Chapter IX: Pleadings

[Sidenote: Creation.]

One may be bailiff by a simple grant (_i. e._ by parol) or patent or inheritance, and therefore no need to shew how. _H. 33. H. 6. [3.]_ _Fitz. Monstrauns de faitz, &c._ 93. and _Br. Bailie_. 2.

[Sidenote: Patent.]

[Sidenote: Duchy.]

[Sidenote: Aid of the King.]

Where a man justifies distress as the Kings bailiff of his manor, for rent or services arrear, and prays aid of the King, he shall have it without shewing patent how he is made bailiff, for he claims to the use of the King; but where he claims to his own use by the King, there he ought to shew patent; and it was held by the serjeants, that if a man justify as bailiff of the King by reason of his manor which he hath by reason of the duchy of Lancaster, that the defendant shall not have aid of the King before issue joined. _15 H. 7. 17._ _Br. Ayde del roy_, 51.

[Sidenote: Corporation.]

Bailiffs of a corporation (in avowry for beasts taken _damage feasant_) need not shew how the corporation was incorporated, nor say by their precept, nor need precept be in writing for such a matter as this. _3 Lev._ 107.

[Sidenote: Distress.]

Bailiff who distrains ought to shew in what right he distrains. _7 H. 4. 28._ _Br. Distresse_, 78.

[Sidenote: Distress for amerciament.]

To bailiff justifying distress for amerciament, it sufficeth to take conusance of the presentment and no more and _non refert_ as to him, whether it be true or not. _41 Ed. 3. 27._ _24 Ed. 3. 26._ _Cro. Eliz._ 748.

Bailiff justifying distress for amerciament, in trespass ought to set out some estreat of the court or warrant from the steward, and justify under that. _1 Salk._ 108.

Bailiff justifying distress for amerciament in leet in trespass may plead _presentatum fuit_ without averring the fact, for _non refert_ as to him whether the offence was done or not since there was a presentment: a difference between replevin and trespass; in the first the bailiff is an actor, and is to recover, which shall be upon the merits; in trespass he is only to excuse the wrong. _1 Salk. 107._ _3 Salk. 52._

[Sidenote: Exchequer.]

If a man be amerced in the Kings leet, and upon process out of the exchequer the bailiff distrains him for the amercement, and he brings trespass, he ought to bring this action of trespass in the office of pleas of the exchequer, for the bailiff levyed it as officer of this court. _1 Roll. Abr._ 539. and _vide_ _Lane_, 55.

[Sidenote: Averment.]

If bailiff do any thing which touches his bailiwick, as payment of rents and such like, which are due in right of the manor, it is reasonable that he should have the averment, but of a thing which doth not touch his bailiwick it is not reasonable that he should have the averment without warrantry. _42 E. 3. 6._ _Br. Accompt._ 26.

Where bailiff of franchise [under _23 H. 6. c. 9._] takes bailbond, to himself, by the name of his office, sufficient in pleading to shew generally that he is such a person as had authority to take bail. _Comyns_, 380.

Debt upon bond by the plaintiff who was chief bailiff of the liberty of Pontefract in Yorkshire, but he did not declare as _capital' ballivus_, but yet by the whole court it was held good; for otherwise the defendant might have craved _oyer_, and have [had] it entered _in hæc verba_, and then have pleaded the statute of _23 H. 6._ that it was taken _colore officii_, but now it shall be intended good upon the demurrer to the declaration. And _Ellis, J._ said, that so it was lately resolved in this court in the case of one Conquest. And judgement was given for the plaintiff. _2 Mod._ 36.

[Sidenote: Inferior court.]

Bailiff of an inferior court the process whereof he executes, must shew the jurisdiction of that court in pleadings. _1 Keble_, 53.

[Sidenote: Trial.]

Cary bailiff of Westminster _v._ Buckhurst for entering his liberty and executing a _fi. fa._ Demurrer that it doth not appear how plaintiff was seized of the office. Judgement for plaintiff, inquiry of damages to 49l. Affirmed in error. Upon a trial the right must have been proved if the defendant had taken issue, and no inconvenience in this form of declaring. _1 Show_, 17. _Comb._ 31. _S. C._

[Sidenote: Tort.]

Where a bailiff is charged directly with a tort, it ought to be shewn that he is bailiff of a liberty, who has _Returna Brevium_. _Comyns_, 379.

[Sidenote: Declaration v. bailiff.]

Declaration against bailiff of Westminster, because plaintiff doth not say of what liberty he is bailiff, and whether he hath execution and return, bad; because otherwise no colour to charge him, and therefore ought to be specially shewn. _Cro. Car._ 330.

[Sidenote: Pernor.]

[Sidenote: Quo warranto.]

Against a _pernor_ the plaintiff need not shew how he claims the privilege of return of writs; but in a _quo warranto_ where the defendant must make a title he ought to shew it. _Hardres_, 423.

[Sidenote: Return of the writ.]

Bailiff of a liberty in justification need not shew the return of the writ. _Cro. Car._ 447.

[Sidenote: Sheriffs return.]

_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.

[Sidenote: 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]

[Sidenote: 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.