Jurisdictions, Part 177
Here follow certain Caſes of the Common Law, upon the Returnes aforeſaid, and others.
BEcauſe Juſtices (to whoſe Duty it belongeth, Weſt. 2. cap. 35.to adminiſter Juſtice to every one before them complaining) are oftentimes hindered, ſo that they cannot in due manner execute their Office; by this that Sheriffs do not return their Original and judicial Writs, and likewiſe return falſe Anſwers.
The Lord the King provideth, Falſe Return.that thoſe which fear the malice of the Sheriff, ſhould deliver their Writs in the full County Court, or in the other County Court, where there is a gathering of the Kings Money, and let there be a Billet taken of the Sheriff preſent, or of the under-Sheriff, in which Billet there ſhall be contained the names of the Plaintiff and Defendant, and adjoyned to the Billet ſealed by the Sheriff, or under-Sheriff, in witneſſe thereof, and let there be mention of the Delivery of this Writ.
And it gives remedy, Tarde.if the Sheriff will not ſeal the Billet: by this Statute remedy is given if the Sheriff return Tarde, Mandavi Balivo.where he hath ſufficient time to ſerve the Writ, and where he returnes (I have commanded the Bailiff of the Liberty) where it is no Liberty; and this Statute gives (you ſhall not omit for any Liberty) and gives Averment againſt the Returne of the Sheriff, Averment,if he return to little Iſſues, and gives (that he ſhould deliver Corn in the Grange, and all Moveables (beſides, Equituram, Indumenta & utenſilia domus) contained under the name of Iſſues; and the Statute gives (Poſſe Comitatus) See the Statute of 1 Ed. 3. chap. 6.
The Sheriff by the common Law is the Preſerver of the Peace, Authority of the Sheriff.and hath the Cuſtody of the County for the time that he is Sheriff, and may cauſe the party to finde Surety, if any require that, and every Obligation which he takes to keep the Peace, ſhall be taken a Recognizance in Law, and ſpecially when this is certified by Certio…are in the Chancery. But Pleas before him in the County or Hundred are not of Record, for theſe are by reaſon of courſe, and this taking for Peace, is by reaſon of his Office; Fitzh. 81. D.
If the Sheriff return upon a Diſtringas Juratores, Appearance.no manner of Iſſues, and a full Jury appears and pleads, this is no Error, for the King hath no loſſe, and the Iſſues are for the King, which he ſhall not have if the full Jury appear, 5 H. 7. f. 8.
Alſo if the Sheriff return Scire feci, upon Fine, or Judgement, and no mention is made of the Summoners and Viewers, and the party appear and pleads, it is no Error, and if upon the Grand Cape there be not returned the Summoners and Viewers, yet if the party appear, and pleads, it is no Error, 3 H. 7. f. 14. this Return was amended, and the Plaintiff recovers. See 8 H. 5. f. 2. B.
Scire facias is returned Scire feci, by J.S. and J.D. and though the Return be not (by good and lawfull men) as it ought, if the party appear it is a good Return, and may be amended, 33 H. 6. f. 35. 44 Ed. 3. f. 16. & 8 H. 6. f. 27.
If the Sheriff attach a Cow, Attachment.the property is not out of the party till the Day of Return, that he make Default, and if at the Day of the Return he make Default, the Sheriff may take that as forfeited to the King, though he have left that before with the party, 9 H. 7. B. Table Dormant, and ſuch things which are fixed to the Free-hold cannot be attached, 21 H. 7. f. 26.
Annuity, the Sheriff returns (I have nothing in my Bailiwick by which he can be attached) where it ſhould be (by which he can be ſummoned) and though it were in the time of another Sheriff, Amendment.it was amended, for the Cout may amend a miſtake of the Clerks, and alſo of the Return of the Sheriff, 33 H. 6. f. 47.
Upon a Diſtringas Juratores, the Sheriff in his Return leaves out four Names which were in the Venire facias, and the Sheriff was examined, and ſaith, that they were diſtrained, and for that the Returne was amended, 37 H. 6. f. 12. 22 H. 6. f. 45.
Appeal upon Diſtringas Juratores, where there were Knights and Eſquires which were in the Writ, there was returned but eight pence upon every Juror, and the Sheriff had been amerced, unleſſe he be there preſent, and amend that, and ſets upon every Juror two ſhillings, 2 R. 3. fol. 13.
Attaint at the Diſtringas Juratores, the Sheriff returns Iſſues upon J. Burton, where there is no ſuch of the Jury, but J. Bormſtone, and it was amended, 2 H. 5. f. 8.
The Sheriff upon a Capias returns Non inveni, where he ought to return Non eſt inventus, and the party was outlawed, and this was aſſigned for Error, and awarded Error, and ſhall not be amended, 9 H. 5. f. 10.
One was outlawed, and Proclamari feci of that was returned, that I made be proclaimed, that he ſhould deliver himſelf to the Sheriffs of London, where the Writ was the Sherif of Kent, and this Outlary was reverſed by Error, and ſhall not be amended, 27 H. 8. f. 34.
One was outlawed, and the Exigent was returned, at my County Court, held at the Caſtle of Oxford, he was firſt called, and becauſe it was not in what County, it was Error, and ſhall not be amended, 21 H. 7. f. 34.
One was returned outlawed, and for that, that it did not appear that it was by the Judgement of the Coroners, it was reverſed without Writ of Error, and ſhall not be amended, 21 H. 7. f. 33.
The Sherif returns Scire feci J. A. Clio, where it ſhould be Clico, and was amended, 7 H. 6. f. 1.
Where the Sherif upon a Diſtringas returnes to ſmall Iſſues, he ſhall amend the Return, 27 H. 8. f. 3.
Proceſs againſt a Voucher, Averment.the Sherif returns the Vouchee dead, the Demandant may aver, that he is alive by the Statute of 14 Ed. 3. chap. 10. Vouch. 8. And there held, that a man ſhall not have a direct Averment againſt the Return of the Sheriff, unleſſe that his perſon is to be charged, or his Inheritance for ever to be loſt, and that by the ſame Law he cannot have remedy to ſave the ſame Inheritance, 40 Ed. 3. f. 6.
Debt againſt two, the Sheriff returns upon the Capias, I have taken their Bodies, and have them before you; and now one comes and ſaith, that his Companion is dead and had it, for that the other cannot gainſay it, 50 Ed. 3. f. 7.
By the ſtatute of Weſtm. 2. before ſaid upon a Diſtringas, one may aver that the Sherif hath returned to ſmall Iſſues; and by this Book the Sherif ought to return in Iſſues ſo much of Rent as the Defendant receives the Day of the Writ purchaſed, untill the Day of the Return of it, 27 H. 8. f. 3.
Where the Sherif returns to ſmall Iſſues upon a Diſtringas, one may aver that they are to ſmall, but ſome ſeem, that if he return to ſmall upon a diſtringas Juratores, it is ont of the Statute, 10 H. 7. f. 11. Debt, the Sheriff returns upon the Diſtringas twenty pence upon the Defendant, and averment was, that the Shetiff might have returned, mean, between the writ delivered, and the return of that 100 s. and the writ was awarded to the Juſtices of Aſſiſe to inquire of that, 20 H. 6. fol. 26.
Where the Sheriff returns one out-lawed, he cannot aver that he was called but three or four times. But in appeale he may have the averment, 10 H. 7. f. 22.
In Re-diſſeifin, he cannot aver that the Sheriff did not go to the place, for he is Judg, and alſo one out-lawed cannot aver that he was not the fifth time called, 10 H. 7.28.
Treſpaſſe upon (Pone) goods were returned attached, and when the Defendant appeared, he had a Writ to the Sheriff to deliver to him again the Goods: And the Sheriff returns that he hath redelivered, the Defendant cannot averr the contrary, the ſame Law of a return of a ſeiſin in Dower, one cannot have an averment to the contrary, for the Sheriff is Officer, to whom credit ſhall be given, which cannot have averment to the contrary. But where one is without remedy, and to be diſ-inherited, it is otherwiſe, as if the Sheriff in a Precipe againſt one, return that he is dead, the Demandant may aver that he is alive, and may ſay not attached, by fifteen daies, which is no direct averment: But upon an Habere facias ſeſinam.
Where the Sherif returns, I have delivered ſeiſin, he cannot aver the contrary, 3 Ed. 4. fol. 20.
One cannot have direct averrment againſt return of the Sherif in the ſame action, but in another he may. As in Debt againſt a Bailif of a Franchiſe, for an eſcape of one, return by the Sherif that he hath taken him by a Warrant to him directed, upon a Capias ad ſatisfaciendum, he may now in this action of Debt aver, that no ſuch Warrant was to him directed. And in Aſſiſe not attached by fifteen dayes he may averr. And in a Precipe that he was not ſummoned according to the Law, is a good averment in the ſame Action, but not, not attached, or not ſummoned, 5 Ed. 4. f. 1.
A Writ of Deceit is returned by the Sherif, and the Defendant averrs that the ſummoners now returned were not the ſummoners in Precipe, and he cannot aver that Averment againſt the Return of the ſherif, 5 Ed. 4. f 7. & 33 H. 6. f. 11. Markham, accordingly.
The ſherif returnes, I have commanded the Bailif of the Liberty of N. which ſo anſwers, that at another time the Defendant was committed to the next Gaol by Auditors upon an Account for Arrerages, and that he being Bailif of that Goal, carried him to Priſon, and he came in upon a Cepi Corpus, and ſaith, that no ſuch Account, and ſhall have that Averment, notwithſtanding the Return of the ſheriff, 18 Ed. 4. f. 5.
One ſues a Libertate probanda, to recover Nativo habendo, and the ſherif returnes, that no Nativo habendo was delivered unto him, and the other averrs contrary, and may, 18 Ed. 4. f. 7.
Upon a Venire facias, the ſherif returned four and twenty Jurors, and upon the Habeas Corpora, he returned that 12. of them were dead, the Plaintif ſhall have Averment, that they are alive againſt the Return, 20 Ed. 4. f. 11.
The Plaintif praies, that the Defendant in Replegiare, wage Deliverance, the Defendant ſaith, that they died in an open Pound, in default of the Plaintif, and prayed a writ to the ſherif, Si conſtare poterit, and if the Sherif return upon that writ, that they are dead, yet he may aver the contrary, and have a ſicut alias, 30 H. 6.2.
Where the Sherif returns (I have commanded the Bailif of the Liberty of the Archbiſhop of York) which returns ſummons, the Defendant cannot aver, that the Land is within the Franchiſe of Richmond, 34 H. 6. f. 3.
The ſherif returnes upon an Exigent, that four times called, and not withſtanding Averment was taken, that he was outlawed, and this was certified by the Coroners, and for that the ſherif was amerced to fifty Markes, 36 H. 6. f. 24.
Where the ſherif upon a Capias returnes (He is not found) one cannot have an Averment againſt this Return, 2 H. 4 f. 15.
One may have an Averment in another Action, againſt the Return of the Sheriff, as in Covenant, the Sheriff returns him warned, yet in Detinue he may aver the contrary, 11 H. 4. f. 47.
Where upon a Corpus cum cauſa, out of the common Bench, it is returned, that he is bound to the Peace, which is for the King, and notwithſtanding that it be falſe, he cannot have an Averment in this Writ to the contrary, 9 H. 6. f. 44.
One outlawed reverſes it by Error, and he hath a Writ to reſtore his Goods, which he took, time of the Outlary, directed to John Bailif of Weſtminſter, and could not return that he is not Bailiff, but he ought to anſwer to the Goods, whether he had them or not, and how they are waſted in his Poſſeſſion, 6 H. 7. f. 9.
The Sherif or Bailif errant, ſworn and known, may arreſt one without ſhewing to him a Warrant, contrary, of a Servant of the Sherif, or other Bailif which is not ſworn and known, 8 Ed. 4. f. 14.
Where the Sherif returnes upon a Fieri facias, Clerk.that he is a Clerk beneficed, not having any Lay Fee, there ſhall go a Writ to the Biſhop to ſequeſter his Benefice, 13 H. 4. f. the laſt. See 32 H. 6. f. 13.2 Ed. 4. f. 1. & 21 H. 6. f. 20.
The Ordinary ſues a Writ of Annuity againſt one, and the Ordinary himſelf returnes, that he is a Clerk beneficed, having no Lay Fee; and held that a Venire facies Clericum ſhall go to the Metropolitan, for that the Plaintif is Ordinary, 34 H. 6. f. 32.
Return, Dutchy.that I commanded the Bailif of the Liberty of the Dutchy of Lancaſter, though that the Dutchy hath no capacity, it is good, for that, that there were ancient Preſidents of it. 33 H. 6. f. 22.
Upon a Capias, Church.the Sherif returnes, that the party is a Verger in the Church at Salisbury, and dwels within the precinct of the Church, and being a Sanctuary, he returnes for that, Non eſt inventus, and for that the Return is not good, for he may ſerve that Proceſs in the Church, 6 H. 4. f. 3.
2 R. 3. C. the laſt. Prohibited upon pain of Impriſonment and Fine, that none arreſt any perſon of holy Church, when he is d…ing Divine Service.
Dower, the Demandant recovers by default, after default, Inqueſt.and the Demandant ſaith, that her Husband died ſeiſed, and prayes her Damages, and a Writ went out to the Sheriff to inquire of Damages, and the Sheriff returns that the Jury found no Damages, and by Thorp, the Sheriff ſhall not be amerced; but where he returnes a writ ill of himſelf, in this caſe he hath returned by the Oath of Twelve, by which he was not amerced, 44 E. 3. f. 8.
Debt againſt Executors, which plead fully adminiſtred, and found that they have Aſſets, and the Sheriff returnes the Fieri facias, I have commanded the Bailiff of the Liberty of Kingſtone, which gave me anſwer, that the Executors aforeſaid have not any Goods, the which is contrary to the Verdict, and adjudged that the return was not good, for he cannot return a thing which is contrary to that which is found, 3 H. 7. f. 11. & 5 H. 7. f. 27. accordingly.
Where the parties admit one ſuch a Viſne, though there be no ſuch the Sherif cannot return that there is no ſuch but ſhall make the Pannell of the Body of the County, 37 H. 6. f. 12.
Appeal, the Sherif returnes the Jury of the Viſne of D. and yet the new Sherif returnes the Diſtreſſe, that there is no ſuch Viſne, and may, 3 H. 6. f. 58.
VVhere the Father is condemned, Falſe Returnes.and upon the Exigent upon a Capias to ſatisfie, the Sherif returnes, that he delivered up himſelf, and it is his Son that came, and this was ſo averred, and found the Son, and the Sherif was amerced, 7 H. 4. f. 13.
VVhere the Sherif makes falſe Returne, as if he return, I have taken the Body, upon a Capias to ſatisfie, and hath him not, he ſhall have his remedy by a VVrit out of the Chancery, or upon his Account in the Exchequer, and not here, 7 H. 4. f 32.
If a Felon (…n going to Execution) be reſcued from the Sherif, if that be preſented before Juſtices of Peace, Felony.it is Felony; otherwiſe it is, if that come in by return of the Sherif, 6 H. 7. f. 12. & 1 H. 7. f. 6. the ſame.
Upon a Fieri facias, the Sherif returnes, Fieri facias.I have done Execution at the Day within contained, and at the Day hath not the Money, and for that goes a Scire facias to the new Sherif againſt him, to know why he ſhall not have Execution, 9 Ed. 4. f. 3.
The ſherif which broke the Door of the Houſe to make Execution upon Fieri fac. ſhall be puniſhed, as Treſpaſs lies againſt him, but not for taking the Goods, 18 Ed. 4. f. 4.
The ſherif returnes upon a Fieri facias, againſt Executors, that the Executors have ſold all the Goods of the Dead, before the VVrit purchaſed, and have taken Money, and other Goods for the ſame Goods; and for that he was amerced, for he ought to have made Execution of Goods amounting to the value, notwithſtanding the Sale, 14 H. 4. f. 13.
The ſherif returnes upon a Fieri facias againſt Executors, that they have nothing after the coming of the Writ, as to him any way doth appear, and was amerced, for he ought to return directly, that he hath nothing; but he may return, that they are conveyed away, and upon that Execution ſhal be of their proper Goods, and he cannot return, He is not to be found, as he can underſtand, 9 H. 6. f. 57.
By Hank, if a Fieri facias go out, and the ſherif levy the Money, & return no VVrit, the party may ſue Sicut alias, if he will, or he may have a writ againſt the the ſherif, to have the Money here; inquire what VVrit that is, but by Thirn, it is duty to receive by party, and the Fieri facias is, that thoſe Moneys you ſhall have here, and they ſhall be brought into the Court in diſcharge of the Defendant, and the ſherif is not Debtor by ſimply ſaying, for that is not upon Record that he hath levied them, and ſo the Defendant is Debtor, and not the ſherif, yet ſome ſay, if the ſherif levy the Money by Fieri fac. & payes them not to the party Plaintif, he ſhall have an Account againſt the ſherif, 11 H. 4. f. 57. See 2 H. 7. f. 22. by King. Treſpaſs lies againſt the ſherif for levying the ſum, and not returning the writ.
Till the Fieri facias be executed, the Money ſhall not be intended paid, and this is not executed, till it be returned by the ſheriff, 20 H. 6. f. 25.
Scire fac. to have Execution of a Judgement, the Def. ſaith, that before this time the ſherif by Fieri facias did levy the ſumm, and though the Def. did not ſay, that the ſherif delivered the money to the Plaintif, nor that the VVrit was returned, this is adjudged a good Bar, & for that the Plaintif ſaith, that the ſherif hath not levied it ready, &c. 21 H. 6.5.
Upon a Fieri facias, the ſherif returnes, that he took Goods to the value of ten pounds, for which he found no Buyer, by which iſſued to the new Sherif, a Venditione exponend. which returned, that his Predeceſſor took no Goods, therefore, &c. By which iſſued a Diſtreſſe to the late Sherif, that the Goods that were ſet to ſale he ſhould bring in, 34 H. 6. f. 39.
It is Error where he is outlawed, and the Exigent returned, at my County held at Ilcheſter, Incertain, & where not.in the County of Som. for it ought to be at my County Court of Somerſet, held at Ilcheſter, and to recover at the Huſtings, London, where there are two, and is not at which Huſtings, it is not good, 6 H. 7. f. 15. See 11 H. 7. f. 10.
VVhere an Outlary was returned, it ſhall not be amended, where it was returned at my County Court held at the Caſtle of Oxford, and ſaith not in what County, it is not good, 21 H. 7. f. 37.
Upon a Capias, the Sherif returnes, I have taken J.S. and J.D. and doth not ſay, (within named) and it ſeems good, and ſhall be intended, 12 H. 7. f. 18.
A VVrit upon a ſtatute ſtaple iſſued, to take the Body, and to extend the Lands and Goods of him that was bound, and the Sherif returned that, that he had extended the Land, and returned nothing of the Goods, and yet it is good for the Land, which is part of the thing which he ought to do, and not all, 16 H. 7. f. 6.
The Sherif returnes, that by vertue of a Command, I have taken the Body, and that is good, without ſaying, by vertue of a VVrit, for the Sherif may take one in the Hall at Weſtminſter, by commandement of the Juſtices without a VVrit, 16 H. 7. f. 16.
Scire facias, the Sherif returnes, I W.S. do certifie you, and it is not good, but it ought to be, I certifie you Juſtices: but where the Return is Scire feci, J. S. and doth not ſay, the within named, yet for that that, it is further, (as this VVrit in it commands and requires, according to the forme of the VVrit) that is a good Return, 1 H. 6. f. 7.
Premunire, tht Sherif returns, that the Defendant was warned, and for that, that it is not what day, it is not good, for he ought to be warned by two Moneths before the day of the return by the Statute, and that doth not appear, and for that it is not good, 42 Ed. 3.7. and 39 Edw. 3.7.
Aſſiſe where the writ was ill returned, and that uncertain, there ſhall Iſſue a Sicut alias, 46 Ed. 3. f. 18.
One out-Lawed, and Proclami feci was returned, that he had rendred himſelf Priſoner to the Sherif of London, where it ſhould have been Rent. And the Out-lawry was for that reverſed by Errour, 27 H. 8.34.
Where the Sherif returns Nihil, or is not to be found, as it can appear to him, he ſhall be amerced, for he ought to take notice, 9 H. 6.57.
Where the Sherif returns (I have commanded the Bailif of the Liberty) of D. and for that, that he hath not returned to what Perſon it is not good, 9 Ed. 4.20. & 1 H. 6.7, the ſame.
Upon a Capias, the Sherif returns (I have taken the body) and that A. and B. reſcued him, and for that, that it is not where, it is not good, 10 Ed. 4.17
Scire facias to have Execution of an annuity againſt a Parſon, the Sherif returns (that he hath no Goods) notwithſtanding that it was not (nor had at the time of the receit of this writ) yet it ſeems it ſhall be intended, and for that it is good, 2 Ed. 4.1.
Scire facias againſt two ſeverall Tenants, the Sherif returns (Scire feci in manner and form, as this Writ in it commands and requires) and it is good, though it be not returned ſeverally, Scire feci, 2 H. 4.14. See, 37 H. 6.31.
In a Writ to inquire of Waſt, the Sherifreturns that I, took the Inquiſition, Die Sabbati proximo, and for that it is not what Sabbati, it is no good return, 40 Ed. 3.20
Scire facias, to have execution of arrerages of an annuity againſt Lawrence Booth, keeper of our bleſſed Mary Hallers in the Univerſity of Cambridge and Schollers, and the Sherif returns that Scire feci Lawrance Booth, and nothing of the Schollers, and for that the return was not good, and ſo Sicut alias, 34 H. 6 54.
VVhere a VVrit goes to the Coroners, and one returns that he made a Precept to his Servant to arreſt the Defendant, and that he at D. ſuch a day made a Reſcue, this return is not good, for it ſhall be made by both the Coroners, 39 H. 6.42.
Upon Exigent, the Sherif returns, I have cauſed to be proclaimed at ſuch a County Court held ſuch a day, and for that, that it is not what year, it is not good, 27 H. 8.34.
The Sherif returns, he hath nothing, and it is not good, but he ought to return alſo, that he hath not Bailifs, nor a Bailiwick, nor he is not to be found, 26 Booke of Aſſiſes 33.
Attaint, The writ you ſhall diligently inquire, who were the Jurors of the firſt inquiſition, and whether M.B. Knight was one of the petty Jury, and he returned their names, and M.B. was dead, and though he do not return M.B. Knight. It ſhall be extended the ſame, and a good return, 24 book of Aſſiſes 6.
The Sherif upon a Venire facias, returns twelve names only upon the back of the VVrit, and not in the Scedule, and it is not good, but ſhall return twenty foure according to the uſage, 2 H. 7. f. 8.
The Sheriff returns upon a Cap…as, that a Reſcue was made at D. by the command of J.S. and for that, that he doth not return where the command was, it was not good, for the return ſhall be as certain as known, 3 H. 7.11.
VponUpon Pluries, to have a Corody, the Sherif returns that the Biſhop of K. is founder and doth not return the name of that Biſhop that founded it, and for that it is uncertain, 3 H. 7.6.
Admeaſurement of Dower, the Sherif returns that the woman hath more by forty ſhillings per annum, this is no good return, for he ought to return two parts by it ſelf and their values, and the third part by it ſelf and the value thereof, 44 Ed. 3.11.
The Sherif of London upon a Nativo habendo, returns, London.that if a Villaine remain in London by a year and a day, that he ſhall not be drawn out, and that is a good return, and it is ſaid, that return, that Attaint doth not lie in London, is a good return. Inquire, 7 H. 6.34.
In London every of the Sherifs may arreſt a man, and yet the Return ſhall be made in the name of both the Sherifs, 39 H. 6. f. 43.
VVhere the Sherif returns (I have commanded the Bailif of the liberty) and doth not return, for that, that he hath nothing, within my bailiwick and was amerced, 47 Ed. 3.2.
Where the Sherif returns (I have commanded the bailif of the liberty) where that liberty is not inrolled in the Exchequer, it is taken as a diſ-inheriting of the King, 2 H. Mandav. Balivo.4.5. and 11 Ed. 4.6. the ſame.
The Sheriff returns, I have commanded the Bailif of the liberty, which anſwers me that he hath taken the body, and hath not the body there, it is doubted whether the Bailiff ſhall be amerced or the Sherif, 2 H. 4.16 Inquire, ſee, 11 H. 4. fol. 41. that the Bailiff ſhall be amerced and not the Sheriff, 5 Ed. 4.6. The ſame.
Where the Sheriff returns, I have commanded the Bailiff of the Liberty, which anſwers me, that he hath taken the body and notwithſtanding hath not the Body, the Sherif was amerced, and a Diſtringas awarded, to diſtrain the Bailiff to bring in the body, &c. 47 Ed. 3.25. But, 14 Ed. 4.1. There ſhall go out a Diſtringas Ballivum to bring in the Body, and, 36 H. 6.1. the ſame
The ſherif returns I have commanded the Bailif of the Liberty, which anſwers me, and returns but nine of the Pannell, the ſherif ſhall be amerced, and not the Bailif, for the return in Law is not good, 8 H. 6.56.
The ſherif upon a Grand Cape returns (I have commanded the Bailif of the Liberty,) which anſwers me, that he hath taken the Land into the Kings hands, and doth not return that he hath ſummoned the Tenant, and held that the return in Law is not good, and for that the Sherift ſhall be amerced, 4. H. 6.25.
If the Sherif upon a Capias makes a command to the Bailif to arreſt one, and he takes him, and the ſherif doth not return the Writ, by Frowick and Brian, the Bailif ſhall not be puniſhed but the ſherif, 10 H. 7.17.
Falſe Impriſonment againſt a Bailif, which ſaith that a Capias came to the ſherif and the ſherif commanded him being a travailing Bailif, that he ſhould take the body of the plaintif, which he did ſo, the Plaintif ſaith that the Writ was not returned. And by Kingſmill, though the Bailif were Fined, it ſhall be accounted all wrong in him, for that, that the Writ is not returned, 20 H. 7.13.
Contrary by Rede, and Littleton, ſaith, that Treſpaſſe doth not lie againſt a ſervant in this caſe, 18 Ed. 4.10.
If the ſherif himſelf juſtifie in Treſpaſſe the arreſt of one by Capias to him directed, he ought to ſhew that he hath returned the writ, for it is conditionall (ſo that you have his body here, &c. 3 H. 7.3.
Where the Sherif ſerves a Fieri facias, and levies the ſum, and doth not return the Writ, the party may have an action of treſpaſs againſt him for that levy, 21 H. 7.22. by Kingſmill.
The ſame Law is, if a Bailiff by the command of the Sheriff arreſt a man, and do not bring him to the Sheriff, falſe impriſonment lies againſt him.
Capias iſſued to the Sherif where there is no Orignall, and he arreſts the party and returns the Writ, treſpaſſe doth not lie againſt him.
If the Servant of the Sheriffe arreſt one by a Precept made out of a Capias, and return his Precept to the Sherif, and the Sheriffe do not return his Capias, it ſeems, that falſe impriſonment lies againſt the Servant.
But where the Bailiff of a Liberty arreſts one by a Precept out of a Capias, made to him by the Sheriffe, and the Sheriffe do no not return the Capias, it ſeems that falle impriſonment lies againſt the Sheriffe, and not againſt the Bailiffe.
If the Sheriffe make a Precept to his Servant, or to another to be a Bailiffe (if he be not a Bailiffe of the Franchiſe, which is not his Servant) and they take party, and the Sheriffe doth not return the Writ, the Bailiffe is a Treſpaſſer, unleſſe he be Bailiffe of the Franchiſe, though the Bailiffe return his Precept to the Sheriffe ſerved, 8 Ed. 4.18. and 13 H. 7.2. the ſame, See 18 Ed. 4.9. and 28 Book of Aſſiſe 47.
Debt againſt an Executor, which pleads nothing in his hands, and found Aſſets, and the ſheriffe returns upon a Fieri facias, I have commanded the Bailiffe of the Liberty, &c. which anſwereth me that he hath no goods of the Teſtators, and this Return is not good, for it is contrary to the Verdict and triall, and yet the Sheriffe ſhall be amerced, and not the Bailiffe, for that, that the Return in Law is not good, and the Sheriffe ought to have knowledge of the Law, 5 H. 7.27.
But for falſe Return, the Bailiffe ſhall be amerced. 3 H. 7 11. the ſame.
VVhere the ſheriffe returns I have commanded the Bailiffe of the Liberty, which hath given me no anſwer, there ſhall go out a Non omittas.
The ſheriffe Returns, I have commanded the Bailiffe of the Liberty, and for that, he doth not return (for that) be hath nothing within the Liberty, he was amerced, 47 Ed. 3.2.
The ſheriffe returns, I have commanded the Bailiffe of the Liberty, and it is not to what perſon the Liberty is, and for that by Pigot it is not good, 9 Ed 4.20. contrary by Dauby, ſee 1 H. 6.7.
The Sheriffe returns, I have commanded the Bailiffe of the Liberty of the Franchiſe of the Earl of Shrewsbury, and for that, that it is not, (for that) the Lands were within the Liberty, it was challenged, and the return is not good, for that, that it is not of what Liberty, if he have more, and for that he ought to return, I have commanded the Bailiffe of the Liberty, of the Franchiſe, of the Earl of Shrewsbury of Scarſdale, or his Liberty of high Peak, &c. which hath full return, and execution of all the Writs in the ſaid Liberty, to whom it belongeth totally to make execution of this writ, which truly Bailiffe ſo anſwereth me, &c. 1 H. 6.7. 9 H. 6.33.
Upon a VVrit to inquire of VVaſt, the Sheriffe returns, I have commanded the Bailiffe of the Liberty, which hath given me no anſwer, and the ſheriffe was amerced, for he ought to enter, and go to the place waſted, for that is the ſtatute, and for that the Franchiſe ſhall not hold place, 11 H. 4.80.
If the ſheriffe enter into any Liberty, and execute Proceſſe there, without a (non omittas) the Lord of the Liberty ſhall have a VVrit of Treſpaſſe upon the Caſe againſt him, Fitzh. 95 B.
The ſheriffe returns upon the Exigent, that the Defendant is dead, and cannot, by Priſot, and alſo upon a Capias he cannot return that, 32 H. 6.33.
The ſherif returns upo a Scire facias againſt an Abbot, that he is depoſed, by which he cannot warn him, and it is good, for that is a death, 1 H. 6.2. and 2 H. 6.5. the ſame.
The ſherif returns upon an Exigent that the defendant is dead, and it is no good Return, for he ought but to demand him, and if he appear to take him, 10 H 4.5.
Upon Pluries Repleg. The ſherif returns that the beaſts are dead, and this is a good Return, and he need not return that the beaſts are driven away, 32 H. 6.32.
In Attaint, the ſherif cannot return that the Defendant is dead, for there are not any words in the VVrit to warn the Defendant, 18 H. 8.5.
Upon a Habeas corpus Jurat. the ſherif returns that four are dead, and may, and upon a Diſtringas thereof, he returns that other two are dead, and may, 10 Ed. 4.11.
Upon an Habere facias Seiſinam, and upon the Grand Cape, and upon Habere facias viſum, a return that none, came of the part of the complainant, &c. is a good return, 13 H. 4.9.None comes for the Plaintiffe.
Upon a Writ of View, it is a good return, that none came of the part of the complainant, to ſhew him the Land, for the ſherif is not bound to know the Land, 14 H. 6.20.
The ſtatute of York, chap. 5. ſaith, Names of the Sherifthat the ſherif ought to put his proper name to every Return, 8 H. 6. fol. 76.36 H. 6 f. 1. and 9 Ed. 4. f. 19.
VVhere one is outlawed, he may reverſe that by Error, for that in Return of the Alias Capias, the name of the ſherif was omitted, 26 H. 8.4.
Treſpaſſe againſt an Abbot and his Monks, Pledges.the ſherif returns Pledges for the Abbot, and that his Monks have nothing, and that is a good Return, and yet of a Husband and a VVife, Pledges ſhall ſerve both, and he need not return the VVife, Nihil, 48 Ed 3. fol. 26.
Aſſiſe, the ſherif returns he hath found me no Pledges, and the writ was delivered to the ſherif again, and the Plaintif forthwith found Pledges, 2 H. 4.22.
Aſſiſe againſt a Husband and his wife, the wife ſhall be attached by goods of the Husband, for that ſhe is to be brought in by her Husband, 7 H. 6.10.
Upon a Habeas corpora, againſt a Juror, the ſherif cannot return that he hath ſerved part, and the Bailif of the Liberty the other part, but upon a Capias againſt divers, the ſherif may return Cepi corpus of one, and I have commanded the Bailif of the Liberty of another, Part ſerved by the Sheriffe.and it is a good Return, 31. H. 6.13.
The ſherif upon a Habeas corpus with Decem tales, returns that he hath ſerved the Habeas corpus, and to the Decem tales, I have commanded the Bailif of the Liberty, which hath ſerved the reſidue, it is not good Return, 8 H. 4.16.
Diſtringas Juratores, the Sheriff cannot return that he hath diſtrained ſome, and the Bailiff of the Liberty hath ſerved the reſt, 19 H. 6. f. 48.
Upon a Diſtringas with Proclamation upon an Ejectment of Ward, the Sheriff returnes, I have commanded the Bailiff of the Liberty, which anſwers, &c. Iſſues forty pence, and that he himſelf hath made Proclamation, and for that it ſeems that the Sheriff ought to make the Proclamation in the County, and ought to ſerve the reſidue, 2 H. 4. f. 1.
In a Precipe, the Sherif returnes, I have commanded the Bailif of the Liberty, who anſwereth me ſo, &c. a good Return; and alſo that the Bailif takes the Pledges, and for that that he tooke the Pledges, where the Sherif ought, the Sherif was amerced, and Sicat alias was awarded, 14 H. 6. f. 3.
Aſſiſe, the Sherif returnes, that he hath taken Pledges, and that the Bailif of the Liberty hath ſerved the reſidue, and though part be ſerved by the Sherif, and part by the Bailif, it is good; for if the Plaintif do not finde to the Sherif Pledges, he ſhall make no Precept to the Bailif, 21 H. 7. f. 14.
The Sherif by the ſtatute of Weſtminſter, Poſſe Comitatus.the 2. chap. 39. may take, Poſſe Comitatus, to execute Proceſs, and alſo agreed by this Book, that the Bailif may ſo do, for he is in the place of the Sherif, 3 H. 7. f. 1.
Upon a Scire facias againſt a Chaplain upon a Recovery in a Quare impedit, Quare impedit.the Sherif ought not to return, That he is a beneficed Clerk, having no Lay Fee, for that ſhall not be returned, but upon a Diſtringas or Capias in Debt or Treſpaſſe, that is a good Return, and there ſhall go Venire facias Clericum, but here he may be warned by his perſon, 32 H. 6. f. 13.
If the Sherif return that one at D. Reſcous.made a Reſcue, it is good without addition of the party in the Return, and yet Proceſs of Outlary lieth upon that; and where the Sherif returnes the Reſcue to be made at D. he is eſtopt to plead to that Return, over D. and neither D. and none without addition, for he is eſtopt by the Return.
Where the Sheriff upon a Capias returnes, I have taken the Body, and that J. S. and J. D. made a Reſcue, and for that, that in the Return there is not of what place, it is not good, 10 Edw. 4. fol. 17. and 3 H. 7. f. 11. the ſame.
VVhere Tenant for Life, Scire fac.prayes in aid of him in Reverſion, and in Scire facias againſt him, the Sherif may return, that he is warned in the Land in Reverſion, which is in the Land demanded, 45 Ed. 3. f. 26.
One may be warned in Scire facias by his perſon, his Land, or Goods, as it ſeems by 32 H. 6. f. 13.
Scire facias to warn two upon a VVrit of Detinue, the Sherif returnes one warned, and that the other (hath nothing) and held that the Sherif ſhall be amerced, for though that he hath nothing, he ought to have warned him by words, that is his Perſon; but for that that the Return was read, and was (He hath nothing in my County) nor is found in the ſame, it was good, for he cannot warn his Perſon, 1 H. 5. f. 13.
The Sherif returnes upon a Scire facias, againſt a Parſon to have Execution of Arrearages of Annuity, that the Parſon hath reſigned, and that he hath no Goods, and it is good, and may take notice of the Reſignation, 2 Ed. 4. f. 1.
Upon a VVrit of Error iſſued Scire facias, to the Heir and Ter-tenant ſeverally, to come together if they thought fitting, and it was againſt Husband and his VVife, and another perſon, and the Sherif returned, that Scire feci L. de B. & Alice his wife Tenants of ſo much, and R. de H. tenant of ſo much ſeverally, and the Return good, though the Husband and the wife cannot be ſevered, 3 H. 7. f. the laſt.
The Sherif returnes upon a Scire facias, againſt an Abbot that he is depoſed, that he cannot warn him, and this is good, for he is dead, 1 H. 6 f. 2.
The Sherif returnes Scire feci, by A. and B. without ſaying, Good and lawfull men, and the party appears, and good, 8 H. 6. f. 76.
Attaint was returned by the Sherif Nihil, Summons in the Land demanded.and the Return is not good, and ſo Sicut alias, and ſhall be ſummoned in the Land demanded, 42 Ed. 3. f. 19.
Mortdanceſter by two, and one makes default, by which iſſueth a Summons to proſecute together, the Sherif upon this returnes Nihil, and award, that they ſhall be ſummoned in the Land demanded, 44 Ed. 3. f. 27.
Scire facias out of a Fine to execute that, and two make default, and in a Summons to proſecute together, the ſherif upon that returnes Nihil, and ſhall be amerced, for they ſhall be ſummoned in the Land in Demand, 10 H. 6. f. 12.
The ſame Law is, where one hath aid of him in Reverſion and in a ſummons to aid, he ſhall be ſummoned in the Land demanded.
A Writ of Covenant to levy a Fine, the Sheriff returns Nihil, and for that ſhall be amerced, for he ought to have Summoned him in the Lands Demanded, 10 H. 6.13
Where aid was granted, and the Sherif returns that the Prayee hath nothing whereby he may be ſummoned, by which Sicut alias, was awarded in the Land in demand, 23 Ed. 3.37.
Debt againſt John Burton Parſon of D. The Sherif returns at the Pluries diſtringas, that he hath reſigned, and it is a good return, 2 H. 7.10.
Scire facias, againſt an Abbot, and the Sherif returns he is depoſed, and good return: But in Scire facias, againſt a Husband and his Wife, Spirituallthe Sherif cannot return that they are divorced, for that is ſpirituall, whereof he hath no notice, 1 H. 6.2. & 2 H. 6.5. the ſame
Scire facias, againſt the Parſon of D. to have Execution of arrerages of annuity, though the Sherif return that he hath reſigned, and take notice of that, it is a good return, 2 Ed. 4.1.
The Sherif returns upon a Capias, Tarde, and was amerced, 2 H. 4.8.
Right of ward at the Diſtringas with proclamation, the Sherif returns Exitus, and that he cannot proclaim that, for that it came too late, and there ſhall go an Alias, to proclaim that only, and ſhall not return Iſſues, 3 H. 4.6.
In Capias of appeale of Death, Tarde.the Sherif returns, that, that writ came ſo late that, &c. and the return awarded good, 8 H. 4.22.
In Aſſiſe, when the Writ is returned, Tarde, the Clarks do not make Sicut alias, but enter the Writ, and ſend that again to the Sherif to be ſerved, 9 Ed. 4.20.
Forging of Deeds, Diſtringas, with Decem tales, of that was awarded againſt the Jury, and the principle Jury was returned Tarde upon the diſtringas, and the Tales ſerved, and the return was awarded good, for where the Iſſues are to be returned, the Sherif ought to have time to know their Land, but upon a Capias returned Tarde, it is ſaid to be ill, But inquire, becauſe it is uſed, 21 H. 6.51.
The Sherif returns VVrit delivered by Bill according to the Statute of Weſtm. 2. chap. 39. Tarde, and for that, that the Sherif refuſeth to put his ſeale, others put their ſeals according to the ſtatute, and the Plaintif hath a writ to the Juſtices of aſſiſe to inquire of Dammages, 29 Aſs. 58.
Capias, to have Execution againſt an Abbot, or againſt a Biſhop if it be returned, that they have nothing in that County, there ſhall go out Elegit upon the Teſtatum in another County, 26 H. 8 8. and 26 H. 8.17.
VVhere one hath recovered in a Quare impedit, and hath a VVrit to the Biſhop, which refuſeth his Clark. So that he hath a Quare non admiſit, Teſtatum,and proceſs continue to the diſtreſſe againſt the Biſhop, and the ſherif returns that he hath nothing, there goes Diſtringas to the ſherif of London upon the Teſtatum, that he hath no Land there, 3 H. 4.6.
Treſpaſſe againſt a Prior, the ſherif returns that he hath nothing, and how he hath no Land there, he ſhall have proceſs into another County upon a Teſtatum, for a Prior was a name of Dignity, and for that ſhall have proceſs in another County upon Teſtatum, 7. H. 4.1.
VVhere the ſherif returns Nihil, Capias doth not lie againſt a Lady, Peer of the Realme, Earl or Baron. But there ſhall go a Teſtatum in another County, but where they do wrong, as if they eſſoigne, Diſtreſs, and returns that by the Sherif, the Capias lies for the wrong, 11 H. 415.
If the Sheriffe arreſt any, and Reſcue is made, by Baron, Earl, or Duke, if the Sheriffe return the Reſcue, Capias lyes, 1 H. 5 fol. the laſt.
Waſt was made in Reddale, and upon a Writ to inquire of Waſte, the Sheriffe returns, that I have taken an Inquſition at Reddale, and for that it is not at the place waſted, it is no good return, 40 Ed. 3.20. and 27 H. 8.16 the ſame.
Waſte in A.B.C. and D. it is ſaid that a Writ to inquire of Waſte ſhall be returned (that I have come to the Tenements aforeſaid, and the Inquiſition taken at one Town ſhall ſerve for all, 34 H. 6.49.
A. returns upon a Rediſſeiſin or upon a Writ to inquire of Waſte, (that I came to the Town) is not good, but to the place, 11 H. 4.6.
Upon a Writ to inquire of waſte, for that that the Sheriff returns, (I have commanded the Bailiffe of the Liberty, which hath given me no anſwer) he was amerced, for he ought to go to the place waſted, 11 H. 4.80.
Appeal, Viſne.the Sheriffe returns a Jury of the Viſne of D… and the new Sheriffe returns no ſuch Viſne, and may, 3 H. 6. fol. laſt.
Venire facias, Venire facias.was returned by the Sherif, and afterwards the Sherif was diſcharged, and a new Sherif made and at the Diſtringas he returned (Nihil) upon a Juror, and adjudged that he ſhall be amerced, but he may return that the Lands are recovered againſt the Juror, or that the Juror was Tenant for life of J. S. which is dead, or other ſpeciall matter, and ſo (Nihil) 19. H. 6.38.
Where the Parties admit one ſuch (Viſne) where there is no ſuch, the Sherif cannot return, that there is no ſuch (Viſne) but ſhall make the Pannell of the body of the County, 37 H. 6.12.
A (Venire facias) with the Pannell was returned, and none found upon the Roll, but (ſicut alias) awarded and returned, and upon that (Habeas corpora) and Diſtringas, and the Iury found for the Plaintiffe, and it is ſhewed in arreſt of Iudgement, that there was another (Venire facias) with a Pannell, and adiudged that it ſhall not be intended to be there lawfully, but ſhall be taken off the File, for that, that in the Roll the Entry was, ad quem diem Vicecomes non miſit breve, and upon that it was awarded the ſicut alias, 20 H. 6.17.
Though the Venire facias, is Venire facias, twelve free and lawfull men, yet if the Sherif return twelve onelyonly, if he do not amend that, he ſhall be amerced, for the Iuſtices will not alter the ancient Form, for the miſcheif which may come, for if twelve onelyonly be returned he ſhall not have a Iury without a Tales, 2 H. 7.8.
The ſherif returns a Pannell upon Venire facias, and cometh a Bailif of the Fee, and ſhews an Indenture by which he hath returned certain names to the ſherif, and that the ſherif hath returned other names in blemiſhing his return, and prayeth that the Iury be not taken, and it was not allowed, 30 Book of Aſſiſes 5.
Aſſiſe, (Venire facias) was directed to the Coroners, and the Pannell was returned by two Coroners, where there are four, and therefore the (Venire facias) was ſent back again, and after was returned by all foure, 31 Aſſiſe 20.
Venire facias Iſſued to the Sheriff, which returneth, Mandavi in Ballivo libertatis, that to me he ſhould ſend a Pannel, and this is returned, and after goeth Tales to the Sheriff, and he return the Tales, aledging that there were more ſufficient within the Franchiſe, and good return upon this ſpeciall matter, 38 Ed. 3.29.
Debt againſt the ſherif, Sheriffe.and he reurneth that hhimſelf is ſherif, and that he cannot ſummon himſelf, 18 H. 3. and H. 6.77. ſee 9. H. 6 f. 10.
Precipe, (Venire facias) iſſued to the ſherif, and he was outed of his office one month before the return of it, and he ſent the (Venire facias) which was ſerved to the new ſherif, and he returned another Venire facias, and returned that Writ late, and it ſeemeth that the Writ which is ſerved ſhall be 28 Ed. 3.99.
One was out lawed, and Procla mari feci was returned, that he ſhould render himſelf to the ſherif of London, where it ſhould be Kent, and the outlawry was reverſed by error, and for that, that it is in another Term, it ſeemeth that the ſherif ſhall not amerced, 27 H. 8.34.
Debt was brought by I.S. being ſherif, and ſerves the Writ, and it is good, and may ſerve that til a Venire facias 14 H. 6.1.
The ſherif may bring a Writ of debt in the County where he is ſherif, and may ſerve it, and return it, and may find pledges to proſecute in the Chancery, 14. H. 6.19.
Treſpaſs againſt the ſherif and two others, and proceſs was awarded to the Coroners, and the ſherif was found not guilty, and the Plaintif prayed a (Fiere facias) to the ſherif and could not have it, for that the proceſs before was to the Coroners, 2 H. 6 12.
Debt upon a Capias, the ſheriffe returns that he is ſick in Priſon, and yet the Defendant was received to appear, for he hath day by Roll, and the Plaintif was demanded, and did not come, and was non ſuited, 3 H. 6.3.
If the the ſherif return in one Pannel, Johannis D. where it ſhould be Johannes D. yet that is good, for falſe Latin is not materiall in a return, 2 H 4.8.
If the ſherif return upon a Capias, cepi corpus, and hath not the body, he ſhall be amerced, 7 H. 4.11.
The Defendant cannot ſay that the ſherif is cozen to the Plaintif and pray (Venire facias) to to the Coroners, for if it be ſo, he may have his challenge and quaſh the Jury, but the Plaintiffe may pray that 3 H. 7.2. & 5.
Exigent which was delivered of Record was imbezilled, and the Copy of that returned by the ſheriff, and he was amerced for returning of the copy to 30 l. & for imbezilling that 20 l. 3 E. 4.5 Debt upon an Obligation made to the ſheriff, by one let to mainpriſe, and the name of the ſherif is not in the Obligation as ought to be by that ſtatute of 23 H. 6. cap. 10. and the Defendant may ſhew that, and conclude, and ſo not his deed, 7. Ed. 4.5. Every originall writ ſhall be to the ſherif as aſſiſe of an office in the Common place, but proceſſe may be to the keeper of the Pallace, 3 Ed. 4.17. The ſheriff nor his ſervant cannot break a cloſe to make a Replevin where is a gate, unleſſe it be ſtopped, 20 H. 6.30. The ſherif, and the Bailif errant, ſworn and known, may arreſt one without ſhewing him a Warrant, contrary of the ſervant of the ſherif, which is not an office ſworn and known, 8 Ed. 4.14. If the ſherif come to arreſt one, and he flie, he may purſue him, and take him in another County, but not aſſault nor beat him, for that he was not arreſted, but if he were arreſted, & flie into another County with his ſword naked in his hand, he may follow him, & aſſault him, and beat him, and take him, 2 Ed. 4.7. If the ſherif come to arreſt one, and he ſlie into another County, there he may freſhty purſue and arreſt him, 11 Ed. 4.9. The ſherif or officer may break a houſe to take a Felon, but he cannot break a houſe to arreſt one upon a Capias in Debt or Treſpaſſe, 13 Ed. 4.8.
The ſherif upn a Fieri facias cannot break a doore or cheſt to take goods in Execution, for if he doth, Treſpaſſe lieth for the breaking onelyonly, 18. Ed. 4.4.
Treſpaſſe againſt the ſherif for taking of goods, he may iuſtifie for that the Exigent of Felony was awarded to him, and that he took them, and he might iuſtifie for that, though that he doth not ſay, that he accounted to the King, but a Capias ad ſatisfaciendum is conditionall, 3 H. 7.3.
If the Sheriffe attach a Cow, by the attachment, the property of the Cow is not out of the party, till the day that he maketh default: and if at the day he maketh default, he may take that as a forfeit, although he leave it with the party, 9 H. 7.6. and 34. H. 6.53.
Capias for Felony, the Sheriffe returns Cepi corpus, and hath not the body at the day, by which he was amerced a hundred ſhillings for the eſcape, 40 Aſſiſe. 43.
See the ſherif may ſerve a VVrit as it ſeemeth with three hundred men if need be, 3 H. 7.1.