Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
must needs be notorious in what County they arise the Attorney knowingly laying them out of their proper Counties unless in the cases before expressed or for such other causes as shall be allowed by the Judges of the Court and duely made to be true to be severely punished That although the Declaration be delivered seven days before the last day of the next preceding Term or after yet before Plea upon Oath made the visne may be changed upon motion in the said Transitory actions the next Term after and the Defendant to plead to the new action as he should have done in the other without delay That the visne may be changed upon Oath before though the Defendant come in by Exigent And in Styles his practical Register fol. 533. it is said that in Transitory actions the Plaintiff after the Essoin-day of the subsequent Term after the appearance shall not alter his own visne though he would pay Costs or give Imparlance which seems to imply that he may do it the same Term of the appearance with leave of the Court upon motion as aforesaid But this being a discretionary act of the Court little else shall be said but left to the pleasure of the Judges of this Court who never do it without they see some necessary reason for it How to proceed so as to have a special Capias Utlagat together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendants Lands THe way of this proceeding in this Court is much different from that in the Court of Common-Pleas For there the Attorney for the Plaintiff bringing in the special Capias Vtlagat with the Inquisition thereupon taken annexed into the Outlawry Office of that Court and delivering thereof to the Clerk of the Outlawries there the said Clerk forthwith maketh a Transcript of the Writ Return and Inquisition in a large Exemplifying Character and setteth his own name to the bottom of it and then he delivereth it to the Attorney for the Plaintiff who carrieth it into the Exchequer But in this Court the practice is and long hath been to go a farther way about and what the reason is for it is not well known but conjectured to be either that of the Grandeur of this Court as is said before or else to punish the Defendant the more for adventuring to run so high a contempt against the King his Crown and Dignity as not to appear in this Court after so many several Process against him but to suffer himself to be Outlawed and this to be by a pecuniary punishment arising by the charges of getting a Lease of his Lands from the King which must all come out of his Estate at the last but not to detain you any longer the way is thus The Attorney for the Plaintiff must bring the special Capias Vtlagat and Inquisition annexed into that Filizer's Office who made it out for he as is said before is Clerk of the Outlawries as well as Filizer and he will make you a Transcript of the Writ Return and Inquisition as is before said the Clerk of the Outlawries doth in the Common-Pleas Then the said Attorney taketh back the same together with the said Transcript and then fileth the Writ and Inquisition with the Custos brevium of this Court and then goeth to the Cursitor of the County where the Lands lie mentioned in the said Inquisition and he maketh him a Writ of Certiorari to certify the said Writ Return and Inquisition so filed as aforesaid into the high Court of Chancery which Certiorari he carrieth to the said Custos brevium who alloweth the same with the Lord Cheif Justice of this Court and then the Attorney delivereth the said Transcript to the Custos brevium who affixeth it to the Certiorari and then the Custos brevium sealeth up the same and delivereth it to the Attorney under Seal who carrieth it forthwith into the Petty-Bag-Office belonging to the said high Court of Chancery where it is filed of Record Out of which Office the same is sent by a Writ of Mittimus into the Court of Exchequer into the King's Remembrancers-Office there where it is likewise filed of Record after which the said Attorney for the Plaintiff retaineth one of the Attornies of that Office who will prosecute the matter so in that Court as to gain a Lease from the King to be granted to the Plaintiff who shall thereby hold the Lands demised for the Term therein mentioned that is to say for so long time as the same shall remain in the King's hands And if after the Outlawry shall be pardoned or reversed by due course of Law and the Defendant thereby restored to all that he hath lost by that Outlawry then the Attorney for the Defendant applying himself to one of the said Attornies of the King's Remembrancer's Office aforesaid and making the same appear he will get the King's Hands taken off the Estate either by sueing out a Writ of Amoveas Manus or by Petition or motion in Court or otherwise according to the custome used in that Court Somewhat concerning the drawing of Declarations by Original Writ IT hath been formerly the practice both of this Court and the Court of Common-Pleas to repeat the cause of Action twice in the Declaration that is to say to the Writ and to the Count as may appear both by Rastal's and Coke's Books of Entries but it is now in some sort of Actions left off in the Common-Pleas and in this Court also by the former orders mentioned among others it was ordered For avoiding of long and unnecessary repetitions of the Original Writ in Actions upon the Case and Personal Actions upon Penal Statutes That Declarations in Actions of Trespass upon the Case or personal Actions of any general Statute namely Huy and Cry Monopolies or for a Suit in the Admiralty and such like other than Debt repeat not the Original Writ but onely the nature of the Action viz. A. B. was attached to answer C. D. in a Plea of Trespass upon the Case or in a Plea of Trespass and Contempt against the form of the Statute and that for the avoiding of the Common Bar and new Assignment the Declaration upon an Original Quare clausum fregit may mention the place certainly and so prevent the use and necessity of it But by these Orders it doth not appear none but long Actions being therein mentioned that Trespass and Trespass and Assault and Trespass and Ejectment being very short Declarations are included therein but left to be declared in as formerly both as to the Writ and Count and so to be laid twice as heretofore hath been used in this Court The manner of removing Actions or Plaints out of Inferiour Courts into this Court and after that how to proceed in them AS to removing of Causes by Writs of Errour Certior Habeas Corpus or the like I shall pass them over as being matters very
03 00 Whereof is paid to the Prothonotaries 01 08 For making every Bail 00 04 For making every Bill of Middlesex every Distringas nuper Vic' and Habeas corpus super Ce ' corpus per prec ' thereupon 00 08 For making every Habeas corpus ad fac ' and Habeas corpus cum pri ' certior ' procedend elegit and habere fac ' possession ' besides the 4d allowed by the Prothonotaries 01 08 For every Sheet of every Declaration or other Pleading recited in a Writ of Damages 00 04 For every Sheet of any Suggestion Declaration or other pleading recited in a Writ of Prohibition or Consultation or any other Writ 00 04 For the entry of every Scire facias 01 00 Every Clerk of the Office and their Clerks have allowed them at the end of every Term from the Seal one Writ sealed not paying any thing called Jeavous Prie. Every Clerk of the Office upon his accompt to the Master of the Office at the end of the Term for every Pound he payeth is allowed 1 s. which is termed pro regardis Paid to the Keeper of the Seal for Bills of Middlesex at our first knowledge For the sealing of every Bill of Middlesex The Keeper of the Bill of Middlesex Seal from the Essoin day untill the continuance day 00 06 From the continuance day untill the next essoin day 00 10 For sealing every Alias and Plur ' Bill every Habeas corpus super Ce ' corp ' and every Distringas thereupon per prec ' 00 01 But now about ten years last past he taketh from the very day the Term ended unto the very day the Term beginneth 00 10 And for every Alias and Plur ' Bill Habeas Corpus and Distringas 00 02 The Seal of the Attachment 00 01 The Seal of the Cap ' 00 01 The Post diem of the Attachment 4 d. The Post Terminum of the Attachment 00 08 For the Seal of a Distringas versus Freeholders 00 01 Fees received by the Secondary For taking the acknowledgment of a Secondary Deed in Court 01 00 For signing costs upon every Judgment by confession Nihil dic ' Verdict and Demurrer 01 00 Also for acknowledgment of every Deed for every Judgment pronounced in open Court every Rule to alter a Visne for every Rule for an Attachment Prohibition Consultation c. he receiveth for the Poors Box 01 00 For allowance of a Writ of Errour coram nobis residen ' 02 00 Whereof to the Box 01 00 For the Allowance of the Writ of Audita querela 02 00 Whereof to the Box 01 00 For the common Bail 01 02 For a special Bail upon Habeas Corpus or a Certiorari upon Attachment 04 10 Fees received by the Secondary for the Judges For every Habeas Corpus ad fac ' rec ' Judges 04 00 For every Procedend 04 00 For a Certiorari to remove a foreign Attachment 04 00 For a Procedend thereupon 04 00 For every Habeas Corpus cum Privilegio 03 00 And out of the said Fee of the Lat ' is accounted and paid to him for them 00 08 Fees received by the Judges Clerks Every Judge's Clerk taketh for every Judges Clerks Warrant for an Habeas Corpus and every other thing whereunto the Judge putteth his name in the Term time 01 00 And in the Vacation 02 00 Also he taketh for the acknowledgment of a Deed before a Judge which he saith is for his Master 06 08 And for taking of the Depositions of Witnesses upon a suggestion for a Prohibition for every Witness 06 08 He taketh more for his own Fee for the acknowledgment of a Deed 02 00 He taketh also for his own Fee for every Witness to prove a Suggestion 02 00 Counsellour's Fees Are not certain to our knowledge but Counsellours they usually take for their Fee for every cause ordinarily 10 00 If they receive more it is of their Clients free gift and not exacted to our knowledge Sergeants at Law do likewise practise Sergeants in this Court and they take some 10 s. for a Fee some 20 s. or more as their Clients will give them and according to the pains they take but the certainty of their Fee we know not The Fees paid to the Clerk of the Papers now who hath been during all our memories one of the Prothonotaries Clerks and appointed by him and is now exercised by John Hill and John Woodward For the copying of special Pleas for every Clerks of the Papers Sheet 00 04 For making a paper Book either Issue or Demurrer for every Sheet 00 08 Other sums of Money taken by the said Clerk of the Papers For entring in his Book every Record to be read 01 00 For entring in his Book every cause to hear counsell at every time 01 00 For entring every Trial at Bar 01 00 Which have been taken by the now Clerks of the Papers about six years and about fourteen years before by the former Clerks Fees paid all our memories to the Clerk of the Rules being one of the Prothotaries Clerks and is now exercised by Nicholas Pluncket For entring every Rule except general Clerk of the Rules Rules for answer 00 04 For a copy of every Rule 00 04 For every general Rule for answer being in number above three 00 02 Other Sums of money taken by the said Clerk of the Rules which he now disclaimeth For every Rule given in Court with a copy for a Prohibition or Consultation he taketh 1 s. whereas the due is but 8 d. which hath been taken not above five and twenty years 00 08 For every Rule with a copy given in Court the last day of the Term he taketh 1 s. whereas the due is but 8 d. which hath been taken two or three years 00 08 For every copy of every Rule after the continuance day he taketh 8 d. whereas the due is but 4 d. which hath been taken two or three years 4 d. Also such Affidavits as are read in Court he claimeth these two years or thereabouts to have the keeping of them and taketh for copies both of the Plaintiff and Defendant at his own discretion which formerly hath not been The Keeper of the Postea's which is also one of the Prothonotaries Clerks He hath for the receiving making and delivery of every Postea 00 04 The Keeper of the Files of Declarations In times past the Keeper of the Files of The Keeper of the Declarations Declarations for every search did use to take for his pains in the keeping and filing of Declarations for every search after the second Term 4 d. but now by a general consent for the receiving filing pying and shewing the Files to the Filizers and Clerks he is allowed for every Term of every Filizer and Clerk of the Office 2 s. and this hath continued thirty years or thereabouts 02 00 Laurence Coldham one of the Secondaries Secondaries Clerks Clerks for
19. the said Merefield entred an Issue wherein John Brewster was Attorney for the Plaintiff and now living and a Clerk to the now cheif Clerk and one Coxe for the Defendant it was in London Non assumpsit inter Hardman and Hayes Trin. Mich. prox the like Hil. 1658. several Issues one that the said Merefield entred for one Peter Naylor Attorney for the Plaintiff and Clerk then to the then and now cheif Clerk as able and knowing a man in Clerkship as any of his time fit to have made a Secondary of and after the Plea a relicta verificatione signed by the then Secondary Trin. 1659. Roll 12. 13. 14. an Issue and two Indentures Mich. prox Roll. 13. 14. 15. three Indentures entred And now we are come to the times of the happy restauration of his now most Sacred Majesty let us see therefore what hath been the practice lately for these twenty years and upwards last past It appears in Mich. 12. Caroli Secundi Rotulo 19. that an Indenture is there by Stone the Filizer entred Paschae 14. Rotulo 18. Sommers Ann. Car. Secundi Filizer of Middlesex enters a special Imparlance for Thomas Jekill Attorney for the Plaintiff and late Secondary of this Court Paschae 21. another Filizer enters the like Hil. 21. 22. another Indenture Paschae 23. Rotulo 16. Judicium in replevin cum retorn habend averia elongat Cap. in Withernam agard Hil. 25. 26. Rotulis 18. 19. defalt in case Scire facias super Vtlagar and an Indenture Trin. 26. Rotulo 19. Paschae 28. Rotulo 19. Hil. 28. 29. three several Indentures in each Term one Mich. 29. Rotulo 19. Nihil dicit in casu Hil. 29. 30. Rotulo 19. an Issue Paschae 30. Rotulo 18. 19. an Issue defalt Hil. 29. 30. Rotulo 19. an Issue In Paschae 30. Rotulo 18. 19. an Issue and defalt Hilary 30. 31. Rotulis 10. 18. 19. another Indenture nihil dicit non assumpsit Mich. 32. Rotulo 17. breve erroris sur Judicium in regno Hiberniae Judicium affirmetur intrat Rotulis 18. 19. two Indentures Paschae 33. Rotulo 19. another Indenture Trin. 33. Rotulis 18 19. several Issues and Judgments Mich. 33. Rotulis 18. 19. 20. two Indentures and a Distring awarded against a Peer Hil. 33 34. Rotulis 12. 13. 14. 15. 16. several Issues and defalts and Rotulis 17 19. two Indentures Paschae 34. Rotulo 18. an Issue Trin. 34. Rotulis 18 19. an Issue and a defalt and in Mich. 34. Rotulis 18 19. the like and in Hil. 34 35. Rotulis 12. 13. 14. 15. 16. 17. 18 19. the like as to Issues and defalts together also with two Indentures And now I do heartily beg the Reader 's pardon that I have tired his patience with so many particular proofs in this nature and truly I would not have done it but have saved my self and him much labour herein but that it lay upon me to make out this matter In which he may remember there are several Appeals of Murther Robery and Mayhm said to be entred which puts me now also in mind of appealing to him and not to him onely but unto all that shall reade this Treatise whether they think the Filizers of this Court have not had a right to enter Issues and other proceedings grounded upon Original Writs if so when where and how did they loose it was it either by Act of Parliament or by any other due course of Law and he that can tell me this erit mihi magnus Apollo And thus much if not too much I hope may suffice to prove that the Filizers have a right to enter Issues brought by Original Writ and other proceedings thereupon on their own Rolls as Filizers Some directions in the way of practice by Sixthly Original Writ in this Court AND first to proceed either to the arrest or to the Outlawry you may remember it hath been said before that this Court proceeds in its practice three several ways that is to say by Original Writ by Bill and by attachment of Privilege and in that by Writ this Court hath not used to proceed in some sort of Actions that is to say Debt Detinue Account and Covenant but in all other personal Actions it doth And as is elsewhere said The Original Writ issueth out of the High-court of Chancery to obtain which the Attorney for the Plaintiff must first consider the nature of his Clients cause of action and then draw up a precipe as it is commonly called of the whole matter in the nature of a Count or Declaration and therein he must be sure to set forth the Defendants true Christian Name and Sirname together with the Addition both of his Degree and Mystery as to his Profession and the place where conversant for if his Addition be omitted all the Proceedings are void by the Statute of Additions made in primo Henrici Quinti cap. 5. by which it is ordained and established That in every Original Writ of Actions Personals Appeals and Indictments and in which the Exigent shall be awarded in the names of the Defendants in such Writs Original Appeals and Indictments Additions shall be made of their Estate or Degree or Mystery and of the Towns or Hamlets or Places and Counties of the which they were or be or in which they be or were conversant And if by process upon the said Original Writs Appeals or Indictments in the which the said Additions be omitted any Utlagaries be pronounced that they be void frustrate and holden for none And that before the Utlagaries pronounced the said Writs and Indictments shall be abated by the exception of the Party wherein the same the said Additions be omitted Provided always that though the said Writs of Additions Personals be not according to the Records and Deeds by the surplusage of the Additions aforesaid that for that cause they be not abated And that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon pain to be punished and to make a Fine to the King by the Discretion of the Chancellour These are the very words of the Statute So that you see hereby that debile fundamentum fallit opus which ought to be the Attorny's care to prevent and he must also take care to draw up his Precipe so in substance as he will stand to it for after the Original is sealed there is no altering of it without new sealing it again and if it be in Trespass the form is thus Si A. B. fec c. tunc pon C. D. nuper London vel Middlesex de c. gen de placito quare vi armis Clm. Doum si in London Clm. si in Middl. ipsius A. apud c. fregit Et alia enormia ei intulit ad In Tusgr grave dampnum ipsius
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
Machell Vic. Afterwards the Latitat followed as now it is called but then rather styled a Testatum into any other County and I find it differs not at all from the now present Latitat but onely in a few words in the latter part of this Sentence following and although few yet very remarkable Super quo in Cur. nostra coram nobis testat existit quod pred A. B. latitat discurrit in Com. tuo mala quam plurima ibidem perpetrand as may appear by the Files of Latitat's there remaining by which you see that both the Plaint and Precept thereupon do suggest a tort or wrong by a Trespass done to the Plaintiff although possibly that was not the true cause of Action and afterwards suggesting in the Latitat a malefeasance by the Defendant perpetrated in another County and these Plaints and Precepts thereupon were so numerous then and the advantage of receiving and filing of them of so great moment that they have been formerly and are now likewise always excepted out of the grant to the Custos brevium of this Court by the Lord Chief Justice thereof as reserved to himself amongst other things therein excepted in these words except factur Record de Nisi prius in Com. Middlesex Transcript certification super brev errorum reception filation de lez Queriturs attachiament in eadem Cur. conservat Record de Attinct cum Feod ad inde pertinen ' as may appear by several such grants now remaining upon Record in this Court and then always such Bill or Precept went out first into that County of Middlesex where the King was then resident to take the Defendant if he might be found therein to answer the Plaintiff in such Plaint before there went a Testatum into any other County and that which was then really done as to the taking out of such Bill or Precept of Middlesex is now onely suggested in every Latitat So that when former Kings at any time have adjourned the Terms to any remote place in any other County upon any necessitous occasion as the Plague or the like as they have often done there hath always been a Bill or Precept taken out in that County to arrest any Defendant if within that County and if not then one always suggested in any Testatum or Latitat into another County and so it was no doubt when the Term was adjourned to Reading in Berkshire in the first year of the Reign of Charles the First and so it was likewise to my own knowledge when the Term of Saint Michael Anno Dom. 1665. was adjourned by our now Sovereign Lord the King unto Oxford by reason of the great Plague that then was raging both in the Cities of London and Westminster and the Suburbs thereof For then there was a Bill or Precept of Oxford to take any Defendant there Secondly Another reason may be drawn from the constant practice and course of this Court for many years as is elsewhere said to suppose every Defendant that is sued by Bill in this Court to be in Custod Mareschalli of this Court who really is not whereby to intitle the Court to a jurisdiction of the Cause and whereas the proceedings by Original Writ are by Capias Pone or Distring and the like in order to make the Defendant appear before the King in this Court the proceedings by Bill suppose him to have appeared and that he is in actual custody of the Marshall of the Marshalsey of this Court which if every such Defendant so were the now Prison of the said Marshall would not contain them no not if it were ten times as big as it is Thirdly Another reason may be this because sometimes it happens that the Attornies for the Plaintiffs have not had sufficient instructions from their Clients how to draw their Precipes to the Cursitor not knowing the true cause of Action and therefore for want of that have taken out a Latitat de placito transgr upon which the Plaintiff might have declared formerly in any Action untill of late as is before said it was enacted that a Defendant should not be held to bail except the true cause of Action were particularly expressed in the Writ since which time there is inserted in the Latitat not onely ad respondend the Plaintiff de placito transgr but also ac etiam billae ipsius Quer. versus ipsum Def. pro Centum libris de debito secundum consuetud Cur. nostrae coram nobis exhibend Or thus pro non performation promiss assumption ipsius Defenden ad dampnum ipsius Quer. Centum Librar secundum consuetud c. and so to vary in the ac etiam according to the nature of the Action and this being found formerly and also now at this day likewise to be a more easie and quick way to arrest the Defendant because it requires not so full a setting forth of the cause of Action in the Writ of Latitat as in Writ of Capias to arrest by Original it hath gained ground in this Court And as to that other matter how it hath come to pass that some Entries of Issues and other Proceedings have been made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls and this since the practice hath been so much by Bill the reason of it may be this FOR that the Clerks to the former chief Clerks of this Court for many years past have been permitted to practise as Attornies who very anciently as is conceived did not For the Reader is desired to take notice as is elsewhere before said that there are three sorts of Persons that now have privilege allowed them in this Court as Practisers That is to say First The Filizers of this Court styled as before Clerks of our Sovereign Lord the King assigned to inroll Pleas c. that is to say by Original Writ onely they made out all Process thereupon and entred them and all Issues joined thereupon and practised as Attornies as the Presentment hereafter mentioned sets forth Secondly The Clerks of the Office or Clerks to the chief Clerk of our Sovereign Lord the King assigned to enroll Pleas c. that is to say by Bill onely and these Clerks had Seats in the Ancient King's-Bench Office in the Temple which was burnt in the late dreadfull Fire of London The said Office it self was of so great and large an extent and the Seats so many in it that it looked more like a Church than an Office and incited Strangers to offer up their Devotions there when at first they came into it it was as long taking in some small rooms at each end of it which served for the Secondary for the Clerk of the Rules for the Clerk of the Declarations and the Clerk of the Doggets as Westminster Hall is broad which saith Speed in his Chronicle fol. 446. Sect. 31. is 74 foot of Assise with a proportionable breadth containing from end to end four rows of
his Office which have been called the Clerks of the Crown Office which Clerks have always during our memories been Attorneys in the Court of King's-Bench and the Clerks of the King's-Bench have always during our memories been Attorneys in the Crown Office The Fees taken by the Clerk of the Crown and his Clerks during our memories respectively Imprimis FOR every person indicted Clerks of the Crown Office upon any offence as well criminal as others for the plea of Not guilty 02 s. 00 d. And upon information for the like plea 02 00 Whereof to the Master of the Office 01 08 And to the Secondary 00 02 And to the Clerk for entring it 00 02 And for every Venire fac ' upon the plea Not guilty 02 00 Whereof to the Master 01 08 And to the Secondary 00 01 And to the Clerk for making it 00 03 And of every person for the continuance of every matter upon indictment or information after issue joined for every Term 02 00 Item For every inrollment in a Quo Warranto for every Roll 13 04 And as much for the exemplification if the party desire to have it exemplified the same Term that it is entred and if it be exemplified after that Term the Fee belongeth to the Custos Brevium and not to the Clerk of the Crown  And for every Mark received by the Clerk of the Crown the Clerk for entry is allowed and weekly paid his commons 01 00 Item For every traverse which cometh out of the Court of Chancery and is enrolled for every Roll 13 04 Whereof to the Clerk for entry 01 00 Item For every other inrollment of any Patent Grant or otherwise for every Roll 06 08 Whereof to the Clerk for entry 00 06 Item For all special pleas pleaded unto an indictment or information and also of all replications or rejoinders for every Roll 13 04 But this hath not been usually paid by the Roll but according to the length of the plea in paper as near as could be guessed by the same proportion  Item For every special pardon pleaded and allowed for Felony for entry of the Indictment 06 08 And for entry of the plea the pardon the Writ of allowance and the judgment thereupon for every Roll 13 04 Whereof to the Clerk for every Noble 6 d. And for Gloves for the Judges and other Officers of the Court 13 04 All persons of quality use to give Gloves of such value and goodness as they please  Item For the plea of every pardon of course and entry of the pardon 13 04 And for Gloves 13 04 Item For entry of a Writ of errour in Felony 02 00 Whereof to the Clerk for entry 2 d. To the Secondary for examination 2 d. And for entry of the Indictment 06 08 Whereof to the Clerk for entring 6 d. For entring of every errour assign'd 2 s. Whereof to the Clerk and Secondary 00 04 For the Bayl in Court 05 00 To the Marshal and Crier 00 08 To the Writer for making the Bayl 00 04 To the Clerk that is towards the cause 01 08 For the entry of the judgment of reversal of every outlawry or indictment in Felony 06 08 And for Gloves as for the allowance of a special pardon 13 04 Item For the entry of an Indictment upon a Writ of Errour where the Indictment is not Fellony 04 00 Item For the entry of the Writ of Errour Exigent and Return assignment of Errours Reversal and Bayl the Fees are as in the case of Felony  Item For the Clerk's pains in drawing of the Errours according to the length thereof and the labour bestowed therein 3 s. 4 d. or 5 s. c. Item For every Imparlance upon Indictment or other causes except Quo Warranto for every one 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary and Clerk for examination and entry 00 04 To the Attorney towards the cause 02 08 And upon every Imparlance upon a Quo Warranto 06 08 Whereof to the Clerks for entry 00 06 And the Attorney towards the cause hath 06 08 And for the dismission of every person upon Indictment for Felony for insufficiency 06 08 Whereof to the Clerk for entry 00 06 Item For the dismission of every person upon indictment of Riot Forcible entry Trespass and such like 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for drawing the dismission and for entring the Roll 02 00 Item for every fine the party maketh upon an Indictment 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for making the Fine bill 00 04 To the Attorney towards the cause 01 08 Item For the Fine upon an information for the King's part where the Informer hath compounded for his part 11 00 To the Master 09 08 To the Clerk for drawing the Protestation 01 00 The Warrant of Attorney 00 04 Item For the entry of every cognition to any Nusance for High-ways and Bridges and for the Writ of Constar ' fac ' thereupon 09 04 Whereof to the Clerk of the Crown 06 08 For making of the Writ 00 04 For making the Fine bill 00 04 To the Secondary for giving over the Judgment 00 04 To the Clerk towards the cause 01 08 Item For the entring of every Postea which comes from the Judges of Assize and the judgment thereupon 08 00 Whereof to the Clerk for entry 6 d. And the like for every Verdict and Judgment upon any trial at the Bar except special Verdicts which are paid according to the length of every Sheet 00 08 Item For the entry of the submission of every Recusant his plea and judgment thereupon 13 04 Whereof to the Clerk for entry 01 00 Item For every person bound by recognisance for the Peace Good behaviour or Felony who dieth before day of appearance upon which the Sureties plead his death for the Plea drawing and entring the Judgment and the Clerk's Fees 15 04 Whereof to the Clerk for drawing and entring of the plea 04 04 Item The Clerk of the Crown who is the King's Attorney in that Court by Patent hath also upon his confession upon deposition of Witnesses 06 08 Item For every one that is discharged for any debt due to the King for any deodand Felon's goods or the like 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Attorney towards the cause 02 00 And where the Debt is discharged by any Letters Patent or allowance upon a former Quo Warranto 06 08 For exhibiting every information 03 04 Whereof to the Master 02 04 To the Clerk for making the Information and Writ 01 00 Item For an appearance upon information 03 04 Whereof to the Master 02 04 To the Poor 00