Beawfage's Case

Garranty 72. A collateral warranty shall not bar a title of dower, for that continues the essence according to the original creation ; and yet for that ass action is given ; and therefore there is a difference between a collateral warranty, and a fine levied, and five years passed ; [99 a] for upon a fine and five years passed all the said titles are bound ; and the title of (a) dower also, if an action be not brought within the time prescribed by the statute, vide Plow. Corn. 373. a. [99 b] BEAWFAGE'S CASE, Mich. 10 Jacobi 1. Since the stat. 23 H. 6. upon a fieri facias delivered to the sheriff, he may take a bond of the defendant to pay the money into Court at the return of the writ. Such bond is not within the statute 23 H. 6. for that statute extends only to such bonds which any in his ward makes to the sheriff; but is good at COMMOIL law. Nota. *Exposition of the clause, that if any of the sheriff's, &c. take any obligation in other form by colour of their office, it shall be void.* In this term it was moved at the Bar in the case of one Beawfage, if the sheriff who has a fieri facias may take a bond of the defendant to pay the money into Court at the return of the writ ; and the doubt which was conceived upon it, was upon the general words of the Act of (a) 23 H. 6. cap. 10. And if any of the said sheriff's, or other officers, or ministers aforesaid, take any obligation in other form, by colour of their offices, that it be void, and such bound to pay the money into Court, &c. is in other form than the statute prescribes. But upon consideration of all the parts of the said Act, it was resolved, that such bond was not made void by the said Act, and therefore cohterentia provisionum actus praq' est observanda. First, (as to this matter) it is enacted, that sheriffs, &c. shall let out of prison all persons arrested by them, or in their ward by force of any writ, bill, or warrant, in any action personal, or for cause of indictment of trespass, upon reasonable surety of sufficient persous having sufficient within the counties where such persons are so let to bail, to keep their days, &c. (except persons in execution by capias utlagat', excone cap', surety of peace, and persons committed by the special command of any justice, and vagrants). The second clause is, that no sheriffs, &c. shall take, or cause to be taken or made any obligation for any cause aforesaid, or by colour of [100 a] their office, but (a) only to themselves, of any person nor by any person which shall be iii their ward by the course of the law, btit by the name of their office, and upon condition written, that the prisoners appear at the day contained in the said writs bills, or warrants, and in such places as the said writs, bills, or warrants require. (Then comes the said clause :) and if any of the said sheriffs, &c. take any obligation in other form by colour of their offices, that it shall be void. So that the first branch contains the clause of the precept and commandment to sheriffs, that they shall let prisoners to bail, who were arrested in personal actions, &c. which the sheriff could not do before this Act, as appears by (1) 22 H. 6. 46, a. b. 19 H. 6. 43. a, 21 E. 4. 77. b. F. N. B. (25.) 251. a. b. The (a) Cr. Jac. 333. Ant. 49. b. Co. Lit. 326. a. 6 E. 2. Dower 145. 19 E. 2. Dower 165. Cr. Car. 201. 9 Co. 140. b. 8 Co. 72. b. Dyer 72. pl. 3. 224. 28. 2 Co. 93. a. 10 Co. 49. b. 1 Roll. Rep. 160. 3 Inst. 216. Moor. 53. 2 Roll. Rep. 69. 409. Golds)). 184. 3 Leon. 50. 221. Palm. 235. (a) Cm. El. 66. Dy. 25. pl. 157. 318. pl. 1. 119. pl. 1, 2, 3, 4. 324. pl. 32, 33. 364. pl, 29. 37 H. 6. 1. a. Fitz. Obliga. 4. Br, Obliga. 37. Plowd. 62. b. 63. a. 65 a. Rest. Sheriffs 25. 1 Leon. 132. 2 Leon, 78. 107. 118. 3 Leon. 208. 228. 1 Roll. Rep. 40. 169. 2 Roll. Rep. 201. Savil. 81. Latch. 23. 34. 143. 0. Bondi 110. 1 Jones 65. Hutt. 70. 3 Inst. 194. 1 Roll. 537. Moor 247. Owen 90. Goldsb. 54. 66. Cro. Car. 287. 309. 448. 1 Keb. 391. Noy. 33. 76. 172, 173. 3 Keb. 191. 2 Anders. Godby, 136. 122. Hetl. 25. 175. F. N. B. 251. h. (a) Plowd. 68. b. (b) F. N. B. 251. b. Br. Mainor 37. Plowd, 67. a. contra, note (8). second branch contains the form of the bond by which he shall be let to bail : the third, the penalty, if the sheriff do not observe the form prescribed by the statute, so that upon the coherence and dependency of the branches, the later words, although they are general, shall extend only to the precedent branch, sc. of bonds taken of those who are in their ward (e), And according to this resolution it The sheriff has no authority to take a bond for the appearance of persons arrested by him, under process issuing upon an indictment at the quarter-sessions for a nrisdemeanour, but only a recognizance for their appearance. _Bengough v. Rossiter, 4 T. R. 505. affirmed on error, 2 H. Black, 418. And the sheriff cannot take bail on an attachment for a contempt, though a Judge at his chambers may. Anon, I Strange, 479. Field v. Waterhouse, Corn. Rep. 264. Bail bonds on an attachment out of Chancery are neither compellable to be taken, nor prohibited by the statute, but they are good at common law, Morris v. Hayward, 6 Taurit. 569. S. C. 2 Marsh. 280. An attachment for non-payment of...