CHAPTER II.

OF THE LIBERTY OF _Retorna Brevium_, OR RETURN OF WRITS.

[Sidenote: Roll of Liberties.]

[Sidenote: _Non omittas._]

By _W. 2. c. 39._ The treasurer of the exchequer shall deliver in a roll all the liberties in all shires that have return of writs. And if the sheriff answer that he hath made return to the bailiffs of any other liberty than is contained in the said roll, the sheriff shall be forthwith punished as a disheritor of the King and his crown[18]. And if peradventure he answer that he hath returned the writ to the bailiffs of some liberty that indeed hath return who hath done nothing therein[19], the sheriff shall be commanded that he shall not omit by reason of the aforesaid liberty, but that the Kings precept shall be executed; and that he make known to the bailiffs to whom he returned the writ that they be at a day contained in the writ to answer why they have not made execution of the Kings precept. And if they come at the day and acquit themselves that return of the writ was not made to them, the sheriff shall be forthwith condemned to the lord of the same liberty, and likewise the party grieved by the delay in restitution of damages. And if the bailiffs come not at the day, or come and do not acquit themselves in manner aforesaid, in every judicial writ, so long as the plea endureth, the sheriff shall be commanded that he omit not because of the liberty, &c.

That the statute, in this respect, was little more than a declaration of the common law, appears from _Bracton. l. 5. c. 32._

[Sidenote: Indenture.]

By _12 E. 2. c. 5._ Of returns which shall be made to sheriffs by bailiffs of such franchises as have full return of the Kings writs, an indenture shall be made between the bailiff of the franchise by his proper name, and the sheriff by his proper name. And if any sheriff change the return so delivered to him by indenture, and thereof be convicted at the suit of the lord of the franchise, of whom he shall have received such return, if the lord shall have sustained any damage, or his franchise be imblemished, and at the suit of the party who shall have sustained damage by that occasion, he shall be punished on behalf of the King for his false return, and render to the lord and to the party double damages.

[Sidenote: Prescription.]

Return of writs may be claimed by prescription as appertaining to a manor. But more especially may it be claimed as appertaining to an honour. _Hardres._ 423.

[Sidenote: Escheat,]

Where a man hath _Retorna Brevium_, which liberty comes to the hands of the King by escheat _vel aliter_, this unity in the King shall not extinguish the liberty. _Keilwey._ 72.[20]

[Sidenote: A dangerous liberty!]

This liberty of Retorna Brevium (saith C. B. Hale) is a dangerous liberty for him that hath it; for he is to be responsible for all the defaults of his bailiffs, as escapes, &c. And if the bailiff do not account for the collection of the Kings revenue he is responsible for it; 'tis a feather in his cap, but a thorn in his foot. _2 Vent._ 406.

[Sidenote: Sheriff.]

This liberty though it carries an exemption, yet it doth not exclude, but that the sheriff may execute writs within it. But then it is a wrong for which the lord of the liberty may have his action: but in some cases the sheriff may lawfully do it, as in the case of the King. A _non omittas_, _&c._ in case of execution of a writ of waste, whereto he is particularly empowered by the statute, and sometimes where the thing is divided[21]. (By Hale C. B.) _2 Vent._ 406.

[Sidenote: Warrant.]

If an action be brought in a county, and the place where, _&c._ is the franchise of another who hath return and execution of writs within the said franchise, yet the writ shall issue to the sheriff, and he ought to make over a warrant to the bailiff of the franchise to execute the same writ; and the writ shall not be directed to the bailiff, &c. for he is not officer to the court. And moreover it shall be intended that all vills in the county are within the power of the sheriff till the contrary be made appear by return of the sheriff. _35 H. 6. 42._

To the sheriff the writ must be directed, though it be for a thing done in a franchise, and he shall send to a [_l._ the] bailiff of the franchise who shall serve it as a servant to the sheriff[22], and the sheriff return it _Finch._ 238.

[Sidenote: Service by sheriff.]

And though the sheriff serve an execution in a franchise, yet it is good. And the lord of the franchise is driven to his action upon the case against the sheriff, for the sheriff is immediate officer. _Id._ _Ib._

Where the sheriff makes execution in franchise it is good, for he is immediate officer to the court; otherwise where bailiff makes execution in the guildable; and the lord of the franchise in the first case shall have his remedy for infringing the franchise. _11 H. 4. Br. Execution._ 32.

[Sidenote: The King party.]

If the sheriff without _Non Omittas_ serve process within liberty or franchise that hath return of writs it is good. _11 H. 4. 9._ _20 H. 7. 7._ But the lord of the franchise shall have action upon the case against him. _Fitz. Nat. bre._ 95.[23] But if the King be party the lord hath no remedy, for the writ for the King is always _Non Omittas_ in law. _41 lib. Ass._ 17. _Cromp. J. P._ 164.[24]

Where the King is party the _venire facias_ shall make mention of _non omittas_; for where the King is party the sheriff shall not write to the bailiff of the franchise, but serve the process himself. _41 Ass._ p. 17. _Br. Fraunches & Liberties_, 18.

The King hath no other minister than the sheriff, and where the King is a party no franchise shall be allowed. _Fitz. Chal._ 129.

Where the King is party as against felon or otherwise in action, the franchise shall not take place, but the sheriff ought to enter the franchise and serve the process, unless this clause _licet fuerimus pars_ be in the charter, in which case it seems otherwise. _38 Ass._ p. 19. _Br. Fraunches & Liberties_, 31.

If the King grant _returna omnium brevium_, yet he shall not have return of the summons of the exchequer. _22 Ass._ p. 49. _Br. Patentes_, 32.

[Sidenote: Arrest by sheriff.]

_Per Glynn_ Ch. J. Mich. 1658; if one be arrested by the sheriff of the county within a liberty, without a _non omittas_, yet the arrest is good; for the sheriff is sheriff of the whole county, but the bailiff of the liberty may have his action against the sheriff for entering his liberty[25]; but upon a _quo minus_, a sheriff may enter any liberty, and execute it _impune_. _R. S. L._ 116. _cites_ _Pract. Reg._ 72. _Viner, Franchises_, (_B._) 6.

[Sidenote: _Non omittas_, _Capias utlagatum_, _Quo minus_.]

The sheriff, upon a _non omittas_, _capias utlagatum_, or _quo minus_, may enter and make an arrest in any franchise. _L. P. R._ 635. _Viner, Franchises_, (_B._) 6.

[Sidenote: _Non omittas._]

In the county of Suffolk are two liberties, one of St. Edmund Bury, and the other of St. Ethelred of Ely: suppose a _capias_ comes at the suit of _A._ to the sheriff of Suffolk, to arrest the body of _B._ the sheriff makes a mandate to the bailiff of the liberty of St. Ethelred, who makes no answer; in that case the plaintiff shall have a writ of _non omittas_, and by force thereof he may arrest the defendant within the liberty of Bury, although no default was in him [_sci._ in the bailiff of that liberty.] _5 Rep._ 92.

But this is to be understood of the process of the Kings Bench; for Common Pleas recites the _capias_, the sheriffs return, that he has made his mandate to the bailiff, who has given no answer, and then gives the sheriff power to enter the liberty; but in the Kings Bench, on the sheriffs return on the _Latitat_, the authority is general, _non omittas propter aliquam libertatem_, which gives the sheriff power to enter not only that liberty, but all the liberties within the county: And this seems to be grounded on the words of the _latitat_, (viz.) _latitat_ and _discurrit_, so that the defendant is supposed to skulk and run from one place to another; and therefore the _non omittas_ was made general, that he might not run from one liberty to another. _Gilb. Hist. C. P._ 24.[26]

[Sidenote: Justice of peace.]

A warrant of a justice of peace to arrest for felony may be executed in a franchise within the county, for it is the Kings suit, in which a _non omittas_ is virtually included. _2 Hale P. C._ 116.[27]

[Sidenote: Process.]

By _5 G. 2. c. 2._ § 3., in particular franchises and jurisdictions the proper officer there shall execute such process [i. e. where cause of action in superior court is under 10l. in inferior court under 40 s.] [made perpetual by 21 G. II. c. 3.][28]

[Sidenote: Sheriffs deputy.]

By _13 G. 2. c. 18._ § 6., for the better and more speedy execution of process within particular franchises or liberties, the sheriff of every shire, being no city or town made a shire, within which there is any franchise or liberty, the lord or proprietor whereof is of right intitled to the return of writs within such franchise or liberty, shall (if required by any such lord or proprietor) within one month next after such request made to him for that purpose, nominate and appoint one or more sufficient deputy or deputies, at the proper costs and charge of such lord or proprietor, to be resident at some convenient town or place in or near such franchise or liberty, to be for that purpose appointed by the lord high chancellor of Great Britain, and the chief justices of his Majestys courts of Kings Bench and Common Pleas for the time being, or any one of them, who is and are hereby authorized and impowered to appoint such convenient town or place as to him or them shall seem meet, and to settle and direct what costs and charges shall be paid therefore by such lord or proprietor; and such deputy or deputies shall reside at such town or place so to be appointed as aforesaid, and shall have authority in the sheriffs name, and is and are respectively authorized and impowered to receive and open all such writs and process (the execution or return whereof doth of right belong to the lord or proprietor of any such franchise or liberty) and thereupon in the name, and under the seal of the sheriff, to make and issue out such warrant or warrants to such lord or proprietor, as by law is requisite, for the due execution of such writs or process; and every such deputy or deputies is and are hereby required, upon tender of any such writ or process, to receive and open the same, and to issue out such warrant thereon, without delay, in such manner and form as the sheriff himself may or ought to do, without taking any further or other fee than what is now due and accustomed for such warrant; upon pain that every such sheriff or deputy respectively, who shall be guilty of any wilful neglect or default in the premises shall be liable to be punished for the same, as for a contempt of one of his Majestys said Courts of Chancery, Kings Bench, or Common Pleas (as the case shall require), and shall likewise make satisfaction to the party or parties that shall receive damage thereby.

[Sidenote: _Ca._ and _non om._]

_Note._ It is now usual to take out the _capias_ and _non omittas_ together, without staying for the sheriffs return[29]. _Gilb. Hist. C. P._ 26.

_Note_, If any of your defendants live within a liberty where the sheriff may not enter, you must get the sheriff to direct his warrant on your writ to the bailiff of such liberty, who may execute it; but if the bailiff of such liberty do not execute it, then you must at the return of your writ, get the sheriff to return a _mandavi ballivo_ thereon, and thereupon you make out a writ called a _non omittas_, directed to the sheriff, and upon that writ the sheriffs officers may, upon the sheriffs warrant made out thereon, enter and execute the warrant within such liberty. _1 Instructor Clericalis._ 44.

And _Note_, The usual practice in such case is if the defendant dwells in the country, to send down a _non omittas_ with the _latitat_ for dispatch. _Ib._

SCAC. E. 1725.

_L. Digby_ v. _Meech_ et al.

Bill to establish plaintiffs right to the manor, &c. of Sherborn Castleton in the county of Dorset, to Greenwax fines, &c., and also poundage fees on executions and _Retorna Brevium_, &c. by virtue of a grant 14 Jac. 1. The bill was brought against three succeeding sheriffs of the county, and Templeman, who had been the undersheriff for three or four years, and as to him to have an account of what poundage fees, &c. he had received within the liberty: the title set forth by plaintiff was, that King James I. granted to Sir John Digby (after earl of Bristol), from him they descended to George, from him to John earl of Bristol, _and on his death vested in plaintiff_.

It was objected at the hearing that here was not a sufficient title set forth, it not appearing how the premises vested in plaintiff, whether by descent, settlement, or how.

And _per tot' cur'_ the bill ought to be dismissed for that reason; the bill being to establish a right, as well as for an account; and upon this the cause went off, but plaintiff had liberty to amend his bill. _Hanbury_, 195.

[18] In the Kings Bench the sheriff returned _Mand' ballivo' Libertatis de D._ and it was said that he hath not such a franchise, and if it be inrolled in the chancery that A. hath _retorna brevium_, yet if it be not inrolled in the exchequer, as the statute of _W. 2. c. 39._ and if the sheriff return other liberty he shall be punished as a disinheritor of the Crown by such statute, and the justices may send _certiorari_ out of chancery to the treasurer, that he bring the roll of liberties in his hand, and shew it to the justices. _11 E. 4. 4._ _Br. Retorne de briefe._ 98.

This Roll of Liberties is supposed to be lost; at least the clerks of the _Treasurers Remembrancers office_, on inquiry there, could give no account of it; any more than the bag-bearer of the _Kings_ could of the "little booke," mentioned by Powell to be in the _Kings Remembrancers office_, "intituled, _Liber de Ball. pro Angl._ of all the bailiwicks throughout England," which he calls "an ancient booke, made _Anno_ 1180."

_Per Curiam_, where the bailiff makes insufficient return, the sheriff may return _quod nullum dedit responsum_, for an insufficient return is as no return; and in _præcipe_ against two, the bailiff returns the one summoned and the other not, this is no answer, and if the sheriff return this, he shall be amerceo, but by _Vavisour_ if the bailiff make dubious return and the sheriff return it over he shall not be amerced, _quære_. _5 H. 7. 27._ _Br. Retorne de briefe._ 89.

In _Præcipe quod reddat_, to the grand capias the sheriff returned _quod mandavi ballivo, libertatis_, who returns that he hath taken the land into the hands of the King, and says nothing that he hath summoned the tenant. _Martin_, another summons with _non omittas_ shall be awarded, and the sheriff shall not be amerced, for the bailiff hath not served the writ; for as much as he had in commandment to do two things, and he has done but one; and so it is as if he had said nothing either of one or the other. _Babb_, a _non omittas_ shall not be awarded but where the bailiff hath not given any return, but here he hath given a return which is not sufficient, and for this he shall be amerced. _T. 4 H. 6. [25.]_ _Fitz. Amercement._ 1.

In trespass the sheriff returned the _Capias quod mandavit Ballivo Libertatis, qui sic respondit quod cepit corpus_; but the bailiff does not bring in the body; but the defendant would have answered by attorney, and was not received. And the plaintiff prayed _Sicut alias_ to the sheriff, and _non omittas_. And for that the writ was served he could have nothing but a writ to the sheriff to distrain the bailiff to send the body, &c. _27 E. 3. 7._

[19] This _nihil_ is to be understood, not only where nothing at all is done, but also where the bailiff of the liberty maketh an insufficient return, for that is _nihil_ in law, and therefore a _non omittas_, &c. _2 Inst._ 452.

[20] (1.) The King may have liberties by the suppression of abbeys (_32 H. 8._) or by other means. And a liberty shall not be intended to be extinct, unless it be so shewn, but shall be said to be still in _esse_. _Cro. Jac._ 242.

When the King grants any privileges, liberties, franchises, &c. which were privileges, liberties, or franchises in his own hands as parcel of the flowers of his crown, as _bona et catalla felonum fugitivorum utlagatorum_ &c. _bona et catalla waviata, extrahur; deodanda, wreccum maris_, &c. within such possessions, there if they come again to the King, they are merged in the crown, and he has them again in _Jure Coronæ_; and if the wreck, or goods waifed, estrays, &c. were appendant before to possessions, now the appendancy is extinct, and the King is seised of them in _Jure Coronæ_. But when a privilege, liberty, franchise or jurisdiction was at the beginning erected and created by the King, and was not any such flower before in the garland of the crown, there, by the accession of them again to the crown they are not extinct nor the appendancy of them severed from the possessions; as if a fair, market, hundred, leet, park, warren, _et similia_, are appendants to manors, or in gross, and afterwards they come back to the King, they remain as they were before, in _esse_, not merged in the crown, for they were at first created and newly erected by the King, and were not in _esse_ before, and time and usage have made them appendant. _9 Rep. 25, h._

[21] Writ issued to the sheriff to enquire of waste, who returned _quod mandavi ballivo libertatis qui mihi nullum dedit responsum_, and for this he was amerced, and _sicut alias_ awarded, because by the writ he is judge and hath power to enter the franchise. _T. 11 H. 4. (81.)_ _Fitz. Retourne del vicount._ 53. But

Note, that sometimes the sheriff is judge, as in redisseisin, waste, and admeasurement, and the process shall be served by the baily as is said. _Diversite des Courts._ _Court Baron._

_Ejectione Custodiæ_ [under _W. 2. c. 35._], at the distress with proclamation the sheriff returned _mandavi ballivo libertatis_, &c.; and by _Thirning_ and _Markham_, the sheriff shall be amerced, for the proclamation is to be made by the sheriff by the statute. Therefore because the distress with proclamation is a thing entire, he ought to have entered the franchise and served the whole writ himself: and _Rikhill_ and _Tirwit e contra_ and that he did well, as in a _præcipe quod reddat_ of land, part in guildable, and part in franchise, the sheriff shall make precept for parcel, and shall serve the rest himself. _2 H. 4. 1._ _Br. Ejectione Custodie._ 1.

If a distress with a proclamation be granted, and the defendant hath nothing but within a franchise, the sheriff shall make proclamations in the county, and the baily of the liberty shall distrain him. _2 Inst._ 442.

Where the issue is of land part gildable and part in franchise, the panel shall be returned part by the sheriff and part by the bailiff of the franchise, and they may join [in the return]; and the distress [shall be] by the sheriff only if the bailiff be slack. _19 H. 6. 48_, _67_. _Br. Retorne de briefe._ 50.

If assise be brought of tenements in two franchises the sheriff shall write to each bailiff, and both shall serve. _Abr. Ass._ 92, _b._

Assise was brought of tenements in two vills, one vill was within the franchise and the other in gildable, and the bailiff of franchise made the panel, and for this it was challenged; for those of a franchise cannot have the view by commandment of bailiff of land out of the franchise, &c. And so the court thought. _H. 18. E. 3._ _quære_, how the writ shall be served? It seems that the writ shall abate, and that he shall be put to several writs, and namely where he may sever the thing, &c. for otherwise it will follow that the bailiff of the franchise shall never serve a writ, for a man may always put in the writ, part of the land gildable, &c. _quære_. _Abr. Ass._ 93.

[22] He is not servant to the sheriff, nor is any way subject to him (having as good authority in his office, and being as ancient an officer as himself).

Upon an issue the sheriff returned to the _Venire Facias_, and to the distress, as to 4 jurors he returned the writ served, and as to the remainder he returned _mandavi ballivo de B. qui nullum_, &c. Fortescue prayed that the sheriff should be amerced, for no writ may be returned by two ministers _s._ part by the sheriff and part by the bailiff. Newton, _e contra_. And afterwards, by advice of all the justices, the sheriff was amerced. _H 19 H. 6._ _Abr. Ass._ 144. 145.

It was assigned for error that in assize it appeared by the return of the sheriff, that he had found pledges before himself, and the bailiff of the franchise, to whom the return belonged, served all the rest of the writ; and the return adjudged good. _21 H. 7. 14._

[23] _H._ 49 _E._ 3. _B. R. Rot._ 4. _Linc._ proces _per_ attachement _per billam versus vicecomitem_ directed _al coroner_ for the disturbing a lord of a liberty. L. C. J. Hales Discourse concerning the Courts of K. B. and C. P. (Hargraves Tracts, vol. i. p. 363.)

[24] In the _Auctarium Additamentorum_ to Watts's edition of Matthew Paris is a warrant from the sheriff of Essex and Hertford to the bailiffs of the liberty of St. Albans, reciting a writ to the sheriff to summon the knights and freeholders of the said counties, &c. to be before the Kings commissioner with an express _non omittas_ in case of the default of the bailiffs of liberties; which proves that the writ for the King was not at that time (37 H. 3.) a _non omittas_ of itself.

[25] It seems that the sheriff ought to take notice of such a liberty at his peril, without the party shewing his grant to him but merely upon his saying that he hath one, because it is a matter of record. _1 Roll R._ 119. _Town of Derby_ v. _Foxley_.

[26] Rule to shew cause why a writ of _non omittas capias ad respondendum_, should not be quashed, discharged. The objection to the writ was, that it recited a mandate to have been issued forth by the sheriff to the bailiff of a liberty without naming what liberty, but leaving a blank for the same. The court held the objection to be valid, and that the proper way to take advantage of the defect is by motion; but it appearing that bail was put in to this writ before a judge, the objection now comes too late. _Barnes._ 416.

[27] Where the sheriff serves the process once of a thing local or permanent, as in _Præcipe_ of land and such like, he cannot after return _mandavi ballivo_; but _e contra_ of a thing transitory which may remove. _5 H. 7. 27._ _Br. Ret. de briefe._ 89.

Thus in _Alias Summons_ in Dower the sheriff can't return _mandavi ballivo_, for he ought to have made this return upon the first writ, that so the court might have awarded a _non omittas_; but if it relates to matters transitory, then the sheriff may return _mandavi ballivo_ on the issuing of the second process, as on an _alias capias_, for the body might be in the liberty on the issuing of the second process, though it was in the guildable in the first; and therefore the return of the first process does not conclude him from returning the liberty to the second process. _Gilb. Hist. C. P._ 26.

[28] _Urlin_ moved to stay proceedings, the process being served within the franchise of Bury St. Edmonds, and not by the proper officer, contrary to the late act of parliament. _Per Cur'_: The act only preserves and saves the jurisdiction of particular liberties. The person injured must bring his action, the court cannot stay proceedings. _Barns._ 404.

[29] How far such a practice is consistent with the rights of the lord of the liberty or with the law of the land (and particularly with the act just above recited) is submitted to those whose duty it is to support both.

In Yorkshire it is usual for the sheriff to direct the warrant as well to the bailiff of the liberty as to one or more of his own bailiffs, who may take defendant if found _extra libertatem_. This method is unobjectionable, it prevents delay and answers all the purposes of a _non omittas_.