cciii marsh and ASTREYS case marsh bring a action upon the case against astrey  and declare that he have procure a writ of entry sur seize against one a and  thereupon have a summons for land in London and deliver the say summons to  astrey be undersheriff of the same county army pron  interrog  the say astrey  summon the say a upon the land but notwithstanding that do not return the say  summons astrey plead not guilty and it be try in London where the action be  bring for the plaintiff and it be move by cook in arrest of judgement that  here be a mistrial for this issue ought to be try in the county where the land  be because that the cause be local but the exception be not allow for the  action be well lie in London and so the trial there also be good another  exception be move because the action ought to be against the sheriff himself  and not against the undersheriff for the sheriff be the officer to the court  and all return be in his name and I grant that a action for any falsity or  deceit lie against the undersheriff as for embesseling raze of writ c but upon  non feasans as the case be here the not return of the summons it Leonard er p  ought to be bring against the sheriff himself see e and if the undersheriff  take one in execution and suffer he to escape death jyeth against the sheriff  himself another exception be take because the declaration be that the say  astrey to stretch out to contrive skilfully Self querent in action svan  predict prosequend to entangle c do not return the say summons but do not say  tune exist undersheriff snag contrary if a baily errant of the sheriff take  one in execution and he suffer he to escape a action lie against the baily  himself and that be agree in the case of a baily of Middlesex and sir Richard  dyer sheriff of Huntingdon and his under sheriff who suffer a prisoner to  escape and the action be bring against the undersheriff for it may be the  sheriff himself have not notice of the matter because the writ be deliver to  the undersheriff and he take a fee for it and therefore it be reason that he  shall be punish as if a clerk in a office misenter any thing he himself shall  be punish and not the master of the office because he take a fee for it but if  the return make by the baily be insufficient then the sheriff himself shall be  amerce but in the principal case it be clear that the action lie against the  undersheriff if the party will and such be the opinion of gawdy and Clench as  to the other matter because it be not allege in the declaration that the  defendant be undersheriff at the time the declaration be good enough  notwithstanding that for so be all the precedent and if the defendant be not  undersheriff the same shall come in of the other side see e and afterward in  the principal case judgement be give for the plaintiff cro trin Elizabeth in  the common plead