[27] Where the sheriff serves the process once of a thing local or permanent, as in Præcipe of land and such like, he cannot after return mandavi ballivo; but e contra of a thing transitory which may remove. 5 H. 7. 27. Br. Ret. de briefe. 89.
Thus in Alias Summons in Dower the sheriff can't return mandavi ballivo, for he ought to have made this return upon the first writ, that so the court might have awarded a non omittas; but if it relates to matters transitory, then the sheriff may return mandavi ballivo on the issuing of the second process, as on an alias capias, for the body might be in the liberty on the issuing of the second process, though it was in the guildable in the first; and therefore the return of the first process does not conclude him from returning the liberty to the second process. Gilb. Hist. C. P. 26.
[28] Urlin moved to stay proceedings, the process being served within the franchise of Bury St. Edmonds, and not by the proper officer, contrary to the late act of parliament. Per Cur': The act only preserves and saves the jurisdiction of particular liberties. The person injured must bring his action, the court cannot stay proceedings. Barns. 404.
[29] How far such a practice is consistent with the rights of the lord of the liberty or with the law of the land (and particularly with the act just above recited) is submitted to those whose duty it is to support both.
In Yorkshire it is usual for the sheriff to direct the warrant as well to the bailiff of the liberty as to one or more of his own bailiffs, who may take defendant if found extra libertatem. This method is unobjectionable, it prevents delay and answers all the purposes of a non omittas.
BOOK II.
Of the Bailiff of a Franchise or Liberty.
CHAPTER I.
OF HIS QUALITY.
The bailiff of a franchise or liberty is he who in a free place, or portion of a county, taken away from the power of the sheriff, executes the business of the sheriff. Spelman.
Minister to the King.
The bailiff of the franchise is not minister to the sheriff but to the King. 8 E. 4. 17.