CHAPTER IV.

OF HIS POWER AND CAPACITY; _i. e._ WHAT HE MAY OR MAY NOT DO OR BE.

[Sidenote: Steward.]

A bailiff may be steward of the same manor; for they may well stand both together. (_29 H. 8._ in _Bro._) _Cro. Jac._ 178.

[Sidenote: Deputy.]

Bailiff of a liberty may well have a deputy. _Cro. Jac._ 242.[32]

[Sidenote: Lease of land.]

Bailiff of lord may lease the land, and good, at will, for he is accountable, and debt lies for the lord. _2 E. 4. 4._ _Br. Bailie_, 32. _Lease_, 34.

[Sidenote: Rent.]

But if he reserve no rent the lease is void. _1 Roll. Rep._ 258.

[Sidenote: Lease of piscary.]

Bailiff of a manor may lease the piscary for years. _3 H. 4 12b._ _1 Roll Abr._ 339.

[Sidenote: Lease of manor.]

Bailiff cannot make lease of the manor, nor of parcel of the manor, without especial command for that purpose. _M. 8 E. 4. 13._ _Fitz. Bayllyff._ 3. _Br. Bailie_, 41.

[Sidenote: Lease of land.]

A bailiff cannot by any usage make lease of the land of his master [for] an estate of freehold. _19 Ass._ 9. _1 Roll. Abr._ 339.

[Sidenote: Payments.]

Bailiff of a manor may pay rents issuing out of the manor, and shall have allowance, but _e contra_ where he pays debts of the lord due by contract or obligation, for this is out of his power. _4 H. 7. 14._ _Br. Bailie._ 27.

[Sidenote: Cutting trees, &c.]

Bailiff may justify cutting the great trees for repair of a house, or the covering of it as it was before, but not with more costly covering, and the same law is of amending pale, hedge, or such like, without command of his lord; but he cannot cover with tile what was before thatch, nor make new house, nor make pale where hedge was before, unless by special commandment of his master. _12 H. 7. 25._ _Br. Baillie_, 42. & _vide plenius Trespas._ 288.

[Sidenote: Licence to walk over ground.]

A bailiff may give licence to another to walk over the ground, for this is a trespass to the possession only, and the bailiff hath the disposition of the profits of the possession. (_dub._) _1 Roll. Abr._ 339.

[Sidenote: Damage feasant.]

A bailiff of a manor may himself or command another to take beasts _damage feasant_ on the land, for he hath the care of all things within the manor. _1 Roll. Abr._ 339.

[Sidenote: General acts.]

He may do any thing for his masters benefit, but not to his prejudice without his assent. _Cro. Jac._ 178.

And therefore he cannot give seisin of rent, nor exchange the lords land. (_41 E. 3. 26_) _Cro. Jac._ 178.

[Sidenote: Distress for amerciament.]

Bailiff without special warrant from the steward cannot distrain for amerciament in a leet. _Moore_, 607. 574.

_Popham_ said, that defendant as bailiff of the manor cannot distrain for amerciament by reason of his office without an especial warrant from the steward or lord, no more than a sheriff may levy amerciaments of _B. R._ without warrant. But _Gawdy_, _e contra_, that he may distrain for lawful amerciaments by reason of the office. _Cro. Eliz._ 698.

Bailiff cannot distrain _ex officio_ for amerciaments. _Cro. Eliz._ 748.

Bailiff cannot distrain for amerciament by command of the lord of the manor, nor otherwise than by virtue of a precept directed to him by the steward of the court. _Carth._ 75.[33]

[Sidenote: Arrest.]

Bailiff of a franchise which hath _Retorna Brevium_ cannot arrest a man without warrant to him made by the sheriff upon the writ in his hands. _Keilwey_, 86 _b._[34]

[Sidenote: Delivery of prisoner.]

Bailiff of a liberty may deliver his prisoner to the sheriff without more circumstance; as he may be discharged by his parol from keeping him any longer. _Cro. Car._ 447.[35]

[Sidenote: Process.]

Bailiff of a franchise cannot execute a process within his franchise, but by the precept of the sheriff. _29 E. 3. 42._ _Coron._ 462. _2 Hale P. C._ 68.[36]

[Sidenote: Writ of inquiry.]

Case, judgement by _nil dicit_, writ of inquiry of damages to the sheriff of Norfolk, who returns a _mandavi ballivo_, and sets down an inquisition before bailiff and 40l. damages. Upon writ of error, agreed by all the judges that the return was insufficient, for it was apparently untrue, and against law, because the warrant was directed to the sheriff himself to be executed in any part of the shire, and no venue contained in this inquest of office, as there is in other writs which intitles the bailiffs of liberties. But yet the court would not reverse the judgement, because there were divers of the like both in the K. B. and C. P. especially in Suffolk and Norfolk in later times. _Hobart._ 83.

[Sidenote: _Elegit._]

Bailiff of a liberty may make an inquisition and extent upon an _Elegit_ by warrant from the sheriff, and shall deliver the moiety, and not the jury. _Cro. Car._ 319.

[Sidenote: Bail-bond.]

Bailiff of a franchise [under _23 H. 6. c. 9._] has power to take a bail bond, and must take it to himself, and by the name of his office. _Comyns._ 380.

Bailiff of a franchise may take bond in sheriffs name. _3 Keble_, 71. 117. 125.

[Sidenote: Waiver of franchise.]

Baily of hundred[37] may waive his franchise and arrest as sheriffs baily[38]. _3 Keble_, 71.

[Sidenote: Capias against two.]

Capias or distress against two, sheriff may serve as to one and bailiff as to the other. _31 H. 6. 13._

Where process issues, and the sheriff or bailiff is plaintiff, yet he may serve the process; 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.[39]

By _2 E. 3. c. 3._ Lords of franchises, and their bailiffs in the same, shall have power to execute this act; which prohibits all men, except the Kings servants in his presence, and his ministers in executing his precepts, &c. from coming before the Kings justices, or other the Kings ministers doing their office, with force and arms, or bringing force in affray of the peace, or going or riding armed by night or by day in fairs, markets, or in the presence of the justices or other ministers, or in any part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison to the Kings pleasure.

[Sidenote: Attorney.]

By _4 H. 4. c. 19._, no steward, bailiff or minister of lords of franchises which have return of writ shall be attorney in any plea within the franchise or bailiwick whereof he is such officer or minister.

[32] And such deputy it should seem ought to be made by writing (_9 Rep._ 51, b.). Though it is said _21 H. 7. 37._ that the sheriff or a steward may make deputy without deed.

[33] It is an old rule of the duchy court that the bailiffs of the liberties of the duchy may distrain for fines and amerciaments for the King, and keep the same fifteen days, and if the party distrained refuse to pay his fine or amerciament, then the bailiff may sell the same, unless the party distrained will enter into bond to pay the said fine or amerciament at a day prefixed in the duchy court, or else shew good cause; but in this case there is no replevy to be granted against the King. And all this it seemeth the bailiff shall do _ex officio_. The fines and amerciaments within the liberties of the duchy are, however, usually levyed by writ of _levari facias & capias_ out of the duchy court. And,

By Keble, precept to bailiff by nude parol is as effectual in court _Baron_ as by writing, because the trial shall be all _per pais_ and not by the record: for all is but matter _in fait_. _Quod fuit concessum._ _16 H. 7. 14._

[34] _Per_ Levinz serjeant. In fact the sheriffs make no warrants to the bailiffs of liberties, but they only send the writ to them; and they execute it upon some general warrant, which they have from the sheriffs to execute all writs according to the agreement between the sheriffs and bailiffs. But (_per curiam_) this general warrant serves for a warrant to every particular case, for there must be a warrant in writing, because a command by parol to the bailiff of a liberty is not sufficient, _1 L. Ray._ 190. _Hammon_ v. _Jermyn_.

_N. B._ This assertion of the learned serjeant, though founded it is possible on some instance within his knowledge, can never be understood as true with respect to general practice.

[35] Bailiff of a liberty arrested the party, and delivered him to the sheriffs deputy, from whom he was rescued, and judgement for the plaintiff. _Burgh_ v. _Appleton, Sheriff of Essex_, cited _Cro. Jac._ 242. See the Pleadings _Declarations in the Upper Bench_, 50. See also c. vi, (pl. 1.) c. ix (fo. 50.)

But in _Boothman_ v. _Earl of Surry_, _T. 27 G. 3. B. R._ Defendant being bailiff of the liberty of Hallamshire, in the county of York took his prisoner to York jail and there delivered him into the custody of the sheriff, and upon action of debt brought against him for an escape, judgement for the plaintiff. _N. B._ Neither of the cases in Croke was cited by defendants council.

[36] In the _Register_ are divers examples of original writs directed to bailiffs of liberties: as for instance; writs of right patent, writs _de warrantia diei_, writs of trespass, writs of _supersedens_, writs _de cartis reddendis_, writs _de attornato pro custode_, writs _de attornato pro secta facienda_, writs _de statuto_: The duchy court constantly issues writs of _levari facias_ to bailiffs of the duchy liberties; in all these cases the bailiff is immediate officer to the court, and hath nothing to do with the sheriff, contrary to the argument in _Skin._ 413, and _vide_ _F. N. B._ _passim_.

[37] This must be understood of a hundred in fee with _retorna brevium_ in the hands of a private person, of which there are several instances; every other bailiff of hundred being a mere servant to the sheriff. And note, that, where a man is _bailiff of fee_ in a county (_i. e._ a bailiff itinerant, who hath the execution only of writs within the county or hundred in fee) the sheriff shall not write to him as to _bailiff of franchise_, and for his act _non omittas_ shall not issue, nor shall he make mention of him in his return. _27 Ass._ p. 65. _Br. Retorne de briefe_, 69.

[38] The sheriff of a county made a warrant _ballivis suis_ to arrest the body of such a man, and the bailiffs of the liberty return a rescous; and exception was taken to it, because the warrant was _ballivis suis_, and the return was made by those who were not his bailiffs; and it was adjudged good, for the liberty might be within his bailiwick, and so are all the precedents. _March._ 25.

[39] But the defendant himself shall never take advantage of a liberty, as if the bailiff of a liberty be defendant in any action, and process of _Cap'_ or _Feri Fiac'_ comes to the sheriff against him, the sheriff shall execute the process against him; for a liberty is always for the benefit of a stranger to the action. _5 Rep._ 92.