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.