Where sheriff returned quod mandavi ballivo, &c. who is plaintiff, if the bailiff returns quod cepit corpus of the defendant, and hath him not at the day, &c. the bailiff shall be amerced, and not the sheriff; and the sheriff is not bound to take conusance if the bailiff be plaintiff or not, for it may be another of the same name. 36 H. 6. 1. Br. Retorne de briefe. 65.
False return
for extortion.
Capias, the sheriff returned mandavi ballivo, & quod ipse cepit corpus, sed illud hic habere non potest quia languidus est, &c. And defendants wife came and said that he is not sick but detained by the bailiff for extortion, and prayed remedy. Whereupon a writ issued to the bailiff to return the body, and to appear; and upon examination it was found that the party was not sick, whereupon the bailiff was committed to the Fleet to make fine, and the writ against the bailiff was subpoena 40l. to appear and bring the body, &c. 11 H. 6. 42. Br. Retorne de briefe. 123.
Escape.
If a writ of execution comes to the sheriff, and he makes mandate to the bailiff of franchise, who takes him, and after suffers him to escape, action lyes against the bailiff of the franchise, and not against the sheriff. 5 E. 4. 1 b. 2. Brook, Escape 40. 1 Roll. Abr. 99. Noy. 27. Buller. N. P. 69.
If a man be in prison for execution in a county or in a liberty, the gaoler cannot bring him out of the county or liberty, unless in special case; and if he does it the prisoner may have action of false judgment, unless he has special authority, as by privy seal to be at Westminster, or the like. 30 H. 6. 6. Br. Escape, pl. 44.
If a warrant out of a Fieri facias to levy a debt at the suit of J. S. be directed to an under-bailiff of a liberty, and he by force thereof levys the debt, and afterwards conceals the writ, nor makes any certificate thereof, an action upon the case lyes against the under-bailiff, because he has made a personal tort. 1 Roll. Abr. 94.
Non-return of
the warrant.
If the bailiff of the franchise arrest the party, and do not return the warrant to the sheriff, action of false imprisonment lyes against him for the party. Keilwey, 86, b.[52]
Eyres sued a writ out of C. B. versus Smith, directed to the sheriff of York, who sent a warrant to Simpson, the bailiff of the liberty of Pomfret, who did not return the writ [warrant]: upon which he was amerced 50l. (viz. time after time) and that was estreated into the exchequer: afterwards Eyres and Smith agreed, and upon producing a certificate from the attorney for the plaintiff that the debt was satisfied, these amerciaments were discharged upon motion to the barons. Note, There ought to be a constat of the estreats, and, as the clerks said, the court uses not to discharge the amerciaments, but 'allows' you to compound them. 1 Salk. 54.