Transcriber's Note.
Apparent typographical errors have been corrected. The use of hyphens has
been rationalised.
Italics are indicated by _underscores_. Small capitals have been replaced
by full capitals.
Square brackets, which indicate sidenotes and footnotes, are also present
in the text.
There are several words in Anglo-Saxon script. These are indicated by
=equal signs=. The individual characters have been replaced by their
modern equivalents: "wynn" by "w", and so on.
THE
OFFICE
OF
BAILIFF
OF A
LIBERTY.
BY JOSEPH RITSON, Esq.
BARRISTER AT LAW,
LATE HIGH BAILIFF OF THE SAVOY.
Ballivus cujuscunque manerii esse debet in verbo verax, et in opere
diligens ac fidelis, ac pro discreto appruatore cognitus, plegiatus, &
electus, qui de communioribus legibus pro tanto officio sufficienter se
cognoscat, et quòd sit ita justus, quòd ob vindictam vel cupiditatem non
quærat versus tenentes domini, vel aliquos sibi subditos, occasiones
injustas, per quas destrui debent, seu graviter amerciari. FLETA. _l. 2.
c. 73._
LONDON:
PRINTED BY A. STRAHAN,
LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY;
FOR J. BUTTERWORTH, LAW-BOOKSELLER,
FLEET-STREET.
1811.
ADVERTISEMENT.
The little work now offered to the public was originally compiled by Mr.
Ritson about the same period as similar treatises, on _The Office of
Constable_, and _The Jurisdiction of the Court-Leet_, published in his
lifetime. The author's attachment to the subject, it is believed, induced
him to defer the publication of the present digest, in the hope of
increasing its value by ampler information or more diligent research; and
this object appears to have been sufficiently pursued, during the latter
years of the author's life, to answer his wishes, as the work was left by
him in every respect ready for the press.
The editor feels it due to the memory of his much honored and lamented
uncle to add, that the recent publications to which Mr. Ritson's name,
from interested motives, has been, very unwarrantably, affixed, are not
intitled to any credit.
JOSEPH FRANK.
Stockton-upon-Tees,
1st February 1811.
PREFACE.
The subject of the following digest is not, as may be hastily imagined, a
matter of mere curiosity or antiquarian research. The officer of whom it
treats exercises his function in many parts of the kingdom, in its
fullest extent, at this day; though the attention requisite in certain
branches of his duty may in some places, no doubt, have induced him to
neglect them.
The want of such a compilation as the present must have been more or less
felt by every one who has acted in the execution of this office; and
indeed it ought to seem much more extraordinary (considering the
multitude of similar publications on other subjects) that it should not
have been attempted long ago, than that it appears at present.
Little can, and less need be said in favour of a work which has no
obligations either to genius or to judgement: some labour, however, has
undoubtedly been exerted in the compilation, which, should it have the
good fortune to prove so far serviceable to those whom it most concerns,
as to render the discharge of an ancient and honorable office an object
of less difficulty or hazard, the 'compiler' will not have reason to
regret.
CONTENTS.
Page
INTRODUCTION xi
BOOK I. Of a franchise or liberty 1
Chap. I. Of franchises in general 1
---- II. Of the liberty of _Retorna Brevium_, or return
of writs 3
BOOK II. Of the bailiff of a franchise or liberty 16
Chap. I. Of his quality 16
---- II. Of his creation or appointment, and interest
in his office 17
---- III. Of his qualification 18
---- IV. Of his power and capacity; i. e. what he may
or may not do or be 20
---- V. Of his duty, i. e. what he must or shall do
or not do 26
---- VI. Of his indemnity and protection 54
---- VII. Of his responsibility and punishment 59
---- VIII. Of his fees 68
---- IX. Pleadings 71
APPENDIX 76
INTRODUCTION.
Bailiff (_Baillif_, or _Baillie_ French; _Ballivus_, Latin; from
_balliare_ to deliver, intrust, or commit,) is the name given by the
Normans to those ministers of the law whom the Saxons called =gerefa=,
_greve_ or _reve_[1]: an appellation which, however corruptly, we still
retain in the word _sheriff_, (=scyre-gerefa=, or _shire-reve_,) and by
which the bailiff of a manor is in many parts of the kingdom known to
this day. The sheriff himself did not, it is true, long continue to enjoy
the title of bailiff, which gave place to the more honorable one of
_vicecomes_ or _viscount_ (_qui fungitur vice comitis_,) by which name
alone he was constantly stiled in all judicial proceedings, till the
progressive ascendency of the English tongue restored to him his ancient
and original appellation. His county, however, is still called his
_bailiwick_[2], he is often mentioned in _Magna Charta_ and ancient
statutes along with _alii ballivi_, and is himself frequently included
under that title[3]. Between this officer and the bailiff of a hundred,
manor or liberty, such a perfect resemblance appears to have subsisted,
in all respects, that there cannot be a doubt that both were the produce,
if not of the same hand, at least, of the same system. The division of
the kingdom into counties, hundreds and tithings, is well known to be
owing to the wise policy of the great Ælfred[4]; each county, hundred or
tithing is agreed to have been subjected to an officer known by the
common name of the =gerefa=; he who presided over the county at large
being usually, by way of distinction, called the =heh= or =scyre-gerefa=
and sometimes the =scyr=-man, as the others were stiled the =hundred= and
=tything-gerefa= or the hundreder, and tithingman[5]. We are but
imperfectly acquainted with the duty of this officer till after the
conquest. It is said, indeed, that the sheriff, in the time of the
Saxons, was not the minister of the King, but the officer of the
=Ealderman= or =Eorl=[6]. And what this alderman or earl was to the
county, the lord or thain was, no doubt, to his manor or liberty, and
what the sheriff was to the former, the inferior =gerefa= or bailiff was
to the latter. Certain it is that not only the several courts of which we
shall have occasion to speak, but what we now call manors or liberties,
existed from a very early period, nor was it possible for the Norman
Kings to enlarge, in favour of their own countrymen, the amazing powers
which almost every petty Saxon thain or lord exercised in his
jurisdiction, either from the nature of the constitution and ordinary
course of law, or the liberal grants of the Saxon monarchs: powers which
the Norman jurists never found themselves able to express in a different
language[7].
The sheriff was originally elected by the freeholders or suitors of the
great Court Baron of the county, commonly called the County Court; the
bailiff by the freeholders of the hundred or manor, suitors to the Court
Baron of each division[8]: and when the right of election in the former
case was wrested from the people by the Norman tyrants[9], the same right
in the latter case was usurped by the lord of the hundred or manor. The
sheriff presided as judge in the folkmote or leet of the county, the
bailiff in that of the hundred or manor. The former sat as principal
executive officer of the County Court; the bailiff, of the Court Baron;
the freeholders or suitors being the judges in each to this day: and
though both seem to have been anciently considered as the Kings courts,
yet offences were in one alledged to be _contra pacem ballivi_, and in
the other _contra pacem vicecomitis_[10]. The fines and amerciaments
imposed in these courts were levied, and the process of the court
executed by the sheriff and bailiff in the same manner; each having his
serjeants or inferior officers to assist him: and in the proceedings of
the above courts, or others nearly similar, and held by or before the
same persons, was comprehended the whole system, as well of the civil as
of the criminal law of that age, not only before the institution of
judges itinerant, but (in many cases at least) long after. The revenue of
the crown was collected and accounted for by the sheriff and bailiff
within their respective jurisdictions: And as each of them governed the
tenants in peace, so he led them forth to war when necessity
required[11]. Each of them had likewise his proper _aid_ or _scot_, which
he assessed upon the landholders within his bailiwick, who frequently
complained of it as an intolerable grievance, and as such it was at
length abolished. The Kings writ is thought not to have run as it now
does till about the institution of the Eyre or Iter of the Justices by K.
_H. 2_.[12] How his commands were signified before this invention does
not clearly appear[13]; but certainly after it took place, the execution
of the writ (though necessarily directed to the sheriff) was as much the
duty of the bailiff within the franchise, as of the sheriff without; nor
could the latter, without a special authority, interfere in the most
trivial matter which belonged to the other. In short, whatever the
sheriff did or could do in the county at large the bailiff could do and
did within his franchise, whether hundred[14] or manor. Such was the
ancient constitution, and such in a great measure will appear from the
following sheets to be the law at this day.
[1] From =gerefen= _tollere_, _rapere_, _exigere_. _Exactor Regis (sc.
mulctarum & jurium suorum). Ideo scil. quod mulctas regias et
delinquentium facultates, in fiscum raperent, exigerent, deportarent._
Spelman, _voce_ REVE.
[2] See _Co. Lit. 168, b._ Whenever the sheriff in any judicial
proceedings speaks or is spoken to of his county, the law in fact has
regularly no other name for it; _in comitatu meo_ or _tuo_ for instance
has (frequently at least) a very different meaning.
[3] _2 Inst. 19._ Blount, _voce_ Bailiff. And see _Fortescue on
Monarchy_, 124. _Sed quia_ vicecomes ... _fuit_ ... magnus domini Regis
ballivus. _M. Paris._ 801. The governors of the city of London were
originally called portreves, then bailiffs, then sheriffs, and at last
mayors. _Stows Survey_, by Strype. _B. v. c. 6._
[4] _Ingulphus (apud scriptores post Bedam)._ 870. _Gul. Malmesburiensis
de Gestis Regum. Ibi._ 44. Camdens _Britannia. clxvii._ _Seldeni
Analecta, Opera, ii._ 922. Notes upon Draytons Polyolbion. Song xi.
(Works. iv. 1839.) Shires, however, it is certain there were before this
time. See Bradys Hist. of Eng. i. 84. 116. and Sir J. Spelmans Life of
Ælfred. 110.
[5] The _præpositus villæ_, or bailiff of a manor, was also called the
=tungerefa= or Tungreve. _Vide_ Spelman, _voce_ Grafio.
[6] Hickes. Dis. Epis. 49.
[7] Infangtheof, outfangtheof, thol, theam, soc, sac, blodwite,
fythewite, flyhtewite, fledwite, ferdwite, hengewite, leirwite,
childwite, wardwite, grithbrech, hamsocn, forstall, ordel, oreste,
flemenefrith, miskennyng, burgbruch, &c. &c.
[8] Kennet, Par. Ant. Glos. v. _præpositus_. Another title common to
sheriff, bailiff, and reve.
[9] This privilege was restored to the people by the _Articuli super
Chartas_; _28 E. 1. c. 8._ but resumed in the following reign, and has
ever since continued in the crown. _9 E 2. st. 2. Jenk._ 229. They enjoy
the right of electing the coroner still; chiefly, it is supposed,
because it has not been thought worth taking from them.
[10] _Fleta. l. 2. c. 53._ § 1. The _steward_ has been in possession of
this branch of the bailiffs office for many centuries. When this
transfer took place would be scarcely possible to discover. It should
seem, however, to have been gradual, and might possibly have its rise
from the _Senescallus_, the =Styweard= or _major-domo_ being sometimes
more conversant in forensic matters than the bailiff, whose office
chiefly concerned the management of the lords demesne and other
out-of-door concerns. The _Mirror_ (written in the time of _E. 2._)
constantly speaks of the bailiff as judge of the court leet; see also
Ken. _Par. Ant._ p. 319. And thus Finch, speaking of the County Court
and Court Baron, says "the suitors are the judges and the _bailiff_ and
sheriff are but ministers." _Law._ 248. And hence, perhaps, it has been
held that both offices might be enjoyed by one and the same person.
_Cro. Jac._ 178. (cites _29 H. 8._) And it should seem from Bracton that
writs were indifferently directed to either the steward, or the bailiff,
_ballivo vel senescallo_. _l. 5. c. 32._
About the time that this separation took place, the lowest branches of
the bailiffs office were transfered to an inferior minister, named a
_reve_, of whom we read at large in _Fleta. l. 2. c. 76._ But possibly
this was only the case in extensive manors and demesnes, where a single
person was found unequal to the discharge of the united functions of
_steward_, _bailiff_, and _reve_.
[11] Lambards _Perambulation of Kent._ p. 484.
[12] _V._ Prynne, Animad. on 4 Inst. p. 150. _Hickes. Dis. Ep._ p. 8.
48. See however in Madox, His. Ex. p. 100. an instance of justices
itinerant in the time of K. Stephen. Writs unknown to the Saxons.
_Hickes. u. s._ p. 8.
[13] A collection of all the writs and charters that can be met with of
the first three or four Norman kings would be a useful, curious, and
interesting work.
[14] Most hundreds have, by statute or otherwise, been united to the
body of the county and power of the sheriff. But many of them, having
been granted in fee, still exist as independent franchises.
THE
OFFICE
OF
BAILIFF OF A LIBERTY.
BOOK I.
Of a FRANCHISE or LIBERTY[15].
CHAPTER I.
OF FRANCHISES IN GENERAL.
[Sidenote: Royal privilege.]
[Sidenote: Forfeiture.]
A franchise is a royal privilege in the hands of a subject; and is
forfeited by misusing it. _Finch_, 164.
[Sidenote: Record.]
If a franchise be of record in any court of the King it is sufficient.
_27 H. 6. 9._
[Sidenote: _Quo warranto._]
Allowance of franchises in _Quo warranto_ or in Eyre shall conclude the
King, for this is the suit of the King to try franchise; _contra_ of
allowance in the Common Bench or other court. _10 H. 7. 13._ _Br.
Fraunches & Liberties_, 40.
[Sidenote: General statute.]
Franchise bound by general statute, _tam_ within _quam_ without the
franchise. _19 H. 6. 1._
Franchise or other special liberty or privilege shall not be defeated by
general statute. _19 H. 6. 64._[16]
[Sidenote: Prisons.]
Albeit divers lords of liberties have custody of the prisons and some in
fee, yet the prison itself is the Kings _pro bono publico_; and therefore
it is to be repaired at the common charge; for no subject can have the
prison itself. _2 Inst._ 589.
None can claim a prison as a franchise, unless they have also a
jail-delivery of felony, which the dean and chapter of Westminster hath
not, and therefore ought to send a calendar of 'prisoners' to Newgate, or
return the _Habeas Corpus_ to _B. R._ with a claim of their franchise. _1
Salk._ 343.
[Sidenote: _Magna Charta._]
By _Mag. Char._ c. 38., are saved to all archbishops, &c. earls, barons,
and all others, all liberties and free customs which they had enjoyed
before.
In the preamble to many of the old statutes it is stipulated that all the
lords spiritual and temporal, and the other lieges of the King having
liberties and franchises, shall have and enjoy all their liberties and
franchises which they have of the grant of the Kings progenitors and of
his own grant and confirmation. This is the constant preface to the
petition rolls to which the King always answers "_Le Roy le voet_." _Rot.
Parl._ _passim_. And that all persons and corporations may fully enjoy
their liberties, [and] franchises, [was] one prime cause of calling
parliaments, and so declared, and the conservation of them one chief
petition of the commons when violated. _Abridgement of the Records_[17].
_Table_, _voce_ Liberties.
[15] Note, that these words are in this work used in two different
senses, but both equally common: viz. 1. for the privilege itself, as
the franchise or liberty of _Retorna Brevium_: 2. for the manor or
territory in or over which that privilege is exercised, as the Liberty
or Franchise of the Savoy. There will seldom, if ever, be any confusion
or obscurity on this account.
[16] Vide _Co. Lit._ 115. and the case of the King against Pugh.
_Douglas_ 179.
[17] Published by Prynne under the name of Sir Robert Cotton, but said
to have been actually compiled by William Bowyer, keeper of the records
in the Tower in the time of Queen Elizabeth.
CHAPTER II.
OF THE LIBERTY OF _Retorna Brevium_, OR RETURN OF WRITS.
[Sidenote: Roll of Liberties.]
[Sidenote: _Non omittas._]
By _W. 2. c. 39._ The treasurer of the exchequer shall deliver in a roll
all the liberties in all shires that have return of writs. And if the
sheriff answer that he hath made return to the bailiffs of any other
liberty than is contained in the said roll, the sheriff shall be
forthwith punished as a disheritor of the King and his crown[18]. And if
peradventure he answer that he hath returned the writ to the bailiffs of
some liberty that indeed hath return who hath done nothing therein[19],
the sheriff shall be commanded that he shall not omit by reason of the
aforesaid liberty, but that the Kings precept shall be executed; and that
he make known to the bailiffs to whom he returned the writ that they be
at a day contained in the writ to answer why they have not made execution
of the Kings precept. And if they come at the day and acquit themselves
that return of the writ was not made to them, the sheriff shall be
forthwith condemned to the lord of the same liberty, and likewise the
party grieved by the delay in restitution of damages. And if the bailiffs
come not at the day, or come and do not acquit themselves in manner
aforesaid, in every judicial writ, so long as the plea endureth, the
sheriff shall be commanded that he omit not because of the liberty, &c.
That the statute, in this respect, was little more than a declaration of
the common law, appears from _Bracton. l. 5. c. 32._
[Sidenote: Indenture.]
By _12 E. 2. c. 5._ Of returns which shall be made to sheriffs by
bailiffs of such franchises as have full return of the Kings writs, an
indenture shall be made between the bailiff of the franchise by his
proper name, and the sheriff by his proper name. And if any sheriff
change the return so delivered to him by indenture, and thereof be
convicted at the suit of the lord of the franchise, of whom he shall have
received such return, if the lord shall have sustained any damage, or his
franchise be imblemished, and at the suit of the party who shall have
sustained damage by that occasion, he shall be punished on behalf of the
King for his false return, and render to the lord and to the party double
damages.
[Sidenote: Prescription.]
Return of writs may be claimed by prescription as appertaining to a
manor. But more especially may it be claimed as appertaining to an
honour. _Hardres._ 423.
[Sidenote: Escheat,]
Where a man hath _Retorna Brevium_, which liberty comes to the hands of
the King by escheat _vel aliter_, this unity in the King shall not
extinguish the liberty. _Keilwey._ 72.[20]
[Sidenote: A dangerous liberty!]
This liberty of Retorna Brevium (saith C. B. Hale) is a dangerous liberty
for him that hath it; for he is to be responsible for all the defaults of
his bailiffs, as escapes, &c. And if the bailiff do not account for the
collection of the Kings revenue he is responsible for it; 'tis a feather
in his cap, but a thorn in his foot. _2 Vent._ 406.
[Sidenote: Sheriff.]
This liberty though it carries an exemption, yet it doth not exclude, but
that the sheriff may execute writs within it. But then it is a wrong for
which the lord of the liberty may have his action: but in some cases the
sheriff may lawfully do it, as in the case of the King. A _non omittas_,
_&c._ in case of execution of a writ of waste, whereto he is particularly
empowered by the statute, and sometimes where the thing is divided[21].
(By Hale C. B.) _2 Vent._ 406.
[Sidenote: Warrant.]
If an action be brought in a county, and the place where, _&c._ is the
franchise of another who hath return and execution of writs within the
said franchise, yet the writ shall issue to the sheriff, and he ought to
make over a warrant to the bailiff of the franchise to execute the same
writ; and the writ shall not be directed to the bailiff, &c. for he is
not officer to the court. And moreover it shall be intended that all
vills in the county are within the power of the sheriff till the contrary
be made appear by return of the sheriff. _35 H. 6. 42._
To the sheriff the writ must be directed, though it be for a thing done
in a franchise, and he shall send to a [_l._ the] bailiff of the
franchise who shall serve it as a servant to the sheriff[22], and the
sheriff return it _Finch._ 238.
[Sidenote: Service by sheriff.]
And though the sheriff serve an execution in a franchise, yet it is good.
And the lord of the franchise is driven to his action upon the case
against the sheriff, for the sheriff is immediate officer. _Id._ _Ib._
Where the sheriff makes execution in franchise it is good, for he is
immediate officer to the court; otherwise where bailiff makes execution
in the guildable; and the lord of the franchise in the first case shall
have his remedy for infringing the franchise. _11 H. 4. Br. Execution._
32.
[Sidenote: The King party.]
If the sheriff without _Non Omittas_ serve process within liberty or
franchise that hath return of writs it is good. _11 H. 4. 9._ _20 H. 7.
7._ But the lord of the franchise shall have action upon the case against
him. _Fitz. Nat. bre._ 95.[23] But if the King be party the lord hath no
remedy, for the writ for the King is always _Non Omittas_ in law. _41
lib. Ass._ 17. _Cromp. J. P._ 164.[24]
Where the King is party the _venire facias_ shall make mention of _non
omittas_; for where the King is party the sheriff shall not write to the
bailiff of the franchise, but serve the process himself. _41 Ass._ p. 17.
_Br. Fraunches & Liberties_, 18.
The King hath no other minister than the sheriff, and where the King is a
party no franchise shall be allowed. _Fitz. Chal._ 129.
Where the King is party as against felon or otherwise in action, the
franchise shall not take place, but the sheriff ought to enter the
franchise and serve the process, unless this clause _licet fuerimus pars_
be in the charter, in which case it seems otherwise. _38 Ass._ p. 19.
_Br. Fraunches & Liberties_, 31.
If the King grant _returna omnium brevium_, yet he shall not have return
of the summons of the exchequer. _22 Ass._ p. 49. _Br. Patentes_, 32.
[Sidenote: Arrest by sheriff.]
_Per Glynn_ Ch. J. Mich. 1658; if one be arrested by the sheriff of the
county within a liberty, without a _non omittas_, yet the arrest is good;
for the sheriff is sheriff of the whole county, but the bailiff of the
liberty may have his action against the sheriff for entering his
liberty[25]; but upon a _quo minus_, a sheriff may enter any liberty, and
execute it _impune_. _R. S. L._ 116. _cites_ _Pract. Reg._ 72. _Viner,
Franchises_, (_B._) 6.
[Sidenote: _Non omittas_, _Capias utlagatum_, _Quo minus_.]
The sheriff, upon a _non omittas_, _capias utlagatum_, or _quo minus_,
may enter and make an arrest in any franchise. _L. P. R._ 635. _Viner,
Franchises_, (_B._) 6.
[Sidenote: _Non omittas._]
In the county of Suffolk are two liberties, one of St. Edmund Bury, and
the other of St. Ethelred of Ely: suppose a _capias_ comes at the suit of
_A._ to the sheriff of Suffolk, to arrest the body of _B._ the sheriff
makes a mandate to the bailiff of the liberty of St. Ethelred, who makes
no answer; in that case the plaintiff shall have a writ of _non omittas_,
and by force thereof he may arrest the defendant within the liberty of
Bury, although no default was in him [_sci._ in the bailiff of that
liberty.] _5 Rep._ 92.
But this is to be understood of the process of the Kings Bench; for
Common Pleas recites the _capias_, the sheriffs return, that he has made
his mandate to the bailiff, who has given no answer, and then gives the
sheriff power to enter the liberty; but in the Kings Bench, on the
sheriffs return on the _Latitat_, the authority is general, _non omittas
propter aliquam libertatem_, which gives the sheriff power to enter not
only that liberty, but all the liberties within the county: And this
seems to be grounded on the words of the _latitat_, (viz.) _latitat_ and
_discurrit_, so that the defendant is supposed to skulk and run from one
place to another; and therefore the _non omittas_ was made general, that
he might not run from one liberty to another. _Gilb. Hist. C. P._ 24.[26]
[Sidenote: Justice of peace.]
A warrant of a justice of peace to arrest for felony may be executed in a
franchise within the county, for it is the Kings suit, in which a _non
omittas_ is virtually included. _2 Hale P. C._ 116.[27]
[Sidenote: Process.]
By _5 G. 2. c. 2._ § 3., in particular franchises and jurisdictions the
proper officer there shall execute such process [i. e. where cause of
action in superior court is under 10l. in inferior court under 40 s.]
[made perpetual by 21 G. II. c. 3.][28]
[Sidenote: Sheriffs deputy.]
By _13 G. 2. c. 18._ § 6., for the better and more speedy execution of
process within particular franchises or liberties, the sheriff of every
shire, being no city or town made a shire, within which there is any
franchise or liberty, the lord or proprietor whereof is of right intitled
to the return of writs within such franchise or liberty, shall (if
required by any such lord or proprietor) within one month next after such
request made to him for that purpose, nominate and appoint one or more
sufficient deputy or deputies, at the proper costs and charge of such
lord or proprietor, to be resident at some convenient town or place in or
near such franchise or liberty, to be for that purpose appointed by the
lord high chancellor of Great Britain, and the chief justices of his
Majestys courts of Kings Bench and Common Pleas for the time being, or
any one of them, who is and are hereby authorized and impowered to
appoint such convenient town or place as to him or them shall seem meet,
and to settle and direct what costs and charges shall be paid therefore
by such lord or proprietor; and such deputy or deputies shall reside at
such town or place so to be appointed as aforesaid, and shall have
authority in the sheriffs name, and is and are respectively authorized
and impowered to receive and open all such writs and process (the
execution or return whereof doth of right belong to the lord or
proprietor of any such franchise or liberty) and thereupon in the name,
and under the seal of the sheriff, to make and issue out such warrant or
warrants to such lord or proprietor, as by law is requisite, for the due
execution of such writs or process; and every such deputy or deputies is
and are hereby required, upon tender of any such writ or process, to
receive and open the same, and to issue out such warrant thereon, without
delay, in such manner and form as the sheriff himself may or ought to do,
without taking any further or other fee than what is now due and
accustomed for such warrant; upon pain that every such sheriff or deputy
respectively, who shall be guilty of any wilful neglect or default in the
premises shall be liable to be punished for the same, as for a contempt
of one of his Majestys said Courts of Chancery, Kings Bench, or Common
Pleas (as the case shall require), and shall likewise make satisfaction
to the party or parties that shall receive damage thereby.
[Sidenote: _Ca._ and _non om._]
_Note._ It is now usual to take out the _capias_ and _non omittas_
together, without staying for the sheriffs return[29]. _Gilb. Hist. C.
P._ 26.
_Note_, If any of your defendants live within a liberty where the sheriff
may not enter, you must get the sheriff to direct his warrant on your
writ to the bailiff of such liberty, who may execute it; but if the
bailiff of such liberty do not execute it, then you must at the return of
your writ, get the sheriff to return a _mandavi ballivo_ thereon, and
thereupon you make out a writ called a _non omittas_, directed to the
sheriff, and upon that writ the sheriffs officers may, upon the sheriffs
warrant made out thereon, enter and execute the warrant within such
liberty. _1 Instructor Clericalis._ 44.
And _Note_, The usual practice in such case is if the defendant dwells in
the country, to send down a _non omittas_ with the _latitat_ for
dispatch. _Ib._
SCAC. E. 1725.
_L. Digby_ v. _Meech_ et al.
Bill to establish plaintiffs right to the manor, &c. of Sherborn
Castleton in the county of Dorset, to Greenwax fines, &c., and also
poundage fees on executions and _Retorna Brevium_, &c. by virtue of a
grant 14 Jac. 1. The bill was brought against three succeeding sheriffs
of the county, and Templeman, who had been the undersheriff for three or
four years, and as to him to have an account of what poundage fees, &c.
he had received within the liberty: the title set forth by plaintiff was,
that King James I. granted to Sir John Digby (after earl of Bristol),
from him they descended to George, from him to John earl of Bristol, _and
on his death vested in plaintiff_.
It was objected at the hearing that here was not a sufficient title set
forth, it not appearing how the premises vested in plaintiff, whether by
descent, settlement, or how.
And _per tot' cur'_ the bill ought to be dismissed for that reason; the
bill being to establish a right, as well as for an account; and upon this
the cause went off, but plaintiff had liberty to amend his bill.
_Hanbury_, 195.
[18] In the Kings Bench the sheriff returned _Mand' ballivo' Libertatis
de D._ and it was said that he hath not such a franchise, and if it be
inrolled in the chancery that A. hath _retorna brevium_, yet if it be
not inrolled in the exchequer, as the statute of _W. 2. c. 39._ and if
the sheriff return other liberty he shall be punished as a disinheritor
of the Crown by such statute, and the justices may send _certiorari_ out
of chancery to the treasurer, that he bring the roll of liberties in his
hand, and shew it to the justices. _11 E. 4. 4._ _Br. Retorne de
briefe._ 98.
This Roll of Liberties is supposed to be lost; at least the clerks of
the _Treasurers Remembrancers office_, on inquiry there, could give no
account of it; any more than the bag-bearer of the _Kings_ could of the
"little booke," mentioned by Powell to be in the _Kings Remembrancers
office_, "intituled, _Liber de Ball. pro Angl._ of all the bailiwicks
throughout England," which he calls "an ancient booke, made _Anno_ 1180."
_Per Curiam_, where the bailiff makes insufficient return, the sheriff
may return _quod nullum dedit responsum_, for an insufficient return is
as no return; and in _præcipe_ against two, the bailiff returns the one
summoned and the other not, this is no answer, and if the sheriff return
this, he shall be amerceo, but by _Vavisour_ if the bailiff make dubious
return and the sheriff return it over he shall not be amerced, _quære_.
_5 H. 7. 27._ _Br. Retorne de briefe._ 89.
In _Præcipe quod reddat_, to the grand capias the sheriff returned _quod
mandavi ballivo, libertatis_, who returns that he hath taken the land
into the hands of the King, and says nothing that he hath summoned the
tenant. _Martin_, another summons with _non omittas_ shall be awarded,
and the sheriff shall not be amerced, for the bailiff hath not served
the writ; for as much as he had in commandment to do two things, and he
has done but one; and so it is as if he had said nothing either of one
or the other. _Babb_, a _non omittas_ shall not be awarded but where the
bailiff hath not given any return, but here he hath given a return which
is not sufficient, and for this he shall be amerced. _T. 4 H. 6.
[25.]_ _Fitz. Amercement._ 1.
In trespass the sheriff returned the _Capias quod mandavit Ballivo
Libertatis, qui sic respondit quod cepit corpus_; but the bailiff does
not bring in the body; but the defendant would have answered by
attorney, and was not received. And the plaintiff prayed _Sicut alias_
to the sheriff, and _non omittas_. And for that the writ was served he
could have nothing but a writ to the sheriff to distrain the bailiff to
send the body, &c. _27 E. 3. 7._
[19] This _nihil_ is to be understood, not only where nothing at all is
done, but also where the bailiff of the liberty maketh an insufficient
return, for that is _nihil_ in law, and therefore a _non omittas_, &c.
_2 Inst._ 452.
[20] (1.) The King may have liberties by the suppression of abbeys (_32
H. 8._) or by other means. And a liberty shall not be intended to be
extinct, unless it be so shewn, but shall be said to be still in _esse_.
_Cro. Jac._ 242.
When the King grants any privileges, liberties, franchises, &c. which
were privileges, liberties, or franchises in his own hands as parcel of
the flowers of his crown, as _bona et catalla felonum fugitivorum
utlagatorum_ &c. _bona et catalla waviata, extrahur; deodanda, wreccum
maris_, &c. within such possessions, there if they come again to the
King, they are merged in the crown, and he has them again in _Jure
Coronæ_; and if the wreck, or goods waifed, estrays, &c. were appendant
before to possessions, now the appendancy is extinct, and the King is
seised of them in _Jure Coronæ_. But when a privilege, liberty,
franchise or jurisdiction was at the beginning erected and created by
the King, and was not any such flower before in the garland of the
crown, there, by the accession of them again to the crown they are not
extinct nor the appendancy of them severed from the possessions; as if a
fair, market, hundred, leet, park, warren, _et similia_, are appendants
to manors, or in gross, and afterwards they come back to the King, they
remain as they were before, in _esse_, not merged in the crown, for they
were at first created and newly erected by the King, and were not in
_esse_ before, and time and usage have made them appendant. _9 Rep. 25,
h._
[21] Writ issued to the sheriff to enquire of waste, who returned _quod
mandavi ballivo libertatis qui mihi nullum dedit responsum_, and for
this he was amerced, and _sicut alias_ awarded, because by the writ he
is judge and hath power to enter the franchise. _T. 11 H. 4. (81.)_
_Fitz. Retourne del vicount._ 53. But
Note, that sometimes the sheriff is judge, as in redisseisin, waste, and
admeasurement, and the process shall be served by the baily as is said.
_Diversite des Courts._ _Court Baron._
_Ejectione Custodiæ_ [under _W. 2. c. 35._], at the distress with
proclamation the sheriff returned _mandavi ballivo libertatis_, &c.; and
by _Thirning_ and _Markham_, the sheriff shall be amerced, for the
proclamation is to be made by the sheriff by the statute. Therefore
because the distress with proclamation is a thing entire, he ought to
have entered the franchise and served the whole writ himself: and
_Rikhill_ and _Tirwit e contra_ and that he did well, as in a _præcipe
quod reddat_ of land, part in guildable, and part in franchise, the
sheriff shall make precept for parcel, and shall serve the rest himself.
_2 H. 4. 1._ _Br. Ejectione Custodie._ 1.
If a distress with a proclamation be granted, and the defendant hath
nothing but within a franchise, the sheriff shall make proclamations in
the county, and the baily of the liberty shall distrain him. _2 Inst._
442.
Where the issue is of land part gildable and part in franchise, the
panel shall be returned part by the sheriff and part by the bailiff of
the franchise, and they may join [in the return]; and the distress
[shall be] by the sheriff only if the bailiff be slack. _19 H. 6. 48_,
_67_. _Br. Retorne de briefe._ 50.
If assise be brought of tenements in two franchises the sheriff shall
write to each bailiff, and both shall serve. _Abr. Ass._ 92, _b._
Assise was brought of tenements in two vills, one vill was within the
franchise and the other in gildable, and the bailiff of franchise made
the panel, and for this it was challenged; for those of a franchise
cannot have the view by commandment of bailiff of land out of the
franchise, &c. And so the court thought. _H. 18. E. 3._ _quære_, how
the writ shall be served? It seems that the writ shall abate, and that
he shall be put to several writs, and namely where he may sever the
thing, &c. for otherwise it will follow that the bailiff of the
franchise shall never serve a writ, for a man may always put in the
writ, part of the land gildable, &c. _quære_. _Abr. Ass._ 93.
[22] He is not servant to the sheriff, nor is any way subject to him
(having as good authority in his office, and being as ancient an officer
as himself).
Upon an issue the sheriff returned to the _Venire Facias_, and to the
distress, as to 4 jurors he returned the writ served, and as to the
remainder he returned _mandavi ballivo de B. qui nullum_, &c. Fortescue
prayed that the sheriff should be amerced, for no writ may be returned
by two ministers _s._ part by the sheriff and part by the bailiff.
Newton, _e contra_. And afterwards, by advice of all the justices, the
sheriff was amerced. _H 19 H. 6._ _Abr. Ass._ 144. 145.
It was assigned for error that in assize it appeared by the return of
the sheriff, that he had found pledges before himself, and the bailiff
of the franchise, to whom the return belonged, served all the rest of
the writ; and the return adjudged good. _21 H. 7. 14._
[23] _H._ 49 _E._ 3. _B. R. Rot._ 4. _Linc._ proces _per_ attachement
_per billam versus vicecomitem_ directed _al coroner_ for the disturbing
a lord of a liberty. L. C. J. Hales Discourse concerning the Courts of
K. B. and C. P. (Hargraves Tracts, vol. i. p. 363.)
[24] In the _Auctarium Additamentorum_ to Watts's edition of Matthew
Paris is a warrant from the sheriff of Essex and Hertford to the
bailiffs of the liberty of St. Albans, reciting a writ to the sheriff to
summon the knights and freeholders of the said counties, &c. to be
before the Kings commissioner with an express _non omittas_ in case of
the default of the bailiffs of liberties; which proves that the writ for
the King was not at that time (37 H. 3.) a _non omittas_ of itself.
[25] It seems that the sheriff ought to take notice of such a liberty at
his peril, without the party shewing his grant to him but merely upon
his saying that he hath one, because it is a matter of record. _1 Roll
R._ 119. _Town of Derby_ v. _Foxley_.
[26] Rule to shew cause why a writ of _non omittas capias ad
respondendum_, should not be quashed, discharged. The objection to the
writ was, that it recited a mandate to have been issued forth by the
sheriff to the bailiff of a liberty without naming what liberty, but
leaving a blank for the same. The court held the objection to be valid,
and that the proper way to take advantage of the defect is by motion;
but it appearing that bail was put in to this writ before a judge, the
objection now comes too late. _Barnes._ 416.
[27] Where the sheriff serves the process once of a thing local or
permanent, as in _Præcipe_ of land and such like, he cannot after return
_mandavi ballivo_; but _e contra_ of a thing transitory which may
remove. _5 H. 7. 27._ _Br. Ret. de briefe._ 89.
Thus in _Alias Summons_ in Dower the sheriff can't return _mandavi
ballivo_, for he ought to have made this return upon the first writ,
that so the court might have awarded a _non omittas_; but if it relates
to matters transitory, then the sheriff may return _mandavi ballivo_ on
the issuing of the second process, as on an _alias capias_, for the body
might be in the liberty on the issuing of the second process, though it
was in the guildable in the first; and therefore the return of the first
process does not conclude him from returning the liberty to the second
process. _Gilb. Hist. C. P._ 26.
[28] _Urlin_ moved to stay proceedings, the process being served within
the franchise of Bury St. Edmonds, and not by the proper officer,
contrary to the late act of parliament. _Per Cur'_: The act only
preserves and saves the jurisdiction of particular liberties. The person
injured must bring his action, the court cannot stay proceedings.
_Barns._ 404.
[29] How far such a practice is consistent with the rights of the lord
of the liberty or with the law of the land (and particularly with the
act just above recited) is submitted to those whose duty it is to
support both.
In Yorkshire it is usual for the sheriff to direct the warrant as well
to the bailiff of the liberty as to one or more of his own bailiffs, who
may take defendant if found _extra libertatem_. This method is
unobjectionable, it prevents delay and answers all the purposes of a
_non omittas_.
BOOK II.
Of the BAILIFF of a FRANCHISE or LIBERTY.
CHAPTER I.
OF HIS QUALITY.
The bailiff of a franchise or liberty is he who in a free place, or
portion of a county, taken away from the power of the sheriff, executes
the business of the sheriff. _Spelman._
[Sidenote: Minister to the King.]
The bailiff of the franchise is not minister to the sheriff but to the
King. _8 E. 4. 17._
[Sidenote: Officer _per se_.]
The bailiff of a franchise is an officer by himself, and hath not to do
with the sheriff. _21 H. 7. 23._
The bailiff of a liberty is not servant to the sheriff, for the sheriff
cannot make other return but according to that which the bailiff of the
liberty certifies him. _Keilwey_, 89.
[Sidenote: Kings bailiff.]
The Kings bailiff of his manor is immediate officer to the King. _33 H.
6. 29._
The bailiff of a liberty is such an officer as the court will take notice
of. _Pasch. 24 Car. B. R. Q. S. P. R._ 122.