THE PRACTICE

OF

THE OFFICE OF SHERIFF.

CHAPTER I.

SECTION I.

GENERAL OBSERVATIONS.

C

THE Sheriff is an officer of great antiquity in this Kingdom. He was an officer and minister of Justice long before the Conquest; a as some say, à principio legis. His name is composed of the two Anglo-Saxon words-scyr (shire) and gerefa (reeve or keeper). During the Anglo-Norman period of our history he also acquired the name of Viscount; and, with a new name, he acquired new duties; he had the wardship of the County committed to him, when the Counts, whose charge it was, were obliged to go away to attend on the person of their Sovereign. The Gerefa and the Count may be supposed to have been in the relation of our present Sheriff and Lord Lieutenant; or, perhaps, the Sciregerefa was the fiscal officer, and the Count the general guardian of the County, when a part of his duties, for the reasons alleged, were transferred to the Sciregerefa. The word Viscount would seem to imply delegation. The earliest records, however, not only give no trace of any dependence of the Viscount upon the Count, but show, most clearly, that the former was then as absolutely independent of the latter as the Sheriff is, at this day, independent of every other subject. The Latin words, so often quoted, vicecomes dicitur, quòd vicem Comitis suppleat, properly admit of this construction; for the word vicis as often means a change by way of succession as by substitution.d Lord Coke says that Count,

a 3 Rep. Pref. 11, 12; 9 Ib. Pref. 6; Co. Litt. 168 a; Dalton's Sheriff, 1; 1 Bl. Comm. 339 a; Bac. Abr. (Sheriff'); Fortescue, de Laud. Leg. Angliæ (Edit. Amos).

b Doderidge, J., 1 Roll Rep. 364. Mirror of Justices, c. 1, s. 3; Seld. Tit. Hon. p. 2, c. 3, s. 20; An

cient Laws and Institutes of England, Gloss. See Lye's Dict., Sax. et GothicoLat. (Edit. Manning, 1777); Wilkins Lex. Angl.-Sax. 199; Lambard's Archaionomia; Bosworth's Anglo-Saxon Dict. (Tit. Scyr Gerefd.)

See Facciolati Lex. (Tit. Vicis.)

B

Shire.

Quillets.

Viscount, and Comitatus, were called by the Romans, Consul, Pro-Consul, and Consulatum. By this he means that the offices were the same under different names. This has, however, been doubted by men of great authority. The Roman and the AngloSaxon did not differ, in race, more than the Pro-Consul and Viscount did, in office. They had little or nothing in common; and were it not for the suggestions of so great a lawyer, this idea would be well nigh without authority.

He has, according to Lord Coke, a threefold custody, viz.: 1, vitæ justitiæ, for no suit begins, and no process is served, but by the Sheriff; also he is to return indifferent juries, for the trial of men's lives, liberties, lands, and goods: 2, vitæ legis, he is after suit chargeable to make execution, which is the life and fruit of the law: 3, vitæ reipublicæ, he is principal conservator pacis, within the County, which is the life of the Commonwealth, vita reipublicæ pax. In these different characters he will appear, in the course of the present work. A few preliminary propositions, however, will simplify the task.

A Shire or County is one of those several divisions, into which the realm is divided, for the better government of it, and the more easy administration of justice.c The author of the Mirror of Justices, Speed, and others, attribute this division of the realm to Elfred; but we find Scyr, Scyre-Gerefa, Scyrman, Scyregemote, &c., long before his time. This, necessarily, supposes the existence of a scyre before. "I have heard (says Fuller) some critics making this distinction betwixt that such are shires which take their denomination from some principal town, as Cambridgeshire, Oxfordshire, &c., whilst the rest, not wearing the name of any town, are to be reputed counties, as Norfolk, Suffolk, &c.; but, we need not go into Wales, to confute their curiosity, where we meet Merionethshire and Glamorganshire, but no towns so termed; nay, Devonshire doth discompose this their English conceit. Of this division of the realm into counties or shires, our Courts take official notice; but the local situation of any place in any county, the Courts do not officially notice.

" f

There is no part of the kingdom that lies not in some county.h There are certain districts or places, parcel of one county, within the boundaries of another; these districts or places are called Quillets; and were, within memory, productive of inconvenience in the execution of process of the Superior Courts by reason of their locality; but this has been remedied by the legislature; k and they now, for all purposes, form part of that county of which

a Hargrave's Note, Co. Litt. 168 a.
b Co. Litt. 168; Dalt. c. 5.

c Fort. de Laud. Leg. Angl., c. 24
(edit. Amos); Co. Litt. 125 a; 1 Bl.
Comm. 116.

d Andrew Home, A.D. 1080.

e P. 1, n. a.

f C. xviii.

Deybel's case, 4 B. & A. 243;

1 Salk. Rep. 266; see Brune v. Thomp
son,
2 Q. B. 790.

h Fort. c. xxiv.; Jenk. Rep. Ca. 7. i See Hearne's Coll. 50; 2 & 3 Will. 4, c. 64, Sch. M.

* See 2 Will. 4, c. 30, s. 20; 2 & 3 Vict. c. 82; 7 & 8 Vict. c. 61; 7 & 8 Vict. c. 92.

they are considered parts, for the purposes of the election of members to serve in Parliament, as knights of the shire, under the 2 & 3 Will. 4, c. 64.

A Sheriff, in former times, had, often, more counties than one under his charge. The Sheriff of Cambridge, who is now Sheriff of Huntingdon also, affords an existing example; London and Middlesex affords another.a

In England and Wales, there are 52 Counties. The former is divided into 40; and the latter into 12. In EnglandBedford, Berks, Bucks, Cambridge, Chester, Cornwall, Cumberland, Derby, Devon, Dorset, Durham, Essex, Gloucester, Hereford, Hertford, Huntingdon, Kent, Lancaster, Leicester, Lincoln, Middlesex, Monmouth, Norfolk, Northampton, Northumberland, Nottingham, Oxford, Rutland, Salop (or Shropshire), Somerset, Stafford, Suffolk, Surrey, Sussex, Southampton (or Hampshire), Warwick, Westmoreland, Worcester, Wilts, York. In WalesAnglesea, Caernarvon, Denbigh, Flint, Merioneth, Montgomery, Brecknock, Cardigan, Caermarthen, Glamorgan, Pembroke, Radnor. The Counties of Durham, Lancaster, Chester, and Middle- Counties sex require a separate note. The first three are Counties Palatine, Palatine. the last is said to be in perpetual fee farm, to the mayor and commonalty and citizens of London. Durham was a county palatine by prescription held by the Bishop of Durham. It is now, by the 6 & 7 Will. 4, c. 19, held by H. M., as a franchise and royalty separate from the Crown." Lancashire, on the attainder of Hen. 6 (1 Edw. 4), became forfeited; and was then, by act of parliament, vested in K. Edw. 4th and his heirs-K. of England— for ever; but under a separate guiding and governance from the other inheritances of the crown.c By the 11 Geo. 4, and 1 Will. 4, the power, authority, and jurisdiction of the Court of Session, of the County Palatine of Chester, and of the judges thereof, and of the Court of Exchequer there, and of the chamberlain and vicechamberlain thereof, and also of the judges and Courts of Great Sessions, both in law and equity, in the Principality of Wales, ceased and determined; and the jurisdiction of the Courts at Westminster was, instead, extended to them. Notwithstanding, Cheshire is still a county palatine. From the year 1202 to 1850 Westmoreland was held, like Middlesex, in perpetual fee farm by a subject. But on the death of the late Henry, Earl of Thanet, the appointment to the office of High Sheriff was vested in Her Majesty.d

Middlesex was, by a charter of Hen. 1 (confirmed by K. John), vested in fee in the mayor and commonalty and citizens of the city

a See 1 Camd. Brit. 344 (edit. Gibson); Wilkes' case, 4 Burr. 2560; Fort. c. xxiv.; Mad. Exch. p. 635; Gilb. C.B.15.

b See Bracton, lib. iii. c. 8, s. 4; 4 Inst. 204; 5 Cromp. Juris. 137; 1 Danv. Abr. 750; Dalt. p. 2, Del Countie Palatine; Sir J. Davis, 62.

c Co. Litt. 170; 4 Inst. 204; Plowd. 215; T. Raym. 138; 1 Ventr. Rep. 155, 157; 4 Inst. 245: as to the appointment of High Sheriff, see c. 1,

8. 3.

d 13 & 14 Vict. c. 30.

of London, upon condition of their paying 300l. a year to the King's exchequer. By an act of Common Council, dated 7th of April, 1748, it is ordered (amongst other things) "That henceforth the right of electing persons, to the said offices of Sheriffalty, shall be, and the same is hereby vested in the liverymen of the several companies of this city," &c. The Sheriff of a County Palatine, and of Middlesex, is, to a Court of Justice, what the Sheriff of an another County is; they differ only in the mode of their appointment, manner of accounting, and the like.

By the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76, s. 122), "all writs of every description issuing out of the Superior Courts of Common Law at Westminster to be executed in the Counties Palatine shall be directed and delivered to the Sheriffs of such Counties and executed and returned by them to the Courts out of which such writs are issued in the same manner in all respects as writs are executed and returned by the Sheriffs of other Counties."

The Sovereign, it is said, may, at pleasure, make any County a County Palatine.a

In the City of Oxford, in the Town of Berwick upon Tweed, and in the Counties of the Cities of Bristol, Canterbury, Chester, Exeter, Gloucester, Lichfield, Lincoln, Norwich, Worcester and York, and in the Counties of the Towns of Caermarthen, Haverfordwest, Kingston-upon-Hull, Newcastle-upon-Tyne, Nottingham, Poole and Southampton, the Council appoint, on the 9th of Nov. every year, a fit person to execute the office of Sheriff."

Some of these Counties Corporate had, before the Municipal Corporation Act, as London still has, two Sheriffs constituting in law but one officer.c

There are certain Ports, wherein the Constable of Dover Castle, as Lord Warden, executes all writs, &c.; their names are Dover, Sandwich, Romney, Hastings, Hythe, Winchelsea and Rye;" they are called Cinque ports.

A Franchise or Liberty, as the term is here used, is a royal privilege, or branch of the Royal prerogative, vested in a subject, who in person, or by proxy, executes the civil process of the law therein. All liberties are officially noticed by the Courts. The High Sheriff is, likewise, bound to notice them.f A Bailiwick is, now, in general, used to signify Sheriffwick, or the whole county, as in the return of a writ, where the person is not arrested, the Sheriff says, "the within-named A. B. is not found

a

Vaugh. Rep. 418; 4 Inst. 201.

b 5 & 6 Will. 4, c. 76, s. 61; see Grainger v. Taunton, 5 Dowl. 190.

c See Bac. Abr. Sheriff, K.; Vin. Abr. Sheriff, C. a, pl. 1. Although, as a general rule, the two constitute in law but one officer, yet, for some purposes, they are separate officers. Thompson v.

Farden, 1 Sc. N. R. 282; Letsom v.
Bickley, 5 M. & S. 144.

d Jurisdiction, see 1 & 2 Geo. 4, c. 76, s. 18; Jeak's Cinque Ports, Itin.

e Boothman v. Surrey, 2 T. R. 5; Carrett v. Smallpage, 9 East, 338; Newland v. Cliffe, 3 B. & Ad. 633. f Ibid.