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.