CHAPTER VII.

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.