OF HIS POWER AND CAPACITY; _i. e._ WHAT HE MAY OR MAY NOT DO OR BE.
[Sidenote: Steward.]
A bailiff may be steward of the same manor; for they may well stand both
together. (_29 H. 8._ in _Bro._) _Cro. Jac._ 178.
[Sidenote: Deputy.]
Bailiff of a liberty may well have a deputy. _Cro. Jac._ 242.[32]
[Sidenote: Lease of land.]
Bailiff of lord may lease the land, and good, at will, for he is
accountable, and debt lies for the lord. _2 E. 4. 4._ _Br. Bailie_, 32.
_Lease_, 34.
[Sidenote: Rent.]
But if he reserve no rent the lease is void. _1 Roll. Rep._ 258.
[Sidenote: Lease of piscary.]
Bailiff of a manor may lease the piscary for years. _3 H. 4 12b._ _1 Roll
Abr._ 339.
[Sidenote: Lease of manor.]
Bailiff cannot make lease of the manor, nor of parcel of the manor,
without especial command for that purpose. _M. 8 E. 4. 13._ _Fitz.
Bayllyff._ 3. _Br. Bailie_, 41.
[Sidenote: Lease of land.]
A bailiff cannot by any usage make lease of the land of his master [for]
an estate of freehold. _19 Ass._ 9. _1 Roll. Abr._ 339.
[Sidenote: Payments.]
Bailiff of a manor may pay rents issuing out of the manor, and shall have
allowance, but _e contra_ where he pays debts of the lord due by contract
or obligation, for this is out of his power. _4 H. 7. 14._ _Br. Bailie._
27.
[Sidenote: Cutting trees, &c.]
Bailiff may justify cutting the great trees for repair of a house, or the
covering of it as it was before, but not with more costly covering, and
the same law is of amending pale, hedge, or such like, without command of
his lord; but he cannot cover with tile what was before thatch, nor make
new house, nor make pale where hedge was before, unless by special
commandment of his master. _12 H. 7. 25._ _Br. Baillie_, 42. & _vide
plenius Trespas._ 288.
[Sidenote: Licence to walk over ground.]
A bailiff may give licence to another to walk over the ground, for this
is a trespass to the possession only, and the bailiff hath the
disposition of the profits of the possession. (_dub._) _1 Roll. Abr._ 339.
[Sidenote: Damage feasant.]
A bailiff of a manor may himself or command another to take beasts
_damage feasant_ on the land, for he hath the care of all things within
the manor. _1 Roll. Abr._ 339.
[Sidenote: General acts.]
He may do any thing for his masters benefit, but not to his prejudice
without his assent. _Cro. Jac._ 178.
And therefore he cannot give seisin of rent, nor exchange the lords land.
(_41 E. 3. 26_) _Cro. Jac._ 178.
[Sidenote: Distress for amerciament.]
Bailiff without special warrant from the steward cannot distrain for
amerciament in a leet. _Moore_, 607. 574.
_Popham_ said, that defendant as bailiff of the manor cannot distrain for
amerciament by reason of his office without an especial warrant from the
steward or lord, no more than a sheriff may levy amerciaments of _B. R._
without warrant. But _Gawdy_, _e contra_, that he may distrain for lawful
amerciaments by reason of the office. _Cro. Eliz._ 698.
Bailiff cannot distrain _ex officio_ for amerciaments. _Cro. Eliz._ 748.
Bailiff cannot distrain for amerciament by command of the lord of the
manor, nor otherwise than by virtue of a precept directed to him by the
steward of the court. _Carth._ 75.[33]
[Sidenote: Arrest.]
Bailiff of a franchise which hath _Retorna Brevium_ cannot arrest a man
without warrant to him made by the sheriff upon the writ in his hands.
_Keilwey_, 86 _b._[34]
[Sidenote: Delivery of prisoner.]
Bailiff of a liberty may deliver his prisoner to the sheriff without more
circumstance; as he may be discharged by his parol from keeping him any
longer. _Cro. Car._ 447.[35]
[Sidenote: Process.]
Bailiff of a franchise cannot execute a process within his franchise, but
by the precept of the sheriff. _29 E. 3. 42._ _Coron._ 462. _2 Hale P.
C._ 68.[36]
[Sidenote: Writ of inquiry.]
Case, judgement by _nil dicit_, writ of inquiry of damages to the sheriff
of Norfolk, who returns a _mandavi ballivo_, and sets down an inquisition
before bailiff and 40l. damages. Upon writ of error, agreed by all the
judges that the return was insufficient, for it was apparently untrue,
and against law, because the warrant was directed to the sheriff himself
to be executed in any part of the shire, and no venue contained in this
inquest of office, as there is in other writs which intitles the bailiffs
of liberties. But yet the court would not reverse the judgement, because
there were divers of the like both in the K. B. and C. P. especially in
Suffolk and Norfolk in later times. _Hobart._ 83.
[Sidenote: _Elegit._]
Bailiff of a liberty may make an inquisition and extent upon an _Elegit_
by warrant from the sheriff, and shall deliver the moiety, and not the
jury. _Cro. Car._ 319.
[Sidenote: Bail-bond.]
Bailiff of a franchise [under _23 H. 6. c. 9._] has power to take a bail
bond, and must take it to himself, and by the name of his office.
_Comyns._ 380.
Bailiff of a franchise may take bond in sheriffs name. _3 Keble_, 71.
117. 125.
[Sidenote: Waiver of franchise.]
Baily of hundred[37] may waive his franchise and arrest as sheriffs
baily[38]. _3 Keble_, 71.
[Sidenote: Capias against two.]
Capias or distress against two, sheriff may serve as to one and bailiff
as to the other. _31 H. 6. 13._
Where process issues, and the sheriff or bailiff is plaintiff, yet he may
serve the process; and the sheriff is not bound to take conusance if the
bailiff be plaintiff or not, for it may be another of the same name. _36
H. 6. 1._ _Br. Retorne de Briefe._ 65.[39]
By _2 E. 3. c. 3._ Lords of franchises, and their bailiffs in the same,
shall have power to execute this act; which prohibits all men, except the
Kings servants in his presence, and his ministers in executing his
precepts, &c. from coming before the Kings justices, or other the Kings
ministers doing their office, with force and arms, or bringing force in
affray of the peace, or going or riding armed by night or by day in
fairs, markets, or in the presence of the justices or other ministers, or
in any part elsewhere, upon pain to forfeit their armour to the King, and
their bodies to prison to the Kings pleasure.
[Sidenote: Attorney.]
By _4 H. 4. c. 19._, no steward, bailiff or minister of lords of
franchises which have return of writ shall be attorney in any plea within
the franchise or bailiwick whereof he is such officer or minister.
[32] And such deputy it should seem ought to be made by writing (_9
Rep._ 51, b.). Though it is said _21 H. 7. 37._ that the sheriff or a
steward may make deputy without deed.
[33] It is an old rule of the duchy court that the bailiffs of the
liberties of the duchy may distrain for fines and amerciaments for the
King, and keep the same fifteen days, and if the party distrained refuse
to pay his fine or amerciament, then the bailiff may sell the same,
unless the party distrained will enter into bond to pay the said fine or
amerciament at a day prefixed in the duchy court, or else shew good
cause; but in this case there is no replevy to be granted against the
King. And all this it seemeth the bailiff shall do _ex officio_. The
fines and amerciaments within the liberties of the duchy are, however,
usually levyed by writ of _levari facias & capias_ out of the duchy
court. And,
By Keble, precept to bailiff by nude parol is as effectual in court
_Baron_ as by writing, because the trial shall be all _per pais_ and not
by the record: for all is but matter _in fait_. _Quod fuit concessum._
_16 H. 7. 14._
[34] _Per_ Levinz serjeant. In fact the sheriffs make no warrants to the
bailiffs of liberties, but they only send the writ to them; and they
execute it upon some general warrant, which they have from the sheriffs
to execute all writs according to the agreement between the sheriffs and
bailiffs. But (_per curiam_) this general warrant serves for a warrant
to every particular case, for there must be a warrant in writing,
because a command by parol to the bailiff of a liberty is not
sufficient, _1 L. Ray._ 190. _Hammon_ v. _Jermyn_.
_N. B._ This assertion of the learned serjeant, though founded it is
possible on some instance within his knowledge, can never be understood
as true with respect to general practice.
[35] Bailiff of a liberty arrested the party, and delivered him to the
sheriffs deputy, from whom he was rescued, and judgement for the
plaintiff. _Burgh_ v. _Appleton, Sheriff of Essex_, cited _Cro. Jac._ 242.
See the Pleadings _Declarations in the Upper Bench_, 50. See also c. vi,
(pl. 1.) c. ix (fo. 50.)
But in _Boothman_ v. _Earl of Surry_, _T. 27 G. 3. B. R._ Defendant
being bailiff of the liberty of Hallamshire, in the county of York took
his prisoner to York jail and there delivered him into the custody of
the sheriff, and upon action of debt brought against him for an escape,
judgement for the plaintiff. _N. B._ Neither of the cases in Croke was
cited by defendants council.
[36] In the _Register_ are divers examples of original writs directed to
bailiffs of liberties: as for instance; writs of right patent, writs _de
warrantia diei_, writs of trespass, writs of _supersedens_, writs _de
cartis reddendis_, writs _de attornato pro custode_, writs _de attornato
pro secta facienda_, writs _de statuto_: The duchy court constantly
issues writs of _levari facias_ to bailiffs of the duchy liberties; in
all these cases the bailiff is immediate officer to the court, and hath
nothing to do with the sheriff, contrary to the argument in _Skin._ 413,
and _vide_ _F. N. B._ _passim_.
[37] This must be understood of a hundred in fee with _retorna brevium_
in the hands of a private person, of which there are several instances;
every other bailiff of hundred being a mere servant to the sheriff. And
note, that, where a man is _bailiff of fee_ in a county (_i. e._ a
bailiff itinerant, who hath the execution only of writs within the
county or hundred in fee) the sheriff shall not write to him as to
_bailiff of franchise_, and for his act _non omittas_ shall not issue,
nor shall he make mention of him in his return. _27 Ass._ p. 65. _Br.
Retorne de briefe_, 69.
[38] The sheriff of a county made a warrant _ballivis suis_ to arrest
the body of such a man, and the bailiffs of the liberty return a
rescous; and exception was taken to it, because the warrant was
_ballivis suis_, and the return was made by those who were not his
bailiffs; and it was adjudged good, for the liberty might be within his
bailiwick, and so are all the precedents. _March._ 25.
[39] But the defendant himself shall never take advantage of a liberty,
as if the bailiff of a liberty be defendant in any action, and process
of _Cap'_ or _Feri Fiac'_ comes to the sheriff against him, the sheriff
shall execute the process against him; for a liberty is always for the
benefit of a stranger to the action. _5 Rep._ 92.