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in the Register for this particular purpose.1 The Sheriff, however, did in fact take the Inquest virtute officii, as stated in the report itself. He might lawfully, and, indeed, ought to have done this in the case of a bridge within his bailiwick and not within a liberty having Court Leet, if the bridge was left out of repair to the common annoyance.2 Neither the word "Turn" nor the manner in which the Inquest was taken is mentioned in the report, but as the matter was one falling within the jurisdiction of the Turn (if in the particular Sheriff's bailiwick at all, and not in a liberty), the omission was, for the lawyers of the time, immaterial.
Writ of Of the subsequent proceedings in the King's Bench
Errorthere- fl^g two records.3 This is not an instance in which on returnable in the one is vacated by the other (for in that case the words
Bench "vaca^ quia aubi" would appear upon the roll), but it is an instance of one record being supplementary to the other, the later referring back to the earlier. From the two it appears that the Bishop of Coventry and Lichfield sued a writ of Error on the following grounds. He 'complained that he had been amerced and distrained, without having been previously called or warned, because of certain alleged presentments in the Turn to the effect that he had not cleansed and repaired a certain ditch, and had not repaired a certain bridge as he ought.
1 Beg. Brev. Orig. 153 b.-] 54, and see Dalt., Sheriffs, 399.
1 See Dalt., Sher., 392, 394, 396. Bnt this was only when the nuisance was public or common. The question "whether a particular case "is to be classed as a public or "private nuisance depends, or "seems to depend, on the question "whether it be indictable or not." Bigelow, Leading Cases on the Lair of Torts, 465. For a clear
distinction between public and private nuisance see also Pollock, Law of Torts, 324-326. One of the must familiar illustrations of a common or public nuisance is the non-repair of a public highway. See Mr. Justice Stephen's Digest of the Criminal Law, Art. 176 (4), p. 109.
3 Placita coram Bege, Hilary 14 Edward III., Bex, R°. 18 d., and Trinity, 11 Edward III., Bex, R". 1.
The Sheriff's return to the writ was briefly that it Tno Sheriff had been presented in the Turn that the lord of Han- manded worth ought to repair the bridge at Eldeforth, which f^"^,* was broken, and that he was amerced one half-mark, turn, as the Nothing was said about the ditch, and it was not stated ^ulJ^nt . who was the lord of Hanworth.
The return was held to be insufficient, and another writ issued to the Sheriff, requiring him to send the record and process of the presentments more fully, and to cause four men from each of the four townships nearest to the bridge to come and inform the Court of King's Bench more fully as to the facts.
When the record was returned in due form it appeared that no mention had been made of the ditch. The presentment was to the effect that the bridge was out of repair, that the lord of Hanworth ought to repair it, and that John Dayrel was the lord.
The Bishop now said that he was himself lord of Han- Errors asworth, that there was no bridge at Eldeforth for common tojurLdicuse, but only one for the miller and those who wished tion: no to grind their corn at the mill, that each end of tho paTM^" bridge was within a liberty, that the lord of one of bridge the liberties had a Court Leet, that the lords of Han- liberties, worth were not bound to repair the bridge, and that it was not within the jurisdiction of the Sheriff.
The men from the four townships nearest to the Men of bridge appear to have made some statement at this n^°theP* stage. They came in virtue of process which is in a bridge give
. . ., 11 xi i information
form similar to that of jury-process, but they were not ;n coUrt. a jury to try any particular issue. The information, however, which they could give, was had, and their functions must have been very nearly akin to those of modern witnesses, though there is nothing to show what they said.
There is a passage in the report which appears to identify these men from the four townships with the men who presented in the Turn. This, however, suggests a difficulty, because it is plain by the enumeration in the record that the presenters were twelve in number, whereas the four men from each of four townships must have been sixteen. It is, nevertheless, probable that the sixteen included the twelve presenters. If so, the report and the record can be brought into agreement. In that case the sixteen men supported the Sheriff, and, perhaps, gave testimony in support of the presentment.
Issue on After this the Sheriff maintained the correctness of tUm? of*" presentment, and said that the head of the bridge fact: jury- towards Hanworth was in gildable land in the Hundred process. Q^ gp^horne, and that there was a highway and common passage. The Bishop repeated that the bridge was, on the side of Hanworth, within the liberty of the honour of Wallingford, and that the Sheriff had no jurisdiction.
Here issue was joined, and, the Sheriff being concerned, jury-process issued to the Coroners. According to one of the records the jury was to consist of twentyfour, who were to be as well knights as others. The verdict was in detail, and was to the effect that the bridge was, at both heads, without the jurisdiction of the Sheriff.
Present- presentment was therefore quashed, and the
quashed Sheriff amerced, but the Bishop did not recover damages.
verdict. The whole course of this case appears, at first sight, Alternative to be somewhat at variance with the accepted doctrines ag^nst the as to the relation of the Sheriff's Turn to the Leet of a sheriff by liberty. It has been supposed that, if there were a KopUvin. presentment and an amercement in the Turn, followed by a distress, for a matter which should have been presented in the Leet of the liberty, the remedy was by an action of Replevin, and that damages could be recovered.1 This opinion is perhaps founded, in the
main, on a case which afose a few years later, and which in many respects, though not in all, resembles that of the bridge at Hanworth.
An Abbot1 brought an action of Replevin against a Sheriff's bailiff who avowed a distress for an amercement in the Sheriff's Turn for non-repair of a causey, which, as presented in the Turn, the Abbot was bound to repair. The Abbot pleaded that the causey was within a manor which the Earl of Arundel held as in right of his wife, and that the non-repair of the causey was presentable in the Court Leet of that manor, and not in the Sheriff's Turn. There was much argument as to whether the Sheriff had not jurisdiction, notwithstanding the liberty, in a case where there was a common way for all passengers, which was admitted to be out of repair, and where redress "sounded "in the profit of the people." It was held that the Sheriff could not do anything of his own head (" de m "teste demesne"), and without special warrant. If, however, there were any default in the liberty, any one could sue out a writ to the Sheriff to enquire who was liable, and then he might by process compel the person liable to repair the causey, even though within a liberty.
It was also argued that the distress was in the nature of the execution of a judgment, that, if the judgment was wrong, the proper mode of proceeding was by writ of Error returnable in the King's Bench, that it was for the lord of the liberty so to proceed, and that in this way it could be tried whether there was any such liberty or not. It was, however, maintained that the question of the existence of a liberty could be tried in
1 Y. B., 29 E. 3., p. 21. This report (of Easter Term), referring back, as it does, to pleadings earlier in date by two terms, is obviously
a longer and better report of the case (in which a Prior is represented as plaintift) in Y. B., Michaelmas, 28 E. 3., p. 19 (No. 6).
no way but by a Quo warranto. In the end, as it was not denied that the causey was within the seignory or lordship of the Earl of Arundel, who had a Leet, judgment was given for the plaintiff, with damages.
The two A close comparison of this case with that relating proceeding, to tne bridge of Hanworth will show that there was though not any real diversity of principle. The features comeffijctfdo mon to the two were that there had been a presentnot involve ment in the Turn in respect of a matter not there
sity of presentable, and that this had been followed by amerceprinciple. ment and distress. In one case the person aggrieved proceeded by action of Replevin, in the other by writ of Error, and both were successful. This, however, shows no more than that there were two remedies for the wrong. In one case it is laid down that if the Leet of a liberty omitted to compel the person liable to repair, the Sheriff might compel him, the liberty notwithstanding, upon receipt of a writ to enquire and distrain. In the report of the other it is stated that the Sheriff had such a writ directed to him, and was nevertheless held to have acted wrongly. But because, perhaps, the writ issued too late, or for some other reason, the Sheriff did not act in virtue of it, but took a presentment in the ordinary course in his Turn. He could not therefore have any advantage from it. In one case a writ of Error is accepted as a correct mode of proceeding; in the other it is said that the existence of a liberty cannot be tried by it. But where the writ of Error was effectual the existence of a liberty was not in question; the point in dispute was whether particular spots were within certain liberties or not, the existence of the liberties being admitted on both sides. Lastly, damages were recovered in one case, but not in the other. This, however, was only an incident of the mode of proceeding. Damages were ordinarily recoverable in an action of Replevin; but the sole object of a writ of Error was to undo something that had pre