CHAPTER IX.

PLEADINGS.

[Sidenote: 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. and _Br. Bailie_. 2.

[Sidenote: Patent.]

[Sidenote: Duchy.]

[Sidenote: 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.

[Sidenote: Corporation.]

Bailiffs of a corporation (in avowry for beasts taken _damage 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.

[Sidenote: Distress.]

Bailiff who distrains ought to shew in what right he distrains. _7 H. 4.

28._ _Br. Distresse_, 78.

[Sidenote: Distress for amerciament.]

To bailiff justifying distress for amerciament, it sufficeth to take

conusance of the presentment and no more and _non refert_ as 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 plead

_presentatum fuit_ without averring the fact, for _non refert_ as 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._

[Sidenote: 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. and _vide_ _Lane_, 55.

[Sidenote: 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 [under _23 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 as _capital' ballivus_,

but yet by the whole court it was held good; for otherwise the defendant

might have craved _oyer_, and have [had] it entered _in hæc verba_, and

then have pleaded the statute of _23 H. 6._ that it was taken _colore

officii_, but now it shall be intended good upon the demurrer to the

declaration. And _Ellis, 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.

[Sidenote: Inferior court.]

Bailiff of an inferior court the process whereof he executes, must shew

the jurisdiction of that court in pleadings. _1 Keble_, 53.

[Sidenote: Trial.]

Cary bailiff of Westminster _v._ Buckhurst for entering his liberty and

executing a _fi. 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._

[Sidenote: Tort.]

Where a bailiff is charged directly with a tort, it ought to be shewn

that he is bailiff of a liberty, who has _Returna Brevium_. _Comyns_, 379.

[Sidenote: 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; because otherwise no colour to charge him, and therefore

ought to be specially shewn. _Cro. Car._ 330.

[Sidenote: Pernor.]

[Sidenote: Quo warranto.]

Against a _pernor_ the plaintiff need not shew how he claims the

privilege of return of writs; but in a _quo warranto_ where the defendant

must make a title he ought to shew it. _Hardres_, 423.

[Sidenote: Return of the writ.]

Bailiff of a liberty in justification need not shew the return of the

writ. _Cro. Car._ 447.

[Sidenote: Sheriffs return.]

_Debt_, to the _capias_ the sheriff returned _non 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 of _nulla bona_ upon a

_fieri 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? and _per 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. See _36 Hen. 6. 40 [1.]_ _L. Raym._

184.

[Sidenote: Mandate.]

Upon a demurrer, Powel said that the plea was naught, because it sets

forth a mandate to the bailiff of the liberty, and did not shew that it

was under the hand and seal of the sheriff. _2 Vent._ 193. But see _1

Ventris_, 46. that on motion to quash a return of a rescous, because it

was _mandavi ballivis_, who took him _virtute warr' præd'_, and it was

said, _mandavi_ did not imply that it was in writing, the exception was

disallowed by the court.[55]

[Sidenote: 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 the _hand_ of

the sheriff.

_Nota_, that _mandavi_ does not mean, and of course should not be

translated, _I have commanded_, but _I have sent to_. The sheriff cannot

_command_ the bailiff of the franchise, having no sort of authority over

him in any case whatever.

APPENDIX.

No. I.

CAPIAS BILL.

_Middlesex._ The sheriff is commanded that he take _A. B._ if he may be

found in his bailiwick, and him safely keep, so that he may have his body

before the lord the King, on Wednesday next after fifteen days from the

day of Easter, to answer _C. D._ gentleman, of a plea of trespass; and

also to a bill of the said _C._ against the aforesaid _A._ for one

hundred pounds of debt, according to the custom of the court of the said

lord the King, before the King himself to be exhibited, and that he have

there then this precept.

No. II.

WARRANT TO THE BAILIFF OF THE LIBERTY.

To the bailiff of the liberty [of the Lord the King] [of his duchy of

_L._] of _E._

_Middlesex._ By virtue of the Kings writ issued out of his Majestys Court

of Kings Bench at Westminster, to me directed, I command you that you

take _A. B._ if he may be found in your liberty and him safely keep, so

that you may have his body before the lord the King, on Wednesday next

after fifteen days from the day of Easter, to answer _C. D._ gentleman of

a plea of trespass; and also to a bill of the said _C._ against the

aforesaid _A._ for one hundred pounds of debt, according to the custom of

the court of the said lord the King, before the King himself to be

exhibited. Dated the ---- day of ---- 17--.

_R._ (the attorneys name.)

Oath for 59l. and upwards.

Before you arrest the defendant, beware he is not an ambassador or

servant to an ambassador, or in some other way priviledged or protected.

Precept signed ---- inst.

_F. G._ } Sheriff.

_H. I._ }

No. III.

BAILIFFS WARRANT TO HIS UNDER-BAILIFFS.

_J. K._ esquire, bailiff of the liberty of [the lord the King] of _E._ in

the county of Middlesex, to _L. M. N. O._ and _John Doe_, my deputies,

greeting. By virtue of a precept in writing, under the seal of the

sheriff of the said county, to me directed, I command you and every of

you jointly and severally, that you, some or one of you take _A. B._ if

he shall be found in my bailiwick, and him safely keep, so that I may

have his body before the lord the King, on Wednesday next after fifteen

days from the day of Easter, to answer _C. D._ gentleman of a plea of

trespass; and also to a bill of the said _C._ against the aforesaid _A._

for one hundred pounds of debt, according, &c. to be exhibited. Dated the

---- day of ---- 17--.

_R._

By the same bailiff.

Before you arrest, &c. (_as above_.)

Oath for 59l. and upwards.

Precept signed ---- inst.

No. IV.

CHIEF BAILIFFS RETURN.

To _F. G._ and _H. I._ esquires, sheriff of the county of Middlesex.

_J. H._ esquire, bailiff of the liberty [of the lord the King] of _E._ in

the said county, doth hereby certify and return, that by virtue of a

warrant in writing under the seal of the said sheriff to him the said

bailiff directed, he hath taken the body of _A. B._ which he is ready to

have before the lord the King, (_&c._ _as in the warrant_) as by the said

warrant he is commanded. (_Or thus_: that _A. B._ whom, _&c._ _See the

indenture post._)

By the same bailiff.

No. V.

Form of an indenture of return between the bailiff of a liberty and the

sheriff, according to the statute of York[56].

This indenture made, &c. between _J. K._ esquire, bailiff of the liberty

of the lord the King of _E._ in the county of _M._ of the one part, and

_F. G._ and _H. I._ esquires, sheriff of the said county, of the other

part, witnesseth, that the said bailiff hath certified and returned unto

the said sheriff, that by virtue of a certain warrant in writing under

the seal of the said sheriff to him the said bailiff directed, he the

said bailiff hath taken the body of _G. H._ gentleman, which he will have

ready before the lord the King at Westminster, at the day therein

contained. _Or thus_: which he hath delivered to the said sheriff. _Or

thus_: that _G. H._ gentleman, whom the said bailiff was lately, by a

certain warrant in writing, under the seal of the said sheriff, to him

the said bailiff directed, commanded by the said sheriff to arrest, is

not found in his bailiwick. (_And so of other returns_). In witness, _&c._

No. VI.

SHERIFFS RETURN.

By virtue of this writ to me directed, I have commanded _J. K._ esquire,

bailiff of the liberty [of the lord the King] of _E._ in the county of

Middlesex, who hath the full return of all writs, and the execution

thereof within the liberty aforesaid, and to whom the execution of this

writ doth wholly belong to be done, for that no execution in any other

place in my bailiwick out of the said liberty could be made, which said

bailiff answereth that he hath taken the body of the within named _A. B._

which he hath ready at the time and place within mentioned. _Or thus_:

that the within named _A. B._ is not found in his bailiwick. _Or thus_:

who hath given me no answer.

No. VII.

NON OMITTAS.

George the third, by the grace of God, of Great Britain, France and

Ireland, King, defender of the faith, and so forth. To the sheriff of

Middlesex, greeting: We command you that you omit not by reason of any

liberty of your county, but that you take _A. B._ if he may be found in

your bailiwick, and him safely keep, so that you may have his body before

us on ---- next after five weeks of Easter, to answer _C. D._ gentleman,

of a plea of trespass and also to a bill of the said _C._ against the

aforesaid _A._ for one hundred pounds of debt, according to the custom of

our court, before us to be exhibited, and have you then there this writ.

Witness, Lloyd Lord Kenyon at Westminster, the ---- day of ---- in the

29th year of our reign.

[56] The 'compiler' not finding an example of this indenture in any

book, has been tempted to frame something resembling what he conceives

it has been. It is, however, more for curiosity than use, as the bailiff

seems completely deprived of the benefit of the statute by the modern

stamp acts. The effect may nevertheless be attained by a simple

memorandum as follows: BE IT REMEMBERED, that _J. K._ esquire, bailiff

_&c._ hath certifyed and returned unto _F. G._ and _H. I._ sheriff,

_&c._ that by virtue, _&c._ Witness the hands of the said bailiff and

sheriff, the ---- day of ---- 1790.

FINIS.

Printed by A. Strahan, Law Printer to His Majesty,

Printers-Street, London.

The Office of Bailiff of a Liberty · 第 9 / 9 章