с Dalt. Sh. Appen- was accordingly so, for at the Common Law before this Statute, dix, cap. 2. § 4. when a Man was condemned in any Sum, and in Execution for it, the Sheriffs or other Officers would let him at large upon Condition to save them harmless; as if he had been condemned in £100, the Sheriff or other Officer would take an Obligation of £300, and suffer him to go at large, and then the Party Plaintiff had no other Remedy but only to sue the Sheriff or other Officer upon the Escape, and he should recover no more than his first Debt or very small Damages, and perhaps it would be one or two Years before the Plaintiff could recover it against the Sheriff or Gaoler, and in the mean time the Prisoner is at large, and will encrease the Sum in which he was condemned more than the Sheriff or other Officer should render in Damages. And sometimes the Sheriff or other Officer would for such Favour gain a Piece of Land, sometimes he would compound with the Prisoner by this Means to get his Son and Heir married to his own Daughter, and he never was without great Reward for such Favour. And so Sheriffs and other Officers by such Crafts and Devices were enriched, and were sure to be kept without Damage by such Obligations for the Sum in which they should be condemned for the Escape, and thus their Bribery had safe Conduct. For this Cause the Statute was made to avoid such Obligations, so that if Sheriffs or other Officers will let Prisoners at large, they must do it at their Peril, for by this Statute their fafe Conduct, that is to say, the Obligations to save them harmless, is cut off and destroyed. And therefore seeing the Mischief was so great, it cannot be taken but that it was the Intent of the Makers of the Statute to cure it, and this was one of their principal Views in this Statute, and was a Thing that had the greatest Need to be remedied. And, Sir, I don't see to what Intent this Exception' was put or mentioned in the Statute, if it was not to make void Obligations taken for letting them go at large, who were not bailable. For to restrain them from Bail was in vain, for the Common Law had done that before, and then the Exception was not put in the Statute for such frivolous Purpose, but upon great Consideration, and that was, to make Obligations taken for letting them to bail who were not bailable, utterly void, by the Relation of this Word (aforesaid) to the said Clause. And, Sir, in the said Case of Debt in 37 H. 6. brought by a Sheriff upon a single Obligation made by one, who was in his Custody for Suspicion of Felony, and which is there holden void, it is put obiter by Moile, that if the Sheriff had let one to mainprize, who is excepted in the said Statute as not bailable, and had taken a simple Obligation, it should be void, quod alii Justiciarii ibi concesserunt. Which proves that they being nearer to the Statute than we are took it that an Obligation taken for one not bailable, and made in other Form than the Statute limits, should be void, and that I believe. And so, as it seems to me, the Words of the Statute, and the Intent of the Statute, make the said Word (aforesaid) to have Relation to the second Branch, and consequently to make the Obligation (if it is taken in other Form than the Statute limits) to be utterly void. And further, if the Obligation is not void for this Cause, it seems to me that (if it is taken in other Form than the * Statute limits) these Words, viz. colore officii, will make it void, M. 37 H. 6. 1. b. Fitz. Obligation, 4. Bro. 37. 10 Co. 100. b. Ante 64. [*68] f for a с Co. Litt. 368. b. for it is to be considered that Thomas Maningham was in Execution, and no Man can be in Execution but under some Officer, and here he was in Execution under the Custody of the Plaintiff, not as Lewis Dive, but as Sheriff, for the Writ to take Thomas Maningham was directed to him as Sheriff, and so as Officer he had the Custody of him, then when he took the Obligation, he took it as Officer, but he took it unduly, for he was not bailable, but yet he took it as Sheriff, ergo he took it colore officii sui; for this Word colore officii sui is always taken in malam partem, and a 2 Inst. 206. signifies an Act badly done under the Countenance of an Office, Ante 64. and it bears a dissembling Visage of Duty, and is properly called Extortion. As if an Officer will take more for his Fees than he ought, this is done colore officii sui, but yet it is not Part of his Office, and it is called Extortion, which is no other than Rob- 10 Co. 100.b. bery, but it is more odious than Robbery, for Robbery is apparent, and always hath the Countenance of Vice, but Extortion, being equally as great a Vice as Robbery, carries the Mask of Virtue, and is more difficult to be tried or discerned, and consequently more odious than Robbery. Wherefore here inasmuch as the Obligation was made for the Deliverance of Thomas Maningham, who was in the Custody of the Plaintiff, as Officer, it cannot be denied but that he took the Obligation for his Deliverance colore officii, although it was not virtute officii sui. And as to what was said at the Bar, that if a Sheriff or other Officer takes an Obligation of a Prisoner for his Meat and Drink, that this is colore officii, and yet out of the Statute, Sir, I utterly deny this, for the Obligation is void. For if one be in Execution he ought to live of his own, and neither the Plaintiff nor the Sheriff is bound to give him Meat or Drink, no more than if one distrains Cattle, and puts them in a Pound, for there the Owner of the Cattle ought to give them Meat, and not he that distrained them, no more is the Party or the Sheriff, who has one in Execution, bound to give Meat to the Prisoner, but he ought to live of his own Goods, although he be in for Felony, until he be attainted, and this by the Course of the Common Law. 8 For before Attainder the Goods are his, and in his Hands, and the Common Law in this Point is confirmed by a Statute; and if he has no Goods, he shall live of the Charity of others, and if others will give him nothing, let him die in the Name of God, if he will, and impute the Cause of it to his own Fault, for his Presumption and ill Behaviour brought him to that Imprisonment. Inasmuch then as the Sheriffs or other Officers are not bound to find their Prisoners Meat, an Obligation taken for Meat is void, for it is colore officu, and the Sheriff cannot take an Obligation of his Prisoner but in a small Number of Cases. For his Ability in this Point is straitned by this Statute, and so of all other Officers except the Warden of the Fleet, and of the King's Palace at Westminster, who are excepted by the Statute. And therefore in 7 Ed. 4. one was in Forfeiture 10. M. 43 Ed. 3. 24. pl. 1. per Finchden. Fitz. Trespass 7. Bar. 196. Forfeiture 7. Officer 3. Reseiser 3. 44 Ass. pl. 14. Bro. Forfeit. 44. St. Pl. Cor. 192. b. 193. Palton 235. a. b. 3 Inst. 228, 229. Dalt. Just. cap. 163. 1 Freem. 327. Kitch. 59. Stat. 1 R. 3. cap. 3. 1 See Hetl. 146. h e i 10 Co. 100. b. Dalt. Sh. 524. 12 Abr. tit. Condition U. pl. 10. S. P. 1 Mod. 152. B. pl. 1. 12 Mod. 683. per Holt, C. J. and the Opinion Mod. 683. Vin. e2 Rol. Abr. 32. in 9 Co. 87. b. to the contrary is there denied to be Law. Distress 25. 1 f Dr. & Stud. I. 1. cap. 5. 1. 2. c. 27. P. 9 Ed. 4. 2. pl. 7 per Choke. Bro. Bulst. 55. B. N. C. $214. Co. Litt. 47. b. 2 Inst. 106. Finch 136, 137. Rol. Abr. 673. pl. 5. Kitch. 290. 136. b. Britton 4. b. T. 7 H. 4. fo. ult. pl. 8. Fitz. Corone. 83. Bro. Bro. Corone. 9. 1 Finch 110. 2 * P. 7 Ed. 4, 5. pl. 15. Fitz. Debt 80. Bro. non est factum 14. 10 Co. 100. b. 1 Bracton fo. 123. Custody Custody of the Sheriff by a Capias upon an Indictment of Trespass, and the Sheriff let him to Mainprize, and he made an Obligation to another upon Condition to keep his Day, &c. and this he did for the Surety of the Sheriff, and there it is held that the Obligation was void, because the last Branch of the Statute prohibits any Sheriff from taking an Obligation for any Cause aforesaid, or by Colour of their Office, but only to themselves, and there inasmuch as it was taken to another, it was void: And also there the Court held, that if the Obligation has not the Conditions expressed in the Statute, it is not the Deed of the Party: Ex quo sequitur, that he ought to conclude non est factum, and hereto the Opinion there tends, which confirms my Opinion that the Conclusion ought to be as I have said before. And so the Capacity of Sheriffs or other Officers is abridged and straitned in this Point. And thus is my Mind perceived in these Matters; for I apprehend that this Word (aforesaid) has Relation to the second Branch, and to make the Obligation here void, and if it should not, yet these Words colore officii will make it void, if so be the Obligation is taken in other Form than the Statute limits; to which Point I am now to argue. And, as it seems to me, it is taken in other Form than the Statute limits, for the Statute contains that it shall be in the Name of their Offices, and upon Condition to appear, and here it is not so, for he has no Day in Court, wherefore it is void; and the last Part of the Condition of the Obligation is, if he shall be at the Command of the Sheriff as a true Prisoner, and then the Sheriff might command him not to escape, and he might go to Bed and sleep there safely, but it never was the Intent of the Statute to give him such Ease, and such Condition was never intended by the Statute; and if any will argue that the last Part of the Condition is according to the Statute, yet the first Part is not so, for the first Part is, if Thomas Maningham keep without Damage the said Sheriff against our Lord the King, and one Thomas Palley, &c. and it does not say for what he should keep him without Damage, so that it is general, and shall be taken most strongly against him, and that is, for all Things, as for Felonies, for Treasons, for the Sheriff's Account in the Exchequer, and for all other Charges; nor does it say how long he shall keep him without Damage, and then it shall be taken for ever. And so it shall be construed, for every Thing, and for ever, et sic per omnia secula seculorum. And, Sir, I apprehend that if the Obligation had been conditioned acm See Ante 64, (d) cording to the Statute, and had had another Thing also in the 1S. P. Perk. $726. and the Books there cited. m same Condition, that the Obligation, by reason of this Condition, would be utterly void. As a Formedon and Action of Wast are given by Statute, there if a Man will add other Words in the Writ, the whole is void. "And if the King license one to alien the third Part of his Land, and he aliens the whole, the License is totally void. And I was of Opinion in the first Statute of Devises, which gives Authority to devise two Parts, that if he had devised the whole, the whole should be void. And so if another Thing is added to a Thing given by Statute, it shall make all void. So here, although the last Part of the Condition was according to the Statute, yet the first Part was not, and that shall make the whole Obligation void. And, Sir, the Óbligation varies from the Form of of the Statute in another Point, for in the first Branch it is commanded to the Sheriff to let the Persons therein mentioned to mainprize upon reasonable Surety of sufficient Persons, having sufficient within the Counties, where such Persons are so let to Bail or Mainprize; so that the Statute is of sufficient Persons, ut supra, and is in the plural Number, in which Case there ought to be two Sureties at least, and here there is but one Surety, viz. John Maningham only, and this is not according to the Words nor Intent of the Statute, for the more and the more able the Sureties are, the sooner will they cause him to appear who is let to Mainprize, and so Justice will be more speedily done; and therefore the plural Number of Sureties was well considered and put into the Statute, but here there is but one Surety, viz. the Defendant only: And the letting them to Bail, who are mentioned in the second Clause, ought to be upon like Sureties, and in the same Manner as is contained in the first Branch; and therefore seeing there is but one Surety here, it is in other Manner than is contained in the Statute. And then if the Obligation is taken in other Form than is limited in the Statute, the Statute saith it shall be void. But the Defendant has lost the Advantage of the Obligation in its Variance from the Order of the Statute in this Point, by his special Conclusion and Reliance upon it that it was not made upon such Condition as is limited in the Statute, as I have shewn before; yet because the Condition varies from the Statute he shall have Benefit by the Office of the Judge, notwithstanding his bad Conclusion to the Action, as I have said before, and so for these Causes the Plaintiff shall be barred. [ * 69 ] See the con trary adjudged 10 Co. 100.b. 101 Drury's Case cited a. Cro. Eliz. 624. Per Popham. ibid. 652. pl. 31. ibid. 808. pl. 11. ibid. 852. pl. 9. Cro. Jac. 256. Cro. 23. 1 Mod. 223, 3 Mod. 178. Car. 446. Hardr. Note, (Reader) that as to what was moved for the Plaintiff, Nota bene by the that the Obligation here should be out of the Danger of the Reporter. Statute, because it is not made by him who was imprisoned, but by the Defendant who was at large, this seems no Matter for two Causes. The first is, because the first Branch requires, that the Surety shall be of sufficient Persons, having sufficient within the Counties where, &c. And so the Words and also the Intent of the Statute, by these Words, appears to extend to those Suerties at large taken for them in Prison, so that they have sufficient within the County. The second Cause is, for that the third Branch ordains, that no Sheriff shall take any Obligation for any Cause aforesaid, or by Colour of their Office, but only to themselves, of any Person, nor by any Person that is in their Custody, &c. so that these Words, viz. (of any Person) are general, and extend to all Persons, viz. at large, or not, &c. or at least they extend to all that are at large, and these Words (by any Person that is in their Custody) extend to all Prisoners only, and these Words, (which are in their Custody) are only to be referred to the Person last named, and not to these Words (of any Person) first named; and then these Words will also make an Obligation taken of him at large to be void, as well as if it was taken of the Prisoner himself. And perhaps for these Causes it was held so clear, that it was not answered by the other Side, nor by the Lord Mountague. At which Day here comes as well the aforesaid Lewis, as the The rest of the aforesaid Record. Judgment. Of a Demand or at a Place out of which it issues. $. C. Dyer 68. pl. 23. aforesaid John Maningham by their Attornies aforesaid, and thereupon the Premisses being seen and by the Justices here more fully understood, it seems to the same Justices here, that the Plea of the aforesaid John above in Bar pleaded is good and sufficient in Law to preclude the aforesaid Lewis from having his Action aforesaid against the aforesaid John Maningham. Therefore it is considered, that the aforesaid Lewis take nothing by his Writ aforesaid, but be in Mercy for his false Claim therein. And that the aforesaid John go thereupon without Day, &c. Enquire the Names of the Pledges, &c. And also it is considered, that the aforesaid John recover against the aforesaid Lewis 24 Shillings adjudged to the same John by the Discretion of the Justices of the Lord the King here, according to the Form of the Statute therein made and provided, for the Costs and Expences of the aforesaid John by reason of the Premisses, &c. A Report of a Judgment given in the Common Bench, by deliberate Advice of all the Justices of the same Bench, in Hillary Term, in the 4th and 5th Years of the Reign of King Edward the Sixth, between Lawrence Kidwelly, Plaintiff, and William Brand, Defendant, in an Action of Trespass brought by the said Plaintiff against the said Defendant. IT appears amongst the Records in the Term of St. Hillary in the 4th and 5th Years of the Reign of King Edward the Sixth, Rot. 355. that Lawrence Kidwelly brought an Action of Trespass against William Brand for breaking his Close at Lomer, in the County of Southampton, &c. and the Defendant pleaded, not guilty, &c. And it was found by Verdict before Justices of Nis prius, that John Salcot, Abbot of the late Monastery of Hyde, near Winchester, in the said County of Southampton, was seized of and in the Site of the Manor of Lomer, with a Grange situate upon the said Site, and of and in 100 Acres of Land, 40 Acres of Pasture, and 40 Acres of Meadow with the Appurtenances in Lomer abovewritten, (whereof the Place where the Trespass is supposed to be done is, and at the said Time of the Trespass supposed to be done was, Parcel) in his Demesne as of Fee, in Right of the said Monastery, and being so seized, the same Abbot and Convent, by their Indenture made between the said Abbot and Convent of the one Part, and John Cropp, Thomasin his Wife, and John their Son of the other Part, (one Part whereof sealed with the Common Seal of the said Abbot and Convent, bearing Date the 21st Day of September, in the 26th Year of the Reign of King Henry the Eighth, was shewn in Evidence). leased to the said John Cropp, and Thomasin his Wife, and John their Son, the said Site and others the Premisses, to have ard to hold to them and to their Assigns, from the Feast of St. Michael next ensuing the |