case gabriel widow against peter clerk a mayor who be both judge and sheriff  be bind to take sufficient bail but a who tam action for refuse it must he by  information or original writ and not by bill post S Inst roll ab more cro car  Leon wm Jones burr strange hawk dyer side say vide Douglas n and Milward v  thatcher term Rep Morgan vade I post cro car cro James   b post roll ab Inst  more   b I Com dig m bill of debt for l upon the Henry c bring by the  plaintiff tam pro see how pro owner queen and declare that whereas Anthoney  wolley Elizabeth have sue in the court of Nottingham before the say defendant  then mayor and I S and I d sheriff there accord to the custom of the say town  a plaint of trespass sur case against Anthoney the plaintiff upon which a  capias be award by they to oh b sergeant and officer of the say court to take  the say plaintiff and have his body before they at the next court videlicet of  seven to answer c and that afterward videlicet August Elizabeth the say b  arrest he and that he commit he to the prison of Nottingham under the custody  of the say Peter clerk mayor of the say town and keeper of the queen gaol  there and allege further that he croak Elizabeth er p be then in prison August  Elizabeth do offer to the say mayor keeper of the say gaol surety c to appear  at the next court to answer to the say Anthoney wolley in the say action which  surety he then refuse and keep he in prison until c against the form of the  say statute per quod action to grow progressively the defendant plead nothing  dehet and find against he and this term it be move in arrest of judgement that  the action lie not against the mayor for the surety be not to he offer unto he  but to the sergeant for the mayor be the judge to award the process and can be  a officer to himself to take the bail also the warrant be that he shall take  his body and keep he till the next court videlicet septemb and so till that  day be come he be in the custody of the sergeant in whatsoever prison he be  commit also the surety offer be not accord to the statute for it be that he  shall appear ad to answer whereas it be to he only for his appearance and not  for his answer say non allocantur for it be hold clear that the plaintiff be  to recover for the sergeant be but the inferior officer and although the mayor  be judge in some respect yet he may he a officer for keep the gaol and here he  be not only the judge but the sheriff also and the plaintiff be in prison  under he it be croak Elizabeth proper to offer surety to he and so be the  common course in London upon plaint before the sheriff and a precept to the  sergeant to arrest one the surety shall he find and offer to the sheriff Henry  pl and when the party be bring to the gaol he be under the mayor custody and  not of the sergeant a and they hold clear that the surety offer be accord to  the statute and command judgement to he enter accord but it be stay till the  next day Walmsley sergeant then say that the action be not well bring for the  Elizabeth c be that no action shall he bring but by information or original  action and not otherwise and this be by bill of debt coke this action in this  court be the proper original action that be sue in this court and so be within  the intent of the Richard c pound Henry c also the Elizabeth c be to redress  disorder in common informer but here he that sue be the party grieve but the  court hold it will he hard to maintain this action to he sue here for the  statute be in the negative that it shall not he sue otherwise which do not  refer to any person but they will advice Daniel say he be of counsel with the  gaoler of Bostin in a bill bring against he in this court and it be abate for  this cause that it be not by information afterward to pasch it be for this  cause only adjudge for the defendant and it can be help by the Elizabeth c for  jeofail for this be not matter of form but substance by misconceive the action