If the sheriff send unto the bailiff of the liberty to levy fines and amercements for the King, and the bailiff distrain, and rescous is made, the lord of the liberty shall have a writ of rescous, for the rescous, the battery, and assault, and loss of service, all in one. F. N. B. 101.
If a man sue forth execution, and hath capias directed to the sheriff to arrest the party, and the sheriff make his warrant to the baily of the Kings liberty to arrest him, and he doth arrest him, and others rescue him from the bailiff, he who sued forth the execution shall have the writ of rescous; but yet it seems reasonable that the bailiff shall have a writ of rescous in such case, for some say he shall be chargeable, &c. F. N. B. 101.
A warrant was from the sheriff to the bailiff of the 'liberty' of Pomfret, who executed it, and rescue was made, and the bailiff brought the action against the rescuers to recover damages: and it was held that the bailiff may have this action in his own name, to recover damages for this. Clay. 149. Foster v. Legerd. (Viner, Rescous. A. 3.)
Inquest by the sheriff.
If bailiff of franchise return certain names to the sheriff, and the sheriff return other names, though the inquest returned by the sheriff shall be taken, yet bailiff shall have action against him. 30 Ass. p. 5. Br. Retorne de briefe. 73.
Return by
7 & 8 W. 3.
c. 32. § 6.
By 7 & 8 W. 3. c. 32. § 6. the return to the justices [directed by this act] shall be a good excuse and bar in law for the sheriff, for such summons and returns [as thereby directed]: and if any action or information shall be brought or prosecuted against any sheriff for such return, the said sheriff may plead the general issue, and give this act in evidence; and if the plaintiff be nonsuited, discontinue his action, or if a verdict be given for the defendant, or a noli prosequi be entered in any information, or a verdict pass for the defendant thereupon, the plaintiff or informer shall pay treble costs, to be awarded by the court in which such action or information was prosecuted, and levyed by usual process. Note, that although the word sheriff be alone made use of in this clause, yet it seemeth that the bailiff of the franchise shall in such case be intitled to the full benefit thereof.
[51] This case is printed by Mr. Dalton as an extract in French, and he refers to 10 H. 6. 37. But there is no such folio in that year. Mr. Dalton has certainly the appearance of having been a very industrious man, but the most gross inaccuracy is perhaps the least of his faults. He is therefore to be read and quoted (if at all) with great caution. And it might not be amiss if the same caution were extended to Master Kitchin, who deserves the title of an authority little better than Mr. Dalton.
CHAPTER VII.
OF HIS RESPONSIBILITY AND PUNISHMENT
Omission of name
in return.