Bailiff

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Not to be confused with Baillif.

A bailiff (from Middle English baillif, Old French baillis, bail "custody, charge, office"; cf. bail, based on the adjectival form, baiulivus, of Latin bajulus, carrier, manager) is a manager, overseer or custodian; a legal officer to whom some degree of authority or jurisdiction is given. Bailiffs are of various kinds and their offices and duties vary greatly.[1]

Another official sometimes referred to as a bailiff was the Vogt: see Vogt and Vogt (Switzerland).

British Isles[edit]

Historic bailiffs[edit]

Bailiff was the term used by the Normans for what the Saxons had called a reeve: the officer responsible for executing the decisions of a court. The duty of the bailiff would thus include serving summonses and orders, and executing all warrants issued out of the corresponding court. The district within which the bailiff operated was called his bailiwick, even to the present day. Bailiffs were outsiders and free men, that is, they were not usually from the bailiwick they were responsible for.

Throughout Norman England, the Saxon and Norman populations gradually mixed, and reeve came to be limited to shire-level courts (hence sheriff), while bailiff was used in relation to the lower courts. Primarily then, bailiff referred to the officer executing the decisions of manorial courts, and the hundred courts. Likewise, in Scotland a bailie was the chief officer of a barony (baron bailie), and in the Channel Islands they were the principal civil officers. With the introduction of Justices of the Peace (magistrates), magistrates' courts acquired their own bailiffs.

Historically, courts were not always concerned with legal matters, and often decided administrative matters for the area within their jurisdiction. A bailiff of a manor, therefore, could often find themselves overseeing the manor's lands and buildings, collecting its rents, managing its accounts, and running its farms (see Walter of Henley).[1]

In the 19th century, the administrative functions of courts were mostly replaced by the creation of elected local authorities (councils). Nevertheless, the term bailiff is retained as a title by the chief officers of various towns and the keepers of royal castles, such as the High Bailiff of Westminster and the Bailiff of Dover Castle.[1] In Scotland, bailie now refers to a municipal officer corresponding to an English alderman.

In the 20th century, the court system was drastically re-organised, with the assize courts taking some of the powers of the shire courts, and becoming the high court; in turn, the remaining elements of the shire court took over the powers of the hundred courts, to form County Courts. The high court acquired the sheriffs, the county court the bailiffs. Bailiffs were now appointed by a County Court Judge, and were removable by the Lord Chancellor

Delegation[edit]

A bailiff could, for practical reasons, delegate his responsibilities, in regard to some particular court instruction, to other individuals. As the population expanded, the need for the services of a bailiff mainly arose from financial disputes; consequently, these assistants came to be closely associated with debt-collection, in the public's minds. By Shakespeare's time, they had acquired the nickname bum-bailiffs, perhaps because they followed debtors very closely behind them; in France, the term pousse-cul (literally push-arse), was similarly used for their equivalent officers.

To avoid confusion with their underlings, the County Courts Act 1888 renamed bailifs as High Bailiffs. This act also formally acknowledged the High Bailiff's right to appoint (and dismiss) under-bailiffs as he wished, and establishing that the High Bailiff retains ultimate responsibility for their actions. The High Bailiff gradually became a purely ceremonial role, the court's clerk liasing with under-bailiffs directly.

The Law of Distress Amendment Act 1888 enacts that no person may act as an under-bailiff to levy any distress for rent, unless he is authorized by a county court judge to act as an under-bailiff.[1] The County Courts Act 1888 restricted the hours an under-bailiff could execute a possession warrant, to only be between 6 a.m. and 10 p.m. (§ 142). It also limited the ability to bring a legal complaint against a bailiff; six days' notice now had to be given (§52).

Modern day usage[edit]

Channel Islands[edit]

In the Channel Islands the bailiff is the first civil officer in each of the two bailiwicks. He is appointed by the Crown, and holds office until retirement. He presides as a judge in the Royal Court, and takes the opinions of the jurats; he also presides over the States, and represents the Crown on civic occasions. The bailiff in each island must, in order to fulfill his judicial role, be a qualified lawyer.

England and Wales[edit]

With the 19th century renaming of bailiffs to High Bailiff, their under-bailiffs generally came to be referred to as bailiffs themselves. The powers and responsibilities of these bailiffs depend on which type of court they take orders from. In emulation of these responsibilities, a number of roles established by 19th century statute laws have also been named bailiffs, despite not having a connection to a court.

Magistrates' bailiffs[edit]

In respect of the large number of petty sessions courts, and the occasional need they had for action by a bailiff, magistrates' bailiffs have long been employed on an act-by-act basis, and are now largely organised as private companies, offering their bailiff services to magistrates. They can also act on behalf of local authorities, who have been awarded a relevant debt liability order by a magistrate. The magistrates' bailiff companies currently in operation are (as of 2014): Marston Group, Collectica, Excel Enforcement, and Swift Credit.

The Blair Ministry took exception to the continued use of a number of ancient terms, especially within the legal system. Under part 3 of the Tribunals, Courts and Enforcement Act 2007, which has not yet come into force (as of April 2014), these bailiffs will be renamed Certified Enforcement Agents, and carry a certificate signifying their authority as (under-)bailiffs.

When executing a relevant warrant, they have the authority to seize and sell goods to cover the amount of the debt owed, whether for rent, road traffic debts, council tax, or non-domestic rates. They must give advance notice, of several days, before visiting the debtor's property. As Agents of a magistrate's court, they cannot enforce the collection of money due under High Court or County Court orders,[2] and are required to gain peaceable entry into property before they can levy any goods within it.

Certificated Enforcement Agents are increasingly being used by local authorities and Her Majesty's Courts and Tribunals Service to carry out the enforcement of both Bail and non-Bail arrest warrants.[3] This usually involves the Bailiff locating a wanted person and taking them into custody. It is common misconception that a Police Officer has to be present to assist the Bailiff with an arrest; however this is not a legal requirement and would only be the case where the Bailiff needs assistance with the arrest or transportation of the prisoner to the Court. Where the person is arrested outside Court hours, the Bailiff may take the detainee to a Police station where they will be held until the Court reopens for business.

In July 2013 HM Court Service announced it is to fully contract out the whole of the compliance and enforcement process to a private company; this would involve the transfer of over 500 of its employees. This decision led to official strike action by some employees on 30 July 2013.[2]

County court bailiff[edit]

County court bailiffs remain directly employed by HM Courts Service, carrying out enforcement for County Courts. The current frequency of different types of case means that they are mainly involved in recovering payment of unpaid county court judgments.;[2] like Magistrates' bailiffs, they can seize and sell goods to recover a debt. They can also affect and supervise the possession of the property and the return of goods under hire purchase agreements, and serve court documents. They also execute arrest warrants and search warrants.

A Tipstaff (an officer of the High Court), can call on county court bailiffs to aid them in serving personal papers such as oral examinations, and divorce papers, if necessary.[2]

Under part 3 of the Tribunals, Courts and Enforcement Act 2007, County Court Bailiffs (as well as any remaining directly employed bailiffs in other courts) are to be renamed exempted enforcement officers.

Water bailiff[edit]

Water bailiffs also exist in England and Wales to police bodies of water and prevent illegal fishing. They are generally employees of the Environment Agency and are to be deemed as a constable with the same powers and privileges for the purpose of the enforcement of the Salmon and Freshwater Fisheries Act 1975.

Jury bailiffs[edit]

Jury bailiffs are court ushers who monitor juries during their deliberations and during overnight stays.[2][4]

Colloquial uses of the word[edit]

As most people's contact with bailiffs is when a bailiff comes to take property to enforce debt, public perception does not usually distinguish between bailiffs and debt collectors. Indeed, many mere debt collectors often publicly refer to themselves as bailiffs. However, it is illegal for a debt collector to call themselves a bailiff, if they are not - that is, if they are not a certified officer acting on a court order, they may not call themselves a bailiff. Mere debt collectors do not have the powers or authority of a bailiff.

The officer appointed by a sheriff was also sometimes described as the sheriff's bailiff, on account of the similarity of the role. However, they are not the same, and sheriff's officers have much greater powers.

Due to the negative association with debt collection, in former times, in The Fens of eastern England, the term Bailiff of Bedford was often used as slang for destructive floods of the River Great Ouse.[5][6]

Isle of Man[edit]

Main article: High Bailiff

The High Bailiff is the head stipendiary magistrate in the Isle of Man.

Scotland[edit]

See also: Water bailiff

The Scottish form of this post is the bailie. Bailies served as burgh magistrates in the system of local government in Scotland before 1975 when the system of burghs and counties was replaced by a two-tier system of regional councils and district councils. The two-tier system was later replaced by a system of unitary authorities.

Under the new arrangements the bailies were abolished and replaced by Justices of the Peace serving in the District Courts of Scotland, these posts no longer holding any authority within the local authority as an administrative body. However the term bailie is still used as an honorary title by Glasgow City Council for a number of senior councillors who can deputise for the Lord Provost.

The Scottish equivalent of a sheriff's bailiff or high bailiff is the sheriff officer (for the Sheriff Court) or the messenger-at-arms (for the Court of Session). These positions will be abolished by §60 of the Bankruptcy and Diligence etc. (Scotland) Act 2007, and replaced with the office of Judicial Officer under §57(1) of that enactment.

In Scotland, the office of water bailiff does exist, with power to enforce legislation relating to the illegal collection of salmon and trout.

Low Countries and German-speaking lands[edit]

The office of bailiff was historically used in Flanders, Zealand, the Netherlands, Hainault, and in northern France. The bailiff was a civil servant who represented the ruler in town and country. In Flanders the count usually appointed the bailiff.

In the Low Countries and German-speaking Europe this position was known as baljuw (from bailli), but other words were used such as schout "reeve, (medieval) bailiff" (Holland, Antwerp, Mechelen, 's-Hertogenbosch, Turnhout), meier "majordomo" (Asse, Leuven), drossāte "steward, seneschal" (other parts of Brabant), amman (Brussels), and Amtmann and Ammann (Germany, Switzerland, Austria). The Amtmann was the senior official appointed by a territorial lord to oversee the administration and jurisdiction of a manorial estate or equivalent.

Modern-day Belgium[edit]

Most of the functions associated with the older Dutch-language terms translated as bailiff in English, are no longer found in one officer. The modern terms huissier de justice (in French) or gerechtsdeurwaarder (in Dutch) however, are often, and inaccurately, translated into English as bailiff, though the latter under an Anglo Saxon law system is by no means identical to the former who is typical for many countries influenced by the Napoleonic Code. He or she is a sworn officer who may legally deliver exploits (process serving), see to the execution of court orders such as the confiscation of goods, or make formal record of events, acts and circumstances. In Belgium, the bailiff can be appointed by a confiscating court to exercise the judicial mandate of schuldbemiddelaar (in Dutch) or médiateur de dettes (in French), a debt negotiator, in a procedure called collectieve schuldenregeling (CSR) or médiation collective de dettes, a collectively negotiated settlement of debts, which is comparable with the regulations by the Wet Schuldsanering Natuurlijke Personen (WSNP) in the Netherlands.

The official judicial tasks are often supplemented by tasks as independent entrepreneurs, for instance for non-judicial debt collecting, specific judicial advice or writing general conditions of sale, judicial assistance at lower courts (canton level), etc.

The present Netherlands[edit]

In the Netherlands, the term bailiff translates to Baljuw, which had various meanings and sometimes carried the same privileges and duties as the title Drost or Drossaard, depending on the jurisdiction. Pieter Cornelisz Hooft for example, carried both the titles "Drost van Muiden" and "Baljuw van Goeilandt", that were more or less honorary titles by that time. The two neighboring areas had needed the office to oversee the appointment of local council staff (mostly referred to as "schout & schepenen"), whose most important interests were the passage of travelers and goods by water (Muiden) and overland (Gooiland). The Netherlands was governed by waterschappen as well as by regional city councils, and both institutions once had honorary titles of Baljuw or Drost.

These days, the term "Bailiff" is not used in the Netherlands, except for the position of president and some honorary Bailiffs of the Dutch branch of the Knights Hospitaller.

A person who amongst others sees to the execution of court orders such as the confiscation of goods is called a deurwaarder.

Pre-Revolutionary France[edit]

Magistrates[edit]

See also: Vidame

Under the Ancien Régime in France, the bailli (earlier baillis), or bailie, was the king's chief officer in a bailiwick or bailiery (bailliage), serving as chief magistrate for boroughs and baronies, administrator, military organizer, and financial agent. In southern France the term generally used was sénéchal who held office in a sénéchaussée. The bailie convened a bailie court (cour baillivale) which was an itinerant court of first instance. The administrative network of bailiwicks was established in the 13th century over the Crown lands (the domaine royal) by Philip Augustus who commissioned the first bailiff under the name bailli. They were based on pre-existing tax collection districts (baillie) which had been in use in formerly sovereign territories, e.g., the Duchy of Normandy. Bailie courts, as royal courts, were made superior over existent local courts; these lower courts were called:

  • provost courts (prévôtés royales), sat by a provost (prévôt) appointed and paid by the bailie;
  • Norman vicomtés, sat by a viscount (vicomte) (position could be held by non-nobles);
  • elsewhere in northern France, châtellenies, sat by a castel 5 $5 foot long (position could be held by non-nobles);
  • or, in the south, vigueries or baylies, sat by a viguier or bayle.

The bailie court was presided over by a lieutenant-bailie (lieutenant général du bailli). Bailie courts had appellate jurisdiction over lower courts (manorial courts, provost courts) but was the court of first instance for suits involving the nobility. Appeal of bailie court judgments lay in turn with the provincial Parlements. In an effort to reduce the Parlements' caseload, several bailie courts were granted extended powers by Henry II of France and were thereafter called presidial courts (baillages présidiaux). Bailie and presidial courts were also the courts of first instance for certain crimes (previously the jurisdiction of manorial courts): sacrilege, treason, kidnapping, rape, heresy, money defacement, sedition, insurrection, and illegal bearing of weapons.

By the late 16th century, the bailie's role had become mostly symbolic, and the lieutenant-bailie was the only one to hear cases. The administrative and financial role of the bailie courts declined in the early modern period (superseded by the king's royal tax collectors and provincial governors, and later by intendants), and by the end of the 18th century, the bailiwicks, which numbered in the hundreds, had become purely judicial.

Ushers, beadles and tipstaffs[edit]

In medieval France court bailiffs did not exist as such, but their functions were carried out by several court officers. The ussier (modern huissier), or usher, originally the doorkeeper, kept order in the court. The somoneor (mod. semonneur), or court crier, adjourned and called the court to order and announced its orders or directions. The bedel (mod. bedeau), or beadle, was the court's messenger and served process, especially summonses (sumunse, somonse, mod. semonce). And finally the sergens (mod. sergent), or tipstaff, enforced judgments of the court, seized property, and made arrests. The tipstaff's badge of authority was his verge, or staff, made of ebony, about 30 cm long, decorated with copper or ivory, and mandatory after 1560.

The Parlement courts consolidated most of these functions in its tipstaff (varlet), and the rest of the court system followed suit as the tipstaff was given the broadest powers. During the Renaissance, the four officers were reduced to two - the huissier and sergent - who took on all these functions, with the distinction being that the huissier served in higher courts and sergent in bailie courts (sergent royal) and manorial courts (sergent de justice). In 1705 the two professions were fused by royal edict under the name huissier.

Canada[edit]

In parts of Canada, bailiffs are responsible for the service of legal process. In some jurisdictions, duties of the bailiff include the service of legal documents, repossession and evictions in accordance with court judgments, application of wheel clamps and the execution of arrest warrants. Some jurisdictions also require that applicants receive special training and have a degree in Paralegal Technology to become a bailiff.

Ontario[edit]

Ontario Provincial Bailiff Shoulder Flash

In Ontario, provincial bailiffs provide primary transportation of prisoners between correctional facilities such as jails and prisons.[7] Under the Ministry of Correctional Services Act (Ontario), while transporting prisoners, bailiffs have the powers of police constables. When necessary, Provincial correctional officers will act as bailiffs for short and long term assignments and full-time bailiffs are typically recruited from the correctional officer ranks. Provincial bailiffs are armed with expandable batons and pepper spray and operate under the jurisdiction of the provincial Ministry of Community Safety and Correctional Services. Duties normally associated with bailiffs in other jurisdictions, such as residential evictions, seizures, and other processes order by the court, are performed by sheriffs under the office of the Attorney General of Ontario[8] or "private" bailiffs if initiated without a court order.

Private bailiffs are licensed by the Province of Ontario's Ministry of Consumer Services under the Bailiffs Act. Assistant bailiffs are similarly licensed, but must be supervised by a bailiff. Bailiffs in this capacity assist others who have a right to exercise self-help to repossess or seize something, or to evict under a commercial tenancy. Bailiffs are agents of the person contracting their services, not government employees or peace officers, and are prohibited from using force to seize goods or evict tenants.[9]

Poland[edit]

In Poland, a court bailiff (komornik sądowy) is a public official (but not a civil servant) who is assigned to undertake enforcement action within the area of the jurisdiction of a single regional court (in Poland “a regional court is established for one or more communes, and, in justified cases, more than one regional court may be established for a single commune”*). With the 2008 amendment of the Court Bailiffs and Enforcement Act of 20 August 1997 a bailiff is allowed to act in the whole territory of the Republic of Poland if and only if the creditors remark in the enforcement application that they exercise a right of selecting a bailiff. Then the bailiff acts beyond its area of action, which might result in a prolonged and ineffective enforcement . However, such practices are inadmissible when the creditors apply for the enforcement to be carried out in respect of real property and other property rights where the regulations on the execution on real property shall apply. The execution proceedings on real property must be conducted only by the court bailiff who acts within the area of the jurisdiction of the Regional Court which keeps land and mortgage register for that real property.

A court bailiff is an individual who is appointed to act as such by the Minister of Justice on application of the person concerned, filed via the intermediary of the President of the Court of Appeal, within whose area the candidate intends to perform acts in enforcement proceedings. Before appointing, the Minister of Justice shall request the Council of the Chamber of the Court Bailiffs to give the opinion of the candidate. The bailiffs are not employed by the Regional Courts (they act at the Regional Courts) but they are self-employed, which means that they have their own registered offices (named Bailiff’s Office in……) and are remunerated by percentage on money recovered and the other fees specified in The Court Bailiffs and Enforcement Act of 20 August 1997. The bailiff also incurs expenses including costs of correspondence, operating costs per kilometer when visiting debtors residing out of the place of bailiff’s office; and the other expenses specified in above mentioned act. All those expenses incurred in the course of proceedings are to be covered by the debtor or by the creditor if the enforcement proceedings are ineffective. The Regional Courts supervise only the work of the bailiffs, especially with reference to the fastness, proficiency and accuracy of their activities; the correctness of office management and accounting. When enforcing the bailiffs are subordinate to the judicial decisions and President of the Regional Court. The bailiff acts on behalf of a creditor who is legally owed money. The creditor files an application for commencing enforcement proceedings and an original writ of execution with an enforcement clause inserted herein.

The court bailiffs are responsible for:

  • enforcing judicial decisions concerning pecuniary and non-pecuniary claims,
  • securing the aforesaid claims,
  • enforcing other writs of execution issued pursuant to separate provisions and writs of execution requiring to be enforced pursuant to separate provisions by way of court enforcement without providing them with the enforcement clause,
  • drawing up the report regarding the actual state of affairs before commencing legal proceedings and issuing decisions- if ordered by the court or prosecutor,
  • serving court notices, announcements, objections, complaints and other documents against a receipt and date-annotation,
  • exercising official supervision of the voluntary public auctions with adjudication to the lowest and highest bidder- upon a motion from the auction organizer.

(Sources: www.ms.gov.pl Ustawa o komornikach sądowych i egzekucji z dnia 29.08.1997; Kodeks postępowania Cywilnego)

United States[edit]

Many in the United States use the word bailiff colloquially to refer to a peace officer providing court security. More often, these court officers are sheriff's deputies, marshals, corrections officers[10] or constables. The terminology varies among (and sometimes within) the several states.

From its staff, the Court may appoint by court order bailiffs as peace officers, who shall have, during the stated terms of such appointment, such powers normally incident to police officers, including, but not limited to, the power to make arrests in a criminal case, provided that the exercise of such powers shall be limited to any building or real property maintained or used as a courthouse or in support of judicial functions.[citation needed]

In rural areas, this responsibility is often carried out by the junior lawyer in training under the judge's supervision called a law clerk who also has the title of bailiff.

Whatever the name used, the agency providing court security is often charged with serving legal process and seizing and selling property (e.g., replevin or foreclosure). In some cases, the duties are separated between agencies in a given jurisdiction. For instance, a court officer may provide courtroom security in a jurisdiction where a sheriff handles service of process and seizures.

  • Indiana: In the State of Indiana, Bailiffs are administrative assistants that are employed by judges who reside in a county judicial circuit. For example, a County Court Judge, Superior Court Judge, and Circuit Court Judge may have at least one Bailiff who is in charge of calling a jury, seating a jury, as well as attending to a juror's needs. They are sworn officers of the court.
  • Maryland: Within the state of Maryland there are two types of bailiffs, Circuit Court and District Court. Circuit Court bailiffs are employees of the prospective county of which they work and possess no law enforcement authority. They are unarmed and provide services to the courtroom judge, escort and maintain the jurors/jury pool, and maintain courtroom decorum. District Court bailiffs provide similar services as their Circuit Court counterparts but differ in that they are employees of the state of Maryland, are armed, and have limited law enforcement authority while on duty.[11]
  • Massachusetts: The Trial Court officers are responsible for the security of all court buildings in the state as well as for the people who work in or visit them.
  • New York: In the New York State Unified Court System, Court Officers, are responsible for providing security and enforcing the law in and around court houses. Under New York State penal code, they are classified as "peace officers." New York State Court Officers are able to carry firearms both on and off duty, and have the power to make warrantless arrests both on and off duty anywhere in the State of New York. They also have the authority to make traffic stops.[12]
  • Vermont: A high bailiff is an elected county officer who performs certain duties when the sheriff is unable to do so.

See also[edit]

References[edit]

  1. ^ a b c d  One or more of the preceding sentences incorporates text from a publication now in the public domainChisholm, Hugh, ed. (1911). "Bailiff". Encyclopædia Britannica 3 (11th ed.). Cambridge University Press. 
  2. ^ a b c d e "HMcourts-service.gov.uk". HMcourts-service.gov.uk. 2011-04-01. Retrieved 2013-07-30. 
  3. ^ "Civilian Enforcement Agents [...] execute warrants of arrest, committal, detention and distress" (PDF). hmctsformfinder.justice.gov.uk. 
  4. ^ Sprack, J (2006). A Practical Approach to Criminal Procedure (11th ed.). Oxford: Oxford University Press. ISBN 0-19-929830-0.  21.01-21.06
  5. ^ "Stateuniversity.com". Encyclopedia.stateuniversity.com. Retrieved 2013-07-30. [dead link]
  6. ^ "Fromoldbooks.org". Fromoldbooks.org. Retrieved 2013-07-30. 
  7. ^ Ontario Ministry of Correctional Services Act (see Section 19)
  8. ^ "Courts of Justice Act, Section 141". E-laws.gov.on.ca. Retrieved 2013-07-30. 
  9. ^ The Role and Rights of Bailiffs, Ministry of Consumer Services
  10. ^ [1][dead link]
  11. ^ MDcourts.gov[dead link]
  12. ^ New York State Court Officers Association official website. Accessed February 1, 2010.

External links[edit]