of.

Upon recovery of the amount of the security it will be seen How on reference to the twelfth section of the act(c) what the Sheriff amount of security to must do with it: namely, to pay over the whole or so much as be disposed will satisfy the debt of the execution creditor, and if any surplus remains after payment of the debt, together with his poundage and expenses, it must be paid over to the party against whom such writ shall be so issued.

(c) Ante, p. 420, 328.

CHAPTER VII.

CONSERVATOR PACIS.

Cannot act as a magis

trate.

66

UNDER this division of the Sheriff's duties, (it being of little practical importance, seldom or never being called into action,) it is proposed simply to quote the language of Hawkins thereon (a): every Sheriff (says he) is a principal conservator of the peace within his county, and may, without doubt, ex officio award process of the peace and take surety for it. And it seems the better opinion that the surety so taken by him is by the common law looked on as a recognizance or matter of record, and not as a common obligation or matter in pais only; for that it is taken by him by virtue of the Queen's commission, by which he is entrusted with the custody of the county, and consequently by it has an implied power of keeping the peace within such county; and it is a general rule, that whatsoever is done by virtue of the Queen's commission ought to be taken as a matter of record."

But although virtute officii a conservator of the peace, yet it is declared "that all and every acts to be done by any Sheriff, by authority of any commission of the peace during the time of his Sheriffwick, shall be void." Note.-When he is out of office he may act by force of the same commission (b).

(a) 2 Hawk. P. C. c. 8. See also Dalt. c. 11.

(b) Dalt. 27.

CHAPTER VIII.

SHERIFF'S ACCOUNTS.

THE statute of 3 & 4 Will. 4, c. 99, (29th August, 1833,) is so clear and intelligible as to the time, place, and mode of auditing and passing accounts, that it is needless to do more than set out so much thereof as bears immediately upon the subject now under consideration.

Repeal of part of 3

Geo. 1, c.

"Whereas the appointment of Sheriffs, and the audit and passing of their accounts in the Court of Exchequer, are attended with unnecessary expense, delay, and trouble;' for remedy whereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that so much of an act passed in the third year of the reign of his Majesty King George the First, intituled, An Act for the better regulating the Office of Sheriffs, and for ascertaining their Fees, and the Fees for suing 3 out their Patents and passing their Accounts, as entitles and authorises certain officers therein and in the schedule thereto mentioned to demand, take, and receive the fees named in the said schedule, and also the said schedule, and also an act passed in the said third year of the reign of his Majesty King George the First, intituled, An Act for better enabling Sheriffs to sue out their Patents and pass their Accounts, be and the same are hereby repealed.

Sheriff or She

15, and of

c. 16.

"2. And be it further enacted, that from and after the pass- Sheriffs not ing of this Act it shall not be for any necessary riffs of any county, city, or town in England or Wales to sue

out any patent or writ of assistance, or to make or pay proffers, nor shall any bailiff or bailiffs of liberties in England or Wales be required to make or pay any proffers, nor shall he or they have any day of prefixion, or be apposed, or take any oath or

to sue out patent or

pass accounts in

Exchequer.

Sheriff's accounts to be audited by

commissioners for auditing public ac

counts.

25 Geo. 3,

c. 52.

46 Geo. 3,

c. 141.

1 & 2 Geo. 4, c. 121.

Sheriffs going out of office (except those

of Chester,

Lancaster, and Durham,) to

transmit accounts to .commis. sioners.

Sheriff of Westmoreland to transmit

like accounts

yearly.

oaths before the cursitor baron to account, or account, or be cast out of Court, as now or heretofore in use in his Majesty's Court of Exchequer; any law, statute, or usage to the contrary notwithstanding."

"8. And be it further enacted, that the accounts of the present and future Sheriffs of counties, cities, and towns within England, (except the counties palatine of Chester, Lancaster, and Durham,) shall from and after the passing of this Act be examined and audited by the commissioners appointed or to be appointed for auditing public accounts under and by virtue of the three several acts herein-after next mentioned; (that is to say,) an act passed in the twenty-fifth year of the reign of his late Majesty King George the Third, intituled An Act for better examining and auditing the Public Accounts of this Kingdom; an act passed in the forty-sixth year of the reign of his said late Majesty King George the Third, intituled An Act for making more effectual Provision for the more speedy and regular Examination and Audit of the Public Accounts of this Kingdom; and an act passed in the first and second years of the reign of his late Majesty King George the Fourth, intituled An Act to alter and abolish certain Forms of Proceedings in the Exchequer and Audit Office relative to Public Accountants, and for making further Provisions for the Purpose of facilitating and expediting the passing of Public Accounts in Great Britain; and to render perpetual and amend an Act passed in the fifty-fourth Year of his late Majesty, for the effectual Examination of the Accounts of certain Colonial Revenues; and all the powers and provisions now in force of the same acts shall extend and be applicable to the examination, audit, and discharge of the accounts of such Sheriffs by the said commissioners (so far as those powers and provisions are applicable thereto, and are not varied by this Act).

9. And be it further enacted, that every person and persons who now are or who hereafter shall be Sheriff or Sheriffs of any county, city, or town within England, (except the said counties palatine of Chester, Lancaster, and Durham,) shall within two calendar months next after the expiration of his or their office, or in case of the death of any Sheriff' or Sheriffs the Under-sheriff by him or them appointed shall within two calendar months next after the death of such Sheriff or Sheriffs, transmit to the said commissioners for auditing public accounts a just and true account, under his or their hand or hands, of all sums received by such Sheriff or Sheriffs to or for the use of his Majesty, and of all sums paid or claimed by him or them, or on his or their behalf (save such sums as are or have been usually inserted and allowed in the bill of cravings), with all such particulars as shall be needful to explain the same: Provided always, that such Under-sheriff shall not be personally responsible for any sum or sums received by such deceased Sheriff, but that the same shall be answered by the representatives of the said deceased Sheriff, or otherwise in due course of law: Provided always, that the Sheriff of Westmoreland shall yearly, within two calendar months next after the first day of January in every year, transmit or cause to be transmitted to the said commissioners for auditing the public accounts a like account under his hand, or the hand of his Under-sheriff, of all sums paid by him to or for the use of his Majesty within or during the year of our Lord next preceding, and of all sums paid or claimed by him or on his behalf during the same period (save such sums as are or have been usually inserted in the bill of cravings), with all such particulars as shall be needful to explain the same.

"10. And be it further enacted, that in case it shall be necessary for The oath or any such Sheriff or Sheriffs, or his or their Under-sheriff, to make oath or affidavit of affidavit to any such account, or any article, matter, or thing relating Sheriff may thereto, such oath or affidavit, except when the said commissioners shall be taken berequire his or their personal examination before them, shall and may be fore a judge, sworn before any of the judges of his Majesty's superior courts of record sioner, or at Westminster, or before any commissioner for taking affidavits in any magistrate.

of the same Courts, or before any master or master extraordinary in the High Court of Chancery, or before any of his Majesty's justices of the

peace.

commis

"11. And be it further enacted, that the claim of every Sheriff or She- Bill of cravriffs for certain allowances usually called the bill of cravings shall, from ings to be and after the passing of this Act, be preferred to the lord high treasurer settled by or the commissioners of his Majesty's treasury for the time being, who, the treaor any three or more of whom, shall and may grant a warrant for the al- sury. lowance of the same in the account of such Sheriff or Sheriffs, or for the payment of such sum or sums of money in respect thereof as they shall think reasonable in that behalf.

Quit rents, &c. to be received by commissioners of

woods, fo

land re

venues.

"12. And whereas the present mode of managing and collecting certain quit rents and vicecomital or viscontiel rents due to his Majesty, and the present mode of accounting for and paying post-fines on alienation of lands and other hereditaments, have been found disadvantageous to the public service, and in- rests, and convenient and troublesome to Sheriffs; for remedy whereof be it enacted, that from and after the tenth day of October next no Sheriff or Sheriffs shall receive or shall be chargeable with the collection and receipt of quit rents, vicecomital or viscontiel rents, and other rates and payments issuing out of or payable to his Majesty in respect of any honors, manors, lands, tenements, or hereditaments in England or Wales, but the same (except such as shall be released pursuant to the provision next hereinafter contained) shall hereafter be considered as part and parcel of the land revenue of the crown, and shall be under the care, management, and direction of his Majesty's commissioners of woods, forests, and land revenue, who shall have and exercise the same powers and authorities for collecting and enforcing the payment thereof as are given to or vested in them for collecting and enforcing payment of any other part of his Majesty's land revenue by any act or acts now in force concerning the same. "13. And whereas many of the said rents are very ancient, and have become obsolete, and it is not known out of or from what hereditaments and premises the same are issuing and payable, so that payment thereof cannot be enforced; be it therefore enacted, that it shall be lawful for the lord high treasurer or the commissioners of his Majesty's treasury, and he and they

Power to

treasury to release cer

tain rents.