Refcue return'd hy the Sheriff of the County of Hereford.
$ S. C. cited i Roll. Rep. 78. Hill. 16 Jac. B. R. in Cafe of J&wlltng i). iLfAo, and there Mounta-
gue Ch. 1 faid, That the Reafon why|the Sheriff ought to return the Refcue made to himfelf, and not to
his Bailiff, tho' in fact the Force was done to his Bailiff', is, that the Bailiff is not Officer to the Court,
bur the Sheriff" only, and the Procefs is directed to him.
If Refcous be made to the Servant of the Sheriff, Coroner &c. it pall be return d as made to the Sheriff him-
felf, or Conner himfelf; For the Arreft is the Aci of the Sheriff himfelf, or Coroner himfelf, and there-
fore the Refcous to the Servant is a Refcous to the Sheriff lw/feij or Coroner himfelf. Br. Retorn de Briefs,
pi. 66. cites 59 H. 6. 40. Br. Refcous, pi. I 5. cites 59 H. 6 42 S C [In the Year Book it bi yvrs
at 40. b. pi. 4 and ends at 41. a. J — S. C. cited 5 Mod. 21-. Arg. in f&teAxtf$K&K(£it (late Trin.
8 VV.
1 7 2 Return.
8 W. ?. andfeid, that ever fince this Cafe, it has always been allow'd to be a good Exception to a Re-
turn of a Refcous, where the Party is indicted for it, and refilled out of the Cuftody of the Shci
Bai
An Exception was taken to quiffi a Writ of Refcous. iff Becaufe it i. '.ftavit, wil . :
• \-.rr (& in Crf. babuit) 2dly, Becaufe it is, That the Defendants refcued him cut of t, f
â– â– â– â– [lit to be out of the Cuflody of the Sheriff. Twifden faid, That the lafl Lx-
been ruled both Ways, when the Return is made by the Bail â– â– Sheriff; but that ic is
good when made by the Bailiff 0/4 Liberty. Bui KclingCh.l (aid, That it had been ufbally ouafh'd
for this ; But all agrded agreed to quafo it for the firft Exception. Sid. [9 Car. 2.
i> !■'.. A ion. — LBv. 214. S. C. by the Name of the Elliot}'. £»ltmn£ accordingly, otherwife where
the Bailiff of the Liberty has the Return of all Writs, and to this purpoic were cued * Sty. 417. -j- 1
E. 7S1. D. 241. La.. 1S4. and that of this Opinion was Keyling Ch. J. but Twifden and Wind 1
trs ; For there i.s I'critas FaBi & Veritas Leg is, and that here the Return is of the Truth of the Fa .t,
iod as the Truth of the Law, viz In Cuftodia mea, and that either of the Ways are go >d.
idly, It is not return'd, that they refcued themfelves, nor who it was that refcued them. 3dly. It is
mt . (that y tuere in Cuflodia of the Bailiff', but only by Implication that they were refcued
c ra Cuttodiam of the Bailiff, and therefore the Jullices agreed to quafh it, and it wasqualhed accord-
ingly. Raym 101 . S.C. That the Return was quafhed by the other Juftices, but that Twifden
heidcoi :ra — — — S C. cited 5 M"d. 218. Arg. in Strange v. aies's Cafe.
* 1654. Anon. £ Ruflel v. Wood.
Exception was taken to a Return of Refcous, becaufe it is returned to be done to the Bailiff, v.
the Warrant and Refcue being to the Sherirl 's Bailiff, and not t ) t !, e Bailiff or a Franchife, ought to
be returned to be done to the Sherirl" himfelf, and nor to the Bailiff; but per Cur ic isgood 1. >th
Ways, 2 Lev. 28. Mich. 23 Car. 2. B. R. The King v I )la] im.- S. P. X V 1 Allocatur; For the
Cuftcdy of the Bailiff Virtute Warranti of the Sheriff is the Cuftod) • F ifl 2 Jo 19-.
Pafch. 34Car. 1. B. R. Penfold, Mariner and five others S. P. A F made the
Return of the Refcous from himfelf, and Exception was taken thereto, yet the Court and the Clerks
faid, the Precedents were in that Manner: But the Court (aid, it vassood the other Way alfo; For in
Law it is vhe Rclcue from the Sheriff tho' in Fact it is from the Bailiff; snd the Exception w. . d:!al-
lowcd. Palm. 532. Pafch 4 Car B R . Cane's Cafe.
A Motion was made to quafli a Recoil', returned againft G becaufe, it was faid to be Ex C
BaUiiiorutn ; w hereas it fhould be Ex Cuftodia Vicectmi ; for the Curtody of the Bailiffs is the Cuftod < of
the Sheriffs. Per Cur. both Ways are good, and fo it has been frequently adjudged. 12 Mod. 94. JThe
King v. Giles.
Cro. J. 241. 2 . But fUClj ftCttirn in Banco Regis fe fCOOtl eitOUffl) ; 'BtttHlft tl)ZVZ
SV'^S" ttW tOe Common life, anD tlje jpreceoentg t&ere arc accorDitiirlp*
Exchequlr ©tCtJ. * 3a. M tijC €,CCi3lT|ltCi llCt'OlCCtt Kent and Helwayes i per. CU*
Chamber £»»!* $0* I I 30* 3* &♦ aOWSgCB*
S C.
Jenk. 315. pi. 2. S. C. Lane 70, 71. S. C. by the Name of Kent v. Kelway.
3. Such Ectltrn in B. by a Baily of a Franchife, tuf)0 ijS0 ECtUtil Of
t©rtts&\ aim ^cectmou of tijem, 10 goos enougij. D. 7 €U 241. 47.
cro t. 541. 4 . jp, s 3|a* bettoeen Kent andUeiwayes in action upon tije Cafe toe
t ■'.-*£• a Eeicotts upon a i^uuc uhncij voags rcairnaulc m tlje iftng'gi
by the Name ftp.**,-., r "
of Kent v. XCUCl).
Elwis.
Lane 70, 7 1. S. C by the Name of i%C5lt ( J, &llU'aj', and it was agreed, that the Declaration is goo.i
enough, to fay that he was refcued out of tne Hands of the Deputy Bailiff, and that the Coun'e of B.
R was always fo upon the Return of a Refcue, notwithftandlng 7 Eliz. D. 241. and that the Decla-
ration that he had fued an Alias Capias was good, without mentioning that any Latitat was filed be-
fore ; and that the Arreft by the Deputy Bailiff by Virtue of a Warrant delivered to the Sheriff, was
good. But the Reporter adds a Quaere, if they fhould not examine whether the Bailiff [who was Bai-
liff by Patent] had a Power by his Patent to make a Deputy
Cro. J. 241. S. C. in the Exchequer, and it was aflign'd for Error. 1 ft, That the Cufiom 0! B. R. is
alleged to be, 'That if any one arrefled comes fub Cttftodia Vicecomit. be pall pftt in Bail, which is not
fo ; For he Avail be in Cuftod' Marefchalli, and no Declaration can be againft him fub Cuftodia V"i-:c-
comitis fednon Allocatur ; For the Subltance of the Matter is, that he fued out Procefs to Save him
arrefled for this Caufe, and he being arretted, was refcued ; n inch is the Ground of the AAion : A id
all which is alleged concerning the Cuftom, is idle, and the ihcwing thereof fhall not hurt him. 2dly,
(Whereupon it was chiefly inhfted) for that it is fhewn that lie wa. refcued from the Deputy of the !:.'.':-
liff of the Franchife ; where it ought to have been alleged, I h it he v. .:. reft lied from the Bailiff him-
felf, or from the Sheriff as 39 H. (>. is , Scd non Allocatur ; For there is Diverfity between this Cafe,
which is an AEtion upn his Cafe, wherein bejballjhetu the Truth, as in Rei veritate it is, and not as it it
Upon the Return of Refcue s or Indictments, which fay, That it was done to the Sheriff or Bailiff
himfelf.
5. Jf a ©Ijcriff returns tfjat &e op of JForce a Capias took ttje Xo*
8j> Of ij> ©♦ & ipfum habuit in Cultodia quoulque J. D. and J. N. Vi &
Armiai
Return. \no
â– â– -
Armis, ftld) 3 D3? LlHtJ JSHaCC, aflaulced W. S. and W. N. his Bailiffs,
t& Prsdritum J. S. .adturx; & ibidem a Cuitodia iua refcullerunt, (J pfs=
fctmi0 3* %> fcipftim refcttult. Cfjtg 10 not a goon Return ; %&
caufe it is not ujcum, tljat toe Taatliffjai Jjao am> iaittljorttj? to inter-
meUDle, nun to lap a Rcfcous ta tic tuittjout'Dt $ atmiss 10 not
gOOO, aitU tlje Vi 6c Armis goes to the firit Ciauie only. p. 3 Cat*
Wikochs's Cafe aHjuugcti* 3na tlje Emtrn quakes; JFor at cijc com*
won Laui, iuijerc a span fljoala be outlauico or Snco, tijerc it omjiit
to tie alleges tbat tlje ©ffc-ncc uias» 01 $ Sttmtsi,. 55 &♦ 6.
8 ^>. 6 9. b. Co. 3- ^arbert.
6. 3f tf)C Sheriff tCtUni0 a EerCOU0 that f. fimul cum B. refcued A. AitwafiM,
out of his Cuitody ; Cijt0 1& no gooo Return againff 15* becaufe It 10 ' ; '' 7 ' M thc
not anp aucrment t&at 15* rrihiai ium. Jl3or 10 it a paa Return ;„Z £~*
agamft 3!» becaufe it 10 * refcufferunt, taiiicij 10 mienfibic. m. 14 SXJr
Car. 15* H. per Curiam fuel) Return quafljen* *•■»/.#; j&mi
cum y. S.
and J. N made the Refceut, this is not good. Winch. 10. Pafoh. 19 jac. in Homan and Hulls Cafe.
* It was moved to quafh a Return of a Refcous againft S. and divers others, who refcued a Perron
taken uporsMefne Procefs ; becaufe the Rrfciters hew", particularly named, it was (aid, refiujferuntt
without adding ghtiltbet [eonim] eundem refiujjit; But Twifden J. being only in Court, held it well
enough, it being in the Affirmative. Vent. ?. Mich. 20 Gar. 2. B. R. Suflil's Cafe. 3 Nelf Abr.
256. pi. 27. S. C. cites Vent. 2. that it w.is quafhed.
7. 13. Ed. 1. cap. 39. Recites, That the Sheriff's many 'Times make falfe
Atijwers, returning that they could not execute the King's Precept for
thc Refinance of fame Great Man, wherefore let the Sheriff s beware from
henceforth^ for fuch Manner of Anfwers redound much to the Dijhonour of
the King.
And as foon as his Bailiffs do tefrify that they found fucb Refinance, forth- The Branch
go in proper Perfon to do Execution ; and if he find his Under- Bailiff's falfe, Common' 6
he /hall puriip them by Imprifonment, fo that others by their Example may be Law, 2 info
reformed ; and if he do find them true, he /hall pun'ifh the Refijfers by Impri- 454. andre-
fonment, from whence they Jhall not be delivered without the King's Special fers to the
Commandment. Expofition
upon the faid
Statute of
W. 1. for further Reading upon this Matter at large.' -See for this 2 Lift. 195, 194.
And if perchance the Sheriff, when he conies, do find Re fi fiance, he pall Albeit by
ttffify to the Court the Names of the Refijfers, Aiders, Confenters, Comman- the F c » n ing
tiers and Favourers, and by a Writ Judicial, they pall be attached by their \ xx ^ ^
Bodies to appear at the Kings Court. thauheShe-
, „ „ _ . _ _ riff Should
take PoflcComitatus after Complaint made, Poft Queremonhm Fafram ; yet feeing he mav take Poffc
Comitatus by the Common Law, he may either take it poft, vel ante Querimoniam. 2 Inft. 454.
But he muft take it after Refiftance, and not before ; for fequi debet potentia Juftitiam, non prxcedere.
2 Inft. 454
And if they be * convift of fitch Refiftance, they (hall be punifhed f at the * See CO)
King's P leaf ure ; $ Neither Jhall any Officer of the King's meddle in a/fign- P 1 ; 2 ?-— — '
trig the Pumjhment ; for our Lord the King has referved it Specially to him- Jq^"'? 30 "
fclf ; beeaufe that Rtfiflers have been reputed Dijlttrbers of his Peace, and of ""at which
his Realm. Ihallbeupon
vii t. â– , * r - . ^ ~ due Proceed-
ing adjudged coram Rege in the King s Court of Juftice. 2 Inft 454 £ That is as has been
faid, that the Delinquents mall be punifhed coram Rege, in his Court of Juftice ; For no Man can be
punifhed by Abfolute Power, but fecundum Legem, & Confuetudinem Angliz. 2 Inft. 454. ^And
for more of this Matter, fee 2 Inft. The Commentaries upon Magna Charta, cap. 29.
8. If" the Sheriff brings a Prifoner towards the King's Court, and People But Brook
refcue him, and the Sheriff returns it, the Return is not good in Time of nu!:cs a
Y y Peace
1 74. Return.
ow where /v.-w; For he ought to bring him fate, and may have Writ of R.efcou?
the Rcfcous triereo f Br Relcous, pi. 27. cites 16 E. 3. & Fitzb. Retorn de Ere-
tehf^ ; viumpi;.io
therwife it fecms there. Ibid.
Br. Lieu, pi. 9. If the Sheriff returns upo/t Capias, That he arrijted the Defendant at
yf.citesS.C j) an d would have carried him to Gaol, and W. N. refitted him, this is
D- -' <;- not a good Return ; For he ought to ft>ew at what Place he made the Reft
gl.^ 9 . cites ^^ _ for . c ^j nQt be i nten£ }ed where the Arrelt was ; For the other
.V P.' And for jhall'be put to anfuer to the Return, and upon this, the Outlawry of
that reafon tne Relcous was revcrfed. Br. Retorn de Brief, pi. 97. cites 10 E. 4. 15.
ra Sareed. Mo. 4" pi- 5 8 ^- Mich 37 & J 8 E1 " 17 - B - R - Anon - A,v ! lv au " a J R " urn ? f
Refcous (hewed neither Tiireor Place where the Rcfcous was made, the Refcuers were diicharged.
Palm *6« Trin.dCar. B. R. the Cafe of the Mieriff of Berks. '
'Upon a I atitat awarded againit W. the Sheriff returned a Refcous on fuch a Day, but men!
noPlue where the Refcous was, and adjudged void; becaufe non Conftat, whether th
R-fcous were within his County and Jurifdiaion ; but it it had appeared to te done m tho
he does not fay {Infra Balliiam meam) it fliall be intended within his Bailiwick, tho it wasw ithin a
Libem in he fame County ; and even in fuch Cafe the Refcous had been unlaw ful ; bee
wlTSd, and no Offence, unlefs to the Lord of the Liberty. YeW. 51. Mich, z Jac. B R. WolfYe-
fton'sCafe Ibid. 52 cites 1 1 H 4. 2 14 H. 6 Quare Impedit. Jei k 125. pi. 59. S. P. that
the Return is void; becaufe it cannot be traverfed for Want of a Place, out or which the Jury
fhall come.
Br. Return 10. Note, it was faid that a Return and a Declaration^-?// be certain
de Brief, P l. to every Intent i and therefore becaufe he return'd, Refcous made at B. by
SS 'r Cit pi S ?' M. by Command of N. and .did not pew any Place of tin Command, tire
~„ b J ■V" Return is ill, and the Sheriff was amere'd. But it is faid elfcuhcre,
cites S.C. ' that a Bar is good, if it be good to a common Intent. Note the Diver-
sity. Br. Count, pl. 58. cites 3 H. 7. 11.
n. If the Sheriff returns Mandavi Ballivo qui cepit Corpus, and that
fuch an one made a Refcous ; this is not good ; but he fliall lay, Man-
davi Ballivo qui nnhi dedit Refponfum; quod cepit Corpus &c, Mo. 402.
pl. 532. Pafch. 37 Eliz. Atkinfon's Cafe.
12. A Deputy- Bailiff of a Liberty arrejled the Party, end delivery him
to the Sheriff's Deputy, from whom the Refcue was made. In Action on
the Cafe brought tor this Refcue, Judgment was given for' the Plainti 1,
which was aitirnVd in Error. Cro, J. 242. in Cafe of Kent v. Elwia
fays a Precedent was ihewn Pafch. 31 Eliz. Rot. 248. Burgh v. Ap-
pleton.
13. A Refcous was return'd againfi Evanum, alias Jevanum Loyd,
â– which appears upon the Exigent. The Court held the Refcous naught,
becaufe he cannot have 2 Christian Names. Noy 135. Loyd's Cafe.
So where 14. Nota, That the Sheriff return'd a Refcous againit 2, viz. the Fa-
the Return t h er an d the Son. Againit the Father for relcuing his Son, and againft
was, that the Son tor re f cu i ng himfelf i as to the Father, the Return was furhcierrt
5HS EL and certain, both for Time and Place ; but as againit the Son Exception
aforefaid, was taken that it was infufficient and uncertain, as to the Time when,
the Bailiffs anc j tne pj jce where the fame was done. But DodderidgeJ. held the Rc-
adtunc & turn d and certairij anc i c h a t it ihall be intended to be that at the fa
TaZwttkc' Time that the Father refcu'd the Son the Son did there refcue him-
andtbt afore- felf'j for the Return is of the Refcous of the Father, that he did refcue
faidGeoroe n ; s s on anC } tn j s j s cer tain to all Refpcfts ; And the Son refcued him-
Bali refuge- felf wichouc any Limitation of the Time when $ this (hall be taken here-
to be at the fame Time; for this Word (And) is here a Conjunction
.*"v 1 1 1 1 /" _ 1 1 -. _ .^..rt ,,«-*^4 *-K*rt A ,-n.» i'mu»
for the°hrft nor guilty thcreot ; and it may be io, that one may relcue a rrnoner
Admnc&c. at one Time, and that he himfelf may well relcue himielt at anochef
refcrr'd only Time, and fo the fame may be at feveral Times , and therefore, becaule
to the Vul- iii
Return. 175
In the Return of the Refcous againfi the Son for refilling of himfcif, no neraverunt,
Time is let down in the Return when this was done, the Return for }" d f n °r to
this Caufe is infufficient : But by the Rule o{ the Court, the Son being ^"J^
prefent in Court, was lor this Refcous fined at 40 s. and impriibned, the Return
and a further Time lor the Father to appear. 2 .Built. 137. Mich. nHg'd in-
J\ „,™ fufficient.
ac - An0n - Noyn 4 .
A non .. gut where the Sheriff return 'd a Refcous upon a Latitat, and did not return the Day of the
option, all the Clerks feid the Precedents are accordingly, tlio' 4 Eli/.. D. 21 2. and 10 E. 4 15. were
cited c Contra; Sed non Allocatur. Palm. 552. Pafch. 4 Car. B. R. Cane's Cafe. But Serjeant
Hawkins lays, it has been adjudg'd, That if the Sheriff returns a Relcue without Jhewing the Tear and
Day, it is infufficient, becaufe inch Return is in Lieu of an Indiclment. 2 Hawk. PI. C. 235. cap. 25,
S. 79 and cites Fitzh. Corone 45. Attachment 1. and * Br. Return de Brief 97. and 5 H. 7. II. pi 5.
* See pi 9. lupra, S. C. but it is not exactly S. P.
15. In a Capias Utlagatum before Judgment, the Sheriff return'd that
J. S. and J. N. refcued' the Party &c. and it was mov'd .that the Re-
turn was not good, for there ought to be Additions, by which they
may he (bed to the Outlawry ; but Hobart and the Court held this to be_
good without Addition ; for no Statute nor Book wiJl compel the Sheriff
to give Additions in this Cafe. And therefore it was ruled, that the
Return was good, and the Relcuers, which were prefent, were commit-
ted to the Fleet. Winch. 10. Ealt. 19 Jac. Homan and Hull's Cafe.
16. The Sneriff return'd a Refcous, reciting that a Latitat was di-
rected to him, and that he made a Warrant to his Bailiff, who arrefted
W. &c. and that G. and others refcued him ; this is a good Return
tho' neither Time or Place were fet forth, where the Warrant was made, 2
Roll. Rep. 255. Mich. 20 Jac. B. R. Webb v. Withers.
17. The Sheriff return'd, Quod Virtute Brevis Domini Regis mihi di-
refti Mar.davi Ballivo qui Anno Regni Jaeobi mftri (omitting Regis)
Heffimo & cepit ; and that Rous made Refcous: This is not good, be-
caufe it is Nonfenfe. 2 Roll. Rep. 354. Trim 21 Jac. B.R. Anon.
18. The Court upon the Return of. a Sheriff of a Refcous made, and
it was mov'd to qualh it, for thefe Exceptions taken to it. iff. h is
faid, Feci Warrantum mmm Tkom<£ Taylor, and does not Jay that Thomas
Taylor was his Bailiff, zdly. He doth not fay J or what Caufe he made his
ii arrant ; and lo it appears 'not whether it was lawful or not; and upon
thefe Exceptions it was quafh'd. Style 155. Mich. 1649. B. R. Anon.
19. A Writ ilfued to take one S. the Sheriff return'd, that he madea
Warrant to 3 Bailiffs to arreft him, which they did, and had him in
their Cuftody, and that G. and others, Vi & Armis, in Thoman Merries
Ballivos vieos infinitum Jecemnt, & adtunc &} ibidem, refined him a Cuftodia.
Ballivorum meorum, & contra Voluntates fuas. It was objected, That it
ouo-ht to have been Ex Cuftodia Vice-comitis, and not a Cuftodia Balh-
vorum, becaufe the Sheriff, and not the Bailiff, is the proper Officer to
the Court. It was laid. That if an Aftion on the Cafe is brought lor a
Refcous, the Plaintiff may declare Secundum veritatem fafti ; but if the
Defendant is indicted, it mull be Secundum Veritatem in Lege, (viz.)
That the Prifoner was refcued out of the Cuftody of the Sheriff him-
felf ; but this Return was quafh'd, becaufe it fet forth that the Prifoner
was 'in Cuftody of 3 Bailiffs, and that the Defendant made an Afjauh on
me which the Sheriff' called Ballivos meos. 5 Mod. 216. Trin. 8 YV. 3-
Strangeway's Cafe.
20. It was mov'd to quafh the Return of a Refcue, which was, Vtrtit* , Salk ^
iebrevis mihi direct i feci a Warrant to J. S. and J. N. my Bailiffs, who pl . z . s. C
by Virtue thereof Ceperunt & arreftaverunt the DeJcndant, cj? in Cuftodia
meet habuerunt, qiioufqite A. and B. refiufijermit the Detendant ex Cuftodia
J.S. yJV; Bal/ivorum meorum. And it was quaflf d ; lor per Holt Ch.
f . the Sheriff If ould either have return'd, that the Detendant was in his
Cuftodv, and refcued out of his Cuftody, or that he was in Cuftody of
the Bailiffs, and tefcuedhim out of their Cuftody, either of which Returns
had
176 Return.
had been good ; but this Return is repugn ant, viz. That the Defendant
was in Cuftody of the Sheriff, and refcued out of the CulTody of the
Bailiffs, Ex relatione m'ri Jacob. Ld Raym. Rep. 589. Trin. 12 Will,
3. Anon.
21. Return of a Refcous was thus,/?/'/. Non eft inventus in Balliva mea,
-and then Exec ut to Rcftdui ijtitts brevis patet in Schedula hmc Brevt annex\
and that was of Taking and Refcous ; but it was quaff d for the Repugnan-
cy ; for Per Cur. After Non eft inventus, there remains nothing lor the
Sheriff to do. But note, upon the Return of a Refcous the Sheriff al-
ways concludes, that after the Refcous made, the Defendant Non eft in-
ventus in Balliva. 6 Mod. 220. Mich. 3 Ann. B. R. The Queen v.
Weeks.
See sheriff. (B) Sheriff. Delivery over. [By the Old Sheriff to the
New one.]
1. r-p fp e ]sT cvv Sheriff'!^ ttOt chargeable iDitlj fllClj djiffltSl itS ate
X crccuteu before tljep are uclrbcrco obct to Ijim bp the £>irj
Sheriff.
2* Jf tijC ©IjCriff takes a Man in Execution, atlU aftCttanrt!0 a Belli
€*I)enff 10 maOe, anO after before the Old Sheriff delivers over, fitf
}3arty tuljo was in Crccution efoapes ; tlje Bern is not chargeable tor
tins Cfcape, but tlje £>m Sheriff; for tlje Beui 10 not cljarixeabie
UHth. any l^nfoncr before tbat Ijc 10 belrbcreD obcr to Dim. Cr, 39
€!♦ 13. E» i0 citeu &\mKskjaner'$ Calc to be fo aajtmscn.
(C) Return of Sheriff [Or other Officers.] In the
Name of whom it may be.
Cm. E. 512. 1, Tif a Writ trirrCtetl tO tijC ©IjCriff be executed, and aftCt a New
p a imer v j^ sheriff t0 cicctcn, tijc ^ucccfioi* ousot to return rlje i©rit in
but's'p ^' fUCl) fanner, tljat 10 tO faP, Recepi hoc Breve prsedeceffori meo di-
does not ap- rectum lie indorf at urn &c, *WK* 39 CL 15* E* bCtlUCClt Palmer and
pear. Mar/b, \$ZX CUtiaUU
Cro. E. 512. 2 . So If UpOlt 3 Warrant directed to the Baily ot a Franchife tOetCCUtC
Pj. 57. Pal- a jj^j^ j t m f cr 5j C Q } an j affcc before Return tijCrCOf, the Baily is re-
â„¢ S V c but moved, and a New Baily elefted. CIjC EetUtU tO ti)C
!jeritf flj.lll
s. p. doesi not be m tlje Jl2amc of tlje ©10 l5(\Uv but of tlje Mm TSailp, in tijc
not appear, fanner aforeram ; Jf or tijc ©lu I3aiu> t$ a 99ecr Stranger. Cr .39-
CI. 03. E» betioccn />«//««■W Afcr/fc. pet Curiam aDjimflxtL
3. Butifauarit Uircctetito tbc ©jjenff be not ercqiteo up Dim,
anO nothing done in Execution thereof before the Sheriff is removed,
aim another elcctflj,aim after tijc Wcit i0 crecutco, it fijall be retum'd
Generally m tlje jflamc of tijc <§>ucccn~or Sheriff nnttjaut am> Men-
tion OftiJC ^rCOecefTOr. Cr. 39- C1.13.E* bCtlUCCn Palmer and
ter s. c. but Mar jfr m p CT curiam.
not aSa'r 4» » fa me £a\0 10 Of a Baily of a Franchife. Cr. 39- CI. 15* E*
Per Curiam.
5- A Spe-
Cro. E 5 1 :
pi 37. Pal-
mer v.Pot-
Return. 177
5. A Special Stipplicavit iffued out of the Chancery, directed to the Godb jjj:
'Sheriff, and to 2 Juftices of Peace, requiring that 2
'"before them L. and 2 others, and take Security for the Peace ; The 2 y«/^ j. lC g r
y/trcj- took a Recognizance of L, but the other 2 could not be found, and ftw S. C. but the
Sheriff returned this Matter into Chancery. Exception was taken that Return is
the juftices who examined L. ought to havereturn'd the Writ, and not [1^â„¢^
the Sheriff, who a£ts not in this Cafe as Sheriff hut as a Comrhilfioner, and [, v an After-
therefore thofe that execute the Commiffion ought to return it; For the Sheriff, and
King (hall not be certified bv the Sheriff' that others certified him &c. not b y nim
JBut Doderidge, Haughton,' and Chamberlain refolv'd that the Writ 5°/']°™^
was well executed, and the Return by the Sheriff' good. 2 Roll. Rep. ^ direft-
257. 273. (bis) Hill. 20 jac. B. R. Leonard's Cafe. ed ; and fays
the Cafe was
adjourn'd; For by 2 Judges the Supplicavit and Recognizance were nor well return *d by the new Sheriff; but
Lev Ch. ]. was againft them. Qiisrc — Palm. 322. S. C. fays the Return was (viz.) Execucioiftiusbrevis
&c. Ei memorandum That fiich a Dav the Parties Venerunt coram nobis &c. etinvenerunt fecurirarem
&c. And that it was refolv'd bv 3 1 uftices abfente Ley Ch. J that the Execution and alfo the Return,
â– was good ; and that at another Day Ley Ch. J. and Doderidge faid, That it is not material who brought
the Supplicavit, or How it came to B. R For 'the Juftices of Peace might fend it by their Servant, or de-
liver it with their own Hands, and return it by another, and it is not material, the Record being here for
the King, by which the Binding is; and it appears Per Pais upon the Scire facias, that the Record is
forfeited. 1 Ibid. 369 S. C. and there Ley Ch. J. held the Writ well return'd, becaule the Sheriff
was one of the Commimoners : But Doderidge, and Houghton J. contra. But becaufe Ley Ch. J. adher'd
Vehemently to his Opinion it was adjorn'd till Chamberlaine J. was prefent.
(D) By whom it fhall be thadL