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.