Debt, to the capias the sheriff returned non est inventus, the plaintiff shewed that the sheriff made a precept to the bailiff of the franchise to take the body, who took him and delivered him to the sheriff, which he would aver, &c. Tota curia, you shall not have this averment against the return of the sheriff. Nor in any case, but too little issues by the statute. H. 2 H. 4. 14. Fitz. Averment, 17.
In case against a bailiff for the false return of nulla bona upon a fieri facias, the question was upon the evidence at the trial, whether the bailiff of a liberty shall be concluded in point of evidence by the return of the sheriff? and per curiam, he is concluded; and if the sheriff makes any other return than that which the bailiff makes to him, he may have his action against the sheriff; and it was said that Holt, chief justice, was of this opinion. See 36 Hen. 6. 40 [1.] L. Raym. 184.
Mandate.
Upon a demurrer, Powel said that the plea was naught, because it sets forth a mandate to the bailiff of the liberty, and did not shew that it was under the hand and seal of the sheriff. 2 Vent. 193. But see 1 Ventris, 46. that on motion to quash a return of a rescous, because it was mandavi ballivis, who took him virtute warr' præd', and it was said, mandavi did not imply that it was in writing, the exception was disallowed by the court.[55]
County.
Where any thing is shewed to be done within a liberty or a franchise, there it is not necessary to shew within what county that liberty or franchise doth lie. Trin. 23. Car. B. R. For the franchise hath no relation to the county. S. P. R. 404.
[55] And quære whether mandate be ever pleaded to be under the hand of the sheriff.
Nota, that mandavi does not mean, and of course should not be translated, I have commanded, but I have sent to. The sheriff cannot command the bailiff of the franchise, having no sort of authority over him in any case whatever.