Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Empson and Bathrust before.

THe case of Empson against Bathrust was moved again by Harris, and he praied judgement for the Plantiff, and it had been said, that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation, for it is only where a sheriff takes a bond of any person which is in his ward, and yet he said, he never found in any book the Sheriff might exact any fee of any person, for he is an officer of the King, but 21. H. 7. he may pre∣scribe to have a bare fee, but the Statute of 23. H. 6. appoints little fees in some cases. Secondly, he argued in this case, that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff; and then if the Sheriff give the partie day till another day, it is good reason he shall have a bond for that for his security. Thirdly, he held that the Sheriff may take this bond of the party after the extent, and before the liberate by the Statute of the 29. Eliz. for otherwise per∣chance when the Sheriff had made the extent, perchance the Conusee will not sue out the liberate, and so the Sheriff shall be defeated of all his labour and travel taken in the extent: and in the last place he said, that in case the summe exceeded a 100. l. the Sheriff shall have 6. d. in the pound for that which exceeds, and 12. d. for the first hundred pound: but it was resolved by Hobert, Winch, and Hutton, that judgement shall be given against the Plantiff, and first they agreed this obli∣gation not to be within 23. H. 6. for the partie was not in the ward of the Sheriff, and so was resolved in Bewfages case. Secondly, it was agreed by the said 3. Iustices, that the Sheriff may not take his salary appointed by the Statute, till a compleat execution, viz. till the liberate, for the words of the Statute are in the

negative, and doth not establish the fees, but only tolerates them, and Hobert said, if the Sheriff made an extent, and before the liberate a new Sheriff is chosen, then in this case the new Sheriff shall have the fees appointed by the Statute, and not the antient Sheriff: and by Hobert, if the Conusee sue an extent, and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees, the She∣riff shall have his remedy by his action upon the case; and by Hutton, if the Sheriff return upon the extent, that he is ready to deliver that to the Conusee, this is sufficient to intitle him to his action upon the case, and thirdly, it was holden by Hobert, and by Winch, that the Sheriff shall have but 6. d. in the pound for all, if it exceed 100. l. for so was the intent of the Statute, but Hutton said, that the Common practise is otherwise, and Hobert said, that he did not value that, for he knew well enough that the Sheriff will rather take more then less then their fees, and though it had been said, that if such a Construction shall be made, then the Sheriff shall have as much for executing 100. l. as 200. l. to this he said, the Sheriff ought to take this subject to this casually, for it is the very words of the Statute: and lastly, it was resolved by Hobert and Winch, that the obligation was void by the Common law, and extortion, and a taking by the Colour of his office, see Dive and Manninghams case, and Hobert said, that every bond that is taken for any thing which is malum in se is void by the Common law, and this extortion is malum in se; and so void by the very Common Law, see Ouleys case 19. Eliz. in Dyer; but Hutton doubted whether this bond is void by the Com∣mon Law, because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion: and after judgement was Commanded to be entred for the Defendant in the action, if no other matter be shewed to the contrary before such a day.

In trespas quare vi et armis one such being his servant cepit et adduxit at D. in Essex, the Defendant pleaded that he was a vagrant in the same Countie, and he not having notice that he was servant to another, he retained him; and it was mo∣ved by Finch, if I retain the servant of another man in the same Countie where I and his Mr. inhabit, this is not justifiable, though in veritie I had not notice of that, and this according to the express book of the 19. Ed. 3. 47. Hobert, the book may not be law, for it is a hard matter to make me take notice of every servant, which is retained in the same Countie, and yet perchance if this retainer be upon the Statute of labourers, at the Sessions this is notorious, and I ought to take notice of that at my peril, but it is otherwise of a private retainer; for though it is within the same Countie, yet being a private matter in fact, the Law will not compel me to take notice of that at my peril, otherwise if this be matter of record, 2. H. 4. 64. and Hobert and Winch seemed to agree, and then Finch moved that the Plantiff had charged the Defendant with his servant by cepit et adduxit, and the Defendant excused himself, and never traversed cepit et adduxit, see 11. H. 4. Hutton and Hobert, the receiving and the entertaining of a servant may not be said to be vi et armis.