Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year: and yet it hath been said (1) that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so is the form of the royal writ. (m) Therefore, till a new sheriff be named his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff; (n) but now by statute 1 Ann. st. 1, c. 8, all officers appointed by the *preceding [*343] king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. We may farther observe, that by statute 1 Ric. II, c. 11, no man that has served the office of sheriff for one year, can be compelled to serve the same again within three years after. We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. In his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in its proper place; and he has also a judicial power in divers other civil cases. (0) He is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons,) of coroners, and of verderors; to judge of the qualification of voters (4) and to return such as he shall determine to be duly elected. As the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. (p) He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it; and may bind any one in a recognizance to keep the king's peace. He may, and is bound ex officio to pursue, and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: (q) and this summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, (r) *under pain [ *344 ] of fine and imprisonment. (s) But though the sheriff is thus the principal conservator of the peace in his county, yet by the express directions of the great charter. (t) he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements: should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office: (u) for this would be equally inconsistent; he being in many respects the servant of the justices. In his ministerial capacity the sheriff is bound to execute all process issuing from the king's.courts of justice. (5) In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, (1) 4 Rep. 32. (0) Dalt. c. 4. (m) Dalt. of Sheriffs, 8. (n) Dalt. of Sheriffs, 7. (u) Stat. 1 Mar. st 2. c. 8. (8) Stat. Hen. V, c. 8. (4) This duty no longer devolves upon the sheriff. (5) [By the common law sheriffs are to some purposes considered as officers of the courts, as the constable is to the justices of the peace. ́Salk. 175; 2 Lord. Ray. 1195; Fortes. 129; Tidd. 8 ed. 52. As writs and process are directed to the sheriff, neither he nor his officers are to dispute the authority of the court out of which they issue, but he and his officers are at their peril truly to execute the same, and that according to the command of the said writs, and hereunto they are sworn: Dalt. 104; and he must do the duty of his office and show no favor, nor be guilty of oppression. Dalt. 109. But the sheriff ought to be favored before any private per4 Co. 33.] son he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. As the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs; a word introduced by the princes of the Norman line; in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties. (w) He must seize to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seize and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and inust also collect the king's rents within the bailiwick, if commanded by process from the exchequer. (x) *To execute these various offices, the sheriff has under him many in[*345] ferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500l. (y) (6) (w) Fortesc. de L. L. c. 24. (x) Dalt. c. 9. (y) Stat. 3 Geo. I, c. 15. Although a sheriff is not, in general, to dispute the authority of the court of which he is an officer, yet if the court should assume to act in a case in which it had no jurisdiction, he could not be made liable for refusing to serve the process. Earl v. Camp, 16 Wend. 562; Loomis v. Wheeler, 21 Wis. 271. Indeed, if a sheriff should seize property on a writ issued by a court without jurisdiction of the case, the sheriff could not, under his writ, defend his possession of the property as against replevin by the true owner. Beach v. Botsford, 1 Doug. Mich. 199. But an officer, in an action of trespass, is protected by process which, on its face, apprises him of no defect of authority in the court issuing it. Fox v. Wood, 1 Rawle, 143; Ortman v. Greenman, 4 Mich. 91; Foster v. Pettibone, 20 Barb. 350; Brown v. Mason, 40 Vt. 157; Chase v. Ingalls, 97 Mass. 524. (6) [The sheriff is not bound to make an under-sheriff: Hob. 13, sed vid. 1 and 2 P. and M. c. 12; and the sheriff may remove him when he pleases, and this though he makes him irremovable. Id. The under-sheriff is appointed by deed, which is afterwards filed in the king's remembrancer's office in the exchequer. Hob. 12. By the 27 Eliz. c. 12, the under-sheriff, except of counties in Wales and county Palatine of Chester, must take an oath which is now prescribed by the 3 Geo. I, c. 15. He was formerly required also to take the oaths of allegiance, &c., in the same manner as the high-sheriff, and within the same time; but those are not now required. See For security to the sheriff, the under-sheriff usually gives a bond of indemnity to save the sheriff harmless; to make account in the exchequer, and procure the high-sheriff's discharge, to return juries with the privity of the sheriff, to excute no process of weight without the sheriff's privity, to account to the sheriff and attend him, to be ready to attend the sheriff; for his good behavior in his office, to take or use no extortion, to give attendance at the king's court. Dalt. c. 2, p. 20. To indemnify him from escapes. Hob. 14. But a bond or covenant that the under-sheriff shall not execute process, &c., without the sheriff's consent, is void; for, when the sheriff appoints his under-sheriff, he consequently gives him authority to exercise all the ordinary office of the high-sheriff himself. Hob. 13. The under-sheriff may do all that the sheriff himself can do except that which the sheriff himself ought to do in person, as to execute a writ of waste, redisseisin, partition, dower, &c. : 6 Co. 12; Hob. 13; Dalt. 34; Jenk. 181; for in all cases where the writ commands the sheriff to go in person, there the writ is his commission, from which he cannot deviate. Dalt. 34. The under-sheriff hath not, nor ought to have, any interest in the office itself, neither may he do any thing in his own name: Salk. 96; but only in the name of the high sheriff, who is answerable for him, because the writs are directed to the high-sheriff. If the sheriff dies before his office is expired, his under-sheriff or deputy shall continue in office, and execute the same in the deceased sheriff's name until a new sheriff be sworn, and he shall be answerable, and the security given by the under-sheriff to the deceased sheriff is to continue during the interval. 3 Geo. I, c. 15, s. 8. By 3 Geo. I, c. 15, none shall sell, buy, let or take to farm the office of under-sheriff, &c., or other office belonging to the office of high-sheriff, nor contract for the same for money or other consideration directly or indirectly, &c., on pain of 500l., a moiety to the king and a moiety to him who shall sue, provided the suit be in two years; provided that nothing in that act shall prevent the sheriff, under-sheriff, &c., from taking the just fees and perquisites of his office, or from accounting for them to the sheriff, or giving security to do so, or from giving, taking, or securing a salary or recompense to the under-sheriff, or from the under-sheriff in case of sheriff's death from constituting a deputy. Dalt. 3, 514; Hob. 13; 2 Brownl. 281. If an action is brought for a breach of duty in the office of sheriff, it should be against the high-sheriff, as for an act done by him, and not against the under-sheriff; and if it proceeds from a fault of the under-sheriff or bailiff, that is a matter to be settled between them and the The under-sheriff usually performs all the duties of the office; (7) a very few only excepted, where the personal presence of the high sheriff is necessary. But no under-sheriff shall abide in his office above one year; (2) and if he does, by statute 23 Hen. VI, c. 8, he forfeits 2007., a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office: (a) (8) for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practicing in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs; by reason of which, says Dalton, (b) the undersheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive and, it may well be feared, that many of them do deceive, both the king, the high-sheriff, and the county. Bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. (9) Bailiffs of hundreds are officers appointed over those respective districts by the sheriff's, to collect fines therein; to summon juries; to attend the judges and justices at the assizes, and quarter sessions; and also to execute writs and process in the several hundreds, But, as these are generally plain men, and not thoroughly skillful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons, employed by the sheriffs on account only of their adroitness and dexterity in hunting and seizing their prey. The sheriff being answerable for the misdemeanors (10) of these bailiffs, they are therefore usually bound in an obligation with sureties for the due execu[*346 ] tion of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation. Gaolers are also the servants of the sheriffs, and he must be responsible for their conduct. (11) Their business is to keep safely all such persons as are (z) Stat. 42 Ed. III, c. 9. (a) Stat. 1 Hen. V, c. 4. (b) Of Sheriffs, c. 115. high-sheriff. Cowp: Rep. 403. In Ireland, however, this is otherwise, except the wrong complained of was the immediate act or default of the high-sheriff. 57 Geo. III, c. 68, s. 9. If the attorney for the defendant was under-sheriff, that would be ground of challenge to the array, but not for a motion for a new trial. 1 Smith's Rep. 304.] (7) [In Laicock's case, 9 R. 49, Latch. 187, s. c. the action was brought against the undersheriff for a false return of non est inventus. It appeared that while the writ was pending, and before the return, the ander-sheriff had sight of the defendant; but ruled, that the action did not lie against the under-sheriff, for the high-sheriff only is chargeable, and not the undersheriff.] (8) There is no such prohibition now in the case of under-sheriffs. See statute 6 and 7 Vic. c. 73. And deputy sheriff's are now appointed in England with general power to execute and return process. Statute 3 and 4 Wm. IV, c. 42. (9) [No sheriff's officer, bailiff, or other person, can be bail in any action: R. M. 14 Geo. II; 2 Strange, 890; 2 Bla. Rep. 797; Loft. 155; see Tidd. 8th ed. 79; nor take any warrant of attorney R. E. 15 Car. II. Of the duties of bailiffs, see Impey, Off. of Sheriff, 43; Hawk. P. C. Index, tit. Bailiff. If the sheriff appoint a special bailiff to arrest defendant at request of plaintiff, he cannot be ruled to return the writ: 4 T. R. 119; 1 Chitty's Rep. 613; but he is, notwithstanding, respousible for the safe custody of defendant after arrested. 8 Term Rep. 505.] (10) [See Drake v. Sykes, 7 T. R. 113; Doe d. James v. Brawn, 5 B. and A. 243.] (11) [The keeper must not put prisoners in irons, unless in case of necessity. 4 Geo. IV, c. 64, s. 10; and see as to this 1 Hale, 601; 2 Hawk. c. 22, s. 32; 2 Inst. 381. In some cases gross cruelty on the part of the galoer causing death would amount even to murder. See Fost. 322; 17 How. St. Tri. 398; 2 Stra. 856; 1 East, P. C. 331; Fost. 321; Hale, 432; 2 id. 57; 1 Russel on Crimes, 667. In criminal cases, if a gaoler assist a felon in making an actual escape, it is felony at com mon law : 2 Leach, 671; and in some cases, it is an escape to suffer a prisoner to have greater liberty than can be by law allowed him, as to admit him to bail at law, or suffer him to go beyond the limits of the prison. Hawk. b. 2, c. 19, s. 5. A voluntary escape amounts to the same kind of crime, and is punishable in the same way as the original offender, whether he be attainted, indicted, or only in custody on suspicion. 1 Hale, 234; 2 Hawk. c. 19, s. 22. And a person who wrongfully takes on himself the office of gaoler is as much liable as if he were duly appointed. 1 Hale, 594. But no one can be punishable in this degree for the default of a deputy. Nor can any gaoler be a felon, in respect of a voluntary escape, unless at the VOL. 1.-28 1 Salk. 272. note. time the offence 217 committed to them by lawful warrant; and, if they suffer any such to escape. the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured. (c) And to this end the sheriff must (1) have lands sufficient within the county to answer the king and his people. The abuses of gaolers and sheriff's officers, toward the unfortunate persons in their custody, are well restrained and guarded against by statute 32 Geo. II, c. 28, and by statute 14 Geo. III, c. 59, provisions are made for better preserving the health of prisoners, and preventing the gaol distemper. (12) The vast expense, which custom has introduced in serving the office of highsheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 and 14 Car. II, c. 21, that no sheriff (except of London, Westmoreland, and towns which are counties of themselves) should keep any table at the assizes, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 2001. II. The coroner's is also a very ancient office at the common law. He is called coronor, coronator, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned. (e) And in this light the lord chief justice of the king's bench is the principal coroner in the kingdom; and may, if he pleases, exercise the jurisdiction of a coroner in any part of the realm. (f) But there are also particular coroners for every county [*347] of England, usually four, but sometimes six, and sometimes fewer. (g) This office () is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county. He is still chosen by all the freeholders in the county-court; (13) as by the (c) Dalt. c. 118. 4 Rep. 34. (d) Stat. 9 Edw. II, st. 2. 2 Edw. III, c. 4. 4 Edw. III, c. 9. 5 Edw. III,c. 4. 13 and 14 Car. II, c. 21, § 7. (e) 2 Inst. 31. 4 Inst. 271. (g) F. N. B. 163. (h) Mirror, c. 1, § 3. (ƒ) 4 ep. 57. of his prisoner was felony, and cannot be made so by its becoming so afterwards. 1 Hale, 591. Neither can he be thus indicted till after the attainder of the principal: Hawk. b. 2, c. 19, s. 26; though he may be fined for the misprision. Id. A negligent escape may be punished by fine at common law: 2 Hawk. c. 19, s. 31; and a sheriff is thus liable for the default of his duty. Id. One instance of such negligence does not amount to a forfeiture of the gaoler's office, though a repetition of such misfeasance will enable the court to oust him in their discretion. Hawk. b. 2, c. 19, s. 30. When a gaol is broken by thieves the gaoler is answerable; not so if broken by king's enemies. 3 Inst. 52. The king may pardon a voluntary escape before it is committed: 2 Hawk. c. 19, s. 32; and see further as to prison breach and rescue, post, book 4, 130, 131. In civil cases, if the sheriff's gaoler suffer a prisoner to escape, the action must be brought against the sheriff, not against the gaoler; for an escape out of the gaoler's custody is, by intendment of law, out of the sheriff's custody. 2 Lev. 159; 2 Jones, b. 2; 2 Mod. 124; 5 id. 414, 416. But an action lies against a gaoler for a voluntary escape, as well as against the sheriff, it being in the nature of a rescue: 2 Salk. 441; 3 id. 18; and see further as to the action for escape, post, book 3, 165.] (12) The general powers and duties of sheriffs in the United States are much the same as in England; their liabilities also correspond. In the United States, however, this officer is chosen by popular vote. The statutes generally allow him to appoint as many general deputies as he sees fit, and also an under-sheriff, who, besides possessing the powers of a gene deputy, will succeed the sheriff in case of vacancy until an election can be had under the Lur. The sheriff may also depute persons for the service of particular process, whose powers will be limited to such service. A general deputy cannot appoint a deputy, but it seems that he may authorize a person to serve a particular writ. Hunt v. Burrel, 5 Johns. 137. The sheriff is liable for all neglects of duty by the under-sheriff and deputies, and for all acts colore officii. McIntyre v. Trumbull, 7 Johns. 35; Knowlton v. Bartlett, 1 Pick 271. And this even though they may be trespasses; as where, on a writ against one person, he seize the goods of another. Ackworth v. Kempe, Doug. 40; Grinnell v. Phillips, 1 Mass. 530; Tuttle v. Cook, 15 Wend. 274. And actions for breach of duty must be brought against the sheriff, and` not against a deputy. Paddock v. Cameron, 8 Cow. 212; Harlan v. Lumsden, 1 Duvall, 83. The officer who serves the process of the federal courts is called a marshal. He is appointed by the president, with the advice and consent of the senate; he appoints deputies. and his powers, duties and liabilities correspond to those of sheriff. '13) The statute 7 and 8 Vic. c. 92, regulates the election. policy of our ancient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people; (i) and as verderors of the forest still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law de coronatore eligendo ; (1) in which it is expressly commanded the sheriff "quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere." And in order to effect this the more surely, it was enacted by the statute (k) of Westm. 1, that none but lawful and discreet knights should be chosen: and there was an instance in the 5 Edw. III, of a man being removed from this office, because he was only a merchant. (7) But it seems it is now sufficient if a man hath lands enough to be made a knight, whether he be really knighted or not: (m) for the coroner ought to have an estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehavior; (n) and if he hath not enough to answer, his fine shall be levied on the county as the punishment for electing an insufficient officer. (0) Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands, so that, although, formerly no coroners would condescend to be paid for serving their country, and they were, by the aforesaid statute of Westm. 1, expressly forbidden to take a reward, under pain of a great forfeiture to the king; yet for many years past [*348] they have only desired to be chosen for the sake of their perquisites: being allowed fees for their attendance by the statute 3 Hen. VII, c. 1, which Sir Edward Coke complains of heavily; (p) though, since his time, those fees have been much enlarged. (q) (14) The coroner is chosen for life; but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or, by the king's writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it. (r) And by the statute 25 Geo. II, c. 29, extortion, neglect, or misbehaviour, are also made causes of removal. The office and power of a coroner are also, like those of the sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw. I, de officio coronatoris; and consists, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. And this must be "super visum corporis;" (s) (15) for, if the body be not found, the coroner cannot sit. (t) (i) 2 Inst. 558. (1) 2 Inst. 32. (j) F. N. B. 163. (p) 2 Inst. 216. (t) Thus, in the Gothic constitution, before any fine was payable by the neighborhood, for the slaughter of a man therein. de corpore delicti constare oportebat ; i. e non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et cosum. Potest enim homo etiam ex alia causa subito mori." Stiernhook de Jure Gothor. 1, 3. c. 4. (14) Fees are now abolished, and coroners are paid by salary. Statute 23 and 24 Vic. c. 116. And it may be added that the office is usually held by men of respectable character and standing. (15) [When an unnatural death happens, the township are bound, under pain of amercement, to give notice to the coroner. 1 Burn. J. 25th ed. 786. Indeed, it seems indictable to bury a party who died an unnatural death, without a coroner's inquest: Id.; and if the township suffer the body to putrify, without sending for the coroner, they shall be amerced. Id. When notice is given to the coroner, he should issne a precept to the constable of the four. five or six next townships, to return a competent number of good and lawful men of their townships, to appear before him in such a place, to make an inquisition touching that matter; or he may send his precept to the constable of the hundred. 2 Hale, 59; 4 Edw. I, st. 2; Wood. Inst. b. 4, c. 1. As to form of inquisition, see 2 Lord Ray. 1305; Burn, J. 1 vol. 25th ed. 787, 789. If the constable make no return, or the jurors returned appear not, they may be amerced. 2 Hale, 59. It seems that a coroner ought to execute his office in person. and not by deputy, for he is a judicial officer. Id. 58; Wood. Inst. b. 4, c. 1; 1 Burn, J. 24th ed. 787, 789; 3 Barn. and Ald. 264. The jury appearing is to be sworn, and charged by the coroner to inquire, |