S. C. 
 
 thedefendantby awrongname; Craw- (s) Brunskiil v. Robertson, 9 A.& 
 
 ford V. Satchwell, Sira. 1218. E. 840; Morgan v. Bridges, 1 B. & 
 
 (n) See Abithol v. Beniditto, 2 Aid. 647. 
 
 Taunt. 401 . (t) Moor, 457 ; Hard. 323. 
 
 («') See the cases in the two last (u) See per Lord Ellenborough, 
 
 notes; also Fisher v. Magnay, 1 C. J.. 1 B.& Aid. 650; Smiths Lead- 
 
 Dowl. & Low. 40. ing Cases, 44, n. ; ante, p. 76.
 
 120 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. executed be in fact the person against whom the judgment was 
 ^^^^' ^^' entered up and the writ issued ; and it is quite immaterial 
 whether he be generally known as well by one name as another. 
 Indeed the sheriff would be bound to execute such a writ (x). 
 
 If the ofllccr on a writ against A. take the goods of B., the" 
 sheriff is liable to an action of trespass or trover for the act of 
 his officer (?/). Even if there are two persons of the same name 
 and address, and a writ issues against one of them, and the sheriff 
 through inadvertence or mistake executes the writ against the 
 wrong person, he is liable to an action. For instance, where a 
 father and son both bore the name of "Joseph Jarmain/' and 
 judgment was recovered and a Ji. fa. issued against the son by 
 that name, not adding " the younger," the sheriff was held 
 liable in trespass for levying on the goods of the father (z). 
 In such cases, if the goods have been sold and the price of them 
 received by the sheriff, the owner may waive the tort and bring 
 an action for money had and received against the sheriff to 
 recover the proceeds (a) ; but in such an action the plaintiflF 
 will be entitled to the amount only which has been actually 
 realized by the sale ; whereas in an action ex delicto he might 
 recover the value of the goods seized without reference to the 
 price for which they were sold, and also compensation for the 
 inconvenience, &c. occasioned by the seizure (6). 
 
 Where the sheriff under di.fi. fa. seizes goods in the possession 
 of the defendant, to which the defendant has but a defeasible 
 title, and such title is afterwards defeated by events having a 
 retrospective effect, as frequently happens in cases of bank- 
 ruptcy, the sheriff generally becomes liable to an action of 
 trover (c), but not of trespass, because he cannot be made a 
 trespasser by relation (d). 
 
 (x) Reeves v. Slater, 7 B. & C. 241. 
 
 486 ; Fisher v. Magnay, 1 Dowl. 6c (6) Glasspoole v. Voung, 9 B. & 
 
 L. 40; 6 Man. & G. 827, S. C; C. 696. See also Vaughan y. Wil- 
 
 ante, p. 70. kins, 1 B. 6c Ad. 370. Qua:re, whe- 
 
 (y) Ackworth v, Kernpe, Dougl. ther such special damage could be 
 
 40. See also Oughton ti.Seppings, 1 recovered in trover; Brevi'er v. Dew, 
 
 B. & Ad. 241 ; Ghsspoole v. Young, 11 M. & W. 625. 
 
 9 B.& 0.696. (r) Cooper v. Chitty, 1 Burr. 20; 
 
 (s) Jarmain v. Hooper, 1 Dowl. & Smith v. Miles, 1 T. JR. 475; Balme 
 
 L. 769 ; 6 Man. &c G. 827. S. C. v. Hutton, 9 Bing. 471 ; Groves v. 
 
 (a) Felthani v. Terry, cit. Cowp. Cowham, 10 Bing. 5; Garland v. 
 
 419. See also Notley v. Buck, 8 B. Carlisle, 4 Bing. N. C. 7 ; W hitmore 
 
 & C. 160 ; 2 Man. 6c R. 68, S.C. ; v. Greene, 12 M. & W. 184. 
 
 Oughton II. Seppings, 1 B. 6c Adol. (d) See cases in last note.
 
 ACTIONS AGAINST THE SHERIFF IN GENERAL. 121 
 
 Thus, if a sheriff, having seized goods under zji. fa. issued chap. v. 
 on a judgment founded on a warrant of attorney, sells after the st.cT. vr.^ 
 issuing of the fiat, he will be liable to an action of trover at the 
 suit of the assignees, for such an execution is defeated, and the 
 ■property in the goods transferred to the assignees, after issuing 
 of the fiat before sale (e) ; or if the sheriff has received the 
 proceeds, he may be sued for money had and received (y). 
 "Where there is any abuse in the execution of process, trespass 
 will lie against the sheriff and his officer ; as if the officer arrests 
 a person on a writ ofJi.fa.{g), or take the defendant out of the 
 sheriff's bailiwick (h) ; or after the return day of the writ(i); 
 or if he break open an outer door (j), or execute a writ of exe- 
 cution after notice of the allowance of a writ of error (A") ; or if 
 he execute a writ against the person or goods of a defendant, 
 after a direction from the plaintiff not to do so, or after notice 
 from the plaintiff that he has released the debt (l) ; or if, after 
 seizure and sale of chattels real under af.fa., he remain in pos- 
 session for an unreasonable time for the further execution of the 
 writ (m) ; or if he be guilty of any other excess («), even though 
 such excess or abuse be committed by the officer contrary to 
 the express orders given him by the under-sheriff (o), or contrary 
 to the express terms of the writ (^j). 
 
 If the sheriff, having lawfully arrested a party, detains him Unlawful ae- 
 
 _ ,,. i;/'ii-i z>i tainer after 
 
 after such detainer ceases to be lanjul and notice thereof, he rightful ar- 
 will be liable in trespass ; and if, in an action for false impri- 
 sonment under such circumstances, the sheriff justify under 
 the process, the plaintiff may new assign the unlawful de- 
 tainer {q). But it seems that a sheriff cannot be sued in any 
 form of action for detaining a prisoner, who having been un- 
 
 (e) Cheston v. Gibbs, 1 Dowl. & L. W. 239. 
 
 420; S. C. 12 M. & VV. HI. (n) Ralcliffe i\ Burton, 1 Bos. & 
 
 (/) Notley V. Buck, 8 B. & C. Pul. 223. 
 
 160. («>) Scarfe v. Hallifax. 7 M. & W. 
 
 (g) Smart v. Hutton, 8 Ad. & E. 288 ; also per Patteson, J. in Balme 
 
 568, n. V. HuUon, 9 Bing. 474. 
 
 {h) See Holliet v. Bessey, Sir T. (;>) Smart v. HuUon, 8 Ad. & E. 
 
 Jones, 214. 568, n. See further as to liability for 
 
 (i) 2 Esp. Rep. 585. acts of bailiffs, ante, 44. 
 
 (_;■) Lee v. Gansei, Cowp. 1. {q) Magnay v. Burt, 5 Q.B. 381 ; 
 
 \k) Belshaw v. Marshall, 4 B. & 1 Dav. & M. 652, Exchequer Cham- 
 Ad. 336. ber in error, reversing the judgment 
 
 (l) Barker v. St. Quinlin, 12 M. of the Queen's Bench. See also Smith 
 
 & VV. 441. V. Eggintoa, 7 Ad. & Ell. 167. 
 
 (m) Piayfairi). Musgrove, 13 M.&
 
 bj ibe sheriff. 
 
 122 EXECUTION AND RETURN OF WRITS. 
 
 CHAP. V. lawfully in custody, has become entitled to his discharge, unless 
 SECT. VI. j.|^g sheriff has notice of the facts which entitle him to his dis- 
 charge, and a request to be discharged is not tantamount to 
 such notice (r). 
 Not entitled The sheriff is not in any case entitled to notice of action for 
 
 to notice of i • i i i • • • i r> i / \ 
 
 action. any thmg done by him m executmg the process ot the court (s). 
 
 Where an act of parliament gave a power to the sheriff to levy 
 debts due in respect of taxes, when recorded in the Exchequer, 
 it was held that the sheriff was not such a collector as is entitled 
 to a month's notice of action, under the 43 Geo. 3, c. 99, 
 s. 33 (t). 
 
 Justification It is not neccssary for the sheriff to show the judgment in 
 justifying under a writ of execution ; it is enough to show the 
 writ only (u). The sheriff is justified in executing aji.fa. issued 
 after the defendant has been discharged by the Insolvent Debtors' 
 Court, and no action will lie against him for so doing (v). But 
 where the sheriff or his officer justifies under any writ or war- 
 rant, it is necessary for him to set it forth in his plea ; for it is 
 not sufficient to allege generally that he committed the act com- 
 plained of by virtue of a certain writ or warrant to him di- 
 rected (x). The defendant should also show that he has sub- 
 stantially pursued his authority (y), and that the acts complained 
 of were all done under the writ ; for it is not sufficient to jus- 
 tify the sheriff, that a writ has been delivered to him, under 
 which he might, had he chosen, have committed the acts, unless 
 in fact he did commit them under such writ (^) ; and therefore, 
 where in trespass for breaking and entering the plaintiff's 
 house, the defendants (the sheriff and his bailiff) justified under 
 a Ji. fa. and warrant of execution against the goods of B., 
 alleging that the warrant was delivered to one of the defend- 
 ants, a bailiff, to be executed; that goods of B. were in the 
 house, and that by virtue of the writ and warrant, defendants, 
 being sheriff and bailiff, broke and entered, &c. ; to which the 
 plaintiff, admitting the issuing and delivery of the writ to 
 
 (r) Smith v. Egginton, 7 Ad. & Lord Denman, C. J. 
 
 Ell. 167. (v) Whitworth t;. Clifton, 1 M. & 
 
 (s) See per Park, J., 1 Bing. 373. Rob. 531. 
 
 (0 Copland v. Powell, I Bing. (x) 1 Saund.298, n. (1). 
 
 369 ; S. C. 8 Moore, 400. (y) Id. 
 
 (u) Cotes V. Michell, 3 Lev. 20 ; (=) See Lucas D.Nockells. 10 Bing. 
 
 Moravia v. Sloper. Willes, 30, 34; 157 ; Carnaby i;. Welby, 8 Ad. Sc E. 
 
 Andrews v. Marris, 1 Q. B. 17, per 872.
 
 ACTIONS AGAINST THE SHERIFF IN GENERAL. 123 
 
 SECT. VI. 
 
 the sheriff, and the making and delivery of the warrant to the chap 
 bailiff, replied that the defendants of their own wrong, and . 
 without the residue of the cause in their plea alleged, committed 
 ike trespasses : it was held, that, in order to justify the defend- 
 ants, it should have been shown by evidence that the entry and 
 seizure were under the writ and warrant — that upon the record 
 no other facts were admitted than those admitted in terms by 
 the replication, and that the plaintiff was at liberty to show that 
 the seizure was a mere colourable one, and not under the writ (a). 
 Yet if the officer has a legal warrant at the time of seizing the 
 defendant's goods, although he declared he entered for a differ- 
 ent purpose, this is a good justification for the officer (6). We 
 have seen, that if the court out of which the writ issues has 
 jurisdiction over the cause, although the proceedings whereon 
 the writ is grounded be erroneous, or even the writ itself be 
 irregular, yet the writ is sufficient for the sheriff's justifi- 
 cation (c) ; even if the writ be set aside for irregularity, after it 
 is executed by the sheriff, yet it is sufficient to justify his 
 acts (d). But the sheriff would not be justified in executing a 
 writ which, upon the face of it, appeared to be a nullity and un- 
 authorized by law(e) ; nor in executing a writ, after notice that 
 it has been superseded, as if he executes aji.fa. after notice of 
 the allowance of a writ of error (/) ; nor in executing it after 
 notice from the plaintiff not to execute it without further 
 order (g-). In justifying under a writ of mesne process, it is 
 necessary for the sheriff to show the writ returned (h) ; but 
 it is not necessary in a plea of justification by a sheriff's 
 bailiff (?) ; and the sheriff may justify acting under a ca. sa. 
 ov f. fa. without having returned them(j). It is always ad- 
 
 (a) Carnaby v. Welby, supra. (f) Belshaw v. Marshall, 4 B, & 
 
 (ft) Crowther v. Ramsbottom, 7 Ad. 336. 
 
 T. R. 654. Per Holt, C. J. in Gren- {g) Hunt v. Hooper, 12 M. & W. 
 
 viile t). The College of Physicians, 12 664. 
 
 Mod, 387. See Baillie v. Kell, 4 (/;) Britton «. Cole, 1 Salk. 509; 
 
 N.C. 638. Freeman v. Blewitt, id. ibid.; S. C. 
 
 (c) Ante, p. 67 ; Andrews v. Mar- 12 Mod. 394 ; 1 Ld. Raym. 632. 
 
 ris, 1 Q. B. 3; CarraU v. Morley, ib. (i) Girling's case, Cro. Car. 446; 
 
 18. S. C. Sir W. Jones, 378. And see 
 
 (d ) Turner v. Felgate, 2 Sid. 125 ; cases in last note, and Cro. Eliz. 181. 
 
 S. C. 1 Lev. 95. See also In the (j) Rowland i'. Veale, Cowp. 18 ; 
 
 matter of the Glatton Land Tax, 4 Cheasley v. Barnes, 10 East, 82; 
 
 M. & W. 570, per Parke, B. Mountney r. Andrews, Cro. Eliz. 237 ; 
 
 (e) See Carratt v. Rlorley, 1 Q. B. Hoe's case, 5 Rep. 90. 
 18.
 
 124 
 
 EXECUTION AND RETURN OF WRITS, 
 
 CHAP. V. 
 
 SECT. VI. 
 
 Proof of judg- 
 ment, wben 
 necessary in 
 trover. 
 
 When the ac- 
 tion lies 
 asjainsl the 
 old, and when 
 against the 
 new sheriff. 
 
 visable, where an action of trespass is brought against the 
 sheriff or his officer, jointly with the plaintiff or his attorney, 
 for the sheriff to justify separately; for if the justification 
 be joint, and it be bad for the plaintiff, it will be bad for the 
 sheriff or his officer also ; and there are many cases in which 
 the sheriff is justified, but not the party or his attorney (A'). 
 For instance, if the officer and party justify under a ca. sa. 
 together, they are bound to show a regular judgment ; whereas 
 it is a sufficient justification for the sheriff to show the writ 
 without the judgment (/). Where a stranger brings an action 
 of trover against the sheriff, or against a person claiming under 
 a bill of sale of goods from the sheriff, for goods seized and 
 sold under aji.fa., it is said to be necessary to prove the judg- 
 ment as well as the writ {m) ; but it is not necessary to prove 
 the judgment where the action is by the defendant himself (w), 
 or by his assignees if he has become a bankrupt, for they stand 
 precisely in the same situation as the defendant would do (o). 
 
 As between the old and new sheriff, we have seen that the new 
 sheriff is not chargeable with such things which are wholly exe- 
 cuted before they are delivered over to him by the old she- 
 riff (p); for if the old sheriff take a man in execution, and after- 
 wards a new sheriff be made, and before the old sheriff deliver 
 his prisoner to the new sheriff the prisoner escape, the old 
 sheriff only is chargeable for the escape ; for the new sheriff 
 shall not be chargeable for any other prisoners than what are 
 legally delivered over to him {q). 
 
 The law relative to actions against the sheriff, in respect of 
 the execution of process, will be found more particularly noticed 
 in the chapters relating to each process. 
 
 (k) Phillips V. Biron, Stra. 509 ; 
 Smith V. Bouchier, Stra. 993 ; Mid- 
 dleton V, Price, Stra. 1184; Andrews 
 D. Marris, 1 Q. B. 17 ; Samuel v. 
 Duke, 9 M.& W. 622. 
 
 (/) See cases in last note ; Cotes i;. 
 Michell, 3 Lev. 20. 
 
 (m) Martin v. Podger, 5 Burr. 
 2631 ; S. C. 2 Bla. Rep. 701 ; Lake 
 i;. Billers, 1 Ld. Raym. 733. 
 
 (n) Lake v. Billers, 1 Ld. Raym, 
 733 ; Doe v. Murless, 6 M. & Sel. 110. 
 
 (o) Glasier v. Eve, 1 Bing. 209 ; 
 S. C. 8 Moore, 46. 
 
 (p) Westby v. Skinner, Cro. Eliz. 
 365; S.C.3 Rep. 71. 
 
 {q) See judgment of Lord Ellen- 
 borough, 4 East, 606 ; Thomas v. 
 Newnam, 2 Dowl. N. S. 33. See 
 ante, p. 21, et seq.
 
 ( 125 ) 
 
 CHAPTER VI. 
 
 OF THE sheriff's DUTY ON A BAILABLE CAPIAS («). 
 
 Sect. I. — Of the Arrest \ when, where, how made. — Detainer. — 
 Sheriff's Fees on an Arrest. — Privilege from Arrest, 
 when to be allowed by the Sheriff. — Peers, Ambassa- 
 dors, Attornies, Witnesses, <^c., Bankrupts, Seamen 
 and Soldiers. 
 II. — Sheriff's Duty after the Arrest. — How the Defendant 
 should be treated after the Arrest, — Deposit in lieu 
 of Bail. — The Bail Bond ; Sheriff obliged to dis- 
 charge Defendant on giving a Bail-Bond ; In what 
 Form, to whom, for what amount to be made ; — 
 IVhen the Sheriff must discharge the Defendant. 
 
 III. — Proceedings on the Bail-Bond. — Assignment of the 
 Bail-Bond ; where, by whom, and how made. — Ac- 
 tion on the Bail-bond ; in what Court to be brought ; 
 when Proceedings may be stayed on the Bail-Bond. 
 
 IV. — Proceedings against the Sheriff. — Rule to return the 
 Writ. — Return. — Rule to bring in the Body ; Object 
 thereof, at what time obtained, how complied with. — 
 Attachment for not bringing in the Body, hoiv ob- 
 tained, when set aside for irregularity ; regular, on 
 what Terms set aside ; to what Extent the Sheriff is 
 liable on the Attachment ; his Remedy over. 
 V. — Actions for Escape, ^c. — In what Cases maintainable. 
 — The Declaration. — Evidence. — Damages. 
 
 SECTION I. 
 
 Bailable Capias. — Arrest ; when and how made. 
 A WARRANT must be made out to a bailiff as soon as the writ 
 comes to the under-sheriff's office, if he knows where the de- 
 
 (a) This writ, since 1 & 2 Vict.c. under the writ of summons. The ra- 
 il 0, can no longer properly be called puis is only a collateral process to en- 
 a capias ad respondendum. All the force security in case the debtor is 
 proceedings ad respondendum are had about to quit England.
 
 126 sheriff's duty on a bailablk capias. 
 
 CHAP. VI. fenclant lives (b) ; on which point he is, it seems, bound to make 
 ^^^"'^^ '• reasonable inquiry, as the plaintiff is not bound to identify and 
 point out the defendant as a condition precedent to the sheriff's 
 being bound to arrest him (c). The form of the warrant, and 
 the indorsements requisite thereon, and when it must be jointly 
 executed, have been already considered (d). The name of the 
 attorney suing out the writ (e), and the day and year indorsed on 
 the writ (/), must be indorsed on the warrant. But an omis- 
 sion in this respect only subjects the sheriff to a penalty, and 
 does not vitiate the warrant (g). 
 In cases of If the defendant be sued by a wrong name, the sheriff would 
 
 be a trespasser for arresting the defendant on mesne process, 
 unless the defendant were known as well by the name mentioned 
 in the writ as by his real name (h). And even although the 
 defendant should be known by both names, or had used the 
 name in the writ in the particular transaction, the sheriff, al- 
 though he would he justified in making the arrest if he thought 
 fit so to do, would not, at least without notice of the circum- 
 stances, be liable to an action for not executing the writ, or for 
 an escape (i). 
 At what time If the bailiff make the arrest before the writ is delivered to 
 onghMo^be the sheriff, or before he has received his warrant, he will be 
 '"*''^' subject to an action for false imprisonment (A:). But after the 
 
 writ is delivered to the sheriff, and after the warrant is delivered 
 to the ofRcer, the arrest may be made, according to the memo- 
 randum subscribed (/) to it (according to 1 & 2 Vict. c. 110, 
 sched.), within one calendar month from the date thereof, in- 
 cluding the day of such date, and not afterwards. It may be 
 made at any hour of the day or night (m). An arrest on such 
 process upon a Sunday, we have seen, is illegal by the statute 
 29 Car. 2, c. 7, s. 6 (n). 
 
 It has also been noticed that the sheriff must execute the 
 
 (b) See form, Appendix. A. & E. 840. 
 
 c) Dyke «. Duke, 4Bing.N.C. 197. (k) 1 Saund. 298 ; Hall i;. Roche, 
 
 (d) See ante, p. 71, cfse?. 8 T. R. 187; Astley v. Goodjer, 2 
 
 (e) 2 Geo. 2, c. 23, s. 22 ; 12 Geo. Dowl, 619. 
 
 2, c. 13, s. 4 ; see 2 W. 4. c. 39, s. 12. (0 See ante, p. 78. 
 
 (/) 6Geo. 1,0.21, s. 54 ; seeajUe, (m) Macally's case, 9 Co. 66; 
 
 p. 71. Anon. 1 Chit. 357. 
 
 (g) Ante, 71; 1 Chit. Archb. 525. (n) ^wfe, p. 79. Wilson d. Tucker, 
 
 (h) Ante, pp. 70 and 120. 1 Salk. 78 ; Loveridge v. Plaistow, 2 
 
 (i) Morgan v. Bridges, 1 Bar. & Hen. Blac. 29; Taylor v. Phillips, 
 
 Aid. 647; Brunskill d. Robertson, 9 3 East, 155. It is said in the case in
 
 ARREST, WHEN AND WHERE MADE. ]27 
 
 process within a reasonable time, and if he neglects to do so will chap. vi. 
 subject himself to an action for recovery of any damage sustained ^^^^' '* 
 by reason of his neglect (o). In an action for default made 
 before the writ has become returnable, special damage must be 
 alleged and proved (p). Mere delay in the execution of the writ 
 is no ground for an attachment against the sheriff (^). 
 
 The sheriff or his officer may arrest the defendant at any Where made, 
 place within his county ; but the sheriffs of London, on a writ 
 directed to them, cannot make an arrest in Middlesex, or vice 
 versd. If the officer arrest a person out of the county to which 
 a writ is directed, he will be liable to an action for false impri- 
 sonment, and the Court (on a speedy application, but not after 
 considerable delay) (r) will discharge the defendant out of cus- 
 tody, or order a bail-bond, if taken on such arrest, to be can- 
 celled {s) ; but the Court, to interfere summarily in such case, 
 will require an affidavit that there is no dispute as to the boun- 
 dary (<). An arrest cannot be legally made in the king's pre- 
 sence, nor in any of his royal palaces (m) ; nor in the Tower of 
 London {x), nor in a Court of justice whilst the justices are sit- 
 ting (y) ; but it seems the Court would not summarily discharge 
 a defendant out of custody if so arrested {z), though it would 
 be punishable as a contempt. If the writ do not contain a non 
 omittas clause, we have seen that the sheriff should issue his 
 mandate to the bailiff of a liberty to arrest the defendant, if he 
 reside within a liberty (a). And although a sheriff is liable to 
 an action at the suit of the owner of the franchise for executing 
 a writ without a non omittas clause within a liberty (h), yet an 
 arrest there made by the sheriff is good ; he is not therefore 
 liable to an action of trespass ; nor will the Courts discharge a 
 defendant so arrested out of custody, although such arrest be 
 
 Salk. that the patty arrested on a Sun- (0 Id, ibid. Storer v. Rayson, 4 
 
 day may have an action for false im- Dowl. & Ry. 739 ; S. C. 3 Bar. & 
 
 prisonment. Cres. 158; D.Walters, 1 Chit. 
 
 (o) Ante, 18; Randell j;. Wheble, Rep. 14. 15, n. (rf) ; ante, 74. 
 
 10 Ad. & El. 719. . (w) Winter v. Miles, 10 East, 578 ; 
 
 (p) lb. 1 Camp. 475; ante, 75. 
 
 (q) Rex^;. Sheriff of Kent, 2 M. & (x) Batsoni;. lVrLean,2Chit.Rep 
 
 W. 316. 51; ante, 74. 
 
 (r) Greenshield v. Pritchard, 8 M. (t/) Ante, 75. 
 
 &W. 148; Fownes j;. Stokes, 4 Dowl. (z) S pinks I'.Spinks, 7 Taunt. 311. 
 
 125. (a) 5 Geo. 2, c. 27, s. 3. 
 
 (s) Hammond v. Taylor, 3 Bar. & (6) See Carrett x'. Smallpage, 9 
 
 Aid. 408. East, 330.
 
 an outer door. 
 
 128 SHERIFl"'s DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. made within the verge of the palace (c). So, on the other hand, 
 ^^^'^' ^' if the slierifFenter a franchise without a non omitlas, and arrest a 
 defendant, he will be liable to an action for allowing the de- 
 fendant to escape out of his custody (f/). It is no objection to 
 an arrest that it was made in a gaol, the defendant beina there 
 for his own purposes (e). 
 How made— The officer cannot legally break open the outer door or win- 
 b'reak"open ^ow of the housc, either of the defendant or of a stranger, to make 
 an arrest (/); but having once gained peaceable admission to the 
 house, the officer may break open an inner door, even if it be the 
 door of a lodger (g). It has indeed been laid down, that although 
 the sheriff cannot break open the outer door of the house of the 
 defendant to arrest him, yet he may break open the outer door 
 of the house of a stranger for that purpose (A). This, however, 
 it is submitted, is not correct ; in neither case can he break 
 open the outer door, excepting when he has already arrested 
 the defendant, who escapes ; then, on fresh pursuit, the sheriff 
 may break open the outer door of any house to retake the de- 
 fendant (i). There is also this diversity between the house of the 
 defendant and a stranger ; the house of the former the plaintiff 
 is justified in entering, without forcing the door, to seek for the 
 defendant, even if he should happen not to be there (k) ; but the 
 sheriff is only justified in entering the house of a stranger if the 
 defendant be actually therein; for it is no justification if the de- 
 fendant be not there, even if he has resided there immediately 
 before the entry, and the officer had probable cause to suppose 
 that the defendant was there at the time of the entry (/). 
 w^hat In making the arrest, the sheriff should actually seize or 
 
 touch the defendant's body (m) ; a touch, however slight, will 
 constitute an arrest (?«). Thus where the sheriff's officer went 
 
 (c) Spinkst). Spinks, 7 Taunt. 311. Hertford Spring Assizes, 1824. 
 
 {d) Piggott V. Wilkes, 3 Bar. & (k) Ratcliffe v. Burton, 3 Bos. & 
 
 Aid. 502. Pul.223 ; and see Hutchinson v. Birch, 
 
 (e) Lovet v. Hill, 4 Dowl. 579. 4 Taunt. 619. 
 
 (/) Ante, 75; see Doe i;. Trye, 5 (/) Johnson u. Leigh, 6 Taunt. 246; 
 
 Bing. N. C. 573, where the officer Cooke u. Birch, 5 Taunt. 765 ; see also 
 
 unjustifiably ihrust his hand through 4 Taunt. 619; Morrish i;. Murrey, 13 
 
 some paper which supplied the place M. & W. 52. 
 
 of a broken pane, and took out a key {m) Genner i'. Sparkes, 1 Salk. 79; 
 
 with which to open the outer door. S. C. 6 Mod. 173. 
 
 {g) Lee V. Gansell, Cowp. 1 ; and (n) W. Fish's case, cited 2 Roll. 
 
 see a/ite, 75. Rep. 138; Palmer, 53; NichoU v. 
 
 (h) Foster, 319. Darley, 2 Y. & J. 399. 
 
 (i; Per Best, C. J., Rex v. Conolly, 
 
 amounls (o an 
 arrest
 
 ARREST, WHEN AND HOW MADE. 129 
 
 to the defendant's house to arrest him on a ca. sa., and read the chap. vi. 
 
 warrant over to him, whereupon the defendant rushed out ' 
 
 against the officer, who seized him round the waist, but was 
 unable to hold him, it was held that this amounted to an 
 arrest (o). Mere words, as " I arrest you," will not, however, 
 of themselves constitute an arrest {p). So where the officer, 
 without producing the warrant to the defendant, or threatening 
 to arrest him, sent a message asking him to fix a time and call 
 and give bail, and the defendant accordingly fixed a time, called, 
 and gave bail; such proceeding was held no arrest (^). And 
 where the officer called with the warrant on the defendant's 
 attorney, and required bail to the sheriff, which was afterwards 
 given, it was held no arrest (r). But if the officer, being in a 
 position to arrest the defendant, uses such words as " I arrest 
 you," and the defendant acquiesces, and goes with the officer, it 
 will be a good arrest (*). So it will in general be an arrest, if 
 the defendant does any act under the immediate compulsion of 
 the process, though the officer does not actually touch him. It 
 was so held, where the defendant was offered the alternative of 
 being arrested and giving bail, or giving up property in his pos- 
 session, and he chose to give up the property (<). And if a 
 bailiff comes into a room and tells the defendant he arrests him, 
 and locks the door, that is an arrest, for the defendant is then 
 in custody of the officer (ii). 
 
 In order to constitute an arrest under such circumstances, it 
 seems the warrant ought to be produced, or at least the defend- 
 ant made aware that the officer has it, and is in a position actu- 
 ally to arrest him in case of resistance (x). It is not necessary 
 that the officer to whom the warrant is directed should be the 
 hand that arrests, nor that he should be in the presence of the 
 person arrested, nor actually in sight, nor is any exact distance 
 prescribed ; it is sufficient if he be near, and acting in the 
 arrest (?/). 
 
 (o) Nichollt;.Darley,2Y.&J.399. (t) Grainger v. Hill, 4 N. C. 212. 
 
 (p) Russen v. Lucas, 1 Car. & P. (ti) Williams v. Jones, Rep. temp. 
 
 153; see also 1 Salk. 79; 6 Mod. Hard. 301. See also Arrowsmith v. 
 
 173. Le Mesurier, 2 New Rep. 211, 212, 
 
 (?) Berry v. Adamson, 6 B. & C. and qumre. 
 
 528. (x) Robins v. Hender, 3 Dowl. 542, 
 
 (r) James v. Askew, 8 A. & E. 351 . Williams, J. See also Barratt v. Price, 
 
 (s) Homer v. Batiyn and others, 9Bing. 566; 1 Dowl. 725 ; 2 M. & 
 
 Bull. N. P. 62, Per Abbott, C.J. ,1 ScoU, 339, S. C. 
 
 C. & P. 153. (3/) Blatch v. Archer, Cowp. 63. 
 
 K
 
 130 sheriff's duty on a bailable capias. 
 
 CHAP. VI. If, whilst the defendant is in the legal custody of the sheriff, 
 SECT. I. gi^y other writ he delivered to him, or at the under-sheriff's or 
 
 Detainer. deputy's office, at the suit of the same or of any other plaintiff, 
 the defendant is, by virtue of such delivery, in custody as well 
 under such otiier writ as the writ upon which he is arrested (2). 
 So also, if a defendant be legally arrested by the sheriff in one 
 action, such arrest will operate as an arrest in all actions in 
 which the sheriff holds writs against him at the time (a), and 
 the sheriff would in such case be justified in detaining the de- 
 fendant upon such other writs, even though the defendant sub- 
 sequently obtained an order for his discharge from custody in 
 the action upon which he was arrested (6). And therefore if the 
 defendant should be ordered to be discharged in the action m 
 which he is arrested, the oflficer should always search the sheriff's 
 office, to see if there be any other process lodged against the 
 defendant, before he discharges him. But if the first arrest be 
 void as made without any process(c), or after it is returnable (d), 
 or if it be made under process which is afterwards set aside for 
 irregularity (e), or if it be made by means of any trickery of 
 the plaintiff or his attorney or agent (/), the defendant cannot 
 be detained by subsequent process, at suit of the same plaintiff. 
 And where an arrest is effected by a wrongful act of the sheriff, 
 or of another person, afterwards adopted by the sheriff, such arrest 
 will not operate as an arrest, even upon valid writs previously 
 lodged; nor, whilst the defendant is in custody upon such illegal 
 
 See Cuckson v. Winter, 2 Man. & R. See also Watson v. Carroll, 4 M. & 
 
 315, n.; Barratt r. Price, uhi sup. W.592; Barclay y. Faber, 2 B. & A. 
 
 Fownes t>. Stokes, 4 Dowl. 125; 1 743; S. C. 1 Chit. Rep. 579. And 
 
 Chit. Arch. 530. see note to 1 Chit. 579, 580 ; Davis 
 
 (s) Frost's case, 5 Rep. 89; W^right v. Chippendale, 2 Bos. 6l Pul. 282 ; 
 
 V. Stanford. 1 Dowl. N.S. 272. It is Howson v. Walker, 2 Bla. Rep. 823. 
 
 said that if a person be in the custody White v. Gompertz, 5 Bar. 6c Aid. 
 
 of the sheriffof Northumberland in that 905. 
 
 county, and another writ against the (c) Loveridge v. Plaistow, 2 Hen. 
 
 same person be delivered personally Bla. 29. 
 
 to the sheriff in London, the prisoner (d) Barlow v. Hall, 2 Anstr. 461 ; 
 
 is thereby immediately in custody in Birch v. Podger, t N. R. 135. 
 
 that suit; Salk. 274. Sed quo-re. (e) Hall i). Hawkins, 4 M. & W. 
 
 (a) Barratt i>. Price, 9 Bing. 570, 591 ; 7 Dowl. 200, S. C. 
 
 Tindal, C. J.; Collins i'. Yewens, 10 ( / ) Barratt v. Price, 9 Bing. 566; 
 
 A. & E. 570; Ford i'. Leche, 6 A. & 1 Dowl. 725, S. C See Jacobs v. 
 
 E. 707, Patteson, J.; Barrack u. New- Jacobs, 3 Dowl. 677; Goodwin v. 
 
 ton, 1 Q. B. 525. ' London, 1 A. & E. 378 ; Mackie v. 
 
 (b) Ex parte Coggs, 6 Dowl, 461 ; W^arren, 2 Moo. & P. 279 ; 5 Bing. 
 Barrack v. Newton, 1 Q. B. 525. 176, S.C.
 
 ARREST DETAINER. 131 
 
 SECT. I. 
 
 arrest, can he be detained upon valid writs subsequently lodged (^), chap 
 unless upon a fresh arrest. And such fresh arrest cannot, it 
 seems, be made whilst he is in or returning from the illegal cus- 
 tody (k) ; certainly not before the rule for his discharge has 
 been served on the person in whose custody he is(i). But 
 where an authorized person, even a bailiff, without the sanction 
 of or collusion with the sheriff or any authorized person, arrests 
 the defendant without a warrant, either he or any other bailiff, 
 who obtains a legal warrant, may arrest pending such illegal 
 custody (A"). To entitle a prisoner to his discharge under such 
 circumstances, the first wrongful arrest must have been either 
 the act of or ratified by the plaintiff or the sheriff. Where 
 several processes are lodged, and one is irregular, the question 
 under which the defendant was first arrested is not concluded 
 by the marshal's return (/). 
 
 If the defendant be privileged from arrest at the time of the 
 caption, he cannot be detained at the suit of the same or any 
 other plaintiff; for if he could, his privilege would be illusory (m). 
 The order for discharge in such a case should be headed in all 
 the causes under which the prisoner is detained, as he is only 
 entitled to be discharged from those mentioned therein (??). 
 
 It is only, however, in cases where the first arrest is void or 
 illegal by reason of privilege or of the wrongful act of the 
 sheriff, that third parties other than and not connected with 
 him, under whose process the first arrest took place, can be 
 affected by the impropriety of the first arrest. If the defendant 
 has been arrested upon irregular process, which is afterwards set 
 aside, he is not entitled to be discharged from the process of 
 another plaintiff, unless there be some collusion (o). 
 
 (g) Barratt «. Price, 9 Bing. 566 ; (/) Wright v. Stanford, 1 Dowl. 
 
 Collins V. Yewens, 10 A. & E. 570 ; N. S. 272. 
 
 Humphrey v. Mitchell, 2 Bing. N. C. (m) Spence v. Stuart, 3 East, 89. 
 
 619 ; Pearson v. Yewens, 5 Bing. N. (n) Watson v. Carroll, 4 W. & W. 
 
 C.489. 592. 
 
 (/!) R. M. 15 Car. 2, s. 2. And (o) Ex parte Cogg, 6 Dowl. 461 
 
 see Farmer r. Jenkinson, Cook, 34; Barrack v. Newton, 1 Q. B. 525 
 
 Webb V. Dorwell, Barnes, 400; 1 Barclay v. Faber, 2 B. & Aid. 743 
 
 Chit. Arch. 479. S. C. I Chit. Rep. 579. And see note 
 
 (i) Pearson v. Yewens, 5 N. C. to 1 Chit. 579, 580; Davis v. Chip- 
 
 567. pendale. 2Bos.&Pul. 282 ; Howson 
 
 (k) Collins V. Yewens, 10 A. & E. ■". Walker, 2 Bla. Rep. 823 ; and see 
 
 570 ; Robinson v. Yewens, 5 M. & White v. Gompertz, ft Bar. & Aid. 
 
 W. 149. See also Goodwin v. I,or- 905. 
 don, 1 A. & E. 378 
 
 K 2
 
 1.32 sheriff's duty on a bailable capias. 
 
 CHAP. VI. Where a defendant, on a capias since 1 & 2 Vict. c. 110, is' 
 ^^^^' '' in the custody of an officer to whom process can be directed, 
 he can of course be detained under similar process directed to 
 the sanne officer ; but when he is in custody of an officer, such 
 as the marshal of the Queen's prison, to whom such process 
 cannot be directed, there is no direct mode of detaining him, 
 and resort must be had to the expedient of procuring a warrant 
 from the sheriff, directed to one of the turnkeys, so as at once 
 to arrest the defendant in case of his discharge from the first 
 custody (p). 
 Fees pay.ibie The fccs payable to the sheriff and bailiff on the arrest will 
 
 to ihe sheriff ,^,., 
 
 and btiiitton be found in the section on the remuneration of sheriffs (</). 
 
 When the ^^ ^^^ privilege from arrest, little is required in this place ; 
 
 ai'ii.w"^tirj'de- ^'^'' there are very few cases in which the sheriff is bound to 
 
 vlie'e"^'* P"' take notice of the defendant's privilege. If the sheriff, on a 
 bailable writ, were to arrest a peer, or a member of the House 
 of Commons, he would render himself liable to be committed 
 for a breach of privilege (r), although he would not be liable 
 to an action for false imprisonment at the suit of the party 
 arrested (s). And by the statute 7 Anne, c. 12, s. 4, the sheriff, 
 or his officer, would be subject to fine and imprisonment, and 
 corporal punishment, for arresting on civil process an ambas- 
 sador or his servant, provided the name of such servant had 
 been registered according to the provisions of that act. But 
 in all other cases of privilege the sheriff may arrest the de- 
 fendant, and no action for false imprisonment can be maintained 
 against him for so doing (^). Nor will any action on the case 
 lie for arresting, even after notice, a privileged person, when 
 the privilege, as in the case of a witness, is the privilege of 
 the court (?<). It may he otherwise where the arrest is mali- 
 
 (/)) See Edwards v. Robertson, 5 6 Rep. 53. Per Buller, J., Doug. 677. 
 
 M, & W. 520. (t) Tarlton v. Fisher, Doug. 672; 
 
 (9) Ante, p. 99, el seq. See as to Crossley v. Shaw, 2 Bla. Rep. 1085; 
 
 the previous practice, Martin D. Slade, (Cameron v. Lightfoot, ihid. 1190; 
 
 2 N. R. 59; JNlartin t;. Bell, 6 M. & see also Parsons v. Lloyd, 3 Wils. 
 
 Sel. 220; Dew v. Parsons, 2 B. & 341 ; Walter v. Rees, 4 Moore, 34; 
 
 AlH. 562 ; Plevin v. Prince, 10 Ad. & Stokes v. While, 1 C. M. & R. 223 ; 
 
 E. 498. Magnay v. Burt, 5 Q. B. 381, in 
 
 (r) Bac. Ab. Privilege (C) 6 ; see error. 
 
 1 Keble, 845 ; 4 Moore, 34 ; see (w) Magnay v. Burt, Exchequer 
 
 also Stockdale v. Hansard, II A. & Chamber, in error from Queen's Bench, 
 
 E. 253. 5 Q. B. 381 ; and see Newton v. Con- 
 
 (s) The Countess of Rutland's case, stable, 2 Q. B. 157.
 
 ARREST, PRIVILEGE FROM. 133 
 
 ciously made after notice of a personal privilege {x). The pro- chav. vi. 
 per remedy for a privileged person who is arrested, is by '-1 
 
 moving the Court, out of which the process issued, to be dis- 
 charged. For if the sheriff were obliged to allow the defend- 
 ant's privilege, it would impose upon him the responsibility of 
 deciding and acting upon questions of great difficulty. If, after 
 the sheriff has received an order for the discharge of a person 
 from custody on the ground of privilege, he unlawfully detains 
 him, the proper remedy is an action of trespass, not case {y). 
 
 However, the sheriff may, if he pleases, allow the defendant's 
 privilege, and return it to the court (z) ; but he must deter- 
 mine it at his own peril, for if the party be not in fact privi- 
 leged, the sheriff will be liable to an action {a). 
 
 It will be merely necessary to notice generally the different 
 grounds on which persons are privileged from arrest. 
 
 The privilege from arrest is either permanent, temporary, or 
 local. Local privileges have been mentioned in another place (6). 
 
 The persons permanently privileged from arrest are, the king The royal 
 or queen regnant, the queen consort, and the royal family. The thT'serva'nta 
 servants in ordinary, or menial servants, of the king or queen reg- ""^equetn. 
 nant (c) ; who even for a debt contracted in trade carried on by 
 them (d), are not liable to be arrested, even upon a ca. sa., with- 
 out leave obtained from the lord chamberlain of the royal house- 
 hold (e). Thus a chaplain in ordinary (/), a lord of the bed 
 chamber (g-), a page of the pre3ence(/«), a herald at arms(/;, a 
 clerk of the kitchen (^), a candle and fire lighter to the yeomen 
 of the guard (/), are privileged. But when a gentleman of the 
 privy chamber was arrested, the Court of King's Bench refused 
 
 (x) See Watson v. Carroll, 4 M. (d) Rex v. Forter. 2 Taunt. 167. 
 
 & W. 598, per Parke. B. (e) Rex v. Moulton, 2 Keb. 3 ; T. 
 
 (>j) RJagnay v. Burt, in error, re- Raym. 152; Winter v. Dibdin, 13 
 
 versing the judgment of the Queen's M. & W. 25; Dyer v. Disney, 16 
 
 Bench, 5 Q. B. 381. M. & W. 312. 
 
 (2) Inge !). Ilenick, B. R., M. 22 (/) Byrn d. Dibdin. 3 Dowl. 448; 
 
 Geo. 3, cil. Doug. 675. Winter v. Dibdin, 13 M. & W. 25. 
 
 (a) Delvalle v. Plomer, 3 Camp. (g) Aldridge v. Barry, 3 Dowl. 
 47; see also 1 Wils. 20; 4 Taunt. 450, n. 
 
 631 ; and per cnr., Watson v. Carroll, (/() Reynolds v. Pocock, 7 Dowl. 4. 
 
 4 M. & W. 592. (i) Dyer v. Disney, 16 M. & W. 
 
 (b) Ante, p. 75. 312. 
 
 (c) Bartlett v. Hebbes, 5 T. R. (k) BartlettD.Hebbes, 5 T.R. 686. 
 686; Forster v. Hopkins, 2 Chit. (/) Ration v. Hopkins, 6 M. & S. 
 
 Rep. 46; see 1 Dowl. & Ry. 127. 271.
 
 134 sheriff's duty on a bailable capias. 
 
 CHAP. vr. to discharge him on motion, leaving him to his writ of privilege, 
 ^^"•^- as it appeared by the affidavits that the attendance of the 
 gentleman of the privy chamber was very rarely required (m). 
 And the same in the case of the fort major or deputy go- 
 vernor (w), or wardens (o) of the Tower. And it seems that 
 the servants of a queen consort, or dowager, have no such pri- 
 vilege (jy). 
 Peirs. Peers of the realm are privileged from arrest both upon 
 
 mesne process and in execution (q). Peeresses are also entitled 
 to the same privilege, whether they are peeresses by birth, by 
 creation, or by marriage (r). This privilege, by the Act of 
 Union with Scotland (5 Anne, c. 8, art. 38), is extended to 
 Scotch peers and peeresses, whether chosen to sit in parliament 
 or not (s). So in like manner, by the stat. 39 & 40 Geo. 3, c. 67, 
 art. 4, the Irish peers and peeresses are privileged from arrest (<). 
 But if it be a disputed peerage, and the defendant has not been 
 summoned to the House of Peers (if an English peer), the 
 Court will not try the question upon motion («). But this pri- 
 vilege does not protect peers from being attached for contempt 
 of the process of the Court (a;), although they cannot be taken 
 on an attachment for the non-performance of an award (y). 
 
 (m) Luntley v. Batline, 2 Bar. & peeress in her own right, although she 
 
 Aid. 234 ; Tapley v. Battine, 1 Dowl. marry a commoner ; it is otherwise in 
 
 & Ry. 79 ; see also Rex v. Frampton, the case of a peeress by marriage, if 
 
 2Keb. 485; and 2 Dowl. & Ry. 250; after the death of her husband she 
 
 S. C. 1 B. & C. 139. But see Dyer marry ^a commoner; Co. Litt. 16b ; 
 
 V. Disney, tibi supra. As to the writ 2 Inst, 50. 
 
 of privilege, see Magnay v. Burt, 5 (s) Fortescue, 165; see Digby v. 
 
 Q. B. 381. The Earl of Sterling, 8 Bing. 55; 
 
 (n) Batson v. M'Lean, 2 Chit. R. S. C. 1 Dowl. 248. Where the de- 
 
 48 ; Sand v. Forest, 1 B. & C. 189 ; fendant having voted in the character 
 
 2 D. & R. 250, S. C. But it seems of a Scotch peer on three occasions, 
 
 he could not be arrested within the the Court held him entitled to his pri- 
 
 Tovver, except by leave of the governor: vilege without strict proof of his title. 
 
 ante, 75. (0 Coates v. Lord Hawarden, 7 B. 
 
 (o) Bidgood V. Davies, 6 B. & C. & C. 388. 
 
 84; see last note. (u) Lord Banbury's case, 2 Salk. 
 
 (p) Starkie's case, 1 Keb. 842; 152; Chester v. Upsdale, 1 Wils. 
 
 King and Capell v. Band and Segrave, 278 ; S. C. 2 Lord Raym. 1247. In 
 
 1 Keb. 877. the case of a disputed peerage before 
 
 (q) 6 Rep. 53 ; 9 Rep. 49 a, 68 a ; the House of Lords, the application 
 
 Sly. Rep. 222; 2 Salk. 512; 2 H. for discharge should be made to that 
 
 Bla. 272 ; 3 East, 127. house, if sitting ; Smart v. Johnson, 
 
 (r) 1 Vent. 298 ; 6 Rep. 53, sed 6 Dowl. 90. 
 
 vide Sty. Rep. 252; 2 Chan. Cas. (a) 1 Wils. 332; 1 Burr. 631. 
 
 224 ; see also 7 B. & C. 389, note to (v) Walker v. The Earl of Grosve- 
 
 Coates V. Lord Hawarden. And a nor, 7 T. R. 171.
 
 ARREST, PRIVILEGE FROM. 
 
 135 
 
 The servants of peers were formerly privileged from arrest, but chap. vi. 
 this privilege is now taken away, by the stat. 10 Geo. 3, c. 50, ^^^'^•^- 
 s. 10. The Courts will, on motion, discharge a peer who is 
 arrested (z) ; but the sheriff is not a trespasser for arresting a 
 peer(rt), although he might be committed for a contempt of the 
 House of Peers (b). 
 
 Members of the House of Commons are privileged from Memb.isof 
 
 1 rr.. 1- • 7. 1 • • M ">'^ Hunse of 
 
 arrest to the same extent as peers. 1 he nmit ot their privilege Commons. 
 when parliament is not sitting has never been very strictly 
 defined (c) ; but it seems now to be admitted law that the 
 privilege extends to forty days after every prorogation or dis- 
 solution, and forty days before the day appointed for the next 
 meeting of parliament (c?). It seems that candidates and voters 
 are not privileged (e). The Courts, on motion, will discharge a 
 member of the House of Commons who has been arrested on 
 civil process (y). If an unprivileged person, whilst in custody 
 on civil process, is elected a member of parliament, he thereby 
 becomes entitled to his discharge (g). In case of a conflict 
 between the Court and the House, on a question of privilege, 
 the sheriff's duty is to obey the Court, not the House (/«); but 
 it seems the House, if he does so, will, notwithstanding such 
 duty, commit the sheriff, and not the Court (i) ; and the Court 
 cannot help him. 
 
 Clergymen going to and returning from church, and whilst Clergy and 
 
 p . ,. . . ••11/' . /7 > 1 members of 
 
 performing divine service, are privileged from arrest (k), but not the convoca- 
 if they stay in church to avoid process (/). Members of the 
 convocation, when sitting, it seems, enjoy the same privilege as 
 members of the House of Commons (?h). 
 
 (z) Stra. 990. And the Court will G. 437; Goudyv. Duncombe,?(6i.s«p. 
 
 set aside proceedings ; 4 Taunt. 668. (g) Phillips y.WellesIey, 1 Dowl.9. 
 
 (a) Countess of Rutland's case, (/i) Stockdale v. Hansard, 11 Ad. 
 6 Rep. 53. & El. 2.53. 
 
 (b) Bac. Abr. Privilege (C) 6 ; see (i) See Case of the Sheriffs of Mid- 
 Stockdale v. Hansard, 9 Ad. & El. dlesex, 11 Ad. & El. 273. 
 1 ; 1 1 Ad. & El. 253, 297. (A:) 50 Edw. 3, c. 5 ; 1 Rich. 2, 
 
 (c) See Bac. Abr. Privilege (C) 0.15; and see 1 Mar. sess. 2, c. 3; 
 4; Scobell, 109, 110. see also 12 Rep. 100; and Goddard 
 
 (d) Holiday v. Pitt, Rep. temp. v. Hariis, 7 Bing. 320; and see 9 
 Hard. 28, 37; S. C. 2 Stra. 985; Geo. 4, c. 31, s. 23. 
 Comyns' Rep. 444; Goudy v. Uun- (/) 8Ilen.6, c. 1; 1 Eq. Cas. Abr. 
 combe, 1 Exch. R. 430. 349. 
 
 (e) London case, 2 Peckw. 288; 1 (m) 12 Rep. 100 ; 3 VVils. 341 ; 
 Chit. Arch. 466. 2 Bla. Rep. 1087, 1 190; 1 Eq. Cas. 
 
 (/) SeeCassidyy.Steuait,2Man.& Abr. 349. 
 
 tion.
 
 I.IG SHERIFF S DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. By the statute 7 Anne, c. 12, (which is merely declaratory of 
 
 ^^^'^' '' the law of nations (o)), " All writs and processes that should at 
 
 Embassadors anv time thereafter be sued forth or prosecuted, whereby the 
 
 Mill ilieir ser- •' ■>• ■ ■ c r • 
 
 •"'ts. person of any,ambassador, or other public minister of any foreign 
 
 prince or state, authorized and received as such by her majesty, 
 her heirs or successors, or the domestic, or domestic servant of 
 any such ambassador or other public minister, might be arrested 
 or imprisoned, or his or their goods and chattels might be dis- 
 trained, seized, or attached, should be deemed and adjudged to 
 be utterly null and void, to all intents, constructions, and pur- 
 poses whatsoever." Consuls are not public ministers within the 
 meaning of this act, and neither they nor their servants are 
 thereby privileged from arrest (p). And in order that a minister 
 should entitle himself to the privilege conferred by this act, he 
 must be accredited by our court (ly). By the 5th section of the 
 above statute, such of the domestic servants of an ambassador, 
 &c., as are subject to the bankrupt laws, are deprived of this 
 privilege (r). And it has been adjudged (s) that a person claim- 
 ing this privilege as the servant of an ambassador, must be really 
 and bond Jide his servant at the time of the arrest (<). For, by 
 the law of nations, a public minister cannot protect a person who 
 is not his bond Jide servant. And a person cannot be considered a 
 bond Jide ser want of a minister, if he holds a situation incompatible 
 with his duties as such servant (?<). But this privilege does not 
 merely extend to servants strictly speaking, but a secretary to 
 an ambassador has been holden to be privileged from arrest 
 under this act {x). However, it is not necessary that the ser- 
 vant should reside in the ambassador's house (?/). Nor is it 
 material whether the servant be a foreigner or a subject of this 
 country (z). The servant of an ambassador is entitled to this 
 
 (o) Per Lord Mansfield, C. J., 4 Dowl. & Ry. 833 ; S. C. 1 Bar. & 
 
 Burr. 2016; Triquet v. Bath, 3 Burr. Cress. 554. 
 
 1478. (t) Heathfield v. Chilton, 4 Burr. 
 
 (p) Viveash v. Becker, 3 Maule & 2015. 
 
 Sel. 284 ; liarbuit's case, Rep. temp. (m) Masters v. Manby, 1 Burr. 
 
 Talbot, 281. 401 ; Darling ?;. Atkins, 3 Wils. 33. 
 
 (q) Per Lord Mansfield, 4 Burr. (x> Iriquetr. Bath, 3 Burr. 1478; 
 
 2016. Hopkins v. De Roberts, 3 1'. R. 79. 
 
 (r) Fontainier v. Heyl, 3 Burr. (v) Evans u- Hicks, 2 Lord Raym, 
 
 1731. 1524; S. C. 2 Stra. 797. 
 
 (s) Lockwood V, Dr. Coysgarne, 3 (z) Triquet t). Bath, 3 Burr. 1438 ; 
 
 Burr. 1676; see also 3 Camp. 47; Lockwood v. Coysgarne, ibid. 1676; 
 
 1 Wils. 20; Novello v. Toogood, 2 Heathfield v. Chilton, 4 Burr. 2015.
 
 ARREST, PRIVILEGE FROM. 137 
 
 privilege, although his name be not registered under the 5th chap. vi. 
 section of the act (a). This privilege, however, is the privilege ^^^^' '• 
 of the ambassador and not of the servant, and a clear case of 
 service must be made out before the court will interfere to dis- 
 charge the defendant on motion (6). 
 
 By section 4 of the statute of 7 Anne, c. 12, every person Punishment 
 
 . /• .1 , • o • upon persons 
 
 presummg to sue lortn or prosecute any writ, &c. agamst any airesnng am- 
 foreign minister or his servant, are to suffer such penalties and theiTservanu, 
 corporal punishment, as the Lord Chancellor, the five Chief 
 Justices, or any two of them, may judge fit to be inflicted; 
 provided the name of such servant has been registered at the 
 office of the secretary of state, and transmitted to the office of 
 the sheriff of London and Middlesex (c). But although the 
 name be registered as the act directs, if the person be not bond 
 fide the servant of the ambassador, and the sheriff refuse to 
 execute the process, the plaintiff may maintain an action against 
 him(rf), or rule him to return the writ(e), and in either case the 
 question of the defendant's privilege will be raised before the 
 court (/). 
 
 Attornies and other officers of the courts were, before the stat. Atiomies. 
 1 & 2 Vict. c. 110, privileged from arrest upon mesne process. 
 But an attorney who had ceased to practise {g), or had neglected 
 to take out his certificate for one whole year, was not privileged 
 from arrest (Ji). Therefore it was held, that an attorney who 
 had not practised for several years might be arrested, though 
 after suing out the writ, and before the arrest, he had recom- 
 menced his practice and taken out his certificate (i). The 
 sheriff, however, could not take notice of the privilege of an 
 attorney ; nor was he bound to discharge him, even upon pro- 
 ducing his writ of privilege (/;), except where the arrest was by 
 
 (a) 4 Burr. 2017 ; 3 T. R. 79. making their return till an indemnity 
 
 {b) Fisher r. i?egrez, 2 Dowl. 279; is given." Per Lord Ellenborough, 
 
 see also S. C. 1 Dowi. 588 ; Novello C. J. Id. ibid. 
 
 V. Toogood, 1 B. & C..554; S. C. 2 (e) Seacomb v. Bowlney, 1 Wils. 
 
 D. & II. 833; Heathfield v. Chilton, 20. 
 
 4 Burr. 20 1 5. ( / ) Kedman's case, 1 Mod. 10 ; 2 
 
 (c) Sections. Salk. 544; 1 Wils. 298 ; 2 Keb. 555. 
 
 (d) Delvalle v. Plomer, 3 Camp. (^r) Brooke v. Bryant, 7 T. R. 25 ; 
 41. " This is one among many otiier 1 Bos. & Pul. 4. 
 
 questions which sheriffs, in tiie exe- (/i) Skirrow t. Tagg, 5 JM. & Sel. 
 
 culion of process, must determine at 281. 
 
 their peril. In cases of real difficulty, (i) Brooke v. Bryant, 7 T. R. 25. 
 
 they may call for an indemnity, and (fc) Crosley v. Shaw, 2 Bla. Rep. 
 
 the court will enlarge the time for 1085.
 
 ^"O SHERIFF S DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. vr. process issuing out of an inferior court, in which case it is said 
 
 — — that the officer should allow the writ of privilege instanter {l^. 
 
 And now it seems that an attorney about to quit England may, 
 under 1 & 2 Vict. c. 110, be arrested under a judge's order like 
 any other person (?«). 
 &^'."aTtemiin "^'^^ parties to a suit, and their witnesses, are, for the sake of 
 ihe court. public justice, protected from arrest in coming to, attending 
 upon, and returning from courts of justice (w); or, as it is usually 
 termed, eundo, morando, ct redeundo: and this privilege has been 
 holden to extend to all persons who have any relation to a cause, 
 and who attend in the course of that cause, though not com- 
 pelled by process ; such as bail (o), barristers on the circuit (p), 
 (but not when attending at petty sessions, or, as it seems, at the 
 quarter sessions, without a previous retainer (^jr),) attorneys also 
 on their way to, from, and during their attendance in a cause in 
 court (r), or before an arbitrator (s), witnesses attending before 
 an arbitrator under a reference at nisi prius (i), before commis- 
 sioners of bankrupt (u), before the court of insolvent debtors (a*), 
 all of whom have been holden to be privileged from arrest. Wit- 
 nesses attending a cause in inferior courts are in like manner pri- 
 vileged(2/) ; and by the Mutiny Act, the like privilege is given to 
 witnesses attending courts martial. This privilege is the privilege 
 of the court in which the cause is pending, and on application to 
 such court, the defendant will be discharged, although he may 
 have been arrested on process out of another court (s). But the 
 sheriff is not bound to notice this privilege, and therefore may^ 
 on a claim of such privilege, keep the defendant in safe custody 
 
 (0 2Bla. Rep.1087. N. S. 660. 
 
 (m) Thompson v. Moore, 1 Dowl. (s) Webb v, Taylor, 1 Dowl. & L. 
 
 N. S. 283; Flight v. Cook, 1 Dowl. 676. 
 
 & L. 714. (() Spence v. Stewart, 3 East, 89. 
 
 (n) Lightfoot v. Cameron, 2 Bla. See also 3 Bar. & Aid. 252 ; S. C. 1 
 
 Rep. 1113; 1 Vent. 11 ; 2 Kol. Abr. Chit. Rep. 679. And see Watson on 
 
 272 ; 1 H. Bla. 636 ; 1 Campb. 229 ; Awards, 78. 
 
 and see 11 East, 439 ; 3 Bar. & Aid. (u) Selby v. Hills, 1 Dowl. 257 ; 
 
 252. S. C. 8 Bing. 166; 7 Ves. 316; 1 
 
 (o) Meekins v. Smith, 1 H. B. 636 ; Rose, 265, n. 
 
 Rimmer ?;. Green, 1 M. & Sel. 638; Ci) Wittingham v. Matthews, 6 
 
 2 Rose, 23. Taunt. 356. 
 
 (p) 1 H. Bla. 637; see also New- (y) Com. Dig. Privilege (A) ; 2 
 
 ton V. Constable, 2 Q. B. 167, per Rol. Abr. 272; Wallers v. Rees, 4 
 
 Lord Denman, C. .T. Moore, 34. 
 
 (q) Newton V. Constable, nhisupra. (2) Walters v. Rees, 4 Moore, 34 ; 
 
 (?•) See Williams j;. Webb, 2 Dowl. Walker v. Webb, 3 Anstr. 941.
 
 ARREST, PRIVILEGE FROM. 139 
 
 until he is ordered to be discharged by the court(«). A person chap. vi. 
 
 is not however privileged during his return home from lawful ' 
 
 custody (b). The privilege, in general, enures euiido, morando, 
 et redeundo, and it is not essential that the party in going or 
 returning should go at full speed, or by the nearest way pos- 
 sible (c) ; thus, where a defendant, after the rising of the court, 
 went with his attorney and witnesses to dine at a tavern in 
 Palace Yard, and was arrested whilst at dinner, it was held that 
 his privilege redeundo had not expired (c?). So where the plain- 
 tiff, after a motion in the cause, in his way home first called at 
 his office to refresh himself and sort his papers, and after a 
 lapse of two hours left the office to proceed home, but on the 
 way went into a tailor's shop, where he was arrested, his pri- 
 vilege was allowed (e). If, however, there is any substantial 
 deviation (f) or unreasonable delay, even for want of means (g), 
 the privilege ceases, A man who has been in custody on a 
 criminal charge, and who is acquitted and discharged, has, it 
 seems, no privilege from arrest redeundo (h). 
 
 By the Bankrupt Act, 5 & 6 Vict. c. 122, s. 23, it is enacted, Bankrupts. 
 that any person adjudged bankrupt "shall be free from arrest 
 or imprisonment by any creditor in coming to surrender, and 
 after such surrender during the time by this act limited for such 
 surrender, and such further time as shall be allowed him for 
 finishing his examination, and for such time after finishing his 
 examination until his certificate be allowed and confirmed, as 
 the court authorized to act in the prosecution of the fiat shall 
 from time to time, by indorsement upon the summons of such 
 bankrupt, think fit to appoint, provided he was not in custody 
 at the time of such surrender ; and if such bankrupt shall be 
 arrested for debt or on any escape warrant in coming to sur- 
 render, or shall after his surrender be so arrested within the 
 time aforesaid, he shall, on producing his summons signed as 
 
 (a) Walters v. Rees, 4 Moore, 34 ; Dowl. N. S. 660; Luntley v. Natha- 
 Watson i;. Carroll, 4 M. & W. 592. niel, 2 Dowl. 51 ; Phillips v. Price, 
 
 (b) Anon. 1 Dowl. 157 ; Goodwin 1 D. & L. 1 10. 
 
 V. Lordon, 1 A. & E. 378. ( /) Smith v. Dickenson, 1 M. & 
 
 (o) See per Lord Abinger, C. B. in \V. 488. 
 
 Strong V. Dickenson, 1 M. & W. 491. (g) Spencer v. Newton, 1 N. & P. 
 
 (d) Lightfoot V. Cameron, 2 W. B. 818 ; 6 A. & E. 623, S. C. 
 
 1113. (h) Goodwin v. Lordon, 1 Ad. & 
 
 (e) Pitt V. Coombs, 5 B. & Adol. El. 378. 
 1078. See also Williams v. Webb, 2
 
 140 sheriff's duty on a bailable capias. 
 
 CHAP. VI. required by this act to the officer who shall arrest him, and 
 giving such officer a copy tl)ereof, be immediately discharged; 
 and if any officer shall detain any such bankrupt after he shall 
 have shown such summons to him, such officer shall forfeit to 
 such bankrupt, for his own use, the sum of 5/. for every day he 
 shall detain such bankrupt, to be recovered by action of debt in 
 any court of record at Westminster, in the name of such bank- 
 rupt, with full costs of suit(i); and it shall be lawful for the 
 court, at the time appointed for the last examination of the bank- 
 rupt, or any enlargement or adjournment thereof, to adjourn 
 such examination sme die, and in such case he shall be free from 
 arrest for such time, not exceeding three months, as such court 
 shall from time to time by indorsement upon the summons of 
 such bankrupt appoint, with like penalty upon any officer de- 
 taining such bankrupt after having been shown such summons." 
 And by the 42d section of the same act, a certificated bank- 
 rupt is privileged from arrest for any debt, claim, or demand 
 which was proveable under the fiat, and shall be discharged on 
 entering an appearance, and may plead in general that the cause 
 of action accrued before he became bankrupt. The decisions 
 on the above sections would be out of place here, as they do not 
 affect the sheriff, and are to be found in the treatises on bankrupt 
 law (A'). Nor does it belong to a treatise on the duty of the she- 
 riff, to enter upon the question what things are and what are not 
 proveable under the fiat, as it is not for the sheriff to decide 
 whether or not the defendant is privileged from arrest, the 
 sheriff being protected if he arrest the bankrupt. A certificated 
 bankrupt, or discharged insolvent, however, it has been held, is 
 not liable to be arrested on a subsequent promise to pay a debt 
 discharged by his bankruptcy or insolvency (/). 
 
 Besides and independently of the privilege conferred on the 
 bankrupt by statute, he has been held privileged (in the same 
 manner as parties, witnesses, &c. attending a cause) during 
 
 (i) It may be questionable whether Ry. 240 ; S. C. 1 Bar. & Cres. 116; 
 
 this action should be brought against Wilson v. Kemp, 3 M, & Sel. 595. 
 
 the sheiiff or the bailiff; from the See also 6 Taunt. 563; 2 Burr. 736 ; 
 
 wording of the act it would appear the By the 5 & 6 Vict. c. 122, s. 43, a 
 
 latter. See Sturney q. t. v. sheriff of bankrupt is not liable on a subsequent 
 
 Middlesex, 11 Kast, 25. promise 1o pay a debt barred by his 
 
 (k) Archbold's Bankrupt Law, by certificate, unless the promise is in 
 
 Flather, 10th edit. 318. writing. 
 
 (/) Peers V. Gadderer, 2 Dow. &
 
 ARREST, PRIVILEGE FROM. 141 
 
 attendance on proceedings before the commissioners, e. g. in chap. vi. 
 returning from the hearing of a petition for leave to surren- ^^^^' ^' 
 der(m), and in going to, staying at, and returning from a 
 meeting to declare a dividend which he attended at the verbal 
 request of the commissioners (?«). 
 
 In like manner, by the Insolvent Debtors' Act, 1 & 2 Vict, insolvents. 
 c. 110, s. 90, an insolvent discharged under that act is pro- 
 tected from arrest under the judgment entered up in pursuance 
 of the act, and also for any debt, money, or costs in respect of 
 which he is entitled to the benefit of the act, or any judgment, 
 decree, or order for payment of the same ; and a judge may, on 
 application, order the discharge of a prisoner arrested for such 
 debt, and with such costs as he shall think fit. 
 
 And by 5 & 6 Vict. c. IIG, and 7 & 8 Vict. c. 96, protection 
 may be granted by the Court of Bankruptcy to persons who 
 petition under the provisions of those acts. 
 
 Provisions to a similar effect are contained in the 7 & 8 Vict. 
 c. 90, for facilitating arrangements between debtors and cre- 
 ditors. 
 
 The sheriff, notwithstanding the defendant claims privilege 
 from arrest by his bankruptcy and certificate, or under a dis- 
 charge as an insolvent debtor, should not discharge him without 
 an indemnity, or by order of the Court, for otherwise he might 
 be driven to litigate with the plaintiff the question of the de- 
 fendant's privilege ; for the Court will not stay proceedings in 
 the event of an action brought against a sheriff for discharging 
 a certificated bankrupt arrested by him, without an order of a 
 judge (o). 
 
 No petty officer or seaman, marine or non-commissioned Scimen and 
 officer of marines, on board of any of his majesty's vessels, 
 and no soldiers (p), shall be holden to bail, or arrested on any 
 
 (m) Exp. Jackson, 15 Ves, 116. tend not merely to common soldiers 
 
 (n) Arding v. Flower, 3 Esp. 117; and Uoopers in the life guards, ike, 
 
 8 T. R. 534. See Selby v. Hills, 8 Bayley v. Jenner, 1 Stra.2, but alto 
 
 Bing, 166; 1 M. & Scott, 253, S. C; to non-commissioned and warrant offi- 
 
 "Willingham v. Matthews, 2 Marsh. 57. cers, as gunners, Johnson v. Lowth, 
 
 (o) Sherwood v, Henson, 4 Taunt. 1 Stra. 7 ; Serjeants and drummers, 
 
 631 ; see Tarlton v. Fisher, 2 Doug. Lloyd v. Woodall, 1 Wils. 216. For 
 
 671; Whitworth v. Clifton, 1 M. & a serjeant is a soldier with a halbert, 
 
 Rob. 531. and a drummer a soldier with a drum ; 
 
 (p) By the Annual Mutiny Act. Lloyd v. Woodall, 1 Bla. Rep. 30. 
 
 These acts have been construed to ex- These acts do not, however, extend to 
 
 soklitTs.
 
 1-1'2 sheriff's duty on a bailable capias. 
 
 CHAP. vr. process or execution whatsoever, contracted subsequently to 
 
 ''' his having entered the service ; nor for any debt under SOL 
 
 previously to his having so entered; and in case of any of the 
 above-mentioned persons being arrested, any of the judges of 
 the Court out of which the process or execution issued is em- 
 powered to discharge him. 
 
 And by the 44 Geo. 3, c. 13, ss. 1,4, if any petty officer or 
 seaman pay the debt for which he has been arrested, give a bail 
 bond, or be otherwise entitled to be discharged out of the cus- 
 tody, the sheriff or other oflicer in whose custody he shall be, 
 instead of discharging him, shall, under the penalty of 100/., 
 have him conveyed to the commander of one of his majesty's 
 ships, or some authorized commissioned officer, in order that 
 he may be kept to serve on board the fleet as before. On this 
 statute it was held, where a bailiff, having arrested a seaman, 
 discharged him on giving a bail-bond, that the sheriff was liable 
 to a qui tarn action for this penalty (r). 
 Writ of pro- The last privilege necessary to be noticed is, that the queen 
 
 lection. • -i . • - , 
 
 may privilege, by her writ of protection, any person in her ser- 
 vice from arrest, during a year and a day (s). But these writs 
 are never granted at this day ; even in Lord Coke's (^) time they 
 were almost totally disused. 
 Executors, Besides the privilege from arrest which the persons above- 
 
 mentioned have, there are many persons who by the practice of 
 the Courts, and by particular statutes, are not allowed to be holden 
 to bail, as executors and administrators for debts due in their 
 representative capacity, assignees of bankrupts, hundredors, 
 corporators, for demands on them in their representative cha- 
 racter ; the consideration of this subject, however, belongs not 
 to the duty of the office of sheriff, for he would not be punish- 
 able for making the arrest, if commanded so .to do ; and it is his 
 duty to obey the writ, as he is protected in so doing. Who 
 may or may not be holden to bail will be found discussed at 
 length in Mr. Tidd's and Mr. Archbold's books of Practice ; it 
 
 commissioned officers; Tidd's Prac. ward, 4 Taunt. 557. 
 
 202, 9th edit. ; Chit. Arch. 475. See (r) Sturney ?;. Smith, 11 East, 25. 
 
 further Flanders v. Nicholls, Barnes, (s) Burrodale ii. Lord Cutts, 3 Lev. 
 
 432 ; Bowler v. Owen, 2 T. R. 270 ; 332 ; Finch, L. 454. And see Sir T. 
 
 R. V. Archer, 1 Burr. 636. 637,446; Shirley's case. Hob. 115. 
 
 Rickman v. Studwick, 8 East, 105; (t) 1 Inst. 131. 
 
 Lord Raym. 1246; Bryan v. Wood- 
 
 &c,
 
 ARREST, WHEN AND HOW MADE. 143 
 
 is hoped that all that is necessarily connected on that head with chap vi. 
 the duty of sheriff will have been found in the foregoing pages. — _ "—L. 
 The Stat. 2 Will. 4, c. 39, s. 4, requires that so many copies Copy of writ 
 
 r ^ to be deliver- 
 
 of the capias, together with every memorandum or notice sub- ed to deiend- 
 
 •111 111-1 1 1 , ant on arrest. 
 
 scribed thereto, and all mdorsements thereon, as there may be 
 persons intended to be arrested thereon, shall be delivered to 
 the sheriff or other officer or person to whom the same may be 
 directed, or who may have the execution and return thereof, 
 and who shall upon or forthwith after the execution of such 
 process cause one such copy to be delivered to every person 
 upon whom such process shall be executed by him, and shall 
 indorse on such writ the true day of the execution thereof. 
 And a similar provision is introduced in the form of cajiias 
 given by the stat. 1 & 2 Vict. c. 110. Where the arrest took 
 place at nine o'clock in the morning, and the copy of the writ 
 was not delivered to the defendant until seven in the evening^ 
 it was held that the statute had not been complied with(t<). 
 The copy delivered must be a correct copy, and any variance 
 by which the meaning of the writ is altered will be fatal, and 
 will invalidate the arrest ; as if the form of action (x) or the 
 date of the writ be omitted (y), or if the copy of a writ be ad- 
 dressed to the sheriff instead of the sheriff* of London (z) ; but 
 a mere literal variance, not in any way affecting the sense of the 
 writ, would be immaterial ; as if the copy was " if se shall be 
 found, &c.," instead of " if she shall be found, &c." (a). The 
 omission to serve a true copy of the writ does not render the 
 arrest void, but merely irregular, and such irregularity may 
 be waived by the defendant's omitting to take advantage of it 
 within a reasonable time (b). If a defective copy of a capias is 
 delivered to the defendant, the court will presume that a defec- 
 tive copy was delivered to the sheriff; it will not presume that 
 
 (w) Shearman D. M'Knight, 5Dowl. Dowl. 319 ; Cooke v. Vaughan, 4 M. 
 
 572. & W. 69. 
 
 (i) Copley v. Medeiros, 7 Man. & (a) SuUon v. Burgess, 3 Dowl. 
 
 G. 426. 489. See also other instances of vari- 
 
 (y) Smarti). Johnstone, 3 M. & W. ances from the writ which have been 
 
 69. held immaterial, Pocock v. Mason, 1 
 
 (s) Nicol V. Boyne, 2 Dowl. 761 ; Bing. N. C. 245 ; Colston i;, Berens, 
 
 Moore v. Magan, 16 M. & W. 95. 3 Dowl. 253; Cooper v. Wheale, 4 
 
 See also other instances of variances Dowl. 281 ; Macdonald v. Morllock, 
 
 which have been held material, Smith 2 Dowl. & L. 963. 
 
 V. Pennell, 2 Dowl. 654; Street v. (b) Brashour v. Russell, 6 Dowl. 
 
 Carter, ib, 671 ; Smith v. Crump, 1 185.
 
 1 t4 SllEIllFf's DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. the slieriff was wrong by receiving a correct copy from the 
 s^cT-i- plaintiff, and serving a defective one (c). The court will not 
 permit an amendment in the copy served (d). 
 Day of arrest The 2 Will. 4, c. 39, s. 4, also requires the sheriff to indorse 
 on iiie writ, on the Writ the true day of the execution thereof; and by Reg. 
 Gen. M. T. 3 Will. 4, r. 4, it is ordered, that such indorsement 
 shall be made within six days at the latest after the execution 
 thereof, and that in default thereof the sheriff or other officer, 
 &c. shall be liable in a summary way to make such compensa- 
 tion for any damage which may result from his neglect, as the 
 court or a judge shall direct. And the day of the execution 
 ought to appear in the return. But an omission of it would 
 not, it seems, be ground for an attachment (e). The consequence 
 of the omission is, that the plaintiff may apply to the court to 
 compel the sheriff to amend his return, and pay such damages 
 as the plaintiff has sustained by the omission. The stat. 1 & 2 
 Vict. c. 110, does not in terms require this indorsement to be 
 made on a capias issued under the authority of that act, but it 
 seems to be necessary (/). And the capias commands the 
 sheriff to state the day of its execution in the return. 
 
 Section II. 
 
 Proceedings after the Arrest. 
 
 Sheriff's duly When a defendant is arrested, or in the custody of the sheriff, 
 
 soih" liHiis on mesne process, the sheriff must take care that he have him at 
 
 baHabieca-* the rctum of the writ, and should keep him in close custody, 
 
 P""' unless he deposit money in lieu of bail, or give a bail-bond with 
 
 sufficient sureties, or the plaintiff consent to his discharge. The 
 
 sheriff's duties and liabilities on these heads will be the subject 
 
 of this section. 
 
 Within what The defendant being in the custody of the sheriff on a bailable 
 
 arrest iherie capius, the sheriff is liable to a penalty of 50/. if he carry him 
 
 fendant must , , ,1 -.i^i- l ^ • 
 
 be conveyed to any tavem or other house without his consent, or to prison 
 
 to prison. 
 
 (c) Hodd V. Langridge, 5 Dowl. 16 M. & W. 95. 
 
 721. (e) I Chit. Arch. 534, &c. ; Rid- 
 
 (d) Byfield v. Street, 10 Bing. 27 ; ley v. Watson, 2 M. & Scott, 724. 
 
 2 Dowl. 73t', S, C; Rennie v. Bruce, (/) See Jervis's New Rules, 95. 
 
 2 Dowl,& L. 963; Moore v. Magan,
 
 PROCEEDINGS AFTER THE ARREST. 
 
 145 
 
 within twenty-four hours, unless he refuse to be carried in the chap vi, 
 meantime to some safe and convenient dwelhng-house, to be _ ^^^^' "' 
 named by him, not being his own house («). And it is the 
 duty of tlie officer making the arrest, and in whose custody the 
 defendant is, to ask him to nominate some safe and convenient 
 dweHing-house to which he may be carried ; and the taking of 
 liim to prison within twenty-four hours cannot be justified, 
 unless he has refused to nominate such house ; and evidence 
 that the defendant did not express any objection to being carried 
 
 (<i) 32 Geo. 2, c. 28. I subjoin 
 the act iiself. as it may be desiiable 
 for the purpose of reference : — " No 
 sheriff, under-sheriff, bailiff, serjeant 
 at mace, or other officer or minister, 
 shall convey, or carry, or cause to be 
 conveyed or carried, any person or 
 peisons by him or them arrested, or 
 being in his or their custody , by virtue 
 or colour of any action, suit, process, 
 or aUachment, to any tavern, ale- 
 house, or other public victualling or 
 drinking iiousc, 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 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 shall call for of his own 
 free accord ; nor shall cause or pro- 
 cuie him to call or pay for any such 
 liquor or things, except what he shall 
 particularly and fieely ask for; nor 
 shall demand, take, or receive, or 
 cause to be demanded, taken, or re- 
 ceived, 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 ap- 
 pearance or bail, as the case shall re- 
 quire, or agreed with the person or 
 persons at whose suit or prosecuiion 
 he shall be taken or arrested, or until 
 he shall be sent to some proper gaol 
 belonging to the county, riding, divi- 
 sion, 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 per- 
 sons so F.rrested or in custody out of 
 gaol or prison." 
 
 Sect. 2. " No sheriff, &c. shall 
 catry any such person to any gaol or 
 prison within twenty-four hours from 
 the time of such airest, unless such 
 person or persons so arrested shall re- 
 fuse to be carried to some safe and 
 convenient dwelling-house of his own 
 nomination or appointment, witlim 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 
 made out of any city, borough, corpo- 
 ration, or market town, so as such 
 dwelling-house be not the house of 
 the person so arrested, and be wuhin 
 the city, &c. in which the person un- 
 der arrest was arrested ; and then 
 and in any such case, it shall be lav.'- 
 ful 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 afore- 
 said, to such gaol or prison as he may 
 be sent to by virtue of the action, 
 writ, or process against him ; and that 
 no sl'.enff, &c. shall take or leceive 
 any ether or greater sum or sums for 
 one or more night's lodging, or for a 
 day's diet, or other expenses, of any 
 peison or persons under arrest on any 
 writ, action, attachment, or process. 
 Other than what shall be allo\red as 
 reasonable in such cases by some 
 order or orders made by justices of the 
 peace in pursuance of the said act."
 
 14fi sheriff's duty on a bailable capias. 
 
 CHAP. VI. 
 
 si.cr. II. 
 
 to prison will not alone be sufficient evidence of his consent (6). 
 The sheriff" has a right to make any reasonable objection to the 
 house noiTiinaled by the defendiint, if he thinks it is not a safe 
 and convenient house ; and on this ground he may reasonably 
 object to his being carried to his attorney's house (c). A request 
 to be taken to the house of a person, merely for the purpose of 
 consulting him, is not a nomination of a house within the mean- 
 ing of the statute; for the sheriff" is not bound to take a prisoner 
 to any house he may desire to go to for any purpose whatever, 
 but only to some safe and convenient dwelling-house for the 
 purpose of his remaining there the twenty-four hours (fZ). 
 Where the defendant, while the officer was conveying him to 
 gaol illegally, within twenty-four hours after the arrest, con- 
 sented to go to a tavern to execute an agreement with his cre- 
 ditor to obtain his discharge, it was held that this was not a 
 consent to be carried there within the meaning of the statute (e). 
 Generally speaking, where the defendant does not give a bail- 
 bond, it is the duty of the sheriff" to lodge the defendant in the 
 county gaol on the return of the writ ; but he cannot be taken 
 there until the twenty-four hours have expired ; and if the 
 defendant be kept in a lock-up house or other place, the sheriff" 
 keeps him at his peril ; but the sheriff" is not liable to an action 
 on the case as for an escape, for keeping a defendant arrested by 
 him in custody after the return of the writ, without taking him 
 to the county gaol, unless the jury find that the plaintiff" has been 
 delayed or prejudiced in his suit(y"}; and of course it can be no 
 escape to keep the defendant in a lock-up house from the arrest 
 until the return of the writ(g). 
 Where (le- If the defendant is ill, and unable to be removed, the sheriff* 
 
 [n"i!f be're'."" should nevertheless an'est him, and detain him in custody ; and 
 if he continues in the same state up to the time of the return of 
 the writ, the sheriff" should return '■Hanguidus," which would be 
 a sufficient excuse for not having him in co'.wtiji). 
 
 (h) Dewliirsi y. Pearson, 1 Dowl, Taunt. 608; Brandliriif v. Kent, 1 
 
 664; Simpson i'. Renlon, 5 13. & T. R. 60 ; Williams i'. Moslyn, 4 M. 
 
 Atlol. 35. & W. 145. 
 
 (c) Silk V. Huraphery, 4 A. &: E. (g) Houldltch v. Birch, 4 Taunt. 
 959. 603. 
 
 (d) Ibid. (h) See Perkins y.aieacher, 1 Dowl. 
 
 (e) Barshum v. Bullock, 10 Ad. & 21 ; Cavenagh v. Colleit, 4 B. & Aid, 
 E. 23. 27 ; Baker i'. Davenport, 8 Dowl. & 
 
 (/) Planck 1-. Anderson, 5 T. 11. R. 606; Stevens r. Jackson, 6 Taunt. 
 37; see also Iloulditch r. Birch, 4 106. 
 
 mos'ed.
 
 PROCEEDINGS AFTER THE ARREST. 147 
 
 Whilst the defendant is in custody, he should be allowed, at chap. vi. 
 his free will and pleasure, to send for and have at all seasonable ^^^^' "* 
 
 times any beer, ale, or other food, beddino;, linen, or other neces- Regniaiions 
 
 . ■' . . . . reopening ilie 
 
 sary things, without paying anything therefor to the sheriff. Sec, irtaim.iii of 
 
 in whose custody he is (i) ; and also, to prevent extortion, the resieii by ihe 
 
 gaolers are not allowed to take any greater fees than are settled, 
 
 enrolled, and registered (A;), according to the directions of that 
 
 act. And the court out of which the process issues, in term, or 
 
 a judge in vacation, or at the assizes, have full power to hear, 
 
 examine, and redress any abuses in any gaol or prison, whereof 
 
 any prisoner shall present his complaint (/). Tiie statute also 
 
 enacts, " that if any sheriff, under-sheriff, bailiff of any liberty, 
 
 bailiff, Serjeant at mace, gaoler, and other officer and person as 
 
 aforesaid, sliall offend in anywise against the said act, he shall 
 
 for every such offence (over and above such other penalties or 
 
 punishments as he may be liable to) forfeit and pay to the party 
 
 thereby grieved the sum of 50/,, to be recovered with treble costs 
 
 of suit, by action of debt, bill, plaint, or information, in any of 
 
 his majesty's courts of record at Westminster (m)." In order 
 
 to recover against a sheriff on this statute, it is incumbent on 
 
 the plaintiff' to prove the table regulating the fees to be allowed, 
 
 for this statute superseded the stat. 23 Hen, 6, c. 9, as to fees 
 
 to be allowed on arrests on mesne process (n). It was ruled at 
 
 nisi prius, by Lord Kenyon, that a sheriff was not liable to an 
 
 action for extortion committed by an officer not named in the 
 
 warrant, to whose lock-up house the defendant had been brought 
 
 on being arrested (o). 
 
 At common law, the sheriff was not justified in discharging Depositor 
 a defendant arrested by him on mesne process, even upon receiv- |he"sh'!^,-7tf'in 
 ing from him the sum sworn to and costs (y;); and as it often J,',';^ paj'',i'e|,t 
 happened that persons, who were able to deposit a sum of money '''^^'eof into 
 equal to the sum sworn to and costs, were not able to find bail 
 for their appearance, for this reason it was first provided by 
 the stat. 13 Geo. 3, c. 46, s, 2, that any persons arrested upon 
 
 (0 32 Geo. 2, e. 2B, s, 4. by 1 Vict. c. 55. As to recovering on 
 
 (k) Ihid. s. 12. the count for money fiad and received, 
 
 (0 Ibid. s. 11; Ex parte Evans, see Lovell v. Simpson, 3 Esp, 153; 
 
 3 Bos, & Pul.88. ■ 2 N, R. 60. 
 
 (ot) Uid. s. 12. (()) George v. Perring, 4 Esp. 63, 
 
 (?i) Martin v. Slade, 2 N. K. 59 ; (/;) Slackford v. Austen, 14 East, 
 
 Jaques v. Whitcomb, 1 Esp. 361. 468;' see also Wooden v. Moxon, 
 
 The 23 Hen. 6, c. 9, is now repealed 6 Taunt. 490. 
 
 L 2
 
 M8 sheriff's duty on a bailable capias. 
 
 SFOT. 11. 
 
 niAP. VI. mesne process, witl)in England and Ireland, in lieu of giving a 
 bail-bond, may deposit with the sheriff, under-sheriff, or other 
 ollicers, the sum indorsed upon the writ, together with lOl. to 
 ensure the costs which may have accrued to the time of the 
 return of the writ, and also such sum as may have been paid for 
 tlie king's fine, where the action is by original, and thereupon 
 he shall be discharged ; and that the sheriff shall, at or before 
 the return of the writ, pay into court the sum so deposited with 
 him ; and if bail be afterwards duly put in and perfected, the 
 defendant may obtain the money out upon motion. By a 
 subsequent act, 7 & 8 Geo. 4, c. 71, s. 2, after reciting the 43 
 Geo. 3, c. 46, s. 2, and that it was expedient to extend its pro- 
 visions, it, was enacted, " that in all cases in which any defend- 
 ant shall have been discharged from arrest upon making such 
 deposit as is required by the said recited act, and the sum so 
 deposited shall have been paid into court, it shall be lawful for 
 such defendant, instead of putting in and perfecting special bail 
 in the action according to the course and practice of the court, 
 to allow the sum so deposited with the sheriff, and by him paid 
 into court as aforesaid, together with the additional sum of 10/., 
 to be paid into court by such defendant as a further security for 
 the costs of the action, to remain in the court to abide the event 
 of the suit ; and in all cases where the defendant shall have been 
 arrested, and shall have given bail to the sheriff, or shall have 
 been arrested and remain in custody, it shall be lawful for such 
 last-mentioned defendant, instead of putting in and perfecting 
 special bail, to deposit and pay into the said court the sum in- 
 dorsed upon the writ, together with the amount of the king's 
 fine, if any, upon the original writ, and the further sum of 20/, 
 as a security for the costs of the action, there to remain to abide 
 the event of the suit ; and thereupon the said defendant may 
 and lie is hereby required to enter a common appearance, or file 
 common bail in the action, within such time as he would have 
 been required to have put in and perfected special bail in the 
 action according to the course of the said court, or in default 
 thereof the plaintiff in the action is hereby empowered to enter 
 such common appearance or file common bail for the said de- 
 fendant, and the cause may proceed as if the defendant had put 
 in and perfected special bail; and in case judgment in the said 
 action shall be given for the plaintiff, he shall be entitled, by
 
 PROCEEDINGS AFTER THE ARREST. 149 
 
 order of the court, upon motion made for that purpose, to re- chap. vi. 
 ceive the money so remaining in, or so deposited or paid into — 1— ! — 1_ 
 the court as aforesaid, or so much thereof as will be sufficient to 
 satisfy the sum recovered by the judgment, and the costs of the 
 application ; and if judgment be given in the said action for the 
 defendant, or the plaintiff discontinue his suit, or be otherwise 
 barred, the said money so deposited and paid into court, or so 
 much thereof as shall remain, shall, by order of the court, upon 
 motion to be made for that purpose, be repaid to such defend- 
 ant." Section 3 of the same act enacted, " that it shall and 
 may be lawfid for the said defendant who hath made his election 
 to make such deposit and payment as aforesaid, at any time in 
 the progress of the cause, before issue joined in law or fact, 
 or final or interlocutory judgment signed, to receive the same 
 out of court, by order of the said court, upon putting in and 
 perfecting special bail in the cause, and payment of such costs 
 to the plaintiff as the said court shall direct." And section 4 
 provides also, " that it shall and may be lawful for any defend- 
 ant who shall have put in and perfected special bail in any cause, 
 upon motion to the court in which the action is brought, if the 
 court shall so think fit, to deposit and pay into court the sum . 
 which would have been deposited and paid in case the defendant 
 had originally elected to do so, together with such further sum 
 to answer the costs as the court may direct, to abide the event 
 of the said suit, and to be disposed of in manner aforesaid, and 
 thereupon it shall be lawful for the court to direct a common 
 appearance to be entered, or common bail to be filed, for the 
 defendant, and an cxoneretur to be entered upon the bail-piece 
 in the said cause." 
 
 Finally, when the stat. 1 & 2 Vict. c. 110, abolished the ge- 
 neral power of arrest on mesne process, but gave the collateral 
 power of arrest in certain cases, under a judge's order made 
 upon affidavit that the defendant was about to quit England, it 
 provided, by sect. 4, " that such defendant, when so arrested, 
 shall remain in custody until he shall have given a bail-bond to 
 the sheriff, or shall have made deposit of the sum indorsed on 
 such writ of capias, together with 10/. for costs, according to the 
 present practice of the said superior courts ; and all proceedings 
 as to the putting in and perfecting special bail, or making de- 
 posit and payment of money into court instead of putting in and
 
 150 sheriff's lutv on a bailable capias. 
 
 CHAP. VI. perfecting special bail, shall be according to the like practice of 
 
 SECT. II. ^1 . , . ^ , , . , 
 
 the said superior courts, or as near thereto as the circumstances 
 
 of the case will permit (;■)." 
 
 Money paid to an officer on an arrest is presunned to have 
 been paid in lieu of bail under the authority of these statutes, 
 unless a discharge, or an acknowledgment in writing for the 
 debt and costs be given to the defendant (s). The sheriff is not 
 entitled to any poundage or fees deducted from money so de- 
 posited with him, or paid by him into court (<). 
 
 Where the sheriff pays into court, in pursuance of the statute, 
 the money deposited with him in lieu of bail, the defendant may 
 afterwards, on putting in and perfecting bail in due time(tj), or 
 on rendering in discharge of his bail (x), obtain the money out 
 of court upon motion, whether deposited by himself, or by a 
 friend on his behalf (?/). On the other hand, if bail be not duly 
 put in and perfected, and the defendant be not rendered, then, by 
 order of the court, upon motion, the money so deposited and paid 
 into court may be taken out by the plaintifl', and that, since 1 & 
 2 Vict. c. 110, without waiting for the final determination of the 
 suit(s;). Where, however, a defendant who was arrested by a 
 wrong name deposited money in lieu of bail, without prejudice, 
 the court refused to allow the plaintiff to take it out on the de- 
 fendant's failing to perfect bail (a). And where, the defendant 
 having paid the debt and lOl. for costs to the sheriff on his ar- 
 rest, a bond fide correspondence commenced for the purpose of 
 settling the action, which did not terminate until after the day 
 for perfecting special bail, and on its termination the defendant 
 
 (r) See Scherwinski v. Peronnet, Chit. Rep. 143 ; Hill v. Ching, 7 
 
 6 ]M. & \V. 90 ; 8 Dowl. 229. S. C. Moore, 432 ; 1 Bing. 103, S. C. 
 
 (4) Wain V. Bradbury, 1 Smith's {y) See Nunn i-. Powell, 1 Smith's 
 
 Rep. 127. Rep. 13; Edelslen U.Adams, 2 Moore, 
 
 (0 Stewart v. Bracebridge, 2 B. 610; 8 Taunt. 557, S. C; Bull v. 
 
 & Aid. 770; 1 Chit. Rep. 529, S. C; Turner, 1 M. & W. 47 ; Douglass r. 
 
 Haines v. Nairn, 2 Dowl. 43. Stanbrough, 3 Ad. & til. 316. 
 
 («) Green v. Glasscock, 1 Bing. (:) Tuton v. Gale, 1 Dowl. N. S. 
 
 N, C. 516; 1 Scott, 402, S. C. ; 383; see Rowe v. Sofllv, 6 Bing. 
 
 Young V. Mahby, 3 Dowl. 604; 634 ; 4 Moo. & P. 464, S.'C; John- 
 
 Geach ?;. Coppin, id. 74; see New- son v. Wall, 4 Dowl. 315; Hews 1;. 
 
 man I'. Hodgson, 1 B. & Add. 422; Pyke, 2 C. & J. 359; Hubbard v. 
 
 Stultz V. Heneage, 4 M, & Scott, 472 ; Wilkinson, 8 B. & C. 496 ; Reynolds 
 
 Ball V. Stafford, 2 Scott, 426. v. Wedd, 6 Dowl. 728. 
 
 (a) Chadwick v. Battve, 3 M. & (a) Cadby v. Parsons, 5 Taunt. 
 
 Sel. 283 ; Harford v. Hariis, 4 Taunt. 623. 
 669. See also Gould v. Berry, 1
 
 THE BAIL-BOND. 151 
 
 paid in the additional 10^. required by the 7 & 8 Geo. 4, c. 71, chap. vi. 
 the plaintiff was not allowed to take the money out of court (6). ^'^^^- "' 
 
 It is not necessary, for the purposes of this work, to enter 
 minutely into the details of the practice relating to the putting 
 in and perfecting bail, and the payment out of court of money 
 deposited in lieu of bail; it is fully stated in the books of prac- 
 tice, and in the authorities referred to in the preceding notes. 
 
 Before the statute of 23 Hen. 6, c. i), the sheriff was only Bail-bond. 
 obliged to bail a defendant in his custody on mesne process, when 
 he sued out a writ of mainprize ; thougli the sheriff might take 
 a security for releasing a defendant out of his custody if he 
 pleased (c). To remedy the extortion and oppression necessarily 
 consequent on such discretion, that statute was passed, the en- 
 actment whereof is twofold ; jirst, as to the persons to be let to 
 bail, with respect to whom it is enacted, that " sheriffs, &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 main- 
 prize, to keep their days in such place as the said writs, bills, or 
 warrants shall require ; persons being in their ward by condem- 
 nation, execution, capias utlagatum, surety of the peace, or by 
 special commandment of any justice, and vagabonds refusing to 
 serve according to the statute of labourers, only excepted (tZ)." 
 
 This part of the statute is obligatory upon the sheriff. And In what cases 
 
 ° .,.„, Ihesheriffis 
 
 therefore if a bail-bond be tendered to under-sheriff or bainff, obUgrd lo 
 
 discharge a 
 deleiiflant on 
 (ft) Straftbrd .Love, 3 Dowl. 593. Ikngougli i'. Rossiter, 4 T. R. 505, a bail- bond. 
 
 (c) Bac. ALr. tit. Slieriff (O) ; in K. B. ; affirmed in Exchequer 
 Dalt. Sher. 356; Fitz. N. B. 251; Chamber, 2 H. Bl. 418. The sheriff 
 Plowd. G7. is not liable to an action for not tak- 
 
 (d) This was long considered to be ing a bail-bond on an aUacliment out 
 a private, or as said by IMontague (in of Chancery; Studd v. Acton, 1 H. Bl. 
 Plowden, 67) a private general act, 468. Nor is the sheriff prohibited 
 but it is now holden to be a public from so doing by the statute; but a 
 act, and need not be specially pleaded; bail-bond taken on an attachment is 
 Samuel v. Evans, 2 T. H. 569. See 2;ood at the common law; fllorris v. 
 also 15 East, 323. A sheriff has no Hayward, 2 iMarsh. 280; 6 Taunt, 
 authority, either under this statute or 569, S. C. ; Rex v. Uawes, 1 Lord 
 at common law, to fake a bond for the Raym. 722; 2 Salk 608, S. C. ; 
 appearance of persons anested by him Lewi*: v. Morland, 2 Bar. & Aid. 56; 
 under process issuing upon an indict- Sed vide 'i Pr\ce, 23; Com. Rep. 264; 
 menl at the quarter sessions for a 2 Blac. Rep. 955; 2 Vent. 234, 238; 
 misdeii eanor; but can only take a 2 Sir. 479; Cro. Car. 309; 3 Leon, 
 recognizance for their appearance; 208.
 
 152 sheriff's duty on a bailable capias. 
 
 cfiAP. VI. with sufficient sureties, and the under-sheriff refuse to discharge 
 ^^^'^' "' the defendant out of his custody, he is liable to an action on the 
 case (e). For a refusal by the bailiff to discharge a defendant 
 out of custody, on a tender to him of a bail-bond with sufficient 
 sureties, the sheriff, and not the bailiff, is liable to an action (/ ). 
 But in order to maintain such action, it must be alleged and 
 proved that the sureties offered had sufficient within the county 
 where the arrest was made (g) ; thus a declaration against the 
 .sheriffs of London for not discharging the defendant on bail, in 
 which it was alleged that the sureties tendered had sufficient 
 " within the city of London and county of Middlesex," was held 
 bad on demurrer, for it should have been alleged that they had 
 sufficient in the city of London (A). But the statute neither 
 prescribes any particular number of sureties, nor that each should 
 be worth any particular sum (i) ; and therefore where a bond 
 was tendered with five sureties, three of whom were proved 
 to be worth more than the penalty in the bond, it was held 
 that the sheriff was liable to an action for not discharging the 
 defendant out of his custody (k), for if three were sufficient, it 
 was quite immaterial what the others had. Although a sheriff 
 is not obliged to take a bond with less than two sureties, 
 yet a bond taken with only one surety is good(/); for this 
 clause, which requires reasonable sureties, was introduced for 
 the benefit of the sheriff; for the same reason it was resolved, 
 that the bond was good, although the sureties had not sufficient, 
 or did not reside within the county (tw), as the number or suffi- 
 
 (e) Salmon ti. Peicival, do. Car. Drury's case, cit. 10 Rep. 100 b; but 
 
 196; Sir W. Jones, 226, S. C. ; where the sherifi' has taken only one 
 
 Smith V. Hall, 2 Mod. 31 ; 2 Vent. surety, the court will not set aside an 
 
 96. attaclimenl legularly obtained against 
 
 (/) Per Noith, C. J., 2 Mod. 32. tlie sheriff tor not bringing in the body; 
 
 (g) Lovell V. Sheriffs of London, Rex u. Sherilis of London, 2 Bing. 
 
 15 East, 320. And in such action 227 ; 9 Moore, 422, S. C. ; Reg. v. 
 
 the plaintifF IS entitled to costs, under Sheriff of Middlesex, 7 Dowl. 313. 
 
 the Statute of Gloster; C.'resswell v. But it will be otherwise if the appli- 
 
 Houghton, 6 T. R. 355. cofion is made at the instance of the 
 
 (h) Id. ibid. bail, R. v. Sheiill of Middlesex, 2 
 
 (i) Cro. Jac. 286. Dowl. 140; or if the attachment has 
 
 {k) Matson v. Booth, 5 Maule & been obtained for not returning the 
 
 Sel. 223. Qiiere, would the sheriff writ, K. v. Sheriff of Surrey, 2 C. M. 
 
 be liable if the aggregate amount of & K. 698. 
 
 tlie property of the whole was suffi- (m) Cotton v. Wale, Cro. Eliz. 862 ; 
 
 cient? Llackburn v, Michelbourn, Cro, Eliz. 
 
 (/) Clyftoni;. Web, Cro. Eliz. 808; 852. 
 Cotton V. Wale, ib. 862; Sir W.
 
 THE BAIL-BOND. 153 
 
 ciency of the bail is not traversable in an action on a bail- f iiap. vr. 
 bond(n). ^!^^"V_ 
 
 The sheriff" may take a bail-bond from the defendant without When to be 
 arresting him, for the words in the statute are sufficiently com- 
 prehensive to apply to persons who have not been arrested, and 
 it would be attended with mischievous consequences to hold 
 bail-bonds to be illegal, taken civilly, without exposing the party 
 to an arrest (o). Indeed, it has been holden that a bail-bond 
 taken after the writ was issued, but before the delivery thereof 
 to the sheriff, Avas good ( p). A bail-bond taken after the time 
 limited for putting in special bail is bad(</), for the condition 
 can only be for the defendant to put in bail according to the 
 exigency of the writ ; consequently the bond should always be 
 executed before or on the day limited for putting in special 
 bail(r). A bail-bond executed in blank, before the condition is 
 filled up, is void (s). 
 
 By the second branch of this statute, which prescribes the The form of 
 
 ■, (, p , . , , . . 1 1 '''* aecnri(y. 
 
 nature and torm or the security to be taken, it is enacted, " that 
 no sheriff, &c., shall take any obligation for any cause aforesaid, 
 or by colour of their office, but only to themselves, of any per- 
 son, nor by any person, who shall be in their ward in course of 
 law, but by name of their office, and upon condition written, 
 that the prisoners shall appear at the day and place contained in 
 the writ, bill, or warrant ; and if any sheriff, &c. take any obli- 
 gation in other form, by colour of their office, it shall be void." 
 The security must be by bond or ohligation under seal {t) ; 
 therefore an agreement in writing, made by a third person with 
 the sheriff's officer, to put in good bail for the defendant at the 
 return of the writ, or surrender his body to the officer, or pay 
 the debt and costs (m), has been holden void by the statute above 
 mentioned, and an action will not lie on such agreement. And 
 the courts will not grant an attachment against an attorney, on 
 
 (»0 Bentley v. Hore, 1 Lev. 86; 569; Thompson t). Rock, 4 M. & Se!. 
 
 1 Sid. 96, S. C. 338; Courtney v. Phillips, 1 Sid. 300. 
 
 (o) VVatkins v. Parry, Str. 444; (r) Call r. Theiwell, IC. M.&R. 
 
 flaley v. Fiizgerald, ?7;. 643. See 780; 3 Dowl. 443, 
 
 Taylor v. Clow, 1 B. & Add. 223. (s) Pcvvell i;. Duff, 3 Camp. 181 ; 
 
 Sed vide Noy, 43. see also Holden v. Raphael, 4 Ad. & 
 
 (p) Say. Rep. 116; Bramfield v. E. 228 ; 5 N. & M. 655, S. C. 
 
 Penhay, lKeb.554; 1 Sid. 151. But (t) 10 Rep. 101. 
 
 see Hall i'. Roche, 8 T. R. 187. («) Roger u. Reeves, 1 T.R. 418; 
 
 (q) Pullien v. Benson, I Lord Lewis d. Knight, 8 Bing. 271 ; 1 M. 
 
 Raym. 349 ; Samuel v. Evans, 2 I". R . & Scott. 353, S. C.
 
 154- sheriff's duty ox a BAirABLB CAPIAS. 
 
 cijAP. VI. his undertaking to the officer to give a bail-bond to the sheriff 
 ^'^^'"' in due time(a'), or for the appearance of the defendant(?/). But 
 the statute only makes void securities to the sheriff or his officers 
 in other form than that prescribed by the statute, but does not 
 render void agreements or undertakings to the party himself, for 
 the appearance of the defendant(s). 
 Stamp. The bail-bond was formerly required to be on a half-crown 
 
 stamp, but now a bail-bond no longer requires to be stamped (a). 
 The amount By the Statute of 12 Geo. 1, c. 29, s. 2, it is enacted, " that the 
 bond llloM sheriff or other officer to whom the writ or process is directed 
 shall take bail for no more than the sum indorsed, on the back 
 of such writ." Notwithstanding this statute, it is usual always 
 to take the bond in double the sum indorsed on the back of the 
 writ. The statute of 12 Geo. 1, c. 20, s. 2, is only directory, 
 and a bail-bond taken for more than the sum indorsed on the 
 writ, or taken where there is no affidavit of debt, is not therefore 
 void (6). If the bail-bond be taken for a larger sum than the 
 sum indorsed on the writ, the bail are liable to satisfy the whole 
 debt due to the plaintiff, not exceeding the penalty of the 
 bond(c). And where a bail-bond was taken for a larger amount 
 than the sum sworn to, it was ordered to be set aside (d). 
 To whom With regard to the form of the bond, in the first place, it is 
 
 oniiVcon-' required that it be made to the sheriff by his name of office. And 
 if, therefore, the bail-bond be made to the sheriff's officer (e;, or 
 to the sheriff, but not by his name of office (/), it is void. In 
 the next place, the condition of the bond must be for the de- 
 fendant to put in special bail according to the exigency of the 
 writ, and for no other purpose ; therefore, if the bond be single 
 without any condition at all, or with an impossible condition, or 
 the condition be not for the defendant's appearance, or be for 
 
 (x) Sedgworth v. Spicer, 4 East, Prac. Reg. C. B. 67 ; Walker i;. Car- 
 
 568; Lewis v. Knight, s»p. ter, 2 Bla. Rep. 816. 
 
 (iv) Fuller v. Prest, 7 T. R. 109. (c) Mitchell v. Gibbons, 1 H. Bla. 
 
 (z) Hall V. Carter, 2 i\lod. 304; 76. 
 
 Milward v. Clerk, Cro. Eliz. 190; (d) Cock v. Cooper, 7 Ad. & E. 
 
 Benson v. French, 1 Lev. 98; 1 Sid. 605. 
 
 132, S. C. Per BulJer, J., 1 T. R. (e) Rogers ^^ Reeves, 1 T.R.418; 
 
 422. And see Rushant v, Wate, T. Sedgworth v. Spicer, 4 East, 568. 
 
 Jones, 139. (/)Giiybon u.Whitetost, Cro. Eliz. 
 
 (a) 5 Geo. 4, c. 41. 800; Kiikebridgo v. Wilion, 2 Lev. 
 
 {h) Whiskard v. Wilder, 1 Burr. 123; Cudwell r. Dunkin, T.Jones, 
 
 331 ; Nordeni;. Horsley,2 Wils. 69; 137; Dyer, llDa, 119 b, 120 a j 
 
 Cooke's Cas. Prac. 43 ; Fortes. 336; Symes v. Oakes, 2 Stra. 893. 
 
 ditiun.
 
 THE BAIL-BOND. 155 
 
 that and some thing else, it is void by the statute (^). But if chap, vi, 
 the bond comply with these requisite formalities, the courts will ^'^^^' "' 
 not avoid it for any informality in the descripton of the court, 
 or cause of action, provided they are described with common 
 certainty (h). Thus, where (before the 2 Will. 4, c. 39) the 
 writ was for the defendant to appear, &c. " wheresoever our 
 lord the king shall then be in England," a bail-bond conditioned 
 to appear at Westminster was holden good; and in a similar case, 
 where the condition of the bond omitted the words " where- 
 soever, &c." the bond was holden good(«) ; and a bond condi- 
 tioned to appear " in the office of Pleas in the Court of Exche- 
 quer," was held sufficient, although the writ was to appear 
 before the " Barons," &c. (k). So where the bail-bond did not 
 follow the writ in stating that the defendant was to appear " ac- 
 cording to the custom of the court," the bond was held good (/). 
 But a bail-bond taken on a capias out of C. P. was held bad, 
 where the condition was to appear before " the h'mg at West- 
 minster (w)," for that must be intended the Court of King's 
 Bench ; a bail-bond, taken on process out of K. B., conditioned 
 to appear in his majesty s Court of the Bench at Westminster (n), 
 was held bad, for that must be intended the Court of Common 
 Pleas. A bond conditioned for the appearance of the defendant 
 in eight days after the date, the arrest having been made on the 
 same day, was held sufficient (o). As to the description of the 
 cause of action, the following points have been determined. 
 Where the writ was to answer the plaintiff in a plea of debt for 
 three hundred and twenty pounds, or in a plea of trespass, with an 
 ac etiam in debt, and the condition was to answer the plaintiff in 
 
 (^) Giahamt).Crashaw,3Lev. 74; (i) Jones v. Sturdy, 9 East, 55. 
 
 Dyer, 1 19, 120 ; 2 Saund. 69 b, n. And see Kirkebridge v. Curwen, T. 
 
 If the objection to the bail bond ap- Jones, 46 ; 2 Lev. 180, S. C. ; Lawson 
 
 pear on liie face of the declaration, or v. Haddock, 2 Vent. 237, 
 upon oyer, the defendant may demur, (k) Shutlleworth v. Pilkington, 2 
 
 but otherwise lie should plead such Stra. 1155. 
 facts as show the bond to be void under (/) Case c\\. id. ibid. 
 
 the statute ; and when, by pleading or (?«) Renalds v. Smith, 6 Taunt, 
 
 otherwise, this appears on any part of 551 ; 2 Marsh. 258, S. C. 
 the record, the defendant may move (n) Impey i'. Taylor, 3 M. & Sel. 
 
 in arrest of juds^ment ; Samuel v. 166 ; see also Mill y. PoUon, 1 Moore, 
 
 Kv:ui, 2 T. R. 5R9 ; 2 Saund. 59. 19 ; 7 Taunt. 271, S. C. 
 
 (h) See Large i>. Atwood, I Dowl. (»; Evans r. Mosely, 2 C. & M. 
 
 & Ky. 531 ; Atkinson v. Saundersoii, 490; 2 Dowl. 364, S. C. 
 4 Dougl. 254.
 
 156 SHERlli'P's DUTY ON A HAIf-ABLK CAi'IAS. 
 
 CHAP. VI. 
 SECT. II. 
 
 a plea of debt generally {p), or without mentioning the plea at 
 all, the variances were liolden immaterial (</). And so where the 
 writ was to answer the plaintiff in " a pica of trespass on the case 
 upon promises, to the damago, &c." and the condition of the bond 
 was to answer the plaintiff in a ^' plea of trespass, &c.," the court 
 held the bail-bond good, for the statute does not recpiire that 
 the bond should disclose the nature of the action (r). The 
 omission of the defendant's name in the recital and operative 
 part of tiie condition was held to vitiate the bond (s). 
 How pre- The sheriff's officer, in whose custody the defendant is, or 
 
 &c. ' ' by whom he has been arrested, upon being furnished with the 
 names of the defendant's sureties, and having satisfied himself of 
 their sufficiency, will prepare the bond immediately. It is the 
 sheriff's duty to prepare it ; and therefore, to an action for 
 refusing to take bail, it would be no answer for the sheriff to 
 say that the party did not tender a bail-bond (^). It seems, 
 however, that the sheriff is entitled to be paid for such bond by 
 the party arrested («). As to the amount which he is entitled 
 to charge, see ante, pp. 100, 102. 
 When tije When the bail-bond is executed, or a deposit duly made in 
 
 d'isVh^rgeThe ^^^^ ^f bail, or the sheriff's officer in whose custody the defend- 
 ant is has received a written authority from the plaintiff to dis- 
 charge him (a:), search having been first made at the sheriff's 
 office to see that there are no detainers against the defendant, 
 he should be discharged out of custody upon payment of his 
 fees, the costs of the bail-bond, &c. So also the defendant is 
 entitled to his discharge when the debt and costs in the action 
 have been paid to the plaintiff, no matter by whom (y). The 
 sheriff is allowed a reasonable time to search for detainers (z) ; 
 
 (p) Villieis V. Hastings. Cro. Jac. the plaintiff." And see Huckett v, 
 
 286; Kirkebridge v. Wilson, 2 Lev. PJummer, 5 Moore, 538, nrc. 
 
 123. (s) Holden r. Raphael, 4 Ad.& K. 
 
 ((/) Gardiner v- Dudgate, 2 Shov.. 228; 5 i\. 6c M. 655, S. C. 
 
 51; Cudvvell t\ Dunkin, '1'. Jones, (t) Milne v. Wood, 5 C. & P. 
 
 137; Gio'enoru. Soame,6 .Vlod. 122. 5B7. 
 
 (r) Owen V. Nail, 6 T. U 702. (it) Ibid. 
 
 In the ease of Kench v. Britton, 10 (i) Martin v. Francis, 2 B. & Aid. 
 
 Mod. 327, Parker, C J., is reported 402. 
 
 to have said, " that the statute only (y) Rimmer v. Turner, 3 Dowl. 
 
 requires that the iilienff should 'ake a GOl. 
 
 bond conditioned for the appearance (z) Taylor v. Drander, 1 Esp. 45; 
 
 of the parly on such a day at West- see Samuel v. Buller, I Exch. R. 
 minster ; it does not say even to answer 
 
 defendant.
 
 THE BAIL-BOND. 
 
 157 
 
 and he is not obliged to discharge a defendant on giving a bail- 
 bond, without being paid his fees («). Although, however, the 
 sheriff may detain the defendant for his fees, the plaintiff's 
 attorney has no lien on the body of a defendant for his costs; 
 and therefore a sheriff was held justified in discharging a de- 
 fendant out of his custody upon the authority of the plaintiff, 
 although his attorney had given him notice not to discharge him 
 until he was satisfied his costs (6), 
 
 CHAP. VI. 
 SECT. II. 
 
 Section III. 
 Of the Assignment of the Bail-Bond. 
 
 The sheriff, before the statute of 4 Anne, c. 16, was not com- 
 pellable to assign a bail-bond (c) taken by him on an arrest, 
 although for refusing to assign it the courts would have amerced 
 the sheriff(rf) ; and according to the old practice, the bail-bond 
 was never assigned until the sheriff had been ruled to bring in 
 the body (c). And even after the sheriff had assigned the bond, 
 the action still must have been brought in the name of the 
 sheriff, and of course the sheriff might have released the action. 
 But those inconveniences were remedied by the 20th section of 
 the statute 4 Anne, c. 16, s. 20 (/), whereby it is enacted, that 
 
 Sheriff 
 obliged (0 
 assign the 
 bail-bund. 
 
 (a) Chit. Archb. 543, 7th ed. ; 
 Milne v. Wood, iibi sup. 
 
 (b) Mania v. Francis, 2 Bar. & 
 Aid. 402. 
 
 (c) 1 Mod. 288. 
 ((/) 2 Mod. 84. 
 
 (e) Eiherick t). Cowper, 1 Snlk. 99. 
 
 (f) 'Jhe act provides, " that if any 
 person shall be arrested by any writ, 
 bill, or process, issuing out of any of 
 the courts of record at Westminster 
 at the suit of any common person. 
 and the sheriff or other officer takcth 
 bail frum such person against whom 
 such writ, bill, or process is taken out, 
 the sheriff or oilier officer, at the re- 
 quest and costs of the plaintiff in such 
 action or suit, or his lawful attorney, 
 shall assign to the plaintiff' in such 
 action the bail-bond, or other security , 
 taken from such i)ail, bv indorsing the 
 same, and attesting it under his hand 
 and seal, in the presence of two or 
 more credible witnesses, which may 
 be done without any stamp, provided 
 
 the assignment so indorsed be duly 
 stamped bt-foie any action be brought 
 thereon ; and 'f the said bail-bond of 
 assignment, or other security takea 
 for bail, be forfeited, the plaintiff in 
 such action, after such assignment 
 made, may bring an action and suit 
 thereuuon in his own name, and the 
 court where the action is brought may 
 by rule or rules of the same com I give 
 such relief to the plaintiff and defend- 
 ant in the oiiginal action, and to the 
 bail upon the said bond or other secu- 
 rity taken from such bail, as is aiiree- 
 able to justice and reason, and that 
 such rule or rules of the said court 
 shall have the nature and effect of a 
 defeazance to such bail bond or other 
 security for bail." This statute does 
 not authorize the assignment of a bail- 
 bund given by a party attached for 
 contempt for not putting in an answer 
 in chancery; Meller v. Palt'reyman, 
 4 B. & Ad. 146.
 
 158 sheriff's duty on a bailaisi,!, capias. 
 
 CHAP. VI. where a defendant sliall bo arrested, and the sheriff takes a bail- 
 ^sECT^m. IjojjjJ^ the sheriff' shall, v.i the request and costs of the plaintiff 
 or his attorney, assign to the plaintiff such bail-bond, by indorsing 
 the same, and attesting it under his luind and seal, in the pre- 
 sence of two or more credible witnesses, which may be done 
 without any stamp, provided such assignment be afterwards 
 duly stamped before any action be brought thereon. If, upon 
 request of the plaintiff, the sheriff refuse to assign the bail-bond, 
 he is liable to an action on the case [g). 
 At what time The plaintiff" cannot take an assignment of the bail-bond after 
 Inay^ake'ihe service of the rule of allowance of bail (h). Nor could he 
 assignment, formerly have taken an assignment of the bail-bond, if the de- 
 fendant had rendered before the return of the writ(i); but since 
 the Uniformity of Process Act, 2 Will. 4, c. 39, it is otherwise, 
 unless the defendant has put in special bail according to the 
 exigency of the writ, /, c. within eight days after the arrest (A:). 
 If the plaintiff" elect first to proceed against the sheriff, he cannot 
 afterwards bring an action on the bond, pending the rule to bring 
 in the body (/). 
 
 Properly speaking, the plaintiff cannot take an assignment of 
 the bail-bond before it is forfeited (???), viz., if the defendant do 
 not put in bail in due time, and perfect them if excepted to, or 
 do not perfect bail if put in after the time appointed ; although 
 it has been said that the plaintiff may take an assignment before 
 it is forfeited (?i). The assigimaent must be made whilst the 
 original cause is pending in court (o). By Reg. Gen. Hil. 2 
 
 (g) Stamper v. Milbourne, 7 T. II. (h) Hodgson v. Mee, 3 Ad. & E. 
 
 122; Mendez v. Bridges, 5 Taunl. 765; 5 N. & M. 302, S. C. 
 
 325. (/) Reg. Gen. H. 2 VV. 4. r. 23. 
 
 (/i) 1 Esp. 87; Short v. Doyle, 4 See Wliiule v. Oldacre, 7 B. & C. 
 
 Dowl. 202. But until the service of 478; Blackford v. Hawkins, 1 Biug. 
 
 the rule for the allowance of bail, the 181. 
 
 plainlif}" is entitled to take an assign- (»)) Dent v. Weston, 8 T. R. 4. 
 
 nienl of the bail-bond; HolLind v. (n) Barnes, 77. 
 
 White, 2 Bos. & Pul. 341 ; Rex v. (o) Sparrow v. Naylor, 2 Black. 
 
 Sheriff of Middlesex, 4 T. R. 493. Rep. 876. The plaintiff may commence 
 
 See also 1 Taunt. 119; Ellis i'. Bates, his action on the bail-bond at any 
 
 2 C. & iM. 143. tio^e after the cause is out of court, 
 
 (i) Jones t). Lander, 6 T. R. 753 ; provided the bond was assigned in 
 
 Stamper v. Milbourne. 7 T, R. 122 ; time ; Pi'^'ott v. Truste, 3 Bo=. & Pul. 
 
 Hyde v. Whiskard, 8 T. R. 456; 221; CoUeU i'. Bland, 4 Taunt. 715. 
 
 Plimpton V. Howell, 10 East, 100; If there has been laches on the part of 
 
 And see Lewis v. Oavis, 5 Moore, 267 ; the plaintilf, the court, in the exercise 
 
 Maddocks V. Dullock, 1 Bos, 6i I'ul. of its equitable jurisdiction, will grant 
 
 325. itlitl'j 3 boa.ik Pul. 222.
 
 ASSIGNMENT OF THE BAir>-BOND. 159 
 
 Will. 4, r. 35, the plaintiff is out of court, unless lie declare chap. vr. 
 within one year after the process is returnable, which would "''-ct. iii. 
 now be construed to mean after the service or execution of the 
 process. 
 
 The assignment may be made by the high sheriff, or by the By whom and 
 under-sheriff (2:>), or his clerk (r/), in the high sheriff's name. 
 The assignment must be made by indorsement on the back of 
 the bond, under the hand and seal of the sheriff, and made in 
 the presence of two or more credible witnesses (?•). Credible 
 here means disinterested ; therefore an attestation by the plaintiff 
 in the action and another person renders the assignment inva- 
 lid («). The bail-bond may be assigned, and an action brought 
 on it in any county (^;. The usual fee paid to the under-sheriff 
 for assigning a bail-bond in London and Middlesex is 5s. ; in 
 any other county 6s. 8d. (n). 
 
 By taking an assignment of a valid bail-bond, the sheriff is The effect of 
 discharged, for the plaintifi" cannot, after taking an assignment ment. " 
 of the bail-bond, rule the sheriff to return the vvrit(x); but if 
 the bail-bond be not valid, the plaintiff may still proceed against 
 the sheriff (?/). Formerly, in the Queen's Bench, after taking 
 an assignment of the bail-bond, if the bail to the sheriff become 
 bail above, the plaintiff could not except to them, for the ac- 
 ceptance of the assignment was an admission of the sufficiency 
 of the bail(s;); but the bail must justify, if they were excepted 
 to be/ore the plaintiff took the assignment (a). But in the 
 Common Pleas, if the bail to the sheriff became bail to the 
 
 (])) Kilson V. Fagg, 1 Stra. 60^ 10 London, at the secondary's office, 28, 
 
 Mod. 288, S. C. Coleman Street; or if in any other 
 
 (ij) Doe n. Brawn, 5 Bar. & Aid. county, at tlieolfice of the undersherilF, 
 
 243 ; Middleton v. Sandford, 4 Camp. or of his agent in town, and the bond, 
 
 36; Harris u. Aslily, Sit. JMidd. in 30 wilh an assignment to the plaintift' 
 
 Geo. 2 ; French v. Arnold, T. 5 Geo. indorsed on it, will be given to the 
 
 3, cit. Tidd's Prac. 301, 3th edit. plaintiff'; Chit. Archbold's Frac. 559, 
 
 (j) See Stat. 4 Ann. c. 16, s. 20. 7ih edit. 
 The witnesses need not subscribe their (u) Chit. Archb. 559, 7th edit. 
 
 names in the presence of the officer (.i) Kllierickt'. Cooper, 1 Salk. 99; 
 
 assigning; Phillips y. Batlow, 1 Bing, Lord Brooke v. Stone, 1 VVils. 223. 
 N. C. 433 ; 1 Scott, 322, S. C. (,/) Id. ibid. 
 
 is) While V. Barrack, 2 M. & W. (z) Anon, 1 Salk. 97; Fish i;. Hor- 
 
 425. ncr, 7 IVlod. 62 ; How v. Granville, 7 
 
 (t) Gregson I'. Heather, Stra. 727 ; ]\Jod. 117; Grovenor i'. Soame, 6 
 
 2 Lord Raym. 1455, S. C. If tiie Mod. 122. 
 
 bail-bond be taken in Middlesex, ap- (a) Hill v. Jones, 11 East, 321 ; 
 
 plication should be made at tiie she- Edmond v. Ross, 9 Price, 5. 
 riff's office in Red Lion Square ; if in
 
 160 sheriff's duty on a BAlLABLi: CAPIAS. 
 
 CHAP. vr. action, tlie plaintiff miglit except to tliem, notwithstanding he 
 srcT. i n. jj^j taken an assignnnent of the bail-bond (6). And now, by 
 Reg. Gen. Hil. 2 Will. 4, r. 15, the latter practice is extended 
 to all the courts. Before the 1 & 2 Vict. c. 110, the plaintiff 
 was not at liberty to proceed in the original action so long as he 
 retained his right to sue on the bail-bond (c) ; but now, the 
 capias being wholly collateral, the taking an assignment of the 
 bail-bond no longer affects the right of the plaintiff to proceed 
 in the original action (d). 
 Action on ihe The sheriff, if he has been obliged to pay the debt and costs 
 whom^and ^ upon an attachment, may pitt the bond in force to reimburse 
 brougbt. himself; and the plaintiff also, after an assignment made to him, 
 
 if the defendant has not complied with the condition of the bond, 
 may bring his action thereon (e) ; and this, though he have be- 
 come bankrupt (/'). The plaintiff cannot, however, in any case 
 sue on the bond before forfeiture ; if he does, it w ill be a good 
 ground for setting aside the writ in the action on the bond, or 
 the nonforfeiture may be pleaded in bar(^). Before the rules of 
 Hil. T. 2 Will. 4, in the Queen's Bench, the action could not be 
 commenced until four days after the return of the writ, if the 
 arrest were in London or Middlesex, or until six days if in any 
 other county, the fourth and sixth day being reckoned exclu- 
 sive (/«). In the Common Pleas, a bail-bond taken in London or 
 Middlesex, on process returnable on the first return of any 
 term, could not be put in suit until the fifth day in term, and in 
 any other county until the ninth day in full terra ; and on process 
 returnable on any other return day but the first, if the arrest 
 were in London or Middlesex, the bail-bond could not be put 
 in suit until four days exclusive, if in any other county until 
 eight days exclusive, after the return day of the process (i). 
 But by Reg. Gen. Hil. 2 Will. 4, c. 24, it was ordered that no 
 bail-bond taken in London or Middlesex should be put in suit 
 until after the expiration of four days, nor if taken elsewhere 
 till after the expiration of eight days exclusive, from the ap- 
 
 (6) R. M. 6 Geo. 2. C. P., Bough- (e) 4 Ann. c. 16, s. 20. 
 
 ton f. Cliaffey, 2 Wils. 6. (/) .Anon. T. T. 1831, K. B., 
 
 (r) Collet i. Bland, 4 Taunt. 715; Chit. Archb 560, 7tli ed. 
 
 Pigott I'.Trusle, 3 Bos. & Pu!.221. (;;) Edwards r. Danks, 4Dowl. 357. 
 
 (d) Belts ! . Smyth, 2 Q. 13. 1 13 ; (h / R. iM. 8 Ann. s. 6, K. B. 
 
 2 G. & D. 1 13, S. C. ; Keg. v. Sheriff (i) R. T, 30 Geo. 3, C. P., 1 H. 
 
 of Montgomeryshire, 9 M. & W. 448; Black. 525, 526. See a former rule, 
 
 Ede V. Collingridge, 1 1 M. & W. Gl. 2 Blac. Rep. 1009.
 
 ASSIGNMENT OF THE BAIL-BOND. 161 
 
 pearance day of the process. This rule, however, was super- chap. vi. 
 seded by the Uniformity of Process Act, 2 Will. 4, c. 39, the ^ "^^^^ "'• 
 schedule to which gave the form of the writ of capias, in which 
 the defendant was required to take notice " that within eight 
 days after execution thereof on him, inclusive of the day of such 
 execution, he shall cause special bail to be put in for him to the 
 action, and that in default of his so doing, such proceedings 
 might be had and taken as are mentioned in the warning here- 
 under written ;" and the warning states that " if the defendant, 
 having given bail on the arrest, shall omit to put in special bail 
 as required, the plaintiff may proceed against the sheriff as on 
 the bail-bond (j)," And inasmuch as the form of the capias 
 given by the 1 & 2 Vict. c. 110, is in this respect the same, and 
 the same warning is to be subscribed to it, it follows that if a 
 defendant held to bail on a cajnas under that statute do not put 
 in special bail within eight days after execution of the process 
 upon him, including the day of such execution, the plaintiff, 
 immediately on the expiration of that time, may put the bail- 
 bond in suit ; even though the defendant, after the expiration of 
 the eight days, renders himself to the sheriff (^). 
 
 The plaintiff may proceed on the bail-bond, unless the bail 
 be justified, although not excepted to, if the bail have not been 
 put in in time (l). The plaintiff may treat bail to the action, who 
 are insufficient by the practice of the court, as a nullity, and 
 proceed on the bail-bond as soon as the time for putting in bail 
 has expired, unless good bail be duly put in in the meantime (m). 
 Where the plaintiff, with the consent of the bail to the sheriff, 
 took from the defendant a cognovit with a stay of execution for 
 a month, it was held that, although the bail continued liable 
 notwithstanding the cognovit, they could not be sued on the 
 bail-bond until they received notice that the cognovit was unsa- 
 tisfied (n). 
 
 (j) Hillary r. Rowles, 5 B. & Ad. East, 180 ; Thomson v. Roubell, Doug. 
 
 460. 466, n. (1). The practice was other- 
 
 (k) See Hodgson v. Mee, 3 Ad. & wise in C, P. ; Fenton v. Ruggles, 1 
 
 E. 765 ; 5 N. 6c M. 302, S, C. Bos. & Pul. 356 ; Wallace v. Arrow- 
 
 (/) Turner v. Gary, 7 East, 607. smith, 2 Bos. & Pul. 49. 
 
 (m) Reg. Gen. Hil.2Will.4, r. 13. (n) Clift v. Gye, 9 B. & C. 422; 
 
 Before this rule, in K. B., the plaintiff see also Woosnam v. Price, 1 C. & M. 
 
 could not treat such bail as a nullity, 352 ; Suvman v. Bruce, 10 Bing. 444 ; 
 
 but was bound to except to them as if 4 ]\I. &: Scott, 184. 
 regular; Rex v. Sheriff of Surry, 2
 
 162 SHERIFF S DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. Where the action is by the plaintiff' as assignee of the sheriff', 
 by the practice of all the courts, it must be brought in the same 
 
 SECT. III. 
 
 In What court court where the orignial action was brought; otherwise the 
 
 an action on . i- r> ■ i i i i / \ T 
 
 a bail-bond parties couUl not have the rehei intenueu by the statute (o). In 
 brmight. the Courts of Common Pleas (^>) and Exchequer ((/), where the 
 
 action on the bail-bond is brought by the sheriff', the sheriff' has 
 been allowed to bring actions on bail-bonds taken on process 
 issuing out of another court. In the Queen's Bench the sheriff" 
 could not sue on a bail-bond taken on process issuing out of 
 another court (r). But now, when brought by the sheriff', the 
 action may be in any court (s). The bringing an action in a 
 different court from that in which the original action was com- 
 menced is only an irregularity, of which advantage must be 
 taken by special application to the court where the action on 
 the bail-bond is pending ; but this irregularity is no objection 
 on the plea of non est factum (t). The venue in an action on a 
 bail-bond may be laid in any county (ti). 
 Parties can- In an action on the bail-bond, whether brought by the sherifT 
 to° bai*i ^n'an" OY by his assignee, neither the defendant nor his sureties could 
 bail-bond.* ^v^^' ^^ holden to bail(a;). But if either the sheriff" or his assignee 
 recover judgment on the bail-bond, the defendants may be holden 
 to bail on that judgment (?/). 
 The deciara- Where the action is by the sheriff" himself, the bond is usually 
 declared on as a common money bond, without setting out the 
 condition. Where the action is by the assignee, it is not neces- 
 sary to make profert of the assignment (s) ; it is sufficient to 
 allege that the sheriff" assigned the bond according to the form 
 of the statute, and it need not be stated that the assignment 
 was under his hand and seal (a). Neither need the names of the 
 attesting witnesses be stated, nor need it even be alleged that 
 the assignment was made in the presence of two witnesses, as 
 
 (-0 Mellor V. Palfreyraan, 1 N. & 396 ; Reg. Gen. H. T. 4 Will. 4, 
 
 M. 696. (u) Giegson v. Heather, Stra. 727 ; 
 
 (p) Morris v. Kees, 3 Wils. 348 ; 2 Lord Raym. 1455, S. C. 
 
 2 Blac. Rep. 838, S. C. ; Chesterton (.t) Brander v. Robson, 6 T. R. 
 
 V. Middlehurst, 1 Burr. 642 ; Walton 336 ; Mellish and another i'. Pethe- 
 
 V. Bent, 3 Burr. 1923 ; Newman v. rick, 8 T. R. 450. 
 
 Faucitt, 1 H, Blac. 631. (y) Prendergast v. Davis, 8 T. R. 
 
 (q) Yorke v. Ogden, 8 Price, 174. 85. 
 
 (>•) Donatty v. Barclay. 8 T. R. (s) Leafev. Box, 1 Wils. 121. 
 
 152. (a) Dawes v, Papworth, Willes, 
 
 (s)Reg. Gen. Hil. 2Will.4, r.28. 458. 
 
 (t) Wright V, Walmsley, 2 Camp. 
 
 tion
 
 ASSIGNMENT OF THE BAIL-BOND. 163 
 
 required by the statute (b) : tliough the declaration would be chap. vr. 
 
 bad, if on the face of it it appeared that the assignment was not '- — '-- 
 
 according to the statute (c). Neither is it necessary to aver in 
 the declaration, that the defendant in the original action was 
 arrested, and such an averment, if made, would not be tra- 
 versable (tZ). Neither need it be averred that the writ was 
 issued on an affidavit of debt, and indorsed with the sum sworn 
 to (e). 
 
 If the defendant do not justify his bail in due time, and com- Pleadings. 
 peruit ad diem be pleaded to a declaration on the bail-bond, the 
 court will order the appearance of the defendant to be recorded 
 as of the day on which the bail justified (/). And if bail above 
 be justified before the expiration of the rule to bring in the body, 
 the bail below might, before the abolition of the doctrine of re- 
 lation to the first day of term, in an action on the bond, plead 
 comperuit ad diem, and that plea was satisfied by the production 
 of the recognizance roll, containing an entry of the defendant's 
 appearance generally ; and such roll might be made up at any 
 day before the day given for producing it (^o-) ; or, instead of so 
 pleading, the defendant in the action on the bond might, it 
 would seem, apply to the court or a judge to stay the proceed- 
 ings on it. But now, perhaps, as the doctrine of relation is 
 abolished, and the recognizance roll does not enter the appear- 
 ance generally, this plea could not be successfully adopted, 
 though the defendant may still obtain a stay of the proceed- 
 ings {h). 
 
 The bail to the sheriff are liable to satisfy the whole debt due Extent of 
 to the plaintiff, to the full extent of the penalty of the bond, 'the''baii-''" 
 though beyond the sum sworn to, and costs (i). Where several ''""''■ 
 actions were brought on a bail-bond against the defendant and 
 
 (6) Robinson v. Taylor, Fortesc. 332 ; 1 Dowl. 660, S. C. ; Knowles 
 
 366; Leafe v. Box, 1 VVils. 121 ; v. Stevens, 1 C. M. & R. 26. 
 Lewis V. Parkes, 3 M. & W. 133 ; (/) Ladd v. Arnaboldi, 1 C. & J. 
 
 6 Dowl. 93, S. C, nom. Lewis v. 97. 
 Parker. (g) Whittle v. Oldaker, 7 B. & C. 
 
 (c) Neott V. Mills, Fortesc. 371. 478 ; 1 M. & R. 298, S. C. 
 
 (d) Taylor v. Clow, 1 B. & Adol. (h) Chit. Archb. 561, 7th edit. 
 223. See also Call v. Thelwell, 3 (j) Stevenson d. Cameron, 8 T. R. 
 Dowl. 443; Watkins v. Parry, Stia. 29; Mitchel v. Gibbons, 1 H. Bla. 
 444; Haley v. Fitzgerald, ib. 643; 76; Orton v. Vincent, Cowp. 71; 
 ante, p. 153. Miffin v. Morgan, 2 Ld. Raym. 1564 ; 
 
 (e) Sharpe v. Abbey, 5 Bing. 193. and see 7 T. R. 370; 3 East, 604. 
 See Hume v, Liversedge, 1 C. & M.
 
 stayed. 
 
 104' SIIF.RIFr's DUTY ON A BAII.ARLF, CAPIAS. 
 
 CHAP. VI. his sureties, tlic court stayed the proceedings on tlie payment 
 
 '—IL- of the costs of one action only, the bringing several actions being 
 
 considered oppressive (d). And now, by Reg. Gen. Hil. 2 Will. 
 4, r. .'30, proceedings on the bail-bond may be stayed on pay- 
 ment of costs in one action, unless sufficient reason be shown 
 for proceeding in more. Rut such an application must be made 
 promptly, and is too late after the several actions have proceeded 
 to verdict (e). Unless, however, all the obligors in the bail-bond 
 are sued jointly, they, or such of them as the plaintiff chooses to 
 sue, should be sued separately ; for if two out of three were to 
 be sued jointly, although it would not be any irregularity {/), 
 still it would be ground for a plea in abatement for nonjoinder. 
 When and on The courts wiU in many cases, where the iustice of the case 
 
 what lerins . . . . . 
 
 proceedings requires it, set aside proceedings on the bail-bond. Thus, if the 
 bond will be plaintiff die after the arrest and before the return of the writ, 
 the court will set aside proceedings (g). And where the de- 
 fendant dies before the plaintiflf could have had judgment against 
 him, if there had been no delay in putting in and perfecting bail, 
 the court will stay proceedings on the bail-bond, upon payment 
 of costs only (A); but where the plaintiff might have had judg- 
 ment against the defendant, if bail above had been put in and 
 perfected in time, the bail to the sheriff are liable for the whole 
 debt and costs, and the court will not relieve them («). Where 
 the defendant becomes bankrupt after he has given a bail-bond, 
 the bail may be relieved on motion, if the defendant has ob- 
 tained his certificate before they are fixed {k) ; but if he do not 
 obtain his certificate until afterwards, they remain liable (^). 
 Where a bankrupt obtained his certificate under a third com- 
 mission, the Court refused to cancel a bail-bond given upon 
 arrest for a debt proveable under that commission, he not having 
 paid fifteen shillings in the pound under either of the former 
 commissions {m). 
 
 id) Key v. Hill, 2 B. & Aid. 598; Morly v. Carr, Barnes, 112. 
 1 Chit. Rep. 337, S. C, Abbott, C. J., (/c) Sanders v. Spincks, Barnes, 
 
 disseiiliente. 105. 
 
 (e) Johnson v. Macdonald, 2 (I) VVoUey d. Cobbe, 1 Burr. 244; 
 Dowl. 44. 1 Ld. Ken. 504, S. C. ; Cockeril! v. 
 
 (f) Knowles v. Johnson, 2 Dowl. Owston, ih. 436; see also Coulson v. 
 653. Hammond, 4 Dowl. & Ry. 160; 2 
 
 (g) Hutchinson v. Smith, 8 Mod. Bar. & Cress. 626, S. C; Streeter j;. 
 240 ; Chit. Archb. 568, 7th edit. Scott, 2 Dowl. 362. 
 
 (/() Castell V. Grave, Barnes, 99. (m) Summers v. Jones, 6 Dowl, 
 
 (i) Orton V. Vincent, Cowp. 71 ; 139. 
 Evening v. Spearman, Barnes, 99 ;
 
 ASSIGNMENT OF Tllli BAIL-BOND. 165 
 
 If the plaintiff" has been guilty of laches («), or has taken a <;hap. 
 
 cognovit for the debt unknown to the sureties (o), the court will 
 stay proceedings on the bail-bond. And where the plaintiff, 
 with the consent of the bail, took a cognovit with a stay of exe- 
 cution for a month, it was held that although, the debt being 
 unpaid, the bail continued liable, yet the plaintiff" could not 
 proceed against them without first giving them notice that the 
 cognovit was unsatisfied (p). 
 
 But after the bond has been forfeited and assigned, the bail 
 will not be discharged by time being given to their principal, 
 even without their consent ((^). If one of the bail to the sheriff" 
 consents to time being given to the principal, such consent is 
 binding upon both (r). 
 
 If proceedings are taken on the bail-bond contrary to good 
 faith, they will be set aside with costs («). So where the pro- 
 ceedings in the action are irregular, or where the defendant 
 ought not to have been holden to bail (t), or the defendant has 
 been nnisnamed in the writ (ii), the court will set aside the bail' 
 bond, although in the last case the defendant has signed the bail- 
 bond with his initials, which correspond with the name in the 
 writ (a;). The affidavit in support of a rule to set aside a bail- 
 bond for this defect must be intituled with the right name of 
 the party, and not with the name by which he was arrested (y). 
 Formerly, also, before the Uniformity of Process Act, if, on or 
 before the return day of the writ, the defendant had rendered 
 himself to the sheriff", or had put in bail and rendered in dis- 
 
 (n) Pigott V. Truste, 3 B. & P. 734; Yeates v. Chapman, 3 Bing. 
 
 221 ; Merryman v. Carpenter, 2 Slra. N, C. 264, Tindal, C. J. 
 
 1262 ; Hutchinson v. Hardcastle, (0 1 Stra. 399. See Yeates v. 
 
 Barnes. 103. Chapman, 3 Bing. N. C. 262. 
 
 (o) Farmer v. Thorley, 4 Ear. & (u) See Finch v. Cocker, 3 Dowl. 
 
 Aid. 91 ; otherwise, if at the instance G78. 
 
 of one of the bail, Rex v. Sheriff of (x) Coles i'. Gunn, 1 Bing. 424; 
 
 Middlesex, I Dowl. & Ry. 388. Johnson v. Cooper, 5 Rloore, 472; 
 
 ( p) CJifl V. G ye, 9 B. & C, 422 ; Smith v. Innes, 4 iAI. & Sel. 360 ; Tay- 
 
 4 M.& Sc. 184; 2 Dowl. 777,S.C. ; lor v. Butlernam, 6 Moore, 264. 
 
 and see also Surman v. Bruce, 10 But the court of C. P. have declared 
 
 Bing. 434; Charelton v. Morris, 6 that they will not for the future set 
 
 Bing. 427. aside bail-bonds, where the defendant 
 
 (q) Woosnam v. Price, 1 C. & M. is sued by the initials of his Christian 
 
 852. name only; Lake v. Silk, 3 Bing. 
 
 (r) Howards. Bradberry, 3 Dowl. 296; Kitching?;. Alder, 1 Chit. Rep. 
 
 92. See also Rex v. The Sheriff' of 282. 
 
 Middlesex, 1 Dowl. & R. 388. {y) Finch t>. Cocker, 2 Dowl. 383. 
 
 (s) Sweeting v. Weaver, 1 1 Price, 
 
 SECT. III.
 
 166 sheuivf's dxjty on a bailable capias. 
 
 CHAP. VI, charge, the court would stay proceedings on the bail-bond (;:;). 
 ' But since that act, a render to the sheriff" would not be a ground 
 
 for staying the proceedings, unless the defendant has put in 
 special bail according to the exigency of the writ (a). If the 
 defendant render himself, or is rendered in discharge of his bail, 
 after the return of the writ, or even after the time for justifi- 
 cation of the bail has expired, the court will stay proceedings on 
 the bail-bond on payment of costs (6). By Reg. Gen. H. T. 
 2 Will. 4, r. 23, a plaintiff" shall not be at liberty to proceed on 
 the bail-bond pending a rule to bring in the body. 
 
 Moreover, if the proceedings be regular, the court will, on 
 the defendant's justifying bail above, stay proceedings on the 
 bail-bond, either on the application of the defendant or of his 
 bail (c). By a rule in the Queen's Bench, " no rule shall be 
 drawn up to stay proceedings regularly commenced on the as- 
 signment of a bail-bond, unless application for such rule shall, 
 if made on the part of the defendant, be grounded on an affi- 
 davit of merits ; or if made on the part of the bail, at their own 
 expense, and for their own indemnity, and without collusion 
 with the defendant (c?)." A similar rule now exists in the Ex- 
 chequer (e), and it is adopted also in the Common Pleas (/). 
 The courts, however, impose terms upon the defendant or his 
 bail, in setting aside proceedings. The terms used to be these ; 
 if the plaintiff" had not lost a trial, the proceedings were stayed 
 on payment of costs incurred upon the bail-bond, perfecting bail 
 in the original action, and if necessary, that the defendant should 
 receive a declaration, plead issuably, and take short notice of 
 trial ; but if the plaintiff" had lost a trial, the bail-bond should 
 
 (z) Jones V. Lander, 6 T. R. 753 ; edit. 
 
 Stamper d. Milbourne, 7 T. K. 122; (rf) Reg. Gen. K. B., M. T. 59 
 
 Harding v. Hennem, 3 Bos. & Pul. Geo. 3, 2 B. & Aid. 240; 1 Chit. 
 
 232; Hydet).Whisiiard,8T. R.456; Rep. 127, n. (a). See Grottick v. 
 
 Pimpton V. Howell, 10 East, 100; Bailey, 5 Bar. & Aid. 703; for the 
 
 Hamilton v. Wilson, 1 East, 383; practice in C. P. see 1 N. R. 123 ; in 
 
 Maddocks v. Bullock, 1 Bos, & Pul. Exchequer, see 1 M'Cleland, 44; 2 
 
 325; Lewis?;. Davis, 5 Moore, 267. C. &c J. 671. 
 
 (a) Hodgson V. Mee, 3 Ad. & E. (e) Keg. Gen. H. T. 7 Will. 4, 
 
 765 ; 5 Nev. & M. 303, S. C. 5 Dowl. 446. See Call v. Thelwell, 
 
 (h) Rex V. Sheriff of Middlesex, 7 3 Dowl. 444 ; R. i;. Sheriff of Surrey, 
 
 T. R. 529; Edwin v. Allen, 5 T. R. id. 174. 
 
 401 ; Meysey v. Carnell, ib. 534; (/) Rex «. Sheriffs of London, 1 
 
 Seaver v. Spraagon, 2 N. R. 85. M. & P. 177 ; 4 Bing. 427, S. C. ; 
 
 (c) 1 Chit. "Archb. Prac. 569, 7ih Chit. Arch. 570, 7th ed.
 
 ASSIGNMENT OF THE BAIL-BOND. 167 
 
 then remain as a security for the debt and costs in the original chap. m. 
 action, if the plaintiff" should have a verdict (g). And by Reg. ^'^'^'^' "'* 
 Gen. H. T. 2 Will. 4, r. 29, in all cases where the bail-bond 
 was directed to stand as a security, the plaintiff might sign judg- 
 ment upon it. 
 
 Since the 1 & 2 Vict, c, 110, the capias being a mere col- 
 lateral proceeding, it seems that the court will in all cases stay 
 the proceedings on putting in and perfecting bail, or payment 
 into court in lieu of bail, or render and payment of costs (/«); 
 for since that statute there is no impediment to the plaintiff"'s 
 proceeding against the defendant, whether bail above be put in 
 or not (/"). Where the application is by the bail, no terms can 
 be imposed on the defendant (k). 
 
 Proceedings may be stayed, either for irregularity, or by 
 putting in bail where the proceedings are regular, by application 
 to the court in term time, or to a judge in vacation (/), The 
 affidavits, summons, and orders must be intituled in the original 
 action (?7i), excepting where the irregularity is in the process in 
 the action on the bail-bond, and then it should be intituled in 
 the action on the bail-bond, and not in the original action («). 
 
 Section IV. 
 Rule to return the Writ. 
 
 Where the plaintiff" is dissatisfied with the bail to the sheriff", Ri,ie to re- 
 he can only proceed against the sheriff", if the defendant do not '""' '''^ "'"* 
 put in bail, or render himself in due time. The object of ruling 
 the sheriff" to return the writ is either to compel the defendant 
 to put in bail, or, if bail be already put in, to compel them 
 to justify at the same time as the plaintiff" excepts to the bail, 
 and gives notice of exception. The plaintiff" should not be guilty 
 
 (g) 1 Archbold's Prac. 100, 2d ed. ( k) Call v. Thelwell, 3 Dowl. 445 ; 
 
 And see post, as to setting aside an at- 1 (J. JM. & R. 780, S. C. 
 
 tachmenl obtained against the sheriff. (I) Chit. Archb. 565, 7th ed. 
 
 (h) Chit. Arch. 569, 7th ed. (m) 4 T. R. 688; 8 T. R. 456; 3 
 
 (0 Belts V. Smyth, 2 Q. B. 113. Bos. & Pul. 118. 
 
 See also Reg. v. Sheriff of Montgo- (n) Willes, 461 ; 1 Bos. & Pul. 
 
 meryshire, 1 Dowl. N. S. 388 ; Ede 337 ; Stride v. Hill, 1 M. & VV. 37, 
 
 V. Collingridge, 11 M. & VV. 61. per Parke, B.
 
 168 
 
 SHERIFFS DUTY ON -A BAILABLE CAl'lAS. 
 
 cuAr. V], 
 
 SECT. IV. 
 
 Non est 
 inventus 
 
 of any delay in ruling the sheriff' to return the writ ; for if the 
 party has been guilty of any laches, the court will not interfere 
 to compel the sheriff" to put in bail, particularly if by such delay 
 the sheriff would be placed in a worse situation than he would 
 have been if he had been ruled to return the writ in the first 
 instance. 
 
 When the sheriff" may be ruled to return the writ, and when 
 not, and when and how the courts will grant an attachment 
 against him for not returning the writ, has been fully con- 
 sidered in a former part of this work (o). 
 
 By Reg. Gen. M. 7 Will. 4, all rules upon sheriffs, other than 
 the sheriffs of London and Middlesex, to return writs, whether 
 of mesne or final process, and rules to bring in the bodies of de- 
 fendants, are to be eight day rules instead of six day rules (p). 
 
 The sheriff's return to a bailable writ of capias, that the 
 defendant is 7)ot found in his bailiwick, is proper only in case 
 he had no opportunity of arresting the defendant ; for where 
 the sheriff has or might have taken the defendant, he is liable 
 for a false return, if he return non est inoentus^q). But the 
 court will not set aside the return (r). A return that " the 
 defendant is not to be found in my bailiwick" would be bad (s). 
 It is said that if a sheriff takes one by force of a cajnas, he does 
 well, but if he returns non est inventus, he shall be a trespasser 
 ah initio {t). 
 Cepi corpus. But where the defendant has been arrested, and discharged 
 on giving a bail-bond, the sheriff should return cepi corpus el 
 paratmn haheo{ii), for it was his duty to take bail; for this, 
 which was the ancient return, is not altered by the statute of the 
 23d Hen. 6, c. 9 {x) ; and if bail be not duly put in and per- 
 fected, the mode of proceeding against the sheriff is by attach- 
 ment for not bringing in the body(7/). If the defendant has 
 been discharged, on being arrested, without giving a bail-bond, 
 
 (o) See ante, from p. 81 to p. 87. 
 
 (p) Jervis's Rules, 152. 
 
 (7) Hawkins D. Mildmay, Cro. Eliz. 
 729; 12 Mod. 311; 2 Keb. 291; 
 Becktord v. Montague, 2 Esp. 475. 
 
 (?•) Goubotv. DeCrouy, IC. &M. 
 772 ; 2 Dowl. 86, S. C. 
 
 (s) Rex V. Sheriff of Kent, 2 M. & 
 W. 316; 5 Uowl. 451, S. C. 
 
 (() See Plovvd. 16. Quare. 
 
 (ti) See this return, Append, c. 6, 
 s. 4. 
 
 (x) Cro. Eliz. 624, 808, 852 ; Noy, 
 39; 1 Sid. 22, 439; 1 Vent, 55, 85 ; 
 2 Saund. 60, 154 ; 1 Mod. 33, 57, 
 227 ; 2 Mod. 83, 177 ; 3 Salk. 314. 
 
 (y) See post, 173 ; also Neck v. 
 Humphery, 3 Ad. & E. 131, per cur.; 
 4 N. & M. 738, S. C.
 
 RULE TO llE'fURN THE WRIT. 169 
 
 and does not appear at the return of the writ, the sheriff" will be chap. vi. 
 liable to an action ; but in such .case it is usual to return cepi ^^'''^' '^' 
 corpus et jinratum haheo, in order to give the defendant an oppor- 
 tunity of putting in bail ; for it does not necessarily follow, when 
 the sheriff' returns cepi corpus et paratum haheo, that he has taken 
 a bail-bond ; he may have allowed the defendant to be at large, 
 intending to put in bail when required, if he can do so (2). If 
 the defendant be in the county gaol, the sheriff* should mention 
 this in his return, and not say paratum haheo {(i). And gene- 
 rally, if the fact be that the defendant is in custody, the sheriff 
 should return that fact (6). If the sheriff" has discharged the 
 defendant, or delivered him over to another custody, by direc- 
 tion of the plaintiff", or by order of the court, or on depositing 
 in the sheriff"'s hands the sum sworn to, and 10/, for costs, these 
 should be mentioned in the return (c). When the sheriff" may 
 return that the defendant was rescued out of his custody, or 
 that the defendant remains sick in prison, and where mandavi 
 hallivo is a good return, have already been noticed {d) ; and for 
 the returns in general, see ante, from page 87 to 99. 
 
 The sheriff", having arrested the party, miist, we have seen. The object 
 return cepi corpus et paratum naoeo. Alter such return, 11 the miins the 
 defendant be at large and no bail put in, or if bail be put in bring in ihe 
 but not justified, the sheriff" may be ruled, or in vacation may " ^' 
 be ordered (e), to bring in the body. If the sheriff^ return some 
 excuse which is not sufficient, as an insujfficient return of rescue 
 or languidus, he may, notwithstanding, be ruled to bring in the 
 body(/). The intent of the rule, where the defendant is not in 
 custody, is to compel the sheriff" to put in and perfect bail {g). 
 If bail be put in, and notice of justification be given, yet unless 
 the plaintiff" except to the bail, he cannot rule the sheriff to 
 bring in the body (//). l"his rule cannot in general be taken 
 
 (s) See 4 Nev. & M. 738, pev Pat- Aichb. 553, 7th ed. 
 teson, J. (/) Rex i;. Sheriff of Middlesex, I 
 
 (a) Rex V. Sheriff of VViUs, 8 Bar. 6c Aid. 190; Cavenagh r. Col- 
 Moore, 518. lett, 4 Bar. & Aid. 279. 
 
 (ft) 4 Nev. & M. 708, ptr Little- (g) Wolfe v. Collingwood, 1 Wils. 
 
 dale, J. 262. 
 
 (c) See each of these returns, Ap- (/;) Bex v. Sheriff of Middlesex, 8 
 pend. c. 6, s. 4. T. R. 258 ; Rogers v. Mapleback, 1 
 
 (d) Ante, p. 96 to 99. H. Blac. 107. See also Bond v. Evans, 
 
 (e) Reg. Gen. H. T. 3 Will. 4, 4 Bar. & Cr. 864.
 
 170 sHErai'F's duty on a bailable capias. 
 
 CHAP. VI. out until the time for putting in bail has expired (i) : fox it is 
 
 SECT. IV. 
 
 necessary that the proceedings against the slieriff should keep 
 pace with the times allowed for putting in and perfecting bail ; 
 otherwise it might happen that the defendant might justify bail 
 after the sheriff' is fixed with the debt and costs, whereby the 
 sheriff would be without remedy, for if he brings an action on 
 the bail-bond against the defendant, or his bail, they may plead 
 compeniit ad diem, and so defeat the action (i). If the time for 
 putting in bail has not expired, the rule to bring in the body 
 must not be taken out until the day after the expiration of the 
 rule to return the writ. In such case, if the rule to bring in the 
 body be taken out on the day on which the rule to return the 
 writ expires, an attachment for non-compliance therewith will 
 be set aside for irregularity (/). But it is the settled practice, 
 where the time for putting in bail has expired, that the plaintiff" 
 may rule the sheriff to bring in the body on the same day that 
 he returns cepi corpus {vi). Where there has been laches on the 
 part of the plaintiff in ruling the sheriff to bring in the body, 
 the court will set aside an attachment for not bringing in the 
 body ; as where the sheriff' returned cepi corpus, in Hilary term, 
 and the plaintiff did not rule him to bring in the body until 
 Michaelmas term, the court set aside an attachment for not 
 doing \t(n). 
 When the Where the plaintiff, on the return of cepi corpus, has recovered 
 
 shciill c^innot - . . „ • i i ■ rr i 
 
 be ruled lo damages m an action oi escape agamst the sheriff, he cannot 
 
 body. rule him afterwards to bring in the body, for he cannot proceed 
 
 against the sheriff as if the defendant was not in his custody, 
 
 and then as if the return were true (o). Nor can the plaintiff rule 
 
 (j) Rolfe u. Steel, 2 H. Blac. 276; a bail-bond; Austen v. Fenton, 1 
 
 Rex V. Sheriff of Middlesex, 8 East, Taunt. 23. 
 464. (/) Hutchins v. Hird, 5 T. R. 479 ; 
 
 (A:) 2 Saund. 61 e. But if bail has Rex u. Sheriff of London, 2 East, 241. 
 been put in but not justified, and the (m) Rex v. Sheriff of Middlesex, 4 
 
 sheriff obliged to put the bail-bond in Maule & Sel. 427. 
 force for his indemnity, to which ac- {n) Rex v. Sheriff of Surrey, 7 T. 
 
 tion the defendants plead compendl ad R, 452 ; Rex v. Sheriff of London, 1 
 
 diem, the court will not order there- Taunt, ill. And also where there 
 
 cognizance of bail to be struck off the are laches in moving for an attach- 
 
 file ; Leigh v. Bertles, 1 Marsh. 520 ; ment ; Rex v. Perring, 3 Bos. & Pul. 
 
 6 Taunt. 167, S. C. And the court 151 , Rex i'. Sheriff of Surrey, 9 East, 
 
 will order the date of appearance to 467 ; Rex v. Sheriff of Middlesex, 1 
 
 be entered in the filacer's book on Dowl. 53. 
 
 motion, where issue is joined in a plea (o) Berwick v. Walton, 2 Bar. & 
 
 of comperuit ad diem to an action on Aid. 623 ; 1 Chit. Rep. 993, S. C.
 
 RULE TO BRING IN THE BODY. 171 
 
 the sheriff to bring in the body after he has taken a cognovit chap. vi. 
 from the defendant, for the defendant appears in court on the '- — — 
 
 giving the cognovit, and the sheriff has done his duty (p). 
 
 It was formerly usual, in the Queen's Bench, to proceed against Late sheiitf 
 the late sheriff for not bringing in the body by distringas. But to bring in 
 now by rule of that court, " where any sheriff, before his going 
 out of office, shall arrest any defendant, and a cepi corpus shall 
 afterwards be returned, he shall and may, within the time 
 allowed by law, be called upon to bring in the body, by a rule 
 for that purpose, notwithstanding he may be out of office before 
 such rule granted ((/)." If the old sheriff be ruled to return 
 the writ, and the new sheriff make a return of cepi corpus, the 
 old sheriff cannot be ruled to bring in the body, for he has 
 made no return (r). A similar practice has also obtained in 
 C. P. (s), and in that court, a sheriff who is ruled on the last 
 day of the term, but goes out of office before the next term, is 
 liable for an attachment for not bringing in the body (t). 
 
 In the counties palatine, the attachment, or other process of i,, the coun- 
 contempt (t<), issues against the party who is in default; as '"^^ P'* "■""'^• 
 against the Chancellor of Lancaster, Bishop of Durham (a), or 
 the Chamberlains of Chester or their officers, if they refuse to 
 make a mandate to the sheriff, or to return the writ into court 
 after he has made his return to them ; or against the sheriff if 
 he will not return the mandate, or bring in the body of the de- 
 fendant, pursuant to his return of cepi corpus, &c., for though 
 the sheriff is not the immediate officer of the court above, yet he 
 is answerable to it for contempts. 
 
 As the object of the rule to bring in the body is to bring the How servec^- 
 sheriff into contempt, it must be served in the same manner as 
 the rule to return the writ (y). 
 
 This rule, like the rule to return the writ, is a four-day rule ^"^ ">!"■ 
 
 •' plied with. 
 
 (p) Rex V. Sheriff of Surrey, 1 East, 604. 
 
 Taunt. 159. So if the surrender of (s) Price v. Street, Barnes, 102. 
 
 the defendant be dispensed with by (t) Meekins v. Smith, 1 H. Blac. 
 
 the plaintiff. See West v. Ashdown, 629. 
 
 1 Bing. 164; 7 Moore, 566, S, C. (u) Flight y. Stanley, Tidd's Prac. 
 
 See also Bowsfield J). Tower, 4 Taunt. 8th edit, where a distringas issued 
 
 456 ; Crofts v. Johnson, 1 Marsh, 59 ; against the Bishop of Durham, being 
 
 5 Taunt. 319, S. C. a peer. 
 
 (q) R. T. 31 Geo. 3, K. B. 4 T. (.r) ■ t>.The Mayor of Wigan, 1 
 
 R. 379. And see 1 Bulstrode, 70. Sid. 92. 
 
 (!•) Rex V, Sheriff of Middlesex, 4 (y) See ante, 84.
 
 172 sheriff's duty on a bailablf capias. 
 
 SECT. IV. 
 
 CHAP. VI. in London nnd Middlesex (s), and an eight-day rule in every 
 other county (a). The only mode of complying witli the rule, 
 is either by bringing the defendant into court, or putting in and 
 perfecting bail. If the defendant is not in custody, or special 
 bail put in and perfected, the sheriff is liable to be attached for 
 not bringing in the body. The sheriff' has the whole of the day 
 on which the rule expires to bring in the body ; therefore an 
 attachment cannot be moved for until the day after ; or if the 
 rule expire on the last day of the term, not until the second day 
 of the next term. 
 
 And now, by R. G., H. T. 1 Vict., it is ordered that in all cases 
 special bail may be justified before a judge at chambers, both in 
 term and vacation (b). 
 
 Where two days' (c) time was given to justify, and bail was 
 not justified on the last of those two days, an attachment was 
 allowed to issue on that day. If the sheriff' show that the de- 
 fendant has been rendered in discharge of his bail, and is then 
 in custody, this is a sufficient compliance with the rule (d). 
 Even if the defendant be not in custody at the return of the writ, 
 the sheriff" may put in bail for the defendant, and those bail may 
 take and render him without justifying (e), but they must not 
 take him before the time for putting in bail has expired (y). 
 
 If the time limited has expired, and the rule or order has not 
 been obeyed, the contempt is not purged by rendering the de- 
 fendant, or by putting in and perfecting bail on a subsequent 
 day, although before the attachment is moved for (g-). H cepi 
 corpus is returned to a writ of capias, without either a rule or 
 an order to return the writ, the sheriff' may still be ruled or 
 ordered to bring in the body, and may be attached for dis- 
 
 (s) R. T. 6 Geo. 3, K. B. ; R. II. regular ; Rex v. Sheriff of Middlesex, 
 
 7Geo. 3, C. P. 2 Dowl.&Ry.225. And see Rex i;. 
 
 (a) R. G., M. T. 7 Will. 4, ante, Sheriff of London, 1 Chit. Rep. 567. 
 p. 84. Formerly it was a six day (d) Rex ti. Sheriff of Middlesex, 8 
 rule in every other county; R. G. 5 T. R. 464 ; 2 M. & S. 562. 
 & 6 Geo. 3. K. B. (e) Berchere v. Colson, Stra. 876 ; 
 
 (b) R. H. T. 2 Will.4, r. 17,was Rex r. Butcher, Peake'sN. P. C. 169; 
 annulled by this rule. 7 T. R. 527 ; Evans v. Swete, 2 Bing. 
 
 (r) 1 Chit. Rep. 356. Where bail 271. 
 
 were rejected after time given to in- (/) Taylor y. Evans, 1 Bing. 367 ; 
 
 quire into their sufHciency, and the 8 IMoore, 398, S. C. 
 
 defendant was rendered on the same ( g) R. G., H. T. 3 Will. 4; Smith 
 
 day, but before notice of render an v. Andrews, 2 M. 6c W. 536 ; R. u, 
 
 attachment was moved for and grant- Sheriff of Middlesex, 2 Dowl. 432 ; R. 
 
 ed, the attachment was held to be d. Sheriff of Middlesex, 3 Uovvl. 186.
 
 ATTACHMENT. 
 
 173 
 
 obedience under the R. H. T. 3 Will. 4, just as though the re- chap. vi. 
 
 1 1 /7 \ SECT. IV. 
 
 turn had been made under a rule or order {li). 
 
 Wliere the rule to bring in the body expires in vacation, or 
 on the last day in term, the sheriff has all the first day of the 
 next term to comply with the rule, and an attachment granted 
 on that day is irregular (i) ; and although a sheriff may be in 
 contempt, yet it appears to be the practice of the Courts of 
 Queen's Bench and Common Pleas, that if the defendant be ren- 
 dered, and notice thereof be given, or bail be justified before 
 the attachment is moved for, the sheriff is not liable to an 
 attachment (j). The Court of Common Pleas have refused to 
 allow any advantage to be taken of the priority of motion on the 
 same day ; therefore, if bail be brought up on the same day on 
 which an attachment has been obtained against the sheriff, that 
 court will permit them to justify and set the attachment aside (k). 
 But where the defendant died before an attachment issued, but 
 after the sheriff was in contempt, the attachment was held 
 regular (I). The sheriff should, as soon as he is served with 
 the rule to bring in the body, give notice thereof to the bail and 
 the defendant, in order that bail may be put in and perfected, 
 or the defendant be rendered in discharge of his bail, which being 
 done the rule is complied with. Where the sheriff is ruled to 
 bring in the body, he is bound to obey the rule, even though 
 the plaintiff's proceedings have been stayed by injunction (?«). 
 
 If on the expiration of the rule to bring in the body, bail or iheat- 
 above be not put in and perfected, or the defendant be not in wLITami' 
 custody, the court on motion will grant an attachment against •'°"' g""'«<'- 
 the sheriff (?i). Or formerly, before the Uniformity of Process 
 Act, if the process were by original, and bail were put in with 
 the filacer of a wrong county, this being held no bail, the court 
 
 {h) Bertrams. Davis, 6 Dowl. 180. stmcting to move for the attachment 
 
 (i) Rex V. Sheriff" of Middlesex, 8 where the bail justify before the motion 
 
 T. R. 464. for the attachment is made ; Rex v. 
 
 (/) Thorold v. Fisher, 1 li. Blac. Sheriff of Middlesex, 1 Taunt. 56. 
 9 ; Turner v. Bristow, 2 Bos. & Pul. (/) Rex v. Sheriff of Middlesex, 
 
 38 ; Weddall u. Berger, 1 Bos. & Pul. 3 T. R. 133 ; sed vide cases last note. 
 325; Rex D. Sheriff of Middlesex, 2 (m) Rex v. Sheriff of Middlesex, 
 
 Maule & Bel. 562 ; bed vide Anon. 1 1 Dowl. 454. 
 Chit. Rep. 567. («) 2 Saund. 61, that is if the rule 
 
 (k) Turner v. Bristow, 2 Bos. & expire in term on the day after the ex- 
 
 Pul. 38. In such case the plaintiff is piration of the rule, if on the last day 
 
 entitled to his costs in moving for the in term on that day, 11 East, 191 ; if 
 
 attachment; id. ibid.; Jarrati). Creasy, in vacation, on the second day of the 
 
 3 Bos. & Pul. 603. The costs of in- next term, 8 T. R. 464.
 
 174 
 
 SHERIFF S DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI, 
 SECT. IV. 
 
 would grant an attachment (o). The attachment is a criminal 
 process, directed to the coroner, when it issues against the pre- 
 sent sheriff, or to the present sheriff" when it issues against the 
 late sherifr(;}). Where the coroner is the defendant in the 
 cause, the attachment against the sheriff must issue to elisors 
 in the first instance (q). Until the attachment is granted, it is 
 on the plea side of the Court of Queen's Bench ; but as soon as 
 the attachment is granted, the proceedings are on the crown side 
 of that court (j). The motion for the attachment must be 
 grounded on an affidavit of the service of a copy of the rule, 
 and that the original was shown at the same time ; and also that 
 no bail has been put in, or that bail has been put in but not 
 justified. And in the case of a judge's order to bring in the 
 body, the affidavit should also state that the order was made 
 a rule of court in the term next following the order. In the 
 Queen's Bench and Exchequer, it seems that the judge's order 
 may be made a rule of court, and an attachment for not obeying 
 it obtained in one motion, but it seems otherwise in the Common 
 Pleas ; and in the Queen's Bench it seems to be necessary to 
 have two rules (s). Where there are two defendants in one writ, 
 and separate rules have been given to bring in the body of each 
 defendant, it is proper to issue two attachments against the sheriff 
 for not obeying those rules (t). 
 
 If any of the proceedings against the sheriff be irregular, the 
 court will set aside the attachment ; so if any of the proceedings 
 on the part of the plaintiff relative to bail be irregular, the court 
 will set aside an attachment granted against the sheriff. But 
 the sheriff cannot be relieved on account of the defendant's 
 death after the contempt incurred, but before the attachment 
 issued (u). 
 Or for laches If the plaintiff has not moved for his attachment within a 
 the'pufntiff?'^ reasonable time, the court wall set it aside, for by such delay 
 
 Attachment 
 will be set 
 aside for 
 irregularity. 
 
 (o) Ilex V. Sheriff of Middlesex, 
 1 Cliit. Rep. 237 ; Smith v. Miller, 
 7T.R.96; Harris v. Calverl, 1 East, 
 603 ; sed vide Rex v. Slietiff of Mid- 
 dlesex. 3 Maule & Sel. 532. 
 
 (p) Tidd's Prac. 314, 8th edit.; 
 Chit. Aichb. Prac. 556, 7th edit. 
 
 (q) Reg. V. Sheriff of Glamorgan- 
 shire, 1 Uowl. N. S. 308. 
 
 (r) 1 Tidd's Prac. 314, 8th edit. 
 
 (s) Barnard v, Berger, 1 N. R. 
 121 ; Rex v. Smithies, 3 T. R. 351. 
 In this last case, the court allowed the 
 plaintiff' to make a supplemental affi- 
 davit ; Arch. 556, 7th edit. See form 
 Append, to chap. 
 
 (t) Constable I'. Brislow, 8 Moore, 
 162. 
 
 (n) 5 T. R. 134; sed vide 2 Maule 
 lS: Sel. 562.
 
 SECT. IV. 
 
 ATTACHMEKT. 
 
 the sheriff may be deprived of his remedy against the party, chap 
 Thus where, an attachment having been obtained on the 19th . 
 November, at the desire of the sheriff's officer the attachment 
 was not then sued out, nor was it sued out and served on the 
 sheriff until the 19th of March following, the court set aside the 
 attachment as irregular (x). So where an attachment was 
 granted against the sheriff for not bringing in the body on the 
 11th of February, returnable on the 4th of May, and was not 
 issued till the day before; in the mean time, on the 19th of 
 March, the defendant became bankrupt ; the court set aside the 
 attachment on account of the laches of the plaintiff (y). Lord 
 Ellenborough, in giving his opinion, said, " there is no occasion 
 to lay down any general rule with respect to the lapse of time 
 which shall be deemed sufficient to discharge the sheriff from 
 the attachment in these cases ; but certainly eighty days exclu- 
 sive is a long time to lay by after the party is armed with the 
 process of the court against the sheriff: and here, in the mean 
 time, an important change of circumstances has taken place by 
 the bankruptcy of the defendant." For the same reason, it is 
 holden that a cognovit taken for payment of the debt and costs 
 by instalments discharges the sheriff, although it was agreed 
 that the right of moving for an attachment against him should 
 remain with the plaintiff as a security, in case any of the instal- 
 ments should not be paid {z). But where the plaintiff, at the 
 desire of the sheriff's officer, forbore to enforce an attachment, 
 and two days afterwards applied to the sheriff for the debt and 
 costs, the Court of Common Pleas held that the sheriff was not 
 discharged by the indulgence given to the officer, it not appear- 
 ing that the sheriff was prejudiced by the delay (a). Where the 
 plaintiff had agreed to delay proceedings for a month, at the 
 instance of one of the bail, on payment of debt and costs ; the 
 action not being settled, an attachment was obtained against 
 the sheriff, which the court refused to set aside on the appli- 
 cation of the bail (b). Where the rule to bring in the body 
 
 (x) Rex D. Perring, 3 Bos. & Pul. Bing. 164 ; 7 Moore, 566, S. C; 
 
 151. Bousfield v. Tower, 4 Taunt. 456, 
 
 (y) Rexv. SheriffofSurrey,9East, Crofts i'. Johnson, 1 Marsh. 59; 5 
 
 467 ; and see Rex v. Sheriffs of Lon- Taunt. 319, S. C. 
 
 don, 2 Chit. Rep. 58; Rex i;. Sheriffs («) Rex v. Sheriffs of London, 1 
 
 of London, 1 Dowl. & Ry. 163. Taunt. 489. 
 
 (z) Rex J). Sheriff of Surrey, ITaunt. (I>) Rex y. Sheriff of Middlesex, 1 
 
 159; see also West v. Ashdovvn, 1 Dowl. & Ry. 388. 
 
 175
 
 176 sheriff's duty on a bailable capias. 
 
 CHAP, VI. expired on tlie second day of Michaelmas term, during the vaca- 
 sECT.rv. jj^j^ ^^j.gj. ^j^g service of the rule, a judge's order was obtained 
 by consent to stay proceedings, on payment of debt and costs 
 within a month : on a motion to discharge an attachment for not 
 bringing in the body, the Court of Common Pleas was equally 
 divided in opinion, whether the sheriflfvvas discharged or not (c). 
 Where defendant obtained a summons for payment of debt and 
 costs, returnable on the same day as the day on which tiie de- 
 fendant should have justified bail, which summons the plaintiff's 
 attorney failed to attend, the summons was renewed for the next 
 day, on which an attachment was obtained against the sheriff, 
 which was set aside for irregularity (d). Since the stat. 1 & 2 
 Vict. c. 110, the plaintiff does not waive his right to an attach- 
 ment by declaring in chief (e). And the capias being now a mere 
 collateral proceeding, it seems that the court would in all cases 
 set aside the attachment on putting in and perfecting bail, or pay- 
 ment into court in lieu of bail, or render and payment of costs (/). 
 Regular Also, whcre the attachment is regular, it may be stayed or 
 
 on what ' set aside by the favour and indulgence of the court, in order to 
 aside! '*^ let in a trial of the merits, or for the benefit of the sheriff, or 
 of the defendant, or his bail (^). Formerly, if the plaintiff had 
 not lost a trial, the court would set aside a regular attachment 
 upon putting in and perfecting bail above, on payment of 
 costs (h). But if a trial had been lost, the court would further 
 require that the attachment should remain in the office, and 
 stand as a security to the plaintiff for the sum recovered (i). 
 And it seems that the attachment would stand as a security as 
 
 (c) Rex V. The late Sheriff of Mid- ing judgment of, the term in wiiich the 
 dlesex, 2 Bing, 366. writ was returnable. According to ihe 
 
 (d) Rex V. Sheriff of Middlesex, 5 pracliceoflheCourtsof Queen'sBench 
 Bar. & Aid. 746. and Common Pleas, a trial was not 
 
 (e) Reg. u. Sheriff of Montgomery- considered to be lost unless the plain- 
 shire, I Dowl. N. S. 388; 9 M. & tiff had declared rfe 6p»e esse; 5 Taunt. 
 W. 448, S. C. 608. So decided in K. B., Hil. 5 & 
 
 (/) Ante, p. 167; Chit. Archb. 6 Geo. 4. Now, however, (since the 
 
 569, 7th edit. 2 Will. 4, c. 39,) there can be no 
 
 (g) See Stride !;• Hill, 1 ftl. & W. declaration deftejje esse; andtheplain- 
 
 37. tiff, moreover, cannot be prevented 
 
 (h) Hill V. Bolt, 4 T. R. 352 ; from proceeding lo trial by the default 
 
 Callan v. Tye, 2 H. Blac. 235. of the bail to the sheriff, or of the she- 
 
 (i) Phillips V. Whitliead, 1 Chit. riff, because the original action, being 
 
 Rep. 270. The technical term, " lost commenced by wrii of summons, may 
 
 a irial," signified that by the neglect go on, though the sheriff do not bring 
 
 of the defendant to perfect bail in due in the body, i. e, put in bail above, or 
 
 time, the plaintiff had been prevented the bail to llie sheriff do not put in and 
 
 from trying his cause in, and obtain- perfect special bail. Ante, p. 167.
 
 OF THE ASSIGNMENT OF THE BAIL-BOND. 177 
 
 well as the bail-bond, where a trial had been lost, although the chap. vi. 
 
 defendant had been surrendered in discharge of his bail (j). '. — 1_ 
 
 The Court of King's Bench refused to discharge so much of a 
 rule to set aside an attachment as required it to stand as a 
 security, at the instance of the sheriff, on the ground of his 
 being no party to the rule in the ensuing term, the application 
 being too late (k). But when the sheriff has been guilty of a 
 breach of duty, in discharging the defendant out of custody 
 without the plaintiff's assent, and without taking a bail-bond (Z); 
 or where he has taken a bail-bond with one surety only(rrt), or 
 an undertaking for the appearance of defendant (n), the courts 
 will not set aside a regular attachment. But where by affidavits 
 it appeared that the omission to take a bail-bond was by mis- 
 take, on an application by the defendant the court set aside the 
 attachment, on the terms of its remaining in the office as a 
 security (o). 
 
 By a rule of the Court of King's Bench («), and by a similar Affidavit 
 
 •'. ° \: J' J required in 
 
 rule in the Exchequer (q), " No rule shall be drawn up for moving to 
 setting aside an attachment regularly obtained against a she- regnUr at- 
 riff for not bringing in the body, or for staying proceedings 
 regularly commenced on the assignment of any bail-bond, 
 unless the application for such rule shall (if made on the 
 part of the original defendant) be grounded upon an affidavit 
 of merits, or (if made on the part of the sheriff, or bail, or any 
 officer of the sheriff) be grounded upon an affidavit showing 
 that such application is really and truly made on the part of the 
 sheriff, or bail, or officer of the court, (as the case may be), at 
 his or their own expense, and for his or their indemnity only, 
 and without collusion with the original defendant :" and such 
 affidavits are necessary also by the practice of the Court of Com- 
 mon Pleas (r). In swearing to merits, an affidavit that the 
 
 O) 1 Chit. Rep. 270, n. 2 Marsh. 261, S. C. 
 
 (k) Lee V. Gary, 1 Chit. Rep. 180. (m) Rex i-. Sheriffs of London, 2 
 
 (0 Vanderhadeni). BiiUen,4 Dow. Bing. 227. 
 
 6 Ry. 155; Rex v. Sheriff of Suiry, (n) Fuller u. Presi, 7 T. R. 109. 
 
 7 T. R. 239; Collins v. Snuggs, 6 (o) Tuinbuil v. iMoreton, 1 Chit. 
 Moore, 111; Rex d. Sheiiffs of Lon- Rep. 721. 
 
 don, 2 B. & Aid. 354; 1 Chit. Rep. (/>) Reg. Gen. M. T. 59 Geo. 3, 
 
 68, S. C; Rex v. Sheriffs of Lon- 2 B. & Aid. 240; 1 Chil. Rep. 
 
 don, ibid. 567 ; Ibbotson v. 'I'indal, 348, n. (a). 
 
 1 Bing. 156; 7 Moore, 552, S. C. (q) H. T. 7 W. 4, 2 M. & W. 
 
 And see 1 Bos. & Pul. 225 ; 2 Bos. & 219. 
 
 Pul. 35, 246; I Esp. 87; 7 East, (r) Haidisty v. Slorer, 1 N. R. 
 
 606; 1 Taunt. 119; 6 Taunt. 554; 123. 
 
 tacliment.
 
 178 
 
 SUERII-F S DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. defendant has a ffood defence to the action is not sufficient, it must 
 
 SECT IV o «/ 
 
 state a good defence on the merits (s). An affidavit of merits 
 
 must be made by the defendant himself (<), or by his attorney 
 or agent, and if the affidavit be made by the attorney, it must 
 show that he is the attorney for the defendant (u) ; and when 
 such an affidavit is made, it is not necessary to state in the 
 affidavit on whose behalf the application is made {x). 
 
 The application may be made by one of the bail on his own 
 affidavit, without an affidavit from the other ha'i\(y). Where, 
 in an affidavit on behalf of the sheriff', the word "protection" 
 was used for " indemnity,'' the affidavit was held to be insuffi- 
 cient (s). And where the affidavit on behalf of bail stated that 
 the application was made their " only indemnity," instead of for 
 their " indemnity only," it was held insufficient (a). On an 
 application by an officer, he need not deny collusion with the 
 bail (6). If the affidavit be defective, the court may allow it to 
 be amended (c). 
 
 Estentofihe If the court will not set the attachment aside, the sheriff" is 
 
 slieiifF's liabi- 
 lity on ihe liable to the extent of the sum really due from the defendant to 
 
 attachment. ii--/v.iii-ti ii i 
 
 the plaintm, although it be beyond the sum sworn to, and 
 costs (d) ; but where a bail-bond has been taken, the sheriff* is 
 not liable beyond the penalty of the bond(e) and the costs of the 
 attachment (f). And where several actions were brought at 
 the same time against the acceptor, drawer, and indorser of a 
 bill of exchange ; in the action against the acceptor, the sheriff" 
 was attached for not bringing in the body, but the court relieved 
 
 (s) Grotlick v. Bailey, 5 Bar. & C^) Reg. «. Sheriff of Middlesex, 8 
 
 Aid. 703; 1 D. & R. 155, S. C. ; A. & E. 938. 
 
 see also Rex d. Sheriff of Middlesex, (a) Reg. v. Sheriff of Cheshire, 6 
 
 1 Dowl. 398 ; Lane v. Isaacs, 3 Dowl. 709 ; 3 M. & W. 605, S. C. 
 
 Dowl. 652; Tate v. Bodfield, ihiJ. (ft) Rex v. Sheriff of Middlesex, 3 
 
 218; Page v. South, 7 Dowl. 412; Dowl. 194. 
 
 Bower i;. King, 1 Dowl. 282; Hallett (c) Reg, v. Sheriff of Cheshire, 
 
 V. Aubrey, ibid. 688; Crossby v. supra; Call v. Thelwell, 3 Dowl. 
 
 Innes, 5 Dowl. 566 ; Scholefield v. 444; 1 C. M. & R. 780, S. C. 
 
 Huggins, 3 Dowl. 427 ; Bromley v. (d) Heppel v. King, 7 T. R. 370 ; 
 
 Gerish, 1 Dowl. & L. 768. Stevenson v. Cameron, 8 T. R. 29; 
 
 (0 Rex r. Sheriff of Middlesex, 1 Fowldsr. ftlackintosh, 1 H. Blac.233; 
 
 Chit. Rep. 347. see also Rex t'. Sheriff of Middlesex, 
 
 (u) Bormefor v. Russell, 5 Dowl. ibid. 543. 
 
 546. (e) Rex v. Sheriff of Middlesex, 3 
 
 (.r) Bell V. Taylor, 1 Chit. Rep. East, 604 ; and see the cases cited ia 
 
 572. the last note. 
 
 (y) Rex V. Sheriff of Middlesex, 3 (/') Rex v. Sheriff of Devon, 1 B. 
 
 Dowl. 186. & Adol. 159.
 
 RULE TO RETURN THE WRIT. 179 
 
 the sheriff on payment of the sum due on the bill, and the costs chap. vi. 
 in that action only (g). The statute of 43 Geo. 3, c, 46, s. ^^^^' ^''- 
 2, made no difference in the extent of the liability of the 
 sheriff, where he has not taken money on the arrest under that 
 act ; in such case, now, as before that act, he can only relieve 
 himself on payment of debt and costs (/«). 
 
 If the sheriff has taken a bail-bond, and is obliged to pay the What re- 
 debt and costs by reason of the defendant's nonappearance, he shtrui has 
 may reimburse himself by bringing an action on the bail- obuged'to^ 
 bond(2); but if the sheriff has not taken a bail-bond on the J^il^ colts on' 
 arrest, he cannot maintain an action for the money paid by him 
 under the attachment(^-), nor can he detain the defendant in 
 custody for it (/\ Where the defendant has put in but not 
 justified bail, and to an action on the bail-bond pleads comperuit 
 ad diem, the court will order the recognizance to be struck off 
 the file (m). The Court of Common Pleas, in one case, on motion, 
 ordered the date of the defendant's appearance to be entered in 
 the filacer's book, after issue joined on the plea of comperuit ad 
 diem in an action on a bail-bond (w). 
 
 the attach- 
 nienl. 
 
 Section V. 
 
 j4ctions against the Sheriff for Escape, ^'C. 
 
 If the sheriff arrest the defendant, and discharge him without What shall 
 taking a bail-bond, but have him not at the return of the writ, es'cape. 
 it is an escape (o) ; and if the defendant be in the sheriff's 
 custody at the return of the writ, but be afterwards allowed to 
 go at large without the consent, or without the order of a court 
 of competent jurisdiction, or if the defendant be rescued from 
 the county gao\{p), or if, being in custody in the county gaol 
 
 (g) Rex V. Sheriffs of London, 2 (/) Rimmer v. Turner, 3 Dowl. 
 
 Bar. & Aid. 192. 601. 
 
 (h) Rex V. Sheriffs 'of London, 9 (m) Leigh y. Bertles.l Marsh. 520; 
 
 East, 316. 6 Taunt. 167, S. C. 
 
 (i) The money is generally paid by (n) y\uslen v. Fenton, 1 Taunt. 23. 
 
 the officer on the attachment, who (o) See Bac. Abr. Escape (D; ; 
 
 brings the action on the bail-bond in Com. Dig. Escape (B); Cro. Jac. 
 
 the name of the sheriff. 419 ; S. C. 1 Roll. Rep. 388, 440, 
 
 (fc) Pitcher v. Bailey, 8 East, 171. (p) See ibid. ; Stra. 435. 
 
 N 2
 
 180 SHERIFr's DUTY ON A BAILABLE CAPIAS. 
 
 CHAP. VI. after the writ is returnable, he be taken from the gaol to another 
 
 ' place in the same county, even in the gaoler's custody (q), it is 
 
 an escape, although for such escape no action will lie against the 
 
 sheriff, unless the plaintiff has sustained some actual damage, 
 
 either from having been delayed in his suit or otherwise (r). 
 
 Re-caption. Before the Uniformity of Process Act, if the sheriff allowed 
 a person arrested by him on mesne process to go at large, he 
 might retake him at any time before the return of the writ (s) ; 
 but since the Uniformity of Process Act, the day of the execu- 
 tion of the writ being the return day of it, it seems that the re- 
 capture ought to be on thatday(i); and even afterwards the 
 sheriff may put in bail at the return of the writ, which bail may 
 take and render the defendant (ic) ; or if the defendant escape 
 out of custody, without the privity of the sheriff or his officer, 
 he may be retaken either before or after the return of the writ 
 on fresh pursuit (x), even on a Sunday (?/), or although he has 
 been declared a bankrupt after his escape, and at the time of 
 the retaking had the protection from arrest giving him by the 
 commissioners (2) 3 but after the sheriff has discharged the 
 defendant with the consent of the plaintiff, he cannot retake him 
 for his fees (a). If a person obstructs the sheriff from retaking 
 a person after his escape, the court will grant an attachment for 
 such obstruction (ft). 
 
 Escape- It may not be an improper place to introduce here the provi- 
 
 sions of the statute of 1 Anne, c. 6, respecting escape-warrants. 
 By that statute it is provided, that if any person in the King's 
 Bench or Fleet Prisons, in execution or on mesne process, or 
 upon contempt for not performing orders or decrees (c), shall 
 escape from such prisons, a judge of the court from which he 
 
 ((/) Williams v. Mostyn, 4 M. & lort). Evans, 1 Bing. 367 ; 8 Moore, 
 
 W. 145. 398, S. C. 
 
 (r) Ibid.; I'lanck v. Anderson, 5 (x) Com. Dig. Escape (E). 
 
 T. R. 37; Randell v. Wheble, 10 A. (y) Anon. 6 Mod. 231, 95. 
 
 & E. 719 ; Brown v. Jarvis, 1 M. & (s) Anderson v. Hampton, 1 B. & 
 
 W. 704 ; see also Wylie v. Birch, 4 Aid. 308. 
 
 Q. B. 566 ; 3 G. & D. 629, S. C. (a) Willing v. Goad, Stra. 909. 
 
 (s) Atkinson v. MaUeson, 3 T. R. (b) See Miller v. Knox, 4 Bing. 
 
 172 ; see also Fuller v. Prest,7 T. R. N. C. 574 ; Arch. 545, 7lh edit. 
 
 109. (c) On an attachment against A., 
 
 (t) Chit. Arch. 543, 7th edit. B. opposes the execution, and is com- 
 
 (u) Rex V. Butcher and others, milled for contempt : this is not a con- 
 
 Peake, N. P. C. 169; Evans t;. Swete, tempt within this act; Hinchliffe v. 
 
 2 Bing. 271 J Berchere v. Colson, Payne, Stra. 99. 
 Stra. 876 ; see also 7 T. R. 572 ; Tay - 
 
 warrant.
 
 ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 181 
 
 CHAP. VI. 
 SECT. V. 
 
 was committed (c?), on the oath of one or more credible wit- 
 nessses (e), may grant an escape-warrant, on the apph'cation of 
 any person whatsoever who may demand the same, which war- 
 rant is to have effect all over England ; and every sheriff in his 
 respective county has power to execute it in his county, and to 
 commit him to the county gaol, to be kept without bail or main- 
 prize (/), until judgment be satisfied or reversed, or the con- 
 tempt, whereon he was committed, purged, or until he have 
 verdict in his favour (g), if committed on mesne process. 
 
 Where the plaintiff proceeds against the sheriff by action, it is 
 usual to insert three counts in the declaration: 1st, for an 
 escape ; 2dly, for not arresting the defendant ; Sdly, for not 
 assigning the bail-bond on request. 
 
 Where the defendant has been arrested, and has given a bail- For what 
 
 ,,_,. , /-i-ii i. flefault the 
 
 bond for his appearance at the return ot the writ, and does not sheriff is 
 appear, the sheriff is not liable to an action for an escape, for he a'ctio^n." 
 was obliged by the statute to take bail (/*). The only mode of 
 proceeding in such case against the sheriff is by attachment. 
 And where the plaintiff was told by a clerk, on application at the 
 sheriff's office, that no bail-bond had been taken, and brought 
 an action for an escape against the sheriff, but had no count in 
 his declaration for not assigning the bail-bond, and it appeared 
 in evidence that a bond had been taken, the plaintiff was non- 
 suited, which nonsuit the court refused to set aside (i). But if 
 the defendant have not given a bond, and bail be not put in and 
 perfected in due time, or the defendant be not in custody at the 
 return of the writ, the sheriff is liable to an action for an es- 
 
 (d) If the defendant bas been turn- will supersede an escape- warrant ob- 
 
 ed over from the King's Bench to the tained thereon ; Webb v. Thorapson, 
 
 Fleet by the Court of Common Pleas, 1 Stra. 401. 
 
 a judge of either court may grant the (/^) Posterne i;. Hanson, 2 Saund. 
 
 warrant ; Rex v. Uunbar, 10 Cieo. 1, 61 ; Benson v. VVelby, ib. 154 ; Anon. 
 
 8 Mod. 240. 1 Vent. 55; Parker v. VVelby, ih. 85; 
 
 i^e) The oath may be taken before a Ellis v. Yarborough. 1 Mod. 227 ; 2 
 
 commissioner in the country ; 5 Ann. Mod. 177, S. C ; Grovenor v. Soame, 
 
 c. 9, s. 2. 6 Mod. 122 ; Kitton v. Fag, 10 Mod. 
 
 * (V) Nor can he be discharged on 288; Page v. 'I'ulse, 2 Mod. 83; 1 
 
 bringing the money into court, Mother- Mod. 240, 244, S.C; Bentiey v. Hoare, 
 
 shell V. Bows, 6 Mod. 21 ; nor shall 1 Lev. 86; Allen v. Pvobinson, 1 Sid. 
 
 he be allowed a day-rule. Cotton v. 22 ; Barton v. Aldeworih, Cro. Eliz. 
 
 Martin, 6 Mod. 63. 624. 
 
 (») Where, by the practice of the (») Mendez v. Budges, 5 Taunt, 
 
 court, the defendant was supersedable 325. 
 at the time of his escape, the court
 
 182 sheriff's duty on a bailable capias. 
 
 SECT. 
 
 CHAP. VI. capc(/t). And if the sheriff has taken a bail-bond on the 
 arrest, but the defendant do not appear at the return of the 
 writ, an action on the case will lie against the sheriff if he refuse 
 to assign the bail-bond on request (I). Also, if the officer will 
 not arrest the defendant when he has notice of his being in the 
 county, and he might have arrested him, the sheriff is liable 
 to an action on the case, provided the defendant do not appear 
 at the return of the writ, and provided also that the plaintiff 
 has sustained any damage by reason of the sheriff's neglect(»j). 
 The plaintiff is not, however, bound to give information to the 
 sheriff so as to enable him to arrest and identify the defend- 
 ant, for the sheriff himself is bound to make due inquiries after 
 the defendant for the purpose of finding him (n). But the 
 sheriff is not liable to an action for an escape for discharging a 
 defendant out of custody who was misnamed in the writ, 
 although he had assumed the name by which he was sued in 
 the particular transaction out of which the action arose (o). As 
 the duty of the sheriff is merely to have the defendant at the 
 return of the writ, an action against the sheriff will be defeated 
 if bail be put in before the expiration of the rule to bring in 
 the body, although after an action for an escape commenced (p). 
 And after an action commenced against the sheriff, the putting 
 in and perfecting bail of the term in which the writ is return- 
 able is an answer to such action (q) ; but bail put in of a subse- 
 quent term would be no answer to such action (r). And where 
 bail is put in to defeat an action commenced against the sheriff, 
 the plaintiff should oppose the justification (s) ; or if the bail 
 have been allowed to justify without opposition, the court, on 
 
 (h) Fuller V. Prest, 7 T. R. 109; (p) Pariente v. Plumbtree, 2 Bos. 
 
 Webbt). Matthews, 1 Bos. &Pul. 225; & Pul. 36; Murray v. Durand, 1 
 
 Atkinson v. Mattesou, 2 T. R. 176, Esp. 87. 
 177. (q) Allingham v. Flower, 2 Bos. 
 
 (0 Stamper v. Milborne, 7 T. R. & Pul. 246 ; but the bail must be 
 
 122. It is always advisable to de- perfected,! East, 607. Sed videWehh 
 
 mand an assignment of the bail-bond v, Matthew, 1 Bos. & Pul. 225, and 
 
 before commencing an action against the judgment of Gibbs, C. J., in Birn 
 
 the sherifF ; see Mendez v. Bridges, 5 v. Bond, 6 Taunt. 554 ; 2 Marsh. 261, 
 
 Taunt. 325. S. C. 
 
 (m) Brown v. Jarvis, 1 M. & W. (r) Moses ;;. Norris, 4 M. & Sel. 
 
 704 ; 5 Dowl. 285, S. C. ; Williams 397. 
 V. Mostyn, 4 M. & W. 145. (s) Fuller t;, Prest, 7 T. R. 109 ; 
 
 (n) Dyke v. Duke, 4 Bing. 197. Webb v. Matthew, 1 Bos.& Pul. 225. 
 
 (o) Morgan ?i. Bridges, 1 Bar. & See also Birn u. Bond, 6 Taunt. 554; 
 
 Aid. 647; a/ife, p. 70. 2 Marsh. 261, S. C.
 
 ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 183 
 
 motion, will set aside tlie allowance of bail on payment of the chap. vi. 
 
 costs of justification (?). But where the defendant was ren- ^ — ' 
 
 dered on the day of the expiration of the rule to bring in the 
 body, the Court of Exchequer refused to set aside the allow- 
 ance of bail obtained after an action commenced against the 
 sheriff for an escape, though no bail-bond had been taken, nor 
 bail above put in in due time (?<). 
 
 The venue in an action on the case for an escape is tran- 
 sitory (f). 
 
 In a declaration in an action against a sheriff for not perform- The deciara- 
 ing his duty, framed in either of the three ways above men- 
 tioned, it must be alleged that the plaintiff had a cause of action 
 against the defendant in the original action, otherwise the decla- 
 ration is bad on demurrer (x). But it seem.s to be sufficient to 
 allege generally that the plaintiff had a cause of action, without 
 minutely stating the cause of action with the same precision as 
 in an action against the defendant himself (?/). The declaration 
 must allege the issuing of the process and the delivery to the 
 sheriff within one month after such issuing, or it will, it seems, 
 be bad on special demurrer (2). A variance in the description 
 of the process in the declaration, in an action for not arresting the 
 defendant, or for escape on viesne process, or in any other action 
 against the sheriff for misconduct or negligence in executing 
 such process, is fatal (unless amended under 3 & 4 Will. 4, c. 
 42, s. 23) ; thus (when such writs were in use) where a latitat 
 in trespass, with an ac et'iam, was stated to be a latitat in a 
 plea of trespass, the variance was held fatal (a). And where 
 in the declaration it was alleged that the party was arrested 
 under a writ indorsed for bail by virtue of an affidavit now 
 
 (() How t. Lacey, 1 Taunt. 119; edit.; 2 Saund. 150; 8 Went. Ind. 
 
 Bosanquet V. Simpson, Tidd's Prac- xxxiii. Il is not necessary to state the 
 
 tice, 235, 8tl) edit. And see Leigh v. precise sum due, 2 Lev. 85 ; if the de- 
 
 Bertles, 1 INJarsh. 520. claiation state the debt to be for goods 
 
 (i() JVlorley u. Cole, 1 Price, 103. sold, it must be so proved, 2 Esp. 
 
 (t)) Griffith V. Walker, 1 Wils. 476; a declaration stating the debt 
 
 336; Gawdy's case, Dyer, 278 b ; to be for goods sold, &c., proof of goods 
 
 Anon. 2 Salk. 669, 670. sold on credit was held to be a fatal 
 
 ix) Gunter v. Cleyton, 2 Lev. 85 ; variance, 5 Esp. 102. 
 
 Alexander D. Macauley, 4 T. 11. 611; (s) 1 & 2 Vict. c. 110, s. 3 ; Ran- 
 
 2 Saund. 150 a, n. 1. dell v. Wheble, 10 A. & E. 719; 
 
 (j7) Com. Dig. Pleader (E) 18, 2 P. & D. 602, S. C. 
 
 2 P. 1 ; Lutw. 110. See the prece- (a) Gunter v. Cleyton, 2 Lev. 85 ; 
 
 dents, 2 Chitty's Pleading, 552, 7th Bull. N. P. 66.
 
 184 sheriff's duty on a bailable capias. 
 
 CHAP. VI. 071 record, but no affidavit was produced upon the trial, the 
 '^^^^' ^' Court of Common Pleas held that the plaintiff had been pro- 
 perly nonsuited (6). It is stifficient to allege that the writ was duly 
 indorsed for " bail," without adding " by virtue of an affidavit 
 made and filed of record(c)." But in an action for an escape, where 
 a latitat against Douner and two others, was stated as a latitat 
 against Douner and J. Doe, this was ruled to be no variance (d). 
 Where the declaration stated a writ " of the king," and on the 
 trial a writ was produced, properly tested as to the date and 
 the name of the chi f justice, but a mistake was made of 
 George the Third instead of George the Fourth, it was held no 
 variance {e). 
 
 The declaration should also specially allege that the plaintiff 
 has sustained damage by reason of the sheriff's default (/), and 
 that eight days have elapsed since such default (^o-). 
 Declaration In the action for an escape of a debtor on mesne process, it 
 
 foA^./e'scape. mwst be alleged in the declaration that the debtor was arrested, 
 and that the sheriff without the leave of the plaintiff allowed 
 him to go at large. Under an allegation that the sheriff volun- 
 tarily permitted the debtor to escape, a negligent escape may 
 be given in evidence, and vice versd (/«). 
 
 The precedents of declarations in actions for escapes usually 
 aver that the defendant in the original action did not appear or 
 put in special bail according to the exigency of the writ (i) ; 
 but it is sufficient to state that the sheriff had not the body of 
 the defendant in court at the return of the writ (A;). If the 
 sheriff has returned the writ, it is usual to state the return, 
 
 {}>) Webb D. Heme, 1 Bos. & Pul. {d) Hendray v. Spencer, cited in 
 
 281. Sed qiuere, see Williams v. The Rex v. Pippott, 1 T. R. 238. 
 
 Sheriff of Middlesex, Guildhall, 25lh (e) Elvin v. Drummond, 4 Bing. 
 
 July. 1817, belore Abbolt. J., note to 278; 1 M. & P. 88, S. C. 
 
 2 Chit. Pleading, p. 205, 3d edit. la (/ ) Kandell v. Wheble, 10 Ad. & 
 
 an action for escape, the declaration Ell. 719; 2 P. & D. 602 S. C. ; 
 
 staled the writ to have been indorsed Brown v. Jarvis, 1 M. & W. 704; 
 
 fir 24/., but the writ when produced Williams v. Mostyn, 4 M. & W. 145. 
 
 was 24/. and upwards, besides, &c., (g) Randell t'. Wheble, supra, 
 
 this was held no variance. And see (h) Sir Ralph Bovey's case, 1 
 
 Wi^ley D.Jones, 5 East, 440; Stark. Vent. 217 ; 3 Keb. 55, S. C; Bona- 
 
 on Evid. part 4, p. 1336, n. (o). The fons v. Walker, 2 T. R. 126; O'Neil 
 
 allegation that the debt was sworn to v. Marson, 5 Burr. 2812. 
 
 is unnecessary; Whiskard v. Wilder, (i) See precedents, 3 Went. 456, 
 
 1 Burr. 330. 482 ; 2 Chitt. Plead. 554, 7th edit. 
 
 (c) Nightingale v. Wilcoxon, 10 (A:) Appleton v. Burr, Cro. Eliz. 
 
 B. 8cC. 202; 4 Bing. 510, S. C, in 289; Stovin v. Perring, 2 Bos. &c 
 
 enor. Pu'. 561.
 
 ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 18c 
 
 but this seems to be unnecessary, as the escape is the gist of the chap. vi. 
 
 .,, SECT. V. 
 
 action (t). 
 
 In an action against a sheriff for not arresting the debtor in an action 
 when he had an opportunity, it should he alleged that the ing the de- 
 debtor was within the sheriff's bailiwick, and might have been 
 arrested if the sheriff had chosen so to do, yet the sheriff would 
 not, although often requested, arrest the defendant (??i). In 
 such action it is not necessary to allege that the sheriff had no- 
 tice that the defendant was in his bailiwick (?i). 
 
 The plea of not guilty, in an action for an escape on a bail- pieaa. 
 able capias, will operate as a denial of the neglect or default of 
 the sheriff or his officers, but not of the debt or preliminary 
 proceedings ; and in an action for not arresting, or for not as- 
 signing the bail-bond, the plea of not guilty will operate as a 
 denial only of the breach of duty or wrongful act alleged to 
 have been committed by the defendant, and not of the facts 
 stated in the inducement (o). If any of those facts, therefore, 
 e. g. the issuing of the writ, the delivery thereof to the sheriff, 
 the arrest, or the taking of the bail-bond, are denied, they must 
 be specially traversed. 
 
 In an action against a sheriff for an escape on mesne process Evidence in 
 
 1 1 !• \ such actions. 
 
 the plaintiff must (if called upon to do so by the pleaduigs) 
 prove the cause of action in the original suit, the issuing and 
 delivery of the writ to the sheriff within a month after the date 
 thereof(p), the arrest and the escape. In the action for not 
 arresting a debtor, he must in like manner prove the original debt 
 for which the process issued, the writ and delivery to the sheriff, 
 notice to the officer that the debtor was in his bailiwick, and 
 that he refused to arrest him. In the action for not assigning 
 the bail-bond, the same evidence of the debt, and of the issuing 
 and delivery of the writ to the sheriff, is necessary as in the two 
 preceding actions; and the arrest and the giving of the bail-bond, 
 with the demand and refusal to assign the bond, are also, if tra- 
 versed, necessary to be proved in order to support such action. 
 The plaintiff must prove his cause of action against the 
 
 (0 2 Saund. 155, n. (5). v. Macnamara, 5 Dowl. & Ry. 95. 
 
 (to) See precedents, 2 Chin. Plead. (o) Reg. Gen. H. T. 4 \V. 4. 
 
 340, 3d edit. ; 8 Went. 487, 501. ( ]>) Randell v. Wheble, 10 Ad. & 
 
 («) Dean and Chapter of Hereford Ell. 719 ; 2 P. & D. 602, S. C.
 
 186 sheriff's duty on a bailable capias. 
 
 CHAP. VI. debtor in the original action (q) ; and any evidence which would 
 
 '^'^^"^' ^- be admissible against the defendant in the original action will 
 
 Proof of the ^g evidence in the action against the sheriff (r) ; even an admis- 
 
 original cause ° . ^ p i j t_ 
 
 of aciioii. sion of tlie debtor as to the existence and amount of the debt, 
 made previously to the default, is evidence for this purpose ; 
 thus, where the debtor was sued as the drawer of a bill of ex- 
 change, proof of the acknowledgment by him that he received 
 notice of the dishonour, is evidence of that fact in an action of es- 
 cape against the sheriflr(s). So also, an acknowledgment of the 
 debt made after the arrest and before the escape would be evi- 
 dence against the sherifF(<). 
 Proof of Uie If the proccss has been returned and filed, an examined copy 
 issimig o le ^^ ^j^^ ^^.^ ^^^ return will be sufficient evidence of the issuing 
 and delivery of the writ(?i). If the writ has not been returned, 
 as regularly it ought to be, the plaintiff will have to establish 
 that fact by proof of the requisite search at the treasury ; and 
 after proving the delivery of the writ to the under-sheriff, or to 
 his deputy in London (x), or at the sheriff's office, and a notice 
 to produce the original, secondary evidence of the process will 
 be admitted (?/). 
 
 The indorsement by the sheriff of non est inventus is sufficient 
 evidence of the delivery of the writ to him (2). 
 Proof to In order to prove the default in the sheriff, he must be con- 
 
 sheriff with nected with the officer who suffered the debtor to escape, or who 
 refused to arrest him, by proving the issuing of a warrant from 
 the sheriff's office to arrest the defendant. 
 Proof of the In an action for an escape, direct evidence that the debtor 
 was in the custody of the sheriff or his officer, and by him suf- 
 fered to escape, must be given. The proof, however, of the 
 
 (a) Alexanders. Macauley, 4 T.R. Tildar v. Sutton, Bull. N. P. 66; 
 
 61 1; Parker v. Fenn, 2 Esp, N. P. C. M'Neil v. Richard, 1 Esp. N. P. C. 
 
 476, n. As to what has been held a 269 ; Jones v. Wood. 3 Camp. 229 ; 
 
 variance between the proof and the Fairlie t;. Birch, 3 Camp. 397. 
 statement of the debt, see ante, 183, (x) Woodland v. Fuller, 11 Ad. & 
 
 n.iy). 2 Lev. 85; Bull. N. P. 66; Ell. 859. 
 5 Esp. N. P. C. 162. (y) 2 Phill. Evid. 222. See also 
 
 (r) Gibbon v. Coggon, 2 Camp. Stark. Evid. part 4, 1335. As to 
 
 188 ; Sloman v. Heme, 2 Esp. N. P. what shall be a vaiiance between the 
 
 C. 695. allegation and proof of the process, 
 
 (s) Williams v. Bridges, 2 Stark. see ante, 183. 
 42. (z) Blatch v. Archer, Cowp. 63 ; 
 
 {t} Rogers v. Jones, 7 B. & C. 89, See also Cook v. Round, 1 M. & Rob. 
 
 Bayley, J. 512, Tindal, C. J. 
 
 (m) Blatch V. Arciier, Cowp, 63; 
 
 the oliicer. 
 
 escape.
 
 ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 187 
 
 sheriff's return of cep'i corpus, and that the party neither put in chap. vi. 
 
 bail above, nor was in the sheriff's custody at the return of the 
 
 writ, will dispense with such evidence (6). 
 
 The arrest may be proved by producing the sheriff's return 
 of ce^n corpus et jmratum habeo, and the latter words of the 
 return will not preclude the plaintiff from proving that the pri- 
 soner was at large after the return, and no bail-bond lodged 
 with the sheriff (c). It is no answer to a voluntary escape on a 
 bailable capias to say that the debtor was arrested by the plain- 
 tiff on a second capias directed to another sheriff, and that he 
 authorized his discharge from such second capias without a bail- 
 bond or deposit of the debt and costs (f/). 
 
 Proof that the officer had an opportunity to arrest the debtor Proof of 
 and neglected so to do, is necessary in the action for not arresting, a^rre'st de- 
 It is the officer's duty to search and make the arrest, therefore 
 if the debtor follows his daily occupation and does not abscond, 
 the sheriff is responsible ; the sheriff, or under-sheriff, or baihff, 
 who has the execution of the writ, must however be aware of 
 the fact that the defendant is within the county (e). The evi- 
 dence in such action generally is, that the bailiff was informed 
 where the debtor was to be found ; notice to the under-sheriff's 
 agent in town will not be sufficient notice to the sheriff(/). 
 
 The writ being, since the Uniformity of Process Act, return- 
 able immediately, the sheriff has not, as of course, the whole of 
 the iTionth from the issuing to execute it, but he must arrest as 
 soon as he reasonably can(^). Where the declaration was for 
 an escape, and the evidence was of a neglect to arrest, the judge 
 at nisi prius refused to allow an amendment under 3 & 4 Will. 4, 
 c. 42, s. 23, but allowed the case of negligent omission to arrest 
 to be proved, which was done, and the finding of the jury, with 
 sol. damages, was specially indorsed on the record under sect. 
 24, and the court afterwards gave judgment for the plaintiff ac- 
 cording to the right of the case, the variance being immaterial, 
 and the defendant not being prejudiced in his defence (A). 
 
 (h) Fairlie v. Birch. 3 Camp. 397 ; (e) 2 Phil. Evid. 222, 1st edit. ; 
 
 but a return of non est itnentus is Staik. on Evid. part 4, 1339. 
 
 only evidence of the delivery of the (/) Gibbon v. Coggon, 2 Camp, 
 
 writ to the sheriff ; Cowp. 65. See 189. 
 
 Adey v. Bridges, 2 Starkie, 189. (g) Brown v. Jarvis, 1 M. & W. 
 
 (c) Neck V. Humphrey, 3 Ad. & 704. 
 
 Ell. 130. (h) Guestt;. Elwes,5A.& E.118. 
 
 id) Woodman i-. Gist, 2 Jur. 942.
 
 188 sheriff's duty on a bailable capias. 
 
 CHAP. vr. In the action for not assigning tlie bail-bond, the fact that the 
 
 ^^'^■^' ^' debtor gave a bail-bond should be regularly proved. Notice to 
 
 Evidence of produce the bond should be given: and the request to assign it 
 
 not assigning ' . ° . 
 
 tiie bail bond, made at the under-sheriff's office, with the refusal, should be 
 
 proved. 
 Admissions xhc admissioHS of an escape by the under-sheriff are evidence 
 
 of the under- . 
 
 eheriff. in an action against the sheriff for an escape (i) ; but a mere 
 
 assertion at the under-sheriff"s office that no bail-bond had been 
 taken is not conclusive evidence of that fact in an action against 
 the sheriff (A:). The admissions of a sheriff's bound bailiff are no 
 evidence in an action against the sheriff, until the connection 
 between the sheriff and the bailiff be proved (/). But when 
 once the bailiff is identified with the sheriff by evidence, then 
 whatever the bailiff had admitted in evidence against the sheriff, 
 as admissions of the bailiff when asked by the plaintiff 's attorney 
 why he did not execute the writ, are evidence against the 
 sheriff (»i) : so declarations made by the bailiff whilst he has the 
 debtor in his custody, are evidence in an action against the 
 sheriff(w). 
 
 Proof on (he It is Competent for the defendant (the sheriff), the facts being 
 
 defendai'iu propcrly pleaded to enable him to do so, to show that bail above 
 were put in of the term in which the writ was returnable, or that 
 the defendant was rendered in due time (o). If the action be 
 brought for not arresting the debtor, or for an escape, the sheriff 
 may defeat the action by showing that he took a bait-bond on 
 the arrest (/;). But in such case he must prove that he took a 
 valid bail bond (q). 
 
 Damages. As the plaintiff, in an action for an escape, is only entitled to 
 
 recover what damages the jury choose to give him, he must prove 
 any damnification that he has sustained by the sheriff's de- 
 fault (r). And he must prove some damnification, to enable 
 him to recover at all (.v). 
 
 (i) Yabsley v. Doble, 1 Ld. Raym. (o) Allingham v. Flower, 2 Bos. & 
 
 190; 2 Phill, Evid. 218, 1st edit. Pul. 246. 
 
 (k) Mendez v. Bridges, 5 Taunt. (p) Mendezi;. Bridges, 5Taunt.325. 
 
 325. (<j) Holden v. Raphael, 4 A. & E. 
 
 (/) Drake v. Sykes, 7 T. R. 113. 228. 
 
 (m) North v. Miles, 1 Camp. 389. (r) Barker v. Green, 2 Bing. 317. 
 
 (n) Bowsher v. Galley, I Gamp. (s) Williams i). Mostyn, 4 M.&; W. 
 
 391, n. 145.
 
 ( 189 ) 
 
 CHAPTER VII. 
 
 CAPIAS AD SATISFACIENDUM. 
 
 Sect. I. — In what Cases it lies — The Arrest — The Sheriff's Duty 
 after the Arrest. — Poundage. — Return. — Prisoner, 
 how discharged. 
 
 Sect. II. — Escape. — What shall he said to he an Escape. — When 
 the Sheriff shall he excused. — Voluntary and neg- 
 ligent. — Of the Action for Escape; hy whom, against 
 whom, it lies. — Declaration. — Pleas. — Evidence. — 
 Action over, by the Sheriff for his Indemnity, where 
 the Defendant has escaped. 
 
 Section I. 
 Ca. Sa. how executed. 
 
 The writ of capias ad satisfaciendum is a writ of execution of ihe nature 
 directed to the sheriff, commanding him to take the body of the °* •''«-«"'"• 
 defendant, and him safely keep, so that he may have his body 
 in court immediately after the execution thereof, or on a return 
 day named in the writ, to satisfy the plaintiff. 
 
 The writ lies in all cases within a year from the time of the When it lies, 
 judgment where a capias ad respondendum would have lain before 
 the passing of the 1 & 2 Vict. c. 110 ; and in several cases 
 where a capias ad respondendum would not lie before the passing 
 of that statute (a). Thus a ca. sa. always lies against an attor- 
 ney, although before the passing of the 1 & 2 Vict. c. 110, an 
 attorney could not be holden to bail (h). An infant (c) or a feme 
 covert (d) is liable to be taken on a ca. sa. ; but if the judgment 
 
 (a) For the authority by which the (b) Chit. Aichb. Practice, 7th ed. 
 
 capias in the several actions is given, 449. 
 
 see Chitty's Archbold's Prac. 448,7th (c) Gardiner u. Holt,2Stra. 1217; 
 
 ed. And see IBac. Abr. Execution Madox j;. Eden, 1 Bos. & Pul. 480 ; 
 
 (C) 3. A r«. sa. does not lie in an see also Finlay v. Jovvle, 13 East, 6 ; 
 
 execution of damages in dower ; Tidd's Dow v. Clark, 2 Dowl. 302. 
 
 Prac. 1066, 8th edit.; 3 Salk. 286. (d) Tidd's Pr. 1066, 1067, 8th ed.
 
 190 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. VII, vvas obtained against the husband and wife (e), the courts will, 
 
 1— ° — in their discretion, discharge the wife if she be taken on a ca. 
 
 sa., unless she has separate property out of which the demand 
 can be satisfied ; but before she will be entitled to her discharge 
 it must appear that slie has no sucli separate property, or that 
 there is fraud and collusion between the plaintiff and her hus- 
 band to keep her in prison (./). Where grounds are shown for 
 supposing that the wife has separate property, the onus of 
 proving that she has none is thrown upon her, and she must in 
 her affidavit swear not only that she is not entitled, but also 
 that no person is entitled in trust for her (g). So also bail may 
 be taken in execution on a ca. sa. (h). So may executors or 
 administrators, if a devastavit has been returned (?), but not 
 otherwise (j). 
 When it does The 7 & 8 Vict. c 96, s. 57, enacts, " that from and after the 
 passing of this act, no person shall be taken or charged in exe- 
 cution upon any judgment obtained in any of her majesty's 
 superior courts, or in any county court, court of requests, or 
 other inferior court, in any action for the recovery of any debt 
 Where sum whercin the sum recovered shall not exceed the sum of twenty 
 nnrier'^2o;.'^ pounds, cxclusive of the costs recovered by such judgment(A:)." 
 And sect. 59 enacts, " that if at any time it shall appear to the 
 judge who shall try such cause, being either a judge of one of 
 the superior courts, or a barrister or attorney at law, that the 
 defendant, in incurring the debt or liability which may be the 
 subject of demand, has obtained credit from the plaintiff under 
 false pretences, or with a fraudulent intent, or has wilfully con- 
 tracted such debt or liability without having at the same time a 
 reasonable assurance of being able to pay or discharge the same, 
 or shall have made, or caused to be made, any gift, delivery, or 
 
 (e) Seciis, where the action was Clark, 2 Taunt. 1 13, and see2 Marsh, 
 commenced against the wife wlien 187, n. 
 
 sole, and judgment is, after her mar- (i) Chit. Arch. Pr. 7th ed. 882. 
 
 riagp, obtained against her in her (j) Ibid.; Ward v. Thomas, 2 
 
 name when sole; Beynon t). Jones, 15 Dowl. 87. 
 
 M. cSt W. 56f). {k) If the plaintiff sue upon the 
 
 ( f) See Chalk v. Deacon, 6 B. M. judgment for debt and costs, and in 
 128; Spaikes v. Bell, 8 B. & C. 3 ; that action recover to the amount of 
 Bayley, J., Hoad v. Matthews, 2 20/., the defendant may be taken in 
 Dowl, 149; Chit, Arch. Pr. 7th ed, execution on the judgment in that 
 449. action ; Hopkins v. Freeman, 13 M. 
 
 (g) Ferguson v. Clay worth, 6 Q.B, & W, 372 ; Joseph v. Buxton, 1 C. 
 269, B.221; Mason v. Nicholls, 14 M. 
 
 (/i) Goodchild v. Chaworlh, 2 Str. & \V. 118, 
 822 ; 3 Salk. 286 ; Troughton &
 
 HOW EXECUTED. 
 
 191 
 
 transfer of any personal property, or shall have removed or con- chap. vn. 
 
 cealed the same with an intent to defraud his creditors, or any '—^— 
 
 of them, it shall be lawful for such judge, if he shall think fit, to 
 order that such defendant may be taken and detained in exe- 
 cution upon such judgment in like manner and for such time as 
 he might have been if this act had not been passed, or for any 
 time not exceeding six calendar months in any case in which the 
 time for which a person taken in execution under process issuing 
 out of any such court could lawfully be detained in custody, 
 according to the constitution of the said court, before the passing 
 of this act, in less than six calendar months, whether or not exe- 
 cution against the goods and chattels of such defendant shall 
 have issued as hereinafter provided (I)." 
 
 But a ca. sa. does not lie against members of the royal family, ^1^^^"^ pPj'; 
 or their servants, against peers or peeresses, or members of the sons. 
 House of Commons during the time of privilege (m); and a ca. sa. 
 issued against a member of the House of Commons, in an action 
 of assumpsit, is irregular, even although it is issued in order to 
 ground proceedings to outlawry, and is delivered to the sheriff 
 with that view, and with a direction to be returned non est in- 
 ventus (n). Neither will a ca. sa. lie against ambassadors or 
 their servants (o) ; or against corporators or hundredors (p); or 
 against executors or administrators, for debts of their testators 
 or intestates, unless a devastavit be returned {q) ; or against an 
 heir for a debt to be levied of the lands descended (r) ; or against 
 seamen or soldiers in her majesty's service, unless in actions for 
 debts for 30/. or upwards, contracted before they entered the 
 service («) ; or against bankrupts who have obtained their certi- 
 ficates for any debt which might have been proved under their 
 commission if) ; or against persons discharged under the insolvent 
 
 (/) See 8 & 9 Vict. c. 127, and i;. Alexander, 9 Bing. 412. 
 
 9 & 10 Vict. c. 95. (o) See ante, p. 136. 
 
 (m) Ante, p. 134,135. See 1 Leon. (p) Chit. Arch. Pr. 7th ed, 449, 
 
 173; BartleU v. Hebbes, 5 T. R. 473; Tidd's Prac. 1066, 8th ed. 
 
 686. (q) Brooke's Abr. Execution, 12; 
 
 (n) Cassidyv. Sleuart, 2 Man. & Tidd's Prac. 1066, 8th edit.; Chit. 
 
 G. 437 ; see also Butcheri;. Steuart, 1 Arch. Pr. 882, 7th ed. ; Ward j;. Tho- 
 
 Dowl. N. S. 620. But where judg- mas, 2 Dowl. 87. 
 
 nient of respondeas ouster was given (»') 2 Saund. 7, n.(4). 
 
 onapleaof peerage, and judgment was (s) See the statutes and cases col- 
 
 afterwards obtained for the plaintiff, lected, Chit. Arch. Pr. 7th ed. 474, 
 
 the court refused to set aside a ca. sa. 475. 
 
 which was issued against the defend- (t) 5 «Si 6 Vict. c. 122, s. 42. 
 ant on an affidavit of peerage ; Digby
 
 192 CAPIAS AD SATISFACIENDUM. 
 
 SECT. 
 
 CHAP. VII. act(M), for debts contracted before such discharge; or against an 
 insolvent under the judgment entered up on the warrant of 
 attorney executed by him on obtaining his discharge (a;) ; or 
 against any person who has obtained an interim order of pro- 
 tection under the provisions of the statute 5 & 6 Vict. c. 116, 
 s. 13, during the time mentioned in the order (y). 
 
 If any person privileged from arrest (excepting members of 
 parliament and ambassadors) be arrested on a ca. sa., it is not 
 advisable to discharge such person, unless under the order of the 
 court or a judge, for the sheriff does it on his own responsi- 
 bility (z). 
 
 A writ of ca. sa. issued before the return of a fi. fa., which 
 has been executed on the defendant's goods, is irregular (a), 
 even though the whole amount levied under the Ji. fa. has been 
 swallowed up in discharging the landlord's claim for rent, and in 
 part payment of the expenses of the execution (i). But if no 
 levy at all has been made on the defendant's goods — thus if the 
 sheriff seizes under the f. fa. goods already in custodia legis, 
 or assigned under a bill of sale (c) ; or goods which the de- 
 fendant declares " he has sold to cheat the plaintiff," and so 
 induces the sheriff to withdraw from possession (d) ; in such 
 case the ca. sa. may be executed before the return of the 
 fi. fa. (e). But a ca. sa. may issue before the return of, or even 
 at the same time as a fi.fa., although they cannot both be exe- 
 cuted (/), A defendant arrested on a ca. sa., and discharged 
 on account of irregularity, may be taken on a second ca. sa. on 
 the same judgment (g-). A ca. sa. cannot issue after an elegit, 
 if lands have been taken under such writ (/«). But the sheriff 
 
 (u) 1 8c 2 Vict. c. 110, s. 90. (d) Knight v. Coleby, 5 M. & VV. 
 
 (i) See Riveltv. Lark, 3 Dowl. 62. 274. This case was decided upon the 
 
 (y) See Marsh V. WooUey, 1 Dowl. ground that the defendant, having once 
 
 & L. 84. denied the goods to be his, could not 
 
 (s) Sherwood v. Benson, 4 Taunt. afterwards set up the fraudulent sale 
 
 631; see also per cur. in Watson n. to show that they were liable to seizure. 
 
 Carroll, 4 M. & \V. 592. (e) See the cases above cited; also 
 
 (a) Millert).Parnell, 6Taunt. 370; 2 Man. & G. 914, note (c). 
 2 Marsh. 78, S. C. ; Chapman v. (/') Prinnrose n. Gibson, 2 Dowl. 
 Bowlby, 8 M. & VV. 249. & Ry. 193. 
 
 (b) Hodgkinson v. VVhalley, 2 C. (g) Merchant!;. Frankis, 3Q. B. 1. 
 &J.86; 1 Dowl. 298, S.C; Lawes (h) Bac. Abr. Execution (D); 
 V. Codrington, 1 Dowl. 30. otherwise if the sheriff' return nihil as 
 
 (c) Dicas V. Warne, 2 Dowl. 762; to the lands, see 1 Archbold's Prac. 
 llBing.341,S.C.; Edmond t). Ross, 446, 7lh edit. 
 9 Price, 512.
 
 WHEN EXECUTED. 
 
 193 
 
 may justify arresting a defendant under an irregular ca. sa., for chap. vii. 
 
 he is bound to execute the process of the court without in- __!^^llll_ 
 quiring into its regularity (i). 
 
 The writ of ca. sa. runs until it is executed, and therefore an When to be 
 
 . executed. 
 
 arrest may be made upon it even although more than a year 
 has elapsed since its date (k). 
 
 The arrest on a ca. sa. may be made at the same time, in the 
 same places, and in the same manner, as an arrest on mesne pro- 
 cess, and the sheriff's duty in either case is the same (I). In an 
 action for negligently omitting to arrest a debtor on a ca. sa., 
 the plaintiff will be entitled to nominal damages, even though 
 he has sustained no actual damage, if the jury find that the she- 
 riff has been guilty of a default (m). 
 
 A writ of ca. sa., issued in the lifetime of the judgment 
 creditor, may be executed after his death, for no judicial writ 
 after judgment is abateable by the death of him who sues it(?i). 
 
 Where a writ of ca. sa. is delivered to the sheriff with an 
 indorsement " to be returned 7wn est inventus," the sheriff is, 
 notwithstanding such indorsement, bound to arrest and detain 
 the party, if he either render himself or is rendered by his bail; 
 the meaning of such an indorsement being only that the sheriff 
 is not to look for the party (o). The sheriff has no right to 
 execute a ca. sa. after direction from the plaintiff not to do 
 so(p). 
 
 Where a defendant is in the custody of the sheriff under a 
 writ, the delivery to the sheriff of a ca. sa. against the defend- 
 ant in another suit is quite sufficient to complete the execution 
 on such ca. sa. against such defendant, without any admission 
 or acknowledgment on the part of the sheriff ((y) 
 
 The sheriff, in executing a ca. sa., as we have seen, is bound, 
 if necessary, to take the posse comitatiis, and therefore if the 
 defendant be rescued out of the sheriff's custody, it is an 
 
 (i) See 2 Tidd's Prac. 1072, 8tli Cleve v. Veer, do. Car. 459; Ellis 
 
 edit. V. Griffith, 16 M. & W. 106 ; see also 
 
 (/c) Simpson u. Heath, 5 M. & W. Folhergill v. Walton, 4 Bing. 711. 
 
 631; Greenshields i. Harris, 9 M. & (o) Magnay v. Monger, 4 Q. B. 
 
 W. 774; Thomas v. Harris, 1 Dowl. 817. 
 
 N. C. 793. (p) Baiker r. St. Quintin,l-2]\I.& 
 
 (/) See ante, 125, et seq. W. 441. See also Howard v. Canty, 
 
 (m) Clifton v. Hooper, 6 Q. B. 2 Dowl. & L. 115. 
 
 408. (q) Owen v. Owen, 2 B. & Ad. 
 
 (n) Thorogood's case, Noy, 73 ; 805.
 
 194 
 
 CAPIAS AD SATISFACIENDUM, 
 
 The sheriff's 
 duty after 
 the arrest. 
 
 CHAP. VII. escape (r). If tlie defendant be sued to judgment by a wrong 
 
 ' name, and the ca. sa. be also against him by such wrong name, 
 
 the sheriff is compelled to arrest the defendant, for by not 
 pleading in abatement the defendant has admitted that to be his 
 name(s). If the sheriff arrests the wrong party under a writ in 
 consequence of a false representation made to him that he was 
 the right party, no action will lie against the person making 
 that representation, unless at the time of making it he knew it 
 to be false, or made it fraudulently (t). 
 
 It is the sheriff's duty to keep every person taken by him by 
 virtue of a writ of execution in salvdet arctd custodhi; for if the 
 sheriff allow a defendant, arrested by him on a capias ad satis- 
 faciendum, to go at large for the shortest time, either before or 
 after the return-day of the writ, without the consent of the 
 plaintiff, it is an escape, for which the sheriff is answerable (?<). 
 If the sheriff let a defendant arrested by him on a ca. sa. go at 
 large on bail or baston(i'), or even on payment of debt and costs 
 to himself, (the sheriff) (x), it is an escape. The officer may 
 carry a person arrested on a ca. sa, to the county gaol imme- 
 diately/ after the arrest, for the statute S2 Geo. 2, c. 28, only 
 applies to persons arrested on mesne process (^). If the sheriff 
 carry a defendant in his custody out of the county, excepting 
 in conveying him by the most convenient route to the county 
 gaol, he will be guilty of an escape (;:), and likewise liable to 
 an action for false imprisonment (a). So if the bailiff of a 
 liberty convey a defendant arrested by him out of his liberty to 
 the county gaol, it is an escape (6). It is an escape to allow a 
 defendant arrested on a ca. sa. to go about his affairs, even, as 
 it would seem, in the custody of an officer (c). But the sheriff 
 is not hound to take a person arrested on a ca. sa. to the county 
 
 (V) Aute, 73. 
 
 (i) Crawford v. Satchvvell, Stra. 
 1218; Reeves v. Slater, 7 B.&C. 
 486; Fisher v. Magnay, 1 Dovvl. & 
 L. 40. 
 
 (f) Collins V. Evans, 5 Q B. 820. 
 
 (u) Doctor & Stud. 18 ; Bro. Abr, 
 Escape ; Rol. Abr. Escape (C ) ; Boy- 
 ton's case, 3 Rep. 44 ; stat. West. 2, 
 c. 11. 
 
 (v) Rol. Abr. Escape (A), 3, 4, 
 (D) 9. 
 
 (.t) Slackford v. Austin, 14 East, 
 468. See also Crozier v. Pilling, 4 
 
 Barn. & Cr. 26 ; 6 D. & R. 129, S. 
 C; Wooden n. Moxon,6 Taunt. 490; 
 2 Marsh. 186, S. C. 
 
 (y) Evans v. Atkins, 4 T. R. 555. 
 
 (s) Boston's case, 3 Rep. 44. 
 
 («) Bro. Escape, 11, — per Choke 
 and Billing. 
 
 (6) Boothnnan v. The Earl of Surry, 
 2 T. R. 5. 
 
 (c) Bentoni>.Sulton,l Bos. & Pul. 
 24; Balden v. Temple, Hob. 202; 
 Piatt t', Locke, Plowd. 35 ; Hawkins 
 V. Plomer, 2 Bla. Rep. 1048.
 
 HOW EXECUTED. 
 
 195 
 
 gaol immediately ; he may confine him in a lock-up house until chap. vn. 
 the return of the writ, without being liable to an action for an ^^^''' '• 
 escape, although such lock-up house is not the house of the 
 officer to whom the warrant is directed (r/). Whenever the 
 sheriff or his officer receives an order for the discharge of the 
 defendant, search should be made in the sheriff's office to ascer- 
 tain whether or not there be any other writs lodged against the 
 defendant ; for a person in custody at the suit of one plaintiff 
 is in custody at the suit of any other person who delivers a writ 
 to the sheriff before the discharge of the defendant (e). And 
 the sheriff has a reasonable time for the purpose of making sucli 
 search : therefore, where an order for the defendant's discharge 
 was received at the gaol where he was confined on a Saturday, 
 and forwarded to the under-sheriff, who lived at some distance ; 
 and on the Sunday the latter sent to the gaoler a warrant of 
 detainer against the defendant under another writ of ca. sa. 
 issued on the Saturday ; it was held that he was not entitled to 
 be discharsed on the "round that the service of the warrant on 
 a Sunday was void(/). 
 
 The amount to which the sheriff is entitled for executing a Poundage 
 writ of ca. sa. has been already shown (g)\ but although a writ 
 of ca. sa. be improperly indorsed to levy " sheriff's poundage 
 and officer's fees," the defendant will not be discharged out of 
 custody unless he has paid or tendered the proper amount (/<). 
 If the plaintiff's attorney employ the officer to make the cap- 
 tion, and it is usual for him to pay him under the circumstances, 
 the officer may maintain an action against the attorney for his 
 caption fees and conduct money (i). But in general, and with- 
 out such proof of employment of the officer, the client, not the 
 attorney, is the person liable for the sheriff's fees on the ex- 
 ecution of a ca. sa.{k). 
 
 The sheriff does not in general return a writ of ca. sa. with- 
 
 (d) Houlditch v. Birch, 4 Taunt. (h) Pitcher v. Roberts, 2 Dowl. 
 608. N. S. 394. 
 
 (e) Ante, 130. Frost's case, 5 (i) Newton v. Chambers, 1 Dowl. 
 Rep. 89 ; Benton v. Sutton, 1 Bos.& & L. 869. See also Foster v. Biake- 
 Pul. 24. See also Watson v. Carroll, lock, 5 B. & C. 328; Townshend v. 
 4 M. & W. 592. Carpenter, Ry. & M. 314; 2 C. & 
 
 (/) Samuel v. Buller, 1 Exch. R. P. 118, S. C. ; Walbank v. Quarter- 
 439. man, 3 C. B. 94. 
 
 (?) Ante, 111. (k) Maybery v. Mansfield, 16 Law. 
 
 J. Q.B. 102; «)ite, 115. 
 
 o2
 
 196 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. VII. out being ruled so to do, for llie writ is a sufTicient justification 
 ^^^'^- '• for acts done under it, althou»li it be never returned (/)• A 
 
 Wiuii the rule may be obtained at any time within six months after the 
 
 obh'^gL'.i'i'.. expiration of the office of the sheriff, for him to return the writ; 
 
 'cu"Z.'' and if the sheriff do dot comply with the rule, he is liable to an 
 attachment (??/.); but the court will not assent to an application 
 on the part of the defendant against the sheriff to return a ca. i«., 
 unless special grounds be shown for the application (?(), 
 
 cepi corpus. If tliG sheriff has taken the body of the defendant, he should 
 return ccp'i corpus (o), for which return, if untrue, the sheriff 
 will be liable for an escape, as tlie return is conclusive evidence 
 of the arrest (20- If the sheriff had not an opportunity of 
 arresting the defendant, he should return non est inventus (q). 
 If the defendant has been taken under the writ, but at the return of 
 the writ is too ill to be removed, we have already seen (r) that the 
 sheriff should return " languidiis," and such return should show 
 that the sickness continued up to and at the time of the re- 
 turn (s). The court has no power to allow the sheriff any 
 extra costs incurred by him in keeping in custody a person, ar- 
 rested by him on a ca. sa., who is too ill to be removed (<). 
 
 Privilege. If the defendant were privileged from arrest on a ca. sa., a 
 
 return of such privilege would be good (ti), although it leaves 
 the sheriff to the risk of contesting with the plaintiff the truth 
 of such return ((;) ; therefore, excepting in cases of members of 
 the royal family, peers, members of the House of Commons, 
 ambassadors, or their servants (w)> it is not advisable for the 
 sheriff to take notice of the privilege, but to arrest the defendant, 
 
 (/) Hoe's case, 5 Rep. 90; Doiley bailiwick," is irregular ; Rex v. The 
 
 V. Jolifle, Lane, 52; Rowland v. Sheriff of Kent, 2 M. & W. 316. 
 
 Veale, Cowp. 18 ; 10 East, 82 ; Cro. See also 2 Man. & G. 439, note (e). 
 
 Eliz. 237. (r) Ante, 96. 
 
 (m) As to tiie rule lo return the (s) Ibid. See aLo Jones v. Rob- 
 writ, and the granting the attachment, inson, 2 Dowl. N. S. 1044; 11 M. & 
 and as to returns in general, see ante, W. 758, S. C. 
 p. 81, et seq. (0 Jones v, R.obinson, supra. 
 
 (n) Williams v. Webb, 2 Dowl. N. (u) Inge i'. Herrick, cit. Doug. 675. 
 
 S. 904 ; D.iniels !). Gompertz, 2 Gale (v) Sherwood v. Benson, 4 Taunt. 
 
 & D. 751 ; 3 Q. H. 322, S. C. 631. For the court will not slay pro- 
 
 (()) See form of return, poi^ Append. ceedings in an action of escape brougiit 
 
 (/}) Stark. Evid. pait iv. 1346. against the sheriff in such case; id. 
 
 See also 3 Camp. 397. ibid. 
 
 (q) This form of return should be (w) For in such case tlie sheriff is 
 
 strictly adhered to. A return tiiatthe punishable if he arrest ihem on a cu. 
 
 defendant " is not lo be found in my sa. See antr, 134.
 
 KETUKN. 197 
 
 and leave him to apply to the court to be discharged if he be chap. vh. 
 entitled to it (a); and he may apply for such discharge even _i;!:!l!llL_ 
 though he has been guilty of laches (?/). 
 
 If the ca. sa. do not contain a non omittas clause, and the she- 
 riff has sent his mandate thereon to the bailiff of a liberty to be 
 executed, the proper return will be a return of mandavi halUvo, 
 with the answer of the bailiff if he have made any ; if not, with 
 nullum dedil responsum (2). So also if the bailiff makes an in- 
 sufficient return, the sheriff should return nullum dedit respon- 
 sum{a). But if the sheriff might himself have entered the 
 liberty under the writ, the return of mandavi hallivo would be 
 insufficient (b). 
 
 The return to a ca. sa. that the defendant was rescued, either 
 before or after he was conveyed to prison, is bad, for the sheriff 
 is obliged to be provided with sufficient force (c). Therefore, 
 if the sheriff make such return, he is liable to an action for an 
 escape ((/). 
 
 After being arrested on a ca. sa., it is the sheriff's duty to ^^^^"^"^^^"^j''; 
 keep the defendant in close custody until the plaintiff authorizes 
 his discharge, or the prisoner is removed by habeas corpus, oris 
 discharged by other lawful means; but if the plaintiff autho- 
 rize the discharge of the defendant, and there be no detainers 
 against him, the sheriff is bound to discharge him. The at- 
 torney for the plaintiff has not, however, any right to authorize 
 the sheriff to discharge the defendant (e), for the attorney's 
 duty ends when judgment is signed (f). In a case where a per- 
 son delivered a discharge to the warden of the Fleet, which the 
 plaintiff before the discharge of the defendant informed the 
 warden had been obtained from him by fraud and countermanded 
 the discharge, the warden notwithstanding released the prisoner ; 
 the court decided, that as the discharge was fraudulently ob- 
 tained, which the warden knew, that it was an escape ; the 
 abstract question was also argued, but not determined, how far 
 
 (x) See 4 Taunt. 631. Rescue (E) 1. 
 
 (y) Webb v. Taylor. 1 Dowl. & (d) O'Neil v. Marson, 5 Bun. 
 
 Low. 676. 2812; EUiol v. Duke of Norfolk, 4 
 
 (z) See forms of returns, Append. T. R. 789 ; Roll. Abr. Escape (D) 3. 
 
 c. 7. And see ante, p. 98. See also ante, 95. 
 
 (a) Ante, 99. (e) Savory d. Chapman, 1 1 Ad. & 
 
 (6) Fitz. Reiorn,53. Ell. 829. See also Davis v. Jones, 5 
 
 (c) May I'. Proby, Cro. Jac. 419; Dowl. 604, Tindal, C. J. 
 
 Cora. Dig. Rescous(D) 7; Bac. Abr. (/) 5 Dowl. 504, Tindal, C. J.
 
 198 CAPIAS AD SATISFACIENDUM. 
 
 CHAT. VII. 
 SECT. I. 
 
 the authority of the plaintiff for the discharge of the prisoner 
 was countermaiulable before it was executed (g). 
 
 Where a defendant, being in the custody of the marslial, was 
 brought up by habeas corpus cum causd before the Central 
 Criminal Court to plead to an indictment, and was committed to 
 Newgate and afterwards bailed, and the keeper of Newgate 
 then, without any fresh warrant, redelivered him to the marshal, 
 who received him into his custody, from which custody he 
 escaped ; it was held that the marshal was not liable to an es- 
 cape, for his custody was at an end when the defendant's body 
 was given up under the habeas corpus, and he could not law- 
 fully receive him again without a fresh commitment (h). 
 
 With regard to prisoners in custody, who have obtained pro- 
 tection from process by a final order, it is by 7 & 8 Vict. c. 96, 
 s. 23, enacted, '' that if any such petitioner, being a prisoner in 
 execution at the time of filing his petition, shall be detained in 
 prison for any debt or claim in respect of which he is protected 
 from process by his final order, it shall be lawful for the com- 
 missioner to order any officer who shall have such petitioner in 
 custody by virtue of such execution to discharge such petitioner 
 without exacting any fee ; and such officer shall be hereby in- 
 demnified for so doing." 
 
 With regard to persons in execution upon judgments for sums 
 under 20/., the 7 & 8 Vict. c. 96, s. 58, enacts, " that all persons 
 in execution, at the time of passing this act, upon any judgment 
 obtained in any of the courts afoi-esaid in any action for the re- 
 covery of any debt wherein the sum recovered shall not exceed 
 the sum of twenty pounds, exclusive of the costs recovered by 
 such judgment, shall and may, upon the application of every 
 such person or persons for that purpose, made at any time after 
 the passing of this act, to a judge of one of her majesty's supe- 
 rior courts of law at Westminster, or to the court in which such 
 judgment shall have been obtained, to the satisfaction of such 
 judge or court, be forthwith discharged out of custody as to such 
 execution by an order of such judge or court : provided always, 
 that if it shall happen that any such discharge shall have been 
 unduly or fraudulently obtained upon any false allegation of 
 
 (g-) Holland v. Eyles, i\I. 28 Geo. man, C. J., 11 Ad. & El. 836. 
 3, reported in Bac. Abr. Escape (E) {h) Coutanl v. Cliapman, 2 Q. B, 
 
 3, 6tli edit. See also fer Lord Den- 771.
 
 DISCHARGE FROM. 
 
 \DV 
 
 circumstances, which, if true, might have entitled the prisoner to chav. vii 
 
 be discliarged by virtue of this act, such prisoner shall, upon the 1^ 
 
 same being made to appear to the satisfaction of the judge or 
 court by whose order such prisoner shall have been so dis- 
 charged, be liable to be again taken in execution, and remanded 
 to his former custody by an order of such judge or court: pro- 
 vided also, that no sheriff, gaoler, or other person whatsoever, 
 shall be liable as for the escape of any such prisoner in respect 
 of his enlargement during such time as he shall have been at 
 large by means of such his undue discharge as aforesaid : pro- 
 vided also, that for and notwithstanding the discharge of any 
 debtor or debtors by an order of any such judge or court in 
 manner aforesaid, the judgment whereupon any such debtor or 
 debtors was or were taken or charged in execution shall never- 
 theless remain and continue in full force, to the intent and pur- 
 pose that the judgment creditor or creditors may have and take 
 remedy and execution upon every such judgment against the 
 property and effects of any such debtor or debtors, in such man- 
 ner and form as such creditor or creditors otherwise could or 
 might have done in case such debtor or debtors had never been 
 taken or charged in execution upon such judgment, and It shall 
 be lawful /or such creditor or creditors to have and take such 
 remedy and execution (/')." 
 
 The effect of an order of the Insolvent Court for the discharge 
 of a defendant from custody as to the detainer of the ])laintiff at 
 the expiration of a certain period, is to authorize the defendant's 
 discharge when that period arrives ; but it does not take away 
 the power of the plaintiff to release him previously, if he thinks 
 fit (j). The discharge of one of two defendants under the 
 Insolvent Act, does not operate as a discharge also of the 
 other (/c). 
 
 If a defendant dies in custody, the sheriff has no power to 
 detain his dead body until any other claims are satisfied ; and if 
 the dead body be not delivered up to his executors on request, 
 a peremptory inandamm will be granted in the first instance (J). 
 
 (t) See also 8 & 9 Vict. c. 127 ; {k) Nadin v. Battie, 5 East, 147 ; 
 
 9 & 10 Vict. c. 95; Ex parte Foulkes, see also Raynes v Jones, I Dowl. 
 
 15 M. & W. 612 ; Fitzball t;. Brooke, N. S. 373 ; 9 ^\. & VV. 104, S. C. 
 
 6Q. B.873. (/) Reg. v. Fox, 2 Q. B. 246; 
 
 (i) Ibid., per Lord Denman, C. J., Reg. v. Scott, ib. 248. 
 p. 783.
 
 200 
 
 CAPIAS At> SATISFACIENDUM. 
 
 CHAP. VII. 
 SECT. II. 
 
 What is an 
 escape of a 
 prisoner in 
 execution. 
 
 Seciion II. 
 Escape. 
 
 If the sheriff take a prisoner arrested on a ca. sa. out of his 
 county, excepting in necessarily conveying him to the proper 
 gaol, or if the sheriff or gaoler allow a prisoner to go at large, at 
 any time after an arrest, out of the prison, (except upon a habeas 
 corpus,) either before or after the return of the writ, it is an 
 escape (7/0- Thus, where the defendant, after having been con- 
 veyed to the county gaol, was seen at large, this was holden to 
 be an escape {n). And where the defendant was arrested, and 
 was afterwards seen riding with an officer of the sheriff, (not the 
 officer who made the arrest,) this was holden to be an escape (o). 
 So where the defendant was taken from the county gaol, in cus- 
 tody of the gaoler, to another place in the same county, in 
 order to give evidence before a revising barrister, and was 
 returned into gaol on the same evening, this was holden to be 
 an escape (p). So the bailiff of a liberty, who has the return 
 and execution of writs, is liable to an action for an escape if he 
 remove a prisoner taken in execution to the county gaol, situate 
 out of the liberty, and there deliver him to the sheriff (^). But 
 it is not an escape in the sheriff confining the defendant in the 
 lock-up house of an officer (although not the officer to whom 
 the warrant was directed) for ten days before the return-day of 
 the writ (r). Neither is it an escape if the defendant was, at the 
 time of his going at large, unlawfully in custody of the sherifi". 
 Thus, where a defendant in execution of the marshal on a ca. sa. 
 was brought up under a habeas corpus cum causa before the 
 Central Criminal Court, and committed to Newgate, and after- 
 wards bailed, and the keeper of Newgate then, without any fresh 
 warrant, re-delivered him to the marshal, who received him into 
 his custody, and afterwards suffered him to go at large, it was 
 held that the marshal was not liable to an action for an escape, 
 the defendant, for want of a fresh warrant, not being legally in 
 his custody at the time it took place ; and it was also held that 
 
 (m) 8&9 Will.3, c. 27, s. 1. Stat. 
 5 & 6 Vict. c. 22, s. 12, abolishes the 
 liberty of the rules. 
 
 (n) Balden v. Temple, Hob. 202; 
 Hawkins i. Plomer, 2 Bla. Kep.1048; 
 Piatt V. Locke, Plovvd. 35. 
 
 (()) Benton v. Sulon, 1 Bos. &. 
 Pul.24. 
 
 (/;) Williams v. Mostyn, 4 M. & 
 W. H5. 
 
 ((/) Boothman v. Earl of Surrey, 
 2 T. R. 5 ; Hepwoilh i'. Sanderson, 
 1 M. & Sc. 64; 8 Bing. 19, S. C. 
 
 (r) Houlditch v. Birch, 4 Taunt. 
 608; see also Hard. 31.
 
 ESCAPE. 201 
 
 the fact of the marshal having received the defendant into his chap. vn. 
 
 custody did not estop him from denying the legality of it (s). ^^.IlHI— 
 
 Even if the sheriff" discharge the defendant on payment of debt 
 
 and costs to him, without the assent of the plaintiff", it is an 
 
 escape {t) ; but if the sheriff" had received the money, and paid 
 
 it over to the plaintiff", it would appear however that the plaintiff" 
 
 could not bring an action for an escape against the sheriff" (?<)■ 
 
 The plaintiff"'s attorney has no authority, without the plain- 
 tiff's consent, to give a discharge from custody ; and therefore 
 if, on the bare authority of the plaintiff"'s attorney, the sheriff" 
 were to discharge a defendant from custody before the plaintiff" 
 had been satisfied his judgment, he would be liable for an 
 escape (v). But if the judgment has been in fact satisfied, either 
 by payment to the plaintiff", or to his attorney on the record, the 
 defendant may be released (x). 
 
 If the keeper of a prison, after one day's notice in writing, 
 refuse to show any prisoner committed in execution to the cre- 
 ditor at whose suit he was committed or charged, or to his 
 attorney, such refusal shall be deemed an escape (y). It is said, 
 that if a sheriff" marry a woman in execution in his custody, it 
 will be deemed an escape in law (z). If a man have judgment 
 against two persons, and both are taken in execution, if the she- 
 riff" suff"er one of them to escape, he shall be answerable for the 
 whole debt, though he has the other still in his custody (o). 
 
 If the sheriff" permit a prisoner to escape out of execution, he 
 is liable to an action for an escape, although the judgment on 
 which the ca. sa. issued is erroneous {b) ; or if the ca. sa. itself 
 be erroneous, the sheriff" is liable to an action for allowing a per- 
 son arrested thereon to go at large (c). As if the chancellor of 
 
 (s) Coutant v. Chapman, 2 Q. B. was held that the sheriff was liable to 
 
 771. an action for allowing her to escape; 
 
 (0 Slackford v. Austen, 14 East, ihid.(F)5; Whiting v. Ileynell, Cro. 
 
 468. Jac. 657 ; Sukliff r. Reynell, 2 Bulstr. 
 
 (m) Id. ibid. 320. Since the 5 & 6 Vict. c. 98, 
 
 (v) Savory D. Chapman, 11 A.& E. s. 31, the sherift' would, under the cir- 
 
 827. cumstances stated in the text, be liable 
 
 (x) See Crozier v. Pilling, 4 R. & C. only for such damages as the plaintiff 
 
 26. might recover in an action on the case. 
 
 (y) Stat. 8&9 Will. 3, c. 27, s. 8. (b) Gold v. Strode, Carth. 148; 
 
 (z) Bac. Abr. Escape (B) 3, citing 3 Mod. 324, S. C. ; otherwise, where 
 
 Plowd. 17, but nothing to that point the judgment is reversed, then the 
 
 can be found in that reference. sheriff is not liable for an escape, Dr. 
 
 (a) Roll. Abr. Escape (F) 4. So Drury's case, 8 Rep. 284 ; Dalt. 563. 
 
 where baron and feme were in custody (c) Burton v. Eyre, Cro. Jac. 289 ; 
 
 in execution, and the feme escaped, it Weaver v. Clifford, Cro. Jac. 3 ; Yelv.
 
 202 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. VII. tlie diicliy of Lancaster, on a writ directed to him, make his 
 ^^^' "• wairant to the sheriff to have the body before the justices, in- 
 stead of before the chancellor, that he might have the body before 
 the justices (d) ; or if a capias be issued on a recognizance, 
 where by the practice of the court it does not lie (c) ; or where, 
 after a year from the time of signing judgment, a ca. sa. issues 
 without a sci fa. to revive the judgment (/) ; or (before the 
 3 & 4 Will. 4, c. 67,) if a term intervened between the teste and 
 return of a ca. sa. (g) ; in any of these cases the process would 
 be erroneous, but not void, and the sheriff would be guilty of 
 an escape for suffering a defendant arrested thereon to go at 
 large. So also it is no defence in an action for an escape to say 
 that the judgment on which the ca. sa. was issued was obtained 
 by the plaintiff as indorsee of a bill of exchange given for money 
 won at play (h). But where the process is absolutely void, there, 
 if the sheriff arrest the defendant and suffer him to escape, he 
 will not be liable to an action (i) ; as if the court out of which 
 the execution issued had no jurisdiction over the cause, this is 
 no escape (k). And although in some cases the sheriff is justi- 
 fied in executing a writ, yet he may not be guilty of an escape 
 for discharging the defendant in his custody on such writ ; as if 
 a writ of execution (before the 3 & 4 Will. 4, c. G7) bore teste 
 out of term, the sheriff was justifiable, and yet he was not liable 
 to an action of escape, for it was a void writ (I). 
 
 So we have seen that a sheriff may justify arresting a party 
 privileged under a writ ; and yet he would not be liable for an 
 escape, if, after making the arrest, he allowed such privilege and 
 
 42, S.C. ; 2 Bulstr. 62; Ognel v. and see Keisar v. l^rreil, 2 Bulstr. 
 
 Pa'ston, Cro. Eliz. 165; see also per 256. 
 
 Lord Denman, in Coutant I). Chapman, (g) Shirley v. Wright, 2Ld.Raym. 
 
 2Q. B. 785. 775; 1 Salk. 273, S. C. 
 
 (d) Burton i;. Eyre, Cro. Jac. 288, (/«) Lane v. Chapman, 11 A. & E. 
 289. As if the writ were directed im- 966. 
 
 mediately to the sheriff of a county (i) Nector v. Gennett, Cro. Eliz. 
 
 palatine, and the sheriff arrested the 466; 21 Hen. 7, 16, pi. 27 ; Mar- 
 
 defendant, and afterwards discharged shalsea case, 10 Rep. 76 a. 
 him, it would appear that he would (/c) See ante, 67 et seq. And if the 
 
 be liable to an action for an escape, sheriff were to make arrest under a 
 
 as the writ is erroneous but not void ; writ which disclosed a want of juris- 
 
 Id.ibid.; Jackon f. Hunter, 6T. R. diction, he could not justify under 
 
 8j^ such writ; see Carratt v. Morley, 
 
 (e) See cases last note but one, 1 Q. B. 18. 
 
 Moore, 174; Cro. Eliz. 271 J 2 Saund. (/) Per Holt, C. J., Salk. 700; 
 
 100. 2 Lord Raym. 775 ; sed qiKcre. 
 
 (/) Bushe's case, Cro. Eliz. 188 ;
 
 ESCAPE. 
 
 203 
 
 suffered the defendant to go at large. Where a sheriff within chap. vh. 
 a hberty arrested a defendant on a ca. sa. without a non om'itlas, . ^^^^' "'■ 
 and suffered him to escape, the sheriff was held liable to an 
 action for so doing, for the arrest was good (wi) ; and the only 
 effect of its having been made within the liberty was to expose 
 the sheriff to an action at the suit of the lord of the liberty {n). 
 
 If the plaintiff appoints a special bailiff to make the arrest, 
 and he does so, the sheriff is not liable for an escape from the 
 custody of such bailiff before the defendant has been given into 
 the actual custody of the sheriff (o). When the sheriff is ordered 
 by a writ of habeas corpus to bring up the body of a person in 
 his custody in execution, it is his duty to convey him by the 
 shortest and most convenient road to the court at Westminster. 
 If he deviate from such direct road, or let the defendant go about 
 liis affairs, although he has him at the return of the habeas cor- 
 jms, it is an escape (j)). And if a habeas corpus issue in one 
 term to the sheriff to bring up a prisoner in his custody in exe- 
 cution on the ensuing term, if he let him go at large in the mean- 
 time, it is an escape (q). 
 
 The sheriff is allowed a reasonable time to bring up a prisoner 
 on a habeas corp)us, of which the court will judge (r). It is laid 
 down by Lord Coke, that if a sheriff, in taking a prisoner in ex- 
 ecution from his county gaol to Westminster on a habeas corpus, 
 lodge him in an inn on the direct road, and the defendant of his 
 own head goes at large, but the sheriff has him at Westminster 
 on the return day of the habeas corpus, this is no escape (s). 
 
 So, a sheriff is allowed a reasonable time to bring and keep 
 a prisoner beyond the limits of his county, in obedience to the 
 
 (m) Piggott V. Wilkes, 3 Bar. & & G. 558, S. C. ; Botten v. Tomlin- 
 
 Ald. 502. son, 16 Law J. (C. P.) 138 ; Seale 
 
 (ji) Villa de Darby v. Foxley, 1 v. Hudson, 11 Jurist, 610. 
 
 Roll. Rep. 119; see also Jackson v. (p) See Roll. Abr. Escape (D)9; 
 
 Hill, 10 A. & E. 493, Patteson, J. Cro. Car. 14, 466; Hard. 476; 1 
 
 (o) See ante, 40, 41 ; Pascoe v. Mod. 116. See 1 Sid. 13; Bull, N. 
 
 Vyvyan, 1 Dowl. N. S. 939. See also P. 67, as to habeas corpus ad testifi- 
 
 Alderson v. Davenport, 13 M. & W. candiim. 
 
 42, ctnle, 40, that merely requesting (q) Hard. 476 ; Roll. Abr. Escape 
 
 the under-sheriff to forward the warrant (D) 9 ; 1 Lord Raym. 241 ; 1 IVIod. 
 
 to a particular officer of the sheriff, 116. 
 
 and instructing that officer by letter as (r) Holdroid v.Liddell.l Ld.Raym. 
 
 to where the defendant is likely to be 241. 
 
 found, does not constitute such officer (s) Boyton's case, 3 Rep. 44 ; 
 
 a special bailiff. See also Brown v. Moore, 257. 
 Copley, 8 Scott, N. R. 332; 7 Man.
 
 204 
 
 CAl'lAS AD SATISFACIKNDUM. 
 
 CHAP. VH. 
 SECT. II. 
 
 Discharging 
 a defendant 
 by order of a 
 court without 
 jurisdiction 
 is an escape. 
 
 Escape by 
 act of God, 
 or by I he 
 king's ene- 
 mies. 
 
 warrant of a commissioner of bankrupts for examination before 
 him ; and it is sufficient if during such time tlic prisoner be ac- 
 companied and carefully watched by the otllcer, and it is no escape 
 that he is allowed to go about with the officer to different places, 
 and to dine and sleep at an inn(<). 
 
 In all the cases where the sheriff is ordered to discharge 
 a prisoner in his custody in execution, the sheriff is bound to 
 see that the court has jurisdiction to make such order, for he 
 is liable to an action for an escape if the court should not have 
 jurisdiction; as where a gaoler, by the command of the lord 
 chancellor and treasurer, allowed a prisoner in his custody in 
 execution to go at large to collect money to pay the king, this 
 was holden to be an escape, for the lord chancellor and trea- 
 surer had no authority to grant such a license (u). So where, 
 by an act of parliament for the relief of insolvent debtors, the 
 justices in sessions were enabled to discharge certain prisoners, 
 and made an order on the gaoler to discharge a person that did 
 not come within the description of the act, whom he allowed to 
 go at large, the sheriff was held to be liable for an escape (f ). 
 But the sheriff would be justified in obeying an order of the 
 Insolvent Court for the discharge of a prisoner, without inquir- 
 ing into all the circumstances to see if the defendant was entitled 
 to such order, provided that the order itself was good upon the 
 face of it (a;). 
 
 The sheriff is, however, excused if the escape be occasioned 
 by the act of God, or by the queens enemies. Thus, it is laid 
 down, that if prisoners escape from prison by sudden jire, no action 
 lies against the sheriff", for this is the act of God {y). It has been 
 supposed that the sheriff is only excused where the prison is 
 burned hy fire by lightning {z). And it has been decided that the 
 decay of the prison for want of repair is not an excuse for an 
 
 (<) Nias V. Davis, 2 Carr. & K. 
 280. 
 
 («) Roll, Abr. Escape (D) 8 ; 
 Dyer, 162,297; Cromp. Courts, 106; 
 Dalt. Sheriff, 142; Colston r. Ross, 
 Cro. Eliz. 893. Nor even can a gaoler 
 allow his prisoners to go at large when 
 the plague is raging in the prison. 
 See also tloll. Abr. Escape (D) 10; 
 Cro. Car. 466. 
 
 (i;) Brown v, Corapton, 8 T. R. 
 
 424 ; Anon., Salk, 273, The case of 
 Orby V. Hales, 1 Ld. Haym. 3 ; 4 Mod. 
 353, S, C, contra, is not law. 
 
 (.T) 1 & 2 Vict, c. 110, s. 110; 
 Saffery i;, .Tones, 2 B. & Adol. 698 ; 
 see also Marsh v. Wooliey, 1 Dowl. 
 & L,84. 
 
 (v) Roll. Abr. Escape (D) 6; 
 Dyer, 66. 
 
 (z) Per Eyie, C. J., 2 H. Blac. 
 113. See also 1 T. R. 27.
 
 ESCAPE. 
 
 205 
 
 escape («). So if sx\y forc'ign enemies of tlie king break open the chap. vn. 
 prison and release the prisoners, the sheriff and gaoler are ex- sect, ii. 
 ciised ; but if traitors and rebels (h), or if a large and irresistible 
 niob(c), break open a prison and set the prisoners at large, the 
 sheriff is liable to an action for an escape. 
 
 So also, the sheriff will be excused if the escape be occasioned Escape by 
 
 ' ^ ^ the coiilriv- 
 
 bv the fraud and covin of the plaintiff, or the party really in- anre of piahi- 
 terested in the judgment (d). Thus where the party enticed the 
 defendant out of the rules, it was held that the marshal, in whose 
 custody he was, could not be charged with his escape (c). So 
 where a prisoner, being in custody in execution at the suit of the 
 plaintiff, and having escaped beyond the rules, was, by the con- 
 trivance and with the privity of the plaintiff, arrested on a writ 
 of mesne process at the suit of a third person, and detained out 
 of the rules, in order to prevent him from returning into cus- 
 tody, as he otherwise would have done, and in order to deprive the 
 marshal of the defence which such return would have afforded 
 him, it was held that he could not sue the marshal for an escape 
 occasioned by the detainer which he had so contrived (/). 
 
 Escapes are of two kinds, either voluntary or negligent. In between^vo- 
 the case of a voluntary escape, the sheriff can never afterwards '„''g"J,'g^„Yes- 
 retake the defendant, but is liable to an action of false imprison- capes: iiertin 
 
 ' ■•■ of recapiioii. 
 
 ment if he do (^) ; even although such voluntary escape were 
 occasioned through a mere mistake. Thus, where a person, being 
 in custody at the suit of A., a ca. sa. was afterwards, and whilst 
 he was so in custody, lodged against him at the suit of B., and the 
 
 (a) Alsept V. Eyles, 2 H. Blac. also ])er Lord Denman, C. J., in 
 
 108. Coutant v. Chapman, 2 Q. B. 788. 
 
 (fc) Roll. Abr. Escape (D) 7, re- By the stat. 8 & 9 Will. 3, c. 27. 
 
 feiring to 3 E. 6, 66, 15; Soulhcot's s. 4, it is enacted, " that if any 
 
 case, 4 Rep. 84; Dyer, 66 b. marshal or warden, or their respective 
 
 (c) O'Neil V. Marson, 5 Burr. deputy or deputies, or any keeper of 
 
 2812; Elliott v. Duke of Norfolk, any other prison within this kingdom, 
 
 4 T. R. 789; Roll. Abr. Escape (D) shall take any sum of money, reward, 
 
 3. or gratuity whatsoever, or security for 
 
 {d) Hiscocks v. Jones, IMoo. & the same, to procure, assist, connive 
 
 Mai. 269; Merry «. Chapman, 10 Ad. at, or permit any such escape, and 
 
 & Ell. 516. shall be thereof lawfully convicted, 
 
 (e) Hiscocks II. Jones, si(;;ra. the said marshal or warden, or their 
 
 (/) Merry v. Chapman, 10 A. i?c respective deputy or deputies, or such 
 
 E, 516, olher keeper of any prisons as afore- 
 
 {g) Featherstonehaugh ;;. Atkinson, said, shall for every such offence for- 
 
 Barnes, 373; Atkinson v. .lameson, feit the sum of 500/. and his said 
 5T. R. 25; 1 Show. 174; 1 Sid. 330; office, and be for ever after incapable of 
 Whiting V. Reynell, Cro. Jac. 657; executing any such office."
 
 g06 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. VII. writ at the suit of A. having been withdrawn, the defendant was 
 ^^^'^' "• discharged out of prison, without any notice being taken of B.'s 
 writ (that writ having by mistake been omitted to be entered in 
 a book in which detainers were generally entered), it was held 
 that the escape was clearly voluntary, and, being so, the sheriff 
 could not retake the defendant on B.'s writ (A). If, however, the 
 escape be without the consent of the plaintiff, the plaintiff may 
 retake him on a fresh ca. sa. (i) ; but where, after a volun- 
 tary escape, the plaintiff recovered against the sheriff for an es- 
 cape, it was held that a fresh ca. sa. could not be sued out in 
 the plaintiff's name, with a view to the indemnification of the 
 sheriff (^), and it seems that for executing such a writ the sheriff 
 would be liable to an action at the suit of the defendant (Z) ; but 
 if the defendant, after a voluntary escape, return to prison, the 
 plaintiff may treat him as in execution (m) ; but it seems he 
 would thereby waive his action for the escape (w). After a neg- 
 ligent escape, the sheriff may on fresh pursuit retake the de- 
 fendant ; and if on such fresh pursuit he be retaken (o), or vo- 
 luntarily (^) return into the sheriff's custody before action 
 brought, it is a good defence if pleaded to the action for the 
 escape ; but if before the defendant has been retaken the plain- 
 tiff has commenced his action against the sheriff, the sheriff is 
 still liable (q). So also the sheriff would be liable, if at any time 
 between the escape and the return to custody he knew where to 
 find the defendant, but omitted to retake him, or to take any 
 
 (h) Filewood V. Clement, 6 Dowl. 109; James v. Peiice, 1 Vent. 269; 
 
 508. S. C. 2Lev. 132; 3 Keb. 453, 463; 
 
 (i) See 8 & 9 Will. 3, c. 27, s. 7. see also ib. 487 ; Dyer, 275; Hob. 
 
 And see 1 Sid. 330 ; 1 Vent. 4, 69; 202, contra, denied to be law. 
 
 1 Lev. 211 ; 2 Mod. 136: Cto. Car, (?;) See cases in last note: Roll. Abr. 
 
 255; 2 Sir T. Jones, 21 ;' Cro. Eliz. Execution (U) 8; 1 Ld. Raym.399; 
 
 555. But if the plaintiff consent to 1 Salk. 271; Stra. 423; Grant v. 
 
 the discharge of the defendant, he Southern, 6 Mod. 183. But see Ra- 
 
 cannot retake him on a fresh ca. sa,, venscroft i;. Eyles, 2 Wils. 294. 
 
 for it is considered satisfaction, 2 (o) Ridgway's case, 3 Rep. 52 b; 
 
 East, 243; 1 Bos. & Pul. 242; 6 Moore, 660, S.C. ; Harvey?;. Rennell, 
 
 T. R. 525; 1 T. R. 557; 4 Burr. Sir W. Jones, 145; Roll. Abr. Escape 
 
 2482; nor sue out a ^'. /a. ; nor can (E), 1, 3. 
 
 he set off the judgment in another ac- (/)) Chambers v. Gambler, Com. 
 
 lion whilst the defendant is in custody 544 ; Bonafous v. Walker, 2 T. R. 
 
 in execution, Taylor v. Waters, 5 M. 129. See also 2 Blac. 1050 ; 11 East, 
 
 &Sel. 103. 406; 1 Bos. & Pul. 413. 
 
 (k) Gilbert v. Aston, 2 Dowl. (</) Roll. Abr. Escape (E), 2,4; 
 
 N. S. 413. Whiting v. Rennell, Cro. Jac. 657 ; 
 
 (Z) Ibid. 3 Rep. 52 ; Stonehouse ;;. MuUins, 
 
 (w) Lenthall v. Lenthall, 2 Lev. Stra. 873.
 
 ESCAPE. 
 
 307 
 
 steps towards his recapture (r). We have, however, already chap. vh. 
 seen (s) that tlie sheriff will not be liable for a negligent escape _^^^£J^ 
 occasioned by the fraud of the plaintiff. The sheriff may retake 
 a prisoner vvho has escaped out of his custody without his privity 
 in any county {t), on fresh pursuit ; and to do so he may break 
 open an outer door («), and he may retake the defendant on a 
 Sunday (x). Fresh pursuit means pursuit made as soon as the 
 sheriff has notice of the escape (?/). It was held that the marshal 
 of the King's Bench might retake a prisoner who had escaped 
 from his custody, notwithstanding the prisoner had obtained his 
 protection from the commissioners of bankrupt after the escape 
 but before the recaption, inasmuch as such protection only ap- 
 plies to an original taking (:3). And it appears to be law that 
 the sheriff, although fresh pursuit have not been made, and al- 
 though the plaintiff have brought an action against the sheriff, 
 may retake the defendant until he is satisfied by the defendant 
 for the escape (a), if the plaintiff have recovered against the 
 sheriff for a negligent escape. 
 
 The sheriff, after a retaking; of the defendant, may detain him The sheriff's 
 
 ' o ' ^ remedy tor 
 
 until he is satisfied for the damage sustained by reason of the ihe escape. 
 escape (6) ; or he may bring an action against the defendant to 
 recover damages for the costs sustained by him. 
 
 The only action which lies against the sheriff for an escape of or the action 
 
 1 • r- 1 r o r> \T- no '°'' ^" escape 
 
 a debtor m execution, snice the passmg ot the 5 oc b Vict. c. vb of a prisoner 
 (10th August, 1842), is an action upon the case for such damage '" ^''^'^" '""* 
 as the plaintiff at whose suit he was imprisoned may have sus- 
 tained by reason of such escape (t). The action on the case was 
 the only action which lay against the sheriff at common law for 
 an escape, in which action the plaintiff is only entitled to such 
 damages as the jury will give ((/) ; but by several statutes (stat. 
 of Westminster 2nd, 13 Edw. 1, c. 11 ; 1 Rich. 2, c. 12; 1 
 Ann. Stat. 2, c. 6, s. 2), an action of debt was also given, in 
 
 (r) Davis V. Chapman, 5 Bing. N. also tit. Execution (U) 5. 
 
 C. 453. (z) Anderson v. Hampton, 1 Bar. 
 
 (s) Ante, 201. & Aid. 309. 
 
 (0 Dalt. Sheriff, 139. And see (a) Dalt. Sheriff, 139; Ridgway's 
 
 Roil. Abr. Execution (U) 9; Ridg. case, 3 Rep. 52. 
 
 way's case, 3 Rep. 52. (h) Id. ibid. 
 
 (u) See ante, 128; 5 Rep. 93. (c) 5 & 6 Vict. c. 98, s. 31. 
 
 (.i) Sir \V. Moore's case, 2 Lord (d) Bonafous v. Walker, 2 T. R. 
 
 Ravm. 1028 ; see also Atkinson v. 132. See also Gabel v. Perchard, 
 
 Jameson, 5 T. R. 25. See ante, 80. 2 Anst. 522. 
 
 (y) Roll. Abr. Escape (E) 3. See
 
 208 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. VII. 
 SKCT. 11. 
 
 maintiiiii nn 
 
 action 
 
 escape 
 
 wliich action the plaintiff miglit recover tlie whole debt for which 
 the defendant was in execution (e). This action of debt is now, 
 however, expressly taken away by the 31st section of .5 & G 
 Vict. c. 98, which enacts, " that if any debtor in execution shall 
 escape out of legal custody, the sheriff, bailiff, or other person 
 having the custody of such debtor, shall be liable to an action 
 upon the case for damages sustained by the person or persons at 
 whose suit such debtor was taken or imprisoned, and shall not 
 be liable to any action of debt in consequence of such escape." 
 Who may If, whilst the defendant be in custody of the sheriff in an 
 
 maintain an . , • p « • t i i i • i (v» n i 
 
 action for an actiou at the suit ot A., a wnt be lodged in the ofrice of the 
 sheriff at the suit of B., and the defendant escape, B. as well as 
 A. may have an action against the sheriff for the escape, for 
 the delivery of the writ is an arrest in law(/). An action 
 will lie by an executor for an escape out of execution in the 
 time of his testator (g). Where a judgment was obtained by 
 the plaintiff as administratrix, it was held that she might bring 
 an action for the escape without suing as administratrix (/«). 
 Where the plaintiff is nonsuited in an action against a hundred, 
 who take him in execution for the costs of the nonsuit, and the 
 sheriff allows him to escape, the hundred may sue the sheriff for 
 an escape (i). Where a defendant in execution in an action of 
 trespass for mesne profits, brought in the name of the nominal 
 plaintiff, escape, an action for the escape may be brought in the 
 name of the nominal plaintiff (/l). The action may be brought 
 by the plaintiff", for an escape on a capias utlagatum, in his own 
 right ; for it was reported by the prothonotaries that the pre- 
 cedents were in that way as well as qui tarn (J). 
 
 Neither the heir nor the executor of the sheriff is liable for 
 an escape, because it is a personal tort, which dies with the 
 person of the sheriff (?«). But where there are two sheriffs who 
 
 (0 Hawkins v. Plomer, 2 Blac. (h) Bonafous v. Walker, 2 T. R. 
 
 Rep. 1048; Alsept v. Eyies, 2 H. 126. 
 
 Blac. 113. See also 2 T. R. 129. (0 Fitzg. 296. 
 
 (/) Benlon v. Sutton, 1 Bos. & (/c) Doe y. Jones, 2 M. & Sel. 473. 
 
 Pul. 24; Jackson v. Humphreys, Salk. (l) Moore v. Reynolds, Cro. Jac. 
 
 273; Frost's case, 5 Rep. 89; see 619, recog. in Throgmorlon v. 
 
 also ante, 130, and Fiievvood v. Cle- Church, Dom. Proc, 1 P. Williams, 
 
 ment, 6 Dowl. 508. 693. 
 
 (g) Per Holt, C. J., in Berwick v. (m) Dyer, 271, 322 a; Dalt. Sher. 
 
 Andrews, Lord Raym. 973; S. C. 6 517; see also 6 Mod. 125; 1 Lord 
 
 i\lod. 125; Dyer,"322a, note; W. Raym. 399. 
 .Tones, 173; 1 Vent. 31.
 
 ESCAPE. 209 
 
 suffer an escape, and one tlies, the action lies against the sux*- chap. \u. 
 
 vivor, or if pending the action one dies, the action survives (?i). '- — — 
 
 The old sheriff, at the expiration of his office, should regularly 
 turn over all the prisoners to the new sheriff, in the manner 
 hereinbefore pointed out (o) ; and if he omit any, it is an es- 
 cape (^;). If the sheriff died, the new sheriff was (before 3 Geo. 
 1, c. 15,) bound to take notice of all the prisoners, and the ac- 
 tions with which they were charged (q). And where a prisoner 
 had escaped from prison by the assent of the gaoler, and re- 
 turned to prison, and afterwards a new sheriff was appointed, 
 during whose shrievalty the defendant again escaped, the new 
 sheriff was held to be liable to an action for this escape; for it 
 was optional for the defendant to proceed against the old she- 
 riff, or hold the defendant in execution (r). Between the death 
 of the old sheriff and the appointment of his successor, formerly 
 there was no officer that was responsible for the safe custody of 
 prisoners ; but by the statute 3 Geo. 1, c. 15, s. 8, " in case of 
 the death of the high sheriff, the under-sheriff shall execute 
 his office until another sheriff be appointed, and shall be an- 
 swerable for the execution of the office in all things during that 
 interval as the high sheriff would have been if living (s)," 
 
 The venue in this action is transitory (/). In a declaration for Declaration, 
 an escape of a prisoner in execution, it is necessary to state that 
 the plaintiff recovered a judgment against the debtor,, — that the 
 ca. sa. was issued and delivered to the defendant, — the arrest 
 under it, — and that the debtor afterwards escaped ; as, however, 
 the judgment is only inducement to the action, the allegation 
 "quod cum recuperasset" is sufficient («<). If it be alleged that 
 the plaintiff recovered a judgment in a particular term, as it 
 appears by record, and on the evidence it appears that the 
 judgment is of a different term from that stated in the declara- 
 tion, the variance is not material ; for the term is not material, 
 
 (n) Bennion r. Watson, Cro. Eliz. Dyer, 275 ; Roll. Abr. Execution (U) 
 
 625; see also stat. 8 & 9 Will, 3, c, 8 ; Langdon i;. Wallis, 1 Ld. Raym. 
 
 11, s. 7. 399; 1 Salk. 271. 
 
 (o) Ante, 22. (s) Auie,24. 
 
 (p) Westby's case, 3 Rep. 71b. (t) 1 Wils.336; PIowd.35; Dyer, 
 
 ((/) Ibid. ; Cio. Eliz. 366. 278 b ; Bac. Abr. Escape (F). 
 
 (r) Lenlhall v. Lenthall, 2 Lev. (k) Eden j;. Lloyd, Cro. Eiiz. 877 ; 
 
 109; James v. Peaise, 1 Vent. 269 ; Waites v. Briggs, 2 Salk. 565; 1 
 
 2 Lev. 132, S. C; 3 Keb. 453, 463; Saund. 38 b, note q4). 
 
 P
 
 210 CAPIAS AD SATISFACIENDUM. 
 
 CHAP. vir. and tlie '^nout jmte/ per recordum may be rejected as sur- 
 '^^^'^' "• plusage(r). And where the declaration in an action for an 
 escape stated a judgment, and also an award of execution 
 against the prisoner for the damages recovered, and that thereupon 
 the prisoner was committed, &c., it was held that the allegation 
 that a SCI. fa. had been sued out was immaterial, and that it 
 need not be proved, proof of the judgment being sufficient (?/). 
 But the judgment must correspond substantially with the decla- 
 ration; for where, in an action for a false return to a ji. fa., the 
 declaration stated that the plaintiffs, i?/ the judgment of the court, 
 recovered against the bail, and the evidence adduced was the sci. 
 fa. roll, which concluded in the common form, that the plahitiffs 
 shoidd have execution against the bail, the variance was held to 
 be fatal (z). And where, in a declaration in an action for an 
 escape, it was stated the bail was put in before di judge in cham- 
 bers, prout patet per recordum, who had rendered the defendant, 
 and on the entry of the bail being produced, it appeared to have 
 been taken before the court at Westminster, this was held to be a 
 fatal variance (a). 
 
 A negligent escape may be given in evidence under a count 
 for a voluntary escape (i). Before the passing of the 5 & G 
 Vict. c. 22, if a prisoner was brought up by habeas corpus, and 
 committed to the custody of the marshal of the Queen's Bench, 
 or the warden of the Fleet, in an action against the marshal or 
 warden for an escape, it must have been alleged in the declara- 
 tion that the commitment was of record ; for the prisoner was 
 not in point of law in the marshal's custody until the commit- 
 ment was entered of record (c) ; and the law would seem to be 
 the same since the passing of the 5 Sc 6 Vict. c. 22, in the case 
 
 (i) Sloddart v. Palmer, 4 Dowl. As to the power of amendment, see 
 
 & lly. 624 ; 3 Bar. & Cress. 2, S. C. ; now stat. 3 & 4 Will. 4, c. 42. s. 23. 
 
 I'uicell V. Macnamara, 9 East, 157; (h) Bonafous i'. Walker, 2 T. II. 
 
 Phillips V, Shaw, 4 Bar. & Aid. 435 ; 131 ; Sir Ralph Bovey's case, 1 Vent. 
 
 5 Bar. & Aid. 964; Bennetli'. Isaac, 211,217; 1 Saund 35, n. 1 , 
 
 10 Piice, 154; see also Cocks v. (c) Wightman t). IMullins, 2 Stra. 
 Brewer, 2 f)o«l. N. S. 759 ; Lewis v. 
 
 1226; Barnes v. Eyles, 2 Moore, 
 561; 8 Taunt. 512, S. C; see also 
 Turners. Eyles, 3 Bos, & Pul. 456; 
 
 Alcock, 6 Dowl. 78. 
 
 (y) Bromfield v. Jones, 6 Dowl. & _ _. .. — _,-.^, — . -.. , 
 
 By.' 500; 4 Bar. & Cress. 380, S. C. \Vigley v. Jones, 5 East, 440; Reg. 
 
 (s) Phillipson V. Mangles, 11 East, Gen. 41 Geo. 3, K. B., 1 East, 410 ; 
 
 516. Puidonn). Brot'kridge, 3 Dovvl.& Ry. 
 
 (a) Bevan i'. Jones, 6 Dowl. & 597; 2 J5. & C. 342, S. C. 
 Ry. 483; 4 Bar. c\ Cress. 403, S. C.
 
 ESCAPE. 211 
 
 of persons committed to tlie custody of the keeper of the Queen's chap. vn. 
 . siiCT.ir. 
 prison. ■ — 
 
 A count for neglecting to arrest the debtor may be joined 
 with a count for an escape in the same declaration (d) ; and in an 
 action against a sheriff for not arresting the defendant, it is not 
 necessary to aver in the declaration that the sheriff had notice 
 of the defendant being in his bailiwick (e). 
 
 In an action for an escape, the plaintiff may be ordered to Pyiticuhis of 
 
 . . . ■, escape. 
 
 give a particular of the alleged escape, specifying the time and 
 place (/). 
 
 In an action on the case for an escape, the plea of not guilty (ex- P'eas. 
 cept in cases otherwise provided for by particular statutes) ope- 
 rates as a denial of the neglect or default of the sheriff or his offi- 
 cers, but not of the debt, judgment, or preliminary proceedings(g') ; 
 if the defendant wishes to dispute the existence or validity of 
 the debt, judgment, or any other proceedings, or the fact of the 
 arrest having been made by himself or his officers, he must 
 plead specially ; so must he also, if, admitting the fact of the 
 escape, he wishes to set up any matter of excuse, as, for instance, 
 a recaption before action, in the case of a negligent escape. 
 
 We have seen (/«) that under a count for a voluntary escape 
 the plaintiff may give evidence of a negligent escape. To a 
 count for a voluntary escape, therefore, the defendant need not 
 traverse that the escape was voluntary, but may plead that it 
 was negligent (i), and that the defendant was retaken on fresh 
 pursuit, or that he voluntarily returned into custody before the 
 commencement of the action ; and if the plaintiff relies on a 
 voluntary escape, he may show it in his replication (j), It was, 
 even before the new rules of H. T. 4 W. 4, necessary that the 
 defence of recaption or voluntary return into custody should 
 be specially pleaded (A-) ; such a plea, however, must be verified 
 by affidavit, for by the statute of 8 & 9 Will. 3, c. 27, s. G, 
 " no retaking on fresh pursuit shall be given in evidence, on 
 
 (d) Raymond v. Bridges, Lofft,59. (0 See Davis y. Chapman, 5 Bing. 
 
 (e) Dean, &:c, of Hereford, v. Mac- N. C. 453. 
 
 namara, 5 Dowl. & Ry. 95; Dui<e i>. (j) Sir Ralph Bovey's case, 1 
 
 Duke, 4 Bing. N. C. 197. Vent. 21 1, 217; S. C. 3 Keb. 55; 1 
 
 (/) Webster v. Jones, 7 D. & R. Saund. 35, n, (1). See also 2 T. R. 
 
 774; Davis v. Chapman, 6 A. & E. 131; sed vide Whiting v. Reynell, 
 
 767. Cro. Jac. 657. 
 
 (g) Reg. Gen. H. T. W. 4, r. 4. (k) See 8 & 9 Will. 3, c. 27, s. 6 ; 
 
 (/t) Supra, Bonafous v. Walker, 2 T. R. 131. 
 
 p3
 
 212 CAPIAS AD SATISFACIKNDUIVI. 
 
 CHAP. VII. tlie trial of any issue in any action of escape, unless the same 
 jECT^ be specially pleaded ; nor shall any special plea be taken, re- 
 ceived, or allowed, unless an oath be first made by the marshal 
 or keeper of the prison, and filed in the office of the respective 
 courts, that the prisoner escaped without his knowledge." It is 
 necessary, as well in a plea of recaption as of voluntary return 
 of the defendant to custody, to allege that such recaption or re- 
 turn was before action brought (/), and also that the defendant 
 was detained in prison from the time of such recaption or return 
 to the commencement of the action against the sheriflr(r«), or 
 until the defendant's legal discharge(M); and also that the de- 
 fendant did not know where the prisoner was during any period 
 of his absence (o). 
 
 In a plea of recaption, or of voluntary return into custody, it is 
 suflncient to show a detention of the prisoner from the time of such 
 recaption or return, np to the time of action brought; and therefore 
 where a plea of a voluntary return alleged that after such return 
 the defendant did therefore keep and detain, and always from 
 thence hitherto hath kept and detained, and still doth keep and detain, 
 the prisoner in the custody. Sec, to which the plaintiff replied 
 de injuria; it was held that the plea was supported by proof of 
 a detention up to the time of the commencement of the suit, and 
 that the allegation that the defendant thence hitherto kept and still 
 doth keep, Sec, was superfluous and immaterial, and was not 
 put in issue by the replication de injuria, because that replication 
 only puts in issue the material allegations of the plea (p). If the 
 judgment upon which the ca. sa. was issued is absolutely void be- 
 tween the parties, it seems that that circumstance would afford a 
 good defence to an action for an escape. It would, of course, be 
 necessary to plead that defence specially, and the plea should set 
 forth all the circumstances to show why and how the judgment was 
 void(y). If the defence be that the prisoner was discharged by the 
 plaintifif, or by the order of a court having jurisdiction to make such 
 order, such discharge should be specially pleaded. A plea that 
 
 (/) Slonehouse i-. Mullins, Stia. 199. 
 S73. (o) Davis v. Chapman, 5 Bing. 
 
 (m) Cliambers v. Jones, 11 East, N, C. 453) see also S. C. 2 Man. & 
 
 40() ; Aleriton v. Briggs, 1 Ld. Baym. G. 921. 
 
 39; explained in 11 East, 410; see {]>) Davis i). Chapman, 2 Man. & 
 
 also Giiffilhs V. Eyles, 1 Bos. & Pul. G. 921. 
 413. ('/) See Lane v. Chapman, 11 A. 
 
 (?i) \Villis V. Gambier, Prac. Reg. & E. 966.
 
 ESCAPE. 213 
 
 tlie attorney for the plaintiiT authorized tlie discharge would be chap. vh. 
 bad, unless it contained an averment, either that the amount lor . ^^*'^' "' 
 which the execution issued had been paid, or that the discharge 
 was authorized by the plaintiff (r). The defence that the 
 prisoner was discharged by the order of the Insolvent Court, 
 may be given in evidence under the general issue (s), or it may 
 be specially pleaded ; and in such special plea it will be suffi- 
 cient to set out the order of the court, and it need not be shown 
 that all the proceedings upon which the order was grounded 
 were properly taken (i). 
 
 We have seen(«) that the sheriff may defend himself by 
 showing that the arrest was made by, and the escape from, a 
 special bailiff appointed by the plaintift^ himself ; and this 
 defence appears to have been pleaded specially in one case (y) 
 without objection ; but, on special demurrer, it may be doubted 
 whether such a plea would not be held to amount to an argu- 
 mentative traverse of the arrest by the defendant. We have also 
 seen {w) that the sheriff may defend himself by showing that the 
 escape was occasioned through the fraud and covin of the plain- 
 tiff himself; but to an action for a negligent escape, a plea that 
 the plaintiff or others by his contrivance fraudulently detained 
 the debtor out of his custody, while he was intending and about 
 to return, should allege not only that the debtor could, but also 
 that he would, but for such fraudulent detainer, have returned into 
 custodij before the commencement of the action\^x). To a declara- 
 tion against the bailiff of a liberty for an escape after an arrest 
 under a mandate, it would be no defence against the further 
 maintenance of the action to plead, by way of estoppel, that, 
 after the commencement of tlie suit, the sheriff' returned cepi 
 corpus (y). 
 
 To any plea setting up matter of excuse for the wrongful act iupiicrtiiun;-. 
 complained of, the plaintiff may reply de injuria; and this re- 
 plication will put in issue nil the material allegations in the plea, 
 
 ((■) Savovy V. Chapman, 11 A. & (n) Ante, 199. 
 
 E. 829. (v) Tascoe v. Vyvyan, 1 Dowl. N. 
 
 (s) 1 & 2 Vict. c. 110, s. 110. If S. 939. 
 
 tlie general issue by statnte be relicil (w) yhite,'20\. 
 
 on, tlie words " By Statute" must be (x) Merry v. Chapman, 10 A. & 
 
 inserted in the margin of the pica ; E. 516. 
 
 Reg. Gen. T. T. 1 Vict. d^) Jackson v. Hill, 10 A. & E* 
 
 (0 Saflery v. Jones, 2 B. & Adol. 477". 
 598.
 
 214 CAPIAS AD SATISFACIENDUM. 
 
 ciiAi'. VII. but not such as are superfluous or immaterial (z). To a plea 
 ^^' "' setting up as a defence a recaption or a voluntary return, tlie 
 plaintifl" may reply, by way of new assignment, that, after such 
 recaption or return to custody, the prisoner again escaped, 
 which escape is the one complained of in the declaration (a). 
 This replication by way of new assignment, however, is not 
 necessary, for under a replication traversing that the debtor was 
 detained in custody up to the time of the commencement of 
 the suit, the same evidence may be given (6). 
 Evifience in The plea of not guilty puts in issue only the neglect or default 
 an escape. of the sheriff or his officers (c) ; and the plaintiff need not, unless 
 they are expressly denied, prove either the judgment, the is- 
 suing or delivery of the writ to the sheriff, or the arrest. 
 Under not Where the plea of not guilty, therefore, is pleaded alone, the 
 
 ^"""^' plaintiff need only prove the neglect or default of the sheriff, 
 
 which is the escape, and the damages sustained in consequence. 
 In order to show the escape, the plaintiff must prove that the 
 debtor was at large after the arrest, either before or after the 
 return of the writ, for the shortest time ; even if he be accom- 
 panied by a sheriff's officer, it is an escape ((/). And by the 
 statute 8 & 9 Will. 3, c. 27, s. 8, " If any marshal or warden, or 
 their deputies, or the keeper of any prison, after one day's notice 
 in writing, given for that purpose, shall refuse to show a prisoner 
 committed in execution to the creditor at whose suit such 
 prisoner was committed, or his attorney, such refusal shall be 
 adjudged to be an escape." As to the admissions of the under- 
 sheriff, or the bailiff who made the arrest, and as to the manner 
 of connecting the sheriff with the officer, the observations already 
 made on the evidence in an action for an escape on mesne pro- 
 cess (e) apply equally to an action for an escape of a prisoner 
 in execution. If the old sheriff do not assign over all the pri- 
 soners to the new sheriff, this is an escape; but if it be shown 
 that there was an assignment by parol, to which the new sheriff 
 assented, the sheriff is not liable for an escape (_/). 
 Denial of the The judgment on which the ca. sa. issued may be proved by 
 jucgmen. giving in evidence an examined copy of the record. What is 
 
 (s) Davis V, Chapman, 2 Man. & (d) And as to what is an escape, 
 
 G . 92 1 . see ante, 200, et seq. 
 
 (a) See 1 Bos. & P. 414. (e) Ante, 188. 
 
 (I>) See 1 Bos. & P. 417. (/') Poulter '.'.Greenwood, Barnes, 
 
 (c) Reg. Gen. H. T. 4 Will. 4. 367, 4to.
 
 ESCAPE. 
 
 .'215 
 
 and what is not a fatal variance in the statement of tlie judgment chap. vu. 
 
 has ah-eady been considered (^). It is competent for the de- _!^^^l!j !_ 
 
 fendant to show that the judgment is vvliolly void, as tliat there 
 was a want of jurisdiction in the court wherein it was given (/«), 
 but lie cannot show that the judgment is erroneous (?). 
 
 The issuing and delivery of the writ to the sheriff may be Denial oi the 
 proved as follows : if the sheriff has returned the writ, an ex- Ifeiive%''of 
 amined copy thereof, and of the sheriff's return indorsed on it, 
 will be conclusive evidence against the sheriff(j) ; if the sheriff 
 has not made his return, notice to produce the writ having been 
 duly served on the sheriff's attorney, and search Jiaving been 
 made at the Treasury (/c), parol evidence of its contents may be 
 given ; and proof should also be given of its delivery to the 
 sheriff, A delivery to the sheriff's deputy in London is a de- 
 livery to the sheriff (0. Where the old and new sheriff return 
 a writ non est inventus, in an action against the old sheriff for 
 not arresting the defendant, it was was held that as the return 
 related to the day of quitting office, that, to make the sheriff 
 liable for the default of the officer employed, it is not enough to 
 show that the officer's name is on the writ, but it is necessary 
 to prove that the neglect of the officer was committed whilst the 
 defendant was in office {pi). 
 
 The arrest may be proved in the same manner as an arrest Denial ot iiic 
 on mesne process (n). The arrest proved must be a legal one(o). 
 By the statute 8 & 9 Will. 3, c. 27, s. 9, it is enacted, " that if 
 any person, desiring to charge another with any action or exe- 
 cution, shall desire to be informed by the marshal of the King's 
 Bench, or the v/arden of the Common Pleas, or their respective 
 deputy, or by any other keeper or keepers of any other prison, 
 whether such person be a prisoner in his custody or not, every 
 the said marshal, warden, or such keeper, &c., shall give a true 
 note in writing thereof to the person requesting the same, or his 
 attorney, upon demand at his office for that purpose ; and if such 
 marshal, warden, deputy, or keeper shall give a note in writing 
 that such person is an actual prisoner in his custody, every such 
 
 (g) See aH(e, 206. (0 Woodland i;. Fuller, 11 A. & 
 
 {h) Seea/ire, 199. E. 859. 
 
 (i) Ibid. (m) Fonsec v. Magnay, 6 Taunt. 
 
 (j) 2 Phill. Evid. 231, 1st edit. ; 231 ; 1 Marsh. 554, S. C. 
 
 Starkie's Evid. part 4, 1346; Bui. {n) See aji(e, 184. 
 
 N. P. QQ. (o) Coulant v. Chapman, 2 Q. B. 
 
 (k) Rose. N. P.,Ev. 610, last edit. 771.
 
 216 CAPIAS AD SATISFACIENDUM. 
 
 CBAP. VII. note shall be taken as sufficient evidence of the fact (2>)." Where 
 ^^^^- "• the writ has been returned, the slieriff" is bound by his return 
 both as to the foct and the tin)e of the arrest (ry); but if the 
 writ has not been returned, then some evidence should be given 
 to connect the bailiff' and the sheriff'(>). 
 Evidence for Under the plea of nil debet, the defendant was entitled to j^o 
 tiiedeiendant. .^^^^ evidence of any thing which was an excuse for him, excepting 
 recaption on fresh pursuit, or the voluntary return of the de- 
 fendant to custody (i). On the issue, that the sheriff did not 
 detain the creditor after the recaption, or the voluntary return, 
 viodo et forma, if it appear in evidence that the defendant was at 
 large after the return, and died out of custody, the plaintiff" is 
 entitled to a verdict (/). Indeed, it seems to have been the 
 opinion of Eyre, C. J.(?0. that on a replication that the defend- 
 ant had not kept the prisoner in custody from the time of the 
 return, proof of an escape after the first return would have en- 
 titled the plaintiff to a verdict. 
 Damage?. In an action on the case for an escape, the sheriff will be 
 
 liable to the amount of such damages as a jury may consider 
 that the plaintiff at whose suit he was imprisoned may have 
 sustained by reason of the escape {x) ; and even when debt was 
 allowed for an escape, Lord Abinger seemed to think that the 
 sheriff" stood in the same situation as the defendant in the 
 action, and might show the real merits of the case, and to what 
 extent the defendant was liable (?/). If the escape was ro/iiH- 
 tary, the sheriff has no mode of reimbursing himself, for a bond 
 taken by the sheriff to suffer a prisoner in his custody to go at 
 large is void (2); nor can tlie sheriff maintain an action against 
 the defendant to recover the money he was obliged to pay in 
 
 (/;) In practice, when a prisoner (7) Cook v. Hound, 1 iM. & Rob. 
 
 in custody of the marshal is to be 512. 
 
 charged with a King's Iknch execu- (r) Rose. N. P. F.v. 611. 
 
 tion, a rule is obtained from the mar- («) See ante, 208. 
 
 shal to acklowledge the defendant {t) Chambers v. Jones, 11 East, 
 
 to be in custody, Sucli an acknow- 40G. 
 
 ledgmenl is of course evidence to prove (u) Griffiths v. Eyles, 1 Bos. & 
 
 the fact. When a prisoner is in cus- Pul. 413. Per Lord Ellenborough, 
 
 tody of the warden of the Fleet, and C. J., 11 East, 409. 
 is charged with a Common Pleas or (,i) 5& 6 Vict. c. 98, s. 31. See 
 
 Exchequer writ, a habeas corpus is ob- also 13onafous v. Walker, 2 T. R. 126. 
 tained, the return to which proves the (y) Evans v. Manero, 9 Uowl. 265. 
 
 fact of his being in custody : Stark. (2) See 1 Sid. 132 ; and see ante. 
 
 on Evid. part. 4, 1347.
 
 ESCAPE. 217 
 
 consequence oi voluntarily permitting him to escape («). If tlie chap. vn. 
 escape be negUgeiit, the sheriff' may maintain an action against stcT\^i^ 
 the defendant for escaping, although the sheriff' has not been 
 sued for the escape (h) ; or, as we have seen, the sheriff' may 
 retake the defendant after a negh'gent escape, which will be a 
 good defence to an action commenced after such recaption (c) ; 
 or, if the defendant be retaken when an action has already been 
 brought against the sheriff) he may be detained until he satisfy 
 the sheriff' the damages sustained by reason of the escape ((Z)- 
 
 The court will not stay proceedings in an action commenced Siajing pro- 
 against a sheriff', on payment of costs, where the defendant was 
 privileged from arrest : thus, where the defendant was arrested 
 on a ca. sa., and the defendant, on producing his certificate 
 under a commission of bankruptcy, was discharged out of cus- 
 tody by the officer, the court refused to grant a rule nisi to 
 stay proceedings in an action commenced for an escape, saying 
 that they would not try the merits of the action on affidavits (e). 
 But where a sheriff' had arrested the defendant on a ca. sa,, 
 issued erroneously on a recognizance of bail taken in C. P., and 
 discharged him out of custody on payment of debt and costs, 
 which money the sheriff' refused to pay over, in consequence of 
 having received a notice that the money belonged to the assig- 
 nees of the defendant, who had become bankrupt ; the Court of 
 Common Pleas relieved the sheriff' from an action commenced 
 against him for an escape, allowing the plaintiff' to litigate his 
 right to the money on the money counts (/). 
 
 (a) Pitcher v. Bailey, 8 East, 171 ; (cl) Dalt. 139; Ridgvvay's case, 3 
 
 Eyles V. Faikney, Peake's N. P. C. Rep. 52. 
 
 144,1).; Barnes, 373; Dalt. 138. See (c) Sherwood u. Benson, 4 Taunt. 
 
 alsoDyer,275; Plowd.36a. 631. 
 
 (6) SheritTs of Norwich v. Brad- (/) Wooden v. JMoxon, 6 Taunt, 
 
 shaw. Cro. Eliz. 53. 490 ; 2 Marsh. 186, S. C. 
 
 (c) See ante, 203.
 
 ( 218 ) 
 
 CHAPTER VIII. 
 
 TlIK SlIEKll'i's DUTY IN THE EXECUTION AND RETURN Oi 
 PROCESS OF OUTLAWRY. 
 
 Sect. I. — Of the Exigent and Writ of Proclamations. — In what 
 Cases and in what Manner a Party may j^yoceed to 
 Outlawry. — Exigent, how executed. — Return, how 
 tnade. — JVrit of Proclamations, on Outlawry in 
 Civil Actions ; on Lidictments ; ivhen required, how 
 made. — Sheriff's Return, form of; into what Office 
 made, — Fees thereon. 
 II. — Of the general and special [Frits of Capias Utla- 
 galum ; how executed. — Bail, how taken on. — Sj)p- 
 cial Capias Utlagatum, how executed. — Form of the 
 Inquisition. — Sheriff's Return. — Preference between 
 several Writs of Capias Utlagatum ; Fees thereon. 
 — Actions against the Sheriff. — Restitution. 
 
 Section I. 
 
 Of the Exigent and Writ of Proclamations. 
 
 Ill what cases ^T tlic comition law, vvhercver a capias lay, a person might be 
 outlawry lies, outlawed, but not Otherwise («) ; indeed, for some time after the 
 Conquest, so penal were the consequences of outlawry (the 
 punishment whereof was death), that no man could have been 
 outlawed except for felony (b). In early times, however, persons 
 were outlawed on all indictments for offences at the common 
 law, as well for misdemeanors (c) as for treason or feiony ; but 
 it seems that a person cannot be outlawed in an action, or in- 
 dictment on a statute, unless it be given expressly by such 
 statute, as in the case of prcemunire ; or impliedly, as in cases 
 made treason or felony by statute ; or where a recovery is given 
 by an action in which such process lay before, as in the case of 
 
 (a) Bac. Abr. Outlawry (A) ; Co. LiU. 128. 
 Litt. 128. (c) Rex v. Wilkes, 4 Burr. 2557, 
 
 (h) Bracton, lib. 5, p. 425 ; Co. 8 ; Co. LiU. 128.
 
 OUTLAWRY. 
 
 219 
 
 a forcible entry (d). At the common law, in civil actions chai-. vm. 
 
 , . , . . . . SECT. I. 
 
 where a capias lay m process, as m trespass m ct arvus, a pro- 
 
 cess of outlawry lay also (e). And by several statutes (/) 
 (which introduced the capias) process of outlawry lies, as in the 
 actions of account, debt, detinue, replevin {g), actions on the 
 case {K), and several other actions. Outlawry is either on 
 mesne process before, or on final process after, judgment. For- 
 merly, in the Queen's Bench, a person could not be outlawed 
 either before (j) or after {1c) judgment, except the proceedings 
 were by original. In the Common Pleas, a person might be 
 outlawed either on a common quare clausinnf regit [I), or on a 
 sj)ecial original. But in the Exchequer a person could not be 
 outlawed, as the plaintiff could not proceed there by original (m). 
 An inferior court could not in any case, for the same reason, 
 award process of outlawry (?i). At the present day, the writ of 
 capias being no longer the commencement of an action, but all 
 actions being commenced by writ of summons, the mode of pro- Mode of pio. 
 ceeding to outlawry in a civil action before judgment is regulated omiawry." 
 by the Uniformity of Process Act, 2 Will. 4-, c. 39 ; the third 
 section of which enacts, that " in case it shall be made appear by 
 affidavit, to the satisfaction of the court out of which the process 
 issued, or, in vacation, of any judge of either of the said courts, 
 (' his majesty's superior courts of law at Westminster,' sect. 1), 
 that any defendant has not been personally served with any 
 such writ of summons as hereinbefore mentioned, and has not, 
 according to the exigency thereof, appeared to the action, and 
 cannot be compelled to do so without some more efficacious 
 process, then and in any such case it shall be lawful for such 
 court or judge to order a writ o{ distringas to be issued, directed 
 to the sheriff of the county wherein the dwelling-house or place 
 of abode of such defendant shall be situate, or to the sheriff of 
 any other county, or to any other officer to be named by such 
 
 (d) Bac. Abr. Outlawry (A). (k) Ciewsv.Bayles.Cio. Eliz.215 j 
 
 (e) 35 Hen. 6, 66; 22 Hen. 6, 13-, lLeon.329. 
 Rast. Ent. 293; 10 Rep. 72. (0 Barnes, 324. 
 
 (/ ) Co. Liu. 128 ; Bac. Abr. Out- (m) Horton v. Peake, 1 Price, 306. 
 
 lawry (A) ; 25 Edw. 3, c. 17. («) See Ward v. Elleyn, Cro, ,Tac. 
 
 (g) 25 Edw. 3, c. 17; Earl of 251; 1 Sid. 248 ; 1 Keb. 890, 908; . 
 
 Banbury i'. Wood, 2 Ld. Raym. 987 ; Doug. 62. See also Williams v. Lord 
 
 Salk. 5, S. C. ; 6 Mod. 84. Bagot, 3 Barn. & Cress. 772 ; 5 
 
 (h) 19 Hen. 7, c. 9. Dowl. & Ry. 719, S. C. 
 
 (i) See Davis i'. Isaac, 1 Sid. 159.
 
 220 OUTLAWRY. 
 
 SECT. I. 
 
 CHAP. VIII. court or judge, in order to compel the appearance of such de- 
 fendant; wliici) writ of distri7iga.'i shall be in the form, and with 
 the notice subscribed thereto, mentioned in the schedule to this 
 act, marked No. 3 ; which writ of distringas and notice, or a 
 copy thereof, shall be served on such defendant, if he can be met 
 with, or, if not, shall be left at the place where such distringas 
 shall be executed ; and a true copy of every such writ and 
 notice shall be delivered together therewith to the sheriff or other 
 officer to whom such writ shall be directed ; and every such 
 writ shall be made returnable on some day in term, not being 
 less than fifteen days after the teste thereof, and shall bear teste 
 on the day of the issuing thereof, whether in term or in vacation; 
 and if such writ of distringas shall be returned 7wn est inventus 
 and nulla bona, and the party suing out such writ shall not 
 intend to proceed to outlawry or waiver, according to the autho- 
 rity hereinafter given, and any defendant against whom any such 
 writ of distringas issued shall not appear at or within eiglit days 
 inclusive after the return thereof, and it shall be made appear 
 by affidavit to the satisfaction of the court out of which such 
 writ of distringas issued, or, in vacation, of any judge of either 
 of the said courts, that due and proper means were taken and 
 used to serve and execute such writ of distringas, it shall be 
 lawful for such court or judge to authorize the party suing out 
 such writ to enter an appearance for such defendant, and to pro- 
 ceed thereon to judgment and execution." 
 
 The 5th section of the same act enacts, " that upon the 
 return of non est inventus and md/a bona as to any defendant 
 against whom such writ of distringas as hereinbefore men- 
 tioned shall have issued, whether such writ of distringas shall 
 have issued against such defendant only, or against such defend- 
 ant and any other person or persons, it shall be lawful, until 
 otherwise provided for, to proceed to outlaw or waive such 
 defendant by writs of exigi facias and proclamation, and other- 
 wise, in such and the same manner as may now be lawfully done 
 upon the return of non est inventus to a pluries writ of cajnas ad 
 respondendum issued after an original writ : provided always, 
 that every such writ of exigent, proclamation, and other writ, 
 subsequent to the writ of distringas, shall be made returnable on 
 a day certain in term ; and every such first writ of exigent and 
 proclamation shall bear teste on the day of the return of the writ of 
 distringas, whether such writ be returned in term or in vacation ;
 
 OUTLAWRY. 221 
 
 and every subsequent writ of exigent and proclamation shall chap. vm. 
 bear teste on the day of the return of the next preceding writ; ^^^'^' '' 
 and no such writ of distringas shall be sufficient for the purpose 
 of outlawry or waiver, if the same be returned within less than 
 fifteen days (o) after the delivery thereof to the sheriff or other 
 oflScer to whom the same shall be directed (p). 
 
 The 6th section provides, " that, after judgment given in any 
 action commenced by writ of summons under the authority of 
 this act, proceedings to outlawry or waiver may be had and 
 taken, and judgment of outlawry or waiver given, in such man- 
 ner and in such cases as may now be lawfully done after judg- 
 ment in an action commenced by original writ; provided always, 
 that every outlawry or waiver had under the authority of this 
 act may be vacated or set aside by writ of error or motion, in 
 like manner as outlawry or waiver founded on an original writ 
 may now be vacated or set aside." 
 
 The effect of this statute and of the 1 1 Geo. 4 & 1 Will. 4, 
 c. 70, s. 14, is, that a defendant may now be outlawed in the 
 Exchequer as in any other of the superior courts {q) ; but the 
 writ of capias ntlagaturn and inquisition are returned into the 
 office of the queen's remembrancer; and on an application to 
 traverse the inquisition, the affidavit must be intituled in that 
 office, and the counsel must be instructed by a sworn clerk (r). 
 
 Justices of oyer and terminer, and justices of the peace in 
 their sessions, have power to award process of outlawry upon 
 indictments found before them (5). 
 
 A peer, or a member of the House of Commons, cannot be 
 outlawed, excepting on an indictment ; but upon an indictment 
 
 (0) There must be fifteen c/ea?- days Dowl. 10; Nugee v. Swinfoid, 9 
 
 between llie delivery and the return Dowl. 1038; Round v. Brown, 1 
 
 of the writ; Chambers ■«. Smith, 12 Dowl. N. S. 860. 
 
 M. & VV.2. If made returnable on (q) 2 Dowl. 42. See 2 Will. 4, 
 
 a Sunday, it is a nullity ; Rlorrison «. c. 39, s. 7, whereby the Lord Chief 
 
 Mauley, 1 Dowl. N. S. 773. Baron is required lo appoint a fit per- 
 
 (p) As lo the cases in wliicli a son, holding some other olhce in the 
 
 dislringas will be granted for the pur- Court of Exchequer, to execute the 
 
 pose of proceeding to outlawry, the duties of a filacer, exigenter, and 
 
 requisites of the writ, &c. see Hewitt clerk of the outlawries in that court. 
 
 V. Melton, 3 Tyiw. 822; Fraser v. (r) 6 M. 6c W. 278. 
 
 Case, 9 Bing. 464 ; 4 M. & Scott, (s) Bac. Abr. Outlawry (B). But 
 
 720, S. C. ; Jones u. Price, 2 Dowl. \.hey annothsue a. capias ntlngatnm ; 
 
 42; Reay «. Youde, 2 M.&W. 188; the record of outlawry must be re- 
 
 Vere r. (jowai, 3 Bing. N. C. 503; turned into the Queen's Bench and 
 
 4 Scott, 287, S. C. ; LewisD. Davison, thence a capius vtlagalum issues; 
 
 1 C. M.&.R.655; 3 Dowl 272,S.C.; Dalt. 406. A capias must issue be- 
 
 Partridge v. Wallbank, 2 M. & \V. fore the exigent; 6 Hen. 6, c. 1 ; 8 
 
 893; Simpson v. Lord Graves, 2 Hen. 6, c. 10 ; 10 Hen. 6, c. 6.
 
 222 OUTLAWRY. 
 
 CHAP. VIII. for a misdemeanor, as for a libel, riot, or the like, process of out- 
 . ^^^^' ^' — lawry will lie against a peer(<), A person outlawed was sup- 
 posed to be put out of the law ; but women are not said to be 
 outlawed, but waived ; for as wonnen were not sworn to the law 
 by taking the oath of allegiance, (as men anciently were, when 
 of the age of twelve years or upwards,) therefore a woman can- 
 not be outlawed (u) ; and, for the same reason, an infant under 
 the age of twelve years cannot be outlawed(a;). 
 Of the writ 1 he writ of cx'igi facias is the first proceeding after the return 
 
 otexiyent. of ?2ora est inventus and nulla bona to the distringas (y). It must 
 be tested on the day of the return of the distringas ; but it is 
 not necessary that it should be actually sued out on that day (a). 
 After judgment, it may be issued on the return of non est in- 
 ventus to the cajnas, without an alias or pluries{a) ; but for this 
 purpose the capias must have a fixed return, and the exigi facias 
 cannot be grounded upon a capias returnable immediately after 
 execution, under 3 & 4 Will. 4, c. 67 {b). The writ of exigi 
 facias is directed to the sheriff of the county where the venue in 
 the action is laid, or where the indictment is found, commanding 
 him to cause the defendant to be required from county court to 
 county court, or from busting to busting, if in London. And if 
 there be x\oi five county courts between the teste and return of the 
 writ of exigi facias, there issues upon the sheriff's return there- 
 to an exigent de novo, with a clause directing the sheriff to allow 
 the several county courts at which the defendant has been 
 already required, thence called the allocatur exigent. 
 Exigent how Th^ mode in which the sheriff should execute the writ of exi- 
 gent is by calling upon the defendant, at each county court after 
 the receipt of the writ, to appear ; and the sheriff must not 
 omit any county court, for if a county court intervene between 
 any of the exactions without the defendant being demanded 
 there, it is error (c). On mesne process, if the defendant 
 
 (t) 2 Hal. P. C. 199, 200 ; Bac. (s) Lewis v. Davison, 1 C. M. & 
 
 Abr. Outlawry (C). The court will R. 655 ; Vere y. Gowar, 3 Bing. N. 
 
 not, therefore, grant a distringas to C. 503 ; 4 Scott, 287, S. C. 
 
 proceed to outlawry against a peer ; (a) Tidds Prac. 128, 8th edit. See 
 
 Taylor v. Lord Stuart de llothsay, 2 Reg. Gen. H. 2 Will. 4, r. 94. 
 
 Dowl. N. S. 121. (h) Lewis D. Holmes, 16 Law J, 
 
 (w) Co. Lilt. 122 b; Litt. 186; 430, Q. B. 
 
 Middleton's case, Cro. Jac. 358; (c) Plowd. 371. And it would 
 
 Haiman's case, 1 Roll. Rep. 407. appear that if there be five county 
 
 (x) Co. Litt. 128 a ; 2 Roll. Abr. courts between the teste and the re- 
 
 805 ; Fitz. Outlawry, 11. turn of the exigent, although only one 
 
 (y) Bac. Abr. Outlawry (B^. or two after the receipt of the writ; 
 
 to be exe- 
 cuted.
 
 WRIT OF EXIGENT HOW EXECUTED RETURN. 223 
 
 appear on tlie exigent, the sheriff* may take bail from him as in ciiap.vhi. 
 
 ordinary cases (e). But after judgment, if the defendant appear _sectjJ^ 
 
 or be taken on the ex'igcnt, the sheriff* must keep him in close 
 custody, as on a ca. sa. In criminal proceedings, where the de- 
 fendant is not bailable, as in treason or felony, it is clear that 
 the sheriff" should keep the defendant in custody ; but before 
 judgment, if the defendant appear upon the exigent, issued on 
 an indictment for a misdemeanor, it is apprehended that the 
 sheriff* might take a recognizance for his appearance (c/) ; but 
 after judgment it is clear that he could not, but that he should 
 keep him in safe custody (e). After being five times demanded, 
 if proclamations have been duly made, the defendant is de- 
 clared to be outlawed by the coroner of the county in the county 
 court (/). The judgment of outlawry is not complete unless it 
 has been entered on the rolls, and it is not sufficient to state simply 
 that the writ of exigent was duly returned by the sheriff'(^). 
 
 Great particularity is required in the return to the exigent, ^*|,'""' ^""''^ 
 for as the consequences of outlawry are considered so penal, 
 any irregularity will be fatal. As if an exigent issue against 
 several persons, one of whom is a woman, and the return be 
 that they were qiiinto exacti and outlawed, it is bad, for it should 
 have been that the woman was waived (h). The sheriff* must 
 return that the defendant was demanded at his county court, 
 and must show that the county court was holden in and for the 
 county whereof he is sheriff", otherwise it is bad : therefore, a 
 return stating that the defendant was demanded at my county 
 court holden at S., in the county of N., without saying for the 
 county of N., was holden to be bad(i). The return must par- 
 ticularly specify the days, by naming the day and year of each 
 
 yet if the sheriff return that the cle- (e) 4 Burr. 2537. 
 fendant has been demanded at the (/) Dalt. 240. And if the out- 
 five county courts, this is regular. iawry be on tlie day that the aUocaluv 
 See Taylor v. Waters, 3 Dowl.6c Ry. exigent bears teste, it is bad ; Archer v. 
 575; 2 Bar. & C. 353, S. C. Sed Archer, Cro. Jac. 660; Palm. 280, 
 vide Volet V. Waters, 3 D. & R. 55. S. C. 
 
 (c) See Tidd's Prac. 130, 8th edit. (g) Attorney-General w. Rickards, 
 
 (d) Dalton, 26, And see Ben- 14 Law J., Chan., 363. 
 
 gough D. Rossiter, 4 T. R. 505 ; S, C. (h) Middleton's case, Cro. Jac. 
 
 in error, 2 H. Biac, 418, where it was 358. See also 1 Rol. Rep. 407. 
 
 decided that the sheriff could not take (i) Rex v. Wilkes, 4 Burr. 2563. 
 
 a bail-bond from a person arrested by And see Whiting's case, 2 Roll. Abr. 
 
 him on a capias issuing from the 802, and other cases cited in Burr, 
 
 ([uarter sessions on an indictment. 2563.
 
 024 OUTLAWRY. 
 
 CHAP. VIII. occasion on wliicli the defcMidant was demanded (j) ; and if the 
 _Ai':!:i:__ year be not added to tlie day on whicli the demand is alleged to 
 be made, the return will be bad (A). It is said to be necessary 
 to state the year as the year of the king's or queen's reign (0- 
 If the sheriff return that the defendant was demanded on five 
 several county courts between the teste and return of the writ or 
 writs of exigent, the proceedings are regular, although some of 
 those days of exactions were he/ore the delivery of the writ or 
 writs of exigent to the sheriff (m)- 1''"^ "^"""^ ^^ ^^^^ coroner by 
 whom outlawry was pronounced must be inserted in the return 
 of quinto exactus, and he must be stated to be coroner, but the 
 coroner need not sign the return («). Where there are not five 
 county courts between the teste and the return of the exigent, 
 the sheriff should return this, in order that the plaintiff may 
 issue an allocatur exigent (o). It is said that it is not a good 
 return to say that the defendant is dead, as an excuse for the 
 sheriff not executing the exigent, for it is the sheriff's duty to 
 call the defendant at all events (;)). If the defendant be in the 
 sheriff's custody at the time of the delivery of the writ of exi- 
 gent to the sheriff, or before the quinto exactus, the sheriff 
 should return this (<y). If a supersedeas have been delivered to 
 the sheriff before the return-day of the exigent, this should be 
 returned by the sheriff (r). 
 Of the pro- In addition to the exigent, a writ of proclamation was intro- 
 
 c'ivrprocced- d"ced by the statute 6 Hen. 8, c. 4, which, requires it to be 
 ing9. directed to the sheriff of the county of which the defendant is 
 
 called or described in the original, for there he was supposed to 
 dwell. But the writ of proclamation in civil proceedings is now 
 governed by the statute 31 Eliz. c. 3, s. 1, which enacts, that 
 " in every action personal, wherein any writ of exigent shall be 
 awarded out of any courts one writ of proclamation shall be 
 awarded and made out of tlie same court, having the day of 
 
 (j) Rex V. Almon, 5 T. R. 202. (o) See return, Yiost, Append, c. 8, 
 
 (/c) Id. ibid.; 2 Roll. Abr. 802, s. 1. 
 pi. 8. (p) Dalt. 239: sed qiiere. It is 
 
 (/) Fer BuUer, J., 5 T. R. 205. questioned by Dalton (239), whether 
 
 But see Crosse's case, Haidr. 6, or not the sheriff should proceed in 
 
 contra. case of the death of the king, but it 
 
 (m) Taylor n. Waters, 3 Dowl. & appears that he should. 
 Ry. 575; 2 B. & C. 353,S,C. But (7) Dalt. 239. See form, p«s(, 
 
 see Volet v. Waters, 3 Dowl. & Ry. Append, c. 8, s. 1. 
 ,55. (»•) See form, post, Append, c. 8, 
 
 (n) Rex V. Yandell, 4 T. R. 533. s. 1.
 
 PROCLAMATIONS. 
 
 225 
 
 teste and return, as the said writ of exigent shall have directed chap. vm. 
 and delivered of record to the sheriff of the county where the U— 
 
 defendant at the time of the exigent so awarded shall be dwelling, 
 whicli writ of proclamation shall contain the effect of the same 
 action ; and the sheriff of the county, unto whom any such 
 writ of proclamation shall be delivered, shall make three pro- 
 clamations, one in the oj^en county court, another at the general 
 quarter sessions of the peace, in those parts where the defendant 
 at the time of the exigent awarded shall be dwelling, and the 
 third one month at the least before the quinto exactus, by virtue 
 of the said writ of exigent, at or near to the most usual door 
 of the church or chapel of that town or parish wliere the de- 
 fendant shall be dwelling at the time of the exigent awarded ; 
 and if the defendant shall be dwelling out of any parish, then 
 in such place as aforesaid of the next adjoining parish in the 
 same county next adjoining to the place of the defendant's 
 dwelling ; and upon a Sunday immediately after divine ser- 
 vice (5); and tliat all outlawries had and pronounced, where- 
 upon no writs of proclamation shall be awarded and returned 
 according to the form of this statute, shall be utterly void and 
 of none effect." 
 
 By the statute 4 & 5 Will. & Mary, c. 22, s. 4, made per- w,it of pm- 
 
 _ "^ clamalion on 
 
 petual by 7 & 8 Will. 3, c. 36, s. 4, it is enacted, " that upon the indicimems. 
 issuing of any exigent out of any of their majesties' courts against 
 any person or persons for any criminal matter, before judgment 
 or conviciion, there shall issue out a writ of proclamation, bear- 
 ing the same teste and return, to the sheriff or sheriffs of the 
 county, city or town corporate, where the person or persons in 
 the record of the said proceedings is or are mentioned to be or 
 inhabit, according to the form of the statute made in the one- 
 
 (s) But by the statute 1 Vict. c. 45, doors of all the churclies or chapels 
 
 all proclamations theretofore made in v;iihin such parish or place; and such 
 
 churches or chapels during or after notices, when so affixed, shall be in 
 
 divine service aie to be reduced into lieu of and as a substitution for the 
 
 writing, and copies thereof, either in several proclamations and notices so 
 
 writing or in print, or partly in writing theretofore made as aforesaid, and 
 
 and partly in print, shall, previously shall be good, valid and effectual to all 
 
 to the commencement of divine ser- intents and purposes. Affixing the 
 
 vice on tiie several days on which such notice on the principal door of each 
 
 proclamationshad thertoforebeenmade church or chapel of the Establishment 
 
 in the church or chapel of any parish is sufficient ; Ormerod v. Chadwick, 
 
 or place, or at the door of any church 16 M. & W. 367. 
 or chapel, be affixed on or near to the
 
 226 
 
 OUTLAWRY. 
 
 CHAP. VIII. and-tliirtietli year of the reign of Queen Elizabeth, which writ 
 ^^^^' '' of proclamation shall be delivered to the said sheriff or sheriffs 
 three months before the return of the same." 
 
 In what cases This last Statute only extends the provisions of the statute 
 of Elizabeth to criminal cases before judgment, but leaves un- 
 touched cases of outlawry in criminal matters after conviction; 
 in such case no proclamation is required {t). The writ of pro- 
 clamations should have the same teste and return as the exigent. 
 The writ, when issued into a different county from that into 
 which the exigent issued, is called a foreign proclamation. 
 
 How made. The sheriff makes his warrant to his bailiff, authorizing him 
 to make proclamations according to the exigency of the writ. 
 In making the proclamations, the order prescribed by the 
 statute must be followed, first, at the county court, next at 
 the sessions, and, last, by affixing notice on the church door 
 on a Sunday, before divine service. If the first Sunday 
 next after the quarter sessions happen to be the return day of 
 the writ, the proclamation may be made on that day, and so 
 stated in the return. The proclamation must be affixed to the 
 door of the parish church of the last residence of the defendant 
 in the county ; if it be the church door of the parish whereof 
 the defendant was styled in the writ, and where he lived when 
 he gave a bond, the foundation of the action, that parish not 
 being his residence at the time of proclamation made, the pro- 
 clamation is void (ii). This last proclamation on the church 
 door must be made at least one month before the quinto ex- 
 actus (x). 
 
 Sheriff's re- The sheriff should return to the writ of proclamations, that he 
 has caused the defendant to be proclaimed, either generally, 
 according to the form of the statute (y), or specially, setting 
 forth the times and places when and where the proclamations 
 were made (s). If there be not a Sunday after the sessions and 
 before the return- day of the writ, the return must allege that 
 proclamations were made at the county court and at the sessions, 
 
 (t) Eex v. Wilkes, 4 Burr. 2559. riff's hands, see Volet v. Waters, 3 
 
 (u) Rayer v. Cooke, 3 Bar. & Dowl. & Ry. 55. 
 
 Cress. 529; 5 Dowl. & Ry. 392, (t/) Tidd's Prac. 8th ed. 130, 139. 
 
 S. C. It may be questionable whether this 
 
 (x) Taylor v. Waters, 2 Bar. &c return would not be too general ; Rex 
 
 Cress. 353 ; 3 Dowl. & Ry. 575, v. Wilkes, 4 Burr. 2559. 
 
 S. C. As to a return of proclamation (s) See form, Append, c. 8, s. 1. 
 
 made before the writ was in the she- 
 
 tarn
 
 PROCLAMATIONS. 
 
 227 
 
 but, because there was no Sunday after the sessions, the third chap. vm. 
 
 proclamation could not be made; so if only one proclamation ^'''^^''' 
 
 were made, as if there were no quarter sessions between the 
 teste and return of the writ of proclamation, the return must 
 agree with the fact (a). The sheriff should also return, that the 
 defendant was outlawed by the coroner ; but the sheriff may 
 return (if the fact be so) that the coroners were absent, or that 
 only one coroner was there, who refused to pronounce the out- 
 lawry (b). 
 
 When the exigent and writ of proclamation are returned, they into what 
 should be taken to i\ie filacer in the Queen's Bench ; but in the turned. 
 Common Pleas the exigent is taken to the clerk of the outlawries, 
 and the writ of proclamation filed with the exigenter (c). 
 
 The sheriff is not entitled to any fee for making the procla- Fees thereon, 
 mations at the county court or at the sessions; but by the 31 
 Eliz. c. 3, he is entitled to a fee of one shilling for the procla- 
 mation at the church door {d ). As to the fee for the warrant, 
 see ante, p. 103. 
 
 Formerly no averment could be made against the sheriff's Reversal of 
 
 1 • p • 1 • 1 -r 1 1 outlawry for 
 
 return to the writs of exigent or proclamations, but if the de- want of pro- 
 fendant were outlawed without proclamations, his only remedy 
 was by action on the case against the sherifr(e). But now, by 
 the 31 Eliz. c. 3, the outlawry may be reversed for want of 
 proclamations as prescribed by that statute. 
 
 clamations. 
 
 Section II. 
 
 Capias Utlagatum. 
 
 On the return of the exigent, the next process is the writ of Ofihe general 
 «,., 1--11 iji "'"' *p*<='ai 
 
 capias utlagatum ; of this there are two kinds, the general and the writs of 
 
 capias utla- 
 gatum. 
 (a) Where the proclamation is bad, be given, but in general in such case it 
 
 so as it is considered as no proclama- is required in the alternative ; Waters 
 
 lion, the bail, by the 31 Eliz. e. 3, v. Taylor, 2 B. &C. 353; 3 Dowl. 
 
 s. 3, on reversing the outlawry, must & Ry. 675, S. C. 
 
 be given to answer the condemnation (6) Dalt. 240. 
 
 money ; Raver v. Cooke, 3 Bar. & C. (c) Tidd's Prac. 130, 8th edit. 
 
 529; 5 Dowl. & Ry. 302, S. C. (d) The sheriff is also entitled to 
 
 Where there is only an irregularity in one shilling for his return. 
 
 making the proclamations, it is op- {e) Bro. Action sur le case, 122. 
 
 tional how the court will order bail to 
 
 Q 2
 
 228 OUTLAWRY. 
 
 CHAP. VIII. special capias utiagatum. The general writ commands the 
 
 ! — L. sheriff not to omit by reason of any liberty, but that he take the 
 
 defendant and have him in court on the return day, to do and 
 receive what the court shall consider of him in that bel)alf(_/). 
 The special writ of capias utiagatum commands the sheriff to 
 take the defendant in the same manner as the general writ, and 
 also " to inquire by the oath of honest and lawful men of his 
 county what goods and chattels, lands and tenements he hath, 
 or had on the day of his outlawry, or at any time afterwards ; 
 and by their oath to extend and appraise the same according to 
 their true value ; and to take them into the king's hands, and 
 safely keep them, so that he may answer to the king for their 
 true value and issues of the same, making known what he shall 
 do thereupon to the court on the return day(g-)." 
 How ese- In executing a capias utiagatum, even on civil process, it 
 
 appears that the officer may break open the outer door of a 
 house to take the defendant or his goods (Ji). The writ is a non 
 omittas, and therefore the sheriff may execute the writ within a 
 liberty without sending his mandate to the bailiff of the liberty; 
 a capias utiagatum in civil suits cannot be executed on a Sun- 
 day (i). The death of the defendant in a civil suit determines 
 the outlawry {j). But in criminal cases, outlawry works an 
 entire forfeiture of the outlaw's estate, both real and personal. 
 Where the outlaw dies after the teste of the special capias utia- 
 gatum, it would appear that the sheriff still should proceed and 
 hold the inquisition, and leave the representatives of the outlaw 
 to obtain restitution in the Court of Exchequer, for the personal 
 chattels are forfeited by the outlawry (^). If a. feme sole be 
 waived, and she marry after the exigent, but before the outlawry, 
 she may nevertheless be taken on a capias utiagatum (I). And 
 if the defendant has become bankrupt, and obtained his certifi- 
 cate, by which the cause of action would be barred, yet the 
 sheriff must take him on the capias utiagatum ; nor will the 
 
 (/) See Forms, Reg. Brev. 138; (i) Osborne v. Carter, Barnes, 319. 
 
 Tidd's Forms, 51, 5lh edit.; Arch- ( /) See 1 Tidd's Prac. 141. 8th ed. 
 
 bold'sForms, 523, 524. (k) Salk. 395; Bac. Abr. Out- 
 
 (g) Tidd's Forms, 51, 52; Arch- lawry(D)2. 
 
 hold's Forms, 524. (/) White v. Dunster, Barnes, 
 
 (/i) Rex V. Bird, 2 Show. 87. Sed 321 ; see Briscoe v. Kennedy, 2 Wils. 
 
 vide Golds. 179; 4 Leon. 41; Moore, 127. 
 609; Cro, Eliz. 908; Yelv, 28.
 
 CAPIAS UTLAGATUM. ' 229 
 
 courts discharge liim excepting on putting in special bail (wz). chap. vm. 
 
 But a bankrupt cannot be arrested on a capias utlagatum during ^ '. — '— 
 
 the period of protection given hiin by the Bankrupt Act {cinte, 
 p, 139) ; and if he be, the Court of Bankruptcy will discharge 
 him (n). 
 
 At the common law, the sheriff could not have taken bail and in what cases 
 discharged the defendant, arrested by him on a capias utla- ma/tTue bail 
 gatum; this case is particularly excepted out of the 23 Hen. 6, ^"la/atum! 
 c. 9 ; and by the stat. 13 Car. 2, stat. 2, c. 2, s.4, it is expressly 
 enacted "that no sheriff, &c. shall discharge any person or 
 persons taken upon any v/rit of capias utlagatum out of custody, 
 without a lawful supersedeas first had and received for the 
 same." But by the statute 4 & 5 Will. & Mary, c. 18, s, 4, 
 " If any person outlawed in the Court of King's Bench, other 
 than for treason and felony, shall be taken and arrested upon 
 any capias utlagatum out of the said court, the sheriff making 
 the arrest may, in all cases where special bail is not required by 
 the said court, take an attorney's engagement under his hand to 
 appear for the defendant, and reverse the outlawry, and may 
 therefore discharge the defendant from such arrest. And in 
 those cases where special bail is required by the said court (o), 
 the sherifT shall and may take security by bond, with one or more 
 sufficient surety or sureties, in tlie penalty of double the sum 
 for which special bail is required, and no more, for his appear- 
 ance by attorney, in court at the return of the writ, and to do 
 and perform sucli things as shall be required by the same court, 
 and, after such bond taken, may discharge the defendant from 
 the said arrest." And by section 5 of the same statute, in case 
 the defendant shall not be able to give security as aforesaid, 
 before the return of the writ, in cases where special bail is re- 
 quired, he shall and may be discharged whenever he shall find 
 security to the sheriff for his appearance, by attorney, in the 
 said court, at some return in the ensuing term, to reverse the 
 outlawry, and to do and perform such other thing and things as 
 shall be required by the said court. This statute only in terms 
 
 (m) See Beauchainp D. Tomkins, 3 (o) The attorney's engagement 
 
 Taunt. 141 ; Sunimeiville i;. Watkins, would now be sutficient in all cases, 
 
 14 East, 536 J Absthorpe i;. Fiske, 8 special bail being no longer necessary 
 
 Dowl. 68. except in the case provided for by I 
 
 (?0 Ex parte Hemsley, 1 Deac. & & 2 Vict. c. 110, s. 4. 
 Ch. 16.
 
 230 OUTLAWRY. 
 
 CHAP. VIII. applies to writs of capias utlagatum issuing out of the Court of 
 ^^^'^' "• Queen's Bench, but it has been the practice to take bail as pre- 
 scribed by this act on such writs issuing out of the Common 
 Pleas ( js). It would appear that the sheriff has not power to 
 bail a defendant under this statute in any criminal case ; but it 
 is worthy of observation, that although treason and felony are 
 expressly, yet that misdemeanors are not, excepted out of the 
 operation of the act ; and it appears to be doubtful whether the 
 act is or is not confined to civil actions only (y). However, it 
 has been decided that a defendant is not bailable on a capias 
 utlagatum upon an indictment for a misdemeanor after convic- 
 tion (r). 
 Special The sheriff, on the special capias utlagatum, is first required 
 
 capian ufla- i i /> i i • i • /^ i i i i 
 
 yatum, b.w to take the defendant, which if done, and he appear to the 
 original action, it is said not to be usual to extend the goods, 
 and to impanel a jury. But if the defendant be not taken, it is 
 the sheriff's duty to impanel a jury, who are to inquire of the 
 goods and chattels (*) of the defendant, including his debts (i) and 
 choses in action, and also of his leasehold and freehold lands 
 and tenements ; and to appraise the goods, and to extend the 
 value of the lands, &c.(u). But the sheriff cannot extend copy- 
 hold lands (a;), or trust property (?/), on a capias utlagatum. 
 Witnesses should be summoned to attend the execution of the 
 inquiry ; and when the inquest is made, the sheriff is to take 
 possession of the goods and chattels found by the inquest to 
 belong to the defendant at the time of the outlawry (s), or pur- 
 
 (p) Sell. Prac. 398. See observa- (u) See Bank of England v, Reid, 
 
 tions of Chambre, J., 3 Taunt. 144. 8 Dowl, 851. 
 
 (9) It seems to have been the opi- (x) Rex v. Budd, Paiker, 190. 
 
 nion of some of the judges in Rex »;. (y) It seems that the statute 29 
 
 ■yVilkes (4 Burr. 2540), that the sla- Car. 2, c. 3, s. 10, does not apply to 
 
 tute only applied to civil actions. this case; Tidd's Pr?c. 134, Bih edit. 
 
 (j) Rex V. Wilkes, 4 Burr. 2539. Sed vide 2 Roi. Abr. 807, 1. 12. 
 
 (s) As to what may be taken as the (2) Bui goods which the outlaw 
 
 goods and chattels of the defendant, hath in autre droit, as executor or 
 
 see post, chap. 11. administrator, cannot be taken, 11 
 
 (() Bullock t). Dodds. 2 B. & Aid. Hen. 6, 17, 37 : Cro. Eliz. 575, 851 j 
 
 276; Bio. Forfeiture, 107 ; see also 2 Rol. Abr. 806 ; nor a term of years 
 
 Slade's case, 4 Rep. 95; Lane, 23; which the outlaw hath as executor, 2 
 
 Lutw. 329, 1513; Dalt.83. Thecases Leon. 5, 6 ; Ander. 19; Moore, 100; 
 
 in 2 Rol. Abr. 452, 806 ; Cro. Eliz. Dyer, 309 ; or if a feme covert be 
 
 675, 851, contra, are denied to be waived, the term she had shall not be 
 
 law both in Bullock v. Dodds and in forfeited, for that belongs to her hus- 
 
 Slade's case. band, Dalt.83, cit.9 Hen. 6, fol. 52.
 
 CAPIAS UTLAGATUM. 231 
 
 chased between the outlawry and the time of taking the inqui- chap. vm. 
 sition(i); and also the sheriff may extend and take possession ^'^^"^•"' . 
 of the leasehold tenements in the occupation of the defendant. 
 But it is otherwise in the case of the freehold lands of the de- 
 fendant ; for although the king is entitled to take the profits of 
 the freehold lands on an outlawry in a civil suit, yet the defend- 
 ant cannot be disturbed in the occupation. The sheriff, upon a 
 levari facias in an outlawry, in taking for the king all the profits 
 of the lands, may mow or sever and take all the corn and grass 
 growing on the land, and may take the feed and herbage arising 
 on the grounds, &c., and the rents of the farmers, as the party 
 might ; but he cannot plough, sow, or grant the same, or cut or 
 crop the trees growing, or take fixtures, for they are part of the 
 freehold (c). If the outlaw, after the outlawry and before the 
 inquisition, make a lease of or alien his freehold land {d), the 
 profits of such land cannot be extended on a capias utlagalum 
 in a civil action ; it is, however, otherwise as to the personal 
 chattels of the outlaw, for immediately by the outlawry they are 
 forfeited ; but the profits of the land or chattels real are not 
 forfeited until inquisition taken (e). Cattle levant and couchant 
 on the land may be extended on a capias utlagatum, as the 
 issues and profits of the land (/). If a defendant, who is out- 
 lawed in a personal action, have an advowson of a church, which 
 becomes void during the time the outlawry is in force, the queen 
 shall present to the church ( o-). 
 
 The inquisition should set forth, with convenient certainty, Form of the 
 the appraised value of the goods, the particulars of the debts, 
 
 (6) Cartli. 442. feitedlo the queen, of whomsoever they 
 
 (c) Dalt. 82, 83; Rockley v. Wil- are holden ; and in case of outlawry 
 
 kinson, T. Jones, 100; Windsor v. of felony to the lord by escheat of 
 
 Say well, 1 Lev. 33 ; Plowd. 541 ; whom they are immediately holden. 
 
 Hard. 106. Indeed il is said that the See Hac. Abr. Outlawry (D) 1. 
 
 corn on the ground cannot be taken, ((i) Windsor d. Say well, I Lev. 33; 
 
 but only the rent; 2 Rol. Abr. 807. 1 Keb. 57, 74, 76, S. C. ; see Ha- 
 
 Arrearages of rent, reserved on lease mond's case. Hard. 176. 
 
 for life, are not forfeited by outlawry, (e) Britton v. Cole, 1 Ld. Raym. 
 
 for they are real ; otherwise if upon a 305 ; Salk. 395, S. C; Carth. 441 ; 
 
 lease for years; Hetl. 164. There is a 5 Mod. 112. Deer in a park cannot 
 
 distinction between outlawry in cri- beextendedon a ca/;2as ut/u^iHiiw; 10 
 
 minal and in civil cases; outlawry Hen. 7, 7 a. 
 
 on an indictment for treason or felony (/) Britton v. Cole, 1 Ld. Raym. 
 
 corrupts the blood, and causes an ab- 305 ; Salk. 395, S. C. 
 
 solute forfeiture of the party's estate, (^') 2 Kol. Abr. 807 ; and see Be- 
 both real and personal, viz. in case of verly v. Cornwall, Cro. Eliz. 44; Andr. 
 
 outlawry of treason his lands are for- 148.
 
 232 OUTLAWRY. 
 
 CHAP. VIII. of what lands, &c. the defendant is seised or possessed, the dif- 
 ^^^^' "• ferent parcels, in whose tenure, and their annual value beyond 
 reprises (A). The sheriff is only to take the profits on a levari 
 facias according to the extended value of the lands ; if they are 
 undervalued, the plaintiff should apply to the court to grant a 
 melius inquirendum (i) , 
 The siKriif Whatever goods and chattels the jury find to belong to the 
 
 Tmo his pos- defendant, the sheriff should seize and keep them safely until 
 good"''lc! ordered, to sell them by a writ of venditioni exponas, but he can- 
 lounrt. j^Qj. gg]j ti^gjTQ before he receives such writ (k) ; nor does he take 
 
 into his hands the debts of the defendant, or the profits of his 
 freehold estate, until he is ordered so to do by the Court of Ex- 
 chequer. After the return to the capias utlagaturn, a writ of 
 venditioni exponas issues, to sell the goods, a scire facias to col- 
 lect the debts, and a levari facias to levy the issues and profits 
 of the lands. In levying the issues and profits of the lands, the 
 sheriff, we have seen, may take cattle levant and couchant there- 
 on (/) ; he may mow and sever the corn and grass, and take the 
 rents as the party himself might do, but he cannot sow the 
 ground or cut trees (wi). 
 Return. The sheriff makes his return, when ruled, according to the 
 
 fact ; if the defendant is not to be found, he returns non est 
 inventus, or if he has taken the defendant and has him in custody, 
 or has discharged him on giving bail, he returns cepi corpus ; if 
 either goods or the profits of lands have been found by the in- 
 quisition on a special capias utlagatimi, the sheriff should return 
 the inquisition (?i) ; if the jury find that the defendant has no 
 goods, S:c., the sheriff should not return the inquisition, but at 
 once return that the defendant had no goods, &c. in his baili- 
 wick (o). It seems to be questionable whether or not the return 
 of a I'escue to a writ of capias ullagatum be good {p). If the 
 sheriff return that the defendant has no lay fee, buc is rector of 
 a rectory, the court will award a sequestration to the bishop {q). 
 
 (/t) The inquisition is similar to the 305. See anie, 232, n. (c). 
 
 inquisition on an extent, see more of {m) 2 Rol. Abr. 807. 
 
 that, fost, and forms, Appendix to the (n) See forms of returns, fost, Ap- 
 
 chap. on Extents. pend. chap. 8, s. 2. 
 
 (i) blaster ti. VVhitefield, Hard. 106. (o) See returns and mode of mak- 
 
 (fc) Stringfellow v. Brownesoppe, ing them, ]wst, chap. 11, and forms, 
 
 Dyer, 67; Proctor's case. Dyer, 223 ; Append, thereto. 
 
 Dr. Drury's case, 8 Rep. 284 ; Rex (p) Dalt. 217-, Fifz. Retorne, 110. 
 
 V. Capel, 2 Show. 481. (q) Rex v. Hind, 1 C. & J. 389 ; 
 
 (0 Britten v. Cole, 1 Ld. Raym. Rex v. Armstrong, 2 C. M. & R. 205.
 
 CAPIAS UTLAGATUM. 
 
 233 
 
 In such case the return ought to state tlie name and situation of chap. vin. 
 the benefice (r). If the sheriff is bound to take the jwsse comi- ^^"' "' . 
 talus, he cannot excuse himself, although the defendant or the 
 goods were rescued : as the statute of Westminster 2, by which 
 the sheriff is compelled to raise the posse comitatus, has been held 
 to apply to writs of execution only and not to mesne process (*), 
 perhaps it may be held that rescue would be a good return to 
 capias utlagatum, where the outlawry was on mesne process, but 
 not where the outlawry was after judgment (<)■ When the capias 
 utlagatum is returned, it should be filed, with the inquition an- 
 nexed, with the filazer, as clerk of the exigents and outlawries 
 in the Queen's Bench (u), or with the clerk of the outlawries in 
 the Common Pleas, and should afterwards be carried into the 
 office of the custos brevium (x) ; from whence a transcript is sent 
 to the Exchequer (y). 
 
 The following rules were laid down (z) to be the law respect- Preference 
 
 - , 1 1 • T<- i 1 '" case of se- 
 
 mg the preference between several outlawries: — tirst, where verai ouiuw- 
 there are two outlawries at different times, the first inquisition ""• 
 shall prevail ; secondly, where there are two outlawries on one 
 day, the fii'st inquisition shall be preferred ; thirdly, where there 
 are two inquisitions in one day, the first outlawry shall be pre- 
 ferred ; fourthly, where there are two outlawries on one day, 
 and both inquisitions on one day, there the first lease shall be 
 preferred. 
 
 As to the fees on the execution of process in outlawry, see Fees for exe- 
 
 mi 1 • rr> • -11 1 culing a ca- 
 
 the table of fees, ante, 103. The sherifi is not entitled to pound- pianutiaga- 
 age until the execution of a venditioni exponas {a). The special 
 capias utlagatum in a civil action is considered so far in the na- 
 ture of a private execution, that the landlord is entitled, under Landioid's 
 
 ^ ■ f» 1 1 • » c y claim forrent. 
 
 the Stat. 8 Anne, c. 14, to be satisfied his years rent out of the 
 money in the sheriff's hands (6). 
 
 If the sheriff discharge a defendant arrested by him on a Aciions 
 
 '^ against the 
 
 capias utlagatum issued upon an outlawry upon mesne process, sberiir. 
 without taking an undertaking or bond as prescribed by the 
 statute of William and Mary, he is liable to an action on the 
 
 (r) Rex V. Powell, 1 M. & W. 321. (y) 1 Tidd's Prac. 134, 8th edit. 
 
 (s) See ante, 73, 96, and Cro. Jac. (2) In Rex v. Willes, Parker, 90. 
 
 419; I Rol. Rep. 388, 440; Cro. («) Graham v. Grill, 2 Waule & 
 
 Eliz. 868 ; 2 Lev. 144 ; 3 Lev. 46. Sel. 294. 
 
 (t) But see Bunb. 194. (6) Graves v. d'Acastro, Bunb. 
 
 (u) Reynolds v. Adams, 3 T. R. 194. See also St. John's College, 
 
 578. Oxford, v. Murcott, 7 T. R. 259. 
 
 (x) Id. ibid.
 
 234 OUTLAWRY. 
 
 CHAP. vni. case (c) ; but allowing the defendant to go at large at all would 
 ^"^^^^ "• be an escape if the outlawry were after judgment, for which 
 escape an action would lie (cZ). In either case, it appears that the 
 action may either be by the plaintiff in his own right (e), or qui 
 tarn pro dom'ind regind qiiam pro scipso (./). But it has been de- 
 termined that an action on tlie case will not lie against the she- 
 riff for neglecting to extend or seize the goods and lands of a 
 person outlawed on a capias utlagatum, because it was to the 
 king's loss ; and the court said that the benefit to be derived by 
 the plaintiff from the seizure of the goods, in compelling the 
 defendant to appear, was so very remote as not to be considered 
 as a ground to support an action ; but if it had been shown that 
 the sheriff might have had the body, and had neglected to do it, 
 there might have been more reason to support the action (g-). 
 
 Rfsiimiiun. Where the outlawry is reversed before a sale under a venditione 
 exponas, the defendant shall have a writ of restitution to the she- 
 riff, whereby the defendant shall be restored to his goods or 
 terms seized by the sheriff under the capias utlagatum, and not 
 to the mere value of them as on a fieri facias, for we have seen 
 that without a venditioni exponas the sheriff has no authority to 
 sell goods taken by him on a capias utlagatumiji). 
 
 (c) Bonner v. Stokeley, Cio. Eliz. Hoe's case, 5 Rep. 91 ; 1 Roll. Abr. 
 652; Cooke v. Champness, Fitzg. 778, S. C. ; Eyre v. Woodfine, Cro. 
 265. Eliz. 278. Where a termor outlawed 
 
 (d) Woifu. Davison, Salk. 319. for felony granted his term to the 
 
 (e) Moor v. Sir Geo. Keignalls, plaintiff, and the outlawry was re- 
 Cro. Jac. 620 ; Leighton v. Garnons, versed by writ of error, it was held 
 Cro. Eliz. 706; 1 P. Wms. 693. that the plaintiff might maintain Ires- 
 
 (/ ) Barrett v. Winchcomb, Cro. pass for the profits between the rever- 
 
 Jac. 360; 1 Roll. Rep. 78, S. C. ; sal and the assignment; for the out- 
 
 Parkhurst v. Powell, Cro. Jac. 532. lawry when reversed was as if no out- 
 
 {g) Dawson v. The Sheriffs of Lon- lawry had taken place ; Ognel's case, 
 
 don, 2 Vent. 89. Cro. Eliz. 270. 
 
 (/i) Proctor's case, Dyer, 223 b ;
 
 ( 235 ) 
 
 CHAPTER IX. 
 
 THE sheriff's DUTY IN THE EXECUTION AND RETURN OF THE 
 WRIT OF HABEAS CORPUS. 
 
 In what Cases it lies. — Horv executed. — Return thereto. — Penalty 
 for not obeying the Writ. — Actions for false Return to, Escape, 
 ^c. — Sheriff's Fees on. 
 
 The writ of habeas corpus lies in civil as well as criminal cases, or ihe writ 
 In criminal cases the writ and proceedings depend on the corpus, and 
 statute 31 Car. 2, c. 2 («). The writ of habeas corpus, in civil cas"s h lies, 
 cases, is a judicial writ commanding the sheriff, or other officer 
 to whom it is directed, to have the body of the defendant, 
 together with the day and cause of taking and detaining him, 
 before the court or a judge, on a day certain in term time, or 
 immediate, to answer or satisfy the plaintiff, or generally to do 
 and receive what the court or judge shall consider of him. 
 Hence it is called, according to the subject-matter, a writ of 
 habeas corpus ad respondendum, ad satisfaciendum, or ad facien- 
 dum, subjiciendum, et recipiendum, though the latter is usually 
 called a habeas corpus cum causa {b). There is also another 
 writ of habeas corpus, ad testificandum, to bring up a prisoner 
 who is a material witness to give his testimony. By the 44 
 Geo. 3, c. 102, it is declared to be lawful for any of the judges 
 
 (a) The provisions of this statute has power to issue a habeas corpus ad 
 
 are extended by the statute 56 Geo. sulijiciendum under the seal of and 
 
 •3, c. 100, "for more effectually se- returnable in any other of those courts; 
 
 curing the liberty of the subject." In re Wilson, 14 Law J., Q. B. 105. 
 
 The court will not grant, as a matter If granted by a judge of the Queen's 
 
 of course, a writ nf habeas corpus, but Bench, it must issue from the crown 
 
 only upon special circumstances laid side of the court; Easton's case, 12 
 
 before them, Hobhouse's case, 3 Ad. & E. 645. The superior courts 
 
 Bar. &c Aid. 420 ; Chit. Rep. 207, have also, it seems, a common law 
 
 S. C; and even a judge in vacation, power to discharge a peisou from 
 
 under 31 Car. 2, c. 2, is not bound illegal imprisonment for a criminal 
 
 to grant the writ only upon view of the matter; Ex parte Besset, 6 Q. E. 481. 
 
 warrant of commitment. Id. ibid. (b) Tidd's Prac. 349, 350, 8th 
 
 See Ex parte Boothroyd, 15 M. & W. edit. It is grantable either in vaca- 
 
 1. Since 1 & 2 A'ict. c. 45, s. 1, a tion or in term, 
 judge of any of the superior courts
 
 If'iG HABEAS COUPUS. 
 
 cHAf. IX. Qf t]je courts of King's Bench, Common Pleas, or Exchequer, 
 in England or Ireland, to award a writ of habeas corpus for 
 bringing any prisoner detained in any prison to give evidence 
 before any of the said courts, or any sitting at Nisi Prius, 
 or before any other court of record in the said parts of the 
 united kingdom (c). The writ of habeas corpus cum causd 
 lies for the defendant to remove himself, or for the plaintiff 
 to remove him, from the custody of the sheriff or other officer 
 in whose custody he is, into the custody of the marshal of 
 the Queen's Prison. This writ also lies for the hail of the 
 defendant to bring him up, and surrender him in their dis- 
 charge to the custody of the marshal, and that whether the 
 defendant be in custody in a civil suit or on a criminal ac- 
 count ((/). By the statute 1 & 2 Philip & Mary, c. 13, s. 7, 
 it is required that every writ of habeas corpus shall be signed 
 with the proper hand of the chief justice, or, in his absence, of 
 one of the justices of the court, out of which the writ issued. 
 The sheriff is not obliged to execute a writ of habeas corpus 
 unless it be so signed (e). 
 
 How exe- The Writ of habeas corpus cum causa is returnable immedi- 
 
 ately (/). A warrant is directed and delivered to an officer, 
 generally the gaoler, or one of the turnkeys of the county gaol, 
 directing him to convey the defendant before the judge in Lon- 
 don, according to the exigency of the writ. The officer should 
 bring him to the judge's chambers in due and convenient time(g-) 
 without permitting him to wander under pretence of such writ(/<), 
 
 (c) This application ought to be 1 Marsh. 166; 3 Moore, 259 ; 1 Brod. 
 matle to a judge at chambers; Erown & Bing. 23, S. C; 2 N. R. 245; 
 r. Gisborne,2 Dowl. N,S. 963. See 1 Bing. 221. 
 
 also 43 Geo. 3, c. 140, as to the (e) Rex i;. Roddara, Cowp. 672. 
 
 power of granting a hubeaa coipus to By the stat. 31 Car. 2, c. 2, s. 3, 
 
 convey a prisoner before commission- writs of habeas corpus under that sla- 
 
 ers of bankrupts and courts iiiaitia!. tute are required to be maiked " per 
 
 Arclibold's Bankrupt Laws, 176. stat lUitm tricesima prima Caroli Secundi 
 
 (d) Sharp V. SheriflF, 7 T. R. 226 ; regis." 
 Daniel v. Thompson, 15 East, 78; (/) Bettesworth v. Bell, 3 Burr. 
 Taylor's case, 3 East, 232 ; Brandon 1875. The rule M. 1654, sec. 7, K. 
 V. Davis, 9 East, 154. But they B,, in this respect, was held to have 
 cannot obtain this rule until the bail fallen into desuetude, 
 have justified; id. ibid. This writ does (g) See id. ibid. 
 not lie in C. P. to remove a defendant (h) Reg. Gen. M. 1654, s. 7, K. 
 from criminal custody to be charged B. ; R. M. 1654, s. 10, C. P. 
 in that court with a civil action. See 
 
 culecl
 
 HOW EXECUTED. 
 
 237 
 
 The officer should not deviate from the direct road, nor allow chap, ix. 
 the defendant to go at liberty in conveying him to the judge's 
 chambers, for if he do, it would be an escape (?) ; he must also 
 take force sufficient to prevent the defendant from being res- 
 cued, as a rescue of the defendant would make the sheriff liable 
 to an action for an escape (A:). By the preamble of the 31 Car. 
 2, c. 2, it is stated, " that great delays had been used by 
 sheriffs, &c., to whose custody the king's subjects had been 
 committed for criminal or supposed criminal matters, in making 
 returns of writs of habeas corpus to them directed, by standing 
 out an alias and plur'ies," &c. ; and it is enacted, that whensoever 
 any person shall bring any habeas corpus (l) directed unto any 
 sheriff, &c., for any person in his custody, and the writ shall be 
 served upon such officer, or left at the gaol with the under 
 officer, the said officer shall bring the prisoner up to the court 
 or judge, and certify his cause of detention within three days after 
 such service thereof, (if within the distance of twenty iniles, or if 
 beyond twenty and within one hundred miles within ten days ; 
 and if above one hundred miles within the space of twenty days,) 
 unless the commitment were for treason or felony, upon pay- 
 ment or tender of charges of bringing the prisoner, to be ascer- 
 tained by the judge or court that awarded the same, and in- 
 dorsed on the writ, not exceeding Is. per mile, and on security 
 given by his own bond to pay the charges of carrying him back 
 if remanded, and that he will not make any escape by the way. 
 
 The sheriff should return to the writ of habeas corpus the The sheriflf's 
 cause of the arrest, and of the detention of the defendant (??z). 
 A return, that he the sheriff had no such person in his custody, 
 nor had he on the day of issuing the (pluries) writ, or after- 
 wards, was holden bad, for he might have had him on the day 
 of issuing the first writ of habeas corpus («). A return, that 
 before the delivery of the writ of habeas corjms, he had delivered 
 
 (i) Roll. Abr. Escape (D) 9; on that point. It would seem from 
 
 Cro. Car. 14, 466; Balden r. Temple, the preamble, and the other parts of 
 
 Hob. 202. the act, that it was meant to apply to 
 
 (k) Compton I). Ward, Stra. 429. writs of habeas corpus in criminal 
 
 (/) In Huntley v. Luscomb, 2 matters only. See 2 Bos. & Pul. 
 
 Bos. & Pul. 530, it was m\Ae a ques- 531. 
 
 tion whether this section, and the 5th (m) See several returns, post, Ap- 
 
 section of the act, were confined to pend. c. 9. 
 
 writs of /ia^ens corpus in criminal mat- (ii) Rex v. Sir R. Viner, 2 Lev. 
 
 tcrs, or extended to all writs of ha- 128, 129. 
 
 beas corpus : the court gave no opinion
 
 238 HABEAS CORPUS. 
 
 CHAP. IX. the woman to her husband, and knows not where she is, nor 
 would he produce her, is good (o), A return, tliat the defend- 
 ant was not in the sheriff's custody at the coining of the writ 
 is good (p) ; and for the purpose of fihng the writ, it is good to 
 return that before the coming of the writ, the defendant was dis- 
 charged out of his custody by an order of sessions, without say- 
 ing what sessions, what order, or that he was discharged by due 
 course of law (q). A return, that he the gaoler had not, at the 
 time of receiving the writ, nor had he since had, the body of 
 the within named M. G. detained in his custody, so that he 
 could not have her before, &c., as he is commanded, was held 
 bad, because it did not show that M. G. was not under the 
 gaoler's control (r). A return, that the defendant is sick in 
 prison, or a lunatic, is good ; but if the sheriff go out of office, 
 and a new sheriff be appointed before the return, the return 
 should be made in the name of both, by the old sheriff that he 
 delivered the body to the new sheriff, by the new sheriff lan- 
 guidus (5). The sheriff should state fully and correctly in his 
 return the causes or warrant of commitment, upon which the 
 prisoner is committed or detained, that the court may judge 
 whether the prisoner be lawfully committed or not : and if by 
 the return it appear that he is detained without a sufficient cause, 
 the court will order his discharge (t). A reasonable degree of 
 certainty, however, is all that is required ; the court will not 
 regard the return with the same strictness as a pleading (u) ; 
 and if the sheriffs return be informal, the court will allow it to 
 be amended according to the fact(,r), before or after it is 
 filed (?/), and although the amendment be not assented to on 
 behalf of the prisoner (s). 
 
 (0) Rex V. Wright, Stra. 915. Dowl. 451 ; Reg. v. Dunn, 12 Ad. & 
 (p) Rex V. Bethuen, Andr. 281. E. 599 ; Easton'scase, id. 648 ; In re 
 (9) Id. ibid. Brenan, 16 Law Jou:n, Q. B. 289; 
 (r) Rex V. Winton, 5 T. R. 89. In re Fell, 3 Dowl. & L. 384. See 
 (s) Bac. Abr. Habeas Corpus (B) Rex v. Dagger, 1 Dowl. & Ry. 460; 
 7; Rex v. Clarke, 3 Burr. 1362. 5 B. & Aid. 791, S. C, as to commit- 
 Upon the return of languidus there ment by an ecclesiastical court for con- 
 issues a habeas corpus licet langnidus ; tumacy ; see also Burdett v. Abbott, 5 
 see forms, Tidd's Forms, 145, 5th Dow, 199, 
 
 edit. (u) In re Fell, 3 Dowl. & L. 384. 
 
 (0 See the various returns in Com. (x) Chambers'scase, Cro.Car. 133; 
 
 Dig. tit. Hab. Corp. (E) 2 3 ; and per Hale, C. J. 1 Mod. 103. 
 
 the preceaents in Hobhouse's case, 2 (1/) Watson's case, 9 Ad. & E. 731. 
 
 Chit. Hep. 207 ; Canadian Prisoners" (s) In re Clark, 2 Q. B 619 ; 2 G. 
 
 case, 5 M. & W. 34; Watson's case. & D. 780, S. C; Ex parte Lord, 16 
 
 9 Ad. & E. 731 ; Reg. v. Evans, 8 M. & W. 462.
 
 RETURN, &C. 239 
 
 The sheriffs return is pr'imd facie taken to be true, and need chap, ix. 
 not be supported by affidavit, until impeached. It may be im- How far con- 
 
 . elusive. 
 
 peached, and the truth inquired into, but whether upon affidavit 
 or by pleading does not seem to be fully settled (a). 
 
 If the sheriff do not obey the writ of habeas corpus, he will Proceedings 
 be liable to an attachment in the first instance, without the obejiug 
 
 t • • 02 • wril. 
 
 issuing of an alias. Thus, where the return made is msuthcient, 
 as stating an insufficient reason for not bringing the defendant 
 up upon the habeas corpus, the court will grant an attachment 
 immediately on the return (6). By the stat. 31 Car. 2, c. 2, s. 
 4, if the officer refuse to bring up the body of the prisoner (e), 
 or to make a return ; or on demand by prisoner, or by some 
 person on his behalf, shall refuse, within six hours after demand, 
 to deliver a true copy of the commitment (J), the head gaoler, 
 or other officer in whose custody the prisoner is, shall forfeit to 
 the party grieved 100/. for the first offence, and for the second 
 offence 200/., and be incapable of holding or executing that 
 office. 
 
 For a false return to a writ of habeas corpus, an action on the Action 
 case is the only remedy for the party grieved ; and an infor- sheriff lor 
 mation or indictment at the suit of the king(e). If the officer, e^cl^e, ikc.' 
 in conveying the defendant to the judge's chambers, suffer him to 
 go at large, and have him not at the return of the writ, it is an 
 escape ; and when tl>e sheriff is ordered to bring up the body of 
 a defendant by habeas corpus, as it is his duty to convey him by 
 the shortest and most convenient road to the court at West- 
 minster, if he deviates from such direct road, or lets the defendant 
 go about his affairs, although he has him at the return of the 
 writ, it is an escape (/). And if a habeas corpus issue in one 
 
 (a) See Hawk. P. C. c. 2 ; Ex Stra. 915, 
 
 parte Beecliing, 4 B. & C. 136; (c) See ante, p. 237, n. (i), to 
 
 Watson'scase, 9 Ad. & E. 731 ; Reg. what cases this section extends. 
 
 V. Dunn, 12 Ad. & E. 599; In re (</) In Huntley v. Luseombe, 2 
 
 Wilson, 14 Law J., Q. B., 105. Bos. & Pul. 530, it was held that a 
 
 (b) Rex V. Winton, 5 T. R. 89; demand upon the under turnkey of the 
 Com. Dig. Hab. Corp. (E) 3. And prison for a copy of the warrant of 
 if the officer refuse lo remove the commitment was not a sufficient de- 
 prisoner on account of his fees not mand to make the head gaoler liable 
 being paid, the court will grant an to the penalties of this act. 
 aUachment; T. Jones, 178; Rex v. (e) Bac. Abr. Habeas Corpus (B )8 . 
 Armigers, 1 Keb.272,280. It would It is said lliat no action will lie until 
 appear that before the court will grant the return be filed ; Salk. 352. 
 
 an attachment for nor making a return (/) See Roll. Abr. Escape (D) 9 ; 
 
 lo the /i«6. 007-., there should be a rule Cro. Car. 14, 466; Hard. 476 j I 
 to return the writ; Rex v. Wright, Mod. 116.
 
 240 
 
 HABEAS CORl'US— RETURN. 
 
 term to the sheriff to bring \ip a prisoner in his custody on the 
 ensuing term, if he let him go at large in the meantime it is an 
 escape (g-). But it is laid down by Lord Coke, that if the 
 officer of the sheriff, in taking a prisoner in execution from the 
 county gaol to Westminster on a habeas corpus, lodge him in an 
 inn on the direct road, and the defendant of his own head goes 
 at large, but the sheriff has him at Westminster on the return 
 day of the habeas corpus, this is no escape (//). The sheriff is 
 allowed a reasonable time in wliich he must bring up a prisoner 
 on a habeas corpus ; of the reasonableness thereof the court will 
 judge (?'). It was said by Hale, C. J,, that, "if, on a habeas 
 corpus ad testificandum, the sheriff let the defendant go into the 
 country, it is an escape. Though he be not bound to bring him 
 back tlie direct way, because he may be rescued, yet he ought 
 not to carry him round about a great way for the accommodation 
 of the party; if he doth, it is an escape; but by the evidence 
 you let him go back threescore miles, to which there can be no 
 answer. A habeas corpus returnable immediate is not fixed to 
 an hour, but to a convenient time (^)." The sheriff is to con- 
 vey the defendant sub salvo ct securo conductii, and therefore if 
 the defendant be rescued from the officer whilst in his county, 
 the sheriff is liable to an action for an escape (Z). 
 
 As to the sheriff's fees on a habeas corpus, see the Table of 
 Fees, ante, 103. 
 
 (g) Hard. 476; Roll Abr. Escape (A:1 Mosedell's case, 1 Mod. 116; 
 
 (D)9; 1 Lord Rayra. 241 ; 1 Mod. S. C. 3 Keb. 305; Bull. N. P. 67. 
 
 116. (/) Crompton i;. Ward, Stra. 429. 
 
 (h) In Boylon's case, 3 Rep. 44 ; If the rescue had been in another 
 
 Moore, 257. See ante, 203, 204. county, through which the officer was 
 
 (i) Holdroid v. Liddell, 1 Lord conveying the defendant, would thai 
 
 Ray m. 241 ; Balden i). Temple, Hob. huve altered the case, for there the 
 
 202. sherifl'has no power lo raise the posse ?
 
 ( 241 ) 
 
 CHAPTER X. 
 
 THE sheriff's DUTIES AND LIABILITIES IN THE EXECUTION AND 
 RETURN OF A FIERI FACIAS. 
 
 Sect. I. — How, when, and where Goods may be seized under a 
 Fieri Facias. — Property in Goods, from what time 
 bound. — Poundage. — To what Amount the Levy may 
 be made. — Priority in case of several Executions 
 between several Subjects, and between the Subject and 
 the Crown. 
 
 II. — -What things may and what may not be seized under a 
 Fi. Fa. — Leases for Years; Fixtures, Growing Crops, 
 and ^Agricultural Produce, how to be sold. 
 
 III. — What shall be said to be the Goods of Defendant to he 
 liable to be taken. — Equitable Interest. — Partnership 
 Property. — Goods belonging to the Defendant as 
 Executor, or in Right of his Wife, — Goods sold bona 
 fide, where Defendant has become Bankrupt. 
 
 IV. — Goods seized, when and how to be sold: Venditioni 
 exponas: Distringas nupervicecomitem: when Goods 
 may be released, Defendant giving Security for or 
 paying Debt and Costs. — Sheriff's Property in Goods 
 seized. — Effect of Levy. 
 
 V. — Landlord's Claim for Rent under Stat. 8 Anne, c. 14. 
 
 VI. — Sheriff how protected where there are adverse Claims 
 on Goods seized. — Interpleader. 
 
 VII. — Sheriff's Return; nulla bona; fieri feci; Goods rC' 
 maining in hand for want of Buyers ; Supersedeas; 
 Rescue ; Return in Writs against Executors. 
 
 VIII. — Actions against the Sheriff; for the Money levied ; 
 for a false Return ; for a wrongful Seizure. — Actions 
 by the Sheriff.
 
 cuted. 
 
 242 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. 
 
 ^"^^- '' Section I. 
 
 Fieri Facias ; ivhen, where, and how executed. 
 
 ot the writ. Xhe writ o^ fieri facias is a writ judicial, that lieth for him 
 who hath recovered any debt or damages in the queen's 
 courts, which writ is directed to the sheriff of the county where 
 the venue is laid, and thereby the sheriff is commanded to levy 
 the debt or damages, together with interest from the time when 
 the judgment was entered up, of the goods and chattels of the 
 person against whom the recovery is had, and to have that 
 money and interest, and the writ itself, before the queen at 
 Westminster, or wheresoever, &c., on the return day (if made 
 returnable on a particular day), or immediately after the ex- 
 ecution thereof (a). 
 
 ^.?.^J^^' When the writ is delivered to the sheriff, a warrant is made 
 
 to one or more bailiffs, commanding them to execute the writ(fc) 
 The officer, in making a levy on the goods of the defendant, 
 should make an actual seizure ; but seizing fart of the goods 
 in the name of the whole on the premises is a good seizure of 
 the whole (c). The officer should, from the time of the seizure, 
 either by himself or by some other person, keep possession of 
 the goods, otherwise it might happen that they would be liable 
 to be taken on a second execution (c?). If the outer door of a 
 
 (a) Reg. Gen. Hil. 2 Vict. See county from that in which the venue 
 
 the form, Append, chap. 10, s. 1. is laid, the Court will allow the plain- 
 
 This writ lies within a year and a day tiff to sue out a Ji. fa. to warrant a 
 
 after judgment, but if a party should testatum, by entering the writ, return 
 
 after tlie year and day sue a writ and award of tes^afimi on the roll ; or 
 
 without a sci, fa. vet the sheriff is if the first writ were not a testatum 
 
 bound to execute it. The writ should writ, they will allow that to be 
 
 regularly follow the judgment, and amended ; 3 T. R. 657 ; 5 T. R. 272; 
 
 therefore a special execution is not 6 T. R. 450 ; see also 3 T. R. 388 ; 
 
 warranted by a general judgment, I 4 Dowl. 119; 9 Dowl. 961. Al- 
 
 T. R. 82; 7 T. R. 27 ; so execution though the writ be irregular, the 
 
 against one is not warranted by a sheriff is bound to execute it, and of 
 
 judgment against two, 6 T. R. 525 ; course is justified in executing it. 
 
 see also 7 B. & C. 486 ; 1 Ad. & E. (h) See form Append, chap. 10, s. 
 
 331; 3 Dowl. 464; 5 Dowl. 374. If 1. As to warrants in geneial, see 
 
 a sci. fa. be issued unnecessarily, the ante, 71. 
 
 Ji. fa. must issue on such sci. fa.; 1 (c) Cole v. Davies, 1 Ld. Raym. 
 
 Bing. 133. Regularly a^. /a. should 725. 
 
 issue to the sheriff of the county (d) See Blades v. Arundale, 1 M. 
 
 where the venue is laid, before a «es- & S. 711; Ackland v. Paynter, 8 
 
 to<7(m7z./a. issue to any other county ; Price, 95 ; see also Burr v. Fruthy, 
 
 but if a testatum^ /a. or even a^^./a. 1 Bing. 71, S. C. nomine Burr v. 
 
 issue in the first instance to a different Creethy, 7 Moore, 368.
 
 HOW EXECUTED. 
 
 house in which the defendant's goods are placed be locked, such chap, 
 
 outer door, we have seen, cannot be broken open to seize '- 
 
 them (e). It has been said that this protection only applies to the 
 house of the defendant himself, but that the sheriff or his officers 
 may, after request to open it, break open the outer door of the 
 house of a third person, to which the defendant's goods have 
 been clandestinely removed (y^). But this by no means must 
 be construed to mean that the house of a stranger can be 
 broken open to execute aji.fa. under any circumstances; for 
 the same principle that protects the house of the defendant 
 from a forcible breaking, equally applies to make the house of 
 every man a sanctuary. If however the officer gain admittance 
 at the outer door, he may break it to release himself from the 
 house (g), or he may break open inner doors, or chests, in the 
 house, that are locked, to seize the goods of the defendant, 
 without any request to open them(/<). So he may break open 
 the outer door of a barn detached from the dwelling-house, 
 even without first demanding that such door should be opened (i). 
 However, although the sheriff should break open an outer door, 
 or otherwise become a trespasser in executing a Jieri facias, the 
 execution is good notwithstanding, and the plaintiff is entitled 
 to the fruits of such levy (/c), the remedy for the defendant 
 being by action (/). It seems that goods may be taken through 
 the window of a house if open (m). 
 
 The officer may seize the goods of the defendant at any time At what 
 before or on the return day of the writ, if made returnable on a 
 particular day, or if, as is now the usual form, it be made re- 
 turnable immediately on the execution thereof (in which case 
 it continues in force until it is executed (n)), he may execute it 
 within a reasonable or convenient time ; and he is bound to sell 
 the goods within a convenient time, without a writ of venditioni 
 exponas or distringas (^o) . Aji.fa. cannot be executed on a 
 
 (e) Ante, 75; Semayne's case, 5 Pal. 223; Lee v. Gansel, Cowp. 1. 
 
 Rep. 92. Nor can a window be (i) Penton v. Brown, 1 Sid. 186; 
 
 broken open in such case; Cooke's 1 Keb. 698, S. C. 
 
 case, W. Jones, 429. (k) Brownl. 50; 5 Rep. 92. 
 
 (/) Semayne's case, 5 Rep, 93. (I) Id. ibid. 
 
 (g) White j;. Wiltshire, Cro. Jac. (m) 1 Roll Abr. 671, pi. 7. 
 
 555 ; 2 Roll. Rep. 137, S. C. ; Palm. (ii) Simpson v. Heath, 5 M. & W. 
 
 52 ; Pugh L'. Grirtiih, 7 Ad. & E. 827; 31 ; Greenshields v. Harris, 9 M. & 
 
 3 N. & P. 189. S. C. W. 774. 
 
 (h) Hutchinson v. Birch, 4 Taunt. (o) Clerk v. Withers, 6 Mod. 297 ; 
 
 619; Ratcliff v. Burton, 3 Bos. & Wilbraham v. Snow, 2 Saund. 47 e; 
 
 r2 
 
 243 
 
 time.
 
 244 
 
 SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. Sunday (p). The officer may, after the death of the defendant, 
 °—^ on nji.fa. against him, seize his goods in the hands of his ex- 
 ecutor or administrator, provided the writ bears teste before his 
 death, although not delivered to the sheriff till after (^r). So, 
 after the death of the plaintiff, the sheriff may execute aji.fa. 
 tested in his lifetime (r), but he should not pay over the pro- 
 ceeds until he is satisfied respecting the person who is personal 
 representative : if there be no executor or administrator, the 
 money should be brought into court, and there deposited until 
 the representative of the plaintiff appear and claim it (5). If, 
 while the defendant is in execution, the plaintiff dies, a rule 
 may be made absolute in the first instance for the defendant's 
 discharge, on the production of an affidavit by the next of kin 
 that it is not his intention to prove any will or to take out 
 letters of administration (t). 
 
 The sheriff may enter the house of the defendant when the 
 outer door is open to seize the goods of the defendant (m) ; and 
 if the defendant has goods in the house of a stranger, the sheriff 
 may enter it to execute 2l fieri facias (^x). But the sheriff is not 
 justified in entering the house of a stranger on a fieri facias, 
 unless the defendant's goods are actually in the house, for it is 
 not a sufficient justification that he entered the house of the 
 stranger on suspicion that the goods of the defendant were in 
 the house (^). But the house of the defendant himself the 
 sheriff is justified in entering merely on suspicion of his goods 
 being there ; so, on a fieri facias against the goods of an in- 
 testate, in the hands of an administratrix and her husband, the 
 sheriff may legally enter the house of the husband to search for 
 the goods of the intestate, though none be found therein (2). 
 
 Brown «. Jarvis, 1 Rl. & W. 714; 5 290, S.C; 1 1 Mod 35; Ld. Raym. 
 
 Dowl. 281, S. C ; Jacobs v. Hum- 1072. 
 
 phrey, 2C.&C M. 413 ; Bales v. Wing- (s) Thoroughgood'c case, Noy, 73 ; 
 
 field, 2N. &M. 831. S.C; Masoa Dyer, 76 b,; Ld. Raym. 1073 ; Clerk 
 
 V. Paynter, 6 G. & D. 38. v. Withers, 6 Mod. 297 ; Ellis v. 
 
 (p) Ante, 79. Griffith, 16 M. & \V. 106. 
 
 (7) Dalt. 148; Bragner v. Lang- (t) Gore v. Wright, 1 Dowl. N.S. 
 
 mead. 7T.R. 20; W^aghorne u Lang- 864. 
 
 mead, 1 Bos. & Pul. 571. But a_^'./a. (h) Semayne's case, 5 Rep. 92. 
 
 cannot be issued or executed on his (x) Ibid. 
 
 goods, it tested after his death ; Heapy (y) Johnson 1;. Leigh, 1 Marsh. 
 
 V. Parris, 6 T. R. 368; see also 7 565; Morrish v. Murrey, 13 M. & 
 
 East, 297. W^ 52; Com. Dig. Execution (C 5). 
 
 ()■) Cleve V. Veer, Cro. Car. 459; (s) Cooke v. Birt, 5 Taunt. 765 ; 
 
 Clerk V. Withers, Salk. 322 ; 6 Mod. 1 Marsh. 333, S. C.
 
 HOW EXECUTED. PRIVILEGE. 245 
 
 The sheriff cannot stay on the premises for more than a reason- chap. x. 
 
 able time to remove the goods, without the consent of the !! ' 
 
 defendant (a). 
 
 There are few privileges which extend to protect goods from Piiviiege. 
 being taken on a Ji. fa. A royal palace, wherein either her 
 majesty, her family, or her servants reside, is such a privileged 
 place, that the sheriff or his officer cannot lawfully execute a^ea 
 facias in such palace (&;. There are no personal privileges that 
 protect the goods from being taken in execution, excepting that 
 the goods of ambassadors and of their servants are privileged; 
 for by the statute of 7 Anne, c. 12, s. 2, all writs whereby the 
 goods or chattels of any ambassador or other public minister or 
 his servants may be distrained, seized or detached, are declared 
 to be void (c). In a late case it was determined that the goods 
 of the servant of an ambassador, not residing in the ambas- 
 sador's house, but renting and living in another house, part of 
 which he let in lodgings, were liable to a distress for poor's 
 rates, such goods not being necessary for the discharge of his 
 duty to the ambassador (c?). The goods of a certificated bank- 
 rupt, and of a person discharged under the Insolvent Debtors 
 Act, are protected from being taken on afi.fa.{e) upon a judg- 
 ment for a debt from which the defendant was discharged by 
 his certificate, or by the order of the Insolvent Debtors Court. 
 But \{ af.fa. be delivered to the sheriff to execute against any 
 such person, the sheriff or his officer is not bound to take notice 
 of such privilege, but may leave the party to apply to the court 
 to be relieved (y). No bona aut catalla cccles'iastica can be 
 seized under a feri facias {g). 
 
 If the sheriff levy the debt and pay the money over to the Poundage. 
 plaintiff, he is entitled to his poundage, although the execution 
 be set aside (A). So also a sheriff, who has seized the defendant's 
 goods, is entitled to poundage, if the parties compromise before 
 
 (a) Ante, 121. s. 95, as to insolvent debtors; and 
 
 (6) Winter r. Miles, 10 East, 578 ; see Raynes v. Jones, 9 M. & VV. 104. 
 
 Eiderton's case, 2 Ld. Raym. 978 ; (/) Lister v. Mundell, 1 Bos. & 
 
 6 Mod. 73, S. C; 3 Salk. 91, 284. Pul. 427. 
 
 (c) For the decisions on this sta- (g) Dalt. 219; 2 Inst. 472; Bac. 
 lute see ante. Abr. Execution ; 2 Mod. 256. 
 
 (d) Novello V. Toogood, 1 Barn & (h) Rawstoine v. Wilkinson, 4 M. 
 Cress. 554 ; 2 Dowl. & Ry. 833, S.C. & Sei. 256 ; Salk. 332. See Bullen 
 
 (e) See 5 & 6 Vict. c. 1 10, s. 37, v. Ansley, 6 Esp. 111. 
 as to bankrupts ; 1 & 2 Vict. c. 110,
 
 246 sheriff's duties in the execution of a FIEPa FACIAS. 
 
 CHAP. X. the sale(/"). The sheriff is not entitled to poundage upon a 
 ^'^^'^•'' sum of money paid over to a landlord for rent on an execution 
 under the 8 Ann. c. 14, s. 1 (k). 
 Poundage Besides his poundage, the sheriff is also empowered, by the 
 
 and fees may ,^ j ^ ,. i i • • 
 
 be levied. stat. 43 Gco. 3, c. 46, s. 5, to levy, under an execution agamst 
 the goods of a defendant (^l), the fees and expenses of the exe- 
 cution, over and above the sum recovered by the judgment. 
 This statute, as we have seen, does not extend to executions 
 against a plaintiff for costs, nor to crown process (ra). The 
 fees and expenses to be taken by the sheriff are now regulated 
 by the stat. 1 Vict, c. 55, and the table of fees framed by the 
 judges pursuant thereto (w). What costs and expenses fall 
 within the terms of the 43 Geo. 3, c. 46, s. 5, and of the 1 Vict. 
 c. 55, has been already fully considered (o). 
 Property of At common law, the goods of the party against whom a writ 
 defend" 111° o^ fieri fitcias issued were hound from the teste of the writ; by 
 xhefi^'fa^^^ which is meant that the writ bound the property as against the 
 party himself, and all claiming by assignment from or by repre- 
 sentation under him(p); so that a sale by the defendant of his 
 goods bond fide, excepting in market overt, did not protect them 
 from s. fieri facias tested before, although not issued or delivered 
 to the sheriff till after, the sale(^); although goods seized on 
 2i fieri facias were not subject to a second fieri facias subse- 
 quently issued but tested before (r). But by the Statute of 
 Frauds, 29 Car. 2, c. 3, s. 16, it is enacted, " That no writ of 
 fieri facias, or other writ of execution, shall bind the property 
 of the goods of the party, against whom such writ of execution 
 is sued forth, but from the time that such writ shall be delivered 
 to the sheriff, under-sheriff or coroners, to be executed ; and 
 for the better manifestation of the said time, the sheriff, &c., 
 their deputies or agents, shall upon receipt of any such writ 
 (without fee for doing the same) indorse upon the back thereof 
 the day of the month and year whereon he or they received the 
 same." The property in the goods is not altered by the delivery 
 
 (0 Alchln V. Wells, 5 T.R. 470. (o) Ante, 110, 113. 
 
 (k) Gore V. Gofton, Stia. 643. (p) Per Lord Ellenborough, C. J., 
 
 (/) Ante, 113. See Rumsey v. 4 East, 538. 
 Tuffnell, 2 Bing. 255. (./) Anon. Cm. Eliz. 174; Bailey 
 
 (m) Ante, 113; 7 Taunt. 179; 2 v. Banning, 1 Sid. 271; Cro. Jac. 
 
 Chit. Rep. 353. 451. 
 
 (n) Ante, 103. (r) Payne v. Drewe, 4 East, 523.
 
 PRIORITY OF EXECUTIONS. 247 
 
 of the writ to the sheriff, but remains in the defendant until chap. x. 
 execution executed ; but if the defendant make an assignment ^''"'^•'' . 
 of his goods after the delivery of a fieri facias to the sheriff, 
 excepting by sale in market overt, the sheriff may take them in 
 execution (s). This statute was passed solely to protect pur- 
 chasers, and the goods are bound as against the defendant and 
 his representatives as they were at the common law, and there- 
 fore goods of the testator, in the hands of an executor, may 
 be taken on a.Ji.fa. against his testator bearing teste before his 
 death {t). 
 
 As between two different plaintiffs, if two writs oi fieri facias Priority in 
 
 *■ . case of seve- 
 
 are delivered to the sheriff on the same or different days, the rai executions 
 
 1-1 r- 1 !• 1 by the subject, 
 
 sheriff ought first to execute that which was nrst delivered to 
 him (m) ; unless the first writ was fraudulent, and then he should 
 execute the other (a;). And if the bailiff, after making a seizure, 
 does not keep possession, but leaves the defendant in possession 
 of the goods, this is strong evidence to show that the first ex- 
 ecution was fraudulent (?/). But if the sheriff levy goods in 
 execution by virtue of the writ last delivered, and make sale 
 of them, the property of the goods is bound by the sale, and 
 the party cannot seize them by virtue of the writ first delivered ; 
 but he may have his remedy against the sheriff (z). But if the 
 sheriff merely seize but has not sold under the writ last deli- 
 vered, he may apply that levy to the first writ, although no 
 warrant issued thereon (a). Therefore, where two writs oi fieri 
 facias were in the sheriff's hands at the same time against the 
 same defendant at the suit of different plaintiffs, upon the writ 
 first delivered the officer entered, and whilst he was in posses- 
 sion, the officer under the second writ entered, and remained in 
 possession until the goods were sold, which were not enough 
 to satisfy the first writ ; before the sale, the defendant gave 
 
 (s) Lowthal D. Tomkins, 2 Eq. Cas. Toussaint ?). Hartop, Holt's N. P. C. 
 
 Abr. 381. 335; 7 Moore, 368; 1 Bing. 71, 
 
 (t) Bragner v. Langmead, 7 T. R. S. C. 
 20 ; Waghorne t;. Langmead, 1 Bos. (s) Smallcomb v. Buckingham, 1 
 
 &Pul.571. Ld.Raym,251; 1 Salk. 320, S. C. ; 
 
 (w) liulchinson v. Johnson, 1 T. Caith.419; Com. Rep. 35. See also 
 
 R. 729; Sawle -;. Paynter, 1 Dowl. 1 T. R. 731, n.; Payne v. Diewe, 4 
 
 & Ry. 307. East, 523. 
 
 (i) Bailey y. Windham, 1 Wils. 44. (a) Jones i;. Atherton, 7 Taunt. 
 
 (j/) Jd.i/)id.; Kemplandi). Macau- 56; 2 Marsh. 375, S. C. ; Hulchia- 
 
 ley, Peake's N. P. C. 66. See also son i'. Johnston, 1 T.R. 729. 
 Blades t). Arundale, 1 M.&Sel. 711;
 
 248 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. notice to the sheriff that he would move to set aside the first 
 
 - fi. fa., and the judgment whereon it was founded, and upon 
 
 that writ being set aside by rule of court, the sheriff paid the 
 money over to the defendant, according to the rule: it was 
 held that, on the first writ being set aside, the proceeds of the 
 sale were liable to satisfy the second writ (6), and that, under 
 those circumstances, a return of nulla bona to the second writ 
 was a false return. So, where the first writ was founded upon 
 a judgment on a warrant of attorney, but the second was in a 
 bond jide adverse action, and before sale a fiat in bankruptcy 
 issued against the debtor, whereby, under the 6 Geo. 4, c. 16, 
 s. 108, the first writ became void, it was held that the other 
 became in effect the first writ ; that the creditor who issued it 
 was entitled to have his execution satisfied out of the proceeds, 
 and that the assignees in bankruptcy could not first claim any 
 part of them under the above section for rateable distribution 
 among the creditors (c). Where the first writ is delivered with 
 directions not to execute it till a future day, the sheriff is 
 justified in levying under a second delivered before that day(c?). 
 Where an attorney, who acted for seven different plaintiffs in 
 different actions, delivered seven writs o^ Ji.fa. to the sheriff, 
 in one bundle, at the same time, it was held that the sheriff 
 could not call, by rule of court, upon the plaintiffs or their 
 attorney, to say which writs were to have priority; but it seems 
 that a return to the effect that he had received all the writs at 
 the same time, and had levied under all, would under such cir- 
 cumstances be a good return (e). 
 or by the As against the crown, as the king is not named in the Statute 
 
 of Frauds, an extent binds the goods from the teste of that writ. 
 And if the extent be tested before or on the day of the delivery 
 to the sheriff of a writ o{ fieri facias, the extent shall have pri- 
 ority over the subject's execution, although it be not delivered 
 to the sheriff until after ihe fieri facias, provided it be delivered 
 before the goods are actually sold under the fieri facias ; if the 
 
 (h) Saunders v. Bridges, 3 Bar. & 491 ; see also Goldschmidt v. Hamlet, 
 
 Aid, 95. The court would have 6 Man. & G. 187 ; 6 ScoU, N. R. 962. 
 
 allowed ihe sheriff to have paid the (d) Kemplandu.iMacauley, Peake's 
 
 money into court, or to have retained N. F. C. 66. See Bradley i;. Wynd- 
 
 it until indemnified, if he had made ham, 1 Wils. 44. 
 
 application to the court for that pur- (e) Ashworth v. Ear! of Uxbridge, 
 
 pose. 2 Dowl. N. S. 337. See Chambers v. 
 
 (c) Graham v. Witherby, 7 Q. B. Coleman, 9 Dowl. 588. 
 
 crowo.
 
 PRIORITY OF EXECUTIONS. 
 
 249 
 
 goods are sold under the Ji. fa. it is otherwise, for by the sale chap. x. 
 
 the property is altered (/). The Court of Exchequer (g-) decided LL 
 
 in one case, contrary to decisions of the Queen's Bench (Ji) and 
 Common Pleas (i), that \^ a. fieri facias be delivered to the 
 sheriff, and, after a seizure of goods, but before sale, an extent 
 be delivered to the sheriff, tested after the delivery of the^cn 
 facias, the extent shall be preferred ; and this is now settled 
 law (J). And, in the Queen's Bench, process sued out by the 
 crown against a defendant to recover penalties, upon which 
 judgment for the crown is afterwards obtained, entitles the 
 queen's execution to priority, within the statute QS Hen. 8, c. 
 S9, s. 74, before the execution of a subject, issued on a judg- 
 ment recovered against the same defendant prior to the queen's 
 judgment, but subsequent to the commencement of the queen's 
 process, the queen's writ having been delivered to the sheriff 
 before the actual sale of the defendant's goods under the plain- 
 tiff's execution (k). 
 
 Section II. 
 Fieri Facias — What Things may he seized under. 
 
 The sheriff is commanded by the writ to cause the debt to be What things 
 levied on the goods and chattels of the defendant. Under this Ulidera/.'/a. 
 writ the wearing apparel of the defendant is not liable to be 
 taken, although " if the defendant have two gowns, the sheriff 
 may sell one {I)." But wearing apparel on a man's person, even 
 if it does not extend to goods in the actual possession of the 
 person, cannot be taken under di fi. fa., or under an extent (m); 
 and before the statute 1 & 2 Vict. c. 110, nothing could be 
 taken in execution which could not be sold (ra). Thus, deeds, 
 writings, money, or bank notes, could not be taken in execution 
 
 (/) Swain v. Morland, 1 Brod. & Rep. 1251. 
 Bing. 370; 3 Moore, 740, S. C. {j) Giles v. Grover, 1 Clark & 
 
 {g) Rex V. Wells and Alnutt. 16 Fin. 72 ; ■post, chap. 15, s. 2. 
 East, 278, n. ; Rex v. Sloper, 6 Price, (k) butler v. Butler, I East, 338 ; 
 
 114, 144; 8 Trice, 293. See also 1 8 Price, 364. 
 Saund. 219 f, n.(i); 1 East, 338. (/) Comb. 291, 
 
 See post, chap. 15, s. 2. (m) Sunbolf r. Alford, 3 M. & W. 
 
 {h) Rorke V. Dayrell, 4 T. R. 402. 264, per Parke, B, 
 
 (?) Uppom V. Sumner, 2 Blac. (n) Com. Dig. Execution (C 4).
 
 250 SHERirp's DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 SECT. II. 
 
 CHAP. X. on 2l fieri facias (o) ; and the courts have refused to allow the de- 
 fendant's money in the sheriff's hands, whether the produce of an 
 execution at the suit of the defendant himself (p), or even the 
 surplus of a former execution at the suit of the same plaintiff 
 against the same defendant (y), to be stayed in the hands of the 
 sheriff to satisfy the present execution. 
 
 By the 12th section of the 1 & 2 Vict. c. 110, however, it is 
 enacted, " that by virtue of any writ of fieri facias to be sued 
 out of any superior or inferior court after the time appointed 
 for the commencement of this act, or any precept in pursuance 
 thereof, the sheriff or other officer having the execution thereof 
 may and shall seize and take any money or bank notes, (whether 
 of the Governor and Company of the Bank of England, or of 
 any other bank or bankers,) and any checks, bills of exchange, 
 promissory notes, bonds, specialties, or other securities for mo- 
 ney, belonging to the person against whose effects such writ of 
 fieri facias shall be sued out ; and may and shall pay or deliver 
 to the party suing out such execution any money or bank notes 
 which shall be so seized, or a sufficient part thereof; and may 
 and shall hold any such checks, bills of exchange, promissory 
 notes, bonds, specialties, or other securities for money as a secu- 
 rity or securities for the amount by such writ oi fieri facias 
 directed to be levied, or so much thereof as shall not have been 
 otherwise levied and raised ; and may sue in the name of such 
 sheriff or other officer for the recovery of the sum or sums 
 secured thereby, if and when the time of payment thereof shall 
 have arrived ; and that the payment to such sheriff or other 
 officer by the party liable on any such check, bill of exchange, 
 promissory note, bond, specialty, or other security, with or 
 without suit, or the recovering and levying execution against 
 the party so liable, shall discharge him to the extent of such 
 payment, or of such recovery and levy in execution, as the case 
 may be, from his liability on any such check, bill of exchange, 
 promissory note, bond, specialty, or other security ; and such 
 
 (o) Francis t;. Nash, Rep. Temp. passed by consent. 
 
 Hard. 53; Staple v. Bird, Barnes, (9) Fieldhouse v. Croft, 4 East, 
 
 214. 510. If the second writ had beea 
 
 (p) Knight v. Criddle, 9 East, 48; in the office before the goods were 
 
 Padfield v. Brine, 3 Brod. & Bing. sold, the surplus would have been 
 
 294; Wilkins v. Ball, 2 N. R. 376. avadable to the second execution; 3 
 
 The case in 1 Doug. 231, contra, Bar. & Aid. 95.
 
 WHAT THINGS MAY BE SEIZED. 251 
 
 SECT. 
 
 sheriff or other officer may and shall pay over to the party suing chap. 
 out such writ the money so to be recovered, or such part thereof 
 as shall be sufficient to discharge the amount by such writ di- 
 rected to be levied ; and if, after satisfaction of the amount so 
 to be levied, together with sheriff's poundage and expenses, any 
 surplus shall remain in the hands of such sheriff or other officer, 
 the same shall be paid to the party against whom such writ shall 
 be so issued ; provided that no such sheriff or other officer shall 
 be bound to sue any party liable upon any such check, bill of ex- 
 change, promissory note, bond, specialty, or other security, un- 
 less the party suing out such execution shall enter into a bond, 
 with two sufficient sureties, for indemnifying him from all costs 
 and expenses to be incurred in the prosecution of such action, or 
 to which he may become liable in consequence thereof, the ex- 
 pense of such bond to be deducted out of any money to be reco- 
 vered in such action." 
 
 Under this section it has been decided that money received 
 by the sheriff in redemption of goods pledged with the defend- 
 ant, who was a pawnbroker, is seizable under a Ji. fa. (r). A 
 mere debt cannot be seized ; and therefore, under process of 
 execution, the sheriff cannot seize a debt due from a former sheriff, 
 as the surplus of a former execution, to the defendant (s) ; nor 
 does the section apply to money in the hands of a third party as 
 trustee for the defendant, but only to money in the hands of the 
 debtor himself (i); therefore, money deposited in court in one 
 action, pursuant to 43 Geo. 3, c. 46, s. 2, and 7 & 8 Geo. 4, 
 c. 71, s. 2, cannot be paid out to an execution creditor in another 
 action (m). So where the sheriff has seized and sold goods under 
 a ji. fa., and holds in his hands the produce of the sale, such 
 produce is not liable to seizure under a fi. fa. against the exe- 
 cution creditor, at whose suit the levy was made, unless the 
 sheriff has appropriated and set apart some specific money, as 
 that which is to be paid over under the first/. /a. (a:). A lease 
 for years, or an annuity for years {y), being merely chattel in- 
 
 (r) Squire v. Huetson, 1 Q. B. (x) Wood d. Wood, 4 Q. B. 397 ; 
 
 308. see also Masters v. Stanley, 8 Dowl. 
 
 (s) HaiTison «. Paynter, 6 M. & 169. 
 
 W. 387 ; 8 Dowl. 349, S. C. (v) York v. Twine, Cro. Jac. 78. 
 
 (0 Robinsoni;. Peace, 7 Dowl.93. Seel vide Doct. & Stud. 53; Dalton, 
 
 (?t) France ?). Campbell, and Win- 127. 
 ter D, Campbell, 9 Dowl. 914.
 
 252 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. terests, like all other chattels, may be taken and sold under a 
 ^'^"' "• writ of fieri facias ; and although the sheriff cannot ascertain the 
 length of time that the term has to run, yet he should levy and 
 sell the term notwithstanding; for in the assignment by the 
 sheriff of a term of years, of which the defendant is possessed, 
 it is sufficient to recite that the defendant is possessed of a term 
 of years yet to come and unexpired ; for it cannot be intended 
 that the sheriff should know the exact commencement and end 
 of the terra (s). And it is more prudent for the sheriff so to 
 assign it; for if, instead of stating the defendant's interest thus 
 generally, he attempt to state it particularly, and fail, the vendee 
 will not have a good title (a). But the sheriff cannot sell under 
 a fieri facias any estate of freehold, as an estate for life, or an 
 estate jmr aider vie (/>) ; but it seems that an outstanding term, 
 vested in a trustee upon trust to attend the inheritance, may be 
 seized under an execution against the cestui que trust, the owner 
 of the inheritance (e). The sheriff can only give the vendee of 
 a term of years under a fi. fa. the right of possession ; he has 
 no power to put the defendant forcibly out of possession {d) ; 
 the vendee must bring his ejectment to get into possession (e): 
 if, indeed, he can peaceably obtain possession, he may enter and 
 possess himself of the premises without bringing ejectment (_/). 
 Until actual execution of an assignment by the sheriff, the 
 vendee has no legal title, but the legal interest remains in the 
 debtor (g-), even as against the execution creditor. 
 Fixtures. Fixtures annexed to the freehold cannot be taken under a fi. 
 
 fa., for they do not flill within the definition of goods and chat- 
 tels. Therefore, on a fi. fa. against the owner of a house, fix- 
 tures put up therein by him, which would go to the heir and not 
 
 (s) Palmer's case, 4 Rep 74 ; do. (c) Doe d. Phillips v. Evans, 1 C. 
 
 Eliz. 584, S, C. ; Taylor v. Cole. 3 T. K. & M. 450. 
 
 292. See also Eaton v. Souihby, (d) Rex v. Deane, 2 Show. 85. 
 
 Willes, 131. If the lease be seized (e) Id. ibid.; 3 T. R. 295. 
 
 before the writ is returnable, the as- (j^) Taylor v. Cole, 3 T. R. 295. 
 
 signmenl by him after the return day See also Taunton v. Costar, 7 T. R. 
 
 is valid, and conveys a good title to 431 ; Turner j;. Meymott, 1 Bing. 158 j 
 
 the purchaser; Doei). Donston, IB. 7 Moore, 574, S. C. See also Doe 
 
 & A. 230. d. Stevens v. Lord, 6 Dowl. 256. 
 
 (a) Palmer's case, 4 Rep. 74; (g) Due J. Hughes y. Jones, 9 M. 
 
 Cro. Eiiz. 584, S. C. 6c W. 372 ; 1 Dowl. N. S. 3o2, S. C. ; 
 
 (6) Harbert's case, 3 Rep. 13; Playfair v. Musgrove, 14 M. & VV. 
 
 Johnson v. Streete, Comb. 291. 239.
 
 WHAT THINGS MAY BE SEIZED. 
 
 253 
 
 to the executor, cannot be seized and sold by the sheriff(/<) ; chap. x. 
 
 but fixtures which may be removed by the tenant during his _!^ '. L_ 
 
 term may be seized and sold on a fi- fa- against the tenant (/'). 
 It often becomes a question what fixtures are and what are not 
 removable by the tenant ; it has been determined that buildings 
 of brick and mortar, erected on land for the purposes of 
 agriculture by the tenant during the term, are not removable 
 by him {h), although if erected by the tenant for the purposes 
 of trade it would be otherwise (/). So a conservatory erected 
 on a brick foundation (wj), or the machinery of a mill {n), or 
 ranges, ovens, or pots(o), erected and fixed by the tenant during 
 the term, have been held not to be removable by him. But 
 parts of a machine, which are usually valued between out-going 
 and in-coming tenants, are removable by the tenant (p). Fix- 
 tures erected by the tenant during the terra for the purposes of 
 trade, if he covenant to yield up all erections made during the 
 term, are not removable by him [q). Even if the tenant sever 
 from the freehold fixtures which he cannot lawfully remove, the 
 sheriflT cannot take them on a f. fa. against the tenant, for on 
 being severed they become the property of the landlord (r). 
 
 Corn and other crops, growing or sown on the ground, which Growing 
 go to the executor, may be sold under a fieri facias (^s). Thus, agiicnhura! 
 
 fi • ^ / ,\ 111 produce, how 
 
 growmg potatoes may be seized (i); but clover, rye to be sold. 
 
 grass, or artificial grass, growing under corn, cannot be seized 
 
 on a fi. fa. (m) ; nor can a growing crop of meadow grass {x) ; 
 
 {h) Wynne v. Ingelby, 1 Dowl. & Ry. 247 ; 5 B. & Aid. 625, S. C. 
 
 Ry. 247 ; 5 B. & Aid. 625, S. C. (p) Davis v. Jones, 2 Bar. & Aid. 
 
 (0 Poole's case, Salk. 368 ; Min- 165. 
 
 shall V. Lloyd, 2 M. & VV. 459, fer (7) Thresher v. The East London 
 
 Parke, B. Water Works Company, 4 Dowl. & 
 
 (k) Elwes V. Maw, 3 East. 28. Ry. 62; 2 Bar. & Cres. 608, S. C. ; 
 
 See also Steward v. Lombe, 4 Moore, Naylor v. Collinge, 1 Taunt. 19. See 
 
 281; 1 Brod. & Bing. 506, S. C. also 7 Taunt. 188; 2 Marsh. 495, 
 
 (/) Penton i.. Robart, 2 East. 87 ; S. C; 4 Bar. & Aid. 206. 
 
 Elwes V. Maw, 3 East, 44. And as (r) Farrant v, Thompson, 2 Dowl. 
 
 to what fixtures pass to the assignees & Ry. 1 ; 5 B. & Aid. 826, S. C. 
 
 of a bankrupt tenant, see Horn v. (s) Dalton, 556. 
 
 Baker, 9 East, 215; Storer?;. Hunter, (<) Evans v. Roberts, 5 B. & C. 
 
 5 Dowl. & Ry. 240 ; 3 B. fit C. 368, 832, per Bayley, J. See also as to 
 S. C. what are emblements, Graves v. Weld, 
 
 (m) Buckland v. Bulterfield, 4 5 B. & Ado). 105; 1 Williams on 
 
 Moore, 440; 2Brod.& Bing.54, S. C. Executors, 555, et seg. (3d edit.) 
 («) Farrant v. Thompson, 2 Dowl. (u) 56 Geo. 3, c. 50, s. 7. 
 
 6 Ry. 1 ; 5 B. & Aid. 826, S. C. (1) See Evans v. Roberts, 5 B. & 
 (0; Wynne v. Ingleby, 1 Dowl. ex. C. 832, yer Bayley, J.
 
 254 sheriff's duties in the execution of a fieri facias. 
 
 rriAP. X. nor can growing fruit (?/). Where a ^en\/acms was delivered 
 ^'^^^' "• to the sheriff against the tenant of certain land whereon certain 
 crops were standing, and before the return of that writ a writ 
 of habere facias possessionem of the same land was delivered to 
 the sheriff, issued on an ejectment on a demise laid anterior to 
 the teste of the ^my«cm5, it was held that those crops were not 
 liable to be taken on xhe fieri facias, inasmuch as the tenant was 
 a trespasser from the day laid in the declaration in ejectment (z). 
 Where corn sold under a fi. fa. is not ripe, the vendee has a 
 reasonable time after it is ripe to cut it and carry it away ; and 
 whilst remaining on the land it is not liable to a distress for rent, 
 for during all that time it is considered in custodid legis, the 
 goods in the vendee's possession being protected, in order to 
 render the execution available, although the sheriff's duty ended 
 on the execution of the bill of sale (a). 
 
 Formerly, the duty of the sheriff in the sale and disposition of 
 corn or other crops or manure taken on a farm, under a fieri 
 facias against a tenant, was the same as in the sale of any other 
 goods and chattels ; but now, where there is any covenant or 
 contract in writing between landlord and tenant, stipulating that 
 such crops, &c. shall be spent on the farm, (which act does not 
 relate to produce which the tenant may consistently with his 
 lease remove from the farm), the sale of such goods is regulated 
 by the statute 56 Geo. 3, c. 50, the first section of which pro- 
 vides that where there is a covenant or contract in writing (and 
 whereof the sherifl has notice) for spending agricultural produce 
 upon the farm, the sheriff shall not remove the crops, &c., from 
 the farm for the purpose of sale. The tenant is required to give 
 notice to the sheriff of such covenants or written agreements, 
 and the sheriff is required to give notice by the post to the land- 
 lord or his agent of his possession of such agricultural produce ; 
 and in case of the silence of the landlord or agent, the sheriff 
 must delay the sale till the latest period he can do (6). And 
 where there is a covenant or written contract between landlord 
 and tenant, the sheriff is to assign or make an agreement with 
 his vendee that he is to consume the produce according to the 
 
 (y) Rodwell v. Phillips, 9 M. & Bing. 362 ; 5 Moore, 79, S. C. ; 
 
 W. 505, per Lord Abinger, C. B. Wright v. Dewes, 1 Ad. & Ell. 641 ; 
 
 (z) Hodgson V. Gascoigne, 5 Bar. 3 N. & M. 790, S. C. 
 & Aid. 88. (h) Sect. 2. 
 
 (a) Peacock i>. Purvis, 2 Brod. &
 
 WHAT THINGS MAY BE SEIZED. 255 
 
 terms of such covenant or written agreement. If there be no chap. x. 
 such covenant or agreement, then the vendee is to stipulate to ^^^^' "' 
 spend the produce of the farm according to the custom of the 
 country, and the vendee is allowed the use of the barns, &c. on 
 the farm (c) for that purpose without the sheriff or vendee being 
 a trespasser (c?) ; nor are such crops remaining on the premises 
 liable to a distress for rent (e). The sheriff is to allow the land- 
 lord to bring actions in his name against the vendee for breaches 
 of the agreement in assigning the crops, &c., the landlord in- 
 demnifying the sheriff before commencing his action (/). 
 
 Section III. 
 Fieri Facias. — fVhat Interest in Goods may be taken. 
 Respecting the interest of a defendant in goods which will Goods 
 
 ^ ° . "^ . . . pawned or 
 
 render them liable to be taken on a j^eri facias ; the sheriff leased. 
 cannot sell absolutely goods which are pawned or gaged for a 
 debt with the defendant, nor goods demised or let to him for 
 years (^r). 
 
 Where a house and the furniture therein were let to A. for 
 six months, and during that period the landlord and A. entered 
 into a written contract for the sale of the house and furniture to 
 A., the purchase-money to be paid on the completion of a good 
 title, but, before the completion of a good title, the contract was 
 rescinded by consent, it was held that, under this contract, the 
 furniture never vested in A. as his property, and therefore could 
 not be taken in execution under aji.fa. against him (A). 
 
 The sheriff, however, it seems, is not liable to an action for 
 selling the entire property, unless he is informed of the defend- 
 ant's having only a special property in the goods (?'). 
 
 The sheriff cannot take in execution goods held by the de- 
 fendant in right of a lien (A:). Again, goods pawned or gaged 
 
 (c) Sect. 3. (ft) Lanyon v. Toogood, 13 M. & 
 
 (d) Sect. 10. W. 27. 
 
 (e) Sect. 6. (i) Dean v. WhiUaker, 1 C. & P. 
 (/ ) Sect. 4. 347 ; sed qiMre, see Chit. Archb. 432, 
 (g) Dean v. Whittaker, 1 C. & P. 7tli edit. 
 
 347 ; Duffill v. Spottiswoode, 3 C. & (k) Legg v. Evans, 6 M.& W. 36 ; 
 
 P. 435 ; Izod v. Lamb, I C.&lJ. 35. 8 Dowl. 177, S. C.
 
 256 
 
 SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. 
 SECT. III. 
 
 Equitable in- 
 terest cannot 
 be taken. 
 
 Partnership 
 properly. 
 
 for a debt, or leased for years, cannot be taken in execution 
 against tbe 'pawnor or lessor (/) ; subject, however, to the right 
 of the lessee or pawnee, the sheriff may sell the goods so pawned 
 or leased {m). Such goods, however, cannot be seized till the 
 expiration of the right of the pawnee or lessee, for the pawnor 
 or lessor has no present right of possession (ii) ; but if fixtures 
 or trees demised with land for a term are severed by the tenant, 
 they immediately vest in the lessor, and would be liable to be 
 taken on an execution against the lessor (o). Goods distrained or 
 taken in execution are not liable to be taken on a subsequent exe- 
 cution (p), unless such former execution was a fraudulent one(5'). 
 
 A mere equitable interest in a term of years cannot be taken 
 in execution under a writ o^ fieri facias (r), and for that reason, 
 on a.fi.fa. against a mortgagor, an equity of redemption cannot 
 be taken in execution (s). But if the legal interest be in the 
 defendant, the term may be taken : thus, where the defendant 
 had agreed to sell the remainder of his terra, it ivas held that 
 before any actual assignment the term might be sold by the she- 
 riff under the fieri facias (t). 
 
 It seems that an outstanding term vested in a trustee upon 
 trust to attend the inheritance, is liable (by stat. 29 Car. 2, c. 3,) 
 to be seized under afi.fa. against the cestui que trust, the owner 
 of the inheritance (m). 
 
 On a writ o^ fieri facias against one of two partners, the sheriff 
 must seize all the joint property, because the moieties are un- 
 divided ; for if he seize but a moiety, and sell that, the other 
 partner has a right to a moiety of that moiety ; but he must 
 
 (/) Bro. Pledges, pi. 28 ; Execu- 
 tion, pi. 107; Dalt. 146; Rogers?). 
 Kennay, 15 Law J. (Q. B.) 381. 
 
 (m) See Tidd's Prac. 1042, Blh 
 edit. 
 
 (n) See Scott v. Scholey, 8 East, 
 476,479. If the lease of goods were 
 void, it would be otherwise ; see Smith 
 V. Plomer, 15 East, 607. 
 
 (o) See Farrant v. Thompson, 2 
 Dowl. 6c Ry. 1 ; 5 B. & A. 826, S. C. 
 
 (p) Bro, Pledges, 28 ; see Cro. 
 Car. 149. 
 
 (9) See as to priority of writs, ante, 
 p. 247. 
 
 (r) Scott V. Scholey, 8 East, 467 ; 
 Metcalf V. Scholey, 2 N. R. 461 ; 
 Moore v. Blake, 4 Dow, 230. 
 
 (s) Shirley v. Wright, 3 Atk. 200; 
 Burdon v. Kennedy, 3 Atk. 739 ; Lys- 
 ter V. Dolland, 3 Bro. Chan. Ca. 480; 
 I Ves. jun. 431. 'J'he proper remedy 
 for the plaintiff, in that case, is by 
 filing a bill in equity to redeem the 
 estate, by paying off the principal and 
 inteiest due on the morti;age ; but be- 
 fore he is entitled to redeem, he must 
 first take out a writ of execution against 
 the defendant, see 3 Atk. 200; though 
 it does not seem to be necessary to 
 have it returned, Redesd. Eq. PI. 102, 
 3rd edit. 
 
 {t) Sparrow v. Earl of Bristol, 1 
 Marsh. 10. 
 
 (m) Doe d. Phillips v. Evans, 1 C. 
 & M. 450 ; 3 Tyr. 339, S. C.
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 257 
 
 seize the whole, and sell a moiety thereof undivided, and the 
 vendee will be tenant in common with the other partner (x). 
 The duty of the sheriff is to sell the share of the defendant in 
 the partnership property, even though he may not be able to 
 ascertain the actual amount of his interest (y). If the execution 
 creditor disputes the fact of the partnership, the court will inter- 
 fere to protect the sheriff under the Interpleader Act (s). But 
 where the goods of two partners are taken in execution against 
 one of two partners, on a subsequent execution against the other 
 partner, the sheriff must hold the goods as seized ; one moiety 
 for the execution against one partner, the other moiety for the 
 execution against the other ; for if to the writ against the second 
 partner he return nulla bona, it is a false return (a). But in such 
 a case he must make an actual seizure of such other moiety, for 
 the purpose of satisfying the execution against such second 
 partner; for where aji.fa. had issued against one of two part- 
 ners, under which partnership property was seized, and after- 
 wards aji.fa. was issued against both the partners jointly, which 
 was lodged with the same sheriff who had seized under the first 
 writ, but the warrant was granted to a different officer, and no 
 actual seizure was ever made under the second writ, a fiat in 
 bankruptcy issuing afterwards, it was held that the seizure and 
 possession under the writ against the single partner, and the 
 lodging of the writ against the two partners, did not amount to 
 a seizure within the 108th section of the Bankrupt Act, 6 Geo. 4, 
 c. 16, and therefore the sheriff was not justified in satisfying the 
 second writ out of the proceeds of the goods (h). 
 
 In one case, where the sheriff had sold the whole of the part- 
 nership property, on an execution against one partner, the Court 
 of King's Bench granted a rule for the master to take an ac- 
 count of the partnership property belonging to the other partner, 
 
 (.t) Heydon i;, Heydon, Salk. 392 ; property, which can be sold by the 
 
 Morley v. Strombon, 3 Bos. & Pul. sheriff; see also Johnson v. Evans, 
 
 254; Pope v. Hanan, Comb. 217; supra. 
 
 Holmes v. Mentze, 4 Ad. cSc E. 127; (y) Holmes v. Mentze, 4 Ad. & E. 
 
 Johnson v. Evans, 7 Man. & G. 240 ; 127. 
 7 Scott, N.R. 1035, S. C. This rule (z) Ibid. 
 
 applies as well where the shares are (a) Buckhirst v. Clinkard, 1 Show, 
 
 unequal as where they are equal. But 174. 
 
 see Burton U.Green, 3 Car. & P. 306, (/>) Johnson «, Evans, 7 Man. ^ 
 
 from which it seems that there is some G. 240 ; 7 Scolt, N. R. 1035, S. C. 
 doubt as to the interest in partnership 
 
 CHAP. X. 
 SECT. iir.
 
 258 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. and tliat the sheriff should pay over to the assignees of such 
 
 SECT. III. 
 
 partner the sum found due to them (c). But where the sheriff 
 seized, on afi.fa. against one of several partners, his undivided 
 share of the partnership effects, the Court of Common Pleas 
 refused to refer it to the master to inquire what share the de- 
 fendant had in the partnership effects seized {d). And the same 
 court, under similar circumstances, on application by the part- 
 nership creditors, refused to enlarge the time for the sheriff to 
 return the writ until an account might be taken of the several 
 claims upon the property (e). So where an execution creditor 
 seized partnership property under di Ji. fa. against one of the 
 partners, afterwards a joint fiat issued against the firm, and the 
 property was then sold "without prejudice" to the rights of the 
 execution creditor, and the proceeds received by the assignees 
 of the bankrupts ; it was held that, as the interest applicable to 
 the execution creditor could only be in the surplus coming to the 
 execution debtor, after payment of the partnership debts, and 
 must depend on the settlement of accounts, which a court of law 
 is not competent to take, the execution creditor could not main- 
 tain an action for money had and received against the as- 
 signees (/). 
 Gooiis in (he On a. fieri facias against an executor for his own debt, the goods 
 cutor, admi' of the tcstator in the hands of the defendant cannot be taken in 
 TrmufJ' *"^ execution {g). And the law is the same where goods are in the 
 hands of a defendant as trustee (Ji) ; unless perhaps whei-e the 
 goods have been for a long time possessed by the defendant 
 under circumstances inconsistent with the trust (i). But if an 
 executrix use the goods of her testator as her own, and after- 
 wards marry, and then treat them as the goods of her husband, 
 she shall not be allowed to object to their being taken in execu- 
 tion for her husband's debt {k), 
 
 (c) Eddie v. Davidson, 2 Doug. S. C. ; see also Feuvvick v. Laycock, 
 
 650. 2 Q. B. 108. 
 
 {d) Chapman v. Keeps, 3 Bos. & (Ji) See Fenwick v. Laycock, 2 Q. 
 
 Pul. 289. B. 108. 
 
 (e) Parker v. Pistor, 3 Bos. & Pul. (i) See Gaskell v. Marshall, 1 Moo. 
 288. & Rob. 132 ; 5 C. & P. 31, S. C, 
 
 (f) Garbett V. Veale, 5 Q. B.408; per Lord Tenterden, C. J. ; see also 
 1 Dav. & iM. 458, S, C. Fenwick v. Laycock, su-pra, per Lord 
 
 (g) Farr v, Newman, 4T. R. 621; Denman, C. J. 
 
 Whaler t). Booth, 4 Dougl. 36 ; note (k) Quick v. Staines, 1 Bos. & Pul. 
 
 (a) to Farr v. Newman, 4 T. R. 625, 293.
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 
 
 259 
 
 Goods vested 
 in irastees for 
 
 On Si fieri facias against a husband, it would appear that the 
 sheriff may sell a term vested in the husband in right of his 
 wife (/). On a fieri facias against a wife on a judgment obtained 
 against her before coverture, the goods that she had before thebeneaiof 
 marriage cannot be taken, for they vest in the husband by the 
 marriage (/«)• And goods bond fide vested in trustees under a 
 settlement made before marriage for the benefit of the wife, 
 and in the possession of the husband, cannot be taken in execu- 
 tion on Sifi.fa. against the husband (n), although there has been 
 no inventory of the goods (o), and although they are of a fluc- 
 tuating nature (;?). And it seems that a settlement after mar- 
 riage would have the same effect, if made for a good and valuable 
 consideration, and without fraud ((j') ; or if made in pursuance 
 of an agreement entered into before marriage (r). But whether 
 goods, vested in trustees for the benefit of the wife by settle- 
 ment made either before or after marriage, be or be not liable 
 to be taken in execution against the husband, always depends 
 upon the fact whether the settlement be bond fide or not : the 
 cases of settlements made before marriage are prima facie free 
 from fraud (s), but the amount of the consideration, and other 
 circumstances in the case, are questions for a jury to say whether 
 the settlement be fraudulent ornot(/). If, however, the hus- 
 band carry on trade with the goods settled on the wit'e (ti), or 
 his possession be inconsistent with the deed, the goods may be 
 taken on a fi. fa. against him (x). If a claim be set up by 
 trustees of the wife, on an execution against the husband, the 
 sheriff should apply to the court under the Interpleader Act(y). 
 Wearing apparel, purchased by a wife living with her husband, 
 out of money vested in trustees for her sole and separate use 
 
 (0 See 4 T. R. 638. 257; Earl of Shaftesbury v. Russel, 
 
 {m) See Doe d.Taggartt). Butcher, 3 Dovvl. & Ry. 84; 1 Bar. & Cress- 
 
 3 M. & S. 558. 666, S. C. 
 
 (n) Cadogan v. Kennett, Cowp. (r) 1 Eq. Ca. Abr. 148. 
 
 432 ; see also Foley v. Burnell, id. (s) See Cowp. 432 ; 3 T. R. 618. 
 
 435, n. ; Simmons v. Edwards, 16 M. (f) Dewey v. BayntuD, 6 East, 
 
 & W. 838. 257. 
 
 (fl) Jarman v. Woolloton, 3 T, R. (u) See Jarman v. Woolloton, 3 T. 
 
 618. R.618. 
 
 (p) Id. ibid. (x) Derby v. Smith, 8 T. R. 82. 
 
 (?) Nun V. Wilsmore, 8T. R. 521; (y) Post, s. 6. 
 see also Dewey v. Bayntun, 6 East, 
 
 s 2
 
 260 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. before marriage, is liable to be taken under a fi. fa- against the 
 -fl^-^lii^ husband (y). 
 If the goods 'f he sheriff is bound at all events to levy whatever goods the 
 
 in tact are •' " 
 
 no( the pro- defendant has in his county ; and thus he would be, but for the 
 
 perty of ilie . •' 
 
 defendant. protection of the court, often placed in an awkward dilemma ; 
 for if he fail to levy goods of the defendant in his bailiwick, he 
 is responsible to the plaintiff in an action for a false return ; if, 
 on the other hand, he seize goods which belong to a stranger, 
 although they apparently are the property of the defendant, he 
 is liable to an action of trespass (2). The court however will, 
 whenever the property in the goods is disputed, allow the 
 sheriff, under the stat. 1 Will. 4, c. 58, to interplead, and obtain 
 an issue to try who is the real owner of the goods (a); and there- 
 fore the sheriff should not return the writ when there is a dispute 
 as to the property. Thus, where the defendant has obtained 
 possession of goods by fraud, they cannot be taken in execution 
 against him, for he can have no property in goods obtained by 
 fraud (b). And where a woman, having assumed the name and 
 passed for the wife of B., and permitted him to appear to be the 
 owner of the furniture of the house in which they both lived, 
 it was held that such furniture could not be taken in execution 
 against B. (c). But where the real owner of goods suffered 
 them, while in the possession of a debtor, to be seized and sold 
 without making any claim to them, it was held that he could not 
 afterwards maintain trover for them against a person who pur- 
 chased them under the execution with his knowledge and suf- 
 ferance {d). Whether the goods belong to the defendant or to 
 a stranger, the sheriff should apply to the court for protection, 
 whenever there is a reasonable doubt as to the property in the 
 goods ; for in Dalton, 140, it is laid down, that if the sheriff 
 take the goods of a stranger on Si. fieri facias, and return the levy, 
 he is concluded by it. However, it has been decided that a 
 sheriff is not in all cases concluded by his return ; for where 
 
 (v) Came v. Brice, 7 M. & W. Dowl. Sx. Ry. 755; 1 Bar. & Cress. 
 
 183"; 8 Dowl. 884, S. C. 514. 
 
 (s) Dalt. Sheriff, 145, 146 ; Gilbert (c) Edwards v. Bridges, 2 Stark. 
 
 on Execution, 21 ; see also Oughton N. P. C. 396 ; Glasspoole v. Young, 
 
 V. Seppings, 1 B. & Adol.241. 9 B. & C. 696 ; 4 Man. & Ry. 553. 
 
 (a) See post, s. 6. (d) Pickard v. Sears, 6 Ad. & E. 
 
 (6) Earl of Bristol v. Wilsmore, 2 469 ; see also Gregg v. Wells, 10 Ad. 
 
 & E. 90,
 
 SECT. III. 
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 2G1 
 
 the sherifF returned to ?i fieri facias goods in hands for want of chap 
 buyers, and a commission having issued against the defendant, 
 on an act of bankruptcy committed before the delivery of the 
 writ to the sherifF, it was held, in an action for not selling those 
 goods on a venditioni exponas, that the sherifF was not concluded 
 by his return, for the defendant had a defeasible title, which had 
 in fact been defeated (e). 
 
 Goods sold by the person against whom afi.fa. issues after [[""^^by^e- 
 the delivery of the writ to the sherifF, unless in market overt, J,*^^'!;''!^^'"'" 
 are liable to be taken and sold by virtue of the execution (/) ; 
 for the goods are bound by the delivery of the writ to the she- 
 rifF (§■). The property, however, in the goods is not changed 
 by the delivery of the writ to the sherifF; and the defendant 
 may, notwithstanding, transfer such property, subject however 
 to the claims of the execution creditor (A). 
 
 But if the defendant sell his goods bond fide, and for a valu- 
 able consideration, before the delivery of the writ to the sherifF, 
 they cannot be taken in execution (?) ; and though he sell them 
 fraudulently, yet if they be afterwards sold bond fide to another, 
 as where a donee lends the donor money to buy goods, and at 
 the same time takes a bill of sale of them for securing the money, 
 they are not liable to be taken in the hands of a second ven- 
 dee (A;). But if the defendant's goods be sold fraudulently, 
 before the delivery of the writ to the sherifF, they may be taken 
 in execution. A principal badge of fraud is the defendant's 
 continuing in possession (/). In the old cases it seems to have 
 been considered, that if a man sell goods and continue in pos- 
 session as visible owner of them, such sale was void and fraudu- 
 lent against creditors (m). But later cases have qualified this 
 position ; for although the vendor's continuing in possession is 
 generally a badge of fraud, yet it is not necessarily so ; for where 
 
 (e) Brydges v. Walford, 6 M. & (h) Samuel v. Duke, 3 M. & W. 
 
 S. 42 ; see also Porter v. Viner, i 622 ; 6 Dowl. 538, S. C. 
 
 Chitty's Rep. 613, n. (0 Bull. N. P. 258, recog. in 
 
 (/) See Samuel v. Duke, 3 M. & Kidd v. Rawlinson, 2 Bos. & Pul. 60. 
 
 W. 622 ; 6 Dowl. 538, S. C. ; 3 Atk. See also 10 Ves. 145. 
 
 739. A mere agreement by the de- (fc) Godb. 161 ; and see 1 M. & 
 
 fendant to sell his goods will not pre- Sel. 251, quaere, 
 
 vent them from being taken in execu- (/) Twyne's case, 3 Rep. 81. 
 
 lion; Sparrow v. Earl of Bristol, 1 (m) Id. ibid.; Stone o. Grubbam, 
 
 Marsh. 10. 2 Bulstr. 225 ; Edwards v. Harben, 
 
 {g) See a7ite, 246 ; 3 Atk. 739. 2 T. R. 587.
 
 262 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. goods are assigned, and the assignor remains in possession of 
 
 SECT. III. , . ■ t 1 1 1 n ■ 1 
 
 them on terms consistent with the deed oi assignment, the as- 
 signment is not considered fraudulent (n) ; as where goods are 
 publicly sold, and are afterwards let by the vendee to the vendor 
 for a rent, who continues in possession (o), or where the defend- 
 ant remains in possession for the purpose of disposing of them 
 for the vendee (/)), although the defendant is ostensibly the 
 owner, yet they are not liable to be taken on an execution 
 against the defendant. In questions of this kind, possession is 
 to be much regarded, with a view to ascertain the good faith or 
 bad faith of the transaction ; but although the defendant con- 
 tinue in possession of goods after a bill of sale executed by 
 him, yet if it appear that the vendee actually paid the consider- 
 ation for them, and that the sale was notorious in the neighbour- 
 hood, as being made under an execution, the question is proper 
 for a jury to say upon the whole case whether the transaction 
 be bond Jide or not[q). And where A. put B. into possession 
 of a public-house, and allowed B. to continue the ostensible 
 owner of the goods in the house, it was held that the goods 
 could not be taken in execution against B. (r) ; for it has never 
 been held that a person may not give the possession of his goods 
 to another, without subjecting them to an execution for his debt. 
 Thus, where a creditor, having taken goods of a defendant in 
 execution upon a judgment confessed on a warrant of attorney, 
 bought them by public auction, and took a bill of sale of them 
 from the sheriff for a valuable consideration ; after which he let 
 the goods to the defendant for a rent which was actually paid ; 
 the Court of Common Pleas held that the creditor had a title 
 which could not be impeached as fraudulent by other creditors 
 having executions against the same defendant (5). And where a 
 testator devised goods to trustees, to allow the persons to enjoy 
 
 (ji) Woodham t).Baldock,3Moore, ('p) Jezeph v. Ingram, 1 Moore, 
 
 11 ; Martindale v. Booth, 3 B. & Ad. 189. See Hindle v. Bell, 4 Campb. 
 
 498; Carr v. Buidiss, 1 C. M. & R. 383. 
 
 782; 5 Tyrw. 309, S. C; Minshall (q) Latimer v. Batson, 4 Bar. & 
 
 V. Lloyd, 2 M. & W. 450 ; Reeves v. Cress. 652 ; 7 Dow. & Ry. 108, S. C. 
 
 Capper, 5 Bing.N.C. 136, per Tindal, (r) Dawson v. Wood, 3 Taunt. 
 
 C. J. 250. 
 
 (0) Watkins v. Birch, 4 Taunt. (4) Walkins v. Birch, 4 Taunt. 
 
 823 ; Steward v. Lonab, 1 Brod. & 823. And see the other cases cited in 
 
 Bing. 506. See also Leonard v, note (o). 
 Baker, 1 M. & S. 251 ; Kidd v. Raw- 
 linson, 2 B. & Pul. 60.
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 2G3 
 
 them who should be possessed of a certain mansion-house under chap. x. 
 
 the will, it was held that such goods could not be taken in exe- _^;^J^]j ;_ 
 
 cution against a tenant for life of the inansion-house, who was 
 in possession of the goods under the will(i). And where A. 
 cohabited with B., assumed his name, and passed for his wife, 
 and permitted him to appear to be the owner of the furniture of 
 the house in which they lived, it was held that the furniture, 
 being her property, was not liable to be taken in an execution 
 against B. (u). 
 
 As the sheriff cannot take the goods of a stranger, if the Where the 
 
 r> • 1 1 n ^ (iefVtulant has 
 
 defendant become bankrupt before the seizure, the goods of the become a 
 bankrupt cannot be taken on a fi. fa. against him ; for by the 
 bankruptcy the property in them vests in the assignees (x). 
 And where the sheriff, having seized the goods of a defendant 
 on aji.fa. delivered to him before the defendant's bankruptcy, 
 afterwards sold goods enough to satisfy that execution and also 
 another writ delivered to him after the bankruptcy of the de- 
 fendant, it was held that the sheriff was liable to the assignees, 
 in an action of trover, for the amount of the goods sold to satisfy 
 the second writ (y). If the seizure of the goods and the act of 
 bankruptcy happen on the same day, it is open to inquire at 
 what time of the day the goods were seized ; for if the goods 
 were seized at an earlier period of the day than the act of 
 bankruptcy, the execution is good (z). And if the seizure were 
 made two months before the issuing of the fiat, it is valid, 
 although the act of bankruptcy was before the seizure (a). If 
 the sheriff seize and sell the goods before he has notice of an 
 act of bankruptcy, he is excused (b) ; and if he sell them after 
 notice, but before a fiat sued out, although he may be suable 
 in trover (c), or for money had and received, yet he is not liable 
 in tirespass, for an officer shall never be a trespasser by rela- 
 
 (t) Earl of Shaftesbury v. Russell, (z) Thomas v. Desanges, 2 Bar. & 
 
 3 Dowl. & Ry, 84 ; 1 Bar. & Cress. Aid. 586 ; Ex parte Uobree, 8 Ves. 
 
 666, S.C. 82; Saddler v. Leigh, 4 Camp. 197 ; 
 
 (it) Edwards v. Bridges, 2 Stark. Woodland u. Fuller, 1 1 Ad. & E. 859. 
 
 N. P. C. 396 ; Glasspoole v. Young, (a) 6 Geo. 4, c. 16, s. 81. 
 
 9 B, & C. 696 ; 4 Man. & R. 553, (/<) Cooper v. ChiUy, 1 Bla. Rep. 
 
 S. C. 65; 1 Burr. 20, S.C. 
 
 (j) Smalcomb v. Cross, 1 Lord (r) Id. ibid. And it lies upon the 
 
 Raym. 252 ; Phillips V.Thomson, 3 sheriff' to show that he paid over the 
 
 Lev. 69, 191. money to the execution creditor be- 
 
 (y) Stead v. Gascoigne, 8 Taunt, fore notice of the act of bankruptcy; 
 
 527. Lee v. Lopes, 15 East, 230.
 
 264 sheriff's duties in the execution of a fieri facias. 
 
 SI.CT. III. 
 
 CHAP. X. tion (d). If the writ be executed on goods which the bankrupt 
 has acquired since the bankruptcy, the execution will be good, 
 if the bankrupt's certificate be not then signed and allowed (e). 
 Yet if the certificate be allowed at any time before the goods are 
 sold, the court will order them to be restored on motion (/). 
 
 The 2 & 3 Vict. c. 29, s. 1, enacts, " that all contracts, deal- 
 ings and transactions by and with any bankrupt really and bond 
 Jide made and entered into before the date and issuing of the 
 fiat against him, and all executions and attachments against the 
 lands and tenements or goods and chattels of such bankrupt, 
 bona Jide executed or levied before the date and issuing of the 
 fiat, shall be deemed to be valid, notwithstanding any prior act 
 of bankruptcy by such bankrupt committed ; provided the per- 
 son or persons so dealing with such bankrupt, or at whose suit 
 or on whose account such execution or attachment shall have 
 issued, had not at the time of such contract, dealing or transac- 
 tion, or at the time of executing or levying such execution or 
 attachment, notice of any prior act of bankruptcy by him com- 
 mitted ; provided also, that nothing herein contained shall be 
 deemed or taken to give validity to any payment made by any 
 bankrupt, being a fraudulent preference of any creditor or cre- 
 ditors of such bankrupt, or to any execution founded on a judg- 
 ment on a warrant of attorney or cognovit given by any bank- 
 rupt by way of such fraudulent preference." 
 
 If a writ of ^. fa. is lodged with the sheriff after the defend- 
 ant has been declared a bankrupt and assignees appointed, the 
 sheriff should return nidla bona (g) ; and this return will not 
 be vitiated by the fiat being afterwards, and after the return, 
 annulled (/<). The words " executed and levied," in the 2 & 3 
 Vict. c. 29, are satisfied by a seizure under the writ ; all execu- 
 tions, therefore (except such as are hereafter particularly men- 
 tioned, being such as are founded on judgments entered up on 
 warrants of attorney, or on cognovits executed before decla- 
 ration, and judgments by default, confession, or nil dicit, in 
 actions commenced not adversely, or by collusion, or for the 
 
 (d) Smith V. Miller, 1 T. R. 475. Eames, 4 Moore, 350 ; 2 Brod. & 
 
 (^e) CuUeriD.Mey rick, 1 T.R, 361; Bing. 8, S. C. See also Davis d. 
 
 Neateley v. Engleton, 2 Tidd's Prac. Shapley, 1 B. & Ad. 54. 
 
 1049, 8lh edit. (g) See Smallcombe v. Olivier, 13 
 
 (/) Lister v. Mundell, 1 Bos. & M. & W. 77 ; 2 Dowl.& L. 217. 
 
 Pul. 427. See also Dimsdale v. (h) Ibid.
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 265 
 
 SECT. III. 
 
 purpose of fraudulent preference), are rendered valid by the chap. x. 
 statute, notwithstanding a prior act of bankruptcy, provided 
 that there has been a seizure under the writ before the date and 
 issuing of the fiat, and provided also that the execution creditor 
 had not, at the time of such seizure, notice of such prior act of 
 bankruptcy (i). 
 
 The notice of a prior act of bankruptcy, required by the sta- 
 tute to invalidate an execution bo7id jide executed and levied 
 before the date and issuing of the fiat, must be given to the 
 person at whose suit the execution has issued, i. e. to the creditor 
 himself; and the execution would not be invalidated by notice 
 to the sheriff or his bailiff only (A:). But notice to the attorney 
 of the execution creditor, given before the issuing of the fi.fa., 
 has been held to be notice to the creditor himself (^). No par- 
 ticular form of notice is necessary ; and it seems that it would 
 be sufficient to give notice generally that an act of bankruptcy 
 has been committed, without stating the nature of the act (m). 
 If the notice contain information of an act done, which may or 
 may not turn out to be an act of bankruptcy, according to cir- 
 cumstances, it is sufficient (w). Notice of a docket having been 
 struck has been held not to be notice of an act of bank- 
 ruptcy (o). The time of delivering out the fiat as an operative 
 instrument is the " date and issuing" within the meaning of the 
 statute ; and pnw/d facie the delivery of it out of the bankrupt 
 office is the time from which it becomes an operative instru- 
 ment (^). It is not necessary, in order to render an execution 
 valid by virtue of this statute, that there should be bona fides on 
 the part of the debtor; for it has been held that the words 
 " bond fide" in the statute have reference only to the bona fides 
 of the creditor who caused the execution to issue, and of the 
 sheriff, who is his minister {q). 
 
 The Stat. 2 & 3 Vict. c. 29, does not, however, protect trans- 
 actions which are of themselves acts of bankruptcy, and conse- 
 
 (0 See Giles v. Grover, 9 Bing. («) Rothwell v. Tirabrell, 1 Dowl. 
 
 267 ; Cheston v. Gibbs, 12 M. & W« N. S. 778. 
 
 lH- (o) Hocking D. Acraman, 1 Dowl. 
 
 (k) Ramsey v. Eaton, 10 M. & W. & L. 434 ; 12 M. & W. 170, S. C. 
 
 22. (p) Pewtress v. Annan, 9 Dowl. 
 
 (/) Rothwell v. Tirabrell, 1 Dowl. 828. 
 
 N. S. 778. (,) Belcher v. Magnay, 12 M. & 
 
 (m) See Ramsey v. Eaton, 10 M. W. 102. 
 & W. 27, per Parke, B.
 
 266 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. qiiently invalid ; and tlierefore, where the seizui'e under the 
 SECT. III. execution is itself an act of bankruptcy, by reason of its having 
 been procured by the trader himself, in order to defeat or delay 
 his creditors, the statute will not protect it, although it may 
 have been bond Jide levied so far as regards the execution cre- 
 ditor and the sheriff (?•). But in order to complete the assignee's 
 right of action under such circumstances, it is necessary that 
 there should be a conversion, e. g. by sale of the goods seized 
 after the accrual of their title, that is, after the act of bank- 
 ruptcy (s). Therefore, in an action of trover at the suit of 
 assignees, to a plea framed under the stat. 2 & 3 Vict. c. 29, 
 showing an execution bond fide executed before the date and 
 issuing of the fiat, and alleging the conversion to be by seizure 
 of the goods under the fi. fa., it may be replied that the debtor 
 procured the fi. fa. to be issued with intent to delay his cre- 
 ditors, and thereby then committed an act of bankruptcy, and 
 new assigning that afterwards, and after the seizure of the said 
 goods, the defendant converted them modo etformd, which is the 
 conversion in the declaration mentioned. And such a replica- 
 tion will not be open to the objection that it is an argumenta- 
 tive traverse that the execution was bond fide executed ; and it 
 is not necessary in the new assignment to point out in what the 
 conversion new assigned consists {t) . Neither does the 2 & 3 Vict, 
 c. 29, protect executions founded on judgments entered up on 
 warrants of attorney, unless such executions are perfected both 
 by seizure and sale before the date and issuing of the fiat, for 
 the 2 & 3 Vict. c. 29, does not operate as a repeal of the 108th 
 section of the 6 Geo. 4, c. 16 (?<). It is not, however, essential 
 to the validity of an execution founded on a judgment entered 
 up on a warrant of attorney, that the proceeds of the sale should 
 be paid over to the creditor before the issuing of the fiat ; it is 
 sufficient if the sale has taken place before that time, because 
 immediately on the sale of the goods levied the judgment cre- 
 ditor ceases to be a creditor of the bankrupt within the mean- 
 
 (r) Hall V. Wallace, 7 M. & W. (w) Whitmore v. Robertson, 8 M. 
 
 353; Belcher v. Magnay, 12 M. & & W. 463 ; Skey t;. Carter, 11 M. & 
 
 W. 102. VV. 571 ; 2 Dowl. N. S. 831, S. C. ; 
 
 (s) Ihid, see also Rawdon j;. Wentworth, 10 
 
 (t) Belcher v. Magnay, 12 M. & M. & VV. 36; Godson v. Sanctuary, 
 
 W. 102. 4 B. & Ad. 262.
 
 WHAT INTEREST IN GOODS MAY BE TAKEN. 267 
 
 SECT. III. 
 
 ing of the 6 Geo. 4, c. 16, s. 108 (x). If an execution founded chap. 
 on a judgment on a warrant of attorney is completed by seizure 
 and sale prior to the issuing of the fiat, it is protected by the 
 statute, although the creditor had notice of the act of bank- 
 ruptcy before the sale (?/). To a plea to an action of trover 
 at the suit of assignees framed on this statute, justifying a con- 
 version by seizure under a Ji. fa. against the bankrupt, and 
 alleging that the defendants executed and levied their execution 
 against the goods before the fiat, it may be replied that the 
 judgment on which the writ has issued was entered up on a 
 warrant of attorney, and that after the fat the defendants sold 
 the goods, which is the conversion complained of, and such a 
 replication will not amount to an argumentative traverse that 
 the execution was executed and levied before the fiat, but will 
 be good by way of confession and avoidance, as admitting that 
 the execution was executed and levied (for it has been shown 
 that those words are satisfied by a seizure alone under the writ) 
 before the fiat, and avoiding the effect of such execution and 
 levy, by showing circumstances to bring it within the 108th 
 section of the 6 Geo. 4, c. 16 (2). 
 
 An execution founded on a judgment entered up on a cog- 
 novit, executed before declaration filed or delivered, or on a 
 judgment by default, confession, or nil dicit, in an action com- 
 menced not adversely or by collusion, or for the purpose of 
 fraudulent preference, requires also to be perfected by seizure 
 and sale before fiat, precisely in the same way as executions 
 founded on judgments on warrants of attorney ; the 108th sec- 
 tion of 6 Geo. 4, c. 16, applying in terms to all judgments 
 by default, confession, or nil dicit, and the 1 Will. 4, c. 7, s. 7, 
 having only excepted from the operation of that section judg- 
 ments on cognovits signed after declaration filed or delivered, 
 and judgments by default, confession, or nil dicit, according to 
 the practice of the court, in actions commenced adversely, and 
 not by collusion, or for the purpose of fraudulent preference. 
 
 In the case of an execution against an insolvent debtor, issued insolvency of 
 on a judgment founded on a warrant of attorney or cognovit, 
 
 (x) Ramsey v. Eaton, 10 M. & W. W. 104 ; 2 Dowl. & L. 174. 
 
 22; Morland v. Pellatt, 8 B. & C. (s) Cheston v. Gibbs, 12M.& W. 
 
 722. 111. 
 
 (3/) VVhitmore v. Greene, 13 M. &
 
 2G8 sheriff's duties in the execution of a fieri facias, 
 
 CHAP. X. the Stat. 1 & 2 Vict. c. 110, s. 61, enacts, "that in all cases 
 , ^^^'' '"' where any prisoner whose estate shall have been vested in the 
 said provisional assignee under this act shall have executed any 
 warrant of attorney to confess judgment, or shall have given 
 any cognovit actionem, or bill of sale, whether for a valuable 
 consideration or otherwise, no person shall, after the commence- 
 ment of the imprisonment of such prisoner, avail himself or 
 herself of any execution issued or to be issued upon any judg- 
 ment obtained or to be obtained upon such warrant of attorney 
 or cognovit actionem, or of such bill of sale, either by seizure 
 and sale of the property of such prisoner, or any part thereof, 
 or by sale of such property theretofore seized, or any part 
 thereof, but that any person or persons to whom any sum or 
 sums of money shall be due in respect of any such warrant of 
 attorney or cognovit actionem, or of such bill of sale, shall and 
 may be a creditor or creditors for the same under this act." 
 
 The old Insolvent Act (7 Geo. 4, c. 57) contained a clause 
 (s. 34) in almost the same words, and under that act it was 
 held, that a sheriff who had seized the goods of an insolvent 
 debtor under a Ji. fa. issued upon a judgment founded on a 
 cognovit, and who sold after notice of the assignment to the 
 provisional assignee, was liable for so selling to an action of 
 trover at the suit of the assignees (a), even though the goods 
 were seized by the sheriff under the writ before the commence- 
 ment of the insolvent's imprisonment (6). But the execution 
 creditor is entitled to the amount of all monies actually realized 
 by sale of goods seized under aji.fa. before the commencement 
 of the insolvent's imprisonment, although at that lime other 
 part of the goods may remain unsold in the sheriff's hands (c). 
 
 Section IV. 
 
 Fieri Facias. — Goods seized, when and how to he sold. 
 
 Goods when It seems that if the sheriff seize the goods of the defendant on 
 
 be sold. premises belonging to the defendant or a stranger, he is allowed 
 
 to remain on the premises a reasonable time in order to remove 
 
 (o) Groves I/. Cowhara, 10 Bing. 5. (c) Squire u. Huetson, 1 Q.B. 308. 
 
 (6) Kelcey v. Minter, 1 Bing. N. C.721.
 
 GOODS SEIZED, WHEN AND HOW TO BE SOLD. 269 
 
 the goods. After the sheriff has seized the goods, it is his duty chap. x. 
 
 to remove them to a place of safe custody until they can be sold, 
 for if they be rescued the sheriff is liable to the plaintiff for 
 their value (d) ; and it is said, if the sheriff take cattle, and re- 
 turn that he has taken cattle to the value of 100/,, and after- 
 wards the cattle die for want of meat, the sheriff is answerable 
 for the value returned (e). The court will not interfere to re- 
 strain a sheriff from selling goods seized under a fi,fa. on an 
 offer of indemnity from a claimant of them (/). In selling the 
 goods, the sheriff or his officer is not obliged to sell them by 
 public auction, but the expense of any other mode of sale will 
 fall upon himself (>o-). In the case of a lease for years taken by 
 the sheriff on 2iji.fa., the sheriff should assign it by deed, under 
 the seal of office, without specifying the particular time that the 
 lease has then to run {h). Although goods are put up to sale 
 by public auction, yet if they are sold for much below their real 
 value, the sheriff is liable to an action ; for in such case he 
 should return that he has goods which remain in hands for want 
 of buyers, and wait for a venditioni exponas («). But where a 
 broker sold a lease, taken on Siji.fa., for a sum much below its 
 value, vujiich sale the sheriff refused to complete, and returned 
 that the goods remained in his hands for want of buyers, it was 
 ruled at Nisi Prius that the sheriff was liable in an action for a 
 false return {j). The sheriff may sell the goods after the return 
 of the writ, even after he is out of office, without a venditioni 
 exponas (k). The sale or assignment by the sheriff of goods or 
 chattels of the defendant taken on a Ji.fa., conveys an inde- 
 feasible title to the vendee ; so much so, that if the writ be 
 afterwards vacated, the defendant shall not be restored to his 
 goods (/). But if the writ were void, as issuing from a court 
 
 (rf) Sly V. Finch, Cro, Jac. 514. (;) Barnaid v. Leigh, 1 Stark. 43. 
 
 (e) Ibid. 515; 2 Lord Raym. (A:) Doe d. Stevens v. Donston, 
 
 1075. 1 Bar. & Aid. 230; Ayre v. Aden. 
 
 (/) Harrison v. Foster, 4 Dowl. Cro. Jac. 73; 1 Roll. Abr, 893, 894; 
 
 558. per Holt, C. J., 6 Mod. 295 ; Jeans v. 
 
 (g) Phillips V. Viscount Canter- Wilkins, 1 Ves. 195; sed vide Yelv. 
 
 bury, 11 M. & W. 619 ; 1 Dowl. & 44; 1 Lutw. 589. If the sheriff seize 
 
 L. 283, S. C. goods, and a supersedeas be afterwards 
 
 (h) Ante, 252 ; Taylor v. Cole, 3 deliveied lo him, a vendilioni eiponas 
 
 T. R. 294; Palmer's case, 4 Rep. 74; may still issue to him to sell them; 
 
 Cro. Ehz. 584, S. C. ; and see form of Cro. Eliz. 597. 
 
 a deed of assignment by the sheriff of (/) Doe v. Thorn, 1 M. & S, 425; 
 
 goods seized by him on & Ji.fa., post, Doe d. Batten v. Murless, 6 M. & S. 
 
 Append. 110; Dyer, 363, pi. 24 ; 5 Rep. 90 b. 
 
 (i) Keighlley r. Birch, 3 Camp. 520. 
 
 StCT. IV.
 
 270 SHERIFV's DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. not having jurisdiction, or if the goods were the goods of a 
 
 — '— stranger and not of the defendant, of course the sale by the 
 
 sheriff would convey no property (m). But the sheriff cannot 
 retain the goods to his own use, on satisfying the plaintiff out of 
 his own money (??) ; so neither can he deliver them to the plain- 
 tiffin satisfaction of his debt (o). But they may be sold to the 
 plaintiff, though they cannot be delivered to him without a 
 sale (p). 
 Venditioni I" Order to compcl a sale of the goods, where the same she- 
 
 ejponaa. riff Continues in office, it is usual to issue a writ of venditioni 
 exponas. This writ is not a process distinct from the Ji. fa., but 
 is a part of it, and therefore a judge has power to order the 
 sheriff to return it in vacation, under 2 Will. 4, c. 39, s. 15 (q). 
 This writ should be sued out without delay ; for if, after the sheriff 
 makes his return to aji.fa., the plaintiff lies by without proceed- 
 ing against the sheriff, and the goods should in the mean time be 
 taken on an extent, or the defendant become bankrupt, and the 
 sheriff deliver them to the assignees, the court will quash a writ 
 of distringas obtained against the sheriff (r). After the delivery 
 of the venditioni exponas to the sheriff, it is his duty to sell the 
 goods at all events for the best price that can be got for them (s). 
 But the Court of Common Pleas refused in one case to grant an 
 attachment against the sheriff for returning to a venditioni ex- 
 ponas that the goods remained in hands for want of buyers {t). 
 The proper mode of proceeding, if the sheriff do not sell on or 
 before the return of the venditioni exponas, is to sue out a dis- 
 tringas against him, directed to the coroner, and if he do not sell 
 the goods, and pay over the money before the return of that writ, 
 he shall forfeit issues to the amount of the debt (m). 
 
 (m) See Farrant v. Thompson, 2 (r) Ruston v. Hatfield, 3 Bar. & 
 
 Dowl. & R. 1 ; see also Lock v. Sel- Aid. 204; Clutterbuck v. Jones, 15 
 
 wood, 1 Q. B. 736. East, 78. And if the act of bank- 
 
 (?i) Noy, 107; Langdon r. Wallls, ruptcy was prior to the seizure on the 
 
 1 Lutw. 589. ^e/j/acias, the sheriff is not concluded 
 
 (o) Bealey v. Sampson, 2 Vent by his return of goods in hands for 
 
 93 ; Thomson v. Clerk, Cro. Eliz. want of buyers ; Brydges v. Walford, 
 
 504. 6 M. & Sel. 42. 
 
 (p) See Leader v. Danvers, 1 Bos. (s) See Keightley i;. Birch, 3 Camp. 
 
 & Pul. 360; Petit i;. Benson, Comb. 524 ; Cowp. 405. 
 
 452 ; Stratford v. Twynam, Jacob, (t) Leader v, Danvers, 1 Bos. & 
 
 418. Pul. 359. 
 
 {<l) Hughes V. Rees, 4 M. & W. («) Clerk i-. Withers, 6 Mod. 300 ; 
 
 468; 7 Dowl. 56, S. C; Reg. v. see also Chit. Arch. 437, 7ih edit. 
 
 Sheriff of Berks, 8 Dowl. 97. Where the sheriff has returned to a^.
 
 GOODS SEIZED, WHEN AND HOW TO BE SOLD. 271 
 
 But where four writs offi.fa. at the suit of different plaintiffs chap. x. 
 
 against the same defendant were successively delivered to the '- — - 
 
 sheriff", to the last of which he returned that he had seized goods, 
 value unknown, which remained in his hands for want of 
 buyers, upon which a venditioni exponas issued, the court stayed 
 an attachment for not returning the venditioni exponas, on the 
 sheriff"s paying over the balance in his hands, after satisfying 
 the former writs (x). 
 
 If the sheriff" neglects to sell for an unreasonable time, and the 
 plaintiff" thereby sustains any damage, an action on the case may 
 be supported against him for his breach of duty (?/). In making 
 sale of goods under a venditioni exponas^ the sheriff" is not bound 
 by the value set upon the goods in the return to the Ji. fa. (z). 
 The sheriff" ought to stop the sale of the goods as soon as a suffi- 
 cient sum has been raised to cover the amount of the levy, ex- 
 penses, &c. (a) ; and after selling enough in fact for that pur- 
 pose, he is not justified in selling more, on the supposition that 
 by accident, for which he is not answerable, the amount levied 
 may become insufficient (b). 
 
 If the sheriff" return that he has seized goods on a Ji.fa., Distringas 
 which remain unsold for want of buyers, and go out of office, comitem. 
 the plaintiff" may sue out a distringas nuper vicecomitem, by which 
 writ the new sheriff" is commanded to distrain the old sheriff" to 
 sell the goods, and have the money in court at the return (c). 
 The sheriff"'s authority to sell the goods, we have seen, is not 
 derived from the distringas, for the sheriff", who has seized 
 goods, may sell them after he is out of office ; but this writ is 
 compulsory upon him (d). If there has been laches on the part 
 
 /a. that he has levied, he cannot to the Gill, 11 M, & W. 315 ; 1 Dowl. & 
 
 venditioni exponas return that he has L. 693, S. C. 
 
 sold the goods, but detains the naoney (a) See Cook v. Palmer, 6 B. & C. 
 
 for another party, who is a plaintiff 739; Bayley, J., Batchelor v. Vyse, 
 
 under a prior writ ; Rowe v. I'app, 9 4 M. & So. 552. 
 
 ■Price, 317. (6) Aldred v. Constable, 6 Q. B. 
 
 (x) Reg. V. Sheriff of Herts. 9 370. 
 
 Dowl. 916. (c) See the form of the writ, 2 
 
 (i/) Jacobs V.Humphrey, 2 C.& M. Saund. 47 q, note. The old form of 
 
 413 ; Bates v. Wingfield, 2 N. & M. writ was, that the new sheriff should 
 
 831 ; 4 Q. B. 580. n. (u), S. C. have the money in court ; see 6 Mod. 
 
 (2) Chatter v. Peter, Cio. Eliz. 299. 
 
 598; Sly v. Finch. Cio. Jac. 515; (d) Clerk v. Withers, 6 Mod. 299 ; 
 
 Godb. 276 ; Wintle v. Lord Chet- 1 Salk. 323 ; 2 Lord Raym. 1074, 
 
 wynd, 7 Dowl. 654; Chambers v. 1075, S.C; 2 Saund. 47 q. 
 Coleman, 9 Uowl. 588 ; Barton v.
 
 272 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. of the plaintiflT, or collusion between him and the officer, the 
 ^sECT. IV. (,Q^,y(. ^jji j^Qj grant the distringas (e). And if a fiat in bank- 
 ruptcy issue against the defendant, on an act of bankruptcy 
 committed before the seizure of his goods under a. Ji.fa., the 
 court will not grant a distringas after a return of goods in his 
 hands unsold, for in such case the sheriff" is not concluded by 
 his return as to the property in the goods being in the defend- 
 ant (f). Where, to the distringas, the new sheriff returned 
 that he had distrained issues to the value of 40*., and in conse- 
 quence of the delay further costs had been incurred, the court 
 increased the issues to the amount of 100^. to meet the costs 
 incurred (g). 
 Payment of The sheriff, on a Jieri facias, may release the goods, or omit to 
 costs, or bond levy them, on payment of the debt and costs to himself, for the 
 rity toihe sheriff is ordered to levy the debt; and his duty on aji.fa. in 
 good. ' * this respect differs from his duty on a ca. sa. (h), for on the 
 former writ payment to the sheriff is a bar to any future exe- 
 cution. Indeed, it has been said that if the sheriff seize the 
 goods after a tender of the debt and costs, he is a trespasser («). 
 And the sheriff may, if he please, take a bond conditioned to 
 pay the money into court on the return of the^. fa. (k), or to 
 save him harmless against a false return to aji.fa. (^), such 
 bonds not being void under the stat. 23 Hen. 6, c. 9, that 
 statute extending only to bonds given by or for prisoners in 
 custody on mesne process (m). But the sheriff, for releasing the 
 defendant's goods on taking a bond, would be liable to the 
 plaintiff in an action for a false return, and must seek his remedy 
 over upon the bond. 
 SheriflF's pro- When the sheriff has duly seized goods under a writ oi fieri 
 goods seized, facuis, he has such a special property in them as to enable him 
 
 Actions by , • , • , ^ ■ ^ i . i 
 
 him for in- to maintain trespass or trover against any person who may take 
 jury 1 ereto. ^j^gj^ q^j. ^f ]^jg possession (?j), for he is answerable to the plain- 
 tiff to the value of the goods ; but he acquires no general pro- 
 
 (e) Ruston v. Hatfield, 3 Bar. & (i) Per Twysden, J., in Lefans u. 
 
 Aid, 204 ; 1 Chitty's Hep. 613. S. C. Moregreeti, 1 Keb. 655. 
 
 (/) Clutterbuck D. Jones, 15 East, (/c) Beawfage's case, 10 Rep. 99 b. 
 
 78 ; Brydges v. Walford, 6 M. & S. (/) Knipe v. Hobart, I Lutw. 596. 
 
 42. {m) See Rogers v. Reeves, 1 T. R. 
 
 ig) Phillips V. Morgan, 4 Bar. & 421 ; 1 Saund. 161. 
 
 Aid. 652 ; Nowell v. Underwood, 5 (n) Wilbraham v. Snow, 2 Saund. 
 
 Dowl. 229. 47 ; 1 Vent. 52, S. C. ; 1 Lev. 282 ; 
 
 Qi) Taylor v. Bekon, or Baker, 2 1 Sid. 438; S. P. Clerk v. Withers, 
 
 Lev. 203 ; T. Jones, 97, S. C. 6 Mod. 292.
 
 GOODS SEIZKD, WHEN AND HOW TO BE SOLD. 27.1 
 
 perty in them (o). Where a fi.fa. was delivered to the sheriff, chap. x. 
 
 and, before it was executed, the attorney of another creditor ob- '. — '- 
 
 tained a warrant from the sheriff, and sold the goods on a second 
 fi.fa., it was held that the sheriff, who returned a levy on the 
 first writ, might recover the amount of the levy from the attor- 
 ney in an action for money had and received ; for the clerk of 
 the attorney must be considered the agent of the sheriff in 
 making the levy, the proceeds of which were liable to satisfy the 
 writ first delivered (p). But the sheriff, in order to maintain 
 any action against a person for taking goods seized by him on a 
 fi.fa., must continue in actual possession of them ; for where a 
 sheriff's officer seized a table in the name of all the goods in 
 a house, and locked up his warrant in the table-drawer, and left 
 the house, it was held that the sheriff could not maintain an 
 action against the landlord who afterwards distrained them for 
 rent (^q). And where the sheriff seizes goods in the possession 
 of the defendant, which he obtained by fraud, the sheriff cannot 
 maintain an action against the real owner for rescuing them out 
 of his custody (r). 
 
 The defendant is discharged from the iudgment and all fur- Defemiant 
 
 h H' 
 
 ther execution, if the sheriff has taken goods to the amount of charged by a 
 the debt, although he does not satisfy the plaintiff (s) ; or if the ''^*" 
 sheriff has levied goods to the amount of part of the debt, no 
 further execution can issue until the writ is returned (<); but 
 one obligor cannot plead that the goods of his co-obligor were 
 seized under a. fi.fa., for it is no actual satisfaction of the debt ; 
 the plea is confined to the party whose goods are taken (ii). 
 
 If, after goods are seized and sold under a writ of fieri facias. Restitution, 
 
 1-1 n • 1 1 ^ovi made. 
 
 the judgment be afterwards reversed or set aside, the party 
 against whom the execution was sued out shall have restitution 
 of the money levied, that is, of the money properly levied by 
 
 (o) Doe d. Hughes v. Jones, 9 M. Cro. Jac. 514, S. C. ; Taylor v. Baker, 
 
 & W 372; Playfair j;. Musgiove, 14 2 Mod. 214; Clerk v. Withers, 6 
 
 Rl. & W. 239. Mod. 292, 299 ; 1 Salk. 323, S, C. 
 
 (p) Sawle I). Paynter, 1 Dowl. & (t) Miller ?;. Parnell, 2 Marsh. 78; 
 
 Ry. 307. 6 Taunt. 370, S. C. ; Chapman v. 
 
 (q) Bladesv. Arundale,! M.&Sel. Boulby, 8 M. & W. 249; 1 Dowl. 
 
 71 1. N. S. 83, S. C. ; Thomas v. Newnam, 
 
 (r) Earl of Bristol v. Wilsmore, 2 Dowl. N. S. 34. 
 2 Dowl. & Ry. 755 ; 1 B. & C. 514, (w) Dyke v. Mercer, 2 Show. 394 j 
 
 S. C. 2 Lord Raym. 1072, Gould, J. 
 
 (s) Slie V. Finch, 2 Roll. Rep. 57 ;
 
 274 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. the officer (x), but not of the goods themselves. Thus, if a 
 SECT. IV. tgrm be sold under a Ji. fa., and the judgment be reversed, it is 
 only the money for which it was sold, and not the term itself, 
 which shall be restored (?/). But if the judgment be reversed 
 before a term or goods be sold, the term or goods of course 
 must be restored to the party (2), Where the judgment is set 
 aside for irregularity, &c., restitution (when necessary) forms 
 part of the rule ; and if the goods or money be not restored, the 
 court will of course grant an attachment (c). 
 
 Section V. 
 Fieri Facias, — Landlord's Claim for Rent. 
 Landlord's Where the sheriff has seized goods under a writ of fieri 
 
 claim for . i-i i- ■ -, n -r i 
 
 rent. factas, they are not liable to be distrained for rent. In order to 
 
 give a preference to the landlord over all other creditors, it was 
 enacted by stat. 8 Anne, c. 14, s. 1, *' that no goods upon any 
 tenements leased for life or lives, term of years, at will or other- 
 wise, shall be liable to be taken by virtue of any execution, on 
 any pretence whatever, unless the party at whose suit the exe- 
 cution is sued out shall, before the removal of such goods from 
 off the said premises by virtue of such execution, pay to the 
 landlord of such premises, or his bailiff, all such sums of money 
 as are or shall be due for rent of the premises at the time of 
 taking such goods by virtue of such execution, provided the 
 arrears do not amount to more than one year's rent ; and in case 
 the arrears shall exceed one year's rent, then the party at whose 
 suit, &c., paying the landlord or his bailiff one year's rent, may 
 
 (.r) Whalley v. Barnett, 2 Dowl. shall have restitution without a scire 
 
 33. facias, because it appears on the record 
 
 (v) Doe«. Thorn, 1 M.& Sel.425; that the money had been paid, and 
 
 Roll. Abr. Error (1)1; Cro. Eliz. there is a certainly what has been lost; 
 
 278 ; 5 Rep. 90 b; Dyer, 363, pi. 24. but if the money have not been paid 
 
 (2) See 2 Roll. Abr. 491, 1. 4. If over, a. scire facias (juare restitutionem 
 
 the judgment be reversed on a wiit of iion, suggesting the matter of fact, viz. 
 
 error, the plaintiff in error shall have the sum levied, ike, must first pre- 
 
 a writ of restitution, in order that he viously issue ; see Chit. Archb. 418, 
 
 may be restored to all he has lost by 7th edit. ; 2 Tidd's Prac. 8tli edit. 
 
 the judgment. If execution on the (a) Anon. 2 Salk. 588; and see 
 
 judgment have been executed, and the Chit. Archb. Prac. 418, 7th edit. ; 2 
 
 money paid over, the plaintifTin error Tidd's Prac. 8th edit.
 
 LANDLORDS CLAIM FOR RENT. 
 
 21(5 
 
 SECT. 
 
 proceed to execute his judgment ; and the sheriff is required to chap 
 levy and pay to the plaintiff as well the money paid for rent as _ 
 the execution money." And by s. 8, it is " provided that no- 
 thing in that act contained shall extend to hinder her majesty, 
 her heirs, &c., but that it shall! and may be lawful for her ma- 
 jesty, her heirs, &c., to levy, recover, and seize such debts, 
 fines, penalties, and forfeitures, in the same manner as if that 
 act had never been made." 
 
 The 7 & 8 Vict. c. 96, s. G7, enacts, " that no landlord of any 
 tenement let at a weekly rent shall have any claim or lien upon 
 any goods taken in execution under the process of any court of 
 law for more than four weeks' arrears of rent; and if such 
 tenement shall be let for any other term less than a year, the 
 landlord shall not have any claim or lien on such goods for more 
 than the arrears of rent accruing during four such terms or 
 times of payment («)." 
 
 The statute of 8 Anne applies to any goods upon the pre- 
 mises, to whomsoever those goods belong (6). The landlord, 
 under this act, is only entitled, in preference to an execution, to 
 rent due at the time of taking the goods, and not to rent which 
 accrues due during the time that the sheriff is in possession (c). 
 To entitle the landlord to a year's rent under the statute, the 
 premises must be held by the tenant at a rent certain ; and 
 therefore where the tenant entered into possession in January, 
 1829, under an agreement made in October, 1828, whereby a 
 lease was to be granted to him from the 20th November, 1828, 
 but no lease was granted, and the tenant continued to occupy 
 until the time of the execution in February, 1842, but it was 
 not shown that any payment of rent had been made ; it was 
 held that it did not sufficiently appear that the tenant occupied 
 as tenant at a rent certain to entitle the landlord to a year's rent 
 before the removal of the goods ((/). But where, in an agree- 
 ment for the sale of certain premises, there was a stipulation 
 that " in the meantime, and until the assignment was made, the 
 purchaser should pay and allow to the vendor at the rate of 
 
 (a) See also, as to the right of the (6) Foster v. Cookson, 1 Q. B. 419. 
 
 landlord in the case of executions out (c) Hoskinst). Knight, 1 M. & Sel. 
 
 of the county courts established by 9 245. 
 
 & 10 Vict. c. 95, the 107th section (d) Riseley i'. Ryle, 11 M. & W. 
 
 of that act. 16. 
 
 T 2
 
 276 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. 100/. per annum from tlie time of taking possession of the pre- 
 ^^^^' ^' mises until the completion of the purchase, in equal half-yearly 
 payments," the purchaser having taken possession, and one half- 
 yearly payment being due, it was held that it was due as renty 
 and that the vendor was entitled to it under the statute of Anne 
 before the removal of any of the goods which had been seized 
 under an execution after it became due (e). The sheriff must 
 pay the landlord his rent under this statute, if he has notice of 
 tiie rent being due at any time whilst the goods or the proceeds 
 are in his hands, although after the removal of them from the 
 premises (/). If the landlord have a year's rent paid to him 
 on one execution, and more rent remains due, he shall not be 
 entitled to receive another year's rent on a subsequent execu- 
 tion (g). A ground landlord is not a landlord entitled to a 
 year's rent within this statute (A) ; but the statute applies to a 
 case of lessee and undertenant, and to goods in an apartment, 
 part of a messuage (<) ; and it was held that the trustees of an 
 outstanding term, assigned to attend the inheritance, might sue 
 the sheriff for not paying over a year's rent in levying goods on 
 aji.fa. under this statute (A:). Where the goods on a farm and 
 premises were seized on aji.fa. against the tenant, and a habere 
 facias possessionem in an ejectment at the suit of the landlord, 
 on a demise prior to the issuing of the fi. fa., was afterwards, 
 and before any sale under the fi. fa., delivered to the sheriff; it 
 was holden that the landlord was not entitled to a year's rent, 
 for the tenant was a trespasser from the day laid in the declara- 
 tion in ejectment, and consequently the defendant was not a 
 tenant within the meaning of the statute at the time the sheriff 
 seized the goods on the premises {I). 
 
 The statute does not apply where the landlord himself is the 
 execution creditor (m) ; and therefore where the landlord, having 
 seized his tenant's goods under an execution, was afterwards 
 compelled to refund to the assignees of the tenant, who had 
 become an insolvent, it was held that he could not as against 
 them retain a year's rent(n). This statute applies to all manner 
 
 (e) Saunders v. Musgrave, 6 B. & 428 ; 5 M. & P. 270, S. C. 
 
 C. 524. (/c) CoUyer v. Speer, 2 Brod. & 
 
 (/) Arnitt v. Garnett, 3 Bar. & Bing. 67. 
 
 Aid. 440; Andrews v. Dixon, 3 Bar. (I) Hodgson v. Gascoigne, 5 Bar. 
 
 bL Aid. 645. & Aid. 88 ; Riseley v. Ryle, 10 M. & 
 
 {g) Dodd V. Saxby, Stra. 1024. W. 101. 
 
 (h) Bennett's case, Stra. 787. Cm) Taylor v, Lanyon, 6 Bing. 536. 
 
 (^i) Thurgood i;. Richardson, 7 Bing. (71) Ihxd.
 
 landlord's claim for rent. 277 
 
 of executions for the subject, upon judgments for the defendant chai'. x. 
 as well as for the plaintift'(o). If the sheriff' take goods on a _^]^^J2jZ1_ 
 capias utlagatum, he must satisfy the landlord his year's rent, 
 because that writ is to be considered only as a private execu- 
 tion (p) ; but a seizure of goods under a power pe;' vad'tos out 
 of the Court of Common Pleas at Durham was held not to be a 
 seizure under an execution within the meaning of the statute, 
 although such a seizure had the effect of a seizure under an 
 execution (r^). A commission of bankruptcy is not an execution 
 within this statute ; and although the landlord has a right to 
 distrain goods on the premises for a year's rent, notwithstanding 
 the bankruptcy of the tenant (r), yet it was held that where the 
 sheriff' executed a ji. fa., and paid the landlord a year's rent 
 after an act of bankruptcy committed by the defendant, that the 
 sheriff was answerable for the amount of that rent to the as- 
 signees in an action for money had and received (5). 
 
 The landlord is entitled to a full year's rent, although he may 
 have been used generally to remit some portion of it to the 
 tenant (t). The sheriff" is not bound to remove the goods in 
 execution, unless the party at whose suit the execution is sued out 
 shall, before the removal of such goods, pay the landlord a year's 
 rent(M). Nor is he bound to levy at all, whatever be the value 
 of the goods, unless the execution creditor, having notice, first 
 satisfies the landlord's rent(x). If the goods are not sufficient 
 to satisfy the year's rent of which he has notice, he ought to 
 withdraw from possession (?/). If the sheriff" do not pay over 
 to the landlord his rent under this statute, an action on the 
 case may be maintained against the sheriff" (2), which action 
 will lie, after the death of the landlord, for his executor or 
 administrator (a) ; but the landlord cannot, to recover under this 
 
 (0) Henchett v. Kimpson, 2 VVils, 28; 1 RI. & Sc 92, S. C, 
 
 140. (m) Calvert v. Joliffe, 2 B. & Ad. 
 
 (p) Rex V. Southerby, Bunb. 5; 421, Lord Tenterden, C.J. See also 
 
 Greaves v. d'Acastro, Bunb. 194; Riseley v. Ryle, 11 M. .i; W. 21, 
 
 Rex V. Pritchard, Bunb. 269 ; Si. Parke, B. 
 
 John's College t'. Murcott, 7 T. R. (i) Cockem. Musgrove, 15 Law J., 
 
 264. Q. B. 365. 
 
 (9) Brandling v. Barrington, 6 B. (y) Ihid., and see Foster v. Hilton, 
 
 & C. 467. 1 liowl. 35. 
 
 (r) See 6 Geo. 4, c. 16, s. 74. (s) Riseley v. Ryle, 11 M. & VV. 
 
 (s) Lee V. Lopes, 15 East, 230 ; 16. 
 
 Ex parte Desharmes, I Atk. 103 ; see (a) Palgrave v. Windham, Stia, 
 
 also Gethin i>. Wilks, 2 Dowl. 189. 212. 
 
 («) Williams v. Lewsey, 8 Biug.
 
 278 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. statute, maintain an action for money had and received (6). 
 _!^_!lZl_ The sheriff must have notice of the rent being due whilst the 
 proceeds are in his hands, to make him liable to an action (c) : 
 but no specific form of notice is prescribed by the statute ; it is 
 sufficient that knowledge of the rent being due is brought home 
 to the sherifr(c/). A declaration under the statute of Anne 
 against the sheriff must distinctly allege that the tenancy in the 
 premises was subsisting at the time of the seizure (e) ; but it 
 need not allege that the goods taken were distrainable goods (/), 
 nor need it aver any notice to the execution creditor (g). The 
 sheriff is not liable to an action unless there has been an actual 
 removal of the goods from the premises, and the execution of a 
 bill of sale of them is not equivalent to such removal (/«). If the 
 landlord declares against the sheriff in two counts, one on the 
 statute of Anne and the other in trover, claiming, so far as re- 
 gards the second count, under a fraudulent bill of sale, he is not 
 thereby prevented from recovering on the first count, for that is 
 distinct from the second (i). If an action is brought against the 
 sheriff on the statute of Anne, the court will not stay proceed- 
 ings on payment by him of the proceeds of the sale of the goods 
 removed (k). Instead of bringing an action, the landlord may 
 move the court that he may be paid what is due to him out of 
 the money levied, if sufficient for that purpose, or otherwise so 
 much as the sheriff has levied (/). The landlord is entitled to 
 his rent without any deduction for poundage (m) ; but where he 
 takes the security of a third person for the rent at the time of 
 the execution, the sheriff is discharged as to the landlord's claim 
 for rent(n). If the plaintiff bring an action against the sheriff 
 for the money levied, the sheriff must prove that the rent was 
 
 (6) Green v. Austin, 3 Camp. 260. (h) Smallman v. Pollard, 1 Dowl. 
 
 (c) Smith j;. Russell, 3 Taunt. 400; & L. 901. 
 
 Waring v. Dewberry, Stra. 97. (/) Reed v. Thoyts, 6 M. & W. 
 
 (d) Collyer v. Spear, 2 Brod. & 410. 
 
 Bing. 67 ; Andrews v. Dixon, 3 Bar. (k) Foster v. Hilton, 1 Dowl. 30; 
 
 & Aid. 645; Arnilt v. Garnett, 3 Calvert d. Joliffe, 2 B. & Ad. 418. 
 
 Bar. & Aid. 440; Riseley v. Kyle, (/) Henchett u. Kimpson, 2 Wils. 
 
 11 M. & W. 20, Parke, B. 140; Darling v. Hill, Rep. Temp. 
 
 (e) Riseley v. Ryle, 10 M. & W. Hardw. 255; West w. Hedges, Barnes, 
 101. 211; and see Haunw. Capell, Barnes, 
 
 (/) Riseley v. Ryle, 11 M. & \V. 199. 
 16. (m) Gore v. Gofton, Stra. 643. 
 
 (g) Ibid. (n) Rotheray v. Wood, 3 Camp. 24.
 
 landlord's claim for rent. 279 
 
 due, in order to discharge himself as to a payment for a year's chap. x. 
 rent made by him to the landlord (o). ' 
 
 And by the statute of the 43 Geo. 2, c. 99, s. 37, it is enacted, 
 that '• no goods or chattels whatever belonging to any person at 
 the time any of the said duties" (which are all the duties under 
 the management of the commissioners for the affairs of taxes) 
 " to be assessed under the regulations of this act became in 
 arrear, shall be liable to be taken by virtue of any execution or 
 other process, warrant, or authority, or by virtue of any assign- 
 ment, on any account or pretence whatever, except at the suit 
 of the landlord for rent, unless the party at whose suit the said 
 execution or seizure shall be sued out or made, or to whom such 
 assignment shall be made, shall, before the sale or removal of 
 such goods or chattels, pay or cause to be paid to the collector 
 or collectors of the said duties so due all arrears of the said 
 duties which shall be due at the time of seizing such goods or 
 chattels, or which shall be payable for the year in which such 
 seizure shall be made, pi'ovided the duties shall not be claimed 
 for more than one year ; and in case the said duties shall be 
 claimed for more than one year, then the said party at whose 
 instance such seizure shall have been made, paying the collector 
 or collectors the aforesaid duties due for one whole year, may 
 proceed in his seizure as he might have done if no duties had 
 been so claimed ; but in case of refusal to pay the said duties, 
 the said collector or collectors are hereby authorized and re- 
 quired to distrain such goods and chattels notwithstanding such 
 seizure or assignment, and proceed to sale thereof according to 
 this act, in order to obtain payment of the whole of the said 
 duties so assessed, together with the reasonable costs and charges 
 attending such distress and sale." 
 
 Section VI. 
 
 The Sheriff'' s Duty in Case of adverse Claims. — Interpleader. 
 
 As the sheriff is bound to execute the writ at his peril, where 
 the defendant becomes bankrupt, and his assignees claim the 
 goods, or there be any doubt whether or not the goods are liable 
 
 (o) Keiglilley v. Birch, 3 Camp. 521.
 
 280 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. to be taken on a fi. fa., the sheriff should immediately apply to 
 ^^^' ^'' the court from which the writ issues for protection, if one party 
 will not give him a sufficient indemnity ; otherwise, by seizing 
 the goods, or by returning nulla bona, the sheriff may subject 
 himself to an action (yj). Before the passing of the statutes re- 
 lating to interpleader, wherever the property in goods seized on 
 aji.fa. was disputed, the courts were accustomed, on the sug- 
 gestion of a reasonable doubt, to enlarge the time for the sheriff 
 to make his return until the right was tried between the con- 
 tending parties, or until one of them had given a sufficient in- 
 demnity to the sheriff or to his officer (^). Thus, where the 
 sheriff had seized goods by virtue of aji. fa., but by the direc- 
 tion of the plaintiff the officer abandoned the execution, the 
 warrant on that writ was placed again in the hands of an officer 
 who was in possession under another writ; the defendant having 
 become bankrupt, the officer, after satisfying the plaintiff in the 
 second writ, delivered the remainder of the goods up to the 
 assignees of the defendant ; the sheriff being ruled to return 
 the first writ, the Court of Common Pleas enlarged the time for 
 the sheriff to make his return until he was indemnified (r). So 
 the Court of King's Bench, upon the application of the sheriff, 
 enlarged the time for his making a return to a. fieri facias, (upon 
 the suggestion of a reasonable doubt whether the goods seized 
 under the writ were not covered by an extent, issued at the suit 
 of the crown for malt duties), for the purpose of inducing the 
 plaintiff to go into the Court of Exchequer, and there contest 
 the question of right with the crown in a more eligible manner 
 than in that court (s). And where the defendant had become 
 bankrupt after the seizure, but before the goods were sold, and 
 the assignees claimed the goods, the Court of Common Pleas 
 stayed proceedings in an action commenced against the sheriff 
 on his selling the goods and bringing the money into court {t). 
 It was, however, quite discretionary in the courts, as well 
 
 (p) See Keiglitley y. Birch, 3 Camp. bridge, 2 Blac. Rep. 1064. 
 
 620; Saunders v. Bridges, 3 Bar, & (r) Burr v. Freethey, 1 Bing. 71 ; 
 
 Aid. 95. 7 Moore. 368, S. C. 
 
 (7) Venables w. Wilks, 4 Moore, {s) Wells i;. Fickman, 7 T. H. 174. 
 
 339; Thurston D. Thurslon, 1 Taunt. (() Mac Geoige j;. Birch, 4 Taunt. 
 
 120; Ledbury v. Smiih, 1 Chitty's 585; King d. Bridges, 1 Moore, 43 ; 
 
 Rep. 294; Rex t>. Sheriff of Devon, 7 Taunt. 294. S C. ; Ledbury v. 
 
 I Chitty's Rep. 843; Shaw v. Tun- Smith, 1 Chitty's Rep. 294.
 
 IN CASE OF ADVERSE CLAIMS. 281 
 
 SECT. VI. 
 
 whether or not they would interpose to protect the sherifF(M), chap 
 as upon what terms they would protect him. In one case, the 
 court granted a rule for enlarging the time for the sheriff to 
 make his return from term to term until the sheriff should be 
 indemnified (x) ; in another case, the time was enlarged for a 
 certain number of days, in order that the sheriff might satisfy 
 himself as to the property {y) ; in another case, the time was 
 enlarged until the right should be settled in another court (s). 
 If the sheriff or his officer had favoured one party by throwing 
 obstacles in the way of or by delaying the other party, the 
 courts would not protect him (a) ; or the sheriff, by not apply- 
 ing to the court in time, might lose its protection. Thus, where 
 the sheriff, under a. Ji.fa. and a writ of extent, seized not only 
 the defendant's goods, but also goods belonging to a stranger 
 which were on the premises, and the sheriff returned to both 
 writs that he had seized goods to the amount, but that they 
 remained in hands for want of buyers, the sheriff being obliged 
 afterwards, by order of the Court of Exchequer, to levy the 
 amount of the extent upon the defendant's goods, and not upon 
 the goods of the stranger, and having no longer goods of the 
 defendant to satisfy the^.^a., he applied to the court for leave 
 to amend his return to the latter writ. The court, however, 
 refused to allow the amendment, saying, that as he had seized 
 sufficient property of the defendant under this writ, he must be 
 accountable to the plaintiff for it : had he, as soon as he received 
 the order of the Court of Exchequer, stated the facts of the case 
 to that court, they would have relieved him from his embarrass- 
 ment. Again, where the law was clear on the subject, the 
 courts would not interfere to protect the sheriff. Thus, where 
 the sheriff had seized partnership property on a ji. fa. ao-ainst 
 one of several partners, the Court of Common Pleas refused to 
 enlarge the time for the sheriff to make his return till the part- 
 nership creditors had taken an account of the claims on the pro- 
 perty, because the law on the case was clear, intimating that the 
 safest course for the sheriff to pursue was for him to put some 
 
 (m) See cases cited ajife, notes (^), (y) Etchells v. Lovatt, 9 Price, 
 
 (?•), (s), and (i), and fwit, note (i). 54. 
 
 (.1) Venables i'. Wilks, 4 ^]oole, (:) Wellsi;, Pickman, 7 T. R. 174. 
 
 339. See also Probiuier v. Roberts, («) Timbrel! D.Mills, I Blac. Hep. 
 
 1 Chitly's Rep. 577 ; Ihurston v. 205. 
 Thurston, I Taunt. 120.
 
 282 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. person into possession of the defendant's share as vendee, leaving 
 
 '- — 1 him and the parties to litigate their respective rights in a court 
 
 of equity (c). 
 Of impanti- Where the sheriff had a doubt to whom the property in goods 
 irKi'iiie into scizcd by him on a. Ji.fa. belongs, he might impanel a jury to 
 the gifo'u." inquire as to that fact ; and it was formerly supposed that this 
 would justify the sheriff in returning that the defendant had no 
 goods within his bailiwick ((Z), and mitigate the damages in an 
 action of trespass, if the goods seized should happen not to be 
 the defendant's {e). But it was afterwards determined that such 
 an inquisition, finding the goods in a third person, was not ad- 
 missible in evidence in an action against the sheriff for a false 
 return of nulla bona to a fi.fa.(^f). In the same case Lord 
 EUenborough, C. J., said that he should think it might perhaps 
 be evidence if the question were whether the sheriff had acted 
 maliciously, but beyond that he could not see how it could be 
 evidence (g-). It would therefore seem that there was not any 
 real benefit to be derived by holding such an inquest ; and that 
 proceeding has now become altogether obsolete by reason of 
 the statutory provisions which are now to be noticed, enabling 
 the sheriff, in case of adverse claims, to apply to the courts for 
 relief by way of interpleader. 
 Interpleader. The Stat, 1 & 2 Will. 4, c. 58, s. 6, after reciting that diffi- 
 culties sometimes arise in the execution of process against 
 goods and chattels, issued by or under the authority of the said 
 courts, by reason of claims made to such goods and chattels by 
 assignees of bankrupts and other persons not being the parties 
 against whom such process has issued," whereby sheriffs and 
 other officers are exposed to the hazard and expense of actions, 
 and it is reasonable to afford relief and protection in such cases 
 to such sheriffs and other officers ; it enacts, " that when any 
 such claim shall be made to any goods or chattels taken or 
 intended to be taken in execution under any such process, or to 
 the proceeds or value thereof, it shall and may be lawful to and 
 for the court from which such process issued, upon application 
 
 (c) Parker t). Pistor, 3 Bos. & Pul. (e) Bro. Abr. Trespass, 99; Keilvv. 
 
 288. See also Chapman v. Koops, 119; 4 T. R. 633; Dalton, 146; 1 
 
 3 Bos. & Pul. 289. Doug. 40. 
 
 (rf) Gilb. P:xeculion, 21 ; Dalton, (/) Glossop v. Pole, 3 M. & Sel. 
 
 146; see also Laikow v. Earner, 2 H. 175. 
 
 Blac.437; 6 T, R. 88. {g) Ihid. 177.
 
 INTERPLEADER. 283 
 
 of such sheriff or other officer made before or after the return chap. x. 
 
 of such process, and as well before as after any action brought ! L_ 
 
 against such sheriff or other officer, to call before them, by rule 
 of court, as well the party issuing such process as the party 
 making such claim, and thereupon to exercise, for the adjust- 
 ment of such claims and the relief and protection of the sheriff 
 or other officer, all or any of the powers and authorities herein- 
 before contained, and make such rules and decisions as shall 
 appear to be just, according to the circumstances of the case; 
 and the costs of all such proceedings shall be in the discretion 
 of the court." 
 
 The reference in this section to the *' powers and authorities 
 hereinbefore contained" renders it necessary to state the other 
 sections of the act, the direct application of which is to cases in 
 which a bill of interpleader in equity might before have been 
 brought. 
 
 The 1st section enacts, " that upon application made by or on 
 the behalf of any defendant sued in any of his majesty's courts 
 of law at Westminster, or in the Court of Common Pleas of the 
 county palatine of Lancaster, or the Court of Pleas of the county 
 palatine of Durham, in any action of assumpsit, debt, detinue, 
 or trover, such application being made after declaration, and 
 before plea, by affidavit or otherwise, showing that such de- 
 fendant does not claim any interest in the subject-matter of the 
 suit, but that the right thereto is claimed or supposed to belong 
 to some third party who has sued or is expected to sue for the 
 same, and that such defendant does not in any manner collude 
 with such third party, but is ready to bring into court or to pay 
 or dispose of the subject-matter of the action in such manner as 
 the court (or any judge thereof) may order or direct, it shall be 
 lawful for the court, or any judge thereof, to make rules and 
 orders calling upon such third party to appear and to state the 
 nature and particulars of his claim, and maintain or relinquish 
 his claim, and upon such rule or order to hear the allegations as 
 well as of such third party as of the plaintiff, and in the mean- 
 time to stay the proceedings in such action, and finally to order 
 such third party to make himself defendant in the same or some 
 other action, or to proceed to trial on one or inore feigned issue 
 or issues, and also to direct which of the parties shall be plaintiff 
 or defendant on such trial, or, with the consent of the plaintiff
 
 JSl sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. and such third party, their counsel or attornies, to dispose of 
 _l^!l!ll'' the merits of their claims and determine the same in a summary 
 manner, and. to make such other rules and orders therein as to 
 costs and all other matters as may appear to be just and rea- 
 sonable.'' 
 
 The 2nd section provides, " that the judgment in any such 
 action or issue as may be directed by the court or judge, and 
 the decision of the court or judge in a summary manner, shall 
 be final and conclusive against the parties, and all persons 
 claiming by, from, or under them." 
 
 By section 3 it is enacted, " that if such party shall not appear 
 upon such rule or order to maintain or relinquish his claim, 
 being duly served therewith, or shall neglect or refuse to comply 
 with any rule or order to be made after appearance, it shall be 
 lawful for the court or judge to declare such third party, and 
 all persons claiming by, from, or under him, to be for ever 
 barred from prosecuting his claim against the original defend- 
 ant, his executors or administrators, saving nevertheless the 
 right or claim of such third party against the plaintiff; and 
 thereupon to make such order between such defendant and the 
 plaintiff, as to costs and other matters, as may appear just and 
 reasonable." 
 
 Section 5 provides, " that if, upon application to a judge in 
 the first instance, or in any later stage of the proceedings, he 
 shall think the matter more fit for the decision of the court, it 
 shall be lawful for him to refer the matter to the court ; and 
 thereupon the court shall and may hear and dispose of the same 
 in the same manner as if the proceeding had originally com- 
 menced by rule of court, instead of the order of a judge." 
 
 The 7th section enacts, " that all rules, orders, matters and 
 decisions to be made and done in pursuance of this act, except 
 only the affidavits to be filed, may, together with the declaration 
 in the cause (if any), be entered of record, with a note in the 
 margin expressing the true date of such entry, to the end that 
 the same may be evidence in future times, if required, and to 
 secure and enforce the payment of costs directed by any such 
 rule or order ; and every such rule or order so entered shall 
 have the force and effect of a judgment, except only as to be- 
 coming a charge on any lands, tenements, or hereditaments ; 
 and in case any costs shall not be paid within fifteen days after
 
 INTERPLEADER. 285 
 
 notice of the taxation and amount thereof given to the party chap. x. 
 ordered to pay the same, his agent or attorney, execution may sect, vi. 
 issue for the same by Jierl facias or capias ad satisfaciendum, 
 adapted to the case, together with the costs of such entry, and 
 of the execution if hy fieri facias ; and such writ and writs may 
 bear teste on the day of issuing the same, whether in term or 
 vacation ; and the sheriff or other officer executing any such 
 writ shall be entitled to the same fees, and no more, as upon 
 any similar writ grounded upon a judgment of the court." 
 
 It will be observed, that although by the other sections of 
 this statute the power of adjudication is given either to the 
 court or a judge thereof, the 6th section, by enacting that it 
 shall be lawful for "the court from which the process issued" 
 to call the parties before them " by rule of court," expressly 
 reserved the jurisdiction, in the case of an application by the 
 sheriff, to the court in banc (A). But this being found inconve- 
 nient, by a subsequent statute, 1 & 2 Vict. c. 45, s. 2, after 
 reciting the 6th section of the 1 & 2 Will. 4, c. 58, it is pro- 
 vided that it shall be lawful for any judge of the Courts of 
 Queen's Bench, Common Pleas, or Exchequer, with respect to 
 any process issued out of any of those courts, or for any judge 
 of the Court of Common Pleas of the county palatine of Lan- 
 caster, or Court of Pleas of the county palatine of Durham 
 (being also a judge of one of the three superior courts), with 
 respect to process issued out of the courts of Lancaster or 
 Durham respectively, to exercise such powers or authorities for 
 the relief and protection of the sheriff or other officer, as may, 
 by virtue of tlie said act, be exercised by the said several courts 
 respectively, and to make such order thereon as shall appear to 
 be just; and the costs of such proceeding shall be in the discre- 
 tion of such judge. The application may now, therefore, be 
 made at chambers, and, by reason of the common jurisdiction of 
 the judges of the superior courts of common law under the 1st 
 section of the same statute (1 & 2 Vict. c. 45), to any judge of 
 any of those courts, from whatever court the process issued. 
 If made in court, it can only be to the court in which the action 
 is pending ; and if there be two actions in different courts, an 
 application must be made in each (J). In the Exchequer and 
 
 (fe) See Bragg V. Hopkin3,2 Dowl. 151. (i) Allen i;. Gylby, 3 Dowl. 143.
 
 280 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. Common Pleas, the rule nisi will not operate as a stay of pro- 
 SECT. VI. ceedings without previous notice (/). The decision of the judge 
 is in general subject to review by the court ; but where, by 
 consent of the parties, the judge disposes summarily of an inter- 
 pleader order, the court has no authority to review his deci- 
 sion (wj). In the exercise of this jurisdiction, it will be seen 
 that most of the principles upon which the courts previously 
 acted, in giving relief to the sheriff in the case of adverse 
 claims (n), are still applied. 
 
 No action need be pending against the sheriff, to entitle him 
 to apply for relief; but there must be a bond jide claim actually 
 made, to warrant the application (o). Notice of a lien will justify 
 the application (p). But a distress for rent (*/), or a claim 
 arising out of proceedings in equity (r), will not suffice. Notice 
 of other writs will not entitle the sheriff to relief (s) ; but the 
 court may relieve him where it is doubtful which writ is en- 
 titled to precedence (t). The court will not interfere against a 
 naked claim by the defendant's partner ; but if the whole pro- 
 perty in the goods be claimed, it will (ii). So mere notice of a 
 fiat in bankruptcy, without a claim by the assignees, will not 
 entitle the sheriff to relief(a;). The sheriff is not entitled to 
 relief, unless he has actually seized or is in possession of the 
 goods (?/); but it is immaterial in whose possession the goods 
 were when seized by the sheriff (2;). 
 
 The sheriff must come promptly to the court after he has 
 notice of the claim (a), unless the delay can be satisfactorily 
 
 (0 Smith I'. Wheeler, 3 Dowl. 431. (m) Holmes v. Mentze, 4 Ad. & 
 
 (m) Shortridger. Young, 12 M. & Ell. 127; 5 N. & M. 563; 4 Dowl. 
 
 W. 5 ; see Harrison v. Wright, 13 M. 300. 
 
 & W.816. (x) Bentley v. Hook, 2 C. & M. 
 
 (n) Ante, 2Z0. 426; 2 Dowl. 339; see Barker v. 
 
 (0) Isaac V. Spilsbury, 10 Bing. 3; Phipson, 3 Dowl. 590. 
 
 3 M. & Scott, 341 ; 2 Dowl. 211 ; (y) Holton v. Guutrip, 3 M. & W. 
 
 Slowman v. Back, 3 B. & Ad. 103; 145; 6 Dowl. 130. 
 
 Fenwick v. Laycock,2 Q. B. 111. (z) Allen v. Gibson, 2 Dowl. 292. 
 
 (7;) Ford D. Bayntun, 1 Dowl. 357. (a) Devereux v. John, 1 Dowl. 
 
 (q) Haythorn v. Bush, 2 Dowl. 548; Cook «. Allen, 1 C.& M. 542; 
 
 641. 2 Dowl. 1 I ; Dixon v. Ensell, 2 Dowl. 
 
 (r) Sturgess v. Claude, 1 Dowl. 621; Skipper i;. Lane, 4 M. & Scott, 
 
 505; see Putnevv. Tring, SM.cSc W. 283; 2 Dowl. 784; Kidgway D.Fisher, 
 
 425; Roach d." Wright, 8 M. & W. 3 Dowl. 567; Barker v. Phipson, 3 
 
 155. Dowl. 590; Brackenbury v. Laurie, 3 
 
 (s) Salmon v. James, 1 Dowl. 369. Dowl. 180 ; Beale v. Overton, 2 M. 
 
 (0 Day V. Waldock, 1 Dowl. 523; & W. 534 ; 5 Dowl. 599. 
 sed qutere.
 
 INTERPLEADER. 287 
 
 SECT. VI. 
 
 accounted for. He must apply before the goods are sold, and chap 
 the produce paid over, whether at that time he knew of the 
 claim or not {b) ; and if he deliver the goods (or, as it seems, 
 any part of them) to the claimant, he thereby precludes himself 
 from relief under the act (c). In prudence, the sheriff should 
 inquire into the nature of the claims before he applies to the 
 court (d) ; but he need not ask the parties for an indemnity (e), 
 nor, if offered, is he bound to accept it(f). Indeed, he must 
 be indifferent between the parties, and therefore if he take an 
 indemnity, or either himself or his under-sheriff be the execution 
 creditor, or the partner of the execution creditor, the court will 
 not relieve him (g). It is not however necessary, as it was at 
 one time supposed, for the sheriff to deny collusion (A). 
 
 No person can appear before the court or judge on the hear- 
 ing who is not a party to the rule (i) ; but if a new claim be 
 made after the rule nisi is granted, the sheriff may make such 
 claimant a party to the rule (A;). It seems that a foreigner re- 
 siding abroad cannot be compelled to come in under this act (/), 
 neither can the Crown (»i). But the sheriff may be relieved, 
 though the claimant is an infant (n). 
 
 If the sheriff does not appear to support his rule, it will be 
 discharged with costs. If the claimant does not appear, he will 
 be barred (o) from proceeding against the sheriff, and must pay 
 the costs of the execution creditor, but not of the sheriff (j)). 
 If the execution creditor does not appear, he likewise will be 
 
 (b) Anderson v. Calloway, 1 C. & Boond v. Woodhall, 2 C. M. & R. 
 M. 182; 1 Dowl. 636; 3 Tyr. 237; 604; 4 Dowl. 351. 
 Scott V. Lewis, 2 C. M. & R, 289 ; 4 (i) Clarke v. Lord, 2 Dowl. 55 ; 
 Dowl. 259; Ireland v. Bushell, 5 but see Ibbotsonr. Chaadler, 9 Dowl. 
 Dowl. 147. 250. 
 
 (c) Braine v. Hunt, 2 C. & M. (k) Kirk v. Clarke, 4 Dowl. 363. 
 418 ; 2 Dowl. 391. (I) Patorni v. Campbell, 12 M. & 
 
 (d) Bishop V. Hinxman, 2 Dowl. W. 277. 
 166; In re Sheriff of Oxfordshire, 6 (m) Candy v, Maugham, 7 Scott, 
 Dowl. 136. N. R. 402. 
 
 (e) Cropley V. Ebers, 1 Harr. & W. (n) Claridge v. Collins, 7 Dowl. 
 216. 698. 
 
 (/) Levy V. Champneys, 2 Dowl. (o) 1 & 2 Will. 4, c. 58, s. 3. 
 
 454. Ip) Bowdler v. Smith, 1 Dowl. 
 
 (g) Dudden v. Long, 1 ScoU, 281 ; 417 ; Lewis v. Eicke, 2 C. & M. 32 1 ; 
 
 1 Bing. N. C. 299 ; 3 Dowl, 139 ; 2 Dowl. 337 ; Jones v. Lewis, 2 M. 
 
 Ostler V. Bower, 4 Dowl. 605; Pa- & W. 204 ; see Perkins v. Burton, 2 
 
 torni V. Campbell, 12 M. & W. 277 ; Dowl. 108; 3 Tyr. 51 ; Philby v. 
 
 Cox V. Balne, 2 Dowl. & L. 719. Eicke, 2 Dowl. 222 ; Oram v. Shel- 
 
 (h) Donniger v. Hinxman, 2 Dowl. don, 1 Scott, 697j 3 Dowl. 640. 
 424; Dobbins i>. Green, 2 Dowl. 509;
 
 :o8 SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. barred ((7), and must pay to the adverse claimant the costs of the 
 ^'^^'^' ^^' application (r) ; but not to the sherifF(s). If the sheriff has 
 sold, he will in that case have to pay the proceeds to the claim- 
 ant (<) ; if he has not sold, he must withdraw from the posses- 
 sion (?/). In this case the sheriff will not be entitled to his 
 poundage, for the execution should not have been levied ; but 
 if neither party appears, each, as against the sheriff, will be 
 barred, and the sheriff may levy his poundage and expenses be- 
 fore abandoning the remainder of the levy(x'). If all the parties 
 appear (and for this purpose it is not necessary to take office copies 
 of the affidavit on which this rule nisi was obtained (y) ), the 
 court or a judge cannot, without consent of the parties, deter- 
 mine the right, but must direct one or more issues for that pur- 
 pose (z). Although no order can be finally made, the claimant 
 must state the nature and particulars of his claim (a) ; but the 
 execution creditor may rely upon his judgment without more (6). 
 The court or judge has power to make such order as to costs as 
 may appear to them or him to be just and reasonable (c) ; if the 
 application be made to a judge at chambers, a judge at chambers 
 only has original jurisdiction as to the costs (c?), his order being 
 subject to review by the court in hanc{e). 
 
 If, after it has been directed, the claimant abandons the issue, 
 the court will compel him to pay the costs of the execution cre- 
 ditor up to the time of his abandoning it (/) ; and also the costs 
 incurred in enforcing such payment {g). He will also be liable 
 to the sheriff's costs incurred subsequently to the order for the 
 issue. So, if the execution creditor decline to proceed, he will 
 be liable to the costs of the claimant, and the sheriff's costs 
 subsequent to the rule {li). If the issue is tried, the successful 
 
 (q) ford V. Dilly, 5 B. & Ad. 885; to the extent of the issue, see Abbott 
 
 2 N. & M. 662. " V. Richards, 15 M & W. 194. 
 
 (r) Tomlinson v. Done, I Harr. & (a) Powell v. Lock, 4 N. & M. 852. 
 
 W. 123. (6) Angus v. Wootton, 3 M.& W. 
 
 (s) Jhid. ; Beswick v. Thomas, 5 310. 
 
 Dowi. 458. (f) 1 & 2 Will, 4, c. 58, s. 1. 
 
 (0 Gethin V. Wilks, 2 Dowl. 189. ((/) Burgh v. Schofield, 9 M. & 
 
 (» ) Field V. Cope, 2 C. & J. 480 ; W. 478. 
 
 1 Dowl. 567. (e) Teggin v. Langford, 10 M. & 
 
 (:r) Eveleigh v. Salsbury, 3 Scott, W. 556. 
 
 674; 5 Dowl. 369; 3 Bing. N. C. (/) Wells t;. Hopkins, 3 Dowl. 346. 
 
 298. ig) Scales v. Sargeson, 3 Dowl. 707. 
 
 (y) Mason v. Redshaw, 2 Dowl. ( h) Dobbs v. Humphreys, 1 Scott, 
 
 595. 325 ; 3 Dowl. 377 ; 1 Bing. N. C. 
 
 (s) 1 & 2 Will. 4, c. 58, s. 1 ; 412. 
 Curlewis v. Pocock, 5 Dowl. 38 1. As
 
 IN CASE OF ADVERSE CLAIMS. 
 
 289 
 
 SECT. VI. 
 
 party will be entitled to the costs of the trial and also of the chap. x. 
 
 rule. If, by order of the court, the sheriff has kept possession 
 
 of the goods, or sold them, or done any other act for the benefit 
 
 of the parties, he will be entitled to the costs so incurred from 
 
 the unsuccessful party (i). If the execution creditor succeed, 
 
 the sheriff is entitled to poundage, otherwise he is not (A;). 
 
 Section VII. 
 Fieri Facias, Sheriff's Return to. 
 The sl^erifF is not obliged, unless ruled so to do, to make a Sheriff, when 
 
 «„.^. r • • rr>- • • n • Obliged to re- 
 
 return to a writ oi Jieri jacins, for it is a surhcient justification tumajE./o. 
 
 to the sheriff, in an action of trespass for taking the defendant's 
 
 goods, to plead that he took them by virtue of 2ifi.fa. directed 
 
 to him, w'ithout showing it returned (Z). But either the plaintiff 
 
 or the defendant may rule the sheriff to return the writ(m), and 
 
 if he neglect to make his return before the expiration of the 
 
 rule, the court will grant an attachment against him («). Either 
 
 party may rule the sheriff to return the writ, although there has 
 
 been no sale, but the defendant has paid the money (o). But 
 
 where there has been a compromise between the parties, neither 
 
 the plaintiff nor the defendant can rule the sheriff to return the 
 
 writ (2:)). Where the plaintiff has appointed a special bailiff (y), 
 
 or where there is any collusion between the sheriff's officer 
 
 and the plaintiff, or his attorney (r), the plaintiff cannot rule the 
 
 sheriff to return the writ; and if the sheriff be ruled to return 
 
 the writ under such circumstances^ he should move to set aside 
 
 th3 rule (s). 
 
 (i) Armltage v. Forster, 1 Harr.& (o) Edmunds d. Watson, 2 Marsh. 
 
 W. 208 ; Bland i>. Delano, 6 Dowl. 330 ; 7 Taunt. 5, S. C. 
 
 293. (p) Alchin v. Wells, 5 T. R. 470 j 
 
 (A;) Barker v. Dynes, 1 Dowl. 169. Hedges v. Jordan, 5 Dowl. 6. 
 
 (0 Cheaseley v. Barnes, 10 East, (g) Pallister i'. Pallister, 1 Chit. 
 
 73. Rep. 614, n. ; Porter v. Viner, 1 
 
 (m) France v. Clarkson, 2 Dowl. Chit. Rep. 613, n. 
 
 532 ; but in the case of a ca. sa. see (r) Ruston r. Hatfield, 3 Bar. & 
 
 Williams V. Webb, 2 Dowl. N. S. Aid. 204; 1 Chit. Rep. 613. S. C. 
 
 904 ; ante, 81. (s) De Moranda i'. Dunkin, 4 T. R. 
 
 («) As to the rule, and at what 119; see also Hamilton v. Dalziel, 2 
 
 time the attachment may be moved Black. Rep. 952 ; Alchin v. Wells, 5 
 
 for, see ante, 81 et seq. T. R. 470.
 
 UyU SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. The Court of Common Pleas, however, refused to set aside 
 SECT, vii. gjj^i^ ^ ^^j|g^ where the object was to have a return oi" nulla bona, 
 
 in order to issue a ca. sa., the plaintiff undertaking to pay the 
 costs and to bring no action for a false return (i). The sheriff 
 must either return nulla bona or bona, and it is not a good 
 return to say that the defendant's premises are so barricaded 
 and fastened up as to be inaccessible, by reason of which the 
 sheriff is unable to say whether the defendant has any goods 
 whereon a levy can be made (u). 
 
 In making a return to a Ji. fa., a reasonable degree of cer- 
 tainty is sufficient, and therefore a return, " I have caused to be 
 made of the goods of A. B. 221. 2s., out of which I have paid 
 \\l. 5s. for rent due for the premises wherein the said goods 
 and chattels were taken in execution," &c. was held good, inas- 
 much as the return as against the sheriff must be understood to 
 be that the rent was due at the time of the seizure (v). 
 
 Where several writs are delivered to the sheriff at the same 
 moment, the court will not compel the plaintiffs, or their attor- 
 ney, to direct in what priority they are to be executed, so as to 
 enable the sheriff to make his return with certainty (x). 
 Nulla bona. If the defendant has no goods in the county into which the 
 writ is directed, or if the sheriff is not informed of any that he 
 has, lie should return nulla bona (y) ; and where there is a dis- 
 pute whether the goods belong to the defendant or to a third 
 person, the proper course is for the sheriff to apply to the 
 court under the Interpleader Act (sj. Nulla bona means no 
 goods liable to the plaintiff's execution, and therefore it is 
 the proper return to make where goods seized under a war- 
 rant are insufficient to satisfy a f. fa. previously lodged (a), or 
 where the goods seized are swallowed up by payment of a 
 year's rent to the landlord, under the statute of Anne (6). If 
 goods seized under a f. fa. are claimed by a third party, upon 
 
 (0 Harding v. Holder, 9 Dowl. 2 Dowl. N. S. 377. 
 
 659; 2 Man. & G. 914, S. C. (y) See forms, post. Appendix. 
 
 (w) Munk V. Cass, 9 Dowl. 333. (s) Ante, 282 et seq. 
 
 (v) Reynolds V. Barford, 2 Dowl. (a) Heenani'. Evans, 3Man. & G. 
 
 & L. 327 ; 7 Man. & G. 449 ; see 398 ; 4 Scott. N. R. 2 ; 1 Dowl. N. S. 
 
 also Wintle y. Freeman, 11 Ad. & E. 204, S.C; Drewei;.Lainson, 11 Ad. 
 
 547, per Patteson, J., " the sheriff, & E. 529. 
 
 in making his return, is not bound (b) Wintle i". Freeman, 11 Ad & 
 
 by the rules of special pleading." E. 539. 
 
 (x) Ashworlh v. Earl of Uxbridge,
 
 291 
 
 SECT. VII. 
 
 which an interpleader order is made directing an issue to be chap 
 tried, and afterwards the plaintiff directs the sheriff to deliver 
 up the goods to the claimant, it is not sufficient to return those 
 facts, without also returning that the defendant had no other 
 goods out of which the execution could be satisfied (c). 
 
 If the sheriff has seized and sold goods to the amount of the Fieri fed. 
 debt, he must make his return, that he has levied, &c., and that 
 he has the money ready ; if the goods sold are not sufficient to 
 satisfy the whole debt, he should return _)?eri feci as to so much, 
 and Jiulla hona as to the residue (rf). It is sufficient to make the 
 return in general terms, for the courts will not compel the sheriff 
 to specify in his return to a fieri facias the particular goods 
 taken, and the sum for which each article is sold (e). It is the 
 duty of the sheriff, in executing a writ offi.fa., to seize all the 
 goods of the debtor within his bailiwick, or at least sufficient to 
 satisfy the writ ; therefore to a declaration against the sheriff 
 for neglecting to levy, and falsely returning goods in hand for 
 want of buyers, a plea that the plaintiff had directed him to 
 withdraw from the possession of certain goods, and that he 
 had seized certain others, which remained in his hands unsold 
 for want of buyers, was held bad, because both those propo- 
 sitions might be true, and yet there might have been other 
 goods out of which the sheriff might have levied (/). If the 
 sheriff, having a full opportunity of ascertaining the facts which 
 would enable him to make such a return as would protect him, 
 returns fieri feci, he is bound by his return (g). The sheriff 
 cannot return generally that he has seized under two writs, e. g. 
 "by virtue of this writ, and of another writ offi.fa. &c. I have 
 seized, &c. (h)," but he may return that he has seized by virtue 
 of several previous writs, according to the priority thereof (i). 
 And he ought to show the amount due on each of the earlier 
 writs, and the value of the goods seized (/c). 
 
 If the sheriff take goods, but cannot sell them, he should re- Gootisinhand 
 
 for want of 
 biijers. 
 
 (c) Cleaveri;. Fisher, 2 Dowl.N.S. (h) Wintle v. Lord Chetwynd, 7 
 293. Dovvl. 554, explained /)er Patteson, J., 
 
 (d) See forms, Appendix, ch. 10, in Wintle v. Freeman, 11 A. ik E. 548. 
 s. 7. (i) Chambers v. Coleman, 9 Dowi. 
 
 (e) Willett V. Sparrow, 6 Taunt. 588 ; and see a form of such a relura 
 576 ; 2 Marsh. 293, S. C. same case. 
 
 (/) Pitcher v. King, 5 Q, B.162. (/c) Wintle u. Freeman, 11 Ad. &E. 
 
 Ig) Field V. Smith, 2 M. & W. 548, Patieson, J. 
 388; 5 Dowl. 735, S. C. 
 
 U 2
 
 292 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. turn that he has taken goods of the defendant, which remain in 
 ' his hands imsold for want of buyers. This return is proper 
 
 where tlie sheriff cannot get a fair price for the goods (Z), for in 
 such case he should wait for a venditioni exponas. The return 
 to a writ o{ fieri facias, that the sheriff lias seized goods, which 
 remain unsold for want of buyers, must state the goods to be of 
 a certain value {m) ; the value stated is not material, for he may 
 sell them on a venditioni exponas for less, and the judgment is 
 only satisfied to the amount for which they are sold, if less than 
 the value returned by the sherifl['(?i). But it is otherwise if 
 the goods, after such a return, are rescued from or lost by the 
 sheriff; in such case he is answerable to the plaintiff for the 
 value returned (o). After such a return, the plaintiff may sue 
 out a writ of venditioni exponas, reciting the former writ and 
 return, and commanding the sheriff to expose the goods to sale, 
 and have the monies arising therefrom in the court at the return 
 of it ; or if the goods are not taken to the value of the whole, 
 the plaintiff may have a venditioni exponas for part, and b. fieri 
 facias for the residue, in the same writ. In a recent case, the 
 Court of Common Pleas would not grant an attachment against 
 the sheriff for returning to a writ of venditioni exponas that the 
 goods remained unsold for want of buyers (p). 
 Supersedeas. If a writ of error be delivered to the sheriff after he has seized 
 goods, he must still proceed, but if a writ of error be allowed 
 before he has taken the goods of the defendant, he should make 
 his return accordingly ; for in a recent case, in an action against 
 a sheriff for a false return of nulla bona, it appeared that a writ 
 of error was allowed on the same day that the fi. fa. had issued: 
 the court held that the plaintiff was entitled to a verdict and 
 nominal damages, for he should have returned the supersedeas 
 and not nulla bona, and the court would have relieved him(5'). 
 
 (0 Keightley v. Birch, 3 Camp. Withers, 6 Mod. 293; 2 Lord Ray m. 
 
 521. But see IStarkie, N.P. C. 41. 107, S. C. 
 
 (m) Wintle i). LordChetwynd.sujj.; (p) Leaders. Davis, 1 Bos. & Pul. 
 
 Chambers D.Coleman, sttp.; Barton 359; Anon, 2 Chitt. Rep. 390. Sed 
 
 V. Gill, 12 M. & W. 315; 1 Dowl. & vide 6 Mod. 299 ; Cowp. 406. 
 L. 593. (q) C leghorn v. Desanges, 3 Moore, 
 
 (ji) Cro. Jac. 515; Godb. 276; 83. If a sheriff execute a >"./a. after 
 
 but in Rex v. Bird, 2 Show. 87, it is a writ of error is allowed, but before 
 
 said that if the sheriff value them too notice, it is not a contempt ; Cotton v. 
 
 high, if nobody will buy them at that Dainty, 1 Vent. 29 ; 2 Keb. 506, 
 
 rate, the sheriff must. 508, S. C. If the sheriff execute a 
 
 (o) Per Molt, C. J., in Clerk v. Ji.J'a. after notice of the allowance of
 
 RETURN. 
 
 To a li. fa. without a non omittas clause, if the defendant's chap. x. 
 goods are entirely in a liberty, the bailiff whereof hath the return 
 
 of writs, mandavi balUvo, together with the answer of the bailiff, baiiivo. 
 if he has made any, or that he has made no answer, according 
 to the fact, is a good return (r). If the sheriff returns mandavi 
 hallivo et nullum dedit responsum, the bailiff should be then ruled 
 to return the writ (s). 
 
 Rescue is not a good return to afi.fa., for the sheriff is bound Rescne. 
 to raise the posse comitatus (t). Indeed, if a sheriff return that 
 he has levied goods to a certain amount, and that they were 
 rescued from him, he will be liable to the whole amount of the 
 value returned, although above their real value (f<). 
 
 To a. fieri facias against an executor de bonis testatoris, if the Return to a 
 sheriff cannot find any goods of the testator in the hands of the an executor, 
 executor, he may return mdla bona; and upon that, the plaintiff 
 may proceed by scire fieri inquiry: this writ, after reciting the 
 fieri facias, and the sheriff's return of nulla bona, suggests that 
 the executor had sold and converted the goods of the testator to 
 the value of the debt and damages recovered, and commands the 
 sheriff to levy the debt and damages of the goods of the testator 
 in the hands of the executor, if they could be levied thereof; 
 but if it should appear to him, by inquisition of a jury, that the 
 executor had wasted the goods of the testator, then the sheriff 
 is to warn the executor to appear, &c. Or, on the sheriff's 
 return of nulla bona, the plaintiff may bring an action of debt 
 on the judgment, suggesting a devastavit (^x). 
 
 But if the sheriff cannot find assets, he may, if he please, re- 
 turn a devastavit as well as 7iiilla bona to the writ oi fieri facias 
 de bonis testatoris, for the^eri inquiry is only for his security (y). 
 And the sheriff seems to run no great risk by so doing ; for 
 the judgment, and no assets to be found, will be sufficient evi- 
 dence of a devastavit, in an action against him for a false re- 
 
 a writ of error, he is liable in tres- 198, S. C; 1 Roll. Rep. 388, 440. 
 
 pass; Belshaw i=. Marshall, 4 B. & (u) Per Holt, C. J. in Clerk v. 
 
 Adol. 336; I N. & iVl. 689. S. C. Withers, 6 Mod. 293; 2 Ld. Raym. 
 
 Goods seized before a supersedeas may 1075, S. C. 
 
 be sold afieiwards; Cro. Eliz. 597. (x) See note, 1 Saund. 219 a. See 
 
 (r) See aiife, 98. also Ward v. Thomas, 2 Dowl. 87; 
 
 (s) See Boolhmani). Earl of Surrey, 1 C. & M. 537, S. C. 
 
 2T. R. 10; 27Hen. 8, c. 24. ' (y) Rock D.Leighton, 1 Balk. 310; 
 
 (t) Midmayy. Smith, 2 Saund. 343; 1 Ld. Raym. 590, S. C. ; Com. Rep. 
 
 2 Keb. 789, 821, S. C. See also May 87, cited in 3 T. R. 692. 
 V. Proby, Cro. Jac. 419; 3 Bulstr.
 
 294 
 
 SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. 
 SECT. VII. 
 
 Against a 
 clergyman. 
 
 turn (;::;). And whetlier the devastavit be returned by the sheriff 
 - to the ^eri facias, or found by the inquisition on the Jieri inquiry, 
 the return is not conclusive, but the executor may taverse the 
 devastavit (a). 
 
 On aji.fa. against a beneficed clergyman, if he have no goods, 
 the sheriff, in addition to a return of nulla bona, should return 
 that the defendant is a beneficed clerk, and has no lay fee in 
 his bailiwick (6), upon which a Jieri or levari facias goes to the 
 bishop of the diocese where the benefice, is, commanding him to 
 levy the sum recovered, of the ecclesiastical goods of the de- 
 fendant (c). The levari facias does not begin to operate until 
 the writ of sequestration is published (t/). As against the de- 
 fendant, the property is bound from the time when the seques- 
 trator is appointed (e). It is not necessary to publish the writ 
 of sequestration before the return day of the levari facias (/). 
 The bishop is liable to be ruled to return this writ (g), or to an 
 action for a false return thereto (h). This writ is a continuing 
 execution ; and the bishop should take all the profits of the 
 benefice up to the time when the writ is actually returned, 
 although after the return-day of the writ(i). To this writ the 
 bishop must return feri or levari feci, and not sequestrari feci (k). 
 The bishop may be ruled from time to time to return what he 
 has levied (/) ; but he cannot be ruled to make a return of what 
 has been levied before he came into oflSce (m) : and when a 
 bishop grants a sequestration against the effects of a clergy- 
 man within his diocese, he stands in the same situation as a 
 sheriff", and the court has the same power over him as over the 
 sheriff" (n). A defendant has no right to have the levari facias 
 
 (s) Rockv.Leighton, 1 Salk.310; 
 1 Ld. Raym. 590, S. C. ; Com. Rep. 
 87, cited in 3 T. R. 692; 1 Saund. 
 219 c. 
 
 (a) Gibson ?;. Brook, Cro.Eliz. 859; 
 Mounson v. Bourne, Sir W. Jones, 418. 
 
 (b) See this return, Append, c. 10, 
 s. 7. 
 
 (c) Bac. Abr. Execution (G) 6. 
 See form, Tidd's Forms, 436 ; Arch- 
 bold's Forms, 514. 
 
 (d) Wait V. Bishop, 3 Dowl. 234 ; 
 1 C. M. & R. 507, S. C. 
 
 (e) Bennett v. Apperley, 6 B & C. 
 630, per Barley, J. 
 
 (/) Ibid. 
 
 {g) Lanquily. Jones, Stra. 87; Rex 
 
 V. Bishop of London, 1 Dowl. & Ry. 
 486. 
 
 (A) Pickard D. Paiton, 1 Sid. 276 ; 
 Moseley v. Warburton, 1 Saik. 320; 
 1 Ld. Kaym.265, S. C. 
 
 (i) Marsh v. Fawcett, 2 H. Blac. 
 582. 
 
 (k) See 1 Mod. 257 ; 2 Mod, 259, 
 and Tidd's Prac. 1063, 1064, 8th ed. 
 for the mode in which the bishop is to 
 execute this writ. 
 
 (/) See 2 H. Blac. 583. 
 
 (m) Phillips V, Berkeley, 5 Dowl. 
 279. 
 
 (n) Rex V. Bishop of London, 1 
 Dowl. & Ry. 486.
 
 RETURN. 
 
 295 
 
 returned, but he may have a return of the amount of profits chap. x. 
 
 received by the sequestrator (r). The bishop's return should, ' '. 
 
 it seems, be verified, and it will not be sufficient merely to set 
 forth the debtor and creditor account of the sequestrator (*). 
 The bishop should not return the writ of sequestration until 
 after the execution is fully satisfied ; if he returns it previously, 
 the court will direct it to be taken off the file and sent back to 
 the bishop in order that he may certify what he has done under 
 it, and take the return off the writ(i). The sequestrator of a 
 benefice is the mere agent of the bisho]i, and has not himself 
 any such interest as will enable him to maintain an action at 
 law against a pei'son who wrongfully receives the profits of the 
 benefice (m). 
 
 Section VIII. 
 Actions against the Sheriff for Breach of Duty. 
 If the sheriff return _^m/bd, the plaintiff may proceed for the Remedy for 
 
 1 1 • rr- ■ 1 1 • n % 1 /^ 11 the amount 
 
 money agamst the sheriii, either by action of debt, founded on levied, 
 the return (a-), or by action for money had and received (//), or 
 by rule of court (2). Although no return be made, an action 
 for money had and received will lie against the sheriff for the 
 amount levied («). In bringing an action for money had and 
 received, to recover money levied on ?ifi.fa., it is not necessary 
 to prove a demand of the money before action brought (&). 
 Although if the plaintiff commence an action against the sheriff 
 for money levied by him, without previously demanding the 
 same, the court will stay proceedings on payment of that sum 
 
 (r) llart w. Vollans, 1 Dowl. 434. 2 Mod. 212; 2 Show. 79, S. C; 1 
 
 (s) ElchiD V. Hopkins, 7 Dowl. Mod. 245; Freem. 236. 
 
 146. (v) Dale v. Birch, 3 Camp. 347. 
 
 (t) Aldeiton v. St. Aubjn, 6 M. If the sheriff claim by his return to 
 
 & VV. 150. retain money, to which he is not en- 
 
 (11) Harding v. Hall, 10 M. & W. titled, the plaintiff may recover that 
 
 42. money from the sheriff in such an 
 
 {x) Parkinson t). Gifford, Cro. Car, action; Longvile v. Jones, 1 Stark. 
 
 539 ; Speake v. Richards, Hob. 206. 345. 
 
 In an action of debt founded on the (s) See Stockdale v. Hansard, 11 
 
 sheriff's return to a fieri facias, nil Ad. & E. 253. 
 
 debet is not a good plea, for the return (u) Parkinson v. Gifford, Cro. Car. 
 
 is parcel of the record ; 2 Saund. 344, 539 ; Sir W, Jones, 430, S. C. ; Mor- 
 
 n. (2;. So, for the same reason, the land v. Pellatt, 8 B. & C. 722. 
 
 Statute of Limitations is not a good (6) Dale v. Birch, 3 Camp. 347. 
 plea to that action ; Cockram v. Welby,
 
 296 
 
 SIIEUIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 
 
 CHAP. X. witliout costs ; for the court will always protect the sheriff 
 SECT. VIII. ^y|^gj.g jjg jjj,jg ^yjfjj „QQf\ faith Cc). If the assignees of the de- 
 fendant, who has become a bankrupt, claim the money of the 
 sheriff, it is competent for him, in an action brought by the 
 plaintiff for the money, to show that the assignees are entitled 
 to it(<^/); and he may, in an action of trover, set up such defence 
 under a plea of not possessed (e). 
 
 It seems that the application for a rule calling on the sheriff 
 to pay over the amount levied should be made to the court, and 
 not to a judge at chambers (/). 
 
 It would not, it seems, in any case be an answer to a rule 
 nisi, for paying over the money levied, to say that a superior force 
 had prevented the sheriff from bringing into court money which 
 he had levied (g) ; and it has been held that it is no answer to 
 such a rule to say that the House of Commons, by resolutions 
 subsequent to the granting of the rule nisi, declared the levy 
 to be a contempt of the privilege of the House, and ordered 
 the sheriff to refund the money levied to the defendant, and 
 committed the sheriff for contempt (A). Nor would the pen- 
 dency of a conflicting rule in another court, whereby the sheriff 
 was ordered to retain the money, and to show cause why he 
 should not pay it over to a third party, e. g. to the provisional 
 assignee of an insolvent, afford any answer to such a rule, 
 because the court, in directing the sheriff to pay the amount of 
 the levy over to the plaintiff, would take care to protect the 
 interests of the parties who might prove to be really inter- 
 ested (i). 
 
 Where money was in the hands of the accountant-general in 
 bankruptcy, and the sheriffs of London returned to an extent 
 that they had seized the amount directed to be levied into the 
 hands of the queen, the court made absolute a rule for paying 
 over the money, and refused to make the accountant-general a 
 party to the rule (k) ; but the court afterwards discharged the 
 rule and allowed the sheriffs to amend their return, it appearing 
 
 (c) Jeflferies v. Sheppard, 2 Bar.& (/) See per Patteson, J., Stock- 
 Aid. 696. See also 3 Camp. 347. dale v. Hansard, 11 Ad. & E. 263. 
 
 (d) See 6 M. & Sel. 42 ; 2 Camp, (g) Stockdale v. Hansard, 1 1 Ad. 
 452; 6 Taunt. 490; 2 Marsh. 186, & E. 253. 
 
 S. C. (h) Ibid. 
 
 (e) Leake v. Loveday, 4 M. & G. ((' ) Ibid. 
 
 972. (k) Reg. V. Austin, 1 Dowl. N. S. 
 
 666.
 
 ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 297 
 
 that the Court of Review had refused to order the accountant- chap, x. 
 general to pay over the money to the sheriffs (Z). If the sheriff sect, vm. 
 disobeys the rule for paying over the money, an attachment will 
 lie against him, but the rule for such attachment will be nisi 
 only in the first instance (w). 
 
 It will be no answer to a rule nisi for an attachment to show 
 that the sheriff is in personal confinement, and cannot obey the 
 rule, except by directing his officers to do so, who, if they 
 obeyed him, would probably incur imprisonment themselves (?i). 
 But although the sheriff has returned that he has levied the 
 debt, yet the courts will not grant a rule for the sheriff to pay 
 over the money levied, if it appear there has been any collusion 
 between the plaintiff and the officer (o). In a recent case, 
 where the money had been paid to the assignees of the defend- 
 ant, who had become bankrupt, and the plaintiff, knowing of 
 such payment, had lain by for some time, without making any 
 objection to it, the Court of Common Pleas refused to grant a 
 rule on the sheriff to pay over the money to the plaintiff (p). 
 And the court will not grant a rule to pay over the proceeds of 
 a levy to a bond fide execution creditor, upon the ground that 
 the levy was made under afi.fa. issued for the fraudulent pur- 
 pose of defeating the execution of such bond fide creditor (^r). 
 
 If the return of the sheriff be false, an action on the case ^^.^\^^ return : 
 may be maintained against him at the suit of the person dam- ^uchTc'iton, 
 nified by such false return (r). But this action will not lie unless *''"• 
 actual damage occurs to the plaintiff (*). Or the sheriff may 
 be amerced for such false return, according to an ordinance 
 against sheriffs (/). But he is not liable to an action until he 
 has made his return (?<). Nor is he liable to an action for a 
 false return to 2t.fi. fa. issued out of his county court (a;). The 
 court will not try the truth or falsity of a return upon affida- 
 
 (/) Reg. V. Austin, 10 M. & W. (9) Barber v. Mitchell, 2 Dowl. 
 
 188 ; 2 Dowl, N. S, 468, 574, 
 
 (to) Hatfield i;, Hatherfield, 1 Dowl, (r) Cora, Dig, Retorn (F2). 
 
 & L. 809. (s) Wylie v. Birch, 4 Q. B. 566. 
 
 (rt) Stockdale v. Hansard, 11 Ad. (f) Com. Dig, Retorn (F2), citing 
 
 &E. 269, East, 272 a. By stat. 28 Edw, 1, 
 
 (0) Ruston V. Hatfield, 3 Bar. & c. 16. 
 
 Aid. 204: 1 Chit, Rep. 613, S. C. (u) Moreland r. Leigh, 1 Stark. 
 
 See also Porter v. Viner, xh. n.; Pal- N. P, C, 388, 
 
 lister V. Pallister, xh. 614, n. (x) Pitcher v. King, 9 Ad. & E. 
 
 (/)") Tomlinson v. Shynn, 2 Brod. 288. 
 & Bing, 77,
 
 /i98 sheriff's duties in the execution of a fieri facias. 
 
 SECT. VIII. 
 
 CHAP. X. vit(y). IMiiis if the sIierifF return that lie has seized goods 
 which remain in his hands for want of buyers, where a price 
 has been offered for the goods, although not equal to their full 
 value, he is liable to an action for a false return (s). But if, 
 after such a return, the defendant become bankrupt on an act 
 of bankruptcy committed before the seizure, it is competent for 
 the sheriff to show this as an answer to an action for not selling 
 the goods on a venditioni exponas (a) ; but where the sheriff re- 
 turned^en/eci, after having received notice that the defendant 
 had petitioned the Insolvent Court, he was held bound by his 
 return (i). If the sheriff returns that he has levied part of the 
 debt, and that the defendant has no goods whereof the residue 
 can be levied, the creditor, by accepting the amount levied on 
 account of his debt, does not preclude himself from bringing 
 an action for a false return (c). The declaration in an action 
 for a false return must either show special damage to the plain- 
 tiff, or must disclose facts from which the law would necessarily 
 infer such damage (<i). It is no answer to an action for a false 
 return to say that, after the return, the plaintiff brought an 
 action of debt and obtained a judgment on the original judg- 
 ment (e). 
 
 In an action for a false return of nulla bona to a writ of 
 Jieri facias, the sheriff cannot give in evidence, even in mitiga- 
 tion of damages, an inquisition held by him to inquire whether 
 the property in the goods be in the defendant or not(/). If the 
 sheriff make a return of 7mlla bona, after having taken goods as 
 the goods of the defendant in execution, a person who claims 
 property in the goods, and who has taken them out of the hands 
 of the sheriff, is a competent witness, in an action against the 
 sheriff for a false return, to prove his property in the goods ; 
 for the sheriff, after his return of nulla bona, cannot maintain 
 an action against him, having disclaimed all interest in the goods, 
 and being precluded by his return (g-). If the sheriff return to 
 
 (y) Goubot V. De Crouy, 2 Dowl. (c) Holmes v. Clifton, 10 A. & E. 
 
 86. 673, overruling Beynon v. Garrat, 1 
 
 (s) Barnard v. Leigh, 1 Stark. 43. C. & P. 154. 
 
 Sed qucere, et vide Keightley v. Birch, (d) Wylie v. Birch, 4 Q. B. 566. 
 
 3 Camp. 521. (e) Pitcher v. King, 9 Ad. & E. 
 
 (a) Bridges v. Walford, 6 M. & Sel. 288. 
 
 42. (/) Glossop V. Pole, 3 M. & Sel. 
 
 (h) Field v. Smith, 2 M. & W. 175. 
 
 388. (g) Thomas i;.Pearse, 5 Price, 547
 
 ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 299 
 
 SECT. VIII. 
 
 a writ oi fieri facias, that he has levied a certain sum, out of chap 
 which he has paid a part to the landlord of the premises for . 
 arrears of rent, it will be incumbent upon him, in an action 
 against him for a false return, to prove the fact of the rent 
 being in arrear(/i). When the sheriff defends his return of milla 
 bona on the ground that the person against whom the writ 
 issued was the domestic servant of an ambassador of a foreign 
 state, it is competent for the plaintiff to prove the appointment 
 colourable and fraudulent (J). In the declaration in an action 
 for a false return, the judgment and the writ must be stated and 
 proved in evidence, if denied by the pleas. A variance in a 
 material point between the allegation and proof, in either of 
 those particulars, will be fatal. What is held to be a fatal 
 variance in such case has already been considered in treating 
 of the action for an escape (k). Where the declaration bore 
 date after the accession of Queen Victoria, and alleged the 
 recovery of a judgment in the reign of the late king, as appeared 
 by the record " still remaining in the said court of our said 
 lord the king, &c." it was held no variance on motion for judg- 
 ment on production of the record (I). 
 
 The plea of not guilty, since the rule of H. T. 4 Will. 4, 
 puts in issue merely the breach of duty, admitting the matters 
 stated in the inducement to be true, and therefore under such 
 a plea it will not be competent for the defendant to go into 
 evidence to prove the truth of the return. Thus, in an ac- 
 tion against the sheriff for a false return of nulla bona to a 
 writ of ^. fa., after having levied under it, the plea of not 
 guilty puts in issue only the fact of the sheriff having made 
 the levy, and the making the return stated in the declara- 
 tion ; and under such a plea the defendant is not at liberty to 
 show that the goods levied were not the goods of the original 
 
 See also Ward v. Wilkinson, 4 Bar. questions which sheriflTs in the exe- 
 
 & Aid. 410; Bland u. Ansley, 2 N. cution of process must determine at 
 
 R. 331. their own peril. In cases of real dif- 
 
 {h) Keightley r. Birch, 3 Camp. ficulty they may call for an indemnity, 
 
 521. Slight evidence of this fact and the court will enlarge the time for 
 
 would be sufficient in such case on their making their return till an in- 
 
 the part of the sheriff; the landlord demnity be given." Per Lord Ellen- 
 
 himself in such case is not a compe- borough, C.J. Id. ibid. 
 
 tent witness; Id. ibid. {k) See ante, 209. 
 
 (i) Delvalle v. Plomer, 3 Camp. (/) Lewis j;. Alcock, 6 Dovvl. 78. 
 47. " This is one among many other
 
 300 sheriff's duties in the execution of a fieri fa. IAS. 
 
 SECT 
 
 CHAP. X. defendant, because he had become a bankrupt (ni). So where 
 - a declaration against the sheriff for a false return stated the 
 delivery of tlie Ji. fa. to the defendant, and alleged that though 
 there were goods within his bailiwick which he ought to have 
 levied, yet he neglected to levy, and afterwards falsely returned 
 nulla bona, it was held that, under the plea of not guilty, it 
 could not be shown that the execution debtor had assigned over 
 his goods to a third party, because the plea of not guilty only 
 puts in issue the breach of duty ; and the statement of the delivery 
 of the writ to the sheriff, and that there were goods of the debtor 
 within his bailiwick, were mere matters of inducement (?i). 
 
 In an action for a false return of nulla bona, alleging a seizure 
 of the debtor's goods under the writ, under a plea denying that 
 the defendant seized the debtor's goods under the writ, it may 
 be shown that the goods were not the goods of the debtor, but 
 of his assignees (o). To a declaration alleging that the sheriff 
 (the defendant) seized goods of the debtor under a fi. fa. to the 
 value of the amount indorsed thereon, " and then levied the 
 same thereout," but falsely returned nulla bona, a plea traversing 
 the allegation that the sheriff had levied the amount indorsed 
 on the plaintiff's writ, raises the whole question whether the 
 defendant has raised by sale of the goods seized monies appli- 
 cable to the jilaintiff's writ, involving three issues : — 1st, whe- 
 ther the goods were sold at all ; 2nd, whether they were sold 
 under the plaintiff's writ ; and, 3rd, whether the proceeds were 
 applicable to the plaintiff's writ. And therefore, under such 
 a traverse, the defendant may show that the proceeds of the 
 sale of the goods were all applicable to, and were swallowed 
 up by, other writs of execution which had priority over the 
 plaintiff's ; and a plea setting forth such facts specially was 
 held bad, as being argumentative (p ). To a similar decla- 
 ration, under a plea denying that the debtor had any goods 
 within the defendant's bailiwick whereof he could cause to 
 be levied the amount indorsed on the writ, it was held that 
 the defendant was at liberty to show that the proceeds of the 
 
 (m) Wright v. Lainson, 2 M. & W. (o) Wright v. Lainson, 3 M. & W. 
 
 739. 44 ; Rowe v. Ames, 6 M. & W. 747. 
 
 (7i) Lewis V. Alcock, 3 M. & W. (p) Drewe v. Lainson, 11 Ad. & E. 
 
 188; 6 Dovvl. 389, S. C. 529.
 
 ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 
 
 SOI 
 
 goods which were seized under the plaintiff's writ w-ere ex- chap. x. 
 hausted by payment of a year's rent to the landlord under the ' 
 
 statute of Anne, and in part satisfaction of another execution 
 which was entitled to priority over the plaintiff's (q). So where 
 to a similar declaration the defendant pleaded that the defendant 
 did not seize or take in execution any goods of the debtor, or 
 levy thereout the money indorsed modo et forma, it appearing 
 on the trial that the goods seized under the plaintiff's writ were 
 insufficient to satisfy a prior execution delivered to the sheriff, 
 the defendant was held to be entitled to a verdict, notwithstand- 
 ing the plaintiff proved that the goods were seized under a war- 
 rant granted upon his writ (r). In answer to such a defence, 
 the plaintiff may show that such prior execution was founded 
 on a fraudulent judgment, without showing the sheriff to be a 
 party to such fraud (5). 
 
 In an action for neglecting to seize goods under a fi. fa., and 
 returning mdla bona under a plea denying that there were any 
 goods of the debtor within the sheriff's bailiwick modo et forma, 
 it may be shown, that although there were goods of the debtor 
 within the bailiwick, yet that such goods were not applicable to 
 the plaintiff's writ(i). The defendant cannot plead that he 
 did not seize and levy, for such a plea would raise too large an 
 issue, because either a seizure or levy would be sufficient to 
 support the plaintiff's action (m). Where to a ji. fa. the sheriff 
 returned that he had seized goods which remained in his hands 
 for want of buyers, upon which an action was brought as for a 
 false return, the court refused to allow the return to be amended 
 to mdla bona after the sheriff had obtained an order for time 
 to plead on the usual terms (a;). 
 
 Where the declaration discloses a state of facts from which 
 the law would presume damage to the plaintiff, the defendant 
 is at liberty to plead pleas showing that in fact no damage ac- 
 crued to him. Thus where the declaration alleged a seizure 
 and sale under a fi. fa., and a false return that the goods re- 
 mained in defendant's hands for want of buyers, it was held 
 
 (q) Wintle V. Freeman, 1 1 A. & E. (t) Heenan v. Evans, 3 Man. & G. 
 
 539. 398. 
 
 (r) Heenan D. Evans, 3 Man. & G. (m) Stubbs v. Lainson, 1 M. & W. 
 
 398. 728; 5 Dowl. 162, S. C. 
 
 (s) Imiay i'. Magnay, 11 M. & W. (x) Wylie v. Pearson, 1 Dowl. N. 
 
 267 ; 2 Dowl. N. S. 531. S. 807.
 
 302 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. that pleas showing that the ji.fa. was issued on a judgment on 
 ! 1 a warrant of attorney, and that the debtor had become bank- 
 rupt, and alleging such facts as would render the execution in- 
 valid as against his assignees, were good as negativing any damage 
 to the plaintiff from the false return ; and it was also held that 
 such pleas did not amount to the general issue (?/). 
 Wrongful Where the sheriff or his officer, on a ji. fa. against the goods 
 of A., takes the goods of B., the sheriff is subject to an action 
 of trespass (2;). To such an action, under a plea of not pos- 
 sessed, the sheriff may show that the plaintiff took the goods 
 under an assignment by the debtor, fraudulent as against the 
 execution (a). Or if the officer seize the goods of the defend- 
 ant after the return day of the writ (6), or after a supersedeas 
 has been delivered to the undersheriff(c"), or after the sheriff 
 has received orders from the plaintiff not to execute the writ(c?), 
 or if he take them at any place out of his county (e), the sheriff 
 and his officers are liable to an action of trespass. If the sheriff 
 break open the outer door of a house to take the defendant's 
 goods, he is a trespasser (/). For the requisites of a plea of 
 justification by a sheriff, for any thing done by him in exe- 
 cuting a writ of ^. fa., it is sufficient to refer the reader to a 
 former part of this work (^). In an action of trespass against 
 the sheriff for a wrongful seizure of goods, the jury may give 
 what damages they please, and are not bound to the amount for 
 which the goods were afterwards sold (A). 
 Actions by The sheriff, we have seen, has such a special property in 
 goods taken by him upon a fi. fa. as to enable him to maintain 
 trespass or trover against a wrong-doer (?). So, if goods law- 
 fully taken by the sheriff be rescued out of his possession, he 
 
 (y) Wylie v. Birch, 4 Q. B. 566. (rf) Barker v. St, Quintin, 12M.6e 
 
 Qiudre, whether these pleas did not W. 441 ; 1 Dowl. & L. 542, S. C. ; 
 
 amount to an argumentative traverse Hunt u. Hooper, 12 ]M. & W. 672 ; 1 
 
 that the sheriff had sold the goods of Dowl. & L. 628, S. C. -per Parke, B. 
 
 the debtor. (e) Tyler v. Johnson, cited by 
 
 {z) Saunderson D. Baker, 2 Bla. R. Nares, J. in 3 Wils. 317,and in2 Bla. 
 
 832 ; 3 Wils. 309, S. C. See also Rep. 834. 
 
 Laicock's case, Latch, 187. (/) See anie, 75. 
 
 (a) Ashby v. Minelt, 8 Ad. & E. {g) See anie, 122. 
 
 121. Oi) Lockley (>.Pye,8M.& W.133. 
 
 (6) Ellis 1). Jackson, 1 Lev. 143; (i) Wilbraham v. Snow, 2 Saund. 
 
 1 Sid. 229, S. C. ; 1 Keb. 718, 805; 47 ; 1 Vent. 52, S.C. ; 1 Lev. 282 ; 
 
 2 Roll. Abr. 278. 1 Sid. 438, S. P. ; Clerk v. Withers, 
 (c) Prinejj. Allington, Moor, 677, 6 Mod. 292. 
 
 pi. 921.
 
 ACTIONS BY THE SHERIFF. 303 
 
 may bring an action on the case against the rescuers ; but it is chap. x. 
 a good defence to such action, that the goods had been fraudu- sect, vm. 
 lently obtained by the defendant (k). If the sheriff seize and 
 sell the goods of the defendant, and pay the proceeds over to 
 the plaintiff, and the sheriff be afterwards sued in trover by the 
 assignees of the defendant, who had committed an act of bank- 
 ruptcy before the seizure, and a verdict pass against the sheriff, 
 he may maintain an action for money paid against the plaintiff 
 to recover the proceeds of the sale ; but there is no implied 
 contract for the plaintiff to indemnify the sheriff against the 
 costs of that action (l). If in such case the sheriff, after having 
 called upon the plaintiff to defend an action of trover com- 
 menced by the assignees, allow judgment to go by default, it is 
 still open, in an action by the sheriff against the plaintiff, brought 
 to recover back the money paid to him, for the plaintiff to show 
 that the defendant had not become bankrupt (??«). If the sheriff 
 took any indemnity on releasing the goods, or on paying the 
 money to the plaintiff, the sheriff, if he have been damnified, 
 may put such security in suit for his indemnity. 
 
 Where, goods having been seized by the sheriff under afi.fa., 
 the officer, by arrangement between the debtor and the cre- 
 ditor, and without the knowledge of the sheriff, quitted posses- 
 sion upon the understanding that he might return at any time 
 and sell ; and he accordingly, after the lapse of some time, did 
 return, and notice of sale was given ; but before the sale, an- 
 other Ji. fa. at the suit of another creditor was lodged, to which 
 the sheriff returned nulla bona, and paid over the proceeds of 
 the sale to the first execution creditor: it was held that the 
 sheriff, having been compelled to answer in damages for a false 
 return to the second writ, to the amount of the money levied, 
 upon the ground of the officer having quitted possession, as 
 above mentioned, might, in an action for money had and re- 
 ceived, recover back from the first execution creditor the amount 
 
 (fc) Wilsmore v. Earl of Bristol, 1 or not there is an implied promise by 
 
 Barn. & Cress. 514 ; 2 Dowl. & Ry. the sheriff to indemnify a person em- 
 
 755, S. C. ployed by him to conduct the sale of 
 
 (/) Wilson V. Wilner, 2 Campb. goods seized, where it turns out that 
 
 452. the goods were not the goods of the 
 
 (m) Austin, v. Ward, 1 Car. & P. defendant ; Farebrother v. Simons, 1 
 
 370, 507; 1 Ry. & Mo. 116, S. C. Carapb. 345. 
 It does not appear to be clear whether
 
 304 sheriff's duties in the execution of a fieri facias. 
 
 CHAP. X. which, in ignorance of the facts, he had so paid over to him (n). 
 
 SECT. VIII. Where a sheriff's officer, in consequence of a false represent- 
 ation made to him, settled, out of his own money, an action 
 against the sheriff, it was held that the sheriff might, on behalf 
 of the officer, sue the party who made such representation (o). 
 
 (h) Crowder v. Long, 8 Barn. & (o) Evans v. Collins, 5 Q. B. 804, 
 
 Cress. 598. 820.
 
 ( 305 ) 
 
 CHAPTER XI. 
 
 ELEGIT. 
 
 Of the nature of the Writ. — What may he taken under it. — How 
 executed. — Lands and Goods how delivered. — Return. — Pound- 
 age. — Sheriff's Liability. — Restitution. 
 
 At the common law, the only writ of execution against the lands 
 of the defendant was a writ of levari facias, but this writ, ex- 
 cepting in case of outlawry, is entirely superseded by the writ 
 of elegit (a). The writ o^ elegit is a writ of execution (&), 
 founded on the statute of Westm. 2 (13 Edw. 1, c. 18), by 
 •which it is enacted, that "when a debt is recovered or acknow- 
 ledged in the king's court, or damages awarded, it shall be in 
 the election of him who sues for such debt or damages to have 
 a writ o^ fieri facias to the sheriff, for levying the debt upon the 
 
 (a) See ante, 232, as lo the writ of 
 levari facias and what may be taken 
 under it. 
 
 (b) This writ is called an elegit, 
 because the plaintiff or conusee has 
 made his election to sue out execution 
 of the land itself, which is given by 
 the above-mentioned statute, instead 
 of the common law executions; and 
 the words in the entry of the award 
 of this writ are, "chme to he delivered 
 to him all the goods, &;c." After 
 lands are extended on an elegit, the 
 plaintiff cannot sue out any other 
 writ of execution, for this is deemed 
 satisfaction ; Crawley v. Lidgent, 
 Cro. Jac. 338. Indeed, it was for- 
 merly considered that the mere entry 
 of an award of an elegit on the roll 
 barred the plaintiff from resorting to 
 any other writ of execution ; but now 
 only tlie sheriff's return, that he had 
 delivered land according to the exi- 
 gence of the writ, is a bar to a ca. sa. 
 or a Ji. fa. j Foster v. Jackson, Hob. 
 
 57, 58 ; Glasscock v. Morgan, 1 Lev. 
 92; 2 Lord Kaym, 1451; 12 Alod. 
 356, 357. And now either of those 
 writs may issue, if the sheriff returns 
 nihil to an elegit ; Knowles v. Palmer, 
 Cro. Eliz. 160: or if lands be ex- 
 tended, but cannot be made available 
 to the purposes of the writ ; Palmer v. 
 Knowles, 1 Leon. 176; 1 Rol. Abr. 
 905, pi. 6. So if part of the debt be 
 levied on an elegit on the goods of llie 
 defendant, the plaintiff may have a 
 fresh execution, or debt on judgment 
 for the residue ; Hesse v. Stevenson, 
 1 N.Il. 133; Bacon v. Peck, 1 Str. 
 226. It is said that an elegit may be 
 issued after a year, without a scire 
 facias, merely upon entering an award 
 of elegit upon the roll wilhm the year, 
 and continuing it by vicecomes mm 
 miiit breve to the time of suing out the 
 writ; Seymour v. Greenvill, Carth. 
 2B3 ; sed qumre, and see 2 Saund. 
 68 c; Tidds Pract. 1136.
 
 306 . ELEGIT, 
 
 CHAP. XI. lands and chattels, or that the sheriff deliver to liim all the 
 chattels of the debtor (saving only his oxen and beasts of the 
 plough), and a moiety of his land, until the debt be levied, by a 
 reasonable price or extent ; and if he be evicted, he shall re- 
 cover by writ of novel disseisin, and afterwards by writ of re- 
 disseisin, if there be occasion." 
 
 By statute 1 & 2 Vict. c. 110, s. 11, it is enacted, "that it 
 shall be lawful for the sheriff or other officer to whom any writ of 
 elegit, or any precept in pursuance thereof, shall be directed, at 
 the suit of any person, upon any judgment which, at the time 
 appointed for the commencement of this act, shall have been 
 recovered, or shall be thereafter recovered, in any action in any 
 of her majesty's superior courts at Westminster, to make and 
 deliver execution unto the party in that behalf suing of all such 
 lands, tenements, rectories, tithes, rents and hereditaments, 
 including lands and hereditaments of copyhold or customary 
 tenure, as the person against whom execution is so sued, or any 
 person in trust for him, shall have been seised or possessed of 
 at the time of entering up the said judgment, or at any time 
 afterwards, or over which such person shall at the time of 
 entering up such judgment, or at any time afterwards, have any 
 disposing power which he might, without tlie assent of any other 
 person, exercise for his own benefit, in like manner as the 
 sheriff or other officer may now make and deliver execution of 
 one moiety of the lands and tenements of any person against 
 whom a writ of elegit is sued out ; which lands, tenements, 
 rectories, tithes, rents and hereditaments, by force and virtue of 
 such execution, shall accordingly be held and enjoyed by the 
 party to whom such execution shall be so made and delivered, 
 subject to sucli account in the court out of which such execution 
 shall have been sued out as a tenant by elegit is now subject to 
 in a court of equity: provided always, that such party suing out 
 execution, and to whom any copyhold or customary lands shall 
 be so delivered in execution, shall be liable and is hereby 
 required to make, perform, and render to the lord of the manor, 
 or other person entitled, all such and the like payments and 
 services as the person against whom such execution shall be 
 issued would have been bound to make, perform, and render in 
 case such execution had not issued ; and that the party so suing
 
 ELEGIT. 307 
 
 out such execution, and to whom any such copyhold or customary chap. xi. 
 lands shall have been so delivered in execution, shall be entitled 
 to hold the same until the amount of such payments, and the 
 value of such services, as well as the amount of the judgment, 
 shall have been levied ; provided also, that as against purchasers, 
 mortgagees or creditors, who shall have become such before the 
 time appointed for the commencement of this act, such writ of 
 elegit shall have no greater or other effect than a writ of elegit 
 would have had in case this act had not passed." 
 
 By the writ of elegit the sheriff is commanded (c) " that 
 without delay he cause to be delivered to the plaintiff, by a 
 reasonable price and extent (d), all the goods and chattels of the 
 said defendant in his bailiwick (except his oxen and beasts of 
 the plough), and also all such lands and tenements, rectories, 
 tithes, rents and hereditaments, including lands and heredita- 
 ments of copyhold or customary tenure, in the sheriff's bailiwick, 
 as the defendant, or any person in trust for him, was seised or 
 possessed of on the day the judgment was obtained, or at any 
 time afterwards, or over which the defendant had any dis- 
 posing power which he might, without the assent of any other 
 person, exercise for his own benefit, to hold the said goods and 
 chattels as his proper goods and chattels, and to hold the said 
 lands, tenements, rectories, tithes, rents and hereditaments re- 
 spectively, according to the nature and tenure thereof, to him 
 and to his assigns until the debt and damages, together with 
 interest, be thereof levied." 
 
 The writ of elegit cannot be sued out for j;ar^ only of the 
 sum recovered by the judgment, unless it shows on the face of 
 it that the residue of the judgment has been satisfied or other- 
 wise disposed of (e). 
 
 The sheriff's duty on an elegit is, in the first instance, to whai goods 
 take the goods of the defendant (excepting oxen and beasts of uken.'and 
 the plough), and deliver them to the plaintiff at the price found ''°"' '"^'*' 
 by a jury, to be summoned as hereafter mentioned. Whatever 
 
 (c) See form of writ framed by the "extent," to the defendant's lands; 
 judges pursuant to 1 & 2 Vict. c. 110, Palmer's case, 4 Rep. 74 b; 2 Inst. 
 H. T. 2 Vict. Append. 396. 
 
 (d) The word "price," mentioned (e) Sherwood v. Clark, 15 M. & 
 in the statute, is referrable to the de- W. 764 ; see Webber v. Hutchins, 8 
 fendant's goods and chaUels; and M. & W. 319.
 
 308 ELEGIT. 
 
 CHAP. XI. may be taken as goods and chattels under a fieri facias may be 
 taken under this part of the writ of elegit, and no more(y"). 
 A term of years may either be extended at an extended annual 
 value, as part of the lands of the defendant ; or it may be 
 delivered to the plaintiff, as part of the defendant's chattel pro- 
 perty, the jury having first appraised it at the gross sum {g). 
 The landlord is entitled to a year's rent under the statute of 
 Anne, where goods are taken on an elegit, in like manner as 
 where goods are taken on a fi.fa. (Ji). But in one respect this 
 writ differs from 2i fi.fa., for instead of selling the goods as on 
 ?i fi.fa., and bringing the money into court, it is the duty of the 
 sheriff to deliver the goods to the plaintiff at the value found by 
 the jury (i). 
 What lands If the chattels taken be sufficient to satisfy the debt, then the 
 
 may be *' 
 
 taken atui sheriff oucrht not to extend the landi'A;), But if the goods be 
 
 wliat not. rr. • 1 1 . • 
 
 not sufficient, the lands, after being valued by the jury, must 
 be set out by metes and bounds, and delivered to the plaintiff. 
 Whatever land the defendant had at the time the judgment was 
 entered up is liable to be extended on an elegit (f). All lands of 
 the defendant are liable to be extended, whether he has an estate 
 in fee, in tail, for life, or for years ; but formerly, before the stat. 
 1 & 2 Vict., c. 110, copyhold lands (in), or a lease of copyhold 
 lands, were not extendible on an elegit (n), as part of the realty. 
 But lands held in ancient demesne might be extended and de- 
 livered over on an elegit (o). Although the word " lands " is 
 used in the statute, yet whatever comes under the legal defi- 
 nition of a tenement was always extendible on an elegit, as a 
 reversion (p), or a rent charge (y). But a rent seck(r), or an 
 
 (/) SeeaHfe, 249. Ry. 603 3 1 Roll. Abr. 8883 3 Rep. 
 
 (^) 2 Inst. 395; Fleetwood's case, 9. 
 
 8 Rep. 171 ; Dalt. 137. (n) 1 Roll. Abr. 888. 
 
 {h) See onte, 274. (0) Cox v. Barnsley, Hob. 47; 
 
 (i) Per Holt, C.J., 1 Ld. Raym. Moore, 211 ; 2 Inst. 397; 1 Roll. Abr. 
 
 346. And therefore if a term be taken 888, 1, 5. 
 
 upon an e/eg-if, and judgment be after- (p) Gilb. Execution, 38 ; Bishop 
 
 wards reversed, the termor shall be re- of Biistol's case, 2 Leon. 113; 1 Roll. 
 
 stored to his term, and not to the value Abr. 894, 1. 5; Mayor of Poole v. 
 
 of it;Goodyerei'.Ioce, Cro. Jac. 246; VVhilt, 15M. & \V.571. 
 
 Bathurst's case, Dyer, 363, in marg. (0) Bro. Elegit, 13; Moore, 32; 
 
 {k) 2 Inst. 395. Wotton v. Shirt, Cro. Eliz. 742. 
 
 (/) 2 Inst. 395; stat. 29 Car. 2, c. (r) VValsal v. Heath, Cro. Eliz. 
 
 3, ss. 14, 15, 18. 656; 3 Rep. 9. 
 
 (w) Morris v. Jones, 3 Dowl. &
 
 ELEGIT. 309 
 
 office, as that of filazer, were not extendible on an elegit (5) ; chap. xr. 
 an office is not extendible, because it cannot be granted over. 
 Lands which the defendant hath by extent upon a statute are 
 liable to be taken upon an elegit {t). But lands of which the 
 defendant is disseised, in the hands of the deissor, are not liable 
 to be taken on an elegit («). Neither is an advowson in gross (a:), 
 because a moiety of it could not be set out, nor can it be valued 
 at any certain rent towards payment of the debts ; nor the glebe 
 of a parsonage or vicarage ; nor can a church -yard be extended 
 upon an elegit (y), although it is said that the lands of a bishop 
 may be extended (z). So may the lands which a husband has 
 in right of his wife (a). 
 
 Before the passing of the statute of 29 Car. 2, c. 3, lands 
 held in trust for the defendant could not be extended upon an 
 elegit, issued on a judgment, statute, or recognizance of the 
 cestui que trust. But by the 10th section of that act it is enacted, 
 that " it shall be lawful for every sheriff or other officer, to 
 whom any writ or precept is directed, at the suit of any person 
 or persons, of, for and upon any judgment, statute, or recogni- 
 zance, thereafter to be made or had, to do, make and deliver 
 execution unto the party in that behalf suing of all such lands, 
 tenements, rectories, tithes, rents, hereditaments, as any other 
 person or persons are in any manner seised or possessed in 
 trust for him against whom execution is so sued, like as the 
 sheriff or other officer might or ought to have done if the said 
 party against whom execution is so sued had been seised of 
 such lands, &c., of such estate as they are seised of in trust for 
 him at the time of the said execution sued ; which lands, &c., by 
 force and virtue of such execution, shall accordingly be held 
 and enjoyed freed and discharged from all incumbrances of 
 such person or persons as shall be so seised or possessed in 
 trust for the person against whom such execution shall be sued; 
 and if any cestui que trust shall die, leaving a trust in fee simple 
 to descend to his heir, then and in every such case such trust 
 shall be deemed and taken, and is thereby declared to be, assets 
 
 (s) Dyer, 7 b. (v) Gilb. Execution, 40; Jenk. 
 
 (t) Com. Dig. Execution (C 14). 407 ; per cur. 3 Bos. 6i Pul. 327. 
 
 <u) Roll. Abr. Execution (^M 5). (s) Dalt. 136. 
 
 (x) Gilb. Execution, 39: but see (a) Id ibid, 
 3P. Wms. 401.
 
 310 ELEGIT. 
 
 CHAP. xr. by descent, and the heir shall be liable to and chargeable with 
 the obligation of his ancestor, for and by reason of such assets, 
 as fully and amjjly as he might and ought to have been, if the 
 estate in law had descended to him in possession in like manner 
 as the trust descended." The estate liable to be taken by vir- 
 tue of this statute must be a simple trust estate for the benefit 
 of the debtor solely ; and therefore where land was vested for 
 a long term of years in a trustee, in trust to permit E. G. to re- 
 ceive the rents and profits until default of payment of a rent- 
 charge, or until E. G. should insure the premises ; and in case 
 of such default, in trust to pay to M. G. out of the rents and 
 profits a certain rent charge, it was held that this was not such 
 a trust as could be extended upon an elegit against E. G. (&). 
 It was, under the stat. of 29 Car. 2, held, that if a man be 
 cestui que trust of a term, it is not assets within the statute, for 
 it extends only to a trust of land in fee (c). An equity of re- 
 demption cannot be taken in execution under this statute, 
 whether it be of a freehold estate (rf), or of a term of years (e). 
 The words in the act, " at the time of the said execution sued," 
 were held to refer to the seisin of the trustee ; and therefore, if 
 he has conveyed the lands by the direction of the cestui que 
 trust before execution, though seised in trust at the time of the 
 judgment, the lands cannot be taken in execution (f) ; but 
 since the passing of 1 & 2 Vict. c. 110, a conveyance of the 
 lands after judgment would not defeat an elegit. 
 
 Before the passing of the late statute, where an estate was 
 limited as A. should appoint, and in default of appointment to 
 A. in fee, it was held that A. might defeat the effect of a judg- 
 ment, by an execution of the power of appointment (g). The 
 execution creditor is not entitled to rent which becomes due 
 after the delivery to the sheriff of an elegit, but before inqui- 
 
 (b) Doerf. Hull V. Greenhill, 4 Bar. The plaintiff may, where the land of 
 & Aid. 684. the defendant is mortgaged, file a bill 
 
 (c) King V. Ballett, 2 Vern. 248 ; in equity to redeem, which he is en- 
 and see 2 Saund. 11. titled to do on payment of principal 
 
 (d) Plunket v. Penson, 2 Atk. 290. money and costs, as the equity of re- 
 
 (e) Lyster V. Dolland, 1 Ves. jun., demption is considered assets to satisfy 
 431 ; 4 Bro. Chan. Ca. 478, S. C. ; the judgment. 
 
 and see Scott «. Scholey, 8 East, 467, (/) Hunt v. Coles, Com. Rep. 
 
 486; Harris v. Booker, 4 Bing. 96; 226; Com. Dig. Execution (C) 14. 
 12 Moore, 283, S. C; Mayor of (g) Doe rf. Wigan d. Jones, 10 B. 
 
 Poole V. Whilt, 15 M. & VV. 571. & C. 459; 5 Man. & R. 563, S. C.
 
 ELEGIT. 311 
 
 sition taken (/<)• It has been questioned whether the lands of chap, xr. 
 a borough corporation, held only for the purposes of the borough 
 vmder the Municipal Corporation Act (5 & G Will. 4, c. 76, s. 92), 
 are liable to an elegit, but the question as yet has not been de- 
 termined (/). 
 
 All the authorities agree that the sheriff, in executing a writ inquisition 
 of elegit, must take an inquisition, although the writ does not 
 particularly require the sheriff to hold an inquisition ; for he 
 cannot appraise the goods, or value the lands himself, but the 
 same must be done byajury(^); therefore, on receiving the 
 writ, the sheriff should forthwith proceed to impanel a jury(Z). 
 The sheriff and jurors may go into the house or ground of the 
 defendant if the doors and gates be open, but they ntiust not 
 break open the gates or doors for the purpose of executing the 
 writ (m). No notice is necessary to be given of executing the 
 elegit. The sheriff should charge the jury " to inquire what 
 goods and chattels, (except the oxen and beasts of the plough), 
 and also what lands, tenements, rectories, tithes, rents, and 
 hereditaments, including lands and hereditaments of copyhold 
 or customary tenure, the defendant, or any person in trust for 
 him, hath or had, or was seised or possessed of, in the bailiwick 
 
 of the sheriff of N., on the day of , in the year 
 
 of the reign of our sovereign lady Victoria, or at any time since, 
 or over which the defendant had any disposing power, which he 
 might without the assent of any other person exercise for his 
 own benefit, that the same may, at a reasonable price and extent 
 to be made, be delivered to the plaintiff to hold as his own 
 proper goods and chattels, and also to hold the said lands, tene- 
 ments, rectories, tithes, rents, and hereditaments respectively, 
 according to the nature and terms thereof, to him the plaintiff 
 and his assigns, according to the form of the statute, &c. 
 
 (h) Sharpe v. Key, 8 M, & W. elegit that there are no lands, the 
 
 379; 9 Dowl. 770, S. C sheriff need not return an inquisition, 
 
 (i) Doe d. Parr v. Roe, 1 Q. B. for the use of that is only to deliver a 
 
 700. Semble, that ihey are liable; moiety of the lands by, if there are 
 
 see per Lord Denmin, C. J., i?). 706. any." This has been cited to show 
 
 {k) Co. Litt. 289 b ; 2 Inst. 396 ; that where there are only goods the 
 
 Com. Dig. Execution (C) 14; Eac. sheriff' need not hold an inquest, but 
 
 Abr. tit. Execution (H) 2 ; Dyer, this does not prove any such thing. 
 100 b; Palmer I). Humphrey, Cro. (/) As to the manner ofsummoning 
 
 Eliz. 584 ; 4 Rep. 74. But see Stone- ajury, see the directions for so doing on 
 
 house V. Ewen, Stra. 874, where it a writ of inquiry, post, chap. 13. 
 is laid down to have been held per (m) Dalt. 134. 
 
 Curiam : " If it be returned to an
 
 jury 
 
 312 ELEGIT. 
 
 cHAi'. XI. The inquisition ought to find the lands with convenient cer- 
 Oi the find- ^^'^'y *, foF want of finding some particular estate the inquisition 
 ina of the would be insufficient. If the defendant be ioint tenant, or tenant 
 
 lurv. _ J ' 
 
 in common, it ought to be specially mentioned in the inqui- 
 sition (h). Thus it is said in Palmer's case(o), that where an 
 inquisition found that the queen's debtor was possessed of cer- 
 tain lands for the term of divers years yet to come, it is insuffi- 
 cient, for a term cannot be extended without showing the be- 
 ginning and certainty of the term ; and also, before the late sta- 
 tute, the jury should find a moiety of the lands by metes and 
 bounds, in order that the sheriff should deliver the same to the 
 plaintiff (p). But since the stat. 1 & 2 Vict. c. 110, it is not 
 necessary to set out the premises by metes and bounds : it is 
 sufficient to describe them with such a degree of accuracy that they 
 may be readily identifiedTy). The sheriff was not bound to deliver 
 a moiety of each particular tenement and farm, but it was suffi- 
 cient if he delivered particular tenements as a moiety in value of 
 the whole (r). Thus, it is laid down in Brooke's Abridg- 
 ment (a), " that if an elegit issue against one that hath two 
 manors, the sheriff may deliver one of the manors to the plain- 
 tiffin the name of a moiety of the whole, and is not bound to 
 deliver a moiety of each manor, and so of two acres, and this 
 seems to be when they are of equal value." Where the defend- 
 ant had merely a house, if the sheriff upon an elegit delivered a 
 moiety of the house without metes and bounds, such return 
 was ill (Z) ; but the jury should set out such and such rooms as 
 
 (n) Hutt. 16; 1 Brownl, 38. Saund. 68 c, n. (i). 
 
 (o) 4 Rep. 74; Dalt. Sher. 139. (p) It would appear to be the pro- 
 
 In the report of this case by Croke, vince of the jury to ascertain and set 
 
 it is said that such a finding would out the moiety of the lands by metes 
 
 be sufficient; Palmer v. Humphrey, and bounds; Sparrow v. Mattersock, 
 
 Cro. Eliz. 584; see also 2 Leon. 121 ; Cro. Car. 319 ; Doug. 473. And it 
 
 3 Leon. 204. " J he two reports may would not be sulficient for the sheriff 
 
 perhaps be reconciled by this dis- himself to set out the moiety of the 
 
 tinction, that when the whole term is lands. 
 
 appraised and sold for a gross sum, as (q) Doe d. Roberts v. Parry, 13 
 
 part of the debtor's personal estate, M. 6i W. 356 ; Sherwood v. Clatk, 
 
 then, as the elegit is considered in the 15 M. & W. 764. 
 
 nature o( a. Jieri faciaa, the sheriff (?•) Dean i'. Lord Abingdon, Doug, 
 
 may sell such an uncertain interest 473. 
 
 under it as well as under a fieri facias ; (s) Elegit, 14, cit. 12 Edw. 4, 2. 
 
 but when a moiety is extended at an (l) Per Holt, C. J., Pullen v. 
 
 annual value, so general a finding by Purbeck, Carth. 453 ; 12 Mod. 356, 
 
 the inquest may perhaps be insuffi- S. C. 
 cient;" but see Lane, 50, 51 ; 2
 
 ELEGIT. 
 
 a moiety in value of the house, and the sheriff should deliver 
 those rooms to the plaintiff (ii). 
 
 Before the stat. 1 & 2 Vict. c. 110, if the sheriff did not set 
 out and deliver the moiety of the lands by metes and bounds, the 
 return was void (x). If the inquisition be void for uncertainty, 
 or for any other defect, the court will set aside the return, and 
 will order the writ to be vacated and grant another, and amerce 
 the sheriff (y) ; but after the return has been filed, the courts 
 formerly would not set aside a writ of elegit (2) ; and in a recent 
 case (a), on a motion to set aside two writs of elegit, the court 
 refused to set aside the second writ, because the sheriff had de- 
 livered the whole of the land remaining after the first elegit on 
 the second, inasmuch as such return was a mere nullity. 
 
 But if lands which cannot be extended on an elegit be found 
 on the inquisition together with lands which can properly be 
 extended, and the sheriff sets out each, it would appear that the 
 extent is not bad in toto, but only for the part that is not ex- 
 tendible (b). Where fraud, deceit, or partiality has been prac- 
 tised, if the writ be not filed, the court will stay the filing of it 
 and grant another writ (c) ; so if it appear that the lands are 
 extended at an undue value, the court will stop the filing of the 
 return (d). 
 
 If lands which cannot be extended are notwithstanding ex- 
 tended, the objection may be taken in an action of ejectment (e). 
 But if the return be void, the defendant may take the objection 
 on an action of ejectment being brought to obtain possession of 
 the land. Thus, in an action of ejectment (/), where the lessor 
 of the plaintiff claimed as tenant by elegit, the sheriff's return 
 stated that the jury found that the defendant had certain lands, 
 &c., describing them and finding their value, " one equal 
 moiety of which messuage, &c., the sheriff had caused to be 
 delivered to the lessor of the plaintiff to hold, &c. ;" it was ob- 
 
 (h) Per Bayley, J., in Fenny v. Ry. 603 ; 2 Bar. & Cress. 242, S. C. 
 
 Durant, 1 Bar. & Aid. 42. '(b) Morris v. Jones, 3 D. & R. 
 
 (x) Pfi) Holt, C. J., Carth.453 ; 1 603. 
 
 Bar. & Aid. 40. (c) 2 Inst. 396. 
 
 (v) 1 Sid. 91,239; Pullen d. Pur- (d) 2 Ca. Ch. 183; Com. Dig. 
 
 becic, Salk. 563 ; 12 Mod. 368, S. C. Execution (C) 14. 
 
 (s) Com. Dig. Execution (C) 14; (e) See Doe (Z. Parr n. Roe, 1 Q. B. 
 
 2 Inst. 396 ; sed vide 1 Vent. 259 ; 1 700. 
 
 Lord Raym. 718; 12 Mod. 355; (/) Fenny d. Masters v. Durant, 
 
 Salk. 563". 1 Bar. & Aid. 40; see Denn v. Lord 
 
 (a) Monis i'. Jones, 3 Dovvl. & Abingdon, Doug. 473. 
 
 313
 
 314 ELEGIT. 
 
 ciiAi'. XI. jected that the return was void for not setting out the moiety by 
 metes and boimds, vvliich the Court of King's Bench, after argu- 
 ment, held to be fatal, and ordered a nonsuit to be entered ; and 
 Bayley, J., said, " In this case the jury might have found that 
 the debtor was seised of such a house, and that such and such 
 rooms constituted a moiety in value, and then the sheriff" might 
 have delivered those rooms to the lessor of the plaintiff". If the 
 return is bad, the defendant has a right to say it is bad. The 
 objection was raised the same way as here at Nisi Prius in Denn 
 V. Lord Abingdon. 
 
 The court will not try the truth of an inquisition on mo- 
 tion (g). The words of the old writ of elegit were, " to hold as 
 his freehold," because the statute, in case of eviction, gives a 
 remedy by assize ; still, however, a tenant by elegit has no free- 
 hold, but only a chattel interest, which will devolve upon his 
 executors {1i). 
 
 When there If two persons had iudcrments against a defendant, and one 
 
 are severnl J o o ' 
 
 writs of eie- of them had a moietv of the defendant's lands delivered to him 
 
 git, •' 
 
 upon an elegit, the other, upon suing out an elegit afterwards, 
 could only have a moiety of the moiety which remained to the 
 defendant (i). But if one person had the two judgments, and 
 sued two elegits during the same term ; on one elegit he should 
 have a moiety of the defendant's lands, and the entire of the other 
 moiety on the other elegit, and not merely a moiety of a moiety (Jk), 
 How iiie The sheriff" is to deliver the whole of the goods found by the 
 
 sheriff 19 to . . , , ^ , 1 • /• 1 
 
 deliver the mquisition iuto the hands of the defendant ; and it was formerly 
 lands. usual for the sheriff" to deliver actual possession of a moiety of 
 
 the lands ; but now he only delivers legal possession, and in 
 
 order to obtain actual possession, the plaintiff" must proceed by 
 
 ejectment (/). 
 Reiiini. The writ of elegit must in all cases be returned, if the sheriff" 
 
 has done any thing under it ; and it is essential that the elegit 
 
 (g) Cooper V. Gardner, 3 A. & E. (/) Taylor v. Cole, 3 T. R. 295 ; 
 
 211. 2 Saund. 69 a ; sed vide the judgment 
 
 (//) 2 Inst. 396. of Gibbs, C. J., in Rogers i;. Pitcher, 
 
 (?) Huit V. Coggan, Cro. Eliz, 483. 6 Taunt. 207, where he expressed him- 
 
 (/c; The Attorney-General v. An- sell to be of opinion that there is no 
 
 drew, Hardr. 23 ; see also Doe d. necessity for tenant by elegit to bring 
 
 Davies v. Creed, 5 Bing. 327 ; 2 M. ejectment to obtain possession, but 
 
 & P. 648, S. C, nom. Doe d. Cheese that he might enter at once, excepting 
 
 V. Creed ; sed vide Morris v. Jones, where the person in possession held 
 
 3 Dowl. & Ry, 603; 2 Bar. & Cress. under a lease prior to the plaintiff's 
 
 242, S. C. judgment.
 
 315 
 
 and the inquisition taken by the sheriff should be returned chap, xi 
 and filed, when land is extended by the writ(m). But if the 
 defendant has no land, the sheriff need not return the inquisition 
 at all (n) ; in such case the proper return is nihil. Mandavi 
 hallivo is a good return to a writ oi elegit {6). And it is a good 
 return, that the sheriff has extended the lands of the defendant, 
 but could not deliver them to the plaintiff, for another had them 
 in extent before {p). The court will not, at the instance of the 
 sheriff, enlarge the return of an elegit by altering it to a later 
 day {q). 
 
 The sheriff is entitled under the stat. 28 Eliz. c. 4, to pound- Poundage. 
 age on an elegit, that is to say, 1*. in the pound on the first 
 3 00/.; and Qd. in the pound for the sum above 100/. (r). But 
 it seems to be questionable whether he be entitled to poundage 
 for executing an elegit on the whole debt, or only on the annual 
 value of lands extended (s). 
 
 If the inquisition be void, it is said that the court will set it 
 aside and amerce the sheriff(<). And if the sheriff return that 
 he has delivered land upon inquisition taken, when he refused 
 to deliver it, an action on the case lies for a false return, though 
 the plaintiff may enter without it, yet that is only in mitigation 
 of damages (li). 
 
 The tenant by elegit has only the land until his debt be Resiitutioi 
 levied ; and whensoever the party pay or satisfy the debt of 
 record, he shall enter into his land ; and so it is when the tenant 
 by elegit is satisfied by the ordinary extent, the tenant of the 
 land may enter. But if it be of any casual profit, to avoid the 
 extent, he must have a scire facias in respect of the uncer- 
 tainty (a;). But the Court of King's. Bench recently, on motion, 
 referred it to the master to take an account of the rents and 
 profits of an estate, of which the plaintiff was in possession by 
 virtue of a writ of elegit ; and that the plaintiff should give up 
 
 (m) Hoe's case, 5 Rep. 90 a ; Ful- (r) Tyson v. Paske, 2 Lord Raym. 
 
 wood's case, 4 Rep. 67 ; Dyer, 100, 1212; Salk. 333, S. C. ; Jaysoa v. 
 
 in marg. ; see Forms of Returns, Ap- Rash, Salk. 209. 
 
 pend. (s) See aiite, 112; Price i). Hollis, 
 
 ()/) Stonehouse v. Owen, 2 Stra. 1 M. & Sel. 105; Peacock v. Harris, 
 
 874. Salk. 331. 
 
 (o) Sparrow v. Matlersock, Cro. (O See ante, 313. 
 
 Car. 319. (h) Lister r. Bromley, 1 Roll. Abr. 
 
 (p) Dalt. Sheriff, 232. 738, I. 15. 
 
 \q) Hildvard v. Baker, 1 C. & M. (x") 2 Inst. 395; and see Underbill 
 
 611 ; 2 Dovvl. 16, S. C. v. Devereux, 2 Saund. 68, 71.
 
 316 ELEGIT. 
 
 ciiAi'. XI. possession, if it appeared that all the monies due to him had 
 been received (y). In a court of equity, in taking the account 
 of the profits of the land, the plaintiff is entitled to interest upon 
 his judgment beyond the sum recovered by the judgment (z). 
 If judgment be reversed where goods have been taken and deli- 
 vered upon an elegit, the defendant shall be restored to the 
 goods themselves, and not to the value of them as on restitution 
 of goods taken on a. fieri facias (a) . 
 
 (y) Price v. Varney, 5 Dow I. & (a) Goodyere v. Ince, Cro. Jac. 
 
 Ryl 612 ; 3 Bar. & Cress. 733, S. C. 246 ; Bathurst's case, Dyer, 363, in 
 
 (z) Godfrey y. Watson, 3 Alk. 517; marg. ; Bathurst v. Mayo, 1 Roll. 
 
 Earl Bath t;. Earl Bradford, 2 Ves. Abr. 778, I. 32, 55. 
 sen. 589.
 
 ( 317 ) 
 
 CHAPTER XII. 
 
 HABERE FACIAS POSSESSIONEM. 
 
 Of the Writ. — How executed.— Sheriff's Duty in Case of Dis- 
 turbance.— Return.— Fees thereon. — Actions against the Sheriff 
 in respect of. 
 
 After a recovery in ejectment, it has been said that the plaintiff 
 may enter upon the land without issuing any writ of posses- 
 sion (a); but this doctrine cannot now be considered as law (6); 
 and even if it were so, this mode of proceeding is open to very 
 serious objections, as likely to lead to a breach of the peace ; 
 and moreover it is highly inconvenient that any other person, 
 except the known responsible officer of the court, should execute 
 its judgments. 
 
 The writ of habere facias possessionem is the writ of execution Of ihe writ. 
 in the action of ejectment ; by which writ the sheriff is com- 
 manded, that without delay he cause the plaintiff to have pos- 
 session of his term (or, if there be more than one demise, " his 
 several terms yet to come of and in the tenements recovered") ; 
 af.fa. or ca. sa. for costs may be included in the writ ofhabere 
 facias possessionem. The duty of the sheriff, in the execution 
 and return of that part of the writ, is the same as on a common 
 f.fa. or ca. sa. In such case the sheriff should make his return 
 of both parts of the writ. 
 
 On the delivery of the writ to the sheriff, he makes out his How exe- 
 warrant to one or more bailiffs to execute it (c). He is bound 
 to execute the writ w ithin a reasonable time ; and if after a writ 
 is delivered to him, and he has an opportunity to execute it, and 
 refuses or neglects to do so, he is liable to an action at the suit 
 of the lessor of the plaintiff, who may recover against him all 
 damage which he has sustained by reason of his neglect, even 
 though the judgment be afterwards set aside by a judge's order, 
 
 (a) Badger u. Floid, 12 Mod. 398; (c) See form. Append. The fee 
 
 Anon. 2Tid. 156; 1 Burr. 88, arg. usually charged for the warrant is 
 
 (6) See Doe rf. Stevens v. Lord, 6 2.s. 6rf. ; as to the legality of which 
 
 Dowl. 218 ; 7 A, & E. 611, S. C. charge, see ante, 112.
 
 318 HABERE FACIAS POSSESSIONEM. 
 
 CHAP. XII. in order to let the landlord in to plead (d). It is usual for the 
 lessor of the plaintiff to give the sheriff an indemnity for exe- 
 cuting the writ (e) ; and it seems he may demand an indemnity 
 before he executes the writ(/). And in executing the writ, the 
 sheriff and officer act under the immediate direction of the lessor 
 of the plaintiff or his attorney, to whom the sheriff is to deliver a full 
 and actual possession of the premises. The officer, if necessary, 
 may break open either the outer or the inner doors of the house, 
 in order to execute a writ o( habere facias possessionem (g); and 
 if violence be apprehended, he should raise the posse comitatus(Ji). 
 And as the sheriff is to give actual possession of the premises 
 recovered, he should remove all persons and their goods from 
 off the premises ; for if persons be left on the premises, the 
 execution is not complete (i). If there be several tenements in 
 the possession of one person, it is said to be sufficient for the 
 sheriff to deliver possession of part to the plaintiff in the name 
 of the whole (k) ; and this is said to be the safer way for the 
 sheriff, because he executes the writ at his peril (/), and if he 
 give possession of any land not included in the writ, he is a 
 trespasser (?«) ; but it is recommended as the surest and most 
 effectual way of executing the writ, for the sheriff to remove all 
 the tenants entirely out of each house or parcel of land, and 
 when the possession is quitted, to deliver it to the plaintiff; and 
 this course is absolutely necessary where the land is in the 
 possession of several tenants (n). The execution is not complete 
 until the bailiffs have yielded possession to the plaintiff (o) ; and 
 if the tenant, immediately after the sheriff has given possession, 
 ejects the plaintiff, the sheriff may restore him to the possession, 
 for the writ was not executed until the plaintiff has obtained 
 full and quiet possession {p). As to the quantity of land which 
 the sheriff is to deliver possession of to the plaintiff, as the writ 
 
 {d) Mason v. Paynter, 1 Q. B. hold's Prac. 767, 7th edit. 
 974. (/c) Per Haughton, J., Floyd v. 
 
 (e) Tidd's Prac. 1080, 8th edit.; Bethel!, 1 Rol. Hep. 421; Roll. Abr. 
 
 Com. Dig. Execution (A) 3; Run. Execution (H) 1. 
 Eject. 432; see form of such indera- (/; Dalt. 256; lOVin. 539; Run. 
 
 nity, post. Append. Eject. 432, 433 ; Tidd's Prac. 1081, 
 
 (/) Adams' Eject. 342, 3id edit. 8th edit. 
 
 \g) Semayne's case, 5 Rep. 91 b; (m) Sed vide Keilway, 119, 120. 
 
 see ante, 75. (k) Roll. Abr. Execution (H) 2. 
 
 (h) See anle, 73. (o) Per Holt, C. J., 6 Mod. 115. 
 
 (i) Upton t). Wils, 1 Leon. 145; (p) Molineux v. Fulgam, Palm. 
 
 Tidd's Prac. 1081, 8th edit. ; 2 Arch- 289.
 
 HABERE FACIAS POSSESSIONEM. .319 
 
 does not describe either the quantity or locality with minute chap. xh. 
 certainty, the party is bound to point out to the sheriff, at his 
 peril, the precise lands he is entitled to ((/) ; if he take more, 
 the court will order it to be restored (r). As where the plaintiff 
 in ejectment, as tenant in common, recovered possession of five- 
 eighths of a cottage, with the appurtenances, it appeared by 
 affidavit that a writ of possession was executed by the sheriff, 
 who turned the tenant out of possession of the whole, and locked 
 up the door ; the court granted a rule upon the sheriff and the 
 lessor of the plaintiff to restore the tenant to the possession of 
 three- eighth parts of the premises (s). On recovery of land 
 being part of a highway, the sheriff should deliver possession, 
 subject to the right of passage over it (<). If the sheriff is 
 to deliver possession of a certain number of acres, it seems that 
 he must give so many acres in quantity, according to the com- 
 mon estimation of the country where the land lies (u). 
 
 In ejectment, the plaintiff and defendant being merely nomi- in case of the 
 nal, even if real persons, execution might issue, notwithstanding eiiUer party. 
 their death, without a set. fa. (x). And it seems that after the 
 death of the lessor of the plaintiff, a writ might be issued and 
 executed (?/) ; at all events, if it bear teste in his lifetime (2). 
 When the real defendant dies after judgment and before execu- 
 tion, it is said that a hab.fac. poss. may be issued and executed 
 because execution is of the land only, and there is no new per- 
 son to be charged (a). 
 
 If the officer be disturbed in the execution of the writ, the Disturbance 
 
 „,,..,, , . , o' "he sheritr. 
 
 court, on amdavit, will grant an attachment against the person Attachment, 
 disturbing him, whether he be defendant or a stranger ; for it 
 
 (v) See Doe d. Davenport W.Rhodes, against the lessors of the plaintiff to 
 11 M. & W. 608 ; 1 D. & L.297, S. pay over to the late tenant (defentl- 
 C, per Lord Abinger, C. B.; Roe v. ant), the value of the crops after de- 
 Street, 2 A. & E. 329; 4 N. & M. ducting the rent; Doe v. Witherwick, 
 42, S. C. 3 Bing. 11 ; 10 Moore, 267, S. C. 
 
 (r) Cottingham v. King, 1 Burr. (f) 1 Burr. 133. 
 
 627, 629; Clonner v. West, 5 Burr. (u) Floyd v. Bethell, 1 Rol. Rep. 
 
 2673 ; indeed the sheriff is not bound 420. 
 
 to execute the writ, unless the lessor of (x) Tidd's Prac. 1171, 8th edit, 
 
 the plamtiflr, or some person authorized {y) Tidd's Prac. 1172, 8th edit, 
 
 by him, comes to receive possession; (z) Doe d. Boyer d. Roe, 4 Burr. 
 
 Dalt. 255. 1970. 
 
 (s) Roe dem. Saul v. Dawson, 3 (a) Per Holt, C. J., in Withers ?). 
 
 Wils. 49. In a recent case, where Harris, 2 Ld. Raym. 808. But the 
 
 crops were standing on the land, when surer method is said to be to sue out a 
 
 possession was taken under a hab.fac. sci-fa. ; Adams's Eject. 307, 2d edit. 
 pass., the court refused to grant a rule
 
 ,'320 HABERE FACIAS POSSESSIONEM. 
 
 CHAP. XII. is a contempt in any person to obstruct the execution of the 
 process of the court : and it seems that even if the execution be 
 complete by the officer leaving the plaintiff in possession, and 
 the defendant presently eject him from such possession, the court 
 will grant an attachment against the defendant (&). Where a 
 defendant in ejectment, having been dispossessed under a writ 
 of restitution, afterwards, on the night of the same day, came 
 to the premises and took forcible possession of them, Wight- 
 man, J., refused to grant an attachment against him, but made 
 absolute a rule for a fresh writ of restitution to be executed 
 within a week, and ordered the defendant to pay the costs of the 
 application (c). 
 New writ If the sheriff do not execute the writ, the courts will in ge- 
 
 ■whengranied. ^^^^| award an alias {d). And if the sheriff give possession of 
 part only, the lessor of the plaintiff may have a new habere facias 
 jjossessionan for the rest(e). But if the sheriff put the lessor of 
 the plaintiff in possession, and make his return accordingly, and 
 the defendant eject the lessor of the plaintiff, the courts will not 
 grant another habere facias possessionem (f). And it would ap- 
 pear that if immediately, or soon after the sheriff has given pos- 
 session, the defendant forcibly turn him out, the plaintiff may 
 have a new habere facias jjossessionern before the former writ is 
 returned (g-). But it is necessary that the defendant should be 
 connected with the dispossession of the lessor of the plaintiff (A). 
 But where the lessor of the plaintiff was turned out by the de- 
 fendant after a month's possession, the court held it too long a 
 time to grant a new writ of possession (i). And in a recent case> 
 where the lessor of the plaintiff had been put in possession by 
 virtue of a writ of habere facias possessionem on the 22nd of 
 February, 1806, which writ had never been returned by the 
 
 (6) Kingsdale v. Mann, 6 Mod. vereux v. Undevhill, 2 Keb. 245. 
 
 27; Salk. 321,S. C. In this case the (g) Kingsdale v. Mann, 1 Salk. 
 
 plaintiff was leli in possession at nine 32i ;. 6 Mod. 27, 115, 298, S. C. ; 2 
 
 o'clock in the morning, and he was Brownl. 216, 253; Pierson v. Ta- 
 
 ousted at six in the evening ; but the veruor, 1 Rol. Hep. 353. See also 
 
 court doubted whether or not it was Doe d. Pitcher v. Roe, 9 Dowl. 971 ; 
 
 too late to grant an attachment. Doe d. Thompson v. Mirehouse, 2 
 
 (c) Doe (/. Pitcher v. Roe, 9 Dowl. Dowl. 200 ; Doe d. Lloyd v. Roe, 2 
 
 971. Dowl. N S. 407. 
 
 (cZ) Molineux v. Fulgam, Palm. ( /i; Doe </. Thompson y. IMirehouse, 
 
 289. 2 Dowl. 200. 
 
 (e) 2 Keb. 245. ( i) Goodright v. Hart and ux. Slra. 
 
 (/) 2 Brownl. 216, 253; De- 830.
 
 HABERE FACIAS POSSESSIONEM. 
 
 321 
 
 sherifF, and on the 10th of October, 1807, the person against chap, xii. 
 whom he had recovered entered into tlie house by force, and 
 resisted with violence all attempts to regain possession ; the 
 court refused to grant a new habere facias, or an attachment 
 against the party in possession, and held that, possession having 
 been given under the first writ, the sherifF ought to have returned 
 that he had given possession, and that the plaintiff could not 
 afterwards have had another writ. An alias, it was said, cannot 
 issue after a writ is executed (k) ; if it could, the plaintiff, by 
 omitting to call on the sheriff to return the writ, might retain the 
 right of suing out a new writ of habere facias 2^ossessionem as a 
 remedy for any trespass which the same tenant might commit 
 within twenty years after the judgment. Where a stranger turns 
 the plaintiff out of possession after execution fully executed, the 
 plaintiff is put to another action, or to an indictment for a for- 
 cible entry (^). For the title never was tried between the plain- 
 tiff and a stranger ; and he may claim the land by title paramount 
 to the plaintiff, or he may come in under him, and then the 
 recovery and execution in the former action ought not to hinder 
 the stranger from keeping that possession which he may have a 
 right to. If the law were otherwise, the plaintiff might, by 
 virtue of a new habere facias, turn out even his own tenants, who 
 came in after the execution executed ; whereas the possession 
 was given to him only against the defendant in the action, and 
 not against others not parties to the suit (m). 
 
 Strictly speaking, the sheriff should return a writ of habere Return. 
 facias 'possessionem ; but it is not essential to the validity of the 
 execution that the sheriff should make his return, nor is it usual, 
 unless called on so to do, for him to return the writ. If the sheriff 
 do make a return, the usual return is, " by virtue of this writ 
 to me directed, T have given full and peaceable possession urlto 
 the within-named John Doe of the messuages, lands and pre- 
 mises, with the appurtenances within-mentioned, as within I am 
 commanded ;" and if there be a fi. fa. or ca. sa. in addition 
 thereto, the sheriff adds, that he has levied goods, &c., or nulla 
 bona to the former writ, or cepi corpus or non est inventus to the 
 latter writ, according to the fact {n). The sheriff, in excuse, 
 
 {k) Doe d. Pate v. Roe, 1 Taunt. and see id. 408; 1 Keb. 779. 
 
 55. The case of Ratcliffe v. Tate, 1 (m) Bac. Abr. Eject. (G) 3. 
 
 Keb. 779, was denied to be law. (h) See forms, Append, ch. 12. 
 
 (/) Fortune v. Johnson, Styles, 318 ;
 
 322 HABERE FACIAS POSSESSIONEM. 
 
 CHAP. XII. may return that he was always ready to dehver possession to the 
 plaintiff, and that no person on his behalf came to receive pos- 
 session (o), or that no person on behalf of the plaintiff came to 
 show the premises to the sheriff (/>) ; but it would not be a good 
 return for the sheriff to say that he was ready on a certain day 
 to give possession to the plaintiff, and he gave notice thereof to 
 the plaintiff, but that the plaintiff failed to come (</). It would 
 appear that tarde is not a good return to a writ of hab. fac, 
 pois. (r), nor that the sheriff could not execute the writ, being 
 opposed by force, for he should have raised the jtosse comi- 
 tatus(s). Mandavi hallivo to a hab. fac. poss. without a non 
 omittas, is a good return {I). 
 
 Poundage. By the Stat. 3 Geo. 1, c. 15, s. 16, the sheriff is prohibited 
 
 from taking, for executing a hab. fac. poss., more (which sums 
 the sheriff is thereby empowered to take) than I2d. in every 205., 
 if the yearly value of the premises do not exceed lOOZ. ; but if 
 it exceed 100/., then 6d. for every 205. above that sum. But 
 where the sheriff, at the instance of the plaintiff, had been put 
 to extra trouble and expense, the Court of Common Pleas con- 
 firmed the prothonotary's taxation of costs, where he had allowed 
 one guinea for the journey of the sheriff's officer; 5s. for 
 poundage ; 6s. 8d. for the warrant ; and 1 Os. 6d. on the delivery 
 of possession. The court indeed said that the statute of the 
 3 Geo. 1, c. 15, s. 16, which regulates the poundage the sheriff is 
 entitled to on a writ oUiab.fac. jioss., applied only to cases between 
 party and party, and not as between attorney and client (u). 
 
 Actions If the sheriff make a false return to this writ, there is no 
 
 against 'be 
 
 sheriff. doubt that he would be liable to an action for a false return. 
 
 It would seem that if the lessor of the plaintiff show the sheriff 
 a stranger's land, by force whereof the sheriff enters, yet he is 
 no trespasser (x). 
 
 We have also seen that an action will lie against the sheriff 
 for negligence in executing the writ (y). 
 
 (o) Floyd V. Bethell, Rol. Abr. (0 See ante, 98. 
 
 Retorn (H). (m) Capp v. Johnson, 7 Moore, 
 
 (p) Saville, 28. 518. 
 
 (9) Roll. Abr. Retorn (1). (i) Dalt. 257; Keil. 119, 120. 
 
 (r) See ante, 95. But see such a Sed quare. 
 
 return, Retorna Brevium, 352. {y) Mason v. Paynter, 1 Q. B. 
 
 (s) See ante, 97. But see Upton 974; ante, 117. 
 V. Wells, 1 Leon. 142.
 
 323 ) 
 
 CHAPTER XIII. 
 
 WRIT OF INQUIRY. 
 
 Of the Writ. — Inquest, at what Time and before whom to be held. — 
 Inquest, Proceedings before. — Evidence. — Damages, how as- 
 sessed. — Return. — Fees. — Sheriff's Liability. 
 
 There are various writs of inquiry, such as writs of ad quod or the writ. 
 damnum (a), inquiry of damages, or of waste ; but the sheriff's 
 duty is in all cases to make the inquiry as prescribed by the 
 writ : the manner of holding the inquisition, &c. will be found 
 detailed at large in this chapter. 
 
 The writ of inquiry of damages, which is the only writ of in- 
 quiry much in use at the present day, is a judicial writ, directed 
 to the sheriff of the county where the venue is laid (6), com- 
 manding him, " because it is unknown to the court what damages 
 the plaintiff has sustained," that by the oath of twelve good and 
 lawful men of his bailiwick he diligently inquire what damages 
 the plaintiff in the action has sustained by reason of the pre- 
 mises as for his costs and charges by him about his suit in that 
 behalf expended ; and that the sheriff send the inquisition which 
 he shall take therein to the court on the return day (c), " under 
 his seal and the seals of those by whose oath he should take 
 the inquisition." This writ issues only in case of a judgment 
 for the plaintiff by default or on demurrer against all the de- 
 fendants, and in those actions only where damages are reco- 
 verable. The writ of inquiry issues merely to inform the 
 conscience of the court of the amount of the damages ; but the 
 court, if they please, may themselves assess the damages. And 
 
 (a) See inquisition and warrant on ing, or any judge of any of the supe- 
 
 a writ of ad quod damnum, post, Ap- rior courts of law at Westminster, ia 
 
 pendix, c. 13. As to the writ of in- any other county or place than that 
 
 quiry in replevin, see post, chap. 18, in which the venue is laid, and the 
 
 s. 3. court may order a suggestion to be 
 
 (h) But by the stat. 3 & 4 Will. 4, entered on the record lo that effect. 
 
 c. 42, s. 22, in local actions, the writ (c) See writ, Tidd's Forms, 231, 
 
 may be executed, by order of the court 232, 5th edit.; Archbold's Forms, 342. 
 in which the action shall be depend-
 
 324 
 
 WRIT OF INQUIRY. 
 
 CHAP. xiii. therefore, if in such case final judgment be signed without a 
 writ of inquiry, it is not error (e). Indeed, it is now the practice 
 of the courts to refer actions upon bills of exchange and pro- 
 missory notes, on mortgage deeds, for rent where the lease is 
 in writing, and other demands for a sum certain upon written 
 instruments, to the master, to compute what is due thereon, and 
 in such cases the plaintiff is allowed to sign final judgment with- 
 out the intervention of a writ of inquiry (/). The writ is now 
 tested on the day on which it is issued, in actions within the 
 Uniformity of Process Act, 2 Will. 4, c. 39, and is made return- 
 able on any day certain, in term or in vacation (g-). 
 
 Inquest at The inouest may be held at any time after the delivery of the 
 
 what lime, . ^ . •' •' •' 
 
 and before writ to the sheriff, and before or on the return day (A). But a 
 held. ' writ of inquiry would not be well executed after the return day, 
 
 or even (when the proceedings were by original) between the re- 
 turn day and the quarto die post (i). Where the sheriff held an 
 inquest on the return day of the writ, but the jury did not giv^e 
 their verdict for two or three days afterwards, the writ was held 
 to be well executed (^). Eight days' notice should be given of 
 executing the writ(/), and the notice should be given for exe- 
 cuting it between some two hours of the day, as between twelve 
 and two o'clock ; if notice be given for executing it between a 
 longer period, as between ten and two o'clock, the court would 
 set aside the inquest for irregularity, provided the defendant did 
 not attend (m). If the defendant do not attend punctually at the 
 time mentioned in the notice, and the writ be executed in his 
 absence, the court will not relieve him (n). On the other hand, 
 if the defendant attend at the hour, he will not be warranted in 
 
 (e) 2 Saund. 107, n.(2); Gould v. tance from London than forty miles, in 
 
 Hanimersley, 4 Taunt. 148; Bridport which case fourteen days' notice is ne- 
 
 V. Jones, 3 Man. & G. 627, n. (a). cessary ; Blaaw v. Chaler, 6 Taunt, 
 
 (/) Chit. Archb. Prac. 709, 7th 445; Stevens v. Pell, 2 Dowl. 355. 
 
 edit.; Tidd's Piac. 589, 8th edit.; 2 The lime is computed exclusively of 
 
 Saund. 107 a. the first and inclusively of the last day, 
 
 (g) 1 Will. 4, c. 7, s. 1. So also unless the last be a Sunday, Christ- 
 
 when issued out cf the Court of Pleas mas day, Good Friday, vr a public 
 
 at Durham ; 2 & 3 Vict. c. 1 1, s 17. fast day ; Reg. Gen. H. 2 Will. 4, 
 
 (h) See ante, 78. r. 8. 
 
 (i) Ibid. (m) Foster «. Sraales, Barnes, 295 ; 
 
 {k) Rol. Abr. Process (G) 5. See Robinson d. Philij)S, Barnes, 296; Le 
 
 also Dyke v, Blakston, 2 Lord Raym. Marque v. Newman, Com. 551 ; Ison 
 
 1449. V. Fowen, Stra. 1142; and see 1 Bos. 
 
 (/) Unless when it is to be exe- & Pul. 363. 
 
 cuted in London or Middlesex, and (n) 1 iiarnard. 233. 
 tiie defendant lives at a greater dis-
 
 WRIT OF INQUIRY. 
 
 325 
 
 leaving the court at the expiration of the time mentioned in the chap. xm. 
 notice, for the sheriff may have prior business, which may detain 
 him beyond that time (o). The inquest is generally held before 
 the under-sheriff himself, but he may appoint a deputy for the 
 purpose of executing it ; such deputy should be regularly ap- 
 pointed by a written authority under the seal of office (p). The 
 sheriff cannot send his mandate to the bailiff of a liberty to exe- 
 cute a writ of inquiry (q). But the sheriff can only make one 
 deputy to hold the inquest; therefore, where two under-sheriffs 
 extraordinary were deputed to take and did take an inquest, 
 the court set aside the inquisition, saying, " if the high sheriff 
 may appoint two, he may appoint twenty or more ; if he can 
 exceed one, no line can be drawn to limit the number (r\" 
 Indeed, where the under-sheriff lives in the town where the 
 inquest is held, it is irregular to appoint a deputy ; in such case 
 the under-sheriff should execute it himself (5). Nor can the 
 writ in any case be executed by a deputy of the under-sheriffQ). 
 
 By the statute 6 Geo. 4, c. 50, s. 52, it is enacted, that no jurors, who 
 person shall be liable to be summoned or impannelled to serve befand how 
 as a juror, in any county in England and Wales, or in London, nonla^^^nd""^ 
 upon an inquest or inquiry, to be taken or made by or before ""'^^• 
 any sheriff or " coroner, by virtue of any writ of inquiry, or by 
 or before any commissioner appointed under the great seal, and 
 seals of Exchequer, or courts of a county Palatine, or of Wales, 
 who shall not be duly qualified according to that act to serve 
 as a juror on trials at nisi prius (u). Coroners holding inquests, 
 by virtue of their office, without writ, and sheriff's officers for 
 liberties, &c., or of cities and towns corporate, are excepted out 
 of this act. By section 53 of the same act, " if any man, duly 
 summoned and returned as a juror to serve on such inquest, 
 and shall not, after being three times openly called, appear and 
 serve as such juror, every such sheriff, or in his absence the 
 under-sheriff or secondary, are authorized and required (unless 
 
 (n) Williams v. Frith, Doug. 198. (n) For the qualifications of jurors, 
 
 (p) Davis V. Skyllins, Barnes 232. see post, chap. 17. When it appears 
 
 (q) Cora. Dig. Retorne (D) 3; that a common jury is an improper 
 
 Wisely v. Gunstone, 2 Rol. Abr. 461 ; one to assess the damages on a writ of 
 
 Hob. 83, S. C. inquiry, the court will direct the she- 
 
 (r) Denny i;.Trapnell,2 Wils. 378. riff to summon a good jury, from the 
 
 (s) 2 Wils. 379. special jury book; Price v. Williams, 
 
 (t) .Tones v. Williams, 2 Dowl. 5 Dowl. 160. 
 
 N. S. 938.
 
 326 WRIT OF INQUIRY. 
 
 CHAP. xiiT. some reasonable excuse shall be proved on oath or affidavit) 
 to impose such fine upon every man so making default as they 
 shall respectively think fit, not exceeding five pounds :" the 
 sheriff or under-sheriff shall make out and sign a certificate, 
 containing the christian and surname, the residence and trade 
 or calling of every man so making default, together with the 
 amount imposed and the cause of such fine ; and shall transmit 
 such certificate to the clerk of the peace for the county, &c., in 
 which every such defaulter shall reside, on or before the first 
 day of the quarter sessions next ensuing;" and such fines are to 
 be entered on the roll of the fines imposed at the quarter ses- 
 sions, and levied and applied in the same manner (m). 
 
 How exe- The under- sheriff, on the receipt of the writ, should verbally 
 
 or by writing order a bailiff to summon a jury to attend at the 
 time and place appointed for holding the inquest ; when a jury is 
 assembled, the under-sheriff, (or his deputy), after naming the 
 title of the cause, administers the proper oath to the jury (a;). 
 It is said to have been ruled that jurors on a writ of inquiry 
 cannot be challenged, but it is in the discretion of the sheriff to 
 admit such challenge if it appear to be a good cause of chal- 
 lenge (?/). The plaintiff's attorney or counsel then opens his 
 client's case, stating the evidence he will adduce in support of 
 his case ; and then he proceeds to call his witnesses, whom, after 
 being sworn, he proceeds to examine in support of his case ; or, 
 if the case admits it, he may address the jury without offering 
 any evidence. The defendant's attorney or counsel then ad- 
 dress the jury, and calls his evidence in mitigation of damages, 
 upon which evidence the plaintiff's attorney has a right to reply. 
 If it be necessary for the ends of justice, as to enable one of the 
 parties to adduce evidence, the sheriff may adjourn the inquest 
 to another day (2). The under-sheriff, or his deputy, then sums 
 
 (u) As to such fines, see post, chap. ties, and a true verdict give, according 
 
 17, and stat. 3 Geo. 4, c. 46. to the evidence. So help ynu God," 
 
 (x) The oath is usually to each To the others of the jury — "The same 
 
 juryman — " You shall well and truly oath which your foreman hath taken 
 
 try all such matters and things as shall on his part, you and each of you shall 
 
 be given in charge touching this writ well and truly observe and keep on 
 
 of inquiiy, and a true verdict give. your parts. So help you God." 
 So help yon God." The following form (i/j Anon. 3 Salk, 81, per Holt, C. 
 
 is given in fekirrow, p. 319 : — To the J. ; Anon. 6 Mod. 43. 
 foreman — " You, as foreman of this (s) Colman v. Mawby, Stra. 853; 
 
 jury, shall well and truly inquire and Markham v. Middleton, Stra. 1269. 
 assess the damages betvyeen the par-
 
 WRIT OF INaUIRY. ^27 
 
 up the whole case, stating the nature of the injury set out in chap. xm. 
 the pleadings and the evidence. If the direction by the under- 
 sheriflP as to the criterion by which the jury are to assess the 
 damages be wrong (a), or the jury find a verdict against evi- 
 dence (6), the court out of which the record issues will set aside 
 the inquisition, and grant a new writ of inquiry. 
 
 The under-sheriff or his deputy should only admit such per- Evidence, 
 sons as witnesses as are competent witnesses in a trial at nisi 
 prius. The witnesses, before giving their evidence, should be 
 sworn by the under-sheriff or by the crier (c). As the judg- 
 ment by default admits that the plaintiff has a cause of action as 
 stated in the declaration, all the plaintiff has to prove, or the 
 defendant is allowed to controvert, is the amount of the da- 
 mages (d) ; therefore it was holden that a lease mentioned in 
 the condition of a bond, set out by the defendant upon oyer, need 
 not be proved (e). So a bill of exchange or promissory note, 
 if declared upon, need not be proved or even produced (/). 
 And if a bill of exchange or promissory note, being produced, 
 appear to be upon a wrong stamp, the defendant cannot take 
 advantage of it (g) : if, however, it be necessary to prove 
 the instrument in order to show the amount of damages, (as 
 where, in setting it out, the sum is laid under a videlicet,) it 
 must be properly stamped, or it cannot be admitted (A). So the 
 defendant, in an action on a contract, will not be allowed, even 
 in mitigation of damages, to give evidence of fraud, or of any 
 other matter which would render the contract void ; for by 
 allowing judgment to go by default he has admitted the validity 
 of the contract (i). Neither will the defendant be allowed to 
 
 (a) See Gainsfordt). Carroll, 2 Bar. (e) Collins u. Rybot, 1 Esp. 157. 
 
 & Cress. 624 ; 4 Dowl. & Ry. 161 , (/ ) Lane v. MuUins, 2 Q. B. 254; 
 
 S. C. Lawrence v. Clark, 14 M. & W. 250 ; 
 
 (ft) Woodford v. Eades, Stra. 425. 3 Dowl. & L. 87, S. C. ; overruling 
 
 (c) The following is submitted as Green y. Hearne, 3T. R. 301 ; Anon,, 
 the proper oa'h : " The evidence that 3 Wils. 155. 
 
 you shall give to this inquest in the (g) De la Courtier v. Bellamy, 2 
 
 cause wherein A. B. is plaintiff and Show. 422. 
 
 C. D. defendant, shall be the truth, (h) King v. Beck, 8 Dowl. 735; 
 the whole truth, and nothing but the Cooper v. Blick, 2 Q. B. 924 ; Ban- 
 truth. So help you God." bury Union v. Robinson, 1 Dav. & 
 
 (d) De Gaillon v. L'Aigle, 1 Bos. M. 96. 
 
 & Pul. 368 ; East India Company v, (i) East India Company v. Glover, 
 
 Glover, Stra. 612; Thelluson p. Flet- Stra. 612; De Gaillon v. L'Aigle, I 
 
 cher, Doug. 315; Williams v. Cooper, Bos. & Pul. 368. 
 3 Dowl. 204.
 
 WRIT OF INQUIKY. 
 
 Damages, 
 how assessed 
 
 cnAP.xni. give in evidence, in mitigation of damages, any matter which 
 might have been made the subject of a set-ofF(/(;) ; or any fact 
 which would be a bar to the action if pleaded (Z). 
 
 In trespass, or any other action, where the damage actually 
 sustained by the plaintiff is the measure of the damages to be 
 given by the jury, if the plaintiff do not prove the nature of the 
 injury and the amount of the damage sustained by him, the jury 
 should give nominal damages merely; but where the jury are 
 to imply the amount of the damages from the nature of the in- 
 jury, the jury may give more than nominal damages, without 
 any evidence of the damage being given. Thus, in an action 
 for words imputing subornation of perjury to the plaintiff at the 
 execution of the writ of inquiry, the counsel for the plaintiff 
 offered no evidence, but merely addressed the jury, who gave 
 501. damages ; the court held that they had not estimated da- 
 mages upon erroneous grounds (m). If there be two or more 
 defendants who suffer judgment to go by default, the inquest 
 cannot, even in trespass, sever the damages (n) ; but where 
 there is judgment by default against one defendant, and judg- 
 ment upon demurrer against the other, the inquest may sever 
 the damages, because the defendants have severed in plead- 
 ing (o). 
 
 When the jury have agreed upon the damages, the under- 
 sheriff fills up the inquisition, and reads it to the jury, which the 
 under-sheriff', in the name of the high-sheriff and the jury, sign 
 opposite to their seals ; which inquisition (p) the sheriff keeps, 
 and he makes out another upon parchment, sealed with the seal 
 of office, and signed with the sheriff's name, and to this the 
 seals of the jury are affixed, but they do not sign it. The in- 
 quisition on parchment is then annexed to the writ of inquiry, 
 and the return is indorsed on the back of the writ in these 
 words : " The execution of this writ appears in a certain inqui- 
 sition hereunto annexed." 
 
 At the return of the writ of inquiry, a rule for judgment may 
 
 Return 
 
 jDdgmeDt 
 and execution 
 thereou. 
 
 (k) Carrulhersy. Graham, 14 East, 
 578. 
 
 (/) Leicester v. Walton, 2 Campb. 
 251 ; Speck v. Phillips, 5 M. & W. 
 279. 
 
 (m) Tripp v. Thomas, 5 Dowl. & 
 Ry. 276 ; 3 B. & C. 427, S. C. 
 
 (n) Sir John Heydon's case, 11 
 Rep. 5 ; Onslow v. Orchard, Stra. 
 422. 
 
 (o) Chapman V. House, Stra, 1140; 
 but see 11 Rep. 5, 7. 
 
 (p) See form, Appendix, cli. 13.
 
 WRIT OF INaUIRY. 329 
 
 be given, costs taxed, final judgment signed, and execution chip, xin. 
 issued forthwith, unless the sheriff oi* other officer, before whom 
 the same may be executed, shall certify under his hand upon 
 such writ that judgment ought not to be signed until the defend- 
 ant shall have had an opportunity to apply to the court to set 
 aside the execution of such writ, or one of the judges of the said 
 court shall think fit to order the judgment to be stayed until 
 a day to be named in such order : provided always, that in case 
 the signing of judgment on such writ shall be postponed by rea- 
 son of such certificate or order, or by the choice of the plaintiff 
 or otherwise, and judgment shall be afterwards signed thereon, 
 such judgment shall be entered of record as of the day of the 
 return of such writ, unless the court shall otherwise direct (q). 
 
 Before the stat. 3 & 4 Will. 4, c. 42, all assessments of da- Writ of in- 
 raages in actions upon bonds, or for any penal sum for non- s'&o Win. 3, 
 performance of any covenants or agreements in any deed or 
 writing, under the stat. 8 & 9 Will. 3, c. 1 !, in case where there 
 was judgment for the plaintiff on default or by demurrer, could 
 be made only before the justices of assize or nisi prius for the 
 county in which the venue was laid, for which purpose a writ 
 issued to the sheriff of that county to summon a jury to appear 
 before the justices of assize or nisi prius of that county to in- 
 quire into the truth of the several breaches suggested on the 
 roll, and to assess the damages that the plaintiff should have 
 sustained thereby. But by the stat. 3 & 4 Will. 4, c. 42, s. 16, 
 after reciting that it would lessen the expenses of trials and 
 prevent delay if such writs of inquiry were executed before the 
 sheiiff of the county where the venue is laid, it is enacted, that 
 all writs issued under and by virtue of the statute 8 & 9 Will. 3, 
 c. 11, shall, unless the court where such action is pending, or 
 a judge of one of the superior courts, shall otherwise order, 
 direct the sheriff of the county where the action shall be brought 
 to summon a jury to appear before the said sheriff, instead of the 
 justices or justice of assize or nisi prius of that county, to inquire 
 of the truth of the breaches suggested, and assess the damages that 
 the plaintiff shall have sustained thereby, and shall command 
 the said sheriff to make return thereof to the court from whence 
 the same shall issue, at a day certain in term or vacation in such 
 
 (q) 1 Will. 4, c. 7, s. 1. See Reg. Gen. H. 2 Will. 4, r. 67.
 
 330 
 
 WRIT or INQUIRY. 
 
 CHAP. XIII. writ to be mentioned ; and such proceedings shall be had after 
 the return of such writ as are in the said statute in that behalf 
 mentioned, in like manner as if such writ had been executed 
 before a justice of assize or nisi prius. 
 
 By the 19th section of the same statute, the provisions of the 
 1 Will. 4, c. 7, s. 1 (r), are extended to these writs of inquiry. 
 
 As to the fees chargeable by the sheriff and his officers on 
 a writ of inquiry, see ante, p. 103. 
 
 The liability of a sheriff to an attachment or an action for any 
 misfeasance is the same on a writ of inquiry of damages as on 
 any other writ. It is laid down, that if the sheriff return that 
 the inquest or jury found no damages, he shall not be amerced 
 for this default of the jury ; for the sheriff shall not be amerced 
 but where he returns the writ falsely or insufficiently of himself, 
 whereas here he returned it as he presented it(s). 
 
 Fees. 
 
 Liabiliiy of 
 the sheriff. 
 
 (r) Ante, ^29. 
 
 (s) Bro. Retorne, 20 ; Filz. Retorne, 66 ; 5 Rep. 32, 33.
 
 ( 331 ) 
 
 CHAPTER XIV. 
 
 WRIT OF TRIAL. 
 
 Of the Writ. — When and how executed. — Return. — New Trial, 
 8^c, — Judgment and Execution. — Sheriff's Fees. 
 
 By the statute 3 & 4 Will. 4, c. 42, s. 17, it is enacted, that in Writ of trial, 
 any action depending in any of the superior courts for any debt 
 or demand in which the sum sought to be recovered, and in- 
 dorsed on the writ of summons^ shall not exceed twenty pounds, 
 it shall be lawful for the court in which such suit shall be de- 
 pending, or any judge of any of the said courts, if such court or 
 judge shall be satisfied that the trial will not involve any difficult 
 question of fact or law, and such court or judge shall think fit 
 so to do, to order and direct that the issue or issues joined shall 
 be tried before the sheriff of the county where the action is 
 brought, or any judge of any court of record for the recovery 
 of debt in such county, and for that purpose a writ shall issue 
 directed to such sheriff or judge, commanding him to try such 
 issue or issues by a jury to be summoned by him, and to return 
 such writ, with the finding of the jury thereon indorsed, at a day 
 certain in term or in vacation, to be named in such writ ; and 
 thereupon such sheriff or judge shall summon a jury, and shall 
 proceed to try such issue or issues. 
 
 The 18th section enacts, that at the return of any writ for the 
 trial of such issue or issues as aforesaid, costs shall be taxed, 
 judgment signed, and execution issued forthwith, unless such 
 sheriff, deputy, or judge before whom such trial shall be had, 
 shall certify under his hand upon such writ that judgment ought 
 not to be signed until the defendant shall have had an oppor- 
 tunity to apply to the court for a new inquiry or trial, or a judge 
 of any of the said courts shall think fit to order that judgment 
 or execution shall be stayed till a day to be named in such order; 
 and the verdict of such jury, on the trial of such issue or issues, 
 shall be as valid and of the like force as a verdict of a jury at
 
 crises 
 
 332 WRIT OF TRIAL. 
 
 CHAP. XIV. nisi prius ; and the sheriff or his deputy, or judge presiding at 
 the trial of such issue or issues, shall have the like powers with 
 respect to amendment on such trial, as are hereinafter given to 
 judges at nisi prius («). 
 
 In what These enactments apply only to actions for debts or pecuni- 
 
 ary demands, where both the sum really sought to be recovered, 
 and the sum indorsed on the writ, do not exceed 201. An 
 order for a trial before the sheriff cannot be obtained, therefore, 
 in an action of tort(i), nor in an action for unliquidated damages 
 for breach of contract (c). If the action is brought substantially, 
 although not directly, for a debt limited to an amount not ex- 
 ceeding 20^., it is sufficient (c?). If the writ be sued out and 
 indorsed for an amount above 20/., although less is really due, 
 the judge has no power to make the order, even though the 
 plaintiff be willing to waive the excess (e). It appears at one 
 time to have been considered, that by consenting to the order 
 and appearing at the trial, the defendant waived any objection to 
 the jurisdiction of the sheriff (/") ; but it seems now to be agreed 
 that the parties cannot, by their consent, give him jurisdiction 
 in a case not triable by him under the statute (g). Where the 
 issue is not according to the form given by the rule of H. T. 4 
 Will. 4 (A), the court will give the plaintiff leave to amend on 
 payment of costs (j) ; and such amendment may be made by the 
 court or a judge at any stage of the proceedings, even at or 
 after the trial (j). If, however, such amendment be not made, 
 the variance from the form is a ground for arresting the judg- 
 ment (A;). But the defendant will not be entitled to set aside 
 the proceedings after verdict, on the ground that irrelevant 
 matter is introduced into the issue which is not in the writ, the 
 
 (a) Sections 23, 24. On this sub- W. 55. 
 
 ject see Cliit. Arclib. Prac. 7ih ed. (g) See Smith v. Fkown, 2 M. & 
 
 281 ; Jervis's Rules, 202 et seq. W. 851 ; Allen v. Pink, 4 M. i< W. 
 
 (h) Watson v. Abbot. 2 C. & M. 140. 
 
 150; 2 Dowl. 215; Smith v. Jirown, (/t) Append, ch. 14. 
 
 2 M. & W. 851 ; 5 Dowl. 736, S. C. (i) Attwill v. Baker, 2 M. & VV. 
 
 (c) Jacquot v. Boura, 5 M. & W. 272; 3 Dowl. 462. 
 155 ; 7 Dowl. 331 , S. C. ( j) Cox v. Painter, I N. & P. 581 ; 
 
 (d) Price v. Morgan, 2 M. & W. Percival v. Connell, 3 Bing. N. C. 
 53; Allen v. Pink, 4 M. & W. 140; 877; 5 Scott, 191 ; 6 Dowl. 68, S. 
 6 Dowl. 668, S. C. C. 
 
 (e) Trotter v. Bass, 1 Hodg. 23 ; a) Handford v. Handford, 6 Dowl. 
 see Burleigh v. Kingdom, 2 Dowl. 473 ; see Lycett v. Tenant, 4 Bing. 
 351. N. C. 168; 5 Scott, 479; 6 Dowl. 
 
 (/) See Price v. Morgan, 2 M. & 436, S. C.
 
 WRIT OF TRIAL. 333 
 
 plaintiff having given notice before the trial that he does not chap, xiv, 
 intend to proceed with such irrelevant matter at the trial (k). 
 Where the date of the writ of summons is untruly stated in the 
 writ of trial, it is a ground for setting aside the verdict, at 
 least, if the defendant have not appeared at the trial (/). 
 
 The writ is to be directed to the judge of the court of record To whom 
 in those places in which there is a court of record, and to the 
 sheriff where there is no such court (?/?). It seems it cannot go 
 to the coroner (n). It is engrossed on parchment and sealed, Form, &c. 
 but not signed (o), and then left, together with the rule or order 
 annexed to it, at the sheriff's office a reasonable time (two days 
 at least) before the day of trial. It must be resealed as in 
 other cases Qi). If it be to assess damages on demurrer (as it 
 may be), it must be framed accordingly (q). Blanks must not 
 be left in it (r). 
 
 If the cause be tried, even by adjournment, on a day sub- Whenes- 
 sequent to the return day of the writ of trial, it seems that it is 
 a mis-trial (s). In one case, however, it was held that the 
 defendant waived the objection by appearing at the trial (f). 
 An alteration of the record, by the insertion of a different day 
 of trial, will not render a resealing of the writ necessary, 
 except where the alteration is to a day subsequent to the return 
 of the writ (?<). 
 
 The same notice of trial must be given as in a cause at Nisi 
 Prius(a;). 
 
 The writ may be executed by the under-sheriff, or other How ex- 
 deputy of the sheriff, but not by the deputy of the under- ""'«''• 
 sheriff (y). The sheriff, &c., has the same power as to the 
 
 (/c) Hiam v. Smith, 6 Dowl. 710. (9) Fryer v. Smith, 1 Dowl. & L. 
 
 (/) White V. Farrer, 2 M. & W. 80. 
 
 288 ; S. C. nom. Wight v. Ferrers, 3 (r) Dennett v. Harding, 2 Dowl.& 
 
 Dowl. 463; Whipple v. Manley, 3 L. 488. 
 
 M. & W. 432; 5 Dow!. 100; Far- (s) Mortimer t;. Preedy, 3 M. & W. 
 
 wig V. Cockerton, 3 M. & W. 169; 602; 6 Dowl. 544. 
 
 Ashburton v. Sykes, 1 Dowl. & L. (() Sherman v. Tinsley, 4 Scott, 
 
 133. 286; see Pinkney v. Booth, 1 Dowl. 
 
 (m) Clarke v. Manner, 4 M, & N. S. 421 ; ante, 78. 
 
 Scott, 171. (u) Chandler V. Bezward, 2 M. & 
 
 (n) Levy v. Magnay, 10 M.5t W. W. 205 ; 5 Dowl. 311. 
 
 664. (j) Charnock v. Smith, 3 Dowl. 
 
 (0) Reg. Gen. H. 4 Will. 4, r. 19. 607; see Dignam v. Ibbotson, 3 M. 
 
 (p) Ashburton v. Sykes, 1 Dowl. ^< W.431. 
 
 & L. 133. (v) Jones v. Williams, 2 Dowl. N. 
 
 S. 938 ; see ante, 325.
 
 334 WRIT OF TRIAL. 
 
 CHAP. XIV. general conduct of the trial as a judge : thus, he may postpone 
 the trial if he see cause (z) ; he may nonsuit the plaintifF(a) ; 
 he may lay down a rule that no person but a barrister or attorney 
 shall appear as the advocate (b). But he cannot certify under 
 any statute, or under a Court of Requests Act, to deprive the 
 plaintiff of costs (c) ; but it seems that it would be a sufficient 
 answer to an application for the judge's order for a writ of trial, 
 that the amount in dispute is within the limit of a Court of 
 Requests Act(c?). He has no power to refer the cause to 
 arbitration (e). Where a bill of exceptions was tendered to the 
 direction of an under-sheriff, which he would not receive, the 
 court refused to interfere to stay judgment and execution (y). 
 
 Jury. The jury to try the issue must be such as are designated in 
 
 the writ. Thus, where the writ was directed to the recorder of 
 the borough of N., directing him to summon twelve lawful men 
 of his county to try, &c., and the cause was tried by juries re- 
 sident within the borough and not on the county list, the trial 
 was held irregular {g). But such an irregularity is waived by 
 the consent of the parties to the jury impannelled(A). And it is 
 not essential that the jury should come from the county ; they 
 may be taken from a borough or other limited jurisdiction, 
 where the writ is directed to a judge of an inferior court of re- 
 cord there (i). 
 
 Reiurn. The Statute directs the return to be on " a day certain in term 
 
 or vacation, to be named in such writ," the time not being 
 further specified. In practice, it is usually made returnable in 
 the term in which the trial is had, where there is sufficient of 
 the term remaining ; and when the trial is had in vacation, on 
 the same or the following day (k). 
 
 New trial, The courts havc laid down a rule that a new trial shall not be 
 
 &e. 
 
 (z) Pouraker v, Jackson, 2 Jurist, 721 ; Harrison v. Greenwood, 3 
 
 329. Dowl. & L. 353. 
 
 (a) Watson V. Abbott, 2 Dowl. (/) White v. Hislop, 4 M. & W. 
 
 215. 73; 6 Dowl. 693. 
 
 (6) Tribe v. Wingfield, 2 M.& W. (g) Farmer v. Mountfort, 8 M. & 
 
 128. W. 266. 
 
 (c) Wardroper v. Richardson, 3 (/t) Pryme v. Titchmarsh, 10 M. 
 
 Nev. & M. 839; 1 Ad. & E. 75; & W, 605. 
 
 Pritchard v. M'Gill, 2 M. & W. 380. (O Farmer v. Mountfort, 9 M. & 
 
 {(l) Jones V. Barnes, 2 M. & W. W. 100. 
 
 313; 3 Dowl. 455; Pritchard t). (?c) Billing u. Railton, 2 Dowl. & 
 
 M'Gill, supra. L. 771. 
 
 (e) Wilson v. Thorpe, 6 M. & W.
 
 WRIT OF TRIAL, 335 
 
 granted in cases tried under a writ of trial, on the ground of the chap. xrv. 
 verdict being against the evidence, where the damages do not 
 exceed 51.(1). On motion for a new trial, the notes of the 
 sheriff or his deputy are not conclusive on the parties like those 
 of a judge, but may be supplied or varied by affidavits of what 
 took place at the trial (in). Although no application have been 
 made to the sheriff, &c., to stay the signing of judgment, and 
 judgment have been signed and execution issued in vacation, 
 the defendant may apply to the court in the following term to 
 have a suggestion entered on the roll to deprive the plaintiff of 
 costs under a Court of Requests Act (n) : and the circumstance 
 of the sheriff's having refused to certify does not preclude a 
 party from applying for a new trial within the proper time ; and 
 upon such application the court will judicially notice the re- 
 cord (o). The plaintiff may tax his costs, sign judgment, and 
 sue out execution immediately on the return of the writ, unless 
 prevented by certificate or order under sect. 18 (p). And by 
 sect. 19, all the provisions of the 1 Will. 4, c. 7, s. 1 (q), are 
 extended to judgments and executions upon writs for the trial 
 of issues under this act, so far as they are applicable thereto. 
 
 As to the sheriff's fees on writs of trial, see ante, p. 105. Fee?. 
 
 (0 Williams V. Evans, 2 M. & W. & M. 219. 
 
 220; Lyddons v. Combes, 5 Dowl. (o) Angel v. Ihler, 8 M. & W. 
 
 560. 600. 
 
 (m) Lilley v. Johnson, 2 M. & W. (p) Nichollsr. Chambers, 2 Dowl. 
 
 386. 693. 
 
 (h) Johnson v. Beale. 5 M. & (?) Ante, 329. 
 W. 276; see Baddley v. Oliver, 1 C.
 
 ( 33G ) 
 
 CHAPTER XV. 
 
 OF THE EXECUTION OF PROCESS IN REAL ACTIONS (a). 
 
 Sect. I. — Of Mesne Process. — Summons, Proclamation. — Attach- 
 ment and Distress Infinite. — Grand Caj^e. 
 II. — Of the Writ of View. — Trial : Grand Assize. 
 III. — Execution. — Habere facias seisinam. 
 
 Summons. The pvocess in real actions, to compel the tenant to appear, 
 is of various kinds, according to the nature of the particular 
 action. It is either — 1. Summons and grand cape, as generally 
 in every prcecipe quod reddat ; 2. Summons, attachment, and 
 distress infinite, as generally in every prcecipe quod faciat, or 
 action in the realty; 3. Summons and resummons, as in assize 
 of morl d' ancestor, juris utrum, and darrein presentment ; or 4. 
 Attachment, as in an assize of novel disseisin and nuisance (6). 
 
 The original writ in all real actions, with one or two excep- 
 tions, as in assize of novel disseisin, or in a writ of deceit, is a 
 writ of summons, by which the sheriff is commanded to summon 
 by good summoners the tenants to appear in court according to 
 the requisition of the writ, and that the sheriff shall have the 
 names of the summoners at the return of the writ. 
 
 Howexe- Upon the receipt of the writ, as in other cases, the sheriff 
 
 must make his warrant to two bailiffs at least ; and the sum- 
 
 (a) Although, by the statute 3 & 4 brought within the period during 
 
 "Will. 4, c. 27, s. 36, all real and mixed which, by virtue cf the provisions of 
 
 actions were abolished from the 31st that act, an entry might have been 
 
 December, 1834, (with the exception made upon the land, if the right of 
 
 of writs of right of dower, writs of entry had not been so taken away, it 
 
 dower unde nihil hcibet, quare impedit, follows that cases still remain in 
 
 and ejectment,) yet, inasmuch as by which, for nearly twenty years to 
 
 the provisions of the 38th section, come, a real action may be brought 
 
 whenever, on the 1st June, 1835, any for the recovery of land or rent. This 
 
 person whose right of entry to any chapter has therefore been retained, 
 
 land was taken away by descent cast, (6) Roscoe on Real Actions, 146 ; 
 
 discontinuance, or warranty, might Finch's Luw, 343, 4, 5j Booth, 7; 
 
 maintain a real action in respect of Com. Dig. Process, 
 such land, the same may still be
 
 SUMMONS. 
 
 337 
 
 moners should he liberi and legates homines, so that they may chap. xv. 
 
 give evidence of the fact of summons, if it be desired (c). The 1_1_ 
 
 warrant repeats the mandatory part of the writ, viz. it directs 
 tlie bailiff to command the tenant to render the land(rf); and 
 unless he shall do so, to summon him to appear at the return of 
 the writ, and it further directs the bailiffs, after summons made, 
 to make proclamation according to the form of the statute (e). 
 On receiving the warrant, the bailiffs must prepare a summons, 
 which pursues the form of the warrant, and must serve it on the 
 tenant on the land (/). 
 
 It has been said that in practice no summons is now actually 
 made in any real action, though the names of summoners are of 
 course returned by the sheriff upon the writ {g). But this 
 practice has been shown to be open to so many objections, that 
 it appears to be essentially necessary that the summons should 
 be actually and formally served {h). As to the time when the 
 summons should be made, it ought to be served before sunset(i). 
 And the summons must be made fifteen days before the return- 
 day of the writ, and not merely fifteen days before the quarto 
 die postijc). This is provided by the stat. 18 Edvv. 1, c. 15, 
 which, in affirmance of the common law, declares that in sum- 
 mons and attachment in pleas of land, the summons and attach- 
 ment shall contain the term of fifteen days(0- As to the place 
 where the summons should be made, it is said that in all actions 
 for the recovery of land, the summons ought to be in terrd 
 petitd(ni); if, however, the tenant appear, it is immaterial where 
 he was summoned (n). Summons upon the land in demand 
 
 (c) Roscoe, 147; Dalt. 153; 42;Dalt. 151. 
 
 Booth, 4. For the due service of the {k) Brooke's Abr. Ley Gager, 57 ; 
 
 summons must be proved by the sum- Booth, 24 ; Roscoe, 147. 
 
 moners ; and when a trial is by wit- (/) Fifteen days, according to Sir 
 
 nesses, the affirmative must be proved Edward Coke, were accounted a rea- 
 
 by two or three witnesses ; Co. Litt. 6. sonable time, because a diela, or day's 
 
 (d) By this is meant a render in journey, being twenty miles, that space 
 court, and not in pais ; Beeclier's of time was sufficient to enable the 
 case, 8 llep. 61b; Keilw. 116b; person summoned to make his appear- 
 Booth, 7. ance in court on the day given, in 
 
 (e) See Form, post, Append, chap. whatever part of England he might 
 14, s. i. reside; 2 Inst. 567. 
 
 (/) Id. ibid. (m) Com. Dig. Process (D 3); 
 
 (g-) Booth, 5; note to 2 Saund. Vin. Ab. So.nmons (B) ; Finch's 
 
 45 c. Law, 344; Dalt, 152. 
 
 (/t) Roscoe, 147. {n) Dalt. 152; Bro. Sommons, 7 ; 
 
 (i) Green v. Arderne, Cro. Eliz. Roscoe, 148.
 
 338 
 
 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV. 
 SECT. I. 
 
 Proclama- 
 tion. 
 
 seems to be sufficient, whether the tenant, or any one for him, 
 be there or not (o) ; and a prayer in aid may be summoned in 
 the land demanded, ahhough it is not his freehold (p). But the 
 sheriff cannot summon the party by a rent service, rent charge, 
 common, reversion, or the like, for the soil is another man's 
 freehold (g). Where the lands lie in several towns in one county, 
 it seems that summons in one town is sufficient (r). 
 
 It has been suggested, that, to avoid all objections, the most 
 prudent mode of serving the summons upon a tenant in a real 
 action is to serve him personally with the summons on the land 
 demanded, or if he be not met with on the land, to summon him 
 personally, and also to make a summons upon the land, by 
 erecting a stick or wand, and affixing to it a copy of the sum- 
 mons (s) ; and it will be proper to read over the summons to 
 the tenant on serving him with the copy, for the summoners 
 ought properly to name the demandant, the land in demand, and 
 the day of the return (t). In summoning a defendant on a vvrit 
 of quare impeditf it is said that the summons may be either at the 
 church door, or on the person of the defendant (u). 
 
 For the purpose of avoiding secret summonses, and in order 
 to give convenient notice to the tenants of the lands, by the 31 
 Eliz. c. 3, s. 2, it is enacted, " That after every summons upon 
 the land, in any real action, fourteen days, at the least, before 
 the day of the return thereof, proclamation of the summons 
 shall be made on a Sunday, immediately after divine service 
 and sermon, if any sermon there be, and if no sermon there be, 
 then forthwith after divine service, at or near to the most usual 
 door of the church or chapel of that town or parish where the 
 land whereupon the summons was made doth lie, and proclama- 
 tion so made as aforesaid shall be returned together with the 
 names of the summoners, and if such summons shall not be 
 proclaimed according to the tenor and meaning of this act, then 
 no grand cape to be awarded, but alias and pluries summons as 
 the case shall require, until a summons and proclamation shall 
 be duly made and returned according to the tenor and meaning 
 
 (o) 2 Saund. 43, n. ; 2 Inst. 253. 
 
 (p) Dalt. 152; Bro. Abr. Sommons 
 in terra, 16 ; Rol. Abr. Sommons 
 (B)8. 
 
 (9) Dalt. 151 ; Bro. Retorne, 124^ 
 Ibid, Sommons, 14. 
 
 (r) Allen v. Walter, Hob. 133. 
 
 (s) Roscoe, 148. 
 
 (0 Dalt. 151. See also 3 Chitty's 
 PI. 624, 5. 
 
 (u) 1 Brownl. 158; Booth, 226; 
 but see Roll. Abr. Summons (A) 1.
 
 SUMMONS. 
 
 339 
 
 of this." If there be no church, it is said that the summons at chap. xv. 
 the common law is sufficient (x) ; and so also when there is no ^^^^' '* 
 sermon or prayers between the delivery of the writ to the sheriff 
 and the return, the summons at common law is sufficient (y). 
 And if a parish extend into two counties, and the land is in one 
 county and the church in the other, the proclamation should be 
 made in that church by the sheriff of the county in which the 
 land lies (z). If the lands lie in several parishes, it seems that 
 a proclamation made at the door of the church of one parish is 
 sufficient within the act (a). 
 
 When the summons has been served, which, as we have seen. Return to the 
 must be at least fifteen days before the return-day of the writ, ^"'""'*'"'- 
 the sheriff should return the writ, with the names of the pledges 
 and summoner indorsed. The summoners are the persons who 
 have actually made the summons, but the pledges are John Doe 
 and Richard Roe (6). Any matter of excuse, of course, may 
 be returned ; thus formerly it was a good return to the summons, 
 that the sheriff did not summon the tenant on account of the 
 demandant or plaintiff not having pledges (c); or he may return 
 tarde(d): or that no one came to show the land to the sheriff (e). 
 But it is not a good return to say that the tenant has yielded 
 the lands (/). 
 
 The sheriff should also return that he has made proclamation Remm that 
 
 « , ,, ,. 7 /. r- 1 ti / \ proclamation 
 
 or ttie summons " according to the form of the statute {g), has been 
 without more ; but a return that the sheriff has proclaimed 
 *' the contents of the writ" is insufficient, because he must pro- 
 claim that he made summons of the land (h). If the proclama- 
 tion of the summons be particularly set out in the return, it 
 must appear then that the land lies in the parish in which the 
 proclamation has been made, and that the proclamation was 
 made after the summons (i). If the sheriff return that the pro- 
 clamation of the summons was made at the church door, when 
 
 (x) Roscoe, 149. (d) Roscoe, 150. 
 
 (2/) Anon. Anders, 278; Vin. Abr. (e) Ibid. 
 
 Summons (C 3). (/) Bro. Abr, Retorne, 84; Ros- 
 
 (s) Ibid.; Ragister's case, Cro. coe, 150. 
 
 Eliz, 472 ; Roscoe, 149. (g) See Form, post, Append, c. 14, 
 
 (a) Allen v. Walter, Hob, 133 ; 1 s. \; 2 Saund. 43 a, note, 
 
 Brownl, 126, S. C. (h) Allen v. Walter, Hob. 133 ; 1 
 
 (6) See Return, post, Append, c. Brownl. 126, S. C. 
 
 14, s. 1. (i) Furnis d. Waterhouse, 1 Mod. 
 
 (c) Roscoe, 150; Booth, 6; Off. 197. 
 Brev. 357. 
 
 z 2 
 
 made.
 
 340 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV. in fact it was not so made, it is not error (/c). The mode of 
 
 SECT. I. 
 
 taking advantage of such irregularity is by moving to set aside 
 the grand cape, or the judgment by default (/). If the sheriff 
 return the tenant summoned, when in fact he was not sum- 
 moned, the party has several remedies : — First, by waging his 
 law of non-summons, by which, if he succeed, the writ abates: 
 secondly, the court, under such circumstances, would set aside 
 a judgment by default; thirdly, the tenant may have a writ of 
 deceit to recover the land ; fourthly, an action against the sheriff 
 for a false return ; as the law will not suffer the tenant to lose 
 his lands, unless he has received legal and formal notice of the 
 demandant's claim (w). 
 Wrii of In many writs in the realty which are not properly for the 
 
 when it lies', demand of land, as in waste, quod permittat, secta ad molendi- 
 num, &c., tlie process is by summons, attachment, and distress 
 infinite {n). The attachment issues on the default of appearance 
 of the tenant either on the summons, or on his default on the 
 day of the adjournment of the essoign (o). The writ of attach- 
 ment commands the sheriff that he attach the defendant by 
 gages and safe pledges that he be, &c. 
 How exe- The modc of executing the attachment is for the sheriff, on 
 
 ciued. . . '^ 
 
 the receipt of the writ, to proceed and attach the defendant, 
 which he ought either to do by attaching his goods (p), or by 
 compelling him to find pledges for his appearance («/) ; or, as it 
 seems, by merely summoning him to appear, without attaching 
 him either by pledges or goods (r). If the sheriff attached 
 goods, he did not return pledges (s). Under the writ of attach- 
 ment, the sheriff could only take the moveable goods of the de- 
 fendant, and not a chattel real, or a thing fixed to the freehold, 
 nor the horse upon which he was riding, nor the apparel with 
 which he was clothed (t). And the sheriff ought to have re- 
 turned the particular goods seized, and not chattels to the value 
 of 10^. ; for if the defendant does not appear, the goods at- 
 tached are forfeited (m), and he ought not to have taken goods 
 
 (k) Collett V. Marsh, Cro. Eliz. (r) Ibid. 
 
 371 , 397 ; Moor, 197, 349, S. C. (s) Com. Dig. Process (D) 6. 
 
 (0 Roscoe, 149. (t) Roscoe, 151; Vin. Abr. At- 
 
 (w) Roscoe, 147. tachment (B) ; 2 Inst. 254. 
 
 (?j) Roscoe, 151. (u) Lawrence v. Netheral, Cro. 
 
 (o) Ibid. Eliz. 13; Dyer, 199 a, S. C. ; Wells 
 
 (p) Dalt. 155 J Roscoe, 151. v. Wigon, Carter, 224 ; and see Kitch. 
 
 (q) Dalt. 155. on Courts, 157.
 
 ATTACHMENT AND DISTRINGAS. 341 
 
 of great value, but a single thing sufficient to make the defend- chap. xv. 
 
 ant appear (a-). After taking the goods, the sheriff is bound to -_!^ ' 
 
 keep them safely, and not use them, for they are to be restored 
 to the tenant if he appear (?/). Or the sheriff may leave the 
 goods with the owner, taking an obligation of the owner of the 
 goods for the delivery thereof, if the owner shall make default 
 of appearance (2). The attachment should be made fifteen days 
 before the return day (a). If the party be not summoned and 
 attached, it is error, and the officer shall be amerced (6). 
 
 On default of appearance on the attachment at the common Disiringas. 
 law, a writ of distringas may issue, which commands the sheriff 
 to distrain the goods of the tenant or defendant until he ap- 
 pears (c) ; and by the statute of Westm. 2, c. 45, it was enacted, 
 that if the tenant, after the first attachment returned, make de- 
 fault, the grand distress shall be awarded. By the statute of 
 Marlbridge, c. 7, in a writ of award, in which the process was 
 summons, attachment and diitress infinite, a proclamation is di- 
 rected to be made; and if the defendant do not appear, judg- 
 ment may be given against him. And by the statute Westm. 2, 
 c. 14; in a writ of waste, if the tenant make default at the 
 return of the distringas, a writ of inquiry of waste done may 
 issue, upon the return of which, judgment may be given. 
 
 The sheriff may distrain either the moveable goods of the de- 
 fendant or the issues of his land; and for this purpose he issues 
 his warrant to two bailiffs, who are to execute the distringas. 
 The sheriff may either keep the goods so distrained, or take 
 money or an obligation for the appearance of the defendant or 
 tenant, according to the exigency of the writ. The return of 
 the sheriff is, that he has distrained the defendant by his lands 
 and chattels, to which he adds the amount of the issues and the 
 names of the manucaptors(<:Z). The issues returned must be 
 reasonable (e). Where the sheriff returned mandavi ballivo, 
 without also returning that the defendant had no issues in 
 his bailiwick, the return was held bad, and the sheriff was 
 amerced (/). 
 
 (a) 2 Lutw. 1457. (rf) Dalt.223. 
 
 {y) Dalt. 156. (e) Ihid. 
 
 (z) Ibid. If) Bro. Retorn, 23. By the sta- 
 
 (a) Dalt. 157 ; Co. Litt. 134 b ; lute 51 Geo. 3, c. 124, continued by 
 
 Bro. Attach. 1, 5, 6. the statute of 57 Geo. 3, c. 101, but 
 
 (6) Ualt. 157. which act has expired, and has not 
 
 (c) Fitz. 59 b; Dalt. 160. been renewed, as far as I am aware,
 
 342 
 
 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV 
 SECT. I. 
 
 If the tenant, having been duly summoned, neglects to ap- 
 pear on the return of the writ to cast an essoign, or in case of 
 Grand cape, an essoign being cast, neglects to appear on the adjournment 
 day of the essoign, the next process for the demandant is a 
 judicial writ of grand cape in manum nostrum; by which writ 
 the sheriff is commanded that he take into the king's hands, by 
 the view of good and lawful men in his county, the lands, &c., 
 for the default of the tenant, and make known the day of the 
 taking to the justices of Westminster ; and also that he sum- 
 mon by good summoners the tenant, that he be before the jus- 
 tices on the return day, to answer to the principal plea, and to 
 show wherefore he was not before the justices according to the 
 former summons ; or if the default be for not appearing on the 
 adjournment day of the essoign, " To show wherefore he did 
 not keep the day given him by reason of his essoign, before the 
 
 the method of procuring an appear- 
 ance in which the proceedings were 
 summons, attacliment and distress, 
 was, for the period it was in force, 
 completely altered. By that act it 
 was provided, that when the proceed- 
 ing was by summons and attachment 
 in any action against any person not 
 having privilege of parliament, no writ 
 of distringas should issue for default 
 of appearance ; but the defendant 
 should be served personally with the 
 summons or attachment, at the foot 
 of which should be wiitten a notice, 
 informing the defendant of the intent 
 and meaning of such service, as fol' 
 lows : " To C. D. You aie served 
 with this process at the suit of A. B., 
 to the intent that you may appear by 
 your attorney in his Majesty's court 
 
 of at VVestminsler, at the return 
 
 hereof, being the day of , in 
 
 order to your defence in this action : 
 and take notice, that in default of your 
 appearance, the said A. B. will cause 
 an appearance to be entered for you, 
 and proceed thereon, as if you had 
 yourself appeared by your attorney." 
 In cases where it was shown to the 
 court, or to a judge in vacation, that 
 this could not be served, the court or 
 judge may allow the plainiifF to sue 
 out a writ of distringas to compel an 
 appearance ; at the time of serving 
 such writ of distringas, the officer shall 
 
 serve on the defendant, or if he be not 
 to be found, leave at the place of his 
 abode a written notice in the follow- 
 ing form : 
 
 " In the court of , between 
 
 A. B. plaintiff, and C. D. defendant. 
 Take notice, tliat I have this day dis- 
 trained upon your goods and chattels 
 for the sum of forty shillings, in con- 
 sequence of your not having appeared 
 by your attorney in the said court at 
 the return of a writ of , return- 
 able there on the day of ; 
 
 and that in default of your appearing 
 to the present writ of distiingas at the 
 
 return thereof, being the day of 
 
 , the said A. B. will cause an 
 
 appearance to be entered for you, and 
 proceed thereon as if you had your- 
 self appeared by your attorney." 
 E. F. 
 (the name of the sheriff's officer.) 
 
 To C. D., the above named defend- 
 ant. 
 
 Upon an affidavit of the personal 
 service of such summons or attach- 
 ment, and notice written on the foot 
 thereof as aforesaid, or of the due 
 execution of such distringas, it may 
 be lawful for the plaintilf to enter a 
 common appearance for the defendant, 
 and to proceed thereon as if the de- 
 fendant himself had entered an ap- 
 pearance for himself. See Tidd's 
 Prac. Ill, 8th edit.
 
 GRAND CAPE. 
 
 343 
 
 justices at Westminster, &c., and that the sheriff have there the chap. xv. 
 names of those by whose view he shall do this, the names of the _ s^^'^' ^' _ 
 summoners, and the writ(^)." 
 
 The sheriff's duty in executing the grand cape is, first, by J^°^"*" 
 the view of honest and lawful men of his county, to seize the 
 tenements into the king's hands ; secondly, to summons the 
 tenant. For this purpose, the sherifi' should make his warrant 
 to the bailiff (/<) to execute the writ : in the execution thereof 
 the bailiff should take with him four inhabitants of the county, 
 two as viewers, and two as summoners. The process of taking 
 the tenements into the king's hands is a mere formal proceeding ; 
 the sheriff in the presence of the viewers verbally seizing them 
 into the king's hands (i). As early as the time of Bracton, the 
 seizure of the land on the grand cape was merely formal, and 
 the tenant was left in possession (/c) ; and where in dower, upon 
 a writ of grand cape, cape ia manum nostrum tertiam partem 
 rectorice, the sheriff took the tithes, and carried them away, the 
 court said that this was not such a seisin as was intended by 
 the writ, and that the sheriff ought to seize generally, but to 
 leave them where he found them (/). The summoners should 
 then proceed to summon the tenant in the same manner as upon 
 the first summons (m). The grand cape must be served at least 
 fifteen days before the return day ; it is not sufficient to serve 
 it fifteen days before the quarto die j)ost (ji) . 
 
 The sheriff's return is, that he has taken into the king's hands Return. 
 by the view of A. B. and C. D., good and lawful men, &c., the 
 lands mentioned in the writ, and that he has by E. F. and G. H. 
 given notice to the tenant to be before the justices at Westmin- 
 ster at the time and place in the writ mentioned (o). The 
 names of the viewers and summoners ought to be returned by 
 the sheriff, but if the tenant appears and pleads, the omission is 
 not error (p). 
 
 (s,) Roscoe, 165. 1 Leon. 92; and see Jenk. Cent. 122; 
 
 (/i) See form, ;jost, Append, chap. Atkins v. Gage, JVoy, 152; Keilw, 
 
 14, s. 1. 117 a. 
 
 (i) Dalt. 151, 153; Roscoe, 166. (m) See ante. 337. 
 
 It is said by Lord Coke that the per- (n) Roscoe, 165; Bro.Ab. Grand 
 
 nnrs were the persons who seized the cape, 29, 36; Booth, 22. 
 land; Co. LiU. 259 b. (o) See form, post. Append, c. 14, 
 
 (k) Bract. 365 b. s, 1 ; and 2 Saund. 43, note. 
 
 (0 Roscoe, 166 ; Michel! v. Hyde, (p) Bro. Abr. Retorn de Br. 86.
 
 344 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV. 
 
 SECT. II. 
 
 Section If. 
 Writ of View — Trial. 
 
 Writ of view. By the writ of view the sheriff is commanded that he cause 
 the tenant to have a view of the lands, &c. demanded, and 
 that he appoint four knights of those present at the view to be 
 before the justices at Westminster on the return day to testify 
 such view, and that he have there the names of those knights 
 and the writ, 8cc.(q). In what real actions a view may be de- 
 manded and will be granted, and when the demandant can 
 counterplead the view, may be seen in Mr. Roscoe's Treatise on 
 Actions relating to Real Property, page 247 to 253. When a 
 view is demanded and granted, the demandant, to facilitate the 
 proceedings, as the view is generally demanded for delay, may 
 sue out the writ(r). 
 
 How exe- The sheriff must give notice to the viewers (who need not 
 
 culed. . ° _ ^ . 
 
 really be knights) and to the tenant, of the time when the view 
 will be given, which may be at any time before the return of the 
 writ of view. It is the duty of the demandant to point out the 
 lands to the sheriff, in order that the latter may show them to 
 the party (s). It is recommended that the demandant's agent 
 should serve the tenant or his attorney immediately with an ap- 
 pointment corresponding with the one made by the sheriff. The 
 sheriff's summons should be served upon the tenant himself, if 
 resident within the county, but if not, it can only be left upon 
 the premises demanded, in which case the notice to the attorney 
 will be requisite. The demandant must be able to point out 
 with accuracy the land, &c., demanded, and in exact conformity 
 with the writ (t). 
 
 In an action for rent, the land out of which it issues may be 
 put in view (i<\ So in quod permittat of common appendant, a 
 view may be had of the land in which the common is, and also 
 of the land to which it is appendant (x) ; and so in a quod per- 
 mittat of a way, a view may be had of a wall which obstructs 
 the way, and of the way and of the land which is appendant (y) ; 
 so also in a curia claudenda for not inclosing a house adjoining 
 
 (?) Roscoe, 253, (w) Rol. Abr. View (Z\ 2. 
 
 (r) Ibid. Ix) Bro. Abr. View, 10. 
 
 («) Ibid. (y) Ibid.; Brook t). Groves, Hutt. 
 
 (0 3 Cfiit. Plead. 643^ 28.
 
 WRIT OF VIEW. 345 
 
 to the house of the plaintiff, the defendant shall have a view of ckap. xv. 
 both the houses (s). If land is demanded, and the view is ^^*^^' "' 
 granted, every part of the land shall be put in view ; and so 
 when the demand is of a house, every parcel of the house shall 
 be viewed (a) ; but in making the view it is not necessary to 
 show every acre, for the demandant may show the field, and say 
 that he claims so many acres therein, and then another field, 
 and so on (6). If the demand be of a moiety of a manor, the 
 tenant shall have view of all the manor; but in making view of 
 a manor, the site, with tlie appurtenances, shall be put in view, 
 and not every parcel of the manor (c). In assize of an office, 
 the place where it is exercised shall be put in view of the jury. 
 Thus in assize of the office of one of the filacers of the Common 
 Pleas, the place where the plaintiff sat when he was first ad- 
 mitted was put in view (d). 
 
 If the tenant or his agent attends, and the sheriff makes a Return, 
 view, the sheriff should return that he has caused the tenant to 
 have a view of the lands, &c. demanded. If neither the tenant 
 nor his agent attended to take the view, the sheriff should make 
 his return accordingly (e). If the demandant did not come to 
 show the lands, this will be a good return (/). 
 
 In certain actions the jurors and not the tenant shall have the view by the 
 view. In such action the sheriff is by the writ commanded that ^"''^' 
 he summon a jury to view the premises and to make recognition, 
 &c. The sheriff accordingly issues his summons to the jurors, 
 six of whom at least ought to view the land(^). The land is 
 then shown to the jurors that attend. 
 
 The trial and jury process are the same in real actions as 
 in personal actions in the Common Pleas, excepting in the writs 
 of right. 
 
 In a writ of right, when the mise is joined on the mere right, Trial by iiie 
 the trial must be by the grand assize, and not by a common jury. ^"" 
 
 (z) Rol. Abr. View (K). appointed. 5em6/e, it is not sufficient. 
 
 (a) Rol, Abr. View (Z) 14; but Ante,3i3. 
 
 see 1 Leon. 267. (/) By not attending, the tenant 
 
 (b) Roscoe, 254 ; Bro. Abr. View, loses his view ; if the denriandant do 
 111. not attend, an alias writ of view may 
 
 (c) Roscoe, 254. be sued out ; Roscoe, 254. 
 
 ((0 Roscoe, 254; Dyer, 114b; 2 (^) Roscoe, 254, 255. Thegrant- 
 
 Rol. Abr. 731, 1. 14 ; Bro. Abr. As- ing a view in waste is now regulated 
 
 size, 2. by 4 Anne, c. 16, s. 8, and 3 Geo. 2, 
 
 (e) Qutcre whether it is sufficient to c. 25, s- 14, 
 say that he did not attend at the time
 
 346 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV. Indeed in such case, even by consent, the court will not allow 
 ' the right to be tried by a common jury (//). But when the mise 
 
 is joined on any collateral point, the trial is by a common jury(i). 
 The writ of right in either case may be tried at nisi prius{k). 
 By the writ to summons the grand assize, the sheriff is com- 
 manded to assemble four good and lawful knights of his baili- 
 wick, girt with swords, to be in court on a general return day; 
 or if the trial is to be at nisi prius, in the alternative, that the 
 knights should be before the justices, on, &c., or before the jus- 
 tices of assize, &'c., if they shall first come to N., &c., to choose 
 the grand assize {I). 
 
 The duty of the sheriff consists merely in summoning the four 
 knights ; nor is he obliged to do this before the commission day 
 of the assizes, but may summon the knights from the grand jury 
 at the assizes ; having done this, his duty is at an end, for it 
 is not part of the sheriff's duty to procure the knights to be 
 sworn (?h). If there be not four knights in the county, the she- 
 riff may return others (h). 
 
 If the four knights, after being summoned, do not appear, 
 the demandant may have a habeas corjiora quatuor militum in the 
 alternative (o). If the sheriff have not returned the writ, an 
 alias maybe issued (^j). When the four knights appear, they 
 are sworn lawfully and truly to choose twenty knights girt with 
 swords, who best know and will declare and say the truth be- 
 tween the parties ; these recognitors need not in fact be knights. 
 It seems {q) that the four knights may be challenged ; if one or 
 two only be challenged, then the residue may proceed to name 
 the recognitors ; if these be challenged, a new writ must issue 
 to choose four other knights. Out of themselves and the re- 
 cognitors the four knights choose a jury, upon which a venire 
 facias issues as in other actions (?). 
 
 (h) Gallon v. Harvey, 1 Bos. & persons returned as knights were not 
 
 Pul. 192. in fact knights, and the qualification 
 
 (i) Roscoe, 297. of persons to be returned was dis- 
 
 {k) Id. ibid. ; Penrose v. Maynard, cussed. 
 
 1 Taunt. 415; 2 Saund. 45, note. (o) Dyer, 79b, 104a; 2 Saund. 
 
 (/) As to the form of the writ of 45 k. 
 
 summons where the trial is at nisi (p) Tyssen v. Clarke, 3 Wils. 562. 
 
 priiis, see Roscoe, 297, 298. (q) Per Coke and Littleton, .Ts., 
 
 (m) Windle v. Ricardo, 3 Moore, 15 Edw. 4,1 •, Co. LiU. 294 a, conira; 
 
 249 ; 1 Brod. & Bing. 17, S. C. Roscoe, 299. 
 
 (7i) Co. Litt. 294 a. See 2 Saund. (r) See Roscoe, 298, 299. See as 
 
 45 i, note. Dyer, 247 b, margin. In to the number of recognitors, ibid, 298, 
 
 a recent case of Angell v. Angell, Hil. note (g). 
 1826, it was objected that the four
 
 HABERE FACIAS SEISINAM. 347 
 
 CHAP. XV. 
 
 Section III. _sECT^m. 
 
 Execution. — Habere facias seismam. 
 
 The execution in most real actions is done by writ of hahere Execmion ia 
 facias seisinam (5), by which writ the sheriff is directed that he 
 cause the demandant to have seisin of the lands which he has 
 recovered. When the writ shows the certainty of the thing re- 
 covered, the demandant may, without executing a hab.fac. sets., 
 make an entry upon the lands recovered ; and this entry will 
 execute the judgment and vest the freehold in the demandant (f). 
 So where the action is for the recovery of a rent or common, &c. 
 in certainty, the demandant after judgment may distrain without 
 issuing any writ of execution (?<). Either within or after the 
 year after judgment, the demandant may enter on the tenant (a:), 
 or his he'ir{y). If a stranger enters and dies seised, the de- 
 mandant may enter within a year after judgment (2). 
 
 But where the certainty of the lands demanded does not ap- Hab.fac. 
 pear, as in dower, the demandant cannot enter, but must sue ntcesTary" 
 out a habere facias seisinam (a). This writ may be taken out at 
 any time within a year and a day after judgment ; if the tenant 
 die after judgment, execution may be sued against his heir, or 
 against the issue in tail, whether the recovery be upon a real 
 title (&), or by common recovery (c). So if the demandant die, # 
 
 his heir shall have execution {d). 
 
 The writ of habere facias seisinam is executed nearly in the 
 same manner as the writ of habere facias possessionem : in like 
 manner as on a hab. fac, poss. the officer may break open the 
 outer door of a house to deliver seisin to the demandant (<?). 
 Upon a hab. fac. seis., the sheriff should give actual possession 
 of the land to the tenant by turning the tenants off the pre- 
 mises (/). Where the writ requires the sheriff to deliver seisin 
 
 (s) Roscoe, 341 : Co. Litt. 34 b; seisin by the sheriff will not reduce 
 
 Coin. Dig. Execution (A 1). the demand to a certainty, as where 
 
 (t) Co. Lilt. 34 b ; Roscoe, 341. in dower a woman recovers against 
 
 (m) Id. ibid.; Com. Dig. Execu- one of two tenants in common the 
 
 tion (A 1). third part of a moiety ; Roscoe, 341. 
 
 (x) Roll. Abr. Execution (B). (b) Roscoe, 342. 
 
 (y) Id. ibid. Although several de- (c) Id. ibid. ; Shelly 's case, 1 Rep. 
 
 scents have been cast in the blood of 106 a ; Co. Lilt. 361 b ; Dyer, 376 b. 
 
 the tenant; id. ibid (d) Com. Dig. Execution (E). 
 
 (z) Rol. Abr. Execution (B); (e) Semayne's case, 5 Rep. 91b. 
 
 Com. Dig. Execution (A 1). (/) Uilb. P:ject. 108, 2nd edit. ; 
 
 (a) Even where the delivery of Upton v. Wells, 1 Leon. 145.
 
 348 PROCESS IN REAL ACTIONS. 
 
 CHAP. XV. of several messuages in the possession of the same person, it is 
 ^^^'^' "'• sufficient if the sheriff delivers seisin of one in the name of 
 all(g') ; but where the houses, &c. recovered are in the posses- 
 sion of several, it is not sufficient to deliver seisin of one in the 
 name of all, but the sheriff ought to go to each in particular (/«)• 
 It is in delivering seisin as in delivering possession, where the 
 sheriff is to deliver seisin of so many acres, they shall be com- 
 puted by the custom of the county and not by statute measure (i). 
 Upon a habere facias scisinam in dower, if the sheriff offer to 
 deliver seisin and show in certainty the parcels which make the 
 third part by metes and bounds in severalty, the demandant, 
 though she refuse such seisin, may afterwards enter (^). In 
 dower, on a hab. fac. sets, against several purchasers, the court 
 will order the sheriff to charge the purchasers proportionably (l). 
 
 Poundage For cxccuting a writ of habere facias seisinam, the sheriff we 
 
 have seen (m), by the stat. 3 Geo. 1, c. 15, s. 16, is entitled to 
 1*. in the pound of the annual value of lands where the whole 
 does not exceed 100/. ; and 6d. in the pound for every IZ. per 
 annum over and above the yearly value of 100/. 
 
 If the demandant has once had execution, he cannot after- 
 wards have execution again ; and therefore where the sheriff 
 returns upon hab. fac. seis. execution done, an alias hab. fac. 
 seis. cannot issue (??). So if the fee be executed in the ancestor, 
 it shall never be executed again by the heir (o), or a fee tail by 
 the issue in tail {p). 
 
 ig) Rol. Abr. Execution (H 1); (k) Dyer, 278 b. 
 
 Com. Dig. Execution {A3); Floyd (I) 1 Freem. 227. 
 
 D. Bethel, I Rol. Rep. 421. (in) Ante, 
 
 (h) Rol. Abr. Execution (H 2). (n) Com. Dig. Execution (A 3); 
 
 (0 Roll. Abr. Execution (H7); Dyer. 278 b. 
 
 1 Rol. Rep. 421. Sed vide Dyer, (o) Roll. Abr. Execution (F), 3,4. 
 
 47 b, margin, contra. (p) Id. Ibid. 
 
 lelurn.
 
 ( Sid ) 
 
 - CHAPTER XVI. 
 
 OF THE EXCHEQUER WRITS. 
 
 Sect. I. — Of the Nature of the Sheriff's Office as Collector of the 
 Revenue of the Croyvn. — Of the ordinary Exchequer 
 Process ; Great Roll, the Summons of the Pipe, 
 Summons of the Green Wax, Ft. Fa. against Cler- 
 gymen. — Distringas against Collectors of Taxes, 
 against Parishes, against Accountants ; Set. Fa. on 
 Port Bonds. 
 II. — Of the Writ of Extent. — Nature and Form of the 
 Writ. — How executed, — Arrest of the Defendant. — 
 Seizure of Defendant's Goods. — Goods, from what 
 Time hound, Priority between the Crown and the 
 Subject, Goods distrained, ^-c. — Priority between 
 several Extents; when the Crown has a specific Lien. 
 — Lands, how seized; from what Time hound; Debts, 
 how taken, — Of the holding of the Inquisition. — 
 Sheriff's Return, Liabilities, ^'c. 
 III. — Poundage on Crown Writs, — Statutes regulating the 
 
 Poundage. — Decisions thereon. 
 IV. — Of the Sheriff's Accounts, 
 
 We have seen that the sheriff, by virtue of his office, is the or the nature 
 queen's bailiff, and receiver of the rents and debts of the crown ritr's oiiice 
 within his bailiwick. By his oath of office, the sheriff swears the revenue 
 '* that he will promote her majesty's profit in all things that °' ^ '='^°w"' 
 belong to the crown ; that he will not assent to decrease, lessen, 
 or conceal the queen's right, or the rights of her franchises; and 
 whensoever he shall have knowledge that the rights of the crown 
 be concealed or withdrawn, be it in lands, rents, franchises, 
 suits, or services, or in any other matter or thing, he will do his 
 utmost to make them be restored to the crown again ; and if he
 
 350 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. may not do it of himself, he will certify and inform some of her 
 ^^'^'^' ^' majesty's judges thereof." 
 
 Formerly tlie sheriff ex officio had the power to levy all the 
 revenues of the crown without writ. This revenue is divided 
 into fixed and casual (a) ; the former of these were called " vis- 
 contiels," and for tlie amount of these the sheriff was account- 
 able to the exchequer, whether received by him or not (6) ; and 
 by the statute of 1 Hen. 4, c. 11, it appears that the sheriffs 
 were charged with the ancient farms of the counties, and that 
 they fermed the counties ; to this Dalton (c) attaches a qucere, 
 " what these farms of the counties were." It would seem that 
 they were the fixed revenue of the crown, which the sheriff 
 farmed for a certain sum, or accounted for as bailiff; but whe- 
 ther he accounted as bailiff or farmed, he was charged in the 
 exchequer a sum certain for the viscontiels {d). These fixed 
 revenues of the crown, or farms, or viscontiels were, 1st. The 
 rents of the tenants of the demesnes of the king. 2nd. Gror.s 
 ferms of lands, not parcel of the county, let to farm to cities, 
 boroughs, or particular persons, or reserved after the ferm of 
 the county was ascertained. 3rd. Common fines upon towns 
 for hcaupleader, for suit, ward, not attending the torn, &c., re- 
 duced to a certainty. 4th. Arrentations o{ assarts in wastes and 
 forests, ascertained by justices in Eyre. 5th. Crementum comi- 
 tatHs, or improvements of the king's rents, or other small rents 
 thrown into the corpus comitalus (e). The casual revenue, called 
 projicuum comitates, consists of the fines, forfeited recognizances, 
 and other debts due to the crown (/). And by the statute of 4 
 Hen. 5, c, 2, it was enacted, " that all sheriffs of England shall 
 have allowance upon their accompts, by their oaths, of things 
 casual, as of estreats that be not in ferm, nor in demand ; but of 
 all such things that be or run in yearly ferms, or yearly de- 
 mands, they shall be charged to the king (envers le roi), as the 
 sheriffs have been charged in that case in times past." 
 
 By the statute of the 27 Edw. 1, c, 2, it was ordained " that 
 sheriffs shall not be charged of any issues to be levied, nor shall 
 
 (a) Hale's Sher. Ace. 34 j Dalt. 2; Dalt. 49. 
 
 48, 49. (e) Com, Dig. Viscount (G 1) ; 
 
 (b) Dalt. 49, 59. Gilb. Exch. 86 ; Dalt. c. 8 and 9. 
 
 (c) Dalt, 48. (/) Gilb. Exch. 98; Com. Dig. 
 
 (d) See Gilb, Exch. 76 et seq.; Viscount (G 1). 
 Hale's Sher. Ace; stat. 4 Hen. 5, c.
 
 sheriff's duty in collecting crown debts. 351 
 
 levy any before they pass out of the exchequer, there to be chap. xvi. 
 delivered by the estreats of the justices." Fines, debts due on . 
 estreated recognizances, or otherwise due to the crown, could 
 not be levied by the sheriff without a writ from the Court of Ex- 
 chequer for that purpose (g-). In a recent case(/i), the propriety 
 of the sheriff's levying fines by obtaining a writ of levari facias^ 
 without the prior sanction of the law officers of the crown, was 
 discussed, and it was decided that the solicitor-general having 
 subsequently adopted the acts of the sheriff, the issuing of, and 
 the levy by virtue of, the levari facias were not irregular ; and 
 Holroyd, J., there said, " The sheriff is the king's officer, and it 
 is his particular duty to take care of the king's revenue, and 
 amongst other sources of it, the fines due to the crown. The 
 sheriff in this case was justified in suing out the process of the 
 court, in order to enable him to levy the fine upon the property 
 of the person convicted." Sufficient has been here stated to 
 show the nature of the sheriff's duty as collector of the king's 
 revenue. To the historian or the antiquarian, the authorities in 
 the margin (i) will yield the only information to be met with on 
 this subject ; from these the author of this work has collated 
 the short account thereof above given. 
 
 It is to be observed, however, that by the statute referred to in 
 a former part of this work (j), the 3 & 4 Will. 4, c. 99, s. 12, it has 
 been enacted, (after reciting " that the present mode of managing 
 and collecting certain quit rents and vicecomital or viscontiel 
 rents due to his majesty, and the present mode of accounting for 
 and paying post fines on alienation of lands and other heredita- 
 ments, have been found disadvantageous to the public service, 
 and inconvenient and troublesome to sheriffs"), that after the 
 10th October, 1833, no sheriff shall receive or be chargeable with 
 the collection and receipt of quit rents, vicecomital or viscontiel 
 rents, and other rents or payments issuing out of or payable to 
 his majesty, in respect of any honours, manors, lands, tenements, 
 or hereditaments in England or Wales ; but the same (except 
 such as shall be released pursuant to the provision next herein- 
 after contained) shall hereafter be considered as part and parcel 
 of the land revenue of the crown, and shall be under the care, 
 
 {g) Dalt. 58. Sher. Ace. ; Gilb. Exch. 76 et seq.; 
 
 Ih) Rex V. Woolfe, 1 Chit. Rep. Madd. Exch. 
 
 583. (J) Ante, p. 15. 
 (»■) Dalt. Sher. c. 5 to c.l9 j Hale's
 
 352 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. management, and direction of his majesty's Commissioners of 
 ^^^^' '' Woods, Forests, and Land Revenues, who shall have and exer- 
 
 cise the same powers and authorities for collecting and enforcing 
 the payment thereof as are given to or vested in them for col- 
 lecting and enforcing the payment of any other part of his 
 majesty's land revenue by any act or acts now in force con- 
 cerning the same. The 13th section then, after reciting that 
 many of tlie said rents are very ancient, and have become ob- 
 solete, and it is not known out of or from what hereditaments 
 and premises the same are issuing and payable, so that payment 
 thereof cannot be enforced, empowers the Commissioners of the 
 Treasury, by warrant under their hands, to remit, release, and 
 discharge all or any of the same rents, and the arrears thereof, 
 or any part thereof. 
 The common There are certain crown processes, which have issued for 
 fn^^ut^oTlhe ^o^^> ^"*^ ^'^'"^ issue twice a year to the sheriff of each county, to 
 Exchequer, collect the crown debts ; there also issue the summons of the 
 pipe, and also the summons of the green wax, to the sheriff to 
 appear in the Exchequer before the chancellor and barons on a 
 day prefixed, to have the monies collected. 
 The different These crown processes, which issue to the sheriff immediately 
 on his entrance into office, are, 1st. The great roll of the pipe. 
 Sndly. The summons of the pipe. Srdly. The summons of the 
 green wax. 4thly. A process to levy on clergymen by name 
 for arreai's of tenths or first fruits. 5thly. A process, called the 
 mortuus process, against the executors and administrators of 
 deceased clergymen. It may be necessary to describe the na- 
 ture of these several writs, and the manner in which they are 
 to be executed. 
 The great The great roll, or long writ, is in the nature of an extent, to 
 
 levy various sums from the persons mentioned in the schedule. 
 These are sums due on estreated recognizances (Jc), for fines set 
 on jurors, and various other sums particularly specified. A great 
 proportion of the sums in the long writ have been due, and 
 
 (^) By Stat. 3 Geo. 4, c. 46, and 4 same. The Court of Exchequer, when 
 
 Geo. 4, c. 37, it is enacted, that after such recognizances are estreated there, 
 
 forfeited recognizances taken before has lost its jurisdiction by those sta- 
 
 justices of the peace or sessions and tutes ; Rex v. Hanliin, 1 M'Clel. & 
 
 fines there taken have been testified to Younge,27 ; but see Expaite Pellow, 
 
 the clerk of the peace, the quarter 1 M'Clel. 111. 
 sessions may issue process to levy the 
 
 writs. 
 
 roll
 
 sheriff's duty in collecting crown debts. 353 
 
 inserted in the great roll to each succeeding sheriff, for many chap. xvi. 
 
 years, although regularly year after year n'lhillcd. On this the . . 
 
 sheriff is to levy as much as he can, and therefore on all the 
 rolls for a few years back he should send warrants to bailiffs, 
 directing them at the same time to make every exertion to levy 
 what they can. The sheriff should likewise keep an account of 
 all the warrants that he has issued, to be prepared to answer on 
 his apposals according to the bailiff's return : and therefore he 
 should issue warrants on the rolls as far back as he is likely to 
 be examined. The under-sheriff summons a jury to inquire 
 whether any of the persons in the schedule of the great roll have 
 any goods, chattels, lands, and tenements, whereof the debts 
 charged could be levied. This inquisition (/) is a mere matter 
 of form, as no evidence whatsoever is produced before it; 
 indeed, it is said that the under-sheriff sometimes returns the 
 inquisition without calling the jury together. And this inquisi- 
 tion, together with the return, will be a discharge to the sheriff 
 on the great roll. 
 
 The summons of the pipe contains merely an account of the The summons 
 fee-farm rents due to the crown within the sheriff's bailiwick, and 
 for which he is answerable. For all the rents in this roll the 
 sheriff is answerable in his accounts to the crown, whether he 
 can levy them or not ; the sheriff cannot nihil any of these rents, 
 although in many instances there is no such rent due to the 
 crown. The sheriff sends his warrants (m) to bailiffs to levy 
 these rents. The process is sent back with the other processes, 
 but the sheriff makes no return to it. In his accounts he an- 
 swers for all these rents. The under-sheriff should, in his book 
 of accounts on the crown process, enter all the sums in the sum- 
 mons of the pipe. 
 
 The summons of the green wax is a process to levy estreats Summons of 
 and other debts of late date («), also "post fines, or fines in the wax!"^*^" 
 Common Pleas. The sheriff made his warrant hereon as on the 
 last process, but he made no return thereto. He kept a copy 
 in his book of accounts, and either totted or nihilled the estreats, 
 &c. ; but he totted the j^ost fines, although never received by 
 him ; however, they were allowed him in some way in the ex- 
 
 (0 See Return and Inquisition, post, c. 15, s. 1. 
 Append, c. 15, s. 1. 0') These, if not levied, are after- 
 
 (^»i) See NVariant, pout, Appendix, wards put up;in llie great roll.
 
 354 
 
 OF TIIR EXCHEQUER WRITS. 
 
 CHAP. XVI. 
 
 sicr. I. 
 
 Fieri facias 
 against cler- 
 gymen for 
 tenihs. 
 
 Process 
 against tlie 
 representa- 
 tives of (le- 
 ceaseil cler- 
 gyiiitn. 
 
 Distringas 
 against col- 
 lectors, &e. 
 
 Distringan 
 against col- 
 lectors. 
 
 chequer. All the sums mhUled on the summons of the green 
 wax were generally carried in the succeeding year upon the great 
 roll (o). However, since the 3 & 4 Will. 4, c. 99, s. \'>, the she- 
 riffs of England and Wales (excepting in the county palatine 
 of Lancaster) are no longer chargeable with any lines called 
 'pre fines or post fines, which are to be received by the receiver- 
 general of alienation fines at the alienation office, and paid and 
 applied by him as therein mentioned. 
 
 This process is executed in the same manner as any other writ 
 o^ fieri facias ; but the parties, for the most part, pay the sum 
 on demand. 
 
 This is executed in the same manner as the last ; but on this 
 process there are debts against clergymen who have been dead 
 a hundred years and more. The sheriff holds an inquisition as 
 on the long writ (^), for the purpose of his discharge on his 
 accounts as to the charges that are hopeless. 
 
 The above are the ordinary exchequer processes, which are 
 invariably sent to the sheriff of each county ; besides these, there 
 are processes which the sheriff generally receives against collectors 
 and receivers of the revenue, and against parishes, and also writs 
 o^ scire facias on port bonds. These are, 1st, Distringas against 
 collectors for arrears of taxes ; Sndly, Distringas against inha- 
 bitants of parishes for arrears of taxes ; Srdly, Distringas against 
 persons who are accountants of the crown, or against their exe- 
 cutors, for taxes or money imprest, viz. receivers-general, agents, 
 paymasters, &c. ; 4thly, In the coast counties, writs of scire facias 
 against persons who have entered into bonds, generally called 
 port bonds. 
 
 If the collector is to be found, and has received the insujier, 
 or is likely to receive it before the time fixed for the sheriff's 
 apposal, he should be called upon to pay it ; and if he pay it, 
 or be a responsible person, it is usual to return that he has 
 received the money; but if the solvency of the collector be 
 doubtful, and he has received the insupcr, strictly speaking, the 
 sheriff should distrain, and return large issues. Although the 
 sheriff on all these writs is ordered that " he should distrain all 
 and every the goods and chattels, &c., so that nobody inter- 
 meddle, &c.," yet it is his duty to levy, indeed by his oath he can 
 only levy, reasonable issues : one shilling in the pound is cora- 
 (o) Gilb. Exch. 108. (p) See form, post, Appendix, c. 15, s. 1.
 
 sheriff's duty in collecting crom'n debts. 355 
 
 monly the amount of the issues distrained for. But if the sheriff chap. xvi. 
 is not informed that the insu^per lias been received by the col- ^^_lil_ 
 lector, or the collector is not to be found, he should return nihil(^q) ; 
 indeed, this writ is used as the first process against parishes ; as 
 they are answerable for collectors, the distrhigas against the 
 parish only issues on a return of the nihil against the collector ; 
 and as long as the sheriff returns issues on the distringas against 
 the collector, the process cannot issue against the parish. 
 
 If the parishes pay the insuper to the sheriff, which, generally mstrincias 
 speaking, they do, the sheriff should make his return accord- rishes. 
 ingly, and thereupon a record of payment is made and drawn 
 down on the pipe to be set against the sheriff. If the sheriff 
 cannot obtain payment from the parish, he should distrain, and 
 return issues to the value of one shilling in the pound (?•). 
 
 Issues to the amount of one shilling in the pound, that is to Distringas 
 
 7 I • 1 1 1 « T • 1 1 against ac- 
 
 say, reasonable issues, should be distramed and returned on this conmants, 
 writ. If the person mentioned in the schedule, after due dili- 
 gence, cannot be found, the sheriff should return nihil, at the 
 same time he should use due diligence in trying to discover all 
 persons named in the schedule (s). 
 
 The sheriff should direct his warrant to two bailifis to give Scire fadas 
 notice to the parties to appear to show cause, &c., according to bomis. 
 the terms of the writ. The bailiffs should make a regular return 
 to the sheriff either that they have given notice to the defendant, 
 or that they could not do it. In conformity to the answer of 
 his bailiffs the sheriff makes his return to the court (t). 
 
 Having now treated of these regular processes to the sheriff 
 from the exchequer, the execution of which is well known to the 
 professional men in all counties, we proceed to a more detailed 
 notice of the writ of extent. 
 
 Section II. 
 
 Of Extents. 
 
 The writ of extent is a writ of execution against the body, of(hena- 
 lands, and goods, or tl»e lands and goods, of the crown debtor, ^l^ft °*^ ^^^ 
 
 (q) See Return, post, Appendix, (») See Return, pust, Appendix, 
 
 c. 15, s. 1. c. 15, s. 1. 
 
 (r) Id. ibid. (() Id. ibid. 
 
 A A 2
 
 356 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. It is an ancient prerogative writ for obtaining satisfaction of 
 _SECT . II. jg][jtg originally due or assigned to the queen, or found due to 
 the queen on an inquisition (a). Until the statute 33 Hen. 8, 
 c. 39, ss. 50, 55, the extent could not have issued to take the 
 lands in the first instance, but only upon the contingency of there 
 not being sufficient chattels of the defendant to satisfy the debt ; 
 for by Magna Charta(jb), the king and his bailiffs were restrained 
 from seizing any land or rent for any debt, as long as the pre- 
 sent chattels were sufficient to pay the debt. It was formerly 
 usual to issue an extent to levy on the lands of the debtor, pro- 
 vided the chattels were not sufficient : this writ is said by Lord 
 Coke(c) to have been introduced after the statute of Hen. 8 ; 
 but it is the opinion of Chief Baron Gilbert that it was used 
 before that statute (d) ; which would seem to be the better opi- 
 nion, as the writ in that form seems to have been framed pre- 
 cisely to meet the prohibition in Magna Cliarta. However, 
 since the statute of Hen. 8, the practice has been to issue 
 the writ of extent, to levy the debt on the body, lands, and 
 chattels of the crown debtor absolutely, without any previous 
 inquisition touching the goods (e). But it would appear that 
 a writ of extent against the land only of the crown debtor, before 
 it appears by record that there are no chattels to satisfy the debt, 
 is irregular (/). 
 Of ihe differ- In what cases the courts will, and in what they will not, grant 
 extents/ <^ writ of extent, and the practice of the Court of Exchequer in 
 granting the writ, are matters which do not belong to a treatise 
 on the duty of the sheriff in executing it ; for if the writ be 
 
 (a) The writ against tiie lands of Charta, tlie body, lands, and goods of 
 
 an heir.onajudgmentobtained against the king's debtor were liable to the 
 
 him on the bond of his ancestor, and king's execution ; but see West on 
 
 the writs of execution on a statute sta- Extents, chap. 1. 
 
 pie or merchant, are also called extents. (c) 2 Inst. 19 ; West, 76. 
 
 The word extent strictly refers to land (d) Gilb. Exchequer, 127, 128; 
 
 only; Palmer's case, 4 Rep. 74. The West, 79. 
 
 first mention of it to be found is in the (e) West, 73, 80. 
 
 statute of elegit, 13 P:dw. 1, (Westm. (/) Rex v. Lambe, M'Clel. 402, 
 
 2), c. 18, and the stat. 13 Edw. 1, 416. On an extent against both lands 
 
 Stat, de Rlerc. (Westm. 1). Tiie crown and goods, where the goods seized are 
 
 cannot recover a debt of record by an sufficient to satisfy the debt, the court 
 
 information in the nature of a popular will not make an order for the sale of 
 
 action of debt, but only by extent, sfi/t' tiie lands; Hex v. Hopper, 3 Price, 
 
 facias, or l)y filing an information on 40; West, 107, 225, S. C. Indeed 
 
 the record itself; Att.-Gen. v. Sewell, in such case the Imds sliould not be 
 
 4 Rl. & W. 77. seized by the sheriff; West, 79. 
 
 {!>) At common law, before Magna
 
 OF EXTENTS. 
 
 357 
 
 issued to the slieriflT, he is bound to obey it, provided the court chav. xvt. 
 from which it issued had jurisdiction, without questioning the ^^^^'"' 
 regularity of the proceedings (g-) ; it may suffice, therefore, to 
 notice shortly the different kinds of extent. 
 
 Writs of extent are of two kinds : extents in chief, or in aid. 
 An extent in chief is an adverse proceeding by the queen for the 
 recovery of her own debt ; an extent in aid is sued out at the 
 instance and for the benefit of the debtor to the crown, or his 
 surety, for the recovery of a debt due to himself (Ji). A crown 
 debtor is not entitled to use the prerogative process against his 
 own debtor after he has paid his debt to the crown, or after his 
 debtor has become discharged by the insolvent act, or the 
 like (?'). In case of the death of the crown debtor, whenever an 
 extent might have issued against the queen's debtor in his lifetime, 
 a writ of diem clausit cxlremum, which is an extent against his 
 lands and chattels, may issue after his death (j). But no diem 
 clausit extremum can regularly issue against the estate of any 
 person who was not a debtor to the crown, or found in his life- 
 time to be a debtor to the queen's debtor (/c). An extent may 
 issue for the queen as well for debts of record as debts not of 
 record. Debts of record are founded on judgments, or recog- 
 nizances, or inquisitions, taken and returned on commission 
 issuing out of the Court of Exchequer (/) : debts not of record 
 are on bonds, or simple contracts ; which latter are either due 
 from the known officers and accountants to the queen, or from 
 third persons {m). 
 
 (^) See Rexi'. Sliackell andotliers, {k) Rex o. Tlie Estate of H. Boon, 
 
 M'Clel. & Younge, 514. Parker, 16. But a diem clausit ex- 
 
 (h) Rex i;. Shackle, 11 Price, 772. tremum may issue if the debt were 
 
 See 57 Geo. 3, c. 117, for regulating really due on simple contract, although 
 
 the granting of extents in aid ; and not found by commission till after the 
 
 see Tidd's Prac. 8th edit. 110 et death of the debtor ; Rex d. Estate of 
 
 seq. This statute does not apply to Curtis, Parker, 95. 
 
 extents in chief in the second degree ; (I) As to which, see Reg. v. Ryle, 
 
 Rex V. Shackle, supru. The crown, 9 M. & W. 227 ; Dean v. Reg., 15 
 
 therefore, may proceed by extent to M. & VV. 475. 
 
 recover a debt due from a person in- (m) When by the inquisition on an 
 
 debted to a crown debtor who has extent debts are found and seized into 
 
 received and misapplied the crown the queen's hands, the crown, on an 
 
 money, although he be not a debtor affidavit of danger, and a baron's fiat, 
 
 to the crown within the 4th section of may proceed by an immediate extent 
 
 that statute: ibid. for their recovery, which is called an 
 
 (i) Rex V. Bingham, 1 C. & J. 131 ; extent in the second degree. So where 
 
 1 C. & M. 862. debts are found on an extent in the 
 
 (j) Bunb. 119. second degree, on an affidavit of dan-
 
 358 
 
 OF THE EXCHEQUER WRITS. 
 
 CHAP. xvr. The writ of extent issues out of the equity side of the Court 
 — - ' ^' - of Exchequer, (which for tlie purposes of its revenue jurisdiction 
 "^iheVxu'IIi. ^*''^ subsists, notwithstanding stat. 5 Vict. c. 5) (n), and after 
 particularly reciting the debt due to the crown, commands the 
 sheriff, to whom it is directed, to omit not by reason of any 
 liberty, but to enter the same and take the defendant; and to 
 inquire by a jury what lands and tenements, and of what yearly 
 value, the defendant had on the day when he first became debtor 
 to the crown, or at any time since, (or in the case of a simple 
 contract debt, what lands, &c., he now hath), and what goods 
 and chattels, and of what sorts and prices, and what debts, 
 credits, specialties, and sums of money, the defendant, or any 
 person in trust for him or to his use, hath in his bailiwick, and to 
 appraise and extend all and singular the said goods and chattels, 
 lands, tenements, debts, &c., and to take and seize the same into 
 the (jueen's hands. The sheriff is also thereby directed to sum- 
 mon before him such persons as he shall think proper, to exa- 
 mine them in the premises, and to return the writ to the court, 
 with a proviso that he do not sell the goods and chattels till he 
 shall be otherwise commanded. The writ of extent cannot be 
 antedated (o), but should bear teste on the day it issues, though 
 in vacation ; for it issues out of the equity side of the Ex- 
 chequer, which is always open (^j). The writ is returnable on 
 a general return day. The writ of extent is granted upon the fiat 
 of a baron, and is tested by the chief baron, signed by the queen's 
 remembrancer, and sealed with the exchequer seal(y). And 
 to prevent extents in aid being issued for larger or greater sums 
 of money than are really due, by the 57 Geo. 3, c. 117, s. 1, 2, 
 it is enacted, " that upon the issuing of every extent in aid on 
 behalf of any debtor to his majesty, his majesty's Court of Ex- 
 chequer at Westminster, or the chancellor of his majesty's ex- 
 chequer, or lord chief baron or other baron of the said court, 
 
 ger, and a baion's /;«(, the crown may Ewins'scase, Parker, 259, 260; West, 
 
 have an extent in the third degree for 303. 
 
 their recovery. It seems that on an (n) Attorney-General v. Hailing, 
 
 extent in chief, the crown may seize 15 M. & VV. 
 
 flebts found to be due to ils debtor, (o) Rex i'. Rawlings, 2 C. M. & 
 
 &c., in iiijinihun ; Bunb. 303 ; and R. 471; 4 Dowl. 407. 
 
 see Gilb. Excheq. 177. But on an (p) Rex v, Mann, 2 Stra. 749; 
 
 extent in aid debts cannot be seized Bunb. 164, S. C; Gilb. Rep. 222; 
 
 beyond the thiid degree, counting the Rex v. ]\Iaberley, 3 Dowl. 383. 
 
 queen's debtor as one of the degrees; (q) West, 56.
 
 OF EXTENTS. 
 
 359 
 
 srantinsT the fiat for the issuing of such extent in aid, shall cause chap. xvi. 
 
 . SECTt II» 
 
 the amount of the debt or sum of money due or claimed to be ' 
 
 due to his majesty, to be stated and specified in the said jiat ; 
 and that in all cases in which the debt or debts found due to the 
 debtor to his majesty shall be equal to or exceed the debt stated 
 and specified in the said^crf as aforesaid, the amount of the debt 
 so stated and specified in the said fiat shall be indorsed upon the 
 writ ; and the writ so indorsed shall be deemed to be and be 
 the authority and direction to the sheriff or other officer who 
 shall execute such writ in making his levy and executing the 
 same as to the amount to be levied and to be taken under the 
 said writ : and that in all cases in which the debt or debts found 
 due to the debtor to his majesty shall be of less amount than 
 the debt stated and specified in the said fiat as aforesaid, the 
 amount of such debt or debts found due to such debtor to his 
 majesty shall be indorsed upon the writ, and the writ so in- 
 dorsed shall be deemed to be and be the authority and direction 
 to the sheriff or other officer who shall execute the said writ in 
 making his levy and executing the same as to the amount to be 
 levied and taken under the said writ." 
 
 A warrant should be made under the seal of the sheriff to an Wanant. 
 officer, to take the defendant and seize his goods according to the 
 exigency of the writ (?•) ; the usual fee allowed for such warrant 
 is five shillings. 
 
 The officer may break open the outer door of a dwelling house An ontti 
 
 •' ' _ door may bo 
 
 if not opened on request, for the purpose of arresting the de- broken open 
 lendant or of seizing his goods, by vntue oi a writ of extent at extent. 
 the suit of the crown (s) ; and, of course, admittance being ob- 
 tained at the outer door, for the like purposes an inner door may 
 be broken open, even without a previous request of admittance (<). 
 As the writ of extent contains a non omittas clause, the sheriff 
 may enter a liberty to execute it (m), consequently he should not 
 direct a mandate to the bailiff of the liberty to execute it, al- 
 though the defendant, his lands and goods be entirely within a 
 liberty. 
 
 With respect to the duty of the sheriff in taking the body of Sheritt'sdnty 
 the defendant on an extent, he should be taken if found, ahhough body of the 
 
 defendant. 
 
 (r) See form, ywst, Append, c. 15, (t) Hutchinson j;. Birch, 4 Taunt, 
 
 s. 2. 619. 
 
 (s) Semayne's case, 5 Rep. 92 ; (u) See ante, 58. 
 
 Godb. 297.
 
 iJ60 oi' Tin; kxciiequkr writs. 
 
 ciMi\ XVI. there may be goods and lands sufficient to satisfy the crown 
 ^^^'''' "• debt. A defendant taken on an extent cannot be admitted to 
 bail by the sheriHj the extent being an execufion and not mesne 
 process, and the statute 23 Hen. 6, c. 9, does not extend to the 
 crown. It is clear that a person who has become bankrupt and 
 obtained his certificate, or been discharged under an insolvent 
 act, subsequent to the accruing of the crown debt, is not privi- 
 leged from arrest even on an extent in aid ; for the crown is 
 not bound by the Bankrupt Act, not being specially mentioned 
 therein (.r). So it has been held that a bankrupt may be arrested 
 
 ^ on an extent during his privilege (?/). But where a bankrupt 
 
 was arrested on a writ of extent, while actually attending to give 
 evidence before commissioners of bankrupt, the chancellor dis- 
 charged him, as being privileged from arrest at common law (z). 
 It seems to have been doubted whether the defendant could be 
 in custody at the suit of a subject at the same time that he was 
 in custody at the suit of the crown, as it is said by Dyer, C. J., 
 " The queen hath not an equal in her kingdom to have interest 
 in the body of her prisoner together with her («)." But it is 
 now clear that if a defendant be in execution at the suit of a 
 subject, and he be afterwards charged in execution with an ex- 
 tent, he is in custody as well at the suit of the subject as at the 
 suit of the crown (6). 
 
 Ill seizing the The duty of the sheriff on the extent is to seize all the goods 
 
 good".''" * and chattels of the defendant, and therefore he must issue his 
 
 (a) Rex V. Pixley, Bunb. 202; was taken into custody by the sheriff 
 
 Anon. 1 Atk. 262; and see 8 Price, on an extent: on an application on 
 
 671. behalf of the bail for lelief, it was 
 
 (y) Ex parte Temple, 2 Rose, 22. held, 1st, That the bail were not 
 
 (z) Ex parte Russel, 1 Rose, 273; entitled lo have an exoneretxir entered 
 
 see also West, 95. on the bail piece ; 2d, That the crown 
 
 (a) Dyer, 297, pi. 24. having refused its consent lo the de- 
 
 (i) Stevenson's case, Cro. Car. fendant's being surrendered, unless he 
 
 389; Savile, 29; Lord Dacre v, should immediately be remanded lo 
 
 Lassels, Dyer, 197, pi. 44. When the custody of the marshal, that court 
 
 the crown is concerned, the courts will had no authority so to remand him, 
 
 not in general change the custody of after he had been rendered to the 
 
 a defendant, in order that he may be warden of the Pleet : And 3d, That 
 
 charged with a civil suit, or rendered tiie bail could not surrender the de- 
 
 in discharge of his bail, without the fendant by habeas corpus as a matter 
 
 consent of the Attorney-General ; of right without the consent of the 
 
 Tidd's Prac. 289, 8th edit. ; West, crown ; but the court ofTered to give 
 
 90, 91 , 92, 95. In Hodgson v. Tem- the bail lime for rendering the defend- 
 
 pie, 5 Taunt. 503; 1 JVJarsh. 166, ant. See observations on this decision, 
 
 S. C, where a defendant was held lo West, 91, 92 et seq. 
 bail in a civil action, after which he
 
 OF EXTENTS. 
 
 361 
 
 warrant to an officer to execute this part of the writ ; the seizure 
 of the goods by virtue of an extent is a seizure in fact, and not - 
 a mere seizure in law, as in seizing the debts of the defendant 
 by virtue of an extent. The writ of extent only authorizes the 
 sheriff to seize the goods of the defendant into his hands, but 
 expressly directs him 7iot to sell them until further commanded. 
 Whatever, therefore, under the denomination of goods and chat- 
 tels, may be taken under a writ o{ fieri facias, may be taken under 
 an extent (c). Money also, even before the statute 1 & 2 Vict, 
 c. no, might be taken on an extent (c?). A term of years may be 
 either appraised as a chattel, or extended as land under the ex- 
 tent (e). Goods held by another in trust for the defendant may 
 be taken on the extent (/); but goods pawned or pledged, or 
 demised or letten, prior to the teste of the extent, for a term cer- 
 tain, during the term, or whereon a third person has a lien, cannot 
 be taken on an extent, althougli it seems on satisfaction of the 
 pledge or lien they may be taken {g). Upon an extent against 
 one partner, the crown may seize the property of the partner- 
 ship, but the crown can only sell the interest of the partner against 
 whom the extent issues, which is his share of the surplus after 
 payment of the partnership debts (A). The goods which the 
 crown debtor has in autre droit, as executor or administrator, 
 cannot be taken on an extent against him in his own right (i). It 
 is said that cattle levant and couchant, or other goods of a third 
 person on the lands of a defendant, may be taken for the queen's 
 debt, but it is apprehended that this is not correct, if it be meant 
 that they can be taken on an extent as goods and chattels ; it is 
 however true, that cattle of a stranger levant and couchant on the 
 land of the defendant may be taken on a levari facias, for such 
 cattle are considered to be the profits of the land (k). 
 
 (c) Seeunfe, c. 10, s.2and 3. In (g) Bro. Abr. Pledges, 28; King 
 2 Roll. Abr. 160, 1. 5, it is said that v. Humphreys, 1 M'Clel. & Yo. 173 j 
 all the goods and chattels of the de- see West, 116. 
 
 fendant may be taken, excepfi/i^ nergs- {h) Rex v. Sanderson, 1 Wight- 
 
 sary victuals for the defendant and wick, 51. 
 
 his family, and oxen aiid'heasts of the (i) 2 Roll. Abr. 159, 1. 49. 
 
 ■plowh. ('0 i^tafi'ord v. iiateman. Roll. 
 
 (d) West, 172. Abr. 159; Cro. Eliz. 431, S. C. ; 
 
 (e) Sir Gerard Fleetwood's case, Britton v. Cole, i Lord Raym. 305 ; 
 8 Rep. 171. Salk. 395, S. C.j Carth. 441; 6 
 
 (/) This clause was first inserted Mod. 112. 
 by order of the court, 1712; West, 
 116. 
 
 CHAP. XVI 
 SECT. II.
 
 OF THE EXCHEQUER WRITS, 
 
 CHAP, xvr, 
 
 SECT. II. 
 
 Goods I'rom 
 what lime 
 bound on a 
 writ of ex- 
 tent. 
 
 Priority in 
 favour of 
 execution at 
 the suit of 
 the crown. 
 
 When the 
 frown had 
 commenced 
 proceedings 
 first. 
 
 When the/. 
 fa. is deli- 
 vered belure 
 the teste ol 
 the extent. 
 
 As executions at the suit of the crown are not particularly 
 mentioned in the Statute of Frauds, the goods of the defendant, 
 as upon executions at the suit of the subject at the conimou law, 
 are bound from tlie teste of the writ of extent (/). That is, 
 notwithstanding any sale or assignment by the defendant of his 
 goods, even in market overt (m), after the teste of the writ of 
 extent, such goods may be taken by the sheriff on an extent. 
 But goods bond Jide assigned, sold, or pawned, before the teste of 
 the extent, cannot be seized by virtue of such extent (n). 
 
 By the statute 33 Hen. 8, c. 39, s, 74, it is enacted, that " if 
 any suit be commenced or taken, or any process be hereafter 
 awarded for the king, for the recovery of any of the king's 
 debts, then the same suit and process shall be preferred before 
 the suit of any person or persons. And tlial our said sovereign 
 lord, his heirs and successors, shall have first execution against 
 any defendant or defendants of and for his said debts before 
 any other person or persons ; so always that the king's said suit 
 he taken and commenced, or piocess awarded for the said debt, at 
 the suit of our said sovereign lord the king, his heirs or succes- 
 sors, before judgment given /or the said other person or persons." 
 On this clause of the statute it has long been settled law, that if 
 the crown suit be commenced, or the fiat for the extent be made, 
 before the judgment be given for the subject, the execution for 
 the crown is to be preferred (o). 
 
 As between the crown and a subject, when the judgment of 
 the subject is prior to the commencement of the crown suit, the 
 law was not so clearly settled. Where goods are taken on af. fa. 
 and remain in the hands of the sheriff unsold at the time when 
 a writ of extent, bearing teste prior to the delivery of the _/. /a,, 
 is delivered to him, the extent shall be preferred ; so where the 
 extent is tested on the same day that the f. fa. was delivered to 
 the sheriff, the extent shall he preferred, although the extent 
 was tested on a later period of the day than the issuing of the 
 f.fd'ip), for as between the crown and the subject the law does 
 not take notice of the fraction of a day. But it long remained 
 
 (I) Reg. V. Arnold, 7 Viiier, 105. 
 See also Sir Gerard Fleetwood's case, 
 8 Rep. 171a; Parker, 103. 
 
 (m) Properly ia goods is not al- 
 tered as against the crown by sale in 
 market overt ; 2 1 nst. 713; 35 Hen. 6, 
 
 p. 29 ; West, 96. 
 
 («) West, 97. 
 
 (r)) Butler (. Builer, 1 East, 340; 
 Rex V. Aldersey, cit. 1 East, 341. 
 
 (/)) Rex V. Crump and Hanbury, 
 Parker, 126; Rex v. Earl, Bunb. 33.
 
 SECT. II, 
 
 OF EXTENTS. 
 
 a doubtful point whether, when a sheriff had seized goods on a chap. xvi. 
 f.fa., which remained in his hands unsold, and an extent tested 
 subsequently to the delivery of the Ji. fa. was delivered to the 
 sheriff, the crown or the execution creditor should have the 
 preference. It was decided both in K. B.(q) and C. P(>) that 
 in such case the subject should be preferred. In the case of 
 Rex V. Wells and Allnutt(s), and the subsequent one of Rex v. 
 Sloper and Allen (t), the Court of Exchequer came to a different 
 determination, viz. that in such case the crown was to be pre- 
 ferred. The same question was agitated in an action for money 
 had and received, brought by the party at whose suit the Ji. fa. 
 issued against the sheriff, who had paid over the money to the 
 crown, and was then much argued in the Court of King's Bench, 
 but the case ultimately turned upon the form of the action being 
 incorrect (?i). At length, however, it was solemnly decided by 
 the House of Lords, in affirmance of the successive judgments of 
 the Court of Common Pleas and of the Exchequer Chamber, 
 that where the sheriff seized the goods of a debtor under a f. 
 fa., and whilst they remained in his hands unsold an extent in 
 chief, tested after the .seizure, was delivered to the sheriff, the 
 goods might be seized and sold under the extent, without regard 
 to the writ o(f.fa.; and further, that it made no difference in 
 this respect whether the extent was in chief or in aid (x). The 
 effect of the stat. 33 Hen. 8, c. 39, is thus stated in that case 
 by Lord Tenterden: — " I am of opinion that the true effect of 
 that statute is to allow the subject to obtain judgment, and even 
 to sue out execution, without first rendering satisfaction to the 
 king; but nevertheless to leave the law in all other respects as 
 it stood before, namely, if the king's execution comes while 
 the goods remain the property of the debtor (y), the king's exe- 
 cution shall prevail." The course to be pursued by the sheriff is 
 
 (q) Rorke u. Dayrell. 4 T, R. 413. («) Thurston v. Mills, 16 East, 
 
 Lord Kenyon's ground taken there, 264. 
 
 that the propertt/ in the goods is alteied (i) Giles t>. Grover, I Clark &c Fin- 
 by the seizure under \heji,fa., is now nelly, 72; 9 Bing. 128, S. C; 2 M. 
 abandoned. See Giles d. Grover, i;i- & Scott, 197. See also Stringefellow 
 fra, n. (r). v. Brownesoppe, Dyer, 67 b; Rex v. 
 
 ( r) Uppon ji. Sumner, 2 Bla. Rep Beck, Bunb. 8 ; and dicta in Attorney- 
 
 1251. General D.Capel, 2 Show. 480; Sniall- 
 
 (s) 16 East, 278, in notes. comb ?;. Buckingham, 5 Mod. C76; 
 
 (t) 6 Price, 114. See also Rex v. Rex v. Cotton. Parker, 112. 
 Osbourne. 6 Price, 94 ; Rex. t;. Giles, {y) See ante, 246. 
 
 8 Price, 293.
 
 364 
 
 OF THE EXCIIKQUER WRITS, 
 
 CHAP. XVI. 
 SECT. It. 
 
 Goods dis- 
 trained for 
 rent, &c. 
 
 When the 
 defendant 
 has become 
 bankrupt. 
 
 clear; for wliere an extent is delivered to the slierifl' whilst he 
 has goods in his hands taken by him on aji.fa., which has been 
 delivered to him prior to the teste of tlie extent, he should 
 refuse to proceed to sale without an indemnity from the plain- 
 tiff; if that be refused, the sheriff", when ruled to return the 
 writ, should apply for further time to make his return, which the 
 court will grant on an affidavit of the circumstances (^). But 
 if the goods have been sold under the Ji. fa. before the teste of 
 the extent, the proceeds in the sheriff"s hands shall be applicable 
 to the Ji. fa., and not to the extent (a). 
 
 Goods which have been distrained for rent before the teste 
 of the extent, but not sold, may be seized under the extent (6). 
 Nor is the landlord in such case entitled to a year's rent under 
 the statute 8 Anne, c. 14, s. 1. For by the eighth section of 
 that act it is provided, that " nothing in that act contained shall 
 extend or be construed to extend to let, hinder or prejudice her 
 majesty, her heirs or successors, in the levying, recovering or 
 seizing any debts, fines, penalties or forfeitures that are or shall 
 be due, payable or ansvverable to her majesty, her heirs or suc- 
 cessors ; but that it shall and may be lawful for her majesty, 
 her heirs and successors, to levy, recover, and seize such debts, 
 fines, penalties and forfeitures in the same manner as if that act 
 had never been made ; any thing in the act contained to the 
 contrary thereof in anywise notwithstanding (c)." 
 
 Goods of a bankrupt may be taken under an extent, the teste 
 of which is previous to the appointment of assignees ; for the 
 queen is not boimd by the acts relating to bankrupts, (not 
 being named therein,) and before the appointment of assignees, 
 the commissioners have but a power (rf). But if the goods are 
 vested in the assignees previous to the teste of the writ, they 
 cannot be taken on the extent, because then the property is 
 
 (z) Wells V. Pickman, 7 T. R. 174 ; 
 'J'huiston V. Thurston, 1 Taunt. 120; 
 In cases like these, the sheriff should 
 gel the jury to find the tact specially, 
 as was done in Rex v. Cotton, Parker, 
 112; and Rex. v. Wells and AllnuU, 
 16 East, 281. But the facts must be 
 found so that some certain traverse 
 may be taken on the inquisition; Rex 
 V. Sherwood, West, 1 14. 
 
 (a) Swain r. Morland, 1 Bred. & 
 
 Ring. 370 ; 3 Moore, 740, S. C. See 
 also Payne v. Drewe, 4 East, 540 ; 
 Rex V. Sloper, 6 Price, 1 14. 
 
 (h) Rex V. Cotton, Parker, 112; 
 and see West, 101. 
 
 (c) See Rex v. Pritchard, Bunb. 
 269. 
 
 (rf) Awdley v. Halsey, Sir W, 
 Jones, 202; Parker, 127; Brassey 
 t>. Dawson, 2 Stra. 978,
 
 tenl. 
 
 OF EXTENTS. 365 
 
 absolutely transferred (e). If the appointment of assignees and chap. xvi. 
 the teste of the extent be on the same day, the queen's prero- ^^^^' 
 gative shall prevail (/). 
 
 Goods assigned by the defendant before the teste of the ex- Goods as- 
 
 r< T -n 1 • /• J 1 signed to cre- 
 
 tent, m trust for creditors, if the assignment be not fraudulent, dUors. 
 cannot be taken on an extent, even though the defendant were a 
 trader within the bankrupt laws, and the assignment be an act 
 of bankruptcy, and void as against his assignees (g). But goods 
 fraudulently conveyed away before the teste of the extent to 
 defeat the execution, may be taken as well under an extent as 
 under a. Ji. fa. (Ji). The lien of an agent or factor of the crown 
 debtor on goods of his in the factor's hands, for bills of ex- 
 change accepted by him to the amount of the value of the goods, 
 will prevail against the right of the crown on an extent tested 
 after the goods came into the factor's hands (i). 
 
 As to priority between several writs of extent. Extents in chief Priority be- 
 take place inter se according to their teste. An extent in chief, J^uTof\x' 
 finding the same goods found upon a former extent in aid, shall 
 be preferred and paid before it (Jc). So after the sale of goods 
 on an extent in aid, and before the payment over of the money, 
 if an extent in chief come, and the same goods be found in the 
 inquisition, the extent in chief shall be preferred (^). If goods 
 are found on an extent in aid, and then an extent in chief 
 comes, on which goods are found, but not the same that were 
 found on the extent in aid, as to which no evidence is offered, 
 nor is it insisted that they should be found ; and then another 
 extent in chief comes, and the party prosecuting it offers to find 
 what was seized in aid, and is refused : the court will order a 
 new extent of the like teste as the second extent in chief, and 
 refuse it to the first extent in chief (?«). 
 
 (e) Rex V. Marsh, M'Clel. & der a subsequent extent which have 
 
 Younge, 250 ; Rex v. Crump and been found under a prior extent, it 
 
 Hanbury, Parker, 126 ; 1 Atk. 95. should be mentioned in the second in- 
 
 (/) Rex V. Earl, Bunb. 33. quisition that these goods are subject 
 
 {g) Rex D. Watson, West, 115. to the first extent. And where the 
 
 (Ti) West, 115. two extents are executed at the same 
 
 (j) Rex V. Lee, 6 Price, 369. See time, as the sheriff may have some 
 
 Rex V. Cuther, Parker, 118. doubt about their priority, it would 
 
 (/c) Reg. V. Quash, Parker, 281; seem to be the safest way to mention 
 
 Rex V. Larking, 8 Price, 683. in the inquisition under each extent 
 
 (/) Parker, 282. tiiat the goods are seized under the 
 
 (m) Rex D. Bowdage, Parker, 283. other extent; West, 118. 
 
 Where the same goods are found un-
 
 3G6 OF TIIK EXCHEQUER WRITS. 
 
 CHAP. XVI. Under an extent for duties or penalties incurred under tlie 
 
 ^^^^' "• excise laws, the utensils, goods, materials, preparations, and 
 
 iMaieriais vesscls, employed in the particular manufactory in which such 
 
 used in ma- . ii-i. i ii ii, 
 
 ntifactnring dutics and penalties have arisen, may be taken, although the 
 ariicic8. property in such utensils does not, nor ever did, belong to the 
 
 defendant; for by the stat. 28 Geo. 3, c. 37, s. 21, a specific 
 lien on such materials, &c. has been given to the crown for the 
 duties and penalties arising from such manufacture. So also if 
 the utensils have been seized and sold under aji.fa. prior to the 
 teste of the extent, yet they are liable to be taken under a crown 
 extent in the hands of such purchaser (n). And in the case of 
 Rex V. Wells and Allnutt (o), it was argued that the crown, 
 under the several excise laws, had a specific lien upon all the 
 goods and materials used by the defendant in his excise manu- 
 factory, and that no subsequent act of the defendant could divest 
 such lien. The point was not then determined. 
 
 It has been decided, on this statute, that the crown has a lien 
 upon malt for malt duties unpaid at the time of the bankruptcy ; 
 and the malt of the bankrupt is liable, although seized by the 
 assignees under the assignment (p). And if after the assignment 
 under a commission of bankrupt against a candle-maker, an infor- 
 mation be exhibited against him for not having paid the single 
 duties then due and payable for candles made by him for some 
 time before he was a bankrupt ; and upon such information he be 
 convicted in the penalty of double duties ; all his candles, and 
 all his materials and utensils for making candles, in the posses- 
 sion of the assignees, are liable to the payment of the double 
 duties (q). Under this statute, malt held by a maltster as a 
 pledge for the payment of bills of exchange accepted by him for 
 
 (n) The Attorney-General v. Fort, the teste of tlie crown's execution, and 
 
 Sittings at Serjeants' Inn, after Trinity it was adjudged that the return of nulla 
 
 Teim, 1804, on a special case; which bona was false, for which reason the 
 
 was an information against the sherifT sheriff was responsible to the crown 
 
 of Wilts, for a false return of mdla for damages to the amount of the value 
 
 6o«a loan exchequer execution against of these paper-making utensils; 8 
 
 a paper-maker for penalties incurred Price, 364. 
 under the 34 Geo. 3, c. 2, s. 1 , 9, 14, (n) 16 East, 278, n. 
 
 and 15. The sheriff had a few days (/>) Attorney-General v. Senior, 
 
 anterior to the teste of the crown's exe- Uougl. 416; Rex i>. Fowler, fft. 
 cution seized the paper-making uten- (q) Stracy v. Halse, Doug. 412. 
 
 sils of defendant's mill under a Ji. fa. Sed vide Austin c. Whitehead, 6 T. R. 
 
 and sold them ; but they remained in 437. 
 the sherifT's bailiwick at the time of
 
 crown debtor. 
 
 OF EXTENTS. 367 
 
 the maker of tlie malt, with liberty to sell it in case the bills are chap. xvi. 
 not paid, are seizable in the hands of the maltster for duties for ^^^^' "' 
 which he was liable in respect of other goods (9). 
 
 On an extent, the freehold lands of a crown debtor were liable, Lands of the 
 at the common law, to be taken for the crown debt, and may be 
 taken as well as his body and goods (r). The sheriff may seize 
 into the king's hands, not only the legal estate of the defendant, 
 but also trust estates (s), or an equity of redemption (t), or lands 
 over which the crown debtor has a power of revocation (u). But 
 copyhold lands cannot be taken under an extent (a;). Leasehold 
 property may be either taken as goods or chattels, or as the land 
 of the defendant (?/). And the interest of the crown debtor in 
 leaseholds renewable on lives may be taken under the statute 
 25 Geo. 3, c. 35, s. 1 (3). In one case it was held that a term 
 for years created out of an estate, prior to the right of the crown 
 attaching on the estate, and assigned to a trustee in trust for a 
 purchaser, would not protect such purchaser against crown debts, 
 though he purchased bond fide and without notice (ci). But in a 
 more recent case it was held, that a term of years originally 
 created out of an estate purchased by a person who afterwards 
 became a debtor to the crown, to secure a sum of money due 
 from him to one of the vendors, and vested in a trustee for that 
 purpose, and afterwards assigned to a trustee for a subsequent 
 pui'chaser of the estate to attend the inheritance, is not liable to 
 an extent for a crown debt, for the last purchaser claims directly 
 under the first incumbrancer, by a title paramount to the crown 
 debt (6). An equitable mortgage by deposit of title deeds by 
 an accountant of the crown in the hands of a person who has 
 an opportunity of knowing that the depositor is, or is likely to 
 become, a debtor of the crown, is not available against an ex- 
 tent (c). So an assignment, in a voluntary settlement, of a term 
 
 (5) Attorney-General v. 'I'rueinan, (^/) Fleetwood's case, 8 Rep. 179; 
 
 11 M, & \V. 694. See now the stat. but it is only bound from the teste of 
 
 4 & 5 Vict. c. 20. the extent, and not fiom the lime of 
 
 (r) See Wilde v. Fort, 4 Taunt. the crown debt being recorded. 
 
 334. (s) Reg. v. Lane, 6 M. & W. 489. 
 
 (s) Harbert's case, 3 Rep. 12. (a) Rex v. Smith, Sugd. Vend. 
 
 (t) Rex V, DelamoUe, Forest's and Purchas. Append. 24, 5th edit. 
 
 Rep. 162; R,ex v. Coombes, 1 Price, See Pleadings, M'Cleland's Rep. 417. 
 
 207; Hard. 488. (6) Rex v. Lamb, M'Cleland, 402. 
 
 (i() Godbolt, 289; Attorney-Gene- (c) Broughton v, Davis, 1 Price, 
 
 ral V. Sands, Hard. 488. 216. See Casberd v. Attorney- Gene- 
 
 («) Rex V, Lord Viscount Lisle, ral, 1 Daniel, 238. 
 Parker, 195.
 
 368 
 
 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. 
 SECT. II. 
 
 Lands from 
 what time 
 bound. 
 
 to a trustee to attend the inlieritance as limited by the settle- 
 ment, will not protect the inheritance in fee against a crown debt 
 due from the settlor (rf). But a bond fide agreement, on the 
 borrowing of money, that real property of the borrower shall 
 stand pledged for repayment of it, and a delivery of the title 
 deeds to the lender, creates a lien binding as against the prero- 
 gative lien of the crown in respect of a debt subsequently accru- 
 ing due to the crown from the borrower ; and the equitable 
 mortgagee is therefore entitled to be first paid his principal and 
 interest out of the produce of the sale of the lands, when seized 
 under an extent for the crown debt (e). 
 
 The lands are bound, as to time, according to the nature of 
 the debt. Debts of record seem always to have bound the lands 
 from the date of the record (/). Specialties do not bind the 
 lands otherwise than simple contract debts, which only bind the 
 lands from the time they are recorded {g). Bonds, which are 
 taken in the form prescribed by the 3Q Hen. 8, and which are 
 thereby put on the footing of statutes staple, bind the land from 
 the time they are entered into {h). Simple contract debts due 
 to the crown from any of the officers, collectors, receivers, &c. 
 described in 13 Eliz. c. 4, s. 2, bind the lands (if incurred at 
 any time during the continuance in office) from the time of 
 entering into the office (i). By the SS Hen. 8, c. 39, s. 74, 
 where the process of the crown is awarded, even on a simple 
 contract debt, before the subject's judgment, the crown is entitled 
 to a preference (/t) . But judgment and execution executed on 
 an elegit, before the commencement of the crown process, shall 
 be preferred to the extent (/). And it is said if the subject's 
 debt be by statute staple, or judgment, prior to the queen's debt, 
 and the queen extend the lands first, the subject shall not by any 
 after-execution take them out of the hands of the crown (m). 
 So if after an extent on such judgment, and before the liberate, 
 a crown extent comes to the sheriff, the subject's execution shall 
 be postponed to the crown extent (?0. Lands bargained and sold 
 
 ((0 Rex V. St. John, 2 Price, 317. 
 
 (e) Fector v. PhilpoU, 12 Price, 
 197. 
 
 (/) Gilb. Exch. 88; Dyer, 224; 
 8 Rep. 171. 
 
 (g) Rex V. Smith, 1 Wightw. 34. 
 
 (/() Ibid. 
 
 (0 West, 127, 128; Wilder. Fort, 
 
 4 Taunt. 334. 
 
 (k) West, 102, 
 
 (i) Attorney-General v. Andrew, 
 Hard. 23; West, 160. 
 
 (»») Gilb. Exch. 91 ; but see West, 
 151. 
 
 (m) Gilb. Exch. 91 ; but see West,
 
 OF EXTENTS. 
 
 369 
 
 by the commissioners of bankrupt to the assignees may be taken chap. xvr. 
 
 under an extent, the teste of which is subsequent to the bargain '. — 1— 
 
 and sale, but prior to the inrolment (o). 
 
 The debts due to the defendant are hable to a crown extent; Debts, what 
 
 •111 1 1-11 I'll 1 "'"y ^^ taken 
 
 even on extents m aid, debts to the thud degree are so liable, that on an extent, 
 is to say, those of the defendant's debtor's debtor, whether such 
 debts be by simple contract or by specialty (p). The defendant, 
 as well as his debtors to the third degree, are bound to disclose 
 the nature and particulars of such debts before the inquisition (^r). 
 Debts, like goods and chattels, are bound from the teste of the 
 writ of extent ; that is, a mere assignment of the debt to the 
 assignees of a bankrupt, or any other assignment thereof, between 
 the teste of the extent and the caption of the inquisition, will not 
 discharge the debtor as against the crown (r). But the payment 
 of a debt to the crown debtor, after the teste of the extent, and 
 before the caption of the inquisition, will discharge the party 
 paying without notice of the crown process ; for an inquisition 
 upon an extent finding a debt due to the crown debtor must 
 find it to be due on the day of the taking of the inquisition, as well 
 as on the issuing of the extent {s). Specialties, although not then 
 due (0 ; money in the defendant's possession («) ; or bills of 
 exchange in the hands of the crown debtor, although not due, 
 should be found in the inquisition (x), stating the liabilities of 
 the several parties on the bill to the crown debtor ; although it 
 would appear that if the bill were due at the taking of the inqui- 
 sition, the crown could not have a scire facias against the drawer 
 without finding a default by the acceptor {ij). If the crown 
 debtor has indorsed over a bill, which is not due at the time of 
 the inquisition, such debt should not be found {z). So if the 
 debtor of the crown debtor have accepted a bill drawn on him 
 by the crown debtor in favour of a third person (a) ; or if the 
 
 (o) West, 149. (i) West, 165. The regular proof 
 
 (p) Parker, 259. of the handwriting of the acceptor, 
 
 (?) Reg. V. Newell, Parker, 269. &c., requisite in an action on such an 
 
 (?■) West, 164; Reg. v. Arnold, instrument, is necessary to enable the 
 
 7 Vin. 104 ; S. C. West, 327. jury to find such liability ; if such evi- 
 
 (s) Rex V. Green, Bunb. 265; dence be not produced, the inquisition 
 
 S. C. West, 329; Rex in aid of Cox should find that the bill purported to 
 
 V. Gleny, West, 163, 164. be wade, 6;c. 
 (t) Hughes, 118, 119; West, 172, (y) West, 167. 
 
 173. (i) Rex V. DawsoD, Wighlw. 32. 
 
 (it) West, 172j but money is not (a) Hughes, 186;'West, 169. 
 
 bound fiom the teste of the extent.
 
 370 
 
 OF THE EXCIIEaUER WRITS. 
 
 CHAP. XVI. debtor to the crown debtor have drawn a bill on a third person 
 — ; — '. — !_ for the debt in favour of the crown debtor, which has been ac- 
 cepted by the drawee, and is not due at the time of the inquisi- 
 tion, such debts cannot be found on the inquisition (6). Under 
 an extent against one, the debts due to that one and others 
 jointly may be seized (c) ; but in such cases the partner of the 
 crown debtor may have account against the crown in equity (rf). 
 The sheriff has no power by virtue of the extent to levy or re- 
 ceive the debts found on the inquisition ; he is merely to seize 
 the debts, which is a mere seizure in law ; upon the return of 
 the inquisition the Court of Exchequer will issue a scire facias, 
 or immediate extent, to the sheriff, to levy the debt from the 
 debtor of the crown debtor. 
 Of the hold- If any goods are seized, or if information be given (which is 
 of the inqui- generally done by the officers of the revenue) that the defendant 
 has any lands or goods, or debts due to him, or has any other 
 property, it is the duty of the sheriff to hold an inquisition, in 
 order to find whether or not the defendant is possessed of any 
 property. A summons should be issued by the sheriff to the 
 defendant, and to all other pei'sons who can give any evidence 
 as to the defendant's property, to attend before the inquisi- 
 tion (e) ; if either the defendant or the witnesses summoned do 
 not attend, or refuse to answer any questions put to them (ex- 
 cepting only questions the answers to which would subject them 
 to punishment), the Court of Exchequer will grant an attach- 
 ment against them (/). It often happens that the defendant, 
 or other persons set up bond fide sales or mortgages of the de- 
 fendant's property ; in case of such claim, it is apprehended that 
 the evidence necessary in the Court of Exchequer in a similar 
 case should be required before the inquisition, viz. the actual 
 payment of the money by the vendee or mortgagee (g-). The 
 under-sheriff may either adjourn the inquisition, or hold another 
 
 (6) West, 169; Hughes, 155. an extent against William Forge, for 
 (c) West, 170. penalties for which the crown had 
 (</) West, 171. obtained a verdict against him for 
 (e) See form, Append, chap. 16, carrying on a private candle manufac- 
 sect. 2. tory. To this extent the defendants 
 (/) Reg. v Newell, Parker, 269. pleaded, that before the recovery of 
 (g) Rex V. Ward and oihers, exe- the king's judgment, Forge, in consi- 
 cutors of Ralph Kiltie, Excheq. 1803. deration of a certain sum of money, by 
 The defendants claimed property in indenture assigned the houses to de- 
 certain leasehold houses seized under fendaut's testator for the residue of
 
 OF EXTENTS. 
 
 371 
 
 before the return-day of the writ, to find the property not found chap. xvi. 
 
 by the first, and return both inquisitions to the court. The form ' 
 
 of the inquisition, and of the various findings, as well as in what 
 
 manner it is to be executed, will be found in the Appendix to 
 
 this work (A). The sheriff, on hearing the evidence, should 
 
 allow all competent witnesses to be examined ; for where he 
 
 refuses to permit a witness to be examined to prove the property 
 
 taken under the extent, or a question to be put in the nature of 
 
 a cross-examination, the court will quash the inquisition (i), as 
 
 the inquisition on an extent is an office of entitling, and not of 
 
 instruction. 
 
 In the findings, every fact should be stated with precision, 
 and the lands particularly described ; if the facts are not found 
 with sufficient precision, so as to enable the party to traverse 
 them, the return is bad, and the court will set it aside, and issue 
 a new writ (A;). 
 
 The sheriff makes his return to the extent according to the TLe return, 
 fact ; if there be no lands or goods, the sheriff should return 
 that at once ; if lands or goods be extended, the sheriff should 
 return that the execution of the writ will appear by the inquisi- 
 tion annexed, which inquisition, engrossed on parchment, under 
 the seal of the sheriff and of each of the jurymen, is annexed 
 to the writ. The sheriff returns cepi corpus or non est inventusy 
 
 the terms ; to which the attorney-ge- Wilson put in a plea denying the debt, 
 neral replied that this indenture was and the issue thereon was tried at the 
 made by fraud and covin; issue sittings after Hilary term, 1806, when 
 thereon. At the trial, the defendants Wilson's witnesses produced Sawyer's 
 proved the execution of the deed, and receipts for the money, and proved the 
 of Forge's signature to the receipt in- signatuies thereto to be Sawyer's hand- 
 dorsed, but the attorney-general in- writing. The attorney.general con- 
 sisted that the crown was entitled to a tended that the receipts were of no 
 verdict, forwant of proof of the testator validity against the crown; and that 
 having actually paid Forge the consi- notliing but proof of the money having 
 deration money. The lord chief baron been actually paid by Wilson to Saw- 
 ruled for the crown, and the jury gave yer would bar the crown. The lord 
 a verdict accordingly; the Court of chief baron, after hearing the point 
 Exchequerrefused to grant a new trial, argued by the counsel on behalf of 
 on a motion to that effect made oq Wilson, ruled in favour of the crown, 
 this ground. The same point arose The point was very fully argued on a 
 in Rex v. George Wilson, who, on motion for a new trial in the Exche- 
 an extent issued against one Sawyer, quer, in Trinity term, 1806, when the 
 was returned in the sheriff's inqui- court refused a new trial, 
 sition as being a debtor to Sawyer; (/i) Append, to chap. 16, sect. 2. 
 but Wilson refusing to pay this debt See also West, 330. 
 to the crown, an exchequer sci fa. (i) Rex v. Bickley, 3 Price, 454. 
 was issued against him : to the sci. fa. (k) Rex v, Sherwood, 3 Price, 269. 
 
 T! R 9.
 
 372 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. according to the fact. Upon an extent on a statute staple, the 
 ^^^^' "• sheriff returned the extent of the lands, and not of the goods, 
 yet it was held good (/). It is a good return hy the sheriff that 
 he hath extended the land of the defendant, but that he cannot 
 deliver the same, for that another had the same in extent be- 
 fore (m). So, as it seems, it would be a good return, that the 
 sheriff has extended goods or money of the debtor, but that 
 he cannot deliver it because it is in the possession of a third 
 party (n). 
 
 Venditioni The Court of Exchequer, after the return of the writ and 
 
 exponas. .... . . . 
 
 inquisition, will issue a writ of venditioni exjwnas, to sell the 
 goods, an order to sell the land, or a scire facias to collect the 
 debts. The court refused, at the instance of the crown, to direct 
 a sale by private contract instead of by auction, but referred it 
 to the remembrancer to certify which was the most advantageous 
 mode of selling the property (o). The duty of the sheriff is 
 only to issue his warrant to the bailiffs in possession, to proceed 
 according to the exigency of such writs or order (p). 
 Sheiiff's The sheriff is liable in an information at the suit of her 
 
 liabilities. . ^ o -i •/>ii 
 
 majesty s attorney-general for damages, if he has made a false 
 return {q), or has allowed the defendant, arrested by him by 
 virtue of an extent, to escape. 
 
 (/) Bro. Trav. 438. (o) Reg. v. Lane, 6 M. & W. 489. 
 
 (m) Dalt. 125, and see forms, post, (p) See form, post, Append, c. 16, 
 
 Append, c. 16, s. 2. s. 2. 
 
 («) Reg. V. Austin, 10 M. & W. ((/) Altorney-Geneial v. Fort, Esq. 
 
 691 . sheriff of Wilts, ante, p. 366, n. (n).
 
 POUNDAGE ON CROWN PROCESS. 
 
 373 
 
 CHAP. XVI. 
 SECT. III. 
 
 Section III. 
 Poundage on Crown Process (?). 
 By the statute 3 Geo. 1, c. 15, s. 3, it is enacted, that all sheriffs The pound- 
 
 •' ' age to be 
 
 who shall levy any debts, duties, or sums whatsoever, except allowed on an 
 
 ^ , ; , • , • 1 • 1 • il extent, &c. 
 
 post fines due to the king s majesty, his heirs or successors, by 
 process to them directed upon the summons of the pipe or green 
 wax, or by levari facias out of the Court of Exchequer, shall 
 have an allowance of 12d. out of every 20*. for any sum not 
 exceeding 100^. levied or collected, and 6d. only for every 20*. 
 above the first lOOZ. ; and for all debts (except posf fines) due 
 to his majesty, &c., by process o^ fieri facias and extent, issuing 
 out of the Court of Exchequer, \s. 6d. out of every 20*. for 
 any sum not exceeding 100/. levied, and I2d. only for every 
 20s. over and above the first 100/.; provided that such sheriff 
 shall answer the same upon his account by the general sealing 
 day of such term in which he ought to be dismissed the court, 
 or in such time to which he shall have a day granted to finish 
 his accounts by warrant signed by the lord chief baron, or one 
 of the barons of the coif of the said court for the time being. 
 
 Sect. 9 enacts, that when any sheriff shall, by process out of Apportion- 
 the Exchequer, seize or extend any goods, &c. into the hands of the laieanti 
 his majesty for any debts due to the crown, and shall die or be Biie^ffr*^" 
 superseded before a writ of venditioni exponas be awarded to 
 him for sale, or before such sheriff hath made actual sale, and a 
 writ shall afterwards be awarded to a subsequent sheriff, who 
 shall make sale, &c. of such goods, &:c. so seized by such pre- 
 ceding sheriff, in such case the Exchequer, if then sitting, and 
 if not sitting the said barons, or any one of them, being of the 
 degree of the coif, shall order and apportion poundage due for 
 such seizure and sale betwixt such preceding and subsequent 
 sheriffs, as to him or them shall seem meet, with regard to the 
 expense and trouble each sheriff hath had or shall have in the 
 execution of tlie said process. 
 
 Sect. 13. No sheriff, &c. in levying debts due to the crown Penalties for 
 by process out of the Exchequer, shall take any fee on pretence 
 
 (r) Which is not afTected by the 1 Vict. c. 55 {ante, p. 103), the crown not 
 being expressly named therein.
 
 374 OF THE EXCHEQUER WRITS. 
 
 CHAP. XVI. of such levying, &c. (except id. for an acquittance of such sum 
 ^^^^''"' as shall be levied), which acquittance such officer is to give to 
 the person on whom such debt, &c. is levied, and the bailiff, 
 &c. receiving such debt, &c., shall account for the same to the 
 sheriff, and may require an acquittance from such sheriff with- 
 out a fee ; from which debts the sheriffs shall discharge the 
 debtors by totting and answering the same on their accounts in 
 the Exchequer. 
 
 Penalties for And in case any sheriff, &c. shall nihil or not duly answer to 
 
 not duly an- ./ > j ^ 
 
 swering, &c. the crovvn any debt or sum so levied, collected, or received, such 
 sheriff, &c. for every such offence shall forfeit treble damages 
 to the party grieved, and double the sum so nihilled or not duly 
 answered as aforesaid ; which damages and penalty shall be 
 ordered, decreed, and given to the person grieved by the Court 
 of Exchequer, upon complaint and proof of such abuse as afore- 
 said, made and exhibited before the barons of the said court, in 
 such short and summary method as to them shall seem meet. 
 And in case any sheriff, &c. shall presume to demand, take, or 
 receive any sum of money of any person whatsoever, from 
 whom any debt is or shall be due and payable to the crown by 
 process out of the Court of Exchequer, for or in respect or 
 upon pretence of fees for collecting or receiving the same, con- 
 trary to this act ; or if any of the officers, &c. shall demand, 
 take and receive any sum for not levying, or forbearing to levy 
 any debts, &c., which are or shall be due to his majesty, and 
 written out to them, or any of them, by the process aforesaid, 
 in every such case every person so offending and convicted shall 
 be adjudged guilty of extortion ; and all persons, being thereof 
 lawfully convicted, shall forfeit for every such offence treble 
 damages and costs to the party grieved, and double the sum so 
 extorted, which shall be ordered, decreed and given by the 
 barons of the Exchequer, on complaint and proof made and 
 exhibited before them, in such short and summary method as to 
 them shall seem meet ; provided such conviction be had and 
 made within two years after such offence committed. 
 
 Sect. 14. Provided, that nothing shall be construed to deprive 
 any sheriff of such poundage or allowance as is allowed and 
 given to them by this act ; or of such poundage, allowance, or 
 reward, as may thereafter be made, allowed, and given by war-
 
 POUNDAGE ON CROWN PROCESS. 
 
 375 
 
 rant or order from the lord high treasurer or commissioners of chap. xvr. 
 
 the treasury, chancellor of the exchequer, or barons of the '. — L. 
 
 Court of Exchequer for the time being, for or in respect of any 
 extraordinary service to the crown that may happen to be per- 
 formed by them : but that the said sheriffs shall and may enjoy 
 the full benefit and advantage of such poundage, allowance and 
 reward, without any impeachment or molestation whatsoever. 
 
 Sect. 16. That whatsoever order or decree shall be made by Orders for 
 the barons for costs, damages, and penalties, in the cases afore- enforced. 
 mentioned, or any of them, or in any other case in that act 
 hereafter mentioned, by virtue of that act, in such short and 
 summary way and method as is before directed and prescribed, 
 shall have the same effect as any other order or decree of the 
 same court ; and the same costs, damages, and penalties shall be 
 raised, levied, and obtained by such process, ways, and methods 
 as are used in the said court to enforce a compliance with any 
 other orders or decrees of the same court. 
 
 The sheriff, under this statute, is entitled to his poundage. Sheriff's 
 
 » , 1 r> 1 , r> 1 1 poundage, 
 
 not from the defendant, but from the crown, or the prosecutor how levied 
 of the extent. The sheriff cannot levy his poundage over and 
 above the debt by virtue of an extent upon a simple contract 
 debt (5). But where the debt is secured by a penalty, then 
 poundage may be levied in addition to the debt, so that the 
 levy do not exceed the penalty (t). Where the crown is entitled 
 to its costs and charges, poundage may be levied as an item 
 thereof, as in suits on obligations or specialties made to the 
 queen, or to her use, under the 33 Hen. 8, c. 39 ; or under the 
 43 Geo. 3, c. 99, in extents against the collectors of taxes, by 
 which act the crown is entitled to costs and charges, so in either 
 of those cases or the like the crown may levy poundage where 
 the sheriff is entitled to poundage against the crown (i<). Where 
 the sheriff seizes land only on the extent, and the crown pro- 
 ceeds for the debt by sale of such land, under the statute 25 
 Geo. 3, and not by levari facias, the sheriff is not entitled to 
 poundage (v). The sheriff is entitled to his poundage on a levy, 
 under the 3 Geo 1, c. 15, on an extent in aid: and if the sheriff 
 seize under an extent in aid, and before a venditioni exponas the 
 
 (s) Rexi'.Tidmarsh,5Price, 189. («) West, 237. 
 
 («) Rex V. Dean, 2 Anst. 369. (v) Ibid.
 
 376 OF THE EXCHEQUER WRITS. 
 
 SECT. HI. 
 
 CHAP XVI. debt be paid to him, and he pay it over to the prosecutor of the 
 extent, he is entitled to his poundage (,t) ; so if the debt be paid 
 by compulsion of tlie levy to the prosecutor of the extent {y). 
 But though the whole debt be paid to the extent holder, it 
 seems that the sheriff shall have poundage only on the amount 
 levied {z). The sheriff may deduct his poundage out of the sum 
 levied on the extent, and need not wait for the allowance of it 
 in his accounts (a) : or if the whole money be paid over to the 
 prosecutor, the sheriff may obtain his poundage by motion in 
 court (&). 
 
 The sheriff cannot deduct any extra expense he has been put 
 to out of the sum levied, but must apply to the court for the 
 allowance of his extra charges (c), who will refer it to the mas- 
 ter to ascertain what the sheriff is fairly entitled \.o{d). He 
 cannot retain against the crown a sum of money deposited by 
 an agent of the crown to cover the expenses of the sale under 
 the vendilioni exponas (e). As to the apportionment of pound- 
 age between the sheriffs of two counties into which two extents 
 have been issued, it has been determined that if both sheriffs 
 seize goods, and the debt is paid to one of the sheriffs before a 
 venditioni exponas to either, that the sheriff to whom the money 
 is paid shall have full poundage (/). But in such case, where 
 the debt is paid to the officers of the crown immediately, the 
 poundage shall be apportioned between the sheriffs (g). 
 
 Section IV. 
 Sheriff's Accounts. 
 
 Sheriff's 
 
 It will be recollected, that by the sheriff's oath of office, he 
 charge as to swcars that " he will promote her majesty's profit in all things 
 
 debts, &c., /- 1 "^1 11 )) J 
 
 flue to the that belong to his office as far as he legally can or may, and 
 
 crown. 
 
 (x) Rex V. Jetherell, Parker, 180. (c) Rex v. Jones, I Price, 206. 
 
 (w) Rex i;, Fry,3 Anstr. 718, n. ; 3 (d) Rex v. Fereday, 4 Price, 131. 
 
 T. R. 470. (e) Rex v. Jones, 1 C. & J. 140. 
 
 (2)* West, 239. (/) Rex t', Caldwell, 1 Anstr. 279; 
 
 (n) Parker, 177; Bunb. 305 ; and Rex v. Barcher, 3 Anstr. 717 ; Rex 
 
 see Rex v. Jones, 1 Price, 205. v. Bowles, 1 Wiglitwick, 117. 
 
 (6) Rex V. Jetherell, Parker, 180. (g) Rex v. Fry, 3 Anstr. 718, n.
 
 SHERIFF S ACCOUNTS. 
 
 377 
 
 " that whensoever he shall have knowledge that the rights of chap. xvi. 
 
 the crown are concealed or withdrawn, be it in lands, rents, '. — L. 
 
 franchises, suits or services, or in any other matter or thing, he 
 will do his utmost to make them to be restored to the crown 
 again ; and if he may not do it himself, he will certify and inform 
 the queen thereof." This duty, says Dalton, is " 1st, truly to 
 keep the king's rights of his crown within his county, to wit, 
 the king's lands, franchises, suits, rents, and all other things that 
 belong to the crown. 2ndly, truly to gather (and bring into the 
 Exchequer) the profits and monies due to the king within his 
 bailiwick, to wit, the king's rents, farms, debts, issues, amercia- 
 ments, fines and forfeitures." It will be seen by reference to 
 Dalton, that the sheriff might, within his own county, ex officio 
 seize into the hands of the crown all lands which descended or 
 belonged to the crown (h), and it was his duty to keep the 
 king's franchises (i), to keep the king's suits (k), to collect the 
 king's rents (/), to be accountable for the ordinary issues and 
 profits of his county, (but not for other issues) (wz), amercia- 
 ments (w), and fines (o). So also he might seize ex officio to the 
 king's use the profits of the lands and the goods of persons 
 attainted, outlawed, &c. (p); or goods forfeited to the king as 
 hona waivata, estrays, and bona conjiscata (q) ; so he may take 
 treasure trove, wrecks of the sea (r), &c. Although the same 
 power still remains to the sherifF(«), yet he never acts in the 
 collection of the crown ex officio, but only when he is particularly 
 ordered so to do by process out of the Court of Exchequer, 
 or other courts having jurisdiction to enforce the payment of 
 fines, &c. 
 
 The sheriff, by his office, is the queen's bailiff to gather her Oftheappo- 
 
 , , ^ , ■ /. 1 O y 1XT-11 . />/A S3'' ^''Cl bow 
 
 rents ; and, before the passmg of the statute 3 & 4 Will. 4, c. 99, made, 
 the first thing, after his constitution, was to prefix him a day 
 to account ; and there were two other days prefixed, one after 
 the uias of Easter, and the other after the titas of Michaelmas ; 
 and these were called his proffers, because he then did proffer 
 
 (h) Dalt. c. 6. (o) Dalt. c. 13. 
 
 (i) Dalt. c. 7. (p) Dalt. c. 44. 
 
 Ik) Dalt. c. 8. Iq) Dalt. c. 15. 
 
 (0 Dalt. c. 9. (r) Dalt. cc. 16. 17, &c. 
 
 (m) Dalt. c. 11. (s) Rex v. Moseley Woolfe, 1 
 
 (n) Dalt. c. 12. Chit. Rep. 587.
 
 378 sheriff's accounts. 
 
 SECT. IV. 
 
 cuAP. XVI. the king's rents {t). The sheriff paid in proffers to the value of 
 the county rents, because these he must tot or o'ni' before the 
 curzitor baron ; he could not nihil these, because tlie lands 
 might be seized into the king's hands, and out of the profits and 
 issues the rents might be answered, as the sheriff was looked 
 upon to farm the rents, and therefore was obliged to pay them 
 to the crown ; but he might o'lii (oneratur nisi haheat snfficien- 
 tem exonerationem) these rents ; for if the king granted any of 
 them, he might show the record in his discharge (m). When the 
 sheriff, or rather the under-sheriflP (for the sheriff used not to 
 attend), kept his day of prefixion, he was to be apposed (x) 
 before the barons upon the great roll, before the cursitor baron 
 on the summons of the pipe, and before the foreign apposer 
 upon the summons of the green wax ; which is, that the sheriff 
 was put to account on the different processes which he had re- 
 ceived from the Exchequer, and which was done either by 
 charging himself with the receipt of certain sums, or totting, as 
 it was termed ; where he had not been able to levy any thing, 
 he answered nihil, excepting as to the crown rents with which 
 he was chargeable (y) whether he had received them or not. 
 The rents charged against the sheriff were generally some gross 
 sum, as 100/. or 50/. ; in Norfolk they were greater (2) ; but 
 afterwards, by the statute 3 Geo. 1, c. 15, s. 2, it was enacted, 
 " that the lord treasurer, commissioner of the treasury, and 
 the barons of the exchequer, or two or any more of them, 
 should and might from time to time, at request of any sheriff or 
 sheriffs, or as often as they should think fit, call before them the 
 remembrancer in the Court of Exchequer, commonly called the 
 treasurer's remembrancer, and the clerk of the pipe, or their 
 deputies, secondaries, and such other officers as they should 
 think fit, and should cause the said officers, or some of them, to 
 bring before them an account or particular of all the rents and 
 certainties written out yearly in processes to the sheriff in each 
 respective county in England to levy for the crown ; and, upon 
 
 (t) Gilb. Exch. 147. For not make him account, 
 coming in at those days, the sheriff (^^) Gilb. Exch. 150. 
 
 was considered as an accountant in (x) This word is said to be derived 
 
 default, and therefore a fine of 5/. per from the Latin verb, apponere. 
 diem was set upon his head for four (y) See ante, 353. 
 
 days together to bring him in; which (s) Gilb. Exch. 149, 150. 
 
 was levied by ^. fa., or a distress to
 
 sheriff's accounts. 379 
 
 due examination and consideration thereof had, were thereby chap. xvi. 
 
 empowered and required from time to time to alter, diminish, ! — 1_ 
 
 reduce or establish the several sums wherewith the said sheriffs 
 stood chargeable on the rolls or inoffers in the said Court of 
 Exchequer, to such reasonable and moderate sums as to them 
 should seem just and reasonable, with regard to the amount 
 or value of the rents in each county respectively, and that 
 the orders of the Court of Exchequer be drawn up pursuant 
 thereto, and entered upon record in the several offices of his 
 majesty's remembrancer, the lord treasurer, or the commis- 
 sioners of the treasurer's remembrancer, and the clerk of the 
 pipe, some time before the last day of Michaelmas term then 
 next following ; and that from time to time the sum and sums 
 of money so reduced, ascertained and settled, should be deemed 
 and taken to be the 'proffers of each respective county, and the 
 rolls of proffers from time to time shall be made conformable 
 thereto ; and the said sum and sums so reduced, ascertained 
 and settled as aforesaid, and no other, should be paid by the 
 said respective sheriffs for their proffers, at the days and times 
 and in the manner formerly used for proffers." 
 
 The fees payable by the under-sheriff on passing the accounts, 
 for their apposals, and for making out their quietus to the offiq^rs 
 in the exchequer, were regulated by the statute of 3 Geo. 1, 
 e. 15, s. 1. 
 
 The sheriff's accounts of the English counties (excepting the s^g^iff, ^f 
 counties palatine) were (before the 3 & 4 Will. 4, c. 99) passed ^"f/^.'J^be."'' 
 before the clerk of the pipe. By the 22d section of the statute ^"//J^^,"'" *** 
 3 Geo. 1, c. 15, it was enacted that the sheriffs of Wales should 
 not be compelled to appear to be apposed in his majesty's Court 
 of Exchequer, but might account before his majesty's auditor or 
 auditors of the principality of Wales, and not elsewhere, any 
 law, statute, custom or usage to the contrary notwithstanding ; 
 and the quietus of the said sheriffs, under the auditor's hand, or 
 that of his deputy, was to be a sufficient discharge to the said 
 sheriffs in that behalf (a). And by the same act, section 23, as to 
 the passing of the accounts of the sheriffs of Chester, Lancaster 
 and Durham, it was enacted that the respective auditors of the 
 said counties or their deputies, by virtue of their respective 
 
 (a) See also 11 Geo. 4 & 1 Will. 4, c. 70, s. 33.
 
 380 sheriff's accounts. 
 
 CHAP. XVI. offices, should take, state, and allow the accounts of the sheriffs 
 ^^^^' '^' of the said respective counties, and appose the said sheriffs re- 
 spectively touching the execution of the process to them respec- 
 tively directed, called the king's process ; and that the said 
 respective sheriffs, upon such their accounts touching the pre- 
 mises, should have, sue forth, and obtain their respective quietus 
 est and discharge from the said respective auditors or their de- 
 puties, according to the ancient course and usage of the sheriffs 
 of the said counties palatine only. And by the same statute, 
 section 24, the sheriffs of the city and county of the city of 
 Chester, and their successors, were enabled to account, as for- 
 merly, before the mayor of the same city and his successors for 
 the time being, for and touching all such matters and things 
 as had been theretofore granted from the crown to the same 
 city in and by their several and respective charters. And by the 
 25th section of the same statute, the sheriff's of the said city of 
 Chester, and their successors, might at all times thereafter ac- 
 count for and concerning the same before, and be apposed by, 
 and obtain their quietus est and discharge from, the auditor of 
 the county of Chester or his deputy, in like nianner as the she- 
 riffs of the said county of Chester were by that act appointed 
 to.do, and not elsewhere, or in any other manner whatsoever. 
 3 & 4 Will. 4, Such was the complicated form of accounting to which sheriffs 
 
 c. 99. 
 
 were subjected before the passing of the statute 3 & 4 Will. 4, 
 c. 99 ; but by the 1st section of that act (after reciting that the 
 appointment of sheriffs, and the audits and passing of their ac- 
 counts in the Court of Exchequer, are attended with unneces- 
 sary expense, delay, and trouble), it is enacted that so much of 
 the 3 Geo. 1, c. 15, as entitles and authorizes certain officers 
 therein and in the schedule thereto mentioned to demand and 
 receive the fees named in that schedule, and also the statute 
 3 Geo. 1, c. 16 (for better enabling sheriffs to sue out their pa- 
 tents and pass their accounts), shall be repealed. The 2nd sec- 
 tion then proceeds to enact, " that, from and after the passing of 
 this act, it shall not be necessary for any sheriff or sheriffs of any 
 county, city, or town in England or Wales, to sue out any patent 
 or writ of assistance, or to make or pay proffers, nor shall any 
 bailiff or bailiffs of liberties in England or Wales be required to 
 make or pay any proffers, nor shall he or they have any day of 
 prefixion, or be apposed, or take any oath or oaths before the
 
 SHERIFF S ACCOUNTS. 
 
 381 
 
 cursitor baron to account, or account, or be cast out of court, chap. xvi. 
 
 as now or heretofore in use in his majesty's Court of Exchquer, ., L 
 
 any law, statute, or usage to the contrary notwithstanding." 
 
 The 8th section then enacts, that the accounts of the present 
 and future sheriffs of counties, cities, and towns within England 
 (except the counties palatine of Chester, Lancaster and Dur- 
 ham) shall thenceforth be examined and audited by the com- 
 missioners for auditing public accounts, appointed under the 
 statutes 25 Geo. 3, c. 52, 46 Geo. 3, c. 141, and 1 & 2 Geo. 4, 
 c. 121. 
 
 The 9th section provides, " that every person and persons 
 who now are or who hereafter shall be sheriff or sheriffs of any 
 county, city or town within England (except the said counties 
 palatine of Chester, Lancaster and Durham) shall within two 
 calendar months next after the expiration of his or their office, 
 or in case of the death of any sheriff or sheriffs, the under- 
 sheriff by him or them appointed, shall within two calendar 
 months next after the death of such sheriff or sheriffs, transmit 
 to the said commissioners for auditing public accounts a just 
 and true account, under his or their hand or hands, of all sums 
 received by such sheriff or sheriffs to or for the use of his ma- 
 jesty, and of all sums paid or claimed by him or them, or on his 
 or their behalf (save such sums as are or have been usually 
 inserted and allowed in the bill of cravings), with all such par- 
 ticulars as shall be needful to explain the same : provided al- 
 ways, that such under-sheriff shall not be personally responsible 
 for any sum or sums received by such deceased sheriff, but that 
 the same shall be answered by the representatives of the said 
 deceased sheriff, or otherwise in due course of law : provided 
 always, that the sheriff of Westmorland shall yearly, within two 
 calendar months next after the first day of January in every 
 year, transmit or cause to be transmitted to the said commis- 
 sioners for auditing the public accounts a like account under 
 his hand, or the hand of his under-sheriff, of all sums paid by 
 him to or for the use of his majesty within or during the year 
 of our Lord next preceding, and of all sums paid or claimed 
 by him or on his behalf during the same period (save such sums 
 as are or have been usually inserted in the bill of cravings), with 
 all such particulars as shall be needful to explain the same." 
 By the 10th section, " in case it shall be necessary for any
 
 S82 sheriff's accounts. 
 
 CHAP. XVI, such sheriff or sheriffs, or his or their under-sheriff, to make 
 ^^"° '^' oath or affidavit to any such account, or any article, matter, or 
 thing relating thereto, such oath or affidavit, except when the 
 said commissioners shall require his or their personal examina- 
 tion before them, shall and may be sworn before any of the 
 judges of his majesty's superior courts of record at Westminster, 
 or before any commissioner for taking affidavits in any of the 
 same courts, or before any master or master extraordinary in 
 the High Court of Chancery, or before any of his majesty's 
 justices of the peace." 
 
 The 11th section provides, that the claim of every sheriff for 
 certain allowances usually called the bill of cravings (that is, the 
 bill of charges paid by the sheriff for the judges' lodgings, &c. 
 at the assizes, for crown calendars, for the execution of cri- 
 minals, &c.), shall, after the passing of that act, be preferred to 
 the lord high treasurer or commissioners of the treasury, who, 
 or any three or more of whom, shall grant a warrant for the 
 allowance of the same in the account of such sheriff, or for the 
 payment of such sum or sums of money in respect thereof as 
 they shall think reasonable in that behalf. 
 
 The 39th section saves the rights, liberties, and privileges of 
 the crown in right of the duchy and county palatine of Lan- 
 caster and duchy of Cornwall, of the Bishop of Durham and the 
 county palatine of Durham (a), and the rights, customs, &c. of 
 the city of London ; and the 40th section provides, that nothing 
 in the act contained shall prejudice the rights, liberties and pri- 
 vileges of the city and county of the city of Chester, but that 
 the sheriffs thereof shall and may account and obtain their 
 quietus in like manner as had theretofore been accustomed. 
 
 The mode of making up, transmitting, and passing the ac- 
 counts of the sheriffs in England and Wales is now as follows : 
 The sheriffs of all counties, cities, and towns in England (ex- 
 cepting those above referred to) receive, about the period of the 
 expiration of their term of office, three copies of the printed 
 form of account given in the Appendix (6): within two calendar 
 months next after the expiration of office or death of the sheriff 
 (as the case may be), or, in the case of Westmorland, within 
 
 (a) As to which see 6 & 7 Will. 4, c. 19, whereby the palatinate rights are 
 transferred to the crown; and atite, p. 11. {b) Chap. XVI. sect. 4.
 
 SHERIFF S ACCOUNTS. 
 
 383 
 
 two calendar months after the 1st of January in every year, the chap. xvr. 
 
 blank forms so received are filled up, signed by the high sheriff, LJ — L 
 
 and, with the bill of cravings, are transmitted either directly or 
 through the agent employed to pass the accounts, one to the 
 treasury, one to the audit office, and one to the office of the 
 queen's remembrancer. The bill of cravings is also at the same 
 time transmitted to the treasury, and from thence sent to the 
 secretary of the chancellor of the exchequer, who reviews or 
 taxes it, and gives his allocatur ; it is then signed by three or 
 more lords of the treasury. The person passing the accounts 
 then prepares a receipt, to be signed by the sheriff, of the 
 amount allowed on the bill of cravings, and upon the production 
 of that receipt receives a cheque at the treasury upon the Bank 
 of England for that amount. After acceptance thereof, the per- 
 son passing the accounts attends before the inspector and re- 
 ceiver-general of fines and penalties, who examines the account 
 transmitted to and received by him from the treasury with the 
 quarterly returns received from the different clerks of the peace, 
 and the copies of the process issued from the Court of Exchequer, 
 from the superior courts and courts of assize, and then forwards 
 it with his certificate to the commissioners of audit, by whom it 
 is then passed. The inspector and receiver-general of fines and 
 penalties also receives from the sheriff the amount due from 
 him on the balance of the account, if any. 
 
 Formerly, if the sheriff disbursed more money for the crown Surpinsage, 
 than he had received, the remedy was by record of surplusage, 
 which proceeding was both dilatory and expensive : to remedy 
 which inconvenience, by the statute 3 Geo. 1, c. 15, s. 7, it was 
 enacted, " that from the first day of Michaelmas Term, 1717, 
 if any sheriff of any county in England (except the counties 
 palatine of Chester, Durham, and Lancaster, and the several 
 counties of Wales, which do not pass their accounts before the 
 clerk of the pipe) shall happen to be in surplusage upon his ac- 
 count, by reason of any disbursements whatsoever by him made 
 for the service of his majesty, his heirs or successors (other than 
 for the rewards of 40^. severally and respectively allowed and 
 given by virtue of the several acts thereinbefore mentioned to 
 such persons as shall apprehend a clipper, coiner, highwayman, 
 or housebreaker), such sheriff shall not be obliged to take out a
 
 384 sheriff's accounts. 
 
 CHAP. XVI. record of surplusage for the same, but shall and may apply to 
 SECT. IV. j.|,g ]pj.^ i^igi, treasurer of Great Britain, or to the commissioners 
 of the treasury for the time being, for the payment of such sur- 
 plusage, who are hereby required and authorized to pay the 
 same upon the sheriff's producing a certificate of such surplus- 
 age from the clerk of the pipe or his deputy."
 
 ( tm ) 
 
 CHAPTER XVII. 
 
 OF JURIES, AND OF THE SHERIFF'S DUTY AT SESSIONS AND 
 ASSIZES. 
 
 Sect. I. — Of Juries; who are qualified to serve on. — List of Per- 
 sons qualified, how made out. — Venire facias, She- 
 riff's Duty thereon. — Sjjecial Juries, how struck and 
 summoned. — Penalty on Sheriff" for breach of Duty. 
 n. — Sheriff"' s Duty at Assizes. 
 III. — Sheriff's Duty at Sessioiis. 
 
 Section I. 
 
 Of Juries. 
 
 We come now to treat of the sheriff's duty respecting the re- Venire/a- 
 turning and summoning of juries. Ihe sheriii is the orncer ot directed. 
 all the superior courts to return and summon juries; when 
 causes are at issue, the courts issue their writs of venire facias 
 directed to the sheriff, commanding him to cause a jury to come 
 according to the exigency of the writ. If the sheriff (a) be in- 
 terested in the suit, or of kin to the parties, the venire suggesting 
 such fact should be directed to the coroners of the county. If 
 the coroners also be interested, the venire should be directed to 
 two persons named by the court for that purpose, and sworn, 
 who are called elisors. 
 
 The qualifications of iurors, and the exemptions and disquali- Of the jurors' 
 
 - . . . Ill book, 
 
 fications of persons from serving on juries, are now regulated by 
 the statute of the 6 Geo. 4, c. 50, s. 1, 2, 3, 48, 49, 50, and by 
 the 5 & 6 Will. 4, c. 76, ss. 122, 123, and 2 & 3 Vict. c. 71, s. 4, 
 which statutes will be found at large in the Appendix to this 
 work. By reference to the 4th, 5th, Gth, 7th, Sth, 9th, 10th and 
 
 (o) If the sheriff be a party, or be of relation to the parties, or inte- 
 akin to the parties, or his under-sheriff rested, this is a cause of challenge to 
 or tiie person who summoned the jury the army.
 
 386 
 
 OF JURIKS. 
 
 CHAP. XVII. 
 SECT. I. 
 
 Juries, liow 
 selected. 
 
 11th sections of tlie 6 Geo. 4, c. 50, will be found the manner in 
 which an annual jurors' book is to be formed, wliich book is to 
 be kept by the sheriff, and from which he is to select the jurors. 
 By the 12th section of the same act it is. provided, " that the 
 clerk of the peace shall keep lists returned (as in the act directed), 
 arranged with every hundred in alphabetical order, and every 
 parish and township within such hundred likewise in alpha- 
 betical order, and shall cause the same to be fairly and truly 
 copied in the same order in a book to be by him provided for 
 that purpose, at the expense of the county, &c., with proper 
 columns for making the register thereinafter mentioned, and 
 shall deliver the same book to the sheriff of the county, or his 
 vmder-sherifF, within six weeks next after the close of such ses- 
 sions, which book shall be called * The Jurors' Book for the 
 
 year ,' (inserting the calendar year for which such book is 
 
 to be in use) ; and that every sheriff, on quitting his office, shall 
 deliver the same to the succeeding sheriff; and that every jurors' 
 book so prepared shall be brought into use on the 1st day of 
 January after it shall be delivered by the clerk of the peace to 
 his sheriff, or under-sheriff, and shall be used for one year then 
 next following. 
 
 The sheriff, coroners, or elisors, upon the receipt of every 
 writ oi venire facias and precept for the return of jurors, are to 
 return the names of men contained in the jurors' book for the 
 then current year, and no othei's, unless there be no jurors' book 
 for that year, then from the jurors' book for the year pre- 
 ceding (b) : and by the 39th section of the above-mentioned act, 
 the sheriff is indemnified for impannelling and returning any man 
 named in the jurors' book; although he may not be qualified or 
 liable to serve on juries; but if the sheriff shall wilfully return 
 any man to serve on any jury (excepting the grand jury at 
 assizes), whose name is not in the jurors' book for the current 
 year, the court m.ay set such fine upon the sheriff as the court 
 shall think fit. The sheriff is to keep an alphabetical register in 
 the jurors' book of all persons who have been summoned and 
 have attended as jurors on trials at assizes, and to give every such 
 person a certificate of his attendance and service (c). And the 
 clerk of the peace is to make out, and transmit to the sheriff, a list 
 of all persons who have served either on the grand or petty jury 
 (/-) 6 Geo. 4, c. 50, s. 14. (c) 6 Geo. 4, c. 50. s. 40.
 
 OF JURIES. 
 
 387 
 
 at sessions, and those persons' names are to be included in the chap. xvn. 
 
 register in the sheriff's book as having so served (c?), —-^ 
 
 In Middlesex, no rierson shall be returned as a iuror, who has Persons iiav- 
 
 . ... ... '"§ served, 
 
 served at any session of nisi prins, or eaol delivery, in either of how long ex- 
 
 1 . ,• 1 1 11 1 enipted. 
 
 the two terras or vacations preceding ; and no man snail be 
 returned as a juror to serve on trials before any court of assize, 
 gaol delivery, &c., who has served as a juror at any of the 
 courts within one year before in Wales, or in the counties of 
 Hereford, Cambridge, Huntingdon, or Rutland ; or four years 
 before in the county of York ; or two years before in any other 
 county (e). 
 
 By the 25th section of this act, it is required that the officer Summons of 
 
 1 11 . . , , . . , jurors, when 
 
 shall summon every person to serve on juries (not being special and how 
 juries), by leaving a note in writing at the dwelling of such per- 
 son ten days at least before the day on which the juror is to 
 attend. And the summons of special juries is, in like manner, 
 to be three days before the day of attendance (excepting in 
 London and Middlesex, where no longer time is required for the 
 summoning of juries than heretofore) ; but where there shall not 
 be ten days between the awarding of such writ and the return 
 thereof, every person may be summoned, attached, or distrained, 
 to appear at the day or time therein mentioned, as he might 
 theretofore have been. 
 
 At the assizes the jury process should therefore, in the case of 
 common jurors, be sent to the sheriff ten days, and in the case 
 of special jurors three days, at leasts before the commission 
 t% (/). 
 
 By the 43d section of the 6 Geo. 4, c. 50, it is enacted, that Punishment 
 
 . . ... ,T °" officers 
 
 no sheriff, under-sheriff, coroner, elisor, bailiff, or other officer taking re- 
 
 1 1 11 T 1 • T 1 1 wards for not 
 
 or person whatsoever, shall, directly or indirectly, take or re- summoning 
 
 , , . p persons to 
 
 ceive any money or other reward, or promise of money or serve on ju- 
 reward, to excuse any man from serving or from being sum 
 moned to serve on juries, or under any such colour or pretence ; 
 and that no bailiff or other officer appointed by any sheriff, 
 under-sheriff, coroner, or elisor, to summon juries, shall summon 
 any man to serve thereon other than those whose names are 
 specified in a warrant or mandate signed by such sheriff, under- 
 sheriff, coroner, or elisor, and directed to such bailiff or other 
 
 (d) 6Geo. 4,c. 50,s.41. (/) Charlton v. Burfit, i M. & 
 
 (e) Ibid. s. 42, Scott, 450. 
 
 c c 2 
 
 ries.
 
 388 OF JURIES. 
 
 CHAP. XVII. officer ; and if he shall wilfully transgress in any of the cases 
 ^^^'''' '• aforesaid, or shall summon any juror, not being a special juror, 
 less than ten days before the day on which he is to attend, except 
 the cases thereinbefore excepted," the court under whose ju- 
 risdiction it falls is empowered to set such a fine upon every 
 person so offending as the court shall think meet. 
 Panels, iiow When the sheriff receives the venire facias, we have seen that 
 '"^ ^' he is to select the persons to serve on the jury from the jurors' 
 
 book. The panel which he annexes as his return must contain 
 the names of the jury alphabetically arranged, with their places 
 of abode and their addition ; the same panel is affixed to every 
 venire facias at the same assizes. The number of jurors for any 
 county is not to be less than forty-eight, nor more than seventy- 
 two, unless by order of one of the justices of assize. In prac- 
 tice, the venire issues at the same time as the distringas, or 
 habeas corpora jiirator urn, although these latter writs presume a 
 default in the appearance of the jurors on the venire (g). In 
 court, at the assizes, the sheriff returns the several writs of habeas 
 corpora, or distringas, in each cause, with the same panel annexed 
 to each (h). 
 Listsof jurors By section 19, the sheriff is to make out an alphabetical list of 
 insp^ec'itou. "' the names of the persons contained in the panels to the several 
 writs of venire facias, and shall keep the same in the under- 
 sheriff's office at least seven days before the assizes, and the 
 parties in the suits or their attornies, without fee, are to be at 
 full liberty to inspect such list. 
 Names to be And by the 26th section of that act, the under-sheriff (or 
 put in a box. gg(.Qj-,jj.jry in London) is to write the name of each juror, with 
 his addition, on a separate card or piece of parchment, and deliver 
 the same to the associate. And twelve names are to be drawn 
 indiscriminately from a box in which these pieces of parchment 
 or card are placed (i). 
 Special jii- The sheriff has also to summon special juries. The panel 
 
 affixed to the venire facias is made in the same manner as in 
 common juries ; but the qualifications of special jurors, and the 
 
 (g) See s. 16, G Geo. 4, c. 50, by (h) See Rogers v. Sraitli, I Ad. & 
 
 which a plaintitF is allowed to sue E. 772 ; 3 N, & M. 772, S. C. 
 out a new writ of venire facias, where (i) See this section at length iu 
 
 di venire facias and distringas had al- the Appendix, for the detailed provi- 
 
 ready issued, but not been proceeded sions therein contained, 
 on. 
 
 ries
 
 OF JURIES. 
 
 389 
 
 manner in which they are to be selected, will be found by re- chap. xvu. 
 
 SECT I 
 
 ference to section 30, 31, 32, 33, 34 and 35, of the Jury Act, '- 
 
 which will be found in the Appendix to this chapter ; and as to 
 the mode of granting views, see s. 23. 
 
 If a judge's order is made for the return of a " good jury" Good jury, 
 upon a writ of inquiry (?'), that means a jury taken from the 
 special jury book (A"), 
 
 The statute of 6 Geo. 4, c. 50, has left the power of judges of Jnries iu cri- 
 
 . minal cases, 
 
 gaol delivery to make any award or order, orally or otherwise, &c. 
 for the return of a jury for the trial of any issue in any criminal 
 court, as it formerly stood ; this is expressly provided for by 
 section 20 of that act. And by section 22 it is enacted, that 
 where the justices of assize shall so direct, the sheriff may 
 summon and impanel such number of jurors, not exceeding 
 144, as such justices shall direct, to serve indiscriminately on 
 the criminal and civil side, to be divided into two lots, one set 
 to attend at the commencement, the second at the end of the 
 assizes. 
 
 By section 46 of that act it is enacted, " that if any sheriff or Punishmetit 
 
 .' ' _ •' , of sheriff for 
 
 under-sheriff shall neglect or refuse to provide or prepare a list misbe- 
 of special jurors in the manner or within the time prescribed, 
 or shall wilfully write or cause to be written therein the name 
 of a person not qualified, or shall wilfully omit thereout the 
 name of any person duly qualified as a special juror, or shall 
 neglect or refuse to write, or cause to be written, the several 
 numbers contained in such list upon distinct pieces of parch- 
 ment or card in the manner and within the time prescribed, or 
 shall subtract or destroy, or by any default or neglect lose, any 
 of the said pieces of parchment or card, or shall neglect or refuse, 
 upon discovery of such loss, to supply the same within five days; 
 or shall neglect or refuse to prepare, or keep for inspection as 
 aforesaid, a copy of the panel in the case provided for, or to 
 register the service of any juror as by the act directed, or to 
 deliver to any man who shall have been summoned and have 
 duly attended and served as a juror at any court of assize, &c., 
 a certificate of such man's service, on his application and pay- 
 ment as aforesaid, or shall refuse or neglect, within ten days 
 after the next succeeding sheriff shall be sworn into or have 
 
 (i) R. G., H. T. 2 Will. 4. (k) Price v. Williams, 5 Dowl. 160.
 
 390 OF JURIES. 
 
 SECT. I. 
 
 CHAP, xvH. entered upon office, to deliver over to him, as well all the jurors' 
 books and lists that shall be made or prepared in the year of his 
 shrievalty, as also all such other like books and lists as were 
 prepared in the shrievalty of any of his predecessors, within four 
 years then next preceding, and which were delivered over to him 
 by any of his predecessors :" such sheriff or under-sheriff of- 
 fending in any of the said cases shall for every such offence 
 forfeit the sum of 50/., one half to the crown, the other half to 
 the informer. 
 
 Section II. 
 
 The Sheriff's Duty before and at the Assizes, 
 
 Assize pre- A sufficient time before the circuit, the sheriff will receive the 
 
 cepU. . , , .... 
 
 assize precepts, and also precepts to summon special juries' ; 
 
 the forms of these precepts will be found in the appendix to this 
 chapter. 
 
 The sheriff's duty before and at the assizes consists in — 1st, 
 proclaiming the assize ; 2ndly, the summoning of the different 
 juries, viz., the grand jury, the nisi lirius jury, the crown jury, 
 and also the special juries, if any, and granting views ; 3dly, 
 making his returns to the assize precepts ; 4thly, making and 
 delivering a list of the prisoners to the judges, and attending the 
 judges, providing lodgings, &c. 
 Warrants to On the receipt of the assize precepts, warrants should forth- 
 with be made out and delivered to the bailiffs of each hundred, 
 commanding them to summon the grand jury, to make procla- 
 mation of the assize, to give notice to coroners, constables, &c. 
 to attend, and to summon the jurors named in the margin to 
 attend The sheriff, where there are any special juries, should 
 direct his warrant to the bailiff to summon them. The sheriff 
 makes the proclamation required himself, by inserting an ad- 
 vertisement in the county newspapers ; in some counties this 
 is done by placarding printed proclamations in the principal 
 towns and villages throughout the county. 
 Snmmoning There is no statutable regulation respecting the persons to be 
 jury!'^*" summoned on the grand jury ; and as in all counties it is con- 
 sidered an honour, the sheriff should summon the gentlemen of
 
 SHERIFF S DUTY BEFORE AND AT ASSIZES. '^'^ 
 
 fortune in his county below the rank of peer. A list of persons chap. xvii. 
 
 T • • • U SECT. II. 
 
 who are usually summoned on grand juries at assizes may be 
 
 obtained from the former under-sheriff, and these are to be 
 inserted in the warrants : the number summoned is always much 
 greater than the number of grand jurors sworn. 
 
 The sheriff's return to the assize precept consists of four ^^^l^'^'-p^^.'^^ 
 panels. On the back of the precept the sheriff indorses the ccpts. 
 reference to the panels, viz. " the return of this precept appears 
 in certain panels hereunto annexed,'" and that he has made pro- 
 clamation (J) ; those panels are : — 
 
 1st. The names of the magistrates, mayors, bailiffs of liberties, 
 constables of hundreds, and sheriff's officers of the different 
 hundreds. 
 
 2nd. The names of the persons summoned to serve on the 
 grand jury. 
 
 3rd. The names of persons summoned to serve on the petty 
 
 4th. The calendar of the prisoners. 
 
 These panels are written on parchment, and should be tied to 
 the precept, and delivered by the sheriff himself to the judge. 
 Copies of the calendar of the prisoners should be printed and 
 circulated. 
 
 If there be any capiases, they must be returned according to 
 the fact at the same time. 
 
 Copies of the nisi prim jury must be printed on parchment, 
 and one copy annexed to each (m) distringas, or habeas corjiora 
 juratorum, returnable at the assizes ; besides this, the under- 
 sheriff should write the name and addition of each juryman on 
 paper, or a piece of parchment or card, and put them into the 
 balloting box, which, with the key of the box, is delivered to 
 the clerk of assize, that he may draw the jury from h{n). 
 
 Copies of the petty jury should be made on parchment, to 
 annex to traverses. 
 
 If there be a view, or special jury, the sheriff strikes the same, 
 and issues his warrant (o) to summon the special jurors, accord- 
 
 (l) See form of return and panels, (m) See form, Append. 
 
 Append. The list of the magistrates (n) See 6 Geo. 4, c. 50, s. 26. 
 
 is obtained from the clerk of the peace: (o) See form of warrant, post, Ap- 
 
 Ihe other lists will be found in the pendix. 
 under-sheriff's office.
 
 392 
 
 SHERIFF S DUTY BEFORK AND AT ASSIZES. 
 
 CHAP. XVII. ing to the provisions of the statute 6 Geo. 4, c. 50, s. '60, 31 ; 
 ^^^^' "' and as to a sheriff's duty on a view, it will be seen in a former 
 part of this work, excepting that the jury and not the parties 
 are to have the view. The sheriff then annexes the special jury 
 panel to the record with issues, and if there has been a view, 
 the sheriff adds this to his return (p). 
 
 The sheriff, as well as his under-sheriff, must be in constant 
 attendance on the judges during the whole of the assizes, and 
 should provide the judges with lodgings, according to the custom 
 of the particular county. The sheriff should also go in state to 
 meet the judges at the accustomed place before they enter the 
 town. This and the other ceremonies vary in different counties; 
 the imder-sheriff will always easily inform himself of what at- 
 tention he should pay to the judges. The under-sheriff has a 
 great many payments to make to the cryers, to the attendants 
 of the judges, to his javelin-men, &c. &c. ; these are also regu- 
 lated by custom. For payments for the lodgings of the judges, 
 and for other payments, as rewards directed by act of parliament 
 to be paid by the sheriff, he should take receipts, and these will 
 be allowed him on passing his accounts (q). 
 
 The fees taken for returning venires, &c., and otherwise in 
 relation to the striking and summoning of juries, are regulated 
 by the table of fees prepared by the judges pursuant to the stat. 
 1 Vict. c. 55 (»•). 
 
 Section III. 
 
 The Sheriff's Duty before and at the Quarter Sessions. 
 
 Of the pre- We next come to notice the sheriff's duty at the sessions, 
 
 mon ihe"ses- The sheriff receives from the clerk of the peace a precept, under 
 
 (p) See form, post, Appendix. 
 
 (q) la case of any person being 
 condemned to deatli and left for exe- 
 cution, the under-sherif}' should at- 
 tend, and should also collect his con- 
 
 stables, bailiffs, and all the disposable 
 civil force he can command, to attend 
 the execution. See Rex v. Antrobus, 
 2 Ad. & E. 788. 
 (r) Ante, p. 107.
 
 SHERIFF S DUTY BEFORE AND AT QUARTER SESSIONS. 393 
 
 the hands and seals of justices of tlie peace, for summoning the chap. xvn. 
 sessions ; by which the sheriff is commanded that he cause to sect, hi. 
 come before the justices, at the time and place which the ses- 
 sions are appointed to be held, " twenty-four good and lawful 
 men of the body of the county, then and there to inquire, pre- 
 sent, do, and perform, all and singular such things, which on the 
 behalf of our sovereign lady the queen shall be enjoined them ; 
 also that he make known to all coroners, keepers of gaols and 
 houses of correction, high constables and bailiffs of liberties, 
 within the county, that they may be then there to do and fulfil 
 those things which, by reason of their offices, shall be to be 
 done ; moreover, that he cause to be proclaimed through the 
 county, in proper places, the aforesaid sessions of the peace to 
 be held at the day and place aforesaid ; and that he should be 
 there to do and execute those things which belong to his office; 
 and that he have then there as well the names of the jurors, 
 coroners, keepers of gaols and houses of correction, high con- 
 stables, and bailiffs aforesaid, as that precept." 
 
 Although the precept requires the sheriff to proclaim the ses- sheriff's 
 sions, yet this is never done by him, but the sessions are pro- ''"'^ ' "*""' 
 claimed by the clerk of the peace, who does it by advertising 
 the day and time in one or more of the provincial newspapers. 
 Neither does the sheriff attend in person at the sessions, but the 
 under-sheriff usually attends. 
 
 A warrant should be made out and delivered to one or more Summoning 
 bailiffs, to summon the grand and petit juries to serve at ses- J""^""' *^' 
 sions; and also to the bailiffs of liberties and constables of hun- 
 dreds to attend the sessions (5). The jurors to serve on the 
 grand or petit jury at sessions must be qualified according to the 
 provisions of the statute G Geo. 4, c. 50 (t). By section 42 of 
 that act, " no man shall be returned to serve upon any grand 
 jury or petit jury at any sessions of the peace to be holden for 
 any county, riding, or division in England or Wales, who has 
 served as a juror at any such session within one year before in 
 Wales, or in the counties of Hereford, Cambridge, Huntingdon 
 or Rutland, or two years before in any other county, and has 
 the certificate of the clerk of the peace of having so served (t<)>" 
 
 (s) See forms, post, Append. (u) By sect. 41, the clerk of the 
 
 (t) See sect. 20. peace is to make out a list of all per-
 
 394 sheriff's duty before and at quarter sessions. 
 
 SECT. 
 
 ciiAi>. xvn. And by section 48 of the same act, " no justice of tlie peace 
 shall be summoned or impannelled to serve as a juror at any 
 sessions of the peace for the jurisdiction of which he is justice." 
 The jurors should be summoned at least ten days before the day 
 on which they have to attend, by serving on each person, either 
 personally or by leaving at his place of abode, a note in writing, 
 under the hand of the sheriff, containing the substance of such 
 summons (x). By section 20 of that act, the courts of session 
 of the peace in England shall have and exercise the same power 
 and authority as they have heretofore had and exercised in issu- 
 ing any writ or precept, or making any award or order, orally 
 or otherwise, for the return of a jury for the trial of any issue 
 before any such courts respectively. 
 
 Sheriff's The sheriff makes his return to the precept by affixing three 
 
 return to . . , 
 
 sessions' pre- pieccs of parchment thereto, m the same manner as the return 
 *^^ * to the precept at the assizes, by writing on the back, " the 
 
 execution of this precept appears in certain panels hereunto 
 annexed." The first panel contains the names of the coroners, 
 bailiffs of liberties and of hundreds, and constables of hundreds. 
 The second is the grand jury panel, and the third the petty 
 jury panel, which contain the names of all the persons sum- 
 moned to serve on those juries (?/). 
 To receive all The under-sheriff, at the sessions, receives all the fines paid 
 
 fines, and to , , . , ... o ^ iL • 
 
 pay the wages there; and he is also to pay the justices ot the peace their 
 us ices. „,aggs^ yi2,j four shillings per diem, and two shillings to the 
 
 clerk of the peace, which the sheriff will be allowed in his 
 
 accounts, 
 Ot levying The sheriff's duty respecting the levying fines and recogni- 
 
 recognizanct? . ,,,,.. _ iii 
 
 estreated at zauccs UTiposed and taken by justices of peace, and by the court 
 
 sessions. 
 
 sons who have been summoned and (y) See forms, post, Append. ; and 
 
 have attended on any grand or petit as to the power in the court to fine 
 
 jury at sessions, with the place of jurors for non-attendance, &c., see 
 
 abode and date of services, within slat. 6 Geo. 4, c. 50, Append. As to 
 
 twenty days after the end of each ses- juries at the quarter sessions in bo- 
 
 sion, and transmit it to the sheriff. roughs and towns corporate, see 5 
 
 And the party himself, on applica- & 6 Will. 4, c. 76, ss. 122, 123; 
 
 tioD, may demand from the clerk of and 2 & 3 Vict. c. 71, s. 4, past, 
 
 the peace a certificate of having served Append. As to the formation of lists 
 
 as a juror at sessions. of jurors in the new county couits, 
 
 (i) 6 Geo. 4, c. 50, s. 25. See see 9 & 10 Vict. c. 95, s. 72, post, 
 
 form of note of summons, post, Ap- Append. 
 pend.
 
 sheriff's duty before and at quarter sessions. 39j 
 
 of quarter sessions, is now regulated by two recent statutes (3 chap. xvii. 
 Geo. 4, c. 46, and 4 Geo. 4, c. 37) ; which statutes have taken ^^' — L 
 away the jurisdiction of the Court of Exchequer, both under 
 Geo. 3 and under the standing writ of privy seal, to mitigate or 
 discharge recognizances forfeited at sessions, although a dupli- 
 cate or certificate thereof has been delivered into that court («). 
 By the statute 3 Geo. 4, c. 46, all fines, issues, amerciaments, 
 forfeited recognizances, &c., set, imposed, lost, or forfeited by 
 or before any justice of the peace, are to be certified by such 
 justice before the next quarter sessions after the fine, &c. is 
 imposed, to the clerk of the peace ; and the clerk of the peace 
 is to copy on a roll such fines, &c., and all fines, issues, amercia- 
 ments, forfeited recognizances, &c. imposed or forfeited at the 
 quarter sessions ; and shall, within the time fixed by the court 
 of quarter sessions (not exceeding twenty-one days) after the 
 adjournment of the court, send a copy of such roll, with a writ 
 of distringas and capias, or Jieri facias and capias (a), to the 
 sheriff of the county (or the person in a borough, &c. having 
 execution of process), which is to be the authority to the sheriff 
 for proceeding to the immediate levying and recovering such 
 fines, issues, amerciaments, forfeited recognizances, &c. on the 
 goods and chattels of such persons, in case sufficient goods and 
 chattels shall not be found whereon distress can he made for the 
 recovery thereof; and every person so taken shall be lodged in 
 the common gaol until the next general or quarter sessions, 
 there to abide the judgment of the court. And all fines, &c., 
 not levied or otherwise discharged, are to be continued upon the 
 subsequent rolls until it has been ascertained, to the satisfaction 
 of the commissioners of the treasury, that the fines, &c. cannot 
 be levied on the person taken ; and it is provided that the sherifl' 
 shall keep and detain the original writs and rolls delivered to 
 him, delivering to the quarter sessions a copy of the roll and 
 also of the old rolls ; and the original writ and roll shall con- 
 tinue in force without any further writ or roll : and the sheriff 
 is, on quitting his office, required to deliver to his successor all 
 the writs and rolls in his possession, particularly the sums paid, 
 
 (s) Rex V. Hankin, 1 M'Clel. & (a) According to the form given in 
 
 Younge, 27, overruling Ex parte Pel- the schedule of the act. See form, 
 low, M'Clel. Rep. 111. jiost, Append.
 
 396 sheriff's duty before and at quarter sessions. 
 
 CHAP. XVII. so that tl>e new sheriff may use every means in his power for 
 
 ' recovering sums unpaid : the officer or officers entrusted with 
 
 the execution of the process in any courts, &c. being first duly 
 and dih'gently examined on oath by the court on the delivery of 
 the roll, or on some subsequent day (6). The clerk of the peace 
 is required (c) to make oath as to the sums due on the roll, such 
 oath to be indorsed on the writ. 
 Sheriff may The sheriff, instead of proceeding; to seize the goods or take 
 
 take bond for , , « . . 
 
 appearance, the body of the person mentioned on the roll whose recognizance 
 is forfeited, may (tZ) discharge such person on his giving security 
 to the sheriff, bailiff, or officer for his appearance at the next 
 general or quarter sessions of the peace, then and there to abide 
 the decision of the court, and also to pay such forfeited recog- 
 nizance, together with all such expenses as sliall be ordered and 
 adjudged by the court. 
 
 Where the Where the person shall reside or shall have fled or removed 
 
 'lefentiant re- ^ . . . ,. . , , . r>r>-i- 
 
 sides out of out ot the jurisdictiOD where the recognizance was forfeited, tne 
 tion. ' sheriff should issue his warrant, together with a copy of the writ, 
 directed to the sheriff, &c. of the county, riding, &c. where that 
 person or his goods may be, and the sheriff to whom the warrant 
 is directed has as full power in executing it in his county, as the 
 sheriff to whom the writ was directed had in his county ; and 
 the sheriff, within thirty days after the receipt of the warrant, 
 must return to the sheriff from whom he received the warrant 
 what he shall have done in the execution of such process, and 
 whether the party shall have given good security to appeal at 
 sessions ; and in case a levy shall have been made, to pay over 
 all monies received in pursuance of the warrant to the sheriff 
 from whom he shall have received the same (e). 
 Return. The sheriff is to make his return on the first day of each ses- 
 
 sion, stating what fines he has levied and what not ; he should 
 make his return on a copy of the writ and roll, and keep the 
 original by him (/). 
 Copy of rolls The clcrk of the peace of each county is required, on or be- 
 vered into the foi'^ the second Monday after the morrow of All Souls in every 
 
 Exchequer. 
 
 (b) 4 Geo. 4, c. 37, s. 1, thai the (d) 3 Geo. 4, c. 46, s. 5. 
 sherifF may be chargeable with all (e) 4 Geo. 4, c. 37, s, 3. 
 
 sums not satisfactorily accounted for (/) 3 Geo. 4, c. 46, s. 8 ; 4 Geo. 
 
 on the final passing of his accounts. 4, c. 37, s. 1. 
 
 (c) 3 Geo. 4, c. 46, s. 3.
 
 sheriff's duty before and at quarter sessions. 397 
 
 year, to make and deliver into the Court of Exchequer a true chap. xvn. 
 and perfect duplicate or certificate of all fines, amerciaments, ^^^^' '"' 
 recognizances and other forfeitures contained in the rolls and 
 copies delivered to the sheriff for the purpose of levying, and 
 which shall have been set, imposed, or forfeited in any of the 
 sessions of the peace, before Michaelmas in each year, to the 
 intent that the sheriffs, on their apposals in the said Court of 
 Exchequer, may be charged in their accounts with the monies 
 levied and received by him or them respectively upon such writs 
 or otherwise, and that all persons entitled to the fines, &c. may 
 be at liberty to claim the same before the foreign apposer, ac- 
 cording to the ancient practice of the court(^). 
 
 And by the 4 Geo. 4, c, 37, s. 4, *' every sheriff shall and he 
 is thereby required to make up, or cause to be made up, 
 annually and immediately after the expiration of the year for 
 which he shall act (or after the usual period for making up his 
 account, in case he shall act under any grant for a longer 
 period than one year), an account in writing containing the 
 names and residences of all persons incurring fines, issues, 
 amerciaments, forfeited recognizances, sum or sums of money 
 paid or to be paid in lieu or satisfaction of them or any of them, 
 which he has been authorized or required to levy by virtue of 
 any writ or writs issued to him or to any predecessor in office ; 
 and in case any fine, issue, amerciament, forfeited recognizance, 
 sum or sums of money paid or to be paid in lieu or satisfaction 
 of them or any of them, shall not have been levied or paid, the 
 causes of non-payment shall be fully and particularly stated ; 
 and such account such sheriff is thereby required to transmit 
 within thirty days from the expiration of the year for which 
 such account ought to be made up to the commissioners of his 
 majesty's treasury or any three or more of them, in order that 
 such account may be duly examined, checked and inspected 
 under the direction of the said commissioners or any three of 
 them." When the quarter sessions make an order for the 
 discharge of any recognizance, or any person taken thereon from 
 
 {g) 3 Geo. 4, c. 46, s. 14; and of quarter sessions, a copy of the rolls 
 
 by 4 Geo. 4, c. 37, s. 5, clerks of delivered to the sheriff, and of the 
 
 the peace are to send to the treasury, sheriff's return thereto. See arile, p. 
 
 within twenty days from the opening 376.
 
 398 sheriff's duty before and at quarter sessions. 
 
 CHAP. XVII. prison, that order will be a discharge as to the sheriff in the 
 SECT. III. p3ggi„g of his accounts (/Q. 
 
 Any sheriff, bailiff, or officer, for refusing or neglecting to 
 perform his duty a8 to levying any fine, is subject to a forfeiture 
 of 50/., to be recovered by a common informer by action (i). 
 
 (h) 3 Geo. 4, c. 46, s. 6. of Lancaster; nor does it affect bodies 
 
 (0 3 Geo.* 4', c. 46, s. 10. This politic, or the rights of the city of 
 
 act does not affect the rights of the London. 
 
 crown in respect of the duchy or county
 
 ( 399 ) 
 
 CHAPTER XVIII. 
 
 OF THE sheriff's COURTS, AND PROCEEDINGS THEREIN. 
 
 Sect. l.—The Sheriff's Tome. 
 II. — The County Court. 
 
 III. — Of the Sheriff's Duty and Liabilities in granting 
 Replevins. 
 
 Section I. 
 
 Of the Sheriff's Tome. 
 
 When this kingdom was divided into counties, the sheriff had 
 the power committed to him of holding courts both of criminal 
 and civil jurisdiction ; these courts were, 1st, The sheriff's 
 torne, into which all the county, to wit, every man of a certain 
 age, should come, there to hear the articles or things given in 
 charge, so that they might not be ignorant of the laws whereby 
 they were to be governed, and where also they were sworn to 
 their allegiance to the king. In this court the sheriff was to 
 inquire of criminal matters, and to reform common nuisances, &c., 
 throughout the whole shire. 2d, The county, or shire court, 
 wherein the sheriff held and still holds plea of causes of action, 
 hereafter specified, under 40a\, and grants replevin of goods or 
 cattle distrained (rt). Likewise by writ of justicies the sheriff 
 may hold plea in his county court to any amount. The busi- 
 ness of this court was, however, much lessened by the establish- 
 ment of hundred courts ; but they were again, by the statutes of 
 2 Edw. 3, c. 12 ; 14 Edvv. 3, c. 9, rejoined to the county court. 
 
 The sheriff's torne, in ancient times, had jurisdiction (and junsdiction 
 therein the sheriff might inquire and hold plea) of all criminal "^ "'^ '*"^"*' 
 offences whatsoever, as well treasons as felonies and misdemean- 
 ours ; he might there inquire of wayfes, estrays, the king's 
 
 (a) Dalt. 184.
 
 400 OF THE sheriff's courts, and proceedings therein. 
 
 cHAP.xvni. franchises, and of all encroachments thereon. 'J'he sheriff's 
 ^^^^''' tome was a court of record, and therefore the sheriff miglit fine 
 and imprison all those who were guilty of offences punishable 
 therein, or who should have failed to do suit there (6). But the 
 power of the sheriff in his tome, and the importance of the 
 court, received their death blow by Magna Charta, c. 17, by 
 which it is ordained that " no sheriff, constable, escheator, 
 coroner or other bailiff of the king shall hold pleas of the 
 crown." Ever since, the sheriff's power to hold plea in any 
 criminal offence has ceased ; but indictments and inquests were 
 still found in the tome, and process granted thereon ; and this 
 was found to be so great a source of oppression and extortion, 
 that to obviate this evil, by the statute 1 Edw. 4 it was or- 
 dained "that upon all presentments and indictments which shall 
 be taken before any sheriffs in their counties (except in London), 
 their under-sheriff or officers in their tome or law days, they 
 shall have no power to make or grant out any process against 
 any person so indicted ; nor to attach, arrest, or put in prison ; 
 nor to assess, levy or take any fines or amerciaments of any person 
 so indicted or presented before them by reason or colour of any 
 such indictment or presentment; nor to take of any person so 
 indicted or presented any fine or ransom ; but that the said she- 
 riff, &c., shall bring and deliver all such indictments and pre- 
 sentments taken before them in their tornes to the justices of 
 the peace at their next sessions of the peace that shall be holden 
 in the county where such indictments or presentments shall be 
 taken, upon pain that every sheriff, under-sheriff, &c., failing to 
 deliver or present any such indictments to the justices of the 
 peace at such sessions of the peace shall forfeit 40^." "And if 
 any sheriff, under-sheriff, &c., do arrest, attach or put in prison, 
 or cause any fine or ransom to be taken, or levy any amercia- 
 ment of any person or persons so indicted or presented, by 
 reason or colour of any such indictment or presentment taken 
 before them at their tornes or law days, before that they have 
 process from the justices of the peace, or estreats delivered out 
 of the said indictments or presentments so brought, delivered 
 and presented to them, that then the sheriffs that so do shall 
 
 (h) As to the power which the sheriff had in his tome, see Dalton's Sheriff, 
 cap. 106.
 
 OF THE SHERIFF S TORNE, 
 
 401 
 
 forfeit 100/.;" and if the sheriff levy an amerciament imposed chap. xvm. 
 
 at the torne before it has been certified and enrolled at sessions, ^''"'' '' 
 
 and process therefrom, he is a trespasser (c). So that even at 
 
 this day an indictment might be found at the torne, but the 
 
 sheriff has no power to grant process thereon (rf). The sheriff's 
 
 torne, however, has for centuries back fallen completely into 
 
 disuse ; indeed its existence and power are now merely matters 
 
 of history. The reasons of the disuse of the torne assigned by 
 
 Dalton are fivefold — 1st, that all matters inquired at the leet 
 
 are now inquired of before the judges of gaol delivery and at 
 
 quarter sessions ; 2d, by the increase of leets the suitors at 
 
 the torne have been diminished ; 3d, the travelling from all 
 
 parts of the county to attend the torne, and therefore they 
 
 rather attend the leet ; 4th, the trouble and expense to the 
 
 sheriff in keeping the torne twice in every year (e) ; 5th, that 
 
 the profits, emoluments and advantages arising to the sheriff 
 
 from the torne are now taken away (/). 
 
 (c) Griffith V. Biddle, Cro. Car. 
 275; Sir W.Jones, 301, S. C. 
 
 (d) Formeily it would appear that 
 the sheriff made inquiries, and found 
 indictments of felony by commission ; 
 but this power is taken away by the 
 Stat, 28 Edw. 1, c. 9. 
 
 (e) By magna charta, the sheriff 
 should hold his toine in the accus- 
 tomed place ; and by the slat. 3 1 Edw. 
 3, the sheriff should hold his torne 
 within a month of Easter and Michael- 
 mas; if taken at any other time, all 
 proceedings were coram non judice ; 
 and the sheriff was to lose the profits 
 thereof; Dalt. 390. 
 
 (■/) Dalton (page 403) complains 
 "for the trouble and charge of the 
 sheriffs in keeping this their court, as 
 also for the profits thereof, which be 
 now taken away from them, perhaps 
 some sheriffs may regard more their 
 private gain than the common good 
 and weal of the country, (which also 
 is now grown to be the common cause 
 almost in all other men, as well 
 ofliicers as others.) But yet it cannot 
 
 be denied, that of rewar-d and pu- 
 nishment (as one saith) all common- 
 wealths do consist, and that the care 
 of equity and justice waxelh cold, un- 
 less there be reward ready for virtue. 
 And therefore though all sheriffs be, 
 or ought to be, men of the best suffi- 
 ciency in their county, and such as 
 need no reward for their care, dili- 
 gence, travel, and charges in that be- 
 half, yet oftentimes (now of late 
 years) the charge and burthen thereof 
 lielh upon men of no great estate ; 
 yea, upon such as find it over burthen- 
 some to them in regard of the charge. 
 And besides, be they of the best and 
 ablest sort, yet they must of necessity 
 employ under them inferior officers 
 and ministers, to aid their under-she- 
 riffs and others, who with more 
 cheerfulness and care (yea with more 
 honesty and conscience) would, in 
 all likelihood, proceed in their affairs, 
 when they shall find due recompence 
 or reward yielded them for their travel 
 and pains."
 
 40S 
 
 OF THE SHERIFF S COURTS AND PROCEEDINGS THEREIN. 
 
 CHAP, xviir. 
 SECT. II. 
 
 Ancient 
 jiuisdicliim 
 i.f llie 
 couiily 
 couil. 
 
 Of its juris 
 diction in 
 general. 
 
 Section II. 
 Of the County Courl{g). 
 
 'i he civil court, which is or may be held in every county, is 
 called the sheriff's or county court. In the time of the Saxons 
 nearly all suits were viscontiel, and determined in the county 
 court (A); and it would also appear that the bishop and sheriff 
 sat jointly in the county court, and had jurisdiction of all causes, 
 both secular and ecclesiastic ; but the power of the bishop and 
 the holding of ecclesiastical pleas in the county court were done 
 away at the Norman Conquest («). 
 
 This court is not a court of record, and holds plea either hy 
 plaint (loqucla) or hy writ ofjusticies, which is a commission out 
 of chancery, empowering the sheriff to hold plea in a particular 
 cause. There are divers personal actions suable in the county 
 court, which shall be noticed hereafter in this section ; there are 
 also two proceedings which are peculiar to the county court ; 
 viz. proceedings in outlawry, which have been already no- 
 ticed (j), and suits in replevin, which will be treated hereinafter 
 in the next section (k). 
 
 (g) By the statute 9 & 10 Vict. c. 
 95 (which has since been canied into 
 effect throughout the country), her 
 majesty was empowered to divide the 
 counties, &ic., of England and Wales 
 into districts, and to order that the 
 "County Court" should be holden 
 for the recovery of debts and demands 
 (not exceeding 20/.) under that act in 
 each of such districts ; the courts so 
 holden to have all the jurisdiction and 
 powers of the County Couit for the 
 recovery of debts and demands 
 thioughout each district, and to be 
 courts of record; and the lord chan- 
 cellor is empowered to appoint a 
 judge for each district, whose jurisdic- 
 tion and duties are defined by the act. 
 The judge so appointed is also to ap- 
 point a clerk or clerks of the court, a 
 high bailiff to execute its process, &:c. 
 But it is expressly enacted by the 4th 
 section, that for all purposes, except 
 those which shall be within the juris- 
 diction of the courts holden under that 
 act, the County Court shall be holden 
 as if that act had not been passed ; 
 and that all proceedings commenced 
 
 in the County Court of any county, 
 before the time when any court shall 
 be holden under that act in such 
 county, luay be continued, executed, 
 and enforced against all persons liable 
 thereunto, in the same manner as if 
 they had been commenced under the 
 authority of that act. By section 72, 
 the sheriff of every county is directed 
 to cause to be delivered to the clerk of 
 the court established under that act, a 
 list of persons qualified and liable to 
 serve as jurors in the courts of assize 
 and nisi prius for his county, within 
 fourteen days from the receipt of the 
 jury book froiri the clerk of the peace 
 (seeoJi^e, p. 386), containing the names 
 of persons within the jurisdiction of 
 the court, for which list the sheriff is 
 to receive out of the general fund of 
 the court a fee after the rale of two- 
 pence for every folio of seventy-two 
 words. 
 
 (/() Selden,412; Greenwood, 3. 
 
 (i) Id. ibid. 
 
 (i) Ante, p. 215. 
 
 (k) Posi, p. 413.
 
 OF THE COUNTY COURT. 403 
 
 By the 9 Hen. 3, c. 35, and 2 Edvv. 0, c. 25, it is ordained, ciiap.xviii. 
 that the holding of the county court shall be no longer deferred ^ ^^'^' "• 
 but one month from court to court, and the court is to be kept At what time 
 every month on a day certain, and not otherwise ; and by 27 
 Hen. 8, c. 26, in Wales, (and in Chester, by 33 Hen. 8, c. 13,) 
 the sheriffs shall keep their courts monthly, which months are 
 lunar and not calendar months (l). And by the 7 & 8 Will. 3, 
 c. 25, s. 9, it is enacted, " that the county courts held for the 
 county of York, or any other county courts which theretofore 
 used to be held on a Monday, shall be called and begun on a 
 Wednesday, and not otherwise." 
 
 At the common law, and still, with a few exceptions intro- At wimt 
 duced by statute, the shcriflP may keep or hold his court at any 
 place within his county that he pleases. By the stat 2 Edw. C, 
 c. 25, the sheriff of Northumberland is to hold the county court 
 of that shire in the town or castle of Alnwick, and none other 
 place. The sheriff" of Sussex is to hold his county court alter- 
 nately at Chichester and at Lewes (m). The sheriff" of Chester 
 is to hold his county court in the shire hall of the said county (n). 
 In the counties of Wales, by stat. 27 Hen. 8, c. 26, the county 
 courts are to be held as follows : — of Brecknockshire, at Breck- 
 nock; of Radnor, at New Radnor and Presteign ; of MontgO' 
 mery, at Montgomery and Machynlleth; of Denbigh, at Wrex- 
 ham ; of Monmouth, at Monmouth and Newport, alternis vlcibus. 
 
 In the county court, whether in suit by plaint or by justicies. Of the judge 
 the sheriff" is not a judge, but only iTiinister, although the court 
 is called the sheriff^'s court ; but the freeholders of the county 
 are judges there in all suits (o). In outlawries, the coroners are 
 only judges there to give judgment upon the writs of exigent, 
 that if the defendant do not come in on the fifth proclamation, 
 then the coroners give judgment that he be out of the queen's 
 protection (p). Although the suitors be judges in the county 
 court, the judgments and writs, and all other acts in that court, 
 are in the name of the sheriff'. And if the sheriff" give judg- 
 ment, or do any act in the county court, without the assent of the 
 freeholders or suitors, an action on the case may be maintained 
 
 (/) 2 Inst. 71 ; Greenwood, 4. Judges, 15; id. Justicies, 6 ; Dalt. 
 
 (m) 19 Hen. 7, c. 24; Dyer, 135, 409; Jones v. Jones, 5 M. & \V. 
 
 pi. 14. 523. 
 
 («) 33 Hen. 8, c. 13. (p) Dalt. 406. 
 (o) 4 Rep. 32; 6 Rep. 11 ; Bro. 
 
 D D 2
 
 404 OF THE sheriff's courts and proceedings therein. 
 
 cHAP.xvm. against the slierifF; but a writ of false judgment does not lie (q). 
 ^^^^' "• The sheriff cannot appoint a deputy for the purpose of holding 
 the county court (r) ; that is to say, that if the proceedings be 
 alleged to have been before a deputy, the proceedings are void. 
 Therefore, on a justicies, he cannot direct his warrant to the bai- 
 liff of a liberty to be executed (*). But the sheriff always appoints 
 a person to preside in the county court, generally his under- 
 sheriff; and if the proceedings be alleged to be before the she- 
 riff, although they were held before the under-sheriff, it is 
 good (t). 
 
 Conncy clerk. Besides deputing some person to hold and preside in the 
 county court, the sheriff appoints a clerk of the county court, 
 who is styled the county clerk ; it is, however, optional in the 
 sheriff whether or not he will appoint such officer, and the ap- 
 pointment is entirely in the sheriff. In Mitton's case(«), it was 
 resolved that a grant by Queen Elizabeth of the office of county 
 clerk, during the vacancy of the office of sheriff, was void ; for 
 the appointment belongs and is incident to the office of sheriff. 
 The appointment of the county clerk is made by entry or minute 
 on the proceedings of the county court (x). 
 
 Atiornies. Plaintiffs and defendants may sue or defend suits brought 
 
 by or against them in the county court by attorney (y). By 
 G & 7 Vict, c. 73, s. 2, no person can act as an attorney or soli- 
 citor in any county court unless he is duly qualified to act as an 
 attorney or solicitor, and has been duly admitted ; and by sec- 
 tion 36 of that act it is enacted, " that in case any person shall 
 commence or defend any action, or sue out any writ, process, or 
 summons, or carry on any proceedings in the court commonly 
 called the county court, holden in any county in that part of 
 Great Britain called England and Wales, who is not or shall not 
 then be legally admitted an attorney or solicitor according to 
 this act, or shall not himself be plaintiff or defendant in such 
 
 ((/) Fitz. Bill, 12 ; Dalt. 405,407. qualities (all of which seldom concur 
 
 (r) 2 Leon. 34, 210; Com. Dig. in one mortal): Provideat sihi vice- 
 
 County (C) 2 ; Bio. Officer, 13; De- comes de clerico circumspecto etjideli, 
 
 puly, 29. virit provide el discreto, gruiioso, hu- 
 
 (s) Bio. Justicies, 2; Filz. Bar. miti, pudico,paclficoel modesto,qui in 
 
 161. legibus consuetudinibusque provincicE 
 
 (l) 21 lien. 6, 24. el officio comit. cleriri se cogiioscat, et 
 
 (it) 4 Rep. 33. As to the appoint- jura in oninihus tenere ojjeclet, quique 
 
 nienl of replevin clerks, see post, next suhbalivos i>i suis errovibus et umbiguis 
 
 section, and ante, p. 29. sciat inslruere el dncere, S)C, 
 
 (x) It is said that the county clerk (y) West. 2, c. 10; 6 Kdvv. 1, 
 
 should be imbued with the following c. 8 ; 20 Hen. 3, c. 10.
 
 OF THE COUNTY COURT. 
 
 405 
 
 proceeding respectively, such person shall and is hereby made chap. xviu. 
 
 11 • . • , ^- -i. • i. SECT. II. 
 
 incapable to maintain or prosecute any action or suit in any court 
 
 of law or equity for any fee, reward, or disbursement on account 
 of prosecuting, carrying on, or defending any such action, suit, 
 or proceeding, or otherwise in relation thereto ; and such offence 
 shall be deemed a contempt of the court in which such action, 
 suit, or proceeding shall have been prosecuted, carried on, or 
 defended, and shall and may be punished accordingly." In 
 an action by an attorney for his charges for suits carried on by 
 him in the county court, he must deliver his bill one month 
 before action commenced, according to the provisions of the 
 37th section of the same statute. 
 
 The officers of the county courts for the execution of their Bailiffs, 
 processes are styled bailiffs ; these must be some persons recom- 
 mended for their steadiness and good character. These bailiffs 
 are always bound to the sheriff with sureties for the strict per- 
 formance of their duties (z). 
 
 The county court has jurisdiction to hold plea hy plaint in debt. What pleas 
 detinue, or other personal actions (not being vi ct armis) under the iu ihe county 
 value of 40s. (a). So, if the debt were originally above 40^., and '^pMnt.^ 
 if the plaintiff acknowledge by his declaration that the debt has 
 been reduced below 405., he may sue in the county court (6); 
 but it has been ruled that he cannot falsely acknowledge satis- 
 faction of part, to reduce the debt under iOs. (c). But the 
 county court has no jurisdiction by 'plaint in any personal action 
 where the debt or damage amounts to 405. or upwards. If the 
 debt exceed 405., the plaintiff cannot sue in the county court by 
 plainly even by dividing his demand into several sums below 40s. 
 each {d) ; but if he has two debts, separate and distinct, each 
 under 40s., he may bring two actions in the county court (e) ; 
 and it must appear affirmatively by the declaration that the 
 cause of action is under 40s., otherwise the proceedings would 
 be entirely erroneous (/). Where, therefore, the declaration 
 stated that the defendant was indebted to the plaintiff in \l. ds. 6d. 
 for goods sold and delivered, aiid in ]/. 9s. Ct^. upon an account 
 
 (s) See slat. 7 & 8 Vict. c. 19, as (c) Palm. 564; Com. Dig. County 
 
 to the piotection of bailiffs of inferior (C) 8. 
 
 courts from actions. (d) Id, ibid.; 2 Inst. 312. See , 
 
 (a) 2 Inst. 312; 4 Inst. 266; 6 Grimbly t^.Aykroyd.l Exch.Rep.479. 
 
 Edw. 1, c. 8 ; Dalt. c. 110. (e) Rex v. Sheriff of Herefordshire, 
 
 (&) See form of such admission, 1 B. & Adol. 672. 
 
 post, Append. (/) Id. ibid.; 2 Mod. 206.
 
 40(i or THE siikiuff's courts and proceedings therein. 
 
 cnAi'. xviii. stated, it was held that, a demand of more than 405. appearing 
 ^^^T' "' upon tlie face of the declaration, the county court had no juris- 
 diction, and that the particulars of demand, which really claimed 
 less than 40^., could not be looked at to aid the defect (g). This 
 court cannot hold plea in the action of account, though the de- 
 mand be vmder 405., for the sheriff cannot assign auditors who 
 are judges of record (/j). Nor can the county court hold plea 
 in any action of trespass vi ct omits ; the reason whereof is, that 
 a fine is due to the king in such action, and the county court, 
 not being a court of record, cannot impose or assess a fine(i). 
 Mayhem, deceit, or maintenance, or the forging of a false deed, 
 cannot be sued in the county court (k). Nor can the county 
 court hold plea by plaint of debt upon a record or specialty, nor 
 of plea concerning freehold (I), nor in detinue of charters con- 
 cerning freehold or inheritance (m) ; and although the county 
 court may have jurisdiction in a cause, yet if a question of free- 
 hold be pleaded, the court is ousted of its jurisdiction; as if a 
 man in a plaint in replevin justifies, avows, or makes cognizance 
 as in the freehold of B., the jurisdiction of the county court is 
 gone (n). 
 
 Jiiri-diction In the county court, pleas are also holden by the queen's writ 
 out of chancery, called a jii.sticies or viscontiel writ, by which 
 the sheriflT is commanded and empowered to hold plea in the 
 particular case. This writ is not returnable. If the sheriff do 
 not proceed thereon, an alias and pluries may issue : if he cannot 
 show cause for not executing those writs, an attachment will be 
 granted against him (o). By justicies the county court may 
 hold plea in assumpsit, debt, detinue, and other personal actions 
 (excepting in trespass vi et armis), to any amount (p). In ac- 
 tions for torts, although the damages be laid to any amount, the 
 county court may hold plea by justicies, but not when the cause 
 of action is laid to be vi el annis (q) ; and although freehold 
 
 (g) Dempster v. Purnell, 3 Man. (<>) Dalt. 421 ; Fitz. N. B. 125e. 
 
 & G. 375 ; 1 Dowl. N. S. 172, S. C. (/') Com. Dig. County (C) 5. 
 
 (h) 2 Inst. 380; Com. Dig. County (</) Dalt. 423 ; Fitz. N. B. 85, 86, 
 
 (C) 8. 87 ; Reg. Biev. 92. But see 2 Inst. 
 
 (0 2 Inst. 311:4 Inst. 266. 312; Com. Dig. County (C) 5, con- 
 
 (k) Com. Dig. County (C) 8. tni ; but llie leason given above wliy 
 
 (/) C'om. Dig. County (S) 8; but the county court cannot hold plea in 
 
 it is otlierwise of d(5bt on record in tlic trespass li et armis, viz. because, not 
 
 same court, Dalt. 412. being a court of record, the court can- 
 
 (m) Fitz. Nat. Brev. 138; 2 Inst. not impose a fine, is equally applica- 
 
 311. ble to proceedings by justicies. 
 
 (n) 3 Lev. 196, 203.
 
 OF THE COUNTY COURT. 
 
 407 
 
 come in question, the county court may hold plea by justicics (r). ciiap.xviii. 
 So in annuity (s), or in debt for tithes (t), plea may be holden in _!i!±ilL_ 
 the county court by justicies ; also in divers real actions the 
 county court may hold plea by justicies, as in dower tmdc nihil 
 hahet, in admeasurement of pasture, in a quod permittat, nui- 
 sance, &c., in rationahile divisis, curid claudendd, in sccta ad 
 violcndinum, in right patent or right of ward, in nalivo hahendo, 
 or in plegiis acquietandis («). 
 
 The county court, whether in suit by plaint or justicies, has only The cause ot 
 
 -' ' •' ' •111 action iiiiist 
 
 iurisdiction in cases where the defendant resides, and the cause have arisen 
 
 .... . . , . , . wilhin the ju- 
 
 of action arises, withm its jurisdiction, viz. within the precincts risfiiciiou. 
 of the county. The rule in the superior courts, which supposes 
 debts and contracts to be of a transitory nature, and to have 
 arisen wherever the venue is laid, does not apply to suits in in- 
 ferior courts ; for in such courts it must be distinctly alleged 
 and proved, that not only the promise, but the cause of action 
 itself, arose within the jurisdiction of the court {x). If the cause 
 of action, however, arose within the jurisdiction of the county 
 court, any matter merely in aggravation of damages is triable 
 there, although arising out of the jurisdiction (?/). 
 
 A capias does not lie in the county court, either in pro- Process. 
 ceedings by plaint or by justicies (z). The process is by sum- 
 mons, attachment, and distress infinite ; or by attachment and 
 distress infinite, as in actions of trespass on the case (a). Those 
 writs run in the name of the sheriff, directed to his bailiffs (6). 
 The summons may issue two or three days before the court 
 day ; the practice respecting the issuing of summonses varies in 
 different counties (c). The under-sheriff should, on his entrance 
 into office, set a sufficient number of county court summonses 
 printed, and keep a regular account witli the bailiffs respecting 
 the number used. If the defendant do not appear upon the 
 summons, thereupon an attachment issues, by virtue of which 
 
 (r) 14 Hen. 8, 15 b; Bro. Juris- (b) 3 Lev. 203; Lutw. 1413. 
 diction, 98 ; Finch, 320. (c) In a pamphlet published on 
 (s) 4 Inst. 266. the practice of the Yorksliire County 
 (0 1 Lev. 253. Court, it is stated that in that court 
 (u) Dalt. 421 — 423 ; Com. Dig. it had been a practice to serve sum- 
 County (C) 5. monses before they were issued, and 
 (i) 1 Saund. 74 a, note (1). frequently before the plaint had been 
 (y) Peacock D. Bell, 1 Saund. 74 a, entered; in consequence of so many 
 n.(l); see also Dunn v. Crump, 3 abuses arising therefrom, a rule had 
 Brod. & Bing. 309. been made not to issue any summons, 
 (s) Com. Dig. County (C) 9. or enter a plaint, after Monday pre- 
 (a) Id. ibid. vious to the court day.
 
 408 OF THE sheriff's COURTS AND PROCEEDINGS THEREIN. 
 
 CUM'. XVIII. tlie bailiff sliould seize and detain, but not sell, some chattel of 
 _!l!l!li!l_ moderate value, that is to say, of the value of 40s., to compel 
 an appearance ; or it is sufficient to warn the defendant to 
 appear, if it is returned that he has been warned (c/). If the 
 defendant do not appear on the attachment, a distringas issues, 
 whereon the bailiff should take and detain goods of the defend- 
 ant of the value of 405. until the defendant appear. Goods 
 taken on the attachment or distringas are forfeited, if the de- 
 fendant do not appear at the next county court (<?). 
 Dcciaraiiou. The plaint must be entered in writing sedente curid, and is 
 the first proceeding in tlie suit. When the defendant appears, 
 the plaintiff files his declaration, giving a rule to plead, accord- 
 ing to the practice of the court, which is generally eight days. 
 The declaration is the same as in the courts above, with this 
 addition, that every material fact must be laid to have arisen 
 within the jurisdiction ; but matter merely in aggravation of 
 damages need not be laid to have arisen within the jurisdic- 
 tion (/). In a writ of false judgment, where the declaration 
 alleged that the defendant was indebted to the plaintiff for work 
 and labour in curing horses, &c. within the jurisdiction, and for 
 potions administered on those occasions, it was held that the 
 whole cause of action was sufficiently alleged to have arisen 
 within the jurisdiction (^). So where the declaration stated 
 that the defendant was indebted to the plaintiff within the juris- 
 diction, &c., for the wages of and due and owing to the plaintiff 
 within the jurisdiction, &c., as the servant of the defendant, it 
 was conceded that the jurisdiction was sufficiently laid (A). 
 
 The defendant can only plead one plea to a declaration in the 
 county court, for the statute 4 & 5 Ann. c. 16, which allows 
 defendants to plead several pleas, is confined to courts of record; 
 and if the defendant pleads two distinct pleas, the plaintiff may 
 reply to the first and take no notice of the other (i). In case of 
 a plea of freehold, in a suit by plaint, the suit cannot proceed 
 further; it is, however, otherwise in a suit by justicies in the 
 county court (/c). Upon a plea in the nature of a demurrer to 
 
 (<0 Com. Dig. County (C) 9. (1i) Chitty v. Lusford, 3 Ad. & E. 
 
 (e) Com. Dig. Process (D; 6, 7. 319. 
 
 (/) See note (1), 1 Saund 74 a. (i) See Chilly v. Dendy, 3 Ad. & 
 
 Ig) Dunn V. Crump, 3 Brod. & E. 319. 
 
 Bing. 309. {k) Dro. Jurisd. 98.
 
 OF THE COUNTY COURT. 
 
 409 
 
 the iurisdiction, the county court, in giving judgment for the chai'.xviii. 
 
 • SECT* II 
 
 defendant, cannot award liim costs (/). '— 
 
 In a suit in the county court by justicies, the trial is by jury ; Trial, 
 also in a suit by plaint, the trial there by prescription may be 
 by jury; otherwise, in suits by plaint in the county court, the 
 trial is by wager of law, or by examination of witnesses {m). 
 
 The execution in the county court is by distress, to compel Execution. 
 the defendant to satisfy the judgment (n); although the officer 
 may seize the defendant's goods, yet, without a custom, he can- 
 not sell, but must detain them (o). Execution on a judgment 
 in the county court, by custom, may be by levari facias against 
 the goods and chattels, but not against the lands (p). A capias 
 ad satisfaciendum cannot issue on the judgment in the county 
 court (9); but by the statute 34 Hen. 8, c. 26, the sheriffs of Wales 
 are enabled, upon every judgment had befoi'e them in their 
 counties or hundred courts, in every plaint under iOs., to award 
 a capias ad satisfaciendum against the body, or a fieri facias, at 
 the plaintiff's choice. If the sheriff delay execution, a writ de 
 executione judicii may be directed to him out of chancery, to do 
 execution ; and thereupon, if execution be not done, an alias 
 and pluries, and attachment, may go against the sheriff(r). 
 
 Causes in the county court may be removed into the superior Tiie different 
 
 . „ J • /■ • ; 7 writs for 
 
 courts by writ of jwjie, or writ 01 recordan Jacias loquelam, removing 
 before judgment; or after judgment, by a writ of false judg- thrcoum™ 
 ment ; and also, if the court hold plea where it has not jurisdic- *^°'""'' 
 tion, the superior courts will grant prohibition. 
 
 The writ of po7ie only lies where the suit is in the county Writ of potie. 
 court by original writ out of Chancery, as replevin by writ, or 
 in a suit by justicies (s) : this writ is an original writ issuing out 
 of chancery, commanding the sheriff to pw^ before the queen, 
 on a general return day, wheresoever, &c., the proceedings in 
 the suit, and the sheriff is also to summon the plaintiff or 
 defendant, as the case may be, &c., to be in the court above 
 on the return day, so that the parties may proceed in the plea. 
 
 (0 SeeDerapslerr. Purnell,3Man. (0) Id. ibid. 
 
 & G. 372; 1 Dowl. & L. 172, S. C. (p) ^om. Dig. County (C) 10. 
 
 (m) Com. Dig. County (C) 11. (</) Dalt. 419; Com. Dig. County 
 
 See form of De» he in the county court, (C) 13. 
 
 post, Append. ('") Id. ibid. 
 
 (n) Com. Dig. County (C) 13; (s) Fitz. N. B. 69; Gilb. Repl. 
 
 Dalt. 419. 102.
 
 410 OF THE sheriff's COURTS AND PROCEEDINGS THEREIN. 
 
 SECT. 
 
 ciiAi'.xviir. The slieriff makes his return to tliis writ, that he haa put, &c., 
 and annexes a schedule containing a copy of the proceedings to 
 his return (<) ; and if, after the cause be removed, the parties 
 proceed in the court below, an attachment shall go against the 
 sheriff for contempt (m). The cause assigned at the end of the 
 writ of pone for removing the plaint is mere form, and is not 
 traversable (x). 
 
 Re. fa. to. 'j'j^g ^j.jj jjf fccordari facias loquelam is also an original writ 
 
 issuing out of chancery, and lies for the removal of causes 
 before judgment in the county court by plaint without writ. 
 This writ may be obtained either by the plaintiff or the defend- 
 ant as a matter of course. It is only calculated for the removal 
 of actions of replevin from the county court, for it is beneath 
 the dignity of a superior court to proceed in other actions where 
 the damages are under 405., and therefore in such case, if the 
 cause were removed, the court would award a procedeiido. By 
 the writ of re. fa. lo. the sheriff is commanded that in his full 
 county he cause to be recorded the plaint which is in the same 
 court without the queen's writ ; and that he have the record 
 in the court above on a general return day, under his seal and 
 the seals of four lawful knights of his county, who were present 
 at that recording ; and that he prefix the same day to the parties 
 that they be then there to proceed in the action (?/). The sheriff 
 should also direct his warrant to two or more bailiffs to summon 
 the plaintiff or defendant (2). The sheriff makes his return to 
 this writ according to the terms of it, and annexes all the pro- 
 ceedings in a schedule to his return {a). The re. fa. lo. will 
 remove the plaint, although it may have been discontinued, or 
 although the re. fa. lo. may have issued before the plaint was 
 entered {h). The sheriff should make a positive and not an 
 argumentative return to the re. fa. lo.; he should either return 
 the plaint, or that no plaint is pending, and it is bad to return 
 the plaint and all subsequent proceedings, leaving it for the 
 court to judge if tliere is a plaint pending or not(c). 
 
 (0 See leturD, iwit, vVppend. 105; see also Grimsliaw i'. Emerson, 
 
 But the original minute of the pro- 1 Dovvl. 337. 
 ceeding is not removed. Per Holroyd, (v) Fitz. Nat. Brev. 70. 
 
 J., Dyson v. Wood, 3 Bar. & Cress. (z) See form, /«is(, Append. 
 
 453. (a) See return, post, Append. 
 
 (m) Greenwood, 58. (6) Greenwood, 57, 58. 
 
 (.r) Parkes v. Renton, 3 B. & Ad. (c) Wright v. Lewis, 8 Dowl. 514.
 
 OF THE COUNTY COURT. 
 
 411 
 
 The writ of accedas ad curiam lies for the removal of plaints chap.xviii. 
 out of the court of the lord ; it is a writ issuing out of Chan- _!!fIl.!lL 
 cerv, directed to the sheriflf of the county, commanding him Accedasad 
 
 . , „ , . curiam. 
 
 that, taking with him four discreet and lawful knights ot his 
 county, he go in his proper person to the court of the lord, and 
 in that full court he cause to be recorded the plaint, and that he 
 have that record in the court above, on a general return day, 
 under his seal and the seals of four lawful men who were pre- 
 sent at that recording, and to prefix the same day to the parties 
 aforesaid, that they be then there to proceed, &c., and that the 
 sheriff should have the writ with the names of the suitors on 
 the return day (d). This writ is executed by directing a precept 
 to the steward and suitors of the court, ordering them to return 
 the plaint to the sheriff, and to prefix a day to the parties to 
 appear, and thereupon the sheriff returns the accedas ad curiam, 
 with a return in compliance with the terms of the writ, with the 
 plaint annexed in a schedule thereto (c). The persons who are 
 alleged to have gone with him need not in fact be knights, it is 
 sufficient if they be stated to be so(/). It is a good return for 
 the sheriff to state that after the receipt of the writ, and before 
 the return thereof, no court was holden, and that he also re- 
 quired the lord to hold his court, which he refused to do (g). 
 It seems to be a good return for the sheriff, that the suitors 
 refused to record the plea(/?), or denied that there was any 
 such plea(i), or that the suitors would not deliver him the 
 record {j). In such cases the court above would award a writ 
 of distringas, directed to the sheriff, against the suitors, with a 
 summons against the party (^). 
 
 The writ of false judgment is a writ issuing out of Chancery, Writ of false 
 directed to the sheriff for the removal of a suit after judgment, J" ^'"^"'' 
 out of the county or other inferior court, not of record. The 
 writ of false judgment is exactly the same as the writ of recor- 
 dari facias loquelam, excepting that it alleges that the defendant 
 complains that false judgment hath been given against him in 
 
 (d) Greenwood, 61. The writ al- court will grant a distringas to compel 
 ways alleges some special cause ; the lord to iiold his court ; Id. ibid. 
 but this is mere surmise, and never (h) Fitz. Faux Judgment, 6, 8,21 ; 
 inquired into at this day. Process, 167 ; Dyer, 262 ; Dalt. 243. 
 
 (e) See return, ?;ost. Append. (i) Fitz. Faux Judgment, 13 ; Fitz. 
 (/) Fitz Nat. Brev. 10. Nat. Brev. 16; Dalt. 243. 
 
 (g) Greenwood, 63; Dalt. 201, (j) Fitz. Process, 128 ; Dalt. 243. 
 
 243 ; Fitz, Retorn, 21 ; thereupon the {k) Dalt. 243, 244,
 
 412 
 
 OV THE sheriff's COURTS AND PROCEEDINGS THEREIN. 
 
 CllAf. XVIII. 
 SECT. II. 
 
 Bill of excep- 
 tions. 
 
 Prohibition. 
 
 Actions 
 against the 
 sheriff, &c. in 
 respect of 
 process issu- 
 ing out of the 
 county court. 
 
 the said county court. To the writ of false judgment the sheritf 
 makes this return, and summons the parties in the same manner 
 as on a re. fa. lo. To the writ of false judgment it is not neces- 
 sary to return the original minute of the proceedings, but 
 merely a statement of the proceedings, for it is not necessary to 
 the validity of the proceedings in a suit in the county court 
 that any memorandum thereof should be made(^), although 
 regular entries of all the proceedings there should be kept ; and 
 if on a return to a writ of false judgment the sheriff merely 
 returns minutes of the proceedings, the court will compel him 
 to complete the entries of those proceedings, and to certify the 
 practice of the court (w). If the proceedings be erroneous, as 
 if the cause of action be not laid to have arisen within the juris- 
 diction of the court, or the like, the court above will reverse 
 the judgment (n). 
 
 A bill of exceptions will lie to the direction of the judge of 
 a county court (o). 
 
 Also if a suit is brought in the county court over which it 
 has not jurisdiction, the superior courts will grant a prohibition 
 to the inferior court from proceeding further in the suit(7)). 
 
 It is said, that if the sheriff pronounce judgment, or do any 
 other act without the assent of the suitors, an action on the case 
 lies against him {q). But if the bailiff, to whom the process of 
 the county court is directed to distrain on the goods of A., 
 seize the goods of B., an action of trespass cannot be maintained 
 by B. against the sheriff; for the sheriff is a constituent and 
 essential part of the county court, although the suitors are 
 judges : the bailiff, and not the sheriff, is the minister of the 
 court for the execution of its process, consequently the bailiff is 
 solely responsible for any trespass committed in the execution 
 of such process (r). No action will lie, therefore, against the 
 
 (/) Dyson v. Wood, 5 Dowl. & 
 Ry, 295 ; 3 Bar. & Cress. 449, S. C. 
 
 (m) Overton v. Swettenham, 5 
 Dowl. 641. 
 
 (n) See Bishop v. Kaye, 3 Bar. & 
 Aid. 610; Dempster v. Purnell, 3 
 Man. & G. 375 ; 1 Dowl. N. S. 172, 
 S. C. 
 
 (o) Strotheri). Hutchinson, 4 Bing. 
 N.C. 83. 
 
 (p) Dalt. 426. 
 
 (q) Dalt. 405, 407. 
 (r) Holroyd v. Bieare, 2 Bar. & 
 Aid. 473 ; see also Carratt v. Morley, 
 
 1 Q. B. 18 ; Bradley v. Carr, 3 Man. 
 & G. 221 ; Tunno v. Morris, 2 C. M. 
 & R. 298 ; Tinsley v. Nassau, Moo. 
 & M. 52 ; Brown v. Copley, 13 Law 
 J., N. S., C. P. 164; Cresswell, J., 
 
 2 Dowl. & L. 332, S. C. Quaere, as 
 to the law, supposing the sheriff re- 
 ceived the poundage on such writ 1
 
 OF THE COUNTY COURT. 
 
 413 
 
 sheriff for a false return to an execution out of the county ciiAP.xvin. 
 
 SECT. II. 
 
 court (5). 
 
 See a tahle of fees generally charged for proceedings in the Fees. 
 county court in the appendix to this chapter. 
 
 Section III. 
 Replevi7i. 
 Replevin lies for the unlawful takms o( any soods and chat- in what cases 
 
 ., ••ii/\i/'i replevin lies. 
 
 tels, whether living animals or inanimate chattels {t), and tor the 
 young of cattle born after the distress taken (m) ; but for fix- 
 tures, or things affixed to the freehold, replevin is not grant- 
 able (a;). Replevin does not lie for chattels relating to the 
 inheritance, for they are not esteemed personal chattels in \aw(y). 
 As the landlord is empowered to distrain sheaves or cocks of 
 corn, or loose corn (2) lying upon any part of the demised pre- 
 mises, or corn growing on the demised premises (a), where corn 
 is distrained, replevin will lie. It lies at common law in all 
 cases where goods are improperly taken, or taken under a pre- 
 tended authority (b) ; thus it lies for goods taken under a dis- 
 tress warrant of justices, issued on an order which on the face 
 of it shows that they had no authority to make it(c). It lies 
 also for goods distrained for a poor rate (d). 
 
 It has been held that replevin does not lie for goods taken in 
 execution (e), nor for goods distrained under a conviction for 
 deer-stealing (/), nor for goods seized for duties due to the 
 crown (^O- And formerly it was held that in general, where 
 goods were taken by virtue of a statute, by which distress and 
 
 (s) Pitchers. King, 9 A. &E. 288. tin, 3 Man. & G. 581. 
 
 (t) Com. Dig. Replevin (A); and (d) Sabourin v. JNIarshall, 3 B, & 
 
 seeDorei;.Wi!kinson,2Slark.N. P.C. Adol. 440; Selby i>. Bardons, 3 B. & 
 
 288 ; Wilk. Replevin, 2. 3, Adol. 2. 
 
 (jt) Gilb, Replevin, 170. (e) Com. Dig. Replevin (D); but 
 
 (x) Bac.Abr. Replevin (F); Ros- replevin lies for goods taken by virtue 
 
 coe, 621; see Niblett v. Smith, 4 of an execution issuing out of an infe- 
 
 T. R. 504. rior court ; Gilb. Replevin, 167. 
 
 (y) Gilb. Replevin, 170. (/) Rex D.Monkhouse.Stra, 1184 ; 
 
 (z) 2 Will. & M. c. 5, s. 3. and for so doing, the court granted an 
 
 (a) 11 Geo. 2, c. 19, s. 8. attachment against the sheriff. And 
 
 (b) George D. Chambers, 11 M. & see Wilson v. Weller, 1 Brod. & 
 W. 149 ; 2 Dowl. N. S. 783, S. C. Bing. 57. 
 
 (r) Ibid.; see also Morrell v. Mar- (g) Rex v. Oliver, Bunb. 14.
 
 414 
 
 OF THE SHERIFFS COURTS AND PROCEEDINGS THEREIN. 
 
 CHAP. XVIII, 
 
 SECT. in. 
 
 By vvhoin. 
 
 Against 
 ■whom. 
 
 Of llie diffe- 
 rent kinds of 
 replevin. 
 
 sale was given, inasmuch as this was considered in the nature of 
 an execution, replevin did not lie (/<), unless the statute by im- 
 plication empowered the party whose goods were seized to 
 replevy them (i). But the Court of Common Pleas refused to 
 set aside proceedings in an action of replevin brought for goods 
 taken on a distress for an assessment under the Highway Act, 
 13 Geo. 3, c. 78, s. 47 (k) ; indeed, it seems that the court will 
 not enter into the question whether replevin lies or not, on a 
 motion to set aside proceedings (/). Replevin, however, does not 
 lie where goods are simply detained by a party to whom they 
 have been delivered upon a contract, as where they are unjustly 
 detained by a carrier (jn) ; but only where they are unlawfully 
 taken. But replevin lies for a wrongful detention of goods 
 taken under a lawful distress, for sucli detention amounts to a 
 new taking (n). 
 
 A person, in order to obtain replevin, must have either an 
 absolute or a special property in the goods distrained (o). If 
 the goods of a feme sole are distrained, and she afterwards mai'- 
 ries, her husband alone may bring replevin, or the two may 
 join (p). Executors may have replevin for a taking in the life- 
 time of their testator (^). 
 
 The action of replevin may be brought against the bailiff who 
 makes, or against the landlord who authorizes the distress, or 
 against both. 
 
 The proceeding in the action of replevin at the common law 
 was by original writ, issuing out of Chancery, by which the 
 sheriff was commanded to grant replevin of the goods distrained, 
 and to determine the matter in his county court (r). The mode 
 of proceeding in replevin by plaint was introduced by the Sta- 
 
 (h) Bradshaw's case, Bac. Abr. 
 Replevin (C); 1 Barnard, B. R. 110; 
 Wilson i;. Waller, 1 Biod.& Bing.63; 
 Willes, 672, note (6) ; but see Anon., 
 T. Jones, 25 ; Hutchins v. Chambers, 
 1 Burr. 588. 
 
 (i) Fletcher v. Williams, 6 East, 
 287. As in a distress for poor rates, 
 under 43 Eliz. c. 2, where the party 
 " making avowry" is allowed to plead, 
 &c., Milward v. Coffin, 2 Bla. Rep. 
 1330 ; Hurrell v. Wink, 8 Taunt. 
 369. 
 
 {k) Fenton v. Boyce, 2 N. R. 392. 
 
 (I) Pritchard v, Stephens, 6 T. R. 
 522. 
 
 (m) Galloway v. Bird, 12 Rloore, 
 547; 4 Bing. 299. S. C. 
 
 («) Evans v. Elliolt, 5 Ad. & E 
 142; 6Nev. & Man. 606, S. C. 
 
 (o) Co. Lilt. 145 b. 
 
 (p) Burn V. Maltaire, Cas. Temp. 
 Hard. 120 ; Blackburn v. Greaves, 2 
 Lev. 107 ; Milner v. Milner, 3 T. R. 
 627 ; and see Serres v. Dodds, 2N.R. 
 405. 
 
 (g) Arundell v. Turvil, 1 Sid. 82 ; 
 Bull. N. P. 53. 
 
 (r) 2 Inst. 240.
 
 REPLEVIN. 415 
 
 tute of Marlbridge, c. 21, by wliich the sheriff was authorized chap.xviii. 
 to deliver the goods and to hold the plea in replevin by plaint, ^^^^' '"' 
 as he might at common law, on a writ of replevin (*). The 
 action of replevin by writ has long been obsolete. And by the 
 recent statute, 9 & 10 Vict. c. 95, s. 119, it is declared and en- 
 acted, that all actions of replevin, in cases of distress for rent in 
 arrear or damage faisant, which shall be brought in the county 
 court, shall be brought without writ in a court held under that 
 act. Sect. 120 enacts, that in every such action of replevin, the 
 plaint shall be entered in the court holden under that act for the 
 district wherein the distress was taken. And by sect. 121 it is 
 enacted, that in case either party to any such action of replevin 
 shall declare to the court in which such action shall be brought, 
 that the title to any corporeal or incorporeal hereditament, or to 
 any toll, market, fair, or franchise is in question, or that the rent 
 or damage in respect of which the distress shall have been taken 
 is more than the sum of twenty pounds, and shall become bound 
 with two sufficient sureties, to be approved by the clerk of the 
 court, in such sums as to the judge shall seem reasonable, regard 
 being had to the nature of the claim, and the alleged value or 
 amount of the property in dispute, or of the rent or damage, to 
 prosecute the suit with effect and without delay, and to prove be- 
 fore the court by which such suit shall be tried, that such title as 
 aforesaid is in dispute between the parties, or that there was 
 ground for believing that the said rent or damage was more 
 than twenty pounds, then and not otherwise the action may be 
 removed before any court competent to try the same, in such 
 manner as hath been accustomed. Sect. 127 enacts, that every 
 bond given on the removal of any action out of the county court 
 shall be made to the other party to the action, at the costs of such 
 other party, and shall be approved by the judge, and attested 
 under the seal of the court ; and if the bond so taken be for- 
 feited, or if, upon the proceeding for securing which such bond 
 was given, the judge before whom such proceeding shall be had 
 shall not certify upon the record in court that the condition of 
 the bond hath been fulfilled, the party to whom the bond shall 
 have been so made may bring an action of debt, and recover there- 
 
 (s) 2 Inst. 240; Wilson «;. Hobday, it has been construed to extend to all 
 4M.&Sel. 128. The word " beasts" goods and chattels j Wilk. Replevin, 8. 
 only is mentioned in this statute, but
 
 416 OF THE sheriff's courts and proceedings therein. 
 
 cHAP.xvm. on : provided always, that the court in which sucli action as last 
 ^^'^^' "'• aforesaid shall be brought, may by a rule of court give such relief 
 to the parties liable upon such bond as may be agreeable to justice 
 and reason, and such rule shall have the nature and effect of a 
 defeasance to such bond. 
 Replevin We have already seen, that by the statute 1 & 2 Philip & Mary, 
 
 c. 12, s. 3, the sheriff, at his first county day, or within two 
 months after he has received his patent, is required to appoint 
 at least four clerks for granting replevins in his county. The 
 mode of appointing, and the liability of, such replevin clerks have 
 already been pointed out in a former part of this work (<). 
 
 The 9 &- 10 Vict. c. 95, has not pointed out any fresh mode of 
 proceeding for obtaining replevin, in the cases to which the above- 
 mentioned provisions of that statute apply ; it is conceived, there- 
 fore, that all the proceedings antecedent to the entering of the 
 plaint must still be according to the former practice, which there- 
 fore we proceed to state. 
 Replevin, If a person whose goods are distrained, having found the 
 
 ...wgran e . j.gqyjgjjg sureties, make application to the sheriff' or his deputies, 
 a precept will be granted, in the name of the sheriff", to two or 
 more bailiffs, to replevy the goods taken, and to summon the de- 
 fendant to appear at the next county court (w). Strictly speaking, 
 the plaint should be levied in the county court before the goods 
 are replevied (x) ; but the precept may be granted, and the goods 
 delivered thereon, between one county court and another, and 
 the plaint entered at the next court (?/). In one case the Court 
 of King's Bench refused to grant a motion to compel the sheriff* 
 to enter a plaint in replevin (2). Where the lord of the fran- 
 chise has the prescriptive right to grant replevins in the same 
 manner as the sheriff" had before the Statute of Marlbridge, the 
 sheriff" has not a concurrent jurisdiction with him (a). 
 PMees in By the Statute of Westm. 2, (13 Edw. 1, c. 2), the sheriff" is 
 
 repi'^vin. required, before he makes his deliverance of the distress, to 
 take from the plaintiff" the usual pledges to prosecute, and also 
 
 (0 AiUe, p. 29. In Trevanion's (t) Seal v. Pliilips, 3 Price, 18; 
 
 case, II Wod. 32, the court granted Wilk. Replevin, 9. 
 
 an information against an attorney for (y) 2 Inst 139 ; Co. Litt. 145 b. 
 
 granting a replevin in his own cause (s) Ex parte Boyle, 2 I)owl.& Ry. 
 
 without any deputation. 13 
 
 (It) See form of precept, and sum- (a) Mounsey v. Dawson, 6 Ad. & 
 
 mons thereon, Append. E. 752; 1 N. & P. 763, S. C.
 
 REPLEVIN. 
 
 417 
 
 to make a return of the beasts, if a return be awarded : other- chap. xvm. 
 wise he shall answer for the price of the beasts, and he who ^^^'^- '"• 
 distrains shall have his recovery by writ, that the sheriff shall 
 render to him so many cattle or goods ; and if the bailiff have 
 not wherewith he may render, his superiors shall answer. 
 Under this statute, the sheriff may take a bond, either from the 
 plaintiff himself (6), or from one (c) or more pledges {d), con- 
 ditioned to prosecute the suit with effect, and to make a return, 
 if a return should be adjudged ; but the sheriff cannot take 
 money in lieu of pledges, in granting replevin (e). It is usual 
 to insert in the replevin bond a condition to save the sheriff 
 harmless, and it has been determined that a bond with such 
 condition is not therefore void (/). Bonds taken under this 
 statute are not assignable (^). 
 
 In granting replevins in cases of distress for rent, the sheriff's or the taking 
 
 I . ,. I'll- 111 1 3'"' •''fi 3S- 
 
 duty m takmg replevni bonds is regulated by the statute signing of a 
 
 II Geo. 2, c. 19, s. 23, which has been holden to extend to a nnde^'the n 
 replevin granted of a distress for a rent-charge (/*). By that ^"^ 2. c. 9. 
 statute it is enacted, " that all sheriffs and other officers having 
 
 any authority to grant replevin (i) may and shall, in every re- 
 plevin of a distress for rent, take, in their own names, from the 
 plaintiff and two responsible persons as sureties, a bond in the 
 double value of the goods distrained (k), (such value to be ascer- 
 tained by the oath of one or more credible witness or wit- 
 nesses (/) not interested in the goods or distress, which oath the 
 person granting such replevin is thereby authorized and re- 
 quired to administer), and conditioned for prosecuting the suit 
 with effect and without delay, and for duly returning the goods 
 and chattels distrained, in case a return shall be awarded, before 
 any deliverance be made of the distress ; and that such sheriff 
 
 (6) Blackett v. Ciissop, 1 Lord (i) A replevin bond may be taken 
 
 Raym. 278. and assigned by any officer who has 
 
 (c) In a replevin for a distress da- power to grant replevins ; and it has 
 mage feasant, it is sufficient if the she- been held that one of the sheriffs of 
 riff take one pledge; Hucker v. Gor- London has such power without his 
 don, 1 C. & M. 58. companion ; 'J'hompsoa v. Farden, 1 
 
 (d) Moyseri;. Gray, Cro. Car. 446. Man. & G. 585. 
 
 (e) Id. ibid. (/c) Semble, if the bond be taken in 
 (/) Short u. Hubbard, 2 Bing. 357; a greater amount, the court would, if 
 
 Blackett v. Crissop, 1 Lord Raym. speedy application were made, set it 
 
 278 ; see also JVIiers v. Lockwood, 9 aside ; Wiers v. Lockwood, 9 Dowl. 
 
 Dowl. 975. 975. 
 
 (g) VVilk. Replevin, 12. (/) See Middleton v. Bryan, 3 M. 
 
 {h) Short V. Hubbard, 2 Bing. 349. & Sel. 157.
 
 418 OF THE sheriff's COURTS AND PROCEEDINGS THEREIN. 
 
 CHAP. XVIII. or Other officer as aforesaid taking any such bond shall, at the 
 SECT. Ill, ygqyggt; and costs of the avowant, or person making conuzance, 
 assign such bond to the avowant or person aforesaid, by indors- 
 ing the same, and attesting it under his hand and seal, in the 
 presence of two or more credible witnesses ; which may be done 
 without any stamp, provided the assignment so indorsed be 
 duly stamped before any action brought thereupon (m) ; and if 
 the bond so taken and assigned be forfeited, the avowant or 
 person making conuzance may bring an action and recover 
 thereupon in his own name ; and the court where such action 
 shall be brought may, by a rule of the same court, give such 
 relief to the parties upon such bond as may be agreeable to 
 justice and reason ; and such rule shall have the nature and 
 effect of a defeasance to such hox\d(n)." 
 
 The sheriff", under this statute, takes a bond either from the 
 plaintiff' and two responsible persons, or from the latter alone ; 
 and where the bond had been executed by one of the sureties 
 only, it was held that the sheriff' was entitled to sue upon such 
 bond (o). The bond must, by the statute, be in double the 
 value of the goods distrained (p), and conditioned for prose- 
 cuting the suit with effect and without delay (q), with all due 
 diligence (»•), and for duly returning the goods and chattels dis- 
 trained, in case a return shall be awarded. A bond conditioned 
 for appearance at the next county court, for prosecuting the 
 plaint with effect, making a return if adjudged, and indemnifying 
 the sheriff from all charges and damages by reason of the replevin, 
 is authorized by the statute (5) ; but a condition that the party 
 shall appear at the next county court, and then and there prose- 
 cute his suit with effect, is not warranted by the statute (^) ; for 
 it is sufficient if the party at the next court begins to prosecute 
 his suit. If a surety in the replevin bond is a material witness 
 in the cause, the court will grant a rule for substituting another 
 
 (m) A stamp is no longer required (q) This means that the suit is to 
 
 on the bond or assignment : 5 Geo. 4, be prosecuted to a not unsuccessful 
 
 c. 41. termination ; Jackson v. Hanson, 8 M. 
 
 («) See form of replevin bonds and & VV. 477 ; 1 Dowl. N. S. 69, S. C. ; 
 
 assignment, Append. Perreau v. Beavan, 5 B. & C. 284 ; 
 
 (0) Austin V. Haward, 2 Marsh. Harrison v. VVardle, 5 B. & Ad. 146; 
 
 352 ; 7 Taunt. 28, 327, S. C. 2 N. ik M. 703, S. C. 
 
 (p) But it ought not to be in a (r) Id. ibid. 
 
 greater amount ; see Miers v. Lock- (5) Short v. Hubbard, 2 Bing. 349. 
 
 wood, 9 Dowl. 975. (t) Jackson v. Hanson, siqna.
 
 REPLEVIN. 
 
 419 
 
 surety in his place, upon giving the defendant's attorney notice chap.xvui. 
 
 /» 1 1 / \ SECT. iir. 
 
 or such rule(M). . 
 
 The mode in which deliverance is made of goods distrained is 
 by the sheriff's precept above noticed. If the cattle were taken 
 and impounded within a liberty, the sheriff should issue his 
 warrant to the bailiff of the liberty to make deliverance (a;); and 
 if he make no answer nor replevy the cattle, the sheriff, by the 
 statute of Marlbridge, 52 Hen. 3, c. 21, and statute Westm. 2, 
 c. 17, may enter the franchise and grant replevin (y) ; but the 
 sheriff has no concurrent jurisdiction with the lord of a fran- 
 chise, who has a prescriptive right to grant replevins, in the 
 same manner as the sheriff had before the statute of Marl- 
 bridge (z). 
 
 By the statute of Westminster 1, c. 17, the sheriff, after de- 
 mand made, may break open the house of the person who has 
 made the distress, in order to deliver the cattle or goods dis- 
 trained. The officer may also raise the j^osse comitatus, if ne- 
 cessary, to make deliverance of goods distrained («). If the 
 goods cannot be taken on the first precept, the sheriff should 
 issue another precept in nature of an alias, and then a phiries ; 
 and if the cattle, by inquest of office, are found to be eloigned, 
 a precept issues, in the nature of a writ of withernam, to take 
 other cattle in lieu of those eloigned (h). The goods or cattle 
 taken in withernam cannot be replevied until the original distress 
 is forthcoming ; if the cattle are withheld, the plaintiff may 
 nevertheless proceed in the cause, and recover damages to the 
 full value of the cattle, as well as for the detention (e). 
 
 If a defendant claim property in the goods distrained, the Wiitrfe 
 sheriff cannot proceed to replevy them ; for he is not authorized probanda. 
 to determine questions of property in his court, without the 
 queen's writ {d). In case of a claim of property by the defend- 
 ant, the proceeding to obtain deliverance is by writ de projyrietate 
 probandd, by which the sheriff is commanded to inquire by a 
 jury to whom the property belongs j the sheriff thereupon is to 
 
 00 Bailey v. Bailey, 1 Bing. 92 ; (a) Dalt. 435 ; 2 Inst. 193. 
 
 7 Moore, 439, S. C. (b) Gilb. Repl. 98—108 ; Bac. 
 
 (x) See Mounsey v. Dawson, 6 A. Abr. Replevin (E. 7). 
 
 & E. 752 ; 1 N. &"P. 763, S. C. (c) Wilk. Replev. 20. 
 
 (t/) 2Tnst. 140,194. (d) Co. LiU. 145, 146; Leonard 
 
 (z) Mounsey i;. Dawson, 6 A. & E. v. Stacy, 6 Mod. 140 ; Wilk. Repl. 
 
 752 ; 1 N. & P. 763, S. C. 16, 17. See ante, 406, 415. 
 
 E E 2
 
 420 
 
 OF THE SHERIFF S COURTS AND IMIOCEEDINGS THEREIN. 
 
 cnAr.xviii. hold an iiKjuest of office. If the property be foiintl in the plain- 
 '- — '— tiff, the sheriff is then to make dehverance ; if in the defendant, 
 
 the proceedings are at an end(e). The sheriff should give 
 notice to the parties of the time and place appointed for holding 
 the inquest (/). 
 Proceedings The proceedings in the county court in the action of replevin 
 
 in the county j. o ./ i 
 
 court. are the same as in any other suit by plaint ; the process, pro- 
 
 perly speaking, is by attachment to compel an appearance, but 
 in practice it is generally a summons (jO-). If the defendant 
 pleads any plea by which the freehold may come in question, 
 the jurisdiction of the county court is at an end {h) ; the defend- 
 ant, also, can plead only one plea in the action of replevin in 
 the county court (i). A replevin suit may be removed from the 
 county court by the same process, and in the same manner, as 
 before pointed out respecting the removal of suits in general 
 from the county court (^). 
 Ofihe re- The execution in the action of replevin at the common law 
 
 bJ^o, and (and Still, where the avowant cannot or does not proceed 
 dnV'Srexe- ""^er the 17 Car. 2, or 7 Hen. 8, c. 4, or 21 Hen. 8, c. 19) is 
 cuiing it, jjy ^,.jj. Qf retorno hahendo, by which writ the sheriff is com- 
 manded that he make a return of the goods to the defendant. 
 Under this writ he should take from the plaintiff the goods that 
 were replevied ; this is seldom, if ever, done. To this writ the 
 sheriff generally returns elongata, that the goods were eloigned 
 and removed to places unknown (^). Upon this return being 
 filed, the defendant may have a capias in witliernam, by which 
 writ the sheriff is commanded to take in withernam the cattle, 
 goods and chattels of the plaintiff, to the value of the cattle, 
 goods and chattels before taken, to be delivered to the defend- 
 ant ; to be kept by him till the sheriff can cause to be returned 
 the cattle, goods and chattels before taken ; and to put, by 
 gages and safe pledges, the plaintiff to answer, as well for his 
 contempt as to the defendant, for the damages and injury to 
 him done(j?j). The writ of retorno habendo has been generally 
 sued out for the purpose of founding proceedings on the bail- 
 
 (e) Co. Lilt. 145 b. It is there said and following sections of that act; 
 
 that the claim of properly must be and ante, 415. 
 
 made by tlie defendant in person, and {h) See ante, 406, 415. 
 
 not by bailiff', (j) See ante, 408. 
 
 (/) Dalt, 274. (k) See ante, 409. 415. 
 
 (g) V\ilk. Repl. 20. As to the (/) See form. Append, 
 
 proceedings in the courts established (w) VViik. Kepi. 110. 
 under 9 & 10 Vict, c.95, see the 59th
 
 REPLEVIlSr. 
 
 421 
 
 bond, or against the sheriff; but this is unnecessary, for as the chap.xviii. 
 
 1 • , 1 • T • 1 1 • • I ^ SECT. III. 
 
 replevin-bond is conditioned to prosecute the suit with ettect, 
 
 and also to make a return, if return be awarded, the bond is for- 
 feited by the plaintiff not prosecuting his suit with success (n). 
 
 Formerly, when the sheriff returned to the writ de retorno Prooeedinga 
 
 •' against llie 
 
 habendo that the goods were eloigned, the defendant thereupon sheriff, 
 sued out a scire facias against the pledges to show cause why 
 their cattle and goods, to the value of the cattle and goods 
 eloigned, should not be delivered to the defendant ; and if no 
 cause was shown, a writ issued to take their cattle (o). If the 
 sheriff returned nihil upon that writ, a scire facias was awarded 
 against the sheriff that he should render to the defendant as 
 many cattle (p). But now these proceedings have fallen en- 
 tirely into disuse ; and if the defendant in replevin obtain judg- 
 ment, but is not able to obtain satisfaction either against the 
 principal or against the sureties, an action on the case may be 
 maintained against the sheriff for taking insufficient pledges ((/) ; 
 or if the sheriff has lost the replevin-bond, an action may be 
 maintained against the sheriff for thereby depriving the defend- 
 ant of his remedy against the sureties (/•). But the courts will 
 not grant an attachment against the sheriff, even where he has 
 neglected to take a replevin- bond (.«). The person who would 
 be entitled to the assignment of the replevin-bond is the proper 
 person to bring the action against the slieriff for taking insuffi- 
 cient pledges (<). And although the defendant in replevin had 
 elected to proceed under the statute 17 Car. 2, c. 7, it was held 
 that he might still proceed against the sheriff («t). And although 
 the defendant in replevin had never issued a writ of rctorn. ha- 
 hend., this action for losing the bond lies against the sheriff (a:) ; 
 for the replevin-bond is forfeited by the plaintiff in replevin not 
 prosecuting his suit with eflfect, and consequently in default of 
 the sureties an action lies against the sheriff (?/). This action 
 
 (n) Perreau v. Bevan, 5 Bar. & (r) Perreau v. Bevan, 5 Bar. & 
 
 Cress. 584 ; see ante, 418, n. {q). Cress. 284. 
 
 (o) 1 Saund. 195 a, n.; Dorington (s) Rex v. Lewis, 2 T. R. 617; 
 
 V. Edwin, 3 Mod. 56. Yea v. Lelhbridge, 4 T. R. 435 ; 
 
 (;j) 1 Saund. 195 a, n.; Nevors i'. Tessyman y. Gilbert, 1 N. R. 292. 
 
 Michelbourne, Hutt. 77. (t) Page v. Earner, 1 Bos. & Pul. 
 
 (9) Moyser v. Clarke, Cro. Car. 378. 
 
 456; 16 Vin. Abr. 399; 1 Saund. (u) Perreau v. Bevan, 5 Bar. & 
 
 195 a, n. It seems that ihe sheriff Cress. 284. 
 
 may recover ag.iinst his replevin clerk (i) See Hucker v. Gordon, 1 C & 
 
 for taking insufficient sureties ; see M. 58. 
 
 Bowden v. Hall, 1 Dav. ic M. 54. {y) Id. ibid.
 
 422 OF THE sheriff's COURTS AND PROCEEDINGS THEREIN. 
 
 CHAP. XVIII. may be maintained after the defendant in replevin has taken an 
 ^''"' '"• assignment of the replevin-bond, and sued both principal and 
 sureties thereon ; for the sheriff is not discharged by the de- 
 fendant in replevin proceeding on the bond (2). In support of 
 an action for taking insufficient pledges in replevin, it must 
 appear that the pledges were insufficient at the time they exe- 
 cuted the bond. If the pledges were apparently responsible, 
 and the sheriff did not omit any means in his power to ascertain 
 to the contrary, this action cannot be maintained against the 
 sheriff (a). The sheriff is not bound to go out of the office to 
 make inquiries respecting the sufficiency of the sureties ; but he 
 ought to have reasonable grounds for believing them to be suf- 
 ficient, and whether in accepting them he exercises a reasonable 
 discretion, is a question for the jury (6). 
 
 Ih^t'extent ^^ ^^ '^^^ cxtcut of the liability of the sheriff for taking in- 
 
 liabie. sufficient pledges in replevin, there were formerly conflicting 
 
 decisions (c). But it seems to be now settled, that the sheriff 
 is not liable beyond the extent to which the sureties themselves 
 would have been liable, viz., to the extent of the penalty of 
 the bond (d). In the case of Scott v. Waithman, Abbott, 
 C.J. (e), is reported to have said, " as the verdict in the replevin 
 suit vvas merely for a return of the goods, the jury could not in 
 their verdict exceed the value of the goods." Nor can the 
 assignee of a replevin bond recover from the sheriff, as special 
 damage, the costs of suing the sureties without effect, unless 
 he gave notice to the sheriff of his intention to sue them, pre- 
 vious to his doing so(f). 
 
 Writ of ill- In cases of distress for 7-ent, by the 2nd section of the statute 
 
 qniry iiiidcr ^ . . . 
 
 Slat. 17 Cur. 17 Car. 2, c. 7, it is enacted, that whensoever any plamtiff m 
 
 2 c. 7. 
 
 replevin in any suit in the courts at Westminster, shall be non- 
 suited before issue joined, the defendant making a suggestion 
 
 (z) 1 Snund. 195, n. 433; Concanon v. Lethbridge, 2 H. 
 
 (a) Hindlei). Blades, 5 Taunt. 225; Bl. 36. 
 
 SuUon V. VVaite, 8 Muore, 27 ; Scott (d) Jeffeiy v. Bastard, 4 A. & E. 
 
 V. Waithman, 3 Stark. N. P. C. 170; 823; Paul «. Goodluck, 2 Bing. N.C. 
 
 Jeffery v. Bastard, 4 A. & E. 823. 220; Evans v. Branden, 2 H. Bl. 
 
 Tlie sureties themselves are competent 547; Perreau v. Bevan, 5 Bar. & 
 
 witnesses to prove their sufficiency or Cress. 290; Ilofford u. Alger, 1 Taunt, 
 
 insufficiency; 5 Taunt. 225 ; 2 Phil. 218. 
 Evid. 274. (e) Scott v. Waithman, 3 Stark. 
 
 (b) Jellery v. Bastard, 4 A. & E. N. P. C. 171. 
 
 823. (/) Baker v. Garratt, 10 Moore, 
 
 (c) See Yea v. Lethbridge, 4 T. 11. 324 ; 3 Bing. 56, S. C.
 
 REPLEVIN. 423 
 
 in the nature of an avowry or cognizance for rent, to ascertain chap.xvih. 
 
 • SECT III 
 
 the court of the cause of such distress, tlie court, upon his — '- — '. — -L 
 prayer, shall award a writ to the sheriff of the county, to inquire 
 by oath of twelve good and lawful men of his bailiwick, touch- 
 ing the sum in arrear at the time of such distress taken, and the 
 value of the goods or cattle distrained. Fifteen days' notice of 
 such inquiry is to be given to the plaintiff or to his attorney, and 
 the sheriff is to inquire of the truth of the matters in the writ, 
 by the oaths of twelve good and lawful men ; and on the return 
 of the writ, the court is to give judgment for the defendant for 
 the arrears of rent, if the value of the cattle amounts thereto; 
 if not, to the value of the cattle, and full costs : and by section 3 
 of the same statute, in case of judgment upon demurrer for the 
 defendant, the court at his prayer may award a writ to inquire 
 the value of such distress. These writs are to be executed in 
 the same manner as other writs of inquiry {g), forms of the 
 inquisition and return thereto will be found in the Appendix to 
 this work(/«). 
 
 {g) See ante, p. 323. (fe) Append, c. 18, s. 3.
 
 ( 424 ) 
 
 CHAPTER XIX. 
 
 OF THE sheriff's DUTY IN THE ELECTION OF MEMBERS OF 
 PARLIAMENT. 
 
 Sect. I. — Of the Writ for the Election of Members. — Procla- 
 mation. — Polling Districts. — Erection of Poll-Booths, 
 — Poll-Clerks, ^c. — Time and manner of Election. 
 
 II. — Election by View. — Poll, how taken. — Inquiry to he 
 made of Voters. — Poll, how closed. — Scrutiny. — She- 
 riff's Return. 
 
 III. — Liabilities of Sheriff for Misbehaviour. — Action by 
 Sheriff for Exjienses. 
 
 Section I. 
 
 Of the Writ for the Election of Members. — Proclamation. — Poll- 
 ing Districts. — Erection of Poll-Booths. — Poll-Clerks, Sj'c. — 
 Time and manner of Election. 
 We have seen that it is one of the duties of the office of sheriff 
 to decide the elections of knights of the shire (subject to the 
 control of the House of Commons) ; and to return such as he 
 shall determine to be elected (a). 
 Of tiie writ. The writ to the sheriff for the election of members of parlia- 
 ment commands him that (proclamation being made of the day 
 and place aforesaid) two knights, of the most fit and discreet of 
 
 the said county, girt with swords, and of the borough of 
 
 two burgesses {b), of the most sufficient and discreet, freely and 
 indifferently, by those who at his county court to be holden for 
 the purpose of the election shall be present, according to the 
 form of the statutes, &c., he cause to be elected ; and the names 
 of those knights, &c., so to be elected (whether they be present 
 
 (a) Ante, p. 3. circumstances. See 2 Will. 4, c. 45, 
 
 (6) MMtutis mutajiciis, according to s. 77.
 
 sheriff's duty in election of members of parliament. 425 
 
 or absent), he cause to be inserted in certain indentures, to be phap. xix. 
 
 S£CT !• 
 
 thereupon made between liim and those who shall be present at ! 
 
 such election : *' willing, nevertheless, that neither he nor any- 
 other sheriff of this kingdom be in anywise elected, and that 
 the election in his full county so made, distinctly and openly, 
 under his seal, and the seals of those who shall be present at 
 such election, he do certify to us in our Chancery, at the day 
 and place aforesaid, without delay, remitting to us one part of 
 the aforesaid indenture annexed to these presents, together with 
 this writ," The messenger attending the great seal is the officer 
 whose duty it formerly was to deliver the writs for the election 
 of members of parliament to the sheriff; this, of course, he did 
 by deputy, and the only restriction imposed on him for appoint- 
 ing a deputy was, that he should not transmit the writ by a 
 candidate. The legislative provisions on this subject are con- 
 tained in 7 & 8 Will. 3, c. 25, s. 1, by which it is enacted, " that, 
 as well upon the calling or summoning any new parliament, as 
 also in case of any vacancy during the then present or any future 
 parliament, the several writs shall be delivered to the proper 
 officer to whom the execution thereof shall properly belong or 
 appertain, and to no other person whatsoever ;" and in 53 
 Geo. 3, c. 89, which allows the transmitting of the writs through 
 the post-office, except in the cases of the sheriffs of London and 
 Middlesex, and sheriffs holding their offices in London, West- 
 minster, or Southwark, or within five miles thereof Section 2 
 of the same act requires sheriffs to transmit to the post-office, 
 in manner therein mentioned, an account of the places where 
 they hold their offices. If the person intrusted with the writ, 
 or any other person, delay or obstruct the delivery of the writ, 
 he is considered guilty of a contempt of the privileges of the 
 House of Commons (c). 
 
 By Stat. 7 & 8 Will. 3, c. 25, s. 1, the sheriff is required. Sheriff to in- 
 
 . , ^ • 1 ££ • .. r ..1 dorse the time 
 
 Without any fee, gratuity, or reward, " upon receipt of the of receiving 
 writ, upon the back thereof to indorse the day he receives the 
 same." 
 
 The duty of the sheriff, as to sending his precept to the re- To send p.e- 
 
 .. -, ,. .-, , cepis to (he 
 
 turning officers {d) of cities and boroughs, is pointed out by returning 
 
 officers or' bo- 
 roughs, &e. 
 
 (c) See cases cited in 1 Jleyw. officers of certain cities and boroughs, 
 from p. 4 to 28. see 2 Will. 4, c. 45, s. 11, and scheds. 
 
 (d) As to who are the returning (C) and (D).
 
 426 sheriff's duty in the election 
 
 CHAP. XIX. 23 Hen. 6, c. 14, viz., to " make and deliver, without fraud, a 
 ^^^'^' ^' sufficient precept, under seal, to every mayor and bailiff, or to 
 the bailiffs where no mayor is of the cities, &c., in his county> 
 reciting the said writ, commanding them by the same precept, 
 if it be a city, to choose by citizens of the same city citizens ; 
 if a borough, to choose by the burgesses of the same borough 
 burgesses, to come to parliament ;" which precept or precepts, by 
 the before-mentioned statute, 7 & 8 Will. 3, c. 25, the sheriff, 
 without any fee or reward (e), " within three days after the receiiit 
 of the said writ of election, shall by himself or his proper agent, 
 deliver or cause to be delivered to the proper officer of every 
 such borough, town corporate, port, or place within his jurisdic- 
 tion, to whom the execution of such precept doth belong or ap- 
 pertain, and to no other person whatsoever (/)." 
 In cities, By 3 & 4 Vict. c. 81, s. 1, it is enacted, " that in every city 
 
 aJsbertffor O"" town in England being a county of itself, and in every bo- 
 shau' proceed roug^i) ^owu Corporate, port, or place in England returning or 
 10 election contributing to return a member or members to serve in parlia- 
 
 viiinin eigiit o „ . . 
 
 days after meut, the sheriff, or other officer to whom the duty of giving 
 
 receiving llie • • i • • i j 
 
 writ, giving guch notice belongs, shall proceed to election within eight days 
 
 tliree clear ^ ' • • i 1 J » 
 
 days' notice, after the receipt of the writ or precept, giving three clear days 
 notice at least of the day appointed for the election, exclusive 
 of both the day of proclamation and the day appointed for the 
 election." 
 Where no re- And by 6 & 7 Vict. c. 18, s. 99, it is enacted, that in cities 
 in"'it"L°or"'' and boroughs where there is no other returning officer, " it shall 
 sheriff may be lawful for the sheriff or sheriffs whose business it may be to 
 i«g officer"."" direct the precept for the return of a member or members to 
 serve in parliament for any such city or borough, by himself or 
 themselves, or by his or their deputy, to act as returning officer 
 for such city or borough." 
 Of the time As the election of knights of the shire was formerly required 
 p°roc7ama"fon, to be made in the full county {in pleno comitatu), at the next 
 and for hold- countv court, the election often took place on the day or the day 
 
 ing the elec- •' ' ... 
 
 "'"'• after the receipt of the writ, which being inconvenient, it was 
 
 afterwards provided {g) that the election was to take place at 
 
 (e) Sect. 2. See form of sheriflT's for the election of members for the 
 
 precept. Append. Cinque Ports, is allowed &it days for 
 
 (/) Sect. 1. By 10 & 11 Will. 3, making his precepts. 
 C.7, s. 2, the officer receiving the writ (g) 7 & 8 Will. 3, c. 25, s. 3.
 
 OF MEMBERS OF PARLIAMENT. 427 
 
 the next county court, unless such court took place more than chap. xix. 
 
 . ^, •,• 1 -l-IJ SECT. I. 
 
 six days after the receipt of the writ, but in such case it should 
 
 be adjourned to some other time, whereof ten days' notice 
 should be given ; thus leaving it in the power of the sheriff to 
 make long adjournments ; by another statute (A), such adjourn- 
 ment was not to be for a longer period of time than sixteen 
 days. The time for holding the election for counties was after- 
 wards regulated by 25 Geo. 3, c. 84, s. 4 ; by which statute the 
 sheriff was required '' within two days after the receipt of the 
 writ of election, to cause proclamation to be made at the place 
 where the ensuing election ought to be holden, of a special 
 county court to be there holden for the purpose of such election 
 only on any day, Sunday excepted, not later from the day of 
 making such proclamation than the sixteenth day, nor sooner 
 than the tenth day ; and that he shall proceed in such election at 
 such special county court, in the same manner as if the said 
 election was to be held at a county court or at an adjourned 
 county court, according to the laws then in being («)." 
 
 By 33 Geo. 3, c. 64, it is required that all notices of the time Notice of lUe 
 
 •' ' ' I 111 election, 
 
 and place of election shall be given at the usual place or places 
 of election, within the hours of eight o'clock in the forenoon and 
 four o'clock in the afternoon, from the 25th of October to the 
 25th of March inclusive ; and within the hours of eight o'clock 
 in the forenoon and six o'clock in the afternoon, from the 25th 
 day of March to the 25th day of October inclusive, and not 
 otherwise ; and no notice of election otherwise given shall be 
 deemed or taken to be a good or valid notice for any purpose 
 whatsoever. It appears that if the notice be not given within 
 the time prescribed, the officer cannot proceed to an election (k). 
 The expense of making the proclamation must be defrayed by 
 the sheriff, and cannot be charged to the candidates (/). 
 
 The 61st section of the 2 Will. 4, c. 45, enacts, "that the sheriffs to 
 sheriffs of Yorkshire and Lincolnshire, and the sheriffs of the ore^j'ciu/n"'* 
 counties divided by that act, shall duly cause proclamation to be sidVa" ihrm. 
 made of the several days fixed for the election of a knight or 
 knights of the shire for the several ridings, parts, and divisions 
 
 (fe) 18 Geo.2,c. 18, s. 10. (fc) See I Peck. 289; 1 Heyw. 
 
 (j) It is also thereby provided, that 395. 
 
 such special county court shall not in- (0 % the 43 Geo. 3, c. 62, tiie 
 
 terrupt the holding or adjournment of bribery oath is to be taken at the poll, 
 the regular county court.
 
 428 
 
 SHERIFF S DUTY IN THE ELECTION 
 
 CHAP. XIX. 
 SECT. I. 
 
 Of erecting 
 bouilis. 
 
 Coil lilies 
 rtividtd into 
 polling (lis- 
 trjcls. 
 
 Polling 
 booths to be 
 erected. 
 
 Poll-clerks. 
 
 of their respective counties, and shall preside at the election by 
 themselves or their lawful deputies." 
 
 The sheriff's duty in erecting booths and in appointing poll- 
 clerks, where a contest is expected, is pointed out and pre- 
 scribed by the statute 2 Will, 4, c. 45. 
 
 By sect. 63 of that act it is provided, that the several counties, 
 &c., shall be divided into different districts for polling, as 
 therein mentioned. 
 
 By sect. 64 it is enacted, " that at every contested election 
 for any county or riding, parts or division of a county, the 
 sheriflf, under-sheriff, or sheriff's deputy, shall, if required 
 thereto by or on behalf of any candidate, on the day fixed for 
 the election, and, if not so required, may, if it shall appear to 
 him expedient, cause to be erected a reasonable number of 
 booths for taking the poll at the principal place of election, 
 and also at each of the polling places so to be appointed as 
 aforesaid, and shall cause to be affixed on the most conspicuous 
 part of each of the said booths the names of the several parishes, 
 townships, and places for which such booth is respectively al- 
 lotted ; and no person shall be admitted to vote at any such 
 election in respect of any property situate in any parish, town- 
 ship, or place, except at the booth so allotted for such parish, 
 township, or place ; and if no booth shall be so allotted for the 
 same, then at any of the booths for the same district ; and in 
 case any parish, township, or place shall happen not to be in- 
 cluded in any of the districts to be appointed, the votes in 
 respect of property situate in any parish, township, or place so 
 omitted shall be taken at the principal place of election for the 
 county or riding, parts or division of the county, as the case 
 may be." 
 
 By sect. 65 it is enacted, " that the sheriff shall have power 
 to appoint deputies to preside and clerks to take the poll at the 
 principal place of election, and also at the several places ap- 
 pointed for taking the poll for any county, or any riding, parts 
 or division of a county; and that the poll-clerks employed at 
 those several places shall at the close of each day's poll enclose 
 and seal their several books, and shall publicly deliver them, so 
 enclosed and sealed, to the sheriff, under-sheriff, or sheriff's 
 deputy presiding at such poll, who shall give a receipt for the 
 same, and shall, on the commencement of the poll on the second
 
 OF MEMBERS OF PARLIAMENT. 
 
 429 
 
 day, deliver them back, so enclosed and sealed, to the persons chap. xix. 
 from whom he shall have received them ; and on the final close _^^f^^J^__ 
 of the poll, every such deputy who shall have received any such 
 poll-books shall forthwith deliver or transmit the same, so en- 
 closed and sealed, to the sheriff or his under-sheriff, who shall 
 receive and keep all the poll-books unopened until the re-as- 
 sembling of the court on the day next but one after the close of 
 the poll, unless such next day but one shall be Sunday, and then 
 on the Monday following, when he shall openly break the seals 
 thereon, and cast up the number of votes as they appear on the 
 the said several books, and shall openly declare the state of the 
 poll, and shall make proclamation of the member or members 
 chosen, not later than two o'clock in the afternoon of the said 
 day." 
 
 Sect. 66 enacts, "that in all matters relative to the election si.rriffmay 
 
 . p I- act ill plai es 
 
 of knights or a knight of a shire to serve in any future parlia- oi exclusive 
 
 „ . ,. J- ■ • c juri.-cli:tioii. 
 
 ment for any county, or for any riding, parts or division oi a 
 county, the sheriff of the county, his under-sheriff, or any lawful 
 deputy of such sheriff, shall have power to act in all places 
 having any exclusive jurisdiction or privilege whatsoever, in the 
 same manner as such sheriff, under-sheriff, or deputy, may act 
 within any part of such sheriff's ordinary jurisdiction." 
 
 By 2 Will. 4, c. 45, s. 54, provision is made for the supply to Lists of 
 the sheriff in every year of a list of the voters of the county ; forwarded 
 and sect. 72 enacts, " that the sheriff or other returning officer ti,e sherltt. 
 shall, before the day fixed for the election, cause to be made. Copies to be 
 
 ' •' ' _ provided for 
 
 for the use of each booth or other polling place at such election, each polling 
 
 1 11-11 ''""'''• 
 
 a true copy of the register of voters, and shall under his hand 
 
 certify every such copy to be true." 
 
 By the 7 & 8 Will, 3, c. 25, s. 3 ("which first provided for the Oaih to be 
 
 . . , , «aken by the 
 
 appointment of poll-clerks), it is required that every clerk shall pou-deiks. 
 take an oath (to be administered by the sheriff, under-sheriff or 
 deputy-sheriff), truly and indifferently to take the poll, and to 
 set down the names of each freeholder, and the place of his 
 freehold, and for whom he shall vote ; and to poll no freeholder 
 who is not sworn, if so required by the candidates, or any of 
 them. 
 
 The sheriff, or his under-sheriff (by the last-mentioned sta- inspectors. 
 tute), shall appoint for each candidate such one person as shall 
 be nominated by each candidate, to be inspectors of every clerk
 
 4y0 sheriff's duty in the election 
 
 CHAP. XIX. who shall be appointed for taking the poll ; and further, by the 
 ^^^^' '• 18 Geo. 2, c. 18, s. 9, "the sheriff, under-sheriff, or his de- 
 puties, shall, at every such election, allow a cheque-book for 
 every poll-book for each candidate to be kept by their respective 
 inspectors at every place where the poll for such election shall 
 be taken or carried on." 
 Deputy Besides the poll-clerks, the sheriff should appoint a deputy or 
 
 subsheriff for taking the votes in each of the booths. It is usual 
 to pay such deputy -sheriffs five guineas per day and their ex- 
 penses (m). 
 Hour and By the 23 Hen. 6, c. 14, s. 2, the sheriff is directed to pro- 
 
 Te1(ywgat°' ceed to the election, " in his full county," betwixt the hour of 
 the election, gjgj^j. ^^^j ^f eleven before noon, without collusion (n). After 
 making proclamation for silence, the election commences by the 
 sheriff reading, or causing to be read, the writ of election ; im- 
 mediately after which, by the 2 Geo. 2, c. 24, s. 3, the sheriff is 
 required to take and subscribe the following oath (which oath 
 may be administered by a justice of the peace of the county, or, 
 if none present, by any three electors), viz. " /, A. B., do so- 
 lemnly swear, that I have not directly or indirectly received any 
 sum or sums of money, office, jilace, or employment, gratuity or 
 reward, or any bond, bill or note, or any promise or gratuity 
 whatsoever, either by myself or any other person, to my use or 
 benefit, or advantage, for making any return at the present elec- 
 tion of members to serve in parliament ; and that I will return 
 such person or persons as shall, to the best of my judgment, appear 
 to me to have the majority of votes." After which the sheriff 
 should read or cause to be read the Bribery Act. 
 ot the candi- These preliminaries having been gone through, the sheriff 
 qu'a^ificaiVon, then calls upon the electors to name the candidates, upon which 
 oath, &c. ^i^g candidates are put in nomination by their respective friends. 
 It is generally the case that all the candidates are proposed at 
 the place of election, but a candidate may be proposed at any 
 time before the close of the poll (o). If any person is objected 
 to as a person disabled from sitting in parliament, although the 
 sheriff may offer his opinion as to the disability of the candi- 
 
 (m) See 1 Peck. 289 ; 1 Heyw. three months. 
 
 395. (o) 1 Doug. 246; and see 1 Heyw. 
 
 (n) Under a penalty of 100/., lobe 377, 378. 
 sued for by a common informer, within
 
 OF MEMBERS OF PARLIAMENT. 
 
 431 
 
 date, and although the votes given for him after such objection chap. xix. 
 may be thrown away, yet the sheriff should not judge of the „_^AZl_L_ 
 disability of the candidate, but receive all the votes tendered 
 for such person, and leave the party objecting to petition (p). 
 Nor is the sheriff to judge of the qualification of the candidates; 
 but it is his duty to take the votes for any candidate, although 
 objected to as ineligible. The election of such person would be 
 void if he did not take the oath prescribed (q) by the 9 Anne, 
 c. 5, s. 5, which provides that every candidate for a county (ex- 
 cept the eldest son or heir apparent of any peer, or of any per- 
 son qualified to serve as knight of the shire,) is required, upon 
 reasonable request to him to be made, (at the time of such elec- 
 tion, or before the day prefixed in the writ of summons for the 
 meeting of parliament,) by any other person who shall stand 
 candidate at such election, or by any two or more persons having 
 right to vote at such election, to take a corporal oath in the form 
 and to the effect following : 
 
 " /, J. B., do swear that I truly and bond fide have such an 
 estate, in law or equity, to and for my own use and benefit, of or in 
 lands, tenements or hereditaments {over and above what tvill satisfy 
 and clear all incumbrances that may affect the same), of the annual 
 value of 600/., above reprises, as doth qualify me to be elected 
 and returned to serve as a member for the county of N., according 
 to the tenor and true meaning of the act of parliament in that 
 behalf; and that my said lands, tenements or hereditaments, are 
 lying or being within the parish, township or precincts of or in the 
 
 several parishes, townships or precincts of , in the county of 
 
 , or in the several counties of [as the case may be](r)." 
 
 And if any of the candidates or persons proposed to be elected 
 as aforesaid shall wilfully refuse, upon reasonable request to be 
 made at the time of election, or at any time before the day upon 
 which such parliament, by the writ of summons, is to meet, to 
 take the oath thereby required, the election and return of such 
 
 (p) See cases cited ia 1 Heyw. taking the same, to certify them into 
 
 from page 626 to 547. the Courts of Queen's Bench or Chan- 
 
 (g) 1 Heyw. 548; 1 Peck. 496, n., eery, under a penalty of 100/. on fail- 
 
 526; 1 Lud. 72, 455. ing so to do. The fee for administer- 
 
 ()•) The sheriff, or two justices of ing the oath is Is.; for making the 
 
 the peace of the county, are empowered certificate 2s. ; for filing the certificate 
 
 to administer this oath, who are re- 2s.; subject to a penalty of 20/. for 
 
 quired within three months after the taking more.
 
 432 
 
 SIIKUIFF S DUTY IN THE ELECTION 
 
 CHAP. XIX. candidate or person shall be void. Dut it would appear from 
 ' ' the decision of the House of Commons, in tlie case of Serjeant 
 Comyns, that the sheriff would not be justified in refusing votes 
 tendered for a candidate who refuses to take the oath on the 
 hustings (5), for it would be sufficient if he took the oath before 
 the meeting of the parliament, as would appear from the following 
 entry of the resolution of the committee of the House (18 Journ. 
 129, Maldon, 20 May, 1715), " John Comyns, Esq., Serjeant- 
 at-Law, having at the late election for the borough of Maldon, 
 in the county of Essex, wilfully refused to take the oath of qua- 
 lification, as is directed by the 9 Anne, c. 5, though duly required 
 so to do, and not having at any time before the meeting of this 
 parliament taken the said oath, the election is thereby avoided." 
 
 Section II. 
 
 Election by View. — Poll, how taken. 
 
 Election by If there be no more candidates proposed than there are mem- 
 " "" ^ ' i)ers to be returned, the sheriflT is bound to return the candidates 
 proposed ; and in opening the poll in such case, either for the 
 purpose of giving the voters an opportunity of polling, or for the 
 purpose of giving time for another candidate to come forward, 
 he would be acting contrary to his duty (t). If there be more 
 candidates proposed than persons to be returned, the election 
 may be made either by view or by poll ; that is, when the can- 
 didates are proposed, the sheriff calls upon the freeholders to 
 hold up their hands for such of the candidates as they think fit 
 to represent the county ; he then declares in whose favour the 
 show of hands is, and if a poll be not properly demanded, such 
 person is elected on the view. If a poll be demanded, the sheriff 
 is bound to grant it : and this is provided for by the 7 & 8 Will. 
 3, c. 25, s. 3, by which it is enacted, that " in case the election 
 of knights of the shire be not determined upon the view with the 
 consent of the freeholders there present, but that a poll shall be 
 required for the determination thereof, then the said sheriff, or in 
 his absence his under-sheriff, with such others as shall be deputed 
 by him, shall forthwith there proceed to take the said poll in 
 
 (s) 2 Heyw. 551. (0 Nottingham case, 1 Peck. 85.
 
 OF MEMBERS OF PARLIAMENT. 43^ 
 
 some open and public place or places, by the same sheriff or his chap. xix. 
 
 under-sheriff, as aforesaid, in his absence, or others appointed '- — 1- 
 
 for taking thereof as aforesaid (?<)." 
 
 By 2 Will. 4, c. 45, s. 62, it is enacted, " that at every con- 
 tested election of a knight or knights to serve in any future par- 
 liament for any county, or for any riding, parts, or division of a 
 county, the polling shall commence at nine o'clock in the fore- 
 noon of the next day but two after the day fixed for the election, 
 unless such next day but two shall be Saturday or Sunday, and 
 then on the Monday following, at the principal place of election, 
 and also at the several places to be appointed as hereinafter 
 directed for taking polls ; and such polling shall continue for 
 two days only, such two days being successive days ; (that is to 
 say,) for seven hours on the first day of polling, and for eight 
 hours on the second day of polling ; and no poll shall be kept 
 open later than four o'clock in the afternoon of the second day ; 
 any statute to the contrary notwithstanding." 
 
 By the 25 Geo. -3, c. 84, s. 1, the parties, it seems, may con- Poll, anriog 
 sent that the poll should be closed before the end of the last be opJn.'and 
 polling day (a-), but without such consent it would appear that enJiry'cioe^ed. 
 the sheriff has power to close the poll before that time, after 
 proclamation, if there be no voters coming to the poll (y). 
 
 By G & 7 Vict. c. 18, ss. 81 and 82, it is enacted, " that in Of the inquiry 
 all elections whatever of a member or members to serve in par- voters'^ t the 
 liament for any county, riding, parts, or divisions of a county, or *'^'^"°"- 
 for any city or borough in England or Wales, or the town of 
 Berwick-upon-Tweed, no inquiry shall be permitted at the time 
 of polling as to the right of any person to vote, except only as 
 follows ; (that is to say,) that the returning officer or his respec- 
 tive deputy shall, if required on behalf of any candidate, put to 
 any voter, at the time of his tendering his vote, and not after- 
 wards, the following questions, or either of them : 
 
 " ] . /47'e you the same jjerson whose name appears as A. B. on 
 
 the register of voters now in force for the county of 
 
 [or ^ for the riding,' ' parts,' or ' division of 
 
 the county of ,' or 'for the city [or ' borough''\ of 
 
 ' as the case may be] ? 
 
 (n) See 1 Heyw. 367, 368. (v) See 2 Will. 4, c. 45, s. 70. 
 
 (a) See 1 Lud. 351. 
 
 F F
 
 434 
 
 SHERIFF S DUTY IN THE ELECTION 
 
 CHAP. XIX. 
 
 SECT. II. 
 
 No scrutiny 
 before re- 
 turning 
 ofiicer. 
 
 " 2. Have you already voted, either here or elsewhere, at this 
 
 election for the county of [or 'for the • riding,' 
 
 ' parts,' or * division of the county of ,' or 'for 
 
 the city [or ' borougli'\ of ' as the case may be]? 
 
 *' And if any person shall wilfully make a false answer to either 
 of the questions aforesaid he shall be deemed guilty of a misde- 
 meanor, and shall and may be indicted and punished accordingly; 
 and the returning officer or his deputy, or a commissioner or 
 commissioners to be for that purpose by law appointed, shall, if 
 required on behalf of any candidate at the time aforesaid, ad- 
 minister an oath to any voter in the following form : 
 
 " You do swear [or * affirm,' as the case may be], that you are 
 the same person whose name appears as A. B. on the register of 
 
 voters now in force for the county of [or 'for the riding,' 
 
 * parts,' or ' division for the county of ' or 'for the city' 
 
 or ' borough of ' as the case may be], and that you have not 
 
 before voted, either here or elsewhere, at the present election for the 
 
 county of [or 'for the riding,' ' parts,' or ' division 
 
 of the county of , or 'for the city [or ' borough'^ of ' as 
 
 the case may be]. So help you God." 
 
 Sect. 82 enacts, " that, save as aforesaid, it shall not be lawful to 
 require any voter at any election whatever of a member or mem- 
 bers to serve in parliament to take any oath or affirmation, either 
 in proof of his freehold, or of his residence, age, or other quali- 
 fication or right to vote, any law or statute, local or general, to 
 the contrary notwithstanding ; nor to reject any vote tendered 
 at such election by any person whose name shall be upon the 
 register of voters in force for the time being, except by reason 
 of its appearing to the returning officer or his deputy, upon put- 
 ting such questions as aforesaid, or either of them, that the per- 
 son so claiming to vote is not the same person whose name ap- 
 pears on such register as aforesaid, or that he had previously 
 voted at the same election, or except by reason of such person 
 refusing to answer the said questions or either of them, or to 
 take the said oath or make the said affirmation, or to take or 
 make the oath or affirmation against bribery ; and no scrutiny 
 shall hereafter be allowed by or before any returning officer with 
 regard to any vote given or tendered at any such election ; any 
 law, statute, or usage to the contrary notwithstanding."
 
 OF MEMBERS OF PARLIAMENT. 
 
 435 
 
 In case of a riot at the election, it is by 2 Will. 4, c. 45, s. 70, chat. xix. 
 enacted, " that where the proceedings at any election shall be _f^^^^^j^^ 
 interrupted or obstructed by any riot or open violence, the she- l"^^^^^ ^"^ 
 riff or other returning officer, or the lawful deputy of any return- 
 ing officer, shall not for such cause finally close the poll, but, in 
 case the proceedings shall be so interrupted or obstructed at any 
 particular polling place or places, shall adjourn the poll at such 
 place or places only until the following day, and if necessary 
 shall further adjourn the same until such interruption or obstruc- 
 tion shall have ceased, when the returning officer or his deputy 
 shall again proceed to take the poll at such place or places." 
 
 When the voter offers himself at the booth, he is asked by the Voter, how 
 
 ,.™,,. Tr'i 1 IT- esainincd. 
 
 deputy-sheriff his name and lor whom he votes, and his answer 
 is recorded on the poll-book. 
 
 Stat. 6 & 7 Vict. c. 18, s. 86, enacts, " that if at the time any Personating 
 person tenders his vote at such election, or after he has voted 
 and before he leaves the polling booth, any such agent so ap- 
 pointed as aforesaid shall declare to the returning officer or his 
 respective deputy presiding therein, that he verily believes and 
 undertakes to prove that the said person so voting is not in fact 
 the person in whose name he assumes to vote, or to the like 
 effect, then and in every such case it shall be lawful for the 
 returning officer or his deputy, and he is hereby required, im- 
 mediately after such person shall have voted, by word of mouth 
 to order any constable or other peace officer to take the said 
 person so voting into his custody, which said order shall be a 
 sufficient warrant and authority to the said constable or peace 
 officer for so doing: provided always, that nothing herein con- 
 tained shall be construed or taken to authorize any returning 
 officer or his deputy to reject the vote of any person who shall 
 answer in the affirmative the questions authorized by this act to 
 be put to him at the time of polling, and shall take the oaths or 
 make the affirmations authorized and required of him ; but the 
 said returning officer or his deputy shall cause the words, ' pro- 
 tested against for personation,' to be placed against the vote of 
 the person so charged with personation when entered in the poll- 
 book." 
 
 A voter cannot poll twice at the same election, nor can he Voter cannot 
 retract or alter his vote after it is entered on the poll. It often 
 happens, at contested elections, that an ignorant voter gives in 
 
 F F 2
 
 436 
 
 SHERIFF S DUTY IN THE ELECTION 
 
 CHAP. XIX. 
 SECT. II. 
 
 Where a vole 
 lias been re- 
 ceived and 
 another parly 
 tenders in 
 respect of 
 the same 
 qualificalioo. 
 
 Mistake in 
 the poll. 
 
 Tendered 
 votes. 
 
 Closing the 
 poll. 
 
 the name of only one candidate for whom he intends to vote, 
 thinking that he will be allowed to give the other vote after- 
 wards ; when such persons poll, they should be cautioned that 
 they have not a right to vote for any other person (2). 
 
 The Stat. 6^7 Vict. c. 18, s. 91, enacts, " that in case the 
 vote of any person shall have been received, and any other per- 
 son shall afterwards tender his vote as being registered in re- 
 spect of the same qualification, stating at the time the name or 
 names of the candidate or candidates for whom he tenders such 
 vote, the returning officer or his deputy shall enter upon the 
 poll-book every vote so tendered, distinguishing the same from 
 the votes admitted and allowed at such election ; provided such 
 person shall duly answer the questions hereinbefore authorized 
 to be put to any voter at the time of tendering his vote." 
 
 If there be any mistake in the poll, it is competent for the 
 sheriff to correct it ; and it is his duty, if any of the candi- 
 dates allege that there is a mistake in taking the poll, for the 
 sheriff to produce the poll and rectify it by the cheque-book, if 
 wrong (a). 
 
 Until the passing of the Reform Act, 2 Will. 4, c. 45, it was 
 the duty of the sheriff or other returning officer not only to 
 receive the votes at the poll, but to judge of the qualification of 
 the voters. Since that statute, this inquiry takes place annually 
 before the revising barristers nominated by the judges of assize, 
 and the sheriff has no longer any judicial duty to perform in this 
 respect. It is provided, however, by the 59th section of that 
 act, that persons whose claims to be upon the register have been 
 rejected by the revising barrister may, with the view of appeal- 
 ing to the Court of Common Pleas against the decision of the 
 barrister, or of petitioning the House of Commons against the 
 return, tender their votes at the poll ; in such case the returning 
 officer or his deputy must enter the same upon the poll-book, 
 distinguishing the same from the votes admitted and allowed at 
 such election. 
 
 If there be no voters to poll, or none come forward for that 
 purpose, the sheriff, after proclamation made, may close the 
 poll when he deems it expedient (6) ; but this is a power which 
 a sheriff should be very cautious in exercising. 
 
 (2) See 1 Heyw. 683. 
 (a) 1 Lud. 350. 
 
 (b) 1 Lud. 551 ; 1 Heyw. 590.
 
 OF MEMBERS OF PARLIAMENT. 437 
 
 If the votes be equal , the sheriff must make his return accord- chap. xix. 
 ingly, for he has no casting voice (e). 
 
 By 2 Will. 4, c. 45, s. 68, the mode is prescribed for adding Equality of 
 up and declaring the result of the election. Declaring (he 
 
 By 6 & 7 Vict. c. 18, s. 93, it is enacted, " that at every con- l^^^°^J^ 
 tested election of a member or members to serve in parliament Custody of 
 lor any county, ridmg, parts, or division or a county, or tor any after election 
 city or borough in England or Wales, or for the town of Ber- '^^'^'"^'^• 
 wick-upon-Tweed, the sheriff, under-sheriff, or returning officer, 
 after having declared the state of the poll, and made procla- 
 mation of the member or members chosen to serve in parlia- 
 ment, in the manner provided for by the said hereinbefore in 
 part recited act (2 Will. 4, c. 45,) shall forthwith enclose and 
 seal up the several poll-books, and tender the same to each of 
 the candidates, to be sealed by them respectively ; and in case any 
 candidate shall neglect or refuse to seal the same, the sheriff, 
 under-sheriff or returning officer shall thereupon indorse on one 
 of the said poll-books the fact of such neglect or refusal; and 
 every such sheriff, under-sheriff, or other returning officer shall, 
 by himself or his agent, as soon as possible after such proclama- 
 tion as aforesaid, deliver the same poll-books, so sealed as afore- 
 said, to the clerk of the crown in the High Court of Chancery or 
 his deputy, or deliver the same, directed to the said clerk of the 
 crown, to the postmaster or deputy postmaster of the city, town, 
 or place wherein such proclamation shall have been made as 
 aforesaid, who on receipt thereof shall give an acknowledgment 
 in writing of such receipt to such sheriff, under-sheriff, or return- 
 ing officer, expressing therein the time of such delivery, and shall 
 keep a duplicate of such acknowledgment, signed by such sheriff, 
 under-sheriff, or returning officer; and the said postmaster or 
 deputy postmaster shall dispach all such poll-books, so sealed 
 and directed as aforesaid, by the first post or mail after the receipt 
 thereof, to the General Post Office in London; and the post- 
 master or postmasters general are hereby directed, immediately 
 on receipt of such j)oll-books, to convey the same to the Crown 
 Office, and to deliver the same there, so sealed as aforesaid, to 
 the said clerk of the crown or his dequty; and the said clerk of 
 the crown or his deputy is hereby required to give to such post- 
 master or postmasters general, sheriff, under-sheriff, returning 
 (e) 1 Heyw. 601.
 
 438 
 
 SHERIFF S DUTY IN THE ELECTION 
 
 CHAP. XIX. 
 SECT. ir. 
 
 Copy of Ihe 
 poll to be 
 delivered to 
 person de- 
 manding. 
 
 officer, or agent delivering the same, a memorandum in writing, 
 acknowledging the receipt of such poll-books, and setting forth 
 the day and hour when the same were delivered to the Crown 
 Office ; and the said clerk of the crown or his deputy is hereby 
 required, immediately on receipt of such poll-books, to register 
 the same in the books of the said Crown Office, and to indorse 
 thereon the day and hour upon which he received the same ; and 
 every such sheriff, under-sheriff, or returning officer is hereby 
 required, at the time of transmitting such poll-books as afore- 
 said through the post office, to address and forward a letter by 
 the same post or mail to the said clerk of the crown, informing 
 him of such transmission and giving the number and description 
 of such poll-books so transmitted." 
 
 By 7 & 8 Will. 3, c. 25, s. 6, every returning officer shall 
 forthwith deliver to such person or persons as shall desire the 
 same, a copy of the poll taken at such election, paying only a 
 reasonable charge for writing the same, subject to the penalty 
 of 500^. 
 
 Punishment 
 by the House. 
 
 Section III. 
 
 Of ihe Liabilities of the Sheriff for Misbehaviour in the Election 
 of Members, and of Actions by him for Expenses incurred 
 therein. 
 
 If the sheriff, in the discharge of his duty in the election of 
 members to serve in parliament, act wilfully and corruptly, it is 
 considered a contempt of the House, for which the House will 
 commit him to custody. Thus, in the Middlesex case, the 
 committee resolved that the sheriffs, on certain days of the poll, 
 wilfully, knowingly and corruptly did admit to poll 300 persons 
 claiming under a fictitious right, whereby one of the candidates 
 obtained a colourable majority in his favour: — " Resolved, that 
 it appears to this committee that the sheriffs at the poll acted in 
 a judicial capacity, by allowing counsel to argue the validity of 
 votes, and by deciding, in some instances, on the validity of such 
 votes ; that in other instances they refused to decide on the vali- 
 dity of votes which were objected to, and stated that they would 
 admit any persons to poll who would take the oaths, declaring 
 themselves to be only ministerial officers, thereby acting in a
 
 OF MEMBERS OF PARLIAMENT. 439 
 
 manner contradictory to their practice in other cases, and in fla- chap. xix. 
 grant violation of their duty -.—Resolved, that it appears to the ^^^'^' "'• 
 committee that the obvious tendency of their conduct was to 
 admit persons having no right to poll, and to afford the greatest 
 encouragement to perjury." After hearing counsel, the House 
 of Commons agreed to the resolutions of the committee, and re- 
 solved, " that the sheriffs, by their conduct and practices at the 
 said election, as stated in the foregoing resolutions, as well as 
 by refusing to refer to the assessments for the land tax, acted in 
 violation of their duty, contrary to law, and in breach of the 
 privilege of this House." And it was ordered that they should 
 be committed to Newgate (e). 
 
 By the Stat. 7 & 8 Will. 3, c. 7, if the sheriff" or returning False return, 
 officer "wilfully" make a false return of any member to serve 
 in parliament (returning members contrary to the last determi- 
 nation of the House of Commons is to be considered a false re- 
 turn), or if any officer shall " wilfully, falsely, and maliciously" 
 make a return of more persons than are required, he is liable to 
 an action at the suit of the party grieved. In the great case of 
 Ashby V. White, where the declaration alleged that a returning 
 officer maliciously refused the vote of a person having a right 
 to vote, it was determined by the House of Lords that an action 
 lay against the returning officer for such refusal (/). But it 
 would appear that malice is a necessary ingredient in such 
 action (^). And if the party had in fact no right to vote, 
 although his name was on the register, he cannot maintain any 
 action at all against the reluming officer for refusing to receive 
 his vote (h). By 2 Will. 4, c. 45, s. 76, it is enacted, " that if any 
 sheriff^, returning officer, barrister, overseer, or any person what- 
 soever, shall wilfully contravene or disobey the provisions of this 
 act or any of them, with respect to any matter or thing which 
 such sheriff", returning officer, barrister, overseer, or other person 
 is hereby required to do, he shall for such his offence be liable to 
 be sued in an action of debt in any of his majesty's courts of 
 record at Westminster for the penal sum of five hundred pounds, 
 and the jury before whom such action shall be tried may find their 
 verdict for the full sum of five hundred pounds, or for any less 
 
 (e) 1 Peck. 28, 29. (g) Diewe v. Cotton, note, 1 East, 
 
 (/) 2 Lord Raym. 938, 958 ; Salk. 563. 
 19, S. C; 6 Mod. 45. (ft) Pryce i-. Belcher, 16 Law J. 264, 
 
 C. B.
 
 440 
 
 SHERIFF S DUTY IN THE ELECTION 
 
 CHAP. 
 
 SECT. 
 
 Sheriff may 
 commit |ier- 
 suns dis- 
 turbina; the 
 election. 
 
 Aclioiis by 
 sheriff for 
 
 sum which the said jury shall think it just that he should pay 
 for such his offence ; and the defendant in such action, being 
 convicted, shall pay such penal sum so awarded, with full costs 
 of suit, to the party who may sue for the same : provided always, 
 that no such action shall be brought except by a person being an 
 elector or claiming to be an elector, or a candidate or a member 
 actually returned, or other party aggrieved : provided also, that 
 the remedy hereby given against the returning officer shall not 
 be construed to supersede any remedy or action against him 
 according to the law now in force," By 6 & 7 Vict. c. 18, s. 97, 
 it is enacted, " that every sheriff, under-sheriff', clerk of the 
 peace, town clerk, secondary, returning officer, clerk of the 
 crown, postmaster, overseer, or other person or public officer 
 required by this act to do any matter or thing, shall for every 
 wilful misfeasance or wilful act of commission or omission con- 
 trary to this act forfeit to any party aggrieved the penal sum of 
 one hundred pounds, or such less sum as the jury before whom 
 may be tried any action to be brought for the recovery of the 
 before-mentioned sum shall consider just to be paid to sucii 
 party, to be recovered by such party, with full costs of suit, by 
 action for debt in any of her majesty's superior courts at West- 
 minster : provided always, that nothing herein contained shall 
 be construed to supersede any remedy or action against any re- 
 turning officer according to any law now in force." And by 
 various other acts of parliament, the sheriff" or returning officer 
 is subjected to penalties for not discharging his duty ; these 
 will be found by reference to the particular subjects. 
 
 If any person make a riot or otherwise disturb the proceed- 
 ings at the election, the sheriff may commit such person to 
 prison (i). 
 
 A candidate at an election for members of parliament is liable 
 to no expense except such as the statute law casts upon him, or 
 he takes upon himself hy his express or implied consent {k). Thus, 
 by the 18 Geo. 2, c. 18, s. 7 (/), the sheriff is to erect booths, 
 &c. at the expense of the candidates; and by 2 Will. 4, c. 45, 
 s. 71, it is enacted, " that from and after the end of this present 
 parliament, all booths erected for the convenience of taking polls 
 
 1 
 
 (i) Spilsbury v. Micklethwaile, 
 Taunt. 146. 
 
 (k) Per Lord Ellenborough, C. J., 
 1 Camp. 222. 
 
 (/) This act is extended to the elec- 
 tions for Westminster, by the stat. 51 
 Geo. 3, c. 126.
 
 OF MEMBERS OF PARLIAMENT. 441 
 
 SECT. iir. 
 
 shall be erected at the joint and equal expense of the several chap. xix. 
 candidates, and the same shall be erected by contract with the 
 candidates, if they shall think fit to make such contract, or if they 
 shall not make such contract, then the same shall be erected by 
 the sheriff or other returning officer at the expense of the several 
 candidates as aforesaid, subject to such limitation as is herein- 
 after next mentioned ; that is to say, that the expense to be 
 incurred for the booth or booths to be erected at the principal 
 place of election for any county, riding, parts, or division of a 
 county, or at any of the polling places so to be appointed as 
 aforesaid, shall not exceed the sum of forty pounds in respect 
 of any one such principal place of election or any one such 
 polling place ; and that the expense to be incurred for any booth 
 or booths to be erected for any parish, district, or part of any 
 city or borough, shall not exceed the sum of twenty-five pounds 
 in respect of any one such parish, district, or part ; and that all 
 deputies appointed by the sheriff or other returning officer sliall 
 be paid each two guineas by the day, and all clerks employed 
 in taking the poll shall be paid each one guinea by the day, at 
 the expense of the candidates at such election : provided always, 
 that if any person shall be proposed without his consent, then 
 the person so proposing him shall be liable to defray his share 
 of the said expenses, in like manner as if he had been a can- 
 didate; provided also, that the sheriff or returning officer may, 
 if he shall think fit, instead of erecting such booth or booths 
 as aforesaid, procure or hire and use any houses or other build- 
 ings for the purpose of taking the poll therein, subject always 
 to the same regulations, provisions, liabilities, and limitations 
 of expense as are hereinbefore mentioned with regard to booths 
 for taking the poll." The contested election mentioned in 
 section G8 means the poll, and the candidates mentioned in 
 section 71 mean those who go to or demand a poll. A candi- 
 date who declines to go to the poll after having been nominated, 
 is not liable to any part of the expenses (m). And by 34 Geo. 3, 
 c. 73, the expense of administering oaths is to be borne by the 
 candidates. A person who is returned to parliament by certain 
 electors, without showing himself or otherwise offering himself 
 for the suffrages of the electors, or assuming, by himself or his 
 agents, the character of a candidate, although afterwards elected, 
 
 (m) Muntz v, Sturge, 8 M. & W. 302.
 
 442 sheriff's duty in the election 
 
 CHAP. XIX. is not a candidate within the meaning of this act (n). But if 
 
 LZlilil. the committee of the candidate ask for places and tickets for 
 
 the hustings, to which the candidate assents, although he pro- 
 tests against being charged with the expenses, yet he will be 
 liable (o). The candidates, without a joint undertaking to the 
 sheriff to pay the expense, are not jointly liable {p) ; but if 
 they jointly request the sheriff to erect booths, &c., they will 
 be jointly liable (q). In two nisi priiis cases, the charges that 
 the sheriff might make against the candidates were canvassed by 
 the respective judges who tried the causes (Lord Ellenborough 
 and Lawrence, J.) In one case, Wathen v. Sandys (r), a joint 
 action was brought against two candidates for the expenses 
 incurred during the election ; two objections were taken, — 
 1st, that the action should not have been joint but separate; 
 2nd, that the action should have been on the statute, and not an 
 action of indebitatus assumpsit. And several of the items were 
 also objected to as not being chargeable against the candidates. 
 Lawrence, J., is reported to have said, " Both objections admit 
 of the same answer. The plaintiff does not proceed upon the 
 statute. If the sheriff had merely been desired to erect booths 
 in pursuance of the statute, then we should have had to con- 
 sider what remedy the statute gives him. But there is an 
 express undertaking on the part of both to pay for the hustings, 
 the assessor, and the poll-clerks, on which the two are jointly 
 liable. However, although the action is certainly maintainable, 
 there are several parts of the plaintiff's demand with which he has 
 no right to charge the defendants. The first eight items, amount- 
 ing to 40/. 5s. for the indentures, &c., only concern the exe- 
 cution of his office of sheriff, and there is no pretence for 
 throwing them upon the candidates. The same thing may be 
 said of the charge for constables. The sheriff is bound to pre- 
 serve the peace of the county : if he is put to any extraordinary 
 expense in this way, let him represent the matter when he passes 
 his accounts in the Exchequer, or directly to his majesty's 
 government. Any claims he may have for remuneration will 
 thus be attended to ; but he has no more right to recover such 
 charges from a candidate at the election than from any other 
 
 (h) Morris v. Buidett, 2 M. & S. & Sel. 283. 
 13. (7) Wathen v. Sandys, 2 Camp. 
 
 (0) Morris v. Burdett, 1 Camp. 225. 640. 
 (p) Morris v. Lord Cochrane, 1 M. (r) 2 Camp. 640.
 
 OF MEMBERS OF PARLIAMENT. 443 
 
 individual in his bailiwick." There were several other items chap. xix. 
 that his lordship advised the jury to disallow entirely ; such as _!'^^^' "'' 
 the surveyors, and printing the poll-books. Another class he 
 advised them considerably to reduce. The plaintiff could only 
 recover the original expense of erecting the hustings, not the 
 costs of any action brought against him by the person who had 
 erected them. For the assessor his lordship thought the de- 
 fendants liable, although this was an expense not mentioned in 
 the statute, which was meant for the protection of the sheriff, 
 not of the candidates ; but the accompanying charges for agent's 
 fees, &c. in retaining the assessor, he considered as exorbitant. 
 Advantage, he observed, was often taken of the situation of 
 candidates to sit in parliament, who were afraid to resist any 
 demand, however unreasonable, lest they should render them- 
 selves unpopular ; and thus a sort of custom was set up for the 
 imposition practised upon them ; but such charges as twenty-five 
 guineas for leaving a retainer with a gentleman at the bar, and 
 paying him his fee, could not be supported in a court of justice, 
 however long established. 
 
 In the other case, Morris v. Burdett (s). Lord EUenborough, 
 C. J., is reported to have said, " A candidate at an election for 
 members of parliament is liable to no expenses except such as 
 the statute law casts upon him, or he takes upon himself by his 
 express or implied consent. A great number of the items in 
 this case may therefore be entirely laid out of consideration, as 
 arising from acts which the plaintiff was bound to do by reason 
 of his office, or as of such a nature that no promise to contribute 
 to them can possibly be inferred. To proclaim the election is a 
 duty which the law imposes upon the high bailiff; and there is 
 the less pretence for charging the candidates with it, as they had 
 not then been nominated. It does not seem necessary that he 
 should have been attended on the occasion with six under- 
 bailiffs, the crier on horseback, &c. ; but if it was, he must con- 
 sider the consequent expense a burthen he took upon himself 
 along with his office. So the law requires him to do whatever 
 is necessary to making the return. For a share of the expense 
 incurred in administering the oaths to the Roman Catholic 
 electors the defendant appears to be liable, if he shall be con- 
 sidered as having conceded to the character of a candidate." 
 
 (s) 1 Camp. 222.
 
 ( 444 ) 
 
 CHAPTER XX. 
 
 OF THE sheriff's DUTY IN THE ELECTION OF CORONERS. 
 
 When the office of coroner becomes vacant, a writ, styled a 
 writ de coronatore eligendo, issues out of Chancery, directed to 
 the sheriff of the county, by which, after reciting the death of 
 the late coroner, the sheriff is commanded " that in his full 
 county he cause one other to be chosen in the place of the de- 
 ceased coroner, who, having taken his oath in the usual manner, 
 raay do all things which belong to the office of coroner, and 
 cause such an one to be chosen as best knoweth and can attend 
 that office ; and that the sheriff certify to the court the name of 
 the person chosen." 
 
 Qnaiificaiions By Stat. WestiTi. 1 (3 Edw. 1), c. 10, it is enacted, "that 
 through all shires sufficient men shall be chosen, of the most 
 loyal and wise knights, which know, will and may best attend 
 upon such offices, and which lawfully shall attach and present 
 pleas of the crown." And by 14 Edw. 3, stat. 1, c. 8, it is 
 enacted, " that no coroner be chosen unless he have land in fee 
 sufficient in the same county whereof he may answer to all 
 manner of people." In ancient times it appears that no person 
 under the degree of knight was chosen for this office, and it was 
 deemed a sufficient cause for discharging a person from the 
 office of coroner that he was not a knight (a). But the object 
 of the above statutes was merely to prevent persons of mean 
 ability from being chosen coroners ; the qualification of the 
 person for the office of coroner is sufficient, provided he is a 
 person of property ; and for ages past it has been the usage to 
 elect persons below the degree of knights to be coroners (b). 
 
 How elected. By 28 Edw. 3, c. 6, it is enacted, " that all coroners of 
 counties shall be chosen in the full counties by the commons of 
 the said counties, of the most meet and lawful people that shall be 
 
 («) 2 Inst. 32, 176; 4 Inst. 271 ; (/>) 2 Hawk. P. C. c. 9, s. 3; 2 
 
 Filz. Nat. Brev. 164 ; Reg. 177. Leon. 260.
 
 sheriff's duty in the election of coroners. 445 
 
 found in the same counties to execute the said offices ; saving chap. xx. 
 always to the king and other lords, who ought to make such 
 coroners, their seignories and franchises (c)." 
 
 The election of county coroners is to be by the freeholders of 
 the county, and it is regulated by the statute 7 & 8 Vict. c. 92, 
 The first section of that act recites, that the regulations for the 
 elections of coroners for counties are insufficient, and that such 
 elections are made with much inconvenience and are attended 
 with great and unnecessary expense, and then proceeds to repeal 
 the 58 Geo. 3, c. 05, under which such elections were previously 
 conducted. 
 
 Sect. 2 enacts, " that when and so often as it shall seem ex- 
 pedient to the justices of any county that such county should be 
 divided into two or more districts for the purposes of this act, 
 or that any alteration should be made of any division theretofore 
 made under this act, it shall be lawful for the said justices, in 
 general or quarter sessions assembled, to resolve that a petition 
 shall be presented to her majesty, praying that such division or 
 alteration be made, and thereupon to adjourn the further con- 
 sideration of such petition until notice thereof shall be given to 
 the coroner or coroners of such county as herein-after provided." 
 
 Sect. 3 enacts, " that the clerk of the peace shall give notice 
 of any such resolution to every coroner for such county, and of 
 the time when the petition will be taken by the said justices 
 into consideration, and the justices shall confer with every such 
 coroner, who shall attend the meeting of the justices for that 
 purpose, touching such petition, having due regard to the size 
 and nature of each proposed district, the number of the inha- 
 bitants, the nature of their employments, and such other circum- 
 stances as shall appear to the justices fit to be considered in 
 carrying into execution the provisions of this act ; and such 
 
 (c) The queen may claim this fran Colridge granted to her by Hen. 8, in 
 
 chise by prescription ; but the privi- the thirty-fifth year of his reign, with 
 
 lege is of so high a nature, that no power to nominate coroners. The 
 
 subject can claim it otherwise than by coroner of the admiralty is appointed 
 
 grant from the crown ; Co. Litt. 114 a; by the Lord High Admiral. The ap- 
 
 2 Hawk. P. C. c, 9, s. 11. The pointment of coroner of the Verge is 
 
 mayor of London is by charter coro- settled in perpetuity in the Lord High 
 
 ner of that city. By charter ( Hen. 7) Steward, or Lord Great Master of the 
 
 the Bishop of Ely has the power to King's House, for the time being; Bac. 
 
 appoint the coroners for that isle. Abr., Coroners. 
 Queen Catherine had the hundred of
 
 446 sheriff's duty in the election of coroners. 
 
 CHAP. XX. petition, with a description of the several proposed districts, and 
 of the boundaries thereof, with the reasons upon which the pe- 
 tition is founded, shall be certified to her majesty under the 
 hands and seals of two or more of the justices present when 
 such petition shall be agreed to, and the clerk of the peace for 
 such county shall forthwith give or send a true copy of such 
 petition, certified under his hand, to every coroner for such 
 county." 
 
 Sect. 4 enacts, " that it shall be lawful for her majesty, if 
 she shall think fit, with the advice of her privy council, after 
 taking into consideration any such petition, and also any petition 
 which may be presented to her by any coroner of the same 
 county concerning such proposed division or alteration, or when- 
 ever it shall seem fit to her majesty to direct the issue of a 
 writ de coronatore eligendo, for the purpose of authorizing the 
 election of an additional coroner above the number of those who 
 have been theretofore customarily elected in such county, to 
 order that such county shall be divided into such and so many 
 districts, for the purposes of this act, as to her majesty, with 
 the advice aforesaid, shall seem expedient, and to give a name 
 to each of such districts, and to determine at what place within 
 each district the court for the election of coroner for such dis- 
 trict shall be holden as hereinafter provided, and every such 
 order shall be published in the London Gazette." 
 
 Sect. 5 enacts, " that the justices in general or quarter session 
 assembled shall assign one of such districts to each of the per- 
 sons holding the office of coroner in such county, and upon the 
 death, resignation, or removal of any such person, each of his 
 successors, and also every other person thereafter elected into 
 the office of coroner in such county, shall be elected to and 
 shall exercise the office of coroner, according to the provisions 
 of this act, and shall reside within the district in and for which 
 he shall be so elected, or in some place wholly or partly sur- 
 rounded by such district, or not more than two miles beyond 
 the outer boundary of such district." 
 
 Sect. C enacts, " that whenever it shall appear to her majesty, 
 with the advice aforesaid, and shall be set forth in the said order 
 in council, that any such county has been customarily divided 
 into districts for the purpose of holding inquests during the 
 space of seven years before the passing of this act, and it shall
 
 sheriff's duty in the election of coroners. 447 
 
 seem expedient to her majesty, with the advice aforesaid, that chap, xx. 
 the same division of the county be made under this act, each of 
 such districts sliall be assigned to the coroner usually acting in 
 and for the same district before the passing of this act ; but if it 
 shall appear expedient to her majesty, with the advice aforesaid, 
 that a different division of such county be made, and any such 
 coroner shall present a petition to her majesty, praying for com- 
 pensation to him for the loss of his emoluments arising out of 
 such change, it shall be lawful for her majesty, with the advice 
 aforesaid, to order the lord high treasurer or commissioners of 
 her majesty's treasury to assess the amount of compensation 
 which it shall appear to him or them ought to be awarded to 
 such coroner, and the amount of such compensation shall be 
 paid by the treasurer of the county to such coroner, his exe- 
 cutors or administrators, out of the county rate.'' 
 
 Sect. 7 enacts, "that such justices so assembled as aforesaid 
 shall order a list to be prepared by the clerk of the peace for 
 their respective counties of the several parishes, townships, or 
 hundreds, as the case may be, in each and every of the several 
 districts into which the respective counties shall be divided 
 under the authority of this act, specifying in such list the place 
 within each district at which the court for the election of coro- 
 ner is to be holden, and also the place or places at which the 
 poll shall be taken, inserting the parishes, townships, and places 
 for each of such polling places, and shall cause such order to be 
 enrolled among the records of the county." 
 
 Sect. 8 enacts, •' that all isolated or detached parts of counties 
 shall be considered, for the purposes of this act, as forming a 
 part of that county, riding, or division respectively, whereby 
 such isolated or detached parts shall or may be wholly sur- 
 rounded, but if any such isolated or detached part shall be 
 surrounded by two or more counties, ridings, or divisions, then 
 as forming part of that county, riding, or division, with which 
 such isolated or detached part shall have the longest common 
 boundary." 
 
 Sect. 9 enacts, " that from and after the time when any county 
 shall have been so as aforesaid divided, every election of a co- 
 roner for any such district shall be held at some place within 
 the district in which he shall be elected to serve the office of 
 coroner ; and that every person to be so elected shall be chosen
 
 418 sheriff's duty in the election of coroners. 
 
 CHAP. XX. by a majority of such persons residing within such district as 
 shall at the time of such election be duly qualified to vote at the 
 elections of coroners for the said county. 
 
 Sect. 10 enacts, " that from and after the division of any 
 counties as aforesaid into coroners' districts, upon every election 
 to be made of any coroner or coroners for any county, the 
 sheriff of the county where such election shall be made shall 
 hold a court for the same election at some convenient place 
 within the district for which the election of coroner shall take 
 place, on some day to be by him appointed, which day shall not 
 be less than seven days nor more than fourteen days after the 
 receipt of the writ de coronatore eligcndo ; and in case the said 
 election be not then determined upon the view, with the consent 
 of the electors there present, but that a poll shall be demanded 
 for determination thereof, then the said sheriff, or in his absence 
 his under-sheriff, shall adjourn the same court to eight of the 
 clock in the forenoon of the next day but one, unless such next 
 day but one shall be Saturday or Sunday, and then of the Monday 
 following; and the said sheriff, or in his absence the under- 
 sheriff, with such others as shall be deputed by him, shall then 
 and there proceed to take the said poll in some public place or 
 places by the same sheriff, or his under-sheriff as aforesaid in 
 his absence, or others appointed for the taking thereof as afore- 
 said ; and such polling shall continue for two days only, for eight 
 hours in each day ; and no poll shall be kept open later than 
 four of the clock in the afternoon of either of the said days." 
 
 Sect. 1 1 enacts, " that for more conveniently taking the poll 
 at all elections of coroners under the authority of this act, the 
 poll for the election of the coroner in each district shall be taken 
 at the place to be appointed for holding the court for such elec- 
 tion, and at such other places within the same district as may for 
 the time being be appointed by the quarter sessions." 
 
 Sect. 12 enacts, " that at every contested election of coroner 
 for any district of the said county, the sheriff, under-sheriff, or 
 sheriff's deputy, shall, if required by or on the behalf of any 
 candidate on the day fixed for the election, and, if not so re- 
 quired, may, if it shall appear to him expedient, cause a booth 
 or booths to be erected for taking the poll at the court or prin- 
 cipal place of election, and also at each of the polling places 
 within the district hereinbefore directed to be used for the pur-
 
 sheriff's duty in the election of coroners. 449 
 
 poses of such election, and shall cause to be affixed on the most ciiah.xx. 
 conspicuous part of each of the said booths the names of the 
 several parishes, townships, and places, for which such booth is 
 respectively allotted ; and no person shall be admitted to vote 
 at any such election in respect of any property situate in any 
 parish, township or place, except at the booth so allotted for 
 such parish, township, or place, and if no booth shall be allotted 
 for the same, then at any of the booths for the same districts ; 
 and in case any parish, township, or place, or part of any parish, 
 township, or place, shall happen not to be included in any of the 
 districts, the votes in respect of property situate in any parish, 
 township or place, or any part of any parish, township, or place, 
 so omitted, shall be taken at the court or principal place of 
 election for such district of the said county." 
 
 Sect. 13 enacts, " that the said sheriff, or in his absence the 
 under-sheriff, or such as he shall depute, shall appoint such 
 number of clerks as to him shall seem meet and convenient for 
 the taking thereof, which clerks shall take the said poll in the 
 presence of the said sheriff or his under-sheriff, or such as he 
 shall depute ; and before they begin to take the said poll, every 
 clerk so appointed shall by the said sheriff or his under-sheriff, 
 or such as he shall depute as aforesaid, be sworn truly and in- 
 differently to take the same poll, and to set down the names of 
 each elector, and the place of his residence, and for whom he 
 shall poll, and to poll no elector who is not sworn, if required 
 to be sworn by the candidates or either of them ; and which 
 oaths of the said clerks the said sheriff or his under-sheriff, or 
 such as he shall depute, shall have authority to administer ; and 
 the sheriff, or in his absence his under-sheriff as aforesaid, shall 
 appoint for each candidate such one person as shall be nominated 
 to him by each candidate, to be inspector of every clerk who 
 shall be appointed for taking the poll ; and every elector, before 
 he is admitted to poll at the same election, shall, if required by 
 or on behalf of any candidate, first take the oath hereinafter 
 mentioned ; which oath the said sheriff, by himself or his 
 under-sheriff, or such sworn clerk by him appointed for taking 
 the said poll as aforesaid, shall have authority to administer ; 
 that is to say, 
 
 '• / swear [or, being one of the people called Quakers, or en- 
 titled by law to make affirmation, ' solemnly affirm'^, That I am 
 
 G G
 
 i50 sheriff's duty in the election of coroners. 
 
 CHAP. XX. a freeholder of the county of andhave a freehold estate, con- 
 sisting of %'"S' ^t within the said county ; and that 
 
 such freehold estate has not been granted to me fraudulently or 
 colourahly on purpose to qualify me to give my vote at this election; 
 
 and that the place of my abode is at [and, if it be a place 
 
 consisting of more streets or places than one, specifying what 
 street or place] ; that I am trventy-one years of age, as I believe ; 
 and that I have not been before polled at this election [adding, 
 except in cases of solemn affirmations] So help me God." 
 
 Sect. ] 4 enacts, " that every elector or other person who shall 
 wilfully and falsely take the said oath or affirmation hereby 
 appointed to be taken by the electors as aforesaid, shall for 
 every such offence incur the penalties by law inflicted on per- 
 sons guilty of perjury; and every person who shall unlawfully 
 and corruptly procure or suborn any freeholder or other person 
 wilfully and falsely to take the said oath or affirmation in order 
 to be polled, shall for every such offence incur such pains and 
 penalties as are by law inflicted on persons guilty of subornation 
 of perjury." 
 
 Sect. 15 enacts, " that the poll clerks shall, at the close of the 
 poll, enclose and seal their several books, and shall publicly 
 deliver them, so enclosed and sealed, to the sheriff, under-sheriff, 
 or sheriff's deputy, presiding at such poll, who shall give a 
 receipt for the same ; and every such deputy who shall have 
 received any such poll books shall forthwith deliver or transmit 
 the same, so enclosed and sealed, to the sheriff or his under- 
 sheriff, who shall receive and keep all the poll books unopened 
 until the reassembling of the court on the day next but one 
 after the close of the poll, unless such next day but one shall be 
 Sunday, and then on the Monday following, when he shall 
 openly break the seals thereon, and cast up the number of votes 
 as they appear on the said several books ; and shall openly de- 
 clare the state of the poll, and shall make proclamation of the 
 person chosen, not later than two of the clock in the afternoon 
 of the said day." 
 
 Sect. 16 enacts, " that all the reasonable costs, charges, and 
 expenses, which the said sheriff, or his under-sheriff or other 
 deputy, shall expend or be liable to in and about the providing 
 of poll books, booths, and clerks (such clerks to be paid not 
 more than one guinea each for each day), for the purpose of
 
 sheriff's duty in the election of coroners. 451 
 
 taking the poll at any such election, shall be borne and paid by c hap, xx. 
 the several candidates at such election in equal proportions." 
 
 Sect. 19 enacts, "that every coroner elected under the autho- 
 rity of this act, although such coroner may be designated as the 
 coroner for any particular district of a county, and may be 
 elected by the electors of such district, and not by the free- 
 holders of the county at large, shall for all purposes whatsoever, 
 except as hereinafter mentioned, be considered as a coroner for 
 the whole county, and shall have the same jurisdiction, rights, 
 powers and authorities throughout the said county, as if he had 
 been elected one of the coroners of the said county by the free- 
 holders of the county at large." 
 
 Sect. 27 enacts, "that nothing in this act contained touching 
 the divisions of counties into districts, or the appointment or 
 election of coroners, shall extend to the county of Chester, or 
 any county palatine, city, borough, town, liberty, franchise, part, 
 or place, the appointment or election of coroner whereof takes 
 place by law otherwise than under the writ de coronatore 
 eligendo." 
 
 Sect. 28 enacts, "that in construing this act, the word "county" 
 shall be taken to mean county, riding, or division of a county in 
 and for which a separate coroner hath been customarily elected; 
 and that in the counties of York and Lincoln, all things herein- 
 before directed to be done by and with respect to the justices in 
 general or quarter sessions assembled and by their clerk, shall 
 be done by and with respect to the justices of the said counties 
 of York and Lincoln in general gaol session assembled and by 
 their clerk." 
 
 Sect. 29 enacts, "that nothing herein contained shall be con- 
 strued to abridge or affect the royal prerogative, or the autho- 
 rity of the lord chancellor, for issuing a writ de coronatore 
 eligendo, as fully as if this act had not been passed." 
 
 The election is to be by the freeholders at large in the county 
 court ; and therefore, in counties where the county court is not 
 required by statute to be held in any particular place, the 
 sheriff may, if he please, hold the election in any place in his 
 county. A sufficient time before the day of election, the sheriff 
 should make a proclamation of the day and place of election (fi). 
 
 (d) See form of proclamation, Append. 
 G G 2
 
 452 sheriff's duty in the election of coroners, 
 
 CHAP. XX. At that day, after the candidates are proposed, the sheriff is to 
 say, by show of hands, on whom the election has fallen. If a 
 poll be demanded, it is the sheriff's (e) duty to grant it, to take 
 down the names of the freeholders who poll, and to examine 
 into and judge of the right of voting of the persons tendering 
 their votes. At the close of the poll (when there are no more 
 freeholders to poll) the sheriff is to declare on whom the elec- 
 tion has fallen. If a scrutiny be demanded, the sheriff may (for 
 scrutiny is incident to every election by vote) grant it ; but it 
 would appear to be discretionary whether he grant it or not. 
 
 Oath. As soon as the new coroner is elected, the sheriff should 
 
 administer to him in open court the oath of office here-under 
 mentioned (/). In addition to this oath, the coroner should 
 take the oath of allegiance, supremacy and abjuration; and 
 within six months after his election he should take the sacra- 
 ment. 
 
 Return. The sheriff makes his return conformable to the election (g). 
 
 If the sheriff refuse to return a person elected coroner, it 
 appears that an action on the case would lie against him (A). 
 
 (e) The sheriff rarely attends, but things appertaining to your office, after 
 the under-sheriff performs tiiis part of the best of your cunning, wit, and 
 the office. power, both for the queen's profit and 
 
 (f) " You shall swear that you for the good of the inhabitants within 
 will well and truly serve our Sove- the said county, taking such fees as 
 reign Lady the Queen's Majesty and you ought to take by the laws and 
 her liege people in the office of coroner, statutes of this realm, and not other- 
 and as one of her Majesty's coroners wise. So help you God." 
 of the county of N., and therein you {g) See return, posf. Append, 
 shall diligently and truly do and ac- (h) Per Archer, J,, in Turner i^, 
 complish all and every thing and Stirling, 2 Vent. 27.
 
 ( 453 ) 
 CHAPTER XXI. 
 
 SCIRE FACIAS, ATTACHMENTS, ETC. 
 
 The duty of a sheriff, on a writ of scire facias, is to indorse Scire facias. 
 on it the day of the month on which it was left with him {a), 
 and if he know that the defendant can be served, to issue 
 his warrant thereon {h) to two or more baihffs, to warn the 
 defendant; the baihffs make an indorsement on this warrant 
 either that they have or have not served the process, and 
 return it to the sheriff; conformably thereto the sheriff returns 
 either nihil or scire feci (c). In proceeding against bail by scire 
 facias, the defendant may be summoned at any time before the 
 rising of the court on the return day of tlie scire facias (d) ; if 
 made on that day after the rising of the court, the summons is 
 bad(e). Whether nihil or scire feci be returned, it is said that 
 the alias sci.fa. in the first case, or the scire facias in the latter, 
 must lie in the sheriff's office the last four days, exclusive of 
 the day of lodging the writ and the return, in order to fix the 
 bail(/). 
 
 Attachments for contempt are so far considered in the nature Attachment 
 of civil process, that they cannot be executed on a Sunday {g). '"■" 'o"'*™?*- 
 Nor will such process lie against a peer (Ji) or member of parlia- 
 ment (i). 
 
 The sheriff's duty on such an attachment is to take the sheriff's duty 
 defendant, and keep him in custody if he does not give bail, so 
 that he may have him in court at the return of the writ, to 
 answer interrogatories ; for that reason an attachment is con- 
 Co) R. E. 5 Geo. 2, r. 3. Smith, 1 Bar. & Aid. 528 ; Dicas v. 
 \h) See form, Append. Perry, 2 D. & R. 869. But Whit 
 (r) See form, id. ibid. Monday, Tuesday, and Wednesday, 
 {d) Clarke v. Bradshaw, 1 East, being days on which search might be 
 88 ; see also Lewis v. Pyne, 1 C. & made, are to be reckoned, Armitage v. 
 iVJ. 771 ; 2 Dowl. 133, S. C. Risbye, 5 A. & E. 76. 
 
 (e) Webb v. Harvey, 2 T. R. 757, {g) Rex v. Myers, 1 T. R. 266 ; 
 
 explained in 1 East, 88. Waison on Awards, 183. 
 
 (/) Williams v. Mason, note, 1 {h) Walker v. Earl Grosvenor, 7 
 
 East, 89; Wilson r. Far, 4 B. & Aid. T.R.J 71. 
 
 537; Bell v. Jackson, 4 T. R. 663. (j) Catmur v. Sir E. Knatchbuli, 
 
 An intervening Sunday is not reckon- ih. 448. 
 ed one of the four days. Howard v. 
 
 on attach- 
 ment.
 
 454 SCIRE FACIAS, ATTACHMENTS, ETC. 
 
 CHAP. XXI. sidered in the nature of mesne process, so that if the sheriff 
 arrest the defendant, and afterwards allow him to go at large, 
 but has him at the return of the writ, the sheriff is not liable 
 for an escape (k). On an attachment issuing out of chancery 
 for contempt, it has frequently been decided that the sheriff 
 may, if he please, take bail, and such security, although not 
 within the stat. 23 Hen. 6, c. 4, is good at common law(/). 
 So on an attachment issuing out of a court of law, notwithstand- 
 ing conflicting decisions, it would appear that bail might be 
 taken (m) ; and such has been the practice for some time 
 back(n). But although a bail bond taken on an attachment is 
 good, yet it is perfectly optional with a sheriff whether he will 
 take bail in such case or not (o). And such a bond is not as- 
 signable as a bail bond under the stat. 4 Ann. c. 16, s. 20 (p)- 
 
 Poundage on It would appear that the sheriff is not entitled to poundage 
 on money received by him in executing an attachment (<-/). 
 
 The sheriff cannot be compelled summarily to pay into court 
 money received by him under an attachment for non-payment 
 of money (r). 
 
 If a person committed for contempt become afterwards 
 entitled to his discharge, notice of his being so entitled must be 
 given to the sheriff before the sheriff will be answerable for his 
 detention (s). 
 
 (k) Lewis v. Morland, 2 Bar. & (n) Per Lens, Serjt. arg., 6 Taunt. 
 
 Aid. 56. 571. 
 
 (0 Morris v. Hayward, 6 Taunt. (o) Studd i;. Acton, 1 H. BL 468 ; 
 
 569, S. C. ; 2 Marsh. 280 ; Danby v. per Bayley, J., 2 Bar. & Aid. 63. 
 
 Lawson, Prec. in Chan. 110, S. C; (p) Miller v. Palfreyman, 4 B. & 
 
 1 Eq. Cas. Abr. 350, pi. 4 ; Anon. 2 Adol. 146. 
 
 Atk. 107. (q) Rex v. Palmer, 2 East, 411; 
 
 (m) Rex V. Dawes, 1 Ld. Raym. Rex v. Sheriff of Devon, 3 Dowl. 10. 
 
 722; Salk. 608,S.C.; 2 Bar. & Aid. (r) Rex v. Sheriff of Devon, 3 
 
 63 ; but see Field v. Workhouse, Dowl. 10. 
 
 Com. Rep. 264; Phelps v. Barrett, 4 (s) Smith v. Egginlon, 7 A. & E. 
 
 Price, 23; contra. 167.
 
 APPENDIX. 
 
 CHAP. II.— Sect. 2. 
 
 Schedule of the Oaths to be taken hy the Sheriff, and which Schedule is 
 annexed to the Return of the Jbedinius. 
 
 I, A. B., do sincerely promise and swear, that I will be faithful, and 
 bear true allegiance to her Majesty Queen Victoria. 
 
 So help me God. 
 
 I, A. B., do swear, that I do, from my heart, abhor, detest and abjure, 
 as impious and heretical, that damnable doctrine and position, that princes 
 exconnnunicated or deprived by the Pope, or any authority from the See 
 of Rome, may be deposed or murthered by their subjects, or any other 
 whatsoever. And I do declare, that no foreign prince, person, prelate, 
 state or potentate hath or ought to have any jurisdiction, power, supe- 
 riority, pre-eminence or authority, ecclesiastical or spiritual, within this 
 realm. So help me God. 
 
 Oath of Office of the Sheriffs of Wales. 
 
 Ye shall swear that well and truly ye will serve the queen's majesty in 
 the office of sheriff of the county of M., in Wales, and do the queen's 
 profits in all things that belong to you to do by way of your office, as 
 far forth as you can or may. Ye shall truly keep the queen's rights, and 
 all that belong to the crown. Ye shall not assent to decrease, to lessen 
 or to concealment of the queen's rights or of her franchises. And when- 
 soever ye shall have knowledge that the queen's rights, or the rights of 
 her crown, be concealed or withdrawn, be it in lands, rents, franchises, 
 suits or any other thing, ye shall do your power to make them to be re- 
 stored to the queen again ; and if ye may not do it yourself, ye shall cer- 
 tify the queen, or some of her coimcil, thereof, such as ye hold for certain, 
 will say it unto the queen. Ye shall not respite the queen's debts for 
 any gift or favour, when ye may raise the same without great grievance 
 to the debtors. Ye shall truly and righteously treat the people of your 
 sheriffwick, and do right as well to poor as to rich, in all things that be- 
 longeth to your office. Ye shall do no wrong to any man for any gift or 
 other behest, or promise of goods, for favour or hate. Ye shall disturb 
 no man's right. Ye shall truly acquit all those of whom ye shall any 
 thing receive of the queen's debts. Ye shall nothing take whereby the 
 queen may lose, or whereby that right may be disturbed, letted, or the 
 queen's debts delayed. Ye shall truly return and truly serve all the 
 queen's writs, as far forth as it is in your cunning. Ye shall none have 
 to be your under-sheriff of any of the sheriff's clerks of the last year 
 past. Ye shall take no bailiff into your service but such as ye will answer 
 for. Ye shall make each of your bailiffs to make such oath as ye make
 
 456 APPENDIX. 
 
 CHAP. 11. yourself, in that that belongeth to their occupation. Ye shall receive no 
 SECT. II. writ, by you or any of yours, unsealed, or any sealed under the seal of 
 any justice saving justice in eyre, of justice assigned in the same shire 
 where ye be sheriff' in, or other justices having power and authority to 
 make any writs unto you by the laws of the land, or of justice of New- 
 gate. Ye shall make your bailiffs of the true and sufficient men of the 
 county. Ye shall not let your sheriffwick, nor any bailiwick thereof, to 
 farm to any man. Ye shall truly set and return reasonable and due issues 
 of them that be within your bailiwick, after their estate and their haviour; 
 and make your panels yourself of such persons as be most meet, most 
 sufficient, and not suspected nor procured, as is ordained by the statutes; 
 and over this, in eschewing and i-estraint of the manslaughters, robberies 
 and other manifold grievous offences that be done daily, namely, by such 
 as name themselves soldiers, and other vagrant persons, which increase in 
 number and multiply, so that the queen's subjects may not surely ride 
 nor go to do such things as they have to do, to their intolerable hurt and 
 hindrance. Ye shall truly and effectually, with all diligence possible to 
 your power, execute the statutes as the statutes of Winchester and of 
 vagabonds. These things ye shall well and truly observe and keep. 
 
 So help you God. 
 
 Recognizance of Sheriffs of Wales. 
 
 2s. stamp. The condition of this recognizance is such, that whereas the above 
 
 bound A. B. is appointed sheriff of the county of N. ; If the said A. B., 
 or he being dead, his heirs, executors or administrators do personally ap- 
 pear before the queen's majesty's auditors for her revenue of her high- 
 ness's crown there, or her deputy lor the time being, at such time and place 
 as the next audit shall be holden and kept for the said revenue, and then 
 and there make and yield a true and lawful account to the queen's ma- 
 jesty, her heirs or successors, before the said auditor or his deputy, of the 
 issues and profits of the said office, and of all things belonging to the 
 queen's majesty which shall come to his hands, or to the hands of the 
 under-sheriff or any of his bailiffs, ministers or servants, or which he 
 may or ought lawfully to levy or receive before the time of his said ac- 
 count, or which he may reasonably be charged with, to the queen's use, 
 by reason of the said office, or of any process to him directed, before his 
 said account, without any manner of concealment or delay. And do also, 
 immediately upon determination of the same accounts, and before his or 
 their departui'e from the same audit, pay or cause to be paid to the hands of 
 the queen's majesty's receiver-general of the said revenue or his deputy 
 for the time being, to her highness's use, her heirs and successors, all and 
 every such sum and sums of money as shall be due to her majesty by him 
 or them, by reason of and upon the same account. And also do and 
 shall observe, perform and fulfil all and every such articles and ordinances 
 concerning the sheriffs of the counties of Wales, as were taken the twenty- 
 fifth day of November, anno Domini one thousand five hundred and fifty- 
 nine, and remain of record in her majesty's Court of Exchequer; which, 
 on the part of him, his executors, administrators or assigns, are or 
 ought to be observed, performed and done according to the full and true 
 intent and meaning of the same. And also if the said sheriff do assign 
 and appoint, by his sufficient warrant, his able or sufficient attorney or 
 deputy in every of her majesty's Courts of Chancery, the Queen's Bench,
 
 APPENDIX. 4-57 
 
 the Common Pleas and Exchequer at Westminster and elsewhere, where- chap. ij. 
 soever the said courts shall happen to be kept ; which shall attend the sect, ii. 
 said courts so long as they shall be open and sitting, and receive, open 
 and return all writs, process and commandments which shall be directed 
 to the same sheriff or his deputy, in any and every of the said courts, so 
 long as he shall be sheriff of the said county, according to the statute in 
 that behalf made, and as the sheriff of England use and ought to do. 
 And further, if the said A. B., so long as he shall be sheriff of the said 
 county of N., do or shall, by himself or his sufficient deputy in that be- 
 half, to be allowed by her majesty's justices of assize for the said county, 
 not only well and sufficiently serve and execute all processes, mandates 
 and commandments which to him shall be directed, awarded or com- 
 manded by the said court; and make full and perfect returns of the same, 
 according to the tenor and true purport of the same processes, mandates 
 and commandments ; but also do and shall give their personal and ready 
 attendance at and before the said court, for the better service of her majesty, 
 her heirs or successors, by the said sheriff or his deputy, to be had and 
 done as often and when as he the said sheriff or his deputy shall be re- 
 quired or commanded thereunto by the said court. And lastly, if the said 
 A. B. do and shall, during all the time of the said shrievalty, by himself 
 or his sufficient deputy, obey and observe, make, do and perform all such 
 attendances, offices, services, acts and things for and concerning the said 
 office of shrievalty, as other sheriffs of the said counties of England do 
 or ought, by reason of the like offices of shrievalty, to do and perform, 
 and as in that behalf shall appertain : That then this present recognizance 
 to be void and of no effect; else to remain in full force and virtue. 
 
 CHAP. II.- Sect. 3. 
 
 Letter of Attorney to receive the Gaol, 4c. 
 
 To all to whom these presents shall come, I, A. B., of , in the 
 
 county of N., esquire, present sheriff of the said county, do by these 
 presents appoint, depute, authorize and empower C. D., of the town 
 
 of , gent., E. F., of and G. H., of , gent., or any one of 
 
 them, for me, and in my stead and place, to receive and take the gaol of 
 the said county of N., with all the prisoners therein, and the rolls, writs, 
 memorandums and all other matters and things to the office of sheriff of 
 the said county of N. belonging, to and from D. P., esq., late sheriff of 
 the said county of N., or of or from his late under-sheriff, or such other 
 person or persons as he shall lawfully authorize and empower to deliver 
 the same. And I do hereby authorize and empower C. D., E. F. and 
 G. H., or any of them, to receive from the said late sheriff or his late un- 
 der-sheriff, or such other person or persons as he shall for that purpose 
 lawfully authorize and appoint, an indenture made or to be made between 
 the said late sheriff and me in that behalf; and likewise for me and in 
 my place and stead to set my name to the counterpart of the said inden- 
 ture, and to seal and as my act and deed to deliver the same, and to do 
 and execute whatsoever else may be necessary to be done and executed 
 for me in this behalf. In witness whereof I have hereunto set my hand 
 
 and seal this day of , in the year of our Lord . 
 
 Sealed and delivered, &c. A. B. {Seal of office.)
 
 458 APPENDIX. 
 
 CHAP. II. 
 SECT. HI. 
 
 Letter of Attorney to deliver the Gaol. 
 
 To all to whom these presents shall come, I, D. P., of , in the 
 
 county of N., esquire, late sheriff of the said county, do by these presents 
 
 appoint, depute, authorize and empower , of , gent., {naming 
 
 three or four') or any of them, for me, and in my stead and place, to de- 
 liver the gaol of the said county of N., with all the prisoners therein, and 
 all writs, memorandums, and other matters and things to the office of sheriff 
 
 of the said county belonging, to A. B., of , in the said county of N., 
 
 esq., present sheriff of the said county, or to such person or persons as 
 he hath authorized or shall authorize to receive the same ; And I do 
 
 hereby authorize and empower the said and , or any of them, 
 
 to set my name to an indenture between me and the said present sheriff, 
 and to seal and as my act and deed deliver the same, and likewise to re- 
 ceive for me an indenture from the said present sheriff, or such person or 
 persons as he hath appointed or shall appoint for that purpose. In wit- 
 ness whereof I have hereunto set my hand and seal this day of 
 
 , 18—. 
 
 Signed and delivered, &c. D. P. {Seal of office.) 
 
 CHAP. III.— Sect. 1. 
 
 Ije.tter of Attorney appointing Replevin Clerks {a). 
 
 N. (to loit). Know all men by these presents, that I, A. B., esq., 
 sheriff of the county of N., have constituted and appointed, and by these 
 presents do constitute and appoint W. H. of , in the county of N., 
 
 gent., one of my deputies for making or granting Replevins within the said 
 county of N., pursuant to the statute in such case made and provided. 
 
 In witness whereof J have hereunto set my hand and seal this day of 
 
 , in the year . 
 
 A. B., esq., sheriff. {Seal of office.) 
 Sealed and delivered ) 
 in the presence of . S 
 
 Letter of Attorney appointing Deputies to hold the County Court. 
 
 To all to whom these presents shall come, I, A. B. of , in the 
 
 county of N., esq., send greeting : Whereas I, the said A. B., by virtue 
 of her Majesty's letters patent bearing date the 29th day of April last past, 
 was appointed and took upon me the office of sheriff, of and for the said 
 county of N. Now know ye, that I, the said A. B., upon the special trust 
 and confidence I have and repose in G. H. of A., in the said county, gent, 
 and T. K. of the same place, gent., have (and at the special instance and 
 
 request of C. D. of the town of , gent., whom I have constituted and 
 
 appointed my under-sheriff) nominated, constituted, and appointed, 
 and by these presents do nominate, constitute, and appoint the said 
 G. H. and T. K. and either of them severally and respectively assistants 
 to and under me the said A. B. and the said C. D. my under-sheriff, to 
 
 (h) The appointment may be made by entry in the county court book, ac- 
 cording to the form, ante, p. 29, note (i).
 
 APPENDIX. 
 
 459 
 
 sit, preside, and hold my county courts, and to do and execute what to chap. iii. 
 the said office of holding the said courts shall appertain, when they or sect , i. 
 either of them shall hold the said courts in the absence of the said C. D. ; 
 and I do hereby ratify and confirm what they the said G. H. and T. K., 
 and either of them, shall lawfully do or cause to be done in and about the 
 premises by virtue of these presents. In witness whereof I have here- 
 unto set my hand and seal the 3rd day of June, in the year of our Lord, 
 1848. 
 
 A. B,, esq., sheriif. {Seal of' office.) 
 Sealed and delivei-ed, &c. 
 
 Sect. 2. 
 
 Appointment of Under-sheriff. 
 
 To all to whom these presents shall come, I, A. B of , in the 
 
 county of N., esq., send greeting: Whereas I, the said A B., have 
 been appointed during her majesty's will and pleasure high sheriff of the 
 county of N., by her majesty's warrant of appointment bearing date 
 the day of a. d. . Now know ye, that I have nomi- 
 nated, constituted and appointed, and by these presents do nominate, 
 
 constitute and appoint, C. D. of , in the said county, gentleman, my 
 
 under-sheriff of and for the said county, and do depute and authorize 
 him to act, do, and execute for me and in my stead all things to the said 
 office of under-sheriff in anywise belonging or appertaining. Dated this 
 day of , in the year of our Lord . A. B. 
 
 Form of Covenants between Under- Sheriff and Sheriff. 
 
 This indenture, made the second day of February, in the year Deed Stamp. 
 
 of the reign of her Majesty, Queen Victoria, and in the year of our Lord 
 
 • , between A. B. of G., in the county of M., esq., of the one part ; 
 
 and C. D., &c., gentleman, of the other part; witnesseth, that the said 
 A. B., being elected, and having this day taken upon himself the office of 
 sheriff of the county of M. ; in consequence of the trust and confidence 
 which he hath in the said C. D., and that he will take care that the office 
 of under-sheriff of the said county be honestly, uprightly, and duly dis- 
 charged ; and for other the considerations hereinafter mentioned, he, the 
 said A. B , hath deputed and ordained, and by these presents doth depute 
 and ordain the C. D. to be his under-sheriff of the said county of M. : And 
 doth authorize, appoint, and empower him to sign, seal, and execute, and 
 as the act and deed of the said sheriff to deliver, all assignments of bail- 
 bonds, bills of sale, assignments of goods and chattels taken in execution : 
 And also to take inquisitions upon process directed to the said sheriff ; to 
 make out precepts for the election of members to serve in parliament ; to 
 preside or to assist in the county courts, and upon the hustings, at the 
 election of knights of the shire ; to appoint county clerks, replevin clerks, 
 and bailiffs ; to receive rules for the returning of writs ; and give receipts 
 and discharges for all monies whatever, to be received or collected in the 
 office of sheriff of the said county; to sign the name of the said sheriff to 
 all certificates, and other instruments and writings requiring the same ; 
 and to do all other acts in the name of the said A. B., as sheriff of the
 
 4G0 APPENDIX. 
 
 CHAP. III. county of M., necessary and requisite in the due execution of the said 
 SECT. II. office. In consideration whereof the said C. D., and the said E. F., as 
 surety for the said C. D., for themselves, their heirs, executors, and admi- 
 nistrators, do hereby covenant, promise, and agree to and witli the said 
 A. B., his executors and administrators, in manner following, that is to 
 say : that he, the said C. D., shall and will v;ell and sufficiently perform 
 the office of under-sheriff during the shrievalty of the said A. B. ; and in 
 that capacity summon and return all juries and inquests to be impanelled 
 before her majesty's justices of assize or of the peace, or upon any issue 
 whatsoever to be tried, or inquisition to be taken, within the said county ; 
 and also grant warrants on, and execute, or cause to be executed, all writs, 
 process, precepts, mandates, and warrants, to be directed to the said 
 sheriff from the several courts of law or equity, or other competent autho- 
 rity ; and make due and sufficient inquisitions and returns thereon, as by 
 law is required ; and shall and will save harmless, and keep indemnified, 
 the said sheriff, his heirs, executors, and administrators, and his and their 
 goods and chattels, lands and tenements, of and from all and all manner 
 of action and actions, cause and causes of actions, suits, fines, and amer- 
 ciaments, contempts and forfeitures, and all other charges and incum- 
 brances whatsoever, which shall or may happen to be assessed or imposed 
 upon the said A. B. as sheriff, by reason of the executing or not executing, 
 returning or not returning, or the misreturning any such writs, process, 
 precept, mandate, or warrant, or touching or concerning the same, or the 
 summoning or impanelling the juries as aforesaid ; and also of and from 
 any escapes, rescues, or the letting any prisoner voluntarily or negligently 
 go at large; or the taking of insufficient bail, or the refusing to take bail, 
 or for the making or not making any assignments of a bail bond or bonds ; 
 or the not filing any warrant of attorney in any of the courts of record 
 at Westminster or elsewhere ; or for or by reason of any negligence, mis- 
 feasance, nonfeasance, abuse, omission, delay, or contempt, or any other 
 cause or thing whatsoever, that should or ought to be done by the said 
 under-sheriff or agent, or by the clerks, bailiffs, or servants to be em- 
 ployed, concerning the said office : And also shall and will upon demand 
 produce and show, or deliver to the said sheriff, a true inventory or account 
 of the different writs in the office of the said sheriff, and what has been 
 done thereon respectively ; and that it shall be in the power of the said 
 sheriff, upon complaint, to discharge any bailiff or other person in the 
 service of the said sheriff, and to appoint another in his stead for the re- 
 mainder of the shrievalty : And further, that the said under-sheriff shall, 
 from time to time, give due notice to the said sheriff of such personal 
 attendance as shall be requisite to be made by him ; and shall attend on, 
 and assist him thereat, and be aiding and assisting in raising and levying 
 such force within the said county as the sheriff shall be enjoined to raise; 
 and from time to time give his personal attendance on the said sheriff 
 when required, and collect and levy the post fines, forfeitures, profits, ser- 
 vices, fee farm rents, pipe silver, exchequer silver, goods of traitors, felons, 
 and outlaws, and all taxes, levies, charges, or impositions, to the use of 
 her majesty, by virtue of any writ or process whatsoever, lawfully issued 
 for that purpose, and directed to the said sheriff; and shall duly account 
 for and pay the same to her said majesty's use, and obtain acquitances 
 from the proper offices, and deliver the same to the sheriff when thereunto 
 required: And shall duly pass the sheriff's accounts before the barons 
 and officers of the Exchequer, (or before her majesty's auditor in Wales) ; 
 and obtain a quietus for the same, so that the lands and tenements, goods
 
 APPENDIX. 
 
 461 
 
 and chattels of the said sheriff may stand fully acquitted : And shall and chap. 
 will bear and pay such costs, charges, and expenses, as shall attend the sect. 
 execution of the duties of the said office (except the costs and charges of 
 the recognizance and patent), the assignment of prisoners, and appoint- 
 ment of the under-sheriff; the seal of office and deed of covenant; the 
 advertising the assizes ; the expenses attending the trumpeters and javelin 
 men, and their clothes, and the clothes of the officers and bailiffs ; the fees 
 to the chaplain and inferior officers ; the calendar of prisoners, the exe- 
 cuting prisoners, the judges' lodgings, court-keepers and tavern expenses 
 at the assizes ; and the expenses of the under-sheriff, deputy, and agent, 
 to, at, and from the assizes ; also the convicts' bread money, and all the 
 expenses of an election of members or coroners ; also the charges of 
 passing the sheriff's accounts at the Exchequer (or before her majesty's 
 auditor in Wales) ; and obtaining the quietus and the fee-farm rents, if 
 any, charged to the sheriffs, and not recoverable ; and the personal ex- 
 penses of the under-sheriff and deputy in attending any public meeting 
 within the county (which are to be paid by the sheriff) ; and cause to be 
 executed and punished all such persons as shall be convicted or attainted, 
 according to his or her sentence ; and well and faithfully do, execute and 
 perform all and every act, matter and thing belonging to the said office 
 of under-sheriff. And the said A. B. doth hereby, for himself, his heirs, 
 executors, and administi-ators, covenant, promise, and agree to and with 
 the said C. D., his respective executors and administrators, in manner 
 following, that is to say : that the bonds or obligations to be entered into 
 or given to the said sheriff" by the gaoler and bailiffs, or by any person or 
 persons to be arrested during the said shrievalty, shall be considered as 
 well for the indemnity of the said undei'-sheriff or agent, as of the said 
 sheriff: and that the said under-sheriff, performing the aforesaid cove- 
 nants, shall have and enjoy the said office of under-sheriff during the 
 shrievalty of the said A. B. ; and keep, by himself or deputy, the courts 
 by law established in the said county ; and have and take all lawful fees, 
 dues, profits, and emoluments whatsoever, belonging to the said office of 
 sheriff. Provided, nevertheless, that nothing herein contained shall pre- 
 clude the said sheriff from receiving the allowances for judges' lodgings, 
 and patent money, and also for bread money and the execution of con- 
 victs, allowed in the bill of cravings to his own use. In witness whei-eof 
 the said parties to these presents have hereunto set their hands and seals, 
 the day and year first above written. 
 Signed, sealed, &c. 
 
 Bond of Indemnity from IJnder-Sheriff's Deputy or Agent to the 
 Under-Sheriff", where the Under-Sheriff appoints a Deputy. 
 
 Know all men by these presents, that I, E. F., am held and firmly 
 bound to C. D., under-sheriff to A. B., esq., high sheriff of the county of 
 
 N., in the penal sum of pounds of good and lawful money of Great 
 
 Britain, to be paid to the said C. D., or his certain attorney, executors, 
 administrators or assigns, for which payment to be well and faithfully 
 made, I bind myself and my heirs, executors and administrators, firmly 
 
 by these presents, sealed with my seal. Dated this day of in 
 
 the year of our Lord one thousand eight hundred and . 
 
 Whereas the above-named C. D., under-sheriff of the county of N., 
 hath constituted and appointed the above-named E. F. to be his deputy
 
 462 APPENDIX. 
 
 CHAP. III. ^^^ agent in the said office ; and in such appointment it was agreed that 
 sect! II.' the said E. F. should enter into tlie indemnity hereinafter mentioned. 
 
 Now the condition of the above-written obhgation is such, that if the 
 
 said E. F., his heirs, executors and administrators, and every or any of 
 them, do and shall, from time to time, and at all times hereafter, save 
 harmless, and keep indemnified, A. B. esq., sheriff" of the said county of 
 N., and also the said C. D., his under-sheriff, and each of them, their 
 and each of their heirs, executors and administrators, goods and chattels, 
 lands and tenements, touching and concerning the return and execution 
 of all process, writs and mandates, of what nature soever they be, as shall 
 or may be directed to the sheriff of the county aforesaid, and shall be 
 brought and delivered to the said E. F. during the time the said A. B. 
 shall be sheriff of the said county; and of, from and against all and all 
 manner of fines, issues and amerciaments, actions, suits and prosecutions, 
 costs, charges, damages and expenses, which the said sheriff", or the said 
 C. D., or either of them, their or either of their executors or administra- 
 tors, shall or may pay, bear, sustain or be put unto, or which shall or 
 may be brought, commenced, or prosecuted against them, either or any 
 of them, for or by reason of the not returning, wrongfully executing, or 
 misreturning, or detaining in their hands, any writ or writs, process or 
 processes, or mandates whatsoever : And also if he, the said E. F., his 
 executors or administrators, shall and do, in due time, and from time to 
 time, make a true and just account, and due satisfaction and payment of 
 all and singular the sum and sums of money, which shall be received by 
 the said E. F., by virtue of any writ, process, or other mandate, directed 
 to the said sheriff; or for fees, dues, perquisites or emoluments, or other- 
 wise, as such deputy or agent as aforesaid, during the time the said A. B. 
 shall continue sheriff, or the said C. D. under-sheriff of the said county: 
 And also if the said E. F. shall and do, upon demand, produce and show, 
 or deliver to the said sheriff or under-sheriff, a true inventory or account 
 of the different writs and processes in the office of the said sheriff, and 
 what has been done thereon respectively : And also if the said E. F., his 
 lieirs, executors or administrators, or any of them, shall and do save 
 harmless, and keep indemnified, the said sheriff and under-sheriff, and 
 each of them, their and each of their heirs, executors and administrators 
 goods and chattels, lands and tenements, of, from and against all 
 actions, suits, prosecutions, costs, charges, damages, and expenses, which 
 they or either of them, their or either of their heirs, executors, or admi- 
 nistrators, shall or may bear, sustain, or be put unto, of or concerning all 
 or any such monies which shall be received by the said E. F., and not 
 paid or accounted for as aforesaid : then the above-written obligation to 
 be void, but otherwise, and on failure of performance of all and every, or 
 any of the said conditions, stipulations, and agreements, the same is to 
 be and remain in full force and virtue. 
 
 Signed, sealed, and delivered, 
 by the above-named E. F 
 in the presence of 
 
 'J
 
 APPENDIX. 463 
 
 CHAP. in. 
 
 Sect. 3, sect. m. 
 
 Bond of Indemnity from Bailiffs and their Sureties. 
 
 STAMP. 
 
 (h) 
 
 Know all men by these presents, that we C. D. of 
 
 and E. F. of are held and firmly bound to A. B. Esq., 
 
 High Sheriff of the county of C, in the sum of £ ■ to be 
 
 paid to the said A. B., or to his certain attorney, executors, 
 administrators, or assigns, for which payment to be well and truly made 
 we bind ourselves and each of us, our and each of our heirs, executors, 
 and administrators, and eveiy of them, jointly and severally by these 
 presents. Dated, &c. 
 
 Whereas the said sheriff, at the request of the said C. D. and of his 
 surety the said E. F., hath nominated and appointed the said C. D. to be 
 one of the bailiffs of the said sheriff during the pleasure of the said sheriff, 
 permitting him to receive to his own use all lawful fees usually received 
 
 by sheriff's bailiffs in the said county of , save and except the 
 
 poundage and such other fees and profits on writs of execution and extent 
 
 as have been usually received by the sheriff of the said county of , 
 
 and all other fees and emoluments to the said sheriff or his under-sheriff 
 belonging : and whereas the said E. F., in consideration of the nomina- 
 tion and appointment of the said C. D. as aforesaid, hath consented and 
 agreed to execute such bond or obligation as is above written, with such 
 condition as is hereinafter expressed and contained : Now therefore the 
 condition of the above-written obligation is such, that if the said bailiff 
 shall duly execute all warrants or mandates to him directed by the said 
 sheriff, under-sheriff, or deputies, or any of them, in the name of the 
 said sheriff, and shall duly make a true and sufficient return in writing to 
 all warrants which shall come to his hands as such bailiff for execution : 
 and also if the said bailiff shall and will take sufficient pledges and 
 sureties in replevin, and shall and will deliver up to the said sheriff or 
 rmder-sheriff all bonds and other securities belonging to the said sheriff 
 within two days after the same shall be taken ; and also if the said 
 bailiff shall not suffer any escape, or permit any prisoner in his custody 
 as bailiff aforesaid to go at large without a lawful authority, nor permit 
 any prisoner to go at large who shall be left with him or at his house for 
 safe custody by the said sheriff or any other bailiff, without the said sheriff 
 or his order in writing first had and obtained ; and also if the said bailiff 
 shall give day by day instructions in writing for the sheriff's return to 
 each and every writ and process upon which any warrant shall have been 
 granted to him, or under or in respect of or by colour of which he shall 
 in any way act or assume to act as bailiff to the said sheriff, whether such 
 writ or writs shall have been executed or not; and also if the said bailiff 
 shall duly execute all writs delivered to him for execution, whether from 
 a court of law or equity ; and also if the said bailiff shall make a true 
 return and inventory of all goods and chattels seized in execution by him 
 as bailiff to tiie said sheriff, and if he shall before removal thereof pay to 
 the landlord the rent in arrear, not exceeding one year, and all taxes due 
 in respect thereof, pursuant to the statute, and shall indemnify the said 
 sheriff on account of any mistake or default relating thereto; and also if 
 the said bailiff shall pay to the said sheriff or under-sheriff the considera- 
 tion or purchase-money mentioned in every bill of sale or assignment 
 
 (6) The stamp will depend on the sum mentioned in the bond.
 
 464 APPENDIX. 
 
 CHAP. III. executed by the said sheriff or under-sheriff at the request of the said 
 SECT. in. bailiff, notwithstanding the acknowledgment of the receipt thereof by the 
 said sheriff contained in any such bill of sale or assignment; and also 
 if the said bailiff shall and will forthwith pay to the said slieriff or under- 
 sheriff all monies received by the said bailiff on any arrest or levy by 
 him made, or with which he shall be entrusted for the said sheriff, with- 
 out deduction ; and also if the said bailiff shall in all things truly and 
 honestly demean and behave himself as bailiff aforesaid, and faithfully 
 and diligently serve and attend the said sheriff, his under-sheriff and 
 their deputies, and in due and lawful manner all their and every of their 
 lawful commands or directions touching any manner of service incident or 
 belonging to the said office of sheriff shall and will execute and perform ; 
 and also if the said bailiff and his sureties, some or one of them, shall 
 indemnify and save harmless the said sheriff and his under-sheriff from 
 all damages, loss, costs, and charges which they or either of them shall or 
 may suffei-, sustain, or be put unto, or be liable to suffer, sustain, or be put 
 unto, for or by reason of the nonfeazance, malfeazance, or misfeazance of 
 the said bailiff", or for or by reason of the payment of any money by the 
 said sheriff, under-sheriff, or deputies to any person or persons, or by reason 
 of any return to any writ or process made by the said sheriff, under-sheriff, 
 or deputies, at the request of the said bailiff; and also if the said bailiff 
 and his said sureties, some or one of them, their or some one of their heirs, 
 executors, or administrators, shall and will save harmless and indemnified 
 the said sheriff and under-sheriff, their and each of their executors and 
 administrators, from and against all actions, suits, fines, and amercia- 
 ments, penalties, contempts, forfeitures, loss, costs, charges, damages, and 
 expenses which may be commenced, prosecuted, imposed, or set upon 
 them or either of them, or which they or any or either of them may suffer, 
 pay, or be liable unto, for or by reason of any extortion or escape hap- 
 pening by the act or default of the said bailiff, or for or by reason of the 
 executing, not executing, returning, not returning, or mis-return of any 
 writ, process, mandate, precept, or warrant, the not taking bail or pledges, 
 taking insufficient bail or pledges, the not bringing into court the body 
 of any defendant, or any other cause whatsoever, happening by or arising 
 from the act or omission of the said bailiff; then the above-written obliga- 
 tion shall be void, otherwise to be and remain in full force and virtue. 
 
 Bailiff's Oath. 
 
 I, A. B., shall not use or exercise the office of bailiff 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 of, any manner of fee or i-eward 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.
 
 APPENDIX. 
 
 465 
 
 CHAP. Ill 
 
 Indorsement on a Writ, when a Bailiff is specially appointed. Such sect. ni. 
 Indorsement should he signed by the Plaintiff's Attorney, 
 
 Whereas the sheriff of N. hath, at our request, directed the warrant 
 upon the witliin writ to J. S. and I. M., as special bailiffs for executing 
 the same ; in consideration thereof, we do hereby promise to save harm- 
 less and keep indemnified the said sheriff, his under-sheriff, and clerk, of and 
 from all costs, troubles, and charges, that shall or may happen by reason 
 of his or their directing the said warrant to the said special bailiffs. As 
 
 witness our hands, the day of . 
 
 A. and B., plaintiff's attornies. 
 
 The same, in another form. 
 
 Mr. Sheriff, — Please grant your wai-rant on this writ, directed to 
 , as special bailiff, at the instance and peril of the plaintiff; and 
 
 for so doing this shall be your indemnity 
 
 Yours, 
 A. and B., attornies for the plaintiff. 
 
 Form of Warrant to a Special Bailiff. 
 fCoratnencernent the same as other warrants.] 
 "To A. B., my bailiff for this time only, at the instance and peril of 
 the plaintiff, and not otherwise, specially appointed, greeting," &c. 
 
 Sect. 4. 
 
 Security from Gaoler, — Form of Bond. 
 
 Know all men by these presents, that we, J. K., gentleman, keeper of 
 
 the county gaol of N. (being in the of in the said county), 
 
 C. D. of, &c., upholsterer, and E, F. of, &c., farmer, are held and firmly 
 bound unto A. B. of, &c., esquire, sheriff of the county of N. aforesaid, 
 in 3,000/. (c), of good and lawful money of Great Britain, to be paid to 
 the said sheriff, or his certain attorney, executors, administrators or 
 assigns : for the true payment whereof we bind ourselves, jointly and 
 severally, our and each of our heirs, executors and administrators, firmly 
 
 by these presents. Sealed with our seals. Dated this day of 
 
 , in the year of the reign, &c., and in the year of our 
 
 Lord, &c. 
 
 Whereas the above-named A. B. being by the queen's most excellent 
 majesty appointed high sheriff for the county of N. aforesaid, hath, at 
 the instance and request of the above-bounden J. K., authorized, nomi- 
 nated and appointed the said J. K. to be his gaoler, or keeper of the 
 gaol in and for the said county of N., for and during all such time as 
 
 (c) This, as well as the penalty of the bailiff's bonds, must depend upon 
 circumstances, as the size of the county, &c. 
 
 H H
 
 466 APPENDIX. 
 
 CHAP. III. the said A. B. shall be and continue high sheriff of the county of N. 
 SECT. IV. aforesaid, with full power and authority to execute the said office, in as 
 large and ample a manner as any former gaoler or gaol-keeper have or 
 hath heretofore lawfully executed the same : Now the condition of this 
 obligation is such, that if the said J. K. do and shall from time to time, 
 and at all times so long as the said A. B. shall continue high sheriff of 
 the said county, and until the next succeeding slieriff shall take delivery 
 of the said gaol, keep in safe custody, as well all such prisoner and 
 prisoners as are now in the said county gaol, or in the custody of the 
 keeper of tlie said gaol for I. M., esquire, the last preceding high sheriff 
 of the said county, and delivered, or which shall be delivered over by the 
 said I. M. or his deputy, by indenture under his or his deputy's hand 
 and seal, to him the said A. B. ; and by him the said A. B. delivered, or 
 which shall be delivered, into the custody and keeping of the said J. K., 
 as keeper of the said gaol, for him the said A. B.; as also all and every 
 prisoner or prisoners, which at any time or times hereafter shall be com- 
 mitted, sent, or delivered to the said J. K., his servants, agents, deputy or 
 deputies, upon or by virtue of any warrant or warrants, precept or precepts, 
 or commandment whatsoever, or by or from the said sheriff, his under- 
 sheriff, deputy or deputies, or other person employed and entrusted by 
 him to manage or execute the office of sheriff for the county of N. for the 
 time being, or from or by any of her majesty's justices of the peace, 
 justice or justices of assize, of nisi prius, gaol delivery, or OT/er and ter- 
 mine?; or of or from any other person or persons having lawful power 
 and authority in that behalf: And also, if the said J. K. do give his 
 attendance upon the said sheriff at the assizes and general gaol delivery, 
 and general quarter sessions of the peace, to be holden in and for the said 
 county; and safely convey and conduct to the assizes, general gaol 
 delivery, general quarter sessions of the peace, or any other lawful court 
 of judicature to be holden in and for the said county, all such persons 
 then in his custody as shall be required by any lawful authority and com- 
 mand, and also shall convey such prisoners to the common gaol again, 
 upon the like command of any magistrate or magistrates, or courts of 
 judicature; (but the said J. K. to be at no expense for horses or other 
 carriages, for the necessary conveying such prisoners to any court or 
 courts of judicature, which shall be holden out of the county of N.; nor 
 for the maintenance of such prisoners, upon their going or returning to 
 or from such court of judicature) : And also if the said J. K. be attend- 
 ing, aiding and assisting upon the said high sheriff at all and every the 
 time and times when any execution shall be done within the said county, 
 upon any person or persons attainted or to be attainted of or for high 
 treason, murder, felony, or for any other capital crime, (but not to be 
 compelled to do or execute any corporal punishment of any kind upon 
 the person or persons of any prisoner who shall be condemned to undergo 
 the same or other punishment whatsoever) : And also if the said J. K. 
 do and shall, as often as he is required and desired, and at his own costs 
 and charges, make and deliver to the said A. B. or his under-sheriff, a 
 true and perfect calendar, containing all the prisoners' names within the 
 said gaol, or in his custody, containing and mentioning also the several 
 causes of their and every of their respective imprisonments, and in all 
 things well and truly execute the office of gaoler of and for the said 
 county of N., during all the term aforesaid : And lastly, if the said J. K., 
 his heirs, executors and administrators, and every of them, do and shall at 
 all and every the time and times hereafter save, defend, and keep harm-
 
 APPENDIX. 
 
 467 
 
 less and indemnified the said A. B., his heirs, executors and administrators, chap. hi. 
 and every of them, and his and their goods and chattels, lands and tene- sect. iv. 
 ments, of, from, and against all and every escape or escapes of any 
 prisoner or prisoners, delivered or to be delivered over to him the said 
 A. B., his servants, agents, deputy or deputies, or any of them, by any 
 warrant or warrants, precept or precepts, or commandments whatsoever, 
 as aforesaid, or for or by reason of any neglect or default or abuse of the 
 said J. K., his servants, agents, deputy or deputies, in his said office, 
 during such time as he shall continue gaoler and keeper of the said county 
 gaol as aforesaid ; and likewise from and against all and all manner of 
 action and actions, suits, troubles, judgments, executions, fines, issues, amer- 
 ciaments, forfeitures, and all other costs and damages whatsoever, which 
 at any time or times hereafter shall or may arise, grow or happen to be 
 brought upon the said sheriff, for or by reason of any such escapes, neg- 
 lect, or default as aforesaid, or for any other cause aforesaid, relating to 
 the said office of gaoler and keeper of the said county gaol as aforesaid ; 
 then this obligation, &c. 
 
 A Charge to the Gaoler against a Prisoner. 
 
 N, (to wit.) A. B., esquire, sheriff of the said county, to J. K., my 
 gaoler, greeting: Whereas you have in your custody the body of G. H., 
 these are to give you notice, that there is an execution, or capias ad salis- 
 faciendu7n, delivered into the office against the said G. H., issuing out of 
 
 her majesty's court of , at the suit of C. D. for , returnable 
 
 immediately after the execution thereof; of which you are to take notice, 
 and charge him therewith accordingly. Given under the seal of my 
 
 office, this day of in the year of our Lord . 
 
 ( Seal of office.) By the sheriff. 
 
 Gaoler's Receipt upon the same. 
 
 Received this day of , into my hands and custody, the 
 
 body of G. H., upon an execution, or capias ad satisfaciendum, issued out 
 
 of her majesty's court of , at Westminster, at the suit of , 
 
 for , returnable immediately after the execution thereof. I say, 
 
 received by me, J. K. gaoler. 
 
 Witness, E. F. 
 
 Liberate in pursuance of an Authority from the Plaintiff or his Attorney. 
 
 N. (to wit.) A. B., esquire, sheriff of the said county, to Mr. J. K., 
 my gaoler, greeting : If you have in your custody the body of R. N., 
 
 upon a writ of issued forth of her majesty's court of Queens 
 
 Beyich, at Westminster, at the suit of E. F., bearing date the 
 
 day of , for 76/., indorsed for bail for 36/. 18s., you are, in pur- 
 suance of an authority under the hands of the said plaintiff, (or "of Mr. 
 A. B,, attorney for the said plaintiff,") to the said sheriff directed, and 
 delivered into the office of the said sheriff, to deliver and discharge the said 
 R. N. from his imprisonment, if for no other cause you detain him, on 
 
 H H 2
 
 468 APPENDIX. 
 
 CHAP. III. payment of your fees. Given under tlie seal of my office, this 
 
 SECT. IV. day of , 18 — . 
 
 {Seal of office .) By the sheriff. 
 
 A Discharge to a Gaoler upon a Supersedeas. 
 
 N. {to wit.) A. B., esquire, sheriff of the county aforesaid, to Mr. 
 J. K., my gaoler, greeting : If you have in your custody the body of 
 
 R. N., upon a writ of , issued out of her majesty's com-t of , 
 
 at Westminster, at the suit of , for , you are, according 
 
 to a supersedeas issued out of the said court, and delivered into my office, 
 to deliver and discharge the said R. N. from his imprisonment, if for no 
 other cause you detain him. Given under the seal of my office, this 
 
 day of , 18—. 
 
 {Seal of office.) By the sheriff. 
 
 — ♦ — 
 
 CHAP. IV. 
 
 Form of a Sheriff's Mandate to the Bailiff of a Liberty. 
 
 N. {to idt.) A. B., esquire, sheriff of the county aforesaid, to the 
 Right Honourable A., earl of B., high bailiff of the liberty of L., in the 
 county aforesaid, or to his deputy there, greeting : By virtue of a certain 
 writ of our lady the queen, to me directed, I command you, and every of 
 you, that you take the said C. D., if he be found in your liberty of L., 
 and him safely keep, so that you may have, &c. {the same as a common 
 warrant.) 
 
 Return of the Bailiff of a Liberty {d). 
 
 By virtue of the same mandate, to me directed and delivered, I have 
 {the matter of the return the same as in ordinary cases). 
 
 " The answer of the Right Honourable A., earl of B., high bailiff of 
 the liberty of L., in the county of N." 
 
 CHAP, v.— Sect. 2. 
 
 War7-ant to raise the Posse Comitatus {e). 
 
 A. B., esquire, sheriff of N., to J. S., my bailiff, greeting: By virtue 
 of the common law of this realm, and by virtue of my office, I do hereby 
 command you, that you summon the posse comitatus of the county of N,, 
 to attend you in the execution of your office in executing a warrant upon 
 a writ of f. fa. issued out of the Common Pleas at Westminster, against 
 C, D., late of, &c , farmer, at the suit of E. F. ; and all knights, gentle- 
 men, and yeomen, labourers, servants, and apprentices, and other young 
 men above the age of fifteen years, are to attend you herein, as they will 
 answer the contrary, upon pain of fine and imprisonment. Given under 
 
 the seal of my office, this day of , 18—. 
 
 {Seal of office.) By the sheriff. 
 
 {d) As to return of bailiff of liberty, see ante, 60. 
 (e) This seems unnecessary. See ante, 73.
 
 APPENDIX. 
 
 CHAP. VI.— Sect. 1. 
 
 Warrant on a Bailable Capias. 
 
 N. (to wit.) A. B., esquire, sheriff of the county aforesaid, to 
 
 and , my bailiffs, greeting : By virtue of the queen's writ of capias 
 
 to me directed, I command each and every of you jointly and severally 
 that you omit not by reason of any liberty in my bailiwick, but that you 
 
 enter the same and take , if he shall be found in my bailiwick, and 
 
 him safely keep until he shall have given me bail or made deposit with 
 
 me according to law, in an action on promises, at the suit of , or until 
 
 the said shall by other lawful means be discharged from my cus- 
 tody ; and I do further command each and every of you, jointly and seve- 
 rally, that on execution hereof you do deliver to him a copy of the said 
 writ herewith delivered to you ; and I do further command you, that im- 
 mediately after the execution hereof you do certify to me the manner in 
 which you shall have executed the same, and the day of the execution 
 thereof, so that I may return the same to her majesty's said court, or 
 that, if the same shall remain unexecuted, then you do so return this my 
 warrant at the expiration of one calendar month from the date of the said 
 
 writ, or sooner if thereto required. Dated the day of , 18 — . 
 
 {Seal of office.) , High Sheriff. 
 
 Mandate to Sheriff of Lancashire. 
 
 A. B., Chancellor of the Duchy of Lancaster, to the Sheriff of Lan- 
 cashire, greeting : We command you that you omit not by reason of any 
 liberty in your bailiwick, but that you enter the same, and take C. W. of 
 
 , if he shall be found in your bailiwick, and him safely keep (4c. as 
 
 in the writ of capias, to the teste). Witness ourself at Lancaster the 
 
 day of , in the year of our reign. 
 
 469 
 
 By the same Chancellor. 
 
 Sect. 2. 
 Bail Bond. 
 
 CHAP. VI. 
 
 SECT. I. 
 
 Know all men by these presents, that we are held and firmly 
 
 bound to , shei-iff of the county of , in the penal sum of £ , 
 
 of good and lawful money of Great Britain, to be paid to the said sheriff, 
 or his certain attorney, executors, administrators or assigns ; for which 
 payment to be well and faithfully made, we bind ourselves and every one 
 of us by himself for the whole and every part thereof, and the heirs, exe- 
 cutors, and administrators of us and every of us, firmly by these presents 
 sealed with our seals. Dated this, &c. Whereas the above bounden 
 was, on the day of , taken by the said sheriff in the baili- 
 wick of the said sheriff, by virtue of the queen's writ of capias issued out 
 
 of her majesty's court of , bearing date at Westminster the day 
 
 of , to the said sheriff directed and delivered, against the said , 
 
 in an action on , at the suit of : And wliereas a copy of the 
 
 said writ, together with every memorandum or notice subscribed thereto, 
 and all indorsements thereon, was on execution thereof duly delivered to 
 
 the said : And whereas the said is by the said writ required 
 
 to cause special bail to be put in to the said action in the said court within 
 eight days after execution thereof on him, inclusive of the day of such
 
 470 APPENDIX. 
 
 CHAP. VI. execution : Now the condition of this obligation is such, that if the said 
 
 SECT. II. , do cause special bail to be put in for him to the said action in her 
 
 majesty's said court, as I'equired by the said writ, then this present obli- 
 gation to be void and of no force, otherwise to stand and remain in full 
 force, vigour, and effect. 
 
 Sealed and delivered in the presence of . 
 
 Assignment of Bail Bond, indorsed thereon. 
 I, the within-named sheriff, at the request of the within-named plain- 
 tiff, assign over to this bail bond, pursuant to the statute. In wit- 
 ness whereof I have hereto set my hand and seal this day of , 
 
 18 — . G. A., esquire, sheriff. 
 
 Sealed and delivered in the "^ 
 presence of A. M., \ 
 
 s. B. y 
 
 Sect. 3. 
 
 RETURNS TO BAILABLE WRITS OF CAPIAS. 
 
 Non est inventus. 
 
 The within named C. D. is not found in my bailiwick. 
 
 The answer of A. B., esquire, sheriff. 
 
 Cepi Corpus et Paratum habeo. 
 
 On the day of , a.d. 18 — , I took the within named C. D. 
 
 in my bailiwick, and forthwith delivered to him a copy of this writ, and 
 him safely kept until he gave me bail (or "made deposit with me") ac- 
 cording to law. The answer of A. B., esquire, sheriff. 
 
 On the day of , a.d. 18 — , I took the within named C. D. 
 
 and forthwith delivered to him a copy of this writ, and whose body I have 
 ready as within I am commanded. 
 
 The answer of A. B., esquire, sheriff. 
 
 On the day of , a.d. 18 — , I took the within named C, D. 
 
 and forthwith delivered to him a copy of this writ, and whose body is now 
 under my custody in the county gaol at A. 
 
 The answer of A. B,, esquire, sheriff 
 
 Return of prior removal by Habeas Corpus. 
 
 By virtue of this writ to me directed, 1 did, on the day of , 
 
 take the within named C. D. and did safely keep him in her majesty's 
 prison in and for the county of W., until afterwards, to wit, on &c., I re- 
 ceived her said majesty's writ of habeas corpus cum causa, commanding 
 
 me to have the body of the said C. D. before the Right Hon. , 
 
 at his chambers in Rolls Yard, Chancery Lane, London, immediately 
 after the receipt of that writ : By virtue of which said writ, on the day 
 and at the place therein mentioned, I had the body of the said C. D. 
 before, &c., who then received of me the body of the said C. D., and then 
 committed him to the queen's prison (or as the case may be), and then 
 wholly discharged me from further keeping him under my custody :
 
 APPENDIX. 
 
 471 
 
 Wherefore I cannot have the body of the said C. D. before our said lady chap. vi. 
 the queen at the day and place within contained, as within 1 am com- s^ot. ii i. 
 manded. The answer of A. B., esquire, sheriff. 
 
 Rescue. 
 By virtue of this writ to me directed, I made my certain warrant in 
 writing, under my seal of office, to E. F. and G. H., my bailiffs, jointly 
 and severally, to take and arrest the within named C. D. ; by virtue of 
 
 which warrant the said E. F. and G. H. afterwards, to wit, on the 
 
 day of last, at , in my county, and within my bailiwick, took 
 
 and arrested the within named C. D. according to the exigency of the 
 
 said writ, and safely kept him in their custody until J. K., of , and 
 
 divers other persons to my said bailiffs unknown, on , at afore- 
 said, with force and arms assaulted and illtreated my said bailiffs, and the 
 said C. D. out of the custody of my said bailiffs then and there rescued, and 
 the said C. D. then and there with force and arms rescued himself, and 
 escaped out of the custody of my said bailiffs, against the peace of our 
 lady the now queen, and afterwards the said CD. is not found in my 
 bailiwick. The answer of A. B., esquire, sheriff. 
 
 Discharge on Supersedeas. 
 By virtue of this writ to me directed, I took the within named C. D. 
 
 and safely kept him in her majesty's prison in and for the county of , 
 
 until afterwards, to wit, on , by virtue of another certain writ of 
 
 our said lady the now queen to me directed, and to this writ annexed, I 
 caused the said C. D. to be delivered out of the said prison, wherefore 
 I cannot have the body of the said C. D. before our said lady the queen 
 (or, iti C. P., " before the justices of our said lady the queen " ) at the 
 day and place within contained, as within I am commanded. 
 
 The answer of A. B., esquire, sheriff. 
 
 Languidus in Prisond. 
 By virtue of this writ to me directed, I have taken the within named 
 
 C. D., who remains in her majesty's prison of under my custody, so 
 
 weak and infirm, that without great peril and danger of his life I cannot 
 have his body before our said lady the queen at the day and place within 
 contained, as within I am commanded. 
 
 The answer of A. B., esquire, sheriff. 
 
 Return, Cepi Corpus and Languidus in Prisond, as to one Defendant ; 
 and Nan est Inventus as to another. 
 By virtue of this writ to me directed, I have taken the body of the 
 within named C. D., late of, &c., whose body remains so sick, weak and 
 infirm, in prison in my custody, that, for fear of the death of the said 
 C. D., I cannot have his body before the justices within mentioned at the 
 day and place within contained, as the within writ commands me. And 
 I further certify the same justices, that G. H., of, &c., the other defendant 
 within named, is not found in my bailiwick. 
 
 The answer of A. B., esquire, sheriff.
 
 472 
 
 APPENDIX. 
 
 CIJAP. VI. T. . T • 1 
 
 SECT. III. lieturn oj Languidus. 
 
 By virtue of this writ to me directed, I made my certain warrant in 
 writing to E. K. and G. H., my bailiffs, jointly and severally, to take and 
 arrest the within named C. D. ; by virtue of which said warrant the said 
 E. K. and G. II. proceeded to an asylum for lunatics, where the said 
 defendant then was, in order to arrest him ; and then there found the 
 said C. D. insane, and in a desperate and raving state, so that he could 
 not be taken or removed without danger to the life of the officer. And 
 the within named C. D. then was and still remains so sick, weak and 
 infirm, that, without peril and danger of his life, I cannot have his body 
 before our said lady the queen at the day and place within contained, as 
 I am within commanded. 
 
 The answer of A. B., esquire, Sheriff. 
 
 Heturn of Mandavi Ballivo. 
 
 By virtue of this writ to me directed and delivered, I have made my 
 mandate to the bailiff of the liberty of L., in my county, to take and arrest 
 the within named C. D. ; which said bailiff hath the full return of all 
 writs and process, and the execution of the same within the liberty afore- 
 said, so that no execution of this writ can be made by me within the 
 said liberty ; which said bailift" has not yet given me any answer thereto 
 (or, " hath answered that the within named C. D, is not found in his 
 bailiwick;" or, " that he hath taken the within named C. D., whose 
 body he hath ready," &c.) 
 
 Defendant privileged as Servant of an Ambassador. 
 
 I certify to the said justices within- mentioned, that the within-named 
 C. D., at the time of the delivery of this writ to me, and from thence 
 hitlierto continually hath been, and still is, a domestic servant of the Due 
 de M., ambassador extraordinary and minister plenipotentiary from the 
 queen of Spain at the British court. Therefore I cannot have the body 
 of the said C. D. before the said justices, at the day and place within- 
 mentioned, as I am commanded* 
 
 The answer of A. B., esquire, sheriff. 
 
 Defendant privileged as a Member of Parliament. 
 
 I certify to our said lady the queen, that the within-named C. D., at 
 the time of the delivery of this writ to me, and from thence hitherto con- 
 tinually hath been, and still is, knight of the shire for the division 
 
 of the county of , returned to serve in the present parliament of 
 
 Great Britain : and as such knight of the shire hath, during all that time, 
 served in the said parliament. And I further certify that the said par- 
 liament was, during all that time, sitting at Westminster, in the county of 
 Middlesex. Therefore I cannot have the body of the said C. D. before 
 our said lady the queen, at the day and place within mentioned, as I am 
 within commanded. A. B., esquire, sheriff.
 
 APPENDIX. 
 
 473 
 
 CHAP. VII. 
 
 CHAP. VII.— Sect. 1. sect. i. 
 
 Warrant on a Ca. Sa. 
 
 N. (to wit). A. B., esq., sheriff of the said county, to J. S., my bailiff, 
 greeting : By virtue of her majesty's writ of capias ad satisfaciendum, to 
 me directed and dehvered, I command you, that you omit not by reason 
 of any liberty in my county, but that you enter the same, and take C. D., 
 wheresoever he shall be found in my bailiwick, and him safely keep, so 
 that I may have his body before the barons of her majesty's Exchequer, 
 (or, in Q. B., " before our lady the queen;" or, in C. P. " before the 
 said justices,") at Westminster, immediately after the execution hereof, 
 as in the said writ I am commanded, and in what manner you shall have 
 executed this warrant certify to me immediately after the execution thereof. 
 Given under the seal of my office, this day of , 18 — . 
 
 (Seal of office.) By the sheriff. 
 
 RETURN TO CA. SA. 
 
 Non est inventus. 
 
 The within-named C. D. is not found in my bailiwick. 
 
 The answer of A. B. esquire, sheriff. 
 
 Withdrawal or Suspension of Writ. 
 I do hereby certify and return, that after the coming of this writ to me 
 directed, that is to say, on the day of , a. d. 18—, I was com- 
 manded by the within-named A. B. (or " by one E. F. the attorney of 
 the within-named A. B.") to forbear (or " suspend") the execution thereof, 
 and have forborne (or " suspended") accordingly. 
 
 The answer, &c. 
 
 Ce'pi Corpus, and Discharge out of Custody. 
 I have taken the within-named C. D., and committed him to the com- 
 mon gaol of our lady the queen of her castle of C, there to be kept in 
 safe custody, so that I might have his body before our lady the queen, 
 (" before the justices of our lady the queen," or " barons of her Exchequer") 
 at Westminster, as within I am commanded ; and I do hereby further 
 
 certify and return, that afterwards, that is to say, on the day of , 
 
 A. D. 18—, by command of a certain other writ of our lady the queen to 
 me directed and delivered, a transcript whereof is annexed to this writ, 
 (or, " by the direction and command of the within-named A. B." or, 
 « of one E. F. the attorney of the within-named A. B.") I caused the 
 said A. B. to be delivered from that prison, and therefore the body of the 
 said C. D. before, &c., at the day and place within contained, I cannot 
 have, as within I am commanded. The answer, &c. 
 
 That the Defendant had become Bankrupt and obtained his Certificate, 
 
 wherefore the Sheriff forbore to take him. 
 
 I do hereby certify and return, that, before the coming of the annexed 
 
 writ to me directed, the said C. D. in the said writ named, then being a 
 
 trader within the meaning of the laws relating to bankrupts, and being
 
 474 APPENDIX. 
 
 CHAP. VH. 
 SECT. I. 
 
 then indebted to E. F., a subject of this realm, in the sum of 501. and 
 upwards, and being also then indebted to divers other subjects of this 
 realm in divers other large sums of money, became and was a bankrupt 
 within the true intent and meaning of the said statute, and thereupon a 
 certain fiat in bankmptcy was upon the petition of the said E. F. duly 
 issued, and the said C. D. was thereupon duly found and declared to be 
 a bankrupt. And I do hereby further certify and return, that such pro- 
 ceedings were thereupon had, that the said C. D. afterwards, and after 
 the recovery of the damages and interest (or, " debt, damages, and in- 
 terest,") in the said writ mentioned, and before the coming of the said 
 
 writ to me directed, to wit, on the day of , in the said year of our 
 
 Lord 18 — , duly obtained his certificate of conformity to the statute afore- 
 said, and which certificate afterwards, and before the coming of the said 
 writ to me directed, was duly allowed and confirmed according to the 
 form of the statute in such case made and provided. And I hereby fur- 
 ther certify and return, that the cause of action, upon which the recovery 
 in the said writ mentioned was had and obtained, accrued to A. B. in the 
 said writ named against the said C. D., before such time as the said C. D. 
 so became a bankrupt. Wherefore I, the said sheriff", having notice of 
 all and singular the premises aforesaid, did forbear to take the body of the 
 said C. D., as within I am commanded. The answer, &c. 
 
 That the Defendant is a privileged Person. 
 Before and at the time of the coming of this writ to me directed, the 
 within-named C. D. was and still is a peer of the realm, having privilege 
 of parliament (" a menial servant of her majesty the queen," or the like,) 
 wherefore the body of the said C. D. before our lady the queen, on the 
 day and at the place within contained, I cannot have as within I am com- 
 manded. The answer, &c. 
 
 CHAP. VIII.— Sect. 1. 
 Return to the Exigent, Quinto Exactus, and Outlawed. 
 By virtue of this writ to me directed, at my county court (/) at A., in 
 
 and for the county of N., on the day of • , in the year of 
 
 the reign of our sovereign lady Queen Victoria, the within-named C. D. 
 was a first time demanded, and did not appear: And at my county 
 
 court, held at A, aforesaid, in and for the said county of N., on ,_the 
 
 . day of , in the year aforesaid, the said C. D. was a second time 
 
 demanded, and did not appear : And at my county court, held at A. 
 
 aforesaid, in and for the said county of N., on the day of — — , in 
 
 the year aforesaid, the said C. D. was a third time demanded, and did not 
 appear : And at my county court, held at A. aforesaid, in and for the said 
 
 county of N., on the day of , in the year aforesaid, the said 
 
 C. D. was a fourth time demanded, and did not appear : And at my 
 county court, held at A. aforesaid, in and for the said county of N., on 
 
 the day of , in the year aforesaid, the said C. D. was a fifth 
 
 time demanded, and did not appear : Therefore, upon the judgment of 
 
 (■/) If the outlawry is in London, the busting of pleas of land, liolden in 
 instead of " county court," say, " at the Guildhall of the city of London."
 
 APPENDIX. 47S 
 
 G. H., esq., and J. K., esq., coroners of our sovereign lady the queen for chap.vhi. 
 the county aforesaid, the said C. D., according to the law and custom of sect. r. 
 England, is outlawed. 
 
 The answer of A. B., esquire, sheriff. 
 
 Return to Exigent, where there are not Jive County Courts. 
 
 By virtue of this writ to me directed, at my county court, held at A., 
 
 in and for the county of N., on the day of , in the year of 
 
 the reign of our sovereign lady Queen Victoria, the within-named C. D. 
 was a first time demanded. 
 
 Answer of A. B., esquire, sheriff. 
 
 Where the Sheriff goes out of office, and the new Sheriff" exacts the 
 
 Defendant. 
 
 [In addition to the last precedent.] 
 
 This writ, as above indorsed, was delivered to me, the under-named 
 
 present sheriff, by the above-named late sheriff, at his going out of office. 
 
 At my county court, held at A. (as above.) 
 
 Where the Defendant appears. 
 
 By virtue of this writ to me directed, at my county court, held at A., 
 
 in and for tlie said county of N., on the day of ■ , in the 
 
 year of the reign of our sovereign lady Queen Victoria, the within-named 
 C, D. was a first time demanded, and then and there appeared, and then 
 rendered himself into my custody ; whose body I have ready before our 
 lady the queen, at the day and place within-mentioned, as within I am 
 commanded. 
 
 The answer of A. B., esquire, sheriff. 
 
 Return to the Writ of Proclamations. 
 
 By virtue of this writ to me dii"ected, I have caused the within-named 
 C. D. to be proclaimed at my county court, held at A., within my baili- 
 wick, the day of , in the year within-mentioned : I also caused 
 
 him to be proclaimed at the general quarter sessions of the peace, held at 
 
 M., within my bailiwick, the day of , in the same year : And 
 
 I likewise caused him to be proclaimed at the usual door of the parish 
 church of H., within my bailiwick (in which said parish the said C. D. 
 
 lived), on Sunday, the day of ■, in the same year; that he may 
 
 render himself unto me, (or, if a foreign proclamation, " to the sheriff of 
 
 , so that they,") so that I may have his body before her majesty's 
 
 justices at Westminster, at the time within-mentioned, to answer the 
 within-named J. W., of the plea within-mentioned. 
 
 The answer of A. B., esquire, sheriff. 
 
 Sect. 2. 
 
 Return to Special Capias TJtlugatum. 
 
 The execution of this writ appears in a certain schedule hereunto 
 annexed The answer of A. B,, esqiiire, sheriff.
 
 APPENDIX. 
 
 Inquiaition. 
 
 N. (to wit.) An inquisition indented, taken at A., in the county of 
 
 N., the day of , in the year of the reign of our sovereign 
 
 lady Queen Victoria, before me, A. B., esq., sheriff of the said county of 
 N., by virtue of .her said majesty's writ to me directed in this behalf, 
 and to this inquisition annexed, by the oath of (/lere name the jurors who 
 were upon the inquest) twelve honest and lawful men of the county 
 aforesaid, who say upon their oath, that C. D. named in the writ here- 
 
 imto annexed, on the daj^ of last past (on which day he was 
 
 outlawed, as in the said writ is mentioned), was possessed of the goods 
 and chattels following: that is to say, (here describe the goods) of the 
 
 value of £ , of his own proper goods and chattels ; {or, if he had no 
 
 goods, say, "had no goods nor chattels in my bailiwick to the knowledge 
 of the said jurors") : and the jurors aforesaid, upon their oath aforesaid, 
 
 do further say, that the said C. D., on last past (on which day he 
 
 was outlawed as aforesaid), was seised in his demesne as of fee of and 
 
 in (g) , with the appurtenances, now in the tenure and occupation 
 
 of P. M., the same being of the yearly value of £ , in all issues beyond 
 
 reprize ; all and singular which said goods and chattels, lands and tene- 
 ments, I the said sheriff, by virtue of the said writ, on the day of the 
 taking of this inquisition, have taken and caused to be seized into the 
 hands of our said lady the queen, as by the said writ I am commanded. 
 And the jurors aforesaid, upon their oath aforesaid, do further say, that 
 
 the said C. D., on last past (on which day he was outlawed as 
 
 aforesaid), or at any time afterwards, had not, nor hath he any other or 
 more (goods or chattels, lands or tenements) in my bailiwick, to the 
 knowledge of the said jurors. In witness whereof, as well as I the said 
 sheriff, as the jurors aforesaid, have set our respective seals. 
 
 {Seal of office.) {Ticelve seals.) 
 
 CHAP. IX. 
 
 Return to a Writ of Habeas Corpus. 
 
 N. (to wit.) I. A. B., esquire, sheriff of the said county, do humbly 
 certify and return to the Right Honourable Thomas Lord Denman, her 
 majesty's chief justice, mentioned in the writ to this schedule annexed, 
 
 that the said C. D., in the said writ named, was taken on the day 
 
 of ; and in her majesty's gaol in and for the said county at M. is 
 
 detained under my custody, by virtue of a writ of capias ad satisfaciendum ; 
 the tenor of which said writ follows in these words : " Victoria," &c. 
 (setting forth the writ and all indorsements titereon verbatim). And this 
 is the cause {or " causes") (/() of taking the said C. D., which, together 
 with his body, I have ready, as by the said writ I am commanded. 
 
 The answer of A. B., esquire, sheriff. 
 
 (g) See different findings of pro- the prisoner was taken by the late 
 
 perty, posf. Append, chap. 16, s. 2. sheiiff, and, after setting out the writ, 
 
 (h) In case of the prisoner being " which said writ, and the custody of 
 
 detained by several writs, all the writs the body of the said C. D, was duly 
 
 should be set out in the return, in like assigned, transferred and delivered 
 
 manner. If the prisoner was taken in over to me by the said late sheiiff, at 
 
 the late sheriff's time, the above form his going out of otTice," 
 would do, but it is belter to state that
 
 APPENDIX. 
 
 477 
 
 Warrant to Gaoler and Bailijf to convej Prisoner on a Habeas Corpus. 
 N. (to wit.) A. B., esquire, sheriff of the said county of N., to E. F., 
 keeper of the gaol of M., in this county, and to W.W., my bailiff (for 
 this time specially appointed) : By virtue of her majesty's writ, to me 
 directed, I command you that you safely and securely convey the body 
 of C. D., immediately after the receipt of this warrant, to and before 
 Thomas Lord Denman, chief justice of our lady the queen, before the 
 queen herself, at his chambers in Rolls 'Gardens, Chancery Lane, London; 
 to do, submit, and receive what the said chief justice shall then and there 
 consider of him in this behalf. Hereof fail not at your peril. Given 
 
 under my hand and seal of office, this day of , 18 — . 
 
 {Seal of office.) By the sheriff. 
 
 CHAP. X.— Sect. 1. 
 Warrant on a Fieri Facias. 
 
 N. {to ivit.) A. B., esquire, sheriff of the county aforesaid, to and 
 
 my bailiffs, greeting : By virtue of her majesty's writ of Jl.Ja. to me 
 
 directed and delivered, I do hereby command you and each of you jointly 
 and severally, that of the goods and chattels of C. D. in my bailiwick you 
 
 or one of you cause to be made £ ; that I may have that money 
 
 before our lady the queen {in C B. " before the justices of our lady the 
 queen," in Excfi. "before the barons of her majesty's Exchequer,'^ at 
 Westminster, as required by the said writ, and that you do all such things, 
 &c., and in what manner you shall have executed this wan-ant certify to 
 me immediately after the execution thereof. Given under the seal of my 
 office, this day of , 18—. By the sheriff. 
 
 Levy £ {as indorsed on the writ). {Seal of office.) 
 
 Sect. 4. 
 Bill of Sale from the Sheriff, of Goods taken under a Fieri Facias. 
 To all to whom these presents shall come, I, A. B., esquire, sheriff of 
 N., send greeting: Whereas by virtue of her majesty's writ of Ji. fa. 
 issued out of her majesty's Court of Queen's Bench at Westminster, to 
 me directed and delivered, for levying 20/., and 60s. damages or costs of 
 suit, on the goods and chattels of C. D., which E. F. in the said court 
 
 had recovered against him, as by the said writ in may more at large 
 
 appear, I have taken into my hands the several goods and chattels of the 
 said C. D. hereafter mentioned (j), that is to say, {here insert the parti- 
 culars,) which by good and lawful men have been valued and appraised 
 at £ . Now know ye, that I, the said A. B., by virtue of the said war- 
 rant and my office, and for and in consideration of the sum of £ of 
 
 lawful money of Great Britain, to me in hand paid by the said E. F., do 
 hereby, as much as in me lieth, by virtue of my said office, fully and abso- 
 lutely bargain, sell, and deliver to the said E. F., his executors, adminis- 
 trators, and assigns, the said goods and chattels, to have, hold, and enjoy 
 the same as his, her and their own proper goods and chattels for ever, 
 in part satisfaction of his debt and damages aforesaid. In witness, &c. 
 Signed, sealed, &c. 
 
 (i) Or " in a cevtain schedule hereto annexed."
 
 478 APPENDIX. 
 
 CHAP. X. 
 
 SECT. VI. Sect. G. 
 
 Condition of a Bond indemnifying the Sheriff for selling Goods on a 
 
 Fi. Fa. 
 
 Wliei-eas the above-named A. B. as sheriff of the county of N., by 
 virtue of her majesty's writ of fieri facias to him directed, issued at the 
 
 suit of E. F., out of the Court of Queen's Bench, and returnable on , 
 
 to levy on the goods and chattels of C. D. the sum of £ '-, hath seized 
 
 and taken divers goods and chattels, as the proper goods and chattels of 
 C. D. in execution : And whereas, since the seizing and taking of the 
 said goods and chattels in execution as aforesaid, the said goods and 
 chattels have been claimed by one X. Y., who hath given notice to the 
 said sheriflT not to proceed to a sale of the said goods and chattels, or to 
 pay over the money arising from the sale thereof to the said E. F. : And 
 whereas the said E. F. hath applied to the said sheriff, and requested him 
 to sell the said goods and chattels so seized as aforesaid, under and by 
 virtue of the said writ of fieri facias, notwithstanding such claim and 
 notice, and to pay to him the said E. F., the money arising from the sale 
 thereof, in satisfaction of the said sum of money directed to be levied by 
 the said writ of fieri facias, which the said A. B. hath consented to do 
 upon being indemnified for so doing : Now the condition of the above- 
 written obligation is such, that if the above-bounden E. F._, his heirs, ex- 
 ecutors, and administrators, do and shall from time to time and at all 
 times hereafter well and sufficiently save harmless and keep indemni- 
 fied the said sheriff, his under-sheriff, deputy, and officers, and each and 
 every of them, of, from, and against all losses, costs, charges, damages 
 and expenses, which lie or they shall or may sustain, suffer, bear, pay, 
 expend or be put unto, for, or by reason or means of seizing or selling 
 the said goods and chattels so seized and taken in execution as aforesaid, 
 or paying unto the said E. F. the money arising from the sale thereof, in 
 
 satisfaction of the said sum of £ so directed to be levied by the said 
 
 writ of fieri facias; and also of, from, and against all action and actions, 
 suit and suits, or any proceeding or proceedings at law or equity, which 
 now are, or shall or may at any time or times hereafter be brought, com- 
 menced or prosecuted, rightfully or wrongfully, agahist the said A. B., 
 his under-sheriff, deputy, or officers, or any or either of them, for or on 
 account or by reason or by means of the seizing or selling the said 
 goods and chattels under and by virtue of the said writ of fieri facias, or 
 paying unto the said E. F. the money arising from the sale thereof, as 
 aforesaid, or for or by reason or means of any other act, matter, cause, or 
 thing whatsoever relating thereto, or to the execution of the said writ of 
 fieri facias, then the above-written obligation to be void, otherwise to 
 stand and remain in full force, vigour, and effect. 
 
 Sealed, &c. 
 
 Condition of a Bond of Indemnity for abandoning Goods, and returning 
 Nulla Bona. 
 
 Whereas the above-named sheriff) by virtue of her majesty's writ of 
 fieri facias to him directed, against the goods and chattels of C. D., issued 
 out of her majesty's Court of Queen's Bench at Westminster, and there 
 
 returnable on '-, at the suit of one E. F., hath seized and taken divers 
 
 goods and chattels as the proper goods and chattels of the said C. D. in
 
 APPENDIX. 
 
 479 
 
 execution: And whereas the above-bounden I. K. hath given notice to chap. x. 
 the said sheriff, and claimed the said goods and chattels, and hath re- sect, vi. 
 quested the said sheriff to quit possession of, and abandon and deliver to 
 the said I. K., the said goods and chattels so seized as aforesaid, and to 
 make his return to the court when called on so to do, that the said C. D. 
 had not any goods in his bailiwick, [or if^ there were other goods, this 
 should be stated according to the fact,'] which the said sheriff had con- 
 sented to do, on the said I. K. indemnifying him the said sheriff for so 
 doing : Now the condition of the above-written obligation is such, that 
 if the above-bounden I. K., his heirs, executors, and administrators, do 
 and shall from time to time, and at all times hereafter, well and suffici- 
 ently save harmless and keep indemnified the same sheriff, his under- 
 sheriff, deputy, or officers, and each and every of them, of, from, and 
 against all losses, costs, charges, damages, and expenses, which he or 
 they shall or may sustain, suffer, bear, pay, expend, or be put unto, for 
 or by reason or means of quitting possession of, abandoning, and deliver- 
 ing to the said I, K.,the said goods and chattels so seized as aforesaid, and 
 returning that the said C. D. had no goods in his bailiwick: And also of, 
 from, and against all action and actions, suit and suits, proceeding or pro- 
 ceedings, either in law or equity, which now are, or shall or may at any 
 time or times hereafter be brought, commenced, or prosecuted, rightfully 
 or wrongfully, by the said E. F., or by any person or persons whomso- 
 ever, against the said sheriff, his under-sheriff, deputy and officers, or any 
 or either of them, for or on account, or by reason or by means of the 
 quitting possession of, abandoning, and delivering to the said I. K. the 
 said goods and chattels, and returning that the said C. D. had not any 
 goods in his bailiwick, or for or by reason or means of any other act, 
 matters, cause, or thing whatsoever, relating thereto, or to the execution 
 or return of the said writ of fieri facias, then the said obligation to be void, 
 otherwise to stand and remain in full force, vigour and effect. 
 Sealed, &c. 
 
 Sect. 7. 
 
 returns to writ of fi. fa. 
 
 Nulla Bona. 
 
 The within-named C. D. hath not any goods or chattels in my baili- 
 wick, whereof I can cause to be made the debt, damages and interest [or 
 " damages and interest,"] as the within writ commands me. 
 
 The answer of A. B., esquire, sheriff. 
 
 Fieri Feci. 
 
 By virtue of this writ to me directed, I have caused to be made of the 
 goods and chattels of the within-named C. D., the debt, damages and in- 
 terest [or " damages and interest"] within written, which I have ready at 
 the time and place within mentioned, to be rendered to the within-named 
 E. F. as within I am commanded. 
 
 A. B,, esquire, sheriff.
 
 480 APPENDIX. 
 
 CHAP. X. 
 
 SECT. VII. Fieri Feci as to part, and Nulla Bona as to the remainder. 
 
 By virtue of tliis writ to me directed, I have caused to be made of the 
 
 goods and chattels of tlie within-named C. D., to the value of £ , [1/ 
 
 in hands for want of hni/ers, insert the words in italics in next precedent, 
 instead of the icords in italics in this,'] which said monies I have reudjj at 
 the time and place icithin contained, to render to the within-named G. H. 
 in part satisfaction of his debt, damages, and interest within specified. 
 And I further certify and return that the said C. D. hath no more goods 
 or chattels in my bailiwick, whereof I may cause to be made the residue 
 of the said debt, damages, and interest, or any part thereof, as the within 
 writ commands me. 
 
 A. B., esquire, sheriff. 
 
 Fieri Feci, and that the Goods remain in the Sheriff's hands for want of 
 
 buyers. 
 
 By virtue of this writ to me directed, I have caused to be made of the 
 goods and chattels of the within-named C. D. to the value of the damages 
 and interest within written, which said goods and chattels remain rcith me 
 unsold for want of buyers; therefore I cannot have that money, or any 
 part thereof, at the time and place within mentioned, as the said writ com- 
 mands me. 
 
 A. B., esquire, sheriff. 
 
 Return that Goods to the amount of part of the Debt and Damages have 
 been sold ; the rest unsold. 
 
 By virtue of this writ to me directed, I have caused to be made of the 
 
 goods and chattels of the within-named C. D., to the value of £ , and 
 
 have thereof sold to the value of £ , which money I have ready at 
 
 tlie time and place within contained, to be rendered to the within-named 
 E. F., as the within writ commands me, but the residue of the said goods 
 and chattels remain in my hands for want of buyers. 
 
 The answer of A. B., esquire, sheriff. 
 
 Fieri Feci as to part, and that the Sheriff has paid part of the Sum levied 
 to the Landlordj'or Rent. 
 
 By virtue of this writ to me directed, I have caused to be made of the 
 
 goods and chattels of the within named C. D., to the value of £ , 
 
 part of which said sum of £ I have paid to H. Y., the landlord of the 
 
 premises on which the said goods and chattels were taken, for half a year's 
 
 rent due to him for the said premises, at last, and I have retained in 
 
 my hands the sum of £ for poundage and expenses; and £ , the 
 
 residue of the said sum of £ , I have ready at the time and place 
 
 within mentioned, to render to the said E. F. in part satisfaction of his 
 damages and interest. And the said C. D. hath not any more goods and 
 chattels in my bailiwick, whereof I can cause to be made the residue of 
 the said damages and interest, as within I am commanded. 
 
 The answer of A. B., esquire, sheriff.
 
 APPENDIX. 
 
 481 
 
 CHAP. 
 
 Fieri Feci us to part, and payment of Queens Taxes. sect. vh. 
 
 [ The same as the last precedent, excepting, instead of the rvords in italics:] ~ 
 
 £ — , part of which said sum of £ , I have paid for queen's taxes, 
 
 due and owing to her majesty for and in respect of the said premises at 
 the time of taking the said goods and chattels. 
 
 Mandavi Ballivo. 
 
 By virtue of this writ to me directed, I made my mandate to , 
 
 bailiff of the liberty of L., in my county, to whom belongeth the execu- 
 tion and return of all writs and processes within the said liberty, and 
 without whom no execution of this writ could be made by me within the 
 same; which said bailiff hath returned to me, that by virtue of my man- 
 date, to him thereupon directed as aforesaid, he hath caused to be made 
 of the goods and chattels of the within-named C. D. the damages within 
 mentioned, and tliat he hath the money ready before our said lady the 
 queen, at the time and place within mentioned, as by the said mandate 
 he was commanded. 
 
 A. B. esquire, sheriff. 
 
 Nulla Bona to a Fi. Fa, de bonis testaloris. 
 
 The within-named C. D. ha.<! no goods or chattels which were of the 
 within-named X. Y. at the time of his death in the hands of the said 
 C. D. to be administered, in my bailiwick, whereof I can cause to be 
 levied the damages within mentioned, or any part thereof. 
 
 A. B. esquire, sheriff. 
 
 The same, with a Devastavit. 
 
 [The same as the last precedent, to the end, then proceed:'] but divers 
 goods and chattels which were of the said X. Y., at the time of his^ 
 death, to the value of the damages within mentioned, after the death of 
 the said X. Y. came to the hands of the said C. D. to be administered, 
 which said goods and chattels the said C. D. hath, before the coming of 
 this writ to me, eloigned, wasted, and converted to his own use. 
 
 The answer of A. B. esquire, sheriff. 
 
 Nulla Bona to a Fi. Fa. de bonis testatoris, si non, de botiis propriis. 
 
 [The same as the last precedent but one to the end, then proceed:] nor 
 hath he the said C. D. any of his own proper goods and chattels in my 
 bailiwick, whereof I can cause to be made the within-mentioned sum of 
 £ , &c. {as the case may be) or any part thereof, as the said writ com- 
 mands me. The answer of A. B. esquire, sheriff. 
 
 Sheriff's Return to Scire Fieri Inquiry. 
 The within-named C. D. has no goods or chattels which were of the 
 within-named X. Y., deceased, at the time of his death, in the liaiuls of 
 the said C. D. to be administered, in my bailiwick, whereof I can cause 
 
 I I
 
 482 APPENDIX. 
 
 ciiAi'. X. to be made the damages vvitliin-writtcn, or any part thereof; but the said 
 SECT. VII. C. D., after tlie death of the said X. Y., liad divers goods and chattels, 
 - which were of the said X. Y. at the time of his deatli, in the hands of 
 
 him the said C. D. to bo administered, to the vahic of the damages and 
 interest within-written; whicli said goods and chattels the said C. D, 
 afterwards, and before the coming of this writ to me, sold, wasted, eloigned, 
 and converted to his own use, as appears by a certain inquisition taken 
 before me in this behalf, on the oath of honest and lawful men of my said 
 bailiwick, and to this writ annexed : and I further certify and return, that 
 the said C. I), hath nothing in my bailiwick, where or by which I can 
 make known to him, as by the said writ I am commanded ; nor is he 
 found in the same. The residue of the execution of this writ appears in 
 a certain inquisition hereunto annexed. 
 
 The answer of A. B. esquire, sheriff. 
 
 An inquisition indented, taken at on the day of in the 
 
 year of the reign of our sovereign lady Victoria, queen of the united king- 
 dom of Great Britain and Ireland, &c., before A. B. esquire, sheriff of 
 the county aforesaid, by virtue of a writ of our said lady the queen, directed 
 to the said sheriff, and to this inquisition annexed, to inquire of and upon 
 certain matters in the said writ contained and specified, by the oath of 
 G. H., &c., honest and lawful men of the bailiwick of the said sheriff, who, 
 upon their oath aforesaid, say, that C. D., in the said writ named, after 
 the death of the said X. Y., in the said writ also named, had divers goods 
 and chattels, which were of the said C. D. at the time of his death, in the 
 hands of him the said C. D. to be administered, to the value of tlie da- 
 mages and interest, (or " debt, damages and interest,") in the said writ 
 specified, which said goods and chattels the said C. D. hath sold, wasted, 
 eloigned, and converted to his own use. In witness whereof, as well 
 the said sheriff as tlie jurors aforesaid have caused their seals to be affixed 
 to this inquisition, the day and year above mentioned. 
 
 Return that the Defendant is a beneficed Clerk. 
 
 The within-named C. D. has no goods or chattels, nor any lay fee, in 
 my bailiwick, whereof I can cause to be made the damages within-men- 
 tioned, or any part thereof, as within I am commanded ; but I do hereby 
 certify and return, that the said C. D. is a beneficed clerk, to wit, rector of 
 
 the rectory (or " vicar of the vicarage") and parish church of , in my 
 
 county, which said rectory {or " vicarage") and parish church are within 
 the diocese of the Right Reverend Father in God, John, by divine per- 
 mission, bishop of . The answer of A. B., esquire, sheriff. 
 
 CHAP. XI. 
 
 Warrant to take the Defendant's Goods on Elegit. 
 
 N. (to wit). A. B., esquire, sheriff of the said county of N., to E. F., 
 &c., my bailiffs, greeting: By virtue of her majesty's writ o{ elegit to me 
 directed, I command you and each of you, that witliout fail you jointly or 
 severally seize and take all the goods and chattels of C. U. (except his 
 oxen and beasts of the plough) in my bailiwick; so that I may, by rea-
 
 APPENDIX. 483 
 
 sonable price, cause the same to be delivered to I. K., to hold to the said chap. xi. 
 I. K. as his proper goods and chattels, and forthwith certify the same to me. 
 Given under my hand and seal of office. 
 
 {Seal of office.) By the sheriff. 
 
 Charge to the Jury. 
 
 Your chai'ge is to inquire what goods and chattels (except oxen and 
 
 beasts of the plough) C. D. was possessed of on the day of ,a.d. 
 
 18 — (/c), or at any time afterwards in my bailiwick, and the value thereof; 
 your charge also is to inquire what lands, tenements, rectories, tithes, 
 rents and hereditaments, including lands and hereditaments of copyhold 
 or customary tenure, C. D. or any one in trust for him was seised or pos- 
 sessed of on the day of , a. d (/), or at any time after- 
 wards, or over which the said C. D. on the day of , a. d. , 
 
 or at any time afterwards, had any disposing power which he might, without 
 the assent of any other person, exercise for his own benefit, and also to 
 inquire and say what is the yearly value thereof, that the same may at a 
 reasonable price and extent be made to be delivered to A. B. to hold as 
 his own proper goods and chattels, and also to hold the said lands, tene- 
 ments, rectories, tithes, rents and hereditaments respectively, according to 
 the nature and teiuue thereof, to him and his assigns until the said sum 
 of £, , together with interest as aforesaid, shall have been levied. 
 
 Juryman s Oath and Affirmation. 
 
 You shall well and truly try what goods and chattels (except his oxen 
 
 and beasts of the plough) C. D. was possessed of on the day of 
 
 A. D. 18 — (??/), or at any time afterwards in my bailiwick, and the value 
 thereof. You shall also well and truly try what lands, tenements, rec- 
 tories, tithes, rents and hereditaments, including lands and hereditaments 
 of copyhold or customary teiuu-e, C. D., or any one in trust for him, was 
 
 seised or possessed of on the day of , a. d. 18 — (n), or at any 
 
 time afterwards, or over which the said C. D. on the day of, a. d. 
 
 18 — , or at any time afterwards, had any disposing power which he might, 
 without the assent of any other person, exercise for his own benefit in my 
 bailiwick, and the yearly value thereof, and a true verdict give according 
 to the evidence. So help you God. 
 
 Return to Elegit. 
 The return of this writ appears in the inquisition hereunto annexed. 
 
 A. B. esquire, sheriff, 
 
 In(]uisition. 
 N, {to wit.) An inquisition indented, taken at A., in the county of N,, 
 the day of in the ■ year of the reign of our sovereign lady 
 
 (/c) The day when the writ was de- (m) The day when the writ was de- 
 livered to the sheriff or his deputy for livered for execution, 
 executioti. („) The day of the entry of tlie 
 
 (I) The day of entry of judgment judgment, 
 or date of order, decree, &c.
 
 484 Arri:NJ)ix. 
 
 CHAP. \i. Queen Victoria, before me, A. B., esquire, sheriff of the said county, by 
 
 virtue of her said majesty's writ to me directed in this belialf, and to this 
 
 inquisition annexed, by tiie oath of (here name the jurors who were 2ipon 
 the inquest) twelve honest and lawful men of the county aforesaid, who 
 being sworn and charged, upon their oath say, that C. D., named in the 
 writ liereunto annexed, on the day of tlie taking of this inquisition, was 
 possessed in his own right of the goods and chattels following, that is to 
 
 say {here describe the goods), of the price of £ , as of his own proper 
 
 goods and chattels ; which said goods and chattels I, the said sheriff, have 
 caused to be delivered to the said I. K., to hold the said goods and chat- 
 tels as his own proper goods and chattels, in part satisfaction of his debt, 
 damages and interest, (or " damages and interest,") in the said writ men- 
 tioned, as by the said writ I am commanded; (or if there be no goods or 
 chattels, say, " had no goods or chattels in my bailiwick, to the knowledge 
 of the said jurors;") and the jurors aforesaid, upon their oath aforesaid, 
 
 do further say that the said C. D., on the day of in the 
 
 year of the reign, frc, (on which day the judgment, in the said writ men- 
 tioned, was obtained,) was seised in his demesne as of fee of and in (here 
 describe the lands in such a manner as they would be described in a convey- 
 ance, stating the ylace and county in ivhich they lie, the estate the defendant 
 had in them, and ivhether seised in severalty, or us joint tenant, or tenant 
 in common. See the nextj'orm, and post, appendix, chap. 15,s. 2 ; adding 
 after each messuage or parcel of land the value of it, thus: " the same 
 
 being of the clear yearly value of £ ■, in all issues beyond reprises,") 
 
 which said lands and tenements I, the said sheriff, on the day of the taking 
 of this inquisition, have caused to be delivered to the said I.' K., by a 
 reasonable price and extent, to hold as his freehold to him and his assigns, 
 according to the force of the statute in such case made and provided, 
 until the debt, damages and interest (or " damages and interest") in the 
 said writ mentioned, shall be thereof levied ; as by the said writ lam 
 commanded. And the jurors aforesaid, upon their oath aforesaid, do 
 further say that the said C. D. (o), on the day of the taking of this inquisi- 
 tion aforesaid, had 7W other .or more goods and chattels in my bailiwick ; 
 
 nor had he, or any person or persons in trust for him, on the day of 
 
 (the day on which the judgment aforesaid was obtained), or at any time 
 afterwards, any other or more lands and tenements in my bailiwick, to the 
 knowledge of the said jurors. In witness whereof, as well I, the said 
 sheriff, as the jurors aforesaid, have severally set our respective seals to 
 this inquisition, on the day and year and at the place aforesaid. 
 
 The like, where Lands holden in joint Tenancy aie extended. 
 
 [Sa7ne as the last precedent, to the tvords'] who being sworn and 
 charged, upon their oath say, that C. D., named in the said writ hereunto 
 annexed, on the day of the taking of this inquisition, had no goods or 
 chattels in my bailiwick, to the knowledge of the said jurors ; and the 
 jurors aforesaid, upon their oath aforesaid, do further say, that the said 
 
 C. D., on the day of in the year of the reign, &c., (on 
 
 which day the said judgment, in the said writ mentioned, was obtained) 
 
 (o) If there are no goods found, omit the words in italics; this has been 
 stated in a former part of this form.
 
 APPENDIX. 
 
 was seised in his demesne as of fee of and in one undivided moiety (the 
 wliole in two equal moieties to he divided) of and in one messuage 
 or tenement, with the appurtenances, situate, lying and being in tlie 
 
 parish of , in the county aforesaid, now in the tenure and occupation 
 
 of X. Y., abutting towards the east on, &c., towards the nortli on, &c., 
 towards the west on, &c., and towards the south on, &c ; and being of 
 the clear yearly value of twenty pounds, in all issues beyond reprises ; 
 and also of and in one undivided moiety (the whole into equal moieties 
 to be divided) of and in one other messuage, &c. ; which said undivided 
 moieties of the said several messuages with the appurtenances, so in the 
 tenure and occupation of the said X. Y. as aforesaid, I, the said sheriff, 
 on the day of the taking of this inquisition, have caused to be delivered to 
 to the said I. K., by a reasonable price and extent, to hold as his freehold, 
 [concludivg as in the lastj'orm]. 
 
 CHAP. XII. 
 
 Warrant on a Hah. Fac. Poss. 
 
 N. (to ivit.) A. B., esquire, sheriff of the county aforesaid, to J. S., 
 my bailiff, greeting : By virtue of her majesty's writ of habere facias pos- 
 sessionem to me directed and delivered, I command you that you deliver 
 to John Doe possession of his term yet to come and unexpired of and in 
 the tenements in the said writ specified, with the appurtenances, and 
 forthwith certify the same to mc. Given under the seal of my office 
 this day of , 18 — . 
 
 (Seal of office.) By the sheriff. 
 
 Return to a writ of Hab. Fac. Poss. 
 
 By virtue of this writ to me directed, on the day of , in the 
 
 year within mentioned, I delivered to the within named John Doe pos- 
 session of the within mentioned term of and in the tenements with the 
 appurtenances within mentioned, as I am within commanded. 
 
 A. B., esquire, sheriff. 
 
 485 
 
 Return to a Writ of Hub. Fac. Poss. where the Recovery teas of a Moieti/ 
 of' the P7-emlses. 
 
 By virtue of this writ to me directed, on the day of , in the 
 
 year within mentioned, I delivered to the within named A. B. possession 
 of the within term of and in one uioiety or half part of the tenements, 
 with the appurtenances, within mentioned, as I am within commanded. 
 
 A. B., esquire, sheriff. 
 
 The like, with a Return to a Fi. Fa. for Costs. 
 
 By virtue of this writ to me directed, on the day of , in the 
 
 year within mentioned, I delivered full possession to the within named 
 John Doe of the within mentioned term of and in the tenements, with 
 the appurtenances, within mentioned, as within I am commanded ; and 
 I further certify and return, that the said C. D. hath not any goods or
 
 480 Ain'ENDix. 
 
 ciiAi'. XII. c/iatlcls luhcriof I can cause to be mack the damages toilldn mentioned, or 
 
 ~~ any part thcre.oJ'{ii). 
 
 The answer of A. B., esquire, sheriff. 
 
 Jieturn that no Person came to point out the Lands. 
 I certify o\ir said lady the queen (or " the justices within mentioned") 
 
 tliat this writ was delivered to nie on the day of , since which 
 
 time I liavc always heen ready and willing to execute the same, as within 
 I am commanded ; hut no person on behalf, or on the part of the said 
 John Doc, ever came to me to show me the tenements within mentioned, 
 or any part thereof, or to receive possession of the same, or any part 
 thereof, from me. The answer of A. B., esquire, sheriff. 
 
 CHAP. XIII. 
 
 Deputation to take an Inquisition (o). 
 
 N. {to wit.) A. B., esquire, sheriff of the county aforesaid, to I. S., 
 gentleman, greeting : By virtue of a writ of inquiry issued out of her 
 majesty's court of Queen's Bench, at Westminster, to me directed, I do 
 hereby authorize and empower you to summon a jury, and take an inqui- 
 sition in my name, in a cause wherein J. H. is plaintiff, and E. A., widow, 
 is the defendant ; and render me an account of what you shall do therein, 
 so that I may certify the same to our sovereign lady the queen, at West- 
 minster, on the day of next coming ; hereof fail not. Given 
 
 under the seal of my ofhce the day of , 18 — . 
 
 {Seal of office.) By the sheriff. 
 
 Oath to be administered to the Jury. 
 
 You shall well and truly try all such matters and things as shall he 
 given you in charge touching this writ of inquiry, and a true verdict give, 
 according to the evidence. So help you God. 
 
 {From the nature of the oath, it is necessary that the sheriff should give 
 
 a short charge to the jury, ivhich need be little inore than reading the 
 
 writ.) 
 
 Oath to be administered to the Witnesses. 
 The evidence you shall give to this court and jury, touching the matters 
 in question in the cause wherein A. B. is plaintiff and C. D. defendant, 
 shall be the truth, the whole truth, and nothing but the truth. 
 
 So help you God. 
 
 (71) Or, instead of the words in (0) If a deputy is appointed to_ex- 
 italics,ieturn/e)-i/eci, asa?ite, p. 479 ; ecute a writ of inquiry, the appoint- 
 or if a ca. sa. was issued for costs, in- ment must be under seal of office; 
 sett a return cepi corpus, or nnn est Barnes, 232 ; a verbal appointment is 
 i7iventus, as ante, instead of the words bad, ante, p. 325. 
 in italics.
 
 APPENDIX. 
 
 487 
 
 Sherif's Retur?i to a Writ of Inquiry. chap, xnr. 
 
 The execution of this writ appears in the inquisition hereunto an- 
 nexed. The answer of A. B., esquire, sheriff. 
 
 Inquisition on a Writ of' Inquiry. 
 
 N. (to wit.) An inquisition indented, taken at , in the county 
 
 aforesaid, the day of , between the hours of and in 
 
 the forenoon of the same day, in the year of the reign of our 
 
 sovereign lady Queen Victoria, before me, A. B., esquire, sheviff of the 
 said county, by virtue of her majesty's writ to me directed, and to this 
 inquisition annexed, upon the oaths of {here name the tivelve jurors) good 
 and lawful men of the said county of N., who being chosen, tried and 
 sworn, upon their oaths say, that E, F., in the said writ named, hath 
 sustained damages by reason of not performing the promises and under- 
 takings {or us the case may be) of C. D., in the said writ also named, to 
 
 the value of £ , and also forty shillings for his costs and charges by 
 
 him in his suit in this behalf occasioned. In witness whereof, as well the 
 said sheriff as the jurors aforesaid to this inquisition have severally put 
 their seals the day and year aforesaid. 
 
 {Seal oj office.) A. B., esquire, sheriff (/)). 
 
 E. Y. {Seal.) 
 G. H. {Seal.) 
 {/bid so the remainder of the twelve jurors.) 
 
 Warrant on a Writ of ad quod damnum. 
 
 N. {to wit.) A. B., esquire, sheriff of the said county, to E. F. and 
 
 C. D., my baiHffs, greeting : By virtue of her majesty's writ of ad quod 
 
 damnum to inc directed and delivered, I command you that you or the 
 
 one of you personally summon {name twenty-four persons living in the 
 
 neighbourhood) to be and appear at , in the said county, on , 
 
 the • day of , between the hours of and in the - 
 
 of the same day, then and there to inquire upon their oaths whether it 
 will be to the prejudice of her majesty or of any other {take a full abstract 
 
 of the writ). Given under the seal of my office this day of , &c. 
 
 {Seal of office.) By the sheriff. 
 
 Return to be indorsed on a Writ ad quod damnum. 
 The execution of this writ appears in a certain inquisition hereunto 
 annexed. A. B., esquire, sheriff. 
 
 Inquisitio/i. 
 
 N. {to wit.) An inquisition taken at the house of , situate in 
 
 , in the county of N. aforesaid, the day of , in the 
 
 year of the reign of our sovereign lady Queen Victoria, and in the year 
 
 (/)) One part on paper, signed and opposite to the seal of oftice, and 
 
 sealed by the sheriff and jurors, the twelve seals must also be affixed, but 
 
 sheriff keeps ; a duplicate of the in- the inquisition need not be signed by 
 
 quisition must l)e written on parch- the juiy.— N.B. Indent both parts of 
 
 ment, and signed by the sheriff only, the engrossment.
 
 4.SS Al'l'ENDlX, 
 
 ciiAT. XIII. of our lord , before inc, A. B,, esquire, slieriiVof tlie suid county, by 
 
 virtue of a writ of our sovereign lady tlie queen to me directed, and to 
 
 this inquisition annexed, upon the oaths of {name the jury) good and 
 lawful men of my county, who being sworn and charged upon their oath 
 aforesaid to incpiiri! into the matters in the said writ specified, say, that it 
 will not be to the damage or prejudice of our lady the queen or any other 
 
 if our lady the queen should grant to licence to inclose such part 
 
 of tlie connnon highway, leading from the village of , which lies 
 
 (describe parlicuhirli/ the part and the exact length). And the jurors 
 aforesaid, upon their oath aforesaid, do also say, that it will not be to the 
 damage or prejudice of our said lady the queen or any other if our said 
 
 lady the queen should grant to the said licence to inclose such part 
 
 of another common highway, leading from the town of to , &c. 
 
 To hold the said two several parts of the said two common highways so 
 
 to be inclosed to the said and his heirs for ever. And the jurors 
 
 aforesaid, upon their oath aforesaid, further say, that the said , in 
 
 lieu of the first above-mentioned parts of the common highway to be 
 inclosed, hath in his own lands and grounds set out to be held and used 
 a highway leading from (describe it very particularly, with the exact 
 length and breadth) ; and which is as convenientfor the liege subjects of our 
 said lady the queen passing and repassing along the same. And the 
 
 jurors aforesaid, upon their oath aforesaid, further say, that the said , 
 
 in lieu of the last-mentioned j)avt of the said highway to be inclosed, hath 
 in his own lands and grounds set out to be held and used a highway, 
 
 beginning in certain other lands and grounds of the said , &c., and 
 
 which is as convenient, &c. In witness whereof, as well I the said sheriff, 
 as the jurors aforesaid, have hereunto interchangeably set our hands and 
 seals the day, year, and place above written. 
 
 A. B., esquire, sheriff. 
 (Seal of office.) (Twelve seals.) 
 
 — ♦ — 
 
 CHAP. XIV. 
 
 Sheriff's Precept to suvimon Jury on a Writ of Trial. 
 
 N. (to ivit.) I, A. B., esquire, sheriff of the said county, to G. and 
 B., my bailiffs, greeting : These are to require you, or one of you, that 
 you cause to come twelve good and lawful men of the said county, and 
 
 to be and appear at , on , by o'clock in the forenoon, to 
 
 try the issues joined between C. D,, plaintiff, and E. F. defendant, in a plea 
 of debt (or according to the case), and herein fail not at your peril. Given 
 under the seal of my office this day of , 18 — . 
 
 (Seal of office.) A. B. sheriff. 
 
 Oath to Jurymen. 
 You shall well and truly try the issues joined between the parties, and 
 a true verdict give according to the evidence. So help you God. 
 
 Oath to Witnesses. 
 
 The evidence you shall give to the court and jury, touching the matters 
 in question, shall be tlie truth, the whole truth, and nothing but the truth. 
 
 So help you God.
 
 APPENDIX. 489 
 
 CHAP. XIV. 
 
 Certificate to stay Judgment, 
 
 I hereby certify, that judgment ought not to be signed herein until the 
 
 day of , in order that the within named defendant (or " plain- 
 
 tifi"") may have an opportunity to apply to the court for a new trial herein. 
 
 A. B. under-sheriff. 
 
 Postea{a). 
 
 Afterwards, on the day of , in the year of our Lord 18 — , 
 
 before me, A. B. esquire, sheriff of the county of N., came as well the 
 within named plaintiff as the within named defendant, by their respective 
 attorneys within named, and the jurors of the jury, by me duly sum- 
 moned as within commanded, also came, and being duly sworn to try the 
 said issue within mentioned, on their oath said that, &c. 
 
 The answer of A. B. sheriff. 
 
 The like, in case of Nonsuit {a'). 
 
 \As above, to the words " the said issue within mentioned," «nrf proceed:'] 
 And were ready to give their vei'dict in that behalf, but the said C. D., 
 being solemnly called, came not, nor did he further prosecute his said 
 suit against the said E. F. 
 
 CHAP. XV.— Sect. 1. 
 Writ of Quare Ivipedit. 
 
 Victoria, by the grace of God of the united kingdom of Great Britain 
 and Ireland queen, defender of the faith, &c., to the sheriff of N. greet- 
 ing: Command John, bishop of Chester, Mary D. widow, F. T. esq., 
 and M. H. clerk, that justly and without delay they permit L. D., to 
 present a fit person to the church of C, which is void, and in the gift of 
 the said L., as he saith, and whereof he complaineth that the aforesaid 
 bishop, Mary, F. and M., unjustly hinder him, and unless they shall so 
 do, and if the said L. shall give you security to prosecute his suit, then 
 suunnon by good summoners the said bishop, Mary, F. and M., that they 
 be before our justices at Westminster, on the morrow of the Holy Trinity, 
 to show why they will not do it, and have you there the summoners and 
 
 this writ. Witness ourself at Westminster, the day of , in the 
 
 year of our reign. 
 
 Quare impedit for L. D. 
 
 Warrant upon a Writ of Quare Impedit. 
 
 N. (to tvit.) A. B., esquire, sheriff of the county aforesaid, to H. B., 
 the younger, and G. C, my bailiffs, greeting : By virtue of her majesty's 
 writ of quare impedit, under the great seal of Great Britain, to me 
 
 (a) See Reg. Gen. H. T. 4 Will. 4.
 
 490 APPENDIX. 
 
 CHAP. XV. 
 
 Slid. I. 
 
 directed and delivered, I command you that you command John, bishop 
 of Chester, Mary D. widow, F. T. esquire, and M. II., clerk, that justly 
 and without delay they permit L. D., clerk, to present a fit person to the 
 
 church of , which is void, and in the gift of the said L., as he saith ; 
 
 and whereof he complaincth that the aforesaid bishop, Mary, F., and M., 
 unjustly hinder him : and unless they shall so do, then I command you 
 that you summon, by good summoncrs, the said bishop, Mary, F., and 
 M, that they be before her Majesty's justices at Westminster, on the 
 morrow of the Holy Trinity, to show why they will not do it. Given 
 
 under the seal of my office this day of , 18 — . 
 
 (Sad of office ) By the sheriff. 
 
 IT/ie txoo bailiffs named in the above warrant {or somebody for them), 
 must make out as many summonses as there are persons to be summoned. 
 The form is as follows ; and the bailiffs must both subscribe their names to 
 each summons ; and they must keep by them an examined copy of the sum- 
 monses, so as to be able to swear to it, f necessary .'] 
 
 Summons from the Bailiffs, in pursuance of a Warrant to them directed, 
 issued on a Quare Impedit. 
 
 By virtue of her majesty's writ of quare impedit, under the great seal of 
 Great Britain, to the sherifT of the county of N. directed, and by virtue 
 of the said sheriff's warrant thereupon, to us directed, we do hereby re- 
 quire and command you, John, bishop of Chester, Mary D., F. T,, esq., 
 and M. H., clerk, that ye justly and without delay permit L. D., clerk, 
 
 to present a fit person to the chiuxh of , which is void, and in the 
 
 gift of the said L., as he saith, and whereof he complaineth that ye, the 
 said bishop, Mary, F., and M., unjustly hinder him : and unless ye shall 
 so do, then we do hereby summon you, that ye be before her majesty's 
 justices at Westminster, on the morrow of the Holy Trinity, to show cause 
 
 why ye will not do it. Given under our hand this day of ■, 18 — . 
 
 To the Right Rev. Father in God, John, Lord '^ ,, „ • j 
 
 Bishop of Chester, Mary D., F. T., esq., and > q'^"-" ' i bailifTs. 
 
 M. H., clerk, and each and every of them. ) 
 
 Return of Summoris on Quare Impedit. 
 
 _, J , ,1 John Doe, 
 
 Pledges to prosecute J j^j^,^^^.^ j^^^^ 
 
 SH. B., the younger, 
 and 
 G. C. 
 
 By virtue of this writ to me directed, I have summoned the within 
 named bishop, Mary, F., and M., that justly, and without delay, they 
 permit the within named L. to present a fit person to the clmrch within 
 mentioned : and I have also summoned, by the good summoners above 
 named, the said bishop, Mary, F., and M., that they be before her ma- 
 jesty's justices at Westminster, on the morrow of the Holy Trinity, to show 
 why they will not do it, as by this writ I am commanded. 
 
 A. B., esquire, sheriff.
 
 APPENDIX. 
 
 Po7ie issued after the return of the Quare Impedit. 
 
 Victoria, by the grace of God of the united kingdom of Great Britain 
 and Ireland queen, defender of the faith, &c., to the sheriff of N., greet- 
 ing : We command you that you put, by sureties and safe pledges, Mary 
 D,, widow, F. T., esquire, and M. H., clerk, that they be before our jus- 
 tices at Westminster, on the morrow of All Souls, to answer us of a plea, 
 
 that they permit L. D. to present a fit person to the church of , 
 
 which is void, and in the gift of the said L., and whereof the said Mary, 
 F., and M., together with John, bishop of Chester, unjustly hinder the 
 said L.; and to show wherefore they were not, together with the said 
 bishop, in our court before our justices at Westminster, at a certain day 
 now past, as they have been summoned : and have you there the names 
 of the pledges, and this writ. Witness, Sir Thomas Wilde, knight, at 
 Westminster, the day of , in the year of om- reign. 
 
 491 
 
 CHAP. XV. 
 SECT. I. 
 
 Return indorsed on the Pone. 
 
 The answer of A. B., sheriff of the county of N. 
 
 Summoners of the within-named J H. B., the elder, 
 
 Mary D., F. T., and M. H. are ( H. B., the younger. 
 
 T,, J ( John Doe, 
 
 Pledges are J j^j^^^^.jj^^^_ 
 
 A. B., esquire, sheriff. 
 
 Warrant from the Sheriff upon the Pone. 
 
 N. (/o wit.) A. B., esquire, sheriff of the county aforesaid, to H. B., 
 the elder, and H. B., the younger, my bailiffs, greeting : By virtue of her 
 majesty's writ to me directed and delivered, I command you that you put, 
 by sureties and safe pledges, Mary D., widow, F. T., esquire, and M. H., 
 clerk, that they be before her majesty's justices at Westminster, on the 
 morrow of All Souls, to answer her inajesty in a plea, that they permit 
 
 L. D., clerk, to present a fit person to the church of , which is void, 
 
 and in the gift of the said L. ; and whereof the said Mary, F., and M., 
 together with John, bishop of Chester, unjustly hinder the said L. ; and 
 to show wherefore they were not, together with the said bishop, in her 
 majesty's court, before her majesty's justices at Westminster, at a certain 
 day now past, as they have been summoned, so that I may have there the 
 names of the pledges, and the said writ : and have you this, and so forth. 
 
 Given under the seal of my office, this day of , in the year of 
 
 our Lord 18 — . 
 
 (^Seal of office.) By the sherifT. 
 
 Distringas issued after the Return of the Pone. 
 
 Victoria, by the grace of God of the united kingdom of Great Britain 
 and Ireland queen, defender of the faith, &c., to the sheriff of N., greet- 
 ing : We command you that you distrain Mary D., widow, of all her lands 
 and chattels in your baihwick, so that neither she, or any for her, lay 
 hands upon them, until you have from us another precept, so that you 
 answer us of the issues thereof; and that you have her body before our 
 justices at Westminster, in eight days of St. Hilary, to answer us of a
 
 492 Al'l'ENDIX. 
 
 CHAi'. XV. plea, that she, together with John, hisliop of Chester, F. T., esquire, and 
 
 SECT. I.' M. H., clerk, permit L. D. to present a fit i)erson to the church of , 
 
 which is void, and in tlie gift of tlie said L., as lie saith, and to hear 
 
 judgment of her many defaults : and have you there this writ. Witness 
 
 Sir Thomas Wilde, knight, at Westminster, the day of , in the 
 
 year of our reign. 
 
 Relwji indorsed on the Distringas. 
 I humbly certify to the justices within written, that, by virtue of the 
 writ within contained, I have distrained the within-named Mary D., by 
 her lands and chattels in my bailiwick; and that I have issues on them 
 to the value of 40s.; and I further certify that the said Mary D, is not 
 found in my bailiwick. 
 
 A. B., esquire, sherifT. 
 
 If no Distress is made, the following should be the Sheriff's Return. 
 
 I humbly certify to the justices within written, that the within-named 
 Mary D. hath no lands or chattels in my bailiwick, whereby I could 
 cause her to be distrained, as I am within commanded ; neither is she 
 
 found within the same. 
 
 The answer of A. B., esquire, sheriff. 
 
 CHAP. XVI.— Sect. 1. 
 Warrant to Levy on the Great Roll. 
 
 N. {to wit.) A. B. esquire, sheriff of the county aforesaid, to I. S., 
 my bailiff, greeting : By virtue of the queen's writ to me directed, I com- 
 mand you that you omit not by reason of any liberty in my bailiwick, but 
 that you enter the same, and levy of the goods and chattels, lands and 
 tenements of the several persons named in the schedule hereunder written, 
 the several sums of money on them respectively charged, so that I may 
 have that money before the barons of the queen's Exchequer at West- 
 minster, from time to time as you shall levy the same ; and if the said 
 goods and chattels, lands and tenements, are not sufficient, then take the 
 said several persons by their bodies, and keep them safe until they shall 
 satisfy her majesty the said several debts; and in what manner you shall 
 execute this wan-ant, make appear to me, so that I may certify the same 
 to the said barons in one moatli from the day of Easter next ensuing. 
 
 Hereof fail not. Given under the seal of my office, the day of , 
 
 in the year of our Lord 1 8 — . 
 
 {Seal of office.) By the sheriff. 
 
 Of A. B. of, &c , because, &c. 
 
 Of C. D. of, &c., because, &c. 
 
 Warrant on the Summons of the Pipe. 
 N. {to wit.) A. B., esquire, sheriff of the county aforesaid, to 1. S., 
 my bailiff, greeting : By virtue of the queen's writ to me directed, I com- 
 mand you that you omit not by reason of any liberty within my bailiwick, 
 but that of the goods and chattels of the several persons in the schedule
 
 APPENDIX. 
 
 493 
 
 hereunder written named, you cause to be made the several sums of chap.xvi. 
 money, on them respectively charged, due to her majesty for the rents sect. i. 
 (and duties) therein particularly mentioned, so that I may have those 
 monies before the barons of her majesty's exclicquer at Westminster, on 
 
 next to come, there to be paid to her majesty. Hereof fail not. 
 
 Given under the seal of my office, this day of , in the year of 
 
 our Lord 18 — . 
 
 (Seal of office.) By the sheriff. 
 
 Of A. B. for the manor of, &c. 
 Of C. D. for one messuage, &c. 
 
 Warrant on the Su7}unons of the Green Wax. 
 N. (to wit.) A. B., esq., sheriff of the county aforesaid, to I. S., my 
 bailiff for this purpose only, greeting : By virtue of her majesty's writ to 
 me directed, I command you that you omit not by reason of any liberty 
 in my bailiwick, but that of the goods and chattels of the several persons 
 hereunder named you cause to be made the several sums of money on 
 them respectively charged, and that you summon them so that they be 
 and appear before the barons of the queen's Exchequer at Westminster, 
 
 in next to come. Hereof fail not. Given under the seal of my 
 
 office, this day of , 18 — . 
 
 (Seal of office.) By the same sheriff. 
 
 Of A. B., because, &c. 
 Of C. D., because, &c, 
 
 Returm to the Great Roll 
 
 I humbly certify to the barons within named, that, by virtue of this writ 
 to me directed, I have caused to be levied of the goods and chattels of the 
 several persons following the several sums hereinafter mentioned, that is 
 to say, of A. B., named in the twenty-seventh roll to this writ annexed, 
 the sum of 10/. ; of C. D., named on the back of the said twenty-seventh 
 roll, the sum of lOZ. ; of E. F., named on the twenty-eighth roll to this 
 writ also annexed, the sum of 5/. ; and of G. H., named in the twenty- 
 ninth roll to this writ also annexed, the sum of 51. : Which said sums I 
 have ready at the day and place within written, to pay to her majesty, as 
 within I am commanded. And I further certify, that the other persons 
 in the several schedules annexed named have not, nor have nor hath any 
 or either of them, any goods or chattels, lands or tenements, in my baili- 
 wick, whereby I can levy the several sums of money on them respectively 
 charged, as in and by the said writ I am directed and commanded. The 
 said several persons are not found in my bailiwick, nor are there any 
 executors of the last will and testament of them or either of them, neither 
 administrators of the goods, or heirs or possessors of lands of them, or 
 either of them, to whom I can give notice as within I am commanded. 
 The remainder of the execution of this writ appears in and by the inqui- 
 sition hereunto annexed. A. B., esquire, sheriff. 
 
 Inquisition to be annexed. 
 
 N. (to wit.) An inquisition indented, taken at in the county 
 
 aforesaid, on , the day of , in the year of the reign
 
 494 APPENDIX. 
 
 CHAP. XVI. of our sovereign lady Queen Victoria, and in the year of our Lord , 
 
 SECT. I. before me, A. B., esq., sheriff of the said county, by virtue of a writ of our 
 
 ~ lady tlie queen to me directed, and to this inquisition annexed, by the 
 
 oatlis of T. P., L. L., &c., twelve good and lawful men of my bailiwick, 
 who, being sworn and charged, upon their oaths say, that to the know- 
 ledge of the said jurors, the several persons in the several rolls or schedules 
 to this writ annexed named, or any of them, had not, on the several days 
 and times they became indebted to the crown, or at any time since, any 
 goods or chattels, lands or tenements, which can be found to be taken, 
 seized, or extended into the hands of her majesty. And the jurors afore- 
 said further say, that they know not whether the said several persons be 
 dead, or when or where they or any of them died ; nor did the said several 
 persons deceased, or any of them, to the knowledge of the said jurors, 
 die seised of any lands or tenements in the bailiwick of me the said sheriff, 
 so that they cannot appraise, nor can I the said sheriff take or seize any 
 such goods or chattels, lands or tenements as aforesaid, as by the said writ 
 is commanded. In witness whereof as well I the said sheriff, as the said 
 jurors, have to this inquisition set our hands and seals the day and year 
 first above written. 
 
 {Seal of office.) A. B., esquire, sheriff. 
 
 ( Twelve seals.) 
 
 Return of Process for Tenths or First Fruits. 
 To the barons within written I humbly certify, that I have levied and 
 received of the several persons in the schedule annexed mentioned the 
 several sums of money on them respectively charged, which I have ready 
 to be paid to her majesty's use, as within I am commanded. 
 
 A. B., esquire, sheriff. 
 
 Part levied and others not found. 
 
 I humbly certify to the barons within written, that, by virtue of this writ 
 to me directed, I have received of A. B. and C. D. the several sums of 
 money on them respectively charged in the schedules at the foot of this 
 writ mentioned, which said sums I have ready at the day and place 
 within written, to pay to her majesty, as by the said writ I am com- 
 manded. And I further certify, that the within named E. F. and G. H. 
 are not found in my bailiwick (or are departed this life). 
 
 A. B., esquire, sheriff. 
 
 Nulla Bona on the same. 
 
 I humbly certify to the barons within mentioned, that the several per- 
 sons at the foot of this writ named have not any goods or chattels, lands 
 or tenements, in my bailiwick, whereof I can levy the sums of money 
 upon them respectively charged, nor are they or either of them found in 
 my bailiwick. A. B., esquire, sheriff. 
 
 To the Mortuus Process. 
 
 I humbly certify that there are no heirs, executors or administrators of 
 the several persons in the schedule to this writ annexed named, nor any 
 of them, in my bailiwick, to whom I can give notice, as within I tim 
 commanded. The residue of the execution of this writ appears in the 
 inquisition hereunto annexed.
 
 APPENDIX. 495 
 
 CHAP. XVI. 
 
 Inquisition to he annexed. sect. i. 
 
 N. {to wit). An inquisition indented, taken at , in the county of 
 
 N. aforesaid, on , the day of , in the year of the 
 
 reign of our sovereign lady Queen Victoria, and in the year of our Lord 
 
 , before me, A. B., esq., sheriff of the said county, by virtue of the 
 
 writ of our lady the queen to me directed, and to this inquisition annexed, 
 by the oaths of I. L., E. S., &c., twelve good and lawful men of my baili- 
 wick, who being sworn and charged, on their oath say, that the several 
 persons in the schedule to the said writ annexed named, at the time of 
 their respective deaths, had not, nor had any or either of them, any goods 
 or chattels, lands or tenements, in my bailiwick, to the knowledge of the 
 said jurors. In witness whereof as well I the said sheriff as the said 
 jurors have to this inquisition set our hands and seals the day and year 
 first above written. A. B., esquire, sheriff. 
 
 Return of Distringas. 
 First, against Collectors. — Received and ready. 
 
 I humbly certify to the barons within mentioned, that I have received 
 
 of the within named C. D. the sum of • charged upon him, which 
 
 sum I have ready to pay as within I am commanded. 
 
 A, B., esquire, sheriff. 
 
 Received of one Collector, and Issues as to others, 
 
 I humbly certify to the barons within mentioned, that I have received 
 of C. D., collector of S., in the schedule to this writ annexed named, the 
 
 sum of charged upon him, which sum I have ready to pay, as within 
 
 is commanded. The issues set on the several other persons in the schedule 
 to this writ annexed appear in the margin of the said schedule. 
 
 A. B., esquire, sheriff. 
 
 Nihil. 
 
 The within-named C. D., and the rest of the persons named in the 
 schedule to this writ annexed, have not, nor hath eitlier of them, any 
 thing in my bailiwick, by which I can distrain them or any of them, nor 
 are they, or cither of them, found in my bailiwick, 
 
 A. B., esquire, sheriff. 
 
 Against Parishes. 
 Received of one Parish, and Issues on others. 
 
 By virtue of this writ to me directed, I do certify and return to the 
 barons of her majesty's Court of Exchequer, that I have received of the 
 inhabitants of the parish of W., in one of the schedules to this writ an- 
 nexed named, the sum of charged upon them for, &c., which said 
 
 sum I have ready to pay, as within I am commanded. The issues set on 
 the inhabitants of the several other parishes in the several schedules to 
 this writ annexed appear in the margin of the said schedules. 
 
 A. B., esquire, sheriff.
 
 '\9C) APPKNOIX, 
 
 Oil A I". XVI. 
 SLC'I . I. 
 
 Another Fonn. 
 Parish and Collectors. 
 
 By virtue, &c., I do certify and return, first, issues on the inhabitants 
 of the borough of S., in this writ annexed named, 'Si. lOs. ; that I have 
 
 received tlie sum of cliarged upon the inhabitants of the parisli of 
 
 H., in the hundred of L., for, &c., and first mentioned in the fourth sche- 
 dule to this writ annexed. And I return 40s. issues upon the inhabitants 
 of tlic parish of I., afterwards mentioned in the same schedule. And I 
 further certify and return that the several other persons named in the 
 schedule to this writ annexed have not, nor hath cither of them, any lands 
 or chattels in my bailiwick whereby I can cause them to be distrained, 
 nor are they or either of them found in tlie same. 
 
 A. B., esquire, sheriff. 
 
 Warrant on an Exxhequer Writ, in the nattire of a Sci. Fa. 
 
 N. (to wit.) A. B., esq., sheriff of the said county, to J. S. and J. M., 
 my bailiffs, greeting : By virtue of her majesty's writ to me directed and 
 delivered, I command you, that you give notice to T. H., of H., in the 
 county of N. aforesaid, shipowner, to be and appear before the barons of 
 
 her majesty's Exchequer, at Westminster, on the day of 
 
 instant, to show cause, if he can, why her majesty should not have exe- 
 cution against him for the sum of 2000/., upon a bond entered into by 
 G. R., master mariner, of S., in the county of D., and the said T. H., 
 
 jointly and severally to her majesty, bearing date the day of , 
 
 in the year of her majesty's reign ; and for so doing this shall be 
 
 your warrant. Given under the seal of my office this day of , 
 
 18—. 
 
 (Seal of office.) By the sheriff. 
 
 Swnmo7is upon the above Warrant. 
 
 By virtue of her majesty's writ to the sheriff of N. directed, and of the 
 said sheriff's warrant to us thereon, we do hereby give you notice to be 
 and appear before the barons of her majesty's Ex'^hequer, at Westminster, 
 on the day of instant, to show cause, if you can, why her ma- 
 jesty should not have execution against you for the sum of 2000/., upon a 
 bond entered into by G. R., master-mariner, of S., in the county of D,, 
 
 and you, jointly and severally, to her majesty, bearing date the day 
 
 of in the year of her said majesty's reign. Dated this 
 
 day of , 18—. 
 
 To Mr. T. H., of H., in the ) J. S. 
 
 county of N. J J. M. 
 
 Return of Scire Feci to the foregoing Writ. 
 
 By virtue of this writ to me directed, I have, by I. S. and J. M., 
 good and lawful men of my bailiwick, given notice to the within named 
 T. H., that he be and appear before the barons of her majesty's Exchequer, 
 at Westminster, on the day within mentioned, to show cause, if he can, 
 why her majesty should not have execution against him for the sum 
 within mentioned, as I am within commanded. 
 
 A. B., esquire, sheriff.
 
 APPENDIX. 497 
 
 {It is prudent to get the summoners to sign the following return, indorsed 
 on the warrant.') 
 
 We do hereby certify, that we have given notice to the within named 
 T. H. to be and appear before the barons of her majesty's Exchequer, 
 
 at Westminster, on the day of instant, to show cause, if he 
 
 can, why her majesty should not have execution against him for the sum 
 within mentioned, as we are commanded by the within warrant. Given 
 under our hands the day of , 18 — . 
 
 J. S. 
 
 J. M. 
 
 CHAP. XVI. 
 SECT. I. 
 
 Return of Nihil to a Sci. Fa. 
 
 The within-named C. D. hath nothing in my bailiwick by which I can 
 cause him to be summoned, neither is he found in the same. 
 
 A. B., esquire, sheriff. 
 
 (If it be out of the Exchequer, then say) 
 
 I humbly certify the barons within written, that the within named 
 C. D. (as above.) 
 
 Sect. 2. 
 Warrant on an Extent. 
 
 N. {to wit.) A. B., esquire, sheriff of the county aforesaid, to J. S., 
 my bailiff. By virtue of the queen's writ to me directed, I command you, 
 that without delay you take C. D. by his body, wheresoever he shall be 
 found in my bailiwick, so that I may keep him safely and securely in 
 
 prison till he shall make satisfaction to her majesty of the sum of £ > 
 
 due to her majesty for {this of course foltoivs the writ) duties on malt made 
 in Great Britain by the said C. D.; and that you do forthwith seize and 
 take the goods and chattels of the said C. D. in my bailiwick, and them 
 safely keep, so that I may cause them to be appraised, and taken into her 
 majesty's hands, and an inquisition to be taken, according to the com- 
 mand of the said writ. In what manner you shall execute this warrant 
 forthwith make known to me, so that I may return the same to the barons 
 of her majesty's Exchequer at Westminster. Given under the seal of 
 my office. 
 
 Dated the ■ day of . 
 
 {Seal of office.) By the sheriff. 
 
 Form of a Summons duces tecum, to a Witness to attend the Inquisition. 
 
 N. {to tvit.) To Mr. J. S. By virtue of her majesty's writ of extent 
 against C. D., to me directed, I summon and require you to be and appear 
 
 before me, or my under-sheriff, at the house of Mr. , known by the 
 
 sign of the Red Lion, in N., in my county, on the day of , 
 
 18 — , at o'clock in the fore- {or "after") noon, precisely, to give 
 
 evidence on the part of her majesty, touching matters then and there to 
 be inquii-ed of, by a jury of the country, on the said extent; and that you 
 then and there produce and give in evidence before me, or my under- 
 sheriff, and the said jury, on the said extent, all and every mortgage and 
 other deeds, assignments, papers and writings in your custody or power, 
 
 K K
 
 498 APPENDIX. 
 
 CHAP. XVI. relating to any estate, messuages, lands, tenements or hereditaments 
 SECT. II. wherein the said C. D. hatli, or claims to liave, or lately had, or claimed 
 
 to have, any interest, property, claim or demand whatsoever, either at law 
 
 or in equity : and also every bond and bonds, bill and bills of exchange, 
 promissory note and promissory notes, and all and every security and 
 securities for money, and all papers and writings in your custody or 
 power, belonging to the said C. D., or wherein the said C. D. hath, or 
 claims to have, or lately had, or claimed to have, any interest, property, 
 claim, or demand ; and also all and every book and books, letter and 
 letters, invoice and invoices, bill and bills of parcels, bill and bills of 
 lading ; and all and every other paper and papers in your custody or 
 power, wherein or whereon is or are written any entry, minute or memo- 
 randum, entries, minutes or memorandums, respecting or relating to any 
 goods, wares, merchandize, or commodities whatsoever, sold or delivered 
 by any person or persons to the said C. D., or sold or delivered by the 
 said C. D. to any person or persons whatsoever, or wherein the said C. D. 
 hath, or claims to have, or lately had, or claimed to have, any interest, 
 property, claim or demand whatsoever ; or respecting or relating to any 
 sum or sums of money now or lately due or owing, or claimed to be now 
 or lately due or owing from any person or persons whatsoever to the said 
 C. D., or wherein the said C. D. hath, or claims to have, or lately had, 
 or claimed to have, any interest, property, claim or demand whatsoever ; 
 and hereof fail not, as you will answer the contrary at your peril. Dated 
 
 this day of , 18 — . 
 
 (Seal of office.) A. B. esquire, sheriff. 
 
 Melurn to a Wj-it of 'Extent, where Defendant is taken, and Goods 
 levied. 
 
 By virtue of this writ to me directed, I have taken the within named 
 C. D., and keep him safely and securely in prison, as within I am com- 
 manded. The residue of the execution of this writ appears by the inqui- 
 sition hereunto annexed. 
 
 The answer of A. B. esquire, sheriff, 
 
 Helurn that Goods are taken, and Non est Inventus as to Defendant. 
 
 The within named C. D. is not found in my bailiwick. The residue 
 of the execution of this writ appears by the inquisition hereunto annexed. 
 
 The answer of A. B. esquire, sheriff. 
 
 Return of Non est Inventus, and that Defendant has no Lands or 
 Goods. 
 
 The within named C. D. hath not, nor have any persons, nor hath any 
 person, to his use, or in trust for him, any lands or tenements, goods or 
 chattels, debts, credits, specialties or sums of money in my bailiwick, nor 
 is he found in the same. 
 
 The answer of A. B. esquire, sheriff.
 
 APPENDIX. 499 
 
 Return that Defendant is taken, but hath no Lands or Goods. chap. xvi. 
 
 By virtue of this writ to me directed, I have taken the within named 
 C. D., and keep liim safely and securely in prison, as within I am com- 
 manded ; but the said C. D. hath not, nor have any persons nor hath any 
 person to his use, or in trust for him, any lands or tenements, goods or 
 chattels, debts, credits, specialties, or sums of money in my bailiwick. 
 
 The answer of A. B. esquire, sherifF. 
 
 SECT. 
 
 Form of Inquisition on an Extent, with various findings of different sorts 
 of Freehold Interest, and Personal Estates and Effects. 
 
 N. {to wit.) An inquisition indented, taken at the house of J. L., 
 known by the name or sign of the Queen's Head Inn, in the town of M., 
 
 in the said county, the day of , in the year of the reign 
 
 of our sovereign lady queen Victoria, and in the year of our Lord 18 — , 
 before me, A. B. esquire, sherifF of the said county; by virtue of her 
 majesty's writ of non omittas capias ad satisfaciendum and extent, issued 
 out of her majesty's court of exciiequer at Westminster, bearing teste the 
 
 day of , in the year of her said majesty's reign, directed 
 
 to the sherifF of the county of N., and to this inquisition annexed, on 
 
 the oaths of (the names of the twelve jurors), gooi and lawful men of my 
 
 bailiwick ; who, being sworn and charged to inquire touching the matters 
 
 in the said annexed writs mentioned, do upon tlieir oaths say, that the {t) 
 
 said C. D., in the said writ named, was (m), on the day of issuing the said ut. Finding 
 
 writ, seised in his demesne as of fee of and in a certain messuage or '^^l^"^l'^^^ 
 
 dwelling house, with the appurtenances, situate and being at , in the freehold. 
 
 said county, in the tenure and occupation of , esquire, of the clear 
 
 yearly value of £ (x), in all issues thereof beyond reprizes: And 2nd, Seised 
 
 also of and in six acres by estimation of arable land, two acres of meadow, 
 and two acres of pasture, situate, lying and being in the township, fields 
 or places of N., in the said county, and now or late in the tenure or oc- 
 cupation of , gent., of the clear yearly value of £ (3/), in all issues 
 
 thereof beyond reprizes : And also of and in all that messuage or tene- 3d, Finding 
 ment, with outhouses, buildings, malting-office, kilns, kiln-houses, yards, '^^l^"^^ll^\^^ 
 gardens and appurtenances, containing by estimation one acre and a half, ofamessn^ge, 
 in N., in the said county, late in the occupation of the said C. D., of the &c., subject 
 yearly value of 20/. (z), or thereabouts, in all issues thereof beyond '" mongage. 
 reprizes; subject {a) to a certain term of 1000 years, created by a certain 
 
 (t) The finding of real estate be- writ), followed by the words "on 
 
 longing to the defendant must have the which day the said C. D. became and 
 
 following requisites : Isl, a correct de- was first indebted to her majesty," must 
 
 scription of the estate (whether farms, (in conformity to the mandatory part 
 
 lands, houses, &c.) and the parish or of the extent issuing on any such spe- 
 
 place where situated : 2nd, a sum of ciaity), be inserted instead of the 
 
 money, as its yearly value, must be words in italics, 
 
 found: 3d, a seizure into the king's (x)Theexactamountisnot material ; 
 
 hands. it is, however, necessary to find some- 
 
 (m) If the extent issues on a judg- thing as the yearly value of the lands, 
 
 ment, or on a bond, the day and year (y) See last note. 
 
 of the date of the bond, or other (2) See note (x). 
 
 specialty (which day and year will (a) If it be questionable whether 
 
 always be found in the body of the the mortgage can prevail against the 
 
 K R 2
 
 500 APPENDIX. 
 
 CHAP. XVI. indenture, bearing date the day of in the year of our Lord 
 
 SECT. 11. , and by assignment now vested in M. D., spinster, as surviving exe- 
 
 cutrix named in the will of M. D., deceased, for securing the sum of 
 
 200/. and interest; also subject to a certain other mortgage thereon to 
 J. II. of S., in the said county, farmer, for securing the sum of 200/. and 
 lawful interest to the said J. H., his executors, admini.strators and assigns, 
 
 by a certain indenture, bearing date the day of , in the year of 
 
 4ih, Finding our Lord : And also of the reversion expectant on the death of , 
 
 deic-iidar.i widow, aged years or thereabouts, of and in the tenements follow- 
 
 rele*rlion"in i"g ; that is to say, of and in a messuage or dwelling-house, with a garden 
 fee expeciant or orchard thereto belonging, situate, lying and being in the parish of K., 
 
 ofa le^iiani tor '" *^'^ ^^^^ county of N., in the occupation of , gentleman, of the clear 
 
 liie inceiiain yearly value of£ , in all issues thereof beyond reprizes; and of and 
 
 tenements. j„ ^j^g other messuage or dwelling-house, with a garden and orchard 
 thereto adjoining, situate, lying and being in the parish of N., in the said 
 
 county of N., in the occupation of , gentleman, of the clear yearly 
 
 Finding de- value of £ , in all issues thereof beyond reprizes: And also in his 
 
 o'i"ib'!;"undi-'' demesne as of freehold, for the term of his natural life, of, in and to an 
 vided moiety Undivided moiety of a certain messuage, lands and hereditainents situate 
 of a farm for ^j jvf,^ jn the said county of N., with the appurtenances, containing about 
 '^*' fifty acres of pasture land, now on the day of taking this inquisition in 
 
 the tenure or occupation of , the whole of the said estate being of 
 
 Finding that the clear yearly value of £ , in all issues thereof beyond reprizes : And 
 
 defendant had ^jjg jm-ors aforesaid, upon their oath aforesaid, further say, that the said 
 farmo'f"'a'par- C. D., in the said writ named, had, on the day of issuing the said writ, a 
 ticoiar freehold farm, consisting of a messuage, a tenement, and fifty acres of 
 
 name (b). freehold land, with the appurtenances called , situate, lyuig and being 
 
 in the parish of in the said county, now or late in the tenure or 
 
 occupation of , of the clear yearly value of £ , in all issues thereof 
 
 Seiznre of beyond reprizes: And which said several messuages or tenements, lands 
 freehoi<is into g^j undivided moiety respectively, with the appurtenances, I, the said 
 handT""*"^' sheriff, have seized into her majesty's hands, as by the said writ is corn- 
 Finding de- manded: And the jurors aforesaid, upon their oath aforesaid, further 
 feiidani pos- say, that the said C. D., in the said writ named, was on the day of issuing 
 8e9>ed oj a |.j^g ggjj ^^,j.j|. possessed as of his own proper goods and chattels of and in 
 hmilel'&c. a (c) messuage or dwelling-house, warehouses and shop, situate and being 
 
 granted by a jn the parish of , in the town of ■ aforesaid, late in the occupa- 
 
 lease to hira- ^j^^ of the Said C. D., for the remainder then to come and unexpired of 
 a certain term of twenty-one years by one J. H , late of, &c., to the said 
 
 C. D., granted and demised by indenture of lease, bearing date the 
 
 day of , in the year of our Lord , and made between the said 
 
 J. H. of the one part, and the said C. D. of the other part: And the 
 jurors aforesaid do find the said remainder of the said term to be of the 
 value of £ {d), and do appraise the same at the sum of £ : And 
 
 extent, the sheriff tnay leave it open case ; Godb. Rep. 289. 
 to be litigated between the parlies in (c) It is requisite that the finding 
 the Court of Exchequer : it should be should particularise the property found 
 staled that it was claimed to be sub- as far as possible, 
 jecl. (d) The value must be found, al- 
 (b) If the title deeds to defendant's though the exact value is not mate- 
 property cannot be got at, so as to al- rial ; in finding freehold property the 
 low the finding of the jury to be pre- annual value is to be found; in chat- 
 cise, the finding may be according lo tels, the full value. 
 the adjudication in Sir Edward Coke's
 
 APPENDIX. 
 
 501 
 
 the jurors aforesaid, on their oath aforesaid, further say, that the said chap, xvi. 
 C, D., in the said writ named, was on the day of issuing the said writ pos- sect, ir. 
 sessed as of his own proper goods and chattels of and in the remainder pin^jng ^e- 
 to come and unexpired of a term of sixty-one years, which did commence fendant pos- 
 
 on the day of , 18—, granted by indenture of lease, bearing f^^'f„f'^^r- 
 
 date the day of , 18 — , made between E. P. &c. of the one tain premises, 
 
 part, and the said'C. D., in the said writ named, of and in, &c. (describe ^"''J'^^^jj'",^. 
 the premises^, subject to the covenants in the said indenture contained, ygnamj. 
 and the payment of the rent of a pepper corn for the first year, and at 
 the yearly rent of 28/. during the remainder of the said term : And the 
 jurors aforesaid do find the said remainder of the said term to be of the 
 
 value, and do appraise the same at the sum of £ : And the jurors 
 
 aforesaid, upon their oath aforesaid, further say, that the said C. D., in 
 the said writ named, was on the day of issuing the said writ possessed, 
 as of his own proper goods and chattels, of and in the remainder to 
 come and unexpired of and in a certain term of twelve years or there- 
 abouts of and in a certain malt house, situate at , in the said county: 
 
 And the juroi-s aforesaid do find the said remainder of the said last 
 mentioned term to be of the value, and do appraise the same at the 
 sum of five shillings : And the jurors aforesaid, on their oath aforesaid, Findio? de- 
 further say, that the said C. D., in the said writ named, was, on the sessed" of"prrt 
 day of issuing the said writ, possessed as of his own proper goods and ofiheuiensiU 
 chattels of and in seven-sixteenth parts or shares, tlie whole into sixteen f^adeoTbrew- 
 equal parts or shares to be divided, of and in the brewing vessels and house, 
 utensils for brewing, and of the materials and stock in trade of and be- 
 longing to a certain brewhouse for the brewing and malting of beer, ale 
 
 and worts, situate and being in or near street, in the parish of , 
 
 in the said county of : And the jurors aforesaid do find the said last Finding malt- 
 mentioned parts or shares of the said C. D. to be of the value of, and do &f. (g^"^' *' 
 
 appraise the same at the sum of £ : And the jurors aforesaid, on 
 
 their oath aforesaid, further say, that the said C, D. in the said writ 
 named, was, on the day of issuing the said writ, possessed as of his own 
 proper goods and chattels of and in the goods and chattels following, at 
 
 and in his the said C. D.'s malthouse, in or near street, in the town 
 
 of , in the said county, a large corn screw, fifty sacks {enumerate the 
 
 different articles there), and there being malting vessels and utensils for 
 malting, and having been respectively made use of by him the said C. D. 
 for and in the making of malt in the said malthouse, and also of and in 
 fifty quarters or thereabouts of barley {here enumerate the barley, 7iialt, 
 4-c.), the said several quantities of malt and barley respectively being on 
 
 the said day of , in the said year of the reign aforesaid, 
 
 and on the said day of taking this inquisition, in the custody and pos- 
 session of the said C. D., then and there being a maker of malt, and the 
 said barley being then and there materials for the making of malt by him 
 the said C. D., then and there being such maker of malt as aforesaid; 
 and also of and in the following quantities of fuel for the drying and 
 making malt, that is to say, about bushels or thereabouts of Welch 
 
 (e) See 4 & 5 Vict. c. 20, s. 24, rears and penalties chargeable upon 
 
 enacting that all goods subject to du- or owing by llie person carrying on 
 
 ties of excise, and all maierials, ma- the trade, while in his custody or pos- 
 
 chinery, vessels, and implements used session, or that of any person in trust 
 
 in their manufacture, shall be liable for him. And see Attorney -General 
 
 to and chargeable with all duties, ar- v. Trueman, 11 M. & W. 694.
 
 502 
 
 APPENDIX. 
 
 CHAP. XVI. 
 SECT. II. 
 
 Seizure into 
 the queen's 
 bands. 
 
 Finding de- 
 fendant pos- 
 sessed of 
 goods spe- 
 citied in a 
 schedule. 
 
 Finding of a 
 share in a 
 ship. 
 
 Finding of a 
 bond entered 
 into by a 
 third person 
 and become 
 forfeited. 
 
 Finding a 
 bond, where 
 it cannot be 
 ascertained 
 what is due 
 for principal 
 and interest. 
 
 coals, about bushels or thereabouts of charred pit coal or cinders, 
 
 and about twenty cart loads of beech billet wood : And the jurors afore- 
 said do find the said malting vessels and utensils for malting to be of the 
 
 value, and do appraise the same at the sum of £ ; the said barley 
 
 in operation for making of malt to be of the value, and do appraise the 
 
 same at the sum of £ ; the said dry barley to be of the value, and 
 
 do appraise the same at the sum of £ ; the said malt dust to be of 
 
 the value, and do appraise the same at the sum of £ : All which said 
 
 residues of terms of years, goods and chattels, I the said sheriff have 
 taken and seized into her majesty's hands, as by the said writ is com- 
 manded. 
 
 And the jurors aforesaid, on their oath aforesaid, further say, that the 
 said C. D., in the said writ named, was, on the day of issuing the said 
 writ, also possessed as of his own proper goods and chattels of and in the 
 several goods and chattels mentioned in the schedule (g) hereunto an- 
 nexed, marked with the letter A., and the values whereof respectively are 
 severally and respectively mentioned in the said schedule, and do amount 
 in the whole, and the jurors aforesaid do appraise the same at the sum of 
 
 £ : And the jurors aforesaid, upon their oath aforesaid, further say, 
 
 that the said C. D. was, on the day of issuing the said writ, possessed of 
 and in one-eighth part or share, the whole into eight equal parts or shares 
 
 to be divided, of and in a certain ship or vessel called the , whereof 
 
 then or lately theretofore was master; and the jurors aforesaid do 
 
 find the said eighth part or share of the said ship or vessel to be of the 
 
 value and do appraise the same at the sum of £ : And the jurors 
 
 aforesaid, upon their oath aforesaid, further say, that J. K. of, &c. in the 
 
 county of, &c. merchant, on the day of , in the year of our 
 
 Lord , by his bond (h) or writing obligatory bearing date the day 
 
 and year last aforesaid, sealed with his seal, and as his deed delivered, 
 acknowledged himself to be held and firmly bound to the said C. D. in 
 the sum of £1000 of lawful money of Great Britain, to be paid to the 
 said C. D. whenever he the said J. K. should be thereunto afterwards 
 requested, with a condition thereunder written for the payment by the 
 said J. K. to the said C. D., his executors, administrators or assigns, of 
 
 the sum of £500, with lawful interest for the same, on the day of 
 
 , in the said condition mentioned, and long since past ; which said 
 
 sum of £ , in the said condition mentioned, with lawful interest for 
 
 the same, was not paid or satisfied according to the said condition, but 
 on the contrary thereof was, on the day of issuing of the said writ, un- 
 paid, and that the said writing obligatory, and the said penalty contained 
 therein, then was forfeited, due and payable to the said C. D. : And the 
 jurors aforesaid, upon their oath aforesaid, further say, that J. K. of, &c. 
 
 in the county of &c. merchant, on the day of , in the year of 
 
 our Lord , by his bond or writing obligatory sealed with his seal, 
 
 bearing date the same day and year last aforesaid, acknowledged himself 
 to be held and firmly bound to the said C. D. in the sum of £1000 of 
 lawful money of Great Britain, payable at a day long since past, and that 
 
 (g) If the goods are numerous, it 
 is as well to lefer to a schedule an- 
 nexed, as is done here. 
 
 (/i) The forms of findings here given, 
 of debts due to defendant, may easily 
 be filled up, if debts in the second or 
 
 third degree be found, by merely al- 
 leging that defendant's debtor's debtor 
 is indebted to defendant's debtor, ac- 
 cording to any of the forms here 
 given.
 
 APPENDIX. 
 
 503 
 
 on the day of issuing the said writ, the said sum of £1000 was unpaid : chap. xvi. 
 And the jurors aforesaid, upon their oath aforesaid, further say, that sect, ii. 
 J. K. late of, &c. in the said county, mercliant, was, on the day of issuing pj^^j^g ^ 
 the said writ, indebted to the said C. D. in the sum of £500 upon a cer- person in- 
 
 tain bill of exchange for that sum, bearing date the day of — ^-, in ;^^^]'^^^^»'„f 
 
 the year of our Lord , drawn by one E. F. upon him the said J. K., ^ ^iii of ex- 
 
 and payable to him the said C. D. {or, if indorser, " to L. M.") thirty change to 
 days after the date thereof, and which said bill of exchange was duly ac- ^^ p^ye"_'' 
 cepted by him the said J. K. (if the defendant was indorser of the bill, 
 say here, " and was afterwards, and before the issuing of the said writ, 
 duly indorsed and delivered by the said L. M. to the said C. D.") whereby 
 
 the said J. K. became liable to pay to the said C. D. the sum of £ 
 
 mentioned in the said bill of exchange, according to the tenor and effect 
 of the said bill of exchange and his said acceptance thereof, and that the 
 said sum of £ was, on the day of issuing the said writ, wholly un- 
 paid. 
 
 [In finding an indorser indebted, the same as the last form, varying only Finding a 
 as follows:'] Upon one G. H. and payable to J. K. or order thirty days P^^^';,^^'^'^,^ 
 after sight thereof; which said last mentioned bill of exchange was after- ^ bill of ex- 
 wards and before the issuing of the said writ, seen and duly accepted by ci'»"S| '"- 
 the said G. H., and was afterwards and before the issuing of the said writ, defendant, 
 duly indorsed and delivered by the said J. K. to the said C. D. ; and was 
 afterwards and when the said sum of £500 became due and payable, 
 according to the tenor and effect of the said bill of exchange, and of the 
 said acceptance thereof, and before the issuing of the said writ, shown 
 and presented to the said G. H. for payment of the said sum of £500; 
 but the said G. H. then and hitherto wholly neglected and refused to pay 
 the same, whereof the said J. K. had notice. 
 
 And the jurors aforesaid, upon their oath aforesaid, further say, that Finding of a 
 I. K. late of N. in the county of N., merchant, was, on the day of issuing P^^^'^X^n 
 
 the said writ, indebted to the said C. D. in the sum of £ upon a payable lo 
 
 certain note in writing, commonly called a promissory note, made by the defendant. 
 
 said I. K. bearing date the 'day of , in the year of our Lord 
 
 , by which note the said I. K. promised to pay to the said C. D. or 
 
 his order the sum of £500, on demand, for value received, and that the 
 said sum of £500 was on the day of issuing the said writ wholly unpaid : 
 And the jurors aforesaid, upon their oath aforesaid, further say, that the Finding de- 
 said C, D. was, on the day of issuing the said writ, possessed as of his [p",'!.';"^,/""' 
 own proper goods and chattels of and in two certain notes in writing, bank notes, 
 commonly called Bank of England notes, by one of which notes the go- 
 vernor and company of the Bank of England promised to pay to Mr. 
 Matthew Marshall or bearer, on demand, the sum of £20; by the other of 
 which notes the said governor and company promised to pay to Mr. 
 Matthew Marshall or bearer, on demand,the sum of £5 ; the said notes being 
 in full force and of the value of £20 and £5 respectively : And the jurors Finding de- 
 aforesaid, upon their oath aforesaid, further say, that the said C. D., on ^^^^I.^^P"'" 
 the day of issuing the said writ, was possessed of and in, and entitled to s,oek in the 
 or (" the reversion after the death of L. M. of and in") £5000 interest or funds, siand- 
 share in the capital or joint stock three per cent, consolidated annuities, "!fj"^f ^ 
 transferable at the Bank of England, and now standing in the name of trusiee. 
 I. K. in the books of the governor and company of the Bank of England, 
 and that the said I. K. was, on the day and year last aforesaid, a trustee 
 for the said C. D. with respect to the {or " said reversion of and in the
 
 504, 
 
 APPENDIX. 
 
 CHAP. XVI. 
 SECT. II. 
 
 Finriing de- 
 fenilant pos- 
 «e«8e(i of 
 money. 
 Finding part- 
 ners indeblfd 
 to dplen'lant 
 lor money 
 had and re- 
 ceived tu his 
 use. 
 
 Finding a 
 person in- 
 debted to de- 
 fendant for 
 money lent. 
 Finding a 
 person in- 
 debted to de- 
 fendant for 
 money paid, 
 laid out and 
 expended by 
 defendant. 
 Finding a 
 person in- 
 debted for 
 goods sold 
 and delivered. 
 That defend- 
 ant's bankers 
 are indebted 
 to hini for the 
 balance of 
 cash in band. 
 That another 
 person is 
 indebted for 
 the balance 
 of an account. 
 Finding se- 
 veral persons 
 indebted, the 
 names, &c. 
 particularised 
 in a schedule 
 annexed. 
 Seizure into 
 queen's 
 hands. 
 
 Conclusion. 
 
 said interest") said annuities, and that (or " tlie said reversion of and 
 
 in") the said interest or sliare is wortli to be sold the sum of £ (J) : 
 
 And the jurors aforesaid, upon their oatli aforesaid, further say, that the 
 said C. D. was, on the day of issuing tlie said writ, possessed as of his 
 own proper money, goods and chattels of the sum of £500 of lawful 
 money of Great Britain, in monies nutiibercd : And the jurors aforesaid, 
 
 upon their oath aforesaid, further say, that J. II. and J. L. of street, 
 
 London, malt factors, were, on the day of issuing the said writ, indebted 
 to the said C. D. in the sum of £400 by thein the said J. 11. and J. L. 
 had and received to and for the use of the said C. D. : And that J. R. 
 of , in the said county of , gentleman, was, on the day of issu- 
 ing the said writ, indebted to the said C. D. in the sum of £400 for so 
 much money before that time lent and advanced by the said C. D. to the 
 said J. R. at his special instance and request : And that J. R. was, on 
 the day of issuing the said writ, indebted to the said C. D. in the sum of 
 £400 for so much money before that time paid, laid out, and expended 
 by the said C. D. to and for the use of the said C. D., at his special in- 
 stance and request: And that J. R. of , in the said county of , 
 
 merchant, was, on the day of issuing the said writ; indebted to the said 
 C. D. in the sum of £400 for divers goods, wares and merchandize before 
 that time sold and delivered by the said C. D. to the said J. R. : And 
 
 that , of aforesaid, bankers, were, on the day of issuing the 
 
 said writ, indebted to the said C. D. in the sum of £400, being the ba- 
 lance of cash in their hands as bankers to the said C. D. : And that J. R. 
 
 of , in the county of , was, on the day of issuing the said writ, 
 
 indebted to the said C. D. in the sum of £ , being the balance of an 
 
 accotmt, before the issuing of the said writ, made up, stated and settled 
 between the said C. D. and J. R. : And the jurors aforesaid, upon their 
 oath aforesaid, further say, that the several persons named in the sche- 
 dule to this inquisition annexed, marked with the letter B., were, on the 
 day of the issuing of this writ, severally and i-espectively indebted to the 
 said C. D. in the several suins of money set against their respective 
 names, amounting in the whole to the sum of £500, for goods, wares and 
 merchandize by the said C. D. before that time sold and delivered to the 
 said several persons respectively : All which said goods and chattels, debts, 
 sum and sums of money, I the said sheriff have taken and seized into 
 the hands of her said majesty, as by the said writ commanded : And the 
 jurors aforesaid, upon their oath aforesaid, further say, that the said C. D. 
 in the said writ named, had not, nor hath any person or persons to his 
 use, or in trust for him, on the day of issuing the said writ, or at any- 
 time since, any lands or tenements, or any goods, chattels, debts, credits, 
 specialties or sums of money in my bailiwick, save as hereinbefore set 
 forth, to the knowledge of the said jurors, which can be extended, ap- 
 praised, taken or seized into her majesty's hands, as by the said writ is 
 commanded. In witness whereof, as well I the said sheriff as the said 
 jurors, to this inquisition have set our respective seals the day, year and 
 place above written. 
 
 A. B., esquire. 
 {Seal of office.) {tivclve seals.) 
 
 (i) If the stock is in defendant's own name, it should be so slated, and the 
 words in italics left out.
 
 APPENDIX. 
 
 505 
 
 CHAP. XVI. 
 
 Warrant on a Venditioni Exponas of Goods taken under an Extent. sect. ii. 
 
 N. (to wit.) A. B., esquire, sheriff of the said county, to J. S. and 
 J. M., my bailiffs, greeting: By virtue of her majesty's writ to me di- 
 rected and deUvered, I command you, and each of you, that you forth- 
 with sell, or cause to be sold, the several goods and chattels in the sche- 
 dule hereunto annexed named (being the proper goods and chattels of 
 C. D.), and every part thereof, for the best price or prices you can get for 
 the same : but at least for the sum of 3,372/. 7s. 7d., at which the same 
 ■were appraised, upon the oath of W. B., and others, lawful men of my 
 bailiwick, by an inquisition taken at the house of Mr. G. W., known by 
 
 the name of, &c., the day of last, before Sir T. S., baronet, 
 
 late sheriff of the said county, by virtue of her majesty's writ of imme- 
 diate extent, issued out and under the seal of her majesty's Court of Ex- 
 chequer, directed to the said Sir T. S., late sheriff as aforesaid, against 
 the said C. D., his estate and effects, so that I may have the money to 
 arise from the sale thereof before the barons of her majesty's Exchequer 
 
 at Westminster, on the day of next, to be then and there paid 
 
 to her majesty's use; and that you have this, and so forth. Given under 
 the seal of my office, this day of . 
 
 ( Seal of office. ) By the sheriff. 
 
 CHAP. XVII. — Sect. I. 
 
 6 Geo. IV. c. 50. 
 
 An Act for consolidating and amending the Laws relative to Jurors and 
 
 Juries. 
 
 Whereas the laws relative to the qualification and summoning of 
 jurors, and the formation of juries in England and Wales, are very nu- 
 merous and complicated, and it is expedient to consolidate and simplify 
 the same, and to increase the number of persons qualified to serve on 
 juries, and to alter the mode of striking special juries, and in some other 
 respects to amend the said laws: be it therefore enacted by the king's 
 most excellent majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons, in this present parliament assem- 
 bled, and by the authority of the same, that every man, except as herein- Qualification 
 after excepted, between the ages of twentv-one years and sixty years, re- ^* J'l''"'.' .'" 
 
 ... . > ' . T-, 1 1 1 1 "n 1 • 1 • • England la 
 
 sidmg in any county in England, who shall have in his own name or in superior 
 
 trust for him, within the said county, ten pounds for the year above re- courts, as- 
 
 prizes, in lands or tenements, whether of freehold, copyhold, or customary s'on's onhe'" 
 
 tenure, or of ancient demesne, or in rents issuing out of any such lands peace. (See 
 
 or tenements, or in such lands, tenements, and rents taken together, in ig.^,? El^' 
 
 fee simple, fee tail, or for the life of himself or some other person ; or c. 6; 4 & 5* 
 
 who shall have within the same county twenty pounds by the year above w. & M. o. 
 
 reprizes, in lands or tenements held by lease or leases for the absolute gJo! Ilf c.25 
 
 term of twenty-one years, or some longer term, or for any term of years s. 15. ' '
 
 506 APPENDIX. 
 
 CHAP. XVII. determinable on any life or lives ; or who beinj^ a householder shall be 
 SECT. I. rated or assessed to the poor rate, or to the inliabited house duty in the 
 ' county of" Middlesex, on a value of not less than tliirty pounds, or in any 
 
 other county on a value of not less than twenty pounds, or who shall oc- 
 cupy a house containing not less than fifteen windows, shall be qualified 
 and shall be liable to serve on juries for the trial of all issues joined in 
 any of the king's courts of record at Westminster, and in the superior 
 courts, both civil and criminal, of the three counties palatine, and in all 
 courts of assize, nisi prius, oyer and terminer, and gaol delivery, such 
 issues being respectively triable in the county in which every man so 
 qualified respectively shall reside, and shall also be qualified and liable to 
 serve on grand juries in courts of sessions of the peace and on petty 
 juries for the trial of all issues joined in such courts of sessions of the 
 peace, and triable in the county, riding, or division in which every man 
 so qualified respectively shall reside ; and that every man (except as 
 hereinafter excepted) being between the aforesaid ages, residing in any 
 ^"vvm"''°" county of Wales, and being there qualified to the extent of three-fifths 
 (See 4 & 5 of any of the foregoing qualifications, shall be qualified and shall be liable 
 W. & M. c. to serve on juries for the trial of all issues joined in the courts of great 
 25, 3. 15.) sessions, and on grand juries in courts of sessions of the peace, and on 
 petty juries for the trial of all issues joined in such courts of sessions of 
 the peace, in every county of Wales, in which every man so qualified as 
 last aforesaid respectively shall reside. 
 Exemptions II. Provided always, and be it further enacted, that all peers; all 
 t^roin serving judges of the king's courts of record at Westminster, and of the courts 
 (See 1 w. & of great session in Wales ; all clergymen in holy orders ; all priests of 
 M. c. 18, s. the Roman Catholic faith, who shall have duly taken and subscribed the 
 C.44- si'ceo! oaths and declarations required bylaw; all persons who shall teach or 
 3, c 32, s. 8 ; preach to any congregation of Protestant dissenters, whose place of meet- 
 is'-^'^'^sl' '^ "^S ^^ *^"'y registered, and who shall follow no secular occupation except 
 that of a schoolmaster, producing a certificate of some justice of the peace 
 of their having taken the oaths, and subscribed the declaration required 
 by law; all Serjeants and barristers at law actually practising; all mem- 
 bers of the society of doctors of law, and advocates of civil law actually 
 practising; all attorneys, solicitors, and proctors, duly admitted in any 
 court of law or equity, or of ecclesiastical or admiralty jurisdiction, ia 
 which attorneys, solicitors, and proctors have usually been admitted, actu- 
 ^ ally practising, and having duly taken out their annual certificates; all 
 
 c". eVls^Geo! officers of any such courts actually exercising the duties of their respective 
 2, c. 15, s. 10. offices; all coroners, gaolers, and keepers of houses of correction; all 
 ITm^ t \^ members and licentiates of the Royal College of Physicians in London 
 55 Geo. 3, c. actually practising; all surgeons being members of the Royal Colleges of 
 164.; Surgeons in London, Edinburgli, and Dublin, and actiially practising; 
 
 all officers in his majesty s navy or army on full pay; all pilots licensed 
 by the Trinity House of Deptford Strond, Kingston-upon-Hull, or New- 
 castle-upon-Tyne, and all masters of vessels in the buoy and light ser- 
 vice, employed by either of those corporations, and all pilots licensed by 
 the Lord Warden of the Cinque Ports, or under any act of parliament or 
 charter for the regulation of pilots of any other port ; all the household 
 servants of his majesty, his heirs and successors ; all officers of customs 
 and excise ; all sheriff's officers, high constables, and parish clerks, shall 
 be and are hereby absolutely freed and exempted from being returned, 
 and from serving upon any juries or inquests whatsoever, and shall not
 
 APPENDIX. 
 
 ',07 
 
 be inserted in the lists to be prepared by virtue of this act as hereinafter chap. xvii. 
 mentioned: provided also, that all persons exempt from serving upon ^^^'^' '• 
 
 juries in any courts aforesaid, by virtue of any prescription, charter, See 5 .& 6 W. 
 
 grant, or writ, shall continue to have and enjoy such exemption in as '^'^•^£: *'•. 
 
 ample a manner as before the passing of this act, and shall not be in- ^ ^'3 yjct. c. 
 
 serted in the lists hereinafter mentioned. 71, s. 4. 
 
 III. Provided also, and be it enacted and declared, that no man, Aliens dis- 
 not being a natural born subject of the king, is or shall be qualified to q"ai"fie<i.. ex- 
 
 o. . . •> 1 • 1 ^ ■ c^ 1 cept on juries 
 
 serve on juries or mquests, except only 111 the cases hereniatter expressly je medieute. 
 
 provided for; and no man who hath been or shall be attainted of any 
 
 treason or felony, or convicted of any crime that is infamous, unless he omilwsf &c. 
 
 shall have obtained a free pardon, nor any man who is under outlawry or disqualified. 
 
 excommunication, is or shall be qualified to serve on juries or inquests in 
 
 any court, or on any occasion whatsoever. 
 
 IV. And be it further enacted, that the clerk of the peace in every Clerks of the 
 county, riding, and division in England and Wales, shall, within the first ^^a^rrani" 'w '* 
 ■week of July in every year, issue and deliver his warrant (in the form the high con. 
 set forth in the schedule hereunto annexed, or as near thereto as may stables in 
 be) to the high constables of each hundred, lathe, wapentake, or other &"/Anne!^c. 
 like district, by which he shall command them to issue forth their pre- 18, s. 5; 3 
 cepts to the churchwardens and overseers of the poor of the several Geo. 2, c.25.) 
 parishes, and to the overseers of the poor of the several townships within 
 
 their respective constablewicks, requiring them to prepare and make out, 
 on the first day of September then next ensuing, a true list of all men re- 
 siding within their respective parishes and townships, qualified and liable 
 to sei've on juries according to this act as aforesaid, and also to perform 
 and comply with all other the requisitions in the said precepts contained. 
 
 V. And be it further enacted, that every such clerk of the peace shall Clerk of the 
 cause a sufficient number of warrants, precepts and returns to be printed, l^^l^^ pointed 
 according to the several forms set forth in the schedule hereunto an- form* of pre- 
 nexed, at the expense of the county, riding, or division, and shall annex "P" f'"' .'"^" 
 
 ' r -^ 1 /. , J . /• ii turns to his 
 
 to every warrant a competent number ot precepts and returns, tor tne warrants, 
 use of the respective persons by whom such precepts are to be issued, 
 and such returns to be made. 
 
 VI. And be it further enacted, that within fourteen days after the re- High con- 
 ceipt of such warrant of the clerk of the peace, every high constable shall pr^pcepis '10"^ 
 issue and deliver his precept (in the form set forth in the schedule here- churchward- 
 unto annexed, or as near thereto as may be), together with a competent ggp^s wiihl"" 
 number of the printed forms of returns, to the churchwardens and over- their con- 
 seers of the poor of the several paaishes, and to the overseers of the poor siablewicks, 
 of the several townships within his constablewick, requiring them by such J^hem' unmake 
 precept to prepare and make out a true list of all men residing within out the jury 
 their respective parishes and townships, qualified and liable to serve as ''*'*• 
 jurors as aforesaid, and to perform and comply with all the requisitions in 
 
 the said precept contained : provided always, that where in any hundred, 
 lathe, wapentake, or other like district, there shall be more than one high Where there 
 constable, in such case the clerk of the peace shall issue and deliver his ^Igh con-"' 
 warrant, together with a competent number of the precepts and returns stables, each 
 as aforesaid, to every one of such high constables, each of whom shall be •<> be respon- 
 individually liable for the due performance of the several matters com- duties re- 
 manded in such warrant throughout the whole of such hundred, lathe, quired by this 
 wapentake, or other like district, and shall for the non-performance ^^e 'whole'""' 
 thereof be subject to all and every the penalties by this act imposed upon hundred, 
 any high constable : provided also, that where in any parish there shall
 
 508 
 
 APPENDIX. 
 
 CHAP. XVII. 
 SECT. I. 
 
 Parishes, &c. 
 exienilini; 
 into more 
 ih.in one hun- 
 dred lo be 
 treated as en- 
 tirely wiihin 
 the hiiiidrtd 
 ■where I he 
 pariah church 
 is. 
 
 Justices of Ihe 
 division may 
 order any 
 ex Ira- paro- 
 chial place 
 to be annexed 
 to any adjoin- 
 ing paii>h or 
 township for 
 the purposes 
 of this act. 
 
 Churchwar- 
 dens and 
 overseers to 
 make out lists 
 of persons 
 qnalified to 
 serve on ju- 
 ries, with 
 their resi- 
 dences, title?, 
 &c. (See 3 
 & 4 Anne, 
 c. 18, s. 5.) 
 
 Lists to be 
 fixed on 
 church doors, 
 and also kept 
 by church- 
 wardens for 
 inspection, 3 
 G. 2, c. 25. 
 
 be no overseers of the poor, other than the churchwardens, such church- 
 wardens shall be deemed and taken to be the churchwardens and over- 
 seers of the poor of such parish within the meaning of this act, to all in- 
 tents and purposes: provided also, that where any parish or township 
 shall extend into more than one hundred, lathe, wapentake, or other like 
 district, either in the same or different counties, such parish and township 
 shall he deemed and taken, for all the pin-poses of this act, to be within 
 that hundred, lathe, wapentake, or other like district, in which the prin- 
 cipal church of such parish or township shall be situate. 
 
 VII. And be it further enacted, that it shall be lawful for the justices 
 of the peace of any division in England or Wales, at a special petty ses- 
 sions to be holden for that purpose before the first day of July in any 
 year, to make an order for annexing any extra-parochial place, whenever 
 they shall think it expedient, to any parish or township adjoining thereto, 
 for the purposes of this act, and a copy of such order shall, within five 
 days from the making thereof, be served upon the churchwardens and 
 overseers of such adjoining parish, or upon the overseers of such adjoin- 
 ing township, and such extra-parochial place shall from thence continu- 
 ally be deemed and taken, for all the purposes of this act, to be within 
 and to form an integral part of such parish or township; and the church- 
 wardens and overseers of such parish, and the overseers of such township, 
 shall be, and they are hereby respectively authorized and required to 
 make out, according to this act, a true list of all men qualified and liable 
 to serve on juries as aforesaid, residing as well in their own respective 
 parish or township as in the extra-parochial place thereto annexed, and 
 shall from time to time perform and execute within such extra-parochial 
 place for the purposes of this act, but for no other purpose, all and every 
 the same acts, duties, powers and authorities, as in their own respective 
 parish or township, and shall be as fully liable to the same penalties for 
 the non-performance thereof within such extra-parochial place, as if they 
 had in every instance been mentioned in this act with reference to such 
 extra -parochial place. 
 
 VIII. And be it further enacted, that the churchwardens and overseers 
 of every parish, and the overseers of every township, within the meaning 
 of this act, shall forthwith, after the receipt of such precept from the high 
 constable, prepare and make out in alphabetical order a true list of every 
 man residing within their respective parishes or townships who shall be 
 qualified and liable to serve on juries as aforesaid, with the christian and 
 surname written at full length, and with the true place of abode, the title, 
 quality, calling, or business, and the nature of the qualification of every 
 such man, in the proper columns of the form of return set forth in the 
 schedule hereunto annexed. 
 
 IX. And be it further enacted, that the churchwardens and overseers 
 of each parish, and the overseers of each township, having made out ac- 
 cording to this act a list of every man qualified and liable to serve on 
 juries as aforesaid, shall, on the three first Sundays of the month of Sep- 
 tember, fix a ti-ue copy of such list upon the principal door of every church, 
 chapel, or other public places of religious worship within their respective 
 parishes or townships, having first subjoined to every such copy a notice, 
 stating that all objections to the list will be heard by the justices of the peace 
 at a time and place to be mentioned in such notice, and having also signed 
 their names at the foot of such copy, and shall likewise keep the original 
 list, or a true copy thereof, to be perused by any of the inhabitants of their 
 respective parishes or townships, at any reasonable time during the three
 
 APPENDIX. 
 
 509 
 
 first weeks of the month of September, without any fee or reward, to the chap. xvii. 
 
 end that notice may be given of men qualified who are omitted, or of men sect. i. 
 
 inserted who ought to be omitted out of such list ; and the churchwardens 
 
 and overseers of each parish, and the overseers of each township, are 
 
 hereby authorized to cause a sufficient number of copies of such lists, for 
 
 the purposes aforesaid, to be printed at the expense of their respective 
 
 parishes or townships. 
 
 X. And be it further enacted, that the justices of the peace in every Petty sessions 
 division in England and Wales shall hold a special petty sessions for the JheTasrwetk 
 purposes herein mentioned within the last seven days of September in ofSeptember. 
 every year, on some day and at some place, of which notice shall be given 
 
 by their clerk, before the twentieth day of August next preceding, to the 
 
 high constable and to the churchwardens and overseers of every parish, 
 
 and to the overseers of every township, within such division ; and the Lists to be 
 
 churchwardens and overseers of each parish, and the overseers of each J,'jfj'g^^''^o"„. 
 
 township, shall then and there produce the list of men qualified and liable gidereH, re- 
 
 to serve on juries as aforesaid within their respective parishes or townships, '"'^"'^''' ^" p 
 
 by them prepared and made out, as herein before directed, and shall 2,0^25.' 
 
 answer upon oath such questions touching the same as shall be put to 
 
 them, or any of them, by the justices then present; and if any man, not 
 
 qualified and liable to serve on juries as aforesaid, is inserted in any such 
 
 list, it shall be lawful for the said justices, upon satisfaction from the oath 
 
 of the party complaining, or other proof, or upon their own knowledge, 
 
 that he is not qualified and liable to serve on juries, to strike his name 
 
 out of such list, and also to strike thereout the names of men disabled by 
 
 lunacy or imbecility of mind, or by deaftiess, blindless or other permanent 
 
 infirmity of body, from serving on juries ; and it shall also be lawful for 
 
 such justices to insert in such list the name of any man omitted therein, 
 
 and likewise to reform any errors or omissions which shall appear to them 
 
 to have been committed in respect to the name, place of abode, title, 
 
 quality, calling, business, or tlie nature of the qualification of any man 
 
 included in any such list : provided always, that no man's name, if omitted. Petty sessions 
 
 shall be inserted in such list, nor shall any error or omission in the de- "<'i '" ''"*'.'■. 
 
 „ • , !• , /. 1 1 ii -J • i- 1 any "St wiih- 
 
 scription of any man m such list be reiormed by the said justices, unless om „oiice to 
 
 upon the application of such men respectively, or unless such men respec- the party to 
 
 tively shall have had notice that an application for such purpose would be ^^ ihe'aTtera- 
 
 made to the justices at such petty sessions, or unless the said justices at lious. 
 
 such sessions, or any two of them, shall cause notice to be given to such 
 
 men respectively, requiring them to show cause, at some adjournment of 
 
 such petty sessions to be holden within four days thereafter, why their 
 
 names should not be inserted in such list, or why any error or omission 
 
 in the description of such men in such list should not be reformed ; and Power of ad- 
 
 when every such list shall be duly corrected at such sessions, or at any •'Li",""a"^"r* 
 
 such adjournment thereof, it shall be allowed by the justices present, or allowance by 
 
 two of them, at such sessions or such adjournment, who shall sign the PJ^u^'I'i.'""'' 
 
 same, with their allowance thereof; and the high constable shall receive yg,.^'^ ,0 i,|gi, 
 
 every list so allowed, and deliver the same to the court of quarter sessions constable, and 
 
 next holden for the county, riding, or division, on the first day of its ^exi'qnirier^ 
 
 sitting, at the same time attesting on oath his receipt of every such list sessions. (See 
 
 from the petty sessions, and that no alteration hath been made therein 3 G. 2, c. 25, 
 
 since his receipt thereof. 
 
 XI. And be it further enacted, that the respective churchwardens and Tax assess- 
 overseers of every parish, and the overseers of every township, shall, for po*^,''r*''',a7t.s to 
 their assistance in completing the lists, pursuant to the intent of this act, be inspected.
 
 510 
 
 APPENDIX, 
 
 CHAP. XVII, 
 SECT. I. 
 
 (See 3 G 2, 
 c. 25, s. 1.) 
 
 Lists lo be 
 kept by rlerk 
 of peace, and 
 copied inlu a 
 book to be 
 delivered lo 
 slierllf. (See 
 7 & 8 W. 3, 
 c. 32, s. 4 ; 3 
 G. 2, c. 25, 
 8.4.) 
 
 Book to be 
 called " The 
 Jurors' 
 Book." 
 Sheriff to de- 
 liver it to his 
 successor. 
 To be used 
 for one year 
 from Ist 
 January. 
 
 Form of ve- 
 nire facias 
 (see 4 Anne, 
 c. 16, ss. 6,7; 
 21 G. 2,0. 18,) 
 and of pre- 
 cept for jn- 
 rors at gaol 
 deliveries and 
 sessions of the 
 peace. 
 
 Juries to be 
 returned from 
 jurors' book, 
 by sheriff, and 
 by coroners 
 and elisors. 
 
 (upon request macule by them or any of tliem at any reasonable time be- 
 tween the first day of July and the first day of October in every year, to 
 any collector or assessor of taxes, or to any other officer having the cus- 
 tody of any duplicate or tax assessment for such parish or township,) 
 have free liberty to inspect any such dui)licate or assessment, and take 
 from thence the names of such men qualified to serve on juries, dwelling 
 within their respective parishes or townships, as may appear to them or 
 any of them to be necessary or useful ; and every court of petty sessions 
 and justice of the peace shall, upon the like request to any collector or 
 assessor of taxes, or any other officer having the custody of any duplicate 
 or tax assessment, or to any churchwarden or churchwardens, or overseer 
 or overseers, having the custody of any poor rate within their respective 
 divisions, have the like free liberty to inspect and make extracts from any 
 such duplicate, tax assessment, or poor rate, for the purpose of assisting 
 them in the reformation and completion of the jury lists within their re- 
 spective divisions. 
 
 XII. And be it further enacted, that the clerk of the peace shall keep 
 the lists, so returned by the high constable to the court of quarter ses- 
 sions, among the records of the session, arranged with every hundred in 
 alphabetical order, and every parish or township within such hundred 
 likewise in alphabetical order, and shall cause the same to be fairly and 
 truly copied in the same order, in a book to be by him provided for that 
 purpose, at the expense of the county, riding, or division, with proper 
 columns for making the register hereinafter directed, and shall deliver 
 the same book to the sheriff" of the county or his under-sheriff", within six 
 weeks next after the close of such sessions, which book shall be called 
 
 " The Jurors' Book for the Year " (inserting the calendar year for 
 
 which such book is to be in use) ; and that every sheriff" on quitting his 
 office shall deliver the same to the succeeding sheriff; and that every 
 jurors' book so prepared shall be brought into use on the first day of 
 January after it shall be so delivered by the clerk of the peace to the 
 sheriff or his under-sheriff, and shall be used for one year then next 
 following. 
 
 XIII. And be it further enacted, that every writ of venire facias jura- 
 tores for the trial of any issue whatsoever, whether civil or criminal, or on 
 any penal statute, in any of the courts in England or Wales hereinbefore 
 mentioned, shall direct the sheriff to return twelve good and lawful men 
 of the body of his county, qualified according to law, and the rest of the 
 writ shall proceed in the accustomed form : and that every precept to be 
 issued for the return of jurors before courts of oyer and terminer, gaol 
 delivery, the superior criminal courts of the three counties palatine, and 
 courts of sessions of the peace in England, and before the courts of great 
 sessions and sessions of the peace in Wales, shall in Yik^ manner direct 
 the sheriff to return a competent number of good and lawful men of the 
 body of his county, qualified according to law, and shall not require the 
 same to be returned from any hundred or hundreds, or from any particular 
 venue within the county, and that the want of hundredors shall be no 
 cause of challenge ; any law, custom, or usage to the contrary notwith- 
 standing. 
 
 XIV. And be it further enacted, that every sheriff upon the receipt of 
 every such writ of venire Jacias and precept for the return of jurors, shall 
 return the names of men contained in the jurors' book for the then cur- 
 rent year, and no others; and that where process for retaining a jury for 
 the trial of any of the issues aforesaid shall be directed to any coroner.
 
 APPENDIX. 
 
 511 
 
 elisor, or other minister, lie shall have free access to the jurors' hook for chap. xvir. 
 
 the current year, and shall in like manner return the names of men con- sect, i. 
 
 tained therein, and no others ; provided always, that if there shall be no 
 
 jurors' book in existence for the current year, it shall be lawful to return 
 
 jurors from the jui-ors' book for the year preceding. 
 
 XV. And be it further enacted, that every sheriff or other minister, to Sheriff, &c. 
 
 ■whom the return of juries for the trial of issues before any court of assize ^"^i'^^"'^"^"^^ 
 
 or nisi prius in any county of England, except the counties palatine, may facias, lo 
 
 belong, shall, upon his return of every writ of venire facias (unless the annex a panel 
 causes intended to be tried at bar, or in cases where a special jury shall "gJ^T g! 2,*^" 
 
 be struck by order or rule of court), annex a panel to the said writ, con- c. 25, s. 8.; 
 taining the names alphabetically arranged, together with places of abode 
 and additions, of a competent number of jurors named in the jurors' book, 
 and that the names of the same jurors shall be inserted in the panel an- 
 nexed to every venire facias for the trial of all issues at the same assizes 
 or sessions of nisi prius in each respective county, which number of jurors 
 shall not in any county be less than forty-eight nor more than seventy- 
 two, unless by the direction of the judges appointed to hold the assizes or 
 sessions of ?iisi prius in the same county, or one of them, who are and is 
 hereby empowered, by order under their or his hands or hand, to direct a 
 greater or lesser number, and then such number as shall be so directed 
 shall be the number to be returned ; and that in the writ of habeas corpora 
 
 juratorum or distringas, subsequent to such writ of venire facias, it shall 
 not be requisite to insert the names of all the jurors contained in such 
 panel, but it shall be sufficient to insert in the mandatory part of such 
 writs respectively, " the bodies of the several persons in the panel to this 
 writ annexed named," or words of the like import; and to annex to such 
 •writs respectively panels containing the same names as were returned in 
 the panel to such venire facias, with their places of abode and additions ; 
 and that for making the returns and panels aforesaid, and annexing the 
 same to the respective writs, the ancient legal fee, and no other, shall be 
 taken ; and that the men named in such panels, and no others, shall be 
 summoned to serve on juries at the then next court of assizes or sessions 
 of nisi prius for the respective counties named in such writs. 
 
 XVI. And be it further enacted, that if any plaintiff or demandant in if plaintiff sne 
 any cause which shall be at issue in any of his majesty's courts of record ^'""j^^^^^'j"*' 
 at Westminster, or any defendant in any action of quurc iinpedit or re- ,„ |riai, and 
 plevin which shall be so at issue, shall sue out any writ of venire facias, not proceed, 
 upon which any writ of habeas corpora or distringas with a nisi prius shall „*arJJs^iie '^'^" 
 issue, in order to the trial of the said issue at the assizes or sessions of f„rih another 
 nisi prius, and shall not proceed to trial at the first assizes or sessions of l^^^\l'J^^^- 
 nisi prius after the teste of such writ of habeas corpora or distringas, then ^^y j,;t,se- 
 and in every such case (except when a view by jurors shall be directed, quent assize?. 
 as hereinafter mentioned) such plaintiff, demandant or defendant, when- wt^c. 32, 
 soever he shall think fit to try the said issue at any other assizes or ses- § i.) ' " 
 sions of nisi prius, shall sue forth a new writ of venire facias, commanding 
 the sheriff to return anew twelve good and lawful men of the body of his 
 county, qualified according to law, and the rest of the writ shall proceed 
 in the accustomed manner ; which writ being duly returned, a writ of 
 habeas corpora or distringas with a nisi prius shall issue thereupon (for 
 ■which the same fees shall be paid as in the case of the pluries habeas corpora 
 or distringas with a nisi prius), upon which such plaintiff, demandant or 
 defendant shall and may proceed to trial as lawfully and effectually to all 
 intents and purposes as if no former writ of venire facias had been prose-
 
 512 
 
 APPENDIX. 
 
 CHAT. XVII, 
 SKCT. I. 
 
 Defendant 
 may du tbe 
 same. 
 
 Retnrns of 
 
 jurors in ihe 
 
 countie!) pala 
 
 line. 
 
 (See 3 O 2, 
 
 c. 2&, § 10.) 
 
 Returns of 
 jurors in 
 Wales. 
 (See 3 G. 2, 
 c. 25, § 9 ) 
 
 Copy of the 
 panel to be 
 kepi in the 
 sheritf 'a of- 
 fice, for the 
 inspection of 
 the parlies 
 anfl Iheir at- 
 tornies. 
 
 cuted in that cause, and so toties quotics, as the case shall require; and 
 if any defendant or tenant in any action depending in any of the said 
 courts shall be minded to bring to trial any issue joined against him, 
 where by the practice of the court he may do the same by proviso, he 
 shall or may, of the issuable term next preceding such intended trial to, 
 be had at the ne.xt assizes or sessions of imi prius, sue out a new venire 
 facias to the sheriff in the form aforesaid by proviso, and prosecute the 
 same by writ of habeas corpora or distringas with a nisi prius, as lawfully 
 and eflectually to all intents and purposes as if no former writ of venire 
 facias had been sued out or returned in that cause, and so toties quoties, 
 'as the matter shall require. 
 
 XVII. And be it further enacted, that every sheriff or other minister to 
 whom the return of juries for the trial of causes in the superior courts of 
 the said counties palatine may belong, shall, ten days at least before the 
 said courts shall respectively be held, summon a competent number of 
 men, named in the jurors' book, to serve on juries in the said courts, so 
 as such number be not less than forty-eight, nor more than seventy-two, 
 without the direction of the judge or judges of the courts for such counties 
 palatine respectively; and the sheriff or other minister who shall summon 
 such jurors shall return a list containing the names, alphabetically 
 arranged, and the places of abode and additions of the jurors so sum- 
 moned, on the first day of the court to be held for the said counties pala- 
 tine respectively ; and the jurors so summoned, or a competent number 
 of them, as the judge or judges of such cotu't respectively shall direct, 
 and no others (unless in cases where a special jury shall be struck), shall 
 be named in every panel to be annexed to every writ of venire facias ju- 
 ratores, habeas corpora juratorum and distringas, which shall be issued out 
 and returnable for the trial of cases in such courts respectively. 
 
 X Vlll. And be it further enacted, that every sheriff, or other minister 
 to whom the return of juries for the trial of causes in the court of great 
 sessions in any county of Wales may belong, shall, at least ten days be- 
 fore every great sessions, summon a competent number of men named in 
 the jurors' book, so as such number be not less than forty-eight or more 
 than seventy-two, without the direction of the judge or judges of the great 
 sessions for such county, who is and are hereby empowered, if he or they 
 shall see cause, by rule of court, or by an order of any judge thereof, to 
 be made in vacation, if necessary, to direct a gi-eater or lesser number to 
 be summoned ; and that the sheriff or other minister who shall summon 
 such jurors shall return a list containing the names, alphabetically ar- 
 ranged, and the places of abode and additions of the jurors so summoned, 
 at the first court of the second day of every great sessions ; and that the 
 jurors so sumiuoned, or a coinpetent number of them, as the judge or 
 judges of such great sessions shall direct, and no others (unless in cases 
 where a special jury shall be struck), shall be named in every panel to be 
 annexed to every writ of venire facias juratores, habeas corpora juratorum 
 and distringas, which shall be issued out and returnable for the trial of 
 causes at such great sessions. 
 
 XIX. And be it further enacted, that the sheriff or minister to whom 
 the return of jurors for the trial of causes in any county in England (ex- 
 cept the counties palatine) may belong shall cause to be made out an 
 alphabetical list of the names of all the jurors contained in the panels 
 to the several writs of venire facias annexed as aforesaid, with their 
 respective place of abode and additions; and the sheriff or other minister 
 to whom the return of jiu-ors for the trial of causes in any county pala-
 
 APPENDIX. 513 
 
 tine, or in any county in Wales, may belong, shall cause to be made out chap. xvii. 
 in like manner a list of all the jurors so summoned in such respective sect. i. 
 counties as aforesaid; and every such sheriff or other minister shall keep T ~^ 
 such list in the office of the under-sheriff or deputy for seven days at least ]._ |^j ^„^ g ' 
 before the sitting of the next court of assize or nisi prius, or the next H. 6, c. 2.) 
 court to be holden for any county palatine, or the next court of great ses- 
 sions in Wales ; and the parties in all causes to be tried at any-such court 
 of assize or nisi prius, or court of any county palatine or great sessions, 
 and their respective attornies, shall, on demand, have full liberty to in- 
 spect such list without any fee or reward to be paid for inspection. 
 
 XX. Provided always, and be it further declared and enacted, the Juries in all 
 Court of King's Bench and all courts of oyer and terminer, gaol delivery, pou"^,"'^), (,e 
 the superior criminal courts of the three counties palatine, and courts of reiurned as ^ 
 sessions of the peace in England, and all courts of great sessions and ses- before, 
 sions of the peace in Wales, shall respectively have and exeixise the same 
 
 power and authority as they have heretofore had and exercised in issuing 
 any writ or precept, or making any award or order, orally or otherwise, 
 for the return of a jury for the trial of any issue before any of such courts 
 respectively, or for the amending or enlarging the panel of jurors returned 
 for the trial of any such issue; and the return to every such writ, precept, (3 H.8,c. 
 award, or order, shall be made in the manner heretofore used and accus- ^'^■) 
 tomed in such courts respectively, save and except that the jurors shall be 
 returned from the body of the county, and not from any hundred or hun- 
 dreds, or from any particular venue within the county, and shall be quali- 
 fied according to this act. 
 
 XXI. And be it further enacted, that when any person is indicted for Copy of the 
 high treason or misprision of treason, in any court other than the Court P""*' '° ''J^ 
 of King's Bench, a list of the petit jury, mentioning the names, profes- parties in- 
 sion, and place of abode of tlie jurors, shall be given at the same time that flicted for 
 the copy of the indictment is lielivered to the party indicted, which shall ^^^^ ireason. 
 be ten days before the arraignment, and in the presence of two or more 
 
 credible witnesses ; and when any person is indicted for high treason or 7 W. 4, c. 3. 
 misprision of treason in the Court of King's Bench, a copy of the indict- ^^|* 's t"/'*^' 
 menl shall be delivered within the time, and in the manner aforesaid ; but 
 the list of the petit jury, made out as aforesaid, may be delivered to the 
 ])arty indicted at any time after the arraignment, so as the same be de- 
 livered ten days before the day of trial : provided always, that nothing Exceptions 
 herein contained shall any ways extend to any indictment for high treason ^s'^ -lO G. a, 
 in compassing and imagining the death of the king, or for misprision of 
 such treason, where the overt act, or overt acts of such treason alleged in 
 the indictment shall be assassination or killing of the king, or any direct 
 attempt against his life, or any direct attempt against his person, whereby 
 his life may be endangered, or his person may suffer any bodily harm ; g. 3, c. 53, 
 or to any indictment of high treason for counterfeiting his majesty's coin, »• 3. 
 the great seal, or privy seal, his sign manual or privy signet; or to any 
 indictment of high treason, or to any proceedings thereupon, against any 
 offender or offenders who b}' any act or acts now in force is and are to be 
 indicted, arraigned, tried and convicted by such like evidence, and in such 
 manner as is used and allowed against offenders for counterfeiting his 
 majesty's coin. 
 
 XXII. And be it further enacted, that in any county in which the Jmigeofas- 
 justices of assize in England, or the justices of the superior courts of the ^"■'^ ""^^ ''■" 
 said counties palatine, or the judges of the great sessions in any county of pg|,g| f^r the 
 Wales, shall think fit so to direct, the sheriff" or other minister to whom criminal and 
 
 L L
 
 511. APPENDIX. 
 
 ciJAP. XVII. the return of the venire facias juratores, or other process for the trial of 
 
 SEc-r. I. causes at nisi prius, doth belonj?, shall summon and impanel such number 
 
 of jurors, not exceeding one liundred and forty-four, as such judges or 
 
 civil tides, justices respectively shall think fit to direct, to serve indiscriminately on 
 
 ?ec't uvlf svI'b the criminal and civil side ; and that where such judges or justices re- 
 
 ofjurorstobe spcctivelv shall so direct, the sheriff or other minister shall divide such 
 
 s.iiiiinoiie<i, :j,,.o,.s eouallv into two sets, the first of which sets shall attend and 
 
 at ihe begin- serve for so many days at the beginnnig ot each assize or great sessions, 
 
 ning ofcrtcli jjg gj,p]j judges or justices respectively shall, within a reasonable time be- 
 
 the oliiVr't'o foYC the commencement of such assize or great sessions, respectively think 
 
 attend the fit to direct, and the other of which sets shall attend and serve for the 
 
 thereof to residue of such assize or great sessions: provided always, that such sheriff 
 
 serve indis- or other minister shall, in the suminons to the jurors in each of such sets, 
 
 criininaieiy specify whether the juror named therein is in the first or second set, and 
 
 nal and'^ci'vi'l at what time the attendance of such juror will be required; and the she- 
 
 si'le. rifi'or other minister to whom the return of the venire facias juratores, or 
 
 G*^! \*6 ) other process, for the trial of causes at nisi prius, dotli belong, shall, upon 
 
 Siinimoiis ^''s return of every such writ or process, annex thereto a panel containing 
 
 shall be made the names, alphabetically arranged, together with the additions and places 
 
 ih'" fir"'^"^ "^""^ of abode of the jurors in each of such sets; and during the attendance and 
 
 second set. service of the first of such sets, the jury on the civil side shall be drawn 
 
 In cape of from the names of the persons in that set, and during the attendance and 
 
 view, the service of the second of such sets, from the names of the persons in such 
 
 point iHal''" Second set : provided always, that in any case wherein an order for a 
 
 during the view shall have been obtained as hereinafter mentioned, it shall be lawful 
 
 attendance of f^^ the iudge before whom such case is to be tried, and he is hereby 
 
 the vitwers. • ,•' ° ^ ■,■ ■ r. .1 . 1 , • ■ 1 t » • <. 
 
 required, on the application of the party obtaining such order, to appoint 
 
 such case to be tried during the attendance and service of that set of jurors 
 
 in which the viewers, or the major part of them, are included. 
 
 Where jurors XXIII. And be it further enacted, that where in any case, either civil 
 
 r'^V" &^''^ °'' criminal, or on any penal statute, depending in any of the said Courts 
 
 courVmay of Record at Westminster, or in the counties palatine or great sessions in 
 
 order special Wales, it shall appear to any of the respective courts, or to any judge 
 
 "^LTil'.HL"^ thereof in vacation, that it will be proper and necessary that some of the 
 
 or distrinyas, jurors who are to try the issues in such case should have the view 01 the 
 
 or habeas place in (luestion, in order to their better understanding the evidence that 
 corpora. (See "^ 1 , . . , ,. , . . °, 1 ^ 
 
 4 Anne, c. ic, 'Ti^y be giveii upon the trial 01 such issues, in every such case such court, 
 
 § 8; 3 G. 2, or any judge thereof in vacation, may order a rule to be drawn up, con- 
 <;• 5, § 14.; taining the usual terms, and also requirhig, if such court or judge shall so 
 think fit, the party applying for the view to deposit in the hands of the 
 under-sheriff a sum of money to be named in the rule for payment of the 
 expenses of the view, and commanding special writs of venire facias dis- 
 tringas, or habeas corpora to issue, by which the sheriff or other minister 
 to whom the said writs shall be directed, shall be commanded to have six 
 or more of the jurors named in such writs, or in the panels thereto an- 
 nexed (who shall be mutually consented to by the parties, or, if they 
 cannot agree, shall be nominated by the sheriff or such other minister as 
 aforesaid), at the place in question, some convenient time before the trial, 
 who then and there shall have the place in question shown to them by 
 two persons in the said writs named, to be appointed by the court or 
 judge ; and the said sheriff, or other minister who is to execute any such 
 writ, shall, by a special return upon the same, certify that the view hath 
 been had according to the command of the same, and shall specify the 
 names of the viewers.
 
 APPENDIX. 515 
 
 XXIV. And be it further enacted, that where a view shall be allowed chap. xvii. 
 in any case, those men who shall have had the view, or such of them as sect. i. 
 shall appear upon the jury to try the issue, shall be first sworn, and so viewers in 
 many only shall be added to the viewers who shall appear, as shall, after case of sp- 
 all defaulters and challenges allowed, make up a full jury of twelve, brswom'" 
 
 XXV. And be it further enacted, that the summons of every man to upon ibe 
 serve on juries, not being special juries, in any of the courts aforesaid, Ji'^' first, 
 shall be made by the proper officer ten days at the least before the day on ■._ 25, § u.) 
 which the juror is to attend, by showing to the man to be summoned, or jurors to be 
 in case he shall be absent from the usual place of his abode, by leaving snramoned 
 with some person there inabiting, a note in writing, mider the hand of '^" ''^^ j*"^', 
 the sheriff, or other proper officer, containing the substance of such sum- atiendance. 
 mons; and the summons of every man to serve on special juries in any (^ee W. 3, 
 of the courts aforesaid, shall be made by the like persons, and in the like i"i)fan(ffor 
 manner as aforesaid, three days at the least before the day on which the special jurors 
 special juror is to attend ; provided always, that this act shall not require Lj'T**^ J^>''- 
 any longer time for summoning an}^ jurors in the city of London or county summoning 
 of Middlesex, than has been heretofore by law required, nor shall give any jurors for 
 longer time for the return of any writ of venire fucius, habeas corpora, or as°hereiofore. 
 distringas, than has been heretofore by law required ; but that whei'e there 
 
 shall not be ten days between the awarding of such writ and the return 
 thereof, every juror may be summoned, attached or distrained to ap- 
 pear at the day and time therein mentioned, as he might heretofore have 
 been. 
 
 XXVI. And be it fiu'ther enacted, that the name of each man who Names of 
 shall be summoned and impanelled in anv court of assize or nisi priiis, or J"rors to be 
 
 /. .1 . . , ^ . . , r . ., ' r ^ • 1 • i flelivercfl lo 
 
 tor the trial 01 issues in the civil courts or the counties palatme or great (he associate, 
 sessions, with the place of his abode and addition, shall be written on and balloiied 
 a distinct piece of parchment or card, such pieces of parchment or card cWii'courts! 
 being all as nearly as may be of equal size, and shall be delivered unto 
 the associate or prothonotary of such court by the under-sheriff of the 
 county, or the secondary of the city of London, and shall, bj' direction 
 and care of such associate or prothonotaiy, be jut together in a box pro- 
 vided for that purpose, and when any issue shall be brought on to be 
 tried, such associate or prothonotary shall in open court draw out twelve (See 3 G. 2, 
 of the said parchments or cards one after another, and if any of the men ^; ^5, § 11 & 
 whose name shall be so drawn shall not appear, or shall be cluillenged and 
 set aside, then such further number, until twelve men be drawn, who 
 shall appear, and, after all just causes of challenge allowed, shall remain 
 as fair and indifferent ; and the said twelve men so first drawn and ap- 
 pearing, and approved as indifferent, their names being marked in the 
 panel, and they being sworn, shall be the jury to try the issue, and the 
 names of the men so drawn and sworn shall be kept apart by themselves 
 until such jury shall have given in their verdict, and the same shall be - 
 recorded, or until such jury shall, by consent of the parties or by leave of 
 the court, be discharged, and then the same names shall be returned to 
 the box, there to be kept with the other names remaining at the time un- 
 drawn, and so toties quoties as long as any issue remains to be tried : pro- where ilie 
 vided always, that if any issue shall be brought on to be tried in any of jnry have not 
 the said courts before the iurv in any other issue shall have brought in fV"'"^'" '". , 
 
 ... . ** .^ . ' ^ their verdict, 
 
 their verdict or been discharged, it shall be lawful for the court to oi'der twelve others 
 twelve of the residue of the said parchments or cards, not containing the '" ^^ drawn, 
 names of any of the jurors who shall not have so brought in their verdict, 
 or been discharged, to be drawn in such manner as is aforesaid, for the 
 
 L L 2
 
 51 G APPENDIX. 
 
 CHAP. xvii. trial of the issue which shall be so brought on to he tried: provided also, 
 SECT. I. that where no objection shall be made on behalf of the king or any other 
 " pai'ty, it shall be lawful for the court to try any issue with the same jury 
 jii'rj nrnot that shall have previously tried or been drawn to try any other issue, 
 objected to, without thcir names being returned to the box and re-drawn, or to order 
 may iry se ^^^^ name or names of any man or men on such jury, whom both parties 
 in?ucceIs1on may consent to withdraw, or who may be justly challenged or excused 
 wiihoiu being by the court, to be set aside, and another name or other names to be 
 re-drawn. drawn from the box, and to try the issue with the residue of such original 
 jury, and with such man or men whose name or names shall be so drawn, 
 and who shall appear and be approved as indifferent, and so lolies quoties 
 as long as any issue remains to be tried. 
 Want of qua- XXVII. And be it further enacted, that if any man shall be returned 
 lificaiiim in gg a juror for the trial of any issue in any of the courts hereinbefore men- 
 rors"u."bi"' tioned, who sliall not be qualified according to this act, the want of such 
 cause of qualification shall be good cause of challenge, and he shall be discharged 
 
 (See'4 a's "P°" ^"'^^^ challenge, if the court shall be satisfied of the fact ; and that 
 W.** M. if any man returned as a juror for the trial of any such issue sliall be 
 c. 24, § 15.) qualified in other respects according to this act, the want of freehold shall 
 not on such trial in any case, civil or criminal, be accepted as good cause 
 of challenge, either by the crown or by the party, nor as cause for dis- 
 charging the man so returned upon his own application ; any law, custciiii 
 or usage to the contrary notwithstanding ; provided, that nothing herein 
 contained shall extend in anywise to any special juror. 
 Not (o extend XXVIII. And be it further enacted, that no challenge shall l)e taken 
 to special jii- to any panel of jurors for want of a knight's being returned in such panel, 
 wTere chal- "'^^' ^"7 array quashed by reason of any such challenge ; any law, custom 
 lenges not or Usage to the contrary notwithstanding. 
 
 (See'2'i'G 2 XXIX. And be it further enacted, that in all inquests to be taken 
 c. 18, § 4.) ' before any of the courts hereinbefore mentioned, wherein the king is a 
 The kin? shall P^rty, howsoever it be, notwithstanding it be alleged by them that sue 
 oniychailcnge for the king, that the jin-ors of those inquests, or some of them, be not 
 ssEd.T'st 4 iiic^ifferent for the king, yet such inquests shall not remain untaken for 
 Prisoner ai- ' that cause ; but if they that sue for the king will challenge any of those 
 lowed 20 jurors, they shall assign of their challenge a cause certain, and the truth 
 cl^anelfsoY^ of the same challenge shall be inquired of according to the custom of the 
 only in felony, court ; and it shall be proceeded to the taking of the same inquisitions, 
 c^li-^1 ^'2' ^^ '^^ ^^^^^^ ^^ found, if the challenges be true or not, after the discretion 
 1'. &'m. c. of the court; and that no person arraigned for murder or felony shall be 
 l**-) admitted to any peremptory challenge above the number of twenty. 
 
 Court to have XXX. And be it further enacted and declared, that it is and shall be 
 the power of lawful for his majesty's courts of King's Bench, Common Pleas, and Ex- 
 cLu'iufes^to chequer, at Westminster respectively, and for the judges of the said courts 
 be siruck be- of the three counties palatine, and of the courts of great sessions in Wales, 
 pe^oirice'^r'^"' "P"" "^otion made on behalf of the king, or upon the motion of any pro- 
 (See 3 G. 2, secutor, relator, plaintiff', or demandant, or of any defendant or tenant, in 
 c. 25, §15; any case whatsoever, whether civil or criminal, or on any penal statute, 
 c"37, as to' excepting only indictments for treason or felony, depending in any of the 
 coiiniies pa. Said courts, and the said courts and judges respectively are hereby autlio- 
 in'o^a ""% ^'^^^' ^" ^"y °^ '^1^ cases before mentioned, to order and appoint a special 
 as 10 Wales.)' jui*y to be struck before the proper officer of each respective court, for the 
 trial of any issue joined in any of the said cases, and triable by a jury, 
 in such manner as tlie said courts respectively have usually ordered tlie 
 same; and every jury so struck shall be the jury returned for the trial of 
 such issue.
 
 APPENDIX. 
 
 517 
 
 ions 
 
 XXXI. And be it further enacted, that every man who shall be de- chap, xvii 
 scribed in the jurors' book for any county in England or Wales, or for sect, i . 
 the county of the city of London, as an esquire or person of higher de- „ ,.. , 
 gree, or as a banker or merchant, shall be qualmed and liable to serve on of special ju 
 special juries in every such county in England and Wales, and in London rorsinEngiish 
 respectively; and the sheriff of every county in England and Wales, or counlJ^^'and 
 his undei'-sheriff, and the sheriffs of London or their secondar}', shall, in London; 
 within ten days after the delivery of the jurors' book for the current year ^j"'^.^'"'.''''^ 
 to either of them, take from such book the names of all men who shall be 1,0^ liie ju- 
 described therein as esquires or persons of higher, or as bankers or mer- rois' book 
 chants, and shall respectively cause the names of all such men to be fairly i'^men'mir. 
 and truly copied out in alphabetical order, togetlier with their respective liiieii as spe- 
 places of abode and additions, in a separate list to be subjoined to the c'«j jurors; 
 jurors' book, which list shall be called " the Special Jurors' List," and write ihem 
 shall prefix to every name in such list its proper number, beginning the i" a separate 
 numbers from the first name, and continuing them in a regular arithme- fi^'milnbei-r 
 tical series down to the last name, and shall cause the said several num- to all the 
 bers to be written upon distinct pieces of parchment or card, being all as |"^"'" "] '."^ii 
 nearly as may be of equal size, and after all the said numbers shall have „;ri'te all the 
 been so written, shall put the same together in a separate drawer or box, immbers on 
 and shall there safely keep the same to be used for the purpose hereinafter and"mu'^th'e''m 
 mentioned. in a box tor 
 
 XXXIL And be it further enacted, that whenever any of the courts safe custody, 
 or judges above mentioned shall order a special jury to be struck before Officer of 
 the proper officer of such court, such officer shall appoint a time and place co"rt is to 
 for the nomination of such special jury; and a copy of the rule of court, fj^ife'an^ '^ 
 and of such officer's appointment, shall be served on the under-sheriff of place for 
 the county in England or Wales in which the trial is to be had, or on the "0""nating 
 
 1 ' ,• 1 • /. T 1 •/. 1 • 1 • 1111 11 "'^ special 
 
 secondary of the city of London, it the trial is to be had there, and also jury. 
 
 on all the parties who have usually been served with the same respectively, Under-sheriff 
 in the accustomed manner; and the said officer, at the time and place fo au'enfT'i'he 
 appointed, being attended by such under-sheriff, or secondary, or his officer with 
 agent, who are hereby respectively required to bring with them the jurors' !'j^ special 
 book and such special jurors' list, and all the numbers so written upon and all the' 
 distinct pieces of parchment or card as aforesaid, shall, in the presence of numbers; 
 all the parties in any of the cases aforesaid, and of their attornies (if they ^n t^fj^nl^m!." 
 respectively choose to attend, or if the said parties or their attornies, all bers in a box, 
 or any of them, do not attend, then in their absence), put all the said =""1 i" firaw 
 numbers into a box, to be by him provided for that purpose, and after i„ check tium 
 having shaken them together, shall draw out of the said box forty-eight wiihihenum- 
 of the said numbers, one after another, and shall, as each number is naJ^i'J'j'",', ,|,e 
 drawn, refer to the corresponding number in the special jurors' list, and list; 
 read aloud the name designated by such number ; and if at the time of 
 so reading any name, either party, or his attorney, shall object that the 
 man whose name shall have been so referred to is in any manner incapa- 
 citated from serving on the said jury, and shall also then and there prove 
 the same to the satisfaction of the said officer, such name shall be set 
 aside, and the said officer shall instead thereof draw out of the said box 
 another number, and shall in like manner refer to the corresponding num- 
 ber in the said list, and read aloud the name designated thereby, which 
 name may be in like manner set aside, and other numbers and names 
 shall in eveiy such case be resorted to, according to the mode of proceed- 
 ing hereinbefore described, for the purpose of supplying names in the 
 places of those set aside, until the whole number of forty-eight names not
 
 518 APPENDIX. 
 
 CHAP. XVII. liable to be set aside shall be completed; and if in any case it shall so 
 SECT. I. happen that the whole number of forty-eight names cannot be obtained 
 from the special jurors' list, in such case the said officer shall fairly and 
 indifferently take, according to the mode of nomination heretofore pursued 
 in nominating special juries, such a munber of names from the general 
 jurors' book, in addition to those already taken from the special jurors' 
 list, as shall be required to make up the full number of forty-eight names, 
 all and every of which forty-eight names shall in such case be equally 
 and lodeliver deemed and taken to be those of special jurors ; and the said officer shall 
 48 names to afterwards make out for each party a list of the forty-eight names, together 
 each parly, with their respective places of abode and additions, and after having made 
 ash^ "^rf""' °"'' ^""^'^ ''^*' ^''^'^ return all tlie numbers so drawn out, together with all 
 the numbers remaining undrawn, to such under-sheriff or secondary, or 
 his agent, to be by such under-sheriff or secondary safely and securely kept 
 for future use ; and all the subsequent proceedings for reducing the said 
 list, and all other matters whatsoever relating to special juries, shall re- 
 main and continue in force as heretofore, except where the same or any 
 part thereof is expressly altered by this act ; and all the fees heretofore 
 payable on the striking of special juries shall continue to be paid in the 
 accustomed manner. 
 The parlies XXXIII. Provided always, and be it further enacted, that nothing 
 
 may, by con- herein contained shall be construed to prevent the parties in any caifse, 
 special jury or their attornies, from consenting to have a special jury nominated, 
 siriick accord- according to the mode used and accustomed before the passing of this 
 
 '"^;"' ,""^ I act, and upou a consent to that effect, signed by each party, or his attor- 
 ancienl mode. , . ' . , , ^ r.^ -^ i • i i i • i 
 
 The ?ame "ey, being communicated to the proper ofhcer, he is thereby authorized 
 
 special jury and required to nominate a special jury for the trial of every such cause, 
 
 aeni.'iry a'^r'y" according to the mode used and accustomed before the passing of this act; 
 
 nniiiber of provided also, that nothing herein contained shall be construed to prevent 
 
 The'cMirt ^^'^ same special jury, however nominated, from trying any number of 
 
 may riis- causes, SO as the parties in every such cause, or their attornies, shall have 
 
 charge any signified their assent in writing to the nomination of such special jury for 
 
 served as a' ' ^'^® ^'^'^^ °^ their respective causes : jJi'ovided always, that it shall be lawful 
 
 special juror for the court, if it shall so think fit, upon the application of any man who 
 
 the^same'"" ^'^^'^ have served upon one or more special juries at any assizes or ses- 
 
 assizes. sions of nisi prius, to discharge such man from serving upon any other 
 
 special jury during the same assizes or sessions of nisi priits. 
 
 Co9isof8pe- XXXlV. And be it further enacted, that the person or party who 
 
 fS*' ^2i'c 1 ^^^'^ ^PP'y ^°^' ^ special jury, shall pay the fees for striking such jury, and 
 
 c. 18.) ' ^'1 ^he expenses occasioned by the trial of the cause by the same, and 
 
 shall not have any further or other allowance for the same, upon taxation 
 
 of costs, than such person or party would be entitled unto in case the 
 
 cause had been tried by a common jury ; unless the judge before whom 
 
 the cause is tried shall, immediately after the verdict, certify, under his 
 
 hand, upon the back of the record, that the same was a cause proper to 
 
 be tried by a special jury. 
 
 Feestospe- XXX V. And be it further enacted, that no jui'or M-ho shall serve upon 
 
 (See'ii'^G 2 ^"^ special jury shall be allowed or take for serving on any such jury 
 
 c. IS.) ' ' more than such sum of money as the judge who tries the issue shall think 
 
 just and reasonable, and which shall not exceed the sum of one pound one 
 
 shilling, except in causes wherein a view is directed, and shall have been 
 
 had by such juror. 
 
 Mode of XXXVI. Provided always, and be it further enacted, that where any 
 
 ciai jufie3''ni special jury shall be ordered, by any rule in any of the courts aforesaid,
 
 APPENDIX. 
 
 519 
 
 to be struck by the proper officer of such court, in any cause arising in chap. xvii. 
 any county of a city or town, except the city of London, the sheriff or ^^^"^^ ^' 
 sheriffs thereof, or the under-sheriff respective!}', shall be commanded by ^^y county of 
 such rule to bring or cause to be brought, before the proper officer of a city or town 
 such court, the books or lists of persons qualified to serve on juries within ^^'^"^0^1'-°"' 
 the same county of a city or town ; and in every such case the jury shall n.ain as here, 
 be taken and struck out of such books or lists respectively, in the manner '"'o''^- 
 heretofore used and accustomed ; any thing in this act to the contrary [^ 55^ j_ {^'^ 
 notwithstanding. 
 
 XXXVII. And be it further enacted, that where a full jury shall not ^"^^/,/^,r^,'^; 
 appear before any court of assize or nisi prius, or before any of the superior (^^p 34 & 35* 
 civil courts of the three counties palatine, or before any court of great H. 8, c. 23, 
 sessions, or where, after appearance of a full jury, by cliallenge of any \y]ll^^ -^35 h. 
 of the parties, the jury is likely to remain untaken for default of jurors, s, c. 6;' 4 & 5 
 every such court, upon request made for the king by any one thereto TVp "^'^ i"/.' 
 authorized or assigned by tlie court, or on request made by the parties, j4 em',:, c. 9'; 
 plaintiff or demandant, defendant or tenant, or their respective attornies, 7 & 8 W. 3, 
 in any action or suit, whether popular or private, shall comiuand the she- '^- ^'^-^ 
 
 riff or other minister, to whom the making of the return shall belong, to 
 name and appoint, as often as need shall require, so many of such other 
 able men of the county then present as shall make up a full jin-y; and the 
 sheriff or other minister aforesaid shall, at such command of the court, 
 return such men duly qualified as shall be present or can be found to 
 serve on such jury, and shall add and annex their names to the former 
 panel, provided that where a special jury shall have been struck for the 
 trial of any issue, the talesmen shall be such as shall be impanelled upon 
 the common jury panel to serve at the same court, if a sufficient nuiuber 
 of such men can be found ; and the king, by any one so authorized or 
 assigned as aforesaid, and all and every the parties aforesaid, shall and 
 may, in each of the cases aforesaid, have their respective challenges to 
 the jurors so added and annexed, and the court shall proceed to the trial 
 of every such issue with those jurors who were impanelled, together with 
 the talesmen so newly added and annexed, as if all the said jurors had 
 been returned upon the writ or precept awarded to try the issue. 
 
 XXXVIII. And be it further enacted, that if any man, having been Fine on jn- 
 duly sumtnoned to attend on any kind of jury in any of the courts in Jiefau'lt?'^'"' 
 England or Wales hereinbefore mentioned, shall not attend in pursuance (See 7 & 8 
 of such summons, or being thrice called shall not answer to his name, or ^^ ^^"^ ^^^^ 
 if any such man, or any talesman, after having been called, shall be pre- j. 13J' 
 sent but not appear, or after his appearance shall wilfully withdraw him- 
 self from the presence of the court, the court shall set such fine upon 
 
 every such man or talesmen so making default (unless some reasonable 
 excuse shall be proved by oath or affidavit), as the com-t shall think meet: 
 provided always, that where any viewer, having been duly summoned to 
 attend on any jury, sliall make default as aforesaid, the court is hereby 
 authorized and required to set upon such viewer (unless some reasonable 
 excuse shall be proved as aforesaid) a fine to the amount often pounds at 
 the least, and as much more as the court under the circumstances of the 
 particular case shall think proper. 
 
 XXXIX. And be it further enacted, that every sheriff and other mi- Sheriff in- 
 nister, to whom the return of juries shall belong, shall be and is hereby (iemnififd in 
 indemnified for impanelling and returning any man named in the jurors' per"on"wh'ose 
 book, although he may not be qualified or liable to serve on juries : and naine is in 
 that if any sheriff or other such minister shall wilfully impanel and return [g^g ^''^ g
 
 520 APPENDIX. 
 
 CHAP. XVII. any man to serve on any jury before any of the courts in England or Wales 
 
 SECT. I. hereinbefore mentioned (except on the grand jury at any assizes or great 
 
 sessions), such man's name not being inserted in the jurors' book for the 
 
 \V. 3, c. 32, current year, or, if such book has not been delivered, then in the jurors' 
 
 if lie rcinrns book last delivered, or if any clerk of assize, associate, prothonotary, clevk 
 
 one tun in ^f i\^q peace, or otlicr ofFicer of any of the courts aforesaid, shall wilfully 
 
 3 Gto. 2 c!^ record the appearance of any man so summoned and returned, who did 
 25, s. 3); or not really appear, in every such case the court shall and may, upon exa- 
 a^size "records Tiiiiatiou in a summary way, set such fine upon such sheriff, minister, 
 appearances clerk of assize, associate, prothonotary, clerk of the peace, or other officer 
 when ihe offending, as the court shall thir.k meet. 
 
 appear,"to"be -^I-'- ^"^ ^^ ^^ further enacted, that the sheriff or his under-sheriff 
 fined. shall from time to time register alphabetically, in proper columns, to be 
 
 Sheriff, &c. prepared in tbe jurors' book for that purpose, the services of such men as 
 to register the sl,ail be Summoned and shall attend to serve as jurors on trials, before 
 
 iitiiiics Oi ill" , " . 
 
 rors who have any court of assize or nisi pi^ius, oyer and terminer, or gaol delivery, or 
 served. in the said courts of the said counties palatine or great sessions, and also 
 
 c. 25 s. 5.)' '■^'^ times of their services; and every man so summoned, and having 
 duly attended or served until discharged by the court, shall (upon appli- 
 cation by him made to such sheriff or under-sheriff, before he sh dl depart 
 from the place of trial) receive a certificate testifying such his service, 
 which certificate the sheriff or under-sheriff is hereby required to give on 
 payment of one shilling: provided always, that nothing herein contained 
 shall extend to any grand jurors or special jurors. 
 Clerk of the XLI. And be it further enacted, that the clerk of the peace, at every 
 
 peace to sessions of the peace to be holden for any county, riding or division in 
 
 li.«t of all who England orWales, shall make out a list of such men as shall be sum- 
 seive at ses nioiied and shall attend to serve on any grand jury or petty jury at such 
 e'rand o'rn iiv ^^ssions, together with their respective places of abode and additions, and 
 juries, and the date of their services, and shall, within twenty days after the close of 
 transmit iiie every such sessions, transmit such list to the sheriff or under-sheriff of the 
 rift to regis- county, who is hereby required forthwith to register the names of the 
 'er. men included in such list in the proper columns of the jurors' book for 
 
 Certificates of that purpose, together with the date of their services; and every man so 
 c^ven^b 'n^*' summoned, and having duly attended or served uniil discharged by the 
 clerk of ihe court of sessions, shall, upon application by him made to such clerk of the 
 peace. peace, before he shall depart from the place where the sessions are holden, 
 
 receive a certificate testifying such his service, which certificate the said 
 clerk of the peace is hereby required to give, on payment of one shilling. 
 Jurors not to XLI I. And be it further enacted, that no man shall be returned as a 
 besnmmoned jm-Qj- to serve at anv session of nisi prius or of gaol delivery, in the 
 
 JiEJiiM within • .. • 
 
 certain pe- County of Middlesex, who has served as a juror at either of such sessions 
 
 riods to as- in the said county, in either of the two terms or vacations next iinme- 
 
 fSee"3 G 2 diately preceding, and has the sheriff's certificate of having so served ; and 
 
 c. 25, s. 4; no mail shall be returned as a juror to serve on trials before any court of 
 
 4 G. 2, c. 7.) assize, nisi prius, oyer and terminer, or gaol delivery, or any of the said 
 
 courts of the three counties palatine, or tiie said great sessions, who has 
 served as a juror at any of such courts within one year before, in Wales, 
 or in the counties of Hereford, Cambridge, Huntingdon or Rutland, or 
 four years before in the county of York, or two years before in any other 
 Nor (o qnar- County, and has the sheriff's certificate of having so served ; and no man 
 ter sessions, shall be returned to serve upon any grand jury or petty jury, at any ses- 
 sions of the peace to be holden for any county, riding or division in Eng- 
 land or Wales, who has served as a juror at any such session within one
 
 APPENDIX. 
 
 i21 
 
 year before, in Wales, or in the counties of Hereford, Cambridge, Hun- ciiAr. xvii. 
 
 tingdon or Rutland, or two years before in any other county, and has the sect. i. 
 
 certificate of the clerk of the peace of having so served ; and if any sheriff " 
 
 or other minister shall wilfully transgress in any of the cases aforesaid, 
 
 the court may and is hereby required, on examination and proof of every 
 
 such offence in a summary way, to set such fine upon every such offender 
 
 as the court shall think meet: provided, that nothing herein contained 
 
 shall extend to grand jurors at the assizes or great sessions, or to special 
 
 jurors. 
 
 XLIII. And be it further enacted, that no sheriff, under-sheriff, co- No money to 
 roner, elisor, bailiff, or other officer or person whatsoever, shall, directly be taken lo 
 or indirectly, take or receive any inoney or other reward, or promise of jons'ser'wng. 
 money or reward, to excuse any man from serving or from being sum- (See 3 G. 2, 
 moned to serve on juries, or under any such colour or pretence ; and that ^^^5^ ^^^^^ 
 no bailiff or other officer appointed by any sheriff, under-sheriff, coroner, summoned 
 or elisor, to summon juries, shall summon any man to serve thereon, but those 
 other than those whose names are specified in a warrant or mandate, ^^arra'ut'." 
 signed by such sheriff, under-sheriff, coroner, or elisor, and directed to 
 such bailiff, or other ofticer ; and if any sheriff, under-sheriff, coroner, 
 elisor, bailiff, or other officer, shall wilfully transgress in any of the cases 
 aforesaid, or shall sunnnon any juror, not being a special juror, less than 
 ten days before the day on which he is to attend, or shall summon any 
 special juror less than three days before the day on which he is to attend, 
 except in the cases hereinbefore excepted, the court of assize, nisi prius, 
 oyer and terminer, gaol delivery, great sessions, or superior court of the 
 said counties palatine, or court of sessions of the peace, within whose 
 jurisdiction the offence shall have been committed, may and is hereby 
 required, on examination and proof of such offence, in a summary way, 
 to set such a fine upon every person so offending, as the court shall think 
 meet, according to the nature of the offence. 
 
 XLIV. And be it further enacted, that if any high constable within Penalties on 
 
 the meaning of this act shall, for fourteen days after the warrant of the b'ah con- 
 1 1111 1 !• ij- 1- II c Stables lor 
 
 clerk of the peace shall be served on him, or lett at his usual place 01 neglecting to 
 
 abode, refuse or neglect to issue and deliver his precept as hereinbefore issue pre- 
 directed, to the churchwardens and overseers of any parish, or to the '^'^ '' 
 overseers of any township within his constablewick ; or shall in like man- 
 ner refuse or neglect to issue and deliver his prece))t to the churchwardens 
 and overseers of any parish, or to the overseers of any township, where 
 such parish or township extends into any other hundred, lathe, wapen- 
 take, or other district besides his own, either in the same or a different 
 county, (provided the principal church of such parish or townsliip shall 
 be situate within his own hundred, lathe, wapentake, or other like district,) 
 or shall refuse or neglect in any of the foregoing cases to annex to the 
 respective precepts such a number of the forms of return as he shall bond 
 fide deem sufficient, or to deliver such additional number as may be de- 
 manded of him by any churchwarden or overseer as aforesaid (provided 
 he has such additional number in his possession), or in case of his not so 
 having them, shall refuse or neglect to apply forthwith to the clerk of the 
 peace for such additional number, and to deliver the same to the party so 
 demanding within three days after his receipt thereof; or shall on due 
 notice refuse or neglect to attend at any such petty sessions, or such ad- 
 journment thereof as aforesaid, or to receive any list or lists there tendered 
 by the justices present, or to deliver the same to the quarter sessions next 
 bolden for the county, riding, or division, at the time and in the manner
 
 522 
 
 APPENDIX. 
 
 CHAP. xvri. 
 
 SECT. I. 
 
 I'cnrilties on 
 cliiircliwar- 
 <lfns and 
 oversells for 
 iifjjlecling to 
 make out 
 ViAs, &.C, 
 
 Penallies on 
 clerks of 
 peace and 
 sheriffs neg- 
 leciing iheir 
 duty. 
 
 hereinbefore directed, or shall make any alteration in any sucli list after 
 his receipt thereof; every snch high constable ollLMiding in any of the 
 foregoing cases, shall for every sucli offence forfeit a sum not exceeding 
 ten ])ounds, nor less than forty shillings, at the discretion of the justice 
 before whom he shall be convicted. 
 
 XLV. And be it further enacted, that if any churchwarden or over- 
 seer of any parish, or any overseer of any township within the meaning 
 of this act, shall refuse or neglect (unless prevented by sickness) to assist 
 in making out any list required by this act, so that the same shall not be 
 made out at the time and in the manner hereinbefore directed ; or shall 
 wilfully omit out of such list any man whose name ought to be inserted 
 therein, or shall wilfully insert therein the name of any man who ought 
 to be omitted, or shall take any money or other reward for omitting or 
 inserting any man whatsoever, or shall wilfully insert therein a wrong 
 description of tlie name, place of abode, title, quality, calling, business, or 
 tlie nature of the qualification of any man ; or shall refuse or neglect, in 
 case the number of forms of return delivered by the high constable shall 
 be insufficient, to apply to the high constable for a sufficient number, so 
 that the list may be made out at the time and in the manner hereinbefore 
 directed; or shall refuse or neglect to fix a copy of such list duly signed, 
 or to subjoin thereto such notice as hereinbefore required, on the principal 
 door of any church, chapel, or other public place of religious worship 
 •within their respective parishes or townships, on any of the Sundays on 
 ■which the same ought to be so fixed ; or shall refuse to allow any inha- 
 bitant of their respective parishes or townships to inspect such list or a 
 true copy thereof gratis, at any reasonable time during the three weeks 
 hereinbefore mentioned; or shall, on due notice, refuse or neglect to 
 produce such list at such petty sessions as aforesaid, or to answer on oath 
 such questions touching the same as shall there be put, or to attend at 
 such petty sessions, or any such adjournment thereof as aforesaid ; or 
 shall refuse to allow the said petty sessions, or any justice of the peace, 
 upon due request, to inspect or make any extracts from the poor rate of 
 any parish or township within their respective divisions, for the purposes 
 hereinbefore mentioned, such rate being in the custody of the party so 
 refusing ; every such churchwarden or overseer offending in any of the 
 foregoing cases shall, for every such offence, forfeit a sum not exceeding 
 ten pounds nor less than forty shillings, at the discretion of the justice 
 before whom he shall be convicted ; and the justice, before whom such 
 offender shall be convicted of any such offence of wrongful insertion or 
 omission, shall forthwith, in writing under his hand, certify the same to 
 the clerk of the peace of the county, riding, or division in which the man or 
 men so wrongfully omitted or inserted shall reside, and the said clerk of 
 the peace shall cause the list in which such wrongful insertion or omission 
 shall have occurred to be corrected according to such certificate, and shall 
 also give notice thereof to the sheriff or under-sheriff, who shall correct 
 the jurors' book accordingly. 
 
 XL VI. And be it further enacted, that if any clerk of the peace shall 
 refuse or neglect to cause a sufficient number, either of warrants, precepts, 
 or forms of return, to be printed in the manner hereinbefore directed, or 
 shall refuse or neglect to issue and deliver to any high constable within 
 the meaning of this act, the warrant and precepts as hereinbefore directed, 
 or to annex to the same such a number of the forms of return as he shall 
 bona Jul e deem sufficient, or to deliver to any high constable such addi- 
 tional number thereof as he may apply for vvithin three days after such
 
 APPENDIX. 
 
 523 
 
 application ; or sliall refuse or neglect to provide or prepare a jurors' book chap. xvli. 
 within the time or in the manner and form hereinbefore prescribed, or to ^^"' ^' 
 deliver the same to the sheriff or under-sheriff of the county within the 
 time hereinbefore prescribed, or to give notice to the sheriff or under- 
 sheriff of any wrongful insertion or omission, certified to him by any jus- 
 tice of the peace as aforesaid, or to deliver to any man who shall have 
 been summoned and have duly attended or served as a grand juror, or 
 petty juror, at the sessions of the peace, a certificate of such man's service, 
 on his application and payment as aforesaid, or to transmit to the sheriff 
 or under-sheriff a list of tlie men who shall have been so summoned and 
 have so attended or served, within the time and in the manner hereinbefore 
 directed ; or if any clerk of any such petty sessions, to be holden as afore- 
 said, shall refuse or neglect to give due notice thereof to any high con- 
 stable, or to the churchwardens and overseers of any parish, or to the 
 overseers of any township within such division : or if any sheriff or under- 
 sheriff of a county shall make or cause to be made any alteration whatso- 
 ever in the list of jurors contained in the jurors' book, except in conse- 
 quence of the conviction of the churchwarden or overseer hereinbefore 
 provided for; or if any sheriff or under-sheriff of a county, or any sheriff 
 or secondary of London, shall neglect or refuse to provide or prepare a 
 list of special jurors in the maimer and witliin the time hereinbefore pre- 
 scribed, or shall wilfully write or cause to be written therein the name of 
 any person not qualified, or shall wilfully omit thereout the name of any 
 person duly qualified as a special juror, or shall neglect or refuse to write 
 or cause to be written the several numbers contained in such list upon 
 distinct pieces of parchment or card, in the manner and within the time 
 hereinbefore prescribed, or shall subtract or destroy, or by any default or 
 neglect lose, any of the said pieces of parchment or card, or shall neglect 
 or refuse, upon discovery of such loss, to supply the same within five 
 days; or if any sheriff or under-sheriff" of a county shall refuse or neglect 
 to prepare, or keep for inspection as aforesaid, a copy of the panel in the 
 cases hereinbefore provided for, or to register the service of any juror, as 
 hereinbefore directed, or to deliver to any man who shall have been sum- 
 moned, and have duly attended or served as a juror at any court of assize, 
 nisi prius, oyer and terminer, or gaol delivery, or in any of the said courts 
 of the three counties palatine or great sessions, a certificate of such man's 
 service, on his application and payment as aforesaid ; or shall refuse or 
 neglect, within ten days after tlie next succeeding sheriff' shall be sworn 
 into or have entered upon office, to deliver over to him, as well all the 
 jurors' books and lists that shall be made or prepared in the year of his 
 sheriffalty, as also all such other like books and lists as were prepared in 
 the sheriffalty of any of his predecessors, within four years then next 
 preceding, and which were delivered over to him by any of his prede- 
 cessors; every such clerk of the peace, clerk of the petty sessions, sheriff 
 or under-sheriff", sheriff of London or secondary, offending in any of the 
 said cases, shall for every such offence forfeit the sum of fifty pounds, one 
 moiety whereof shall be to the use of his majesty, his heirs and successors, 
 and the other moiety, with full costs, to such person as shall sue for the 
 same, in any of his majesty's courts of record at Westminster, by action 
 of debt, bill, plaint, or information, wherein no essoign, protection, or 
 wager of law, nor more than one imparlance shall be allowed. Juries de me- 
 
 XLVIL Provided always, and it is hereby further enacted, that nothing dietate. (See 
 herein contained shall extend or be construed to extend to deprive any ^f g'^^'g^.' 
 alien indicted or impeached of any felony or misdemeanour, of the right 28 Edw. 3, 
 
 c. 13; 8 H. 6, 
 c. 29.)
 
 52i APPENDIX. 
 
 CHAP. xviT. of being tried by a jury cle medietate lingua:, but tliat, on the prayer of 
 SECT. I. every alien so indicted or impeached, the siierifi'or otiier proper minister 
 shall, by command of the court, return for one half of the jury a competent 
 number of aliens, if so many there be in the town or place where the trial 
 is had, and if not, then so many aliens as shall be found in the same town 
 or place, if any ; and that no such alien juror shall be liable to be chal- 
 lenged for want of freehold or of any other qualilication required by tliis 
 act; but every such alien may be challenged for any other cause, in like 
 manner as if he were qualified by this act. 
 Jiisiiccs not XL VIII. And be it further enacted, that no justice of the peace shall 
 
 to be siiin- ]jg summoned or impanelled as a iuror, to serve at any sessions of the 
 
 moiled lis ,,,..,. 1. „,.,,■'.'.. •' 
 
 jurors at ses- Jieacc lor the jurisdiction oi which he is a justice. 
 
 «'"n5- XLIX. And be it further enacted, that the inhabitants of the city and 
 
 Inhabitantsof liberty of Westminster shall be and are hereby exempted from serving 
 
 not liable to on any jury at the sessions of the peace for the county of Middlesex, 
 
 serve at Mid- L. And be it further enacted, that the qualification hereinbefore re- 
 
 sion3''(7'&' 8 ^l^^ii'^d for jurors, and the regulations for procuring lists of persons liable 
 
 Will. 3, c. 32, to serve on juries, shall not extend to the jurors or juries in any liberties, 
 
 *■ ^-^ franchises, cities, boroughs, or towns corporate not being counties, or in 
 
 QiiHlirication jj,^y q\\\q^ boroughs, or towns being counties of themselves, which shall 
 
 ol jurors in ■' . ' o ' . . -. . ^ . ., • • i i i • ii 
 
 liberties, respectively possess any jurisdiction, civil or criininal ; but tliat in all 
 
 cities, and bo sucli places the sheriffs, bailiffs, or other ministers having the return of 
 mafn as 'be-*^' j"'"'6s, shall prepare their panels in the manner heretofore accustomed: 
 fore. provided always, that no man shall be impanelled or returned by the she- 
 
 Qualification riffs of the city of London, as a juror to try any issue joined in his Ma- 
 Je '^"'i'!,""- iesty's Courts of Record at Westminster, or to serve on anv jury at the 
 
 (see JGeo. 2, -^ •'. „ . i i i- • /■ 'i 
 
 c. 25, s. 19.) sessions or oyer and terminer, gaol delivery, or sessions ot tiie peace, to 
 Repeals 11 be held for the said city, who shall not be a householder, or the occupier 
 Hto. 7, c. 21. of a shop, warehouse, counting-house, chambers, or office, for the purpose 
 of trade or commerce, within the said city, and have lands, tenements, or 
 personal estate of the value of one hundred pounds; and that the lists of 
 (3 Geo. 2, c. men resident in each ward of the city of London, who shall be so quali- 
 IVrsonf iin- ^^^ ^^ herein mentioned, shall be made out, with the proper quality or 
 less qualified addition, and the place of abode of each man, by the parties who have 
 to serve as heretofore been used and accustomed in each ward to make out the same 
 causeVnoTto respectively; and that such shop, warehouse, counting-house, chambers, 
 be returned to or office as aforesaid, shall, for the purposes of this act, be respectively 
 forTaDiul'*'' '^^^"^^'J ^"^^ taken to be the place of abode of every occupier thereof: 
 offences. provided also, that no man shall be impanelled or returned to serve on 
 
 any jury for the trial of any capital offence in any county, city or place, 
 who shall not be qualified to serve as a juror in civil causes within the 
 same county, city or place ; and the same matter and cause being alleged 
 by way of challenge, and so found, shall be admitted and taken as a prin- 
 cipal challenge ; and the person so challenged shall and may be ex- 
 amined, on oath, of the truth of the said matter. 
 Conris of nisi LI. And be it further enacted and declared, that every court of nisi 
 Lond'**^' '" Pi'J"^> °y^'' ^^^^ terminer, gaol delivery, and sessions of the peace held for 
 fine jurors. the city of London, shall and may fine any man duly summoned to 
 attend upon any kind of jury in any of such courts respectively, and 
 making default, or any talesman or viewer making default, in the same 
 manner to all intents and purposes as such respective courts in England 
 and Wales hereinbefore mentioned. 
 Qualification LI I. And be it further enacted, that no man shall be liable to be sum- 
 ilaulili &" ™oned or impanelled to serve as a juror in any county in England or
 
 APPENDIX. 
 
 525 
 
 Wales, or in London, upon any inquest or inquiry to be taken or made chap. xvii. 
 by or before any sheriff' or coroner, by virtue of any writ of inquiry, or by sixt. i. 
 or before any commissioners appointed under the great seal, or the seal 
 of the court of Exchequer, or the seals of the courts of the said counties pa- 
 latine, or the seals of the courts of great session of Wales, who shall not be 
 duly qualified accordin;; to this act to serve as a juror upon trials at nisi prius 
 in such county in England or Wales, or in London respectively : provided 
 always, that nothing herein contained shall extend to any inquest to be 
 taken by or before any coroner of a county by virtue of his otKce, or to 
 any inquest or inquiry to be taken or made by or before any sheriff or 
 coroner of any liberty, franchise, city, borough or town corporate, not 
 being counties, or of any city, borough, or town, being respectively coun- 
 ties of themselves, but that the coroners in all counties, when acting 
 otherwise than under a writ of inquiry, and the sheriffs and coroners in 
 all such places as are herein mentioned, shall and may respectively take 
 and make all inquests and inquiries by jurors of the same description, as 
 they have been used and accustomed to do before the passing of this act. 
 
 LIIL And be it further enacted, that if any man having been duly Slienffs.coro- 
 summoned and returned to serve as a juror in any county in England "o,i';„f,"i„„. 
 or Wales, or in London, upon any inquest or inquiry before any sheriff ers may tine 
 or coroner, or before any of the commissioners aforesaid, shall not, after {'(^'"^^^".'"ce""' 
 being opently called three times, appear and serve as such juror, every 
 such sheriff, or in his absence the under-sherifi' or secondary, and such 
 coroner and commissioners respectively, are hereby authorized and re- 
 quired (unless some reasonable excuse shall be proved on oath or aiTida- 
 vit), to impose such fine upon every man so making default as they shall 
 respectively think fit, not exceeding five pounds ; and every such sheriff, 
 under-sheriff, secondary, coroner and commissioners respectively, shall 
 make out and sign a certificate, containing the christian and surname, 
 the residence and trade or calling of every man so making default, together 
 with the amount of the fine imposed, and the cause of such fine, and 
 shall transmit such certificate to the clerk of the peace for the couiity, 
 riding or division in which every such defaulter shall reside, on or before 
 the first day of the quarter sessions next ensuing; and every such clerk (See 3 Geo. 4, 
 of the peace is hereby required to copy the fines so certified on the roll <=• 46.) 
 on which all fines and forfeitures imposed at such quarter sessions shall 
 be copied; and the same shall be estreated, levied, and applied in like 
 manner, and subject to the like powers, provisions and penalties, in all 
 respects, as if they had been part of the fines imposed at such quarter 
 sessions. 
 
 LIV. And be it further enacted, that every man duly summoned and ^,^„3'„"""" 
 returned to serve upon any jury for the trial of any cause or criminal ^er^e on 
 prosecution, to be tried in any court of record holden within the said city jinies in infe- 
 of London, other than the courts hereinbetbre respectively mentioned, or ^l^i ^^"Zdixx?^, 
 in any other liberty, franchise, city, borough, or town, who shall not ap- (see -29 Geo." 
 pear and serve on such jury (after being openly called three times, and f^^^v[^;,^„[" 
 on proof being made on oath of the man so making default having been „„„,. ,han 
 duly summoned) shall forfeit and pay for every such his default such 40s. nor less 
 fine, not exceeding forty shillings, nor less than twenty shillings, as the i„",he*cou"t" 
 court shall deem reasonable to impose, unless some just cause for such be satisfied 
 defaulter's absence shall be made appear, by oath or affidavit, to the satis- ^/'^',,'^'^^,^^^^"'* 
 faction of the court; and that if any person on whom such fine shall be 
 imposed shall refuse to pay the same to the person who shall be autho- 
 rized by the court to receive the same, it shall be lawful for such court
 
 526 
 
 Al'PKNDlX. 
 
 CHAP. XVII. 
 
 SECT. I, 
 
 Fine leviable 
 by distress 
 aud sale. 
 
 Fine to be 
 paiil lo the 
 proper olliccr 
 of ilie conn, 
 to be disponed 
 of as oilier 
 lines of court. 
 
 How fines and 
 penalties shall 
 be recovered 
 aud applied. 
 
 Form of con- 
 viction. 
 
 Conviction 
 not to be 
 quashed for 
 want of form. 
 
 then, or at its next sitting, and tlie same is hereby authorized and re- 
 quired, by order of tlie coin't, signed by tlie proper officer tliereof, to 
 cause every such fine to be levied by distress and sale of the goods and 
 chattels of the person on whom such fine shall have been imposed : and 
 the overplus money, if any, which shall remain after payment of such 
 fine, and deducting the reasonable charges of such distress and sale, shall 
 be rendered to the person whose goods and chattels shall have been so 
 distrained and sold ; and that every fine which shall be so imposed, shall, 
 when received or levied, be paid by the person who shall receive or levy 
 the same to the proper officer of the liberty, franchise, city, borough or 
 town in which the court was holdeii wherein such fine was imposed, to 
 be apjjlied to such uses as issues set on jurors, or other fines set in courts 
 holdeii within such liberty, franchise, city, borough or town, are by 
 charter, prescription, or usage, applicable. 
 
 LV. And be it further enacted, that all fines to be imposed under this 
 act by any of the king's courts of record at Westminster, or any of the 
 superior courts, civil or criminal, of the three counties palatine, or by any 
 court of assize, nisi prius, oyer and terminer, or gaol delivery, or by any 
 court of sessions of the peace in England, or by any court of great ses- 
 sions or sessions of the peace in Wales, shall be levied and applied in the 
 same manner as any other fines imposed by the same court ; and that all 
 other penalties hereby created (for which no other remedy is given) shall, 
 on conviction of the offender before any one justice of the peace within 
 his jurisdiction, be levied, unless such penalty be forthwith paid, by dis- 
 tress and sale of the oflTender's goods and chattels, by warrant under the 
 hand and seal of such justice, who is hereby authoi-ized to hear and ex- 
 amine witnesses on oath or affirmation on any complaint, and to deter- 
 mine the same, and to mitigate the penalty, if he shall see fit, to the ex- 
 tent of one moiety thereof; and all penalties, the application whereof is 
 not hereinbefore particularly directed, shall be paid to the complainant; 
 and for want of sufficient distress, tlie offender shall be committed by 
 warrant under the hand and seal of such justice, to the common gaol or 
 house of correction, for such term not exceeding six calendar months, as 
 such justice shall think proper, unless such penalty be sooner paid. 
 
 LVI. And for the more easy and speedy conviction of oflTenders 
 against this act, be it further enacted, that the justice before whom any 
 person shall be convicted of any offence against this act, shall and may 
 cause the conviction to be drawn up in the following form of words, or in 
 any other form of words to the same effect, as the case shall happen, vi- 
 delicet : — 
 
 " Be it remembered, that on in the year of our lord , at 
 
 ■ , A. B. is convicted before me, C. D , one of his majesty's justices 
 
 of the peace for the of , for that he the said A. B. did [specify- 
 ing the offence, and the time and place where the same was connnitled, us 
 the case shall 6e], and the said A. B. is for his said offence adjudged by 
 me the said justice to forfeit and pay the sum of . 
 
 " Given under my hand and seal, the day and year first above-men- 
 tioned." 
 
 LVII. And be it further enacted, that no such conviction shall be 
 quashed for want of form, or be removed or removable by certiorari, or 
 by any other writ or process whatsoever, into any of his majesty's courts 
 of record at Westminster; and that where any distress shall be made for 
 any penalty to be levied by virtue of this act, the distress itself shall not 
 be deemed to be unlawful, nor the party making the same be deemed a
 
 APPENDIX. 
 
 527 
 
 trespasser, on account of any defect or want of form in the summons, chap. xvii. 
 conviction, warrant of distress, or other proceedings relating thereto, nor sect. i. 
 shall such party be deemed a trespasser ab initio, on account of any irre- 
 gularity which shall be afterwards done by him; but the person ag- 
 grieved by such irregularity shall and may recover full satisfaction for the 
 special damage (if any) in an action upon the case, first giving notice in 
 writing of the cause of action to the opposite party one calendar month 
 before the commencement of such action; but no plaintiff shall recover 
 in any action for such irregularity, if tender of sufficient amends shall 
 have been made before such action brought, or if a sufficient sum of 
 money shall have been paid into court after such action brought, by or 
 on behalf of the party distraining. 
 
 LVIII. And be it further enacted, that if any suit or action shall be Persons sued 
 prosecuted against any person, for any thing done in pursuance of this Ji„'"„^7n 'p»r-^ 
 act, such person may plead the general issue, and give this act and the snanee of iiiis 
 special matter in evidence at any trial to be had thereupon ; and if a ver- ^^^'"^1^^^^^^^ 
 diet should pass for the defendant, or the plaintiff shall become nonsuit, ^^^J^ """ 
 or discontinue his or her action after issue jouied, or if, upon demurrer or 
 otherwise, judgment shall be given against the plaintiff, the defendant 
 shall recover double costs, and have the like remedy for the same as any 
 defendant hath by law in other cases; and though a verdict shall be 
 given for the plaintiff in any such action, such plaintiff shall not have 
 costs against the defendant, unless the judge before whom the trial shall 
 be shall certify his approbation of the action, and of the verdict obtained 
 thereupon. 
 
 LIX. And be it further enacted, that all actions, suits and prosecu- Venne (o be 
 lions to be commenced against any person for any thing done in pursuance ^^^l'^,^"y ^lUere 
 of this act, shall be laid and tried in the county where the fact was com- ti,e tact is 
 mitted, and shall be commenced within six calendar months after the fact committed, 
 committed, and not otherwise ; and that notice in writing of such cause 
 of action shall be given to the defendant or defendants one calendar 
 month at least before the commencement of the action. 
 
 LX. And be it further enacted, tliat from and after the passing of this Writs of at- 
 act, it shall not be lawful either for the king, or any one on his behalf, or ab",'i/,j°^df 
 for any party or i)arties, in any case whatsoever, to commence or prose- 
 cute any writ of attaint against any jury or jurors, for the verdict by them 
 given, or against the party or parties who shall have judgment upon such 
 verdict; and that no inquest shall be taken to inquire of the conceal- and conceal- 
 ments of other inquests; but that all such attaints and inquests shall qlfj^sts."' '" 
 henceforth cease, become void, and be utterly abolished ; any law, statute 
 or usage to the contrary notwithstanding. 
 
 LXI. Provided always, and be it further enacted and declared, that, Embracers 
 notwithstanding any thing herein contained, every person who shall be ?"r'I,r7pun'i*h- 
 guilty of the oftence of embracery, and every juror who shall wilfully or able by tine 
 corruptly consent thereto, shall and may be respectively proceeded against a'"' impt-isun- 
 by indictment or information, and be punished by fine and imprisomnent, ""*" ' 
 in like manner as every such person and juror might have been before 
 the passing of this act.
 
 528 APPENDIX. 
 
 CHAT. xvn. 
 SECT. I. 5&6 Will. IV. c. 76. 
 
 An Act to provide for the Regulation of Municipal Corporations in 
 England and Wales. 
 
 Wlio (o be CXXI. And be it enacted, that every person, being a burgess of any 
 
 jurors. borough wherein there sliall be a separate court of sessions of the peace, 
 
 or a court of record for tlie trial of civil actions, (unless he shall be ex- 
 empt or disqualified otherwise than in respect of property from serving on 
 juries by virtue of an act ])asscd in the sixth year of the reign of King 
 6G. 4,c. 50. George the Fourth, intituled " An Act for consolidating and amending 
 the Laws relative to Jurors and Juries,") shall be qualified and liable 
 to serve on grand juries in such borougli, and also upon juries for the 
 trial of all issues joined in any court of quarter sessions of the peace, and 
 in any court of record for the trial of civil actions triable within the bo- 
 Summoning rough of which such person shall be a burgess ; and the clerk of the peace 
 of jurors, &c. of every such borough shall give public notice of the time and place of 
 holding every such quarter sessions of the peace, ten days at the least be- 
 fore tlie holding thereof, and shall, seven days at the least before the 
 holding thereof, cause to be summoned a suOicient number of persons, 
 being qualified and liable as aforesaid, to serve as grand jurors at such 
 sessions; and the clerk of the peace and registrar of the court of record 
 respectively shall also cause to be sunmioned not less than thirty-six nor 
 more than sixty persons so qualified and liable as aforesaid to serve as 
 jurors at every such sessions, and at the holding of every such court of 
 record for the trial of causes, in case there shall be any cause then to be 
 tried ; and such summons shall be made by showing to the person to be 
 summoned, or in case he shall be absent from the usual place of his 
 abode by leaving with some person therein inhabiting, notice under the 
 hand of such clerk of the peace or registrar respectively containing the 
 substance of such summons; and such clerk of the peace shall make out 
 a list of the names of such persons so sunmioned as grand jurors, and the 
 clerk of the peace and registrar respectively shall also make out a panel 
 of such persons so summoned other than grand jurors, and such list and 
 panel shall respectively contain therein the Christian names and sur- 
 names, places of abode, and descriptions of the several persons therein 
 Fine on named ; and if any person, having been duly summoned to attend on any 
 
 no'i"-"icnd- J^'T' '^^''^'^ "*''' ^'■'^s"*^l i'^ pursuance of such summons, or, being thrice 
 ancu. called, shall not answer to his name, or after his appearance wilfully with- 
 
 draw himself from the presence of the court, the court shall impose such 
 fine upon every person so making defiiult (unless some reasonable excuse 
 shall be proved to the satisfaction of the court) as the court shall think 
 meet; and if any person on whom such fine shall be imposed shall refuse 
 to pay the same to the person who shall be authorized by the court to 
 receive the same, it shall be lawful for the court, then or at its next sit- 
 ting, by order of the court, signed by the clerk of the peace or registrar 
 respectively, to cause to be levied, by distress and sale of the goods of the 
 person on whom such fine shall have been imposed, every such fine, and 
 the reasonable charges of such distress and sale ; and every fine so re- 
 ceived shall be paid to the treasurer of the borough, to be by him carried 
 to the account of the borough fund hereinbefore mentioned : provided 
 nevertheless, that no person shall be sunnnoned to serve as a juror at such 
 sessions or court of record oflener than once in one year.
 
 APPENDIX. 
 
 529 
 
 CXXII. And be it enacted, that after the passing of this act every chap. xvii. 
 member of the council for tlie time being of every borough, and every ^ect. i. 
 justice assigned to keep the peace therein, and the treasurer and town jj^^j^ers of 
 clerk for the time being of every such borough, shall be exempt and dis- the counsel, 
 qualified from serving on any jury summoned within such borough re- ^^;jj*'^^^^"JP'g 
 spectively, and exempt from serving on any jury summoned to serve in on juries; 
 the county wherein such borough is situate ; and all burgesses of every burgesses of 
 borough in and for which a separate court of quarter sessions of the peace J^^h'kh'have 
 shall be holden shall be exempt from serving on any jury summoned for quarter ses- 
 the trial of issues joined in any court of general or quarter sessions of the ^ions f^empt^ 
 peace in the county wherein such borough is situate. county qnar- 
 
 CXXIII. And be it enacted, that after the passing of this act no per- ter sessions. 
 son in any borough shall continue to be exempt from serving on juries All chartered 
 in any of the king's courts of record at Westminster, or in the superior f^^^^J^'P^^^^^g 
 courts, civil or criminal, of the counties palatine of Lancaster and Durham, „„ juries 
 or in any court of assize, nisi priiis, oyer and terminer, gaol delivery, or abolished, 
 sessions of the peace, or in any other of the king's courts, by virtue of any 
 writ, grant, charter, prescription or otherwise ; and so much of an act o G. 4, c 50. 
 made in the sixth year of the reign of his late majesty King George the pealed'/*' 
 Fourth, intituled " An Act for consolidating and amending the Laws 
 relative to Jurors," as provides that all persons in any borough exempt 
 from serving upon juries in any of the courts aforesaid, by virtue of any 
 prescription, charter, grant or writ, shall continue to have and enjoy such 
 exemption in as ample a manner as before the passing of that act, and 
 shall not be inserted in the lists thereafter mentioned, shall be and the 
 same is hereby repealed. 
 
 2 &3 Vict. c. 71. 
 An Jet for regulating the Police Courts in the Metropolis. 
 IV. And be it enacted, that the said magistrates (appointed to the Magistrates, 
 police courts of the metropolis), and their clerks, ushers, doorkeepers and .v,';;,^^^!^" '!,'(, 
 messengers, shall be exempt and disqualified from being returned and on juries, 
 from serving on any juries or inquests whatsoever, and shall not be in- 
 serted in any lists of men qualified and liable to serve as jurors. 
 
 9 & 10 Vict. c. 9.5. 
 
 An Act for the more casi/ Recover^/ of Small Debts and Demands in 
 England. 
 
 LXX. And be it enacted, that, in all actions where the amount '^\",'^';"', "'''^ 
 claimed shall exceed five pounds, it shall be lawful for tlie plaintiff or de- a*j'"y\vi?eii 
 fendant to require a jury to be summoned to try the said action ; and in parties le- 
 all actions where the amount claimed shall not exceed five pounds it shall l''"^ "• 
 be lawful for the judge, in his discretion, on the application of either of 
 the parties, to order "that such action be tried by a jury ; and in every 
 case such jury shall be summoned according to the provisions hereinafter 
 contained : provided always, that the party requiring a jury to be sum- 
 moned shall give to the clerk of the court, or leave at his office, such 
 notice thereof as shall be directed by the rules made for regulating the 
 practice of the court as hereinafter provided ; and the said clerk shall 
 cause notice of such demand of a jury, made either by the plaintiff or de- 
 fendant, to be communicated to the other party to the said action, either 
 
 M M
 
 r,30 APPENDIX. 
 
 CHAP. XVII. by post, or by causing the same to be delivered at his usual place of 
 srcT. I. abode or business; but it shall not be necessary for cither party to prove 
 
 on the trial tliat such notice was communicated to the other party by the 
 
 clerk. 
 Who shall be LXXII. And be it enacted, that tlie sheriff of every county, and the 
 jurors. ]n<rh bailiffs of Westminster and Southvvark, shall cause to be delivered to 
 
 the clerk of the court a list of persons qualified and liable to serve as 
 jurors in the courts of assize and nisi prius for their county, city and bo- 
 rough respectively, within fourteen days from the receipt of the jury 
 book from the clerk of the peace of the county or other officer, each list 
 containing only the names of persons residing within tlie jurisdiction of 
 the court, for wliich list the said sheriffs and high bailiffs shall be entitled 
 to receive out of the general fund of the court a fee after the rate of two- 
 pence for every folio of seventy-two words ; and whenever a jury shall be 
 required the clerk of the court shall cause so many of the persons named 
 in the list as shall be needed in the opinion of the judge to be summoned 
 to attend the court at a time and place to be mentioned in the summons, 
 and shall administer or cause to be administered to such of them as shall 
 be impanelled to try any cause or causes an oath to give true verdicts 
 according to the evidence ; and the persons so summoned shall attend at 
 the court at the time mentioned in the summons, and in default of attend- 
 ance shall forfeit such sum of money as the judge shall direct, not heb.g 
 more than five pounds for each default; and the delivery of such sum- 
 mons to the person whose attendance is required on such jury, or delivery 
 thereof to his wife or servant, or any inmate at his usual place of abode, 
 trading or dealing, shall be deemed good service ; provided always, that 
 no person shall be summoned or compelled to serve on such jury more 
 than twice within one year, or who shall have been summoned and shall 
 have attended upon any jury at the assizes, or any court of nisi prius, or 
 at the central criminal court for the same county, within six calendar 
 months next before the delivery of such summons. 
 Number of LXXII I. And be it enacted, that whenever there are any jury trials 
 
 the jury. five jurymen shall be empanelled and sworn, as occasion shall require, to 
 
 give their verdicts in the causes which shall be brought before them in 
 the said court, and being once sworn shall not need to be re-sworn in 
 each trial ; and either of the parties to any such cause shall be entitled 
 to his lawful challenge against all or any of the said jurors in like manner 
 as he would be entitled in any superior court ; and the jurymen so sworn 
 shall be required to give an unanimous verdict. 
 
 Sect. 2. 
 Warrant to summon Nisi Prius Jury at Assizes. 
 
 [First copy the jurors' names, places of abode, and descriptions j then proceed 
 as follows:] 
 
 N. {to wit.) A. B., esquire, sheriff of the said county, to J. S., my 
 bailiff, greeting : You are hereby required to warn and summon the 
 several persons above-named, personally to be and appear upon the jury, 
 at the next assizes or general gaol delivery to be held for this county, at 
 
 the castle of C, on Saturday, the day of instant, then and there 
 
 to try the several issues between the parties, on pain of one hundred 
 shillings a man. Hereof fail not. Given under the seal of my ofHce, 
 
 this day of , 18 — . 
 
 {Seal of office.) By the sheriff.
 
 APPENDIX. 
 
 531 
 
 War7-ant to summon Crown Jury. 
 The same as before, only instead of "to try the several issues between 
 the parties," sflj/ " to try such matters and things as shall be given them 
 in charge." 
 
 Warrant to summon a Special Jury on a View. 
 
 N. {to wit.) A. B., esquire, sheriff of the said county, to , my 
 
 bailiff, greeting: You are hereby required to warn and sununon the 
 several persons undernamed, personally to be and appear at the next 
 
 assizes to be held for this county, on Saturday, the day of , at 
 
 the castle of N., to try the said cause (A") : and in the meantime the said 
 persons are desired and requested to be and appear at the house of Mr. 
 
 , knoivn by the sign of , in , at o'clock in the noon 
 
 of the same day, where they will be attended by and , persons 
 
 appointed by the court to shoio them the premises in question : and hereof 
 
 fail not at your peril. Given under the seal of my office, this day 
 
 of , 18—. 
 
 (Seal of office.) By the sheriff. 
 
 CHAP. XVII. 
 SECT. II. 
 
 Return of the Assize Precept. 
 I have caused to be publicly proclaimed throughout my whole baili- 
 wick, that all who shall prosecute against those prisoners be then and 
 there to prosecute against them, as shall be just. I have also given no- 
 tice to all justices of the peace, mayors, coroners, escheators, stewards, 
 and also to all chief constables and bailiffs of every hundred and liberty 
 •within my county, that they be then and there, in their own person, with 
 their rolls, records, indictments, and other remembrances, to do those 
 things which to their offices in this behalf appertain to be--done, as is 
 •within commanded me. The residue of the execution of this precept ap- 
 pears in certain schedules to the same annexed. 
 
 A. B., esquire, sheriff. 
 
 First Panel. 
 Names of the grand jury to inquire for our lord the king, for the body 
 of the said county. 
 
 1. The Right Honourable Lord Viscount R. 
 
 2. H. B., of A., esquire. 
 
 &c. A. B., esquire, sheriff. 
 
 Second Panel. 
 N. {to tvit.) Names of the jury to try traverses, and the prisoners at 
 the bar. 
 
 o' r ■ !?■' °f ■ \ Summoning officer, S. S. 
 
 Each of the said jurors is by himself separately attached by pledges. — 
 John Doe and Richard Roe. 
 
 A. B., esquire, sheriff. 
 
 (fc) The words in italics not to be inserted, unless there is to be a view. 
 
 M M 2
 
 APPENDIX. 
 
 CHAP. XVII. 
 SECT. n. 
 
 N. {io wit.) Na 
 
 1. A. B., of 
 
 2. C. D., of 
 
 
 Third Panel. 
 Names of the jury to try the issues joined, &c. &c. 
 
 A. B., esquire, sheriff. 
 
 Fourth Panel. 
 
 N. {to wit.) A calendar of the justices of the peace of our lord the 
 
 king, mayors, coroners, bailiffs of liberties and hundreds, and constables 
 
 of hundreds, in the county of N., summoned to be at the assizes and 
 
 general session of oyer and terminer and gaol delivery, to be holdcn at 
 
 , in the said county, the day of , in the year of the 
 
 reign, &c. And the names of the prisoners being in the gaol of the said 
 county, together with their attachments. 
 
 The names of the justices. 
 A. B., of, &c. 
 C. D., &c. 
 
 Names of the mayors. 
 R. J., mayor of, &c. 
 
 Names of the coroners. 
 C. D., of, &c. gent. 
 
 E. F., of, &c. gent. 
 
 Names of bailiffs of liberties. 
 CD., high bailiff of D. 
 
 Names of the constables of hundreds. 
 Hundred of H. C. D., of, &c. 
 
 Hundred of O. E. F., of, &c. 
 
 Names of the officers. 
 Hundred of H. J. K., of, &c. 
 
 Hundred of O. L. M., of, &c. 
 
 Names of prisoners in the gaol. 
 
 1. A. B., committed by , charged with . 
 
 A. B., esquire, sherifT. 
 
 Return of the Assize Venire, which Venire is under the Hand and Seals 
 of the Judges. 
 By virtue of this precept to me directed, I have caused to come before 
 the justices within named, and their fellows, justices within mentioned, 
 twenty-four as well knights as other good and lawful men of my baili- 
 wick, to do and receive all things which, on behalf of our lady the now 
 queen, shall be then and there enjoined them, as within I am com- 
 manded. The residue of the execution of this precept appears in a cer- 
 tain panel to the same annexed. 
 
 A. B., esquire, sheriff. 
 
 Return of a Hub. Corp. Jar., where a View ivas directed, and none of 
 
 the Jury appeared. 
 I humbly certify that, by virtue of this writ to me directed, I sum- 
 moned Sir C. D. &c., being the first twelve jurors within named, per-
 
 APPENDIX. 
 
 533 
 
 sonally to be and appear at the time and place within mentioned, and to chap.xvii. 
 do as the within writ commands and requires ; and I further certify, that sect. ii. 
 I attended at the time and pLice within mentioned, to cause the place in 
 question to be shown to six or more of the first named twelve jurors, but 
 the above named jurors or any one of them did not appear, so that I could 
 not further proceed on the said view of the place in question, as this writ 
 commands and requires. The residue of the execution of this writ appears 
 in a certain schedule hereunto annexed. 
 
 A. B. esquire, sheriff. 
 
 Return on a Distringas Juratores, where a View was directed, and none 
 of the Jurors appeared. 
 
 I humbly certify, that by virtue of this writ to me directed, I caused to 
 be distrained Sir C. D., &c. &c., being the first twelve jurors within 
 named, personally to be and appear, &c. {as in the last precedent). 
 
 Return of Distringas Juratores, tvhere a View is directed. 
 
 By virtue of this writ to me directed, I have caused the place in ques- 
 tion to be shown to (here name the jury that attend), in the panel here- 
 unto annexed named, at such time and in such manner and form as the 
 writ commands and requires. The residue of the execution of this writ 
 appears in the said panel hereunto annexed. 
 
 A. B. esquire, sheriff. 
 
 Where no View is directed. 
 
 The execution of this writ appears in a certain panel hereunto an- 
 nexed. 
 
 A. B. esquire, sheriff. 
 
 letter of Attorney to carry the Sentence of the Law into execution. 
 
 To all to whom these presents shall come, I, A. B., of , in the 
 
 county of N., esquire, sheriff of the said county, do by these presents ap- 
 point, depute, authorise, and empower G. H. of M., in the said county, 
 gentleman, for me, and in my stead and place, to execute the sentence 
 passed at the late assizes held for the said county, upon T. Y., and do 
 hereby delegate to the said G. H. all the power and authority of my 
 office, in anywise necessary or expedient in the premises, as fully and in 
 every respect as if I was personally present and did the same ; and I re- 
 quire and command all my officers and ministers to be aiding and assist- 
 ing the said G. H. in all things tending to the due execution of the said 
 sentence. In witness whereof I have hereunto set my hand and seal of 
 my office this day of——, a. d. 18 — . 
 
 (Sealed and delivered, &c.) {Seal of office.) 
 
 Sect. 3. 
 
 Warrant to summons a Sessions Jury. 
 
 [Copy jurors' names, places of abode, and descriptions.] 
 
 N. {to wit.) A. B, esquire, sheriff of the said county, to J. S., my 
 
 bailing greeting; You are hereby required to warn and summon the
 
 5S4) APPENDIX. 
 
 CHAP. XVII. several gentlemen above named personally to be and appear upon the 
 SECT. III. petit (or " grand"] jury, at the next general sessions of the peace to be 
 
 " holden in and for the county, at , on the day of next ; 
 
 then and there to inquire of and concerning such things as shall be given 
 them in charge, on pain of one hundred shillings. Given under the seal 
 
 of my office this day of . 
 
 (Seal of office.) By the sheriff. 
 
 Return to Sessions Precept. 
 The execution of this precept appears in certain schedules hereunto 
 annexed. 
 
 First Panel. 
 Calendar of the names of the coroners, &c. (the same as the calendar of 
 justices, 4"C., annexed as a panel to assize precept, ante, p. 532, omitting 
 the names of justices and mayors.) 
 
 A. B. esquire, sheriff. 
 
 Second Panel. 
 N. (to xvit.) The names of the grand jury to inquire for our lady the 
 queen for the body of the said county. 
 
 (Na7nes of persons.) (Swnmoning officers). 
 
 J. L. G. H. 
 
 Third Panel. 
 N. (to ivit.) The names of the jury to try the traverses and the pri- 
 soners at the bar. 
 
 A. B., of &c., carpenter > .£, ^ ■ „/j,- „ t r \ 
 C. D , of &c.; grocer _ \ iSummonmg officer, J. L.) 
 
 Each of the said jurors is attached by pledges. 
 John Doe 
 Richard Roe 
 
 John Doe ) A. B. esquire, sheriff. 
 
 CHAP. XVIII.— Sect. 2. 
 
 Form of Admission in Declaration in the County Court, iii order to 
 reduce Damages under 40s. 
 
 \^In the counts stating the sum due, at the end, each count concludes 
 thus :] out of which said sum of 201. the said plaintiff acknowledges to 
 have received of and from the said defendant the sum of 18/. 5s., and the 
 said defendant from the same doth freely here in court acquit and dis- 
 charge. 
 
 Warrant upon a Justicies. 
 
 N. (to wit.) A. B. esquire, sheriff of the county aforesaid, to I. K., 
 ray bailiff, greeting : By virtue of her majesty's writ of justicies, to 
 me directed and delivered, I command you that you summon E. F. per- 
 sonally to be and appear at my next county court, to be holden at A., on
 
 APPENDIX. 
 
 535 
 
 Thniday next, the day of instant, to answer C. D. in a plea of chap, xviii. 
 
 trespass on the case upon promises, to the damage of' the said C. D. of sect, ii. 
 
 £ (or " in a plea of debt"), as is alleged, and have you there this 
 
 precept. Given under the seal of my office. 
 
 (Seal of office.) _ By the sheriff. 
 
 Mr. , attorney for the plaintifE 
 
 Sianmons upon the above Warrant. 
 
 By virtue of her majesty's writ o{ justicies, to the sheriff of the county 
 of N. directed and delivered, and by virtue of the said sheriff's precept 
 to me directed, I do hereby summon you that you be and appear per- 
 sonally before the said sheriff, at his usual county court, to be holden at 
 
 A., on Thursday the day of instant, to answer C. D. in a plea 
 
 of trespass on the case upon promises, to the damage of the said C. D. 
 
 of £ , as is alleged. Dated this day of 18 — . 
 
 Mr. , attorney for the plaintiff. 
 
 To E. F., the defendant. 
 
 A County Court Execution. 
 
 N. {to wit.) A. B. esquire, sheriff of the county aforesaid, to J. S., 
 my bailiff, greeting : You are hereby commanded to levy on the goods 
 
 and chattels of C. D., within my said county, the sum of £ , which 
 
 E. F. in my county court recovered against the said C. D. for damages 
 which the said E. F. sustained by occasion of not performing certain 
 promises to the said E. F. by the said C. D., at A., in my county, whereof 
 he is convicted, and have you the said sum at my next county court to 
 be holden in and for my said county, to render to the said E. F. for da- 
 mages aforesaid. Dated the day of , in the year of our Lord 
 
 18—. 
 
 {Seal of office.) By the sheriff. 
 
 A Coiinti/ Court Suhpana. 
 
 N. {to toil.) A. B. esquire, sheriff of the county aforesaid, to J. S. 
 and E. K., greeting : I command you, and each of you (all excuses what- 
 soever being laid aside), that you and every of you be and personally appear 
 
 at my next county court, to be held at A., on Thursday, the day of 
 
 next, to testify the truth according to your knowledge, in a certain 
 
 action there depending between E. F., plaintiff, and C. D., defendant, in 
 a plea of trespass on the case upon promises, and this by no means you 
 omit, under the penalty of one hundred shillings. Given under the seal 
 of my office this day of , in the year of our Lord 18 — . 
 
 {Subpoena.) By the sheriff. 
 
 Return indorsed on the Re. Fa. Lo {I ). 
 
 By virtue of this writ to me directed, I have in my full county court of N., 
 held at A., in my said county, caused the plaint to be recorded, which is 
 
 {I) The return to a writ of accedas course with the terms of the writ, and 
 
 ad curiam, pone, or writ of false judg- annexing the proceedings in a schedule 
 
 ment, is made in the same manner as to the writ, 
 the return to a re. fa. lo., varying of
 
 536 APPENDIX. 
 
 cHAi". XVIII. in the same court Iictvvcon the parties witlnn written, whereof mention is 
 SECT. II. within made, whicli said plaint appears to a certain schedule to this writ 
 ■~~~~~~"~ annexed, and that nx'ord I have before the justices within written, at the 
 day and place within mentioned, under my seal, and under the seals of 
 J. B., E. L., T. S., and J. W., four lawful knights of the said county, of 
 those who were present at the said record ; and I have prefixed the same 
 day to the said parties, that then they may be there ready to proceed in 
 the said plaint as sliall be just, as is within commanded me. 
 
 A. B. esquire, sheriff. 
 
 Schedule annexed to the Re. Fa. Lo., written on a square piece of 
 unstamped Parchment, 
 
 N. {to wit.) At my full county court for N. (if it was a county court 
 of late sheriff, say " at the county court of A. B. esquire, late sheriff of the 
 
 county"), held at A., in the said county, on the day of , in the 
 
 year of the reign of queen Victoria, before T. B., E. L., T. S., and 
 
 J. W., four suitors of the said court, amongst other things it is contained 
 thus : 
 
 N. {to xvit.) J. P. complains of G. H., in a plea of taking and unjustly 
 detaining his goods and chattels, to his damage of thirty-nine shillings 
 and eleven pence, and so forth, and there are pledges of prosecution, and 
 also of having a return of the said goods and chattels, if a return thereof 
 shall be adjudged. 
 
 Pledges of prosecution \ SaJd^Roe. 
 In witness whereof the said T. B., E. L., T. S., and J. W., four lawful 
 knights of those that were present at that record, have in full court seve- 
 rally put their seals the day and year above said. 
 
 {Seal of office.) A. B. esquire, sheriff. 
 
 T. B. (L. S.) E. L., &c. 
 
 Transfer of County Court Plaint, to he inserted at the bottom of the 
 List made out by the late Sheriff. 
 
 I, A. B., esquire, late sheriff of the county of N., do hereby assign 
 and transfer over unto C. D., esquire, present sheriff of the said county, 
 the actions or plaints above mentioned, as witness my hand and the seal 
 
 of my late office this day of , 18 — . 
 
 A. B. esquire, late sheriff. {Seal.) 
 
 Sect. 3. 
 
 Warra7it in Replevin. 
 
 N. (to wit.) A. B., esquire, sheriff of the county aforesaid, G. C. and 
 J. S. my bailiffs, and to each of them, jointly and severally, greeting : 
 because J. P. hath found me sufficient security, as well for prosecuting 
 his suit with effect against C. D. and E. F , for taking his goods and 
 chattels, to wit (specifying the goods), and also for making a return 
 thereof, if return thereof shall be adjudged : Therefore, on behalf of the 
 said J. P., by virtue of my office, I command you and every of you, 
 jointly and severally, without delay, to replevy and deliver to the said 
 J. P. his said goods and chattels, &c., which C. D., esquire, and E. F., 
 took and unjustly detained, as is alleged ; and also that you summon the
 
 APPENDIX. 537 
 
 aforesaid C. D. and E. F., that they be at my next county court to be chap, xviii. 
 held at A., in and for the said county ; and in what manner you shall sect, in. 
 have executed this precept, certif)' to me at my next said county court, 
 to be held at the time and place aforesaid : fail not at you peril. Given 
 
 under my seal of office this day of , 18 — . 
 
 {Seal of office.) By the sheriff. 
 
 Summons thereon. 
 
 N. {to wit.) By virtue of a warrant from the sheriff of the county of 
 N. to me directed, we summon you to appear at the next county court, 
 to be holden at A., in and for the county aforesaid, to answer J. P. in 
 a plea of taking and unjustly detaining his cattle, goods and chattels. 
 Dated the day of , 18 — . 
 
 To C. D. esquire. J;- C- | bailiffs. 
 
 Form of Replevin Bond, 
 
 Know all men by these presents, that we, J. P. of N., in the county of 
 N., farmer, and C. B. of H., in the same county, gentleman, and J. H. 
 of D , in the same county, yeoman, are held and firmly bound to A. B., 
 
 esquire, sheriff of the county of N. aforesaid, in the sum of £ of good 
 
 and lawful money of Great Britain, to be paid to the said sheriff, or his 
 certain attorney, executors, administrators, or assigns, for which payment 
 well and truly to be made we bind ourselves, and each of us, our and 
 each of our heirs, executors, and administrators, jointly and severally, 
 
 firmly, by these presents, sealed with our seals, dated this day of 
 
 , in the year of the reign of our sovereign lady queen Victoria, 
 
 and so forth, and in the year of our Lord 18 — . 
 
 The condition of the above written obligation is such, that, whereas 
 the above named sheriff, by virtue of his office, and upon the complaint 
 of the above bounden J. P., hath delivered and replevied to the said J. P. 
 the cattle, goods and chattels following, {to ivit) : two red steer, one 
 branded steer, {setting out the whole of the articles, according to the in- 
 
 v^ntorii), which C. D. of , in the same county, esquire, and E. F. of 
 
 in the same county, yeoman, took and wrongfully withheld, as he 
 
 the said J. P. alleges; if, therefore, the said J. P. do appear at the next 
 county court to be holden at A., in the said county, and then and there 
 do prosecute his suit with effect against the said C. D. and E. F., for the 
 taking and withholding of the said cattle, goods and chattels, and do 
 make return thereof, if return thereof shall be adjudged by law ; and the 
 said sheriff, his heirs, executors, administrators, and assigns, shall acquit, 
 discharge, and save harmless, against our sovereign lady the queen, and the 
 said CD. and E. F., of, from, and against all and every thing and things 
 concerning the pi-emises : Then this obfigation to be void, or otherwise 
 to be and remain in full foixe and virtue. 
 
 Sealed, &c. in the presence of, &c. J. P. {Seal.) 
 
 C. B. {Seal.) 
 J. K. {Seal.) 
 
 Assignment of Replevin Bond, to be indorsed on the Bond. 
 Know all men by these presents, that I, A. B., esquire, sheriff of the 
 county of N., have, at the request of the above named C. D., esquire, the
 
 538 APPENDIX. 
 
 CHAP. XVIII. avowant, (or " the person making cognizance") assigned over unto liim, 
 
 SECT. III. the said C. D., the replevin bond, pursuant to the statute in that case 
 
 made and provided. In witness whereof I have hereunto set my hand 
 
 and seal of office this day of , 18 — . 
 
 (Seal of office.) A. B. esquire, sheriff. 
 
 Sealed in the presence of ) 
 (two witnesses). i 
 
 Precept in the nature of Withernam. 
 
 N. (to wit.) A. B., esquire, high sheriff of the said county, to all and 
 singular my bailiffs of the said county, greeting : Forasmuch as J. P. hath 
 found me sufficient security, as well to prosecute his plaint against C. D., 
 for taking and unjustly detaining his cattle, goods, and chattels, to tcit, 
 &c. (setting out the cattle and goods), as to make return thereof, if return 
 thereof shall be adjudged; and thereupon, by virtue of my office, I have 
 often commanded you and every of you, that you or some or one of you, 
 should cause to be replevied to the said J. P. his aforesaid cattle, goods 
 and chattels, which the said C. D. hath taken and unjustly detains, as it 
 is said. And you, upon my several precepts of replevin, to you directed 
 as aforesaid, have returned to me that the aforesaid cattle, goods, and 
 chattels, are eloigned to places to you unknown, so that you cannot replevy 
 the same to the said J. P. : therefore I now command you, and every one 
 of you, that you or some or one of you, do take in withernam the cattle, 
 goods and chattels of the said C. D., to the value of the said cattle, goods 
 and chattels, so eloigned as aforesaid, and deliver the same to the said 
 J. P. for his cattle, goods and chattels last aforesaid ; and also that you 
 put by gages and safe pledges the said C. D., so that he be and appear at 
 
 my next county court, to be holden at , in and for the said county, 
 
 on the day of next, to answer to the said J. P. of the plea 
 
 aforesaid ; and that you, or one of you, return an answer to this my 
 mandate, at my next county court. Given under the seal of my office 
 this day of , 18—. 
 
 (Seal of office.) By the sheriff. 
 
 Warrant on the Writ de Retorno Habendo. 
 
 N. (to wit.) A. B., esquire, sheriff of the said county, to J. S., my 
 bailiff; greeting : By virtue of her majesty's writ de retorno habendo, to 
 me directed and delivered, stating that J. M., lately in her majesty's 
 court, before her majesty's justices at Westminster, was summoned to 
 answer T. J. in a plea why he took the goods and chattels of him the said 
 T., to tvit, nine stacks, &c., and unjustly detained the same against sureties 
 and pledges, as it is said ; and the same T., in her majesty's same court, 
 before her majesty's justices at Westminster, made default, wherefore it 
 was considered in her majesty's same court, before her majesty's justices, 
 that he and his pledges to prosecute should be in mercy; and that the 
 said J. should go thei'eof without day, and that he should have a return 
 of the goods and chattels aforesaid. Therefore I command you, as by 
 the said writ I am commanded, that without delay you cause the goods 
 and chattels aforesaid to be returned to the aforesaid J., and do not de- 
 liver them on the complaint of the said T., without her majesty's writ, 
 which shall make express mention of the judgment aforesaid ; and in 
 what manner you shall execute this precept render me an account, so
 
 APPENDIX. 
 
 539 
 
 that I may make the same appear to her said majesty's justices at West- chap.xvui. 
 minster, on the morrow of the Holy Trinity; and have you this, and so sect, hi. 
 
 forth. Given under the seal of my office the day of , 18—. 
 
 (Seal of office.) By the sheriff. 
 
 Return of Bona et Catalla Elnngata fuerunt, on the Writ de Retorno 
 
 Habendo. 
 I humbly certify the within justices, that, before the coming of this writ 
 to me directed, the goods and chattels within mentioned were conveyed 
 away by the within named T. J. to places to me unknown ; wherefore 
 the said goods and chattels to the within named J. M. I cannot cause to 
 be returned, as I am within commanded. 
 
 The answer of A. B. esquire, sheriff. 
 
 Return to the foregoing Writ de Retorno Habendo, where the whole 
 
 of I he Goods are returned. 
 I humbly certify the within justices, that I have caused the goods and 
 chattels within mentioned to be returned to the within J. M., as 1 am com- 
 manded. 
 
 The answer of A. B. esquire, sheriff. 
 
 Return to the foregoing Writ de Retorno Habendo, where part of the 
 Goods were returned and part eloigned. 
 
 I humbly certify the within justices, that 1 have caused one stack of 
 oats, &c., part of the goods and chattels within mentioned, to be returned 
 to the within named J. M., as I am within commanded; and I also 
 humbly certify the said justices, that, before the coming of this writ to me 
 directed, the rest of the goods and chattels within mentioned were con- 
 veyed away by the within named T. J. to places to me unknown, where- 
 fore I cannot cause the same to be returned to the said J. M., as I am 
 within commanded. 
 
 A. B. esquire, sheriff. 
 
 Warrant on the Writ of Second Deliverance. 
 
 N. {to ivit.) A. B., esquire, sheriff of the said county, to J. S., my 
 bailiff, greeting: By virtue of her majesty's writ of second deliverance, to 
 me directed and delivered, I connnand you, as by the said writ I am 
 commanded, that without delay you cause nine stacks, &c., which J. M., 
 lately in her majesty's court, before her majesty's justices at Westminster, 
 were adjudged, by the default of T. J., to be delivered to the said J. M., 
 and that you put by sureties and safe pledges the said J. M., that he be be- 
 fore her majesty's justices at Westminster, on the morrow of All Souls, to 
 answer to the said J. T. of the takitig and unjustly detaining the goods 
 and chattels aforesaid ; and have you this, and the names of the pledges, 
 
 and so forth. Given under the seal of my office this day of , 
 
 18—. 
 
 {Seal of office.) By the sheriff.
 
 540 APPENDIX. 
 
 CHAP. XVIII. Return of the Writ of Second Deliverance, tvlicrc the Goods arc delivered. 
 
 _ ^^'J^IL By virtue of this writ to me dii-ected, I liave caused to be delivered to 
 the withiu-named T. J. the goods and cliattels within mentioned, as I am 
 within commanded to do. The pledges arc John Doe and liichard Roe. 
 
 The answer of A. B., esquire, sheriff. 
 
 Return, when part only of the Goods could be delivered. 
 
 By virtue of this writ to me directed, I have caused to be delivered to 
 the within-named T. J. part of one rick of hay, part of the goods and 
 chattels within mentioned, being all of the said goods and chattels which 
 are to bo found in my bailiwick. The pledges are John Doe and Richard 
 Roe. The answer of A. B., esquire, sheriff. 
 
 Bo7id to be taken before issuing Warrant on a Writ of Second Deliverance. 
 
 Know all men by these presents, that we, T. J., of , in the county 
 
 of N., and , are held and firmly bound to A. B., esquire, sheriff of 
 
 the county of N. aforesaid, in the sum of £ , of lawful money of 
 
 Great Britain, to be paid to the said sheriff, or his certain attorney, exe- 
 cutors, administrators, and assigns, for which payment, to be well and 
 truly made, we bind ourselves, and each of us, and each and every of our 
 heirs, executors, and administrators, jointly and severally, firmly by these 
 
 presents. Sealed with our seals. Dated this day of , in the 
 
 year of the reign of our sovereign lady Queen Victoria, and in the 
 
 year of our Lord 1 8 — . 
 
 The Condition of the above Bond, ivhen part only of the Goods could be 
 delivered. 
 
 The condition of the above-written obligation is such, that whereas the 
 above-named sheriff, by virtue of her majesty's writ de retorno habendo, 
 did cause one stack of oats, &c., and part of nine stacks, &c. in the said 
 writ mentioned, to be returned to J. M., in the said writ named; the rest 
 of the said goods and chattels being, before the coming of the said writ 
 to the said sheriff, conveyed away by the above-bounden T. J. to places 
 to the said sheriff unknown, wherefore he could not cause the same to be 
 returned to the said J. M., as by the said writ he was commanded : and 
 whereas the above-named sheriff, by virtue of her majesty's writ of second 
 deliverance, hath delivered to the above-bounden T. J. the said one stack, 
 &c. : if, therefore, the above-bounden T. J. shall prosecute his complaint 
 according to the tenor of second deliverance, and shall make return of the 
 said nine stacks, &c., if a return thereof shall be adjudged, and the said 
 sheriff, his heirs, executors, and administrators, shall acquit, &c. &c., as 
 ante, 537. ( The same where all the goods are delivered.) 
 
 Return to a Writ of Inquiry under the stat. Car. II. c. 17, sect. 2 (??<). 
 
 The condition of the above-written obligation is such, that whereas the 
 
 above-named sheriff, by virtue of her majesty's writ of second deliverance 
 
 to him directed and delivered, hath delivered to the above-bounden T._ J. 
 
 the goods and chattels following ; to wit, nine stacks of oats, &.C., which 
 
 (m) Fifteen days' aolice should be given of executing a writ of inquiry.
 
 APPENDIX. 
 
 541 
 
 to J. M., lately in hev majesty's court, before her majesty's justices at chap, xviii. 
 Westminster, were adjudged by the default of the said T. J. If, there- sect, hi. 
 fore, the above-bounden T. J . shall prosecute his complaint according to 
 the tenor of the said writ, and shall make return of the said goods and 
 chattels, if a return thereof shall be adjudged, and the said sheriff, his 
 heirs, executors, and administrators, shall acquit, indemnify, and save 
 harmless, against our sovereign lady the queen, and also against the said 
 J. M., of, from and against all and every thing and things concerning the 
 premises, then the above written obligation to be void, otherwise to remain 
 in ftill force and virtue. (Seal.) 
 
 Sealed and delivered, &c. (Seal.) 
 
 {Seal.) 
 The execution of this writ appears in the inquisition hereunto annexed. 
 
 Itiquisition. 
 
 N. {to wit.) An inquisition indented, taken at the house of , 
 
 called or known by the name or sign of , in the said county of , 
 
 on the day of , in the year of the reign, &c., before A. B., 
 
 esquire, sheriff of the county aforesaid, by virtue of a writ of our said lady 
 the queen, to the said sheriff directed, and to this inquisition annexed, to 
 inquire of certain matters in the said writ specified by the oath of (the 
 names of the jurors), honest and lawful men of the said county, who upon 
 
 their oath say, that the sum of £ , of the yearly rent in the said writ 
 
 mentioned, was in arrear and unpaid from the said J. P. to the said C. D. 
 at the time of the taking and distraining the cattle, goods, and chattels in 
 the said writ also mentioned ; and that the cattle, goods and chattels were 
 
 then worth, according to their true value, the sum of . In witness 
 
 whereof as well I the said sheriff, as the said jurors, have set our seals to 
 this inquisition the day and year and place above mentioned. 
 
 CHAP. XIX.— Sect. 1. 
 
 N. {to loit.) A. B., esquire, sheriff of the said county, to the mayor Precept to 
 of the borough of S., in the said county, greeting : Know, that I have offiJJr"of"a"^ 
 received a certain writ of our lady the queen, to me dii-ected, the tenor borough, on 
 whereof followeth (//ere copij the writ verbatim) : therefore, by virtue of a general 
 the said writ, I require that you forthwith cause two burgesses to be elected 
 for the said borough, according to the command of the said writ ; and 
 how this my warrant shall be executed you shall make known to me im- 
 mediately after the said election made, so that I may certify the same, 
 together with the said writ and this precept, to our lady the queen, in her 
 chancery, forthwith. Hereof fail not. Given under the seal of my office. 
 
 Dated the day of , 18 — . 
 
 A. B., sheriff. 
 
 {To be indorsed when received.) 
 
 Received this day of , 18 — , from the sheriff of N., by the 
 
 hands of Mr. O. D., at twelve o'clock at noon, 
 
 CD. 
 ( To be indorsed when returned.) 
 
 The execution of this precept appears in the schedule hereunto an- 
 nexed. C. D., mayor.
 
 542 
 
 APPENDIX. 
 
 CHAP. XIX. 
 SECT. I, 
 
 Nolice of the 
 election. 
 
 Borough of S., , 18 — . 
 
 In pursuance of a precept received from the sheriff' of tlic county of N. 
 for electing two burgesses to serve in the ensuing parliament for this 
 borough, I do hereby give notice, that I shall proceed to election accord- 
 ingly, on Thursday, the day of instant, at nine of the clock in 
 
 the forenoon, in the town-hall of the same borough; when and where all 
 persons concerned are to give their attendance. 
 
 A. B., mayor (or baihff"). 
 
 Bribery oath. 
 (2 Geo. 2, 
 c. 24; 
 43 Geo. 3, 
 c. 74.) 
 
 Declaration 
 of qualifica- 
 tion by can- 
 didate. (2Vict. 
 c. 48, 8. 3). 
 
 Certificate of 
 declaration. 
 (Id. 8. 4.) 
 
 Sect. 2. 
 I, A. B., do swear, that I have not directly or indirectly received any 
 sum or sums of money, office, place, or employment, gratuity, or reward, 
 or any bond, bill, or note, or any promise or gratuity whatsoever, either 
 by myself or any other person to my use or benefit or advantage, for 
 making my return at the present election of members to serve in parlia- 
 ment, and that I will return such person or persons as shall to the best 
 of my judgment appear to have the majority of legal votes. 
 
 I, A. B., do solemnly and sincerely declare, that I am, to the best of 
 my knowledge and belief, duly qualified to be elected as a member of the 
 House of Commons, according to the true intent and meaning of the act 
 passed in the second year of the reign of Queen Victoria, intituled " An 
 Act to amend the Laws relating to the Qualification of Members to serve 
 in Parliament," and that my qualification to be so elected doth arise out 
 of (/lere let the party state the nature of his qualification, as the case may he ; 
 if the same ariseth out of lands, tenements or hereditaments, let him state 
 the barony or baronies, parish or parishes, township or townships, precinct 
 or precincts, and also county or counties, in which such lands, tenements 
 or hereditaments are situate, and also the estate in the said lands, tene- 
 ments or hereditaments, or in the rents or profits thereof, of or to which he 
 is seised or entitled; or if the same ariseth out of personal estate or effects, 
 let him state of what nature and where situate such personal estate or effects 
 are, and what interest he hath in such personal estate or effects, and upon 
 what securities and in whose names the same are vested) as hereunder 
 set forth. 
 
 I do hereby certify, that C. D., one of the candidates for the Eastern 
 Division of the county of C, being first duly requested in writing in that 
 behalf, such request being made and signed by A. B., one of the candi- 
 dates at the said election (or " by C. and D , being two registered electors 
 having respectively a right to vote at the said election "), did on the 
 
 (Jay of , 18—, before me, duly authorized in that behalf, make 
 
 and subscribe a declaration, that he to the best of his knowledge and 
 beHef was duly qualified to be elected as a member of the House of 
 Commons, according to the true intent and meaning of the act passed in 
 the second year of the reign of Queen Victoria, intituled "An Act to 
 amend the Laws relating to the Qualification of Members to serve in Par- 
 liament." Sir G. M., hart., high sheriff. 
 
 Questions to !• ^^^ yo" the same person whose name appears as A. B. on the 
 be put to register of voters now in force for the county of (or " for the
 
 APPENDIX. 
 
 543 
 
 riding, parts or division of the county of ," or " for the city" or chap. xix. 
 
 " borough of ," as the case mmi be) ? sect, n. 
 
 2. Have you already voted either here or elsewhere at this election ^^^^^ ^^^ 
 
 for the county of \or " for the riding, parts or division of the vict. c. i8, 
 
 county of ," or "for the city" or " borough of ," as the case s. 8i.) 
 
 7na^ be) 1 
 
 This indenture {n), made in the full county of N., holden at A., in and Return for a 
 
 for the said county, on Wednesday, the day of , in the 
 
 year of the reigii of our sovereign lady Victoria, by the grace of God of 
 the united kingdom of Great Britain and Ireland queen, defender of the 
 faitli, and so forth, and in the year of our Lord 18—, between A. B., 
 esquire, sheriff of the said county, of the one pait, and C. D., E. F., &c., 
 and many other persons of the county aforesaid, and electors of knights 
 to parliament for the said county, of the other part ; witnesseth, that pro- 
 clamation being made by the said sheriff, by virtue of and according to a 
 writ of our sovereign lady the queen, directed to the said sheriff and here- 
 unto annexed, for the electing of two knights, of the most fit and discreet 
 of the said county, girt with swords, to serve in a certain parliament to be 
 holden at the city of Westminster, on the day of next ensu- 
 ing : the said parties to these presents, together with the major part of 
 the electors for the county aforesaid, present in the full county of N., at 
 A. aforesaid, on the day of the date hereof, by virtue of the said writ, and 
 according to the force and effect of divers statutes in that case made and 
 provided, have, in the said full county of N., by unanimous assent and 
 consent, freely and indifferently elected and chosen two knights, of the 
 most fit and discreet of the said county, girt with swords, to wit. Sir G. S., 
 baronet, and H. D., of, &c., esquire, to be knights to the said parliament 
 so to be holden at the day and place in that behalf hereinbefore men- 
 tioned, for the commonalty of the county of N. ; giving and granting 
 to the aforesaid knights full and sufficient power, for themselves and the 
 commonalty of the same county, to do and consent to those things which, 
 in the said parliament, by the common council of the kingdom of our 
 said lady the queen (by the blessing of God), shall happen to be ordained 
 upon the affairs in the said writ specified. In witness whereof the parties 
 to these presents have interchangeably put their hands and seals, the day, 
 year and place first above written. 
 
 I, A. B., do sincerely promise and swear, that I will be faithful and Oath of alle- 
 bear true allegiance to her majesty Queen Victoria. glance. 
 
 So help me God. 
 
 I, G. M., do swear that I do from my heart abhor, detest and abjure. Oath of sb- 
 as impious and heretical, that damnable doctrine and position, that princes premacy. 
 excommunicated or deprived by the Pope, or any authority from the see 
 of Rome, may be deprived or murdered by their subjects or any other 
 whatsoever : And I do declare that no foreign prince, person, prelate, 
 state or potentate hath or ought to have any jurisdiction, power, supe- 
 riority, pre-eminence, or authority, ecclesiastical or spiritual, within this 
 realn\. So help me God. 
 
 I (n) To be engrossed on the usual stamp for deeds.
 
 544 APPENDIX. 
 
 CHAP. XIX. I, A. B., do truly and sincerely acknowledge, profess, testify and de- 
 SECT. II. clarc in my conscience, before God and tlie world, that our sovereign 
 ~ lady Queen Victoria is lawful and rightful queen of tliis realm, and all 
 ra?i'<in"(« g"* o'l"-'!" ''cr majesty's dominions thereunto belonging : And I do solemnly 
 3, c. 53.) and sincerely declare, that I do believe in my conscience, that not any of 
 
 the descendants of the person who pretended to be Prince of Wales 
 during the life of the late King James the Second, and since his decease 
 pretended to be and took upon himself the style and title of King of Eng- 
 land, by the name of James the Third, or of Scotland by tlic name of 
 James the Eighth, or the style and title of King of Great Britain, hath 
 any right or title whatsoever to the crown of this realm, or any other the 
 domiwions thereunto belonging : and I do renounce, refuse and abjure 
 any allegiance or obedience to any of them. And I do swear, that I will 
 bear faith and true allegiance to her majesty Queen Victoria, and her will 
 defend to the utmost of my power against all traitorous conspiracies and 
 attempts whatsoever which shall be made against her person, crown or 
 dignity. And I will do my utmost endeavour to disclose and make 
 known to her majesty and her successors, all treasons and traitorous con- 
 spiracies which I shall know to be against her or any of them. And I do 
 faithfully promise, to the utmost of my power, to support, maintain, and 
 defend the succession of the crown against the descendants of the said 
 James, and against all other persons whatsoever ; which succession, by 
 an act, intituled " An Act for the further Limitation of the Crown, and 
 better securing the Rights and Liberties of the Subjects," is and stands 
 limited to the Princess Sophia, Electorcss and Duchess dowager of Han- 
 over, and the heirs of her body, being Protestants. And all these things 
 I do plainly and sincerely acknowledge and swear, according to these ex- 
 press words by me spoken, and according to the plain and common sense 
 and understanding of the same words, without any equivocation, mental 
 evasion or secret reservation whatsoever. And I do make this recog- 
 nition, acknowledgment, abjuration, renunciation and promise, heartily, 
 willingly, and truly, upon the true faith of a Christian. 
 
 So help me God. 
 
 Declaration ('') I> A.. B., do most solemnly, sincerely and truly acknowledge, pro- 
 
 or affirmation fess, testify and declare, that Queen Victoria is lawful and rightful queen 
 IT "ouaker^s "^ realm, and of all other her dominions and countries thereunto be- 
 iustead of the longing ; and I do solemnly and sincerely declare, that I do believe that 
 oath of abju- not any of the descendants of the person who pretended to be Prince of 
 ration. Wales during the life of the late King James the Second, and since his 
 
 decease pretended to be and took upon himself the style and title of King 
 of England, by the name of James the Third, or of Scotland by the name 
 of James the Eighth, or the style and title of King of Great Britain, hath 
 any right or title whatsoever to the crown of this realm, or any other the 
 dominions thereunto belonging ; and I do renounce and refuse any alle- 
 giance or obedience to any of them. And I do solemnly promise, that I 
 will be true and faithful and bear true allegiance to Queen Victoria, and 
 to her will be faithful against all treacherous conspiracies and attempts 
 
 (o) By the 8 Geo. 1 , c. 6, Quakers Geo. 3, c. 53, on the death of the Pre- 
 
 were allowed to take the effect of the tender, no provision was made for al- 
 
 abjuvation oath, according to the form tering the Quaker's affirmation or de- 
 
 therein prescribed ; but when the oath claration conformable thereto. The 
 
 of abjuration was altered by the 6 form, however, will be as here given.
 
 APPENDIX. 54>5 
 
 whatsoever which shall be made against her person, crown or dignity, chap. xix. 
 And I will do my best endeavour to disclose and make known to Queen sfct. t. 
 Victoria and her successors all treasons and traitorous conspiracies which 
 I shall know to be against her or any of them. And I will be true and 
 faithful to the succession of the crown against the descendants of the said 
 James, and against all other persons whatsoever, as the same is and 
 stands settled by an act, intituled " An Act declaring the Rights and Li- 
 berties of the Subject, and settling the Succession of the Crown to the 
 late Queen Anne, and the heirs of her body, being Protestants;" and as 
 the same, by one other act, intituled " An Act for the further Limitation 
 of the Crown, and better securing the Rights and Liberties of the Sub- 
 ject," is and stands settled and entailed, after the decease of the said late 
 Queen, and for default of issue of the said late Queen, to the late Princess 
 Sophia, Electoress and Duchess Dowager of Hanover, and the heirs of 
 her body, being Protestants. And all these things I do plainly and sin- 
 cerely acknowledge, promise and declare, according to these express 
 words by me spoken, and according to the plain and common sense and 
 understanding of the same words, without any equivocation, mental eva- 
 sion or secret reservation whatsoever. And I do make this recognition, 
 acknowledgment, renunciation, and promise, heartily, willingly and truly. 
 
 I, G. M., do sincerely promise and swear that I will be faithful and Roman 
 bear true allegiance to her majesty Queen Victoria, and will defend her Caiiioiic's 
 to the utmost of my power against all conspiracies and attempts whatever /iq Qg(,_ 4^ 
 which shall be made against her person, crown or dignity; and I will do c. 7.) 
 my utmost endeavour to declare and make known to her majesty, her 
 heirs and successors, all treasons and traitorous conspiracies which may 
 be formed against her or them : And I do faithfully promise to maintain, 
 support, and defend, to the utmost of my power, the succession of the 
 crown, which succession, by an act intituled " An Act for the further Li- 
 mitation of the Crown and better securing the Rights and Liberties of the 
 Subject," is and stands limited to the Princess Sophia, Electress of Han- 
 over, and the heirs of her body, being Protestants ; hereby utterly re- 
 nouncing and abjuring any obedience or allegiance unto any other person 
 claiming or pretending a right to the crown of this realm : And I do further 
 declare that it is not an article of my faith, and that I do renounce, reject 
 and abjure the opinion, that princes excommunicated or deprived by the 
 Pope or any other authority of the see of Rome may be deposed or mur- 
 dered by their subjects, or any person whatsoever : And I do declare that 
 I do not believe that the Pope of Rome or any other foreign prince, pre- 
 late, person, state, or potentate, hath or ought to have any temporal or 
 civil jurisdiction, power, superiority, or pre-eminence, directly or indi- 
 rectly, within this realm. I do swear that I will defend, to the utmost of 
 my power, the settlement of property within this realm, as established by 
 the laws : And I do hereby disclaim, disavow, and solemnly abjure any 
 intention to subvert the present Church Establishment, as settled by law 
 within this realm : And I do solemnly swear that I never will exercise 
 any privilege to which I am or may become entitled, to disturb or weaken 
 the Protestant religion or Protestant government in the united kingdom : 
 And I do solemnly, in the presence of God, profess, testify and declare, 
 that I do make this declaration, and every part thereof, in the plain and 
 ordinary sense of the words of this oath, without any evasion, equivoca- 
 tion or mental reservation whatsoever. So help me God. 
 
 N N
 
 / 
 
 54)6 APPENDIX. 
 
 '^"^P-xx. CHAP, XX. 
 
 Notice of (he time fur electing a Coroner. 
 Tlie slicrifTof N. will proceed to the election of a coroner for the said 
 county, in the room of E. F., esquire, deceased, at the county court, to 
 
 be held at by adjourtniient, on Wednesday the day of 
 
 next, at ten o'clock in the forenoon of the same day, at which time and 
 place the freeholders of the said county are desired to attend. 
 
 A. B. esquire, sheriff'. 
 
 Return to a Writ De Coronatore eligendo. 
 
 By virtue of this writ to me directed, in my full county court, held (by 
 
 adjournment; at A., in the county of N., on the day in the 
 
 year within written, by the assent of the same county, 1 have caused E. H., 
 esquire, to be chosen coroner in the place of the within named E. F., 
 deceased, which said E. H., as the manner is, hath taken his corporal 
 oath to do and keep those things which to the office of coroner in the 
 said county doth belong, as I am within commanded. 
 
 The answer of A. B. esquire, sheriff. 
 
 CHAP. XXI. 
 
 Warrant on an Exchequer Attachment. 
 
 N. (to wit.) A. B., esquire, sheriff' of the said county, to J. S., my 
 bailiff) greeting : By virtue of her majesty's writ to me directed and de- 
 livered, I command you that you omit not by reason of any liberty in my 
 county, but that you enter the same, and attach C. D., if he shall be found 
 in my bailiwick, and him safely keep, so that I may have his body before 
 
 the barons of her majesty's exchequer at Westminster, on , to answer 
 
 her majesty concerning divers trespasses, contempts, and offences by him 
 lately done and committed. And have you this, and so forth. Given 
 imder the seal of my office this day of , 18 — . 
 
 (Seal of office.) By the sheriff". 
 
 (Indorsed.) 
 
 Mr. I. K., solicitor for the plaintiff", at the suit of 
 T. P. in the office of pleas : the writ issued on the 
 day of , 18—. 
 
 N. B. — Take no bail-bond whatever, unless the plaintiff or his solicitor 
 desires you to do so, and approves of the sureties, under his hand. 
 
 Warrant upon an Attachment out of Chancery, with Proclamations. 
 
 N. (to wit.) A. B., esquire, sheriff' of the said county, to , keeper 
 
 of the gaol of the said county, and also to E F., my bailiff", greeting: By virtue 
 of her majesty's writ to me directed and delivered, I command you do, in 
 her majesty's behalf, make public pi'oclamation in the town of H., within 
 my bailiwick, that A. M., otherwise S., do, upon his allegiance, within 
 eight days of St. Hilary next ensuing, personally appear before her ma- 
 jesty, in her majesty's Court of Chancery, wheresoever it shall then be, 
 and, nevertheless, in the meantime, if you can find the said A. M., other- 
 wise S., attach him so that 1 may have him before her majesty, in her 
 majesty's said court, at the time before mentioned, there to answer to her 
 majesty, as well touching a contempt which he, as it is alleged, com-
 
 APPENDIX. 
 
 547 
 
 mitted against her majesty, as touching those things which shall be then chap, xxi. 
 and there laid to his charge, and to perform and abide such order as her 
 majesty's said court shall make in this behalf; and hereof fail not ; and 
 
 have you this, and so forth. Given under the seal of my office this 
 
 day of , 18—. 
 
 (Seal of office.) By the sheriff. _ 
 
 For not answering at the suit of R. S., esquire, plaintiff. The writ is 
 tested the day of , 18—. T. Clerk. 
 
 Return of Nan est Inventus, on an an Attachment out of Chancery. 
 I humbly certify our sovereign lady the queen within written, that the 
 within named C. D. is not found in my bailiwick. 
 
 A. B. esquire, sheriff". 
 
 If two Defendants. 
 That the within named C. D. and G. H. are not, nor is either (ftnore 
 than two, for " either,") say " any" of them found in my bailiwick. 
 
 Non est Inventus as to one Defendant, and Cepi Corpus as to another. 
 
 That the within named C. D. is not found in my bailiwick; and I 
 further certify that the within named C. D. hath been attached, and his 
 body is now in my custody. 
 
 Return to an Attachment for non-appearance out of Chancery, tvhere 
 the Defendant is in Gaol at other Suits. 
 
 By virtue of this writ to me directed, I humbly certify to our lady the 
 queen within written, that I have taken the body of the within named C. D., 
 and him in the prison of our sovereign lady the queen I have safe in my 
 custody ; but because he is charged with divers other actions, I cannot 
 have his body ready before our said lady the queen, at the day and place 
 within contained, without a writ o{ habeas corpus cum causa to me in that 
 behalf to be directed. 
 
 A. B. esquire, sheriff. 
 
 Return of an Attachment out of Chancery, with Proclamations, 
 Non est Inventus. 
 
 By virtue of this writ to me directed, F humbly certify to our lady the 
 queen within written, that I have caused proclamation to be made in all 
 and singular the places in the said writ contained, according to the form 
 and effect of the said writ, as it is therein to me commanded ; and I do 
 further humbly certify to our said lady the queen, that the within C. D. is 
 not found in my bailiwick. 
 
 A. B. esquire, sheriff. 
 
 Writ of Ne Exeat Regno. 
 
 Victoria, Src. To the sheriff of N., greeting: Whereas it is represented 
 unto us, in our Court of Chancery, on the part of R. R., complainant, 
 against C. D., defendant, amongst other things, that he the said defend- 
 ant is greatly indebted to the said complainant, and designs quickly to go 
 
 N N 2
 
 / 
 
 51-8 Al'PENDIX. 
 
 CHAP. XXI. into parts beyond the seas, as by oath made in that behalf appears, which 
 tends to the great prejudice and damage of the said complainant. There- 
 fore, in order to prevent this injustice, we do hereby command you that 
 yon do, without delay, cause the said C. D. personally to come before you, 
 and give sulKcient bail or security in the sum of 300/., that he the said 
 C. D. will not go or attempt to go into parts beyond seas, without leave 
 of our said court. And in case the said C. D. shall refuse to give such 
 bail or security, then you are to commit him the said C. U. to our next 
 prison, there to be kept in safe custody until he shall do it of his own 
 accord; and when you have taken such securit}', you are forthwith to 
 make and return a certificate thereof to us in our said Court of Chancery, 
 distinctly and plainly, under your seal, together with this writ. Witness 
 ourself at Westminster, the day , in the year of our reign. 
 
 Wan^mt thereon. 
 
 N. {lo wit.) A. B., esquire, sheriff of tlie county aforesaid, to the 
 keeper of the gaol of the said county, and also to J. L., my baillfT, greeting : 
 By virtue of her majesty's writ to me directed and delivered, I command 
 you, jointly and severally, that you or either of you forthwith arrest the 
 body of C. D., and him safely keep until he finds sufficient bail or security 
 in the sum of 300/., that he will not go or attempt to go into parts beyond 
 seas, without leave of her majesty's Court of Chancery; and in case he 
 refuses so to do, I command you or the one of you that you commit him 
 to her majesty's next prison within my bailiwick, there to be kept in my 
 custod}'^, until he shall do it of his own accord, and have you this, and 
 so forth. Given under the seal of my office this day of , 18 — . 
 
 (Seul of office.) By the sheriff. 
 
 Take security in the sum of 300/. 
 
 Fees on a Writ Ne E.reat Regno. 
 
 £ s. d. 
 
 Warrant 6 8 
 
 Return 11 8 
 
 £0 18 4 
 
 Three shillings is the fee upon a common warrant; and Gs. 8d. when 
 the writ is of a special or uncommon nature. 
 
 Return to a Writ of Ne Exeat Regno, where a Defendant is not to be 
 
 found. 
 
 I humbly certify that the within named C. D. is not found in my baili- 
 wick. A. B. esquire, sherifll". 
 
 Return to the same Writ, where Defendant has been arrested, and 
 give)! security. 
 
 I humbly certify, that I have caused the within named C. D. personally 
 to come before me, and he hath found bail in the sum of 300/., according
 
 APPENDIX. 
 
 .549 
 
 to the command of the within named writ. Given under the seal of my chap, xxr^ 
 office. 
 
 {Seal of office.) («) A. B. esquire, sheriff. 
 
 Return to the same Writ, when the Defendant has been arrested, and 
 
 on refusing to find bail is committed. 
 I humhly certify, that I have caused the within named C. D. person- 
 ally to come before me, and he having refused to give the bail or security 
 within mentioned, I have his body in the prison of our lady the queen 
 under my custody. 
 
 A, B. esquire, sheriff. 
 
 Waj-rant on a Writ de Excommunicato Capiendo. 
 
 N. {to 7vit.) A. B., esquire, sheriff of the county aforesaid, to J. S. 
 and T. P., my bailiffs, greeting : The right reverend Father in God Edward, 
 by divine providence bishop of Durham, having signified unto our sovereign 
 lady the queen by the said bishop's letters patent, that T. G., master of 
 arts, surrogate, lawfully appointed of William VV., doctor of laws, vicai-- 
 general, and official principal of the consistorial court of Durham, lawfully 
 constituted, in a certain cause of defamation or slander, and merely spiri- 
 tual, depending before him, rightly and duly proceeding between W. E. 
 of, &c. in my county and diocese of Durham, gentleman, the party agent 
 and complainant, of the one part, and H. D., of the same parish, county, 
 and diocese, blacksmith, the party defendant, and late of, &c. of the other 
 part, did, at the petition of the proctor of the said W. E., decree the said 
 H. D., for his manifest contempt and contumacy, in not appearing before 
 the said surrogate, at a certain competent day, time, and place to him in 
 this behalf appointed and long since elapsed, to answer the said William 
 E. in the aforesaid cause, being lawfully and peremptorily cited thereto, 
 three times publicly called, long and sufficiently expected, and in no wise 
 appearing, but contumaciously absenting himself, to be excommunicated, 
 and is by the ordinary authority of the same bishop excommunicated, nor 
 •will he submit to the justice of ecclesiastical censure; but forasmuch as 
 the royal power ought not to be Avanting to the holy church in its com- 
 plaints, I do, by virtue of her majesty's writ, to me directed and delivered, 
 command you, or the one of you, to attach the said H. D. by his body, 
 according to the custom of England, until he shall have made satisfaction 
 to the holy church, as well for the contempt as for the injury by him 
 done unto it, so that I may notify unto our said lady the queen how the 
 said writ shall be executed on the morrow of the Holy Trinity, whereso- 
 ever her majesty shall then be in England, that her majesty may cause 
 further to be done in the premises, what of right and according to the 
 form of the statute in this case made and provided shall be meet to be done : 
 and have you this, and so foi'th. Given under the seal of my office this 
 day of , 18—. 
 
 {Seal of office.) By the sheriff. 
 
 (a) The writ requires, when bail is taken, that it shall be certified under 
 seal.
 
 /
 
 INDEX. 
 
 A. 
 
 ACCEDAS AD CURIAM, 
 
 what, and when it lies, 411. 
 
 how to be executed, 41 1 . 
 
 return, how made, 411. 
 ACCOUNT, ACTION OF, county court has no jurisdiction in, 406. 
 
 ACCOUNTS, SHERIFF'S, 
 
 at what time and how passed, 379, 382. 
 sheriff, how sworn to, 381. 
 before whom to be passed, 379. 
 surplusage, how obtained, 383. 
 
 ACKNOWLEDQMENT, 
 
 of debt reducing demand below 40s. gives county courts juris- 
 diction, 405. 
 form of,. 534. 
 
 ACTIONS, 
 
 By the Sheriff. 
 
 against bailiff's sureties, 46. 
 
 for poundage and expenses, when maintainable, 114. 
 
 against rescuers, 96. 
 
 for injury to goods seized by him on^. fa. 272, 302. 
 
 for false representations made to him, 304. 
 
 where he has been obliged to pay debt and costs, 179. 
 
 for expenses incurred in the election of members of parliament, 
 440. 
 Against the Sheriff. 
 
 when it liesj and not against under-sheriff or bailiff, 38, 40, 44, 
 45,117. 
 
 not liable to, when he sends his mandate to bailiff of liberty, 61. 
 
 when against the old, and when against the new sheriff, 124. 
 
 not liable to, for executing irregular process, 67. 
 
 otherwise, where the court has no jurisdiction, 67. 
 
 when liable, in case of misnomer, 70, 119. 
 
 for breaking open an outer door, 75. 
 
 for executing a writ in a franchise, 59, 75. 
 
 for arresting defendant out of his county, 74. 
 
 for extortion, 115, 147. 
 
 not liable for criminal acts of his bailiffs, 44, 117. 
 
 for false return, when it lies, 117. 
 
 not liable to, for not returning a writ, 118. 
 
 for not taking, or not assigning bail-bond, 118, 152, 157. 
 
 for trespass in seizing body or goods of a wrong person, 119.
 
 / 
 
 ACTIONS, agaifixt the Sheriff'— (continued). 
 
 when liable to, for seizing goods after bankruptcy of defendant, 
 
 120. 
 for escape on viesne process, 179, et seq. 
 for escape of defendant taken on ca. sa. 200, et seq. 
 for not executing a capias lUlagalum, 233. 
 for escape on habeas corpus, 239. 
 
 for not paying over a year's rent on taking goods on fi. fa. 277. 
 for amount levied on fi. fa. 295. 
 does not lie for improperly exercising county court execution, 
 
 412. 
 for not receiving the vote of a freeholder at county election, 439. 
 plea of justification in, 122. 
 joining with defendant in justification, bad for one, bad for botli, 
 
 124. 
 
 ADMINISTRATORS. See Executors. 
 ADVERSE CLAIMS, 279. See Interpleader. 
 
 ADVOWSON, 
 
 not extendible on elegit, 309. 
 secus on outlawry or extent, 231. 
 
 AD QUOD DAMNUM, form of return, and inquisition on, 487. 
 
 AFFIDAVIT, 
 
 what, necessary to obtain an attachment against sheriff, 173, 177. 
 of merits, when required to set aside regular attachment, 178. 
 
 AGENT OF UNDER-SHERIFF, notice to, sufficient to fix under- 
 sheriff, 32. 
 
 AGREEMENT, 
 
 made on releasing defendant, or for ease and favour, void, 52. 
 to pay money on releasing goods taken on fi.J'a., good, 272. 
 
 AMBASSADORS, 
 
 their persons, servants, and goods, privileged from being taken, 
 
 136, 193, 245. 
 punishment of sheriff for arresting, 137. 
 
 AMENDMENT of sheriff's return, when allowed, 92, 94. 
 
 ANCIENT DEMESNE, lands held in, may be extended on an elegit, 
 308. 
 
 ANNUITY for years, may be taken on Ji. fa. 251. 
 APPEARANCE cures the insufficiency of sheriff's return, 91. 
 ARRAY, CHALLENGE OF, on account of partiality of sheriff, 385, 
 n. (a). 
 
 ARREST, 
 
 of person already in custody, 130. 
 who privileged from, 
 
 royal family and their servants, 133, 191. 
 
 peers and members of parliament, 134, 191. 
 
 clergymen, 135, 191. 
 
 ambassadors and their servants, 136, 191. 
 
 attornies, 137. 
 
 witnesses attending court, 138.
 
 INDEX. 
 
 553 
 
 ARREST, who privileged from— (contlmted). 
 
 bankrupts, discharged insolvents, 139, 141, 191, 192. 
 
 seamen and soldiers, 141. 
 
 executors, assignees, &c. 142. 
 
 when sheriff must allow defendant's privilege, 132, 192. 
 
 at what time to be made, 126, 193. 
 
 where it may be made, 127, 193. 
 
 outer door cannot be broken open in making, 128, 193. 
 
 what will constitute an arrest, 129, 193. 
 On bailable capias, 125, et stq. 
 
 fees of officers thereon, 99, 132. 
 
 sheriff's duty in conveying defendant to prison, 144, 14G, 147. 
 
 taking bail bond on, 151, et seq. 
 
 when defendant arrested, should be discharged, 156. 
 On ca. su. 193, et seq. 
 
 sheriff's duty after, 194. 
 On an extent, 359. 
 
 ASSIGNMENT of Bail Bond. 
 
 sheriff compellable to make, 157. 
 when, how, and by whom to be made, 158, 159. 
 effect of, 159. 
 form of, 470. 
 Of Replevin Bond, 417. 
 form of, 537. 
 
 ASSIZES, 
 
 sheriff's duty at, 390. 
 
 summoning juries to serve at, 390, 505, ct seq. 
 sheriff must attend in person at, 392. 
 bailiff of liberty must attend at, 57. 
 
 ASSIZE PRECEPTS, 
 
 how returned, 391. 
 
 form of return of, 531,532. 
 
 ATTACHMENT, 
 
 For not returning the writ, 
 
 when granted, 85, 86. 
 For not bringing in the bodi/, 
 
 when granted, 173. 
 
 irregular, how set aside, 174. 
 
 regular, on what terms set aside, 176. 
 
 courts will not set aside, when no bail bond is taken, 177. 
 Against rescuers, when granted, 98. 
 In process, how executed, 340, 453. 
 
 when bail may be taken on, 454. 
 
 the process of, in county court, 407. 
 
 ATTAINT of juries, abolished, 527. 
 
 ATTORNEY, 
 
 under-sheriff may practise as, 33. 
 
 bailiff of liberty cannot, 57. 
 
 privileged from arrest on mesne process, 137. 
 
 not privileged on ca. sa., ibid. 189. 
 
 name of, must be indorsed on warrant, 1 26. 
 
 person may sue by, in the county court, 404.
 
 / 
 
 554 INDEX. 
 
 B, 
 
 BAIL. See also title Bail Bond. 
 To the Sheriff. 
 
 deposit in lieu of, 147, et secj. 
 
 on attachment for contempt, 453. 
 
 on attachment out of Chancery, 544. 
 
 on writ of exigent, 222. 
 
 on capias ullagatum, 229. 
 
 may be taken on ca. sa. 190. 
 
 no bail on extent, ."GO. 
 
 to what extent liable, 163. 
 
 in what cases discharged, by laches or death, or by bankruptcy of 
 
 defendant, 164, 165. 
 render by, 1G6. 
 Special, to the action, how and when to be put in and perfected, 
 
 154, 158, 161. 
 on reversing outlawry, on what terms to be put in, 229. 
 
 BAIL BOND, 
 
 no stamp required on, 154. 
 
 under 23 Hen. 6, when required to be taken, 151. 
 
 sheriff liable to an action for not taking, 151, 152. 
 
 when to be executed, 153. 
 
 in what form to be taken. 153. 
 
 the amount in which the bond should be taken, 154. 
 
 Condition of, in what terms to be made, 154. 
 
 how prepared, and fee allowed thereon, 156. 
 Assignment of; sheriff obliged to assign, 157. 
 
 at what time may be taken, 158. 
 
 by whom and how to be made, 159. 
 
 effect of, 159. 
 Action on, by whom to be brought, 160. 
 
 at what time may be commenced, 160. 
 
 in what court to be brought, 162. 
 
 declaration and pleadings in, 162, 163. 
 
 sum recoverable in, 163. 
 Proceedings on, u-lien set aside, 
 
 death and bankruptcy of defendant, 164. 
 
 for laches of plaintiff, 165. 
 
 when defendant is rendered in discharge, 156, 166. 
 
 when regular, on what terms, 167. 
 
 for irregularity, 167. 
 On capias utlagaliiw, 229. 
 On attachment, 453, 454. 
 Form of, and of assignment, 469, 470. 
 
 BAILIFFS, 
 
 of liberties, 54, et scq. 
 
 perpetual, 39. 
 
 special, 40. 
 
 bound, 39. 
 
 qualification for office of, 41 . 
 
 authority of, 42. 
 
 his duty in executing writs, 43 (and see the heads of particular 
 
 writs). 
 sheriff's responsibility for acts of, 44.
 
 INDEX. 555 
 
 BMLIFFS— (son tinned). 
 
 how punished for misbehaviour, 45. 
 
 form of security of, 463. 
 
 form of indemnity for appointing special bailiff, 465. 
 BANKRUPT, 
 
 when privileged from arrest on mesne process, 139. 
 on ca. xa. 191. 
 
 not adviseable for sheriff to discharge, 132, 139, 191. 
 
 certificated, not privileged from arrest on extent, 360. 
 
 BANKRUPTCY, 
 
 and certificate of defendant, discharge bail before fixed, 165. 
 where goods seized after act of, sheriff how to act, 279, et seq. 
 when sheriff liable to an action for selling goods after, 120. 
 
 BARGAIN AND SALE of goods seized, form of, 378. 
 
 BENEFICED CLERK. See Clergyman. 
 
 BERWICK UPON TWEED, direction of process into, 66. 
 
 BILLS OF EXCHANGE, 
 
 may be taken on a Jieri facias, 250. 
 
 or on an extent, 369. 
 
 form of finding, on extent, 503. 
 
 BLANK WARRANT illegal, 72. 
 
 BOND, finding of, on extent, 502. 
 
 BOOKS. See Cheque Books and Poll Books. 
 
 BOOTHS, 
 
 for taking the poll at elections of members of parliament, when 
 
 to be erected, 428. 
 expense of, to be paid by the candidates, 440. 
 
 BOROUGH, 
 
 precept for the election of member of, 425. 
 form of, 541. 
 
 BRIBERY OATH, 
 
 what, when, and how to be taken at elections, 434. 
 form of, 542. 
 
 C. 
 CANDIDATE, 
 
 for election to serve in parliament, liability of, for expenses, 440. 
 declaration of qualification by, 430, 542. 
 
 CAPIAS (bailable). 
 
 Privilege from arrest on, 133 — 141. 
 
 wlien to be allowed by sheriff, 133. 
 Warra7it on, 71, 126. 
 
 form of, 469. 
 Arrest on, when, where, and how made, 126 — 128. 
 
 fees payable on, 99, 132. 
 
 officer's duty after, 144, 146, 147. 
 
 treatment of persons taken on, 147. 
 Escape of person anested on, what shall be, 179. 
 
 action for, when it lies, 181. 
 
 pleadings and evidence in, 183, 185.
 
 556 INDEX. 
 
 CAVI \S—(co7itmue(l). 
 
 Returns to, 81, et seq. 167. 
 form of, 470. 
 
 CAPIAS AD SATISFACIENDUM, 
 
 what, and when it lies, 189, 190. 
 
 arrest on, when, how made, 193. 
 
 sheriff's duty after arresting a person on, 194. 
 
 returns to, what good, 196. 
 
 poundage on, 195. 
 
 person arrested on, when to be discharged, 197. 
 
 Escape on, what shall be deemed, 200, el seq. 
 
 voluntary or negligent, 205. 
 
 sheriff's remedy for an escape, 207. 
 
 action of, 207. 
 
 by whom and against whom to be brought, 208, 209. 
 
 declaration and pleadings in, 209, 211, 213. 
 
 evidence in, 214, et seq. 
 
 form of warrants on, and returns to, 473, 474. 
 
 CAPIAS UTLAGATUM, 
 
 general or special, nature of, 227, 228. 
 bow executed, 228. 
 bail on, when to be taken, 229. 
 Special, how executed, 230. 
 
 inquisition on, 231. 
 
 seizing goods, &c. on, 232. 
 
 return to, 232. 
 
 preference in case of several writs of, 233. 
 
 fees for executing, 103, 233. 
 
 landlord's claim for rent on, 233. 
 
 actions against the sheriff in respect of, 233. 
 
 restitution of goods taken on, 234. 
 
 forms of returns to, 474, 475. 
 
 CAPIAS IN WITHERNAM, 419. 
 
 CASE, ACTION UPON, 
 
 for false return, when it lies, 117. 
 
 for escape, 179, 181, 207. 
 
 for not arresting, 179, 182. 
 
 for not assigning bail bond, 158, 181. 
 
 for not executing capias utlagatum, 234. 
 
 CERTAINTY required in sheriff's return, 89. 
 
 CHANCERY, 
 
 Attachment out of, and bail on, 454. 
 
 form of warrant and return on, 546, 547. 
 
 CINQUE PORTS, direction of process to, 66. 
 
 CIRCUIT. See Assizes. 
 
 CLERGYMAN, 
 
 performing divine service, privileged from arrest, 135. 
 return to^. Ja. against, 294. 
 form of such return, 482. 
 
 CLERK OF THE CROWN, 
 
 to receive poll-books after election, 437.
 
 INDEX. 
 
 557 
 
 CLERK OF THE PEACE, 
 
 to send in roll of fines estreated at sessions to sheriff, 395. 
 to certify the same into Exchequer, 397. 
 
 CONSTABLES, 
 
 to be summoned to attend assizes, 390. 
 
 to be summoned to attend sessions, 393. 
 
 panel of names in the return to assize precept, 39L 
 
 panel of names to be returned at sessions, 394. 
 
 form of panels, 446. 
 CONSUL not privileged from arrest, 136. 
 CONTEMPT, attachment for, how executed, 453, 454. 
 CONVOCATION, members of, privileged from arrest, 135. 
 
 CORONER, 
 
 how elected, 444. 
 
 qualifications for the office of, 444. 
 
 direction of process to, 64. 
 
 to give judgment in outlawry, 223, 404. 
 
 COUNTY CLERK, by whom appointed, 30, 404. 
 
 COUNTY COURT, 
 
 jurisdiction of, 402. 
 when and where to be holden, 403. 
 the judge of the court, 403. 
 clerk of, how appointed, 30, 404. 
 bailiffs of, 405. 
 
 parties may sue by attorney in, 404. 
 what pleas may be holden in, 405. 
 process and declaration in, 407. 
 trial and execution in, 409. 
 removal of causes from, 409. 
 ' actions against officer of, 412. 
 proceedings in replevin in, 413. 
 
 COUNTIES PALATINE, direction of process to, 05. 
 
 COURTS, SUPERIOR, 
 
 sheriff the officer of, 64. 
 
 irregular process out of, justification to sheriff, 65, 67. 
 
 where court has no jurisdiction, 65, 67, 08. 
 
 CROWN, priority of, 248, 362. 
 
 CROWN PROCESS. See Extents. 
 annual, different kinds of, 352. 
 The great roll or long wril, 352. 
 
 how executed, 353. 
 
 forms of warrant and returns on, 401, 492. 
 Summonx of the pipe, how executed, 353. 
 
 form of warrant, 491. 
 Sum?m)ns of' the green wax, how executed, 353. 
 
 form of warrant, 492. 
 Clcrgt/men's process, 354, 493. 
 Distringas against parishes and collectors, 354, 355, 493.
 
 558 INDEX. 
 
 CROWN VROCESS— (continued). 
 
 Dish-ingas against accountants, 355. 
 scirej'acids on port bonds, 354. 
 forms of warrants on, return to, 494, 495. 
 poundage on, 373, el setj. 
 
 D. 
 
 DAMAGES, See Writ of Inquiry. 
 in the action of escape, 188, 216. 
 treble for extortion, what, 115. 
 
 DEATH, 
 
 of sheriff, office determines, 8. 
 
 under-sheriff' to perform duties, 8. 
 of dejendant, goods may be taken on fi.fa. after, 244. 
 
 not a good return to exigent, 224. 
 of plaintiff, cu. sa. or ji. fa. may be executed after, 193, 244. 
 of queen does not determine office of sheriff, 8. 
 DEBT, 
 
 for escape, not now maintainable, 207. 
 for money levied on ji. fa. 295. 
 
 DEBTS, may be taken on extent, 369. 
 
 DEMAND, not necessary before action against sheriff for money levied, 
 295. 
 
 DEMISE OF THE CROWN, sheriff holds his office for six months 
 after, 8. 
 
 DEPOSIT, 
 
 Of monei/, in lieu of bail, 147. 
 paying into court, 148. 
 when paid out to plaintiff, 151. 
 when to defendant, 150. 
 
 DEPUTY, 
 
 under-sheriff, general, 36, 37. 
 what acts sheriff cannot do by, 36, 37. 
 acts must not be alleged to be done by, 36, 37, 404. 
 DEPUTY SHERIFFS, at election of members, 430. 
 
 DETAINER, what, 195. 
 
 to be noticed in indenture of turn-over, 22, 23. 
 
 DEVASTAVIT, 
 
 Return of, when proper, 293. 
 form of return of, 481. 
 
 DIEM CLAUSIT EXTREMUM, when it lies, 357. 
 
 DISCHARGE, 
 
 of person arrested on ?;?e5«e /)?'0(ess, 156, 
 of person arrested on ca. sa. 197. 
 
 DISTRINGAS, 
 
 to outlawry, 219, 220. 
 
 in process in real actions, 341 . 
 
 in process in personal actions, 453.
 
 559 
 
 DISTRINGAS- (continued). 
 
 out of Exchequer, against collectors, parishes, &c. 354, 355. 
 against old sheriff to sell goods, 271. 
 to compel lord to hold a court, 411. 
 forms of returns to, 491, 494. 
 
 DISTRINGAS NUPER VICECOMITEM, 271. 
 
 DOORS, OUTER, when sheriff may and may not break open, 75. 
 
 DURHAM, sheriff of, now appointed by the crown, 11. 
 
 E. 
 
 EJECTMENT. See Habere facias Possessionem. 
 
 ELECTION OF KNIGHTS OF THE SHIRE, 
 
 the writ for, 424. 
 
 precept to returning officer of boroughs, 425. 
 
 proclamation requisite, 426, 427. 
 
 notice of election, 426, 427. 
 
 polling districts, 428. 
 
 polling booths, 428. 
 
 appointing poll-clerks, 428, 429. 
 
 inspectors and deputy sheriffs to be appointed at, 429, 430. 
 
 hour and mode of proceeding at, 430. 
 
 condidates at, qualifications of, 430, 431. 
 
 to be determined by view or poll, 432. 
 
 inquiry to be made of voters, 433, 434. 
 
 poll, how to be taken, 433, et seq. 
 
 personating voters, 435. 
 
 no scrutiny at, 434. 
 
 votes, how taken, 435. 
 
 closing the poll, 436. 
 
 poll books, custody of, 437. 
 
 copy of poll to be given on demand, 438. 
 
 ELECTION OF CORONER. See Coroner. 
 
 ELEGIT, 
 
 writ of, 305. 
 
 nature of, and when it lies, 305, 306. 
 
 what goods may be taken on, 307. 
 
 how goods taken on, should be disposed of, 308. 
 
 what lands may be taken on, 308. 
 
 trust estates, 309, 310. 
 
 inquisition, how and when held, 311. 
 
 of the finding of the jury on, 312. 
 
 lands, how to be set out, 312. 
 
 when several writs of, 314. 
 
 goods and lands, how delivered on, 314. 
 
 return to, how made, 314. 
 
 poundage on, 112, 314. 
 
 restitution of goods taken on, 314. 
 
 forms of warrant and return to, 482, 483, 484. 
 
 ELISORS, when writs are to be directed to, 64, 385.
 
 / 
 
 560 INDEX. 
 
 ELONGATA, return of, 420, 539. 
 
 ELY, ISLE OF, 
 
 direction of process to, G5. 
 
 trespass, executing writ directed to bailiff, 59. 
 
 ENTRY of tenant by elegit, 314. 
 
 EQUITY OF REDEMPTION, 
 
 cannot be taken on ft. J'u. 256. 
 or elegit, 310. 
 
 ESCAPE, 
 
 On builuble capias, 
 
 what shall be, 179. 
 
 action for, when maintainable, 181. 
 
 declaration in, 183. 
 
 pleas in, 185. 
 
 evidence, 185. 
 
 damages in, 188. 
 On ca. sa. 
 
 what shall be deemed, 200, ei scq. 
 
 voluntary or negligent, 205. 
 
 recaption, effect of, in, 206. 
 
 action for, 207. 
 
 lies, although writ and judgment are irregular, 201, 202. 
 
 by and against whom it lies, 208. 
 
 declaration in, 209. 
 
 particulars in, 211. 
 
 pleadings in, 211, 213. 
 
 evidence in, 214. 
 
 damages recoverable in, 216. 
 
 staying proceedings in, 217. 
 On capias utlagatum, 234. 
 On habeas corpus, 239. 
 
 ESCAPE WARRANT, 180. 
 ESTREATS AT SESSIONS, how levied, 394. 
 EVIDENCE. See Action, and Escape. 
 
 EXCHEQUER, COURT OF, See Extents; Crown Process; She- 
 riff's Accounts. 
 EXCOMMUNICATO CAPIENDO, form of warrant on, 465. 
 EXCUSE, return of, when good, 95, 96, 97. 
 
 EXECUTION, WRIT OF. {See under heads of particular writs.) 
 EXECUTION OF CRIMINALS, sheriff's duty in, 392, n. {q). 
 
 EXECUTION OF WRITS IN GENERAL, 
 
 sheriff's duty in, 67, 70. 
 
 when force may be used in, 73, 75. 
 
 when, where, and how done, 74, 77. 
 
 EXECUTOR AND ADMINISTRATOR, 
 
 not liable to be arrested for testator's debts, 142, 191. 
 
 goods in hands of, may be taken on execution against testator, 247. 
 
 fi-fa. against, goods of testator cannot be taken under, 258. 
 
 returns to^. fa. against, 293. 
 
 forms of returns, 481.
 
 INDEX. 561 
 
 EXIGENT, WRIT OF, 
 
 when it lies, 222. 
 
 nature of, and how executed, 222. 
 
 return to, how made, 223, 474. 
 
 proclamations on, 224, 225. 
 
 return to proclamation on, 226, 475. 
 
 fees on proclamation, 227. 
 
 EXPENSES OF SHERIFF, in the election of members of parliament, 
 what recoverable, 440, 441, 442. 
 
 EXTENT, WRIT OF, 
 
 nature of, 355. 
 
 different kinds of, 356. 
 
 form of, 358. 
 
 warrant on, 359. 
 
 how executed, 359. 
 
 defendant, when to be taken on, 359, 360. 
 
 goods, how taken and used, 360, 361. 
 
 how bound, 362. 
 
 priority in favour of crown, 362. 
 
 priority between several extents, 365. 
 
 lands, what may be taken on, 367. 
 
 lands, from what time bound, 368. 
 
 debts, what may be taken on, 369. 
 
 inquisition on, how held, 370. 
 
 return to, 371. 
 
 liabilities of sheriff on, 372. 
 
 form of inquisition and return, 498, 499. 
 
 EXTORTION, ACTION FOR, 115, 147. 
 
 FALSE IMPRISONMENT, action for, when it lies against the sheriff, 
 119. 
 
 FALSE JUDGMENT, 
 
 writ of, 411. 
 
 how returned, 412. 
 
 form of return to, 535, n. (/), 
 
 FALSE RETURN, action for, 119, 297. 
 
 FARM, the sheriff must not let his county to, 27. 
 
 FARMS OF THE COUNTY, what, 350, 377. 
 
 FEES. See Poundage, and different writs under the proper heads. 
 on arrest on mesne process, what allowed, 99, 132. 
 
 FEME COVERT, when liable to be arrested, 189. 
 
 FEME should not be returned outlawed, but waived, 222, 223. 
 
 FERMS. See Farms. 
 
 FIAT OF BARON, for extent, 358. 
 
 FIERI FACIAS, 
 
 writ of, when it lies, 242. 
 
 how executed, 242. 
 
 o o
 
 562 INDEX. 
 
 FIERI FACIAS— (continued). 
 
 when and where to be execnted, 243, 244. 
 
 where by reason of privilege it cannot be execnted, 215. 
 
 amount to be levied on, 245. 
 
 property in goods, how bound b)', 240. 
 
 priority in case of several writs of, 247, 248. 
 
 wluit things may be taken on, 249. 
 
 money, bank notes, bills, &c., 250. 
 
 fixtures, agricultural produce, 25.'5, 254. 
 
 interest of defendant in goods to be seized, 255. 
 
 equitable interest, 25G. 
 
 partnership property, 256. 
 
 goods of testator, 258. 
 
 goods vested in trustees, 259. 
 
 goods fraudulently conveyed away, 261. 
 
 where defendant has become bankrupt, 263. 
 or insolvent, 267. 
 
 goods seized on, how sold, 268. 
 
 venditioni exponas, 270. 
 
 distringas nuper vicecomilem, 271. 
 
 bond given to sheriff to release goods, 272. 
 
 payment of debt and costs, good, 272. 
 
 sheriff's property in goods seized on, 272. 
 
 defendant, when discharged by levy, 273. 
 
 restitution of goods taken on, 273. 
 
 landlord's claim for rent on, 274. 
 
 queen's taxes, claim for, 279. 
 
 interpleader, 279, 282. 
 
 returns to, 289, et seq. 
 
 forms of returns to, 479, 482. 
 
 actions against sherifTin respect of, 120, 295. 
 FIERI FECI, 
 
 form of return of, 479, 480. 
 
 when proper return, 291. 
 
 FILA.CER, return to exigent and proclamation, to be filed with, 227. 
 FINE, 
 
 county court cannot impose a, 406. 
 
 imposed, or estreated at sessions, how levied, 394. 
 
 FIXTURES, 
 
 cannot be taken on Ji. fa., 252. 
 nor on capias uilagatum, 231. 
 replevin does not lie for, 413. 
 FRANCHISE. 
 what, 55. 
 
 when sheriff may enter, 58. 
 bailiff of, must not be an attorne)', 57. 
 
 what writs he may execute, 55. 
 
 gaol of, 57. 
 
 of sheriff's mandate to bailiff of, 58. 
 
 duties and liabilities of bailiff of, 59, GO. 
 FRAUDULENT SALE, 
 
 does not protect goods from Ji.J'a., 261. 
 what considered so, 261, 262.
 
 56.3 
 
 FRESH PURSUIT, 
 
 recaption on, what, 20G. 
 
 effect of, 206. 
 
 must be pleaded, 211. 
 
 G. 
 
 GAOL, 
 
 transfer of, to the new sheriff, 22. 
 
 escapes from, sheriff liable for, 49. 
 
 of franchises, 4S, 57. 
 
 who liable to repair, 48. 
 
 persons arrested, when to be conveyed to, 144, 145, 140. 
 
 prisoners, how to be treated in, 50, 147. 
 
 GAOLER, 
 
 deputy of sheriff, 49. 
 
 when punishable for escape, 50. 
 
 security of, to sheriff, 51. 
 
 form of security of, 4G5. 
 
 to preserve prison, 51. 
 
 bonds from prisoners to, void, 52. 
 
 no fees to be taken by, on liberate, 53. 
 
 GLEBE LAND, not extendible on an elegit, 309. 
 
 GRAND JURY, 
 
 how selected and summoned, 390, 393. 
 panel of, 391,531, 534. 
 
 GRAND ASSIZE, trial by,. 345. 
 
 GUILD ABLE, what, 39, n. (/). 
 
 H. 
 
 HABEAS CORPORA JURATORUM, 391. 
 
 HABEAS CORPUS, 
 when it lies, 235. 
 how to be executed, 236. 
 return to, how made, 237. 
 penalty for not obeying, 239. 
 action for false return to, escape, &c., 239. 
 fees, 103, 270. 
 
 must be obeyed, although fees impaid, 239, n. (6). 
 form of return to, 476. 
 
 HABERE FACIAS POSSESSIONEM, 
 
 writ of, 317. 
 
 how executed, 317. 
 
 possession, how to be delivered on, 318. 
 
 in case of disturbance, 319. 
 
 when new writ may be had, after possession given, 320. 
 
 return to, 321 . 
 
 poundage on, 112, 322. 
 
 action against sheriff in respect of, 322. 
 
 forms of returns to, 485.
 
 564 INDEX, 
 
 HABERE FACIAS SEISINAM, 
 
 writ of, 347. 
 
 how and when to be executed, 347 
 
 poundage on, 348. 
 
 return to, 348. 
 
 HOUSE OF COMMONS, 
 
 sheriff punishable by, for partiah'ty at election, 438. 
 and for arresting member, 13.5. 
 
 HUNDREDORS, ca. sa. does not lie against, 191. 
 
 I. 
 
 INDEMNITY TO THE SHERIFF, 
 
 in what cases the court would compel the parties to give, 280, 281. 
 usual, in executing hub.fuc. poss., 318. 
 
 INDEMNITY BOND, form of, 478. 
 
 INFANT, liable to be taken on cu. sa., 194. 
 
 INFERIOR COURT. See County Court ; Accedas ad Curiam. 
 
 INQUIRY, WRIT OF, 
 nature of, 322. 
 in what cases necessary, 322. 
 notice of executing, 324. 
 Inquest on, at what time to be held, 324. 
 
 before whom to be held, 324. , 
 
 jury on, how summoned and fined, 325. 
 
 how executed, 326. 
 
 evidence before, 327. 
 
 damages, how assessed, 328. 
 
 return to, 328. 
 
 judgment and execution, 328. 
 
 fees on, 330. 
 
 sheriff, how liable for false return of, 330. 
 In Replevin, what, and how executed, 422. 
 under 8 & 9 Will. 3, c. 11 . . 328. 
 form of return, and inquisition on, 487. 
 form of inquisition on ud quod duiimum, 487. 
 form of writ of inquiry in replevin, 540. 
 
 INQUISITION, 
 
 On outlawry, when and how taken, 230, 231. 
 
 form of, 476. 
 On an elegit, how taken and returned, 311, 312, 314. 
 
 from of, 483. 
 On an extent, how taken and returned, 370, 371. 
 
 form of, 499. 
 
 INSOLVENT DEBTOR, 
 
 effect of remand by the court, 199. 
 authority of gaoler to detain under, 199. 
 when liable to be arrested, 141, 191. 
 
 INTEREST IN GOODS, what renders them liable tof. fa., 255, et seq.
 
 565 
 
 INTERPLEADER, 279, 2S2. 
 statutes relating to, 282. 
 when granted, 286. 
 proceedings on, 287. 
 
 IRREGULARITY IN PROCESS, 
 
 notwithstanding, sheriff" bound to execute, 67, 68, 69. 
 sherifTjustified in executing notwithstanding, 67, 68, 69. 
 no answer to action for escape, 201, 202. 
 
 ISSUES ON DISTRINGAS, reasonable, must be returned, 341. 
 
 JOINT TENANT, finding estate, in inquisition, 484. 
 
 JUDGES, 
 
 lodgings of, payment for how made, 392. 
 sheriff to attend on, at the assizes, 392, 
 
 JUDGMENT, IRREGULARITY OF, 
 
 no excuse for not executing writ, 67, 68, 69. 
 no answer to an action for escape, 201, 202. 
 
 JURISDICTION, 
 
 want of, in court, makes sheriff trespasser for executing process, 
 
 67, 68, 69. 
 sof county court, 405, 406, 407. 
 want of, in county court, how taken advantage of, 41 2. 
 
 JURY, 
 
 how selected, 385, 386. 
 
 jurors' book, 385. 
 
 qualifications of, 505, 506. 
 
 exemption from serving on, 387, 506. 
 
 how summoned, 387. 
 
 punishment of persons not summoning, 387. 
 
 panels of, how made, 388. 
 
 list of persons to serve on, open for inspection, 388. 
 
 names of, to be put into box, 388. 
 
 special, how summoned, &c., 388. 
 
 good jury, 389. 
 
 in criminal cases, 389. 
 
 punishment of sheriff in relation to, 389. 
 
 grand jury, 390. 
 
 at sessions, how summoned, 393. 
 
 in the county court, 409. 
 
 statutes relating to, 505, 528, 529. 
 
 JURORS' BOOK, how to be made, 385. 
 
 JUSTICIES, 
 
 nature of, 406. 
 
 in county court, in what cases it lies, 407. 
 
 form of warrant of, 534. 
 
 JUSTIFICATION, 
 
 by sheriff to action of trespass, what good, 67, 68, 69. 
 how pleaded, 122.
 
 / 
 
 566 INDEX. 
 
 LANDLORD, 
 
 his claim for rent upon a levy on tenant, 274 — 279. 
 
 on elegit, 308. 
 has no claim against the crown, 364. 
 
 LANDLORD AND TENANT, 
 
 agreement hetwecn, notice to sheriff of, respecting grass, &:c. 
 grown on land, 254, 255. 
 
 LEASE, 
 
 may he taken on fi. fa. 251. 
 
 how sold under y/./a. 252. 
 
 assignment of, when it may be made by sheriffj 252, n, (z). 
 
 how it may be taken on elegit, 308. 
 
 LAVARI FACIAS, 
 
 superseded by elegit, except in outlawry, 305. 
 what may be taken under, 231, 232. 
 inquisition on, 231. 
 from county court, 409. 
 how executed, 409. 
 
 LEVY, meaning of term, 242. 
 
 LIEN, of crown, on exciseable articles, 366. 
 
 LONDON, SHERIFFS OF, 
 
 when and how appointed, 12, 13, 14. 
 
 punishment for not serving, &c. 13. 
 
 oath of, 13. 
 LUNATIC, return to capias that defendant is a, 472. 
 
 M. 
 
 MANDAMUS, 199. 
 
 MANDATE, SHERIFF'S, TO BAILIFF OF FRANCHISE, 
 
 when to be made, 58. 
 when not necessary, 58, 59. 
 how executed, 60. 
 form of, 469. 
 
 MANDAVI BALLIVO, RETURN OF, 
 
 when good, and how made, 98, 293. 
 
 form of, 472,481. 
 MARINES, when privileged from arrest, 141, 142. 
 MELIUS INQUIRENDUM, writ of, when it lies, 232. 
 MEMBERS OF CONVOCATION, privilege of, from arrest, 135. 
 
 MEMBERS OF THE HOUSE OF COMMONS, 
 
 privilege of, from arrest, 135, 191. 
 
 election of, for counties, when and how had, 424, et seq. ; and see 
 
 Election. 
 qualification for, 430.
 
 INDEX. 567 
 
 MESNE PROCESS, 
 
 execution and return of, by capias, 124, et seq.; and see Capias 
 
 (bailable), 
 by attachment and distringas, 340, 341, 
 
 MIDDLESEX, SHERIFF OF, 
 how appointed, 12. 
 oath of office, 13. 
 penalty for not serving office of, 13. 
 
 MISFEASANCE, actions against sheriff for, 38, 44, 117. 
 
 MISNOMER, 
 
 of defendant in process, officer a trespasser for executing, 70. 
 
 otherwise in a ca, sa. 70. 
 
 of sheriff in return, not material, 89, n. (k). 
 
 MONEY may be taken on Ji. fa., 250. 
 
 deposit of, in lieu of' bail, stc Deposit. 
 MONEY HAD AND RECEIVED, action for, lies against sheriff for 
 
 money levied, 295, 296. 
 
 MOTION, 
 
 to stay proceedings on bail-bond, 164, 166. 
 to set aside regular attachment, 176, 177. 
 to set aside attachment for in-egularity, 174, 175. 
 to pay money levied into court, 295. 
 
 N. 
 
 NEW SHERIFF, 
 
 before entering on office to take oaths, 17. 
 
 to take a transfer of writs and prisoners, 22, 23. 
 
 when old sheriff liable and not the new, 23, 24, 25. 
 
 apportionment of fee between old and new, 26. 
 
 when old sheriff to be ruled to bring in body, 171. 
 NE EXEAT REGNO, writ, warrant, and return to, 547, 548. 
 NON EST FACTUM, plea of, to action on bail-bond, when proper, 162. 
 
 NON EST INVENTUS, 
 
 return of, when proper, 168, 196. 
 forms of, 470, 473. 
 
 NON OMITTAS WRIT, 
 
 may be sued out in the first instance, 59. 
 sheriff may execute within a liberty, 59. 
 
 NOTICE, 
 
 of action against sheriff, unnecessary, 122. 
 
 of rent being due, necessary to entitle landlord to, 276, 278. 
 
 of agreement between landlord and tenant, as to corn growing, 
 
 &c., 254, 255. 
 of holding inquisition on elegit, unnecessary, 311. 
 of executing writ of inquiry, necessary, 324. 
 
 NULLA BONA, 
 
 return of, when propei', 290. 
 
 when not, 290. 
 
 forms of returns of, 481.
 
 568 INDEX. 
 
 o. 
 
 OATH, 
 
 To be laken bt/ sheriff". 
 
 of office, wliat, when and how taken, 17, 18. 
 
 of office of sheriff of London and Middlesex, 13. 
 
 of office of sheriff of Wah?s, 18. 
 
 of allegiance and supremacy, when to he taken, 17. 
 
 schedule of oaths of allegiance, &c., as return to, 455. 
 
 before whom to be taken, 19. 
 
 at election for county M. P., 430. 
 To be taken bt/ under-sheriff, 34. 
 
 of jurors and witnesses on writ of inquiry, 326, n. (.r), 46S. 
 the same on writ of trial, 488. 
 
 of poll-clerks and other persons employed at elections, 429. 
 At county elections. 
 
 bribery oath, how administered, 434, 
 
 voter's oath, 434. 
 candidate's oath of qualification, 430. 
 oaths of allegiance, supremacy, abjuration, &c. 543,544, 545. 
 
 OFFICERS OF SHERIFF. See Bailiff; Gaoler; Under-sheriff, 
 &c. 
 
 OFFICE OF SHERIFF, 
 
 antiquity and dignity of, 1, 2. 
 duties attached to, 2, 3. 
 qualifications for, 4, 5. 
 punishment for refusing, 6. 
 what office inconsistent with, 6. 
 duration of, 7. 
 determination of, 7, 8. 
 oath of, 17. 
 
 OFFICES created by sheriff not to be let or sold, 27. 
 
 OLD SHERIFF, 
 
 transfer of office from, 21. 
 
 when liable after his office ceases, 25. 
 
 when he may be ruled to return writ, 171. 
 
 and to bring in body, 171. 
 
 attachment, when granted against, 171. 
 
 when distrained to sell goods, 271. 
 
 OUTLAWRY. See Exigent and Capias Utlagatum. 
 
 P. 
 
 PALACE, privilege of, 6, 245. 
 
 PARLIAMENT, 
 
 writ to summon a, 424. 
 
 sheriff's duty thereon, 425, et seq. 
 
 PARTICULARS, 
 
 of goods in hands on ji. fa., need not be stated in return, 291. 
 of escape. &e Escape.
 
 INDEX. 569 
 
 PARTNERSHIP, 
 
 property may be seized on f. fa. 256. 
 may be taken on an extent, 861. 
 
 PAYMENT, 
 
 sheriff cannot receive, on ca. sa., 201. 
 sheriff may receive, on Ji.Ja., 272. 
 
 PEERS, 
 
 privileged from arrest, 191. 
 
 sheriffnot trespasser, for arresting, 69, 132. 
 
 PERSONATION OF VOTERS, 
 enactments relating to, 435. 
 
 PLEA AND PLEADINGS. See Action, Escape, Fresh Pursuit, 
 and other titles. 
 
 POLL, 
 
 at county elections, how taken, 432, 433. 
 booths for taking the, when to be erected, 428. 
 mistake in, how corrected, 436. 
 closing, 436. 
 
 POLL BOOKS, 
 
 custody of, after election, 437. 
 
 copy of, to be delivered on demand, 438. 
 
 POLL CLERKS, 
 
 when to be appointed, 428, 429. 
 expense of, 441. 
 
 PONE, 
 
 writ of, to remove suit from county court, 409. 
 writ of, on qucire impedit, and return to, 490. 
 
 POSSE COMITATUS, 
 
 sheriff may raise, 2. 
 
 what, 2, 73. 
 
 bound to raise on writs of execution, 73, 193. 
 
 POSSESSION, 
 
 of goods conveyed, badge of fraud, 261, 262. 
 how given on hub.J'ac. poss., 318. 
 
 POUNDAGE, 
 
 on 28 Eliz. c. 4 . . 101. 
 
 amount of, 101, 108. 
 
 on ^./«., 110, 245. 
 
 on ca. sa., Ill, 196. 
 
 on crown writs, 373. 
 
 on elegit, 112, 315. 
 
 hab.foc. poss., or seisin, 112, 322, 348. 
 
 how recovered, 112. 
 
 penalty for taking too much, 113. 
 
 not allowed to, on cup. utlagat., 233. 
 
 or attachment, 454. 
 
 On crown ivrits out of Exchequer, what, 373. 
 
 apportionment of, between old and new sheriff, 26, 373. 
 
 penalties for extortion in taking, 373, 374. 
 
 how levied and obtained, 375.
 
 570 INDEX. 
 
 PRISONERS, 
 
 to be turned over to new sheriff, witli cause of detention, 22, 23, 24. 
 
 otlicrwise at peril of old sheriff, 25, 26. 
 
 how to be treated, 52, 147. 
 
 before discharged, detainers to be searched for, 150, 197. 
 
 on ca. sa., to be kept in close custody, 198. 
 
 how to be removed on habeas corpus, 236. 
 
 PRIVILEGE, local, in which writs cannot be executed, 75, 127. 
 
 PRIVILEGE FROM ARREST, 
 
 on mesne process, peers and members of parliament, 134, 135. 
 
 royal family, 133. 
 
 members of convocation and clergymen, 135. 
 
 ambassadors, 130. 
 
 attornies, 137. 
 
 witnesses, 138. 
 
 bankrupts, 139. 
 
 insolvent debtors, 141. 
 
 seamen and soldiers, 141. 
 
 writ of protection, 142. 
 
 executors, &c. 142. 
 
 when sheriff should take notice of, 131, 132. 
 
 On ca. sa., 191. 
 PROCEDENDO, awarded in suits under 40s. removed from county 
 
 court, 410. 
 PROCEEDINGS, staying, on bail bond, 164. 
 
 PROCLAMATION, 
 
 Writ of, in outlawrj/, 224, 225. 
 how made and returned, 226. 
 form of return, 475. 
 On summons in real actions, 338. 
 
 return of, 339. 
 Of county election, when to be made, 426. 
 PROHIBITION, lies to county court, where proceeding without juris- 
 diction, 412. 
 
 PROMISSORY NOTE, 
 
 may be taken on ji. fa., 250. 
 
 when and how taken on extent, 369. 
 
 PROPERTY, 
 
 what, in goods liable to ji. fa., 255, et seq. 
 plea of, in replevin, effect of, 420. 
 
 PROPRIETATE PROBANDA, 
 
 writ of, 419. 
 
 how executed, 420. 
 
 PROTECTION, queen's, defendant privileged by, 142. 
 
 PURCHASER OF CROPS, under ji. fa., how to use them, 253, 254. 
 
 Q. 
 
 QUAKER, affirmation of, at elections, 434, 544. 
 
 QUx^RE IMPEDIT, forms of writ of, warrant on, returns to, and pone 
 on, 488, 489, 490, 491.
 
 571 
 
 QUARTER SESSIONS. See Sessions. 
 
 QUEEN, 
 
 and lier family privileged from arrest, 133, 191. 
 may protect debtor, 142. 
 palace of, how privileged, 245. 
 not bound by statute, 3G0, 364. 
 priority of, over subject, 248, 362. 
 
 R, 
 
 REAL ACTIONS, 
 
 Summons in, what, 336. 
 
 how executed, 336. 
 
 summons should be actually made, 337. 
 
 proclamation, how made, 338. 
 
 return to summons and proclamation, 339. 
 
 writ of attachment, when it hes, 340. 
 
 how executed, 341. 
 Distringas in, when it lies, 341 . 
 
 how executed and returned, 341. 
 Grand cape, when it lies, 342. 
 
 how executed, 343. 
 
 return to, 343. 
 Writ o/'viejv in, when necessary, 344. 
 
 how executed, 344. 
 
 return, 344. 
 Trial by grand assize, what, 345. 
 
 how summoned, &c., 346. 
 Execution in hub. fac. seisinum, 347. 
 
 when necessary, 347. 
 
 how executed, 348. 
 
 poundage on, 348. 
 
 RE-CAPTION, 
 
 after escape of person arrested on mesne process, 180. 
 
 of person arrested on ca. su., 206. 
 
 must be pleaded to an action of escape, 21 1, 212. 
 
 RECOGNIZANCE, sheriff may take, 2, 400. 
 
 RECORD, return must not falsify the, 91. 
 
 RECORDARI FACIAS LOQUELAM, 
 
 when it lies, 410. 
 
 how executed and returned, 410. 
 
 form of return to, 535. 
 
 RECTOR, return of nulla bona, and that defendant is, 482. 
 
 RENT CHARGE, 
 
 may be taken on elegit, 308. 
 
 RENT SECK, cannot be extended on elegit, 308, 309. 
 
 REPLEVIN, 
 
 in what cases it lies, 413. 
 
 by whom action of, may be brought, 414. 
 
 against whom, 414.
 
 572 INDEX. 
 
 RE?LEY IN— (continued). 
 
 different kinds of, 414. 
 replevin clerks, 416. 
 how granted, 41G. 
 pledges in replevin, 41 G. 
 replevin bond, 417. 
 deliverance in, bow made, 419. 
 writ de proprietate prolxinda in, 419. 
 proceedings in county court, 420. 
 retofu. Iiubtnd. liow executed, 420. 
 proceedings against the sheriff in, 421. 
 extent of liability of sheriff, 422. 
 writ of inquiry in, 422. 
 forms in, 536 — 541. 
 
 REPLEVIN BOND, 
 
 what, 417. 
 assignment of, 417. 
 action upon, how brought, 418. 
 forms of bond and assignment, 537. 
 REPLEVIN CLERKS, appointment and duties of, 29, 30,416. 
 
 RESCUE, 
 
 when a good return, 96. 
 when not, reason of, 96. 
 RESIDENCE, of sheriff, need not now be in the county, 6. 
 
 RESTITUTION, 
 
 of goods taken on fi.J'a., 273. 
 on outlawry, 234. 
 on elegit, 315. 
 
 RETORNO HABENDO, how executed, 420, 421. 
 
 RETURN TO A WRIT, 
 
 sheriff not liable to an action for not making, 118. 
 by whom made, 87. 
 when necessary, unless ruled, 81. 
 by whom and when ruled, 81, 83. 
 how and when to be made, 85, 87. 
 form of, 88. 
 
 sheriff's name must be attached to, 89. 
 must be certain, 89, 
 must be a full answer, 90. 
 must not falsify the record, 91. 
 how aided, 91, 92. 
 
 when the court will allow the sheriff to amend, 92. 
 how far conclusive, 94. 
 
 when sheriff and his officers are concluded by, 95. 
 of privilege, 95. 
 tarde, 95. 
 rescue, 96. 
 languidus, 96. 
 viunduvi ballivo, 98. 
 insufficient, consequences of, 99. 
 For returns to particular writs, see under the head of each writ.
 
 INDEX. 573 
 
 REVENUE, QUEEN'S, sheriff collector of, vlrtule officii, 3, 349 ct seg. 
 
 REVERSION, extendible on elegit, 308. 
 
 RIGHT, WRIT OF. See Real Actions. 
 
 ROLL, GREAT, 
 
 nature of, 352. 
 
 how executed, 353. 
 
 form of warrant on, and return to, 491, 492. 
 
 RULE TO RETURN THE WRIT, 
 
 when sheriff should make his return, 81. 
 who may rule him, and when, 81, 82, 167. 
 when the sheriff cannot be ruled, 33. 
 nature of, 84. 
 direction of, 84. 
 service of, 84. 
 
 attachment on, when granted, 85, 86. 
 when the old sheriff may be ruled, 82. 
 
 RULE TO BRING IN THE BODY, 
 
 nature and object of, 169. 
 
 when the sheriff catniot be ruled, 170. 
 
 when the late sheriff should be ruled, 171. 
 
 in the counties palatine, 171. 
 
 service of, requisite, 84, 171. 
 
 how complied with, 171, 172. 
 
 contempt for not com])lying with, 172. 
 
 attachment for not obeying, 173. 
 
 attachment, when set aside for irregularity, 174. 
 
 for laches, 174. 
 regular attachment, when set aside, 1 76. 
 affidavit required in setting aside, 177. 
 extent of liability of sheriff on attachment, 178. 
 
 S. 
 SAILOR. See Seamen. 
 
 SCIRE FACIAS, 
 
 in what cases necessary, 242, n. («), 319. 
 
 not necessary to warrant elegit after the year, 305, n. (6). 
 
 On port bonds, how executed and returned, 355. 
 
 forms of warrant, and summons on, and return to, 495, 496. 
 
 in ordinary cases, how executed, 453. 
 See forms of warrants and returns in, 495, 496, 497. 
 
 SCIRE FECI, form of return of, 495. 
 
 SCIRE FIERI INQUIRY, 
 
 nature and object of, 293. 
 
 form of return, and inquisition on, 481. 
 
 SEAMEN, 
 
 privilege from arrest, 141. 
 
 if arrested, to be sent on board of ship, 141, 142. 
 
 SECURITY. See Indemnity and Agreement. 
 
 SEQUESTRATION, 294, 295.
 
 574 INDEX. 
 
 SESSIONS, 
 
 of the precept to summon, 393. 
 
 return thereto, how made, 394. 
 
 slicriff's duty tlicreon, 393. 
 
 summoning jurors to serve at, 393. 
 
 sheriff to receive all fines, and pay justices' wages, 394. 
 
 sheriff, how to levy fines, &c., estreated at, 394, 395. 
 
 return of fines levied, 39G. 
 
 penalty for not levying. Sec, 398. 
 
 may fine bailiff of liberty for not obeying mandate, Gl. 
 
 SET-OFF, evidence of, not allowed on writ of inquiry, 328. 
 
 SETTING ASIDE ATTACHMENT, 
 
 for irregularity, 174. 
 
 for laches of plaintiff, 174. 
 
 when regular, on what terms, 17G. 
 
 SETTING ASIDE THE RULE TO RETURN THE WRIT, 83. 
 
 SHERIFF, OFFICE OF. See Office. 
 duties of, in general, 2, 3. 
 local limits of authority, 3. 
 qualification of, 4. 
 exemption from, 4. 
 punishment for not sei'ving, 6. 
 residence of, G. 
 
 not to serve above one year, 6. 
 office, how determined, 7. 
 how and when elected, 9. 
 Of Durham, how appointed, II. 
 Of Wales, how appointed, 11. 
 Of Westmoreland, how appointed, 11. 
 
 Of London and Middlesex, 12. See London and Middlesex. 
 warrant of appointment, 15. 
 oaths to be taken by, 17. 
 transfer of office of, 21—23. 
 
 his duties in return of writs, &c. See Execution, Return, and 
 other heads. 
 
 SHERIFF'S OFFICERS. See Bailiffs, Under-siieuiff. 
 what are, and when to be appointed, 28 et seq. 
 
 SOLDIERS, when privileged from arrest, 141. 
 
 SOUTH W ARK, direction of process to, 65. 
 
 STAMPS, 
 
 no longer requii-ed on bail-bond or assignment thereof, 154. 
 or on replevin bond, or assignment, 418, n. (/n). 
 
 STAYING PROCEEDINGS— on bail-bond, 164—167. 
 
 SUMMONS, 
 
 In real actions, when it lies, 336. 
 
 how executed, 336. 
 In county-court, when it lies, 407, 
 
 forms of warrants on, and summons on, 534, et seq. 
 
 SUMMONS OF THE GREEN WAX— how executed, 353. 
 SUMMONS OF THE PIPE-how executed, 353.
 
 INDEX. 575 
 
 SUNDAY, 
 
 civil process cannot be executed on, 79, 80. 
 sheriff trespasser for so doing, 80, 81. 
 
 SUPERSEDEAS, 
 
 when sheriff should make a return of, 292. 
 
 liable to action for returning nulla bona instead of, 292. 
 
 TAXES — one year's taxes to be paid out of money levied on execution, 
 279. 
 
 TENANT'S crops taken on Ji. fa., how to be disposed of, 254, 255. 
 
 TERM OF YEARS, 
 
 may be taken on fi-Ju. 251, 252. 
 
 how sold, 252. 
 
 how extended on elegit, 308. 
 
 TESTE OF THE WRIT, 
 
 when goods bound by, 246. 
 
 in case of the crown, 248, 362, 363, 370. 
 
 TRANSFER OF THE OFFICE OF SHERIFF, 
 writs and prisoners to be assigned, 22, 23, 24. 
 officers to be appointed, and security given on, 28. 
 
 TRESPASS, 
 
 action of, ogainxt sheriff, 
 
 for taking defendant before delivery of writ, 72, 119. 
 
 for breaking open doors, 75, 121. 
 
 for taking defendant out of county, 74, 121. 
 
 after return of writ, 78, 121. 
 
 for executing writ on Sunda}', 79. 
 
 in case of misnomer of defendant, 70, 119. 
 
 taking goods of A. instead of B., 120, 302. 
 
 for taking goods on county-court execution, 295. 
 
 sheriff cannot be liable to, by relation, 120, 302. 
 
 justification of sheriff to, 122. 
 
 TRIAL, WRIT OF, 
 
 when issued, 331, 332. 
 
 to whom directed, 333. 
 
 form of, 333. 
 
 when and how executed, 333. 
 
 jury, 334. 
 
 return to, 334. 
 
 new trial, &c. 334. 
 
 fees on, 105, 335. 
 
 TROVER, ^ , 
 
 when it lies against sheriff, 120, 303. 
 when by sheriff, 302. 
 
 TRUST, 
 
 property, cannot be taken on fi. fa. 256, 259. 
 lands held in, extendible on elegit, 306, 309.
 
 576 INDEX, 
 
 TURN OVER. * 
 
 of writs and prisoners, from old to new sheriff, how made, 22, 
 23, 24. 
 
 V. 
 VENDITIONI EXPONAS, 
 
 what, 260, 270. 
 
 how executed and teturned, 270. 
 
 on capids utlfigcUum, 233. 
 
 on extent, 372. 
 
 form of warrant on, 505. 
 
 VENIRE FACIAS, 
 
 to whom directed, 385. 
 how returned, 386. 
 
 VIEW, 
 
 in real actions, writ of, 344. 
 how executed, 344. 
 by jury, 391. 
 
 U. 
 UNDER-SHERIFF, 
 
 antiquity of office of, 32. 
 
 may be an attorney, 33. 
 
 may be for successive years, 33, 34. 
 
 oaths to be taken by, 17, 34. 
 
 power and duty of, 36. 
 
 acts of, how far obligatory on sheriff, 36, 38. 
 
 when, and how, the office of, may be determined, 37. 
 
 continues in office, notwithstanding sheriff's death, 7, 8, 37. 
 
 security between and sheriff, 38. 
 
 form of, 459. 
 
 form of appointment of, 459. 
 
 W. 
 
 WAGES— of justices to be paid by sheriff, 394. 
 
 WALES, SHERIFF OF, 
 
 by whom, when nominated, 11. 
 
 oaths of, 18, 455. 
 
 recognizances of, 455. 
 
 before whom to account, 379. 
 
 in county-court, may award ca. sa., 409. 
 
 WARRANT— of appointment of sheriff, 15. 
 
 WARRANT, SHERIFF'S, 
 what, 71. 
 
 not to be made out before delivery of writ, 72. 
 to arrest, to have day and year therein, 72. 
 to have attorney's name indorsed, 72. 
 to two persons, where one may execute, 72. 
 how officer is to execute, 73. 
 fees thereon, 103.
 
 INDEX. 577 
 
 WARRANT, SHERIFF'S— con^inwed. 
 form of, on bailable capias, 469. 
 on ca. sa., 473. 
 onfi.fa., 477. 
 on elegit, 482. 
 on hab.fac. poss., 485. 
 on extent, 497. 
 
 WRIT, 
 
 to whom directed, 63, 64, 65, 66. 
 
 when sheriff bound to execute, 67, 68, 69. 
 
 when sheriff justified in executing, 67, 68, 69. 
 
 where defendant is misnamed in, 69, 70. 
 
 by whom to be executed, 70. 
 
 of the warrant in, 71, — and see Warrant. 
 
 when door may be broken open to execute, 75 . 
 
 of raising the posse comitatiis to execute, 73. 
 
 where execution of, may be done, 74. 
 
 at what time to be executed, 77. 
 
 cannot be executed on Sunday, 79. 
 
 of the rule to return, when it may be taken out, 81, 82. 
 
 when set aside, 83. 
 
 attachment for not returning, when granted, 85, 86. 
 
 return to, how made, 87, et seq. — and see Return. 
 
 fees for executing, 103, etseq., — {and see the heads of Particular 
 
 Writs and Poundage.) 
 actions against sheriff in respect of the execution of, 117, et seq. 
 
 WRIT OF INQUIRY. See Inquiry, Writ of. 
 
 WRIT OF TRIAL. 5ee Trial, Writ of.
 
 LONDON: 
 
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 BELL YARD, TEMPLE BAR. 
 
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