Page images

duly éxecute all writs delivered to him for execution whether from a Court of law or equity; AND ALSO if the said Bailiff shall make a true return and inventory of all goods and chattels seized in execution by him as Bailiff to the said Sheriff and if he shall before removal thereof pay to the landlord the rent in arrear not exceeding one year and all taxes due in respect thereof pursuant to the statute and shall indemnify the said Sheriff on account of any mistake or default relating thereto; AND ALSO if the said Bailiff shall pay to the said Sheriff or Under-sheriff the consideration or purchase-money mentioned in every bill of sale or assignment executed by the said Sheriff or Under-sheriff at the request of the said Bailiff notwithstanding the acknowledgment of the receipt thereof by the said Sheriff contained in any such Bill of sale or assignment; AND ALSO if the said Bailiff shall and will forthwith pay to the said Sheriff or Under-sheriff all monies received by the said Bailiff on any arrest or levy by him made or with which he shall be entrusted for the said Sheriff without deduction; AND ALSO if the said Bailiff shall in all things truly and honestly demean and behave himself as Bailiff aforesaid and faithfully and diligently serve and attend the said Sheriff his Under-sheriff and their deputies and in due and lawful manner all their and every of their lawful commands or directions touching any manner of service incident or belonging to the said office of Sheriff shall and will execute and perform; AND ALSO if the said Bailiff and his sureties some or one of them shall indemnify and save harmless the said Sheriff and his Under-sheriff from all damages loss costs and charges which they or either of them shall or may suffer sustain or be put unto or be liable to suffer sustain or be put unto for or by reason of the nonfeazance malfeazance or misfeazance of the said Bailiff or for or by reason of the payment of any money by the said Sheriff Under-sheriff or deputies to any person or persons or by reason of any return to any writ of process made by the said Sheriff Under-sheriff or deputies at the request of the said Bailiff; AND ALSO if the said Bailiff and his said sureties some or one of them their or some one of their heirs executors or administrators shall and will save harmless and indemnified the said Sheriff and Under-sheriff their and each of their executors and administrators from and against all actions suits fines and amerciaments penalties contempts forfeitures loss costs charges damages and expenses which may be commenced prosecuted imposed or set upon them or either of them or which they or any or either of them may suffer pay or be liable unto for or by reason of any extortion or escape happening by the act or default of the said Bailiff or for or by reason of the executing not executing returning not returning or mis-return of any writ process mandate precept or warrant the not taking bail or pledges taking insufficient bail or pledges the not bringing into Court the body of any defendant or any other cause whatsoever happening by or arising from the act or omission of the said Bailiff then the above-written obligation shall be void otherwise to be and remain in full force and virtue.

Bound-Bailiffs Oath.

Before he take upon him to impanel or return any inquest, jury, or tales, or intermeddle with the execution of process, in any Court of Record, under the penalty of 40l., he must receive and take the following oath, prescribed by 27 Eliz. c. 12, s. 2. It is made before the justices of assize, or one of them, of the same circuit wherein that county is whereof he shall be Bailiff; or before the custos rotulorum, or two justices of the peace, whereof one to be of the Quorum of the said county whereof he shall be Bailiff; or before the head officer of the place, if it be a town corporate.

I A. B. shall not use or exercise the office of Bailiff corruptly during the time that I shall remain therein neither shall or will accept receive or take by any colour means or device whatsoever or consent to the taking of any manner of fee or reward of any person or persons for the impanelling or returning of any inquest jury or tales in any Court of Record for the Queen or betwixt party and party above two shillings or the value thereof or such fees as are allowed and appointed for the same

Consequence of

by the laws and statutes of this realm but will according to my power truly and indifferently with convenient speed impanel all jurors and return all such writ or writs touching the same as shall appertain to be done by my duty or office during the time that I shall remain in the said office. So help me God.

The Under-sheriff, as before observed, is the general servant of the High Sheriff, in all his ministerial duties; but, between a Bound-bailiff and a High Sheriff there is no such general connection. The true character of the Bailiff is this: he is appointed by the High Sheriff to act on each occasion of executing process wherein he is concerned; in other words, when a warrant is granted to him, he becomes the special officer of the High Sheriff for that individual occasion, and no more.a This distinction is of great importance in practice. But as the evidence to connect the Under-sheriff and Bailiff with their principal (the High Sheriff), as well as his responsibility for the wrongful acts of his Bailiff, must be fully considered hereafter, I proceed to examine the character of those who fall under the second division, namely, Special Bailiffs; premising only, in addition, with regard to the Undersheriff's admissions, that the doctrine above laid down has been much restricted by the case of Snowball v. Goodricke, wherein it was decided that admissions of the Under-sheriff are not evidence against the Sheriff, unless they accompany some official act, or tend to charge himself. A Bound-bailiff is not judicially noticed by the Courts.


A Special Bailiff is one nominated by the plaintiff in the cause, or by his attorney, and appointed by the High Sheriff pro hac vice. For his acts, so long as the special agency continues, the High Sheriff is not responsible. Where there is an express appointment of a Special Bailiff, no difficulty can well arise; but where such appointing. an appointment is to be inferred from circumstances, it is otherwise; and has been the cause of much argument in the different Courts. The result of the various authorities may fairly be stated to be this: that the appointing a Special Bailiff, or the giving special directions to a Bound-bailiff, or any interference of the attorney with the execution of the process, discharges the High Sheriff from all liability, so long as the agency of the Special Bailiff continues. And he was held discharged by the plaintiff's appointing a Special Bailiff to manage the sale, although he returned, that he had sold, and that he had paid the sum illegally What does deducted for the auction. But, the mere expression of a wish or a request by the attorney, that an officer, usually employed, may

not constitute such an appoint


[blocks in formation]

execute the writ, does not constitute the latter the plaintiff's agent. Whether anything said, written, or done, amounts to an appointment of a Special Bailiff, is a question of fact rather than of law. After the appointment of a Special Bailiff, the Sheriff cannot be ruled to return the writ.b


The Bailiff of a Liberty is one appointed by the lord of a liberty to execute process, and to do such offices therein as the common Bailiff, called in the old books Bailiff Errant, does within the county.c



He is an independent officer; yet, as there is some connection Relation to between them, arising out of the execution of process within the High Sheliberty, it is important to determine the nature of that connection; and herein also of the Sheriff's right and duty to enter the franchise. The High Sheriff, as already observed, is the immediate officer of all the Courts at Westminster; and to him, as such, all writs are directed, although relating to a thing to be done within a liberty or franchise.e If the writ contains what is commonly Effect of called the non omillas clause, the liberty is thereby made pro hac non omittus, vice parcel of the Sheriff's bailiwick; and the Sheriff must enter &c. the liberty, and execute the writ there;f but, if the writ does not contain the non omittas clause, it ought to be executed by the Bailiff of the liberty, to whom the Sheriff directs his mandate for that purpose. If the Sheriff's officer enter a liberty, under a writ not containing the non omittas clause, and there execute it, such execution is not irregular. It is, however, an infringement of the lord's rights, and he may claim compensation for the injury.h In Rex v. Mead and another, the indictment was, under the stat. of 43 Geo. 3, c. 58, for maliciously cutting one J. T. with an axe, with intent to murder him. The alleged crime was committed when J. T. was in the act of assisting in the execution of a warrant (the writ not containing an omittas clause), within the Liberty of L- having exclusive jurisdiction in such a case. Wood, B. was of opinion that a Bailiff, under such circumstances, must be considered as a trespasser, and the prisoners were acquitted. It seems, that when the Bailiff of a franchise is addressed as an officer or bailiff of the Sheriff, he may waive his franchise, and act upon the warrant, as an ordinary Sheriff's officer.

a 1 N. & P. 737; Anderson v. Davenport, 13 M. & W. 46.

b Harding v. Holder, 9 Dowl. 659. c See Dalt. ch. 117; Ritson's Office of Bailiff of a Liberty; Gilb. Hist. C. B. 25 (3rd Edit.); Newland v. Cliffe, 3 B. & Ad. 641.

d Dalt. ch. 117; Boothman v. Surrey, 2 T. R. 5; Jackson v. Hill, 10 Ad. & E. 484.

Dalt. ch. 40, 117; Carrett v. Small-
page, 9 East, 330; Bowring v. Pritch -
ard, 14 East, 289.

f Adams v. Osbaldeston, 3 B. & Ad.490.
Ib.; Newland v. Cliffe, 3 B. & Ad.


Dalt. ch. 117; Boothman v. Earl of Surrey, 2 T. R. 5.

i2 Stark. 207; Patteson, J. in Jackson v. Hill, 10 Ad. & E. 493.

In what writs inserted.

The only common law writs, containing the non omittas clause, are those issued by the Court of Exchequer. The equity writs, the bankruptcy writs, issued under the Bankrupt Law Consolidation Act, 1849, (12 & 13 Vict. c. 106,) are without the non omittas clause. The Sheriff may, ex officio, and without any writ of non omittas, enter the franchise and execute his office whenever the Queen is a party; as in every felony, or suspicion of felony, or otherwise in any action. So where the High Sheriff is both judge and officer. So where the Bailiff makes no return to the Sheriff's mandate. So where the distress is taken within a franchise, and the Bailiff of the franchise will not deliver them, the Sheriff, upon complaint to him made, must enter and deliver them. So by the 8 & 9 Vict. c. 72, s. 4, in executing a capias, or ca. sa., or any other process against the person, the Sheriff of the county of York (whether the writ contains the non omittas clause or not) is bound to enter the liberty of the Honour of Pontefract and execute the writ. The Bailiff of a Liberty, having the return of writs, cannot arrest a man without authority from the Sheriff, derived from the writ in his hands. He must make his return to the Sheriff, and not to the Court. If he arrest one by a warrant upon a capias, to him directed from the Sheriff, the obligation, taken for the appearance of the party, must be made to the Sheriff and be in the Sheriff's name. Whether the Sheriff should direct his mandate to the lord or to the Bailiff of the franchise; or whether in the lord's name, or in that of his deputy, the returns, and other ministerial acts, are to be done, are questions that derive much How man- light from Newland v. Cliffe: it seems that where the grantee of the Crown has, by his Bailiff, the full return of all writs within a certain district, the mandate may be directed to the Bailiff by name, and the return made in his name; but if the grant contain no such special provision, the Bailiff is but the lord's deputy, and all things must be done in the name of the principal. It may reasonably be asked, how the High Sheriff is to know whether the grant contain such a provision or not? The answer is, that if he can obtain no certain knowledge of the fact, nor of the usual practice (which cannot well happen), the only safe course is to direct his mandate to the lord, as principal, and not to the Bailiff. All lords that have franchises, or their Bailiffs, shall attend upon the justices of assize and gaol delivery, on pain of forfeiture of their franchises; and all such Bailiffs, or their deputies, must attend upon and assist the Sheriff at all courts of gaol delivery, the execution of convicts, &c.e When the Bailiff of a certain liberty had regularly attended the Quarter Sessions, and made returns of the jurors resident within the liberty, a fine was imposed upon him for refusing to summon a jury to attend at

date directed to Lord or Bailiff.


Reg. Gen. Hil. T. Sch. 1853.

b Dalt. ch. 117.

c Ib.; Carrett v. Smallpage, 9 East,

d Dalt. ch. 117.

e 3 B. & Ad. 630.

[ocr errors]

such sessions, in obedience to the Sheriff's precept, and held good. A Bailiff of a Liberty is an officer judicially noticed by the Courts.b



In every county in England and Wales there must be one common gaol. The High Sheriff has, ex officio, the custody of it; except where it has been granted by the Crown to some person spiritual, temporal, or body corporate. But, though lords of franchises, as well as the Sheriff, may have the custody of the gaol, it is still the Queen's gaol pro bono publico.d The gaoler or keeper is, By whom except as aforesaid, appointed by the High Sheriff, and is his appointed, minister. Matrons, &c., are appointed by the Justices. The &c. gaoler is paid by a salary fixed by the Justices, at the General or Quarter Sessions. They have, also, the power to give him, out of the public purse, a superannuation allowance.

No woman

can be keeper of a gaol where male prisoners are confined. He must not be an Under-sheriff nor Bailiff; nor concerned in any Disabilities. occupation or trade; nor can he, or any one on his behalf, sell anything to a prisoner; or have any interest in any contract for the supply of the prison.

Since the Gaol Consolidation Act (4 Geo. 4, c. 64) passed, several amendments have been made, especially by the 5 Geo. 4, c. 12; 5 Geo. 4, c. 85; 6 Geo. 4, c. 40; 7 Geo. 4, c. 18; 2 & 3 Vict. c. 56; and 3 & 4 Vict. c. 25, relating to the rules and regulations of prisons, and the classification of prisoners.f Inspectors of Prisons were appointed under the 5 & 6 Will. 4, c. 38. The 3 & 4 Vict. c. 65, s. 20, relates to persons committed by the Court of Admiralty, or by Admiralty Coroners. The 10 & 11 Vict. c. 12, s. 40, relates to military prisoners; the 10 & 11 Vict. c. 13, s. 43, to the marine forces; and the 10 & 11 Vict. c. 62, s. 12, provides a naval prison. The Queen's prison is regulated by the 5 & 6 Vict. c. 22, and 11 & 12 Vict. c. 7. The Municipal Corporation Act (6 & 7 Will. 4, c. 103), and subsequent amendment Acts, provide for those within their limits. Besides the gaol for matters of the Crown, Debtors, &c. he has a place of confinement for persons in his custody for matters other than for offences against public policy. This gaol, or place of confinement, is usually, but not necessarily, under the roof of the county gaol. It may be anywhere in the county, or may be removed from one place to another within his jurisdiction. Yet, he must keep his prisoner in it. For if he allow a prisoner,

[blocks in formation]
« PreviousContinue »