CHAPTER VI.

OF HIS INDEMNITY AND PROTECTION.

[Sidenote: Arrest, and non-return of writ.]

If the sheriff command the bailiff of the franchise, who arrests the defendant and sends him to the sheriff, if the sheriff return no writ, the bailiff shall not be charged, for the arrest of the bailiff of the franchise was lawful, and it shall be against reason that the non-return of the sheriff should prejudice him. _8 E. 4. 17._ And see also _21 H. 7. 22._ _Keilwey_ 87. 89.

[Sidenote: Mandate.]

If the sheriff write to a bailiff of franchise in such form, _Ballivo libertatis, &c. salutem, mandatum Domini regis recepi in hæc verba_, and rehearse how the King commands by writ to take the body of such a one, where no writ comes to the sheriff, this is a good excuse to the bailiff of the franchise, and the party shall have his remedy against the sheriff. _Dalton. Sheriff._ 112.[51]

[Sidenote: Old bailiff and new bailiff.]

If upon a _fieri facias_ against an administrator, the sheriff makes a warrant to the bailiff of a franchise to execute it, and afterward the bailiff is removed, and another bailiff elected, and afterward the old bailiff returns in his own name to the sheriff that the administrator had not any goods _preterquam_, &c. which is false, and afterward the sheriff makes the return accordingly to the court, yet no action for this false return lies against the old bailiff, for the return ought to be made in the name of the new bailiff, and so the sheriff has accepted a return as of a mere stranger, which is void; and he ought to take conusance of the right ministers of the law, and therefore the old bailiff for this false return is not punishable, but the sheriff. _1 Roll. Abr._ 99.

[Sidenote: False return of sheriff.]

Upon writ to the sheriff he first made warrant to bailiff of liberty, and after to his own bailiff, who arrested the party and suffered him to escape; and then sheriff returned _mandavi ballivo_; upon affidavit of fact sheriff was ordered to attend. And agreed action lay against sheriff for false return as _non est invent._ _&c._ and his amerciaments were estreated. _12 Mod._ 311.

Action upon the case is maintainable against the sheriff for making the return of a bailiff who was not bailiff at the time of the return, and who had not executed the writ. _Moore_, 432.

Rule for the bailiff of the [liberty of the] duchy of Lancaster to return the sheriffs mandate on a _fi. fa._ discharged, the warrant having been directed to officers of plaintiffs nomination, and not to the officers of the bailiff of the [liberty of the] duchy. _Barnes_, 416.

[Sidenote: Escape from gaoler of liberty.]

An attachment of contempt issued forth against defendant, for not bringing Waldrons body into court, pursuant to a peremptory rule; and defendant having been examined upon interrogatories, it was referred to the prothonotary (as usual) to examine whether he had cleared himself of the contempt, or not. The prothonotary reported the matter specially; and the fact appeared to the court to be, that Waldron being confined in the Gatehouse prison, Westminster, for a criminal matter, was, by leave of a judge, charged there with a bailable action, in the following manner: A _capias ad respondendum_ was directed to the sheriff of Middlesex, who made a _mandate_ to the high bailiff of Westminster, and defendant was charged in custody therewith, and afterwards escaped from the keeper of the Gatehouse, which is the prison for the liberty of Westminster, to which prison the high bailiff is obliged to carry his prisoners within 24 hours after arrest. The high bailiff being called upon for a return of the _mandate_, returned _cepi corpus_, and that Waldron remained in the custody of the keeper of the Gatehouse. Both the chief bailiff and the keeper of the Gatehouse are appointed by, and hold their places under, the dean and chapter of Westminster, and both give security to the dean and chapter; but the keeper gives no security to the high bailiff. The Court were of opinion, that the high bailiff had cleared himself of the contempt, and ordered the attachment to be discharged. The high bailiff did every thing in his power to secure the prisoner, and ought not to be criminally punished. _Respondeat superior_ extends to civil matters only. The prosecutor may bring his action for the escape. _Barnes_, 34.

[Sidenote: Escape.]

If prisoner taken by a bailiff of a franchise escapes from the bailiff, the sheriff shall not have action upon the case against him, because he is not chargeable _ouster_, but the bailiff is only chargeable. _1 Roll. Abr._ 98.

J. S. was taken in execution by _Ca. Sa._ by the bailiffs of a liberty in Suffolk, by warrant of the sheriff of the county. The bailiffs before the return of the _Ca. Sa._ brought him to Westminster in the county of Middlesex, and from thence, at the plaintiffs request, carried him to Lambeth in Surrey, where he remained under their custody till the day of the return of the writ, when they delivered him to the Kings Bench according to the writ; this, by the advice of all the justices, was adjudged no escape; for they thought that in whatever county in the way or out of the way to Westminster, the sheriff detains or brings the prisoner, if it be before the return of the writ it is no escape. _Moore_, 299. _Burton_ [_Boyton_] v. _Andrews_. _3 Rep._ 43. _S. C._

If a bailiff of a manor pays the relief of his master to the lord to whom it is due, he shall be allowed this upon his account, though he had no warrant from his master so to do, because this is a casual thing of common course. (_Contra_, of a thing that is not casual of common course.) _41 E. 3. Account. 33._

[Sidenote: Rescous.]

If the Kings bailiff distrain for rent and rescous is made, the bailiff shall have the writ of rescous and not the King. _F. N. B._ 101.

If the sheriff send unto the bailiff of the liberty to levy fines and amercements for the King, and the bailiff distrain, and rescous is made, the lord of the liberty shall have a writ of rescous, for the rescous, the battery, and assault, and loss of service, all in one. _F. N. B._ 101.

If a man sue forth execution, and hath _capias_ directed to the sheriff to arrest the party, and the sheriff make his warrant to the baily of the Kings liberty to arrest him, and he doth arrest him, and others rescue him from the bailiff, he who sued forth the execution shall have the writ of rescous; but yet it seems reasonable that the bailiff shall have a writ of rescous in such case, for some say he shall be chargeable, &c. _F. N. B._ 101.

A warrant was from the sheriff to the bailiff of the 'liberty' of Pomfret, who executed it, and rescue was made, and the bailiff brought the action against the rescuers to recover damages: and it was held that the bailiff may have this action in his own name, to recover damages for this. _Clay._ 149. _Foster_ v. _Legerd_. (_Viner, Rescous. A._ 3.)

[Sidenote: Inquest by the sheriff.]

If bailiff of franchise return certain names to the sheriff, and the sheriff return other names, though the inquest returned by the sheriff shall be taken, yet bailiff shall have action against him. _30 Ass. p._ 5. _Br. Retorne de briefe_. 73.

[Sidenote: Return by _7 & 8 W. 3. c. 32._ § 6.]

By _7 & 8 W. 3. c. 32._ § 6. the return to the justices [directed by this act] shall be a good excuse and bar in law for the sheriff, for such summons and returns [as thereby directed]: and if any action or information shall be brought or prosecuted against any sheriff for such return, the said sheriff may plead the general issue, and give this act in evidence; and if the plaintiff be nonsuited, discontinue his action, or if a verdict be given for the defendant, or a _noli prosequi_ be entered in any information, or a verdict pass for the defendant thereupon, the plaintiff or informer shall pay treble costs, to be awarded by the court in which such action or information was prosecuted, and levyed by usual process. _Note_, that although the word _sheriff_ be alone made use of in this clause, yet it seemeth that the bailiff of the franchise shall in such case be intitled to the full benefit thereof.

[51] This case is printed by Mr. Dalton as an extract in French, and he refers to _10 H. 6. 37._ But there is no such folio in that year. Mr. Dalton has certainly the appearance of having been a very industrious man, but the most gross inaccuracy is perhaps the least of his faults. He is therefore to be read and quoted (if at all) with great caution. And it might not be amiss if the same caution were extended to Master Kitchin, who deserves the title of an authority little better than Mr. Dalton.