[33] It is an old rule of the duchy court that the bailiffs of the liberties of the duchy may distrain for fines and amerciaments for the King, and keep the same fifteen days, and if the party distrained refuse to pay his fine or amerciament, then the bailiff may sell the same, unless the party distrained will enter into bond to pay the said fine or amerciament at a day prefixed in the duchy court, or else shew good cause; but in this case there is no replevy to be granted against the King. And all this it seemeth the bailiff shall do ex officio. The fines and amerciaments within the liberties of the duchy are, however, usually levyed by writ of levari facias & capias out of the duchy court. And,
By Keble, precept to bailiff by nude parol is as effectual in court Baron as by writing, because the trial shall be all per pais and not by the record: for all is but matter in fait. Quod fuit concessum. 16 H. 7. 14.
[34] Per Levinz serjeant. In fact the sheriffs make no warrants to the bailiffs of liberties, but they only send the writ to them; and they execute it upon some general warrant, which they have from the sheriffs to execute all writs according to the agreement between the sheriffs and bailiffs. But (per curiam) this general warrant serves for a warrant to every particular case, for there must be a warrant in writing, because a command by parol to the bailiff of a liberty is not sufficient, 1 L. Ray. 190. Hammon v. Jermyn.
N. B. This assertion of the learned serjeant, though founded it is possible on some instance within his knowledge, can never be understood as true with respect to general practice.
[35] Bailiff of a liberty arrested the party, and delivered him to the sheriffs deputy, from whom he was rescued, and judgement for the plaintiff. Burgh v. Appleton, Sheriff of Essex, cited Cro. Jac. 242. See the Pleadings Declarations in the Upper Bench, 50. See also c. vi, (pl. 1.) c. ix (fo. 50.)
But in Boothman v. Earl of Surry, T. 27 G. 3. B. R. Defendant being bailiff of the liberty of Hallamshire, in the county of York took his prisoner to York jail and there delivered him into the custody of the sheriff, and upon action of debt brought against him for an escape, judgement for the plaintiff. N. B. Neither of the cases in Croke was cited by defendants council.
[36] In the Register are divers examples of original writs directed to bailiffs of liberties: as for instance; writs of right patent, writs de warrantia diei, writs of trespass, writs of supersedens, writs de cartis reddendis, writs de attornato pro custode, writs de attornato pro secta facienda, writs de statuto: The duchy court constantly issues writs of levari facias to bailiffs of the duchy liberties; in all these cases the bailiff is immediate officer to the court, and hath nothing to do with the sheriff, contrary to the argument in Skin. 413, and vide F. N. B. passim.
[37] This must be understood of a hundred in fee with retorna brevium in the hands of a private person, of which there are several instances; every other bailiff of hundred being a mere servant to the sheriff. And note, that, where a man is bailiff of fee in a county (i. e. a bailiff itinerant, who hath the execution only of writs within the county or hundred in fee) the sheriff shall not write to him as to bailiff of franchise, and for his act non omittas shall not issue, nor shall he make mention of him in his return. 27 Ass. p. 65. Br. Retorne de briefe, 69.
[38] The sheriff of a county made a warrant ballivis suis to arrest the body of such a man, and the bailiffs of the liberty return a rescous; and exception was taken to it, because the warrant was ballivis suis, and the return was made by those who were not his bailiffs; and it was adjudged good, for the liberty might be within his bailiwick, and so are all the precedents. March. 25.
[39] But the defendant himself shall never take advantage of a liberty, as if the bailiff of a liberty be defendant in any action, and process of Cap' or Feri Fiac' comes to the sheriff against him, the sheriff shall execute the process against him; for a liberty is always for the benefit of a stranger to the action. 5 Rep. 92.