Camera regis, or, A short view of London containing the antiquity, fame, walls, bridge, river, gates, tower, cathedral, officers, courts, customs, franchises, &c. of that renowned city / collected out of law & history and methodized for the benefit of the present inhabitants by John Brydall ...

4. The Sheriffs.

BEfore I speak in particular of the Sheriffs of London, I shall present to the Reader several Queries, (with resolutions given unto them out of our books of Law) touching Sheriffs in general. For the better Information of all such Officers through the whole Kingdom.

Quaere 1. Whence the word Sheriffs is derived?

Resp. Sheriff is a word compounded of two Saxon words, viz. Shire, and Reve, Shire, Satrapia, or Comitatus, cometh out of the Saxon verb Shiram, i. e. partivi, for that the whole Realm is parted, and divided into Shires.* 1.1 And Reve is praefectus, or praepositus; so as Shireve is the Rive of the Shire, Prae∣fectus Satrapiae, Provinciae, or Comita∣tus; And he is called Praefectus, because he is the chief officer to the King within the Shire; for the words of his patent be Commissimus vobis custodiam Comita∣tus nostri, &c.

Quere 2. How a Sheriff was,* 1.2 and is to be elected?

Resp. It is to be known, that the office of a Coroner ever was, and yet is eligible in full County by the Free∣holders, by the Kings writ, de Coro∣natore eligendo: and the reason thereof was, for that both the King, and the County had a great interest,* 1.3 and be∣nefit in the due execution of his office; and therefore the Common Law gave the Freeholders of the County, to be electers of him. And for the same reason of ancient time the Sheriff called Vice-Comes, who had Custodiam Comitatus, was also eligible: for, first the Earl himself of the County had the office of the Sheriff of the County, and when he gave it over, the Vice-Comes (as the word signifieth) came instead of the Earl, and was eligible by the Free∣holders of the County; but this way by election is altered by divers Acts of Par∣liament,* 1.4 viz the Act. of 9. E. 2. Lincolne de Vice-Comitibus 14. E. 3.12. R. 2. & 23. H. 6. vide the Statuts themselves.

Quaere 3. Whether the Day of the Billing of Sheriffs, may be deferred from the usual day?

Resp. Upon the sixth of November the Term of Michael 16. Car. Regis, the

Lord Keeper of the great Seal, the Lord Treasurer, the Lord privy Seal, Earl of Arundel, Earl Marshall, the Earl of Pembrok, Lord Chamberlin,* 1.5 the Lord Cotington Chancellor of the Exchequer, were assembled in the Exchequer Cham∣ber, to nominate three persons, of every County throughout England, to be presented unto the King, that he might prick one of them, to be Sheriff of every County, which is usually done according to the Statute upon the 3. of Nov, being Crastino animarum; But because it was the first day of Parliament, and the Lords were to attend the King, It was resolved by the advise, and resolution of the Major part of the Justices, with whom Con∣ference was had in this cause, that it might be well put off to another day. And the Lord Keeper notwithstanding the Statute deferred it until this day.

Quaere 4. In what the office of the Sheriff doth consist?

Resp. It belongeth to the Sheriff, to serve the Kings writs of pro∣cess, be they summons, or Attachments, to compell men to answer, to the Law, and all writs of execution of the Law, according to judgments of superior

Courts, for taking mens goods, Lands or bodies, as the cause requireth; and by the Order of the Common Law, and Statutes of the Realm, he may for the better execution of his Majesties writs, and process of Law, after resistance, take posse Comitutus.

He is to return indifferent Juries, for the Tryal of mens Lives, Liberties, Lands, and Goods.

He ought to see, that the publique Peace be kept, which is the Life of the Commonwealth; and therefore he is said to be Principalis Conservator Pacis, within the County.

It is his duty, to gather the publique monies, and profits of the Prince in his County, to collect, and bring into the Exchequer, all fines imposed, even by distreining.

He is to see condemned persons exe∣cuted. To conclude, he is to determine, and examine certain smaller pleas Civil and Criminal; the former are decided in the County Court; the latter in his Court, called the Town.

Quaere 5. If one be in the Sheriffs Custody, by process of Law, and then another writ is delivered to apprehend

the body of the party, that is already in Custody, whether he be in Custody by vertue of the second writ, without an Actual Arrest?

Resp. It was adjudged,* 1.6 that when a man is in Custody of the Sheriff, by process of the Law, and afterward another writ is delivered unto him, to ap∣prehend the body of him, who is already in Custody; Immediatly he is in Custody, by force of the second writ, by judgment of Law, although he make no actual Arrest of him, for to what purpose should the Sheriff arrest the party, that is already in Custody; and Lex non praecipit inutilia; quia inutilis Labor est stultus.

Quaere 6. Whether a Sheriff, Bailiff, &c. may arrest one without shewing the warrant?

Resp. It was adjudged,* 1.7 that an Arrest without shewing the warrant, and without telling at whose suit, until the party demand, is Legal, and well enough, and that he need not shew the warrant, until the other obey, and demand it.

Quaere 7. Whether an Arrest made in the night be good.

Resp. It is said, that an Arrest made in

the night time is valid in Law. Cro. 2. part. Mackaleyes Case Co. lib. 9. Macka∣leyes Case.

Quaere 8. Whether Arrests be good on the Sunday.

Resp. An Arrest upon the Sunday, and other ministerial Acts are good, but not judicial Acts; for a judicial writ bearing Teste upon a Sunday, or a Proclamation of affine upon a Sunday are ill,* 1.8 and erro∣nious; for they shall be intended, as fictions, because it is well known the Court do not sit that day, but an ori∣ginal writ, or patent, bearing Teste upon the Sunday, are good enough, for the Chancellor may seal writs, or patents upon any day.

An Arrest made by a Sheriff, or his Officer,* 1.9 is valid, although it be done upon a Sunday.

Quaere 9. In what Cases a Sheriff may break open houses to execute pro∣cess?

Resp. As to this Quaere take these particularities, sc.

1. When any house is recovered by any Real Action, or by Ejectione firmae, the Sheriff may break the house, and deliver seizin or possession.

2. In all cases, where the King is party, the Sheriff may break the house (if the doors be shut) and make execution of his writ, but before he break the house, he ought to signify the cause of his coming, and make request to have the Doors opened: but if the Officer break the house, when he might have the Doors opened, he is a Trespasser; for felony, or suspition of felony the officer may break open the door.

3. The Sheriff cannot break open an house upon private process; neither can he upon private process rush into a house, which by craft, as knocking at the door &c. he procured to be opened unto him.

4. In all Cases where the door is open, the Sheriff may enter, and make execution of his writ, either for body, or goods, at the suit of a subject.

5. The Sheriff at the suit of Com∣mon person (upon request made, and denial thereof) ought not to break open the doors, or the house, to exe∣cute any process at the suit of any subject; or to execute a Fierifac. Being a writ of execution, but he is a Tres∣passer, yet if he do execution in the

house it is good in Law, being done; according to the rule of Law; sunt multa, quae impediunt promovendum, quae non dejiciunt jam prometum.

6. The house of a man is not a Castle, or defence for any other person, but for the owner, his family and goods, and not to protect another, that flyeth into the same, or the goods of another, for then the Sheriff upon Request, and denial, may break the house, and do execution.

7. Although, a Sheriff cannot break open an house, being to take execution by fieri facias, yet when the Door is open, that he enters, and be disturbed in his execution by the parties, who are within the house, he may break the house, to rescue his Bayliffs, and to take execution. Vide all these particulars Cro. 1. part. Seyman vers. Gresham. Co. lib. 5. Semaines case. Hobarts Reports, Water house vers. Salt-marsh, Parke and Percival vers. Evans. Cro. 1. part. Smith ver. Smith. Yelvertons Reports Seyman vers. Gresham. Cro. 2. part. Aenonymus f. 555. pl. 19.18. E. 4.4.13. E. 4.9.

Quaere 10. Whether a writ, or Com∣mission

may be awarded to a Sheriff, to enquire of the Death of a man?

Res. It was found before the Coroner, super visam corporis,* 1.10 that J. Harleston fell into a Marlepit fortuito, and so died. Afterwards by the procurement of the Queens Almoner a Commission issued out of the Crown Office (Quaesi in nature of a Melius Inquirendum) and was awarded to the Sheriff to enquire of his death, and of what goods, and Chattells, he was possessed at the time of his death. And it was found before the Sheriff, that he was felo de se, &c. It was moved, that the writ, or Commission was not well awarded, but utterly void; for the Stat. of 28. E. 3. c. 9. is expressely, that no such Commission shall be granted, and that the Sheriff shall not take Indictment by writ, or Commission. But Ive, the Clerk said, that they have divers Presidents, since that Statute, of such Commissions awarded.

Quaere 11. Whether Rescous be a good Return upon mean process?

Resp. It has been adjudged, that in an Arrest upon mean process, and not upon execution, the Sheriffs are not bound to take the poss•• Comitatas with

them,* 1.11 and therefore upon such process, it is a good return, the Rescous, and that afterwards he was not found within their Bayliwick; and process shall, thereupon be awarded against the Re∣scussours: But if the Prisoner had been in the Goal, the Sheriff ought at his peril to keep him, and a Rescous from thence is no excuse for him: And upon process of execution, as upon a Capias ad satisfac. or upon a Capias ut legatum, after judgement, such a Return is no excuse for him, either against the King, or the party; for he at his peril ought to keep his prisoners taken in execution; for there the process is determined▪ which being the Life of the Law, and being once executed, the party may not have any new process, and therefore he shall answer to the party for the escape. And it is at the Sheriffs peril, to see that his prison be strong enough, to keep his prisoner, when he is once in execution. And being a mischeif to one it ought rather to fall on the Sheriff than on the party: But in the other cas•• there is not any great mischief, for th•• party hath only lost his process, which he may renew; and he may also have

an Action upon the Case against the Rescussours.

Quaere 12. Whether an Averrement may be admitted against a Sheriffs Re∣turn?

Resp. There is a difference between Acts ministerial, and Acts judicial, for against Acts, which a Sheriff doth as ministerial, an Averrement may be, but not against that, which is done ju∣dicially, and by one as judge.* 1.12 vide 3. H. 7.15. a. 7. H. 7.4. ab. 10. H. 7.28. a. Yelvertons Reports Arundel ver. Arundel.

Quaere 13. Whether a prisoner for debt, making an escape, can be taken again upon fresh suit?

Resp. Although a prisoner in execu∣tion escape out of view, yet if fresh suite be made, and he be taken again in recenti in secutione, he shall be in execu∣tion, otherwise at the turning of a corner, or by entring into an House, or other Means, the prisoner may be out of view, and although he fly into another County,* 1.13 yet because the escape was of his owne wrong, whereof he may not take advantage, the Sheriff upon fresh suite may take him there, and he shall be in execution.

Quaere 14. Whether a Sheriff upon a voluntary escape, can retake his pri∣soner?

* 1.14Resp. If the Sheriff, or Bayliff vo∣luntarily lets a Prisoner at large, he cannot retake him, as if a Sheriff assent, that one, who is in execution, and under their Custody, may go out of the Goal for a time, and then to re∣turn, yet although he return at the time, it is an escape.

Quaere 15. Whether there may be an escape, altho the party alwayes con∣tinues in prison?

Resp. If a man be in prison upon two executions, at the suit of two several persons;* 1.15 and then the old Sheriff de∣livers over this prison to the new Sheriff by indenture, according to the usual course, and in the said indenture maketh no mention of one of the said executions, this omission shall be said an escape in Law instantly, for which the old Sheriff shall answer, although the execution was matter of Record, whereof the new Sheriff might have taken notice, so that you see, a man may be said to escape, notwithstanding he alwayes continues in prison.

Quaere 16. Whether the escape of one in execution be cause of discharge of the other Debtour?

Resp. Where two are bound joyntly, and severally in a bond, and the obli∣gee recovers against one of the obli∣gors,* 1.16 and has him in execution upon a Capias ad satisfac. and then he escapes with the Sheriffs consent, in this case, altho he escaped by the voluntary per∣mission of the Sheriff, yet that shall not deprive the obligee of his remedy against the other obligor, for an exe∣cution against one is no bar, but that the obligee may sue the other obligor: Execution without satisfaction being in Law, not any bar, vide Co. lib. 5. Blomfields case. Cro. 1. part. Blofields case. Cro. 2. part. Pendavis ver. Kenshem 532.

Qaerre 17. Whether the sale of goods upon a fieri facias by a Sheriff,* 1.17 after he is discharged of his Office, be good?

Resp. A Sheriff upon a fieri facias seised goods in his hands to the value of the debt, and paid part of the debt; & the goods not being sold, nor the writ returned, the Sheriff was discharged of

his Office, and afterwards sold the Residue of the goods, without any writ of Venditioni exponas; and whether this sale were good, or not, was the Question; and resolved, that it was good, for the writ of fieri facias gave authority to him, to sell, without any other writ; and the sale by him after is good, although he were discharged of his office.

Quaere 18. A Term sold by a Sheriff and after the Judgment reversed, whe∣ther the party shall be restored to the Term, or the money.

* 1.18R. If a Sheriff sell a Term upon a fieri fac. and Judgment is reversed, the sale shall stand, and the party shall be restored only to the money, and not to the Term.

Quaere 19. Whether the Sheriff can be restrained by the King in any part of his Office?

* 1.19R. Though the King may determine the office ad bene placitum, yet he cannot determine this in part, as for one Town, or Hundred, nor abridge him of any Incident to his Office, for the Office is entire, and ought to con∣tinue so, without any fraction, or∣diminution,

without it be by Parliament.

Quaere 20. Whether the Sheriff can abridge any part of his Under Sheriffs power, in executing of process?

R. If a Sheriff will make an Under Sheriff provided,* 1.20 that he shall not serve executions above 20. pound without his speciall warrant, this proviso will be void, for though he may choose, not to make an Under Sheriff at all, or may make him at his will, and so remove him wholly, yet he cannot leave an Under Sheriff, and yet abridge his power, no more then the King may in case of the Sheriff himself.

Quaere 21. Whether the Sheriffs Office be determined by the descent of a Barony?

Resp. Sir Lewis Mordant, being Sheriff of the Counties of Bucks, and Bedford,* 1.21 the Lord Mordant his father dyed, tempore parliamenti, it was held by all the Justices, the Atturney, and the So∣licitor of the Queen, that his office by this matter, is not determined, although he be now a Baron of the Parliament, and that he yet remaineth Sheriff, ad voluntatem Reginae.

Hitherto touching Sheriffs in general

throughout the Realm, I proceed to speak more minutely of the Sheriffs of London; And there are these things con∣cerning them, that deserve our special notice, scil. Their Antiquity, Election, Tenure of their office, Fee-farme paid by them, their Officers, Direction of writs to them; and their return of writs.

1. Their Antiquity.

* 1.22IN the Book of the Abbey of Ramsey, to a Conveyance made in the Court of the Hustings of London, of a certain house in Walbrock within the City, between Wilcnothun de Wallroc & Re∣naldum Abbatem de Ramsey, the witnesses were (amongst others) Willielmus de Einsford Vice-Comes de London,* 1.23 & Jo∣hannes sub Vice-Comes ejus, & Gervasius Clericus ejus.

More might be said of their Anti∣quity, but it is clear, that so long as this City hath been a County of it self, so long, there hath been Sheriffs, for it cannot be a County without Sheriffs.

2. Their Election.

The Sheriffs of London, of old time were chosen out of the Com∣monalty, Commoners,* 1.24 and oftentimes never came to be Aldermen, as many Aldermen were never Sheriffs, and yet advanced to be Mayor, but of late (by occasion) the Sheriffs have been made Aldermen, before or presently after their Election.

Nicholas Faringdon (sayes Stow) was never Sheriff yet four times Mayor of this City, and so of other, which repro∣veth a By-word, such a one will be Mayor, or he be sheriff, &c.

3 The Tenure of their Office.

The Lord Mayor,* 1.25 and Citizens of London have the shrievalty of London ••n see, and the Sheriffs of London are Guardians, under them, and remo∣••eable from year to year.

4. The Fee-Farme paid by the Citizens.

King John granted the Sheriffwicke of London,* 1.26 and Middlesex to the Citi∣zens of London, as King H. I. before had done, for the summe of 300. pound yearly, which also is yet paid by the City into the Exchequer, until this day.

5. Their Officers.

The Sheriffs of London, in the year 1471.* 1.27 were appointed each of them to have sixteen Sergeants, every Sergeant, have his Yeoman. And 6. Clerks viz. A secondary, a Clerk of the Papers, and four other Clerks, besides the Under-sheriffs Clerks, their Stewards, Butlers, Porters, and other in House∣hold many.

6. The Direction of Writs to them.

Sciendum est (sayes the book intitled Nat. Brevium) quod quodlibet breve, quod tangit liberum tenementum in London debet dirigi Majori, & vic. London. Sed omnia alia brevia, quae sunt ad Com∣munem legem in eadem Civitate debent dirigi vic. tantummodo. Every writ, that touches Free-hold in London, ought to be directed to the Lord Mayor, and Sheriffs of London, but all other writs, which are ad Communem legem, in the same City, ought to be directed to the Sheriffs only.

One atteinted of Felony at New-gate, for Felony committed in Middlesex;* 1.28 the Sheriff of London cannot deteine him in execution upon process, unless the di∣rection be to the Sheriff of Mid∣dlesex.

7. Their Return of Writs.

In London every of the Sheriffs may arrest a man;* 1.29 yet the Return shall be

made in the name of both the Sheriffs.

The Court of Common pleas, was of opinion that if one Sheriff of London make his return without his fellow,* 1.30 that this would not be holpen, by the Statute of Je••ffayles, as being no return at all; or a return without the Sheriffs name subscribed, because the Court knows that one Sheriff there, is two persons.

Debt. The process upon the Original were directed to the two Sheriffs of London,* 1.31 the writ was returned by two, the one of them was Sheriff, the other, not: And it was pray'd, that it might be amended; for it is apparent to the Court, that it was the default of the Clerk, in writing the names, and the return by one Sheriff alone had been good, and the Addition of a strang name thereto shall not make it ill, and afterwards by advice of all the Justices, it was amended. Hitherto of the Sheriffs of London.

Notes

• * 1.1

  Co. Litt. 168. a.
• * 1.2

  Quere 2.
• * 1.3

  Co. 2. Inst. fol. 174. & 175. & 558. & 559.
• * 1.4

  14. E. 3 c. 7.23. H. 6. c. 8.12. R. 2 c. 3.
• * 1.5

  Cro. 3. part. Terme Mich. 16. Car. Regis in Banco Regis
• * 1.6

  Co. Lib. 5. Frosts case f. 89.
• * 1.7

  Co. Lib. 9. Mackaleyes Case Lib. 6. Count of Rut∣lands Case. Cro. 2. part. Hodges vers. Markes.
• * 1.8

  Cro. 2. part. Waite vers. Hundred of Stoke 496.
• * 1.9

  Cro. 2. part. Mackaleyes case.
• * 1.10

  Cro. ••. part, Harlestons Case
• * 1.11

  Cro 2. part. May v. Proby, and Lum Sheriffs of Middlesex.
• * 1.12

  Cro. ••. part. Arundel ver. Arundel.
• * 1.13

  Co. lib. 31 Ridgewayes. Case.
• * 1.14

  Cro. 2. part. Whiting ver. Reynel. Co. lib. 3. ••ogt••ns Case. lib 3. Ridgewayes Case.
• * 1.15

  Cro. 1. part. Westly ve Skin∣ner Co. lib. 3. Westbreys Case.
• * 1.16

  Cro. 3. f. 75. White Acres ver. Hamkin∣son.
• * 1.17

  Cro. 2. part. Ayre ver. Aden Yelverton Reports Aire ver. Aden.
• * 1.18

  Co. lib. 8. Man∣nings Case: Co. 1. Part. Ayre ver Wood∣fine.
• * 1.19

  Co. lib. 4. Mittons Case.
• * 1.20

  Hobarts Re∣ports Norton ver. summe f. 13.
• * 1.21

  Cro. 1. part. Sir Lewis Mordants Case 12. & 13.
• * 1.22

  tempore H. 1.
• * 1.23

  C. 4. Inst. 248.
• * 1.24

  Stow.
• * 1.25

  Co. 2. Inst. 32.11. Eliz. Dyer f. 278.
• * 1.26

  Stow.
• * 1.27

  Stow.
• * 1.28

  Moores Reports 178. an. 317.
• * 1.29

  30. H. 6.43:
• * 1.30

  Hobarts Rep. Lamb. vers. Wiseman f. 70.
• * 1.31

  Cro. 1. part. Allen v. Sir Rob. Salisbury.