The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

Pasch. 8 Car. Metcalfe versus Hodgson.

* 1.1MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York, and count, That wheras time out of memory, &c. there hath been a Court of Record hol∣den before the Sheriffs of the said City, upon the Bridge called Ous∣bridge,* 1.2 and that in this Court, every one having cause of action arising within the said City, had used to commence any action for debt there, and that the Defendants being arrested by their bodies, the Sheriffs had used to take Bayle of them, and to let them to Bayle, finding suffi∣cient sureties, and that the Sheriffs are also, and time out of memory, have been Keepers of the Gaol there. And wheras the Plaintiff had brought an action against one Smith, and recovered, the now Defen∣dants (being Sheriffs) had taken insufficient Bail of him, &c. And upon Not guilty pleaded, it was tryed before the Lord chief Baron at York, for the Bail are supposed to be taken at Wakefield, but that was not alledged, for any thing which appears, to be out of their Iuris∣diction: And the Iury contrary to the direction of the Lord chief Ba∣ron gave Verdict for the Plaintiff.

And after many motions in Arrest and praying of Iudgment, it was resolved, that this act was done by them as Iudges, and for this Iudiciall Act no action lay: And though that the Bail by the event ap∣pear to be insufficient, yet there is no remedy by action upon the case, it being without fraud or corruption, and not for reward.

And this Case differs nothing from the ordinary cases of all insuffi∣cient Bailes, taken by any of the Kings-Bench, Common Bench, or Ex∣chequer: And that they having two Authorities in una persona, it shall be taken to be done by that Authority by which they have power to vail, and that is as Iudges of the Court, and not as Gaolers, for by this they have no power to Bail any, and in this capacity they are only sub∣ject to an escape, vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges, vide 12 E: 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record.

Quaerens nil capiat per breve.

Notes

• * 1.1

  Case.
• * 1.2

  An action of the case lies not against a Sheriff, for taking of in∣sufficient Bail being Iudges.