Jurisdictions, Part 121 – Part 122
Officer.
Where your Officer, or Sheriffe ſhall be puniſhed for executing of Proceſſe, as treſpaſſor, and where not, and how he ought to carry hemſelf in executing Proceſſe.
OFficer ſhall be puniſhed in treſpaſſe, that by (Fieri facias) out of any Court, breaks the door of a houſe to do execution, and for that only, & not for taking the goods in execution. 18. Ed. 4. fol. 4.
It is held that an Officer cannot break the cloſe to make a Replegiare where there is a gate, unleſs that that be ſtopt, the ſame Law is of executing Proceſſe out of a Court Baron, 21. H. 6. fol. 30.
Where one is indicted of treſpas, and Capias awarded, or a Commiſſion to take the party indicted, and he ſhuts his gates, there the Officer may break the gates, unleſſe he may otherwiſe come to take him, for this is for the King, otherwiſe it is to execute Proceſſe out of a Court Baron, 27. Book of Aſſiſe, 35.
Where erronious Judgment is given in any Court, the Officer which doth the execution is excuſed. Contrary where the Court gives Judgment of Land, or contract which lieth out of their juriſdiction, for their treſpaſſe or Aſſiſe lies againſt the Officer, 22. Aſſ. 64. Plowden 19….
There is alſo a Diverſity, where in Court Baron Judgment is given, that is void or voidable, for where judgment and execution is there, of a thing whereof they have no juriſdiction, there treſpaſſe lies againſt the Officer for executing it, but if Judgment be there but erronious, and ſo not void, falſe judgment lies, and no treſpaſſe againſt the Officer, Plowdens Com. 394. contrary Law.
Where an Officer by commandment of a Biſhop arreſts one for holding an opinion that he would not pay Tithes, falſe Impriſonment lies.
The ſame Law where a Juſtice of Peace, laies his command upon one out of the Seſſions without other matter, and for that is Impriſoned.
Where one by a Capias out of the Court Baron arreſts one, falſe Impriſonment lies againſt the Officers 10. H. 7. fol. 17.
It ſeems if the Sheriffe arreſt one, by a Capias awarded againſt him, out of the Common Bench, where there is no Originall, yet falſe Impriſonment doth not lie againſt him, 21 H. 7. fol. 22. and 11 H. 4. fol. 36. the ſame, by Hank, i… caſe of the Abbot of Glaſſenbury.
Held that the Sheriffe may arreſt a verger in the Church, or a ſecular man, and ſhall not be puniſhed by treſpaſſe. But by the ſtatute of 1. R. 2. chap. the laſt ſee Pulton title Arreſts. If any arreſt any Miniſter which is doing Divine Service in the Church, Churchyard or other place, he ſhall be Impriſoned and puniſhed, &c.
If an Officer diſtrain or attache the horſe of a Maſter, where the plaint is againſt the ſervant, treſpaſſe lies for the maſter againſt the Officer, for the Officer ought to take notice at his perill whoſe goods he diſtrains or attaches, 13 H. 4. fol. 2.14. H. 4.24. 11 H. 4.90. & Doct. & Student 129.
Where an Officer arreſts another man which is not defendant, or attache goods which are not the defendants, he is a treſpaſſor, if the Plaintiffe ſhew him the party, of goods, and ſaith he is the Defendant or not, 11 H. 4. fol. 90.
It ſeems that the Officer ſhall take notice at his perill whoſe beaſts he repleves, 14. H. 4. fol. 24.
If the Officer reſtrain any Prior, or other Prelate for debe or treſpaſſe when he is in his journey riding, by his horſe upon which he rides, where he may diſtrain other goods, action upon the caſe lies againſt the officer, Quare cum &c. Fitzh. fol. 93. I.
Where the Sheriffe hath a Capias, he may arreſt one without ſhewing it, and ſo may a Bayliffe erant, But the ſervant of a Sheriffe and of another, cannot without ſhewing the Warrant. The ſame Law is of a Bayliff of the Lord or Beadle, which by cuſtome ſerve Attachements or diſtreſſe, They having a command, may ſerve it without ſhewing it. But ſo cannot they do, where they have a command to ſummon Copy-hold Land, or a command in nature of Grand cape, Petit cape, habere facias viſum, or Habere facias ſefinam, 14 H. 7. fol. 9. 21 H. 7. fol. 37. 8 Ed. 4. fol. 14. and 10 Ed. 4. fol. 1.
If the Sheriffe arreſt one by a Capias, and after do not return the Writ, or return (non eſt inventus) falſe Impriſonment lies againſt the Sheriffe. But in Court Baron no Capias ſhall be awarded, yet if the Officer there ſerve an Attachment or diſtreſſe and do not return his precept at the next Court, Treſpaſſe lies againſt the Officer for the Defendant, and an Action of the Caſe lies againſt him for the Plaintiffe which ſued the Action, for not returning of the Precept, 10 Ed. 4. fol. 18. 3 H. 7. fol. 3.
If the ſervant of the Sheriffe arreſt one by Precept made out of a Capias, and return his precept to the Sheriffe, and yet the Sheriffe do not return his Capias, falſe Impriſonment lies againſt the ſervant. But by the 18. of Ed. 4. fol. 9. it appears that it is otherwiſe, where the Baylife of the Liberty arreſts one by precept, out of a Capias made to him by the Sheriffe, and returns his precept, and the Sheriffe do not return the Capias, there lies falſe Impriſonment againſt the Sheriffe, and not againſt the Bayliffe. But in Court Baron, Bayliffe or Beadle which have a precept of the Steward, cannot make precepts out of that to ſerve. 21 H. 7. fol. 22.20. H. 7. fol. 13.
One may arreſt one in the preſence of the Sheriffe, which hath a Capias by his Commandment, & it is his arreſt, without ſhewing the precept, and Bayliffe or Beadle of a Court Baron may attach or diſtrain any thing without a precept, in the preſence of the Steward, and by his Commandment. 8. Ed. 4. fol. 14. 21. H, 7. fol. 22.16. H. 7. fo. 14. See there.
Bayliffe or Beadle of Court Baron, diſtrain or ſerve Attachment, and the Defendant makes reſcous, and chaſeth the thing deſtrained or attached out of the Mannor, and the Officer freſhly follow and takes it again, and brings it into the Mannor again, and may well do it. 33. H 6. fol. 52. and 55. and 2 Ed. 4. fol. 6. accordingly.
If a Sarjeant at mace arreſt one, and he reſiſts, he may beat him, and others (upon requeſt) may aid him, 2. Ed. 4. fol. 6. B. and 3. H. 7. fol. 3.
By Hank, Officer cannot attach J. S. by my goods which he hath to dung his Land, or to plough it, or which he hath in pawn, 11. H. 4. fol. 90. B. 31. H. 8. tit. 159. It is ſaid, where one hath an Office of charge: as to be Steward, Bayliffe, Parker, &c. That the grantor may out them, and pay their Fee, if it be ſo much certain, but not where they have profits of Court. &c. 34 H. 8. tit: 243. the ſame.
28. H. 8. tit. 94. Deprivation of an Office which lies in grant, ought to be by deed and not by word.
5. Ed. 4. fol. 5. Long report, the Act of the under Sheriffe, or his Deputy in the name of the Sheriffe, ſhall charge the Sheriffe, and for their act the Sheriffe himſelf ſhall be amerced, and no other.
39 H. 6. fol. 35. The opinion of the Juſtices was, That eſcape of a priſoner is not a ſufficient cauſe of forfeiture of the office of the Marſhal, which hath fee in that, and held that the Marſhal might grant that to another for life, but his aſſignee cannot make a deputie; And the opinion of the Juſtices, that not executing of an office, is a ſufficient cauſe of ſeiſure: Deputie occupies to the uſe of the officer, and his forfeiture or miſdemeanour ſhall make the Officer to looſe his Office, but the miſdemeanour of the grantee for life not, but of his own eſtate.
11 Ed. 4. fol. 1. Duke, or Marſhal in fee, may make a Deputy for his Patent is, to be executed by himſelf or his Deputie. The ſame Law of the Office of Chamberlain of the Exchequer, which is alſo an Office of truſt, for he keeps the Records of the King, ſo that an Office of truſt cannot be granted over. If the Patentee hath it not, to him and his Aſſignees, he cannot make a Deputy, and there agreed, that he hath that, in his own right, and Deputy is not but to occupie in the Right of the Grantee. See Perkins, fol. 21. E. F. G. 10 Ed. 4. fol: 16.
5 Ed. 4. fol. 27. Where an anuity is granted to keep a Park, if the Grantee miſuſe that, by which the Deere are killed, that is forfeiture of his Office. Littleton fol: 73. If a man grant by his Deed to another the office of Parkerſhip, Steward, Bayliffe, … there is annexed to that a condition in Law, &c.
5 Ed. 4. fol: 10. The King grants to Garter the office of the King of Arms at will, and 10 li. fee, for tearm of his life for that Office, If the Grantee be put from the fee the office ſhall ceaſe, for the Cauſe ceaſing, the effect ſhall ceaſe. 7 Ed. 4. fol. 23. the ſame.
9 Ed. 4. fol. 5. If the King grant an Office to one which knows not how to uſe it, It is ſaid that the grant is void, and Juſtices may refuſe him. 5 Ed. 4. tit. 48. the ſame.
9 Ed. 4. fol: 6. The King grants Office, the Patentee may make title in aſſiſe, without ſhewing that it was an Office before. But if the grant was with vales and fees it is not good, unleſſe there be words (Conſtituimus) if there were none before.
9 Ed. 4. fol: 6. If the King grant the Office of one of the Clerks of the Crown to 2. the grant is good, but grant to two to be chief Juſtice is void, for it is a Judiciall office.
18 Ed. 4. fol: 8. The King grants the Office of chief prenotary to two that is void, and the Juſtices may refuſe to enroll it, for two cannot have the keeping of the Rolls.
29 H. 8. Tit. 47. If a man hath a fee of a Lord, and after is made a Juſtice, this fee is not void, but after he is made Juſtice, he is not to take fee of any but of the King. But where a Parſon is made a Biſhop, the Parſonage is void, for he cannot be Ordinary to himſelf, nor puniſh himſelf.
3 H. 7. fol: the laſt. The King cannot grant the Reverſion of an Office to J. S. by that name, but reciting how, that ſuch a one ſhal have and hold ſuch an Office for tearm of his life, of Our ſpeciall grace We grant the Office aforeſaid to J. S. to have after the death, &c. See 32 H. 8. Chap. 27.
9 H. 7. tit. 44. If the Warden of the Fleet, do not bring in his priſoner which is commanded by the Court, that is a cauſe of ſeiſing his Office. And if a priſoner condemned eſcape, he is to pay the condemnation.
11 Ed. 4 fol. 1. by Vaviſor, Not attendance is a cauſe of forfeiture of the Office.
Weſtm: 1. Chap. 26. No Sheriffe nor other Miniſter of the King, ſhall not take reward to do his office, and who doth, ſhall reſtore double to the Plaintiffe, and ſhall make Fine to the King.
Weſtm: 1. Chap. 29. No ſervant, accomptant, nor other make any diſceit or colluſion in the Kings Court, or conſent to make that in deceit of the Court to wrong the Court or party, and of that be attaint, he ſhall have Impriſonment for a yeer and a day, and be not heard in Court to count for none, and if there be another which counts he ſhall be impriſoned a yeer and a day.
Fitzh: 172. O. No Victualler ought to uſe to ſell victuall or wine, by great or retail, ſo long as he is in Office, as Mayor, &c. To keep the aſſiſe of bread and wine.
Fitzh: 173. A. Victualers ſhall not be choſen to office of Judge, in Towns and Cities, but for default of others, and then they ſhall not ſell victuals. See of that divers Statutes.
Proceſſe of Execution.
JOhn Kitchin Steward, to his Bayliffe health. Becauſe Rob. B. hath recovered againſt W.E. 31. s. in a Plea of Debt, and 12 d. for charges and coſts, of which the ſaid W. in the ſame Court was convicted by the Judgement of the Court. Therefore you ſhall cauſe to be levied according to the cuſtome the aforeſaid 31 s. in the ſaid Court adjudged, and the ſaid 12 d. for charges, and you ſhall have the ſaid money at the next Court to pay to the ſaid Rob: for his damages aforeſaid, and have there this Precept, and how, &c. dated the 24th day of April, the yeer of the Reign of the Queen, &c. 21.