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."