Offences against27 Eliz. c. 12.By27 Eliz. c. 12.§ 5. if any undersheriff or other person mentioned in this act, shall do or commit any act or acts contrary to the oaths aforesaid, or either of them (See B. II. C. 3.) or contrary to the true intent and meaning of this act, every such person so offending shall forfeit and lose for every such offence, to the party or parties grieved, his or their treble damages.Summoning personscontrary to7 & 8 W. 3. c. 32.By7 & 8 W. 3. c. 32.§ 6. if the sheriff, his deputy or deputies, bailiff or bailiffs, shall summon and return any freeholder or copyholder, to 'try any issues joined in any of the courts [of K. B. C. P. or E.] or to be or serve on any jury at the assizes, sessions ofoyerandterminer, gaol delivery or sessions of the peace', otherwise than as 'directed by this act,' (See B. II. C. 5.) or in any ways neglect his or their duty or duties in the service or services of them required by this act, or excuse any person or persons for favour or reward, or allow of any writ ofnon ponendis in assizis & juratis, or other writ, to excuse or exempt any person or persons from the service of any jury or juries, under the age of 70 years, such sheriff, deputy or bailiff shall for every transgression forfeit the sum of 20l. to be recovered by the party or parties grieved or injured, or whom else will sue for the same.Summoning personscontrary to3 G. 2. c. 25.§ 3.By3 G. 2. c. 25.§ 3. in case any sheriff, undersheriff, bailiff or other officer to whom the return of juries shall belong, shall summon and return any person or persons to serve on any jury in any cause to be tryed before the justices of assize ornisi priusor judges of the great sessions, or the judge or judges of the sessions for the counties palatine, whose name is not inserted in the duplicates delivered or transmitted to him or them by the clerk of the peace, if any such duplicate shall be delivered or transmitted, any judge or justice of assize ornisi priusor judge or judges of the said great sessions, or the judge or judges of the sessions for the said counties palatine, shall and may, upon examination in a summary way, set such fine or fines upon such sheriff,&c.for every such person so summoned and returned as aforesaid as the said judge or justice of assize,nisi prius,&c.shall think meet not exceeding 10l. and not less than 40s.Wilful transgressioncontrary to3 G. 2. c. 25.§ 4.By § 4. if any sheriff shall wilfully transgress [in returning any persons as jurors to serve on trials atany assizes ornisi prius, or at the great sessions, or at the sessions for the counties palatine who have served within the space of one year before in the county of Rutland, or four years in the county of York, or of two years before in any other county, not being a county of a city or town,] any judge or justice of assize, ornisi prius,&c.may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon every such offender as he shall think meet, not exceeding 5l. for any one offence.Wilful transgressioncontrary to3 G. 2. c. 25.§ 6.By § 6. if any sheriff, undersheriff, bailiff or other officer shall wilfully transgress [in taking or receiving any money or other reward to excuse any person from serving or being summoned to serve on juries; or any bailiff or other officer appointed by any sheriff or undersheriff to summon juries, in summoning any person to serve thereon other than such whose name is specifyed in a mandate signed by such sheriff or undersheriff, and directed to such bailiff or other officer], any judge or justice of assize,nisi prius,&c.may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon any person or persons so offending as he shall think meet, not exceeding 10l. according to the nature of the offence.Offences against32 G. 2. c. 28.By32 G. 2. c. 28.§ 12. every sheriff, undersheriff, bailiff of any liberty, bailiff, serjeant at mace, gaoler and other officer and person as aforesaid, who shall in anywise offend against this act (see before C. 5.) shall, for every such offence (over and above such penalties and punishments as he or they shall be liableunto by the laws now in force) forfeit and pay to the party thereby aggrieved the sum of 50l. to be recovered with treble costs of suit, by action of debt, bill, plaint or information, in any of his Majestys courts of record at Westminster.Account.ByStat. de Marleberge(52 H. 3. c. 23.) if bailiffs which ought to make account to their lords do withdraw themselves and have no lands nor tenements whereby they may be distrained, they shall be attached by their bodies, so that the sheriff in whose bailiwick they be found shall cause them to come to make their account.Wreck and stray, &c.Account lies of wreck and stray though the bailiff does not seize it; for he shall account of all that he received and might have received.Br. Accompt.pl.94. (cites10 H. 7. 6.)So of toll, and of the profits of a common pound.Ibid.[52]If execution be directed to a sheriff to arrest any man or to make execution within a liberty, and the sheriff directs his warrant to a [l.the] bailiff of the liberty for to make execution of the process, 'who' makes it, and after is a fugitive, and not able to answer for that, the lord of the franchise shall answer for that, and shall be liable to answer for his bailiff by all the justices.2 Brownlow.50.[53]Before this statute, when the return which the bailiff of the franchise made to the sheriff was not sufficient, the court has refused to amerce the bailiff, because he was not minister to the court.T. 20 E. 3.Fitz. Retourne del vicount.113.CHAPTER VIII.OF HIS FEES.Arrest.By23 H. 6. c. 9.sheriffs, undersheriffs, bailiffs of franchises, nor any other bailiff, by occasion or under colour of their office, shall take any other thing of any person by them to be arrested or attached for the omitting of any arrest or attachment, for fine, fee, suit of prison, mainprise, letting to bail, or shewing any ease or favour to any such person, for their reward orprofit, but such as follow,viz.For the sheriff, 20d.; the bailiff which maketh the arrest or attachment, 4d.; and the gaoler, if the prisoner be committed to his ward, 4d.; nor for the making of any return or panel, and for the copy of any panel, but 4d. (Penalty treble damages and 40l.)Extent or execution.By29 Eliz. c. 4.it shall not be lawful to or for any sheriff, undersheriff, bailiff of franchises or liberties, nor for any of their officers, ministers, servants, bailiffs or deputies, by reason or colour of their office or offices, to have, receive or take of any person or persons whatsoever directly or indirectly for the serving and executing of any extent or execution, upon the body, lands, goods or chattels of any person or persons whatsoever, more or other consideration or recompence than 12d. for every 20s. where the sum exceedeth not 100l. and 6d. for every 20s. being over and above the said sum of 100l. 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, upon pain to lose and forfeit to the party grieved his treble damages, and to forfeit the sum of 40l. (half to the Queen and half to the informer or plaintiff.)The bailie of the franchise on29 Eliz. cap. 4.takes all execution fees.3 Keble. 71.Habere faciaspossessionemaut seisinam.By3 G. 1. c. 15.§ 16. it shall not be lawful for any sheriff,&c.or for the bailiff of any franchise or liberty, by reason or colour of their office or offices, or by reason or colour of their executing of any writ or writs ofhabere facias possessionem aut seisinam,to demand, ask, or receive any other or greater consideration, fee, gratuity or reward, than is hereafter mentioned (which shall be lawful to be demanded and taken); that is to say, the sum of 12d. for every 20s. of the yearly value of any manor, messuage, lands, tenements and hereditaments, whereof possession or seisin shall be by them or any of them given, where the whole exceedeth not the yearly value of 100l. and the sum of 6d. only for every 20s.per annum, over and above the said yearly value of 100l. (Penalty 200l.)Extent andliberate, &c.By8 G. 1. c. 25.§ 5. no sheriff to take for the extent andliberate&habere facias possessionemorseisinamon the real estate, by virtue of such extent, any more than the above fees. (Same penalty.)Process,under 10l. &c.By5 G. 2. c. 2.§ 2. no attorney, bailiff or other person, shall have, take, charge, or demand more than 5s. for the making and serving a copy of such process issuing out of any superior court [where cause of action is under 10l.], or more than 1s. for the making and serving a copy of such process, issuing out of any inferior court [where cause of action is under 40s.]English notice.By § 3. no fee or reward shall be taken for the English notice by this act required to be written upon every copy of process [where cause of action in superior court is under 10l. in inferior court under 40s.] to be served upon any defendant.[54][54]This notice is to the effect following,viz.A. B. You are served with this process, to the intent that you may by your attorney appear in his Majestys court of —— at the return thereof, being the —— day of —— in order to your defence in this action.CHAPTER IX.PLEADINGS.Creation.One may be bailiff by a simple grant (i. e.by parol) or patent or inheritance, and therefore no need to shew how.H. 33. H. 6. [3.]Fitz. Monstrauns de faitz, &c.93. andBr. Bailie. 2.Patent.Duchy.Aid of the King.Where a man justifies distress as the Kings bailiff of his manor, for rent or services arrear, and prays aid of the King, he shall have it without shewing patent how he is made bailiff, for he claims to the use of the King; but where he claims to his own use by the King, there he ought to shew patent; and it was held by the serjeants, that if a man justify as bailiff of the King by reason of his manor which he hath by reason of the duchy of Lancaster, that the defendant shall not have aid of the King before issue joined.15 H. 7. 17.Br. Ayde del roy, 51.Corporation.Bailiffs of a corporation (in avowry for beasts takendamage feasant) need not shew how the corporation was incorporated, nor say by their precept, nor need precept be in writing for such a matter as this.3 Lev.107.Distress.Bailiff who distrains ought to shew in what right he distrains.7 H. 4. 28.Br. Distresse, 78.Distress foramerciament.To bailiff justifying distress for amerciament, it sufficeth to take conusance of the presentment and no more andnon refertas to him, whether it be true or not.41 Ed. 3. 27.24 Ed. 3. 26.Cro. Eliz.748.Bailiff justifying distress for amerciament, in trespass ought to set out some estreat of the court or warrant from the steward, and justify under that.1 Salk.108.Bailiff justifying distress for amerciament in leet in trespass may pleadpresentatum fuitwithout averring the fact, fornon refertas to him whether the offence was done or not since there was a presentment: a difference between replevin and trespass; in the first the bailiff is an actor, and is to recover, which shall be upon the merits; in trespass he is only to excuse the wrong.1 Salk. 107.3 Salk. 52.Exchequer.If a man be amerced in the Kings leet, and upon process out of the exchequer the bailiff distrains him for the amercement, and he brings trespass, he ought to bring this action of trespass in the office of pleas of the exchequer, for the bailiff levyed it as officer of this court.1 Roll. Abr.539. andvideLane, 55.Averment.If bailiff do any thing which touches his bailiwick, as payment of rents and such like, which are due in right of the manor, it is reasonable that he should have the averment, but of a thing which doth not touch his bailiwick it is not reasonable that he should have the averment without warrantry.42 E. 3. 6.Br. Accompt.26.Where bailiff of franchise [under23 H. 6. c. 9.] takes bailbond, to himself, by the name of his office, sufficient in pleading to shew generally that he is such a person as had authority to take bail.Comyns, 380.Debt upon bond by the plaintiff who was chief bailiff of the liberty of Pontefract in Yorkshire, but he did not declare ascapital' ballivus, but yet by the whole court it was held good; for otherwise the defendant might have cravedoyer, and have [had] it enteredin hæc verba, and then have pleaded the statute of23 H. 6.that it was takencolore officii, but now it shall be intended good upon the demurrer to the declaration. AndEllis, J.said, that so it was lately resolved in this court in the case of one Conquest. And judgement was given for the plaintiff.2 Mod.36.Inferior court.Bailiff of an inferior court the process whereof he executes, must shew the jurisdiction of that court in pleadings.1 Keble, 53.Trial.Cary bailiff of Westminsterv.Buckhurst for entering his liberty and executing afi. fa.Demurrer that it doth not appear how plaintiff was seized of the office. Judgement for plaintiff, inquiry of damages to 49l. Affirmed in error. Upon a trial the right must have been proved if the defendant had taken issue, and no inconvenience in this form of declaring.1 Show, 17.Comb.31.S. C.Tort.Where a bailiff is charged directly with a tort, it ought to be shewn that he is bailiff of a liberty, who hasReturna Brevium.Comyns, 379.Declaration v. bailiff.Declaration against bailiff of Westminster, because plaintiff doth not say of what liberty he is bailiff, and whether he hath execution and return, bad; becauseotherwise no colour to charge him, and therefore ought to be specially shewn.Cro. Car.330.Pernor.Quo warranto.Against apernorthe plaintiff need not shew how he claims the privilege of return of writs; but in aquo warrantowhere the defendant must make a title he ought to shew it.Hardres, 423.Return of the writ.Bailiff of a liberty in justification need not shew the return of the writ.Cro. Car.447.Sheriffs return.Debt, to thecapiasthe sheriff returnednon est inventus, the plaintiff shewed that the sheriff made a precept to the bailiff of the franchise to take the body, who took him and delivered him to the sheriff, which he would aver,&c.Tota curia, you shall not have this averment against the return of the sheriff. Nor in any case, but too little issues by the statute.H. 2 H. 4. 14.Fitz. Averment, 17.In case against a bailiff for the false return ofnulla bonaupon afieri facias, the question was upon the evidence at the trial, whether the bailiff of a liberty shall be concluded in point of evidence by the return of the sheriff? andper curiam, he is concluded; and if the sheriff makes any other return than that which the bailiff makes to him, he may have his action against the sheriff; and it was said that Holt, chief justice, was of this opinion. See36 Hen. 6. 40 [1.]L. Raym.184.Mandate.Upon a demurrer, Powel said that the plea was naught, because it sets forth a mandate to the bailiffof the liberty, and did not shew that it was under the hand and seal of the sheriff.2 Vent.193. But see1 Ventris, 46. that on motion to quash a return of a rescous, because it wasmandavi ballivis, who took himvirtute warr' præd', and it was said,mandavidid not imply that it was in writing, the exception was disallowed by the court.[55]County.Where any thing is shewed to be done within a liberty or a franchise, there it is not necessary to shew within what county that liberty or franchise doth lie.Trin. 23. Car. B. R.For the franchise hath no relation to the county.S. P. R.404.[55]And quære whether mandate be ever pleaded to be under thehandof the sheriff.Nota, thatmandavidoes not mean, and of course should not be translated,I have commanded, butI have sent to. The sheriff cannotcommandthe bailiff of the franchise, having no sort of authority over him in any case whatever.
Offences against27 Eliz. c. 12.
By27 Eliz. c. 12.§ 5. if any undersheriff or other person mentioned in this act, shall do or commit any act or acts contrary to the oaths aforesaid, or either of them (See B. II. C. 3.) or contrary to the true intent and meaning of this act, every such person so offending shall forfeit and lose for every such offence, to the party or parties grieved, his or their treble damages.
Summoning personscontrary to7 & 8 W. 3. c. 32.
By7 & 8 W. 3. c. 32.§ 6. if the sheriff, his deputy or deputies, bailiff or bailiffs, shall summon and return any freeholder or copyholder, to 'try any issues joined in any of the courts [of K. B. C. P. or E.] or to be or serve on any jury at the assizes, sessions ofoyerandterminer, gaol delivery or sessions of the peace', otherwise than as 'directed by this act,' (See B. II. C. 5.) or in any ways neglect his or their duty or duties in the service or services of them required by this act, or excuse any person or persons for favour or reward, or allow of any writ ofnon ponendis in assizis & juratis, or other writ, to excuse or exempt any person or persons from the service of any jury or juries, under the age of 70 years, such sheriff, deputy or bailiff shall for every transgression forfeit the sum of 20l. to be recovered by the party or parties grieved or injured, or whom else will sue for the same.
Summoning personscontrary to3 G. 2. c. 25.§ 3.
By3 G. 2. c. 25.§ 3. in case any sheriff, undersheriff, bailiff or other officer to whom the return of juries shall belong, shall summon and return any person or persons to serve on any jury in any cause to be tryed before the justices of assize ornisi priusor judges of the great sessions, or the judge or judges of the sessions for the counties palatine, whose name is not inserted in the duplicates delivered or transmitted to him or them by the clerk of the peace, if any such duplicate shall be delivered or transmitted, any judge or justice of assize ornisi priusor judge or judges of the said great sessions, or the judge or judges of the sessions for the said counties palatine, shall and may, upon examination in a summary way, set such fine or fines upon such sheriff,&c.for every such person so summoned and returned as aforesaid as the said judge or justice of assize,nisi prius,&c.shall think meet not exceeding 10l. and not less than 40s.
Wilful transgressioncontrary to3 G. 2. c. 25.§ 4.
By § 4. if any sheriff shall wilfully transgress [in returning any persons as jurors to serve on trials atany assizes ornisi prius, or at the great sessions, or at the sessions for the counties palatine who have served within the space of one year before in the county of Rutland, or four years in the county of York, or of two years before in any other county, not being a county of a city or town,] any judge or justice of assize, ornisi prius,&c.may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon every such offender as he shall think meet, not exceeding 5l. for any one offence.
Wilful transgressioncontrary to3 G. 2. c. 25.§ 6.
By § 6. if any sheriff, undersheriff, bailiff or other officer shall wilfully transgress [in taking or receiving any money or other reward to excuse any person from serving or being summoned to serve on juries; or any bailiff or other officer appointed by any sheriff or undersheriff to summon juries, in summoning any person to serve thereon other than such whose name is specifyed in a mandate signed by such sheriff or undersheriff, and directed to such bailiff or other officer], any judge or justice of assize,nisi prius,&c.may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon any person or persons so offending as he shall think meet, not exceeding 10l. according to the nature of the offence.
Offences against32 G. 2. c. 28.
By32 G. 2. c. 28.§ 12. every sheriff, undersheriff, bailiff of any liberty, bailiff, serjeant at mace, gaoler and other officer and person as aforesaid, who shall in anywise offend against this act (see before C. 5.) shall, for every such offence (over and above such penalties and punishments as he or they shall be liableunto by the laws now in force) forfeit and pay to the party thereby aggrieved the sum of 50l. to be recovered with treble costs of suit, by action of debt, bill, plaint or information, in any of his Majestys courts of record at Westminster.
Account.
ByStat. de Marleberge(52 H. 3. c. 23.) if bailiffs which ought to make account to their lords do withdraw themselves and have no lands nor tenements whereby they may be distrained, they shall be attached by their bodies, so that the sheriff in whose bailiwick they be found shall cause them to come to make their account.
Wreck and stray, &c.
Account lies of wreck and stray though the bailiff does not seize it; for he shall account of all that he received and might have received.Br. Accompt.pl.94. (cites10 H. 7. 6.)
So of toll, and of the profits of a common pound.Ibid.
[52]If execution be directed to a sheriff to arrest any man or to make execution within a liberty, and the sheriff directs his warrant to a [l.the] bailiff of the liberty for to make execution of the process, 'who' makes it, and after is a fugitive, and not able to answer for that, the lord of the franchise shall answer for that, and shall be liable to answer for his bailiff by all the justices.2 Brownlow.50.[53]Before this statute, when the return which the bailiff of the franchise made to the sheriff was not sufficient, the court has refused to amerce the bailiff, because he was not minister to the court.T. 20 E. 3.Fitz. Retourne del vicount.113.
[52]If execution be directed to a sheriff to arrest any man or to make execution within a liberty, and the sheriff directs his warrant to a [l.the] bailiff of the liberty for to make execution of the process, 'who' makes it, and after is a fugitive, and not able to answer for that, the lord of the franchise shall answer for that, and shall be liable to answer for his bailiff by all the justices.2 Brownlow.50.
[53]Before this statute, when the return which the bailiff of the franchise made to the sheriff was not sufficient, the court has refused to amerce the bailiff, because he was not minister to the court.T. 20 E. 3.Fitz. Retourne del vicount.113.
Arrest.
By23 H. 6. c. 9.sheriffs, undersheriffs, bailiffs of franchises, nor any other bailiff, by occasion or under colour of their office, shall take any other thing of any person by them to be arrested or attached for the omitting of any arrest or attachment, for fine, fee, suit of prison, mainprise, letting to bail, or shewing any ease or favour to any such person, for their reward orprofit, but such as follow,viz.For the sheriff, 20d.; the bailiff which maketh the arrest or attachment, 4d.; and the gaoler, if the prisoner be committed to his ward, 4d.; nor for the making of any return or panel, and for the copy of any panel, but 4d. (Penalty treble damages and 40l.)
Extent or execution.
By29 Eliz. c. 4.it shall not be lawful to or for any sheriff, undersheriff, bailiff of franchises or liberties, nor for any of their officers, ministers, servants, bailiffs or deputies, by reason or colour of their office or offices, to have, receive or take of any person or persons whatsoever directly or indirectly for the serving and executing of any extent or execution, upon the body, lands, goods or chattels of any person or persons whatsoever, more or other consideration or recompence than 12d. for every 20s. where the sum exceedeth not 100l. and 6d. for every 20s. being over and above the said sum of 100l. 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, upon pain to lose and forfeit to the party grieved his treble damages, and to forfeit the sum of 40l. (half to the Queen and half to the informer or plaintiff.)
The bailie of the franchise on29 Eliz. cap. 4.takes all execution fees.3 Keble. 71.
Habere faciaspossessionemaut seisinam.
By3 G. 1. c. 15.§ 16. it shall not be lawful for any sheriff,&c.or for the bailiff of any franchise or liberty, by reason or colour of their office or offices, or by reason or colour of their executing of any writ or writs ofhabere facias possessionem aut seisinam,to demand, ask, or receive any other or greater consideration, fee, gratuity or reward, than is hereafter mentioned (which shall be lawful to be demanded and taken); that is to say, the sum of 12d. for every 20s. of the yearly value of any manor, messuage, lands, tenements and hereditaments, whereof possession or seisin shall be by them or any of them given, where the whole exceedeth not the yearly value of 100l. and the sum of 6d. only for every 20s.per annum, over and above the said yearly value of 100l. (Penalty 200l.)
Extent andliberate, &c.
By8 G. 1. c. 25.§ 5. no sheriff to take for the extent andliberate&habere facias possessionemorseisinamon the real estate, by virtue of such extent, any more than the above fees. (Same penalty.)
Process,under 10l. &c.
By5 G. 2. c. 2.§ 2. no attorney, bailiff or other person, shall have, take, charge, or demand more than 5s. for the making and serving a copy of such process issuing out of any superior court [where cause of action is under 10l.], or more than 1s. for the making and serving a copy of such process, issuing out of any inferior court [where cause of action is under 40s.]
English notice.
By § 3. no fee or reward shall be taken for the English notice by this act required to be written upon every copy of process [where cause of action in superior court is under 10l. in inferior court under 40s.] to be served upon any defendant.[54]
[54]This notice is to the effect following,viz.A. B. You are served with this process, to the intent that you may by your attorney appear in his Majestys court of —— at the return thereof, being the —— day of —— in order to your defence in this action.
[54]This notice is to the effect following,viz.A. B. You are served with this process, to the intent that you may by your attorney appear in his Majestys court of —— at the return thereof, being the —— day of —— in order to your defence in this action.
Creation.
One may be bailiff by a simple grant (i. e.by parol) or patent or inheritance, and therefore no need to shew how.H. 33. H. 6. [3.]Fitz. Monstrauns de faitz, &c.93. andBr. Bailie. 2.
Patent.Duchy.Aid of the King.
Where a man justifies distress as the Kings bailiff of his manor, for rent or services arrear, and prays aid of the King, he shall have it without shewing patent how he is made bailiff, for he claims to the use of the King; but where he claims to his own use by the King, there he ought to shew patent; and it was held by the serjeants, that if a man justify as bailiff of the King by reason of his manor which he hath by reason of the duchy of Lancaster, that the defendant shall not have aid of the King before issue joined.15 H. 7. 17.Br. Ayde del roy, 51.
Corporation.
Bailiffs of a corporation (in avowry for beasts takendamage feasant) need not shew how the corporation was incorporated, nor say by their precept, nor need precept be in writing for such a matter as this.3 Lev.107.
Distress.
Bailiff who distrains ought to shew in what right he distrains.7 H. 4. 28.Br. Distresse, 78.
Distress foramerciament.
To bailiff justifying distress for amerciament, it sufficeth to take conusance of the presentment and no more andnon refertas to him, whether it be true or not.41 Ed. 3. 27.24 Ed. 3. 26.Cro. Eliz.748.
Bailiff justifying distress for amerciament, in trespass ought to set out some estreat of the court or warrant from the steward, and justify under that.1 Salk.108.
Bailiff justifying distress for amerciament in leet in trespass may pleadpresentatum fuitwithout averring the fact, fornon refertas to him whether the offence was done or not since there was a presentment: a difference between replevin and trespass; in the first the bailiff is an actor, and is to recover, which shall be upon the merits; in trespass he is only to excuse the wrong.1 Salk. 107.3 Salk. 52.
Exchequer.
If a man be amerced in the Kings leet, and upon process out of the exchequer the bailiff distrains him for the amercement, and he brings trespass, he ought to bring this action of trespass in the office of pleas of the exchequer, for the bailiff levyed it as officer of this court.1 Roll. Abr.539. andvideLane, 55.
Averment.
If bailiff do any thing which touches his bailiwick, as payment of rents and such like, which are due in right of the manor, it is reasonable that he should have the averment, but of a thing which doth not touch his bailiwick it is not reasonable that he should have the averment without warrantry.42 E. 3. 6.Br. Accompt.26.
Where bailiff of franchise [under23 H. 6. c. 9.] takes bailbond, to himself, by the name of his office, sufficient in pleading to shew generally that he is such a person as had authority to take bail.Comyns, 380.
Debt upon bond by the plaintiff who was chief bailiff of the liberty of Pontefract in Yorkshire, but he did not declare ascapital' ballivus, but yet by the whole court it was held good; for otherwise the defendant might have cravedoyer, and have [had] it enteredin hæc verba, and then have pleaded the statute of23 H. 6.that it was takencolore officii, but now it shall be intended good upon the demurrer to the declaration. AndEllis, J.said, that so it was lately resolved in this court in the case of one Conquest. And judgement was given for the plaintiff.2 Mod.36.
Inferior court.
Bailiff of an inferior court the process whereof he executes, must shew the jurisdiction of that court in pleadings.1 Keble, 53.
Trial.
Cary bailiff of Westminsterv.Buckhurst for entering his liberty and executing afi. fa.Demurrer that it doth not appear how plaintiff was seized of the office. Judgement for plaintiff, inquiry of damages to 49l. Affirmed in error. Upon a trial the right must have been proved if the defendant had taken issue, and no inconvenience in this form of declaring.1 Show, 17.Comb.31.S. C.
Tort.
Where a bailiff is charged directly with a tort, it ought to be shewn that he is bailiff of a liberty, who hasReturna Brevium.Comyns, 379.
Declaration v. bailiff.
Declaration against bailiff of Westminster, because plaintiff doth not say of what liberty he is bailiff, and whether he hath execution and return, bad; becauseotherwise no colour to charge him, and therefore ought to be specially shewn.Cro. Car.330.
Pernor.Quo warranto.
Against apernorthe plaintiff need not shew how he claims the privilege of return of writs; but in aquo warrantowhere the defendant must make a title he ought to shew it.Hardres, 423.
Return of the writ.
Bailiff of a liberty in justification need not shew the return of the writ.Cro. Car.447.
Sheriffs return.
Debt, to thecapiasthe sheriff returnednon est inventus, the plaintiff shewed that the sheriff made a precept to the bailiff of the franchise to take the body, who took him and delivered him to the sheriff, which he would aver,&c.Tota curia, you shall not have this averment against the return of the sheriff. Nor in any case, but too little issues by the statute.H. 2 H. 4. 14.Fitz. Averment, 17.
In case against a bailiff for the false return ofnulla bonaupon afieri facias, the question was upon the evidence at the trial, whether the bailiff of a liberty shall be concluded in point of evidence by the return of the sheriff? andper curiam, he is concluded; and if the sheriff makes any other return than that which the bailiff makes to him, he may have his action against the sheriff; and it was said that Holt, chief justice, was of this opinion. See36 Hen. 6. 40 [1.]L. Raym.184.
Mandate.
Upon a demurrer, Powel said that the plea was naught, because it sets forth a mandate to the bailiffof the liberty, and did not shew that it was under the hand and seal of the sheriff.2 Vent.193. But see1 Ventris, 46. that on motion to quash a return of a rescous, because it wasmandavi ballivis, who took himvirtute warr' præd', and it was said,mandavidid not imply that it was in writing, the exception was disallowed by the court.[55]
County.
Where any thing is shewed to be done within a liberty or a franchise, there it is not necessary to shew within what county that liberty or franchise doth lie.Trin. 23. Car. B. R.For the franchise hath no relation to the county.S. P. R.404.
[55]And quære whether mandate be ever pleaded to be under thehandof the sheriff.Nota, thatmandavidoes not mean, and of course should not be translated,I have commanded, butI have sent to. The sheriff cannotcommandthe bailiff of the franchise, having no sort of authority over him in any case whatever.
[55]And quære whether mandate be ever pleaded to be under thehandof the sheriff.
Nota, thatmandavidoes not mean, and of course should not be translated,I have commanded, butI have sent to. The sheriff cannotcommandthe bailiff of the franchise, having no sort of authority over him in any case whatever.