OF HIS RESPONSIBILITY AND PUNISHMENT
[Sidenote: Omission of name in return.]
By _12 E. 2. c. 5._ if any sheriff or other bailiff in his returns leave
out his name he shall be grievously amerced to the Kings use.
[Sidenote: False returns.]
By _1 E. 3. st. 1. c. 5._ against the false return of bailiffs of
franchises, which have full return of writs, a man shall have averment,
and recover as well against them as against the Kings sheriff, as well of
too little issues returned as in other cases, so that it fall not in
prejudice of the lords in imblemishment of their franchises. And all the
punishment [shall] fall only upon the bailiffs by punishment of their
bodies if they have not whereof to answer.
An action is maintainable against bailiff of a franchise who makes false
return, and not against the sheriff. _Moore_, 432.
If the bailiff of a franchise makes a false return to the sheriff, and
the sheriff returns it to the court accordingly, an action upon the case
lyes against the bailiff, and not against the sheriff, for no default is
in him. _1 Roll. Abr._ 98. For the sheriff ought to accept the return of
the bailiff if it be sufficient in law, and not to examine the truth of
it. _1 Roll. Abr._ 99.
[Sidenote: Writ _ad distringendum ballivum_.]
_Debt_, the sheriff returned _Capias, Quod mandavi ballivo, &c. qui
respondit quod cepit corpus_, and the person does not come, and the
sheriff was amerced [Q. _For what reason?_] and writ awarded _ad
distringendum ballivum ad habendum corpus, &c._ _47 E. 3. 25._ _Br.
Retorne de briefe._ 24. But yet
[In] _Replevin_ [where] the sheriff returned the _Capias, Quod mandavi
ballivo, qui mihi respondit quod haberet corpus ejus hic ad hunc diem_,
and the body did not come, _non omittas_ was awarded, and not _distringas
ballivum ad habendum corpus_. _38 E. 3. 1._ _Br. Retorne de briefe._ 44.
_Case_; for that upon a Capias directed to him against J. S. he _made a
warrant to a bailiff of a franchise to arrest_ the said J. S. which was
done accordingly, and yet the sheriff returned _non est inventus_.
Resolved _per tot. cur._ that the action well lay; and Anderson said,
that if the sheriff had returned that he had sent to the bailiff of the
liberty, who had given this answer, that he had arrested the body, it had
been good, and the sheriff had been discharged, and the process should
have issued against the bailiff of the liberty to bring in the body.
_Cro. Eliz._ 729.
[Sidenote: Bailiff plaintiff, hath not the body at the day.]
Where sheriff returned _quod mandavi ballivo, &c._ who is plaintiff, if
the bailiff returns _quod cepit corpus_ of the defendant, and hath him
not at the day, &c. the bailiff shall be amerced, and not the sheriff;
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.
[Sidenote: False return for extortion.]
_Capias_, the sheriff returned _mandavi ballivo, & quod ipse cepit
corpus, sed illud hic habere non potest quia languidus est, &c._ And
defendants wife came and said that he is not sick but detained by the
bailiff for extortion, and prayed remedy. Whereupon a writ issued to the
bailiff to return the body, and to appear; and upon examination it was
found that the party was not sick, whereupon the bailiff was committed to
the Fleet to make fine, and the writ against the bailiff was _subpoena_
40l. to appear and bring the body, &c. _11 H. 6. 42._ _Br. Retorne de
briefe._ 123.
[Sidenote: Escape.]
If a writ of execution comes to the sheriff, and he makes mandate to the
bailiff of franchise, who takes him, and after suffers him to escape,
action lyes against the bailiff of the franchise, and not against the
sheriff. _5 E. 4. 1 b. 2._ _Brook, Escape_ 40. _1 Roll. Abr._ 99. _Noy._
27. _Buller. N. P._ 69.
If a man be in prison for execution in a county or in a liberty, the
gaoler cannot bring him out of the county or liberty, unless in special
case; and if he does it the prisoner may have action of false judgment,
unless he has special authority, as by privy seal to be at Westminster,
or the like. _30 H. 6. 6._ _Br. Escape_, _pl._ 44.
If a warrant out of a _Fieri facias_ to levy a debt at the suit of J. S.
be directed to an under-bailiff of a liberty, and he by force thereof
levys the debt, and afterwards conceals the writ, nor makes any
certificate thereof, an action upon the case lyes against the
under-bailiff, because he has made a personal tort. _1 Roll. Abr._ 94.
[Sidenote: Non-return of the warrant.]
If the bailiff of the franchise arrest the party, and do not return the
warrant to the sheriff, action of false imprisonment lyes against him for
the party. _Keilwey_, 86, _b._[52]
Eyres sued a writ out of _C. B._ _versus_ Smith, directed to the sheriff
of York, who sent a warrant to Simpson, the bailiff of the liberty of
Pomfret, who did not return the writ [warrant]: upon which he was amerced
50l. (_viz._ time after time) and that was estreated into the exchequer:
afterwards Eyres and Smith agreed, and upon producing a certificate from
the attorney for the plaintiff that the debt was satisfied, these
amerciaments were discharged upon motion to the barons. _Note_, There
ought to be a constat of the estreats, and, as the clerks said, the court
uses not to discharge the amerciaments, but 'allows' you to compound
them. _1 Salk._ 54.
Rule made for an attachment of contempt against the bailiff of the
liberty of Holderness, in the county of York, for not returning a
_mandate_ made by the sheriff, on an attachment of privilege, pursuant to
a peremptory rule to return the same within six days notice, without any
return of a _mandavi ballivo_, antecedent to the said peremptory rule; on
an affidavit of service of that rule, and an affidavit of searching the
sheriff's office, after the expiration of the six days, and that the
_mandate_ was not returned; all the officers present reporting this to be
the practice. _Barnes_, 35.
Though by agreement between a bailiff of a franchise and his deputy, the
deputy is restrained to serve process beyond such a sum, yet if he serves
process of a greater sum without other warrant, and after levies the
money, the bailiff shall be chargeable. _Litt._ 33. _Viner, Actions
[Case. Disceit.] F. c. 5._
[Sidenote: Escape of felon.]
If the bailiff of a franchise that hath a gaol, hath the custody of a
felon, he is chargeable for his escape, and not the sheriff or his
gaoler. _1 Hale P. C._ 595.
[Sidenote: King to have fines on bailiff.]
[Sidenote: Amerciaments for insufficient returns.]
By _27 H. 8. c. 24._ § 9. the King, his heirs and successors, shall have
all manner of fines, issues, amerciaments and forfeitures that shall be
lost, forfeit or assessed by or upon any stewards, bailiffs or other
ministers or officers of any franchises or liberties, for non-execution,
mis-execution or insufficient returns of such writs, warrants, precepts
or other process, which to them or to their deputies shall be directed,
or for any contempt or other misdemeanor whatsoever it be, concerning
their offices, in and for the due execution or administration of justice.
And the amerciaments for insufficient returns of writs or other process
made by stewards or bailiffs of liberties or franchises, having returns
of writs and execution of the same, shall be put and set upon the heads
of such stewards or bailiffs, and not upon the sheriffs[53].
[Sidenote: Acts against sheriffs extended to bailiffs.]
By § 14. every statute and act theretofore made and being in force
against sheriffs, their undersheriffs, bailiffs or other ministers, for
making or returning of panels or juries, or for due execution or serving
of any writs or other process, or for taking of fees, or for reformation
of extortions, or for any other thing or things concerning their offices,
and all pains and penalties contained in every such statute shall be
extended to all stewards, bailiffs and other ministers and officers of
liberties and franchises having returns of writs and executions thereof,
in like manner, form and condition as they extend to the sheriffs, their
undersheriffs, bailiffs or other ministers. (But by § 15. this article
not to be prejudicial to any steward, bailiffs of franchises or to their
deputies or clerks for exercising and occupying their offices above one
year.)
[Sidenote: Returning persons not summoned.]
By _27 Eliz. c. 6._ § 3. if any sheriff, undersheriff, bailiff or other
minister do return any person or persons to be summoned to appear in any
jury, wherein he shall for default of his appearance lose or forfeit any
issues, where in truth such person shall not be lawfully summoned, the
same sheriff, &c. shall forfeit, lose and pay unto the said person or
persons so returned double the value of the issues by such juror or
jurors lost or forfeited for his [or their] default of appearance.
[Sidenote: Taking money, _&c._ for not returning jurors.]
By § 4. if any sheriff, &c. or any bailiff of franchise, shall receive,
take, or have by himself or by any other, any sum of money, reward or any
other profit, directly or indirectly, or do take any promise, make any
agreement, or assent to have any sum of money, reward or other profit,
directly or indirectly, of any person or persons, for the sparing, not
warning, or not returning of any person to be sworn as juror, for the
trial of any issue joined or to be joined in any of the Queens Majestys
courts [of K. B. C. P. or E.], or before any justices, every sheriff,
_&c._ or bailiff of franchise so offending, to forfeit for every such
offence the sum of 5l. (half to the Queen, and half to the person suing.)
[Sidenote: Offences against _27 Eliz. c. 12._]
By _27 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.
[Sidenote: Summoning persons contrary to _7 & 8 W. 3. c. 32._]
By _7 & 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 of
_oyer_ and _terminer_, 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 of _non 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.
[Sidenote: Summoning persons contrary to _3 G. 2. c. 25._ § 3.]
By _3 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 or _nisi prius_ or 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 or _nisi prius_ or 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.
[Sidenote: Wilful transgression contrary to _3 G. 2. c. 25._ § 4.]
By § 4. if any sheriff shall wilfully transgress [in returning any
persons as jurors to serve on trials at any assizes or _nisi 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, or _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
every such offender as he shall think meet, not exceeding 5l. for any one
offence.
[Sidenote: Wilful transgression contrary to _3 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.
[Sidenote: Offences against _32 G. 2. c. 28._]
By _32 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 liable unto 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.
[Sidenote: Account.]
By _Stat. 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.
[Sidenote: 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. (_cites_ _10 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.