Defendant in any Action or Suit is to do is to appear and shew himself in person or by an Attorny in the Court to answer the Action and defend the Suit He may also appear by an Essoin which is an excusation coming from the French word Exoine it doth delay the cause a Court day longer the common Essoin is de male vener and if he do not appear the next Court then it passeth by default Judgment entred and Execution issues out against his Goods and Chattels But after the Defendant hath once appeared in the Court by an Attorny there shall be no Essoin allowed But if he appear neither by an Attorny nor by Essoin then further Processe issues out against his Goods and Chattels viz. The Precept of Duces tecum and attachment and Distresse upon attachment infinite untill he do appear After the Processe executed the next Court the Plaintiff is to appear and file his Declaration to shew his cause of Action or matter of complaint in which must be shewn who complaineth and against whom for what matter how and in what manner the Action grew between the parties and at what time and place the wrong was done and in conclusion he must aver and profer to prove his Suit and shew the damage he hath sustained by the wrong done unto him Speciall care ought to be had that it be drawn in manner and form yet by the Statute of 36 E. 3. cap. 15. A Declaration shall be good if it have matter of substance though the terms he not apt however to avoid doubts and that the Attornies may not depend altogether upon uncertainties let them be diligent in taking right and full instructions from their Clyents and inform themselves of every puntilio which may be materially incident to the case that so they may know what manner of Action is most proper to be brought on the behalf of their Clyents In some cases manner and form is chiefly to be looked at but in other some not altogether so materiall As if an Action of debt be brought of the sale of a Horse for five pounds where the bargain was for two horses the Defendant pleads that he oweth him nothing in manner and form the Jury ought to find for the Defendant for that that the bargaine was for two horses for five pounds fo manner and form there is materiall and parcell of the charge and so it is in every case where the Action varies from the bargain or speciall matter But if an Action of the case be brought by the Husband alone upon an Assumpsit to him by R. the Desendant saith he did not assume in manner and form and the Plaintiff gives in evidence of an Assumpsit made to his wife and his agreement to it afterwards this is good and manner and form is not materiall If an Action be brought before there is any cause of Action the Declaration is insufficient But if a Trespasse was done the fourth day of May and the Plaintiff declareth the same to be done the fifth or the first day of May when no trespasse was committed yet if upon evidence it salleth out that the Trespasse was done before the action brought it sufficeth 19 H. 6. 47. 5 E. 4 5. 21 E. 4. 66. And Littleton saith That the Jury may finde the Defendant guilty at another day then the Plaintiff supposeth for the Law of England respecteth more the effect and substance of the matter then every nicity of forme and circumstance Apices juris non sunt jura Note that in actions of debt upon Emisset for Wares for Money or other things lent upon an In simul computassent actions of Trespasse Battery or upon the case c. you are not tyed to lay the certaine day but you may lay it any time after the cause of action accrued If an action upon the case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. b. r. If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. R. Pasc 24. Car. B. r. A Declaration ought not to shew a thing by implication it must be set forth expressely If the Plaintiff do alter his Declaration after the Defendant hath pleaded to it the Defendant may alter his Plea For by the amendment of it it may be so altered in matter that it may require a different answer from what was sormerly pleaded and in that case if he should not amend his Plea he might be triced sor want of a good Plea Prac. reg fo 235. A Declaration is sometimes called a Count as Count in debt Kitch 281. Count in Trespasse Brit. cap. 26. Count in an Action of Trespasse upon the case for a slander Kitch 251. But a Count is more properly used in Reall than Personall Actions And a Declaration more applyed to Personall than Reall F N. B. 18. a. 60. D. N. 71. a. 191. c. 217. a. If after Processe executed the Plaintiff do not appear and file his Declaration and the Defendant doth appear upon such default the Plaintiff is non-suited and the Defendant may have Judgment and Execution for his costs In every case where the Plaintiff may have costs against the Defendant there if the Plaintiff be non-suit or a Verdict passe against him the Desendant shall have his costs as in Trespasse Debt Covenant by Specialty or upon Contract Detinue Accounts Actions upon the case or upon the Statute for personall wrongs 23 H. 8. cap. 15. Administrators nor Executors shall not pay any costs neither upon Non-suit or Verdict because their Actions are brought upon Debts or Contracts not made between them and the Defendants But if they bring Actions for things done to themselves as for the taking away of goods from them c. and they be Non suit or Verdict passe against them in this case they shall pay costs After the Plaintiff hath appeared and Declaration filed upon the appearance of the Defendant Emparlance is to be entered Emparlance is when the Defendant being to answer the Suit or Action of the Plaintiff desireth some time of respite to advise himself the better what he shall answer being nothing else but a Continuance of a cause till a further day Now to demonstrate what the word Continuance signifieth it is after a Suit is begun and the Plaintiff hath declared he must continue his Suit from Court day to Court day or else the adverse party may take advantage of it and this is called a Continuance being but onely a proroguing of a Suit from time to time to keep it in being And this is by the Act or order of the Court and
County of Y. there held c. the aforesaid I. H. and the rest of the Defendants within named the fifth time exacted were at which day the aforesaid I. H. appeared and rendred himselfe to the prison of his Highness c. of the Castle of Y. whose body before the Iustices within written at the day and place within contained ready I have as within to me is commanded but the rest of the Defendants within named appeared not therefore c. as above And besides I. S. who hath rendred himself to the prison of c. of the Castle of Y. whose body before the Justices within written at the day and place within contained ready I have as this Writ exacteth and requireth And besides I. C. who dead is will not appear therefore by Judgement c. and the aforesaid T. C. waved is in presence of T. C. and F. W. Coronors of c. of the County aforesaid At the County c. 1. 2. 3. 4. exacted he was and hath appeared and rendred himself to the prison of c. of the Castle of Y. where so sick he is that fore fear of death him before the Justices within written at the day and place within contained have I cannot The Return of the Writ of Proclamation BY vertue of this Writ to me directed at my County of Y. held at the castle of Y. within written on Monday c. the year c. within written the first time to be proclaimed I caused And at my County of Y. held at the Castle of Y. aforesaid in the said County of Y. on Monday c. the year c. within written the second time to be proclaimed I caused as also at the general Sessions of the peace held at Skipton for the West riding of the said County within written on Tuesday viz. the 12. day of Sept. aforesaid the year c. within written publickly to be proclaimed I caused that I. C. and all other the Defendants within named themselves to render to the within named Sheriffs of London so that the same Sheriffs have their bodies before the Justices within written at the day and place within contained as this Writ exacteth and requireth The manner of proceeding upon the Writs of Recordare Pone Writ of False Judgment c. in the Common Pleas after removall out of the County Court YOu must repair to the County Clerk or his Deputy and demand a Return of the Writ of Recordare or Pone If upon the return the Defendant appear then must you declare and when your Declaration is drawn enter it upon a roll in one of the Prothonotaries offices and see that it be docqueted together with the number of the roll If the Writ be returnable in the begining of a term especially in issuable terms the Desendant is to answer the same term unless the Desendant hath Emparlance to plead until the following term Rules to answer must be entred in the Remembrance in the Prothonotaries Office entring in the Margent or over the head of the Rule that if the Defendant do not plead within some few dayes let Judgement be entred And if no plea be brought in within the time then may you sign Judgement with the Prothonotary in default of answer If the Defendant appear not upon the return of the Writ then may the Plaintiff have a Procedendo to carry the cause back again into the County Court If the Plaintiffs Attorney declare not against the Desendant upon his appearance within a reasonable time of the Term then may the Defendants Attorney enter a Rule in the Bill of Pleas against the Plaintiff to declare and if he declare not then may he enter a Non prosec and sign it with the Prothonotary and costs given for the unjust vexation If the Defendant plead generall issue then must the Attorney for the Defendant set his hand to the Doquet book of the Plaintiffs Attorney who draws up the plea and makes a Copy of the issue and delivers it to the Defendants Attorney and then they usually give notice of triall If the Defendant plead specially he is to bring it to the Plaintiffs Attorney under a Serjeants hand and if the Plaintiff reply specially it must likewise be under the Serjeants hand the like upon a Demurrer to a Declaration and Rejoynder in Demurrer If your triall be by Nisi prius at the Assizes in the Countrey and the Jury appeare not full upon the Pannel then may you require a Decem tales de circumstantibus viz. ten of the standers by to fill up the Jury or more or lesse as is requisite which Tales must be mentioned upon the return of the Postea and the Judgment upon it in the Issue Roll. Having entred your Declaration with the Issue joyned in the Prothonotaries Office then make out a Venire facias upon your Issue and get signed with the Prothonotary and seal it then get it returned by the Sheriff of the County where the action is laid and upon the return of it sue forth an Habeas corpora and deliver the same to the Sheriff to summon the Jury and get it returned before the Assizes In suing forth your Nisi prius ingrosse your Record according to the copy of the Issue made up and the entry of it upon the Roll in the Prothonotaries Office and examine it if it be upon an Issue joyned the same Term whose hand must be to it then carry the same to the Clerk of the Treasury to signe and make up the Record If the Issue was entred of a Term past then must you deliver the paper Book of the Issue to the Clerk of the Treasury to examine the same by the Roll and to make up the Record which must be signed by him then must it be sealed with the Lord chief Iustice of the Court and then deliver it together with the Hab Corp Iur. returned by the Sheriff to the Clark of the Ass for that County where it is to be tried paying the Judges Then retain Councel and have your witnesses ready for the trial The triall being had and verdict passing for your Client the next Term you are to call of the Clerk of the Assizes for a return of the Postea and thereupon the Prothonotor will assesse costs and cause Judgement to be entred upon which you may have Execution by Capias ad satisfaciendum Fieri facias or Elegit c. according as you desire and as the nature of the action brought doth allow or require Note that a Capias ad satisfac is only against the body who must be imprisoned until satisfaction be made and if the Defendant cannot be found the Plaintiff cannot have another Execution 20 E. 2. for he may chufe at the first whether he will have a Capias or an Elegit but if he take the Capias he shall not have the Elegit afterwards nec è converso 15. H. 7. 15. The Writ of Fieri
is aliorum negotiorum gestor for qui per alium facit per seipsum facere videtar likewise these Statutes following do institute Attorneys in the County Court viz. 6 E. 1. cap. 8. 20 H. 3. cap. 10. c. F. N. B. 156. I could instance many more but I hope these are sufficient to stop the black mouth of a scurrilous Antagonist In their practice they ought to be honest and just according to their office and oath not exciting men to Suits especially such as are forrain and illegall nor for little offences and small debts nor voluntarily argenti gratia delay their Clyents nor demand any sums of mony for the prosecution of the Action otherwise then is allowed by the Court. Of Bayliffs A Bayliff is a Servant or Minister of the Law and by consequence a Servant to the party at whose Suit he is to distraine the goods of any one Therefore he ought to be true faithfull and vigilant in levying of Distresses he ought not to be exoculated with common rurall bribes as too many of them are His office is thus described by Fleta Balivus esse debet in verbo verax in opere diligens fidelis ac pro diserto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat Et qui sit ita justus quod ob vindictam seu cupiditatem non querat versus aliquos c. He is to be contented with his wages and fees allowed him which are certain and known and as I have described particularly being usually paid if he take more then he ought or commit any error in the Execution of his Office contrary to the tenure of his Precept then is he to forfeit forty shillings and to be convicted thereof by the examinations of the Justices of Peace or any of them 14 E. 3. cap. 9. And the Sheriff ought not by his oath to have any Bayliff but such as he will answer for and such as be true and sufficient men in the County and make each Bayliff take an oath for the true execution of his office but such things are now not taken notice of And by the Statute of 27 Eliz. cap. no Bayliff or other person ought to take a Distresse nor to execute any Processe untill he be sworn but now common experience and practice at this day bears testimony to the contrary Alfred once King of England hanged Judge Arnold for saving a Bayliff from death who had robbed the people by Distresse and for extorting of Fees If the like Law were executed upon some of our grand Malefactors it would make the Remainder more honest What Actions may be brought in this Court HAving precipitated my self thus far before I enter upon the Proceedings of the Court I will demonstrate the grounds and cause of Proceedings and that is Actions which is the form of a Suit given by Law to recover a mans right or actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur Therefore what Actions will hold in this Court take as followes All Actions of debt either upon an account made by the parties for wages after a hire sums of mony owing or due from one man to another whether by writings or otherwise it is grounded sometimes by writing as an Obligation Bill Covenant or other especialty sometimes without writing as an Arbitrament Rent mony lent Parol Contracts or the like All Actions of Detinue Trover and Conversion deceit upon a Warranty a Delivery Nusance Case for scandalous words case upon Assumpsits and other Actions of the case as for a Dog killing Cattell abusing a Distresse spoyling my Goods c. Actions of Trespass Assault and Battery c. All these Actions would afford very much matter to treat of at large but least this Treatise should swell beyond its limits I will refer you to the reading Fitzherberts Natura brevium which doth learnedly treat of the nature of all Actions that lye in any Court of Judicature Within what time Actions must be brought ALL Actions of debt grounded upon any lending or contract as Book-debt without especialty and for Rents in arrear all Actions of Trespasse quare clausum fregit Actions of Trespasse Trover Detinue and Replevin for taking away Goods and Chattels Actions of account all Actions of the case except Actions for Slander which shall be sued must be commenced and brought within six years after the cause of such Action or Suit accrued if the Plaintiff be then of full age discovert compos mentis at Liberty out of Prison and in England otherwise within such time after he becomes so and not after All Actions of Trespasse for Assault Menace Battery wounding and imprisonment within four years after the cause of Action and not after All Actions of the case for scandalous words within two years next after the words spoken and not after Who may bring Actions and who not IDiots mad men or such as have lucida intervalla such as are deaf and dumbe or any other man woman or child except persons disabled by Law being wronged may bring the proper Action appointed for remedy in that case and all or any of these wronging others may be sued And if an Idiot sue or be sued he must doe it in person An Infant must sue by Prochein amy and being sued must defend by Guardian A Feme covert cannot sue but with her Husband An outlawed person is disabled to sue any Action against any man in any Court of Law or Equity yet as Executor he may sue because it is not in his own right but in trust for another but any man may sue him by Coo. Sup. Litt. 128. A man that is attainted in a Praemunire may not sue in any Action Idem 129. And a man that is a convict recusant is disabled so long as he so continues No Barretor can maintain any Action in this Court nor have Judgment unlesse it be required by all the Suitors West 1. cap. 3. But note all these disabilities remain during the continuation of the same impediment Of Pledges in this Court PLedges are absolute except it be for Forrainers or such as live out of the County or out of the Jurisdiction of the Court or such as are unmarried that have no goods distrainable and it is if these be Plaintiffs but if the Defendant should non-suit the Plaintiff and have Judgment against the Plaintiff and his Pledges I never yet saw the forme of the Judiciall Precept that ever issued out to levy the costs upon the Pledges goods Of the Proceedings in the Court BEcause I would not have the Country and young Practisers ignorant of the Proceedings in the Court which is the life of practice I thought it necessary to make an Abridgment of the terms of Law now used in the Proceedings And first of Appearance because it is the first thing done after goods attached The first thing the
facias is onely against the goods as Leases for years or moveable goods as Corn Houshold stuffe Cattle Apparrel Money Plate c. and it ought to be sued out within the year after the Judgement Co. 3. 13. After a Fi. fa. a man may have an Elegit but on the contrary after the Elegit he cannot have a Fi. fa. because the Elegit is of a higher nature then the Fieri facias An Elegit is a Writ whereby the Plaintiff is to have Execution of the half of all the Defendants lands and chattels except Oxen and beasts of the Plough till the debt and damages be wholly levied and paid to him and during the term he is tenant by Elegit Terms of the Law The Proceedings upon the Writ of False Judgement YOu must call of the County Clerk for a return of the Writ together with the whole Record of all the proceedings from the original and beginning of the cause in the County Court The Writ being returned you must assign Errors and take Copies thereof and thereupon sue forth a Scire facias to the Plaintiff in the Action to hear Errors To which the Plaintiff may appear and plead the common plea which is that The action nor proceedings in the County Court are in nothing erroneous Then must the Desendant endeavor to get a Rule or day given for the arguing of the same Errors But if the Defendant doth delay and doth not call for a return of the writ nor proceed then the Plaintiff may sue forth another Scire facias against the Defendant to shew cause why he should not have Execution upon the Judgement had in the County Court And if at the Return of the second Scire Facias Errors be not assigned then Judgment is confirmed in that Court into which the Writ is returnable If Errors be found and allowed to be sufficient and good then is the said Judgment to be reversed and made void But if Errors be not found good then is the Judgment in the County Court affirmed and further costs for delay of Execution allowed to the Plaintiff who may presently sue forth Execution out of that Court into which the Writ was returned against the Defendant Note that if the Judgment be reversed and made void yet notwithstanding it takes not away the Plaintiffs cause of action for he may commence a new action against the Desendant for the same cause The same proceedings are upon an Accedeas ad Curiam See the Record upon it The manner and form of drawing up Records upon a Writ of False Judgment and Accedeas ad Curiam THe Sheriff is commanded that if A. B. shall secure the same Sheriff to prosecute his plaint then in his full County he cause to be recorded the plaint which was in the same County by writ of his Highnesse the Lord Protector c. between W. B. and the same A. B. in a certain Trespasse upon the case to the same W. B. by the same A. B. done c. And whereupon the same A. B. did complain that False Judgment was done to him in the same County and that he should have here at this day that is to say Octab. pur under his Seal and by four lawfull Knights of the same County who should be present at the Record and that he should have here the Summoners the names of the four Knights this Writ and another Writ And now here at this day came aswell the same A. B. by Simon Dunn his Attorney as the said W. B. summoned c. by Phit Prince his Attorney And the Sheriff to wit Geo. Mar. Esquire now returneth that the same A. B. had found to the same Sheriff Pledges to prosecute his said Writ to wit Iohn Doo and Ric Roo And that he by vertue of that Writ to him directed at his County held at the Castle of York in the County asoresaid the 10. day of May in the year of our Lord 1657. made the same plaint to be recorded which was in the same County between the same A. B. and W. B. and the Record of the same plaint before the Justices here at this day under his seal and the seals of H. M. and four lawfull Knights of the same County hath ready of those who were present at the Record And that he summoned the same W. B. that he should be here at this day to hear the Record by R. S. and F. L. as by the same Writ to him it was commanded c. which said Record followeth in these words OLIVER Lord Protector c. To the Sheriff of York greeting W. B. hath requested that A. B. of C. in your County husbandman although the same W. B. be our true and faithfull subject and as our true and faithfull subject from the time of his nativity hitherto hath carried and behaved himselfe and of good name and same among many of our saithfull subjects was noted called and reputed notwithstanding the same A. B. not ignorant of the premisses the same W. B. unjustly to vex and him of his goods name fame and opinion whereof from his nativity to deprive conspurgate And the same W. B. into perturbation vexation and infamy amongst his neighbours and many other saithfull subjects and people of this Commonwealth to induce plain salse and scandalous words of the same W. B. at C. in the presence of many faithfull subjects and people of this Commonwealth said published and pronounced in these English words following to wit W. B. the same W. B. meaning hath stoln my horse By speaking publishing and pronouncing which same words the same W. B. not only in his good name and same is hurt but also in his doings and businesses with honest persons with whom the same W. B. in buying selling and lawfull bargaining before used is much prejudiced and made worse to the no little damage and losse of the same W. B. c. And therefore we command you that you hear the said Plaint and afterwards cause the same to be with-drawn that we hear no more clamour thereof for defect of Justice Witnesse c. Pleas held at the Castle of York in the County of York upon Monday the second day of June in the year of our Lord 1657. AT this Court W. B. complaineth of A. B. in a plea of Trespasse upon the case W. B. by P. P. his Attorney complaineth of A. B. in a plea of Trespasse upon the case for that to wit that whereas the same W. B. is a good true and faithfull subject of this Common-wealth of England from the time of his nativity hitherto hath carried and behaved himself and of good name same credit and reputation honestly with good and grave men as well his neighbours as other saithfull subjects of the said Cōmonwealth was had noted called and reputed without any falshood thest perjury selony deceit or stain of any other fault or hurtfull crime unspotted and untouched by the whole time aforesaid carried
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
Action brought For it was alleaged although a reprisall by fresh suit if it had been before the action brought would peradventure have excused him yet being after the Action brought so as the Plaintif at the time of the Action brought had good cause to have the Action the Reprisall after shall not excuse him and compared it to waste brought for Reparations which is amended pendant the Writ it shall not excuse him So here And in proof thereof were cited Coo. 3. fol. 52. Ridgeleyes case 23 E. 4. 8. 13 Edw. 3. tit Barr. 253. But against this it was argued That this reprisall being alleaged to be by fresh suite and before the plea pleaded is good for the time and he shall take advantage thereof to excuse the Escape For it is upon the matter no escape when shee was re-taken by fresh suit for that is a continuall pursuit and the Law shall adjuge her in prison always And it is not like the case of Waste For there nothing was done after the Waste committed before the Action and the Reparation hath not any relation nor is the continuance of any former Act but this Reprisall hath relation and makes it no escape ab initio As a Distresse taken for Rent and rescued and driven into another Mannor which is pursued and re-taken the party shall make his Avowry of the taking in the first place So here And it would otherwise be a great mischiese if an Escape should be against the wills of Sheriffs or keepers of Prisons by breach of prison or rescuing themselves before they be brought to prison or in their going thither and the prisoners be reprised within two or three dayes That an Action should be brought in the Interim against the Gaoler and that this Reprisall when he hath the prisoner before the plea should not be an excuse especially to the Marshall who hath multitude of prisoners and every day is to bring them unto the Hall by Habeas Corpus or Rules of Court If peradventure a Prisoner escapes and an Action be brought against the Marshall the same day before he can have any time to retake him If he should not be excused by the re-taking hee would be charged with a multitude of suits and could not have any remedy to excuse him And therefore it was compared to the pleading of a Fine levyed before the VVrit of Formedon and Proclamations incurred pendant the VVrit before the plea pleaded he well may take advantage thereof by pleading it although when the Writ was brought it was not compleat nor could be pleaded Vide 6 H. 7. 12. Secondly it was moved admitting this to be no plea yet the Action lyes not here because the Escape is of a Feme Covert where her Baron is subject to the Execution So the Plaintiffe hath not lost his debt for by intendment she might not have payd it if shee had layne in prison For shee had nothing but what was her Husbands and the Execution remaines yet against him Therefore Action of Debt lyes not because he is not totally deprived of his Debt but an Action upon the Case in respect of the damage And therefore it was said If one have Execution of a Statute of the Lands Goods and Body c. and the prisoner escapes Yet because the Lands remaine in Execution debt lyes not for the Escape but an Action upon the Case For at the Common Law an Action of Debt was not maintainable for an Escape but it is given by the Statute of 1 Richard 2. where the Debtor escapes But here the sole and principall Debtor did not escape for the Baron is the Principall and remained subject to the Execution vide 33 H. 6. 47. N. Br. 93. Regist fo 98. 4 H. 6. 6. Wherefore c. But the Court held that it was not any plea because the Action is brought and implyes a voluntary permission ire ad largum which is neither denyed or traversed And if the Sheriffe voluntarily lets a prisoner at large he cannot re-take him And so this Reprisall as is alleaged being after the Action brought is to no purpose nor is any plea. And for the Action of Debt they held that it well enough lyes or an Action upon the Case at his pleasure Because the Feme was onely committed to prison and not the Baron And shee is the sole Debtor who is imprisoned wherefore it was adjudged for the Plaintiff But note in as much as Escapes are so penall to Sheriffes Bayliffs of Liberties and Gaolers the reverend Judges of the Law have alwayes made a favourable construction as much as the Law will permit in favour of the Sheriffes Bayliffs of Liberties and Gaolers who are Officers and Ministers of Justice Co. 3. 44. Of Bayle what it is And where the Sheriffe may take Bayle and where not BAILE or Ballium is a safe keeping or protection and thereupon we say when a man upon surety is delivered out of prison traditur in ballium hee is delivered into bayle viz. Into their safe keeping or protection from prison before that he hath satisfied the Law it hath its originall or derivation from the French word Bailler and that also cometh from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifie to deliver into hand For he that is bayled is taken out of a Prison and delivered into the hands of his Friends who are his Sureties for his appearance at a certaine day to answer and be justified by the Law Sheriffs Under-sheriffs or other persons making any warrant for the summons arresting or attaching any person to appeare in any Court not having the originall Processe or Writ to warrant it upon examination and proofe thereof before the Judges of Assize or Judges of the Court c. such offender and their procurers shall be committed to the Goale there to remaine without baile untill they have paid amongst them 10 l. to the party grieved and his costs and damages as also 20 l. to the Protector 43 Eliz. c. 6. Such persons as are in Execution upon any Statute or Recognisance or upon judgement given in the Kings Court at the suit of any person they shall not be bailed until they have agreed with the Plaintiff 1 R. 2. c. 12. 23 H. 6. c. 10. F. N. B. 9. 121. a. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the Plaintiff 1 R. 2. c. 12. 2 H. 5. cap. 2. F. N. B. 121. a. If the Sheriffe doe let to baile any persons prohibited by the Stat. of Westm 1. cap. 15. to be bailed he shall be punished by the Justices of Goal-delivery according to the forme of the same Statute or the Justices may fine them as for an escape punishable at the Common Law 25 E. 3. 39. The Sheriff might at the Common Law have bailed a suspect of felony
to the prescription this shall be good by way of confirmation As a Court-Baron is incident to a Mannor so a Court of Pypowders is incident to a Fare and by the Grant of the Fare this doth passe and with this accords 19 H. 8. Brooks case fol. 2. placito 7. and Brook tit incidents placito 34. and not to be fevered from them neither by grant nor by reservation 2 3 Phil. and Mar. Dyer fol. 133 pla 80. the Plaintiffe in a Court of Pypowder doth count of a contract made in the last Fare before where no plaint was then begun nor any judgment of Amerciament of the Defendant then given and this was held a good Error in both by all the Justices of both Benches Mich. 42. and 43 Eliz. B. R. Co. 10 fo 73. in the case of the Marshalsea where Hall braught a Writ of Error against Jones to reverse a Judgment given against him in the Court of Pypowders of the Market in the City of Glocester for that that Hall had published slanderous words of him viz. Mr. Jones and his Clerk have by colour of his office extorted and gotten 300 l. per annum by unlawfull meanes for many years together above their ordinary fees for proving of Testaments and granting of Administrations the which judgement was reversed for two Errors viz. 1. Because words did not concern any matter touching the Market and therefore the Court had no jurisdiction of it but if one slander any with Trades and Merchandizeth in the Market in any thing which concernes his Trade there an action for this well lieth 2. It appeares in the Count that the words were spoken before the Market and not during the time of the Market for as this Court hath no jurisdiction but in matters concerning the Market so the same Court hath no jurisdiction for matters concerning the Market unlesse they were acted and done during the time of the Market Bracton lib. 5. fo 335. a. De brevi de recto 1. de diversitate divisione summonitionis It is there said per quindecim dies ante diem quo comparere debeat summonitio ought to be Et talis summonitio dici debeat legitima Si minus spatium contineat possit illigitimam judicari nisi ob causam legitimam minus tempus statuatur ut propter personas qui celerem habere debeant justitiam sicut sunt Mercatores quibus exhibetur justitia Pepoudrous by the Statute of 17 E. 4. capite 2. And in this Court no Steward or other Minister shall hold plea upon any action at the suit of any person unlesse the Plaintiffe or his Attorney in presence of the Defendant do sweare that the contract in the Declaration c. was had and made during the time of the Fare and within the jurisdiction of the Fare but this oath so taken shall not conclude the Defendant for pleading in abatement of the action and to the jurisdiction of the Court this by the Statute of 1 R. 3. cap. 6. is made perpetual in this principal case here the Defendant in the Court at Rochester was condemned in an action of debt for 300 l. upon a Bond and Contract formerly made and entered into and for this cause the judgment was erroneous Note that in this Court the Steward is Judge because there are no Suitors there neither can the Steward delegate a Deputy 6 E. 4. fol. 3. 7 E. 4. fol. 23. A TABLE OF THE PRINCIPALL MATTERS contained in the BOOKE A A Merciament in the County Court 6 How they are forfeited in Court-Leet and what shall be causes to amerce c. 313 Of Amerciament 314 Attorneys in the County Court 10 how qualified 11 Actions within what time they must be brought 12 Who may bring Actions and who not 13 Appearance what it is 14 Answer what 17 Accompts of the Sheriff with a particular of some usual charges or fees paid by him at the rendring of them up 224 225 Appeals 295 The Sheriff shal have Counter-rolls of Appeals c. 297 Accessaries who 326 Alehouse keepers 332 Assize of bread 333 B BAyliffs in the County Court 11 how qualified ibid. Burglary what 324 Bond taken by the Sheriffe upon a Fieri facias for the payment of money in Court not within the Stat. of 9 E. 4. 50. 185 Burning of houses or Barns 326 Bail what it is 212 Any person making a warrant c. without original processe upon examination c. shall be committed without bail 214 Such as are in Execution c. not to be bailed ibid. None to be bailed that are prohibited by the Statute of West 1. cap. 15. he cannot bail any suspect of felony as formerly ibid. The Sheriff cannot refuse to baile one bailable upon tender of sufficient sureties ibid. Traytors or Felons not bailable 215 In the Vpper Bench the baile not chargeable till default assigned in the principal c. ibid. The new rules concerning speciall bail ibid. and 216 Bridges decayes 328 Boundaries 330 Bloodshed 331 Barretors ibid. Brewers 333 Butchers 334 Breaking of Pownds 338 Beadel why so called 347 Bastard may not inherit 351 C COunty Court when instituted 3 Now the Sheriffs Court ibid. By whom first exercised ibid. What action may be brought in it 4 5 6 12 The time when it is to be holden 5 Where it is to be kept 6 What actions will not lie in it ibid. Proceedings in it 14 The manner of keeping the Court 23 24 25 Processe of the Court Original 37 Judicial 43 County Clerk how to be qualified 7 He cannot practise as an Attorney 8 Can act nothing without the Suitors 9 His care in deputing Bailiffs 9 How he must enter plaints ibid. How he is punishable ibid. Count what it is 16 Continuance what 17 Challenge of Jurors What are good causes 21 Capias ad satisfac where it lies 71 174 Cap. lies not after an Elegit and Why 179 Note where it lies after an Elegit 178 What it is 179 One taken upon it must be kept in salva arcta custodia ibid. This Writ lies where a Capias lies in the originall ibid. Nothing but the body can be taken by this Writ 180 A man in the custody of the Sheriffe and a second writ is delivered to him he shall be in his custody upon it although not actually arrested ibid. Two bound in an obligation joyntly and severally both may be sued and taken in Execution ibid. This Writ lies not for damages in a Writ of Dower ibid. No return is required upon it ibid. Capias pro Fine what it is 181 An Elegit sued after one is taken for the Protectors fine he shall go at large ibid. No one taken upon it in trespasse c. ibid. Capias ut legatum what it is and where it lies 181 182 Capias ut legat inquiras de bonis catallis What it is 182 Capias ad valentiam what it is and Where it lies ibid. Coroners
its Originall or Prototype Quia origo rerum attendendaâ— And first of the Shire Shire is a Saxon word scyra and hath its etymology from shiran id est partiri to divide as Mr. Lambert saith in his explication of Saxon words Verb. Centur. And Mr. Cambden in his Britania reporteth that Alfred a Saxon King of England was the first that divided this Common wealth into Shires those Shires into Ridings and those Ridings into Weapentakes or Hundreds c. Likewise as Sir Henry Spelman in his Glossarie saith Sunt qui Comitatum distinct ones sub Berengariis Othonibus vel sub Carolo magno apud exteros accidisse opinautur quod de plurimis forte verum fuerit nounullae autem antiquius deprehenduntur Rem apud nos perspicuam facit Ingulphus si sane fides Rex Alfridus alias Aluredus Aethelfridus qui regnum iniit Anne 871 totius inquit Angliae pagos provincias in Comitatus primus omnium commutavit Comitatus in centurias hundredas in decennas id est tithingas divisit Which strenous authorities are sufficiently valid to prove the originall of Shires and their divisions The Republick being thus disunited or dissected into Shires every Shire is intirely governed by one Officer called a Sheriffe or Shire-reeve Vicecomes compounded of these two Saxon words scyr viz. Satrapia a Shire and reue viz. Praefectus a Governour of the Shire Mr. Cambden thus describes his Office Singulis vero annis nobilis aliquis ex incolis proficitur quem Vicecomitem quasi vicarium comitis nostra lingua Sheriff viz. Comitatus praepositum vocamus qui etiam comitatus vel provinciae Quaestor recte dici potest But in Seldeni Jani fol. 53. 54. you have two Governours of the Shire assigned where he saith Praefectus provinciarum qui antea vice-domini ad Ingulphum reversus est Aluredum in duo officia divisit 1. in Judices quos nunc justiciarios vocamus in Vicecomites qui ad huc idem nomen retinent Facessat ergo Polidoras urbinas qui primos a Normanno petit Vicecomites which we now call Vicount a Vice-comite which cometh from our Conquerors the Normans as Sheriffe from our Ancestors the Saxons Also Sir Henry Spelman in his Glossarie saith Quinem autem tunc essent magistratus quos Ingulphus hic vocat Justiciarios Vicecomites non plà ne assequor Reor Aldermanni provinciarum Grevii Saxonice Ealdormen gerefas De Grevii saith he tamen munere nec habeo definitum discrepare enim videtur a Vicecomite quod hic tum adhuc comitis esset vicarius ille regis officialis unde in Anglo-Saxonum legibus atque ipsius Aluredi Cyninger gereþan id est Grevius regis vel ut Latine saeâ—ius reditur Praepositus regis appellatus est And that he is Governour of the County the words of his Patent import as much viz. Commissimus tibi custodiam comitatus So that he is an Officer of great antiquity trust and authority having formerly from the King as now from his Highnesse the Lord Protector the custody tuition and command of the whole County Co. l. 4. 33. Mittons case The aforesayd Alfred at the division of the Kingdome into Shires or Counties instituted this Court called the County Court and established Jurisdiction in it granting power and authority to the Sheriffe to heare and determine such matters as by just cause of appellation either for Law or Equity should be brought unto him This Court as it is recorded by Mr. Selden in his Treatise of Tythes was joyntly exercised by the Bishop of the Diocesse and by the Sheriffe or Alderman of the sciregemot or Hundred or County Court where the one sate to give Godes fight the other for puruldre right that is the one to judge according to the Lawes of the Kingdome the other to direct according to Divinity And Sir Henry Spelman in his Glossary saith Comitatum simul regebant pariterque in foro considentes judicia publica exercebant hic secundum jus humanum ille vero divinum LL. Canuti MS. ca. 44. Habeatur ter in anno Burgesmotus i. Civitatis conventus Schiresmotus i. pagi vel comitatus conventus bis nisi Saepius opus sit intersit Episcopus Aldermannus doceat ibi Dei rectum seculi uterque scil Pro suo munere Idem Ladgari LL. ca. 5. sed pro Aldermannus illic comes extat ut supra demonstravimus utrumque recte Nam in comitatu simus considisse reor Comittem relpub partes tueretur Episcopum qui Ecclesiae Aldermannum qui Legem diceret exponeret But at the Norman Conquest this kinde of holding Ecclesiasticall Pleas in the Hundred of County Court was taken away as may appeare by this Mandate of William the Conqueror recorded in Seld. Jani lib. 2. fol. 76. Willielmus Dei gratia Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis Anglis qui in Episcopatu Remigii terras habent salutem Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum sanctorum Canonum praecepta usque ad mea tempora in regno Anglorum fuerunt communi consilio Archiep. meorum caeterorum Episcoporum Abatum omnium principum Regni mei emendandas judicavi Propterea mando regia authoritate praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in hundredo placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum hundredum sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat All actions whatsoever were brought in this Court before the Sheriff as it is reported by Mr. Lambert in his Archeion in that particle of the Lawes of Edgar to our matter in hand Viz. Let no man seeke to the King in matter of variance unlesse he cannot finde right at home But if it be too heavy for him then let him seeke to the King to have it lightned The very like whereof in effect is to be seene in the Lawes of Canutus the Dane sometimes King of this Realme out of which Lawes may be collected foure things First That every man had meanes and was authorized to sue and commence their Actions in this Court in their owne Shire or County Secondly That no man ought to sue out of the County or to remove or draw his plea from thence without good cause both which things do plainely appear in the letter of this Law Thirdly That the King himself had a high Court of Justice wherein it seemeth that he sate in person as these words do demonstrate Let him not seek to
the King c. And lastly That the same Court of the Kings did judge not onely according to meer right and Law but also after equity and good conscience And after this order and in these two Courts was all Justice administred This Court continuing untill the time of William the Conqueror and ever since during the times and raignes of the ancient Kings and doth yet continue in manner the same forme and substance that it then was and will doe in despite of those Sycophants that have had their Primum mobile from it and now endeavour its subversion that Viperous brood of Birds that have so much defiled their owne Nest that the whole Countrey laughs at their folly and that the pleas ought no more to be taken from it now in our dayes without cause than they ought then to have been which may evidently be proved by those ancient Writs of Pone Recordare Writ of false Judgment and Accedeas ad curiam which are yet in use to this day and to this onely end to remove suits upon cause out of this Court into superior Courts But because this requireth great search of Records to make any further progression whereunto I have no accesse I must leave it to such whose abilities are more strenuous to travell in that so intricate a path This Court is no Court of Record but onely a Court Baron though it had in ancient times the cognition of great matters as may appear by Glanvile lib. 1. cap. 23. 4. by Bracton and Britton in diverse places and by Fleta lib. 2. cap. 62. but it was abridged by the Statute of Magna Charta cap. 17. and much more by 1 E. 4. cap. unico therefore pleas holden in this Court by Plaint nor pleas holden by Writ of Justicies are not taken as matters of Record for those pleas are holden by reason of the Court which the Sheriff holdeth by reason of his Office This Court as Dalton reporteth in his Office of Sheriffs was ordained for the Sheriff to hold Pleas there for particular or private matters under forty shillings between party and party It is now as it was alwaies holden once every moneth upon a day certaine the moneth being computed according to twenty eight dayes in the moneth and not according to the Kallander 9 H 3. c. 35. 2 E. 6. c 25. It holdeth no plea of debt or damages to the value of forty shillings or above because a Fine is due thereby to the Lord Protector yet if the debt be forty shillings or above and the Plaintiff will acknowledge in his Declaration the receit of so much as to bring it within forty shillings in this case the plaint is good But if the debt be above forty shillings as five pounds the Plaintiff cannot divide this into five severall actions to make this Court hold plea of it for in this case the Defendant may wage his Law And of Debt Detinue Trespasse and other actions personall above forty shillings the Sheriff may hold plea by force of a Writ of Justicies to him directed for that is in nature of a Commission to him and is not returnable Neither doth this Writ alter the nature of the Court for therein the Sheriff is not Judge but the Freeholders or Suitors yet all Judgments shall be pronounced by the Sheriff This Court may be kept at any place within the County at the pleasure of the Sheriff but not out of it Yet the Sheriff of Northumberland by the Statute is to keep his County Court in the Towne or Castle of Alnewicke and in no other place The Sheriff of Sussex by the Statute is to hold his County Court one time at Chester and the other time at the Burrough of Lewes and so to be kept alternis vicibus for ever And also the Sheriff of the County of Chester is to keep his County Court in the Shire Hall of the sayd County Daltons Office of Sheriffs fol. 157. 158. To this Court all persons dwelling within the County owe suit by reason of their resiance No Fine can be imposed in this Court upon any offendor because it is no Court of Record Co. 8. 41. 60. 11. 43. Fitz. 73. d. But a man may be amerced for a contempt or a disturbance of the Court in the presence of the Court. This Court will entertaine no suits for Charters of Land or for Inheritance or for Freehold of Land or any titles of Land or to make severall plaints upon one entire debt by Bond or Trespasse Vi armis or actions touching life nor actions to compell one to render an account The Office of the County Clarke THe Sheriff being elected which is done yearly in the morrow after All soules in the Exchequer Chamber by the Statutes 9. E. 2. 14 E. 3. cap. 7. And his Letters Patents do commonly beare date the sixth day of November 1 2 E. 4. e. 1. unlesse it be in cases of necessity that the Court is sorced to adjourne it Crook fol. 595. before the next County day after his election and discharge of the old Sheriff he ought to be very diligent in deputing and constituting a County Clarke such a one as is sufficient and able to keep the Court that no corrupt dealing be in it as he will answer the contrary and that he be very skilfull in entring the proceedings in it He ought to be endued with these qualities according to the description of Fleta Provideat sibi Vice com' de Clerico circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio Commit ' Cleric ' se cognoscat jura in omnibus teneri affectei quique sub-balivos in suis erroribus ambiguis sciat instruere docere c. Which is thus Paraphrased That a County Clarke ought to be endued and qualified with circumspection fidelity providence humility peace and modesty and must know himselfe or be expert in the Lawes and customes of the Countrey and to have ability to instruct or direct the Bailiffs or other Ministers in dubious things wherein they may erre He must neither be attracted by price nor lucratory corruption nor any sinister affection to wander out of the way of right Qui nec as Bracton adviseth ad dextram nec ad sinistram vel propter prosperitatem terrenam vel adversitatis metum à tramite justiciae declinet The Sheriff and not the Protector hath power to delegate this Office to whom he pleaseth as it appears in Myttons case in the fourth Reports where Queen Elizabeth by Letters Patents did grant the Office of Clarkship of the County Court of Somerset to Mytton with all Fees c. for life Arthur Hopton Esquire Sheriff of the same Shire interrupted him because it was incident to his Office Mitton complained to the Lords of the Councell and was referred to the two chiefe
be put in an open Pound and they die it is the losse of the Owner but if they be put in another place it is otherwise 39 H. 8. Fitz. Distresse 6. He that distrains Beasts may put them in a close House if he will give them meat for the putting of them into an open Pound is but to the intent that the Owner may give them meat 1 2. Phil. Mar. cap. 12. tit Distresse That no Distresse shall be taken out of the Hundred unlesse to the open Pound nor above three miles Where a man distraineth Cattell for doing Damage-feasant or for rent or service and put them into the common Pound or into another Pound or place and he who hath property in the Cattell or other person taketh the Cattell out of the said Pound and driveth them where he pleaseth he who distrained them may have a Writ de parco fracto Fitz. Na. Br. 293. E. A man may not distrain for any Rent or thing done for any Land but upon the same Land that is charged therewith but in case where I come to distrain and the other seeing my purpose chaseth the Beasts or beareth the thing out to the intent that I shall not take it for a Distresse upon the ground then I may well pursue and if I take it presently in the high way or in anothers ground the taking is lawfull as well as there upon the same Land charged to whomsoever the properties of the goods be If one distrain my goods that are not distrainable by Law I may have a generall Action of Trespasse or an Action of the case against him at my choice Co. 4. 94. The Distresse must be reasonable somewhat proportionable to the thing or cause for which it was taken and yet if the cause be so that a man cannot take a Distresse of lesse value and the thing be after a sort entire as in the Distresse of a Cart with its carryage or with the Horse or Oxen annexed to them for twenty shillings though there be much inequality yet may it not be unreasonable Marl. 1. 4. 22 E. 4. 15. 20 E. 4. 3. 41 E. 3. 26. But such Distresses as are either excessive for magnitude as if one take four Sheep for four pence or four Oxen for two shillings or the like these are unlawfull Distresses for which the Bayliff or Distrainer shall be punished Excessus in re qualibet in jure reprobatur Yet if he take a Horse or Oxe for two pence where no other Distresse is to be had it is not excessive but if there were a Sheep or other goods somewhat proportionable to be taken there it is excessive and punishable Co. 2. part Inst 107. 51 H. 3. Marl. 4. Co. 11. 44. 4. 8 H. 4. Fitz. Na. Br. 174. 45 Ed. 3. 26. If one distrain my Kine great with Calf and by driving they lose their Calfs I may have an Action of the case F. N. B. 86. If goods be impounded in a close House or secret place so that the Defendant cannot come to seed them and the goods do perish for want of sustenance the Distrainer must pay for them 33 H. 8. tit Distresse 66. If the Distrainer give the Cattell meat in the Pound he cannot compell the Owner of the Cattell to pay for this for the Distrainer is not compelled by Law to give them sustenance and if they do agree after the Distresse upon a sum yet this is no excuse but it is for their deliverance but if they do agree at the time of the Distresse taken that he should give them meat and that he should have twenty shillings or a certain propounded sum for the same this is a good bargain 21 E. 4 fo 53. An Action of Trespasse was brought upon the Statute that none should be distrained by his Cattell in the Plough so long as any other reasonable Distresse may be had and the Plaintiff declared the taking to be against the Statute and did not specially shew that he had other Cattell to be distrained yet it was adjudged good for the Defendant to alleadg this 4 E. 3. 18 E. 2. Stuff sent to a Taylor Weaver Fuller Sheerman Miller c. shall not be distrained for these Officers are necessary for the Common-wealth and the like Law is of and in a Common Inn. A Distresse must be of a thing whereof a valuable property is in some body and therefore Dogs Bucks Hares Does Cunnies Bees and the like that are ferae naturae or apparel Armour or Jewels cannot be distrained Yet though it be of a valuable property as a horse that a man rideth upon cannot be distrained Fitzherb in rescous 11. quod nota If a man come into a common Inn his Goods and Beasts shall not be distrained there because then it would be prejudiciall to the Common-wealth Also Goods and Chattels brought into a Fair or Market to be sold shall not be distrained per. cur Mich. 7 H. 7 fo 15. 10 H. 7. fo 21. Windowes Doors Tables fixed on a post a Furnace Pales Timber Boards fixed on the ground Glasse c. cannot be distrained nor sorfeited by Outlawry but if these are not used in a House but standers by then they may be distrained Mich. 21 H. 7. fo 13. Pasc 14. fo 25. H. 8. fo 25. Trin. 21. H. 7. fo 27. If a Bayliff come to a house to distrain the dores being fast shut and barred and with his hand through a crevice or hole did shove the bar and open the dore and did take out two Cows in the name of a Distresse and because he did take a Distresse in this manner it was adjudged the Distresse to be wrongfull Fitzherb abridg fo 296. No goods shall be distrained but the proper goods of the party and not pledges nor yet borrowed goods 35. H. 6. fo 25. per Moyle Justice And it is not of Chattels reall as a Lease for years nor of apparrell 7 H. 6. 9. A Distresse made by the servant of the Bayliff is good 27. Ass 6. 7. If a man distrain Cattell and they of their own accord come home again to the owner he who distrained them cannot take them again by reason of the first Distresse except he doth freshly follow them per Danby Justice because of the negligence of the distrainer 9 E. 4. fo 2. If a man come to distrain for Damage-feasant and see the Beasts in his ground and the Owner chaseth them out of purpose before the Distresse taken the Owner of the ground cannot distrain them and if he doth the Owner of the Cattell may rescue them for the Beasts must be Damage-feasant at the time of the Distresse 16 E. 4. 10. 2. 6. 2. Avowry 182. lib. 9. A horse cannot be distrained while the Owner thereof is riding upon him or leading of him nor if he be tyed at a Mill and came thither with grist nor a horse tyed at a mans dore the Owner being gone into the House on some businesse Pas 39.
chattels which late were W. W. deceased at the time of his death and now remaining in the hands of I. W. Executor of the Testament of the said W. W. and not administred of as well a certain debt of 40 l. which T. L. in my County Court by vertue of a Writ of Justicies recovered against him as also 20 s. which to the said T. L. in the same Court was adjudged for his costs and damages which he sustained by reason of the detaining of the said debt If the said I. W. Executor of the Testament of the said W. W. have so much goods or chattels in his hand which were the said W. W. at the time of his death sufficient to satisfie the debt and damages aforesaid If he have not so much goods or chattels in his hands which were the said W. W. at the time of his death sufficient to satisfie the said T. L. of the debt and damages aforesaid That then you or some of you levy of the proper goods and chattels of the said I. W. the damages and costs aforesaid so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render to the said T. L. the debt and damages aforesaid whereof he is convict And this given under the Seal of my Office the c. I. B. Esq c. to all and singular my Bayliffs c. greeting I command you and every of you that of the goods and chattels of T. O. you levy 20 s. which S. D. in the County Court according to a Statute provided in that case were adjudged for his costs and damages which he sustained in his own defence in a certain Plea of debt which the said S. D. against the said T O. of late brought because the said T. O. did not prosecute his Suit but was thereupon non-suited and convicted so that I may have the mony at my next County Court at the Castle of Y. holden on Munday c. next to satisfie the aforesaid S. D. of his costs and damages aforesaid And this c. Given under the Seal of my Office the c. I. B. Esq c. to all c. greeting I command you that of the goods and chattels of T. C. you levy 40 s. which to P. P. in my County Court were adjudged for his damages which he sustained in his own defence in a Plea of debt by the said W. against him the said P. P. lately brought whereof the said P. P. was quieted and by Verdict of his Country whereof the said T. C. was convict have you the mony at my next County Court to be holden at the Castle of Y. on Munday c. to satisfie the said P. P. of his damages aforesaid And this c. given under the seal of my office c. I. B. Esq c. to all c. greeting I command you and every of you joyntly and severally that of the goods and chattels which late were of E. S. Esq who dyed intestate as it is said and now in the hands of R. M. Gent. and A. his wife Administratrix of the goods and chattels which were the said E. S. at the time of his death remaining to be administred you cause to be made as well a certain debt of 4 l. which I. W. hath recovered against the said E. S. in my County Court as 30 s. which to him the said I. W. in my same Court were adjudged for his costs and damages which he had by occasion of detaining of the same debt by vertue of a Writ of Justices so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render the aforesaid I. W. of the debt and damages aforesaid whereof the aforesaid E. S. was convict And whereupon it was considered in my same Court that the aforesaid I. W. should have Execution against the aforesaid R. M. c. of the debt and damages aforesaid of the goods and chattels aforesaid by his the said R. M. his default And this given under the seal of my office the c. I. B. Esq c. to all singular my Bayliffs c. greeting I command you and every one of you joyntly and severally especiall to F. P. Bayliff of the Liberty of S. and his Deputies who hath the goods taken upon an Execution issuing out of this Court that those twenty weather Sheep of which each you cause to be apprised at eight shillings of the goods of I. C. Esq which you took and remain in your hands unsold for want of buyers as you your self returned to my Court you expose to sale and the mony thereof which in the whole amounts to eight pounds you have at my next County Court at the Castle of Y. holden on Munday the tenth day of May next to render to W. G. which to him the said W. G. in my Court were adjudged for his damages which he had by occasion of a certain Trespasse to him committed by the aforesaid I. C brought whereof he is convict And this given under the Seal of my Office the 18 day of October in the year of our Lord 1657. By the Sheriff Of a Scire Facias IF a Fieri facias do not issue out within a year and a day after Judgment entered it cannot be had till there be a Scire facias first sued out to summon the Defendant to shew cause why Execution should not be done and if now he neglect to answer or cannot be found to be summoned then a second Judgment shall be given that that Execution be done of the first Judgment If Judgment be given against a Testator albeit it be within a year after Judgment had yet there must first issue out a Scire facias against the Executor or Administrator before Execution to shew cause why it should not be had Or if a man recover against a Feme-sole and she become covert viz. take a Husband within the year and the day then he that shall recover must have a Scire facias against the Husband Scire facias post diem annum I. B. Esq Sheriff c. greeting Whereas W. F. of late in the Court of the aforesaid County by Judgment in the said Court of the County aforesaid held at the Castle of X on Munday the tenth day of February 1654. before the Suitors of the said Court recovered against G. L. as well a certain debt of thirty two shillings which the said W. F. in the same Court recovered against him as thirteen shillings and ten pence which to the said W. F. in the same Court were adjudged for his damages which he sustained by the occasion of the detaining of the debt of which he is convicted for as by the proceedings from thence in the same Court residing notwithstanding the manifest Execution of the aforesaid Judgment remains to be done as by
as S. V. hath appeared by his Attorney in this Court to answer W. N. of an Action of debt These are therefore to will and require you immediatly upon the sight hereof to deliver or cause to be delivered unto the said S. V. Two kine of the goods of him the said S. V. which you have distrained and do keep by vertue of my Warrant from this Court directed at the Suit of the said W. N. Fail you not hereof as you will answer the contrary Given under the Seal of my Office c. A Precept upon a Proclamation I. B. Esq Sheriff c. to the Bayliff of the Hundred of B. and to his Deputies greeting By vertue of a Proclamation upon Exigent to me directed I command you and every of you that you or some of you make two severall Proclamations The one to be made at the generall quarter Sessions of the Peace to be holden for the North-riding of the County of Y. And the other to be made at the Parish Church door after divine service where the severall persons under-written live and that they and every one of them yeeld their bodies to me the Sheriff of the said County where the Exigent lyeth to answer the person at whose Suit the Exigent is against them And hereof fail not at your perill Given under the Seal of my Office the two and twentieth day of August in the year of our Lord 1658. At the Election of the Coroner he is to be sworn in Court by the County Clark for the due Execution of his Office In this manner You shall swear that you well and truly shall serve his Highnesse the Lord Protector and the Common-wealth in the Office of a Coroner and as one of his Highnesse Coroners of the County of Y. and therein you shall truly diligently do and accomplish all and every thing and things appertaining to your Office after the best of your cunning wit and power both for the profit and good of the Inhabitants within the said County taking such Fees as you ought to take by the Laws and Statutes of this Common-wealth and not otherwise so help you God The Oath of an Attorney in this Court YOu shall do no falshood nor consent to any to be done in the Court and if you know of any to be done you shall give knowledge thereof to the Steward or county Clerk that the same may be reformed you shall delay no man for lucre or malice you shall increase no fees but shall be content with the old fees accustomed you shall suffer no forreign or illegal suits to hurt any man nor plead or cause to be pleaded any forreign plea but such as shall stand with the order of the law and your conscience you shall seal all such processe as you shall sue out of this Court with the seal thereof you shall not procure to be sued any false suit nor give aid nor consent to the same And lastly you shall use your selfe in the office of an Attorney within this Court according to your learning and discretion So help you God A Warrant of Attorney To S. D. one of the Attorneys of the County Court for the County of Y. c. I A. B. do hereby desire you and do give you full power license and authority to appear for me and for c. in your said Court on Monday c. in an action of debt for c. at the suit of E. D. upon an obligation conditioned for the payment of c. in which said obligation I stand bound as principal And this shall be your sufficient warrant in that behalfe In witnesse c. Bond for appearance It hath been formerly used to take a bond of the defendant for his appearance in this Court the form of the condition is thus THe condition c. That if the above bounden E T. do appear at the next County Court to be holden at the Castle of Y. on monday the first day of Ianuary next to answer H. B. in a plea of debt and do also stand to such order as the Court in that behalfe shall set down and adjudge according to law That then this present obligation to be void c. A sale of Goods to the Plaintiff levied upon a Fieri facias by the Sheriffs Bailiffe KNow all men by these presents That I G. B. of Skipton in Craven Bailiffe of the Liberty or Weapentake of Slaincliffe in the County of Y. By vertue of a precept of Fieri facias from the Sheriff to me directed have levied of the goods and chattels of c. the sum of c. paâ—t of a debt due to c. levied by vertue of the precept to his use In full satisfaction of which said sum of c I do by vertue of the precept or warrant to me directed as aforesaid assigne sell and set over unto the said c. all the goods and chattels in the apprisement hereto annexed nominated at the rate of c. To have c. the said goods and chattels to him his heirs executors and administrators as his or their own proper goods and chattels as fully and absolutely as I the said G. B. might could or ought to do by force and vertue of the said precept and apprisement or otherwise howsoever In witnesse whereof I have hereunto set my hand and seal the sixteenth day of August in the yeare of our Lord 1658. A Deputation for a Bailiff of an hundred I. B. Esquire Sheriffe of the County of Y. to all Christian people to whom these presents doth or may concern greeting Know ye that I the said Sheriff have deputed constituted and appointed R. D. of A. in c. my lawfull Bailiff and Deputy within the Hundred of B. in the North-riding in the County of Y. aforesaid to have and execute the said Office of Bailiff within the said Hundred or elswhere within the said County of Y. as occasion shal require it during my pleasure onely and no longer and to receive and take to my use all Fees as well for Distresse Attachment and Perquisites of Courts and other profits due and accustomed whatsoever to the said Bayliwick belonging or in any wise appertaining And whatsoever my said Bayliff shall lawfully execute and do in his said Office I do hereby warrant ratifie and confirme as my own act and deed In witnesse whereof I have hereunto set the Seal of my Office the seventeenth day of August 1658. The Fees The Fees to the County Clark  l. s d. FOr every Distringas 00-00-08 Every speciall Distringas 00-01-08 Duces tecum 00-00 08 A speciall Duces tecum 00-01-08 The Writ of Justicies 00-02-06 The Precept upon the Writ of Justicies 00-02-04 A speciall Precept upon the Writ of Justic 00-04-04 A Replevin 00-02-04 A speciall Replevin 00-05-04 The Bond upon the Replevin 00-01-00 Subpoena for Witnesses 00-00-08 Venire facias 00-02-00 Habeas corpora 00-02-00 Fieri facias 00-02-00 Capias in Withernam 00-05-04
Scire facias 00-02-00 Tolt 00-01-02 Precept upon an accedas ad curiam 00-02-04 Supersedeas 00-02-04 Procedendo 00-02-00 Warrant of Attorney upon every Distringas 00-00-02 Warrant of Attorney upon a Iusticies 00-00-04 Entring Essoynes for every name 00-00-04 Entring Imparlance 00-01-00 Copying the Declaration 00-01-00 Allowing the answer 00-01-00 Copying the answer 00-01-00 Allowing the Replication 00-01-00 And for copying the Replication and allowing the Rejoynder c. and so of the rest 00-02-00 Entring a Rule 00-00-04 Entring a Default by Nihil dicit 00-00-04 Entring a Non-suit 00-00-04 Dividing a Plaint for every name 00-00-04 Entring Judgment 00-02-00 Transcript upon a Plaint 00-01-08 Transcript upon a Writ of Iusticies 00-03-04 Allowing a Recordare 00-04-00 Allowing a Pone 00-04-10 Allowing a Writ of False Iudgment 00-06-08 Fees to the Attorney FOr drawing every Declaration 00-01-00 Drawing every answer 00-01-00 Drawing the Replication 00-01-00 Drawing Rejoynder 00-01-00 Drawing Sur-rejoynder 00-01-00 For every Court day wherein he proceeds in the Action allowed as his Fee 00-02-00 Fees to the Bayliff for executing of Processe FOr executing a Distringas of the Plaintiff 00-00-04 and of the Defendant 00 00-08 A Duces tecum of the Plaintiff 00 00-04 And of the Defendant 00-00-08 A Iusticies of the Plaintiff 00-01-00 and of the Defendant 00-02-00 A Replevin of the Plaintiff 00-02-00 A Venire facias 00-02-00 If tried for the Habeas corpora 00-02-00 A Fieri facias 00-02-00 A Scire facias 00-02-00 The Order of the Judges of Assize at York the 24. day of July 1654. concerning Essoins illegally returned into this Court. WHereas of late Judgements have been surreptitiously obtained in this Court by reason of Essoins unduly brought into the Court by Bailiffs or their Deputies and others after attachment of goods for appearance which pretended Essoins being afterwards disavowed by the defendant have occasioned sundry complaints and suits when the defendants goods were taken in execution for preventing whereof it is ordered upon advice and consultation had with the Judges of Assize at Y this day that henceforth no common Essoin shal be entred and allowed by the Court to save a default unlesse it be warranted in writing under the proper hand-writing or under the hand seal or mark of the defendant thereby specially authorizing the party being the Essoiner to cast such Essoin for him and in his name for the truth of which subscription or sealing the same Essoin is to be sworn in open Court and no Essoin is to be admitted or received from henceforth being not affirmed and sworn unto and so entred upon the back of the warrant of attachment which is to remain upon the file amongst the Rolls or proceedings of the Courr and if any other person not being a Bailiff shall be the Essoiner he is to bring the like warrant from the Defendant in writing as is aforesaid and be sworn for the truth thereof which is to remain in Court as aforesaid And no jugdement shall be given where there is no other appearance but an essoin Unlesse the Essoin shall appear to be warranted as aforesaid To swear to warrant Essoyns in this Court is contrary to the Statute of Marlbridge cap. 19. which saith De essoniis autem provisum est quod in Com. c. nullus habeat necesse jurare pro Essonio suo warrantizand Of the nature and Return of those Writs that do remove actions out of this Court into superiour Courts WRits removing suits out of this Court may be without shewing cause in the writ if the remove be by the Plaintiff but not without shewing good cause if it be by the Defendant As that the suit is for Charters of land or for inheritance or for freehold of Land or any titles of Land or actions touching life or actions to cause one to render an accompt or trespass vi armis all which are not within the cognizance of the Court. Or that he before whom the action depends is a favourer of him that is on the other side or that the Defendant avoweth for damage feasant and the Plaintiff doth justifie for common of pasture which is a plea touching Freehold and thrrefore the prosecution in this Court ceaseth First of a Recordare facias loquelam A Recordare is a writ issuing out of the Chancery directed to the Sheriff commanding him to send a plaint that is before him in his County Court without writ of Iusticies into the Court of Vpper Bench or Common Pleas to the end that the cause may be there determined And the Shiriff is hereupon to summon the other party to be in that Court into which the Plaint is to be sent at a day certain And of all this he is to make a certificate under his own Seal and the Seals of four Suitors of the same Court By vertue of this Writ to me directed at my County of Y. held at the Castle of Y. within written such a day and year to be Recorded I caused the Plea of which within is made mention which appears in a Schedule to this Writ annexed and that Record I have before the Iustices within written at the day and place within contained under my Seal and the Seals of W. H. E. R. c. four good and legall Knights of the same County of them who at the Record present were and to the parties within written that day I have prefixed that then they be there in that Plea as just it may be to prosecute as within to me is commanded The residue of the Execution of this Writ appears in a certain Schedule to this Writ annexed At my County Court held at the Castle of Y. in the County aforesaid such day and year before I. R. M. L. I. S. and S. D. four Suitors of the said Court amongst other matters is contained R. S. complaineth against B. W. of a Plea of debt or as the case requires I. B. Esq Sheriff pledg of prosec I. S. I. D. In testimony of c. By vertue of this Writ to be recorded I have caused the Plea which is in my County without Writ of Oliver Lord Protector c. betwixt A. B. and C. D. concerning the Beasts of him the said A. B. taken and unjustly detained as it is said and that Record I have before the Justices within written at the day and place within contained under my seal and the seals of E. B. S. D. R. B and I. L. four legall Knights of my County of those who at the Record present were as it appeareth in a certain Schedule to this Writ annexed according to the Exigency of this Writ At my County held c as before By vertue of this Writ in form within written I came to the Court within written and in that full Court to be recorded caused the plea within written and that Record as it appeareth in a Schedule to this Writ annexed I have before the Justices within written at
the day and place within contained and to the parties within written that day have prefixed that then they be there in that Plea as just it may be to proceed as within to me is commanded A. B. complaines of C. D. in a Plea of taking of the Beasts of him the said A. B. in testimony of which matter E. B. S. D. I. W. and I. R. four legall men of those who at the Record present were in full Court at the Castle of Y. in the County aforesaid the tenth day of Aug in the year c. to the same Record their Seals severally have put the day and year abovesaid Note that though the Plea be discontinued in the County yet the Plaintiff or Defendant may remove the Plaint into the Common Pleas or Upper Bench by a Recordare c. and it shall be good and he shall declare upon the same And the Court shall hold Plea upon the fame Plaint for if the Plaint be continued in the County and issue joyned upon it yet nothing shall be removed but only the Plaint and in the Common Pleas the Plaintiff may declare anew c. Likewise if the Recordare bear date before the Plaint was entred in the County it is good enough and the Record is well removed The nature of a Pone A Pone doth nothing differ from a Recordare but that a Pone is allwayes to remove such Suits as are before the Sheriff by Writ of Iusticies and not by Plaint onely but the Recordare is to remove the Suit that is by Plaint onely without Writ F. N. B. 70. 11. By vertue of this Writ to me directed I have put before the Justices c. of the Common Bench at Westminster the Plea which is in my County by Writ of his Highness the Lord Protector of Iusticies betwixt A. B. and C. D. of a Plea of debt as it is said as it appeareth in a certain Schedule to this Writ annexed c. At my County Court held at the Castle of Y. in the County aforesaid upon Munday the twelfth day of August in the year of our Lord 1658. c. A. B. complaineth of C. D. of a Plea of debt in testimony of which matter R. L. S. R. T. O. and S. D. four legall men of those who at the Record present were in full Court their seals severally have put the day and year abovesaid A. B. complaineth of C. D. of a plea of debt 20 l. That if a plea be removed by Pone at the suit of the Defendant or Plaintiff and afterwards they proceed in this Court in the plea and give judgement and award execution c. then the Defendant or he against whom the judgement was given and execution awarded shall have an attachment against the Sheriff directed to the Coroner to answer as well his Highness the Lord Protector for the contempt as the party his damages c. Of the Writ of Prohibition THe Writ of Prohibition is of the same nature of a Recordare and a Pone but not in use Of the Consultation or Procedendo THese two Writs are both of one nature though the Writ of Consultation be obsolete and the writ of Procedendo stept up into its place it lieth where a cause hath been formerly removed by Pone or Recordare from this Court into the Vpper Bench or Common Pleas and for want of sufficient cause of removeall is sent back again Fitz. old Natura brevium 50. The nature of a Writ of False Judgement A Writ of salfe Iudgement lieth where an erroneous Judgement is given in this Court being no Court of Record then the party grieved by the Judgment may have this Writ and remove all processe of the suit into the Common Bench and there it shall be examined if it be found erroneous the Judgement shall be reversed and the suiters of the Court who gave the Judgement amerced Note that a Writ of false Judgement lieth not but in a Court where there are Suitors for if there be no Suitors there the Record cannot be certified by them F. N. B. 43. H. By vertue of this Writ to me directed to be Recorded I have caused the Plea which is in my County together with the proceedings and the Judgement betwixt the parties beneath and to the same parties day have prefixed to be before the Justices within written at the day place within contained as the Writ exacts and requires which plea with the proceedings and judgment appeareth in a certain Schedule to this Writ annexed A Plaint by Writ in the County Court holden at the Castle of Y. in the County aforesaid on Monday the 23. day of August the year c. before the Suitors of the same Court in the time of I. B. Esquire Sheriff of the County aforesaid according to the Customs and Priviledges of the same Court time whereof the memory of man is not to the contrary have been used and approved in the same At this Court came A. B. in his proper person and brought here into Court a Writ of his Highnesse the Lord Protector of Iusticies which said Writ follows in these words O LIVER Lord Protector of c. To the Sheriff of Y. greeting A. B. hath complained to us that C. D. upon him the said A. B. at the Castle of Y. hath made an assault and hath beaten wounded and evil intreated him so that of his life it was despaired and hath done him other wrongs to the great damage and grievance of the said A. B. and therefore we command you that you hear the said plaint and after cause them to be therefore brought to justice for the same that we hear no more complaint therein for want of justice Witnesse our selves at Westminster the 10. day of August in the year of our Lord 1656. And thereupon found Pledges to prosecute the said plaint that is to say Io. Doo and Ric. Roo And thereupon the said A. B. put in his place S. D his Attorney in the plaint aforesaid and by his said Attorney required processe to be made to him upon the same And it was commanded by the said I. B. Esquire Sheriff of the said County to all and singular his Bailiffs jointly and severally and their Deputies that they or some of them should do justice to the said C. D. so that he should be and appear at the next County Court to be holden at the Castle of Y. on Monday the 20. day of September then next in the year aforesaid to answer the said A. B. in the plaint aforesaid At which day came the said A. B. by his Attorney aforesaid and offered himselfe against the said C. D. in the plaint aforesaid and then and there came I. P. one of the Bailiffs in the County aforesaid of the said I. B. Sheriff of the said County and returned the said precept so directed as aforesaid served and executed on him and the said C.
voluntary will make to the said A. the said writing and not by force and hardnesse of imprisonment as the said B. above hath alledged And this he prayeth may be inquired of by the Countrey And the said B. likewise c. The Assault made by the Plaintiff c. ANd c. when c. And as to the Trespasse and Assault aforesaid above supposed to be done the said I. R. saith that the said R. W. his action aforesaid against him ought not to have because he saith that the aforesaid R. VV. the day year c. aforesaid upon him the said I. R. at the Castle c. did make an Assault and him would have beaten wounded and evil intreated by which the said I. R. himselfe against the aforesaid R. VV. did then and there defend And saith that if any evil to the said R. VV. then and there happened was of the proper assault of him the said R. VV. And in defence of him the said I. R. And this he is ready to verifie whereupon he prayeth Judgement if the aforesaid R. VV. his action aforesaid against him ought to have c. Replication ANd the foresaid R. VV saith that he by any thing before alledged from having his action aforesaid ought not to be debarred because he saith that the foresaid I. R. the day yeare c. abovesaid at c. in his Declaration aforesaid above specified of his own proper injury and without such cause by the said R. VV. above alledged upon him the said R. VV. did make an assault and him did beat wound and evil intreat so that of his life he did despair against the peace of the Lord Protector that now is as the said R. VV. above against him hath complained And this he prayeth may be inquired of by the Countrey And the said I. R. likewise Therefore c. The Defendant pleadeth the Plaintiff within age to bring his action and should have brought it by Guardian and not by Attorney ANd c. when c. And sayes that the foresaid I. R. ought not to have his action aforesaid against him because he sayes that the foresaid I. R. the day and year in the Declaration specified to wit the day year c. the day of the issuing forth of the Writ of Justicies of him the said I. R. that is to say the day year c. was within the age of one and twenty years And that the foresaid I. R. declared against him the said P. C. in the Plaint aforesaid by his Attorney whereas by the due form of Law he ought to have declared by his Guardian And this he is ready to aver whereupon he prayes Judgement whether the aforesaid I. R. ought to have his action aforesaid against him c. To a Trespasse in Walking Not guilty and as to the residue of Trespasse tender of amends ANd c. when c. and saith that as to the breaking of the close aforesaid as also to the treading down and consuming of the Corn and grasse aforesaid with his seet in walking in the same four acres of land aforesaid of new assigned above supposed to be done saith that he is in no wise thereof guilty c. and of this he putteth himself upon the Countrey and the Plaintiff likewise And as to the residue of the trespasse aforesaid in the same four acres of Land of new assigned above supposed to be done the same A. saith that the same B. his action aforesaid ought not to have because he saith that the residue of the trespass aforesaid in the same four acres of Land of new assigned above supposed to be done was done with the cattle aforesaid by negligence and against the will of the same A. and that the same A. afterwards and before the day of commencing of this action of the same B. to wit the 16 day of May in the year c. at the same parish of R. in the said County of Y. offered to the same B. 20 s. of lawfull money of England for and in satisfaction for the residue of the trespasse aforesaid so as aforesaid done which said 20 s. were sufficient amends for the same residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned as beforesaid done and that the same B. the said 20 s. as aforesaid offered to receive of the same A. then and there altogether refused and as yet doth refuse and this he is ready to verifie And c. Replication ANd the same B. as to the same plea of the said A. as to the said residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned done saith that he by any thing in the same plea before alledged ought not to be barred from having his action aforesaid against him c. because he protesteth that the aforesaid residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned was not done with the cattel aforesaid by the negligence and against the will of the same A. protesting also that the said 20 s. in satisfaction for the trespasse aforesaid were not offered before the same day of commencing the suit of the said B. as the same A. hath above alledged for plea the same B. saith that the same 20 s. were offered by the same A. to the said B. for a certain trespasse by the same A. with his cattle aforesaid to the same B. in a certain other Close of land with the appurtenances called the S. of the same B. in the Parish of R. aforesaid in the County aforesaid done without that that the same A. offered to the same B. the said 20 s. for and in the satisfaction of the foresaid residue of the trespass aforesaid in the same 4 acres of land of new assigned done as the same A. hath above alledged and this he is ready to verifie whereupon for that the same A. the said residue of the trespass aforesaid in the same four acres of Land with the appurtenances aforesaid of new assigned done above acknowledgeth the same B. prayeth judgment and his damages by occasion of the residue of the trespass aforesaid to him to be adjudged c. Rejoynder ANd the same A. as before saith that he offered to the same B. the said 20 s. for and in satisfaction of the said residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned done as he hath above alledged And of this he putteth himselfe upon the Countrey and the same B. likewise Therefore c. Misnomer in Baptism pleaded in Abatement of the Writ of Justicies ANd the said A. by Simon Don his Attorney comes and prayes Judgement of the Writ of Justicies aforesaid because he saith that the name of Baptism of the said Agnes in the Writ aforesaid named is Anna and not Agnes as the said B. hath above
said C. D. the said Messuage Garden Land and Wood with the appurtenances from the said Feast of the Annunciation of c. until the Feast of the Annunciation of c. next before the time of the taking aforesaid had and occupied and for that that 30 s. of the said Lease by the said time unto him the said A. B. at the time of the said computation remained in arrear and as yet remaineth unpaid doth well avouch the taking of the said Cattel in the said place in which c. and justly c. And this he is ready to prove whereupon he prayeth judgment and the return of the said Cattel to be adjudged unto him c. The Defendant saith that the Goods were taken as a pawn or pledge for money lent ANd the aforesaid A. B. by c. comes and defends the force and injury when c. And as to the breaking the Close c. he is in nothing thereof guilty and as to the residue of the trespasse aforesaid supposed to be done the same A. B. saies the aforesaid C. D. ought not to have his action c. because he saith that the same C D. long before the said time wherein c. was indebted unto him the said A. B. in 22 s. for divers sums of money by him the said C. D. of the aforesaid A. B. formerly borrowed And afterwards and long before the said time the same C. D. by one E. his wife delivered to the aforesaid A. B. the aforesaid goods and chattels as a pawn for the aforesaid 22 s. to be held unto him the said A. B. in pledge until the said C. D. to the aforesaid A. B. the same 22 s. had paid And the same A. B. in fact saith that the aforesaid C. D. hath not as yet paid to him the said A. B. the aforesaid 22 s. which is the same Trespasse and taking and carrying away the aforesaid goods and chattels whereof the aforesaid C. D. above now complains And this c. whereupon c. Replication that he tooke them Injuria sua propria without such a cause ANd the said C. D. sayes that he by any thing before alledged ought not to be debarred from having his action aforesaid because he saith that the aforesaid A. B. as of his proper injury and without such a cause above by him the said A. B. alledged the day and year aforesaid the aforesaid goods and chattels at R. in the said County of Y. found he took and carried away as the same C. D. by his Declaration aforesaid above supposeth And this he prayeth may be inquired of by the Countrey And the aforesaid A. B. in like manner Therefore c. Concord in Assault and Battery ANd the aforesaid A. B. in his proper person coms and defends the sorce and injury when c. And saith that as to the Trespasse aforesaid above supposed to be done the same A. B. sayes that the aforesaid C. D. ought not to have his action aforesaid against him because he saith that long after the Trespasse aforesaid was supposed to be made to wit the eighth day of July in the year c. aforesaid at S. aforesaid in the County aforesaid and within the liberty and jurisdiction of this Court the same A. B. and C. D. by the mediation of E. F. and G. H. their friends and acquaintance in a friendly manner comming between them in such manner it was agreed together between them that is to say that the aforesaid A. B. should pay to the aforesaid C. D. in amends and for satisfaction of that Trespasse five shillings of lawfull money of England which the said A. B. the said five shillings of c. to the aforesaid C. D. then and there paid according to the force form and effect of the concord aforesaid And this c. whereupon he prayes Judgement c. Replication No such Concord or Agreement made ANd the aforesaid C. D. sayes that he by any thing prealledged ought not to be debarred from having his action aforesaid because he saith that there was never any such concord or agreement had between them the said C D. and A B. in manner and form as the said A B. hath above alledged by pleading And this he prayes may be inquired of by the Countrey and the aforesaid A B. in like manner c. The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Heriot ANd the said C D. by c. cometh and defendeth the force and wrong when c. And as to the taking of the said Oxe the said C D. doth well avow the taking of the said Oxe in the said place in which c. and justly c. because he saith that long before the taking of the said Oxe before supposed one I G. was seized of one Messuage with the appurtenances in W. aforesaid in his Demesne as of see and so seized held the same of the said C D. by fealty and the rent of 12 d. unto him the said C D. every year at the feasts of the Annunciation of the blessed Virgin Mary c. of S. Michael the Archangel to be paid by equall portions and also by Services that every tenant of the said Messuage with the appurtenances thereof seized in his Demesne as ofsee or in use from the time of which contrary c. he ought and had accustomed to render unto the said C D. and his heirs the best animal living of the same tenant of the said Messuage with the appurtenances so thereof dying seised in his Demesne as of see or in use by the name of Heriot of which services the said C D. was seized by the hands of the said I G. as by the hands of his true tenant that is to say of the said Fealty as ofsee and right and of the said Rent in his Demesne as of see And afterward the said I G. died of the said Messuage with the appurtenances seized in his Demesne as ofsee And because the said Oxe was the proper Oxe of the said I G. at the time of his Death the said C D. that Oxe as the best animal which was of the said I G. at the time of his death by the name of a Heriot he took and justly c. Justification in Trespasse for want of reparation of the hedges by the Plaintiffe ANd the said A and B. by I R. their Attorney come and desend their force and injury where c. And as to the breaking of the Close aforesaid and the eating up treading down and consuming the grasse aforesaid the same A and B. say that the aforesaid D. ought not to have his action aforesaid against them because they say that at the time of the Trespasse aforesaid supposed to be made were and are seized of a certain Close of Pasture near adjoyning to the said Close of the aforesaid D. in which the grasse aforesaid in S.
Law Decies tantum subornation of perjury concealment such as are not outlawed abjured condemned in a Premunire or attaint of Treason felony c. 11 H. 4. cap. 9. Return of Issues HE is to returne good sufficient and reasonable Issues and upon such persons as have sufficient goods and lands according to the Stat. of Westminst 2. cap. 39. E. 3. cap. 5. Of Escapes and what damage doth occur to the Sheriffe by them THe Sheriffe ought to be very cautious in electing a vigilant and honest Gaoler and such a one as is able to give sufficient security for his indempnity and true performance of his office and to answer all escapes for of all the Officers that appertain to the Sherif the Gaoler ought to be most circumspect otherwise many escapes would happen And first to define what an Escape is It is here to be understood where one that is arrested and imprisoned in the common Gaol of the county and cometh to his liberty before that he is delivered by the award of any Justices or by order of Law If the imprisonment of him that escaped were for felony then that shall be felony in him that did voluntarily not otherwise suffer the escape and if for treason then it shall be treason in him and if trespasse then trespasse c. Although the prisoner which escapes be out of the view yet if fresh suit be made and he be reprised in recenti insequtione he shall be in execution otherwise at the turning of a corner or by an entry of an house or by any other such meanes the prisoner may be out of view Co. 3. Rep. Rigweys Case If the Sheriffe doth assent that one who is in execution and under their custody shall goe out of the Goal for a while and then return although that he returne in the time yet this is an escape for the Sheriffe ought to guard him in salva et arcta custodia and the Statute of Westm 2. c. 11. saith quod carceri mancipentur in ferris So that the Sheriff may keep such as are in Execution in yrons and fetters till they have satisfied their Creditors It is adjudged if one be in Execution no commandement although of the Protector himselfe without writ is a sufficient warrant to discharge the Gaoler and so by the same reason shall not discharge the Sheriff Where the Sheriffe dyeth and one in Execution breaketh the Gaole and goeth at large this is no escape for when a Sheriff dyeth all the prisoners are in the custody of the Law untill the election of a new Sheriffe If a woman be Warden of the Fleet and a prisoner in the Fleet marrieth her this shall be judged an escape in the woman and the Law judgeth the prisoner to be at large Plow Comment Plats case If the Sheriff remove his prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaole it is no escape but if he remove his prisoners for their ease and delight in the same County it is an escape As the case was cited by Harvey Mich. 3. Char. Com. Banc. That the Sheriffe went with his prisoner to a Beare-baiting in the same County and it was adjudged an escape And Hutton Justice said that if a Sheriffe permit his prisoners to go to worke for their benefit it is an escape And the question was if in an Audita Querela for a voluntary escape of one in Execution there should be bayle And the opinion of the Court was That if it appeares that the cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and speciall bayl If a prisoner of his owne wrong escape and flye into another County the Sheriffe or his Officers upon fresh suite may take him againe See Daltons office of Sheriffs If a prisoner in the Gaole attempteth to escape and having broken his yrons striketh the Gaoler coming in the night to his prisoner and the Gaoler slayeth him it is no felony 22 Ass 35. An Action of Debt was brought against a Gaoler for an Escape who said that the Sheriff did not deliver him lawfully to him And it was therefore ruled 13 Edw. 3. Fitz. tit Barr. plac 253. That to be kept in salva arcta custodia 13 E. 3. Fitz tit he shall not take benefit nor any notice whether he was lawfully delivered to him in Execution or not But he being once in his custody he ought to keepe him in arcta salva custodia subpoena salva for the Gaoler and arcta for the party the Plaintiff the party by this being coarcted to pay the debt Mich. 12 Jac. An action upon the Case was brought against the Sheriffe of N. for an escape upon Not guilty pleaded all the speciall matter was found and shewed to the Court which was this That a Capias did issue to the Sheriffe to take one Iohn which was by a wrong name and the Sheriffe returned a Non est Inventus and upon this a Testatum issued out to him and therein named him by his right name Upon this the Sheriffe tooke him and had him in Execution and afterwards suffered him to escape The whole Court agreed that the Sheriffe is answerable for this escape notwithstanding the first Capias was by a wrong name for he was taken and suffered to escape here upon Not guilty pleaded the special matter was found and shewed that the first Capias was by a wrong name yet the Court was cleer of opinion that he being taken and in Execution by his right name though the first Capias was erroneous and not right the Sheriffe shall be chargeable for this escape clearly and so by the rule of the Court judgement was given for the Plaintif I thinke it very pertinent to our subject matter and 't is well worth observation to transcribe Whitings Case against Sir George Reynell Marshall of the Kings Bench in the second part of Crooks Reports fol. 657. and 658. viz. Debt for 202 pounds whereas he recovered against Thomas Abingdon and Mary his Wife in trespasse for damages 202 pounds and the said Mary was committed in Execution to the Defendant upon this Judgement That the Defendant 24 Novemb. 16 lac suffered her to goe at large whither she would his debt not being satisfied per quod actio accrevit The Defendant pleaded That she brake Prison and escaped and freshly followed her and took her again 21 Octob. 17 Iac. in fresh suit and had her in Execution and yet hath her c. VVhereupon the Plaintif demurred And it was now angued that this plea was not good because the escape is alleadged 24 Novemb. 16. Jac. and the Action is brought Pasch 17 Iac. And this reprisall is alleaged a yeare after the escape and after the
because he is conservator of the peace but now it seems the power is transferred to the Justices of the Peace onely See the Stat. 1 R. 3. c. 3. 3 H. 7. 3. If a prisoner bailable tender sufficient sureties to the Sheriff and he refuseth he shall be amerced to the Protector and Informer 40 l. and shall lose treble damages to the party grieved If a person be arrested by vertue of any Writ or precept in any Action personall upon tender of reasonable sureties to appear at the day and place as the said Writs Bills or Preceps shall require he shall be bailed 23 H. 6. cap. 10. Fitz. 251. b. And the person is not obliged to go to the Sherif if he offer sufficient baile to the Baylif Persons apprehended for any manner of Treason or Felony shall not be bailed Westm 1. Cap. It is the constant course of the Upper Bench that the Bail is never chargeable till there is default assigned in the principall upon the return of a Capias ad satisfac And if the principall render his body though the Plaintiff refuse to take it yet that is a discharge of the baile Winch Rep. fo 62. It is not repugnant to our present subject to transcribe the new Rules concerning speciall Bayle viz. 1. That if the Defendant appeare upon the Summons Attachment or Distresse or by Supersedeas quia improvide or doth truly render himselfe upon the Exigent no baile is requirable 2 That in all causes of removeall be it by Habeas Corpus Priviledges or Certiorari speciall bail ought to be given 3 That in causes where the Defendant comes in by Cepi corpus be it Debt Detinue Trespasse for goods Action upon the Case except slander if the debt or damages amount to 20 l. special baile is to be given except it be against an Heire Executor or Administrator 4 That in Covenant because the damages are uncertain till Declaration bail at discretion 5 That in Battery Conspiracy false imprisonment no speciall baile of course without special motion and order 6 That in slander no speciall baile except in slander of title wherein to be left to the discretion of the Judges 7 That in priviledge other then for sees and disbursments as an Attorney in this Court baile at discretion of the Court. In such case wherein a suite by a common person especiall baile is not requisite 8 That if baile be given upon reversall of an Outlawrie or removall by Habeas Corpus the Originall to be shewne upon tendring of the Declaration otherwise the baile not liable unlesse the party or his Attorney will voluntarily appeare or take a Declaration without shewing of it 9 That in case of a removall out of an inferiour Court or reversall the new Originall to agree in the nature of the Action the summe in demand and the County otherwise the baile not lyable but if the partie will voluntarily appeare to such varying originall to be good as to the partie but if upon a cause removed by Habeas Corpus out of the Courts of Canterbury Southampton Hull Litchfield or Poole which are Counties where the Judges of Nisi prius seldome come if the Action be transitory it must be laid in the County of Kent Southampton Yorke Stafford or Dorcet where the Towne and County lieth and the Recognizance to be taken accordingly 10 That the Principall rendring himselfe at any time after bayle put in and before or upon the day of appearnce of the scire fac returned scire feci or of the second scire facias returned Nihil or in case there shall be an Action of Debt brought upon the Recognizance against the Bayle then if the Principall shall render himselfe upon or before the processe returned or served no further proceeding to be against the Bayle Of the Election of Parliament men how and when they are to be elected c. THe manner of electing Knights of the Shire is as followeth viz. At the next County Court after the delivery of the Writ Proclamation is to be made in full County of the day and place of the Parliament and that all there present as well Suitors summoned as others shall attend to the election of the Knights and then in full County a free and indifferent election shall be made notwithstanding any request or mandate to the contrary And note that no Election can be made by any Knight of the Shire but between the hours of 8 and 11. in the fore-noon but if the election be begun within the time and cannot be determined within those hours the election may be made after And if any election or voyces be given before the Precept be read and published are void and not effectual Likewise he ought immediately after the receipt of the Writ of his Highness for the summoning of the Parliament to make his Precepts under the seal of his Office to every Major and Bailiff of Cities and Boroughs within his County commanding them thereby to choose Citizens and Burgesses to come to the Parliament And those Majors and Bayliffs must make a legal return of that Precept to the Sheriff of their election and their names that are elected The Sheriff setting his hand and seal of Office to one part of the Indentures delivering it to the Major Citizens or Burgesses to be kept the Major Citizens or Burgesses setting their hands and seals to the other part delivering it as their Deeds to the Sheriff to be certified and returned by him with the writ of summons to the Clerk of the Crown whose see is 4 s for every Indenture 23 H. 6. cap 15. Crompton 208. P. Parl. 5. Note that after the Precept of the Sheriff directed to the City or Borough for making of election there ought Secundum legem consuetudinem Parliamenti to be given a convenient time for the day of election and sufficient warning given to the Citizens or Burgesses that have voices that they may be present otherwise the election is not good At the election if the party elected or the Freeholders demand the poll the Sheriff cannot deny the scrutiny for he cannot discern who be Freeholders by the view and though the party would wave the poll yet the Sheriff must proceed in the scrutiny And by the Stat. of 8 H. 6. c. 7. 10 H. 6. c. 2. The election of Knights of the Shire shall be made by the more voices of the people dwelling in the Counties having each of them lands or tenements of the yearly value of 40 s. besides reprises and the Sheriff hath power to examine upon oath the choosers how much they may expend by the year After such election the names of the parties so elected be they present or absent shall be written in an Indenture under the seals of all those that did choose them which Indenture so sealed and taken to the said writ shall be the Sheriffs return thereof touching the Knights of the Shires
doe the office and duty of an Under-sheriff in the said County of Y. And shall and will well and sufficiently do and execute for and in the name of the said Sheriffe all and every thing and things concerning the office of the said Sheriffe of the said County of Y. which without the personall presence of the said high Sheriff may lawfully be done and executed and thereof shall discharge the said high Sheriff his Heirs Executors and Administrators And furthermore the said C. D. for him his Heirs Executors and Administrators and every of them doth covenant promise and grant to and with the said A. B. his Heirs Executors and Administrators and every of them by these presents that neither the said C. D. his Servant Deputy Assignee Clark or Bayliffe by him to be assigned shall or will by colour of his said Office Deputation or Assignment extort levy receive any manner of thing or things which by the Lawes customes or statutes of the Common-wealth are or shall be prohibited or not allowed whereby the said Sheriff his Heirs Executors or Admistrators or any of them may in any wise be either in their persons goods or lands lawfully defamed impeached charged impaired molested or troubled And further the said C. D. for himselfe his Heirs Executors and Administrators and every of them doth covenant promise and grant to with the said A. B. his Heirs Excutors and Administrators and every of them by these presents That he the said C. D. shall and will assigne and appoint sufficient Deputies and Attorneys in all Courts accustomed aswell to receive writs warrants precepts and commandements to the said Sheriff to be directed and to make processe thereof and to do all thing and things for the executing serving and sufficient returning thereof And also shall make and appoint a sufficient number of Deputies in all parts of the said County of Y. according to the Lawes and Statutes of this Common-wealth And he the said C. D. shall and will from time to time give reasonable notice and warning unto the said A. B. of all such things as shall be requisite and necessary for the said A. B. Sheriff of the said County or by reason of his said office in his owne person to do or execute and therein at all times in his owne person or by his sufficient Deputy shall be ayding and assisting as well for the doing and executing thereof and the returning thereof As also shall bear and pay all such charges thereof as to the Sheriff by reason of the said office should appertain except mans meat and horse meat And also the said C. D. for himselfe his Heires Executors and Administrators and every of them doth covenant promise and grant to and with the said A. B. his Heirs Executors and Administrators and every of them by these presents that the said C. D. his Heires Executors Administrators or Assignes shall and will well and truly from time to time receive all such extracts and processe whatsoever wherewith the said A. B. as Sheriff of the said County of Y. is or shall be chargeable to receive and that the said C. D. his Heires Executors Administrators and Assgnes shall and will well and truly collect levy and gather all Fines Issues and Amerciaments Seisures Fee-farms Rents Profits Certainties Pipe-silver Chequer-silver and all manner of Debts Duties and Demands whatsoever wherewith the said A. B. as Sheriff of the said County of Y. his Heirs Executors and Administrators their or any of their Goods Chattels or Lands may in any wise be charged or chargeable and the same to pay to his Highnesses use at such times as the said A. B. is charged or chargeable to pay the same and thereof and of every part and parcel thereof to acquit and discharge as wel the said A. B. his Heires Executors and Admnistrators and every of them as also all and singular their and every of their Goods and Chattels Mannors Messuages Lands Tenements and Hereditaments And also that he the said C. D. his Heires Executors Administrators or Assignes shall and will from time to time acquit and discharge or otherwise sufficiently save and keep harmlesse the said A. B. his Heires Executors Administrators and Assignes And also all his their goods and chattels Lands Tenements and Hereditaments whatsoever of and from all manner of Execution or of Executions of prisoners whatsoever which to the office of Sheriswick shall appertain forfeitures fines amerciaments imprisonments paines penalties or impositions whatsoever to be charged levyed or imposed upon the said A B. Sheriff of the said County of Y. his Heires Executors Administrators or Assignes his or their or either of their goods or chattels Lands Tenements or Hereditaments by reason of any mis-feasance or non-feasance omissions default delay contempt or cause whatsoever of the said C. D. his Deputy or Deputies Attorney or Attorneys Clark or Clarks Bayliff or Bayliffs or other person whatsoever not doing or insufficient doing his or their duty concerning the said office of Sheriffe or Under-sheriffe And that neither he the said C. D. nor any his Assignes Deputies Clarks or Attorneys shall or will intermeddle with the execution or returning of any Leters or commandements from his Highness the Lord Protector or any of his Highnesses Privy Councell without the privity notice and direction of the said A. B. then first had And the said C. D. for himselfe his Heires Executors Administrators and Assignes and every of them doth further covenant and grant to and with the said A. B. his Heires Excutors and Administrators by these presents that hee the said C. D. shall receive into his custody all prisoners to be committed to his charge and them sasely and honestly shall keepe untill they shall be brought and delivered into the Goale or Prison of the said County there to be safely kept by the Gaoler or keeper of the same Gaole or Prison untill by due course of Law they shall be delivered And of such prisoners as shall be convicted or attainted shall make or cause to be made due Execution according unto the quality of the judgement against every of them to be pronounced AND that the same C. D. shall and will within sixe dayes next before the beginning of every Terme which shall be during the time of the said Sheriffe-wicke well and truly deliver and certifie unto the said A. B. a true Note or Certificate in writing under his hand of all such VVrits of Execution whatsoever as before the Terme shall be come to his hands with the name and sir-name of the party and parties for whom the said Execution is to be done and also the name and sir-name against whom the same is to be executed and the summe and summes of money thereby severally to bee levyed and what is done therein upon every such WRIT or PROCES In Consideration of all which premisses the said A. B. is contented and pleased that the said C.
accompt without demanding any allowance or allowances therefore of the said A. B. his heirs executors administrators or assignes and the said C. D. doth further for the consideration aforesaid for himself his heirs executors administrators and assigns for every of them covenant promise grant and agree to and with the said A. B. his heirs executors administrators and assignes by these presents that the said C D. his executors or administrators shall and will from time to time and at all times hereafter well duly and truly satisfie and pay all and singular such summ and sums of money as he the said C. D or any deputy Clark or Clarks Bayliff or Bayliffs substitute or substitutes under him shall at any time and times and all times levy and receive by vertue or reason of any writ or writs Processe of Extent Liberate Capias ad satisfaciendum Fieri facias Elegit Distringas nuper Vice-comes against any former Sheriff or any other writ or writs of execution or warrants whatsoever according to the purport and true tenure of any such writ or writs warrant or warrants respectively and in such manner as by the same respectively shall be limited required or appointed and shall from time to time sufficiently save harmlesse and defend the said A. B. his heirs executors and administrators of for and from all and every such summ and summs of money as aforesaid And further he the said C. D. his heirs executors administrators or assignes shall and will at his and their own proper costs and charges conduct and safe delivery make of all such prisoners as are or hereafter shall be in the Custody of the Goal for the said County of Y. to such person and persons and to such place and places as the said A. B. shall by writ warrant or other precept or commandment or by vertue and in respect of his said office be commanded or bound to deliver the same And further shall and will also at his and their own proper costs and charges execute or cause to be executed all such persons as at any time during the time aforesaid shall be convicted and put in execution according to their several judgments if the same person or persons be not by any lawfull authority reprieved into the said Goal And the said C. D. doth further for himself his heirs executors administrators and assignes and every of them covenant grant promise and agree to and with the said A. B. his heirs executors administratos and assignes by these presents that he the said C. D. his executors administrators shal wil upon the discharge giving up of the said office to such as shall succeed in the said office of Sheriff-wick of and for the said County of Y. in due form of law deliver or cause to be delivered by Indenture to be made between the said A. B. and his successors in the said office to the said successor of the said A. B. in the said office or to his Deputy for the time being all such prisoners as then shall be in the custody of the said A. B. or of any of his Deputies or Ministers with the causes of their detainments and imprisonments and all such iron implements and things as shall be in the custody of the said C. D. belonging to the common Goal of the said County or to the officers of the same And also all writs processe warrants and other things which then shall be in his hands and custody in respect of the office of Sheriswick of in and for the said County of Y. And the said C. D. dorh further for himselfe his heirs executors administrators and assigns covenant promise grant and agree to and with the said A. B. his heirs executors and administrators by these presents that he the said C. D. his heirs executors or administrators shall and will from time to time and at all times hereafter discharge defend and save harmlesse as well the said A. B. his heirs Executors and administrators and his and their lands and tenements goods and chattels aswell against his Highnesse the Lord Protector and all other whatsoever of and from all manner or pains corporal and pecuniary forfeitures fines amerciaments debts accounts duties and demands whatsoever hereafter lawfully to be commenced prosecuted imposed demanded or demandable of or against the said A. B. his heirs executors or administrators or his or their lands goods tenements and chattels for or by reason of any escape of any prisoner or prisoners whatsoever now under execution or under arrest or hereafter to be had in execution or under arrest for any manner of debt damage trespass account or other duties or wrong or for any treason selony or other offence whatsoever or for any other or by reason of not appearance of any person arrested at the day limited for the appearance in any Court or Courts or before any Judge or Judges or Justices whatsoever or for or by reason of any false return not return or mis-return of any writ warrant or processe or for any other misbehaviour negligence or larges of the said C. D. his Bailiffs or Officers in executing or negligence in executing or not in executing of the said office of Sheriswick for the said County of Y. of or for or by reason of the not levying answering or not paying of any sum or sums of money which shall or may or ought to be collected or received by vertue or by reason of the said office of the Sheriswick of the said A. B. or having relation thereunto or by reason of any writ or writs of assistance for the levying of any sums of money wherewith the said A. B. shall or may be charged or chargeable of or for any matter clause or thing having relation to the said office and to the intent that the said C. D. may the better perform the execution of the said office the said A. B. is contented and pleased and doth hereby grant unto the said C. D. that he the said C. D. shall have to his own use the benefit of such Bonds and Covenants as shall be taken of any person or persons wherein the same person or persons shall become bound unto the said A. B. as Sheriff of the said County of Y. with condition for their of any of their appearance in any Court or elsewhere before any Commissioners of his Highnesse the Lord Protector And of all Obligations taken or to be taken of any Bayliffes or their sureties and of all other Bonds and Covenants which are or shall be made to the said A. B. as the Sherif of the said County of Yorke except the Covenants herein contained and the Bonds and Obligations taken or to be taken for the performance of the said Covenants and every of them except before excepted and shall and may sue and prosecute the same in the name of the said A. B. his Executors and Administrators at the proper costs and charges of the
levy of the Goods and Chattels which late were of P. R. of c. deceased at the time of his death in the hands of W. T. Executor of the Testament and last Will of the said P. R. the Testator a certain debt of 200 l. which the said E. F. in the said Court hath recovered against the said W. T. the Executor as by the said Writ now delivered to the said Sheriffe in forme of Law to be executed more at large appeareth And whereas the said E. F. hath informed the said high Sheriffe and Under-sheriffe that divers goods chattels and debts which were the said P. R. the Testator at the time of his death to the value of his said debt of 200 l after the death of the said P. R. the Testator came to the hands of the said W. T. the Executor within the said County to be administred and that the Executor since the death of the said P. R. the Testator came to the hands of the said W. T. the Executor within the said County to be administred and that the Executor since the death of the said P. R. the Testator hath wasted the same so that unlesse the said Sheriffe shall upon the said Writ of Fieri facias make his returne to this or the like effect viz. That the said Goods and Chattels which were the said P. R. the Testator at the time of his death to the value of the said two hundred pounds did after the death of the Testator come to the hands of the said Executor within the said County of Y. to be administred and that the said Executor hath wasted the same so that the said Sheriff cannot by vertue of the said Writ of Fieri facias do execution thereupon of the goods and chattels as is thereby required And so that also the said E. F. cannot by course of Law have the benefit of his said recovery whereupon the said High-Sheriff and his under-Sheriff being desirous to do what to them or either of them by vertue of their said Office appertaineth for the surtherance of Justice in that behalfe giving credit to the said assertion and affirmation of the said E. F. the said High-Sheriff at his earnest request hath upon the said Writ of Fieri facias in form of Law returned to his Highnesses Justices of the said Court of Common Pleas a Devastavit of the Goods and Chattels which were the said Testators at the time of his death and came to the hands of the said Executor to be administred to the said value of the said debt of two hundred pounds Now therefore these presents do witnesse that the said E. F. and T. P. for the indempnity and saving harmlesse of the said High-Sheriffe and Under-Sheriffe and of their and either of their Clerks of for and concerning the making of the said return in case the assertion and information of the said E. F. be not true do by these presents Covenant and grant joyntly and severally for themselvs and every of them and for their and every of their Executors and Administrators to and with the said A. B. and C. D. and either of them their and either of their Executors and Administrators that they the said E. F. and T. P. or some of them shall and will at all times hereafter discharge acquit and save harmelesse the said A. B. and C. D. and either of them their and either of their Clerk or Clerks and the Heires Executors and Administrators of them and every of them for and concerning all all manner of actions suits complaints losses vexations and troubles whatsoever which shall at any time hereafter be commenced attempted brought or prosecuted against them or any of them by the said P. R. the Executor his Executors or Administrators or by any other person or persons touching or concerning the said returne or by reason or occasion thereof And shall and will from time to time beare and pay to to them the said Sir A. B. and C. D. all such sum and summes of money damages costs and expences as against them or either of them or against their or either of their Executors or Administrators shall be adjudged decreed or ordered or which they or any of them shall from time to time by reason or occasion aforesaid be put unto or shall necessarily lay out or be enforced to pay by reason of any such action suit complaint molestation vexation or trouble And for the true performance of all and singular which said premisses the said E. F. and T. P. doe by these presents binde themselves joyntly and severally and their and either of their Heires Executors and Administrators to the said Sir A. B. and C. D. in the summe of 300 l. of good c. to be paid to them or either of them their or either of their Executors or Administrators if default or breach of the Covenant aforesaid shall be made In witnesse c. A discharge to the Sheriffe for a Prisoner from him to whom the prisoner is indebted KNow all men by these presents that I A. B. of C. in the County of York have remised released acquitted and discharged and by these presents doe for mee my Heires Executors Administrators and Assignes remise release and fully and absolutely acquit and discharge E. F. high Sheriffe of the said County of Y. and G. H. his Under-sheriff their Heirs Executors and Administrators of and from all and all manner of Escapes as well voluntary as negligent and of and from all actions cause and causes of actions for or concerning the enlarging or setting at liberty of the body of L. M. taken at my suite by vertue of a Capias ad satisfac to the said Sheriffe directed of ten pounds debt and fourty shillings costs of suit returnable in the Court of Common-Pleas in Easter Terme last past and I the said A. B. do hereby discharge the said Sheriffe from all actions reckonings duties and demands whatsoever concerning the executing of the said Capias ad satisfac In witness whereof c. Or Thus KNow all men by these presents that I A. B. of c. have remised released and quit claimed and by these presents do remise release and quit claim unto C. D. Esq now Sherif of the said County of Y. all and all manner of actions suits troubles and incumberances whatsoever which I might may or ought to have against him for or concerning the discharging or setting at liberty L. M. of N. in the said County Gent. being arrested and imprisoned upon a Capias ad satisfaciendum out of the Court of Common Pleas at Westminster for an hundred pounds debt and twenty shillings costs at my suit returnable from the day of Easter in one month last past In witnesse whereof I have hereunto set c. A Condition that the Sheriff executing a Writ may detaine out of the goods and lands extended so much mony c. THE CONDITION c. That whereas the within bound A. B.
c. Ass 13 E. 3. Avowry 105. If my Horse be in the keeping of another man he may be distrained if I be amercied in the Leet for stopping the High-way c. 47 E. 3. 12. But if an Inne-holder be amercied the horse of a stranger cannot be distrained 10 H. 7. fol. 21. Note that in 8 R. 2. Avowry 194. If one be amercied in the Sheriffs tourn the Sheriff may distrain throughout the whole County and in like manner if the amerciament be in a Leet throughout all the precincts of the Leet The Statute of 1 E. 4. expresly appoints that no fine or amerciament in the Tourn or Leet shal be levied unlesse it be certified at the next sessions of the peace by Indenture inrolled there and by processe made from the Justices of Peace to the Sheriffe or Steward How Presentments in Leets shall be traversable NOte Scard saith that if a thing be presented at the day in a Leet this is as Gospel if it passe that day without being repealed And therefore if a false presentment be made he shall have an action of false imprisonment the same day against the prosecutors but if he stay until another day it is otherwise and he who is amercied there for purpresture or other Nusance in Avowry for the amerciament he shall traverse in no point Wilby If it be presented that he hath levied a Ditch over the Highway if the presentment be false he shall have trespasse against him who throwes it down by force of such presentment And so of my house abated by reason of such false imprisonment Hil. 21. E. 3. Bar. 271. He who is amerced in a Leet may traverse the resiancy but he shall not say that the place where c. is within another view 4 E. 3. 12. 10 E. 3. 5. 41 E. 3. 26. But if he hath been sworn in my Leet he shall not have the traverse 4 E. 3. 31. 10 E. 3. 9. The Method of keeping the Sheriffs Tourn or Court Leet LEt the Sheriffe or Steward make a Precept unto the Bayliffe to summon the Court by a reasonable time to wit fifteene or sixteene dayes before the Court be kept if it be lesse time it is sufficient in Law the Precept must be made according to this subsequent President A. B Esquire Sheriff of the County of Y. To the Bayliffe of the Liberty or Weapentake of S. greeting I command you that you diligently summon the Court with view of franke-pledge to be held within the said Liberty the sixteenth day of August next ensuing about the hour of eight in the forenoon of the same day at the common Tollbooth of R. And this given under the seale of my Office the twenty eighth day of July in the yeare c. By the Sheriffe If it be a Court Leet held in a particular Hundred or Mannor of any Lord then the form of the Precept is thus A. B. Gent. Steward of I. N Esquire of his Hundred or of his Mannor of O. to the Bayliffe of the same Hundred or Mannor greeting Commanding thee that thou summon this Court with the view of Frank-pledge of the said Hundred or Mannor to be held at the accustomed place of S. the 16. day of August next ensuing And this given under my seale the twenty eighth day of July in the year c. By me A. B. Steward After the Steward hath placed himself in the Court he must first enter the title of the Court in the beginning of the Court-Roll with the name of the place where the Court is holden in this manner The entry of the Court ss The view of Frank-pledge with the Court of A. B. Sheriffe of the County of Y. there held on Tuesday the 16. day of August in the yeare c. By the Sheriff If In the Lords Court then thus ss The view of Frank-pledge with the Court of I. N. Esquire there held on Tuesday the c. By A. B. Steward Then cause the Bayliffe to make three Proclamations repeating them after the Steward in this manner Proclamation ALL manner of persons who were summoned to appear here this day to serve His Highnesse the Lord Protector and the Sheriffe or the Lord of the Mannor for his Court now holden draw near and give your attendance and every one answer to his name as he shall be called upon pain and peril that may fall thereon After all are called and those that are absent be marked to be amercied then the Steward shall cause the Bayliff again to make other three Proclamations viz. O yes c. causing the Bayliff to say Proclamation IF any man will be Essoyned come into Court and you shall be heard and all such persons as were Essoyned the last Court let them come in now and warrant their Essoyns otherwise they will be amercied And if any desire to be essoyned by the Tythingman or other neighbour then for the first Court they may be essoyned The Essoyn must be entred in this manner A. B. is essoyned by C. D. c. Inquire if there be any tenant in the Mannor that hath any action or cause of action since the last Court day let him put in his plaint sedente curiâ viz. the Court sitting and it shall be entred Inquire if there be any Precepts attachments or distresses depending in the Court rolls call them openly in the Court and know if the Bayliffe have executed them Also if there be any old Plaints depending in the Court Roll before this court holden cause the parties to be called before the inquest be charged Then impannel the Inquest comanding the fore-man to lay his hand upon the book swearing him as follows You shall sweare that you shall diligently inquire and true presentment make of all such things as you shall be charged with concerning his Highnesse the Lord Protector or the Lords Court of the Mannor you shall well and truly keep his Highnesses Counsel your Fellowes and your owne you shall not conceale nor hide any thing for favour feare promise or affection you bear to any person or persons or present any thing for hatred or malice you beare to any man but you shall present and tell the truth according as things may or shall come to your knowledge by information or otherwise making a true presentment thereof without concealment so helpe you God c. After the fore-man is particularly sworne cause foure at once of the Inquest to lay their right hands together on the book swearing them in this manner The same oath which A. B. your fore-man on his behalfe hath made you and every of you shall well and truly keep on your behalfes so help you God Swearing the rest accordingly After they are all sworn cause the Bayliffe to number them as the Steward doth read them Then command the Bayliffe to make Proclamation saying after the Steward Proclamation YOu good men that are impannelled to enquire for his Highnesse the
walls houses or pales be made and erected or thrown downe or any wayes or paths opened or stopped to the damage of the people or if any waters be stopped or diverted out of their right course or if the common Rivers or watering places for Beasts be corrupted and annoyed with Hemp Hay and such like or if any encroachment be upon the Kings high way or any carrion or unwholsome thing be cast into the same The party offending for every time so doing forfeiteth 20 s. 33 H. 8. c. 17. 23 Inquiry is to be made of the defect of Bridges or Causwayes decayed and broken downe and who ought to repaire them The penalty is according to the discretion of the Iury upon the view 24 Inquiry is also to be made if Common Pounds be good and close to retain such distresse as shall be brought to them untill they be delivered thence by order of Law and to present such as ought to keep them in such order if they be taken This is also referred to the Iuries discretion 25 And forasmuch as high wayes especially in winter are very troublesome to travell in it was enacted the 1. 2. Ph. M. c. 8. That the Constable and Church-wardens of every Parish within this Common wealth should yearly upon Tuesday or Wednesday in Easter week assemble a number of the Parishioners and elect two honest men of them to be Surveyors of the high ways for one yeare and that they shall have authority to direct the persons that shall be appointed for the mending and repairing of them according to their discretion faithfully executing their office Every Surveyor neglecting his office and making default forfeits 20 s. Every person for every plowland in tillage or pasture within the parish and every person there keeping a draught or plough shall send every day that the ways are in mending one Waine or Cart with all necessaries convenient to carry things and also two able men with the same The penalty for every draught making default is 20 s. Every other Housholder Cottager Labourer not being an hired servant by the year shall by themselves or one sufficient Labourer upon every of the said dayes work there The penalty for every one making default every day 8 d. 26 You shall enquire if any Heyes Fences Dikes or Hedges next adjoyning on every side to any high or common wayes be not from time to time ditched scoured repaired and kept and all trees and bushes growing in the high-wayes be cut down by the owners of the ground or soyle whereby the wayes are opened and the people may have a more easie passage Every person not so doing forfeiteth 20 s. 18 Eliz 9. 27 You shall further enquire if any ancient bounds or Land-marks be withdrawn and taken away such as distinguish or divide Hundreds Parishes Tythings Commons Common-meadows and Common fields to avoid confusion and consequently dissention 18 Eliz. 2. Fined according to the discretion of the Jury 28 You shall further enquire if any common breakers of hedges or sences by which their neighbours ground is made subject to the incursions of Cattel which are the grounds of many actions of Trespasse to the disturbance of the peace of the Comonwealth Such offenders are to be stocked and whipped 29 You shall also enquire of the breach of any common Pownd to take away distresse out of it though the distresse be without cause Or if any shall rescue or take away by force any cattell which is distrained for any rent amerciament or other cause before it be in custodia legis in the custody of the Law or impounded it is presentable Fineable according to the discretion of the Iury. Or a Writ de pareo fracto lyeth against him as Common Law F. N. B. 139. 30 You shall also enquire if any assaults be committed whereby blood-shed ensueth to the disturbance of the people of this Common wealth is here inquireaable 1 R. 3. fo 1. The fine for the offence is accoding to the discretion of the Iury but commonly it is 3 s. 4 d. 31 You shall further enquire if any Rescous were committed upon the Sheriffe or his Baylifs in disturbance of them from the taking and detaining any person arrested An action lyeth against the offender at the Common Law 32 You shall enquire if there be within the precincts of this Leet any Common Barretors such as are common incendiaries of strife and discord amongst their neighbors and are ever fishing in troubled waters they are of both fexes scoulds brawlers inventers and dispersers of calumnies and reports whereby discord and inquietude ariseth in the Countrey Such persons must give sureties for their good behaviour being disturbers of the peace 33 You shall enquire if any Alehouse-keeper c. have permitted any Inhabitant or Townsman except labourers and handicrafts men or persons invited by Travellers to continue tipling or drinking in any such house The paine or forfeiture of the Alehouse-keeper for every such offence to the use of the poore of the Parish 10 s. 34 You shall enquire if any buy or cause to be bought any victuall or other thing coming towards any Fair or market to be sold in the same or shall make any bargain contract or promise for the having or buying of the same before it shall be in the Market c. such shall be judged a Forestaller He that is convict thereof is for the first time to be imprisoned for 2 moneths and losse of the value of the thing sold The 2d time imprisoned by the space of halfe a year and shall loose the double value of the goods c. The 3d time during his Highnesses pleasure and judgement of the Pillory forfeiting all his goods and chattels See Stat. 5 E. 6 cap. 14. 35 You shall enquire if any regrate any corne butter cheese or other dead or quick victuals whatsoever that shall come to any Fair or Market to be sold and doth sell the same againe in any Faire or Market holden in the same place or within four miles thereof shall be judged a Regrator The judgement of a Forestaller 36 You shall enquire if any do ingrosse and get into their hands or promise taking unlesse it be by demise grant or lease of Land any Corne growing in the Fields or otherwise butter cheese or other dead Victuall to the intent to sell again shall be reputed an illegall Ingrosser The same judgement of a Forestaller and Regrator 37 You shall enquire if any Baker shall make and put to sale any bread which is not of good and sufficient weight and assize according to the rate and prices of come and graine in the Markets adjoyning or such as is not wholsome nourishment for Man And that he set his owne signet upon every loafe of bread that he vends to the end that if it want weight it may be known in whom the fault lyes For the
he must be attended by the property of Knowledge as to be expert in the lawes of the Countrey and the customes of the Mannor and have ability to instruct and direct the Bayliffs and other ministers in dubious things Let us now descend to demonstrate his retainer into office c. A Lord of a Mannor may by parol retain one to be Steward of his Mannor and to hold the Courts thereof as well as a Bayliff may be and that by word and this retainer shall be as effectual in all points before discharge as the most effectual institution by Patent yet most commonly they have patents for their offices Co. 4. 30. and therewith accorderh 8 Eliz Dyer 248. Likewise it was adjudged in the common pleas in the Lady Julian Holcrofts case that whereas one was generally retained by the Lord of a Mannor by parol to be Steward of a Mannor and to keep his Courts that such Steward may take surrender of customary tenants out of the Court or make voluntary admittances or any other act incident to the office of a Steward for till such Steward be discharged he is Steward of the Mannor as well by the retainer by word as if he had a grant thereof by Patent Leon. fo 309. He represents the person of the Lord in many things for in the absence of the Lord he sitteth in Court as Judge to punish offences to determine controversies redresse injuries c. he acts some things in the Lords name and not in his own name for if the Steward admit any Copyholder or by special Authority or particular custome licence a Copyholder to Alien this admittance and licence shall be made in the Lords name and the entery in the Roll shall be Quod dominus per senescallum admisis licentiavit c. Co. of Copyholds fo 143. He must take care to Record and Enrol all the Conveyances of estates for it hath behn holden by some That if the Lord in open Court grant a Copyhold estate and no entry is made thereof in the Court Rolls that the grant is inavlid and that no collateral will make it valid Carthrop fo 47. But if the tenant have no Copy or lose his Copy the roll of the Court is a good evidence And if the wills be lost it is thought cleerly it may be supplyed by proof ibidem At every Court he is to swear some of the Tenants which is called the Homage these he chargeth with the Articles before mentioned and upon them they do present and upon this presentment the Steward is to proceed as upon the presentment in a Leet save onely that as it is said the Lord cannot bring an action of debt but is onely to distraine for the amerciament in this Court 2 H. 4. 24. For by the Common Law he hath no authority to assesse amerciaments or Fines in a Court-Baron but the suitors for they are the Judges and not the Steward Leonards rep first part 299. If the Steward take a bribe or use partiallity in any case depending before him of which crime many are too culpable or if by his Patent he be obliged to keep Court at certain times of the year and failes thereof the Lord receiving prejudice thereby not otherwise or if he be by his Patent obliged to keep Court upon demand or request to be made by the Lord and upon request and demand by the Lord he refuseth these and the like cases will make him subject to a forfeiture Co. of Copyholds fo 146. c. Of the Fees of the Court-Baron AS for the Fees of this Court they much differ and are by Law what they have been by custome time out of minde For some take the same Fees as are taken in the County court And other Courts take the Fees which follow The Stewards Fees FOr entring every Essoyne 00-00-02 Entering every action 00-00-02 Every Order entered 00-00-04 Entering a Declaration if it be large then more 00 00-04 Every Processe 00 00 04 Entering every plea or answer 00-00 04 Every Continuance 00-00-02 Every wager of Law and entry 00 00-02 Warrants for witnesses and summoning Juries 00-00-04 Every Non-suite and detraxit 00 00-04 Entering the Judgement 00 00-04 Satisfaction acknowledged 00-00 02 For removing and certifying a cause 00-06-08 The Bayliffs Fees FOr every Summons and entrance 00-00-08 For executing every Processe 00-00-04 For every shilling upon Judgment 00-00-01 For summoning the Jury 00-01-00 For summoning of Witnesses upon a Warrant 00 00-04 For every Oath 00 00-02 If there be Attorneyes then their Fees are FOr every cause if it be heard 00-01-00 For drawing the Declaration 00-00-06 For every Court the cause dependeth after he is reteined 00-00-06 See more in the Fees of the County Court The Oath of the Bayliff of a Mannor YOu shall swear that you shal well and truly serve his Highness the Lord Protector and the Lord of this Monnor for the year to come in the Office of Bayliff of the same Mannor and you shall duly and truly gather all such rents revenues or other yearly profits as shall be extracted out unto you and therefore you shall make and yield up a true account at the end of the said year and in every thing you shall well and honesty behave your self in the said office during the time aforesaid So help you God c. The Bayliff must be sworn before the Court end The form and method of Presentments which are to be drawn by the Steward I shall not trouble you with being copiously performed by Mr. Wilkinson in his office of Sheriffs fo 218 219 220 c. onely take these subsequent for methods sake The finding of the death of a Tenant and of a Surrender made to the use of his Will with an admission of the Tenant according to the Will THe Homage do further present that A. B. the elder Copyhold tenant of this Mannor dyed after the last Court and that he the said A. B. before his death that is to say the tenth day of May in the year c did surrender into the hands of the Lord of this Mannor by the hands of C. D. Copyhold Tenant of the said Mannor all and singular his Copyhold lands Tenements and Hereditaments holden of this Mannor to the behoofe and use of his Testament and last Will. And now at this Court came E. F. the eldest son of the said A. B. and doth bring here into the Court the Testament and last Will of the said A. B. bearing date c. before G. H. Deputy Commissary of I. A. in and through the whole Arch Deaconry of W. approved the tenor of which said Will as to the Copyhold lands doth follow in these words that is to say Item I give unto E. my Son c. as by the said Testament and last Will of the said A. B. more at large appeareth And he doth crave of the grace of the Lord to be admitted to
under-sheriff and one E. F. by which the under-sheriffe doth acknowledge that he is to pass the whole account c. and to get a discharge for the same and for that purpose the Sheriffe hath security Neverthelesse for the better security the Sheriffe doth by these presents binde the said E. F. c. Covenant by the Sheriff not to charge the said E. F. c. if he may be relieved and saved harmlesse by the undersheriff and his sureties Covenant that the under sheriffe shall not open returne serve or execute any Writs for Knights for the Parliament Nor open execute or answer any Letters of his Highnesse or the Councell directed to the Sheriffe without his speciall warrant Covenant that the Vnder-sheriffe shall receive all dues and fees to his owne use without rendering any account to the said Sheriff Covenant to execute the office without committing extortion c. Covenant to execute answer returne all processe writs precepts and Commandmentsdirected to the Sheriff c. Covenant to save the Sheriff c. harmlesse from all fines issues and amerciaments c. for not executing not filing neglecting mis-executing c. any writs processe precepts warrants or commandments c. or other misdemeanors Covenant to keep all the County Courts of the said County at usuall times places c. And to appoint Attorneyes or Deputies of Record in the Court of Record And constitute Deputies in every Hundred c. Covenāt to make ready at his proper charges the place where the Assizes c. shall be holden And shall give notice to the Sherif in convenient time of the times and places where his personall attendance shall be requisite Covenant to collect and levy to the use of his Highnesse the goods of felons and fugitives of persons outlawed and of persons attaint and convict of treason murther or felony And to collect gather up all fines amerciaments extracts certainties fee-farms pipe-silver c which he shall have warrant or authority to seize levy or collect c. And shall at such dayes and terms as the said A. B is or shall be required to enter into accōpt of the Court of Exchequer touching the said office the which the said C. D. shall do in the name of the said A. B. Sheriff c. And the same accompt shall at his own costs and charges prosecute with effect until it be finished without demanding any allowances of the Sheriffe And shall pay into the Exchequers receipt all such summs of money as upon the said accompt shall be found in arrearages within one year next after the feast of S. Michael next c. and in the name of the said A. B. shall obtain a Quietus est out of the said Court of Exchequer for him the said A. B c. within one year next after the said feast of S. Michael c. paying all fees duties and charges rewards c. which shall be required of the said A. B. without demanding any allowance Covenant that the said C. D. shall truly satisfie and pay all summs of money as he or any Deputy c. shall at any time levy and receive by vertue of any writ Process of Extent Cap. ad sat Fieri sac Elegit c. against any former Sheriff or any other writs of Execution c. whatsoever according to the true tenure of any such writ c. Covenant that the said C. D. shall at his proper costs and charges conduct and safe delivery make of all such prisoners as are or shall be in the custody of the Goal to such persons and to such places as the said A. B. by writ warrant c. or by vertue of his said office be commanded or bound to deliver the same And shall at his proper charges execute or cause to be executed all such persons as shall be convicted and put in execution according to their severall judgments c. Covenant that the said C. D. shall up on the discharge giving up of the said office to such as shal succeed deliver by Indentune to be made betweene the said A. B. his successors to the successor of the said A. B. all such prisoners as then shall be in the custody of the said A. B. with the causes of their detainments imprisonments and all such iron implemēts as belong to the Cōmon Goal of the said County c. And also all writs processe warrants and other things which shall be in his custody in respect of the said office Covenant that the said C. D. shall and will frō time to time discharge defend and save harmlesse the said A. B. c. and his goods lands c. against his Highnesse and all other of and from all maner of pains corporall and pecuniary forfeitures fines c. hereafter lawfully to be commenced prosecuted imposed c. of or against the said A. B. c. or his lands c. for or by reason of any escape of any prisoner now under execution or arrest or hereafter shall be or for not appearing of any person arrested at the daylimited c. or for or by reason of any false returne not returne or mis-return of any warrant c. of the said C. D. c. or for negligence in executing or not in executing of the said office by reason of the not levying answering or not paying of any summs of money c. or by reason of any writ or writs of assistance for the levying of any summs of money wherewith the said A. B. shall or may be charged c. Grant that the said C. D. shall have to his owne use the benefits of such Bonds and Covenants as shall be taken of any persons with condition for their appearance in any Court or else-where and of all obligations to be taken of any Bayliffs c. and all other bonds coven which are or shal be made to the said A. B. except c. and shall may sue and prosecute the same in the name of the said A. B. at the cost and charges of the said C. D. and the money recovered to have to his owne use without any account thereof c. The said A. B. not acquitting any of the said bonds judgements c. without the consent of the said C D. unless the said A. B. shall be enjoyn'd thereto by order or course of law or equity Covenant that the said C. D. shall and will from time to time keep harmless the said A. B his c. of from all costs and charges and damages which may arise by reason of any bill in equity or of any Non-suit or judgement obtained by any person of or upon any of the said covenants obligations or bonds to be taken for appearance as aforesaid or by reason or means of removing any action or suit in the name of the said A. B. upon the same Covenants c. The said C. D. is bound to the said A. B. in the summ of 500 l.